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 ''"•'6 doctrine of equity :a commentary on 
 
 3 1924 018 798 250 
 
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 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018798250 
 
THE 
 
 DOCTRINE OF EQUITY. 
 
 COMMENTARY ON THE LAW 
 
 AS ADMINISTERED BY 
 
 BY 
 
 JOHN ^AMS, JuN., Esq., 
 
 BAaBIST^K AT LAW. 
 
 imxi\ ^mtxkm (Biiim. 
 
 WITH THE NOTES AND REFERENCES TO THE PREVIOUS EDITION 
 
 OF 
 
 J. E. LUDLOW AND J. M. COLLINS. 
 
 AND ADDITIONAL NOTES AND REFERENCES TO RECENT ENGLISH 
 AND AMERICAN DECISIONS, 
 
 BY 
 
 HENRY WHARTON. 
 
 PHILADELPHIA: 
 
 T. & J. W. JOHNSON & CO., 
 
 LAW BOOKSELLERS, PUBLISHERS, AND IMPORTERS, 
 
 635 CHESTNUT STREET. 
 
 1859. 
 
Entered, according to Act of Congress, in the year 3859, 
 
 BY T. & J. W. JOHNSON S. CO., 
 
 In the Clerk's Office of the District Court for the Eastern District of Pennsylrania. 
 
 C. SHERMAN & SON, PRINTEKS, 
 Corner SCTGiith and Cherry Streets, Philadelphia. 
 
PREFACE 
 
 TO THE THIRD AMERICAN EDITION. 
 
 The task of the present editor has been, in the main, 
 that of supplying notes and references which should 
 embody the more important English and American de- 
 cisions, upon the topics of which this work treats, since 
 the publication of the last edition. He has, in some 
 instances, however, enlarged and added to his predeces- 
 sors' notes, though leaving them in general to stand as 
 they were written. 
 
 The editor would willingly have made the annota- 
 tions to the last division of this work, on Pleading and 
 Practice, more systematic and complete than they are ; 
 but he found, that in view of the great changes which 
 time and altered circumstances have introduced into the 
 course of Chancery procedure, both in England and the 
 United States, it would not have been possible to do so 
 without adding greatly to the bulk of the book, with no 
 corresponding advantage to the reader. In this country, 
 indeed, between those States in which the distinct equi- 
 'able jurisdiction is abolished, and those in which the 
 •amework of the Court of Chancery still stands, there 
 
IV PREFACE. 
 
 is to be found a wide range of diversities, chiefly of local 
 origin, and irreducible to any common system ; while in 
 none, it is believed, is the older practice, as set forth in 
 the text of this work, in all respects followed. Every 
 State looks in such matters chiefly to its own statutory 
 and judicial regulations; and these it would not have 
 been appropriate or convenient to embody in the notes 
 to so elementary a work, as the present. 
 
 In England, the alterations which the last few years 
 have produced, are of the most remarkable character; 
 so that, indeed, the whole structure of Chancery must 
 be considered as remodelled. In the first place, the 
 pleadings have been simplified to an extreme degree. 
 An informal claim is substituted in many cases for a 
 bill; and disputed questions under wills, deeds, con- 
 tracts, and the like, may be submitted directly to the 
 Court in the form of a case stated. The bill, when 
 used, is only a concise printed narrative of the material 
 parts of the complainant's case, with the prayer for the 
 appropriate relief at the end ; for the interrogatories are 
 now filed separately. The answer is substituted in 
 every respect for the old modes of defence ; and is a con- 
 cise statement of the respondent's case, whether in bar 
 or avoidance ; and he is, in his turn, authorized, if he 
 choose, to exhibit interrogatories to the complainant, 
 and to compel the production of documents, without re- 
 course to a cross-bill. Exceptions for impertinence on 
 either side are done away with, the only penalty thereon 
 being the costs, if any be occasioned. Objections for 
 the non-joinder or misjoinder of parties, where not 
 abolished altogether, are made as little productive of in- 
 jury and delay as possible. Bills of revivor and supple- 
 ment no longer exist ; their place being supplied by a 
 greater latitude of amendment, and by the power t 
 
PREFACE. V 
 
 make corresponding orders in the cause. The clumsy 
 system of the examination of witnesses on interrogato- 
 ries is abolished ; and testimony is now taken orally, 
 before the examiner, in the presence of the parties, as 
 in suits at law, while objections to the competency of 
 witnesses are no longer allowed. That fons malc/riim, 
 the oflBce of Master, is done away, and its duties are 
 transferred to the Court at chambers, assisted by clerks. 
 The Court now settles all questions of law, and even a 
 disputed legal title, itself, without directing an action or 
 a case to a Court of law. A new tribunal, called the 
 Court of Appeal, with co-ordinate appellate jurisdiction 
 to the Chancellor, has been created. And finally, very 
 judicious means for the reduction of the expenses of ' 
 "Chancery proceedings have been adopted, the principal 
 one of which is the substitution of compensation by 
 salaries to the officers of the Court, in lieu of the old fee 
 system. Other ameliorations and improvements are in 
 progress; and before long the English Chancery, once 
 the stronghold of abuses and delay, will be made one of 
 the simplest, most effective, and cheapest tribunals in 
 the world. Even now, the radical, though well-regu- 
 lated, reforms in this and other branches of the law, in 
 England, patiently effected in the face of a thousand 
 obstacles, present a marked contrast to the slow progress 
 made in this direction by most of the United States. It 
 is to be hoped, indeed, that the subject will soon be 
 taken up by the profession throughout the whole of our 
 country, with energy and earnestness, so that we may 
 no longer deserve the reproach of being left behind in 
 the race of real improvement by one of the most con- 
 servative of nations. 
 
VI PREFACE. 
 
 The references throughout the book have been care- 
 fully corrected, and an alphabetical table of all the Re- 
 ports and Text-books cited in them, has been prefixed, 
 which will furnish an explanation of the abbreviations 
 employed. The additions of the present editor are dis-. 
 tinguished by the use of brackets. 
 
 Henry Wharton. 
 
 Philadelphia, April, 1855. 
 
PREFACE 
 
 TO THE SECOND AMERICAN EDITION. 
 
 In order to adapt the following celebrated treatise of 
 Mr. Adams upon the general principles of Equity Juris- 
 prudence and Practice in Courts of Chancery, to the 
 wants of the profession in the United States, the notes 
 to the present edition have been prepared; in which, it 
 is believed, as many of the most important decisions in 
 the Federal and State Courts, as could conveniently be 
 contained within the compass of a single volume, have 
 been cited or reviewed. 
 
 In the hope that the annotations may be found not 
 without value to student and practitioner, the work is 
 submitted to the profession. 
 
 James R. Ludlow, 
 John M. Collins. 
 
 Philadelphia, Sept. 10th, 1852. 
 
ADYERTISEMENT. 
 
 In preparing this treatise for the press, the chief de- 
 sign of its lamented author was to present to the pro- 
 fession a comprehensive and condensed view of the 
 general Principles of the Doctrine of Equity, as admin- 
 istered in the Court of Chancery, and an outline of the 
 proceedings by which those principles are enforced. It 
 comprises the substance, with additions, of three series 
 of Lectures, delivered before the Incorporated Law So- 
 ciety, in the years 1842-5. The completion of the work 
 in its present form occupied from that period a consi- 
 derable portion of the time and labor of the author; 
 and, with the exception of the last four chapters of the 
 fourth book, the treatise had received his final correc- 
 tions, and arrangements were making for its immediate 
 publication, when he was so suddenly called away in 
 the autumn of last year. 
 
 The thanks of the author's friends are due to Mr. 
 James Willis, of the Equity Bar, for his valuable as- 
 sistance in the correction of the unfinished chapters 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 REFERRED TO ARE THOSE BETWEEN BRACKETS [ ]. 
 
 BOOK I. 
 
 OP THE JURISDICTION OF COUETS OF EQUITY AS REGARDS THEIR 
 POWER OF ENFORCING DISCOVERY. 
 
 CHAPTEK I. 
 Of Discovery, . . . . . . •. 1 
 
 CHAPTER II. 
 
 Of Commissions to examine Witnesses abroad, . . 23 
 
 Of Perpetuation of Testimony, . . . . .24 
 
 Of Examinations de bene esse, . . . . 25 
 
 BOOK 11. 
 
 OF THE JURISDICTION OF THE COURTS OP EQUITY IN CASES IN 
 WHICH THE COURTS OF ORDINARY JURISDICTION CANNOT ENFORCE 
 A RIGHT. 
 
 CHAPTEE I. 
 Of Trusts, both Ordinary and Charitable, . . .26 
 
X CONTENTS. 
 
 CHAPTEK II. 
 
 Of Specific Performance, . . . • .77 
 
 Of Election, ...... 92 
 
 Of Imperfect Consideration, . . . • .97 
 
 Of Discharge by Matter in pais of Contracts under Seal, . 106 
 
 CHAPTEK III. 
 
 Of Mortgages. 
 
 Perfect, . . . . .110 
 
 Imperfect, ...... 122 
 
 CHAPTER IV. 
 
 Of Conversion, .... . 135 
 
 Of Priorities, ...... 145 
 
 Of Tacking, ....... 163 
 
 p. 
 
 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. 
 
 OP THE JURISDICTION OF THE COURTS OP EQUITY IN CASES IN 
 WHICH THE COURTS OP ORDINARY JURISDICTION CANNOT ADMIN- 
 ISTER A RIGHT. 
 
 CHAPTER I. 
 Of Account, • • . . . 220 
 
CONTENTS. XI 
 
 CHAPTER II. 
 
 Of Partition, ....... 229 
 
 Of Assignment of Dower, ..... 233 
 
 Of Subtraction of Tithes, . . . . .235 
 
 Of Ascertainment of Boundary, . . . . 237 
 
 CHAPTER III, 
 Of Partnerehip, . . . . . .289 
 
 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 PLEADIN.G AND PaOCEDDRE BY WHICH THE 
 JURISDICTION or THE COURTS OF EQUITY IS EXERCISED. 
 
 CHAPTER I. 
 Of the Bill, ....... 299 
 
 CHAPTER II. 
 Of Parties, ...... 312 
 
 CHAPTER III. 
 
 Of Process and Appearance, ..... 324 
 
xii CONTENTS. 
 
 CHAPTER lY. 
 Of the Defence, ...... 331 
 
 CHAPTER V. 
 Of Interlocutory Orders, . . . • ■ 348 
 
 CHAPTER VI. 
 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 TEXT-BOOKS AND REPORTS, 
 
 CITED IN THIS VOLUME. 
 
 Adams on Ejectment. 
 
 Adolphus and Ellis's R. (England). 
 
 Alabama Reports. 
 
 Ambler's R. (England). 
 
 American Law Journal, New Series. 
 
 American Law Register. 
 
 American Leading Cases (Hare and 
 
 Wallace). 
 Arkansas Reports. 
 Ashmead's R. (Pennsylvania). 
 Atkyns' R. (England). 
 
 Bail Court Cases (England). 
 Bailey's Equity R. (South Carolina). 
 Baldwin's R. (Circuit Court, U.S.) 
 Barbour's Chancery R. (New York). 
 Barbour's Supreme Court R. (New York). 
 Barnewall and Alderson's R. (England). 
 Barnewall and Cresswell's R. (England). 
 Barr's R. (Pennsylvania). 
 Bay's R. (South Carolina). 
 Beames on Costs in Equity. 
 Beatty's R. (Ireland). 
 Beavan's R. (England). 
 Bennett's R. (Missouri). 
 Bibb's R. (Kentucky). 
 Bingham's New Cases (England). 
 Bingham's R. (England). 
 Binney's R. (Pennsylvania). 
 Blackstone's (Wm.) R. (England). 
 Blaind's Chancery R. (Maryland). 
 Blackford's R. (Indiana.) 
 Blatchford's R. (Circuit Ct. U. S.) 
 Bligh's R. (England). 
 Bligh's R. New Series (England). 
 B. Monroe's R. (Kentucky). 
 Bosanquet and Puller (England). 
 Bradford's Surrogate R. (New York). 
 Brightly's Nisi Prius R. (Pennsylvania). 
 Brookenbrough's R. (Circuit Ct. U. S.) 
 Browne's Chancery Cases (England). 
 Browne's Parliamentary Cases by Tom- 
 lins (England). 
 
 Burrill on Assignments for the Benefit of 
 
 Creditors. 
 Burrough's R. (England). 
 Blur's Trial, U. S. 
 Busbee's Eq. R. (North Carolina). 
 
 Caines's Cases in Error (New York). 
 
 Calendar of Chancery Proceedings. 
 
 California R. 
 
 Call's R. (Virginia). 
 
 Cameron and Norwood's R. (North Caro- 
 lina). 
 
 Carolina Law Repository (North Caro- 
 lina). 
 
 Carter's R. (Indiana). 
 
 Chambers on Infancy. 
 
 Chancery Cases (England). 
 
 Chandler's R. (Wisconsin). 
 
 Charlton (R. M.) R. (Georgia). 
 
 Cheves's R. (South Carolina). 
 
 Clark and Finelly's R. (England). 
 
 Clarke's R. (New York). 
 
 Coke upon Littleton. 
 
 Coke's Institutes. 
 
 Collyer's R. (England). 
 
 Common Bench R. (England). 
 
 Comstock's R. (New York). 
 
 Connecticut R. 
 
 Conner and Lawson's R. (Ireland). 
 
 Cooke's R. (Tennessee). 
 
 Cooper's Chancery Cases (England). 
 
 Cooper's R. (England). 
 
 Cooper's (C. P.) R. (England). 
 
 Cowen's R. (New York). 
 
 Cowper's R. (England). 
 
 Cox's Chancery Cases (England). 
 
 Cox's Chancery Rep. (England). 
 
 Craig and Phillips's R. (England). 
 
 Cranch's R. (Sup. Ct. U. S.) 
 
 Croke's R. (Elizabeth, James I, Charles I. ) 
 
 Curtis R. (Circuit Ct. U. S.) 
 
 Cushing's R. (Massachusetts). 
 
 Cushman's R. (Mississippi). 
 
XIV 
 
 TEXT-BOOKS AND REPORTS. 
 
 Dallas's K. (Pennsylvania). 
 
 Dana's R. (Kentucky). 
 
 Daniell's Chancery Practice. 
 
 Day's R. (Connecticut). 
 
 De Gex and Smale's R. (England). 
 
 De Gex, Macnaghten and Gordon's R. 
 
 (England). 
 Desaussure's R. (South Carolina). 
 Devereux's Eq. R. (North Carolina). 
 Devereux and Battel's Equity R. (North 
 
 Carolina). 
 Dickens's R. (England). 
 Douglass's R. (Michigan). 
 Dow's R. (England). 
 Drewry's R. (England). 
 Drury's R. (Ireland). 
 Drury and Warren's R. (Ireland). 
 Dudley's R. (Georgia). 
 Duer's R. (New York). 
 
 East's R. (England). 
 
 Eden's R. (England). 
 
 Edward's Chancery R. (New York). 
 
 Elmer, New Jersey Digest. 
 
 English's R. (Arkansas). 
 
 Equity Draftsman. 
 
 Equity R. (England). 
 
 Equity Cases Abridged (England). 
 
 Exchequer R. (England). 
 
 Fairfield's R. (Maine). 
 
 Finch's R. (England). 
 
 Florida Reports. 
 
 Foster's R. (New Hampshire). 
 
 Freeman's Chancery R. (Mississippi). 
 
 Freeman's R. (England). 
 
 Gallison's R. (Circuit Ct. U. S.) 
 
 Georgia Decisions. 
 
 Georgia Reports. 
 
 Gilbert on Uses, by Sugden. 
 
 Gill and Johnson's R. (Maryland). 
 
 GiU's R. (Maryland). 
 
 Gilman's R. (Illinois). 
 
 Glyn and Jamison's R. (England). 
 
 Grattan's R. (Virginia). 
 
 Gray's R. (Massachusetts). 
 
 Green's Chancery R. (New Jersey). 
 
 Greene's R. (Iowa). 
 
 Greenleaf's Cruise's Digest. 
 
 Greenleaf on Evidence. 
 
 Greenleaf's R. (Maine). 
 
 Hale's Jurisdiction of the House of 
 
 Lords. 
 Hale's Pleas of the Crown. 
 Hall and Twell's R. (England). 
 Halstead's Chancery R. (New Jersey). 
 Hammond's R. (Ohio). 
 Hardin's R. (Kentucky). 
 
 Hare's R. (England). 
 Hargrave's Coke upon Littleton. 
 Harper's Equity R. (South Carolina). 
 Harper's Law R. (South Carolina). 
 Harrington's Chancery R. (Michigan). 
 Harrington's R. (Delaware). 
 Harris and Gill's R. (Maryland). 
 Harris and Johnson's R. (Maryland). 
 Harris and MoHenry's R. (Maryland). 
 Harrison's R. (New Jersey). 
 Hawk's R. (North Carolina). 
 Haywood's R. (North Carolina). 
 Hempstead's R. (Circuit Court U. S.) 
 Henning and Munford (Virginia). 
 Heyward's R. (Tennessee). 
 Hill's Equity R. (South Carolina). 
 Hill's R. (New York). 
 Hill and Dennio's R. (New York). 
 Hill's Law R. (South Carolina). 
 Hill on Trustees. 
 Hoffman's Chancery Practice. 
 Hoffman's Chancery R. (New York). 
 Hopkins's R. (New York). 
 House of Lords' Cases (England). 
 Howard's R. (Mississippi). 
 Howard's R. (Supreme Court U. S.) 
 Humphrey's R. (Tennessee). 
 
 Illinois Reports. 
 
 Indiana Reports. 
 
 Institutes, see Coke. 
 
 Iowa Reports. 
 
 Irish Chancery R. 
 
 Iredell's Equity R. (North Carolina). 
 
 Irish Equity Reports. 
 
 Irish Law and Equity R. New Series. 
 
 Jacob's R. (England). 
 
 Jacob and 'Walker's R. (England). 
 
 Jarman's Bythewood's Conveyancing. 
 
 Jarman on Wills. 
 
 Jarman's Powell on Devises. 
 
 Johnson's Chancery R. (New York). 
 
 Jones's Equity R. (North Carolina). 
 
 Jones and Latouche's R. (Ireland). 
 
 Jurist (England). 
 
 Kay's R. (England). 
 
 Kay and Johnson's R. (England) 
 
 Keen's R. (England). 
 
 Kelly's R. (Georgia). 
 
 Kent's Commentaries on American Law. 
 
 Kernan's R. (New York). 
 
 Knapp's Privy Council Cases (England). 
 
 Law Journal R. New Series, Chancery 
 (England). ' 
 
 Law Review (England). 
 
 Leading Cas. in Equity, White and Tudor, 
 American ed. by Hare and Wallace. 
 
TEXT-BOOKS AND REPORTS. 
 
 XV 
 
 Leigh's R. (Virginia). 
 Lewin on Trustees. 
 Littell's R. (Kentucky). 
 Littell's Select Cases, or 6 Litt. (Ken- 
 tucky). 
 Lloyd and Goold's R. (Ireland). 
 Louisiana Annual R. 
 
 MoCord's Chancery R. (South Carolina). 
 
 MoCord's Law R. (South Carolina). 
 
 McLean's R. (Circuit Court U. S.) 
 
 MoMuUen's Chancery R. (South Caro- 
 lina). 
 
 Macnaghten and Gordon's R. (England). 
 
 Macqueen's Practice. 
 
 Maoqueen's Scottish Appeal Cases (Eng- 
 land). 
 
 Maddock and Geldart (England). 
 
 Haddock's Chancery Practice. 
 
 Haddock's R. (England). 
 
 Maine Reports. 
 
 Hanning's R. (Hiohigan). 
 
 Manning and Granger's R. (England). 
 
 Harshall's (A. K.) R. (Kentucky). 
 
 Marshall's (J. J.) R. (Kentucky). 
 
 Martin and Yerger's R. (Tennessee). 
 
 Maryland Chancery Decisions. 
 
 Maryland Reports. 
 
 Mason's R. (Circuit Court U. S.) 
 
 Maule and Selwyn's R. (England). 
 
 Meeson and Welsby's (England). 
 
 Meigs's R. (Tennessee). 
 
 Merivale's R. (England). 
 
 ]Metoalf s R. (Massachusetts). 
 
 Mississippi Reports. 
 
 Missouri Reports. 
 
 Mitford's Chancery Pleadings, 
 
 MoUoy's R. (Ireland). 
 
 Monroe's R. (Kentucky). 
 
 Monroe's (Ben.) R. (Kentucky). 
 
 Montague and Ayrton's Bankruptcy R. 
 (England). 
 
 Montague, Deacon, and De Gex's R. 
 (England). 
 
 Moore's Privy Council Cases (England). 
 
 Munford's R. (Virginia). 
 
 Murphey's R. (North Carolina). 
 
 Hylne and Craig's R. (England). 
 
 Mylne and Keene's R. (England). 
 
 New Chancery Cases, see Young and 
 
 CoUyer. 
 New Hampshire Reports. 
 New York Reports. 
 North Carolina Term Reports. 
 
 Ohio Reports. 
 
 Ohio State R. New Series. 
 
 Paige's R. (New York). i 
 
 Paine's R. (Circuit Court tJ. S.) 
 
 Parsons's Equity Cases (Pennsylvania). 
 
 Patton and Heath's R. (Virginia). 
 
 Peck's R. (Tennessee). 
 
 Peere Williams's R. (England). 
 
 Pennsylvania Law Journal. 
 
 Pennsylvania R. 
 
 Pennsylvania State R. 
 
 Penrose and Watts's R. (Pennsylvania). 
 
 Peters's Circuit Court R. (U. S.) 
 
 Peters's R. (Supreme Court V. S.) 
 
 Phillipps on Evidence. 
 
 Phillips's R. (England). 
 
 Pickering's R. (Hassachusetts). 
 
 Porter's R. (Alabama). 
 
 Precedents in Chancery (England). 
 
 Purdon's Digest (Pennsylvania Statutes). 
 
 Queen's Bench R. (England). 
 
 Railway Cases (England). 
 
 Randolph's R. (Virginia). 
 
 Rawle's R, (Pennsylvania). 
 
 Reports, Coke's (England). 
 
 Rhode Island Reports. 
 
 Rice's Equity R. (South Carolina). 
 
 Richardson's Equity R. (South Carolina). 
 
 Riley's Equity R. (South Carolina). 
 
 Robinson's R. (Virginia). 
 
 Root's R. (Connecticut). 
 
 Roper, Husband and Wife, by Jacob. 
 
 Rotuli Parliamentorum. 
 
 Russell's R. (England). 
 
 Russell and Mylne's R. ^England). 
 
 Sanford's Chancery R. (New York). 
 
 Sanford's Superior Ct. R. (New York). 
 
 Saxton's Chancery R. (New Jersey). 
 
 Soaramon's R. (Illinois). 
 
 Schoales and Lefroy's R. (Ireland). 
 
 Scott's New Reports (England). 
 
 Selden's R. (New York). 
 
 Select Chancery Cases (England). 
 
 Selwyn's Nisi Prius. 
 
 Sergeant and Rawle's R. (Pennsylvania). 
 
 Seton on Decrees. 
 
 Shepley's R. (Maine). 
 
 Shower's Parliamentary Cases (Eng- 
 land). 
 
 Siderfin's R. (England). 
 
 Simons's R. (England). 
 
 Simons's R., New Series (England). 
 
 Simons and Stuart's R. (England). 
 
 Smales and GifTord's R. (England). 
 
 Smedes and Marshall's Chancery R. 
 (Mississippi). 
 
 Smedes and Marshall's R. (Mississippi). 
 
 Smith's Chancery Practice. 
 
 Smith's Leading Cases, by Hare and 
 Wallace. 
 
XVl 
 
 TEXT-BOOKS AND REPORTS. 
 
 Smith's Mercantile Law. 
 Sneed's R. (Tennessee). 
 Speer's Equity R. (South CaroUna). 
 Stephen's Blackstone's Commentaries. 
 Stephen on Pleading. 
 Stewart's R. (Alabama). 
 Stewart and Porter's R. (Alabama). 
 Stockton's R. (New Jersey). 
 Story on Equity Jurisprudence. 
 Story on Equity Pleading. 
 Story on Partnership. 
 Story's R. (Circuit Court U. S.) 
 Strange'a R. (England). 
 Strobhart's Equity R. (South Carolina). 
 Strobhart's Law R. (South Carolina). 
 Sugden on Powers. 
 
 Sugden on the Law of Property as ad- 
 ministered in the House of Lords. 
 Sugden on Vendors and Purchasers. 
 Sumner's R. (Circuit Court XT. S.) 
 Swan's R. (Tennessee). 
 Swanston's R. (England). 
 
 Tamlyn's R. (England). 
 
 Tennessee Reports (Overton). 
 
 Term Reports (England). 
 
 Texas Reports. 
 
 Turner's R. (England). 
 
 Turner and Russell's R. (England). 
 
 Tyrwhitt's Exch. R. (England). 
 
 Vermont Reports. 
 Vernon's R. (England). 
 Viner's Abridgment. 
 Virginia Revis^ Code. 
 
 Vesey Senior's R. (England). 
 Vesey Junior's R. (England). 
 Vesey and Beames's R. (England). 
 
 Walker's Chancery R. (Michigan). 
 
 Walker's R. (Mississippi). 
 
 Wallace Jr.'s R. (Circuit Ct. U. S.) 
 
 Washington's Circuit Court R. (U. S). 
 
 Washington's R. (Virginia). 
 
 Watts's R. (Pennsylvania). 
 
 Watts and Sergeant's R. (Pennsylvania). 
 
 Wendell's R. (New York). 
 
 Wharton's R. (Pennsylvania). 
 
 Wharton's Digest of Pennsylvania R. 
 
 Wheaton's R. (Sup. Ct. U. S.) 
 
 White on Supplement. 
 
 Wigram on Discovery. 
 
 Wigram on Wills. 
 
 William Blackstone's R. (England). 
 
 Williams on Executors. 
 
 Wilhams's R. (Vermont). 
 
 Wisconsin Reports. 
 
 Woodbury and Minot's R. (Circuit Court 
 
 U. S.) 
 Wright's R. (Ohio). 
 
 Yeates's R. (Pennsylvania). 
 
 Yerger's R. (Tennessee). 
 
 Younge's R. (England). 
 
 Younge and Collyer, Exchequer R. (Eng- 
 land). 
 
 Young and Collyer's New Chancery 
 Cases (England). 
 
 Zabriskie's R. (New Jersey). 
 
TABLE OF ENGLISH CASES. 
 
 THE PAGES EEFEERED TO AEE THOSE BETWEEN BRACKETS [ J. 
 
 
 
 PACE 
 
 
 
 PAGE 
 
 Aberdeen Ry. Co. v. Blaikie 
 
 Armstrong v. Armstrong, 
 
 377 
 
 Brothers, .... 
 
 . 183 
 
 Arundel 1 v. Phipps, 
 
 151 
 
 Abernethy v. Hutchinson, . 
 
 . 213 
 
 Ash V. 
 
 Rogle, 
 
 65 
 
 Ackroyd v. Sraithson, . 
 
 33, 138 
 
 Ashby 
 
 V. Ashby, . 
 
 142 
 
 Acton V. Woodgate, 
 
 . 31 
 
 Ashburton v. Ashburton, 
 
 285 
 
 Adair v. New River Co. 
 
 . 321 
 
 Ashhurst v. Mill, . 
 
 189 
 
 Adams v. Claxton, 
 
 165, 386 
 
 Aston 
 
 V. Heron, . 
 
 199 
 
 V. Dowding, 
 
 . 413 
 
 Atkinson v. Gray, 
 
 252 
 
 V. Fisher, . 
 
 . 17 
 
 
 V. Henshaw, . 
 
 353 
 
 Adderley v. Dixon, 
 
 . 83 
 
 Att.-Gen. V. Andrew, . 
 
 72 
 
 Agar V. Fairfax, . . 230 
 
 ,231,234 
 
 
 V. Arnold, 
 
 71 
 
 V. Regent's Canal Co. . 
 
 . 212 
 
 
 V. Aspinwall, 
 
 67 
 
 Agassiz V. Squire, 
 
 . 185 
 
 
 V. Bristol, Mayor of. 
 
 71 
 
 Ahearne v. Hogar, 
 
 . 184 
 
 • 
 
 V. Butcher, 
 
 400 
 
 Aldborough v. Trye, 
 
 186 
 
 
 V. Caius College, . 
 
 61,69 
 
 Alden v. Gregory, 
 
 . 176 
 
 
 V. Clack, 
 
 39 
 
 Aldrich V. Cooper, 257,263,27 
 
 3,272,275 
 
 
 V. Clarendon, Earl of, 
 
 75 
 
 Aldridge v. Harper, 
 
 . 107 
 
 
 V. Cleaver, 
 
 211 
 
 Aleyn v. Belchier, 
 
 . 186 
 
 
 V. Compton, . 
 
 67 
 
 Alexander t. Crosbie, . 
 
 . 171 
 
 
 V. Cooper's Company, 
 
 71 
 
 Allen V. Maepherson, . 
 
 248, 249 
 
 
 V. Corp. of London, 
 
 
 Allfrey v. Allfrey, 
 
 . 343 
 
 
 9,14, 
 
 15, 17 
 
 Allison V. Herring, 
 
 . 221 
 
 
 V. Cradock, . 
 
 310 
 
 Ambrose v. Dunmow Union, 
 
 . 199 
 
 
 V. Dixie, 
 
 75 
 
 Ames V. Parkinson, 
 
 56,63 
 
 
 V. Draper's Co. . 68, 
 
 69,71 
 
 Amphlett V. Parke, 
 
 . 139 
 
 
 V. Dublin, Mayor of. 
 
 67,75 
 
 Ancaster v. Mayer, 
 
 . 265 
 
 
 V. East Retford, . 
 
 11 
 
 Ancaster, Duke of, v. Mayer, 
 
 261, 263 
 
 
 V. Exeter, Mayor of, 
 
 68 
 
 Anderson v. Wallis, 
 
 . 302 
 
 
 V. Fishmongers' Co. 
 
 414 
 
 V. Guichard, 
 
 . 355 
 
 
 V. Flint, 
 
 69 
 
 V. Noble, . 
 
 . 196 
 
 
 V. Foord, 
 
 74 
 
 Anderton v. Yates, 
 
 . 287 
 
 
 V. Forbes, . .21 
 
 1,212 
 
 Andrews v. Lockwood, 
 
 . 406 
 
 
 V. Foster, . . 41 
 
 1,412 
 
 V. Partington, 
 
 . 287 
 
 
 V. Foundling Hospital, 
 
 75 
 
 V. Walton, . 
 
 . 397 
 
 
 V. Goldsmiths' Co. . 
 
 310 
 
 Angel V. Smith, . 
 
 
 . 353 
 
 
 V. Green, 
 
 72 
 
 Angell T. Angell, . 
 
 
 . 24 
 
 
 V. Grocers' Company, 
 
 77 
 
 V. Davies, . 
 
 
 . 400 
 
 
 V. Heelis, 
 
 321 
 
 Anon. T. Walker, . 
 
 
 . 56 
 
 
 V. Ironmongers' Co. 
 
 73 
 
 Anonymous, . 
 
 
 . 283 
 
 
 V. Jackson, . . 8 
 
 -1,238 
 
 Ansdell v. Ansdell, 
 
 218 
 
 357, 375 
 
 
 V. Larabe, 
 
 17 
 
 Ansley v. Bainbridge, 
 
 
 . 105 
 
 
 V. Leeds, Duke of, . 3 
 
 7,115 
 
 Antrobus v. Davidson, 
 
 
 . 270 
 
 
 V. Liverpool, Mayor of, . 
 
 61 
 
 V. Smith, 
 
 
 . 100 
 
 
 f. Lubbock, . 
 
 75 
 
 Apperly V. Page, . 
 
 
 241, 322 
 
 
 V. Lucas, 
 
 4 
 
 Appleby v. Duke, . 
 
 
 . 391 
 
 
 v. Manchester and Leeds 
 
 
 Archer v. Hale, . 
 
 
 . 107 
 
 
 Railway Company, . 
 
 21S 
 
 Arkwright, Ex parte, 
 
 
 . 161 
 
 
 V. Mangles, . 
 
 136 
 
XVIU 
 
 TABLE OF ENGLISH CASES. 
 
 Att.-Gen. v. Merchant Tailors' Co. 
 V. MuUay, 
 V. Newark, Corporation 
 
 of, . . 
 V. NichoU, 
 V. Pargeter, . 
 V. Pearson, 
 V. Poole, Corporation of, 
 
 v. Pretyman, 
 V. Ray, . 
 V. Sands, 
 v. Severne. 
 
 V. Sheffield Gas Consu- 
 mers' Co. 
 
 V. Shore, 
 
 V. Shrewsbury 
 
 V. Sitwell, 
 
 V. Skinners' Company 
 
 V. Smythies, 
 
 V. Southgate, 
 
 V. Todd, 
 
 V. Wansay, 
 
 V. Whitchurch 
 
 V. Wilkins, 
 
 V. Wilson, 
 
 Attwood V. Banks, 
 
 V. Small, 
 
 Austen v. Hasley, 
 
 V. Taylor, . 
 
 V. Boyes, . 
 
 Aveling v. Knipe, 
 
 Averall v. Wade, . 
 
 Aylett V. Ashton, . 
 
 211 
 61 
 67 
 172 
 71 
 71, 75 
 265 
 73 
 72 
 71 
 69, 162 
 268, 319 
 . 198 
 176, 177, 189, 321 
 . 289 
 . 42 
 . 246 
 . 35 
 270, 273 
 46, 91 
 
 Bacon v. Jones, . 
 
 V. Spottiswoode, 
 Badcock, Re, 
 Bailey v. Richardson, 
 Bailey v. Taylor, . 
 V. Weston, 
 Bainbrigge v. Blair, 61 
 Bainford v. Bainford, 
 Baggett V. Meux, . 
 Baglehole v. Walters, 
 Baker v. Harris, . 
 V. Hart, 
 V. Bradley, . 
 Balfe V. Lord, 
 Balfour v. Welland, 
 Ball V. Ball, . 
 V. Coutts, 
 V. Harris, 
 V. Mannin, . 
 V. Montgomery, 
 Ballard v. White, . 
 Balmain v. Shore, 
 Balmanno v. Lumley, 
 Bamford v. Bamford, 
 Bampton v. Birohall, 
 Bannatyne v. Leader, 
 
 310 
 290 
 
 74 
 211 
 
 74 
 373 
 
 67, 310 
 
 68 
 
 25 
 
 51 
 
 290, 372 
 
 Barfield v. Kelly, . . . .413 
 Bariatinski, Re, . . . . 290 
 
 Baring v, Nash 230 
 
 Barker v. Wardle, . . .261 
 
 Barnard V. Wallis, . . 196,359 
 Earned v. Laing, . . . 360 
 
 Barnes v. Racster, . . . 274 
 V. Grant, .... 31 
 Barnett v. Weston, . . .163 
 Barnesdale v. Lowe, ... 35 
 Barrett v. Tickell, . . .356 
 
 Barttett v. Bartlett, . . .351 
 Bartley v. Bartley, ... 16 
 
 Barry v. Wrey, . . 115 
 
 Bartle v. Wilkins, . . .115 
 
 Bartlett v. Gillard, ... 21 
 
 Basset v. Nosworthy, . 149, 151, 162 
 Bastard v. Clarke, . . .413 
 
 Bate V. Bate, . . . .18 
 
 Batemann v. Willoe, . . .197 
 Bath, Earl of, v. Sherwin, . . 202 
 Batty V. Chester, . . . .175 
 Bayley v. Leominster, Corporation 
 
 of, 89 
 
 Beadle v. Burch, . . . .176 
 
 Beach v. Keep, .... 80 
 
 Bear v. Smith, . . . .262 
 
 Beatson v. Beatson, ... 80 
 
 Beattie v. Johnston. . . .316 
 
 Beauchamp v. Huntley, Marquis of, 260 
 
 Beaumont v. Bramley, . . 170, 175 
 
 V. Meredith, . 242, 321 
 
 Beavan v. Gilbert, . . . 385 
 
 Beavan v. Carpenter, ... 25 
 
 Beckford v. Wade, ... 63 
 
 218, 357 Belcher v. Varden, . . .111 
 
 219 Belchier v. Butler.' . . . 162 
 
 297 Belfast, Earl of, v.' Chichester, . 24 
 
 112 Bell V. Cureton, ... 31, 302 
 
 219 V. Dunmore, . . ' . 347 
 
 195, 359 V. Phyn 246 
 
 353, 355, 410 v. Whitehead, . . .215 
 
 390 Bellamy v. Sabine, . . 157, 177 
 44, 45 Bellwood v. Wetherell, . .9 
 . 179 Benan v. Rufford, . . . 212 
 
 . 164 Benbow v. Townsend, . . 28 
 
 . 377 Bennett v. CoUey, ... 55 
 45, 184 Ex parte, ... 61 
 
 . 126 V. Ingoldsby, . . .167 
 
 . 156 V. Smith, ... 77 
 
 . 283 Benson v. Baldwin, . . .238 
 288, 289 Bent v. Young, .... 19 
 
 . 255 Bentley v. Bates 247 
 
 . 183 Bentinck v. Willink. . . 196, 359 
 49 Benyon v. Nettlefield, . . 3, 20 
 
 386, 387 Beresford v. Archbishop of Ar- 
 
 . 245 magh, 46 
 
 . 380 Beresford v. Driver, . . 12, 14 
 
 . 390 Berkeley v. Rider, . . . 347 
 408,413 Berkhampstead Free School, Ex 
 
 15 parte 75 
 
TABLE OF ENGLISH CASES. 
 
 XIX 
 
 Bernal v. Donegal, 
 
 
 , 
 
 361 
 
 Bower v. Cooper, 
 
 
 79 
 
 Bernard v. Drought, 
 
 
 160 
 
 Bowes V. Feme, . 
 
 
 15 
 
 Berney v. Sewell, 
 
 
 122, 353 
 
 Bowles V. Orr, 
 
 
 221 
 
 Besoh V. Frolioh, . 
 
 
 
 243 
 
 V. Weeks, 
 
 
 39 
 
 Belts V. Menzies, . 
 
 
 
 6 
 
 Boys V. Ancell, . 
 
 
 108 
 
 Biddulph's and Poole's Triis 
 
 ts. 
 
 re 
 
 290 
 
 Boyse v. Colclough, 
 
 
 249 
 
 Biederman v. Seymour, 
 
 
 
 262 
 
 V. Rossborough, ., 
 
 
 249 
 
 Bignold V. Audland, 
 
 
 205, 206 
 
 Bozon V. Farlow, . 
 
 
 82 
 
 V. Springfield, . 
 
 
 
 399 
 
 Bradbury v. Manchester, &c. 
 
 r'. 
 
 
 Bilbie v. Lumley, . 
 
 
 
 189 
 
 R 
 
 
 218 
 
 Bill V. Cureton, . 
 
 
 31, 302 
 
 Brace v. Blick, 
 
 
 373 
 
 Binns v. Parr, 
 
 
 
 351 
 
 V. Marlborough, Duchess of, 
 
 
 Birkett v. Hibbert, 
 
 
 
 288 
 
 
 162 
 
 164 
 
 Birkley v. Presgrave, . 
 
 
 
 271 
 
 V. Whenert, 
 
 
 83 
 
 Birley v. Chorlton, 
 
 
 
 212 
 
 Braddick v. Thompson, 
 
 
 193 
 
 Birmingham v. Kirwan, 
 
 
 
 94 
 
 Bramwell v. Halcomb, 
 
 
 215 
 
 Bishop V. Church, 
 
 
 
 172 
 
 Brandon v. Brandon, . 
 
 
 397 
 
 B. J., Re, . 
 
 
 
 292 
 
 V. Robinson, . 
 
 
 42 
 
 Blachford v. Kirkpatriok, 
 
 
 
 87 
 
 Braybrooke v. Meredith, 
 
 
 54 
 
 V. Christian, . 
 
 
 
 183 
 
 Breadalbane v. Chandos, 
 
 
 170 
 
 Blackburn v. Stables, . 
 
 
 
 42 
 
 Brealey v. Collins, 
 
 
 84 
 
 V. Staniland, 
 
 
 
 414 
 
 Breeze v. English, 
 
 
 382 
 
 V. Warwick, 
 
 
 
 . 112 
 
 Brenan v. Preston, 
 
 
 233 
 
 Blacket v. Lamb, . 
 
 
 
 . 94 
 
 Brice v. Stokes, . 
 
 5 
 
 8,62 
 
 Blackeney v. Dufaur, 
 
 
 
 . 243 
 
 Bridge, re, . 
 
 
 293 
 
 Blackie v. Clarke, 
 
 
 
 . 177 
 
 v. Bridge, . 
 
 
 80 
 
 Blacklows V. Law, 
 
 
 
 . 45 
 
 Bridges v. Stephens, . 
 
 
 209 
 
 Blain V. Agar, 
 
 
 
 . 317 
 
 Bridget v. Hames, 
 
 
 317 
 
 Blair v. Bromley, . . 1 
 
 73 
 
 174, 177 
 
 Bridgewater, Diike of; v. Edwards, 
 
 238 
 
 Re, . . . 
 
 
 
 . 297 
 
 Briggs V. Penny, . 
 
 29,31 
 
 Blake V. White, . 
 
 
 
 . 107 
 
 Bright V. Hutton, . 
 
 
 239 
 
 Blakemore v. Glamorgan Canal 
 
 Bristed v. Wilkins, 
 
 
 133 
 
 Company, . . 211, 
 
 212,218 
 
 Bristow V. Warde, 
 
 
 93 
 
 Bland v. Winter, . 
 
 
 . 319 
 
 Broadhurst v. Balguy, . 
 
 59 
 
 382 
 
 Blandy v. Widmore, . 
 
 
 105 
 
 Brocklehurst v. Jessop, 
 
 , 
 
 125 
 
 Blaydes v. Calvert, 
 
 
 . 360 
 
 Brodie v. Barry, . 
 
 , 
 
 93 
 
 Blenkinsopp v. Blenkinsopp, 
 
 
 180 
 
 Bromfield ex parte. 
 
 . 
 
 143 
 
 Bligh V. Brent, 
 
 
 . 245 
 
 Bromley v. Smith, 
 
 
 321 
 
 Bloffeld V. Payne, 
 
 
 217 
 
 Brooke v. Hereford, Lord, . 
 
 230 
 
 232 
 
 Blomfleld v. Eyre, 
 
 
 281 
 
 v. Greathed, 
 
 122 
 
 353 
 
 Blount V. Hipkins, 
 
 
 265 
 
 Lord, V. Rounthw^aite, 
 
 
 91 
 
 Blundell v. Gladstone, . 
 
 
 199 
 
 Brookfield v. Bradley, . 
 
 121 
 
 285 
 
 V. Winsor, 
 
 
 242 
 
 Brookes v. Burt, . 
 
 , 
 
 315 
 
 Blunden v. Desart, 
 
 
 164 
 
 Brooks V. Stuart, . 
 
 107 
 
 319 
 
 Boehm v. Wood, . . 354, 
 
 36 
 
 0,361 
 
 Broom v. Broom, . 
 
 
 245 
 
 Bolton V. Liverpool, Corporation 
 
 rf, 15 
 
 Broome v. Monck, 
 
 . 
 
 141 
 
 Bond, Ex parte, . 
 
 
 . 288 
 
 Browell v. Read, . 
 
 
 353 
 
 V. Hopkins, 
 
 
 228 
 
 Brown v. Bamford, 
 
 , 
 
 45 
 
 V. Kent, 
 
 
 128 
 
 V. Blount, . 
 
 
 323 
 
 Booth V. Booth, . 
 
 
 59 
 
 T. Carter, . 
 
 
 146 
 
 V. Creswicke, 
 
 4C 
 
 0,408 
 
 v. Cole, . 
 
 
 110 
 
 Bootle V. Blundell, . 250, 
 
 37 
 
 7,378 
 
 V. Higgs, . 
 
 30 
 
 396 
 
 Bor V. Bor, .... 
 
 
 95 
 
 V. Lake, . 
 
 
 262 
 
 Borell V. Dann, . 
 
 7 
 
 9, 159 
 
 V. Lee, 
 
 
 268 
 
 Boschetti v. Power, 
 
 
 351 
 
 V. Lockhart, 
 
 
 115 
 
 Bostook v. North Stafford R. R 
 
 
 211 
 
 V. Tapscott, 
 
 , 
 
 240 
 
 Boughtoti V. James, 
 
 
 265 
 
 V. De Tastett, . 
 
 
 249 
 
 V. Boughton, . 
 
 
 263 
 
 V. Weatherby, . 
 
 
 173 
 
 Boultbee v. Stubbs, 
 
 
 107 
 
 Browne, re, . 
 
 
 280 
 
 Boulter v. Boulter, 
 
 
 198 
 
 Bruce, ex parte, . 
 
 
 125 
 
 Bouverie v. Prentice, . 
 
 
 
 238 
 
 Bruin v. Knott, . . 287 
 
 288 
 
 375 
 
XX 
 
 TABLE OF ENGLISH CASES. 
 
 Brunswick, Duke of, 
 
 King of, . 
 Brunswick v. Cambridge, 
 Bnckland v. Pocknell, . 
 Buckle V. Mitchell, 
 Buckley v. Barber, 
 Buckworth v. Buckworth, 
 Bugden v. Bignold, 
 Bullock V. Wheatley, . 
 Bulwer v. Astley, 
 Bunbury v. Bunbury, . 
 
 V. Winter, 
 Bunn, ex parte, 
 Burbidge, re, 
 Burch V. Coney, . 
 Burses, re, , 
 Burgess v. Burgess, 
 
 V. Wheate, 37, 50, 
 Buries v. Popplewell, . 
 Burley v. Charlton, 
 Burn V. Carvalho, 
 Burnham v. Bennett, . 
 Burrell's case, 
 
 V. Egremont, . 
 V. Nicholson, . 
 Burrough v. Philcox, . 
 Burroughs v. Elton, 
 
 V. Oakley, . 
 Burton v. Eggington, . 
 Butcher v. Butcher, 
 Butlin V. Masters, 
 Byde v. Masterman, . 
 Byne v. Vivian, . 
 Birchall v. Bradford, . 
 
 Cadman v. Horner, 
 
 Cadogan v. Kenneit, . 
 
 Cafe V. Bent, 
 
 V. Robarts, . 
 
 Calcraft v. Roebuck, . 
 V. West, 
 
 Caldeoott v. GrifEth, . 
 
 Caldwell v. Van Vlissengen 
 
 Calvert v. Godfrey, 
 
 Camp V. Moody, 
 
 Campbell v. Mackay, . 282, 
 V. Scott, 
 V. Solomons, 
 
 Cann v. Cann, . 
 
 Cannings v. Flower, , 
 
 Capel V. Girdler, 
 
 Capper v. Spottiswoode, 
 
 Carmichael v. Hughes, 
 
 Carpmael v. Powes, . 
 
 Carr v. Appleyard, 
 
 Carter v. Boehm, 
 
 Cartwright v. Cartwright, 
 
 Carver v. Bowles, 
 
 Carysfoote, re, . 
 
 Cass V. Cass, 
 
 Castellain v. Blumenthal, 
 
 11, 
 
 111, 
 
 7, 
 
 Hanover, 
 
 314 
 345 
 
 . 128 
 146, 153 
 . 246 
 . 287 
 . 273 
 . 56 
 270 
 198 
 . ■ 112 
 . 370 
 . 297 
 . 334 
 . 292 
 . 217 
 1, 113, 115 
 . 260 
 . 212 
 . 54 
 . 142 
 . 146 
 . 270 
 . 15 
 . 30 
 . 252 
 . 87 
 . 322 
 . 186 
 . 378 
 11, 306 
 . 191 
 63, 251 
 
 84 
 147 
 39 
 39 
 87 
 213 
 239 
 212 
 285 
 388 
 310, 335 
 215 
 206 
 24 
 287 
 52 
 128 
 287 
 370 
 371 
 179 
 45 
 94 
 297 
 372 
 356 
 
 Cathcart v. Lewis, . . . 317 
 Caton V. Lewis, . . . . J4 
 Catton V. Carlisle, . . .413 
 Caulfield 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 
 Chant V. Brown, . . . 6, 15 
 
 Chaplin v. Chaplin, . . . 288 
 Chapman v. Chapman, . 124, 309 
 V. Esgar, . . . 257 
 Chappel V. Purday, . . . 400 
 Cherry v. Boultbee, . . . 223 
 V. Mott, .... 71 
 Chervet v. Jones, ... 20 
 Chesterfield, Earl of, v. Janssen, . 187 
 Chippendale, ex parte, . . 124 
 
 Cholmondely v. Clinton, 
 
 113, 119, 191, 302 
 
 Christian v. Corren, ... 65 
 
 V. Foster, . . . 390 
 
 V. Taylor, . . .11 
 
 Christophers v. Sparke, . .115 
 
 Christ's Hospital v. Grainger, . 68 
 
 Church v. Kemble, ... 95 
 
 Churchman v. Ireland, . . 94 
 
 Claphara v. Shillito, . . .177 
 
 V. White, . . .356 
 
 Clare v. Wood, .... 132 
 
 Clarendon v. Barham, . . 263 
 
 v. Hornby,. . . 231 
 
 Claridge v. Hoare, . . . 3, 4 
 
 Clark V. Burgh 174 
 
 V. Drew, . . . 354 
 
 Clarke v. Bicker, . . .172 
 
 V. Freeman, . . . 217 
 
 V. Franklin, . . .139 
 
 T. Grant, .... 84 
 
 V. Ormonde, Earl of, . 259 
 
 V. Parker, . . .186 
 
 Re, . . . . 286, 297 
 
 V. Royle, . . .128 
 
 Clarke's Charity, In re, . . 76 
 
 Clay V. Willis, .... 256 
 
 Clayton v. Cookes, ... 65 
 
 V. Meadows, . . .376 
 
 V. Nugent, . . .376 
 
 V. Winchelsea, . . 338 
 
 V. lUingsworth, . , S3 
 
 Clayton's Case 221 
 
 Clementson v. Gandy, . . 95 
 
 Clements v. Bowes, . . . 32O 
 Clermont v. Tasburgh, . '. 84 
 
 Clowes V. Beck, . . , .' 392 
 Clifford V. Turrell, . . 83 382 
 
TABLE OF ENGLISH CASES. 
 
 XXI 
 
 Clinan v. Cooke, 
 
 . 
 
 87 
 
 Cradook v. Owens, 
 
 51, 139, 263 
 
 Close V. Wilberforce, . 
 
 , 
 
 142 
 
 V. Piper, 
 
 . 61 
 
 Clough V. Bond, . 
 
 56,58 
 
 Crawford v. Fisher, 
 
 . 26 
 
 V. Radcliffe, . 
 
 242 
 
 ,322 
 
 Crawshay v. Collins, . 
 
 . 246 
 
 Clowes T. Higginson, . 
 
 
 85 
 
 v. Maule, . 
 
 241, 245, 247 
 
 Clunn V. Crosts, . 
 
 
 408 
 
 V. Thornton, 
 
 . 203, 205 
 
 Cock V. Richards, 
 
 
 187 
 
 Craythorne v. Swinburne, 
 
 . 269 
 
 Cookell V. Taylor, 
 
 
 174 
 
 Creak v. Capel, . 
 
 . 351 
 
 Cockerell v. Cholmeley, 
 
 
 370 
 
 Greaser v. Robinson, . 
 
 . 301 
 
 Cogan V. Stephens, . 33 
 
 ,138 
 
 ,392 
 
 Creuze v. Hunter, 
 
 . 388 
 
 Colburn v. Simms, 
 
 
 219 
 
 Croft V. Day, 
 
 . 217 
 
 Colclough V. Evans, . 
 
 
 413 
 
 Crompton v. Wombwell, 
 
 . 413 
 
 Coleman v. Winch, . 
 
 
 165 
 
 Crosbie v. Tooke, . 
 
 . 177 
 
 V. Mellersh, . 
 
 
 226 
 
 Cross V. Cheshire, 
 
 . 240 
 
 Coles V. Sims, . 
 
 
 152 
 
 V. Sprigg, , 
 
 . 106 
 
 V. Trecothick, . 
 
 
 61 
 
 Crosse v. Bedingfield, . 
 
 . 20 
 
 Collard v. Allison, 
 
 
 218 
 
 Crossley v. Derby Gas O 
 
 ompany, 219 
 
 CoUett V. Morrison, . 
 
 
 169 
 
 Crowder v. Tinkler, 
 
 . 211 
 
 Collins V. Archer, 
 
 
 162 
 
 Crowfoot V. Mander, . 
 
 . 404 
 
 V. Wakeman, . 
 
 
 33 
 
 Crowley's case, . 
 
 . 197 
 
 Collis V. Robbins, 
 
 
 263 
 
 Cruikshank v. Mc Vicar, 
 
 . 309 
 
 CoUinson v. Wakeman, 
 
 
 360 
 
 Cruttwell V. Lye, 
 
 . 217, 246 
 
 V. Patrick, 
 
 
 80 
 
 Cudd V. Rutter, . 
 
 . 83 
 
 Colman v. Croker, 
 
 
 148 
 
 Gumming, re. 
 
 . 293 
 
 Colombine v. Chichester, 
 
 
 83 
 
 Curd V. Curd, 
 
 15, 382 
 
 Colyer v. Clay, 
 
 
 188 
 
 Curling v. Towshend, . 
 
 . 347 
 
 Coombe, ex parte, 
 
 
 124 
 
 Curtis V Curtis, . 
 
 234, 235, 236 
 
 V. London, Corporation of. 
 
 16 
 
 Custance v Bradshaw, 
 
 . 246 
 
 Coming, ex parte. 
 
 
 124 
 
 Cutler V. Simons, . 
 
 . 352 
 
 Commissioners of Donations 
 
 V. 
 
 
 Cutler's Trust, 
 
 . 4S 
 
 Wybrandts, 
 
 
 69 
 
 
 
 Connop V. Hayward, . 21 
 
 226 
 
 382 
 
 Dale V. Hamilton, 
 
 . 28, 35, 87 
 
 Const V. Harris, . 
 
 243 
 
 354 
 
 D'Almaine v. Boosey, . 
 
 . 215 
 
 Coningham v. Plunkett, 
 
 
 80 
 
 Daniel v. Skipwith, 
 
 . 120 
 
 Cook V. Black, 
 
 
 54 
 
 Darby v. Baines, . 
 
 . 233 
 
 V. Collinridge, 
 
 245 
 
 246 
 
 V. Darby, . 
 
 . 239 
 
 ■o Hutchinson, 
 
 
 33 
 
 D'Arcy v. Blake, . 
 
 . 51 
 
 Cooke V. Clayworth, 
 
 
 183 
 
 Darley v. Nicholson, . 
 
 . 199 
 
 V. Lamotte, 
 
 
 184 
 
 Darthez v. Clemens, . 
 
 . 226 
 
 Cookson V. Cookson, . 136 
 
 137 
 
 245 
 
 Dartmouth v. Holdsworth, 
 
 7 
 
 Coorg V. East Ind. Co. 
 
 
 8 
 
 Daubeny v. Cookburn, . 
 
 . 185 
 
 Coope V. Eyre, . 
 
 
 239 
 
 Davenport v. Bishopp, . 
 
 78, 146 
 
 V. Twynam, 
 
 
 269 
 
 v. Davenport, 
 
 . 208 
 
 Cooth V. Jackson, 
 
 
 87 
 
 Davis V. Frowd, . 
 
 . 262 
 
 Copis V. Middleton, 
 
 
 269 
 
 Davies v. Davies, 
 
 . 297 
 
 Corbyn i^ French, 
 
 
 71 
 
 V. Denby, . 
 
 . 112 
 
 Coslake v. Till, . 
 
 
 82 
 
 V. Quarterraan, . 
 
 . 302 
 
 Cottom V. Partridge, 
 
 
 224 
 
 Davis V. Bluck, 
 
 . 416 
 
 Cottingham v, Shrewsbury, , 
 
 313, 
 
 403 
 
 V. Gripps, . 
 
 . 11 
 
 Coulson V. White, 
 
 
 210 
 
 V. Dending, 
 
 . 112 
 
 Court V. Jeffery, . 
 
 
 316 
 
 V. Dowding, 
 
 . 121,285 
 
 Courtenay v. Williams, 
 
 223, 
 
 387 
 
 V. Humphreys, . 
 
 . 269 
 
 V. Courtenay, 
 
 
 39 
 
 V. Johnson, 
 
 . 233 
 
 Coventry v. Coventry, . 
 
 
 39 
 
 V. Marlborough, Duk 
 
 eof, 187,353 
 
 Cowell V. Edwards, 
 
 
 268 
 
 V. Strathmore, . 
 
 . 155 
 
 Cowtan V. Williams, . 
 
 
 206 
 
 V. Thomas, 
 
 . . Ill 
 
 Cox V. Allingham, 
 
 
 372 
 
 Dawson v. Paver, 
 
 . 212 
 
 Creditors of, 
 
 254, 
 
 256 
 
 Dawson, re. 
 
 . 292 
 
 Lady, case of, . 
 
 
 252 
 
 V. Jay, . 
 
 . 282 
 
 Crabtree v. Bramble, . 
 
 
 137 
 
 V. Lawes, 
 
 . 268 
 
 Craokfelt v. Bethune, . 
 
 
 64 
 
 Day V. Merry, 
 
 . 209 
 
XXll 
 
 TABLE OF ENGLISH CASES. 
 
 Deacon v. Smith, .... 36 
 Dearie v. Hall, . . 53, 56, 161 
 
 Dearman v. Wych, . . . 397 
 De Beau voir v. De Beauvoir, . 138 
 De Costa v. Scandret, . .179 
 
 Deeks v. Striut, . . . .250 
 Deerhurst, Lord, v. St. Albans, 
 
 Duke of, . . . .42 
 Deering v. Winohelsea, Earl of, 26S, 269 
 
 Deeth v. Hale 137 
 
 De Manneville v. De Manneville, 
 
 281,283 
 Dent V. Bennett, . . .185 
 
 Denton v. Davis, 
 Denys v. Locock, 
 
 V. Shruckburgh 
 Derby, Earl of, v. Atho], Duke of, 
 Derbyshire v. Home, . 
 Dering v. Earl Winchelsea, 
 Desboiough v. Harris, 
 De Themmines v. De Bonneval, 
 De Vaynes v. Morris, . 
 Devon, Duke of, v. Eglin, . 
 Devonshire v. Newenham, . 
 Dietrichsen v Cabburn, 
 Dickinson v. Grand Junction Canal 
 
 Co. 
 Dickson V. Gayfere, 
 Digby, Ex parte. 
 Dikes, Ex parte, 
 Dillon V. Coppin, 
 V. Parker, 
 Dilly V. Doig, 
 Dimes v. Steinburg, 
 Dinwiddle v. Bailey, 
 Dixon V. Wyatt, 
 Dobson V. Land, 
 Docker v. Somes, 
 Dodd V. Lydall, 
 Doddington v. Hallett, 
 Doe V. Lewis, 
 
 v. Manning, 
 
 v. Rolfe, . 
 
 V. Rusham, 
 
 V. Jones, 
 Doloret v. Kothschild, 
 Donaldson v. Beckett, 
 Donovan v. Needham, 
 Dos Santos v. Frietas, 
 Downe v. Morris, 
 Downes v. Grazebrook, 
 Downshire, Marquis of, 
 Drake v. Drake, 
 
 v. Martyn, 
 Druce v. Denison, 
 Drummond v. Pigou, 
 
 Re, . . . . 297 
 
 Dry den v. Frost, . . -Ill 
 
 Dubless V. Flint, . . .351 
 
 Dubost V. Beresford, . . . 216 
 
 Ex parte, , . .103 
 
 . Sandys, 
 
 144 
 
 338, 340 
 
 191 
 
 19 
 
 402 
 
 268, 269 
 
 203 
 
 71, 73 
 
 407 
 
 320 
 
 315 
 
 82 
 
 207 
 
 136 
 
 297 
 
 297 
 
 80 
 
 96 
 
 200 
 
 248, 353 
 
 221 
 
 410 
 
 118 
 
 64 
 
 223 
 
 268 
 
 146 
 
 146 
 
 146 
 
 146 
 
 52 
 
 83 
 
 213 
 
 103 
 
 9 
 
 113 
 
 61 
 
 209 
 
 401 
 
 58 
 
 95 
 
 117, 195, 3.59 
 
 Du Honrmelin v. Sheldon, . 42, 138 
 Duke V. Barnett, ... 87 
 
 Duke of Ancaster v. Mayer, 261, 263 
 Dk. Brunswick v. Dk. Cambridge, 
 
 11, 345 
 Duke of Devon v. Eglin, . . 320 
 Dummer v. Corporation of Chip- 
 penham, .... 4 
 Dummer v. Pitcher, ... 95 
 Duncan v. Campbell, ... 49 
 V. McCalmont, . .197 
 
 Duncuft V. Albrecht, ... 83 
 Dundas v. Dutens, . . . 148 
 Dunnage v. White, . . .189 
 Dursley v. Fitzhardinge, . . 24 
 Dutton V. Morrison, . . . 242 
 Duvergier v. Fellowes, . . 242 
 Dyer v. Dyer, . ... 35 
 Dykes v. Blake, . . .178 
 
 Dyson v. Morris, . . . 410 
 
 Eades v. Harris, 
 Earle v. Pickin, . 
 Earnshaw v. Thornhill, 
 East v. East, 
 E. L Company v. Bazett, 
 V. Boddam, 
 V. Campbell. 
 V. Donald, 
 V. Keigbly, 
 V. Vincent, 
 Ede V. Knowles, 
 Eden v. Bute, Lord, 
 Eddleston v. Collins, 
 
 V. Vick, 
 Edsell V. Buchanan, 
 Edwards v. Abrey, 
 V. Brown, 
 V. Burt, 
 V. Edwards, 
 V. Grand Junction 
 
 way, 
 V. Jones, 
 V. McLeay, 
 V. Martin, 
 V. Meyrick, 
 Egerton v. Brownlow. 
 
 V. Jones, 
 Eland v. Eland, . 
 Elgie v. Webster, 
 Elias, Matter of, 
 Elibank v. Montolieu, 
 Ellard v. Cooper, 
 Elliot v. Cordell, 
 v. Turner, 
 Elliott V. Merryman, 
 Ellis V. Lewis, . 
 Ellison V. Elwin, 
 Emerson v. Harland, 
 Empringham v. Short, 
 England v. Downs, 
 
 21, 
 
 408 
 305 
 358 
 
 21 
 377 
 168 
 3 
 188 
 388 
 150 
 147 
 399 
 402, 403 
 217 
 335 
 297 
 187 
 186 
 303 
 Rail. 
 
 79, 92 
 80, 356 
 178 
 121 
 184 
 
 42 
 387 
 156 
 240 
 294 
 
 48 
 275 
 
 49 
 109 
 156 
 
 94 
 142 
 338 
 199, 385 
 182, 383 
 
TABLE OP ENGLISH CASES. 
 
 xxm 
 
 England Mary, Re, 
 
 , 
 
 288 
 
 Fordham v. Wallis, . 
 
 269 
 
 275 
 
 Errington v. Aynesley, 
 
 , 
 
 83 
 
 Fortescue v. Barnett, . 
 
 
 80 
 
 Esdaile v. Stephenson, 
 
 , , 
 
 89 
 
 Forth v. Norfolk, Duke of, . 
 
 
 129 
 
 Etty V. Bridges, . 
 
 , , 
 
 161 
 
 Foss V. Harbottle, 
 
 . 
 
 335 
 
 Evans v. Bicknell, 
 
 . 151, 
 
 174 
 
 Foster v. Alanson, 
 
 
 240 
 
 V. Brown, 
 
 , , 
 
 264 
 
 v. Cockrell, 
 
 53 
 
 161 
 
 V. Cogan, 
 
 
 263 
 
 V. Handley, 
 
 , 
 
 254 
 
 V. Stokes, 
 
 . 
 
 321 
 
 Fourdrin v. Gowdey, . 
 
 . 
 
 138 
 
 Evelyn v. Evelyn, 
 
 
 265 
 
 Fowler v. Garlike, 
 
 
 33 
 
 V. Lewis, 
 
 , 
 
 199 
 
 Frampton v. Frampton, 
 
 
 45 
 
 Exton V. Scott, . 
 
 . 
 
 80 
 
 Freeman v. Baker, 
 
 
 178 
 
 Eyre v. Countess of Shaftesbury, 
 
 281 
 
 V. Fairlie, 
 
 57 
 
 351 
 
 V. Everitt, 
 
 . 
 
 107 
 
 V. Tatham, . 
 
 
 21 
 
 V. Marsden, 
 
 , , 
 
 138 
 
 V. Lomas, 
 
 , 
 
 223 
 
 Eyton v. Mostyn, 
 
 . 196 
 
 356 
 
 Frelland v. Stansfield, . 
 Frere v. Green, . 
 
 
 243 
 24 
 
 Fallowes v. Williamson, 
 
 
 414 
 
 V. Moore, . 
 
 
 162 
 
 Fairthorne v. Weston, 
 
 , 
 
 241 
 
 Frewin v. Lewis, . 
 
 
 212 
 
 Farina v. Silverlock, . 
 
 , 
 
 378 
 
 Frowd V. Lawrence, . 
 
 
 199 
 
 Farquharson v. Seton, 
 
 . 313 
 
 403 
 
 Fuller V. Bennett, . 
 
 , 
 
 157 
 
 Farr v. Pearce, . 
 
 
 246 
 
 V. Knight, . 
 
 
 62 
 
 Farwell v. Coker, 
 
 , . 
 
 189 
 
 Fulton V. Gilmore, 
 
 
 347 
 
 Faulder v. Stuart, 
 
 , 
 
 11 
 
 Fyler v. Fyler, 
 
 
 62 
 
 Faulkner v. Daniel, 
 
 . 112 
 
 270 
 
 
 
 
 Featherstonehaugh v. Fenwiok, 
 
 
 Gaffee's Trust, . 
 
 
 44 
 
 
 60, 241 
 
 ,245 
 
 Garcias v. Ricardo, 
 
 
 401 
 
 Fell V. Brown, . 
 
 . . 
 
 323 
 
 Garden v. Ingram, 
 
 
 118 
 
 Fellowes v. Gwydyr, Lord, 
 
 177 
 
 Gardner v. Blane, 
 
 
 284 
 
 Fenoott v. Clarke, 
 
 . 
 
 350 
 
 V. Lachlan, 
 
 . 54 
 
 161 
 
 Fenns v. Craig, . 
 
 . 179 
 
 321 
 
 V. Marshall, . 
 
 , 
 
 49 
 
 Fenn v. Edmonds, 
 
 , 
 
 206 
 
 V. McCutcheon, 
 
 
 357 
 
 Fenner v. Taylor, 
 
 
 49 
 
 V. Rowe, 
 
 
 28 
 
 Fenton v. Brown, . 
 
 
 392 
 
 
 
 360 
 
 Fenwick v. Reed, 
 
 
 126 
 
 Garmstone v. Gaunt, . 
 
 
 285 
 
 Fereday v. Wightwick, 
 
 
 247 
 
 Garrard v. Lauderdale, Lord 
 
 , , 
 
 31 
 
 Fermor, Ex parte. 
 
 . 
 
 293 
 
 Gartside v. Outram, 
 
 
 6 
 
 Few V. Guppy, 
 
 
 357 
 
 Gaskell v. Gaskell, 
 
 230 
 
 316 
 
 Field, Ex parte, . 
 
 , 
 
 272 
 
 Gayler v. Fitzjohn, 
 
 
 385 
 
 Fight v. Bolland, . 
 
 , 
 
 82 
 
 Gee V. Pritchard, . 
 
 213 
 
 216 
 
 Fildes V. Hooker, . 
 
 
 91 
 
 George v. Millbank, 
 
 
 146 
 
 Finch V. Finch, . 
 
 
 100 
 
 Gervis v. Gervis, . 
 
 . 
 
 265 
 
 V. Shaw, . 
 
 '. 151 
 
 162 
 
 Gibbs v. Glamis, . 
 
 
 31 
 
 Fisher v. Fisher, . 
 
 
 365 
 
 Gibson v. Bell, . 
 
 
 223 
 
 Fisk V. Norton, . 
 
 , 
 
 379 
 
 V. D'Este, 
 
 
 178 
 
 Fitch V. Weber, . 
 
 
 138 
 
 Giifard v. Hort, . 
 
 399 
 
 412 
 
 Fitzgerald, Re, . 
 
 .' 291 
 
 298 
 
 Gilbee v. Gilbee, . 
 
 
 291 
 
 Fitzpatriok v. Nowlan, 
 
 
 82 
 
 Gillespie v. Alexander, 
 
 , 
 
 262 
 
 Flack V. Holm, . 
 
 , 
 
 360 
 
 Gillett V. Peppercorne, . 
 
 
 184 
 
 Flamank, Ex parte. 
 
 , 
 
 136 
 
 Gilpin V. Southampton, 
 
 
 259 
 
 Flavell V. Harrison, 
 
 . 
 
 217 
 
 Gingell v. Home, . 
 
 , 
 
 249 
 
 Fleming v. Buchanan, . 
 
 99, 263 
 
 276 
 
 Glasscott V. Lang, 
 
 . 176 
 
 ,198 
 
 Fletcher v. Ashburner, . 
 
 . 136 
 
 137 
 
 Glasoott V. Copperminers' C 
 
 o. 
 
 
 V. Fletcher, 
 
 
 80 
 
 
 9,20 
 
 314 
 
 Flight V. Bolland, 
 
 , , 
 
 82 
 
 Glassington v. Thwaites, 
 
 241 
 
 333 
 
 Flint V. Brandon, . 
 
 
 83 
 
 Glendinning, Ex parte, 
 
 
 107 
 
 V. Warren, . 
 
 
 32 
 
 Glengall v, Fraser, 
 
 
 12 
 
 Flower V. Hartopp, 
 
 
 386 
 
 Gloucester, Corp. of, v. Wooc 
 
 1, ■ 
 
 401 
 
 Foley V. Hill, . 20, 
 
 226, 338, 
 
 339 
 
 Glyn V. Duesbury, 
 
 
 204 
 
 Folland V. Lamotte, 
 
 
 406 
 
 Glynn v. England, Bank of. 
 
 
 168 
 
 Forbes v. Peacock, 
 
 . 
 
 156 
 
 Goddard, Re, 
 
 
 117 
 
 Ford V. Dolphin, . 
 
 . 
 
 15 
 
 V. Snow, 
 
 
 182 
 
XXIV 
 
 TABLE OF ENGLISH CASES. 
 
 Goldsmid v. Godsraid, . 
 
 . 105 
 
 Gooch's case, 
 
 . 146 
 
 Goodall V. Little, . 
 
 . 6, 7, 17 
 
 Goode V. Burton, . 
 
 . 126 
 
 Goodson V. Ellison, 
 
 . 59, 318 
 
 Goodman v. Sayers, 
 
 . 193 
 
 V. Whitcomb, 
 
 241, 243, 354 
 
 Gordon v. Atkinson, 
 
 . 33, 138 
 
 V. Gordon, 
 
 . 179, 189 
 
 V. Graham, 
 
 . 110, 164 
 
 Re, . 
 
 . 292 
 
 V. Simpkinson, 
 
 . 236 
 
 Gore V. Bowser, . 
 
 6 
 
 V. Gibson, . 
 
 . 183 
 
 Gosling V. Carter, 
 
 . 255 
 
 Goss V. Nugent, Lord, 
 
 84, 87 
 
 Goulson V. White, 
 
 . 210 
 
 Graham v. Coape, 
 
 . 333 
 
 V. Oliver, 
 
 . 91 
 
 Grant v. Grant, . 
 
 . 361 
 
 Re, . 
 
 . 384, 387 
 
 V. Lynam, . 
 
 . 30 
 
 Gray v. Downman, 
 
 . 173 
 
 V. Haig, 
 
 . 403 
 
 Great North of England 
 
 Junction 
 
 Railway v. Clarenc 
 
 e Rail- 
 
 way, . 
 
 . 218 
 
 Great Northern R. R. v. A 
 
 [anohes- 
 
 ter R. R., . 
 
 . 207 
 
 Greedy v. Lavender, . 
 
 . 49 
 
 Green v. Bridges, 
 
 . 106 
 
 V. Green, . 
 
 79, 92 
 
 V. Holdcn, . 
 
 . 117 
 
 V. Pledger, 
 
 . 20 
 
 V. Weaver, 
 
 5 
 
 Greenlaw v. King, 
 
 7 
 
 Greenough v. Gaskell, . 
 
 6 
 
 Greenway, Ex parte, . 
 
 . 168 
 
 Greenwood v. Atkinson, 
 
 . 347 
 
 V. Evans, . 
 
 . 55 
 
 v. Taylor, . 
 
 . 121,272 
 
 V. Wakeford, 
 
 39, 62 
 
 Gregory v. Gregory, 
 
 . 58 
 
 V. West, . 
 
 . 386 
 
 Gretton v. Haward, 79, £ 
 
 2, 96, 97, 285 
 
 Grey v. Grey, 
 
 . 102 
 
 Griffith V. Ricketts, 
 
 31,407,414 
 
 Grimstone, Ex parte, . 
 
 . 291 
 
 V. Gaunt, 
 
 . 285 
 
 Grinnell v. Cobbold, 
 
 . 23 
 
 Grugeon v. Gerrard, 
 
 . 165 
 
 Gwydir, Lord, Ex parte. 
 
 . 293 
 
 Habershon v. Blurton, . 
 
 . 242 
 
 Hale V. Hale, 
 
 . 243, 354 
 
 Halford v. Gillow, 
 
 . 198 
 
 Hall, Ex parte, . 
 
 . 292, 293 
 
 Hall & Hinds, re, . 
 
 . 192 
 
 V. Hall, 
 
 . 243 
 
 V. Hardy, . 
 
 . 192 
 
 V. Hill, 102, 103, 104, 105, 106 
 
 Hall V. Jenkinson, 
 
 v. Laver, 
 Hallett V. Bousfield, 
 Halliday's Est; re, 
 Halliwell v. Tanner, 
 Halsey v. Halsey, . 
 Hambrook v. Smith, 
 Hamilton v. Houghton, 
 V. Marks, 
 v. Royse, 
 V. Watson, 
 V. Wright, 
 Hammond v. Messenger, 
 Hampshire v. Bradley, 
 Hampson v. Hampson, 
 Hanby v. Robers, 
 Hansard v. Robinson, 
 Hanson v. Keating, 
 Hardman v. Ellames, 
 Harday v. Hawkshaw, 
 Hare v. Hale, 
 Hares v. Stringer, 
 Hargrave v. Hargrave, 
 Harland v. Binks, 
 
 v. Emerson, 
 Harman v. Jones, 
 Harmer v. Gooding, 
 Harmood v. Oglander, 
 Harries v. Bryant, 
 Harris v. Davison, 
 V. Harris, . 
 Harrison v. Gurney, 
 V. Heathorn, 
 V. Nettleship, 
 Hart v. Alexander, 
 Hartwell v. Chitters, 
 Harvey v. Harvey, 
 Hastings, Ex parte. 
 
 Hatch V. , . 
 
 Hawkins, Ex parte, 
 
 V. Gathercole 
 V. Hawkins, 
 V. Lawse, 
 Hayes, Ex parte, 
 Haynes v. Forshaw, 
 Hayward v. Purssey, 
 Hayteer v. Trego, 
 Head v. Egerton, 
 Healey v. Jagger, 
 Heathcote v. Hulme, 
 Heighing v. Grant, 
 Heming v. Swinnerton, 
 Henderson v. Eason, 
 Henley v. Stone, 
 Hepworth v. Heslop, 
 Hercey v. Ferres, 
 Heroy v. Birch, . 
 Hereford v. Ravenhill, 
 Herring v. Cloberry, 
 Hertfort v. De Zichi, 
 Re, 
 
 203, 
 
 48, 
 
 354 
 387 
 271 
 284 
 264 
 288 
 5 
 416 
 205-6 
 273 
 179 
 
 59 
 303 
 
 59 
 377 
 276 
 168 
 191 
 
 17 
 136 
 243 
 318 
 
 82 
 
 31 
 338 
 218,357 
 320 
 262, 378 
 
 89 
 132 
 339 
 198 
 242 
 197 
 173 
 256 
 320 
 297 
 351 
 135 
 7 
 320 
 255 
 286 
 251 
 303 
 
 73 
 160 
 370 
 
 60 
 
 64 
 
 193 
 
 232 
 
 318 
 
 261, 390 
 
 15 
 
 82 
 
 138, 140 
 
 6,399 
 
 . 316 
 
 . 358 
 
TABLE OF ENGLISH CASES. 
 
 XXV 
 
 Hewitt V. lioosemore, . . . 151 
 Hiokling V. Boyer, . . . 261 
 Higgins V. Joyce, . . . 179 
 
 Higginson v. Clowes, . . . 172 
 Hill V. Barclay, . . . .109 
 V. CroUs, . . . . 82 
 
 V. Gomme 283 
 
 V. Thompson, . . . 218 
 Hills V. Downton, . . .101 
 Hilton V. Granville, . 218, 356, 357 
 Hindson v. Weatherill, . 184, 248 
 Hindraan v. Taylor, . . 19, 339 
 Hine v. Dodd, . . . .153 
 Hinves v. Hinves, ... 57 
 Hitchcock V. Giddings, . . 188 
 Hitchens v. Congreve, . 321, 409 
 
 Hithcox V. Sedgwick, . . . 157 
 Hobhouse v. Courtenay, . . 324 
 Hobson V. Blackburn, . . . 277 
 
 V. Ferraby, . . .289 
 Hockley v. Bantock, . . . 125 
 Hodgens v. Hodgens, . . 49, 288 
 Hodle V. Healey, . . .119 
 
 Hodgson V. Shaw, . . . 269 
 Hodson V. Ball, . . 415, 416, 417 
 Hoggart V. Cutts, . . . 204 
 
 Holder V. Chambury, . . .238 
 
 Holdioh V. Holdich, ... 94 
 Holdin V. Durbin, ... 39 
 Holford V. Phipps, ... 59 
 Holland v. Baker, . . .415 
 HoUoway v. HoUoway, . . 217 
 V. Millard, . . .147 
 Holmes v. Baddeley, ... 7 
 V. Coghill, . . ,100 
 Re, .... 292 
 
 Holt V. Dewell 161 
 
 Holyladd, Ex parte, . . .292 
 Hood V. Pimm, . . . .372 
 Hooper v. Brodrick, . . .218 
 Ex parte, . . 123, 124 
 
 Hope V. Hope, .... 24 
 Horlock V. Smith, . . .119 
 Hornoastle v. Charlesworth, 
 
 230, 231, 232 
 
 Horner's Est., Re, . . .136 
 
 Hoste V. Pratt, .... 287 
 
 Houghton, Ex parte, . . .33 
 
 V. Houghton, . . 245 
 
 Houlditch V. Collins, . . .134 
 
 V. Donegal, . . .410 
 
 Housefield, Ex parte, . . .123 
 
 Hovenden v. Annesley, 63, 176, 228 
 
 How V. Broomsgroove, . . 200 
 
 V. Vigues,. . . .120 
 
 Howard v. Digby, ... 46 
 
 V. Harris, . . .112 
 
 Howden v. Rogers, . . , 360 
 
 Howe V. Dartmouth, Lord, . . 57 
 
 Howell V. George, ... 21 
 
 Hudson V. Maddison, . . .211 
 
 Hughes V. Eades, 
 
 V. Garner, 
 
 V. Stubbs, 
 Huguenin v. Basely, . 
 Hungate v. Gascoyne, . 
 Hunt V. Penrice, 
 Hunter v. Atkins, 
 
 V. Daniel, 
 Hurst V. Beach, . 
 Hutchinson v. Sheperton, 
 Hyde v. Whitefield, . 
 
 . 372 
 . 397 
 31, SO 
 176, 185,354 
 . 417 
 . 338 
 . 185 
 . 54 
 . 103, 104 
 . 192 
 . 360 
 
 Ibbetson v. Ibbetson, . . . 265 
 Incorporated Society v. Richards, 
 
 69, 75 
 Inge, Ex parte, .... 75 
 Inman v. Whitley, ... 14 
 Innes v. Jackson, . . .174 
 
 V. Sayer, .... 97 
 Ireson v. Denn, .... 165 
 Irnham v. Child, . . .170 
 
 Irviu V. Young, .... 227 
 
 Jack V. Burnett, . 
 Jackman v. Mitchell, . 
 Jackson v. Leaf, . 
 
 V. Petrie, 
 
 V. Stopherd, . 
 Jacob V. Lucas, . 
 Jacobs V. Richards, 
 Jacques v. Chambers, . 
 James v. Dean, . 
 Ex parte, . 
 Janson v. Solarte, 
 J. C, Ex parte, . 
 Jefferys v. Jefferys, 
 
 V. Smith, . 247, 
 Jefferyes v. Purday, . 
 Jeffs V. Wood, 
 Jenkins v. Bryant, 
 
 V. Cross, 
 
 V. Hilles, 
 
 V. Parkinson, . 
 
 Jennings v. Broughton, 
 
 V. Patterson, . 
 
 Jervis v. White, . 
 
 Jervoise v. Northumberland 
 
 of, . . 
 
 V. Silk, . 
 Jessop V. Watson, 
 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 
 Johnston v. Beattie, . 281, 282, 291 
 
 V. Rowlands, . . 31 
 
 Jolland V. Stainbridge, . .155 
 Jones V. Alephsin, . . .361 
 
 . 71 
 
 . 180 
 
 198, 260 
 
 . 360 
 
 . 240 
 
 . 302 
 
 . 183 
 
 . 265 
 
 . 60 
 
 . 59 
 
 9 
 
 . 289 
 
 . 78 
 
 354, 356 
 
 . 215 
 
 . 105 
 
 . 385 
 
 . 412 
 
 84 
 
 81, 360 
 
 . 176 
 
 . 258 
 
 179, 351 
 
 Duke 
 
 42, 84 
 287 
 140 
 
XXVI 
 
 TABLE OF ENGLISH CASES. 
 
 Jones V. Beach, . 
 
 V. Gilhatn, 
 
 V. Goodrich, 
 
 V. Howells, 
 
 V. Jones, . 53, 
 
 T. Kearney, 
 
 V. Lane, . 
 
 V. Morgan, 
 
 V. Mossop, 
 
 V. Noy, 
 
 V. Pugh, . 
 
 V. Smith, . 
 
 V. Tanner, 
 John V. Morshead, 
 Joy V. Campbell, 
 Joyce V. De Moleyns, 
 
 Kater v. Roget, , 
 Kay V. Marshall, 
 Keeble, Ex parte, 
 Keeley v. Hooper, 
 Kekewiok v. Manning, 
 Kelly V. Hooper, 
 V. Jackson, 
 Kemble v. Farren, 
 
 V. Kean, 
 Kemp V. Pryor, . 
 Kendall, Ex parte, 
 
 V. Granger, 
 Kennedy V. Green, 
 
 V. Lee, 
 
 Kennington v. Hought< 
 
 Kent V. Burgess, . 
 
 V. Jackson, . 
 
 Keppell V. Bailey, 
 
 Kerr v. Dungannon, Lord, 
 
 V. Rew, 
 
 V. Wauchope, 
 
 Kerrich v. Bransby, 
 
 Keys V. Williams, 
 
 Kidd V. Cheyne, 
 
 Kidney v. Coussmaker, 
 
 Kilminster v, Pratt, 
 
 Kimberly v. Jennings, 
 
 Kincaid's Trust, . 
 
 King V. Mullin, . 
 
 V. Daccombe, 
 
 V. Denison, 
 
 V. Hamlet, . 
 
 V. Smith, . 
 
 V. Wilson, . 
 
 King of Sicilies v. Wilcox, 
 
 Kirby v. Barton, . 
 
 V. Marsh, . 
 
 Kirk V. Eddowes, 
 
 Kirkby Ravensworth 
 
 parte, 
 Kirwan v. Daniel, 
 Knatohbull v. Fearnhead, 
 
 V. Grueber, 
 Knight V. Boughton, . 
 
 172, 173 
 . 206 
 . 354 
 . 415 
 161, 162, 270 
 . 176 
 . 174 
 . 105 
 . 223 
 . 243 
 6 
 
 159, 165 
 . 250 
 
 230, 231 
 . 58 
 . 162 
 
 Hospital 
 
 Knight V. Davis, . 
 V. Knight, 
 V. Majoribanks, 
 V. Waterford, . 
 
 KnoUys v. Shepherd, . 
 
 Knott V. Cottee, . 
 Ex parte, 
 
 Knox V. Symonds, 
 
 53, 
 
 93,94 
 218, 340 
 287 
 393 
 55,80 
 392 
 6 
 108 
 82, 207 
 179 
 272 
 67 
 16, 157 
 85 
 222 
 288 
 320 
 152 
 159 
 20, 314 
 97 
 250 
 125 
 419 
 95, 147 
 409 
 207 
 48 
 59 
 50 
 33 
 191 
 114 
 88 
 2,3 
 260 
 61 
 103, 104 
 , Ex 
 
 75 
 
 73 
 
 257 
 
 87, 90 
 
 29,31 
 
 i, 187 
 
 265 
 319 
 61 
 236 
 141 
 31 
 
 161, 162, 164 
 . 193 
 
 Lady Thynn v. Earl Glengall, 104, 105 
 
 Lacey, Ex parte, ... 59, 61 
 
 Lake V. Skinner, . . . 373 
 
 Lambert v. Hutchinson, . . 302 
 
 Lancashire v. Lancashire, . . 375 
 
 Lancaster v. Evors, . . 10, 17 
 
 Re, ... . 301 
 
 Lanchester v. Thompson, . . 321 
 
 Lane v. Dighton, . . 64, 144 
 
 V. Newdigate, . . .218 
 
 V. Paul, . . . .350 
 
 Re, 286 
 
 Langley v. Fisher, 153, 370, 406, 407 
 
 112 
 
 56 
 
 56 
 
 55, 149, 203 
 
 . 376 
 
 261, 390 
 
 15,17 
 
 . 363 
 
 . 31 
 
 . 216 
 
 . 189 
 
 243, 292 
 
 . 320 
 
 . 372 
 
 407, 409, 416 
 
 212 
 
 103 
 
 260 
 
 4,5 
 
 384 
 
 209 
 
 238 
 
 388 
 
 112 
 
 318 
 
 144 
 
 Langstaffe v. Fenwiok, 
 Langston v. Ollivant, 
 V. Walker, 
 Langton v, Horton, 
 Lansdowne v. Lansdowne, 
 Larkins \. Paxton, 
 Latimer v. Neale, 
 Law V. Hunter, . 
 Lawless v. Shaw, 
 Lawrence v. Smith, 
 Lawton v. Campion, 
 Leaf V. Coles, 
 Leathart v. Thome, 
 Lechmere v. Brasier, 
 Lee V. Lee, 
 
 V. Milner, . 
 
 V. Pain, 
 
 V. Park, 
 
 V. Reed, 
 
 V. Willook, . 
 Leeds v. Amherst, 
 
 Duke of, V. New Radnor, . 
 Le Grand v. Whitehead, 
 Leith V. Irvine, . 
 Lenaghan v. Smith, . 
 Lench V. Lench, . 
 Le Neve v. Le Neve, 
 
 151, 153, 157, 158 
 
 Leo v. Lambert, . 
 
 Leonart v. Baker, 
 
 V. Leonard, 
 
 Lewellyn v. Cobbold, 
 
 Lewis v. Davies, 
 
 V. Fullarton, 
 V. Hillman, 
 v. Langdon, 
 v. Maddocks, 
 V. ZoHche, 
 
 Lichfield v. Bond, 
 
 361 
 151 
 189 
 180 
 
 12 
 215 
 
 61 
 
 246 
 
 144 
 
 315 
 
 3 
 
TABLE OF ENGLISH CASES. 
 
 XXVll 
 
 Liddell V. Norton, 
 
 
 , 
 
 12 
 
 Lightfoot V. Heron, 
 
 , 
 
 183 
 
 Lingard v. Bromley, . 
 
 
 268 
 
 Lingen v. Sowray, 
 
 , 
 
 137 
 
 Lister V. Turner, 
 
 . 
 
 125 
 
 Litchfield V. Ready, 
 
 , 
 
 114 
 
 Liversey v. liiversey, . 
 
 
 387 
 
 Llewellyn v. Badely, . 
 
 
 9, 15 
 
 Lloyd V. Jenkins, 
 
 , 
 
 357 
 
 V. Johnes, . . 3 
 
 16,411 
 
 ,412 
 
 V. Mason, . 
 
 
 49 
 
 V. Passingham, . 
 
 , 
 
 355 
 
 V. Spillets, 
 
 , 
 
 35 
 
 V. Wait, . 
 
 , 
 
 376 
 
 V. Williams, 
 
 . 
 
 49 
 
 Locke V. Colinan, 
 
 , 
 
 377 
 
 Lockhart v. Hardy, . 1 
 
 17, 120 
 
 ,264 
 
 Lockwood V. Fenton, . 
 
 , 
 
 282 
 
 Lodge V. Lyseley, 
 
 . 
 
 149 
 
 London, City of, v. Mitford, 
 
 
 89 
 
 Y. Perkins, 
 
 . 200 
 
 ,201 
 
 Long V. Long, 
 
 . 288 
 
 ,289 
 
 V. Storie, . 
 
 , , 
 
 320 
 
 V. Yonge, . 
 
 
 321 
 
 Longman v. Winchester, 
 
 . 
 
 215 
 
 Lord Aldborough v. Tyre, 
 
 , 
 
 186 
 
 Lord V. Wightwick, . 
 
 , 
 
 46 
 
 Lorimer v. Lorimer, 
 
 
 , , 
 
 232 
 
 Loscombe v. Russell, 
 
 
 , 
 
 241 
 
 Loveday, Ex parte. 
 
 
 , 
 
 293 
 
 Lorell V. Hicks, . 
 
 
 , 
 
 399 
 
 Lovegrove v. Cooper, 
 
 
 253 
 
 ,256 
 
 Low V. Carter, . 
 
 
 , 
 
 257 
 
 Lowe V. Williams, 
 
 
 
 12 
 
 Lowes V. Lowes, 
 
 
 , 
 
 94 
 
 Lowndes v. Cornfbrd, 
 
 
 . 
 
 201 
 
 V. Davies, 
 
 
 . 
 
 9 
 
 Ludlow, Corporation o 
 
 f,v. ( 
 
 Jreen- 
 
 
 house. 
 
 
 63, 76 
 
 Luif kin v. Nunn, 
 
 
 153 
 
 ,312 
 
 Lumley v. Wagner, 
 
 
 
 207 
 
 Lumsden v. Fraser, 
 
 
 
 423 
 
 Lund V. Blanshard, 
 
 
 
 211 
 
 Lupton V. White, 
 
 
 
 222 
 
 Lushington v. Boldero, 
 
 
 
 316 
 
 Lyon V. Colville, 
 
 
 
 255 
 
 Lyons v. Blenkin, 
 
 
 280 
 
 283 
 
 Lyre v. Connell, . 
 
 
 
 206 
 
 Maber v. Hobbs, 
 
 
 373 
 
 Macartney v. Graham, 
 
 
 168 
 
 Macbride v. Lindsay, . 
 
 , 
 
 320 
 
 Macclesfield, Earl of, v. 'Da.^ 
 
 ris, . 
 
 92 
 
 Maccubbin v. Cromwell, 
 
 
 58 
 
 Maokensie v. Johnston, 
 
 . 
 
 221 
 
 V. Robinson, 
 
 118, 
 
 120 
 
 Mackinnon v. Stewart, 
 
 . 
 
 31 
 
 Mackreth v. Symmons, 
 
 128, 
 
 129 
 
 Macloud v. Annesley, 
 
 , 
 
 318 
 
 Macnamara v. Maquire 
 
 i 
 
 198, 
 
 359 
 
 Magdalen Coll. v. Att.-Gen. . 69 
 
 Maitland v. Bateman, . . .56 
 Malcolm v. Scott, . . 54, 413 
 
 Maiden v. Fyson, . . 80, 392 
 Malins v. Freeman, ... 85 
 Man V. Ricketts, . . 250, 410 
 
 Mandeno v. Mandeno, . . 394 
 
 Manser v. Jenner, . . 356, 357 
 Manton v. Moore, . . .151 
 Mare v. Malachy, . . . 317 
 Margrave v. Le Hooke, . . 165 
 Marlborough v. Wheat, . . 385 
 
 Marrow, Re 115 
 
 Marsh v. Lee, . . .110, 162 
 
 Marshall v. Colman, . . 241, 243 
 
 V. HoUoway, . . 287 
 
 Martin v. Pycroft, ... 87 
 
 Martindale v. Booth, . . .151 
 
 Martinez v. Cooper, . . . 151 
 
 Mason v. Bogg, . 121, 261, 277 
 
 Massey v. Banner, . . 58, 221 
 
 V. Massy, . . . 264 
 
 V. Parker, . . 44, 45 
 
 Masterman v. Lewin, . . . 206 
 
 Matson v. Swift, . . . .139 
 
 Matthews t. Brise, ... 58 
 
 V. Dana, . . . 380 
 
 Maundrell v. Maundrell, . . 160 
 
 Maxwell v. Maxwell, ... 93 
 
 V. Mountacute, . .111 
 
 Mayhew v. Crickett, . . . 106 
 
 Mayoj, &c., of Basingstoke v. Ld. 
 
 Bolton, .... 237, 238 
 McCalmont v. Rankin, . 176, 303 
 McDermot v. Kealy, . . .397 
 McDongal, Ex parte, . . . 298 
 McFadden v. Jenkyns, . 28, 54, 80 
 Mcintosh V. Great Western Rail- 
 way, 24 
 
 MoMahon v. Burchell, 
 
 21, 223, 232, 305, 382 
 Medley v. Horton, ... 45 
 Meek v. Kettlewell, . . 55, 80 
 
 Melland v. Gray, ... 60 
 
 Mell^sh V. Bridger, . . . 742 
 Mergrave v. Le Hook, . .165 
 
 Merryweather v. Nixon, . . 268 
 Metcalfe v. Pulvertoft, . . 146 
 
 Meiix V. Bell, . . 161, 205, 384 
 V. Mahby, . . . .321 
 Mexborough, Earl of, v. Bower, . 218 
 Meyer v. Montrio, . . .351 
 Micklethwaite v. Atkinson, . . 8 
 Middleton v. Dodswell, . . 353 
 V. Middleton, . 263, 274 
 Mill V. Hill, . . . .191 
 Milland v. Gray, ... 60 
 
 Millar v. Taylor, . . .213 
 
 V. Craig, .... 227 
 Miller v. Gow, . . . .382 
 V. Warmington, . , 237 
 
XXVIU 
 
 TABLE OF ENGLISH CASES. 
 
 60. 
 
 Miles V. Durnford, . . .251 
 Miligan V. Mitchell, . . .18 
 Millington V. Fox, . 217, 392, 393 
 Mills V. Fanner, . . . .71 
 V. Mills, .... 57 
 Milner v. Harewood, . . 289, 413 
 Milnes V. Davison, . . .21 
 Mirehouse v. Seaife, . . . 275 
 Mitchell V. Hayne, . . .205 
 Mitford V. Reynolds, ... 67 
 Moggridge v. Thackwell, . 71, 73 
 
 Mole V. Mansfield, . . .231 
 Molton V. Camroux, . . .183 
 Mondey v. Mondey, . . 121, 285 
 Money v. Jordan, . . 196, 356 
 
 Monro v. Taylor, 
 Monteith v. Taylor, . 
 Montfort, Lord, v. Cadogan, Lord, 
 Moodie v. Bannister, 
 Moons V. De Bernales, 
 Moore V. Crofton, 
 
 V. Frowd, 
 
 V. Prior, . 
 
 V. Usher, . 
 Moores v. Choat, 
 Morgan v. Annis, 
 V. Goode, 
 V. Shaw, 
 Morley v. Bridges, 
 Morrett v. Paske, . .163, 
 Morice v. Durham, Bishop of, 
 
 V. Langham, 
 
 V. Swabey, 
 Morrison v. Moat, 
 Morrell v. Wooten, 
 Morris v. McNeil, 
 
 V. Morgan, 
 
 V. Morris, 
 Morrison v. Arnold, 
 Mortimer v. Fraser, 
 
 V. Shortall, 
 Mortlook V. Buller, 
 Moss V. Baldook, 
 
 Mossop V. Eadon, . . . 168 
 Mostyn v. Spencer, . . 36^, 370 
 Motley V. Downman, . . ; 217 
 Mozley V. Alston, . . . 321 
 Muckleston v. Brown, ... 33 
 Muddle V. Fry, .... 376 
 Mullock V. Jenkins, . . . 320 
 Munch V. Cockerell, . . 317, 318 
 Mundy V. Joliffe, ... 87 
 
 V. Mundy, . . . 234 
 
 Munoz V. De Tastet, . . . 322 
 Murless v. Franklin, . . . 102 
 Murray v. Barlee, 
 
 V. Elibank, . . 48, 49 
 
 V. Shad well, . . . 364 
 
 V. Vipart, . . . 324 
 V. Walter, ... 15 
 Mutter V. Chan well, . . .413 
 
 409 
 
 55 
 
 314 
 
 376 
 
 77 
 
 61 
 
 260 
 
 205 
 
 5, 142 
 
 248 
 
 356 
 
 352 
 
 111 
 
 165 
 
 67 
 
 376 
 
 14 
 
 216 
 
 15 
 
 360 
 
 334 
 
 25 
 
 25 
 
 335 
 
 171 
 
 55, 81 
 
 Lincoln 
 
 Nairn v. Prowse, 
 
 Nash V. Morley, . 
 
 Navulshaw v. Brownrigg, 
 
 Naylor v. Winch, 
 
 Neale v. Neale, . 
 
 Neate v. Marlborough, Duko of, 
 
 130, 262 
 
 Nedby v. Nedby, . . .351 
 
 Nelson v. Bridges, 
 
 V. Bridport, ■ . 
 V. Duncombe, . 
 
 Nelthorpe v. Holgate, . 84, 
 
 Nesbit V. Meyer, 
 Re, . 
 
 Newburgh v. Newburgh, 
 
 Newby v. Reed, 
 
 Newcastle, Duke of, v 
 Countess of, 
 
 Newcomb v. Bonham, 
 
 Newlands V. Paynter, . 
 
 Newton v. Hunt, 
 
 Nichols V. Chalie, 
 V. Roe, . 
 
 NichoUs V. Maynard, . 
 
 Nicholson v. Hooper, . 
 
 V. Wordsworth, 
 
 Nightingale v. Goulburn, 
 
 Nokes V. Seppings, 
 
 Norcutt V. Dodd, 
 
 Norris v. Wilkinson, . 
 
 Northam Bridge Company v 
 Southampton Railway Com 
 pany, . . . . ' 376, 377 
 
 Norway v. Rowe, 
 
 Nunn V. Harvey, 
 
 Nurse V. Lord Seymour, 
 
 . 129 
 . 67 
 . 222 
 189, 190 
 189 
 
 81,413 
 . 383 
 290, 291 
 91, 177, 315 
 82 
 292 
 172 
 269 
 
 42 
 
 112 
 
 149 
 
 187 
 
 193 
 
 193 
 
 109 
 
 150 
 
 38 
 
 67 
 
 350 
 
 , 148 
 
 125 
 
 147 
 
 O'Connor v. Spaight, 
 Oglander v. Oglander, 
 Okill V. Whittaker, 
 Oldham v. Eboral, 
 Oliver v. Richardson, 
 Omerod v. Hardman, 
 Omrod v. Huth, 
 Onslow V. Wallis, 
 Ord V. Noel, 
 
 V. White, 
 Osborne v. Harvey, 
 Ostell v. Le Page, 
 Ottley v. Pensam, 
 Overton v. Bannister, 
 Owen V. Howman, 
 Owens V. Dickinson, . 
 Oxenden v. Compton, Lord, 
 
 143 
 Oxford V. Rodney, 
 
 Padbury v. Clark, 
 Padwick v. Hurst, 
 
 V. Stanley, 
 Page V. Cox, 
 
 11 
 
 286 
 85 
 
 224 
 
 39 
 
 170, 172 
 
 415 
 
 . 235 
 
 . 84 
 
 178 
 
 32,50 
 
 , 55 
 
 . 356 
 
 . 87 
 
 . 260 
 
 3S5, 386 
 
 . 176 
 
 . 352 
 
 46, 258 
 
 ,291,297 
 . 265 
 
 . 96 
 
 222, 226 
 
 . 222 
 
 . 246 
 
TABLE OF ENGLISH CASES. 
 
 XXIX 
 
 Page, Re, . 
 
 
 301 
 
 Pidcock V. Bishop, 
 
 
 179 
 
 Pain V. Smith, 
 
 
 125 
 
 Pierson Y'. Shore, . '. 
 
 
 143 
 
 Paliii V. Gathercole, 
 
 
 213 
 
 Piggin V. Cheetham, . 
 
 
 113 
 
 Palmer v. Neave, 
 
 
 ISO 
 
 Pilling V. Armitage, . 
 
 
 150 
 
 Parker v. Fairlie, 
 
 
 12 
 
 Pinkett v. Wright, 
 
 24 
 
 2,244 
 
 V. Housefield, . 
 
 123, 
 
 125 
 
 Pinkus V. Peters, 
 
 388, 418 
 
 Parke's Charity, In re, . 
 
 
 76 
 
 Pitt V. Cholmondeley, . 
 
 
 227 
 
 Parkhurst v. Lowton, . 
 
 4, 
 
 370 
 
 Playfair v. Thames Junctioi 
 
 Rail 
 
 
 Parkin v. Thorold, 
 
 
 88 
 
 way Company, 
 
 . 196, 359 
 
 Parr v. Attorney-General, 
 
 
 310 
 
 Plowden v. Hyde, 
 
 . 173, 174 
 
 Parrott v. Sweetland, . 
 
 
 128 
 
 Plummer v. Wildman, 
 
 
 271 
 
 Partridge v. Usborne, . 
 
 417, 
 
 418 
 
 Plunket V. Lewis, 
 
 
 105 
 
 Pastey v. Freeman, 
 
 
 178 
 
 V. Penson, 
 
 
 256 
 
 Paterson v. Scott, . 275, 
 
 276, 
 
 263 
 
 PoUey V. Seymour, 
 
 
 136 
 
 Pauli V. Von Melle, . 
 
 
 205 
 
 Pooley V. Budd, . 
 
 
 83,91 
 
 Paxton V. Douglass, 
 
 
 259 
 
 Pope V. Onslow, 
 
 
 165 
 
 Peace v. Hains, . 
 
 
 106 
 
 Portarlington, Lord v. Soulb 
 
 y, 
 
 195 
 
 Peachy v. Somerset, 
 
 107 
 
 108 
 
 Postlethwaite v. Blythe, 
 
 
 115 
 
 Peacock v. Burt, . 
 
 
 161 
 
 Pott V. Gallini, . 
 
 
 260 
 
 V. Evans, 
 
 
 187 
 
 Potter V. Waller, 
 
 
 15 
 
 V. Peacock, 
 
 
 241 
 
 Power V. Walker, 
 
 
 215 
 
 Peake v. Highfield, 
 
 
 174 
 
 V. Whitmore, . 
 
 
 271 
 
 Pearce v. Loman, 
 
 
 276 
 
 Pownal V. Ferrand, . 
 
 
 269 
 
 Pearne v. Lisle, . 
 
 
 360 
 
 Powys V. Blagrave, 
 
 
 208 
 
 Pearse, Ex parte. 
 
 
 124 
 
 > v. Mansfield, . 
 
 
 98 
 
 V. Green, 
 
 57 
 
 222 
 
 Praed v. Hull, . 
 
 
 113 
 
 T. Hewitt, 
 
 
 250 
 
 Prendegast v. Eyre, . 
 
 
 117 
 
 V. Pearse, 
 
 
 7 
 
 Prentice v. Phillips, . 
 
 
 350 
 
 Pearson, Re, 
 
 295 
 
 298 
 
 Preston v. Grand Collier 
 
 Docl 
 
 
 Pedley v. Goddard, . 
 
 
 193 
 
 Company, 
 
 
 321 
 
 Pegg V. Wisden, 
 
 
 88 
 
 Price V. Berrington, . 1 
 
 76, 18 
 
 3, 303 
 
 Peile V. Stoddart, 
 
 
 17 
 
 V. Carver, . 
 
 . 15 
 
 5,253 
 
 Pelham v. Hinder, 
 
 
 221 
 
 v.- Griffith, . 
 
 
 77, 88 
 
 Pemberton v. Pemberton, . 
 
 250 
 
 378 
 
 V. Price, 
 
 
 183 
 
 Penfold V. Nunn, 
 
 
 18 
 
 Pride v. Fooks, . 
 
 
 63 
 
 Pennell v. DeiTell, 
 
 
 321 
 
 Prince Albert v. Strange, 
 
 
 213 
 
 Penny v. Goode, . 
 
 
 15 
 
 Prince v. Heylin, 
 
 
 233 
 
 V. Turner, 
 
 
 30 
 
 Prilchard v. Draper, . 
 
 
 413 
 
 T. Watts, . 
 
 
 261 
 
 V. Fleetwood, 
 
 
 353 
 
 Perkin v. Stafford, 
 
 
 333 
 
 Pritt V. Clay, 
 
 
 189 
 
 Perkins v. Bradley, 
 
 
 391 
 
 Prodgers v. Langham, 
 
 
 146 
 
 Perry v. Barker, . 
 
 
 120 
 
 Prosser v. Edmonds, . 
 
 
 54 
 
 V. Phelips, . 36 
 
 417 
 
 419 
 
 Prowse v. Abingdon, . 
 
 
 276 
 
 Y. Truefit, . 
 
 
 217 
 
 Pruen v. Lunn, . 
 
 
 406 
 
 T.Walker,. 
 
 
 198 
 
 Pulsford V. Richards, . 
 
 1- 
 
 6, 177 
 
 V. Whitehead, . 
 
 
 98 
 
 Pulteney v. Darlington, 
 
 
 137 
 
 Petre v. Espinasse, 
 
 
 146 
 
 V. Warren, . 2 
 
 29, 2C 
 
 4,235 
 
 Pettit, Ex parte, . 
 
 
 126 
 
 Pulvertoft V. Pulvertoft, 
 
 . U 
 
 6, 153 
 
 Phelps V. Prothero, 
 
 
 346 
 
 Purcell V. McNamara, 
 
 
 386 
 
 Philanthropic Society v. Kemp 
 
 • 
 
 277 
 
 Puaey v. Desbouvrie, . 
 
 
 96 
 
 Phillipo T. Munnings, 
 
 
 251 
 
 Pye, Ex parte, . 
 
 80, S 
 
 8, 104 
 
 Phillipott's Charity, In re. 
 
 
 76 
 
 Pym v. Lockyer, 
 
 
 8, 104 
 
 Phillips V. Buckingham, Duke of, . 
 
 177 
 
 Pyrke v. Waddingham, 
 
 
 84 
 
 V. Clarke, 
 
 
 409 
 
 
 
 
 V. Evans, 
 
 17 
 
 192 
 
 Quarrell v. Beckford, . 
 
 
 119 
 
 Ex parte, 
 
 285 
 
 297 
 
 Queen's College, in re. 
 
 
 . 75 
 
 v. Phillips, . 
 
 222 
 
 245 
 
 
 
 
 V. Worth, 
 
 
 199 
 
 Rabbett v. Squire, 
 
 
 343 
 
 Pickering v. Ely, Bishop of, . 
 
 82, 85 
 
 Radcliffe, Ex parte, . 
 
 
 293 
 
 V. Pickering, 
 
 , 
 
 57 
 
 Raine v. Cairns, . 
 
 
 236 
 
 Pickup V. Atkinson, ; : 
 
 
 5T 
 
 Rajah, &o. v. E. I. Co. 
 
 
 8 
 
XXX 
 
 TABLE OF ENGLISH CASES. 
 
 Eamsbottom v. Freeman, . . 355 
 Randall v. Randall, . . .245 
 
 V. Russell, ... 60 
 Ranger v. Great Western Railway, 
 
 222, 224 
 Ranken v. Harwood, . : 
 
 V. Huskisson, . 
 Raphael v. Boehm, 
 
 260 
 
 . 218 
 
 . 64 
 
 . 103 
 
 . 223, 358 
 
 . 173 
 
 . 360 
 
 . 353 
 
 106, 268, 269 
 
 . 142 
 
 . 73 
 
 , 31, 306 
 
 Raven v. Waite, 
 Rawson V. Samnel, 
 Rawstone v. Parr, 
 Raynes v. Wyse, 
 Reed v. Harris, . 
 Rees V. Berrington, 
 
 V. Keith, . 
 Reeve v. Attorney-General, 
 Reeves v. Baker, . . 29 
 
 v. Glastonbury Canal 
 Company, . 
 Reg. V. Smith, . 
 Reid V. Shergold, 
 Rendall v. Rendall, . 
 Rennie v. Ritchie, 
 Rex V. Canterbury, Bishop of, 
 
 V, Greenhill, 
 Reynell v. Sprye, 
 Reynolds v. Pitt, 
 
 Rice V. Rice, .... 
 Rich V. Cookell, .... 
 Richards, Ex parte, 
 
 V. Att.-Gen. of Jamaica, 
 V. Platel, . 
 Richardson v. England, Bank of, 
 244, 351, 
 V. Eyton, . 
 V. Hastings, 
 V. Larpent, 
 V. Merrifield, 
 V. Smallwood, 
 Rico V. Gaultier, 
 Rider v. Kidder, 
 Ridgway v. Roberts, . 
 Ripley V. Waterviforth, 
 Ripon, Earl of, v. Hobart, 
 Roberts, Ex parte, 
 v. Denny, 
 v. Ebenhart, 
 v. Marohant, 
 V. Tunstall, 
 V. Walker, 
 Robertson v. Lubbock, 
 V. Shewell, 
 Robinson v. Briggs, 
 V. Byron, 
 V. Geldard, 
 V. Governors, &c. 
 
 136, 138, 253 
 V. Lamond, ... 6 
 V. Milner, . . . 387 
 V. Page, . . 84 
 
 V. Rosher, 142, 392 
 
 113 
 282 
 100 
 353 
 44 
 75 
 280 
 
 6, 14, 175, 176, 177 
 . 109 
 . 160 
 . 93 
 . 292 
 136 
 115 
 
 352 
 
 189 
 
 241, 322 
 
 . 322 
 
 . 288 
 
 . 147 
 
 . 360 
 
 35, 130 
 
 . 210 
 
 . 245 
 
 . 211 
 
 . 292 
 
 82, 88 
 
 241, 247 
 
 399 
 62, 186 
 
 265 
 
 19 
 
 15 
 
 184 
 
 218 
 
 277 
 
 Robinson v. Wheelwright, . . 46 
 Rochdale Canal Co. v. King, . 211 
 Rochford V. Fitzmaurioe, . . 42 
 V. Hackman, . 42, 282 
 
 Rock v. Cooke, . . .298 
 
 Rocke V. Hart, .... 63 
 Rodgers v. Marshall, . . 98, 101 
 V. No will, . .217 
 
 Rogers V. Earl, . . 170 
 
 Rolfe V. Peterson, . . .108 
 V. Rolfe, . . 82 
 
 Rolt V. Hopkinson, . , .110 
 Rose V. Cunynghame, . . . 141 
 Ross V. Ross, . . 351 
 
 Ross's Trust, In re, . . 45 
 
 Rouse's Est 103 
 
 Row V. Dawson, . . .54 
 
 Rowland v. Morgan, ... 42 
 
 Rowley v. Adams, . . . 383 
 
 V. Rowley, . . 184 
 
 Ruffin, Ex parte, . . . 240, 244 
 
 Rumford Market case, ... 60 
 
 Rundell V. Murray, . . . 215 
 
 Russell V. Ashby, . 361 
 
 V. Jackson, ... 76 
 
 V. Russell, . . .123 
 
 Sadler & Jackson, Ex parte, . . 180 
 
 Sainsbury v. Jones, . . 81 
 
 St. Asaph V. Williams, . 235 
 
 St. John, Lord, v. St. John, Lady, 45 
 
 Salisbury v. Hatcher, 
 Salmon v. Cutts, . 
 
 v. Randall, 
 Salomons v. Laing, 
 Salvidge v. Hyde, 
 Sal way v. Sal way, 
 Sampson v. Pattison, 
 Samnell v. Howarth, 
 Sanders v. Rodway, 
 Sandon v. Hooper, 
 Sanford v. Morrice, 
 Saunders v. Annesley, 
 
 V. Smith, 
 Savage v. Brocksopp, 
 Saville v. Saville, 
 Sawyer v. Birchmore, 
 
 V. Mills, . 
 Say V. Creed, 
 Scales V. Collins, . 
 Scawin v. Scawin, 
 Schneider v. Heath, 
 Soholefield v. Heafield 
 Schoole V. Sail, . 
 Schreiber v. Creed, 
 Schroder v. Schroder, 
 Scoones v. Morrell, 
 Scott V. Beecher, . 
 V. Broad wood, 
 V. Dunbar, . 
 V. Jones, 
 
 Lord 
 
 82,89 
 
 61, 184 
 
 . 212 
 
 . 320 
 
 310 
 
 . 57 
 
 126 
 
 106 
 
 45 
 
 . Ill 
 
 313, 403 
 
 . 190 
 
 . 215 
 
 . 21 
 
 . 289 
 
 262 
 
 . 303 
 
 261 
 
 276 
 
 102 
 
 179 
 
 253 
 
 117 
 
 152 
 
 94 
 
 89 
 
 265 
 
 19 
 
 392 
 
 255 
 
 251 
 
TABLE OF EKGLISH CASES. 
 
 XXXI 
 
 Soott V. Nioholl, . 
 
 , 
 
 
 317 
 
 Smith V. Jeyes, . 
 
 
 243 
 
 354 
 
 Seaborne v. Clifton, 
 
 
 
 162 
 
 V. Keating, 
 
 
 31 
 
 Sealey v. Laird, . 
 
 . 
 
 
 360 
 
 V. Mules, . 
 
 
 243 
 
 Seddon v. Coanell, 
 
 268, 
 
 30 
 
 3,319 
 
 V. Nethersole, . 
 
 
 360 
 
 Seeley v. Jago, . 
 
 , 
 
 
 137 
 
 V. Pincombe, 
 
 
 313 
 
 Selby V. Jackson, . 
 
 , 
 
 
 183 
 
 V. Smith, . 
 
 
 302 
 
 V. Selby, . 
 
 
 
 275 
 
 Smythe v. Smythe, 
 
 
 356 
 
 Semple v. Birmingham 
 
 Railway 
 
 
 Soltau V. De Held, 
 
 
 211 
 
 Company, 
 
 
 
 317 
 
 Somerset, Duke of, v. Cookson 
 
 
 92 
 
 Seton V. Slade, . 
 
 
 
 90 
 
 Southeast R. R. Co. v. Brogder 
 
 , ■ 
 
 220 
 
 Shaokell v. Macaulay, . 
 
 
 
 310 
 
 Southeast'n R. R. Co. v. Subma- 
 
 
 Shaftesbury v. Marlborough, 
 
 
 55 
 
 rine Telegraph Co. . 
 
 
 309 
 
 Shakel v. Marlborough, 
 
 , 
 
 
 354 
 
 South Sea Company v. Wymond- 
 
 
 Shalloross v. Dixon, 
 
 
 
 157 
 
 sell 
 
 
 176 
 
 Sharp V. Carer, . 
 
 , 
 
 
 355 
 
 Southey v. Sherwood, . 
 
 
 216 
 
 Sharpe v. Scarborough, 
 
 
 
 256 
 
 Sowarsby v. Lacy, 
 
 
 156 
 
 Shaw V. Borrer, . 
 
 
 
 255 
 
 Spain, King of, v. Machado, 
 
 
 302 
 
 Ex parte. 
 
 
 
 14 
 
 Speer v. Crawter, 
 
 
 237 
 
 V. Lawless, 
 
 
 
 31 
 
 Spenoe, Re, 
 
 281 
 
 ,283 
 
 V. Lindsey, 
 
 
 
 370 
 
 Spencer v. Birmingham Railway, 
 
 218 
 
 V. Thaokray, 
 
 
 
 84 
 
 Spencer's Case, . 
 
 
 152 
 
 Sheddon v. Goodrich, . 
 
 
 
 . 93 
 
 Spickernell v. Hotham, 
 
 , 
 
 258 
 
 Sheehy v. Musketry, . 
 
 
 3] 
 
 0,397 
 
 Spottiswoode v. Clarke, 
 
 
 217 
 
 Sheffield v. Buckingham, 
 
 Duches 
 
 s 
 
 Sproule V. Prior, 
 
 
 275 
 
 of, ... 
 
 
 
 . 195 
 
 Spry V. Bromfield, 
 
 . 
 
 376 
 
 Shelley v. Westbrooke, 
 
 
 
 . 283 
 
 Stables, Re, 
 
 
 287 
 
 Shepherd v. Morris, 
 
 
 
 . 12 
 
 Stacey v. Elph, . 
 
 
 37 
 
 V. Mouls, 
 
 
 
 . 63 
 
 Stackhouse v. Barnston, 
 
 , 
 
 228 
 
 Sherman v. Sherman, . 
 
 
 
 . 227 
 
 Stafford v. Selby, 
 
 
 122 
 
 Sherwood v. Sanderson, 
 
 290 
 
 2< 
 
 n, 293 
 
 Stainton v. Carron Co. 
 
 , 
 
 301 
 
 Shiphard v. Lutwidge, 
 
 
 
 . 255 
 
 Stamps V. Birmingham, &c. R 
 
 R. 
 
 344 
 
 Short V. Lee, 
 
 
 
 . 377 
 
 Stanney v. Walrasley, 
 
 
 372 
 
 V. Mercier, . 
 
 
 
 . 306 
 
 Stunsbury v. Arkwright, 
 
 , 
 
 303 
 
 Shrewsbury, &o. R. R. v. 
 
 London 
 
 . 
 
 Stanton v. Chadwick, . 
 
 
 9, 17 
 
 &c. R. R. . 
 
 
 
 . 356 
 
 V. Hall, . 
 
 
 
 49 
 
 Shuttleworth v. Howarth 
 
 • 
 
 
 . 390 
 
 V. Hatfield, 
 
 
 . 
 
 391 
 
 Sidmouth v. Sidmouth, 
 
 
 
 !3, 102 
 
 Stapilton v. Stapilton, 
 
 
 , 
 
 188 
 
 Sidney v. Shelley, 
 
 
 
 . 33 
 
 Stapylton v. Scott, 
 
 
 , 
 
 84 
 
 Sieveking v. Behrens, . 
 
 
 2( 
 
 )5, 206 
 
 Steele v. Stewart, 
 
 
 
 7 
 
 Silk V. Prime, 
 
 243 
 
 2. 
 
 54, 257 
 
 Steffe V. Andrews, 
 
 
 
 192 
 
 Simraonds v. Palles, . 
 
 
 
 31 
 
 Stephens v. James, 
 
 
 
 282 
 
 Simmons v. Leonard, . 
 
 
 
 . 245 
 
 Sterndale v. Hankinso 
 
 i. 
 
 , 
 
 258 
 
 V. Rose, 
 
 
 
 . 138 
 
 Stevens v. Keating, 
 
 
 
 218 
 
 Simonds v. White, 
 
 
 
 . 271 
 
 Steward's Est., Re, 
 
 
 , 
 
 136 
 
 Simpson v. Howden, Lord, . 
 
 
 . 174 
 
 Stewart v. AUiston, 
 
 
 . 
 
 90 
 
 V. Vaughn, 
 
 
 
 . 172 
 
 V. Graham, 
 
 
 
 360 
 
 Simson v. Jones, . 
 
 
 2i 
 
 35, 289 
 
 V. Stewart, 
 
 
 18£ 
 
 , 191 
 
 Skeats v. Skeats, . 
 
 
 
 . 102 
 
 Re, 
 
 
 
 136 
 
 Skeeles v. Shearly, 
 
 
 
 . 130 
 
 Stickney v. Sewell, 
 
 
 , 
 
 56 
 
 Skinners' Co. v. Irish Society, 
 
 
 . 353 
 
 Stiffe V. Everitt, . 
 
 
 
 49 
 
 Slaney v. Sidney, 
 
 
 
 . 204 
 
 Stikeman v. Dawson, 
 
 
 , 
 
 176 
 
 Sloan V. Cadogan, 
 
 
 
 . 80 
 
 Stileman v. Ashdown, 
 
 
 , 
 
 130 
 
 Small V. Attwood, 
 
 
 1' 
 
 14, 321 
 
 Stiles V. Guy, 
 
 
 , 
 
 56 
 
 Smith V. Beaufort, 
 
 
 
 . 16 
 
 Stilwell V. Wilkins, 
 
 
 , 
 
 354 
 
 V. Clarke, . 
 
 
 
 . 177 
 
 Stirling v. Forrester, 
 
 
 
 270 
 
 V. Claxton, 
 
 
 
 . 140 
 
 Stocken v. Dawson, 
 
 
 386 
 
 ,387 
 
 V. Clay, . 
 
 
 
 228 
 
 V. Stocken, 
 
 
 
 287 
 
 V. E. I. Company, 
 
 
 
 8 
 
 Stocker v. Brockelbank, 
 
 , 
 
 239 
 
 V. Effingham, . 
 
 
 
 . 353 
 
 V. Wedderburne, 
 
 , 
 
 207 
 
 v. Garland, 
 
 
 
 145 
 
 Stockley v. Stookley, . 
 
 189 
 
 , 190 
 
 V. Hurst, . 
 
 
 I 
 
 1, 132 
 
 Stocks V. Dobson, 
 
 . 
 
 
 53 
 
xxxu 
 
 TABLE OF ENGLISH OASES. 
 
 Stone V. Compton, 
 
 , 
 
 179 
 
 V. Godfrey, 
 
 
 189 
 
 V. Theed, . 
 
 , 
 
 60 
 
 Storer v. Great Western Railway, 
 
 83 
 
 Story V. Johnson, 
 
 231 
 
 232 
 
 V. Lennox, 
 
 
 401 
 
 V. Windsor, 
 
 
 153 
 
 Strathmore v. Bowes, . 
 
 
 180 
 
 Streatfield v. Streatfield, 
 
 
 94 
 
 Stretch v. Watkins, 
 
 
 287 
 
 Strickland v. Strickland, 275 
 
 340 
 
 392 
 
 Stroud, re, . 
 
 
 192 
 
 Slroughill T. Anstey, . 
 
 
 157 
 
 Stuart V. Bute, . 
 
 
 12 
 
 V. Welch, 
 
 
 202 
 
 
 
 400 
 
 277 
 
 Sturge V. Dimsdale, . 
 
 
 Sturgis V. Champneys, 
 
 
 48 
 
 Suisse V. Lowther, Lord, 
 
 103 
 
 104 
 
 Sumner v. Powell, 
 
 
 173 
 
 Sutherland v. Briggs, . 
 
 
 87 
 
 Sutton V. Scarborough, 
 
 
 339 
 
 &c. Co. V. Kitchens, 
 
 
 347 
 
 Sweet V. Benning, 
 
 
 215 
 
 Swinborne v. Nelson, . 
 
 
 17 
 
 Sykes v. Sykes, . 
 
 
 217 
 
 Taff Vale Company v. Nixon, 
 
 
 222 
 
 Talbot V. Ford, . 
 
 
 85 
 
 V. Scott, . . 208 
 
 210 
 
 354 
 
 V. Shrewsbury, . 
 
 
 282 
 
 Tanner v. Dancey, 
 
 388 
 
 390 
 
 Tasker v. Small, 
 
 
 315 
 
 Tatam v. Williams, 
 
 173 
 
 258 
 
 Tatham v. Wright, 
 
 
 250 
 
 Taylor v. Barclay, 
 
 
 335 
 
 V. Field, . 
 
 
 242 
 
 V. Haygarth, 
 
 51 
 
 139 
 
 V. Haylin, 
 
 
 226 
 
 V. Heming, 
 
 
 18 
 
 V. Plumer, 
 
 
 144 
 
 V. Pugh, . 
 
 
 182 
 
 Re, . 
 
 
 284 
 
 V. Rundell, 
 
 12. 15 
 
 Settlement, 
 
 
 136 
 
 V. Salmon, 
 
 184 
 
 321 
 
 V. Shepherd, 
 
 
 197 
 
 V. Southgate, . 
 
 
 400 
 
 V. Taylor, ' 33, 136, 
 
 138, 
 
 217 
 
 Tebbs V. Carpenter, 
 
 63.64 
 
 Tenham v. Herbert, 
 
 
 200 
 
 Teulon v. Curtis, . 
 
 
 126 
 
 Thelluson v. Woodford, 
 
 43. 94 
 
 Thetford School case, . 
 
 
 71 
 
 Thomas v. Roberts, 
 
 
 283 
 
 V. Bering, 
 
 
 91 
 
 V. Oakley, 
 
 
 210 
 
 Re, 
 
 
 297 
 
 Thompson v. Derham, 
 
 198, 
 
 409 
 
 Ex parte, . 
 
 
 409 
 
 V. Griffin, . 
 
 
 287 
 
 Thompson v. Harrison, 
 
 V. Heffernan, 
 
 V. Percival, 
 
 V. Spiers, 
 
 V. Williamson, 
 Thornbrough v. Baker, 
 Thornett v. Haines, 
 Thornton v. Hawley, . 
 Thorpe v. Jackson, 
 Thring v. Edgar, . 
 Thynne v. Earl of Glengall, 
 Tiokel V. Short, . 
 Tidd V. Lister, 
 Timson v. Ramsbottom, 
 Tindal v. Cobham, 
 Tipping V. Clark, 
 V. Power, 
 Titley v. Davies, . 
 Todd V. Gee, 
 Toldervy v. Colt, . 
 Tollett V. ToUett, . 
 Tombs V. Roch, . . 263, 
 Tomlin v. Tomlin, 
 Tomlinson, Ex parte, . 
 
 V. Harrison, 
 Tonkin v. Lethbridge, . 
 Tonson v. Walker, 
 Tooke V. Hartley, 
 V. Hastings, 
 Tooth V. Canterbury, Dean of, 
 Topham v. Lightbody, 
 Toulmin v. Copland, . 
 Toussaint v. Martinnant, 
 Townley v. Bedwell, . 
 V. Dean, 
 V. Sherborne, 
 Townsend v. Carus, 
 
 V. Champernowne, 
 
 Re, 
 
 V. Westacott, 
 Townshend Peerage Case, 
 V. Stangroom, 
 
 85, 170, 
 Travis v. Milne, . 
 Tregonwell v. Sydenham, . 
 Trinity House Corporation 
 
 Burge, . 
 Trotter v. Trotter, 
 Tucker v. Wilson, 
 Tuffnell V. Constable, . 
 Tulk V. Moxhay, . 
 TuUett V. Armstrong, . 
 Tullitt V. TuUitt, . 
 Turner v. Borlase, 
 
 V. Cameron's, &c. Co. 
 V. Harvey, 
 V. Morgan, 
 V. Turner, 
 Turton v. Benson, 
 Twyford v. Trail, 
 Twyne's case, . 145 
 
 . 180 
 . 185 
 173 
 . 54 
 . 243 
 
 111,112 
 
 178 
 
 . 136 
 
 . 172 
 
 . 338 
 
 104, 105 
 . 227 
 49, 263 
 . 161 
 . 352 
 11,14 
 
 261, 390 
 . 272 
 . 81 
 . 354 
 . 100 
 
 265, 276 
 . 363 
 292 
 . 360 
 . 413 
 . 213 
 . 120 
 . 36 
 . 317 
 . 382 
 
 416, 417 
 
 . 269 
 
 . 141 
 
 . 205 
 
 58 
 
 . 67 
 
 . 89 
 
 115 
 
 147 
 
 . 24 
 
 171, 172 
 . 301 
 . 33 
 
 V. 
 
 5 
 
 . 383 
 
 120 
 
 106 
 
 152 
 
 44,46 
 
 . 143 
 
 . 317 
 
 , 114 
 
 . 178 
 
 230, 231 
 
 194, 287 
 
 . 180 
 
 . 387 
 
 147, 151 
 
TABLE OF ENGLISH CASES. 
 
 XXXlll 
 
 Tyler v. Lake, . 
 
 . 45 
 
 Way T. Bassett, . 
 
 
 173 
 
 Tyson v. Fairclough, . 
 
 . 354 
 
 Weall V.Rice, . 
 
 
 105 
 
 
 
 V. West Middlesex Water 
 
 
 Underhill v. Horwood, 
 
 . 173 
 
 Works, 
 
 
 201 
 
 Uniaoke, in re, 
 
 . 37 
 
 Weaver, Re, 
 
 
 199 
 
 Upjohn V. Upjohn, 
 
 . 407 
 
 Webb V. Direo. Lond, and Ports- 
 
 
 Urch V. Walker, . 
 
 37, 38 
 
 mouth R. R. 
 
 , 
 
 84 
 
 Usborne v. Baker, 
 
 . 413 
 
 V. Manchester and Leeds 
 
 
 
 
 Railway, 
 
 
 211 
 
 Vandergucht v. De Blaquiere, . 47 
 
 Re, ... 
 
 
 292 
 
 Vane v. Barnard, . 
 
 . 209 
 
 V. Shaftesbury, Lord, 
 
 
 285 
 
 Vansandeau v. Moore, . 
 
 321 
 
 V. Wools, 
 
 
 31 
 
 Vansittart v. Vansittart, 
 
 . 46 
 
 Webber v. Hunt, 
 
 
 118 
 
 Vaughan, Ex parte. 
 
 . 109 
 
 Webster v. Webster, . 
 
 
 45 
 
 T. Vanderstegan, 
 
 46, 176 
 
 Wedderburn v. Wedderburn, 
 
 62 
 
 ,246 
 
 Vernon v. Keys, . 
 
 . 177 
 
 Wedgewood v. Adams, 
 
 84, 85 
 
 V. Thelluson, . 
 
 . 260 
 
 Welch, Re, 
 
 
 286 
 
 Vice V. Thomas, . 
 
 . 247 
 
 Wellesley's case. 
 
 . 
 
 326 
 
 Vickers v. Cowell, 
 
 35 
 
 Wellesley v. Beaufort, 282 
 
 283 
 
 ,288 
 
 Vigers v. Audley, Lord, 
 
 . 414 
 
 V. Wellesley, 
 
 
 
 Voyle V. Hughes, 
 
 53, 80 
 
 36, 209, 281, 301 
 
 334 
 
 ,412 
 
 Vuillamy v. Noble, 
 
 . 223 
 
 Wellings V. Cooper, . 
 West V. Reid, 
 
 
 224 
 159 
 
 Wait, Re, . 
 
 . 242 
 
 V. Retford, In re, 
 
 
 76 
 
 Wake V. Conyers, 
 
 . 237 
 
 V. Shuttleworth, 
 
 
 68 
 
 Walburn v. Ingleby, . 
 
 . 303, 317 
 
 V. Smith, 
 
 
 397 
 
 Waldron v. Sloper, 
 
 . 151 
 
 Westby V. Westby, 
 
 
 189 
 
 Wales, Princess of, v. Liv 
 
 jrpool, 
 
 Westcott V. Culliford, . 
 
 
 392 
 
 Lord, . 
 
 . 18 
 
 Westmeath v. Salisbury. 
 
 
 45 
 
 Walford v. Pemberton, 
 
 414 
 
 Wetherell v. Collins, . ' . 
 
 
 115 
 
 Walker v. Armstrong, 
 
 . 170 
 
 Ex parte, . 
 
 
 124 
 
 V. Fletcher, 
 
 . 207 
 
 Whaley v. Dawson, . 
 
 
 310 
 
 V. Jeffreys, 
 
 . 88 
 
 Wharton v. Durham, Earl of. 
 
 104 
 
 , 105 
 
 Re, . . 
 
 . 288 
 
 V. Wharton, . 
 
 
 11 
 
 V. Symonds, 
 
 . 56, 58, 62 
 
 Whatman v. Gibson, . 
 
 
 152 
 
 V. Wetherell, . 
 
 . 286 
 
 Wheatley v. Slade, . 
 
 
 91 
 
 V. Woodward, 
 
 . 64 
 
 Wheldale v. Partridge, 
 
 
 137 
 
 Wallace v. Pomfret, . 
 
 . 105, 106 
 
 Whitaker v. Newman, 
 
 
 376 
 
 Wallwyn v. Lee, 
 
 . 160 
 
 V. Wright, . 258, 
 
 370 
 
 387 
 
 Walmsley v. Child, . 
 
 . 168 
 
 Whitbread v. Brockhurst, . 
 
 
 340 
 
 Walsh V. Gladstone, . 
 
 . 249 
 
 Ex parte, 123, 124, 
 
 295 
 
 297 
 
 Walsingham v. Goodriche, 
 
 7 
 
 V. Smith, . 
 
 
 173 
 
 Walter v. Selfe, . 
 
 . 211 
 
 Whitebread v. Bennett, 
 
 
 138 
 
 Walworth v. Holt, 
 
 . 241, 322 
 
 White V. Cuddon, 
 
 91 
 
 177 
 
 Walwyn v. Lee, . 
 
 . 162 
 
 V. Hillacre, 
 
 
 165 
 
 Warhurton v. Storr, 
 
 . 192 
 
 v. Lisle, . 
 
 
 376 
 
 Ward V. Audland, 
 
 . 80 
 
 V. Warner, 
 
 
 109 
 
 V. Baugh, . 
 
 . 96 
 
 V. White, . 
 
 39 
 
 270 
 
 Warde v. Warde, 
 
 . 6,7 
 
 V. Williams, 
 
 
 11 
 
 Ware V. Polhill, . 
 
 . 285 
 
 V. Wilson, 
 
 
 377 
 
 Warner v. Baynes, 
 
 . 230 
 
 Whitehead v. North, . 
 
 
 397 
 
 Warren v. Richardson, 
 
 . 87 
 
 Whitehouse v. Partridge, 
 
 
 360 
 
 Wason V. Waring, 
 
 . 188 
 
 Whitemarsh v. Robertson, . 
 
 
 59 
 
 Waterford v. Knight, . 
 
 378, 414 
 
 Whitmore v. Oxborrow, 
 
 
 409 
 
 Waters v, Bailey, 
 
 . 60 
 
 V. Ryan, 
 
 
 324 
 
 V. Groom, 
 
 . 61 
 
 Whittaker, Re, . 
 
 
 292 
 
 V. Mynn, 
 
 176, 803 
 
 Whittingham v. Thornburgh, 
 
 
 179 
 
 V. Taylor, 
 
 243, 354 
 
 Whitton, Ex parte. 
 
 
 117 
 
 Watkins v. Cheek, 
 
 . 156 
 
 Whitworth v. Gaugain, 
 
 
 149 
 
 Watts V. Girdlestone, . 
 
 . 63 
 
 V. Whyddon, 
 
 
 353 
 
 Re, . 
 
 . 293 
 
 Wickham v. Gattrell, . 
 
 
 175 
 
XXXIV 
 
 TABLE OF ENGLISH CASES. 
 
 Widdowson v. Harrington, Lord, . 65 
 Wigsell V. Wigsell, . . .270 
 Wild v. Gladstone, . . .341 
 Wilding V. Richards, , . .31 
 Wildens V. Arkin, . . .215 
 
 Wilkins v. Fry 55 
 
 V. Stephens, . . .144 
 
 Wilkinson v. Fowkes,. 183, 191, 415 
 
 V. Henderson, . . 173 
 
 Willan V. Willan, . . .383 
 
 Willats V. Busby, . . 147, 323 
 
 WiUet V. Winnell, . . .112 
 
 Willett V. Blandford, . . 246,247 
 
 Williams v. Chard, . . .407 
 
 Ex parte, . . . 240 
 
 V. Jersey, Earl of, 150, 303 
 
 V. Lambe, . . .162 
 
 V. Lonsdale,. . 51, 65 
 
 V. Owen, . . .111 
 
 V. Roberts, . . .197 
 
 V.Williams,. .29,31,216 
 
 Williamson v. Gihon, . . . 180 
 
 Willis V. Jernegan, . . . 227 
 
 Willonghby v. Willoughby, . 52, 163 
 
 Willis V. Slade, .... 230 
 
 V. Stradling, ... 87 
 
 Wilmot V. Jenkins, . . . 251 
 
 V.Pike,. . 53,160,161 
 
 Wilson V. Beddard, . , . 377 
 
 V. Cluer 119 
 
 Ex parte, . . .114 
 
 V. Metcalf, . . .119 
 
 V. Moore, ... 62 
 
 v. Stanhope, . . . 322 
 
 V. Wilson, . . 45, 170 
 
 Wilton V. Hill, .... 46 
 
 Wiltshire v. Rabbits, . . .161 
 
 Winch V. Birkinhead R. R. . 212 
 
 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 
 
 Wood V. Hitchings, 
 V. Milner, . 
 V. Rowcliffe, 
 V. Sutcliffe, 
 Woodgate v. Field, 
 Woodhouse v. Shepley, 
 Woodmason v. Doyne, 
 Woodruffe v. Daniel, 
 Woodward v. Millar, 
 Woodyalt v. Gresley, 
 Woolam V. Hearne, 
 Wormald v. De Lisle, 
 Worrall v. Jacob, 
 V. Jones, 
 Wortley v. Birkhead, 
 Wrangham, Ex parte, 
 Wray v. Steele, . 
 Wren v. Kirton, . 
 Wright V. Atkyns, 
 v. Howard, 
 V. Jones, . 
 V. Latham, 
 V. Lukes, . 
 V. Morley, 
 V. Pilling, . 
 V. Simpson, 
 V. Snowe, 
 V. Tallis, . 
 V. Vernon, 
 Wrigley v. Swainson, 
 Wyatt V. Barwell, 
 Wyllie V. EUice, . 
 Wythe V. Henniker, 
 
 Yates V. Hambley, 
 Yonge, Ex parte, . 
 V. Reynell, 
 York, Mayor of, v. 
 
 Young, Ex parte, . 
 v. Keighley, 
 V. Walker, 
 V. Young, . 
 
 Yovatt V. Winyard, 
 
 Zulueta V. Vinent, 
 
 85, 11 
 
 10 
 399 
 92 
 211 
 258, 372 
 187 
 400 
 308 
 177 
 62 
 1,168 
 303 
 170 
 364 
 162 
 75 
 35 
 58 
 31 
 392 
 21 
 25 
 351 
 49 
 399 
 273 
 176 
 216 
 413 
 180, 181 
 155 
 281 
 264, 275 
 
 . 126 
 . 244 
 
 . 267, 268, 269 
 
 Pilkington, 
 
 200, 204 
 . 268 
 . 241, 242 
 . 192 
 . 172 
 . 210 
 
 . 196, 356 
 
TABLE OF CASES 
 
 CITED IN THE AMEKICAN NOTES. 
 
 THE PAGES BEFBKRED TO ARE THOSE BETWEEN BRACKETS [ J. 
 
 Abercrombie v. Knox, . 
 
 PAGE 
 
 . 268 
 
 Anderson v. Lewis, 
 
 PAGE 
 
 . 336 
 
 Abney T. ICingsland, . 
 
 . 101 
 
 V. Neff, 
 
 162, 364 
 
 Abraham V. Plestoro, . 
 
 . 310 
 
 V. Thompson, 
 
 . 286 
 
 Acheson T. Miller, 
 
 . 268 
 
 V. Tomkins, . 
 
 240 
 
 Ackla V. Aokla, . 
 
 . 110 
 
 T. Ward, . 
 
 . 402 
 
 Adams v. Adams, 
 
 . 248 
 
 T. Wilkinson, 
 
 . 205 
 
 V. Brackett, 
 
 . 263, 274 
 
 Andress v. Miller, 
 
 243 
 
 V. Brown, . 
 
 . 113 
 
 Andrew T. Bible Society, 
 
 . 65 
 
 T. Dixon, 
 
 . 204, 257 
 
 Andrews v. Brown, 
 
 . 246 
 
 V. Mack ay, 
 
 . 46 
 
 V. Hobson, . 
 
 . 402 
 
 V. Whiteford, . 
 
 . 196, 356 
 
 T. Jones, 
 
 . 48 
 
 Aday T. Eobols, . 
 
 77, 91 
 
 Matter of. 
 
 . 281 
 
 Addison v. Bowie, 
 
 . 96, 287 
 
 T. Solomon, . 
 
 6 
 
 Adlum T. Yard, . 
 
 . 95 
 
 v. Sparhawk, 
 
 156 
 
 Adsit T. Adsit, 
 
 95, 96 
 
 Andrews' Heirs t. Browns' 
 
 Adm. 246 
 
 Agnew V. Bell, . 
 
 . 269 
 
 Annan v. Merritt, 
 
 . 86 
 
 V. Fetternian, . 
 
 . 254, 255 
 
 Anstioe v. Brown, 
 
 33, 138 
 
 Agric. Bk. v. Fallen, . 
 
 . 270 
 
 Anthony v. Leftwich, . 
 
 . 77, 304 
 
 Aiken v. Ballard, . 
 
 . 303 
 
 T. Rogers, . 
 
 . 118 
 
 Albea t. Griffin, . 
 
 . 86 
 
 Apthorpe t. Comstock, 
 
 196, 377 
 
 Alexander v. Fisher, . 
 
 . 208 
 
 Argenbright v. Campbell, 
 
 . 43 
 
 V. Pendleton, 
 
 . 157 
 
 Arendell T. Blackwell, . 
 
 . 346 
 
 V. Worthington, 
 
 . 263 
 
 Armitage v. AVicklifF, . 
 
 . 110, 373 
 
 Allen V. Allen, 
 
 . 48, 402 
 
 Armsby v. Wood, 
 
 . 364 
 
 V. Burke, . 
 
 . 77 
 
 Armistead v. Ward, . 
 
 . 268 
 
 V. Centre Valley R. R 
 
 Co. . 243 
 
 Armstead v. Hundley, . 
 
 . 179 
 
 V. Chambers, 
 
 . 86 
 
 Armstrong v. Athens Co. 
 
 . 362 
 
 V. Coffman, 
 
 . 309 
 
 V. Lear, 
 
 . 282 
 
 Ex parte, . 
 
 . 183 
 
 T. Pratt, 
 
 . 402 
 
 V. Getz, 
 
 . 92 
 
 v. Stone, . 
 
 . 280 
 
 T. Randolph, 
 
 338 
 
 Arnhout, Matter of, 
 
 . 290 
 
 V. Simons, . 
 
 . 317 
 
 Arnold v. Klepper, 
 
 . 211 
 
 V. Wells, . 
 
 . 243 
 
 v. Mattison, 
 
 . Ill 
 
 T. Wood, . 
 
 . 269 
 
 Arthur v. Arthur, ; 
 
 . 168 
 
 Allen's Estate, 
 
 . 86 
 
 Ashbrook t. Watkins, . 
 
 . 188 
 
 Allis V. Billings, . 
 
 . 183 
 
 Ash T. Daggy, . 
 
 . 77 
 
 Allison T. Allison, 
 
 248, 364 
 
 Ashe T. Hale, 
 
 . 196 
 
 Alsberry v. Hawkins, . 
 
 . 233 
 
 Y. Johnson, 
 
 . 356 
 
 Alston V. Munford, 
 
 263, 275 
 
 Astor 7. Miller, . 
 
 . 114 
 
 Ambler v. Norton, 
 
 . 95 
 
 V. Wells, . 
 
 153, 157 
 
 Amelung v. Seekamp, . 
 
 . 210 
 
 Astreen v. Flanagan, . 
 
 . 102 
 
 Ames v. King, . 
 
 . 217 
 
 Atkins T. Chilson, 
 
 . 208 
 
 Ancrum v. Dawson, 
 
 . 360 
 
 V. Kron, . 
 
 . 42 
 
 Anderson v. Chick, 
 
 . 86 
 
 Atkinson v. Manks, . i 
 
 21,206,389 
 
 T. Greble, . 
 
 . 268 
 
 Atlantic Ins. Co. y. Lunar, . 
 
 . 19 
 
 V. Hughes, . 
 
 . 232 
 
 Att.-Gen. v. Dtica Ins. Co. . 
 
 . 211 
 
XXXVl 
 
 TABLE OF AMERICAN CASES. 
 
 Att.-Gen. v. Jolly, . . 65, 69 
 
 V. Wallace, . 65, 68, 69 
 
 At wood V. Coe, .... 4 
 
 V. Vincent, . . . 128 
 
 Auburn Co. v. Douglass, . . 211 
 
 Autrey v. Cannon, . . . 363 
 
 Averill v. Guthrie, . . . 162 
 
 V. Loucks, . . 252, 272 
 
 Avery v. Kellogg, . . . 310 
 
 V. Petten, . . .319 
 
 Ayers V. Wright, . . 310,314 
 
 Aymar v. Roff, . . . .281 
 
 Aymer v. Gault, .... 206 
 
 Ayres v. Carver, , . . 375, 403 
 
 V. Husted, . . . 272 
 
 V. Mitchell, . . .174 
 
 V. Valentine, . . . 346 
 
 V. Waite, . .115 
 
 Babcock, Matter of, 
 Backhouse v. Patten, . . . 254 
 Backler v. Farrow, . . . 233 
 Badeau v. Rogers, . . , 389 
 
 Bailey v. Dean 3, 19 
 
 V. Brownfield, . . 268, 269 
 
 V. Burton, . . . 309 
 
 V. Duncan's Rep's, . . 233 
 V. Green, .... 3 
 V. Le Roy, . . .337 
 v. My rick, . . .312 
 
 V. Sisson, .... 230 
 
 V, Stiles 248 
 
 V. Wilson, . 10,308,344 
 
 Bainbridge v. Owen, , , .117 
 
 Baines v. McGee, . . 251, 310 
 
 Baird V. Baird, . . . 241,246 
 
 Baker v. Biddle, .... 227 
 
 V. Lorillard, . . . 285 
 
 V. Smith, . 
 
 V. Vining, . 
 
 V. Whiting, 
 
 V. Williamson, 
 
 Baker's App. 
 
 Balch V. Onion, . 
 
 Baldwin v. Salter, 
 
 V. Johnson, 
 Baldy v. Brady, . 
 Ballard v. McKenna, 
 v. Bowers, 
 V. Taylor, 
 Bait, and Ohio R. R. 
 
 »ng> • 
 Bank v. Adger, 
 V. Lynn, 
 
 of America, v. Pollock, 
 Columbia v. Hagner, 
 
 33 
 
 399 
 
 363,376,377 
 
 . 243 
 
 . 113 
 
 . 84 
 
 33, 246 
 
 . 254 
 
 . 183 
 
 . 233 
 
 . 45 
 
 V. Wheel- 
 
 196, 356, 363 
 
 . 269 
 
 308 
 
 317 
 
 88 
 
 Kentucky v. Schuylkill 
 
 Bank, . . 412,413 
 
 Kentucky v. Vnnce, . 272 
 Monroe v. Sohermerhorn, 196 
 
 Bank of Muskingum v. Carpenter, 123 
 
 U. S. V. Beverley, . 2^1, 363 
 
 v. Biddle, . 3, 303, 335 
 
 V. Carroll, . . 315 
 
 V. Carrington, . 32 
 
 V. Daniel, . 168, 170 
 
 V. Schultz, . . 304 
 
 V. Winston, . . 269 
 
 TJtica V. Messereau, 8, 344 
 
 Westminster v. Whyte, . 11] 
 
 Banks v. May, .... 78 
 
 v. Phelan, ... 65 
 
 Baptist Association v. Hart, . . 65 
 
 Barber v. Barber, .... 47 
 
 Barklay's Est 263 
 
 Barnes v. Lee, . . . .110 
 
 Barnett v. Barnett, . . .188 
 
 V. Spratt, . . .79, 174 
 
 V. Woods, . . .310 
 
 Barringer v. Burke, . . . 413 
 
 Barron v. Barron, . . 33, 45 
 
 Barrow v. Rhinelander, . 227, 397 
 
 Bartholomew v. Yaw, , . . 197 
 
 Bartle v. Nutt, . . . .268 
 
 Bartlett v. Gale, . . . .363 
 
 V. Gouge, . . . .233 
 
 Basye v. Beard, . . . 197,418 
 
 Bates V. Delavan, ... 84 
 
 V. Norcross, . . . 153 
 
 Battle V. Dunham, . . 303 
 
 Bayard v. Ches. and Del. Co. . 363 
 
 Bayley v. Greenleaf, . . . 128 
 
 Baylies v. Bussey, . . . 121 
 
 Baynton v. Barstow, . . 346 
 
 Baxter v. Farmer, . 19,23 
 
 Beach v. Beach, . . . .309 
 
 V. White, . . .317 
 
 Beall V. Blake 339 
 
 V. Fox, . . . . 6S 
 Seals V. See, . . . .183 
 Bean v. Valle, ... 79, 86 
 
 Beard v. Hubble 168 
 
 Beatty v. Byers, . . . . 136 
 
 Beaty v. Smith & Thompson, . 2] 
 
 V. Beaty, . . . .194 
 
 v. Kurtz, . . . .321 
 
 V. Thompson, ... 21 
 
 Beaufort V. Collier, . . 44,45 
 
 Beavers v. Smith, . . .233 
 
 Beck v. Simmons, . . .174 
 
 Beckwith v. Kouns, ... 84 
 
 Bedell v. Hoffman, . . .202 
 
 Beers v. Reynolds, . . . 228 
 
 V. Spooner, . . .389 
 
 Beeson v. Beeson, ... 61 
 
 Bein v. Heath, . . [ .313 
 
 Belcher v. Belcher, . ] . 84 
 
 Belknap v. Sealey, 177 
 
 Bell v. Bell, ..." i 48 
 
 V.Jasper, . . ' 269,364 
 
 V. Kellar, .... 46 
 
TABLE OF AMERICAN CASES. 
 
 XXXVU 
 
 Bell v.MayorofNewYork, 113, 118,233 
 
 Blake v. Heyward, 
 
 . 158, 162 
 
 V. Newman, . 
 
 . 243 
 
 Blakeney v. Ferguson, 
 
 . 363, 392 
 
 V. New York, 
 
 . 118 
 
 Bleight V. Bank, . 
 
 . 136 
 
 V. Pomeroy, . 
 
 . 20 
 
 Blithe V. Dwinal, 
 
 . 115 
 
 V. Price, 
 
 . 192 
 
 Blodgett V. Wadhams, . 
 
 . 110 
 
 V. Shrook, 
 
 . 317 
 
 Bloodgood V. Bruen, . 
 
 . 254 
 
 V. Twilight, . 
 
 . 153 
 
 V. Kane, . 
 
 . 337 
 
 Bellas V. MoCarty, 
 
 . 160, 162 
 
 V. Zeily, . 
 
 112, 227 
 
 Bellinger v. Shafer, 
 
 . 285 
 
 Blount V. Garen, 
 
 . 335 
 
 Belloat V. Morse, . 
 
 . 303 
 
 Blow V. Maynard, 
 
 . 233 
 
 Bellows V. Dewey, 
 
 . 268 
 
 Blue V. Patterson, 
 
 . 248 
 
 V. Stone, 85, 1 
 
 68,172,338 
 
 Blyholder v. Gilson, . 
 
 . 33 
 
 Bemis V. Upham, 
 
 . 211 
 
 Bobbin V. Flowers, 
 
 . 269 
 
 Benedict t. Lynch, 
 
 82, 88 
 
 Bodine v. Glading, 
 
 82, 88 
 
 Bennett v. Buchanan, . 
 
 . 270 
 
 Bogardus v. Trinity Church 
 
 , 338, 339 
 
 V. Butterworth, 
 
 . 118 
 
 Bogert V. Hertell, 
 
 . 138 
 
 Benson v. Le Roy, . 2 
 
 54, 259, 379 
 
 V. Bogert, 
 
 . 17 
 
 Bentley v. Cowman, . 
 
 . 333 
 
 Boggs V. Chambers, . 
 
 . 230 
 
 V. Phelps, 
 
 . 399 
 
 V. Varner, 
 
 . 153 
 
 Benzein v. Lenoir, 
 
 . 151 
 
 Boiling V. Boiling, 
 
 . 227 
 
 Bergen v. Bennet, 
 
 . 121 
 
 T. Carter, 
 
 . 157 
 
 Berger v. Duff, . 
 
 . 57 
 
 Bollinger v. Chouteau, 
 
 . 115 
 
 Berry v. Cox, 
 
 . 84 
 
 Bolser v. Cushman, . 
 
 . 235 
 
 V. Rogers, . 
 
 . 297 
 
 Bolton V. Gardner, 
 
 . 338 
 
 V. Williamson, . 
 
 .32,40,313 
 
 Bolware v^ Bolware, . 
 
 . 167 
 
 Beseley v. Lawrence, . 
 
 . 272 
 
 Bond V. Hendricks, 
 
 . 196 
 
 Best V. Blackburns, 
 
 . 177 
 
 V. Little, . 
 
 . 199 
 
 V. Schermier, 
 
 . 114 
 
 V. Zeigler, . 
 
 . 251 
 
 V. Store, 
 
 . S5 
 
 Bonsall's App. . 
 
 33, 285 
 
 Bethea v. McCall, 
 
 . 287 
 
 Boone v. Boone, . 
 
 . 230 
 
 Bethune v. Wilkins, 
 
 . 210 
 
 V. Childs, . 
 
 . 304 
 
 Belts V. Belts, 
 
 . 310 
 
 V. Chiles, . 
 
 . 162 
 
 v. Wirt, 
 
 . 136 
 
 Booth V. Albertson, 
 
 . 313 
 
 Beverly v. Brooke, 
 
 . 270 
 
 V. Barnum, 
 
 . 151 
 
 Bibb V. McKinley, 
 
 . 281 
 
 V. Booth, . 
 
 . 303 
 
 Bible V. Smith, . 
 
 . 21 
 
 V. Sineath, 
 
 . 287 
 
 Biddle v. Ash, . 
 
 . 211 
 
 V. Stamper, 
 
 . 310, 346 
 
 Bigelow V. Maynard, . 
 
 . 192 
 
 Borah v. Archer, . 
 
 . 233,315 
 
 V. Wilson, 
 
 . 114 
 
 Berth v. Sineath,. 
 
 . 287 
 
 V. Hartford Bridge 
 
 Co. . 211 
 
 Boston Co. V. Worcester R. R 
 
 Corp. 303 
 
 Biggert's Est. 
 
 . 136 
 
 Iron Co. V. King, 
 
 . 118 
 
 Biggs V. Kouns, . 
 
 . 205 
 
 Water Power Co. v. 
 
 Gray, 192 
 
 Bill V. Martin, 
 
 . 268 
 
 Bostwick V. Atkins, 
 
 . 184 
 
 Billage v. Somhee, 
 
 . 184 
 
 Ex parte. 
 
 . 285 
 
 Billington v. Welsh, . 
 
 . 152 
 
 Matter of, . 
 
 . 287 
 
 Billington's App. 
 
 . 285 
 
 Botifeur v. Weyman et al. 
 
 . 227 
 
 Bingham v. Yeomans, . 
 
 . 363 
 
 Botsford V. Beers et al. 
 
 . 303 
 
 Birchelt v. Boiling, 
 
 . 83 
 
 V. Burr, 
 
 32,33 
 
 Bird's Est. . 
 
 . 103 
 
 Boughton V. Allen, 
 
 . 312 
 
 Bishop V. Day, . 
 
 . 270 
 
 V.Phillips, . 
 
 . 389 
 
 V. Breckles, 
 
 241,243 
 
 Bowditoh V. Green, 
 
 . 269 
 
 Bisphara v. Price, 
 
 188, 192 
 
 Bowen v. Johnson, 
 
 . 222 
 
 Bitzer V. Hahn, . 
 
 . 103 
 
 V. Waters, 
 
 . 84 
 
 Bixler v. Taylor, . 
 
 . 37 
 
 Bowers v. Oyster, 
 
 . 123 
 
 Black V. Bush, . 
 
 . 243 
 
 Bowie V. Barry, . 
 
 . 233 
 
 V. Erwin, . 
 
 . 57 
 
 Bowles V. Woodson, . 
 
 . 84 
 
 V. Hare et al. . 
 
 . 61 
 
 Bowman v. Bates, 
 
 177,178 
 
 V. Scott, . 
 
 . 254 
 
 V. Irons, 
 
 . 77 
 
 V. Shreeve, 
 
 199, 335 
 
 V. Wathen, . 
 
 . 157 
 
 Blain v. Harrison, 
 
 . 234 
 
 Bowman's App. . 
 
 . 285 
 
 Blair v. Bass, 
 
 32,33,112 
 
 Boyce v. Coster, . 
 
 . 246 
 
XXXVlll 
 
 TABLE OF AMERICAN CASES. 
 
 Boyoe v. Smith, . 
 Boyd V. Brisban, . 
 
 T. Harris, . 
 
 V. Hawkins, 
 
 v. Hoyt, 
 
 V. McLean, 
 Boykin v. Cyples, 
 Boynton v. Boynton, 
 Boze V. Davis, 
 Bracken v. Kennedy, 
 
 V. Miller, 
 Braokenridge v. Holland, 
 Bradberry v. Keas, 
 Bradbury v. White, 
 Bradford v. Geiss, 
 
 V. Greenway, 
 V. Union Bank 
 
 of 
 
 nessee, 
 Bradisli v. Gibbs, . 
 Bradley v. Chase, . 
 V. Root, . 
 Bradsher v. Lea, . 
 Brady v. Cabitt, . 
 
 V. Colhoun, 
 
 V. McCosker, . 
 
 V. Waldron, 
 
 V. Weeks, 
 Brailsford v. Heyward, 
 Braily v. Sugg, . 
 Brashear v. Macey, 
 Brasher v. Van Cortlandt, 
 Brashier v. Gratz, 
 Braxton v. Coleman, . 
 
 V. Lee, . 
 Brazee v. Lancaster Bank 
 Breckenridge v. Brooks, 
 V. Ormsby, 
 Brewer v. Brewer, 
 Brewster v. Haramet, . 
 
 V. Hodges, 
 Brioe v. Brice, 
 Brickell v. Jones, . 
 Bridgen v. Carhartt, 
 Bridgett v. Carhatt, 
 Bridgman v. Bridgman, 
 Brieseh v. McCaulay, . 
 Briggs V. The Planter's Bank, 
 Brinckerhoff v. Thailhiraer 
 Brinkerhoff v. Marvin, 
 Brinson v. Thomas, 
 Britten v. Updike, 
 Broadbent v. State, 
 Broadus v. Rosson, 
 Brock V. Cook, 
 Brookway v. Copp, 
 Brogden v. Walker, 
 Bronson v. Cahill, 
 Brooke v. Berry, . 
 Brookfield v. WilUams, 
 Brooks V. Byam, . 
 
 V. Dent, . . 33 
 
 . 183 
 
 . 400 
 
 . 115 
 
 61,63 
 
 309, 310 
 
 32,33 
 
 313 
 
 404 
 
 79 
 
 240 
 
 157 
 
 57,61 
 
 174 
 
 85 
 
 344 
 
 46 
 
 Ten- 
 
 85, 168 
 
 . 99 
 
 188,292 
 
 . 364 
 
 . 211 
 
 . 106 
 
 . 239 
 
 114, 309 
 
 208, 248 
 
 211 
 
 41 
 
 269 
 
 208 
 
 297 
 
 88 
 
 233 
 
 51 
 
 163 
 
 118 
 
 183 
 
 81, 86 
 
 242, 243 
 
 . 196 
 
 151, 183 
 
 . 197 
 
 . 163 
 
 . 389 
 
 . 192 
 
 197, 363 
 
 . 272 
 
 . 121 
 
 . 272 
 
 . 269 
 
 . 270 
 
 . 19 
 
 . 286 
 
 . 86 
 
 . 335 
 
 183, 191 
 
 . 82 
 
 177, 183 
 
 . 233 
 
 :, 344, 392 
 
 , 263, 351 
 
 Brooks V. Ellis, . 
 
 
 33 
 
 V. Fowle, 
 
 
 33 
 
 V. Gibbons, 
 
 
 335 
 
 V. Harris, . 
 
 
 268 
 
 V. Marbury, 
 
 
 31 
 
 V. Stolley, 
 
 
 20 
 
 V. Thomas, 
 
 
 363 
 
 V. Wheelook, . 
 
 
 85,86 
 
 Broom v. Curry, . 
 
 
 136 
 
 Brower v. Fisher, 
 
 
 290 
 
 Brown v. Armistead, 
 
 
 168 
 
 v. Aspden, 
 
 
 399 
 
 v. Budd, . 
 
 
 153 
 
 V. Caldwell, 
 
 
 95 
 
 V. Carson, . 
 
 
 111 
 
 V. Concord, 
 
 
 69 
 
 V. Curtis, . 
 
 
 334 
 
 V. Duchesne, 
 
 
 212 
 
 V. Gilliland, 
 
 
 77 
 
 V. Haff, . 
 
 
 360 
 
 V. Higginbotham, 
 
 
 239 
 
 V. James, . 
 
 263, 275 
 
 V. Kelsey, . 
 
 
 65 
 
 V. Lynch, . 
 
 
 32 
 
 V. McDonald, . 
 
 257, 309 
 
 V. Nickle, . 
 
 111, 123 
 
 V. Peck, . 
 
 . 182 
 
 V. Ricketts, 
 
 
 55, 92, 257, 258, 316, 320 
 
 V. Southworth, . 
 
 . 23 
 
 V. Stewart, 
 
 117, 356 
 
 v. Swann, . 
 
 . 197 
 
 V. Thompson, . 
 
 . 2S2 
 
 V. Vanlier, 
 
 . 128 
 
 V. Van Dyke, . 
 
 . 228 
 
 V. Wood, 
 
 . 162 
 
 V. Worcester Bank, 
 
 . 113 
 
 Brown's Case, 
 
 . 285 
 
 Bruce v. Burdet, 
 
 . 220 
 
 V. Edwards, 
 
 . 268 
 
 Bruch V. Lantz, . 
 
 61, 156 
 
 Bruen v. Bruen, . 
 
 . 335 
 
 V. Crane, . 
 
 . 317 
 
 V. Hone, 
 
 . 191 
 
 Brush V. Vandenbergh, 
 
 . 23 
 
 V. Ware, 
 
 . 251 
 
 Bruton v. Rutland, 
 
 230, 310 
 
 Bryan v. Blythe et al. . 
 
 309, 310 
 
 Bryant v. Crosby, 
 
 . Ill 
 
 Bryson v. Peak, . 
 
 . 88 
 
 Buchanan v. Matlock, . 
 
 . 248 
 
 Buck V. HoUoway, 
 
 . 153 
 
 V. Pike, 
 
 . 33 
 
 V. Spofford, . 
 
 . 268 
 
 V. Swazey, . . C 
 
 3, 363, 389 
 
 V. Winn, . 
 
 . 246 
 
 Buckham v. Sumner, . 
 
 243, 246 
 
 Buckles V. Lafferty, 
 
 . 61 
 
 Buckley v. Buckley, . 
 
 246, 263 
 
 V. Corse, 
 
 195. 346 
 
 Budd V. Busti, 
 
 
 128 
 
TABLE OF AMERICAN CASES. 
 
 XXXIX 
 
 Buffalow V. Bnfialow, . 
 
 . 183 
 
 310 
 
 Cadwalader v. Montgomery 
 
 , 
 
 110 
 
 Buford V. Francisco, . 
 
 , , 
 
 360 
 
 Caldwell V. Blackwood, 
 
 
 314 
 
 Bugbee v. Sargent, 
 
 , , 
 
 310 
 
 V. Knott, 
 
 
 210 
 
 Buist V. Dawes, . 
 
 , 
 
 96 
 
 V. Stileman, . 
 
 
 241 
 
 Bulkley v. Bulkley, 
 
 
 303 
 
 V. Taggart, . 
 
 
 312 
 
 V. Van Wyck, 
 
 , 
 
 363 
 
 V. Williams, . 
 
 78 
 
 194 
 
 Bull V. Bull, . 
 
 . 31 
 
 254 
 
 Calkins v. Evans, 
 
 
 363 
 
 V. Schubert!), 
 
 
 239 
 
 V. Lang, . 
 
 
 45 
 
 Bullock V. Boyd, . 
 
 '. 226 
 
 227 
 
 Calloway v. Jones, 
 
 
 356 
 
 Bulows V. Committee o 
 
 fO'Neil, . 
 
 194 
 
 V. Witherspoon, 
 
 84 
 
 183 
 
 Bumpass v. Webb, 
 
 , , 
 
 192 
 
 Calvit V. Markham, 
 
 , 
 
 240 
 
 Bumpus V. Plainer, 
 
 . 
 
 152 
 
 Calwell V. Boyer, 
 
 20 
 
 231 
 
 Bunnell v. Read, . 
 
 . 168 
 
 314 
 
 Camblat v. Tupery, 
 
 
 241 
 
 Burden v. McElraoyle, 
 
 
 228 
 
 Cameron v. Mason, 
 
 
 128 
 
 V. Stein, . 
 
 
 208 
 
 Camp V. Grant, . 
 
 , 
 
 243 
 
 Burgess v. Smith, 
 
 
 198 
 
 Campbell v. Baldwin, . 
 
 
 128 
 
 Burhans v. Burhans, 
 
 230 
 
 312 
 
 V. Johnston, . 
 
 
 61 
 
 Burk V. Christman, 
 
 , , 
 
 269 
 
 V. Mesier, . 
 
 . 267 
 
 319 
 
 Burke, Matter of, . 
 
 
 287 
 
 V. Western, . 
 
 
 192 
 
 V. Smith, . 
 
 
 346 
 
 V. Whittingham, 
 
 
 179 
 
 Burn V. Poaug, 
 
 
 397 
 
 Campbell's Est. . 
 
 '. 78 
 
 106 
 
 Burnap v. Wight, 
 
 
 361 
 
 Cammack v. Johnson, , 
 
 
 243 
 
 Burnett v. Denniston, 
 
 
 113 
 
 Camp V. Bates, . 
 
 
 208 
 
 V. Sanders, 
 
 
 389 
 
 Canal Co. v. Railroad Co. 
 
 
 303 
 
 Burns v. Huntingdon I 
 
 ank, . 
 
 269 
 
 Canfield v. Morgan, 
 
 
 206 
 
 V. Taylor, . 
 
 
 128 
 
 V. Sterling, 
 
 
 389 
 
 Burnside v. Merrick, 
 
 ■ > * 
 
 246 
 
 Cannaday v. Shepard, . 
 
 
 184 
 
 Burpee v. Smith, . 
 
 . 
 
 334 
 
 Cannon v. Norton, 
 
 
 20 
 
 Burr, Matter of. 
 
 . 
 
 292 
 
 Capeheart v. Huey, 
 
 
 364 
 
 V. McEwen, 
 
 61,62 
 
 Cape Sable Co.'s Case, . 
 
 
 242 
 
 V. Sim, 
 
 33, 136, 138 
 
 139 
 
 Caplinger v. Stokes, 
 
 '. 33 
 
 184 
 
 v. Smith, 
 
 65, 69 
 
 Capner v. Flemington Min. 
 
 Co. . 
 
 208 
 
 Burrow v. Ragland, 
 
 
 248 
 
 Carberry v. Tanehill, . 
 
 
 84 
 
 Burrows v. MoWhann, 
 
 
 269 
 
 Carbury v. Tannehill, . 
 
 
 84 
 
 V. Miller, 
 
 , 
 
 400 
 
 Carey v. Callan, . 
 
 
 33 
 
 Burr's Ex'rs v. Smith, 
 
 
 69 
 
 V. Ector, . 
 
 
 346 
 
 Burr's Trial, 
 
 
 8 
 
 v. Hillhouse, 
 
 
 312 
 
 Burton v. Wiley. . 
 
 
 197 
 
 V. Hoxey, . 
 
 312 
 
 320 
 
 Burtus V. Tisdali, 
 
 , 
 
 243 
 
 V. Jones, . 
 
 
 344 
 
 Burt V. Cassity, . 
 
 
 151 
 
 v. Smith, . 
 
 
 346 
 
 Burwell v. Cawood, 
 
 ." 3ie 
 
 323 
 
 Carlisle v. Stephenson, . 
 
 
 208 
 
 V. Mandeville, 
 
 
 241 
 
 Carman v. Watson, 
 
 
 363 
 
 Busbee v. Littlefield, 
 
 
 363 
 
 Carmichael v. Browder, 
 
 
 309 
 
 Bush V. Golden, 
 
 
 153 
 
 Carnall v. Wilson, 
 
 
 168 
 
 V. Madeira, . 
 
 
 416 
 
 Carneal v. Wilson, 
 
 
 344 
 
 Butler V. Ardis, . 
 
 , , 
 
 226 
 
 Carneal's Heirs v. Day, 
 
 
 363 
 
 V. Catling, . 
 
 
 344 
 
 Carpenter v. Benson, . 
 
 
 13 
 
 V. Durham, 
 
 ." 168 
 
 309 
 
 V. Coons, 
 
 
 270 
 
 V. Elliott, . 
 
 
 364 
 
 V. Hall, 
 
 
 309 
 
 V. Haskell, 
 
 79 
 
 174 
 
 V. Mutual Safety I 
 
 [)S. Co. 
 
 83 
 
 V. Hicks, . 
 
 
 59 
 
 V. Prov. &o. Ins. C 
 
 0. 
 
 363 
 
 V. O'Hear, 
 
 , , 
 
 84 
 
 V. Schermerhorn, 
 
 
 231 
 
 V. Spann, . 
 
 
 310 
 
 Carradine v. O'Connor, 
 
 121 
 
 329 
 
 V. Stevens, 
 
 
 153 
 
 Carr v. Wallace, . 
 
 
 150 
 
 Butts V. Genung, . 
 
 
 310 
 
 Carrington v. Brents, . 
 
 
 157 
 
 Bybee v. Tharp, . 
 
 
 286 
 
 V. Didier, . 
 
 258 
 
 260 
 
 Byers v. MoClanahan, 
 
 
 269 
 
 v. Manning, 
 Carroll v. Renich, 
 
 V. Roosevelt, . 
 
 254 
 
 252 
 
 42 
 
 310 
 
 Cabeen v. Gordon, 
 
 77, 82 
 
 Carson v. Murray, 
 
 
 45 
 
 Cadbury v. Duval, 
 
 149, 156, 
 
 254 
 
 Carter v. Balfour, 
 
 65, 69 
 
 309 
 
xl 
 
 TABLE OF AMERICAN CASES. 
 
 Carter v. Carter, . 
 
 45,49, 111 
 
 233 
 
 Chewning v. Singleton, 
 
 . 167 
 
 V. Champion, 
 
 
 
 154 
 
 Child V. Brace, 
 
 . 61 
 
 V. Jones, . 
 
 
 
 317 
 
 Choteau v. Jones, 
 
 . 153 
 
 V. Longworth, 
 
 
 335 
 
 336 
 
 Chouteau v. Burlando, . 
 
 . 115 
 
 V. Holland, 
 
 
 
 286 
 
 Christ V. Diifenbach, . 
 
 106, 168 
 
 V. Treadwell, 
 
 
 
 309 
 
 Christian v. Ellis, 
 
 240, 243 
 
 Cartwright v. Clark, 
 
 
 
 403 
 
 Christler's Ex'rs v. Meddis, . 
 
 . 136 
 
 Carver v. Miller, . 
 
 
 
 268 
 
 Christmas v. Mitchell, . 
 
 . 290 
 
 Cary v. Folsom, . 
 
 
 
 270 
 
 Christy v. Barnhart, . 
 
 . 86 
 
 Case V. Abeel, 
 
 
 57, 61 
 
 Church V. Sterling, 
 
 . 33 
 
 of Covenhoven, 
 
 
 
 292 
 
 Churchill v. Akin, 
 
 . 61 
 
 of Keyzey, . 
 
 
 
 261 
 
 City Bank v. Bangs, 
 
 . 203 
 
 Casler v. Thompson, 
 
 
 
 86 
 
 of Buffalo, re Receiver of, 259 
 
 Cassidy v. McDaniel, 
 
 
 
 317 
 
 Council V. Page, . 
 
 157,224 
 
 Castleman v. Veitch, 
 
 
 230 
 
 335 
 
 of Philad'a v. Davis, 
 
 94, 95, 97 
 
 Caston V. Caston, 
 
 
 
 96 
 
 of Rochester v. Curtiss, 
 
 . 211 
 
 Catching v. Terrill, 
 
 
 
 210 
 
 Clabaugh v. Byerly, 
 
 . 150 
 
 Cates V. Woodson, 
 
 
 
 183 
 
 Clagett V. Hall, . 
 
 . 350 
 
 Catlin V. Valentine, 
 
 
 
 211 
 
 Glamorgan v. Guisse, . 
 
 . 310 
 
 Caton V. Willis, . 
 
 
 
 303 
 
 Clancey v. Craine, 
 
 . 334 
 
 Cauffman V. Cauffman, 
 
 "92, 97 
 
 Clark V. Beach, . 
 
 . 256 
 
 Center v. P. & M. Bank, 
 
 
 153 
 
 V. Bundy, . 
 
 . 23 
 
 Central Bridge v. Lowell, 
 
 
 211 
 
 V. Burnham, 
 
 32, 33 
 
 Chalmers v. Chambers, 
 
 
 309 
 
 V. Davis, . 
 
 . 335 
 
 Chamberlain v. Gardner, 
 
 
 121 
 
 V. Dutcher, . 
 
 . 188 
 
 V. Thompson, 
 
 
 28 
 
 V. Henry, . 
 
 . 112 
 
 Chamberlayne v. Temple, 
 
 
 270 
 
 V. Hunt, 
 
 128, 129 
 
 Chambers v. Mauldin, . 
 
 
 38 
 
 V. Long, 
 
 . 312 
 
 V. Tulane, . 
 
 
 84 
 
 V. Partridge, 
 
 106, 172 
 
 Chamnes v. Crutchfield, 
 
 
 168 
 
 V.Phelps, . 
 
 . 335 
 
 Chapin v. Oram, , 
 
 
 110 
 
 V. Reed, 
 
 . 392 
 
 Champlin v. Champlin, 
 
 
 8,45 
 
 V. Reins, 
 
 . 81 
 
 V. Laytin, . 
 
 
 168 
 
 V. Saginaw, 
 
 . 339 
 
 Chance v. Teeple, 
 
 
 21 
 
 V. Wilson, . 
 
 . 241 
 
 Chaney v. Smallweed, 
 
 
 281 
 
 Clarke v. Lott, 
 
 . 78 
 
 Chapin v. Weed, 
 
 
 61 
 
 V.White, . 
 
 . 211 
 
 Chaplin v. Givens, 
 
 
 37 
 
 Clark's Adm'rs v. Van Reimsdyek, 363 
 
 Chapline v. Moore, 
 
 
 287 
 
 Clarkson v. Morgan, 
 
 . 157 
 
 Chapman v. Chapman, 
 
 23 
 
 124 
 
 V. De Peyster, 
 
 55, 302 
 
 V. Hamilton, 150, 2 
 
 72,314 
 
 ,318 
 
 Clason V. Morris, . 
 
 21,269 
 
 V. Hughes, . 
 
 
 111 
 
 Clay V. Turner, . 
 
 . 174 
 
 Chappedelaine v. Dechenau 
 
 X, 
 
 227 
 
 V. Hart, 
 
 . 92 
 
 Charles R. Bridge v. Warren 
 
 Jridge, 
 
 376 
 
 V. Wren, 
 
 . 117 
 
 Charnley v. Hansbury, 
 
 
 86 
 
 Clayton v. Thompson, . 
 
 . 363 
 
 Chase v. Barrett, 
 
 
 239 
 
 Cleghorn v. Ins. Bk. of Columbus, 243 
 
 V. Lockerman, 
 
 
 263 
 
 275 
 
 Cleland v. Gray, 
 
 . 399 
 
 V. Manhardt, 
 
 
 
 363 
 
 Clifton V. Davis, . 
 
 . 183 
 
 Chase's Case, 
 
 
 
 335 
 
 Cloud V. Hamilton, 
 
 . 17 
 
 Chaudron v. Magee, 
 
 
 
 157 
 
 Cloudas's Ex'r v. Adams, 
 
 . 254 
 
 Cheales v. Kenward, 
 
 
 
 80 
 
 Clowes v. Dickenson, . 
 
 . 270 
 
 Cheeseborough v. Green, 
 
 
 268 
 
 Coats V. Robinson, 
 
 . 46 
 
 Cheesebrough v. Millard, 
 
 . 270 
 
 272 
 
 Cochran v. O'Hern, 
 
 . 45 
 
 Cherry v. Belcher, 
 
 320 
 
 363 
 
 V. Rison, 
 
 . 418 
 
 V. Stem, . 
 
 
 210 
 
 Cock V. Evans, . 
 
 310, 399 
 . 233 
 
 Ches. and Ohio Canal Co. v. " 
 
 foung. 
 
 
 V.Phillips, . 
 
 
 210, 
 
 378 
 
 Cocke V. Trotter, . 
 
 . 363 
 
 Chesson v. Chesson, . 
 
 
 227 
 
 Cookrell v. Warner, 
 
 . 402 
 
 Chester v. Greer, . 
 
 
 250 
 
 Cocran v. Middleton, . 
 
 . 315 
 
 Chesterman v. Gardner, 
 
 
 151 
 
 Coder v. Ruling, . 
 
 33 
 
 Chew V. Barnett, . 
 
 
 162 
 
 Coe V. Turner, 
 
 . 310 
 
 V. Farmers' Bk. o 
 
 fMar 
 
 yland, 
 
 6,7 
 
 Coffee V. Newsom, 
 
 . 356 
 
TABLE OF AMERICAN CASES. 
 
 xH 
 
 Coffeen v. Brunton, 
 
 . 217 
 
 Coffing V. Taylor, 
 
 . 168 
 
 Cogswell V. Cogswell, . 
 
 . 261 
 
 Colby V. Kenniston, 
 
 . 153 
 
 Cole Co. V. Anghey, 
 
 . 336 
 
 Coleman v. Gage, 
 
 . 196 
 
 V. Wooley, 
 
 . 46 
 
 Coleman's Case, . 
 
 . 290 
 
 Coles et al. v. Bowne, . 
 
 . 85 
 
 T. Raymond, 
 
 . 21 
 
 V. Treoothick, 
 
 . 61 
 
 Collins V. Carlisle, 
 
 30, 31 
 
 V. Champ's Heirs, 
 
 . 136 
 
 V. Dickenson . 
 
 . 220, 230 
 
 V. Lavenburg, . 
 
 . 46 
 
 Collom V. Francis, 
 
 . 12 
 
 Colt V. Lasnier, . 
 
 . 251 
 
 Colton V. Ross, . 
 
 . 248, 309 
 
 Colvin, Matter of. 
 
 . 289, 355 
 
 V. Owen, . 
 
 . 269 
 
 Combs V. Boswell, 
 
 . 363 
 
 Comegys v. State Bank, 
 
 . 269 
 
 Coml. Bk. V. Western R. B 
 
 . 269, 270 
 
 Comm. V. Addicks, 
 
 . 283 
 
 V. Duffield, . 
 
 . 99 
 
 V. Franklin Can. C 
 
 D. . 356 
 
 V. Martin, 
 
 . 42 
 
 V. Shelby, 
 
 . 263 
 
 T. Martin, 
 
 . 136, 139 
 
 V. Rodes, 
 
 . 154 
 
 of Moyamensing v. 
 
 Long, 302 
 
 Compton V. Greer, 
 
 . 227 
 
 Comstock V. Rayford, . 
 
 . 302 
 
 Conklin v. Conklin, . 
 
 . 233 
 
 Conner v. Chase, 
 
 . 20 
 
 V. Banks, 
 
 . Ill 
 
 V. Drake, 
 
 192, 373 
 
 V. Lewis, 
 
 . 33 
 
 Conrad v. Harrison, . 
 
 . 270 
 
 Consequa v. Fanning, 
 
 . 227, 379 
 
 Contee v. Dawson, 
 
 55, 312,350 
 
 Comer V. Pratt, . 
 
 . 417 
 
 Converse v. McKee, 
 
 . 243 
 
 Conway v. Alexander, 
 
 . Ill 
 
 « V. Ellison, 
 
 . 176, 197 
 
 Ex parte. 
 
 . 37 
 
 Conwell V. Evill, 
 
 . Ill 
 
 V. Sandidge, . 2 
 
 42, 243, 244 
 
 Cook V. Cole, 
 
 . 174 
 
 V. Cook, . 
 
 . 176 
 
 V. Heinsdale, 
 
 . 267 
 
 V. Vick, . 
 
 . 192 
 
 Cooke V. Husbands, 
 
 . 45 
 
 V. Nathan, . 
 
 . 168 
 
 Coombs V. Warren, . 
 
 . 114 
 
 Coonrod v. Coonrod, . 
 
 . 156 
 
 Cooper V. Davis, 
 
 114,208 
 
 V. Gunn, 
 
 . 317 
 
 V. Martin, 
 
 . 113 
 
 Re, . . . 
 
 . 283 
 
 V. Whitney, . 
 
 . 112 
 
 Coopwood v. Bolton, 
 Copeland v. Crane, 
 Cope V. Smith, . 
 Coppidge V. Treadgill 
 Corbett v. Corbett, 
 Corbin v. Wilson, 
 Corning v. Lowerre, 
 Cornish V.Wilson, 254,255, 
 Corn well v. Lee, 
 Cornwise v. Bourgam, 
 Correy v. Caxton, 
 Corron v. Mellaudon, 
 Coster V. Clarke, 
 
 v. Griswold, 
 Cotheal v. Talmage, 
 Cotton V. Hart, . 
 Cottrell's App. 
 Conch V. Terry, . 
 Coutant V. Servoss, 
 Covell v. DoUoiF, 
 Covenhoven's Case, 
 Cowden v. Cowden, 
 Cowden's Estate, 
 Cowdin V. Cram, 
 Cowles V. Brown, 
 
 V. Buchanan, 
 V. Carter, 
 V. Whitman, 
 Cowman v. Hall, 
 
 V. Kingsland 
 Cox V. Cox, 
 
 V. Fenwick, 
 
 V. Mayor of Griffin 
 
 V. Scott, 
 
 V. Williamson, 
 Cradock v. Cabiness, 
 Craft V. Lathrop, 
 Craig V. Craig, . 
 V. Kittredge, 
 V. Leslie, . 33, 42, 136, 
 V. Tappin, 
 Craighead v. Wilson, 
 Craik v. Clark, . 
 Cralle v. Meem, 
 Cram v. Green, 
 Crandall v. Hoystradt, 
 Crane v. Burnstrager, 
 V. Conklin, 
 v. Hewitt, 
 Crapster v. Griffith, 
 Crawford v. Summers, 
 Crawley T. Timberlake, 
 Creager v. Brengle, 
 Creath v. Smith, . 
 Creed v. Lancaster Bank, 
 Crenshaw v. Anthony, . 
 Crest V. Jack, 
 Crittenden v. Brainard, 
 Crocheron v. Jacques, 
 Crocker v. Higgins, . 
 Crockett v. Grain, 
 
 . 228 
 . 363 
 . 268 
 48, 174 
 . 230 
 . 287 
 . 211 
 257,263,272 
 . 310 
 . 286 
 . 153 
 . 323 
 
 316,400 
 . 198 
 . 108 
 . 151 
 . 269 
 . 268 
 . 270 
 
 114, 118 
 . 292 
 . 248 
 . 270 
 . 361 
 . 186 
 . 303 
 . 196 
 83,77 
 . 233 
 . 19 
 
 . 128 
 . 338 
 . 360 
 . 282 
 . 183 
 . 208 
 . 92 
 . 168 
 
 138, 139 
 . 110 
 . 375 
 . 113 
 
 258, 275 
 . 258 
 . 389 
 . 204 
 84, 183 
 . 179 
 . 233 
 . 167 
 . 208 
 . 269 
 . 417 
 
 101,416 
 . 153 
 . 268 
 . 115 
 . 37 
 
 304, 312 
 . 243 
 
xlii 
 
 TABLE OF AMERICAN CASES. 
 
 Crockett v. Maguire, . . . 153 
 Croft V. Administrators of Town- 
 send, .... 43 
 V. Arthur, . 
 ». JVIoore, . 
 Cromer v. Pinkney, 
 Crompton v. Vasser, 
 Cromwell v. Bank of Pittsburg, 
 Cronise v. Clark, 
 Crocker v. Jewell, 
 Cropster v. Griffith, 
 Crosby v. Berger, 
 V. Huston, 
 Cross V. Hepner, . 
 V. Robinson, 
 Croton Turnpike v. Ryder, 
 Crouch V. Puryear, 
 Cruger v. Halliday, . 37, 
 
 V. Heyward, . 
 Crntohfleld, Ex parte, . 
 V. Donelly, 
 Cryder's App. 
 Cudworth V. Hall's Adm'r, 
 CuUison V. Bossom, 
 Cullum V. Bloodgood, . 
 V. Casey, 
 V. Emanuel, 
 
 Cumberland v. Codrington, 261, 260, 274 
 
 Cummins V. White, . . 220,222 
 
 Cunningham v. Ashley, . . 176 
 
 V. Littlefield, . . 240 
 
 V. Pell, . . .319 
 
 V. Rogers, . . 415 
 
 Currie v. Steele, . . . .188 
 
 Curry v. Larer, .... 107 
 
 Curtis V. Lunn, .... 152 
 
 V. Mund, . . . .153 
 
 V. Tyler, . . . .310 
 
 Cushey v. Henry, ... 37 
 
 Gushing v. Ayer, . . 153, 270 
 
 Cutting V. Carter, . . . 208 
 
 Cuyler v. Ensworth, . . . 269 
 
 V. Bogert et al. . 8, 308 
 
 Dabbs V. Dabbs, . 
 Dabney v. Green, 
 Dakin v. Demming, 
 Dale V. McEvers, 
 V. Roosevelt, 
 Dalzell V. Crawford, 
 Dana v. Brown, 
 Dandridge v. Minge, 
 Danels v. Taggart, 
 Danford v. Lowry, 
 Danforth v. Smith, 
 Daniel v. Ballard, 
 
 V. Joyner, 
 
 V. Mitchell, . ... 
 
 V. Morrison's Ex'r 
 Daniels v. Mowry, 
 Darrah v. MoNair, 
 
 33, 101 
 . 269 
 . 258 
 78, 269 
 . 115 
 . 356 
 . 115 
 . 233 
 
 . 153 
 . Ill 
 . 110 
 . 211 
 . 208 
 38, 39, 303 
 . 287 
 . 285 
 . 356 
 . 263 
 . 40 
 . 9,12 
 222, 241 
 . 197 
 117 
 
 . 375 
 . 113 
 . 227 
 . 363 
 . 194 
 77, 84, 156 
 . 321 
 . 261 
 . 337 
 51,451 
 . 309 
 . 269 
 . 270 
 21, 191,397, 399 
 309, 403 
 . 113 
 . 50 
 
 Dashiell v. Att.-Gen. ... 65 
 Dashiel v. Collier, . . .233 
 David V. Grahame, . . . 121 
 Davidson v. Little, . . 79, 186 
 V. Moss, . . .179 
 V. Potts, . . .301 
 Davis & Brooks v. The Brig Seneca, 233 
 
 V. Davis 230 
 
 V. Harkness, . .281, 286 
 V. Johonnot, . . . 285 
 V. Mapes, . . . .308 
 
 V. Mayor 356 
 
 V. Mikell, . . . .269 
 
 V. Roberts, . . .286 
 
 V. Rogers, .... 168 
 
 V. Simpson, ... 61 
 
 V. Tingle, . . . .176 
 
 Davison v. De Freest, . . 285 
 
 Davoue v. Fanning, . 61, 309, 320 
 
 Dawes v. Howard, . . . 287 
 
 Dawson v. Dawson, ... 37 
 
 V. Lawrence, . . 302 
 
 v. Williams, . . .238 
 
 Day V. The State, ... 3 
 
 Deaderick v. Watkins, . 79, 174 
 
 Deal V. Bogus, . . . .243 
 
 Deal's Exr's v. Rogers, . . 226 
 
 Dean v. Dean, .... 128 
 
 V. Mitchell, . . .233 
 
 Dens V. Harvie, .... 20 
 
 Dearing v. Lightfoot, . . . 153 
 
 Deatly v. Murphy, . . .183 
 
 Deaver v. EUer, . . . 356 
 
 V. Erwin, . . 197, 356 
 
 Decamp v. Feay, . . 90, 91 
 
 De Barante v. Gott, ... 37 
 
 De Caters v. Le Roy de 
 
 Decker v. Miller, 
 
 Deckard v. Case, 
 
 Deibbler v. Barwick, . 
 
 De La Vergne v. Evertson, 
 
 De Louis V. Meek, 
 
 Delafield v. State of Illinois, 
 
 Delahay v. McConnel, . 
 
 De Lane v. Moore, 
 
 Delassas v. Posten, 
 
 Delaware and Maryland R. 
 
 V. Stump, 
 Delony v. Hutchinson, 
 
 V. Walker, 
 Demarest v. Wynkoop, 1 
 Deming v. Colt, . 
 Dennis v. Dennis, 
 V. Green, 
 V. Riley, . 
 Dennison v. Goehring, 33, 
 Denny v. Branson, 
 Dent V. Suramerlin, 
 Denton v. Denton, 
 V. Graves, 
 V. Jackson, 
 
 Chamont, 61 
 390 
 241 
 128 
 312 
 419 
 194 
 , 112 
 153 
 , 128 
 R.Co. 
 
 211 
 
 246 
 
 231 
 
 15, 152, 173 
 
 241, 246 
 
 . 168 
 
 . 356 
 
 . 389 
 
 40, 99, 101 
 
 207, 208 
 
 . 356 
 
 . 360 
 
 . 194 
 
 . 321 
 
TABLE OP AMERICAN CASES. 
 
 xliii 
 
 De Pey^r v. Clendining, . 
 
 . 37 
 
 Douglass V. Wiggins, . 
 
 
 208 
 
 V. Graves, . 
 
 . 196 
 
 Dow V. Ker, 
 
 
 123 
 
 V. Gould, . 
 
 32,33 
 
 V. Jewell, . 
 
 
 33 
 
 Matter of, . 
 
 . 62 
 
 Dowdall V. Lennox, . 
 
 
 389 
 
 Dernsh v. Brown, 
 
 . 233 
 
 Dower v. Fortner, 
 
 
 191 
 
 Desilver's Est. . 
 
 . 183 
 
 Downer v. Staine, 
 
 
 311 
 
 Despain v. Carter, 
 
 . 86 
 
 Downey v. Hotohkiss, 
 
 
 85 
 
 Deveau v. Fowler, 
 
 . 243 
 
 Dowman T. Rust, 
 
 
 156 
 
 Devereaux v. Cooper, . 
 
 308, 344 
 
 Downing v. Palmateer, 
 
 
 121 
 
 Dewitt V. Yates, . 
 
 . 104 
 
 Dows V. Durfee, . 
 
 
 228 
 
 De "Wolf V. Mallett, . 
 
 . 312 
 
 Dow's Pet. 
 
 
 285 
 
 Dexter v. Arnold, 227, 363, 3 
 
 86,416,417 
 
 Doyle V. Sleeper, 
 
 32 
 
 101 
 
 Dey V. Dunham, . 
 
 112, 153 
 
 Dozier v. Edwards, . 
 
 
 321 
 
 Dias V. Bouohaud, 
 
 316, 320 
 
 V. Lewis, . 
 
 
 268 
 
 Dick V. Pitohford, 
 
 42,44 
 
 Drake v. Pell, . 
 
 
 136 
 
 Diokerson v. Comm'rs, » 
 
 . 197 
 
 Drane v. Gunter, 
 
 
 37 
 
 Dickery v. Thompson, 
 
 . 270 
 
 Draper T. Gordon, 
 
 17, 402 
 
 403 
 
 Dickinson v. Codwise, 
 
 . 33 
 
 Drayton, Matter of, 
 
 
 296 
 
 V. Legare, . 
 
 . 24Q 
 
 Drew V. Clark, . 
 
 
 170 
 
 Dickson v. Miller, 
 
 . 46 
 
 Driver v. Driver, . 
 
 
 340 
 
 V. Montgomery, 
 
 65,69 
 
 Drope V. Miller, . 
 
 
 376 
 
 Didier v. Davison, 
 
 . 340 
 
 Drum V. Simpson, 
 
 
 304 
 
 Diffenderfer v. Winder, 
 
 . 55 
 
 Drury v. Conner, . 
 
 . 281 
 
 363 
 
 Diles V. Fleming, 
 
 . 43 
 
 V. Roberts, . 196, 243 
 
 356 
 
 Dill V. Shahan, . 
 
 . 168, 402 
 
 Dubourgh de St. Colombe's 
 
 Heirs 
 
 
 Dilly V. Heckrotte, 
 
 . 304 
 
 V. The United States, 
 
 . 
 
 222 
 
 V. Bernard, 
 
 . 363 
 
 Ducker v. Belt, . 
 
 397 
 
 416 
 
 Dimmock v. Bixby, 
 
 . 310, 335 
 
 Duckett v. Skinner, 
 
 , 
 
 285 
 
 Dinsmoor v. Hazeltoii, 
 
 12, 344 
 
 Dudley v. Bosworth, . 
 
 33, 101 
 
 102 
 
 Disbrow v. Henshaw, . 
 
 . 283 
 
 Duffee V. Calvert, 
 
 , 
 
 156 
 
 Dismukes v. Tery, 
 
 . 32 
 
 Duncan v. Duncan, 
 
 
 96 
 
 Dixon V. Doe, 
 
 . 151 
 
 V. Lyon, 
 
 20 
 
 240 
 
 Dobson V. Pearee, 
 
 . 198 
 
 V. Mizner, 
 
 
 312 
 
 Dob V. Halsey, . 
 
 . 239 
 
 Dunham v. Jackson, . 
 
 , 
 
 360 
 
 Dodd V. Seymour, 
 
 . 77 
 
 V. Minard, . 
 
 
 231 
 
 Dodge V. Perkins, 
 
 . 302 
 
 V. Rogers, 
 
 . 
 
 239 
 
 Dodson V. Simpson, . 
 
 . 251 
 
 V. Osborn, . 
 
 . 
 
 233 
 
 Doggett V. Emerson, . 
 
 . 191 
 
 V. Winans, . 
 
 
 399 
 
 T. Lane, . 
 
 . 184 
 
 Dunkley v. Van Buren, 
 
 
 117 
 
 Dominick v. Michael, 84, 
 
 88, 136, 379 
 
 Dunlap V. Clements, . 
 
 , 
 
 196 
 
 Donaldson v. Kendall, 
 
 . 240 
 
 V. Dunlap, 
 
 261 
 
 263 
 
 Donelson's Adm'rs v. Posey 
 
 . 310 
 
 V. Gibbs, 
 
 , 
 
 303 
 
 Doner v. Stauffer, 
 
 . 242, 243 
 
 V. Mitchell, . 
 
 
 61 
 
 Donnell v. Mateer, 
 
 . 230 
 
 Dunn V. Cooper, 
 
 . 309 
 
 310 
 
 Donohoo V. Lea, 
 
 . 141 
 
 V. Olney, . 
 
 , 
 
 272 
 
 Doran v. Brazleton, 
 
 . 301 
 
 V. Moore, . 
 
 , 
 
 86 
 
 Dorr V. Shaw, . 
 
 . 272 
 
 V. Sparks, . 
 
 , 
 
 269 
 
 Dorsey v. Clarke, 
 
 29, 32 
 
 Dunnien v. Coy, . 
 
 
 33 
 
 v. Dorsey, 
 
 . 61 
 
 Dunning v. Stearns, . 
 
 
 221 
 
 v. Gilbert, 
 
 . 285 
 
 Dunnock v. Dunnock, . 
 
 
 309 
 
 Doty V. Mitchell, 
 
 . 46 
 
 Dunscomb v. Dunscomb, 
 
 , 
 
 37 
 
 Doub V. Barnes, . 
 
 . 310, 356 
 
 Dunseth v. Bank U. S. 
 
 , 
 
 233 
 
 Dougan v. Blocher, 
 
 . 86 
 
 Dunwidie v. Kerley, . 
 
 , 
 
 220 
 
 Dougherty v. Humpston, 
 
 . 77 
 
 Dupont V. Johnson, 
 
 , 
 
 287 
 
 V. Jones, . 
 
 379, 383 
 
 Duponti v. Massy, 
 
 . 
 
 347 
 
 v. McColgan, 
 
 . 118 
 
 Dupuy V. Johnson, 
 
 . 268 
 
 270 
 
 V. McDougald, 
 
 . 352 
 
 Dnstin v. Newcomer, . 
 
 90,91 
 
 V. Van Nostrand 
 
 244, 246 
 
 Dutch Church v. Mott, 
 
 , 
 
 84 
 
 T. Walters, 
 
 . 399 
 
 Duval V. Bibb, . 
 
 . 
 
 128 
 
 Douglass V. Andrews, . 
 
 . 287 
 
 Duval 1 V. Meyers, 
 
 82,86 
 
 V. Sherman, . 
 
 113, 406 
 
 V. Waters, . 2 
 
 07, 208 
 
 210 
 
xliv 
 
 TABLE OF AMERICAN CASES. 
 
 Dwight V. Pomeroy, 
 Dwinal v. Smith, 
 Dyer v. Bean, 
 
 V. Clark, . 
 
 v. Martin, . 
 
 V. Potter, . 
 Dyliers v. Wilder, 
 
 Eastburn v. Kirlc, 
 Eastland v. Vanarsdel, 
 Eaton V. Benton, 
 
 V. Eaton, . 
 Ebenhart's Appl 
 Eberley v. Groff, 
 Eckert v. Baeert, 
 Eokford V. De Kay, 
 Eckstein's Est . 
 Eddy V. Traver, 
 Edgar V. Donnelly, 
 Edmonds v. Crenshaw, 
 Edmondson v. Dyson, 
 V. Welsh, 
 Edwards v. Atkinson, 
 V. Bohannon, 
 V. Handley, 
 V. Ferryman 
 Egbert V. Brooks, 
 Egberts V. Wood, 
 Elder v. Elder, . 
 Elderkin v. Fitch, 
 V. Shultz, 
 Eldred v. Camp, 
 Eldridge v. Hill, 
 Eleeson v. Nicholson, 
 Ellerbe v. The Heirs 
 
 tees of Ellerbe, 
 Ellicott V. Ellioott, 
 V. Warford 
 EUingwood v. Stevenson, 
 Elliott V. Adams, 
 
 V. Armstrong, 
 
 V. Carter, 
 
 V. Maxwell, 
 
 V. Morris, 
 
 V. Waring, 
 
 V. Wing, . 
 Ellis V. Ellis, . 
 V. Page, . 
 Ellison V. Daniels, 
 V. Moffat, 
 Ellsworth V. Curtis, 
 Elmendorf v. Delancey, 
 Elwood V. Diefendorf, 
 Emanuel v. Bird, 
 Emerson v. Udall, 
 Endicott v. Penny, 
 English V. Foxall, 
 
 V. Lane, 
 Enos V. Hunter, . 
 Ensley v. Ballentine, 
 Ensworth v. Lambert, 
 
 285. 
 
 and 
 
 . 168 
 5 
 . 363 
 . 246 
 128, 364 
 . 389 
 . 20 
 
 392, 400 
 
 84 
 106 
 192 
 272 
 363 
 324 
 364, 365 
 297 
 272 
 
 33 
 157 
 
 40 
 233 
 
 88 
 317 
 
 84 
 356 
 
 61 
 241 
 
 85 
 347, 402 
 317 
 196 
 199 
 233 
 
 Lega 
 
 28, 
 
 287 
 302 
 355 
 360 
 193 
 32, 33 
 263 
 111 
 
 28 
 48, 317 
 239 
 
 86 
 263 
 114 
 227 
 333 
 312 
 269 
 243 
 197 
 
 19 
 309 
 112 
 
 33 
 
 33 
 315 
 
 Eppes V. Randolph, . 
 
 #• 
 
 269 
 
 Erb's Appeal, 
 
 
 269 
 
 Erickson v. Willard, . 
 
 . 
 
 31 
 
 Erskine v. Townsend, 
 
 , 
 
 121 
 
 Erwin v. Parham, 
 
 . 79 
 
 174 
 
 Eskridge v. MoClure, . 
 
 , 
 
 128 
 
 Eslava v. Lepretre, 
 
 
 233 
 
 Essex V. Berry, . 
 
 , 
 
 197 
 
 Estill V. Clay, . 
 
 , 
 
 312 
 
 Eubank v. Boston, 
 
 , 
 
 128 
 
 Evans v. Boiling, 
 
 . 
 
 371 
 
 V. Duncan, 
 
 257 
 
 272 
 
 v. Evans, 
 
 233 
 
 244 
 
 V. Goodlet, 
 
 , 
 
 128 
 
 v. Jones, . 
 
 153 
 
 154 
 
 V. Kingsberry, . 
 
 90 
 
 136 
 
 V. Knorr, . 
 
 , 
 
 45 
 
 V. Tatem, . 
 
 , , 
 
 395 
 
 JEverett v. Winn, 
 
 , 
 
 317 
 
 Everitt v. Watts, 
 
 
 338 
 
 Everly v. Rice, . 
 
 196 
 
 268 
 
 Everetson v. Booth, 
 
 272 
 
 400 
 
 V. Tappan, . 
 
 . 
 
 233 
 
 Executors of Burr v. Smith, 
 
 . 
 
 65 
 
 Ex'oi-s of Radcliffe v. Wightman, 327 
 
 Ex parte Crumb, . . 281, 283 
 
 de Graffenreid, . . 283 
 
 Drayton, . . .292 
 
 Eyre v. Golding, . . .103 
 
 v. Potter,' . .174, 176, 303 
 
 Eyrioh v. Hetrich, ... 37 
 
 Eyton v. Mostyn, . . . 356 
 
 Fabre v. Colden, .... 48 
 Fairbanks v. Bloomfield, . .110 
 Fall River Whaling Company v. 
 
 Borden, .... 239, 243 
 Fambro v. Gantt, . . . 251 
 
 Fancher v. Ingraham, . . . 335 
 Faringer v. Ramsey, ... 33 
 Farley v. Blood, . . . 202, 206 
 V. Bryant, . .168, 363, 364 
 Farmers' and Mechanics' Bank v. 
 
 Griffith, 346 
 
 Farmers' Bank v. Vanmeter, . 197 
 Farnsworth v. Childs, . . 153, 154 
 Farnam v. Brooks, . . . 179 
 Faset V. Traber, . . . 270, 272 
 Faulkner's Adm'x v. Harwood, . 20 
 . . 239 
 . 44, 45, 46 
 . 20 
 . 310 
 . 44 
 . 402 
 . 197 
 . 115 
 . 379 
 . 338 
 37, 61 
 . 92 
 
 Fay v. Noble, 
 Fears v. Brooks, . 
 Felch v. Hooper, . 
 Felder v. Davis, . 
 Fellows v. Tann, 
 Fenton v. Williams, 
 Fentriss v. Robins, 
 Fenwick v. Macey, 
 Fenwicke v. Gibbes, 
 Ferguson v. OHara, 
 Field V. Arrowsmith, 
 v. Eaton, 
 
TABLE OF AMERICAN CASES. 
 
 xlv 
 
 Field V. Jones, 
 
 T. Schiffelin, . 17, 
 V. Wilson, . 
 Findlay v. Smith, 
 
 V. Ex'r U. S. Bank, 
 V. Riddle, 
 Finley v. Bank of U. S. 
 Fish V. Howland, 
 
 V. Miller, 
 
 Fisher V. Boody, . .176, 
 
 V. Fields, . 
 
 V. Johnson, 
 
 V. Kay, . 
 
 V. Tucker, 
 
 Fitzgerald v. Peck, 
 
 Fitzpatrick v. Featherstane, 
 
 Fitzsimmons v. Goslin, 
 
 Flagg V. Mann, 28, 123, 151, 
 
 Fleeson v. Nicholson, . 
 
 Fleming v. Burgin, 
 
 V. Donahoe, . 
 V. Beaver, 
 V. Burgin, 
 Fletcher v. Wilson, 
 Flint V. Clinton Co. 
 Flowerton v. Wimbisb, 
 Floyd V. Baker, . 
 Fluck T. Replogle, , 
 Fog V. Johnstone, 
 Folk V. Beidleman, 
 Foltz V. Pourie i Dawson, 
 Fontain v. Ravenal, 
 Forbes v. Whitlock, . 
 Ford V. Gaithur, . 
 Forde V. Heron, . 
 Foreman v. Murray, . 
 V. Rodgers, . 
 Forkner v. Stuart, 
 Fort V. Ragusin, . 
 Foss V. Haynes, . 
 Foster v. Alston, . 
 V. Cook, . 
 V. Crenshaw's Ex'rs, 
 V. State Bank, . 
 V. Trustees, 
 Fourniquet v. Perkins, 
 Foust V. Moorman, 
 Fowle V. Lawrason, . 
 Fowler, Matter of, 
 
 V. Saunders, . 
 Foy V. Foy, 
 France v. France, 
 Franklin v. Osgood, . 
 Frazer v. Legare, 
 Frazier v. Brownlow, . 
 
 V. Frazier, 
 Freeland v. Cocke, 
 
 V. Heron, , 
 V. Wilson, ; 
 Freeman v. Elmendorf, 
 V. Hood, 
 
 . 355 
 251,402 
 303 
 208 
 272 
 
 40 
 
 315 
 
 317 
 
 338 
 
 177, 303 
 
 28 
 
 129 
 
 90,91 
 
 240 
 
 170 
 
 81,84 
 
 177 
 
 159, 162 
 
 233 
 
 153 
 
 28 
 269 
 3 53 
 403 
 
 37 
 313 
 
 32 
 117 
 240 
 150 
 
 20 
 
 65 
 321 
 263 
 246 
 286 
 317 
 1,241 
 
 23 
 310 
 280 
 309 
 274 
 197 
 33, 269 
 387 
 230 
 220 
 293 
 303 
 
 28 
 356 
 309 
 312 
 
 46 
 
 32 
 
 227 
 
 228 
 
 202 
 
 196, 355 
 
 . 45 
 
 11 
 
 Freeman v. Kelly, 
 
 
 33 
 
 Freley v. Hendricks, . 
 
 
 417 
 
 Frelick v. Turner, 
 
 . 
 
 286 
 
 French v. French, 
 
 , 
 
 183 
 
 V. Loyal Company, . 
 
 
 157 
 
 V. Shotwell, . 
 
 338 
 
 339 
 
 Frets V. Brown, . 
 
 , 
 
 287 
 
 Frink v. Lawrence, 
 
 , 
 
 211 
 
 Frisby v. Ballance, 
 
 77, 84, 85 
 
 Fripp V. Fripp, . 
 
 . 
 
 79 
 
 Fronty v. Fronty, 
 
 . 
 
 186 
 
 Frost V. Beekman, 
 
 , 
 
 151 
 
 Frothinghara v. McKusick, 
 
 , 
 
 114 
 
 V. Stacker, 
 
 , 
 
 153 
 
 Frye v. Bank of Illinois, 
 
 , 
 
 114 
 
 Fuller V. Benjamin, . 
 
 , 
 
 321 
 
 V. Yates, . 
 
 . 
 
 95 
 
 Fulwood v. Bashfield,. 
 
 , 
 
 269 
 
 Funsler v. Jones, . 
 
 
 33 
 
 Furlong v. Edwards, . 
 
 352 
 
 356 
 
 Furman v. Coe, . 
 
 • 
 
 57 
 
 Gadsden v. Lord, 
 
 
 269 
 
 Gafney v. Reeves, 
 
 
 373 
 
 Gaillard v. Porcher, . 
 
 , 
 
 45 
 
 Gaines v. Chew, 
 
 248 
 
 310 
 
 V. Spann, 
 
 , 
 
 280 
 
 Gaither v. Gaither, 
 
 , 
 
 248 
 
 Galatian v. Cunningham, . 
 
 17 
 
 232 
 
 V. Erwin, 
 
 17 
 
 403 
 
 Galbraith v. Gedge, 
 
 . 233 
 
 239 
 
 Gallatin v. The Pilot, . 
 
 
 268 
 
 Gallego V. Att.-Gen. . 
 
 
 65 
 
 V. Lambert, . 
 
 
 65 
 
 Galloway v. Hamilton's He 
 
 rs, . 
 
 129 
 
 Gait V. Calland, . 
 
 
 240 
 
 V. Jackson, . 
 
 
 111 
 
 Galpbin v. McKinney, 
 
 
 316 
 
 Gammon v. Freeman, . 
 
 
 233 
 
 V. Howe, 
 
 
 107 
 
 Gans V. Renshaw, .^ 
 
 
 84 
 
 Ganse, Matter of. 
 
 
 293 
 
 Gardiner v. Bering, . 
 
 
 208 
 
 Gardner v. Gardner, . 
 
 
 156 
 
 V. Newburgh, 
 
 
 211 
 
 Garfield v. Hatmaker, . 
 
 
 33 
 
 Garland v. Bowling, 
 
 
 174 
 
 V. Loving, 
 
 
 285 
 
 (Garner v. Garner, 
 
 '40, 42 
 
 v. Keaton, 
 
 
 346 
 
 Garnett v. Macon, 79, 88, 1 
 
 56,251 
 
 ,261 
 
 Garr v. Bright, . 
 
 
 313 
 
 V. Drake, . 
 
 
 379 
 
 Garrett v. Garrett, 
 
 
 33 
 
 V. White, 
 
 
 230 
 
 Garretson v. Vanloon, . 
 
 
 8S 
 
 V. Weaver, . 
 
 
 243 
 
 Garson v. Green, 
 
 
 128 
 
 Gartland v. Nunn, 
 
 
 314 
 
 Garton v. Bates, . 
 
 
 235 
 
 Carton's Heirs v. Bates, 
 
 
 303 
 
xlvi 
 
 TABLE OF AMERICAN CASES. 
 
 Gary v. Cannon, .... 268 
 Gass V. Stinson, . . . 371, 379 
 V. Wilhite, ... 65, 67 
 
 Gate V. Adams, . . . .270 
 Gatewood v. Ruoker, . . . 317 
 Gause v. Hale, .... 45 
 Gayle v. Singleton, . . . 346 
 Gay V. Ballou, . . . .287 
 Gearhart v. Jordan, . . 267, 272 
 Gelston V. Hoyt, ... 19, 20 
 
 George v. Strange, . . .157 
 George's Creek Coal Co. v. Det- 
 
 inold, 210 
 
 Gernon v. Bocoaline, . . . 360 
 Getman v. Getman, ... 32 
 Gibbes v. Cobb, . . . .153 
 Gibbs V. Claggett, . . .310 
 
 V. Marsh 30 
 
 Gibert v. Colt, . . . .360 
 Gibler v. Trimble, . . .159 
 Gibson v. Bailey, . . . 121 
 
 V. Goldthwaite, 
 
 203, 204, 205, 206 
 
 V. McCormiok, . 261, 263 
 
 V. Tilton, . . .196 
 
 et al. V. Broadfoot, . . 192 
 
 Gifford V. Thorn, . . . .174 
 
 Gilbert v. Gilbert, . . .168 
 
 V. Mickle, . . .211 
 
 V. SutlifF, . . . .314 
 
 Gilkey v. Paige, .... 344 
 
 Gill V. Lyon et al. . . . 270 
 
 V. McAttee, . . . .153 
 
 V. Webb, .... 175 
 
 Gillespie v. Moon, . 85, 168, 172 
 
 V. Sooierville, . . 233 
 
 Gillett V. Hall 240 
 
 Gilman v. Brown, . ; , 128 
 
 V. Hidden, . . . 121 
 
 Gilmore v. Gilmore, . . 379 
 
 V. N. A^Land Co. . . 243 
 
 V. Patterson, . . . 363 
 
 Girard v. Bradley, . . .81 
 
 Gist V. Frazier, . . , .174 
 
 Givens v. McCaltnont, . . us 
 
 Glasscock v. Minor, . . .177 
 
 Glaze V. Drayton, . . .81 
 
 Glenn v. Fowler, .... 194 
 
 V. Grover, . . . 3O8, 363 
 
 V. Randall, . . 21, 363 
 
 Glover v. Fisher, .... 88 
 
 Godwin v. Yonge, . . I68 
 
 Golden v. Maupin, . . . 235 
 
 Goldsborough v. Ringgold, . . 168 
 
 Gomez V. Tradesmen's Bank, . 33 
 
 Good V. Herr, . . . .170 
 
 Goodburn v. Stevens, . . . 233 
 
 Goodhue v. Barnwell, . . .281 
 
 Goodrich v. Pendleton, . 337, 339, 340 
 
 Goodwin v. McGehee, . . .157 
 
 V. State Bank, . . 196 
 
 Gordon v. Green, . 
 
 . 28 
 
 V. Stephens, 
 
 . 95 
 
 V. Watkins, 
 
 . 23 
 
 Gorham v. Gorhara, 
 
 ; 290 
 
 Goss V. Lester, 
 
 . 272 
 
 Gossin V. Brown, . 
 
 . 269 
 
 Gott V. Cook, 
 
 . 136 
 
 Gough V. Crane, . 
 
 . 86 
 
 V. Pratt, . 
 
 . 197 
 
 Gould V. Gould, . 
 
 . 248 
 
 V. Hayes, . . 2> 
 
 30, 314, 316 
 
 V. Womack, 
 
 . 77 
 
 Gouverneur v. Elmendorfl^ 
 
 176, 303 
 
 V. Lynch, . 
 
 . 270 
 
 Gowan v. Jefiries, 
 
 . 243 
 
 Gracie v. Freeland, 
 
 . 397 
 
 Graft" V. Castleman, 
 
 . 251 
 
 Graham v. Davidson, . 
 
 . 58 
 
 V. Hackwith, . 
 
 84, 167 
 
 v. Lambert, . 
 
 . 28 
 
 V. Pancoast, . 
 
 . 1S3 
 
 V. Samuel, 
 
 . 153 
 
 V. Tankersley, 
 
 402, 403 
 
 Graham's Appeal, 
 
 . 282 
 
 Grant v. Duane, . 
 
 . 113 
 
 V. Quick, . 
 
 194, 198 
 
 V. United States Bank, 
 
 20, 163 
 
 Gratz V. Cohen, . 
 
 . 183 
 
 Graves v. Dugan, 
 
 . 33 
 
 V. Fresh, . 
 
 . 310 
 
 Gray v. Gray, 
 
 . 392 
 
 v. Regan, . 
 
 334, 335 
 
 V. Washington, . 
 
 . 227 
 
 Graydon v. Graydon, . 
 
 230, 231 
 
 Great Falls Co. v. Worster, 
 
 . 117 
 
 Green v. Demoss, 
 
 . 128 
 
 V. Drinker, 
 
 . 153 
 
 v. Green, . 
 
 . 233 
 
 V, MoKinney, . 
 
 . 312 
 
 V. Oaks, . 
 
 . 211 
 
 V. Phillips, 
 
 . 196 
 
 V. Ram age. 
 
 . 270 
 
 V. Slayter, . 
 
 151, 157 
 
 V. Thompson, . 
 
 . 183 
 
 V. White, 
 
 . 157 
 
 V. Winter, . 5J 
 
 , 59, 61, 62 
 
 Greenault v. Krider, 
 
 . 268 
 
 Greene v. Greene, 
 
 . 246 
 
 Greenfield's Est. . 
 
 . 184 
 
 Greenleaf V. Queen, 
 
 . 55 
 
 Greenon v. Hoey, 
 
 . 196 
 
 Greer v. Caldwell, 
 
 . 168 
 
 Greenwood v. Broadhead, 
 
 . 243 
 
 Gregory v. Murrell, 
 
 . 269 
 
 V. Valentine, . 
 
 . 413 
 
 Gregory's Ex'r v. Forrester, 
 
 . 227 
 
 Gretton v. Haward, 
 
 . 92 
 
 Gridley v. Dole, . 
 
 . 240 
 
 Grier v. Gregg, . 
 
 . 343 
 
 Griffin v. Graham, 
 
 . 65 
 
 V. Morrell, 
 
 . 309 
 
TABLE OP AMERICAN CASES. 
 
 xlvii 
 
 Griffith V. Beecher, 
 
 , 
 
 141 
 
 Hamersley v. Smith, . 
 
 . 44 
 
 V. Coleman, 
 
 
 313 
 
 Hamilton v. Bishop et al. 
 
 . 45 
 
 V. Frederick Co. Bank, 
 
 . 
 
 77 
 
 T. Hamilton,. 
 
 . 240 
 
 V. Griffith, 
 
 37 
 
 157 
 
 T. Hughes, . 
 
 . 233 
 
 V. Ricketts, 
 
 , 
 
 136 
 
 V. Rogers, 
 
 . 110 
 
 Griffits V. Cope, . 
 
 
 68 
 
 V. Whetridge, 
 
 . 211 
 
 Griggs V. Thompson, . 
 
 . 
 
 335 
 
 Hamlin T. Bridge, 
 
 . 313 
 
 Grim v. Wheeler, 
 
 
 344 
 
 Hamraersly v. Barker, 
 
 . 392 
 
 Grimstone v. Carter, . 
 
 151 
 
 153 
 
 Hammond v. Hammond, . 
 
 . 103 
 
 Griswold V. Smith, 
 
 , 
 
 153 
 
 V. Michigan State I 
 
 ank, 310 
 
 Grosvenor v. Austin, . 
 
 , 
 
 243 
 
 Hampton v. Levy, 
 
 . 269 
 
 Groton V. Roxborough, 
 
 , 
 
 114 
 
 Hancock v. Day, 
 
 . 268 
 
 Groundie v. Northampton Co. 
 
 , 
 
 150 
 
 Handley v. Fitzhugh, . 
 
 . 220 
 
 Grove v. Brien, . 
 
 , 
 
 270 
 
 Hanks, Matter of, 
 
 . 292 
 
 V. Field, . 
 
 . 
 
 418 
 
 Hanna v. Spotts, 
 
 . 281 
 
 V. Pettis, . 
 
 , 
 
 302 
 
 Hannahan v. Nichols, , 
 
 . 360 
 
 V. Potter, . 
 
 , 
 
 311 
 
 Harbers v. Gadsden, . 
 
 . 90 
 
 Grover v. Hall, , 
 
 
 227 
 
 Harbison v. Lemon, . 
 
 84, 183 
 
 GroTes v. Fulsome, 
 
 . 
 
 331 
 
 Hardeman v. Burge, . 
 
 . 192 
 
 Guerry t. Durham, . 329, 
 
 356 
 
 ,419 
 
 Harden v. Harden, 
 
 . 33 
 
 T. Perryman, . 417 
 
 418 
 
 ,420 
 
 V. Miller, . 
 
 . 335 
 
 Guion V. Knapp, . 
 
 
 270 
 
 Harding v. Handy, . 183 
 
 191, 303 
 
 Gumes v. Hoyt, . 
 
 
 175 
 
 V. Randall, . 
 
 . 177 
 
 Gunn T. Harrison, 
 
 
 199 
 
 Hardwick v. Hook, . 
 
 . 364 
 
 Guthrie v. Gardner, . 
 
 33 
 
 ,101 
 
 Hardy v. Sproule, 
 
 . 268 
 
 Guthrie's App. . 
 
 
 297 
 
 v. Summers, . 
 
 . 151 
 
 Gwin V. Melraoth, 
 
 
 211 
 
 Harlan v. Wingate's Adm. . 
 Harland's Accounts, . 
 
 . 363 
 
 . 287 
 
 Haokett v. Alcock, 
 
 
 107 
 
 Harmer v. Gwynne, . 
 
 . 199 
 
 Hackwith T. Damron, . 
 
 
 152 
 
 Harnsberger v. Kinney, 
 
 197 
 
 Haddix v. Haddix, 
 
 
 61 
 
 Harper v. Archer, 
 
 . 33 
 
 Hadley v. Hopkins Academy, 
 
 
 68 
 
 V. Phelps, 
 
 . 31 
 
 Hadlock V. Bulfinch, . 
 
 
 110 
 
 V. Reno, 
 
 151, 153 
 
 Hagan v. Walker, 
 
 250 
 
 ,315 
 
 v. Williams, . 
 
 . 128 
 
 Hagthorp V. Hook, 
 
 
 
 Harrell v. Ellsworth, . 
 
 . 211 
 
 8,118,152,308 
 
 344 
 
 ,363 
 
 Harrington v. Brown, . 
 
 . 61 
 
 Hahn V. Hart, 
 
 , 
 
 197 
 
 V. Slade, . 
 
 . 408 
 
 Haigood t. Wells, 
 
 , 
 
 286 
 
 Harris v. Arnold, 
 
 . 153 
 
 Haight T. Morris Aqueduct, . 
 
 , 
 
 363 
 
 V. Carter, 
 
 . 151 
 
 Haines v. Beach, . 
 
 . 
 
 315 
 
 V. Knickerbacker, . 
 
 . 86 
 
 T. O'Conner, 
 
 32, 33 
 
 V. Sangston, 
 
 . 356 
 
 Halbert v. Grant, . 
 
 , 
 
 310 
 
 V. Thomas, 
 
 . 208 
 
 Halderman v. Halderraan, . 
 
 
 241 
 
 V. Tyson, . 
 
 . 178 
 
 Hale v. James, . 
 
 , 
 
 233 
 
 V. Williams, . 
 
 . 389 
 
 V. Hale, 
 
 
 221 
 
 Harrisburg Bank v. Tyler, . 
 
 . 33 
 
 T. Henrie, . 
 
 
 246 
 
 Harrison v. Harrison, . 
 
 31, 47 
 
 Haleyburton v. Kershaw, 
 
 
 261 
 
 V. Long, 
 
 . 221 
 
 Hall v. Hall, . 86, 92, 94, 
 
 263 
 
 274 
 
 v. McMennomy, . 
 
 . 28 
 
 V. Reed, 
 
 , 
 
 168 
 
 V. Mock, 
 
 . 57 
 
 T. Ross, 
 
 
 84 
 
 V. Rowan, . 
 
 . 376 
 
 V. Stewart, . 
 
 
 240 
 
 V. Rush, 
 
 . 375 
 
 V. Thompson, 
 
 177 
 
 179 
 
 V. Sterry, 
 
 . 241 
 
 Hallett T. Collins, 
 
 
 162 
 
 V. Town, . . 
 
 . 179 
 
 V. Hallett, 
 
 258 
 
 320 
 
 V. Turbeviile, 
 
 . 167 
 
 T. Thompson, . 
 
 
 42 
 
 Hart V. Hart, 
 
 . 86 
 
 Hall's Ex'rs v. Click, . 
 
 
 128 
 
 V. Hawkins, 
 
 . 246 
 
 Hallstead v. Bank of Kentucky 
 
 ■ 
 
 154 
 
 T. Mayor of Albany, . 
 
 . 210 
 
 Halsted v. Rabb, . 
 
 , 
 
 221 
 
 V. McKean, 
 
 . 310 
 
 Ham V. Goodrich, 
 
 , 
 
 86 
 
 V. Ten Eyok, . 
 
 57, 379 
 
 Hamberlin T. Terry, . 
 
 
 248 
 
 V. The Mayor of Albany, 
 
 210,211 
 
 Hamblin T. Dinneford, 
 
 
 81 
 
 Hartshorne v. Cuttrell, 
 
 . 192 
 
xlviii 
 
 TABLE OF AMERICAN CASES. 
 
 Hartshorne v. Hartshorne, 
 Harvard College v. Society for Pro- 
 
 233 
 
 moting Theological Education, . 
 
 313 
 
 Harvey v. Alexander, . 
 
 
 364 
 
 Harwood v. Kirby, 
 
 
 230 
 
 Hasenclever v. Tucker, 
 
 
 263 
 
 Haskell v. Haskell, 
 
 
 9 
 
 Hassanclever v. Tucker, 
 
 
 274 
 
 Hassard v. Rowe, 
 
 
 285 
 
 Basting's Case, 
 
 
 272 
 
 Hatcher v. Hatcher, . 
 
 .' 86 
 
 ,270 
 
 Hattier v. Etinaud, 
 
 
 192 
 
 Hatton v. Weems, 
 
 
 61 
 
 Hausberger v. Root, . 
 
 
 90 
 
 Hauser v. Shore, 
 
 
 156 
 
 Haughy v. Strang, 
 
 
 197 
 
 Havens v. Havens, 
 
 
 95 
 
 V. Hussey, 
 
 
 241 
 
 Havey v. Foley, . 
 
 
 268 
 
 Hawkins v. Hawkins, 
 
 
 364 
 
 V. King, . . 
 
 
 110 
 
 Hawley v. Clowes, 
 
 . 208 
 
 ,210 
 
 V. Cramer, 
 
 61, 151 
 
 , 312 
 
 V. James, 32, 
 
 37, 57, 58, 61, 
 
 136 
 
 138, 139 
 
 ,233 
 
 V. Mancius, . 
 
 . 61 
 
 ,272 
 
 V. Sheldon, . 
 
 
 82 
 
 V. Wolverton, 
 
 , , 
 
 306 
 
 Hay V. Marshall, 
 
 . 220 
 
 222 
 
 Haydon v. Goode, 
 
 . 
 
 275 
 
 Hayes v. Caldwell, 
 
 , , 
 
 3 
 
 V. Heyer, 
 
 
 356 
 
 V. Johnston, 
 
 
 203 
 
 V. Kershow, 
 
 
 78 
 
 V. Ward, . 
 
 
 268 
 
 Hays V. Jackson, . 
 
 '. 263 
 
 275 
 
 V. Hall, 
 
 
 81 
 
 V. Heidleberg, . 
 
 
 95 
 
 Y. Wood, . 
 
 
 270 
 
 Hayward v. Carroll, . 
 
 20 
 
 304 
 
 T. Cuthbert, . 
 
 
 287 
 
 Haywood v. Judson, . 
 
 
 231 
 
 Hazen v. Burling, 
 
 
 258 
 
 V. Thurber, 
 
 
 233 
 
 Head v. Muir, . 
 
 
 192 
 
 Heard, Ex parte, . 
 
 
 282 
 
 Heathman v. Hall, 
 
 
 45 
 
 Hedges v. Riker, 
 
 
 285 
 
 Heeney, Matter of, 
 
 
 297 
 
 Heller, Matter of, 
 
 
 296 
 
 Helm V. Darby, . 
 
 
 259 
 
 Helms v. Franciscus, . 
 
 
 364 
 
 Hemiup, Matter of. 
 
 261,385 
 
 392 
 
 Hemphill's Appeal, 
 
 
 55 
 
 Henderson v. Burton, . 
 
 . 128 
 
 254 
 
 V. Dennison, 
 
 
 336 
 
 V. Hays, 
 
 . 
 
 77 
 
 V. Lowry, . 
 
 
 121 
 
 V. Wilson, . 
 
 
 139 
 
 Hendricks v. Robinson, 
 
 
 61 
 
 Hendrickson v. Hinckley, 
 
 
 197 
 
 Henn v. Walsh, 
 Hennessey v. Andrews, 
 Henning V. Beaver, 
 Henry v. Liles, . 
 v. Morgan, 
 Henshaw v. Wills, 
 Hepburn v. Auld, 
 T. Curts, 
 V. Dunlop, 
 V. Snyder, 
 Herbert v. Wren, 
 Herr v. Bierbower, 
 Herriok v. Blair, 
 Herron T. Williamson, 
 Hertell v. Bogert, 
 Hester v. Wilkinson, 
 Heth V. Cocke, . 
 Hewitt V. Crane, . 
 
 V. Sturdevant, 
 Hewlett V. Hewlett, 
 Heyward v. Cuthbert, 
 Hickeyv. Young, 
 Hickman v. Cooke, 
 V. Grimes, 
 V. McCnrdy, 
 V. Stout, 
 Heister v. Madeira, 
 
 V. Fortner, 
 Higdon V. Heard, 
 Higgins V. Woodward, 
 Hightower v. Mustian, 
 
 V. Smith, 
 
 Higinbotham v. Burnet, 
 
 High and wife v. Batte, 
 
 Hilar v. Darby's Adm'r, 
 
 Hill V. Commiss, . 
 
 v. Epley, 
 
 V, Lackey, 
 
 V. McLaurin, 
 
 V. Ressegien, 
 
 V. U. S. 
 
 Hilleary v. Hurdle, 
 
 Hillyard v. Miller, 
 
 Hilt V. Ormsbee, . 
 
 Himes V. Kellar, . 
 
 Hinchman v. Richie, 
 
 Hine v. Handy, . 
 
 Hines v. Spruill, . 
 
 Hinkle v. Currin, . 
 
 Hinsdill v. Murray, 
 
 Hinson v. Partee, 
 
 V. Pickett, 
 
 Hinton V. Cole, . 
 
 Hitch V. Davis, . 
 
 V. Fenby, . 
 
 Hitchcock V. Harrington, 
 
 V. Skinner, 
 
 V. St. John, 
 
 Hite V. Hite, 
 
 Hitt T. Holliday, . 
 
 Hobart V. Frisbie, 
 
 . 243 
 . 153 
 . 269 
 . 84 
 . 157 
 . 114 
 84, 88, 90 
 . 240 
 . 84 
 . 128 
 . 233 
 . 208 
 . 192 
 . 51 
 . 251 
 . 286 
 . 233 
 . 364 
 241, 268 
 . 197 
 . 287 
 . 32 
 . 310 
 . 78 
 . 268 
 220, 222, 303 
 . 112 
 . 154 
 3 
 . 196 
 . 314 
 . 392 
 . 335 
 . 129 
 . 254 
 . 320 
 . 150 
 . 167 
 . 183 
 . 81 
 . 194 
 . 309 
 . 43 
 . 363 
 . 269 
 . 290 
 . 194 
 254, 255 
 . 20 
 . 269 
 . Ill 
 . 399 
 . 310 
 . 309 
 397, 417, 419 
 . 114 
 230, 233 
 . 241 
 . 103 
 . 113 
 . 303 
 
TABLE OF AMERICAN CASES. 
 
 xlix 
 
 Hobbsv. Parker, . 
 
 
 177 
 
 Howe, Matter of, . 
 
 123 
 
 Hockenbury v. Carlisle, 
 
 
 184 
 
 V. Russell, . 
 
 386 
 
 Hoddy V. Hoard, 
 
 
 167 
 
 Howell V. Ashmore, . 
 
 4 
 
 Hodges V. Mullikin, 
 
 V. N. E. Screw Compa 
 
 
 364 
 397 
 
 
 243 
 248 
 
 ny. 
 
 V. Baker, . 
 
 Hodgman v. Smith, 
 
 
 239 
 
 V. Ransom, 
 
 184 
 
 Hodgson T. Butts, 
 
 
 154 
 
 Howey v. Goings, 
 
 230 
 
 Hoen V. Simmons, 
 
 
 82 
 
 Hoxey v. Carey, 
 
 346 
 
 Hoes T. Vanhosen, 
 
 261 
 
 263 
 
 Hoxie V. Carr, ... 24 
 
 3,246 
 
 Hoffman V. Livingston, 
 
 
 196 
 
 Hoy V. Hansborongh, . 
 
 77 
 
 V. Smith, 
 
 
 376 
 
 V. McMurry, 
 
 321 
 
 Hoge V. Hoge, . 
 
 188 
 
 248 
 
 Hoye V. Brewer, 
 
 263 
 
 Holgate V. Palmer, 
 
 
 364 
 
 Hoyer v. Brewer, 
 
 261 
 
 Holden v. MoMakin, . 
 
 243 
 
 246 
 
 Hoyt V. Hammekin, 
 
 364 
 
 V. Pike, . 
 
 
 270 
 
 V. Hilton, . 
 
 280 
 
 Holliday v. Riordon, . 
 
 
 336 
 
 Hubbard v. Goodwin, . 
 
 42 
 
 Hollister v. Barkley, . 
 
 
 379 
 
 Hubble V. Perrin, 
 
 243 
 
 V. Burkley, . 
 
 
 196 
 
 Huchins v. Hope, 
 
 227 
 
 Holloway V. Moore, 
 
 
 20 
 
 Hudson V. Barrett, 
 
 241 
 
 HoUsclaw V. Johnson, . 
 
 
 335 
 
 V. Isbell, 
 
 112 
 
 Holman's Heirs T. Bank of Norfolk 
 
 310 
 
 V. Huger, 
 
 285 
 
 Holmes v. Hawes, 
 
 
 243 
 
 V. Kline, . 
 
 375 
 
 V. Holmes, 
 
 
 230 
 
 Huger V. Huger, . 
 
 285 
 
 V. Logan, 
 
 
 286 
 
 Huggins V. Hall, 
 
 315 
 
 Holridge v. Gillespie, . 
 
 
 113 
 
 Hughes V. Blake, . 
 
 . 21 
 
 Holt V. Bank of Augusta, 
 
 
 356 
 
 V. Edwards, . 114, 11 
 
 7, 153 
 
 Honore v. Colmesnil, . 
 
 
 243 
 
 V. Hughes, 
 
 287 
 
 Hood V. Bowman, 
 
 
 86 
 
 Hulbert v. McKay, 
 
 385 
 
 v. Fahnestook, 
 
 
 157 
 
 Hull V.Hull, 
 
 263 
 
 T. Inman, . 
 
 
 306 
 
 Hults V. Wright, . 
 
 106 
 
 V. N. Y. and N. H. Railroad, 
 
 197 
 
 Humbert v. Rector of Trin. Ch. 
 
 303 
 
 Hooper v. Royster, 
 
 
 319 
 
 Humes v. Shelly, . 
 
 121 
 
 V. Savage, 
 
 
 286 
 
 Humphrey v. Phinney, 
 
 233 
 
 Hoover V. Hoover, . 254 
 
 , 263 
 
 ,275 
 
 V. Foster, . 
 
 375 
 
 Hope V. Brinokerhoff, . 
 
 
 413 
 
 V. Leggett, . 
 
 187 
 
 Hopkins v. Forsyth, 
 
 
 268 
 
 Hundley y. Mount, 
 
 153 
 
 V. Garrard, 
 
 
 153 
 
 Hunley v. Hunley, 
 
 314 
 
 V. Hopkins, 
 
 
 317 
 
 Hunn V. Norton, . 
 
 390 
 
 V. Mazyck, 
 
 
 168 
 
 Hunt V. Bass, 
 
 . 61 
 
 V. McElderry, 
 
 
 351 
 
 V. Freeman, 
 
 . 85 
 
 V. McLaren, 
 
 
 157 
 
 V. Gookin, . . . 24 
 
 10, 344 
 
 Hopkirk v. Page, 
 
 
 317 
 
 V. Hamilton, 
 
 . 248 
 
 Hopper, Matter of, 
 
 
 297 
 
 V. Moore, . . . 1" 
 
 7, 183 
 
 Hord V. James, . 
 
 
 121 
 
 V. Rousmaniere, . . If 
 
 >8, 170 
 
 Horn V. Thomas, . 
 
 
 356 
 
 V. Smith, . 
 
 . 399 
 
 Home V. Lyeth, 
 
 
 40 
 
 V. Townsend, 
 
 . 272 
 
 Hon y V. Horry, 
 
 
 45 
 
 Hunter's Exr's v. Spotswood, 
 
 . 222 
 
 Horsburg v. Baker, 
 
 
 404 
 
 Will, . 
 
 . 248 
 
 Horton's App. 
 
 241 
 
 ,363 
 
 Hurd V. James, . 
 
 . 121 
 
 Hosack V, Rogers, 
 
 
 350 
 
 Hurler v. Robbins, 
 
 329 
 
 Hosford V. Mervin, 
 
 
 230 
 
 Hurtt V. Fisher, . 
 
 . 136 
 
 Hotchkiss V. Fortson, . 
 
 
 183 
 
 Hessey v. Dole, . 
 
 . 312 
 
 Hough V. Richardson, . 
 
 157 
 
 177 
 
 Huston V. Hamilton, . 
 
 32 
 
 Houghton V. Houghton, 
 
 
 184 
 
 V. McClarty's Heirs, . 
 
 . 312 
 
 House V. Falconer, 
 
 
 232 
 
 Hutoheson v. McNutt, . 
 
 . 82 
 
 Houston V. The Branch Bank, 
 
 
 268 
 
 Hutohins v. Hope, . . 1< 
 
 )6, 356 
 
 Hovey v. Holcomb, 
 
 
 111 
 
 V. Olcutt, 
 
 . 128 
 
 Howard v. Edgell, 
 
 
 79 
 
 Hutchinson v. Brown, . . r 
 
 n, 1S3 
 
 T. Henriques, 
 
 
 217 
 
 V. Hutchinson, , 
 
 . 33 
 
 V. Lee, . 
 
 
 211 
 
 Hutton V. Duey, . 
 
 . 45 
 
 Howe V. Harvey, 
 
 . 
 
 302 
 
 Hynes v. Stewart, 
 
 . 240 
 
TABLE OF AMERICAN CASES. 
 
 Iddings V. Bruen, . 
 
 Imlay v. Huntington, 
 
 IngersoU v. Kirby, 
 
 Ingliss V. The Trustees of the 
 
 Sailor's Snug Harbor, 
 Ingraham v. Kirkpatrick, 
 v. Baldwin, . 
 V. Regan, 
 Innes v. Evans, . 
 V. Lansing, . 
 In re Cooper, 
 Kennedy, 
 Pettit, . 
 Receiver of the City Bank of 
 
 Buffalo 
 
 Ins. Co. V. Union Canal Co. 
 In the matter of Isaac L. Kipp, . 
 Joshua Jones, 
 Stuyvesant, 
 Wadsworth, 
 the Petition of 
 Oakley, 
 Irvin v. Forbes, . 
 v. Smith, 
 V. Davidson, 
 v. Harris, . 
 V. Planters' Bank, 
 V. Tabb, 
 Irwin V. Ivers, 
 Ishara V. Bennington Iron Co 
 Izard V. Bodine, 
 
 . 61 
 
 40,42,46 
 
 . 310 
 
 31 
 183 
 303 
 337 
 243 
 283 
 283 
 297 
 
 259 
 77 
 23 
 37 
 37 
 58 
 
 61 
 
 239 
 
 153 
 
 210 
 
 59,61 
 
 , 167 
 
 95 
 
 33 
 
 , 153 
 
 , 386 
 
 Jackman v. Ringland, ... 33 
 Jacks V. Nioholls, . . . 363 
 
 Jackson v. Outright, 86, 304, 346, 347 
 V. Edwards, . . 232 
 
 V.Forrest, . . .310 
 V. Inabinit, ... 6 
 V. Jackson, . . 285, 286 
 
 V. Leek 153 
 
 T. Ligon, ... 88 
 
 V. Matsdorf, . 33, 101, 102 
 V. Moore, ... 28 
 V. Sharp, . . .153 
 
 Jacobs V. Locke 84 
 
 Jacques v. Methodist Church, . 46 
 James v. Bostwick, . . 240 
 
 V. Dixon, .... 210 
 v. Gibbs, .... 48 
 V. Hubbard, . . 270, 272 
 V. McKernon, . . 303, 305 
 
 V. Morey 154 
 
 V. State Bank, . 85 
 
 Jarvis v. Brooks, .... 243 
 
 V. Palmer, . . 334, 335, 339 
 
 Jencks v. Alexander, . . 33, 101 
 
 Jenison v. Graves, ... 32 
 
 V. Hapgood, . . .61 
 
 Jenkins v. Bodley, . . . 162 
 
 V. Eldredge, 
 
 62,248,305,379,397,399 
 
 Jenkins v. Jenkins, 
 
 V. Pye, . 
 
 v. Walter, 
 
 Jennings v. Davis, 
 
 V. Spring, 
 
 Jenning's Lessee v. Wood, 
 
 Jerome et al. v. Jerome, 
 
 V. Ross, 
 Jewett, Ex parte, . 
 Jobe T. O'Brien, . 
 John V. Benedict, 
 
 v. Jones, 
 Johns V. Erb, 
 
 V. Reardon, 
 Johnson v. Brown, 
 V. Candage, 
 V. Cushing, 
 V. Clendenin, 
 V. Gray, . 
 V. Johnson, 
 V. McGuider, 
 V. Noble, 
 T. Rankin, 
 T. Ronald, 
 Johnson's Ex'ors v. Clarke, . 
 T. Ketchum. 
 Johnston V Glancey, 
 T. Gray, 
 V. Van Dyke, 
 Joice V. Taylor, . 
 Jones Y. Boston Mill Corp. 
 Y. Bullock, . 
 V. Cowles, . 
 V. Creveling's Ex 
 Y. Dougherty, 
 Y. Evans, . 
 Y. Jones, 
 Y. Lynds, . 
 Y. Maffet, . 
 v. Mason, . 
 Matter of, . 
 Y. MoKee, . 
 Y. Myrick, . 
 V. Smith, . 
 v. Stookett, 
 V. Whitehead 
 Jopling Y. Dooley, 
 Jordan v. Hunt, 
 Josey V. Rogers, . 
 Joy V. Wirtz, 
 Judah V. Brandon, 
 Judd V. Seaver, . 
 Judge v. Wilkins, 
 Judson v. Gibons, 
 Justices of Pike Co, 
 
 West Point Plank R. 
 Juvenal v. Jackson, 
 Juzan Y. Toulmin, 
 
 Kane, Matter of, . 
 Kauffelt Y. Bower, 
 
 . 233 
 
 184, 186 
 
 57,60 
 
 55 
 
 346 
 
 112 
 
 23 
 
 210 
 
 285 
 
 270 
 
 84 
 
 269 
 
 . 376, 377 
 
 . 173, 313 
 
 114, 310, 315 
 
 . 113 
 
 . 360 
 
 . 112 
 
 184, 208, 251, 309 
 
 232 
 
 317 
 
 28 
 
 112 
 
 227 
 
 86 
 
 . 112 
 
 . 233 
 
 . 177 
 
 . 192 
 
 . 220, 364 
 
 . 303 
 
 i,. . 104 
 
 . 355 
 
 . 183 
 
 93, 95, 243 
 
 . 313 
 
 . 37 
 
 106, 363, 392 
 
 . 37 
 
 . 248 
 
 . 270 
 
 . 402 
 
 38, 287 
 
 . 208 
 
 . 179 
 
 . 55 
 
 17, 402, 403 
 
 . 323 
 
 . 258 
 
 20, 363 
 
 . 174 
 
 . 37 
 
 Griffin and 
 Company, 
 
 210 
 151 
 174, 177 
 
 287, 288 
 . 128 
 
TABLE OF AMERICAN CASES. 
 
 Kaufman v. Crawford, 
 
 . 285 
 
 Kirkman v. Vanlier, . 
 
 
 . 222 
 
 Kavanaugh v. Thompson, 
 
 . 96 
 
 Kirkpatrick V. McDonald, . 
 
 
 . 33 
 
 Keeler v. Eastman, 
 
 . 208 
 
 V. Rogers, 
 
 
 263 
 
 Keim v. Muhlenburgh, 
 
 . 223 
 
 v. White, . 
 
 
 . 339 
 
 V. Taylor, . 
 
 . 364 
 
 Kirksey v. Fike, . 
 
 
 . 192 
 
 Keisselbraok v. Livingston, 
 
 85, 106 
 
 Kisor V. Stancifer, 
 
 
 334 
 
 Keitli V. Trapier, 
 
 . 233 
 
 Kitchen v. Herring, 
 
 
 83 
 
 Keller v. Fisher, . 
 
 . 88 
 
 Kitredge v. Claremont Bank, 
 
 
 8 
 
 Kelley v. Paine, . 
 
 . 309 
 
 Kittera's Est. 
 
 257, 272 
 
 Kelly V. Greenleaf, 
 
 . 221 
 
 Kittredge v. Emerson, . 
 
 
 . 198 
 
 Kelsey v. Western, 
 
 261, 263 
 
 Knickerbocker v. Harris, 
 
 
 . 363 
 
 Kemp V. Cam ley. 
 
 . 241 
 
 Knight v. Bunn, . 
 
 
 . 168 
 
 Kendall v. Honey, 
 
 . 235 
 
 Knouff V. Thompson, . 33 
 
 ,101,150 
 
 V. The New England Car- 
 
 Knowles v. Lawton, . 
 
 
 . 272 
 
 pet Co. 
 
 61,272 
 
 Knox T. Campbell, 
 
 
 . 268 
 
 Kennedy v. Davis, 
 
 . 317 
 
 V. Smith, . 
 
 
 . 303 
 
 V. Kennedy, 
 
 
 KnuchoUs v. Lea, 
 
 
 . 177 
 
 176,241,243,303,310,316 
 
 Koonce V. Bryan, 
 
 
 . 43 
 
 V. Nedrow, . 
 
 . 95 
 
 Kramer v. Arthurs, 
 
 162, 246 
 
 Re, 
 
 . 283 
 
 Krider V. Lafferty, 
 
 152, 153 
 
 V. Ware, . 
 
 . 78 
 
 Krupp V. SchoU, . 
 
 
 . 180 
 
 Kenny v. Ddall, . 
 
 . 48 
 
 Kuhn V. Newman, 
 
 
 . 44 
 
 Kent V. Plummer, 
 
 . 153 
 
 Kunkle V. Wolfersberger, . 
 
 
 . Ill 
 
 Kerney v. Kerney, 
 
 . 167 
 
 Kuypers v. Reformed Dutch Church, 335 
 
 Kerns v. Chambers, . 
 
 . 269 
 
 Kyle V. Roberts, . 
 
 
 . 240 
 
 V. Swope, . 
 
 . 151, 153 
 
 Kyles V. Tait, . 
 
 
 . 128 
 
 Kerr v. Day, 
 
 . 141 
 
 Kyner v. Kyner, . 
 
 
 269 
 
 V. Gilmore, . 
 
 . Ill 
 
 
 
 
 V. Potter, 
 
 . 239 
 
 
 
 
 V. Steamboat Co. 
 
 . 221 
 
 Lacey, Ex parte, . 
 
 
 . 61 
 
 Ketohum v. Stout, 
 
 . 84 
 
 Lacy V. Wilson, . 
 
 
 . 152 
 
 Kettle V. Vandyck, 
 
 . 233 
 
 Laddv. Hawey, . 
 
 
 352 
 
 Kettletas v. Gardiner, . 
 
 . 283 
 
 Laidlaw v. Organ, 
 
 
 . 179 
 
 Key V. Griffin, . 
 
 . 97 
 
 Laight V. Morgan, 
 
 
 . 335 
 
 V. Lambert, . 
 
 . 312 
 
 Lainhart v. Reilly, 
 
 
 322 
 
 Kiddall V. Timball, 
 
 . 234 
 
 Lake V. Doud, 
 
 
 123 
 
 Kilpatrick v. Kilpatriok, 
 
 . 128 
 
 Lally V. Holland, 
 
 
 . 153 
 
 Kimberley v. Sells, 
 
 . 335 
 
 Lamborn v. The Covington Co 
 
 
 218 
 
 Kimmel v. McRight, . 
 
 33, 101 
 
 L'Amoreux v. Crosby, . 
 
 
 290 
 
 Kinoheloe v. Kinoheloe, 
 
 . 23 
 
 Lancaster v. Dolan, 
 
 
 46 
 
 King V. Baldwin, 
 
 . 268 
 
 Co. Bank v. Albright, 
 
 179 
 
 V. Bardeau, 
 
 90,91 
 
 Land Y. Cowan, . 
 
 
 309 
 
 V. Clark, . 
 
 . 389 
 
 Landes v. Brant, . 
 
 
 153 
 
 V. Cloud, 
 
 . 364 
 
 Lane v. Dickerson, 
 
 
 111 
 
 V. Donnelly, 
 
 . 37 
 
 V. Stebbins, . 19, 2 
 
 0,339 
 
 V. Gott, 
 
 . 136 
 
 T. Brown, . 
 
 38 
 
 6,387 
 
 V. Hamilton, 
 
 84, 85 
 
 V. Waring, . 
 
 
 246 
 
 V. Mitchell, 
 
 32,33 
 
 Langdon v. Astor's Executors, 
 
 
 114 
 
 V. Morford, 
 
 . 77 
 
 V. Goddard, . 
 
 
 8 
 
 V. Ray, . . 
 
 8 
 
 V. Paul, 
 
 
 114 
 
 V. Trice, 
 
 303 
 
 V. Roane's Adm'r. 
 
 
 228 
 
 V. WoodhuU, 
 
 . 65 
 
 Langstaff v. Rock, 
 
 
 268 
 
 Kinlook v. Hamlin, 
 
 . 240 
 
 Lanning v. Smith, 
 
 
 363 
 
 Kinnaman v. Henry, . 
 
 . 344 
 
 Lansing v. Eddy, 
 
 
 197 
 
 Kinsley v. Woodward, 
 
 . 95 
 
 V. Russell, 
 
 
 183 
 
 Kinsler v. Clark, . 
 
 208, 356 
 
 Lanum v. Steel, . 
 
 
 345 
 
 Kip, Matter of, . 
 
 . 23 
 
 Lapreese v. Tails, 
 
 
 376 
 
 Kirby v. Dalton, . 
 
 . 233 
 
 Larkin v. Mann, . 
 
 
 231 
 
 v. Harrison, 
 
 . 174 
 
 Larkins v. Biddle, . 168, 
 
 31 
 
 D, 346 
 
 V. Sohoonmaker, 
 
 . 243 
 
 V. Rhodes, 
 
 
 32,33 
 
 Kirk V. Hodgson, . 
 
 . 364 
 
 Larrabee v. Larrabee, . 
 
 18 
 
 S, 1S& 
 
Hi 
 
 TABLE OF AMERICAN CASES. 
 
 Larrowe v. Beam, 
 
 . 162 
 
 Lasalle v. Barnett, 
 
 . 151 
 
 Lathrop's Appeal, 
 
 . 269 
 
 Latimer v. Hanson, 
 
 . 37 
 
 Latting v. Latting, 
 
 . 309 
 
 Laughlin V. Ferguson, . 
 
 . 270 
 
 Laurens v. Lucas, 
 
 . 84 
 
 Lavender V. Lee, 
 
 . 168 
 
 Law T. Ford, 
 
 . 243 
 
 Lawrence v. Baubien, 
 
 . 168 
 
 T. Hammett, 
 
 . 238 
 
 T. Lawrence 
 
 363 
 
 Lawson v. Mason, 
 
 . 233 
 
 Lea's Ex'rs t. Eidson, 
 
 168, 363 
 
 Leacraft v. Demprey, 
 
 339 
 
 Leadenham v. Nicholsc 
 
 n, . . 130 
 
 Leavilt v. Steenbergen, 
 
 . 365 
 
 T. Wooster, 
 
 . 263 
 
 Leaycraft v. Hedden, 
 
 . 46 
 
 Ledyard v. Chapin, 
 
 110 
 
 T. Johnston, 
 
 . 250 
 
 Lee v. Baird, 
 
 . 197 
 
 V. Beatty, 
 
 . 376 
 
 T. Pindle, 
 
 . 392 
 
 T. Randolph, 
 
 . 37 
 
 Lee's Adm'r v. Reed. 
 
 . 227 
 
 Leeby v. Wolfe, . 
 
 . 153 
 
 Leeds T. Marine Insui 
 
 ance Com- 
 
 pany of Alexandria, 
 
 20 
 
 Lefevre v. Laraway, . 
 
 . 61 
 
 Le Fort v. Delafleld, 
 
 . 335 
 
 Legare v. Ashe, . 
 
 . 248 
 
 Leggett V. Dubois, 
 
 33, 42 
 
 V. Perkins, 
 
 46 
 
 T. Postley, 
 
 19, 20 
 
 Leiby t. Wolfe, . 
 
 . 153 
 
 Leigh T. Crump, . 
 
 77,84 
 
 Leikensdoifer v. Delph 
 
 y, . . 168 
 
 Leiper's Ex'rs v. Irvin 
 
 B, . . 141 
 
 Leislnring v. Black, 
 
 . 184 
 
 Lemaster v. Burckhart 
 
 . 304 
 
 Lenox v. Notrebe, 51, 
 
 233,281,352,363 
 
 Le Roy v. Servis, 
 
 . 334 
 
 V. Veeder, 
 
 . 335 
 
 Lessee of Huston v. H 
 
 amilton, . 32 
 
 Findley v. R 
 
 iddle, . 40 
 
 Lessig V. Langton, 
 
 . 356 
 
 Letcher v. Letcher, 
 
 33 
 
 T. Letcher's H 
 
 eirs, . . 32 
 
 V. Sohroeder, 
 
 54, 312 
 
 Lever v. Lever, . 
 
 . 221 
 
 Levert v. Redwood, 
 
 . 379 
 
 Levinz t. Mills, 
 
 . 154 
 
 Lewis V. Adams,. 
 
 45 
 
 v. Bacon, . 
 
 . 255 
 
 V. Baird, . 
 
 . 153, 154 
 
 V. Darling, 
 
 . 263 
 
 V. Leak, . 
 
 . 356 
 
 V, Lewis, . 
 
 97 
 
 V. McLemore, 
 
 . 177 
 
 V. Mew, . 
 
 . 157 
 
 Lewis V. Moorman, . . . 233 
 
 V. Robards, . . .112 
 
 Light T. Light, .... 96 
 
 Lightner v. Mooney, . .153, 154 
 
 Ligon's Adm'r v. Rogers, . . 168 
 
 Lillard v. Turner, ... 46 
 
 Lilly V. Kroeson, .... 227 
 
 Lincoln v. Rutland, &c. R. R. Co. 202 
 
 Lindsay v. Etheridge, . . .196 
 
 \. Harrison, . . . 44 
 
 V. Pleasants, . 33, 38 
 
 Lindsey v. Rankin, . . .152 
 
 Lingan v. Henderson, 23, 303, 309, 364 
 
 Lining v. Geddes, . . 210 
 
 Linker v. Smith, . . . .180 
 
 Lippincott v. Stokes, . . .100 
 
 Littell V. Melver, . . 21 
 
 Little V. Marsh, . . 196 
 
 V. Price, . . .197 
 
 Littlefield v. Smith, . . 53 
 
 Livermore v. Aldrich, ... 33 
 
 Livingston v. Clarkson, . . 231 
 
 T. Harris, . . .334 
 
 V. Hubbs, . . .417 
 
 v. Livingston, 102, 196,200 
 
 210, 263, 274, 275, 335 
 
 Matter of, 
 V. Newkirk, 
 V. Reynolds, 
 V. Story, 
 V. Tompkins, 
 Lloyd V. Barr, 
 
 V. Brewster, 
 V. Carter, . 
 V. Hart, 
 Lookard T. Lockard 
 Locke V. Palmer, 
 Lookwood V. Lockwood, 
 V. Stockholm, 
 V. Thome, . 
 Lodwick V. Johnson, 
 Logan V. Bond, . 
 V. McGinnis, 
 V. Simmons, 
 Lomax v. Pendleton, 
 Long V. Long, 
 
 V. Majestre, 
 V. Noreom, . 
 V. Oliver, . 
 Longworth v. Taylor, 
 Loomer T. Wheelwright, 
 Loomis's Estate, . 
 Loomis V. Brown, 
 Lord T. Lowry, . 
 V. Staples, . 
 Lorillard v. Coster, 
 Loudon V. Warfield, 
 Louvalle v. Menard, 
 Louvell v. Minott, 
 Lovett v. Steam, &c. Assoc, 
 Lowe V. Lowry, . 
 
 293, 296 
 
 263, 274 
 . 208 
 
 126, 335 
 
 107, 334 
 . 269 
 . 309 
 . 33 
 . 285 
 197, 331, 344 
 
 112, 123 
 . 121 
 . 263 
 . 227 
 . 272 
 
 244, 303 
 . 80 
 . 180 
 . 55 
 . 183 
 
 222, 316 
 . 286 
 . 196 
 . 84 
 . 173 
 . 263 
 . 196 
 . 28 
 . 270 
 43, 136 
 208 
 . 233 
 . 55 
 . 363 
 199 
 
TABLE OF AMERICAN CASES. 
 
 Hii 
 
 Lowndes V. Chisolm, . 118, 
 
 170, 
 
 269 
 
 McDermott v. Blois, . 
 
 
 335 
 
 Lowry v. Cox, . 
 
 
 191 
 
 McDonald v. Black, . 
 
 
 268 
 
 V. Farmers' Bank, . 
 
 
 251 
 
 V. Lawless, . 
 
 
 261 
 
 Lozier's Executors Y. Van Saun's 
 
 
 V. McDonald, 
 
 
 308 
 
 Administrators, 
 
 
 203 
 
 V. McLead, 
 
 
 363 
 
 Lucas V. Atwood, 
 
 
 243 
 
 V. McLeod, 
 
 
 112 
 
 V. Bank of Darien, 
 
 
 
 MoDougald v. Dougherty, 
 
 
 
 20, 197, 
 
 312 
 
 363 
 
 346, 379, 383, 
 
 386 
 
 T. Hickman, 
 
 
 360 
 
 V. Maddox, 
 
 
 19 
 
 V. Lockhart, 
 
 
 31 
 
 V. Miln, . 
 
 
 389 
 
 Luckett V. White, 
 
 
 310 
 
 McDowell V. Bank of Wilmi 
 
 ngton 
 
 
 Ludlow V. Cooper, 
 
 
 239 
 
 and Brandy wine, 21 
 
 269 
 
 V. Simond, 
 
 220 
 
 221 
 
 V. Caldwell, 
 
 
 286 
 
 Lunsford v. Bostion, 
 
 
 379 
 
 V. Graham, . 
 
 
 303 
 
 Lupier Co. v. Hart, 
 
 
 199 
 
 V. Peyton, . 
 
 
 248 
 
 Lupton T. Janney, 
 
 
 272 
 
 McElfresh v. Schley, 
 
 92, 94, 95 
 
 V. Lupton, 
 
 103 
 
 364 
 
 McElhatton v. Howell, 
 
 
 48 
 
 Lyman v. Ins. Co. 
 
 . 
 
 168 
 
 McElwee v. Sutton, 
 
 
 389 
 
 Lynch V. Cox, . 
 
 , 
 
 33 
 
 McFarland V. McDowell, 
 
 
 196 
 
 V. Johnson, 
 
 
 310 
 
 McFertan v. Taylor, . 
 
 
 85 
 
 V. Sumrall, 
 
 , 
 
 20 
 
 McGammon v. Petit, . 
 
 , 
 
 33 
 
 Lyne v. Guardian, 
 
 , 
 
 248 
 
 McGehee v. Jones, 
 
 
 346 
 
 Lynn v. Boiling, . 
 
 , 
 
 363 
 
 McGinnis's App. . 
 
 
 272 
 
 Lyon V. Richmond, 
 
 , 
 
 168 
 
 McGinnis v. McGinnis, 
 
 
 92 
 
 V. Sanders, . 
 
 . 
 
 168 
 
 McGowin v. Remington, 
 
 83, 91 
 
 T. Tallmadge, 
 
 , 
 
 346 
 
 McGrew v. Tombeckbee Bank, . 
 
 197 
 
 Lyons v. Miller, . . 20, 21 
 
 ,363 
 
 MoGuire v. McGowen, 
 
 32, 33 
 
 Lyrely v. Wheeler, 
 
 
 196 
 
 V. O'Halloran, 
 
 
 192 
 
 Lytle V. Pope, 
 
 157 
 
 ,269 
 
 Mcintosh V. Alexander, 
 Mclntyre v. Hughes, . 
 
 309 
 
 ,310 
 78 
 
 McArtee v. Engart, 
 
 
 174 
 
 V. Trustees of 
 
 Jnion 
 
 
 McAuley v. Wilson, 
 
 
 69 
 
 College, . 303, 309 
 
 344 
 
 McBrayer v. Hardin, . 
 
 
 208 
 
 Mclntyre School v. Zan. 
 
 Canal 
 
 
 McCampbell v. McCatnpbell, 
 
 263 
 
 ,275 
 
 and M. C. 
 
 
 37 
 
 MoCants T. Bee, . 
 
 
 61 
 
 McJilton V. Love, 
 
 
 198 
 
 McCauly v. McFarlane, 
 
 
 244 
 
 McKay v. Carrington, . 
 
 
 88 
 
 McClean, Matter of. 
 
 
 292 
 
 p V. Green, 
 
 
 258 
 
 McCliotio V. Manns, . 
 
 
 230 
 
 McKeen T. Field, 
 
 
 345 
 
 McClung V. Beirne, 
 
 
 270 
 
 McKelvy T. Truby, 
 
 
 150 
 
 McClurg V. Fryer, 
 
 
 268 
 
 McKennan v. Phillips, 
 
 '37, 45 
 
 McCollough V. Irvine, . 
 
 
 208 
 
 McKim V. Flandy, 
 
 
 391 
 
 MoConnell v. McConnell, . 
 
 309 
 
 ,312 
 
 V. Mason, 
 
 
 399 
 
 V. Holobush, 
 
 
 118 
 
 y. Odom, 
 
 
 220 
 
 T. Read, . 
 
 
 153 
 
 V. White Hall Co. 1 
 
 07, 344 
 
 ,347 
 
 T. Scott, 
 
 
 270 
 
 McKinley v. Irvine, 
 
 , 
 
 317 
 
 McCord T. Ochiltree, . 
 
 
 65 
 
 McKinney v. Pierce, . 
 
 385 
 
 ,386 
 
 McCormaok v. Obannon, 
 
 
 269 
 
 McKinstry v. Conly, . 
 
 . 
 
 112 
 
 McCormick v. Malin, . 
 
 
 183 
 
 McEissick v. Pickle, . 
 
 
 68 
 
 McCosker v. Brady, 
 
 
 309 
 
 McLaid v. Linnville, . 
 
 
 363 
 
 McCoy V. Rhodes, 
 
 
 363 
 
 McLaren v. Stainton, . 
 
 
 198 
 
 McCumber v. Gillman, 
 
 
 121 
 
 V. Steap, 
 
 
 220 
 
 McCrackan v. Valentine, 
 
 
 382 
 
 McLaughlin v. Shepherd, 
 
 . 
 
 111 
 
 McCrae v. Hollis, 
 
 
 188 
 
 McLaurin v. Wright, . 
 
 
 112 
 
 McCrea v. Purmort, 
 
 
 303 
 
 McLellan v. Longfellow, 
 
 
 7 
 
 McCrocklin v. McCrocklin, . 
 
 
 45 
 
 MoLeod V. Drummond, 
 
 
 251 
 
 McCue V. Johnston, 
 
 
 86 
 
 MoLin V. McNamara, . 
 
 
 222 
 
 McCulloh V. Dashiel, . 
 
 
 243 
 
 McLoud V. Roberts, 
 
 
 263 
 
 McCuUough V. Somerville, . 
 
 
 241 
 
 McMahon v. Fawcett, . 
 
 
 269 
 
 V. Wilson, 
 
 
 153 
 
 McMaken v. McMaken, 
 
 
 314 
 
 McDaniel v. Bell, 
 
 
 192 
 
 McMechan v. Griffing, . 
 
 
 153 
 
 V. Moorman, 
 
 
 183 
 
 McMorris v. Crawford, 
 
 
 81 
 
Hv 
 
 TABLE OP AMERICAN CASES. 
 
 Parker, 
 
 MoMurtrie v. Bennett, 
 MoNajr v. Bagland et al. 
 McNair's App. . 
 MoNamara v. Dwyer, . 
 McNaughten V. Partridge, 
 McNear v. Bailey, 
 McNeil V. Magee, 
 McNitt V. Logan, . 
 McPlierson v. Talbott, . 
 McQueen v. McQueen, 
 MoRae v. MoKenzie, . 
 McRaven v. McGuire, . 
 MoWhorter v. McMahan, 
 McWiiliams v. Herndon, 
 Maccubin v. Cromwell, 
 Maolin v. Smith, . 
 Macon V. Sheppard, 
 Macon, &c. R. R. Co. v. 
 Mactier v. Lawrence, 
 Madeira v. Hopkins, 
 Maddox v. Dent, . 
 Magee v. Magee, . 
 Magniac v. Thomson, . 
 Magwood V. Johnston, 
 Mahone v. Central Bank, 
 Mahorner v. Harrison 
 Malin v. Malin, . 
 Malins v. Brown, 
 Mallow V. Hinde, 
 Manchester v. Dey, 
 Mandeville v. Riggs, 
 Manes v. Durant, 
 Mange v. Guenat, 
 Mann v. Betterly, 
 
 V. Butler, 
 
 T. Higgins, 
 Manners v. Manners, 
 Manning v. Drake, 
 
 V. Laboree, 
 V. Manning, 
 Mansell's Estate, . 
 Mantz V. Buchanan, 
 Many v. Beekman Iron Co. 
 Marberger v. Pott, 
 Marbury v. Madison, 
 March v. Berrier, 
 
 y. Davison, 
 
 T. Ludlum, 
 
 V. Thompson, 
 Margaret v. Connestoga, 
 Marine Ins. Co. v. Hodgson, 
 Marquand v. N. Y. Man. Co, 
 Marriott v. Handy, 
 
 V. Sam Badger. 
 Marsh V. Hague, . 
 
 V. Reed, . 
 
 V. Turner, 
 
 T. Wheeler, 
 Marshall v. Billingsly, 
 V. Means, ' . 
 T. Riley, 
 
 303, 
 
 77, 82, 86 
 
 . 55 
 
 . 251 
 
 . 361 
 
 . 240 
 
 . 192 
 
 . 192 
 
 . 152 
 
 . 269 
 
 . 96 
 
 . 241 
 
 . 153 
 
 . 84 
 
 . 346 
 
 28, 37, 58 
 
 . 286 
 
 151 
 
 196 
 
 194, 259 
 
 . 77 
 
 . 350 
 
 . 33 
 
 . 303 
 
 . 46 
 
 196, 356 
 
 . 33 
 
 33, 317 
 
 . 86 
 
 . 323 
 
 . 196 
 
 321 
 
 180 
 
 12 
 
 183 
 
 321 
 
 243 
 
 230 
 
 20 
 
 233 
 
 61 
 
 261, 274 
 
 . 233 
 
 1,310,314 
 
 268 
 
 285 
 
 19,20 
 
 6 
 
 400 
 
 400 
 
 197 
 
 242 
 
 110 
 
 92, 96, 97 
 
 103, 258 
 
 . 202 
 
 . 128 
 
 . 136 
 
 . 183 
 
 309, 310 
 
 3 
 
 Marshall v. Stephens, . 
 
 . 46 
 
 Marston v. Brackett, . 
 
 . 376 
 
 Marten v. Van Schaick, 
 
 . 243 
 
 Martin v. Densford, 
 
 . 258 
 
 v. Dryden, 
 
 . 321 
 
 V. Greer, 
 
 28, 33 
 
 V. Martin, 
 
 . 103, 310 
 
 V. McBryde, . 
 
 . 303 
 
 V. Sale, . 
 
 . 153 
 
 Marvin v. Elwood, 
 
 . 204, 206 
 
 V. Jackson, 
 
 115, 157 
 
 V. Trumbull, . 
 
 . 246 
 
 Maryl. &c. Co. v. Wingert, 
 
 . 363 
 
 Mason v. Begg, . 
 
 . 257 
 
 V. Connell, 
 
 241, 242 
 
 V. Man, . 
 
 . 221 
 
 V. Martin, . 
 
 . 363 
 
 Matter of, . 
 
 . 290 
 
 V. Peck, . 
 
 . 21 
 
 V. Williams, 
 
 . 183 
 
 Mason's App. 
 
 . 274 
 
 Est. 
 
 . 261 
 
 Massey v. Mcllwain, . 
 
 . 86 
 
 Masters v. Prentiss, 
 
 . 13 
 
 Mathews v. Dragaud, . 
 
 . 59 
 
 V. Ward, 
 
 . 50 
 
 Mathewson v. Mathewson, 
 
 . 343 
 
 Matter of Andrews, 
 
 . 281 
 
 Arnhout, 
 
 . 290 
 
 Babcook, 
 
 . 268 
 
 Bostwick, 
 
 . 287 
 
 Burr, . 
 
 . 292 
 
 De Peyster, . 
 
 . 62 
 
 Drayton, 
 
 . 296 
 
 Fowler, 
 
 . 293 
 
 Ganse, . 
 
 . 293 
 
 Hanks, . 
 
 . 292 
 
 Heeney, 
 
 . 297 
 
 Heller, . 
 
 . 296 
 
 Hemiup, 
 
 261, 385 
 
 Hopper, 
 
 . 297 
 
 Kane, . 
 
 287, 288 
 
 Livingston, . 
 
 29.3, 296 
 
 Mason, . 
 
 . 290 
 
 McClean, . 
 
 292 
 
 Morgan, 
 
 290 
 
 Nicoll, . 
 
 281 
 
 Perkins, 
 
 . 293 
 
 Pettit, . 
 
 293 
 
 Roberts, 
 
 . 293 
 
 Salisbury, 
 
 . 296 
 
 Skinner, 
 
 . 231 
 
 Tracy, . 
 
 . 292 
 
 Wendell, . 29 
 
 0, 291, 292 
 
 Whitenack, . 
 
 . 292 
 
 Woolstonecraft, 
 
 . 280 
 
 Matthews v. Aiken, . 
 
 . 269 
 
 V. Dragaud,. 
 
 61 
 
 V. Matthews, 
 
 . 230 
 
 Matthewson v. Clarke, 
 
 . 242 
 
 Mattocks T. Tremain, . 
 
 . 360 
 
TABLE OF AMERICAN CASES. 
 
 Iv 
 
 Maude V. Rodes, 
 
 
 243 
 
 Miller v. Chetwood, . 
 
 . 85 
 
 Maulden v. Armistead, 
 
 . 83 
 
 V. Gotten, . 
 
 176, 303 
 
 Maury v. Lewis, 
 
 . 379 
 
 V. English, 
 
 . 210 
 
 Maxwell v. Kennedy, . 
 
 . 303 
 
 V. Fenton, 
 
 268, 402 
 
 V. Maxwell, . 
 
 . 230 
 
 V.Ford, . 
 
 . 334 
 
 V. Pittenger, . 
 
 84, 183 
 
 V. Furse, . 
 
 . 304 
 
 v. Wielden, . 
 
 . 28 
 
 V. Harwell, 
 
 263, 275 
 
 May V. Armstrong, 
 
 17, 403 
 
 V. Henderson, . 
 
 . 106 
 
 V. Eastin, . 
 
 111, 389 
 
 V. McCan, 
 
 194, 364 
 
 V. Smith, . 
 
 . 309 
 
 V. Meetch, 
 
 . 30 
 
 T. Williams, 
 
 . 345 
 
 V. Pearce, 
 
 . 248 
 
 Mayburry v. Brian, 
 
 . 233 
 
 V. Saunders, . 
 
 336, 344 
 
 Mayer v. Galluchat, . 
 
 . 344 
 
 V. Schaokelford, 
 
 . 152 
 
 Mayhara v. Coombs, . 
 
 . 153 
 
 V. Wells, 
 
 . 167 
 
 Mayne v. Baldwin, 
 
 . 283 
 
 V. Whittier, 
 
 . 386 
 
 V. Griswold, . 
 
 303, 309 
 
 V. Womack's Admr's, 
 
 . 227 
 
 Mayo v. Alooek, 
 
 . 108 
 
 Miller's Est. 
 
 . 285 
 
 T. Judah, . 
 
 . 107 
 
 Mills V. Denis, . 
 
 121, 285 
 
 V. Murchie, 
 
 . 303 
 
 V. Gore, 
 
 . 363 
 
 Mayor of Georgetown v. Alexan- 
 
 Minns v. Macon, . 
 
 . 128 
 
 dria Canal Co. . 
 
 . 211 
 
 Minturn V. Seymour, . 
 
 77, 196 
 
 Meacham v. Sternes, . 
 
 . 62 
 
 Mitchell V. Bunch, 
 
 360, 361 
 
 Mead v. Merritt, . 
 
 . 198 
 
 V. Lenox, 
 
 . 346 
 
 Meads v. Langdon's Heirs, . 
 
 . 248 
 
 V. Manufacturing Co 
 
 . 220 
 
 Mechanics' Bank v. Levy, 
 
 
 V. Mitchell, . 
 
 261, 274 
 
 10, 305, 
 
 308, 344 
 
 V. Oakley, 
 
 . 194 
 
 V. Lynn, . 
 
 . 308 
 
 V. Smith, 
 
 . 19 
 
 V. Seton, . 
 
 
 312 
 
 V. Sproul, 
 
 . 269 
 
 Medlook v. Cogburn, . 
 
 
 292 
 
 V. Wilson, . 
 
 . 88 
 
 Meeker v. Meeker, 
 
 
 77 
 
 V. Winslow, . 
 
 . 54 
 
 Melchor v. Burger, 
 
 
 93 
 
 Mix V. Hotchkiss, 
 
 121, 302 
 
 Melick V. Darling, 
 
 
 93 
 
 Moale V. Buchanan, 
 
 85,86 
 
 Mellish V. Robertson, . 
 
 
 168 
 
 Mobile, &c. R. R. Co. V. Talman, . 310 
 
 Mercer v. Stark, . 
 
 
 29,33 
 
 Mock V. Cundiff, .. 
 
 . 197 
 
 Merchants' Bank v. Davis, . 
 
 
 20 
 
 Moderwell v. MuUison, 
 
 . 246 
 
 Merriam v. Barton, 
 
 
 113 
 
 Moffitt V. MacDonald, . 
 
 . 33 
 
 Merrill v. Bartlett, 
 
 
 268 
 
 Mohawk Bridge Co. v. Utica and 
 
 Merritt v. Lambert, 
 
 
 184 
 
 Schenectady Railroad Co. 
 
 . 211 
 
 Matter of, . 
 
 
 194 
 
 Mollan V. Griffith, 
 
 263, 275 
 
 Meriwether v. Bird, 
 
 
 223 
 
 Molyneaux v. Collier, . 
 
 . 34C 
 
 Merriweather v. Herran, 
 
 
 54 
 
 Monell V. Monell, 
 
 57,58 
 
 Messervey v. Barelli, . 
 
 
 320 
 
 Monk V. Harper, . 
 
 . 226 
 
 Methodist Church v. Mayor, 
 
 
 197 
 
 Monro v. Allaire, 
 
 61 
 
 V. Remington, 
 
 67 
 
 Montague v. Lobdell, . 
 
 . 317 
 
 V. Wood, . 
 
 
 33 
 
 V. Turpin, . 
 
 . 319 
 
 Epis. Church V. Jacques, 
 
 Montgomery v. Milliken, 
 
 . 136 
 
 8,32 
 
 , 33, 308 
 
 Moody y. Payne, . 
 
 . 242 
 
 Miami Co. v. U. S. Bank, . 
 
 . 272 
 
 Mooers v. White, 
 
 . 227 
 
 Michan v. Wyatt, . 309, 
 
 313,346 
 
 Moor v. Story, . 
 
 . 243 
 
 Michoud V. Girod, 
 
 . 61 
 
 Moore v. Appleton, . 
 
 . 268 
 
 Middleton v. Middleton, 
 
 . 274 
 
 V. Anderson, 
 
 . 312 
 
 Milburn v. Guyther, 
 
 . 233 
 
 V. Auditor, 
 
 . 153 
 
 Miles V. Bacon, . 
 
 . 61 
 
 V. Bray, . 
 
 . 269 
 
 V. Miles, . 
 
 . 363 
 
 V. Cable, . 
 
 115,118 
 
 V. Smith, . 
 
 . 315 
 
 V. Gamble, 
 
 . 197 
 
 V. Wister, . 
 
 . 103 
 
 V. Greene, 
 
 . 303 
 
 Millv. Argall, . 
 
 . 241 
 
 V. Hilton, . 
 
 . 196 
 
 Milledge v. Lamar, 
 
 . 233 
 
 V. Hylton, . 
 
 . 363 
 
 Millegan v. Milledge, . 
 
 . 322 
 
 V, Holcombe, . 
 
 . 128 
 
 Miller v. Andress, 
 
 . 240 
 
 V. Isley, . 
 
 . 269 
 
 V. Beverlys, 
 
 
 55, 62 1 
 
 V. Money, 
 
 . 48 
 
Ivi 
 
 TABLE OF AMERICAN CASES. 
 
 Moore T. Moore, . 
 
 . 269, 
 
 285 
 
 Mussleman T. Eshleman, . 
 
 
 61 
 
 V. Small, . 
 
 
 86 
 
 Myers v. Hay, 
 
 
 107 
 
 Morehouse V. Cotheal, . 
 
 
 208 
 
 T. Myers, . 
 
 57 
 
 287 
 
 Moreland V. Lemasters 
 
 
 86 
 
 V. Wade, . 
 
 
 286 
 
 Moreton v. Harrison, 
 
 
 340 
 
 T.White, . 
 
 
 114 
 
 Morey v. Forsyth, 
 
 
 317 
 
 
 
 
 Morgan, Matter of. 
 
 
 290 
 
 Nace v. Bryser, . 
 
 . 
 
 183 
 
 V. Morgan, 
 
 .' 115 
 
 415 
 
 N. A. Coal Co. v. Dyett, 
 
 
 46 
 
 V. Scott, . 
 
 
 88 
 
 Naglee v. IngersoU, 
 
 
 136 
 
 V. Smith, 
 
 . 199 
 
 403 
 
 Nail V. Mobley, . 
 
 
 310 
 
 Morning Star v. Selby, 
 
 
 248 
 
 Nailer v. Stanley, 
 
 , 
 
 270 
 
 Morrell v. Dickey, 
 
 
 282 
 
 Napier v. Catren, 
 
 
 240 
 
 Morris and Essex R. R. 
 
 Co. V. Blair, 
 
 363 
 
 V. Elam, . 
 
 
 179 
 
 Morris T. Dillard, 
 
 
 30v! 
 
 Nash V. Smith, . 
 
 205 
 
 334 
 
 T. Nixon, . 
 
 . Ill 
 
 363 
 
 Nathans v. Morris, 
 
 
 62 
 
 V. Olwine, 
 
 
 272 
 
 Naylor v. Naylor, 
 
 
 290 
 
 T. Parker, 
 
 308 
 
 344 
 
 N. E. Bank v. Lewis, . 
 
 . 
 
 363 
 
 Morrison T. Beckwortb, 
 
 
 270 
 
 Neale v. Hagthrop, 
 
 21 
 
 308 
 
 V. Hart, 
 
 
 304 
 
 NefF V. Miller, . 
 
 
 272 
 
 V. Kurtz, 
 
 . 243 
 
 272 
 
 Neff's App. 
 
 
 272 
 
 Morrison's Adm'r v. Te 
 
 nn. Ins. Co. 
 
 270 
 
 NeJU V. Keise, . 
 
 , 
 
 33 
 
 Morrisson T. McLeod, . 
 
 . 84 
 
 183 
 
 Neilson v. McDonald, . 
 
 
 364 
 
 T. Taylor, 
 
 
 269 
 
 Neimcewicz v. Gahn, . 
 
 173 
 
 269 
 
 Morrow V. Brenizer, 
 
 136,138 
 
 139 
 
 Nelson v. Boyce, . 
 
 . 
 
 162 
 
 T. Riley, 
 
 
 240 
 
 V. Carrington, . 
 
 
 121 
 
 Morss T. Elmendorf, . 
 
 
 85 
 
 V. Clay, . 
 
 , 
 
 268 
 
 Moreton v. Harrison, . 
 
 
 128 
 
 V. Dunn, . . 272 
 
 402 
 
 403 
 
 Morton V. Adams, 
 
 
 61 
 
 V. Harris, 
 
 . 
 
 325 
 
 V. Barrett, 
 
 
 61 
 
 T. Lee, . 
 
 , 
 
 285 
 
 Mosby T. Taylor, . 
 
 
 107 
 
 V. Owen, 
 
 
 196 
 
 T. Wall, . 
 
 85 
 
 168 
 
 V. Robinson, . 
 
 . 
 
 356 
 
 Moser v. Libenguth, 
 
 
 173 
 
 V. Rockwell, . 
 
 , 
 
 197 
 
 Moses V. Murgatroyd, 
 
 '. 31 
 
 252 
 
 Neptune Ins. Co. v. Dorsey, 
 
 . 
 
 270 
 
 Mosher v. Mosher, 
 
 
 ,233 
 
 Nesbit V. Moore, . 
 
 , 
 
 81 
 
 Moss V. Hanson, . 
 
 
 84 
 
 Neves v. Scott, ... 
 
 40,42 
 
 Motley T. Jones, . 
 
 
 239 
 
 Neville V. Demeritt, . 
 
 , 
 
 364 
 
 Mott V. Harrington, 
 
 
 184 
 
 V. Merchants' Ins. Co. 
 
 , 
 
 83 
 
 Mounoe v. Byers, . 
 
 . 346 
 
 347 
 
 Nevitt V. Gillespie, 
 
 199 
 
 208 
 
 Movan v. Hays, . 
 
 
 28 
 
 Newcomb v. St. Peter's Church, . 
 
 65 
 
 Mowatt V. Carrow, 
 
 
 400 
 
 Newland v. Rogers, . 
 
 , 
 
 310 
 
 Muir V. Leitcb, . 
 
 
 243 
 
 Newlin v. Freeman, . 
 
 
 46 
 
 V. Schenok, . 
 
 
 53 
 
 New London Bank v. Lee, . 
 
 312 
 
 321 
 
 V. Trustees, . 
 
 . 248 
 
 303 
 
 Newman v. Bean, 
 
 , 
 
 239 
 
 T. Cross, 
 
 
 128 
 
 V. Chapman, 
 
 , 
 
 157 
 
 Mulock V. Mulock, 
 
 
 309 
 
 V.Kendall, . 
 
 . 
 
 315 
 
 MuUoy T. Young, . 
 
 
 363 
 
 Newport v. Cook, 
 
 286 
 
 287 
 
 Mulvany v. Kennedy, . 
 
 . , 
 
 210 
 
 Newson v. Bufferlow, . 
 
 168 
 
 ,172 
 
 Mumford v. Murray, 
 
 5 
 
 7,61 
 
 Newton v. Swazey, 
 
 
 86 
 
 V. NichoU, 
 
 
 268 
 
 N. H. Savings Bank v. Colcord. . 
 
 268 
 
 Mundorff T. Kilbourn, 
 
 
 80 
 
 Nicholl v. Mumford, . 
 
 
 268 
 
 Munro v. Allaire, 
 
 
 61 
 
 NicoU, Matter of, 
 
 
 281 
 
 Murdock's Case, . 
 
 
 61 
 
 V. Trustees, 
 
 199, 392 
 
 Murphy V. Clark, 
 
 
 310 
 
 Niles V. Anderson, 
 
 . 
 
 336 
 
 T. Hubert, 
 
 
 28 
 
 Nimms v. Stewart, 
 
 
 303 
 
 V- Trigg, 
 
 
 112 
 
 Nixon V. Richardson, . 
 
 
 361 
 
 Murray v. Ballou, 
 
 
 157 
 
 Noble V. Wilson, 
 
 
 196 
 
 T. Blatchford, 
 
 .' 363 
 
 400 
 
 Nodine v. Greenfield, . 
 
 
 316 
 
 T. Lylburn, 
 
 . 144 
 
 157 
 
 Norcross v. Widgery, . 
 
 
 153 
 
 V. Murray, 
 
 
 243 
 
 Norment v. Wilson, . 
 
 
 231 
 
 V. Toland, 
 
 
 228 
 
 Norris v. Clymer, 
 
 
 285 
 
 Murrill v. Neill, . 
 
 . 
 
 243 
 
 v. Hill, . 
 
 , 
 
 268 
 
TABLE OF AMERICAN CASES. 
 
 Ivii 
 
 Norris v. Vernon, 
 
 , 
 
 241 
 
 Owings v. Hull, . 
 
 
 
 303 
 
 North American Coal Co. v 
 
 . Dyett, 
 
 346 
 
 V. Myers, 
 
 
 157 
 
 Northampton Paper Mills v 
 
 Ames, 
 
 114 
 
 Owing's Case, 
 
 
 291 
 
 Northrop v. Hatch, 
 
 • 3,5, 
 
 334 
 
 
 
 
 Norton v. Coons, 
 
 
 269 
 
 Packer v. Sunbury, 
 
 
 356 
 
 V. Stone, . 
 
 , 
 
 32 
 
 Page V.Page, . .21, 
 
 32,33 
 
 102 
 
 V. Warner, 
 
 , , 
 
 10 
 
 Pain V. Packard, 
 
 
 268 
 
 Norwich, &o. R. R. Co. v. 
 
 Storey, 
 
 20 
 
 Fallen v. Agricultural Bank, 
 
 
 272 
 
 Norwich v. Hubbard, . 
 
 , 
 
 114 
 
 ». Bank, . 
 
 270 
 
 272 
 
 Norwood V. Norwood, 
 
 . 
 
 231 
 
 Palmer v. Guernsey, . 
 
 
 112 
 
 Nourse V. Prime, 
 
 , 
 
 227 
 
 v. Richardson, 
 
 86,87 
 
 Noyes V. Blakeman, . 
 
 , *, 
 
 46 
 
 V. Van Doren, 
 
 
 364 
 
 V. Sawyer, 
 
 312, 321 
 
 346 
 
 Pannell v. Farmers' Bank, 
 
 
 121 
 
 Nugent V. Riley, 
 
 , 
 
 112 
 
 Pardee v. De Cala, 
 
 
 373 
 
 Nutt V. Nutt, 
 
 
 93 
 
 Parish v. Lewis, 
 
 
 
 243 
 
 Nyce's Est. 
 
 . 
 
 55 
 
 V. Sloan, . 
 
 
 310 
 
 335 
 
 New York Steamboat Co. 
 
 V. New 
 
 
 Park V. Ballentine, 
 
 
 
 312 
 
 Jersey Co. 
 
 ■ 
 
 272 
 
 Parke v. Seewright, 
 Parker v. Carter, 
 
 V. Culvertson, 
 
 
 6,304 
 
 86 
 305 
 268 
 
 Oakley, re, . 
 
 
 61 
 
 v. Gilliam, 
 
 
 
 251 
 
 O'Brien v. Elliot, 
 
 , 
 
 363 
 
 V. Wells, 
 
 
 
 86 
 
 Ocean Insurance Company 
 
 V. Fields 
 
 3 
 
 Parkhurst v. Kinsman, 
 
 
 239 
 
 Ochiltree v. Wright, . 
 
 , , 
 
 58 
 
 V. Van Cortland, 
 
 
 86 
 
 O'Connor v. Debraine, 
 
 , 
 
 360 
 
 Parkinson v. Trousdale, 
 
 
 8 
 
 Offenhouse v. Burleson, 
 
 , 
 
 86 
 
 Parkist v. Alexander, . 
 
 
 153 
 
 Ogden V. Astor, 179, 227, 
 
 228, 239 
 
 ,246 
 
 Parkman v, Welch, 
 
 
 270 
 
 O'Hara v. Shepherd, 408, 
 
 412, 415 
 
 416 
 
 Parks V. Jackson, 
 
 
 151 
 
 Ohio V. Baum, . 
 
 
 82 
 
 Parrish v. Koons, 
 
 77 
 
 363 
 
 V. Ellis, . 
 
 
 302 
 
 Parsons v. Bedford, 
 
 
 376 
 
 Ins. Co. T. Ledyard, 
 
 , , 
 
 153 
 
 V. Browne, 
 
 
 335 
 
 f. Ross, . 
 
 , , 
 
 153 
 
 V. Parsons, 
 
 
 48 
 
 Life Ins. Co. v. Winn, 269 
 
 389 
 
 Parson's Adm'r v. Wilson, 
 
 
 167 
 
 Oldham v. Rowan, 
 
 , 
 
 317 
 
 Partridge v. Havens, . 
 
 33 
 
 101 
 
 V. Trimble, . 
 
 , , 
 
 343 
 
 Pascalis v. Canfield, . 
 
 
 252 
 
 Olive V. Dougherty, . 
 
 
 33 
 
 Paterson and Hudson River 
 
 R.R.' 
 
 
 Oliver V. Mut. Com. Marine Ins. Co 
 
 168 
 
 Co. V. Jersey City, . 
 
 
 199 
 
 V. Palmer, 
 
 23 
 
 ,312 
 
 Patterson v. Ackerson, 
 
 
 376 
 
 V. Piatt, . 
 
 33 
 
 310 
 
 V. Brewster, 
 
 
 239 
 
 O'Neill V. Cole, . 
 
 . 
 
 343 
 
 v. Chalmers, 
 
 
 268 
 
 Ontario Bank v. Schermerhorn, . 
 
 346 
 
 V. Gaines, . 
 
 310 
 
 363 
 
 Oppenheira v. Leo Wolf, 
 
 
 205 
 
 V. Hobbs, . 
 
 
 21 
 
 Orcutt V. Orras, . 
 
 
 339 
 
 V. Patterson, 
 
 
 334 
 
 Orear v. Tanner, 
 
 
 85 
 
 Pattison v. Blanchard, 
 
 
 239 
 
 Orleans v. Chatham, . 
 
 
 28 
 
 V. Hall, . 
 
 
 392 
 
 Ormsby v. Bakewell, . 
 
 
 364 
 
 V. Shaw, 
 
 
 315 
 
 Orton V. Smith, . 
 
 
 198 
 
 Patton V. Ash, . 
 
 
 364 
 
 Osborn v. Carr, . 
 
 
 163 
 
 V. McClure, 
 
 
 86 
 
 V. Phelps, 
 
 
 172 
 
 V. The Schooner Ran 
 
 dolph. 
 
 268 
 
 V. United States Bs 
 
 nk, '. 
 
 363 
 
 Patty V. Pease, . 
 
 
 270 
 
 Osborne v. Bank of United States, 
 
 20 
 
 Paul V. Squib, 
 
 
 61 
 
 V. Taylor, 
 
 
 204 
 
 Paulding v. Watson, . 
 
 
 363 
 
 Osgood v. Franklin, . 
 
 '. 85 
 
 174 
 
 Paulling V. Sturgus, . 
 
 
 21 
 
 et al. V. Franklin, 
 
 
 79 
 
 Pawling V. Jackman, . 
 
 
 192 
 
 Oswald V. MoGehee, . 
 
 
 177 
 
 Paxton V. Harner, 
 
 
 270 
 
 Otis V. Sill, . 
 
 . 123 
 
 150 
 
 Payne v. Matthews, . 
 
 
 243 
 
 Overholt's Appeal, 
 
 . 243, 
 
 246 
 
 Paynes v. Coles, . 
 
 
 363 
 
 Owen v. Paul, . 
 
 , , 
 
 167 
 
 Peabody v. Tarbell, . 
 
 
 33 
 
 Owens v. Cowan, 
 
 , 
 
 138 
 
 Pearce v. Olney, 
 
 
 108 
 
 Owings V. Baldwin, . 
 
 8^ 
 
 ,86 
 
 Pearl v. Nashville, 
 
 220 
 
 222 
 
 v. Emery, 
 
 . 
 
 208 
 
 Pearson v. Daniel, 
 
 
 . 
 
 151 
 
Iviii 
 
 TABLE OP AMERICAN CASES. 
 
 Pearson v. Duokham, . 
 
 . 269 
 
 Piatt V. Oliver, . . 33,318,319 
 
 V. Rookhill, . 
 
 . 31 
 
 V. St. Clair, 
 
 . 272 
 
 Peck V. Ashley, . 
 
 . 20 
 
 Pierce v. Brown, 
 
 . 117 
 
 V. Crane, . 
 
 . 199 
 
 V. Fuller, . 
 
 . 107 
 
 V. Ellis, 
 
 . 268 
 
 v. MoKeehan, . 
 
 . 33 
 
 V. Elder, . 
 
 . 211 
 
 V. Pierce, 
 
 . 33 
 
 V. Fisher, . 
 
 . 246 
 
 V. Tiernan, 
 
 . 243 
 
 V. Sanderson, 
 
 . 399 
 
 V. Trigg, . 
 
 . 233 
 
 V. Woodbridge, . 
 
 . 194 
 
 V. West's Ex'ors, 
 
 . 363 
 
 Peebles v. Reading, . 
 
 32, 33, 154 
 
 Pierpont v. Graham, . 
 
 . 241 
 
 Pell V. Ball, 
 
 230, 231 
 
 Pierson v. Steinmeyer, 
 
 . 239 
 
 Pemberton v. Riddle, . 
 
 . 317 
 
 Pigg V. Corder, . 
 
 . 77 
 
 Pendleton v. Wambersie, 
 
 . 220 
 
 Pike V. Armistead, 
 
 153, 154 
 
 Pennell v. Roy, . 
 
 . 198 
 
 Pinckard v. Pinokard, . 
 
 . 79 
 
 Pennell's App. . 
 
 61, 138 
 
 Pinokney v. Pinckney, 
 
 96, 263 
 
 Pennington v. Gibson, 
 
 . 395 
 
 Pinkston v. Taliaferro, 
 
 . 269 
 
 V. Gittings, 
 
 . 363 
 
 Pinney v. Fellows, 
 
 28, 32, 33 
 
 V. The Governo 
 
 r, . 167 
 
 Pintard v. Martin, 
 
 . 174 
 
 Pennock v. Clough, 
 
 33, 392 
 
 Pirtle V. Penn, . 
 
 . 240 
 
 V. Swayne, . 
 
 . 240 
 
 Pitcher v. Barrows, . 
 
 . 153 
 
 Pennock's App. . 
 
 61, 177 
 
 Pitney v. Leonard, 
 
 . 151 
 
 Estate, 
 
 . 31 
 
 Pitts V. Cottinghara, . 
 
 . 177 
 
 Pensenneau v. Pensenneau, 
 
 . 309 
 
 V. Hooper, . 
 
 . 308 
 
 Pennsylvania v. Wheeling 
 
 Bridge 
 
 Place V. Sweetzer, 
 
 . 242 
 
 Co. ... 
 
 . 211 
 
 Piatt V. McClure, 
 
 . 112 
 
 Penny v. Davis, . 
 
 32, 37 
 
 Pleasants v. Glasscock, 
 
 .. 220,309 
 
 People V. Mercien, 
 
 . 283 
 
 V. Ross, 
 
 . 376 
 
 V. Wilcox, 
 
 . 280, 281 
 
 et al. V. Ross, 
 
 . 192 
 
 Perine v. Dunn, . 
 
 . 121 
 
 Plume V. Bone, . 
 
 . 153 
 
 Perkins v. Hays, 
 
 . 32 
 
 Poillon V. Martin, 
 
 . 184 
 
 v. Hollowell, . 
 
 . 196 
 
 Poindexter v. Henderson, 
 
 . 208 
 
 v. Kershaw, . 
 
 . 269 
 
 Pointdexter v. Davis, . 
 
 3 
 
 V. MoGavock, 
 
 . 179 
 
 V. McCannon, 
 
 . Ill 
 
 V. Wright, 
 
 77,84 
 
 Polk v. Galliant, . 
 
 . 270, 317 
 
 Matter of. 
 
 . 293 
 
 Pollard V. Collier, 
 
 . 319 
 
 Perrine v. Striker, 
 
 . 194 
 
 Pomeroy v. Sigerson, . 
 
 . 239 
 
 Perry v. Boileau, 
 
 . 45 
 
 V. Pomeroy, . 
 
 . 309 
 
 V. Head, . 
 
 . 32 
 
 Pool V. Lloyd, 
 
 . 334 
 
 Peter v. Beverly, . 
 
 37, 136 
 
 Poor V. Carleton, 
 
 . 195, 356 
 
 Peters v. Goodrich, . 1 
 
 51, 153, 104 
 
 Pope V. Andrews, 
 
 . 364 
 
 Petrie v. Clark, . 
 
 . 251 
 
 V. Elliott, . 
 
 . 42 
 
 Pettit v. Chandler, 
 
 10, 308 
 
 V. Henry, . 
 
 . 153 
 
 V. Jennings, 
 
 . 20 
 
 V. Jackson, 
 
 . 285 
 
 Matter of, . 
 
 . 293 
 
 V. Melone, . 
 
 . 318 
 
 Re, . . . . 
 
 . 297 
 
 Porter v. Clements, 
 
 . 315 
 
 Petty V. Petty, . 
 
 . 180 
 
 V. Cole, . 
 
 . 153 
 
 Peyton v. Alcorn, 
 
 . 285 
 
 V. Doby, . 
 
 . 40 
 
 V. Smith, . 
 
 268, 280 
 
 V. Patterson, 
 
 . 228 
 
 Pharis, v. Leachman, . 
 
 . 250 
 
 V. Spencer, 
 
 222, 360 
 
 Phelps V. Green, 
 
 . 231 
 
 V. Turner, 
 
 99, 101 
 
 V. Spafford & Curtis, 
 
 . 23 
 
 V. Williams, 
 
 . 355 
 
 Phillips V. Belden, 
 
 227, 228 
 
 V. Witham, 
 
 . 211 
 
 V. Berger, 
 
 . 83 
 
 Post V. Dart, 
 
 . 364 
 
 V. Cook,- 
 
 . 242 
 
 V. Dorr, 
 
 . 121 
 
 V. Crammond, 
 
 32, 33, 143 
 
 V. Kimberley, 
 
 . 220 
 
 V. Moore, 
 
 . 183 
 
 V. Mackall, . 263, 2 
 
 72, 291, 315 
 
 V. Prevost, 
 
 8,308 
 
 Postley V. Kain, . 
 
 . 232 
 
 V. Richardson, 
 
 . 363 
 
 Poston V. Eubank, 
 
 . 270 
 
 Philpott V. Elliott, 
 
 . 85 
 
 Potier V. Barclay, . 
 
 . 234 
 
 Phcenix v. Ingraham, . 
 
 . 20 
 
 Potter V. Everett,. 
 
 . 174 
 
 Phyfe V. Warden, 
 
 . 77 
 
 V. Moses, . 
 
 . 239 
 
TABLE OF AMERICAN CASES. 
 
 lix 
 
 Potter V. Tuttle, . 
 
 . 88 
 
 Ramey v. Green, . . 315, 316 
 
 ,414 
 
 Potts, Ex parte, . 
 
 . 286 
 
 Ramsey's Appeal, 
 
 
 272 
 
 Powell V. Central Plank Co. 
 
 . 77 
 
 Randall v. Phillips, . 
 
 
 112 
 
 V. Fireman's Ins. Co. 
 
 . 169 
 
 V. Silverthorn, 
 
 
 153 
 
 V. Manufacturing Co. ; 
 
 !3, 233 
 
 Randolph v. Kinney, . 
 
 .* 200 
 
 .220 
 
 V. North, . 
 
 . 246 
 
 V. Randolph, 
 
 
 227 
 
 T. Powell, 
 
 . 32 
 
 Rankin v. Harper, 
 
 
 33 
 
 V. Williams, . 
 
 . 118 
 
 V. Maxwell, 
 
 
 90 
 
 Power V. Reeder, 
 
 . 222 
 
 Rathbone v. Clark, 
 
 .' 268 
 
 ,270 
 
 Powers V. Hale, , 
 
 . 79 
 
 Rawling V. Stewart, 
 
 
 118 
 
 V. Bergen, 
 
 . 285 
 
 Ray V. Bank of Kentucky, 
 
 
 189 
 
 V. Butler, 
 
 . 197 
 
 V. Bogart, 
 
 
 227 
 
 V. Heery, 
 
 . 210 
 
 Rayner v. Pearsall, 
 
 
 227 
 
 Pragoffv. Heslep, 
 
 . 268 
 
 Read v. Long, 
 
 
 79 
 
 Prater v. Miller, . 
 
 . 77 
 
 V. Robinson, 
 
 
 37 
 
 Pratt V. Northam, 
 
 . 303 
 
 V. Simons, . 
 
 
 123 
 
 V. Philbrook, 
 
 . 177 
 
 Reade v. Livingston, . 
 
 
 43 
 
 V. Taliaferro, 33, 136, i; 
 
 !8, 139 
 
 Reading y. Blackwell, . 
 
 
 136 
 
 V. Thornton, 
 
 31 
 
 Rearitch v. Swinehart, . 
 
 
 168 
 
 V. Wright, . 
 
 . 282 
 
 Receivers v. Patterson Gas L 
 
 ightCo 
 
 355 
 
 Prentice v. Aohorn, 
 
 84 
 
 Redd v. Wood, . 
 
 
 335 
 
 T. Buxton, 
 
 . 221 
 
 Redman v. Green, 
 
 
 227 
 
 Prescott V. Hubbell, . 
 
 . 346 
 
 Redmond v. Dickerson, 
 
 
 335 
 
 Preston v. Dunn, 
 
 . 281 
 
 Reed v. Bacbelder, 
 
 
 268 
 
 f. Whitoomb, . 
 
 . 168 
 
 V. Beazley, . 
 
 
 45 
 
 Prevo V. Walters et al. . 
 
 . 32 
 
 v. Cline, . 
 
 
 376 
 
 Prevost V. Gratz, . . 32, f 
 
 )1, 399 
 
 V. Kemp, . 
 
 
 402 
 
 Prewift V. Perry, . 
 
 . 197 
 
 V. Morrison, 
 
 
 233 
 
 Price V. Clevinger, 
 
 . 196 
 
 V. Murphy, 
 
 
 239 
 
 V. MacDonald, . 
 
 153 
 
 V. Sheppardson, . 
 
 
 243 
 
 V. Methodist Church, . 
 
 . 68 
 
 Rees V. Waters, . 
 
 
 48 
 
 Y. Nesbit, . 
 
 . 250 
 
 Reese v. Wyman, 
 
 168 
 
 177 
 
 V. Price, 
 
 . 233 
 
 Reid V. Fitch, 
 
 
 33 
 
 v. Tyson, . 
 
 389 
 
 V. Gifford, . 
 
 
 211 
 
 Pride v. Boyee, . 
 
 . 270 
 
 V. Lamar, . 
 
 
 46 
 
 Prince v. Logan, . 
 
 286 
 
 Reimsdyok v. Kane, 
 
 
 20 
 
 Printup V. Mitchell, 
 
 86 
 
 Rembert v. Brown, . li 
 
 6, 228 
 
 356 
 
 Pritchard v. Hicks, . . 2S 
 
 8,316 
 
 Remiok v. Butterfield, . 
 
 
 61 
 
 Pugh V. Bell, 
 
 33 
 
 Remington v. Irwin, 
 
 
 88 
 
 V. Currie, ... 3 
 
 3,246 
 
 Remsen v. Remsen, 
 
 379 
 
 383 
 
 V. Good, 
 
 86 
 
 Renton v. Chaplain, . 
 
 242 
 
 243 
 
 Pugh's Heirs v. Bell's Heirs, 
 
 32 
 
 Renwick v. Renwick, . 
 
 
 23 
 
 Purcell V. Maddox, 
 
 319 
 
 Repp et al. v. Repp, . 
 
 
 128 
 
 Purdy V. Doyle, ... 25 
 
 2,257 
 
 Respass v. Breokenridge, 
 
 
 233 
 
 V. Purdy, . 
 
 33 
 
 Rexford v. Widger, 
 
 , 
 
 175 
 
 Purviance v. McClintee, 
 
 239 
 
 Reybold v. Dodd, 
 
 
 220 
 
 Putnaiji Free School v. Fisher, 
 
 37 
 
 Reynolds v. Reynolds, . 
 
 
 231 
 
 V. Sweet, 
 
 320 
 
 Rhodes v. Cousins, 
 
 
 360 
 
 
 
 Rice V. Barnard, . 
 
 243 
 
 246 
 
 Quackenbush v. Van Riper, . 
 
 196 
 
 V. Burnett, . 
 
 
 28 
 
 Quinn V. Brittain, . 
 
 118 
 
 V. Bixter, 
 V. Downing, 
 
 
 136 
 
 270 
 
 Radcliff V. Rowley, 
 
 303 
 
 V. Rawlings, 
 
 . 
 
 84 
 
 Ragan v. Echols, . 
 
 364 
 
 V. Tonnelle, 
 
 
 287 
 
 Ragland v. Justices, 
 
 110 
 
 Rich V. Catterson, 
 
 
 167 
 
 Ragusin v. Fort, . . . . 
 
 23 
 
 Richards v. Salter, 
 
 203, 
 
 389 
 
 Raines v. Jones, , . . , 
 
 21 
 
 Richardson v. Baker, . 
 
 , 
 
 129 
 
 Rainey v. Yarborongh, . 
 
 269 
 
 V. Hunt, 
 
 
 320 
 
 Ralston v. Hughes, 
 
 114 
 
 V. Jones, . 
 
 , 
 
 61 
 
 V.Telfair, 
 
 32 
 
 V. McKinson, 
 
 
 302 
 
 Rambo v. Rambo, 
 
 336 
 
 V. Wyatt, . 
 
 233, 
 
 346 
 
Ix 
 
 TABLE OF AMERICAN CASES. 
 
 Richmond v. Aiken, 
 
 . H5 
 
 Riddle's Est. 
 
 . 416 
 
 Rider v. Riley, 
 
 8, 345 
 
 Ridgeway's App. 
 
 . 246 
 
 Ridgley v. Warfield, 
 
 . 340 
 
 Ridgway v. Bank of T 
 
 ennessee, . 197 
 
 V. Toram, 
 
 . 371,417 
 
 Ridley v. MoNairy, 
 
 . 86 
 
 Riker v. Darke, . 
 
 . 230 
 
 Rinehavt v. Harrison, 
 
 . 136 
 
 Ringgold V. Bryan, 
 
 . 363 
 
 V. Ringgold, 
 
 . 55, 58, 61 
 
 Ringo V. Warder, . 
 
 . 313 
 
 Rippy V. Gant, 
 
 . 183 
 
 Roane v. Pickett, . 
 
 319 
 
 Roane's Ex'rs v. Heme 
 
 . 45 
 
 Robards v. Wortham, 
 
 . 263, 275 
 
 Robb V. Stevens, . 
 
 . 243 
 
 Robbins v. Davis, 
 
 14, 15 
 
 Roberts v. Anderson, 
 
 196 
 
 V. Jackson, 
 
 . 285 
 
 V. Ross, 
 
 128 
 
 v. Tottan, 
 
 . 227 
 
 V. Welch, 
 
 . 115 
 
 Matter of. 
 
 . 293 
 
 Robertson v. Bingley, 
 
 . 8, 335, 344 
 
 V. Kettletas, 
 
 77 
 
 V. Maxcey, 
 
 . 269 
 
 V. Pett, 
 
 . 61 
 
 V. Robinson, 
 
 . 174 
 
 V. Robertson 
 
 32 
 
 V. Stephens, 
 
 . 310 
 
 V. Stevens, 
 
 96 
 
 V. Sublett, 
 
 . 31 
 
 Robeson v. Hornbaker, 
 
 . 86 
 
 V. Pittenger, 
 
 . 2)1 
 
 Robinson v. Codnian, 
 
 . 233 
 
 V. CroM^der, 
 
 . 241 
 
 V. Fife, 
 
 . 115 
 
 V. Sampson, 
 
 . 20 
 
 V. Woodgate 
 
 . 10 
 
 Rockwell V. Folsom, 
 
 23 
 
 V. Hobby, 
 
 . 123 
 
 T. Lawrence 
 
 77, 91 
 
 Rodes V. Crockett, 
 
 . 269 
 
 Rodgers v. Jones, 
 
 . 121 
 
 V. Rodgers, 
 
 . 196 
 
 Rodman v. Zilley, 
 
 79, 84 
 
 Rodriguez v. Hefferma 
 
 n, . . 243 
 
 Rogan V. Walker, 
 
 . 112,331 
 
 Rogers v. Cincinnati, . 
 
 . 198 
 
 V. Dill, . 
 
 . 285 
 
 V. French, 
 
 . 104 
 
 V. Murray, 
 
 . 33 
 
 V. Rogers, 
 
 45,208,201,263 
 
 V. Ross, . 
 
 . 32 
 
 V. Saunders, 
 
 77 
 
 V. Solomons, 
 
 . 356 
 
 Roloson V. Carson, 
 
 . 192 
 
 Roosevelt v. Elitliorp, 
 
 . 12 
 
 Rorer v. O'Brien, . 
 
 . 48 
 
 Rose V. Jessup, . 
 
 V. Rose, 
 Rosevelt v. Fnlton, 
 Roshell V. Maxwell, 
 Ross V. Adams, . 
 v. Carter, 
 V. Clore, 
 V. Nor veil, . 
 V. Prentiss, . 
 V. Whitson, . 
 Rosser v. Randolph, 
 Rossiter v. Cossit, 
 Rough V. Marshall, 
 Row V. Dawson, . 
 Rowe V. Granite Bridge Co. 
 Rowland v. Martindale, 
 Rowton V. Rowton, 
 Roy V. Willink, . 
 Royal V. McKenzie, 
 Royer's App. 
 Royston v. Royston, 
 Rucker v. Howard, 
 V. Abell, . 
 Rugge V. Ellis, . 
 Rumbly V. Stainton, 
 Rumph V. Abercrombie, 
 Rundle v. Murgatroyd' 
 Runey Dey, matter of, 
 Runnels v. Jackson, 
 Runyan v. Messereau, 
 Russ T. Hawes, . 
 Russell V. Austin, 
 V. Clark, . 
 V. Failer, 
 V. Howard, 
 V. Lanier, 
 V. Plaice, 
 V. Russell, 
 V. Southard, 
 Russell's App. 
 Rust V. Ware, 
 Rutherford v. Branch Bank, 
 V. Green, 
 V. Jones, 
 V. Ruff, 
 Rutland v. Paige, 
 Rutledge V. Greenwood, 
 
 V. Smith, 
 Ryan v. Shawneeiown, 
 
 Sabin v. Gillman, 
 Salisbury, Matter of, 
 Salmon v. Claggett, 8, 
 Saltus T. Tobias, . 
 Sample v. Barnes, 
 Sampson v. Sampson, 
 Satnuel v. Berger, 
 Sanders v. Watson, 
 Sanford v. .Tackson, 
 v. McLean, 
 Sarles v. Sarles, . 
 
 141 
 
 309 
 
 177 
 
 198 
 
 389 
 
 365 
 
 270 
 
 111,115 
 
 417 
 
 128 
 
 211 
 
 233 
 
 392 
 
 54 
 
 211 
 
 221 
 
 233 
 
 77 
 
 363 
 
 60, 285 
 
 231 
 
 393 
 
 33, 101 
 
 90 
 
 346 
 
 183 
 
 Assignees, 43 
 
 . 291 
 
 . 33 
 
 . 114 
 
 303, 304 
 
 . 233 
 
 . 323 
 
 . 267 
 
 . 272 
 
 . 335 
 
 . 121 
 
 . 123 
 
 111,112 
 
 . Ill 
 
 . 197 
 
 . 269 
 
 . 136 
 
 . 230 
 
 . 183 
 
 . 403 
 
 . 268 
 
 . 28 
 
 . 310 
 
 12, 208, 
 
 . 282 
 
 285, 296 
 
 , 269, 303 
 
 340 
 
 197 
 
 102 
 
 217 
 
 269 
 
 95 
 
 269 
 
 208 
 
TABLE OP AMERICAN CASES. 
 
 Ixi 
 
 Satterthwaite v. Emley, 
 
 
 43 
 
 Shepherd v. Shepherd, 
 
 . 78 
 
 Saunders v. Edwards,. 
 
 
 40 
 
 Sheppard v. Starke, 
 
 . 309 
 
 V. Frost, 
 
 118 
 
 , 389 
 
 Shermer v. Beale, 
 
 . 192 
 
 Savage v. Benham, 
 
 
 309 
 
 Sherry v. Lansberry, . 
 
 . 285 
 
 Saxon V. Barksdale, 
 
 251 
 
 ,335 
 
 Sherwood v. Sutton, 
 
 . 228 
 
 Sayre v. Townsends, . 
 
 
 33 
 
 Shields v. Arndt, . 
 
 . 211 
 
 Schenck v. EUingwood, 
 
 
 99 
 
 V. Barrow, 
 
 346, 402 
 
 Sohenok's Adm'r v. Cuttrell, 
 
 
 192 
 
 V. Commonwealth, . 
 
 . 167 
 
 Schermerhorn v. Barhydt, . 
 
 
 274 
 
 V. Thomas, 
 
 . 309 
 
 Sohieffelin v. Stewart, . 
 
 
 55 
 
 Shinas v. Caig, 
 
 . 162 
 
 Schmidt v. Livingston,. 
 
 
 85 
 
 Shine v. Wilcox, . 
 
 . 208 
 
 School Dist. V. Macloon, 
 
 8f 
 
 ,346 
 
 Shinnie v. Coil, 
 
 . 192 
 
 Schooner William Thomas v 
 
 . Ellis 
 
 , 268 
 
 Shipley v. Ritter, 
 
 . 210 
 
 Schryner v. Teller, 
 
 
 270 
 
 Shipp V. Jameson, 
 
 . 220 
 
 Sohutt V. Large, . 
 
 
 154 
 
 V. Swan, . 
 
 168, 172 
 
 Schuyler v, Hoyle, 
 
 
 313 
 
 Shirley v. Shirley, 
 
 . 44 
 
 Schwarz v. Wendell, . 
 
 
 337 
 
 Shirras v. Caig, . 
 
 . Ill 
 
 Scott V. Btitton, . 
 
 
 111 
 
 Shitz v. Deifenbach, . 
 
 . 123 
 
 V. Clarkson, 
 
 
 363 
 
 Shobe V. Carr, 
 
 43, 103 
 
 V. Freeland, 
 
 61, 184 
 
 Shoemaker v. Smith, . 
 
 . 33 
 
 V. Gallagher, 
 
 
 153 
 
 V. Walker, 
 
 51, 233 
 
 V. Gamble,. 
 
 
 177 
 
 Short V. Skipwith, 
 
 . 221 
 
 Scrimeger v. Buckhannon, 
 
 
 302 
 
 Shotwell V. Mott, 
 
 . 65 
 
 Scudder V. The Trenton Del 
 
 iware 
 
 
 V. Murray, . 
 
 168, 170 
 
 Falls Co. . 
 
 
 210 
 
 Shotweirs Ex'r v. Mott, 
 
 . 65 
 
 Seabrook v. Rose, 
 
 
 268 
 
 Shreve v. Black, . 
 
 . 210 
 
 Sears V. Hyer, 
 
 
 231 
 
 Shubrick v. Guerard, . 
 
 . 208 
 
 V. Shafer, . 
 
 
 184 
 
 Shultz V. Moore, . 
 
 . 153 
 
 Sabring v. Mersereau, . 
 
 
 230 
 
 Shunk's App. 
 
 257, 272 
 
 Second Cong. Soc. &c. v. First 
 
 Cong 
 
 
 Shutt V. Carloss, . 
 
 . 288 
 
 Soc. &c. . 
 
 
 364 
 
 Shutts V. Moore, . 
 
 . 154 
 
 Sedgwick v. Cleveland, 
 
 408, 409 
 
 Sidle V. Walter, . 
 
 32,33 
 
 Sellers V. Stalcup, 
 
 
 111 
 
 Sigourney v. Munn, . 1 
 
 51,244,246 
 
 Sellings v. Bumgardner, 
 
 
 316 
 
 Silcox V. Nelson, . 
 
 . 310 
 
 Sellman v. Bowen, 
 
 
 235 
 
 Simmons v. North, 
 
 . 168 
 
 Semmes v. Mayor of Colun 
 
 ibns, . 
 
 356 
 
 V. Tongue, 
 
 . 243 
 
 Sergeant v. IngersoU, 1 
 
 57, 159, 162 
 
 V. Whitaker, 
 
 . 259 
 
 Seton V. Slade, 
 
 
 90 
 
 Simms v. Smith, . 
 
 . 399 
 
 Severance v. Hilton, . 
 
 
 192 
 
 Simonton v. Gray, 
 
 . 233 
 
 Sewell V. Baxter, . 
 
 
 33 
 
 Simpson v. Ammons, . 
 
 . 110 
 
 Sexton V. Wheaton, 
 
 43, 146 
 
 V. Feltz, 
 
 . 239 
 
 Seymour v. Delancy, . 
 
 ■ 77, 
 
 39,84 
 
 v. Simpson, . 
 
 . 45 
 
 V. Hazard, 
 
 
 360 
 
 V. Watts, 
 
 . 417 
 
 V. Seymour, . 
 
 
 20 
 
 Sims V. Aughtery, 
 
 20, 310 
 
 Shaeffer v. Chambers, . 
 
 
 118 
 
 Sinclair v. Jackson, 
 
 . 58 
 
 V. Slade, 
 
 
 191 
 
 Singleton v. Gayle, 
 
 . 20 
 
 Shafer v. Davis, . 
 
 
 168 
 
 Sinnickson v. Bruere, . 
 
 . 386 
 
 Shannon v. Marselis, . 
 
 
 . 270 
 
 Siter v. McClanahan, . 
 
 . 136, 163 
 
 Sharp V. Morrow, 
 
 
 364 
 
 Sites V. Keller, . 
 
 . 86 
 
 V. Sharp, . 
 
 
 334 
 
 Sitler V. Walker, . 
 
 . 242 
 
 Shaw V. Chester, . 
 
 
 205 
 
 Skidmore v. Romaine, . 
 
 . 263 
 
 V. Coster, . 
 
 
 206 
 
 Skinner v. Bailey, 
 
 . 304 
 
 Sheafler's App. . 
 
 
 32,33 
 
 V. Dayton, . 1 
 
 07, 240, 241 
 
 Sheckell v. Hopkins, . 
 
 
 112 
 
 V. Darning, 
 
 . 197 
 
 Shed V. Garfield, . 
 
 
 335 
 
 V. Judson, 
 
 3, 4, 5 
 
 Sheidle v. Weishlee, . 
 
 
 173 
 
 Matter of. 
 
 . 231 
 
 Sheldon v. Bird, . 
 
 
 113 
 
 V. Miller, 
 
 . 113 
 
 Shepard v. Shepard, . 
 
 
 303 
 
 V. Smith, 
 
 . 115 
 
 Shepherd v. Adams, . 
 
 
 270 
 
 V. White, 
 
 . 107, 174 
 
 V. Bevin, 
 
 
 79 
 
 Skipp V. Jameson, 
 
 . 220 
 
 V. McEvers, . 
 
 31, 37, 38 
 
 Skipwith's Ex'r v. Cunningham, . 28 
 
Ixii 
 
 TABLE OF AMEKICAN CASES. 
 
 Skrine v. Simmons, 
 
 . 176, 303 
 
 Smith V. Walker, . 
 
 . 167 
 
 Slack V. Walcott, . 
 
 . 406 
 
 Snead v. MoCoull, 
 
 . 346 
 
 Slason V. Wright, 
 
 . 403 
 
 Sneed v. Atherton, 
 
 . 233 
 
 Slaughter v. Harris, 
 
 . 77 
 
 Snelgrove v. Snelgrove, 93, 
 
 95, 96, 162 
 
 V. Tindle, . 
 
 90,91 
 
 Snellingv. Boyd, . 
 
 • 317 
 
 Sledds V. Carey, . 
 
 . 96 
 
 V. Uterbaok, . 
 
 32,33 
 
 Slee V. Bloom, 
 
 . 227 
 
 Snelson v. Franklin, . 
 
 . 179 
 
 V. The Manhattan Com 
 
 pany. 
 
 Snodgrass's App. 
 
 . 243 
 
 11 
 
 1, 115, 389 
 
 Snowhill T. Snowhill, . 33, 136, 285 
 
 Sloan V. Little, . 
 
 . 10 
 
 Society for Propagation of the Gos- 
 
 V. Whiteman, . 
 
 . 416 
 
 pel V. Hartland, 
 
 312, 320 
 
 Slooum V. Catlin, . 
 
 . 112 
 
 Sohier T. Williams, 
 
 . 316 
 
 V. Marshall, . 28, 
 
 29, 33, 184 
 
 Soles V. Hickman, 
 
 . 77 
 
 V. Slocum, 
 
 . 138 
 
 Solms T. McCulloch, . 
 
 153, 154 
 
 et ux. V. Marshall et 
 
 al. . 32 
 
 Southard Y. Cushing, . 
 
 . 364 
 
 Slosson V. Beadle, 
 
 . 107 
 
 T. Morris Canal, 
 
 . 210 
 
 Small V. Owings, 
 
 . 363 
 
 v. Russell, 
 
 . 417 
 
 V. Boudinot, 
 
 . 303 
 
 Southern Life Ins. &c. Co. t. 
 
 Cole, 
 
 Sniedburg v. Mark, 
 
 . 360 
 
 
 82,88 
 
 Smith V. Baboook, 
 
 177, 346 
 
 Southgate v. Montgomery, 
 
 . 197 
 
 V. Bailey, . 
 
 . 121 
 
 Souza V. Belcher, 
 
 . 334 
 
 V. Bangs, . 
 
 . 211 
 
 Souzer v. De Meyer, . 
 
 . 339 
 
 V. Brittan, . 
 
 . 231 
 
 Spalding v. Hedges, 
 
 . 239 
 
 V. Burnham, 
 
 33, 305 
 
 Sparhawk V. Buell, 
 
 . 287 
 
 V. Clark, . 
 
 . 303, 363 
 
 Speed's Ex'r y. Nelson's Ex' 
 
 r, . 254 
 
 V. Cummings, 
 
 211, 356 
 
 Speights T. Peters, 
 
 243, 352 
 
 V. Elliott, . 
 
 . 183 
 
 Speiglemeyer v. Crawford, 
 
 . 177 
 
 Ex parte, . 
 
 . 282 
 
 Spence v. Duren, . 
 
 178, 303 
 
 V. Fisher, . 
 
 . 344 
 
 V. Whittaker, . 
 
 . 177 
 
 V. Jackson, . 
 
 233, 246 
 
 Spencer v. Spencer, 
 
 . 58 
 
 V. Jones, . 
 
 . 246 
 
 Sperry's Est. 
 
 243, 254 
 
 V. Kane, . 
 
 . 48 
 
 Spiller V. Spiller, . 
 
 . 121 
 
 V. Kincaid, 
 
 363 
 
 Spivey v. Jenkins, 
 
 . 322 
 
 V. Kinskern, 
 
 . 95 
 
 Spofford T. Manning, . 
 
 333, 335 
 
 V. Kornegay, 
 
 . 314 
 
 V. Weston, 
 
 . 153 
 
 V. Lasher, . 
 
 10, 308 
 
 Spooner t. McConnell, 
 
 208, 211 
 
 V. Lockwood, 
 
 . 211 
 
 Spotswood V. Dandridge, 
 
 . 268 
 
 V. Lowe, . 
 
 . 243 
 
 V. Pendleton, 
 
 . 285 
 
 V. Manning's Ex'rs, 
 
 . 113 
 
 Spring T. So. Car. Ins. Co. 
 
 . 389 
 
 V. Marks, . 
 
 . 224 
 
 Springle v. Shields, 
 
 91 
 
 V. Maxwell's Ex'rs, 
 
 43 
 
 Sproule V. Samuel, 
 
 . 364 
 
 V. McConnell, . 
 
 . 199 
 
 Stacy T. Pearson & Bobitt, 
 
 . 20 
 
 V. McCrary, 
 
 . 136 
 
 Staflbrd v. Bartholomew, 
 
 .' 80 
 
 V. McDougal, . 
 
 . 168 
 
 V. Brown, 
 
 . 303 
 
 V. Moore, . 
 
 103, 114 
 
 ■<' Bryan, . 
 
 . 21 
 
 V. Pettingill, 
 
 . 210 
 
 V. Mott, . 
 
 . 389 
 
 V. Poyas, . 
 
 208 
 
 V. Van Rensselaer, 
 
 . 128 
 
 V. Ramsay, 
 
 . 246 
 
 Stagg V. Jackson, . 
 
 136, 254 
 
 V. Ramsey, 
 
 . 33 
 
 Staines v. Shore, . 
 
 . 177 
 
 V. Richards, 
 
 . 177, 179 
 
 Stanard v. Rogers, 
 
 . 197 
 
 V. Robertson, . 
 
 . 177 
 
 Stanley v. Brennon, 
 
 . 33 
 
 V. Shuler, . 
 
 . 117 
 
 V. Stocks, 
 
 . 270 
 
 V. Smith, 33, 55, 86, IC 
 
 1, 110, 114, 
 
 Stanley's App. 
 
 57,60 
 
 192,2 
 
 30, 231, 309 
 
 Stapleton v. Langstaff, . 
 
 . 285 
 
 V. Starr, 
 
 . 136 
 
 Stark V. Wood, . 
 
 . 356 
 
 V. Swormstedt, . 
 
 . 320 
 
 Stark's Heirs v. Cannaday, 
 
 . 32 
 
 V. Tarlton, . 
 
 . 246 
 
 State V. MoGowen, 
 
 . 65 
 
 V. Trenton Falls Co. 
 
 . 309 
 
 V. Paup, 
 
 . 168 
 
 V. Turrentine, . 
 
 . 168 
 
 Bank v. Edwards, 
 
 . 363 
 
 V. Underdunok, . 
 
 . 86 
 
 V. Marsh, . 
 
 . 61 
 
 V. Wainright, . 
 
 . 222 
 
 Stearns v. Hubbard, . 
 
 . 86 
 
TABLE OF AMERICAN CASES. 
 
 Ixiii 
 
 Stearns v. Page, . 
 
 . 337, 339 
 
 Stuart V. Coalter, 
 
 . 230,310 
 
 Stedwell V. Anderson, 
 
 . 168 
 
 V. Kissam, 
 
 . 263, 313 
 
 Steedman v. Weeks, 
 
 . 230, 231 
 
 Smbbs V. Burwell, 
 
 . 23 
 
 Steele v. White, . 
 
 . 188 
 
 V. Whiting, 
 
 . 43 
 
 Stehman's Appeal, 
 
 . 62 
 
 Stuger V. Longworth, . 
 
 . 418 
 
 Steere v. Steere, . 
 
 . 28, 29, 33 
 
 Stump V. Findlay, 
 
 93,97 
 
 Stell's Appeal, . 
 
 . 58 
 
 V. Rogers, 
 
 . 270 
 
 Steiger v. Hillen, . 
 
 . 235 
 
 Sturges V. Longworth, 
 
 313, 324 
 
 Stephens v. Cady, 
 
 . 215 
 
 Sturgess v. Gary, 
 
 . 271 
 
 T. Teirel, 
 
 . 346 
 
 Sturtevant v. Goode, . 
 
 . 220, 224 
 
 Stephenson v. Taverne 
 
 rs. 
 
 Stuyvesant v. Hall, 
 
 37. 153, 154 
 
 258, 260, 268, 270 
 
 V. Howe, . 
 
 . 270 
 
 T. Taylor, 
 
 . 177 
 
 V. Matter of. 
 
 . 37 
 
 Sterling v. Brightbill, 
 
 . 272 
 
 V. Peokham, 
 
 6 
 
 Sterry v. Arden, . 
 
 102, 402 
 
 Sullivan v. Blackwell, . 
 
 . 184 
 
 V. Servant, 
 
 . 402 
 
 V. Turk, 
 
 . 83 
 
 Stevens v. Beekman, 
 
 . 210 
 
 V. Winthrop, . 
 
 , 103 
 
 V. Cooper, 
 
 . 270 
 
 Summers v. Bean, 
 
 . 83 
 
 V. Dewey, 
 
 . 417 
 
 Sumner v. Hampson, . 
 
 . 233, 246 
 
 V. Gregg, . 
 
 . 261 
 
 V. Mercy, 
 
 . 198 
 
 V. Smith,. 
 
 51,233 
 
 V. Rhodes, ; 
 
 . 153 
 
 Steward v. Winter, 
 
 . 207 
 
 Surget V. Byers, . 
 
 . 174 
 
 Stewart v. Brown, 
 
 . 33 
 
 Suydam v. Beals, 
 
 . 197 
 
 V. Drasha, 
 
 3 
 
 Swan V. Dent, 
 
 . 317, 346 
 
 V. Heard, 
 
 . 233 
 
 Swartzer v. Gillett, 
 
 . 175 
 
 V. Ives, . 
 
 . 128 
 
 Swayze v. Swayze, 
 
 302, 310 
 
 V. McMinn, 
 
 . 61 
 
 Sweet v. Sweet, . 
 
 . 283 
 
 V. Stone, . 
 
 . 20 
 
 Sweezy v. Thayer, 
 
 . 285 
 
 V. Turner, 
 
 . 379 
 
 Swift V. Dean, . 
 
 . 21 
 
 St. Felix V. Rankin, 
 
 . 233 
 
 V. Eokford, 
 
 . 310 
 
 Stiles V. Brock, . 
 
 . 172 
 
 V. Swift, . 
 
 . 356 
 
 Stires v. Stires, . 
 
 . 274 
 
 Swoope's Appeal, 
 
 . 104 
 
 St. John V. Benedict, . 
 
 77, 84 
 
 Swoyer's Appeal, 
 
 . 55 
 
 St. Mary's Church r. S 
 
 tockton, . 84 
 
 
 
 Stockett V. HoUiday, . 
 
 . 81 
 
 Tabb V. Archer, . 
 
 . 288 
 
 Stockton V. Ford, 
 
 . 184 
 
 Taggart v. Bolden, 
 
 . 363 
 
 Stoddart v. Tuck, 
 
 . 86 
 
 Talbot V. McGee, 
 
 . 402 
 
 Stoever v. Stoever, 
 
 . 112 
 
 V. Pierce,. 
 
 243, 246 
 
 Stone V. Anderson, 
 
 . 309 
 
 Taliaferro v. Taliaferro, 
 
 . 32 
 
 V. Hale, . 
 
 . 168 
 
 Talley v. Starke, 
 
 . 285 
 
 Stoner v. Zimmerman, 
 
 . 136 
 
 Tallman v. Wood, 
 
 . 40 
 
 Stoney v. Shultz, 
 
 . 270 
 
 Tallmadge v. Lovett, . 
 
 . 335 
 
 Stoolfoos v. Jenkins, . 
 
 . 176 
 
 Talmage v. Pell, 
 
 18, 19 
 
 Storm V. Mann, . 
 
 . 208 
 
 Tankersley v. Anderson, 
 
 . 270 
 
 Story V. Livingston, 
 
 312, 283, 386 
 
 Tarelton v. Vietes, 
 
 . 17 
 
 V. Moon, . 
 
 . 243 
 
 Tassey v. Church, 
 
 . 240 
 
 V. Norwich and T 
 
 Worcester, . 192 
 
 Talum V. Tatura, 
 
 . 269 
 
 Story's Ex'rs v. Holcon 
 
 ibe, . . 215 
 
 Tayloe v. Merchants' Fire In 
 
 3. Co. 83 
 
 Stouffer V. Machen, . 
 
 . 363 
 
 Taylor v. Benham, 
 
 12, 136, 138 
 
 Stoutenberg v. Tompki 
 
 ns, . 77, 82 
 
 v. Galloway, . 
 
 . 37 
 
 Stoutenburgh v. Peck, . 
 
 . 196 
 
 v. Heriot, . 
 
 . 270 
 
 Stovall V. N. Bank of J 
 
 Wiss. . 336 
 
 V. James, . 
 
 33, 78, 102 
 
 Stover V. Bounds, 
 
 . 112 
 
 V.Luther, 10,11 
 
 1, 339, 344 
 
 Stowe V. Thomas, 
 
 . 215 
 
 V. Maris, . 
 
 . 270 
 
 Strange v. Bell, . 
 
 . 202 
 
 V. Moore, 
 
 . 364 
 
 V. Watson, 
 
 . 309 
 
 V. Sandford, 
 
 . 107 
 
 Straughan v. Wright, . 
 
 230 
 
 V. Savage, 
 
 . 269 
 
 Streatfield v. Streatfielt 
 
 1, . .92 
 
 V. Taylor, 33, K 
 
 )1, 102, 184 
 
 Streator v. Jones, 
 
 . 112 
 
 V. Titus, . 
 
 . 402 
 
 Strong V. Stewart, 
 
 . Ill 
 
 Taylor's Adm'r v. Nicholson 
 
 . 192 
 
 Stuart V. Carson, . 
 
 . 261, 263 
 
 Taymon v. Mitchell, . 
 
 . 177 
 
Ixiv 
 
 TABLE OF AMERICAN CASES. 
 
 Tazewell v. Smith, 
 
 
 136 
 
 TeafF v. Hewitt, . 
 
 375, 
 
 399 
 
 Teas's A pp. 
 
 
 263 
 
 Tebbits v. Tilden, 
 
 
 33 
 
 Telfair v. Stead, . 
 
 
 316 
 
 Terrill v. Craig, . 
 
 
 302 
 
 Teirs v. Richardson's Heirs, 
 
 . 8,48 
 
 Thayer v. Lane, . 
 
 246, 
 
 335 
 
 The Bank of Utica v. Mersereau, . 
 
 6 
 
 The Cape Sable Company's 
 
 Case, 
 
 242 
 
 The Governor v. MoEwen, 
 
 
 222 
 
 The New London Bank v. Lee, 312 
 
 321 
 
 The People v. Mercein, 
 
 , 
 
 280 
 
 The Union Bank v. Barker, 
 
 , 
 
 3 
 
 Thomas v. Doub, 
 
 
 346 
 
 V. Ell maker, . 
 
 . 239 
 
 309 
 
 V. Grand Gulf Banl 
 
 c. 
 
 153 
 
 V. Hearn, 
 
 , 
 
 270 
 
 V. Jenks, 
 
 , , 
 
 78 
 
 V. McCormack, 
 
 , , 
 
 111 
 
 V. Phillips, . 
 
 
 197 
 
 V. Sheppard, . 
 
 , 
 
 183 
 
 V. Wood, 
 
 , 
 
 136 
 
 Thomas's Appeal, 
 
 . 
 
 123 
 
 Thomason v. Smithson, 
 
 , 
 
 309 
 
 Thomasson v. Kennedy, 
 
 , 
 
 376 
 
 Thompson v. Adams, . 
 
 , 
 
 269 
 
 V. Berry, . 
 
 , 
 
 197 
 
 V. Bostwick, 
 
 , , 
 
 268 
 
 V. Branch, . 
 
 , , 
 
 32 
 
 V. Brown, . 2 
 
 52, 258 
 
 ,287 
 
 V. Dulles, . 
 
 . 
 
 84 
 
 V. Ebbets, . 
 
 . 
 
 206 
 
 V. Engle, . 
 
 
 12 
 
 V. Eugh, . 
 
 , 
 
 13 
 
 , V. Fisher, . 
 
 . 
 
 228 
 
 V. Hardman, 
 
 , 
 
 231 
 
 V. Jackson, 1 
 
 74, 176 
 
 303 
 
 V. McDonald, 
 
 , , 
 
 317 
 
 V. McKisick, 
 
 , 
 
 31 
 
 V. Morrow, 
 
 , , 
 
 233 
 
 V. Murray, 2 
 
 33, 270 
 
 272 
 
 V. Newhn, 
 
 , , 
 
 335 
 
 V. Patton, . 
 
 
 111 
 
 V. Thompson, 
 
 38 
 
 233 
 
 V. Tod, . 
 
 , , 
 
 84 
 
 Thomson v. Palmer, . 
 
 . 
 
 269 
 
 Thorn V. Coles, . 
 
 . 138 
 
 139 
 
 Thornbrough v. Baker, 
 
 , , 
 
 112 
 
 Thome v. Halsey, 
 
 . , 
 
 360 
 
 Thornton v. Hightower, 
 
 . . 
 
 320 
 
 V. Knox's Ex'ors, 
 
 , 
 
 128 
 
 Threewits v. Threewits, 
 
 , 
 
 43 
 
 Thurman v. Shelton, . 
 
 . 302 
 
 310 
 
 Tibbs V. Barker, . 
 
 
 86 
 
 Tioe V. Annin, . 
 
 , 
 
 113 
 
 Tierman v. Beam, 
 
 
 128 
 
 Tiernan v. Hinman, . 
 
 
 107 
 
 V. Roland, 81, 84, 8 
 
 8, 90, 91, 96 
 
 V. Thurman, . 
 
 
 128 
 
 Tier's Rep. v. Richardson's 
 
 Heirs, 
 
 48 
 
 Tilford V. Emerson, . 
 
 , 
 
 302 
 
 Tillman v. Cowand, . 
 
 , 
 
 154 
 
 Tilman v. Searcy, 
 
 , 
 
 302 
 
 Tilton V. Hunter, 
 
 153 
 
 154 
 
 V. Tilton, . 
 
 86 
 
 168 
 
 Timberlake v. jparish, . 
 
 
 95 
 
 Tindall v. Childress, . 
 
 
 167 
 
 V. Harkinson, . 
 
 
 177 
 
 Tingley v. Cutler, 
 
 
 107 
 
 Titus V. Neilson, 
 
 
 233 
 
 Tobey v. County of Bristol, ? 
 
 7,81 
 
 192 
 
 Tod V. Baylor, . 
 
 233 
 
 235 
 
 Todd V. Moore, . 
 
 , 
 
 61 
 
 Tolson V. Tolson, 
 
 , 
 
 364 
 
 Tomlinson v. Lindley, 
 
 
 363 
 
 V.Ward, . 
 
 338 
 
 392 
 
 Tompkins v. Mitchell, 
 
 , 
 
 128 
 
 Tone v. Brace, . 
 
 , 
 
 194 
 
 Tong V. Oliver, . 
 
 
 196 
 
 Tongue v. Morton, 
 
 , 
 
 157 
 
 Topliff V. Vail, . 
 
 , 
 
 243 
 
 Torill V. Skinner, 
 
 , 
 
 112 
 
 Torrey v. Bank of Orleans, . 
 
 
 61 
 
 V. Buck, . 
 
 , 
 
 179 
 
 Torr's Estate, 
 
 254 
 
 274 
 
 Towle V. Mack, . 
 
 , 
 
 61 
 
 V. Pierce, . 
 
 303 
 
 304 
 
 Towner v. Lane, 
 
 . 
 
 243 
 
 Townley v. Sherborne, 
 
 , 
 
 58 
 
 Townsend v. Auger, . 
 
 , 
 
 321 
 
 V. Houston, 
 
 , 
 
 86 
 
 Townshend v. Duncan, 
 
 
 304 
 
 Tracy, Matter of. 
 
 
 292 
 
 V. Herrick, 
 
 . 
 
 192 
 
 Tradesman's Bank v. Hyatt, 
 
 , 
 
 10 
 
 Traip v. Gould, . 
 
 20 
 
 309 
 
 Trask v. Donaghue, 
 
 , 
 
 37 
 
 Travis v. Waters, 
 
 400, 406 
 
 Traynor v. Brooks, 
 
 
 230 
 
 Tremper v. Barton, . 3! 
 
 ,101 
 
 ,102 
 
 Trescot v. Smyth, 
 
 312, 319 
 
 Trescott v. King, 
 
 
 110 
 
 Trevor v. McKay, 
 
 
 197 
 
 Tripp V. Tripp, . 
 
 
 79 
 
 Tromlinson v. Lindley, 
 
 
 20 
 
 Trotter v. Blocker, 
 
 
 40 
 
 Troup V. Haight, 
 
 
 227 
 
 Troup V. Hurlbut, 
 
 
 153 
 
 V. Sherwood, . 
 
 
 371 
 
 Trowbridge v. Harleston, . 
 
 
 272 
 
 Truebody v. Jacobson, 
 
 
 128 
 
 Truly V. Wanser, 
 
 
 197 
 
 Trustees of the Baptist Association 
 
 
 V. Smith, . 
 
 
 65 
 
 of Huntington v. Nicoll, . 
 
 200 
 
 of Watertown v. Cowen, 
 
 364 
 
 Tucker v. Andrews, . 
 
 
 180 
 
 V. Carpenter, . 
 
 
 356 
 
 V. Cheshire Railroad, 
 
 
 308 
 
 v. Keeler, . ; 
 
 
 114 
 
 V. Oxiey, 
 
 
 243 
 
TABLE OF AMERICAN CASES. 
 
 Ixv 
 
 Tunno v. Trezebant, . 
 Tiirl^y V. Young, 
 Turnbull v. Gadsden, . 
 Turner v. Bissell, 
 
 V. Burrows, 
 
 V.Clay, . 
 
 V. Crebill, 
 
 V. Dickerson, . 
 
 V. Petigrew, . 
 
 V. Turner, 
 Turnipseed v. Cunningham, 
 Turnpike Company t. Allen, 
 
 &o. V, Barnett, 
 Tuttle V. Jackson, . . 
 Tylei; v. Black, . 
 Tyree v. Williams, 
 Tyrrell v. Morris, 
 Tyson v. Watts, . 
 
 243 
 320 
 177 
 239 
 268 
 
 77 
 157 
 
 19 
 
 33 
 389 
 HI 
 226 
 210 
 153 
 177 
 
 84 
 
 251 
 
 77,82 
 
 183, 
 
 48 
 
 282 
 
 403 
 
 189 
 
 21 
 
 33 
 
 3 
 
 , 363 
 
 205 
 
 28,33 
 
 , 153 
 
 . 280 
 
 . 272 
 
 3 
 
 416,417 
 
 173, 269 
 
 . 168 
 
 . 53 
 
 Udall V. Kenney, 
 Underbill v. Dennis, . 
 
 V. Van Cortland, 
 
 Underwood v. Brockman, 
 
 Union Bank v. Geary, . 
 
 V. Baker, . 
 
 V. Barker, 
 
 V Geary, . . 
 
 V. Kerr, . 
 
 Unitarian Society v. Woodbury, 
 
 United States Bank v. Lee, . 
 
 V. Green, 
 
 v. Duncan, 
 
 V. Saline Bank, 
 
 V. Sampeyrac, 
 
 V. Hunter, 
 
 V. Monroe, 
 
 V. Vaugban, . 
 
 Ins. Co. V. Shriver, . 272 
 
 Upham V. Brooks, . . . 317 
 
 Upshaw T. Upshaw, . . 93, 96 
 
 Urmey's Ex'rs v. Woodon, . . 65 
 
 Utica Ins. Co. v. Lynch, 57, 308, 344 
 
 Vail V. Foster, . . . .268 
 
 Valentine v, Farrington, . . 268 
 
 Van Alst V. Hunter, . . . 248 
 
 Van Amringe v. Ellmaker, . . 240 
 
 Vanartsdalen v. Vanartsdalen, . 280 
 
 Vanbuskirk V. Ins. Co. . . 53 
 
 Van Buren V. Olmstead, . 111,118 
 
 Van Cortlandt v. ^eekman, . . 303 
 
 . T. Underbill, . .192 
 
 Vanderveer v. Stryker, . . 335 
 Vandever's Appeal, ... 58 
 
 Van Doren v. Todd, . . .128 
 
 Van Dnzer v. Van Duzer, . . 48 
 
 Van Epps V. Van Dusen, . 48,281 
 
 Van Hook v. Whitlook, . 337, 340 
 
 Van Home v. Fonda, . . 59, 61 
 
 Vanhorn t. Duckworth, . , 334 
 
 Van Houtert's Case, . . . 280 | 
 
 78 
 
 111 
 
 ■ 162 
 
 197 
 
 211 
 
 153 
 
 42 
 
 319 
 
 375 
 
 , 345 
 
 335 
 
 , 312 
 
 , 230 
 
 , 79 
 
 65, 68 
 
 . 268 
 
 Vanmeter v. McFaddin, . 123, 153 
 Vann V. Hargett, . . .312 
 
 Van Pelt V. MoGraw, . . .114 
 Van Reimsdyck v. Kane, . . 363 
 Van Valkinburgh v. Watson, . 287 
 Van Winkle v. Curtis, . .211 
 
 Varick v. Edwards, . . 54, 186 
 
 V. Smith 309 
 
 Vasser v. Vasser, 
 Vattier v. Hinde, 
 Vaughn v. Johnson, 
 
 V. Law, . 
 
 V. Tracy, 
 Vaux V. Parke, . 
 Venable v. Beauohamp 
 Verden v. Coleman, 
 Vermilye Y. Christee, 
 Verplank v. Caines, 
 
 V. Merc. Ins. Co. of N.Y, 
 Vick V. The Mayor of Vioksburg, . 
 V. Troy and Boston R. R. , 
 Vidal V. Girard, . 
 Viele V. Hoag, 
 Vilas V. Jones, . . . 175,319 
 Village of Sen. Falls v. Matthews, 356 
 Villard T. Chovin, . . .286 
 Villines v. Norfleet, . . .61 
 Vliet v. Lowmason, . . .196 
 Vizonneau v. Pegram, ... 46 
 Volentine v. Johnson, . . . 268 
 Vose V. Philbrook, . .323 
 
 Wack V. Sorber, .... 86 
 Wade V. Green, . . . .269 
 V. American Col. Soc, . 65 
 Wadsworth, Matter of, . . 58 
 Wager v. Chew, . . . 267 
 
 Waggoner v. Speck, ... 86 
 Waggstatfe v. Lowerre, . . 40 
 Wailes v. Cooper, . . . 162 
 Wainwright v. Read, . . 90 
 
 Wakeman v. Gillespy, . . 196 
 
 Wakerman V. Giover, . . 315, 363 
 Wallingsford v. Wallingsford, . 45 
 
 Walker t. Butz 157 
 
 V. Crowder, . . .287 
 V. Dunlop, . . .177 
 
 V. Gilbert, . . 151, 153 
 V. Hallett, . . .346 
 V. House, . . . 243 
 V. Robbins, . . .197 
 V. Shepardson, . .211 
 
 V. Trott 243 
 
 V. Walker, . . .103 
 
 Walker's Estate, . 254, 261, 263, 275 
 
 Wall V.Cloud, . . . .211 
 
 V.Hill, . . . .303 
 
 V. Arrjngton, . . 85, 168 
 
 Waller v. Armistead, . . .180 
 
 V. Thompson, . . .179 
 
 Wallace v. Coston, ... 46 
 
Ixvi 
 
 TABLE OF AMERICAN" CASES. 
 
 Wallace v. Duffield, . 
 
 32, 33 
 
 Welles V. River Raisin R. R. Co. 334 
 
 V. Duncan, . 
 
 . 360 
 
 Wellington v. Gale, . 
 
 . 114 
 
 V. McCuUough, 
 
 . 33 
 
 Wells v. Moore, . 
 
 
 . 233 
 
 V. McVey, 
 
 . 211 
 
 v. Strange, . 
 
 
 . 310 
 
 Wallington's Est., 
 
 . 61 
 
 Welsh v. Usher, . 
 
 
 . 123 
 
 Wallis V. Long, . 
 
 . 110 
 
 Wemple v. Stewart, . 
 
 
 . 168 
 
 V. Thornton, . 
 
 . 58 
 
 Wendell v. Van Rensselaer, 
 
 . 312 
 
 Walraven v. Lord, 
 
 . 28 
 
 Matter of, . 290, 
 
 291, 292 
 
 Walsh V. Smith, . 
 
 . 397 
 
 V. Wadsworth, 
 
 . 153 
 
 Walton V. Cody, . 
 
 . 121 
 
 Wesley v. Thomas, . 
 
 
 167, 172 
 
 V. Walton, 
 
 . 363 
 
 West V. Belches, . 
 
 
 . 268 
 
 Wamble v. Battle, 
 
 . 128 
 
 V. Bank of Rutland, 
 
 
 . 257 
 
 Waples V. Waples, 
 
 . 193 
 
 V. Beanes, . 
 
 
 . 175 
 
 Ward V. Hill, . 
 
 . 376 
 
 V. Flanagen, 
 
 
 . 363 
 
 V. Jewett, . 
 
 . 383 
 
 V. Hall, . 
 
 
 . 346 
 
 V. Seabry, . 
 
 . 324 
 
 V. Patton, . 
 
 
 . 167 
 
 V. Van Bokkelen, 
 
 . 196 
 
 V. Randall, 
 
 
 312,316 
 
 Warden v. Eichbaum, 
 
 . 290 
 
 V. Rouse, . 
 
 
 . 196 
 
 Ware v. Richardson, . 
 
 . 363 
 
 V. Walker, . 
 
 
 . 210 
 
 Warfield v. Warfield, . 
 
 . 231 
 
 V. Williams, 
 
 
 . 344 
 
 Waring v. Cram, . 
 
 . 246, 356 
 
 Westbrook v. Comstock, 
 
 
 . 281 
 
 \. Suydam, 
 
 8 
 
 V. Harbeson, 
 
 
 . 85 
 
 Warley v. Warley, 
 
 . 263, 275 
 
 Western Ins, Co. v. Eagle Fire Ins.Co. 335 
 
 Warner v. Conant, 
 
 . 197 
 
 R. R. Co. T. Babcock 
 
 , 84, 85 
 
 V. Daniels, 
 
 20, 177 
 
 Reserve Bank v. Stryker, 347 
 
 Warren v. Copelin, 
 
 . 53 
 
 Westerman v. Means, . 
 
 . 88 
 
 V. Sproule, 
 
 . 364 
 
 Westervelt v. Haff, 
 
 
 . 157 
 
 Washburn v. Goodman, 
 
 . 246 
 
 Weston V. Foster, 
 
 
 . 230 
 
 Washington v. Tait, . 
 
 . 270 
 
 Wetmore v. White, . 
 
 
 . 86 
 
 University v. 
 
 Green, 218 
 
 Wetzel v. Sponsler's Ex'rs, 
 
 
 . 268 
 
 Waterman v. Hunt, . 
 
 . 243 
 
 Wharf V. Howell, 
 
 
 . 112 
 
 Waters v. Howard, 
 
 33, 77, 88, 95 
 
 Wheat V. Moss, . 
 
 
 . 356 
 
 V. Lemon, 
 
 . 191 
 
 Wheatley v. Calhoun, . 
 
 
 . 233 
 
 T. Riley, . 
 
 . 269 
 
 Wheeland v. Swartz, . 
 
 
 . 112 
 
 V. Travis, 
 
 . 87 
 
 Wheeler v. Bates, 
 
 
 . 117 
 
 V. Tazewell, . 
 
 . 44 
 
 V. Clinton Co. Ban 
 
 ^, 
 
 . 310 
 
 Watkins v. Collins, 
 
 . 174 
 
 ■V. Smith, 
 
 
 . 65 
 
 Watson v. Bagaley, . 
 
 . 31 
 
 Whelan r. Whelan, . 
 
 
 . 183 
 
 v. Bothwel), . 
 
 . 248 
 
 Whilden V. Whilden, . 
 
 
 . 95 
 
 V. Cox, . 
 
 . 310 
 
 Whillock V. Hale, 
 
 
 . 230 
 
 v. Goodwin, , 
 
 . 363 
 
 Whipple V. Dow, 
 
 
 . 287 
 
 v. Hunter, 
 
 . 208 
 
 T. McClure, . 
 
 
 . 183 
 
 V. Wells, 
 
 . 128, 157 
 
 V. Van Rensselaer 
 
 
 . 364 
 
 Watt V. Watt, . 
 
 . .113 
 
 White V. Banks, . 
 
 
 267, 269 
 
 Watts V. Gayle, . 
 
 . 316,319 
 
 V. Booth, . 
 
 
 . 211 
 
 V. Steele, . 
 
 . 287 
 
 V. Brown, 
 
 
 . 118 
 
 V. Waddle, 
 
 . 84 
 
 V. Bullock, 
 
 
 . 402 
 
 Waugh V. Mitchell, 
 
 . 246 
 
 V. Buloid, . 17, 
 
 IS 
 
 , 19, 402 
 
 Wayland v. Tucker, . 
 
 . 268 
 
 V. Carpenter, . 
 
 
 . 32 
 
 Weaver v. Shryock, . 
 
 . 172 
 
 V. Cox, . 
 
 
 . 179 
 
 Webb V. Bowman, 
 
 . 167 
 
 V. Crew, . 
 
 
 . 363 
 
 v. Bowman's Ex'rs 
 
 . . 167 
 
 V. Dingley, 
 
 
 . 107 
 
 V. Evans, . 
 
 . 95 
 
 V. Dougherty, . 
 
 
 . 243 
 
 V. Pell, . 
 
 20, 416 
 
 V. Fisk, . 
 
 
 65, 69 
 . 211 
 
 V. Portland Manufs 
 
 10. Co. . 211 
 
 V. Forbes, 
 
 
 V. Robinson, 
 
 . 128 
 
 V. Hall, . 
 
 
 . 310 
 
 Weed V. Smull, . 
 
 . 226, 337 
 
 V. Morrison, 
 
 
 . 347 
 
 Webster v. Maddox, . 
 
 . 153 
 
 V. Parker, 
 
 
 . 285 
 
 Weir V. Tannehill, . 
 Weirich V. De Zoya, . 
 
 . 31 
 . 197 
 
 V. Thompson, . 
 V. Trotter, 
 
 
 . 79 
 . 191 
 
 Wellborn v. Tiller, . 
 
 . 310 
 
 V. Turner, 
 
 
 . 319 
 
TABLE OF AMERICAK CASES. 
 
 Ixvii 
 
 White V. Whitney, 
 
 114 
 
 Williams v. Washington, . .272 
 
 V. Williams, 
 
 128 
 
 V. Williams, 
 
 16, 360 
 
 V. Yaw, . 
 
 304 
 
 V. Wilson, 
 
 . 246 
 
 Whitehead v. Brown, . 
 
 168 
 
 Williamson v. Branch Bank, . 251 
 
 Whitehorn v. Hines, . 
 
 184 
 
 V. Hodgson, . . 240 
 
 Whitehurst v. Barker, 
 
 30 
 
 V. Morton 
 
 . 251 
 
 Whitenack, Matter of, . 
 
 292 
 
 v. Williamson, . .103 
 
 Whitesides v. Cannon, 
 
 46 
 
 V. Wilson 
 
 . 241, 243 
 
 V. Darris, . 
 
 48 
 
 Willing V. Brown, 
 
 . 229 
 
 V. Gr«enlee, . S 
 
 4, 183 
 
 V. Peters, 
 
 * . .136 
 
 Whitewater, &c. Co. v. Coraegys, 
 
 204 
 
 Willis V. Henderson, 
 
 . 363 
 
 Whiting V. Bank of U. S. . 
 
 416 
 
 V. Willis, . 
 
 . 292 
 
 V. Beebe, 
 
 363 
 
 Wilson V. Allen, . 
 
 . 364 
 
 T. Gould, 
 
 33 
 
 V. Amy, . 
 
 . 95 
 
 Whitney v. French, . 
 
 ni 
 
 V. City Bank, 
 
 . 323 
 
 V. Mayo, . 312, 3S 
 
 0,321 
 
 V. Drumrite, 
 
 . no 
 
 V. Whitney, . 
 
 310 
 
 V. Hamilton, 
 
 . 312 
 
 Whitredge v. Durkee, . 
 
 268 
 
 V. Mace,. 
 
 . 196, 356 
 
 Whittick V. Kane, 
 
 . Ill 
 
 V. Stotley, 
 
 . SOS 
 
 Whittonv.' Smith, . . 24 
 
 U. 242 
 
 V. Troup, 
 
 . 6, 110, 113, 121 
 
 Wiokes V. Clark, . 
 
 . 43 
 
 V. Wallett, 
 
 220, 221, 222 
 
 Wikoff V. Davis, . 
 
 . 270 
 
 V. Matter of. 
 
 . 285 
 
 V. Sniffer, 
 
 . 11 
 
 Wilt V. Franklin, 
 
 . 37 
 
 Wilbanks v. Duncan, . 
 
 . 379 
 
 Wilton V. Harwood, 
 
 . 86 
 
 Wilcox V. Mills, . 
 
 . 310 
 
 Winborn v. Gorrell, 
 
 . 157, 162 
 
 V. Wilkinson, . 
 
 . 397 
 
 Winder v. Diffenderffe 
 
 r, . .55 
 
 Wilde V. Fox, . 
 
 . 86 
 
 Wingate v. Dale, 
 
 . 86 
 
 V. Jenkins, 
 
 227 
 
 Wingart v. Fry, . 
 
 . 84 
 
 Wilderman v. Baltimore, 
 
 65 
 
 Wingfield v. Crenshav 
 
 V, . . 211 
 
 Wilder v. Keeler, . 243, 2£ 
 
 2,257 
 
 Winn V. Elliott, . 
 
 . 233 
 
 Wilhelm v. Folmer, 
 
 33 
 
 V. Albert, . 
 
 . 363, 412 
 
 V. Lee, 
 
 117 
 
 Winne v, Reynolds, 
 
 . 84 
 
 V. Wilhelm, . 
 
 231 
 
 Winnipiseogee Lake C 
 
 0. V. Wors- 
 
 Wilkes V. Rogers, 
 
 287 
 
 ter, . 
 
 . 210,302 
 
 V. Henry, 
 
 342 
 
 Winship V. Pitts, 
 
 . 208 
 
 Wilkin V. Wilkin, . . '2C 
 
 0,309 
 
 Winslow V. Chiffelle, 
 
 . 246 
 
 Wilkins v. French, 
 
 114 
 
 Wintermute v. Snyder 
 
 . 168, 170 
 
 V. Sears, . 
 
 113 
 
 Winters v. Henderson 
 
 . 270 
 
 Wilkinson v. Wilkinson, a minor. 
 
 81 
 
 Wise V. Lamb, . 
 
 . 376 
 
 Williams's Case, . . . 28 
 
 5, 286 
 
 Wisely v. Findlay, 
 
 . 230 
 
 Williams V. Beard, 
 
 364 
 
 Wiser v. Blachly, 
 
 . 316, 399 
 
 V. Berry, 
 
 196 
 
 Wisner v. Barnett, 
 
 . 303 
 
 V. Brown, . 
 
 153 
 
 Wiswall V. McGowan 
 
 90, 91 
 
 V. Cox, 
 
 233 
 
 Withers v. Yeadon, 
 
 . 30 
 
 V. Craig, 
 
 270 
 
 Witman v. Lex, . 
 
 65, 69 
 
 V. Hall, 
 
 196 
 
 Witter v. Richards, 
 
 . 243 
 
 V. Harden, . 
 
 20 
 
 Woddrop V. Price, 
 
 . 243 
 
 V. Harrington, 
 
 285 
 
 Wolbert v. Harris, 
 
 . 243 
 
 V. Helme, 
 
 270 
 
 Wolf V. Wolf, . 
 
 . 334 
 
 V. Hubbard, . 
 
 335 
 
 Womble v. Battle, 
 
 . 128 
 
 V. Jenkins, . . 35 
 
 4,355 
 
 Wood v. Barringer, 
 
 . 302 
 
 V. Lockwood, 
 
 197 
 
 V. Burnham, 
 
 . 40 
 
 V. Maitland, . 
 
 364 
 
 v. Clute, . 
 
 . 230 
 
 V. Otey, 
 
 156 
 
 V. Cone, . 
 
 33, 138 
 
 V. Philpot, . 
 
 363 
 
 V. Gault, . 
 
 . 241 
 
 V. Powell, 
 
 184 
 
 V. Patterson, 
 
 . 356 
 
 V. Presby. Soc. 303, 30 
 
 3,335 
 
 V. Shepherd, 
 
 . 192 
 
 V. Roberts, . 
 
 128 
 
 V. Wood, . 
 
 . 95 
 
 V. Savage Manufact. Co 
 
 
 Woods V. Wallace, . 
 
 . 112 
 
 16,227,22 
 
 3,346 
 
 Woodcock V. Bennet, . 
 
 77, 305, 379 
 
 V. Stratton, . 
 
 123 
 
 Wooden v. Hairland, . 
 
 . 172 
 
Ixviii 
 
 TABLE OF AMERICAN CASES. 
 
 Woodfolk V. Blount, . . .151 
 
 Woodridge v. Wilkin, . . . 246 
 
 Woodrun v Kirkpatrick, . . 399 
 
 Woods V. Farmere, . . 37, 1 53 
 
 V. Moirell, . 10, 306, 344 
 
 Woodson V. Palmer, . . .392 
 
 Woodward v. Sohatzell, . . 360 
 
 v. Wood, . . 314, 315 
 
 Woodworth v. Rogers, . .356 
 
 V.Wilson, . .317 
 
 Woolstoneoraft, Matter of, . .280 
 
 Wooraack v. Rogers, . . .174 
 
 Wootten T. Buroh, . . 8, 308, 344 
 
 Work V. Harper, . . .153 
 
 Works v. Junet. R. R. . . 208 
 
 Wortiiley v. Wormley, . . 156 
 
 Worth T. McAden, ... 37 
 
 Worthy T. Johnson, . . .310 
 
 Worthington T. Lee, . . 317, 333 
 
 Wotlen V. Copeland, . . . 230 
 
 Wragg's Rep. t. Compt. Gen. . 128 
 
 Wright V. Arnold, . . . 1 84 
 
 V. Dame, . . . 303 
 
 V. Delafield, . . .168 
 
 V. Grist, .... 356 
 
 V. Linn, . . . .68 
 
 T. Marsh, . . . 230 
 
 V. Meek,. . . . 408 
 
 T. Trustees of Meth. Epis. 
 
 Church, . . 139, 277 
 
 T. Wilson, . . 79, 174 
 
 Wright T. Wright, 
 Wyatt V. Elam, . 
 Wyche v. Green, 
 WyckoffT. SniiFen, 
 Wynn v. Wilson, 
 Wynne T. Tunstall, 
 Wyse v. Smith, . 
 
 Yancy v. Fenwiok, 
 
 V. Green, . 
 Yard v. Patton, . 
 Yates T. Donaldson, 
 
 T. Monroe, 
 
 T. Tisdale, 
 Yeates v. Pryor, . 
 Yestman T. Woods, 
 York V. Gregg, . 
 Young T. Bampass, 
 
 T. Bilderback, 
 
 y. Frost, . 
 
 V. Keogh, . 
 
 T. Lyons, . 
 
 T. Pate, . 
 
 Zane's Will, 
 Zeigler v. Eckert, 
 T. Long, . 
 Zeiter v. Bowman, 
 
 T. Zeiter, . 
 Zentmeyer v. Mittower, 
 
 55, 311,364 
 153 
 79 
 10 
 197 
 231 
 261 
 
 303 
 85 
 269 
 269 
 314 
 203 
 177 
 246 
 177 
 179 
 315 
 90, 232 
 285 
 269, 319 
 312 
 
 65 
 106 
 270 
 157 
 106 
 128 
 
THE 
 
 DOCTRINE OF EQUITY. 
 
 mTRODUCTIOIf. 
 
 The subject of the present Treatise is the prerogative 
 jurisdiction of the Great Seal for giving effect to certain 
 civil rights, technically called Equities, where the ordi- 
 nary 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 Kegis. 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 Chancery, called an original writ, di- 
 rected 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 ori- 
 ginal writs in personal actions is now abolished. But 
 such a writ was formerly essential to the institution of 
 
 4 
 
50 ADAMS'S DOCTEINE OF EQUITY. 
 
 any action in the superior Court 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 the Sovereign 
 as a branch of the prerogative, and to have been natu- 
 rally intrusted to the Lord Chancellor as the minister in 
 whose custody the Great Seal was placed.' The 
 
 L V V "Y I ■• • 
 
 -J *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 eifectual 
 remedy, where the remedy at common law was imper- 
 fect, but not, as has been sometimes erroneously sup- 
 posed, that of creating a right which the common law 
 had denied. 
 
 The existence of this prerogative or equitable juris- 
 diction 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, established for en- 
 forcing payment of debts and duties to the King, and 
 incidentally administering justice to the debtors and ac- 
 countants to the Crown, was, until 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 pecuhar Courts of appeal, 
 
 ' 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. 
 ' Blitf. 6, 50, 151. 
 
INTRODUCTION. 61 
 
 and without any appellate jurisdiction in the Court of 
 Chancery. If, however, a suit be commenced in those 
 Courts, where the cause of suit is without their jurisdic- 
 tion, or where by reason of the limited jurisdiction of 
 the Court the defendant cannot have complete justice, 
 the defendant, before decision of the suit, may file a bill 
 in the High Court of Chancery, showing the incompe- 
 tency of the inferior Court, and praying a special writ 
 of certiorari to remove the cause into the Court of Chan- 
 cery. The principal inferior jurisdictions in England 
 which have cognizance of equitable cases, are those of 
 the Counties of 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 jurisdic- 
 tion, but these Courts are now abolished.' 
 
 The earliest instances which have been hitherto pub- 
 lished of the exercise *of the prerogative juris- 
 diction of the Great Seal, are found in a series '- -^ 
 
 of Chancery records, commencing with the reign of 
 Richard 2, and ending with that of Elizabeth, which 
 was published in 1827, 1830, and 1832, by the Record 
 Commissioners.^ 
 
 Some of the petitions contained in this collection ap- 
 pear to have been merely presented to the Chancellor, 
 as the official framer of ordinary writs, to obtain a suit- 
 able one for the plaintifi"s case; others, especially during 
 the reigns of Edward 4, Henry 6, and Henry 8, are for 
 a writ in the nature of a habeas corpus to have the com- 
 
 ' Mitf. on Pleading, 6, 50, 151; 1 Daniel's Chancery Practice, 509; 
 1 Maddock'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. 
 
52 ADAMS'S DOCTRIJSTE OF EQUITY. 
 
 plainant released from an illegal 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 appro- 
 priate redress. 
 
 In many cases a special ground is alleged for calhng 
 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 abounding in riches, and a great maintainer 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 restrained 
 by injunction fr6ra 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.'" 
 
 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 
 
 _ ' Goddard V. Ingepenne, 1 Chan. Cal. viil. ; Thomas v. Wyse, lb. 
 xiv.; Bell v. Savage, lb. xiv.; Eoyal v. Gavter, lb. csxx. 
 
INTRODUCTION. 53 
 
 the present jurisdiction of *the Court, to have 
 been based on the principle of giving an effi- '- ' J 
 cacious remedy for a right existing at law, and many- 
 instances occur in the records where the ordinary doc- 
 trines of modern equity are brought forward 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 enforcing conveyances by feof- 
 fees 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 in- 
 toxicating the plaintiff;^ a bill by a tithe-owner to ob- 
 tain payment for his tithes;^ a bill stating that the 
 plaintiff had recovered her land at law, but that the de- 
 fendant continued vexatiously to harass her and seeking 
 to have him restrained;^ 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 release to 
 apply to other matters, and praying an injunction 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 a bill for discovery of 
 title deeds ;^ and a bill for specific performance of a con- 
 tract.^ 
 
 It must not, however, be supposed that in all the pe- 
 titions to the Chancellor contained in these records the 
 
 ^ Stonehouse v. Stanshaw, 1 Ch. Cal. xxix. 
 ^ Arkenden v. Starkey, lb. xxxv. 
 ' Freeman v. Pontrell, lb. xlii. 
 
 * Cobbethorn v. Williams, lb. li. 
 
 * Vavasour v. Chadwiek, lb. xciii. 
 'cEarl of Oxford v. Tyrrell, lb. cxx. 
 ' Baker v. Parson, 2 Chan. Gal. 1. 
 
 ' Tyngelden v. Warham, lb. liv. 
 
54 ADAMS'S DOCTRINE OP EQUITY. 
 
 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 resisted on that ground. Thus, for ex- 
 ample, in one of the cases already referred to, the bill, 
 after mentioning the subtraction of the plaintiff's tithes, 
 complains also that the defendant had violently driven 
 away his sheep, and the defendant, after answering the 
 ...-, former charge, says with reference *to the 
 L -■ 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 defendant saith that 
 he never took nor drove away any sheep of the said 
 complainant." And in a subsequent 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 King's law of this land, to be deter- 
 mined 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 
 
 ' Arkenden v. Starkey, 1 Ch. Cal. xxxv. ; Harry v. Lyngeyn, lb. 
 
INTRODUCTION. 55 
 
 within the jurisdiction of the Chancellor may admit of 
 some doubt. That they are not so now is unquestion- 
 able ; 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 autho- 
 rity.^ 
 
 The first instance of this opposition occurs in the 13 th 
 year of Richard 2 (A.D. 1389), when the Commons pe- 
 . titioned that no man might be brought before the Chan- 
 cellor or the King's Council for matters remedial at the 
 common law. But the only answer given by the King 
 was, that "he would keep his regalitj' as his predeces- 
 sors 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 sta- 
 tute, which authorized the Chancellor to give costs to 
 the defendant, where writs of subpoena should have 
 been obtained on untrue suggestions.' In the first year 
 of Henry 4 (A.D. 1399), a similar petition was again 
 presented, 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 
 have remedy."* In the fourth *year of the 
 same reign (A.D. 1402), the Commons again L ^^^-^ 
 made the usual complaint, alleging that, according 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 dis- 
 tinctly asserted his own jurisdiction ; and his answer 
 was, that " he would desire his officers to abstain more 
 from sending for his subjects than they had hitherto 
 
 ' Rotuli Parliamentomtn ut et Petitiones et Placita in Parliamento, 
 vol. iii. 1377-1411; vol. iv. 1413-1436. 
 
 = 3 Kot. Pari. 266. » Ibid. 323. " Ibid. 446. 
 
56 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 inspection 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 terras, praying 
 that the writ of subpoena might not issue for matters 
 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 plaintifi" gave proper secu- 
 rity 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 bills any trace of 
 a jurisdiction to give relief, on the ground that the strict 
 
 ^ 3 Kot. Pari. 506. = 4 Ibid. 84, 156. 
 
INTRODUCTION. 57 
 
 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 com- 
 plaints of the Commons would surely have been, not 
 that decisions were made by an *irregular ^^ 
 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, " unless 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 according to law, but in which, for some 
 reason or other, the common law remedy was inef- 
 fectual. 
 
 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 infringe- 
 ment 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 execution to 
 the sheriff, requiring him to give effect to the judgment 
 obtained. If this redress be sufficient there is no juris- 
 diction in equity; and, in accordance with this prin- 
 ciple, it is held that the Court of Chancery cannot 
 assess damages, or decree possession of land or payment 
 of rent under a legal title ; for in the one case the 
 
58 Adams's doctrine of equity. 
 
 assessment may be made by a jury, in the other the 
 possession may be obtained by ejectment, and the inter- 
 mediate rent may be recovered 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 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 
 pj^ . which *may be termed quasi-criminal, such 
 
 -' as a mandamus, a quo warranto, or the en- 
 forcement of a penalty or forfeiture, there is no jurisdic- 
 tion in equity (unless conferred by special enactment), 
 either to compel discovery or to afford relief.' 
 
 The jurisdiction over civil rights is founded, as we 
 have seen, on the writ of subpoena ; and, in accordance 
 with the requirements of that writ, is exerted for a 
 double purpose, viz. : 1. For discovery, compelling 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 
 
 • Story on Plead. 553; Re Hertford, 1 Hare, 584; Attorney-General 
 V. Lucas, 2 Hare, 566. 
 
INTRODUCTION. 59 
 
 requires a defendant to discover the truth of the plain- 
 tiff'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 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 ; and 
 thirdly, that oflficial persons must not disclose matters of 
 State, the publication of which may be prej udicial to th-e 
 community. 
 
 Subject to these restrictions, every competent defen- 
 dant in equity must answer on oath as to all facts mate- 
 rial 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 re- 
 quired by the plaintiff, to set forth a list of all docu- 
 ments in his possession or power from which similar 
 discovery can be obtained ; and if the possession of such 
 documents and their character as fit subjects of dis- 
 covery can be shown from this answer, he must permit 
 the plaintiff to inspect and copy them. 
 
 The jurisdiction thus exercised for enforcing discovery 
 is available in aid of proceedings of civil relief, whether 
 such relief be asked from the Court of Chancery, or from 
 any other public tribunal which is itself unable to en- 
 force discovery. If the consequent relief *be 
 attainable in equity, a prayer to that effect is •- " -■ 
 introduced in the bill, which is then termed a bill for 
 relief, or more correctly for discovery and relief If it 
 
60 ADAMS'S DOCTRINE OF EQUITY. 
 
 be attainable in a different Court, the mere fact that dis- 
 covery is requisite 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 procurement of 
 evidence to be used elsewhere, without itself deciding 
 on the result, viz., in suits for a commission to examine 
 witnesses abroad, and in suits for the perpetuation of 
 testimony where the subject-matter cannot be imme- 
 diately investigated ; and for granting, in aid either of 
 its own proceedings or of a proceeding elsewhere, the 
 peculiar remedy termed an examination cle bene 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 decided in accordance with the legal 
 right, if the contested 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 supplemental 
 aid of equity, he must give effect to all equitable rights 
 in his adversary respecting the subject-matter of the 
 suit. 
 
 The cases of inadequacy at common law, which origi- 
 nate the supplemental jurisdiction of equity, may be 
 
INTRODUCTION". 61 
 
 conveniently divided under two heads, viz. : 1. Where 
 the Courts of ordinary jurisdiction cannot enforce a 
 right ; and 2. Where they cannot administer it. 
 
 The equities under the first head of this division, viz., 
 where the Courts of ordinary jurisdiction cannot enforce 
 a right, are those for performance of trusts and con- 
 tracts ; for election between inconsistent benefits ; for 
 completion of gifts on meritorious consideration in favor 
 of the donor's intention 'after his death ; for giving eflect 
 to *discharges by matter in pais of contracts ... 
 
 under seal ; for relief against penalties and ^ -■ 
 
 forfeited mortgages ; for re-execution or correction of in- 
 struments which have been lost or erroneously framed ; 
 for setting aside transactions which are illegal or frau- 
 dulent, or which have been carried on in ignorance or 
 mistake of material 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 essential : 
 first, that the ownership conferred be coupled with a 
 trust, either declared by the parties or resulting by pre- 
 sumption of law ; and secondly, that it be accepted on 
 those terms by the trustee. The consequence of its 
 creation and acceptance is, that the property is subjected 
 
62 ADAMS'S DOCTRINE OF EQUITY. 
 
 to a double ownership, an equitable ownership in the 
 cestui que trust, and a legal ownership in the trustee. 
 
 The equitable ownership 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 
 generally 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, which exists between the two 
 forms of ownership, is not free from exception. The 
 legal rules of interpretation, though uniformly applicable 
 to an executed trust, i. e., a trust of which the scheme 
 has in the outset been completely declared, are not ap- 
 plied with equal stringency in determining the limita- 
 tions of an executory trust, i. e., a trust where the ulti- 
 mate 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 singular 
 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 
 r* , ,-,-1 *s'ich property to be made 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 ade- 
 quate 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. 
 
INTRODUCTION". 63 
 
 The means by which an equitable ownership is trans- 
 ferred 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 doctrine that personal 
 property passes at law by mere delivery, which, where 
 an equitable interest is transferred, may not be practi- 
 cable ; and, therefore, in order to pursue as nearly as 
 possible the analogy of law, it is required that the assign- 
 ment of an equitable 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 de- 
 livery ; and the character of the grantor's interest, whe- 
 ther legal or equitable, does not affect the terms of his 
 deed. 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 negotiable securi- 
 ties, 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 assign- 
 ment or agreement to assign, perfected by notice to the 
 party liable. 
 
 The legal ownership of the trustee confers on him at 
 laiw an obsolute 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 continues ; 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 
 
64 ADAMS'S DOCTRINE OF EQUITY. 
 
 object of personal benefit. If he perform his duties, he 
 may claim indemnity against all personal loss; but if he 
 fail in their performance, 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 
 '- J has 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 lia- 
 bility. 
 
 Besides the ordinary trusts which we have just con- 
 sidered, there is another class of trusts — those for chari- 
 table 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 pur- 
 poses. But there are two principal distinctions; the one, 
 that a charitable trust is not affected 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 out- 
 set, 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 jurisdiction of equity for superintending a chari- 
 table trust is called into action by information of the 
 Attorney-General, suing on behalf of the Crown. It 
 extends, in the case of unincorporated charities, to their 
 internal administration as well as to the mana2;ement of 
 their estates. But in the case of eleemosynary corpora- 
 tions it is confined to the latter object; and the internal 
 administration of such charities, together with the elec-- 
 tion and amotion of corporators, is exclusively subject 
 
INTEODUCTION. 65 
 
 to the jurisdiction of a visitor. In addition to the juris- 
 diction of the Court of Chancery over charities, a spe- 
 cial jurisdiction was created by 43 Eliz. c. 4, called the 
 Statute of Charitable Uses, to be exercised by commis- 
 sioners appointed by the Crown. But their jurisdiction 
 has now fallen into disuse. And there is also a sum- 
 mary 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 con- 
 tract involves the consideration, not merely of what is 
 technically termed specific performance, but also of the 
 doctrines of election, of meritorious or imperfect consi- 
 deration, 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 con- 
 tract 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, <- -I 
 it is essential that the contract shall have been made for 
 valuable consideration, and that its enforcement in spe- 
 cie be practicable and necessary. 
 
 The first requisite is, that the contract be made for 
 valuable consideration. For so long as a promise rests 
 in fieri, there is not, in the absence of such considera- 
 tion, any equity to insist on its performance. It is 
 otherwise if the promise has been already executed, 
 either by the transfer of the legal ownership, or by the 
 creation of a final trust. The exact line of demarca- 
 tion, where the contract ceases to be an executory 
 agreement and becomes a perfected trust in equity is often 
 difiicult to distinguish. But the principle itself is suffi- 
 ciently clear. If the donor has perfected his gift in the 
 
 5 
 
66 ADAMS'S DOCTEINE OF EQUITY. 
 
 way which he mtended, so that there is nothing left for 
 him to do, and nothing which he has authority to coun- 
 termand, the donee's right is enforceable as a perfected 
 trust, and the consideration is immaterial. If, on the 
 contrary, the transaction is incomplete, and its final com- 
 pletion 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 consideration. 
 
 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 perform, or which the 
 Court is unable practically to enforce, performance will 
 not be decreed ; and the same result will frequently fol- 
 low where enforcement is sought against the defendant, 
 but a corresponding performance by the other party can- 
 not be secured. 
 
 The third requisite is, that the enforcement in specie 
 be necessary as well as practicable ; and therefore, 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 determining on its necessity, 
 the effect on both parties will be taken into considera- 
 tion ; and specific performance may be refused, if there 
 has been any unfairness on the part of the plaintiff, or 
 if the defendant has entered into the contract by mis- 
 take, 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 which 
 pj. at first sight appear inconsistent *with them and 
 L ^ "J 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 
 
INTRODUCTION. 67 
 
 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 convey- 
 ance with compensation for defects. The wisdom of 
 permitting any deviation 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 perform- 
 ance of a contract, and not pecuniary compensation for 
 its- breach, is the equitable measure of redress. 
 
 The first of these subordinate equities is that of en- 
 forcing 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 j and, so long as 
 the contract remains in fieri, it is alike ineffectual at law 
 and in equity. It sometimes, however, happens that a 
 contract which is still in fieri at law, has been already 
 performed by construction of equity ; for if it is one of 
 which specific performance 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 de- 
 creed 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 
 
68 ADAMS'S DOCTRINE OF EQUITY. 
 
 the nature of a title, so that if a substantial ownership 
 exists, though the title be not fully cleared on the ap- 
 pointed day, specific performance may be properly de- 
 creed. 
 
 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 lite- 
 rally performed in toio, whether by reason of an unex- 
 pected failure in the title to part, of inaccuracy in the 
 terms of description, or of diminution in value by a lia- 
 bility to a *charge. The principle of this equity 
 L ^'^"J appears to be, that where the property contrac- 
 ted for can be substantially transferred, it is against 
 conscience to take advantage of small circumstances of 
 variation. The equity for performance with compensa- 
 tion may be enforced by 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 compen- 
 sation, 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 performance 
 is given, even in the absence of a contract, in the case 
 of title deeds or specific chattels of peculiar value, de- 
 tained from the legitimate owner, by directing them to 
 be delivered up or secured. 
 
 The equities of election and of meritorious or imper- 
 fect consideration are closely connected with the prin- 
 ciple 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 extended 
 by parity of reasoning to cases where a benefit has been 
 
INTRODUCTION. 69 
 
 conferred as the consideration for an act, and knowingly 
 accepted, although the party so accepting it may not be 
 bound by an actual contract, or by a condition of per- 
 formance annexed to the gift. The equity of election 
 is analogous to this : it applies, 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 eJQfected 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 pro- 
 perty belonging to A. In this case there is no contract 
 by A. to relinquish his own property, nor is there any 
 condition annexed to the testator's gift, which requires 
 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 there- 
 fore elect between the two, and must either relinquish 
 his own property or compensate the disappointed donee 
 out of the property bequeathed. 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 
 forfeiture of the property devised. 
 
 *The doctrine of meritorious consideration 
 originates in the distinction between the three L ^ ^^J 
 classes of considei-ation, 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 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 
 
70 ADAMS'S DOCTRINE OF EQUITY. 
 
 a wife and children, or persons towards whom the party 
 promising has placed himself in loco parentis. This 
 class of consideration is not distinguished at law from 
 mere voluntary bounty, but is to a modified extent re- 
 cognized 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 
 favor he has altered his intention, yet, if a gift on meri- 
 torious consideration be intended, but imperfectly exe- 
 cuted, and the intention remain unaltered at the death 
 of the donor, there is an equity to enforce the intended 
 gift against persons claiming by operation of law, Avith- 
 out an equally meritorious claim. The principal appli- 
 cations 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 remainderman. 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 have reasonably been meant in satisfac- 
 tion 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 construc- 
 tion, may be construed diiFerentlj where mferitorious 
 consideration exists ; e. g., a purchase made by one per- 
 son in the name of another may be construed an ad- 
 vancement in favor of a child, instead of a resulting 
 trust for the purchaser. A legacy may be construed a 
 provision instead of mere bounty, and may, as such, 
 bear interest from the testator's death. 
 
 The equities for giving effect to discharges by matter 
 m 2^ais of contracts under seal, and for relief against 
 penalties and forfeited mortgages, are the converse to 
 
INTRODUCTION. 71 
 
 the equity for specific performance. The first of these 
 equities originates in the rule of law, that an agree- 
 ment under seal, technically termed an agreement by 
 speciality, can only *be avoided by another 
 speciality, and that it is unaffected by matter ■- -^ 
 in pais which would operate as a discharge of a simple 
 contract. In equity, the rule is 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 cancella- 
 tion of the speciality. The most ordinary application 
 of this equity is in favor of sureties, where a guarantee 
 has been given under seal, and the creditor, without the 
 surety's consent has discharged or modified the princi- 
 pal'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 natu- 
 rally led to the conclusion that the annexation of a 
 penalty did not alter their character; and, iti accord- 
 ance with this view, restrained 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 sus- 
 tained. 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 
 
72 ADAMS'S DOCTRINE OF EQUITY. 
 
 is for payment of money, so that the damage may be 
 certainly measured by interest. 
 
 The equity for relief against penalties applies most 
 extensively to the case of forfeited 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. 
 
 The equity in these cases is, that the real transaction 
 is a loan on security, and the forfeiture by non-payment 
 is a mere penalty, which may be relieved against on sub- 
 sequent 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, how- 
 ever, is prima facie evidence that a loan was intended; 
 and if that fact be established, no contemporaneous stipu- 
 lation can clog the right of .redemption, or entitle the 
 creditor to more than his principal, interest, and costs, 
 p 1 .-■ A 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 mortgagee'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 account- 
 able 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 ac- 
 countable for all which he receives, or, without wilful 
 default, might have received ; and if he has taken posses- 
 sion when no interest was in arrear, or has continued in 
 
INTRODUCTION. 73 
 
 possession after both principal and interest were dis- 
 charged, he is liable for interest. 
 
 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 replaced by 
 any substitute, it would have been the only one attain- 
 able under his security. To remedy this objection, he 
 is allowed, after forfeiture, to file a bill praying foreclo- 
 sure 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 destroyed. The right, however, is 
 merely to foreclose 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 num- 
 ber, viz., 1. Mortgages of a trust, or equity of redemp- 
 tion, 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 con- 
 tract. Under these mortgages there is the same right 
 to a receiver as in the preceding class ; and there is a 
 doubt Avhether, 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 case the mortgagee's p^ , ..-, 
 remedy is confined to perception of rents, and -^ 
 
 he has no right to foreclosure or sale; 4. Trust deeds in 
 
74 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 pur- 
 chaser of real estate, where the one has conveyed before 
 payment, 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. Equitable fieri facias and 
 elegit, where a judgment is made ayailable against trusts 
 and equities, either by injunction against setting up an 
 outstanding estate in bar of execution at law, by appoint- 
 ment of a receiver of the accruing profits, or by permit- 
 ing 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 contract. 
 
 In immediate connection with the subjects just con- 
 sidered of trust contract and mortgage, we have to con- 
 sider the doctrines of equitable conversion and of priority 
 among conflicting equities ; doctrines which, though ap- 
 plicable 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 considered 
 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 impressed 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 equi- 
 ties of redemption are treated as estates ; but its effect 
 is most obvious in the constructive change of property 
 
INTRODUCTION. 75 
 
 from real to personal estate, and vice versa, so as to in- 
 troduce new laws of devolution and transfer. If, for 
 example, an imperative trust is created, either for em- 
 ploying money in the pui'chase of land, or for selling 
 land and turning it into money, the money or land, of 
 which a conversation 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, enforce- r*ylviin 
 able 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 
 purchase-money that of the vendor. 
 
 The doctrine of conversion, by changing the character 
 of trusts and contracts, and altering them from mere 
 rights of action into actual, though imperfect titles in 
 equity, gives rise to questions between 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 the same rule, 
 subject to the sam'e modifications, governs in the absence 
 of a special equity, transfers and charges of the equit- 
 able 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 introduced, and priority is given to the legal title, or 
 if there is no legal title, to the perfect equitable one. 
 
76 ADAMS'S DOCTRINE OF EQUITY. 
 
 This doctrine is embodied in the maxim, that " between 
 equal equities the law will prevail." 
 
 In order 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 judg' 
 ment 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 prevail. If there be 
 a legal right in either party, the Court of Chancery re- 
 mains neutral, and the matter is left to be decided at 
 law without either relief or discovery in equity. If 
 there be no legal right it cannot be neutral ; and, there- 
 fore, 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. 
 ^^ *The maxim of non-interference between equal 
 
 '- ' J equities is the foundation of the doctrine of tack- 
 ing in equity. The cases to which this doctrine 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 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 can- 
 
INTRODUCTION. 77 
 
 not be separately redeemed. The doctrine on this point 
 is, that if the double incumbrancer is clothed with a 
 legal or superior equitable right, he may, as against the 
 mesne claimants, tack to it a claim for any further 
 amount due to him in the same character, Avhich was 
 advanced expressly or presumptively on the credit of 
 the estate Avithout notice of the mesne equity. A simi- 
 lar equity accrues where two mortgages of different es- 
 tates are made to one person, or, being originally made 
 to two, become vested in one, whilst the equities of re- 
 demption 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 re- 
 deeming both. 
 
 In addition to the equity for performance of a trust 
 or contract where the original transactions and its evi- 
 dence are unimpeached and clear, there is an equity for 
 re-execution, correction, or rescission, where the instru- 
 ment evidencing a transaction is destroyed or lost ; 
 where, through mistake or accident it has been incor- 
 rectly framed ; or where the transaction is vitiated by 
 illegality or fraud, or as having been carried on in igno- 
 rance or mistake of facts material to its operation. These 
 equities, like the eqi^ity 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 relief 
 arises, not only on wilful destruction or concealment, 
 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 plain- 
 tiff from recovering at law. Such for instance is a con- 
 veyance or bond, which under the old practice must 
 have been pleaded with profert at law, and a negotiable 
 
78 ADAMS'S DOCTRINE OF EQUITY. 
 
 security, which must be produced *at law before 
 L -I verdict, because the court cannot otherwise indem- 
 nify 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 avoidance would be a 
 nullification, and not an affirmance, of what was meant. 
 It arises, firstly, where an instrument has been executed 
 in order to the performance 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 agreement which if recites, and exceeds or falls 
 short of that agreement; and, thirdly, where an instru- 
 ment is admitted or proved to have been made in pur- 
 suance of a prior agreement, by the terms of which both 
 parties meant to abide, but with which it is in fact in- 
 consistent; or where it is admitted or proved that an 
 instrument, intended by both parties to be prepared in 
 one form, has by an undesigned insertion or omission 
 been prepared and executed in another. It is in con- 
 formity 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 hus- 
 band, 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 rea- 
 son of its having been carried on in ignorance or mis- 
 take of facts material to its operation. And it is exer- 
 cised for a double purpose ; first, for cancelling execu- 
 tory contracts Avhere such contracts are invalid at law, 
 
INTRODUCTION. 79 
 
 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 ; and, secondly, for set- 
 ting aside executed conveyances or other impeachable 
 transactions, where it is necessary to place the parties 
 in statu quo. An executed conveyance, however, can- 
 not generally be set aside on the ground of its illegal or 
 immoral character, for it is a maxim that " in pari de- 
 licto meJioi; est conditio defendeniis." But it is otherwise 
 where the contract remains executory, for its illegality 
 would be admissible as a defence at law, tad the decree 
 for cancelling is only an equitable mode of rendering 
 that defence effectual. 
 
 *The ordinary instances of fraud are the pro- p^,.-, 
 curing contracts to be made, or acts to be done, by 
 means of wilful misrepresentation, either express or im- 
 plied, and the procuring them to be made or done by 
 persons under duress or incapacity. The same principle 
 which vitiates a contract with an incapacitated person, 
 is extended in equity to avoid benefits obtained by trus- 
 tees from their cestui^ que trustent, or by other persons 
 sustaining a fiduciary character from those in regard to 
 whom that character exists. And there is a similar 
 equity, though perhaps less obviously founded on prin- 
 ciple, 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 dispos- 
 ing 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 exe- 
 cuted, not by way of releasing or compromising a par- 
 
80 ADAMS'S DOCTRINE OF EQUITY. 
 
 ticnlar 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 applies 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 contracts 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. 
 
 The equity for rescission which has been just stated, 
 may be effectuated, not only by cancellation of an in- 
 strument, or by re-conveyance of property which has 
 been unduly obtained, but also by injunction against 
 suing at law on a vitiated 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 ele- 
 ment, 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 peiyetuum 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 
 r*liil ^°™™o"^y issued *in regard to actions at law, 
 and is obtainable as of course within a short pe- 
 riod 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 abso- 
 
INTRODUCTION. 81 
 
 lately 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 jurisdic- 
 tion exists in regard to proceedings in the Ecclesiastical 
 and Admiralty Courts, and even to proceedings in the 
 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 proceed- 
 ings in courts which are of equal competency to adjudi- 
 cate 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 indivi- 
 dual reiterating an unsuccessful claim ; and its equity is, 
 that if the right be established 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 lia- 
 bility to any of them, and who does not himself claim 
 an interest in the matter. Its equity is, that the con- 
 flicting claimants should litigate the matter amongst 
 themselves, without involving the stakeholder in their 
 dispute. 
 
 The injunction against an act commenced or threat- 
 ened, by which an equity may be infringed, is often 
 used as an auxiliary process in respect of ordinary equi- 
 ties. But there is one class of cases in which the ne- 
 cessity for injunctive relief constitutes per se an inde- 
 pendent equity, viz., that of torts, as a class of civil 
 wrongs, distinct from cases of trust, of contracts, and of 
 
 6 
 
82 Adams's doctrine of equity. 
 
 fraud. The principle of injunctive relief against a tort 
 is, that wherever damage is caused or threatened to pro- 
 perty, admitted or legally adjudged to be the plaintiff'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 inadequacy of the remedy at law- 
 is a sufficient equity, and will warrant an injunction 
 against the commission or continuance of the wrong. 
 r*r-n *-^^^ though damages cannot be given in equity 
 '- -I 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 particular 
 acts ; but those in respect of which it is most commonly 
 enforced are waste, destructive trespass, nuisance, in- 
 fringement of patent right, and infringement of copy- 
 right. 
 
 The equities under the second head of our division, 
 viz., where the Courts of ordinary jurisdiction cannot 
 administer a right, are those for investigation of ac- 
 counts ; for severance of co-tenancies, and other analo- 
 gous relief; for winding up partnerships and adminis- 
 tering testamentary assets; for adjusting liabilities under 
 a common charge ; and for protection 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 investi- 
 gating 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 than can practically be taken at law. 
 
 The equity for severance of co-tenancy and other 
 
INTRODUCTION. 83 
 
 analogous relief, originates in the fact that the co-tenants 
 have a rightful unity of possession, and that its sever- 
 ance cannot be adequately effected at law. It is most 
 frequently applied in effecting partition between co-par- 
 ceners, 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 him- 
 self to make the assignment ; in the other, the tithe- 
 payer is rightfully in possession of the produce, and 
 ought himself 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 compelling payment of 
 rents where by confusion of boundaries or other cause, 
 the remedy by distress is gone without default in the 
 plaintiff. 
 
 The equity for winding up the business of a partner- 
 ship originates in the peculiar character of that relation- 
 ship, as involving not merely *a community 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 lia- 
 bilities. The incapacity of the Courts of law to take 
 this account, confers a jurisdiction on the Court of 
 Chancery, so that if the partnership has been already 
 dissolved, 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 
 
84 ADAMS'S DOCTRINE OF EQUITT. 
 
 distributed among the partners, or the deficiency made 
 good by contribution among them, and a receiver ap- 
 pointed in the meantime to manage the business. If, 
 after a partnership has been dissolved by death or bank- 
 ruptcy, the assets are used by the surviving or solvent 
 partner for the purposes of profit, he is in the same posi- 
 tion as any other fiduciary holder of property, using it 
 for his own benefit, and is liable to account to the ex- 
 ecutors or assignees for the profit which he has made. 
 There is also a special equity in the case of mines and col- 
 lieries, to deal with them on the footing of a quasi part- 
 nership, 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 testator 
 or intestate, does not authorize the Court of Chancery to 
 try the validity of a will. The jurisdiction 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. If, however, 
 under a will of real estate, there is a trust to perform or 
 assets to administer, so that the will is drawn within 
 the cognizance of equity, there is an incidental juris- 
 diction 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 established, 
 whether that of an executor or devisee, or that of an 
 administrator or heir, there is an equity for administer- 
 ing the assets of a testator or intestate originating in the 
 inefficiency of the ordinary tribunals. In the exercise 
 of this equity for administration of assets, all such assets 
 as would be recognized 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, recognized in equity alone, which are 
 
INTRODUCTION. 85 
 
 termed equitable assets, and are distributed *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, praying to have 
 the accounts taken and the property administered ; or if 
 no creditor or legatee is willing to sue, then by the exec- 
 utor himself, who can only obtain complete exoneration by 
 having his accounts passed in 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 protect the representative from subsequent 
 liability. 
 
 The equity for adjusting liabilities under a common 
 charge arises where a charge or claim, affecting several 
 persons, is or may be enforced in a manner, 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, exoneration, and mar- 
 shalling. 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 liability be joint, 
 he who has paid more than his share is entitled to con- 
 tribution 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. 
 Both these equities are exemplified in the case of surety- 
 
86 ADAMS'S DOCTRINE OF EQUITY. 
 
 ship ; the one by the rights of sureties as between them- 
 selves ; the other by their rights as against the prin- 
 cipal. 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 espe- 
 cially in questions of contribution, because all parties 
 can be united in a single suit, and losses caused by the 
 insolvency of any can be distributed ratably among the 
 rest. The equity of marshalling 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 property thus doubly charged is inadequate to satisfy 
 both the claims. Under these circumstances, there is 
 an equity against the debtor that the *accidental 
 L -^ resort of the paramount creditor to the doubly 
 charged estate or fund, and the consequent exhaustion 
 of that security, shall not enable him to get back the 
 second property discharged of both debts. If, therefore, 
 the paramount creditor resort to the doubly charged 
 estate, the puisne creditor 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 marshal- 
 ling, are applied, as already noticed, in the administra- 
 tion of assets, to rectify disorders which may incidentally 
 occur; and the two former are applied 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 estates and protecting the persons 
 of infants, idiots, and lunatics. 
 
INTRODUCTION, 87 
 
 The protection of an infant's person and estate is to 
 some extent provided for by the right of guardianship, 
 and by the writs of habeas corpus and of account 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 prerogative in the Crown as parens 
 jpatrice, exercised by the Court of Chancery, for protec- 
 tion of any infant residing temporarily or permanently 
 within its jurisdiction. The jurisdiction is culled 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, where there is 
 none, by a general control of the legal guardian, when 
 there is one within the jurisdiction, or by displacement 
 of the legal guardian, if he has voluntarily relinquished 
 his right, or has forfeited it by misconduct tending to 
 the infant's corruption. Secondly, the estate of the infant 
 must be managed and applied under the like superin- 
 tendence, to be exercised either by appointment of a 
 receiver when there are no trustees, or by a general con- 
 trol of the trustees where they already exist, and do not 
 misconduct themselves. And in the exercise of such 
 superintendence, an adequate part of the *income p^, ..-, 
 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 conferred by statute. Thirdly, the mar- 
 riage of the infant must be with the sanction of the 
 
88 ADAMS'S DOCTRINE OF EQUITY. 
 
 Court. And such sanction will only be given on evi- 
 dence that the marriage is suitable, and, if the infant be 
 a female, on a proper settlement being made. 
 
 The jurisdiction to protect persons under mental inca- 
 pacity, is of an analogous origin with that for protection 
 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 jurisdiction in infancy, 
 because 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 death. If the owner is an idiot, the profits 
 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 representatives. The 
 effect of the interest thus vested in the Crown is two- 
 fold ; first, that a special grant is required for its admi- 
 nistration, and, consequently, that such administration 
 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 established, 
 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 representar 
 tives. 
 
INTRODUCTION. 89 
 
 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 officinajus- 
 titice for the issuing of writs under the Great Seal, e. g., 
 writs of certiorari, of prohibition, and of habeas corpus, 
 *as well as the original writ which has been r*2„j^j-] 
 already noticed, and the writs of subpoena and 
 injunction, which are appropriated to the equitable juris- 
 diction of the Court. It has a common law jurisdiction 
 in what is called the Petty Bag OflBce, the chief objects 
 of which are, to hold plea on scire facias to repeal let- 
 ters-patent, on petitions of right, monstrans de droit, tra- 
 verses 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 procedure by suit ; 
 e. g., for relieving summarily against breaches of chari- 
 table trusts, or regulating their administration, for effec- 
 tuating conveyances and transfers by incapacitated trus- 
 tees or mortgagees, for managing property belonging to 
 infants, femes covert, lunatics, and persons of unsound 
 mind, and for a variety of miscellaneous purposes, de- 
 pending in each instance for their character and extent 
 on the language of the statute in which they originate.^ 
 It has a very important jurisdiction, also of statutory 
 origin, under the law of bankruptcy, for administering 
 the property of an insolvent trader in his lifetime, in 
 order to the satisfaction of his creditors 'pari passu, and 
 for discharging the debtor, after full surrender of his pro- 
 
 ' 4 Inst. 79; Rex v. Hare, 1 Str. 150; 3 Steph. Bl. 408-410; 1 
 Madd. C. P. book i. ^ 2 Dan. 0. P. Ch. 40. 
 
90 ADAMS S DOCTRINE OF EQUITY. 
 
 perty and conformity with the requisitions 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 enforcement of their professional 
 duty, including the delivery of papers and payment of 
 money in their hands, on satisfaction of their claim for 
 costs.^ The consideration, however, of these additional 
 jurisdictions is not within the scope of the present Trea- 
 tise, 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 which that 
 jurisdiction is exercised. It *is obvious that in 
 L -• 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 exer- 
 cised 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 complaint, 
 or if the claim made is on behalf of the Crown, an in- 
 formation by the Attorney-General. The bill of infor- 
 mation consists of five principal parts, viz. : the state- 
 ment, the charges, the interrogatories, the prayer for 
 relief, and the prayer of process. The statement is a 
 narrative of the plaintiff's case ; and it is essential that 
 
 1 6 Geo. 4, c. 16, and 1 and 2 Wm. 4, c. 56 ; 5 & 6 Vict. c. 122 ; 10 
 & 11 Viet. 0. 102. 
 
 » 6 & 7 Vict. c. 73; 1 Smith's Ch. Pr. c. 3; Beanies on Costs, pi. 2; 
 2 Law Review, 317 ; 3 Ditto, 155, 319. 
 
INTRODUCTION. 91 
 
 it state a consistent case on behalf of all the plaintiflPs, 
 and that it state •such case in direct terms, with reason- 
 able certainty, and without scandal or impertinence. 
 The charges are generally used for collateral objects ; 
 such, for example, as meeting an anticipated defence by 
 matter in avoidance, or by inquiries to sift its truth ; 
 giving notice of evidence which might otherwise operate 
 as a surprise ; 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 state- 
 ment of the relief required, must state with reasonable 
 clearness what relief is asked, and must not combine 
 distinct claims against the same defendant, 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 multifarious. The prayer of 
 process asks that a writ of subpoena m^y 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 tes- 
 timony, 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 certio- 
 rari, it should be asked for in the prayer of process, 
 either singly, or, if the defendant be required to appear, 
 together with the writ of subpoena. 
 
 The persons against whom process is asked are the 
 defendants to *the bill, and should consist of all 
 persons interested in the suit, who are not al- L ^J 
 ready joined as plaintiffs. 
 
 With respect to the nature of the interest which re- 
 quires a person to be joined in a suit, there is of course 
 
92 ADAMS'S DOCTRINE OF EQUITY. 
 
 no difficulty as lo persons against whom relief is ex- 
 pressly asked ; but with respect to those who are inci- 
 dentally connected with the relief asked against others, 
 the line of demarcation is less easy to draw. The in- 
 terests, however, which require such joinder seem gene- 
 rally 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 defen- 
 dant, 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 identical 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 defendant should 
 enter his appearance, and that after appearing he should 
 put in his defence. If he be contumacious and refuse 
 to do so, his disobedience may be punished as a con- 
 tempt ; 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 support the bill by evidence. 
 
 Assuming that the defendant is not contumacious, his 
 defence may be made in four forms, those of disclaimer, 
 demurrer, plea, or answer. And any two or more of 
 these forms may be combined, provided they be applied 
 
INTRODUCTION, 93 
 
 to different parts of the bill, and their respective appli- 
 cation be distinctly pointed out. 
 
 A disclaimer denies that the defendant has any inte- 
 rest in the matter, and asks that he may be dismissed 
 from the suit. 
 
 A demurrer submits that on the plaintiff's own show- 
 ing his claim is bad. The decision on a demurrer is ob- 
 tained by setting it down for argument. If the demur- 
 rer is allowed on argument the suit is *at an end, 
 unless it be confined to a part of 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 obtain 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 affir- 
 mative, the latter negative, pleas. There is also a third 
 description of plea, which may be termed the anomalous 
 plea, and which is applicable when the plaintiff has an- 
 ticipated 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 ob- 
 tained by fraud. In this case, the release or other ori- 
 ginal 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 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 ne- 
 gative plea is used, that the bill contains allegations in 
 
94 ADAMS'S DOCTRINE OF EQUITT. 
 
 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 support. 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 aver- 
 ments 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 vali- 
 dity ; and, secondly, by filing a replication and bringing 
 the cause to a hearing on the issue tendered, in order to 
 determine its truth. If the plea is overruled on argu- 
 ment, the defendant must answer; if 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 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 de- 
 cree will be made against him. 
 
 The defence by answer is the most usual, and gene- 
 rally, 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, subject only to the 
 necessity of verifying them on oath ; and it unites with 
 
INTRODUCTION. 95 
 
 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 cer- 
 tainty, and without scandal or impertinence. In so far 
 as it consists of discovery, it is regulated by the princi- 
 ples which have been already noticed under that head 
 of jurisdiction. 
 
 After the answer is put in, the next question which 
 arises regards its suflBciency, viz., whether the defen- 
 dant 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 favor, a fur- 
 ther 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 ob- 
 ject of the amendment may be either to vary or add to 
 the case originally made, or to meet the defence by new 
 matter. If the amendment make fresh discovery requi- 
 site, the plaintiff" may call for a further answer, or if the 
 defendant considers it material to make a further an- 
 swer, 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 circum- 
 stances, 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 be made. 
 
96 Adams's doctrine of equity. 
 
 The final result of the pleadings is, that the original 
 ...-, or ultimately ^amended bill and the answer or 
 L -' successive answers of the defendant constitute 
 the whole record. The plaintiff may then either set 
 down the cause for hearing on bill and answer, admit- 
 ting the answer to be true throughout, or if he contro- 
 verts 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 defen- 
 dant. 
 
 The answer of the defendant is the chief foundation 
 of interlocutory orders, that is, of orders not made at 
 the hearing of the cause, but obtained during its pro- 
 gress 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 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 admitted 
 it is brought forward, not by the regular examination 
 of witnesses, but by the affidavits of voluntary depo- 
 nents. 
 
 Applications of this kind 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 defendant's posses- 
 sion, and to be capable of affording discovery 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 
 
INTBODUCTION, 97 
 
 admits that the applicant 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 defaulting 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 productive 
 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 preliminary reference to the Master, 
 where accounts or inquiries are requisite before the 
 cause can be decided, which cannot be conveniently 
 taken or made by the Court. 
 
 *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 different. 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 pub- 
 licly, 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 
 
 7 
 
98 ADAMS*S DOCTRINE OF EQUITY. 
 
 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 im- 
 peaching 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. 
 
 The only exceptions to the system of taking evidence 
 on written interrogatories and before publication are, in 
 the case of documents in the custody of a public officer, 
 and of documents, the authenticity of which is not im- 
 peached, and which require only the proof of hand- 
 writing or the evidence of an attesting witness. This 
 evidence may be given by affidavit at the hearing. 
 
 At the hearing of the cause the pleadings and evi- 
 dence are stated, and the Court either makes a final 
 decree, or, if any questions are involved which the evi- 
 dence does not satisfactorily determine, it eliminates 
 them from the general statement, and provides for their 
 determination by a preliminary decree. 
 
 The causes which create a necessity for a preliminary 
 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 asimi- 
 •- ^^J lar 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 Chancery declines to 
 assume; and 4. That there are matters to be investi- 
 gated which, although within the province of the Court, 
 are such as the presiding Judge cannot at the hearing 
 
INTRODUCTION. 99 
 
 effectually deal with. The machinery for obviating 
 these impediments is that of a preliminary decree, direct- 
 ing, 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 informa- 
 tion. 
 
 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 directed principally to 
 three objects, viz., 1. To the protection of absent parties 
 against the possible neglect or malfeasance of the liti- 
 gants ; 2. To the more effectual working out of details, 
 which the Judge sitting in Court is unable to investi- 
 gate ; 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 supported 
 either by affidavits, by depositions, or by viva voce testi- 
 mony. When the evidence is complete, the Master 
 prepares a draft report, and it is the duty of any dissatis- 
 fied party to lay before him written objections, specify- 
 ing the points in which he considers it erroneous. If 
 this is not done, he cannot afterwards contest the cor- 
 rectness 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 
 quoM parties, are dissatisfied with the report, they may 
 file written exceptions, founded on the objection pre- 
 viously taken, and specifying the alleged errors and the 
 corrections proposed. The exceptions are then heard 
 and determined by the Court. 
 
100 ADAMS'S DOCTRINE OF EQUITY. 
 
 When the exceptions have been disposed of, and the 
 report confirmed, the cause is heard on further direc- 
 tions, and the costs are generally disposed of, at the 
 same time. If the nature of the case made on the re- 
 port involves the necessity of new inquiries, a reference 
 is again made, and further directions are again reserved, 
 *and the same process is from time to time re- 
 L ^'^iJ peated 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 exposed to have his per- 
 son 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 
 inconvenience 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 contuma- 
 cious 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 de- 
 fendant, the Court is remitted to the process of con- 
 tempt, 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 purpose 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- 
 ment ; and therefore, so long as it continues unenroUed, 
 
INTRODUCTIOK. 
 
 it may be altered on a rehearing before the same juris- 
 diction, 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 commission 
 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 conten- 
 tion, 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 deter- 
 mine the litigation ; secondly, that the bill is properly 
 framed in the outset for obtaining that decree ; and 
 
 *thirdly, that the suit is conducted to its termi- ^,, 
 
 . . . . r Ixviil 
 
 nation without interruption or defeat. It is ob- '- -^ 
 
 vious that these assumptions 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 plaintifi''s bill will not determine the litigation. 
 
 This may arise either from cross-relief or discovery 
 
 being required by the defendants, or from the 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 .defendants against the plaintiff 
 
 and against such of their co-defendants as the cross- 
 
102 ADAMS'S DOCTRINE OF EQUITY. 
 
 relief may affect. If this has not been done, and the 
 difficulty appears at the hearing, the cause may be di- 
 rected to stand over for the purpose. A cross bill may 
 also be jBled to answer the purpose of a plea puis' dar- 
 rein continuance where a new defence arises after an- 
 swer, 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 outset. This ought regularly 
 to be rectified by amendment, but if the time for amend- 
 ment has elapsed, it may be rectified by a supplemental 
 bill, or by a bill in the nature of supplement, the cha- 
 racter of which will be considered under the next head. 
 
 Imperfections of the third class are those which origi- 
 nate in an interruption or defect subsequent to the insti- 
 tution of the suit, and they are rectified, according to 
 circumstances, by bill of revivor, or in the nature of re- 
 vivor, 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 law, viz., to a personal representa- 
 tive or heir, or to the husband of a married plaintiff, 
 the abatement is 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 na- 
 ture of revivor, and requires a decree at the hearing to 
 revive. 
 
 Defects in a suit subsequent to its institution may be 
 
 |- ^ ... caused either *in respect of parties, by the 
 
 -I transfer of a former interest, or the rise of a 
 
INTEODUCTIOK, 103 
 
 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 a 
 supplement. 
 
 Where an existing interest has been transferred, the 
 transferee is bound by the previous proceedings, and may 
 be introduced into the suit by a supplemental bill, stating 
 the transfer, and praying his substitution for the trans- 
 ferror. 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 independent 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 introduction on the pleadings is 
 not required, but that the proper course is to apply for 
 liberty to examine witnesses, and to have the deposi- 
 tions 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 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 hear- 
 ing, it is not properly matter of supplement, but may be 
 introduced into the cause, if necessary, by a bill ex- 
 pressly 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. 
 
104 ADAMS'S DOCTRINE OF EQUITY. 
 
 A bill to impeach a decree, is either a bill of review, 
 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 occurrence or dis- 
 covery 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 enrolment, on 
 . the occurrence or *discovery of new matter, and 
 L -I 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 supplemental bill is unnecessary. 
 
 An original bill in the nature of review is applicable 
 when the interest of a 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 procedure 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 examination of the doctrines which 
 have been already stated in their general effect. 
 
BOOK I. 
 
 OF THE JURISDICTION 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 en- 
 forcement of civil rights, as distinguished from the j uris- 
 diction 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 Icnowledge, 
 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 plaintiflf must make out his case by the evidence of 
 witnesses, or the admissions of the defendant. By this 
 right, more effectual means of ascertaining the truth are 
 afforded to plaintiffs in equity than in the Courts of 
 *common law ; whilst the rights of the defendant .-^n-, 
 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 
 
106 Adams's doctrine of equity. 
 
 oath of all the circumstances within the plaintiff's know- 
 ledge. 
 
 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 ex- 
 amined. 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 advice of counsel, whose duty it 
 is to see that everything 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 observed 
 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, 
 or 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 
 fficts which have passed between himself and them 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 defendant may stop at any point in his answer, and defend 
 himself on the ground of privilege, notwithstanding other admissions 
 therein. King of Sicilies v. Willcox, 1 Sim. N. S. 301.] 
 
OF DISCOYERT. 107 
 
 The first of these maxims is, that " no man need dis- 
 cover 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 evidence, if any person should r^g-. 
 choose to indict himself, (a) ^ 
 
 (o) East India Company v. Campbell, 1 Ves. sen. 246 ; Claridge v. 
 Hoare, 14 Ves. 59, 65 ; Lichfield v. Bond, 6 Bea. 88. [Short v. Mer- 
 cier, 3 Macn. & Gord. 205; King of Sicilies v. Willcox, 1 Sim. 
 N. S. 301.J 
 
 ' It is well settled in the United States, that a defendant in a Bill 
 in Chancery is not bound to make a discovery as to any charge of 
 felony against him, or as to any criminal offence involving moral turpi- 
 tude. 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 Eep. 33 ; Ocean Insurance Company v. Fields, 2 Story's 
 Eep. 59 ; The Union Bank v. Barker, 3 Barb. Ch. Eep. 358 ; [Mar- 
 shall V. Eiley, 7 Geo. 367; Poindexter v. Davis. 6 Gratt. 481; Stewart 
 V. Drasha, 4- McLean, 563 ; Higdon v. JSeard, 14 Geo. 255.] And 
 it seems an action for slandet is in the nature of a penal action, and 
 comes within the general rule. Bailey v. Dean, 5 Barb. S. C. Eep. 
 297. [So of a bill to set aside a conveyance on the ground of usury. 
 Masters v. Prentiss, 2 Jones's Bq. 62. But a defendant may be com- 
 pelled to make a discovery of any act of moral turpitude which does not 
 amount to a public offence or an indictable crime. Watts v. Smith, 24 
 Miss. 77. A defendant is not privileged against discovery, because it 
 will expose him to penalties in a foreign country, of which he is a sub- 
 ject. King of Two Sicilies v. Willcox, 1 Sim. N. S. 301. As a corpo- 
 ration is not in general liable to indictment, it cannot on this ground 
 resist discovery. Id. 334. So of a trustee in a bond for prospective 
 illicit cohabitation, who is not himself exposed to criminal prosecution. 
 Benyon v. Nettlefield, 3 Macn. & Gord. 94. And, in general, that dis- 
 covery will subject others than the defendant to penalty or forfeiture, 
 is no ground of protection. King of, &o. v. Willcox, 1 Sim. N. S. 301. 
 
 An act of the Legislature which compels a party against whom pro- 
 ceedings have been instituted for the recovery of a fine imposed by the 
 
108 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 dis- 
 cover matter which would subject a defendant, entitled 
 to an office or franchise, to a quo warranto, {h) 
 
 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 punish- 
 ment 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 discovery of a 
 marriage, the defendant pleaded with success that the 
 person whom she was alleged to have married had pre- 
 viously married her sister, so that the marriage, if real, 
 was incestuous ; and to a bill against bankers for obtain- 
 ing a re-transfer of stock, alleged to have been unduly 
 obtained from the plaintiff" for the purpose of making 
 good a deficiency in his son's accounts, the defendants 
 pleaded that the transaction referred to a fraudulent 
 embezzlement 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 
 
 (b) Mitford on Pleading, 4tli edit. 193-197. 
 
 same law, to a discovery under oath, is constitutional. Day v. The 
 State, 7 Gill, 322 ; Higdon v. Heard, 14 Geo. 255. See also Union 
 Bank V. Barker, 3 Barb. Ch. 358.] 
 
 1 Higdon V. Heard, 14 Geo. 255 ; Bank of U. S. v. Biddle, 2 Pars. 
 Eq. 58 ; Masters v. Prentiss, 2 Jones's Eq. 62. The defendant cannot 
 even waive this protection, for the law is, in this regard, his guardian, 
 lb. 
 
OF DISCOVERT. 109 
 
 defendant had assigned a lease, he pleaded to the dis- 
 covery a proviso in the lease, making it void in case of 
 assignment. And to a bill seeking a discovery 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 forfei- 
 ture. Therefore, where a *tenant for life pleaded r-^.-, 
 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 life, and 
 that he had committed waste, it was determined 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 demurrer 
 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 compellable 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 
 
 (c) Mitf. 284-2S7 ; Claridge v. Hoare, 14 Ves. 59. 
 Id) Parkhurst v. Lowten, 1 Meriv. 391 ; S. C. 2 Swanst. 194, 214 ; 
 Att.-Gen. V. Lucas, 2 Hare, 566. 
 
 ^ A Court of Chancery will generally compel a discovery to detect 
 fraud and imposition, and to set aside a fraudulent conveyance. Skinner 
 T. Judson, 8 Conn. 528 ; [see Attwood v. Coe, 4 Sandf Ch. 412.] 
 
110 ADAMS'S DOCTRINE OF EQUITY. 
 
 as a conspiracy at law, unless there is an indictment 
 actually pending, or at all events a reasonable proba- 
 bility that one will be preferred. The result of an oppo- 
 site course would be to render the very magnitude of a 
 fraud its protection 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 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 ofiicial 
 duties. It was his duty to give the account asked, and 
 he was not allowed to set up his own violation *of 
 L J the law as an excuse 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 per se exclude him from the protec 
 tion 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 instance, are those 
 
 (e) Dummer v. Corporation of Chippenhatn, 14 Ves. 245 ; Lee v. 
 Read, 5 Bea. 381; [Howell v. Ashmere, 1 Stockton, N. J. 82.] 
 (/) Mitf. 195 ; Green v. Weaver, 1 Sim. 404 ; Lee v. Read, 5 Bea. 
 
 381, 
 
OF DISCOVERT. Ill 
 
 where the penalty has ceased by effluxion of time, or 
 where the plaintiflf is alone entitled 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 dig clay or gravel, except for the pur- 
 pose of building on the land demised, with a proviso 
 that if he should dig for any other purpose he should 
 pay to the lessor twenty shillings a load, arid he after- 
 wards dug great quantities of each article; on a bill for 
 discovery of the quantities, waiving any advantage of a 
 possible forfeiture of the terra, a demurrer of the lessee, 
 because the discovery might subject him to payment 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 consequently incapable of taking by purchase, a de- 
 murrer will not hold. (A) In *respect also to some 
 transactions made illegal by statute, such as gam- ■- -• 
 ing 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 ex- 
 pose themselves to penalties, (i)'' 
 
 (gr) Mitf. 195-197; Trinity House Corporation v. Burge, 2 Sim. 411. 
 (i^) Mitf. 195, 196, 197. [See Hambrook v. Smith, 16 Jur. 144.J 
 (0 Mitf. 288 ; 9 Ann. c. 14, s. 3 ; 7 Geo. 2, c. 8, s. 2. 
 
 ' Skinner v. Judson, 8 Conn. 528 ; But see Northrop v. Hatch, 6 
 Conn. 361 ; Dwinal v. Smith, 25 Maine Rep. 379 
 
 ° [But it has been recently held that a plea to discovery in a bill for 
 an account, that the party would subject himself by answering to the 
 
112 Adams's doctrine of equity. 
 
 The second maxim of privilege is, that no man need 
 discover legal advice vi^hicli 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.' 
 
 penalties of the Stockjobbing Act, was good. Short v. Mercier, 3 Macn. 
 & Gord. 205 ; Eobinson v. Laraond, 15 Jur. 240.] 
 
 ' Parker v. Carter, 4 Munf. 273 ; Jackson v. Inabinit, Eiley Ch. 9 ; 
 March v. Ludlum, 3 Sand. Ch. Eep. 35 ; Crosby v. Berger, 11 Paige, 
 371; Stuyvesant v. Peckham, 3 Ed. Ch. Rep. 579; The Bank of Utica 
 V. Mersereau, 3 Barb. Ch. Eep. 528. And the same rule applies to in- 
 terpreters between client and attorney; Parker v. Carter, 4 Munf 273; 
 and to communications between different solicitors, &c., of the same 
 party. Goodall v. Little, 1 Sim. N. S. 155. But the rule does not apply 
 to a student in an attorney's office. Andrews v. Solomon, Pet. C. C. 
 356; [nor to communications between solicitors of opposite parties; 
 Gore V. Bowser, 5 De G. & Sm. 30; nor to communications betweea 
 different defendants made for the purpose of laying before their solicitor. 
 Goodall V. Little, 1 Sim. N. S. 155. See Betts v. Menzies, 26 L. J. 
 Ch. 528.] 
 
 Letters written by a client to an attorney, in relation to professional 
 business transacted by him for the client, are privileged communications. 
 Wilson V. Troup, 7 John. C. E. 25. And an attorney employed to draw 
 a deed is bound to secresy 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 employed to draw a deed, may in certain cases be 
 compelled to testify. The Bank of Utica v. Mersereau, 3 Barb. Ch. 
 Rep. 528. 
 
 [This privilege against discovery extends only to those matters "in 
 which it is lawful for the client to ask and the solicitor to give profes- 
 sional advice," and therefore not to cases of fraud, concerted between 
 counsel and client. Reyncll v. Sprye, 10 Beav. 51; 11 Beav. 618; 
 Gartside v. Outram, 26 L. J. Ch. 113. And in general it is inappli- 
 cable to communications between a testator and his solicitor, with refer- 
 ence to the dispositions contained in his will, notwithstanding that the 
 enforcement of discovery may lead to the disclosure of an illegal purpose 
 entertained by the testator, as of a secret trust. Russell v. Jackson, 9 
 Hare, 387. But in a case where this question did not arise on the dis- 
 positions of the will, but only collaterally, such communications were 
 
OF DISCOVERT. 113 
 
 The statement of the above doctrine is thus limited in 
 its terms, because it seems doubtful whether statements 
 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 discovery is sought from 
 the professional adviser ; for the rule is in all cases im- 
 perative and express, that wherever an attorney or 
 counsel is professionally employed, any communication 
 ■with his client 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 de- 
 fendant 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 advice 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 
 suit. The existence, however, of this supposed liability 
 
 (k) Greenough v. Gaskell, 1 M. & K. 98 ; Herring v. Clobery, 1 
 Ph. 91 ; Jones v. Pugh, 1 Ph. 96. 
 
 held privileged. Chew v. Farmers' Bank of Maryland, 2 Maryl. Ch. 
 Dec. 231. The rule of privilege, also, is inapplicable to communications 
 between a solicitor and one under whom both parties to a cause claim. 
 Chant V. Brown, 16 Jur. 606; S. C, 9 Hare, 790. 
 
 Where husband and wife have distinct interests, and the wife is in- 
 duced, in dealing with those interests, to act under the advice of the 
 husband's solicitor, the latter is to be deemed to act as the solicitor of 
 both, and either has the right to the production and inspection of the 
 documents relating to such transaction, which have come in the course 
 thereof into the solicitor's possession. Warde v. Warde, 3 Macn. & 
 Gord. 365. 
 
 The privilege in question is confined to communications, and does not 
 apply to the acts of the parties. Kelly v. Jackson, 13 Irish Eq. 129.] 
 
 8 
 
114 ADAMS S DOCTRINE OF EQUITT. . 
 
 in the client seems open to doubt. The cases which 
 have been considered to establish it, are apparently 
 capable of a different interpretation ; and it seems diffi- 
 cult to discover any substantial diflference, in point of 
 reason, principle, or convenience, between the liability 
 of the client, and that of his *counsel or solicitor, 
 L -I 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 actual arising of a dispute. (Z) If, before 
 the communications were made, litigation, or a dispute 
 ending in litigation, had commenced, the client is cer- 
 tainly 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 litigation, 
 were privileged. The next, that communications made 
 before litigation, but in contemplation of, and with 
 reference to, litigation which was expected and after- 
 wards arose, were entitled to the same privilege. A 
 third question then arose with regard to communica- 
 tions 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 defen- 
 dant might protect from discovery in the suit of one 
 party, cases or statements made after litigation com- 
 
 (0 Pearse v. Pearse, 1 D. G. & S. 12. 
 
 ' [Warde v. Warde, 1 Sim. N. S. 18, reversed on another point, 3 
 Macn. & Gord, 365 ; McLellan v. Longfellow, 32 Maine, 494. But 
 communications before any dispute had arisen, are not privileged. 
 Hawkins v. Gathercole, 1 Sim. N. S. 150.] 
 
OF DISCOYERY. 115 
 
 menced or contemplated 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 circum- 
 stance that the communications have not been made 
 directly to or by the solicitor or counsel, but have been 
 transmitted through an intermediate agent. (n) 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 solicitor, or that 
 they bore a reference to the legal proceedings, (o) 
 
 The third maxim of privilege protects official persons 
 *from disclosing matters of State, the publication of ^^ „^ 
 which might be prejudicial to the community. ^ -■ 
 Such, for example, are official communications between 
 the governor and law officer of a colony, respecting the 
 state of the colony ; orders given by the governor to a 
 military officer ; correspondence between an agent of 
 government and a secretary of State ; and other com- 
 munications 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 from a 
 
 («i) Walsingham v. Goodricke, 3 Hare, 122 ; Holmes v. Baddeley, 
 1 Ph. 476. 
 
 (n) Bunbury v. Bunbury, 2 Bea. 173 ; Steele v. Stewart, 1 Ph. 
 471. [Kussel v. Jackson, 9 Hare, 387 ; Groodall v. Little, 1 Sim. N. 
 S. 155.] 
 
 (o) Bunbury v. Bunbury, 2 Bea. 173 ; Greenlaw v. King, 1 Bea. 
 137; Dartmouth v. Holdsworth, 10 Sim. 476. [Chew v. Farmers' 
 Bank, 2 Maryl. Ch. Dec. 281.J 
 
116 ADAMS'S DOCTRINE OF EQUITY. 
 
 defendant in equity, he may successfully refuse to give 
 
 It will be observed that the exceptions just considered 
 are merely exceptions to the right of discovery. 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 plaintiff must prove them for 
 himself, and has no right to examine the defendant 
 respecting them. (5) 
 
 Subject to these exceptions, the rule respecting dis- 
 covery 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, completely, 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 defen- 
 dant must answer to all facts material to the plaintiff's 
 
 (p) Phillipps on Evidence, 8th edit. 189 ; Smith v. East India 
 Company, 1 Ph. 50. [Kajah of Coorg v. East Ind. Co. 25 L. J. Ch. 
 345.] 
 
 (2) Mitf. 196. (r) Micklethwaite v. Atkinson, 1 Coll. 173. 
 
 ' Although the principle cited in the test is familiar to the profession, 
 yet the American Editor has been able to discover only two cases bear- 
 ing upon the subject, and these decided not in Chancery, but at law. 
 Marbury v. Madison, 1 Cranch, 144 ; 1 Burr's Tr., by Robinson, 186, 
 187. [See this subject fully discussed in Rajah of Coorg v. East Ind. 
 Co. 25 L. J. Ch. 345.J 
 
 ■' Cuyler et al. v. Bogert et al., 3 Paige, Ch. R. 186 ; Phillips v. Pre- 
 vost, 4 John. C. R. 205 ; Parkinson v. Trousdale, 3 Scammon's Rep. 
 867 ; Hagthorp v. Hook, 1 Gill & John. 272 ; Salmon v. Clagett, 3 
 
OF DISCOVERT. 117 
 
 *He is not bound to answer questions of law ; for 
 such questions ought to be decided by the Court. ^ J 
 He is not bound to answer questions of fact, unless rea- 
 sonably material ; for he is not to be harassed with idle, 
 and perhaps mischievous, inquiries. And it will not be 
 sufficient to show, that, somehow or other, they may be 
 connected with the case ; for if such connection 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 monevs 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 material 
 to the issue, but it must be also material to the plain- 
 tiff"'s case ;^ for although the plaintiff" is entitled to know 
 
 (s) Dos Santos v. Frietas, Wigr. on Discovery, s. 239 ; Janson v. 
 Solarte, 2 Y. & C. 127. 
 
 Bland. Ch. Rep. 142 ; Brooks v. Byam, 1 Story's Rep. 296-301 ; 
 Langdon v. Goddard, 8 Story's Rep. 13 ; Methodist Epis. Church v. 
 Jacques, 1 John. Ch. Rep. 65 ; Bank of Utica v. Mersereau, 7 Paige, 
 517; King V. Ray, 11 Paige, 235; Kittredge v. Claremont Bank, 3 
 Story's Rep. 590 ; Champlin v. Champlin, 2 Edw. Ch. 362 ; Robertson 
 V. Bingley, 1 McC. Ch. 333. [Wooten v. Burch, 2 Maryl. Ch. Dec. 
 190 ; Rider v. Riley, Id. 16 ; Waring v. Suydam, 4 Edw. Ch. 426.] 
 
 ' [The plaintiff is entitled to discovery of the defendant's title, for the 
 purpose of repelling what he anticipates will be the case set up by the 
 defendant, though not of the evidence by which it is to be supported. 
 Atty.-Gen. v. Corp. of London, 2 Macn. & Gord, 247. So, he has a 
 right to the discovery of evidence in support of his title, in proof of any 
 fraud which has been committed to his injury, though the defendant 
 may thereby be compelled to disclose the evidence in support of his own. 
 Stanton v. Chadwick, 8 Macn. & Gord. 575. 
 
 It seems that in Blassachusetts, a more extended right of inquiry is 
 allowed, and that the rule with regard to the title of the defendant is 
 not applied so strictly. Haskell v. Haskell, 8 Cush. 542.] 
 
118 ADAMS'S DOCTRINE OF EQUITY. 
 
 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.{i) 
 
 Some doubt has been thrown upon the applicability 
 of this last doctrine where the discovery is sought in aid 
 of the defence to an action, or to a suit already pending 
 in equity. The language of the cases which have created 
 the doubt may certainly be taken to imply that, in an- 
 swer 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 evidence 
 on which he relies, (m) 
 
 This rule is embodied in the maxim that " if a defen- 
 r*i m *^^"' *answers at all, he must answer fully;" and 
 L -I its meaning is, that if a defendant, instead of de- 
 murring 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 conse- 
 quence of such denial, the rest of the discovery sought 
 has become immaterial. If he wish to insist on that 
 point, he must protect himself by demurrer or plea, rest- 
 ing his defence on the statement in the bill, or on a 
 single independent issue. If he does not adopt that 
 course, but goes to a hearing on the whole controversy, 
 he must give discovery on all points, so that the plain- 
 
 (0 Llewellyn v. Badeley, 1 Hare, 527. [Atty.-Gen. v. Corp. of Lon- 
 don, 2 Macn. & Gord. 247 ; Cullison v. Boswm, 1 Marjl. Cli. Dec. 95.] 
 
 (u) Lowndes v. Da vies, 6 Sim. 468 ; Be"ilwood t. Wetherell, 1 Y. & 
 0. 211-218 ; Wigr. on Discovery, s. 378 ; Glascott v. Copperminers' 
 Company, 11 Sim. 305 ; Mitf. 63. 
 
OP DISCOVERT. 119 
 
 tiff, if the decision be in his favor, may obtain a com- 
 plete decree, (tj) It is manifest from this explanation of 
 the rule, that it applies to such matters only as are in 
 themselves proper objects of discovery. 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 dis- 
 tinctly, completely, without needless prolixity, and to 
 the best of his information and belief.^ 
 
 His answer must be distinct, as containing a positive 
 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 defendant ; and it might 
 happen that, when he came to answer on individual 
 points, it would recall matters to his memory. An in- 
 quiry, for example, whether the defendant did not re- 
 ceive a specified sum at a specified time, is not suffi- 
 ciently answered by giving a schedule of receipts, which 
 does not include that *sum, and then saying that 
 the schedule contains a list of all moneys re- '- ^ 
 ceived.(a;) 
 
 (y) Lancaster v. Evors, 1 Ph. 349. 
 (w) "Wood V. Hitchings, 3 Bea. 504. 
 (x)Eaulderv. Stuart, 11 Ves. 296; Mitf. 309, 310; Wharton v. 
 
 ' Taylor v. Luther, 2 Sumner, 228; Woods v. Morrell, 1 John, C. K. 
 103 ; Smith v. Lasher, 5 John. C. K. 247; Mechanics' Bank v. Levy, 
 1 Edw. Ch. 316 ; Tradesmen's Bank v. Hyatt, 2 Edw. Ch. 195 ; 
 WyckofiF V. Sniffen, Id, 581; Norton v. Warner, 3 Edw. Ch. 106; 
 Kobinson v. Woodgate, Id. 422 ; Sloan v. Little, 8 Paige 0. R. 103 ; 
 Bailey v. Wilson, 1 Dev. & Bat. Ch. 187 ; Pettit v. Candler, 3 Wend. 
 618. 
 
120 ADAMS'S DOCTRINE OF EQUITY. 
 
 It must be complete, and so framed that the plaintiff 
 can ejS'ectuallj make use of it. For instance, if the plain- 
 tiff 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 books and make out a rea- 
 sonable account, referring to the bookfe for verification 
 and details, {y) The rule, however, will not be enforced 
 to an oppressive extent. And, therefore, where the exec- 
 utors of a deceased partner were called upon for the 
 accounts of a partnership, 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 ex- 
 pense ; 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 interrogatory requiring such 
 accounts would not be satisfied by a mere general state- 
 ment, yet a statement setting forth the items of a trades- 
 man's bill, or copying an auctioneer's catalogue of furni- 
 
 Wharton, 1 S. & S. 235 ; Anon. 2 Y. & C. 310 ; Tipping v. Clarke, 2 
 Hare, 383, 389 ; [Duke of Brunswick v. Duke of Cambridee, 12 Beav. 
 281.] 
 
 Qj) White V. Williams, 8 Ves. 193 ; Attorney-General v. East Ket- 
 ford, 2 M. & K. 35 ; Wigr. on Discovery, s. 283. 
 
 («) Christian v. Taylor, 11 Sim. 401. 
 
OF DISCOTERY. 121 
 
 ture, is impertinent, and will be expunged by the 
 Court.(a) If, however, the matters inquired after be 
 material to 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. (6) 
 
 It must be to the best of the defendant's information 
 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 within his reach. And a 
 mere allegation that he believes such parties will not 
 give him the information, or even that they have re- 
 fused to do so, will not be sufficient to excuse its want. 
 Whatever means of information he has a right to pos- 
 sess, the Court will look upon as being in his possession ; 
 and he must resort to proper means for enforcing his 
 right, (c) ' 
 
 (a) Norway v. Rowe, 1 Meriv. 347 ; Byde v. Masterman, Cr. & P. 
 265 ; Davis v. Cripps, 2 N. C. C. 435. 
 
 (6) Parker v. Fairlie, 1 S. & S. 295 : T. & R. 362 ; Lowe v. Wil- 
 liams, 2 S. & S. 574. 
 
 (c) Taylor v. Rundell. Cr. & P. 104 j 1 N. C. C. 128 ; 1 Ph. 222 ; 
 Glengall v. Frazer, 2 Hare, 99; Stuart v. Bute, 11 Sim. 442. 
 
 1 Dinsmoor v. Hazleton, 2 Post. N. H. 538 ; Green v. Carey, 12 Geo. 
 601. But a defendant is not compellable to redeem documents relating 
 to matters in question in a suit, which were pledged by him previous to 
 the institution of the suit. Liddell v. Norton, 23 L. J. Ch. 169. 
 
122 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 then to 
 give an answer with respect to its contents. There ap- 
 pears to be some doubt on this point. ((Z) 
 
 A defendant is also bound, if required by the plain- 
 tiff, to set forth a list of all documents in his possession, 
 from which discovery of the matters in question can be 
 obtained ; and if the possession of such documents and 
 their character as fit subjects of discovery, can be shown 
 from the answer, he must permit the plaintiff to inspect 
 and copy them.' 
 
 In order to obtain this production, an interrogatory is 
 
 ^generally included in the bill, asking whether 
 
 J the defendant has any documents in his posses- 
 
 (d) Shepherd v. Moms, 1 Bea. 175, 179. 
 
 ^ Roosevelt v. EUithorp, 10 Paige, 415 ; see also Collom v. Francis, 
 1 Parson's Select Eq. Cases, 527. A party is not entitled to a discovery 
 of title deeds relating solely to his adversary's title. Thompson v. Ea- 
 gle, 3 Green Ch. 271 ; [Lewis v. Davies, 17 Jur. 253 ; Cullison v. Bos- 
 som, 1 Maryl. Ch. 95 ; though privity between title of defendant and 
 plaintiff may give the right. Cullison v. Bossom.J A defendant is 
 not bound to produce by way of answer, any public documentary evi- 
 dence of which he is the ofBcial keeper. Salmon v. Clagett, 3 Bland. 
 Ch. Rep. 145. [But land agents will be directed to deliver up maps, 
 plans, &c., made or collected in the course of their employment, though 
 it is alleged that they were made for their own private use. Beresford 
 V. Driver, 14 Beav. 387.] 
 
 Under the Pennsylvania Statute of the 16th of June, 1836, the Su- 
 preme Court has not jurisdiction to compel the discovery of title deeds, 
 unless material to an issue • pending in court. Mange v. Guenat, 6 
 Whart. 141. 
 
 [By the 14 & 15 Vict. c. 99, sect. 6, the Courts of Common Law of 
 England, are authorized to require the production of documents, as 
 might have been previously done by means of a bill in equity. Similar 
 statutes exist in most of the United States.J 
 
OF DISCOVERT. 123 
 
 sion or power relating to any of the matters alleged, and 
 requiring him to enumerate and describe them in the 
 schedule. If he admits the possession of such docu- 
 ments, a motion is made that he may produce them, 
 that the plaintiff may have liberty to inspect and copy 
 them, and that they may be produced before the exa- 
 miner and at the hearing of the cause. 
 
 The right thus conferred of enforcing the production 
 of documents, is a substitute for the more troublesome 
 and expensive method of requiring their contents to be 
 set out in the answer :^ and in conformity with this view 
 it is held, first, that the right exists for the purpose of 
 discovery alone ; and secondly, that it must be regulated 
 by the same principles which regulate the right to dis- 
 covery 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 pur- 
 pose 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, because, without proof on 
 those points, he could not, supposing his claim to be 
 well-founded, obtain a perfect decree. If the docu- 
 ments, on inspection, will or may afford evidence to sus- 
 tain his claim, he has a further right to their production 
 on the general principles of discovery ; but, unless he 
 
 " [Carpenter v. Benson, 4 Sandf. Ch. 496. Therefore, where excep- 
 tions would not be sustained, if the bill called for a full statement, pro- 
 duction will not be required, though the custody of the documents is 
 admitted ; as where an answer under oath is waived. Ibid.] 
 
124 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 regulate 
 the right to discovery in the. answer itself 
 
 *An immediate consequence of this doctrine 
 L -I is, that the right to production must be shown 
 from admissions in the answer, and cannot rest on ex- 
 trinsic evidence. The question is not, whether the al- 
 legations 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 dis- 
 covery complete. If, therefore, the defendant does not 
 admit their possession, or their relevancy to the plain- 
 tiff's case, the production cannot 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 inade- 
 
 (e) Wigr. on Discovery, s. 295-298. 
 
 (/) IniQan v. Whitley, 4 Bea. 548 ; Tipping v. Clark, 2 Hare, 383, 
 389. 
 
 ' [Upon a motion for the production of documents, the Court will not 
 receive evidence extraneous to the answer, to show that a particular 
 document had been fraudulently omitted from the schedule, although 
 the defendant does not object to the extraneous evidence, and has ad- 
 duced evidence to contradict it. lleynell v. Sprye, 1 De G-. Maon. & 
 Gord. 654. So, the plaintiff is not, on an allegation that extracts from 
 books, sworn to embrace everything bearing on the controversy, are 
 garbled, entitled therefore to have inspection of the whole books. Bob- 
 bins V. Davis, 1 Blatchf. 238.] 
 
OF DISCOVERT. 125 
 
 quately framed, their inadequacy may render an amend- 
 ment requisite, but in either case the admissions must 
 be extracted from the defendant before the order for 
 production can be made. 
 
 The admissions necessary to compel production are, 
 that the documents are in the defendant's possession or 
 power, and that they are of such a character as to con- 
 stitute proper matters of discovery within the ordinary 
 rules. ^ 
 
 The documents must be in the defendant's possession 
 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 possession therefore 
 of his solicitor or agent, or of any other person whose 
 possession he can control, is equivalent to his own.(g) 
 If, however, a document 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 ; 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 ; the other, that another ^person not pre- 
 sent has an interest in the document, which the ■- -• 
 
 (g) Ex parte Shaw, Jac. 270; Morriee v. Swaby, 2 Bea. 500. 
 [Lady Beresford v. Driver, 14 Beav. 387 ; Robbing v. Davis, 1 Blatcbf. 
 C. C. 238. See ante, note to p. 12.] 
 
 ' [Where the bill charges the possession of documents which relate 
 to the matters in question, the defendant cannot protect himself from 
 setting out a list and description of the documents, by merely alleging 
 his belief that they do not contain evidence of or tend to show the plain- 
 tiff's title, but he is bound distinctly to negative the allegations of the 
 bill. Att.-Gen. v. Corp. of London, 2 Macn. & Gord 247. A denial, 
 under oath, of the relevancy of concealed passages will not be sufficient. 
 If the Court ascertains that they might possibly refer to the questions 
 at issue, their production will be enforced. Caton v. Lewis, 22 L. J. Ch. 
 906.] 
 
126 ADAMS'S DOCTRINE OF EQUITY. 
 
 Court cannot deal 'with.(/i)^ 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 possession is on 
 his own account only, and he owes no duty to such 
 other persons, the mere fact that the documents are im- 
 portant to their interests will not prevent their produc- 
 tion, (i) 
 
 The documents must be of such a character as to con- 
 stitute proper matters of discovery within the ordinary 
 rules, viz., they must not fall within any of the pro- 
 tected classes ;. and they must be material to the plain- 
 tiff'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 doubt- 
 ful, the omission may be supplied by affidavit; or, if part 
 orily of the document is entitled to protection, the de- 
 fendant may seal up such parts as he shall swear by 
 affidavit to be of a protected character. (/<;) If, however, 
 the uncertainty be not remedied by affidavit, or if the 
 answer contradict itself or be palpably incredible, pro- 
 duction may be enforced, to ascertain the truth. (Z) 
 It will be observed that, in order to entitle the plain- 
 er) Taylor v Kundell, Cr. & P. 104 ; Murray v. Walter, Or. & P. 
 114. [Morrell v. Wootten, 13 Eeav. 105 ; Ford v. Dolphin, 1 Drew. 
 222 ; Chant v. Brown, 9 Hare, 790 ; Penny v. Goode, 1 Drew. 474.] 
 (i) Hercy v. Ferrers, 4 Bea. 97. 
 
 (Jc) Llewellyn v. Badelcy, 1 Hare, 527; Curd v. Curd, 1 Hare, 274; 
 [Bobbins v. Davis, 1 Blatch. C. C. 238.] 
 
 (I) Bowes V. Fernie, 3 M. & C. 632 ; Latimer v. Neate, 11 Bligh, 
 112 : 4 CI. & F. 570 ; Bannatyne v. Leader, 10 Sim. 230. 
 
 ^ [Where possession of documents is admitted by two defendants, one 
 of whom dies, production cannot be enforced in the absence of his re- 
 presentatives. Robertson v. Shewell, 15 Beav. 277.] 
 
OF DISCOVERT. 127 
 
 tiff 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 affirma- 
 tive evidence for himself, he will not be entitled to in- 
 spect his adversary's evidence, merely because on inspec- 
 tion it may prove defective, (n) It is otherwise if the 
 bill alleges a *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 plaintiff 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 
 production, (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 satisfgictorily displaced the 
 charge, (p) 
 
 (m) Burrell v. Nicholson, 1 M. & K. 680. 
 
 (ti) Bolton V. Corporation of Liverpool, 3 Sim. 467 ; 1 M. & K. 88 ; 
 Llewellyn v. Badely, 1 Hare, 527. 
 
 (o) Smith V. Beaufort, 1 Hare, 507 ; 1 Ph. 209 ; Coombe v. Corpo- 
 ration of London, 1 N. C. C. 631- 
 
 (p) Kennedy v. Green, 6 Sim. 7; Wigr. on Discovery, s. 311. 
 
 ' [Atty.-Gen. v. Corp. of London, 2 Macn. & Gord. 247. The defen- 
 dant in such ease must distinctly negative the ground on which the 
 plaintiff claims inspection of the document, in order to protect himself. 
 Ibid. The defendant may also be compelled to set forth whether he has 
 not made certain allegations of title, though not whether those allega- 
 tions are true, or of the nature of that title ; and may be compelled to 
 set forth a schedule of all documents relating to the matter. Potter v. 
 Waller, 2 De Gex & Sm. 410. It seems that the defendant cannot pro- 
 tect himself from discovery, on the ground of disclosing the evidence of 
 his title, where his only allegation of title is negativing that of the plain- 
 tiff. Atty.-Gen. v. Corp. of London, 2 Macn. & Gord. 247.] 
 
128 ADAMS'S DOCTRINE OF EQUITY. 
 
 If the possession and character of the documents are 
 sufficiently admitted, the next step is to order their pro- 
 duction ; and unless some ground can be 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 accord- 
 ance with that maxim, wherever the possession and 
 character of the documents are admitted, no denial by 
 answer of the plaintiff's equity, however full and ex- 
 pHcit, will excuse from production. This view, how- 
 ever, seems to be incorrect ; for although the fitness of 
 production, 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 objection to dis- 
 cover 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 demand 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 
 descriptive schedule ; the answer gives the schedule ; 
 and is a full answer according to the requirements of 
 the bill. If the contents had been asked *for, the 
 ^ -I defendant might have been compelled to plead, 
 and might have adopted that course to avoid the tech- 
 nical rule. But there is no such requisition in the bill; 
 and, therefore, if the plaintiff's equity be effectually dis- 
 placed by the answer, the mere technical rule that an 
 
 ' [The petition for an order of production must designate, with reason- 
 able certainty, the books and papers called for. Williams v. Williams, 
 1 Maryl. Ch. Dec. 201. Williams v. Savage, Man. Co., 3 Id. 418. The 
 defendant, though treated as plaintiff's agent, has no right to be present 
 at the inspection of the documents. Bartley v. Bartley, 1 Drewry, 233.] 
 
OF DISCOVERT. 129 
 
 answer must be full, does not apply to the production 
 of documents, (g)' 
 
 (q) Adams v. Fisher, 3 M. & C. 526 ; Wigr. on Discovery, s. 148- 
 185; Lancaster v. Evors, 1 Ph. 349. 
 
 ' [Where discovery is sought in relation to matters in which the 
 plaintiff has no interest, except consequential or resulting from a cha- 
 racter or title denied by the answer, and not otherwise appearing on the 
 record, the plaintiff has no equity entitling him to the discovery. But 
 if the plaintiff's interest in the discovery sought, results from a character 
 and a title alleged in the bill, and if the bill properly avers that the 
 discovery will establish that character and title, and also establish a case 
 of fraud by the defendant, in destroying or withholding the plaintiff's 
 remedies, the defendant cannot withhold discovery by generally denying 
 the character and title claimed by the bill. Stanton v. Chadwick, 3 
 Macn. & Gord. 575. It seems that a defendant cannot protect himself 
 from discovery, on the ground of its disclosing the evidence of his title, 
 where his only allegation of title is a negativing that of the plaintiff. 
 Atty.-Gen. v. Corp. of London, 2 Macn. & G-ord. 247. But if the plain- 
 tiff's title is denied, and the answer states, positively, that the docu- 
 ments in the defendant's custody, relating to matters in the bill, will 
 not show that title, the Court will not order their production ; so even 
 if he merely states that he is advised and believes that they will not 
 show the plaintiff's title. Peile v. Stoddart, 1 Macn. & Gord. 192. In 
 Goodall V. Little, 1 Sim. N. S. 155, however, where there was a denial 
 of the plaintiff's title in the bill, and the answer, admitting the posses- 
 sion of certain documents, denied that these documents would show the 
 facts to be as the plaintiff alleged them, the Court ordered the produc- 
 tion of the documents, on the ground that they might form material 
 links in the chain of proof. And in Swinborne v. Nelson, 22 L. J. 
 (N. S.) Ch. 331, discovery was enforced, notwithstanding an express 
 denial of the plaintiff's title in the answer. The general language of 
 Adams V. Fisher, which is cited as the authority for the doctrine in the 
 text, was said not to be in accordance with " a long line of authorities 
 before decided in this Court," and inconsistent with the principles of 
 equity pleading ; and it was supposed that the case in question was in- 
 tended only to apply to cases where the discovery would not assist the 
 plaintiff in making out his title to the relief sought. 
 
 There is no distinction in the rule to be applied in this matter, between 
 
 9 
 
130 ADAMS'S DOCTRINE OF EQUITY. 
 
 A defendant may also in some cases bind himself 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 evidence of the 
 plaintiff's case. A mere reference to the document as 
 existing, and as constituting a portion of his own evi- 
 dence, 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 correctly stated, (r) 
 
 The right of enforcing discovery on oath is confined 
 to the plaintiff in the cause. If the defendant wishes, 
 on his part, to obtain discovery, he must constitute 
 himself a plaintiff by filing a cross-bill, and will be en- 
 titled in his turn to an answer on oath, so soon as he 
 has answered the original bill.' If, however, the plain- 
 
 (?•) Hardman v. Ellames, 2 M. & K. 732 ; Latimer v. Neate, 11 
 Bligh, 112 ; Adams v. Fisher, 3 BI. & 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. 
 
 ordinary discovery and the production of documents. Swinborne v. 
 Nelson, ut sup. J 
 
 ' When defendant seeks the discovei-y 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. Vietes, 1 Gilm. 470; [Josey v. Rogers, 13 Geo. K. 
 478]. A cross-bill is merely a defence, and cannot be the foundation 
 of a decree concerning matters not embraced in the original writ. Gal- 
 latian v. Erwin, Hopk. 48 ; Draper v. Gordon, 4 Sandf. Ch. Rep, 210 ; 
 Gallatian v. Cunningham, 8 Cowen, 361, S. C. ; Field v. Sehieffelin, 1 
 John. C. R. 252; May v. Armstrong, 3 J. J. Marsh. 262. See 
 
OF DISCOVERT. 131 
 
 tiff'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 obviously afford no adequate 
 aid to the defendant ; because it would not enable him 
 to see the documents, until after his own answer had 
 been filed. It appears that under such circumstances 
 the Court cannot compel the plaintiff' to produce the 
 documents, 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, praying payment of two pro- 
 missory notes given by the testator for securing 15,000?. 
 One of the executors made an affidavit that he had in- 
 spected 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 in- 
 spection 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 uncertain. It has 
 
 remarks of Kent, Ch., as to cross-bills, in Field v. Schieffelin, 7 John. 
 Ch. Eep. 252. [Time for answering may be enlarged for the purpose 
 of bripging in a cross-bill. Josey v. Rogers, 13 Geo. E.. 478.] 
 
132 ADAMS'S DOCTRINE OF EQUITY. 
 
 been said by a Judge of great experience, 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 sup- 
 port it.(s)' 
 
 The jurisdiction of the Great Seal for enforcing dis- 
 covery 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 will 
 not be enforced to aid a proceeding before arbitrators, 
 or before an inferior Court. And it has also been re- 
 p-|Q-| fused in regard *to proceedings in the Ecclesi- 
 astical 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 en- 
 forced in one instance to aid the jurisdiction of a foreign 
 Court ; but the propriety of such enforcements seems 
 open to doubt. (<)^ 
 
 (s) Princess of Wales v. Lord Liverpool, 1 Sw. 114; Taylor v. Hem- 
 ing, 4 Bea. 235 ; Milligan v. Mitchell, 6 Sim. 186 ; Penfold v. Nudd, 
 5 Siin. 405 J Bate v. Bate, 7 Bea. 528. 
 
 (0 Mitf. 53, 186, 225 ; Earl of Derby v. Duke of Athol, 1 Ves. Sen. 
 202, 205 ; Bent v. Young, 9 Sim. 185. 
 
 ^ To entitle a plaintiflF 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 plaintiflf, or by the person from 
 whom his information is derived. Talmage v. Pell, 9 Paige, C. K. 
 410 ; White v. Buloid, 2 Paige, 164. 
 
 ^ March v. Davison, 9 Paige, 580 ; Lane v. Stebbins, Id. 622 ; At- 
 lantic Ins. Co. V. Lunar, 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. Postley, 2 Paige, 599. Whether a court will sustain.abill 
 of discovery merely to procure such admissions as might be used in 
 mitigation of damages, qucere? Gelston v. Hoyt, 1 John. C. B. 543. 
 
 ' In New York, it has been decided that a bill of discovery will be 
 
OF DISCOVERT. 133 
 
 » 
 
 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 liable 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 support an action, allowed a demurrer 
 to the bill, {v) Where the plaintiff alleges on his bill a 
 sufficient case at law, it has been doubted to what ex- 
 tent discovery 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 relief at law, the 
 defendant could not plead matter in bar to the discovery 
 which would be a bar to the relief there. The proposi- 
 tion, however, thus widely expressed, does not seem 
 consistent with later decisions. And the true principle 
 appears to be that, if the legal defence is of a character 
 showing that the discovery would have no bearing on 
 the issue at law, it will be a sufficient answer to the bill. 
 
 (u) Mitf. 191. (v) Mitf. 187. 
 
 sustained to aid the prosecution or defence of a civil suit in a foreign 
 tribunal. Mitchell v. Smith, 1 Paige, 287. 
 
 1 [Baxter v. Farmer, 7 Ired Eq. 239 ; Turner v. Dickerson, 1 Stock. 
 Ch. 140. Thus a bill will not lie for the production of title papers, 
 under which the plaintiff claims title, merely on the ground that they 
 may be useful in some future action. Baxter v. Farmer. Where one 
 has an interest in the common law suit of such a kind as makes him 
 in effect a party, though he is not named as a party, a bill for discovery 
 will lie against him. Carter v. Jordan, 15 Geo. 76.] 
 
134 ADAMS'S DOCTRINE OF EQUITY. 
 
 If the legal defence is not of this character, but the trial 
 at law will be of the general merits, the discovery will 
 be enforced. (t«)^ 
 
 p.. -, *A bill thus filed for enforcing discovery in aid 
 L -• of proceedings before some other tribunal is called 
 a bill for discovery, in contradistinction to those bills, on 
 which the consequent relief is attainable in equity, and 
 
 (w) Hindman v. Taylor, 2 B. C. C. 7 ; Robertson y. Lubbock, 4 Sim. 
 161, 172; Scott V. Broadwood, 2 Coll. 447; Hare on Discovery, 47- 
 60. 
 
 ' Leggett V. Postley, 2 Paige, 599 ; Marcb v. Davison, 9 Paige, 580; 
 Lane v. Stebbins, Id. 622 ; Deas. v. Harvie, 2 Barb. Ch. Kep. 448; 
 Seymour v. Seymour, 4 Johns. C. R. 409 ; Lucas v. The Bank of Da- 
 rien, 2 Stewart, 280 ; Bailey v. Dean, 5 Barb. S. C. Rep. 297 ; Gelston 
 v. Hoyt, 1 Johns. C. R. 543. 
 
 Where a bill seeks for discovery alone, and not for relief also, the de- 
 fendant will be compelled to make discovery, if the Court suppose that it 
 can in any way be material to the plaintiff, in support or defence of any suit. 
 Peck v. Ashley, 12 Met. 478. But see Leggett v. Postley, 2 Paige Sep. 
 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 suflBcient excuse is shown why it was not filed at that time. Faulk- 
 ner's Adm'x V. Harwood, 6 Randolph, 125 ; and see Foltz v. Pourie 
 & Dawson, 2 Desau. 40 ; 3 Miss. 433. After a verdict or judgment at 
 law a party comes too late with a bill of discovery. Duncan v. Lyon, 3 
 John C. R. 355, 402 ; Foltz v. Pourie & Dawson, 2 Desau. 40 ; [Cow- 
 man V. Kingsland, 4 Edw. Ch. 627 But if equity has concurrent 
 jurisdiction, in such case, and the defendant neglects to interpose the 
 objection by demurrer, and answers on the merits, the jurisdiction will 
 be sustained, notwithstanding a judgment at law. Endieott v. Penny, 
 14 Sm. & Marsh. 144.J 
 
 It seems that it is not necessary to state particularly the pleadings at 
 law, so as to show what precise issues are pending. Hinkle v. Currin, 
 1 Humph. Ten. Rep. 74. 
 
 [The joinder of defendants in separate actions, or of separate suits 
 at law in the same bill of discovery, is inadmissible. Broadbent v. 
 State, 7 Maryl. 416 ; MacDougald v. Maddox, 17 Geo. 52.] 
 
OF DISCOVERY. 135 
 
 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 re- 
 quisite will not alter the jurisdiction. The Court of 
 Chancery will enforce the discovery, but the relief must 
 be sought before the appropriate tribunal.^ 
 
 ' [A bill for discovery alone may be maintainedj in a case where, if it 
 had been for relief also, it would have been demurrable ; as on a bill in 
 aid of a plea of illegal consideration, in a suit at law on a bond. Ben- 
 yon V. Nettlefield, 3 Macn. & Gord. Qi ; Manning v. Drake, 1 Mann. 
 Mich. 34. A bill for discovery in aid of an action, must show affirma- 
 tively that the plaintiff's right cannot be established at law, without aid 
 of the discovery which he seeks. Stacy v. Pearson & Bobbitt, 3 Eich. 
 Eq. 148 ; Merchants' Bank v. Davis, 3 Kelley, 112 ; Williams v. Har- 
 den, 1 Barb. Ch. 298; Norwich &c. R. E,. Co. v. Storey, 17 Conn. 
 364 ; though in Peck v. Ashley, 12 Met. 478, it was held that dis- 
 covery may be enforced notwithstanding the absence of such allegation, 
 where the Court can suppose that it would be in any way material in 
 support or defence of an action. But a bill will lie not only whore the 
 plaintiif is destitute of other evidence, but also to aid or render it un- 
 necessary. Stacy V. Pearson & Bobbitt, 3 Eich. Eq. 148 ; though see 
 Bell V. Pomeroy, 4 McLean, 57. It is no answer to such bill, to say 
 that the facts can be proved by other witnesses, if they are incompetent 
 by reason of interest. Bell v. Pomeroy. 
 
 In England, the modern rule is, that as 'to matters not originally 
 within the cognizance of equity, and where there is adequate remedy at 
 law, a bill for discovery merely, can alone be sustained ; and that if the 
 bill further pray relief, special or general, the whole is demurrable. 
 Story, Eq. Jur. § 69, 70 ; Equity Plead. § 312 ; Foley v. Hill, 2 H. 
 Lords Gas. 37. But in the United States, a more convenient and rea- 
 sonable doctrine generally obtains in such cases, and where the dis- 
 covery is effectual, the Court will go on and give the adequate relief, if in 
 its power, to prevent a multiplicity of suits ; unless where there is a 
 pending action. Stoiy, Eq. Jur. § 71 ; Brooks v. Stolley, 3 McLean, 
 523; Warner V. Daniels, 1 Wood. & Min. 90; Traip v. Gould, 15 
 Maine, 82; Lyons v. Miller, 6 Gratt. 438 ; Sims v. Aughtery, 4 Strob. 
 Eq. 121. If, however, a jury is necessary to determine the extent of 
 the relief, discovery will be enforced, and the case then sent to law. 
 Lynch v. Sumrall, 1 A. K. Marsh. 468.] 
 
136 ADAMS S DOCTRINE OF EQUITY. 
 
 The discovery obtained by a bill in equity is only 
 available against the answering defendant.^ It cannot 
 be read as evidence against a co-defendant, unless he re- 
 fers to it by his answer as correct, or is so connected with 
 the answering party as to be bound, under the ordinary 
 rules of law, by his declarations or admissions, (a;) If 
 therefore a bill is filed for relief, 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 de- 
 fendant who is not a party to the record at law. There 
 is an exception however in the case of suits against cor- 
 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 corpo- 
 rate body cannot do.(y) 
 
 As against the defendant himself, if he be not under 
 
 (x) Mitf. 188 ; Anon. 1 P. W. 301; Chervet v. Jones, 6 Mad. 267; 
 Crosse v. Bedingfield, 12 Sim. 35 ; Green v. Pledger, 3 Hare, 165. 
 
 (y) Mitf. 188 ; Kerr v. Kew, 5 M. & C. 154 ; Glasscott v. Copper- 
 miners' Company, 11 Sim. 305, 314. 
 
 ' As a general rule, the answer of one defendant cannot be used as 
 evidence against his co-defendant. Leeds v. jNIarine Ins. Co. of Alex- 
 andria, 2 Wheaton, 380 ; Osborne v. Bank of United States, 9 Whea- 
 ton, 738; Keimsdjk v. Kane, 1 Gallis, 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. Ingra- 
 ham, 5 John, 412 ; Pettit v. Jennings, 2 Rob. Va. 676; 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. 
 Sever, 8 Paige, C. R. 548 ; Dykers v. Wilder, 3 Edw. Ch. 496 ; Hay- 
 ward V. Carroll, 4 Har. & J. 518 ; Stewart v. Stone, 8 Gill & J- 510; 
 Caldwell V. Boyer, 8 Gill & J. 136 ; and in numerous other cases. 
 
OF DISOOVEEY. 137 
 
 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 favor, but the plaintiff may 
 use *any portion of it, without admitting the re- 
 mainder to be read, except so far as it is expla- *- 
 natory of the portion used, (z) The defendant, however, 
 is so far entitled to the benefit of his answer, that any 
 material suggestion made by it, though not established 
 by proof, may, at the discretion of the Court, be referred 
 for inquiry, (a) 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 circumstances 
 
 (z) Bartlett v. Gillard, 3 Russ. 149, 156 ; Freeman v. Tatham, 5 
 Hare, 329 ; East v. East, 5 Hare, 343. [See Glenn v. Eandall, 2 
 Maryl. Ch. 220.] 
 
 (a) Connop v. Hayward, 1 N. C. C. 33 ; McMahon v. Burchell, 2 
 Ph. 127. 
 
 ' [This does not apply where an answer under oath is waived. Tom- 
 linson v. Lindley, 2 Carter, Ind. 569.] 
 
 ° When the facts alleged in the complainant's bill are denied in the 
 answer, it is a general principle that they must be proved by two credi- 
 ble witnesses, or one witness and strong corroborating circumstances : 
 Swift V. Dean, 6 Johns. R. 522; Clason v. Morris, 10 Id. 524; Atkin- 
 son V. Manks, 1 Cow. 691 ; Stafford v. Bryan, 1 Paige, C. R. 239 ; 
 Chance v. Teeple, 3 Green Ch. 173 ; McDowell v. Bank of Wilmington 
 & Brandywine, 1 Harring. 369 ; Beatty v. Smith & Thompson, 2 Hen. 
 & M. 395 ; Raines v. Jones, 4 Humph. 490 ; Coles v. Raymond, 5 
 Blackf. 435; Bibb v. Smith, 1 Dana, 580; Mason v. Peck, 7 J. J. 
 Marsh. 300; Patterson v. Hobbs, 1 Lit. 275; Little v. Molver, 1 Bibb. 
 203; Paulding v. Sturgus, 3 Stewart, 95; Neale v. Hagthrop, 3 Bland. 
 551 ; Hughes v. Blake, 6 Wheaton, 453 ; Union Bank v. Geary, 5 Pet. 
 98; Page v. Page, 8 N. H. 187; Daniel v. Mitchell, 1 Story, 173; 
 and many other cases which it is unnecessary to quote. 
 
138 ADAMS'S DOCTRINE OF EQUITY. 
 
 in the plaintiff's favor, the Court will depart from this 
 rule, and will either make an immediate 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. (5) 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 ten- 
 der has been made, is not sufficient to save costs. Nor 
 can the answer of a mortgagor be read against a mort- 
 gagee to deprive him, on the ground of misconduct, 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 necessarily 
 confined to cases where the hearing is in equity. If the 
 bill be for discovery in aid of a procedure at law, the 
 answer is treated at law like any 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 rehef. In 
 I- " -^ the one case the costs of discovery are a portion 
 of the costs in the cause, and are disposed of in that 
 
 (6) East India Company v. Donald, 9 Ves. 275 ; Savage v. Brock- 
 sopp, 18 Ves. 335. 
 
 (c) Howell V. George, 1 Mad. 1 ; Milnes v. Davidson, 3 Mad. 374 ; 
 Wright V. Jones, C. P. Coop. 493. 
 
 ^ [This rule also applies where, as in the United States generally, the 
 Court goes on to give relief on the ground of discovery, notwithstanding 
 that there is adequate relief at law. Lyons v. Miller, 6 Gratt. 439.] 
 
or DISCOVERY. 139 
 
 character 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 an- 
 swer, if read at all, must have been read throughout, 
 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 discovery 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, (d) 
 
 (rf) 42d Order of August, 1841 ; 125th Order of May, 1845. 
 
140 ADAMS S DOCTRINE OF EQUITY. 
 
 [*23] *CHAPTER 11. 
 
 ON COMMISSIONS TO EXAMINE WITNESSES ABROAD ; OF PER- 
 PETUATION OF TESTIMONY AND OF EXAMINATIONS DE BENE 
 
 In addition to the 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, with- 
 out itself deciding on the result, viz., in suits for a Com- 
 mission TO Examine Witnesses Abroad, and in suits to 
 Perpetuate Testimony ; and secondly, for granting, 
 either in aid of its own proceedings or of a proceeding 
 elsewhere, an examination of witnesses de bene esse. 
 
 ^ Courts of Chancery in the United States, and Courts of Law, exer- 
 cising Chancery powers, are in the constant practice of entertaining 
 jurisdiction of bills for the perpetuation of testimony, issuing commis- 
 sions for the examination of witnesses abroad, and of permitting testi- 
 mony to be taken de hene esse; and it will be found, that generally the 
 rules of practice are analogous to those of the English High Court of 
 Chancery. See upon this subject Clark v. 13undy, 6 Paige, 432; Brown 
 V. Southworth at al. 9 Id. 351; Lingan v. Henderson, 1 Bland, 236; 
 Jerome et al. v. Jerome, 5 Conn. 352 ; In the matter of Isaac L. Kip, 
 1 Paige C. R. 601 ; Fort v. Eagusin, 2 Johns. C. R. 146 ; Rockwell 
 V. Polsom, 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 ; Kincheloe 
 V. Kincheloe, 11 Leigh, 393 ; Gordon v. Watkins et al. 1 S. & M. Ch. 
 37; [Story on Eq. Plead. Ch. VII; Baxter v. Farmer, 7 Ired. Eq. 
 239.] 
 
COMMISSIONS TO EXAMINE "WITNESSES. 141 
 
 The jurisdiction for issuing Commissions to Examine 
 Witnesses Abroad is sufficiently explained by its name. 
 It originated in the incapacity of the common law Courts 
 to issue such commissions without the consent of both 
 parties. That incapacity is removed by a recent statute; 
 but the jurisdiction of equity still continues, though its 
 exercise is less frequently required, (a) 
 
 The jurisdiction in suits to Perpetuate Testimony 
 arises where the fact, to which the testimony relates, 
 cannot be immediately investigated at law, e. g., where 
 the person filing 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 disturbance at a future time.(6) r*9^-i 
 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 entitled upon the happening of any future 
 event, to any honor, title, dignity, or oflBce, 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 en- 
 titled to file a bill to perpetuate any testimony which 
 may be material for establishing such claim or right." (c) 
 
 The jurisdiction to examine witnesses 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 appre- 
 
 (a) 1 Wm. 4, 0. 22, s. 4 ; Grinnell v. Cobbold, 4 Sim. 546. 
 
 (6) Mitf. 51 ; 1 Mad. Ch. Practice, 253 ; Dursley v. Fitzhardinge, 
 6 Ves. 251 ; Angell t. Angell, 1 8. & S. 83. 
 
 (c) Earl of Belfast v. Chichester, 2 J. & W. 439 ; Townshend Peer- 
 age case, 10 CI. & P. 289 ; 5 & 6 Vict. c. 69. 
 
142 ADAMS'S DOCTRINE OF EQUITY. 
 
 hend that, before the regular opportunity arrives, mate- 
 rial" evidence may be lost. This is called an examina- 
 tion de bene esse; and the depositions taken under it can 
 only be read, if the party seeking the benejfit of them 
 has used all diligence to examine in the ordinary course, 
 but there has been a moral impossibility of his so 
 doing, (f^) 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 examina- 
 tion de hene esse, provided there be annexed to it an 
 affidavit of the circumstances which render such exami- 
 nation necessary, (e) The principle on which this aflB- 
 davit is required, where the matter is capable of being 
 immediately 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 
 p^jopji principle is applied, as *we shall hereafter 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 la%v.(/) 
 
 The mode of taking the evidence, either under a com- 
 mission to Examine Witnesses Abroad, or in a suit to 
 Perpetuate Testimony, or in an examination de hene 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 
 
 (d) Frere v. Green, 19 Ves. 320; Hope v. Hope, 3 Bea. 317; Mcin- 
 tosh V. Great Western Railway, 1 Hare, 328 ; Cann v. Cann, 1 P. W. 
 567. 
 
 (e) Mitf. 52, 150 ; Angell v. Angell, 1 S. & S. 83. 
 (/) Post. Ee-execution of Lost Instruments. 
 
COMMISSIONS TO EXAMINE WITNESSES. 143 
 
 cause does not proceed beyond the examination of the 
 witnesses. When that has been completed it is con- 
 sidered 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 ob- 
 tained except for the purpose of a suit or action, nor 
 even for that purpose during the lifetime of the wit- 
 nesses, unless on special grounds, showing that their 
 examination is morally impossible. ((/)^ 
 
 The same principle applies to depositions taken de 
 hene esse; and their publication cannot be obtained, 
 unless the witness dies or is otherwise incapacitated 
 from giving his evidence before issue is joined. 
 
 If the evidence is required for the purpose of a trial 
 at law, the order made is that the depositions be pub- 
 lished, 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. (7i) 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 ; [Barnsdale v. Lowe, 2 Russ. 
 & M. 142.] 
 
 (Ji) Attorney-General v. Ray, 2 Hare, 518. 
 (i) Morris v. Morris, 2 Ph. 205. 
 
 \ [A bill to perpetuate testimony, also differs from an ordinary bill, 
 in that it cannot be dismissed for want of prosecution : the only order 
 that can be made is to compel the plaintiff to proceed in a given time 
 or pay the costs. Beavan v. Carpenter, 11 Sim. 22 j Wright v. Tat- 
 ham, 2 Sim, 459.] 
 
BOOK 11. 
 
 OP THE JURISDICTION OF THE COURTS OP EQUITY, IN CASES 
 IN WHICH THE COURTS OF ORDINARY JURISDICTION CAN- 
 NOT ENFORCE A RIGHT. 
 
 [*26] *CHAPTEE I. 
 
 OF TRUSTS, BOTH OKDINAKY AND CHARITABLE. 
 
 The jurisdiction of equity to grant relief originates, 
 as we have seen, in the occasional inadequacy of the 
 remedy at law ; and the instances in which this inade- 
 quacy occurs, may be conveniently divided under two 
 heads, viz., 1. Where the Courts of ordinary jurisdiction 
 cannot enforce a right ; and 2. Where they cannot ad- 
 minister 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 enforce 
 a right, are those for performance of trusts and contracts, 
 for election between inconsistent benefits, for completion 
 of gifts on meritorious consideration in favor of the 
 donor's intention after his death, for giving effect to dis- 
 charges 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 
 
ORDINARY AND CHARITABLE TRUSTS. 145 
 
 lost or erroneously framed, for rescission of transactions 
 which are illegal or fraudulent, or which have been 
 carried on in ignorance or mistake of material 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, r^oy-i 
 is called the trustee ; the latter, or owner in equity, 
 tbe cestui que trust. 
 
 The principal advantage of a conveyance on trust is, 
 that it enables the owners of property to eifectuate dis- 
 positions of a more complex character than is consistent 
 with the machinery of conveyances at law ; and that it 
 also aiFords the means of protecting infants and other 
 incapacitated persons, by vesting their property in trust- 
 worthy holders, who manage and apply it for their benefit. 
 It is, on the other hand, attended with some inconve- 
 nience 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 
 trustee, by concealing his fiduciary character, to sell the 
 property to a stranger. 
 
 The distinction between a trustee's legal ownership, 
 and the beneficial interest of a cestui que trust, is in some 
 instances recognized 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 construction of the devise, in refer- 
 ence both to its passing any estate, and also in reference 
 to the extent and duration of the estate passed. (a) But, 
 in so far as a legal ownership is conferred, it invests the 
 
 (a) 2 Jarm. on Wills, 196 ; Adams on Ejectment, 4th edit. 60-65. 
 
 10 
 
146 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 essential: 
 first, that the ownership conferred be coupled with a 
 trust, either declared by the parties or resulting by pre- 
 sumption of law ; and secondly, that it be accepted on 
 those terms by the trustee. 
 
 The declaration of a trust by the parties is not, inde- 
 pendently of the Statute of Frauds, required to be made 
 or evidenced in any particular way. And therefore, pre- 
 r*981 "^i'^^^ly *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 confi- 
 dences 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 confidence shall 
 likewise be in writing, signed by the 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 
 
 ^ [This provision is in force in most of the United States. In North 
 Carolina and formerly Pennsylvania, it has been omitted. Foy v. Foy, 
 2 Hayw. 131 ; Murphy v. Hubert, 7 Penn. St. 420. But it is now re- 
 enacted in the latter State. Act of 1856 ; Bright. Supp. 1174.] 
 
ORDINARY AND CHARITABLE TRUSTS. 147 
 
 be manifested and proved by writing,' And therefore, 
 if the existence of a trust, together with its precise 
 ternas and subject-matter, can be proved from any sub- 
 sequent acknowledgment, written and signed by the 
 trustee, as by a letter, memorandum, or recital in a 
 deed, it will be sufficient. (6)^ 
 
 (h) 29 Car. 2, c. 3, ss. 7 & 9 ; Gardner v. Rowe, 2 S. & S. 346 ; 5 
 Russ. 258. 
 
 ' [Movan v. Hays, 1 Johns. C. R. 339 ; Johnson v. Ronald, 4 Munf. 
 77 ; Jackson v. Moore, 6 Cow. 706 ; Flagg v. Mann, 2 Sumn. 486 ; 
 Pinney v. Fellows, 15 Verm. 525 ; 2 Story, Eq. § 972. But in Maine 
 (R. S. 1847, ch. 92, § 31), and New Hampshire (R. S. 1842, ch. 139, 
 § 13), trusts must be created as well as proved in writing.] 
 
 ' Fisher v. Fields, 10 Johns. Rep. 494 ; [Orleans v. Chatham, '2 
 Pick. 29 ; Graham v. Lambert, 5 Hump. 595 ; Dale v. Hamilton, 2 
 Phill. 266 ; Maccubbin v. Cromwell, 7 Gill. & Johiis. 157 ; Steere v. 
 Steere, 5 Johns. C. R. 1 ; Unitarian Soc. v. Woodbury, 2 Shepley, 281; 
 Maxwell v. Whielden, 10 Cush. 221. See "Walraven v. Lord, 2 Patt. 
 & H. 547.] 
 
 A trust estate in real property, as separate from the legal ownership, 
 may be created by an express declaration of trust, or may be raised upon 
 certain facts by implication of law. Elliott v. Armstrong 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. Cunning- 
 ham et al., 8 Leigh, 271. 
 
 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. C. R. 1 ; Maccubbin v. Cromwell, 7 Gill. & Johns. 157 ; Pin- 
 ney v. Fellows, 15 Verm. 525; Unitarian Society v. Woodbury, 2 
 Shepley, 281 ; Rutledge v. Smith, 1 McC. Ch. Rep. 119 ; Elliott v. 
 Morris, 1 Harp. Eq. 281 ; Fleming et al. v. Donahoe et al, 5 Ham- 
 mond, 256 ; [Harrison v. MoMennomy, 2 Edw. Ch. 251; Slocum v. 
 Marshall, 2 Wash. C. C. 398.] 
 A trust respecting personal property may be proved by parol evi- 
 
148 ADAMS'S DOCTRINE OF EQUITY. 
 
 With respect to personal estate, including moneys out 
 on mortgage, the original rule continues, and it is suflS- 
 cient 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 de- 
 clared 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 the benefit 
 is meant, and the ^interests which they are re- 
 L J spectively 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 necessarily 
 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 
 
 (t) Benbow v. Townsend, 1 M. & K. 506 j McFadden v. Jenkyns, 1 
 Hare, 458; 1 Ph. 153. 
 
 dence, and this, whether the trust be considered as an express or result- 
 ing trust. Martin v. Greer, 1 Geo. Decis. 109 ; Lord v. Lowry, 1 
 Bailey Ch. 510 ; [Rice v. Burnett, Spear Ch. 579 ; Gordon v. Green, 
 10 Geo. 534.] 
 
 ' [Slocum V. Marshall, 2 Wash. C. C. 398 ; Steere v. Steere, 5 Johns. 
 Ch. 1; Dorseyv. Clarke, 4 H. & Johns. 551; Mercer v. Stark, 1 Sin. & 
 Marsh. Ch. 479 ; Knight v. Boughton, 11 CI. & Fin. 513 ; Briggs Y. 
 Penny, 3 Macn. & Gord. 546 ; Williams v. Williams, 1 Sim. N. S. 
 358. Besides the three requisites enumerated in the text, a fourth has 
 been added by recent English authorities : certainty in the manner in 
 which the trust is to be performed ; Knight v. Boughton, ut sup. ; 
 Beeves v. Baker, 18 Jurist, 588 ; and this, it was said in the latter 
 case, may be referred partly to the subject-matter, and partly to the ob- 
 ject of the trust, and reduced to one or other of them. J 
 
ORDINARY AND CHARITABLE TRUSTS. 149 
 
 gift to them : nor by the use of precatory or recom- 
 mendatory words, instead of more iaiperative language. 
 And, on the other hand, a trust is not necessarily cre- 
 ated, 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. 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 intrusted 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 discre- 
 tion, 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 distri- 
 buted among those who are within the Statute of Distri- 
 butions, 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 di- 
 rection to make certain payments out of the rents : and 
 the testator *empowered him to employ the re- 
 sidue for such of his nephew's children as he L""^^] 
 should think proper. On the trustee's failure so to em- 
 ploy the residue, it was decreed to be a trust for all the 
 children.' There is another class of cases, apparently 
 
 • [Sec, accordingly, Withers v. Yeadon, 1 Rich. Eq. 324 ; Collins v. 
 
150 ADAMS'S DOCTRINE OF EQUITY. 
 
 similar to these, but based on an entirely distinct prin- 
 ciple, where a non-compulsorj power of appointment 
 has been conferred, 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 
 which it has been held that in default of appointment 
 the children took by implication estates tail. The dis- 
 tinction 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 recom- 
 mend," " 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 grammatical con- 
 struction of the words is not sufficient to determine 
 whether a trust exists. It is clear that words simply 
 
 (d) Brown v. Higgs, 8 Ves. 561 ; Grant v. Lynam, 4 Russ. 292; 
 Burrough v. Philoox, 5 M. & C. 73 ; 2 Sug. on Powers, 7tli edit. 157. 
 
 Carlisle, 7 B. Monr. 13; Gibbs v. Marsh, 2 Metcalf, 243 ; Miller v. 
 Meetch, 8 Penn. St. 417; Whitehurst v. Harker, 2 Ired. Eq. 292; 
 Penny v. Turner, 2 Phillips, 493. Where the class is ascertained, the 
 rule of division by the Court, is, of course, equality.] 
 
ORDINARY AND CHARITABLE TRUSTS. 151 
 
 intimating an expectation, provided their object be ex- 
 pressed with sufficient certainty, may operate as imper- 
 ative on the person to whom they are addressed. But 
 although they may create a trust, yet they have not 
 necessarily that effect. They ax'e in themselves of a 
 flexible character, and must give way if the imperative 
 construction *be inconsistent with any positive p^n,-, 
 provision in the will, or if it appear from the '- -^ 
 general context that the testator meant to depend on 
 the justice or gratitude of the donee. The question, 
 therefore, in each particular case is- merely of construc- 
 tion on the terms of the instrument, (e)^ 
 
 The non-creation of a trust in a donee notwithstand- 
 ing that a trust is formally declared, occurs principally 
 in conveyances for payment of debts, where the language 
 used, if taken in its literal acceptation, would constitute 
 the creditors cestuis que trustent, and would entitle them 
 to enforce an application of the fund. It has been de- 
 
 (e) Wright v. Atkyns, 17 Ves. 255 ; 19 Ves. 299; Shaw v. Lawless, 
 1 Lloyd & Goold, 558 ; 5 CI. & F. 129 ; Knight v. Boughton, 11 01. 
 & P. 513 ; Knott, v. Cottee, 2 Ph. 192 ; 2 Sug. on Pow. 171. 
 
 ^ [Eriekson v. Willard, 1 N. Hamp. 217. See Lucas v. Lockhart, 
 10 Sm. & Marsh. 466. Some of the American cases have shown con- 
 siderable latitude in the enforcement of trusts by precatory words. Col- 
 lins V. Carlisle, 7 B. Monr. 14 ; Bull v. Bull, 8 Conn. 47 ; Harrison 
 V. Harrison, 2 Grattan, 1. But the modern English decisions have a 
 contrary tendency, and are against the conversion of a legatee into a 
 trustee, unless where it appears, "on looking at the whole context of the 
 jvill, that the testator has meant to impose an obligation on his legatee to 
 carry his wishes into efifect." Williams v. Williams, 1 Sim. N. S. 358 • 
 Johnston v. Rowlands, 2 Be GT. & Sm. 356 ; Webb v. Wools, 2 Sim. N. 
 S. 267; Briggs. v. Penny, 3 Macn. & Gord. 546; Reeves v. Baker, 18 
 Jur. 588 ; see Barnes v. Grant, 26 L. J. Ch. 92 ; and a similar conclu- 
 sion was arrived at, in Pennock's Est. 20 Pen. St. R. 268 ; Thompson 
 V. MoKisick, 3 Humph. 031 ; Harper v. Phelps, 21 Conn. 257.] 
 
152 ADAMS'S DOCTRINE OF EQUITY. 
 
 cided, however, that, notwithstanding the similarity of 
 form, the transaction is substantially different from the 
 creation 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 credi- 
 tors. The nominal trustee, therefore, is merely his 
 agent ; and the nominal trust is only a method of apply- 
 ing his own property for his own convenience. (/)^ 
 
 (/) Garrard v. Lord Lauderdale, 3 Sim. 1 ; Bill v. Cureton, 2 M. & 
 K. 503 ; Hughes v. Stubbs, 1 Hare, 476 ; Gibbs v. Glamis, 11 Sim. 
 584 ; Wilding v. Richards, 1 Coll. 655. [Simmonds v. Palles, 2 Jones 
 
 6 Lat. 489 ; Smith v. Keating, 6 C. B. 136.] 
 
 * [The distinction taken in the text, and for which Garrard v. Lord 
 Lauderdale is the leading authority, between a voluntary assignment 
 for creditors, and an ordinary trust, is very important in its results; for, 
 if it be sound, the assignment before it is acted on constitutes merely a 
 power in the trustee, revocable at pleasure, invalid against general credi- 
 tors, and not enforceable in equity by those who are provided for thereby. 
 Some of the more recent cases, however, seem to indicate that if the 
 trust be communicated to the creditors it will cease to be revocable, 
 though not executed by them ; at any rate, such is the case where the 
 trustee has also taken possession of the property. Griffith v. Ricketts, 
 
 7 Hare, 307; Harland v. Binks, 15 Q. B. 718; Smith v. Hurst, 10 
 Hare, 30; Acton v. Woodgate, 2 Myln. & K. 495. Where there is an 
 actual execution by the creditors, the trust becomes irrevocable. Mac- 
 kinnon v. Stewart, 1 Sim. N. S. 76. 
 
 In the United States, such assignments, before the assent of the bene- 
 ficiaries, have, in some cases, been treated as mere naked powers : Brooks 
 v. Marbury, 11 Wheat. 78; Watson v. Bagaley, 12 Penn. St. R. 164; 
 yet the general current of authority is clear, that the creditors, on learn- 
 ing of the existence of the trust deed, may proceed at once to enforce it 
 in equity, before becoming formally parties thereto. Moses v. Murga- 
 troyd, 1 Johns. Ch. 119 ; Shepherd v. McEvers, 4 Id. 136 ; Weir v. 
 Tannehill, 2 Yerg. 57; Pearson v. Rockhill, 4 B. Monr. 296; Robert- 
 son V. Sublett, 6 Hump. 813; Ingram v. Kirkpatrick, 6 Ired. Eq. 463; 
 Pratt V. Thornton, 28 Maine, 355. See Burrill on Assignments, 280, 
 306, for a discussion of this subject.] 
 
ORDINARY AND CHARITABLE TRUSTS. 153 
 
 A resulting trust by presumption of law arises where 
 the legal ownership of property has been disposed of, 
 but it is apparent from the language of the disposition 
 itself, or from the attendant circumstances, that the 
 equitable ownership or beneficial interest was intended 
 to go in a different channel, although there is no decla- 
 ration, or no suflScient 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 evi- 
 denced in writing. The enactment is, that " where any 
 conveyance shall be made of any lands or *tene- 
 ments by which a trust or confidence shall or ^ J " 
 may rise 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 confi- 
 dence shall be of the like force and effect as the same 
 would have been if this statute had not been mside."{g) 
 
 Resulting trusts of the first class, viz., those where 
 the intention to sever the legal and equitable ownership 
 is apparent, either directly or indirectly, from the lan- 
 guage 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 dispo- 
 sition of property, it is apparent that any beneficial in- 
 terest was not intended to accompany the legal owner- 
 ship, but no other sufficient 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 deliberation and under professional advice, this cir- 
 
 (ff) 29 Car. 2, c. 3, s. 8. 
 
154 ADAMS'S DOCTRINE OF EQUITY. 
 
 cumstance does not often occur. In gifts by will it is 
 not unfrequent. 
 
 In gifts of this class, the bequest of the beneficial 
 interest is sometimes intentionally deferred ; as where 
 property is devised to a trustee " upon trusts to be de- 
 clared by a subsequent codicil," and no such declaration 
 is made ; sometimes a trust is declared, but lapses by 
 the death of the beneficial donee, or is invalidated 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 sur- 
 plus 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 prima facie infer- 
 ence 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.^ 
 rs:qqn *^^ ^^ cases of this kind, the rule of law is that 
 '- -^ the beneficial interest undisposed of results back 
 to the original owner, or to his representatives, real or 
 personal, according to the nature of the property. 
 
 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 par- 
 tially illegal or partially fail, or if they require the appli- 
 cation of a part only of the land devised, the heir takes 
 so much of the land or of its produce as was destined for 
 
 1 [See Flint v. Warren, 16 Sim. 124 ; Onslow v. Wallis, 13 Jur. 
 1085; Ealston v. Telfair, 2 Dev. Eq. 255; Huston v. Hamilton, 2 
 Binn. 387; King v. Mitchell, 8 Pet. 326; Sheaffer's App. 8 Barr, 38; 
 Hawley v. James, 5 Paige, 323 ; Floyd v. Barker, 1 Paige, 486; Frazier 
 V. Frazier, 2 Leigh, 642.] 
 
ORDINARY AND CHARITABLE TRUSTS. 155 
 
 the ineflfective purpose, or so much as is not required for 
 the purpose of tlie "will. And e converso, if there be a 
 bequest of personal property for purposes which are alto- 
 gether or partially illegal, or which altogether or par- 
 tiall}' fail, the next of kin are entitled to it, or to so 
 much of it as cannot or need not be applied to the pur- 
 poses of the will. (/*) 
 
 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 presumption 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.^ 
 
 (K) Collins V. Wakemann, 2 Ves. J. 683 ; Muekleston v. Brown, 6 
 Ves. 52 ; Fowler v. Garlike, 1 R. & M. 232 ; Ackroyd v. Smithson, 1 
 B. C. C. 503; King v. Denison, 1 Ves. & B. 260; Tregonwell v. Syden- 
 ham, 3 Dow, 194; Sidney 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 ; [Gordon v. Atkinson, 1 De G. & Sm. 
 478 ; Taylor v. Taylor, 3 De G. Macn. & G. 190 ; Craig v. Leslie, 3 
 Wheat. 568 ; Burr v. Sim, 1 Whart. 263 ; Sheaffer's App. 8 Penn. St. 
 42 ; King v. Mitchell, 8 Peters, 326 ; Lindsay v. Pleasants, 4 Ired. Eq. 
 320 ; Pratt v. Taliaferro, 3 Leigh, 419; Wood v. Cone, 7 Paige, 472 ; 
 Snowhill V. Snowhill, 1 Green, Ch. 30.] Infra, Conversion. 
 
 ' [It is a general principle, that where on a purchase of property, the 
 conveyance of the legal estate is taken in the name of one person, but 
 the purchase-money is paid or secured by another, at the same time or 
 previously, and as part of one transaction, and the parties are strangers, 
 not in certain relations of blood, a trust results in favor of him who sup- 
 plies the purchase-money. Buck v. Pike, 11 Maine, 9 ; Boyd v. McLean, 
 1 John. Ch. 582 ; Jackman v. Eingland, 4 Watts & S. 149 ; Livermore 
 V. Aldrich, 5 Cush. 435, and a great number of other cases, many of 
 which may be found cited. Hill on Trustees, 2 Am. Ed. 125, in note. 
 
156 . 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 
 
 It is also held in the United States, by analogy, that a purchase by a 
 man in his own name, with funds in his hands in a fiduciary capacity, 
 creates a resulting trust in favor of those whose money is thus employed; 
 as in the case of a trustee, a partner, an agent for purchase, an executor, 
 a guardian, the committee of a lunatic, and the like. Philips v. Cram- 
 mond, 2 Wash. 0. C. 441 ; Kirkpatrick v. McDonald, 11 Penn. ^t. 
 393 ; Baldwin v. Johnston, Saxton, 441 ; Smith v. Kamsey, 1 Gilm. 
 373 ; Pugh v. Currie, 5 Alab. 446 ; Edgar v. Donnelly, 2 Munf. 387; 
 Martin v. Greer, 1 Geo. Dec. 109 ; Freeman v. Kelley, 1 HofF. Ch. 90; 
 Moffiti V. McDonald, 11 Humph. 457 ; Turner v. Petigrew, 6 Id. 438; 
 Piatt V. Oliver, 2 McLean, 267 ; Smith v. Burnham, 3 Sumn. 435 ; 
 Harrisburg Bank v. Tyler, 3 Watts & S. 373 ; Wilhelm v. Polmer, 6 
 Barr, 296 ; Church v. Sterling, 16 Conn. 388 ; Hutchinson v. Hutch- 
 inson, 4 Desaus. 77 ; Method. Church v. Wood, 5 Hamm. 283 ; Gar- 
 rett V. Garrett, 1 Strob. Eq. 96 ; Wallace v. Duffield, 2 Serg. & R. 521; 
 Reid v. Fitch, 11 Barb. S. C. 399 ; Caplenger v. Stokes, Meigs, 175; 
 Coder V. Huling, 27 Penn. St. 84 ; Harper v. Archer, 28 Miss. 212. 
 So of a husband purchasing with his wife's separate property. Metho- 
 dist Church V. Jaques, 1 John C. 450 ; 3 Id. 77 ; Brooks v. Dent, 1 
 Maryl. Ch. 523; Dickinson v. Codwise, 1 Sandf. Ch. 214; Pinney v. 
 Fellows, 15 Verm. 525 ; Barron v. Barron, 24 Id. 375. It is to be 
 observed, however, that where such employment of fiduciary funds is 
 unauthorized and wrongful in itself, the parties affected thereby, are not 
 confined to the mere enforcement of a resulting trust in the property thus 
 tortiously acquired, but may, instead thereof, elect to take the money 
 back. See Oliver v. Piatt, 3 How. U. S. 333 ; Bonsall's Appeal, 1 
 Rawle, 266. Indeed, under such circumstances, where the investment 
 of the money is manifestly hostile to the original trust, it is even held 
 in some English decisions, approved by Mr. Justice Gibson, in Wallace 
 V. Duffield, 2 Serg. & R. 521, and in Wallace v. McCollough, 1 Rich. 
 Eq. 426, that no technical trust is created, and that the beneficiaries can 
 only claim a lien for their money upon the property acquired, and a con- 
 sequent decree for a sale. But this is contrary to the uniform current 
 of authority in this country, as before stated ; and inconsistent in its prac- 
 tical application, with the cardinal rule, that no fiduciary can be permitted 
 to profit by a violation of his duties. 
 
 The doctrines with regard to the ordinary resulting trust, are applicable 
 
ORDINARY AND CHARITABLE TRUSTS. 157 
 
 really advanced the price. And it is equally applicable 
 whether such conveyance be in the name of a stranger 
 
 to personal as well as real estate, to ehoses in action, as stock and annui- 
 ties, as well as in possession. Sidmouth v. Sidmouth, 2 Beav. 454 ; Ex 
 parte Houghton, 17 Ves. 253 ; but not, it has been held, to property 
 perishable in its nature. Union Bank v. Baker, 8 Humph. 447. 
 
 They are also applicable where the purchase-money is paid by several 
 jointly, and the legal estate taken in the name of one only. Botsford v. 
 Burr, 2 John. Ch. 405 ; Pierce v. Pierce, 7 B. Monr. 433 ; Stewart v. 
 Brown, 2 Serg. & E. 461 ; Shoemaker v. Smith, 11 Hump. 81 ; Powell 
 V. Manufacturing Co. 3 Mason, 347; Purdy v. Purdy, 8 Maryl. Ch. 547; 
 Letcher v. Letcher, 4 J. J. Marsh, 590 ; Buck v. Swazey, 35 Maine, 41 ; 
 Sheldon v. Sheldon, 3 Wise. 699 ; Morey v. Herrick, 18 Penn. St. 129. 
 But the part of the purchase-money furnished by one who thus claims 
 a resulting trust, must be a definite one. Baker v. Vining, 30 Maine 
 121 ; Sayre v. Townsends, 15 Wend. 647. Though it has been held 
 that the presumption was in the first instance, in such case, that the funds 
 were supplied in equal proportions by all. Shoemaker v. Smith, 11 
 Humph. 80. 
 
 In order to create a resulting trust, the money must have been actually 
 paid by the alleged cestui que trust, out of his own or borrowed funds, 
 or secured to be paid, at or before the time of the purchase, and cannot 
 be raised by matter ex post facto. Botsford v. Burr, 2 Johns. Ch. 405 ; 
 Steere v. Steere, 5 Id. 1 ; Freeman v. Kelly, 1 HoflF. Ch. 90 ; Rogers 
 V. Murray, 3 Paige, 390 ; Foster v. Trustees, 3 Alab. 302 ; Mahorner 
 V. Harrison, 13 Smedes & Marsh. 53; Graves v. Dugan, 6 Dana, 331; 
 Magee v. Magee, 1 Penn. St. 405; Page v. Page, 8 N. H. 187; Brooks 
 V. Fowle, 14 Id. 248 ; Conner v. Lewis, 16 Maine, 268 ; Pinnock v. 
 Clough, 16 Verm. 500; Haines v. O'Connor, 10 Watts, 313; Gomez 
 V. Tradesman's Bank, 4 Sandf. S. C. 106 ; Buck v. Swazey, 35 Maine, 
 41; Lynch v. Cox, 23 Penn. St. 26; Olive v. Dougherty, 3 Green, 
 Iowa, 371 ; Irwin v. Ivors, 7 Indiana, 308 ; Whiting v. Gould, 2 Wis. 
 552. They may, however, have been supplied by the nominal purchaser 
 himself on credit. Page v. Page, 8 N. H. 187 ; Runnclls v. Jackson, 
 1 How. Miss. 358 ; Began v. Walker, 1 Wise. 527; Brooks v. Ellis, 
 3 Iowa, 527. 
 
 The facts from which a resulting trust is to be established, may be 
 proved by parol, the case being excepted from the Statute of Frauds, 
 though at the same time the evidence must be clear and positive. Bots- 
 
158 ADAMS'S DOCTRINE OF EQUITY. 
 
 only, without mention of the actual purchaser, or in the 
 joint names of a stranger and the purchaser himself j 
 
 ford V. Burr, 2 John. Ch. 405 ; Steere v. Steere, 5 Id. 1 ; Peebles v. 
 Reading, 8 Serg. & R. 484; Elliott v. Armstrong, 2 Blackf. 198; Blair 
 V. Bass, 4 Id. 539 ; Pugh v. Bell, 1 J. J. Marsh. 403 ; Depeyster v, 
 Gould, 2 Green Ch. 474; Page v. Page, 8 N. H. 187; Slocum v. Mar- 
 shall, 2 Wash. 0. C. 397 ; Enos v. Hunter, 4 Gilman, 211 ; Carey v. 
 Callan, 6 B. Monr. 44, and many other cases. In England, it is very 
 doubtful whether such evidence would be admitted against the answer 
 of the defendant, but it is held in the United States, generally, that it 
 is so; though it must be extremely clear, and is to be received with the 
 greatest caution. Boyd v. McLean, 1 John. Ch. 582 ; Botsford v. Burr, 
 
 2 Id. 405 ; Buck v. Pike, 2 Fairf. 24 ; Baker v. Vining, 30 Maine, 
 121 ; Page v. Page, 8 N. II. 187 ; Snelling v. Utterback, 1 Bibb, 609 
 Letcher v. Letcher, 4 J. J. Marsh. 590; Elliott v. Armstrong, 2 Blackf. 
 198; Blair V. Bass, 4 Id. 540; Larkins v. Rhodes, 5 Porter, 196 
 Ensley v. Ballentine, 4 Humph. 233 ; Faringer v. Ramsay, 2 Maryl 
 R. 365 ; Funsler v. Jones, 7 Ind. 277. Parol evidence is also admis- 
 sible, though it may contradict the recital in the deed, that the consi- 
 deration was paid by the nominal purchaser, at least during his lifetime 
 Hill on Trustees, 95 ; Livermore v. Aldrieh, 5 Cush. 435, and cases 
 there cited ; and according to decisions in the United States, the ques- 
 tion being unsettled in England, after his death also, though of course, 
 in such case, the proof should be of the strongest character, as the pro- 
 tection of an answer is absent. Unitarian Soc. v. Woodbury, 14 Maine, 
 281 ; Neill v. Keese, 5 Texas, 23 ; Harden v. Harden, 2 Sandf. Ch 
 17; McCammon v. Petit, 3 Sneed, 242. See Harrisburg Bank v. Tyler, 
 
 3 Watts & Serg. 373. For the purpose of establishing the fact of 
 payment by the cestui que trust, the declarations or admissions of the 
 nominal purchaser to that effect are always competent. Malin v. Malin, 
 1 Wend. 626 ; Pierce v. McKeehan, 3 Penn. St. 136 ; Harden v. 
 Harden, 2 Sandf. Ch. 17; Lloyd v. Carter, 17 Penna. St. 216; Pea- 
 body V. Tarbell, 2 Cufsh. 232; Pinney v. Fellows, 15 Verm. 525; 
 Barron v. Barron, 24 Id. 375 ; but parol declarations that he had pu^ 
 chased or was about to purchase for another, without proof of some pre- 
 vious agreement, or advance of money, are obviously inadmissible, as 
 they would go to establish not a resulting, but an express trust, in the 
 teeth of the Statute of Frauds. Sidle v. Walters, 5 Watts, 389; Haines 
 
OKDINARY AND CHARITABLE TRUSTS. 159 
 
 whether the estate be originally conveyed to one pur- 
 chaser out of many, or *become ultimately vested 
 in one as the survivor, under an assurance which ^ -I 
 
 V. O'Connor, 10 Td. 313; Blyholder v. Gilson, 18 Penn. St. 184; 
 Smith V. Smith, 27 Id. 180. 
 
 As a resulting trust may be created, so may it be rebutted, by parol 
 evidence, either by way of direct contradiction of the alleged facts, or in 
 proof of a different intention of the parties at the time, as that the nomi- 
 nal purchaser was designed to be the real beneficiary. Botsford v. 
 Burr, 2 John. Ch. 405 ; Page v. Page, 8 N. H. 189; Baker v. Vin- 
 ing, 30 Maine, 126 ; Elliott v. Armstrong, 2 Blackf 199 ; McGuire 
 V. McGrowen, 4 Desaus. 487; Sewell v. Baxter, 2 Maryl. Ch. 448. 
 Or that the party advancing the purchase-money, by the original agree- 
 ment, expressly stipulated for himself a benefit from the transaction, in- 
 consistent with the creation of a trust. Dow v. Jewell, 1 Poster, 470. 
 And so in general, where a different trust has been declared, at the time, 
 in writing. Leggett v. Dubois, 5 Paige, 114 ; Anstioe v. Brown, 6 
 Paige, 448 ; Clark v. Burnham, 2 Story, 1 ; Mercer v. Stark, 1 S. & M. 
 Ch. 479. 
 
 Eesulting trusts of this nature arise from the want of any considera- 
 tion between the nominal purchaser and the person who supplies the 
 purchase-money. Where, therefore, the parties are not strangers, but 
 stand in that relation of blood, which supplies by itself, in equity, a 
 good consideration for a conveyance, as in the case of a purchase by a 
 parent in the name of a child, prima, facie no trust results, but the 
 transaction is treated as an advancement. Page v. Page, 8 N. H. 187 ; 
 Jackson v. Matsdorf, 11 John. R. 91 ; Partridge v. Havens, 10 Paige, 
 618 ; Knouff v. Thompson, 16 Penn. St. 357 ; Dennison v. Goehring, 
 7 Id. 182, n. ; Taylor v. James, 4 Desaus. 6 ; Tremper v. Barton, 18 
 Ohio, 418 ; Stanley v. Brennen, 6 Black. 194 ; Dudley v. Bosworth, 
 10 Hump. 12 ; Tebbetts v. Tilden, 11 Foster, 273 ; Rankin v. Harper, 
 23 Missouri, 579. But this is a mere circumstance creating an adverse 
 presumption, to rebut which, again, parol evidence is admissible. Jack- 
 son V. Matsdorf. 11 John. 91 ; Dudley v. Bosworth, 10 Humph. 12 ; 
 Taylor v. Taylor, 4 Gilm. 303 ; Tremper v. Barton, 18 Ohio, 418. And 
 under all circumstances, where the conveyance is in fraud of creditors, 
 a sufficient interest remains in the parent, to subject it in equity to the 
 claim of his creditors. Kimmel v. MoRight, 2 Penn. St. 38 ; Guthrie 
 V. Gardner, 19 Wend. 414; Jencks v. Alexander, 11 Paige, 619; 
 
160 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 assurance is made, it does not affect the pre- 
 sumption, 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 inten- 
 tion, the trust of such legal estate will result to the par- 
 ties who have advanced the purchase-money, in propor- 
 tion 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 otherwise expressed in the 
 deed. 
 
 The doctrine, however, is merely one of presumptive 
 evidence. It is not a rule of law that a trust must be 
 intended on such a purchase, but it is a reasonable pre- 
 sumption, as a matter of evidence, in the absence of 
 proof to the contrary. It is therefore open to the nomi- 
 nal purchaser to rebut that presumption by direct or 
 circumstantial evidence to the contrary. He may, for 
 instance, show that it was intended to give him the 
 benefical interest, either altogether or in part ; that the 
 purchase-money was advanced by way of loan to him- 
 
 Croft V. Arthur, 3 Desaus. 223; Eucker v. Abell, 8 B. Monr. 566; 
 Dunnien v. Coy, 24 Missouri, 167 ; Garfield v. Hatmaker, 15 N. T. 
 476. 
 
 It only remains to state that in some of the United States, as New 
 York, resulting trusts, of this nature, are abolished, except as regards 
 the creditors of the party paying the money. See Rev. Stat. N. Y., 
 Part II, Ch. 1, Art. 6, § 51, &c. ; Garfield v. Hatmaker, 15 N. Y. 
 476.] 
 
ORDINARY AND CHARITABLE TRUSTS. 161 
 
 self, and that the party advancing it intended to become 
 his creditor, and not the equitable owner of the estate ; 
 or that the purchase-money, on a conveyance in joint 
 tenancy, was advanced 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 man- 
 ner 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 contemporaneous decla- 
 rations *or other direct proof of intention, or from p^„p-, 
 the circumstances under which the transaction ■- -^ 
 took place, or from the subsequent 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, (i) 
 The most important class of cases in which, as an or- 
 dinary 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 parentis. The general principle 
 on which this counter presumption proceeds is that, in- 
 asmuch 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 prima facie proba- 
 bility is that he intended it as a provision or advance- 
 ment. The doctrine on this point will be hereafter se- 
 
 (t) 3 Sug. V. & P. 275; Lloyd v. Spillet, 2 Atk. 150; Dyer v. Dyer, 
 2 Cox, 92 ; Eider v. Kidder, 10 Ves. 360 ; Aveling v. Knipe, 19 Ves. 
 441; Wray v. Steele, 2 Ves. & B. 388; Vickers v. Cowell, 1 Bea. 529. 
 
 11 
 
162 ADAMS'S DOOTEINE OF EQUITY. 
 
 parately considered under the head of Meritorious Con- 
 sideration. 
 
 In accordance with the same principle it is held that • 
 if land is acquired as the substratum of a partnership, 
 or is brought into and used by the partnership for part- 
 nership purposes, there will be a trust by operation of 
 law for the partnership, as tenants in common, although 
 a trust may not have been declared 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. (A;) 
 
 Another class of cases, in which the circumstances 
 give rise to the presumption of a resulting trust, is 
 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. 
 
 *If therefore a man is a trustee of certain 
 L -I funds for investment in land, or has bound him- 
 self by covenant to lay out money on land, and he pur- 
 chases an estate at a corresponding price, it will be pre- 
 sumed, independently of positive evidence, that his ob- 
 ject in the investment was to effectuate the trust ; and a 
 trust may be implied accordingly. But it will be ob- 
 served that this is not as a hostile or compulsory decree, 
 but on the supposition that such a result was really con- 
 templated ; and therefore if the contrary be proved, as 
 by showing that the purchase was made under a mis- 
 taken opinion of the trust, the presumption cannot be 
 raised. It is otherwise if the covenant be to settle such 
 land as the covenantor may have on a specified day, or 
 to purchase a specific estate, which he afterwards ac- 
 quires ; for in these cases the trust attaches by virtue of 
 
 Qt) Dale v. Hamilton, 5 Hare, 369, 382 ; 2 Ph. 266. 
 
ORDINARY AND CHARITABLE TRUSTS. 163 
 
 the covenant, independently of any intention in the 
 party bound.(Z)' 
 
 (0 Tooke V. Hastings, 2 Vern. 97 ; Deacon v. Smith, 3 Atk. 323 ; 
 Perry v. Phelips, 4 Ves. 108 ; Wellesley v. Wellesley, 10 Sim. 256 ; 4 
 M. & C. 561. 
 
 ^ [Besides that described in the text, there is another class of trusts 
 " created by operation or implication of law," which are usually denomi- 
 nated constructive trusts, and are of much importance and frequency. 
 This class comprehends those cases where the holder of the legal estate 
 in property, cannot also enjoy the beneficial interest therein, without 
 violating some established principle of equity. The chief instance of 
 this occurs when the property has been acquired by fraud, actual or 
 constructive. As the leading doctrines on this subject will be found 
 discussed in other parts of this volume, particularly under the head of 
 Kescission and Cancellation (post. 174, foil.), it is sufficient to state 
 here, that where a party, actively or passively guilty of fraud, has 
 thereby obtained the legal title, he is treated by equity, in general, as a 
 mere trustee for the parties injured, and subjected to the consequent 
 liabilities. The agency of constructive trust is also employed in cases 
 where no fraud has been committed in the acquisition of the title, for 
 the vindication or enforcement of other equitable principles. Thus, on 
 an agreement for the sale of land, the vendor is before actual convey- 
 ance treated as trustee for the vendee. So of an encumbrancer such as 
 a mortgagee, who has obtained a conveyance as security for the payment 
 of money, and the money has been repaid. So, one to whom property 
 is conveyed by a trustee, without notice of the trust, but on no valuable 
 consideration, or with actual or constructive notice, takes it subject to 
 the original trusts. Many other similar instances might be put, but they 
 all reduce themselves to the general principle, that wherever a man can- 
 not hold property beneficially and for himself, except by fraud or in con- 
 travention of equity, he holds it as trustee for those, who in contempla- 
 tion of equity are entitled thereto. 
 
 Constructive, like resulting trusts, are excepted out of the Statute of 
 Frauds, and may therefore be proved by parol. The rules which are 
 applied to them, wheh established, are in general the same with those 
 which govern direct trusts, but they are not in every respect identical. 
 For instance, it is a fixed principle with regard to the latter, that lapse 
 of time, by itself, will not bar their enforcement, but in respect to the 
 
164 ADAMS'S DOCTRINE OF EQUITY. 
 
 The second requisite to the creation of a trust is that 
 the ownership be accepted on the proposed terms. The 
 eflfect 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 trustee 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 purposes of the 
 gift, or will nominate, if required, a trustee of its own, 
 to whom the estate may be conveyed. And it is pro- 
 vided 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 (*where there were several 
 ■- -J 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 re- 
 fuse 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. 
 
 former the question of laches is a most material one, both with ^efe^ 
 enee to their establishment, and to the consequent relief which is 
 given ; indeed in some cases the Statute of Limitations is directly fol- 
 lowed. There are other distinctions, also, as to the privileges whict 
 trustees may claim, as to the fiduciary relationship of the parties, as to 
 costs, and other matters, which cannot be dwelt upon here, but which 
 are fully considered in the text-books on the subject.] 
 
 ' [Equity never suffers a trust to fail on account of the neglect or re- 
 
ORDINARY AND CHARITABLE TRUSTS. 165 
 
 If, however, there is not merely a failure of the 
 specific trustee, but the estate derived from the donor 
 
 fusal of the trustee to act, but if necessary will either appoint a new 
 trustee, or treat the holder of the legal title as such. Sheppard v. Mc- 
 Evers, 4 John. Ch. 136 ; De Barante v. Gott, 6 Barb. S. C. 492 ; Cro- 
 cheron v. Jaques, 3 Edw. Ch. 207 ; King v. Donnelly, 5 Paige, 46 ; 
 Cushney v. Henry, 4 Paige, 345 ; McKennan v. Phillips, 6 Whart. 
 571 ; Dawson v. Dawson, Eice Eq. 243 ; Lee v. Randolph, 2 Henn. & 
 Munf. 12; Mclntire School v. Zan. Canal & M. C. 9 Hamm. 203; 
 Griffith V. Griffith, 5 B. Monr. 113 ; Field v. Arrowsmith, 3 Humph. 
 442; Peter v. Beverly, 10 Peters, 534. As to the power of a Court of 
 Chancery to appoint new trustees, and the occasions when that power is 
 to be exercised, see Hill on Trustees, p. 268, 2d Am. Ed. and notes. 
 A trustee is at liberty at any time before acceptance to disclaim or re- 
 fuse the trust. Maccubbin v. Cromwell, 7 Gill & John. 157 ; Trask v. 
 Donoghue, 1 Aik. 370. It is always to be inferred, however, in the first 
 instance, that a gift by deed or will is accepted by the donee : Wilt v. 
 Franklin, 1 Binn. 502; Eyrick v. Hetrick, 13 Penn. St. 494 ; Read v. 
 Robinson, 6 Watts & Serg. 331; 4 Kent Comm. 500; and after the 
 lapse of a great length of time, as twenty-five years, without disclaimer, 
 the trastce having notice, acceptance of the trust may be presumed. 
 Eyrick v. Hetrick, 13 Penn. St. 493 ; see Penny v. Davis, 3 B. Monr. 
 314 ; re Uniacke, 1 Jones & Lat. 1. It is not necessary, in order to 
 the acceptance of the trust, where created by deed, that there should be 
 any execution thereof by the trustee, except so far as regards his legal 
 liability upon the covenants contained therein : Flint v. Clinton Co., 
 12 N. H. 432 ; but it will be presumed from any act in the manage- 
 ment of the trust estate ; and the rule is the same as to trusts created 
 by will. Flint v. Clinton, Co., ut sup. ; Chaplin v. Givens, Rice Eq. 
 133 ; Latimer v. Hanson, 1 Bland, 51 ; Maccubbin v. Cromwell, 7 G. 
 & J. 157. Where the trustee is also executor, probate of the will is an 
 acceptance as to personalty at least. Worth v. McAden, 1 Dev. & Batt. 
 Eq. 207. Where one of several trustees disclaims, the trust estate de- 
 volves on the remainder. King v. Donnelly, 5 Paige, 46 ; Trask v. 
 Donoghue, I Aik. 370; Putnam Free School' v. Fisher, 30 Maine, 
 523; Jones v. MafFet, 5 S. & Rawle, 523; Taylor v. Galloway, 1 
 Hamm. 232. Where, however, there has Once been acceptance, a 
 trustee cannot afterwards, by any renunciation or disclaimer, rid himself 
 of the duties of his office, except by consent of all parties, or by the 
 
166 ADAMS'S DOCTRINE OF EQUITT. 
 
 is at an end, and there is an owner holding by a para- 
 mount 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 a. 
 purchaser for value without notice of the trust. And, 
 if he do not accept it, it is in like manner 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 for- 
 feiture 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 with- 
 out an heir, in like manner as when his heir is un- 
 certain. («) 
 
 The acceptance of a trustee may be direct, by execu- 
 tion 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 duties imposed, (o) 
 And in like manner his renunciation may be evidenced 
 
 (») 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. [See Hill on Trustees, 2 Am. Ed. 62, and notes.] 
 
 (o) Urch V. Walker, 3 M. & C. 702 ; Kirwan v. Daniel, 5 Hare, 
 493. 
 
 intervention of the Court of Chancery. Shepherd v. McEvers, 4 John. 
 Ch. 136; Cruger V. Halliday, 11 Paige, 314; Latimer v. Hanson, 1 
 Bland, 61 ; Chaplin v. Givens, 1 Rice Eq. 183 ; Drane v. Gunter, 19 
 Alab. 731.] 
 
 ^ [See Stuyvesant v. Hale, 2 Barb. Ch. 151 ; Woods v. Farmere, 7 
 Watts, 382.] 
 
ORDINART AND CHARITABLE TRUSTS. 167 
 
 by his conduct, without an express declaration to that 
 effect. But the more prudent course is to execute a 
 deed of disclaimer, (js) If, instead of a formal dis- 
 claimer, he execute an immediate release to his co- 
 trustees for the mere purpose of disclaiming, *it r*Qo-i 
 seems doubtful whether such a release, although 
 technically a dealing with the property, M'ould 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 special power in 
 the instrument creating the trust ; and 3. By an appli- 
 cation 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 coverte interested, or if there is a 
 
 (p) Staeey v. Elph, 1 M. & K. 195. [See Judson v. Gibbons, 5 
 Wend. 224; Maccubbin v. Cromwell, 7 Gill. & Johns. 165.] 
 
 (q) Nicloson V. Wordsworth, 2 Swanst. 365 ; Urch v. Walker, 3 M. 
 & C. 702. 
 
 ^ A trustee after he has accepted a trust cannot discharge himself 
 from liability by resignation merely ; he must be discharged in one of 
 the three methods named in the text. Cruger et al. 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 connection 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. [See Hill on Trustees, 2d Am. ed. 
 268, &c., and notes.J 
 
168 ADAMS'S DOCTRINE OF EQUITY. 
 
 trust for children not in esse, or if for any other reason 
 the sanction of all cannot be obtained, then the mere 
 act of transfer would be a breach of trust ; and there- 
 fore the trustee cannot, by his own act, relinquish his 
 office, but would incur an additional liability for any 
 misconduct on the part of his transferree. 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 provisions 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 pui-pose will be paid out of the estate ; as, for 
 instance, if he becomes involved in complicated ques- 
 tions, which could not have been anticipated when he 
 undertook the trust ; but he cannot burden the estate 
 with costs occa.sioned by a capricious abandonment 
 p^oQ-j *of his charge, (r) After a bill has been filed for 
 the appointment of new trustees, it is improper, 
 though not absolutely incompetent, for the original 
 trustees, to make an appointment without authority 
 from the Court, notwithstanding there may be a power 
 of appointment in the deed of trust ; nor will the exis- 
 tence of such a power induce the Court to appoint new 
 trustees on the nomination of the old ones, without in- 
 quiry as to the fitness of the parties nominated, (s) In 
 
 (r) Coventry v. Coventry, 1 Keen, 758 ; Grreenwood v. Wakeford, 1 
 Bea. 576. [Matter of Jones, 4 Sandf. Ch. 615 ; Cruger v. Halliday, 
 11 Paige, 314 ; Courtenay v. Courtenay, 3 Jones & Lat. 529.] 
 
 (s) Attorney-General v. Clack, 1 Bea. 467;, Cafe v. Bent, 8 Hare, 
 245 ; V. Koberts, 1 J. & W. 251. 
 
ORDINARY AND CHARITABLE TRUSTS. 169 
 
 some decrees appointing new trustees, a power for such 
 new trustees to supply future vacancies without a fresh 
 appHcation to the Court has been inserted, but the ad- 
 missibiUty of such a power, except under special circum- 
 stances, appears to be doubtful, (t) ' 
 
 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 appointment of new trus- 
 tees, (m) 
 
 A trustee of stock or money is now enabled to get rid 
 of his trust by payment or transfer to the Accountant- 
 General, without the necessity of filing a bill. For 
 this purpose, it is enacted that all trustees, executors, 
 administrators, or other persons, holding moneys, stock, 
 or government or parliamentary securities, belonging to 
 any trust, or the major part, may pay, transfer, or de- 
 posit them into or in the name of the Accountant-Gene- 
 ral, on filing an affidavit shortly describing the instru- 
 ment creating the trust ; and that the application of the 
 fund shall be afterwards regulated by the Court on 
 petition, (v) 
 
 So soon as the creation and acceptance of a trust are 
 perfected, the property which it affects is subjected, as 
 we *have seen, to a double ownership; an equit- r^j^n-i 
 able ownership in the cestui que trust, and a legal 
 ownership in the trustee. 
 
 (0 White V. White, 5 Bea. 221 ; Bowles v. Weeks, 14 Sim. 591. 
 (m) 1 Wm. 4, c. 60. (v) 10, 11 Viot. o. 96. 
 
 ^ [It is now established that such power cannot be exercised by the 
 Court. Holdin v. Durbin, 11 Beav. 574; Oglander v. Oglander, 2 
 De G & Sm. 381.J 
 
170 ADAMS'S DOCTRINE OF EQUITY. 
 
 The equitable ownership or interest of the cestui 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 generally regulated by 
 principles corresponding with those which apply to au 
 estate at law. The terms in which it is declared are in- 
 terpreted by the same rules ; it is subject to the same re- 
 straints of policy, and is governed by the same laws of 
 devolution and transfer. The analogy, however, is not 
 free from exception ; and the character of the exceptions 
 which exist, together with the general operation of the 
 rule, will now form the subject of consideration. 
 
 I. The terms in which a trust is declared are inter- 
 preted 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 executed trust, 
 i. e., a trust of which the scheme has in the outset been 
 completely declared, will bear exactly the same construc- 
 tion as if it had been a conveyance of the legal estate. 
 If the scheme has been imperfectly declared in the out- 
 set, and the creator of the trust has merely denoted his 
 ultimate object, imposing on the trustee or on the Court 
 the duty of eflFectuating it in the most convenient way, 
 the trust is called executory, and is construed by a less 
 stringent rule.^ 
 
 ' 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 himself, or to another in 
 trust for him. Trotter v. Blocker, 6 Porter, 269 ; see Cudworth v. Hall's 
 Adm'r, 3 Desau. 256. 
 
 ^ [The distinctions between executory and executed trusts, especially 
 with regard to the application of the rule in Shelley's case, are generally 
 
ORDINARY AND CHARITABLE TRUSTS. 171 
 
 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 language already 
 used is not meant as a conclusive declaration of its terms. 
 And such language is accordingly 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 favor 
 *of one for life, with remainder to his issue, sub- 
 ject to a proviso that he shall not bar the entail, L -■ 
 the first taker will be tenant in tail, under the rule in 
 Shelley's case, and the proviso will be void as inconsis- 
 tent with his estate. But if the trust were executory, 
 a similar direction would be held to signify 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 directing a strict settlement, 
 i. e., an estate to himself for life, with a limitation to 
 trustees to preserve contingent remainders, with re- 
 mainder to his sons successively in tail. 
 
 In the case of executory marriage articles, there is 
 an indication furnished by the nature of the instrument, 
 independently of any expressed intention leading to this 
 construction of the trust ; for it is assumed, in accor- 
 dance with ordinary practice, and in the absence of rea- 
 son to conclude the contrary, that the settlement con" 
 templated by such articles is one which will not only 
 
 recognized in the United States. Dennison v. Goehring, 7 Penn. St. 
 177 J Wood V. Burnham, 6* Paige, 518 ; Tallman v. Wood, 26 Wend. 
 19 : Home v. Lyeth, 4 Harr. & J. 434 ; Garner v. Garner, 1 Desaus. 
 444 ; Porter v. Doby, 2 Eich. Eq. 49 ; Edmondson v. Dyson, 2 Kelly, 
 307 ; Lessee of Findlay v. Eiddle, 3 Binney, 152 ; Neves v. Scott, 9 
 How. U. S. 211 ; Berry v. Williamson, 11 B. Monr. 251 ; Imlay v. 
 Huntington, 20 Conn. 162; Saunders v. Edwards, 2 Jones's Eq. 134; 
 Wagstaffe v. Lowerre, 23 Barb. 215.] 
 
172 ADAMS'S DOCTRINE OF EQUITY. 
 
 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- 
 sumed object. In the case of wills, on the other hand, 
 there is no such prima facie indication of intent. The 
 gifts in a will are mere bounty, and are themselves the 
 only guide in the construction of their terms. If, there- 
 fore, technical words are used, and are not modified or 
 explained by the context, it seems that the trusts, whe- 
 ther 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 
 P heirs of *his body (especially if the gift for life 
 
 '- -'be made in terms unimpeachable of waste) ; or 
 from a limitation to preserve contingent remainders ; or 
 a limitation 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 themseh'es create 
 an entail, (w) 
 
 (w) Austen v. Taylor, 1 Eden, 361 ; Blackburn v. Stables, 2 Ves. & 
 B. 367 ; Jervoise v. Duke of Northumberland, IJ. & W. 559; Rooli- 
 ford V. Fitzmaurice, 1 Conn. & L. 158 ; 2 Jarm. on Wills, 253-266 : 
 Lewin on Trustees, 4-561. [See Garner v. Garner, 1 Desaus. 444; 
 Berry v. Williamson, 11 B. Monroe, 251 ; Imlay v. Huntingdon, 20 Conn. 
 146 ; Carroll v. Rcnich, 7 Snj. & Slarsli. 799 ; Neves v. Scott, 9 How. 
 U. S. 196 ; and see a discussion of the subject in Egerton v. Brownlow, 
 4 House Lds. Cas. l.J 
 
OEDINART AND CHARITABLE TRUSTS. 173 
 
 In cases where marriage articles, after limiting a free- 
 hold estate in strict settlement, have directed that lease- 
 holds shall be settled on analogous trusts, or that pic- 
 tures or other personal chattels shall be settled to go as 
 heirlooms 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 incapable 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 perpetuity, viz., a life in 
 being, and twenty-one years afterwards, by directing that 
 on the death of a tenant in tail, without issue, the per- 
 sonalty shall go by way of executoiy 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 without issue, (x) 
 
 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 ■,{i/y it cannot be made incapable of 
 alienation by the owner, or be denuded of any other 
 
 (x) Duke of Newcastle v. Countess of Lincoln, 3 Ves. 387, 12 Yes. 
 218 ; Lord Deerhurst v. Duke of St. Albans, 5 Madd. 232. [See Kow- 
 land V. Morgan, 13 Jur. 23 ; S. C. 2 Phill. 764.J 
 
 (y) Du Hourmelin v. Sheldon, 1 Bea. 79 ; 4 M. & C. 525. 
 
 ' [Atkins V. Kron, 5 Ired. Eq. 207 ; Hubbard v. Goodwin, 3 Leigh. 
 492 ; Leggett v. Dubois, 5 Paige, 114 ; Taylor v. Benham, 5 How. U. 
 S. 270. But it is different as to the proceeds of real estate, directed to 
 be sold by will ; an alien being able to hold personalty. Craige v. Leslie, 
 3 Wheat. 563. ; Comm. v. Martin, 5 Munf. 117.] 
 
174 Adams's doctrine of equity. 
 
 right incidental to ownership ; (z)^ nor can it be settled 
 in a *series of limitations extending, or which 
 L J 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 duration 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 payment 
 of debts, or for raising portions for children, or to any 
 directions touching the preservance of woods of tim- 
 ber. (6)^ 
 
 (z) Brandon v. Robinson, 18 Ves. 429. 
 (a) 1 Jarm. on Wills, c. ix, s. 2. 
 
 (i) Thelusson v. Woodford, 4 Ves. 227, 11 Ves. 112 ; 39 and 40 Geo. 
 3, c. 98 ; 1 Jarm. on Wills, c. ix, s. 8. 
 
 ^ [Rochford t. Hackman, 9 Hare, 475. This doctrine is of most im- 
 portance, and has been most frequently applied, in cases where it has 
 been attempted to control alienation by a tenant for life, especially in 
 order to prevent the trust property being made subject to his debts, in 
 case of insolvency. It is fully established in England, that any proviso 
 of such a nature is entirely void, unless accompanied by a limitation over 
 on the occurrence of the event intended to be guarded against; and so 
 the law has been held in the United States, in Hallet v. Thompson, 5 
 Paige, 583 ; Dick v. Pitchford, 1 Dev. & Batt. Eq. 480. But in Penn- 
 sylvania, and Kentucky, such proviso is held good, whore the cestui que, 
 trust is himself entirely excluded, by the terms of the trust, from any 
 control over the property. Vaux v. Parke, 7 Watts & S. 19 ; Pope v. 
 Elliott, 8 B. Monr, 56.] 
 
 ' See ante, note 1 to page 40 ; and see the subject of perpetuities, dis- 
 cussed in Lorillard v. Coster, 5 Paige C. R. 172, [Hillyard v. Miller, 10 
 Penn. St. 335.J 
 
ORDINARY AND CHARITABLE TRUSTS. 175 
 
 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 reference 
 to married women ; the one in what are called the sepa- 
 rate use and pin-money trusts, enabling a married woman 
 to hold property independent of her husband, and allow- 
 ing such property to be made inalienable ; the other in 
 what is called the wife's equity for a settlement, restrain- 
 ing the husband's right over 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 contrtivention of the principles 
 of law, to acquire property independently of her hus- 
 band ; and to enter into contracts, and incur liabilities 
 in reference to such property, and dispose of it as a feme 
 sole, notwithstanding her coverture and disability at 
 law.^ When this object had been effected, it was found 
 that the influence of the husband in inducing his wife 
 to alienate, rendered the trust in practice nugatory ; and 
 to obviate this diflBculty, *and secure to her the 
 desired protection against the marital rights, ■- -' 
 another principle was infringed, by deciding that the 
 gift of the separate estate, whether for life or for an ab- 
 solute interest, might be fettered and qualified by pro- 
 hibiting anticipation or alienation, (c) The question 
 then arose, whether the operation of such a clause was 
 confined to an existing coverture, or might be extended 
 
 (c) Baggett V. Meux, 1 Coll. 138 ; 1 Ph. 627. [Rennie v. Ritchie, 
 12 01. & Fin. 204 ; GafiFee's Trust, 1 Macn. & Gord. 541.J 
 
 ' [Upon the trusts for separate use in the United States, see 2 Kent's 
 Comm. 162 ; notes to Hulme v. Tennant, 1 Lead. Cases in Eq. Am. 
 Ed. 370 ; Hill on Trustees, 2 Am. Ed. 607, &c.J 
 
176 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 mar- 
 riage ; and it might therefore have been expected that, 
 by the act of marriage, the usual interest would be con- 
 ferred on the husband. A contrary decision, however, 
 was no| a greater violation of principle 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 enjoyment of property in other cases. And 
 in accordance with this view, it was decided that, al- 
 though the prohibitory clause is nugatory whilst the 
 discoverture lasts, yet if the property be not disposed of 
 during that period, the prohibition will attach immedi- 
 ately on the second marriage. {dy At this point, how- 
 
 (d) Tullet V. Armstrong, 1 Bea. 1 ; 4 M. & C. 377. [Gaffee's Trast, 
 1 Macn. & Gord. 541.J 
 
 ' [The later English doctrine, as stated in the text, has been followed in 
 the United States, in Beaufort v. Collier, 6 Humph. 487; Shirley v. SMr- 
 ley,9 Paige, 363; Fellows v.Tann, 9 Alab.1003; Fears v. Brooks, 12 Geo. 
 197 ; Waters v. Tazewell, 9 Maryl. 291. But in Hamei-sley v. Smith, 4 
 Whart. 126; Kuhn v. Newman, 26 Penn. St. 227; Lindsay v. Harrison, 3 
 Eng. Ark. 311 ; and see Dick v. Pitchford, 1 Dev. & Batt. Eq. 480; the 
 separate use and the clause against anticipation were held to be valid only 
 where there was an existing coverture, and ineffectual as regards a subse- 
 quent one. Upon Hamersley v. Smith, however, it is to be remarked, that 
 it was based upon the English decision of Massey v. Parker, 2 M. & K. 
 174, which has since been repeatedly overruled ; and that in so far, there- 
 fore, its authority has been weakened. And it is difficult, moreover, to 
 assent to the reasoning in that case, without denying the validity of the se- 
 parate use altogether. For if such a restraint upon ownership be lawful 
 when applied to a state of coverture, the obvious contrivance of giving 
 an unfettered estate to the woman while sole, with express limitations 
 
ORDINARY AND CHARITABLE TRUSTS. 177 
 
 ever, a line has been drawn ; and the separate use trust 
 is 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 vio- 
 lates principle beyond the authorized limit, and is for 
 that reason invalid. A deed, however, which contem- 
 plates an immediate separation, and makes a separate 
 provision for the wife, with a view to that object, may 
 be sustained and enforced, notwithstanding that its pri- 
 mary object — the separation itself — is incapable of en- 
 forcement by either party. But such a provision is up- 
 held on the ground of its legal validity, and not on the 
 footing of a separate trust. The consistency of the doc- 
 trine *which thus invalidates the primary object 
 of a deed, but gives effect to a collateral one, was L -' 
 doubted by Lord Eldon, but he felt himself bound by 
 the decisions at law. If after a provision has been made 
 for an immediate separation, the parties come together 
 again, its operation is at an end with respect to any 
 future, as well as the past, separation, (e)^ 
 
 (e) Lord St. John v. Lady St. John, 11 Ves. 537 ; Westineath v. 
 Salisbury, 5 Bligh, 339; [Cartwright v. Cartwright, 17 Jur. 584;] 
 Frampton v. rrampton, 4 Bea. 287 ; Jodrell v. Jodrell, 9 Bea. 45 ; 
 [Webster v. "Webster, 22 L. J. Ch. 837.] 
 
 over to a trustee for the separate use, &c., upon the occurrence of the 
 next and succeeding covertures, would obviate any objection which could 
 be urged. If this be so, it would be contrary to every principle of equity, 
 to hold that the mere absence or imperfection of the proper machinery, 
 where the intention to create such a trust was obvious, would interfere 
 with its enforcement.] 
 
 ' A contract between husband and wife for immediate separation, 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 ; [Champlin v. 
 Champlin, 1 HofiF. Ch. 55; Button v. Duey, 3 Penn. St. 100 ; Simpson v. 
 Simpson, 4 Dana, 140 ; Eogers v. Rogers, 4 Paige, 518 ; Carter v. Carter, 
 
 12 
 
178 ADAMS'S DOCTRINE OF EQTJITT. 
 
 The language which will create a separate trust, as 
 well as that which will impose a fetter on anticipation, 
 has been the subject of nice distinctions. It is not suffi- 
 cient 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 
 
 14 Sm. & M. 59 ; Barron v. Barron, 24 Verm. 375 ; McKennan t. 
 Phillips, 6 Wharton, 571 ; Reed v. Beazley, 1 Blackf. 97 ;] 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 iavali- 
 date the agreement. Carson v. Murray. But see Rogers v. Rogers, 4 
 Paige C. R. 516 J Wallingsford v. Wallingsford, 6 Har. & J. 485; 
 McKennan v. Phillips, 6 Wharton, 571 ; MoCrocklin v. McCroeklin, 2 
 B. Monr. 370. [Although generally the provisions of a separate deed 
 are annulled by reconciliation and re-cohabitation, yet the husband may 
 conduct himself subsequently so as to create new obligations on the foot- 
 ing of those in the separate deed. As where in a deed of separation, 
 the husband covenanted to pay an annuity to the wife for her life, and 
 subsequently, after living apart for a while, he promised her that if she 
 would come and live with him again, the annuity should be continued, 
 it was held that the annuity was not forfeited by re-cohabitation. Web- 
 ster V. Webster, 22 L. J. Ch. 837 ; 27 Id. 115. 
 
 In England, it is now established, that specific performance of articles 
 of agreement for a separation, so far as they regard an arrangement of 
 property agreed upon, may be decreed. Wilson v. Wilson, 1 H. Lords 
 Gas. 538. See S. C. 5 H. Lds. 40. And a covenant to live separate 
 will be enforced by injunction: Sanders v. Rodway, 16 Jur. 1005; 
 though where the agreement contains provisions for the education of the 
 children, which are contrary to public policy, it cannot be enforced in 
 any part. Vansittart v. Vansittart, 27 L. J. Ch. 295. But a different 
 doctrine from that established in Wilson v. Wilson is still held in the 
 United States. See cases collected in Hill on Trustees, 2d Am. ed. 
 621 ; Calkins v. Lang, 22 Barb. 97.] 
 
ORDINARY AND CHARITABLE TRUSTS. 179 
 
 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 pHmd facie incidental to ownership. (^)^ 
 
 (/) Tyler v. Lake, 2 R. & M. 183 ; Massey v. Parker, 2 M. & K. 
 174 ; Blacklow v. Laws, 2 Hare, 49. 
 
 (g) Brown v. Bamford, 11 Sim. 127; 1 Ph. 620 ; Medley v. Horton, 
 14 Sim. 222 ; Baggett v. Meux, 1 Coll. 133 ; 1 Ph. 627 ; [Cooke v. 
 Husbands, 11 Maryl. 504 ; Ross's Trust, 1 Sim. N. S. 196.] 
 
 ' No technical words are necessary to create a separate estate ; any 
 words indicating an intention to exclude the husband are sufficient 
 Ballard v. Taylor, 4 Desau. 550 ; Hamilton v. Bishop et al. 8 Yerg. 33 
 Roane's Ex'rs v. Hern, 1 Wash. 47 ; [Perry v. Boileau, 10 S. & R, 
 208 ; Lewis t. Adams, 6 Leigh, 320 ; Fears v. Brooks, 12 Geo. 197 
 Beaufort v. Collier, 6 Hump. 487 ; Heathman v. Hall, 3 Ired. Eq. 414 : 
 Evans V. Knorr, 4 Rawle, 66; Cochran v. O'Hern. 4 Watts & S. 95 
 What words will create separate use, see Hill on Trustees, 2d Am. ed, 
 609, &c. ;] and in marriage settlements the most favorable exposition 
 will be made of words in order to sustain the intention of the parties. 
 Horry v. Horry, 2 Desau. 125 ; Gause v. Hale, 2 Ired. Ch. 241 ; Gail- 
 lard V. Porcher, 1 McMullin Ch. 358. 
 
 ^ [A direction to pay the income of the trust estate to the married 
 woman " from time to time," is not sufficient to create a restraint against 
 alienation. Cooke v. Husbands, 11 Maryl. 504. But see Baker v. 
 Bradley, 25 L. J. Ch. 7. In Freeman v. Flood, 16 Georgia, 528, how- 
 ever, a gift of personal property to a married woman " to remain in her 
 possession, and be for her special use and benefit, during her natural life, 
 and, after her death, to go to her children, and for no other use whatever," 
 was held to create such a restraint. And in Baker v. Bradley, 25 L. J. 
 Ch. 7, in the Court of Appeal in Chancery, it was held that a direction 
 that the receipts of the married woman, or of some one authorized by 
 her to receive the same, after it had become due, should alone be a suffi- 
 cient discharge to the trustees, was sufficient. 
 
 The restraint on alienation, though a creature of the Court of Chan- 
 cery, cannot be dispensed with by the Court, even where the interest of 
 the married woman might require it. Thus, where a testator gave a 
 legacy to a married woman, on condition that she should convey to a 
 third person her interest in a certain property of small value, included 
 
180 ADAMS'S DOCTRINE OF EQUITY, 
 
 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 pro- 
 ceed 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 power over it. It is suflBcient that she pro- 
 fesses to act as a, feme sole. For the Court of Chancery, 
 in giving her the capacity to hold separate property, 
 r*4fii gi'^'^s also the capacity, incident *to property in 
 general, of incurring debts to be paid out of it ; 
 and enforces payment of such debts when contracted, 
 not as personal liabilities, but by laying hold of the 
 separate property, as the only means by which they can 
 be satisfied. (A) ' 
 
 (h) Murray v. Barlea, 4 Sim. 82 ; 3 M. & K. 209 ; Aylett v. Ashton, 
 1 M. & C. 105 ; Tullett v. Armstrong, 4 Bea. 319 ; Owens t. Dickin- 
 son, Cr. & P. 48 ; Lord v. Wightwick, 2 Ph. 110 ; [Wilton v. HUl, 25 
 L. J. Ch. 157 ; Vaughan v. Vanderstegen, 2 Drew. 363.] 
 
 in an estate which was settled to her separate use, without power of an- 
 ticipation, it was held that the condition could not be accomplished, and 
 the legacy failed. Kobinson v. Wheelwright, 25 L. J. Ch. 385.] 
 
 ^ [In some of the States, the English doctrine, that a feme coverte, 
 unless restrained by the instrument creating the separate estate, has the 
 same power of disposition over it, if personalty, as a feme sole, is fol- 
 lowed. Leaycraft v. Hedden, B Green's Ch. 551 ; Imlay v. Hunting- 
 ton, 20 Conn. 175 ; Coleman v. Wooley, 10 B. Monr. 820 ; Vizonneau 
 V. Pegrani, 2 Leigh, 183 ; Newlin v. Freeman, 4 Ired. Eq. 312 ; Brad- 
 ford V. Greenway, 17 Alab. 805 ; Fears v. Brooks, 12 Geo. 200; Coats 
 V. Eobinson, 10 Miss. 757 ; Cooke v. Husbands, 11 Maryl. 504. In 
 others, however, the feme is held to have only such power as is expressly 
 given her. Lancaster v. Dolan, 1 Eawle, 231 ; Eeid v. Lamar, 1 Strobh. 
 
ORDINARY AND CHARITABLE TRUSTS. 181 
 
 • 
 
 The pin-money trust is so far similfir to that for sepa- 
 rate 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 specifically expended in her dress and 
 personal expenses, lest the husband should refuse her an 
 adequate allowance. 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 probable that, 
 should she refuse to spend it, the husband would be en- 
 titled 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, (i) 
 
 (0 Howard v. Digby, 8 Bligh, 224, 245, 267, 268 ; Beresford v. 
 Archbishop of Armagh, 13 Sim. 643. 
 
 Eq. 27 ; Doty v. Mitchell, 9 Sm. & M. 435 ; Marshall v. Stephens, 8 
 Hump. 159. In New York, the Court of Appeals, in Jaques v. Metho- 
 dist Church, 17 John. 548, overruling a decision of Chancellor Kent, 
 adopted the English rule ; but now, under the Revised Statutes, the 
 interest of a married woman is inalienable, and she cannot charge or 
 affect it in any manner. Noyes v. Blakeman, 3 Sandf. S. C. 538 ; 2 
 Seld. 567 ; Leggett v. Perkins, 2 Comstock, 297. The rule with regard 
 to real estate, both in England and this country, is the same ; that it 
 requires express power to enable a feme coverte to dispose of it. See 
 Hill on Trustees, 613, 2d Am. ed. 
 
 The decisions in the United States, as to the liability of the separate 
 estate to the debts and charges of a feme coverte, arc not uniform. In 
 some of those States in which she is held to possess an implied power 
 over her separate property, the decisions establish, that in order to make 
 a debt a charge on that property, there must be some reference thereto. 
 
182 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 subject in respect to its amount, con- 
 tinuance, and mode of payment, to the discretion of the 
 *Ecclesiastical Court.' The wife has in fact no 
 L J property therein ; and the Court of Chancery 
 can give no relief respecting it, except by granting a 
 writ of ne exeat regno, where the husband is about to 
 leave the kingdom, on the special ground that the Ec- 
 clesiastical Court cannot compel him to find bail.(^) 
 
 {]£) Vandergucht v. De Blaquiere, 8 Sim. 315; 5 M. & C. 229. 
 
 or the debt be contracted for the benefit, or on credit thereof. N. A. 
 Coal Co. V. Dyett, 7 Paige, 14; Dickson v. Miller, 11 Sm. & M. 594; 
 Frazier v. Brownlow, 3 Ired. Eq. 237. In others, the broader English rule 
 is followed. Collins v. Lavenburg, 19 Alab. 685 ; Coats v. Eobinson, 10 
 Missouri, 757 ; Bell v. Kellar, 13 B. Monr. 381 ; Lillard v. Turner, 16 
 Id. 374 ; Whitesides v. Cannon, 23 Missouri, 457. Where, however, 
 no power is attributed to the feme, except such as is expressly given, as 
 in Pennsylvania, the question cannot arise, except perhaps in the case 
 of necessaries. See Wallace v. Coston, 9 Watts, 137. In South Caro- 
 lina, however, the separate estate is held liable for debts contracted on 
 its account, and for its use. Magwood v. Johnston, 1 Hill's Eq. 228; 
 Adams v. Mackay, 6 Rich. Eq. 75. Under the Eevised Statutes, in 
 New York, the trustee alone has the power to subject the estate to debts, 
 for its necessary expenses, &c. Noyes v. Blakeman, 3 Sandf. S. C. 531 ; 
 2 Seld. 567. The equitable doctrines on these subjects are modified in 
 many of the States by the "Married Woman's Acts."] 
 
 ^ [For these reasons no action can be maintained in another State, 
 upon a decree of alimony. Barber v. Barber, 1 Chand. (Wise.) 280. 
 Though arrears before a decree of divorce a vinculis in another State, 
 may be recovered in the latter. Harrison v. Harrison, 20 Alab, 629.] 
 
ORDINARY AND CHARITABLE TRUSTS. 183 
 
 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 re- 
 duced 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 owner- 
 ship, is that in both cases, if the wife survive her hus- 
 band, and no act be done by him to bar her right, she 
 is entitled by survivorship on his decease. But the na- 
 ture of the husband's title and the means by which he 
 may bar his wife's right, differ materially in the two 
 cases. With respect to terms of years and other chat- 
 tels real, the right of the husband is a right to the pro- 
 fits during coverture, with an absolute right of disposal 
 by 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 sur- 
 vives, he takes it as her administrator, and not in his 
 own right. (Z)^ 
 
 In order therefore to exclude the wife's right of sur- 
 vivorship, the husband must assign her chattel real, and 
 
 (0 2 Steph. Blacks. 300. 
 
 ' [For authorities in the United States, on this question, see Hill on 
 Trustees, 2d Am. ed. 598, note, 605, note, and see post 142, note.] 
 
184 Adams's doctrine of equity. 
 
 must reduce into possession her chose in action. And 
 if *he can effectuate this by course of law, there 
 L -J 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 prac- 
 tice 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 property is brought 
 within the control of the Court, and the assistance of 
 the Court is required to give any benefit in it to the 
 husband or his assignee, it is an established equity, 
 founded on long practice, that the 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 settle- 
 ment. It is unaffected by any act or assignment of the 
 husband; and the only mode by which it can be barred, 
 is by the wife's personal waiver in Court on examination 
 apart from her husband. (77?) 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, or 
 
 (m) Elibank v. Montolieu, 5 Ves. 737 ; Murray v. Elibank, 10 Ves. 
 84 ; 13 Ves. 1 : Jolinson v. Johnson, 1 J. & W. 452 ; Sturgis v. 
 Champneys, 5 M. & C. 97 ; Hanson v. Keating, 4 Hare, 1. 
 
 * [It is not material now, in England, that the property should exceed 
 £200. Cutlers' Trust, 14 Beav. 220 ; Kincaid's Trusts, 1 Drewry, 
 826, where it was said that the rule only applied to taking the wife's as- 
 sent to parting with her interest.] 
 
ORDINARY AND CHARITABLE TRUSTS. 185 
 
 on the determination of an existing life estate, the wife 
 is entitled to the whole, notwithstanding her marriage, 
 and there is no interest in the husband on which the 
 equity can attach.^ 
 
 The equity, though called that of the wife, is effectu- 
 ated by a settlement on her children also, as bejng, if 
 the property is settled at all, the most proper 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, though inseparable 
 from hers, is *merely incidental, and does not 
 constitute an independent 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 property, and the children have no equity to 
 compel a settlement, (n) 
 
 (n) Murray v. Elibank, 10 Ves. 84 ; S. C. 13 Ves. 1 ; Lloyd v. 
 Williams, 1 Mad. 450 ; Fenner v. Taylor, 2 E. & M. 190 ; Hodgens v. 
 Hodgena, 11 Bli. 62, 103 ; 4 CI. & N. 323, 371 ; Lloyd v. Blason, 5 
 Hare, 149. 
 
 ' The doctrine stated in the text is sustained by the American autho- 
 rities. Tevis's Rep. v. Richardson's Heirs, 7 Monroe, 654 ; Fabre v. 
 Colden, 1 Paige, 166 ; Smith v. Kane, 2 Paige, 303 ; McElhatton v. 
 Howell, 4 Heywood, 19,24; Kenny v. Udall, 3 Cowen, 590; S. C, 
 Kenny v. Udall, 5 Johns. C. R. 464 ; Elliott v. Waring, 5 Monroe, 
 340 ; Van Duzer v. Van Duzer, 6 Paige, 366 ; Whitesides v. Harris, 7 
 Dana, 107; Andrews & Bro. v. Jones et al., 10 Ala, Rep. 400 ; [Rees 
 V. Waters, 9 Watts, 90 ; Rorer v. O'Brien, 10 Penn. St. 212 ; James 
 V. Gibbs, 1 Patt & Heald, 277 ; Moore v. Money, 14 B. Monroe, 259 ;] 
 Bell V. Bell, 1 Kelly, 637 ; [see also cases in notes to Murray v. Lord 
 Elibank, 1 Lead. Cas. Eq. 348, 1st Am. Ed. ; Hill on Trustees, 2d Am. 
 Ed. 587, note. But not in N. Hampshire, and North Carolina. Par- 
 sons V. Parsons, 9 N. H. 309 ; Allen v. Allen, 6 Ired. Eq. 293.] And 
 a Court of Equity will go to a great length in protecting the wife, and 
 
186 ADAMS'S DOCTRINE OF EQUITT. 
 
 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 income, the equity 
 does not attach ; for the payments during the coverture 
 are properly receivable by the husband ; and those to 
 accrue afterwards are reversionary, and not reducible 
 into the husband's possession, (o) If, however, the hus- 
 band does not in fact maintain his wife, or if he has de- 
 serted 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 pro- 
 perty in trust for creditors, an immediate provision will 
 be directed. In this case it is immaterial whether the 
 wife's interest is for life only, or of a more permanent 
 character ;^ and it is competent for the Court to settle 
 such a proportion on her as the circumstances require, 
 or even to settle the entire income, if the husband has 
 already received other portions of her fortune. If the 
 
 (o) Wright V. Morley, 11 Ves. 12, 18 ; Elliott v. Cordell, 5 Mad. 
 149 ; Stanton v. Hall, 2 R. &. M. 175, 180 ; Stiffe v. Everitt, 1 M. 
 & C. 37. 
 
 the doctrine has been carried so far, that the Court say that the hus- 
 band and his assignees will be restrained in obtaining possession of his 
 property by process of law, if she has no other means of supporting 
 herself and children, unless a suitable provision is allowed her out of it. 
 Van Epps V. Van Deusen, 4 Paige, 63. [The equity to a settlement 
 can only be waived on a privy examination by a commissioner appointed 
 for the purpose. A transfer acknowledged before an ordinary commis- 
 sioner out of the State, will not be enough. Ooppidge v. Threadgill, 3 
 Sneed, 577.] 
 
 ^ [This is overruled with regard to a purchaser for value of a life in- 
 terest of the wife; and no equity to a settlement arises in such case whe- 
 ther the husband maintain her or not. Tidd v. Lister, 28 L. J. Ch. 249; 
 aff'g S. C. 10 Hare, 157.] 
 
ORDINARY AND CHARITABLE TRUSTS. 187 
 
 desertion be on the part of the wife, the Court will give 
 her no benefit from the fund ; but it has been held that, 
 as the husband does not in fact maintain her, he cannot 
 be entitled to the whole property, and the dividends 
 therefore should be paid into Court, (p) 
 
 3. The equitable ownership is governed by the same 
 laws of devolution and transfer as the legal one. 
 
 *The maxims therefore of the common law as p.-„-, 
 to descent, possessio fratris, customs of gavelkind L -^ 
 and borough English, and the like, have been always en- 
 forced by analogy in equity, subject however to an ex- 
 ception in the case of dower, which we shall presently 
 notice. A trust estate may be entailed or otherwise 
 settled by the owner, and will devolve regularly in the 
 line of entail ; it might, until the late statute, be again 
 disentailed by a fine or recovery, and may now be disen- 
 tailed by a statute deed, in the same manner as a legal 
 estate. But a trust of realty is not liable to escheat ; 
 for escheat is merely an incident of tenure, arising out 
 of the feudal system, whereby the escheated estate on 
 the death without heirs of the person last seised escheats 
 to the lord as reverting to the original grantor, there 
 being no longer a tenant to perform the services inciden- 
 tal to the tenure. It is therefore inapplicable to estates 
 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 cestui que trust 
 without heirs, the trustee will have the enjoyment as 
 the legal owner, for there is no one who can sue a sub- 
 
 (p) Ball V. Montgomery, 2 Ves. Jun. 191 ; Duncan v. Campbell, 12 
 Sim. 616 ; Gardner v. Marshall, 14 Sim. 575. [Though see as to adultery. 
 Greedy v. Lavender, 13 Beav. 62 ; Carter v. Carter, 14 Smedes & Marsh. 
 (Miss.) 59.] 
 
188 ADAMS'S DOCTRINE OF EQUITY. 
 
 'poena against him.(g')^ If the descent 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 par- 
 doned, or against his heir if the felon be executed. The 
 forfeiture 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 en- 
 titled, as in the case of a legal estate ; for the incapacity 
 *of an alien is not an incident of tenure, but a 
 L -• 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 es- 
 cheat has no place, but if the cestui que trust die intestate 
 and without leaving next of kin, his interest vests in the 
 Crown as hona vacantia, and if he be convicted of treason 
 or felony, it has always been deemed forfeitable to the 
 Crown, (s) 
 
 (5) 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 ceslvd 
 que trust without heirs or his attainder, vide Burgess v. Wheate, 1 Eden 
 Ch. Cas. 177 ; [Onslow v. Wallis, 1 Macn. & Gord. 506.] 
 
 00 33 Hen. 8, c. 20, s. 2 ; 1 Hale, P. C. 248 ; but see King v. Dao- 
 combe, Cro. Jae. 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 Chancery, as the case may re- 
 quire. 
 
 (s) 1 Steph. Bl. 401, 443 ; 4 Id. 446 ; Att. Gen. v. Sands, Freem. 
 130; Lewin on Trustees, 556; Burgess v. Wheate, 1 Eden, 177; Wil- 
 liams v. Lonsdale, 3 Ves. 752 ; Taylor v. Hagarth, 14 Sim. 8 ; [Cra- 
 dock V. Owen, 2 Smales & Giff. 241.] 
 
 ^ [It may well be doubted whether this proposition would hold under 
 the statutes of distribution in the United States generally. See Mat- 
 thews v. Ward, 10 Gill & John, 443 ; Darrah v. McNair, 1 Ashm. 236; 
 4 Kent's Com. 425.] 
 
ORDINARY AND CHARITABLE TRUSTS. 189 
 
 The subjection of equitable estates to the legal rules 
 of devolution and transfer admits of two exceptions : the 
 one real, in their exemption from dower,' the other ap- 
 parent, in the attendance of satisfied terms on the inhe- 
 ritance. 
 
 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, decided 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 
 trust, and that many estates had been pui'chased on the 
 faith of this opinion, the titles to which would be shaken 
 and much mischief produced, by a decision to the con- 
 trary. And, on this ground of anticipated inconvenience, 
 whether a judicious one 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 
 
 (t) D'Arcy V. Blake, 2 Sch. & L. 387. 
 (m) 3 & 4 Wm. 4, c. 105. 
 
 ' The general principle is, that at common law a wife was not en- 
 titled to dower in a trust estate. Stevens v. Smith, 4 J. J. Marsh. 64 ; 
 Danforth v. Lowry, 3 Heywood, 61 ; Herron v. Williamson, 6 Litt. Sel. 
 Cas. 250 ; Lenox v. Notrebe, 1 Hempst. 251. 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 Braxton v. Lee, 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. 
 
190 ADAMS'S DOCTRINE OF EQUITY. 
 
 the distinction in this respect between legal and equitable 
 estates, *and at the same time gives to the hus- 
 L -I band a control over his wife's dower, which pre- 
 viously 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 por- 
 tions for children, and for other special trusts ; and that 
 after the fulfilment of the trust, the terms continue in 
 existence. It might prima facie 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 execu- 
 tor and not to the heir. But the rule is rightly other- 
 wise. For the trust of the term, under these circum- 
 stances, is not for any individual person, but for the 
 owner of the inheritance, whoever he may be. This 
 would be the effect 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 effect of a surrender would be immediate 
 merger, or by express declaration of the parties. And 
 the trust of such attendant term will follow the descent 
 of the inheritance, and the conveyances, 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 inheri- 
 tance by distinct limitations, (u) The effect of getting 
 
 (v) Willoughby v. Willoughby, 1 Term Kep. 763 ; Capel v. Girdler, 
 9 Ves. 509 ; 3 Sug. V. & P. 10th edit. c. 15. 
 
ORDINARY AND CHARITABLE TRUSTS. 191 
 
 in an attendant term, where two purchasers or incum- 
 brancers are contending for priority, will be hereafter 
 considered under a different h.eadi.{w) 
 
 The doctrine (■!/;w;) of attendant terms will shortly be- 
 come 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 the inheritance, r^ro-i 
 should cease and determine on that day, except 
 for the purpose 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 trans- 
 ferred or changed, where its subJ3ct-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 doctrine that personal 
 property passes at law by mere delivery, which where 
 an equitable interest is transferred, may not be practica- 
 ble ; and therefore, in order to pursue as nearly as pos- 
 sible the analogy of law, it is required that the assign- 
 ment of an equitable 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, (a;) ' It is otherwise with respect to real 
 
 (w) Infra, Priorities. 
 
 (ww) See the case of Doe d. Clay v. Jones, 13 Q. B. 774. 
 
 (a;) Dearie v. Hall, 3 Russ. 1 ; Foster v. Cockerell, 3 CI. & F. 456 ; 
 Jones V. Jones, 8 Sim. 633 ; Wilmot v. Pike, 5 Hare, 14 ; [Voyle v. 
 Hughes, 2 Smales & Grifford, 18; see Kekewichv. Manning, 1 De Gex, 
 Macn. & G. 176; Stocks v. Dobson, 17 Jur. 539.] 
 
 * [In the United States, however, notice is not generally held neces- 
 
192 ADAMS'S DOCTRINE OF EQUITY, 
 
 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 aflfect the terms of 
 his deed. The period at which the transfer of an equity 
 becomes complete is often material to be considered, 
 where such transfer has been made without considera- 
 tion, or where several purchasers or incumbrancers have 
 acquired conflicting rights ; but its effect in these cases 
 will be hereafter separately considered. (2/) 
 
 The principle of constructive delivery by notice to 
 the trustee is applied also to a debt or other cliose 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 secu- 
 rities, is not capable of transfer at law. But if it be in 
 r*p;n ^'^'^^t'''"'^® ^ right *of property, it is treated in 
 •- -^ equity as of that character, and may be trans- 
 ferred by an assignment or agreement to assign perfected 
 by notice to the party liable. If the right is not sub- 
 stantially 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 assignment; for the transaction 
 would be directly adverse to the policy of the law, which 
 prohibits the encouragement of litigation, by the intro- 
 duction of strangers to enforce rights which the owners 
 are not disposed to maintain, (z) 
 
 Of) Infra, Priorities. 
 
 (z) Prosser v. Edmonds, 1 Y. & C. Exoh. 481; Wood v. Downes, 18 
 Ves. 120; Hunter v. Daniel, 4 Hare, 420. [See American note to Eow 
 V. Dawson, 2 Lead. Gas. Eq. p. ii. 236.] 
 
 sary to perfect the assignee's title. U. S. v. Vaughan, 3 Blnn. 394; 
 Muir V. Schenck, 3 Hill, 228 ; Littlefield v. Smith, 17 Maine, 327; 
 Warren v. Copelin, 4 Mete. 594 ; Contra, Vanbuskirk v. Ins. Co. 14 
 Conn. 145. Though a payment without notice is, of course, good.] 
 
ORDINARY AND CHARITABLE TRUSTS. 193 
 
 The regular mode of transferring a debt is by an in- 
 strument purporting to assign it, accompanied by a 
 power of attorney to sue in the name of the assignor, 
 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 appro- 
 priation 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 certain 
 extent assignable in equity' on the same principle 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 assignment ; and so also may the 
 freight to be earned by a ship on some future voyage, 
 although the earning of such freight *is at the time 
 of assignment a mere expectant possibility. (5) L "^J 
 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 
 
 (a) Gardner v. Lachlan, 4 M. & C. 129 ; Thompson v. Speirs, 13 
 Sim. 469 ; Burn v. Carvalho, 4 M. & C. 690 ; Cook v. Black, 1 Hare, 
 390; McFadden v. Jenkyns, 1 Hare, 458; 1 Ph. 153; Malcolm v. 
 Scott, 3 Hare, 39, 52; Braybrooke v. Meredith, 13 Sim. 271. 
 
 (6) Langton v. Horton, 1 Hare, 549. 
 
 ^ [See on this subject, Mitchell v. Winslow, 2 Story, 630; Letcher 
 V. Shroeder, 5 J. J. Marsh. 513; Varick v. Edwards, 1 Hoff. Ch. 382; 
 Merriweather v. Herran, 8 B. Monr. 162.] 
 
 13 
 
194 ADAMS S DOCTRINE OP EQUITY. 
 
 already seen, by a constructive delivery, but in the case 
 of possibilities, the interest, though a substantial 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 deter- 
 mines, (c) 
 
 The next subject for notice is the legal ownership of 
 the trustee, which 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 continues ; 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 per- 
 sonal benefit. 
 
 A trustee is bound- to use his legal dominion for those 
 purposes, and those only, which were contemplated by 
 the grantor.^ If, for instance, he is trustee for sale of 
 
 (c) Meek v. Kettlewell, 1 Hare, 464 ; 1 Ph. 342. [See, however, 
 contra, Kekewich v. Manning, 1 De Gr. M. & Gord. 176.] 
 
 ^ 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 autho- 
 rity to sell except at public auction, although he may promote the in- 
 terests 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 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, llinggold v. Ringgold, 1 Har. & 6. 
 11. And a trustee loaning money on personal security, will be respon- 
 sible for a loss by the ihsolvency of the borrower. Smith v. Smith, 4 
 John. C. R. 281 ; [Nyce's Est. 5 "Watts & Serg. 254; Swoyer's App. 
 5 Penn. St. 377; Hemphill's Appeal, 18 Penn. St. 303; but see Lovell 
 V. Minot, 20 Pick. 119.] 
 
 Where a trustee was directed to invest in the public securities of 
 
ORDINARY AND CHARITABLE TRUSTS. 195 
 
 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 cestuis que trust are duly 
 consulted, and that all prudent precautions are taken for 
 obtaining the full value, {d) If he is a trustee of renew- 
 able leaseholds, he must be careful that the renewals are 
 made in the usual course, and the requisite funds pro- 
 vided for that purpose, (e) If he is a trustee of money 
 secured by covenant, *or of other outstanding; 
 property, he must realize or secure it with all ^ J 
 
 {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. [See for 
 American authorities on powers of sale, notes to Hill on Trustees, 2d 
 Am. Ed. 685.] 
 
 (e) Lord Montfort v. Lord Cadogan, 17 Ves. 485 : Greenwood v. 
 Evans, 4 Bea. 44 ; Shaftesbury v. Marlborough, 2 M. & K. Ill ; Ben- 
 nett V. Colley, 2 M. & K. 233. 
 
 England, and he removed the fund, and invested in this country, by 
 reason of which a loss occurred, he was held to be guilty of a gross vio- 
 lation of the trust, unless the change was made by consent of the cestui 
 que trust, competent to act. Contee v. Dawson, 2 Bland, 264. 
 
 See 5 Johns. C. R. 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 th«y have made use of 
 the money themselves, or have been negligent in not paying over or pro- 
 perly investing it. Green v. Winter, 1 John. C. R. 27, 527; Brown v. 
 Rickets, 4 Id. 303 ; Jenning's Ex'rs v. Davis, 5 Dana, 132 ; Lomax v. 
 Pendleton, 3 Call, 538; Miller v. Beverleys, 4 Hen. & BI. 415 ; McNair 
 V. Ragland et al. 1 Dev. Ch. 516 ; Jordan v. Hunt, 2 Hill Ch. 145 ; 
 11 Paige, 520; 6 John. C. R. 17. See 8 S. & R. 187. And also in 
 special and peculiar cases with compound interest. Schieffelin v. Stewart 
 and others, 1 Johns. C. R. 620 ; Clarkson v. De Peyster, Hopk. Rep. 
 424; Winder V. Diffenderffer, 2 Bland, 166; Wright v. Wright, 2 McC. 
 Ch. 185; Diffenderffer v. Winder, 3 Gill & J. 311. 
 
 [See notes to Hill on Trustees, 2d Am. Ed. 520, 530, for a collection 
 of the American cases on the subject of investment, and of the liability 
 of trustees to interest. J 
 
196 ADAMS'S DOCTRINE OF EQUITY. 
 
 convenient 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 autho- 
 rized by his trust ; and should at the same time execute 
 a declaration of trust, so that in the event of his bank- 
 ruptcy or insolvency the fund may be identified. (5') 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 promissory note ; but such a loan 
 would not be warranted by an authority to adopt such 
 security as the trustee shall think safe;(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) If 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, however, 
 it is invested on an actual securitv, the trustee is not 
 bound to call it in for the mere purpose of reinvestment 
 in consols, unless a direction to that 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 
 
 (/) Maitland v. Bateman, 13 Law Journ. 273. 
 
 {g) Clough V. Bond, 3 M. & C. 49.6 ; Stickney v. Sewell, 1 M. & C. 
 8 ; Ames v. Parkinson, 7 Bea. 379. 
 
 (li) Bullock V. Wheatley, 1 Coll. 130 ; Styles v. Guy, 4 Y. & C. 571, 
 in note ; Walker v. Symonds, 3 Sw. 1, 62. 
 
 (0 Langston v, Ollivant, Coop. 33 ; v. "Walker; 5 Euss. 7. 
 
ORDINARY AND CHARITABLE TRUSTS. 197 
 
 for life with remainder over. The general principle is, 
 
 that a ffift of the kind implies a *conversion into ^ , 
 
 • r 571 
 three iper cent, consols, unless there be something •- -J 
 
 in the language of the will pointing to a continuance in 
 specie, (k) ' 
 
 A trustee is bound to account for and protect the pro- 
 perty whilst his trust continues.^ It is one of his prin- 
 cipal and most important duties that he should keep 
 regular and accurate accounts, clearly distinguishing 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.ij) It is also a most important duty that he should 
 
 (Jc) Howe V. Lord Dartmouth, 7 Ves. 137 ; Pickering v. Pickering, 
 4 M. & C. 289 ; Hinves v. Hinves, 3 Hare, 609 ; Pickup v. Atkinson, 
 4 Hare, 624 ; Mills v. Mills. 7 Sim. 501 ; 1 Jarm. on Wills, 646. 
 
 (/) Pearse v. Green, 1 J. & W. 135 ; Freeman v. Fairlie, 3 Meriv. 
 24, 42. 
 
 ' [See a discussion of this question in Hill on Trustees, 2d Am. Ed. 
 557, and American notes. The leaning of the Courts at present is to 
 treat such a gift as specific, if possible.] 
 
 " 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 mismanage- 
 ment. Case V. Abeel, 1 Paige, 393 ; Brackenridge v. Holland, 2 Blackf. 
 377 ; Myers v. Myers, 2 McC. Ch. Kep. 265 ; Utiea Ins. Company v. 
 Lynch, 11 Paige, 520; Mumford v. Murray, 6 John. C. E. 1; Hart v. 
 Ten Eyck, 2 Id. 513; [Stanley's App. 8 Penn. St. 431; Jenkins v. 
 Walter, 8 Gill & J. 218.] 
 
 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 fur- 
 ther 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. Fur- 
 nam v. Coe, 1 Cai. Ca. 96. 
 
 If a trustee permit a debtor to retain possession of a trust estate, 
 waste, and use it as his own, he will be held responsible for the injury 
 
198 ADAMS S DOCTRINE OF EQUITY. 
 
 protect the property confided to him whilst the trust con- 
 tinues, 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, (m)' 
 
 The duty of retaining the control in his own hands 
 precludes the trustee, not only from assigning the pro- 
 perty 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 inter- 
 fere with his discretion, and defeats pro tanto the object 
 contemplated by the trust. (?i) A trustee, however, is 
 not necessarily precluded from acting by the agency of 
 others, where such a mode of acting is according to the 
 ordinary course of business. For instance, he may em- 
 ploy a steward or agent ; he may direct moneys to be 
 
 (m) 1 Jarm. on Wills, 638 ; 2 lb. Appendix. 
 
 («,) Salway v. Salway, 4 Euss. 60; 2 E. & M. 215. 
 
 to the trust-fund out of his own estate. Harrison v. Mock, 10 Ala. 
 Hep. 185. 
 
 ^ [The tendency of authority in England seems now, however, in favor 
 of the validity of such a devise. See Hill on Trustees, 2d Am. Ed. 
 400, note. Special statutory provisions in some of the United States, 
 obviate the necessity of this discussion.] 
 
 '^ A trustee who has only delegated discretionary power cannot give a 
 general authority to another to execute such power, unless he is spe- 
 cially 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 ; [Berger v. DuflF, 4 John. C 
 E. 368 ; Black v. Erwin, Harper's Law, 411.J 
 
ORDINARY AND CHARITABLE TRUSTS. 199 
 
 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, p^r n-, 
 and he take care to keep the fund separate from ^ -^ 
 his own property, he will not be answerable for inciden- 
 tal 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, IJ. & W. 241 ; 
 Clough V. Bond, 3 M. & C. 490 ; Drake v. Kartyn, 1 Bca. 525 ; Mat- 
 thews V. Brise, 6 Bea. 239. [Sinclair v. Jackson, 8 Cow. 582 ; Haw- 
 ley V. James, 5 Paige, 487.] 
 
 ' Co-trustees are bound to know the receipts, and watch over the con- 
 duct 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 M'^atts & 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. Maccubbin v. Cromwell, 7 Gill and J. 157 ; Spencer v. Spencer, 
 11 Paige, 299; but see 3 Ala. 83 ; 8 Sandf. Ch. 99. 
 
 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. 
 Graham v. Davidson, 2 Dev. & 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. R. 296. 
 
200 ADAMS'S DOCTRINE OF EQUITY. 
 
 It is not meant that in eyery act done under the trust 
 every trustee must actively interfere, for such a course 
 would be practically impossible ; and it is therefore the 
 ordinary doctrine of the Court, that trustees are responr 
 sible for their own acts only, and not for those of each 
 other. If, for instance, there be a sum of money pay- 
 able to several trustees, it is sufficient that one should 
 actually receive it ; and, unless it be afterwards impro- 
 perly left in his hands, the co-trustees will not be re- 
 sponsible. 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 mis- 
 conduct ; 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, there- 
 fore, if all join, it is treated, in the absence of special 
 circumstances, as an admission that the money was 
 under the control of all.(^)^ 
 
 (p) Brice v. Stokes, 11 Ves. 319 ; Walker v. Symonds, 3 Sw. 1, 64; 
 Joy V. Campbell, 1 Sch. & L. 328, 341 ; Gregory v. Gregory, 2 Y. & C. 
 Exch. 313. 
 
 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 special statute, the Court 
 may remove the incompetent trustee, as in the State of New York. 
 Ibid. 
 
 ^ [In some cases, in the United States, it has been held, that this dis- 
 tinction as to executors had been now broken down. Stell's App. 10 
 Penn. St. 152 ; Ochiltree v. Wright, 1 Dev. & Batt. Eq. 336.] 
 
 ' [The liability of joint trustees for each other's acts has not always 
 been enforced with as great strictness in the United States as in Eng- 
 land. The rule has been most frequently stated to be that each is re- 
 
ORDINARY AND CHARITABLE TRUSTS. 201 
 
 The cases, however, in which joint trustees may per- 
 mit some of their body to act in the management with- 
 out themselves incurring personal liability, are very 
 diflferent from those where a trustee so conducts himself 
 as to throw the whole *trust fund into the hands ^^^^^ 
 
 r 59n 
 
 of his colleagues, and to abandon the interests •- -• 
 which it is his duty to protect. Any conduct of this 
 
 sponsible only for his own acts, and not for the acts of the others, unless 
 he has made some agreement by which he has expressly agreed to be 
 bound for the other, or has by his voluntary connivance, enabled one 
 or more to accomplish some known object in violation of the trust. A 
 joinder in receipts, though prima facie, is not, as in the case of execu- 
 tors, conclusive evidence of an interest to be jointly bound, but may be 
 explained. Wherever it is necessary and convenient for the purpose of 
 the trust, that a part or all of the business should be intrusted to one or 
 more of the co-trustees, the others not cognizant of, or concurring in any 
 way in a misapplication of the funds, will not be liable therefor ; though 
 see Maccubbin v. Cromwell, 7 G-. & John. 168. If, however, the acting 
 trustee is known to be unfit for the management of the trust, or is suf- 
 fering under pecuniary embarrassment, the co-trustees will be respon- 
 sible, if they permit money to be received by him or to remain in his 
 hands. And, if a trustee who has actually received money or securities, 
 pays or assigns them to his colleagues without necessity, he will become 
 liable for their misconduct. With regard to the effect of a joinder in 
 sales, which is of course a necessary act, the authorities are not agreed, 
 though it has been held in most cases, that the trustees are jointly re- 
 sponsible for the collection and investment of the purchase-money. 
 Where, indeed, there is an express direction that the trust-fund, or the 
 proceeds of a sale shall be invested in a particular manner, all are bound 
 to see such investment made. In any case, however, where a proper 
 investment has been once made, the liability of the non-acting trustees 
 ceases. It is to be remembered, also, that the innocent trustees are not 
 to be made ultimately responsible for the misfeasance or nonfeasance of 
 the others, unless the latter, by reason of insolvency or the like, cannot 
 be reached. The American authorities which justify these conclusions 
 will be found in the note to Townley v. Sherborne, 2 Lead. Cas. Eq. p. 
 ii, 306 ; Hill on Trustees, 2d Am. ed. 433 ; Story's Equity, § 1280, 
 &e. See Chandler v. Fillett, 25 L. J. Ch. 505.J 
 
202 ADAMS'S DOCTRINE OF EQUITY. 
 
 latter kind is a dereliction from duty, and will make 
 him responsible for consequent loss. If, for instance, he 
 voluntarily aid his co-trustees to commit a breach of 
 trust ; if he neglect to prevent or remedy such breach 
 of trust, when it comes to his knowledge ; if he give faci- 
 lities 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 intrusted to him ; as by a 
 mutual agreement 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 incurred. (5) 
 
 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 equity at 
 the cost of the estate. And a cautious trustee will gene- 
 rally 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 fidu- 
 ciary character for any object of personal benefit. His 
 
 (2) Booth V. Booth, 1 Bea. 125 ; Broadhurst v. Balguy, 1 N. C. 
 C. 16. 
 
 (r) Goodson v. Ellison, 3 Kuss. 583;.Holford v. Phipps, 3 Bea. 434; 
 Whitmarsh v. Robertson, 1 Y. & C. 715 ; Hampshire v. Bradley, 2 
 Coll. 34. 
 
 ^ [The trustee, however, has no right to insist on such a release, where 
 a conveyance is in accordance with the trust ; it is only where he is called 
 upon to depart from the tenor of the trust that he can do so. King v. 
 MuUin, 1 Drewry, 300 ; Hill on Trustees, 2d Am. Ed. 846.] 
 
ORDINARY AND CHARITABLE TRUSTS. 203 
 
 fundamental duty is to do his utmost for the cestui que 
 trust ; and every advantage which he appropriates to 
 himself, must be acquired by a dereliction from that 
 duty. If, therefore, a trustee or executor buy in charges 
 on the estate for less than their actual amount, the pur- 
 chase will inure for the benefit of the trust ;(s) if a trustee 
 
 or executor, *holding renewable leaseholds, renew 
 
 . r*601 
 
 in his own name, he cannot hold for himself, even ^ -• 
 
 though a renewal on the former trusts may have been 
 
 refused by the lessor •,{t) and the same result will follow 
 
 on a renewal 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, (it) In like manner it 
 
 is a breach of trust if a trustee employ 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, (y) 
 
 The most obvious instance of the abuse of a fiduciary 
 
 character is, where a trustee for sale or purchase, at- 
 
 (s) Ex parte Lacey, 6 Ves. 625 ; Hamilton v. Wright, 9 CI. & F. 
 Ill; Ex parte James, 8 Ves. 337, 345. [Green v. Winter, 1 John. 
 Ch. 26 ; Van Home v. Fonda, 5 Id. 409 j Butler v. Hicks, 11 Sm. & 
 Marsh. 78; Mathews v. Dragaud, 3 Desaus. 25; Irwin v. Harris, 6 Ired. 
 Eq. 221.] 
 
 («) 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; Featherstonehaugh v. Fenwick, 17 Ves. 298. 
 
 (v) Hcathcote v. Hulme, 1 J. &. W. 122; Moons v. De Bernales, 
 1 Russ. 301; Melland v. Gray, 2 Coll. 295. [Royer's App. 11 Penn. 
 St. 36 ; Stanley's App. 8 Id. 431 ; Jenkins v. Walter, 8 Gill. & J. 
 218.] 
 
204 ADJtMS'S DOOTRINE OF EQUITY. 
 
 tempts to buy from or sell to himself. The permitting 
 such a transaction to stand, however honest it might be 
 in the particular case, would destroj' 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 there- 
 fore necessary to show that the trustee has in fact 
 made an improper advantage ; 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 incapacity, 
 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 ad- 
 vantage which his character as trustee might confer, 
 r*Aii ^"^ *must prove, if the transaction be afterwards 
 '- -' impugned, that it was in all respects fair and 
 honest, (to) ^ 
 
 (w) Ex parte Lacey, 6 Ves. 625 ; Coles v. Trecothick, 9 Ves. 234, 
 237 ; Ex parte Bennett, 10 Ves. 381 ; Downes v. Grazebrook, 3 Meriv. 
 200, 208; 2 Sug. V. & P. 10th edit. c. xix, s. 2. 
 
 1 Michoud V. Girod, 4 How. U. S. 503 ; De Caters v. Le Kay de Chau- 
 mont, 3 Paige C. E. 178 ; Child v. Brace, 4 Paige C. B. 309 ; Camp- 
 bell 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. Mancius, 7 John. C. R. 174 ; Haddix's Heirs v. Haddix's Adm'is, 5 
 Lit. 202 ; Dorsey v. Dorsey, 3 Har. & J. 410 ; Brackenridge v. Hol- 
 land, 2 Blaekf. 377; Case v. Abeel, 1 Paige, 393; Davoue 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 ; [Reniick v. Butterfield, H 
 Foster, 70 ; Lenox v. Notrebe, 1 Hempst. 25 ; Lefevre v. Laraway, 22 
 
OEDIKARY AND CHARITABLE TRUSTS. 205 
 
 The restraint on any personal benefit to the trustee 
 is not confined to his dealings with the estate, but ex- 
 
 Barb. 167.] A trustee competent to purchase on his own account, can- 
 not 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; [Michoud v. Girod, ut supr. ; 
 Paul V. Squibb, 12 Penn. 296 ; Buckles v. Lafferty, 2 Bob. Va. 292 ; 
 Lewis V. Hillman, 3 H. Lords Cases, 629. But in Beeson v. Beeson, 9 
 Penn. St. 280, it was held that a purchase by a trustee through a secret 
 agent was not absolutely void, unless there were actual fraud.] And if 
 the trustee 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. E. 27. See, also, 
 Boyd V. Hawkins, 2 Dev. Ch. 195; Van Home v. Fonda, 5 John. C. 
 E. 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 procuring, unless by the order of sale he was 
 specially allowed so to purchase. Chapin v. Weed, 1 Clarke, 464 ; [Bee- 
 son V. Beeson, 9 Penn. St. 279 ; Wallington's Est., 1 Ashm. 307.] 
 
 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, Ch. 623. [So of a mortgagee generally : Iddings v. 
 Bruen, 4 Sand. Ch. 223; Knight v. Majoribanks, 2 Macn. & Gord. 10; 
 Murdock's case, 2 Bland, 461 ; unless with a power of sale. Waters v. 
 Groom, 11 CI. & Fin. 684.] And where a hon&Jide 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. 364 ; [but see Irwin v. Harris, 6 Ired. Eq. 
 221.] 
 
 [A purchase by the trustee, when perfectly fair, made from the cestui 
 que trust, or with his assent, under a full knowledge of the circumstances, 
 or when subsequently confirmed by him directly or by long acquiescence, 
 with such knowledge, will not be set aside by a Court of equity. Pen- 
 nock's App., 14 Penn. St. 446 ; Bruch v. Lantz, 2 Eawle, 392 ; Har- 
 rington V. Brown, 5 Pick. 519; Dunlap v. Mitchell, 10 Ohio, 117; 
 Scott V Freeland, 7 Sm. & M. 410 ; Jenison v. Hapgood, 7 Pick. 1 ; 
 Musselman v. Eshleman, 10 Penn. St. 374 ; Hawley v. Cramer, 4 
 Cowen, 719; Todd v. Moore, 1 Leigh, 457; Villines v. Norfleet, 2 Dev. 
 
206 ADAMS'S DOCTRINE OF EQUITY. 
 
 tends even to remuneration for his services, and prevents 
 him from receiving anything beyond reimbursement of 
 his expenses, unless there be an express contrary stipu- 
 lation. So far as such reimbursement extends, he is 
 entitled to claim it in the fullest extent. All payments 
 made and liabilities incurred by him, and all his reason- 
 able costs, as between 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 solicitor, he 
 cannot of course charge the trust for his own profes- 
 sional services, so as to derive in that form a personal 
 benefit, (ic)^ 
 
 {x) Moore v. Frowd, 3 M. ^ C. 45 ; Bsiinbridge v. Blair, 8 Bea. 588. 
 [Though see Cradock v. Piper, 1 Macn. & Gord. 668.] 
 
 Ch. 167. It has been held, however, that a Court of equity will never 
 aid a trustee, under any circumstances, to enforce such a purchase, 
 though it might refuse to annul it. Monro v. Allaire, 2 Caines' Cas. 183. 
 This distinction is unquestionably a valid one in general ; yet it may be 
 doubted whether it is absolutely universal, in view of the tendency of the 
 modern authorities. See Hill on Trustees, 2d Am. Ed. 221, 785; Sal- 
 mon V. Cutts, 4 De G. & S. 131. J 
 
 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 Vess. 244; Lacy, Ex 
 parte, 6 Id. 626; Hendricks v. Kobinson, 2 Johns. C. R. 311. A sale 
 by a trustee to his cestui que trust, stands on the same footing as a pur- 
 chase 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 was adopted in some of the earlier cases 
 in this country : 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. 13 Conn. 
 384 ; though commissions might be agreed upon at the creation of the 
 trust. Boyd v. Hawkins, 2 Dev. Ch. 212. 
 
OEDINART AND CHARITABLE TRUSTS. 207 
 
 If a trustee fail in performance of his trusts, whether 
 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 re- 
 fuses to perform a particular duty, or threatens to do an 
 unauthorized act, he may be compelled to act in the one 
 case, or restrained in the other ; (2/) or, if necessary, he 
 may be removed altogether from the trust, and another 
 appointed in his room.(z)' 
 
 (1/) 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. & P. 355 ; Att.-Gen. v. Gains College, 
 
 2 Keen, 150. 
 
 But now, however, in most of the United States, trustees are allowed 
 compensation, either by express statutes or by analogy to compensation 
 allowed to executors. Upon the subject of compensation to trustees, see 
 Meacham v. Sternes, 9 Paige C. R. 398 ; Ringgold v. Ringgold, 1 Har. 
 & Gill. 11 ; Boyd v. Hawkins, 2 Dev. Ch. 329 ; Miller v. Beverleys, 4 
 Hen. & M. 415 ; Jenkins v. Eldredge, 3 Story Rep. 325 ; Matter of 
 De Peyster, 4 Sandf Ch. 511 ; Burr v. McEwen, 1 Bald. 163 ; Nathans 
 V. Morris, 4 Wh. 389 ; Stehman's Appeal, 5 Penn. St. 413. [The cases 
 and statutes on this subject, will be found fully collected in the American 
 note to Robinson v. Pett, 2 Lead. Cas. Eq. 200. 
 
 Whether the trustee, however, can claim compensation or not, he is 
 entitled to be fully reimbursed for all expenses incurred and responsi- 
 bilities assumed in the management of the trust. Towle v. Mack, 2 
 Verm. 19; Green v. Winter, 1 John. Ch. 27; Burr v. McEwen, 1 
 Bald. 154 ; Pennell's App. 2 Penn. St. 216 ; Morton v. Adams, 1 
 Strobh. Eq. 76 ; Hatton v. Weems, 12 G. & John. 83 ; Morton v. 
 Barret, 22 Maine, 257. And this is the case, even though the trust 
 may have been afterwards declared void, provided he acted in good faith. 
 Hawley v. James, 16 Wend. 61; Stewart v. McMinn, 5 Watts & Serg. 
 100.] 
 
 ' See note to page 38, ante. 
 
208 ADAMS'S DOCTRINE OF EQUITY. 
 
 If a breach of trust has been committed, the trustee 
 r*fi9n *'^^^^ ^® liable to make good any consequent loss, 
 whether immediately resulting from it, or trace- 
 able as its effect. And if several trustees have concurred 
 in its commission, each of them will, in favor of the 
 cestui que trust, be severally liable for the whole loss. 
 But if no actual fraud has been committed, a contribu- 
 tion 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 trustent 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 cestuis que trustent 
 must be indemnified out of their interest ; 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 trustent, 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 
 trustent, 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 considered 
 as waived. (5) But unless there be acquiescence in the 
 cestuis que trustent, the mere lapse of time will not bar the 
 liability of an express trustee ; for his possession is 
 according to his title. It is otherwise with regard to 
 persons who, not being themselves express trustees, have 
 
 (a) Walker v. 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. 
 
 (b) Briee v. Stokes, 11 Ves. 319 ; Walker v. Symonds, 3 Sw. 1, 64, 
 67 ; Roberts v. Tunstall, 4 Hare, 257. [See Hill on Trustees, 2d Am. 
 ed, p. 236, et seq., where the American cases are collected.] 
 
ORDINAET AND CHARITABLE TRUSTS. 209 
 
 acquired property with notice of a trust, or have other- 
 wise 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 con- 
 stituted trustees by a decree. Their possession, there- 
 fore, in the meantime is ^adverse to the cestui i-^oon 
 que trust, and, if left undisturbed, will ultimately 
 exclude him.(c) 
 
 The extent of the remedy which equity affords, de- 
 pends 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, (c?)' 
 
 The giving of interest, however, is merely an imper- 
 fect 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 misapplication actually in- 
 vested in stock, and is improperly sold out by him, or if 
 the trust deed contains a direction so to invest it, the 
 amount of such stock will be the measure of the in- 
 demnity; 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, or which a timely investment 
 
 (c) Beckford v. Wade, 17 Ves. 99 ; Hovenden v. Annesley, 2 Sch. 
 & L. 633 ; Wedderburn v. Wedderburn, 2 K. 722 ; S. 0. 4 M. & 0. 
 41; 3 & 4 Win. 4, c. 27, s. 25. 
 
 (rf) Ludlow V. Greenhouse, 1 Bligh, N. S. 17, 57 ; Rooke v. Hart, 
 11 Ves. 58 ; Tebbs v. Carpenter, 1 Madd. 290. 
 
 ^ See notes to pages 56, 57, ante. 
 14 
 
210 ADAMS'S DOCTRINE OF EQUITY. 
 
 would have produced. The effect 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 trus- 
 tee, appears to be doubtful, (e) If there is also an express 
 direction to accumulate, the replacement may be ex- 
 tended to the amount of accumulation which would 
 have been produced by a proper investment of the divi- 
 dends. (/) If an improper instrument has been made, 
 it is considered, as against the trustee himself, equiva- 
 r*pAi ^^^^ ^^ ^^^ investment. But in favor of the *cestui 
 que trust it gives an option to claim either the 
 investment made, or the replacement of the original fund 
 with interest, according as the one or the other may be 
 most for his benefit. (^) 
 
 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 unnecessarily sold out stock, kept 
 large balances in his hands, and resisted payment of 
 debts by a false pretence of outstanding demands. 
 Where the improper application has produced an ascer- 
 tainable profit, as, for example, where the trust money 
 has been applied either solely or as mixed up with other 
 
 (e) Byrcball v. Bradford, 6 Madd. 235 ; Watts v. Girdlestone, 6 Bea, 
 188 ; Ames. v. Parkinson, 7 Bea. 379 ; Shepherd v. Mods, 4 Hare, 
 500. [It is now held that the trustee is liable in such ease only for 
 principal and interest, and not for the value of the stock. See Hill on 
 Trustees, 2d Am. ed. 526, in note.j 
 
 (/) Pride v. Fooks, 2 Bea. 480. 
 
 (</) Lane v. Dighton, Amb. 409 ; Infra, Conversion. 
 
ORDINARY AND CHARITABLE TRUSTS. 211 
 
 pi-operty 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.(/i)^ 
 
 In some cases, where there has been an express direc- 
 tion to accumulate, accompanied by special circum- 
 stances 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 misconduct. 
 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 necessary for other 
 purposes, *as for administering the estate or con- 
 struing the trusts, he may have his general costs, ^ J 
 as between solicitor and cliejit, notwithstanding that it 
 includes a prayer for remedying the effect of his mis- 
 conduct. But he may, at the same time, be compelled 
 to pay any additional costs, which that misconduct 
 occasions.^ 
 
 The jurisdiction for compelling admittance to copy- 
 holds seems analogous to that for compelling perform- 
 
 (K) Tebbs v. Carpenter, 1 Mad. 290 ; Crackelt v. Bethune, IJ. & 
 W. 586 : Docker v. Somes, 2 M. & K. 655. 
 
 (0 Raphael v. Boehra, 11 Ves. 92 ; 13 Ves. 407, 590 ; Walker v. 
 Woodward, 1 Russ. 107; Tebbs v. Carpenter, 1 Mad. 290; Heigh- 
 ington V. Grant, 5 M. & C. 258. 
 
 * [On the subject of the liability of a trustee to interest, the eases 
 will be found collected in Hill on Trustees, 2d Am. Ed. 350, in note.] 
 ' [See Hill on Trustees, p. 813, et seq., 2d Am. Ed.] 
 
212 ADAMS'S DOCTRINE OF EQUITY. 
 
 ance of a trust. For the copyholder has the beneficial 
 interest in the land, and the lord is bound to perfect his 
 title by admittance, and to place the evidence of it on 
 the manor rolls. But the lord cannot 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 proclamation made. It is said, 
 too, that if there be error in any adversary proceeding 
 in the lord's Court, the Court of Chancery will 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 correct the proceedings, if anything be done against 
 conscience, {h) 
 
 Besides the ordinary trusts which we have just con- 
 sidered, there is another class of trusts, those for chari- 
 table 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 
 
 (le) Christian v. Corren, 1 P. Wms. 329 ; Clayton v. Cookes, 2 Atk. 
 449; Ash V. Eogle, 1 Vern. 367; Williams v. Lord Lonsdale, 3 Ves. 
 752 ; Widdowson v. Lord Harrington, IJ. & W. 532. 
 
 ' Upon the subject of charitable trusts, bequests for pious and chari- 
 table uses, and also the doctrine of Cy pres, see the following authori- 
 ties: Baptist Association v. Hart's Executors, 4 Wheaton, 1; Inglis v. 
 The Trustees of the Sailor's Snug Harbor, 3 Peters, 99; Trustees of the 
 Baptist Association v. Smith, 3 Peters, Appendix, 481 ; Executors of 
 Burr V. Smith et al. 7 Verm. Rep. 241 ; Gallego's Ex'rs v. Attorney- 
 General, and Id. v. Lambert and wife, 3 Leigh, 450 ; Shotwell's Exe- 
 cutor V. Mott et al. 2 Sandf Ch. Rep. 46; Vidal et al. v. Girard Ex'rs, 
 2 How. U. S. Rep. 127. Mr. Justice Baldwin, in the celebrated case 
 of Magill V. Brown, which involved the construction of the will of Sarah 
 Zane (reported in Brightly's Pa. Nisi Prius Reports, p. 347, &c.), gave 
 to the subject of bequests for pious and charitable uses, a most profound 
 
ORDINARY AND CHARITABLE TRUSTS. 213 
 
 The meaning of the word chanty, as applied to a trust, 
 is different from any signification which it ordinarily 
 bears. 
 
 The word in its widest sense denotes all the good affec- 
 tions which men ought to bear towards each other ; in 
 its most restricted and most usual sense, relief of the 
 
 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. [In some of the 
 United States, where the Statute of 43 Elizabeth is not in force, it has 
 been held that the same liberal principles as to charitable trusts, were 
 applied in the Court of Chancery at common law, independently of that 
 statute ; and that charities within its definition or analogies would be 
 enforced, though the beneficiaries are too vaguely designated, to claim 
 for themselves that assistance. All that is necessary is that a discretion 
 in the application of the funds shall have been vested somewhere, by the 
 donor. Vidal v. Girard, 2 How. S. C. 127 ; Brown v. Kelsey, 2 Cush. 
 243; Burr v. Smith, 7 Verm. 241; King v. Woodhull, 3 Edw. Ch. 79; 
 Banks V. Phelan, 4 Barb. S. C. 80; Shotwell v. Mott, 2 Sandf Ch. 46; 
 Newcomb v. St. Peter's Church, Id. 636 ; Williams v. Williams, 4 Sel- 
 den, 525 ; Witman v. Lex, 17 S. & R. 88 ; Zane's Will, Brightly, 
 350 ; McCord v. Ochiltree, 8 Blackf 15 ; State v. McGowen, 2 Ired. 
 Ch. 9 ; Griffin v. Graham, 1 Hawks, 96 ; Att.-Gen. v. Jolly, 1 Rich. 
 Eq. 99 ; Beall v. Vox, i Geo. 404 ; Wade v. American Col. Sec. 7 S. & 
 M. 663; Dickson v. Montgomery, 1 Swan (Tenn.) 348; Carter v. Balfour, 
 19 AJab. 814 ; Urraey's Ex'rs. v. Woodon, 1 Ohio St. N. S. 160 ; 
 White V. Fisk, 22 Conn. 31. In other States, the statute has been 
 declared to be still in force. Griffin v. Graham, 1 Hawks, 96; Gass 
 v.Wilhite, 2 Dana, 170; Att.-Gen. v. Wallace, 7 B. Monr. 611. 
 
 In Virginia and Maryland, however, if has been decided that neither 
 the statute nor the principles which it embodies, are in force. Baptist 
 Association v. Hart, 4 Wheat. 1; Wheeler v. Smith, 9 How. U. S. 58; 
 Gallego V. Att.-Gen. 3 Leigh, 451 ; Dashiell v. Att.-Gen. 5 Harr. & 
 J. 392; 6 Id. 1 ; Wilderman v. Baltimore, 8 Maryl. 551. 
 
 In the recent ease of Fontain v. Ravenal, 17 How. U. S. 369, it was 
 held by a majority of the Court, that the Courts of the United States 
 had no independent power to administer the law of charitable uses, whether 
 under the Statute of Elizabeth, or otherwise, except so far as it had been 
 adopted into the lex rei skce.] 
 
214 ADAMS S DOCTEINE OF EQUITY. 
 
 poor. In neither of these senses is it employed by the 
 Court of Chancery, but a signification has been affixed 
 to it, derived *for the most part from the enume- 
 L -I ration given in the Statute of Charitable Uses. (?) 
 And the purposes enumerated in that act, together with 
 others analogous to them, are accordingly considered as 
 the only charities which the Court will recognize. 
 
 The purposes enumerated in the statute as charitable 
 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.; educa- 
 tion and preferment of orphans ; the relief and mainte- 
 nance 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 only uses which the statute in term 
 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 reli- 
 gious or educational purposes ; for the erection of a hos- 
 pital 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 con- 
 stitute 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 
 
 (I) 43 Eliz. c. 4. 
 
OEDINARY AND CHARITABLE TRUSTS. 215 
 
 interfered in favor 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 quett'on 
 under such a trust is, whether the objects are suflBciently 
 specified to enable *the Court to execute it, or p^„„-, 
 whether the gift is void on the ground of uncer- ^ J 
 tainty.(m) 
 
 In order to create a public or charitable trust it is not 
 necessary that the property on which the trust 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 Municipal Corporation Act,{n) 
 directing the corporation property to be applied, first, for 
 certain specified purposes, and afterwards, for other gene- 
 ral purposes for the benefit of the town, a trust has at- 
 tached on the property, giving jurisdiction in equity to 
 control any improper dealing by the corporation, (o) 
 
 It should be observed, that trusts for charitable pur- 
 poses, equally with those for individual benefit, must be 
 of a character not prohibited by the policy of the law. 
 
 (m) Morice v. Bishop of Durham, 9 Vcs. 399, 405 ; 10 Ves. 522, 
 541; Mitford v. Keynolds, 1 Ph. 185; Nash v. Blorley, 5 Bca. 177; 
 Kendall v. Granger, 5 Bea. 300 ; Townsend v. Carus, 3 Hare, 257 ; 
 Nightingale V. Goulburn, 5 Hare, 484; 1 Jarm. on Wills, 192. 
 
 (7i) 5 & 6 Wm. 4, c. 76, s. 92. 
 
 (o) Att.-Gen. V. Mayor of Dublin, 1 Bligh. N. S. 312 ; Att.-Gen. v. 
 Compton, 1 N. C. C. 417; Att.-Gen. v. Aspinwall, 2 M. & C. 618; 
 Att.-Gen. V. Corporation of Poole, 2 K. 190 ; 4 M. & C. 17; 8 CI. & 
 P. 409; Att.-Gen. v. Shrewsbury, 6 Bea. 220. 
 
216 • ADAMS'S DOCTRINE OF EQUITT. 
 
 A trust therefore to promote religion must not be di- 
 rected to what the law calls a superstitious 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 bene- 
 fit of the prayers, the gift will be simply void. If it ap- 
 pears that charity was the object contemplated, e. g., that 
 it was intended to benefit the priest or to support his cha- 
 pel, the illegality of the particular method will not ex- 
 clude some other application, but the fund will be at the 
 disposal of the Crown, to be applied *under the 
 L J sign manual for some lawful object, (p) In re- 
 spect also to gifts for 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 savoring 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 invalid, and the estate 
 must be reconveyed.(5')^ 
 
 The incidents of a trust for charitabler purposes are for 
 the most part the same with those of an ordinary trust. 
 The ptincipal points of distinction are, first, that a chari- 
 table trust is not affected by lapse of time in the same 
 
 (j>) West V. Shuttleworth, 2 M. & K. 684 ; Infra, Oi/ pros Appli- 
 cation. 
 
 ((?) 9 Geo. 3, c. 136; 1 Jami. on Wills, 198. 
 
 1 [It has been held that there are no uses which can be denominated 
 superstitious in the United States. Methodist Church v. Remington, 
 1 Watts, 218 ; Gass v. Wilhite, 2 Dana, 170.] 
 
 ^ [The statutes of Mortmain are not generally in force in the United 
 States. 2 Kent's Com. 282 j Vidal v. Girard, 2 How. U. S. 187.] 
 
ORDINARY AND CHARITABLE TRUSTS. 217 
 
 manner as a trust for private persons ;' and secondly, 
 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 cy pres or approximate applica- 
 tion, 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 prin- 
 ciple does not apply. In the case of charities, both 
 branches of this rule are subject to modification. With 
 respect to the first branch, it has been determined, that 
 if the trustees of a charity have bond 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 
 disallowed ; (r) and further, that, although the mere 
 
 length of an erroneous usaG;e *cann6t alter the ^ 
 
 . . . r*691 
 
 origmal trust, yet where trusts have been im- '- -■ 
 
 posed on colleges or other existing corporations, who are 
 
 (»•) Att.-Gen. V. Pretyman, 4 Bea. 462 ; Att.-Gen. v. Draper's Com- 
 pany, 6 Bea. 382 ; Att.-Gen. v. Mayor of Exeter, Jao. 443 ; 2 Russ. 362. 
 
 ^ [No neglect or perversion of the funds of a chanty, by the trustees, 
 will be permitted to affect it. Hadley v. Hopkins Acad. 14 Pick. 240 ; 
 Griffitts V. Cope, 17 Penn. St. 96; Wright v. Linn, 9 Id. 433 ; Att. 
 Gen. V. Wallace, 7 B. Monr. 611 ; Price v. Methodist Church, 4 Hamm. 
 512. Nor will the cestuis que trust be affected by the declarations of the 
 trustees. McKissick v. Pickle, 16 Penn. St. 148. But a general limi- 
 tation over from one charity to another, contingent on the neglect of the 
 trustees of the former, at any time, for a fixed period, to carry on the 
 charity properly, is valid, and does not create a perpetuity. Christ's 
 Hospital V. Grainger, 7 Macn. & Gord. 460.] 
 
218 Adams's doctrine of equitt. 
 
 under no obligation to accept them, traditional usage 
 may be allowed an eflfect which in ordinary cases it 
 might not possess. And it has been accordingly held 
 that, if there are questions on the original instrument 
 of foundation, and an arrangement be fairly made at the 
 time of acceptance, and evidenced by cotemporaneous in- 
 struments or by consta,nt subsequent usage, the Court will 
 not disturb it, although in its own view of the original 
 instrument, such arrangement was in effect a modifica- 
 tion of that which might now be considered the best con- 
 struction. (5) 
 
 In these instances the lapse of time is allowed to ope- 
 rate against 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 to protect a pur- 
 chaser with notice of a charitable trust, either by ana- 
 logy to the Statute of Limitations, or as a presumptive 
 bar by acquiescence. The precise effect of the statute 
 does not appear to have been determined. Its enact- 
 ments are in terms imperative, and it contains no ex- 
 ception in favor 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 con- 
 tinue. (;') 
 
 The second and most singular peculiarity is, that where 
 
 (s) Attorney-G-eneral v. Caius College, 2 K. 150 j Attorney-General 
 V. Drapers' Company, 6 Bea. 382. 
 
 (<) 3 & 4 Wm. 4, c. 27, ss. 24, 25 ; Incorporated Society v. Richards, 
 1 Conn. & L. 68; Att.-Gen. v. Flint, 4 Hare, 147; Commissioners of 
 Donations v. Wybrants, 2 Jones and Latouche, 182. [See Att.-Gen, 
 V. Wilkins, 17 Bea. 285 ; but contm in the House of Lords, Magdalen 
 College V. Atty.-Gen., 26 L. J. Ch. 620.] 
 
ORDINARY AND CHARITABLE TRUSTS. 219 
 
 an apparent charitable intention has failed, whether by 
 an incomplete disposition at the outset, or bj subsequent 
 inadequacy of the original object, effect will be given it 
 by a cy pres or approximate application, notwithstanding 
 that in ordinary cases the trust would be void for uncer- 
 tainty, or would result to the donor or his representative.'^ 
 
 *The soundness of the distinction thus drawn 
 
 r*701 
 is perhaps open to doubt ; but its existence is ^ -' 
 
 established by many precedents ; and it appears to rest, 
 partly on the favor due to charity, and partly on the 
 hypothesis that the details of a charitable gift are not, 
 like those of a gift to individuals, the primary object 
 of the donor, but that the true intention ' is, first to 
 effectuate a charity, and secondly, to do so in the parti- 
 cular way which the trust denotes. Of course this doc- 
 trine, whether well or ill founded, cannot apply to an 
 ordinary trust : for there the donor's object is to benefit 
 the persons 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 in- 
 tention be manifested of appropriating the entire fund, 
 
 ' [The cy pres doctrines of the English Chancery have not been gene- 
 rally adopted in the United States, in their application to charitable 
 trusts. Carter v. Balfour, 19 Alab. 814; White v. Fisk, 22 Conn. 31 ; 
 MoAuIey v. Wilson, 1 Dev. Eq. 276 ; Witnian v. Lex, 17 Serg. & 
 Rawle, 88 ; Atty.-Gen. v. Jolly, 2 Strob. Eq. 379 ; Dickson v. Mont- 
 gomery, 1 Swan, 348. It was however recognized in Baker v. Smith, 
 13 Metcalf, 41; Burr's Exrs. v. Smith, 7 Verm. 287 (semble); Ur- 
 mey's Exr. v. Wooden, 1 Ohio N. S. 160 ; See Atty.-Gen. v. Wallace, 
 7 B. Monr. 611 ; Brown v. Concord, 33 N. H. 285. By a recent Act 
 of Assembly in Pennsylvania, the cy pres doctrine has been introduced 
 into the law of that State to a certain extent. Bright's Supp. 1855, 
 1118.] 
 
220 Adams's doctrine of equity. 
 
 it will be effectuated, to the exclusion of a resulting 
 trust, notwithstanding that the gift actually made is of 
 a portion only. And such intention may be evidenced, 
 either by words declaring 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 ex- 
 hausting 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 
 payments 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 favor 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 payments, and subject to 
 forfeiture on non-performance ; or thirdly, if the donor 
 would be liable to make good the payments, notwith- 
 standing a subsequent *deficiency of the fund. 
 '- -J In like manner, if it is apparent that the charity 
 was to have only a limited interest, but that the imme- 
 diate donee was to have no benefit, the surplus or the 
 subsequent increase will revert to the donor or his 
 heir, (m) 
 
 (u) Thetford School case, 8 Kep.lSO; Att.-Gen. 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.-Gen. v. Smythies, 2 R. & M. 
 717; Att.-Gen. v. Wilson, 3 M. & K. 362; Att.-Gen. v. Drapers' Com- 
 pany, 2 Bea. 508 ; Att.-Gen. v. Coopers' Company, 3 Bea. 29 ; Att.- 
 Gen. V. Grocers' Company, 6 Bea. 526; Jack v. Burnett, 12 01. & 
 F. 812. 
 
ORDINARY AND CHARITABLE TRUSTS. 221 
 
 2. If ill 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 applying the 
 entire fund, the presumed general object will be effec- 
 tuated by an application cy pres ; 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 specified was 
 merely illustrative, is one of a very doubtful character. 
 Lord Eldon repeatedly expressed his disapprobation of 
 it, but considered it firmly established by precedent, and 
 for that reason refused to overthrow it.(w) It is, how- 
 ever, a mere presumption 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 dis- 
 position. (?«) 
 
 The manner in which the cy pres application is effect- 
 ed, 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 example, in one in- 
 stance, where a legacy was given to University College 
 to purchase advowsons, and it was found that they al- 
 ready held as many advowsons *as the law would p^„„-, 
 permit; and in another, where a devise was made ^ -^ 
 to Trinity Hall, Cambridge, for the purpose of founding 
 
 (y) Moggridge v. Thackwell, 7 Ves. 36 ; Mills v. Parmer, 19 Ves. 
 483. 
 
 (w) Corbyn v. French, 4 Ves. 418 ; De Themmines v. De Boneval, 
 5 Russ. 288; Att.-Gen. v. Whitchurch, 3 Ves. 141 ; Cherry v. Mott, 
 1 M. & C. 123. 
 
222 ADAMS'S DOCTRINE OF EQUITY. 
 
 fellowships for the scholars of a particular school, and 
 the college alleged that fellowships of this class were 
 contrary 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 ac- 
 cordingly the fund Avas 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 exhibitioners; or if any other college 
 would receive them as fellows, (cc) 
 
 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 appren- 
 ticing the sons of poor Presbyterians, resident in the 
 testator's parish ; a surplus 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 residence 
 in the parish, was in the particular instance the pri- 
 mary object, and decreed in favor of the first scheme, (y) 
 
 In some instances the object specified is so peculiar, 
 that it is difficult to find anything substantially analo- 
 gous. In this case, if other charities are mentioned in 
 the will, they may afford a clue for the guidance of the 
 
 (x) Att.-Gen. V. Green, 2 B. C. C. 492 ; Att.-Gen. v. Andrews, 3 
 Ves. 633. 
 
 (2/) Att.-Gen. v. Wansay, 15 Ves. 231. 
 
ORDINART AND CHARITABLE TRUSTS. 223 
 
 Court. The application, however, must be a cij pres one 
 to the object which has failed, and not a mere transfer 
 to the other charities. The *principle on which p^_o, 
 such charities can be available as a guide, appears '- -' 
 to be that of ascertaining how much of the original ob- 
 ject it is possible to adopt, and then filling up the defi- 
 ciencies from the other objects. An instance of this 
 kind occurred under a bequest of property on three 
 trusts ; viz., 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' Company. 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 effisctuated, and that the 
 mode of effectuating it might be borrowed from the 
 second trust ; and the fund was accordingly applied for 
 the maintenance of Church of England Schools through- 
 out 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 
 similarities 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 cy pres 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 
 
 (2) Att.-Gen. v. Ironmongers' Company, 2 M. & K. 576 ; 2 Beav. 
 313 ; Cr. & P. 208 ; 10 CI. & F. 908. 
 
224 ADAMS'S DOCTRINE OF EQUITY. 
 
 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-General 
 *suing on behalf of the Crown, or, if the nature 
 L -'of the trust is such that its non-performance has 
 inflicted personal injury on an individual, 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 required for controlling the man- 
 agement of the property, 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 effectuating 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 incorporation, but are 
 under the management of private persons, or of some 
 independent corporation, in whom, as trustees, their pro- 
 perty is vested. 
 
 In the case of eleemosynary corporations, i. e., corpo- 
 rations established by charter for the purposes of the 
 charity, and having endowments for that purpose, the 
 
 (a) Moggridge v. Thaokwell, 7 Ves. 36 ; Hayter v. Trego, 5 Euss. 
 113 ; De Themmines v. De Bonneval, 5 Buss. 292; Att.-Gen. v. Todd, 
 1 K. 803 ; Keeve v. Att.-Gen. 3 Hare, 191. 
 
 (6) Att.-Gen. v. Pargeter, 6 Bea. 150 ; Att.-Gen. v. Foord, 6 Bea. 
 289; Att.-Gen. v. Corporation of Newark, 1 Hare, 395. 
 
ORDINARY AND CHARITABLE TRUSTS. 225 
 
 jurisdiction of equity is confined to the management of 
 the estate, and does not extend to the election or amo- 
 tion of corporators, or to the internal administration of 
 the charity. The proper jurisdiction for these purposes 
 is that of the visitor, which is incidental to all eleemosy- 
 nary corporations, and, if not expressly or impliedly con- 
 ferred 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 
 through the Lord Chancellor on petition to him. If the 
 visitor refuses to hear and decide a dispute, he may be 
 compelled to do so by *mandamus ; but his deci- r^^c-i 
 sion cannot be controlled. If, however, the visi- 
 tors are also in receipt of the revenue, so that they are 
 in fact trustees, subject to no independent control, the 
 jurisdiction 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 revenues.(c) 
 
 In addition to the jurisdiction of equity in matters of 
 charity, a special jurisdiction was created by the statute 
 43 Eliz, c. 4, called the Statute of Charitable Uses, for 
 remedying abuses of charitable gifts. And it is thereby 
 enacted that commissioners may be appointed by the 
 Crown for the regulation of charities, whose decision 
 shall be subject to review by the Lord Chancellor, with 
 
 (c) Ex parte Wrangham, 2 Ves. Jun. 609; Re Queen's Coll. Jac. 1 ; 
 3 Staph. Bl. 183 ; Ex parte Inge, 2 R. & M. 591 ; Rex v. Arclibishop 
 of Canterbury, 15 Ea-st, 117; Att.-Gen. v. Foundling Hospital, 2 Ves. 
 Jun. 42 ; Att.-Gen. v. Dixie, 13 Ves. 519 ; Ex parte Kirby Ravens- 
 worth Hospital, 15 Ves. 305; Att.-Gen. v. Earl of Clarendon, 17 Ves. 
 491 ; Ex parte Berkhamstead 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. 135. 
 
 15 
 
226 ADAMS S DOCTRINE OF EQUITY. 
 
 a further appeal to the House of Lords. The statute, 
 however, does not exclude the right to proceed in Chan- 
 cery ; and the proceeding under it has fallen into dis- 
 use, [dy 
 
 There is also a statutory jurisdiction in the Court of 
 Chancery itself for remedying abuses by a summary 
 process, instead of the more regular course by informa- 
 tion 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 *ex- 
 L J tensive character, but it is confined by the deci- 
 sions 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 iJvith 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 
 application of the fund is sought, the proper course is 
 by an information, (e) 
 
 In the particular case of Grammar Schools, an addi- 
 
 (d) Att.-Gen. V. Mayor of Dublin, 1 Bl. N. S. 312, 347; Incorpo- 
 rated Society v. Richards, 1 Conn. & L. 58. 
 
 (e) 52 Grco. 3, c. 101 ; Corporation of Ludlow v. Greenhouse, 1 Bl. 
 N. S. 17 ; Re Clark's Charity, 8 Sim. 34 ; Re Phillipott's Charity, 8 
 Sim. 381 ; Re West Retford, 10 Sim. 101 ; Re Parke's Charity, 12 
 Sim. 329. 
 
 ^ [See ante, note to page 65.] 
 
ORDINARY AND CHARITABLE TRUSTS. 227 
 
 tional 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 Romilly's Act, for extend- 
 ing the system of education to other branches of learning 
 besides Greek and Latin ; for extending or restricting 
 the right of admission ; and for establishing schemes for 
 the application of the revenue, having due regard to the 
 intentions 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 appoint 
 the mode of removing masters. 
 
 A summary jurisdiction is also conferred by statute 
 for superintending and controlling the oflBcers of Friendly 
 Societies ; (/) for apportioning charitable bequests be- 
 tween new parishes and districts formed under the 
 Church Building Acts and the remaining parts of the 
 old parishes, and making a like apportionment of debts 
 or charges contracted or charged on the credit of church 
 rates ;(§') and for administering property which was 
 formerly vested in the municipal corporations on chari- 
 table trusts. (A) 
 
 (/) 10 Geo. 4, c. 56, ss. 14, 15, 16. 
 O) 8 & 9 Vict. c. 70, s. 22. 
 (/t) 5 & 6 Wm. 4, c. 76, s. 71. 
 
228 Adams's doctrine of equity. 
 
 [*77] ^CHAPTER II. 
 
 OF SPECIFIC PERFOKMANCB — ELECTION — MERITORIOUS OR IM- 
 PERFECT CONSIDERATION — DISCHARGE BY MATTER IN PAIS 05 
 CONTRACTS UNDER SEAL — RELIEF AGAINST PENALTIES. 
 
 The jurisdiction for compelling performance of a con- 
 tract involves the consideration not merely of what is 
 technically termed specific performance, but also of the 
 doctrines of election, of meritorious or imperfect conside- 
 ration, of the discharge by matter in pais of contracts 
 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 juris- 
 diction of equity over mortgages will be afterwards sepa- 
 rately considered. 
 
 The equity to compel Specific Performance of a con- 
 tract arises where a contract, binding at law, has been 
 infringed, and the remedy at law by damages is inade- 
 quate.' And in order to originate this equity, it is essen- 
 
 ' 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 Then 
 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; Meeker v. Meeker, 16 Conn. 403; 
 Seymour v. Delancy, 3 Cow. 445 ; 6 John. C. R. 222 ; King v. Morford, 
 Saxton, 274 ; Antony v. Leftwich, 3 Rand. 238 ; Prater v. Miller, 3 
 Hawks, 629 ; Turner v. Clay, 8 Bibb, 52 ; Frisby v. Ballance, 4 Scam. 
 
OF SPECIFIC PERFORMANCE. 229 
 
 tial that the contract shall have been made for valuable 
 consideration, and that its enforcement in specie be prac- 
 ticable and necessary. The validity of the contract at 
 law is not material to be here considered. And our at- 
 tention will therefore be directed to those requisites alone 
 
 287; MoMurtrie v. Bennett, Harring. Ch. 124 ; Dougherty v. Humpston, 
 2 Blackf. 273 j St. John v. Benedict, 6 John. C. E,. Ill; Henderson v. 
 Hays, 2 Watts, 148 ; Perkins v. Wright, 3 Har. & McHen. 324 ; Leigh 
 V. Crump, 1 Ired. Ch. 299 ; Gould v. Womack, 2 Ala. 83 ; Tobey v. 
 County of Bristol, 3 Story's Kep. 800 ; Dalzell v. Crawford, 1 Parson's 
 Sel. Eq. Ca. 45 ; [Waters v. Howard, 8 Gill, 262 ; Tyson v. Watts, 1 
 Maryl. Ch. 13. The discretion, however, is not an arbitrary one, but is 
 to he exercised according to the circumstances of the cases. Bennett v. 
 Smith, 16 Jurist, 421. Neither is it the individual discretion of the 
 judge, but that judicial discretion which conforms itself to general rules 
 and settled principles. Ash v. Daggy, 6 Ind. 259 ; Powell v. Central 
 Plank Co. 24 Alab. 441 ; Stoutenberg v. Tompkins, 1 Stockt. 332. In 
 the exercise of this discretion, if the complainant has been guilty of 
 laches : Parish v. Koons, 1 Pars. Eq. 97 ; Ins. Co. v. Union Canal Co. 
 Bright. N. P. 48 ; or has failed to perform his own part of the contract : 
 Roy V. Willink, 4 Sandf. Ch. 525 ; Slaughter v. Harris, 1 Carter, 238 ; 
 specific performance will be refused.] 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 Preem. 
 Ch. 583. Chattels of special value (^pretium affeciionis) 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. Gilli- 
 land, 3 Desau. 541. See post, 83, note 2. A specific performance will 
 not be decreed, except where the legal remedy is inadequate, and some- 
 thing remains to be done besides the mere payment of money. Phyfe 
 V. Warden, 2 Ed. Ch. 51 ; Bowman v. Irons, 2 Bibb, 78. [And, in 
 general, in order to the enforcement of a contract in equity, its terms 
 must be explicit and certain. Dodd v. Seymour, 21 Conn. 476; Rock 
 well V. Lawrence, 2 Halstead Ch. 190 ; Aday v. Echols, 18 Alab. 353 
 Soles V. Hickman, 20 Penn. St. 180; Allen v. Burke, 2 Maryl. Ch. 534 
 Madeira v. Hopkins, 12 B. Monr. 595; Parrish v. Koons, 1 Pars. Eq 
 97 ; Robinson v. Kettletas, 4 Edw. Ch. 67 ; Price v. Griffith, 1 De G. 
 Macn. & Gord. 80.] 
 
230 ADAMS'S DOCTRINE OF EQUITY. 
 
 which, assuming the fact of its legal validity, are essen- 
 tial to the equity for specific enforcement. 
 
 *The first requisite is that there be a valuable 
 L -I consideration, either in the way of benefit be- 
 stowed, or of disadvantage sustained, by the party in 
 whose favor a contract is to be enforced, (a)' The neces- 
 sity for such consideration exists at law, where the agree- 
 ment is by simple contract only ; but if it be an agree- 
 ment under seal, technically called a contract by spe- 
 cialty, the solemnity of a deed is held at law to imply a 
 consideration. In equity, however, where a special re- 
 medy is sought in addition to the ordinary one of pecu- 
 niary recompense, a valuable consideration is always 
 requisite, and no additional force is given to the agree- 
 ment, because it is evidenced by an instrument under 
 seal. Jf there be no consideration, or if the only consi- 
 
 (a) 2 Steph. Bl. 113. 
 
 ^ To entitle a party in Chancery to the aid of the Court in obtaining 
 a specific performance, the instrument must be supported by a valuable 
 consideration, or at least by what a Court of equity considers a meritO' 
 rious consideration, as payment of debts, or making provision for a wife 
 and child. Minturn v. Seymour, 4 John. C. R. 500; Woodcock v. Ben 
 nett, 1 Cowen, 733 ; Cabeen v. Gordon, 1 Hill Ch. 51 ; [Shepherd v, 
 Shepherd, 2 Maryl. Ch. 144 ; Vasser v. Vasser, 23 Miss. 378; Cromp- 
 ton V. Vasser, 19 Alab. 259; Clarke v. Lott, 11 Illin. 105; Banks v, 
 May, 3 A. K. Marsh. 436. Natural love and affection has been held to 
 be a good consideration in equity, in Taylor v. James, 4 Desaus. 5 
 Mclntire v. Hughes, 4 Bibb, 186 ; Caldwell v. Williams, 1 Bailey Eq, 
 175 ; and see Hayes v. Kershow, 1 Sandf. Ch. 261. But in Pennsyl 
 vania, the opposite doctrine has been held. Kennedy v. Ware, 1 Penn 
 St. 445; Campbell's Est. 7 Id. 100. And this is unquestionably the 
 result of the English cases. As to assignments for the benefit of cre^ 
 ditors, see ante 31, and note ; Hill on Trustees, 111 (2d Am. Ed.), in 
 note ; Burrill on Assignments, 280, 306 ; notes to Thomas v. Jenks, 1 
 Am. Lead. Cas. 80 ; and see Hickman v. Grimes, 1 A. K. Marsh. 87.] 
 
OF SPECIFIC PERFORMANCE. 231 
 
 deration 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 to- 
 wards his wife and children. (J) If, on the other hand, 
 the contract be made before marriage, it will be sup- 
 ported, in consideration of the subsequent marriage, and 
 may be enforced on the application of any person claim- 
 ing within that consideration. It will not, however, be 
 enforced on the application of a party not within the con- 
 sideration, to whom a collateral interest has been volun- 
 tarily given, — although, if enforced at all, it will be en- 
 forced 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 consideration 
 on the other, will be presently considered. It is sufficient 
 here to remark, that where a decree for specific perform- 
 ance 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 con- 
 sideration be valuable, but it is not essential *that ^, „„^ 
 
 r 791 
 it be also adequate. The parties themselves are •- • -^ 
 
 the best judges of that ; and therefore mere inadequacy, 
 
 if not so gross as to prove fraud or imposition, will not 
 
 warrant the refusal of relief. (cZ)^ 
 
 (6) Jefferjs v. JeflFerys, Cr. & P. 141 ; [Moore v. Crofton, 3 Jones & 
 Lat. 442.] 
 
 (c) 3 Sug. V. &. P. 289 ; Davenport t. Bishopp, 2 N. C. C. 451 ; 
 1 Ph. 698. 
 
 (c^) 1 Sug. V. & P. 440; Borell v. Dann, 2 Hare, 440, 450; Bower 
 V. Cooper, 2 Hare, 408. 
 
 ' Mere inadequacy of price is not per se sufficient to set aside a trans- 
 action, yet where it is so great as to give to the contract the character 
 
232 ADAMS'S DOCTRINE OF EQUITY. 
 
 By parity of reasoning, if a benefit has been conferred 
 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 performance an- 
 nexed 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 confined in 
 equity, as well as at law, to promises which rest in fieri} 
 
 (e) Edwards v. Grand Junction Eailway, 1 M. & C. 650 ; Green 
 V. Green, 19 Ves. 665 ; 2 Meriv. 86 ; Gretton v. Haward, 1 Sw. 409, 
 427. 
 
 (/) 2 .Steph. Bl. 186. 
 
 of unreasonableness and hardship, the Court may be induced to stay the 
 exercise of its discretionary power, in enforcing the specific performance 
 of a contract for the sale of land, and leave the party to seek his com- 
 pensation in damages at law. Osgood et al. v. Franklin et al. 2 John. 
 C. R. 28, S. C. on appeal, 14 John. Rep. 527; [Howard t. Edgell, 17 
 Verm. 9 ; Shepherd v. Bevin, 9 Gill. 32 ; Erwin v. Parham, 12 How. 
 U. S. 197 ; Harrison v. Town, 17 Mo. 237 ; Powers v. Hale, 5 Fos- 
 ter, 145 ;] see also Seymour v. Delancy, 3 Cowen, 445, 6 John. Ch. 
 222 ; Garnett v. Macon, 2 Brook. 185 ; Rodman v. Zilley, Saxton, 320; 
 White V. Thompson, 1 Dev. & Bat. Ch. 493 ; Fripp v. Fripp, Eice, 
 Ch. 84; Bean v. Valle, 2 Mo. 126; [Davidson v. Little, 22 Penn. St. 
 245; Vick v. Troy & Boston R. R. 21 Barb. 381. If the inadequacy 
 be very gross and manifest, so as has been said to " shock the conscience, 
 the Court will infer fraud or imposition, and, it seems, give active relief. 
 Butler v. Haskell, 4 Desaus. 687 ; Wright v. Wilson, 2 Yerg. 294; Bar- 
 nett V. Spratt, 4 Ired. Eq. 171 ; Deaderick v. Watkins, 8 Humph. 520; 
 see, however, Erwin v. Parham, 12 How. U. S. 197.] 
 
 ^ Equity will aid in enforcing an agreement executed, though volun- 
 tary, aliter if it be executory. Read v. Long, 4 Yerg. 68 ; [Wyche v. 
 Green, 16 Geo. 49. But, in Boze v. Davis, 14 Texas, 331, it was held 
 
OF SPECIFIC PERFORMANCE. 233 
 
 If the promise has been already executed, whether at 
 law by transfer of a legal ownership, or in equity by the 
 creation of a final trust, the consideration on which it 
 was made is immaterial. 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 suffi- 
 ciently far to constitute himself a trustee for the claim- 
 ant. 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 trust, and the consideration is 
 immaterial. Such, for instance, is the case where an in- 
 strument of gift has been fully executed, ^although r*orv-| 
 retained in the donor's possession ; (g') where the 
 legal ownership of a right enforceable at law has been 
 completely vested in a trustee for the claimant ;(//) 
 where the legal estate is already in a trustee, and the 
 equitable ownership, retaining the old trustee, has been 
 completely assigned to the claimant, or a trustee for 
 
 {y) Coningham v. Plunkett, 2 N. C. C. 245 ; Hughes v. Stubbs, 
 1 Hare, 476 ; Exton v. Scott, 6 Sim. 31 ; Fletcher v. Fletcher, 4 
 Have, 67. 
 
 (Ji) Fletcher v. Fletcher, 4 Hare, 67. 
 
 that equity will not enforce a voltintary agreement to convey land, 
 although the grantee was put in possession and made improvements ; 
 but, if the bill is properly drawn, he may obtain compensation for the 
 labor he expended and the ilnprovements he made. Pinckard v. Pinok- 
 ard, 23 Alab. 649, acc.J 
 
234 ADAMS'S DOCTRINE OF EQUITY. 
 
 him ; (i) where a chose in action which is transferable 
 in equity alone, has been transferred by a complete 
 equitable assignment ; (A;) or where, by a formal decla- 
 ration of trust, which purports to be and is a complete 
 transaction, the donor has assumed the character of a 
 trustee. (Z) If, on the contrary, the transaction is in- 
 complete, and its final completion is asked in equity, 
 the Court will not interpose to perfect the author's lia- 
 bility, without first inquiring into the origin of the 
 claim, and the nature of the consideration given, (m)' 
 
 (i) CoIIinson v. Pattrick, 2 K. 123 ; Sloan v. Cadogan, 3 Sug. V. & 
 P. App. 66; Beatson v. Beatson, 12 Sim. 281. 
 
 (Jc) Ex parte Pye & Dubost, 18 Ves. 140 ; McFaddea v. Jenkyns, 1 
 Hare, 458 ; 1 Ph. 153 ; Fortescue v. Barnett, 3 M. & K. 36; Edwards 
 V. Jones, 1 M. & C. 226. 
 
 (0 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, 1 Hare, 464 ; 1 Ph. 342 ; Fletcher v. 
 Fletcher, 4 Hare, 67 ; Ward v. Audland, 8 Bea. 201. 
 
 * [By the recent case of Kekewich v. Manning, 1 De G. M. & Gord. 
 176, it is now established in England, contrary to several previous deci- 
 sions, that a voluntary assignment of an equitable or reversionary inte- 
 rest, or of a chose in action, will be enforced in equity, where .the 
 assignor has done all in his power to make the transaction complete. 
 The fact that the legal title cannot pass in such case, is held to be im- 
 material. S. P. Voyle V. Hughes, 18 Jur. 341 ; 2 Sm. & Gifford, 18. 
 But the rule still remains the same where the assignor has not done all 
 in his power, and which the nature of the property is capable of, as a 
 transfer of stock, where it is assigned. Beech v. Keep, 18 Jur. 971 ; 
 Bridge v. Bridge, 16 Beav. 315. 
 
 Where the holder of shares of stock, upon which no deposit or other 
 sums have been paid, agrees to transfer them to another, who agrees to 
 receive them, and to do all acts necessary to relieve the former from liability 
 in respect to them, the agreement is not void for want of consideration 
 or of mutuality, but a bill may be sustained against the latter to compel 
 bim to take the stock. Cheales v. Kenward, 27 L. J. Ch. 784 ; 4 Jur. 
 N. S. 984.J 
 
OF SPECIFIC PERFORMANCE. 235 
 
 The second requisite is, that the mutual enforcement 
 of the contract in sjjecie be practicable, i. e., that the 
 contract be one which the defendant can fulfil ; and the 
 fulfilment of which 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 autho- 
 rize the Court to decree an impossibility. Such, for ex- 
 ample, is the case, where the vendor of property has no 
 estate, or only a limited estate therein ; (n) where he 
 holds it as a *trustee without authority to sell ; (o) r*n i -i 
 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 misconduct 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, 
 
 (n) Maiden v. Fyson, 9 Bea. 347. 
 (o) Mortlock V. BuUer, 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 Kep. 800. And the specific performance of a con- 
 tract 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. [An agreement to devise lands 
 cannot be specifically enforced : Stafford v. Bartholomew, 2 Carter, 153; 
 see Mundorff V. Kilbourn, 4 Md. K. 463 ; though in Logan v. McGinnis, 
 12 Penn. St. 27, Mr. Justice Rogers was of opinion that equity ought 
 to decree a conveyance in such case] 
 
236 ADAMS'S DOCTRINE OF EQUITY. 
 
 after a contract has been made, the property which it 
 affects descends or is devised to per!?ons, who by 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 jurisdic- 
 tion of equity, but to delay its exercise until the requi- 
 site capacity is attained. The inconvenience, however, 
 has been remedied by a recent statute, and it is enacted 
 that in such cases, after a decree has been made for spe- 
 cific performance, the Court may direct a conveyance in 
 the same manner as in the case of an incapacitated trus- 
 tee, (g')^ 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 jurisdiction 
 
 (q) 1 Wm. 4, c. 60, ss. 16 and 17. 
 {>•) 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 ; Wilkinson v. Wilkinson, a 
 minor, 1 Desau. 201. Where specific performance 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; [McMorris v. Craw- 
 ford, 15 Alab. 271 ; Brewer v. Brewer, 19 Id. 481; Nesbit v. Moore, 
 9 B. Monr. 508 ; Tiernan v. Roland, 15 Penn. St. 429 ; Guard v. 
 Bradley, 7 Ind. 600 ; Hill v. Eessegieu, 17 Barb. (N. Y.) 162. A 
 Court of equity will not, upon a bill filed by a vendee, decree a specific 
 perforQiance by husband and wife, of a contract for sale of the wife's 
 lands. Clark v. Reins, 12 Gratt. (Va.) 98. But a contract entered 
 into between husband and wife, for a transfer of property from the former 
 to the latter, for a bona fide and valuable consideration, will be enforced. 
 Stockett V. Holliday, 9 Md. 480.] 
 
 ^ [In many of the United Slates, there are statutes expressly providing 
 for the specific performance of a decedent's contract.] 
 
OF SPECIFIC PERFORMANCE. 237 
 
 of equity is equally at an end. Such, for example, is 
 the case where a tradesmen has contracted to sell the 
 goodwill of a business, unconnected with any specific 
 property, or where an actor has engaged to perform at a 
 particular theatre ;^ for the Court is incompetent to tell 
 the actor what parts he shall perform, or how he shall 
 perform them ; or to tell the tradesman how he shall 
 induce his customers to employ his *assignee.(s) p.n„-, 
 Such again is a contract for entering into a part- ■- "'-' 
 nership, where no term is fixed for its duration, and 
 where the decree might therefore be nullified by an im- 
 mediate 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 exe- 
 cuted ; 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.(<) 
 
 If, when the cause comes on for hearing, the plain- 
 tiff's part of the agreement has not been performed, and 
 its fulfilment by him cannot be secured, there is a want 
 of mutuality between the parties.^ And such want of 
 
 (s) Coslake v. Till, 1 Russ. 376 ; Komble v. Kean, 6 Sim. 3.33 ; 
 Dietrichsen v. Cabburn, 2 Ph. 52 ; [Fitzpatriok v. Nowlan, 1 Iri.sh L. 
 &Eq. N. S. 671.J 
 
 (0 Hercy v. Birch, 9 Ves. 857 ; Nesbltt v. Meyer, 1 Sw. 223. 
 
 ' Hamblin y. Dinneford, 2 Edw. Ch. 529. [An injunction may be 
 granted, however, to restrain the breach of negative covenants in such 
 agreement. Post, 207, note.J 
 
 " The contract or agreement sought to be enforced, must be mutual, 
 and the tie reciprocal, or a Court of equity will not enforce a perform- 
 ance. McMurtrie V. Bennett, Harring. Ch. 124; Ilawley 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; [Tyson v. Watts, 1 Maryl. Ch. 13; Bronson v. Cahill, 4 
 
238 Adams's doctrine of equity. 
 
 mutuality, though it may not in all cases absolutely ex- 
 clude the jurisdiction, is a material ingredient in re- 
 straining its exercise. For example, where an agree- 
 ment had been made between the plaintiff and the de- 
 fendant, that the plaintiff should supply certain acids for 
 the defendant, and that the defendant should purchase 
 them from the plaintiff alone, the Court refused to re- 
 strain the 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 favor, it would be impos- 
 sible to compel him to execute that decree, (m) 
 
 The third requisite is, that an enforcement in specie be 
 necessary, i. e., it must be really important to the plain- 
 tiff, and not oppressive on the defendant. 
 
 *It must be really important to the plaintiff; 
 ■- J for the equitable remedy is not concurrent with 
 the legal one, but supplemental to it, and will not there- 
 fore be substituted for such legal remedy, unless a par- 
 ticular necessity be shown. In accordance with thia 
 
 (w) Hill V. CroUs, 2 Ph. 60 ; Fight v. Bolland, 4 Euss. 298; Bozon 
 V. Farlow, 1 Meriv. 469 ; Pickering v. Bishop of Ely, 2 N. C. C. 249; 
 Salisbury v. Hatcher, 2 N. C. C. 54 ; Dietrichsen v. Cabburn, 2 Ph. 
 52 ; Rolfe v. Rolfe, 15 Sim. 88. [Hargrave v. Hargrave, 12 Beav. 
 408.] 
 
 McLean, 19 ; Southern Life Ins. Co. v. Cole, 4 Florida, 359 ; Duvall t. • 
 Myers, 2 Md. Ch. 401; Stoutenbergh v. Tomkins, 1 Stock. 332; Hoen 
 V. Simmons, 1 Calif. 119. Thus, where by the terms of sale, title is to 
 be absolute, and purchase-money to be paid within a certain period, or 
 a re- sale, it seems specific performance will not be decreed in favor of 
 the vendor, on a bill filed after the expiration of that period. Bodine 
 V. Grlading, 21 Penn. St. 54 ; see, however, Koberts v. Denny, 3 De G. 
 M. & G. 284.] 
 
OF SPECIFIC PERFORMANCE. 239 
 
 principle, specific performance may be enforced of con- 
 tracts for the sale of land, of shares in a public com- 
 pany, (v) or of a life annuity ;(w) for refraining from spe- 
 cific injurious acts, and generally for any purpose, where 
 the specific thing or act contracted for, and not mere 
 pecuniary compensation, is the redress practically re- 
 quired, (a;)' On the other hand, it will not ordinarily 
 be decreed on a contract for the sale of stock or goods ; 
 because with a sum equal to the market price, the plain- 
 tiff may buy other stock or goods of the same descrip- 
 tion. (?/)^ On the same principle, a covenant to repair 
 
 (u) Duncuft V. Albrecht, 12 Sim. 189 ; Colombine v. Chichester, 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. 
 
 (y) Cud V. Rutter, 1 P. W. 570 ; Doloret v. Rothschild, 1 S. & S. 
 590; Adderly v. Dixon, 1 S. & S. 610. 
 
 ' [An agreement between a creditor and a third person, founded on a 
 valuable consideration, to compromise the claim of the former against 
 his debtor, will be specifically enforced by a Court of equity. Phillips 
 T. Berger, 8 Barb. Sup. Ct. 527. 
 
 Specific performance of an agreement for insurance may be decreed 
 even after a loss: Tayloe v. Merchants' Fire Ins. Co. 9 How. U. S, 390; 
 Carpenter v. Mutual Safety Ins. Co. 4 Sandf. Ch. 408 ; see Neville v. 
 Merchants' Ins. Co. 19 Ohio, 452 ; and the Court, having obtained 
 jurisdiction, may then go on and give the suitable relief. Tayloe v. Ins. 
 Co. ut. sup.] 
 
 " [Maulden V. Armistead, 18 Alabama, 500; and see ante, p. 77, note. 
 But it is otherwise, where the breach of such a contract cannot be cor- 
 rectly estimated in damages, or where, from the nature of the contract, 
 specific performance is indispensable to justice. Sullivan v. Tuck, 1 
 Maryl. Ch. 59 ; Waters v. Howard, Id. 112. So where personal pro- 
 perty is detained in breach of trust. McGowin v. Remington, 12 Penn. 
 St. 56 ; Pooley v. Budd, 14 Beav. 56 ; Cowles v. Whitman, 10 Conn. 
 121. A contract for the sale and delivery of slaves will be enforced. 
 Summers v. Bean, 13 Gratt. 404. Where some of the articles embraced 
 
240 Adams's doctrine of equity. 
 
 a house, or to put lands into a particular state of culti- 
 vation, 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 re- 
 pairing 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 compen- 
 sated by money, the jurisdiction 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 establish- 
 ment of this fact is not conclusive ; for however impor- 
 tant specific performance may be to the plaintiff, yet he 
 has at all events another remedy by damages at law; 
 
 (z) Errington v. Aynesly, 2 B. C. C. 342 ; Flint v. Brandon, 8 Ves. 
 164 ; Storer v. Great Western Kailway, 2 N. C. C. 48. [See Birchett 
 V. Boiling, 5 Munf. 442.] 
 
 in the same dispute are capable of compensation in damages, and some 
 are not, equity will enforce performance as to the whole. McGowin v. 
 Eemington, ut supr. It is not by itself a sufficient ground of demurrer, 
 that a bill seeks specific performance of a contract with regard to per- 
 sonal property. Carpenter v. Mutual Safety Ins. Co. 4 Sandf. Ch. 408; 
 see Cheales v. Kenward, 27 L. J. Ch. 784; stated ante, note to p. 80.] 
 ^ [But an agreement to build a house of a given value, and accord- 
 ing to a plan to be agreed upon, cannot be specifically enforced, wliea 
 neither plan nor specifications have been under the consideration of the 
 parties. Brace v. Wehnert, 27 L. J. Ch. 572; 4 Jur. N. S. 549. 
 Specific performance will be decreed of land, though it appear that it is 
 valuable only on account of the timber upon it ; equity acting in such 
 case merely on the ground of the subject being land. Kitchen v. Her- 
 ring, 7 Ired. Eq. 190. In the recent case of Clayton v. Illingsworth, 
 10 Hare, 451, however, specific performance of an agreement for a mere 
 tenancy from year to year, was refused, because the breach was suscep- 
 tible of compensation by damages.] 
 
OP SPECIFIC PERFOEMANCE. 241 
 
 and it is therefore open to the defendant to contend that 
 a wrong *would be inflicted on him by going be- 
 yond the ordinary remedy, greater than would L J 
 be inflicted on the plaintiff by refusing to interpose, (a) 
 Specific performance will accordingly be refused, if there 
 has been misrepresentation by the plaintiff on a material 
 point, although it may not be sufficient to invalidate the 
 contract; (5) if he has induced the defendant to execute 
 a written agreement, on the faith of his verbal promise 
 that it shall be subsequently altered ;(c) or if after making 
 a contract in writing, he has put an end to it by parol 
 waiver, although it is doubtful whether such a waiver 
 would be good at law in respect of a contract affected 
 by the Statute of Frauds. (cZ)^ 
 
 (a) Wedgwood v. Adams, 6 Bea. 600; [Webb. v. Direc. London & 
 Portsmouth E. R. Co. 1 De G. M. & Gord. 52 ; Bowles v. Woodson, 6 
 Gratt. (Va.) 78.] 
 
 (6) Cadman v. Horner, 18 Ves. 10; Clermont v. Tasburgh, 1 J. & 
 W. 112; Brealey v. Collins, You. 317; 1 Sug. V. & P. 338; Nelthorpe 
 7. Holgate, 1 Coll. 203. 
 
 (c) Clarke v. Grant, 14 Ves. 519 ; Omerod v. Hardman, 5 Ves. 722 ; 
 Attorney-General v. Jackson, 5 Hare, 366. 
 
 (c?) Goss V. Lord Nugent, 5 B. & Ad. 58 ; Robinson v. Page, 3 Russ. 
 114, 119 ; 1 Sug. V. & P. ciii, 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. Hamil- 
 ton, 4 Pet. 311 ; Western Railroad Corporation v. Babcock, 6 Met. 346 ; 
 Perkins v. Wright, 3 Har. & McHen. 324 ; Leigh v. Crump, 1 Ired. 
 Ch. 299; Hall v. Ross, 3 Hey. 200; Rice v. Rawlings, Meigs, 496; 
 Eastland v. Vanarsdel, 3 Bibb, 274; Wingart v. Fry, Wright, 105; 
 Edwards v. Handley, Hardin, 602 ; Cannaday v. Shepard, 2 Jones Eq. 
 224 ; Bowen v. Waters, 2 Paine, C. C. 1. And when one of the parties 
 to a contract has been guilty of unfair conduct, in relation to the con- 
 tract of which he seeks the specific performance, his bill will be dis- 
 missed, and he will be left to his legal remedy. Thompson v. Tod, Pet. 
 
 16 
 
24:2 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 investiga- 
 tion shows a reasonably clear and marketable title, spe- 
 cific performance will be compelled. But if there be a 
 rational doubt on its validity, the Court, though it may 
 be of opinion that the title is good, will not compel the 
 
 (e) Jenkins v. Hiles, 6 Ves. 646, 653. 
 
 C. C. 380; Frisby v. Ballance, 4 Scam. 287; [Berry v. Cox, 8 Gill, 
 466.] So where the contract is unreasonable. McWhorter v. McMahan, 
 1 Clarke, 400. And where it is entered into for the purpose of defraud- 
 ing 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. 
 But a mere increase of the value of the land subsequent to the eontract, 
 will not be a ground for refusing specific performance. Young v. Wright, 
 4 Wise. 144. The intoxication of a purchaser at the time of sale, will 
 not be ground for refusing to enforce specific performance of the contract 
 against him, unless it appear that his intoxication was produced or pro- 
 cured by the vendor, or that undue advantage was taken of it. Maxwell 
 V. Pittenger, 2 Green Ch. 156; Rodman v. Zilley, Saxton,320; White- 
 sides V. Greenlee, 2 Dev. Ch. 152 ; [Shaw v. Thackray, 17 Jurist, 
 1045 ; Morrison v. McLeod, 2 Dev. & Batt. Eq. 221 ; Harbison v. Le- 
 mon, 3 Blaokf 51 ; Belcher v. Belcher, 10 Yerg. 121 ; Crane v. Conk- 
 lin, Saxt. Ch. 346; Calloway v. Witherspoon, 5 Ired. Eq. 128;] contra, 
 Prentice v. Achorn, 2 Paige, 30. 
 
 ' [Where the Court is satisfied on the hearing that there can be no 
 fuller investigation of the title, and that all the facts are before the Court, 
 and is satisfied that objections exist to the title, which from their nature 
 cannot be removed, it will not direct a reference to a master. Domiaick 
 V. Michael, 4 Sandf. S. C. 374.] 
 
OF SPECIFIC PERFORMANCE. 243 
 
 purchaser's acceptance, but will leave the parties to 
 law.(/)' 
 
 (/) Stapylton v. Scott, 16 Ves. 272 ; Jervoise v. Duke of Northum- 
 berland, IJ. & W. 539, 549. 
 
 ' Butler V. O'Hear, 1 Desau. 382 ; Longworth v. Taylor, 1 McLean, 
 895 ; Watts v. Waddle, 6 Pet. 389 ; Bates v. Delavan, 5 Paige C. E.. 
 299 ; Winne v. Keynolds, 6 Paige C. R. 407 ; Dutch Church v. Mott, 
 7 Paige C. R. 77; Gans v. Renshaw, 2 Barr, 34; Fitzpatrick v. Pea- 
 therstone, 3 Ala. 40 ; Beckwith v. Kouns, 6 B. Monr. 222 ; Hepburn 
 V. Auld, 5 Cranch, 262, 275 ; [Owings v. Baldwin, 8 Gill, 337 ; Thomp- 
 son V. Dulles, 5 Rich. Eq. 370 ; St. Mary's Church v. Stockton, 4 Halst. 
 Ch. (N. J.) 520 ; Laurens v. Lucas, 6 Rich. Eq. 217 ; Chambers v. 
 Tulane, 1 Stockt. (N. J.) 146. The cases in which Courts of equity have 
 refused their aid to the vendor, where they have considered his title good, 
 though disputable, are cases of real and serious diflBculty. Omissions in 
 the judicial process through which the title passed, which omissions 
 could be supplied by amendment, by the Court in which the proceedings 
 were had, will not be considered as sufficient. Dalzell v. Crawford, 1 
 Pars. Eq. 57. 
 
 If in the progress of a suit for specific performance of a real contract, 
 objections to a title are discovered, never made during the negotiations, 
 the defendant cannot insist on such objections as excusing him from 
 performance, if the plaintiff is able and willing to remove them when 
 first pointed out. Dalzell v. Crawford, ut. sup. In the same case it 
 was laid down as the doctrine of the Court, that adverse opinions of 
 conveyancers and counsel alone, are not sufficient ground to refuse a 
 decree for specific performance of a contract for the purchase of land. 
 Id. 37. 
 
 Perhaps the law was stated in Dalzell v. Crawford, rather more broadly 
 than in some other cases, and than was necessary for a decision on the 
 facts. It is certainly clear that a purchaser ought not to be forced into 
 a possible litigation, merely because the opinion of the Court, which 
 binds no one but himself, happens to be in favor of the title. In a recent 
 case in England, Pyrke v. Waddingham, 10 Hare, 1, a stricter rule was 
 acted on. The following propositions were deduced from a careful exa- 
 mination of the authorities. A doubtful title, which a purchaser will 
 not be compelled to accept, is not only a title upon which the Court 
 entertains doubt, but includes also a title which, although the Court has 
 
244 ADAMS S DOCTRINE OF EQUITY. 
 
 Specific performance may be refused where the de- 
 fendant has by mistake, not originating in mere care- 
 
 a favorable opinion of it, yet may reasonably and fairly be questioned, 
 in the opinion of other competent persons ; for the Court has no means 
 of binding the question as against adverse claimants, or of indemnifying 
 the purchaser, if its own opinion in favor of the title, should turn out 
 not to be well founded. If the doubts, as to a title, arise upon a ques- 
 tion connected with the general law, the Court is to judge whether the 
 general law on the point is, or is not settled ; and if it be not, or if the 
 doubts as to the title may be affected by extrinsic circumstances, which 
 neither the purchaser nor the Court can satisfactorily investigate, specific 
 performance will be refused. 
 
 The rules thus stated rest upon the fundamental principle, that every 
 purchaser is entitled to require a marketable title. It is further the 
 duty of the Court on questions of title depending on the possibility of 
 future rights arising, to consider the course which should be taken if 
 the rights had actually arisen, and were in course of litigation. Pyrke 
 V. Waddingham, 10 Hare, 1. See Sohier v. Williams, 1 Curtis, C. C. 
 479. 
 
 Though equity will not compel a vendee to take a bad title, yet a 
 pecuniary charge against a good title presents no objection, provided 
 the purchaser can be protected against it. Tiernan v. Eoland, 15 Penn. 
 St. 441. And the pendency of a suit for the land, which is found on 
 investigation to be groundless, is no reason for refusing specific perform- 
 ance. Owings V. Baldwin, 8 Gill, 337.] 
 
 A Court of equity will decree a specific performance of a contract 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 ; Hepburn v. Auld, ubi supra ; Graham 
 V. Hackwith, 1 Marsh. 423 ; Tyree v. Williams, 3 Bibb. 366; Seymour 
 V. Delancy, 3 Cowen, 445 ; [Moss v. Hanson, 17 Penn. St. 379 ; Tier- 
 nan V. Eoland, 15 Id. 429.] And wbere a vendor of land cannot make 
 a valid title to the whole land sold, the vendee may insist upon the 
 specific performance by the vendor, so far as such vendor can execute 
 it. Jacobs V. Locke, 2 Ired. Ch. 286 ; Henry v. Liles, Id. 407 ; [Ket- 
 chum V. Stout, 20 Ohio, 453.] 
 
 [When the performance of a contract of purchase is resisted upon 
 grounds wholly independent of the validity of the title, and the objec- 
 tions of the purchaser are overruled ; or when the purchaser, although 
 doubtful of the title, consents by his answer to accept it, if in the judg- 
 
OF SPECIFIC PERFORMANCE. 245 
 
 lessness, *entered into a contract framed diflferent- r^or-^ 
 ]j from his own intention ; notwithstanding 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 interfere. (A)' 
 
 (g) Clowes v. Higginson, 1 Ves. & B. 524, commented on in 1 Sug. 
 v. & P. 228 ; Townshend v. Stangroom, 6 Ves. 328 ; Malins v. Free- 
 man, 2 K. 25 ; Kennedy v. Lee, 3 Meriv. 441. 
 
 (h) Wedgwood v. Adams, 6 Bea. 600 ; Talbot v. Ford, 13 Sim. 173 ; 
 Pickering v. Ely, 2 N. C. C. 249, 266. 
 
 ment of the Court it can be rendered valid, it is sufiGicient to warrant a 
 decree for a specific performance that a good title can be made within a 
 reasonable time, before the final decree. But when it appears that the 
 purchaser rejected the title offered, as insufficient, and upon that ground 
 refused and still refuses to complete the contract, the entire controversy 
 turns upon the validity of the objections, and if they are sufficient, the 
 Court will not decree a specific performance. Dominick v. Michael, 4 
 Sandf S. C. 374.] 
 
 ' James v. State Bank, 17 Alab. 69 ; King v. Hamilton, 4 Pet. 311; 
 Bradbury v. White, 4 Greenl. 391 ; Yancy v. Green, 6 Dana, 444 ; 
 Orear v. Tanner, 1 Bibb, 237; Frisby v. Ballance, 4 Scam. 287; Western 
 Railroad Company v. Babcock, 6 Met. Rep. 346 ; Morss v. Elmendorf, 
 11 Paige, 277; Coles & others, Ex'rs, v. Bowne, 10 Paige, 526; 
 Schmidt v. Livingston, 3 Edw. Ch. Eep. 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 — Qumre, 
 whether a Court of equity should interfere. MoFerran 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. [It has 
 been held in several cases in the United States, that a bill will lie to 
 correct an agreement as to lands, for mistake, upon parol evidence, and for 
 specific performance of the agreement as corrected ; or, on the other 
 
246 ADAMS'S DOCTRINE OF EQUITY. 
 
 In applying the equity of specific performance to real 
 estate, there are some modifications of legal rules, which 
 at first sight appear inconsistent with them, and repug- 
 nant 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 compen- 
 sation for defects. The wisdom of permitting any devi- 
 ation is a subject admitting of much doubt. But the 
 particular doctrines now in question are firmly esta- 
 
 hand, that the defendant in a bill for specific performance, may by his 
 answer set up mistake, and entitle himself to specific performance of the 
 reformed agreement, against the claim of the complainant to have his 
 bill dismissed, notwithstanding the Statute of Frauds. Wall v. Arring- 
 ton, 13 Geo. 88 ; Mosby v. Wall, 1 Cushm. Miss. 81 ; Philpott v. Elliott, 4 
 Maryl. Ch. 273 ; Moale v. Buchanan, II Gill & John. 325; Tilton v. 
 Tilton, 9 N. H. 385 ; Bellows v. Stone, 14 Id. 175 ; Bradford v. Union 
 Bank, 13 How. U. S. 57 ; Gillespie v. Moon, 2 John. Ch. 585; Keissel- 
 brock V. Livingston, 4 John. Ch. 144. And this doctrine is strongly 
 approved by Judge Story, Eq. Jur. § 160, &c. But in other American 
 cases, as Elder v. Elder, 10 Maine, 80 ; Osborn v. Phelps, 19 Conn. 63 ; 
 Westbrook v. Harbeson, 2 BIcCord Ch. 112 ; Brooks v. Wheelock, 11 
 Pick. 439; see Miller v. Chetwood, I Green. Ch. 199; Dennis v. 
 Dennis, 4 Eich. Eq. 307; Best v. Stow, 2 Sandf Ch. 298; and in 
 England, Woollam v. Hearn, 7 Ves. Jr. 211 ; Nurse v. Lord Seymour, 
 13 Beav. 254, it is held that though in such cases mistake is good 
 ground for refusing specific performance, that being within the discretion 
 of a chancellor, it cannot furnish a reason for active relief by the execu- 
 tion of the agreement, in the face of the Statute of Frauds. For, it is 
 obvious that if any part of the agreement remain in parol, the whole 
 must be so, to all intents and purposes. This view is supported also by 
 Judge Hare, in the able note to Woollam v. Hearn, 2 Lead. Cases Eq. 
 Part i, 571, 1st Am. ed. Where, however, the agreement is executed by 
 part performance, it is agreed on all hands, that in this, as in other 
 cases, the question is no longer governed by the statute. Ibid.] 
 
OF SPECIFIC PERFORMANCE. 247 
 
 blished by the course of precedent, and may perhaps be 
 considered, not so much deviations from the rule of law, 
 as subordinate equities, or developments from the origi- 
 nal doctrine, that specific performance of a contract, and 
 not pecuniary compensation for its breach, is the equit- 
 able measure of redress. 
 
 The first of these subordinate equities is that of enforc- 
 ing 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 *authorized.(J) If the require- r*oc-| 
 ments 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 some- 
 times, however, happens that a contract which is still in 
 fi^ri, at law, has been already performed by construction 
 of equity ; for if it is one of which specific performance 
 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 agree- 
 ment in equity ; and, if the terms of their parol contract 
 can be proved, may be decreed to perfect it by a convey- 
 ance at law. 
 
 The doctrine on this point is called the doctrine of 
 part performance,' and its principle appears to be that, 
 
 (0 29 Car. 2, c. 3, s. 4. 
 ' In nearly every State in the Union, the rule is settled, that part per- 
 
248 ADAMS'S DOCTRINE OF EQUITY. 
 
 if one of the contracting parties induce the other so to 
 act, that, if the contract be abandoned, he cannot be 
 
 formance 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. Mer- 
 ritt, 13 Conn. 478 ; Pugh v. Good, 3 Watts & Serg. 56 ; Harris v. Knick- 
 erbacker, 5 Wend. 638; Parkhurst 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 ; [Gough v. Crane, 3 Md. Ch. 119 ; Johnson v. Mo- 
 Gruder, 15 Miss. 365 ; Stoddart v. Tuck, 5 Md. 18 ; Dougan v. Blocher, 
 24 Penn. St. 28; McCue v. Johnston, 25 Penn. St. 306 ; Printup v. Mitr 
 chell, 17 Geo. 558 ; Ofifenhouse v. Burleson, 11 Texas, 87 ; Parke v. See- 
 wright, 20 Miss. 85 ; Despain v. Carter, 21 Miss. 331. Though it must 
 be clearly and unequivocally proved : Charnley v. Hansbury, 13 Penn. 
 St. 16 ; Owings v. Baldwin, 8 Gill, 337 ; and must be' shown distinctly 
 to be referable exclusively to the contract set up in the bill. Duval] v. 
 Myers, 2 Maryl. Ch. 401.J 
 
 But in some of the States, as in Tennessee, North Carolina, Massa. 
 chusetts, and Maine, the general rule is different. See Patton v. Mo- 
 Clure, 1 Mart. & Yerg. 333 ; Kidley v. McNairy et al. 2 Humph. 174 
 Stearns v. Hubbard, 8 Greenl. 320 ; Wilton v. Harwood, 23 Maine, 131 
 Robeson v. Hornbaker, 2 Green. Ch. 60; Brooks v. Wheelock, llPiok 
 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. 864 
 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 ; Jackson v. Cutright, 5 
 Munf. 308 ; Hatcher v. Hatcher, 1 McMullan's Ch. 311 ; Smith v. 
 Smith, 1 Kich, Ch. 130; Anderson v. Chick, 1 Bailey Ch. 118; Hood 
 V. Bowman, 1 Freom. Ch. 290 ; Bean v. Valle, 2 Miss. 126 ; Johnston 
 V. Glaney, 4 Blackf 94 ; Sites v. Keller, 6 Ham. 483 ; contra, Town- 
 send V. Houston, 1 Harring. 532 ; McMurtrie v. Bennett, Harring. Ch. 
 124. [But where a party who has paid the purchase-money upon a 
 parol contract, cannot be replaced in the same position by a recovery of 
 the money paid, he will be entitled to specific performance. . Malins v. 
 Brown, 4 Comst. 403.] 
 
 And where the purchaser has taken possession, paid the purchase- 
 money, and made improvements thereon, equity will enforce a specific 
 performance. Casler v. Thompson, 3 Green Ch. 59 ; Wetmore v. White, 
 
OF SPECiriC PERFORMANCE. 249 
 
 restored to his former position, the contract must be 
 considered as perfected in equity, and a refusal to com- 
 plete 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 
 
 2Cai. Ca. 87; Ellis v. Ellis, 1 Dev. Ch. 180 (contra, S. C. 341); 
 Smith V. Smith, 1 Eich. Ch. 130 ; Massey v. Mcllwain, 2 Hill Ch. 
 421; Cox V. Cox, Peck, 443 ; see also Johnston v. Clancy, 4 Blaekf. 
 94; Tibbs v. Barker, 1 Blaekf. 58; Moreland v. Lemasters, 4 Blaekf. 
 383 ; [Brewer v. Brewer, 19 Alab. 481 ; School Dist. No. 3 v. Mac- 
 Loon, 4 Wise. 79.] 
 
 So it is a sufficient part performance to take the case out of the Sta- 
 tute 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. Underdunck, 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. 
 Cook, 3 Porter, 464 ; Waggoner v. Speck, 3 Ham. 292 ; [Palmer v. 
 Eichardson," 3 Strobh. Eq. 16.] 
 
 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 : Wack v. Sorber, 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 Mc- 
 Blullan Ch. 311 ; Johnston v. Glancy, 4 Blaekf 94 ; [Christy v. Barn- 
 hart, 14 Penn. St. 260. The part performance must be such as would 
 make the party asking the specific relief a wrongdoer in case the specific 
 performance were not decreed. And delivery of possession must have 
 been in pursuance and part execution of the agreement charged in the 
 bill. Ham v. Goodrich, 33 N. H. 32. 
 
 The rule has recently been stated to be in Pennsylvania, that every 
 parol contract is within the Statute of Frauds, except where there has 
 been such part performance as cannot he compensated in damages. 
 "Without possession taken and maintained under the contract, there 
 can be no pretence of part performance ; but generally," say the Court, 
 "that is an act which admits of compensation, and therefore too much 
 IS made of it when it is treated as sufficient ground for decreeing specific 
 performance." Moore v. Small, 19 Penn. St. 461.] 
 
250 ADAMS'S DOCTRINE OF EQUITY. 
 
 to the possession, is admitted thereto ; for if the agree- 
 ment 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 
 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 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 completion. (^)' 
 
 The same principle- which establishes a parol con- 
 tract where the title under it is sustained by part per- 
 formance, is also applicable where the purchaser of real 
 estate has waived by his conduct any objection of title.^ 
 
 {k) Mitf. 266 ; 1 Sug. V. & P. c. iii, s. 7 ; Wills v. Stradling, 3 Ves. 
 378 ; Cooth v. Jackson, 6 Ves. 12 ; Clinan v. Cooke, 1 Soh. & L. 22, 41 ; 
 Sutherland v. Briggs, 1 Hare, 26 ; Dale v. Hamilton, 5 Hare, 369, 381 ; 
 Mundy V. Joliffe, 5 BI. & C. 167. 
 
 ' [A written agreement will be specifically enforced in equity, accord- 
 ing to its terms, although verbally another provision had been agreed to 
 at the same time, though not inserted in the agreement, if the person who 
 is to perform the omitted term, consents to its performance. Martin v. 
 Pycroft, 2 De G-. Maen. & G. 785.] 
 
 ^ And there is a settled distinction between the case of a vendor, 
 coming into a Court of equity, to compel a vendee to performance, and 
 
OF SPECIFIC PERFORMANCE. 251 
 
 The general rule is, that a contract for the purchase of 
 realty implies 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 posses- 
 sion 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, how- 
 ever, must be intentional ; and his conduct is merely 
 evidence from which the intention may be presumed. 
 If, therefore, there be a subsequent 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 
 
 (0 Goss V. Lord Nugent, 5 B. & Ad. 58. 
 
 (to) Knatchbull v. Grueber, 1 Mad. 153, 170 ; Burroughs v. Oakley, 3 
 Sw. 159 ; Calcraft v. Koebuck, 1 Ves. J. 221 ; Osborne v. Harvey, 1 N. 
 C. C. 116 ; 2 Sug. V. & P. c. viii, s. 1. 
 
 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 pj'o 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. Eep. 450. [See S. E. 
 Railway v. Knoll, 10 Hare, 122.] 
 ^ [Palmer V. Richardson, 3 Strob. Eq. 16.] 
 
252 Adams's doctrine of equitt. 
 
 accept it, unless he has expressly contracted to take 
 such title as th# vendor has. (n) 
 
 The second equity is that of allowing time to make 
 out *a title, beyond the day which the contract 
 L -I specifies. It is an obvious principle, both of law 
 and of equity, that no one can have a contract enforced 
 in his favor, unless he has performed, or is ready to per- 
 form, 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 conclusion 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 de- 
 creed ; and the Court may rectify the incidental delay 
 by giving the intermediate rents to the purchaser, 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 contract 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 specifled for comple- 
 tion, will not,pei- se render it essential. But the parties 
 may contract on what terms they will, and may declare, 
 
 (n) Warren v. Richardson, You. 1 ; Blaohford v. Kirkpatriek, 6 Bea. 
 232 ; Duke v. Barnett, 2 Coll, 337. 
 
 ' [Eemington v. Irwin, 14 Penn. St. 143 ; Bryson v. Peak, 8 Ired. 
 Eq. 310; Glover v. Fisher, 11 111. 666; Tiernan v. Roland, 15 Penn. 
 St. 429 ; Parkin v. Thorold, 16 Jur. 959 ; Pegg v. Wisden, 16 Beav. 
 246 ; Roberts v. Denny, 3 De G. M. & G. 284.] 
 
OF SPECIFIC PERFORMANCE. 253 
 
 if they think fit, that it shall be so considered. The 
 same conclusion may be drawn by implication from the 
 nature of the property to which the contract refers ; as, 
 for instance, if it be property in reversion, or if it be re- 
 quired 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. 
 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 con- 
 sidered as acquiescing in such notice, and as abandoning 
 his equity for specific performance, (o)^ 
 
 (o) Walker v. Jeffreys, 1 Hare, 341, 348 ; King v. Wilson, 6 Bea. 
 124 ; 1 Sug. V. & P. c. V. 
 
 ' 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. Garnett v. Macon, 2 Brock. 185 ; S. 
 C. 6 Call. 308. [Garretson v. Vanloon, 3 Iowa, 128 ; Edwards v. At- 
 kinson, 14 Texas, 873.; Keller v. Fisher, 7 Ind. 718 ; Potter v. Tuttle, 
 22 Conn. 513; Morgan v. Scott, 26 Penn. St. 55.] And where by lapse 
 of time the value of the property is greatly diminished, performance will 
 not be compelled. McKay v. Carrington, 1 McLean, 50. So where 
 the vendee has purchased to sell, time is of the essence of the contract. 
 Id. See, also, Benedict v. Lynch, 1 John C. R. 370; Jackson v. 
 Ligon, 3 Leigh, 161. But see Brashier v. Gratz, 6 Wheaton, 528 ; 
 Bank of Columbia v. Hagner, 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 contract 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. [Time may be always made material by 
 either party if he choose. Either may demand performance on the 
 stipulated day, and if the other do not then comply, may elect to rescind, 
 which rescission will free him from the obligations of the contract in law 
 and equity. Dominick v. Michael, 4 Sandf. S. C. 374. A reasonable 
 time must, however, be given on a demand for performance. Parkin v. 
 
254 Adams's doctrine of equity. 
 
 *In the absence of any special matter, a wide 
 L -^ liberty as to time is given to the vendor. 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. (^) 
 And in some cases where a person, being owner of a 
 portion only of the estate, or having but a limited interest 
 therein, has bond fide contracted for a sale of the whole, 
 he has been allowed time to obtain a title to the rest, or 
 to extend his interest into a fee. (5') 
 
 It has been sometimes attempted to extend the max- 
 im, 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 dis- 
 
 (p) Townsend v. Champernowne, 3 Y. & C. 5^5; Scoones v. Morrell, 
 1 Bea. 251. 
 
 (q) Esdaile v. Stephenson, 2 Sug. V. & P. 30 ; Chamberlain v. Lee, 
 10 Sim. 444; Salisbury v. Hatcher, 2 N. C. C. 54. 
 
 Thorold, 16 Jurist, 959. Time also becomes material, in connection 
 with an important change in value, or circumstances. Southern Life 
 Ins. &c. Co. V. Cole, 4 Florida, 359. Or where there are not mutual 
 remedies. Westerman v. Means, 12 Penn. St. 97. So, an alteration in 
 the situation of the parties will be taken into consideration. Waters v. 
 Howard, 8 Gill, 262. So, time is material on an agreement for the 
 leasing of a house, on surety for the rent being procured before a day 
 fixed. Mitchell v. Wilson, 4 Edw. Ch. 697. So, also, where by the 
 original agreement a re-sale may be made if the vendor does not comply 
 within a fixed period. Bodine v. Glading, 21 Penn. St. 50. But if time 
 is to be considered of the essence of a contract, the point must be made 
 promptly. Monro v. Taylor, 8 Hare, 62 ; Price v. Griffith, 1 De G. 
 Macn. & Gord. 80.] 
 
OF SPECIFIC PERFORMANCE. 255 
 
 abled the lessee from applying at the stated time, it 
 seems that he may have relief in equity. But unless 
 there be some special circumstances of excuse, a specific 
 performance will not be decreed; for the contract is, that 
 the question of renewal or non-renewal shall be deter- 
 mined at the time appointed, and if the lessee were re- 
 lievable, notwithstanding the delay, the effect would be 
 to bind the lessor, and to leave himself unbound, (r) 
 
 The third equitj^ 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 per- 
 formed in toio, whether by reason of an unexpected fail- 
 ure 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 provide against these con- 
 tingencies by a ^condition that misdescriptions 
 and errors shall not vitiate the sale, but that a L -■ 
 compensation shall be given for the difference in value. 
 But, unless there be such a condition, the contract can- 
 not 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, therefore, 
 cannot at law recover part of the purchase-money, if 
 unable to convey the entire property, nor can the pur- 
 chaser insist on paying a part only in respect of a par- 
 tial failure in the sale.(5) In equity, on the other hand, 
 there is no difficulty in making the requisite investiga- 
 tion ; and therefore, on a bill for specific performance, 
 inquiry will be made whether the property can be either 
 
 (r) Bayley v. Corporation of Leominster, 3 B. 0. C. 529 ; City of 
 London v. Mitford, 14 Ves. 41 ; Harries v. Bryant, 4 Buss. 89. 
 (s) Johnson v. Johnson, 3 Bos. & P. 162. 
 
256 ADAMS'S DOCTKINE OF EQUITY. 
 
 literally or substantially transferred. If a substantial 
 transfer can be made, it has been considered against 
 conscience to take advantage of small circumstances of 
 variation.' 
 
 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 defect is 
 
 ' 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 deficiency. 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 suc- 
 ceeded, 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. Bardeau, 6 
 John. C. R. 38; Wiswall v. McGowan, 1 Hoff. C. R. 125; Harbersv. 
 Gadsden, 6 Rich. Eq. 284. Damages may in some cases also be decreed. 
 Wiswall V. McGowan, ubi supra; Slaughter v. Tindle, 1 Lit. 358; Fisher 
 V. Kay, 2 Bibb, 434. And the rule of compensation on a bill for a spe- 
 cific performance, where a conveyance cannot be enforced, is the value 
 of the land at the time the contract should have been performed. Dus- 
 tin V. Newcomer, 8 Ham. 49. [See on this subject, note to Seton v. 
 Slade, 2 Lead. Cas. Eq. p. ii, 33. Compensation in money, however, is 
 not always proper ; thus, on a bill of specific performance of an agree- 
 ment for a partition of coal mines, owned in common by complainant 
 and defendant, and for an account of coal already taken out, it was held, 
 that the most equitable mode of partition was, that coal should be as- 
 signed to the complainant, in order to make up his full share, regard 
 being had to quantity and quality, and to accessibility and convenience 
 in mining, with reference to all the parties interested, instead of decree- 
 ing the value in money of the coal taken out and sold. Young v. Frost, 
 1 Maryl. Rep. 377.] 
 
 In Pennsylvania, it is competent for a jury, on principles of equity, 
 to find conditional damages, to be released on specific performance of a 
 contract. Decamp v. Feay, 5 S. & R. 322 ; Hauberger v. Root, 5 Penn. 
 
OF SPECIFIC PERFORMANCE. 257 
 
 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, compellable 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 contracted for, where the other part is 
 a large portion of the entire subject-matter, or is in its 
 nature material to the enjoyment of the rest.(<) 
 
 In favor of the purchaser the equity is of wider ap- 
 plication, and the rule is that, although he cannot have 
 a partial interest forced upon him, yet if he entered into 
 the contract *in ignorance of the vendor's inca- 
 pacity to give him the whole, and chooses after- L J 
 wards 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, (m)' 
 
 (i) Stewart v. Alliston, 1 Meriv. 26 ; Knatchbull v. Grueber, 1 
 Mad. 153 ; 1 Sug. V. & P. c. vii. [Tiernan v. Koland, 15 PenD. St. 
 429.] 
 
 (m) Thomas v. Bering, 1 K. 729 ; Wheatley v. Slade, 4 Sim. 126 ; 
 Graham v. Oliver, 3 Bea. 124; Nelthorpe v. Holgate, 1 Coll. 203. 
 
 St. 112. The usual mode of enforcing specific performance, in that 
 State, is by ejectment, with conditional verdict where necessary. Whart. 
 Dig. Ejectm. ix. 
 
 ' [Where a purchaser of land, who, on faith of a parol contract, has 
 entered into possession and has made valuable improvements, but in bill 
 filed, fails to make out such a case as would entitle him to relief, the bill 
 may be retained for the purpose of allowing him compensation, if he 
 have not a full and adequate remedy at law. Aday v. Echols, 18 Alab. 
 353 ; Eockwell v. Lawrence, 2 Halst. Ch. 190. In such case the land 
 should be charged as against the vendor and his representatives, for the 
 amount of compensation found to be due, unless there be some circum- 
 stances which would make this improper. The insolvency of the vendor's' 
 estate, he being dead, is not a sufficient reason for refusing so to charge 
 
 17 
 
258 AD-AMS'S DOCTRINE OF EQUITY. 
 
 In both cases alike, whether the claim be made by 
 the vendor or the purchaser, the defect must be one ad- 
 mitting of compensation, and not a mere matter of arbi- 
 trary damages, (v) And the compensation given must 
 be really compensation for a present loss, and not indem- 
 nity against a future risk. For the offer to give such 
 indemnity is in truth merely an offer of a defective title, 
 with pecuniary compensation in the event of its failure. 
 In some cases where an estate has been liable to a con- 
 tingent 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, (w) 
 
 A corresponding relief to that by specific performance 
 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 directing them to be de- 
 livered up or secured.' 
 
 (v) White V. Cuddon, 8 CI. & F. 766, 792 ; Lord Brook v. Eounth- 
 waite, 5 Hare, 298. 
 
 (w) Fildes v. Hooker, 3 Mad. 19.3 ; Aylett v. Ashton, 1 M. & C. 105, 
 114; 2 Sug. V. & P. c. X, s. 2. 
 
 it. Aday v. Echols, ut supra. On the death of a vendor, and bill for 
 specific performance by vendee, the dower right of the widow is to be 
 compensated for, not by the deduction of a gross sum on its estimated 
 value, but one-third of the purchase-money is to be retained till the 
 death of the dowress, without interest, secured by a lien on the land. 
 Springle V. Shields, 17 Alab. 295;] 
 
 ' [See Tiernan v. Koland, 15 Penn. St. 441.J 
 
 » [See McGowin v. Remington, 12 Penn. St. 56 ; Pooley v. Budd, 
 14 Beav. 34.] 
 
OF ELECTION. 259 
 
 The remedies at law for such unlawful detainer are 
 by an action of trespass for the unlawful taking, by tro- 
 ver, for the unlawful conversion to the defendant'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 chat- 
 tel, if it can be found, or for the value, if it has been de- 
 stroyed or eloigned. The remedy, however, though in 
 terms specific, *is inferior to that by suit in equity ; ^ ..„„-, 
 for there is no power to prevent destruction or L -^ 
 defacement whilst the suit is pending. The defects thus 
 existing in the remedy at law originate a jurisdiction 
 in the Court of Chancery, and suits have accordingly 
 been entertained for recovery of an ancient silver altar, 
 claimed by the plaintiff as treasure-trove ; for a cabinet 
 of family jewels ; for a picture 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 Imperfect Con- 
 sideration; and both these subjects are closely connected 
 with the principle of enforcing those contracts, aud those 
 only, which are based on valuable consideration. 
 
 We will first consider the equity of election.' It has 
 
 (x) Mitf. 117 ; Duke of Somerset v. Cookson, 3 P. W. 389 ; Earl 
 of Macclesfield v. Davis, 3 Ves. & B. 16; Wood v. Rowcliffe, 3 Hare, 
 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. ; Gretton v. 
 Haward, 1 Swanst,, cited post, in the notes to the text of this edition ; 
 [and in the notes of Streatfield v. Streatfield, 1 Lead. Cas. Eq. 225, 
 where the matter is fully discussed.] See, also, Hall v. Hall, 1 Bland, 
 130, 134; McGinnis et al. v. McGinnis, 1 Kelly, 496; Clay and Craig 
 V. Hart, 7 Dana, 1 ; Field v. Eaton, 1 Dev. Eq. 283, 286 ; Brown v. 
 
260 ADAMS'S DOCTRINE OF EQUITY. 
 
 been stated as a general principle that the equity to en- 
 force contracts made for value, is extended by parity of 
 reasoning to cases where a benefit has been conferred as 
 the consideration for an act, and knowingly accepted, 
 although the party so accepting it may not be bound by 
 an actual contract, or by a condition of performance an- 
 nexed to the gift.(?/) The equity of election is analo- 
 gous to this. It applies 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 property 
 to A., and by the same will disposes of property belong- 
 ing to A. In this case there is no contract 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 there- 
 ^ fore elect between the two, '^and either relinquish 
 '- -■ his own property or compensate the disappointed 
 donee out of the property bequeathed. 
 
 From the definition given of this equity, it is obvious 
 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. 
 
 {y) Edwards v. Grand Junction Railway, 1 M. & C. 650 ; Green v. 
 Green, 19 Ves. 665; 2 Meriv. 86; Grctton v. Haward, 1 Swanst. 409, 
 427. 
 
 Rioketts, 3 John. Ch. R. 553; Allen v. Getz, 2 Pen. & W. 311; [Mar- 
 riott V. Sam Badger, 5 Maryl. R. 306 ; McElfresh v. Schley, 2 Gill, 
 182 ; Cauffnian v. Cauffman, 17 Serg. & R. 16 ;] Upshaw v. Upshaif 
 and others, 2 Hen. & M. 381. 
 
OF ELECTION. 261 
 
 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 compensa- 
 tion can attach. In the case, therefore, of an appoint- 
 ment 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 property, 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, previously 
 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 intention to give the 
 realty did not appear, (a)^ So again, where d. ferae coverte 
 
 (z) Bristow V. Warde, 2 Ves. J. 336; Kater v. Eoget, 4 Y. & C. 18. 
 (o)Brodie v. Barry, 2 V. & B. 127 ; Sheddon v. Goodrich, 8 Ves. 
 481. 
 
 ' [Melick V. Darling, 11 Ohio, 351. It is not material, however, 
 whether the testator knew that the property he has attempted to dispose 
 of belonged to another, or whether he mistakingly supposed it to be his 
 own. Stump v. Findlay, 2 Rawie, 168.] 
 
 " [Snelgrove v. Snelgrove, 4 Desaus. 274; Melchor v. Burger, 1 Dev. 
 & Batt. Eq. 634. So where a will is made in one State, professing to 
 pass both real and personal estate, but is not executed so as to pass real 
 estate in another State, the heir is not put to an election in the latter. 
 
262 ADAMS'S DOCTRINE OF EQUITY. 
 
 has made a will in exercise of a testator's power of ap- 
 pointment, 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 appoint- 
 ment, without relinquishing his marital right. (5) The 
 same principle applies where a testator, having a limited 
 power of appointment, exercises it in favor of the 
 L -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 subsequent 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 re- 
 spect 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 property, 
 the doctrine of election is not excluded. Such, for ex- 
 ample, was the case where a will of earlier date than 1 
 Vict. c. 26, professed to extend to after-acquired lands. 
 The lands did not pass by the will ; but if the heir 
 
 (h) Kich V. Cookell, 9 Ves. 369. 
 
 (c) Carver v. Bowles, 2 R. & M. 301; Kater v. Roget, 4 Y. & C. 18. 
 [Blaoket v. Lamb, 14 Beav. 482.] 
 
 Maxwell v. Maxwell, 2 De G. Maon. & G. 705 ; Jones v. Jones, 8 Gill, 
 197. In Maxwell v. Maxwell, ut supr., the principle was stated by L. 
 J. Knight Bruce, to be "that the generality merely, or the universality 
 merely, of the gift of the property, is not sufficient to demonstrate or 
 create a ground of inference, that the giver meant it to extend to pro- 
 perty incapable, though his own, of passing by the particular act." 
 
 But a case for election may arise, even where a will is incapable of 
 passing realty, as where the legacy and devise cannot be separated. 
 Thus where in such case the real estate is devised away, but charged 
 with a legacy for the heir-at-law, the latter must elect. Nutt v. Nutt, 1 
 Freem. Ch. 128.] 
 
OF ELECTION. 263 
 
 claimed an interest under it, he was put to his elec- 
 tion. ((Z)^ 
 
 In accordance with the same principle, there is no 
 equity for election, if the testator has himself a partial 
 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 another person, 
 under circumstances to which the Dower Act does not 
 apply. If such devise be expressly made free of dower, 
 or if its nature be inconsistent with the contrary hypo- 
 thesis, the widow is bound- to elect. But it is otherwise, 
 if the devise be in general terms. For it may be in- 
 tended as a gift 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 pro- 
 perty, (e)' For the same reason, it has been decided, 
 
 (d) Churchman v. Ireland, 4 Sim. 520 ; 1 R. & M. 250 ; Theluson 
 V. Woodward, 13 Ves. 209. 
 
 (e) Birmingham v. Kirwan, 2 Soh. & L. 444 ; Holdich v. Holdioh, 
 2 N. C. C. 18 ; Ellis v. Lewis, 3 Hare, 310; 1 Jarm. on Dev. 366, 
 408; Lowes v. Lowes, 5 Hare, 501. 
 
 1 [S. P. MoElfresh v. Sehley, 2 Gill, 182 ; contra City of Phila. v. 
 Davis, 1 Whart. 490, though the point was not directly decided. 
 Where, however, it is not clear on the face of the will that the testator 
 intended to refer to after-acquired lands, it is not a case for election. 
 Hall V. Hall, 2 McCord, Ch. 269 ; City of Philada. v. Davis, ut sup. 
 See Schroder v. Schroder, 18 Jur. 987.] 
 
 ' [It must be clear, beyond reasonable doubt, that the testator de- 
 signedly assumed to dispose of the property of the beneficiary, and did 
 not intend to dispose of any expectant or other interest of his own in 
 the property. Havens v. Sackett, 15 N. Y. 365. j 
 
 * 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. Cald- 
 well, 1 Speer's Eq. 322 ; Whilden v. Whilden, Riley's Ch. 205 ; Tim- 
 
264 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 exclusion of 
 *specific legatees. For it will be presumed that 
 L -J 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 doubt- 
 ful 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 event of its 
 proving that he has no power to give, or if he expressly 
 
 (/) Kidney v. Coussmaker, 12 Ves. 136. 
 
 berlake v. Parrish's ex'r, 5 Dana, 345; Kinsey v. "Woodward, 3 Haning. 
 459 ; Smith v. Kniskern, 4 John. C. R. 9 ; Wood v. Wood, 5 Paige, 
 597 ; Havens v. Havens et al. 1 8andf. Ch. 325 ; Fuller v. Yates, 8 
 Paige, 325; Sanford v. Jackson, 10 Id. 266; Webb v. Evans, 1 Binney, 
 565; Kennedy v. Nedrow, 1 Dal. 415 ; Snelgrove v. Snelgrove, 4 Desau. 
 274 ; Ambler v. Norton, 4 Hen. & M. 23. [This subject has been 
 very fully and ably discussed in the notes to Streatfield v. Streatfield, 1 
 Lead. Gas. Eq. 225.] 
 
 ^ [That the doctrine of election does not apply to creditors, has been 
 denied as a general rule in Pennsylvania. Irwin v. Tabb, 17 Serg. & E. 
 419 ; Adlum v. Yard, 1 Eawle, 163 ; and it has been frequently held 
 there that creditors taking a benefit under an assignment, fraudulent in 
 law, elect not to disaffirm it. See Lanahan v. Latrobe, 7 Maryl. 268. 
 It is otherwise, howeverj as to assignments fraudulent in fact : Hayes 
 v. Heidelberg, 9 Penn. St. 207 ; and an inclination was there mani- 
 fested not to carry the doctrine of Adlum v. Yard any further. The 
 actual point decided in Kidney v. Coussmaker, as stated in the text, 
 however, was never questioned in any of the cases. See also Watera v. 
 Howard, 1 Maryl. Ch. 112.] 
 
OF ELECTION. 265 
 
 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 not admissible in cases of election, 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 favor of abiding by the ordinary 
 rule. (A)' 
 
 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 conflicting 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 
 
 (g) Bor. V. Bor. 3 B. P. C. by Toml. 167 ; Church v. Kemble, 5 
 Sim. 525. 
 
 (K) Druce v. Dennison, 6 Ves. 385 ; Dummer v. Pitcher, 2 M. & K. 
 262 ; Clementson v. Gandy, 1 K. 309 ; 1 Jarm. on Wills, 391 ; "Wig- 
 ram on Wills, 39. 
 
 ^ [The intention to raise an election must clearly appear on the face of 
 the will. Jones v. Jones, 8 Gill, 197 ; McElfresh v. Schley, 2 Gill, 
 182 ; Waters v. Howard, 1 Maryl. Ch. 112 ; Wilson v. Amy, 1 Dev. 
 & Batt. Eq. 376. It cannot be raised by evidence dehors. City of 
 Phila. V. Davis, 1 Whart. 490 ; Timberlake v. Parish, 5 Dana, 345 ; 
 Waters v. Howard, 1 Maryl. Ch. 112. Though there will be no objec- 
 tion to such evidence so far as it goes only to show the state and circum- 
 stances of the property. Waters v. Howard, ut sup.] 
 
266 ADAMS'S DOCTRINE OF EQUITY. 
 
 both interests ; and the mere fact that the benefit has 
 been conferred, or even that it has been accepted in 
 ignorance of the ^conveyance, does not bind his 
 L -^ right.' If, therefore, a bill be filed against him, 
 he may insist on the values being ascertained before a 
 decrfee to elect is made ; or he may himself as plaintiff 
 sustain a bill to have the accounts taken and the pro- 
 perty ascertained, (i) If he be incompetent to make his 
 election, as in the case of infancy or coverture, the Court 
 will dp 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, 
 
 (0 Pusey V. Desbouvrie, 3 P. W. 315; Dillon v. Parker, 1 Swans. 
 359, 381. 
 
 (/c) Gretton v. Haward, 1 Swanst. 413, n. 
 
 ^ [Snelgrove v. Snelgrove, 4 Desaus. 274 ; Adsit v. Adsit, 2 John. 
 Ch.448; Pinckney v. Pinckney, 2 Rich. Eq. 219; Upshaw v. Upshaw, 
 2 Hen. & Munf. 381 ; Duncan v. Duncan, 2 Yeates, 302. An election, 
 however, made in ignorance of the law, but with full knowledge of all 
 material facts, as in the case of a widow taking under her husband's 
 will to the exclusion of dower, is binding, unless there were fraud or 
 imposition. Light v. Light, 21 Penn. St. 407. An election once made, 
 though by matter in pais, is binding. Upshaw v. Upshaw, 2 Hen. & 
 Munf. 381 ; Gaston v. Caston, 2- Rich. Eq. 1; Buist v. Dawes, 3 Rich. 
 Eq. 281. As to what circumstances will amount to proof of such election 
 where the party to elect has remained in possession of both estates, see 
 Padbury v. Clark, 2 Macn. & Gord. 298; 2 H. & Twells, 341, S. C; 
 Marriott v. Sam Badger, 5 Maryl. R. 306. Where both rights are 
 legal, an election operates as an estoppel at law. Buist v. Dawes, 3 
 Rich. Eq. 281.J 
 
 ^ [See Robertson v. Stevens, 1 Ired. Eq. 247 ; Sledds v. Carey, U 
 B. Monr. 181 ; Addison v. Bowie, 2 Bland, 606 ; Kavanaugh v Thomp- 
 son, 16 Alab. 817 ; McQueen v. McQueen, 2 Jones Eq. 16. An elec- 
 tion by a feme coverte may be presumed after a great lapse of time. 
 Tiernan v. Roland, 15 Penn. St. 429.] 
 
OF ELECTION. 267 
 
 when made, binds himself alone, and does not affect 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 de- 
 rivative interests under the first elector ; for such deriva- 
 tive 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.(Z) 
 
 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, conform- 
 ing throughout to the testator's disposition, he 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 disap- 
 pointed donee, or must compensate him thereout for his 
 disappointment. With respect, however, to this last 
 point, some doubt exists. And it appears to be uncer- 
 tain whether the consequence of an election to take 
 against the will is confined to a liability *to com- p^Q_, 
 pensate, or is a forfeiture of the property devised.^ L -I 
 
 (0 Cavan v. Pulteney, 2 Ves. J. 544 ; Ward v. Baugh, 4 Ves. 623. 
 
 ^ [It has been frequently held, in this country, that it is compensation 
 and not forfeiture, upon which Equity proceeds in cases of this kind : 
 Cauffman v. Cauffman, 17 Serg. & E. 16; City of Philadelphia v. Davis 
 1 Whart. 490 ; Stump v. Findlay, 2 Eawle, 168 ; Key v. Griffin, 1 
 Rich. Eq. 67; Marriott v. Sam Badger, 5 Maryl. R. 306; and the 
 
268 ADAMS'S DOCTRINE OF EQUITY. 
 
 In the case of a contract for valuable consideration, the 
 result would be clearly forfeiture ; for if the party claim- 
 ing 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 ori- 
 ginate 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 forfeiture, unless the Court can 
 imply a gift to the disappointed donee, for which the tes- 
 tator 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 disclaimed the interest 
 devised, (rw) 
 
 The next equity which requires notice is that of meri- 
 torious, or imperfect consideration. 
 
 (m) 2 Sug. on Powers, 145 ; 1 Roper, Hus. and Wife, by Jacob, 156 n. ; 
 Gretton v. Haward, 1 Sw. 433 n.; 2 Roper on Legacies, 571-8; Kerv. 
 Waucbope, 1 Bligh, 1. 
 
 general rule was admitted so to be, in Lewis v. Lewis, 13 Penn. St. 82. 
 But in this last case, it was beld, tbat wbere the estate retained, is greater 
 in value than that devised, compensation would be useless, and there- 
 fore a decree should be made in favor of the disappointed devisee di- 
 rectly, on the ground of forfeiture ; and that, as a consequence, nnder 
 the peculiar system of Pennsylvania, he could recover in ejectment. In 
 Marriott v. Sam Badger, 5 Maryl. R. 206, where a slave belonging to 
 a legatee was emancipated by will, it was held that no case of election 
 arose, because, the principle being compensation, if the slave received 
 the legacy as compensation, his master would be immediately entitled to 
 ti again, yure domini. 
 
OF IMPERFECT CONSIDERATION. 269 
 
 The doctrine of meritorious consideration originates 
 in the distinction between the three classes of consider- 
 ation 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 performance of the promise. 
 
 The second, or intermediate class, is termed merito- 
 rious, 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 provi- 
 sions made for persons, not being children of the party 
 promising, but in ^relation to whom he has mani- r^qo-i 
 fested an intention to stand in loco parentis, in 
 reference to the parental duty of making provision for a 
 child, (n) 
 
 Considerations of this imperfect class are not distin- 
 guished at law from mere voluntary bounty, but are to 
 a modified extent recognized in equity. And the doc- 
 trine with respect to them is, that although a promise 
 made without a valuable consideration cannot be en- 
 forced against the promisor, or against any one in 
 whose favor he has altered his intention, yet if an in- 
 tended gift on meritorious consideration be imperfectly 
 executed, and if the intention remains unaltered at the 
 death of the donor, there is an equity to enforce it in 
 favor of his intention, against persons claiming by ope- 
 ration of law without an equally meritorious claim. 
 
 (n) Perry v. Whitehead, 6 Ves. 544; Ex parte Pye, 18 Ves. 140 ; 
 Powys V. Mansfield, 3 M. & C. 359 ; Pym v. Lookyer, 5 M. & C. 29. 
 
 ' [Equity will relieve against the defective execution of a power in 
 favor of a charity. Innes v. Sayer, 3 Macn. & Gord. 606 ; aff'g S. C. 
 7 Hare, 377.] 
 
270. ADAMS S DOCTRINE OF EQUITT. 
 
 The principal applications of this equity are in sup- 
 plying surrenders of copyhold against the heir, and in 
 supporting defective executions of powers, when the de- 
 fect is formal, against the remainderman. 
 
 The equity for supplying surrenders of copyholds ori- 
 ginates 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 admis- 
 sion ; in the other, the person designated in the will is 
 entitled to admission on the testator's death. If a grant 
 or devise were made without a previous surrender, it 
 was formerly inoperative at law ; but if it were made 
 for meritorious consideration, the surrender might be 
 supplied inequity. The jurisdiction thus to supply a 
 surrender existed whether the gift were hj 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 
 r*qQi devised by will, and that copyholds *shall be in- 
 '- -^ eluded under that description, notwithstanding 
 that the testator may not have surrendered them to the 
 use of his will, nor have even been himself admitted to 
 them. ( J)) 
 
 The exercise, therefore, of the equity in question is 
 now principally confined to defective executions of 
 powers.^ And the powers to which it applies are those 
 
 (o) Rodgers v. Marshall, 17 Ves. 294. (p) 1 Vict. c. 26, s. 3. 
 
 ^ [Equity relieves against the defective execution of a power, in favor 
 of purchasers, creditors, children, or a wife. Schenck v. EUingwood, 3 
 Edw. Ch. 175 ; Porter v. Turner, 3 Serg. & R. 108 ; Dennison v. Goeh- 
 ring, 7 Penn. St. 175; Bradish v. Gibbs, 3 John. Ch. 523. Upon a 
 somewhat analogous principle, it is held, that where a person has a gene- 
 
OF IMPERFECT CONSIDERATION. 271 
 
 which have been created by way of use, as distinct from 
 bare authorities conferred by law. Acts done under autho- 
 rities of this latter kind, as, for example, leases or con- 
 veyances 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 re- 
 servations out of the original ownership, constituting 
 the donee a quasi owner, and the remainderman a quasi 
 heir; and consequently that, in conformity with this 
 hypothesis, the donee's contracts for value ought to bind 
 the remainderman, and his meritorious intention, if un- 
 
 ral power of appointment over property, which he actually exercises, 
 either by deed or will, he thereby subjects the property to the claims of 
 his creditors in preference to the claims of his appointee. But a Court 
 of equity will not interfere, unless the party upon whom the power has 
 been conferred, or to whom it is tendered, has done some act indicating 
 an intention to execute it; and the power of appointment must be a gene- 
 ral power. A power of appointment is general, or not, within the mean- 
 ing of the rule, according to the person or uses to which the property 
 may be appointed under it, and not according to the time when its exer- 
 cise takes eflFeot in possession, or the instrument by which its exercise is 
 to be manifested. If a party may by will or deed dispose of property, 
 to whom, and for such uses as he pleases, to take effect at his death, and 
 may thus apply it to the payment of his debts, or direct any other dispo- 
 sition to be made of it, he has as great a power of disposal as he has of 
 his own estate to take effect at the same time, and having undertaken 
 to exercise the authority, it may be treated as a part of his estate upon 
 his decease, so far as to require that he should first provide for his debts 
 out of it ; and if he fails so to do, equity may apply it as a part of his 
 estate, so far as it is necessary for that purpose. Johnson v. Gushing, 
 15 N. H. 298 ; Fleming v. Buchanan, 3 De G. M. & G. 976; see 2 
 Sugden on Powers, 7th Ed. 27. But it would appear in England to be 
 the opinion that equity will not aid a defective execution in favor of a 
 stranger, for the benefit of the creditors of the appointor. 2 Sugden, 
 102. This doctrine of treating a fund appointed to a volunteer, as assets 
 for creditors, was strongly disapproved by Gibson, C. J., in Comm. v. 
 Duffield, 12 Penn. St. 277.] 
 
272 ADAMS'S DOCTRINE OF EQUITY. 
 
 altered, ought to have the same effect. The soundness 
 of this equity has been questioned by Sir William Grant, 
 and its principle seems difficult to sustain. Por the power 
 given, though doubtless in some sense a modified owner- 
 ship, 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 prescribed, 
 is an advantage given to the remainderman. If, there- 
 fore, his interest is to be regarded, it is difficult to see 
 why he should be bound by any other than the pre- 
 scribed act ; for he is a stranger to any equity or consi- 
 deration. 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 considera- 
 tion on which it rests. The objection, however, which 
 is noticed in these remarks, appears not to be pecuhar to 
 the execution of powers, but to apply generally to the 
 equity of meritorious consideration, and to the principle 
 ^.,„„^ of enforcing *a gift on the ground of intention 
 -■ alone, as distinct from any binding contract, and 
 yet inquiring into the consideration on which that inten- 
 tion was based. (5) 
 
 Whatever opinion may be entertained as to the ori- 
 ginal 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 execu- 
 tion or contract the Court cannot interpose ;i for, unless 
 
 (g) Holmes v. Coghill, 7 Ves. 499 ; 12 Ves. 206 ; 2 Sug. on Powers, 
 c. 10. 
 
 ^ [Lippincott v. Stokes, 2 Halst. Ch. 122. If the Court is left in 
 doubt whether an execution was at all intended, it will not interfere; 
 such an intention must clearly appear. Ibid.] 
 
OF IMPERFECT CONSIDERATION. 273 
 
 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 exe- 
 cution 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 continuance until the death of the donee, and 
 the deed, if it avail at all, must avail to its destruc- 
 tion, (r) 
 
 The rule that the intention must remain unaltered 
 does not require any special notice. It might perhaps 
 have been originally contended, that the very fact of the 
 appointment being left imperfect was evidence 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 con- 
 tract against him, but to effectuate his intention in his 
 own favor, (s) 
 
 The only remaining requisite is, that the party against 
 whom relief is asked must not have an equally merito- 
 rious claim. If, therefore, the heir-at-law or remainder- 
 man be a *child unprovided for, it seems the 
 better opinion that the equity will not be en- ■- J 
 forced ; and the same rule prevails where relief is sought 
 against a grandchild, although a defective execution can- 
 
 (r) Tollett V. Tollett, 2 P. W. 489 ; Reid v. Shergold, 10 Ves. 370. 
 (s) Mnoh V. Finch, 15 Ves. 51 ; Antrobus v. Smith, 12 Ves. 39. 
 
 18 
 
274 ADAMS'S DOCTRINE OF EQUITY. 
 
 not be supplied in his favor.^ It is not, however, suffi- 
 cient 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 meri- , 
 torious consideration applies, are those where a man, 
 subject to a moral duty, does an act which may reason- 
 ably 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 be- 
 tween strangers would bear one construction, may be 
 construed differently where meritorious consideration 
 exists; e. g., a purchase made by one person in the 
 name of another, may be construed an advancement in 
 favor of a child, instead of a resulting trust for the pur- 
 chaser ; 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 sub- 
 stituted 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 presump- 
 tion 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 conveyance is taken in 
 the name of a child, or of one towards whom the pur- 
 chaser stands in loco parentis, a counter presumption 
 
 (0 Rodgers v. Marshall, 17 Ves. 294 ; Hills v. Downton, 5 Ves. 557; 
 2 Sug. on Powers, c. 10, and App. 24. 
 
 ' [See Porter v. Turner, 3 Serg. & R. 108.} 
 
OF IMPERFECT CONSIDERATION. 275 
 
 arises. And the prima facie probability is, that the pur- 
 chase was meant as a provision or advancement for the 
 child." In either case the *doctrine is one of r-^-.^.^-. 
 presumption, not of the construction of the con- ^ J 
 veyance itself There 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, (m) It may, for instance, be 
 
 (it) Hall V. Hill, 1 Conn. & L. 120. 
 
 ' 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 advance- • 
 ment until the contrary is proved, and no trust will result to the hus- 
 band or father. Astreen v. Flanagan, 3 Edw. Ch. 279 ; Livingston v. 
 Livingston, 2 Jobn. 0. R. 537 ; Sampson v. Sampson, 4 S. & R. 329 ; 
 Taylor V. James, 4 Desaus. 1. [Partridge v. Havens, 10 Paige, 618; 
 Knouffv. Thompson, 16 Penn. St. 357; Dennison v. Goehring, 7 Penn. 
 St. 182 n. ; Dudley v. Boswbrth, 10 Humph. 12 ; Tremper v. Barton, 
 18 Ohio, 418; Taylor v. Taylor, 4 Gilm. 303; Jackson v. Matsdorff, 11 
 John. 91 ; Creed v. Lancaster Bank, 1 Ohio St. 1 ; Smith v. Smith, 
 21 Alab. 76.] 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. [In equity the estate 
 will be subjected to the claims of the parent's creditors : Guthrie v. 
 Gardner, 19 Wend. 414; Croft v. Arthur, 3 Desaus. 223; Jencks v. 
 Alexander, 11 Paige, 619 ; Abney v. Kingsland, 10 Alab. 355 ; Doyle 
 V. Sleeper, 1 Dana, 531; Rucker v. Abell, 8 B. Monr. 566; and in 
 Pennsylvania, the land may be levied upon directly. Kimmel v. McRight, 
 2 Penn. St. 38. See also ante, p. 34, in note.] 
 
 ^ [This presumption of advancement may be rebutted by parol evi- 
 dence. Dudley V. Bosworth, 10 Humph. 12 ; Jackson v. Matsdorf, 11 
 John. 91; Taylor v. Taylor, 4 Gilm. 303; Tremper v. Barton, 18 Ohio, 
 418.] 
 
276 ADAMS'S DOCTRINE OF EQUITY. 
 
 shown that the child was already fully provided for, 
 which affords a presumption that no further advance- 
 ment was intended. It may be shown that at the time 
 of the purchase, or in immediate connection 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 favor of the presumed 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 sub- 
 sequent acts and declarations cannot be admitted as evi- 
 dence in his favor, although those of the child might be 
 so used.(w) 
 
 With respect to legacies, the distinction between lega- 
 cies 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 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, regards 
 the period from which interest is given. The ordinary 
 rule is that, if the testator has not expressed a different 
 
 (v) Murless v. Franklin, 1 Sw. 13 ; Grey v. Grey, 2 Sw. 594 ; Sid- 
 mouth T. Sidmouth, 2 Bea. 447 ; Scawin v. Scawin, 1 N. C. C. 65 ; 
 Skeats v. Skeats, 2 N. C. C. 9. 
 
 ^ [Subsequent declarations of the father, however, are incompetent. 
 Tremper v. Barton, 18 Ohio, 418.] 
 
OF IMPERFECT CONSIDERATION. 277 
 
 *intention, a legacy shall bear interest from the 
 time fixed for payment of the principal, or if no L -• 
 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 parentis, it is treated as a gift 
 by way of provision ; 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. («/j)^ Another instance of the same distinc- 
 tion occurs in the case of successive legacies or gifts, viz., 
 
 (w) 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 interest 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 ; [Byre v. Gold- 
 ing, 5 Binn. 475; Bitzer v. Hahn, 14 Serg. & R. 238 ;] so in Virginia 
 and New York; Shobe v. Carr, 3 Munf 10; Williamson v. Williamson, 
 6 Paige C. R. 298 ; Marsh v. Hague, 1 Edw. Ch. 174 ; see Hammond 
 V. Hammond, 2 Bland, 306. But where a legacy is given to an infant 
 child, who is otherwise unprovided 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- 
 rentis. Sullivan v. Winthrop, ubi supra ; Hite v. Hite, 2 Rand. 409 ; 
 [Miles V. Wister, 5 Binn. 479 ; Bitzer v. Hahn, 14 Serg. & R. 232. 
 So, though the legacy is payable at twenty-one, and without mention of 
 interest, Ibid. ; or is given for life, for separate use. Bird's Est. 2 
 Pars. Eq. 168.] This exception does not extend to the case of a grand- 
 child : Lupton v. Lupton, 2 John 0. R. 614; [see Smith v. Bloore, 25 
 Verm. 127; Walker v. Walker, 17 Alab. 396; but see Bitzer v. Hahn, 
 14 Serg. & R'. 232, semh. contr. ; nor to grand-nephews : Miles v. Wister, 
 5 Binn. 479 ; nor to the widow. Martin v. Martin, 6 Watts, 67 ; Gill's 
 App. 2 Penn. St. 231. 
 
 As a legacy to a child carries interest, in the excepted cases, on the 
 ground of the duty of maintenance, where the parent has fulfilled that 
 duty, by providing maintenance out of another fund, the legacy does not 
 necessarily carry interest. Rouse's Est. 9 Hare, 649.] 
 
278 ADAMS'S DOCTRINE OF EQUITY. 
 
 where a legacy has been bequeathed or a promise made, 
 which has been followed by a gift inter vivos, or by a 
 legacy of later date. 
 
 It will be convenient to consider each case separately, 
 taking first that of a prior legacy, and afterwards that 
 of a prior promise. 
 
 In the case of a prior legacy, followed by a gift or 
 legacy of later date, the question which 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 reiteration of the original gift. If it 
 was so intended, and the intention is proved by admis- 
 sible evidence, the first legacy is as obviously at au 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 favor of its 
 being held an independent benefit. And if it be con- 
 ferred by a written instrument, extrinsic evidence of the 
 intention is not admissible, (x) The construction, how- 
 ever, 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 rela- 
 tive position in which the parties stand. The first 
 P1041 *S^°'^'^^ ^^ presumption, arising from the simi- 
 larity of the gifts and motives, is not material to 
 our present purpose. It is sufiicient to observe, that 
 mere equality of amount is not such an identification of 
 the gifts as will prevent their cumulative effect. But if, 
 
 (a;) Ex parte Dubost, 18 Vcs. 140 ; Kirk v. Eddowes, 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 IMPERFECT CONSIDEE ATION. 279 
 
 in addition to this, the same motive is expressed for both, 
 the double coincidence gives rise to a presumption that 
 repetition was intended, and not accumulation. (2/)^ The 
 second ground of presumption arises out of the relative 
 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 presumption is that the 
 first legacy was intended as a provision, proportioned to 
 the then existing claims of the legatee, and that the 
 later gift or legacy had the same object, and was in- 
 tended as an immediate payment or a modified repeti- 
 tion, either in full or pro tanto, by reason of altered cir- 
 cumstances, of the first. And the circumstance, that 
 the second benefit differs in amount or disposition from 
 the first, is not inconsistent with such presumption. The 
 doctrine on this point is expressed by the maxim, that 
 "the presumption is against a double portion." (z)^ The 
 
 {y) Hurst v. Beach, 5 Madd. 351 ; Suisse v. Lord Lowther, 2 Hare, 
 424. 
 
 (2;) Wharton v. Earl of Durham, 3 M. & K. 472 ; 3 CI. & F. 146 ; 
 Pym V. Lockyer, 5 M. & C. 29 j Suisse v. Lord Lowther, 2 Hare, 424 ; 
 [Lady Thynne v. Earl Glengall, 2 House Lds. Gas. 153.] 
 
 ^ See the ca-ses of Dewitt v. Yates, 10 Johns. 156 ; Jones v. Creve- 
 . ling's Ex'rs, 4 Harrison, 127 ; Id. IZabriskie, 573. 
 
 [The rule, as established by the.se cases, is, that where the two be- 
 quests occur in the same instrument, the presumption is most strongly 
 in favor of repetition; but if in different instruments, then the presump- 
 tion is, in general, in favor of cumulation. In the former case, the fact 
 that the second legacy is charged upon land, will not rebut the presump- 
 tion of repetition. Dewitt v. Yates, ut sup.] 
 
 ^ [Ademption only takes place where a parent bequeaths a legacy to 
 a child, and afterwards gives a portion to the same child, which is ejus- 
 dem generis. A house and lot is not ejusdem generis with a pecuniary 
 legacy, and cannot adeem it. Swoope's Appeal, 27 Penn. St. 58. See 
 also Rogers v. French, 19 Geo. 316. 
 
 In New York, it has been held that the intention of a testator that a 
 
280 ADAMS'S DOCTRINE OF EQUITY. 
 
 presumption thus raised, whether it be based on a com- 
 parison of the two gifts, or on the relative position of 
 the two parties, is against the prima fade construction 
 of the second gift. And therefore it may be rebutted by 
 extrinsic evidence of intention, and sustained by counter 
 evidence of the same kind, notwithstanding that the gift 
 is by a written instrument, (a) 
 
 The second case is that of a promise inter vivos, fol- 
 lowed 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 ; and his pro- 
 P^-,p,r-i mise is in *fact performed. (Z>) 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 original promise. If an 
 intention to that effect be shown, the promisee must 
 elect between the two benefits. The principle of deci- 
 sion in this case is the same as in that of double legacies. 
 The prima, facie construction of the second gift is in 
 favor of its being considered independent of the first. 
 
 (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. 
 
 subsequent gift or advancement shall operate as a satisfaction of a legacy 
 cannot be presumed, for in such a case, there is an implied revocation of 
 the will, which is forbidden by the Rev. Sts. Langdon v. Astor's Ex- 
 ecutors, 3 Duer, 477.] 
 
 1 [The subject of the satisfaction of debts, portions, and legacies, is 
 very fully discussed in the notes to Ex parte Pye, 2 Lead. Cas. Eq. p. 
 i, 446, where all the American cases are cited and commented upon. 
 The rules on the subject are, in general, the same in this country as in 
 England.] 
 
OF IMPERTECT CONSIDEE ATION. 281 
 
 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 
 portion, and consequently that the second is in lieu of 
 the first, (c) The effect, however, of differences between 
 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 therefore any 
 variation from its terms tends to the conclusion that it 
 was not in his mind, {d) 
 
 The presumption which arises from the relationship 
 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 relation- 
 ship, 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 sub- 
 stantially equivalent to payment, (e) But the presump- 
 tion 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 evidence, not- ^. , „„^ 
 
 . . r 1061 
 
 withstanding that the gift is by a written mstru- ^ -i 
 
 (c) Ansley v. Bainbridge, 1 E. & M. 657 ; Jones v. Morgan, 2 Y. & 
 C. 403 ; Weall v. Kice, 2 K. & M. 251 ; Plunkett v. Lewis, 3 Hare, 
 316 ; Hall v. Hill, 1 Conn. & L. 120. 
 
 (rf) Wharton v. Earl of Durham, 3 M. & K. 472 ; 3 01. & F. 146, 
 155., [Lady Thynne v. Earl of Glengall, 2 H. Lds. Gas. 153.] 
 
 (e) Plunkett v. Lewis, 3 Hare, 316 ; 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. 
 
282 Adams's doctrine of equity. 
 
 ment. But it must be evidence in rebuttal or confirma- 
 tion of the presumption, and not evidence to construe 
 the instrument itself.^ The presumption, therefore, 
 must first arise, and if the instrument is so worded that 
 its prima facie construction is not altered by the rela- 
 tionship alone, extrinsic evidence of intention is not ad- 
 missible, (g^) 
 
 The last equity which will be considered in the pre- 
 sent chapter, is the converse to that of specific perform^ 
 ance, and consists in giving eJBfect to discharges by mat- 
 ter in pais of contracts under seal, and in confining the 
 claim on a contract with a penalty to the specific per- 
 formance 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 therefore unaf- 
 fected by an accord by parol, or other matter in pais, 
 which would operate as a discharge of a simple con- 
 tract. (7i) In equity, however, the rule is otherwise. 
 
 (g) Wallace v. Pomfret, 11 Ves. 542 ; Hall v. Hill, 1 Conn. & L. 
 120. 
 
 (70 1 Selw. N. P. 518, 549. 
 
 1 [Eaton V. Benton, 2 Hill, 576 ; Jones v. Mason, 5 Rand, 577 ; 
 Brady v. Cabitt, 1 Dougl. 30 ; Zeigler v. Eckert, 6 Penn. St. 13 ; Zei- 
 ter V. Zeiter, 4 Watts, 212.] 
 
 ^ See post, notes to pp. Ill, 112. 
 
 It is settled, in Pennsylvania, that verbal stipulations by one party, on 
 the faith of which a written agreement is executed by the other, will 
 control the writing, even in the absence of evidence of a fraudulent de- 
 sign. Hultz v. Wright, 16 S. & E. 345 ; Christ v. Diffenbach, IS. & 
 R. 464 ; Miller v. Henderson, 10' Id. 292 ; Clark v. Partridge, 2 Penn. 
 St. 13, 4 Id. 166. See Keisselbrack v. Livingston, 4 John. Ch. R. 
 114. 
 
DISCHARGES, ETC., OF CONTRACTS, ETC. 283 
 
 For the form of agreement is immaterial ; and if the act 
 done is in substance a discharge, it will warrant a de- 
 cree for the execution of a release, or for delivery up 
 and cancellation of the specialty.' 
 
 The most ordinary application of this equity is in 
 favor of sureties, where a guarantee has been given 
 under seal, and the creditor, without the surety's con- 
 sent, has discharged or modified the principal's liability. 
 In this case the doctrine of the law is, that by such dis- 
 charge 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 agree- 
 ment be substituted without his assent, his contract is 
 at an end.(i)^ 
 
 *The same effect is produced if the creditor 
 enters into a binding contract to give time for l J 
 payment to the principal. For it would be a fraud on 
 the contract, if he were afterwards to receive his debt 
 from the surety, and thus confer on him an immediate 
 right of action against the principal. The position of 
 the surety is therefore varied, and he is in consequence 
 discharged altogether from his guarantee. If, however, 
 the creditor, in agreeing to give time, expressly reserve 
 his remedies against the surety, there is no discharge ; 
 
 (i) Saranell v. Howarth, 3 Meriv. 272 ; Mayhew v. Crickett, 2 Sw. 
 186; Smith's Merc. Law, 423; 3 Jarman's Bythewood, 3d Edit. p. 
 298-305. 
 
 ' [In general, however, the Court will not decree that to be a re- 
 lease in equity which is not so at law, unless there be a valuable consi- 
 deration. Cross V. Sprigg, 6 Hare, 552 ; Tufnell v. Constable, 8 Sim. 
 69 ; Peace v. Hains, 17 Jurist, 1091 ; Campbell's Est. 7 Penn. St. 100.] 
 
 '' [On the subject of the discharge of a surety by the conduct of the 
 creditor, see post, 268, note ; and the notes to Kees v. Berrington, 2 
 Lead. Cas. Eq. p. ii, 366, where the American cases are cited.] 
 
284 ADAMS'S DOCTRINE OF EQUITY. 
 
 for although he undertakes not to sue the principal di- 
 rectly, he does not preclude himself from enabling the 
 surety to do so. Nor will the surety be discharged by 
 mere forbearance to sue, unless there be a stipulation in 
 the guarantee, binding the party guaranteed to use due 
 diligence against the principal. (Z^) 
 
 The doctrine which has just been 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 con- 
 duct from being pleaded at law. And a consequent 
 equity arises to restrain him from suing at law, and to 
 compel him, if requisite, to give up or cancel the guaran- 
 tee. (Z) 
 
 The equity for relief against enforcement of Penal- 
 ties, originates in the rule which formerly prevailed at 
 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 
 
 (Jc) Ex parte Glendinning, Buck, 517 ; Boultbee v. Stubbs, 18 Ves. 
 20 ; Eyre v. Everett, 2 Russ. 381. 
 
 (I) 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 com- 
 pensation can be made. Haokett v. Alcock, 1 Call. 533 ; Mayo v. 
 Judah, 5 Munf. 495 ; and also against back interest, secured by way of 
 penalty. Mosby v. Taylor, Gilra. 172 ; and will not aid the recoveryof 
 a penalty of forfeiture, or anything in the nature of one. Livingston v. 
 Tompkins, 4 John. Ch. Rep. 431 ; [MeKim v. White Hall Co. 2 
 Maryl. Ch. 510 ; Shoup v. Cook, 1 Carter, 135.J But 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. 857 ; see, also. White v. Ding- 
 
BELIEF AGAINST PENALTIES. 285 
 
 contracts as matters for specific performance, was natu- 
 rally led to the conclusion that the annexation of a 
 penalty did not alter their chiiracter; 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 the other hand, would restrain ^jj,, „„, 
 *proceedings to enforce the penalty on a subse- '- -■ 
 quent 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 reim- 
 bursement 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 of non-payment of rnoney . (??i) ' 
 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 
 
 (m) 8 & 9 Wm. 3, c. 11, s. 8 ; 4 & 5 Ann. c. 16, ss, 12, 13; 1 Selw. 
 N. P. 542, 569, 588. 
 
 ley, 4 Mass. 483 ; Pierce v. Fuller, 8 Id. 223 ; Tingley v. Cutler, 7 
 Conn. 291 ; Slosson v. Beadle, 7 Johns. 72 ; Myers v. Hay, 3 Mis- 
 souri, 98 ; Grammon v. Howe, 14 Maine, 250. Where a stipulation is 
 designated in the contract as a penalty, how far a Court will consider a 
 sum stipulated as liquidated damages, see Taylor v. Sandiford, 7 Wheat. 
 19; Curry v. Larer, 7 Penn. St. 470. [See on this subject the notes 
 to Peachy v. Somerset, 2 Lead. Cas. Eq. p. ii, 448 ; where the Ame- 
 rican and English cases are collected and very fully considered. 
 
 A proviso in a mortgage, that the whole sum shall become due upon 
 the failure to pay any one of the instalments on the day, is in the nature 
 of a penalty, against which equity will relieve upon adequate compensa- 
 tion, viz., payment of instalment due, interest, and costs. Tiernan v. 
 Hinman, 16 111. 400.] 
 
 ' [These or similar statutes are in force generally in the United States.] 
 
286 ADAMS'S DOCTRINE OF EQUITY. 
 
 impose a penalty ; but extends to all agreements where 
 a stipulation is made in the event of non-performance, 
 which on the whole matter appears 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 ascertained or liquidated damages, for doing 
 or omitting a particular act, there is no equity to substi- 
 tute 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 cove- 
 nants of varying importance, and the same specific sum 
 is made payable in respect of each, the stipulated pay- 
 ment will be held a penal one, notwithstanding that it 
 
 ' [It is stated by Judge Hare in his lucid and able notes to Peachy v. 
 Somerset, 2 Lead. Cas. Eq. p. ii, 472, upon a full examination of the 
 cases, that the result " seems to be, that equity will not permit a re- 
 covery for the breach of a contract, to an extent manifestly greater than 
 the injury suffered, but that the parties may fix upon that amount of 
 compensation, which does not come in conflict with this limitation. 
 Hence, when the injury is susceptible of definite admeasurement, as in all 
 cases -where the breach consists in the non-payment of money, the parties 
 will not be allowed to make a stipulation for a greater amount, whether 
 in the form of a penalty or of liquidated damages. But when, on the 
 other hand, the injury in question is uncertain in itself, and insusceptible 
 of being reduced to certainty by a legal computation, it may he settled 
 beforehand, by special agreement But even when the subject- 
 matter is one which admits of a compensation fixed by agreement, and 
 not by the law, still it must be a question, whether the parties have so 
 meant to fix it, and whether a stipulation for the payment of a sum cer- 
 tain, in case of default, is intended as a penalty, or as a liquidation ot 
 the damages. This is obviously a question of intention, determinable, in 
 the first place, by what appears on the face of the contract itself; and 
 next, by a resort to extrinsic circumstances." See also a full discussion 
 of the law on this subject in Cotheal v. Talmage, 5 Selden, 551.] 
 
RELIEF AGAINST PENALTIES. 287 
 
 may be otherwise named in the contract, (n) The dis- 
 tinction thus drawn between a 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 mort- 
 gage, with an agreement that if it be not paid punctually, 
 the rate shall be increased, the larger *interest is 
 in the nature of a penalty, and may be relieved L J 
 against in equity. But on the other hand, if the larger 
 rate be originally reserved, with an agreement for reduc- 
 tion on punctual payment, the condition for such punc- 
 tual 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 penal- 
 ties 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 interest is a complete compen- 
 sation 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 equiva- 
 lent for punctuality ; but its exercise is established by 
 precedent, and has been for the last century recognized 
 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 jurisdic- 
 tion is settled ; but it is not carried beyond this limit. 
 Relief will be granted where a forfeiture is incurred by 
 
 (n) Rolfe V. Peterson, 2 B. P. C. by Toml. 436; Kemble v. Farren, 
 6 Bing. 141; Boys v. Aneell. 5 Bing. N. C. 390; 3 Jarm. Byth, 325 
 -336. 
 
 (o) Nicholls V. Maynard, 3 Atk. 519. 
 
 (p) 4 Geo. 2, c. 28 ; Adams on Ejectment, 122. 
 
288 Adams's doctrine of equity. 
 
 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, with- 
 out such special equity, in respect of covenants for re- 
 pairing, insuring, or doing any specific act, where the 
 compensation must be estimated in damages, (g) 
 
 (2) Hill V. Barclay, 18 Ves. 56 ; Reynolds v. Pitt, 19 Ves. 134; Ex 
 parte Vaughan, T. & K. 434 ; Green v. Bridges, 4 Sim. 96 ; White v. 
 Warner, 2 Meriv. 459 ; Elliott v. Turner, 13 Sim. 477. 
 
PERFECT AND IMPERFECT MORTGAGES. 289 
 
 *CHAPTER III. [*110] 
 
 OF MORTGAGES, BOTH PERFECT AND IMPERFECT. 
 
 The equity for relief against penalties applies most 
 extensively to the case of Forfeited 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 property, which will be presently 
 Doticed as imperfect mortgages. But a regular mort- 
 gage is in the form which has been just mentioned, and 
 may be defined as a '•' security for a debt, created by con- 
 veyance 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 payment 
 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: Wilson v. Troup, 2 Cow. 
 195; Simpson v. Ammons, 1 Binn. 177; [Kagland v. Justices, 10 Geo. 
 65; see 4 Kent's Comm. 160, and the cases collected;] and in general, 
 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; [Aokia v. Ackla, 6 Penn. 
 St. 228 ; Wallis v. Long, 16 Alab. 738 ; Smith v. Smith, 15 N. H. 
 55; Armitage V. Wickliffe, 12 B. Monr. 488; Marriott v. Handy, 8 
 Gill, 31 ; Hadlock v. Bulfinch, 31 Maine, 246, 308 ; Wilson v. Drum- 
 
 19 
 
290 Adams's doctrine of equity. 
 
 Until the day of redemption is passed, the debtor is 
 not invested with any special equity, (a) He may pay 
 
 (a) Brown v. Cole, 14 Sim. 427. 
 
 rite, 21 Mo. 325 ; Blodgett v. Wadhams, Hill & Denio, 65 ; Ledyard 
 V. Chapin, 6 Ind. 320. So it is generally held in the United States, 
 that a payment or discharge of the mortgage debt, after condition broken, 
 operates as a reconveyance of the estate at law. See 4 Kent, 194, and 
 note. In some, however, the older law remains in force (Ibid.) ; and 
 in Connecticut, it is still held that, under such circumstances, the mort- 
 gagor has no legal title which can be set up in ejectment. Cross v. 
 Eobinson, 21 Conn. 379.] It is not necessary to the validity of a mort- 
 gage that it should state truly, the debt it is intended to secure, but it 
 shall stand as security for the real equitable claims of the mortgagee, 
 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. [The extent to 
 which a mortgage will cover future advances, has been a matter of con- 
 siderable discussion. The authorities will be found collected in 4 Kent's 
 Comm. 175. The general rule appears to be, that if it were a consti- 
 tuent part of the original agreement, that such advances' should be made, 
 they will be protected against intervening purchasers and incumbrancers 
 with notice of the agreement, otherwise not. In a recent case in Eng- 
 land, however, it has been held that, where a mortgage is executed to 
 cover future advances, the mortgagee making such advances with notice 
 of a subsequent incumbrance, will be postponed thereto. Rolt v. Hop- 
 kinson, 28 L. J. Ch. 41 (Lord Chancellor), overruling Gordon v. Graham, 
 2 Eq. Cas. Ala. 598. How far it is essential that the terms of such 
 agreement should appear on the face of the mortgage, is not quite clear. 
 See 4 Kent, 175. If the advances do not exceed the nominal amount 
 of the lien when recorded, it is decided that it is not necessary that they 
 should so appear, or that the creditor should have notice. Craig v. 
 Tappin, 2 Sandf. Ch. 78 ; Cadwalader v. Montgomery, 3 Am. Law 
 Register, 169. In some of the States, bond debts may be tacked to a 
 mortgage as against heirs and devisees, but not as against incumbrancers. 
 See note to Marsh v. Lee, 1 Lead. Cas. Eq. 431 ; Trescott v. King, 2 
 Selden, 147. A mortgage of personal property given to secure future 
 advances, as well as an existing debt, is valid for the sum due at the time 
 the mortgagees assert their title. Fairbanks v. Bloomfied, 5 Duer, 4u4. 
 
PERFECT AND IMPERFECT MORTGAGES. 291 
 
 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 reconveyance 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 redemp- 
 tion 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 mortga- 
 gor's right, to the extent to which it was originally trans- 
 ferred to the mortgagee, is *at law finally extin- 
 guished. If he has mortgaged his entire estate, L J 
 e. g., if he has mortgaged land in fee simple, he has no 
 interest 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 ex- 
 pectant 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 accordance with this 
 equity the mortgagor may file a bill, notwithstanding 
 forfeiture, praying for an account and redemption of the 
 estate, and insisting on a reconveyance by the mortga- 
 gee on repayment of the principal and interest due, to- 
 gether with all costs in equity or at law properly in- 
 curred by the mortgagee in protecting his right. (S) 
 
 (i) Dryden v. Frost, 3 M. & 0. 670; Morley v. Bridges, 2 Coll. 621. 
 
 See also Chapin v. Cram, 40 Maine, 561 ; Hamilton v. Rogers, 8 Maryl. 
 301. In the former case a mortgage of stock provided that all additions 
 subsequently made, should be held in the same manner as the goods 
 then in store. It was held that this clause could have no effect to vest 
 such additions in the mortgagee, without some further act by the mort- 
 gagor.] 
 
292 Adams's doctrine of equity. 
 
 Under this head are included costs fairly incurred in 
 defending the title to the estate, in keeping the property 
 in necessary repair, in procuring a renewal of leasehold 
 interests, and so forth ; but not the costs of mere im- 
 provements, 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 horn, 
 fide sale, with power to repurchase, there is no equity 
 to interfere. (cZ) 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 re- 
 ceipt of the rents, demands and receives interest for his 
 purchase-money, (e)^ 
 
 (c) Sandon v. Hooper, 6 Bea. 246 ; 14 Law J. 120. 
 
 \d) Davis v. Thomas, 1 R. & M. 506 ; Williams v. Owen, 10 Sim. 
 386; Reversed, 12 Law J. 207; Bulwer v. Astley, 1 Ph. 422; Belcher 
 V. Varden, 2 Coll. 162. 
 
 (e) Maxwell v. Mountacute, Pre. Cha. 526. 
 
 ^ See post, note to page 118. 
 
 ^ 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, the debtor will be entitled 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; Whittickv. 
 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; Kunklev. 
 Wolfersberger, 6 Watts, 126 ; Johnson's Ex'rs v. Clark, 5 Arkansas, 
 321; McDonald v. McLeod, 1 Ired. Eq. 221; Randall v. Phillips, 3 
 Mason, 378 ; McLaurin v. Wright, 2 Ired. Oh. 94 ; Hudson v. Isbell, 
 
 5 Stew. & Port. 67 ; Murphy v. Trigg, 1 Monr. 72 ; Lewis v. Robards, 
 3 Monr. 406 ; Blair v. Bass, 4 Blackf. 539 ; Delahay v. MoConnel, 4 
 Scam. 156 ; [Sellers v. Stalcup, 7 Ired. Eq. 13 ; Hinson v. Partee, 11 
 Humph. 587 ; Bank of Westminster v. Whyte, 1 Maryl. Ch. 536 ; 
 
PEKFECT AND IMPERFECT MORTGAGES. 293 
 
 If the character of a security is once impressed on the 
 *conveyance, it is a rule never departed fron:i, 
 that no contemporaneous stipulation can clog '- -■ 
 
 Conner v. Banks, 18 Alab. 42 ; Hovey v. Holcomb, 11 Illin. 660 ; 
 Carter v. Carter, 5 Texas, 93; Eussell's App. 15 Penn. St. 322.] But 
 see Thomas v. McCormack, 9 Dana, 108; Streator v. Jones, 1 Mur. 
 449 ; Thompson t. Patton, 5 Litt. 74 ; Bryant v. Crosby, 36 Maine, 
 562; Brown v. Carson, 1 Busbee Eq. 283. But the proof in such case 
 must be clear, strong, and satisfactory, especially against an answer deny- 
 ing the facts. English v. Lane, 1 Porter, 328 ; Conwell v. Evill, 4 
 Blackf. 67; Scott v. Britton, 2 Yerg. 215; May v. Eastin, 2 Porter, 
 414; Lane V. Dickerson, 10 Yerg. 373; [Elliott v. Maxwell, 7 Ired. 
 Eq. 246 ; Chapman v. Hughes, 14 Alab. 218 ; Arnold v. Mattison, 3 
 Kich. Eq. 153.. See the American note to Thornbrough v. Baker, 2 
 Lead. Cas. Eq. part ii, page 431, 1st Am. Ed. ; and to Woollam v. 
 Hearn, Id. part i, page 561, where the question of the admissibility of 
 parol evidence, in such case, is discussed at large, and placed upon its 
 true ground, — the establishment of an equity of redemption in the grantor, 
 and not the creation of a parol defeasance. 
 
 On the same principle, equity leans towards considering an absolute 
 deed with an agreement for reconveyance on certain conditions, as a 
 mortgage and not a conditional sale. Parol evidence of all the material 
 facts will be admitted, and if it appear to have been really intended as 
 a security for money, it will be decreed a mortgage. Great inadequacy 
 of consideration tends strongly to establish such a conclusion ; and the 
 fact that the agreement for reconveyance contains no promise by the 
 mortgagee to repay the money, and that no persoual security is taken, will 
 not disprove it. Kussell v. Southard, 12 How. U. S. 139; McLaughlin 
 V. Shepherd, 32 Maine, 143; Turnipseed v. Cunningham, 16 Alab. 
 501 ; Poindexter v. McCannon, 1 Dev. Eq. 377 ; Whitney v. French, 
 25 Verm. 663; Cross v. Hepner, 7 Ind. 359; Kerr v. G-ilmore, 
 6 Watts, 405; Brown v. Nickle, 6 Barr, 390. But a conditional 
 sale will unquestionably be supported, where the intention of the 
 parties is clear. Conway v. Alexander, 7 Cranch, 218; cases cited, 
 note to Thornbrough v. Baker, ut supr. p. 438 ; Forkner v. Stuart, 6 
 Gratt. 197; Yasser v. Vasser, 23 Miss. (Cushm.) 378; Gait v. Jackson, 
 9 Geo. 151 ; 4 Kent. 144. The test of the distinction is said to be 
 whether the relation of debtor and creditor in fact subsisted between the 
 parties. See 4 Kent, 144, note.] 
 
294 Adams's doctrine of equity. 
 
 the right of redemption, or entitle the creditor to more 
 than repayment of his principal, interest, and costs. 
 This rule is expressed by the maxim that "Once a mort- 
 gagee always a mortgagee :" and stipulations repugnant 
 to this maxim have been frequently set aside.^ Such, 
 for example, are agreements for restricting the right of 
 redemption to a limited time,(/) for restricting it tea 
 particular line of heirs, ((/) for entitling the mortgagee 
 
 (/) Newcomb v. Bonhain, 1 Vern. 7. 
 
 {g) Howard v. Harris, 2 Ch. Ca. 147. [See Johnston v. Gray, 16 
 Serg. & R. 361.J 
 
 * This is the universal rule in equity, and no agreement in a mortgage 
 to change it into an absolute conveyance upon any condition or event 
 whatever will be allowed to prevail. Clark v. Henry, 2 Cow. 324; Whee- 
 land V. Swartz, 1 Yeates, 579 ; Johnston v. Gray, 16 S. & R. 361. See 
 also, Bloodgood v. Zeily, 2 Cai. Ca. 124 ; Stoever v. Stoever, 9 S. & E. 
 434; Wharf V. Howell, 5 Binn. 499; Cooper v. Whitney, 3 Hill, 95; 
 Palmer v. Gruernsey, 7 Wend. 248 ; Nugent v. Riley, 1 Mete. 117; Dey 
 V. Dunham, 2 John. Ch. R. 182 ; 15 John. 555 ; Hiester v. Madeira, 3 
 W. & S. 384; [Rogan v. Walker, 1 Wise. 527; Woods v. Wallace, 22 
 Penn. St. 171; Locke v. Palmer, 26 Ala. 312. Although in the writ- 
 ing creating an equitable mortgage, the time of redemption is limited, 
 yet such limitation has no effect on the right to redeem. Once a inort- 
 gage always a mortgage. Stover v. Bounds, 1 Ohio St. 107. See also note 
 to Thornbrough v. Baker, 2 Lead. Cas. Eq. p. ii, 444, 1st Am. Ed. The 
 purchase of the equity of redemption by a mortgagee is viewed with great 
 disfavor in equity, and will be avoided, for constructive fraud or uncon- 
 scientious advantage: Russell v. Southard, 12 How. U. S. 139; Piatt 
 V. McClure, 3 Wood. & Min. 151 ; note to Thornbrough v. Baker, ut 
 sup. ; but if perfectly fair it will be sustained. Sheckell v. Hopkins, 2 
 Maryl. Ch. 89; McKinstry v. Conly, 12 Alab. 678; Torill v. Skinner, 
 1 Pick. 213. Such a purchase will generally create a merger of the 
 mortgage. Jennings's Lessee v. Wood, 20 Ohio, 261 ; Bailey v. Eich- 
 ardson, 9 Hare, 734. But this may be prevented by taking the convey- 
 anoe of the equity of redemption in the name of a trustee, with a decla- 
 ration of the intention to that effect. Bailey v. Richardson, 9 Hare, 
 734. And equity will, in general, relieve against such merger, if neces- 
 sary. Slocum V. Catlin, 22 Verm. 137.] 
 
PERFECT AND IMPERFECT MORTGAGES. 295 
 
 after default to purchase at a specific sum, (A) for con- 
 verting arrears 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, (/«) or for allowing him, when in possession 
 under a West Indian mortgage, a like percentage as con- 
 signee of the produce. There is a different, and appa- 
 rently exceptional, rule in favor of a West Indian mort- 
 gagee out of possession. And he is allowed to insist on 
 being consignee of the produce, with the usual percent- 
 age 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 com- 
 menced. 
 
 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 fore- 
 closure or of redemption is pending, if the mortgagor 
 shall appear and become defendant in the action, and 
 shall *pay to the mortgagee, or- on his refusal, 
 shall bring into Court the principal, interest, ■- J 
 and costs, the Court of law may discharge him from the 
 mortgage, and may compel the mortgagee to reconvey. 
 By the same statute it is enacted, that where a bill of 
 
 (A) Willett V. Winnell, 1 Vern. 488. 
 
 (i) Blackburn v. Warwich, 2 Y. & C. 92. 
 
 (7e) Davis v. Dendy, 3 Madd. 170 ; Langstaffe v. Fenwick, 10 Ves. 
 405. 
 
 (0 Bunbury v. Winter, 1 Jao. & W. 255 ; Leith v. Irvine, 1 M. & 
 K. 277; Faulkner v. Daniel, 3 Hare, 218. 
 
296 Adams's doctrine of equity. 
 
 foreclosure is filed, the Court of equity may, on the de- 
 fendant's application, and on his admitting the plain- 
 tiff's title, make such order or decree before the hearino' 
 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 suras chargeable are in con- 
 troversy, (m) 
 
 The mortgagor's right to redeem is technically called 
 his " Equity of Redemption," and is treated as a conti- 
 nuance of his old estate, subject to the mortgagee's pledge 
 for repayment.' 
 
 (m) 7 Geo. 2, c. 20 ; Bastard v. Clarke, 7 Ves. 489 ; Praed v. Hull, 
 1 S. & S. 331 ; Piggin v. Cheatham, 2 Hare, 80 ; Keeves v. Glaston- 
 bury Canal Company, 14 Sim. 351. 
 
 ' Contracts made with the mortgagor to lessen or embarrass the right 
 of redemption, are regarded with jealousy. Holridge v. Gillespie, 2 
 John. Ch. R. 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. R. 25. [But a contract not to prefer a bill to redeem within 
 a limited time is good. Such a contract, however, with a further stipu- 
 lation that at the expiration of the time stipulated, there should be a 
 foreclosure, unless the debt were paid, is void, or at least voidable. Dan- 
 iels V. Mowry, 1 Ehode Island, 151 ; see, however. Stover v. Bounds, 
 1 Ohio St. 107.] A Court of equity will restrain a mortgagee from pro- 
 ceeding 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 satisfaction of the debt. Tice v. Annin, 2 John. Ch. E. 
 125. As a general rule, no person can come into a Court of equity for 
 a redemption, 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 executors, adminis- 
 trators, heirs, and assigns, see Smith v. Manning's Ex'rs, 9 Mass. Kep. 
 422 ; Wilkins v. Sears, 4 Monr. 347 ; Douglass v. Sherman, 2 Paige, 
 358 ; Skinner v. Miller, 5 Litt. 85 ; Bell v. Mayor of New York, 10 
 Paige, 49 ; Merriam v. Barton, 14 Verm. 501 ; Sheldon v. Bird, 2 
 
PERFECT AND IMPERFECT MORTGAGES. 297 
 
 It therefore remains subject to the ordinary incidents 
 of the estate ; it passes in the same course of devolu- 
 tion ; it may be devised, settled, or conveyed in the same 
 way ; or may be transferred to a new claimant by mere 
 length of enjoyment. (92) 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 mort- 
 gagor, they will be entitled to redeem successively ac- 
 cording to their priorities. Where the mortgagor's es- 
 tate has altogether 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. (0) 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 escheat at law, the lord is not entitled ; but L J 
 if the mortgage be for a term only, so that a reversion 
 
 (re) Cholmondely v. Clinton, 4 Bligh, 0. S. 1 ; 3 & 4 Wm. 4, c. 27, 
 s. 24. 
 (0) Supra. 
 
 Root, 509 ; Craik v. Clark, 2 Hay. 22. By judgment creditors, see 
 Hitt Y. Holliday, 2 Litt. 332 ; Dabney v. Green, 4 Hen. & Munf. 101; 
 Bigelow V. Willson, 1 Pickering, 485 ; and by subsequent incumbrancers, 
 see Burnet v. Denniston, 5 John. Ch. E. 35 ; Cooper v. Martin, 1 Dana, 
 25 ; Brown v. Worcester Bank, 8 Meto. 47 ; Watt v. Watt, 2 Barb. 
 Ch. K 371. 
 
 [He who redeems must pay the whole debt : Adams v. Brown, 7 
 Cush. 220 ; though the debt secured, or part of it, has become separated 
 from the mortgage by becoming the property of a different person : John- 
 son V. Candage, 31 Maine, 28 ; or has become barred by the statute. 
 Balch V. Onion, 4 Cush. 559.] 
 
298 ADAMS'S DOCTRINE OF EQUITY. 
 
 is left which may escheat at law, the incidental equity 
 will pass with it. (oo) 
 
 Another result of the principle which treats the equity 
 of redemption as a continuance of the old estate, is that 
 so long as the mortgagor is left in possession, he is con- 
 sidered to hold in respect of his ownership.' The ordi- 
 
 (oo) Burgess v. Wheate, 1 Eden, 177 ; Downe v. Morris, 3 Hare, 
 394. 
 
 1 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. Gale, 7 Pick. 
 159 ; Groton v. Roxborough, 6 Mass. 50 ; Hitchcock v. Harrington, 6 
 John. 295 ; White v. Whitney, 3 Met. 81 ; [Norwich v. Hubbard, 22 
 Conn. 587 ; Whitney v. French, 25 Verm. 663 ; Johnson v. Brown, 
 11 Foster, 405. A conveyance* of the land by the mortgagee, before 
 entry, without a transfer of the debt, passes no interest or title in the 
 land. Smith v. Smith, 15 N. H. 55.] 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 E. 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. Eunyan v. Mersereau, 11 John. 
 534 ; 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 ; Frpthingham v. 
 McKusick, 24 Maine, 403 ; [Covell v. Dolloff, 31 Maine, 104;] Hen- 
 shaw V. Wells, 9 Humph. 568 ; 4 Kent Comm. 160. [In most of the 
 United States, an equity of redemption is subject to dower, and liable 
 to sale on execution. See 4 Kent Comm. 161. 
 
 Though a mortgagor in possession is thus treated in most respects as 
 owner, yet he may be restrained by injunction from such acts of waste 
 as will impair the value of the security. Cooper v. Davis, 15 Conn. 556; 
 Brady v. Waldron, 2 John. Ch. 148. Or an action will lie. Van Pelt 
 V. McG-raw, 4 Comst. 110 ; see Langdon v. Paul, 22 Verm. 205; though 
 see 4 Kent Comm. 161. 
 
 The owner of the equity of redemption is liable for the taxes, before 
 possession by the mortgagee. Hence, if he buys at a sale of the land 
 
PERFECT AND IMPERFECT MORTGAGES. 299 
 
 nary practice now is, that he should be so left in posses- 
 sion, and that the mortgagee should receive regular 
 payments of interest, and should be entitled to call for 
 his principal at six months' notice. If there be an ex- 
 press agreement that the mortgagor shall have posses- 
 sion for a specified period, he is a termor for that period 
 at law if there be no express agreement, 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 character. He can- 
 not, therefore, be made accountable for bygone rents. (25)' 
 But if the security be insufficient he may be restrained, 
 at the instance of the mortgagee, from cutting timber on 
 the mortgaged premises. (§) If the possession of th&- 
 
 (p) Ex parte Wilson, 2 Ves. & B. 252. 
 Iq) King V. Smith, 2 Hare, 239. 
 
 for taxes, it will be considered merely a form of payment, and he will 
 acquire no greater title than he had before. Frye v. Bank of Illinois, 
 11 IlUn. 367; Ralston v. Hughes, 13 Id. 469. 
 
 In Maine, where mortgaged lands are taxed in the name of the mort- 
 gagee, no title passes on a sale therefor. Coombs v. Warren, 34 Maine, 
 89. 
 
 A mortgagee not having been in possession recovering in ejectment 
 against an occupant, cannot recover for mesne profits prior to his entry 
 under the judgment in ejectment. Litchfield v. Ready, 5 Exch. R, 939. 
 Nor, prior to a judgment in ejectment, or entry, can he maintain trespass. 
 Turner v. Cameron's, &c., Co. 5 Exch. 932. ~ See Northampton Paper 
 Mills V. Ames, 8 Met. 1.] 
 
 ' [The mortgagor may authorize a second mortgagee to collect the 
 rents, and apply them as payments on his mortgage, and the Court will 
 not restrain him, on application of the first mortgagee, even after the 
 filing of a bill for foreclosure. Best v. Schermier, 2 Halst. Ch. 154.] 
 
300 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 mortgagee, 
 or receipt or demand of principal or interest, was to 
 raise a presumption that the debt was satisfied. And 
 by the present law it is expressly declared, that a mort- 
 gagee out of possession shall not proceed, either at law 
 or in equity, to recover the land, except within twenty 
 ^ _ years after he last had possession, *or after the 
 ^ -I last payment of any principal or interest, (r)^ 
 
 (?■) Christophers v. Sparke, 2 J. & W. 223 ; 3 & 4 Wm. 4, c. 27, bs. 
 2, 3 ; 7 Wm. 4 & 1 Vict. c. 28 ; 8 & 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. Boss v. Norwell, 1 Wash. Va. 19. The possession to bar 
 the equity of redemption must be actual, quiet, and uninterrupted pos- 
 session for twenty years, or a period of time sufficient to toll the right 
 of entry at law. Moore v. Cable, 1 Johns. Ch. E. 385; Demarest v. 
 Wynkoop, 3 Id. 129 ; Slee v. Manhattan Co. 1 Paige, 48 ; Penwick v. 
 Macey, 1 Dana, 279; [Morgan v. Morgan, 10 Geo. 297; Cromwell r. 
 Bank of Pittsburg, 2 Wallace, Jr. 569 ; Blithe v. Dwinal, 35 Maine, 
 556. But so long as the mortgagee recognizes the mortgage in anyway, 
 the presumption will not begin to run. Morgan v. Morgan, ut supr. 
 It is not so much the possession, as the nature of the possession, which 
 operates in equity as a bar to redemption. Time does not begin to run 
 against the right to redeem so long as the mortgagee continues to hold 
 as such. Kichmond v. Aiken, 25 Verm. 324. In a suit by the mort- 
 gagor to redeem, the Statute of Limitations will not avail the mort- 
 gagee, unless he has been in actual possession of the land. In Mis- 
 souri, payment of taxes on wild land is not equivalent to possessioD. 
 Bollinger v. Chouteau, 20' Mo. 89. So where a mortgage was given 
 on wild land, of which neither party was in possession, there being evi» 
 dence that the debts were unpaid, the lapse of thirty years was held no 
 bar to a foreclosure. Chouteau v. Burlando, 20 Mo. 482.] 
 
 In some of the States, fifteen years' possession, where no statute dis- 
 abilities or special circumstances equivalent thereto' exist, will bar an 
 
PERFECT AND IMPERFECT MORTGAGES. 301 
 
 The same principle which treats the mortgagor's equity 
 as the actual ownership, necessarily involves the conclu- 
 sion, 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 afiect his right. He is not bound 
 to reconvey 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 mort- 
 gage 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, never- 
 theless, defray the expense, (if) 
 
 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 redemption is asked 
 against the lord, there appears to be some question 
 
 (s) Brown v. Lockhart, 10 Sim. 421 ; Richards v. Platel, Cr. & P. 
 79 ; Postlethwaite v. Bljthe, 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. 
 
 eq[uity of redemption. Skinner v. Smith, 1 Day, 124; Crittenden v. 
 Brainard, 2 Root, 485 ; [Richmond v. Aiken, 25 Verm. 324 ; see Ro- 
 binson V. Fife, 3 Ohio N. S. 551. 
 
 On the other hand, after the lapse of twenty years, the mortgagor 
 being in possession and no interest paid, there is a presumption of satis- 
 faction of the mortgage debt. Boyd v. Harris, 2 Maryl. Ch. 210 ; Ro- 
 berts V. Welch, 8 Ired. Eq. 287 ; Ayres v. Waite, 10 Cush. 72. Other- 
 wise where the possession has been in the mortgagee. Crocker v. Jewell, 
 31 Maine, 306. See Martin v. Jackson, 27 Penn. St. 504.] 
 
302 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 i{, 
 yet that he shall be bound by an equity of redemption, 
 whether he were privy or not. {uy The distinction, 
 however, would probably be difficult to sustain. 
 
 *The statutory remedy against escheat in the 
 L -I case of a trustee, has already been considered, 
 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 event of a trustee being out of the 
 jurisdiction, of doubts as to survivorship or heirship, and 
 of a refusal to convey when properly required, (v) The 
 provisions with respect to lunacy and infancy, are ex- 
 pressly made applicable to mortgages also. The appli- 
 cability of the other provisions has been a subject 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 mortgagee who has died with- 
 out having been in possession, and to whose executor or 
 administrator the mortgage-money has been paid, and 
 expressly confines the operation of the former acts to 
 that particular case, [w] The enactments of the statute 
 
 (u) Burgess v. Wheate, 1 Eden, 177 ; Attorney-General v. Duke of 
 Leeds, 2 M. & K. 343. 
 
 (?;) 8 & 4 Wm. 4, c. 23 ; 11 Geo. 4 & 1 Wm. 4, c. 60, supra, 
 (w)) 1 & 2 Vict. c. 69. 
 
 ^ [In most of the United States, it is provided by statute, that on the 
 escheat of land, it shall be held upon the same trusts and under the 
 same incumbrances as before. 4 Kent's Com. 425 ; 1 Greenleaf s Cruise, 
 417 ; note to Hill on Trustees, 2 Am. ed. 62.] 
 
PEKPECT AND IMPERFECT MORTGAGES. 303 
 
 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 administrator, and the devisee 
 or heir or other real representative, or any of the devi- 
 sees or heirs, or real representatives, of such mortgagee 
 shall be out of the jurisdiction, 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 represen- 
 tative 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 p^-, ■, i,-, 
 conveyance shall have been tendered for his ex- 
 ecution by, or by an agent duly authorized by, any per- 
 son 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 ap- 
 point for that purpose, in the place of the devisee, heir, 
 or representative (whether such devisee, heir, or repre- 
 sentative 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 men- 
 tioned in the place of a trustee or the heir of a trustee, 
 and every such conveyance shall be as effectual as if 
 
304 Adams's doctrine of equitt. 
 
 such devisee or heir or represeritative 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 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.(a3) 
 
 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 debt, {y) ' 
 
 If the mortgagee takes possession of the estate, he is 
 treated in equity as holding in respect of his security, 
 and must deal with the estate in conformity with that 
 character. He is bound therefore to keep the premises 
 
 (x) Re Goddard, 1 M. & K. 25 ; Prendergast v. Eyre, LI. & G. 181; 
 Ex parte Whitton, 1 K. 279 ; Green v. Holden, 1 Bea. 207. 
 
 Qj) Schoole V. Sail, 1 Seh. & L. 176 ; Drummond v. Pigou, 2 M. & 
 K. 168 ; Lockhart v. Hardy, 9 Bea. 349. 
 
 ' The mortgagee may enter or maintain ejectment. Hughes v. Ed- 
 wards, 9 Wheaton, 489 ; Dunkley v. Van Buren, 3 John. Ch. E. 380 
 Cullum V. Emanuel, 1 Ala. 22 ; [Pluck v. Replogle, 13 Penn. St. 406 
 Smith V. Schuler, 12 Serg. & R. 240 ; Martin v. Jackson, 27 Penn. St. 
 504 ; Clay v. Wren, 34 Maine, 187 ; Wilhelm v. Lee, 2 Maryl. Ch 
 322 ; Brown v. Stewart, 1 Maryl. Ch. 87 ; Wheeler v. Bates, 1 Foster 
 (N. H.), 460. See, in Vermont, under the statute of that State, 
 Pierce v. Brown, 24 Verm. 165. The mortgagee is entitled to pursue 
 all his remedies at once. Brown v. Stewart, ut sup. A mere entry 
 for a particular purpose will not, however, be deemed to he a taking 
 possession. Great Falls Co. v. Worster, 15 N. H. 412.] 
 
PERFECT AND IMPERFECT MORTGAGES. 305 
 
 in necessary *repair, but is not bound to spend 
 more than is strictly necessary. He must ac- ^ -I 
 count 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 character, as, for example, if it be the presentation 
 to a vacant living, the mortgagor must have it as the 
 real owner. (z)i 
 
 (z) Mackensie v. Kobinson, 3 Atk. 559. 
 
 ' A mortgagee in possession is accountable for the profits really made, 
 and no further, except in case of gross negligence : Bainbridge v. Owen, 
 2 J. J. Marsh. 465 ; Van Buren v. Olmstead, 5 Paige, 9 ; Bell v. The 
 Mayor, &c., of New York, 10 Paige, 49 ; Anthony v. Eogers, 20 Mo. 
 281; and is not, in general, chargeable with interest on rents. Brecken- 
 ridge v. Brooks, 2 A. K. Marsh. 339. [But see Shaeffer v. Chambers, 
 2 Halst. Ch. 548 ; Boston Iron Co. v. King, 2 Cush. 400 ; as to where 
 rests will be allowed.] Rents received by a mortgagee should be applied 
 to keep down the interest. Saunders v. Frost, 5 Pickering, 260 ; 
 [McConnel v. Holobush, 11 111. 61; Moore v. Cable, 1 John. Ch. 885; 
 Bell V. New York, 10 Paige, 49 ; Bawling v. Stewart, 1 Bland, 22.] 
 But a mortgagee is not entitled to compensation for his trouble in manag- 
 ing the estate, whether the parties have agreed to make such allowance 
 or not. Breckenridge v. Brooks, 2 A. K. Marsh. 339. The only re- 
 pairs made by the mortgagee, without the mortgagor's consent, which 
 will be allowed to the mortgagor, are strictly necessary repairs. Bene- 
 ficial expenditures if unnecessary will not be allowed. Quinn v. Brittain, 
 1 Hoff. C. R. 353 ; Hagthorp v. Hook, 1 Gill & J. 270 ; Lowndes v. 
 Chisolm, 2 McCord Ch. 455 ; [McConnell v. Holobush, 11 III. 61 ; 
 Boston Iron Co. v. King, 2 Cush. 400.] 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. Dough- 
 erty V. McColgan, 6 Gill and J. 275. [See Boston Iron Co. v. King, 
 ut sup. Where a mortgagee insures, without contract, and the loss is- 
 paid him, it is not to be deducted from his charges for repairs. White 
 
 20 
 
306 ADAMS'S DOCTKINE OF EQUITY. 
 
 In taking the account of a mortgagee in possession 
 where the rents have exceeded the interest on his mort- 
 gage, 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 ascer- 
 taining on the one hand the aggregate amount of prin- 
 cipal and interest down to the period of redemption, and 
 on the other hand the aggregate amount of rent, down 
 to the same period, and striking a balance of the two 
 amounts. If he is to be charged with interest, the ac- 
 count is taken by making rests from time to time, and 
 striking a 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 
 
 V. Brown, 2 Cush. 412; G-arden v. Ingram, 23 L. J. Ch. 478. On the 
 other hand, as the mortgagor is not bound to insure, the mortgagee can- 
 not charge him with the premiums. Dobson v. Land, 8 Hare, 216. 
 
 A mortgagee by taking possession, assumes the duty of treating the 
 property as a provident owner would treat it. Shaeffer v. Chambers, 2 
 Plalst. Ch. R. 548. If it be a farm, for instance, he is not at Hberty to 
 let it lie untilled, because the house on it, or the house and farm to- 
 gether, were not rented, but must keep it in good ordinary repair, and is 
 bound to good ordinary husbandry. Shaeffer v. Chambers, ut sup. 
 
 So a mortgagee in possession of slaves is bound to exercise reasonable 
 diligence in keeping them engaged in useful employments, so as not only 
 to pay their expenses, but also to obtain a reasonable compensation for 
 their labor. Bennett v. Butterworth, 12 How. U. S. 367. 
 
 So, in general, a mortgagee of personalty in possession, after condi- 
 tion broken, is responsible for ordinary diligence, and liable for ordinary 
 neglect. If the property is destroyed without fault of his, he cannot be 
 held to account for it; but he is accountable for the net profits before 
 its destruction. Covell v. DollofiF, 31 Maine, 104. 
 
 How the account of the rents and profits is to be taken, see Powell v. 
 Williams, 14 Alab. 476 ; Shaeffer v. Chambers, 2 Halst. Ch. 548. 
 
 A mortgagee in possession is liable to an action for waste. Grivens v. 
 McCalmont, 4 Watts, 460.] 
 
PERFECT AND IMPERFECT MORTGAGES. 307 
 
 throughout on the entire principal, and charging interest 
 on the surplus rents. 
 
 In order to authorize the rests, an express direction 
 of the Court is necessary, (a) and the prima facie pre- 
 sumption 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 possession 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 in *arrear at the time ; ^ 
 
 r*1191 
 and he will not in that case become liable to •- -• 
 
 account with rests until both principal and interest have 
 
 been discharged. If he continue in possession after that 
 
 time, annual rests will be decreed for the subsequent 
 
 period. (5) 
 
 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 accounts or otherwise dealing with the 
 property as mortgagee, a presumption arose that the 
 equity was released. And by the present law it is ex- 
 pressly 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 written 
 acknowledgment of his right, signed by the mortgagee, 
 has been given to him or his agent, (c) 
 
 The remedy of the mortgagee by taking possession is 
 
 (a) Webber v. Hunt, 1 Mad. 13. 
 
 (&) Quarrell v. Beckford, 1 Mad. 269 ; Wilson v. Metcalf, 1 Bus. 
 530; Wilson v. Cluer, 3 Bea. 136; Horlock v. Smith, 1 Coll. 287. 
 
 (c) Hodle V. Healey, 6 Mad. 181 ; Cholmondeley v. Clinton, 4 Bl. 
 b. S. 1 ; 3 & 4 Wm. 4, c. 27, s. 28, supra. 
 
308 ADAMS'S DOCTRINE OF EQUITY. 
 
 practically very inconvenient. Yet if the forfeiture by 
 non-payment had been taken away, and not replaced by 
 any substitute, it would have been the only one attain- 
 able under his security. In order to remedy this objec- 
 tion, 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 mortgagor's right is destroyed. The fore- 
 closure, however, may be opened and the right of redemp- 
 tion revived, if the decree appear to have been unfairly 
 obtained, or if the mortgagee treat the loan as still con- 
 tinuing; as, for example, if he proceed against the mort- 
 gagor 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 col- 
 
 ^ lateral securities, although the sale *may have 
 r*1201 
 L -• been bona fide made for less than the amount 
 
 due.(c?) 
 
 The effect of foreclosure is also produced by the dis- 
 missal 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. 
 
 It must be observed, that the right of the mortgagee 
 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 
 
 {d) Tooke V. Hartley, 2 B. C. C. 125; Perry v. Barker, 8 Ves. 527; 
 13 Ves. 198 ; Lookhart v. Hardy, 9 Bea. 349. 
 (e) Mackensie v. Robinson, 3 Atk. 559. 
 
PERFECT AND IMPERFECT MORTGAGES. 309 
 
 a dry reversion, incapable of producing present profit, (/) 
 the mortgagee is entitled to a sale, in respect of the spe- 
 cial character of the mortgaged property, and its inca- 
 pacity of constituting, except by a sale, a practical secu- 
 rity 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 jurisdic- 
 tion, 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 there- 
 fore if the personalty be insufficient, the mortgaged estate 
 may be sold by consent of the mortgagee, and the pro- 
 duce applied, first in discharge of the mortgage, and then 
 in payment of the other debts, (/i) or if the estate has 
 *been vested in an infant, a sale may be directed r-^..^-.-. 
 as indispensable for his benefit, lest the estate '- ^ 
 should be foreclosed and lost.(i) In Ireland, and some 
 of the American Courts, a different rule prevails, and 
 the mortgagee may in all cases require a sale. (A;)' If an 
 
 (/) How V. Vigues, 15 Viner's Abr. 475. 
 (g) Tucker v. Wilson, 1 P. W. 261. 
 (h) Daniel v. Skipwith, 2 B. C. C. 155. 
 
 (i) Mondey v. Monday, 1 Ves. & B. 223 ; Brookfield v. Bradley, Jac. 
 634; Davis v. Dowding, 2 K. 245. 
 {k) 2 Story on Eq. Jur. s. 1025. 
 
 ' Brinkerhoff v. Thallhimer, 2 John. Ch. K. 486; Mills v. Dennis, 
 3 John. Ch. K. 369. 
 
 In many of the States the ancient practice of procuring a strict fore- 
 closure is not adopted. Nelson v. Carrington, 4 Munf. 332 ; Rodgers v. 
 Jones, 1 McCord's Ch. 221 ; Downing v. Palmateer, 1 Monr. 66 ; Pan- 
 nell V. Farmer's B'k, 7 Har. & J. 202; Humes v. Shelly, 1 Ten. Rep. 
 
310 ADAMS'S DOCTRINE OF EQUITY. 
 
 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.* 
 
 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 payment as 
 a general creditor, and retaining in the meantime his 
 power to foreclose. For the principle of the Bankrupt 
 Law, which aims at distributing a debtor's property 
 among all his creditors, Avill not permit a creditor to 
 
 79 ; Hord v. James, Id. 201 ; David v. Grahame, 2 Har. & Gr. 94; see 
 Henderson v. Lowry, 5 Yerg. R. 240 ; Smith v. Bailey, 1 Shaw, Verm. 
 R. 163; N. S. Id. 267; Lockwood v. Lookwood, 1 Day, 295; Baylies 
 V. Bussey, 5 Greenleaf, 153 ; Gilman v. Hidden, 5 N. H. 81 ; Erskine 
 V. Townsend, 2 Mass. Eep. 493 ; 5 Ham. 554. As to the time in whioli 
 the mortgagor may redeem, see ante, n. a, to p. 114-115. [A foreclosure 
 may be obtained for non-payment of interest only, where the principal is 
 payable at a distant day. Edwards v. Martin, 25 L. J. Ch. 284.] 
 
 The practice in the New England States seems to be similar to that 
 of the English Courts. Mix v. Hotchkiss, 14 Conn. R. 32; but see 
 Gibson V. Bailey, 9 N. H. 168 ; and in North Carolina, see Spiller v. 
 Spiller, 1 Hayw. 482 ; [see in Maine, Chamberlain v. Gardner, 88 Maine, 
 548.] Time to redeem in case of strict foreclosure will be allowed accord- 
 ing to circumstances. Ferine v. Dunn, 4 John. Ch. R. 140. In Penn- 
 sylvania, a mortgage may be foreclosed by scire facias. [So in Illinois, 
 but the statutory provision only extends to mortgages to secure debts, not 
 to those to secure the delivery of specific articles of property, or to secure 
 the performance of other acts. McCumber v. Gilman, 18 111. 542.] 
 And in Missouri, by petition and summons. 
 
 1 [Carradine v. O'Connor, 21 Alab. 573 ; Walton v. Cody, 1 Wise. 420.] 
 A power to mortgage includes a power to execute a mortgage containing 
 a power to the mortagee to sell the premises in default of payment, it 
 being one of the usual and lawful remedies given to a mortgagee, known 
 to the law and regulated by statute. Wilson v. Troup, 7 John. Ch. K- 
 25 ; 2 Cowen, 195, S. C. See Russell v. Plaice, 18 Beav. 21. 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. Bennett, 1 Cai. Ca. E. 1. 
 
PERFECT AND IMPERFECT MORTGAGES. 311 
 
 « 
 
 keep back part of that property, and at the same time 
 to share in the distribution of the rest. The mortgagee 
 therefore must elect between 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 insuffi- 
 cient 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 mort- 
 gagee, shall take an account of the moneys due ; shall 
 cause the mortgaged premises to be sold, and the pro- 
 duce 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 
 *convey the legal estate to the mortgagee, and 
 specify a day of forfeiture at law, there are other L -I 
 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 con- 
 tract to convey ; 2. Equitable mortgages by deposit of 
 title deeds unaccompanied by a written contract ; 3. 
 
 (0 General Order in Bankruptcy of 8th March, 1794; 1 Mont. & 
 Ayrton's Bankruptcy, 243 ; Greenwood v. Taylor, 1 K. & M. 185 ; Ma- 
 son V. Bogg, 2 M. & C. 443 : Davis v. Dowding, 2 K. 245. 
 
 ^ [Where a mortgagor becomes bankrupt, and a deficiency of his pro- 
 perty is apprehended, and a prior mortgagee obtains the appointment of 
 a receiver to collect the rents, such mortgagee acquires a lien upon the 
 rents, and upon motion, they may be applied to the mortgage debt. 
 Post T. Dorr, 4 Edw. Ch. 412.] 
 
312 Adams's doctrine of equity. 
 
 « 
 
 Welsh mortgages; 4. Trust deeds in the nature of mort- 
 gage ; 5. The equitable lien of a vendor or purchaser of 
 real estate ; 6. Equitable y?. /a. and elegit; and 7. Judg- 
 ment charges under 1 and 2 Vict. c. 110, s. 13 and 14. 
 
 The first class of imperfect mortgages are, mortgages 
 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 trans- 
 ferred to the mortgagee. He is therefore disabled from 
 obtaining possession at law, and is entitled in conse- 
 quence of that disability, to have a receiver appointed 
 in equity, by whom the rents of the estate may be re- 
 ceived, and applied in satisfaction of his mortgage. A 
 receiver, however, will not be appointed, if a prior legal 
 incumbrancer is in possession, unless the applicant will 
 pay off 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 mortgagee cannot have a receiver, but must 
 take possession under his legal title, (m) 
 
 It should be observed that where an equity of redemp- 
 tion 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 unincumbered, he is liable 
 by statute to forfeit his equity, and to be ipso facto fore- 
 closed in favor of the second mortgagee, (n) By the 
 r*l95?l same act, it is *enacted that if a person, bound 
 L -I by judgment, statute, or recognizance, borrow 
 money on mortgage, without giving notice thereof in 
 writing, he must discharge the judgment, statute, or 
 recognizance, within six months after requisition by the 
 
 (m) Borney v. Sewell, 1 Jac. & W. 627 ; Brookes y. Greathed, 1 
 Jao. & W. 176. 
 
 00 4 & 5 Wm. 3, c. 16 ; Stafford v. Selby, 2 Vern, 589. 
 
PERFECT AND IMPERFECT MORTGAGES. 313 
 
 mortgagee, and that in default in so doing, he shall be 
 ipso facto foreclosed. 
 
 Mortgages of the kind just considered may be properly 
 called " mortgages of an equity ;" there are also other 
 imperfect mortgages, which may be termed " equitable 
 mortgages," consisting of mortgages by imperfect con- 
 veyances, or by an uncompleted contract to convey. 
 Mortgages of this latter class entitle the mortgagee to 
 claim specific performance and the execution of a legal 
 mortgage. In the meantime, they stand on the same 
 footing as mortgages of an equity, and entitle the mort- 
 gagee to a receiver of the rents.^ 
 
 The second class of imperfect mortgages are equitable 
 mortgages by deposit of title deeds, unaccompanied by a 
 written contract.^ 
 
 ' A Court of equity will often pronounce that to be an equitable 
 mortgage, which at law would be considered a conditional sale, and if a 
 conveyance resolves itself into a security for the performance or non- 
 performance of any act, it is a mortgage, whatever be its form. Flagg 
 V. Mann, 2 Sum. 486. [It has been held in several of the United 
 States, that any agreement in writing to give a mortgage, or imperfect 
 attempt to create a mortgage, or to appropriate specific property in dis- 
 charge of a particular debt, will be treated in equity as a mortgage, or a 
 specific lien, which will have precedence of subsequent judgment credi- 
 tors. Eead v. Simons, 2 Desaus. 552 ; Welsh v. Usher, 2 Hill Eq. 167 ; 
 Dow V. Ker, 1 Speer Eq. 414 ; In the matter of Howe, 1 Paige, 125 ; 
 Bank of Muskingum v. Carpenter, 7 Ohio, 21 ; Lake v. Doud, 10 Ohio, 
 415 ; see Brown v. Nickle, 6 Penn. St. Eep. 390 ; Locke v. Palmer, 
 26 Alab. 312 ; note to Russel v. Russel, 1 Lead. Gas. Eq. 1st Am. ed. 
 467. This is a question, however, which depends to some extent upon 
 the policy of the recording acts. 
 
 There can be no mortgage of property not yet in existence, at law, and 
 in equity an instrument of such a character will be regarded as a mere 
 contract, giving no right over the property when it is acquired, and so 
 far as it entitles the mortgagee to specific performance, is subordinate 
 to intervening liens. Otis v. Sill, 8 Barb. S. C. 102.] 
 
 '' Equitable mortgages by deposit have been sustained in Rockwell v. 
 
314 ADAMS'S DOCTRINE OF EQUITY. 
 
 The prima fade effect of such 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 nature 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 th^ 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 this latter point 
 L -J seems unsatisfactory ; for although there may be 
 a suflBcient ground to presume that a security was 
 meant, yet the deposit might effectuate that object by 
 embarrassing the debtor without necessarily charging 
 the land. The doctrine was several times commented 
 on by Lord Eldon, who admitted that it was estabhshed 
 
 (o) Eussel V. Eussel, 1 B. C. C. 269 ; Ex parte Whitbread, 19 Ves. 
 209 ; Ex parte Hooper, 1 Meriv. 7 ; Parker v. Housefield, 2 M. & K. 
 419. 
 
 Hobby, 2 Sandf. Ch. 9 ; Williams v. Stratton, 10 Smed. & M. 418 ; 
 [and see Welsh v. Usher, 2 Hill Eq. 170.] In Pennsylvania, it has 
 been decided that an equitable mortgage by delivery of title deeds, or 
 otherwise hy parol, is not valid. Shitz v. Dieffenbach, 3 Penn. St. 233; 
 [Bowers v. Oyster, 3 Penn. 240 ; Thomas's Appeal, 30 Penn. St. 378. 
 See also Vanmeter v. McFaddin, B. Monr. 435, as to Kentucky.] 
 
PEKFECT AND IMPERFECT MORTGAGES. 315 
 
 by precedent, but said that it ought never to have been 
 so established. 
 
 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 security may be extended 
 to future advances, if they are made under a parol agree- 
 ment 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 required 
 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 pro- 
 bably be sufficient if the intention were proved. But if 
 the deeds are retained by the mortgagor, a parol agree- 
 ment to deposit them is ineffectual, [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. 
 
 But if part be delivered to one creditor, and part to 
 
 {p) Ex parte Whitbread, 19 Ves. 209 ; Ex parte Hooper, 1 Meriv. 
 7. 
 
 (j) Ex parte Coming, 9 Ves. 115 ; Ex parte Whitbread, 19 Ves. 
 209; Ex parte Coombe, 4 Madd. 249. 
 
 ' [The mere fact that the title deeds are in a bond-creditor's posses- 
 sion, is not suflScient evidence by itself of an equitable mortgage in his 
 favor. Chapman v. Chapman, 13 Beav. 308.] 
 
316 ADAMS'S DOCTBilNE OP EQUITY. 
 
 another, there may be much difficulty in considering 
 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, but in order to 
 L J the preparation of a regular mortgage, there seems 
 to be additional difficulty in sustaining it as an equitable 
 mortgage. For the implication 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 mort- 
 gage to be made, the direction will be based, not on an 
 implication of law, but on express parol evidence, ad- 
 mitted in contravention of the Statute of Frauds. The 
 authorities, however, are in favor of the mortgagee's 
 claim, (s) 
 
 The effect of a mortgage by deposit is that the mort- 
 gagee 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 speci- 
 fies no day of payment, and a doubt therefore has ex- 
 isted 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 car- 
 ries 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 al- 
 
 (r) Ex parte Wetherell, 11 Ves. 401 ; Ex parte Pearse, Buck, 525 ; 
 Ex parte Chippendale, 2 M. & A. 299. 
 
 (s) Norris v. Wilkinson, 12 Ves. 192 ; Ex parte Bruce, 1 Kose, 374; 
 Hockley v. Bantock, 1 Euss. 141 ; Keys v. Williams, 3 Y. & C 55. 
 
PERFECT AND IMPERFECT MORTGAGES. 317 
 
 ternative a sale of the estate, seems to be still in 
 doubt. (0 
 
 The third and fourth classes of imperfect mortgages 
 are Welsh mortgages, and trust deeds in the nature of 
 mortgages. 
 
 A Welsh mortgage is a conveyance of an estate re- 
 deemable at any time on payment of principal and inte- 
 rest, 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 perception of the 
 rents, and *that he is not entitled to foreclosure r-.^-, nn-i 
 or sale, nor will his liability to account be deter- 
 mined by the lapse of time, unless he has continued in 
 possession for twenty years after the debt was fully paid 
 and satisfied. («)* 
 
 Trust deeds in the nature of mortgage are mere con- 
 veyances 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 imperfection of 
 these securities, like that of Welsh mortgages, consists 
 in the want of any day of forfeiture, and in the conse- 
 quent absence of a right to foreclosure. The estate 
 
 (0 Paia V. Smith, 2 M. & K. 417; Parker v. Housefield, 2 M. & K. 
 419; Brocklehurst V. Jessop, 7 Sim. 438; Moores v. Clioat, 8 Sim. 
 508, 515, 523; Price v. Carver, 3 M. & C. 157, 161; Lister v. Tur- 
 ner, 5 Hare, 281. 
 
 (u) Yates V. Hambley, 2 Atk. 360 ; Fenwick v. Keed, 1 Meriv. 114 ; 
 Teuton v. Curtis, Younge, 610 ; Balfe y. Lord, 1 Conn. & L. 519. 
 
 ' [In Louisiana, the antichresis, which resembles the Welsh mort- 
 gage, in that the creditor is entitled to take the rents and profits in dis- 
 charge of his debt, but differs, in his being entitled to a decree of sale, 
 is the form of pledge of real estate authorized by the Civil Code. See 
 Livingston v. Story, 11 Peters, S. C. 351. J 
 
318 ADAMS'S DOCTRINE OF EQUITY. 
 
 never vests absolutely in the creditor, and he is placed 
 rather in the position of a trustee, though to some ex- 
 tent for his own benefit, than in that of an independent 
 mortgagee, (w) 
 
 The inconvenience resulting from the want of ability 
 to foreclose, both in the case of Welsh mortgages, and in 
 that of trust deeds, is very great ; and such securities 
 are of comparatively unfrequent occurrence. 
 
 The fifth class of imperfect mortgages is the equitable 
 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 per- 
 son 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 labor or expense, improved or altered the chattel ; 
 2. Where he is bound by law to receive the chattel or to 
 perform the service 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 possession, 
 and therefore, if the possession be abandoned, the lien 
 is gone ; and if there be any agreement to postpone the 
 p, ^ „„-, time of payment, *the same effect follows ; for it 
 L J cannot be supposed that the creditor was in- 
 tended to detain the chattel during the whole period of 
 postponement, (w?) There is also a right at law in the 
 
 (y) Ex parte Pettit, 2 Gl. & J. 47 ; Sampson v. Pattison, 1 Hare, 
 533. 
 
 (w) Smith's Merc. Law, 510, 518 ; Jarm. Byth. 3-13. 
 
 ' [This equitable lien gives the vendor, at least at law, no right to 
 detain the title deeds. Goode v. Burton, 1 Exeh. 189.] 
 
PERFECT AND IMPERFECT MORTGAGES. 319 
 
 nature of lien, entitling the 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 
 payment 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 dif- 
 ferent from a lien at law ; for it operates after the posses- 
 sion 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 perform- 
 ance ; 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 deten- 
 tion of chattels, there is no ground for equitable inter- 
 ference. 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 exist- 
 ence is clear. And it is an established principle of equity, 
 that where a conveyance is made prematurely before 
 payment of the price, the money is a charge on the 
 estate in the hands of the vendee ; and where the money 
 
 (x) Ibid. 486-9, 457-63, 500-9. 
 
320 Adams's doctrine of equitt, 
 
 is paid prematurely *before conveyance, it is, in 
 L -I like manner, a charge on the estate in the hands 
 of the vendor, (y)^ 
 
 (j/) Mackreth v. Symmons, 15 Ves. 329. 
 
 ' In many of the States, the English doctrine seems to be recognized: 
 see Stafford v. Van Eensselaer, 9 Cow. 316; Deibler v. Barwick, 4 
 Blackf. 339; Cox v. Fen wick, 3 Bibb, 183 ; Williams v. Roberts et al. 
 
 5 Ohio, 35 ; Stewart et al. v. Ives et al. 1 Smedes & M. 197 ; Marsh 
 V. Turner, 4 Mo. 253; Thornton v. Knox's Ex'rs, 6 B. Monr, 74; 
 [Muir V. Cross, 10 B. Monr. 277 ;] Tompkins v. Mitchell, 2 Eand. 
 428; [Kyles V. Tait, 6 Gratt. 44;] Dyer v. Martin, 4 Scam. 148; 
 Vandoren v. Todd, 2 Green Ch. 397 (see 3 Green Ch. 251) ; [Herbert 
 V. Soofield, 1 Stockt. N. J. 492 ;] Moreton v. Harrison, 1 Bland, 491 ; 
 Eskridge v. McClure, 2 Yerg. 84 ; Bayley v. Greenleaf, 7 Wheat. 46; 
 Hall's Ex'rs v. Click et al. 5 Ala. 363 ; Barns v. Taylor, 23 Ala. 255. 
 In Pennsylvania, the doctrine is exploded [Kauffelt v. Bower, 7 Serg. 
 
 6 E. 64] ; in Hepburn v. Snyder, 3 Penn. St. 72, 73, the Court say, 
 " Liens upon land are not favored or to be implied; and they are conse- 
 quently to be created by plain terms." And see Zentmyer v. Mittower, 
 5 Penn. St. 403. So in North and South Carolina. Womble v. Battle, 
 3 Ired. Eq. 182; Henderson v. Burton, 3 Id. 259; [Cameron v. Mason, 
 
 7 Ired. Eq. 180 ;] Wragg's Rep. v. Comp. Gen. 2 Desau. 509. So in 
 Massachusetts, the vendor never has a lien on the land for the unpaid 
 purchase-money. Gilman v. Brown, 1 Mason, 191. In other States, 
 the question seems yet to be undecided. 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. 
 As against creditors, or purchasers, 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 ; Har- 
 per V. Williams, 1 Dev. & Batt. Eq. 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. 533 ; Eubank v. Poston, 5 Monr. 285 ; [Kyles 
 v. Tait, 6 Gratt. 44; Kilpatrick v. Kilpatriek, 23 Miss. (Cushm.) 124; 
 Green v. Demoss, 10 Humph. 371 ; Webb v. Robinson, 14 Geo. 216; 
 see note to Mackreth v. Symmons, 1 Lead. Cas. Eq. 241, 1st Am. Ed., 
 where the subject of the vendor's lien is discussed at large.] 
 
PERFECT AND IMPERFECT MORTGAGES. 321 
 
 The lien thus attaching on the estate is obviously 
 useless by way of detainer, and can only be available 
 by way of charge. It is treated, therefore, as a 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 pay- 
 ment. For such postponement, though inconsistent 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.(a)' It is different 
 
 (2) 1 Sug. V. & P. 427. 
 
 (o) Winter v. Anson, 3 Russ. 488. 
 
 ' 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 ; Tompkins v. Mitchell, 2 Eand. 428 ; Campbell v. Baldwin, 
 
 2 Hump. 248 ; Gilman v. Brown, 1 Mason, 192 ; Tiernan v. Beam, 2 
 Ham. 383 j 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 ; Ross v. Whitson, 6 Yerg. 50 ; Mims v. Macon, 
 3 Kelly, 333. [See note to Mackreth v. Symmons, ut sup., where it is 
 stated to be the result of the American authorities, " that the implied 
 lien will be sustained wherever the vendor has taken the personal secu- 
 rity of the vendee only, by whatever kind of instrument it be manifested, 
 and therefore that any note, bond, or covenant, given by the vendee 
 alone, will be considered as intended only to countervail the receipt for 
 the purchase-money contained in the deed, or to show the time and 
 manner in which the payment is to be made, unless there is an express 
 agreement between the parties to waive the equitable lien ; and on the 
 
 21 
 
322 Adams's doctrine of equity. 
 
 if the security be itself the consideration, as, for example, 
 if the conveyance profess to be in consideration of a cove- 
 nant to pay, and not in consideration of actual pay- 
 ment. (6) 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 that the whole price is to be a charge on the 
 whole estate, (c) The question whether in each particu- 
 lar 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 sup- 
 position that the lien was relied on, that circumstance 
 will have weight in the decision ; or if a security be 
 taken of *a character and value which show that 
 L -I credit was exclusively given to that security, 
 that fact also will have its weight. But the question is 
 always one of intention, to be collected from circum- 
 stances which have taken place. (cZ)* 
 
 (6) Clarke v. Royle, 3 Sim. 499 ; Parrott v. Sweetland, 3 M. & K. 
 655 ; Buckland v. Pocknell, 13 Sim. 406. 
 
 (c) Capper v. Spottiswoode, Taml. 21; Bond v. Kent, 2 Vern. 281. 
 
 ((^) Nairn v. Prowse, 6 Ves. 752 ; Mackreth v. Symmons, 15 Ves. 
 829 ; Winter v. Anson, 3 Kuss. 488 ; 3 Sug. V. & P. c. xviii. 
 
 other hand, that the lien will be considered as waived whenever any dis- 
 tinct and independent security is taken, whether by mortgage of other 
 land, or pledge of goods, or personal responsibility of a third person (as 
 the indorsement of the vendee's note), and also when the security is 
 taken upon the land, either for the whole or a part of the unpaid pur- 
 chase-money, unless there is an express agreement that the implied heir 
 shall be retained." See also Truebody v. Jacobson, 2 Calif. 269 ; De- 
 lassas V. Posten, 19 Miss. 425; Tiernan v. Thurman, 14 B. Monr. 277.] 
 '■ 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 
 
PERFECT AND IMPERFECT MORTGAGES. 323 
 
 The sixth and seventh classes of imperfect mortgages, 
 are those of equitable fieri facias and elegit, and judg- 
 ment charges under 1 & 2 Vict. c. 110, ss. 13, 14. 
 
 The writs of fi^ri facias and elegit are writs of execu- 
 tion after judgment, respectively requiring the sheriff 
 to levy the debt out of the debtor's personal or real 
 estate. And being writs issued out of the common law 
 Courts, they are confined in their operation to legal in- 
 terests. If tlie debtor be entitled to a trust or equity of 
 redemption, his interest is exempt 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 Sta- 
 tute 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 has 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 equi- 
 table /en /«ci«s, or elegit, according as it is sought against 
 personal or real estate. 
 
 Its modus operandi is of a threefold character, first, by 
 injunction against setting up an outstanding estate in 
 
 (e) 29 Car. 2, c. 2, s. 10 ; Forth v. Duke of Norfolk, 4 Mad. 503. 
 
 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. 
 
 [As to whether this lien passes, on the assignment of the debt for the 
 unpaid purchase-money, to the assignee, the authorities are in conflict 
 in the different States ; see the note to Mackreth v. Symmons, ut supr. 
 where the matter is fully discussed. And see Fisher v. Johnson, 5 
 Indiana, 492.] 
 
324 ADAMS'S DOCTRINE OF EQUITY. 
 
 bar of execution at law ; secondly, by appointment of a 
 receiver ; and, thirdly, in the case of an equity of re- 
 demption, by permitting the judgment creditor to re- 
 deem. But it is strictly confined to its legitimate ob- 
 ject, viz., the imposing *on the equitable interest 
 I- -J the liability which would attach at law on a cor- 
 responding legal interest. In accordance with this prin- 
 ciple, 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 the creditor in a 
 condition to acquire a power over the estate by suing 
 out the writ, acts, as it does in all similar causes, and 
 enables him to redeem other incumbrances ; in the lat- 
 ter, if under any circumstances the estate is to be sold, 
 it pays off the judgment, 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 spe- 
 cial jurisdiction supervenes, e. g., in a suit to administer 
 the debtor's assets ; but the relief is confined to percep- 
 tion of rents. Nor will a decree be made for charging 
 property by way of equitable fieri facias or elegit, if the 
 property be of a kind exempt from execution 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 redemp- 
 tion, for the judgment creditor is obliged to redeem the 
 entirety, and cannot be afterwards deprived of it without 
 payment of his demand. (/) 
 
 (/) Mitf. 126 ; Neate v. Duke of Marlborough, 3 M. & C. 407; StUe- 
 
PERFECT AND IMPERFECT MORTGAGES. 325 
 
 The rights of a judgment creditor, except as against 
 purchasers and mortgagees without notice, are much in- 
 creased by a late statute. The operation of ih^ fieri fa- 
 cias 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 contract. It is enacted by 
 the same statute, that decrees and orders of Courts 
 of equity, and all rules *of Courts of law ^-nd 
 orders in bankruptcy and lunacy for payment of ^ -I 
 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 entirety, instead of a moiety of the debtor's 
 land, to include lands of copyhold and customary 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 pos- 
 sessed at the time of entering the judgment. It appears, 
 therefore, to include leaseholds and trust estates, belong- 
 ing to the debtor at the date of the judgment, and to 
 render his alienation of the one before delivery of the 
 writ, or of the other before execution sued out, no longer 
 material. (A) 
 
 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 
 
 man v. Ashdown, 2 Atk. 608 ; Rider v. Kidder, 10 Ves. 360, 368 ; 
 Skeeles v. Shearley, 3 M. & C. 112. 
 
 (S') 1 & 2 Vict. c. 110, s. 9-22 ; 2 Vict. c. 11, s. 5. 
 
 (/i) 1 & 2 Vict. c. 110, s. 11 ; 2 Sug. V. & P. 401 ; 5 Jarm. Byth, 
 48 ; 1 Jarm. Byth. 107 ; Prideaux on Judgtnents, 58. 
 
326 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 ./?en facias and elegit will 
 of course be extended in a corresponding degree ; but 
 they are still far from satisfactory remedies. The elegit 
 is imperfect, because it can only operate by perception 
 of profits, and does not authorize acceleration of payment 
 by a sale ; the /i. fa. is imperfect because it cannot ope- 
 rate on stock or shares. 
 
 In order to obviate these difiiculties the judgment 
 charge has been introduced. 
 
 r*i90T *The right to an elegit ov fieri facias, whether 
 L "'-' 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 respect to real 
 estate, whether legal or equitable, and whether liable 
 to execution or not, and with respect to interest in stock 
 or shares, whether legal or equitable, the operation of 
 the judgment is still further extended, and it is consti- 
 tuted, under certain restrictions, an actual charge in 
 equity ; but the operation of such charge, as well as 
 the extended execution under the preceding clauses, is 
 declared of no effect as against purchasers or mortgagees 
 without notice. (/;) 
 
 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 heredita- 
 ments, 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 re- 
 
 (0 1 & 2 Vict. c. 110, 1. 12. (k)2&3 Vict. c. 11, s. 5. 
 
PERFECT AND IMPERFECT MORTGAGES. 327 
 
 mainder, 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 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 
 enforcement, 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 entitled 
 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 bankruptcy. {I) 
 
 *The judgment charge on stock and shares is r^iqq-i 
 created by enactments, that if a judgment debtor 
 have an estate or interest in stock or shares, or in the divi- 
 dends or intei-est 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 there- 
 of, or the dividends or interest thereon, with payment of 
 the judgment debt and interest ; and that such order 
 shall entitle the judgment creditor to the same remedies 
 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 the expiration of six 
 calendar months from the date of the order, (m) 
 
 (Z) 1 & 2 Vict. c. 110, s. 13 ; Smith v. Hurst, 1 Coll. 705; Clare v. 
 Wood, 4 Hare, 81 ; Harris v. Davison, 15 Sim. 128. 
 
 (m) 1 & 2 Vict. c. 110, ss. 14 & 15j 3 & 4 Vict. c. 82, s. 1; Bristed 
 V. Wilkins, 3 Hare, 285. 
 
328 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 property, 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 &fi.fa., or on execution had of goods under 
 an elegit, the plaintiff may have a capias ad satisfacien- 
 dum 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 defendant cannot be taken, (n) 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 
 L -■ afterwards and before the property so charged or 
 secured shall have been realized, and the produce appHed 
 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) 
 
 («) 3 Steph. Bl. 650, 652. 
 
 (o) 1 & 2 Vict. c. 110, s. 16 ; Houlditch v. Collins, 5 Bea. 497. 
 
OF CONVERSION, ETC. 329 
 
 *CHAPTER IV. [*135] 
 
 OF CONVERSION — PRIORITIES — NOTICE — TACKING. 
 
 In immediate connection with the subjects just con- 
 sidered, 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 jurisdic- 
 tion, 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 impressed 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 redemp- 
 tion are treated as estates ; but its effect is most obvious 
 in the constructive change of property from real to per- 
 sonal estate, and vice versa, so as to introduce new laws 
 of devolution and transfer. 
 
 Let us first consider the doctrine in its operation under 
 a trust. 
 
 The rule in respect to trusts is, that if an imperative 
 trust is created either for employing money in the pur- 
 
330 ADAMS'S DOCTRINE OF EQUITT. 
 
 chase of land, or for selling land and turning it into 
 *raoney, the money or land, of which a conver- 
 L J sion 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 y. Ashburner, 1 B. C. C. 497. 
 
 * The rule is well settled that where there is an absolute and impera- 
 tive direction that land shall be sold and turned into money, or money 
 be employed in the purchase of land, the money is considered in equity 
 in all respects as converted into land, or the land into money, as the case 
 may be. Craig v. Leslie, 3 Wheaton, 564 ; Peter v. Beverly, 10 Pet. 
 R. 532 ; Taylor v. Benham, 5 How. R. 233 ; Hawley v. James, 5 
 Paige, 320 j Smith v. McCrary, 3 Ired. Eq. 204; Gott v. Cook, 7 Paige, 
 534 ; Commonwealth v. Martin's Ex'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. McClanachan, 2 Grattan, 280; Reading v. 
 Blackwell, 1 Bald. 166 ; Hurtt v. Fisher, 1 Har. & G. 88 ; Leaden- 
 ham 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 Penn. St. 287; Lorillardv. 
 Coster, 5 Paige. 172 ; Drake v. Pell, 3 Edw. Ch. 251 ; [Thomas v. 
 Wood, 1 Maryl. Ch. 296 ; Collins v. Champ's heirs, 15 B. Monr. 118.] 
 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. [If there 
 is an absolute direction to sell, it is not material that the time of sale, 
 if fixed, is postponed. Reading v. Blackwell, Baldw. C. C. 166; Rhine- 
 hart V. Harrison, Id. 177. Where the power of sale, however, is dis- 
 cretionary, there is no conversion till it is actually exercised. Dominick 
 V. Michael, 4 Sandf S. C. 374 ; Bleight v. Bank, 10 Penn. St. 132; 
 Pratt V. Taliaferro, 3 Leigh, 419 ; Montgomery v. Milliken, 1 Sm. & 
 Marsh. Ch. 495. So where the power is to be exercised with the consent 
 of the parties interested. Nagle's App. 13 Penn. St. 262 ; Stoner v. Zim- 
 merman, 21 Penn. St. 394. But a mere discretion given as to the time 
 when the power is to be exercised, will not prevent a conversion, where 
 the direction to sell is absolute. Stagg v. Jackson, 1 Comstook, 206 ; 
 Tazewell v. Smith, 1 Rand. 313 ; though see contra, Christler's Ex'rs v. 
 Meddis, 6 B. Monr. 35. On the subject of conversion, see the Ame- 
 
OF CONVERSION, ETC. 331 
 
 The points which require notice under this rule are 
 the requirement 'that the converting trust shall be imper- 
 
 rican authorities, collected and discussed in the note to Fletcher v. 
 Ashburner, 1 Lead. Gas. Eq. 1st Am. ed. 563.] Where one by will 
 directed real estate to be sold, and the proceeds divided among re- 
 siduary legatees, and one of them, a feme coverte, 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 coverte to take the legacy as land, 
 the devise passed to the husband and his representatives as personalty. 
 Einehart 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, his share will 
 descend as personal estate. Marsh v. Wheeler, 2 Edw. Ch. 156 ; Pratt 
 V. Taliaferro, 3 Leigh, 419 ; Reading v. Blackwell, Baldw. 166 ; [Smith 
 V. McCrary, 3 Ired. Eq. 204 ; Ilurtt v. Fisher, 1 Har. & G. 88 ; Mor- 
 row V. Brenizer, 2 Eawle, 185. The same rules apply to agreements 
 between parties for a sale for the purposes of division. Harday v. Hawk- 
 shaw, 12 Beav. 552 ; Naglee v. Ingersoll, 7 Penn. St. 197. Or to a 
 conveyance for the benefit of creditors on trusts for sale. Griffith v. 
 Kioketts, 7 Hare, 299. Or to a legislative direction for a sale. Snow- 
 hill V. Snowhill, 2 Green Ch. 20. The same principle has been applied 
 in the working of the Act of Parliament for the emancipation of negroes 
 in the West Indies, there treated as realty, giving compensation to the 
 owners thereof. Richards v. Att.-Gen. of Jamaica, 6 Moore Priv. 
 Counc. Gas. 381. But in England, it has been held that money paid 
 into Court for land taken under the compulsory powers of an Act of 
 Parliament, was to be treated as realty. Re Horner's Est. 5 D. G. & 
 Sm. 483 ; Re Steward's Est. 1 Drew, 636 ; Re Stewart, 1 Sm. & Giif. 
 39 ; Taylor's Settlement, 9 Hare, 596 ; but see Ex parte Hawkins, 13 
 Sim. 569 ; Ex parte Flamank, 1 Sim. N. S. 260. 
 
 Where the sale is made by the act of the law, as under proceedings 
 for payment of debts or to make partition, there is no conversion until 
 all the conditions of sale are complied with, at least so far as to entitle 
 the purchaser to a deed. Biggert's Est. 20 Penn. St. 17 ; and see Betts 
 V. Wirt, 3 Maryl. Ch. 113.] 
 
 Though land directed to be sold is to be considered as money, yet an 
 election may be made by those having a right to elect, to take it as land. 
 
332 Adams's doctrine of equity. 
 
 ative, and the limitation of the continuance and pur- 
 poses of the conversion so as to coincide with the con- 
 tinuance and purposes of the trust. 
 
 First, the conversion must be directed by an impera- 
 tive 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 lease- 
 holds," or to invest " on land or good security," there 
 is no positive expression of intention to convert, and the 
 Court in dubio will not interfere ; but the use of such 
 expressions, or of others which in terms imply an op- 
 tion, will not deprive the trust of an imperative cha- 
 racter, if other portions of the instrument show a con- 
 trary intent. A mere declaration that the property 
 shall be considered as converted is immaterial; for it is 
 
 Tazewell v. Smith, 1 Band. 313 ; Craig v. Leslie, 3 Wheat. 578 ; Burr 
 V. Sim, 1 Whart. K. 252 ; Broome v. Curry, 19 Alab. 805. But this 
 election must be by some unequivocal act, and all interested must join, 
 or the act is nugatory. Willing v. Peters, 7 Penn. St. 290 ; Pratt v. 
 Taliaferro, 3 Leigh, 428; [Beatty v. Byers, 18 Penn. St. 105; Dixon 
 V. Gayfere, 23 L. J. Ch. 60 ; 27 Id. 148 ; 1 De G. & Jones, 655. 
 Mere lapse of time, however great, is not sufficient. Beatty v. Byers. 
 Nor the mere entering into and taking possession of the estate. Dixon 
 V. Gayfere. J 
 
 As to the power of an infant or guardian to make an election, see 
 Burr V. Sim, ubi supra; Pratt v. Taliaferro, ubi supra; [and notes to 
 Fletcher v. Ashburner, ut supr.J 
 
 Where land is not converted out and out, and at all events into per- 
 sonal property, but on the contrary its conversion depends upon a condi- 
 tion, it will not be considered in equity as personal estate. Evans v. 
 Kingsberry, 2 Rand. 120. So if it depend upon a contingency. Naglce 
 V. Ingersoll, 7 Penn. St. 197. 
 
OF CONVERSION, ETC. 333 
 
 not the declaration, but the duty to convert, which 
 creates the equitable change. (&) 
 
 Secondly, the duration of the converted character is 
 coincident with that of the trust. For the conversion 
 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 determined with it. 
 
 Where the trust is countermanded by the subsequent 
 *owners, their act is denominated a 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 property in its original, instead of its 
 converted character ; 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.(£Z) But if an estate is directed to be 
 sold, and the proceeds to be divided among several per- 
 sons, a reconversion cannot be effected until all are com- 
 petent and willing to join ; for the duty imposed on the 
 trustee, is to convert the entire estate for the benefit of 
 all, and that duty continues until countermanded by 
 all.(e) 
 
 (I) Thornton v. Hawley, 10 Ves. 129 ; Polley v. Seymour, 2 Y. & C. 
 708; Cookson v. Cookson, 12 CI. & F. 121 ; Attorney-General v. Man- 
 gles, 5 Mee. & W. 128; [Taylor v. Taylor, 3 De G. Macn. & G. 190 ; 
 Eobinson v. The Governors, &c. 10 Hare, 29.] 
 
 (c) Crabtree v. Bramble, 3 Atk. 680. 
 
 (d) Lingen v. Sowray, 1 P. W. 172 ; Cookson v. Cookson, 12 CI. & 
 ¥. 121. 
 
 (e) Fletcher v. Ashburner, 1 B. C. C. 497, 500; Death v. Hale, 2 
 Moll. 317 ; Seeley v. Jago, 1 P. W. 389. 
 
334 ADAMS'S DOCTRINE OP EQUITY. 
 
 The receipt by the cestui que trust of money converti- 
 ble into land operates, as we have seen, as a reconver- 
 sion. 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 ope- 
 rates as a constructive receipt, and determines the 
 trust. (/) 
 
 It has been contended that the right to countermand 
 the converting trust renders a gift of the proceeds of con- 
 version equivalent to a gift of the unconverted property; 
 and, consequently, that a gift of land to a trustee, on 
 trust to sell and pay the proceeds to an alien, is invalid 
 as against the policy of law. But it is decided other- 
 wise ; for the trust is in truth a compliance with the 
 law by directing that the land shall be sold to per- 
 r*i QS1 ^^"^ ^^° ™^-^ *legally hold it, in order to raise 
 ■- -I the money which the alien may legally hold. 
 And, although the alien would be entitled to elect 
 against the conversion, there is no reason to force that 
 election on him, or to inflict a forfeiture of money, 
 which he can enjoy, because he might have elected to 
 take land, which he cannot, (g')' 
 
 Thirdly, the conversion will operate for those purposes 
 only which fall within the scope of the trust. 
 
 The principal doubts on this point have arisen in re- 
 
 (/) Pultoney v. Darlington, 1 B. C. C. 223, 238 ; 7 B. P. C. by 
 Toml. 530 ; Wheldale v. Partridge, 8 Ves. 227, 235. 
 
 (g) Fourdrin v. Gowdey, 3 M. & K. 383 ; Du Hourmelin v. Sheldon, 
 IBea. 79; 4 M. & C. 525. 
 
 1 Craig V. Leslie, 3 Wheat. 564 ; Commonwealth v. Martin, 5 Munf. 
 117 ; [Taylor v. Benham, 5 How. U. S. 269 ; Anstioe v. Brown, 6 
 Paige, 448.] 
 
OF CONVERSION, ETC. 335 
 
 gard to resulting trusts ; viz., where conversion is di- 
 rected for a particular purpose, which fails to exhaust 
 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, therefore, in the 
 event of failure, the property will devolve according to 
 its original character. If, for example, land be devised 
 for sale with a direction to apply the produce for pur- 
 poses altogether illegal, or which altogether fail, the 
 heir-at-law is entitled. If the purposes are partially il- 
 legal, 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 purposes of the will. And e converso, if a purchase 
 of land be directed for purposes which are altogether or 
 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 
 thewill.(A)' In like manner, a conveyance of ^ 
 *real estate in the owner's lifetime, on trust to L J 
 
 (A) Cogan v. Stephens, Lewin on Trustees, App. vii ; Hereford v. 
 Eavenhill, 1 Bea. 481 ; Eyre v. Marsden, 2 K. 564, 574 ; Ackroyd v. 
 Smithson, 1 B. C. C. 503. 
 
 ' [The result of the authorities on this subject is, that where land is 
 devised to be sold for purposes which are illegal, or fail, in whole or part, 
 or do not exhaust the whole interest, the heir takes the disappointed in- 
 
336 ADAMS'S DOCTRINE OP EQUITY, 
 
 convert it into money and to pay the proceeds to him or 
 his executors, will not, if the estate is unsold at his 
 
 terest, to the exclusion of the next of kin. Where there is only a partial 
 failure or lapse, so that a sale is still necessary, or as to any undisposed 
 of surplus, the heir takes the money as land. Craig v. Leslie, 3 Wheat. 
 564; Burr v. Sim, 1 Whart. 252; Morrow v. Brenizer, 2 Eawle, 185; 
 Pratt V. Taliaferro, 3 Leigh, 419; Owens v. Cowan, 7 B. Monr. 152; 
 Lindsay v. Pleasants, 4 Tred. Eq. 320; Slocum v. Slocum, 4 Edw. Ch. 
 613 ; Bogert v. Hertell, 4 Hill (N. Y.), 498. The converse of this 
 rule applies as to money to be laid out on land : Hawley v. James, 5 
 Paige, 323 ; except that where the money is disposed of only for a 
 limited interest, it, or the land when purchased, beyond that interest,' 
 goes to the heir. 2 Jarm. Pow. Dev. 74 ; Thorn v. Coles, 3 Edw. Ch. 
 330. In De Beauvoir v. De Beauvoir, 3 House Lords' Cas. 524, where 
 there was a power to lay out money on land, and a blended disposition 
 of the realty and personalty, so as to produce a conversion of the latter, 
 and to show an intention to impress it with the character of real estate, 
 and the whole was devised to designated persons in tail male with a 
 limitation over to the testator's right heirs, it was therefore held that the 
 intention did not cease with the failure of issue male under the Umita- 
 tions, so as to make the real estate go one way, and the uninvested per- 
 sonalty another. 
 
 The rights of the heir are not affected, in these respects, by the fact 
 that the produce of the real estate is blended with the personalty as a 
 joint fund. Lindsay v. Pleasants, 4 Ired. Eq. 321 ; Wood v. Cone, 7 
 Paige, 476. In some of the American cases, however, it has been held 
 that where it appears to have been the testator's intention that the land 
 shall change its character for all purposes and be considered as person- 
 alty, the next of kin will be entitled in the failure of any particular 
 purpose. Craig v. Leslie, 3 Wheat. 383 ; Burr v. Sim, 1 Whart. 263; 
 Morrow v. Brenizer, 2 Eawle, 185. But in England, the rule is now 
 that not the most express directions in the will, as that the proceeds of 
 real estate shall constitute a fund of personalty, or the like, will exclude 
 the right of the heir, unless, perhaps, there is a distinct bequest to the 
 next of kin on the occurrence of such failure. Taylor v. Taylor, 3 De 
 G. Mac. & G. 190 ; Kobinson v. The Governors, 10 Hare, 29; Fitch 
 v. Weber, 6 Hare, 145; Gordon v. Atkinson, 1 De G. & Sm. 478; 
 Sammons v. Kose, 25 L. j: Ch. 615 ; 20 Jurist, 73. 
 
 Though the undisposed of interest in land devised to be sold for par- 
 
OF CONVEESION, ETC. 337 
 
 death, work an equitable conversion in fovor of the 
 crown, so as to subject it to probate duty. {iy 
 
 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 consti- 
 tuted a fund for particular payments, a contention 
 sometimes arises as to the purpose really in view ; viz., 
 whether it was confined to those particular payments, 
 or extended to a total change of character, so that the 
 surplus may be liable as personal assets to creditors, 
 may pass to a legatee of the personal residue, and may 
 have the benefit of augmentation by lapse, indepen- 
 dently of the enactment of 1 Vict. c. 26. The prima 
 facie construction is in favor 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 suflScient here to notice that it exists. (^)^ 
 
 (0 Matson v. Swift, 8 Bea. 368 ; Taylor v. Haygarth, 14 Sim. 8 ; 
 [see Cradock v. Owen, 2 Sm. & Gifford, 241.J 
 
 (Ic) 1 Jarm. on Wills, c. xix, ss. 4 and 5; Amphlett v. Parke, 1 Sim. 
 275; 4Euss. 75; 2 K. & M. 221. 
 
 ticular purposes is treated as land, so as to descend to those who would 
 have been entitled had it remained unconverted, yet after actual conver- 
 sion, the surplus descends as money. Pennell's App. 20 Penn. St. 515; 
 Whitebread v. Bennet, 18 Jurist, 140.] 
 
 * [Where a settlor conveys real estate upon trusts for sale, and directs 
 the proceeds to be applied to certain purposes, some of which fail, whe- 
 ther the sale is directed in the lifetime of the settlor or after his decease, 
 the property will to the extent to which the purposes fail, result to the 
 settlor as personal estate. Secus, if there is a failure of the whole pur- 
 poses for which the sale is directed. Clarke v. Franklin, 27 L. J. Ch. 
 567 ; 4 Kay & Johns. 257.] 
 
 " 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 
 
 22 
 
338 ADAMS'S DOCTRINE OF EQUITY. 
 
 The circumstance that the conversion 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 deter- 
 mining in what character the party takes. The former 
 question depends on the original character of the pro- 
 perty ; 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, therefore, by which the question 
 should be tried, is the inquiry 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 
 ,-., .r.-, hmd is devised on trust *to sell, and to divide 
 -J the proceeds between A. and B. A. dies in the 
 testator'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 necessary between 
 B. and the heir, as it was between A. and B. The execu- 
 
 trustee from selling more than is necessary to pay the debts and lega- 
 cies ; 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 appears to be to stamp upon the proceeds of 
 lands the quality of personalty, 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 Episcopal 
 Church, 1 Hoff. Ch. 205 ; Morrow v. Brenizer, 2 Rawle, 185; [but see 
 note to previous page.J 
 
 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 con- 
 veyance 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. 
 
OF CONVERSION, ETC. 339 
 
 tion of the trust therefore requires a sale, although its 
 purposes do not exhaust the proceeds ; and, accordingly, 
 the heir will take his share as money ; and if he die 
 without altering its destination, it will go to his exe- 
 cutor, and not to his heir. If, on the contrary, both A. 
 and B. die in the testator'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.(Z) 
 
 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 conr 
 sidered as performed ; so that the land becomes in equity 
 the property of the vendee, and the purchase-money that 
 of the vendor. The vendee, therefore, 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 occurring between the contract 
 and the conveyance. And, vice versa,, the vendor is en- 
 titled 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 
 estate. 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 
 
 (0 Smith V. Claxton, 4 Madd. 484 ; Jessopp v. Watson, 1 M. & K. 
 665 ; Hereford v. Kavenhill, 5 Bea. 51. 
 
 (m) 1 Sug. V. & P. c. iv, s. 1 ; c. vi, s. 2 ; 3 Sug. V. & P. c. xvi, 
 s. 1. 
 
340 ADAMS S DOCTRINE OF EQUITY. 
 
 after the death, *will be entitled to the purchase- 
 L -' money instead, (n) On the 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 essen- 
 tial that the contract be a binding one, and that the ob- 
 ject of the conversion be within its scope.' 
 
 The first essential is that the contract be binding, and 
 such as the Court will specifically execute. 
 
 If, therefore, the vendee die before completion of the 
 contract, and the contract be one which, either from de- 
 fect in the title or for any other reason, was not obliga- 
 tory 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 de- 
 
 (n) Broome v. Monck, 10 Ves. 597. 
 
 (o) Knollys v. Shepherd, cited 1 J. & W. 499 ; 1 Jarm. on Wills, 
 U7 ; 1 Sug. V. & P. 291 ; Lumsden v. Frazer, 12 Sim. 263. 
 
 ^ See ante, note to p. 136, upon the subject of equitable conversion 
 generally, and also Story's Eq. Jurisprudence, § 790 to § 793, and § 1212 
 to § 1214. [Henson 7. Ott, 7 Ind. 512. An equitable conversion occurs 
 though the election to purchase rests entirely with the vendee. CoUing- 
 wood V. Eow, 26 L. J. Ch. 649 ; Kerr v. Day, 14 Penn. St. 112. If 
 there be a rescission after the death of the vendor it amounts to a recon- 
 version into land, and his distributees, who would be entitled to the 
 money, will take the land instead. Leiper's Ex'rs v. Irvine, 26 Penn, 
 St. 54. An interest in a contract for the purchase of land descends on 
 the heirs of the purchaser ; his administrator must account to them for 
 the rents, or for moneys derived from sales. Griffith v. Beecher, 10 
 Barb. S. C. 432. So, on the other hand, the interest of the vendor is 
 held by the heir in trust for the next of kin, and if the land is recovered 
 back in ejectment, it is still held as personalty. Rose v. Jessup, 19 
 Penn. St. 280. 
 
 A devise of lands is revoked by an agreement to sell in the devisor's 
 life, and the purchase-money passes not to the devisee, but the residuaiy 
 legatee. Donohoo v. Lea, 1 Swan (Tenn.) 119.] 
 
OP CONVERSION, ETC. 341 
 
 ceased 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 ac- 
 cording to its original character, and so long as the option 
 is undeclared, the intermediate interest will follow the 
 same course ; but when the option is made in favor of 
 enforcing the contract, the conversion will take effect 
 from the date of its being declared, (p) 
 
 The second essential is that the object for which con- 
 version is assumed be within the scope of the contract. 
 
 There is no equity for assuming a conversion in favor 
 of or against any person who is not a party to the con- 
 tract.' 
 
 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 immediate parties, but 
 that the landlord had a right to treat it as executed, and 
 to proceed in equity against the assignee. A case might 
 certainly *occur in which the person having the 
 equitable right might so conduct himself as to ■- -I 
 raise an equity in favor of the landlord, but it is decided 
 that the mere existence of the contract cannot confer on 
 the landlord any equity to interfere, (q) It has also been 
 contended that a husband's assignment of his wife's 
 
 (p) Broome v. Monck, 10 Ves. 597 ; Eose v. Cunynghame, 11 Ves. 
 550; Townley v. Bedwell, 14 Ves. 591 ; 1 Jarm. on Wills, 49. 
 
 (j) Moores V. Choat, 8 Sim. 508 ; Close v. Wilberforce, 1 Bea. 112 ; 
 Robinson v. Kosher, 1 You. & Coll. N. C. C. 7. 
 
 ' [Equitable conversion by a contract of sale, does not affect the rights 
 of the creditors of the vendor. Leiper's Ex. v. Irvine, 26 Penn. St. 54.] 
 
342 Adams's doctrine of equity. 
 
 choses in action should exclude the wife's right by sur- 
 vivorship, on the ground that such an assignment im- 
 plies a contract to reduce the chose into possession, and 
 is equivalent in equity to such reduction. This proposi- 
 tion was first overruled in respect to bankruptcy, and it 
 was decided that whatever might be the rights of pur- 
 chasers for value, the assignees in bankruptcy were en- 
 titled to no such equity. It was next overruled with 
 respect to all assignments, although for valuable conside- 
 ration, if the chose were reversionary, and therefore incar 
 pable 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 equi- 
 valent to a reduction into possession, yet as against the 
 wife, who is no party to the contract, it cannot have that 
 effect, {ry 
 
 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 invest his personal 
 estate in land without authority for so doing, the land 
 will be affected in equity as personal estate, and will 
 pass to the administrator on the infant's death.^ Or 
 
 ()•) Ashby V. Ashby, 1 Coll. 553 ; Eees v.Keith, 11 Sim. 388; Ellison 
 V. Elwin, 13 Sim. 309 ; Burnham v. Bennett, 2 Coll. 254. 
 
 ' [See, however, in the United States, note to Hill on Trustees, p. 598, 
 2d Am. Ed.] 
 
 ■^ See Philips v. Crammond, 2 "W. C. C. K. 441; and note, ante, page 
 33. 
 
 " [Collins V. Champ's heirs, 15 B. Monr. 118.] 
 
OF OONVEESION, ETC. 343 
 
 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 *heir ; it is otherwise ^,, , ^ 
 
 • r 1431 
 
 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 authoiized 
 by the Court, there is no breach of trust, and therefore 
 no equity, (s) 
 
 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 admitted 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, how- 
 ever, that the one property shall have been produced by 
 the other ; and therefore the doctrine will not apply if 
 the estate be purchased with borrowed money, and 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 another, 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 affirms the pur- 
 chase, it becomes a purchase with his money, and enti- 
 
 (s) Tullitv. 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. 
 
344 ADAMS'S DOCTRINE OF EQUITY. 
 
 ties him to the estate. It is therefore unnecessary that 
 the trust should be evidenced in writing, notwithstand- 
 ing that the claim may be for real estate. But the ap- 
 plication 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 
 L I'^^J -was used, or a clear inability in him to make the 
 purchase with other funds, mere parol evidence of decla- 
 rations 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 pur- 
 chase-money had been traced to a subsequent invest- 
 ment. It was held that where a contract is avoided on 
 the ground of fraud, no property delivered under it 
 passes from the owner; that the money, therefore, which 
 had been paid still belonged 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 resisted 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 ap- 
 
 (0 Lane v. Dighton, Amb. 409 ; Lewis v. Maddocks, 8 Ves. 150; 
 17 Ves. 48 ; Denton v. Davis, 18 Ves. 499 ; Taylor v. Plumer, 3 M. 
 & S. 575 ; Lencli v. Lench, 10 Ves. 511 ; Willdns v. Stevens, 1 You. 
 & Coll. N. C. 0. 431 ; 3 Sug. V. & P. c. xx, s. 3 and 4. 
 
 1 See Murray v. Lylburn, 2 John. C. R. 442 ; and note, ante, page 
 33. 
 
OF PRIORITIES, ETC. 345 
 
 plication was not justified where the contract was re- 
 scinded on the ground of what may be called fraud in 
 equity, rather than for absolute legal nullity. The dis- 
 tinction did not prevail 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 main- 
 tained, (m) 
 
 The doctrine of conversion, by changing the character 
 of trusts and contracts, and altering them from mere 
 rights of action into actual though imperfect titles in 
 equity, gives rise to questions between them and the 
 legal title, and also to questions between conflicting 
 equities, where several have been created in reference 
 to the same *thing. It therefore becomes neces- 
 sary to consider the principle which determines L -■ 
 the PRIORITY between such conflicting claims. 
 
 The rule of priority in regard to transfers and charges 
 of the legal estate, whether made spontaneously by a 
 conveyance, or compulsorily by a judgment at law, is 
 that the order of date prevails. Conveyances take effect 
 from the date of the conveyance ; judgments against 
 realty from the date of the judgment; 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 purchasers ; 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 
 
 (m) Small V. Attwood, Younge, 507 ; 1 Sug. V. & P. 400. 
 
346 ADAMS'S DOCTRINE OF EQUITY. 
 
 and Insolvency, by which certain grants made by a bank- 
 rupt or insolvent are avoided as against his assignees/ 
 
 By the statute of 27 Eliz. c. 4, it is enacted, that con- 
 vej'ances, grants, &c., of or out of any lands or heredita- 
 ments had or made of purpose to defraud and deceive 
 such persons as shall purchase the same lands or here- 
 ditaments, or any rent, profit, or commodity 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 con- 
 veyance, 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 fraudu- 
 lent ; and in this case it may be avoided by a subsequent 
 r*146"l ^o""^6yf''"ce *from the heir of the grantor," as 
 well as by one from the grantor himself (?)) 
 Secondly, if it contain a power of revocation. (w) And 
 
 (v) Burrel's case, 6 Rep. 72 ; 3 Sug. V. & P. 282. 
 (w) 3 Sug. V. & P. 307. 
 
 ' [The subject of conveyances of land and chattels in fraud of pur- 
 chasers or creditors, upon which there is a very considerable diversity of 
 decision and legislation in the different States, will be found discussed 
 very fully, and with remarkable ability, in the notes to Sexton v. 
 Wheaton, 1 Am. Lead. Cas. 41 ; and to Twyne's case, 1 Smith Lead. 
 Cases, 1, 1st American Edition, by the late Mr. Wallace.] 
 
 ^ [This has been overruled in England by the recent case of Doe d. 
 Newman v. Rusham, 16 Jur. Q. B. 359 ; and Burrel's case shown not 
 to support the proposition for which it is usually cited. See also Doe 
 V. Lewis, 11 C. B. 1035.J 
 
OF PRIORITIES, ETC. 34:7 
 
 thirdly, if it be made without valuable 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 subsequent conveyance or 
 contract, is sufficient to establish 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 purchaser, e. g., if there be a subsequent con- 
 veyance from the volunteer to a purchaser for value. (?/) 
 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 pei- se sup- 
 port that remainder, and it may be set aside by the pur- 
 chaser, (z) 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 hona fide sale for value has 
 been made, the purchaser may set aside the prior grant, 
 and his hona fides will not be affected by notice of it.(&)' 
 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 
 
 (x) Doe V. Manning, 9 East, 59 ; Pulvertoft v. Pulvertoft, 18 Ves. 
 84 J 3Sug. V. &P. 286, et seq. 
 
 (y) Prodgers v. Langham, 1 Sid. 133 ; George v. Milbanke, 9 Ves. 
 190 ) Brown v. Carter, 5 Ves. 862 ; 3 Sug. V. & P. 297. 
 
 (2) Johnson v. Legard, 6 M. & S. 60 j T. & K. 281 ; Doe v. Eolfe, 
 8 A. & E. 650 ; Davenport v. Bishopp, 2 N. C. C. 451. 
 
 (a) Petre v. Espinasse, 2 M. & K. 496 ; Pulvertoft v. Pulvertoft, 18 
 Ves. 84. 
 
 (6) Gooch's case, 5 Kep. 60 a. ; Pulvertoft v. Pulvertoft, 18 Ves. 84; 
 Buckle V. Mitchell, 18 Ves. 100. 
 
 ' [A different rule obtains in many of the United States. Note to 
 Sexton V. Wheaton, 1 Am. Lead. Cas. 62, 1st Am. ed.] 
 
348 ADAMS S DOCTRINE OF EQUITY. 
 
 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 enacted, 
 L J that all conveyances, grants, &c., of any lands, 
 hereditaments, goods, or chattels, had or made of pur- 
 pose 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 assu- 
 rance made on good consideration and bona fide to a 
 person not having notice of such fraud. 
 
 The provisions of this statute, like those of the statute 
 in favor of purchasers, invalidate all conveyances and 
 assignments made with a fraudulent design ;(cZ) 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 deeply indebted at the time, it affords presump- 
 tive 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 con- 
 
 (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 Jur. N. S. 
 105 ; 3 Sug. V. & P. 300, et seq. 
 
 (d) Twyne's case, 3 Eep. 80. 
 
 1 [As to the extent of indebtedness which will render a voluntary 
 conveyance fraudulent as to creditors, the decisions in the United States 
 are not uniform. See note to Sexton v. Wheaton, ut supr.] 
 
OF PRIORITIES, ETC. 349 
 
 elusive evidence of fraud. The presumption, however, 
 does not arise except in favor of persons who were credi- 
 tors when the gift was made. But if the gift is set aside 
 by them, the subsequent creditors will be let in to par- 
 take 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 preju- 
 diced by the *gift. For this reason, if relief be 
 asked in the lifetime of the debtor, the creditor •- -^ 
 must obtain judgment for his debt, and the property 
 m,ust be such as can be taken in execution. It was, 
 therefore, formerly held, that during the debtor's life- 
 time, 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 otherwise on his bankruptcy, insolvency, 
 or death, because the creditors might then reach all his 
 personal property. It may be presumed that the same 
 result will follow from the provisions of 1 & 2 Vict. c. 
 
 iio.(/) 
 
 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 prin- 
 ciples and enactments, and is foreign to our present 
 subject. 
 
 The rule of priority which governs transfers and 
 charges of a legal estate, governs also, in the absence of 
 
 (e) 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. 
 
 (/) Colmun V. Croker, 1 Ves. J. 160 ; Dundas v. Dutens, 1 Ves. 
 J. 196 ; Noreutt v. Dodd, 1 Cr. & P. 100 ; Story on Eq. s. 366, et seq. 
 
350 ADAMS'S DOCTRINE OF EQUITY. 
 
 a special equity, transfers and charges of, an equitable 
 interest. But if legal and equitable titles conflict, or if, 
 in the absence of a legal title, there is a perfect equit- 
 able title by conveyance on the one hand, and an im- 
 perfect 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 un- 
 equal, the superior equity will prevail ; and such supe- 
 riority 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 supe- 
 rior to his who has wilfully misled him. 
 
 3. A party taking with notice of an equity, takes sub- 
 ject to that equity. 
 
 *The first of these rules is, that the equity 
 L -' under a trust or a contract in rem, is superior to 
 that under a voluntary gift, or under a lien by judg- 
 ment. 
 
 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 entitled only to that which 
 his donor could honestly give ; and even the judgment 
 creditor, though he has in some sense given a considera- 
 tion, has not advanced his money on the specific secu- 
 rity, and is entitled to his debtor's real interest alone, 
 
OF PRIORITIES, ETC. 351 
 
 viz., his interest, subject to his equities as they existed 
 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 convey- 
 ance or executory contract, and of a mortgagee by deposit 
 of deeds, have priority over a judgment of a later date, 
 against the trustee, vendor, or mortgagor, notwithstand- 
 ing that by means of an elegit, the judgment may have 
 been clothed with the legal estate, (g) Nor is this doc- 
 trine affected by the late statute, transforming a judg- 
 ment into a charge by contract. Eor 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 enacted 
 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 the same equity. 
 If he has an equitable interest, it will be a charge on 
 that interest.(/i) 
 
 The second rule of superior equity is, that "the equity 
 *of a party who has been misled, is superior to 
 his who has wilfully misled him." '- -■ 
 
 This rule is, in fact, merely a specific application of 
 
 (ff) Newlands v. Paynter, 4 M. & C. 408 ; Lodge v. Lyseley, 4 Sim. 
 70 ; Langton v. Horton, 1 Hare, 549, 560 ; Whitworth v. Gaugain, 3 
 Hare, 416 ; 1 Ph. 728. 
 
 (/i) 1 & 2 Vict. c. nO; Whitworth v. Gaugain, 3 Hare, 416; 1 Ph. 
 
 728. 
 
 ' [The rule is the same in the United States generally, in the absence 
 of statutory regulation. Note to Basset v. Nosworthy, 2 Lead. Gas. Eq. 
 part i, 107, 1st Am. Ed. In Cadbury v. Duval, 1 Am. Law. Reg. 105 
 (affirmed on appeal), the doctrine was applied to a creditor by judgment 
 for contemporaneous advances.] 
 
352 ^ ADAMS S DOCTRINE OF EQUITY. 
 
 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 priority of conflicting 
 equities, renders it proper to be noticed here. 
 
 The meaning of the rule is, that if a person interested 
 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 compelled to make 
 his representation specifically good. If, therefore, a per- 
 son, 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 ownership, 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. (/<;) 
 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 improve- 
 ments having been made in error, where such error was 
 
 (i) Infra, Rescission of transactions on the ground of fraud. 
 (A) 3 Sug. V. & P. 429; Nicholson V. Hooper, 4 M. & C. 179; [Carr 
 V. Wallace, 7 Watts, 400.] 
 
 1 [Otis V. Sill, 8 Barb. S. C. 102; Chapman v. Hamilton, 19 Alab. 
 121 ; Folk V. Beidelham, 6 Watts, 339 ; McKelvey v. Truby, 4 Watts 
 & Serg. 328. It has been held, however, that a party will not be post- 
 poned on the ground of silence alone, where his title is upon record. 
 Goundie v. Northampton Co. 7 Penn. St. 239 ; Knouff v. Thompson, 16 
 Id. 361; Hill V. Epley, 31 Id. 331; Clabaugh v. Byerly, 7 Gill, 354.] 
 
OF PRIORITIES, ETC. 353 
 
 not abetted by himself, creates no equity for reimburse- 
 ment of their expense. (Z) 
 
 In order to the introduction of this equity, it is essen- 
 tial that there be intentional deceit in the defendant, or 
 at all *events, that degree of gross negligence 
 which amounts to evidence of an intent to de- L -I 
 ceive. If, therefore, the party standing by be ignorant 
 of his right, or if he has been merely careless or negli- 
 gent ; e. g., where a mortgagee or trustee, by not taking 
 the title deeds, or by subsequently parting with them, 
 has enabled the mortgagor 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, (m) ' 
 
 Cases of concealed or undisclosed interest, whether the 
 non-disclosure be fraudulent or accidental, are obviously 
 
 (J) Pilling V. Armitage, 12 Ves. 78, 84; Cawdor 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 Kuss. 198. 
 [See, however, Finch v. Shaw, 18 Jurist, 935.] 
 
 ' [The doctrine of Courts of equity on this point, has been recently 
 held to be, that a legal mortgagee will not be postponed on the ground 
 of not getting in the title deeds, unless there has been fraud or gross or 
 wilful negligence on his part. Such fraud or negligence will be imputed 
 to him, if he makes no application for the deeds at all ; but if he makes 
 application, and receives a reasonable excuse, he will be protected. 
 Hewitt V. Loosemore, 9 Hare, 449; Finch v. Shaw, 18 Jur. 935. 
 Hewitt v. Loosemore, was a bill for relief against a legal mortgagee, by 
 a prior equitable one, which was refused. Where an equitable mortgagee 
 by deposit, suffers the mortgagor, who borrowed the deeds on a plausible 
 excuse, to retain them a long time without objection, he will be post- 
 poned to a second mortgagee by deposit. Waldron v. Sloper, 1 Drewry,. 
 193.] 
 
 23 
 
354 ADAMS'S DOCTRINE OF EQUITY. 
 
 distinct from those where the interest was in its creation 
 fraudulent and void, and where therefore its non-disclo- 
 sure 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 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 therefore, 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."' 
 
 (w) Twyne's case, 3 Eep. 80 ; Manton t. Moore, 7 T. K. 67 ; Leonard 
 V. Baker, 1 M. &. S. 251 ; Arundell v. Phipps, 10 Ves. 139, 145; Mar- 
 tindale 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 t. Goodrich, 3 Id. 146; Lasselle 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, 3 Stew. 283 ; Ben- 
 zein 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 sufficient. 
 Harper v. Eeno, 1 Freem. Ch. E. 323 ; see also Green v. Slayter, 4 
 John. Ch. E. 47; Kerns v. Swope, 2 Watts, 78; Flagg v. Mann, 2 
 Sum. 486; Hackwith v. Damron, 1 Monr. 237; Miller v. Shackleford, 
 4 Dana, 264; Lessee of Billington v. Welsh, 5 Binn. 132; see also Kri- 
 der V. Lafferty, 1 Whart. R. 303, in which case it was held that there 
 might be notice from possession without residence. Though a purchaser 
 at public sale be chargeable with notice, yet a honafide purchaser under 
 
OF PRIORITIES, ETC. 355 
 
 The meaning of this doctrine is, that if a person acquir- 
 ing 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 contracted for that only which 
 the owner could honestly transfer, viz., his interest, sub- 
 ject to the equity as it existed at the date of the notice. 
 
 *In accordance with this principle, the pur- 
 chaser of property from a trustee with notice of ^ -■ 
 the trust, is himself a trustee for the same purposes ; 
 the purchaser of property which the vendor has already 
 contracted to sell, with notice of such prior contract, is 
 bound to convey to the claimant under it ; and the pur- 
 chaser of land which the vendor 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 carried, where a covenant has been made 
 by the owner of land, the burden of which does not at 
 
 him is not affected by his notice. Demarest v. Wynkoop, 3 John. Ch. 
 K. 147. And a derivative purchaser with notice is protected by want 
 of notice in him under whom he claims. Curtis v. Lunn, 6 Munf. 42 ; 
 Lacyv. Wilson, 4 Id. 313; Lindsey v. Rankin, 4 Bibb. 482; Bumpus 
 V. Platner, 1 John. Ch. R. 213 ; McNitt v. Logan, Litt. Sel. Ca. 69 ; 
 Hagthorp v. Hook's Adm'r, 1 Gill & J. 273. [See on the subject of 
 notice, the notes to Le Neve v. Le Neve, 2 Lead. Cas. Eq. p. i, 145, 
 1st Am. Ed. As to notice under the recording acts in force in the 
 United States generally, see note, post, page 153.] 
 
 ' [In England and some of the United States, the rule is, that notice 
 before the execution of the conveyance, though after payment of the pur- 
 chase-money, is sufficient. But in others, as Pennsylvania and Virginia, 
 the notice must be before payment of the purchase-money. Hill on 
 Trustees, 2d Am. Ed. 231 ; notes to Basset v. Nosworthy, 2 Lead. Cas. 
 p. i, 95, 102, 1st Am. Ed. In some of the States also, contrary to the 
 English rule, and that prevailing in other States, payment of part of the 
 purchase-money, will be a protection fro tanto. Juvenal v. Jackson, 
 14 Penn. St. 519 ; Frost v. Beekman, 1 John. Ch. 288 ; Flagg v. 
 Mann, 2 Sumn. 486. See note to Basset v. Nosworthy, ut sup. 113.] 
 
356 ADAMS'S DOCTRINE OF EQUITY. 
 
 law run with the land, does not appear to be positively 
 settled. If, however, the covenant be one respecting the 
 land, and not purely collateral, there appears to 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 pre- 
 sumed to have contracted for it, subject to that modifica- 
 tion, (o)' 
 
 It will be observed, that the notice required by this- 
 doctrine is a 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 charac- 
 ter, by a party who has notice of it. If, being legal, 
 it may be defeated at law, there is no equity to pre- 
 serve 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 in- 
 terest ; for if the trust or contract were perfected by con- 
 veyance, or the legal ownership were vested in the judg- 
 ment debtor, the right of the cestui que trust or vendee 
 in the one case, or of the judgment creditor in the other, 
 could not be subsequently defeated. The case of dower 
 P^^ _„^ was until *recently an exception to this rule. 
 L -I We have already seen that by an anomalous 
 
 (o) Whatman v. Gibson, 9 Sim. 196 ; Schreiber v. Creed, 10 Sim. 
 9 ; Keppell v. Bailey, 2 M. & K. 517 ; 2 Sug. V. & P. 500. 
 
 ^ [It was accordingly so decided in Tulk v. Moxhay, 2 Phill. 774, 
 in which an assignee of land with notice of a covenant not to build, was 
 restrained, without any regard to the technical rules in Spencers case; 
 and the case has been followed frequently since. See Coles V. Sims, 18 
 Jurist, 683.] 
 
OF PRIORITIES, ETC. 357 
 
 distinction in the law of trusts, the widow was ex- 
 cluded from dower in a trust estate, although she would 
 have been entitled to it in a legal one of the same 
 character. The same distinction was continued in re- 
 spect to notice ; and it was held, that although the mere 
 existence of an outstanding term would not exclude the 
 widow in favor of the husband's heir, yet it would ex- 
 clude her in favor of her vendee, notwithstanding 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 appoint- 
 ment ; in legal titles destroyed by fine ; (p) in contracts 
 which the purchaser had ah initio a right to nullify ;(g') 
 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 sustain it. 
 
 There is an apparent exception to this rule in regard 
 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) Ridings 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 regis- 
 
 (p) Langley v. Fisher, 9 Bea. 90 ; Story v. Windsor, 2 Atk. 630. 
 (?) Lufkin V. Nunn, 11 Ves. 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. (0 6 Ann. c. 35. 
 
 (a) 2 & 3 Ann. c. 4 ; 5 Ann. c. 18. (w) 6 Ann. o. 35. 
 
358 ADAMS'S DOCTRINE OF EQUITY. 
 
 teved.{wy And it is enacted, that all such deeds shall 
 be adjudged fraudulent and void against any subsequent 
 
 (to) 7 Ann. c. 20. 
 
 1 [The rule under the recording acta, in force generally in the United 
 States, is different from that under the registry acts in England, and it 
 is held that the registry of a deed or mortgage, is notice of its contents, 
 and of equities created thereby, or arising therefrom, to all persons claim- 
 ing under the grantor, any title held by him at the time of the convey- 
 ance. 4 Kent's Comm. 174 ; American notes to Le Neve v. Le Neve, 
 2 Lead. Cas. Eq. p. i, 160, and cases cited, among which are CushiDg 
 V. Ayer, 25 Maine, 383 ; McMechan v. Griffing, 3 Pick. 149 ; Peters 
 v. Goodrich, 3 Conn. 146 ; Parkist v. Alexander, 1 J. C. E. 394 ; 
 Wendell v. Wadsworth, 20 John's E. 663 ; Plume v. Bone, 1 Green's 
 E. 63; Evans v. Jones, 1 Yates, 174; Irvin v. Smith, 17 Ohio, 226; 
 Martin v. Sale, Bail. Eq. 1; Shults v. Moore, 1 McLean, 520; Hughes 
 v. Edwards, 9 Wheat. 489. This does not apply, however, where the 
 recording of an instrument is not legally requisite, or it is defectively 
 executed or acknowledged : cases in notes to Le Neve v. Le Neve, ut 
 supra ; Moore v. Auditor, 3 Henn. & Munf. 232 ; Sumner v. Rhodes, 
 14 Conn. 135 ; Walker v. Gilbert, 1 Freem. Ch. 85 ; Harper v. Reno, 
 Id. 323; Isham v. Bennington Iron Co. 19 Verm. 230; Graham v. 
 Samuel, 1 Dana, 166 ; Pitcher v. Barrows, 17 Pick. 361 ; Thomas v. 
 Grand Gulf Bank, 9 Sm. & M. 201 ; Green v. Drinker, 7 W. & S. 
 440 ; Shults v. Moore, 1 McLean, 520 ; Brown v. Budd, 2 Carter 
 (Ind.) 442 ; Choteau v. Jones, 11 Illinois, 300 ; Work v. Harper, 24 
 Mississ. 517; Pope v. Henry, 24 Verm. 560; Lally v. Holland, 1 
 Swan, 396 ; nor where it is recorded in a different county from that in 
 which the lands lie : Astor v. AT ells, 4 Wheat. 466 ; Kerns v. Swope, 
 2 Watts, 75 ; or, a fortiori, in another State : Hundley v. Mount, 8 S. 
 & M. 387 ; Lewis v. Baird, 3 McLean, 56 ; Crosby v. Huston, 1 Texas, 
 203. But in De Lane v. Moore, 14 Hen. U. S. 253 ; U. S. Bank v. 
 Lee, 13 Peters, 107 ; Crenshaw v. Anthony, Mart. & Yerg. 110 ; Bruce 
 V. Smith, 3 H. & J. 449 ; Crosby v. Huston, 1 Texas, 203, it was held 
 that the registration of a settlement of personal property in the State 
 where the parties reside at the time, and the property then was, is valid 
 as against creditors and purchasers in another State, into which the pro- 
 perty is afterwards removed : though see Hundley v. Mount, 8 Sm. & M. 
 387. The record also is not notice to those not claiming title under the 
 
OF PRIORITIES, ETC. 359 
 
 purchaser or mortgagee' for valuable *considera- 
 
 tion, unless a memorial thereof be registered, in 
 
 [*154] 
 
 same grantor. Stuyvesant v. Hall, 2 Barb. Ch. 151; Lightner v. 
 Mooney, 10 Watts, 412 ; Woods v. Farmere, 7 Watts, 382 ; Bates v. 
 Norcross, 14 Pick. 224 ; Crockett v. Maguire, 10 Missouri, 34 ; Tilton 
 V. Hunter, 24 Maine, 29 ; Leiby v. Wolfe, 10 Ohio, 80. An unre- 
 corded deed is, in general, good between the parties. 4 Kent, 456, 
 cases cited. And where a subsequent purchaser has 'knowledge of the 
 existence of such a deed, it is equivalent, as to him, to registry, and is 
 treated as such, both at law and in equity. Jackson v. Leek, 19 Wend. 
 339 ; Jackson v. Sharp, 9 John. K. 163 ; Porter v. Cole, 4 Maine, 20 ; 
 Farnsworth v. Childs, 4 Mass. 637 ; Martin v. Sale, Bail. Eq. 1 ; Correy 
 V. Caxton, 4 Binney, 140 ; Solms v. McCulloch, 5 Penn. St. 473 j Pike 
 V. Armstead, 1 Dev. Eq. 110 ; Vanmeter v. McPaddin, 8 B. Monr. 
 442; Ohio Ins. Co. v. Ledyard, 8 Alab. 866; McRaven v. McGuire, 9 
 Sm. & M. 34 ; McConnel v. Bead, 4 Scam, 117 ; Bearing v. Ligbtfoot, 
 19 Alab. 28 ; McCuUough v. Wilson, 21 Penn St. 436 ; Center v. P. 
 & M. Bank, 22 Alab. 743 ; Gibbes v. Cobb, 7 Rich. Eq. 54 ; notes to 
 Le Neve v. Le Neve, ut supra. But see in Ohio as to mortgages, 
 Mayham v. Coombs, 14 Ohio, 428. But the authorities are at variance 
 with regard to the character of the notice which will postpone a re- 
 corded to a prior unrecorded deed. The cases in England, since Hine 
 V. Dodd, 2 Atkyns, 275, place the relief given against the subsequent 
 purchaser, which is there only in equity, on the ground of fraud (see 
 Le Neve v. Le Neve, ut supra ; Fleming v. Burgin, 2 Ired. Eq. 584 ; 
 Ohio Ins. Co. V. Ross, 2 Maryl. Ch. Deo. 35) ; on which alone, it is 
 supposed, the Act of Parliament could be broken in upon ; and there- 
 fore, require clear proof of actual notice, which is considered equivalent 
 to fraud. In some of the States this doctrine has been adopted, and 
 constructive notice is held to be insuflScient. Norcross v. Widgery, 2 
 Mass. 509 ; Bush v. Golden, 17 Conn. 594 ; Harris v. Arnold, 1 Rhode 
 Island, 125; Frothingham v. Stacker, 11 Missouri, 77; Martin v. Sale, 
 Bail. Eq. 1; Fleming v. Burgin, 2 Ired. Eq. 584; Ingram v. Phillips, 
 5 Strobh. R. 200 ; see Burt v. Cassety, 12 Alab. 734 ; McCaskle v. 
 Amarine, 12 Alab. 17; Hopping v. Burnham, 2 Green (Iowa), 39. 
 Thus, possession of the prior grantee, except, perhaps, where distinctly 
 brought home to the knowledge of the purchaser, is held to be insuffi- 
 cient. Harris v. Arnold ; Frothingham v. Stacker. In other States, 
 there are statutory provisions to the same effect. SpofEord v. Weston, 29 
 
360 ADAMS'S DOCTEINE OF E.QUITT. 
 
 the manner thereby prescribed, "before the registering of 
 the memorial of the deed under which such subsequent 
 purchaser or mortgagee shall claim. And that all de- 
 vises by will shall be adjudged fraudulent and void 
 against subsequent purchasers pr mortgagees, unless a 
 memorial of such 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 
 
 Maine, 140 ; Butler v. Stevens, 26 Maine, 489 ; Curtis v. Mund, 3 Met- 
 calf, 405 ; Hennessey v. Andrews, 6 Cush. 170. In Pennsylvania and 
 New York, the decisions are not consistent. In Scott v. G-allagher, 14 
 S. & R. 333, and Boggs v. Varner, 6 Watts & S. 469, the language of 
 the Court is in accordance with the doctrine just stated. But there is 
 no doubt that in the former state, open and notorious possession is suffi- 
 cient notice of an unrecorded deed. Krider v. Lafferty, 1 Whart. 303; 
 Eandall v. Silverthorn, 4 Penn. St. 173. So in New York, Tuttle v. 
 Jackson, 6 Wend. 213, has established, contrary to Dey v. Bunham, 2 
 J. C. E.. 182, and other cases, that constructive notice is enough to post- 
 pone a subsequent purchaser. See Troup v. Hurlbut, 10 Barb. S. C. 
 354. And in Grimstone v. Carter, 8 Paige, 421, it was held in gene- 
 ral, that equities and agreements to convey, were not within the record- 
 ing acts. In Maryland, in the case of Price v. McDonald, 1 Maryl. B. 
 414, a similar doctrine was held by the Court of Appeals ; though in 
 Ohio Ins. Co. V. Ross, 2 Maryl. Ch. Dec. 35, and Gill v. McAttee, Id. 
 268, the English rule was supported and followed by Chancellor John- 
 son. That possession is notice, has been also held in Webster v. Mad- 
 dox, 6 Maine, 256 ; Kent v. Plummer, 7 Id. 464 (before the statute 
 referred to above) j Buck v. Holloway, 2 J. J. Marsh. 163 ; Hopkins 
 V. Garrard, 7 B. Monr. 312 ; Colby v. Kenniston, 4 N. H. 262 ; Wil- 
 liams v. Brown, 14 Illin. 200; Wyatt v. Elam, 19 Geo. 335; Vaughn 
 V. Tracy, 22 Mo. 4; see also Bell v. Twilight, 2 Foster, N. H. 500; 
 Griswold v. Smith, 10 Vermont, 452 ; and in Landes v. Brant, 10 
 How. U. S. 348 ; where, indeed, the point was considered to be unques- 
 tioned. This, however, is a mistake. This subject is treated of with 
 great ability and acuteness in the notes to Le Neve v. Le Neve, ut supra, 
 where the cases will be found collected.] 
 
OP PRIORITIES, ETC. 361 
 
 no statute, judgment, or recognizance (other than such 
 as shall be entered into in the name and upon the pro- 
 per 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, (a?) 
 
 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 obtained, 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 operation 
 of the acts; and it is perhaps difficult to reconcile it alto- 
 gether to principle. For if it be assumed that the un- 
 registered conveyance evidences a mere legal title, invali- 
 dated 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 evidences an equitable title by contract, 
 which the want of registration has deprived of legal 
 completeness, it is difficult to see why the same degree 
 of *notice, which would bind in other cases, 
 should not bind in this, (y) '- J 
 
 The question with respect to undocketed judgments 
 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 alphabetical docket, and 
 
 (x) 3 Sug. V. & P. e. xxi, s. 5. 
 
 (y) Jolland v. Stainbridge, 3 Ves. 478 ; Wyatt v. Barwell, 19 Ves. 
 435 ; 3 Sug. V. & P. 372-3 ; Tyrrell's Suggestions, 230. 
 
362 ADAMS*S DOCTRINE OF EQUITY. 
 
 that no undocketed judgment should aflfect any lands or 
 tenements as against purchasers or mortgagees. (2) The 
 first decision in favor of the undocketed judgments was, 
 that if the purchaser 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 principle ; 
 and it is perhaps attended with the more diflBculty, 
 because the undocketed judgment is only an invalid title 
 by an act of law, and is not, like an unregistered convey- 
 ance, 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, and a new method of re- 
 gistration substituted ; (6) and it is declared that notice 
 shall be immaterial, (c) 
 
 A remarkable illustration of the doctrines 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 he does not, so 
 r*i KR-i f'^.r 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 respon- 
 
 (z) 4 & 5 Wm. & Mary, c. 20 ; 7 & 8 Wm. 3, c. 36. 
 
 (a) Davis v. Strathmore, 16 Ves. 419 ; 2 Sug. V. & P. 394. 
 
 (i) 1 & 2 Vict. c. 110. (c) 3 & 4 Vict. e. 82. 
 
OF PRIOEITIES, ETC. 363 
 
 sible for aiding it.{d) 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 sub- 
 sequent application, (e) In order to obviate this incon- 
 
 (d) Watkins v. Cheek, 2 S. & S. 199 ; Eland v. Eland, 4 M. & C. 
 420, 427. (e) 3 Sug. V. & P. 158. 
 
 ^ [Where there is a general charge or power to sell for debts, or for 
 debts and legacies, the purchaser is not bound to look to the application 
 of the purchase-money. Williams v. Otey, 8 Humph. 568 ; Garnett v. 
 MaeoD, 6 Call, 308 ; Bruch v. Lantz, 2 Rawle, 392 ; Cadbury v. Duval, 
 10 Penn. St. 267 ; Dalzell v. Crawford, 1 Parson's Eq. 57 ; Hauser v. 
 Shore, 5 Ired. Eq. 357 ; Gardner v. Gardner, 3 Mason, 178 ; Andrews 
 V. Sparhawk, 13 Pick. 393. So, as to legacies, where there is a trust 
 for reinvestment, or the application cannot be made immediately. 
 Wormley v. Wormley, 8 Wheat. 421 ; Coonrod v. Coonrod, 6 Hamm. 
 114 ; Hauser v. Shore, 5 Ired. Eq. 357. But where the trust is for 
 the payment of scheduled or specified debts, the cases generally hold 
 that the purchaser is bound to see to the application of purchase-money. 
 Gardner v. Gardner, 3 Mason, 178 ; Cadbury v. Duval, 10 Penn. St. 
 267 ; Dalzell v. Crawford, 1 Pars. Eq. 57 ; Wormley v. Wormley, 8 
 Wheat. 422 ; Duffy v. Calvert, 6 Gill, 487 ; though see the remarks of 
 Mr. Wallace's note to Elliot v. Merryman, 1 Lead. Cas. Eq. 75, as to 
 devises for payment of debts. It has also been doubted by Mr. Wallace, 
 ut sup., whether under a devise for the payment of legacies, simply, the 
 rule would be applied in this country, inasmuch as the debts of a dece- 
 dent are always an implied charge on land here ; and therefore, it is 
 supposed, such a charge would be equivalent to a devise for the pay- 
 ment of both debts and legacies. But the analogy between the two 
 cases can only hold, if, on a sale for the payment of legacies alone, the 
 lien of debts would be discharged, which is by no means clear. In DuflFy 
 v. Calvert, 6 Gill, 487, and Downman v. Rust, 6 Rand. 587, accord- 
 ingly, a purchaser was held bound to see to the application of the pur- 
 chase-money under such circumstances.] 
 
364 Adams's doctrine of equity. 
 
 venience, 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 implication, if the 
 nature of the trust be inconsistent with the contrary 
 view. If, for instance, the sale be directed at a time 
 when the distribution could not possibly be made, it will 
 be assumed that the trustees were meant to give a dis- 
 charge, for the money cannot be paid to any other per- 
 son. (/) The same assumption is made on a trust for 
 general payment of debts, or for payment of debts and 
 legacies ; for it is impossible that the purchaser should 
 ascertain the creditors ; 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 applica- 
 r*l571 ^^^^ ^^ ^^^ purchase-money, when he *purchases 
 bona fide, and without notice that there are no 
 debts. (A)' 
 
 (/) Balfour v. Welland, 16 Ves. 151 ; Sowarsby v. Lacy, 4 Mad. 
 142. 
 
 (g) Forbes v. Peacock, 1 Ph. 717 ; Sug. V. & P. c. xvii, s. 1. 
 (/i) 3 Sug. V. & P. c. xvii, s. 2. 
 
 ' [It has been recently held, however, that it is immaterial on a trust 
 for sale for the payment of debts and legacies, that the purchaser has 
 notice there are no debts, or even that there were none at the testator's 
 death. The principle in such cases was said by the Lord Chancellor to 
 be, that the testator in creating such a trust is to be supposed to have 
 
OF PRIORITIES, ETC. 365 
 
 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, (i) 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 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 em- 
 ployed the same solicitor, be held to have notice of the 
 fraud, any more than the party on whom it was first 
 committed, (k) ^ 
 
 The ordinary instances of notice by actual inform a- 
 
 (i) Puller V. Bennett, 2 Hare, 394. 
 (Ic) Kennedy v. Green, 3 M. & K. 699. 
 
 intended to give his trustees full power of receiving and applying the 
 money ; and not to rest upon the ground of the difficulty a purchaser 
 would have in determining whether there were any debts or not. Stroug- 
 hill V. Anstey, 1 De G. Macn. & Gord. 635.J 
 
 ^ [See on the subject of notice, notes to Le Neve v. Le Neve, 2 Lead. 
 Cas. Eq. p. i, 160.] 
 
 ° Knowledge acquired by an agent, in the course of his agency, is 
 notice to the principal. Hough v. Kiehardson, 3 Story Kep. 660 ; Bow- 
 man V. Wathen, 1 How. 195 ; Astor v. Wells, 4 Wheat. 466 ; Wester- 
 velt V. Haff, 2 Sandf. Ch. 98; Watson v. Wells, 5 Conn. 468; Bracken 
 V. Miller, 4 Watts & Serg. 108; see Hood v. Fahnestock, 8 Watts. 489. 
 [But it must generally be acquired in the same transaction. Bracken 
 V. Miller, 4 Watts & Serg. Ill ; Henry v. Morgan, 2 Binn. 497 ; Mar- 
 tin V. Jackson, 27 Penn. St. 504. Where the agent acts for both par- 
 ties, it is notice to the purchaser. Sergeant v. IngersoU, 15 Penn, St. 
 343 J 7 Id. 340.] 
 
366 ADAMS'S DOCTRINE OP EQUITY, 
 
 tion do not require any special remark. But it should 
 be observed, that under this head is included notice by 
 lis pendens or an interlocutory decree.^ For it is pre- 
 
 1 [Murray v. Ballou, 1 John, Ch. 566; Murray v. Lylburn, 2 Id. 441; 
 Zeiter v. Bowman, 6 Barb. S. 0. 133; Owongs v. Myers, 3 Bibb, 279; 
 Boiling V. Carter, 9 Alab. 921 ; Green v. White, 7 Blackf. 242; Tongue 
 V. Morton, 6 Harr. & John. 21; Walker v. Butz, 1 Yeats, 574. It 
 has been held, however, in one or two cases, that the doctrine of Us 
 pendens was inconsistent with the policy of the recording or registration 
 acts in this country. Newman v. Chapman, 2 Band. 93 ; City Council 
 V. Page, Spear's Eq. 159.] 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. Kep. 180; see Green v. Slayter, 4 John. C. E. 38; 
 but the doctrine does not apply in a case where the Court has no juris- 
 diction 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 perfect : Hopkins v. McLaren, 4 
 Cow. 667; Clarkson v. Morgan, 6 B. Monr. 441. Lis pendens is notice 
 only in relation to the property 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. 158; and a suit not prosecuted 
 to decree or judgment, is not constructive notice to a person who is not 
 & pendente lite purchaser : Alexander v. Pendleton, 8 Cranch, 462; but 
 the pendency of a suit duly prosecuted, is notice to a purchaser of the 
 subject of a suit, so as to bind his interest; and a pendency of a suit 
 commenced from the service of the subpoena, after the bill is filed. 
 Murray v. Ballou, 1 John. Ch. R. 566 ; [Goodwin v. McGehee, 15 
 Alab. 232 ; Lytle v. Pope, 11 B. Monr. 818. Publication as to a non- 
 resident defendant is equivalent to service of subpoena. Chaudron v. 
 Magee, 8 Alab. 570.] Notice, however, by lis pendens, cannot continue 
 after a final decree or judgment. Blake v. Heyward, 1 Bailey's Eq. 208; 
 Turner v. Crebill, 1 Ohio, 372 ; [see Winborn v. Gorrell, 3 Ired. Eq. 
 117. See on this subject Hill on Trustees, 3d Am. Ed. 764; notes to 
 Le Neve v. Le Neve, 2 Lead. Cas. Eq. 1st Am. Ed. p. i, 155. The 
 
OF PRIORITIES, ETC. 367 
 
 sumed that legal proceedings during their continuance, 
 are publicly known throughout the realm. But no lis 
 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 no- 
 tice ; (m) nor a Jiat in bankruptcy ; (to) nor the Court 
 Eolls of a manor ;(o) nor the registration of a deed ; nor 
 the docketing or registration of a judgment. But if it 
 appear that a search was actually" made, it will be pre- 
 sumed that the entry was found, and the purchaser will 
 be affected with notice of its contents. *In the 
 absence of any actual information of the equity, ^ J 
 the party may also be affected with notice by informa- 
 tion 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 occupa- 
 tion 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 possessor's claim on the 
 estate. If he knows of any instrument, forming directly 
 
 (J) 3 Sug. V. & P. 458 ; Shallcross v. Dixon, 5 Jarm. on Conveyan- 
 cing, 493 ; 2 Vict. c. 11, s. 7. 
 (m) 2 Sug. V. & P. 461. 
 In) Hithcox v. Sedgwick, 3 V. & P. 467. 
 (o) 3 V. & P. 478. 
 
 doctrine of Us pendens has been recently considered in the Court of Ap- 
 peal in England, and finally decided not to stand on the ground of notice 
 express or implied, but to follow from the general rule that pending liti- 
 gation, neither party can be permitted to alienate the contested property, 
 so as to affect the rights of the other. The doctrine in question was 
 therefore held, not to apply as between co-defendants. Bellamy v. Sabine, 
 3 Jur. N. S. 943.] 
 ^ [See notes to Le Neve v. Le Neve, 2 Lead. Gas. Eq. ut sup. J 
 
368 Adams's doctrine of equity. 
 
 or presumptively a link in the title, he will be presumed 
 to have examined it, and therefore to have notice of all 
 other instruments or facts to which an examination of 
 the first could have led him. But he cannot be pre- 
 sumed to have examined instruments which are not di- 
 rectly 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 predicated of al- 
 most any instrument'; e. g., if he be informed that the 
 vendor made a settlement on his marriage, but is in- 
 formed 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 evi- 
 dence of fraud ; but, though evidence of fraud, it is not 
 the same thing as fraud. The party may have acted 
 hona 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 
 p. _^ held *in a Court of equity to amount to fraud, , 
 •- -' will not affect a purchaser 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 un- 
 dervalue, coupled with a recital that it was for faithful 
 
OF PRIORITIES, ETC. 369 
 
 services, was a sufficient notice to the purchaser of such 
 lease to put him on his guard, (^j) 
 
 We have now considered the three rules of superior 
 equity originating in contracts in rem, wilful misrepre- 
 sentation, and purchasers 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 ana- 
 logy of law, will prevail. 
 
 If there be a legal right in either party, the Court of 
 Chancery remains neutral ; as, for example, if the pur- 
 chaser 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 assignment 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, *. 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 computation at the real, atid not 
 
 (p) Jones V. Smith, 1 Hare, 43; 1 Ph. 244; West v. Eeid, 2 Hare, 
 249; Borell v. Dann, 2 Hare, 440; Kerr y. Lord Dungannon, 1 Conn. 
 & L. 335 ; 3 Sug. V. & P. 468^80. 
 
 ' [See Story, J., in Plagg v. Mann, 2 Sumn. 557; Gibler v. Trimble, 
 14 Ohio, 323. In Sergeant v. Ingersoll, 7 Penn. St. 340 ; 15 Id. 343, 
 however, where the purchaser of an equitable title got the legal title from 
 the trustee at the same time, he was held, nevertheless, bound by a cove- 
 nant of the cestui que trust, of which he had no notice, the Court being 
 of opinion under the circumstances that the separation of the legal and 
 equitable titles was so suspicious a circumstance, that it ought to have 
 put him on inquiry.] 
 
 24 
 
370 ADAMS'S DOCTRINE OF EQUITY. 
 
 at the extended value ; but this enactment, as well as 
 the other statutory changes in respect to judgment, is 
 subject to an exception in favor of purchasers without 
 notice. (9) 
 
 The recent enactment as to the cesser of outstanding 
 terms, when they become attendant on the inheritance, 
 has *been already explained. (/•) If a purchaser 
 L -I without notice of a prior equity, fails in obtain- 
 ing the legal estate, he may still protect himself to some 
 extent by getting possession of the title deeds, whether 
 of the fee or of an outstanding term ; for the possession 
 of the deeds, though not equivalent to ownership, is so 
 far available at law, that if he can otherwise get posses- 
 sion 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 claina. («) 
 If he cannot obtain either a conveyance or the deeds, 
 he may take his chance of defects in his opponent's evi- 
 dence, and will not be compelled to answer a bill of dis- 
 covery, (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.' 
 
 (j) 1 & 2 Vict. c. 110 ; 2 & 3 Vict. c. 11, s. 5. 
 (?•) 8 & 9 Vict. c. 112, supra, Attendant Terms, 
 (s) Head v. Egerton, 3 P. Wms. 280, cited 2 Ves.& B. 88; Wallwyn 
 V. Lee, 9 Ves. 24 ; Bernard v. Drought, 1 Moll. 38. 
 (0 3 Sug. V. & P. c. xxiv. 
 
 ' [See Bellas v. McCarty, 10 Watts, 13. Where a purchaser, the day 
 after the completion of his purchase, deposited the title deeds by way of 
 
OF PRIORITIES, EM. 371 
 
 The methods by which a title may be perfected in 
 equity differ according to the subject-matter of convey- 
 ance. Where an equity of redemption, whether in real 
 or personal estate, is the subject, the conveyance will be 
 perfected by the joinder of the mortgagor, and by his 
 declaration that the purchaser shall be entitled to re- 
 deem. («) Where a trust estate in realty is the subject, 
 the conveyance will be perfected if the trustee acknow- 
 ledge a trust for the purchaser, either by executing a 
 declaration to that eflfect, or by joining in the convey- 
 ance of his cestui que trust, though without purporting 
 to pass his own estate, (v) Where a trust *estate 
 in personalty or a chose in action is the subject, L ■^"■'•J 
 the assignment is perfected by notice to the trustee or 
 debtor, which operates as a constructive transfer of pos- 
 session, (to)' If, in any of these cases, the party acquir- 
 ing an equitable interest neglects to perfect it in the 
 manner pointed out, he incurs the risk of some subse- 
 quent purchaser without notice being more diligent, and 
 thus acquiring a priority over him. 
 
 It has been contended, that on the conveyance of a 
 
 (tt) 3 Sug. V. & P. 422. 
 
 {v) Maundrell v. Maundrell, 10 Ves. 246, 270 ; Wilmot v. Pike, 5 
 Hare, 14, 22. 
 
 (m) Dearie v. Hall, 3 Kuss. 1; Foster v. Cockerel!, 3 CI. & P. 456; 
 Timson v. Eamsbottom, 2 K. 35 ; Meux 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. 
 
 equitable mortgage, the mortgagee was held to have a better equity than 
 the vendor as to his lien for unpaid purchase-money. Rice v. Rice, 28 
 L. J. Ch. 289.] 
 
 ^ [Notice to the debtor is not generally considered necessary in the 
 United States to perfect the assignment of a chose in action. See ante, 
 53, note.] 
 
372 ADAMS''S DOCTRINE OF EQUITY. 
 
 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 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 there- 
 fore can have no greater effect in equity than possession 
 without conveyance would have had at law. (a;) 
 
 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 pur- 
 chaser 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 
 r*iR9i ^*^°^ ^'^^ protection *until he has ascertained that 
 L -^ danger exists ; and his right to obtain it will 
 continue, notwithstanding the institution of a suit to 
 settle the priorities of the conflicting claimants. A 
 decree, however, to settle priorities, is a bar to any 
 protection being afterwards gained ; for it is in effect a 
 judgment for all the claimants, according to the order 
 in which they then stand. (2/) 
 
 (x) Peacock v. Burt, Coote on Mortgages, Appendix ; Jones v. Jones, 
 8 Sim. 633 ; Wilmot v. Pike, 5 Hare, 14 ; Wiltshire v. Rabbits, 14 Sim. 
 76; Ex parte Knott, 11 Ves. 609, 612 ; 2 Sug. V. & P. 83. 
 
 Q/) Brace v. Duchess of Marlborough, 2 P. Wms. 491 j "Wortley v. 
 
OF PRIORITIES, ET.C. 373 
 
 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 individually, 
 the qlaims 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 testi- 
 mony may be sustained, notwithstanding that the defen- 
 dant is a purchaser 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. {hy 
 
 Birkhead, 2 Ves. 571 ; Belchier v. Butler, 1 Eden, 523 ; Ex parte 
 Knott, 11 Ves. 609, 619. 
 
 (2) Brace v. Duchess of Marlborough, 2 P. Wms. 491 ; Frere v. 
 Moore, 8 Price, 475 ; commeuted on, 3 Sug. V. & P. 81, 422 ; Jones 
 V. Jones, 8 Sim. 633. 
 
 (a) Collins v. Archer, 1 K. & M. 284 ; 3 Sug. V. & P. 495 ; Hare 
 on DiseoTeiy, 98. 
 
 (6) Seaborne v. Clifton, cited 6 Ves. 263 ; 3 Sug. V. & P. 438. 
 
 ' [The prevailing doctrine in the United States is, that the purchaser 
 of an equitable title takes it subject to all prior equities. Snelgrove v. 
 Snelgrove, 4 Desaus. 274; Win born v. Gorrell, 3 Ired. Eq. 117; Shirras 
 V. Gaig, 7 Cranch, 48 ; Vattier v. Hinde, 7 Peters, 252 ; Boone v. 
 Chiles, 10 Peters, 177; Hallett v. Collins, 10 How. U. S. 185; Chew 
 V. Barnet, 11 Serg. & R.'389 ; Kramer v. Arthurs, 7 Penn. St. 165; 
 Sergeant v. Ingersoll, Id. 347 ; S. C. 15 Penn. St. 343. And the plea 
 
374 ADAMS'S DOCTRINE OF EQUITY. 
 
 The maxim of non-interference between equal equities 
 
 of purchase without notice, would not therefore be sufficient in such 
 case. But the principle just before stated in the text (p. 169), that 
 " if there be no legal right in either party," the Court " acts on the ana- 
 logy of law, and gives priority to that title which most nearly approxi- 
 mates to a legal one," was substantially followed in Bellas t. MoCarty, 
 10 Watts, 13, where a purchaser of the equitable estate in land under 
 articles of agreement, who had recorded his deed (such interest bein" 
 within the recording acts of Pennsylvania), was preferred to a prior 
 sheriff's vendee of the same interest, who had neglected to have his 
 deed registered. So, in Flagg v. Mann, 2 Sumn. 486, it was the opinion 
 of Story, J., though the point was not directly decided, that a purchaser 
 of an equity who subsequently obtains a conveyance from the trustee, is 
 protected against any antecedent secret trust of which he has no notice. 
 See also the note to Bassett v. Nosworthy, 2 Lead. Cas. Eq. part i, 97, 
 where this subject is discussed ; though, notwithstanding some doubts 
 suggested by the learned American editor of the work above cited, it 
 appears to be clear upon the authorities both in this country and in 
 England, that, except in the cases just put, among equal equities, the prior 
 in time, whether it be original or intermediate, is the prior in right. 
 
 It has been held in some cases in the United States, following certain 
 of the English decisions, such as Williams v. Lambe, 3 Bro. C. C. 264; 
 and Collins v. Archer, 1 Buss. & Mylne, 284, that a plea of a purchase 
 for a valuable consideration is no defence in equity to a claim under a 
 legal title. Snelgrove v. Snelgrove, 4 Desaus. 274 ; Blake v. Heyward, 
 1 Bail. Eq. 208 ; Larrowe v. Beam, 10 Ohio, 498 ; Jenkins v. Bodley, 
 1 Sm. & M. Ch. 338 ; Wailes v. Cooper, 24 Mississ. 208; Brown v. 
 Wood, 6 Rich Eq. 155. But an opposite doctrine has been held in a 
 number of cases, and principally in Wallwyn v. Lee, 9 Ves. 24 ; Joyce 
 V. Be Moleyns, 2 Jones & Lat. 374; Att.-Gen. v. Wilkins, 17 Jur. 885; 
 see also Flagg v. Mann, ut supr. In the very recent case of Finch v. 
 Shaw, 18 Jur. 935 ; 19 Beav. 500, an attempt was made to reconcile 
 the conflicting authorities on this question. " The true distinction,'' 
 said the Master of the Rolls, " appears to be this : where the suit is for 
 the enforcement of a legal claim, and the establishment of a legal claim, 
 there, although the Court may have jurisdiction in the matter, it will 
 leave the parties to their remedies at law ; but where the legal title is 
 perfectly clear and distinct, and attached to that legal title is an equit- 
 able remedy, or an equitable right, which caii only be enforced in this 
 Court, I am not aware of any case in which the legal title being clearly 
 
OP PRIORITIES, ETC. 375 
 
 is the foundation of the doctrine of Tacking in Equity.' 
 The *cases to which this doctrine applies are 
 those where several incumbrances have been '- -I 
 created on an estate, and two or more of them, not 
 iniEQediately 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 incum- 
 brances, and postpone the other to his own charge, or 
 whether the party holding the two may tack or consoli- 
 date them, so that the earlier in date cannot be sepa- 
 rately 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 
 
 established, this Court refuses to enforce the equitable remedy which 
 attaches to it." It was accordingly decided that the plea of purchase 
 for a valuable consideration was no answer to a bill by a legal mortgagee 
 for foreclosure. This case was affirmed in the House of Lords, under 
 the name of Colyn v. Finch, 26 L. J. Ch. 65.] 
 
 ^ 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. McClanachan, 2 Grat. 
 Va. R. 280 ; Brazee and others v. Lancaster Bank, 14 Ohio, 318 ; Os- 
 born V. Carr, 12 Conn. 196 ; [Anderson v. Neff, 11 Serg. & K. 223; it 
 being inequitable and unjust in itself, and the system of registration 
 being adopted throughout the Union, though the point seems doubtful in 
 Kentucky. Nelson v. Boyce, 7 J. J. Marsh. 401 ; Averill v. Guthrie, 
 8 Dana, 82. In some of the States, further advances to the mortgagee, 
 for which a bond binding the heirs has been given, may be tacked to the 
 mortgage as against an heir or devisee, though not as against interven- 
 ing incumbrancers. See note to Marsh v. Lee, 1 Lead. Cas. Eq. 431, 
 1st Am. ed., where the cases are collected.] 
 
376 Adams's doctrine of equity. 
 
 example, a third mortgagee, having advanced his money 
 without notice of a second mortgage, should afterwards 
 get a conveyance of the legal estate from the first mort- 
 gagee, the second mortgagee would not be permitted to 
 redeem the first mortgage, after forfeiture at law, with- 
 out 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 a prefer- 
 able claim to the legal estate ; (c) that both the claims 
 shall be vested in him in the same character, 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 ad- 
 vances had been made after notice of an intermediate 
 *charge.(e) It may, however, be observed, that 
 *- -I in such a case the priority of the future ad- 
 vances 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 ad- 
 
 (c) Willoughby v. Willoughby, 1 Term Rep. 763 ; 3 Sug. V. & P. 
 83. 
 
 (d) Barnett v. Weston, 12 Ves. 130 ; Morret v. Paske, 2 Atk. 52. 
 
 (e) Gordon v. Graham, 7 Vin. Abr. 52, E. pi. 3 ; Blunden v. Desart, 
 2 Conn. & L. Ill, 131. 
 
 ' [As to the incorporation of future advances in a mortgage security, 
 see ante, note to page 110.] 
 
OF PRIORITIES, ETC. 377 
 
 vanced on the credit of the estate, is obviously 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^advances on judgment or 
 statute, where the creditor was previously a mortgagee ; 
 for it is presumed in such a case that the prospect of tack- 
 ing was in his contemplation at the time. It does not, 
 on the other hand, include advances on judgment or sta- 
 tute, 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 mort- 
 gage, convert a personal loan into a real incumbrance. (/) 
 It is otherwise if redemption is asked by the debtor him- 
 self; for then the equity of tacking is in the nature of 
 an equitable elegit, and is the proper method of enforc- 
 ing the creditor's claim, {g) 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 representative. 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 payment of debts. *If 
 the heir or devisee has aliened the equity of re- •- J 
 demption, it is not assets in the hands of the alienee, 
 and the mortgage may be redeemed alone. (7t) 
 
 (/) Brace v. Duchess of Marlborough, 2 P. Wms. 491 ; Baker v. 
 Harris, 16 Ves. 397 ; Ex parte Knot, 11 Ves. 609, 617. 
 
 {g) Supra. Equitable fieri facias and elegit. 
 
 (h) Colemari v. Winch, 1 P. Wms. 775 ; Morret v. Paske, 2 Atk. 
 52; Adams v. Claxton, 6 Ves. 226; Coote on Mortgages, 402. 
 
378 ADAMS S DOCTRINE OF EQUITY. 
 
 It is also held, that an equity in the nature of tacking 
 accrues 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 redemption 
 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.(i) 
 
 (i) Margrave 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, 3 Y. & C. 597; Grugeon v. Gerrard, 4 Y. & 
 C. 119; Goote on Mortgages, 483-491. 
 
OF EE-EXECUTION, ETC. 379 
 
 *CH AFTER T. [*166] 
 
 OP RE-EXECUTION, CORRECTION, RESCISSION, AND 
 CANCELLATION. 
 
 The subjects hitherto considered in the present Book 
 are the equities of trust, contract, and mortgage, and 
 the incidental doctrines of conversion and priority. In 
 considering these subjects we have assumed, that the 
 original transaction and its evidence are unirapeached 
 and clear, and that the relief asked is merely the en- 
 forcement of a consequent equity. If the instrument 
 evidencing a transaction is destroyed 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 
 instrument re-executed, the error corrected, or the vicious 
 transaction rescinded and set aside. The equities for 
 such re-execution, correction, and rescission, like the 
 equity for performance in specie, are incapable of en- 
 forcement at common law, and fall, therefore, within the 
 province of the Court of Chancery. 
 
 The jurisdiction for re-execution and other similar re- 
 lief arises, not only on a destruction or concealment 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 
 
380 ADAMS'S DOCTRINE OF EQUITY. 
 
 preclude the plaintiff from recovering at law. If, for 
 instance, a conveyance to a purchaser has been acciden- 
 tally burned, so *that the purchaser is unable to 
 L -I show a title to the estate, the vendor may be 
 compelled to reconvey.(a)' 
 
 The most ordinary instances in which this jurisdiction 
 is exercised, are those of lost bonds and negotiable secu- 
 rities, the non-production of which would defeat an ac- 
 tion. And in these cases the decree 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 essential that an affidavit be annexed to the 
 
 (a) Bennett v. Ingoldsby, Finch, 262 ; 2 Sug. V. & P. 98. 
 
 ' [See Owen v. Paul, 16 Alab. 130.] Equity has jurisdiction wher- 
 ever a lost instrument is to he set up, notwithstanding that Courts of 
 law now exercise jurisdiction in the same cases. Shields v. Common- 
 wealth, 4 Hand. 541. And the loss of an article of agreement contain- 
 ing mutual covenants, is suflBcient to confer jurisdiction on a Court of 
 Chancery in favor of the injured party. Bolware v. Bolware, 1 Litt. 
 124. [But a hill for the re-execution of a deed of land lost or de- 
 stroyed, while in the possession of the grantee, cannot be sustained 
 unless there be some additional grounds for relief. Hoddy v. Hoard, 2 
 Carter, Ind. 474.J 
 
 The loss of a negotiable note furnishes sufficient ground for resorting 
 to Chancery to recover the amount. [Irwin v. Planters' Bank, 1 Humph. 
 145 ; Tindall v. Childress, 2 St. & Porter, 250 ; Smith v. Walker, 1 
 Sm. & Marsh. Ch. 432 ; Chewning v. Singleton, 2 Hill Eq. 371.] Bat 
 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 dili- 
 gence to obtain the money from the assignor. West v. Patton, Litt. Sel. 
 Cas. 405. [The general rule is the same as to bonds. Kerney v. Ker- 
 ney, 6 Leigh, 478 ; Harrison v. Turbeville, 2 Humph. 242 ; Rich v. 
 Catterson, 2 J. J. Marsh, 135. See as to statutory bonds, Webb v. 
 Bowman, 3 J. J. Marsh. 70.] 
 
 The finding of a lost note or bond after a suit in Chancery is insti- 
 tuted for its recovery, does not oust the Chancellor of his jurisdiction, 
 Crawford v. Summers, 3 J. J. Marsh. 300; [Miller v. Wells, 5 Mis. 6.] 
 
OF RE-EXECUTION, ETC. 381 
 
 bill, averring that the instrument is destroyed or lost, 
 or that 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 admitted 
 or proved at the hearing ; for the instrument, if in ex- 
 istence, would be cognizable at law, and the alleged loss 
 or destruction is the only ground for shifting the juris- 
 diction into Chancery. If the relief sought extends 
 merely to the delivery of the instrument, or is otherwise 
 such as can only be given in a Court of equity, the affi- 
 davit is not required, (b) We have already seen, that a 
 similar affidavit is requisite where a bill is filed for an 
 examination de bene esse, as auxiliary to an action at 
 law.(c) 
 
 The jurisdiction in the case of lost bonds originates 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 produce 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 law in 
 
 (6) Mitf. 124. (c) Supra, Examination de bene esse. 
 
 ' In a suit in Chancery, praying relief for a lost writing, though strictly 
 the party should make affidavit of loss ; [Chewing v. Singleton, 2 Hill, Eq. 
 371 ; Hill V. Lackey, 9 Dana, 81 ; Owen v. Paul, 16 Alab. 130 ; Penning- 
 ton V. The Governor, 1 Blackf 78 ;] yet, if the proof of the loss is clear, 
 the affidavit may be dispensed with. Grraham v. Haokwith, 1 A. K. 
 Marsh. 424 ; Parson's Admr. v. Wilson, 2 Ten. R. 260; Webb v. Bow- 
 man's Ex'rs, 3 J. J. Marsh. 73. 
 
382 ADAMS'S DOCTRINE OF EQUITY. 
 
 the event of loss ; but the *change of practice at 
 L J common law does not annul the jurisdiction in 
 equity. (d) 
 
 The jurisdiction in the case of negotiable securities 
 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 com- 
 menced on a bill or note, a plea called for, and the cause 
 brought on for trial, without production being offered or 
 made. And therefore, up to this point, there is no 
 ground for equitable interference. If, however, the bill 
 or note be negotiable, 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 secu- 
 rity. And therefore a Court of equity, which can en- 
 force a proper indemnity from the plaintiff, will enter- 
 tain jurisdiction to compel payment on such indemnity 
 being given. If the security be not negotiable, its loss 
 will not prevent the creditor from recovering at law, and 
 will not therefore create a jurisdiction in equity. (e) 
 
 The jurisdiction to correct written instruments which 
 have been erroneously framed is obviously appropriate to 
 equity alone. A Court of law may construe and enforce 
 the instrument as it stands, or may set it aside altogether 
 if there be adequate cause. But it cannot compel any 
 
 (c^) Ex parte Greenway, 6 Ves. 812 ; East India Company v. Boddam, 
 9 Ves. 464. 
 
 (e) Hansard v. Eobinson, 7 B. & C. 90 ; Macartney v. Graham, 2 Sim. 
 285 ; Walmsley v. Child, 1 Ves. 341 ; Glynn v. Bank of England, 2 
 Ves. 38 ; Mossop v. Eadon, 16 Ves. 430. 
 
OF CORRECTION. 383 
 
 alteration to be made ; and an avoidance of the entire 
 instrument would, in the case which we are now con- 
 sidering, be a nullification, and not an affirmance, of 
 what was really meant. ^ 
 
 1 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. Equity will correct 
 a mistake in an instrument against sureties as well as others. Butler v. 
 Durham, 3 Ired. Ch. 589. 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 ; [Whitehead v. Brown, 18 
 Alab. 682 ; Stone v. Hale, 17 Alab. 557 ; Davis v. Sogers, 33 Maine, 
 222 ; Wall v. Arrington, 13 Geo. 88 ; Godwin v. Yonge, 22 Alab. 553 ; 
 though see Dennis v. Dennis, 4 Rich. Eq. 307. But between cre- 
 ditors, who have equal equities, there can be no relief for a mistake. 
 Knight V. Bunn, 7 Ired. Eq. 77 ; Smith v. Turrentine, 2 Jones Eq. 
 258. 
 
 There is no question in the United States, as to the jurisdiction of a 
 Court of equity, to reform a written instrument on the ground of mistake, 
 upon parol evidence, where no statutory provision intervenes. Gillespie 
 V. Moon, 2 John. Ch. 585 ; Newsom v. Bufferlow, 1 Dev. Eq. 379 ; 
 Shipp V. Swann, 2 Bibb, 82 ; Bellows v. Stone, 14 N. H. 175 ; and 
 cases coUlected in note to Woollam v. Hearn, .2 Lead. Cas. Eq. part i, 
 1st Am. Ed. 570 ; Bradford v. Union Bank of Tennessee, 13 How. U. 
 S. 57; Eunnell v. Eead, 21 Conn. 586; Stedwell y. Anderson, 21 Conn. 
 139 ; Craig v. Kittredge, 3 Foster, 231 ; Lavender v. Lee, 14 Alab. 
 688; Wall v. Arrington, 13 Geo. 88. Though the evidence must be 
 very strong, clear, and precise, especially where it is against the answer. 
 Reese v. Wyman, 9 Geo. 430; Mosby v. Wall, 23 Miss. 81; Ligon's 
 Admr. v. Rogers, 12 Geo. 281 ; Goldsborough v. Ringgold, 1 Maryl. 
 Ch. 239 ; Beard v. Hubble, 9 Gill, 420 ; Lea's Bx'rs v. Eidson, 9 
 Gratt. 277 ; U. S. v. Monroe, 5 Mason, 572 ; Lyman v. Ins. Co. 17 
 John. 373 ; Preston v. Whitcomb, 17 Verm. 183 ; Greer v. Caldwell, 
 14 Geo. 207; Leikensdorfer v. Delphy, 15 Mo. 160; Carnall v. Wilson, 
 14 Ark. 482 ; Coffing v. Taylor, 16 111. 457 ; Wright v. Delafield, 23 
 Barb. (N. Y.) 498 ; Wemple v. Stewart, 23 Id. 498 ; Parley v. Bryant, 
 
384 ADAMS'S DOCTRINE OF EQUITY. 
 
 *The most obvious and easy exercise of this 
 ■- J jurisdiction is where an instrument has been exe- 
 
 32 Maine, 474. A Court of equity relieves more readily against a mis- 
 take in the execution of a power, than in a contract. Oliver v. Mutual 
 Comm. Marine Ins. Co. 2 Curtis, C. C. 277. 
 
 As to cases within the Statute of Frauds, however, the authorities in 
 the United States are somewhat conflicting where such parol evidence 
 is resorted to, not for the purpose of rescinding or resisting execution of 
 a contract, but in order to compel a specific performance with a varia- 
 tion, though the prevailing opinion appears to be that it is admissible. 
 See ante, note to p. 85, and the American note to Woollam v. Hearn, 
 ut supr. In the absence of mistake or fraud, a provision or stipulation 
 omitted from a contract by the express agreement of the parties, cannot 
 be made, in general, the ground of a reformation upon parol evidence. 
 See cases cited in American note to Woollam v. Hearn, ut supr. 561 ; 
 Ligon's Admr. v. Rogers, 12 Geo. 281 ; Chamness v. Crutchfield, 2 
 Ired. Eq. 148; Whitehead v. Brown, 18 Alab. 682; Dwight v. Pomeroy, 
 17 Mass. 303. But in Pennsylvania, it has been constantly held, that 
 contemporaneous verbal stipulations or provisions, on the faith of which 
 a contract has been entered into, will control its operation. Christ v. 
 Dififenbach, 1 Serg. & R. 464 ; Rearich v. Swinehart, 11 Penn, St. 238. 
 
 In general, a Court of equity will not relieve for ignorance or mistaie 
 of law. Hunt v. Rousmaniere, 1 Pet. S. C. 1 ; Shotwell v. Murray, 1 
 John. Ch. 512 ; Lyon v. Richmond, 2 John. Ch. 60 ; Brown v. Armi- 
 stead, 6 Rand. 594 ; Farley v. Bryant, 32 Maine, 474 ; Wintermute v. 
 Snyder, 2 Green Ch. 498 ; Hall v. Reed, 2 Barb. Ch. 503 ; Lyon v. 
 Sanders, 23 Mississippi, 533 ; Shafer v. Davis, 13 111. 395 ; Mellish 
 V. Robertson, 25 Verm. 603 ; Smith v. McDougal, 2 California, 586. 
 It has been said, that whatever exceptions there may be to this rule, 
 they will be found to be few in number, and to have something peculiar 
 in their character, and to involve other elements of decision. Hunt v. 
 Rousmaniere, ut supr. ; Bank U. S. v. Daniel, 12 Pet. 32. A distinc- 
 tion has sometimes been drawn between ignorance and mistake of law, 
 and the latter, when distinctly proved, has been held ground for inter- 
 ference. Hopkins v. Mazyck, 1 Hill Eq. 242 ; State v. Paup, 8 Eng. 
 Ark. 135; Lawrence v. Beaubin, 2 Bailey, 623; but see Champlinv. 
 Laytin, 18 Wend. 407. Mistake as to the legal effect of a conveyance, 
 will not be relieved against, where the conveyance is such as the parties 
 intended at the time. Hunt v. Rousmaniere, ut supr. ; Gilbert v. Gil- 
 
OF CORRECTION. 385 
 
 cuted 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 instrument 
 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 conveyance is improperly 
 made in supposed pursuance of an executory trust by 
 following its precise language, instead of working out by 
 a set of formal limitations 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 diffi- 
 culty 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 alleged, and extrinsic evi- 
 
 C/) Supra, Executory Trusts. 
 
 bert, 9 Barb. S. C. 532; Arthur v. Arthur, 10 Barb. S. C. 9; Mellish 
 y. Robertson, 25 Verm. 608; Farley v. Bryant, 32 Maine, 474; Larkins 
 T. Biddle, 21 Alab. 252. Where, however, one of the parties to a con- 
 tract knows that the other is ignorant of some matter of law involved in 
 it, and takes advantage of that ignorance, relief will be granted on the 
 ground of fraud. Cooke v. Nathan, 16 Barb. 342; Dill v. Shahan, 25 
 Alab. 694. This subject has been much discussed in the United States, 
 and there is no little diversity of opinion upon it. See Story on Equity, 
 § 136, &c., where it is treated of at large. 
 
 See upon this subject generally the note to Woollam v. Hearne, 2 
 Lead. Cas. Eq. part i.] 
 
 ^ [Where there is an express agreement for a policy of insurance in a 
 particular form, and the policy is drawn in a different form by the in- 
 surer, equity will reform, on the face of the instruments. Collett v. 
 Morrison, 9 Hare, 162 ; Powell v. Fireman's Ins. Co. 13 B. Monr. 311.J 
 
 25 
 
386 Adams's doctrine of equity. 
 
 dence tendered in proof that it was made, the hmits of 
 the equity for correction are more diflBcult to define. 
 The prima facie presumption of law is, that the written 
 contract shows the ultimate intention, and that all pre- 
 vious proposals and arrangements, so far as they may be 
 consistent with that contract, have been deliberately 
 abandoned. 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 unde- 
 signed insertion or omission, been prepared and executed 
 ^ in another. If, for instance, a contract were made 
 L ^ *for the purchase of certain hereditaments, 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 so- 
 licitor, being instructed to prepare a settlement of a par- 
 ticular sura, inserted 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 \i.{g) But it is 
 not SLiflficient 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 docu- 
 
 (gr) Beaumont v. Bramley, T. & E.. 41 ; Breadalbane v. Chandos, 2 
 M. & C. 711 ; Young v. Young, 1 Dick. 295 ; Kogers 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. 
 
OF CORRECTION. 387 
 
 ment 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 erroneously supposed that its inser- 
 tion would make the transaction usurious, it was held 
 that the omission could not be supplied in equity; for 
 the Court was not asked to make the deed what the 
 parties intended, but to make it thatwhich they did not 
 intend, but which they would have intended, if they 
 had been better informed. So also it has been decided, 
 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 after- 
 wards 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. (7i)^ 
 
 *In order to sustain a bill for relief under this p^-, «-. -, 
 equity, it is essential that the error be on both 
 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 refus- 
 ing 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 whe- 
 
 (h) Irnham y. Child, 1 B. C. C. 92 ; Townshend v. Stangroom, 6 
 Ves. 328, 332 J Worall v. Jacob, 3 Meriv. 267, 271. 
 
 ' [See note, ante, 168.] 
 
 " [See as to rectification of a settlement where the solicitor preparing 
 has exceeded his instructions, Walker v. Armstrong, 25 L. J. Ch. 738.] 
 
388 ADAMS'S DOCTRINE OF EQUITT. 
 
 ther 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 settle-^ 
 ment, there has been something beyond mere parol evi- 
 dence ; such, for instance, as the instructions for prepar- 
 ing the conveyance, or a note by the attorney, and the 
 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 recollec- 
 tion of witnesses, (i) 
 
 Where land is the subject of the erroneous instrument, 
 the reformation of an executed conveyance on parol evi- 
 dence is not precluded by the Statute of Frauds, for 
 otherwise it would be impossible to give relief. And 
 where a mistake in an executory agreement relating to 
 land is alleged, parol evidence may be admitted in oppo- 
 sition to the equity for specific performance. But it does 
 not appear, that where the defendant has insisted on the 
 benefit of the statute, the Court has ever reformed such 
 an executory agreement on parol evidence, and specifi- 
 r*i Toi ^^^^y enforced *it with the variation. (^)^ A will 
 <- -I cannot be corrected by evidence of mistake, so as 
 
 (i) Townshend v. Stangroom, 6 Ves. 328 ; Beaumont v. Bramley, T. 
 & E. 41 ; Alexander v. Crosbie, L. & G. 145 ; Mortimer v. Shortall, 1 
 Conn. &L. 417. 
 
 (fc) Attorney-G-eneral v. Sitwell, 1 Y. & C. 559 ; Townshend v. Stan- 
 groom, 6 Ves. 328 ; Higginson v. Clowes, 15 Ves. 516 ; 1 V. & B. 
 524; Okill v. Whittaker, 2 Ph. 338. 
 
 ' See Osborn v. Phelps, 19 Conn. 63; [but see note, ante, p. 85.] 
 
OF CORRECTION". 389 
 
 to supply a clause or word inadvertently omitted by the 
 drawer or copier ; for there can be no will without the 
 statutory forms, and the disappointed intention has not 
 those forms. But it seems that if a clause be inadver- 
 tently 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 de- 
 creed on a presumption of equity ; as, for example, 
 where 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, so as to charge 
 the estate of a deceased obligor.^ The principle 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 coextensive with the liability for 
 the debt. On the same principle 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 
 Uable, until the money should be paid ; and that there- 
 fore 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.(»2)^ If, however, there be no in- 
 dependent liability, as, for example, if the bond be of 
 
 (J) 8 Vin. Abr. 188, G-. a, pi. 1 ; Newburgh v. Newburgh, 5 Madd. 
 364; 1 Jam. on Wills, 353; Wigram on Wills, s. 121. 
 
 (m) Simpson v. Vaughn, 2 Atx. 31 ; Bishop v. Church, 2 Ves. 100 ; 
 Thorpe v. Jackson, 2 Y. & C. 553 ; Clarke v. Bickers, 14 Sim. 639. 
 
 ^ [Story's Eq. § 162 ; Weaver v. Shrjock, 6 Serg. & E. 262; Stiles 
 V. Brock, 1 Penn. St. 215.] 
 
 ' [This proposition, that a joint loan creates a joint and several debt 
 in equity, for which Thorpe v. Jackson is cited, was doubted in Jones 
 V. Beach, 2 Be G. M. & Gord. 886, by L. J. Knight Bruce.J 
 
390 ADAMS'S DOCTRINE OF EQUITY. 
 
 indemnity or of suretyship, there is no presumption that 
 the instrument is erroneous, and no jurisdiction to vary 
 its effect. If, therefore, it be a joint obligation 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 *presumptive, that its 
 L -I form is contrary to what was meant, it cannot be 
 altered on mere conjecture, (to) ' 
 
 An important instance of the equity in respect to co- 
 debtors occurs in the case of debts owing by a part- 
 nership. On the death of a partner, the liability sur- 
 vives 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 re- 
 tired from the firm, and is afterwards sued by an ante- 
 rior creditor. The doubt, however, is not of law, but of 
 fact. The principle of decision is clear ; viz., that the 
 deceased or retiring partner's estate must remain Uable 
 until the debts which affected him are discharged. But 
 the discharge may take place in various ways ; e. g., by 
 actual payment on account of such debts ; by the regular 
 
 (n) Sumner v. Powell, 2 Meriv. 30 ; Underhill v. Horwood, 10 Ves. 
 209, 227 ; Eawstone v. Parr, 3 Russ. 539. 
 
 1 [Jones V. Beach, 2 De G. M. & Gord. 886 ; U. S. v. Price, 9 How. 
 U. S. 83 ; Moser v. Libenguth, 2 Rawle, 428. Such evidence must be 
 of mistake of fact, as by the draftsman of his instructions, but not of 
 law, as of the legal effect of the words used. Moser v. Libenguth, ut 
 sup. The rule has been also applied to the case of a joint judgment, en- 
 tered on a joint and several bond, and the estate of the surety held dis- 
 charged by his death after the rendering of the judgment. U. S. v. 
 Price, ut supr.J 
 
OF COREEOTION. 391 
 
 application of unappropriated payments to tteir reduc- 
 tion, 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 barring the claim ; and 
 the question in each case is, whether, as against the 
 particular partner, the debt has been in fact dis- 
 charged, (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 redemp- 
 tion to the husband. If the instrument does not recite 
 an intention^ to do more than make a mortgage, the pre- 
 
 (o) Wilkinson v. Henderson, 1 M. & K. 582 ; Winter v. Innes, 4 M. 
 & C. 101 ; Brown v. Weatherby,. 12 Sim. 6 ; Tatam v. Williams, 3 Hare, 
 347; Way v. Bassett, 5 Hare, 55 ; Thompson v. Percival, 5 B. & Ad. 
 925; Hart v. Alexander, 2 Mee. & W. 484; Blair v. Bromley, 5 Hare, 
 542, 555; Smith, Merc. Law, 55. 
 
 ' [It is not necessary, however, as was decided in Innes v. Jackson, 
 cited above, that such intention should appear in the recitals in the deed, 
 it is sufficient if it appear from the whole transaction; and see Demarest 
 V. Wynkoop, 3 John. Ch. 129. In the recent case of Whitbread v. 
 Smith, 8 De G-. M. & Gord. 737, it was held that the Court would not 
 on slight expressions in the proviso for redemption, infer an intention to 
 exclude the wife. Where there has been a different construction, it 
 was said, there were special circumstances independently of the limita- 
 tions of the equity of redemption. See also Plowden v. Hyde, 2 De Gr. 
 Maen. & Gord. 684. Where a wife mortgages her property for a hus- 
 band's debt, she stands in the position of surety, and is entitled to ex- 
 oneration out of his estate : Sheidle v. Weishlee, 16 Penn. St. 134 ; 
 Neimcewicz v. Gahn, 3 Paige, 614 ; and if her estate is joined with her 
 husband's in one mortgage under such circumstances, the latter must be 
 first sold : Loomer v. Wheelwright, 3 Sandf. Ch. 135 ; Johns v. Rear- 
 don, 11 Maryl. 465 ; or if her estate has been sold, she is entitled to 
 subrogation to the mortgage, as against her husband. Sheidle v. Weish- 
 lee. On the other hand, where the mortgage by the husband and wife 
 
392 Adams's doctrine of equity. 
 
 sumption is that nothing more was intended ; and the 
 instrument will be *reformed by restoring the 
 L -I 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 re- 
 mainderman 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 operation.^ And it is ex- 
 
 (z) Innes v. Jackson, 1 Bl. 0. S. 104, 114 ; Clark v. Burgh, 2 Coll. 
 221; [see also Plowden v. Hyde, 2 De G-. Macn. & G. 684.J 
 
 is of the wife's separate estate, parol evidence is admissible to show that 
 the money was really advanced to the wife, and the husband the surety. 
 Gray v. Downman, 27 L. J. Ch. 702.] 
 
 ^ 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 palpable mistake. Thomp- 
 son V. Jackson, 3 Band. 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 the other 
 party. Beck v. Simmons, 7 Ala. 71; Watkins v. Collins, 11 Ohio, 31; 
 [Kirby v. Harrison, 2 Ohio N. S. 326.] 
 
 Application for a rescission must usually be made as soon as the cause 
 for rescission is discovered : Ayres v. Mitchell, 8 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 ; [Garland v. Bowling, 1 
 Hemp. C. C. 710 ; Coppedge v. Threadgill, 3 Sneed, 377 ;] see, also, 
 Skinner v. White, 17 John. R. 357 ; Clay v. Turner, 3 Bibb, 52. 
 Equity will also, upon a proper case being made, rescind contracts in 
 relation to personal as well as real estate. Bradberry v. Keas, 5 J. J. 
 Marsh. 446. [Inadequacy of price by itself is no ground of rescission, 
 
OF RESCISSION AND CANCELLATION. 393 
 
 ercised for a double purpose ; first, for cancelling execu- 
 tory contracts, where such contracts 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 conveyances or other impeachable trans- 
 actions, 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 com- 
 plained of, there is jurisdiction in the Court of Chan- 
 
 (a) Peake v. Highfield, 1 Euss. 559 ; Jones v. Lane, 3 Y. & C. 281, 
 294; Simpson v. Lord Howden, 3 M. & C. 97. 
 
 as has been held in a great number of cases. Osgood v. Franklin, 2 
 Johns. Ch. 1 ; Hill on Trustees, 210 (2d Am. Ed.), and oases cited ; 
 Potter V. Everett, 7 Ired. Eq. 152 ; Kobinson v. Robinson, 4 Maryl. 
 Ch. 183 ; Judge v. Wilkins, 19 Ala. 765 ; Erwin v. Parham, 12 How. 
 TJ. S. 197. Yet it may, in connection witb suspicious circumstances, 
 be evidence of fraud : Wormack v. Rogers, 9 Georgia, 60 ; McArtee v. 
 Engart, 13 111. 242 ; particularly in view of the mental capacity of the 
 seller, or the relations of the parties : see post, 182, and notes. And it 
 has been often said, though not often acted on, that where the inadequacy 
 is very gross indeed, so as to shock the conscience and understanding 
 of any man, the Court from that alone would infer fraud or imposture. 
 Wright v. Wilson, 2 Yerg. 294 ; Butler v. Haskell, 4 Desaus. 652 ; 
 Gist V. Frazier, 2 Litt. 118 ; Barnett v. Spratt, 4 Ired. Eq. 171 ; Dead- 
 errick v. Watkins, 8 Humph. 520 ; Juzan v. Toulmin, 9 Ala. 662 ; 
 Eyre v. Potter, 15 How. U. S. 60; Gifford v. Thorn, 1 Stockt. 702 ; 
 Surget v. Byers, 1 Hempst. C. C. 715 ; but see Erwin v. Parham, 12 
 How. 197. 
 
 On the other hand, a purchase of land at an exorbitant price, made 
 on condition of a loan of money, by a party whose necessities compel 
 him to borrow, will be set aside. Cockell v. Taylor, 15 Beav. 147. 
 
 The cancellation of an instrument may be decreed, though it has 
 become a nullity, on the ground of its creating a cloud in the title, or 
 because it may subject the party to litigation when the facts are for- 
 gotten. Cook V. Cole, 2 Halst. Ch. 522, 627.] 
 
394 ADAMS'S DOCTRINE OF EQUITY. 
 
 eery. (6) The mode of relief under this equity, may be 
 by cancellation of the instrument, or reconveyance of 
 the property which has been unduly obtained, or by an 
 injunction against suing at law on a vitiated contract, 
 or against taking other steps to complete an incipient 
 wrong, (c) 
 
 We will first consider the case of Rescission and Can- 
 cellation for illegality. 
 
 It is a maxim of law, that "ex turpi causa non oritur 
 actio;" and, therefore, if a contract of such a character 
 be made, its invalidity will be a defence at law, whilst 
 P^, __-. it *remains unexecuted ; and pari ratione, if its 
 illegal character be not apparent on the face of 
 it, will be a ground for cancellation in equity. Such, 
 for instance, are contracts entered into for the purposes 
 of gaming or smuggling, for inducing or aiding prostitu- 
 tion, 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.' 
 
 (h) Evans v. Bicknell, 6 Ves. 174 ; Blair v. Bromley, 2 Ph. 354. 
 (c) Infra, Injunction. 
 
 ' A judgment on a note for money won at gaming may be enjoined, 
 but if the money is paid it cannot be recovered back. Gill v. Webb, 4 
 
or RESCISSION AND CANCELLATION. 395 
 
 So long as the contract continues executory, the maxim 
 oi" 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 con- 
 fined to cancellation of the contract, and must not couple 
 relief in affirmance of it, such as specific performance or 
 reformation of error, (c?) 
 
 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 re- 
 spect to fraud used in obtaining a will, this jurisdiction 
 does not exist. If the will be of real estate, it is exclu- 
 sively cognizable at law ; if of personsal estate, in the 
 
 (d) Batty V. Chester, 5 Bea. 103. 
 
 Monr. 299. [Courts of equity will not set aside an executed conveyance 
 to compound a felony : Swartzer v. Grillett, 1 Chand. Wise. 207 ; nor a 
 conveyance of a slave, upon a secret trust for his emancipation, when it 
 is against law. Grimes v. Hoyt, 2 Jones Eq. 271. 
 
 A debtor, however, may always obtain relief in equity against a 
 usurious contract; but he is obliged to tender by his- bill the principal 
 of the debt and legal interest, except in New York, where this is dis- 
 pensed with by statute. Story Eq. § 301 ; see Vilas v. Jones, 1 Comst. 
 274 ; Eexford v. Widger, 2 Id. 131 ; West v. Beanes, 3 Harr. & John. 
 568 ; Anon. 2 Desaus. 333. 
 
 So where the parties to a contract contrary to public policy or illegal, 
 are not in pari delicto, and where public policy is considered as ad- 
 vanced in allowing either, or at least the more excusable of the two, to 
 sue for relief, as in the case of bargains "savoring of champerty," equity 
 will relieve, though against an executed conveyance. Keynell v. Sprye, 
 1 De G. M. & Gord. 660 ; 21 L. J. Ch. 633 ; affg S. C. 8 Hare, 222. 
 Where a party is injured by an act which is a felony at common law, or 
 by statute, there is no remedy at law or in equity, till after a conviction 
 or acquittal on the criminal charge ; but this does not apply where the 
 injury is not discovered till after the criminal's death. Wickham v. 
 Gattrell, 18 Jur. 768.] 
 
396 ADAMS'S DOCTRINE OF EQUITY. 
 
 Ecclesiastical Court, (e) In other cases of fraud, the 
 Court of Chancery has concurrent jurisdiction with the 
 Courts of law; and *this jurisdiction will be exer- 
 L J cised 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 protect 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 relief, for so 
 long as the fraud remains unknown, it is a daily aggra- 
 vation of the original wrong ; (h) and even the innocence 
 of a party who has profited by the fraud, will not entitle 
 him to retain the fruit of another man's misconduct, or 
 exempt him from the duty of restitution, (i) On the 
 
 (e) Infra, 248, Establishment of Wills. [But see note, Ibid.]' 
 
 (/) Overton v. Banister, 3 Hare, 503 ; Stikeman v. Dawson, 1 D. G. 
 & S. 90 ; [Wright v. Snowe, 2 De G. & Sm. 321 ; Stoolfoos v. Jenkins, 
 12 Serg. & E. 899.] 
 
 (g) Supra, Priority of Equity on the ground of Fraud. Beadles v. 
 Burch, 10 Sim. 332 ; Attwood v. Small, 6 C. & E. 232. 
 
 (A) Alden v. Gregory, 2 Eden, 280; South Sea Company v. Wymond- 
 sell, 3 P. Wms. 143 ; Hovenden v. Lord Annesley, 2 Sch. & L. 607, 
 639. 
 
 (i) Huguenin v. Baseley, 14 Ves. 273, 289. 
 
 ^ [So of a/eme covertc. Jones v. Kearney, 1 Dr. & Warr. 134; see 
 Davis'v. Tingle, 8 B. Monr. 539. In the recent case of Vaughan v. 
 Vanderstegan, 2 Drewry, 363, it was held that a married woman, frau- 
 dulently representing herself as sole, made her separate estate liable 
 for debts so contracted, and that where she had a general power of ap- 
 pointment and exercised it, equity would treat the property as assets on 
 her death.] 
 
OF EESCISSION AND CANCELLATION. 397 
 
 other hand, all unfounded allegations of fraud are dis- 
 couraged by the Court; and if such allegations are made, 
 and not established, the plaintiff will not in general be 
 allowed to resort to any secondary ground of relief. (A;) ^ 
 
 With respect to what will constitute fraud, it is im- 
 possible to lay down a specific rule ; but the most ordi- 
 nary instances of its occurrence, and those to which our 
 attention will be now directed, are the procuring con- 
 tracts 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 implied, false within 
 the knowledge of the party making it, reasonably relied 
 on by the other party, and constituting a mate- 
 rial inducement *to his contract or act.^ If the L J 
 
 (k) Glasoott V. Lang, 2 Ph. 310. [Price v. Berrington, 3 Macn. & 
 G. 486; Eyre v. Potter, 15 How. U. S. 56 ; Fisher v. Boody, 1 Curtis, 
 211; see Waters v. Mynn, 14 Jur. 341. J 
 
 ' [It is not sufficient to allege fraud, in order to the rescission of a 
 transaction, it must also be made to appear that the complainant has 
 suffered some injury thereby. Cunningham t. Ashley, 7 Eng. Ark. 
 296 ; Cook v. Cook, Id. 381. In general, an allegation of fraud is ne- 
 cessary : Gouverneur v. Elmendorff, 5 Johns. Ch. 79 ; Thompson v. 
 Jackson, 8 Rand. 504^ Booth v. Booth, 8 Lit. 57 ; Miller v. Gotten, 5 
 Geo. 846 ; Conway v. Ellison, 14 Ark. 360 ; though, where the facts 
 are stated withMistinctness and precision, an allegation of fraud totidem 
 verhis is not required. McCalmont v. Eankin, 8 Hare, 1 ; Skrine v. 
 Simmons, 11 Geo. 401 ; Kennedy v. Kennedy, 2 Alab. 571.] 
 
 ' [A false and fraudulent representation of a material fact, constitut- 
 ing an inducement to the contract, and on which the vendee relied, and 
 had a right to rely, is a ground for rescission ; and it appears to be gene- 
 rally held in the United States, that the principle equally applies, where 
 the party making the representation was ignorant whether it were true 
 
398 Adams's doctrine of equity. 
 
 fact concerning which the representation is made is not 
 a material inducement to the contract or act, there is no 
 
 or false. Hough v. Richardson, 3 Story, 659 ; Harding v. Randall, 15 
 Maine, 332 ; Pratt v. Philbrook, 83 Maine, 17 ; Lewis v. McLemore, 10 
 Yerg. 206 ; Turnbull v. Gadsden, 2 Strob. Eq. 14 ; Rosevelt v. Eulton, 
 2 Cow. 129 ; Smith v. Babcock, 2 Wood. & M. 246; Hunt v. Moore, 
 2 Penn. St. 105; Smith v. Richards, 13 Pet. 26; Joice v. Taylor, 6 
 Gill & John. 54; Tyler v. Black, 13 How. U. S. 230; Reese v. Wyman, 
 9 Geo. 439 ; Taymon v. Mitchell, 1 Maryl. Ch. 496 ; Smith v. Robert- 
 son, 23 Alab. 312; Belknap v. Sealey, 2 Duer (N. Y.) 570; Lanier v. 
 Hill, 25 Ala. 554; York v. Gregg, 9 Texas, 85; Oswald v. McGehee, 
 28 Miss, 340; see Pulsford v. Richards, 17 Jurist, 865; 17 Beav.87; 
 Reynell v. Sprye, 8 Hare, 222, aff'd on appeal. It is not material that 
 the misrepresentation was merely by an agent. Fitzsimmons v. Goslin, 
 21 Verm. 129 ; Brooke v. Berry, 2 Gill, 83 ; or by a partner: Blair v. 
 Bromley, 2 Phillips, 425. But if the agreement be fair between the 
 parties, it is not invalid because brought about by a third person to bene- 
 fit himself. Bellamy v. Sabine, 2 Phillips, 425 ; Blackie v. Clarke, 22 
 L. J. Ch. 377. Or even though brought about by fraudulent misrepre- 
 sentations on the part of such third person : Fisher v. Boody, 1 Curtis, 
 206. 
 
 In Turner v. Navigation Co. 2 Dev. Eq. 236, however, it was held 
 that in the case of a written contract, representations made bona fide, 
 must have been inserted in the contract to be relieved against; and this, 
 though the language of some of the cases seems to go much further, is 
 on principle the true doctrine. See Attwood v. Small, 6 CI. & Finn. 
 232. Where both parties have equal means of information, so that by 
 the exercise of ordinary prudence and diligence, either may rely upon 
 his own judgment, misrepresentations, though false, will not be con- 
 sidered fraudulent. Hobbs v. Parker, 31 Maine, 143; Yeates v. Pryor, 
 6 Eng. Ark. 68 ; Hall v. 'Thompson 1 Sm. & Marsh. 443. Tindall v. 
 Harkinson, 19 Geo. 448. And so if a vendee becomes acquainted with 
 the fraud before completing his bargain, and chooses to go on, a Court 
 of equity will not help him. Pratt v. Philbrook, 33 Maine, 17; 
 KnuokoUs v. Lea, 10 Humph. 577 ; see Yeates v. Pryor, 6 Eng. Ark. 
 68 ; Scott V. Gamble, 1 Stockt. 218. But a contract may be set aside 
 for fraudulent misrepresentations, though the means of obtaining infor- 
 mation were fully open to the party deceived, where, from the circum- 
 stances, he was induced to rely upon the other party's information. 
 
OP EESCISSIOK AND CANCELLATION. 399 
 
 reason why a misstatement of it should vitiate what has 
 heen done;(Z) and if the misstatement has not been re- 
 lied on, or not reasonably relied on, by the complaining 
 party, the same reasoning will apply. Such, for exam- 
 ple, will be the case, if the party to whom the represen- 
 tation 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 investigation and verification are at 
 hand, and his attention is drawn to them ; or if the repre- 
 sentation regards 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 
 
 (0 Attwood V. Small, 6 CI. & F. 232, 502; Phillips v. Duke of Buck- 
 ingham, 1 Vern. 227 ; Fellowes v. Lord Gwydyr, 1 K. & M. 83 ; C'rosbie 
 v. Tooke, 1 M. & K. 431 ; Nelthorpe v. Holgate, 1 Coll. 203 ; 1 Sug. 
 V. & P. 348-351. 
 
 Eeynell v. Sprye, 8 Hare, 222 ; aff'd, 21 L. J. Ch. 633 ; 1 De G. M. 
 & Gr. 660. Misrepresentations of value, or of other matters which are 
 only of opinion, also will not be relieved against. Warner v. Daniels, 1 
 Wood. & Min. 90 ; Hough v. Richardson, 3 Story, 659 ; Speiglemyer 
 V. Crawford, 6 Paige C. R. 254 ; Juzan v. Toulmin, 9 Alab. 662 ; 
 Smith V. Richards, 13 Pet. 26 ; Glasscock v. Minor, 11 Mo. 655. If, 
 however, there is some fiduciary relationship between the parties : Spence 
 V. Whittaker, 3 Porter, 297 ; or in resisting specific performance, mis- 
 representations of value may become important.] 
 
 False reasoning upon facts truly stated is no ground for relief in 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 misrepre- 
 sentation of facts, aflFord no ground for setting aside the contract. Hutch- 
 inson V. Brown, 1 Clarke, 408. 
 
 [As to false representations and concealment in a prospectus or adver- 
 tisement of a projected railway or similar company, by which parties are 
 induced to become shareholders, see Jennings v. Broughton, 17 Jur. 
 905j 17 Beav. 234; Pulsford v. Richards, 17 Jur. 865; 17 Beav. 87.] 
 
400 ADAMS'S DOCTRINE OF EQUITY. 
 
 were prevented by any artifice of the other party from 
 making such full inquiry as he would otherwise have 
 made.(/n) For this reason a contract is not vitiated by 
 a mere false assertion of value on the part of the seller; 
 nor by vague and indefinite terms of commendation ;(n) 
 nor by a mere misstatement by the buyer of his motive 
 in purchasing or in limiting the amount of his offer; for 
 these are not representations on which a man can rea- 
 sonably rely.(o) Nor will the mere employment of one 
 person to bid at an auction on the owner's behalf, though 
 not notified, be a fraud in equity, provided he be hona 
 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 without re- 
 serve, which implies that such a course will not be 
 taken, {p) 
 
 *The requirement that the representation shall 
 L -I be not only false, but false within the knowledge 
 of the party making it, distinguishes a fraudulent repre- 
 sentation inducing to a contract from an erroneous affir- 
 mation embodied in it by way of warranty or covenant.^ 
 Af&rmations of this latter kind bind the party making 
 them, although he were himself honestly mistaken, be- 
 
 (m) Clapham v. ShiUito, 7 Bea. 146 ; Attwood v. SmaU, 6 CI. & F. 
 232, 603. 
 
 (n) 1 Sug. V. & P. 3, 4; White v. Cuddon, 8 CI. & F. 766. 
 
 (o) Vernon v. Keys, 12 East, 632. 
 
 (p) Smith V. Clarke, 12 Ves. 477; Woodward v. Miller, 2 Coll. 279; 
 Thornett v. Haines, 15 Mee. & W. 367 ; 15 Law J. Bxoh. 280; 1 Sug. 
 V. & P. c. i, s. 2. 
 
 ' [Though see Pennook's App. 14 Penn. St. 446 ; Staines v. Shore, 
 16 Id, 200, contra.'\ 
 ^ See Spenoe v. Duren, 8 Ala. 251. 
 
OF RESCISSION AND CANCELLATION. 401 
 
 cause he has explicitly agreed that they shall do so ; 
 but if a warranty or covenant is not given, a mere re- 
 presentation 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) 
 
 Where no statement has been expressly made, a mis- 
 representation may nevertheless be implied from con- 
 duct. But mere nondisclosure is generally not equi- 
 valent to fraud. The ordinary maxim of law is " caveat 
 emptor ;" and this maxim authorizes a contracting 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, knowing 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 diiFerent character, 
 where the contract is necessarily based on the assump- 
 tion 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 validity of his title, de- 
 livers an abstract which does not disclose it ; for the 
 knowledge of his title is confined to himself; and the 
 
 (2) Pasley v. Freeman, 3 T. K. 51 ; Freeman v. Baker, 5 B. & Ad. 
 797 ; Ormrod v. Huth, 14 Mee. & W. 651 ; 14 Law J. Exch. 366. 
 
 (r) Turner v. Harvey, Jac. 169, 178; Dykes v. Blake, 4 B. N. C- 
 463 ; Gibson v. D'Este, 2 N. C. C. 542 ; \a.liter, if there were artifices 
 used to conceal the fact. Bowman v. Bates, 2 Bibb, 47.] 
 
 ' In a recent case in Pennsylvania it was held, following the dictum 
 of Lord Thurlow cited above, that a sale of land could not be rescinded 
 on the ground that the purchaser had not disclosed the existence of a 
 valuable mine on the property, which he had discovered, there being 
 oth^ise no fraud in the transaction. Harris v. Tyson, 24 Penn. St. 
 369!!^. 
 
 26 
 
402 Adams's doctrine of equity. 
 
 purchaser contracts on the assumption that the real 
 title will be shown. (s) It has been further decided at 
 law that, even though an article be sold *with all 
 ■- J faults, so as expressly to free the seller from re- 
 sponsibility, 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, (t) ' 
 
 (s) Edwards v. McLeay, Coop. 308 ; 2 Swanst. 287. 
 (i) Baglehole v. Walters, 3 Camp. 154 ; Schneider v. Heath, 3 Camp. 
 506 J 1 Sug. V. & P. 545-552. 
 
 ^ [Where concealment amounts to a wilful suppression by one party 
 for his own benefit, and to the injury of the other, of material factSj 
 which the former was bound not merely morally but legally to communi- 
 cate, it will amount to a case of fraud against which equity will relieve. 
 See Wall v. Thompson, 1 Sm. & M. 443 ; Young v. Bampass, 1 Free- 
 man Ch. 241 ; Arrastead v. Hundley, 7 Gratt. 52 ; Torrey v. Buci, 
 1 Green Ch. 366 ; White v. Cos, 3 Heyw. 79 ; Jopling v. Dooley, 1 
 Yerg. 290; Napier v. Elam, 6 Yerg. 108 ; Snelson v. Franklin, 6 Munf. 
 210; Story's Eq. § 207; Laidlaw v. Organ, 2 Wheat. 178; Lancaster 
 Co. Bank v. Albright, 21 Penn. St. 223. The limits beyond which con- 
 cealment becomes fraudulent, are very difficult to determine. Chancellor 
 Kent at one time advanced the doctrine, that " each party is bound to 
 communicate to the other his knowledge of material facts, provided he 
 knows him to be ignorant of them, and they be not open or naked." 2 
 Kent Comm. 482. But this, in later editions of his Commentaries, he 
 considerably modified. It would seem, indeed, that in ordinary circum- 
 stances, the concealment must have something active in its character, to 
 amount to fraud. W^here, however, the parties stand towards each other 
 in any relation of a fiduciary or quasi-fiduciary character, as in the case 
 of solicitor and client, Higgins v. Joyce, 2 Jones & Lat. 282 ; or of co- 
 partners, Ogden v. Astor, 4 Sandf. S. C. 312 ; Farnam v. Brooks, 9 
 Pick. 234 ; or of members of the same family dealing in that character 
 as to their rights, Gordon v. Gordon, 3 Swanst. 400; the obligation to 
 disclosure becomes imperative. See Story Eq. § 217, 8. See, however, 
 Crane v. Hewitt, 2 Halst. Ch. 631, but qu. as to that case.] 
 
 Where it does not appear that a party knew a fact alleged to hav4 teen 
 
OF RESCISSION AND CANCELLATION. 403 
 
 The principle which treats nondisclosure as equivalent 
 to fraud, when the circumstances impose a duty that 
 the disclosure should be made, is especially material in 
 respect to contracts of insurance and suretyship. For 
 the risk which the insurer undertakes and the contract 
 which the surety guarantees, can only be learned 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 know- 
 ledge, 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 conceal- 
 ment was attributable to the fraud or neglect of an 
 agent, or that the account concealed was false, or in no 
 way referred to the subsequent cause of loss, or was not 
 beheved by the insurer to be material, or was not con- 
 cealed with a fraudulent design, (m) And in like man- 
 ner if a contract is guaranteed by a surety, and a fact 
 materially aflfecting the nature of that contract is mis- 
 represented to him, or concealed from him, with the 
 
 («) Carter v. Boelim, 3 Burr. 1906; Smith Merc. Law, 358-363, 
 374; De Costa v. Scandret, 2 P. Wms. 170; Whittingham v. Thorn- 
 burgh, 2 Vern. 206; Fenn v. Craig, 3 Y. & C. 216; Kemp v. Pryor, 
 7 Ves. 237, 249 ; Jervis v. "White, 7 Ves. 413. 
 
 concealed, or had had better opportunity to know it than the other, equity 
 will not interfere. Perkins v. McGavock, 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. Davidson v. 
 Moss, 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. Whittingham, 5 J. J. Marsh. 
 96; Napier v. Elam, 6 Yerg. 108. 
 
404 Adams's doctrine of equitt. 
 
 knowledge or consent of the party accepting the gua- 
 rantee, the surety ceases to be liable. («) 
 
 Another case of the same character occurs in compo- 
 sitions by a debtor with his creditors, where a secret bar- 
 gain has been made with particular creditors. The very 
 circumstances that some creditors have already executed, 
 is an inducement *to the rest to follow their ex- 
 L ^ ample. The reason why they have so executed 
 can only be known by the other creditors from the re- 
 presentations 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 public policy. (w) 
 
 In like manner a secret agreement on marriage, in 
 fraud of the relations or friends of one of the parties, 
 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 deceptiori practised on the other parties to induce 
 a larger settlement than they would otherwise have 
 made, {x) And a bond given for assisting a clandestine 
 marriage has been set aside, though given voluntarily 
 after the marriage, and without any previous arrange- 
 ment, (y) 
 
 (v) Pidcock V. Bishop, 3 B. & C. 605 ; Stone v. Compton, 5 B. N. 
 C. 142; Hamilton v. Watson, 12 CI. & F. 109. 
 
 (w) Jackman v. Mitchell, 13 Ves. 581 ; Ex parte Sadler and Jack- 
 son, 15 Ves. 52 ; Smith Merc. Law, 702. 
 
 (x) Palmer v. Neave, 11 "Ves. 165; Turton v. Benson, 1 P. Wms. 
 496 ; Thompson v. Harrison, 1 Cox, 344. 
 
 (y) Williamson v. Gihon, 2 Sch. & L. 357. 
 
OF RESCISSION AND CANCELLATION. 405 
 
 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, without 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 in- 
 tended husband that she is so entitled, that upon the 
 marriage he will become entitled jure mariti ; and if, 
 during the same treaty, she clandestinely conveys away 
 the property, either for the benefit of a third person, or 
 to secure to herself the separate use of it, and the con- 
 cealment continues till the marriage takes place, there 
 can be no doubt that a fraud is practised on the hus- 
 band. If both the property and the mode of its convey- 
 ance, pending the marriage * treaty, were con- 
 cealed from 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 conveying 
 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 previously known. 
 
 ' See Linker v. Smith, 4 Wash. C. C. 224 ; [Logan v. Simmons, 3 
 Ired. Bq. 487; Tucker v. Andrews, 13 Maine, 124; Waller v. Armis- 
 tead, 2 Leigh, 11 ; Manes v. Durant, 2 Rich. Eq. 404 ; Wrigley v. 
 Swainson, 3 De G. & Sm. 458 ; see notes to Countess of Strathmore v. 
 Bowes, 1 Lead. Gas. Eq. 317, 1st Am. Ed.] In Petty v. Petty, 4 B. 
 Monr. 215, the same rule was applied to the case of a husband who con- 
 veyed his property in fraud of the rights of his second wife. [See Le- 
 wellen v. Cobbold, 1 Sm. & Giff. 376. So, on the other hand, a con- 
 veyance, by a husband pending proceedings for a divorce on the part of 
 a wife, in order to avoid the eflfects of a decree for alimony, will be set 
 aside. Blenkinsopp v. Blenkinsopp, 1 De G. M. & G. 495. See Krupp 
 V. Scholl, 10 Penn. St. 193.] 
 
406 ADAMS'S DOCTEINE OF EQUITY. 
 
 have induced him to abstain from the marriage. The 
 mere fact, however, of concealment 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 determine in each case whether, having regard 
 to the condition of the parties, and the other attendant 
 circumstances, a transaction complained of by the hus- 
 band should be treated as fraudulent.' Several circum- 
 stances appear to have been thought material as nega- 
 tiving the imputed fraud ; such, for instance, as the po- 
 verty 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 settlement upon the 
 children of a former marriage, or of a bond given to 
 secure a debt contracted for a valuable consideration, — 
 and the ignorance of the husband that his wife pos- 
 sessed 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 deter- 
 mining the marriage contract 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 concealment, that 
 the husband had brought the intended wife to his house, 
 and had induced her to cohabit with him before the mar- 
 riage, it was held conclusive against relief. For, it was 
 
 1 [See "Wrigley v. Swainson, 3 De G. & Sm. 458.] 
 
or RESCISSION AND CANCELLATION. 407 
 
 said by the Court, *that by the husband's conduct 
 
 towards her, retirement from the marriage on her 
 
 [*182] 
 
 part was made impossible. She must have submitted to 
 a marriage with her seducer, even though he should have 
 insisted on receiving and spending the whole of her for- 
 tune ; 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 misre- 
 presentation, 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 after- 
 wards 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 accompanied 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 deed, this is not by duress of imprison- 
 ment, 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 speak- 
 ing, 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 ; 
 
 (2) Goddard v. Snow, 1 Russ. 485; England v. Downs, 2 Bea, 522; 
 Taylor v. Pugh, 1 Hare, 608. 
 (a) 2 Steph. Bl. 131, 137. 
 
 ' McDaniel v. Moorman, 1 Harp. Ch. 108 ; Underwood v. Brockman, 
 4 Dana,, 319 ; [Brown v. Peck, 2 Wise. 261.] 
 
408 ADAMS'S DOCTRINE OF EQUITY. 
 
 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, on 
 the ground of lunacy, is that it has been obtained from 
 r*l8^1*^ person who at the time of execution was 
 ^ not capable of apprehending its effect, but thfr 
 
 mere fact that the party was in a state of lunacy,' or 
 even that he was under confinement, will not per se in- 
 duce the Court to interfere, if it be distinctly 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)^ 
 
 (6) 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. 
 
 ^ A present interest passes by the deed of a lunatic, whicli is not void, 
 but voidable. Breckenridge v. Ormsby, 1 J. J. Marsh. 245 ; [AUis v. 
 Billings, 6 Metcalf, 415 ; Price v. Berrington, 3 Macn. & G. 486; Bal- 
 lard V. McKenna, 4 Rich. Eq. 358 ; Ingraham v. Baldwin, 5 Selden, 
 45 ; see Molton v. Camroux, 2 Exch. 487 ; 4 Exch. 17 ; Beals v. See, 
 10 Penn. St. 60; though see Desilver's Est. 5 Eawle, 111. 
 
 There is a distinction between cases of rescission, and a defence in 
 equity to the enforcement of an incidental equitable remedy on a deed 
 prima facie good, upon similar grounds. Thus, though insanity would 
 be a sufficient ground for the rescission of a mortgage, yet on a bill for 
 foreclosure, such a defence cannot be set up, where the deed has been 
 duly proved, but the mortgagor or his representatives must establish the 
 invalidity of the security at law, or by an issue. Jacobs v. Richards, 18 
 Jurist, 527.] 
 
 As to the parties who may avoid the deed of a lunatic, see Brecken- 
 ridge V. Ormsby, 1 J. J. Marsh. 248-250, 254 ; Gates v. Woodson, 2 
 Dana, 454 ; [Ingraham v. Baldwin, 5 Selden, 45.] 
 
 A deed made by the grantor, while a lunatic, would require a re- 
 
OF RESCISSION AND CANCELLATION. 409 
 
 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 circum- 
 stances 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. (cZ)i 
 
 (d) Blachford v. Christian, 1 Knapp, 73 ; Ball v. Mannin, 3 Bligh. 
 N. S. 1 ; 1 Story on Eq. s. 234-237. 
 
 execution when he was of sound mind, to give it validity. Jones et al. 
 V. Evans, 7 Dana, 96. 
 
 ^ [Mere weakness of mind, short of actual idiocy or insanity, whether 
 produced by old age, or other causes, is not enough to call for the inter- 
 ference of equity, but where there is imposition or undue influence, it 
 will be a very important and often a controlling ingredient in determining 
 the question of fraud.]- Whipple v. McClure, 2 Eoot, 216; Whiteborn 
 V. Hines, 1 Munf. 557 ; Buffalow v. Buffalow, 2 Dev. & Bat. Oh. 241; 
 Eutherford v. Euff, 4 Desau. 350 ; Deatly v. Murphy, 3 A. K. Marsh. 
 472 ; McCormick v. Malin, 5 Blackf. 509 ; Hunt v. Moore, 2 Penn. 
 St. 105 ; [Ex parte Allen, 15 Mass. 58 ; Rippy v. Gant, 4 Ired. Eq. 
 447 ; Mann v. Betterly, 21 Verm. 326 ; Mason v. Williams, 3 Munf 
 126; Harding v. Handy, 11 Wheat. 103 ; Brogden v. Walker, 2 Harr. 
 & John. 285; Whelan v. Whelan, 3 Cow. 537; Rumph v. Abercrombie, 
 12 Alab. 64; Gratz v. Cohen, 11 How. U. S. 1; Brice v. Brice, 5 Barb. 
 S. C. 583 ; Brooke v. Berry, 2 Gill, 83 ; Craddock v. Cabiness, 1 Swan 
 (Tenn.), 474 ; Lansing v. Kussell, 13 Barb. S. C. 511 ; Long v. Long, 
 9 Maryl. 348 ; Hill v. McLaurin, 28 Mississ. 288 ; Marshall v. Bil- 
 lingsly, 7 Ind. 250 ; Smith v. Elliott, 1 Patt. & Heath, 307 ; Graham 
 V. Pancoast, 30 Penn. St. 89 ; Nace v. Bryser, Id. 99. As to contracts 
 by illiterate persons, see Price v. Price, 1 De G. Macn. & Gord. 308 ; 
 Wilkinson v. Fawkes, 9 Hare, 592. 
 
 Monomania, not connected with the subject of the contract, has been 
 held not to be a cause of invalidity. Boyce v. Smith, 9 Gratt. 704.J 
 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 
 
410 Adams's doctrine of equity. 
 
 A person drunk to the extent of complete intoxication, 
 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 intoxi- 
 cation 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 confine itself to standing neuter, 
 and will not relieve against the instrument, unless the 
 contracting party was drawn in to drink by the contri- 
 vance of the other, (e) ^ 
 
 The same principle which vitiates a contract with an 
 incapacitated person is extended in equity to avoid 
 benefits obtained by trustees from their cestuis que trus- 
 tent, or by other persons sustaining a fiduciary character 
 from those in regard to whom that character exists.^ 
 
 (c) 2 Sug. on Pow. 178 ; Cooke v. Clayworth, 18 Ves. 12 ; Lightfoot 
 V. Heron, 3 Y. & C. 586 ; 1 Story on Eq. s. 2-30-233. 
 
 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. 
 
 ' [And see to the same effect Morrison v. McLeod, 2 Dev. & Batt. 
 Eq. 221 ; Hotchkiss v. Fortson, 7 Yerg. 67 ; Hutchinson v. Brown, 1 
 Clarke Ch. 408 ; Harbison v. Lemon, 3 Blackf. 51 ; Maxwell v. Pit- 
 tenger, 2 Green Ch. 156; Whitesides v. Greenlee, 2 Dev. Eq. 152; 
 Crane v. Conklin, Saxt. 346 ; Calloway v. Witherspoon, 5 Ired. Eq. 128; 
 Phillips V. Moore, 11 Mo. 600 ; Marshall v. Billingsly, 7 Indiana, 250. 
 As to specific performance, however, see ante, 84, note. But when 
 from continued habits of intoxication, or from excessive drunkenness 
 at the time, the party is deprived of the use of reason and understand- 
 ing, this is sufficient, by itself, to invalidate a contract. Gore v. Gibson, 
 13 Mees. & Welsby, 626 ; Clifton v. Davis, 1 Pars. Eq. 31 ; French v. 
 French, 8 Hamm. Ohio, 214 ; see Harbison v. Lemon, 3 Black. 57.] 
 
 ^ [This rule is very constantly acted upon in the United States. It 
 is applied to trustees, guardians, executors, and administrators, agents, 
 assignees in bankruptcy, or attorneys ; and in general to all persons 
 
OF RESCISSION AND CANCELLATION. 411 
 
 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 advantage has been made ; 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, however, which imposes this absolute 
 incapacity, 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 him- 
 self of all advantage which his character as trustee 
 might confer, and must prove, if the transaction be 
 afterwards impugned, that it was in all respects fair and 
 honest. (/) In like manner an agent, who is employed 
 to sell, cannot himself become secretly the purchaser ; 
 nor can an agent, who is employed to buy, buy from 
 himself or from his own trustee, or for his own bene- 
 
 (/) Supra, Prohibition of personal benefit to a trustee. 
 
 standing in any fiduciary position. See the American cases collected, 
 Hill on Trustees, 2d Am. Ed. 222, &e. ; and see ante, note, p. 61. 
 
 It has been recently decided, in England, that the director of a rail- 
 way company is a trustee, and, as such, is precluded from dealing, on 
 behalf of the company, with himself, or with a firm of which he is a 
 partner. Aberdeen Ey. Co. v. Blaikie Brothers, 1 Macq; Scott. App. 
 Gas. 461 ; 23 L. T. 315 (H. of L.) It was there held, indeed, that 
 the rule was applicable to all contracts, indifi'erently, whether as to real 
 estate, or personalty, or mercantile transactions.] 
 
412 Adams's doctrine of equity, 
 
 fit.(^) And where even any person stands' in a relation 
 of special confidence 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 coii- 
 nection, of having it set aside as unduly obtained.^ 
 
 (<j) Gillett ¥. Peppercorne, 3 Bea. 78; Taylor v. Salmon, 4 M. & C. 
 134. 
 
 ' See notes to pages 57 and 61, ante. 
 
 [A Court of equity looks with extreme jealousy on transactions be- 
 tween parties who stand in any fiduciary relations, or relations of a 
 similar character, by which an undue influence may be obtained by one 
 over the other, and unless he who receives the benefit, can show that it 
 was conferred understandingly and with full knowledge of the circum- 
 stances, and apart from the bias of that connection, will set them aside. 
 Such relations are those of attorney and client : Greenfield's Est. 14 
 Penn. St. 504; Leisenring v. Black, 5 Watts, 303; Hockenbury v. 
 Carlisle, 5 Watts & Serg. 350 ; Stockton v. Ford, 11 How. U. S. 232 ; 
 Poillon V. Martin, 1 Sandf. Ch. 569 ; Salmon v. Cutts, 4 De G. & Sm. 
 131 ; Kobinson v. Briggs, 1 Sm. & GifF. 184; Merritt v. Lambert, 10 
 Paige, 357; 2 Denio, 607 ; Howell v. Eansom, 11 Paige, 538; Mott 
 v. Harrington, 12 Yerm. 199 ; parent and child : Slocum v. Marshall, 
 2 Wash. C. C. 397 ; Taylor v. Taylor, 8 How. U. S. 183 ; Jenkins v. 
 Pye, 12 Peters, 249 ; Houghton v. Houghton, 15 Beav. 278 ; Baker v. 
 Bradley, 25 L. J. Ch. 7 ; guardian and ward : Johnson v. Johnson, 5 
 Alab. 90; Caplinger v. Stokes, Meigs, 175; Bostwick v. Atkins, 3 
 Comst. 53 ; Williams v. Powell, 1 Ired. Eq. 460; Scott v. Freeland, 7 
 Sm. & M. 410 ; Sullivan v. Blackwell, 28 Mississ. 737 ; Wright v. Ar- 
 nold, 14 B. Monr. 638 ; physician and patient : Billage v. Southee, 9 
 Hare, 534 ; Ahearne v. Hogan, 1 Drury, 310 ; Whitehorn v. Hines, 1 
 Munf. 559 ; see, however, Gogget v. Lane, 12 Mo. 215 ; or any other 
 relation, connection, or position in which an undue advantage, influence, 
 or control may be obtained or exercised over the judgment of another. 
 See Cooke v. Lamotte, 15 Beav. 234 ; Ahearne v. Hogan, 1 Drury, 310 ; 
 Espey V. Lake, 16 Jur. 1106, 10 Hare, 260 ; Sears v. Shafer, 2 Seld. 
 268. It has been recently held, however, that a provision in a will, m 
 favor of the solicitor by whom the will is drawn, will not be held void 
 
OF KESCISSION AND CANCELLATION. 413 
 
 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 in- 
 fluence or knowledge, but gave his client all that reason- 
 able advice against himself which it was his duty to have 
 given him against a third person. (7i) A guardian, taking 
 from his ward, is bound by the same rule ; a minister of 
 religion, *taking from those under his spiritual 
 charge, may be bound by it with even greater '- -■ 
 stringency. (*) The same general principle applies to 
 all the variety of relations in which dominion may be 
 exercised by one person over another; but in proportion 
 as the relationship is less known and definite, the pre- 
 sumption of fraud is less strong. "Where the known and 
 definite relationship exists of trustee and cestui que trust, 
 attorney and client, or guardian and ward, the conduct 
 of the party benefited must be such as to sever the con- 
 nection, 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 connec- 
 tion may have caused. Where the only relation is that 
 of friendly habits and habitual reliance on advice and 
 assistance, 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, 
 
 (h) Edwards v. Meyricb, 2 Hare, 60. 
 
 (t) Huguenin v. Basely, 14 Ves. 273 ; Thompson v. Heffernan, 4 
 Dm. & W. 285. 
 
 in equity, unless where it would be so held at law, or in the ecclesias- 
 tical courts. Hindson v. Wetherell, 18 Jur. 499. 
 
 As to contracts by trustees, agents, &c., see ante, 61, note.J 
 
 • [See Miller v. Welles, 23 Conn. 21.J 
 
414 Adams's doctrike of equity. 
 
 so as to distinguish precisely between the effects of 
 natural and often unavoidable kindness, and those of 
 undue influence or undue advantage. [Ic) 
 
 Another instance of fraud where there is a fiduciary 
 relation is when a person having a power of appoint- 
 ment for the benefit of others, uses it by contrivance for 
 his own benefit. Thus, if a parent has a power to appoint 
 to such of his children as he may choose, he cannot ap- 
 point it to one of the children upon a bargain beforehand 
 for his own benefit. (Z)' It was also formerly held, that 
 illusory appointments under a power were void in 
 equity ; i. e., appointments of a nominal, instead of a 
 substantial share to one of the members of a class, 
 where power was given to appoint amongst them all. 
 An appointment of this kind was clearly valid at law ; 
 and it would perhaps be difficult *to reconcile 
 L -I with principle its avoidance in equity. The doc- 
 trine is now abolished by statute, (m)^ 
 
 On the same principle it is held, that where a marriage 
 
 (h) Hunter v. Atkins, 3 M. & K. 113 ; Dent v. Bennett, 4 M. & C. 
 269. 
 
 (l) Daubeny v. Cockburn, 1 Meriv. 62G ; 2 Sug. on Powers, c. si, s. 
 2 ; [or for benefit of a husband : 19 Jur. 50.] 
 
 (m) Butcher v. Butcher, 9 Ves. 382 ; 1 Sug. on Powers, c. vii, s. 6 ; 
 11 Geo. 4 & 1 Wm. 4, 0. 46. 
 
 ^ [The fraudulent exercise of a power upon a corrupt bargain as to 
 one portion, may be sustained as to a distinct part uninfluenced by such 
 bargain, though both by the same deed. Rowley v. Rowley, 18 Jur. 
 306 ; 1 Kay, 242 ; 23 L. J. Ch. 275. A benefit to the appointor, is a 
 corrupt motive, though such benefit does not come out of the fund ap- 
 pointed, semhle. Rowley v. Rowley, ut supr. See also on this subject, 
 Agassiz V. Squire, 19 Jur. (1 Id. N. S.) 50.] 
 
 ^ [This doctrine has been disapproved of in the United States : see 
 Fronty v. Pronty, 1 Bail. Eq. 529 ; Cowles v. Brown, 4 Call, 477; note 
 to Aleyn v. Belchier, 1 Lead. Cas. Eq. 302, 1st Am. Ed.] 
 
OF KESCISSION AND CANCELLATION. 415 
 
 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 consent 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 ho- 
 nestly, 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 in- 
 quiry are either directly fraudulent at law, or are held 
 fraudulent in equity by analogy to law. There is an- 
 other class of equitable fraud in which the legal analogy 
 is less perceptible. The fraudulent transactions here 
 referred to are bargains made with expectant heirs or re- 
 maindermen, during the lifetime and without the know- 
 ledge of the parent or other ancestor.^ Bargains of this 
 
 (n) Clarke v. Parker, 19 Ves. 1. 
 
 ' See Jenkins et al. v. Pye et al. 12 Peters, 241 ; and also Varick v. 
 Edwards, 1 Hoff. Ch. R. 383, where it was held that the sale of the ex- 
 pectation of an heir of an inheritance, in real as well as in personal estate, 
 will he supported if made bona fide and for a valuable consideration ; 
 [and see Larrabee v. Larrabee, 34 Maine, 477. The purchaser of a re- 
 versionary interest, at least from an expectant heir, is bound, if the trans- 
 action be impeached within a reasonable time, to satisfy the Court that 
 he gave the market value. Lord Aldborough v. Trye, 7 CI. & F. 436; 
 Edwards v. Burt, 2 De G-. Macn. & Gord. 55. The mere reference to 
 an actuary, to determine such value, without regard to local circumstances 
 01' the like, is not enough. Edwards v. Burt, ut sup. An heir in tail, 
 who is entitled to an immediate possession of one-half the land, and to 
 the other half on the death of a tenant by the curtesy, is not, it would 
 
416 ADAMS'S DOCTRINE OF EQUITY. 
 
 kind are not necessarily and absolutely void. They may 
 be sustained ah initio, if they are proved free of unfair- 
 ness or inadequacy ; or they may be made good after- 
 wards 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 ancestor, who is misled into 
 leaving his *estate not to his heir or family, but 
 L -" to a set of artful persons, who have divided the 
 spoil beforehand. 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 neces- 
 sarily, for the costs of suit as on a common decree to re- 
 deem, (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 enjoyment is postponed. There is, 
 therefore, no fraud on any third party ; and an equity to 
 set aside a sale, in the absence of fraud or trust as between 
 the immediate parties, can rest on little more than mere 
 
 (o) King V. Hamlet, 2 M. & K. 456; 3 01. & F. 218 j Roberts v. 
 Tunstall, 4 Hare, 257. 
 
 (p) Earl of Chesterfield v. Janssen, 1 Atk. 301 ; 2 Ves. 125; Pea- 
 cock V. Evans, 16 Ves. 512 ; King v. Hamlet, 2 M. & K. 456; 3 CI. 
 & F. 218; Newton v. Hunt, 5 Sim. 511; Edwards v. Browne, 2 Coll. 
 100; 1 Sug. V. & P. 444-464; 1 Story on Equity, s. 334-348. 
 
 seem, an lieir expectant, within the rule. Davidson v. Little, 22 Penn. 
 St. 252.] 
 
OF RESCISSION AND CANCELLATION. 417 
 
 improvidence in the bargain. (5) 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 favor- 
 able terms on account of the attendant risk. 
 
 On the same principle a bond by a young woman se- 
 cretly given to a man, conditioned to pay hira a sum of 
 money if she did not marry 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 pa- 
 rent, 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 may 
 be rescinded, though not vitiated by illegality or ■- -■ 
 fraud, is that it has been carried on in ignorance' or mis- 
 take of facts material to its operation. 
 
 The most direct illustration of this principle occurs in 
 the doctrine of the common law, that money paid volun- 
 tarily under a mistake of fact may be recovered back as 
 money had and received.^ On the same principle, acts 
 
 (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. 
 
 ' [A party relying on ignorance must sbow that he could not have ob- 
 tained the necessary information vpith due diligence. Wason v. Ware- 
 ing, 15 Beav. 151.] 
 
 ' The Court will open settlements made by mistake, although receipts 
 in full have passed. McCrae v. Hollis, 4 Desau. 122 ; and money paid 
 by mistake, and on a usurious agreement above the legal interest, was 
 
 27 
 
418 ADAMS'S DOCTRINE OF EQUITY. 
 
 which have been done voluntarily under a like mistake 
 may be recalled or annulled by suit in equity; as, for 
 example, where a deed of covenant, stipulating that any 
 moneys which might be received by the defendant under 
 certain circumstances 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 accord- 
 ance with the same doctrine a contract may be set aside 
 if made for a consideration which is really non-existent,, 
 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. (<) 
 
 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 re- 
 lease or compromise ; and there are three forms in which 
 such ignorance or mistake may exist, viz. : 1. Where 
 the release or compromise refers to other matters, and 
 the facts originating the particular right are unknown 
 
 (s) East India Company v. Donald, 9 Ves. 275. 
 (0 Hitchcock V. Giddings, 4 Price, 135; 1 V. & P. 389 ; Colyerv. 
 Clay, 7 Bea. 188. 
 
 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. Baruett, 6 J. 
 J. Marsh. 499. But see Clarke v. Duteher, 9 Cow. 674 ; [Bispham v. 
 Price, 15 How. U. S. 162. On the subject generally, see notes to Sta- 
 pilton V. Stapilton, 2 Lead. Cas. Eq. p. ii, 265, 1st Am. Ed.; Larrabee 
 V. Larrabee, 34 Maine, 477; Hoge v. Hoge, 1 Watts, 216; Steele v. 
 White, 2 Paige, 478 ; Currie v. Steele, 2 Sandf. S. C. 542; Bradley v. 
 Chase, 22 Maine, 524.J 
 
OF RESCISSION AND CANCELLATION. 419 
 
 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 5 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 mistake as 
 to the facts which originate that right, such in- L -• 
 strument would beset aside in equity, (m)^ There ap- 
 pears, 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, what- 
 ever 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 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 parties was in error as to the amount 
 
 («) Farewell v. Coker, cited 2 Meriv. 353 ; Najlor v. Winch, 1 S. & 
 S. 555, 562; Pritt v. Clay, 6 Bea. 503. 
 
 {v) Stockley v. Stookley, 1 Ves. & JB. 23, 30 ; Dunnage v. White, 1 
 Swanst. 137; Neale v. Neale, 1 K. 672; Westby v. Westby, 1 Conn. 
 & L. 537 ; Gordon v. Gordon, 3 Swanst. 400, 
 
 ^ See note to pp. 168, 169. 
 
420 Adams's doctrine of equity. 
 
 of benefit which he relinquished, cannot create an 
 equity, {wy 
 
 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 igno: 
 ranee of the law."(a;)^ The principle ought to be the 
 same in equity. The authorities which appear most 
 
 (m)) Attwoodv. , 1 Russ. 353; 5 Russ. 149; Leonard v. Leonard, 
 
 2 Ball. & B. 171; Stewart v. Stewart, 6 CI. & F. 911. 
 (x) Bilbie v. Lumley, 2 East, 469. 
 
 1 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, 309 ; and Vol. 23 of the American Jurist, pages 143-371, 
 where the authorities are collected and compared upon this point. 
 [Where there is a mistake all round as to the legal effect of a marriage 
 settlement, and a family arrangement is effected, not as to the right thus 
 mistaken, but as to a collateral matter arising therefrom, such arrange- 
 ment will be set aside. Lawton v. Campion, 18 Jurist, 818; 23 L. J. 
 Oh. 505. 
 
 So if a party, in ignorance of a plain and settled principle of law, is 
 induced to give up his property, that ignorance is a ground for equitable 
 relief. But if the question be one which is in any way doubtful, and 
 the doubtfulness of that question is made the basis of any arrangement 
 or agreement, especially a family one, the Court will give no relief. 
 Stone V. Godfrey, 18 Jur. 165, affi'd Id. 524 ; 5 De G. M. & G. 76. 
 
 A compromise effected in a suit, where the complainant untruly alleged 
 himself tenant in tail, but set forth documents which showed him only 
 tenant for life, will not be set aside on the ground of mistake arising 
 from such erroneous allegation. Richardson v. Eyton, 2 De G. M. & 
 G. 79. See also as to setting aside family arrangements on mistake of 
 law, Ashhurst v. Mill, 7 Hare, 502, affi'd 12 Jur. 1035.] 
 
OP RESCISSION AND CANCELLATION. 421 
 
 opposed to it are those of Bingham v. Bingham, (?/) and 
 Lansdown v. Lansdown.(z) In the *first case p^-,Q„-, 
 the defendant had sold to the plaintiff an estate, ^ J 
 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 case from any 
 other purchase in which the vendor turns out to have 
 no title. In both there is a mistake, 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 arrangement 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 
 
 (y) 1 Ves. Sr. 126. (z) Mosley, 364; 2 Jac. & W. 205. 
 
 (a) 6 CI. & F. 968. 
 
422 Adams's doctrine, of equity. 
 
 maxim to criminal cases is not recognized by modern 
 decisions. (6) It is said, too, that if a party acting in 
 ignorance of a plain and settled principle of law is in- 
 duced to give up a portion of his undisputable property 
 to another, under the name of a compromise, he shall 
 be relieved from the effect of his mistake, (c) Subject, 
 however, to any exception which may exist on this 
 ground, it seems now to be clearly established 
 L J that in *equity as well as at law, a mere mistake 
 of law, where there is no fraud or trust, and no mistake 
 of fact, is immaterial, (d) 
 
 The remedy which the Court affords on a void trans- 
 action is the replacement of the parties in statu quo. If, 
 for example, a bill be filed by the obligor of a 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 par- 
 ties to their original positions, and will not relieve the 
 
 (6) Stewart v. Stewart, 6 CI. & Fin. 968. 
 
 (c)Naylor v. Winch, 1 S. & S. 555, 564; see also Stockley t. 
 Stockley, 1 Ves. & B. 31 5 Saunders v. Lord Annesley, 2 ScU. & L. 73, 
 101. 
 
 (rf) Cholmondeley v. Clinton, 2 Meriv. 171, 233, 328 ; Stewart v. 
 Stewart, 6 CI, & F. 911; Denys v. Shuckburgh, 4 Y. & C. 42; 1 Story 
 on Equity, s. 116-132. 
 
 1 [Daniell v. Mitchell, 1 Story, 173 ; Harding v. Handy, 11 Wheat. 
 103 ; Dower v. Fortner, 5 Port. 9 ; Brogden v. Walker, 2 Harr. & John. 
 285; Waters Y. Lemon, 4 Hamm. 229; Lowry v. Cox, 2 Dana, 469 ; 
 White V. Trotter, 14 Sm. & Marsh. 30 ; Bruen v. Hone, 2 Barb. S. C. 
 586 ; Doggett v. Emerson, 1 Wood. & M. 195 ; Shaeffer v. Slade, 7 
 Blaokf. 128 ; Mill v. Hill, 3 H. Lords Gas. 828. This obligation of 
 " doing equity" in such cases, does not extend to transactions uncon- 
 nected with the one in suit. Wilkinson v. Fowkes, 9 Hare, 592.] 
 
OF RESCISSION AND CANCELLATION. 423 
 
 obligor from his liability, leaving him the fruits of the 
 transaction of which he complains, (e) If, again, a de- 
 cree 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 principle, 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 complain- 
 ing has done any act, when relieved from his necessities, 
 by which the rights of the other are affected, so that he 
 cannot be replaced in statu quo, he cannot afterwards re- 
 pudiate the contract, (g') 
 
 In addition to the jurisdiction for setting aside con- 
 tracts 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 *of any 
 Court; 2. It may be by a rule of Court, made"- -■ 
 by consent in an 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 proceedings are 
 
 (e) Hanson v. Keating, 4 Hare, 1-6. 
 
 (/) Byne v. Vivian, 5 Ves. 604. 
 
 (g) King V. Hamlet, 2 M. & K. 456 ; 3 01. & F. 218. 
 
 ' The subject of arbitration is regulated in most of the States, as in 
 Pennsylvania, by special statutes. 
 
424 ADAMS'S DOCTRINE OF EQUITY. 
 
 actually depending. In those cases where the submis- 
 sion 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 where 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 revoca- 
 tion is at an end ;' and the award may be enforced by 
 either party, either by action on the award or on the 
 contract to refer, {i) or in a proper case by suit in equity 
 for specific performance, (^)^ or, if it has been made a 
 rule of Court, by an attachment for contempt. 
 
 In order to resist the enforcement of the award, it is 
 necessary that its validity be impeached. It is not suffi- 
 cient for this purpose to contend, or even to prove, that 
 it is unreasonable or unjust ; for the reason and justice 
 of the case are the very points referred 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, even in the absence of actual miscon- 
 
 (A) 3 & 4 Wm. 4, 0. 42, s. 39. 
 
 (i) Warburton v. Storr, 4 B. & C. 108. 
 
 (7c) Hall V. Hardy, 3 P. Wms. 187 ; Wood v. Griffith, 1 Sw. 43-54. 
 
 1 See Tobey v. County of Bristol, 3 Story, 800. 
 
 ' [Smith V. Smith, 4 Band. 95; MoNear v. Bailey, 18 Maine, 251; 
 Pawling V. Jackman, 6 Litt. 1 ; McNeil v. Magee, 5 Mason, 244; Jones 
 V. Boston Mill Corp. 4 Pick. 507; Cook v. Vick, 2 How. Miss. 882; 
 Kirksey v. Pike, 27 Alab. 383 ; Wood v. Shepherd, 2 Patt. & H. 452; 
 Story V. Norwich & Worcester, 24 Conn. 94. An agreement to refer 
 will not, however, be specifically enforced. Conner v. Drake, 1 Ohio, 
 N. S. 166.] 
 
 3 See Schenck's Admr. v. Cuttrell, 1 Green Ch. 297 ; Herriok v. Blair, 
 1 John. Ch. R. 101 ; Shermer v. Beale, 1 Wash. 11 ; Pleasants et al. 
 
OF RESCISSION AND CANCELLATION. 425 
 
 duct, the same result may follow, if the arbitrators have 
 failed in performance of their duty ; e. g., if they have 
 not declared their decision with certainty ; if their award 
 be not final on all points referred ; if it exceed the autho- 
 rity 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 -.{l) or if they have acted 
 on a mistake as to a material fact, admitted by them- 
 selves to have been made and to have influenced their 
 judgment.' But unless *they voluntarily ^^-ke ^ ^ 
 the admission, they cannot be compelled to dis- ^ ^ 
 close the grounds of their judgment, (m) 
 
 (0 Toung V. Walter, 9 Ves. 364 ; Steff v. Andrews, 2 Mad. 6. 
 (m) Knox v. Simmons, 1 Ves. J. 369 ; Anon. 3 Atk. 644. 
 
 V. Boss, 1 Wash. 156; Van Cortlandt v. Underbill, 17 John. 405; Head 
 T. Muir, 3 Eand. 122 ; Hardeman v. Burge, 10 Yerg. 202 ; [Bispham 
 T. Price, 15 How. U. S. 162 ; Tracy v. Herriek, 3 Foster, 881.] 
 
 A mistake in law must be a plain one, and upon a material point 
 affecting the case. Schenck's Admr. v. Cuttrell, 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 tofo. Taylor's Admr. v. 
 Nicolson, 1 Hen. & Munf. 66; McDaniell v. Bell, 3 Heywood, 264; 
 Gibson et al. v. Broadfoot, 3 Desau. 11. 
 
 A mere mistake of judgment in arbitrators, is not sufficient evidence 
 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; 
 [Roloson V. Carson, 8 Maryl. 208 ; Bridgman v. Bridgman, 28 Mo. 272.] 
 When, however, the arbitrators heard evidence, without giving the oppo- 
 site party an opportunity to cross-examine or of being heard, the award 
 was set aside. Shinnie v. Coil, 1 McC. Ch. 478. So, also, when they 
 refused to hear evidence pertinent and material to the controversy. Van 
 Cortlandt V. Underbill, 17 John. Rep. 405; [see Severance v. Hilton, 
 32 N. H. 289 ; McGuire v. O'Halloran, Hill & Denio, 85.] 
 
 ' [The more recent authorities in England, have thrown very conside- 
 rable doubt upon the question of the admissibility of evidence of arbitra- 
 tors, to show that they made their award under a mistake as to some 
 
426 ADAMS'S DOCTRINE OF EQUITY. 
 
 If any of these objections appear on the face of the 
 award, they invalidate it, and preclude its enforcement 
 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 
 
 material fact. In the case of Hall and Hinds, 2 M. & Gr. 847, evidence 
 of this nature was admitted ; but this decision was severely criticised in 
 Phillips V. Evans, 12 M. & W. 309, and though not overruled directly, 
 yet it was considered as hardly to be supported. So in Re Stroud, 8 C. 
 B. 501, the question was considered very doubtful. In Hutchinson v. 
 Shepperton, 13 .Q. B. 955, however, the admission of the evidence was 
 held to be a matter of discretion, rarely to be exercised, but not to be 
 refused in a case of gross injustice, as in that, which was one of account, 
 where the parties agreed upon the amount due, on a particular claim, but 
 the arbitrator misunderstanding them, and supposing that it was no longer 
 a matter of difference, omitted it from his award. It seems, however, 
 clear on the English authorities that no mistake upon the evidence itself, 
 however gross, will be ground for relief. In the United States, there 
 has been a number of decisions on the subject, from which no certain 
 rule can be drawn, except that such evidence would not be received ex- 
 cept in peculiar cases. Thus in Boston Water Power Co. v. Gray, 6 
 Metcalf, 169, it was held that mistake as to conclusions of fact, or of sci- 
 entific principles applied in an award, could not be cured by the after 
 admission of the arbitrators, but it was said that it was different where 
 the mistake was in some preliminary fact, inadvertently assumed and 
 believed, as in the use of false measures or weights ; see Roloson v. Car- 
 son, 8 Maryl. 208. And in Eaton v. Eaton, 8 Ired. Eq. 102, the rule 
 of the inadmissibility of such evidence, was stated, on the authority of 
 Phillips V. Evans, to be without exception. Rufiin, C. J., dissented, 
 however, in a forcible opinion ; and certainly it is not difficult to ima- 
 gine cases in which such an extreme doctrine would be productive of 
 most absurd injustice. See further, Bell v. Price, 2 Zabriskie, 591; 
 Bigelow v. Maynard, 4 Cush. 316 ; Hartshorne v. Cuttrell, 1 Green. Ch. 
 297 ; Bumpass v. Webb, 4 Port. Alab. 71. The rules on this subject 
 are the same in equity as law. See Russell on Arbitrators, 301, &c.j 
 Eaton V. Eaton, ut supr.j 
 
OF RESCISSION" AND CANCELLATION. 427 
 
 independent application to set aside the award, (n) And 
 where the submission rests on mere agreement, and is 
 not a rule of any Court, the jurisdiction for this purpose 
 is exclusive 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 refer- 
 ence 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 ex- 
 clusive 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. 
 
 (b) Braddiek y. ThompsoD, 8 East, 344 ; Pedley v. Goddard, 7 T. 
 E. 73. 
 
 (o) Goodman v. Sayers, 2 J. & "W. 249. 
 
 Ip) Nichols V. Chalie, 14 Ves. 265 ; [Elliott v. Adams, 8 Black. 103 ; 
 but see Waples v. Waples, 1 Harring. 392.] 
 
 ' [Or has been agreed to be made such. Heming v. Swinnerton, 1 
 Coop. C, C. 386 ; Nichols v. Koe, 3 M. & K. 431. J 
 
428 ADAMSES DOCTRINE OF EQUITY. 
 
 [*194] *CHAPTEE VI. 
 
 OF INJUNCTION AGAINST PROCEEDINGS AT LAW — BILLS OP 
 PEACE — INTERPLEADER — INJUNCTION AGAINST TORT. 
 
 It has been already observed, in treating of the equity 
 for rescission, that it is effectuated, not only by cancel- 
 lation 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 injunctive relief is not 
 confined to the equity for rescission, 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 an act is 
 commenced or threatened, by which an equity would be 
 infringed.^ The restraint may be imposed either by a 
 final decree, forbidding the act in perpetuum on establish- 
 ment of the adverse right, or by interlocutory writ, for- 
 bidding it pro tern-pore whilst the right is in litigation. 
 
 The injunction against proceedings in another Court 
 is an auxiliary decreie 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 vendor, bound to 
 
 ^ [This species of injunction can no longer be granted in New York. . 
 Grant v. Quick, 5 Sandf. S. C. 612.] 
 
OF INJUNCTION, ETC. 429 
 
 specific performance, against the purchaser.^ Tlie 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 *existence, however, of such ^^ r-^-.r,f,-, 
 equitable element, or the pendency of a suit ■- -^ 
 respecting it, is not recognized by those tribunals as a 
 bar to their own procedure ; but the bar must be made 
 effectual 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 com- 
 monly applies are those before the common law Courts. 
 
 (a) Sheffield v. Duchess of Buckinghamshire, 1 Atk. 624 ; 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. Handy, 1 
 Johns. C. R. 6 ; Dale v. Roosevelt, 5 Johns. C. R. 174 ; Matter of 
 Merritt, 5 Paige, 125 ; Miller v. McCan, 7 Paige, 457 ; Delafield v. 
 State of Illinois, 26 Wend. 192 ; Beaty v. Beaty, 2 Johns. C. R. 430 ; 
 Denton v. Graves, Hopkins's R. 306 ; Bulows v. Committee of O'Neall, 
 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. Wood- 
 bridge, 3 Day, 508 ; Mitchell v. Oakley, 7 Paige, 68 ; Perrine v. 
 Striker, 7 Paige, 598 ; Tone v. Brace, 8 Paige, 597 ; Glenn v. Fowler, 
 8 Gill. & J. 340 ; Caldwell v. Williams, 1 Bailey C. R. 175 ; Mactier 
 V. Lawrence, 7 Johns. C. R. 206. 
 
 [No injunction to stay proceedings at law can be had against the 
 United States. Hill v. The U. S. 9 How. 386. 
 
 In general, the Court has no jurisdiction to restrain an indictment. 
 But where it makes an order to which all parties consent, or by which 
 all parties are bound, and then a party attempts to obstruct the officer 
 executing the order, by an indictment, as for forcible entry and de- 
 tainer, the Court will interfere by injunction. Turner v. Turner, 15 
 Jur. 218.] 
 
430 ADAMS'S DOCTRINE OF EQUITY. 
 
 The interlocutory writ is attainable as of course within 
 a very limited period after the commencement of a suit 
 so as to restrain proceedings at law, until the defendant 
 in equity has answered the bill, and has thus enabled 
 the Court to judge of their propriety. In order to pre- 
 vent 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 
 injunction.^ 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 plaintiif at liberty to proceed 
 to judgment. But if the plaintiff in equity make affi- 
 davit 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 de- 
 fendant is diligent enough to prevent the common in- 
 j unction from issuing, by filing a sufficient answer with- 
 in the time allowed, the only way to obtain the injunction 
 is by moving specially on the admissions in the answer. 
 If the proceedings at law have been commenced under 
 feuch circumstances that the plaintiff in equity has no 
 opportunity of obtaining the common injunction, a spe- 
 cial injunction may sometimes be obtained on affidavit 
 under very special circumstances before answer. (6) 
 
 (6) Drummond v. Pigou, 2 M. & K. 168; Bailey v. Weston, 7 Sim. 
 666. 
 
 ' In this country, the distinction between the common and special in- 
 junction, 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 officer to whom the power of the Court, for that purpose, 
 is delegated. See Buckley v. Corse, Saxton, 504; Hoffman's Ch. 
 Prao. 78. 
 
OF INJUNCTION, ETC. 431 
 
 *As soon as the defendant has put in a full 
 answer he may move to dissolve the injunction. ■- J 
 
 ' 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. Livingstone, 1 Johns. 
 C. R. 211; McFarland v. McDowell, 1 Car. Law Eep. 110; Cowles v. 
 Carter, 4 Ired. Eq. R. 105 ; Livingston v. Livingston, 4 Paige C. E. 
 Ill; aibson v. Tilton, 1 Bland. C. R. 355; Perkins v. Hallowell, 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 ; Stou- 
 tenburgh v. Peck, 3 Green Ch. 446 ; HoUister v. Barkley, 9 N. H. 
 230; Eldred v. Camp, Barring. C. R. 163; [Freeman v. Elmendorf, 3 
 Halst, Ch. 655; Adams v. Whiteford, 9 Gill. 501; West v. Rouse, 14 
 Geo. 715; Mahone v. Central Bank, 17 Id. Ill; Greenin v. Hoey, 1 
 Stockt. (N. J.) 137. For the practice in New York, see Brewster v. 
 Hodges, 1 Duer, 609; Loomis v. Brown, 16 Barb. 325.] But there is 
 no inflexible rule to this effect; the granting and continuing an injunc- 
 tion must always rest in the sound discretion of the Court, to be go- 
 verned by the nature of the case. Roberts v. Anderson, 2 Johns. C. 
 R. 204; Poor v. Carlton, 3 Sumner, 70; Bank of Monroe v. Schermer- 
 horn, 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; Hutchins v. Hope, 12 Gill. & J. 244; Lyrely v. Wheeler, 3 
 Ired. Eq. 170; Nelson v. Owen, Id. 175; [Drury v. Roberts, 2 Md. 
 Ch. 157; Rembert v. Brown, 17 Alab. 667; Wilson v. Mace, 2 Jones 
 Eq. 5.] 
 
 It is a general rule, that an injunction will not be dissolved, on an- 
 swer, until the answers of all the defendants are put in. [See Money 
 V. Jordan, 13 Beav. 229; Bait. & Ohio R. R. v. Wheeling, 13 Gratt. 
 40.] But there are many exceptions : e. g., it will be considered unne- 
 cessary, if those who have not answered are- merely formal parties. 
 Higgins V. Woodward, Hopkins's C. R. 342. So may it be dissolved 
 upon the answer of one or more defendants within whose knowledge the 
 facts charged especially or exclusively lie, although other defendants 
 have not answered. Dunlap v. Clements, 7 Alab. R. 539; Coleman v. 
 
432 ADAMS'S DOCTRINE OF EQUITY. 
 
 And it is then a question for the discretion of the Court, 
 whether on the facts disclosed by the answer, or, as it is 
 technically termed, on the equity confessed, the injunc- 
 tion 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 
 
 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 folly 
 answered. Depeyster v. Graves, 2 Johns. G. R. 148; Noble v. Wilson, 
 
 1 Paige, 164; Stoutenburgh v. Peck, 3 Green Ch. 446; Vliet v. Low- 
 mason, 1 Green Ch. 404; Price v. Clevenger, 2 Green Ch. 207. See 
 also Goodwyn v. State Bank, 4 Desau. R. 389. 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 requi- 
 site steps, with reasonable diligence, to expedite his cause. Depeyster 
 V. Graves, ubi supra. See also Bond v. Hendricks, 1 A. K. Marsh. 
 594. The injunction cannot be dissolved, if the answer be evasive and 
 apparently deficient in frankness, candor, or precision. Little v. Marsh, 
 
 2 Ired. Eq. 18; Williams v. Hall, 1 Bland C. R. 198. Nor if it be 
 contradictory. Tong v. Oliver, Id. 199. Nor if there be extreme im- 
 probability in its allegations. Moore v. Hylton, 1 Dev. Eq. 429. Nor 
 if it be merely upon information and belief. Ward v. Van Bokkelen, 1 
 Paige, 100; Apthorpe v. Comstock, Hopkins's R. 143; Poor v. Carle- 
 ton, 3 Sumner, 70. And, moreover, where the equity of an injunction 
 is not charged to be in the knowledge of the defendant, and the defen- 
 dant merely denies all knowledge and belief of the facts alleged therein, 
 the injunction will not be dissolved, on the bill and answer alone. 
 Rodgera 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 complainant's bill. 
 It, therefore, makes no difference on such an application that the bill is 
 supported by the oaths of several complainants. Manchester v. Dey, 6 
 Paige, 295. 
 
 [An injunction cannot be obtained on an amended bill having been 
 dissolved on the original bill, for default, before appearance. Zulueta v. 
 Vinent, 14 Beav. 209; contra Eyton v. Mostyn, 3 De G. & Sm. 518. 
 See further, post, note to p. 356.] 
 
OF INJUNCTION, ETC. 433 
 
 equitable question, such question shall be preserved in- 
 tact until the hearing. But the particular mode of do- 
 ing this is matter of discretion. 
 
 If the plaintiff is willing to admit the demand at law, 
 and to give judgment in the action, but is unwilling to 
 pay money to the defendant, which, if once paid, it 
 might be difficult to recover, he may have the injunc- 
 tion continued on payment of the money into Court.' 
 If he is desirous to try his liability at law, the injunc- 
 tion will be dissolved with liberty to apply again after a 
 verdict ; but unless the defendant's right at law be ad- 
 mitted, 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 judg- 
 
 (c) Playfair v. Thames Junction Railway Company, 9 Law Jour. N. 
 S. 253; 1 Eailway Cases, 640; Barnard v. Wallis, Cr. & P. 85; Ben- 
 tinck V. Willink, 2 Hare, 1. 
 
 ' [See Anderson v. Noble, 1 Drewry, 143.] 
 
 ' [In Macon, &c., R. R. Co. v. Parker, 9 Geo. 394, an injunction was 
 granted to restrain the sale under several fi. fa's, of a railroad of a hun- 
 dred miles long, and running through six counties, on the ground of irre- 
 parable injury, and the Court proceeded, instead, to decree a sale of the 
 whole at one time.] 
 
 23 
 
434 ADAMS'S DOCTRINE OF EQUITY. 
 
 ment, the Chancellor grant an injunction and commit 
 the plaintiff at law to the Fleet, the Court of Kind's 
 Bench will discharge him by habeas corpus. In the 
 reign of Henry 8, the assertion of this jurisdiction 
 *was one of the articles of impeachment against 
 L J Cardinal Wolsey. The same opposition was con- 
 tinued against Wolsey 's successor, Sir Thomas More. 
 And in the reign of James 1, under the Chancellorship 
 of Lord EUesmere, a vehement 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 favor 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 obtained 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 rea- 
 sonable diligence have been discovered before the trial. 
 The rule on this subject appears to be as follows : First: 
 that if, after judgment, additional circumstances are dis- 
 covered or cognizable at law, but converting the contro- 
 versy into matter of equitable jurisdiction, the Court of 
 Chancery will interpose. Secondly : that even though 
 the circumstances so discovered would have been cogniz- 
 able 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 concealment, the 
 mere fact of their late discovery will not of itself create 
 an equity ; although if a bill of discovery has been filed 
 
 id) Note on Crowley's case, 2 Sw. 22, n. 
 
OF INJUNCTION, ETC. 435 
 
 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 mistake in pleading or other 
 mismanagement, or by a supposed error in the judgment 
 of the Court, (e)' 
 
 (c) Bateman v. Willoe, 1 Sch. & L. 201 ; Harrison v. Nettleship, 2 
 M. & K. 423 ; Taylor v. Sheppard, 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, unmixed 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 Cranch, 
 332. Especially in case of fraud. Lee v. Baird, 4 Hen. & Munf 453; 
 Wierieh v. De Zoya, 2 Gilman, 385; Powers v. Butler, 3 Green Ch. 
 465; Emerson v. IJdall, 13 Verm. 477 ; [Rust v. Ware, 6 Gratt. 50 ; 
 Humphreys v. Leggett, 9 How. U. S. 297 ; Hahn v. Hart, 12 B. Monr. 
 426 ; Deaver v. Erwin, 7 Ired. Eq. 250 ; Nelson v. Rockwell, 14 Illi- 
 nois, 875; Burton V. Wiley, 26 Verm. 430; Conway v. Ellison, 14 
 Ark. 360; Trevor v. McKay, 15 Geo. 550 ; Moore v. Gamble, 1 Stock- 
 ton, 246; Hendrickson v. Hinckley, 17 How. U. S. 443. An injunction 
 may be granted against a judgment on the ground of a subsequent re- 
 lease, though both a motion to set aside, and for an axidita querela, have 
 been made and refused in the Court in which the judgment was ob- 
 tained. Williams v. Roberts, 8 Hare, 315. As to injunction against a 
 decree in equity on the ground of after-discovered evidence, see Basye 
 V. Beard, 12 B. Monr. 581. In Ridgway v. Bank of Tennessee, 11 
 Humph. 523, it was held that a judgment on which the sheriff by col- 
 lusion had falsely returned a service on the defendant, could be en- 
 joined; but, contra, Walker v. Bobbins, 14 How. U. S. 584. In 
 general, however, a Court of equity will not enjoin on the ground of 
 the irregularity of a judgment. Suydam v. Boals, 4 McLean, 12 ; 
 Methodist Church v. Mayor, &c. of Baltimore, 6 Gill. 391.] And no 
 injunction will be granted against a judgment, where there has been 
 negligence on the part of the complainant, in availing himself of a de- 
 fence at law, or other neglect. See Truly v. Wanser, 5 How. U. S. R. 
 
436 Adams's doctrine op equity. 
 
 The jurisdiction to enjoin against proceeding in other 
 Courts is not limited *to proceedings in the Courts 
 L J of law, although it is more usually exerted with 
 reference to them. But it is equally applicable to pro- 
 ceedings in the Ecclesiastical and Admiralty Courts,. in 
 the Colonial Court, and even in the Courts of foreign 
 and independent countries, where the parties are person- 
 ally within the jurisdiction, and are attempting to pro- 
 ceed elsewhere in respect of part of a transaction, the 
 whole of which can be investigated by the Court of 
 
 141 ; Essex v. Berry, 2 Verm. 161 ; Williams v. Lockwood, 1 Clarke 
 E. 172; Southgate v. Montgomery, 1 Paige C. K. 41; Stanard v. 
 Eogers, 4 Hen. & Munf. 438 ; farmers' Bank v. Vanmeter, 4 Rand. 
 R. 553 ; Brickell v. Jones, 2 Hay. R. 357 ; Fentris v. Robins, K 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 ; Thomas v. Philips, 4 S. & M. 358 ; [Little v. 
 Price, 1 Maryl. Ch, 182; Sample v. Barnes, 14 How. U. S. 70; War- 
 ner v. Conant, 24 Verm. 351; Lockard v. Lockard, 16 Alab. 423; 
 Foster v. State Bank, 17 Id. 672 ; Skinner v. Deming, 2 Cart. Ind. 
 558 ; Prewitt v. Perry, 6 Texas, 260 ; Briesch v. McCauley, 7 Gill, 
 189; Hood v. N. Y. & N. H. Railroad Co. 23 Conn. 609; Wynn v. 
 Wilson, 1 Hempst. C. C. 698; Harnsberger v. Kinney, 13 Gratt. 511; 
 Conway v. Ellison, 14 Ark. 360 ; Dickerson v. Comm'rs, 6 Ind. 128 ; 
 Vaughn V. Johnson, 1 Stockt. 173 ; George v. Strange, 10 Gratt. 499.] 
 Nor where the only ground is discovery, which might have been sought 
 and obtained before the judgment. Lansing v. Eddy, 1 John. Ch. E; 
 49 ; Brown v. Swann, 10 Pet. 497 ; Thompson v. Berry, 3 Johns. C. 
 R. 395 ; Bartholomew v. Yaw, 9 Paige, 165 ; MoGrew v. Tombeckbee 
 Bank, 5 Porter, 547. [An administrator, however, who must derive his 
 information chiefly from others, is not bound by the strict rules on this 
 subject, and may obtain an injunction for a pretermitted defence, after 
 permitting a judgment in ignorance thereof. Hewlett v. Hewlett, 4 
 Edw. Ch. 9.] 
 
 [In Gough V. Pratt, 9 Maryl. 526, it was held, that even after judg- 
 ment at law upon a security given for a gaming debt, the defendant may 
 have relief in equity, although he did not resist the suit at law on that 
 ground.] 
 
OF INJUNCTION, ETC. 437 
 
 Chancery alone. (/)* The injunction, however, in these 
 cases, is not obtained as of course on the defendant's de- 
 fault, but must be the subject of a special application to 
 the CouYt.{g) Injunctions have also been granted on 
 special equities, to restrain parties from filing affidavits 
 of debt, with the intent of issuing a fraudulent fiat of 
 
 (/) Duncan v. McCalmont, 3 Bea. 409; Glascott v. Lang, 3 M. & 
 C. 451 ; Bunbury v. Bunbury, 1 Bea. 318. 
 (g) Anon. 1 P. Wms. 801 ; Macnamara v. Macquire, 1 Dick. 223. 
 
 ' A Court of Chancery will not, by injunction, restrain a suit or pro- 
 ceeding previously commenced in a Court of a sister State, or in any of 
 the federal Courts. Mead v. Merritt, 2 Paige, 402 ; Burgess v. Smith, 
 2 Barb. C. E. 276; [Coster v. Griswold, 4 Edw. Ch. 864. The United 
 States Courts, in general, are prohibited by statute (1793) from grant- 
 ing injunctions against proceedings in State courts ; and such power has 
 been denied to be in the District Court even in proceedings in bank- 
 ruptcy. Kittredge v. Emerson, 15 N. H. 227. See Eogers v. Cincin- 
 nati, 5 McLean, 387; Orton v. Smith, 18 How. 263. One Circuit 
 Court cannot control or restrain proceedings in another. Eoshell v. 
 Maxwell, 1 Hemp. 25. 
 
 In an action on the judgment of another State, proceedings may be 
 stayed by injunction, where such judgment was fraudulently obtained, 
 or has been since reversed. Sumner v. Marcy, 3 Wood & Mi n. 105; 
 McJilton V. Love, 13 111. 486 ; Pearce v. Olney, 20 Conn. 544 ; which 
 last case was affirmed in Dobson v. Pearce, 1 Duer, 143 ; affirmed on 
 appeal, see 3 Am. Law Eeg. 206; which was the original suit. 
 
 Where an administration suit was pending in England, a Scotch cor- 
 poration was restrained from proceeding against the intestate's estates in 
 Scotland, the service of the subpoena being at an office of the corpora- 
 tion in London. McLaren v. Stainton, 22 L. J. Ch. 274. In Pennell 
 V. Eoy, 17 Jur. 247, 3 De G. Macn. & G. 126, however, it was held 
 that the English assignees of a bankrupt owning real estate in Scotland, 
 could not maintain a bill for an injunction against an alleged creditor 
 not proving under the commission, who had attached the rents of the 
 real estate by suit in Scotland, though it appeared that the suit was en- 
 tirely frivolous.] 
 
438 ADAMS'S DOCTRINE OF EQUITY. 
 
 bankruptcy. (7i) 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 bankrupt's property, when once 
 it is determined what the property is, falls wholly within 
 the province of the Court of Bankruptcy. (^■) 
 
 If the Court in which the proceedings complained of 
 have been taken, is itself a Court of equitable jurisdic- 
 tion, and competent to adjudicate on the whole matter,' 
 an injunction cannot be obtained, unless the suitor 
 against whom it is asked, has been previously bound 
 by a decree of the Court of Chancery, or has voluntarily 
 submitted to the j urisdiction of that Court, (/c) 
 
 In addition to the injunctive jurisdiction in regular 
 suits, there is a similar authority exercised in a summary 
 Avay, where proceedings have been taken in another 
 Court, against or by oflScers of the Court of 
 L -I *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 proceeds is that of 
 giving efficacy to its own authority by rejecting foreign 
 interference. If its processes are improperly or irregu- 
 larly 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 ofl5- 
 
 (h) 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. 
 
 (Jc) Jackson v. Leaf, 1 J. & W. 229 ; Harrison v. Gurney, 2 J. & 
 W. 563 ; Boulter v. Boulter, 2 Bea. 196, n. ; Infra, Administration. 
 
 ' [Therefore the common injunction is now obsolete in New York. 
 See Grant v. Quick, 5 Sandf. S. C. 612.] 
 
OF BILLS OF PEACE. 439 
 
 cers misconduct themselves, that is a matter which may, 
 at the discretion of the Court, be either left to the ordi- 
 nary tribunals, or examined by itself. But the latter 
 course is generally 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 proceeding 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 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 protection.' 
 
 (0 I'rowd V. Lawrence, 1 J. & W. 635 ; Phillips v. Worth, 2 E. & 
 
 M. 638; Aston v. Heron, 2 M. & K. 390; Chalie v. Pickering, 1 K. 
 
 749 ; Empringham v. Short, 3 Hare, 461 ; Evelyn v. Lewis, 8 Hare, 
 
 , 472; Darley v. Nicholson, 1 Conn. & L. 207. [Peck v. Crane, 25 
 
 Verm. 146.] 
 
 (m) Ee Weaver, 2 M. & C. 441; Blundell v. Gladstone, 9 Sim. 455; 
 Ambrose v. Dunmow Union, 8 Bea. 43. 
 
 • [See Black v. Shreve, 3 Halst. Ch. 440; Bond v. Little, 10 Geo. 
 395. In order to the maintenance of a bill of peace, the complainant 
 must have first established his title at law : Eldridge v. Hill, 2 Johns. 
 Ch. 281; Bond v. Little, 10 Geo. 395; Morgan v. Smith, 11 lUin. 194; 
 Gunn V. Harrison, 7 Alab. 585 ; Lowe v. Lowry, 4 Hammond, 78 ; Har- 
 mer v. Gwynne, 5 McLean, 313; Paterson and Hudson Eiver E. E. 
 Co. V. Jersey City, 1 Stockt. (N. J.) 434 ; Smith v. McConnell, 17 
 Illinois, 135 ; unless where the parties to the controversy are so numerous, 
 that a suit in equity is indispensable to comprehend them all, and to pre- 
 vent a multiplicity of suits. Eldridge v. Hill, ut supra; Nicholl v. Trus- 
 tees, &c. 1 John. Ch. 166; Lupeer Co. v. Hart, Harrington Ch. 157; 
 Nevitt V. Gillespie, 1 How. Miss. 108.] 
 
 Where a bill is filed for the purpose of preventing a multiplicity of 
 
440 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 an- 
 cient mill claims service to his mill from all the tenants 
 of a *particular district. In all these cases, the 
 L •J 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 binding 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 repre- 
 sented by an adequate number. If any question of right 
 be really in dispute it will be referred to the decision of 
 a Court of law ; and when the general right has been 
 fairly ascertained, an injunction will be granted against 
 further litigation, (n) If particular individuals have spe- 
 cial grounds of claim, those claims will be left untouched. 
 
 In order to originate this jurisdiction, it is essential 
 that there be a single claim of right in all, arising out of 
 some privity or relationship with the plaintiff. 
 
 (n) Mitf. 145, 146 ; How v. Bromsgrove, 1 Vern. 22 ; Tenham y. Her- 
 bert, 2 Atk. 483. 
 
 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. 
 NicoU, 3 Johns. 566. 
 
 Injunctions are granted to prevent trespasses where the mischief would 
 be irreparable, and to prevent a multiplicity of suits. Livingston v. Liv- 
 ingston, 6 John. Ch. K 497. 
 
OF BILLS OF PEACE. 441 
 
 A bill of peace, therefore, will not lie against indepen- 
 dent trespassers, having no common claim and no appear- 
 ance of a common claim, to distinguish them from the 
 rest of the community; as, for example, against several 
 booksellers who have infringed a copyright, 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 excep- 
 tions 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 some- 
 times 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 permanently esta- 
 blished. 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 de- 
 crees 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 
 
 (o) Mitf. 147, 148 ; DiUy v. Doig, 2 Ves. J. 486. 
 (p) City of London t. Perkins, 3 B. P. C. by Toml. 602; Mayor of 
 York T. Pilkington, 1 Atk. 282 ; Story on Pleading, s. 124, 125. 
 
 ' [No bill of peace will lie where the rights and responsibilities of the 
 defendants neither arise from, nor depend upon, nor are in any way con- 
 nected with each other. Kandolph v. Kinney, 3 Kand. 394.] 
 
442 ADAMS'S DOCTRINE OF EQUITY. 
 
 proof sufficient 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 impression 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 ad- 
 jacent grounds, and as claiming fisheries in that charac- 
 ter. The first of these grounds, as I have already 
 suggested, is hardly warranted by the report of that 
 case. The second ground appears to be that on which 
 Lord Hardwicke mainly relied, and is consistent with 
 the terms in which the case was spoken of by Lord 
 E\dor\.{q) 
 
 Bills of peace of the second class are those where a 
 right claimed by an individual is indefinitely litigated 
 by him without success. The necessity for bills of this 
 r*9n9n ^^^^ originates *in the nature of the action of 
 L J 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 
 
 (q) City of London v. Perkins, 3 B. P. C. 602; Mayor of York v. 
 Pilkington, 1 Atk. 282 ; Weale v. West Middlesex Waterworks, 1 J. 
 & W. 356, 369. 
 
OF BILLS OF INTERPLEADER. 443 
 
 the successful partj 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 questioned. 
 Lord Cowper, in a celebrated case, where the title to 
 land had been five times tried in ejectment, 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 
 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 liti- 
 gate the matter amongst themselves, without involving 
 the stakeholder in their dispute.^ 
 
 (r) Earl of Bath v. Shcrwin, Prec. Ch. 261; S. C. 4 B. P. C. by 
 Toml. 373; Mitf. 143, 144. 
 
 ' [See Marsh v. Eeed, 10 Ohio, 347. By statutory provision in Penn- 
 sylvania, and perhaps in other States, two verdicts in ejectment, for 
 either party, are an absolute bar to any future suit. Such provision will 
 not interfere with the right of a Court of the United States, to entertain 
 a bill of peace, as to ejectment, in its own jurisdiction, and the bill may 
 be maintained in a proper case, though the technical bar of the statute 
 does not apply. Craft v. Lathrop, 2 Wall, Jr. 103.] 
 
 ^ [Strange v. Bell, 11 Geo. 103; Farley v. Blood, 10 Foster (N.H.), 
 354. A bill of interpleader, strictly so called, is where the complainant 
 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 protected from the claims of both. 
 Bedell v. Hoffman, 2 Paige C. R. 199; Lincoln v. Rutland, &c. R. R. 
 Co. 24 Verm. 639. The right of interpleader is given now by statute, 
 in England and many of the United States, to defendants at law in most 
 
444 ADAMS'S DOCTRINE OF. EQUITY. 
 
 The principle on which the jurisdiction is based,— 
 that of protecting a mere stakeholder between conflict- 
 ing claimants, — was always recognized at common law, 
 and was applied where a chattel had come to a man's 
 possession by accident, or by bailment from both claim- 
 ants 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, debt, or duty was 
 L -■ the subject of both claims, (s) The equity ori- 
 ginates 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 equityj 
 as, for example, when the assignees 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 inter- 
 pleader, where both the claims are legal, is much dimi- 
 nished, 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- 
 
 (s) Mitf. 141; Crawshay v. Thornton, 2 M. & C. 1, 21. 
 (t) Lowndes v. Cornford, 18 Ves. 299. 
 
 cases. In Missouri such a bill may be maintained against non-residents 
 in certain cases. Freeland v. Wilson, 18 Mo. (3 Bennett), 380.] 
 
OF BILLS OF INTERPLEACEK. 445 
 
 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. (2f) 
 
 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 thing, debt, 
 or duty be claimed by both the parties against whom 
 relief 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- 
 tence, as in the original cases of interpleader at '- -■ 
 law, no difficulty can arise on the ground of identity ; 
 
 (m) 1 & 2 Wm. 4, c. 58. 
 
 (y) Langton v. Horton, 3 Bea. 464. 
 
 ' A bill of interpleader may be filed, although the cMim 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; [Hamilton v. Marks, 3 De G. & Sm. 638.] 
 
 And where a person is in danger of being doubly vexed by adverse 
 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; Kichards v. Salter, 6 Johns. C. E. 445. [But it seems 
 that where the double claim has been occasioned by the act of the stake- 
 holder, he has no right to file a bill of interpleader. Desbbrough v. 
 Harris, 4 De G. M. & G. 439.] 
 
 ' See City Bank.v. Bangs, 2 Paige C. E. 570 ; Hayes v. Johnson, 4 
 Ala. 267. 
 
446 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 successively, 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 purchasers ; 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, 
 therefore, 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 sued in trover by a 
 person who alleged himself to be the real owner, it was 
 held not to be a case of interpleader ; for the parties were 
 not seeking the same thing. The one was endeavoring 
 to obtain the price of the goods, the other damages for 
 their conversion, (lu) 
 
 2. The party seeking relief must have incurred no 
 independent liability to either claimant. 
 
 In the case, therefore, of a tenant sued by his land- 
 lord, or an agent by his principal, a claim adverse to the 
 landlord or principal will not warrant a bill of inter- 
 pleader, unless it originate in his own act, done after 
 the commencement of the tenancy or agency, and creat- 
 
 (w) Glyn V. Duesbury, 11 Sim. 139; Hoggart v. Cutts, Cr. & P. 197; 
 Slaney v. Sidney, 14 Mee. & W. 800 ; 15 Law J. Esch. 72. 
 
OF BILLS OF INTERPLEADER. 447 
 
 ing a doubt who is the true landlord 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 a title *in one of the claimants, f.^„„p., 
 and has thus incurred an independent liability to ■- J 
 him. If misrepresentation was used to obtain that ac- 
 knowledgment, it may create an equity to be released 
 from the liability ; but the right of the party deceived 
 to insist on such release is not matter of interpleader 
 between the real and apparent owners, (a;) 
 3. He must claim no interest.^ 
 
 (x) Crawshay v. Thornton, 2 M. & C. 1 ; Stuart v. Welch, 4 M. & C. 
 305 ; Jew v. Wood, Cr. & P. 185. 
 
 ' [Whitewater, &o. Co. v. Comegys, 2 Cart. Ind. 469 ; Crane v. Burn- 
 trager, 1 Cart. 165.] A strict bill of interpleader cannot be maintained 
 by a bailee or agent, to settle the conflicting claims of bailor or princi- 
 pal, and a stranger who claims the property by a distinct and indepen- 
 dent title. Neither can an attorney maintain such a bill to settle the 
 claim for money which he has collected for his client. Marvin v. El- 
 wood, 11 Paige C. 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 collection ; and this, although he may 
 be entitled to retain a part of it to compensate his services. Gibson v. 
 Goldthwaite, 7 Ala. 281. [So, an executor, standing between two claim- 
 ants, one of whom claims by title paramount to the testator's, and the 
 other as a legatee under the will, is not entitled to an interpleader ; his 
 duty being clearly to protect the legatees. Adams v. Dixon, 19 Greo. 
 513. He may, however, file a bill in the nature of an interpleader to 
 determine whether, under a proper construction of a will, slaves in his 
 possession are entitled to their freedom, making the legatees and next 
 of kin of the testator parties. Osborne v. Taylor, 12 Gratt. (Va.) 17.] 
 
 ' Anderson v. Wilkinson, 10 Sm. & Mar. 601. Yet it is no objection 
 to a bill of interpleader, that the complainant has an interest in respect 
 
448 Adams's doctrine of equity. 
 
 It has been held, thierefore, that if a deposit is made 
 by a purchaser at an auction, and the auctioneer is after- 
 wards 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.(?/) 
 
 If the circumstances be such as to sustain the juris- 
 diction, 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 5' and on payment into Court of the 
 amount due may obtain an injunction against any pro- 
 ceeding commenced or threatened at law or in equity. 
 The injunction may be obtained ex parte immediately 
 on the bill being filed, and 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 payment 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 
 
 (y) Mitchell V. Hayne, 2 S. & S. 63 ; Moore v. Usher, 7 Sim. 384; 
 Bignold V. Audland, 11 gim. 24. 
 
 («) Crawford v. Fisher, 10 Sim. 479 ; Moore v. Usher, 7 Sim. 383. 
 
 of other property not in the suit, but which might be litigated, that on6 
 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 question, not in the particular suit. Op- 
 penheim v. Leo Wolf, 3 Sandf. Ch. K. 571 ; see, also, Gibson v. Gold- 
 thwaite, 7 Ala. 281. 
 
 ' [The bill must in general be filed before or immediately after tk 
 commencement of the action, and not delayed till after verdict or judg- 
 ment. Union Bank v. Kerr, 2 Maryl. Ch. 460. But where the suit is 
 allowed to go to verdict for the purpose of ascertaining the amount, it is 
 no objection. Hamilton v. Marks, 5 De G. & Sm. 638.] 
 
OF BILLS OF INTERPLEADER. 449 
 
 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 defendant, he may move to 
 dissolve *the injunction, on notice to the plain- p^q^.^-, 
 tiff and his co-defendant ; and if such co-defen- •- ^ 
 dant has also answered, 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 litigation may con- 
 tinue between the co-defendants; and in that case it 
 may proceed without revivor, notwithstanding the plain- 
 tiff's death. ((^) 
 
 The only equity on which the jurisdiction of inter- 
 pleader rests, is the danger of injury to the plaintiff 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 aflBdavit that he does not collude 
 with either claimant ; and the want of that affidavit is 
 
 (a) Sieveking v. Behrens, 2 M. & C. 581 ; Pauli v. Von Melle, 8 
 Sim. 327 J Meux v. Bell, 6 Sim. 175. 
 
 (b) Masterman v. Lewin, 2 Ph. 182. 
 
 (c) Townley v. Deare, 3 Bea. 213, 216 ; Crawford v. Fisher, 1 Hare-, 
 436, 441. 
 
 (d) Mitf. 60. [See Lyne v. Pennell, 1 Sim. N. S. 113.] 
 
 ' Nash V. Smith, 6 Conn. R. 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. 
 
 29 
 
450 ADAMS'S DOCTRINE OF EQUITY. 
 
 a ground of demurrer, (e)' For the same reason he 
 should so conduct his proceedings as not to cause hard- 
 ship and expense to the litigant parties, beyond what 
 his own protection may require. (/) But he will be en- 
 titled to have his costs properly incurred out of the fund 
 in dispute, and the Court will adjudicate on their ulti- 
 mate payment, as between the co-defendants, (g^)^ 
 
 There is also another class of cases, somewhat similar 
 to those of interpleader, originating in the provisions of 
 53 Geo. 3, c. 169, by which the responsibility 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 
 I- -I 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 rata- 
 ble distribution thereof, annexing to the bill an aiEdavit 
 that there is no collusion, that all claimants are made 
 
 (e) Mitf. 49, 143 J 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. Solomans, 1 S. & 
 S. 462 ; Jones v. Gilham, Coop. 49 ; Fenn v. Edmonds, 5 Hare, 314, 
 
 1 Gibson v. Goldthwaite, 7 Ala. E. 281 ; Atkinson v. Manks, 1 Cowen's 
 K. 691 ; Shaw v. Coster, 8 Paige C. R. 339. See also Marvin v. El- 
 wood, 11 Paige C. K. 365. An objection to the form of the affidavit 
 should not be made at the time of the motion, but on demurrer. Hamil- 
 ton V. Marks, 5 De G. & Sm. 638. 
 
 " The stakeholder is entitled to costs out of the fund. Canfield v. 
 Morgan, 1 Hopkins R. 224; Aynierv. 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. Thomson v. Ebbets, 1 Hopkins R. 272; [Farley 
 V. Blood, 10 Foster, 354.] 
 
OF INJUNCTION AGAINST TORT. 451 
 
 parties, that the value does not exceed an amount spe- 
 cified 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. (A) 
 The injunction against an act commenced or threat- 
 ened, 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 committing a breach of 
 trust, a covenanter from infringing his covenant,^ or a 
 
 (h) 53 Geo. 3, c. 159; Walker v. Fletcher, 12 Sim. 420; 1 Ph. 115. 
 [See Act. Cong. 1851, Ch. xliii, § 4 ; 9 Stat, at L. 635.] 
 
 '■ [With regard to injunctions to restrain a breach of covenant, it may 
 not be out of place to state, that the rule frequently referred to, based 
 upon Kemble v. Kean, 6 Sim. 333, and Kimberley v. Jennings, Id. 
 340, that equity will not restrain by injunction in cases of contract, where 
 it cannot enforce specific performance, has been modified to a very con- 
 siderable degree in England, by the recent case of Lumley v. Wagner, 1 
 De G. Macn. & G. 604; aff'g S. C. 5 De G. & Sm. 485; see also Great 
 Northern R. E. Co. v. Manchester E. E. Co. 5 De G. & Smales, 138. 
 In the former case it was laid down, that where a contract contains cove- 
 nants to do certain acts, and also to abstain from doing certain acts, the 
 Court has jurisdiction to restrain the breach of the negative covenants, 
 though it has no power to compel specific performance of the affirmative 
 covenants ; as in the case of an agreement by a musician to sing at a 
 particular theatre, and not to sing at any other, in which case an injunc- 
 tion may be granted against the breach of the latter portion of the agree- 
 ment. (Kemble v. Kean, overruled.) But in such cases the Court will 
 decline to interfere when its jurisdiction cannot be beneficially exercised, 
 or where its exercise would work injustice, as where the consideration 
 for the negative covenant of the one party, is the affirmative covenant of 
 the other, which latter the Court cannot specifically enforce. Lumley v. 
 Wagner; Stocker v. Wedderburne, 26 L. J. Ch. 703. 
 
 In Hamblin v. Dinneford, 2 Edw. Ch. 529, however, the case of 
 Kemble v. Kean was followed, and the Court refused to enjoin an actor, 
 
452 ADAMS'S DOCTRINE OF EQUITY. 
 
 fraudulent holder of a negotiable security from indorsing 
 it to a stranger. But there is one class of cases in which 
 the necessity for injunctive relief constitutes j^er se an 
 independent equity ; viz., that of torts, as a class of civil 
 wrongs distinct from cases of trust, of contract, and of 
 fraud. 
 
 The principle of injunctive relief against a tort is, that 
 whenever damage is caused or threatened to property, 
 admitted or legally adjudged to be the plaintiff's, by an 
 act of the defendant, 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 equity for the plain- 
 tiff'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 com- 
 monly *enforced, are five in number; viz., waste, 
 L -I destructive trespass, nuisance, infringement of 
 patent right, and infringement of copyright. And, there- 
 fore, 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 
 
 who had contracted to perform at the complainant's theatre and no other, 
 from performing at another theatre in violation of his agreement. 
 
 An injunction may be granted against a distinct breach of corenant, 
 though no damage be shown, or even, indeed, if such be shown to be 
 positively harmless, or perhaps beneficial. Steward v. Winters, 4 Sandf. 
 Ch. 587 ; Dickenson v. Grand Junction Canal Co. 15 Beav. 260.] 
 
 ' [See in Pennsylvania, Denny v. Branson, 29 Penn. St. 382.] 
 
 » See Duvall v. Waters, 1 Bland, 576. 
 
OF IKJUNCTION AGAINST TORT. 453 
 
 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.' With respect, however, 
 
 • Everything is waste which occasions a permanent injury to the inhe- 
 ritance ; 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 re- 
 mainder, he is guilty of waste, and will be restrained from a continuance. 
 See Johnson v. Johnson, 2 Hill C. R. 277 ; Livingston v. Reynolds, 26 
 Wend. 115 ; Smith v. Poyas, 2 Desau. 65. Not so, if it does not pro- 
 duce 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. ]?isher, 7 Ala. 514. Firewood for the houses of the tenant 
 and servants may be taken. Gardiner v. Dering, 1 Paige, 573. [Cutting 
 timber is, in this country, a question of good husbandry, depending on 
 the circumstances of the neighborhood, and how far the timber is needed 
 for the immediate improvement of the land. McCuUough v. Irvine, 13 
 Penn. St. 438 ; Morehouse v. Cotheal, 2 Zabriskie, 521.] 
 
 Where a farm is occupied and used for mining purposes, any proper 
 use of it in mining operations is not waste. Capner v. Flemington Min- 
 ing Co. 2 Green Ch. 467 ; Eindlay v. Smith, 6 Munf. 134; Crouch v. 
 Puryear, 1 Rand. 258. [Working a gold mine so as to produce irrepa- 
 rable damage, may be restrained : McBrayer v. Hardin, 7 Ired. Eq. 1 ; 
 and so of opening a new mine of any kind : Owings v. Emery, 1 Gill, 
 260.] A tenant for life has no right to take clay or wood from the pre- 
 mises for the manufacture of bricks ; and such acts are waste. Living- 
 ston V. Reynolds, 2 Hill's R. 157. An injunction will issue to prevent 
 the commission of waste by one who has but a limited interest in, or 
 possession of the property, when the acts about to be done will work a 
 lasting injury to the inheritance. Jones v. Whitehead, 1 Parson's Sel. 
 Eq. Cas. 304. [See Denny v. Branson, 29 Penn. St. 382.] 
 
 An injunction will be granted to prevent the lessee from making ma- 
 terial alterations in a dwelling-house, by changing it into a vfarehouse, 
 or store, which would produce permanent injury to the building. Doug- 
 
454 ADAMS'S DOCTRINE OF EQUITT. 
 
 to waste of this latter kind, there is a special exception 
 in favor of a tenant who has put up ornamental fixtures 
 or erections for the purposes of his trade. (z")' 
 
 The essential character of waste is, that the party com- 
 mitting it is in rightful possession. And, therefore, 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 recovered in the now abo- 
 lished action of waste. There are, however, no means 
 at law of stopping the waste itself whilst the tenancy 
 continues ; and for that purpose, if the reversioner's title 
 be admitted or proved at law, the prohibitive jurisdiction 
 of equity has been always exercised.^ 
 
 (0 2 Steph. Bl. 261 ; 3 Id. 593 ; 1 Cruise, Tit. iii, c. 2. 
 
 lass V. Wiggins, 1 Johns. C. K. 435. [See McCuUough v. Irvine, 13 
 Penn. St. 438.] 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 v. Pitts, 3 Paige 
 C. R. 259. 
 
 [An injunction may be granted, not only against a tenant who cominits 
 waste, but also against one who colludes with him. Rodgers v. Kodgers, 
 11 Barb. S. C. 595; see Earl Talbot v. Scott, 27 L. J. Ch. 273. A 
 Court of equity, however, has no means of interfering in the case of 
 permissive waste by a tenant for life. Powys v. Blagrave, 1 Kay, 495.] 
 
 ^ [In a case of equitable waste, the Court may, in addition to injunc- 
 tion, direct an account, and satisfaction. Eodgers v. Rodgers, 11 Barb. 
 S. C. 595.] 
 
 ^ In order to the injunction, there must be no dispute as to the title. 
 In Nevitt V. Gillespie, 1 How. Miss. R. 108, it was held, that an injunc- 
 tion should never be granted to stay waste, where it appears that the de- 
 fendant to the bill is in possession, claiming and holding adversely. See 
 also Storm v. Mann, 4 Johns. C. R. 21 ; [and Davenport v. Davenport, 
 7 Hare, 217.] But pending an action to try the title to land, an injunc- 
 tion will sometimes be granted to restrain the defendant from waste, 
 
OF INJUNCTION AGAINST TORT. 455 
 
 In addition to waste, strictly so called, and cognizable 
 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 unimpeach- 
 able of waste at law, is committing waste mala fide, or 
 in a manner not contemplated by the donor. 
 
 Where an estate for life is comprised among the limi- 
 tations of a settlement it is not unusual to make it "un- 
 impeachable of waste," and the object of this is that the 
 
 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. E. 
 617 J Shubrick v. Guerard, 2 Desau. 616; Duvall v. Waters, 1 Bland. 
 569. For other instances of the granting of the writ pending a suit 
 at law, see Hawley v. Clowes, 2 Johns. C. K. 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; Poindexter v. Hender- 
 son, Walker K. 176. Yet in some cases it may be granted, notwithstand- 
 ing 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 irre- 
 parable, or not capable of compensation by damages in a suit at law. 
 Atkins V. Chilson, 7 Met. 398 ; Poindexter v. Henderson, supra ; 
 Spooner v. McConnell, 1 McLean's R. 338 ; [Works v. Junct. R. R. 5 
 McLean, 425.] 
 
 The Court will not, unless under very special circumstances, grant an 
 injunction to prevent the removal of timber already cut, but only to pre- 
 vent /uiMj-e waste. Watson V. Hunter, 5 John. C. R. 169. Yet a threat 
 to commit waste is suflScient. Loudon v. Warfield, 5 J. J. Marsh. 196; 
 Livingston v. Reynolds, 26 Wend. 115, 128. 
 
 The appropriate remedy for a mortgagee against a mortgagor in pos- 
 session, 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. Clagett, 3 Bland. 125 ; Capner 
 V. Flemington Mining Co. 2 Green C. R. 467. See on the general sub- 
 ject, Sarles v. Sarles, 3 Sandf. C. R. 601 ; Brashear v. Macey, 3 J. J. 
 Marsh. 93; [Herr v. Bierbower, 3 Maryl. Ch. 456; Carlisle v. Stephen- 
 son, Id. 499; Burden v. Stein, 27 Alab. 104.] 
 
456 ADAMS'S DOCTRINE OF EQUITY. 
 
 owner may be enabled to cut timber, open mines, and 
 avail himself of other modes of profit which are derived 
 out *of the corpus of the estate, and not from the 
 L *" -I annual produce, and are therefore, in law, con- 
 sidered waste. So long as he is bona fide acting on this 
 authority, and endeavoring to make a profit by its exer- 
 cise, the Court of Chancery cannot interfere with his dis- 
 cretion. If, however, he is not acting hona fide, but is 
 maliciously attempting to destroy the property, his con- 
 duct is a fraud on the power, and will be restrained by 
 injunction. (7i;) The same restriction will be imposed if 
 he is attempting to cut down timber which was planted 
 for ornament, or which is 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 de- 
 struction of the estate, done by a stranger, whose posses- 
 sion 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 clausurn /regit, to recover satis- 
 faction in damages for the wrong. 
 
 The equitable jurisdiction over this class of injuries, 
 where the damage is by a mere wrong-doer without 
 color 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 pro- 
 ceeded to get more coal out of the adjoining parcel, 
 
 Qc) Vane v. Barnard, 2 Vern. 738. 
 
 (0 Marquis of Downshire y. Sandys, 6 Ves. 107; Day v. Merry, 16 
 Ves. 375 ; Wellesley v. Wellesley, 6 Sim. 497 ; Brydges v. Stephens, 
 6 Mad. 279 ; Leeds v. Amherst, 2 Ph. 117 ; [Clement v. Wheeler, 3 
 Foster, 361.J 
 
OF INJUNCTION AGAINST TORT. 457 
 
 which belonged to a diflferent person. 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 after- 
 wards 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, destroying or materially 
 altering the estate ; as, for example, if a man be •- -^ 
 pulling down his neighbor's house, felling his timber, 
 working his quarries, or the like.' If it be a mere ouster 
 
 ' There must be something particular in the case, so as to bring the 
 injunction under the head of quieting possession, or preventing irre- 
 parable injury. Livingston v. Livingston, 6 Johns. C. R. 497. [The 
 facts which show the irreparable nature of the injury must be set out in 
 the bill, a mere general averment is not enough. Chesapeake & Ohio 
 Co. V. Young, 3 Maryl. 480.] The injury threatened or begun must not 
 be susceptible of compensation in damages at law. Smith v. Pettingill, 
 15 Verm. 82 ; Stevens v. Beekman, 1 Johns. C. R. 318 ; Hart v. The 
 Mayor of Albany, 9 Wend. 571 ; Jerome v. Eoss, 7 Johns. 0. R. 315; 
 Scudder v. The Trenton Delaware Falls Co. Saxton, 694 ; [Bethune v. 
 Wilkins, 8 Geo. 118 ; George's Creek Coal Co. v. Detmold, 1 Maryl. 
 Ch. 871 ; Catching v. Terrell, 10 Geo. 576 ; Justices of Pike Co. V. 
 Griffin & West Point Plank R. Co. 11 Geo. 246 ; Shipley v. Ritter, 7 
 Maryl. 408 ; Mulvany v. Kennedy, 26 Penn. St. 44 ; Cherry v. Stem, 
 11 Maryl. 1 ; Earl Talbot v. Scott, 27 L. J. Ch. 273. That the tres- 
 passer is insolvent is not by itself suflScient. Turnpike, &c. v. Barnett, 
 2 Carter, 536. See, however, Hawley v. Clowes, 2 John. Ch. 122 ; 
 Hart V. Mayor of Albany, 3 Paige, 214 ; Winnipiseogee Lake Co. v. 
 Worster, 9 Foster, 449 ; James v. Dixon, 20 Mo. 79.] 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 Gill & J. 468. 
 
 Equity will not restrain, by injunction, the working of a mine, or 
 
458 ADAMS'S DOCTRINE OF EQUITY. 
 
 or temporary trespass, the recovery of the land by an 
 action of ejectment, or of pecuniary damages by an 
 action of trespass, are sufficient remedies, and an in- 
 junction will not lie. (to) ^ 
 
 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 obstruct- 
 ing a highway or public river, or the carrying on of of- 
 fensive or dangerous trades, or the neglecting to do any- 
 thing which the common good requires, e. g., the omission 
 to repair a highway or public bridge. A private nuisance 
 is an act done unaccompanied by an act of trespass, which 
 causes a substantial prejudice of the hereditaments, cor- 
 poreal 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 disturbing a fran- 
 chise, 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 
 
 (m) Thomas v. Oakley, 18 Ves. 184 ; Goulson v. White, 3 Atk. 21; 
 Ridgway v. Roberts, 4 Hare, 106, 116. 
 
 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. 
 
 [So on a question between two bodies, each claiming to be the trus- 
 tees of a religious society, and a refusal by one to permit the other to 
 use the burying ground, a forcible entry by the latter for that purpose 
 on several occasions, was held not to be ground for injunction. Miller 
 V. English, 2 Hast. Ch. 304.] 
 
 1 [See a full discussion of this subject in Earl Talbot v. Scott, 27 L. 
 J. Ch. 273.] 
 
OF IKJUNCTION AGAINST TORT. 459 
 
 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 
 offensive or dangerous trade is carried on so near his 
 premises as to do them special prejudice. (n) 
 
 The remedy at law for nuisance is by indictment in 
 respect of public nuisances, and by action in respect 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 unnecessary damage. (o) r^oiin 
 The remedies, however, at law can at the utmost 
 only abate, or afford compensation for, an existing nui- 
 sance, but are ineffectual to restrain or prevent such as 
 are threatened or in progress ; and for this reason there 
 is a jurisdiction in equity to enjoin, if the fact of nuisance 
 be admitted or established at law, whenever the nature 
 of the injury is such that it cannot be adequately com- 
 pensated by damages, or will occasion a constantly recur- 
 ring grievance, (p)' 
 
 (n) 2 Steph. Bl. 10-16 ; 3 Id. 499-502 ; 4 Id. 295. 
 
 (o) 3 Steph. Bl. 361, 503. 
 
 Ip) Mitf. 144 ; Attorney-General v. Nichol, 16 Ves. 388 ; Attorney- 
 General V. Cleaver, 18 Ves. 211 ; Attorney-Greneral v. Forbes, 2 M. & 
 C. 123 ; Crowder v. Tinkler, 19 Ves. 617 ; Earl of Ripon v. Hobart, 
 B M. & K. 169 ; Hudson v. Maddison, 12 Sim. 416 ; Blakemore v. 
 Glamorgan Canal, 1 M. & K. 154, 181. 
 
 ' The right of the complainant ought generally to be admitted or esta- 
 blished 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 j Hart v. Mayor of Albany, 3 Paige, 213 ; Reid v. Gif- 
 ford, 6 Johns. C. R. 19 ; Biddle v. Ash, 2 Ashmead, 211 ; Porter v. 
 
460 ADAMS'S DOCTRINE OF EQUITY. 
 
 Injunctions for the restraint of trespass and nuisance 
 are often issued against railway companies, and other 
 
 Witham, 17 Maine, 292 ; [Arnold v. Klepper, 24 Mo. 273.] Yet lie 
 will not be first required to establish his right at law, unless it is doubt- 
 ful and in dispute. White v. Forbes, Walk. C. K. 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 ; Robeson v. Pittenger, 1 Green Ch. 
 57. [The fact that the complainant has not established his title at law 
 is no ground for demurrer to the bill. Soltau v. De Held, 2 Sim. N. 
 S. 133 It is sufficient if damages have been once recovered at law, no 
 matter to how small an extent, if the legal title has been clearly esta- 
 blished. Rochdale Canal Co. v. King, 2 Sim. N. S. 78. The Court, 
 however, is not always bound by the mere -fact that damages, even if 
 substantial, have been recovered, and the legal title is established. It 
 will consider whether the complainant be entitled to the equitable relief; 
 and moreover will not grant it where an injunction could not restore the 
 party to his former position. Thus an injunction will be refused against 
 a manufacturer for polluting the water of a stream by dye stuffs, &c., in 
 favor of another manufacturer, when the real damage to the stream and 
 to its use by the latter, is produced by causes over which the Court has 
 no control, as by the growth of population on the banks of the stream, so 
 that the granting the injunction would not be of real benefit; though 
 the complainant has recovered damages at law. Wood v. Sutcliffe, 2 
 Sim. N. S. 163.] 
 
 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 injunction 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. Dtica 
 and Schenectady Railroad 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 considered sufficient 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 ot 
 
or INJUNCTION AGAINST TORT. 461 
 
 bodies of a similar nature, where the act complained of 
 is done in alleged pursuance of a Parliamentary power. 
 
 that for which an action at law would furnish full indemnity. Wing- 
 field V. Crenshaw, 4 Hen. & Munf 474 ; City of Rochester v. Curtiss, 
 1 Clarke's R. 336 ; Bradsher v. Lea, 3 Ired. Eq. 301 ; Spooner v. 
 MoConnell, 1 McLean, 337 ; Webb v. Portland Manufac. Co. 3 Sum- 
 ner, 189 ; Croton Turnpike v. Ryder, 1 Johns. 0. R. 611 ; Wall v. 
 Cloud, 3 Humph. 181 ; Vaugbn v. Law, 1 Humph. 123 ; Bemis v. Up- 
 ham, 13 Pick. 169 ; Vanwinkle v. Curtis, 2 Green Ch. 422 ; [Smith v. 
 Cummings, 2 Pars. Eq. 92 ; Wallace v. MoVey, 6 Ind. 540 ; Clark v. 
 White, 2 Swan, 540.] 
 
 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 as to this point, Rosser v. Randolph, 7 
 Porter, 238 ; Mayor of Greorgetown v. Alexandria Canal Co. 12 Peters, 
 91; Bigelow v. Hartford Bridge Co. 14 Conn. 565; Attorney-Gteneral 
 V. Utica Ins. Co. 2 Johns. C. R. 379, 380 ; Delaware and Maryland R. 
 R. Co. V. Stump, 8 Gill & J. 479; Biddle v. Ash, 2 Ashmead, 211 ; 
 Rowe V. Granite Bridge Co. 21 Pick. 344 ; [Soltau v. De Held, 2 Sim. 
 N.-S. 133 ; Smith v. Lockwood, 13 Barb. S. 0. 209 ; Peck v. Elder, 3 
 Sandf. S. C. 126 ; Prink v. Lawrence, 20 Conn. 117 ; Att.-Gen. v. 
 Sheffield Gas Consumers Co. 3 De G. M. & G. 304 ; Smith v. Bangs, 
 15111. 399; Hamilton v. Whetridge, 11 Maryl. 128.] 
 
 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 neces- 
 sary that a trade or business complained of, should endanger the health 
 of the neighborhood. It is sufficient if it produces that which is ofiFen- 
 sive to the senses, and which renders the enjoyment of life and property 
 uncomfortable. [See also Peck v. Elder, 3 Sandf. S. C. 126 ; Howard 
 V. Lee, Id. 281 ; Sniith v. Cummings, 2 Pars. Eq. 92. The rule on this 
 subject was laid down with great clearness in Walker v. Selfe, 15 Jur. 
 416, by Knight Bruce, V. Ch. 
 
 See also generally as to injunction to restrain nuisance, Soltau v. De 
 Held, 2 Sim. N. S. 133 ; Bostock v. North Stafford R. R. Co. 5 De G. 
 & Sm. 584 ; Auburn Co. v. Douglass, 12 Barb. 553 ; Harrell v. Ells- 
 worth, 17 Alab. 576 ; Gilbert v. Miekle, 4 Sandf. Ch. 357 ; Wood v. 
 Sutcliffe, 2 Sim. N. S. 163, where the doctrines of the Court of Chan- 
 cery on the subject are fully 'discussed, and some important points de- 
 termined. 
 
 A State may obtain an injunction in tbe Supreme Court of the United 
 
462 Adams's doctrine of equity. 
 
 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 hona fide, 
 there is jurisdiction to enjoin; as, for example, if, having 
 authority to take land for a particular purpose, they pre- 
 tend to take it for that purpose, but want it for an- 
 other, (g') And if they are acting beyond their autho- 
 rity, there is the same jurisdiction as in ordinary cases ; 
 as, for example, if having authority to do a certain 
 thing, upon certain terms, and in a certain 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, neverthe- 
 less, to take the land. And perhaps the same result 
 would follow, if they were to make an important altera- 
 tion in the termini of their line, or if the sum which 
 r*9i 9T **'^®y ^^^ power to raise were palpably insuffi- 
 L -■ cient to complete their works ; for, in both these 
 
 {q) Webb y. Manchester and Leeds Kailway, 4 M. & C. 116 ; [see 
 Coram. V. Pittsburg & Conn. E. R. 24 Penn. St. 139.] 
 
 States, to restrain a company, incorporated by another State, from bridg- 
 ing a navigable river within the limits of the latter State, which runs 
 through the former, so as to obstruct the navigation. Pennsylvania v. 
 Wheeling Bridge Co. 13 How. U. S. 518. 
 
 A corporation owning a toll bridge may maintain a bill in equity as 
 for a nuisance, to restrain a city from unlaTyfully laying it out as a high- 
 way. Central Bridge v. Lowell, 4 Gray (Mass.), 474. See also Green 
 V. Oakes, 17 111. 249 j Walker v. Shepardson, 2 Wis. 384.] 
 
OF INJUNCTION AGAINST TORT. 463 
 
 cases, they would not be using their powers for the pur- 
 pose for which they were conferred, (r) 
 
 The same principles are equally applicable to all other 
 persons who have been authorized by the Legislature to 
 do specified acts, wbich without such authority they 
 would be incompetent to do. So long as they are act- 
 ing 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 con- 
 cerned, they have no authority ; 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. (<)i 
 
 (r) Agar v. Kegent's Canal Company, Coop. 77 ; Salmon v. Eandall, 
 3 M. & C. 439; Blakemore v. Glamorgan Canal, 1 M. & K. 154; Lee 
 V. Milner, 2 Y. & C. 611. 
 
 (s) Attorney-General v. Forkes, 2 M. & C. 123 ; Frevin v. Lewis, 4 
 M. & C. 249 ; Birley v. Chorlton, 8 Bea. 499 ; Dawson v. Paver, 5 Hare, 
 415 ; [Winch v. Birkenhead, &c. R. E. Co. 16 Jur. 1035 ; Beman v. 
 Kufford, 1 Sim. N. S. 550.] 
 
 (0 2 Steph. Bl. 86; 5 Jarm. Byth. tit. "Patent." Godson on Pa- 
 tent and Copyright, bk. ii. 
 
 ^ [The American cases and statutes on this subject will be found col- 
 lected in Curtis on Patents. 
 
 A patent, of itself, and in the absence of treaty stipulation, creates 
 no exclusive right in a foreign country ; yet it has been recently held 
 that an English patent would be enforced by injunction against a 
 foreigner bringing a patented article into England, to the same extent 
 as against English subjects. Caldwell v. Van Vlissengen, 16 Jur. 115; 
 9 Hare, 429. This was the case of a Dutch steam vessel, using an 
 English patented screw propeller without license, coming into England. 
 
464 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 Hmited, are regu- 
 lated by statute ; ( w) and the qualities essential to sus- 
 tain 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 inefficacy 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 cha- 
 racter of the patent as private *property, and 
 L -I not in the mere exclusive privilege. And there- 
 fore, a patent to keep a theatre, which is a mere privi- 
 lege granted to the party, will give no right to enjoin 
 other parties, who are infringing the law by keeping 
 theatres without license. (??) 
 
 The validity of the patent itself, and the fact of in- 
 fringement, are matters which, if doubtful, must be de- 
 termined 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.(t«)' 
 
 (u) 21 Ja. 1, c. 3, s. 1 ; 5 & 6 Wm. 4, c. 83 ; 2 & 3 Vict. c. 67. 
 (v) Calcraft v. West, 2 Jones & Lat. 128. 
 
 (lo) 2 Steph. Bl. 94 ; 5 Jarm. Byth. tit. Copyright. Godson on 
 Patent and Copyright, bk. iii. 
 
 The same point arose in Brown v. Duchosne, 2 Curtis C. C. 371, af- 
 firmed 19 Howard, 183, and received a contrary decision under the Pa- 
 tent Laws of the United States.] 
 ' [See Curtis on Copyright.] 
 
or INJUNCTION AGAINST TORT. 465 
 
 The property of an author in his work before publica- 
 tion is absolute and perpetual ;(a!;)^ nor is it lost by send- 
 ing the manuscript as a letter to a correspondent ; (?/) nor 
 by reading it orally as a public lecture. But where the 
 lecture has not been first committed to writing, it has 
 been doubted whether there can be property in the sen- 
 timents and language; although a pupil may be re- 
 strained, on the basis of an implied contract, from pub- 
 lishing it for profit, (z) 
 
 Lectures are now protected by 5 & 6 Wm. 4, c. 65, giv- 
 ing to the author and his alienee the sole right of first 
 printing and publishing, and, after publication, the or- 
 dinary term of copyright. But this statute gives no ex- 
 clusive right of oral delivery ; it requires that notice of 
 the intended lectures shall have been given to two jus- 
 tices before delivery ; it does not extend to lectures de- 
 livered in a university, public school, or college, or 
 under any gift, endowment, or foundation ; and it contains 
 a saving of the common law in respect to all lectures 
 which it does not include. 
 
 (x) Millar v. Taylor, 4 Burr. 2303 ; Donaldson v. Beckett, 2 B. P. 
 C. 129 ; Tonson v. Walker, 8 Sw. 672, 680. 
 
 0) Gee V. Pritchard, 2 Sw. 402 ; Palin v. Gathercole, 1 Coll. 565. 
 [See Woolsey v. Judd, 4 Duer, 379 ; Wetmore v. Scovill, 3 Edw. Ch. 
 515. Hoyt V. Mackenzie, 3 Barb. Cli. 320 ; Bartlett v. Crittenden, 5 
 McLean, 32.] 
 
 (z) Abernethy v. Hutchinson, 3 Law J. 0. S. Ch. 209 ; Miller v. 
 Taylor, 4 Burr. 2303; Donaldson v. Beckett, 2 B. P. C. 129. 
 
 ' [This subject will be found very fully considered in the case of Prince 
 Albert V. Strange, 2 De G-. Sm. 652 ; aff'd 1 Macn. & G-. 25. There 
 a workman, who had been intrusted with some etchings on copper, for 
 the purpose of working off the engravings, which were not intended for 
 publication, was restrained from publishing a descriptive catalogue of the 
 etchings, and compelled to destroy certain impressions which he had 
 taken for himself] 
 
 30 
 
466 ADAMS'S DOCTRINE OF EQUITY. 
 
 r*914.1 *The property of an author in his work after 
 publication is also regulated by statute; (a) and 
 of late years the rights of authors have been considerably 
 amended, improved, and extended. (&) Protection is not 
 only afforded to printed books, but also to engravings, (c) 
 sculptures, (cZ) dramatic compositions, (e) and registered 
 designs, (/) and also, under certain limitations, to works 
 published abroad. (^) 
 
 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 extend to the grantees of 
 the Crown, viz., to the Queen's printer, and to the Univer- 
 sities of Oxford and Cambridge. A similar privilege of 
 printing almanacs was formerly claimed, but was ad- 
 judged to be void. The Universities of Oxford and Cam- 
 bridge, and the Colleges of Eton, Westminster, and Win- 
 chester, also enjoy, by Act of Parliament, a perpetual 
 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) 
 
 The question as to what will constitute an infringe- 
 ment of copyright is sometimes attended with considera- 
 ble doubt. It is declared by the late statute that it is 
 equally piracy, either to print the copyright work within 
 
 (a) 54 Geo. 3, e. 156. (i) 5 & 6 Vict. c. 45. 
 
 (c) 8 Geo. 2, c. 13 ; 7 Geo. 3, c. 38, 57 ; 6 & 7 Wm. 4, c. 59. 
 
 (d) 38 Geo. 8, c. 71 ; 54 Geo. 3, c. 56. 
 
 (e) 3 & 4 Wm. 4, c. 15 ; 5 & 6 Viet. c. 45. 
 (/) 5 & 6 Vict. c. 100 ; 6 & 7 Vict. c. 65. 
 ((/) 7 & 8 Vict. 0. 12. 
 
 (h) 2 Steph. Bl. p. 98. 
 
OF IKJUNCTION AGAINST TORT. 467 
 
 the British dominions for sale or exportation, or to im- 
 port 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 im- 
 ported, or to cause any such Sprinting, importa- r^ni ni 
 tion, sale, publication, or exposure for sale or 
 hire.(t)^ But in the case of partial imitation or copying, 
 and of piracy from compilations of pre-existing matter, 
 it is sometimes difficult to determine whether the latter 
 work is, or is not, a copy of its predecessor. The doc- 
 trine on these points appears to be : 1. That in regard 
 to original works, it is no piracy to extract passages for 
 the purpose of bona fide criticism or quotation, or for 
 that of combining them with new matter so as to con- 
 stitute a new original work, or even to make a fair 
 abridgment of the work itself. But it is otherwise if the 
 criticism, &c., be merely colorable. (Ic) 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 arrangement. 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 first, 
 and may perhaps be identical with it. But he must 
 create the work by his own labor and skill, and must 
 not copy the result of his predecessor's. And if, on com- 
 
 (0 5 & 6 Tict. c. 45, ss. 15 and 17. 
 
 [h) Campbell v. Scott, 11 Sim. 31 ; Bell v. Whitehead, 8 L. J. Ch. 
 141 ; Wilkins v. Aikin, 17 Ves. 427 ; Saunders v. Smith, 3 M. & C. 
 711; Bramwell v. Halcomb, 3 M. & C. 737; D'Almaine v. Boosey, 1 
 Y. & C. 288. 
 
 ^ [After much discussion in England,, it has been recently held in the 
 House of Lords, that a foreigner, not residing there, can have no copy- 
 right under the statutes, nor does his English assignee before publication 
 stand in any better position. JeflFeryes v. Purday, L. J. Exch. 350.] 
 
 \ \\ 
 
468 ADAMS'S DOCTRINE OF EQUITY. 
 
 parison of the two works, he appears to have done so, 
 his own work will be declared a piracy. (Z)^ 
 
 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 neces- 
 sarily 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 value. (?i) He may 
 
 L J also sue in equity for an injunction and account, 
 
 (I) Longman v^ Winchester, 16 Ves. 269 ; Lewis v. Eullarton, 2 Bea. 6. 
 (to) Power v.* Walker, 3 M. & S. 7 ; Rundell v. Murray, Jac. 311, 
 315 ; 5 & 6 Vict. c. 45, s. 13. 
 (m) 5 & 6 Viet. c. 45, s. 23. 
 
 ^ [A work in part a bona fide abridgment of another, and in part mere 
 compilation without original labor, may be restrained as to the latter. 
 Story's Ex'rs v. Holcombe, 4 McLean, 3()6. A translation is not a vio- 
 lation of a copyright. Stowe v. Thomas, 2 Am. Law Keg. 210; 2 
 Wall, Jr. 547.] 
 
 ' [But property in a work, is distinct from property in the means of 
 its reproduction. Thus a sale on execution of the engraved plate of a 
 map, does not pass the copyright in the map, and the purchaser may be 
 restrained by injunction from the multiplication of copies thereof. Ste- 
 phens V. Cady, 14 How. U. S. 528.] 
 
 ^ [Where an author is employed by the proprietor of a periodical, to 
 write for it articles for a certain compensation, but without any mention 
 of the copyright, it is to be inferred that the copyright was to belong to 
 such proprietor. Sweet v. Benuing, 16 Comm. Bench, 459. 
 
 So it was held to be piracy, for a proprietor of an analytical digest of 
 equity, common law, and other cases, to copy verbatim the head notes 
 of cases from reports, the copyright of which was in the plaintiffs, with- 
 out their consent. lb.] 
 
OF INJUNCTION AGAINST TORT. 469 
 
 if the right and infringement are admitted or established 
 at law. It will be observed, that the jurisdiction to en- 
 join in equity is expressly for the protection of copyright 
 as property, and not for the prevention of improper pub- 
 lications. 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 immorality, 
 libel, or fraud, it is not acknowledged as property at 
 law ; and in that case, or even if it be of a doubtful ten- 
 dency, 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 jurisdiction, of a 
 not very dissimilar character, to enjoin against the use 
 of a secret of trade which has 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 enjoy- 
 ment of it within the statutory period, he has no exclu- 
 sive 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 discovered by legiti- 
 mate means; and therefore if the party acquiring it has 
 
 (o) Gee V. Pritchard, 2 Sw. 402 ; Du Bost v. Beresford, 2 Camp. N. 
 P. 0. 511 ; Wright V. Tallis, 1 Mann. Gr. & Sc. 893 ; 4 Law J. C. 
 P. 283; Southey v. Sherwood, 2 Meriv. 438 ; Lawrence v. Smith, Jac. 
 471. 
 
470 ADAMS'S DOCTRINE OF EQUITY. 
 
 resorted to a breach of trust or a fraud, he will be re- 
 strained from availing himself of what he has learnt, (p) 
 *If, again, a person has adopted a particular 
 "- J device, with a view to denoting a particular arti- 
 cle or manufacture as his own, he does not 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 misstatement 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')^ 
 
 (p) Williams v. Williams, 3 Meriv. 157 ; Youatt v. Winyard, IJ. & 
 W. 394 ; [Morison v. Moat, 9 Hare, 266 ; aff'd, 16 Jur. 321 ; 21 L. 
 J. Ch. 248.] 
 
 (q) Sykes v. Sykes, 3 B. & C. 541 ; Blofeld v. Payne, 4 B. & Ad. 
 410 ; Cmtwell v. Lye, 17 Ves. 336 ; Motley v. Downman, 3 M. & C. 
 1 ; Millington v. Fox, 3 M. & C, 338; Perry v. Truefitt, 6 Bea. 66; 
 Groft V. Day, 7 Bea. 84 ; Spottiswoode v. Clark, 2 Ph. 154 ; Clark v. 
 Freeman, 17 Law J. Ch. 142 ; 11 Beav. 112. 
 
 ^ [On the subject of injunction to restrain the use of trade-marks the 
 following recent decisions may be referred to : Coffeen v. Brunton, 4 
 McLean, 516 ; Rodgers v. Nowill, 3 De G. M. & Gord. 614 ; 17 Jur. 
 109; Burgess V. Burgess, 8 De G. M. & Gord. 896; 17 Jur. 292; 
 Flavell V. Harrison, 10 Hare, 467 ; 17 Jur. 368 ; Edleston v. Tick, 18 
 Jur. 7 ; Holloway v. Holloway, 13 Beav. 209 ; Taylor v. Taylor, 2 Eq. 
 Kep. 290 ; 23 L. J. Ch. 255 ; Howard v. Henriques, 3 Sandf S. C. 
 725, in which the name of a hotel was treated in the same light as a 
 trade-mark. See also Coffeen v. Brunto, 5 McLean, 256 ; Ames v. 
 King, 2 Gray (Mass.) 879 ; Samuel v. Berger, 24 Barb. (N. Y.) 163. 
 No property can be acquired in marks or devices which indicate merely 
 the nature, kind, or quality of articles, and not the goods, or property, or 
 particular place of business. Stokes v. Landgraff, 17 Barb. (N. Y.) 608.] 
 
OF IKJTJNCTION AGAINST TORT. 471 
 
 Having now examined the chief objects of the injunc- 
 tive equity, we must, in conchision, notice the chief in- 
 cidents of the equity itself These incidents are three 
 in number. The equity attaches only on an admitted 
 or legally adjudged right in the plaintiff, 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 ad- 
 judged right in the plaintiff, admitted or legally adjudged 
 to be infringed by the defendant. The existence of the 
 right, and the fact of its infringement, must be tried, if 
 disputed, in a Court of law. And therefore, if the plain- 
 tiff resorts to equity in the first instance, he should forth- 
 with move for an interlocutory injunction to protect his 
 alleged right until decree, and thus give an opportunity 
 of directing 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 injunction 
 is made, the Court, having regard to the extent of prima 
 fade title shown, the probability *of mischief to 
 the property, and the balance of inconvenience L J 
 on either side, will either grant the injunction, accom- 
 panied 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 continuance, 
 
 (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. 382, 
 4 M. & C, 433; Collard v. Allison, 4 M. & C. 487; Hilton v. Granville, 
 Cr. & P. 283; Harman v. Jones, Cr. & P. 299; Stevens v. Keating, 2 
 Ph. 333. 
 
472 Adams's doctrine of equity. 
 
 as well as commission. Where an interlocutory injunc- 
 tion 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 in- 
 junction, *'. e., an injunction so framed that it restrains 
 the defendant from permitting his previous act to ope- 
 rate, 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 gar- 
 den ; and against permitting a railway tunnel to con- 
 tinue, which had the effect of completely destroying the 
 road, (s) ^ 
 
 Thirdly, the equity extends to an account of the de- 
 fendant's profits. The grant of an injunction necessarily 
 presupposes that the plaintiff has sustained a loss by the 
 defendant's act, and that the defendant has probably 
 derived a profit, which may or may not, according to cir- 
 cumstances, be coextensive with the plaintiff's loss. 
 The strict right of the plaintiff, so far as the past wrong 
 
 (s) Kobinson v. Byron, 1 B. C. C. 588; Lane v. Newdigate, 10 Ves. 
 194; Blakemore v. Glamorgan Canal, 1 M. & K. 154, 183; Eankin v. 
 Huskisson, 4 Sim. 13 ; Spencer v. Birmingham Railway, 8 Sim. 193, 
 198, 1 Railway Ca. 159 ; Attorney-General v. Manchester and Leeds 
 Railway, 1 Railw. Ca. 436; Hooper v. Brodrick, 11 Sim. 48; Earl of 
 Mexborough v. Bower, 7 Bea. 127, 133; Great North of England Junc- 
 tion Railway v. Clarence Railway, 1 Coll. 507. 
 
 ' [But such an injunction is not granted, except in rare and pecuhar 
 cases. Bradbury v. Manchester, &c. R. R. Co. 5 Be G. & Sm. 624; 
 Washington University v. Green, 1 Maryl. Ch. 97. On final hearing, 
 however, the decree may, of course, require the abatement of a nuisance. 
 Lamborn v. The Covington Co. 2 Md. Ch. 409.] 
 
OF INJUNCTION AGAINST TORT. 473 
 
 is concerned, is to *a recompense in damages for 
 
 his own loss, irrespectively of the defendant's '- -' 
 
 profit. 
 
 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 jurisdiction for 
 the purpose of the injunction, will prevent that circuity 
 and expense ; and although it cannot decree damages 
 for the plaintiff'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 plaintiff must resort to a Court of law.(M) 
 
 (i) Crossley v. Derby Gas Company, 3 M. & C. 428 ; Bacon v. Spot- 
 tiswoode, 1 Bea. 382, 385; Colburn v. Simms, 2 Hare, 548,. 560. 
 (tt) Baily v. Taylor, 1 E. & M. 73. 
 
[*220] *BOOK III. 
 
 OF THE JURISDICTION OP THE COURTS OP EQUITY, IN CASES 
 IN WHICH THE COURTS OP ORDINARY JURISDICTION CAN- 
 NOT ADMINISTER A RIGHT. 
 
 CHAPTER I. 
 
 OF ACCOUNT, 
 
 The equities under the second head of our division, 
 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 testamen- 
 tary assets, for adjusting liabilities 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 juris- 
 diction in most, if not in all cases, with Courts of law : see Mitchell v. 
 Manufacturing Co. 2 Story, 648 ; Post v. Kimberley, 9 John. E. 470 ; 
 Jones V. Bullock, 2 Dev. Ch. 3G8 ; Nelson v. Harris, 1 Yerg. 360; 
 Bruce v. Burdet, 1 J. J. Marsh. 80 ; [Wilson v. Mallett, 4 SanHf. S. 
 0. 112;] in all cases in which an action of account would be a proper 
 remedy at law : Fowle v. Lawrason, 5 Peters, 495 ; and in some cases 
 in which assumpsit, or other action at law, would lie : Hickman v. 
 Stout, 2 Leigh, 6; Hay v, Marshall, 3 Humph. 623. Especially 
 
OF ACCOUNT. 475 
 
 One important instance of the jurisdiction over ac- 
 counts occurs in the case of trustee and cestid 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 corresponding one exists as against 
 an agent or steward, or a person employed in any simi- 
 lar character, who is bound by his oiEce to render regular 
 accounts. If this duty is performed, and the accounts 
 are regularly rendered, his employer can recover the 
 balance at law on the evidence of the accounts them- 
 
 (a) Supra, Trusts. 
 
 where equity has acquired cognizance of a suit for the purpose of dis- 
 covery. 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 : see Pleasants v. Glasscock, 
 1 Sm. & 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, acci- 
 dent, or mistake is connected with the subject. McLaren v. Steapp, 1 
 Kelly, 376; Cummins v. White, 4 Blackf 356. And between partners 
 and the assignees of their copartners. Pendleton v. Wambersie, 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 required, 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 sub- 
 ject, Randolph v. Kinney, 3 Rand. 394 ; Shipp v. Jameson, 6 Litt. 
 190 ; Sturtevant v. Goode, 5 Leigh, 83 ; McKim v. Odom, 3 Fairfield, 
 94; Key bold V. Dodd, 1 Earring. 402; Dunwidie v. Kerley, 6 J. J. 
 Marsh. 501. [It seems that mere delay of a defendant at law coming 
 into equity in matters of account, forms no reason for refusing relief 
 where the nature of the account is such that a Court of law cannot deal 
 with it. Southeast E. R. Co. v. Brogden, 3 Macn. & G. 8. See the 
 remarks in this case as to the difference between the cases where equity 
 assumes original jurisdiction in a matter of account, and those where it 
 withdraws a matter of account from a Court of law.] 
 
476 ADAMS'S DOCTRINE OP EQUITY. 
 
 selves, and a suit *in equity is not required. If 
 '■ -• it is neglected, he can recover damages at law for 
 the neglect, (6) 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 originate in the mere want of 
 discovery, which will not, as we have already seen, con- 
 fer a jurisdiction for relief ;(c?) but in the additional in- 
 gredient that such want has been caused by the defen- 
 dant's fault. It is otherwise in the case of a mere 
 stranger. He is compellable to answer on oath to the 
 best of his information, 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 sub- 
 ject to a special exception in favor of a steward, the 
 nature of whose employment is such, that money is often 
 paid in confidence without vouchers, embracing a variety 
 of accounts with the tenants, so that it would be impos- 
 sible to do him justice without an account in equity.(e)' 
 
 (6) Smith Merc. Law, 96. 
 
 (c) Mackenzie v. Jolinston, 4 Mad. 373 ; Massey v. Banner, 4 Mad. 
 413 ; Anon. 2 Hare, 289, n. ; Bowles v. Orr, 1 Y. & C. 464. 
 
 (d) Supra, Discovery. 
 
 (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 ac- 
 count. Ludlow V. Simond, 2 C. C. E. 1, 39, 53 ; Kerr v. Steamboat 
 Co. 1 Cheves, 2d part, 189 ; [see Wilson v. Mallett, 4 Sandf. S. C. 
 
OF ACCOUNT. 477 
 
 In taking the account against an agent, he will be 
 charged with the moneys of his principal which he has 
 
 112. But, in general, a bill will not lie by a factor against his princi- 
 pal, for discovery and account, merely in aid of a suit at law ; nor will a 
 bill for relief, where the bill is dependent on the right to discovery. Wil- 
 son V. Mallett, 4 Sandf. S. C. 112. See Dunning v. Stearns, 9 Barb. 
 S. C. 903. 
 
 In the recent case of Pennell v. Deffell, 18 Jurist, 273, the following 
 rules were established as governing the practice of the Court of Chancery 
 in the analogous case of trusts. Where a trustee pays trust money into 
 a bank to his credit, the account being a simple account with himself, 
 not marked or distinguished in any other manner, the debt thus consti- 
 tuted from the bank to him, belongs, so long as it remains due, specifi- 
 cally to the trust, as between the cestui que trust on the one side, and the 
 trustee or his representatives on the other ; and this state of things is not 
 varied by the circumstance of the bank holding also for the trustee, or 
 owing to him money in every sense his own. And where the account 
 consists of a series of items in respect of moneys paid in, and drawn out 
 by general checks by the trustee, the mode of ascertaining what part of 
 the balance is trust property, and what part the trustee's own money, is 
 to hold (as in Clayton's case, 1 Mer. 572), that each check drawn out by 
 the trustee is to be applied in payment of the earlier items of the oppo- 
 site side of the account, i. e., in diminution of the trust fund pro tanto, 
 if those items arise from trust moneys paid into the account, or of the 
 customer's own moneys pro tanto, if they arise from moneys paid in on 
 his own private personal account.] 
 
 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 J Hale v. Hale, 4 Humph. 183 ; Halstead v. Rabb, 8 Porter, 
 63; Mason v. Man, 3 Desau. 116. If an agent does not, within a rea- 
 sonable time, apply money to the purposes for which it is sent to him, he 
 will be chargeable with interest. Harrisson v. Long, 4 Desau. 110. 
 [See on the subject of interest, Hill on Trustees, 2d Am. Ed. 530, 535, 
 and notes.] But an agent having no authority to invest, is not liable for 
 interest, until a demand made by his principal. Eowland 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 Brock. R. 103 ; see, also, Prentice v. Buxton, 3 
 
478 ADAMS'S DOCTRINE OF EQUITY. 
 
 actually received, and, if a special case of negligence'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 default will not be 
 granted against a trustee or agent, although it is other- 
 wise in the case of a mortgagee. (/) But if the agent 
 neglect to account, he will be charged with interest on 
 moneys improperly *retained ; if he has unduly 
 L -J used his principal'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 pro- 
 perty has become mixed up with that of his principal, so 
 that they cannot readily be distinguished, the burden of 
 separation 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.(gr) 
 
 Another instance of the jurisdiction is in the case of 
 mutual accounts, where items exist on both sides, not 
 constituting mere matters of set-oflf, but forming a con- 
 nected transaction, and requiring an account to ascertain 
 the balance, more complicated than can practically be 
 taken at law.(^) The mere fact that such comphcated 
 mutual accounts exist is a sufficient equity to sustain a 
 
 (/) Pelham v. Hilder, 1 N. C. C. 3. 
 
 (ff) Pearse v. Green, IJ. & W. 135 ; Lupton v. White, 15 Ves. 432, 
 441. 
 
 (7t) Kennington v. Houghton, 2 N. G. C. 620 ; Ranger v. Great 
 Western Railway,. 1 Railway Ca. 1; Taff Vale Company v. Nixon, 1 
 House of Lords' Reports, 111. 
 
 B. Monr. 35. If an agent mixes the property of his principal with his 
 own, he will be obliged to show clearly which part of the property be- 
 longs to himself; and so far as he is unable to do this, it is treated 
 as the property of his principal. Kelley v. Greenleaf, 3 Story, 105, 
 106. 
 
i 
 
 OF ACCOUNT. 479 
 
 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 between 
 two persons, each of whom, under an independent con- 
 tract, owes an ascertained amount to the other, to set off 
 their respective debts by way of mutuaP deduction, so 
 that in any action brought for the larger debt, the resi- 
 
 ' In matters of account which are mutual and complicated, Courts of 
 equity have complete jurisdiction. Hay v. Marshall, 3 Humph. 623 ; 
 The Governor v. MoEwen, 5 Humph. 241 ; Power v. Reeder, 9 Dana, 
 9; Hickman v. Stout, 2 Leigh, 6; Long v. Majestre, 1 John. C. R. 
 305 ; Hunter's Ex'rs v. Spotswood, 1 Wash. R. 146 ; Cummins v. 
 White, 4 Blackf. 856; Dubourg de St. Colombe's Heirs v. The United 
 States, 7 Peters, 625 ; Kirkman v. Vanlier, 7 Ala. 217. But to sus- 
 tain a bill for an account, there must be mutual demands, not merely 
 payments byway of set-off; there must be a series of transactions on one 
 side, and of payments on the other. [See Bowen v. Johnson, 12 Geo. 
 9;] Porter v. Spencer, 2 John. C. R. 169 ; Pearl v. Nashville, 10 Yer- 
 ger, 179 ; McLin v. McNamara, 2 Dev. & Bat. Eq. 83 ; [Wilson v. 
 Mallett, 4 Sandf C. 112; Pointup v. Mitchell, 17 Geo. 558.;] Phillips 
 V. Phillips, 9 Hare, 471 ; Cullum v. Bloodgood, 15 Alab. 34 ; Padwick 
 v. Hurst, 18 Jurist, 763. Complication of accounts, where the receipts 
 are all on one side, if it ever alone constitutes suflBcient ground for inter- 
 vention of a Court of equity, must show a very strong case of entangle- 
 ment. Padwick v. Stanley, 9 Hare, 627. 
 
 Upon demurrer, a general allegation that accounts are of a compli- 
 cated nature is not sufficient, unless supported by specific allegation of 
 facts showing their complex character. Padwick v. Hurst, 18 Jurist, 
 763; 23 L. J. Ch. 657. 
 
 A bill will not lie, even against an agent, as to a single transaction 
 not tainted by fraud, and where there is a legal remedy. Navulshaw v. 
 Brownrigg, 1 Sim. N. S. 573 ; 2 De G. Macn. & G. 441. 
 
 '' [The consideration that the nominal parties to a contract are not 
 strictly mutual, is no objection to set-off, if the real parties, on whom 
 the burden is ultimately to fall, are the same. Smith v. Wainwright, 
 24 Vermt. 97.] 
 
480 ADAMS S DOCTRINE OF EQUITY. * 
 
 due 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 de- 
 fendant, he would nevertheless recover in his action, and 
 the defendant would be driven to a cross action for his- 
 own claim. To obviate this inconvenience it was en- 
 acted " that where there are mutual debts between the 
 plaintiff and defendant, or (if either party sue or be 
 sued as executor or administrator), where there are mu- 
 tual debts between the testator or intestate and either 
 party, one may be set against the other." (*") And 
 L ' -• *in the event of bankruptcy a still wider remedy 
 is given, and the right of set-off is extended to cases 
 where mutual credit has been given by the bankrupt 
 and any other person, although, strictly speaking, there 
 may not be actual debts on both sides, (k) 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 
 resorting to the Chancery. If one or both be mat- 
 ter 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 . (Z) ^ There are also some 
 cases occasionally spoken of as depending on an equita- 
 ble set-off, but which would be more correctly termed 
 
 (0 2 Geo. 2, c. 22 ; 8 Geo. 2, c. 24. 
 
 (/<;) 6 Geo. 4, o. 1'6, s. 50 ; Smith's Merc. Law, 608 ; Gibson v. Bell, 
 1 B. N. C. 748. 
 
 (l) Vulliamy v. Noble, 3 Meriv. 593, 618 ; Eawson v. Samuel, Cr. & 
 P. 161 J Dodd V. Lydall, 1 Hare, 833. 
 
 ^ [The equitable right of set-off was said, in Freeman v. Lomas, 9 
 Hare, 116, not to be derived from or dependent upon any statutory right, 
 but founded on the Koman Law. See Meriwether v. Bird, 9 Geo. 594.] 
 
OF ACCOUNT. 481 
 
 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 exe- 
 cutor 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 ba- 
 lance. 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 money, although *it ordinarily occurs in that 
 form. But it is applicable to any dealings which >- J 
 have been treated as equivalent to receipts and pay- 
 ments. 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 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 
 
 (m) Cherry v. Boultbee, 4 M. & C. 442 ; Courtney v. Williams, 3 
 Hare, 539 ; Jones v. Mossop, 3 Hare, 568 ; McMahon v. Burchell, 2 
 Ph. 127; [see Keim v. Muhlenbergh, 7 Watts, 79.] 
 
 31 
 
482 Adams's doctrine of equity. 
 
 time to time, so that a balance only of the price is ulti- 
 mately due. {ny 
 
 The remedy at law on a mutual account is in ordinary 
 cases by assumpsit for the balance, and, in the case of 
 account between merchants, by the action 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 exigencies of 
 the case. In this action the investigation of items is 
 not intrusted 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 arrear. The tribunal, 
 however, to which the account is subjected, though 
 superior to a jury, is attended with much delay and ex- 
 pense. The auditors have no power of deciding on con- 
 troverted items, so as to carry on a continuous inquiry, 
 but must from time to time, as any question occurs, in- 
 terrupt their proceedings by referring it to the Court 
 
 (n) Wellings v. Cooper, cited 6 Ves. 139, arid9 Ves. 473; O'Connor 
 V. Spaight, 1 Sch. & L. 305; Cottam v. Partridge, 4 Man. & Gr. 271; 
 Ranger v. Great Western Eailway, 1 Railw. 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, that is 
 not such matter of account as will sustain a bill to recover the balance. 
 Smith V. Marks, 2 Rand. 449 ; City [Council v. Page, Speer'? Ch. B. 
 159 ; sed vide Sturtevant v. Goode, 5 Leigh, 83. 
 
OF ACCOUNT. 483 
 
 or to a jury, as a distinct issue of *law or fact, r-^c)r,r-\ 
 and must resume them again when a decision has '- -^ 
 been obtained. And even in respect to items not con- 
 troverted they had not, until 3 & 4 Anne, c. 16, any 
 general power to give effect to their inquiry by adminis- 
 tering 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 procedure to ope- 
 rate 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 applicable 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 execu- 
 tors; and the statute of 31 Edw. 3, st. 1, c. 11, to ad- 
 ministrators. But it was not until the statute of 3 & 4 
 Anne, c. 16, that it lay against executors and adminis- 
 trators of guardians, 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 discovery 
 elicited from the defendant's answer. The account is 
 then referred to a Master, who is armed with power not 
 only to examine witnesses, but also to examine the par- 
 Co) 1 Selw. N. P. 1 ; 1 Story on Equity, s. 446-449. 
 
484 ADAMS'S DOCTEINE OF EQUITY. 
 
 ties themselves, and to compel production of books and 
 documents. It is not liable to interruption by contro- 
 versies on particular items, but is carried on continuously 
 to its close. The Master reports the final result to the 
 Court. The report may be '"excepted to on any 
 '-"'-' points which are 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, hav- 
 ing all their interests before it, may so modify a single' 
 decree, as efiectually to embrace and arrange them all. 
 
 If the account is one which might be readily investi- 
 gated by a jury, the necessity for equitable interference 
 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 law, a mere indefinite 
 allegation that the accounts are intricate will not prevent 
 a demurrer. (2:))^ 
 
 The same result will follow if the parties themselves 
 have disposed of the matter and have struck a balance 
 of their account, for there is then no difficulty in pro- 
 ceeding at law. 
 
 (p) Foley V. Hill, 1 Ph. 399; Darthez v. Clemens, 6 Bea. 165; 
 [Padwiok v. Hurst, 18 Jurist, 763 ; see ante, note, p. 222.] 
 
 * Courts of equity will not entertain jurisdiction when there is no diffi- 
 culty in the remedy at law. Monk v. Harper, 3 Ed. C. K. 109 ; Turn- 
 pike Co. V. Allen, 2 Dev. & Batt. Eq. 115; Butler v. Ardis, 2 McCord 
 C. R. 60, 71. 
 
OF ACCOUNT. 485 
 
 If, therefore, there has been an account stated between 
 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 re- 
 lief. And in this latter case, if the allegation in the 
 answer be not proved, it is usual on referring the account 
 to the Master, to direct that, if he find any account 
 stated, he shall not disturb it. [qY The account, how- 
 ever, may be opened on the ground of fraud, or if im- 
 portant errors are specified and proved ; but a general 
 allegation that it is erroneous will not sufiice.(r) In 
 some cases, where a *stated account is impeached, 
 the Court will re-open the whole and direct it to L -^ 
 be taken de novo. In others, when it is faulty in a less 
 degree, it will allow it to stand, with liberty to surcharge 
 and falsify. This leaves it in full force as a stated ac- 
 count, except so far as it can be impugned by the oppos- 
 ing party. If he shows the omission of a credit, that is 
 a surcharge ; if he shows the insertion of an improper 
 charge, that is a falsification, (s) The question of what 
 will constitute a stated account is in some measure de- 
 pendent on the circumstances of the case. The mere 
 delivery of an account, without evidence of contempo- 
 raneous or subsequent conduct, will not prove it to be a 
 stated account; but an acceptance, implied from circum- 
 stances, will suffice. Between merchants at home an 
 account which has been presented, and which has not 
 
 (j) Seton on Decrees, 47; Connop v. Hayward, 1 N. C. C. 35. 
 
 (r) Taylor v. Haylin, 2 B. C. 0. 310 ; Johnson v. Curtis, 3 B, C. C. 
 266; Mr. Belt's notes; [Coleman v. Mellersh, 2 Macn. & Gord. 309.] 
 
 (s) Pit V. Gholmondeley, 2 Ves. 565 ; Seton on Decrees, 48 ; Millar 
 V. Craig, 6 Bea. 433. 
 
 ' An account stated may be set up by way of plea, as a bar to all dis- 
 covery and relief. Weed v. Smull, 7 Paige, 573 ; Bullock v. Boyd, 2 
 Ed. C. K. 293 ; Deil's Ex'rs v. Rogers, 4 Desau. 175. 
 
486 ADAMS'S DOCTRINE OP EQUITY. 
 
 been objected to after the lapse of several posts, is treated 
 under ordinary circumstances as a stated account. Be- 
 tween merchants in different countries a similar rule 
 prevails ; 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 con- 
 sider it as allowed. (<)^ 
 
 (0 Irvine v. Young, 1 S. & S. 333; 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 founda- 
 tion has been laid in the answer ; but only for fraud or errors specifiedj 
 and which are palpable or clearly proved. Slee v. Bloom, 20 Johns. E. 
 669 ; S. C. 5 Johns. Cr. E.. 366 ; Lee's Admr. v. Eeed, 4 Dana, 112; 
 Botifeut V. Weyman et al. 1 McCord's C. R. 156 ; Barrow v. Ehine- 
 lander, 1 Johns. C. R. 550; Johnson's Ex'rs v. Ketchum, 3 Green Ch. 
 364; [Bloodgood v. Zeily, 2 C. C. E. 124; Gray v. Washington, Cooke, 
 321 ; Roberts v. Tottan, 18 Ark. 609 ; Lockwood v. Thorne, 1 Kern. 
 (N. Y.) 170.] And although in England the Court has gone the length 
 of holding, that where an account has been surcharged or falsified in one 
 or more items, the complainants may then have liberty before a master 
 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 supplied. Consequa v. Fanning, 3 
 Johns. C. R. 587; Troup v. Haight, Hopk. 239; Chappedelaine v. 
 Dechenaux, 4 Cranch, 306; Redman 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, 3 Har. & J. 43 ; Preeland 
 V. Cocke, 3 Munf. 352; Compton v. Greer, 2 Dev. Ch. 93; Miller v. 
 Womack's Adm'rs, Freeman's Miss. Ch. 486; [Lilly v. Kroesen, 3 
 Maryl. Ch. 83 ; Williams v. Savage Manufaet. Co. 1 Maryl. Ch. 306. 
 Where an account stated is opened a long time, as sixteen years, after it 
 has been rendered, it will not be opened generally. It will be opened 
 as to fraud or mistakes charged in the bill, and so far proved that the 
 Court is satisfied that they ought to be corrected ; and when some such 
 
or ACCOUNT. 487 
 
 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 equit- 
 able title of like nature with a legal one, that limit of 
 time will be adopted in equity which is prescribed by 
 the Statute of Limitations at law. When the bar of 
 the statute is inapplicable, there may nevertheless be a 
 
 errors are proved, then as to other errors charged, which the Court is 
 satisfied ought to be made the subjects of further examination. In re- 
 stating a stated account between partners, thus opened, which has been 
 made up of separate adventures and transactions, undertaken under an 
 agreement for the mutual rendering of annual accounts of the whole 
 business, the decree directed the account to be restated in the form of a 
 general account of the whole business. Ogden v. Astor, 4 Sandf S. C. 
 311.] 
 
 A suit to impeach an account ought to be brought within a reasonable 
 time, of, at farthest, within the statutory period for commencing an ac- 
 tion at law upon matters of account. Lupton v. Janney, 13 Peters, 381. 
 And where the bar of the statute is inapplicable, as e. g., where the de- 
 mand is purely equitable, the Court is loath to interfere after a consider- 
 able lapse of time ; particularly after the death of parties whose transac- 
 tions are involved in the inquiry. Baker v. Biddle, Baldwin C. C. K. 
 418; Ellison V. Moffat, 1 John. C. R. 46; Eay v. Bogart, 2 Johns. Cas. 
 432; Raynerv. Pearsall, 3 Johns. C. R. 578, 586; Mooers v. White, 
 6 Johns. C. R. 360, 370; Boiling v. Boiling, 5 Munf. 834; Randolph 
 V. Randolph, 2 Call, 537 ; Dexter v. Arnold, 2 Sumner, 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. 
 318, 332 ; Ex'rs of Radcliffe v. Wightman, Ibid. 408 ; [Hutchins v. 
 Hope, 7 Gill, 119; Chesson v. Chesson, 8 Ired. Eq. 141.] 
 
 Where there has been fraud, however, the Court will open and ex- 
 amine accounts after any length of time, even though the person who 
 committed the fraud be dead. Botifeur v. Weyman, 1 McCord C. R. 
 156. [But it must be shown that the fraud was not, and could not with 
 reasonable diligence be discovered, until within six years before the com- 
 mencement of suit. Ogden v. Astor, 4 Sandf. S. C. 311. And so of 
 fraud apparent on the face of the account, or which could be discovered 
 with slight examination. Ibid.] 
 
488 ADAMS'S DOCTRINE OP EQUITY. 
 
 bar in equity, originating in long acquiescence by the 
 party, and in the consequent presumption that he has 
 either been satisfied *his demand, or that he in- 
 L -I tended to relinquish it. (it) And in a case where 
 the account was carried back into remote transactions, 
 of which accounts 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.(v)' 
 
 (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. 
 
 (v) Chalmer v. Bradley, IJ. & W. 51-65. 
 
 ' As to when an account ought to he claimed, and what constitutes a 
 stated account, see Langdon v. Roane's Adm'r, 6 Ala. 518 ; Murray v. 
 Toland, 3 John. C. R. 575 ; Burden v. McElmoyle, 1 Bailey Eq.375; 
 Sherwood v. Sutton, 5 Mason, 143 ; Freeland v. Heron et al. 7 Cranch, 
 147 ; Philips v. Belden, 2 Ed. C. R. 1. [It is generally held now that 
 an account rendered, not objected to in a reasonable time, becomes an 
 account stated. Thompson v. Fisher, 13 Penn. St. 313 ; Porter v. 
 Patterson, 15 Id. 236 ; Beers v. Reynolds, 12 Barb. 288 ; Dews v. 
 Durfee, 10 Id. 213 ; Coopwood v. Bolton, 26 Mississ. 212; Brown v. 
 Van Dyke, 4 Halst. Ch. 795. In Ogden v. Astor, 4 Sandf. S. C. 311, it 
 was held that an account by a surviving partner, rendered to the repre- 
 sentatives of his deceased copartner, one of whom was a female unac- 
 quainted with accounts, and the other a nephew of the accountant who 
 had entire confidence in him, which account was without vouchers, and 
 showed the results merely, and not the details of various transactions 
 and adventures, would become a stated account after long acquiescence 
 without objection on these grounds, no fraud or collusion being charged. 
 But it is otherwise where the party receiving the account is so deficient 
 in mental capacity, as to be unable to give it proper examination. 
 Williams v. Savage Manufact. Co. 1 Maryl. Ch. 306. See Rembert v. 
 Brown, 17 Ala. 667. 
 
 Where, in restating an account after a great lapse of time, there is to 
 be a correction of errors charged in respect of which the account would 
 
OF PARTITION. 489 
 
 *CHAPTER II. [*229] 
 
 OF PARTITION — OF ASSIGNMENT OF DOWER — 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)i It is most fre- 
 
 (a) Pulteney v. Warren, 6 Ves. 73, 89. 
 
 not have been opened, if they had stood alone, it will be ordered that 
 the books, papers, and vouchers in possession of the accounting party 
 shall be taken as prima facie correct and genuine, without further proof 
 than his oath, or that of his clerk or agent having their management 
 and custody, that they are the original entries, papers, and vouchers. 
 Ogden V. Astor, 4 Sandf. S. C. 311.] 
 
 ' In Pennsylvania, the action of Partition at law has been rendered 
 as speedy and eflScient as the proceeding by bill in equity. New parties 
 maybe added; amendments maybe made at almost any stage of the pro- 
 ceeding ; the property may be divided into fewer parts than there are 
 parties ; or a sum of money may be allotted by way qf 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 esse, 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. & Kawle, 467. [In most of the other States, 
 partition is regulated by statutory provisions.] 
 
490 Adams's doctrine of equity. 
 
 quently applied in eflfecting 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 an equity for ascertainment of boundary 
 between the estates of independent proprietors, where 
 the confusion 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 partition, 
 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 a,s 
 of common right. It did not originally lie in favor 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, (ft) The partition of copy- 
 r*2"ni ^^^^^ *was effected by a plaint in the lord's Court 
 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 partition 
 originated a concurrent jurisdiction in equity, the exer- 
 cise of which may be demanded as matter of right, not- 
 withstanding the difficulties by which a division may he 
 embarrassed, or the mischief which it may entail on the 
 property. ((i)^ The jurisdiction was originally confined 
 
 (5) 31 Hen. 8, c. 1 j 32 lb. c. 32. 
 
 (c) 8 & 4 Wni. 4, c. 27, s. 36. 
 
 (d) Agar v. Fairfax, 17 Ves. 533 ; Warner v. Baynes, Amb. 589 ; 
 Turner v. Morgan, 8 Ves. 143. 
 
 ^ Partition between tenants in common of real property is a matter of 
 
OF PARTITION. 491 
 
 to land of freehold tenure, but has been extended to 
 copyholds by statute, (e) 
 
 (e) Horncastle v. Charlesworth, 11 Sim. 315;.Jope v. Morshead, 6 
 Bea. 213 ; 4 & 5 Vict. o. 35, s. 85. 
 
 right in equity where both the parties cannot, or either of them will not, 
 consent to hold and use such property in common. [See Wright v. 
 Marsh, 2 Grreene (Iowa), 94 ; Howey v. Groings, 13 Illin. 95 ; Donnell 
 V. Mateer, 7 Ired. Eq. 94 ; Holmes v. Holmes, 2 Jones Eq. 334. In 
 Georgia, it appears that a bill for equitable partition will only lie, where 
 there is some difficulty or obstruction in the way, so that the remedy at 
 law is inadequate and imperfect, as where a discovery and account of 
 rents and profits is necessary. Boggs v. Chambers, 9 Geo. 1 ; Kuther- 
 ford V. Jones, 14 Geo. 521.] But 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 Rand. 598 ; 
 Straughan v. "Wright, 4 lb. 493 ; Smith v. Smith, 10 Paige, 470 ; 
 Steedman v. Weeks, 2 Strob. Eq. E. 141 ; Pell v. Ball, 1 Rich. Eq. R. 
 361 ; Collins v. Dickinson, 1 Hay. 240 ; Davis v. Davis, 2 Ired. Ch. R. 
 607; Wilkin v. Wilkin, 1 John. C. R. Ill ; Manners v. Manners, 1 Green 
 Ch. 384 ; Wisely v. Findlay, 3 Rand. 361 ; Stuart v. Coalter, 4 Rand. 
 74; Garrett v. White, 3 Ired. Ch. R. 131; Bruton v. Rutland, 3 
 Humph. 435 ; Hosford v. Merwin, 5 Barb. S. C. R. 51 ; Burhans v. 
 Burhans, 2 Barb. Ch. R. 398 ; Trayner v. Brooks, 4 Hey. 295 ; [Max- 
 well V. Maxwell, 8 Ired. Eq. 25 ; Foust v. Moorman, 2 Carter, 17 ; 
 Boone v. Boone, 3 Maryl. Ch. 497 ; Whillock v. Hale, 10 Humph. 64; 
 Corbett v.' Corbett, 1 Jones Eq. 114. The bill must in general allege 
 seisin in both complainant and respondent. Maxwell v. Maxwell, 8 
 Ired. Eq. 25 ; Adams v. Ames Iron Co. 24 Conn. 230 ; though see 
 Howey v. Goings, 13 Illin. 95. But actual possession on the part of 
 the complainant is not necessary ; it is sufficient if there be not a legal 
 disseisin. Foust v. Moorman, 2 Carter, 17. Though in general a parti- 
 tion will not be decreed where the title is disputed, this applies only to 
 the legal title. In cases of equitable estates, or defences, Chancery has 
 of necessity jurisdiction over the whole matter. Donnell v. Mateer, 7 
 Ired. Eq. 94 ; Foust v. Moorman, 2 Carter, 17. Where the defendant, 
 in an action of partition at law, has an equitable defence, he may go into 
 equity and obtain an injunction to stay proceedings at law, till the 
 matter is settled in equity, or if the suit be already in equity, the re- 
 
492 Adams's doctrine of equity. 
 
 The principal inconvenieuces 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 bound ; that the 
 judgment was for partition according 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 conveyances, but by the sheriff's actual divi- 
 sion and the subsequent judgment of the Court, was 
 often incapable of being conveniently modelled. In the 
 
 spondent must set up his defence by a cross bill ; though his omission 
 to do so, will not prevent his filing a separate bill for relief. Donnell v. 
 Mateer, ut supr. On this principle, that equity does not determine 
 upon conflicting legal titles in partition, a decree therein is not conclu- 
 sive evidence in ejectment. Whillock v. Hale, 10 Humph. 64.] 
 
 Partition can be had of a mere equitable estate : Hitchcock v. Skin- 
 ner, 1 Hoff. C. R. 21 ; [or of an incorporeal hereditament. Bailey v. 
 Sisson, 1 Rhode Isl. 233.] 
 
 If land sought to be parted is subject to a mortgage, the equity of re- 
 demption only can be divided. Wotten v. Copeland, 7 John. C. E. 
 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. Matthew v. Matthews, 1 Ed. C. E. 565. Yet seS Graydon 
 V. Gruydon, 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. MoClintic v. Manns, i 
 Munf. 828. [See as to dower, post, 233. In New York, a doweress 
 cannot be sole pjaintiff or defendant. Wood v. Clute, 1 Sandf. Ch. 199. 
 A tenant by the curtesy initiate may be a party to a bill for partition : 
 Eiker v. Darke, 4 Edw. Ch. 668; as may tenants by curtesy consum- 
 mate. See 1 Eoper, Husband and Wife, 36.] But not a railroad cor- 
 poration, which has laid out its road over lands held by tenants in com- 
 mon. Weston v. Foster, 7 Mete. 297. 
 
OF PARTITION. 493 
 
 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 partition be desired, all parties inte- 
 rested may be brought before the Court, and all estates, 
 whether in possession or expectancy, including those of 
 infants and of persons not in esse, may be bound by the 
 decree. (5') The defendant's titles need not be proved 
 by the plaintiff, but *may be ascertained by a re- r*9q-|-| 
 ference to the Master ; (7;) and the partition itself, 
 being effectuated 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 di- 
 vision of the estate ; but if the estate is not susceptible 
 of an exact division, an allotment may be made in un- 
 equal shares, with compensation for the inequality by 
 creation of a rent or charge. A partition, however, 
 must be bona fide made, and the pecuniary charge con- 
 fined to corrections of inequality. 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, how- 
 ever inconvenient such division may be.(i)' 
 
 (/) Baring v. Nash, 1 Ves. & B. 551. 
 
 ig) Brook v. Lord Hertford, 2 P. Wms. 518 ; Gaskell v. Gaskell, 6 
 Sim, 643; Wills v. Slade, 6 Ves. 498 ; Seton on Decrees, 275. 
 
 (A) Jopev. Morshead, 6 Bea. 213; Agar v. Fairfax, 17 Ves. 533, 
 542. 
 
 (0 Clarrendon v. Hornby, 1 P. Wms. 446 ; Turner v. Morgan, 8 
 Ves. 143; Story v. Johnson, 2 Y. & C. 586, 611; Hornoastle v. 
 Charlesworth, 11 Sim. 315; Mole v. Mansfield, 15 Sim. 41 ; Vin. Ab. 
 Partition, Z. pi. 2. 
 
 ' In case the estate cannot be exactly divided, the Court will decree a 
 
494 Adams's doctrine of equity. 
 
 The mode in which a partition is effected in equity is 
 that after the interests of all parties have been ascer- 
 tained, either by evidence in the cause, or by the Mas- 
 ter's report, a commission is issued to persons nominated 
 by the 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 ex- 
 plained. After making it, they allot to the several par- 
 ties 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 ac- 
 commodate him.(^) 
 
 (k) Story V. Jolinson, 1 Y. & C. 538 ; 2 Y. & C. 586. 
 
 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. 11. 228 ; Warfield v. Warfield, 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 pre- 
 mises in a suit for partition. See Pell v. Ball, 1 Rich. C. K. 361; 
 Thompson V. Hardman, 6 John. C. R. 436; Steedman v. Weeks, 2 
 Strob. Eq. 145; Dunham v. Minard, 4 Paige, 441; Reynolds v. Eey- 
 nolds, 5 Ibid. 161; Calwell v. Boyer, 8 Gill & J. 136; Matter of 
 Skinner, 2 Dev. & Batt. Eq. 63; Smith v. Brittain, 3 Ired. C. E. 347; 
 [Royston v. Royston, 13 Geo. 425.] But see, on the other hand, De- 
 loney 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 in- 
 vested 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, 7 Paige, 483. 
 
OP PARTITION. 495 
 
 The re,turn of the commissioners, when made, is con- 
 firmed by the Court.' The confirmation, however, does 
 not, like the judgment on a writ of partition, operate 
 on the actual ownership of the land, so as to divest the 
 parties of their undivided shares, and reinvest them 
 with corresponding *estates in their respective 
 allotments, but it requires to be perfected by mu- L -I 
 tual 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 meantime 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 di- 
 vided shares, which they before had in the undivided 
 share. (Z) If the infancy of the parties or other circum- 
 stances prevent the immediate execution of conveyances, 
 the decree can only extend to make partition, give pos- 
 session, and order enjoyment accordingly until effectual 
 conveyances can be made. If the defect arises from in- 
 
 (J) Horncastle v. Gharlesworth, 11 Sim. 315, 317; Story v. Johnson, 
 2 Y. & C. 586. 
 
 * [The report of the commissioners is regarded in the same light as a 
 verdict at law, and will only be set aside for such cause as would induce 
 a Court to grant a new trial. Livingston v. Clarkson, 4 Edw. Ch. 596 ; 
 see Wilhelm v. Wilhelm, 4 Maryl. Ch 330.] 
 
 ' [The effect of a decree of partition is no more than that of an ordi- 
 nary oonveyanceat law, and does not create of itself an adverse possession. 
 Anderson v. Hughes, 5 Strobh. Law, 74. 
 
 In Maryland, the decree does not direct the execution of conveyances, 
 but that the parties hold in severalty, which is of equivalent effect. 
 Young V. Frost, 1 Maryl. Kep. 377.] 
 
496 Adams's doctrine of equity. 
 
 fancy, 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 ex- 
 clusive 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 occu- 
 pation rent ; for the effect of such a rule would be that 
 one tenant in common, by keeping out of the actual 
 occupation of the premises, might convert the other into 
 his bailiff, and prevent him from occupying them, ex- 
 cept upon the terms of paying rent.(n) The period over 
 which the account will extend was originally unlimited 
 in the case of 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 
 L -^ all cases to six years.(o)^ 
 
 (iri) Brook v. Lord Hertford, 2 P. Wms. 518 ; Seton on Decrees, 275. 
 
 (n) Lorimer v. Lorimer, 5 Mad. 363 ; McMahon v. Burchell, 2 Ph. 
 127 ; Henderson v. Eason, 2 Ph. 308. 
 
 (o) Prince v. Heylin, 1 Atk. 493 ; 4 Ann. c. 16, s. 27 ; 3 & 4 Wm. 
 4, c. 27. 
 
 ' Where some of the owners are infants, the return of the commis- 
 sioners 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, 886, 405. 
 
 [But in New York, where all the parties are infants, proceedings in 
 partition are invalid. G-allatian v. Cunningham, 8 Cow. 361. Nor can 
 an infant maintain a bill alone. Postley v. Kain, 4 Sandf. Oh. 508 ; 
 see Johnson v. Noble, 24 Mo. 252.] 
 
 ' A tenant in common in sole possession, is chargeable, upon parti- 
 
OF PARTITION. 497 
 
 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 sever- 
 ance, and if it were governed during its continuance by 
 the ordinary rule of law, exempting 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 enter- 
 tain the application of a majority in value or interest, 
 for Hberty to employ the ship in a particular adventure, 
 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 ex- 
 
 tion, with an occupation rent. Ilitchcock v. Skinner, 1 HofiF. C. R. 21 ; 
 Backler V. Farrow, 2 Hill C. R. 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 improvements made by himself or his 
 ancestors. Respass v. Breckenridge, 2 A. K. Marsh. 581 ; Louvalle v. 
 Menard, 1 Gilman, 39 ; Conklin v. Conklin, 3 Sandf. C. R. 64 ; Hitch- 
 cock V. Skinner, supra. Or, as is most usual, his share shall include 
 the improvements. St. Felix v. Rankin, 8 Ed. C. R. 323 j Brookfield 
 V. Williams, 1 Green. Ch. 341 ; Sneed v. Atherton, 6 Dana, 276 ; 
 Borah v. Archer, 7 Dana. 176. 
 
 '■ [See as to the jurisdiction of equity in case of part-owners, Crapster 
 V. Griffith, 2 Bland. R. 5 ; Milburn v. Guythur, 8 Gill, 92 ; Brenan v. 
 Preston, 2 De G. M. & Gord. 813, 10 Hare, 331 ; Darby v. Baines, 
 9 Hare, 869. Equity has undoubted jurisdiction to enforce agreement 
 of part-owners, as in other cases. Darby v. Baines. It will also have 
 jurisdiction to aid by injunction the process of a Court of Admiralty in 
 a possessory suit. Thus part-owners, who had taken possession of the 
 machinery of a steam vessel, so as to prevent her sailing under a 
 charter-party, were restrained from continuing that possession ; there ap- 
 pearing to be difficulty in the relief in Admiralty, either on account of 
 the delay, or because the complainants were in possession of the vessel. 
 Brenan v. Preston, 2 De G. M. & G. 813.] 
 
 32 
 
498 ADAMS S DOCTRINE OF EQUITY. 
 
 penses, and have no share in the profits. It is con- 
 sidered that the same right exists where the owners are 
 equally divided, but its extension to a minority is more 
 doubtful. (j9)i 
 
 The equity for assignment of dower originates, in like 
 manner with that for partition, out of the unity of pos- 
 session of the widow and heir.^ 
 
 ft 
 
 (p ) Story on Partnership, s. 427-439 ; Smith's Merc. Law, 174 ; 
 Davis V. Johnston, 4 Sim. 539. 
 
 1 [In Dayis & Brooks v. The Brig Seneca, 6 Penn. L. J. 218, it was 
 held by the Circuit Court of the United States for the Eastern District 
 of Pennsylvania, that a sale might be decreed in Admiralty, where 
 part-owners are equally divided.] 
 
 ^ 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 seised of a present free- 
 hold, 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. Morton, 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. Moor- 
 man, 7 Porter, 522 ; Shoemaker v. Walker, 2 Ser. & Eawle, 554 ; 
 Stevens v. Smith, 4 J. J. Marsh. 64 ; Rowton v. Rowton, 1 Hen. & 
 Munf. 92 ; Bailey v. Duncan's Rep. 4 Monr. 262 ; Fleeson v. Nichol- 
 son, Walker's Miss. 247 ; [Bowie v. Berry, 1 Maryl. Ch. 452 ; Thompson 
 V. Thompson, 1 Jones, (N. C.) 430 ; Stewart v. Heard, 4 Maryl. Ch. 
 319.] 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. Jackson, 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 ; Bvertson v. 
 Tappen, 5 John. C. R. 497 ; Russell v. Austin, 1 Paige, 192 ; Reed v. 
 Morrison, 12 Ser. & Rawle, 18 ; Kittle v. Van Dyck, 1 Sandf C. R. 76; 
 Hartshorne v. Hartshorne, 1 Green Ch. 349 ; Heth v. Cocke, 1 Band. 
 344 ; Wheatley v. Calhoun, 12 Leigh, 264 ; [Manning v. Laboree, 33 
 
OF ASSIGNMENT OF DOWER. 499 
 
 By the old law the widow's right of dower was a 
 right to have assigned to her on the death of her hus- 
 
 Maine, 343; Eossiter v. Cossit, 15 N. H. 38 ; Mantz v. Buchanan, 1 
 Maryl. Ch. 202 ; though she joined in the mortgage : Simonton v. Gray, 
 34 Maine, 50. See ante, 198, note.] Of a rent. Herbert v. Wren, 
 
 7 Cranoh, 370 ; Williams v. Cox, 8 Ed. Ch. 178. Of land bought with 
 partnership funds, if it is not properly the partnership property. Wheat- 
 ley T. Calhoun, 12 Leigh, 264. Of a fee simple, determinable by execu- 
 tory devise, on her husband dying without issue living at the time of his 
 death. Evans v. Evans, 9 Penn. 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 ; Bullard v. Bowers, 10 
 N. H. 500; [Gammon v. Freeman, 31 Maine, 248; Eslava v. Lepre- 
 tre, 21 Alab. 504 ; Edmondson v. Welsh, 27 Id. 578.] 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 continuance of the particular estate. Dunham 
 V. Osborn, 1 Paige, 634 ; Cocke v. Philips, 12 Leigh, 248. Nor of an 
 estate of which her husband was merely trustee. Powell v. Manufac- 
 turing Co. 3 Mason, 347 ; Robison v. Codman, 1 Sumner, 121 ; De- 
 rush V. Brown, 8 Ham. 412 ; Bartlett v. Gouge, 5 B. Monr. 152; Cow- 
 man v. Hall, 3 Gill & J. 398 ; Thompson v. Murray, 2 Hill C. E. 204, 
 213 ; Dean v. Mitchell, 4 J. J. Marsh, 451 ; Lenox v. Notrebe, 1 
 Hempst. 251. Nor of partnership property as against creditors of the 
 firm. Greene v. Greene, 1 Ham. 535. See also Sumner v. Hampston, 
 
 8 Ham. 338 ; Richardson v. Wyatt, 2 Desau. 471 ; Pierce v. Trigg, 10 
 Leigh, 406 ; [Goodburn v. Stevens, 1 Maryl. Ch. 420 ; Galbraith v. 
 G-edge, 16B. Monr. 631; and post, 246, note;] sed vide Smith v. 
 Jackson, 2 Ed. Ch. R. 28, wherein the doctrine of Greene v. Greene, 
 supra, is questioned. Nor of the land of husband, found, before mar- 
 riage, to be of unsound mind, and who continued so until death. Jen- 
 kins V. Jenkins, 2 Dana, 102. Nor of the estate of a joint tenant. 
 Mayburry v. Brien, 15 Pet. 21. [Nor of a mere privilege. Kingman 
 V. Sparrow, 12 Barb. 201. Nor of a pre-emption right. Wells v. 
 Moore, 16 Mo. 478.] 
 
 Nor shall the widow entitled to dower in land sold by her husband, 
 
500 ADAMS'S DOCTRINE OF EQUITY. 
 
 band, a third part of the lands and tenements of which 
 he was seised during the marriage in fee simple or fee 
 tail, and which her issue (if any) might by possibility 
 have inherited. If the thing of which she was en- 
 dowed were divisible, her dower must have been set out 
 by metes and bounds ; if it were indivisible, she must 
 have been endowed specially, as of the third presenta- 
 tion to a church ; the third toll dish of a mill; the third 
 part of the profits of an office, and the hke. Upon 
 L *" -I *the death of the 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. (5) 
 
 (2) 1 Steph. Blackst. 249-254 ; 3 Steph. Bl. 657-6^1 ; 3 & 4 Wm. 
 4, c. 27, s. 36. 
 
 take any advantage from the improvements made by the purchaser, but 
 may from the increased value of the land. Thompson v. Morrow, 5 Ser. 
 & Rawie, 290 ; Braxton v. Coleman, 5 Call R. 433 ; Hazen v. Thnrber 
 et al. 4 Johns. C. R. 604 ; [Bowie v. Berry, 1 Maryl. Ch. 452 ;] Da- 
 shiel V. Collier, 4 J. J. Marsh. 603; Beavers v. Smith, 11 Ala. 20; 
 Mosher v. Mosher, 15 Maine, 371; Powell v. Manufacturing Co. 3 
 Mason, 347 ; Dunseth v. Bank U. S. 6 Ohio Rep. 77 ; [Manning v. 
 Laboree, 33 Maine, 343 ; Johnston v. Van Dyke, 6 McLean, 422.] 
 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. R. 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. Als- 
 berry v. Hawkins, 9 Dana, 177. 
 
OF ASSIGNMENT OF DOWER. 501 
 
 The inconveniences attending assignment at law, 
 coupled with the diJOSculties to which the dowress was 
 exposed, by reason of her evidence being in possession 
 of the heir, gave rise to a concurrent jurisdiction in 
 equity for issuing a commission to set out her dower, or 
 making a reference to the Master for the same pur- 
 pose, (r)^ 
 
 At the same time with the decree for assigning dower, 
 an account might, before the late statute, 3 & 4 Wm. 4, 
 0. 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 common law the deman- 
 dant 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 ac- 
 
 (r) Curtis V. Curtis, 2 B. C. C. 620 ; Mundy v. Mundy, 2 Ves. J. 
 122; Pnlteney V. Warren, 6 Ves. 73, 89; Agar v. Fairfax, 17 Ves. 
 533,552; Seton, 261. 
 
 ' [Courts of equity have concurrent jurisdiction with Courts of law, 
 in the assignment of dower, yet they always treat it as a strictly legal 
 right, and are governed by the same rules of right with Courts of law, 
 and will not permit an equity to be interposed to defeat the dower. Blain 
 V. Harrison, 11 111. 384; Potier v. Barclay, 15 Alab. 439 ; Kiddall v. 
 Trimble, 1 Maryl. Ch. 143. But where the widow applies for equi- 
 table relief in relation to dower, which a Court of law cannot grant, 
 she cannot resist an equitable defence, as against a purchaser for a valu- 
 able consideration, who is ignorant of her claim of dower. Blain v. 
 Harrison, ut sup.J 
 
502 ADAMS'S DOCTRINE OF EQUITY. 
 
 count of rents and profits from the death of her hus- 
 band ; and although at law her right to damages would 
 be lost by the death of the heir, yet such death, if oc- 
 curr'mg pendente lite, was not allowed in equity to 
 L ^^"J *pj.eju,ji(.e her claim, (s) It is now enacted by 3 
 & 4 Wm. 4, c. 27, s. 40, that no arrears of dower, nor 
 any damages on account of such arrears, shall be reco- 
 vered by action or suit for a longer period than six 
 years next before the commencement of such action or 
 suit.^ 
 
 The right of the widow under certain modifications, 
 still exist ; but by the recent Dower Act it has been re- 
 duced, as to all women married after 1st January, 1834, 
 to a right of a very precarious description, which the 
 husband may defeat by conveyance or devise, or by a 
 simple declaration that his estate shall be exempt. (<) 
 
 The equity for relief against subtraction or non-pay- 
 ment of tithe originates in the fact that the tithes, with 
 the remaining produce, continue rightfully in possession 
 
 (s) 20 Hen. 3, c. 1 ; Curtis v. Curtis, 2 B. C. C. 620 ; Oliver v. 
 Eichardson, 9 Ves. 222. 
 (0 3 & 4 Wm. 4, c. 105. 
 
 ' A widow is entitled, in equity, to an account of the rents and ] 
 until her dower is assigned, independently of the Statute of Merton. 
 Keith V. Trapier, 1 Baily Eq. 63. In Sellman v. Bowen, 8 Gill & J. 
 50, and Steiger t. Hillen, 5 Gill & J. 121, it was held that she was en- 
 titled 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 sub- 
 poena. And in Garton v. Bates, 4 B. Monr. 366; Golden v. Maupin, 
 2 J. J. Marsh. K. 240 ; and Kendall v. Honey, 5 Monroe, 283, that 
 she was not entitled to profits even from the commencement of the suit. 
 [The widow is entitled to an account of rents and profits, only from the 
 time of assignment, where the husband does not die seised. Bolser v. 
 Cushman, 34 Maine, 348.] 
 
OF SUBTRACTION OF TITHES. 503 
 
 of Jhe tithe-payer, who is bound to set them apart and 
 to account for them to the tithe-owner ; and it is ac- 
 cordingly 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. (?t) 
 
 The right to tithe is a right capable of enforcement 
 at the common law, and also to some extent in the Ec- 
 clesiastical 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 
 sufficient to observe that the tithe-owner, suing in those 
 Courts, is in some cases 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 re- 
 quired to waive it if he sues in equity, (u) 
 
 The relief prayed by a bill for tithes may be resisted 
 in two ways : the defendant may either deny the plain- 
 tiffs title ah origine, alleging an adverse right in some 
 third *person, and establishing it by proof of an p^„„„-, 
 actual grant, or by presumption arising from ^ -J 
 long enjoyment ; {to) or he may admit a primary title in 
 the plaintiff, and insist on an absolute or partial dis- 
 charge, either by a prescription 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 decimandi, com- 
 monly 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 
 composition real, which is an agreement made between 
 
 («) Pulteney v. Warren, 6 Ves. 73, 90 ; St. Asaph v. Williams, Jac. 
 349. 
 {v) 3 Steph. Bl. 123-125, 708. 0«) Ibid. 125-127. 
 
504 ADAMS'S DOCTRINE OF EQUITT. 
 
 the owner of lands and the parson or vicar, with the con- 
 sent 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, (jc) If 
 the primary title is disputed, it must 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 prescrip- 
 tion de nan decimando, the Court may either decide the 
 question itself, or may refer it to a jury on a feigned 
 issue, {y) 
 
 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, (s) 
 
 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 contro- 
 versy to a much later period, and was not firmly esta- 
 Wished until after the *Restoration. Since that 
 L -I period the Court of Chancery has always been 
 held to have a concurrent authority with the Exche- 
 quer ; and when the equitable jurisdiction of that Court 
 was abolished, it obtained the sole jurisdiction on the 
 subject. 
 
 The jurisdiction was originally exercised without re- 
 
 (x) 3 Steph. Bl. 127-133. 
 
 (y) Knight v. Waterford, 11 CI. & F. 657 ; Kaine v. Cairns, 4 Hare, 
 327, 333 ; 12 CI. & F. 833. 
 
 (z) Gordon V. Simkinson, 11 Ves. 509; 2 Dan. C. P. 1056; 1 
 Madd. C. P. 334. 
 
ASCERTAINMENT OF BOUNDARY. 505 
 
 fereuce 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 or exemp- 
 tion of the property sought to be charged, is lona fide 
 in question. («) And by the gradual operation of the 
 Tithe Commutation Acts, for converting all tithes into 
 fixed rent-charges, recoverable by distress and entry, it 
 is becoming practically extinct. (6) 
 
 The equity for ascertainment of boundary arises when 
 lands are held in severalty by independent proprietors, 
 but the boundaries have been confused by the miscon- 
 duct 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 ex- 
 ample, 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 ne- 
 cessary, decree an account of rents and profits. (c) 
 
 (a) 5 & 6 Wm. 4, 0. 74 ; 4 & 5 Viet. c. 36 j 3 Steph. Bl. 709. 
 
 (i) 6 & 7 Wm. 4, c. 71 ; 1 Viet. c. 69 ; 1 & 2 Vict. c. 64 ; 2 & 3 
 Vict. e. 62 j 3 & 4 Viet. e. 15 ; 5 & 6 Vict. 54 ; 3 Steph. Bl. 133, 
 137. 
 
 (c) Wake V. Conyers, 1 Eden, 331 ; Speer v. Crawter, 2 Meriv. 410; 
 Miller v. Warmington, IJ. & W. 464. 
 
 ' [See Mayor, &o. of Basingstoke v. Lord Bolton, 1 Drewry, K. 170 ; 
 17 Jur. 57.] 
 
506 ADAMS'S DOCTRINE OF EQUITY. 
 
 The equity for payment of rent arises where, by con- 
 fusion of boundaries, *by fraudulent removal of 
 L J goods, or by the incorporeal nature of the here- 
 ditaments 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. ((^)' 
 
 (d) Duke of Bridgewater v. Edwards, 6 B. P. C. by Toml. 368; 
 Holder v. Chambury, 3 P. Wms. 256; Benson v. Baldwyn, 1 Atk.598; 
 Bouverie v. Prentice, 1 B. C. C. 200 ; Duke of Leeds v. New Radnor, 
 2 B. C. 0. 338 ; Attorney-General v. Jackson, 11 Ves. 365 ; [Mayor, 
 &c. of Basingstoke v. Ld. Bolton, 17 Jur. 57 ; 1 Drew. 170.] 
 
 ' Although a Court of Chancery will not ordinarily take jurisdictioa 
 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 sbstructed by fraud, 
 the Court will take jurisdiction, and give relief. Dawson v. Williams, 
 1 Freem. C. R. 99. So where the lease has been lost. Lawrence t. 
 Hammitt, 3 J. J. Marsh. 287. 
 
OF PARTNERSHIP. 507 
 
 ^CHAPTER III. [*239] 
 
 OF PARTNERSHIP. 
 
 The equity for winding up the business of a partner- 
 ship originates in the peculiar character of that relation- 
 ship, as involving not merely a community of interest, 
 but the employment of a common stock, whether con- 
 sisting of property or of mere labor and skill, in some 
 common undertaking, with a view to a common pro- 
 fit.(a)^ In order that such common profit may be ob- 
 
 (a) 2 Steph. BI. 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. R. 144 ; Turner v. Bissell, 14 Pick. 194 ; Simpson v. Feltz, 
 1 McCord C. R. 218 ; Purviance v. McClintee, 6 Ser. & Rawle, 259 ; 
 Dob V. Halsey, 16 Johns. 34 ; Brown v. Higginbotham, 5 Leigh, 583. 
 See also the remarks of Jarman, in his elaborate work on Convey- 
 ancing, vol. vii, p. 11, in notis, wherein the distinction made by Mr. 
 Justice Story (Partnership, p. 51), between participation in the gross, 
 and in the net profits, as a criterion of partnership, is commented upon 
 as unsound. [It has been very frequently held that where compensa- 
 tion for labor and services is to be measured by the contingent profits of 
 an undertaking, according to a fixed proportion, it does not make the 
 person to receive the compensation a partner. There must be an inte- 
 rest in the profits as profits. Ogden v. Astor, 4 Sandf S. C. 311 ; Reed 
 V. Murphy, 2 Greene (la.;, 574 ; Kerr v. Potter, 6 Gill, 404 ; Potter 
 
508 Adams's doctrine op equity. 
 
 tained, it is essential that there be a capacity to contract 
 partnership debts, and to acquire partnership assets, in- 
 dependent of the debts and assets of the individual part- 
 ners, the ultimate balance of which is the profit or loss 
 of the firm. And, therefore, before the interest of an 
 
 V. Moses, 1 Rh. Isl. 430; Stocker v. Brockelbank, 3 Macn. & Gord. 
 250 ; Bull V. Sohuberth, 2 Marjl. E. 38 ; Hodgman v. Smith, 13 Barb. 
 302 ; Pierson v. Steinmeyer, 4 Rich. 389. So, an agreement by one 
 person to furnish capital without interest for the purchase of goods, and 
 by another to sell them and to receive as remuneration one-half the pro- 
 ceeds, after payment of expenses, does not create a partnership. New- 
 man V. Bean, 1 Foster (N. H.) 93 ; Dunham v. Rogers, 1 Penn. St. 
 255. So, as to a single concern, as the running of stages in concert 
 over different parts of a road, there must be a joint undertaking to share 
 in the combined profit and loss. Pattison v. Blanchard, 1 Selden, N. 
 Y. 186. 
 
 A body of persons associated for special purposes distinct from the 
 making of profits is not a partnership. Caldecott v. Griffith, 8 Bxch. 
 898 ; Irvine v. Forbes, 11 Barb. S. C. 587 ; Thomas v. EUmaker, 1 
 Pars. Eq. 98 ; Bright v. Hutton, 16 Jur. 695 ; 3 H. L. Cases, 341. 
 Thus an agreement between two houses to share commissions on sales of 
 goods forwarded by one to the other, does not constitute a partnership. 
 Pomeroy v. Sigerson, 22 Missouri, 177. So subscribers for and holders 
 of stock in a manufacturing corporation, which has been defectively or- 
 ganized, and has transacted business under such defective organization, 
 do not thereby become partners. Fay v. Noble, 7 Gushing, 188. A 
 joint interest in a patent does not by itself create a partnership. Park- 
 hurst V. Kinsman, 1 Blatch. C. 0. 488. 
 
 In Eliott V. Wing, 5 McLean;''l5, it was held that there might be a 
 partnership in buying and selling land, and that it would be governed 
 by the same rules as in other eases. And see also Darby v. Darby, 25 
 L. J. Ch. 371 ; Spalding v. Hedges, 2 Penn. St. 243 ; Brady v. Colhoun, 
 1 Penn. & W. (Penna.) 147 ; Ludlow v. Cooper, 4 Ohio (N. S.) 1 ; Fall 
 River Whaling Co. v. Borden, 10 Cushing, 458 ; Galbraith v. Gedge, 
 16 B. Monroe, 631. In Patterson v. Brewster, 4 Edw. Ch. 352, how- 
 ever, it was said that though there might be a partnership in the use and 
 working of land, there could be none in mere buying and selling it, and 
 that it would not cease to be real estate. Sed qu., and see post, page 
 246, and note.j 
 
OF PARTNERSHIP. 509 
 
 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 necessarily 
 exclude this jurisdiction ; for it may happen that litiga- 
 tion exists between the partners, with which they are 
 fully competent to deal. Such, for example, is the case 
 where the transaction in respect of which relief is sought 
 is wholly independent of the partnership ; or is merely 
 preliminary to it ; or consists in the breach of a cove- 
 nant or of an undertaking *to perform some spe- .-^n . p.-, 
 cific act, so that the decision is unconnected with ■- -^ 
 the partnership account ; or where a dissolution has al- 
 ready taken place, and the balance of account has been 
 struck, so that further investigation is not requisite. 
 But if it be necessary to investigate the account, it can- 
 not be done at law, unless by the adoption of the action 
 of account, the inconveniences of which have been al- 
 ready explained, {by 
 
 (6) 3 Steph. Bl. 532 ; Smith's Merc. Law, 38 ; Foster v. Allanson, 2 
 T. E. 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 en- 
 gagement in the partnership agreemeJt, 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. K. 860; Hunt v. Gookin, 6 Verm. R. 462. [See Cross v. 
 Cheshire, 7 Exch. 43. Where there is a distinct promise to pay an 
 ascertained sum, as where a balance of accounts is struck, assumpsit 
 will lie between partners. Hall v. Stewart, 12 Penn. St. 213 ; Hamil- 
 ton V. Hamilton, 18 Penn. St. 20; Halderman v. Haldorman, 1 Hemp- 
 stead, 557 ; see Morrow v. Riley, 15 Alab. 710 ; Gridley v. Dole, 4 Comst. 
 486 ; Miller v. Andress, 13 Geo. 366 ; and where an account stated re- 
 sulting in such balance is retained by a partner without objection, a pro- 
 
510 Adams's doctrine of equity. 
 
 If a dissolution, as well as an account, be sought, the 
 common law jurisdiction is altogether excluded. 
 
 The incapacity thus existing in the Courts of law con- 
 fers a jurisdiction on the Court of Chancery ; and accord- 
 ingly, if the partnership has been already dissolved, or 
 if 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 dis- 
 charged out of their produce, and the surplus distri- 
 buted among the partners, or the deficiency made good 
 by contribution, (c) 
 
 There may of course be grounds for relief under gene- 
 ral equities, at the suit of one partner against another, 
 independently of this special equity for taking the ac- 
 count,^ e. g., for performance of covenants in the part- 
 
 (c) Ex parte Kuffin, 6 Ves. 119 ; Ex parte Williams, 11 Ves. 3. 
 
 mise will be implied, as in other cases. Van Amringe v. EUmaker, 4 
 Penn. St. 281.] But in matters of difficulty or controversy between part- 
 ners it is now most usual to resort to a Court of equity for their final ad- 
 judication and settlement. Bracken v. Kennedy, 3 Scam. K. 558. It 
 will entertain jurisdiction, although account or other action would lie 
 between the parties. Gillett v. Hall, 13 Conn. E. 426 ; Cunningham 
 V. Littlefield, 1 Ed. C. R. 104. And although one partner cannot bind 
 the firm by deed : Donaldson v. Kendall, 2 Geo. Decis. 227 ; Napier v. 
 Catron, 2 Humph. 534; Dickinson v. Legare, 1 Desau. 587; Skinner 
 V. Dayton, 19 Johns. R. 513 ; Fisher v. Tucker, 1 McCord's C. K 170; 
 Williams 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. Tompkins, 1 Brock. 
 456; Kyle v. Roberts, 6 Leigh. 495; James v. Bostwick, Wright, 
 142. 
 
 ' A Court of equity may compel specific execution of a partnership 
 contract, and may restrain one partner from persisting in a course jeo- 
 pardizing the rights of another, or depriving him of his due share in the 
 
OF PARTNERSHIP. 511 
 
 nership deed, for recovery of assets fraudulently with- 
 drawn, for an injunction against threatened misapplica- 
 tion of assets, and the like ; and if the misconduct of a 
 partner has been knowingly abetted by a stranger, the 
 abettor may be also sued in equity, for the injured part- 
 ners 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 essential 
 characteristic of this *equity is, that it contem- .-^g.,-, 
 plates the winding up of the partnership, 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 successive year, and would only be 
 settled when the partnership was at an end.^ The ordi- 
 
 direotion of the business : see Gillett v. Hall, 13 Conn. K. 426; Pirtle 
 V. Penn. 3 Dana, 248. 
 
 [So where one of the parties to an agreement of partnership has been 
 induced to enter into it upon fraudulent representations, equity will in- 
 terfere and declare it void, except as against creditors. Hynes v. Stew- 
 art, 10 B. Monr. 429 ; Fog v. Johnstone, 27 Alab. 432.] 
 
 ' 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, be- 
 cause one cannot sue himself : the remedy is in equity ; Calvit v. Mark- 
 ham, 8 How. Miss. E. 343. In Pennsylvania, such suit lies at law by 
 statute ; with this restriction, that no act or declaration of one party 
 shall be given in evidence in his own favor to the prejudice of others. 
 Purdon's Digest, tit. Partnership. See, also, for the construction of it, 
 Hepburn v. Curts, 7 Watts K. 300 ; Pennock v. Swayne, 6 Watts & 
 Ser. 231 ; Tassey v. Church, Ibid. 465 ; Meconkey v. Rogers, Bright. 
 R. 450. 
 
 ' It has often been held that there can be no division of partnership 
 
512 ADAMS'S DOCTRINE OP EQUITY, 
 
 nary course is to pray that the partnership may be dis- 
 solved, and the surplus assets distributed ; but this prac- 
 tice has been relaxed in favor 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, leav- 
 ing questions of distribution and contribution as between 
 the partners entirely open for future settlement, (c^) 
 
 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 eflEluxion of the time, or completion or extinc- 
 tion of the business for which the partnership was crea- 
 ted; 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 that the connection is 
 
 (rf) Goodman v. Whitcomb, 1 J. & W. 572; Marshall v. Colman, 2 
 J. & W. 260; Glassington v. Thwaites, 1 S. & S. 124; LoscombeT. 
 Eussell, 4 Sim. 8 ; Wallwortli v. Holt, 4 M. & C. 619; Richardson v. 
 Hastings, 7 Bea. 301, 323; Apperly v. Page, 1 Ph. 779; Fairthorne 
 V. Weston, 3 Hare, 387 ; infra, Pleading, Parties. 
 
 property until all the accounts of the partnership have been taken, and 
 the clear interest of each partner ascertained ; that the Chaneellor may, 
 in a proper case, dissolve the partnership, but cannot aid in carrying it 
 on. Baird v. Baird, 1 Dev. & Batt. 524 ; McRae v. McKenzie, 2 Dev. 
 & Batt. 232 ; Camblatt 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. 
 
OF PARTNERSHIP. 513 
 
 dissolved ;(e)^ and thirdly, by the death or bankruptcy 
 of a partner, or by an execution against him, followed 
 by seizure and sale of his share.^ And when a dissolu- 
 
 (e) Peacock v. Peacock, 16 Ves. 49 ; Crawshay v. Maule, 1 Sw. 495, 
 508 ; Featherstonhaugh v Fenwick, 17 Ves. 298. 
 
 • Even where a partnership is formed for a definite period, it is said, 
 it may be 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. [A dissolution of a part- 
 nership, by sealed articles, by agreement before the time limited, is good, 
 though not under seal. Wood v. Gault, 2 Md. Ch. 433. 
 
 But a partnership is to be considered in existence till it is wound up, 
 and the partner in possession of the place of business of the partnership, 
 has no right, by giving notice of dissolution, to exclude immediately the 
 other partner therefrom, or from the disposal of the effects. Roberts v. 
 Edenhart, 1 Kay, 148.] 
 
 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 dis- 
 solves 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. Sturde- 
 vant, 4 B. Monr. 453. 
 
 As to his power to make an assignment for the benefit of the firm 
 creditors, see MeCullough v. Somerville, 8 Leigh, 415 ; Harrison v. 
 Sterry, 5 Cranch, 289 ; Egberts v. Wood, 3 Paige, 517 ; Robinson v. 
 Crowder, 4 McCord L. R. 519 ; Havens v. Hussey, 5 Paige, 30 ; Hitch- 
 cock V. St. John, 1 Hoff. C. R. 511 ; Mills v. Argall, 6 Paige, 577 ; 
 Pearpoint v. Graham, 4 W. C. C. R. 232 ; [Cullum v. Bloodgood, 15 
 Alab. 34 ; Clark v. Wilson, 19 Penn. St. 414. In Deming v. Colt, 3 
 Sandf. S. C. 284, it was decided, upon much deliberation, that an assign- 
 ment by one partner, without the consent of the rest, where they are 
 present, and actually engaged in the business of partnership, was invalid; 
 and this is undoubtedly the better and sounder opinion. In Porkner v. 
 Stuart, 6 Gratt. 197, however, such an assignment, in the absence of 
 one partner, was held good. See also Kemp v. Carnley, 3 Duer, 1 ; 
 Norris v. Vernon, 8 Rich. 18.] 
 
 " By the general rule of law, eveiy partnership is dissolved by the 
 death of one of the partners, and the dissolution is so effectual, that want 
 
 33 
 
514 ADAMS'S DOCTRINE OF EQUITY. 
 
 tion is thus effected, the executor or administrator of 
 the partner, the assignee under his fiat, or the sheriff's 
 vendee, becomes entitled to *his interest in the 
 ^ J partnership assets, as it shall appear on adjust- 
 ment of the partnership account.(/)^ 
 
 A partnership may also be in some sense dissolved by 
 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 without the con- 
 
 (/) Taylor v. Fields, 4 Ves. 396; Young v. Keighly, 15 Ves. 557; 
 Dutton V. Blorrison, 17 Ves. 193 ; Ke Wait, IJ. & W. 585; Habershon 
 V. Blurton, 1 D. G. & S. 121. 
 
 of notice of it does not have the effect of making the estate of the de- 
 ceased partner liable to debts contracted by the surviving partners, or 
 for their misconduct. Caldwell v. Stileman, 1 Eawle, 212, 216 ; William- 
 son V. Wilson, 1 Bland, 418. But a partner may, by will, provide that 
 the partnership shall continue after his death, and if it be assented to 
 by the surviving partner, it becomes obligatory. Burwell v. Mandeville, 
 2 Howard. U. S. 560. 
 
 ^ As to dissolution by the seizure and sale of one partner's share, see 
 Moody V. Payne, 2 Johns. C. E. 548 ; Place v. Sweetzer, 16 Ohio E. 
 1 12 ; Brewster v. Hammet, 4 Conn. 540 ; Sitler v. Walker, 1 Freem. 
 C. E. 77 ; Doner v. Stauffer, 1 Penn. E. 198 ; Phillips v. Cook, 24 
 Wend. E. 389 ; Eenton v. Chaplain, 1 Stockt. 62. 
 
 ^ A voluntary assignment, by one partner, of all his interest in the 
 concern, dissolves the partnership, although the articles provide that the 
 partnership is to continue until two of the contracting parties shall de- 
 mand a dissolution. Marquand v. N. Y. Man. Co. 17 Johns. E. 525; 
 Whitton V. Smith, 1 Freem. C. E. 231 ; see also, Mason v. CoDnell, 1 
 Whart. 381; Conwell v. Sandidge, 5 Dana, 213; [Horton's App. 13 
 Penn. St. 67.] A partner may, however, assign his interest to another, 
 who, being substituted, may, after the expiration or dissolution of the 
 partnership, maintain a bill for his share of the profits. Mathewson v. 
 Clarke, 6 Howard U. S. 122. So a partnership may be dissolved by the 
 act of God, by the act of the government, as, by a war between the coun- 
 tries of the partners, or by some of the members becoming a body politic. 
 The Cape Sable Co.'s Case, 3 Bland, 674. 
 
OF PARTNERSHIP. 515 
 
 currence of the rest. He may alien his interest in the 
 surpUis to be ascertained by taking the partnership ac- 
 count, but he cannot substitute his alienee to the posi- 
 tion 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 very large partnerships often 
 is conferred. And the effect of such alienation, when 
 properly made, is to determine the relation of partner- 
 ship 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, (h) 
 
 A decree for dissolution will be warranted if it is im- 
 possible that the partnership should be beneficially con- 
 tinued, e. g., if the principles on which the scheme is 
 based are found on examination to be erroneous and im- 
 practicable ; (i) if one partner excludes, or claims to ex- 
 clude the other from his proper share of control 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 conducted *on the stipulated pn^^o-i 
 terms ;(/<;)' if he is dealing fraudulently with the 
 
 ({/) Young V. Keighly, 15 Ves. 557; Diivergier v. Fellows, 5 Bing. 
 248 ; Blundell v. Winsor, 8 Sim. 601 ; Harrison v. Heathorn, 6 Scott 
 N. E. 735 ; 12 Law J. C. P. 282 ; Pinkett v. Wright, 2 Hare, 120, 130. 
 
 (h) Joint Stock Companies' Acts, 7 Wm. 4, and 1 Vict. c. 73 ; 7 & 
 8 Vict. c. 110 and 111 ; Companies' Clauses Consolidation Act, 8 & 9 
 Vict. c. 16 ; 3 Steph. Bl. 182 ; Joint Stock Banks, Acts, 7 Geo. 4, c. 
 46; and 1 & 2 Vict. c. 96 ; 5 & 6 Vict. c. 85 ; 7 & 8 Vict. c. 113 ; 
 3 Staph. Bl. 340. 
 
 (f) Beaumont v. Meredith, 3 Ves. & B. 180 ; Clough v. Kadcliffe, 1 
 D. G. & S. 164. 
 
 (i) Goodman v. Whitcomb, 1 J. & W. 569 ; Hale v. Hale, 4 Bea. 
 
 ' Where a' partnership is formed for a definite term, neither partner 
 
516 ADAMS'S DOCTRINE OF EQUITY. 
 
 business or assets of the partnership ; (Z) or if he is inca- 
 pacitated by incurable lunacy from performing his own 
 part in the partnership business. The lunacy of a part- 
 ner does not per se amount to a dissolution; but if it be 
 not a mere temporary malady, but a confirmed state of 
 insanity, without a fair prospect of speedy recovery, it 
 will warrant a decree for the purpose ; and the partner- 
 ship 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 winding up 
 the concern. 
 
 369; Smith v. Jeyes, 4 Bea. 503 ; Waters v. Taylor, 15 Ves. 10; 2 
 Ves. & B. 299, 304. 
 
 (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 ; [Leaf v. Coles, 1 De G. Macn. 
 & Gr. 171. See S. C. Id. 417, as a proof of the caution necessary in 
 such cases.] 
 
 can, during the term, file a bill for a dissolution merely on the ground 
 that he is dissatisfied, or that the partners quarrel. Henn t. Walsh, 2 
 Ed. C. K. 129. But only little more is needed, and dissolution will be 
 granted, where dissension prevents all hope of advantage. Bishop v. 
 Breckles, 1 Hoff. C. R. 534. Especially where one partner assumes the 
 exclusive control of the business, and is guilty of breaches of faith. See 
 Kennedy v. Kennedy, 3 Dana, 239 ; Howell v. Harvey, 5 Ark. E. 270; 
 G-owan V. Jeff'ries, 2 Ashmead, 296; Maude v. Bodes, 4 Dana, 144; 
 Scory V. Moon, 8 Ibid. 226 ; S. C. 3 Ibid. 331 ; Garretson v. Weaver, 
 3 Ed. C. R. 385. [Breaches of articles of partnership are not neces- 
 sarily the foundation of a decree of dissolution ; but where they are of 
 such a nature, as to show that a partnership cannot be carried on for the 
 benefit of the parties according to the original intention, as apparent from 
 the articles, the partner thus affected may be relieved from the partner- 
 ship, although there is no express provision that the partnership should 
 determine upon the breaches complained of, or any other. Hall v. Hall, 
 3 Macn. & G. 79. See as to what amounts to such breach, Smith v. 
 Mules, 9 Hare, 556.] 
 
OF PARTNERSHIP. 511 
 
 The first step is, that the partnership debts should be 
 ascertained, and the assets applied in their discharge.' 
 
 ' The rule, that copartnership 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 administered in this country. See McCul- 
 loh y. Dashiel, 1 Ear. & Grill E. 96 ; Lucas v. Atwood, 2 Stewart, 378 j 
 White V. Dougherty, 1 Mart. & Yerg. 409 ; Hubble v. Perrin, 3 Ham. 
 287; Topliff V. Vail, Harring. Ch. 840; 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. Matthews, 6 Paige, 19 ; 
 Rodiguez v. HeflBrnan, 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. G. R. 60 ; Grilmore 
 V. N. A. Land Co. 1 Pet. C. C. R. 460. 
 
 [The general rule was also expressly recognized in Murrill v. Neill, 
 8 How. U. S. 414; Muir v. Leitch, 7 Barb. S, C. 341; Jarvis v. 
 Brooks, 3 Foster, N. H. 136 ; Crockett v. Crain, 33 N. H. 542 ; Fall 
 River Whaling Co. v. Borden, 10 Gushing, 458 ; Converse v. McKee, 
 14 Texas, 20 ; Talbot v. Pierce, 14 B. Monroe, 195. But so far as it 
 extends to give an actual preference to the separate creditors over the 
 separate estate, it has been repudiated in several decisions, and has met 
 the disapprobation of some of the ablest Judges in this country. It has 
 been held, in these cases, contrary to the English doctrine, adopted in 
 several of the States (see above), that the joint creditors are always en- 
 titled to come upon the separate estate, whether by execution at law, or 
 where a fund is created for creditors by death or insolvency, and that 
 equity would do no more than marshal the debts, so that the joint credi- 
 tors should be compelled to proceed against the partnership assets in the 
 first instance. Tucker v. Oxley, 5 Cranch, 35 ; Grosvenor v. Austin, 
 6 Ohio, 103 ; Sperry's Est. 1 Ashmead, 347 ; Cleghorn v. Ins. Bank of 
 Columbus, 9 Geo. 320; Emanuel v. Bird, 19 Alab. 596; Reed v. 
 Shepardson, 2 Verm. 120; Allen v. Wells, 22 Pick. 450; White v. 
 Dougherty, 1 Mart. & Yerg. 309 ; Morrison v. Kurtz, 15 Illin. 193 ; 
 Bell V. Newman, 5 Serg. & R. 78 ; though in the latter, a rule was esta- 
 blished of a somewhat anomalous character, borrowed, indeed, from that 
 which obtains on the administration of estates of both legal and equit- 
 able assets, but which is inconsistent with the reasoning of the case it- 
 
518 ADAMS'S DOCTRINE OF EQUITY. 
 
 1 If the parties cannot agree on the intermediate manage- 
 ! ment, whilst the process of dissolution is going on, a re- 
 self. In Camp v. Grant, 21 Conn. 41, the Court went even farther, and 
 held, that as partnership debts are, in equity, joint and several, joint 
 creditors might claim against the estate of a deceased partner, though 
 there were a solvent partner living. As joint creditors, however, have 
 no recourse at law against the separate assets, in such case, so long as there 
 is a surviving partner, it would seem to be going very far to interfere 
 with the legal rights of the separate creditors, by admitting a class of 
 equitable debts to come in pari passu with, and, so far, in derogation of 
 them. Equity, in the administration of legal assets, never disregards 
 legal preferences, though it may, in some cases, by marshalling, obviate 
 their effect upon other creditors, as to the equitable assets, if there he 
 any. As, however, all assets are now legal, the doctrine of marshalling) 
 so far, cannot arise. What special equity then, have the joint creditors? 
 None, it is now universally admitted, but such as they can claim through 
 that of the partners, which is clearly to have the partnership assets ap- 
 plied to the exoneration of the separate estate. The case of insolvency or 
 death of a surviving partner, stands on a different footing, because there, 
 the joint creditors have as much a legal right to recourse against the 
 separate estate, as the separate creditors ; no analogy can, therefore, 
 be drawn between them. It is submitted, indeed, that in all cases, the 
 true principle seems to be, that the separate creditors ought to be as much 
 entitled to avail themselves of the equities between the partners as the 
 joint creditors ; and that, without attributing any inherent equity tfl 
 either class, the assets should be so marshalled, if at all, as to throw the 
 burden of the debts, where, as between the partners, it ought to fall. 
 
 The preference of the joint creditors over the partnership assets, is 
 undoubted. See in Pennsylvania, Doner v. Stauffer, 1 Pa. R. 198 ; Over- 
 holt's App. 12 Penn. St. 222; Deal v. Bogue, 20 Penn. St. 233; Baier's 
 App. 21 Penn. St. 77; Snodgrass's App. 13 Id. 474. And, indeed, the 
 case of Andress v. Miller, 15 Penn. St. 316, would seem to show a 
 return to the entire English doctrine. 
 
 This subject will be found discussed very fully in 3 Kent's Com, 65; 
 and in the note to Silk v. Prime, 2 Lead. Cas. Eq. p. i, 260, 1st Am, 
 Ed.] 
 
 Partnership property cannot be subjected to the separate debts ot 
 partners, until all partnership debts are paid, including debts due from 
 
OF PARTNERSHIP. 519 
 
 ceiver may be appointed to conduct it. But the Court 
 cannot permanently carry on the business, and will not, 
 
 the firm to the partners individually. Christian v. Ellis, 1 G-ratt. 396 ; 
 Buehan 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 partnership creditors, as such, have no lien on the joint 
 effects for their debts ; their right is wholly dependent on the lien which 
 the individual 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. [See Snodgrass's App. 13 Penn. St. 474. J Hence 
 this preference of the joint creditors does not exist when the partner- 
 ship 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, e. g., by a sale of the stock 
 in trade by one partner to another. Parish v. Lewis, 1 Freem. 0. R. 
 299; Robb v. Stevens, 1 Clarke C. R. 191; [Waterman v. Hunt, 2 
 Rhode Island, 298 ; Doner v. Stauffer, 1 Pa. R. 198. And this, if 
 iojia/cZe, whether the partnership be solvent or not: Allen v. Centre 
 Valley E. R. 21 Conn. 130 ; or even if the partner to whom the transfer 
 is made undertakes to pay the debts of the partnership. Baker's App. 
 21 Penn. St. 775. But see Burtus v. Tisdall, 4 Barb. S. C. 571, where 
 it was held, that the members of an insolvent partnership cannot by 
 agreement divide the assets between themselves, so as to apply them to 
 their separate creditors.] 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. 
 
 [As a further consequence of the doctrine just stated, it must affirma- 
 tively appear, that the debts were created on partnership account ; it is 
 not sufficient to show a joint liability of the partners. Snodgrass's App, 
 13 Penn. St. 474. So, too, a sale upon separate executions of each 
 partner's interest, to the same purchaser, passes the whole interest in 
 the partnership property discharged of the joint debts, for the equities 
 of the partners have then ceased. Doner v. Stauffer, 1 Pa. R. 198. 
 As joint creditors have no independent equities of their own, they 
 have no right to come into chancery, to question or prevent any dispo- 
 
520 Adams's doctrine of equitt. 
 
 therefore, appoint a receiver, except with a view to 
 getting in the effects and finally winding up the con- 
 cern, (w)' If, after applying the assets, there are still 
 
 (n) Waters v. Taylor, 15 Ves. 10, 2 Ves. & B. 299; Goodman v. 
 Whitoomb, IJ. & W. 589; Const v. Harris, T. & K. 496; Hare v. 
 Hale, 4 Bea. 369 ; Smith v. Jeyes, 4 Bea. 503 ; infra, Keceiver. [See 
 Wolbert v. Harris, 3 Halst. Ch. 605.] 
 
 sition by the partners of the firm assets, until, as in ordinary cases, they 
 have exhausted their legal remedies. Greenwood v. Brodhead, 8 Barb. 
 S. C. 593. 
 
 The equity of the partners inter se, gives them no greater right as to 
 the separate estate of each other, than separate creditors. Mann v. Hig- 
 gins, 7 Gill, 265. Nor does it extend after dissolution and division of 
 the assets. Holmes v. Hawes, 8 Ired. Eq. 21. j 
 
 ^ The Court, generally, will not appoint a receiver on motion, unless 
 it satisfactorily appears that the plaintiff is entitled to have the partner- 
 ship 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. 0. R. 33 ; [Walker v. House, 4 
 Maryl. Ch. 40 ; Eenton v. Chaplain, 1 Stock. 62.] Nor without notice 
 to those interested ; but there are exceptions, as where irreparable injury 
 would arise from delay. Williamson v. Wilson, 1 Bland C. R. 418; 
 Gowan v. Jeffries, 2 Ashm. 296 ; Holden v. McMakin, 1 Pars. Sel. 
 Eq. Cas. 284; [Hall v. Hall, 3 Macn. & G. 79. So where irreparable 
 injury might ensue from the defendant's acts, a receiver may be ap- 
 pointed even on a bill not praying a dissolution, but restraint from 
 breaches of partnership articles. Hall v. Hall, 3 Macn. & G. 79. And 
 the Court will not refuse a receiver, in a proper case, because questions 
 are raised between the partners on the motion, as where the defendant 
 in possession of the assets alleges that they are not sufficient to discharge 
 the debts due him ; the only object of the appointment of the receiver 
 being to protect the assets till the determination of the respective rights. 
 Blakeney v. Dufau, 15 Beav. 40. A receiver is always granted in a 
 clear case of exclusion : Blakeney v. Dufau, ut sup. ; Wolbert v. 
 Harris, 3 Halst. Ch, 605 ; especially after dissolution, or where dissolu- 
 tion is intended. Druryv. Roberts, 2 Maryl. Ch. 157; Speights v. 
 Peters, 9 Gill, 472. So, where after dissolution, one partner carries on 
 business with the partnership effects on his own account. Speights v. 
 
OF PARTNERSHIP. 521 
 
 outstanding liabilities, the partners must contribute in 
 proportion to their shares ; if, on the other hand, a sur- 
 plus remains, 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 original 
 terms of their contract ; or in the absence of any ex- 
 press declaration on the point, by a reasonable presump- 
 tion from the circumstances of the case.(o)^ If, subse- 
 quently to the *commencement of 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 accord- 
 ingly. If such sums have been advanced or received 
 by way of increase or diminution of capital, they will 
 introduce a new element in the division of profits ; if by 
 way of loan to or from the partnership, they will not 
 
 (o) Thompson v. Williamson, 7 Bli. 432. 
 
 Peters, ut sup. ; Walker v. House, 4 Maryl. Ch. 40. But where on 
 dissolution it is agreed that one or more of the number shall have 
 charge of the affairs, and wind up the partnership, the Court will not 
 lightly interfere, as on mere apprehension of loss. There must be some 
 palpable breach of duty, or an act amounting to fraud, or real endanger- 
 ment of property, to justify the appointment of a receiver. Walker v. 
 Trott, 4 Edw. Ch. 38. A receiver will not be appointed on the appli- 
 cation of the repre.sentatives of a deceased, against a surviving partner, 
 except in a case of mismanagement or improper conduct; but where all 
 the partners are dead, and there is no provision for winding up the con- 
 cern, a receiver is of course, as between the representatives. Walker v. 
 House, 4 Maryl. Ch. 40. Where one partner is bankrupt, the continu- 
 ing partner is entitled to a receiver. Freeland v. Stansfield, 16 Jur. 
 792.] 
 
 ' 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. 332; see also Honore v. Colmesnil, 1 J. J. Marsh. 506; Towner 
 V. Lane, 9 Leigh, 262. 
 
522 ADAMS'S DOCTRINE OF EQUITY. 
 
 aiFect the division of profits, but will be dealt with on 
 the footing of loans in the final settlement of the ac- 
 count. 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 ad- 
 vance shall be treated as an increase of the partnership 
 fund, and not as an independent debt.' The conse- 
 quence 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 as- 
 sets, or on the shares of his copartners 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 ad- 
 vance 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 
 individual. 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. (j9) 
 
 In order to effectuate the realization of assets, the pay- 
 ment of debts, and the distribution of surplus, the Court 
 
 (p) Kiehardson v. Bank of England, 4 M. & C. 165 ; Pinkett v. 
 Wright, 2 Hare, 129 ; Ex parte Ruffin, 6 Ves. 119 ; Ex parte Yonge, 
 3 Ves. & B. 31. 
 
 ' [See Logan v. Bond, 13 Geo. 196.] A copartner having taken 
 money out of the hands of the partnership and carried it into a new 
 concern, which became bankrupt, 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. McFar- 
 lane, 2 Desau. 239. 
 
OF PARTNERSHIP. 523 
 
 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 exercised either by the same 
 decree which directs a dissolution, or, if dissolution has 
 already taken place, by *an interlocutory or- 
 der.(g') The effect of the equity to insist on L J 
 such a sale, where real estate is held by the partner- 
 ship, and a dissolution has been caused by death, is to 
 raise a question of equitable conversion between the real 
 and personal representatives of the deceased partner. 
 The legal ownership will of course devolve according to 
 the limitations in the conveyance ; but the equitable in- 
 terest of the deceased partner in the surplus, so far as it 
 is referable to the real portion of the assets, will devolve 
 on his heir or his executor, according as the equity for 
 sale is confined to satisfaction of the liabilities, or ex- 
 tends to distribution among the partners. The doctrines 
 on this point appear to be as follows : 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 
 
 (g) Crawsbay v. Maule, 1 Sw. 495, 523 ; Featherstonhaugh v. Fen- 
 wiek, 17 Ves. 298 ; Cook v. Collingridge, Jao. 607 ; Simmons v. Leonard, 
 3 Hare, 581. 
 
 (r) Kipley v. Waterworth, 7 Ves. 425. 
 
 ' In -winding up the concerns of a partnership, after a dissolution, 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. R. 11. See also to this point, Evans v. Evans, 9 Paige, 
 178 ; Dougherty v. Van Nostrand, 1 Hoff. C. R. 68 ; Conwell v. San- 
 didge, 8 Dana, 278. 
 
524 ADAMS'S DOCTEINE OF EQUITY. 
 
 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 de- 
 pends on the intention. And it must be determined 
 from the circumstances of the particular case whether 
 that intention was to convert it in toio, both as to the 
 liability for debts, and also as to the destination of the 
 surplus, or to confine it to subservience 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 purposes, but has been intended as an 
 investment of surplus profits, it is in fact taken out of 
 
 , ^ the business, *and belongs to the individual part- 
 
 r 2461 ' . • • 
 
 '- -' ners as their separate property, according to its 
 
 unconverted character ; (■«) and lastly, that the conver- 
 sion, when it operates at all, operates in favor of the 
 personal representative alone, and does not create a lia- 
 bility to probate duty in favor of the Crown, which is a 
 stranger to the converting equity, (v) 
 
 (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; [Darby v. Darby, 25 L. J. Ch. 371.] 
 
 (0 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. 
 
 (v) Custance v. Bradshaw, 4 Hare, 315. 
 
 ' The current of American decisions in respect to real estate purchased 
 with partnership funds, or for the use of the firm, seems to establish : 
 1st. That such real estate is in equity chargeable with the 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, 
 
OP PARTNERSHIP. 525 
 
 If after a partnership has been dissolved by death or 
 bankruptcy, the assets are used by the surviving or sol- 
 
 his share of the surplus of the real estate which remains after paying the 
 debts of the partnership, and adjusting the claims of the different mem- 
 bers of the firm,' as between themselves, is to be considered and treated 
 as real estate. Buchan v. Sumner, 2 Barb. C. R. 165; Sigourney v. 
 Munn, 7 Conn. 11 ; Winslow v. Chiffelle, 1 Harp. Eq. R. 25 ; Thayer 
 V. Lane, Walker's Eq. R. 200 ; Dyer v. Clark, 5 Mete. 562 ; Greene 
 V. Greene, 1 Ham. 535 ; Marvin v. Trumbull, Wright, 386 ; Burnside 
 V. Merrick, 4 Mete. 541 ; Sumner v. Hampson, 8 Ohio, 364 ; Rice v. 
 Barnard, 20 Vt. 479 ; Smith v. Tarlton, 2 Barb. C. R. 336 ; Baird v. 
 Baird, 1 Dev. and Batt. Eq. 524 ; Hoxie v. Carr, 1 Sumn. 173 ; Over- 
 holt's Appeal, 12 Penna. St. R. 222 ; Smith v. Jones, 12 Maine, 337 ; 
 Baldwin v. Johnson, Saxton, 441; Richardson v. Wyatt, 2 Desau. 471; 
 Wooldridge V. Wilkins, 3 How. Miss. R. 360; [Peck v. Fisher, 7 Cush. 
 390; Boyce v. Coster, 4 Strob. Eq. 30; Buckley v. Buckley, 11 Barb. 
 S. C. 44 ; Deming v. Colt, 3 Sandf. S. C. 284 ; Talbot v. Pierce, 14 
 B. Monr. 195 ; see Lang v. Waring, 17 Alab. 145 ; Andrew's Heir v. 
 Brown's Adm. 21 Alab. 437. But a purchaser without notice, of part- 
 nership real estate, takes discharged of the debts. Buck v. Winn, 11 
 B. Monr. 320 ; Boyce v. Coster, 4 Strob. Eq. 30. In Peck v. Fisher, 
 7 Cush. 390, it was held that a levy and sale of such real estate on a 
 separate execution, passed a good title to the purchaser, yet subject in 
 equity to the debts. Ch. J. Gibson, however, in Kramer v. Arthurs, 7 
 Penn. St. 172, was of opinion that as a separate creditor could sell only 
 the contingent interest of a partner in the profits, that being personalty, 
 would not be bound by a judgment. Sed qu., for the judgment would 
 bind the legal estate ; and unless partnership real estate is to be treated 
 as converted out and out, which is against the current of authorities in 
 this country, the conversion for the special purposes of satisfying the 
 equities of the partnership, would leave it, ultra those purposes, uncon- 
 verted. Though on the death of a partner his moiety of the legal estate 
 in partnership land descends to his heir, yet a sale of the whole by the 
 survivor, for the purpose of paying partnership debts, will pass the equit- 
 able estate to the purchaser, and he may compel a conveyance to the 
 heir. Andrews v. Brown, 21 Alab. 437. A lease of partnership land 
 is to be considered a partnership transaction. Moderwell v. Mullison, 
 21 Penn. St. 259.] 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 survi- 
 
526 Adams's doctrine of equity. 
 
 vent 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 
 
 vor. Pugh V. Currie, 5 Ala. 446. See also Smith v. Kamsey, 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, 
 Yeatman v. Wood, 6 Yerg. 20 ; Delony v. Hutcheson, 2 Rand. 183 ; 
 Smith V. Jackson, 2 Ed. C. K. 28 ; Hart v. Hawkins, 3 Bibb. 502. 
 When partners intend to bring real estate into the partnership stock, 
 the intention ought to be manifest by deed or writing, placed on record, 
 that purchasers and creditors may not be deceived. Hale v. Henrie, 2 
 Watts, 143; Forde v. Herron, 4 Munf. 316; [Ridgway's App. 15 
 Penn. St. 177.] 
 
 ^ If a partnership business, after its termination by death or other- 
 wise, is continued by any portion of the associates with the capital or 
 appliances of the firm, all profits derived from such continued 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. Bq. 
 Cas. p. 522. And see Washburn v. Goodman, 17 Pick. 519. [A 
 surviving partner is treated in the light of a trustee, and is bound to 
 furnish a full and accurate statement of all the transactions of the part- 
 nership, and to dispose of the property at the best advantage. He can- 
 not take the property at an estimated value, without the consent of the 
 representatives of the deceased partner, and if he does, he will be account- 
 able to them for the profits made thereby. Ogden v. Astor, 4 Sandf. 
 S. C. 311. A partnership may be continued in equity after the death 
 of one of the partners, for the benefit of his infant children, with the 
 consent of the surviving partners. Powell v. North, 3 Indiana (Porter) 
 392. An express agreement in the articles, that the widow of one of 
 the partners should, if she elected so to do, carry on the business with 
 the survivor, and be entitled to her husband's share of the profits and 
 capital, creates a trust which can be enforced in equity. Page v. Cox, 
 10 Hare, 163. 
 
 It may be remarked here that in a recent case in England, Buckley 
 V. Barber, 6 Exoh. R. 164, it has been held, that partnership chattels, 
 on the death of one, do not survive to the remaining partners ; and that 
 
OF PARTNERSHIP. 527 
 
 taking the subsequent account, the division of the profits 
 is to be the same as if the partner had not died or be- 
 come bankrupt, or is to be determined by any other 
 specific rule ; but the decision will be guided by the cir- 
 cumstances 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 traffic or in the personal 
 skill and activity of individual partners, (w) There is a 
 doubt as to the liability of a surviving partner with re- 
 spect to the mere good-will of a commercial partnership, 
 where such good-will is unconnected with any particular 
 premises, and consists only in the probability that the 
 customers of the old firm will continue their connection 
 with any new firm professedly carried on in continuance 
 of the 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 portion of the 
 partnership assets, so as to entitle the executors of a 
 deceased partner to a share of profits, (cc) ^ 
 
 (w) Crawshay v. Collins, 15 Ves. 218; Brown v. De Tastet, Jac. 284; 
 Cook V. Collingridge, Jac. 607 ; Wedderburn v. Wedderburn, 2 K. 772 ; 
 4 M. & C. 41 ; Willet v. Blanford, 1 Hare, 253. 
 
 (x) Crawshay v. Collins, 15 Ves. 218, 227; Cruttwell v. Lye, 17 Ves. 
 386; Farr v. Pearce, 3 Mad. 74; Lewis v. Langdon, 7 Sim. 421; Willet 
 T. Blantford, 1 Hare, 253, 271. 
 
 they have no power to dispose of them by sale or mortgage in satisfac- 
 tion of debts. But this is not in accordance with the doctrines on the 
 subject as understood in this country : see Story, Partnership, § 344 ; 3 
 Kent, 63 ; Am. note to Buckley v. Barber, ut supr. ; and would be 
 likely to produce no little diflaculty in the winding up of partnerships in 
 such cases. It would rather seem, that as the exception of jus accres- 
 cendi inter mercatores locum non habet, was introduced for the benefit 
 of trade, its operation should be controlled for the same reason.] 
 ' The good-will of a business built up by a copartnership, is an impor- 
 
528 Adams's doctrine of equitt. 
 
 *In addition to the general jurisdiction over 
 L "^ -I 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 qumi partner- 
 ship. It often happens that such co-ov?ners have, by an 
 agreement expressly made or deduced by implication 
 from their acts, formed themselves into a trading part- 
 nership, holding the mines as a portion of its assets. 
 When this is the case the ordinary jurisdiction over 
 partnership will be incidental 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 juris- 
 diction over partnerships will not attach; and if it were 
 an 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 respect to mines ;' 
 
 tant and valuable interest, which the law recognizes and will protect. 
 Williams v. Wilson, 4 Sandf. 0. R. 379. And upon a dissolution it 
 must be sold ; it does not survive. Dougherty v. Van Nostrand, 1 Hoff. 
 C. R. 68. The good-will (consisting of the subscription list, &o.) 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 Parsons' Sel. Eq. 
 Cas. p. 270. 
 
 [The good- will is distinct from the profits of a business ; although in 
 determining its value, the profits are necessarily taken into account, and 
 it is usually estimated at so many years' purchase upon the amount of 
 these profits. Austen v. Boys, 27 L. J. Oh. 714. In this case it was 
 considered that there could be no such thing as the good-will of a busi- 
 ness such as that of a solicitor, which is dependent principally on a con- 
 fidence in the professional skill and integrity of a particular person.] 
 
 1 [In the recent case of Roberts v. Eberhart, 1 Kay Eq. K. U8, how- 
 
OF PARTNERSHIP. 529 
 
 for the working of them has always been considered as 
 a species of trade ; and if each owner were to deal sepa- 
 rately with his separate share, and to have a separate 
 set of miners going down the shaft, it would be practi- 
 cally impossible to work the mine at all. For this reason 
 it is held upon general principles, without reference to 
 the particular circumstances 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, notwithstanding some of the co-owners 
 may dissent. In accordance with the same view, the 
 
 ever, the distinction taken in the text between mines and collieries, seems 
 to be somewhat affected. It was said there by the Vice-Chancellor, that 
 there were two modes of viewing a mining concern. It might be one 
 really held as property by parties who never acquired it for purposes of 
 trade, as where an estate containing mines, has descended from the owner 
 to two co-heirs, and such joint owners agree to work the mines together 
 with their joint property, and buy steam engines, and pay workmen during 
 that working. That would be a partnership in the working, though not 
 in the land ; and either of the joint owners might at any time change 
 his mind, and put an end to the joint working. One might then con- 
 tinue to work, but could not compel the other to go on ; and he who 
 continued to work might have to render an account. The other case 
 would be where the circumstances afforded evidence that the whole 
 property was intended to be used as a partnership concern ; and, there- 
 fore, where any disagreement arose, any of the partners might come 
 into the Court to determine the partnership and have the property 
 divided. In either case it would be proper to ask for a dissolution and 
 winding up of the concern, and for a receiver, if the partners could not 
 agree. 
 
 In this case, two tenants in common of a mine, had been working it 
 jointly, when a disagreement arose, and then one continued to work it, 
 but the other refused to co-operate with him in doing so, or in providing 
 some necessary expenses, though he did not interfere in the management. 
 The managing partner filed a bill for an account and receiver, but did 
 not pray a dissolution. The Court held that it could not at the instance 
 of the managing partner, and where there had been no interference by 
 the other, and no dissolution was prayed, appoint a receiver.] 
 
 .34 
 
630 Adams's doctrine of equity. 
 
 Court grants an injunction against trespass, and allows 
 suits for the mesne profits of a mine or colliery, if it ap- 
 pears from the peculiar character of the property, coupled 
 with the general circumstances of the case, that the re- 
 medy would be impracticable at law,(?/) 
 
 (jj) Crawshay v. Maule, 1 Sw. 495, 518, 523; Jeffreys v. Smith, 1 
 J. & W. 298 ; Fcreday v. Wightwick, 1 R. & M. 45; Bentley v. Bates, 
 4 Y. & C. 182 ; Vice v. Thomas, 4 Y. & C. 538. 
 
OF TESTAMENTARY ASSETS. 531 
 
 *CHAPTER IV. [*248] 
 
 OF ADMINISTRATION OF TESTAMENTARY ASSETS. 
 
 The equity for administering the assets of a testator 
 or intestate does not authorize the Court of Chancery 
 to try the validity of a will. The jurisdiction 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.' 
 
 ' In cases of fraud, equity has a concurreat 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 referred to a Court of law to 
 decide, upon an issue of devisavit vel non; if a testament of personal pro- 
 perty, to the Court of Probate. Yet 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. Rep. 619, 645 ; Colton v. Ross, 2 Paige, 396 ; Hamberlin v. 
 Terry, 7 How. Miss. R. 143 ; Cowden v. Cowden, 2 Ibid. 806 ; Blue 
 V. Patterson, 1 Dev. & Batt. C. R. 457 ; Lyne v. Guardian, 1 Mis. R. 
 410; Van Alst v. Hunter, 5 Johns. C. R. 148; [Hunt v. Hamilton, 9 
 Dana, 90 ; Muir v. Trustees, 3 Barb. Ch. 477 ; McDowall v. Peyton, 
 2 Desaus. 313 ; Burrow v. Ragland, 6 Humph. 481 ; Hunter's Will, 6 
 Ohio, 499 ; Gould v. Gould, 3 Story, 516 ; Watson v. Bothwell, 11 
 Alab. 653 ; Adams v. Adams, 22 Verm. 50. It ha.s been generally 
 held, however, that equity has jurisdiction in the case of a lost, sup- 
 pressed, or spoliated will, to establish the same, and to decree payment 
 of a legacy by the executor, or that the heir shall stand as trustee for 
 tlio disappointed devisee. Allison v. Allison, 7 Dana, 94 ; Bailey v. 
 Stiles, 1 Green Ch. 220; Buchanan v. Matlock, 8 Humph. 390; Meads 
 V. Langdon's heirs, cited, 22 Verm. 59 ; see Story Eq. § 254 ; Hill on 
 
532 Adams's doctrine of equity. 
 
 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 consequent title of 
 the executor. In like manner, if there be no executor, 
 an administrator can only be appointed by the Ecclesi- 
 astical Court. And even fraud, if practised on a testator 
 in obtaining a will, is insufficient 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 
 
 Trustees, 151 ; Legare v. Ashe, 1 Bay (S. C.) 464. Contra, Morning- 
 star V. Selby, 15 Ohio, 345, where the jurisdiction was held to be exclu- 
 sively in the Probate Courts. In Gaines v. Chew, 2 How. U. S. 615, 
 the question was raised, but not decided, the Court holding the com- 
 plainant entitled at least to discovery.] 
 
 1 [In Allen v. McPherson, 1 H. Lords Cas. 191, L. Ch. Cottenham 
 took a distinction between fraud in obtaining particular provisions in a 
 will, and fraud in obtaining a will generally, and argued with great force 
 that equity had jurisdiction in the former, though not in the latter case. 
 The majority of the Lords, however, did not sustain the distinction. 
 That was a case, in which the complainant alleged that the defendant, 
 who was a residuary legatee, had fraudulently induced the testator to 
 revoke legacies of a large amount in his (the complainant's) favor, sub- 
 stituting others of a trifling amount, and it was held that the matter was 
 exclusively within the jurisdiction of the Ecclesiastical Courts. In 3 
 recent case, Hindson v. Weatherill, 18 Jurist, 233, Vice-Chancellor 
 Stuart sustained a bill to decree a solicitor, who had obtained a devise 
 by undue influence, as was alleged, a trustee for the heir ; and con- 
 sidered the jurisdiction of equity in such cases unquestionable, notwith- 
 standing the decision in Allen v. McPherson. See also the remarks in 
 Dimes v. Steinberg, 2 Sm. &. Giflf. 75 ; Morgan v. Annis, 3 De G. & 
 
OF TESTAMENTARY ASSETS. 633 
 
 will itself, but to its subsequent establishment by the 
 Ecclesiastical Court, e. g., by fraudulently obtaining the 
 consent of the next of kin, the executor *'^3,y 
 be decreed to consent to a revocation of the pro- L -I 
 bate. 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) 
 
 (o) Gingell v. Home, 9 Sim. 539 ; Walsh v. Gladstone, 1 Ph. 294 ; 
 Allen V. Macpherson, 1 Ph. 133 ; 1 House of Lord's Cases, 191. 
 
 Sm. 461. On appeal, the case of Hindson v. Weatherill, was reversed 
 on another point (18 Jurist, 499) ; but L. J. Turner took occasion to 
 express very strong doubts, whether such a bill were within the jurisdic- 
 tion of equity at all. The question, however, of the validity of the exe- 
 cution of a power of appointment over personalty by will, has been held 
 to stand on a different footing from that of ordinary testamentary dispo- 
 sitions, and the jurisdiction of Chancery to inquire into the state of 
 mind of the testator, and the influences brought to bear upon it, so far 
 as they affect that validity, asserted. Morgan v. Annis, 3 De Gr. & Sm. 
 461. It appears to be settled iu England, that pending a suit in the 
 Ecclesiastical Court, to recall probate of a will, alleged to have been 
 fraudulently obtained from the testator, by the executor and one of the 
 legatees, a bill for an account and receiver may be sustained against the 
 latter. Dimes v. Steinberg, 2 Sm. & Giff. 75. Without some such 
 qualification, indeed, the broad doctrine of Allen v. McPherson, and 
 that held in this country, might be productive of very great hardship 
 and injustice. Relief by discovery, injunction, and account, is pecu- 
 liarly necessary in the case of a will obtained by fraud; while it is gene- 
 rally beyond the scope of the procedure of the Ecclesiastical or Probate 
 Courts. See also Gaines v. Chew, 2 How. U. S. 619. Whatever be 
 the true principle upon the general question, however, there is no doubt 
 that where a devise is fraudulently obtained on a promise to hold the 
 land in trust for another, the trust may be enforced in equity. Jones 
 V. McKee, 3 Penn. St. 496 ; S. C. 6 Id. 428 ; Jenkins v. Eldredge, 3 
 Story, 181; Howell v. Baker, 4 Johns. Ch. 118; Hoge v. Hoge, 1 
 Watts, 213 ; Miller v. Pearce, 6 Watts & Serg. 97 ; Gaither v. Gaither, 
 3 Maryl. Ch. 158.] 
 
534 ADAMS'S DOCTRINE OF EQUITY. 
 
 The validity of a will of real estate, and of the con- 
 sequent 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 out- 
 standing terms or other legal impediment, they may re- 
 spectively come into equity to have them removed.' If 
 either party, being in possession, fears that 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 eject- 
 ments, 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 tribunal 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 cogni- 
 zance 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 
 
 ^ [Where the heir out of possession seeks to set aside a will, and an 
 impediment exists as to part, as, in the case of land, an outstanding 
 trust term, he may come into equity on account of the inadequacy of the 
 remedy at law ; and the jurisdiction having attached as to part, may be 
 retained as to all. Brady v. McCosker, 1 Comstock, 214.] 
 
 ^ [The law, as stated in the text, if it ever had a solid foundation, 
 has been entirely overthrown in England, by the recent decision of 
 Boyse v. Rossborough, 3 Do G. BI. & Gord. 817 ; 18 Jur. 205 ; aff'g 
 S. C. 1 Kay, 71 ; and affirmed in the House of Lords, in Colclough v. 
 Boyse, 26 L. J. Ch. 256 ; in which it was held that the Court has juris- 
 diction to establish a will of lands, as against the heir at law out of pos- 
 session, at the suit of a legal devisee ; though the estate of the latter be 
 unaffected by a trust, and, though there be no otherground for the in- 
 tervention of equity, than for the speedy determination of thei question. 
 It was shown that such had been the uniform doctrine of Chancery, 
 from the earliest times. The object of such a bill is to compel the heir 
 
OF TESTAMENTARY ASSETS. 535 
 
 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 of 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 validity of the will by examining r*2501 
 every attesting witness who is capable of being 
 produced. (J) 
 
 Assuming the right of a personal or real representa- 
 tive to be established, whether that of an executor or 
 devisee, or that of an administrator or heir, there is an 
 equity for administering the assets of the testator or in- 
 
 (b) Kerricli v. Bransby, 7 B. P. C. 437 ; Pemberton v. Pemberton, 
 13 Yes. 290, 297 ; Bootle v. Blundell, 19 Ves. 494 ; 31 Order of Aug. 
 1841 ; Tatham v. Wright, 2 R. & M. 1 ; Blan v. Ricketts, 7 Bea. 93. 
 
 to try the validity of the will at once, and it is recommended by obvious 
 motives of convenience and justice. If no such remedy existed, a devi- 
 see might be subjected to serious difficulty in making title, by adverse 
 claims of the heir, though the latter, nevertheless, did not choose to 
 subject them, at the time, to the test of an ejectment. It is to be 
 understood, of course, that on a bill of this nature, the principal question 
 is to be tried by an issue of devisavit vel non, or by an action directed 
 by the Court. 
 
 As the title to land can only be settled in the forum rei sitce, a bill 
 to establish a will, will not affect real estate beyond the jurisdiction of 
 the Court in which it is brought. Accordingly, in Boyse v. Colclough, 
 24 L. J. Ch. 7 ; 1 Kay & John. 124, another branch of the case just 
 mentioned, it was held to be no answer to a bill of this character as to 
 land in England, that such a bill had been filed by the same devisee in 
 Ireland, and that an issue of devisavit vel non, had been determined, 
 and a decree made, establishing the invalidity of the will.] 
 
536 ADAMS S DOCTRINE OF EQUITY. 
 
 testate, originating in the inefficacy of the ordinary tri- 
 bunals.^ 
 
 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 ^hich he has actually 
 received, there are means, though not effectual ones, for 
 making him account. But if he neglects or refuses to 
 get in the assets, the Court of Chancery alone can en- 
 force collection, (c) 
 
 With respect to assets actually received, the executor 
 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 
 
 (c) Pearse v. Hewitt, 7 Sim. 471. 
 
 » 
 
 1 [In most of the United States, the jurisdiction over the administra- 
 tion of the estates of decedents is placed in the hands of special tribunals, 
 entitled Courts of Probate, Surrogate, or Orphans' Courts, which, in 
 general, possess the combined powers of the Court of Chancery, and the 
 Ecclesiastical Courts, in England, upon the subject. Proper means are 
 provided to compel the executors and administrators to collect the assets, 
 to settle proper accounts, and to satisfy the claims of creditors, legatees, 
 and distributees. But it sometimes happens, that in order to the relief 
 required, other remedies, than those which are incident to the procedure 
 in these tribunals, are necessary, in which case a resort to Chancery be- 
 comes unavoidable. See Pharis v. Leachman, 20 Alab. 662. Thus a 
 bill may be filed by a creditor, to subject real or personal property, frau- 
 dulently disposed of by the decedent in his lifetime, to his debts. Hagan 
 V. Walker, 14 How. U. S. 29 ; Pharis v. Leachman, ut supr. Or to 
 follow assets which have passed into the hands of legatees or distributees, 
 where the remedies against the executor have been exhausted. Ledyard 
 V. Johnston, 16 Alab. 548. In many of the States, indeed, the ordinary 
 creditors' bills are still entertained. See Story Eq. § 543. In Gould 
 V. Hayes, 19 Alab. 438, it was held, that the original jurisdiction of 
 equity, is not afifected by the statutory jurisdiction conferred on the Or- 
 phans' Court, and similar tribunals, except where there are prohibitory 
 or restrictive words.] 
 
OF TESTAMENTART ASSETS. 537 
 
 will be obtained against him. But there are no means 
 at law for obtaining discovery of the assets on oath, nor 
 for distributing them ratably 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 favorably treated, cannot be recovered 
 unless the executor has assented to the bequest, (rf)' 
 
 In the Ecclesiastical Court any creditor or legatee, or 
 other person having an interest, may compel the execu- 
 tor 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 remitted for that purpose to the 
 Courts of law. A legatee or next of kin may dis- '- J 
 prove or object to the inventory, and may also, .after as- 
 sent, 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 juris- 
 diction attaches on the existence of a trust. This, how- 
 ever, 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 pro- 
 perty for the benefit of others ; but he is not a trustee 
 
 (rf) Deeks v. Strutt, 5 T. R. 690 ; Jones v. Tanner, 9 B. & C. 542, 
 
 ' A legacy cannot be legally reduced into possession by the legatee, 
 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 executor is bound to assent to a 
 specific legacy. See Price v. Nesbit, 1 Hill. C R. 445. 
 
538 Adams's doctrine of equity. 
 
 in the technical sense. It is his duty to pay the credi- 
 tors and legatees out of the assets, and he is personally 
 liable if he neglect to do so. But there is no trust affect- 
 ing the assets themselves. He may dispose of them to 
 a purchaser in the absence of actual fraud, without af- 
 fecting him with a trust by notice ;'■ he may sustain or 
 defend a suit in equity without joining the creditors or 
 
 ^ [See, to the same effect, Field v. Schieffelin, 7 John. Ch. 155; Her- 
 tell V. Bogert, 9 Paige, 57; Tyrrell v. Morris, 1 Dev. & Batt. Eq. 559; 
 Bond V. Ziegler, 1 Kelly, 324 ; Miles V. Durnford, 1 De G. Maon. & 
 Gr. 64 ; Haynes v. Forshaw, 17 Jur. 930 ; though in some of the United 
 States, an administrator being required to sell at public sale, it is held 
 that a private sale passes no title. Fambro v. Gantt, 12 Alab. 305; 
 Baines v. McGee, 1 Sm. & M. 208 ; Saxon v. Barksdale, 4 Desaus. 
 526 ; but see Bond v. Zeigler, ut supr. But if the purchaser has notice 
 that the transaction amounts to a devastavit, he is liable to legatees and 
 distributees, and the property may be pursued. Field v. Schieffelin, ut 
 supr. ; Colt v. Lasnier, 9 Cow. 320 ; Williamson v. Branch Bank, 7 
 Alab. 906 ; Parker v. Gilliam, 10 Yerg. 394 ; Garnett v. Macon, 6 
 Call, 361; Petrie v. Clark, 11 S. & R. 388; Graff v. Castleman, 6 
 Rand. 204 ; Lowry v. Farmers' Bank, 3 Am. L. J. N. S. Ill ; Wil- 
 liamson V. Morton, 2 Maryl. Ch. 94. At law, actual collusion is neces- 
 sary, but equity regards the whole transaction. Williamson v. Morton. 
 A transfer by way of security for, or in extinguishment of a private debt 
 of the executor, is sufficient notice. Petrie v. Clark ; Field v. Schieffe- 
 lin ; Williams v. Branch Bank ; Williamson v. Morton, ut supr. ; Dod- 
 son V. Simpson, 2 Rand. 294. But a pledge for a contemporaneous 
 advance in good faith, has been held within the general rule. Tyrrell 
 V. Morris, 1 Dev. & Batt. Eq. 559 ; see Petrie v. Clark ; Miles v. Durn- 
 ford, ut supr. 
 
 A distinction has been taken in England, in this respect, between par- 
 ticular and general or residuary legatees, the latter not being permitted, 
 as against the purchaser, to question a disposition of the assets by the 
 executors. McLeod v. Drummond, 14 Ves. 361 ; Ace. McNair's App. 
 4 Rawle, 155; contra, Johnson v. Johnson, 2 Hill. Eq. 277; and see 
 Lord Eldon's remarks, 17 Ves. 169, 170. 
 
 The doctrine just considered, it is almost unnecessary to state, apphes 
 only to personal estate. Brush v. Ware, 15 Pet 93.] 
 
OF TESTAMENTARY ASSETS. 539 
 
 legatees as parties ; if he neglect to invest a legacy he 
 will not, like an ordinary trustee, be liable for loss occa- 
 sioned 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 legacies are paid, and the re- 
 sidue ascertained and appropriated, or until some legacy 
 has been set apart from the general fund, that his repre- 
 sentative character ceases, and he becomes a trustee of 
 such residue or appropriated legacy, and is subject, in 
 respect of it, to the ordinary rules respecting trust pro- 
 perty, (e) The position of the heir or devisee is very 
 similar to that of the executor or administriitor. He is 
 not technically a trustee for creditors, but is bound to 
 pay them so far as the assets will go. He is accountable 
 in equity on the same principle, and if he refuses to get 
 in the outstanding *estate, the creditors may en- p..np.„-, 
 force its collection in the same way. (/) ^ ^-' 
 
 In exercising the jurisdiction to administer assets, all 
 such assets as would be recognized at law are termed 
 legal assets, and are administered in conformity with 
 legal rules, by giving priority to debts in order of de- 
 gree ;' so that debts of a higher degree are discharged 
 
 (c) Byrchall v. Bradford, 6 Mad. 13, 235 ; Phillipo v. Munnings, 
 2 M. & C. 309 ; Willmott 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 ; [Atkinson v. Gray, 18 Jur, 283.J 
 Especially will priorities of liens be regarded ; judgment creditors arc 
 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 Thompson v. Brown, 4 John. C. R. 619 ; [and 
 the remarks upon it in Wilder v. Keeler, 3 Paige, 167;] Averill v. 
 Loucks, 6 Barb. S. C. R. 470. 
 
540 ADAMS'S DOCTRINE OF EQUITY. 
 
 before those of a lower ; and debts of equal degree are 
 discharged loari 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 debts, as well of a prior as of a subse- 
 quent date ; 2. Certain specific debts which are by par- 
 ticular statutes to be preferred ; (g') 3. Debts by judg- 
 ment or decree, and immediately after them debts by 
 recognizance of statute ; 4. Debts by specialty, as on 
 bonds, covenants, 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, hona fide owing for valuable 
 consideration ; (A)' 5. Debts on simple contract, as on 
 bills or notes and agreements not under seal, on verbal 
 promises, and on promises implied by law. 
 
 There are also other assets, recognized 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 executor or 
 heir may gain possession, and in respect whereof he may 
 be made chargeable, by the process of the ordinary tri- 
 
 {g) 2 Wms. on Exors. 723. 
 
 \h) Lady Cox's Case, 3 P. Wms. 339. 
 
 ' [The rule wliioh entitles a specialty creditor to preference over legal 
 assets, applies equally where the debt is not yet due, and the executor 
 is bound to set aside a fund for its payment when the time arrives, to 
 the exclusion of simple contract creditors, if necessary. Atkinson v. 
 Gray, 18 Jur. 283.] 
 
OF TESTAMENTARY ASSETS. 541 
 
 bunals, and without the necessity of equitable interfer- 
 ence.'" They consist first of the personal estate, to 
 which the executor *or administrator is entitled 
 by virtue of his ofSce ; and secondly, of the real L -I 
 estate descended or devised, except where the devise is 
 for payment of debts ; a devise of this latter kind ren- 
 dering the estate, as we shall hereafter see, equitable in- 
 stead of legal assets. 
 
 The common law rule as to the liability of real estate, 
 restricted such liability within a narrow compass. The 
 leasehold estates of the debtor were included in his per- 
 sonalty, and were of course liable for all the debts. But 
 his freeholds were only liable for debts by specialty, ex- 
 pressly naming the heirs; and if the descent were broken 
 by a devise, or if the heir aliened before action brought, 
 there was no proceeding 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 credi- 
 tors; 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 subject to the Bankrupt Laws 
 hable to all their debts, but reserving to creditors by 
 
 (i) 3 & 4 Wm. & Mary, c. 14, made perpetual by 6 & 7 Wm. 3, c. 
 14. 
 
 ' [Assets, however, actually realized, from whatever source, and in the 
 hands of the executor as money, are legal assets. So the proceeds of 
 real estate, directed by the Court to be sold for the payment of debts, 
 and paid by the purchaser into Court, are legal assets. Lovegrove v. 
 Cooper, 2 Smales & GifiF. 271; see Story Eq. § 551.J 
 
542 ADAMS'S DOCTRINE OF EQUITY. 
 
 specialty their privilege of precedence. (Z.^) The provi- 
 sions of the acts of 1691 and 1807 were at a later 
 period consolidated and enlarged, and powers were con- 
 ferred on the Court of Chancery to render effectual any 
 sales or mortgages which might be required for satisfac- 
 tion of debts, notwithstanding the infancy or other in- 
 capacity of the heir or devisee. (Z) By the last statute 
 on the 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 de- 
 L -J vised, subject to the payment of his debts, is 
 made assets, to be administered in equity, for payment 
 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 pos- 
 sessed, (r/j) The case of a charge for payment of debts, 
 or of a devise subject to such payment, is expressly ex- 
 cepted from the operation of the act, and retains its 
 original effect of exempting the property as legal assets, 
 and converting it into equitable assets. 
 
 In addition to the two kinds of legal assets, the per- 
 sonal and the real, which have been already mentioned, 
 there is also a third kind, which though not obtainable 
 writhout the intervention of equity, and therefore not in 
 strictness legal assets, is yet, when obtained, to be ad- 
 ministered as such, viz., property held by a trustee for 
 the testator. For although the benefit of the trust, if 
 
 (/,;) 47 Geo. 3, c. 74. 
 
 (0 11 Geo. 4 & 1 Wm. 4, c. 47 ; 2 & 3 Vict. c. 60 ; Price v. Car- 
 ver, 3 M. & C. 157; Scholefield v. Heafield, 7 Sim. 669 j S. C. 8 Sim. 
 470. 
 
 (m) 3 & 4 Wm. 4, c. 104 ; [see under this statute, Foster v. Hand- 
 ley, 1 Sim. N. S. 200.] 
 
OF TESTAMENTARY ASSETS. 543 
 
 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 testator, the trust is made legal assets 
 by the Statute of Frauds, so as to charge the heir in a 
 Court of law.(n) 
 
 Equitable assets may be defined as those portions of 
 the property which by the ordinary rules of law, are 
 exempt from debts, but which the testator has volun- 
 tarily charged as assets, or which, being non-existent at 
 law, have been created in equity.' 
 
 (n) 29 Car. 2, c. 3, s. 10 ; Case of Cox's Creditors, 3 P. Wms. 841. 
 
 ' In iQGst of the States of the Union, the doctrine of equitable assets 
 has been rendered of very limited application, by legislative 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. [And, even in those States, where 
 statutory preferences are given, as all assets are now in effect legal, 
 equity cannot disregard the established order. See on the subject the 
 notes to Silk v. Prime, 2 Lead. Cas, Eq. 1st Am. Ed. p. i, 252 ; Sperry's 
 Est. 1 Ashm. 347; Bloodgood v. Bruen, 2 Bradf. Surr. 8; Stagg v. 
 Jackson, 1 Comst. 206.] Where no such enactments have existed, it has 
 prevailed in full effect. [See Torr's Est. 2 Kawle, 250.} Thus, for- 
 merly 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 paid pari passu. 
 Benson v. Le Roy, 4 Johns. C. R. 651 ; [see Cornish v. Wilson, 6 Gill, 
 303.] So in Virginia, moneys arising from the sale of real property 
 are equitable assets, and to be applied equally to all the creditors, in pro- 
 portion to their claims. Backhouse v. Patton, 5 Peters, 160 ; Black v. 
 Scott, 2 Brock. 325. So in Kentucky, refer to Hilar v. Darby's Adm'r, 
 3 Dana, 18 ; Cloudas'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. [Devises of real estate in trust for the 
 payment of debts, or charges on land for that purpose, are also recog- 
 nized, and given very much the same effect, as in England, except so 
 
544 Adams's doctrine of eqijitt. 
 
 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 de- 
 stroyed ; and that the statutes for the abolition of that 
 law contain an exemption of devises for payment of 
 debts. With respect therefore to such devises, the old 
 rule continues ; and if a testator devises land for pay- 
 mentof his debts, or subject to *a charge for such 
 ^ -^ payment, the devise operates to destroy the 
 original liability, and to subject the land to a new 
 liability by way of 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 aflfect the 
 common law liability, (p)^ Assets of this kind may be 
 
 (o) Shiphard v. Lutwidge, 8 Ves. 26. 
 
 (p) Scott V. Jones, 4 01. & P. 382 ; Lyon v. Colville, 1 Coll. 449. 
 
 far as they would interfere with statutory preferences or regulations. 
 Carrington v. Manning, 13 Alab. 628 ; Hines v. Spruill, 2 Dev. & Batt. 
 93 ; Agnew v. Fetterman, 4 Penn. St. 62 ; Hoover t. Hoover, 5 Id, 
 357 ; Walker's Est. 3 Rawle, 229. A sale by the trustees under such 
 circumstances, will discharge the statutory lien of debts : Cadbury v. 
 Duval, 10 Penn. St. 267 ; and such a trust will prevent the lien of judg- 
 ments from expiring from want of revival. Baldy v. Brady, 15 Penn. 
 St. 111. These trusts and charges, however, as they are no longer ne- 
 cessary to enable creditors to reach the land, are not regarded with as 
 great favor, nor is the same forced construction resorted to in order to 
 their establishment, as formerly. Agnew v. Fetterman, 4 Penn. St. 
 62 ; Carrington v. Manning, 13 Alab. 628 ; Hines v. Spruill, 2 Dev. & 
 Batt. Eq. 93. Where the statute directs equal distribution amongst 
 creditors, a trust by will creating preferences, is so far void. Bull v. 
 Bull, 8 B. Monr. 332.] 
 
 ^ [See to the same effect, Carrington v. Manning, 13 Alab. 628; 
 Lewis V. Bacon, 3 Henn. & Mun. 106; Hines v. Spruill, 2 Dev. & Batt. 
 Eq. 93; Agnew v. Fetterman, 4 Penn. St. 62; Cornish v. Wilson, 
 6 Gill, 318.] 
 
o!f testamentakt assets. 545 
 
 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 ; or if no person be speci- 
 fied, but the produce is distributable by the executors, 
 will confer on them by implication a similar power, (5) 
 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 di- 
 vested 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 reversion remains, to which the equity of redemption 
 is 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 p^gp.^-, 
 *Ieasehold is mortgaged by underlease, (if) If, ^ J 
 after forfeiture, there is no reversion, as, for example, 
 when a fee simple is mortgaged in fee, or a leasehold by 
 
 (2) 1 Sug. on Powers, 134; Gosling v. Carter, 1 Coll. 644. 
 (»•) 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. 
 (0 Plunket V. Penson, 2 Atk. 290. 
 
 35 
 
546 Adams's doctrine of equity. 
 
 assignment of the term, a different rule prevails; for 
 there is nothing left in the mortgagor which can be 
 assets at law, and the new interest is a mere creation of 
 equity.* It has therefore been determined, notwithstand- 
 ing some doubts on the point, that such interest shall be 
 equitable assets.^ The rule of distribution pari passu, 
 however, which has been noticed as incidental to equit- 
 able 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 favor 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 favor 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 freehold estate originates in the statute 
 alone, and is postponed by the same statute to the right 
 of creditors 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, (w) 
 
 («) Case of Cox's Creditors, 3 P. Wms. 341 ; Hartwell v. Chitters, 
 Arab. 308; Sharpe.v. Scarborough, 4 Ves. 538; Clay v. Willis, 1 B. 
 k C. 364, 372 ; 1 Wms. on Exors. 1197; Coote on Mortgages, 60. 
 
 ^ In this country, generally, an equity of redemption of mort^ 
 real estate, can be sold on execution upon a judgment at law. Until 
 foreclosure, the mortgagor remains seised of the freehold, and the 
 mortgagee has in effect but a cliattel interest. See Clark v. Beach, 6 
 Conn. R. 142, 159, 160, and cases there cited. See also Kent's Com. 
 vol. iy, p. 160. 
 
 ^ [But see Lovegrove v. Cooper, 2 Sm. & Griff. 273, in note.] 
 
OF TESTAMENTARY ASSETS. 547 
 
 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 advanced 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 *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 interpo- 
 sition of equity, they may be fairly applied on the prin- 
 ciple, 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 pre- 
 ference, he shall receive no payment out of the equit- 
 able assets, until the creditors, not entitled to such pre- 
 ference, have first received an equal proportion of their 
 debts.' 
 
 ' [See Chapman v. Esgar, 23 Eng. L. & Eq. 597 ; 1 Sm. & Giff. 
 575 ; Cornish v. Willson, 6 Gill, 303 ; Purdy v. Doyle, 1 Paige, 558 ; 
 Wilder v. Keeler, 3 Id. 165. This doctrine is not of very great import- 
 ance in this country, as the distinction between legal and equitable assets 
 no longer exists. An analogous question, however, whether a creditor 
 holding collateral security from the debtor is entitled, notwithstanding, 
 to claim on the estate for the full amount of his debt, has given rise to 
 some conflict of decision. The better opinion is in the affirmative, and 
 that equity will not interfere with his legal right. West v. Bank of 
 Rutland, 19 Verm. 403; Shunk's App. 2 Penn. St. 304; Cornish v. 
 Willson, 6 Gill, 303 ; Mason v. Begg, 2 Mylne & Cr. 448 ; Evans v. 
 
548 ADAMS'S DOCTEINE OF EQUITY. 
 
 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 administered ; or 
 if no creditor or legatee is willing to sue, then by the 
 executor himself, who can only obtain complete exone- 
 ration by having his accounts passed in Chancery, and 
 is therefore entitled to insist on its being done.(v)' The 
 most usual practice, however, is, that the bill should not 
 be filed by the executor, but by one or more of the cre- 
 ditors or legatees. 
 
 A single creditor may, if he pleases, file such a bill, 
 praying payment of his own debt, and a discovery 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 administration. 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 
 
 (ij) KnatchbuU v. Fearnhead, 3 M. & C. 122; Low v. Carter, 1 Bea. 
 426. 
 
 (w) Johnson v. Compton, 4 Sim. 47. 
 
 Duncan, 4 Watts, 24; Kittera's Est. 17 Penn. St. 416; tliougli the 
 rule is otherwise in bankruptcy. See on this subject the notes to Aldrioli 
 V. Cooper, 2 Lead. Cas. Eq. p. i, 229, &c.; and to Silk v. Prime, Id. 
 258, &c. But the other creditors have, in such case, the right to be 
 subrogated to the securities, where they have not been realized. See 
 post, Marshalling.] 
 
 ' If an executor or administrator finds the affairs of the estate so com- 
 plicated as to render the administration difficult and unsafe, he may in- 
 stitute proceedings in equity against all the creditors, to have their claims 
 adjusted by the Court, and to obtain its judgment for his guide. Brown 
 V. McDonald, 1 Hill C. R. 300, 301; [Adams v. Dixon, 19 Geo. 513.] 
 
OF TESTAMENTARY ASSETS. 549 
 
 creditors on behalf *of all.^ The decree on such 
 
 a bill is for a general account of the debts and 
 
 [*258] 
 
 for an account and application of the personal assets. If 
 the personal estate should prove insufficient, a decree 
 will be made against the realty.^ By this means incon- 
 
 ^ A creditor can sue an executor or administrator in Chancery for an 
 account and discovery of assets, on the ground of a trust in the executor 
 or administrator. McKay v. Green, 3 Johns. C. R. 56. And he may 
 come into this Court, not only for discovery, but for distribution of assets. 
 Thompson v. Brown, 4 John. C. R. 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. Burl- 
 ing, 1 Green's Ch. R. 133 ; see also Martin v. Densford, 3 Blackf. 295; 
 Judah V. Brandon, 5 Blackf. 506 ; Cram v. Green, 6 Ham. R. 429. 
 
 [A bill to marshal assets and for administration should be on behalf 
 of the complainant and all other creditors, and the heirs and devisees 
 should be made parties. If, however, proper parties are not made, the 
 bill should not be dismissed, but the complainant may have leave to 
 amend, unless a decree for an account has been made in some other 
 creditor's suit. If several suits are pending, the Court may order the 
 proceedings in all but one to be stayed, and require the parties to the 
 others to come in under the decree. A creditor, who with knowledge 
 of a decree in another suit, brings a separate suit, will be condemned in 
 costs. In such cases, the decree will be made in the case first ready for 
 a hearing, though not the first brought. Stephenson v. Taverners, 9 
 Gratt. 398. 
 
 Creditors of a deceased debtor, may proceed in equity against his 
 heirs residing abroad, as absent defendants, to marshal the assets, and 
 thus subject the land descended, or its proceeds. Carrington v. Didier, 
 8 Gratt. 260. 
 
 The title of a creditor is paramount to the heir-at-law ; and on bills 
 by creditors against devisees and the heir, the latter is not entitled to 
 have the bill dismissed against him, or to an issue of devisavit vel non. 
 Spickernell v. Hotham, 9 Hare, 73.] 
 
 ' [A sale of real estate may be decreed, though some of the heirs are 
 infants; but the claims of the creditors must first be fully adjusted, so 
 
550 ADAMS'S DOCTRINE OF EQUITY. 
 
 venient preference of creditors is avoided, as well as the 
 burden which separate actions 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 
 running 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 compromise 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 ac- 
 cept 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 creditors, for whose benefit the decree 
 is made, become entitled to intervene ; and as a neces- 
 sary 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 it 
 must be again proved in the Master's office, (x) 
 
 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 sub- 
 jected himself to a personal decree, but will be for a 
 
 (x) Sterndale v. Hankinson, 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. 
 
 that their amount, and the necessity of a sale, may be ascertained. Cralle 
 V. Meen, 8 Gratt. 496.] 
 
OF TESTAMENTARY ASSETS. 551 
 
 general account of legacies, and ratable payment of 
 all.(2/)' 
 
 *Immediately on the executor's answer being p^of-q-, 
 obtained, the balance which he admits to be in 
 his hands is secured by payment into Court. A re- 
 ceiver of the outstanding personalty, and of the rents 
 and profits of the real estate, is appointed if the circum- 
 stances 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 bs 
 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 
 
 (y) Mitf. 168. 
 
 ' As a general rule, a legatee may sue the executor for his own parti- 
 cular 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, 3 Barb. C. R. 466 ; Pritchard v. Hicks, 1 Paige C. E. 
 270. And see Brown v. Ricketts, 3 John. C. R. 558. 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 par- 
 ticular legacy, if the defendant admits a sufficiency of assets, a decree 
 for the payment 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. C. R. 174. 
 
 [Legatees and annuitants are bound by the proceedings in a suit for 
 administration between the executors and residuary legatees and devi- 
 sees, although there may be a question as to the debts being primarily 
 charged upon real estate, which may incidentally affect them ; they 
 cannot, therefore, after decree in such suit, sustain an administration 
 suit against the executors. Jennings v. Patterson, 15 Beav. 28.] 
 
552 Adams's doctrine of equity. 
 
 or comproinise it. There is, therefore, no ground for re- 
 straining other creditors from proceeding 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 payment of the plaintiff, but directs a 
 general account and administration, under which all 
 creditors and legatees may claim. And, therefore, if 
 separate proceedings be afterwards carried on, the assets 
 will be protected by the Court from that needless ex- 
 pense. In order to obtain this protection, it is the duty 
 of the executor to put in his answer as speedily as pos- 
 sible, with the view to an immediate decree, and on the 
 decree being made to apply for the necessary inter- 
 ference. The answer must contain a correct account, 
 in order that the balance may be paid into Court, and 
 that the executor may be under no temptation to create 
 delay. If the answer does not state what the assets are, 
 or if the executor be plaintiff, 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 inte- 
 rested, (a)' 
 
 (2) Paxton V. Douglas, 8 Ves. 520 ; Gilpin v. Soutliainpton, 18 Ves. 
 469. 
 
 (a) Clarke v. Earl of Ormonde, Jao. 108, 122. 
 
 ' After a final decree has been made for the administration of a fuad 
 in the hands of executors, &c., for the benefit of all creditors who have 
 a claim, the Court may restrain the creditor from proceeding at law. 
 In re Keceiver of the City Bank of Buffalo, 10 Paige C. R. 378. But 
 an injunction will not be granted to restrain creditors from proceea- 
 
OF TESTAMENTARY ASSETS. 553 
 
 If the separate proceedings be at law, the protection 
 will *be given by injunction. By the old prac- p^„„ „-, 
 tice this could only be done on a bill filed against L -I 
 the particular creditor, but such a bill is now unneces- 
 sary ; and on motion in the administration suit after de- 
 cree, an order will be made restraining any creditor who 
 is seeking, but has not yet obtained, satisfaction at law, 
 from proceeding further in his action. If a judgment 
 has been obtained 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 rendered 
 himself personally liable for the debt, it seems doubtful 
 whether any equity exists for relieving him, and whe- 
 ther the injunction will not be limited to protect the 
 assets alone. (6) 
 
 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 
 
 (J) Lee V. Park, 1 Keen, 714 ; Buries v. Popplewell, 10 Sim. 383 j 
 Kirby v. Barton, 8 Bea. 45 ; Vernon v. Thellusson, 1 Ph. 466 ; Eanken 
 T. Harwood, 5 Hare, 215 ; 2 Ph. 22. 
 
 ings at law, until after an account is decreed. Mactier v. Lawrence, 7 
 Johns. C. C. 20(5. 
 
 And a creditor cannot, in a bill against an executor for his own bene- 
 fit, make another creditor a party defendant, and compel him to desist 
 from prosecuting his suit at law against the executor. Simmons v. 
 Wbitaker, 2 Ired. Eq. K. 129 ; and see Benson v. Le Roy, 4 Johns. 
 C. R. 651 ; Helm v. Darby, 3 Dana, R. 186. 
 
 [Where lands have been sold under a decree in a suit by heirs, and 
 the proceeds are in the hands of a commissioner of the Court, he may 
 be made a party to a bill by creditors to marshal assets, and be restrained 
 by injunction from paying over the proceeds to the heirs. Carrington 
 V. Didier, 8 Gratt. 260.] 
 
554 ADAMS'S DOCTRINE OF EQUITY. 
 
 first.i 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 properly modified decree will be 
 made. If the second bill be filed in a dilFerent Court of 
 equity, there appears 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 adminis- 
 tration 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 personal 
 ^ •J estate not specifically bequeathed, either got in 
 by the executor or still outstanding, and of the funeral 
 and testamentary expenses, debts and legacies ; and to 
 direct payment of the expenses and debts in a course of 
 administration, and afterwards of the legacies. Under 
 the head of testamentary expenses are included the exe- 
 cutor's costs of suit, and those of the plaintiff in a credi- 
 tor's suit, as being necessarily incurred in administering 
 the estate. (cZ) If any further directions are required, 
 either for administering the real estate, or for arranging 
 the order in which the assets shall be applied, they will 
 be given by a subsequent decree. The account of debts 
 
 (c) Pott V. Gallini, 1 S. & S. 206 ; Jackson v. Leaf, IJ. & W. 229, 
 232 ; Beauchamp v. Marquis of Huntley, Jac. 546; Moore v. Prior, 2 
 Y. & C. 375 ; [See Ostell v. Le Page, 16 Jurist, 1164.J 
 
 (<0 Larkins v. Paxton, 2 M. & K. 320 ; Barker v. Wardle, 2 M. & 
 K. 818 ; Tipping v. Power, 1 Hare, 405. 
 
 ^ [See Stephenson v. Taverners, 9 Gratt, 398.] 
 
OF TESTAMENTARY ASSETS. 555 
 
 will be insisted on by the Court before proceeding to dis- 
 tribute a residue, even though the parties to the suit 
 may be willing to Wcaive 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 ad- 
 mission 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 deficiency -^ or 
 
 (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 pay- 
 ment of debts and legacies, and, as a general rule, is first to be exhausted, 
 even to the payment of debts with which the real estate is charged by 
 mortgage, the mortgage being considered but a collateral security for 
 the personal obligation. If, however, a mortgage debt was not con- 
 tracted bji the decedent but by another, as e. y. a pi'ior owner, the land 
 is considered as the debtor ; [and, even if there have been an express 
 contract or covenant by the decedent with the mortgagor to pay the 
 mortgagee, this will only make the personal assets an auxiliary fund ; 
 though, if the contract were with the mortgagee, it would be otherwise.] 
 Cumberland v. Codrington, 3 Johns. C. R. 257 ; Case of Keyzey, 9 Ser. 
 & Eawle, 73 ; Garnett v. Macon, 6 Call's R. 308 ; Dandridge v. Minge, 
 4 Rand. 397 ; Stevens v. Gregg, 10 Gill. & J. 143 ; Kelsey v. Western, 
 
 2 Comstock R. 500 ; Gibson v. McCormick, 10 Gill. & J. 65 ; Bank of 
 U. S. v. Beverly, 1 How. U. S. 134 ; Hoye v. Brewer, 3 Gill. & J. 153 ; 
 Wyse T. Smith, 4 Gill. & J. 296 ; Matter of Hemiup, 3 Paige, C. R. 
 305 ; Stuart v. Carson, 1 Desau. 500 ; McDowell v. Lawless, 6 Monr. 
 141; Haleyburton v. Kershaw, 3 Desau. 105, 115 ; Dunlap v. Dunlap, 
 4 Ibid. 305 ; Hoes v. Van Hoesen, 1 Comstock, 120 ; Walker's Estate, 
 
 3 Rawle, 229 ; [Mansell's Est. 1 Pars. Eq. 369 ; Mason's Est. Id. 129 ; 
 Mitchell 7. Mitchell, 3 Maryl. Ch. 73 ; see note to Duke of Ancaster v. 
 
556 Adams's doctrine of equity. 
 
 he may consent to have the mortgaged 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 judgment creditor will be paid off, for the 
 r*9R9T ^'^^^^ ^^^^ "^* *^^^^ subject to the judgment, and 
 ^ -'it cannot otherwise make a title to the estate. (^) 
 In order to ascertain who the creditors are, a direction 
 is given for publishing advertisements in those quarters 
 where they are most likely to be found. The same 
 course is pursued where a distribution is to be made 
 among next of kin, or where a legacy is given to a class 
 of persons, so that it is necessary to ascertain of whom 
 the class consists. A time is fixed by these advertise- 
 ments, 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 repre- 
 
 (/) Mason v. Bogg, 2 M. & C. 443 ; Hepworth v. Heslop, 3 Hare, 
 485. 
 
 (g) Neate v. Duke of Marlborough, 3 M. & C. 407, 416. 
 
 Mayer, 1 Lead. Cas. Eq. 1st Am. Ed. 455, where this subject is dis- 
 cussed.] 
 
 In New York, by statute, the mortgage debt has been made to fall 
 primarily on the real estate : see Rogers v. Rogers, 1 Paige 0. R.^188 ; 
 Cogswell V. Cogswell, 2 Ed. C. R. 231 ; and see also Kent Com. vol. iv, 
 p. 422. 
 
 [The general rule, also, is confined to mortgages and charges of that 
 nature, and does not apply to the legatee of leasehold property liable for 
 dilapidations during the testator's lifetime, and the former has no right 
 to throw them upon the general residuary legatee, but must discharge 
 them himself. Hickling v. Boyer, 3 Maon. & Gord. 635.] 
 
OF TESTAMENTARY ASSETS. 557 
 
 sentative against any future claim." If, however, a claim- 
 ant should subsequently appear, who was bona fide igno- 
 rant 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 distribution may file a bill 
 against the other distributees and compel them to refund 
 his share. (/«) 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.(?') 
 
 The order in which the assets will be successively ap- 
 plied is the only question which remains for notice. 
 
 ThQ prima facie order of application is as follows : 1. 
 Personal estate not specifically bequeathed ; 2. Real es- 
 tate devised for payment of debts ; 3. Real estate de- 
 scended ;(/<;) 4. Personal and real estate specifically 
 bequeathed or devised, subject to a charge of debts by 
 will;(Z) 5. Personal and real estate subject to a charge 
 of debts by *mortgage, to the extent of such 
 mortgage , 6. Personal and real estate specifi- L J 
 cally given, and not charged with debts. If the per- 
 sonalty and the corpus of the real estate are inadequate. 
 
 {h) David V. Frowd, 1 M. & K. 200 ; Gillespie v. Alexander, 3 Kuss. 
 130; Sawyer v. Birchmore, 2 M. & C. 611 ; Brown v. Lake, 1 D. G. 
 & S. 144. 
 
 (?) Seton on Decrees, 65. 
 
 (Ic) Biederman v. Seymour, 3 Bea. 368. 
 
 (I) Harmood v. Oglander, 8 Ves. 106, 125. 
 
 ' [Where the fund is small, a reference back to the Master, when the 
 cause comes on for farther directions, in order to apportion it among the 
 creditors, may be dispensed with, and the apportionment made on affi- 
 davit. Bear t. Smith, 5 De G. & Sm. 92.] 
 
558 Adams's doctrine of equity. 
 
 the heir or devisee may be charged with bygone 
 rents, (m)^ 
 
 (m) Curtis v. Curtis, 2 B. C. C. 620, 628, 633 ; Seton on Decrees, 
 86 ; Clarendon v. Barham, 1 N. C. C. 688, 704. 
 
 ^ [Though the cases in this country, on this branch of the subject of 
 marshalling, are not by any means reducible to one harmonious system, 
 still it may be more convenient to group them together, so as to show 
 how far they follow or depart from theorder established in England, and 
 stated in the text. 
 
 (1.) There is, in general, no doubt that the general personal estate, as 
 it is the primary fund for the payment of debts, so must first bear their 
 burden, unless expressly exonerated. Hays v. Jackson, 6 Mass. 149 ; 
 Hoover v. Hoover, 5 Penn. St. 351 ; Livingston v. Newkirk, 3 Johns. 
 Ch. 312; Kelsey v. Western, 2 Comst. 500; Miller v. Harwell, 3 
 Murph. 195 ; McLoud v. Roberts, 4 Henn. & Munf. 443 ; Chase v. 
 Lockerman, 11 Gill & John. 186 ; Cornish v. Wilson, 6 Gill, 301 ; El- 
 liott V. Carter, 9 Gratt. 549 ; Hull v. Hull, 8 Rich. Eq. 65. The only 
 departure from this rule is in South Carolina, where it is held that where 
 any property, real or personal, is specifically set apart by the will for the 
 payment of debts, it must be first applied. Dunlap v. Dunlap, 4 Desau. 
 305 ; Pinokney v. Pinckney, 2 Rich. Eq. 235. Pecuniary legacies are 
 placed on the same footing, with or else next in order to specific legacies, 
 and though they cannot be actually set apart as can the latter, yet if the 
 personalty be exhausted before they are satisfied, they will be entitled to 
 exoneration out of the other assets. Hoover v. Hoover, 5 Penn. St. 
 351 ; Post V. Mackall, 3 Bland, 486 ; Robards v. Wortham, 2 Dev. 
 Eq. 173 ; Brown v. James, 3 Strob. Eq. 24. In Hays v. Jackson, 6 
 Mass. 149, however, they appear to have been held to follow the fate of 
 the general personal estate in every respect. On the other hand, a 
 general or residuary bequest of personalty, is not equivalent to a spe- 
 cific legacy, so as to be preferred to descended lands : Walker's Est. 3 
 Rawle, 229; Hoes v. Van Hoesen, 1 Barb. C. H. 380; but in South 
 Carolina, this distinction it not recognized, except as to a residuary be- 
 quest, subject to payment of debts : Warley v. Warley, 1 Bail. Eq. 
 397 ; and in New York, it has been held that a general gift of person- 
 alty exonerated it, as regards other legacies, and threw them on the 
 land. Hoes v. Van Hoeson, 1 Barb. Ch. 380 ; 1 Comst. 120 ; see 
 Lewis V. Darling, 16 How. U. S. 1. It appears also that in the last 
 
OF TESTAMENTARY ASSETS. 559 
 
 In order that this arrangement may be clearly under- 
 stood, it is requisite that certain points should be more 
 fully explained. 
 
 State, under the Kevised Statutes, the whole personal estate is to be ap- 
 plied before lands descended. Skidmore v. Romaine, 2 Bradf. Surr. 
 132 ; see Stuart v. Kissam, 11 Barb. S. C. 271. 
 
 (2.) Real estate devised for the payment of debts. Robards v. Wor- 
 tham, 2 Dev. Eq. 173 ; Hoover v. Hoover, 5 Penn. St. 351 ; Hays v. 
 Jackson, 6 Mass. 149. 
 
 (3.) Real estate descended. Ibid. ; Warley v. Warley, 1 Bail Eq. 
 397; Brooks V. Dent, 1 Maryl. Ch. 523; Elliott v. Carter, 9 Gratt. 
 549. After-acquired land is also comprehended in this class. Living- 
 ston V. Newkirk, 3 John. Ch. 812 ; Comm. v. Shelby, 13 Serg. & R. 
 348. So of land devised to the heir, where, according to construction 
 of law, he is in by descent. Ellis v. Paige, 7 Gush. 161. From some 
 of the decisions it would appear, that lands descended would not be 
 marshalled in favor of legacies, as regards simple contract debts, though 
 they are an implied charge upon land in this country : Robards v. 
 Wortham, 2 Dev. Eq. 173 ; Chase v. Lockerraan, 11 Gill & John. 
 186 ; though a doubt seems to be cast on this case, in this respect, by 
 the language of the Court in Alexander v. Worthington, 5 Maryl. Rep. 
 471. And see Alston v. Munford, 1 Brock. 266. But under the re- 
 cent English statute, which assimilates the law in respect to the liability 
 of lands for debts, to that in the United States generally, the opposite 
 doctrine is now established. Tombs v. Roch, 2 Coll. 490; Fleming v. 
 Buchanan, 3 De G. M. & G. 976; Patterson v. Scott, 1 De G. Macn. 
 & G. 531. And it would appear to be that which is followed in Penn- 
 sylvania. It is also supported by Judge Hare in his notes to Aldrich 
 V. Cooper, 2 Lead. Cas. Eq. p. i, 221, and is clearly the more reason- 
 able. 
 
 (4.) Real and personal property specifically devised or bequeathed, 
 but charged with the payment of debts. Hoover v. Hoover, 5 Penn. 
 St. 351 ; Robards v. Wortham, ut supr. ; Elliott v. Carter, 9 Gratt. 
 549 ; Mitchell v. Mitchell, 3 Maryl. Ch. 73 ; Kirkpatrick v. Rogers, 7 
 Ired. Eq. 44. But it is to be remembered, that such a charge on real 
 estate, unless an intention otherwise clearly appears, will not exonerate 
 the personalty: Patterson v. Scott, 2 De G. Macn. & G. 531 ; Collis v. 
 Eobins, 1 De G. & S. 131 ; Kirkpatrick v. Rogers, 7 Ired. Eq. 44 ; 
 Buckley v. Buckley, 11 Barb. S. C. 77 ; Mitchell v. Mitchell, 3 Maryl. 
 
560 Adams's doctrine of equity. 
 
 1. It has been stated that the fund first liable is the 
 personal estate not specifically bequeathed. The propo- 
 
 Ch. 73 ; McCampbell v. McCampbell, 5 Litt. 98 ; Leavitt v. Wooster, 
 14 N. H. 550; Hasenclever v. Tucker, 2 Binn. 525; though disap- 
 pointed legatees will be entitled to stand in the place of the creditors 
 as against the land charged. Paterson v. Scott, 1 De G. Macn. & G. 
 531; Loekwood v. Stockholm, 11 Paige, 87; Cryder's App. 11 Penn. 
 St. 72. 
 
 Where the realty and personalty are blended together in one dispo- 
 sition, and made subject expressly to a joint charge of debts or legacies, 
 or there is a power of sale over realty, and the proceeds, together with 
 the personalty, are constituted a joint fund for that purpose, both con- 
 tribute ratably. Elliott v. Carter, 9 Gratt. 541 ; Cradock v. Owens, 2 
 Sm. & Giff. 241 ; Kobinson v. Governors, &c. 10 Hare, 29 ; Adams v. 
 Brackett, 5 Metcalf, 282 ; see McCampbell v. McCampbell, 5 Litt, 99 ; 
 Ford v. Gaithur, 2 Kich. Eq. 270 ; but, contra, Hoye v. Brewer, 3 Gill 
 & John. 153. In Boughton v. Boughton, 1 H. Lds. Cas.-406, over- 
 ruling S. C. 1 Coll. 26, however, where a testator gave real and personal 
 estates to his executors in trust to receive the rents, issues, profits, and 
 dividends thereof, to retain thereout yearly £10, for their trouble, and 
 then to pay certain legacies and annuities, it was held that there was to 
 be no apportionment, and that the personal estate was the primary fund. 
 This decision did not meet with the approbation of Sir Edward Sugden 
 (Property, H. L. 436), but it was followed by Lord Cranworth, in Tidd 
 V. Lister, 3 De G. Macn. & G. 857, a very similar case. In Kobinson 
 V. The Governors, ut sup., however, Boughton v. Boughton was said 
 not to have been intended to interfere with the general rule just stated, 
 as to cases where the realty and personalty are thrown into one mass, 
 but that the decision proceeded on the ground that the construction of 
 the will in the particular case, showed no intention to create a common 
 mass. On the other hand, in Lewis v. Darling, 16 How. U. S. 10, it 
 was held, in effect, that where legacies are given, and no fund is ex- 
 pressly provided for their payment, but a general residuary disposition 
 of realty and personalty is made to the same person, it is unnecessary, 
 on a bill to charge the real estate, to show that the personalty is ex- 
 hausted ; and the language of the Court goes to the length of authona- 
 ing a resort to the realty, in such case, in the first instance. This would 
 seem to be against the current of authorities in England, and this 
 country, and is hardly warranted by those cited in the opinion, which 
 
OF TESTAMENTARY ASSETS. 561 
 
 sition would perhaps be more accurately worded by con- 
 fining it to the general residue after dedniction of all par- 
 only show, that where legacies are not expressly provided for, a resi- 
 duary disposition of realty and personalty makes them a charge on land, 
 about which there can be no doubt. But, before Lewis v. Darling, it 
 seemed equally clear, that such a construction did not the less make 
 the personalty the primary fund. Hasenclever v. Tucker, 2 Binn. 525 ; 
 Buckley V. Buckley, 11 Barb. 8. C. 43; Leavitt v. Wooster, 14 N. H. 
 550. 
 
 (5.) The right of a specific legatee disappointed by the recourse of a 
 mortgagee to the personal assets, to be subrogated to his remedy against 
 the laud, as against a devisee, was recognized in Mollan v. Griffith, 3 
 Paige, 402. Where the mortgage was not originally created by the tes- 
 tator, there could be no doubt of this right. See note, ante, p. 261. 
 Where several estates are devised subject to debts, and the testator sub- 
 sequently mortgages one, the devisee of the mortgaged estate is entitled 
 to contribution from the others. Middleton v. Middleton, 15 Beav. 450r 
 Bat in GibsOn v. McCormick, 10 Gill & John. 65, where there was no 
 express charge of debts, the devisee of the mortgaged estate in such case, 
 was held not so entitled. Accord Mason's Est. 1 Pars. Eq. 129 ; S. C. 
 4 Penn. St. 497. 
 
 (6.) The English rule that devisees and specific legatees are to con- 
 tribute ratably after the exhaustion of the previous classes, was followed 
 in Chase v. Lockerman, 11 Gill. & John. 185 ; Teas's App. 23 Penn. St. 
 223; see Alexander v. Worthington, 5 Maryl. R. 493 ; and Skidmore v. 
 Eomaine, 2 Bradf Surr. 182 ; though it was confined in Chase v. Lock- 
 erman, with not much consistency, to cases where the assets prior in order 
 had been exhausted by specialty creditors. This distinction seems to be 
 doubted in Alexander v. Worthington, ut supr., and in England, now 
 that simple contract creditors have a remedy against the land, no longer 
 exists. See above (3). But it has been held in several cases in the 
 United States, that the specific legacies were to abate without contribu- 
 tion from devises. Livingston v. Livingston, 3 John. Ch. 148 ; Miller 
 V. Harwell, 3 Murph. 194; Warley v. Warley, 1 Bail. Eq. 397; Rogers 
 V. Rogers, 1 Paige, 183 ; Hull v. PIulI, 3 Rich. Eq. 65 ; Elliott v. Carter, 
 9 Gratt. 549; Hoover v. Hoover, 5 Penn. St. 351 ; but contra Teas's 
 App. 23 Penn. St. 223. In some of these cases, however, the English 
 rule was plainly mistaken ; and there can be no possible reason, upon 
 principle, for making a distinction between specific legatees and devisees. 
 Where a legacy is charged on land, the legatee is entitled to contribution 
 
 36 
 
562 ADAMS'S DOCTRINE OP EQUITY. 
 
 ticular legacies. For although pecuniary legacies cannot 
 conveniently be net apart in the outset, and the decree 
 therefore, exempts the specific legacies alone, yet if the 
 effect of discharging the debts is to exhaust the person- 
 alty, 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 expressed in the will, or be manifestly implied 
 therein. But the presumption is against the intention 
 to exonerate, and in favor of considering the real estate 
 as an auxiliary fund.(n) 
 
 3. A doubt has arisen whether assets of the third class 
 are confined to lands descended to the heir, or whether 
 
 («) 2 Jarm. on Wills. 564-600 ; Collis v. Kobins, 1 D. G. & S. 131. 
 
 from the other devisees. Loomis's Est. 10 Penn. St. 387 ; Cryder's App. 
 11 Id. 72 ; Teas's App. 23 Id. 229. In New York, under the Revised 
 Statutes, the personal estate is to be applied before real estate descended 
 and devised, and therefore legatees are not entitled to contribution, 
 Skidmore v. Romaine, 2 Bradf. Surr. 132. 
 
 Where, therefore, the English rule is not followed, the order is, after 
 real estate charged with debts, the pecuniary legacies ratably, specific 
 legacies ratably, and lastly, devises. Hoover v. Hoover, 5 Penn. St. 
 351 ; Elliott v. Carter, 9 Gratt. 549. 
 
 (7.) Last in order, is real estate, over which the testator has had a 
 general power of appointment, which he has exercised, and thus made 
 assets for creditors. Fleming v. Buchanan, 22 L. J. Ch. 886; 3 De u. 
 Macn. & G. 976. See ante, 99, note. 
 
 See, on this subject generally, notes to Duke of Ancaster v. Mayer, 
 1 Lead. Cas. Eq. 447 ; and to Aldrich v. Cooper, 2 Id. p. i, 215, 1st 
 Am. Ed.] 
 
OF TESTAMENTARY ASSETS. 563 
 
 the late act, declaring that the lands of which a debtor 
 shall die seised, shall be assets for payment of his debts, 
 has the effect of including lands escheated to the lord ; 
 and a further doubt whether, if the escheated lands 
 are liable, *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. (%^^) 
 
 4. The liability of assets of the fifth class, viz., mort- 
 gaged 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 mort- 
 gage debts, as assets which the testator has expressly 
 charged, but that their liability shall be subordinate to 
 that of assets charged by will ; because the fact of such 
 a charge being made by the testator denotes his inten- 
 tion to exonerate the estate. They are accordingly liable 
 in the hands of a devisee, as a fund for payment of the 
 particular debt,. immediately after property charged with 
 debts and specifically given subject to the charge. Nor 
 vill 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 without a charge, including general 
 pecuniary legacies, 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- 
 
 (««) 3 & 4 Wm. 4, c. 104 ; Evans v. Brown, 5 Bea, 114 ; 11 Law 
 J. 349. 
 
564 Adams's doctrine of equity. 
 
 gaged estate descend to the heir, it will be liable as assets 
 bj descent after lands devised for payment of debts, (o) 
 
 In order, however, to charge any other assets in prio- 
 rity to the mortgaged estate, it is essential that the mort- 
 gage 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 
 T^oc^l it good ; or if it *has become the primary fund in 
 L -I reference to the testator, e. g., if he acquired it 
 subject to the charge, and has not assumed the charge as 
 his personal debt, the devisee or heir is clearly liable.(^)' 
 
 The doctrine respecting mortgaged estates applies 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. (^) 
 
 5. In regard to assets of the fourth and sixth classes, 
 
 (o) Halliwell v. Tanner, 1 K. & M. 633 ; Wythe v. Henniker, 2 M. 
 & K. 635 ; Jotnson v. Child, 4 Hare, 87 ; Lockhart v. Hardy, 9 Bea. 
 849. 
 
 (p) Scott V. Bcecher, 5 Mad. 96 ; Oxford v. Rodney, 14 Ves. 417 ; 
 Evelyn v. Evelyn, 2 P. Wms. 664, Cox's note ; Aneaster v. Mayer, 1 
 B. C. C. 453 ; Ibbetson v. Ibbetson, 12 Sim. 206. 
 
 (j) Knight V. Davis, 3 M. & K. 858 ; Blount v. Hipkins, 7 Sim. 51; 
 Jacques v. Chambers, 2 Coll. 435. 
 
 ' This distinction has been generally recognized. See Cumberland v. 
 Codrington, 3 John C. E. 229, wherein it was held, that if a person pur- 
 chases 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 encum- 
 bered 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. 565 
 
 where both personal and real estate are included, a ques- 
 tion has arisen, whether the personal and real estate 
 should contribute pro rata, or whether the personalty is 
 first liable. It has been determined that in both cases 
 there is a liability ^ro rata, and that, accordingly, if land 
 be devised, and the testator die indebted by bond, a spe- 
 cific legatee may compel the devisee to contribute, (r) A 
 question may also arise under the present law as to the 
 possible 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 held at the date of his will. By the recent 
 Wills Act this rule is altered, and a general or residuary 
 devise is made to extend to all the real estate belonging 
 to the testator at the time of his death. A gift, there- 
 fore, of land in general terms has now ceased to be a 
 specific devise, (s) 
 
 The order of liability which has been above explained, 
 *subject to any variations directed by the will, 
 is that in accordance with which the several ^ -• 
 portions of the assets will be successively applied. It 
 may, however, occur, that in the course of administra- 
 tion, 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 rectified by the equities 
 next considered, of contribution, of exoneration, and 
 marshalling. 
 
 (r) Eoberts v. Walker, 1 E. & M. 752 ; Attorney-General v. South- 
 gate, 12 Sim. 77; Boughton v. James, 1 Coll. 26; [see, on this case, 
 note, ante, 263]; Tombs v. Koch, 2 Coll. 490; Gervis v. Gervis, 14 
 Sim. 654. (s) 1 Vict. c. 26 ; 2 Jarm. on Wills, 547, n. 
 
566 Adams's doctrine of equity. 
 
 [*267] *CHAPTER V. 
 
 OP CONTEIBtTTION, EXONERATION, AND MARSHALLING. 
 
 The equity for adjusting liabilities under a common 
 charge arises where a charge or claim, affecting 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 contribution, exoneration, and 
 marshalling. 
 
 The equities of contribution and exoneration arise 
 wher-e 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 who 
 has paid more than his share is entitled to contribution 
 from the rest.'^ If some are liable in priority to the rest, 
 
 ' The doctrine of contribution is not so much founded on contract, as 
 on the principle of equity and justice, that where the interest is common, 
 the burden also shall be common. Qui sentit commodum, sentire debet 
 et onus. Campbell v. Mesier, 4 Johns. C. K. 334 ; S. C. 6 Johns. C. 
 E. 21 ; [Russell v. Failer, 1 Ohio, St. N. S. 327 ; White v. Banks, 21 
 Alab. 705. See the remarks in Yonge v. Reynell, 9 Hare, 809. Where, 
 therefore, land subject to a lien is held by tenants in common, and one 
 is compelled to pay the lien creditor more than his proportion, he, or his 
 lien creditors, may be subrogated to the lien for the excess. Gearhart 
 V. Jordan, 11 Penn. St. 325. Though if the debt be a personal one of 
 the tenant in common paying, or of his own grantor, no right of contvi- 
 bution of course exists. Wager v. Chew, 15 Penn. St. 323; Cook v. 
 Hinsdale, 4 Cush. 134.] 
 
CONTRIBUTION AND EXONERATION. 567 
 
 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 voluntary act of one party, in expending money 
 for the benefit of all, will not create a right to contribu-. 
 tion. A co-owner of land, for instance, though bound to 
 pay a mortgage on the estate, is not bound to make re- 
 pairs or meliorations, and, therefore, 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. favor of houses and mills, and of the 
 necessary *repairs which they require. (a)^ A 
 similar exception has, by many foreign jurists, L J 
 been thought applicable to ships, on general grounds of 
 maritime policy ; but the rule of the common law is 
 
 (a) Co. Litt. 200 b ; [4 Kent Com. 370 ; Anderson v. Greble, 1 
 Ashin. 136.] 
 
 ' [A tenant in common is not entitled to cliarge his co-tenant with a 
 proportion of the expenses incurred for the benefit of the common pro- 
 perty : Carver v. Miller, 4 Mass. 559 ; Gheeseborough v. Green, 10 
 Conn. 318; 4 Kent Com. 370;Norris v. Hill, 1 Mann. Mich. 202; 
 Crest V. Jack, 3 Watts, 238 ;] Volentine v. Johnson, 1 Hill C. K. 46 ; 
 Hancock t. Day, 1 McMuUan Eq. R. 69; Thompson v. Bostick, Id. 
 75 ; Holt V. Robertson, Id. 475 ; though see Payton v. Smith, 2 Dev. 
 & Batt. Eq. 325, 349; and, c converse, 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. Ibid.; Nelson v. Clay, 7 J. J. Marsh. R. 138. [See, under 
 special statutes in Maine and New Hampshire, Bellows v. Dewy, 9 N. 
 H. 278; Buck V. Spofiford, 31 Maine, 34.J Where co-tenants make 
 partition of land subject to a mortgage, the share of the premises set ofif 
 to each is primarily chargeable with half of the mortgaged debt. Rath- 
 bone V. Clark, 9 Paige, 648. [And see preceding note.] 
 
568 ADAMS'S DOCTRINE OP EQUITY. 
 
 different ; and, in the absence of any express or implied 
 agreement, throws the costs of any repairs on the party 
 directing theni.(&)'^ 
 
 (h) Story on Partnership, s. 421-G; Smith's Mere. Law, 175. 
 
 ' [Hardy V. Sproule, 31 Maine, 71; Schooner William Thomas v. 
 Ellis, 4 Harrington, 309 , Brooks v. Harris, 12 Alab. 555 ; Turner v. 
 Burrows, 8 Wend. 144 ; Reed v. Bachelder, 34 Maine, 205. Though 
 part-owners are liable to contribute for repairs and necessary expenses 
 incurred by one, with the consent of all, and for the common benefit. 
 Story Partn. § 419 ; see Hopkins v. Forsyth, 14 Penn. St. 34. But a 
 part-owner is not, though ship's husband, authorized to borrow money, 
 or to insure the ship, and hence is not entitled to contribution therefor. 
 Turner v. Burrows, ut supr.; Patterson v. Chalmers, 7 B. Monr. 598; 
 Flanders on Shipping, § 385. Whether one part-owner has a lien upon 
 the shares of the rest for his advances, is an unsettled question in this 
 country. Of course, no such lien can be claimed where no right of con- 
 tribution exists. McDonald v. Black, 20 Ohio, 198. And in England, 
 it is now held, on the authority of the decision of Lord Eldon, in Ex 
 parte Young, 2 Yes. & Beam. 242, overruling Lord Hardwicke in Dod- 
 dington v. Hallet, 1 Yes. Sr. 497, that no such lien exists in any case. 
 Lord Eldon's opinion was followed in Patton v. The Schooner Randolph, 
 
 1 Gilp. 457 ; Merrill v. Bartlett, 6 Pick. 46 ; and by Chancellor Kent 
 in Nicoll v. Mumford, 4 Johns. Ch. 522. The latter decision, however, 
 was overruled on appeal, by a majority of the Court of Errors : Mumford 
 V. Nicoll, 20 John. R. 611 ; and the earlier doctrine followed; as it was, 
 also, in Hewitt v. Sturdevant, 4 B. Monr. 453 ; Pragoff v. Heslep, 1 
 Am. L. Reg. 747 ; by Ch. Desaussure in Seabrook v. Rose, 2 Hill Bq. 
 553 ; and it was approved in McDonald v. Black, 20 Ohio, 198. In 
 Missouri, part-owners of steamboats have a lien by statute. Langstaff 
 V. Rock, 13 Mo. 579. See also, on this subject, Gallatin v. The Pilot, 
 
 2 Wall. Jr. 592 ; Knox v. Campbell, 1 Penn. St. 366; and Hopkins 
 v. Forsyth, 14 Penn. St. 34, where it seems to have been held, that a 
 purchaser of the interest of a part-owner, at sheriff's sale, was not subject 
 to such a lien ; and yet, that it could not be claimed upon the proceeds. 
 
 There may be, indeed, a partnership in a ship, either generally, or on 
 a particular adventure, as in any other chattel. Hewitt v. Sturdevant, 
 4 B. Monr. 459; Knox v. Campbell, 1 Penn. St. 366; Story Partn. § 
 408 ; Mumford v. Nicoll, 20 Johns. 611. And in such case, the part- 
 
CONTRIBUTION AND EXONERATION. 569 
 
 If the liability .arise ex delicto there is no right to con- 
 tribution; for there is no equity between wrongdoers.^ 
 But it is otherwise with respect to mere 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 contribution may be 
 enforced as between the trustees themselves; 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 acknowledged 
 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 enforcement at law are very 
 limited ; for, in addition to the impossibility, common to 
 all classes of account, of obtaining discovery on oath or 
 satisfactorily investigating the items, there are other spe- 
 cial diflSculties, originating in the necessity of suing each 
 party liable in a separate action, which renders it difiicult 
 
 (c) Merryweather v. Nixan, 8 T. K. 186; Lingard v. Bromley, 1 Ves. 
 & B. 114; Seddon v. Connell, 10 Sim. 79, 86; Attorney-General v. 
 Wilson, Or. & P. 1 ; [see Hill on Trustees, 761 and notes.] 
 
 owners will be entitled to all the equities and liens which arise from 
 that relationship. But, on the other hand, they cannot claim contribu- 
 tion or subrogation, until the whole partnership affairs are settled. Story 
 Partn. § 219, 419, &c., 260; see Baily v. Brownfield, 20 Penn. St. 45.] 
 ' Contribution will not be enforced in equity between wrongdoers ; 
 especially when the party who seeks it does not stand in aequali jure 
 with the other. Peck v. Ellis, 2 John. C. R. 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. [But this rule is not of universal application. It only applies to 
 cases where the parties, who claim contribution, have engaged together 
 in doing knowingly or wantonly, a wrong. Acheson v. Miller, 2 Ohio 
 (N. S.) 203; Moore v. Appleton, 26 Ala. 633.] 
 
570 ADAMS'S DOCTRINE OF EQUITY. 
 
 to insure verdicts for the true ratable shares, and dis- 
 ables the Court, where one oi several contributors proves 
 insolvent, from distributing the consequent loss ratably 
 among the rest.(c?)' 
 
 The two equities of contribution and exoneration are 
 both exemplified in the case of suretyship :^ the one by 
 
 (d) Cowell V. Edwards, 2 Bos. & P. 268 ; Deering v. Earl of Win- 
 Chelsea, 2 Bos. & P. 270 ; Browne v. Lee, 6 B. & C. 689. 
 
 ' [The jurisdiction of equity in cases of contribution is not affected, 
 because a remedy now exists at common law. Viele v. Hoag, 24 Verm. 
 46; Wayland v. Tucker, 4 Gratt. 268 ; Couch v. Terry, 12 Alab. 225; 
 Hickman v. McCurdy, 7 J. J. Marsh. 559.] 
 
 ^ [The doctrines which are applied in equity to the relation of creditor 
 and surety will be found discussed with great ability and clearness in the 
 notes to Eees v. Berrington, 2 Lead. Gas. Eq. p. ii, 366, foil. The 
 following is, for the most part, a summary of the conclusions drawn by 
 the learned editor from the American cases. 
 
 As it is of the essence of the contract of the surety, that he shall see 
 to the performance of the obligation himself, the creditor is not bound in 
 any way towards him, to diligence in the enforcement of his remedies 
 against the principal. The neglect or omission to take proper mea- 
 sures, by which all opportunity of collecting the debt is lost, unless, 
 perhaps, when amounting to fraud : Dawson v. Lawes, 23 L. J. Ch. 
 434 ; will not affect the liability of the surety. The only exception to 
 this doctrine, is in Pennsylvania, in the case of a guarantee, which, in 
 that State, whether under seal or not, imports on the part of the guarantor 
 merely an obligation to pay if the principal debtor cannot, while that of 
 the surety ariges if the principal does not pay. In such case, therefore, 
 it is held to be the duty of the creditor to pursue the principal at once 
 to insolvency, or at least that actual insolvency shall exist, before he can 
 turn round on the guarantor. Parker v. Gulvertson, 1 Wall. Jr. 149, 
 and cases cited; McClurg v. Fryer, 15 Penn. St. 293; Marberger v. 
 Pott, 16 Id. 13. 
 
 Apart from this special case, it is well established, therefore, that 
 indulgence to the principal, even by an express promise to give time, 
 unless the promise be upon consideration, or otherwise legally binding; 
 or delay in proceeding against the debtor, whether before or after suit 
 
CONTRIBUTION AND EXONERATION. 571 
 
 the rights of sureties as between themselves ; the other 
 by their rights as against the principal. 
 
 commenced, will not discharge the surety, of itself, whatever may be its 
 effects to his injury. See also Marberger v. Pott, 16 Penn. St. 13. And, 
 though both in England, and the United States generally, collaterals 
 held by the creditor, are considered as constituting a trust fund for the 
 benefit of the sureties, yet, contrary to the doctrine in the former country, 
 the creditor seems to be held, here, to no greater diligence with respect 
 to them, than to his direct remedies. 
 
 Where, however, the creditor acts in such a way as directly to impair 
 or destroy the relations of the principal to the surety, or the right of the 
 latter to recourse or idemnity, it will operate as a discharge of the surety 
 to the extent of the injury actually suffered by him. Thus, in the case 
 of a binding promise to give time to the principal, for however short a 
 period, or d fortiori, of his release; of the abandonment or relinquish- 
 ment of collateral securities; of the relinquishment of any lien obtained 
 by suit on the debtor's property ; or of any similar act on the part of the 
 creditor, he loses thereby his right of recourse to the surety. But this, as 
 has been stated, only takes place when such conduct results in actual 
 injury to the surety, and simply to that extent. See also N. H. Savings 
 Bankv. Colcord, 15 N. H. 123; Everly v. Rice, 20 Penn. St. 297; 
 Armistead v. Ward, 2 Patt. & H. 504. Where the creditor has gone 
 farther, and varied the terms of the original contract, in any essential 
 matter, the surety is absolutely discharged, though the alteration may be 
 shown to be actually for his benefit, when he does not assent to the 
 change. In all cases, however, where he insists on a discharge, the 
 surety is bound to surrender to the creditor any indemnity or collateral, 
 which he has obtained from the principal, before he can avail himself 
 of his right. 
 
 % consequence of the principles before stated, a creditor as a general 
 rule, cannot be compelled in equity to resort in the first instance to the 
 principal or bis property, before he can enforce his remedy against the 
 surety. See Hayes v. Ward, 4 Johns. Ch. 123 ; Abercrombie v. Knox, 
 3 Alab. 728; sed vide West v. Belches, 5 Munf. 187. It would seem, 
 however, that there may be cases where such a bill would lie, though 
 the surety would probably be required to indemnify the creditor against 
 the risk, delay, and expense. Whitridge v. Durkee, 2 Maryl. Ch. 
 442; Hayes v. Ward, ut supr. ; Stephenson v. Taverner, 9 Gratt. 398. 
 The surety, indeed, is, without doubt, in this country, entitled to the 
 use of the creditor's remedies against the principal and his property, and 
 
572 Adams's doctrine of equity. 
 
 r*9fiQ1 *The right of contribution arises between sure- 
 ties where one has been called on to make good 
 
 is entitled, therefore, on bill against the principal, to make the creditor 
 a party for that purpose. See post, note ; Stephenson v. Taverner, ut 
 supr. Note to Reese v. Berrington, ut supr.] 
 
 In some of the States, nevertheless, the same end is obtained by what 
 is now well settled, that although mere forbearance, however prejudicial, 
 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. Bald- 
 win, 17 Johns. R. 384 ; Valentine v. Earrington, 2 Ed. C. E. 53 ; 
 Rutledge v. Greenwood, 2 Desau. 389 ; Pain v. Packard, 13 Johns. R. 
 174 ; Bruce v. Edwards, 1 Stew. R. 11 ; see also. Matter of Babcock, 
 8 Story R. 393 ; Spottswood v. Dandridge, 4 Munf 289. So in Penn- 
 sylvania, if the creditor be requested in pais, by the surety, to sue the 
 debtor, and neglect or refuse so to do, the surety will be discharged; 
 provided such request be positive, and accompanied with a declaration 
 that unless it be complied with, the surety will consider himself dis- 
 charged. Cope v. Smith, 8 Ser. & Rawle, 112; Greenawalt v. Kreider, 
 8 Penna. State R. 264. [The request may be made by an agent, and 
 to the agent or attorney of the creditor. The request is binding with- 
 out a tender of expenses, or offer to sue upon the obligation, unless the 
 creditor makes objection on that ground at the time. Wetzel v. Spon- 
 sler's Ex'rs, 18 Penn. St. 462. 
 
 In other States, however, this rule has not been followed. In several, 
 where not adopted by decision, it has been embodied in the statute law. 
 See note to Rees v. Berrington, ut supr. 
 
 Another consequence flowing from the relation of creditor and surety, 
 may be mentioned here, which is the right of the former to be subro- 
 gated to, and to avail himself of all the securities held by the surety. 
 Note to Bering v. Earl of Winchelsea, 1 Lead. Cas. Eq. 87 ; Havey v. 
 Poley, 4 Benn. Mo. 136 ; Vail v. Foster, 4 Comst. 312 ; Houston v. 
 The Branch Bank, 25 Alab. 250 ; Dozier v. Lewis, 27 Mississ. 677 ; 
 see the remarks in Yonge v. Reynell, 9 Hare, 809. This right, how- 
 ever, is entirely subordinate to that of the surety, and when he is in 
 fact not liable on the original contract, cannot be enforced. Bibb v. 
 Martin, 14 Sm. & M. 88 ; Bush v. Stamps, 26 Mississippi, 463.] 
 
 A surety cannot compel a creditor to resort to a collateral security, 
 in the first instance, unless sueh security be as available in all respects 
 as a proceeding against the surety. Gary v. Cannon, 3 Ired. C. R. 6*. 
 
CONTRIBUTION AND EXONEEATION. 573 
 
 the principal's default, and has paid more than his share 
 of the entire liability, (e) ^ If all the sureties have 
 
 (e) Smitt's Merc. Law, 427-8 ; Davies v. Humphreys, 6 M. & W. 
 153, 169. 
 
 ■ Krst. 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 ; Mitchell v. Sproul, 5 
 J. J. Marsh. 264 ; Robertson v. Maxcey, 6 Dana, 103 ; [Yates v. Don- 
 aldson, 5 Maryl. R. 389. See on this subject notes to Dering v. Earl 
 Winchelsea, 1 Lead. Cas. Eq. 87, 1st Am. Ed. But he can only call 
 for contribution when he has paid more than his proportion of the debt, 
 and then for no more than the excess. Lytle v. Pope, 11 B. Monr. 
 309 ; Rutherford v. Branch Bank, 14 Alab. 92. And he must show 
 also that the principal is insolvent, or at least that he has used due dili- 
 gence against him. Where one of the sureties is insolvent, his share is 
 proportioned among the rest, in favor of the surety asking contribution. 
 Note to Dering v. Winchelsea, ut supr. ; Young v. Lyons, 8 Gill, 166. 
 A judgment against a surety paid by a co-surety, stands against the 
 estate of the former, for the amount claimed for contribution. Ruther- 
 ford V. Branch Bank, 14 Alab. 92. And it has been held that where, 
 on a judgment against co-sureties, the land of one has been sold, the 
 judgment creditors of the latter are entitled to be subrogated to the 
 judgment, by way of a claim for contribution, against the land of the 
 other. Moore v. Bray, 10 Penn. St. 519.] But the general doctrine 
 is founded on the maxim, " Equality is equity," and hence where one 
 of two sureties, without the knowledge of his co-surety, and by previous 
 arrangement with the principal debtor, received a share of the sum bor- 
 rowed, he was held not entitled to contribution from such co-surety, 
 when obliged to pay the debt. McPherson 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. 288 ; Hins- 
 dill V. Murray, 6 Vt. R. 136 ; McMahon v. Fawcett, 2 Rand. 514 ; 
 [Bobbitt V. Flowers, 1 Swan (Tenn.) 511.] One surety has, however, 
 an unquestionable right to stipulate for a separate indemnity, and in the 
 absence of fraud or deceit to apply it in extinguishment of his portion 
 of the liability. Thompson v. Adams, 1 Freem. C. R. 225 ; Moore v. 
 
574 ADAMS'S DOCTRINE OF EQUITY, 
 
 joined in a single bond, the general rule, in the absence 
 of any express or implied contract, is that of equality ; 
 
 Moore, ubi supra ; see, also, Moore v. Isley, 2 Dev. & Batt. C. K. 372; 
 Himes v. Keller, 3 AVatts & Serg. 401 ; Bowditoh v. Green, 3 Mete. 
 360 ; Coral. Bk. v. Western B. 11 Ohio K. 444. 
 
 [But a surety, who is indemnified by the principal, cannot recover for 
 contribution, except so far as that indemnity does not extend. John v. 
 Jones, 16 Alab. 455 ; Morrison v. Taylor, 21 Alab. 779. Where a 
 surety obtains indemnity for a consideration paid by him, a co-surety 
 cannot claim the benefit of it, without paying his proportion of the con- 
 sideration : White v. Banks, 21 Alab. 705. And so where one surety 
 buys in the principal's land, on the judgment against him, with his own 
 money, tj^e others cannot claim to participate in the benefit of the pur- 
 chase. Crompton v. Vasser, 19 Alab. 259. 
 
 A surety who has neglected to interpose a legal defence, as of the 
 Statute of Limitations, cannot claim contribution from the rest. Ford- 
 ham V. Wallis, 17 Jurist, 228. And, on the other hand, one is not en- 
 titled to charge the rest with fees expended in defending himself in 
 a suit brought against him as such surety. Comegys v. State Bank, 6 
 Ind. 857. 
 
 Although the surety's right of indemnification against his principal 
 was provable under the Bankrupt Act of 1841, though before he was 
 called upon to pay, and therefore discharged by the discharge of the 
 principal : Fulwood v. Bashfield, 14 Penn. St. 90 ; yet it is otherwise 
 with regard to his right of contribution against a co-surety. Dunn v. 
 Sparks, 1 Cart. (Ind.) 397.] 
 
 One of two sureties is entitled to take out execution on a joint judg- 
 ment against them, to compel contribution by his co-surety. Cuyler v. 
 Ensworth, 6 Paige C. K. 32 ; Croft v. Moore, 9 Watts, 451 ; yet see 
 Bank v. Adger, 2 Hill C. K. 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. K. 548 ; McDowell 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. McClanahan, 
 6 Gill. & J. 250 ; Taylor v. Savage, 12 Mass. 98, 102. 
 
 [The result of the cases on these points, is thus stated, in substance, 
 in the notes to Bering v. Winchelsea, ut sup. Where several persons, 
 
CONTRIBUTION AND EXONERATION. 575 
 
 if their liabilities have been created by distinct bonds, 
 the contribution is in proportion to the respective penal- 
 ties. 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. (/) 
 
 (/) Deering v. Earl of Winchelsea, 2 Bos. & P. 270 ; Coope v. Twy- 
 nam, T. & R. 426 ; Craythorne v. Swinburne, 14 Ves. 160. 
 
 or sets of persons, enter into engagements of suretyship, which are the 
 same in legal operation and effect, though at different times and by dif- 
 ferent instruments, for the same debt, and to and for the same persons, 
 the right of contribution exists among all ; and parol evidence is admis- 
 sible to contradict the legal result. See also Norton v. Coons, 2 Selden, 
 N. Y. 33 ; Bell v. Jasper, 2 Ired. Eq. 597. If, however, the obliga- 
 tions be for distinct things, with no relation to or operation on each other, 
 tliough they may be all founded on the same original indebtedness, there 
 is no contribution between the sureties. One who becomes surety in 
 the courae of legal proceedings against the principal has no right of con- 
 tribution against the original surety for the debt itself; on the contrary, 
 the latter is entitled to be subrogated to the creditor's rights against 
 him, as in the case of bail. Thus, the sureties of a sheriff, having been 
 compelled to pay for a default of his deputy, may recover the amount 
 , paid from the sureties of the deputy. Brinson v. Thomas, 2 Jones Eq. 
 414. Finally, one who becomes surety by a supplemental instrument, 
 on the understanding that he is to be liable only in default of the prin- 
 cipal and original sureties, cannot be called upon to contribute ; and on 
 the other hand may be subrogated to the creditor's rights against the 
 original sureties j 
 
 Fourth. A surety who has paid the whole debt must show the insol- 
 vency of the principal, to entitle him to contribution against his co- 
 surety : Pearson v. Duckham, 3 Litt. 885 ; Daniel v. Ballard, 2 Dana, 
 296; Allen v. Wood, 3 Ired. C. R. 386; Burrows v. MoWhann, 1 
 Desau. 409 ; or show that he has used due diligence, without effect, to 
 obtain reimbursement. McCormack v. Obannon, 3 Munf. 484. 
 
 Fifth. Hence, to a bill by a surety for contribution, the principal 
 debtor ought to be made a party. Rainey v. Yarborough, 2 Ired. C. 
 E. 249. 
 
576 ADAMS'S DOCTRINE OP EQUITY. 
 
 The equity for contribution between sureties is also ap- 
 plicable to underwriters or insurers, where the owner of 
 property 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 under- 
 writers, they may have a ratable contribution 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 indem- 
 nity. (7i) And he may also sue the creditor in equity for 
 an assignment of any mortgage or collateral security for 
 the debt, so that he may, as far as possible, be substi- 
 tuted in his place. But he cannot have an assignment 
 of the debt itself, for that is determined by his own pay- 
 ment, and a new debt is due from his principal to him- 
 *97m ^^^^-(0^ ^^^ same equity *which enables a 
 '- ^ surety, after payment by himself, to recover the 
 
 (^) Newby v. Eeed, 1 W. Bl. 416. 
 
 (/i) Toussaint v. Martinnant, 2 T. R. 100 ; Pownal v. Ferrand, 6 B. . 
 & C. 439. 
 
 (0 Copis V. Middleton, T. & R. 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 en- 
 titled 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. 
 R. 524; Erb's Appeal, 2 Penna. R. 296; McDowell v. Bank, 1 Bar- 
 ring. R. 369 ; Tatum v. Tatum, 1 Ired. C. R. 113; Lownds v. Chisholm, 
 2 McCord's C. R. 455 ; Perkins v. Kershaw, 1 Hill. C. R. 344; Foster 
 V. Trustees, 3 Ala. 302 ; Rhodes v. Crockett, 2 Yerg. 346 ; Wade v. 
 Green, 8 Humph. 547; Neimcewicz v. Gahn, 3 Paige, 614; Salmon v. 
 Clagett, 3 Bland. C. R. 173 ; Hampton v. Levy, 1 McCord C. R. 116; 
 Burk V. Chrisman, 3 B. Monr. 50 ; [Yard v. Patton, 13 Penn. St. 287. 
 
CONTRIBUTION AND EXONERATION. 577 
 
 amount from his principal, warrants him in filing a bill 
 to compel payment by the principal, when he has been 
 
 Actual assignment is not necessary in this country to subrogation, in the 
 case of a surety. Note to Dering v. Winehelsea, ut supr. ; Lloyd v. 
 Barr, 11 Penn. St. 48 ; Gossin v. Brown, Id. 531 ; Bailey v. Brown- 
 field, 20 Id. 45 ; Cottrell's App. 23 Penn. St. 294. Though it is so, 
 in the ease of a stranger, who pays the debt voluntarily. Sandford v. 
 McLean, 3 Paige, 117 ; Bant U. S. v. Winston, 2 Brock. 252. But 
 subrogation does not go on the ground of contract ; and, in general, 
 when any one is compelled to pay, where another is primary liable, sub- 
 rogation takes place by operation of law ; as in the case of a vendee who 
 pays a judgment against his vendor. Kyner v. Kyner, 6 Walts, 221.] 
 If he is surety in a bond, he is to be considered a bond creditor of the 
 obligor. Eppes v. Randolph, 2 Call, 103 ; [see also Thomson v. Palmer, 
 3 Rich. Eq. 139 ; note to Dering v. Winehelsea.] 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. 
 Huntingdon Bk. 1 Penna. R. 395 ; Fleming v. Beaver, 2 Rawle, 132 ; 
 Perkins v. Kershaw, 1 Hill. C. R. 344 ; Matthews v. Aiken, 1 Comst. 
 R. 595 ; Creager v. Brengle, 5 Har. & J. 234 ; Gadsden v. Lord, 1 
 Desau. 214; Cuyler v. Ensworth, 6 Paige, 32; Lathrop's Appeal,! 
 Penn. State R. 512; [Gossin v. Brown, 11 Penn. St. 531; Baily v. 
 Brownfield, 20 Id. 45. Even an entry of satisfaction on the judgment 
 against the principal, if without the consent of the surety, will not aflFect 
 the right of subrogation : Baily v. Brownfield.] But see Elwood v. 
 Deifendorf, 5 Barb. S. C. R. 398. [This rule appears to be general in 
 the United States, except in Alabama and North Carolina : Sanders v. 
 Watson, 14 Alab. 198 ; Brailey v. Sugg, 1 Dev. & Bat. Eq. 366; the 
 debt being considered there as extinguished at law, and the only right 
 of the surety, as that of a simple contract creditor. See note to Dering 
 V. Winehelsea, ut sup. 
 
 The surety is entitled, by the operation of the doctrine of subroga- 
 tion, to stand in all respects in the place of the creditor, and, therefore, 
 where the latter holds a mortgage for the debt, the right of the surety 
 to enforce the mortgage against the principal is not affected by the fact 
 of the debt being barred by the Statute. Ohio Life Ins. Co. v. Wini^ 
 
 37 
 
578 ADAMS'S DOCTRINE OF EQUITY. 
 
 brought under liability by the debt falling due, though 
 he may not have been actually sued. [Jc] ' 
 
 Another instance of contribution occurs where mort- 
 gages, renewed fines, or other incumbrances, require 
 discharge, and the property bound by them is not abso- 
 lutely vested in a single person ; e. g., where different 
 
 Qc) Mitf. 148 ; Antrobus v. Davidson, 3 Meriv. 569, 578. 
 
 4 Maryl. Ch. 254. And so a surety in a bond to the United States, is 
 entitled to avail himself (jf their prerogative preference against the other 
 creditors. U. 8. v. Hunter, 5 Mason, 62 ; 5 Peters, 174. The surety, 
 however, taking the rights of the creditors, cannot claim to stand in any 
 better position than he. Colvin v. Owen, 22 Alab. 782.] 
 
 * [As a general rule, the surety is not entitled to be subrogated, or to 
 claim contribution, until he has actually paid the debt : Eice v. Downing, 
 12 B. Monr. 44 ; Morrison's Adm. v. Tenn. Ins. Co. 3 Benn. Mo. 262; 
 Bennett v. Buchanan, 3 Porter's Indiana, 47 ; yet when his land is ex- 
 tended on execution, it is sufficient, though without payment. Lord v. 
 Staples, 8 Foster N. H. 448. Partial payments give no right of subro- 
 gation : Grove v. Brien, 1 Maryl. K. 439 ; Neptune Ins. Co. v. Dor- 
 sey, 3 Maryl. Oh. 334 ; Kyner v. Kyner, 6 Watts, 221 ; though the 
 surety acquires an interest in the securities to that extent. Grove v. 
 Brian, ut sup.J Where the principal debtor is insolvent, however, his 
 surety may proceed, 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, Bice Bq. 
 R. 275 ; Washington v. Tait, 3 Humph. R. 543 ; Stump v. Rogers, 1 
 Ham. Oh. 533 ; Ross v. Glore, 3 Dana, 193 ; Bishop v. Day, 13 Tt. 
 81 ; Hatcher v. Hatcher, 1 Rand. 53 ; Daniel v. Joyner, 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 ; McConnell v. Scott, 
 15 Ohio, 401 ; Laughlin v. Ferguson, 6 Dana, 111. [So, on the same 
 principle, where the principal is dead, the surety may file a bill qvxa 
 timet against the executor and the creditor, to compel the former to pay 
 the debt, and exonerate him. He may enforce against the estate any 
 lien of the creditor, and as a part of the creditor's rights, may file a bill 
 for the administration of the estate. The creditor, however, must be 
 made a party. Stephenson v. Taverners, 9 Gratt. 398.] 
 
CONTRIBUTION AND EXONERATION. 579 
 
 parcels of land are included in the same mortgage, and 
 are afterwards sold to different owners, or where a mort- 
 gaged 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 burden 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. (?)^ And although the 
 
 (T) White V. White, 9 Ves. 554 ; Bulwer v. Astley, 1 Ph. 422 ; Jones 
 V. Jones, 5 Hare, 440 ; Averall v. Wade, L1..& G. 252 ; 3 Sug. V. & 
 P. 435-6. 
 
 ' 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. 34 ; Morri.son v. Beckwith, 
 4 Monr. 76; Williams v. Craig, 2 Ed. C. R. 297. But where there 
 are several purchasers 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 the purchasers. " If, for instance, there be a 
 jadgment 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 insuflScient, then the acre sold to B. ought to supply the 
 deficiency in preference to the acre sold to A." Chancellor Kent, in 
 Clowes V. Dickenson, 5 Johns. C. R. 235. In that case A. purchased 
 a lot of land, which, with several others, was subject to a judgment. B. 
 afterwards 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 ap- 
 plication 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 
 
580 ADAMS'S DOCTEINE OF EQUITY. 
 
 creditor himself is not bound by this equity, but may pro- 
 ceed against whom he will, yet if he wilfully render its 
 
 owner of the land thus bound gives thereon several mortgages of differ- 
 ent date. Sohrjver 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 ; Gouverneur v. Lynch, 2 
 Paige, 300 ; Patty v. Pease, 8 Paige, 277 ; Gill v. Lyon et al. 1 Johns. C. 
 E. 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; Stanly v. Stocks, 1 Dev. C. R. 314, and note to p. 317; 
 Stoney v. Shultz, 1 Hill C. E. 464, 500 ; Thompson v. Murray, 2 Hill 
 C. R. 204 ; Conrad v. Harrison, 3 Leigh, 532 ; McClung v. Beirne, 10 
 Leigh E. 394 ; Nailer v. Stanley, 10 Ser. & Rawle, 450 ; Zeigler v. 
 Long, 2 Watts, 205; Pallen v. Bank, 1 Ireem. C. E. 419; Agric. Bk. 
 V, Pallen, 8 Sm. & Mar. 357 ; Coml. Bank v. Western E. Bank, 11 
 Ohio, 444 ; Cary v. Folsom, 14 Ohio, 365 ; Holden v. Pike, 24 Maine, 
 427 ; Gushing v. Ayer, 25 Maine, 383 ; Cowden's Estate, 1 Penna. 
 State R. 267 ; [Gate v Adams, 24 Verm. 70 ; Sheperd v. Adams, 32 
 Mainej 65 ; Jones v. Myrick, 8 Gratt. 180 ; Winters v. Henderson, 2 
 Halst. Ch. 31. J 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 application. See Stevens v. Cooper, 1 Johns. C. 
 R. 425 ; Cheesebrough v. Millard, 1 Johns. C. R. 409. Nor formerly 
 in Virginia. 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 Parkman v. Welch, 
 19 Pick. 231, 238 ; Green v. Ramage, 18 Ohio, 428. [The rule that 
 purchasers are liable to contribute in the inverse order of their purchases, 
 to the discharge of a paramount incumbrance, is not applicable, however, 
 where they take expressly subject to the incumbrance, and it forms a 
 part of the purchase-money. Therefore, in Pennsylvania, where by star 
 tute, a mortgage is not discharged at sheriff's sale, except under certain 
 circumstances, successive sheriff's vendees of different tracts bound by 
 the same mortgage, are bound to contribute in proportion to the value 
 of their interests without regard to priority. Carpenter v. Koons, 20 
 Penn. St. 222. 
 
 In Sheperd v. Adams, 32 Maine, 65, it was held that the only re- 
 medy, of the subsequent purchaser, was in equity, and that no action of 
 assumpsit could be brought in such case. 
 
CONTRIBUTION AND EXONERATION. 581 
 
 enforcement impossible, as by discharging one of several 
 coparceners, he cannot proceed for the whole debt against 
 the others, bat at the most can only require from them 
 their respective shares. (m)' If the burden has been al- 
 ready discharged by one of the parties liable, he will be 
 entitled to contribution from the rest, unless he has 
 
 (m) Stirling v. Forrester, 3 Bligh. 0. S. 575, 590. 
 
 The rule will not be so applied as to affect the statutory priority of the 
 UQited States. U. S. v. Duncan, 12 lUin. 523.] 
 
 Justice Story, in his Corns. Eq. Jurisp. sect. 1233, A., refers to Eng- 
 lish authorities in support of the position, that even in the case of suc- 
 cessive purchasers or incumbrancers, the original incumbrance ought to 
 be apportioned ratably among them. But see the error of his reference 
 pointed out by the late Judge Kennedy in Cowden's Estate, ubi supra. 
 [The learned American editor of the Leading Cases in Equity, in his 
 note to Aldrieh v. Cooper, 2 Lead. Cas. Eq. p. i, 214, agrees with Judge 
 Story in his strictures on the rule. See that note for a discussion of the 
 subject.] 
 
 ' When a judgment or a mortgage is a lien on several lots of land 
 owned by different persons, and the judgment creditor or mortgagee re- 
 leases one of the subsequent purchasers, his lien upon the remaining lots 
 will be diminished by the value of the lot released. Stevens v. Cooper, 
 1 John. C. R. 425 ; James v. Hubbard, 1 Paige, 228 ; Paxton v. Ear- 
 ner, 11 Penna. State R. 312 ; Guion v. Knapp, 6 Paige, 35 ; [Jones v. 
 Myrick, 8 Grratt. 180. So, if after a bill filed for subrogation against a 
 creditor of two funds by the creditors of the doubly charged estate, the 
 former releases the other fund to the debtor, though in pursuance of a 
 previous agreement, he will be compelled to account for its value, and 
 will be considered as paid to that extent. Fassett v. Traber, 20 Ohio, 
 540. But in order to make the general rule applicable, the creditor 
 must have actual notice of the prior conveyances. Cheesebrough v. 
 Millard, 1 John. Ch. 409; Guion v. Knapp, 6 Paige, 35. Their regis- 
 tration is not notice, because it cannot appear in the line of title, along 
 which the creditor is bound to look. Stuyvesant v. Hone, 1 Sandf. Ch. 
 419; Taylor v. Maris, 5 Rawle, 51.] As between the original parties, 
 the rule, of course, does not hold : any part of the mortgaged premises 
 IS bound for the payment of the whole debt. Coutant v. Servoss, 3 
 
 b. S. C. R, 128. See Patty v. Pease, 8 Paige, 277. 
 
582 ADAMS'S DOCTRINE OF EQUITT. 
 
 shown an intention to exonerate the estate. But if his 
 interest is that of tenant in tail in possession, and conse- 
 quently convertible at his option into an absolute estate, 
 a presumption arises that he so intended, (ti) 
 
 The doctrine of general average is another illustration 
 of the equity for contribution, and is the last which will 
 be here noticed. The circumstances under which this 
 equity *arises are where a ship and cargo are in 
 L -• imminent peril, and a 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 it- 
 self 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 necessity of the 
 ship. In all these cases the impending danger is com- 
 mon 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 sacrifice, the 
 parties interested in the ship, her freight, and the mer- 
 chandise on board, must make good ratable shares of the 
 loss, proportioned to the value which their own goods 
 and the goods sacrificed would have borne, after deduct- 
 ing 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 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 con- 
 tribution are generally settled by arbitration, but the par- 
 
 (n) Wigsell V. Wigsell, 2 S. & S. 364 ; Burrell v. Bgremont, 7 Bea, 
 205 ; Faulkner v. Daniel, 3 Hare, 199, 217. 
 
OF MARSHALLING. 583 
 
 ties 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 paramount charge be by 
 way of mortgage, the only resource for the puisne mort- 
 gagee is to redeem it, and then to tack it to his own 
 debt ; but if it is only a charge payable out of the pro- 
 duce of the estate, and not conferring on the paramount 
 creditor a right to *foreclose, an equity arises for p^n-g-, 
 marshalling the security so that both creditors '- ^ 
 may, if possible, be paid in full. {pY 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 Merc. Law, 292. 
 
 (p) Aldrich v. Cooper, 8 Ves. 382; Titley v. Davies, 2 B. C. C. 398, 
 399. 
 
 ' Sturgess v. Gary, 2 Curtis C. C. 59. 
 
 ' 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 com- 
 pelled first to exhaust the subject of his exclusive lien, and will be per- 
 mitted to resort to the other only for the deficiency, is well established 
 in this country. Piatt v. St. Clair, 6 Ham. Oh. E. 233 ; Kussell v. 
 Howard, 2 McLean, 489 ; Findlay's Exr. v. U. S. Bk. 2 McLean, 44 ; 
 N. Y. Steamboat Co. v. N. Jersey Co. 1 Hopkins, 460 ; Evertson v. 
 Booth, 19 Johns. R. 486 ; Pallen v. Agric. Bk. 1 Freem. C. R. 419, 
 424; Kendall v. The N. England Co. 13 Conn. 394-5; Lodwick v. 
 Johnson, Wright's Oh. R. 498 ; Thompson v. Murray, 2 Hill C. R. 
 210 ; Miami Co. v. U. S. Bank, Wright's Oh. R. 249 ; Williams v. 
 Washington, 1 Dev. C. R. 137 ; Dorr v. Shaw, 4 John. C. R, 17 ; 
 Trowbridge v. Harleston, Walk. Ch. H. 185 ; [Goss v. Lester, 1 Wise. 
 43.] 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 
 
584 ADAMS'S DOCTRINE OF EQUITY. 
 
 sonal one against the debtor, and does not bind the para- 
 mount creditor, nor the debtor's alienee for value. 
 
 realizing it is prompt and efficient. Briggs v. The Planters' Bank, 
 Freem. C. E. 574 ; Dorr v. Shaw, 5 John. C. S. 17. See also cases 
 cited, note 2, p. 270, supra, the distinction there illustrated being but 
 a corollary of this doctrine. 
 
 [Though the proposition, that a creditor of two funds will be restrained 
 from proceeding against the doubly charged fund, till he has exhausted 
 the other, is often repeated in the decisions, it has been acted on, in 
 general, only where both funds were actually within the control of the 
 Court ; and the usual course is merely to compel him, while proceeding 
 against the doubly charged fund, to place his remedies against the other 
 at the disposal of the disappointed creditors. The equity of the latter is 
 not, indeed, against the double creditor at all, but only against the com- 
 mon debtor, that he should not be permitted to get back the fund not 
 resorted to, freed from its liabilities, on account of the accident of the 
 creditor's recourse to the other. This end can be obtained quite as well 
 by subrogation, as through marshalling by actual restraint ; and it is, 
 therefore, very difficult to understand how equity can interfere with the 
 legal rights of the double creditor, on an equity which is no greater than 
 his own, and which can be equally protected in another way. In several 
 cases such interference has consequently been refused. Ramsay's App. 
 2 Watts, 228 ; Evans v. Duncan, 4 Id. 24 ; Neff's App. 9 Watts & S. 
 36 ; Shunk's App. 2 Penn. St. 304 ; Cornish v. Willson, 6 Gill, 299 ; 
 Post V. Mackall, 3 Bland, 486; U. S. v. Duncan, 12 Illin. 523; Chap- 
 man V. Hamilton, 19 Alab. 121 ; Knowles v. Lawton, 18 Geo. 476. 
 See also Lafarge Ins. Co. v. Bell, 22 Barb. 34. In others, the right of 
 restraint has been confined to cases where, to compel a resort to the 
 singly charged fund, would not be productive of any additional risk, in- 
 jury, or delay to the double creditor. Brinkerhoff v. Marvin, 5 Johns. 
 Ch. 320 ; Evertson v. Booth, 19 Johns. 486 ; see James v. Hubbard, 
 1 Paige, 228 ; Morrison v. Kurtz, 15 111. 193. In N. Y. Steamboat 
 Co. V. The N. J. Co, 1 Hopkins, 460 ; Thompson v. Murray, 2 Hill Eq. 
 204 ; Pallen v. Agricultural Bank, 1 Freeman Ch. 419, 8 Sm. & Marsh. 
 357, however, the doctrine has been carried to even a greater length. 
 It has also been applied, in New York, without hesitation, and perhaps 
 with more propriety, to the case of a creditor with collateral security; 
 claiming upon a fund assigned for the benefit of creditors : Besley v. 
 Lawrence, 11 Paige, 581; though the contrary is now established in 
 
OF MARSHALLING. 585 
 
 The equity is not binding on the paramount creditor, 
 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 acci- 
 dental resort of the paramount creditor to the doubly 
 charged estate, and the consequent exhaustion of that 
 security, shall not enable him to get back the second 
 estate, discharged of both debts. If, therefore, the para- 
 mount creditor resorts to the doubly charged estate, the 
 puisne creditor 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 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 inde- 
 pendent equity against the creditor, but a mere incident 
 of his equity against their common debtor ; and, there- 
 fore, if the paramount 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 
 
 Pennsylvania. Morris v. Olwine, 22 Penn. St. 441 ; Kittera's Est. 17 
 Penn. St. 413. This subject is discussed in the note to Aldrich v. 
 Cooper, 2 Lead. Gas. Eq. 230, 1st Am. Ed.] 
 
 " Bank of Kentucky v. Vance, 4 Litt. 168 ; see also Eddy v. Traver, 
 6 Paige, 521 ; Hawley v. Mancius, 7 John. C. K. 174 ; Hunt v. Town- 
 send, 4 Sandf. C. E. 510 ; Kamsay's Appeal, 2 Watts, 228 ; Cheese- 
 brough V. Millard, 1 John. C. E. 409 ; Hastings's Case, 10 Watts, 303 ; 
 Averill V. Loucks, 6 Barb. S. C. E. 470; Besley v. Lawrence, 11 Paige, 
 581; [Hunt V. Townsend, 4 Sand. Ch. 510; Fassett v. Traber, 20 Ohio, 
 540; Dunn v. Olney, 14 Penn. St. 220; U. S. Ins. Co. v. Shrlver, 3 
 Maryl. Ch. 382 ; Nelson v. Dunn, 15 Alab. 517. But this rule will not 
 be applied where it will work injustice to the creditors of the other estate. 
 McGinnis's App. 16 Penn. St. 445. See U. S. v. Duncan, 12 Illin. 
 523.] 
 
586 ADAMS'S DOCTRINE OF EQUITY. 
 
 to one rather than to the other, or to alter the conse- 
 quences of the election which may be made. (5)^ 
 
 The principle which refuses interference as against 
 the creditor was strongly tested in a case arising out of 
 the rebellion of the American Colonies. Subsequently 
 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 who had favored the 
 rebellion. *should be paid out of the confiscated 
 L J estates ; so that any creditor coming within the 
 tenor 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 
 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 circumstances as 
 these he had acquired a claim on an independent fund, 
 from which, if rejected by him, his debtor could reap no 
 advantage. The claim was disallowed, on the ground 
 
 (q) Greenwood v. Taylor, 1 E. & M. 185 ; Mason v. Bogg, 2 M. & 
 
 C. 443 ; Ex parte Kendal, 17 Ves. 514 ; Ex parte Field, 3 M. D. & 
 
 D. 95. 
 
 1 See Ayres v. Husted, 15 Conn. R. 504 ; [Sterling v. Brightbill, 5 
 Watts, 229 ; Ebenhardt's App. 8 Watts & S. 327 ; see remarks on this 
 case, in Dunn v. Olney, 14 Penn. St. 219. But if, in such case, one of 
 the debtors, or his estate, on general equity principles, or by agreement 
 of the parties, is primarily liable, the separate creditors of the other, dis- 
 appointed by the joint creditors, have a right to subrogation. Gearhart 
 V. Jordan, 11 Penn. St. 331; Dunn v. Olney, 14 Id. 219; Neff v. 
 3Iiller, 8 Id. 347.] 
 
OF MARSHALLING. 587 
 
 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 debtor's 
 alienee for value, notwithstanding that he may 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 creditor to take an express collateral 
 charge raises a presumption that he meant to leave the 
 equity defeasible, 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 conceals its exist- 
 ence. For then a purchaser taking with notice of the 
 covenant or concealment will be bound by the same 
 equity as the debtor himself (s) 
 
 *The equities of contribution, exoneration, and pj-nr, >-, 
 marshalling, are applied, as already noticed, in L -• 
 the administration of assets, to rectify disorders 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 
 
 (r) Wright v. Simpson, 6 Ves. 714. 
 
 (s) Averall v. Wade, LI. & G. 252; Hamilton v. Koyse, 2 Sch. & L. 
 315, commented on in LI. & Gr. 263 ; Barnes v. Racster, 1 N. C. C. 
 401 ; Bugden v. Bignold, 2 N. C. C. 377. 
 
588 Adams's doctrine of equity. 
 
 lines of descent, or are given to several devisees, all the 
 heirs in the one case, and JlU 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, 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, 
 
 ' When lands held by several devisees in the same will, are charged 
 in equity to satisfy a bond debt of the devisor, tlie decree should be 
 against the lands of all the devisees, or the money received or claimed 
 in lieu thereof, in ratable 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. E. 148. As to contribution among co-heirs, see Schermer- 
 horn V. Barhjdt, 9 Paige, 28. [See, ante, 263, note.J 
 
 ^ See, in agreement with the text, Livingston v. Newkirk, 3 Johns. 
 C. R. 312, 320; Stires v. Stires, 1 Halsted's C. R. 224; Adams v. 
 Brackett, 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 of blended 
 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 testator died intestate, is exonerated until the other is 
 exhausted. Hall v. Hall, 2 McCord's C. R. 269, 302. See also Has- 
 sanclever v. Tucker, 2 Binn. R. 525. [See, ante, 263, note.] 
 
OF MAESHALLING. 589 
 
 whether as between the respective 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 administration 
 suits, where debts or legacies are charged, some on seve- 
 ral 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 
 *favor of simple contract creditors, where the f-o-o^r-, 
 personalty, which then constituted the only fund, L J 
 
 (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 personal estate, 
 except as against specific and pecuniary legatees. See Torr's Estate, 2 
 Eawie 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 incum- 
 brance was not the primary personal debt of the decedent : then the land 
 is first chargeable, and the heir or devisee cannot claim exoneration, even 
 though there were a personal covenant by the decedent with the mort- 
 gagor to pay the debt. Cumberland v. Codrington, 3 Johns. C. R. 
 229 ; Mitchell v. Mitchell, 3 Maryl. Ch. 73. See also note, p. 264-5, 
 supra. 
 
 [The right of exoneration by the holder of an equity of redemption, 
 as against the personal estate, accrues only on the administration of the 
 assets, and need not be asserted till there are assets to be administered. 
 Lapse of time, therefore, where for any reason, the administration of an 
 estate has been impossible, will not affect the right. Mellersh v. Bridger, 
 17 Jurist, 908, 
 
 Where a testator devises several estates, charged generally with the 
 payment of debts, to different persons, and afterwards mortgages one, 
 the devisee of the mortgaged estate is entitled to contribution from the 
 others. Middleton v. Middleton, 15 Beav. 450. But, in general, the 
 rule is, that a devisee subject to a mortgage, must bear the whole bur- 
 den, as regards other devisees. Mason's Est. 1 Pars. Bq. 129; S. C. 4 
 Penn. St. 497.] 
 
590 ADAMS'S DOCTRINE OP EQUITY. 
 
 had been wholly or partially exhausted by superior cre- 
 ditors, who might have resorted to the real estate ; viz. 
 by specialty creditors, by mortgagees, or by vendors 
 claiming a lien for unpaid purchase-money. (m)i But the 
 necessity for this course has ceased under the late sta- 
 tute, making real estate, whether freehold or copyhold 
 directly liable as assets for simple contract debts, (v) The 
 equity, however, is still applicable in favor 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 pecuniary lega- 
 cies is different ; for they are not gifts of any specific 
 thing, which may be set apart until its turn arrives, but 
 
 («) Aldrioh v. Cooper, 8 Ves. 382, 389 ; Selby v. Selby, 4 Russ. 
 336. 
 
 (w) 3 & 4 Wm. 4, c. 104. 
 
 1 See Alston v. Munford, 1 Brock. R. 266 ; Haydon v. Goode, 4 
 Hen. & Munf. 460; [Cralle v. Meem, 8 Gratt. 496. Where specialty 
 debts of a deceased person have been paid out of his personal estate, 
 which at the time was sufficient also to pay his simple contract debts, 
 and the executor subsequently commits a devastavit, which renders the 
 personal estate insufficient to pay the simple contract creditors, they are 
 entitled to be paid out of the real estate of the debtor, to the extent to 
 which the personal estate havS been onerated by the specialty creditors. 
 Ellard v. Cooper, 1 Irish L. & Eq. N. S. 376 ; (Chancellor.) In the 
 same case it was held that simple contract creditors, who ha'se, in con- 
 sequence of the payment of specialty creditors out of the personal es- 
 tate of the deceased debtor, acquired a right of marshalling his real 
 estate, are not barred under the Statute of Limitations by less than 
 twenty years. 
 
 In Fordham v. Wallis, 17 Jurist, 228, however, it was held that as 
 simple contract creditors have now a right to the real assets in England, 
 the doctrine of marshalling, for whatever other purpose now kept alive 
 as to them, would not be applied merely for the purpose of giving them 
 a longer period of limitation, by substituting them in the place of spe- 
 cialty creditors.] . 
 
OF MARSHALLIKG. 591 
 
 * 
 
 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 before 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 ex- 
 haustion of the personal estate will warrant marshalling 
 in favor of legatees ; but such marshalling can only be 
 directed against real assets descended, land devised for 
 or charged with payment of debts, and land devised 
 subject to a mortgage.' It cannot be directed as against 
 other land devised or as against specific legatees, (w)^ 
 
 (a)) Wythe v. Henniker, 2 M. & K. 635 ; Mirehouse v. Scaife, 2 M. 
 & C. 695 ; Sproule v. Prior, 8 Sim. 189 ; Strickland v. Strickland, 10 
 Sim. 374; 3 Sug. V. & P. c. xviii, s. 2. [See Patterson v. Scott, 1 De 
 a. Macn. & G. 531. J 
 
 ' Eeal assets descended will not be marshalled in aid of either a general 
 or residuary legacy. Walker's Estate, 3 Kawle, 229. See also Hays v. 
 Jackson, 6 Mass. 149. Aliter, if the legacy is pecuniary or specific. 
 MoUan 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 residuary legacies, or of other 
 land devised for the payment of debts." To the same effect are Brown 
 V. James, 3 Strob. Eq. R. 24, 26, and Warley v. Warley, 1 Bailey Eq. 
 E. 397. [See on this subject note, ante, p. 263.] 
 
 ^ Livingston v. Livingston, 3 John. C. R. 148, 158 ; McCampbell 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 
 
592 ADAMS'S DOCTRINE OF EQUITY. 
 
 The manner in which the exhaustion is caused is gene- 
 rally by payment *of creditors, but it may be 
 L -■ 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 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 mar- 
 shalling, (x) 
 
 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 ad- 
 ministered in equity, and does not, therefore, give the 
 creditors an election between the funds, but compels 
 them to exhaust the personalty, before they can have 
 recourse to the land.(?/)' 
 
 (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. 
 
 contribution against the devisees of the realty, was upheld in Chase v. 
 Lockerman, 11 Gill. & J. 185. But other decisions exempt the devi- 
 sees altogether, and render the specific legatees first liable. See Miller 
 V. Harwell, 3 Murphey's E. 194 ; Warley v. Warley, 1 Bailey Eq. K. 
 397. [See on this subject note, ante, p. 263.] 
 
 ' [Where there are two classes of legatees, one having a charge on 
 real estate, and the other having no such charge, and the personal estate 
 is not sufficient to pay both, equity will marshal the assets so as to throw 
 the former class upon the real estate. The rule is the same where there 
 is only one legacy charged upon land ; and it is not material that the 
 charge is made only in case the personal estate shall be insufficient. 
 Scales v. Collins, 9 Hare, 656.] 
 
 ^ The correctness of this view is questioned. See White and Tudor s 
 
OP MAESHALLING. 593 
 
 An attempt has been made to apply the equity of mar- 
 shalling to remedy the avoidance of charitable bequests, 
 where such bequests have been made payable out of the 
 general assets, instead of being exclusively charged on 
 the pure personalty, such as money or stock. A chari- 
 table 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 there- 
 fore been made to throw the other legacies on that por- 
 tion 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 appro- 
 priated the legitimate fund, but that the fund given is 
 in part illegal. The Court, therefore, will not, either 
 directly or indirectly, aid the gift, but *will ap- 
 propriate the estate as if no legal objection ex- L -" 
 isted, by charging the legacy on both funds in propor- 
 tion to their values ; and will declare so much of the 
 charitable legacy to fail, as would in that way be pay- 
 able out of the prohibited fund.(z)i 
 
 (z) Hobson V. Blackburn, 1 K. 273 ; Philanthropic Society v. Kemp, 
 i Bea. 581 ; Sturge v. Dimsdale, 6 Bea. 462. 
 
 Leading Cas. Eq. vol. ii, part 1, p. 68, [and it is now settled that lega- 
 tees are entitled to marshalling, as well where the exhaustion is caused 
 by the simple contract, as by the specialty creditors. Tombs v. Eoch, 
 2 Coll. 499; Fleming v. Buchanan, 3 De G. M. & G. 976 ; Patterson 
 V. Scott, 1 De G. Macn. & Gord. 531.J 
 
 ' See, accord, Wright v. Trustees of the M. E. Church, 1 Hoff. C. K. 
 202. [But where it is clear that the testator intended that charity 
 legacies should be paid out of the pure personalty, the assets will he- 
 marshalled, so as to throw the other legacies on the personalty savoring, 
 of realty. Robinson v. Geldard, 3 Macn. & Gord. 735.J 
 
 38 
 
594 ADAMS'S DOCTRINE OF EQUITY. 
 
 [*278] *CHAPTER VI. 
 
 OF INFANCY, IDIOCY, AND LUNACY. 
 
 The last equity which 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 jurisdiction over trusts. And if property be 
 vested in a trustee, the right of the guardian to the 
 general custody of the estate does not extend to the pro- 
 perty so vested, so as to exonerate the trustee from see- 
 ing to its safety. 
 
 The guardianship of the person, during the father's 
 lifetime, resides in him ; and he is entitled in his paren- 
 tal right to the custody and education of the infant, but 
 not to the custody of his estate. 
 
 The guardianship of the estate during the father's life- 
 
OF INFANCY. 595 
 
 time, and of both person and estate after his death, 
 *belonged at common law, to the guardian in r^nrrq-i 
 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 in- 
 fant or otherwise, prepared to succeed. With respect to 
 the property of the ward, the right of guardian in socage 
 extends to all descended hereditaments, 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 per- 
 sonally for the ward's benefit. The extent of his autho- 
 rity over the personal estate is doubtful ; but Mr. Har- 
 grave 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.^ 
 
 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 ope- 
 
 ' " The guardianship in socage may be considered as gone into dis- 
 use ; 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 merged in the more durable title of guardian by nature." 
 Ibid. pp. 220, 221. 
 
596 Adams's doctrine of equity. 
 
 ration ; viz., 1. By nature ; which, like that in socage 
 is an incident of tenure. This guardianship is of an heir 
 apparent only, and is vested in the ancestor whose heir 
 the infant is. It continues till twenty-one, and is con- 
 fined to the person. 2. For nurture ; which is of all 
 the children, and not only of the heir apparent It 
 belongs exclusively 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 
 aldermen ; 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 Richard 2 *to the lands and goods. 4. By 
 ^ -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 four- 
 teen, and confers on the guardian by election the same 
 office and employment which was previously in the 
 guardian in socage. And it is said by Lord Coke, that 
 in certain cases the same thing may be' done by an in- 
 fant 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) Before that 
 statute a father, tenant in socage, could not have dis- 
 posed 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 
 
 (a) 12 Car. 2, c. 24, s. 8. 
 
OF INFANCY. 597 
 
 good against all persons claiming as guardians in socage 
 or otherwise.^ The authority of the statute guardian 
 continues till twenty-one, and he is entitled to the cus- 
 tody 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 respect of 
 the person, so as to discharge from illegal custody, or to 
 protect from cruelty or ill-usage by the legal guardian, 
 
 (b) See generally as to Guardianship, Hargr. on Co. Litt. 87 b, n. 
 59 to 73; 2 Steph. 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. E. C. vol. i, 240; Purdon's Penna. 
 Dig. title Wills; Chase's Stat. Ohio, vol. iii, 1788. A father only, can 
 appoint a tes.tamentary guardian of his children. The power docs not 
 extend to a grandfather. Hoyt v. Hilton, 2 Ed. 0. 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. Van Houten's case, 2 
 Green C. R. 220. Bat 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. [The testamentary guardian 
 has the same right to direct the religious education of the ward, as the 
 father. Re Browne, 2 Irish Ch. 151. In Pennsylvania, under the Act 
 of 1833, a devise of the guardianship of a minor by any other than the 
 father is void. But a devise by a grandfather, or other person, to a 
 child, on condition that a person named in the will shall be guardian, is 
 good ; and a refusal by the father to permit such guardianship, is a for- 
 feiture of the estate. An acceptance, however, by the father, of a bene- 
 fit, under the will, estops him from objecting afterwards. In all such 
 cases, such a construction must be put upon the will, as may be most 
 beneficial to the children, without exposing the estate to forfeiture, or 
 interfering with the intention of the testator ; and therefore where a 
 stranger is thus appointed guardian, but the guardianship is not ex- 
 pressly extended to the person, it will be confined to the estate. Van- 
 artsdalen v. Vanartsdalen, 14 Penn. St. 384.] 
 
598 Adams's doctrine of equity. 
 
 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 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 respect of 
 the estate, so as to secure a due accounting by the person 
 j.^ ^ *in possession, is by action of account at law, or 
 L -I suit for account in equity. As against the guar- 
 dian in socage or the statute guardian, either of these 
 remedies may be pursued ; and also as against any per- 
 son who, not being guardian, has occupied or taken the 
 profits of the land of an infant tenant in socage.^ If the 
 
 (c) E. V. Greenhill, 4 A. & E. 624 ; Lyons v. Blenkin, Jac. 245, 
 254. 
 
 ' When an infant is brought up on a habeas corpus, the Chancellor 
 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 competent to form and declare 
 an election, will allow it to make such election. Matter of WoUstone- 
 craft, 4 Johns. C. E. 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 ; [Armstrong v. Stone, 9 Gratt. 102 ; see People v. Wilcox, 
 22 Barb. 178.] 
 
 ^ Any stranger or wrong-doer, who interferes with the property of a 
 minor, and receives the rents and profits thereof, may be considered 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 ; [Van Epps v. Van Deuson, 4 Paige, 64; 
 Chaney v. Smallweed, 1 Gill, 367 ; Wyllie v. Ellice, 6 Hare, 505 ; Le- 
 nox V. Notrebe, 1 Hempst. 225 ; Bldmfield v. Eyre, 8 Beav. 250 ; and, 
 as a fiduciary, cannot set up the Statute of Limitations. Goodhue v. 
 Barnwell, ut sup. ; Thomas v. Thomas, 25 L. J. Ch. 159.] But an 
 executor, having rightful possession of the property of the infant, cannot 
 be treated as a guardian without his consent. Bibb v. McKinley, 9 
 Porter, 636. 
 
OF INFANCY. 599 
 
 infant be not tenant in socage, the intruder is not liable 
 to account at law, but will be compelled to account in 
 equity, (c?) 
 
 The means of protection already enumerated, although 
 available for the prevention of positive misconduct, are 
 inadequate to secure a proper education of the infant, or 
 a prudent management of his estate. And for these pur- 
 poses there is a prerogative in the Crown, as parens pa- 
 trice, to be exercised by the Court of Chancery, for pro- 
 tection of any infant residing either temporarily or per- 
 manently within its jurisdiction.' The possession of pro- 
 perty is not essential to the existence of this authority, 
 
 {d) Chamb. 518, 521 ; Blomfield v. Eyre, 8 Bea. 250. 
 
 ' The several kinds of guardian have, in this country, become essen- 
 tially superseded in practice by the Chancery guardians, and guardians 
 appointed by the Surrogates, Ordinary, or Orphans' Courts, Courts of 
 Probate, or other Courts of similar character, having jurisdiction of tes- 
 tamentary matters, in the various States. And still, when there exists 
 a Court of Chancery, the general jurisdiction over every guardian resides 
 there. A testamentary or statute guardian is as much under the super- 
 intendence 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 ; [Preston v. Dunn, 25 Alab. 
 507.] 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. E. 314 ; [People v. Wilcox, 22 Barb. 
 178.] Where an infant under twelve years of age was married, and 
 immediately thereafter declared her dissent to the marriage, upon appli- 
 (iation 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. Roff, 3 John. C. R. 49. 
 
 [See, on the subject of the Jurisdiction of Chancery over Infants, 
 notes to Eyre v. Countess of Shaftesbury, 2 Lead. Cas. Eq. p. ii, 131, 
 1st Am. Ed.] 
 
600 ADAMS'S DOCTRINE OF EQUITY. 
 
 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) 
 
 The mode of calling the jurisdiction into operation is 
 by filing a bill, to which the infant is a party. This con- 
 stitutes him a ward of Court ; and, after he is onQO a 
 ward, any subsequent matter may be determined on 
 petition or motion. If the infant is in illegal custody, 
 an order for his delivery to the proper 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 trustees, or if there be complicated accounts, a bill is 
 necessary, {g) 
 
 The principal incidents of wardship are three in num- 
 r*oQOT ^^^ ' *^^^" '^^^ ward must be educated under 
 ^ ^ the Court's superintendence ; his estate must be 
 managed and applied under the like superintendence ; 
 and his marriage must be with ^le sanction of the Court. 
 
 1. The ward must be educated under the superinten- 
 dence 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 jurisdiction of the 
 Court without its leave.' But leave will not be refused, 
 
 (e) De Manneville v. De Manneville, 10 Ves. 52-63 ; Wellesley v. 
 Wellesley, 2 Bl. N. S. 124 ; Johnstone v. Beattie, 10 CI. & F. 42; Ee 
 Spence, 2 Ph. 247. 
 
 (/) Ke Spence, 2 Ph. 247. {g) 2 Dan. C. P. ch. 39. 
 
 » [In Koohford v. Hackman, 1 Kay, 308, a ward of Court Vfho had 
 enlisted in the East India service, was ordered to be discharged on appli- 
 cation of his guardian, and notice to the East India Company. See also 
 Dawson V. Jay, 3 De G. M. & G. 764.] 
 
OF IKFANCT. 601 
 
 if shown to be for his benefit, provided due security be 
 given for his return, and for acquainting the Court with 
 his situation and progress, (h) 
 
 The manner in which the superintendence is exer- 
 cised differs according as there is or is not a subsisting 
 guardian. 
 
 If the father is dead, and there is no legal or statutory 
 guardian, or none who is able or willing to act, a guar- 
 dian 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 especially 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 resi- 
 dent beyond the jurisdiction, he will not for that reason 
 be displaced from his office ; but it will be an induce- 
 ment to join some other person in the guardianship, who 
 may be responsible to the Court, (yfc)^ 
 
 (h) Campbell v. Mackay, 2 M. & C. 31 ; Johnstone v. Beattie, 10 
 CI. & P. 42 J Stephens v. James, 1 M. & K. 627, [see Dawson t. Jay, 
 3 De a. Macn. & G. 764.J 
 
 (i) Talbot V. Shrewsbury, 4 M. & C. 673 ; Witty v. Marshall, 1 N. 
 C. C. 68. 
 
 (i) Johnstone v. Beattie, 10 CI. & P. 42 ; Wellesley v. Beaufort, 2 
 Euss. 1, 18. [See Lockwood v. Fenton, 1 Sm. & Giff. 73.] 
 
 '■ 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. 
 
 ' [It is generally held in the United States that the rights, powers, 
 and duties of a guardian, like those of an administrator, are entirely 
 looal, and cannot be exercised in other States. Morrell v. Dickey, 1 
 John. Ch. 169 ; Sabin v. Gilman, 1 N. H. 193 ; Armstrong v. Lear, 
 12 Wheat. 156; 2 Kent's Comm. 227, n.; see also. Coxy. Williamson, 
 
602 ADAMS'S DOCTRINE OP EQUITY, 
 
 If there is a father or legal guardian within the juris- 
 diction able and willing to act, the matter will be left to 
 his discretion, subject to the general control of the Court.' 
 But if there be a difference of opinion among several 
 guardians, a scheme will be directed. (Z) 
 
 *If the father or legal guardian has volun- 
 ■- -I tarily relinquished his right,^ or has forfeited it 
 
 (0 Campbell v. Mackay, 2 M. & C. 31, 36. 
 
 11 Alab. 343 ; but see, in South Carolina, Ex parte Smith, 1 Hill Eq. 
 140 ; Ex parte Heard, 2 Id. 54. In some of the States, however, there 
 are statutory provisions -which place foreign and domestic guardians, to 
 a greater or less degree, on the same footing. In the recent case of 
 Re Dawson, 2 Smales & Gifford, 199, it was held in England that the 
 order of a Surrogate's Court in New York, appointing a guardian to an 
 infant, the child of a British subject, would be recognized in the Court 
 of Chancery with the respect due by the comity of nations; but that it 
 did not confer on the appointee the character of guardian, there. This 
 was the case of a child whose father had been a native of Great Britain, 
 but naturalized in the United States, where he was also domiciled. The 
 maternal aunt had been appointed guardian, in New York, where the 
 infant's property was situated. The child was brought to England by 
 a paternal aunt, with whom it resided ; and the desire of the guardian 
 to compel its return gave rise to the question. In a subsequent branch 
 of the case, Dawson v. Jay, 3 De G. M. & G. 764, the Lord Chancellor 
 held, that the Court could not compel the removal of an infant ward out 
 of the jurisdiction, and therefore refused an application by the guardian 
 to obtain custody of the child for that purpose. See, also, Lockwood v. 
 Fenton, 1 Sm. & Giff. 73. 
 
 Although a guardian resides out of the State and has no property 
 within it, equity has jurisdiction to hold him to account, and compel 
 him and his sureties to pay such balance as may be found against him. 
 Pratt v. Wright, 13 Grattan, 175.] 
 
 * The Court will not discharge a guardian from his trust, on his peti- 
 tion, unless for good reasons shown. Ex parte Crumb, 2 Johns. C. B. 
 439. See also. Ex parte De Graffenreid, 1 Harp. Eq. R. 107. 
 
 ' [See, however, Reg. v. Smith, 1 Bail. Ct. Cas. 132; 16 Eng. &Eq. 
 221, and note ; People v. Mercein, 3 Hill, 399 ; Mayne v. Baldwin, 1 
 Halst. Ch. 454.] 
 
OF INFANCY. 603 
 
 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. In- 
 stances 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 expressly 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 benefit under it. But 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, (m) Instances of forfeiture 
 by misconduct occur where the father or guardian incul- 
 cates vicious and irreligious principles, or conduct, in- 
 consistent 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, (n)^ 
 
 (w) Lyons v. Blenkin, Jac. 245, 255 ; Hill v. Gomme, 1 Bea. 540 ; 
 5 M. & C. 250 ; De Manneville v. De Manneville, 10 Ves. 52, 64. 
 
 (a) Shelley v. Westbrooke, Jac. 266, n. ; Wellesley v. Beaufort, 2 
 Euss, 1 ; 2 Bl. N. S. 124; Ball v. Ball, 2 Sim. 35; Ke Spence, 2 Ph. 
 247. 
 
 ' [See note, ante, p. 280.] 
 
 ' [These principles were acted on in Cowls v. Cowls, 3 Gilm. 435 ; 
 Conim. V. Addicks, 2 Serg. & R. 174. 
 
 The Court will refuse to give possession of children to their father, if 
 he has so conducted himself as that it will not be for their benefit, or if 
 it will affect their happiness, or if they cannot associate with him with- 
 
604 ADAMS'S DOCTRINE OF EQUITY. 
 
 It is enacted by a late statute, entitled " An Act to 
 amend the law relating to the Ciistody of Infants," that 
 the Court of Chancery, upon the petition of the mother 
 of any infant, may make order for the access of the pe- 
 titioner 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 petitioner until such age. But no mother 
 r*98n ^S^^"^* whom adultery *has been established, by 
 '- -I a judgment in an action for criminal conversation 
 at a suit of her husband, or by the sentence of an Eccle- 
 
 out moral contamination, or if, because they associate with him, others 
 will shun their society. In a case where the Court entertained a strong 
 belief that a charge of an unnatural crime, brought against a father, was 
 true, though he had been in fact acquitted thereof upon an indictment, 
 the Court refused to permit any sort of intercourse between him and 
 them. Anon. 2 Sim. N. S. 54. 
 
 In Thomas v. Eoberts, 3 De Gr. & Sm. 758, the Agapemone case, a 
 father who had deserted his wife, and who was a member of an absurd 
 religious sect, whose tenets the Court considered of an injurious ten- 
 dency, was refused the custody of his child. 
 
 Infants of tender years, however, have been left ex necessitate with a 
 mother, though her principles were of an immoral tendency, and she 
 was living in adultery : Comm. v. Addicks, 5 Binn. 520 ; they were 
 afterwards removed, however, on arriving at a more advanced age. S. 
 C. 2 S. & K. 174.] 
 
 Fixed habits of intemperance constitute a sufficient reason for the re- 
 moval of a guardian. Kettletas v. Gardner, 1 Paige, 488. So, specu- 
 lation 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. E. 309. See also 
 on the subject, Disbrow v. Henshaw, 8 Cow. 349 ; In re Kennedy, 5 
 Paige, 244. 
 
OF INFANCY. 605 
 
 siastical 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 in- 
 fant so convicted, and to provide for his maintenance and 
 education, may assign the custody of such infant during 
 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 purpose, 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. (^) 
 
 2. The ward's estate must be managed and applied 
 under the superintendence of the Court. 
 
 The manner of management, like that of education, 
 differs according to the circumstances of the case. If 
 there are no trustees within the jurisdiction 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, (q) 
 
 In cases where a trust exists, the degree of authority 
 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 
 
 (o) 2 & 3 Vict. c. 54 ; Ee Taylor 10 Sim. 291 ; 11 Sim. 178 ; [see 
 Ee Halliday's Est. 17 Jur. 56.] 
 (i)) 3 & 4 Vict. 0. 90. (2) Gardner v. Blane, 1 Hare, 381. 
 
606 ADAMS'S DOCTRINE OF EQUITY. 
 
 no inherent power to dispose of or alter the estate itself 
 except in cases of election or partition, where the dispo- 
 sition is demandable *as of right by other par- 
 L -• ties,(r)i and of the devolution on an infant of a 
 
 (r) Garmstone v. Gaunt, 1 Coll. 577 ; note to Gretton v. Hawatd, 1 
 Sw. 413 ; Simson v. Jones, 2 R. & M. 365, 374 ; Calvert v. Godfrey, 6 
 Bea. 97, 109 ; supra. Partition. 
 
 1 [Rogers v. Dill, 6 Hill, 415 ; but contra. Matter of Salisbury, 3 
 John. Ch. 347; Williams v. Harrington, 11 Ired. R. 616; Ex parte 
 Jewett, 16 Alab. 409 ; Huger v. Huger, 3 Desaus. 18 ; Stapleton v. 
 LangstaiF, Id. 22. See William's ease, 3 Bland, 186. In most of the 
 States there are now statutes which authorize the sale of the infant's 
 estate on application by the guardian to the proper Court, where it is 
 necessary or proper for the infant's benefit. See, in Penn. Acts of 
 1834, § 33 ; 1836, § 1 ; &c. ; and see Garland v. Loving, 1 Rand. 
 396 ; Matter of Wilson, 2 Paige, 412 ; Pope v. Jackson, 11 Pick. 113 
 Talley v. Starke, 6 Gratt. 339 ; Duokett v. Skinner, 11 Ired. 481 
 Brown's case, 8 Humph. 200 ; Peyton v. Alcorn, 7 J. J. Marsh. 502 
 Dow's Pet. Walker's Ch. 145 Young v. Keogh, 11 111. 642; Ex parte 
 Jewett, 16 Alab. 409. In New York, the jurisdiction of the Court on 
 the sale of an infant's real estate is considered to be wholly derived from 
 the statute of that Sta:te, and not to extend to cases not there provided 
 for. Baker v. Lorillard, 4 Comst. 257. The sale of an infant's real 
 estate is frequently directed by act of the legislature, in this country; 
 and there is no doubt, now, of the constitutionality of such acts : Snow- 
 hin v. Snowhill, 2 Green Ch. 20; Norris v. Clymer, 2 Penn. St. 277; 
 Davis V. Johonnot, 7 Mete. 388 ; Spotswood v. Pendleton, 4 Call. 514 ; 
 Dorsey v. Gilbert, 11 Gill & J"ohn. 87 ; Nelson v. Lee, 10 B. Monr. 495 ; 
 Powers V. Bergen, 2 Seld. 358 ; even though the infants be non-resiT 
 dents. Nelson v. Lee, ut supr. 
 
 A guardian or trustee for infants, has in general no power to convert 
 realty into personalty, or vice versa. Royer's App. 11 Penn. St. 36 ; 
 Bonsall's App. 1 Rawle, 273 ; Kaufman v. Crawford, 9 Watts & Serg. 
 131 ; Eckford v. De Kay, 8 Paige, 89 ; Sherry v. Sansberry, 3 Ind. 320 ; 
 Ex parte Crutohfield, 3 Yerg. 336; White v. Parker, 8 Barb. S. C.48; 
 Hassard v. Rowe, 11 Id. 22. But it has been held that in case of immi- 
 nent necessity the guardian might purchase land with his ward's money. 
 Bonsall's App. ut sup. ; Billington's App. 3 Rawle, 55 ; Royer's App. 
 
or INFANCY. 607 
 
 mortgaged estate, where a sale is the only protection 
 against foreclosure, (s) If it be for an infant's benefit to 
 invest money in land, and thus to change personal into 
 real estate, the order authorizing the investment will be 
 coupled with a declaration that the land shall be con- 
 sidered, during the minority, as constructively perso- 
 nal. (<)' 
 
 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 
 
 (s) Mondey v. Mondey, 1' Ves. & B. 223 ; Brookfield v. Bradley, Jac. 
 634 ; Davis v. Dowding, 2 K. 245. 
 
 (0 Ashburton v. Ashburton, 6 Ves. 6 ; Ware v. Polhill, 11 Ves. 257, 
 278; Webb v. Lord Shaftesbury, 6 Madd. 100; Ex parte Phillips, 19 
 Yes. 118, 122. 
 
 11 Penn. St. 36; Bowman's App. 3 Watts, 369 ; though see Bloore v. 
 Moore, 12 B. Monroe, 651. Permanent improvements are equivalent to 
 a conversion. Bellinger v. Shafer, 2 Sandf. Ch. 297 ; Hassard v. Rowe, 
 11 Barb. S. C. 22 ; Miller's Est. 1 Penn. St. 326. In Jackson v. Jack- 
 son, 1 Gratt. 143, however, an allowance for permanent improvements 
 was made, it being obviously for the infant's benefit. 
 
 In Sweezy v. Thayer, 1 Duer, N. Y. 286, where there was a sale of 
 an infant's real estate under a decree of foreclosure on a mortgage, it 
 was held that the surplus remained real estate, and would descend as 
 such at his death ; that he might elect, on coming of age, whether to 
 take it as realty or personalty; and that such surplus, though invested 
 in personal securities, could not be further converted into personalty. 
 And see, also, that where an infant's realty is converted by order of 
 Court or act of the Legislature, its proceeds remain realty as regards 
 him and his heirs, during minority. Snowhill v. Snowhill, 2 Green Ch. 
 20; Lloyd V. Hart, 2 Penn. St. 478; March v. Berrier, 6 Ired. Eq. 
 524.] 
 
 ' See, to this point, Huger v. Huger, 3 Desau. 18 ; Stapleton v. Lang- 
 staff, Ibid. 22 ; Dorsey v. Gilbert, 11 Gill & J. 87. See also Hedges 
 V. Biker, 5 Johns. C. R. 163 ; Mills v. Dennis, 3 John. C. R. 370 ; 
 Davison v. De Freest, 3 Sandf. C. R. 456 ; Snowhill v. Snowhill, 2 
 Green's Ch. 20 ; sed vide Roberts v. Jackson, 3 Yerger, 77. 
 
608 ADAMS'S DOOTEINE OP EQUITY. 
 
 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 
 belonging to Infants, Femes Covert, Lunatics, and Per- 
 sons of Unsound Mind."(v) 
 
 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 conferred by the subse- 
 quent clauses in the case of infants 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 exercised, as we shall hereafter see, by 
 the Lord Chancellor, intrusted under the sign manual 
 with the custody of lunatics. The acts which the Court 
 r*98n °^ Chancery is thus *empowered to correct, are 
 the surrender of renewable leases belonging to 
 an infant or feme covert, and the acceptance of renewed 
 ones in their stead ; the renewal of leases which the in- 
 fant ovfeme covert, if not under disability, might be com- 
 pelled to renew ; the leasing of property belonging to an 
 infant in fee or in tail, or for an absolute leasehold inte- 
 rest ; the entering into agreements on behalf of an infant 
 under the Act for augmenting the Maintenance of the 
 Poor Clergy; (it) and the application for an infant's 
 maintenance, of the dividends on his stock, under which 
 
 (u) Supra, Trust ; Specific Performance ; Mortgage ; Administration 
 of Assets. 
 
 (v) 11 Geo. 4 & 1 Wm. 4, c. 65 ; 1 & 2 Viet. c. 62. 
 (w) 1 Geo. 1, c. 10. 
 
OF INFANCY. 609 
 
 name is included every fund, annuity, or security trans- 
 ferable 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 naake a reasonable allowance for mainte- 
 nance, provided the ward be entitled absolutely to a 
 present income, and the allowance be for his benefit. 
 The expenditure for this purpose is generally confined 
 to income ; and is rarely permitted to break in upon 
 capital. But the capital may be applied for the ad- 
 vancement of the child in life, e. g., for binding him 
 apprentice, or purchasing him a commission in the 
 army.(2/)' 
 
 (x) Infra, Lunatics. 
 
 (y) Walker v. Wetherell, 6 Ves. 473 ; [Re Welch, 23 L. J. Ch. 
 344; Nunn v. Harvey, 2 De G. & Sm. 301 ; Ee Clarke, 17 Jur. 362; 
 Ke Lane, Id. 219 ; Williams's Case, 8 Bland, 186 ; see Ex parte Hays, 
 3 De G. & Sm. 485.] 
 
 ' 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, 
 ia such ease, upon his application. Davis v. Harkness, 1 Gilm. 173 ; 
 Davis V. Eoberts, 1 Sm. & Marsh. C. R. 543 ; Anderson v. Thompson, 
 11 Leigh, 439 ; Prince v. Logan, Speer's C. R. 29 ; McDovrell v. Cald- 
 well, 2 McCord C. R. 43 ; Myers v. Wade, 6 Rand. 444 ; Villard v. 
 Chovin, 2 Strob. Eq. 40 ; Holmes v. Logan, 3 Strob. Eq. 31 ; [Hester 
 V. Wilkinson, 6 Humph. 219; Bybee v. Tharp, 4 B. Monr. 313; Carter 
 V. RoUand, 11 Humph. 339 ; Cornwise v. Bourgum, 2 Geo. Dec. 15 ; 
 Frelick v. Turner, 26 Miss. (4 Cushm.) 393.] 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. R. 354. So a guardian will be allowed for disbursements, al- 
 though they exceed the income of the ward's estate in his 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 
 
 .39 
 
610 ADAMS'S DOCTRINE OF EQUITY. 
 
 The authority of the Court to allow maintenance 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 the child out of a 
 stranger's estate, or as one of the trusts under a contract 
 of settlement. In these cases, the authority of the Court 
 is to effectuate the gift, and to allow maintenance, if di- 
 rected, 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 application is for his 
 benefit ; and it will accordingly be exerted though no 
 maintenance *or a less maintenance be directed 
 L -I by the gift, or even though there be an express 
 direction to accumulate, (z) 
 
 In order to obtain an allowance for maintenance, it 
 must be shown that there is a present income belonging 
 absolutely to the infant, and that the allowance will be 
 for his benefit. 
 
 There must be a present income belonging absolutely 
 
 (z) Stretch v. Watkins, 1 Mad. 253. 
 
 will be allowed such expenses out of the principal of the ward's estate. 
 See Hooper v. Eoyster, 1 Munf. 119 ; Long v. Norcom, supra ; [Ex 
 parte Potts, 1 Ashm. 340 ; Ex parte Bostwick, 4 John. Ch. 100 ; Hai- 
 good V. Wells, 1 Hill's Eq. 59; Maclin v. Smith, 2 Ired. Eq. 371; Carter 
 V. RoUand, 11 Humph. 339.] Even the principal of a vested legacy 
 will be broken into for the purpose of educating an infant legatee. 
 Newport 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 ; [see ante, p. 284, and note.] 
 
 Moreover, although a guardian has no right to expend the principal, 
 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. 
 
OF INFANCY. 611 
 
 to the infant. It is not, however, essential to a compli- 
 ance with this rule that the income should belong abso- 
 lutely to the individual infant. It is sufficient if it be- 
 longs absolutely to a class, all of whom can be collected 
 before the Court, and may be equally benefited by the 
 application. But if persons, not in esse, may become 
 entitled, it is not sufficient that the parties before the 
 Court are presumptively 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 maintain one person out of the property of 
 another, (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 condition in life, without injury 
 to his other children, (c)^ 
 
 (o) Ex parte Kebble, 11 Ves. 606 ; Turner v. Turner, 4 Sim. 430 ; 
 Cannings v. Flower, 7 Sim. 523 ; Marshall v. HoUoway, 2 Sw. 432, 
 436. 
 
 (6) 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; Stoeken v. Stocken, 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 Wal- 
 ker T. Crowder, 2 Ired. C. R. 478 ; Booth v. Sineath, 2 Strob. Eq. 31 ; 
 
612 ADAMS'S DOCTRINE OF EQUITY. 
 
 The manner of maintenance is by allowing a 
 annual sum proportioned to the age and rank, and to 
 the fortune *of the infant, without inquiring, 
 L J unless on special grounds, into the details of ex- 
 penditure. And in making such allowance, the princi- 
 
 Chapline v. Moore, 7 Monr. 173 ; Myers v. Myers, 2 MeCord'a C. K 
 255 ; Ellerbe v. The Heirs and Legatees of Ellerbe, 1 Speer's C. E. 
 328 ; Dupont v. Johnson, 1 Bailey's Eq. 279 ; Van Valkinburgh v. 
 Watson, IB- Johns. E. 480; Addison v. Bowie, 2 Bland C. E. 606; 
 Jones V. Stockett, Id. 409,431; Cruger v. Heyward, 2 Desau. 94; 
 Harland's Accounts, 5 Rawie, 323 ; [Matter of Kane, 2 Barb. Ch. 375 ; 
 Beathea v. McColl, 5 Alab. 312; Sparhawk v. Buell, 9 Verm. 41; 
 Walker v. Crowder, 2 Ired. Eq. 478 ; though this would not apply, it 
 seems, to a step-father. Gay v. Ballou, 4 Wend. 403 ; Freto v. Brown, 
 4 Blass. 675 ; see Booth v. Sineath, 2 Strob. Eq 31.] For cases of a 
 mother's obligation, see Matter of Bostwick, 4 Johns. C. R. 100; Wilkes 
 V. Rogers, 6 Johns. R. 566 ; Heyward v. Cuthbert, 4 Desau. E. 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 estate : see Hughes v. Hughes, 1 Brown's Cli. 
 C. 387 ; Whipple v. Dow, 2 Mass. 415 ; Dawes v. Howard, 4 Mass. 
 97 ; [Matter of Bostwick, 4 John. Ch. 100 ; Heyward v. Cuthbert, 4 
 Desaus. 445 ; Dawes v. Howard, 4 Mass. 97 ; Douglas v. Andrews, 12 
 Beav. 310; Bruin v. Knott, 1 Phillips, 573 ; Anderton v. Yates, 5 
 De G. & Sm. 202.] 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. 
 
 [When the father is unable to support the infant, the Court will make 
 an allowance for its maintenance. Rice v. Tonnele, 4 Sand. Ch. 571 ; 
 Matter of Burke, Id. 617 ; Corbin v. Wilson, 2 Ashm. 178 ; Newport 
 T. Cook, Id. 337 ; Beathea v. McColl, 5 Alab. 312 ; Watts v. Steele, 19 
 Id. 656 ; Carmichael v. Hughes, 6 Eng. L. & Eq. 71. In some cases, 
 allowances for past maintenance have been made to the father. Corbin 
 V. Wilson ; Newport v. Cook ; Carmichael v. Hughes, ut supr. So of 
 the mother. Matter of Bostwick, 4 Johns. Ch. 100 ; Bruin v. Knott, 
 1 Phill. 573. But in England, it is said that the father cannot have 
 past maintenance, except in very special circumstances. Carmichael v. 
 Hughes, ut supr. A direct benefit to the father, not maintaining the 
 child, will not be allowed. Re Stables, 21 L. J. Ch. 620.] 
 
OP INFANCY. 613 
 
 pie 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 respect- 
 ably, than that money should be accumulated for him- 
 self (c?) 
 
 If moneys have been already expended on his main- 
 tenance by a stranger, an allowance may be made for 
 such past maintenance proportioned to the amount ex- 
 pended, and commencing from the period when the pro- 
 perty first vested. But an allowance for past mainte- 
 nance 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, if the 
 ward be a female, that a proper settlement is made.(/)2 
 The marriage of an infant ward, without permission of 
 the Court, is a criminal contempt in all parties except 
 the infant, and is punishable by commitment during 
 
 (d) Wellesley v. Beaufort, 2 Russ. 1, 28. 
 
 (e) Re Mary England, 1 E. & M. 499 ; Ex parte Bond, 2 M. & K. 
 439; Chaplin v. Chaplin, 3 P. Wms. 368 ; Bruin v. Knott, 1 Ph. 572. 
 
 (/) Halsey v. Halsey, 9 Ves. 471 ; Long v. Long, 2 S. & S. 119. 
 
 ' As to allowance for past maintenance, see Matter of Kane, 2 Barb. 
 Ch. R. 875. 
 
 ^ It is, perhaps, the duty of a guardian to apply to the Court to autho- 
 rize the marriage of his female ward, if she be " i, ward of the Court." 
 Shutt T. 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 in- 
 trusted by law to the father or guardian ; and, consequently, settlements 
 made by infants through the father or guardian are binding. 
 
614 ADAMS'S DOCTRINE OF EQUITY. 
 
 pleasure. If the infant be a female, the husband will 
 be compelled, by imprisonment, to make a proper set- 
 tlement of her property ; and will be excluded, either 
 wholly or in proportion to his criminality, from deriving 
 any personal benefit out of his wife's fortune, so far as 
 can be done without injury to her.(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 settle- 
 L -■ ment, dischargeable only by her personal 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 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.(^) 
 
 In addition to the general jurisdiction over the mar- 
 riage of wards, the Court of Chancery has a special au- 
 thority under the Marriage Act to appoint a guardian to 
 
 (g) Ball V. Coutts, 1 Ves. & B. 292 ; Ke Walker, LI. & G. 299 ; 
 Hodgens v. Hodgens, 4 CI. & F. 323 ; Birkett v. Hibbert, 3 M. & K. 
 227 ; Kent v. Burgess, 11 Sim. 361. 
 
 (Sr^) Ball V. Coutts, 1 Ves. & B. 292, 300 ; Long v. Long, 2 S. & S. 
 119 ; Austen v. Halsey, 2 S. & S. 123 n. ; Hobson v. Perraby, 2 Coll. 
 412. 
 
 (Ji) Milner v. Harewood, 18 Ves. 259 ; Simson v. Jones, 2 K. & M. 
 365 ; Saville v. Saville, 2 Coll. 721 ; [Field v. Moore, 25 L. J. Ch. 66.] 
 
 1 [This rule will not be applied with strictness where the husband was 
 ignorant of the fact that his wife'was a ward. Richardson v. Merrifield, 
 4 De G. & Sm. 161.] 
 
OP IDIOCY AND LUNACY. 615 
 
 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 nmi 
 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 wil- 
 fully 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 discretionary provision p^n^^^ 
 for *the offending parties, having regard to the ^ ^ 
 benefit of the issue of that or of any future marriage. (7^) 
 The jurisdiction to protect persons under mental inca- 
 pacity is of an analogous origin with that for protection 
 of infants ;(Z) 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 j urisdiction. {m) ' 
 
 (i) 4 Geo. 4, c. 7G, s. 16 and 17 ; Ex parte J. C. 3 M. & C. 471. 
 
 Qe) 4 Geo. 4, c. 76, s. 23, 24, 25 ; Attorney-General v. Mullay, 4 
 Euss. 319 ; S. C. 7 Bea. 451 ; Attorney-General v. Severne, 1 Coll. 
 313. 
 
 (T) 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 pro- 
 
616 ADAMS'S DOCTRINE OF EQUITY. 
 
 The persons for whose benefit it exists are divided into 
 two classes ; viz., idiots who have had no glimmering of 
 reason from their birth, and are, therefore, by law pre- 
 sumed never likely to attain any;" and lunatics, or persons 
 of unsound mind, who have had understanding but have 
 lost the use of it, either with or without occasional lucid 
 intervals, and by reason of its loss have become incapa- 
 ble of managing their affairs, (w)^ The jurisdiction in 
 idiocy is of little practical importance, as it rarely hap- 
 
 (n) 2 Steph. Bl. 529-531. 
 
 vided 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 subject of Chancery jurisdiction 
 under this head, L' Amoureux v. Crosby, 2 Paige, 423 ; Matter of Wen- 
 dell, 1 Johns. C. K. 600; Gorham v. Gorham, 3 Barb. C. K. 24; Naylor 
 V. Naylor, 4 Dana, 343 ; Coleman's- Case, 4 Hen. &Munf. 506; [Warden 
 V. Eichbaum, 14 Penn. St. 127 ; Hinchman v. Richie, Bright. N. P. 
 143.] 
 
 ^ A person deaf and dumb from his birth, is not, on that account, to 
 be deemed non compos ; though such, perhaps, may be the legal pre- 
 sumption, 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 Tred. C. R. 535. [So of a person deaf, dumb, and blind, 
 without other proof of mental incapacity. Re Biddulph's and Poole's 
 Trusts, 5 De G. & Sm. 469.] 
 
 ' It is not every case of mental weainess which 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 AKD LUNACY. 617 
 
 pens 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 jurisdictions in 
 infancy and lunacy, would lead us to anticipate their ex- 
 ercise through the same channel and in the same form 
 of procedure ; viz., through the Court of Chancery in a 
 regular suit. In this respect, however, a material dis- 
 tinction exists. The jurisdiction in lunacy is exercised 
 not by the Court of Chancery in a regular suit, but by 
 the Lord Chancellor personally on petition ; and the 
 appeal, if his order be erroneous, is to the King in coun- 
 cil, 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 death. r*oqiT 
 If the owner is an idiot, the profits 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 representatives. (o) In either case there 
 is an interest vested in the Crown, and requiring for its 
 administration a special grant. The duty of such ad- 
 ministration 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 superin- 
 tendence depends on the authority of the Great Seal, and 
 not on the special warrant, and that if the warrant were 
 
 (o) Steph. Bl. 529-531. 
 
618 ADAMS'S DOCTKINE OF EQUITY. 
 
 to any other officer, his authority would cease with the 
 appointment of committees, (p) 
 
 The existence of a vested interest in the Crown, intro- 
 duces 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 for his maintenance 
 without requiring an inquisition. (5)^ And by a recent 
 statute it is enacted, that where any person not found 
 lunatic by inquisition has been detained under the pro- 
 r*9q9i visions of the *Lunacy Acts, the Lord Chancellor 
 may direct an inquiry into his case, and on a 
 report that he is a lunatic may appoint guardians of his 
 person 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 
 
 (p) 2 Story on Eq. s. 1336, and notes ; Id. s. 1362-1365 ; Oxenden 
 V. Lord Compton, 2 Ves. J. 69, 71 ; 4 B. C. C. 231 ; Ex parte Grim- 
 stone, Amb. 706; Re Fitzgerald, 2 Sch. &L.431; Johnstone v. Beattie, 
 10 CI. & R 42, 120. 
 
 (q) Gillbee v. Gillbee, 1 Ph. 121; Nelson v. Duncombe, 9 Bea. 211; 
 Sherwood v. Sanderson, 19 Ves. 280. 
 
 (r) 8 & 9 Vict. c. 100, s. 95-98 ; Orders of Deo. 1845. 
 
 1 [See Matter of Runey Dey, 1 Stockt. 181.J 
 
 " So the Court may always, in a proper case, extend its protection to 
 the property of the lunatic, before inquest. Owing's Case, 1 Bland 0. 
 R. 370, 373; Post v. Maokall, 3 Bland C. R. 486; Matter of Wendell, 
 1 Johns. C. R. 600; Matter of Runey Dey, 1 Stookt. 181. 
 
OF IDIOCY AND LUNACT. 619 
 
 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 motives of the applicant are sus- 
 picious, (s) 
 
 The proceedings under the commission are regulated 
 by statute. (<)' Their general outline is, that a jury is 
 empanelled and sworn ; the witnesses and the supposed 
 lunatic, if he thinks fit to be present, are examined f and 
 the inquisition is engrossed, and after signature by the 
 commissioners and jury is returned into Chancery. If 
 there be misbehavior in executing the inquisition, or if 
 the return be insufBcient at law, the inquisition may be 
 
 (s) Ex parte Tomlinson, 1 Ves. & B. 57 ; Ee J. B, 1 M. & C. 538 ; 
 Ee 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. 
 
 ' In New York, the Court of Chancery has the entire jurisdiction 
 over cases of idiocy and lunacy, and the manner in which the question of 
 lunacy shall be tried is discretionary with the Court. The most satis- 
 factory 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 execution. Matter 
 of Tracy, 1 Paige, C. R. 580 ; Matter of Whitenack, 2 Green. C. R. 
 252; [Hinchman v. Richie, Bright, N. P. 144;] Case of Covenhoven, 
 Saxton, 19. But see Medlock v. Cogburn, 1 Rich. C. R. 477. [Though 
 the fact of notice does not appear on the face of the proceedings, yet 
 they cannot for that reason be treated as a nullity in a collateral pro- 
 ceeding after confirmation. Willis v. Willis, 12 Penn. St. 159. 
 
 In Ex parte Richards, 16 Jur. 508, parties interested under a settle- 
 ment executed ten years previously, were allowed to attend a commis- 
 sion, the object of which was to carry back the finding thirty years.] 
 
620 ADAMS'S DOCTRINE OF EQUITY. 
 
 quashed and a new commission issued. If the return 
 untruly finds the party lunatic, it may be traversed by 
 himself or by any one claiming under a contract with 
 him ; if it untruly finds him of sound mind, a writ of 
 melius inquirendum may be issued by the Crown. (m) 
 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, (v)^ 
 
 The right of traversing the inquisition is conferred 
 r*9QS1 ^^ *statute.(w5)'' By the common law, where a 
 ■- "^ ^ direct title of freehold appeared in the Crown by 
 
 (w) Ex parte Koberts, 3 Atk. 6 ; Ex parte Hal], 7 Ves. 261 ; Re 
 Holmes, 4 Kuss. 182 ; Ee Bruges, 1 M. & C. 278. 
 
 (y) Ex parte Holyland, 11 Ves. 10 ; Ee Gordon, 2 Ph. 242. 
 
 {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. 
 
 ^ On proof that the lunatic had recovered his senses, a commission of 
 lunacy was superseded. Ex parte Drayton, 1 Desau. 144. On petition 
 by a lunatic, to supersede the commission, the Court will direct an in- 
 quiry, 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. E. 567. Or he may traverse the inquisition, or 
 have the question tried on a feigned issue. Matter of McClean, 6 Johns. 
 C. E. 440. And where the 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 par- 
 tially, so as to enable him to make a will. Matter of Burr, 2 Barb. C. 
 E. 208. [Where a dissolution of a partnership had been decreed in 
 consequence of the lunacy of one of the partners, and large sums had 
 been paid into Court on the separate account of the lunatic in respect of 
 his share of the capital and profits of the business, the Lord Chancellor, 
 being satisfied subsequently of the complete recovery of the lunatic, or- 
 dered the whole fund to be paid out to him. Leaf v. Coles, 1 De G. 
 Macn. & G. 417.] 
 
 ^ [It is a matter of right that a person found lunatic under an inqui- 
 
OF IDIOCY AND LUKACT. 621 
 
 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 peti- 
 tion to the Great Seal, (x) The proviso requiring leave 
 from the Great Seal, has occasioned doubts whether such 
 leave is not discretionary with the Court. But it is de- 
 termined 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 meantime suspend any further inter- 
 ference, {y) 
 
 (x) 2 Madd. C. P. 854 ; Ex parte Lord Gwydir, 4 Mad. 281. 
 (y) Ex parte Hall, 7 Ves. 261; Sherwood v. Sanderson, 19 Ves. 280; 
 Re Bridge, Cr. & P. 338 ; Re Watts, 1 Ph. 512. 
 
 sition, shall, if desirous, have a traverse of the inquisition : Ex parte 
 Loveday, 1 De G. Macn. & G. 275 ; Ee Gumming, Id. 587 ; and so, it 
 seems, as to any party interested. Re Gumming, ut supr. The Lord 
 Chancellor has, nevertheless, a discretion to exercise, upon the applica- 
 tion for the writ being made to him, as to whether it ought to issue in 
 the particular case. But the Gourt will not, in exercising the discretion, 
 enter into the question whether the lunacy was or was not proved before 
 the jury, but will merely ascertain by a personal examination of the 
 lunatic, whether he is capable of volition in the matter, and really desires 
 a traverse. The Court would not, for instance, permit a traverse in a 
 case of raving madness. If the Court, upon the examination, entertains 
 a doubt as to the existence of such a desire on the part of the lunatic, it 
 will, perhaps, look to other matters in forming its determination j such 
 as the persons aj^lying for the commission, and by whom the lunatic 
 was surrounded, and what were the views and objects of the parties 
 applying. Re Gumming, 16 Jur. 483 ; 1 De G. Macn. & G. 537.] 
 
622 ADAMS'S DOCTRINE OF EQUITY, 
 
 On a return of non compos being made, and either 
 submitted to, or established on trial of a traverse, the 
 custody of the estate and person is granted to committees 
 with a proper allowance for maintenance.' And even 
 though a traverse be pending, the Chancellor may at 
 his discretion take the same course, (z) 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 reimbursement alone, (a)^ The duty of the com- 
 mittee or receiver of the estate is to manage the lunatic's 
 r*9Q^-i property with care, *to bring in and pass his 
 L -I accounts, and to pay and invest the balances at 
 such times as the superintending officer (called the 
 Master in Lunacy) shall direct. And he is required 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 bankrupt or insolvent. (J)' 
 
 (z) Ee Bridge, Cr. & P. 338. 
 
 (a) Ex parte Kadcliffe, IJ. & W. 619 ; Ex parte Fermor, Jac. 404. 
 
 (6)0rdersof 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. E. 124; Matter of Ganse, 
 9 Paige, 416 ; Matter of Fowler, 2 Barb. C. E. 305. 
 
 * See Matter of Eoberts, 3 Johns. C. E. 43 ; Matter of Livingston, 9 
 Paige, 440. 
 
 » [In the Matter of Elias, 3 Macn. & Gord. 234, an order was made, 
 on the application by a curator of a lunatic resident in Holland, for the 
 transfer to him of the corpus of funds in England, to which the lunatic 
 was entitled ; though it did not appear either that the lunatic was a 
 Dutch subject, or that the curator had given security.] 
 
OF IDIOCY AND LUNACY. 623 
 
 In cases requiring the exercise of discretion, it is not 
 usual to act without previous investigation by the Court. 
 The mode of investigation was, until recently, by refer- 
 ring the matter for inquiry to a Master 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 Chancellor shall specially direct other- 
 wise, are transferred to the Commissioners, now termed 
 the Masters, in Lunacy. By the same orders the neces- 
 sity of a previous reference is in many instances dis- 
 pensed with, and an application to the Chancellor is 
 only requisite to confirm the report. (cZ) The inquiries 
 which may be thus made without a previous reference, 
 are inquiries 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 mainte- 
 nance, until the appointment of committees ; to enlarge 
 the time within which the committee of the estate must 
 complete his security , to receive proposals or conduct 
 inquiries as to managing, settling, 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 presump- 
 tive heirs or next of kin shall attend at the cost of the 
 estate on any proceedings in lunacy, (e) The principle 
 on which the attendance of the heir and next of 
 *kin is allowed, is not that they have any recog- '- -■ 
 nized interest in the lunatic's property, but that they are 
 
 (c) 11 Geo. 4 & 1 Wm. 4, c. 60. 
 
 (rf) 5 & 6 Vict. c. 84 ; 8 & 9 Vict. c. 100, s. 2 ; Orders of October, 
 1842. 
 (e) Orders of October, 1842, 10 to 15. 
 
624 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 interest of the 
 Crown was determinable on recovery or death ; and any 
 lease or other disposition by the committee was necessa- 
 rily subject to the same contingency. (g*) The statutory 
 powers applying to the beneficial interests of a lunatic 
 are conferred by the statute, which has been already 
 noticed, "for amending the laws relating to property 
 belonging to infants, femes cmert, lunatics, and persons 
 of unsound mind." (7t) 
 
 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 admittance, without requir- 
 ing the sanction of a judicial order. The powers con- 
 ferred by the subsequent clauses in the case of infants 
 and femes covert have been already stated. (i) The 
 powers conferred in the case of lunatics are to be ex- 
 ercised under the sanction 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 belonging to a lunatic, and the acceptance of 
 renewed 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 renew; 
 the exercise of leasing powers vested in a lunatic over 
 
 (/) Ex parte Whitbread, 2 Meriv. 99 ; Ke Pearson, 1 Coop. Ch. Ca. 
 314. 
 
 {g) Supra, Trust ; Mortgage. 
 (A) 11 Geo. 4 & 1 Wm. 4, c. 65. 
 (i) Supra, Infants. 
 
OF IDIOCY AND LUNACY. 625 
 
 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 agree- 
 ments on behalf of the lunatic under the Act for aug- 
 menting *the Maintenance of the Poor Clergy ; (k) 
 the making conveyances under a decree for spe- L -^ "J 
 cific performance, where the contracting party has be- 
 come 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 trans- 
 fer and payment of a lunatic's stock and dividends, under 
 which name is included every fund, annuity, or security 
 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 ac- 
 cording to the law of his place of residence. The same 
 act provides, that transcripts of inquisitions on commis- 
 sions under the Great Seal of Great Britain may be en- 
 tered 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 act- 
 ing as an owner of competent understanding would do, 
 without regard to his eventual 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 
 
 (k) 1 Geo. 1, c. 10. 
 
 ' Accordingly, In the Matter of Salisbury, 3 Johns. C. R. 347, it was 
 held that in the management of a lunatic's estate the interest of the 
 
 40 
 
626 Adams's docteine of equity. 
 
 such alteration be made, the property will devolve, on 
 the lunatic's death, in accordance with its altered cha- 
 racter, and not in accordance with that which it previ- 
 ously 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, there- 
 fore, in ordering the conversion to be made, will add a 
 declaration that, while *the minority lasts, the 
 ■- -I converted property shall retain in equity its ori- 
 ginal 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 therefore, 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 under- 
 stood with this guard, that nothing extraordinary is to 
 be attempted ; e. g., estates to be bought, or interests 
 disposed of. Alteration of property is to be avoided, so 
 far as is consistent with the proprietor's interest. (Z) 
 
 The same principle of looking to the lunatic's advan- 
 tage alone is pursued in fixing the amount of the main- 
 
 (l) Oxenden v. Lord Compton, 2 Ves. J. 69 ; Ex parte Phillips, 19 
 Ves. 118 ; Ex parte Digby, 1 J. & W. 620 ; Re Badcock, 4 M. & C. 
 440. 
 
 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 per- 
 sonal 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 Re Livingston, 9 Paige, 440 ; Matter of Dray- 
 ton, 1 Desau. 136. 
 
OF IDIOCY AND LUNACY. 627 
 
 tenance; 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 pro- 
 vided for, his allowance may be increased to give assis- 
 tance to thera.(m) 
 
 If after due allowance for the lunatic's maintenance, 
 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 should be 
 discharged ; but there is no instance of paying the debts 
 without reserving a sufficient maintenance, although 
 the creditors cannot be restrained from proceeding at 
 law.(«)^ 
 
 (m) Ex parte Whitbread, 2 Mer. 99 ; Ee Blair, 1 M. & C. 300 ; Ke 
 Drummond, 1 M. & C. 627 ; Re Carysfoot, Cr. & P. 76 j Edwards v. 
 Abrey, 2 Ph. 37 ; Re Thomas, 2 Ph. 169 ; Re Clarke, 2 Ph. 282. 
 
 (n) Ex parte Dikes, 8 Ves. 79 ; Ex parte Hastings, 14 Ves. 182. 
 
 ' 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., per- 
 sons whom he had adopted as children. Matter of Heeney, 2 Barb. C. 
 R. 326. [See on the subject of the maintenance to be allowed, Davies 
 V. Davies, 2 De G. Maen. & Gr. 51 ; Re Burbidge, 3 Macn. & G. 1 ; 
 Eckstein's Estate, 1 Pars. Eq. 67 ; Guthrie's App. 16 Penn. St. 321.] 
 
 ^ In New York, the real estate of a lunatic may be sold for the pay- 
 ment 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 personal estate is 
 exhausted. In re Pettit, 2 Paige, 596. 
 
 In Kentucky, it would seem, the Chancellor has no right to decree a 
 
628 ADAMS'S DOCTRINE OF EQUITY. 
 
 r*9Q81 *^^ *^^ death of the lunatic, the power of ad- 
 ministration is at an end, except as to orders 
 which have been already made, or which are conse- 
 quential on reports or petitions already made or pre- 
 sented, (o) But the committee continues under the 
 control of the Cowrt, and will be ordered on the appli- 
 cation of the lunatic's heir to deliver up possession 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 re- 
 covery of a lunatic, the same course should not in strict- 
 ness be followed. The practice, however, is to restore 
 possession by an order of the Court.d?) 
 
 (o) Ex parte McDougal, 12 Ves. 384 ; Kock v. Cooke, 1 Coll. 477. 
 {p) Ex parte Fitzgerald, 2 Sch. & L. 439 ; Ke Pearson, 1 Coop. Ch, 
 Ca. 814. 
 
 sale of a lunatic's estate for the payment of his debts. Berry v. Eogers, 
 2 B. Monr. 808. Moreover, in New York, a suit at law cannot be 
 brought against a lunatic, under the care of a committee, without per- 
 mission of the Court first obtained. Matter of Hopper, 5 Paige, 489. 
 ^ [The death of the lunatic determines the office of the committee, 
 and the only power which Chancery retains over the committee, as 
 such, is to compel him to account and deliver possession of the property 
 as the Court shall direct. But the committee is to retain possession, 
 and preserve the property until some person shall appear properly autho- 
 rized to receive it from him ; and in the meantime, if there is reason to 
 apprehend delay in ascertaining who are entitled to the possession, a 
 receiver may be appointed, upon application of the parties in interest. 
 The jurisdiction of Chancery in lunacy remains, after the death of the 
 lunatic, only to the extent and for the purpose of having the necessary 
 account taken, and directing the fund or estate to be paid over to the 
 party or parties entitled. After the death of the lunatic, the Court 
 will not administer the fund even for the benefit of creditors; they 
 must pursue their remedies before the ordinary jurisdictions ; nor will 
 it adjudicate questions of right between opposing claimants. Matter oi 
 Colvin, 3 Maryl. Ch. 278.] 
 
*BOOK IV. [*299] 
 
 OF THE FORMS OF PLEADING AND PROCEDURE BY "WHICH 
 THE JURISDICTION OF THE COURTS OP EQUITY IS EXER- 
 CISED. 
 
 CHAPTER I. 
 
 OF THE BILL, 
 
 We have now exhausted the consideration of the pre- 
 rogative jurisdiction of the Court of Chancery. But an 
 inquiry still remains as to the forms of pleading and pro- 
 cedure, 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 diflferent 
 objects which the two tribunals respectively contem- 
 plate. 
 
 The object of the common law Courts in their origi- 
 nal 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 
 
 ' [See some remarks upon the changes introduced into Chancery 
 Practice and Procedure, in England and the United States, in the 
 Preface of the present edition.] 
 
630 ADAMS'S DOCTRINE OF EQUITY. 
 
 law, from a jury on an issue of fact. By statutory en- 
 actments several distinct issues, both of law and fact 
 may now indeed be raised in the same 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 or 
 L J statement by the plaintiff of his cause of action. 
 This is followed by the defence, either by demurrer, if 
 the declaration be insuflScient in law, or by one or more 
 pleas, if it be untrue or incomplete in fact. If the de- 
 claration be untrue, the form of pleading is by denial, 
 disputing some material averment. If it be incomplete, 
 by confession and avoidance, admitting the declaration 
 to be correct, but averring some new fact to avoid or 
 vitiate the cause of action. On demurrers, ov 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 
 plaintiiF, and the pleadings are continued in the same 
 principle, each in turn superseding the rest, until all 
 matter of confession and avoidance is exhausted, 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 empanelled to try them. The manner 
 of trial by jury is that the evidence is given viva voce 
 and publicly, subject to cross-examination by the oppo- 
 site 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 
 
OF THE BILL. 631 
 
 appeal. There is, 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 surprise 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 judgment 
 entered, it -is still open to the unsuccessful party by mo- 
 tion 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 unsuccessful party, or to take his body in execu- 
 tion. 
 
 If there be error, and that error be apparent on the 
 face *of the record, there is an appeal by writ of 
 error from the decision of the Court below to the '- J 
 Exchequer Chamber or the House 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 discre- 
 tion 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 adj.usted for decision, by the Court, it is 
 not essential to keep them strictly distinct. The rules, 
 therefore, of pleading are less stringent than at law ; but 
 they are equally regulated by principle ; and in order to 
 secure adherence to such principle, every pleading, ex- 
 cept the formal replication, must be sanctioned by the 
 signature of counsel. 
 
 The commencement of a suit in equity on behalf of 
 
632 Adams's doctrike op equity. 
 
 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 husband 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 
 
 ^ [A married woman who has instituted a suit in the ordinary way, 
 may afterwards apply for an order to sue in forma pauperis : Wellesley 
 V. Wellesley, 16 Sim. 1 ; but cannot institute a suit in forma pauperis 
 without a next friend. Re Page, 17 Jur. 336 ; 16 Beav. 588. In 
 subsequent cases, however, before the Lord Justices of Appeal, a married 
 woman living apart from her husband, was allowed to sue informapau- 
 peris, on an affidavit of poverty, and that she could procure no person 
 to act as next friend, and this upon an ex parte application. Re Lan- 
 caster, 18 Jur. 229. 
 
 A person of color held in slavery, can sue in Chancery for his free- 
 dom only by a next friend. Doran v. Brazleton, 2 Swan, 149. 
 
 The executor or administrator of a decedent's estate is, in general, the 
 only proper party complainant in suits against third persons touching the 
 estate. Stainton v. Carron Co. 18 Jur. 137 ; Davidson v. Potts, 7 Ired. 
 Eq. 272. Parties interested, not being the legal personal representatives, 
 will not be allowed to sue persons possessed of assets belonging to the 
 estate, unless they satisfy the Court that such assets would probably be 
 lost, if the suit had not been instituted. Special circumstances must 
 always be made out. Such a bill would be supported in a case of a 
 deceased partner, where the relation between the executor and the sur- 
 viving partners was such as to present a substantial impediment to the 
 prosecution, by the executor, of the rights of the parties interested in 
 the estate against the surviving partners. There is a distinction, how- 
 ever, between a general administration suit, and one for the recovery of 
 particular outstanding assets. In the former, a residuary legatee, or 
 other person interested, may, on instituting suit against the executor for 
 the settlement of the general accounts, join the surviving partner, even 
 
OF THE BILL. 633 
 
 lunatic or an idiot, it is by the committee of his estate, 
 or sometimes 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 ob- 
 jects of a public charity, the complaint is preferred by 
 the Attorney or Solicitor-General, and the bill is not one 
 of petition or *complaint, but of information to |-.<,f^q-, 
 the Court of the wrong committed.* If the suit ■- -^ 
 does not immediately concern the rights of the Crown, 
 its officers generally depend on the relation of some per- 
 son, termed the relator, who is named on the record as 
 such, and is answerable for the costs ; and if such relator 
 
 (a) Mitf. on Plead. 24-30 ; 1 Dan. C. P. 72-132. 
 
 though no collusion be alleged or proved. This, however, does not 
 apply to a joint stock company, unless there be additional circumstances. 
 Stainton v. Carron Co. 18 Jur. 137 ; Travis v. Milne, 9 Hare, 141. In 
 Stainton v. Carron Co. the Court declined to sustain a bill filed by par- 
 ties interested in an estate, against a joint stock company of which the 
 testator was a member, and against which he had had claims, the ground 
 of the bill being that the executors were also managers in the concern, 
 and a conflict of duties and interests being feared, but no collusion or 
 intended neglect being alleged. One portion of a set of next of kin 
 cannot sue another portion, without an administrator as party, and it 
 makes no difierence that those who wish to sue, reside out of the State, 
 and cannot procure letters of administration. Davidson v. Potts, 7 Ired. 
 Eq. 272. 
 
 So to a suit by a creditor of an intestate, against an executor, de son 
 tort, for an account and payment, it is necessary that a personal repre- 
 sentative duly constituted should be a party. Creaser v. Robinson, 14 
 Beav. 589.] 
 
 ' [It is no longer necessary that the Attorney-General shall be a 
 party to proceedings in equity, in cases of public nuisance. A muni- 
 cipal corporation is a proper party in such case, where the nuisance is 
 within its limits. Com. of Moyamensing v. Long, 1 Pars. Eq. 146.] 
 
634 ADAMS'S DOOTRINK OF EQUITY. 
 
 has a personal ground of complaint, it is incorporated 
 with the information, and they form together an infor- 
 mation and bill. An information dijffers from a bill in 
 little more than name and form, and will therefore be 
 considered under the general head of bills, (aa) 
 
 An original bill or information consists of five prin- 
 cipal 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. (6) 
 It then commences with the words, " Humbly complain- 
 ing showeth unto your Lordship, your orator," &c., giving 
 the name, description, and place of abode of the plain- 
 tiff,' and, if necessary, of the next friend, committee, or 
 
 (ao) Blitf. on Pleading, 21-24. (6) 1 Dan. 339. 
 
 ^ 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. [The description of the plaintiff is a material portion 
 of the bill ; if it is absent, the objection may be taken by demurrer ; if 
 untrue, the objection may be taken by plea. But in the latter case the 
 plea must sufficiently aver that the description was false at the time of 
 filing the' bill. Smith v. Smith, 1 Kay, App. 23 ; Winnipiseogee Lake 
 Co. V. Worster, 9 Foster, 433. In New York, however, the omission 
 to state the complainant's addition or occupation is no longer a ground 
 for demurrer. Gove v. Pettis, 4 Sand. Ch. 403.] 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. [By the 20th rule in Equity of the United States 
 Courts, every bill must contain in the introductory part, the names, 
 places of abode, and citizenship of all the parties, plaintiffs, and defen- 
 dants.] 
 
OF THE BILL. 635 
 
 relator, (c) and then narrating the case for relief. Its 
 object is to show the right to relief; it must state a con- 
 sistent 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 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)^ 
 
 (c) Ibid. 340. 
 
 (d) Cholmondeley v. Clinton, T. & R. 117; 2 J. & W. 134; King 
 of Spain v. Machado, 4 Euss. 225 ; Bill v. Cureton, 2 M. & K. 508 ; 
 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. 
 
 ' See Richardson v. McKinson, Litt. Sel. Cas. 320; Terrill v. Craig, 
 Halst. Dig. 223; Thurman v. Shelton, 10 Yerger, 383; Mix v. Hotch- 
 kiss, 14 Conn. 32 ; [Swayze v. Swayze, 1 Stockt. 273. Parties having 
 conflicting interests, each claiming the title in the property in dispute 
 to be in himself, cannot unite as plaintiflFs ; and a bill containing an 
 averment that one of such plaintiffs is entitled, and, if he is not, the 
 other is, cannot be supported. Ellicott v. Ellicott, 2 Maryl. Ch. 468.] 
 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 demurrer 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. 
 Comstock 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. Emerson, 1 A. K. Marsh. 483 ; Scrimeger 
 V. Buckhannon, 3 A. K. Marsh. 219 ; Tilman v. Searcy, 5 Humph. 
 
636 ADAMS'S DOCTRINE OF EQUITY. 
 
 *It must state the case in direct terms fe) and 
 r*3031 -1 
 
 L -J with reasonable certainty ; not necessarily with 
 
 (e) Stansbury v. Arkwright, 6 Sim. 481 ; Hammond v. Messenger, 
 9 Sim. 327, 335. 
 
 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, 3 Munf. 384. But every material allegation should 
 be put in issue by the pleadings, so that the parties may be duly ap- 
 prised of the essential inquiry, and be enabled to collect testimony to meet 
 it. Kent, J., in James v. McKernon, 6 Johns. R. 564. Every aver- 
 ment, therefore, necessary to entitle a plaintiff in equity to the relief 
 prayed for, must be contained in the stating part of the bill ; and if 
 every necessary fact be not distinctly 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. Mclntyre v. Trustees of Union 
 College, 6 Paige, 239, 251. The best test of what are proper aver- 
 ments 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 merely principles of equity, or some of those pubUo 
 facts of which the Court is bound to take judicial notice without proof. 
 Canal Co. v. Railroad Co. 4 Gill. & J. 1 ; see, also, Shepard v. Shepard, 
 6 Conn. 37; Lingan v. Henderson, 1 Bland, 249, 255; Russ v. Hawes, 
 5 Ired. Eq. 18 ; Caton v. Willis, 5 Ired. Eq. 335 ; Salmon v. Clagett, 
 3 Bland, 134 ; Townshend v. Duncan, 2 Bland, 45 ; Fowler v. Saun- 
 ders, 4 Call, 361 ; Yancy v. Penwick, 4 Hen. & Munf 423; Crug^r v. 
 Halliday, 11 Paige, 314; Hobart v. Frisbie, 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. [General 
 allegations of fraud in a bill, where the facts stated do not make out a 
 case of fraud, will not avail on demurrer. Magniac v. Thomson, 2 Wall. 
 Jr. 209. Fraud must be expressly alleged, however, in order to enable 
 the complainant to rely on it, as a part of his case. Gouverneur v. 
 Elmendorf, 5 Johns. Ch. 79 ; Thompson v. Jackson, 3 Rand. 504 ; 
 
OF THE BILL. 637 
 
 the same technical precision as at law, but with suffi- 
 cient precision to show that there is a definite equity. 
 And if the equity depends on a title to property in the 
 
 Booth V. Booth, 3 Litt. 57 ; Miller v. Gotten, 5 Geo. 346 ; Sawyer v. 
 Mills, 20 L. J. Ch. 80 ; Hayward v. Purssey, 3 De G., & Sm. 399 ; 
 Small v. Boudinot, 1 Stockt. 273 ; Moore v. Greene, 19 How. 69, 
 Though where the bill states with distinctness and precision facts and 
 circumstances, which in themselves amount to fraud, such an allegation 
 totidem verbis is not rftbsolutely necessary. McCalmont v. Kankin, 8 
 Hare, 1 ; Skrine v. Simmons, 11 Geo. 401 ; Kennedy v. Kennedy, 2 
 Alab. 571. Unfounded allegations of fraud are discouraged; and where 
 the complainant introduces them into his bill, and fails to establish them, 
 he will debar himself, in general, from other relief, to which the facts 
 stated might otherwise have entitled him. Price v. Berrington, 3 Macn. 
 & Gord. 486 ; Eyre v. Potter, 15 How. U. S. 56 ; Fisher v. Boody, 1 
 Curtis, 211. It seems, however, that an unproved statement of circum- 
 stances which would amount to fraud, without an express charge of 
 fraud, is not sufficient to deprive him of relief. Waters v. Mynn, 14 
 Jur. 341.] Allegations that a complainant is informed and believes, 
 that material facts exist, are not sufficient. McDowell v. Graham, 3 
 Dana, 73; Jones v. Cowles, 26 Alab. 612. 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 defendant only, or must of necessity be within 
 his knowledge only, the precise allegation is not required : Aikin v. 
 Ballard, 1 Rice Eq. 13 ; as e. g., a bill in equity by a partner against 
 his copartner for an account, &c., wherein it is averred that the defen- 
 dant has all the partnership books and papers in his possession, or under 
 his control, and refuses to permit the plaintiff to examine them, 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 
 T. 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. v. 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. 369 ; see, also, Boston Co. v. 
 Worcester R. R. Corp. 16 Pick. 512. 
 
638 Adams's doctrine of equity. 
 
 plaintiff, the statement must show a sufficient title in 
 point of law ; e. g., the 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 manner 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.(/)^ 
 
 (/) 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 ; Steph. on Pleading, 841, 364, 
 383-6, 411 ; Walburn v. Ingilby, 1 M. & K. 61. 
 
 ' 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 defendant will be sustained, for the Court 
 cannot see that the plaintiffs are legatees. Martin v. McBryde, 3 Ired. 
 Eq. 531 ; see, also, Belloat v. Morse, 2 Haywood, 157 ; Van Cortlandt 
 V. Beekman, 6 Paige, 492. 
 
 2 See King v. Trice, 3 Ired. Eq. 568. 
 
 ' [Thus in England, and most of the United States, it is not necessary, 
 in a case within the Statute of Frauds, for the complainant to allege in 
 his bill that the contract or trust, with regard to which relief is asked, 
 was in writing ; though in Georgia, the rule is otherwise. Logan v. 
 Bond, 13 Geo. 192. But if the objection appears on the. face of the 
 bill, a demurrer will lie. Story Eq. Plead. § 503. So it is now settled, 
 that lapse of time, in cases directly within, or by analogy to the Statute 
 of Limitations, where it appears on the face of the bill, may be taken 
 advantage of by demurrer ; and it is incumbent on the complainant to 
 state, by way of anticipation, the facts and circumstances which he relies 
 on to take the case out of the operation of the general rules. Wisner v. 
 Barnet, 4 Wash. C. C. 631 ; Dunlap v. Gibbs, 4 Yerg. 94 ; Humbert 
 V. Rector of Trin. Ch. 7 Paige, 197, 24 Wend. 595;. Maxwell v. Ken- 
 nedy, 8 How. U. S. 210; Field v. Wilson, 6 B. Monr. 479; Ingraham 
 V. Regan, 23 Mississippi, 214; Bank U. S. v. Biddle, 2 Pars. Eq. 31; 
 Pratt V. Northam, 5 Mason, 95; Williams v. Presb. Soc. 1 Ohio St. N. 
 S. 478; Nimmo v. Stewart, 21 Alab. 682; Mayne v. Griswold, 3 Sandf. 
 S. C. 464; Story Eq. PI. § 484; contr. Bulkley v. Bulkley, 2 Day, 
 
OF THE BILL. 639 
 
 ; It is not, howeverj 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.^ 
 
 The charges of a bill ought not to include, and gene- 
 rally do not include, any narrative of the case for relief, 
 but are generally used for collateral objects ; e. g., for 
 meeting the defence by matter in avoidance, or by in- 
 quiries to sift its truth ; for giving notice of evidence 
 which might otherwise operate as a surprise ; 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 avoidance.^ 
 The form adopted for this purpose is that of pretence 
 and charge ; viz., an allegation that the defendant pre- 
 
 363 ; Hickman v. Stout, 2 Leigh, 6. But the laches must appear dis- 
 tinctly hy the bill itself. Muir v. Trustees, 3 Barb. Ch. 477 ; Battle v. 
 Durham, 11 Geo. 17- And a general demurrer, where all the grounds 
 of relief stated in the bill are not barred by lapse of time will be over- 
 ruled. Kadcliff V. Eowley, 2 Barb. Ch. 23.] 
 
 ' [See Story Eq. Plead. § 24. The Federal Courts of the United 
 States take judicial notice of the laws and jurisprudence of all the States 
 and Territories. lb. : Owings v. Hull, 9 Peters, 607.] 
 
 '^ As a general rule, it seems a bill in equity should combine the quali- 
 ties 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 defendant, and then charge the 
 real facts to lay a foundation for the discovery which is sought. Staf- 
 ford v. Brown, 4 Paige, 88. And in a sworn bill, it is equally perjury 
 for the complainant knowingly 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. 
 
 [The charging part of the bill is made unnecessary by the Equity 
 rales in the U. S. Courts (xxi), and in Pennsylvania (xx) ; the stating 
 part of the bill being substituted therefor.] 
 
640 ADAMS'S DOCTRINE OF EQUITY. 
 
 tends, &c., stating the defence, and then proceeding thus: 
 " whereas your orator charges the contrary to be true ; 
 and your orator charges that even if the said pretence 
 be true, yet that," &c., stating the new matter in avoid- 
 r*qn4.1 ^^^^- ^y ^^^^ means the *plaintiff is enabled to 
 state the avoidance on the record, without admit- 
 ting 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- 
 rally the safer course ; because by attempting to antici- 
 pate the defence, a risk is incurred of misunderstanding 
 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 avoidance, they 
 charge merely that the pretended facts are untrue, and 
 that so it would appear if the defendant 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 other- 
 wise operate as a surprise. 
 
 It is not requisite as matter of pleading that the evi- 
 dence should be set out in detail, for the facts proved, 
 and not the evidence, constitute the case for relief.^ The 
 
 ' To this point see Kuss v. Hawes, 5 Ired. Eq. 18 ; Dilly v. Heok- 
 rotte, 8 Gill. & J. 171; Jackson's Assignees v. Outright, 5 Munf.314; 
 Boone v. Chiles, 10 Peters, 177 ; White v. Yaw, 7 Verm. 357; Croc- 
 ker V. Higgins, 7 Conn. 342 ; Skinner v. Bailey, 7 Conn. 496 ; Hay- 
 ward V. Carroll, 4 Har. & J. 518 ; Parker v. Carter, 4 Munf. 273 ; 
 Miller v. Furse, 1 Bailey Eq. 187 ; Lingan v. Henderson, 1 Bland, 
 236 ; Townshend v. Duncan, 2 Bland, 45 ; Anthony v. Leftwioh, 3 
 
OF THE BILL. 641 
 
 system, however, of taking evidence secretly, the grounds 
 of which will be hereafter considered, would render it 
 possible to prove facts under a general statement, which 
 though strictly admissible as evidence of its truth, would 
 be practically a surprise on the opposite party. And 
 the Court, therefore, will generally refuse to act on such 
 evidence, and will refer the subject to a Master for re- 
 investigation. In order to prevent this result, it is fre- 
 quently advisable to give an outline of the evidence ; 
 and if the case is one in which the introduction of such 
 an outline would cause an inconvenient complexity of 
 narration, the statement may be confined to a bare alle- 
 gation 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 espe- 
 cially if it be of a mere verbal admission, it is still more 
 important to charge it in the bill. But the mere fact 
 that the *admission has not been specifically 
 stated or charged, does not render it inadmis- •- -I 
 sible as evidence, (j^)' 
 
 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 
 
 iff) Earie v. Pickin, 1 E,. & M. 547 ; McMahon v. Burehell, 2 Ph. 
 127. 
 
 Eand. 263 ; Morrison v. Hart, 2 Bibb. R. 4 ; Lemaster v. Burckhart, 
 H. 26 ; Bank U. S. v. Schultz, 3 Hamm. R. 62. 
 
 ' Where a fact is put in issue in a bill, evidence of confessions, con- 
 versations, 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. 
 Eldredge, 3 Stoiy, 183. 
 
 41 
 
642 Adams's doctrine of equity. 
 
 to the fact constituting the equitj, and to omit the evi- 
 dence 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 manner of notice, or of 
 encouragement. And it may, as already observed, be 
 in some cases convenient so to frame the statement. 
 
 A statement, however, of this general kind, although 
 it would let in evidence in its support, and would war- 
 rant an interrogatory in general terms, e. g., whether 
 the defendant had not notice, or whether he did not en- 
 courage the plaintiff, would not warrant minuter inter- 
 rogatories 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 interroga- 
 tories admissible, the plaintiff must insert specific alle- 
 gations, by which their relevancy may be shown, and 
 their propriety tested.' And it is not unusual to make 
 such allegation by way of charge, so as to avoid incum- 
 bering the statement. 
 
 In bills where a discovery by the defendant is of im: 
 portance, it is also usual to conclude by a charge that 
 the defendant has or formerly had documents in his pos- 
 session, 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 supplemental to 
 
 ' A defect in the charging part of a bill cannot be supplied by a sub- 
 sequent interrogatory ; and the interrogatories are to be construed by 
 the charging part of the bill. Mechanics' Bank v. Levy, 3 Paige, 606; 
 Parker v. Carter, 4 Munf. 273 ; James v. McKernon, 6 Johns. K.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. 
 
OF THE BILL. 643 
 
 the statement, and might have been included in the 
 statement itself, but that for convenience sake they are 
 subsequently *introduced, and are distinguished r*qna-] 
 by a peculiar form of commencement. In fact, 
 in many bills, where the circumstances of the case pre- 
 sent no danger 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 establishing the 
 plaintiff's case, rebutting that of the defendant, or ob- 
 taining discovery for one of those purposes. If any 
 matter be alleged which is not material, whether ds ir- 
 relevant 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 materia], yet excessive prolixity will be impertinent ; 
 as, for instance, if instead of giving the effect of a docu- 
 ment, 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 
 
 ' [The Court ought not at the commencement of the suit to treat as. 
 impertinent matter, that which at the hearing may be found to be rele- 
 vant. Eeeves v. Baker, 13 Beav. 436.] 
 
644 ADAMS'S DOCTRINE OF EQUITY. 
 
 an admission of its contents, the objection will not 
 apply, (gr)' 
 
 In many of the older precedents, we find an allegation 
 intervening between the statements and the charges 
 called the charge of confederacy. This is an allegation 
 that the defendants are confederating with certain un- 
 known parties to refuse justice to the plaintiff. And we 
 find also another allegation following the charging part, 
 called the averment of jurisdiction, which alleges that 
 the plaintiff can only obtain his remedy in the Court 
 |-^ „ of Chancery. The probability is *that these 
 L J forms originated in 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. 331-338 ; 
 Orders of 1845, 38^2. 
 (/i) Mitf. on Plead. 40^1. 
 
 ' In determining whether an allegation or statement in a bill is rele- 
 vant 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. Wol- 
 verton, 5 Paige, 522. A few unnecessary words in a bill do not render 
 the pleading impertinent. And the Master should not allow an excep- 
 tion 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 Jimc verba, but only so much thereof as is 
 material to the point in question ; and matter of inference or argument 
 is impertinent. Hood v. Inman, 4 Johns. C. E. 437. See also Woods 
 V. Morrell, 1 Johns. C. K. 103. 
 
 " [By the rules in Chancery in many of the States, the confederacy and 
 jurisdiction clauses are expressly made unnecessary. Rules U. S. Courts, 
 No. xxi; Penna. xx. The confederacy clause is insufficient, even on 
 
OF THE BILL. 645 
 
 The interrogatories are a series of questions intended 
 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 re- 
 lieved, and may answer on oath such of the interroga- 
 tories afterwards numbered and set forth, as by a note at 
 the end of the bill they are respectively required to an- 
 swer. The numbered interrogatories follow, and at the 
 foot of the bill a note is added, informing each defen- 
 dant which of them he must answer. 
 
 The old bills in Chancery contained no special inter- 
 rogatories, but merely required that the defendant should 
 answer the bill, and he was bound without further ques- 
 tioning to answer the whole. The interrogatories were 
 afterwards added to prevent misapprehension or eva- 
 sion, by inquiring not only as to the facts specifically 
 alleged, but as to circumstances of possible variation, e. 
 g., not only whether the defendant had received a speci- 
 fied sum, which might perhaps be evaded by a bare de- 
 nial, 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 
 therefore at first merely supplemental, framed to prevent 
 an evasive answer, but not exempting the defendant from 
 answering the bill itself, and they were accordingly pre- 
 faced by the words " that the said defendant may an- 
 swer the bill, and more especially that he may answer 
 the interrogatories." This, however, was inconvenient 
 in two respects : first, because it compelled trustees, and 
 
 demurrer, to avoid the effect of lapse of time, as an allegation of fraud ; 
 it is entirely inoperative and useless. Williams v. Presb. Soo. 1 Ohio, 
 St. N. S. 505.] 
 
646 ADAMS'S DOCTRINE OF EQUITY. 
 
 other persons who were affected 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 not 
 L -J look beyond them, and occasionally got into diffi- 
 culty by leaving unanswered some statement or charge 
 to which, either accidentally or intentionally, the plain- 
 tiff had omitted to interrogate/ 
 
 These objections are remedied by the present regu- 
 lation, which exempts a defendant from answering 
 
 ' 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 circumstances, 
 though not specially interrogated for that purpose ; the general interro- 
 gatory in the bill " that the defendant may full answer make,'' &c., being 
 sufficient. Methodist Church v. Jacques, 1 Johns. C. R. 65 ; Neale v. 
 Hagthorp, 3 Bland, 551; Hagthorp v. Hook, 1 Gill & J. 270; [Tucker 
 V. Cheshire R. R. 1 Fost. N. H. 29 ; Wootten v. Burch, 2 Maryl. Ch. 
 190.] 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. Ch. 182, 187 ; Devereaux v. Cooper, 11 Term. 
 103. But a defendant is not bound to answer an interrogatory not war- 
 ranted by some matter contained in a former part of the bill. Mecha- 
 nics' Bank v. Lynn, 1 Peters, 376 ; see also on this subject McDonald 
 V. McDonald, 16 "Verm. 630 ; Morris v. Parker, 8 Johns. C. R. 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. R. 316. [Where a bill charges generally that cer- 
 tain deeds were fraudulent and void, and also propounds special interro- 
 gatories based upon some of the allegations only, the defendants have 
 the right to answer all the allegations, whether specially interrogated or 
 not. Glenn v. Grover, 3 Maryl. R. 212.] 
 
OF THE BILL. 647 
 
 any statement or charge unless specially interrogated 
 thereto. (»y 
 
 The fourth part of the bill is the prayer for relief, or 
 as it would be more correctly termed, the statement of 
 relief required. The only portion of a bill which can 
 be accurately called a prayer, is the concluding part or 
 prayer of process, calling on the Court to issue the suh- 
 pcena. 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 an- 
 swer the interrogatories, and that your orator may have 
 the specified relief, may it please your lordship to grant 
 a writ of subpoena, requiring the defendant to appear by 
 a certain day, and to answer the bill, and abide the de- 
 cree 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 subsequent 
 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 efficiency to the Court, and which, 
 in all the opposing petitions, was the uniform subject of 
 complaint. When the writ of subpoena has issued, the 
 defendant is obliged to answer the interrogatories and to 
 
 (0 Woodroffe v. Daniel, 10 Sim. 243 ; 1 Dan. C. P. 347-360. 
 
 ' [A similar rule exists in the United States Courts (xl) ; see Wilson 
 V. StoUey, 4 McLean, 272 ; in Pennsylvania (xxxviii), and probably 
 other States : though see, contra, 7 Foster, 440 ; Pitts v. Hooper, 16 
 Geo. 442. And the general rule that a defendant who submits to 
 answer, must answer fully, is now so far modified, that he may protect 
 himself by answer to the same extent as he might by plea to discovery. 
 Rule, U. S. xxxix ; Penna. xliv.J 
 
648 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 
 r*qnqi ^*^*®™^'^* °^ relief, but only what is called the 
 •- -I *prayer for general relief, viz., "that your orator 
 may have such relief in the premises 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 suffi- 
 cient ; but the 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 actually prayed.' If it be 
 inconsistent it cannot be obtained f and, therefore, if the 
 
 ' See Colton v. Eoss, 2 Paige, 396 ; Wilkin v. Wilkin, 1 Johns. C. 
 K. Ill ; Allen v. CofFman, 1 Bibb, 469 ; Brown v. McDonald, 1 Hill's 
 C. K. 302 ; [Kelley v. Paine, 18 Alab. 371 ; Thomas v. Ellmaker, 1 
 Pars. Eq. 99 ; Stone v. Anderson, 6 Foster, 506.] But the relief to be 
 given under a general prayer in a bill must be agreeable to the ease 
 made by the bill, and not different from, or inconsistent with it. Chal- 
 mers V. Chambers, 6 Har. & J. 29 ; Wilkin v. Wilkin, sup. ; Franklin 
 v. Osgood, 14 Johns. K. 627; English v. Foxall, 2 Peters, 595; 
 McCosker v. Brady, 1 Barb. C. K. 329; Smith v. Trenton Falls Co. 3 
 Green C. K. 505 ; [Danforth v. Smith, 23 Verm. 247 ; Hilleary v. 
 Hurdle, 6 Gill, 105; Dunnock v. Dunnock, 3 Mkryl. Ch. 140; Hitch 
 V. Davis, Id. 266 ; Land v. Cowan, 19 Alab. 297.] But under the 
 general prayer, any relief warranted by the case as set forth in the bill 
 may be granted, though not orally asked for. Llngan v. Henderson, 1 
 Bland. 251. 
 
 ' No relief can be granted under the general prayer, entirely distinct 
 from and independent of the special relief prayed. Thomason v. Smith- 
 son, 7 Porter, 144 ; Foster v. Cook, 1 Hawks, 509 ; Chalmers v. Cham- 
 bers, 6 Har. & J. 29; Sheppard v. Starke, 3 Munf. 29; Butler v, 
 
OF THE BILL, 649 
 
 plaintiff doubt as to 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 chari- 
 
 Durham, 2 Kelley, 414. [Chapman v. Chapman, 13 Beav. 308 ; Dun- 
 nock V. Dunnook, 8 Maryl. Ch. 140 ; Thomas v. Ellmaker, 1 Pars. Eq. 
 99. Nor will the bill be amended so as to introduce a prayer for relief 
 inconsistent with the original prayer. Thomas v. Ellmaker, ut supr.] 
 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. [See Kelley v. Payne, 18 Alab. 371.] 
 
 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 complete relief. 
 Traip v. Grould, 15 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 " decree" is 
 erroneously inserted in the prayer for process of subpoena ; but if the 
 bill prays any relief whatever against a defendant, 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 Randolph, 95. [A bill for discovery which 
 concludes with a prayer that such other order might be made upon the 
 said defendant, as the nature of the case might require, is, nevertheless, 
 a simple bill of discovery. Southeastern R. R. Co. v. Submarine Tele- 
 graph Co. 17 Jur. 1044.] 
 
 ' 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. Ross, 2 Paige, 396 ; Foster 
 v. Cook, 1 Hawks, 509 ; Lingan v. Henderson, 1 Bland. C. R. 252 ; 
 McConnell v. McConnell, 11 Verm. 290 ; [Pensenneau v. Pensenneau, 
 22 Mo. 27.] 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. 
 
650 Adams's doctrine of equity. 
 
 ties and infants the proper directions will be given, with- 
 out regarding the language of the prayer. (A;) 
 
 The principal rules as to this portion of the bill are, 
 that it should point out with reasonable clearness 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 defendants, some of whom are 
 unconnected with a great portion of the case. If the 
 prayer is objectionable 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 to all,^ e. g., if a corporar 
 
 (/<;) Mitf. on Pleading, 38, 39 ; 1 Dan. C. P. 360-366; Cruikshank 
 V. McVicar, 8 Bea. 106, 110. 
 (0 1 Dan. C. P. 320-331. 
 
 ' [It is extremely diflScult if not impracticable to lay down any gene- 
 ral rule on the subject of multifariousness. The Court will be governed 
 by considerations of convenience in particular circumstances. Dunn v. 
 Cooper, 3 Maryl. Ch. 46. The objection is discouraged where it might 
 defeat the ends of justice. Marshall v. Means, 12 Geo. 61.] A bill is 
 multifarious, as the term is generally understood, where there is a mis- 
 joinder of distinct and independent causes of action. Gardiner J. Brady 
 V. McCosker, 1 Comstock, R. 221 ; Carmichael v. Browder, 8 How. Miss, 
 R. 252; [Savage v. Benham, 17 Alab. 119; Mcintosh v. Alexander, 
 16 Alab. 87 ; Boyd v. Hoyt, 5 Paige, 65 ; Marshall v. Means, 12 Geo. 61.] 
 Unconnected demands against diiferent estates cannot be united in the 
 same bill, though defendant is the executor in both. Daniel et al. v. 
 Morrison's Ex'r, 6 Dana's R. 186. [So a bill for an account against two 
 distinct partnerships, though one of the defendants is a partner in both 
 is multifarious. GriflSn v. Morrell, 10 Maryl. 364.] 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 Blaokf R. 249; 
 Davoue v. Panning, 4 Johns. C. R. 199 ; [Latting v. Latting, 4 Sandf. 
 Ch. 31 ; May v. Smith, 1 Busbee Eq. 196. But a bill filed by one exe- 
 
OF THE BILL. 651 
 
 tion were to hold one estate for public purposes, and an- 
 other for private charity, and a bill were filed on account 
 of both. In this case the objection is that the defendant 
 would be compellable to unite unconnected matters in 
 his answer and defence, and thus the proofs applicable 
 to each would be liable to confusion ; delays might be 
 occasioned by waiting *for the one when the 
 other was ripe for hearing, and different decrees ^ J 
 
 cutor of two estates for directions, &c., where the affairs of the estates 
 are so blended that it is necessary to proceed under both bills at once, 
 will not be multifarious. Carter v. Balfour, 19 Alab. 8 14. J 
 
 Where, in addition to the charge of adultery, a bill charges the hus- 
 band 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 ; Mulock v. Mulock, 1 Edw. 
 C. E. 14; Pomeroy v. Pomeroy, 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 in- 
 sertion therein of charges of unkind treatment or cruel usage. Beach 
 T. 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, or is asked. 
 Pleasants v. Glasscock, 1 Sm. & Mar. Ch. 17; Varick v. Smith, 5 
 Paige, 137; [Mayne v. Griswold, 3 Sandf. S. C. 464; Carpenter v. 
 Hall, 18 Alab. 439. So of a bill brought by several persons claiming 
 under a common title, but in different shares and proportions. Shields 
 V. Thomas, 18 How. U. S. 253. 
 
 Where there is a joinder of a legal and an equitable claim, and a prayer 
 for relief as to both, the bill is not multifarious. Varick v. Smith, 5 
 Paige, 137; Carpenter v. Hall, 18 Alab. 439. 
 
 To authorize the dismissal of a bill on final hearing on account of a 
 misjoinder of complaints, it must be of such whose interests are so di- 
 verse that they cannot be included in one decree, or at least must differ 
 so widely as to affect the propriety of the decree. Michan v. Wyatt, 21 
 Alab. 813.] 
 
652 ADAMS'S DOCTRINE OF EQUITY. 
 
 and proceedings might ultimately be required. The 
 Court, therefore, on the ground of convenience, will not 
 permit such a joinder. But the rule, being one of con- 
 venience only, is not absolutely binding, and may be 
 dispensed with if the claims be so far connected that a 
 single suit is more convenient, (w?)^ A converse prin- 
 ciple restrains the plaintiff 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 distri- 
 buted whilst contemplating the continuance of the part- 
 nership business. (?i) 
 
 Multifariousness of the second kind is where a plain- 
 tiff, having a valid claim against one defendant, joins 
 another person as defendant in the same suit, with a 
 large part of which he is unconnected,^ e. g., if a bill 
 
 (to) Shaokell v. Macaulay, 2 S. & S. 79 ; Attorney-Greneral v. Gold- 
 smiths' Company, 5 Sim. 670 ; Attorney-General 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. C. P. 316-319. 
 
 1 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. McKeen, Walk. Ch. K. 417; [Carroll v. Koosevelt, 4 Edw. Ch. 
 211 ; Dunn v. Cooper, 3 Maryl. Ch. 46.] 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 Sm. & M. 
 221 ; Baines v. MoGee, Ibid. 208. 
 
 " 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 dis- 
 cretion 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; 
 [Marshall v. Means, 12 Geo. 61; Butler v. Spann, 27 Miss. 284.] _ 
 
 Multifariousness, properly speaking, is where different matters, having 
 no connection with each other, are joined in a bill against several defen- 
 
OF THE BILL. 653 
 
 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 liti- 
 gation about the lease ; and he might object to the two 
 matters being united, as putting him to unnecessary ex- 
 pense. But in this case, as in the preceding one, if the 
 nature of the transactions make a single suit convenient, 
 the objection will not be sustained, (o)' 
 
 (o) Whaley v. Dawson, 2 Sch. & L. 367 ; Salvidge v. Hyde, Jac. 151 ; 
 Attorney-General v. Merchant Tailors' Company, 1 M. & K. 189 ; Camp- 
 bell V. Mackey, 1 M. & C. 603, 620 ; Sheehy v. Muskerry, 7 CI. & F. 
 1; Mitf. 181; Attorney-General v. Cradock, 8 M. & C. 85; Attorney- 
 General V. Corporation of Poole, 4 M. & C. 17-31 ; Parr v. Attorney- 
 General, 8 CI. & P. 409 ; 1 Dan. C. P. 820-326. 
 
 s, a part of whom have no interest in, or connection with, some of 
 the distinct matters for which the suit is brought ; so that such defen- 
 dants 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 connection. Newland v. Rogers, 3 Barb. 
 C. R. 432 ; [Ryan v. Shawneetown, 14 111. 20.] 
 
 See, in illustration of this statement, Stuart's Heirs v. Coalter, 4 
 Eand. 74; Coe v. Turner, 5 Conn. 86; Boyd v. Hoyt, 5 Paige, 65; 
 Swift V. Eckford, 6 Paige, 22 ; Jackson v. Forrest, 2 Barb. C. R. 566 ; 
 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; Glamorgan v. Guisse, 1 Miss. 141 ; Ingersoll v. Kirby, Walk. Ch. 
 R. 65; [Nail v. Mobley, 9 Geo. 278; Felder v. Davis, 17 Alab. 418 ; 
 Ayers v. Wright, 8 Ired. Eq. 229 ;] Hammond v. Michigan State Bank, 
 Walk. Ch. R. 214. 
 
 ^ Where the interests of different parties are so complicated in differ- 
 ent transactions, that 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. Ken- 
 
654 ADAMS'S DOCTRINE OF EQUITY. 
 
 The fifth and last part of a bill is the prayer or pro' 
 cess, which asks that a writ of subpoena may issue, di- 
 
 nedy, 2 Ala. 571. A bill against the executors of an estate, and all 
 those who purchased from them, is not upon that account alone multi- 
 farious. 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 execution of it by the latter, is not demurrable. Cooke v. 
 Evans, 9 Yerg. 287. A bill is not multifarious, where one general right 
 is claimed by the plaintiff, although the defendants may have separate 
 and distinct rights. Dimmock v. Bixby, 20 Pick. 368 ; Bugbee v. Sar- 
 gent, 23 Maine, 269 ; Curtis v. Tyler, 9 Paige, 432. [Nor because the 
 bill states more than one ground in support of the same claim. Barnett 
 V. Woods, 2 Jones Bq. 198.] To render a bill multifarious, it must con- 
 tain, 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 subject 
 of dispute. Watson v. Cox, 1 Ired. Eq. 389 ; Wheeler v. Clinton Can. 
 Bank, Harring. Ch. R. 449; Cornwell v. Lee, 14 Conn. 524; Eobert- 
 son V. Stevens, 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 ; [Worthy 
 V. Johnson, 8 Geo. 238 ; Larkins v. Biddle, 11 Alab. 252 ; Martin v. 
 Martin, 13 Mo. 36; Booth v. Stamper, 10 Geo. 109; Foss v. Haynes, 
 31 Maine, 81 ; Doub v. Barnes, 1 Maryl. Ch. 127; White v. Hall. 27 
 Miss. 419.] 
 
 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 Co. 9 Paige, 
 188. Where a bill is filed against the representatives of a deceased 
 partner, to obtain satisfaction of a copartnership 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 ; 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 con/esso below. Gibbs v. Clagett, 2 Gill & J- "> 
 
OF THE BILL. 655 
 
 rected to the parties named as defendants, and requiring 
 them to *appear and answer the bill, and to 
 abide by the decree when made. If a writ be ^ ^-'^^J 
 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 testi- 
 mony, 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 injunc- 
 tion against proceeding 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 Parliament. And it is therefore 
 usual, in the prayer of process, to ask a letter missive, 
 and on neglect thereof, a writ of subpoena. If the 
 Attorney-General is a defendant in his official capacity. 
 
 Grove v. Fresh, 9 G-ill. & J. 280 ; Bryan v. Blythe et al. 4 Blackf. 
 249; Avery V, Kellogg, 11 Conn. 562; Wellborn 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 ; [Betts v. Betts, 18 Alab. 787 ; Mobile &c. 
 S, R. V. Talman, 15 Alab. 472; Swayze v. Swayze, 1 Stockt. 273. The 
 objection of multifariousness, however, is one which may be taken on 
 the hearing; and, indeed, may then be made propria jure by the Court. 
 But it is not necessarily fatal, when thus interposed, and its allowance 
 rests in the direction of the Court. Story Eq. Plead. § 284, a. ; Sims 
 V. Aughtery, 4 Strob. Eq. 104 ; Felder v. Davis, 17 Alab. 425 ; Oliver 
 V. Piatt, 3 How. U. S. 333. 
 
 A demurrer for multifariousness goes to the whole suit, and if sus- 
 tained the bill should be dismissed, and not retained for partial relief. 
 Mcintosh V. Alexander, 16 Alab. 87 ; Boyd v. Hoyt, 5 Paige, 65 ; 
 Gibbs V. Claggett, 2 Gill & J. 14 ; Dunn v. Cooper, 3 Maryl. Ch. 46.] 
 
656 ADAMS'S DOCTRINE OP EQUITY, 
 
 the bill prays no subpoena, but simply that he being 
 attended with a copy may appear and answer. (^) In 
 certain cases also, where parties are joined as nominal 
 defendants, 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 omit- 
 ting 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, (g') 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 included 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. C. P. 368-371. (q) Ibid. 405-408. 
 
 ^ [In Wright v. Wright, 4 Halst. Ch. 143, a bill which contained no 
 prayer of process, and was not signed by counsel, was held demurrable. 
 In Grove v. Potter, 4 Sandf. Ch. 403, however, the want of signature 
 of counsel, was held to be ground for a motion to take a bill off of file, 
 but not for demurrer. 
 
 The illegibility of a bill is not ground for demurrer. Downer v. Staine, 
 4 Wise. 372.] 
 
OF PARTIES. 657 
 
 *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;^ 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 defen- 
 dants.' 
 
 * They only are parties defendant in a bill of Chancery, against whom 
 process is prayed, or who are specifically named and described as defen- 
 dants. Verplanck v. Merc. Ins. Co. of N. Y. 2 Paige, 438 ; Elmendorf 
 V. Delancey, Hopkins, 555 ; Lucas v. Bank of Darien, 2 Stew. 280 ; Green 
 V. McKinney, 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 v. McClarty's Heirs, 3 Litt. 274 ; Moore v. Ander- 
 son, 1 Ired. Eq. 411. The process alone, and the return upon it, govern 
 the question 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, 8 Dana, 306 ; Letcher v. Shroeder, 5 J. J. Marsh. 
 513. There must be service of process, actual or constructive. Estill 
 V. Clay, 2 A. K. Marsh. 497. 
 
 ' Trescott v. Smyth, 1 McCord's C. E. 301, 303. 
 
 ' See, on the general subject, Mechanics' Bank v. Seton, 1 Pet. 299 > 
 Story V. Livingston, 13 Pet. 359 ; Hussey v. Dole, 24 Maine, 20 ^ 
 
 42 
 
658 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 inte- 
 rested 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 pro- 
 per 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 inte- 
 rests 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 plaintiffs shall support one side, and all the de- 
 fendants the other side of the question in *issue. 
 L -'In equity, it is only requisite that the interests 
 
 MoConnell v. McConnell, 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 Rand. 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 ; De La 
 Vergne v. Evertson, 1 Paige, 181; West v. Randall, 2 Mass. 181; 
 Caldwell v. Taggart, 4 Pet. 190 ; Duncan v. Mizner, 4 J. J. Marsh. 
 447 ; Wendell v. Van Rensselaer, 1 Johns. C. R. 340 ; Wilson v. 
 Hamilton, 9 Johns. R. 442 ; Key v. Lambert, 1 Hen. & Munf. 380 ; 
 Burhans v. Burhans, 2 Barb. G. R. 398; Boughton v. Allen, 11 Paige, 
 321; [Carey v. Hoxey, 11 Geo. 645; Bailey v. Myrick, 36 Maine, 50; 
 Whitney v. Mayo, 15 111. 251 ; Society for Propagation of the Gospel 
 V. Hartland, 2 Paine C. C. 536; Hall v. Hall, 11 Texas, 526; Geisse 
 V. Beall, 3 Wis. 367.] All persons having the same interest should 
 stand on the same side of the suit ; but 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; [Whitney v. Mayo, 15 
 Illinois, 251.] 
 
OF PARTIES. 659 
 
 of the plaintiffs 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 al- 
 though a conflict of interests among the defendants 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 mortagee against 
 the mortgagor and a prior mortgagee, praying to redeem 
 the first mortgage, and that the mortgagor may then 
 tedeem 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 husband 
 must be joined as a party, unless he is an exile or has 
 abjured the realm.' If it be against an idiot or lunatic, 
 
 (a) Farquharson v. Seton, 5 Kuss. 45 ; Cottingham v. Shrewsbury, 
 3 Hare, 627 ; Sanford v. Morrice, 11 CI. & F. 667 ; Mitf. 81. 
 
 ' And although he is a certified bankrupt, he should be joined as a 
 party. Hamlin v. Bridge, 24 Maine, 145. So, in a suit by a husband 
 upon an interest in right of the wife, the wife must be a party. Schuy- 
 ler V. Hoyle, 5 Johns. C. R. 196 ; Griffith v. Coleman, 5 J. J. Marsh. 
 600; Ringo v. Warder, 6 B. Monr. 514; Booth v. Albertson, 2 Barb. 
 C. R. 313 ; [Johns v. Reardon, 3 Maryl. Ch. 57 ; Flowerton v. Wim- 
 bish, 2 Jones Eq. 328. See Smith v. Pincombe, 3 Macn. & G. 653. 
 
 Where a bill is in the name of husband and wife, yet only concerns 
 her separate estate, and no relief is asked for or against the husband, 
 but is only to establish her rights and protect her interests, he will be 
 regarded by the Court as her next friend or trustee. Michan v. Wyatt, 
 21 Alab. 813 ; Boykin v. Ciples, 2 Hill Eq. 200 ; Stuart v. Kissam, 2 
 
.660 ADAMS'S POCTEINE OF EQUITY. 
 
 the committee of his estate must be joined. (Z>) If the 
 superintendence of a public trust is involved, the Attor- 
 ney-General must be a party on behalf of the Crown. 
 And it is generally considered 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 immedi- 
 ate 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 
 residing within the British dominions or not, is ordi- 
 narily exempt from the jurisdiction. But he is compe- 
 tent to sue as plaintiff; and if he does so, he submits him- 
 PS141 ^^^^ ^^ ^^^ jurisdiction in respect of the *matter 
 sued for, and 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 
 
 (h) Mitf. on Plead. 30 ; 1 Dan. C. P. 160-170. [See Sturge y. 
 Longworth, 1 Ohio, N. S. 544.J 
 
 (c) Mitf. on Plead. 30 ; 1 Dan. C. P. 138-148 ; Duke of Brunswick 
 V. King of Hanover, 6 Bea. 1. 
 
 Barb. S. C. 492; Beny v. Williamson, 11 B. Monr. 245; Bein v. 
 Heath, 6 How. U. S. 228. Where, however, the bill seeks relief either 
 for or against the husband, the Chancellor should order it to stand over, 
 until it can be constructed so as to make the husband defendant, and to 
 substitute a next friend on the record ; and this whether the objection 
 be taken by demurrer, plea, or at the hearing. Miehan v. Wyatt, 21 
 Alab. 818.] 
 
 ' In a suit to enforce a contract made by the agent of the Auburn 
 State Prison, for the labor of the convicts, it seems that the Attorney- 
 General should be made a party. Jones v. Lynds, 7 Paige, 305 ; see, 
 also, Garr v. Bright, 1 Barb. C. E. 157, 164 ; [Harvard College v. 
 Society for Promoting Theological Education, 3 Gray, 280.] 
 
OF PARTIES. 661 
 
 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 corpora- 
 tion, in which their clerk or other officer may be made 
 a defendant, though unaffected by the relief sought, in 
 order that he may give discovery on oath, which the 
 corporate body cannot do. {dy If the' bill be for dis- 
 
 (d) Glasscott V. Copperminers' Company, 11 Sim. 305. 
 
 ' [The general rule is that an objection for nonjoinder or misjoinder of 
 parties ought to be made by demurrer, plea, or answer. If taken on the 
 hearing, it is discretionary with the Court to allow it. After hearing 
 and decree, it is too late to object. Bunnell v. Read, 21 Conn. 586 ; 
 Hunley v. Hunley, 15 Alab. 91 ; McMaken v. McMaken, 18 Id. 576 ; 
 Woodward v. Wood, 19 Id. 213 ; Gilbert v. Sutliff, 3 Ohio (N. S.) 
 129. In the case, however, of the omission of indispensable parties, 
 or when a complete and valid decree cannot be made, or the rights of 
 absent parties would be affected, the objection may be taken on the hearing 
 by the Court itself, ex mero motu, or for the first time, on appeal. 
 McMaken v. McMaken, 18 Alab. 576; Gould v. Hayes, 19 Alab. 438; 
 Woodward v. Wood, Id. 213 ; Chapman v. Hamilton, Id. 121. A de- 
 murrer for want of parties should point out the proper parties. Chap- 
 man V. Hamilton, 19 Alab. 121 ; Caldwell v. Blackwood, 1 Jones Eq. 
 274; Hightower v. Mustian, 8 Geo. 506. On demurrer, the bill is 
 not dismissed, but the complainant is at liberty to amend, except where 
 proper parties cannot be made. Hightower v. Mustian, ut supr. ; Smith 
 V. Kornegay, 1 Jones Eq. 40. See, as to mode of proceeding, where 
 objection taken by answer, Rules in Equity, U. S. Courts, No. Hi ; 
 Penna. No. 1. 
 
 Where a complainant amends according to the suggestions of the an- 
 swer, by the addition of parties, he cannot afterwards allege them to be 
 unnecessary, in order to dispense with a want of service on them. Moo- 
 die V. Bannister, 1 Drew. 514.] 
 
 ^ The case of oflScers 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. 
 [See Ayers v. Wright, 8 Ired. Eq. 229; Yates v. Monroe, 13 111. 212.] 
 
662 Adams's dootrike of equity. 
 
 coverj 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 re- 
 quires a person to be joined in a suit, there is, of course, 
 no difficulty as to persons against whom relief is ex- 
 pressly asked. But with respect to those who are inci- 
 dentally connected with the relief asked against others, 
 the line of demarcation is less easy to draw. The inte- 
 rests, however, which require such joinder seem gene- 
 rally 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 defen- 
 dant 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 illustrated 
 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. (/) 
 
 (e) Kerr v. Kew, 5 M. & C. 154. (/) 1 Dan. C. P. ch. 5, 
 
 But they can only be made parties for discovery, where relief is songlit 
 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. 
 
 [Where there is a charge of fraud in a transaction, in which an agent 
 participated, and it is so charged in the bill, he may be made a party, 
 and subjected to the costs of suit, even if no other decree be made 
 against him. Gartland v. Nunn, 6 Eng. Ark. 721. J 
 
OF PARTIES. 663 
 
 *1. The 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 interest, but affects the corpus of the 
 estate, all such persons ought to be parties, (gr) 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 make their joinder requisite ; e. g., the 
 interest of a mortgagee on a bill respecting the equity of 
 redemption, or the interest of an incumbrancer or other 
 prior and adverse claimant not privy to the contract, on 
 a bill for specific performance. (A)^ 
 
 (g) Brookes v. Burt, 1 Bea. 106. 
 
 (h) Devonsher v. Newenham, 2 Sch. & L. 199, 210 ; Lewis v. Zouche, 
 2 Sim. 388 ; Tasker v. Small, 3 M. & C. 63 ; Nelthorpe v. Holgate, 1 
 Goll.203. 
 
 ' Every party interested in land belonging to co-tenants is a neces- 
 sary party to a bill for partition. Borah v. Archers, 7 Dana, 176 ; 
 Newman v. Kendall, 2 A. K. Marsh. 284; Pope v. Melone, Ibid. 
 239. [So of tenants in common of chattels. Ramey v. Green, 18 
 Alab. 771.J 
 
 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 incum- 
 brancers or persons having an interest, existing at the commencement 
 of the suit, subsequent as well as prior in date, to the plaintiff's mort- 
 gage, must be made parties, otherwise they will not be bound by the 
 decree. Haines v. Beach, 3 Johns. C. R. 459 ; Ensworth v. Lambert, 
 4 Johns. C. R. 605; Porter v. Clements, 3 Ark. 364; Huggins v. Hall, 
 10 Ala. 283. Though a junior mortgagee 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 de- 
 
664 ADAMS'S DOCTRINE OF EQUITY. 
 
 The joinder of parties for protection of their own in- 
 terests is usually brought in question where such inte- 
 rests 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 modi- 
 fications, which, at first sight, appear to be exceptions, 
 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 re- 
 maindermen after an estate tail ; the second is the ex- 
 clusion of legatees or next of kin on bills for a debt or 
 legacy against the personal representative. 
 
 prived of the benefit of his purchase. Bank of the U. S. t. Carroll, 4 
 B. Monr. 40. 
 
 [The mortgagees who are vested with the legal title, are necessary 
 parties to a bill to redeem. So if a special authority be vested in one or 
 more of the mortgagees for the benefit of the whole, all must be joined. 
 If the mortgagee be only a trustee, his cestui que trust must be joined. 
 Woodward v. Wood, 19 Alab. 213 . In some cases it has been a question 
 how far a prior incumbrancer is a necessary party : see Finley v. Bank 
 U. S. 11 Wheat. 306; Post v. Mackall, 3 Bland. 495; Wakeman v. 
 G-rover, 4 Paige, 23 ; Cocron v. Middleton, 19 How. 113 ; Johnson v. 
 Brown, 11 Foster, 405 ; Miles v. Smith, 22 Missouri, 502 ; Story Bq. 
 PL § 185, 193. In Hagan v. Walker, 14 How. U. S. 29, the true rule 
 was held to be, that where it is the object of the bill to procure the sale 
 of land, and the prior incumbrancer holds the legal title, and his debt is 
 payable, it is proper to make him a party, in order that a sale may be 
 made of the whole title. But it is in the power of the Court to order a 
 sale subject to the prior incumbrance ; a power which it will exercise in 
 proper cases, as where the prior incumbrancer is not subject to, or is out 
 of the jurisdiction, and the validity of the incumbrance is admitted ; and 
 will in such case dispense with his being made a party. 
 
 Where a State occupies the position of a prior mortgagee, it need not 
 be made a party to a suit to foreclose a mortgage ; its right being para- 
 mount. Pattison v. Shaw, 6 Indiana, 377.] 
 
OF PARTIES. 665 
 
 The exclusion of remaindermen after an estate tail 
 originates in the possession by tenant in tail of an abso- 
 lute *power to destroy the remainders, so that he 
 alone represents the inheritance, and the subse- >- J 
 quent remaindermen have no interest to protect. If the 
 subsequent estates are independent of the estate tail, or 
 if that estate should determine during the suit, without 
 their destruction having taken place, the remaindermen 
 must be made parties, (ly 
 
 The exclusion of legatees or next of kin, on a bill for 
 a debt or legacy against the personal representative, ori- 
 ginates in the assumption that such legatees or next of 
 kin have in reality no interest in the object of the suit.^ 
 
 (i) Mitf. 173^; Lloyd v. Johnes, 9 Ves. 39-55; Gaskell v. Gaskell, 
 6 Sim. 643. 
 
 ' [See on this subject, Sohier v. Williams, 1 Curtis, 479 ; Lushington 
 i. Boldero, 13 Beav. 418 ; Beattie v. Johnston, 8 Hare, 169 ; Nodine 
 V. Greenfield, 7 Paige, 544. j 
 
 ' 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 seek- 
 ing to charge the general assets of the testator. Burwell v. Cawood, 2 
 How. U. S. K. 575 ; [Wiser v. Blachly, 1 Johns. Ch. 437 ; Watts v. 
 Gayle, 20 Alab. 824.] Nor are the general creditors proper parties in 
 Buoh a suit. Dias v. Bouchaud, 10 Paige, 445. Nor can a creditor 
 filing a bni against an executor make a debtor a party, unless under spe- 
 cial circumstances. Long v. Magestre, 1 Johns. C. R. 305. 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. McKinney, 1 
 McCord's C. R. 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. 
 
 [Though ordinarily a bill may be sustained by one legatee alone : 
 Pritchard v. Hicks, 1 Paige, 270; Brown v. Ricketts, 3 Johns. Ch. 
 553 ; Ramey v. G-reen, 18 Alab. 776 ; yet it is diflFerent as to a resi- 
 duary legatee, who must join all parties interested. Pritchard v. Hicks, 
 
666 ADAMS'S DOCTRINE OF EQUITY. 
 
 For although they are iu 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 important to them that the ability to meet 
 their claims should not be diminished ; but the personal 
 representative is not a trustee for them, nor have they 
 any interest in the estate itself, (k) 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,(?) or where their legacies are charged on 
 real estate. In this latter instance, however, a modifi- 
 cation has lately been 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 devise in trustees, who^are competent 
 to sell and to give discharges for the purchase-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 bene- 
 ficially interested parties to the suit. But the Court 
 may at *the hearing require them to be joined, 
 L ^^^J if it shall think fit.(ZZ) 
 
 2. The joinder of parties who have concurrent claims 
 with the plaintiff, which, if not bound by the decree, 
 
 (k) Hertford v. De Ziolii, 9 Bea. 11 ; Mitf. 168. 
 (0 Court V. Jeffery, 1 S. & S. 105. 
 
 (ZZ) 30th Order of August, 1841. [See Kules in Eq, U. S. Courts, 
 No. xlix ; Penna. xlvii.] 
 
 ut supr. ; West v. Eandall, 2 Mason, 181 ; Gould v. Hayes, 19 Alab. 
 438 ; see Sellings v. Bunigardner, 9 Gratt. 273.] 
 
OF PARTIES. 66T 
 
 might be afterwards litigated, is most directly illustrated 
 by cases in which a plaintiff sues on an equitable title, 
 and the legal title is vested in a trustee for him. In 
 these cases the trustee must be made 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 devisee 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 transferable 
 at law, must be a party to any suit by the assignee re- 
 specting it. (n)' 
 
 (m) Scott V. NicoU, 3 Kuss. 476. 
 
 (n) Cathcart v. Lewis, 1 Ves. J. 463 ; Walburn v. Ingilby, 1 M. & 
 K. 61. 
 
 1 [Malin v. Malin, 2 Johns. Ch. 238 ; Fish v. Howland, 1 Paige, 20 ; 
 Bank of America v. Pollock, 4 Edw. Ch. 215 ; Cassiday v. McDaniel, 
 8 B. Monr. 519 ; Carter v. Jones, 5 Ired. Eq. 196 ; Everett v. Winn, 
 1 Sm. & M. Ch. 67 ; McKinley v. Irwine, 13 Alab. 681 ; Swan v. 
 Dent, 2 Maryl. Ch. Ill ; Allen v. Simons, 1 Curtis, 122.] 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. 
 
 ^ It is not necessary to make the personal representatives of the mort- 
 gagor a party to a bill to foreclose or sell ; but upon the death of the mort- 
 gagee, 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 assignor, 
 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 ; 
 [Hopkins v. Hopkins, 4 Strobh. Eq. 207 ; Montague v. Lobdell, 11 
 Cush. Ill,] The assignor of a bond or note, the payment of which is 
 
668 ADAMS'S DOCTRINE OF EQUITY. 
 
 The same principle of requiring that all concurrent 
 claims shall be bound, is applicable to many cases which 
 
 secured by a mortgage, should be made a party to a suit by the assio'nee 
 to foreclose the mortgage. Bell v. Schroek, 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. Gatewood v. Rucker, 1 Monr. 
 21; Forman v. Eodgers, 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 ma- 
 chine may join his assignor as co-plaintiflF in a suit for a violation 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 Modr. 338 ; Pemberton v. Riddle, 5 Monr. 401 ; Cooper v. 
 Gunn, 4 B. Monr. 594. See, as to the joinder of the assignor in a 
 judgment creditor's bill filed by the assignee, Morey v. Forsyth, Walk. 
 0. R. 465 ; Beach v. White, Walk. C. R. 495. 
 
 Where the assignment is absolute and unconditional, and leaves no re- 
 maining right or liability in the assignor which can be affected by the 
 decree, the assignee need not make the assignor a party. Thus, as- 
 signors are not necessary parties to suits by assignees on bonds, where 
 there are statutes authorizing the assignment of bonds. See Snellingv. 
 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 judg- 
 ment, which is a Hen on land mortgaged, is assigned absolutely and 
 unconditionally, the assignor is not a necessary party to a bill for fore- 
 closure. 
 
OF PARTIES. 669 
 
 fall under the first head of interest. For where an inte- 
 rest exists which requires protection, it is possible that 
 a claim exists in respect of that interest, and the defen- 
 dant is entitled to have all such claims settled together, 
 so that the matter may be completely and efiectually 
 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 aflfects himself and his partial interest alone, al- 
 though in some sense it relates to the entire subject- 
 matter; e. g., where an occupier complains of an injury 
 to 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, al- 
 though other parties have been similarly defrauded. (^) 
 *And, in like manner, one of several cestuis que 
 trust may proceed separately for his share of the ^ -^ 
 fund, where the respective shares have been already as- 
 certained.^ But it is otherwise if an account be neces- 
 sary to ascertain the shares, if the fund itself has been 
 lost and its replacement is required, or if the entirety is 
 in any way to be dealt with. And it is doubtful whe- 
 ther a trustee can ordinarily be compelled to divest him- 
 self of any part of his trust, unless all the cestuis que 
 
 (o) Munch V. Cockerel], 8 Sim. 219, 231. 
 
 (p) Tooth V. Dean of Canterbury, 3 Sim. 61 ; Semple v. Birming- 
 ham Railway, 9 Sim. 209 ; Blaia v. Agar, 2 Sim. 289 ; Mare v. Mala- 
 chy, 1 M. & C. 559 ; Turney v. Borlase, 11 Sim. 17 ; Bridget v. Hames, 
 1 Coll. 72. 
 
 ■ [Hares v. Stringer, 15 Beav. 206; Piatt v. Oliver, 2 McLean, 307 ; 
 see Chapman v. Hamilton, 19 Alab. 121. See now, in England, 15 
 and 16 Vict. c. 86, s. 42 ; Macleod v. Annesley, 17 Jur. 612.] 
 
670 ADAMS'S DOCTRINE OF EQUITY. 
 
 trust are before the Court, so that he can get rid of the 
 whole, {q) 
 
 The operation of the rules requiring that all persons 
 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 incon- 
 venience, by compelling the joinder of claimants in 
 small amounts, who would willingly have left their 
 rights in the hands of the Court rather than to incur 
 the expense of appearing to litigate 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 proceeding without the necessity of appear- 
 ing to the bill ; subject, however, to the discretion of 
 the plaintiff as to whether he will compel such an ap- 
 pearance, and to that of the defendant as to whether he 
 will submit to be bound without it.' The person pos- 
 sessing the interest must still be a party, but by the 
 operation of these orders he may be so without serious 
 expense, (r) 
 
 3. The joinder of parties who are liable to exonerate 
 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 com- 
 plete decree, and a final ascertainment of the amount 
 of liability, *so that any one of the parties liable, 
 ■- -I on satisfying the plaintiff, might obtain contri- 
 bution from the rest.^ 
 
 (g) Munch v. Cockerel!, 8 Sim. 219, 231 ; Henley v. Stone, 3 Bea. 
 355 ; Goodson v. Ellison, 3 Russ. 583. [Lenaghan v. Smith, 2 Phil- 
 lips, 302.] (r) Supra, Prayer of Process. 
 
 • [See Eules in Eq. U. S. Courts, No. liv ; Penna. No. lii.] 
 
 " See Purcell v. Maddox, 3 Munf. 79. Where a judgment is a lien 
 
OF PARTIES. 671 
 
 On this principle, it was held, that if several parties 
 were co-obligors in a joint and several bond, they were 
 all necessary parties to a suit for payment, with the ex- 
 ception of such as were mere sureties, and, therefore, 
 not liable to contribution. («)' So, if several trustees 
 had committed a breach of trust, they must have been 
 all parties to a suit for redress; but if the act complained 
 of were an actual fraud, no right of contribution arose, 
 and any one might be sued alone.(<)^ It was in like 
 manner unnecessary to join an insolvent in the suit, 
 because, whether liable or not, he was unable to contri- 
 bute, (m) 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, («)' nor against an heir-at-law for 
 
 (s) Bland v. Winter, 1 S. & S. 246. 
 
 (t) Seddon v. Connell, 10 Sim. 79 ; Attorney-General v. Wilson, 1 
 Cr. & Ph. 1 ; [Oliver v. Piatt, 3 How. U. S. 333 ; Cunningham v. 
 Pell, 5 Paige, 612.] (u) Seddon v. Connell, 10 Sim. 79. 
 
 _ (y) Brooks v. Stuart, 1 Bea. 512. 
 
 on different parcels of land, in a suit by one of the several owners against 
 the judgment creditors, he must, in order to a decree for contribution, 
 make all the persons interested parties. Avery v. Petten, 7 Johns. C. 
 R. 211. See also Campbell v. Mesier, 6 Johns. C. K. 21 ; Hooper v. 
 Soyster, 1 Munf. 119 ; Venable v. Beauchamp, 3 Dana, 321. 
 
 ' So all the obligors in a bond should be made parties to ^ bill brought 
 to obtain relief against it, unless in a special case of collusion. Pollard 
 v. Collier, 8 Ham. 43. 
 
 ' In White v. Turner, 1 B. Monr. 130, it was held, that all the per- 
 sons concerned in suppressing a will, by which slaves who were emanci- 
 pated are thereby retained in slavery, are jointly liable to a decree for 
 damages ; and if one of the parties has died, his representatives should 
 be made parties to the suit for freedom. 
 
 ' Eoane y. Pickett, 2 English's Ark. 510. So the principal debtor 
 
672 ADAMS'S DOCTRINE OP EQUITY. 
 
 payment of debts, without the executor ;{w) but an 
 order has now been made, directing that if the plain- 
 tiff's demand be several as well as joint, and whether 
 the defendants be liable as principals or sureties, he may 
 proceed against all or any at his own option, (x) 
 
 It sometimes happens, that compliance with the rule 
 requiring the 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, pro- 
 i-,.,^^-, vided *the interest of every absent member in 
 
 r 3201 • .... 
 
 •- -I the claim made or resisted is identical with that 
 of the members who are personally before the Court.^ 
 
 (w) Knight V. Knight, 3 P. Wms. 333. 
 
 (a;) 32d Order of August, 1841. [See Rule li, U. S. Courts in Eq.; 
 Penn. xlix.J 
 
 must be a party in a bill by a surety against the creditor for relief. Vilas 
 V. Jones, 1 Comst. R. 284, Bronson, J. So also he must be in a bill 
 by a co-surety to make another contribute. Trescot v. Smyth, 1 
 McCord's C- R. 301. [Where a party liable to contribute is insolvent, 
 he need not be joined on the bill. Watts v. Grayle, 20 Alab. 817 ; 
 Montague v. Turpin, 8 Gratt. 453. But the insolvency must be at the 
 time of bill filed. Young v. Lyons, 8 Gill, 162.] See, in addition, as 
 to these points, note, page 269, supra. 
 
 ' [See, upon this subject, Clements v. Bowes, 1 Drewr. 684; 16 
 Jur. 96 ; Macbride v. Lindsay, 9 Hare, 574 ; Long v. Storie, 22 L. J. 
 Ch. 200 ; Salomons v. Laing, 12 Beav. 377 ; Duke of Devon v. Eglin, 
 14 Id. 530 ; Mullock v. Jenkins, Id. 628 ; Harmer v. Gooding, 3 De 
 G. & Sm. 407; Carey v. Hoxey, 11 Geo. 645; Putnam v. Sweet, 1 
 Chand. Wise. 287; Hill v. Commiss. 1 Pars. Eq. 501; Smith v. 
 Swormstedt, 16 How. U. S. 288 ; Whitney v. Mayo, 15 Illinois, 251; 
 Thornton v. Hightower, 17 Geo. 1. Numerousness does not always 
 and necessarily constitute an exception to the general rule, that all 
 parties interested must be joined : it is only where they are so very 
 
OF PARTIES, 673 
 
 The most ordinary instances of this dispensation are 
 in suits by creditors or legatees. For as a single creditor 
 or legatee ma^ 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 inconvenient in the adminis- 
 tration and burdensome on the fund administered. (2/)' 
 
 (y) Mitf. 166. 
 
 numerous that to join them would be impracticable, without almost inter- 
 minable delays and other inconveniences, which would obstruct aiid pro- 
 bably defeat the ends of justice. Carey v. Hoxey, 11 Geo. 645. 
 Whether a case is within the exception is a matter of discretion with 
 the Chancellor, and he must be fully advised by allegation and proof of 
 the extent of the litigation. Ibid. ; Society for Propagation of Gospel 
 V, Hartland, 2 Paine C. C. 536. Thus, on a bill filed by some next of 
 kin, on behalf of themselves and all others, the Court will direct that 
 some evidence be produced to show that the others were inconveniently 
 numerous, before the decree is drawn up. Leathart v. Thome, 15 
 Jur. 162, 762. On a bill by some shareholders of a company on behalf 
 of the rest, the directors, so far as no relief is sought against them, do 
 not constitute a distinct class from the rest, so as to be necessary parties. 
 Clements v. Bowes, 16 Jur. 96 ; 1 Drewr. 684. But a bill on behalf 
 of all shareholders, complaining of transactions in which some have con- 
 curred, cannot be maintained. Kent v. Jackson, 14 Beav. 369 ; 2 Do 
 6. Macn. & G. 49. 
 
 See, also, Eule No. xlviii, U. S. Courts in Equity ; No. xlvi, Penna. 
 by which it is provided that wliere the parties are very numerous, the 
 Court may, in its discretion, dispense with the joinder of all.] 
 
 ' One legatee may file 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. R. 553 ; Davoue 
 V. Fanning, 4 Johns. C. R. 199. But see Hallett v. Hallett, 2 Paige 
 C. R. 15, in which it was held that one residuary legatee may file a bill 
 
 43 
 
674 ADAMS'S DOCTRINE OF EQUITY. 
 
 The rule, however, is not confined to cases of this class, 
 but has been extended to other cases where several per- 
 sons have distinct 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 without bring- 
 ing 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 de- 
 cree until it is satisfied that the interest of all is fairly 
 represented, and that there would be a preponderating 
 inconvenience in bringing them individually before it.{z) 
 The same principle applies where there is a common 
 right against the defendants, e. g., where relief is sought 
 on behalf of a partnership or other numerous body 
 against strangers, or on behalf of all the members of 
 
 (z) Mitf. 167; Harvey V. Harvey, 4 Bca. 215; Hawkins v. Hawkins, 
 1 Hare, 543. 
 
 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 far the complain- 
 ant to file the bill in behalf of himself and of all other creditors in the 
 same situation, when it appears upon the face of the bill that there will 
 be a deficiency in the fund, and that there are other creditors entitled 
 to a ratable proportion with the complainants. Bias v. Bouchard, 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, Riley's Cn. 
 138 ; Cherry v. Belcher, 5 Stew. & Port. 133 ; Turley v. Young, 5 J. 
 J. Marsh. 183 ; Richardson v. Hunt, 2 Munf 148. 
 
OF PARTIES. 675 
 
 such body except the defendants, against members who 
 have committed a wrong. Such a bill has accordingly 
 been sustained on behalf of a company against 
 the directors to redress or *prevent a misapplica- >- J 
 tion of the funds, (a) On behalf of the inhabitants of a 
 parish against the commissioners under an act of Parlia- 
 ment to restrain an injury to their common right, (6) 
 and on behalf of a company against third parties to en- 
 force or rescind a contract, or to obtain an injunction 
 against proceedings at law.(c)' And e canverso it has 
 
 (a) Chancery v. May, Pr. in Ch. 592 ; Hichens v. Congreve, 4 Kuss. 
 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. Blanshard, 4 Hare, 9 
 and 290. 
 
 ' Where the associates or shareholders of a private association are 
 numerous, a bill may be filed by one of such associates, on 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 association among the shareholders. 
 And it is not necessary that all of the associates should unite in a bill 
 for that purpose. Mann v. Butler, 2 Barb. C. R. 362; Beatty v. Kurtz, 
 2 Peters, 566; The New London Bank v. Lee, 11 Conn. 112. But the 
 others must either be made parties defendant, or thft suit must profess 
 to be as well in their behalf as that of the complainants. Whitney v. 
 Mayo, 17 Illinois, 252. Where a large number of persons are asso- 
 ciated 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 
 having the legal title be made parties defendant or complainant in a bill 
 in equity. Martin v. Dryden, 1 Gilm. 187. 
 
 But a bill will not lie by a freeholder or inhabitant of a town, in be- 
 half 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 incorporated company file a bill against 
 
676 ADAMS'S DOCTRINE OF EQUITY. 
 
 been 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, provided 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.(cZ) 
 
 In order, however, that the principle of the exception 
 may apply, it is essential that the parties represented 
 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 
 
 (i^) Meux V. Maltby, 2 Sw. 277 ; Adair v. New Eiver Company, 11 
 Ves. 429 ; Lanchester v. Thompson, 5 Mad. 4, 13 ; Attwood v. Small, 
 9 Law J. Ch. 132 ; 6 CI. & P. 232. 
 
 the agent and treasurer of the company for misconduct and account; 
 such a bill should emanate from and be filed in the name of the corpo- 
 rate body. In some cases individual stockhoHers 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. R. 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. 677 
 
 unless all the partners were parties, because every one 
 of the absent partners would have a separate and sub- 
 stantial interest in the question of right, (e)^ 
 
 *It appears to have been at one time consi- 
 dered impossible that any bill for winding up a ^ -' 
 partnership should be sustained unless a dissolution were 
 also sought, and every partner were personally joined. 
 In the case of unincorporated joint stock companies, and 
 of other numerous partnerships, this rule operated prac- 
 tically as a denial of relief, but it has been relaxed, as 
 we have already seen, in their favor, and bills have been 
 sustained which asked more limited relief, viz., that the 
 assets of such partnership, on its abandonment or insol- 
 vency, '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. 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 directors of the company. And it has 
 been suggested that, even on a bill praying a dissolution, 
 the presence of all might, perhaps, be dispensed with, 
 provided there were a strong necessity shown, and suffi- 
 cient parties were before the Court to represent each 
 
 (e) Beaumont v. Meredith, 3 V. & B. 180 ; Evans v. Stokes, 1 K. 
 24; Van Sandau v. Moore, 1 Russ. 441; Long v. Yonge, 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. Benjamin, 23 Maine, 255. See 
 also Hoy v. McMurry, 1 Litt. 364 ; Dozier v. Edwards, 3 Lit. 67 ; 
 Noyes v. Sawyer, 3 Verm. 160. Yet see Townsend v. Auger, 3 Conn. 
 354. 
 
678 ADAMS'S DOCTRINE OF EQUITY. 
 
 conflicting interest, and to discuss the questions freely 
 and without restraint. (/) 
 
 In cases where persons interested are out of the juris- 
 diction of the Court, it is suJBBcient 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 dis- 
 pensed with.(5')i 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 their rights are incidental to 
 those of parties before the Court, a complete determina- 
 l-^ tion may be obtained. *But if they are to be 
 
 ■- -^ active in performing the decree, or if they have 
 rights wholly distinct from those of the other parties, 
 the Court, in their absence, cannot proceed to a deter- 
 mination against thera.(7i)^ The powers conferred by 
 
 (/) Supra, Partnersliip ; Wallworth v. Holt, 4 M. & C. 619 ; Eich. 
 ardson v. Larpent, 2 N. C. C. 507 ; Richardson v. Hastings, 7 Bea. 
 301, 323; Clough v. Eadcliffe, 1 De G. & Sm. 164; Apperly v. Paige, 
 1 Ph. 779 ; Wilson v. Stanhope, 2 Coll. 629. 
 
 (gr) Burton v. Egginton, 1 Hare, 488 ; Munoz v. De Mastet, 1 Bea. 
 109. 
 
 (7i) Mitf. on Pleading, 32; Pell v. Brown, 2 B. C. C. 276; Browne 
 V. Blount, 2 Euss. & M. 83; Willats v. Busby, 5 Bea. 193; 1 Dan. C. 
 P. 199-200. 
 
 ' See Spivey v. Jenkins, 1 Ired. Eq. 126 ; Milligan v. Milledge, 3 
 Cranch, 220 ; Lainhart v. Eeilly, 3 Desau. 590. [Rule No. xlvii, U. 
 S. Courts in Eq.; No. xlv, Penna.J 
 
 ' See Joy v. Wirtz, 1 Wash. C. C. R. 517 ; Mallow v. Hinde, 12 
 Wheat. 193; [Corron v. Mellaudon, 19 How. 113.] In a suit to recover 
 a debt against the estate of a deceased partner, the other partners are 
 proper and necessary parties ; and, although when they are out of the 
 jurisdiction the Court they may be dispensed with, yet this exception 
 
OF PARTIES. 679 
 
 statute of serving such parties with process abroad, and 
 thus bringing them before the Court, will be presently 
 considered. 
 
 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 know- 
 ledge, 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. EusscU v. Clark, 7 Cranch, 69 ; [but see now the Kule 
 in Equity, No. xlvii.] 
 
680 Adams's doctrine of equity. 
 
 [*324] *CHAPTER III. 
 
 OF PROCESS AND APPEARANCE. 
 
 After the bill has been filed it is next requisite that 
 the subpoena should be served; that the defendant should 
 enter his appearance ; and that after appearance he 
 should put in his defence. The defence may, as we 
 shall hereafter see, be of four kinds, Disclaimer, Demur- 
 rer, Plea, and Answer. But the most usual form, and 
 the only one to which compulsory process applies, is that 
 of answer. 
 
 The ordinary service of subpoena is by delivering a 
 copy to the defendant personally, dr leaving one at his 
 place of actual residence. And in special cases, where 
 an absconding or absent defendant has a recognized agent 
 in the matter litigated, substituted service on such agent 
 has been allowed. (a)' But as a general principle the 
 Court has no inherent authority to dispense with service 
 on the defendant himself, or to authorize any service 
 beyond the limits of its own jurisdiction. (6)^ 
 
 (a) Hobhouse v. Courtney, 12 Sim. 140 ; Murray v. Vipart, 1 Ph. 
 521. 
 
 (6) Whitmore t. Kyan, 4 Hare, 612. 
 
 ' [See on this subject, Eckert v. Baeert, 4 "Wash. C. C 370; Ward 
 V. Seabry, Id. 426, 472.] 
 
 ^ [In some of the States, publication is authorized by statute, in the 
 case of non-resident defendants. Such provisions have been held to in- 
 
OF PROCESS AND APPEARANCE. 681 
 
 Assuming the subpoena to be duly served, the defen- 
 dant must next appear. If he be contumacious and re- 
 fuse, 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 defendant's 
 person should be attached. To this writ the sheriff 
 might return, 1. That he had the defendant in custody; 
 2. That he had taken him, but had accepted bail ; 3. That 
 he could not *find him within his bailiwick. On 
 
 the first of these returns being made, the defen- ■- ' J 
 dant 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 re- 
 turn, that of non est inventus, the next process of con- 
 tempt 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 ap- 
 pointed by the Court, and extending into all the coun- 
 ties 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 Fleet ; 
 or made a return of non est inventus, upon which fol- 
 lowed. 
 
 An order that the serjeant-at-arms, as the immediate 
 officer of the Court, should effect the arrest. If an ar- 
 rest were made under this process, it was followed, like 
 other arrests, by committal to the Fleet. But if the re- 
 
 clude lunatics in their effect. Sturges v. Longworth, 1 Ohio St. N. S. 
 550.] 
 
682 ADAMS'S DOCTRINE OF EQUITY. 
 
 turn were non est inventus, there was no further process 
 against the person. 
 
 5. A writ of sequestration, issuable only on the return 
 non 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 sequester the rents and profits. If 
 the sequestration proved ineffectual, there was no fur- 
 ther 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 execution of process, it was not murder, (c) 
 
 *In the case of a person having privilege of 
 L J peerage or Parliament, and exempt, therefore, 
 from committal for civil contempt,(J) a sequestration 
 nisi was substituted for an attachment, which if no 
 cause were shown was afterwards made absolute. In 
 the case of a corporation, which cannot be attached, the 
 first process was by distringas, and the second by seques- 
 tration. 
 
 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 resisted to a se- 
 questration, the plaintiff was not restricted to that re- 
 medy, but on issuing the writ, might apply to the Court 
 to take his bill pro confesso, and to decree against the 
 defendant on the assumption of its truth. 
 
 If a decree were ultimately made against the defen- 
 dant, its performance was enforced by a like process of 
 
 (c) 1 Smith, C. P. 571. 
 
 (c^) Wellesley's case, 2 K. & M. 639. 
 
OF PROCESS AND APPEARANCE. 683 
 
 contempt, with the exception that the attachment was 
 not bailable. 
 
 In addition to other inconveniences of being in con- 
 tempt, it has the effect 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 con- 
 tempt, 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 re- 
 quired act, his committal was practically imprisonment 
 for life. 
 
 Several attempts have been made by the Legislature 
 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 contempt, 
 applied ^especially to three classes of persons ; p^„n„-, 
 viz., absconding defendants, privileged defen- •- -I 
 dants, and defendants in custody under process. In re- 
 spect to the former class, it authorized the Court to make 
 an order for the defendant's appearance, and on due 
 publication of such order to dispense with both service 
 and appearance, and proceed at once to take the bill 
 pro con/esso. In respect to the other two classes, it au- 
 thorized an appearance to be entered for them ; shortened 
 the steps for taking the bill pro con/esso, and con- 
 ferred on bills taken jp?-o con/esso under it additional efii- 
 
 (e) 1 Dan. C. P. 460. 
 
684 Adams's doctrine of equity. 
 
 Cacy, 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, provided 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 tinae, the plaintiff should 
 proceed according to the nature of the Contempt to enter 
 an appearance for him, or to have his bill taken pro cbn- 
 fesso, and that in default of his so doing, the defendant 
 should be discharged. 
 
 The case of absent defendants, not having absconded 
 to avoid process, was provided for to a limited extent by 
 2 Wra. 4, c. 33, and 5 Wm. 4, c. 82, authorizing service 
 abroad. But those acts applied to such suits only as had 
 reference to hereditaments in England, Wales, or Ireland, 
 or to incumbrances thereon, 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 " facili- 
 tating the Administration of Justice in the Court of Chan- 
 cery," and by the general orders made under them.(/) 
 
 The present process of the Court for enforcing obe- 
 dience is chiefly regulated by those orders, and it is 
 therefore *necessary to point out in what re- 
 L -^ spects they have modified the previous system. 
 
 1. They have remedied some of the diflSculties re- 
 specting service of process, by directing that where a 
 defendant, having been in this country within two years 
 before the subpoena issued, appears to have absconded' to 
 
 (/) 3 & 4 Vict. c. 94 J 4 & 5 Vict. c. 52 ; 8 & 9 Vict. c. 105. 
 General Orders of August, 1841 ; April, 1842 ; and May, 1845. 
 
OF PROCESS AKD APPEARANCE. 685 
 
 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, (g^) 
 
 2. They have shortened the process of contempt by 
 abolishing the writ of attachment with proclamations, 
 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-appearance, (/t) 
 
 3. They have provided for defaults in appearance, by 
 distinct regulations for the several cases of an adult and 
 capable defendant served within the jurisdiction, of an 
 absconding defendant on whom an order to appear has 
 been made, of an infant or person of unsound mind, 
 and of a defendant served out of the jurisdiction ; autho- 
 rizing in each case under certain restrictions an appear- 
 ance to be entered for such defendant, (i) And their 
 effect appears to be that on neglect by a defendant to 
 appear, the plaintiff may waive all process of contempt 
 and enter an appearance for him ; or may, at his option, 
 issue an attachment. But on the return of this writ, 
 whether it be " in prison," " cepi corpus" or " rum est in- 
 ventus," he can issue no further process, but must pro- 
 ceed 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, there- 
 fore, no means of reaching the defendant ; and in p^onq-i 
 *the third, he cannot have a serjeant-at-arms, and ^ J 
 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. 
 
 (g) 1845, xxxi, xxxiii. (h) 1841, vi, vii. 
 
 («■) 1845, xxix, xxxvi. 
 
686 ADAMS'S DOCTRINE OF EQUITT. 
 
 In this case there are three modes of procedure open 
 to the plaintiff, viz., by process of contempt, by taking 
 the bill pro con/esso, or by going into evidence without aa 
 answer. 
 
 If he adopt the first course, by process of contempt, he 
 may issue an attachment, either immediately on default, 
 or if the defendant is likely to abscond, at an earlier 
 period. (Z^) If the defendant is not taken on the attach- 
 ment, the plaintiff, on a return of non est inventus, may 
 dispense with intermediate process, and obtain an imme- 
 diate 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 con/esso} And he is entitled under the pre- 
 sent practice to adopt this course immediately on the exe- 
 cution of an attachment for want of answer, or at any 
 time within three weeks afterwards, or whenever he is 
 unable, with due diligence, to procure an attachment 
 or subsequent process for want of answer to be exe- 
 cuted, (m) 
 
 Tlie third course is that of going into evidence with- 
 out an answer, which, where the plaintiff can rely on 
 the strength of bis 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 
 
 (/.;) 1845, kxxii. (0 1841, ix. (»i) 1845, Ixxvi, Ixxix. 
 
 ' [See on this subject, Rules of U. S. Courts in Equity, No. xviii, &c. ; 
 in Penna., No. xvii, &o. ; Guerry v. Durham, 11 Geo. 9 ; Carradine v. 
 O'Connor, 21 Alab. 573. A decree pro con/esso cannot be made against 
 one not served. Hurter v. Robbins, 21 Alab. 585.] 
 
OF PROCESS AND APPEARANCE, 687 
 
 in the defendant's name. By the present rules a simpler 
 plan is adopted ; and the plaintiff is authorized to file a 
 traversing note, expressing his intention to proceed as if 
 an answer had been filed traversing the bill.(n) 
 
 *The outline which has been just given of the p^„op,-, 
 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. 
 
 (n) 1845, lii, Iviii. (o) 1 Dan. chap. 7, 8, 9, 10, 12. 
 
688 ADAMS'S DOCTRINE OP 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 out- 
 law, 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.(&) 
 
 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 
 
 (a) 1 Dan. C. P. 509, 595. (I) 1 Dan. chap. 3. 
 
 ^ [A defendant need not demur to a bill that is wanting in equity, but 
 may, at any time, reach the defect by motion to dismiss. Lockard v. 
 Lockard, 16 Ala. 423. But, if not demurred to, evidence will be re- 
 ceived in support of its allegations. Groves v. Fulsome, 16 Mo. 543. 
 A special reservation by a defendant, in his answer of exceptions to the 
 sufficiency of a bill for want of equity, has the effect of a demurrer. 
 Lovett V. Longmire, 14 Ark. 339.] 
 
OF THE DEFENCE. 689 
 
 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 cer- 
 tainty 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 transferring the juris- 
 diction 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 of each rajooo-i 
 of these defences are not material to be here con- 
 sidered. 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.. Dis- 
 claimer, Demurrer, Plea, and Answer. A disclaimer 
 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 avoid- 
 ance, 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 applica- 
 tion of each.' Such, for example, would be the case if 
 
 ' [By the Equity Eules of the United States Courts, No. xxxii, and 
 of Pennsylvania, No. xxx, it is provided that the defendant may, at any 
 time before the bill is taken for confessed, or afterwards, with the leave 
 of the Court, demur or plead to the whole bill, or to part of it, and he 
 may demur to part, plead to part, and answer as to the residue ; but in 
 
 44 
 
690 ADAMS'S DOCTEINE OF EQUITY. 
 
 the bill prayed a conveyance of land, as to part of which 
 the defendant was a purchaser 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 accord- 
 ingly he might put in as to one part of the land a plea 
 " that 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, com- 
 pounded of plea and answer, and technically 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 certain 
 P^oqq-i *property, untruly state that the defendant 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 dismissed 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, however, happens that a disclaimer can be 
 put in alone ; for as it is possible that the defendant 
 
 (c) Mitf. 106, 319 ; Wigr. on Diseoveiy, s. 12. 
 
 every case in which the bill specially charges fraud or combination, a 
 plea to such part must be accompanied with an answer fortifying the 
 plea, and explicitly denying the fraud and combination, and the facts 
 on which the charge is founded.] 
 
OF THE DEFENCE, 691 
 
 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 is not merely 
 seeking property which he believes the defendant to 
 claim, but is actually charging the defendant as account- 
 able for a wrong committed, a disclaimer cannot apply, (d) 
 2. The principle of a defence by demurrer is that, on 
 the plaintiff's own showing, his claim is bad. It is ap- 
 plicable 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, mul- 
 tifariousness, and want of parties. The frame of a de- 
 murrer is very simple, and, after the formal commence- 
 ment, runs thus : " This defendant 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 regu- 
 lar 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 further cause of demurrer, this defendant showeth," 
 &c,, and concluding with the words, " wherefore and for 
 
 (d) Mitf. on Pleading, 318; Perkin v. Stafford, 10 Sim. 562; Gra- 
 ham V. Coape, 3 M. & C. 638 ; Glassington v. Thwaites, 2 Rusa. 458. 
 
 ' A disclaimer must be full and explicit in all respects, and be accom- 
 panied by an answer, denying the facts deemed necessary to be denied. 
 Worthington v. Lee, 2 Bland, 678. The defendant 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 defen- 
 dant should not, after the disclaimer, be continued a party to the suit. 
 Ellsworth V. Curtis, 10 Paige, 105; see also, Spofford v. Manning, 2. 
 Edw. C, K. 358. 
 
692 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 honorable Court whether he 
 shall be compelled to make any other answer thereto ; 
 and he humbly prays to be hence dismissed, with his 
 reasonable costs in this behalf sustained." The formal 
 r*SH41 *statement, however, of the causes of demurrer, 
 though usual, is not absolutely 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 demur- 
 rer 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, 
 however, the defendant will not be entitled to his 
 costs, (e) 
 
 The form of demurrer just given is that of a demurrer 
 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 particu- 
 lar 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.^ 
 
 (e) Mitf. 217 ; Wellesley v. Wellesley, 4 M. & C. 554 ; 1 Dan. C. 
 P. 539-545. 
 
 • See Nash y. Smith, 6 Conn. 421 ; [Vanhorn v. Duckworth, 7 Ired. 
 Eq. 261.] 
 
 ' 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 ascertain precisely how far the 
 demurrer goes, and how much of the bill remains to be answered. 
 Jarvis v. Palmer, 11 Paige, 650 ; Clancy v. Craine, 2 Dev. Eq. 363 ; 
 
"OF THE DEFENCE. 693 
 
 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 require 
 a discovery ; and if the discovery be required for any 
 other purpose, it should be sought by a separate and in- 
 dependent bill.(/)' If the demurrer be to a part only 
 of the relief, it will not necessarily extend to the dis- 
 covery, because discovery may be necessary for obtain- 
 ing the rest of the prayer. It may also happen that the 
 demurrer will leave the relief untouched, and will extend 
 only to the discovery or part of the discovery, on the spe- 
 cial ground that the subject-matter is one in which the de- 
 fendant is not obliged to answer, e. g., where it would ex- 
 pose him to a penalty or forfeiture, or would be a disclosure 
 of professional confidence.^ But, unless such special ground 
 
 (/) Morris v. Morgan, 10 Sim. 341. 
 
 [Gray t. Kegan, 23 Miss. (1 Cushm.) 304 ; Burch v. Coney, 14 Jur. 
 1009.] 
 
 A defendant cannot answer the bill and demur to the interrogatories. 
 Kisor V. Stancifer, Wright, 328. 
 
 ' See Souza v. Belcher, 3 Edw. C. R. 117 ; Miller v. Ford, Saxton, 
 358 ; Welles v. River Raisin R. R. Co. Walk. Ch. R. 35 ; 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. Ch. R. 327. 
 
 To a bill for a discovery against a surviving partner, and for an ac- 
 count, a demurrer to the discovery, alleging that it might subject him to 
 penalties under the laws of the United States, is bad ; it should state why 
 and wherefore a forfeiture would be the consequence 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 
 
694 ADAMS'S DOCTRINE OF EQUITY. 
 
 exist, the general rule is that a defendant cannot admit 
 the right to relief, and at the same time demur to the 
 discovery by which the relief is to be obtained. ((/) In 
 all cases alike the rule *prevails, that the extent 
 <- -I to which the demurrer is meant to be a defence 
 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 re- 
 quisite, the demurrer being entire, must be overruled, {ggf 
 A demurrer might also have been overruled under the 
 old practice, on the ground that it did not cover so much 
 
 (g) 1 Dan. C. P. 502. (gg) 1 Dan. C. P. 538-540. 
 
 possession, and a subsisting adverse possession. Le Koy v. Servis, 1 
 Cai. Cas. E. 3 j S. C. 1 Johns. Cas. 417. See also on the point, Pat- 
 terson V. Patterson, 1 Hayw. 167 ; Wolf v. Wolf, 2 Ear. & Gill, 382; 
 Livingston v. Tompkins, 4 Johns. C. K. 415 ; Northrop v. Hatch, 6 
 Conn. 361. See, in addition, supra. Book I, chap, i, on Discovery. 
 
 ' Livingston v. Story, 9 Pet. 632 ; Brockway v. Copp, 8 Paige, 539 ; 
 Le Roy v. Veeder, 1 Johns. Cases, 417; Laight v. Morgan, Id. 429; 
 Verplank v. Gaines, 1 Johns. C. R. 57 ; Le Fort v. Delafield, 3 Ed. C. 
 R. 32 ; Thompson v. Newlin, 3 Ired. Eq. 338 ; Russell v. Lanier, 4 
 Hey. 289 ; Kimberly v. Sells, 3 Johns. C. R. 467 ; Livingston v. Liv- 
 ingston, 4 Johns. C. R. 294; Higinbotham v.. Burnet, 5 Johns. C. E. 
 184 ; Parsons v. Bowne, 7 Paige, 354 ; Castleman v. Veitch, 3 Band. 
 598 ; Griggs v. Tbompson, 1 Geo. Decis. 146 ; Hollsclaw v. JohnsoD, 
 2 Geo. Decis. 146 ; Blount v. Garen, 3 Hey. 88 ; Eancher 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. Bq. 607; 
 Harden v. Miller, Dudley, 120 ; Williams v. Hubbard, Walk. Ch. E. 
 28 ; Thayer v. Lane, Harring. C. R. 247 ; Shed v. Garfield, 5 Verm. 
 39 ; Clark v. Davis, Harring. C. R. 227 ; [Bank U. S. v. Biddle, 2 Pars. 
 Eq. 32; Gray t. Regan, 23 Miss. (1 Cushm.) 304; Vanderveer v. 
 Stryker, 4 Halst. Ch. 175.] But the demurrer will not be overruled if 
 the bill is multifarious. See Dimmock v. Bixby, 20 Pick. 368. 
 
OF THE DEFENCE. 695 
 
 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, (h) ^ 
 
 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 in- 
 variable rule that on argument of a demurrer, all alle- 
 gation's 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 de- 
 murrer introducing contrary or additional averments, is 
 termed a speaking demurrer, and cannot be sustained.' 
 
 (K) Orders of 1841, xxxvi, xxxvii. 
 
 ' See Spofford v. Manning, 6 Paige, 383 ; Kuypers v. Keformed 
 Dutch Church, Id. 570; Clark v. Phelps, 6 John. C. K. 214; Chase's 
 Case, 1 Bland. C. R. 206 ; McDermott v. Blois, R. M. Charl. 281 ; 
 Robertson v. Bingley, 1 McCord's C. R. 352 ; Jarvis v. Palmer, 11 
 Paige, 650. [Where a bill is demurred to in part, and answered in 
 part, the captions should be distinct, and specify the nature of the plead- 
 ings ; and if they do not so specify them, they will be bad in form. The 
 parts demurred to should be pointed out, for if left indefinite, the answer 
 will overrule the demurrer. Bruen v. Bruen, 4 Edw. Ch. 640. A simi- 
 lar change to that stated in the text, however, has been introduced into 
 the practice of the U. S. Courts, Rules in Equity, No. xxxvi, vii ; and 
 in Pennsylvania, Rules in Eq. No. xxxiv, v.j 
 
 ' [But facts charged on the complainant's information merely, are not 
 admitted by demurrer. Williams v. Presbyt. Soc. 1 Ohio St. N. S. 478. 
 So where a fact is charged as a conclusion from other circumstances 
 stated in the bill, but which do not in fact support the allegation. Red- 
 mond V. Dickerson, 1 Stockt. 507.] 
 
 ' 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, 874. See also on the subject, Tall- 
 madge v. Lovett, 3 Edw. C. R. 563 ; Saxon v. Barksddle, 4 Desau. 
 
696 Adams's doctrine of equity. 
 
 But if the allegations are inconsistent or uncertain, or if 
 any material allegation be omitted, the construction on 
 demurrer will be against the bill.(«) 
 
 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 de- 
 murrer bad, he may set it down for argument. If the 
 demurrer is allowed on argument, the suit is at an end, 
 unless the demurrer is confined to a part of the 
 ■- -■ bill, *or the Court give permission to the plain- 
 tiff to amend. If it is overruled, the defendant must 
 make a fresh defence by answer, unless he obtain per- 
 mission to avail himself of a plea.(^)' 
 
 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 inexpe- 
 dient and often an objectionable course as involving a 
 premature discussion of the case, of which the plaintiff 
 
 (0 Mortimer v. Frazer, 1 Dan. C. P. 500 ; Tajlor v. Barclay, 2 Sim. 
 213 ; Edsell v. Buchanan, 4 B. C. C. 254; Campbell v. Mackay, 1 M. 
 & C. 603 ; Foss v. Harbottle, 2 Hare, 461, 503. 
 
 (7c) 1 Dau. C. P. 545-560 ; Orders of 1845, xliv-xlvii. 
 
 522 ; Kedd v. Wood. 2 Geo. Deeis. 174 ; [Gray v. Eegan, 23 Miss. 
 304 ; Black v. Shreeve, 3 Halst. Ch. 440.] 
 
 1 [Story Eq. Plead. § 460 j Cole Co. v. Anghey, 12 Mo. 132; Hen- 
 derson V. Dennison, 1 Cart. Ind. 152. See, on this subject, Kules Eq- 
 U. S. Cts. No. xxxiv ; Penn. No. xxxii. As to amendment of a de- 
 murrer, see Holliday v. Riordon, 12 Geo. 417.] 
 
OF THE DEFENCE. 697 
 
 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 
 unfavorable comments.* And even when he wishes to 
 avoid discovery he may now, to some extent, if the bill 
 be demurrable, protect himself by answer. (Z) 
 
 3. The principle of a defence by plea is, that the de- 
 fendant avers some one matter of avoidance, or denies 
 some one allegation of the bill, and contends that assum- 
 ing the truth of all the allegations in the bill, or of all 
 except that which is the subject of denial, there is suffi- 
 cient to defeat the plaintiff's claim. It is applicable, 
 Uke a demurrer, to any class of objections ; but the most 
 usual grounds of plea are, 1. Want of jurisdiction ; 2. 
 Personal disability 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) 4. Want of equity, where the equity 
 depends on a single point. 
 
 (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. 
 
 ' 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 ; Anderson v. Lewis, 
 Freem. 206 ; Rambo v. Rambo, 4 Desau. 251 ; Niles v. Anderson, 5 
 How. Miss. 365 ; Carter v. Longworth, 4 Ham. 384. [Miller v. Saun- 
 ders, 17 Geo. 92. See ante, 332, note.J 
 
698 ADAMS'S DOCTRINE OF EQUITY. 
 
 *Pleas of the first class, or those in which new 
 L ■ -I matter is alleged in avoidance, are termed affir- 
 mative. They do not require any special comment, and 
 it will be sufficient to mention a few of the most ordi- 
 nary occurrence, viz., the Statute of Limitations, the 
 Statute of Frauds, a release under seal, an account settled 
 or stated account, an award, and a purchase for valuable 
 consideration without notice. (n)^ 
 
 Pleas of the second class, or those in which an allega- 
 tion of the bill is denied, are termed Negative Pleas, and 
 are applicable when the plaintiflf, by false allegation on 
 one point, has created an apparent equity, and asks dis- 
 covery 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 discovery, 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 
 
 (n) 1 Dan. C. P. 606-643. (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 the 
 facts and circumstances charged in the bill, and which in equity may 
 avoid the statute. Goodrich v. Pendleton, 3 Johns. C. R. 384; Blood- 
 good V. Kane, 8 Cow. 360. But it is not necessary to refer, in terms, 
 to the statute which creates the bar. Van Hook v. Whitloek, 7 Paige, 
 373. See Stearns v. Page, 1 Story, 204. 
 
 A plea of stated account must aver that the accounts settled all deal- 
 ings between the parties, and were just, and fair, and due ; and these 
 averments must be supported by an answer to the same effect. Schwarz 
 V. Wendell, Earring. C. R. 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, 573. See 
 Danels v. Taggart, 1 Gill & J. 311. 
 
OF THE DEFENCE. 699 
 
 discovery, he must resort to a negative plea, denying 
 the allegation of partnership or heirship ; and until the 
 validity of his plea is determined, he will 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 protects against 
 discovery consequent on the alleged equitj', it does not 
 protect against discovery required to prove it. If, there- 
 fore, 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 ex- 
 cepted 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 in- 
 terest, a plea of " no debt" would cover *all the r^gpcT 
 discovery and relief sought, including the allega- L J 
 tion of debt, but excepting the discovery in evidence of 
 the debt. (^) 2 
 
 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 paternd, and that the plaintiff was 
 h.&s ex parte maternd, and alleged further, that the de- 
 fendants by correspondence had admitted the plaintiff's 
 title, a plea that a specified person was heir ex parte 
 
 (p) Thring V. Edgar, 2 S. & S. 274 ; Denys v. Locock, 3 M. & C. 
 205. 
 
 ' A plea, simply denying a fact alleged in the bill, as e. g., a partner- 
 ship, is bad. Innes v. Evans, 3 Edw. C. K. 454 ; Bailey v. Le Roy, 2 
 Edw. C. R. 514; [Black v. Black, 15 Geo. 445. j 
 
 » See Everitt v. Watts, 3 Edw. C. R. 486. 
 
700 ADAMS'S DOCTRINE OF EQUITY. 
 
 paternd was overruled, because 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 plain- 
 tiff 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 averments 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 de- 
 fence, 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 in- 
 effectual against the equity charged in avoidance ; and, 
 therefore, the allegations which constitute that equity 
 must not only be denied by averments in the plea, in 
 order to render the defence complete, but must in re- 
 spect of the plaintiff's right of discovery be the subject 
 of a full answer in support, (r)^ 
 
 (q) Wig. on Disc. s. 115, 120 ; Emerson v. Harland, 3 Sim. 490; 8 
 Bli. 62 ; Clayton v. Winchelsea, 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 v. Trinity Church, 4 Paige, 
 178 ; [Tompkins v. Ward, 4 Sandf. Ch. 594; Cox v. Mayor of Griffin, 
 17 Geo. 249 ; or would tend in any way to discredit it. Hunt v. Pen- 
 rice, 18 Jur. 4.] And the averments are as necessary as the answer; 
 for where a bill charged misrepresentation, coercion, and fraud, in pro- 
 
OF THE DEFENCE. 701 
 
 Where an answer in support is not required, a plea to 
 all *the relief is a bar to all the discovery ; for p^„„Q^ 
 the discovery is only material in order to obtain L -■ 
 the relief, (s) It has been doubted whether this rule ap- 
 plies, where the relief is at law, i. e., whether the defen- 
 dant to a bill seeking discovery 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 incon- 
 venience in this course, but the principle on which the 
 rule is based seems to include both cases alike, and to 
 render 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, and so prevent an 
 answer on any material point, or if the answer, though 
 
 (a) Sutton V. Scarborough, 9 Ves. 71. 
 
 (t) Hindman v. Taylor, 2 B. C. C. 7 ; Wigr. on Discovery, s. 66 ; 
 flare on Discovery, p. 47-02. 
 
 curing a release of a debt, and the defendant put in a plea and answer, 
 and in his plea insisted on the release in bar, without noticing the alle- 
 gation of fraud, though in the answer it was fully met and denied, the 
 plea was held bad. Allen v. Randolph, 4 Johns. C. R. 693. See also 
 on this point. Fish v. Miller, 5 Paige, 26 ; Bolton v. Grardner, 3 Paige, 
 273 ; Bellows v. Stone, 8 N. H. 280 ; French v. Shotwell, 5 Johns. C. 
 E. 555 ; Ferguson v. O'Harra, 1 Pet. C. C. R. 493 ; [see as to rules in 
 the United States and Pennsylvania, ante, 332, note.] 
 
 • See Lane v. Stevens, 3 Edw. C. R. 480 ; 9 Paige, 622 ; in which 
 it was decided, that a defendant in a suit at law can be compelled, 
 through a discovery bill, to answer, even though the discovery may be 
 fatal to the defence he sets up. 
 
 * See Jarvis v. Palmer, 11 Paige, 650. 
 
702 ADAMS'S DOCTRINE OF EQUITY. 
 
 in terms applying to all the requisite discovery, be sub- 
 stantially 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 re- 
 quired in support, the plea is not vitiated by applying 
 it to too large a portion of the billj 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.(v)^ 
 
 (u) 1 Dan. C. P. 591 ; Foley v. Hill, 3 M. & C. 475 ; Harris v. 
 Harris, 3 Hare, 450. 
 (v) Mitf. 295. 
 
 ^ An answer can overrule a plea only where it relates to matters which 
 the defendant by his plea declines to answer. Bogardus v. Trinity Church, 
 4 Paige, 178 ; Souzer 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, overrules 
 the plea. Taylor v. Luther, 2 Sumner, 228 ; Clark v. Saginaw Bank, 
 Harring. C. R. 240. So, an answer containing more than is strictly ap- 
 plicable to the support of the plea. Stearns v. Page, 1 Story, 204. 
 
 If an answer commences as an answer to the whole bill, it overrules 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. [Now, how- 
 ever, by Equity Rule xxxvii of the United States Courts, and Equity 
 Rule XXXV, in Pennsylvania, it is provided that no demurrer or plea 
 shall be held bad and overruled on argument, only because the answer of 
 the defendant may extend to some part of the same matter, as may be 
 covered by such demurrer or plea.] 
 
 * A plea may be good in part and bad in part. French v. Shotwell, 
 20 Johns. 668 ; Kirkpatriok v. White, 4 Wash. C. C. E. 595. 
 
OF THE DEFENCE, 703 
 
 *The form of a pure plea, whether affirmative 
 or negative, is that " This defendant doth plead r*340] 
 to the said bill, and for plea saith," &c., stating the mat- 
 ter of avoidance or denial on which he relies ; and then 
 concluding, " All which this defendant 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 defendant 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 defendant, not waiving his said 
 plea, but relying thereon, doth for answer to so much of 
 the said complainant's said bill as this defendant hath 
 not pleaded to, answer and say," &c., following the ordi- 
 nary form of answers. (i«) 
 
 (jd) Denys v. Locoek, 3 M. & C. 205. 
 
 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. Goodrich v. Pendle- 
 ton, 3 Johns. C. E,. 394. The Court may permit 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 defence 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 matters 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 ; 
 Leacraft v. Demprey, 4 Paige, 124. [When a plea is adjudged a good 
 defence in part, and ordered to stand for an answer, it is a sufficient an- 
 swer to so much of the bill as it covers, unless by the order the complain- 
 ant is given leave to except. Beall v. Blake, 10 Geo. 449.] 
 
704 Adams's doctrine of equity. 
 
 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 neces- 
 sary that it should consist of a single fact ; for the defence 
 ofiered by way of plea may in equity, as at law, consist 
 of many facts, provided they all tend to one point con- 
 stituting the defence. But it cannot include several 
 defences, or as it is technically termed, a defendant can- 
 not, 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 invention ; and secondly, that it is 
 not a useful one ; because either of these facts, if true, 
 would be a separate defence, (x) Of course this rule 
 does not apply where the bill makes a double claim, so 
 r*R4.l 1 *^ ^'^ prohibit different pleas to the difierent*parts 
 of such a bill ; for such pleas are not, in fact, a 
 double defence to the same claim, but distinct defences 
 to distinct claims. 
 
 Its averments must have the same certainty as those 
 of a plea at law. It has been already stated, that in 
 
 (x) Whitbread v. Brockhurst, 1 B. C. C. 404 ; Kay v. Marshall, 1 
 Keen, 190 ; Strickland v. Strickland, 12 Sim. 253. 
 
 » Saltus V. Tobias, 7 Johns. C. K. 214; Van Hook v. Whitlock, 3 
 Paige, 409 ; Goodrich v. Pendleton, 3 Johns. C. R. 386 ; [Driver v. 
 Driver, 6 Indiana, 286.] 
 
 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, 615 ; see Moreton v. Harrison, 1 Bland's C. R. 
 491 ; Eidgley v. Warfield, 1 Bland's C. R. 494, m notis. 
 
OF THE DEFENCE. 705 
 
 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 litigation 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 fact, 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 aver- 
 ment 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 questioned, 
 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 evidence of witnesses, but 
 by matter of record, i. e., by the enrolled proceedings of 
 a Court of record. In this case, the mere inspection of 
 the record is conclusive, and no oath is required, (t/) 
 
 The course of procedure on a plea will depend on the 
 view taken by the plaintiff as to the sufficiency in law, 
 
 (y) 1 Dan. C. P. 651-656. 
 
 ' [WUd V. Gladstone, 15 Jur. 713. It seems the proper course is to 
 move to take the plea off file, if it be unsworn. Ibid.] 
 
 45 
 
706 ADAMS'S DOCTRINE OP EQUITT. 
 
 or the truth in fact, of the defence. If he thinks the 
 r*R4-21 P^^* *valid, but that he can meet it by araend- 
 •^ ment, he may do so. If he thinks it invahd, 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 argu- 
 ment, 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 
 sufficiency.^ If it is allowed on argument, its validity 
 is established, but the plaintiff may still file a replica- 
 tion, and go to a hearing on the question of its truth. 
 He may sometimes, too, obtain permission to amend his 
 bill, but this is not a matter of course after the allow- 
 ance of a plea, and will only be granted on a special 
 application. 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) 
 
 . A plea, like a demurrer, is not compulsory on the de- 
 fendant. And if he has no strong motive for resisting 
 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 
 
 (z) 1 Dan. C. P. 656-668, 1845-48-50. 
 
 ' [See, as to the practice in this point, Wilkes v. Henry, 4 Edw. Ch. 
 672.] 
 
 ^ See cases cited, supra, note, p. 339. 
 
OF THE DEFENCE. 707 
 
 use all or any of his grounds of defence, subject only to 
 the necessity of verifying them on oath ; and an objec- 
 tion which might have been made by demurrer or plea, 
 will, in most cases, be equally a bar to relief when in- 
 sisted on by answer, although it will not, as we have 
 already seen, excuse the defendant from giving the dis- 
 covery 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 the case might r^o^^q-i 
 stand over for the plaintiflF to amend, subject, 
 bowever, if notice had been given by the answer, to pay- 
 ment 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 de- 
 barring him, at the discretion of the Court, from liberty 
 to amend at the hearing ; and, 2. When the objection 
 is not so suggested, 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 
 narrative of the defendant's case, knd secondly a dis- 
 covery in aid of the plaintiff. It commences, " This de- 
 fendant, reserving to himself all benefit of exception to 
 the said complainant's said bill of complaint, for answer 
 thereto saith."' It then goes on to answer the plaintiff's 
 
 (a) 39th and 40th Orders of August, 1841. [And see Rules in 
 Eq. U. S. Courts, No. Hi, liii; Penna. 1, li.] 
 
 ' [The general reservation of exceptions in the commencement of an 
 answer cannot be relied on as raising exceptions to the jurisdiction ; 
 
708 Adams's docteine of equity. 
 
 interrogatories, and to introduce such new matter as may 
 be required ; and concludes with what is termed the 
 general traverse or denial of all matters in the bill. 
 This is usually expressed in drafts by the words " With- 
 out 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 unnecessary, 
 it is still continued in practice. (6) 
 
 The averments of an answer, 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 the defence 
 with reasonable certainty and without scandal or im- 
 pertinence.' 
 
 In so far as the answer consists of discovery, it is regu- 
 lated 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 need discover legal advice 
 
 (&) Mitf. on Plead. 314. 
 
 neither can it perform the office of a general demurrer, or of exceptions 
 to the averments of the bill. O'Neill v. Cole, 4 Maryl. K. 107 ; Old- 
 ham V. Trimble, 15 Mo. 625. 
 
 Where an answer is regularly entitled in the cause, the absence of the 
 preliminary words, " to the said complainant's bill of complaint," is not 
 objectionable. Eabbett v. Squire, 1 Eq. Kep. 56.] 
 
 ' [Repetition of a material statement in an answer to an amended bill 
 is impertinent. It is no defence to an application to strike out imperti- 
 nent matter, that it will make the pleading inconsistent, unreasoning, 
 and incongruous. Allfrey v. AUfrey, 14 Beav. 235 ; 15 Jur. 831 ; 
 Gier v. Gregg, 4 McLean, 202. Where parts of an answer are prima 
 facie scandalous, the Court will order a reference to a Master without 
 examining whether they are or are not responsive. Mathewson v. Ma- 
 thewson, 1 Rh. Isl. 397.] 
 
OF THE DEFENCE. 709 
 
 *which has been given him by his professional 
 advisers, or statements of facts which have passed L J 
 between himself and them in reference to the dispute in 
 litigation, and official persons must not disclose any 
 matter of state, the publication of which may be preju- 
 dicial to the community ; but subject to these restric- 
 tions, 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 dis- 
 tinctly, completely, without needless prolixity, and to 
 the best of his information and belief (c)^ He is not, 
 
 (c) Supra, Discovery. 
 
 '■ See Brooks v. Byam, 1 Story, 296 ; Taylor v. Luther, 2 Sumner, 
 228 ; Bradford v. Geiss, 4 Wash. C. C. R. 513 ; Devereaux v. Cooper, 
 11 Verm. 103 ; Woods v. Morrell, 1 Johns. C. R. 103 ; Robertson v. 
 Bingley 1 McCord's C. R. 383 ; Hagthorp v. Hook, 1 Gill & J. 270 ; 
 Bailey v. Wilson, 1 Dev. & Batt. Eq. 182 ; Carneal v. Wilson, 3 Litt. 
 80 ; [Dinsmoor v. Hazleton, 2 Foster, 535 ; McKim v. White Hall Co. 
 2 Maryl. Ch. 510 ; Wootten v. Burch, Id. 190 ; Kinnaman v. Henry, 
 2 Halst. Ch. 90.] It is a general rule that a defendant cannot, by an- 
 swer, excuse himself from answering. 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 further answer. 
 Hunt V. Gookin, 6 Verm. 426. 
 
 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 ; [West v. Williams, 1 Maryl. Ch. 
 358.] Yet in such case it should appear that an answer would, in no 
 aspect of the complainant's case, as made by the bill, be of service to 
 him. Gilkey v. Paige, Walker's Ch. R. 520. [Nor need a defendant 
 answer any interrogatory, not founded on some allegation in the bill. 
 Miller v. Saunders, 17 Geo. 92; nor respond to an allegation as 
 to his own insolvency. Mayer v. Galluchat, 6 Rich. Eq. (S. C.) l.J 
 
710 ADAMS'S DOCTRINE OF EQUITY. 
 
 however, bound to answer as to conclusions of law, nor 
 as to conclusions of fact, when the evidence only is 
 within his knowledge, and not the fact which it tends 
 
 Where a defendant denies 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. K. 297. [Where a fact is charged in a bill which 
 is within the defendant's knowledge, as an act done by him, he must 
 answer positively, and not according to his remembrance and belief; but 
 where the fact charged did not occur within six years, it is an exception 
 to the rule. Carey v. Jones, 8 Geo. 516.] A defendant cannot be com- 
 pelled to answer interrogatories based upon a hypothetical statement in 
 the bill. Grim v. Wheeler, 3 Edw. C. K. 334. Nor a mere recital in 
 the bill. Mechanics' Bank v. Levy, 3 Paige, 606. Nor a mere arith- 
 metical proposition. Mclntyre v. Union College, 6 Paige, 289. 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 ; and, in addition, upon the requisites of the answer, 
 note, page 307, ante. 
 
 [By the Equity Kules of the U. S. Courts, No. xxxix, and of Penna. 
 No. xxxvii, it is provided, that the rule that if a defendant submits to 
 answer, he shall answer fully to all the matters of the bill, shall no looger 
 apply in cases where he might, by plea, protect himself from such answer 
 and discovery. And it is also provided, that the defendant shall be en. 
 titled in all cases, by answer, to insist upon all matters of defence (not 
 being matters of abatement, or to the character of the parties, or of matters 
 of form) in bar of, or to the merits of the bill of which he may be entitled 
 to avail himself by a plea in bar ; and in such answer he shall not be 
 compellable to answer any other matters than he would be compellable 
 to answer and discover, upon filing a plea in bar, and an answer in sup- 
 port of such plea, touching the matters set forth in the bill to avoid 
 or repel the .bar, or defence. Thus, for example, a honafide purchaser, 
 for a valuable consideration, without notice, may set up the defence by 
 way of answer instead of plea, and will be entitled to the same pro- 
 tection, and will not be compellable to make any further answer or dis- 
 covery of his title than he would be in any answer in support of such a 
 plea. 
 
 A bill wanting in equity can derive no aid from the answer, and is 
 liable to be dismissed on motion, though the answer disclose a case that 
 
OF THE DEFENCE. 711 
 
 to prove. And in such cases it is generally advisable to 
 detail exactly the facts or evidence, and to submit to the 
 Court whether they warrant the plaintiff's conclusion, 
 and then to conclude with a special traverse in the words 
 of the interrogatory, that " save as aforesaid the defen- 
 dant cannot state as to his belief or otherwise whe- 
 ther," &c. 
 
 In framing an answer it is seldom possible to ke«p the 
 narrative and discovery separate, nor is it generally ad- 
 visable to do so, beyond what may be requisite for bring- 
 ing out distinctly the defence itself For by interming- 
 ling the two, and embodying in the discovery a running 
 connection 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 defen- 
 sive statement. 
 
 The answer is generally, though not always, followed 
 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 such schedules are re- 
 ferred to in the *body of the answer, by stating p^„ ,►-, 
 that they are annexed thereto, and praying that •- -^ 
 they may be taken as part thereof 
 
 After the answer is put in, the next step in procedure 
 regards the question of its sufficiency ; viz., whether the 
 
 would entitle the complainant to relief. Lockard v. Loekard, 16 Alab. 
 423. 
 
 Defendant may state in his answer and take issue on matters which 
 have happened after bill filed, but the Court will not deal with the sub- 
 ject of the suits by interlocutory order, which occur after the answer has 
 been filed, and are not brought forward by amendment, by supplemental 
 bill, or by supplemental answer. Stamps v. Birmingham, &o. R. E. 7 
 Hare, 258; 2 Ph. 673.] 
 
712 ADAMS'S DOCTRINE OF EQUITY. 
 
 defendant has given all due discovery. If he has not, 
 the plaintiff may except.^ The exceptions 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 defendant has not to the best of his know- 
 ledge, remembrance, information, and belief, answered 
 and set forth whether," &c., following the words of the 
 interrogatory which has been insufficiently answered; 
 " Secondly, for that the said defendant has not in man- 
 ner aforesaid answered and set forth whether," &c., M-. 
 lowing 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 answer of the said defendant, 
 and humbly prays that the said defendant may be com- 
 pelled to put in a sufficient answer thereto." If the de- 
 fendant does not submit to the exceptions^ they are re- 
 ferred to one of the Masters for consideration ; and if he 
 reports the answer insufficient, a further answer must 
 be filed on the points excepted to. If either party is 
 
 ^ [Exceptions are applicable, however, only where matters alleged in 
 the bill are not sufficiently answered, and not because the answer does 
 not state matter set forth in avoidance or defence, with fulness and ex- 
 plicitness : Lanum v. Steel, 10 Humph. 280 ; or for mere matters of 
 irregularity of form, for which the remedy is to move to take the answer 
 off file. Vermilye v. Christie, 4 Sandf. Ch. 376. "Where an answer is 
 responsive to any one material allegation, it cannot be stricken from the 
 file as frivolous, but the remedy is by exception. May v. Williams, 17 
 Alab. 23.] 
 
 ' [Improperly or carelessly drawn exceptions will be overruled. Dk. 
 Brunswick v. Dk. Cambridge, 12 Beav. 279 ; McKeen v. Field, 4 Bdw. 
 Ch. 379.] 
 
OF THE DEFENCE. 713 
 
 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 insufiicient answer, the plain- 
 tiff does not deliver new exceptions, but must refer it for 
 insufficiency on the old ones, pointing out in the order 
 which he obtains, the particular exception or exceptions 
 to which he requires a further answer.^ If a third an- 
 swer is reported insufficient, the defendant is examined 
 personally on interrogatories; and is committed to prison 
 until he shall have perfectly answered them.^ 
 
 *The next step, after the sufficiency of the 
 answer is determined, is the amendment of the ^ ^ 
 plaintiff's bill.' Before the answer is filed, the plaintiff 
 
 • [See Rider v. Riely, 2 Maryl. Ch. 16.] 
 
 ' [See, on the practice as to exceptions to answers, Rules in Equity 
 of U. S. Courts, No. Ixi, &c.; Penn. lix, &c.] 
 
 ' See, as instances of amendment, Noyes v. Sawyer, 3 Verm. 160 ; 
 Arendell v. Blackwell, 1 Dev. Eq. 354; Stephens v. Terrell, 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. R. 181; [Baynton 
 v. Barstow, 38 Maine, 577.] 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 
 Edw. C. R. 428. Nor where the Court is satisfied that the proposed 
 allegation cannot be substantiated. Prescott 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 dismissed on the merits of the case as stated, for want of 
 equity. Lyon v. Tallmadge, 1 Johns. C. R. 184. [See Farmers' and 
 Mechanics' Bank v. Griffith, 2 Wise. 443.] 
 
 [Amendments to a bill can only be granted where the bill is defective 
 in parties, or in the prayer for relief, or in the omission or mistake of a 
 fact or circumstance connected with the substance, but not forming the 
 
714 ADAMS'S DOCTRINE OF KQUITT. 
 
 may amend as often as he thinks fit; but after an answer 
 he is precluded from doing so, until its sufficiency or in- 
 
 substance itself, nor repugnant thereto ; and not so as to create a differ- 
 ent case or a new bill, or it will be demurrable. Carey v. Smith, 11 
 Geo. 539 ; Larkins y. Biddle, 21 Alab. 252 ; Lyon v. Tallmadge, 1 
 Johns. Ch. 184; Garner v. Keaton, 13 Geo. 431; Eumbly v. StaintoDj 
 24 Alab. 712; Shields v. Barrow, 17 How. U. S. 180; School Dist. v. 
 Macloon, 4 Wise. 79! So they are permissible only as respects matters 
 occurring prior to the filing of the original bill. Burke v. Smith, 15 
 Illinois, 158. On demurrer, however, the Court cannot inquire into 
 the competency or regularity of an amendment previously allowed by the 
 order of the Court. McGehee v. Jones, 10 Geo. 127. An injunction 
 or other sworn bill cannot be amended by striking out material and sub- 
 stantial allegations and charges ; but only by addition of explanatory or 
 supplemental statements : Carey v. Smith, 11 Geo. 589 ; and in such 
 case the amendment must also be verified under oath. The complainant 
 also must show a sufficient excuse, and the application must be made as 
 soon as the necessity is discovered. Ibid. McDougald v. Dougherty, 11 
 Geo. 570. Where the new matter would affect the opposite party pre- 
 judicially, it should not have relation back to the time of filing the 
 original bill, but the suit should be considered as pending only from the 
 time of amendment. McDougald v. Dougherty, 11 Geo. 570. On an 
 amendment, however trifling, at any time before answer, the general 
 rule is, though its reasonableness has been doubted, that the defendant 
 may demur de novo to the whole bill. But where the amendment is 
 made after a demurrer made and decided and answer filed, the defendant 
 cannot demur again to the whole bill, unless the amendment is so far 
 material as to vary the case made by the original bill, and change the 
 complainant's equity. Booth v. Stamper, 10 Geo. 109. After the 
 pleadings are made up, and the cause set down for trial, the bill is not 
 amendable, except within the discretion of the Court upon special cause 
 shown ; and this whether it be a sworn bill or not. If an amendment 
 be made after issue joined, without order and verification in a sworn bill, 
 it will be struck out on motion. Molyneaux v. Collier, ,18 Geo. 406; 
 see Miohan v. Wyatt, 21 Alab. 813. An amended bill is to be con- 
 sidered in many respects as an original bill : Carey v. Smith, 11 Geo. 
 539 ; and when a new defendant is added, it is entirely original as to 
 him, and he is entitled to the same time to plead, answer, and demur, as 
 to an original suit. Hoxey v. Carey, 12 Geo. 534. 
 
 See, on the subject of amendments, Kules in Equity in the U. S. 
 
OF THE DEFENCE. 715 
 
 sufficiency is admitted or determined. If the answer be 
 insuflBcient, he is remitted to his former right of amend- 
 ing 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 amendment may be either to vary or add to the case 
 originally made, or to meet the defence by new matter. 
 The old method of doing this was by a special replica- 
 tion, followed up, if necessary, by rejoinder, surrejoinder, 
 &c., according to the forms of pleading at law. But the 
 modern practice is to amend the bill. If the amend- 
 ments make further discovery requisite, the plaintiff 
 may call for a further answer. And if he has success- 
 fully 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 neverthe- 
 less 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 special cir- 
 cumstances obtain a similar indulgence ;' but as an an- 
 
 (fl!) Orders of May, 1845, Ixix, kx, Ixxi; 1 Dan. C. P. 376, 400. 
 
 Courts, Nos. xxviii, xxxv, xlvi ; in Pennsylvania, Nos. xxvi, &c., 
 xxxii, xliv. Under which it is held that an amendment to a bill in 
 equity, which would so change its character as to make it substantially 
 a new case, will not be allowed after the cause has been argued ; espe- 
 cially when no evidence is offered to show that the amendment could 
 not have been made part of the original bill. Snead v. McCoull, 12 
 How. U. S. 407.] 
 
 '■ In mere matters of form, or mistakes of dates, or verbal inaccuracies, 
 Courts of Equity are very indulgent in allowing amendments of an- 
 swers; but reluctant to allow amendments in material facts, or such as 
 essentially change the ground taken in the original answer. Smith v. 
 
716 ADAMS'S DOCTRINE OF EQUITY, 
 
 swer is put in on oath, the Court, for obvious reasons, 
 will not readily suffer alterations to be made. 
 
 Such permission, however, may be obtained on a fiiU 
 and satisfactory affidavit showing the cause of the omis- 
 sion and the new matter intended to be introduced, 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 diligence have known them. 
 And the like indulgence has been given, where the de- 
 r*R471 f^'^*^^"^ had been *induced to leave out a fact in 
 the original answer by the mistaken advice of 
 his solicitor.' But the Court is always unwilling to give 
 
 Babcock, 3 Sumner, 583 ; see, also Jackson v. Outright, 5 Munf. 308 ; 
 McWilliams v. Herndon, 8 Dana, 568 ; Stephens v. Terrel, 3 Monr. 
 131 ; [Carey v. Ector, 7 Geo. 99 ; Thomas v. Doub, 1 Maryl. R. 252 ; 
 Mounce v. Byars, 11 Geo. 180. As a general rule, a special case must 
 be shown, before the Court will allow a defendant to amend his answer. 
 Amendments, however, will be allowed where new matter has come to 
 the knowledge of the defendant since his answer was filed, or in case of 
 surprise or mistake, or where an addition has been made to the draft of 
 the answer after the defendant has perused it ; and in some other special 
 cases. The unwillingness of the Court to permit a defendant to change 
 or add to the grounds of defence set up in the first answer, is increased, 
 where the application is made after the opinion of the Court and the tes- 
 timony have indicated how it may be modified to accomplish his purposes. 
 Williams v. Savage Manufact. Co. 1 Maryl. Ch. 306. A motion for leave 
 to file a supplemental answer must be accompanied with an affidavit. 
 Thomas v. Doub, 1 Maryl. 252. 
 
 A defendant cannot evade the rule as to amending his answer, by means 
 of his answer to a supplemental bill, which must be restricted entirely to 
 the matters alleged in the latter. Swan v. Dent, 2 Maryl. Ch. 111. 
 See further, on this subject, Phelps v. Prothero, 2 De G. & Sm. 274.] 
 ' 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 ad- 
 vised him that he could take advantage of such defence without plead- 
 ing. Jackson v. Outright, 5 Munf. 308. 
 
OF THE DEFENCE. 717 
 
 this permission, where the new matter would be preju- 
 dicial to the plaintiff, though it will be inclined to yield 
 if it is intended for his benefit.* If the error to be cor- 
 rected 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 de- 
 fendant cannot obtain permission to file a supplemental 
 answer, he has no other way of correcting his original 
 answer. He cannot do so by filing a cross bill. (/) 
 
 The final result of the pleadings is that the ultimately 
 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 bear- 
 ing on his own case. If the answer admits his claim, 
 and he is content that it shall be taken as true through- 
 out, 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 replica- 
 tion, stating the course he intends to pursue -^ and it is 
 
 (e) Curling v. Townshend, 19 Ves. 628 ; Greenwood v. Atkinson, 4 
 Sim. 54; Fulton v. Gilmore, 1 Ph. 522; Bell v. Dunmore, 7 Bea. 283 ; 
 1 Dan. 0. P. 752, 757. 
 
 (/) Berkley v. Eider, 2 Ves. 533, 587. 
 
 ' See Western Reserve Bank v. Stryker, 1 Clarke's C. R. 380, 383 ; 
 [Mounce v. Byars, 11 Geo. 180.] 
 
 * [Special replications are now disused. White v. Morrison, 11 lUin. 
 361 ; Duponti v. Mussy, 4 Wash. C. C. 128 ; and are expressly prohi- 
 bited by the rules in equity of the U. S. Courts, No. xlv, and of Penna. 
 xliii. The general replication, however, puts in issue only the allegations 
 of bill and answer. The proper course is for the complainant, if he is 
 
718 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 respective 
 cases, (/i) If the plaintiff omit to file a replication in 
 time, the defendant may dismiss the bill for want of 
 prosecution, (i) ' 
 
 (g) Orders of May, 1845, xciii. 
 
 (K) 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. 
 
 aware of an intended defence, to anticipate it in his bill by suitable 
 charges and allegations ; or he may have leave to amend on motion, 
 where necessary. White v. Morrison ; Duponti v. Mussy. Joining 
 issue on an answer is a waiver of any mere technical objections to the 
 form in which the defences in such answer are presented. McKim v. 
 White Hall Co. 2 Maryl. Ch. 510.] 
 
 ' [See equity rules U. S. Courts, No. Ixvi ; of Pennsylvania, No. Ixii, 
 
 Where a suit becomes nugatory by matters subsequent, as where filed 
 
 on the authority of a reported case, afterwards reversed, the Court has 
 
 jurisdiction, on motion, to dismiss it without costs. Sutton, &c. Co. v. 
 
 Kitchens, 15 Beav. 161. 
 
 A plaintiff in Chancery has a right to dismiss his bill at any time be- 
 fore final hearing upon payment of costs, if he be not in contempt. 
 Elderkin v. Fitch, 2 Carter (Ind.), 90.] 
 
OF INTERLOCUTORY ORDERS. 719 
 
 *CHAPTER V. [*348] 
 
 OF INTEKLOCUTORT ORDERS. 
 
 The answer of the defendant is the chief foundation 
 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 orders 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 regular examination 
 of witnesses, but by the affidavits of voluntary depo- 
 nents, (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 petitions 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 cause shown. Where the applica- 
 
 (a) 2 Dan. C. P. C. 30, of Affidavits. 
 
720 ADAMS'S DOCTRINE OF EQUITY. 
 
 tion 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 
 L -' served on all parties interested. (6) 
 
 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 sta- 
 tute, 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. (tZ) 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 conr 
 fesso, 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 appoint- 
 ment of a receiver ; 4. The grant of an injunction; and 
 5. A writ of ne exeat regno. 
 
 (V) 2 Dan. C. P. C. 31 ; Interlocutory Applieation. 
 (c) Supra, Introduction, 2 Dan. C. P. c. 40. 
 (rf) Supra, Infants, 2 Dan. C. P. 29. 
 
OF INTERLOCUTORY ORDERS. 721 
 
 I. The production of documents is ordered for comple- 
 tion 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 sub- 
 ject-matter of the suit. But the documents still remain 
 to be examined, and *the information which they r^oe-r.-, 
 contain is frequently the most important part of ^ 
 
 the discovery. For the purpose of obtaining such exa- 
 mination, the plaintiff is entitled, either before or after 
 the sufficiency of the answer has been determined, and 
 without 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 con- 
 stant use in the defendant's business, then in the defen- 
 dant's own office. (^) 
 
 The doctrines by which production is regulated have 
 been already discussed in reference to discovery, 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 ex- 
 
 (e) 2 Dan. C. P. c. 38. 
 
 (/) Lane v. Paul, 3 Bea. 66 ; Fencott v. Clarke, 6 Sim. 8. 
 
 (^) Prentice v. Phillips, 2 Hare, 152. 
 
 ' [See on this subject, ante, B. i, oh. 1.] 
 46 
 
722 ADAMS'S DOCTEINE OF EQUITY. 
 
 istence of the right must be shown from admissions 
 in the answer that the documents are in the defen- 
 dant'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 de- 
 fence has been produced 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 defen- 
 dant *has attempted to explain them by a counter 
 L -■ affidavit, this order has been made before answer 
 on the admissions in the defendant's affidavit, (i) But the 
 general rule is, that it shall not be made until the an- 
 swer 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 regu- 
 larly 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 op- 
 portunity of proof (Z;) The admissions necessary to war- 
 rant the order are, first, that the defendant has the fund 
 
 (h) 2 Dan. C. P. c. 36. 
 (0 Jervis v. White, 6 Ves. 738. 
 
 (/<;) Richardson v. Bank of England, 4 M. & C. 165, 176 ; Bosehetti 
 V. Power, 8 Beav. 98. 
 
 ' [See, on this subject, Hosack v. Eogers, 9 Paige, 468 ; Clagett v. 
 Hall, 9 Gill & John. 81 ; Contee v. Dawson, 2 Bland, 293 ; Nokes v. 
 Seppings, 2 Phillips, 19 ; Maddox v. Dent, 4 Maryl. Ch. 543.] 
 
OF INTERLOCUTORY ORDERS. 723 
 
 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 ap- 
 plicant is interested in it. (ly 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 directions, either on admission in the examina- 
 tion 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 decision 
 of the cause may be made. The Court will not, there- 
 fore, indirectly adjudicate on the right, as, for example, 
 by directing payment of interest to one of the litigants, 
 
 (T) 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. Capell, 6 Mad. 114. 
 
 ' [Those who make the motion to have money brought into Court, 
 must show that they have an interest in the sum proposed to be called 
 in, and that he who holds it in his possession, has no equitable right to 
 it whatever ; and the facts on which these positions are based, mnst be 
 found in the case as it then stands, either admitted or so established as 
 to be open to no further controversy at any subsequent stage of the pro- 
 ceedings. Hopkins v. McEldery, 4 Maryl. Ch. 23. A contingent inte- 
 rest, however, is suflScient to entitle a party to move. Koss v. Ross, 12 
 Beav. 89; Bartlett v. Bartlett, 4 Hare, 631. A final order upon a peti- 
 tion asking the defendant to bring money into Court for the purpose ©f 
 investment, cannot be passed without notice to, or hearing of, the oppo- 
 site party, who has answered the petition, and objected to the applica- 
 tion. Brooks V. Dent, 4 Maryl. Ch. 473.] 
 
 ' [The order cannot be made on motion after decree, and before hear- 
 ing on further directions, merely on admissions in the answers. Binna 
 V. Parr, 7 Hare, 288 ; Wright v. Lukes, 13 Beav. 107.] 
 
724 ADAMS'S DOCTRINK OF EQUITY, 
 
 but will retain the fund untouched until the hearing of 
 the cause, (w) 
 
 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 a mere payment of a debt claimed 
 as due from the defendant to the plaintiff. But to this 
 rule there are *two apparent exceptions : the one 
 L "'-' 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 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.(^) 
 
 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 accu- 
 mulations thereouj may be laid out in the purchase of 
 three per cent, consols. 
 
 (n) Nedby v. Nedby, 4 M. & C. 367. 
 (o) Eiehardson v. Bank of England, 4 M. & C. 165. 
 (p) Morgan v. Shaw, 2 Meriv. 138 ; Tindal v. Cobham, 2 M. & K. 
 385 ; Cutler v. Simons, 2 Meriv. 103. 
 
OF INTERLOCUTORY ORDERS. 725 
 
 If the object is to obtain a transfer of stock, the terms 
 of the notice are varied accordingly. 
 
 in. A receiver is appointed where an estate or fund 
 is in existence, but there is no competent person en- 
 titled to hold it, or the person so entitled is in the 
 nature of a trustee, and is misusing or misapplying the 
 property. (2)' 
 
 The former of these grounds applies where the owner 
 of property is dead, and probate or administration has 
 not been granted, but is hona fide litigated in the Eccle- 
 siastical Courts. In this case a receiver will be ap- 
 pointed 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, and the pendency of L -■ 
 litigation to recall the grant will not warrant a re- 
 
 (2) 2 Dan. C. P. c. 35. 
 
 ' [A Court of equity will appoint a receiver, whenever it can be made 
 to appear that the property, in regard to which the controversy exists, is 
 in danger. Ladd v. Harvey, 1 Foster (N. H.), 514. But it must be 
 a strong case that will justify such appointment, which is the ultimate 
 resort of a Court of equity. It is a high power, never exercised where 
 there exists any other safe or expedient remedy. Speights v. Peters, 
 9 Gill, 472 ; Dougherty v. McDougald, 10 Geo. 121 ; Furlong v. Ed- 
 wards, 3 Maryl. E. 99. 
 
 The granting of a receiver is a matter of discretion, to be governed by 
 a view of the whole circumstances of the case, one of such circumstances 
 being the probability of the plaintiff being ultimately entitled to a de- 
 cree. Thus a receiver was refused in a case where important points 
 arose upon the construction of deeds, that construction being attended 
 with considerable doubt and difficulty, Owen v. Homan, 3 Macn. & Gr. 
 378 j S. C. 4 House Lds. Cas. 997 ; see Lenox v. Notrebe, 1 Hemp- 
 stead, 225.] 
 
726 Adams's doctrine of equitt. 
 
 ceiver.(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 himself 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 dan- 
 ger. 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 trus- 
 tee, holds the property subject to clear equities in other 
 parties, but is using it in a manner inconsistent 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, with- 
 out prejudice to his taking possession ; but, if he be in 
 possession, a receiver cannot be ordered against him un- 
 less the applicant will pay off his demand, as he states 
 
 (»•) 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. Reed, 1 Hare, 
 434 ; Bainbrigge t. Blair, 3 Bea. 421 ; Skinners' Company v. Irish 
 Society, 1 M. & C. 162. 
 
 ' [Although there is no rule of practice that, in cases where the will 
 is in contest in the Ecclesiastical Court, the Court of Chancery will not 
 grant a receiver where the property is in the hands of the executor, yet 
 it must be clearly shown that the nature and position of the Court are 
 such as to warrant the interference of the Court. Whitworth v. Whyd- 
 don, 2 Maon. & G. 56 ; S. C. 2 H. & Tw. 445 ; 14 Jur. 152. In Dimes 
 V. Steinberg, 2 Sm. & Giff. 75, however, an injunction and receiver were 
 granted pending a suit to recall probate of a will alleged to have been 
 fraudulently obtained by the executor and a legatee.] 
 
OF INTERLOCUTORY ORDERS. 72T 
 
 it himself. A legal mortgagee cannot have a receiver, 
 but must take possession under his legal title.(i) 
 
 If there are several equitable incumbrancers the 
 Court will put the property in the possession of a re- 
 ceiver, to apply the profits for their benefit according to 
 their respective priorities, permitting legal incumbran- 
 cers 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 between 
 vendor and purchaser during a suit for specific '- '^ J 
 performance ; but the order was made under special cir- 
 cumstances, 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 partner- 
 ship, where one of the partners, having got the business 
 into his hands, is destroying the partnership property, 
 or is claiming to exclude his copartners from the con- 
 cern. 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 exclude all for the pro- 
 tection of all, and will appoint a receiver to get in the 
 assets. It cannot, however, undertake to carry on the 
 trade, and will therefore only interpose with a view to 
 dissolution, (w)' On the same principle, a receiver may 
 
 (0 Berney v. Sewall, 1 Jac. & W. 627. 
 
 [u) Davis V. Marlborough, 2 Sw. 138 ; Angel v. Smith, 9 Ves, 335 ; 
 Brooks V. G-reathed, 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. 
 
 (w) Waters v. Taylor, 15 Ves. 10 ; Goodman v. Whiteomb, 1 J. & 
 
 ' See note 1, p. 241, supra. 
 
728 ADAMS'S DOCTRINE Or EQUITY. 
 
 be appointed of a mine or colliery, which is regarded 
 rather as a trade or partnership than as a mere tenancy 
 in common. (x) In the case of a mere tenancy in com- 
 mon, 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 money 
 
 *into Court, may be ordered on afiidavit before 
 
 L -J answer, or even before the defendant has appeared, 
 
 if any urgent necessity exist.^ But the application must 
 
 W. 589 j Hale v. Hale, 4 Bea. 369; Const v. Harris, T. & K. 496; 
 Smith V. Jeyes, 4 Bea. 503. 
 
 (a;) Jefferys v. Smith, IJ. & W. 298. 
 
 (y) Tyson v. Fairclough, 2 S. & S. 142. 
 
 (2) Stilwell V. Wilkins, Jac. 280 ; Huguenin v. Basely, 13 Ves. 
 105 ; Jones v. Goodrich, 10 Sim. 327 ; Clark v. Dew, 1 K. & M. 103; 
 Toldervy v. Colt, 1 Y. & C. 621. 
 
 ^ [See, however, Williams v. Jenkins, 11 Geo. 595.] 
 ' [And the Court will not, in general, interfere at the instance of a 
 person alleging a legal title in himself, against other persons, who are 
 in possession of the estates, to grant him a receiver or put them out of 
 possession. Talbot v. Scott, 27 L. J. Ch. 278.] 
 
 ' [A temporary or ad interim receiver may not only be appointed be- 
 fore answer, but even before the suhpcena to appear and answer has been 
 served, when it is shown that extraordinary danger would ensue unless 
 the property were taken under the care of the Court. Jones v. Dough- 
 erty, 10 Geo. 274 ; Williams v. Jenkins, 11 Id. 595.] 
 
OF INTERLOCUTORY ORDERS. 729 
 
 generally be made after answer, and must be supported 
 by the admissions of the defendant, (a) 
 
 The appointment, when made, is for the benefit of all 
 parties interested, and not for that of the applicant 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 different parties, the possession of the 
 receiver is treated as the possession of the party who 
 ultimately establishes his right. (6)^ 
 
 (a) Lloyd V. Passingham, 3 Meriv. 697 ; Kamsbottoni v. Freeman, 
 4 Bea. 145. 
 
 (i) Bainbrigge v. Blair, 3 Bea. 421 ; Sharp v. Carter, 3 P. Wms. 
 379. 
 
 ' [The appointment of a receiver does not determine any right, or 
 affect the title of either party in any manner whatever ; he is the officer 
 of the Court, and his holding is the holding of the Court for him from 
 whom the possession was taken. He is appointed on behalf of all par- 
 ties ; and his appointment is not to oust any party of his right to the pos- 
 session, but merely to retain it for the benefit of the party ultimately en- 
 titled ; and when he is ascertained, the receiver will be considered as Jiis 
 receiver. Ellicott v. Warford, 4 Maryl. E. 80 ; Matter of Colvin, 3 
 Maryl. Ch. 280. See further, as to the power and authorities of receivers. 
 Porter v. Williams, 5 Selden, 142 ; Receivers v. Patterson Gaslight Co. 
 3 Zabrisk. 283. 
 
 Where a receiver is appointed, but the bill is afterwards dismissed for 
 want of equity, the functions of the receiver cease, inter partes, but his 
 accountability as an officer of the Court continues. The fund remains 
 subject to the order of the Court, and will be returned thereby to the 
 party as whose fund it was taken, unless retained upon a claim properly 
 made and presented to the Chancellor. A party having a claim on a 
 fund so situated will be allowed to intervene, pro interesse suo, upon a 
 proper application. But the receiver, as such, is not subject to the pro- 
 cess of garnishment. Field v. Jones, 11 Geo. 413. 
 
 It is not necessary to bring to a hearing a suit for the appointment of 
 a Teoeherpendente lite. Anderson v. Guichard, 9 Hare, 275.] 
 
730 Adams's doctrine of equity. 
 
 IV. An injunction is granted 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, (c) 
 
 The principle of injunctive relief by decree has already 
 been considered as an independent subject. (cZ) We are 
 now only concerned with the interlocutory 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 particular 
 cases, where giving notice might accelerate the mischief, 
 it will be granted ex parte and without notice ; e. gr., in 
 cases of waste, or of negotiating 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 injunction may be obtained. In order to 
 obtain an injunction ex parte, the application must be 
 made at the *first possible moment, and all the 
 L *^ -■ facts must be fully and honestly stated ; if any 
 concealment- or misrepresentation be detected, the in- 
 junction will be dissolved, although the facts, if truly 
 stated, would have been sufficient to sustain it.(e)' 
 
 (c) 2 Dan. C. P. ch. 32. (d) Supra, Injunction, 
 
 (e) Hilton V. Granville, 4 Bea. 130. 
 
 ^ It ia 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 ; McFarland v. McDowell, 1 Car. Law. Rep. 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. HoUowell, 
 
OF INTEKLOCUTORT ORDERS. 731 
 
 If the injunction be applied for before the answer, it 
 must necessarily be sustained on affidavit ; and the de- 
 
 5 Ired. Eq. 24; Williams v. Berry, 3 Stew. & Port. K. 284 ; Green v. 
 Phillips, 6 Ired. Eq. 223; Wakeraan v. Gillespy, 5 Paige, 112 ; Stouten- 
 burgh V. Peck, 3 Green Ch. 446 ; Hollister v. Barkley, 9 N. H. 230 ; 
 Eldred v. Camp, Harring. C. R. 163 ; [Freeman v. Elmendorf, 3 Halst. 
 Ch. 655 ; Adams v. Whiteford, 9 Gill, 501 ; Furlong v. Edwards, 3 
 Marjl. E. 99 ; Dennis v. Green, 8 Geo. 197 ; Wood v. Patterson, 4 
 Maryl. Ch. 335 ; Harris v. Sangston, Id. 394 ; Woodworth v. Eogers, 
 8 Wood. & M. 135 ; Wright v. Grist, 1 Busb. Eq. 203 ; Mahon v. 
 Central Bank, 17 Geo. Ill ; Greenon v. Hoey, 1 Stockt. 137. On 
 motion to dissolve an injunction upon answer, exceptions filed are no 
 objection to the motion, unless they affect the answer in points relating 
 to the grounds of the injunction. Lewis v. Leak, 9 Geo. 95. 
 
 An answer made and sworn to before defendant's death, though filed 
 subsequently, may be used on a motion to dissolve the injunction. Dennis 
 V. Green, 8 Geo. 197. 
 
 Where the bill shows no equity on its face, the injunction will of 
 course be dissolved. Stark v. Wood, 9 Gratt. 40.] 
 
 It is a general rule, that an injunction will not be dissolved, on an- 
 swer, until the answers of all tbe defendants are put in. [See Money 
 V. Jordan, 13 Beav. 229.] 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. E,. 342. 
 [Or parties who cannot be compelled to answer, as a foreign corporation. 
 Bait. & Ohio E. E. v. Wheeling, 13 Gratt. 40.] 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 defendants 
 have not answered. Dunlap v. Clements, 7 Alab. E. 539 ; Coleman v. 
 Gage, 1 Clarke E. 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 ; Stoutenburgh v. Peck, 3 Green Ch. 446 ; Vliet v. Low- 
 mason, 1 Green Ch. 404; Price v. Clevenger, 2 Green Ch. 207. See also 
 Goodwyn v. State Bank, 4 Desau. R. 389. 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 speed his cause. Depeyster v. Graves, 
 uU supra. See also Bond v. Hendricks, 1 A. K. Marsh. 594. 
 
 Upon an application to dissolve an injunction on bill and answer, the 
 
732 ADAMS'S DOCTRINE OF EQUITY. 
 
 fend ant may resist it on counter affidavits ; or if it has 
 been obtained ex parte, they may move to dissolve it on 
 
 defendant's answer is entitled to the same credit as the complainant's 
 bill. It therefore makes no diflference on such an application that the 
 bill is supported by the oaths of several complainants. Manchester t. 
 Dey, 6 Paige, '295. 
 
 There is, however, no inflexible rule with regard to dissolving an in- 
 junction, on answer denying the allegations of the bill ; the granting 
 and continuing an injunction 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. E. 204; Poor v. Carleton, 3 Sumner, 70; Bank 
 of Monroe v. Schermerhorn, 1 Clarke, 303 ; [Holt v. Bank of Augusta, 
 9 Geo. 552; Nelson v. Robinson, 1 Hempst. 474; Crutchfield v. Donelly, 
 16 Geo. 432 ; Dent v. Summerlin, 12 Geo. 5. Thus in some special 
 cases, as where fraud is the gravamen of the bill, the injunction will be 
 continued, though the defendant has fully answered the equity charged. 
 Dent v. Summerlin, ut supr. Nelson v. Robinson, 1 Hempst. 464 ; 
 Semmes v. Mayor of Columbus,. 19 Geo. 471. J 
 
 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; 
 Hutchins v. Hope, 12 Gill & J. 244 ; Lyrely v. Wheeler, 3 Ired. Eq. 
 170; Nelson v. Owen, Id. 175; [Drury v. Roberts, 2 Maryl. Ch..l57; 
 Rembort v. Brown, 17 Alab. 667 ; Deaver v. Erwin, 7 Ired. Eq. 250 ; 
 Lewis V. Leak, 9 Geo. 95; Hutchins v. Hope, 7 Gill, 119; Wilson v. 
 Mace, 2 Jones Eq. 5, 149. Thus, for example, where the bill charges 
 the receipt of money, and a general accountability, and the answer ad- 
 mits the receipt, and seeks to account for the money by alleging its ap- 
 plication to some particular purpose, then the injunction will not be dis- 
 solved on the answer. But when the bill charges payment on a particular 
 account, and the answer denies that any payment was made on that ac- 
 count, and accompanies the denial with an admission that a certain sum 
 was received, as a payment on some other account, then the injunction 
 will be dissolved ; for there is no confession and avoidance by new mat- 
 ter, but a positive denial of the allegation, together with an explanation 
 of a circumstance relied on to give color to an allegation. Deaver v. 
 Erwin, 7 Ired. Eq. 250. 
 
 So upon motion to dissolve, credit can only be given to the answer ra 
 so far as it speaks of responsive matters, within the personal knowledge 
 
, OF INTERLOCUTORY ORDERS. 733 
 
 counter affidavits, or may wait until he has filed his 
 answer, and then move to dissolve. 
 
 of the defendant, and unless, so speaking, the equity of the bill is sworn 
 away, the injunction cannot be dissolved. And, on the other hand, so 
 much of the bill as is not denied by the answer is taken as true, and if 
 any one of its material allegations remains unanswered, the injunction 
 will be continued. Brown v. Stewart, 1 Maryl. Ch. 87 ; Doub v. Barnes, 
 Id. 127 ; Cronise v. Clark, 4 Maryl. Ch. 403 ; Rembert v. Brown, 17 
 Alab. 667; Horn v. Thomas, 19 Geo. 270; Wheat v. Moss, 16 Ark. 
 243. So where a supplemental bill has been filed. Rogers v. Solomons, 
 17 Geo. 598.] 
 
 So the injunction cannot be dissolved, if the answer be evasive and 
 apparently deficient in frankness, candor, or precision. Little v. Marsh, 
 2 Ired. Eq. 18 ; Williams v. Hall, 1 Bland C. R. 104'; [Swift v. Swift, 
 13 Geo. 140; Deaver v. Eller, 7 Ired. Eq. 24.] Nor if it be contra- 
 dictory. Tong V. Oliver, 1 Bland C. R. 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 Bokkelen, 1 
 Paige, 100 ; Apthorpe v. Comstock, Hopkins R. 148 ; Poor v. Carleton, 
 8 Sumner, 70 ; [Doub v. Barnes, 1 Maryl. Ch. 127 ; Nelson v. Robin- 
 son, 1 Hempst. 464; Calloway v. Jones, 19 Geo. 277. See, however, 
 Ashe V. Johnson, 2 Jones Eq. 49.] 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 dissolved on the bill and an- 
 swer alone. Rodgers v. Rodgers, 1 Paige, 426 ; Quackenbush v. Van 
 Kiper, Saxton R. 476; Everly v. Rice, 3 Green Ch. 553; [Coffee v. 
 Newsom, 8 Geo. 444.] 
 
 [An injunction may be partially dissolved in accordance with the case 
 made out by the answer. Edwards v. Perryman, 18 Geo. 374; or it 
 may be revived after a dissolution on the merits, or awarded afresh on 
 special motion, or new fa9ts stated in an amended or supplemental bill, 
 or on proof taken. Thicker v. Carpenter, 1 Hemp. 440; Rogers v. 
 Solomons, 17 Geo. 598 ; but see France v. France, 4 Halst. Ch. 619.] 
 
 [In general, no affidavits can be read in contradiction of the answer 
 denying the equity of the bill ; but in certain excepted cases, as nui- 
 sance, waste, id& trespass, where irreparable damage might ensue upon 
 the refusal ori^Mution of the injunction, such affidavits will be allowed, 
 and the cont^Uance of the injunction will be within the discretion of 
 the Court, whether, upon the whole evidence, more injury will be done 
 
734 Adams's doctrine op equity. 
 
 If the motion, either to grant or dissolve the injunc- 
 tion, is heard after answer, the admissibility of affidavits 
 is a questionable point. 
 
 to the complainant by withholding, or to the defendant by granting the 
 injunction. Waring v. Cram, 1 Pars. Eq. 523 ; Smith v. Cummings, 
 
 2 Id. 92; Poor v. Carleton, 3 Sumn. 70; Village of Sen. Palls v. Mat- 
 thews, 9 Paige, 504; Lessig v. Langton, Bright N. P. 191; see Shrews- 
 bury, &c. R. R. V. London, &o. E. E. 3 Macn. & Q. 70. 
 
 In cases of imminent danger of injury to the complainant, a tempo- 
 rary injunction will be granted on filing amendments to a bill after ap- 
 pearance, but the injunction will be accompanied with an order to show 
 cause why the bill should not be amended, and why the injunction should 
 not be continued. Hayes v. Heyer, 4 Sandf. Ch. 485. So a prelimi- 
 nary injunction will not be refused, for error in a bill which is amend- 
 able, though the amendment has not been actually made, as in the case 
 of a bill by parties in their own instead of in a corporate capacity. Packer 
 V. Sunbury, &c. E. E. 19 Penn. St. 211. 
 
 The common injunction having been dissolved in an original bill, can- 
 not be obtained as of course on an amended bill, for default before ap- 
 pearance. Zulueta V. Vinent, 14 Beav. 209 ; contra, Eyton v. Mostyn, 
 
 3 De a. & Sm. 518. 
 
 In general, in this country, no injunction can be obtained without 
 notice. The Eule in U. S. Courts, in Equity, No. Iv, and Penna. No. 
 liii, is as follows : — 
 
 Whenever an injunction is asked for by the bill to stay proceedings 
 at law, if the defendant does not enter his appearance and plead, demur, 
 or answer to the same within the time prescribed therefor, by those rules, 
 the plaintiff shall be entitled as of course, upon motion and notice, to 
 such injunction. But special injunctions shall be grantable only upon 
 due notice to the other party by the Court in term, or by a judge thereof 
 in vacation, after a hearing, which maybe ex parte, i{ the adverse party 
 does not appear at the time and place ordered. 
 
 In most of the States, the complainant is also obliged to give bond 
 before an injunction can issue; and in Pennsylvania the commonwealth 
 itself has been held to be comprehended within a statutory provision to 
 that effect. Comm. v. Franklin Can. Co. 21 Penn. St. 117. But an 
 omission to give bond is not a ground for dismissing an injunction bill. 
 Gueray v. Durham, 11 Geo. 9. An injunction directed to a corporate 
 body, is binding not only on the corporation, but every individual mem- 
 
OF INTEELOCUTORT ORDERS. 735 
 
 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 hearing. (/) 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 an- 
 swer, 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 an- 
 swer. 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. (A) ^ 
 
 (/) Manser v. Jenner, 2 H. 603 ; Clapham v. White, 8 Ves. 36. 
 
 ((7) Barrett v. Tickell, Jao. 156; Morgan v. Goode, 3 Meriv. 10; 
 Ord V. White, 3 Bea. 357 ; Castellain v. Blumenthal, 12 Sim. 47 ; 
 Edwards v. Jones, 1 Ph. 501. 
 
 (h) Jefferys v. Smith, 1 J. & W. 300 ; Sraythe v. Smyths, 1 Sw. 
 252 ; Lloyd v. Jenkins, 4 Bea. 230 ; Gardner v. McCutcheon, 4 Bea. 
 534 ; Manser v. Jenner, 2 Hare, 600. 
 
 ber. Davis v. Mayor, &c. of N. Y. 1 Duer, 451. Where it forbids 
 performance of any corporate act, it is violated by every member of the 
 corporate body, by whose assent or co-operation the act so forbidden is 
 performed ; and, every such member is guilty of a contempt, for which 
 he may be punished. An injunction which forbids a corporation to 
 make a particular grant is violated by the passage of an ordinance or 
 resolution, as a corporate act, which by its terms is meant to operate as 
 the grant which is prohibited. Every member, therefore, who votes for 
 the adoption of such an ordinance, commits a breach of the injunction, 
 and is guilty of a contempt. Ibid.] 
 1 See Kinsler v. Clarke, 2 Hill C. K. 620. 
 
736 ADAMS'S DOCTRINE OF EQUITY, 
 
 *The grant of the interlocutory injunction is 
 L -I discretionary with the Court ; and depends on 
 the circumstances of each case, and on the degree in 
 which the defendant or the plaintiff would respectively 
 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, susceptible 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 antici- 
 pated act would destroy the property, and affords, there- 
 fore, 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, how- 
 ever, an injunction is for such cause refused, and the 
 subject-matter of the suit is one of profit and loss, an in- 
 termediate 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 infringement. (&) 
 
 The injunction, if granted, is for intermediate protec- 
 tion 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) 
 
 (0 Hilton V. Granville, 1 Cr. & P. 283. 
 
 [jc) 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. 737 
 
 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 the Exche- 
 quer, and *service of it on the Bank. The dis- r^oco-i 
 iringas 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 jurisdiction to the Court of Chancery, a simi- 
 lar remedy was given by distringas issuable out of that 
 Court. And a further remedy was also given by a re- 
 straining order of the Court, to be summarily made on 
 petition or motion without bill filed, and to continue in 
 force until discharged, imperatively restraining the Bank, 
 or any public company, from permitting a transfer or pay- 
 ing a dividend, (m) 
 
 The interlocutory writ against proceeding at law, tech- 
 nically termed the common injunction, is obtainable 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 decla- 
 ration is delivered, it stays all the proceedings at law. 
 If afterwards, it only restrains execution, and the plain* 
 tiff at law is at liberty to proceed to judgment. But 
 the plaintiff in equity, on a second motion supported by 
 an affidavit, that he believes the answer will afford dis- 
 covery material to his defence, may obtain a further 
 order extending it to stay trial. And it would seem, 
 
 (m) 5 Vict. c. 5, s. 4 and 5 ; Orders of November, 1841 ; Ke Hert- 
 ford, 1 Hare, 584 ; 1 Ph. 129 ; 1 Ph. 203; 2 Dan. C. P. ch. 33, 
 
 47 
 
738 ADAMS'S DOCTRINE OF EQUITY. 
 
 though not free from doubt, that, on the answer coming 
 in, this further order may be discharged independently 
 of the original injunction, (n) 
 
 If the defendant is diligent enough to prevent the 
 common injunction from issuing by filing a suflBcient 
 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 *obtaining the common 
 L -J injunction, a special injunction may be obtained 
 on affidavit before answer ; but, except under very spe- 
 cial 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 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 ques- 
 tion 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 unwilling 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 de- 
 sires to try his liability at law, the injunction will be 
 
 (n) Earnshaw v. Thornhill, 18 Ves. 485 ; Rawson v. Samuel, 1 Cr. 
 & P. 167. 
 
 (o) Drummond v. Pigou, 2 M. & K. 168 ; Bailey v. Weston, 7 Sim. 
 666. 
 
OF INTERLOCUTORY ORDERS. 739 
 
 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 ob- 
 vious 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 re- 
 strained from issuing execution, if it appear that there 
 is an equitable question to be decided, before the Court 
 can safely allow the matter to be disposed of else- 
 where, (p) 
 
 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, (q) 
 
 *V. The writ of 7ie exeat(r) is a writ to restrain 
 
 • • r*3601 
 
 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 pur- 
 poses of state only, but is now extended to private trans- 
 actions, and operates in the nature of equitable bail.^ 
 It is grantable 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 
 
 (p) Playfair v. Thames Junction Kailway Company, 1 R. C. 640 ; 
 Barnard v. Wallis, Or. & P. 85 ; Bentinck v. Willink, 2 Hare, 11. 
 (q) Anon. 1 P. Wms. 301 ; Macnainara v. Macquire, 1 Dick. 223. 
 (r) 2 Dan. C. P. ch. 34. 
 
 ' See, in accordance, Dunham v. Jackson, 1 Paige, 629 ; Mitchell 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 ne exeat. Gernon v. Boecaline, 2 Wash. C. C. R. 130. 
 
740 ADAMS S DOCTRINE OF EQUITY. 
 
 to require bail.(s)^ It may be granted where there is a 
 concurrent jurisdiction at law, e. g., on bills for an ac- 
 
 (s) Jackson v. Petrie, 10 Ves. 164 ; Gardner t. , 15 Ves. 444 ; 
 
 Blaydes v. Calvert, 2 Jac. & W. 211 ; Whitehouse v. Partridge, 3 Sw. 
 365 ; Sealy v. Laird, 3 Sw. 368 ; Pearne v. Lisle, Amb. 75. 
 
 ^ A writ of ne exeat cannot be granted, unless, 1st, there be a precise 
 amount of debt due ; 2d, it be on an equitable demand, on which the 
 plaintiff cannot sue at law, except in cases of account, and a few others 
 of concurrent jurisdiction ; and third, the defendant be about to quit the 
 country, proved by affidavits as positive as those required to hold to bail 
 at law. Rhodes v. Cousins, 6 Eandolph, 188 ; [Wallace v. Duncan, 13 
 Geo. 41.] In Alabama and New York, a certain sum need not be sworn 
 to. Lucas v. Hickman, 2 Stewart, 111 ; Thorn 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 threat- 
 ened 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 effects, is an equitable and not 
 a legal demand, and the defendant may be arrested on a we exeat therein. 
 Ellingwood v. Stevenson, 4 Sandf. C. R. 366 ; see also Buford v. Fran- 
 cisco, 3 Dana, 68. 
 
 But the demand must be an equitable one, or within one of the excep- 
 tional cases of concurrent jurisdiction. The writ cannot 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. Haff, 5 Paige, 235 ; Williams v. Williams, 2 Green's 
 Ch. 130 ; [Hannahan v. Nichols, 17 Geo. 77.] 
 
OF INTEELOCUTORT ORDERS. 741 
 
 count, 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 
 jurisdiction, although his domicile may be abroad,(M) 
 but not if the plaintiff be himself resident abroad. (u)^ 
 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, (m;) It is applied for ex parte by petition or mo- 
 tion ;' and the application must be supported by affidavit, 
 stating the amount of the debt, and stating that the de- 
 fendant intends to go abroad, or his threats or declara- 
 tions 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 specified amount 
 
 (<) Boehm v. Wood, T. & R. 332 ; Raynes v. Wyse, 2 Meriv. 472 ; 
 Morris v. McNeil, 2 Euss. 604 ; Jenkins v. Parkinson, 2 M. & K. 5. 
 
 («) Howden v. Rogers, 1 Ves. & B. 129 ; Flack v. Holm, IJ. & W. 
 415. 
 
 (v) Smith V. Nethersole, 2 R. & M. 450. 
 
 (w) Collinson v. , 18 Ves. 353 ; Earned v. Laing, 13 Sim. 255. 
 
 [x) Rico 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. 
 
 ' See Mitchell v. Bunch, 2 Paige, 606; Porter v. Spencer, 2 Johns. 
 C. E. 169 ; Brown v. Haff, 5 Paige, 235. 
 
 ^ 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. Gilbert v. Colt, 1 Hopkins, 496. And it may issue on demands 
 arising abroad. Woodward v. Schatzell, 3 Johns. C. R. 412 ; Mitchell 
 V. Bunch, 2 Paige, 606. 
 
 ' It seems that a writ of ne exeat will not be granted on petition and 
 motion only, without a bill previously filed. Mattocks v. Tremain, 3 
 Johns. C. R. 75. 
 
742 ADAMS'S DOCTRINE OF EQUITY. 
 
 that he will not go beyond seas, or into Scotland, with- 
 out leave *of the Court, and in case he refuse to 
 L -I give such security, to commit him to safe cus- 
 tody. (2/)' 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 de- 
 posit or otherwise as shall satisfy the sheriff. (2) An 
 application to discharge the writ, if grounded on an 
 irregularity or impropriety in the grant, may be made 
 on affidavit, (a) But if it be on the merits, viz., be- 
 cause the defendant is not going out of the jurisdic- 
 tion, or because the plaintiff has no case, the answer 
 must be first put in. {by 
 
 (3/) Bernal v. Donegal, 11 Yes. 43. 
 (z) Boehm v. Wood, T. & E. 340. 
 (a) Grant v. Grant, 3 Euss. 598. 
 
 (i) Eussell V. Ashby, 5 Yes. 98 ; Jones v. Alephsin, 16 Yes. 470 ; 
 Leo T. Lambert, 3 Euss. 417. 
 
 ^ See, on the nature of the security, and the conditions of the defen- 
 dant's discharge, McNamara v. Dwyer, 7 Paige, 239; Mitchell v. Bunch, 
 2 Paige, 606 ; Ancrum v. Dawson, McMullan's Eq. 405 ; O'Connor v. 
 Debraine, 3 Edw. C. E. 230; Cowdin v. Cram, 8 Edw. C. K. 231; 
 [and, as to the damages recoverable, see Burnap v. Wight, 14 Illinois, 
 301.] 
 
 " See Nixon v. Eichardson, 4 Desau. 108. 
 
OF EVIDENCE. 743 
 
 *CH AFTER VI. [*362] 
 
 OF EVIDENCE.' 
 
 The next regular step after replication is, that the 
 parties should prove their case 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 pleading as are ma- 
 terial to the decree asked or resisted, and are not ad- 
 mitted 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, (a) If, for example, a bill be filed for 
 the administration of assets, or for the specific perform- 
 ance of an agreement 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 
 
 (a) Infra, Decree. 
 
 ' [See upon this subject, generally, Greenleaf's Evidence, vol. iii, 
 part vi, " Of Evidence in Proceedings in Equity." And also a valu- 
 able collection of American cases on the law of Equity Evidence, 
 in the Appendix to the 13th vol. of McKiuley and Lescure's Law 
 Library.] 
 
744 ADAMS'S DOCTRINE OF EQUITY. 
 
 second case, for an inquiry as to the validity of the ven- 
 dor's title. The plaintiff is not bound, therefore, before 
 the hearing, to prove every allegation iji such bills, but 
 should confine himself in the one case to estabhsh his 
 prima facie right by proof of his debt or relationship, 
 and in the other by proof of the agreement, or of such 
 other facts as will lay a foundation *for the in- 
 L Jquiry.(&) And in like manner, the defendant's 
 evidence 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 admission 
 in the suit, or are admitted by the pleadings as true, and 
 the party making the admission is competent 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, are unavailing, and the facts must 
 be proved by evidence.^ And admissions by husband 
 and wife cannot bind the wife's inheritance, (c) 
 
 The rules with respect to admissions by answer have 
 been already explained under the head of Discovery,^ 
 
 (U) Law V. Hunter, 1 Russ. 100 ; Tomlin v. Tomlin, 1 Hare, 240. 
 (c) Evans v. Cogan, 2 P. Wms. 449. 
 
 ' [See 3 Greenleaf s Evid. § 278. An infant, however, on coming of 
 age may be permitted to file another answer ; and if he unreasonably 
 delays to apply for leave to do this, he will be taken to have confirmed 
 his former answer, and it may be read against him. Id. § 279 ; see 
 "Watson v. Godwin, 4 Maryl. Ch. 25.] 
 
 ^ [A direct admission contained in the answer of a defendant, is, of 
 course, always evidence against him : 3 Greenl. Ev. § 277 ; even in a 
 subsequent suit. Royal v. MoKenzie, 25 Alab. 363. Though it is 
 otherwise where it is made upon information merely, and not upon in- 
 
OF EVIDENCE. 745 
 
 viz., that the answer of the defendant is evidence against 
 himself but not against a co-defendant; that the answer, 
 
 formation and belief. Id. § 282. Silence alone will not be construed 
 to be an admission, as to matters not charged to be within the knowledge 
 of the defendant. Lynn v. Boiling, 14 Alab. 753. And a complainant 
 cannot, in general, rely merely upon admissions in the answer as the 
 ground for relief, without having by his bill made them an integral part 
 of his case. Small v. Owings, 1 Maryl. Ch. 363. 
 
 The admissions in the answer of one defendant cannot usually be made 
 evidence to affect his co-defendants. 8 Greenl. Ev. § 288 ; ante, 20, 
 note; Briesch v. McCauley, 7 Gill, 189; Hitt v. Ormsbee, 12 III. 166; 
 Whiting V. Beebe, 7 Eng. Ark. 421 ; Glenn v. Grover, 8 Maryl. K. 
 212 ; Farley v. Bryant, 32 Maine, 474 ; Gilmore v. Patterson, 36 Id. 
 544; Blakeney v. Ferguson, 14 Ark. 641 ; Lenox v. Notrebe, 1 Hempst. 
 251 ; but see Miles v. Miles, 32 New Hamp. 147. Where, however, 
 partnership or privity is established between the defendants, or the 
 answer of one is referred to or relied on by the rest, it becomes evidence 
 against all. Greenl. ut supr. ; Clayton v. Thompson, 18 Geo. 206 ; Van 
 Keimsdyk v. Kane, 1 Gallis. 630 ; Chase v. Manhardt, 1 Bland. 336 ; 
 Whiting V. Beebe, 7 Eng. Ark. 421 ; Osborn v. U. S. Bank, 9 Wheat. 
 738; Judd v. Seaver, 8 Paige, 548 ; Dexter v. Arnold, 3 Sumn. 152 ; 
 though see, Winn v. Albert, 2 Maryl. Ch. 169 ; Gilmore v. Patterson, 
 36 Maine, 544; Blakeney v. Ferguson, 14 Arkansas, 641. So, where 
 the right of the complainant to a decree against one defendant is only 
 prevented from being complete by some questions between a second de- 
 fendant and the former, he may read the answer of the second defendant 
 for that purpose. Whiting v. Beebe, 7 Eng. Ark. 421, 
 
 On the other hand, the answer of a defendant, so far as it is respon- 
 sive to the bill, is evidence for him, and is conclusive, in general, unless 
 contradicted by two witnesses, or one witness, corroborated more or less 
 strongly by circumstances according to the nature of the case : ante, 21, 
 note; Horton's App. 13 Penn. St. 67; Ringgold v. Bryan, 3 Maryl. Ch. 
 488 ; Bank U. S. v. Beverly, 1 How. U. S. 134 ; Carpenter v. Prov. 
 &c. Ins. Co. 4 Id. 185 ; West v. Flanagan, 4 Maryl. R. 86 ; Brooks v. 
 Thomas, 8 Id. 367 ; Miles v. Miles, 32 N. H. 147 ; Busbee v. Little- 
 field, 33 Id. 76; Williams v. Philpot, 19 Geo. 567; Stouffer v. Machen, 
 16 111. 553; Dyer v. Bean, 15 Ark. 519 ; Autrey v. Cannon, 11 Texas, 
 110 ; Calkins v. Evans, 5 Ind. 441. But this must be taken with some 
 qualifications. Circumstances alone, independent of any direct proof, it 
 is said, may often justify and require a decree against the answer. White 
 
746 Adams's docteine of equity. 
 
 if replied to, cannot be evidence in favor of the defen- 
 dant, unless where a positive denial is opposed to the 
 
 V. Crew, 16 Geo. 416. It is not material in respect to the conclusive- 
 ness of the answer, that the equity of the complainant's hill is grounded 
 on allegations of fraud : McDonald v. McLeod, 1 Ired. 226 ; Murray v. 
 Blatohford, 1 Wend. 583 ; Dilly v. Bernard, 8 Gill & John. 171 ; Eberly 
 V. GrofiF, 21 Penn. St. 251 ; Morris & Essex K. K. Co. v. Blair, 1 Stockt. 
 635 ; or that proof upon the denial of the allegations of the bill is in'the 
 reach of the defendant, but is inaccessible to the complainant. Thomp- 
 son V. Diffenderfer, 1 Maryl. Ch. 487. So an answer responsive to the 
 charging part of the bill, or to allegations as to the motives and views 
 under which acts have been done, must be overborne by the same 
 testimony as in other cases. Smith v. Clark, 4 Paige, 368; Glenn 
 V. Grover, 3 Maryl. K. 212 ; but see Lea's Ex'rs v. Eidson, 9 Gratt. 
 277. 
 
 This general rule, however, is open to some exceptions. Thus it is 
 the prevailing doctrine in the United States, that it is not applicable to 
 an unsworn answer, though an answer under oath is not required by 
 bill, the rule being otherwise in England. See 3 Greenl. 286, note ; 
 Union Bank v. Geary, 5 Peters, 99 ; Patterson v. Gaines, 6 How. U. 
 S. 586 ; Bartlett v. Gale, 4 Paige, 503 ; Willis v. Henderson, 4 Scamm. 
 IB ; Tomlinson v. Lindley, 2 Carter, Ind. 569 ; McLard v. Linnville, 
 10 Humph. 163 ; Taggert v. Bolden, 10 Maryl. 104 ; but see Story 
 Eq. PI. § 875, &c. ; and it is so expressly provided by statutory and 
 judicial regulation in some States. Greenleaf, ut sup. See Bing- 
 ham V. Yeomans, 10 Cush. 58. It has, therefore, been held that the 
 answer of a corporation under seal only, cannot be relied on as evidence 
 in its favor, as though it were on oath. Lovett v. Steam &c. Ass. 6 
 Paige, 54 ; McLard v. Linnville, 10 Humph. 163 ; Maryl. &c. Co. v. 
 Wingert, 8 Gill, 170 ; State Bank v Edwards, 20 Alab. 512 ; contra, 
 Bayard v. Ches. & Del. Co. cited 8 Bland, 165. In Haight v. Morris 
 Aqueduct, 4 Wash. C. C. 601, however, such an answer was heldsufficient 
 to prevent the granting of an injunction ; and see Carpenter v. Prov. &c. 
 Ins. Co. 4 How. U. S. 218; and, in general, it will put in issue 
 allegations to which it is responsive, and throw on the complainant the 
 burden of proving them. Bait. iST Ohio E. K. Co. v. Wheeling, 13 
 Gratt. 40 ; Taggert v. Bolden, 10 Maryl. 104. In order to enable the 
 defendant to claim the protection of the general rule, moreover, the facts 
 stated in the answer must be responsive to the allegations and interroga- 
 tories of the bill, and the denial made must be positive and distinct, 
 
OF EVIDENCE. 747 
 
 testimony of a single witness, or where the question is 
 as to costs alone ; and that the plaintiff does not, by 
 
 not evasive or illusory. Wakeman v. Grover, 4 Paige, 23 ; Lucas v. 
 Bank of Darien, 2 Stew. Alab. 280 ; N. E. Bank v. Lewis, 8 Pick. 113; 
 Phillips v. Richardson, 4 J. J. Marsh. 213 ; Cocke v. Trotter, 10 Yerg. 
 213 ; O'Brien v. Elliott, 15 Maine, 125 ; Buck v. Swazey, 35 Maine, 
 42 ; Smith v. Kincaid, 10 Humph. 73 ; Jacks v. Nichols, 1 Seld. N. 
 Y. 178 ; see ante, 356, note. So the defendant cannot rely upon his 
 statements of matters of defence, though in form responsive, but must 
 prove them in the ordinary way. Hagthorp v. Hook, 1 Gill & John. 
 272 ; Paynes v. Coles, 1 Munf 373 ; Walton v. Walton, 2 Benn. Mo. 
 376 ; ante, 356, note. A further qualification is, that where the facts 
 stated or denied in the answer could not be by possibility within the 
 personal knowledge of the defendant, as in the case of an executor or 
 heir, or where stated or denied only upon information and belief, or by 
 way of inference from facts not particularly stated, the same amount of 
 countervailing proof is not required. Combs v. Boswell, 1 Dana, 474 ; 
 Lawrence v. Lawrence, 4 Bibb, 358 ; Harlan v. Wingate's Adm. 2 J. 
 J. Marsh. 138 ; Carneal's Heirs v. Day, Litt. Sel. Cas. 492 ; Knicker- 
 backer v. Harris, 1 Paige, 209 ; Drury v. Conner, 6 Harris & John. 
 288 ; Pennington v. Gittings, 2 Gill & John. 208 ; Clark's Adm. v. 
 Van Reimsdyk, 9 Cranch, 153 ; Paulding v. Watson, 21 Alab. 279 ; 
 Copeland v. Crane, 9 Pick. 73. So upon the principle that the answer 
 of an infant by his guardian is not binding on him, e converso, it can- 
 not be used as evidence in his favor. Bulkley v. Van Wyck, 5 Paige, 
 536. And it may be further stated here, that the general rule in some 
 of the States is subjected to certain modifications by statutory provisions. 
 See 3 Greenl. Ev. § 289, note. 
 
 Most of these exceptions, it is to be remembered, are only applicable 
 where the complainant has put in a replication, and taken issue upon 
 the allegations of the answer. Where he does not do so, however, or 
 where, after putting in a replication, he sets the case down for hearing 
 on bill and answer, he so far waives his rights, and the answer is to be 
 taken as true whether responsive or not. Cherry v. Belcher, 5 Stew. 
 & Port. 134 ; Peirce v. West's Bx'rs, 1 Pet. C. C. 351 ; Dale v. McEvers, 
 2 Cow. 118 ; Jones v. Mason, 5 Band. 577 ; Scott v. Clarkson, 1 Bibb, 
 277 ; Moore v. Hylton, 1 Dev. Eq. 429 ; Carman v. Watson, 1 How. 
 Miss. 333; 3 Greenl. § 288; Lanning v. Smith, 1 Pars. Eq. 17; 
 Ware v. Richardson, 3 Maryl. R. 505 ; Mason v. Martin, 4 Id. 124. 
 
 The answer of one defendant, on the other hand, is not, in general, 
 
748 ADAMS'S DOCTRINE OF EQUITY, 
 
 reading extracted passages, make other passages evi- 
 dence, except so far as they are explanatory of the 
 passages read. 
 
 evidence in behalf of another defendant. Morris v. Nixon, 1 How. U. 
 S. 119 ; 3 Greenl. § 283 : see Farley v. Bryant, 32 Maine, 474; Gil- 
 more V. Patterson, 86 Maine, 544. Though where it is directly respon- 
 sive and furnishes a disclosure of the facts required unfavorable to the 
 complainant, and especially where the title of such other defendant is 
 merely derivative, it has been held otherwise. Greenl. ut sup. ; Mills 
 V. Gore, 20 Pick. 28. 
 
 In equity, a complainant is entitled to read so much of the answer 
 only in evidence, as contains the admissions on which he desires to rely, 
 subject, however, to this exception, that he must also read all the ex- 
 planations and qualifications, by which the admissions may be accompa- 
 nied, though contained in a distinct part of the answer, but incorpo- 
 rated by reference in the admissions. Parrish v. Koons, 1 Pars. Eq. 
 97; Glenn v. Randall, 2 Maryl. Oh. 220; ante, 21; 3 Greenl. § 281. 
 This, however, does not apply to what is really matter of discharge or 
 defence, relied upon by the defendant in connection with an admission 
 of the liability charged in the bill, which, as has been stated above, 
 must be proved by him at the hearing, if the answer has been replied 
 to ; and if the matter in avoidance has been so skilfully interwoven into 
 the grammatical construction of the passages containing the admissions, 
 that both must be read together, the complainant will be entitled to have 
 the matter of avoidance considered as struck out. 3 Greenl. § 281 ; 
 McCoy v. Ehodes, 11 How. U. S. 131 ; Whiting v. Beebe, 7 Eng. Ark. 
 421 ; Baker v. Williamson, 4 Penn. St. 467. 
 
 Where, nevertheless, a decree is sought upon grounds disclosed in 
 the answer variant from those assumed in the bill, the whole answer 
 must be taken together, the matter of charge as well as discharge, and 
 must, when so taken, make out a proper case for relief. Mulloy v. 
 Young, 10 Humph. 298. 
 
 It is equally settled, however, that at law, a party relying on an an- 
 swer, to a bill of discovery, must read the whole or none : ante, 21 ; 
 and this rule has been also held to apply in cases where the Court, 
 having obtained jurisdiction for discovery, goes on to give the necessary 
 relief, to avoid a multiplicity of suits, though there be a full and ade- 
 quate remedy at law, which is generally done in the United States. 
 Lyons v. Miller, 6 Gratt. 439.] 
 
OF EVIDENCE. 749 
 
 III. The proof must be by legitimate evidence. 
 
 The only doctrine under this head which can be con- 
 sidered peculiar to Courts of equity regards the admissi- 
 bility as witnesses of parties to the suit.(c?) 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 imme- 
 diate 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 record is expressly ex- *- -I 
 cepted 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 compe- 
 tent 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 
 
 (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. Haw- 
 kins V. Hawkins, 2 Car. Law Kep. 627. 
 
 [In equity, a mere trustee may in general be a witness. Neville v. 
 Demeritt, 1 Green. Ch. 321; Harvey v. Alexander, 1 Eand. 219; 
 Taylor v. Moore, 2 Id. 563 ; Trustees of Watertown v. Cowen, 4 Paige, 
 510 ; Hodges v. Mullikin, 1 Bland, 503 ; Hardwick v. Hook, 8 Geo. 
 354. See Southard v. Gushing, 11 B. Monr. 344. This rule has been 
 adopted at law in Pennsylvania. Drum v. Simpson, 6 Binn. 481; King 
 V. Cloud, 7 Penn. St. 467 ; Keim v. Taylor, 11 Penn. St. 163. But 
 it is to be remembered that where, as is the case now in most of the 
 United States, a trustee is entitled to commissions, he is so far inte- 
 
750 ADAMS'S DOCTRINE OF EQUITY. 
 
 claiming a beneficial interest, or that, even if they have a 
 beneficial interest, it extends only to some of the points 
 at issue. The principle, therefore, which before the 
 alteration of the law established the admissibility of such 
 persons as witnesses was one of frequent operation, and 
 seems to be correctly embodied in the following rule : 
 that where any person was made a defendant for form's 
 sake, and no decree could be had which he had any 
 beneficial 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 in- 
 
 rested in the trust estate ; and must release that interest, before he can 
 be permitted to testify in a cause in which it maybe in any way affected. 
 See Anderson v. Neff, 11 Serg. & K. 208 ; Patton v. Ash, 7 Serg. & 
 K. 116 ; King v. Cloud, 7 Penn. St. 467.] 
 
 ^ A defendant made a Tpartj 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. R. 550; Eagan v. 
 Echols, 5 Geo. 71 ; Sharp v. Morrow, 6 Monr. 305 ; Warren v. Sproule, 
 2 A. K. Marsh. 539; Wright v. Wright, 2 McCord, C. E.185; Butler 
 V. Elliott, 15 Conn. 187; see also, Caphart v. Huey, 1 Hill C. E.405; 
 Jones V. Bullock, 2 Dev. C. E. 368 ; Bell v. Jasper, 2 Ired. Eq. 597 ; 
 [Wilson V. Allen, 1 Jones, Eq. 24.] 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-defendant, and does not swear in favor of 
 his own interest. Williams v. Beard, 3 Dana, 158 ; Miller v. McCan, 
 7 Paige, 457. A party charged as combining with others in a fraud 
 against which relief is sought, and therefore made a defendant, no par- 
 ticular relief being prayed against him, may be a witness for his co- 
 defendant, though liable for costs. Neilson v. McDonald, 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. R. 612 ; [Farley v. Bryant, 32 Maine, 
 474.] 
 
 ^ A defendant who suffers the bill to be taken as confessed, and thereby 
 enables the complainant to obtain a decree against him individually, is 
 
OF EVIDENCE. 751 
 
 terest, he had it in respect of a part only of the matters 
 in issue, he might be examined as a witness either gene- 
 rally, or in respect to those matters in which he had no 
 interest.^ And liberty so to examine him might be ob- 
 tained as of course by either the plaintiff or a co-defen- 
 dant, saving just exceptions. The application to examine 
 him was accompanied by a suggestion that he had no 
 interest, (f?) If that suggestion were untrue, the deposi- 
 tion was disallowed at the hearing; and if the examina- 
 tion had been by the plaintiff, he could not pray an ad- 
 verse decree against the defendant examined, nor against 
 
 (g) Murray v. Shad well, 2 Ves. & B. 401. 
 
 a competent witness for his co-defendant. Holgate v. Palmer, 8 Paige, 
 461 ; Post V. Dart, Ibid. 639 ; Lupton v. Lupton, 2 Johns. C. R. 625. 
 
 1 [Lingan v. Henderson, 1 Bland, 268.] The mere fact that a person 
 is made a defendant to a bill in Chancery does not render him an in- 
 competent witness in the suit as to matters in which he has no interest. 
 Before a decree, one defendant may have an order for the examination 
 of his co-defendant as to matters in which the latter is not interested, 
 saving to the plaintiff all just exceptions. And it is not a good excep- 
 tion 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 ; Armsby v. Wood, 
 Hopk. 229 ; [Second Cong. Soc. &c. v. First Cong. Soc. &c. 14 N. H. 
 315; Tolson v. Tolson, 4 Maryl. Ch. 119. But an order must be first 
 obtained. Hewitt v. Crane, 2 Halst. Ch. 159 ; Second Cong. Soc. v. 
 First Cong. Soc. ut sup. ; Hoyt v. Hammekin, 14 How. U. S. 350. 
 
 But it has been held, that the omission to procure the previous order 
 of the Court for the examination of a defendant as a witness, is a mere 
 irregularity, and when it is apparent that no substantial injustice has 
 been inflicted upon the opposite party by denying him the benefit of a 
 cross-examination, and that delay and injury will be visited upon the 
 party relying upon the proof, an objection thereto on this ground ought 
 not to prevail. Tolson v. Tolson, 4 Maryl. Ch. 119. See, on this sub- 
 ject, 8 Greenl. Ev. § 314, &c.J 
 
752 ADAMS'S DOCTRINE OF EQUITY. 
 
 others who might be secondarily liable. (7i)' 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 witness, 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, (i) 
 
 The plaintiff is in all cases incompetent as a witness. 
 If a co-plaintiff be desirous of his evidence, and the de- 
 fendant will not consent to the examination, he must 
 move for leave to strike out his name as plaintiff on 
 payment of the costs already incurred and to make him 
 a defendant by amendment.^ If the examination is re- 
 
 (K) Massy v. Massy, 1 Beatty, 353; Champion v. Champion, 15 Sim. 
 101. 
 
 (i) 6 & 7 Vict. c. 85, s. 1. 
 
 ' [Where a defendant has been used by the complainant as a witness, 
 no decree can in general be made against him or against others who may 
 be secondarily liable with him as to the matters upon which he has been 
 examined; and if he has been examined upon the whole case made by 
 the bill, it must be dismissed as to him and them. Lingan v. Henderson, 
 
 1 Bland, 268 ; Bradley y. Boot, 5 Paige, 633 ; Palmer v. Van Doren, 
 
 2 Edw. Ch. 192. But this rule does not apply to the case of a mere 
 formal defendant, as an executor or trustee, against whom no personal 
 decree is sought, and who has no personal interest in the question as to 
 which he is examined as a witness against his co-defendants; nor to the 
 case of a defendant who, by his answer, admits his own liability, or who 
 suffers the bill to be taken as confessed against him. Bradley v. Boot, 
 5 Paige, 633.] 
 
 ' Leavitt v. Steenbergen, 3 Barb. S. C. K. 155; [Helms v. Pranciscus, 
 2 Bland. 544; Eekford v. De Kay, 6 Paige, 565; 3 Greenl. Ev. § 314.] 
 So, an application 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. Eekford 
 
OF EVIDENCE. 763 
 
 quired on behalf of a defendant, it can only be had by 
 the plaintiff's consent, (/i) 
 
 The manner of taking evidence is different at equity 
 and at law. It is taken at law vivd voce, and publicly ; 
 in equity it is written and secret. The origin of this 
 distinction is the difference of the objects 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 gene- 
 rally, 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 
 
 (Z;) Fisher v. Fisher, 2 Ph. 236. 
 
 V. De Kay, 6 Paige, 565 ; see, also, Eoss v. Carter, 4 Hen. & Munf. 
 488. 
 
 ' [Very considerable changes have been introduced in many of the 
 United States, in the manner of the trial of disputed issues in Chancery, 
 in the method of examination of witnesses, and the like. Mr. Greenleaf 
 (3 Evidence, § 267) thus sums up the diversities existent among the 
 different States in these respects : " In some, the parties may examine 
 each other as witnesses ; in others, this is not permitted. In some, the 
 witnesses may be examined" in Court viva voce, as at law ; in others, the 
 testimony is always taken in writing, either in open Court, by the clerk, 
 the judge, or in depositions, after the former method. In the latter case, 
 however, there is this further diversity of practice, that, in some States, 
 the parties may examine and cross-examine the witness, ore fenus, before 
 the magistrate or commissioner; in others, they may only propound 
 questions in writing, through the commissioner ; in others, they may 
 only be present during the examination, and take notes of the testimony, 
 but without speaking ; while in others, the parties are still excluded 
 from the examination. In some of the States, also, it is required that 
 all matters of fact, in all cases, shall be tried by the jury; in others, it 
 is at the option of the parties ; in others, it is apparently left in the 
 direction of the Court ; but with plain intimations that it ought not to 
 be refused, unless for good cause." In the previous sections, these dis- 
 tinctions are more elaborately dwelt upon.J 
 
 48 
 
754 ADAMS'S DOCTRINE OP EQUITY. 
 
 to them on the issues joined. In order, therefore, that 
 this object may be best attained, it is necessary, not that 
 the evidence should be correctly recorded, but that at 
 the time of its being given it should be thoroughly com- 
 pared 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 explained, 
 and the entire mass of evidence commented on by coun- 
 sel, 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 trial, and in a still greater 
 ■- -■ degree by the searching ordeal of cross-examina- 
 tion. 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 coun- 
 sel, 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 evi- 
 dence laid before themselves. If the verdict is undis- 
 turbed, 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 vivd voce examination 
 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. 
 
OF EVIDENCE. 755 
 
 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 re- 
 ferred to the verdict of a jury. (1) The power, therefore, 
 of sifting and comparing testimony, which is the primary 
 requisite at law, becomes comparatively unimportant in 
 equity; and the principal objects there contemplated 
 are first, to elicit a sworn detail of facts, on which the 
 Court may adjudge the equities ; and secondly, to pre- 
 serve it in an accurate record, for the use, if needed, of 
 the Appellate Court. 
 
 For this reason it is required in equity that all wit- 
 nesses 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 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 warrant ; 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 ne- 
 cessarily involves the risk that defects of evidence might 
 be discovered in the course of taking it, and false testi- 
 mony procured to remedy them. In order to avoid this 
 risk, the witnesses are examined privately by an officer 
 of the Court ; and it is an imperative rule, that until 
 the examination has been completed and the entire de- 
 positions given out, which is technically termed passing 
 
 (T) Infra, Issue. 
 
756 ADAMS S DOCTRINE OF EQUITY. 
 
 publication, neither party shall be made acquainted 
 with his adversary's interrogatories, nor with any part 
 of the answers on either side ; and that after publica- 
 tion, no further witnesses can be examined without spe- 
 cial leave, (m) 
 
 The secrecy thus observed must to some extent in- 
 volve 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 respect- 
 ing 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 evi- 
 dence, the facts which it is intended to support, must 
 have been previously detailed in the pleadings. Should 
 this security prove insufiicient, so that a doubt exists at 
 the hearing whether all material facts are before the 
 Court, further inquiries may be directed, and the deci- 
 sion in the meantime delayed. 
 
 The mode of examination is by written interrogatories, 
 which, in the case of witnesses resident within twenty 
 *miles of London, are administered by an officer 
 ■- -■ called the examiner ; or if they are resident be- 
 yond that distance, and the parties are unwilling to 
 incur the expense of bringing them to town, by com- 
 missioners specially appointed for the purpose. («.)' 
 
 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. 
 
 (m) 1 Dan. C. P. 948. 
 
 (») Mostyn v. Spencer, 6 Bea. 135 ; Orders of 1845, xciv-cx ; 1 Dan. 
 C. P. 860. 
 
 ' [See, on this subject, 3 Green. Evid. § 319, et seq.] 
 
OF EVIDENCE. 757 
 
 They are framed as a series of questions, directed suc- 
 cessively to the several facts in issue, and numbered, 
 First Interrogatory, Second Interrogatory, and so forth ; 
 and a marginal note is usually aflSxed to each, pointing 
 out the witness for whom it is intended. 
 
 In framing interrogatories the same rules must be ob- 
 served as in putting questions to a witness at law ; viz., 
 they must not be leading or suggestive on material 
 points ; and they must not be so framed as to embody 
 material facts admitting of an answer by a simple nega- 
 tive or affirmative, and thus presenting to the Court the 
 evidence, not as it would be stated by the witness him- 
 self, but with the coloring prompted by professional skill 
 and a previous knowledge 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 misap- 
 prehension, 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 oppor- 
 tunity 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 interrogatories, 
 that the witness's mind may be led into the right chan- 
 nel of thought ; and the difficulty of effecting this is ma- 
 terially diminished, *if, before the interrogatories [-^q(.q-] 
 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 necessarily vary in every instance, accord- 
 ing to the circumstances of the individual case. 
 
 At the conclusion of each interrogatory the following 
 words, denoted in the draft by the words " Declare," &c. 
 
758 Adams's doctrine of equity. 
 
 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 called 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 has been taken in preparing the evi- 
 dence, 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 interrogatories 
 applying to each witness. During the actual examina- 
 tion, the examining officer 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 interroga- 
 tory, until that in hand be fully answered. 
 
 *When all the interrogatories have been gone 
 *- -^ through, the deposition is read over to the wit- 
 ness, who, after correcting any error or omission, signs 
 it. The affixing of his signature completes his exami- 
 
 (o) 1 Dan. C. P. 858. 
 
OF EYIDENOE. 759 
 
 nation, and he cannot be again examined on behalf of 
 the same party. (^) 
 
 If any of the interrogatories are such as the witness 
 is not bound to answer, e. g., if they tend to expose him 
 to a penalty or forfeiture, or involve a breach of profes- 
 sional confidence, he may decline to answer them,' stating 
 at the same time on oath his reasons for so doing ; a 
 proceeding which is somewhat inaccurately called a De- 
 murrer to Interrogatories. The examiner or commis- 
 sioner takes down the statement in writing, and the ob- 
 jection is heard and decided by the Court, [q) 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 interro- 
 gatories 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 interroga- 
 tories filed for this purpose, which are termed Cross 
 Interrogatories, are in all respects similar to the interro- 
 gatories in chief, except that they are not subject to ob- 
 jection on the ground of leading the witness. It is, 
 however, very seldom that any good result is effected by 
 
 (p) Cockerell v. Cholmeley, 3 Sim. 313; Whitaker v. Wright, 3 H. 
 412. 
 
 (2) Parkhurst v. Lowten, 2 Swanst. 206 ; Langlcy v. Fisher, 5 Bea. 
 448 ; Carpmael v. Powis, 1 Ph. 687. 
 
 (r) Shaw T. Lindsey, 15 Ves. 381 ; Healey v. Jagger, 3 Sim. 494 ; 
 Moyston V. Spencer, 6 Bea. 135. 
 
 ' [The witness cannot refuse to be sworn, however. Ex parte Bunn, 
 26 L. J. ch. 614.] 
 
760 Adams's doctrine of equity. 
 
 a cross-examination in equity ; for it is conducted in 
 ignorance of the questions in chief, and therefore, as 
 applied to the adversary's case, is uncertain and often 
 dangerous ; and it cannot be applied, as at nisi jprius, to 
 the proof of an independent *case. If the evi- 
 l- -I dence 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. (<) If either party 
 wishes to delay this step, in order to complete the exa- 
 mination of his witnesses, he must apply to the Master 
 to whom the cause stands referred, to enlarge the publi- 
 cation for a further time. And, even after publication 
 has nominally passed, yet if the depositions have con- 
 tinued secret, and through surprise or accident, without 
 blamable negligence, either party has failed to examine 
 his witnesses, a similar indulgence may be obtained. 
 An order, however, for this latter purpose, although in 
 form for enlarging publication, is in reality for leave to 
 examine, notwithstanding publication passed, and must 
 be obtained by application to the Conrt.{u) 
 
 After the depositions have been published and read, 
 no further evidence is admissible without special leave, 
 except evidence to discredit a witness, either by impeach- 
 ing 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 
 
 (s) 1 Dan. C. P. 856. 
 
 (f) Orders of 1845, cxi, cxiii. 
 
 (u) Carr v. Appleyard, 2 M. & C. 476. 
 
OF EVIDEKCE. 761 
 
 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 in- 
 firmity of written testimony taken in the absence of both 
 Judge and counsel, and without any means of rectifying 
 slips while the examination proceeds, renders it some- 
 times necessary to apply for a relaxation. Permission 
 has accordingly been granted to examine witnesses after 
 publication, *where the interrogatories originally 
 exhibited have failed of effect, either by a sup- L ^ ^ 
 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 indulgence has been given where 
 the plaintiff had relied on admissions in the answer, 
 which were held insuflScient or ineffectual at the hear- 
 ing; and where, through the inadvertence of counsel, 
 the plaintiff had omitted to give evidence on a point 
 which, though material to the relief sought, was not 
 really contested in the cause. But the Court must be 
 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 actual question 
 
 (v) 1 Dan. C. P. 948. (w) 1 Dan. C. P. 942. 
 
 ' ' See, on this point, Gass v. Stinson, 2 Sumner, 605 ; Troup v. Sher- 
 wood, 3 John. C. E. 558 ; Evans v. Boiling, 5 Ala. 550. 
 
 ' [See 3 Greenl. Ev. § 340, et seq.; Kidgeway v. Toram, 2 Maryl. 
 Ch. 303, as to where evidence will be allowed to be taken after publica- 
 tion.] 
 
762 ADAMS'S DOCTRINE OF EQUITT. 
 
 in dispute, (a;) The regular mode of obtaining permis- 
 sion to examine witnesses after publication is by a dis- 
 tinct motion before the hearing ; but if the necessity is 
 not sooner discovered, the cause may be directed at the 
 hearing to stand over, with liberty to exhibit interroga- 
 tories 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 substitution of the Master for the Court to de- 
 cide on the evidence in the cause, and the more regular 
 course is by leave to exhibit interrogatories. (2/) 
 
 The only exceptions to the system of taking evidence 
 on written interrogatories and before publication, 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, 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 evidence given by affidavit at the hearing, a 
 method recently substituted for the former one, of a viva 
 voce examination of the witness. This exception does 
 not apply where the authenticity of the document 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 execution but the sanity 
 of the testator must necessarily be shown, or in proving 
 the execution of a deed where a particular form of exe- 
 
 (x) Cox V. Allingbam, Jao. 337 ; Hood v. Pimm, 4 Sim. 101 ; Stan- 
 ney v. "Walmsley, 1 M. & 0. 361; Hughes v. Eades, 1 Hare, 486; 
 Woodgate v. Field, 2 Hare, 211; Attorney-General v. Severne, 1 Coll. 
 313; Cass v. Cass, 4 Hare, 278. 
 
 (y) Hughes V. Eades, 1 Hare, 486 ; Lechmere v. Brasier, 2 Jac. & 
 W. 288. 
 
OF EVIDENCE. 763 
 
 cution is requisite. In such cases proof by affidavit is 
 not available, but the evidence must be taken on inter- 
 rogatories with the regular opportunity to cross-exa- 
 mine, (z)^ 
 
 After publication has passed, it is the plaintiff's duty 
 to set down the cause for hearing, and to serve a sub- 
 poena 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, dismiss the bill upon payment of 
 costs, as a matter of course, without 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 
 
 («) 43d Order of August, 1841 ; Maber v. Hobbs, 1 Y. & C. 585 ; 
 Attorney-General v. Pearson, 7 Sim. 309; Brace v. Blick, 7 Sim. 619; 
 Lake t. Skinner, 1 Jac. & W. 9. 
 
 (a) 2 Dan. C. P. 955, 960. 
 
 ' [See on this subject, 3 Greenl. Ev. § 340 ; Gafney v. Reeves, 6 
 Indiana, 71. J 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. 
 
 [Where an exhibit in a bill was alleged to be well known to the de- 
 fendant, and to be genuine, and this allegation was not denied, the ex- 
 hibit was taken at the hearing to be genuine. Armitage v. Wickliffe, 
 12 B. Monr. 488.] 
 
 ^ [The propriety of permitting a complainant to dismiss his bill with- 
 out prejudice, rests in the sound discretion of the Court ; and is to be 
 exercised with reference to the rights of both parties. Conner v. Drake, 
 1 Ohio St. N. S. 166. See also, ante, 347, and notes.] 
 
764 Adams's doctrine of equity. 
 
 on the plaintiff'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, [b] 
 
 (b) Ord. May, 1845, cxvii. • 
 
OF THE HEARING AND DECREE. 765 
 
 *CHAPTER VII. [*374] 
 
 OP THE HEARING AND DECREE. 
 
 At the hearing of the cause the pleadings and evidence 
 are stated, and the Court makes its decree. If the de- 
 fendant 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 appear- 
 ance, he has neglected to answer, it is a decree pro con- 
 fesso.{b) The minutes of the decree are then prepared 
 by the registrar, and delivered 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 variation in 
 its terms except by an appeal to the House of Lords, (c) 
 
 The practical details of procedure in preparing a 
 
 (a) With respect to decrees by default, see 44tli Order of August, 
 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 Vict. c. 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. 
 
 (c) 2 Dan. C. P. ch. xxiv. 
 
766 Adams's doctrine of equity. 
 
 decree are not the subjects of our present consideration, 
 which will be devoted rather to the nature of decrees 
 themselves. 
 
 rA0 7cT ^Decrees, considered in this light, will be 
 I- "^ ' -i divided into Preliminary and Final. The pre- 
 liminary decree provides for the investigation of ques- 
 tions which are material either in determining on sub- 
 sequent 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 ulti- 
 mately of the suit. 
 
 The causes which create a necessity for a preliminary 
 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 dis- 
 pute 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 Chancery 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 prelimi- 
 nary decree directs, 1. A case for a Court of law; 2. 
 An issue for a jury; 3. An action at law, to be deter- 
 mined in the ordinary course ; or 4. A reference to one 
 
 (ci) Bruin v. Knott, 12 Sim. 453. 
 
 ' [A decree in Chancery which leaves the equity of the ease, or some 
 material question connected with the merits, for future determination, 
 is an interlocutory, and not a final decree. Teaff y. Hewitt, 1 Ohio St. 
 N. S. 511. See also Dabbs v. Dabbs, 27 Alab. 646; Humphrey v. 
 Foster, 13 Gratt. 653 ; Re Colom, 3 Maryl. Ch. 278 ; Hudson v. Kline, 
 9 Gratt. 379 ; Harrison v. Eush, 15 Missouri, 175 ; Verden v. Cole- 
 man, 18 How. U. S. 86 ; Ayres v. Carver, 17 Id. 391 ; Craighead v. 
 Wilson, 18 Id. 199.] 
 
OP THE HEARING AND DECREE. 767 
 
 of the Masters of the Court, to acquire and impart to it 
 the necessary information. Each of these methods of 
 inquiry may be also adopted on interlocutory applica- 
 tions 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 directed, 
 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, inciden- 
 tally brought before it. If, however, a doubtful question 
 of law arises, which can be*eflfectually separated rH;q7c-i 
 from the equitable matter, its ordinary practice 
 
 is to direct, on the application of either party, (/) that 
 a case may be made for the opinion of the common law 
 Court, reserving 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 reconsidera- 
 tion to the same, or to another Court of law ; or may, 
 if he think fit, decide in opposition to the certificate, (g^) 
 
 2. An issue is directed where an incidental question 
 of fact is so involved in doubt by conflicting or insuffi- 
 
 (c) Ansdell v. Ansdell, 4 M. & C. 449 ; Lancashire v. Lancashire, 9 
 Bea. 259. 
 
 (/) Morrice v. Langham, 11 Sim. 280. 
 
 ig) Lansdowne v. Lansdowne, 2 Bligh. 0. S. 86 ; Spry v. Bromfield, 
 12 Sim. 75 ; Muddle v. Fry, Mad. k G. 270 ; Northam Bridge Com- 
 pany V. Southampton Kailway Company, 11 Sim. 42. 
 
768 ADAMS'S DOCTRINE OF EQUITY. 
 
 cient evidence, that the Court, considering the ineffi- 
 cacy of written testimony, is desirous of referring 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, (i)' The form of an issue was for- 
 
 (K) Moons V. De Bernales, 1 Russ. 301 ; Lloyd v. Wait, 1 Ph. 61. 
 (i) Clayton v. Meadows, 2 H. 29 ; Whitaker v. Newman, 2 H. 302. 
 
 1 [Where in a suit in equity there is no conflict of testimony, but a 
 simple failure to prove material facts, it is improper to direct an issue ; 
 and if in such case there is a verdict on the issue in favor of the com- 
 plainant, the decree should nevertheless be for the dismissal of the bill. 
 Reed v. Cline, 9 Gratt. 136; Wise v. Lamb, Id. 294. An issue 
 should not, moreover, be directed where the truth of the facts can be 
 sufficiently and satisfactorily ascertained by the Court itself. Baker v. 
 Williamson, 2 Penn. St. 116 ; Johns v. Erb, 5 Id. 237.] A Chancel- 
 lor may decide every question of fact himself ; but any question he con- 
 siders 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 con- 
 curs 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 per- 
 plexed 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. Id. 212. 
 
 [In many of the United States, and in the Federal judicature, how- 
 ever, the trial by jury is secured to suitors, by constitutional or statutory 
 provisions, in such a manner that even where it is not an express right, 
 the discretion of a Court of equity in granting an issue in a case proper 
 for a jury, has become merely nominal. And in nearly all the States, 
 it is at least very doubtful whether a verdict on an issue is not equally 
 binding with that in a suit at law, and subject only to the same revisory 
 power which is exercised in granting new trials in other cases. See, 
 on this subject, 3 Greenl. Ev. part vi, ch. i, § 261, et seq. § 339; Hoff- 
 
OF THE HEARING AND DECREE. 769 
 
 merly 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.(^) 
 
 The result of an issue is not necessarily a mere general 
 verdict, but liberty may be given to take a special ver- 
 dict, or a special ■case.(Z) And a direction is frequently 
 given, that if the substance of the issue is found, but 
 with special circumstances, which may be material in 
 measuring the relief, the special matter shall be in- 
 dorsed on the postea.{'m) 
 
 *The Court will also provide that the issue 
 shall effectually raise the real question, cleared L ^ ' J 
 of all extrinsic matter, by directing all requisite ad- 
 missions 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 de- 
 mand an issue as a matter of right, have already been 
 
 (^) 8 & 9 Viet. c. 109, s. 19. 
 
 (0 Clayton v. Nugent, 1 Coll. 362. 
 
 (m) White v. Lisle, 3 Sw. 345. 
 
 man v. Smith, 1 Maryl. R. 475 ; Thomasson v. Kennedy, 3 Rich. Eq. 
 440 ; Harrison v. Rowan, 4 Wash. C. C. R. 32 ; Pleasants v. Ross, 1 
 Wash. Va. 156; Marston v. Brackett, 9 N. H. 336 ; Charles R. Bridge 
 V. Warren Bridge, 7 Pick. 344 ; Parsons v. Bedford, 3 Peters, 433 ; 
 Ward V. Hill, 4 Gray, 593 ; Drope v. Miller, 1 Hempst. 49 ; Lapreese 
 V. Falls, 7 Ind. 692 ; see, however. Baker v. Williamson, 2 Penn. St. 
 116; Johns V. Erb, 5 Penn. St. 237; and in New York, before the 
 Rev. Code, Patterson v. Acketson, 1 Edw. Ch. 96.] 
 
 ' [See, on this subject, 8 Greenl. Ev. § 377, &c. ; Apthorp v. Corn- 
 stock, 2 Paige, 482 ; Baker t. Williamson, 2 Penn. St. 116 ; Johns v.- 
 Erb, 5 Id. 237.] 
 
 49 
 
770 Adams's doctrine of equity. 
 
 considered in treating of the jurisdiction for such esta- 
 blishment, (n) With these exceptions, the granting of 
 an issue is discretionary with the Court, and the atten- 
 dant expense and delay will only be incurred when, in 
 the exercise of a sound discretion, it is deemed neces- 
 sary, (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 %ith 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 miscarriage, and the verdict be one 
 which at common law would be undisturbed. (^) And 
 even though no 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 in- 
 tended, may direct a new one to be framed ; or may, on 
 reconsideration of the evidence, decide at once against 
 the verdict. (5')' 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) 
 
 (n) Supra, Tithes ; Testamentary Assets. 
 
 (0) 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 Kailway Company, 11 Sim. 42 ; East India Company v. 
 Bazett, Jao. 81. 
 
 (g) 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. 
 
 ' [But see ante, note to p. 376.] 
 
or THE HEARING AND DECREE. 771 
 
 *.3. An action at law is directed where the . 
 equity is based on a disputed legal right, but the L ^ -I 
 trial of such right at law is prevented either by equi- 
 table 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 dis- 
 puted 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 tri- 
 bunal ; but there is a general question of right, deter- 
 minable 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 founda- 
 tion of a suit is a legal demand, on which the judgment of 
 a Court of law, whether obtained on a verdict or in any 
 other shape, ought to be conclusive, the Court of Chan- 
 cery 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 re- 
 tainer is not conclusive on the point, and the decree, on 
 further directions, may be against the plaintiff. (<)' If 
 
 (s) Pemberton v. Pemberton, 13 Ves. 298 ; Bootle v. Blundell, 19 
 Ves. 500; Waterford v. Knight, 11 Clarke & F. 662; Butlin v. Mas- 
 ters, 2 Ph. 290. (0 Harmood v. Oglander, 6 Vea. 225. 
 
 ' [See on this point, Ches. & Ohio Canal v. Young, 3 Maryl. R. 480. 
 
772 ADAMS'S DOCTRINE OP EQUITY. 
 
 there are any persons equitably interested, and who can- 
 not therefore be parties at law, they will have liberty 
 given them to attend the trial, and to make such de- 
 fence 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 
 jurisdiction over the action ; and if *either party 
 L J 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 protection 
 of absent parties against the possible neglect or malfea- 
 sance of the litigants ; the more effectual working out 
 of details, which the Judge sitting in Court is unable 
 to investigate ; and the supplying defects or failures in 
 evidence.^ And it differs materially from a case, an 
 
 Where a bill has been ordered to be retained for a twelvemonth, with 
 liberty for the plaintiff to bring an action, the Court will extend the time, 
 if satisfied that there is a hona fide intention to proceed with the action, 
 and there has been promptness in bringing the matter to an adjudication. 
 Farina v. Silverlock, 26 L. J. Ch. 790.] 
 
 1 The Master's office is a branch of the Court. Stewart v. Turner, 
 3 Edw. C. E. 458. The Master, in his ministerial character, is bound 
 strictly to follow the instructions of the Court. Fenwicke v. Gibbes, 2 
 Desau. 629. A reference will not be ordered to inquire relative to a 
 fact, constituting the gist of the controversy, and put in issue by the 
 pleadings. Lunsford v. Bostion, 1 Dev. Eq. 483 ; [see Grilraore v. Gil- 
 more, 40 Maine, 50.] 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. Remsen, 2 Johns. C. R. 496 ; [Gass v. Stinson, 2 Sumn. 
 605 ; Jenkins v. Eldredge, 8 Story, 299 ; Hollister v. Barkley, 11 N. 
 H. 501 ; Benson v. Le Roy, 1 Paige, 122 ; McDougald v. Dougherty, 
 
OF THE HEARING AND DECREE. 773 
 
 issue, or an action, because these steps, when directed, 
 afe 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 compara- 
 tively 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 uncer- 
 tain 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 ascertaining or distributing the fund, (it) And, 
 on the same principle, if a proposal of compromise or of 
 arrangement by consent is made where any of the par- 
 ties are infants or femes covert, and therefore unable to 
 exercise a discretion, the Court, before sanctioning the 
 proposal, will ascertain by a reference, whether it is for 
 their benefit.^ 
 
 2. A reference for the working out of details is prin- 
 cipally made in matters of account, when the Court de- 
 clares that the account must be taken, and refers it to 
 
 (u) 2 Dan. C. P. 683; Fisk v. Norton, 2 Hare, SSl. 
 
 11 Geo. 570 ; Dougherty v. Jones, Id. 432 ; Gilmore v. Gilmore, 40 
 Maine, 50. 
 
 See on the subject of references to and proceedings before Master, 
 Eules, U. S. Courts in equity, No. Ixxiii, at seq. ; Penna. No. Ixix. et 
 seq.; 3 Greenl. Evid. § 332, et seq. J 
 
 ' Where a suit is instituted on behalf of an infant, hj 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. 
 
774 ADAMS'S DOCTRINE OF EQUITY. 
 
 the Master to investigate the items.* The same prin- 
 ciple 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 superintend *sales, to appoint 
 L -I trustees, receivers, and guardians, and so forth. 
 
 For the same reason, the Masters are deputed to judge 
 of impertinence or insufficiency in pleadings, the deci- 
 sion of which must depend on a minute examination of 
 their details. And it is now ordered 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 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 Chancellor, Master of the Rolls, or Vice Chancellor, 
 but without any further appeal, (w) 
 
 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 
 
 (i;) 3 & 4 Wm. 4, c. 94, s. 13. 
 
 * See Hart v. Ten Eyck, 2 Johns. C. K. 513 ; Consequa v. Fanning, 
 3 Johns. C. E. 591 ; Barrow v. Ehinelander, 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, hut 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 ; [Dominick 
 V. Michael, 4 Sand. S. 0. 394 : see ante, 84, notes.] 
 
OF THE HEARING AND DECREE. 775 
 
 at law, to commissioners specially appointed, 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 an- 
 swer, (^c) But in the generality of cases the direction 
 was delayed till the hearing, and the consequent neces- 
 sity 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 certain pre- 
 liminary 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 plaintiff shall be at liberty, at 
 any time, *after the defendants shall have ap- p^„Q,-, 
 peared 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 inquiries, and take such accounts, shall there- 
 upon 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 defen- 
 dants 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 
 
 (w) Balmanno v. Lumley, 1 Ves. & B. 224 ; Matthews v. Dana, 3 
 Mad. 470. 
 
776 ADAMS'S DOCTRINE OF EQUITY. 
 
 the answers of such (if any) of the defendants as have 
 answered the bill."(x) 
 
 The order, however, only applies where it is obvious 
 that the accounts and inquiries must be directed at the 
 hearing, as incidental to the admitted allegations 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 him- 
 self to be next of kin, files his bill against the adminis- 
 trator, who does not admit that he sustains the character. 
 In this case an inquiry 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 
 performance, where the purchaser alleged that the con- 
 tract 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 good 
 title, and when first such title was made, without pre- 
 judice 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 available, and therefore if 
 the purchaser's objeqtion succeeded at the hearing, the 
 inquiry might be useless. The plaintifi" then offered to 
 take an inquiry whether, on the day of the alleged 
 *rescission, or on 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 ob- 
 jection were overruled, a negative one would lead to no 
 result, {y) 
 
 (x) 5th Order of May, 1839. 
 
 (y) Topham v. Lightbody, 1 Hare, 289; Curd v. Curd, 2 Hare, 116; 
 Bre&ze v. English, 2 Hare, 118 ; Clifford v. Turrell, 1 N. C. C. 138. 
 
OF THE HEARING AND DECREE. 777 
 
 In cases not falling 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 occasionally made for 
 ascertaining the truth of an allegation, with respect to 
 which there has been an accidental omission of evidence, 
 but that such course is not strictly regular. The cir- 
 pumstances 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) 
 
 In directing a reference to the Master, the Court pro- 
 vides 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 interroga- 
 tories or viva voce, any creditors or other persons who, 
 by coming in to claim before him, may render them- 
 selves qtiasi parties to the suit. (6) 
 
 The method in which the Master proceeds is by issu- 
 ing warrants from time to time, directing all parties 
 concerned to attend before him at the time and for the 
 
 (z) Broadhurst v. Balguy, 1 N. C. C. 16 ; Connop v. Hayward, 1 N. 
 C. C. 33 ; Miller v. Gow, 1 N. C. C. 56 ; MoMahon v. Burchell, 2 
 PhiU. 127. 
 
 (a) 9th Order of 1828. (}) 72d Order of 1828. 
 
 ' [As to the Master's power of examining a complainant, see McCrac- 
 kan V. Valentine, 5 Seldon (N. Y.) 42.] 
 
778 ADAMS'S DOCTEINE OF EQUITY. 
 
 p^ooo-i 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 qiiasi 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 persons are entitled to take copies of any 
 written proceeding brought into the office, 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 respectively 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 proceed to support them by 
 proof, consisting, first, of the depositions, affidavits, and 
 other evidence already used in the cause ;(c) and, se- 
 condly, of any additional evidence which may be pro- 
 duced 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 Court. (cZ)^ The addi- 
 tional evidence thus brought forward ought in strictness 
 
 (c) 65th Order of 1828. 
 
 (d) Willan v. Willan, 19 Ves. 590 ; Eowley v. Adams, 1 M. & K. 
 545 ; Whitaker v. Wright, 3 Hare, 412 ; England v. Downs, 6 Beav. 
 281. 
 
 ^ See Kemsen v. Kemsen, 2 Johns. C. R. 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 intro- 
 ducing evidence for that purpose before the Master on reference. Ward 
 V. Jewett, Walk. C. R. 45. 
 
OF THE HEARING AND DECREE. 779 
 
 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 evidence has 
 been taken on interrogatories, or the warrant has been 
 issued for preparing the report. (/) 
 
 *After the warrant for preparing the report no 
 further evidence can be received, but the Master [*^^*] 
 will proceed to settle and sign his report on the evidence 
 as it then stands. At this stage of the 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 pre- 
 sently see, are the mode of contesting it before the Court, 
 will not be entertained. The exceptions, when taken, 
 though not necessarily identical in words, must in sub- 
 stance agree with the objections, and the practice gene- 
 rally is to prepare the objections in the form of the in- 
 tended exceptions, and, on their disallowance, to convert 
 them into exceptions. If the objections are allowed by 
 the Master, he will alter his draft accordingly ; 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 
 
 (e) 69th Order of 1828 ; [Dougherty v. Jones, 11 Geo. 432.] 
 (/) Trotter v. Trotter, 5 Sim. 383 ; Nelson v. Bridport, 6 Beav. 
 295 ; 67th Order of 1828. 
 
 ' See Story v. Livingston, 13 Pet. 359. [A party examined before 
 a Master has a right to demand the questions in writing ; but not so a 
 witness. McDougald v. Dougherty, 11 Geo. 570.] 
 
780 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 evi- 
 dence the Master has proceeded, (g^) and then to state 
 the conclusion at which he has arrived. In stating his 
 conclusion, he should so far detail the facts which war- 
 rant it as may enable the Court to judge of its correct- 
 ness ; 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 amount to a satisfactory proof (A) And if liberty 
 r*ooc-| be given, as it frequently is, *to state special cir- 
 • cumstances, he should state, not the evidence, 
 but the facts proved, as on 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 re- 
 port, the Master may make a separate report, (A;) which 
 is prepared, disputed, and confirmed, in the same man- 
 ner as a general one; the only difierence being that when 
 it is intended to act on such a report, the cause is not set 
 down for further directions, but a petition is presented 
 
 {g) 48th Order of August, 1841 ; In re Grant, 10 Sim. 573 ; Meux 
 V. Bell, 1 Hare, 93. 
 
 (h) Lee V. Willock, 6 Ves. 605 ; Meux v. Bell, 1 Hare, 91 ; Oham- 
 pernowne v. Scott, 4 Mad. 209. 
 
 (i) Marlborough v. Wheat, 1 Atk. 454. 
 
 (k) 70th Order of 1831. 
 
 ^ Where certain facts are referred to the decision of a Master, it is his 
 duty to report his conclusions ; and it is irregular and improper for him 
 to report the evidence, without the special direction of the Court. Matter 
 of Hemiup, 3 Paige, 805. [See, in Indiana, McKinney v. Pierce, 5 
 Ind. 422.] 
 
OF THE HEARING AND DECREE. 781 
 
 praying such directions as are consequent on the sepa- 
 rate report. 
 
 Subject to this right of making separate reports, the 
 rule is, that a Master's report must dispose of all mat- 
 ters 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 such matters, 
 or thejntroduction of any matter not referred to him, 
 will render his report erroneous. (?) 
 
 As soon as the Master's report has been filed, the next 
 step is its confirmation by the Court. 
 
 In the ca,se of reports under orders made on petition, 
 a petition is the usual mode of objection and confirma- 
 tion. (??j) But with respect to reports under a decree or 
 decretal order, the regular mode of confirmation 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 defendant 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 or 
 quasi *parties, are dissatisfied with the report, p^„Q„-, 
 they may file exceptions after service of the ^ -' 
 order nisi, and show them as cause against its being 
 made absolute. 
 
 (0 Winter v. Innes, 4 M. & C. 101 ; Jenkins v. Briant, 6 Sim. 605; 
 Gaylor v. Fitzjohn, 1 Keen, 469. 
 
 (to) Empringham v. Short, 11 Sim. 78; Ottey v. Pensam, 1 Hare, 
 322; Beavan v. Gibert, 8 Beav. 308, 
 
 (») 2 Dan. C. P. 1227. 
 
 1 See Hulbert v. McKay, 8 Paige, 652. 
 
782 Adams's doctrine of equity. 
 
 The exceptions, which, like the pleadings and interro- 
 gatories, 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 apparent 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 support 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. (^) On the same principle, 
 the introduction of matter merely irrelevant, is not a 
 
 (o) Purcell V. McNamara, 12 Ves. 166 ; Ballard v. White, 2 Hare, 
 158; Flower v. Hartopp, 6 Beav. 485; Stoeken v. Dawson, 2 Phill. 
 141. 
 
 (p) Adams v. Claxton, 6 Ves. 226 ; Ottey v. Pensatn, 1 Hare, 326 ; 
 Gregory v. West, 2 Beav. 541. 
 
 ^ Story V. Livingston, 13 Pet. 359 ; Dexter v. Arnold, 2 Sumn. 108. 
 [The proceedings before a Master are in the nature of an informal bill 
 in equity ; and the supervisory Court will not interfere to correct any 
 but substantial defects. McDougald v. Dougherty, 11 Geo. 570. An 
 error must be clearly made to appear, in the report, before the Court 
 will interfere, where a question of fact was submitted to the Master, 
 which depended upon thje credibility of witnesses. Sinnickson v. Bru- 
 ere, 1 Stockt. (N. J.) 659 ; Izard v. Bodine, Id. 309 ; Howe v. Rus- 
 sell, 36 Maine, 115 ; Miller v. Whittier, Id. 577 ; McKinney v. Pierce, 
 5 Indiana, 422. 
 
 See, as to practice on exceptions to Master's reports, in the United 
 States Courts, Rule in Eq. No. Ixxxiii, et seq. ; Penn. No. Ixxvi, &c.] 
 
 ^ [Where the Master disregards the instructions and directions of the 
 Court, or where he does not furnish the facts necessary to enable the 
 Court to make a decree, the report will be set aside, though no excep- 
 tions have been filed. Lang v. Brown, 21 Alab. 179.] 
 
OF THE HEARING AND DECREE. 783 
 
 ground of exception, for its irrelevancy must be appa- 
 rent 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 allow- 
 ance 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 conclu- 
 sion ; or if the existing evidence is unsatisfactory, but it 
 is possible that other evidence exists, which in conse- 
 quence of a favorabl^finding has not been adduced; or 
 if the nature of the matter contested, or the frame of 
 the exceptions, is such, that their allowance shows a ne- 
 cessity for *further investigation : it may be re- 
 ferred back to the Master to review his report, L • -I 
 continuing in the meantime the reservation of further 
 directions, and either allowing the exceptions, or making 
 no order thereon. On a reference back to review, the 
 Master may receive additional evidence ; but if it be 
 accompanied by an allowance of the exception, he can 
 come to no conclusion inconsistent with the terms of the 
 exception. If no order is made on the exception, his 
 finding on reviewal is unfettered. (§') 
 
 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 
 
 (q) Egerton v. Jones, 1 Kuss. & M. 694 ; Twyford v. Trail, 3 M. & 
 C. 645; Livesey V. Livesey, 10 Sim. 331; Ex parte Grant, 10 Sim. 
 578; Ballard v. White, 2 Hare, 158 ; Stocken v. Dawson, 3 Phlll. 141. 
 
784 Adams's doctrine of equity. 
 
 proceed to decree on further directions, as if no excep- 
 tions had been filed, (r)' 
 
 The plaintiff may, at his discretion, set down excep- 
 tions for hearing at the same time that he sets down the 
 cause on further directions. But the propriety 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 directions, and the expense of set- 
 ting it down will have been uselessly incurred. 
 
 When the exceptions have been disposed of and the 
 report confirmed, the cause is heard on further direc- 
 tions ; and this is repeated from time to time, as often 
 as any further directions are reserffed. (s) 
 
 The decree on further directions is confined to carry- 
 ing out the equities appearing on the report, consistently 
 with the original decree. If circumstances have occurred 
 since the original decree, which vary the form of relief 
 required, but leave the substantial equity the same, they 
 
 (r) Hall V. Laver, 1 Hare, 571 ; Robinson v. Milner, 1 Hare, 578; 
 Courtenay v. Williams, 3 Hare, 554, 639. 
 (s) 2 Dan. 0. P. ch. 26. 
 
 ' [The bill may be dismissed on the hearing of exceptions to the 
 Master's report, where the Court changes its opinion as to the title of 
 the complainant to recover. The previous interlocutory orders, are then 
 open to revision. Pourniquet v. Perkins, 16 How. U. S. 82. In Lang 
 V. Brown, 21 Alab. 179, however, it was held that where, from the im- 
 proper frame of the decree of reference, the justice of the case cannot 
 be got at without an alteration of the decree, the report of the Master 
 must be directed to stand over, and that portion of the decree containing 
 the erroneous direction be reheard; but that the Court cannot on excep- 
 tions make an order inconsistent with the decree. The decree of refer- 
 ence may also be reheard on appeal, though no exceptions have been 
 taken. Ibid.] 
 
OF THE HEARING AND DECREE. 785 
 
 may be *stated in a petition to be heard with the 
 cause, (ss) But no order can be made on further L ^°^J 
 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 de- 
 pending on the questions referred, has been left unno- 
 ticed, and thus by implication disallowed. (<) If the ori- 
 ginal decree is erroneous, the proper mode of correction 
 is by a rehearing or appeal. 
 
 A decree thus made, without any reservation of fur- 
 ther directions, constitutes a final decree ; and after it 
 has been pronounced, the cause is at an end, and no fur- 
 ther hearing can be had. It often happens, however, 
 that although the decree requires no reservation of fur- 
 ther directions, yet there is a possibility of future inte- 
 rests arising, which having a potential existence only, 
 cannot be then the subject of judicial decision, and 
 which, therefore prevent the cause from being alto- 
 gether disposed of; e. g., where a fund is given to a 
 tenant for life, living at the time of the decree, with re- 
 mainder to a class of individuals who cannot be ascer- 
 tained 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 other decree as the immediate circumstances 
 warrant, 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 
 
 (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. 
 Keighley, 4 Madd. 38 ; Camp v. Moody, 2 Ves. 470 ; Creuze v. Hun- 
 ter, 2 Ves. Jun. 164. 
 
 50 
 
786 Adams's doctrine of equity. 
 
 similar difficulty exist with respect to part only of the 
 property in litigation, and such property be in the hands 
 of the Court, it will be met by carrying it over to a sepa- 
 rate account, distinguished by an explanatory title, with 
 a like liberty to apply. In this way the share of an in- 
 fant, or of a married woman, will be carried over to a 
 separate account, entitled in the *one case the 
 L -• infant's account, and in the other, the account 
 of the husband and wife, with liberty for the infant to 
 apply on attaining twenty-one, and for a husband and 
 wife to apply generally, so that the consent of the wife 
 to relinquish her equity for a settlement may be ascer- 
 tained. (7.i) 
 
 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 claimants, and such claim- 
 ants may then present a petition to have the fund out 
 of Court, and may serve it on the party in whose name 
 it stands, (v) 
 
 The hearing of the cause on further directions is gene- 
 rally the occasion for deciding on the "costs of the cause." 
 The precise nature of the costs included under this ex- 
 pression, as distinguished from incidental 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 
 
 {u) 2 Dan. 1251. (y) 2 Dan. C. P. 1342. 
 
OF THE HEARING AND DECREE. 787 
 
 law, purely litigious, but in many instances 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 juris- 
 diction of the Court, the general principle is, that the 
 party requiring aid shall be liable for the costs.' Such, 
 
 ' [The subject of costs is now very mucli governed by statute, and by 
 the rules of Court, in the dififerent States. Subject to such provision, 
 the general principles stated in the text appear to govern. 
 
 Thus it is established that the costs of a bill of discovery are to be 
 paid by the complainant, unless the defendant, on application made 
 before bill filed, has unreasonably refused to make disclosure. Burnett 
 V. Sanders, 4 Johns. Ch. 503 ; King v. Clark, 3 Paige, 76 ; Boughton 
 v. Philips, 6 Id. 334 ; Harris v. Williams, 10 Id. 108 ; Price v. Tyson, 
 3 Bland, 392 ; McElwee v. Sutton, 1 Hill Eq. 32 ; Dennis v. Riley, 1 
 Foster, N. H. 50. If, however, the bill also pray general or special 
 relief, the costs are as in other cases. McDougall v. Miln, 2 Paige, 
 325 ; Boss v. Adams, 5 Dana, 509. And the costs on successful ex- 
 ceptions to an answer, are of course to be paid by the defendant. Price 
 V. Tyson, 3 Bland. 392. 
 
 So, a mortgagor is obliged to pay the costs, on bill to redeem, unless 
 the mortgagee has set up an unconscientious defence, or has claimed the 
 property as owner. Slee v. Manhattan Co. 1 Paige, 48 ; Turner v. Tur- 
 ner, 3 Munf 66 J Saunders v. Frost, 5 Pick. 259 ; May v. Eastin, 2 
 Porter, 414 ; Bridgen v. Carhartt, Hopkins, 234. 
 
 On the other hand, the complainant in an interpleader suit, where his 
 bill is necessarily and properly filed as against both defendants, is entitled 
 to his costs out of the fund : Richards v. Salter, 6 Johns. Ch. 445 ; Ba- 
 deau V. Rogers, 2 Paige, 209 ; Atkinson v. Manks, 1 Cowen, 691 ; Can- 
 field V. Sterling, Hopkins, 224 ; Spring v. So. Car. Ins. Co. 8 Wheat. 
 268 ; or from the unsuccessful defendant. Beers v. Spooner, 9 Leigh,, 
 155. So a mere stakeholder who submits to the judgment of the Court, 
 is entitled to his costs, or at least is not subjected to them. Dowdall v. 
 Lenox, 2 Edw. Ch. 267 ; Stafford v. Mott, 3 Paige, 100 ; Buck v. 
 Swazey, 35 Maine, 42. Though he is not entitled to counsel fees. 
 Ohio Life Ins. Co. v. Winn, 4 Maryl. Ch. 253. 
 
 In partition, the costs generally come out of the estate, or are divided 
 
788 ADAMS'S DOCTRINE OF EQUITY. 
 
 for instance, are suits for discovery and for perpetua- 
 ting testimony, in which the costs are paid by the plain- 
 tiff ; suits for partition, in which, by analogy to a parti- 
 tion at law, the costs of the commission and of making 
 out the title are paid in proportion to the respective in- 
 terests, and *no other costs either precedent or 
 L J subsequent are allowed ; and suits for assignment 
 of dower, in which by the same analogy, no costs are 
 given ; {vv) suits for redemption, or in the nature of re- 
 demption, as for setting aside a purchase on repayment 
 of the money advanced, in which the party redeemed is, 
 in the absence of gross misconduct, entitled to his 
 costs ; (w) suits against an heir to establish a will, or 
 against a vicar or rector to establish a modus, in which 
 the heir, unless he vexatiously litigate the will, and the 
 vicar or rector, 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 ;(2/) and suits for the administration 
 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, 
 
 (yv) 2 Dan. 1103 ; Bamford v. Bamford, 5 Hare, 203. 
 
 («>) 2 Dan. C. P. 1260-1267. 
 
 (x) Id. 1257-1260. {y) Id. 1286. 
 
 between all the parties. But where the complainant causes additional 
 litigation by setting up an unfounded claim, he will be charged with the 
 additional costs occasioned thereby. Crandall v. Hoysradt, 1 Sandf. 
 Ch. 40. 
 
 Where heirs are necessary parties, and make no resistance to the 
 decree, they will be entitled to their costs. Dyer v. Potter, 2 Johns. 
 Ch. 152.] 
 
OF THE HEARING AND DECREE. 789 
 
 to the plaintiff, as the primary charge on the personal 
 estate, (z)^ The same principle 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 ultimate 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 plain- 
 tiff in suits where a claim by the Crown is involved, on 
 the ground that they are incurred in performance of a 
 public duty ; and a similar claim has been set up on 
 behalf of provisional assignees in suits for foreclosure of 
 a bankrupt's or insolvent's estate. *But both 
 these claims have been disallowed ; for whatever L J 
 be the 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 ascertained 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 al- 
 lowance called " costs as between solicitor and client." 
 In suits of a litigious class, the taxation is always " as 
 
 (z) Shuttleworth v. Howarth, Cr. & P. 228 ; Larkins v. Paxton, 2 
 M. & K. 320; Tipping v. Power, 1 Hare, 409 ; Tanner v. Danoey, 9 
 Beav. 339. 
 
 (a) Tipping v. Power, 1 Hare, 409 ; Hepworth v. Heslop, 3 Hare, 485. 
 
 (5) Christian v. Foster, 2 Ph. 161. 
 
 (c) Perkins v. Bradley, 1 Hare, 233 ; Appleby v. Duke, 1 PhiU. 272. 
 
 • [See, on this subject, Decker v. Miller, 2 Paige, 149 ; Hunn v. 
 Norton, Hopkins, 344.] 
 
790 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 adminis- 
 tration of assets, in which the trustee or personal repre- 
 sentative 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." ((^)' In suits to establish or 
 administer a charity, if the fund be of adequate amount, 
 and the parties have conducted 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 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 whether, notwith- 
 standing *such dismissal, he may not be charged 
 ■- -' with costs. But the rule seems to be established 
 that the bill in such case will be dismissed without costs ; 
 
 (d) 2 Smith, C. P. 461. 
 
 (e) Stanton v. Hatfield, 1 Keen, 358. 
 
 ^ [See, on this subject, Hill on Trustees, 805, et seq., and notes (2d 
 Am. Ed.). McKim v. Handy, 4 Maryl. Ch. 228.] 
 
OF THE HEARING AND DECREE, 791 
 
 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 com- 
 menced 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 successful 
 party to receive costs, the practice is less uniform, and 
 decrees are frequently made, and bills dismissed without 
 costs, on the ground that the failing party has been mis- 
 led by his adversary's conduct, 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.(^)^ 
 
 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 reim- 
 bursed the expense of defending his right. (A) There is, 
 however, no doubt that a limited discretion is exercised 
 by the Court; but, subject to such discretion, the gene- 
 ral rule is that the costs will follow the event, and more 
 especially so if the plaintiff's claim be either made or 
 
 (/) 3 Sug. V. & P. 137 ; Westcott v. Culliford, 3 Hare, 275 ; Mai- 
 den V. Fyson, 9 Beav. 347. [See Brooks v. Byam, 2 Story, 553.] 
 
 {g) Fenton v. Brown, 14 Ves. 144; Robinson v. Kosher, 1 N. C. C. 
 7; Cogan v. Stephens, Lewin on Trustees, 730; 2 Dan. C. P. 1279. 
 
 (h) Millington v. Fox, 3 M. & 0. 352. 
 
 ' [See Bradley v. Chase, 22 Maine, 511 ; Pinnock v. Clough, 16 
 Verm. 500 ; Clark v. Reed, 11 Pick. 446 ; Hammersley v. Barker, 2 
 Paige, 372; Pattison v. Hull, 9 Cowen, 747; Jones v. Mason, 5 Rand. 
 677 ; Blakeney v. Ferguson, 14 Ark. 460.] 
 
792 ADAMS'S DOCTRINE OF EQUITY. 
 
 resisted on the ground of fraud, (i)^ 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. (ky 
 
 *If a specific tender of the amount due be 
 L "^ -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 subse- 
 quent costs ; and even where no tender can in strictness 
 
 (t) Scott V. Dunbar, 1 Moll. 442; Wright v. Howard, 1 S. & S. 190. 
 (k) 3 Dan. C. P. 40; 2 Smith, 463; Strickland v. Strickland, 3 Beav. 
 
 242. 
 
 ' [As a general rule, the prevailing party is entitled to costs. This, 
 however, is a matter to a certain extent within the discretion of the 
 Court, though that discretion is limited by fixed rules. Nicoll v. 
 Trustees, 1 Johns. Ch. 166 ; Eastburn v. Kirk, 2 John. Ch. 317 
 Matter of Hemiup, 3 Paige, 305 ; Woodson v. Palmer, 1 Bail. Eq. 95 
 Lee v. Pindle, 12 Gill & John. 288 ; Clark v. Eeed, 11 Pick. 446 
 Tomlinson v. Ward, 2 Conn. 396 ; Brooks v. Byam, 2 Stoiy, 553 
 Gray v. Gray, 15 Alab. 779. Partial relief usually entitles the com 
 plainant to costs. Rough v. Marshall, 4 Bibb, 567 ; Hightower v, 
 Smith, 5 J. J. Marsh. 542. Where there has been an oppressive 
 accumulation of costs, occasioned by the errors and imperfections of the 
 complainant's proceedings, the Court will relieve the defendants from 
 their payment. Blakeney v. Ferguson, 14 Ark. 460.] 
 
 " [Though there is no rule that in every instance in which a defen- 
 dant takes several grounds of defence, one feasible and successful, the 
 rest doubtful or invalid, that circumstance ought to avail the plaintiff on 
 the subject of costs; yet, where, upon the evidence, the plaintiiF's case 
 fails absolutely and wholly as a case for equitable relief, but the defendant 
 has in the suit endeavored to support claims without any just foundation, 
 and vexatiously disputed the legal title of the plaintiff, the bill ought to 
 be dismissed without costs. Clowes v. Beck, 2 De G. Maon. & Gord. 
 731.] 
 
OF THE HEARING AND DECREE. 793 
 
 be made, yet if a defendant has offered terms which 
 would have rendered the suit unnecessary, the plaintiff, 
 though in strictness entitled to a decree, may be refused 
 his costs. (7) 
 
 The manner of compelling obedience to a decree 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 contempt of the suhpcena; if for per- 
 formance 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 person, 
 by sequestrations nisi and absolute, and in that of a cor- 
 poration by dAstringas and sequestration. The only dif- 
 ferences were, that an attachment for non-performance 
 of a decree was not, like an attachment on mesne pro- 
 cess, a bailable writ ;(j2) 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, commanding him to put the plaintiff in pos- 
 session ; 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 
 performance. 
 
 We have already seen that by the present orders of 
 the Court the two steps of attachment with proclama- 
 
 (0 Millington v. Fox, 3 M. & 0. 352 ; Kelly v. Hooper, 1 N. C. C. 
 197. [See Rucker v. Howard, 2 Bibb, 166.] 
 (m) 2 Dan. 1020. 
 (n) 2 Dan. 1326. 
 
794 Adams's doctrine of equity. 
 
 tions and writ of rebellion are abolished, and the process 
 PSQ41 "^ contempt *reduced to attachment, serjeant-at- 
 arms, and sequestration, (o) 
 
 The same orders which effected this reduction have 
 also abolished the writ of execution, and have substi- 
 tuted service 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 prosecuting it shall be entitled to 
 an attachment, and on default after arrest to sequestra- 
 tion, 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 
 possession, 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 favor of, or against 
 whom the order is made, be not a party to the record. (|)) 
 
 If the decree or order direct the payment of costs 
 alone, it is enforced by a suhpoena. for costs and a non- 
 bailable attachment. But if the payment of other 
 moneys be also directed, the ordinary process will ex- 
 tend to the whole, and a suhpoena is unnecessary. If 
 payment be directed out of a fund or an estate, a sub- 
 poena does not lie, but a sufficient proportion will be 
 ordered to be sold. (9)^ 
 
 (0) Supra, Appearance; Answer. 
 
 Ip) Aug. 1841, X, xiii, xv. {q) 2 Dan.. C. P. 1328. 
 
 ^ [The costs of a suit instituted to obtain the opinion of the Court 
 upon a specific devise of real estate, in which infants were interested, 
 were directed to be raised by sale or mortgage of a sufficient part of the 
 estate. Mandeno v. Mandeno, 23 L. J. Ch. 511. J 
 
OF THE HEARING AND DECREE. 795 
 
 The inefficacy of the process of contempt for compel- 
 ling a perverse defendant to obey has been already com. 
 mented 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 instruments, and the 
 delivery up of documents; and, secondly, by 1 & 2 Vict. 
 0. 110, in regard to the payment of sums of money. 
 
 *By the fifteenth rule of 1 Wm. 4, c. 36, it is 
 directed that when the execution of any instru- L"^^^^] 
 ment, or the making of any transfer or surrender is de- 
 creed, 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 six- 
 teenth 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 bj^ 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 indi- 
 rectly by sequestration, but by direct writs of fieri facias 
 or elegit; and if it appears on a return of a fieri facias 
 that the sheriff" has seized, but not sold the goods, then 
 by a further writ of venditioni exponas, (s) ' 
 
 (>•) 2 Dan. 1050. (s) Ibid. 1020. 
 
 ' [It seems now settled, after some doubts, that an action may be 
 
796 Adams's doctrine of equity. 
 
 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 imprison- 
 ment and sequestration.' 
 
 maintained upon a decree in equity for the payment of a specific sum. 
 Pennington v. Gibson, 16 How. U. S. 65. See Evans v. Tatem, 9 
 Serg. & E. 252.] 
 
 ' [By the 8th Eule in Equity of the United States Courts, it is pro- 
 vided that final process to execute a decree may, if the decree be solely 
 for the payment of money, be by a writ of execution in the form used in 
 the Circuit Court in suits at common law in actions of assumpsit. If 
 the decree be for the performance of any specific act, as for example, for 
 the execution of a conveyance of land, or the delivering up of deeds, or 
 other documents, the decree shall, in all cases, prescribe the time within 
 which the act shall be done, of which the defendant shall be bound 
 without further service to take notice ; and upon afiSdavit filed in the 
 Clerk's office, that the same has not been complied with within the pre- 
 scribed time, the Clerk shall issue a writ of attachment against the de- 
 linquent party, from which, if attached thereon, he shall not be dis- 
 charged, unless upon full compliance with the decree, and the payment 
 of all costs, or upon a special order of the Court, or of a Judge thereof, 
 upon motion and affidavit enlarging the time for the performance thereof. 
 If the delinquent party cannot be found, a writ of sequestration is to issue 
 against his estate. The 8th Rule in Pennsylvania is to exactly the same 
 effect] 
 
OF THE REHEARING AND APPEAL. 797 
 
 *CHAPTER VIII. [*396] 
 
 OP THE REHEAKING AND APPEAL. 
 
 The next subject for consideration, after the regular 
 conclusion of a suit by decree is the j urisdiction for al- 
 teration or reversal, (a) And, it should be observed, that 
 the authority for this purpose is not confined as at law 
 to the final judgment, but extends to interlocutory pro- 
 ceedings in the cause. 
 
 The first step after judgment is, as we have seen, the 
 giving out and settlement of the minutes. If the mi- 
 nutes do not correspond with the judgment, the requisite 
 alterations are e£Fected in the manner already pointed 
 out. But in order that the judgment itself may be im- 
 peached, the decree must no longer remain in minutes, 
 but must have been regularly drawn up, passed and 
 entered, so as to constitute a record, though not a con- 
 clusive one, of the Court of Chancery. 
 
 After an entry and before enrolment, the decree is in 
 some sense still in fieri, and may be altered by a rehear- 
 ing before the same jurisdiction, viz., either before the 
 Judge who originally made it, or before the Lord Chan- 
 cellor as the head of the Court. If it be reheard before 
 the same Judge, it may be again reheard by the Chan- 
 cellor. (&) But after it has been reheard by the Chan- 
 
 (a) 2 Dan. 1331. 
 
 (6) Brown v. Higga, 8 Ves. 567. 
 
798 ADAMS'S DOCTRINE OF EQUITT, 
 
 cellor, 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 enrolment on a com- 
 r*3971 
 
 L -" mon petition, without the expense of a rehear- 
 ing, (cc) And if the order itself has been made on mo- 
 tion, or on an ex parte petition irregularly presented, it 
 is not the subject of rehearing, but may be discharged 
 on an independent motion, (rf)' In all other cases, a 
 revisal or variation before enrolment 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 
 enrolment has taken place it becomes a conclusive decree 
 in Chancery, and can only be altered by an appellate 
 
 (c) Moss V. Baldock, 1 Phill. 118. 
 
 \cc^ 45th Order of 1828 ; 2 Smith C. P. 14 ; Whitehead v. North, 
 Cr. & P. 78. 
 
 (fZ) West V. Smith, 3 Beav. 306. 
 
 ^ Gardiner, J., Gracie v. Freeland, 1 Comstock, 236. 
 
 ''■ A rehearing is not a matter of right, but rests in the sound discre- 
 tion of the Court. Daniel v. Mitchell, 1 Story, 198 ; [Hodges v. N. E. 
 Screw Co. 5 Rhode Isl. 9.] 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 over- 
 looked. 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 
 circumstances authorizing the Court to interfere; that the petitioner has 
 not been guilty of laches; and that the matter on which he relies could 
 not have been obtained by reasonable diligence at the former hearing. 
 Walsh V. Smyth, 3 Bland, 9 : see also. Burn v. Poaug, 3 Desau. 596 ; 
 Wilcox V. Wilkinson, Cam. & Nor. 528 (538); S. C. 1 Murph. E. 11. 
 [A rehearing may be granted even after the lapse of thirty years, for an 
 obvious error in the decree, where a fund, which was the subject of the 
 original suit, has remained undistributed. Brandon v. Brandon, 25 L. 
 J. Ch. 896. See, further, post, note to page, 399.] 
 
OF THE REHEARING AND APPEAL. 799 
 
 jurisdiction, (e) If, therefore, either party desire a re- 
 hearing, he should enter a caveat against enrolment, 
 which will stay it for twenty-eigl>t days, and give him an 
 opportunity to apply for the purpose. But if he neglect 
 this, and the enrolment takes place before an order to 
 rehear has been served, it cannot afterwards be vacated 
 except on special grounds of fraud, surprise, or irregu- 
 larity. (/) 
 
 The appellate jurisdiction in equity is twofold ; viz., 
 1. In the King, whose conscience is ill-administered, 
 and who may issue a special commission pro re tiatd to 
 reconsider his Chancellor's decree ;(g') and 2. In the 
 House of Lords, on petition to them as the supreme ju- 
 dicature 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 dis- 
 pute respecting its validity arose between the Houses of 
 Lords and Commons, and it was contended that the ap- 
 pellate jurisdiction in equity, like that on writs of error 
 at common law, could only be exercised under a refer- 
 ence from the Crown, *and not on a mere peti- p^,.r,QQ-i 
 tion to the Lords. The dispute 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 jurisdiction, and the result of that 
 
 (e) McDermott v. Kealy, 1 Phill. 267; Sheehy v. Muskerry, 7 CI. & 
 F. 1 ; Andrews v. Walton, 8 CI. & F. 457 ; [Ducker v. Belt, 3 Maryl. 
 Ch. 13 ; Hitch v. Fenby, 4 Id. 190 ; Simpson v. Downs, 5 Rich. Eq. 
 421 ; Eobinson v. Lewis, 2 Jones Eq. 25. See also Hurlburd v. Free- 
 love, 3 Wise. 537.] 
 
 if) Hughes V. Garner, 2 Y. & C. 335 ; Sheehy v. Muskerry, 7 CI. 
 & F. 22 ; Dearman v. Wych, 4 M. & C. 550. 
 
 ((/) Hale's Jurisdiction of the House of Lords, Pref. xxxix, and p. 
 186. 
 
800 ADAMS'S DOCTRINE OP EQUITY. 
 
 contest, though in terras a compromise, has been practi- 
 cally an abandonment of the c\aim.{gg) 
 
 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-as- 
 sembling of Parliament it was resumed, and a resolution 
 was passed b}- 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 resistance. 
 And at the meeting of Parliament, after the next proro- 
 gation in February, 1677, the Commons appear to have 
 tacitly abandoned the contest ; and although their pre- 
 vious resolution was not in terms rescinded, the juris- 
 diction has been since exercised without dispute. (A) 
 The jurisdiction is confined to appeals in equity, and 
 does not extend either to the administrative power in 
 
 ((/r/) Hargrave's Pref. to Hale's Jurisdiction, p. xcix-exxiv. 
 (A) Hale's Jurisdiction of Lords ; Hargrave's Preface, cxxxv-clxvii, 
 Macqueen's Practice, 70-92. 
 
OF THE REHEARING AND APPEAL. 801 
 
 lunacy, or to *the jurisdictions conferred by sta- 
 tute, unless where such appeal is expressly given, ^ ^^ 
 or where the statutory jurisdiction is a mere extension 
 of a previous equity, (i) 
 
 There exists a marked distinction in principle between 
 rehearing and appeal in regard to the evidence 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. (/<;)' But on an appeal, which is a resort 
 
 ({) Bignold V. Springfield, 7 CI. & F. 71. 
 
 (k) Wright V. Pilling, Pre. Cha. 496 ; Lovell v. Hieks, 2 Y. & C. 
 472; Herring v. Clobery, Cr. & P. 251 ; Roberts v. Marclianf, 1 Phill. 
 371. 
 
 ^ [There are but two grounds upon which a petition for a rehearing 
 will be entertained : first, for error of law apparent on the face of the 
 decree, and any part of the record may be resorted to for the purpose of 
 making such error manifest ; second, for newly discovered testimony ; 
 and this testimony must be important, and must materially vary the case 
 made ; it must not be cumulative as to the evidence which was before 
 the Court upon the trial ; and it must be such as the party petitioning 
 for a rehearing was not aware of before the trial, and could not by pro- 
 per diligence and inquiry have discovered. Plunt v. Smith, 3 Kich. 
 Eq. 465. J Upon a rehearing no evidence can be gone into which was 
 in the case at the original hearing and capable of being then produced. 
 Story, J., in Jenkins v. Eldredge, 3 Story, 299. But where evidence 
 in the case was omitted to be read at the original hearing, such, for ex- 
 ample, as a document, or where the proof of an exhibit 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 evi- 
 dence, 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 evi- 
 dence ; or where, after a decree, leave is asked to file a bill of review- 
 Si 
 
802 ADAMS'S DOCTRINE OF EQUITT. 
 
 to a superior jurisdiction to determine whether the Court 
 below was right, no evidence can be tendered except that 
 which is entered as read in the decree, or the rejection 
 of which is a ground of appeal. (Z)' 
 
 (J) Eden v. Lord Bute, 1 B. P. C. 465. 
 
 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 importance of 
 testimony before the hearing of his case, 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. R. 365 ; see also Cook v. Evans, 9 
 Yerg. 287; Cloland v. Gray, I Bibb, 38 ; [Bentley v. Phelps, 3 Wood. 
 & M. 403.] 
 
 If the Court will, at all, grant a rehearing where the newly-discovered 
 evidence consists wholly of confessions made by the plaintiff 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 sus- 
 ceptible of different interpretations. Daniel v. Mitchell, ubi supra. 
 
 In Hinson v. Pickett, 2 Hill, C. R. 351, it was held that a rehearing 
 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. Winans, 2 Paige, 24 ; Baker v. Whiting, 
 ubi supra. 
 
 [A rehearing, however, will sometimes be ordered on terms, though 
 in strictness no rule of law has been violated, as where it appears that 
 by the rejection of evidence offered, the party prevailing has obtained 
 an unconscientious advantage. Simms v. Smith, 11 Geo. 195. 
 
 The Supreme Court of the United States will not allow a case, even a 
 suit in equity, once argued before it and decided, though by an equally 
 divided Court, to be re-argued, unless one of the judges who concurred 
 in the judgment, desires it ; in which case, the Court will order a re- 
 argument without waiting for the application of counsel. Brown v. 
 Aspden, 14 How. U. S. 25. Nor will the Court grant a rehearing 
 where the case has been remitted to the Court below. Peck v. Sander- 
 son, 18 How. U. S. 42.] 
 
 ^ [An appeal from a final decree opens up the whole merits for inves- 
 
OF THE REHEARING AND APPEAL. 803 
 
 The manner of obtaining a rehearing, or of making 
 an appeal, is by petition stating the order or decree com- 
 plained 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. (w) 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, (t?) It is 
 not necessary, though sometimes convenient, that the 
 petition should state 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, (jo) containing a narra- 
 tive of facts, and a summary of the reasons on which 
 
 (m) 50tli Order of 1841 ; Macqueen, 131. 
 (») Wood V. Milner, IJ. & W. 616. 
 (o) Giffard v. Hort, 1 Sch. & L. 398. 
 (p) 2 Dan. 1367. 
 
 tigation which were involved in or connected with the subject-matter of 
 such decree. TeafF v. Hewitt, 1 Ohio St. N. S. 511. And so an ap- 
 peal from a decree upon a cross-bill opens the whole ease presented both 
 by the original and cross-bill ; though there be no appeal from the de- 
 cree dismissing the original. Woodrum v. Kirkpatrick, 2 Swan. 218. 
 
 None but parties to the decree are entitled to take an appeal. McKim 
 v. Mason, 3 Maryl. Ch. 186. And in general no appeal can be taken 
 by a party, until all the questions in the cause, as to others as well as 
 himself, are settled. Where, however, the claims of the complainant 
 against several defendants are several and distinct, and a separate decree 
 is made as to one without interfering with the rest, the defendant thus 
 affected may have an appeal, though the rest of the case may be undis- 
 posed of. Dougherty v. Walters, 1 Ohio St. N. S. 201.] 
 
 ^ A petition for a rehearing should state the grounds on which it is- 
 asked. Wiser v. Blachly, 2 Johns. C. R. 488. 
 
804 ADAMS S DOCTEINE OF EQUITY. 
 
 he relies, and accompanied by an appendix of evidence. 
 r*Anm *^^ order to warrant a rehearing or appeal, it 
 '- is sufficient that some litigated question has 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. (2)^ A decree made on default of appear- 
 ance at the hearing, is also incapable 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 ccmfesso, the defendant, though he may obtain 
 a rehearing, must waive any objection to the pro con- 
 fesso 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 
 sufficient ground of complaint ; e. g., where they are im- 
 properly given or refused, out of an estate or fund. But 
 the ordinary costs of suit are discretionary with the 
 Court, and if the decision on the merits is admitted to 
 be correct, the Court will not rehear it on a mere ques- 
 tion 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 prac- 
 tice, (w) 
 
 (g) Wood V. Griffith, 1 Meriv. 35 and 720 ; Woodmason v. Dojne, 
 10 CI. & F. 22 ; 2 Dan. 1.331. 
 
 (r) Booth V. Creswicke, Or. & P. 361 ; 44th Order of August, 1841; 
 Rtubbs V. , 10 Ves. 30. 
 
 (s) 89th Order of 1845 ; 1 Dan. 480. 
 
 (0 2 Dan. 1334. 
 
 (w) Attorney- General v. Butcher, 4 Russ. 181 ; Taylor v. Southgate, 
 
 1 Coster V. Clarke, 3 Edw. Ch. R. 405. 
 
 2 See Travis v. Waters, 1 Johns. C. R. 48 ; [Eastburn v. Kirk, 2 Id. 
 317.] 
 
OF THE REHEARING AND APPEAL. 805 
 
 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 support- 
 ing 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 procedure in a cause, they 
 will sometimes be so given, though, on a rehearing below, 
 no *costs would have been given, or they would r^^^A-i-i 
 have been paid out of the estate. 
 
 The effect of a successful rehearing or appeal is obvi- 
 ously 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 pen- 
 dency ; 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 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) 
 
 4 M. & C. 203 ; Augell v. Davis, 4 M. & C. 360 ; Chappell v. Purday, 
 2 Phill. 227 ; 2 Dan. 1334-5. 
 
 (y) 2 Dan. 1355. 
 
 (w) Storey v. Lennox, 1 M. & C. 685 ; Corporation of Gloucester v. 
 Wood, 3 Hare, 150 ; 1 Ph. 493 ; Garcias v. Kicardo, 1 Ph. 498 ; 
 Drake v. Drake, 3 Hare, 523 ; 2 Smith C. P. 74. 
 
 ' [Costs on appeal are now regulated by statute in most of the United 
 States. Where there are no special provisions on the subject, the gene- 
 ral rule still appears to be to give the appellant no costs on the reversal 
 of the decree : Bvertson v. Booth, 20 John. 499 ; Murray v. Blatoh- 
 ford, 2 Wend. 221 ; Burrows v. Miller, 3 Bibb, 77 ; see The Margaret 
 V. The Conestoga, 2 Wall, Jr. 116 ; and to give the appellee his costs 
 on affirmance. Mpwatt v. Carow, 7 Paige, 328 ; Boyd v. Brisban, 11 
 Wend. 529 ; March v. Thompson, 1 Litt. 310.] 
 
806 Adams's doctrine of equity. 
 
 [*402] *CHAPTER IX. 
 
 OF THE CROSS-BILL ; BILL OF REVIVOR, AND OF SUPPLEMENT ; 
 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 deter- 
 mine the litigation ; 2. That the bill is properly framed 
 at the outset for obtaining that decree; and 3. That the 
 suit is conducted to its termination without interruption 
 or defect. It is obvious that these assumptions cannot 
 always be correct ; and it is therefore requisite, before 
 quitting the subject, 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 litigation.^ This 
 
 ^ 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 Ch. in Field v. 
 Schieffelin, 7 Johns. C. R. 250. But see, in general, Sterry v. Arden, 
 1 Johns. C. R. 62 ; and White v. Buloid, 2 Paige, 164, wherein the 
 subject of cross-bills is discussed. 
 
 [The ordinary course of the Court is not to stop the progress of a 
 cause, unless a cross-bill is filed in due time. Eddleston v. Collins, 3 
 De G-. Maon. & G. 1 ; 17 Jur. 331 ; per L. J. Turner. In England, 
 as a general rule, a cross-bill must be filed before publication passed; but 
 in Georgia it is held, that it must be filed "before the pleadings are made 
 up. Time for filing the cross-bill, however, may be enlarged on cause 
 
OF THE CROSS-BILL. 807 
 
 imperfection may arise either from cross relief or dis- 
 covery being required by the defendants, or from the 
 
 shown. Josey v. Rogers, 13 Geo. 478 ; Sterry v. Arden, 1 Johns. Ch. 
 62 ; Story Eq. PI. § 395. 
 
 By the Rules in Eq. U. S. No. Ixxii, Penna. No. Ixviii, it is provided, 
 that where a defendant in equity files a cross-bill for discovery only 
 against the plaintiff iu the original bill, the defendant to the original 'bill 
 shall first answer thereto, before the original plaintiff shall be compell- 
 able to answer the cross-bill. The answer of the original plaintiff to 
 such cross-bill may be read and used by the party filing the cross-bill at 
 the hearing, in the same manner, and under the same restrictions as the 
 answer praying relief may now be read and used. A party filing a cross- 
 bill mast take steps to obtain an answer, make an issue and have a hear- 
 ing, at the same time with the original bill. Reed v. Kemp, 16 111. 
 445.] 
 
 A cross-bill, formal in other respects, but which omits the prayer, that 
 it be allowed as such, and heard with the original bill, is amendable ; 
 and on application to the Chancellor, in vacation, to dissolve an injunc- 
 tion obtained on the bill, should be regarded by him pro hac vice, as 
 amended. Such bills are treated with greater indulgence than original 
 bills. Nelson v. Dunn, 15 Ala. 501. 
 
 An original and a cross-bill make but one suit, and when the original 
 is dismissed, the dismissal carries with it the cross-bill : Elderkin v. Fitch, 
 2 Carter (Ind.) 90 ; [Cockrell v. Warner, 14 Ark. 346 ; and on the other 
 hand, where a defendant files a cross-bill founded on matters clearly cog- 
 nizable in equity, the cross-bill will supply any defect in jurisdiction : 
 lb. If the original bill is without equity, or if it is inconsistent with 
 the answer, the cross-bill cannot be sustained : Dill v. Shahan, 25 Ala. 
 694. New parties cannot be introduced by a cross-bill. Shields v. 
 Barrow, 17 How. U. S. 130; contra,'m Illinois, Jones v. Smith, 14 111. 
 229. 
 
 In Arkansas, if a defendant denies in his answer the allegations of the 
 bill, and sets forth a complaint against the complainant, calls for an an- 
 swer and prays for a decree, this is considered, for all substantial pur- 
 poses, as a cross-bill. Allen v. Allen, 14 Ark. 666. 
 
 See as to costs on a cross-bill dismissed on dismissal of original bill, 
 Derbyshire v. Home, 5 De G. & Sm. 702 ; aff'd 3 De G-. Macn. & G. 
 80.] 
 
808 ADAMS'S DOCTRINE OF EQUITT. 
 
 existence of litigation between co-defendants.^ 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 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 con- 
 tinuance. 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, 
 L J that it should state the original bill and the pro- 
 ceedings thereon, and the rights of the party exhibiting 
 the bill, which are necessary to be made the subject of 
 cross litigation, or the ground on which he resists the 
 claims of the plaintifi" in the original bill, if that is the 
 object of the new bill.'' But a cross-bill being generally 
 
 (a) 1 Dan. 565. 
 
 ' See Talbot v. McGee, 4 Monr. 375 ; Anderson v. Ward, & Monr. 
 419 ; [Eddleston v. Collins, 17 Jur. 331 ; 3 De G. Macn. & G. 1.] 
 
 2 [Armstrong v. Pratt, 2 Wise. 299.] 
 
 - Miller v. Fenton, 11 Paige, 18 j Taylor v. Titus, 2 Edw. C. R. 135; 
 White y. Bullock, 3 Edw. C. R. 453. [Graham v. Tankersley, 15 Ala. 
 634; Draper v. Gordon, 4 Sandf. Ch. 210; Andrews v. Hobson, 28 
 Alab. 219.] 
 
 ' 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. Galatian v. Erwin, Hopk. 48, 
 S. C. 8 Cow. 361 ; May v. Armstrong, 3 J. J. Marsh. 262 ; Daniel v. 
 Morrison's Bx'rs, 6 Dana, 186; Fletcher v. Wilson, 1 S. & M. Ch. 376; 
 Draper v. Gordon, 4 Sandf. C. R. 210. [Josey v. Rogers, 13 Geo. 478; 
 Slason V. Wright, 14 Verm. 208; Rutland v. Paige, 24 Id. 181; Draper 
 V. Gordon, 4 Sandf. Ch. 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 
 
OF THE CKOSS-BILL. 809 
 
 considered as a defence, or as a proceeding to procure a 
 complete determination of a matter already in litigation 
 in the Court, the plaintiff 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)1 
 
 The second class of imperfection arises where the bill 
 is framed improperly at the outset. This imperfection 
 ought regularly to be rectified by amendment ; but if 
 
 (i) Mitf. 80-83 ; Farquharson v. Seton, 5 Kuss. 45 ; Cottingham v. 
 Lord Shrewsbury, 3 Hare, 627 ; Sanford v. Morrice, 11 CI. & F. 667. 
 
 Underbill v. Van Cortlandt, 2 Johns. C. R. 339, 355. [So, though the 
 allegations of a cross-bill must relate to the subject-matter, it is not re- 
 stricted to the issues of the original bill. Nelson v. Dunn, 15 Alab. 
 501. Thus, where the plaintiff in the cross-bill seeks discovery in order 
 to enable him to protect himself against discovery, or sets up any special 
 matter by way of estoppel or in bar, it is not obnoxious to the objection 
 of introducing new matter into the suit. Josey y. Rogers, 13 Geo. 478. 
 
 A defendant, however, cannot file a cross-bill where his rights are 
 fully protected by his answer. Morgan v. Smith, 11 Illinois, 194. A 
 plaintiff in a cross-bill is not allowed to contradict his answer to the 
 original bill. If he has made a mistake as to the facts in his answer, 
 the only mode of correcting it is by application for leave to amend the 
 answer, or file a supplemental one, and not by the exhibition of a cross- 
 bill. Graham v. Tankersley, 15 Alab. 634. 
 
 It would seem that when a defendant is desirous of impeaching a deed 
 on which the complainant's case depends, he must file a cross-bill, and 
 cannot raise the defence by answer. Eddleston v. Collins, 17 Jur. 331; 
 3DeG. Macn. & Gord. 1. 
 
 Evidence taken on the cross-bill, where it is properly brought, maybe 
 used in the original suit, but where the cross-bill makes a new case, 
 evidence therein cannot be used in the original suit. Draper v. Gordon, 
 4 Sandf Ch. 210; Gray v. Haig, 21 L. J. Ch. 542.] 
 
 1 See Cartwright v. Clark, 4 Mete. 104 ; Nelson v. Dunn, 15 Alab. 
 
 501. 
 
 [A decree upon a cross-bill pending the original suit, is not a final 
 decree, from which an appeal can be taken, under the Act of Congress. 
 Ayres v. Carver, 17 How. 391. J 
 
810 Adams's doctrine op equity. 
 
 the time for amendment has elapsed, it may be rectified 
 by a supplemental bill, or by a bill in the nature of sup- 
 plement, the character of which bills will be considered 
 under the head of imperfections of the third class. 
 
 Imperfections of the third class are those which origi- 
 nate in an interruption or defect subsequent to the insti- 
 tution of the suit, and they are rectified, according to 
 circumstances, by bill of revivor or in the nature of re- 
 vivor, and by bill of supplement or in the nature of sup- 
 plement. They occur where, by reason of some event 
 subsequent to the institution of the suit, there is no per- 
 son before the Court by or against whom it can, either 
 in whole or in part, be prosecuted. They are techni- 
 cally called abatements, and are cured by a bill of revi- 
 vor, or in the nature of revivor. The events which 
 cause such abatements are, the death of any litigant 
 whose interest or liability does not either determine on 
 death or survive to some other litigant, and the mar- 
 riage of a female plaintiff or co-plaintiff. Upon the mar- 
 riage of a female defendant the suit does not 
 "- -^ abate, *but the husband must be named in the 
 subsequent proceedings. And if a female plaintiff mar- 
 ries, pending a suit, and afterwards, before revivor, her 
 husband dies, a bill of revivor becomes unnecessary, her 
 incapacity to prosecute the suit being removed ; but the 
 subsequent proceedings ought to be in the name, and 
 with the description which she has acquired by the mar- 
 riage, (c)^ 
 
 (c) Mitf. 56-60. 
 
 ^ [See on the subjects of Bills of Kevivor, &c., Story Equity PI. § 354, 
 et seq.; Boynton v. Boynton, 1 Foster, 246. By the Rules of the Courts 
 of equity of U. S. No. Ivi, of Penna. liv, it is provided, that where a 
 suit in equity shall become abated by the death of either party, the same 
 
OF BILLS OF REVIVOE. -811 
 
 It will be observed, that in order to cause an abate- 
 ment 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 appearance, the suit is not 
 abated, but non-existent, and must be recommenced by 
 original bill against his representative. (cZ) 
 
 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 interrupt the suit against 
 the remaining parties, although if he be the only plain- 
 tiff, or the only defendant, there will necessarily be 
 an end of litigation. If it survive to another litigant, 
 and the circamstances be such that no claim can be 
 made by or against the representatives of the party 
 dying, there is no abatement : 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 against husband and wife, in right of the wife, and 
 the husband dies under circumstances which admit of 
 
 (d) Crowfoot V. Blander, 9 Sim. 396. 
 
 may be revived by a bill of revivor, or in the nature of revivor, wliich 
 bill may be filed at any time ; and upon suggestion of the facts, a suh- 
 posna shall issue, requiring proper representatives of the other party to 
 show cause why the cause should not be revived ; and if cause be not 
 shown, it is thereupon revived, as of course, after a certain time has 
 elapsed. It is also provided by Rule in Equity U. S. No. Iviii, No. Ivi, 
 Penna. that it shall not be necessary, in a bill of revivor, to set forth any 
 of the statements in the original suit, unless the special circumstances 
 may require it. 
 
 A bill of revivor cannot be properly brought upon a bill for discovery 
 merely, after the answer is put in and discovery made ; for the bill has 
 answered its end. Horsburg v. Baker, 1 Peters S. C. 236; Story Eq. 
 PI. § 371, &c. 
 
812 Adams's doctrine of equity. 
 
 no demand by or against his representatives ; or again, 
 if a bill be filed by several creditors, on behalf of them- 
 selves and all other creditors, and one of the co-plaintiffs 
 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 of a husband %uing in 
 L -I 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 judgment 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 or 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 aider droit a different rule appears to prevail. (/) 
 A decree on a bill of interpleader may terminate the suit 
 as to the plaintiff, though the litigation may continue be- 
 tween the defendants by interpleader, and in that case, 
 the cause may proceed without revivor, notwithstanding 
 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 plaintiff or co- 
 plaintiff, they are stayed altogether ; on the death of a 
 
 (e) Mitf. 59. [Story Eq. PI. § 357, &o.J 
 
 (/) White on Supplt. 168 ; 1 Dan. C. P. 169 ; 2 Dan. C. P. 1418. 
 
 Ig) Mitf. 60. 
 
OF BILLS OF REVIVOR. 813 
 
 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 proceed- 
 ings in the suit, the abatement, and the transmission 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 
 plaintiflF, 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. (7i) 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.(iy 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 
 efiect, that if the validity of the transmission be esta- 
 blished, the same benefit may be had of the former pro- 
 ceedings, (k) 
 
 There was also anciently a practice, where a suit 
 abated after decree signed and enrolled, to revive the 
 decree by subpoena in the nature of a scire facias ; but 
 this practice is now disused, and it is customary to 
 revive, in all cases indiscriminately, by bill.(Z) 
 
 (K) Pruen v. Lunn, 5 Euss. 3 ; Langley v. Fisher, 10 Sim. 349 ; 
 Orders of May, 1845, 61, 62 ; Mitf. 69, 76, 78. 
 (i) Folland v. Lamotte, 10 Sim. 486. 
 (/i) Mitf. 71-97. (0 Mitf. 69, 70. 
 
 1 [See Douglass v. Sherman, 2 Paige, 358 ; Slack y. Walcott, 3 Mason, 
 508 ; Story Eq. PL § 379.] 
 
814 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 war- 
 rant a revivor, except where' they have been decreed 
 out of a fund, or where they have been taxed and cer- 
 tified 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 re- 
 presentative from reviving before decree ; for the plain- 
 tiff 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 to move that he may do so within 
 a limited *time, or that the bill may be dis- 
 L -■ missed. (n) It is otherwise after decree; for 
 then all parties are equally entitled to its benefit ; and 
 on neglect by the plaintiffs, or those standing in their 
 right, a defendant may revive. (o)^ 
 
 The construction of a bill of revivor is similar in prin- 
 ciple to that of an original bill. It states the filing of the 
 original bill, and recapitulates so much of its statements 
 
 (m) Andrews v. Loekwood, 15 Sim. 153. 
 
 (n) 1 Smith, 0. P. 659 ; Lee v. Lee, 1 Hare, 617 ; Orders of May, 
 1845, 63. 
 
 (o) Mitf. 79 ; Upjolin v. Upjohn, 4 Beav. 246. 
 
 ' [See Travis v. Waters, 1 John. Ch. 85.] 
 
 ^ [Story Eq. PI. § 372. As to revivor by one not a party, as in the 
 case of an administration suit, see Williams v. Chard, 5 De G. & Sm. 
 9.] 
 
OF BILLS OF SUPPLEMENT. 815 
 
 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.(g) It then 
 states the original prayer of relief, the proceedings which 
 have taken place, and the event which has caused abate- 
 ment, and prays that the suit may be revived. 
 
 In the case of a pure bill of revivor no answer is re- 
 quisite, 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 
 orginal bill, and the subpoena 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 
 supplemental 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 parties 
 *are affected by any event, other than that which p^Qgl 
 causes the abatement, e. cj., 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 parties to prosecute it. But the par- 
 
 (p) 49th Order of August, 1841 ; Griffith v. Eicketts, 3 Hare, 476. 
 (2) Devaynes v. Morris, 1 M. & C. 213 ; Langley v. Fisher, 10 Sim. 
 845 ; White, 122. 
 
816 ADAMS'S DOCTKINK OF EQUITY. 
 
 ties must incorporate in their bill a supplemental state- 
 ment 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 supplement. And the rules 
 relating to it, so far as its supplemental character is con- 
 cerned, are the same vi^ith 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 sup- 
 plement, or in the nature of supplement.^ 
 
 Where a defect in respect of parties is caused by trans- 
 fer of an interest already before the Court, the trans- 
 ferree may be joined in the suit by supplemental bill ; 
 
 (r) Mitf. 70, 71 ; Bampton v. Birchall, 5 Bea. 330 ; 1 Ph. 568. 
 
 ' [See on this subject, Story Eq. PI. ch. viii, § 333, et seq. A sup- 
 plemental bill is a mere continuation of the original suit, by or against 
 a party having or acquiring the interest of a former party, and forms, 
 together with the original bill and the proceedings under it, but one 
 record. Harrington v. Slade, 22 Barb. (N. Y.) 161. See also Wright 
 V. Meek, 3 Iowa, 472 ; O'Hara v. Shepherd, 3 Maryl. Ch. 306. It is 
 provided by the Kules in Equity, U. S. Cts. No. Ivii, Pennsylvania, No. 
 Iv, that whenever any suit in equity shall become defective from any 
 event happening after the filing of the bill (as, for example, by a change 
 of interest in the parties), or for any other reason, a supplemental bill, 
 or a bill in the nature of a supplemental bill, may be necessary to be 
 filed in the cause, leave to file the same may be granted by any Judge 
 of the Court upon proper cause shown, and due notice to the other party, 
 who must thereupon demur, plead, or answer thereto within a certaio 
 time limited. 
 
 It is also provided by Rules in Eq. U. S. No. Iviii, Penn. No. Ivi, 
 tbat it shall not be necessary in such bill to set forth any of the state- 
 ments of the original suit, unless special circumstances may require it.] 
 
OF BILLS OF SUPPLEMENT. 817 
 
 but the necessity of so joining him depends on the cha- 
 racter of the transfer. 
 
 If the transfer is by act of the party, e. g., on assign- 
 ment or mortgage, the general principle is, that an 
 alienation pendente lite cannot affect the remaining liti- 
 gants. 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 defective, nor the alienee a 
 necessary party. But the alienee himself, if he claitn 
 an interest, may add himself to the cause by supplemen- 
 tal 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 supplemen- r^inq-i 
 tal bill, stating the original bill and proceedings, 
 and 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, ac- 
 quiring his interest pendente lite, is bound by the pro- 
 ceedings in the suit, and depositions taken after the 
 assignment, and before he became a party, may be used 
 agaihst 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 aliena- 
 tion pendente lite, does not apply ; but the suit becomes 
 defective for want of the assignees, (m)^ If, therefore, 
 
 (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 ; [and see Sedgwick v. Cleve- 
 land, 7 Paige, 287.] (0 Mitf. 73, 74. 
 
 (a) Hitchens v. Congreve, 4 Sim. 420 ; Lee v. Lee, 1 Hare, 621, 
 
 ' [See on these distinctions, Sedgwick v. Cleveland, 7 Paige, 290, 
 accordJ] 
 
 52 
 
818 ADAMS'S DOCTRINE OF EQUITY. 
 
 the bankrupt is a defendant, the plaintiflf must either 
 dismiss his suit, and go in under the bankruptcy, or 
 must add the assignees by supplemental bill, praying 
 the same relief against them as might have been had 
 against the bankrupt ;(«) and if the relief originally 
 asked were payment of money, he should further pray 
 for liberty to prove against the estate. (z«) If the bank- 
 rupt 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, (a;) If the plaintiff be the party 
 becoming bankrupt, he is placed under an incapacity 
 (permanent or temporary as the case may be) of prose- 
 cuting the suit. And unless his assignees file a supple- 
 mental bill, and so take proceedings to sustain the ori- 
 ginal 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 supplemental bill 
 be filed. (?/) 
 
 *The doctrine as to alienation by act of law is 
 L -^ also applicable where the interest of a 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 adminis- 
 trator becomes entitled upon the determination of an 
 
 (u) Montelth v! Taylor, 9 Ves. 615. 
 
 (lo) Ex parte Thompson, 2 M. D. & D. 761 ; Thompson v. Derham, 1 
 Hare, 358. 
 
 (x) Philips V. Clark, 7 Sim. 231. 
 
 ly] 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. 819 
 
 administration durante minoricetate, or pendente lite, and 
 in such cases the suit may be added to and continued by 
 supplemental bill.(z) The same rule was formerly ap- 
 plicable on the death of the assignees of a bankrupt or 
 insolvent ; but it is now enacted, that where such as- 
 signees 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 represen- 
 tative of a class, e. g., of creditors or legatees, a similar 
 principle is applied after decree. The plaintiff, 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 therefore if an abatement 
 then occurs, and the personal representative declines to 
 revive, it is almost a matter of course to permit any 
 other member of the class to file a supplemental bill.(&) 
 
 When a defect in respect of parties is caused by the 
 rise of a new interest, it cannot be remedied by a sup- 
 plemental bill, but a bill must be filed in the nature of a 
 supplement, restating the case against the new party, 
 
 (2) Mitf. 64. 
 
 (a) 6 Geo. 4, c. 16, s. 67 ; 7 Geo. 4, c. 57, s. 26; Bainbrigge v. 
 Blair, Younge, 386 ; Man v. Kicketts, 7 Beav. 484. 
 
 (J) Houlditch V. Donegall, 1 S. & S. 491 ; Dixon v. Wyatt, 4 Mad. 
 392; 2 Dan. C. P. 1109. 
 
 ^ [The propriety of the distinction as to the character of bill to be 
 filed in the case of the determination of the interest of a plaintifiF suing 
 in auter Uroit, and of the determination of that of a plaintiff suing in 
 his own right, which is in effect incorporated in the text, from Lord 
 Redesdale's Equity Pleading, is doubted by Mr. Justice Story. He 
 considers that in both cases the bill should be an original in the nature 
 of a supplemental bill, for it brings forward, in either case, new interests 
 by new parties. Story, Eq. PI. § 340, in note.] 
 
820 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 former litigant, and has not 
 been previously represented in the suit, so that he can- 
 not 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 class, is that of an ecclesiastical 
 L J *person succeeding 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 sup- 
 plement. On such a bill a Jiew 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 supplement 
 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, notwithstanding the general doc- 
 trine as to parties, the remainderman need not be before 
 the Court until his estate falls into possession. When 
 that event occurs, he must be added to the suit. The 
 bill for this purpose is in strictness original, in the na- 
 ture of supplement, because the remainderman makes 
 
 (c) Mitf. 73 ; Llojd v. Johnes, 9 Ves. 54, 55; Attorney-Greneral v. 
 Foster, 2 Hare, 81 ; 13 Sim. 282. 
 
OF BILLS OF SUPPLEMENT. 821 
 
 title under no previous litigant. But in respect of the 
 rule enabling the tenant in tail to represent the inheri- 
 tance, it is so far treated as supplemental that the remain- 
 derman will be bound by the previous proceedings, unless 
 he can establish any special distinction between his own 
 case and his predecessors. (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 presumed that the L "'J 
 Court, in suffering the suit to proceed in its previous 
 form, implies that such tenant in tail, when brought be- 
 fore it, shall be bound by the previous proceedings, (e) 
 
 The frame of an original bill in nature of supplement, 
 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 defen- 
 dant, as if he had been originally a party to the suit. 
 But it is subject to the distinction, that as the proceed- 
 ings 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. 
 This may be done either by restating the whole case in 
 its original form, and then stating that the original bill 
 was filed containing statements to that effect, or by 
 stating the contents of the original bill, as in an ordi- 
 nary case of supplement, coupled with an averment of 
 their correctness. (/) 
 
 (d) Mitf. 63, 72 ; Lloyd v. Johnes, 9 Ves. 37. 
 
 (e) Giffard v. Hort, 1 Sch. & L. 408 ; Lloyd v. Johnes, 9 Ves. 59. 
 (/) Attorney-General v. Foster, 2 Hare, 81 ; Lloyd v. Johnes, 9 
 
 Ves. 37. 
 
822 ADAMS'S DOCTRINE OF EQUITY. 
 
 Where a necessary party has been omitted at the com- 
 mencement of the suit, but the regular time for amend- 
 ment has been allowed to pass, he may in like manner 
 be added to the suit by a bill, generally termed supple- 
 mental, but which would, perhaps, be more accurately 
 called original in the nature of supplement, (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 war- 
 rant its introduction, the new matter must be supple- 
 mental to the old.^ If, therefore, it is meant to show a 
 new title in the plaintiff, it is inadmissible ; e. g., where 
 a party having filed his bill as heir-at-law, afterwards, on 
 his heirship being disproved, purchased a title from his 
 devisee ; for the *plaintiflf must stand or fall by 
 '- -■ such title as he had when his bill was filed. (7i) 
 If, again, it be merely new evidence of the original 
 equity, it does not appear necessary to have a supple- 
 
 (gr) Mitf. 61 ; Jenkins v. Cross, 15 Sim. 76 : see [O'Hara v. Shep. 
 herd, 3 Maryl. Ch. 306.] 
 
 (h) 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 : [see Wright v. Ternon, 
 1 Drewry, 68.] 
 
 ^ [So, a complainant who has dismissed the bill against a defendant 
 who had appeared, if other of the defendants object that he i? a neces- 
 sary party, is entitled to file a supplemental bill to bring him again before 
 the Court. Wellesley v. Wellesley, 17 Sim. 59.] 
 
 ^ [A new title, or new interest, may be set up by a supplemental bill, 
 where the title relied upon in an original bill is sufficient to entitle the 
 plaintiff to relief; but a confessedly bad title, thus relied upon, cannot 
 be supported by a title subsequently acquired, which is sought to be in- 
 troduced by way of supplement. Winn v. Albert, 2 Maryl. Ch. 42 ; Bank 
 of Kentucky v. Schuylkill Bank, 1 Pars. Eq. 222.] 
 
OF BILLS OF SUPPLEMENT. 823 
 
 mental bill. 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. (7t;) 
 
 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 supple- 
 mental bill, stating the new matter, and praying the con- 
 sequent 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 statements, they are inadmissible by 
 
 (i) Milner v. Harewood, 17 Ves. 148 ; Adams v. Dowding, 2 Madd. 53. 
 
 (/c) Milner v. Harewood, 17 Ves. 148 ; Usborne v. Baker, 2 Madd. 
 379. 
 
 (I) Pinkus V. Peters, 5 Beav. 253 ; Malcolm v. Scott, 3 Hare, 39 ; 
 Nelson V. Bridges, 2 Beav. 239 ; Catton v. Carlisle, 5 Madd. 427 ; 2 
 Dan. C. P. 1490 ; Mitf. 326. 
 
 ' [See Story Eq. PI. § 333 ; Barringer v. Burke, 21 Alab. 765; Gre- 
 gory V. Valentine, 4 Edw. Ch. 282 ; Hope v. Brinckerhoff, Id. 348.] 
 
824 ADAMS'S DOCTRINE OF EQUITY. 
 
 way of supplement, and the plaintiff must obtain special 
 leave to amend. (m)^ 
 
 *It has also been determined on an analogous 
 L -^ 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 in- 
 terrogatories of the original bill, which were not ori- 
 ginally answered by him. (to) 
 
 The frame of a supplemental bill, whether strictly so 
 termed, or one which is original in the nature of supple- 
 ment, is similar in principle to that of an original 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 recapi- 
 tulation, if the bill be original in the nature of supple- 
 ment, a substantive averment that the statement is cor- 
 rect, (o) It then states the original prayer for relief, the 
 proceedings in the suit, and the supplemental matter ; 
 and concludes, 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 
 
 (m) Mitf. 55, 62 ; Colclough v. Evans, 4 Sim. 76 ; Crompton v. 
 Wombwell, 4 Sim. 628 ; Attorney-General v. Fishmongers' Company, 
 4 M. & C. 9 ; Walford v. Pemberton, 13 Sim. 442 ; Blackburn v. Sta- 
 niland, 15 Sim. 64. 
 
 (ii) Waterford v. Knight, 9 Bligh. N. S. 307 ; 3 CI. & F. 270. 
 
 (o) 49th Order of May, 1841 ; Vigors v. Lord Audley, 9 Sim. 72; 
 ariffith V. Ricketts, 3 Hare, 476. 
 
 ' [But where the subject-matter and title remain the same, it is no 
 objection that a supplemental bill introduces matter which may vary 
 the relief to which the complainant is entitled. Eamey v. Green, 
 18 Alab. 771 ; Bank of Kentucky v. Schuylkill Bank, 1 Pars. Eq. 
 222.] 
 
OF BILLS OF SUPPLEMENT. 825 
 
 which has been already stated in regard to original bills, 
 applies equally to those of a supplemental kind, viz., that 
 all persons must be parties who are interested in the 
 relief sought. The plaintiffs in the original suit are in 
 all cases so interested, and must be joined either as 
 plaintiffs or as defendants. (^) 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, or if the new '- -' 
 party is added in respect of an interest in the plaintiff 
 alone. (5)^ 
 
 (p) 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. 
 
 ' [A supplemental suit grafts into the original suit the new parties 
 brought before the Court by the supplemental suit, and enables the 
 Court to deal with the parties to both records, as if they were all parties 
 to the same record. A defendant to an original suit is not to be made 
 a party to a supplemental suit, on the mere ground of right to question 
 the representative character of the defendant to the supplemental suit ; 
 for his character to sustain that title cannot be tried in a Court of equity. 
 Wilkinson v. Fowkes, 9 Hare, 193. 
 
 The original defendants are necessary parties to a supplemental bill, 
 where the supplemental suit is occasioned by an alteration after the ori- 
 ginal bill is filed, affecting the rights and interests of the original defen- 
 dants as represented on the record ; but they are not necessary parties 
 to a supplemental bill, where there may be a decree upon the supple- 
 mental matter against the new defendants, unless the deci-ee will affect 
 the interests of the original defendants ; nor are they necessary parties 
 
826 Adams's doctrine of equity. 
 
 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 decree, 
 it is not properly matter of supplement, but may be in- 
 troduced 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 eflFect.^ For example, such a bill may be 
 filed where an omission has been made in 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 sub- 
 
 (r) Ilodson V. Ball, 1 Ph. 181. 
 
 where the supplemental bill is brought merely to introduce formal parties. 
 Wilkinson v. Fowkes, 9 Hare, 193. 
 
 When a supplemental bill brings new parties into Court, it is as to 
 them a new suit, and is to be considered as being commenced when 
 the supplemental bill is filed in the office. Morgan v. Morgan, 10 Geo. 
 297. 
 
 A supplemental bill, however, is to be considered as part of the ori- 
 ginal bill; and if upon the whole record the complainant is entitled 
 to relief, it will be decreed him. Cunningham v. Rogers, 14 Alab. 
 147.] 
 
 ' [See on this subject, Story Eq. PI. § 429. A supplemental bill may 
 be filed as well after as before a decree ; and if after, may be either in 
 aid of a decree, that it may be carried into full execution, or that proper 
 directions may be given upon some matters omitted in the original bill, 
 or not put in issue by it, on the defence made to it. O'Hara v. Shep- 
 herd, 3 Maryl. Ch. 306.] 
 
OF BILLS TO EXECUTE A DECREE. 827 
 
 sequent events, and a new decree is necessary to ascer- 
 tain 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 car- 
 ried into execution. (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 the L -I 
 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 con- 
 sidered as imposed on bills of that class, (v) 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 process, it will be assumed, until reversal, to 
 be correct. And even where a decree is required in aid, 
 the same assumption will be generally made. But it is 
 competent for the Court, in respect of the special appli- 
 cation, to examine the decree, and if it be unjust, to re- 
 fuse enforcement, (w)^ 
 
 (s) Mitf. 95. (0 Mitf. 96. 
 
 (b) Mitf. 95 ; 2 Dan. C. P. 1405 ; Oldham v. Eboral, 1 Coop. Sel. 
 Ca. 27. 
 
 (d) Hodson V. Ball, 11 Sim. 456; 1 Ph. 177; Toulmin v. Copland, 
 4 Hare, 41 ; Davis v. Bluck, 6 Beav. 393 ; [O'Hara v. Shepherd, 3 
 Maryl. Ch. 306.] 
 
 (w) Mitf. 96 ; 2 Dan. C. P. 1407 ; Hamilton v. Houghton, 2 Bligh. 
 0. S. 169. 
 
 ' [In certain cases a defendant has the right, after decree, to file a 
 
828 ADAMS'S DOCTRINE OF EQUITY. 
 
 A bill to impeach a decree is either a bill of review, a 
 supplemental bill in the nature of review, an original bill 
 of the same nature, or an original bill on the ground of 
 fraud. There is also another class of bills mentioned 
 hy 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 occar 
 sioned by the Great Rebellion, they are to be considered 
 with much caution, (cc) 
 
 A bill of review is used to procure the reversal of a de- 
 cree after signature and enrolment. It may be brought 
 upon error of law apparent on the decree, or on occurrence 
 of discovery of new matter.^ In the former case the bill 
 may be filed without leave of the Court, but the error 
 
 (x) Mitf. 74 ; 2 Dan. C. P. 1408. 
 
 supplemental bill, to bring new and necessary parties before the Court. 
 Lee V. Lee, 17 Jur. 272 ; affd. 17 Jur. 607.] 
 
 ' [See on this subject, Story Eq. PI. § 404; Riddle's Est. 19 Penn. 
 St. 433; Creed v. Lancaster Bank, 1 Ohio St. N. S. 1; Ducker v. Belt, 
 8 Maryl. Ch. 13 ; U. S. v. Samperyac, 1 Hempstead, 118 ; Sloan v. 
 Whiteman, 6 Indiana, 434 ; Rush v. Bladeira, 14 B. Monr. 212. 
 
 In England it is held that the error in matter of law, for which a bill 
 of review will lie, must be apparent on the face of the decree. In the 
 United States in general, however, decrees are usually, and by the Rules 
 in Equity in the United States Courts, No. Ixxxvi, and in Pennsylvania, 
 No. Ixxviii, necessarily, drawn up without any statement of the facts 
 upon which they are based, and without embodying even the substance 
 of the bill, answer, and other proceedings. Under these circumstances, 
 therefore, the rule is so far modified in this country, that upon the whole 
 record, consisting of the bill, answer, and other pleadings and decree, 
 but not the evidence at large, a bill of review for error apparent maybe 
 founded. Whiting v. Bank of U. S. 13 Peters, S. C. 6 ; Dexter v. 
 Arnold, 5 Mason, 311 ; Webb v. Pell, 3 Paige, 368; Story Eq. PI. § 
 407 ; Riddle's Estate, 19 Penn. St. 433.] 
 
OF BILLS OF REVIEW. 829 
 
 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 apparent on the face of the decree, as in 
 the case of an absolute *decree against an in- 
 fant, (jr) Errors in form only, though apparent ^ -I 
 on the face of the decree, and mere matters of abate- 
 ment, seem not to have been considered sufficient ground 
 for review, (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 pro- 
 duced or used by the applicant at the time when the 
 decree was made ; and showing also that such new mat- 
 ter 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)^ 
 
 {y) Mitf. 84 ; Perry v. Phelips, 17 Ves. 179 ; [Ross v. Prentiss, 4 
 McLean, 106.] 
 
 («) Mitf. 85 ; [Guerry v. Perryman, 12 Geo. 14 ; Dexter v. Arnold, 
 5 Mason, 312.] 
 
 (o) Mitf. 84-87 ; Partridge v. Usborne, 5 Russ. 195 ; Hungate v. 
 Gascoyne, 2 Ph. 25 ; [Ross v. Prentiss, 4 McLean, 106.] 
 
 (6) Hodson v. Ball, 11 Sim. 456 ; 1 Ph. 177 ; Toulmin v. Copland, 
 4 Hare, 41 ; [Simpson v. Watts, 6 Rich. Eq. 364.] 
 
 ' [See on the subject of bills of review for newly discovered matter. 
 Story Eq. PI. § 412. 
 
 A bill of review for new facts or newly discovered facts, must aver 
 that such facts came to the knowledge of the complainant within nine 
 months prior to the filing of his bill. Hitch v. Fenby, 4 Maryl. Ch. 
 190 ; Dexter v. Arnold, 5 Mason, 312 ; Ridgeway v. Toram, 2 Maryl. 
 
830 ADAMS'S DOCTRINE OP EQUITY. 
 
 A bill of review, on new matter discovered, has been 
 permitted even after an affirmance of the decree in Par- 
 liament ; but it may be doubted whether a bill of re- 
 view on error apparent can be brought after such affirm- 
 ance.i 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 decree, which has been 
 signed and enrolled, a bill of review cannot be brought -^ 
 and after a demurrer to a bill of review has been al- 
 
 Ch. 303 ; Simpson v. Watts, 6 Rich. Eq. 36-1: ; Stevens v. Dewey, 1 
 Williams (Vt.) 638. All the parties to the original decree, or their re- 
 presentatives, must be parties. Friley v. Hendricks, 27 Miss. 412. 
 
 So, such a bill cannot be maintained where the newly discovered evi- 
 dence, upon which the bill purports to be founded, goes to impeach the 
 character of witnesses examined in the original suit. Nor can it be 
 maintained where the newly discovered evidence is merely cumulative, 
 and relates to a collateral fact in the issue, not of itself, if admitted, by 
 any means decisive or controlling ; such as the question of adequacy of 
 price, when the main question was, whether a deed was a deed of sale 
 or a mortgage. Southard v. Eussell, 16 How. U. S. 547. The new 
 matter must also be such as the party could not by the use of reasonable 
 diligence have known. Story Eq. PI. § 414 ; Dexter v. Arnold, 5 Mass. 
 312 ; Livingston v. Hubbs, 3 Johns. Ch. 124 ; Ridgeway v. Toram, 2 
 Maryl. Ch. 303.] 
 
 ^ [Where a case is decided by an Appellate Court, ^nd a mandate is 
 sent down to the Court below to carry out the decree, a bill of review 
 will not lie in the Court below, to correct errors of law alleged on the 
 face of the decree. Resort must be had to the Appellate Court. 
 Southard v. Russell, 16 How. U. S. 547. 
 
 Nor will a bill of review be founded on newly discovered evidence, 
 after the publication or decree below, where a decision has taken place 
 on an appeal, unless the right is reserved in the decree of the Appellate 
 Court, or permission be given on an application to that Court directly 
 for the purpose. Southard v. Russell, ut supra.J 
 
 ^ [As to the time within which a bill of review must be brought, see 
 U. S. V. Samperyao, 1 Hemp. 118 ; Conter v. Pratt, 9 Maryl. 67 ; Creath 
 V. Smith, 20 Missouri, 113.] 
 
OF BILLS OF REVIEW. 831 
 
 lowed, a new bill of review on the same ground cannot 
 be brought, (c) 
 
 It is a rule of the Court that the bringing of a bill of 
 review shall not prevent the execution of the decree im- 
 peached, and that a party shall not be allowed, except 
 under very *special circumstances, to file or pro- 
 secute such a bill, unless he performs at the pro- L ^ J 
 per time all that the decree commands. (cZ)! 
 
 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 re- 
 view conceives himself aggrieved by it, and the ground 
 of law or the new matter upon which he seeks to im- 
 peach 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 
 
 (c) Mitf. 88. (t?) Ibid.; Partridge v. Usborne, 5 Kuss. 195. 
 
 ' [The objection that the general decree has not been obeyed or per- 
 formed, cannot be raised by a general demurrer to a bill of review, filed 
 for the purpose of annulling or reversing it. The objection can go only 
 to the propriety of filing the bill, and not to the equity of it when filed. 
 Cochran v. Risen, 20 Alab. 463- 
 
 In Alabama, the Chancellor has the power, under the statute of that 
 State, to direct the decree on the original bill to be stayed in such man- 
 ner as he may deem advisable ; or he may allow the bill of review to be 
 filed, and let the complainant proceed with the execution of the original 
 decree. Cochran v. Eison, ut supr.J 
 
 ^ [See Story's Eq. PI. § 420. 
 
 It is not suflScient in a bill of review to refer to a record of the de- 
 cree sought to be reviewed, as a paper on file in the Court, with a re- 
 quest that it may be made part of the bill. It must be fully set forth 
 in the bill, or appended as an exhibit. Groce v. Field, 13 Geo. 24. 
 All parties to the original decree must be made parties to the bill of re- 
 view. Sturges V. Longworth, 1 Ohio St. N. S. 54 ; but see Basye v. 
 Beard, 12 B. Monr. 581. 
 
832 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 reversed 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 re- 
 view 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 has happened which requires it, and if any 
 person not a party to the original suit becomes inte- 
 rested 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 enrolment, 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.' The manner of pro- 
 
 r*<il Q1 c®^"^^ ^^ ^'•1*^'^ ^ b^l^ *^^ ^° petition for a rehear- 
 ing 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 
 
 (e) Mitf. 88-90. 
 
 Where a demurrer to a bill of review for error or matter of law, is 
 overruled, the decree is reversed, and the errors allowed. Guerry v. 
 Ferryman, 12 Geo. 14. J 
 
 ' [O'Hara v. Shepherd, 3 Maryl. Ch. 306 ; Eidgeway v. Toram, 2 
 Maryl. Ch. 303 ; Cochran v. Bison, 20 Alab. 463.] 
 
OF BILLS OF REVIEW. 833 
 
 of praying that the former decree may be reviewed and 
 reversed, it prays that the cause may be heard with re- 
 spect to the new matter, at the same time that it is re- 
 heard upon the original bill, and that the plaintiflf may 
 have such relief as the nature of the case made by the 
 supplemental bill requires. (/) If the ground of "com- 
 plaint be error apparent, it may be corrected on a re- ' 
 hearing alone, and a supplemental bill is unnecessary. 
 
 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 remainder- 
 man in tail, or in fee, cannot defeat the proceedings, 
 except by a bill showing the error in the decree, the 
 incompetency in the tenant for life to sustain the suit, 
 and the accrual of his own interest, and thereupon pray- 
 ing that the proceedings in the original cause may be 
 reviewed, and that for that purpose the other party ma.y 
 appear to and answer 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 plaintiff himself, or against any person 
 under whom he claims, may be filed without the leave 
 of the Court, (gr) 
 
 A bill to impeach a decree for fraud used in obtaining 
 it sufficiently explains its own character.^ It may be 
 filed without the leave of the Court, .because the alleged 
 
 (/) Perry v. Phelips, 17 Ves. 178 ; Mitf. 90, 91. (<;) Mitf. 92. 
 
 ' [A person not a party to the suit, and aggrieved by a- decree made in 
 his absence, and afterwards served on him, so as to attempt to bind him 
 in subsequent proceedings, must move, on notice, for leave to file a bill 
 in the nature of a bill of review. Kidd v. Cheyne, 18 Jur. 348.] 
 
 ' [See Story Eq. PL § 426 ; Guerry v. Durham, 11 Geo. 9 ; De 
 Louis V. Meek, 2 Greene (la.) 55 ; Hitch v. Fenby, 4 Maryl. Ch. 190,] 
 
 53 
 
834 ADAMS'S DOCTRINE OF EQUITY. 
 
 fraud is the principal point in issue, and must be esta- 
 blished by proof before the propriety of the decree can 
 be investigated. And where a decree has been so ob- 
 tained, the Court will restore the parties to their former 
 situation, whatever their rights may be. Besides cases 
 of direct fraud in obtaining a decree, it seems to have 
 r*l9m ^^^" considered that where a *decree has been 
 made against a trustee, without discovering the 
 trust, or bringing the cestui que trust before the Court, 
 or against a former owner of property without discover- 
 ing a subsequent conveyance or incumbrance, or in favor 
 of or against an heir, without discovering a devise of the 
 subject-matter of the suit, the concealment 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 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 
 obtained, 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 ob- 
 taining an improper decree. (7i)' 
 
 (K) Mitf. 93, 94. 
 
 ^ [Where a demurrer to a bill to set aside a decree which has been 
 obtained by fraud, is overruled, this does not vacate or reverse the ori- 
 ginal decree, but the complainant must proceed to establish his case. 
 Guerry v. Ferryman, 12 Geo. 14. J 
 
INDEX. 
 
 THE PAGES BEFERBED TO ABB THOSE BETWEEN BBACKETS [ ]. 
 
 ABANDON, 
 contract, notice by aggrieved party to, 
 
 ABATEMENT, 
 
 of suit, 403-406, 410, 417 
 ABROAD, 
 
 commission to examine witnesses, 23— 
 25 
 
 service of process, 323-327 
 
 defendant domiciled, 360 
 
 plaintiff, 360 
 
 See Ne 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, 
 
 of trusts, 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, 1 1 
 
 fraudulent, discovery as to, 5 
 
 partnership, jurisdiction as to, 239, 240, 
 241 
 
 ACCOVNT— continued. 
 
 in suit for ascertainment of boundaries, 
 
 237 
 in suit for cancellation, 191 
 
 infringement of patent, 212, 
 
 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 Payment into Court. 
 ACCUMULATION, 
 trusts for, 43, 64 
 of pin-money, 46 
 presumption of, 104 
 ACKNOWLEDGMENT 
 
 of trusts or confidence, 28 
 ACQUIESCENCE 
 
 of cestui que trust, in breach of trust,. 
 
 62 
 of purchaser, eflect 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 Limita- 
 tions, 
 
836 
 
 INDEX. 
 
 ACTS, 
 
 contract for performance of, 92 
 specific covenant for doing, 109 
 
 See Ownership. 
 of Parliament, printing of, 214 
 ADMINISTRATION, 
 grant of, litigated, 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, 19ft, 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 seg., 350 
 
 as to money in hands of defendant, 
 
 350, 351 
 rendering evidence urmecessary, 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, by 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 
 
 AFFIDAVIT— conimacrf. 
 
 to stay separate proceed- 
 ings, 259 
 to amend answer, 346 
 to obtain interlocutory orders, 
 
 348, 355, 356 
 to grant injunction, 355, 356 
 to extend injunction, 195 
 to dissolve injunction, 355,356 
 for leave to file bill of re- 
 view, 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 principle, for account, 
 
 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 principal's 
 
 property, 222 
 malting 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 Misrepresentation. 
 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 
 
INDEX. 
 
 837 
 
 ALLEGATION 
 in bill, 306 
 
 See Statement ; Charges. 
 ALLOWANCE 
 
 of exceptions, 386, 387 
 ALTERATION. See Instrument ; Con- 
 version; Dea'ee. 
 AMENDMENT 
 of bill, 304, 342, 346, 
 right as to, 346 
 
 when time for, passed, 412,413 
 leave for, 380 
 special leave for, 413 
 after allowance of plea, 342 
 at hearing, liberty 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 mnst, 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 insufHoiency of, 14 
 further, 346 
 
 motion or petition on, 31 8 
 See Discovery. 
 ANTICIPATION, 
 clause prohibiting, 43, 44 
 language to impose fetter on, 45 
 APPEAL 
 generally, 388, 396-401 
 
 APPEAL — continued. 
 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 n&w trustees under power, 38 
 
 efiect of bin 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, 1 8 
 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 
 plaintifl^, death of, 410 
 See Bankrupt ; Bankruptcy ; Chose 
 in Action. 
 
838 
 
 INDEX. 
 
 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 
 
 of trust or confidence, 28, 53 
 
 fraudulent, 151 
 
 injunction against, 144 
 
 See Conveyance; Grant; Term; 
 Elegit. 
 ASSIGNOR 
 
 of chose in action, 317 
 ASSISTANCE, 
 
 writ of, 393, 394 
 ASSUMPSIT, 
 
 action of, 224 
 ATTACHMENT, 
 
 writ of, 324, 394 
 
 with proclamations, 324 
 
 abolished, 
 328,393 
 
 when sequestration substituted for, 
 326 
 
 in default of appearance, 32S 
 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, 1 84 
 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, sherifi' to seize, 1 3 1 
 
 distringas on, as to stock, 357, 358 
 
 restraining order on, as to transfer or 
 dividend, 35S 
 BANKRUPT, 
 
 mortgagor becoming, 121 
 
 plaintiff 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, &o., avoided by, 146, 148 
 
 assignees in, injunction to restrain, 198 
 
 petition in, 349 
 
 set-off in, 223 
 
 of partner, 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; Charitable. 
 BIBLE, 
 
 right to printing of, 214 
 
INDEX. 
 
 839 
 
 BILL, 
 
 generally, 30 1-3 U 
 
 statement In, 302, 303 
 
 charges in, 302, 303 
 
 interrogatories in, 302 
 
 prayer of relief, 302 
 
 process, 302 
 
 for administration, 2S7 
 
 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 aid of other proceed- 
 ings, 20, 21, 22, 197 
 
 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 de- 
 cree, 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 proceed 
 at law, 378 
 
 imperfections of, 402, 403 
 
 See Copy of Bill ; Cross-Bill ; In- 
 junction ; Interpleader ; Original 
 Bill; Review; Revivor; Supple- 
 ment. 
 BILL OF EXCHANGE, 
 
 sheriflfto 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, parties 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 
 aflecting charity property, Ro- 
 milly'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, 
 
 good will of, SO, 81 
 damaging, injunction against, 216 
 CANCELLATION, 175-193 
 CAPIAS AD SATISFACIENDUM, 
 
 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, 402 
 order to advance, 401 
 day to show, see Infant, 
 Sea Confirmation. 
 
840 
 
 INDEX. 
 
 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 ; Heconversion. 
 CHAMPERTY, 
 
 discovery as to, 3 
 CHANGE 
 
 of property subject to a trust, 142 
 See Conversion. 
 CHARGE, 
 
 equitable, by deposit of deeds, 125 
 lien available by way of, 127 
 judgment, under 1 & 2 Vict. c. 110, 
 
 130, 131 
 creation of, on partition, 231 
 
 See Contribution ; Discharge ; Ex- 
 oneration; Incumbrance; Marshal- 
 ling. 
 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 
 
 ey pres application of, 69, 70, 7 1 
 bequests, no marshalling in favor 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. 
 
 CHOSES IN 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 maintenance 
 of, 286, 296 
 CLIENT, 
 
 communications of, with advisers, dis- 
 covery as to, 6 
 
 attorney taking benefit from, 184 
 CO-DEFENDANTS, 
 
 claims between, 313, 402 
 
 litigation between, 402 
 
 cross relief between, 402 
 COLLATERAL SECURITY, 
 
 given by mortgagor, 119 
 COLLEGES, 
 
 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, 380 
 
 to examine witnesses abroad, 23-25 
 
 de lunatioo inquirendo, 292 
 
 under great seal, inquisitions on, tran- 
 scripts 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 
 
INDEX. 
 
 841 
 
 COMMITTEE— ro«(TO«cd. 
 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 WITNESSES, 364 
 COMPLETION. See Specific Perform- 
 ance* 
 COMPOSITION, 
 with creditors, 179, ISO 
 real, 236 
 COMPROMISE, 
 made under mistake, ISS 
 of administration suit, 259 
 reference to Master as to, 379 
 CONCEALED OR UNDISCLOSED 
 
 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; Return. 
 CONFLICTING CLAIMS, 
 
 priority between, 145 
 CONFUSION 
 
 of boundaries, 237, 238 
 CONSIDERATION, 
 valuable, necessary for specific perfor- 
 mance, 78, 92, 98 
 benefit conferred as, 72, 92 
 service rendered as, 79 
 mistakenly supposed to exist, 188 
 conveyance without, 146 
 
 See Fraud; Imposition; Merito- 
 rious; Purchase. 
 CONSIGNEE. See West Indian Mort- 
 gage- 
 
 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 
 
 by defendant, to answer, 5 
 
 notice of prior, 152 
 
 specific performance of, equity to com- 
 pel, 77 
 
 where fulfilment of, impossible, 80, 
 81, 89 
 
 conversion, doctrine of, as to, 140 
 See Specific Performance. 
 CONTRIBUTION, 
 
 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 
 
842 
 
 INDEX. 
 
 CONVEYANCE— cojiimucd. 
 
 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, 111 
 
 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 
 
 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, parties to, 20, 314 
 See Municipal. 
 CORRECTION, 
 
 of written instrument, 168-173 
 CORRUPTION, 
 
 award procured by, 193 
 COSTS, 
 
 principle as to, in different 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 
 
 COSTS— continued. 
 
 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, 
 392 
 for discovery, and re- 
 lief, 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 confesso, 
 
 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 
 to petition of rehearing or 
 
 appeal, 399 
 to printed case, 399 
 certifioate 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. 
 
INDEX. 
 
 84^ 
 
 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 credi- 
 tor, 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, Exe- 
 cution, Marshalling, Principal, 
 Sureties. 
 CRIME, 
 discovery as to, from defendant, 3, 4, 
 343 
 CROSS 
 bill, generally, 402-403 
 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, 
 rightsof, 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 ef, 214 
 debts due to, priority of, 252 
 
 CROWN— continued. 
 conversion in favor of, 139 
 suit on behalf of, 301 
 suit as to rights of, 313, 314 
 title in, traverse of, 293 
 charitable fund, when at disposal oj 
 
 67, 68, 73 
 license of, for quitting kingdom, 56( 
 See Mien ; Mtainder. 
 CUMULATIVE. See Gift; Legacy. 
 CURATOR, 
 
 of estate of lunatic, 296 
 CUSTODY, 
 
 of infants, 280, 281 
 
 statute as to, 283, 284 
 illegal, of infant, 281 
 defendants in, 327 
 instrument in defendant's, 25 
 See Infant. 
 CYPRES, 67, 68 
 
 application of trust funds, 68, 69 
 how effected, 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 CompeTisation ; Destructive; Tres- 
 pass; 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 
 ldiot,or lunatic, 298 
 mortgagor, 120,' 
 partner, 241, 246 
 plaintiff in interpleader suit, 206 
 vendor or vendee, 140 
 DE BENE ESSE. See Examination. 
 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 
 
844 
 
 INDEX. 
 
 D'EBTS— continued. 
 
 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; Princi- 
 pal ; Set off ; Simple Contract 
 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 
 in 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 
 in original suit, use of, in supplemental, 
 
 411 
 in supplemental suit, 415 
 for charging property, 1 30 
 of injunction, 194 
 
 for dissolution of partnership, 242, 243 
 for delivering up an estate, 393 
 for payment of money, 393 
 original, 3S7, 388 
 on further directions, 387 
 
 in administration suit, 262 
 minutes of, 396 
 passed and entered, 396 
 signed and enrolled, 417 
 when in fieri, 396 
 
 DECREE— continued. 
 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 jurisdiction, 
 
 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 lay, 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 
 
 DEFEASIBLE, 
 
 interest being, 152, 153 
 
 DEFECTS, 
 substantial, 90 
 
 compensation for, 85, 89, 90, 9] 
 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 
 
INDEX. 
 
 845 
 
 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, S 
 
 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 ansvcer contempt, 329 
 . third answer of, insufficient, 346 
 
 litigation between, 402 
 
 female, marriage of, 403, 404 
 
 infant coming of age, discovery irom, 
 414 
 See Answer; Discovery; Insuffi- 
 ciency. 
 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, use of, in supplemental, 
 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 
 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, 91 
 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 reconveyance, 
 
 116 
 of vendee, 1 40 
 of vendor, 141 
 title of, 249 
 
 how far trustees for creditors, 251 
 and heirs, contributions, &c., between, 
 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 
 
 stated 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 
 from defendant on his coming of age, 
 
 414 
 mere want of, not ground for relief, 
 
 221 
 subsequent ground for injunction, 197 
 See Account; Copyright ; Documents: 
 Patent. 
 DISMISSAL 
 
 of bill for administration, 259 
 
 if plaintiff omit to file replication, 347 
 
 for want of prosecution, 373 
 
 on default of plaintiff, 373 
 
846 
 
 INDEX. 
 
 DISMISSAL— Con(m«crf. 
 
 if plaintiff neglect to revive, 406, 407 
 when plaintiff bankrupt, 409 
 See Bill. 
 DISSEISIN 
 
 of trustee, 37 
 DISSOLUTION 
 
 of partnership by death or bankruptcy, 
 
 246 
 of partnership, suit for, 240, 322 
 what will cause or warrant, 241, 242 
 DISTRIBUTION 
 of assets, 261 
 bill for, 263 
 among creditors, 250 
 
 partners, 241, 245 
 See Statute of Distribtiiions. 
 DISTRINGAS, 
 process by, 326 
 as to stock, 357 
 DIVIDENDS, 
 
 on stock of infant, 286 
 lunatic, 296 
 See Distringas ; Bestraining 
 Order ; Stock. 
 DOCKET 
 
 of judgments, 155 
 system abolished, 155 
 See Judgment. 
 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 sequestra- 
 tors, 395 
 See Inspection ; Production. 
 DONEE, 
 
 of power, contract by, 99 
 quasi owner, 99 
 DOWER, 
 
 at common law, what, 51 
 as to equitable estates, 51, 152, 153 
 assignment of, 233, 234 
 notice of, effect of, 152, 153 
 DOWER ACT, 51, 94, 153, 235 
 DRAMATIC COMPOSITIONS, 
 protection of, 214 
 
 DURANTE MINORE ^TATE, 
 
 administration, 410 
 DURESS, 
 
 contracts by persons under, 182 
 See Fraud. 
 DOTY, 
 
 moral, performance of, a consideration, 
 97, 101 
 EQUITABLE 
 
 assets, 232 
 
 bail, writ of ne exeat operates in na- 
 ture of, 360 
 
 charge, 125 
 
 conversion, 135-145, 245 
 See Conversion. 
 
 debt, ground for writ of ne exeat, 3601 
 
 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. o. 11, 131, 159' 
 
 estate by assignment of, 159 
 ENFORCEMENT 
 
 of decree, 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. 
 
INDEX. 
 
 847 
 
 'EQUITY— coniinued. 
 
 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, 2S5 
 
 for winding up partnersliip, 239 
 
 of interpleader, essentials to, 203 
 
 of injunction against tort, 207 
 
 injunctive, incidents of, 217-219 . 
 
 tohave legal impediments removed,249 
 
 of contribution, 266, 267 
 
 of exoneration, 266, 269 
 
 ofmarshalling, 266, 271 
 
 of election, 92, ei seg. 
 
 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, 206 
 
 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, ei 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 
 
 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 between, 
 
 50 
 equitable as to dower, 51 
 
 See Dower ; legal Estate ; Personal 
 Estate ; Possession ; Seal 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 Mas- 
 ter 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 Master, 
 
 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 
 
848 
 
 INDEX. 
 
 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, deoree for, 394, 395 
 
 by Master, instead of 
 party in contempt, 
 395 
 See Re-execution. 
 
 of decree, bill for, 415, 416 
 
 bill of review shall not pre- 
 vent, 417 
 EXECUTORS, 
 
 powers of, 251 
 
 discovery by, as to accounts, 1 1 
 
 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, 351, 352 
 See Representatives. 
 EXECUTORY 
 
 trust, what, 40, 41, 42 
 
 gift, 42 
 EXONERATION 
 
 generally, 269-271 
 
 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, 192 
 
 uncertainty as to, 188 
 
 known, law mistaken, 189 
 
 conclusion of, answer to, 344 
 See Issue; Master. 
 FAILURE 
 
 of trusts, 33, 69 
 
 FALSE REPRESENTATION, 150 
 
 See Misled. 
 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. 1 1 0, 
 and 2 Vict. c. 11, 131, 395 
 FINAL DECREE, 375, 378 
 FINDING 
 
 of Master, statement of, in report, 
 384 
 FINES, 
 
 legal title destroyed by, 153 
 
 contribution to discharge, 270 
 FIXTURES. See Waste. . 
 FORECLOSURE, 
 
 suits 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 ; Recognitance ; Sta- 
 tute. 
 FOREIGN 
 
 Court, proceedings in, 19, 198 
 
 Sovereign, party to suit, 313 
 
INDEX. 
 
 849 
 
 FORFEITURE, 
 
 discovery as to, 2, 3, 5, 343 
 
 of mortgage, 112 
 
 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 
 
 stated 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 
 
 precUiding copyright, 215 
 
 to discover secret, 216 
 
 set-off in cases of, 223 
 
 alleged in bill, reason against demur- 
 ring, 336 
 
 by solicitor, notice of, 151 
 
 concealment, evidence of, 151 
 
 evidence of, not fraud, 158 
 
 costs in cases of, 392 
 
 See Sankruptcy ; 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; Average. 
 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 
 GENERAL OBJECTS, 
 
 trust for, 65 
 GIFT, 
 
 instrument of, 79, SO 
 
 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 
 
 54 
 
850 
 
 INDEX. 
 
 HEARING — continued. 
 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 derisavit vel non, 
 
 249, 377 
 expectant, bargain with, 186, 191 
 presumptive, of lunatic, 294, 295 
 of mortgagee in respect of reconvey- 
 ance, 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 establish agents, 249 
 suit against parties to, 319 
 cost 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 ac- 
 tion, 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 instrument, 166 
 ILLUSORY APPOINTMENT, 185, 
 
 IMBECILITY, 
 
 consequence of, 183 
 IMMORALITY, 
 
 precluding copyright, 316 
 IMPERFECTION 
 
 of bill, 402, et seg. 
 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 suit 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 
 
INDEX. 
 
 851 
 
 INFANT — continued. 
 estate of, receiver appointed, 353 
 property of, undury charged, 142, 143 
 day for, to show cause, 232 
 trustee being, 37, 38 
 heir of mortgagee being, 1 16 
 mortgagor, sale directed, 120, 121 
 admissions by, 363 
 defendant, answer by, 8 
 
 coming of age, discovery 
 from, 414 
 decree against, 416 
 improper decree made against, 420 
 See Custody; 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, 195,198 
 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 admin- 
 istration 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 
 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 cus- 
 tody, 25 
 See Cancellation; Concealment; Cor- 
 rection; Destruction; Execution; 
 Loss; Missing; Negotiable; Re-exe- 
 cution; 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 
 
852 
 
 INDEX. 
 
 WTEREST— continued. 
 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 concerning lands, tenements, or 
 
 hereditaments, 85 
 concealed or undisclosed, 151 
 limited, owner of, 89, 90, 91 
 defeasible and indefeasible, 153, 153 
 cessation of, 5 
 of parties to suit, 314 
 
 rise of, 410-411 
 transfer of, 408-410 
 examined as witnes- 
 ses, 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, Motion ; Order ; Petition. 
 INTERPLEADER, 
 statute of, 203 
 suit of, revivor of, 405 
 action directed on, 206 
 See Bill. 
 INTERPRETATION 
 
 of declaration of trusts, 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. 
 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 and 2 Vict. u. 110, 
 122, 129-134, 148 
 
 charge on stock and shares, 133 
 
 debts, priority of, 252 
 
 debt, payment of, 261 
 
 person bound by, 123 
 
 decrees, &o., having effect of, 130, 131 
 
 lien by, equity under, 149 
 
 creditor must obtain, 148 
 
 against owner of equitable interest, 
 152 
 
 memorial of, 1 54 
 
 undooteted, 153, 155 
 
 when take effect, 145 
 
 or final decree, not notice, 157 
 
 docketing or registration of, not notice, 
 157 
 
 at law, when Chancery will interpose 
 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. c. 110, 130, 
 131, 132, 148 
 
 taking person of debtor in execution 
 under, 133, 134 
 See Search, 
 
INDEX. 
 
 853 
 
 JURISDICTION 
 of Courts of law and equity, distinction 
 
 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 whether 
 
 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 
 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 
 Regno. 
 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, 141, 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 ; Case. 
 LEADING INTERROGATORIES, 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 
 
 LEASE — continued. 
 
 renewal of, by trustee or executor, 59, 60 
 of infant or feme oovert,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 
 trust for payment of, 156 
 payment of, 261 
 recovery of, 250 
 
 charge on several kinds of assets, 274 
 construed a provision, 101 
 as substitiited 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, &o., 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 
 
854 
 
 INDEX, 
 
 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 sums as, 108 
 LIS PENDENS, 
 
 privileged communications, 6, 7 
 
 notice by, 157 
 
 not notice of unregistered incumbrance, 
 154 
 
 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, 56 
 LORD 
 
 of parliament, a defendant, 311 
 See House of Lords ; Manor. 
 LOSS, 
 
 compensation for, 91 
 
 of bond, excusing profert, 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 
 
 LUNATIC— coBimued. 
 
 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 
 allowed 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, LORD OF, 
 bill against, 65 
 
 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. Sec Feme Co- 
 vert. 
 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 to lunatic, 294 
 for reinvestigation, 304 
 as to suflSciency of an- 
 swer, 345 
 jurisdiction of, in conduct of suits, 380 
 report of, 384-387 
 
INDEX. 
 
 855 
 
 MASTER— continued. 
 
 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 IMPERFECT 
 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. See Infancy. 
 AONUTES 
 
 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 demur- 
 ring, 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 
 MISREPRESEN TATION 
 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 
 
 MISTAKE— coKimiied 
 of law or of fecf, 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, 1 10-1 34 
 by husband and wife, 173 
 of an equity, 123 
 debt, payment of, 251 
 for satisfaction of debts, 253 
 devise subject to, 264 
 contribution to discharge, 270 
 moneys out on, trust of, 28 
 interest on, where in nature of penalty, 
 
 108, 109 
 property in, as assets, 264, 265, 274 
 estate in, in an infant, 285 
 See Tacking, 
 MORTGAGEE, 
 
 rights of, 110, ei seq., 353. 
 
 when mortgagor bank- 
 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, 2 1 
 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 reconvey, 115 
 careless or negligent, 151 
 
856 
 
 INDEX. 
 
 MORTGAGEE— con<w««rf. 
 
 undocketed judgments as against, 155 
 
 inquiry as to wilful default of, 221 
 MORTGAGOR, 
 
 rights of, 110, eiseg. 
 
 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 revive, 
 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 
 MUTUAL, 
 
 fulfihnent of contract, SO 
 
 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 discbarge, 361 
 See Writ of. 
 NEGATIVE PLEA, 337 
 NEGLIGENCE, 
 
 evidence of fraud, 151 
 NEGOTIABLE 
 
 instrument, action on, 168 
 
 security, fraudulent holder of, injunc- 
 tion against, 207 
 
 See Security. 
 NEW MATTER, 
 
 after decree, 417, 418 
 
 statemont 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 ad- 
 ministrator, 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 Imbecility ; I/unacy. 
 NON-DISCLOSURE, 
 
 equivalent to fraud, 179, 196 
 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 
 
 of charitable trust, purchaser with, 69 
 
 of prior contract, 152 
 
 to abandon contract, 88 
 
 to pay mortgage money, 314 
 
 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 undocketed judgments, 155 
 
 under 3 & 4 Vict. c. 82, immaterial, 
 155 
 
 of breach of trust, 156 
 
 to purchaser, 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 
 
INDEX. 
 
 857 
 
 OATH 
 of defendant to plea, 341 
 defendant to answer on, 344 
 OBJECTIONS 
 to title waived, 87 
 to report of 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; Specific 
 
 Chattels ; Title Deeds. 
 OWNERSHIP, 
 legal and equitable, 39, 40 
 equitable, to what subject, 42 
 
 of personal estate, how trans- 
 ferred 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 
 
 PAB-EJ^T— continued. 
 
 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 of, 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 
 
 when party to suit as to partnership,321 
 
 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, parties 
 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 
 See Mines ; Collieries. 
 PARTY 
 
 and party, costs as between, 391 
 PATENT, 
 
 statutes as to, 212 
 
858 
 
 INDEX. 
 
 FATEVT— continued. 
 
 ex parte injunction as to, 355 
 disputed, infringement of, 378 
 right, 212, 213 
 See Infringement. 
 PAYMENT, 
 of principal or interest within twenty 
 
 years, 1 14 
 of purchase-money, 156 
 of rents, 238 
 
 forfeiture for want of, 109 
 into Court of balance in hand of exe- 
 cutor, 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 mil. 
 PEER, 
 
 privileges of, 326 
 being defendant, 311 
 PENALTY, 
 
 difoovered 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 for, 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 appearance 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 REPRESENTATIVE. 
 
 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 supplemental, 
 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 
 
 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, 86 
 
 purchaser taking, 86, 87 
 
 mortgagor in, 114 
 
 for twenty years, effect 
 of, 114, 119 
 
 mortgagee in, 117, 118, 119 
 
 of receiver, 355 
 
 of foundation of lien, 126 
 
 where evidence of fraud, 151 
 
 of estate of idiot or lunatic deceased,298 
 See Reduction into. 
 POSSESSORY RIGHT, 
 
 suit as to, parties to, 317 
 
INDEX. 
 
 859 
 
 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 conveyance 
 
 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 decree 
 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 
 
 PRINCIPAL— coreimueA 
 
 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 jjgent; Steward. 
 PRINTER, 
 
 Queen's, 214 
 PRIOR 
 
 mortgage, mortgagor bound to disclose, 
 
 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 
 bill taken, rehearing of, 400 
 See Bill. 
 PRODUCTION OF DOCUMENTS, 12, 
 13 
 order for, 16, 349, 350 
 grounds for refusing, 1 6 
 in possession of plaintiff, 17, 18, 350 
 on reference to Master, 225, 382 
 allegations in bill to obtain, 305 
 on trial of issue, 377 
 action, 378 
 PROFERT, 
 
 at law, doctritie of, 167, 168 
 
860 
 
 INDEX. 
 
 PROFESSIONAL ADVISER, 6, 344, 
 
 370 
 PROFITS, 
 
 made by trustee, account of, 64 
 agent, 221, 222 
 
 of partnership, 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 legacy, 
 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 under, 
 86 
 
 in name of another, 101 
 
 without notice, equity originating in, 
 159 
 
 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, 34 
 
 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 debts, 156, 157 
 
 not compelled te dis- 
 cover, 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 
 QU9 WARRANTO, 
 
 discovery subjecting to, 3 
 RAILWAY 
 
 company, injunction against, 211 
 share, 265 
 REAL ESTATE, 
 
 declaration of trust as to, 28 
 resulting trust as to, 31 
 specific performance as to, 85 
 judgment, charge on, 1 32 
 See Lien ; Conversion. 
 REBELLION, 
 writ of, 325 
 
 abolished, 328, 393 
 RECEIPT, 
 by trustees, 58 
 by executors, 58 
 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, 
 
 &o., to, 147 
 in administration suit, 259 
 bill for appointment of, 281, 284 
 of the estate of ward, 284 
 lunatic, 293 
 
 duty of, 293, 
 294 
 
INDEX. 
 
 861 
 
 RECEIVER— coreh'nuerf, 
 of the estate of lunatic, security by, 
 
 294 
 order for appointment of, 349, 353-355 
 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 establish 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 POSSESSION, 
 
 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 Arbitrator ; Auditor; Master. 
 REGISTER 
 
 of judgment, 132 
 acts, 153 
 
 See Conveyance. 
 REHEARING, 
 
 generally, 388, 396^01 
 on supplemental bill, in nature of re- 
 view, 419 
 and hearing on supplement and re- 
 view, 41 8, 419 
 REGISTRATION, 
 under 1 & 2 Vict. e. 110-155 
 
 REGISTRATION— conimMcf?. 
 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 for. 
 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 BUI. 
 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 
 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 revivoi 
 and supplement against, 407 
 See Administrator ; Executor. 
 
862 
 
 INDEX. 
 
 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 mortgagee in 
 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 
 settling boun- 
 daries, 380 
 partition, 231 
 de lunatico in- 
 quirendo, 392 
 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, 417 
 of, form of, 418 
 
 leave to file, 417,418,419 
 statement in, of leave obtained 
 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 
 gen eral, ascertained, injunction granted 
 on bill of peace, 200 
 
 ■ RIGHT — continued, 
 
 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, 253, 255 
 Master to superintend, 379, 380 
 See Auction; Bargain; Condition; 
 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, 2 14 
 SEAL, 
 contracts under, see Discharges, 
 securities not under, 167 
 SEARCH 
 
 for deed or judgment, presumed no- 
 tice, 157 
 SECURITY, 
 
 trust property on, 56 
 
 conveyance being, right to redeem, 
 
 111, 122 
 collateral, mortgagee selling on, 119 
 
 in case of lien, 128 
 imperfect, what is, 122 
 sheriff to seize, 131 
 negotiable, lost, 167 
 under writ of ne exeat, 360, 361 
 See Instrument; Mortgage. 
 SEPARATE 
 account, 388 
 
INDEX. 
 
 863 
 
 SEPARATE — continued. 
 
 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 docu- 
 ments, 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 ancient 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, 1.32 
 
 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 
 SIMON r, 
 
 discovery as to, 3 
 SIMPLE CONTRACT, 
 
 debt may be tacked, 164 
 
 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 
 SPEA-KING DEMURRER, 335 
 SPECIAL 
 
 circumstances, liberty to state, 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 contract in, 82, et seg. 
 See Specific Performance. 
 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, 
 2G5 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 
 
864 
 
 INDEX. 
 
 STATUTE— con(m«e«;. 
 
 of Frauds, declaration of trust under, 
 27, 28 
 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 
 ofpartition, 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 employer, 
 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, sta- 
 tutes as to, 192, 193 
 
 SUBPOENA, 
 writ of, prayer for, 308, 310, 311 
 service of, 324 
 substituted service of, 324 
 to hear judgment, 373 
 to revive suit, prayer for, 407 
 in nature of scire facias, to revive de- 
 cree, 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 favor 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, 268, 269, 270 
 
 between themselves, 268,269 
 and principal, 
 268, 269, a/O 
 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, 
 
 intolment of decree vacated on, 397 
 
INDEX. 
 
 865 
 
 SURRENDER 
 
 of copyhold, equity for supplying, 98, 
 99 
 
 decree for, 394, 395 
 
 by Master instead of party in con- 
 tempt, 390 
 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, 41 1, 412 
 
 bound by previous proceedings, 412 
 TENANT FOR YEARS, 
 
 partition by, 230 
 TENDER 
 
 to save costs, 21, 393 
 TENEMENTS, 
 
 contract of 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 
 
 TIMBER— cofifcMerf. 
 
 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. 
 
 not of essence of contract, 88 
 
 for payment, contract to give, 107, 126, 
 127 
 
 applications tor, 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, 1 60 
 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, eflfect 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 
 
 55 
 
866 
 
 IKDEX. 
 
 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 Deetruciive Trespass. 
 TRESPASSER, 
 
 at law, 86 
 TRIAL. See New Trial. 
 TROVER, 
 
 action of, 91 
 TRUSTEES, 
 
 who called, 26, 27 
 
 duties and responsibilities of, 55, et 
 seq. 
 
 by operation of law, 143 
 
 by construction of eqnity, 62, HI, 97, 
 102, 115, 143 
 
 claims against, 69 
 
 by misrepresentation, 150 
 
 retiring, 38, 39 
 
 desirous of being 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 purchase 
 by, 60, 183,184 
 
 of ward, 284 
 
 of stock, moneys, &o., 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 
 
 TRUSTEES— conitnaerf. 
 
 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 
 concealinent of ground for bill of re- 
 view, 419 
 equity under, 149 
 
 operation under, of equitable conver- 
 sion, 135, et seq. 
 countermanded, a reconversion, 136, 
 137 
 See Conversion ; Declaration ; 
 Statute of Frauds. 
 
 UNCERTAINTY, 
 
 gift void on ground of, 69 
 UNDERWRITERS, 
 
 contribution between, 269 
 See Average. 
 UNIVERSITIES, 
 
 privileges of, 331 
 
 privileges of, as to printing and copy- 
 right, 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 
 
INDEX. 
 
 867 
 
 VALUE, 
 
 rent below, notice of fraud, 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 
 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, &o., 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, mortga- 
 gee or agent, 221 
 WILL, 
 
 validity of, jurisdiction as to, 175, 248 
 
 jurisdiction to declare, established, 
 249 
 
 trusts created by, 27, 249 
 
 resulting trusts by, 32 
 
 mistake in, 172 
 
 to be registered, 153 
 
 proof of execution of, on issue directed, 
 
 249, 250 
 
 fraud used in obtaining, 175, 248 
 
 execution of power by, 100 
 
 of feme covert judicially non existent, 
 
 93 
 construction of, as to trusts, 41, 42 
 bill to perform trusts of, 249 
 
 administer assets under, 249 
 suits 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 
 
868 
 
 INDEX. 
 
 WRIT— continued. 
 
 of melius inquirendum, 292 
 
 of ne exeat regno, 311, 349, 360, 
 
 361 
 of partition, 229, 230 
 of rebellion, 325, 328, 393 
 of sequestration, 325, 393 
 of subpoena, 308, 310, 311 
 of venditioni exponas, 395 
 
 VfRlT— continued. 
 delivery of, 131 
 See Elegit; Fieri Facias. 
 WRITING, 
 
 trust by, 28, 143 
 
 agreement in, under Statute of Frauds, 
 
 85, 86 
 instrument in, extrinsic evidence as to, 
 103, 104 
 
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 XV.— Of Payment. 
 XVI. — Of the Satisfaction, Extinguishment, 
 
 and Suspension of the Right of Action on 
 
 a Bill. 
 XVIL— Of Release. 
 XVIII. — Of the Law of Principal and Surety 
 
 in its application to Bills and Notes. 
 XIX.— Of Protest and Noting. 
 
 XX. — Of Acceptance supra Protest, or for 
 
 Honour. 
 XXI. — Of Payment, supra Protest, or for 
 
 Honour. 
 XXII.— Of Notice of Dishonour. 
 XXIIL— Of Interest. 
 
 XXIV.— Of the Alteration of a Bill or Note. 
 XXV.— Of the Forgery of Bills or Notes. 
 XXVI. — Of the Statute of Limitations in Ob 
 
 application to Bills and Notes. 
 XXVII.— Of the Law of Set-off and Mutual 
 
 Credit, in Relation to Bills and Notes. 
 XXVIIL— Of a Lost Bill or Note. 
 XXIX. — How far a Bill or Note is considered 
 
 as Payment. 
 XXX.— Of Sets and Copies of Bills. 
 XXXL— Of Foreign Bills and Notes, and of 
 
 Foreign Law relating to Bills and Notes. 
 XXXII. — Of. the Remedy by Action en a BilL 
 XXXIII. — Of the Pleadings in Actions on Bills 
 
 and Notes. 
 XXXIV.— Evidence. 
 XXXV.— Of the Bankruptcy of Parties to a 
 
 Bill or Note. 
 XXXVI. — Of the efFeot of a Discharge under 
 
 the Acts for the Relief of Insolvent Debtors. 
 
 " I was familiar with the merits of the original work, and on my first connexion with the Univer- 
 sity of Virginia, introduced it among our Text Books in Mercantile Law. It seems to mo from 
 
 its PRECISION, BREVITY, COMPREHISNSIVENBSS, PRACTICAL POINT AND ACCURACY, eminently 
 
 adapted to tlie wants of the student. The full annotations of Judge Sharswood have greatly 
 enhanced its value, and render it an extremely convenient manual for the practitioner." 
 
 Jaues p. Holcohbe. 
 
 " The fact that this work has recently been introduced into the Law Sjhool of Harvard 
 College as a Text Book, w'.ll give it a reputation sufficient to place it in the library of every 
 lawyer who knows this fact. Before it could find its way into that celebrated school it had to ba 
 criticised by two of the greatest masters of their profession living, the Royal and Dane Profs 
 of Law in that Institution. To say that it is used as a Text Book there, is equivalent to sayinj 
 that H surpasses in iiUrineie merit all other works extant on this subject." 
 2 17 
 
T. &, J. AV. JOHNSON & CO.'S LAW PUBLICATIONS. 
 
 ADAMS'S EQUITY. 
 
 NEW EDITION-. 1859. $5.50. 
 ADDITIONAL NOTES BY HENRY WHARTON, ESQ. 
 MiE TEXT-BOOK AT HARVARD LAW SCHOOL, WILLIAM AND MARY COLLEGE, 
 ' CINCINNATI LAW SCHOOL, UNIVERSITY OP VIRGINIA, UNIVERSITY OF MIS- 
 SISSIPPI, ETC., ETC. 
 
 The Doctrine of Equity, being a Commentary on tlie Law as administered by 
 the Court of Chancery. By John Adams, Jr., Esq. With copious Notes and 
 Kefereiices to American cases, by James K. Ludlow and John M. Collins, 
 Esq?., and with later English and American Annotations, by Henry Whar- 
 ton, Esq. Fourth American Edition. 
 
 Book L — Of the Jurisdiction of Courts of Equity, as regards their Power 
 of enforcing Discovery. 
 
 Book II.— Of the Jurisdiction of Courts of Equity, in Cases in which the 
 Courts of Ordinary Jurisdiction cannot enforce a right. 
 
 Book III.— Of the Jurisdiction of Courts of Equity, in Cases in which the 
 Courts of Ordinary Jurisdiction, cannot administer a right. 
 
 _ Book IV. — Of the forms of Pleading and Procedure, by which the Juris- 
 diction of the Courts of Equity is exercised. 
 
 "I prefer Adams to all the elementary books on Equity. Mr. Wharton's notes point out the 
 sources of the American law on kindred subjects, without taking away the life of the author by 
 perpetual digressions."^M. E. Cdewen, Cincinnati, Nov. 25, 1859. 
 
 "G-EWBRAL Order, Supreitb Court. — Students preparing to be examined for a Superior Court 
 License, are required hereafter to read Adams's Doctrine op Equity, instead of Eonblanque." — 
 Volume 7 IredciVs Equity Jtteporte, North Carolina. 
 
 " How highly Adams's Doctrine of Equity is appreciated in North Carolina, is sufficiently 
 shown by the fact that it has been prescribed by our Supreme Court, as a part of the course to be 
 read by students who intend to apply for license to practise in our highest judicial tribunals. 
 The notes hare greatly increased the value of the work to the American lawyer." 
 
 Wm. H. Battle. 
 "Adams's Equity is a work of real value to the profession. Its value is much enhanced to 
 fche American Bar by the copious and well-arranged notes with which your edition is enriched." 
 
 R. B. Taney. 
 "Adams's Equity is a work of great intrinsic value, enhanced by the judicious and well-selected 
 notes of Messrs. Ludlow and Collins, and, I doubt not, will be highly esteemed by the profes- 
 sion." S. Greenleaf. 
 
 " I have no hesitation in saying that Adams's Equity is a work of great merit upon the branch 
 of the law of which it treats. The American notes are also valuable to the Equity practitioner." 
 
 R. H. Walworth. 
 
 "Adams's Equity is a Treatise of great merit and originality. I shall strongly recommend it 
 to my class, and if practicable, I will at a future day introduce it in the course. In the depart- 
 ments of Equity and Mercantile Law, which are under my care, I expect to use White and 
 Tudor'a L6p,ding Casfs, and Smith's ditto at Law." 
 
 jAsrES P. HoLCOMBE, ProfeBBor of Equity in the Vniveraity of Virginia. 
 "It is the most complete, comprehensive, and accurate elementary work on Equity that has, 
 at any time, come to my hatfds — full, though brief; methodical and clear, and sustaining itself 
 by pertinent references, it is fitted not only to unfold the beautiful system of jurisprudence to 
 which it relates, to ordinary students, but to infix its principles in the mind of the most advanced 
 professional man." Jo" Johnston, Newberry, jS. C. 
 
 "The best evidence which I can give of the estimate which I have formed of Adams's Equity 
 is, that I have adopted it as one of the Text Books in my school. , I regard it as one of the 
 best elementary treatises upon Equity ever published." Geo. P. Scarbdrgh, 
 
 * William and Mary College. 
 
 "Adams's Equity is a valuable work; the notes very well executed; the style of getting up 
 Deyond praise." ^^°- Sharswood, Law School, University nf Pennsylvania. 
 
 "Adams's Equity is by far the best treatise on the subject I know. Benj. Gerhard. 
 
 "Adams's Equity seems to be an admirable summary of Equity Law, written in a remark- 
 »bly CLEAR, TERSE, and riGOROos style." Sam'l T. DondLASs. 
 
 *' Adams's Equity is a work of great excellence." Oswald Thompson, 
 
 President Judge Common Pleas, Philadelphia. 
 18 
 
T. & J. W. JOHNSON & CO/S LATT FUiil^iUAuuiNo. 
 
 COBB'S LAW OF SLAVERY. 
 
 1858. 870. $5.00. 
 
 An Inquiry into the Law of Negro Slavery in the United States of America : 
 to which is prefixed an Historical Sketch of Slavery. By Thos. R. R 
 Cobb, of Georgia. 
 
 HISTORICAL SKETCH. 
 
 INTRODUCTION.— Antiquity of Slavery. 
 
 CHAPTER I. — Slavery among the Jews. 
 
 11. — Slavery in Egypt. 
 
 III. — Slavery in India. 
 
 IV. — Slavery in the East. 
 
 V. — Slavery in Greece. 
 
 VL — Slavery in Rome. 
 
 VII. — Slavery in Europe in the Middle Ages. 
 
 VIII. — Slavery in Great Britain. 
 
 IX. — Negro Slavery and the Slave Trade. 
 
 X. — Abolition of the Slave Trade. 
 
 XI.- — Abolition of Slavery in some of the United 
 
 XII. — Abolition in Hayti. 
 
 XIII. — Abolition of Slavery by Great Britain. 
 
 XIV.— The effects of Abolition. 
 
 XV. — The effects of Abolition in the United 
 
 States. 
 XVI. — Slavery in South America. 
 XVIL— Slavery in the United States. 
 XVIII. — African Colonization. 
 
 LAW OF NEGRO SLAVERY. 
 
 CHAPTER I.— What is Slavery. 
 
 II. — Negro Slavery viewed in the light of 
 Divine Revelation. 
 
 Ill, — Of the origin and sources of Slavery in 
 America. 
 
 IV. — Of the Slave as a Person. 
 
 V. — Same subject continued. 
 
 VI. — Personal Liberty, and herein of Fugitive 
 Slaves. 
 
 VII. — Slaves escaping or carried into other 
 States. 
 
 VIII. — And examined in the light of the opi- 
 nions of Foreign Jurists. 
 
 IX. — And decisions of Foreign Judicial Tribu- 
 nals examined. 
 
 X. — How far the question is affected by our 
 Form of Government and Constitution. 
 
 XI. — Decisions of our own Courts examined. 
 
 XII. — Fugitive Slaves, and of the right of the 
 
 Master to remove the Slave. 
 XIII. — Of the privilege of the Slave to be a 
 
 Witness. 
 XrV. — Of the right of Private Property as 
 
 applied to Slaves. 
 XV. — Of Contracts by Slaves, and herein of 
 
 Marriage. 
 XVI.— Of Suits for Freedom. 
 XVII.— Of other Disabilities of Slaves. 
 XVIII.^Of Offences committed by Slaves. 
 XIX. — Of Manumission. 
 XX.- — Of Manumission by Will or Executory 
 
 Contract. 
 XXI. — Of indirect Manumission. 
 XXII. — Of the effect of Manumission, and 
 
 herein of the status of free persons of color. 
 
 " Turning to the book in its legal aspects, it is written with ability, care, and candour, and the 
 discussion of doubtful legal points is marked by learning and discrimination."- — Law Reporter, 
 December, 1858. 
 
 "A glance at this sketch has satisfied us that it will supply an important desideratum for the 
 intelligent and useful discussion of this topic."- — Quarterly Law Journal, Richmond, Va., January, 
 1859. 
 
 "This new law book has an attraction which publications of that sort very seldom present, at 
 least for the general reader. It is also likely to prove highly useful and convenient to the 
 practical lawyer, since it treats of a title peculiar to American law, and never hitherto made the 
 subject of an elementary treatise. Its professed object is to exhibit the exact legal status of the 
 slave in the United States. To enable the student to appreciate not merely the positive but the 
 relative position of the American slaves as compared with that of other servile classes in other 
 times and other countries, its learned and industrious author has prefixed an introduction, which 
 occupies near half of the present volume, containing an historical sketch of slavery in all ages 
 and nations." — New York Tribune, October 15th, 1858. 
 
 "Nothing could be more damaging to slavery than this effort of Mr. Cobb to set it upon a 
 foundation of reason and philosophy. The effort is so manifestly a failure, thatit must inevitably 
 recoil, with terrible force, upon the system he so much admires and commends. So strong is our 
 conviction of this fact, that we would, were it in our power, put a copy of this work into every 
 Northern household, as the surest means of deepening and intensifying the anti-slavery agita- 
 tion."— iVa?i07m^ Anti-Slavery Standard, New York, December 11th, 1858. 
 
 "We have here what the public has long been in want of — an elementary treatise defining the 
 law of slavery as it exist-s in the United States. The history of slavery is very thorough, and 
 compiles within brief limits a vast amount of well-authenticated information. The writer has 
 aimed at showing what the law is, and not what it ought to be, though his own reflections are 
 occasionally interwoven. The book will be sought for and made a book of reference in the dis- 
 cussion which now absorbs more thought than any other question in this country." — The Observer, 
 New Ycrk, October 21st, 1858. 
 
 20 
 
T. & J. W. JOHNSON & CO.'S LAW PUBLICATIONS. 
 
 TUDOR'S LEADING CASES ON MERCANTILE 
 AND MARITIME LAW. 
 
 IN PREPARATION. 
 With copious Notes, illustrating tte American decisions, by Hon. J, I. Clark 
 
 Hare, editor of Smith's, American and Equity Leading Cases. 
 
 Having purchased advance sheets of this work, we expect to issue this edition 
 shortly after its completion in England. 
 
 MILLIARD ON SALES. 
 
 nearly ready. 1860. 
 
 A Practical and Elementary Treatise on the Law of Sales of Personal Property. 
 Rewritten and greatly enlarged and improved, by Francis Hilliard, author 
 of "Law of Mortgages," "Law of Torts," &c. 
 
 GRANT ON BANKING. 
 
 1857. $3.00. 
 
 A Treatise on the Law relating to Bankers and Banking. By James Grant. 
 
 POWELL ON EVIDENCE. 
 
 1868. $2.00. 
 
 The Practice of the Law of Evidence, with a chapter on the Measure of Damages. 
 By Edmund Powell, Esq., author of " The Law of Carriers." 
 
 PARSONS ON WILLS. 
 
 1855. $1.25. 
 
 A Treatise on the Law of Wills, embodying the latest decisions relating thereto. 
 By Arthur Parsons, Esq. 
 
 PHEAR ON RIGHTS OF WATER. 
 
 1859. $1.00. 
 
 A Treatise on Rights of Water, including public and private rights to the eea 
 and sea-shore. By J. B. Phear, Esq. 
 
 GRAPEL ON CIVIL LAW. 
 
 1857. $1.00. 
 
 Sources of the Roman Civil Law. An Introduction to the Institutes of Jus- 
 tinian. By Wm. GrRAPEL. 
 
 BUCKNILL ON CRIMINAL LUNACY. 
 
 1856. $1.00. 
 
 Unsoundness of Mind in relation to Criminal Acts. An Essay to which the 
 First Sucrden Prize of 1854 was awarded, by the King and Queen s College 
 of Physicians, in Ireland. By John Charles Bucknill, M. D. 
 
 BROOM'S LEGAL MAXIMS. 
 
 fourth edition, 1854. $4.00. 
 
 A SELECTION OF LEGAL MAXIMS, CLASSIFIED AND ILLUSTRATED. 
 By H. broom, Esq. 
 
 « Maxims are the condensed good sense of nations."-Sra Jamis Maoki.ito8b. 
 
 Fourth American, from the last London Edition, greatly enlarged and improved 
 
 « A concise and excellent treatise on the subject. Hia is the very best book of the kind ei- 
 j^«_j(fari'iV« Legal Bibliography/. jj 
 
T. & J. W. JOHNSON & CO.'S LAW PUBLICATIONS. 
 
 " We welcome this volume as a very valuable addition to the stock of elementary worts on the 
 law. It forms a collection of the first principles of legal science, and efi'ects a vast improvement 
 on the * law grammars' of former times, which, however useful as hooks of reference, were too 
 concise either to attract or instruct the student. 
 
 " In his first two chapters, Mr. Broom treats of maxims which relate to constitutional princi- 
 ples, and the mode in which the laws are administered. 
 
 "Next come certain maxims which are rather deductions of reason than rules of law. These 
 the author terms ' Eules of Logic' 
 
 " Then follow, in the fourth chapter, what are termed fundamental legal principles. 
 
 " The fifth treats, 1. Of the maxims relating to property, its rights and liabilities ; and, 2. Of 
 the rules relating to marriage and descent. 
 
 "The sixth sets forth the maxims relating to the interpretation of deeds and written instru- 
 ments. 
 
 "The seventh comprises those which are applicable to the law of contracts; and 
 
 "The eighth, maxims applicable to the law of evidence." — London Legal Observer. 
 
 "We are speaking merely the plain truth when we state that this work is of a peculiarly prac- 
 tical nature, and as useful to the practitioner as the student. Indeed, we know of no one work 
 which embraces so many useful titles, and, at th« same time, discusses so many of the recent 
 cases, the real bearings of which are lucidly stated and applied. To accomplish these things has 
 been the good fortune of Mr. Broom, and for it he deserves the thanks of the profession." — Law 
 Student's Magazine, April 16. 
 
 BROOM'S COMMENTARIES. 
 
 NOW READY, $4.00, 
 
 Commentaries on tlie Common Law, as Introductory to its Study, by Herbert 
 Broom, M. A., Author of "Legal Maxims," "Parties to Actions " 
 
 CONTENTS. 
 
 Book I. — On Legal Rights and Remedies, I Book III. — On Torts. 
 
 Book 11. — On Contracts. | Book IV. — On Criminal Law. 
 
 "As our readers know, we value highly a good book of practice for the ready reference of the 
 overworked lawyer, hut we prize at least equally highly a scientific work of principles, like the 
 one before us, which may be consulted with confidence as an authority by the jurist, and perused 
 with safety as a text-book by the student. 
 
 " The * Legal Maxims* by the same author, has taken its own place as a standard treatise both 
 lu America and in this country; and the commentaries on the Common Law, brought down to 
 the present day, and in conformity with the Litest reported cases, .is a work of which the merits 
 will, as we think, be admitted now and hereafter when it has reached many future editions." 
 
 Law Times, Jan. 1856. 
 
 "To those who have read and are familiar with 'Broom's Legal Maxims,' we need hardly 
 recommend this second work of the author. The aim of the book is to present explanatory 
 comments on the law, illustrated by cases, in sufficient number to enable tho student to pursue 
 the matter discussed in detail, but without encumbering the text with unnecessary citations. 
 The experienced practitioner will also find it a valuable assistant, in the clearness with which 
 principles and the exceptions to them are stated, and the aptness of the authorities laid down in 
 support of them." — Qnarterty Law Journal, Oct., 1S56. 
 
 SMITH ON REAL AND PERSONAL PROPERTY. 
 
 8vo. 1866. $4.60. 
 
 A Practical Compendium of the Law of Real and Personal Property as con- 
 nected with Conveyancing. By Josiah W. Smith, Editor of " Mitford's 
 Pleadings." 
 
 "It will bo seen, from this outline, that the worlc is extremely well planned; the topics arg 
 ;irraiiged in tho natural order, as they flow out of one another, and thus immensely aid the 
 reader's memory. Mr. Smith does not needlessly encumber his pages with case.', but states then 
 results succinctly, and is thus enabled to bring the wide range of his subject within one volume 
 of portlj', but not inconvenient dimensions. He writes like a man who is master of his themo, 
 clearly and concisely ; and the student will find tho compendium well adapted to give him knov 
 ledgo, and to tho practitioner it will he useful as 'a refresher.'" — Law Times, Dec. 1, 1865. 
 
 .3.".