UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY 
 
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 Book No. 
 
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 V*:
 
 THE 
 
 COMMENTARY ON THE LAW 
 
 AS ADMINISTERED BY 
 
 e Court of 
 
 JOHN ADAMS, JUN., ESQ., 
 
 BARRISTER AT LAW. 
 
 CONTAINING THE NOTES TO THE PREVIOUS EDITIONS OF 
 
 J. R. LUDLOW, J. M. COLLINS, HENRY WHARTON AND 
 GEO. TUCKER BISPHAM. 
 
 ADDITIONAL NOTES AND REFERENCES TO RECENT ENGLISH AND 
 AMERICAN DECISIONS, 
 
 BY 
 
 GEORGE SHARSWOOD, JR. 
 
 PHILADELPHIA: 
 T. & J. W. JOHNSON & CO., 
 
 LAW BOOKSELLERS, PUBLISHERS AND IMPORTERS, 
 535 CHESTNUT STREET. 
 
 1873.
 
 
 W G 
 
 Entered, according to Act of Congress, in the year 1873, 
 
 BY T. & J. W. JOHNSON & CO., 
 
 In the Office of the Librarian of Congress, at Washington. 
 
 Entered, according to Act of Congress, in the year 1868, 
 
 BY T. & J. W. JOHNSON & CO., 
 
 In the Clerk's Office of the District Court for the Eastern District of Pennsylvania. 
 
 HESRT B. ASBHEAD, PRINTER, 
 Nos. 1102 and 1101 Sansom Street, Philadelphia.
 
 tithdrawn 
 
 PREFACE 
 
 TO THE SIXTH AMERICAN EDITION. 
 
 WITH the concurrence and approval of the former ed- 
 itors, their notes and references have been combined, and 
 those of the present editor added to them. Their arrange- 
 ment of notes has been followed, and the present work, 
 has, as far as possible, been confined to references to the 
 recent American and English cases. 
 
 GEORGE SHARSWOOD, JR. 
 
 PHILADELPHIA, January, 18T3.
 
 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 in- 
 stances, however, enlarged and added to his predecessors' 
 notes, though leaving them in general to stand as they 
 were written. 
 
 The editor would willingly have made the annotations 
 to the last division of this work, on Pleading and Prac- 
 tice, 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 corre- 
 sponding advantage to the reader. In this country, in- 
 deed, between those States in which the distinct equitable 
 jurisdiction is abolished, and those in which the frame- 
 work of the Court of Chancery still stands, there 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
 
 PREFACE. V 
 
 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 appro- 
 priate 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 concise 
 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 recourse 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 injury and 
 delay as possible. Bills of revivor and supplement no 
 longer exist; their place being supplied by a greater 
 latitude of amendment, and by the power to make cor- 
 responding orders in the cause. The clumsy system of 
 the examination of witnesses on interrogatories is abol- 
 ished; 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
 
 VI PREFACE, 
 
 no longer allowed. That fons mdhrum, the office of 
 Master, is done away, and its duties are transferred to 
 the Court at chambers, assisted by clerks. The Court 
 now settles all question's 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 Ap- 
 peal, with co-ordinate appellate jurisdiction to the Chan- 
 cellor, 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 be- 
 fore 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-regulated, 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 direc- 
 tion 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 im- 
 provement by one of the most conservative of nations. 
 
 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. 
 
 HENRY WHARTON. 
 
 PHILADELPHIA, April, 1855.
 
 ADVERTISEMENT. 
 
 IN preparing this treatise for the press, the chief design 
 of its lamented author was to present to the profession a 
 comprehensive and condensed view of the general Princi- 
 ples of the Doctrine of Equity, as administered 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, de- 
 livered before the Incorporated Law Society, in the years 
 18425. The completion of the work in its present form 
 occupied from that period a considerable 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 corrections, and arrangements were 
 making for its immediate publication, when he was so sud- 
 denly 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 assistance 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 BETWEES BRACKETS f ] 
 
 BOOK I. 
 
 OP THE JURISDICTION OP COURTS OP EQUITY AS REGARDS THEIR 
 POWER OP ENFORCING DISCOVERY. 
 
 CHAPTER 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 II. 
 
 OP THE JURISDICTION OP THE COURTS OF EQUITY IN CASES IN WHICH 
 THE COURTS OP ORDINARY JURISDICTION CANNOT ENFORCE A RIGHT. 
 
 CHAPTER I. 
 
 Of Trusts, both Ordinary and Charitable . . . .26 
 
 CHAPTER II. 
 
 Of Specific Performance ..... 77 
 
 Of Election ....... 92 
 
 Of Imperfect Consideration ..... 97 
 
 Of Discharge by Matter in pars of Contracts under Seal . . 106
 
 CONTENTS. 
 
 CHAPTER III. 
 
 Of Mortgages. 
 
 Perfect .... . . .110 
 
 Imperfect . . . . .122 
 
 CHAPTER IV. 
 
 Of Conversion . . . . . . 135 
 
 Of Priorities . . . . . . .145 
 
 Of Tacking . . . . .' . . 163 
 
 CHAPTER V. 
 
 Of Re-execution . . . . . . .167 
 
 Of Correction . . . . . . 169 
 
 Of Rescission and Cancellation ..... 174 
 
 CHAPTER VI. 
 
 Of Injunction against Proceedings at Law . . . 194 
 
 Of Bills of Peace . . . . .199 
 
 Of Bills of Interpleader ... .202 
 
 Of Injunction against Tort . . . 207 
 
 BOOK III. 
 
 OP THE JURISDICTION OF THE COURTS OP EQUITY IN CASES IN WHICH 
 THE COURTS OP ORDINARY JURISDICTION CANNOT ADMINISTER A 
 RIGHT. 
 
 CHAPTER I. 
 Of Account. . .... 220 
 
 CHAPTER II. 
 
 Of Partition ... ... 229 
 
 Of Assignment of Dower . . 233
 
 CONTENTS. XI 
 
 Of Subtraction of Tithes. . . . . .235 
 
 Of Ascertainment of Boundary .... 237 
 
 CHAPTER III. 
 
 Of Partnership . ..... 239 
 
 CHAPTER IV. 
 
 Of Administration of Testamentary Assets . . . 249 
 
 CHAPTER V. 
 
 Of Contribution and Exoneration . . 267 
 
 Of Marshalling 271 
 
 CHAPTER VI. 
 
 Of Infancy ... . 278 
 
 Of Idiocy and Lunacy ..... 290 
 
 BOOK IV. 
 
 OF THE FORMS OF PLEADING AND PROCEDURE BY WHICH THE JURIS- 
 DICTION OF THE COURTS OF EQUITY IS EXERCISED. 
 
 CHAPTER I. 
 Of the Bill . 299 
 
 CHAPTER II. 
 Of Parties ....... 312 
 
 CHAPTER III. 
 Of Process and Appearance ..... 324
 
 XU CONTENTS. 
 
 CHAPTER IV. 
 Of the Defence ..... 331 
 
 CHAPTER V. 
 Of Interlocutory Orders ...... 348 
 
 CHAPTER VI. 
 Of ETidencev ...... 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, 
 
 Abbott's R. (U. S. G. C.). 
 
 Adams on Ejectment. 
 
 Adolphus and Ellis R. (England). 
 
 Alabama Reports. 
 
 Allen's R. (Massachusetts). 
 
 Ambler's R. (England). 
 
 American Law Journal, New Series. 
 
 American Law Register. 
 
 American Law Register, (New Series) . 
 
 American Leading Cases (Hare and 
 
 Wallace). 
 Arkansas Reports. 
 Ashmead's R. (Pennsylvania). 
 Atkyn's 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. (Eng- 
 land). 
 
 Barnewall and Cresswell R. (Eng- 
 land). 
 
 Barr's R. (Pennsylvania). 
 
 Bay's R. (South Carolina). 
 
 Beames on Costs in Equity. 
 
 Beasley's R. (New Jersey). 
 
 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). 
 
 Eland's Chancery R. (Maryland). 
 
 Black's R. (Sup. Ct. U. S.). 
 
 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's R. (England). 
 
 Bradford's Surrogate R. (New York). 
 
 Brewster's R. (Pa.). 
 
 Brightly's Nisi Prius R. (Pennsyl- 
 vania). 
 
 Brockenbrough's R. (CircuitCt. U. S.). 
 
 Browne's Chancery Cases (England). 
 
 Browne's Parliamentary Cases by 
 Tomlins (England). 
 
 Burrill on Assignments for the Benefit 
 of Creditors. 
 
 Burrough's R. (England). 
 
 Burr's Trial (U. S.). 
 
 Busbee's Eq. R. (North Carolina). 
 
 Caines's Cases in Error (New York). 
 
 Calendar of Chancery Proceedings. 
 
 California Reports. 
 
 Call's R. (Virginia). 
 
 Cameron and Norwood's R. (North 
 Carolina). 
 
 Carolina Law Repository (North Caro- 
 lina). 
 
 Carter's R. (Indiana). 
 
 Chambers on Infancy. 
 
 Chancery's Cases (England). 
 
 Chandler's R. (Wisconsin). 
 
 Charlton (R. M.) R. (Georgia). 
 
 Cheves's R. (South Carolina). 
 
 Clark and Finnelly'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 Reports. 
 
 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).
 
 XIV 
 
 TEXT-BOOKS AND REPORTS. 
 
 Craig and Phillips' 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) 
 
 Dallfts's R. (Pennsylvania). 
 
 Dana's R. (Kentucky). 
 
 DanielPs Chancery Practice. 
 
 Day's R. (Connecticut). 
 
 De Gex and Jones' R. (England). 
 
 De Gex, Fisher and Jones' R. (Eng- 
 land). 
 
 De Gex, Jones and Smith's R. (Eng- 
 land). 
 
 De Gex and Smale's R. (England). 
 
 De Gex, Macnaghten and Gordon's R. 
 (England). 
 
 Dessaussure's R. (South Carolina). 
 
 Devereux's Eq. R. (North Carolina). 
 
 Devereux and Battle's Equity R. 
 (North Carolina). 
 
 Dickin's R. (England). 
 
 Dillon's R. (C. C. of II. S.) 
 
 Douglass's R. (Michigan). 
 
 Dow's R. (England). 
 
 Drewry's R. (England). 
 
 Drewry and Smale'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). 
 
 Edwards' Chancery R. (New York). 
 
 Edmonds' Select Cases (New York). 
 
 Elmer's New Jersey Digest. 
 
 English's R. (Arkansas). 
 
 English Common Law Reports. 
 
 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. 
 Giffard's R. (England). 
 Gilbert on Uses, by Sugden. 
 Gill and Johnson's R. (Maryland). 
 
 Gill'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. 
 
 Greenleafs R. (Maine). 
 
 Hale's Jurisdiction of the Hoose 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). 
 Hargrare'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 M'Henry's R. (Maryland). 
 Harrison's R. (New Jersey). 
 Hawk's R. (North Carolina). 
 Haywood's R. (North Carolina). 
 Head's R. (Tennessee). 
 Hemming and Miller's R. (England). 
 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 Denio's R. (New York). 
 Hill's Law R. (South Carolina). 
 Hill on Trustees. 
 Hoffman's Chancery Practice. 
 Hoffman's Chancery R. (New York). 
 Hopkins' R. (New York). 
 House of Lords' Cases (England). 
 Howard's R. (Mississippi). 
 Howard's R. (Supreme Court U. S.). 
 Humphreys' 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.
 
 TEXT-BOOKS AND REPORTS. 
 
 XV 
 
 Jarman on Wills. 
 Jarman's Powell on Devises. 
 Johnson's Reports (England). 
 Johnson andHemming'sR. (England). 
 Johnson's Chancery R. (New York). 
 Jones's Equity R. (North Carolina). 
 Jones and Latouche's R. (Ireland). 
 Jurist (England). 
 
 Kansas Reports. 
 
 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 (Eng- 
 land). 
 
 Lansing's R. (N. Y.). 
 
 Law Journal R. New Series, Chancery 
 (England). 
 
 Law Review (England). 
 
 Law Reports, Chancery Appeals (Eng- 
 land). 
 
 Law Reports, Common Pleas (Eng- 
 land). 
 
 Law Reports, Equity (England). 
 
 Leading Cases in Equity, White and 
 Tudor, American ed. by Hare and 
 Wallace. 
 
 Leigh's R. (Virginia). 
 
 Lewin on Trusts. 
 
 Littell's R. (Kentucky). 
 
 Littell's Select Cases, or 6 Litt. (Ken- 
 tucky). 
 
 Lloyd and Goold's R. (Ireland). 
 
 Louisiana Annual R. 
 
 McCarter's Reports (New Jersey). 
 
 McCord's Chancery R. (South Caro- 
 lina). 
 
 McCord's LawR. (South Carolina). 
 
 McLean's R. (Circuit Court U. S.). 
 
 McMullen's Chancery R. (South Caro- 
 lina). 
 
 Macnaghten and Gordon's R. (Eng- 
 land). 
 
 Macqueen's Practice. 
 
 Macqueen's Scottish Appeal Cases 
 (England). 
 
 Maddock and Geldart (England). 
 
 Haddock's Chancery Practice. 
 
 Maddock's R. (England). 
 
 Maine Reports. 
 
 Manning's R. (Michigan). 
 
 Manning and Granger's R. (England). 
 
 Marshall'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 R. (England). 
 
 Meigs' R. (Tennessee). 
 
 Merivale's R. (England). 
 
 MetcalPs R. (Massachusetts). 
 
 Metcalfe R. (Kentucky). 
 
 Michigan Reports. 
 
 Minnesota Reports. 
 
 Mississippi Reports. 
 
 Missouri Reports. 
 
 Mitford's Chancery Pleadings. 
 
 Molloy'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 (Eng- 
 land). 
 
 Mumford's R. (Virginia). 
 
 Murphey's R. (North Carolina). 
 
 Mylne and Craig's R. (England). 
 
 Mylne and Keene's R. (England). 
 
 Nevada State Reports. 
 
 New Chancery Cases, see Young and 
 
 Collyer. 
 
 New Hampshire Reports. 
 New York Reports. 
 North Carolina Term Reports. 
 
 Ohio Reports. 
 
 Ohio State Reports, New Series. 
 
 Paige's R. (New York). 
 
 Paine's R. (Circuit Court U. S.). 
 
 Parsons on Partnership. 
 
 Parsons' Equity Cases (Pennsyl- 
 vania). 
 
 Patton and Heath's R. (Virginia). 
 
 Peck's R. (Tennessee). 
 
 Peere Williams' R. (England). 
 
 Pennsylvania Law Journal. 
 
 Pennsylvania Reports. 
 
 Pennsylvania State Reports. 
 
 Penrose and Watts' R. (Pennsylvania.) 
 
 Peters' Circuit Court R. (U. S.). 
 
 Peters' R. (Supreme Court U. S.). 
 
 Phillipps on Evidence 
 
 Phillips' R. (England). 
 
 Pickering's R. (Massachusetts). 
 
 Porter's R. (Alabama). 
 
 Precedents in Chancery (England). 
 
 Purdon's Digest (Pennsylvania Stat- 
 utes). 
 
 Queen's Bench R. (England).
 
 XVI 
 
 TEXT-BOOKS AND REPORTS. 
 
 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 Caro- 
 lina). 
 
 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 Yrok). 
 
 Sanford's Superior Ct. R. (New York). 
 
 Saxton's Chancery R. (New Jersey). 
 
 Scammon'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. (Pennsyl- 
 nia). 
 
 Seton on Decrees. 
 
 Shepley's R. (Maine). 
 
 Shower's Parliamentary Cases (Eng- 
 land). 
 
 Siderfin's R. (England). 
 
 Simons' R. (England). 
 
 Simons' R., New Series (England). 
 
 Simons and Stuart's R. (England). 
 
 Smale and Giffard'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. 
 
 Smith's Mercantile Law. 
 
 Sneed's R. (Tennessee). 
 
 South Carolina Reports. 
 
 Speer's Equity R. (South Carolina). 
 
 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'b R. (Circuit Court U. S.). / 
 
 Strange's R. (Eugland). 
 
 Strobhart's Equity R. (South Caro- 
 lina). 
 
 Strobhart's Law R. (South Carolina). 
 
 Sugden on Powers. 
 
 Sugden on the Law of Property as 
 administered in the House of Lords. 
 Sugden on Vendors and Purchasers. 
 Sumner's R. (Circuit Court U. 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 Revised Code. 
 Vesey Senior's R. (England). 
 Vesey Junior's R. (England). 
 Vesey and Beames' R. (England). 
 
 Walker's Chancery R. (Michigan). 
 
 Walker's R. (Mississippi). 
 
 Wallace's R. (Sup. Ct. U. S.). 
 
 Wallace Jr.'s R. (Circuit Ct. U. S.). 
 
 Washington's Circuit Court R. (U. S.) 
 
 Washington's R. (Virginia). 
 
 Watts' R. (Pennsylvania). 
 
 Watts and Sergeant's R. (Pennsylva- 
 nia). 
 
 Wendell's R. (New York). 
 
 West Virginia Reports. 
 
 Wharton's R. (Pennsylvania). 
 
 Wharton's Digest of Pennsylvania R. 
 
 Wharton's R. (Sup. Ct. U. S.). 
 
 White on Supplement. 
 
 Wigram on Discovery. 
 
 Wigram on Wills. 
 
 William Blackstone's R. (England). 
 
 Williams on Executors. 
 
 Williams on Real Property. 
 
 Williams on Personal Property. 
 
 Williams' R. (Vermont). 
 
 Wisconsin Reports. 
 
 Woodburyand Minot's R. (Circuit Ct. 
 U.S.). 
 
 Wright's R. (Ohio). 
 
 Yeates' R. (Pennsylvania). 
 
 Yerger's R. (Tennessee). 
 
 Younge's R. (England). 
 
 Younge and Collyer, Exchequer R. 
 
 (England). 
 Younge and Collyer's New Chancery 
 
 Cases (England). 
 
 Zabriskie's R. (New Jersey).
 
 TABLE OF ENGLISH CASES. 
 
 THE PAGES REFERRED TO ARB THOSE BETWEEN BRACKETS [ ]. 
 
 Aberdeen Ry. Co. v. Blaikie 
 
 Brothers, . . . .183 
 Abernethy v. Hutchinson, . 213 
 
 Ackroyd "v. Smithson, . 33, 138 
 Acton v. Woodgate, ... 31 
 Adair v. New River Co. . . 321 
 Adams v. Claxton, . . 165, 386 
 v. Dowding, . . . 413 
 r. Fisher, . . .17 
 Adderley v. Dixon, ... 83 
 Agar i\ Fairfax, ' . 230, 231, 234 
 r. Regent's Canal Co. . 212 
 Agassiz v. Squire, . . . 185 
 Ahearne t;. Hogan, . . . 184 
 Aldborough v. Trye, . . .186 
 Alden v. Gregory, . . .176 
 Aldrich v. Cooper, 
 
 257, 263, 270, 272, 275 
 
 Aldridge v. Harper, . . . 107 
 
 Aleyn v. Belchier, . . . 186 
 
 Alexander v. Crosbie, . . 171 
 
 Allen r. Macpherson, . 248, 249 
 
 Allfrey r. Allfrey, . . .343 
 
 Allison r. Herring, . . . 221 
 
 Ambrose . Dunmow Union, . 199 
 
 Ames i'. Parkinson, . . 56, 63 
 
 Arnphlett v. Parke, . . .139 
 
 Ancaster v. Mayer, . . . 265 
 
 Ancaster, Duke of, v. Mayer, 261, 263 
 
 Anderson r. Wallis, . . 302 
 
 v. Guichard, . . 355 
 
 v. Noble, . . .196 
 
 Anderton v. Yates, . . . 287 
 
 Andrews v. Lockwood, . . 406 
 
 v. Partington, . . 287 
 
 o. Walton, . . 397 
 
 Angel v. Smith, . . . 353 
 
 Angell v. Angell, ... 24 
 
 v. Davies, . . . 400 
 
 Anon. v. Walker, ... 56 
 
 Anonymous, .... 283 
 
 Ansdell v. Ansdell, . 218,357,375 
 
 Ansley v. Bainbridge, . . 105 
 
 Antrobus v. Davidson, . . 270 
 
 v. Smith, . . .100 
 
 Apperly r. Page, . . 241, 322 
 
 B 
 
 Appleby v. Duke, 
 Archer v. Hale, . 
 Arkwright, Ex parte, 
 Armstrong r. Armstrong, . 
 Arundell v. Phipps, . 
 Ash v. Rogle, . 
 Ashby v. Ashby, 
 Ashburton v. Ashburton, . 
 Ashhurst v. Mill, 
 Aston v. Heron, 
 Atkinson v. Gray, 
 
 v. Henshaw, 
 Att.-Gen. v. Andrew, 
 
 v. Arnold, 
 
 v. Aspinwall, .. . 
 
 v. Bristol, Mayor of, . 
 
 v. Butcher, 
 
 PAGE 
 391 
 107 
 161 
 377 
 151 
 65 
 142 
 285 
 189 
 199 
 252 
 353 
 72 
 71 
 67 
 71 
 400 
 
 v. Caius College, "61, 69 
 v. Clack, ... 39 
 v. Clarendon, Earl of, 75 
 v. Cleaver. . .211 
 
 v. Compton, . . 67 
 v. Cooper's Company, 71 
 v. Corp. of London, 
 
 9, 14, 15, 17 
 
 v. Cradock, . . 310 
 v. Dixie, ... 75 
 v. Draper's Co. . 68, 69, 71 
 v. Dublin, Mayor of, 67, 75 
 v. East Retford, . 11 
 v. Exeter, Mayor of, . 68 
 v. Fishmongers' Co. . 414 
 v. Flint, ... 69 
 v. Foord, ... 74 
 v. Forbes, . . 211, 212 
 v. Foster, . . 411, 412 
 v. Foundling Hospital, 75 
 v. Goldsmiths' Co. . 310 
 v. Green, ... 72 
 v. Grocers' Co. . . 77 
 v. Heelis, . . . 321 
 v. Ironmongers' Co. . 73 
 v. Jackson, . 84, 238 
 v. Lambe, 17 
 
 v. Leeds. Duke of, 37, 115 
 v. Liverpool. Mayor of, 61
 
 
 XV111 
 
 TABLE OF ENGLISH CASES, 
 
 Att.-Gen. v. Lubbock, . . 75 
 v. Lucas ... 4 
 v. Manchester and Leeds 
 
 Railway Company, 218 
 v. Mangles, . .136 
 v. Merchant Tailors' Co. 310 
 v. Mullay, . . . 290 
 v. Newark, Corporation 
 
 of, . . 74 
 
 v. Nicholl, . . 211 
 
 v. Pargeter, . . 74 
 v. Pearson, . . 373 
 v. Poole, Corporation 
 
 of, . . 67, 310 
 v. Pretyman, . . 68 
 . Ray, ... 25 
 v. Sands, ... 51 
 v. Severne, . 290, 372 
 v. Sheffield Gas Con- 
 sumers' Co. . 211 
 v. Shore, ... 61 
 v. Shrewsbury, . . 67 
 v. Sitwell, . . 172 
 
 v. Skinners' Company, 71 
 v. Smythies,. . 71, 75 
 v. Southgate, . . 265 
 v. Todd, ... 73 
 v. Wansay, . . 72 
 v. Whitchurch, . . 71 
 v. Wilkins, . 69, 162 
 v. Wilson, . 71, 268, 319 
 Attwood v. Banks, . . .198 
 v. Small, 176, 177, 189, 321 
 
 Austen v. Hasley, 
 
 v. Taylor, 
 
 v. Boyes, 
 Aveling v. Knipe, 
 Averall v. Wade, 
 Aylett v. Ashton, 
 
 Bacon v. Jones, 
 
 v. Spottiswoode, 
 Badcock, Re, 
 Bailey v. Richardson, 
 
 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. M;\nnin, 
 v. Montgomery, 
 
 289 
 . 42 
 . 246 
 35 
 
 . 270, 273 
 46, 91 
 
 . 218, 357 
 . 219 
 . 297 
 . 112 
 . 219 
 
 . 195, 359 
 353, 355, 410 
 . 390 
 44, 45 
 . 179 
 . 164 
 . 377 
 45, 184 
 . 126 
 . 156 
 . 283 
 
 . 288, 289 
 . 255 
 . 183 
 . 49 
 
 Ballard v. White, . . 386,387 
 Balmain v. Shore, . . . 245 
 Balmanno v. Lumley, . . 380 
 Bamford v. Bamford, . . 390 
 Bampton v. Birchall, . 408, 413 
 Bannatyne v. Leader, . . 15 
 Barfield v. Kelley, . . .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 
 Barnesdala v. Lowe, ... 35 
 Barrett v. Tickel, . . .356 
 Bartlett v. Bartlett, . . .351 
 v. Gillard, . . .21 
 Bartley v. Bartley, ... 16 
 Barry v. Wrey, . . . .115 
 Bartle v. Wilkins, . . .115 
 Basset v. Nosworthy, 149, 151, 162 
 Bastard v. Clarke, . . . 413 
 Bate v. Bate, .... 18 
 Bateman v. Willoe, . . .197 
 Bath, Earl of, v. Sherwin, . 202 
 Batty v. Chester, . . .175 
 Bayley v. Leominster, Corpora- 
 tion 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 . Gilbert, . . .385 
 
 v. Carpenter, . . 25 
 
 Beckford v. Wade, ... 63 
 
 Belcher v. Varden, . . . Ill 
 
 Belchier v. Butler, . . . 162 
 
 Belfast, Earl of, v. Chichester, . 24 
 
 Bell v. Cureton, . . 31,302 
 
 v. Dunmore, . . . 347 
 
 v. Phyn, . . . .246 
 
 v. Whitehead, . . .215 
 
 Bellamy v. Sabine, . . 157, 175 
 
 Bellwood v. Wethcrell, . . 9 
 
 Benan v. Rnfford, . . .212 
 
 Benbow v. Townsend, . . 28 
 
 Bennett v. Colley, ... 55 
 
 Ex parte, ... 61 
 
 v. Ingoldsby, . . 167 
 
 v. Smith, ... 77 
 
 Benson v. Baldwin, . . . 238 
 
 Bent v. Young, .... 19 
 
 Bentley v. Bates, . . . 247
 
 TABLE OF ENGLISH CASES. 
 
 XIX 
 
 Bentinck r. Willink, . 196, 359 
 Benyon v. Nettlefield, . . 3, 20 
 Beresford v. Archbishop of Ar- 
 magh, 46 
 
 Beresford v. Driver, . . 12, 14 
 Berkeley v. Rider, . . . 347 
 Berkhampstead Free School, Ex 
 
 parte, 75 
 
 Bernal v. Donegal, . . . 361 
 Bernard v. Drought, . . .160 
 Berney r. Sewell, . . 122, 353 
 BeschY Frolick, . . .243 
 Belts t\ Menzies, ... 6 
 Biddulph'sandPoole'sTrusts,Re, 290 
 Biederman v. Seymour, . . 262 
 Bignold v. Audland, . . 205, 206 
 v. Springfield, . . 39!) 
 Bilbie v. Lumley, . . .189 
 Bill v. Cureton, . . 31,302 
 
 Binns v. Parr, .... 351 
 Birkett v. Hibbert, . . .288 
 Birkley v. Presgrave, . . 271 
 Birley v. Chorlton, . . .212 
 Birmingham v. Kirwan, . . 94 
 Bishop v. Church, . . .172 
 
 B. J., Re, 292 
 
 Blachford v. Christian, . . 183 
 
 v. Kirkpatrick, . . 87 
 
 Blackburn v. Stables, . . 42 
 
 v. Staniland, . . 414 
 
 v. Warwick, . .112 
 
 Blacket v. Lamb, ... 94 
 
 Blackeney v. Dufaur, . . 243 
 
 Blackie v. Clarke, . . .177 
 
 Blacklows v. Law, ... 45 
 
 Blain v. Agar, . . . .317 
 
 Blair v. Bromley, . 173, 174, 177 
 
 Blake 0/White, . . .107 
 
 Blakemore v. Glamorgan Canal 
 
 Company, . . 211, 212, 218 
 Bland r. Winter, . . .319 
 Blandy v. Widmore, . . . 105 
 Blaydes r. Calvert, . . . 360 
 Blenkinsopp v. Blenkinsopp, . 180 
 Bligh r. Brent, .... 245 
 Bloffeld v. Payne . . .217 
 Blomfield . Eyre, . . .281 
 Blount v. Hipk'ins, . . .265 
 Blundell v. Gladstone, . . 199 
 v. Winsor, . . . 242 
 Blunden v. Desart, . . . 164 
 Boehm v. Wood, . 354, 360, 361 
 Bolton v. Liverpool, Corporation 
 
 of, 15 
 
 Bond, Ex parte, . . . 288 
 
 v. Hopkins, . . . 228 
 
 v. Kent 128 
 
 Booth r. Booth, ... 59 
 
 v. Creswicke, . . 400, 408 
 
 Bootle v. Blundell, . 250, 377, 378 
 Bor v. Bor, .... 95 
 Borell v. Dann, . . 79, 159 
 Boschetti v. Power, . . . 351 
 Bostock r. North Stafford R. R., 211 
 Boughton v. James, . . . 265 
 v. Boughton, . . 263 
 Boultbee v. Stubbs . . .107 
 Boulter v. Boulter . . .198 
 Bouverie v. Prentice, . . 238 
 Bower v. Cooper, ... 79 
 Bowes v. Feme, ... 15 
 Bowles v. Orr . . . .221 
 
 v. Weeks, ... 39 
 Boys v. Ancell, . . .108 
 
 Boyse v. Colclough, . . 249 
 
 v. Rossborough, . . 249 
 Bozon v. Farlow, ... 82 
 Bradbury v. Manchester, &c., R. 
 
 R., 218 
 
 Brace v. Blick, . . . .373 
 0. Maryborough, Duchess 
 
 of, . . . 162, 164 
 v. Whenert, ... 83 
 Braddick v. Thompson, . . 193 
 Bramwell v. Halcomb, . . -215 
 Brandon v. Brandon, . 397 
 
 v. Robinson, --. .42 
 Braybrooke v. Meredith, . . 54 
 Breadalbane v. Chandos, . 170 
 
 Brealey v. Collins, ... 84 
 Breeze v. English, . . .382 
 Brenan v. Preston, . . . 233 
 Brice v. Stokes, . . 58, 62 
 
 Bridge. Re, .... 293 
 
 v. Bridge, ... 80 
 Bridges r. Stephens, . . 209 
 
 Bridget v. Hames, . . . 317 
 Bridgewater, Duke of, v. Edwards, 238 
 Briggs v. Penny, . . 29, 31 
 Bright v. Hutton, . . . 239 
 Bristed v. Wilkins, . . .133 
 Bristow v. Warde, ... 93 
 Broadhurst v. Balguy, . 59, 382 
 Brocklehurst v. Jessop, . . 125 
 Brodie v. Barry, ... 93 
 Bromfield, Ex parte, . . .143 
 Bromley v. Smith, . . . 321 
 Brooke t>. Hereford, Lord . 230, 232 
 
 v. Greathed, . .122, 353 
 
 Lord v. Rounthwaite, . 91 
 Brookfield v. Bradley, . 121, 285 
 Brookes v. Burt, . . . 315 
 Brooks v. Stuart, . . 107, 319 
 Broom v. Broom, . . . 245 
 Broome v. Monck, . . . 141 
 Browell v. Read, . . . 353 
 Brown v. Bamford, ... 45 
 
 v. Blount, . 323 
 
 v. Carter, 46
 
 XX 
 
 TABLE OF ENGLISH CASES. 
 
 Brown v. Cole, . . . .110 
 
 v. Higgs, . . 30, 396 
 
 v. Lake, .... 262 
 
 v. Lee, .... 268 
 
 v. Lockhart . . . 115 
 
 v. Tapscott, . . .. 240 
 
 t. De Tastett, . . 249 
 
 v. Weatherby, . .173 
 
 Browne, Re, . . . . 280 
 
 Bruce, Ex parte, . . . 125 
 
 Bruin v. Knott, . . 287, 288, 375 
 
 Brunswick, Duke of, v. Hanover, 
 
 King of, . . . .314 
 
 Brunswick v. Cambridge, . Il r 344 
 Buckland v. Pocknell, . . 128 
 Buckle v. Mitchell, . . 146, 153 
 Buckley v. Barber, . . . 246 
 Buckworth v. Buckworth, . 287 
 
 Bugden v. Bignold, . . . 273 
 Bullock v. Wheatley . . 56 
 
 Bulwer v. Astley, . . 111,270 
 Bunbury v. Btrmbury, . 7, 198 
 
 v. Winter, . . .112 
 Bunn, Ex parte, . . . 370 
 
 Burhridge, Re, . . . . 297 
 Burch v. Coney, . . . 334 
 
 Burges, Re 292 
 
 Burgess v. Burgess, . . .217 
 
 v. Wheate,37, 50, 51, 113, 115 
 
 Buries v. Popplewell, . . 260 
 
 Burley v. Charlton, . . .212 
 
 Burn v. Carvalho, ... 54 
 
 Burnham v. Bennett, . . 142 
 
 Burrell's Case, . . . .146 
 
 v. Egremont, . . . 270 
 
 v. Nicholson, ... 15 
 
 Burrough v. Philcox, . . 30 
 
 Burroughs v. Elton, . . . 252 
 
 v. Oakley, . . 87 
 
 Burton v. Eggington, . . 322 
 
 Butcher v. Butcher, . . .186 
 
 Bullin v. Masters, . . . 378 
 
 Byde v. Masterman, . . 11,306 
 
 Byne v. Vivian, . . .191 
 
 Byrchal v. Bradford, .. 63, 251 
 
 Cadman v. Homer, . . . 84 
 
 Cadogan v. Kennett, . . 147 
 
 Cafe v. Bent, .... 39 
 
 v. Roberts, ... 39 
 
 Calcraft v. Roebuck, . . 87 
 
 v. West, . . .213 
 
 Caldecottv. Griffith, . . 239 
 
 Caldwell v. Van Vlissengen, . 212 
 
 Calvert v. Godfrey, . . .285 
 
 Camp v. Moody, .... 388 
 
 Campbell v.. Mackay, 282, 310, 335 
 
 v. Scott, . . .215 
 
 v, Solomons, . . 206 
 
 Cann v. Cann, .... 24 
 
 Cannings v. Flower, . . 287 
 
 Capel v. Girdler, ... 52 
 Capper v. Spottiswoode, . . 128 
 Carmichael r. Hughes, . . 287 
 Carpmael v. Powes, . . .. 370 
 Carr v. Appleyard, . , . 371 
 Carter v. Boebm, . . . 179 
 Cartwright v. Cartwright, . 45 
 
 Carver v. Bowles, ... 94 
 Carysfoote, Re, ... 297 
 
 Cass v. Cass, .... 372 
 Castellain v. Blumenthal, . 356 
 
 Cathcart v. Lewis, . . . 317 
 Caton v. Lewis, ... 14 
 
 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 
 
 Clapham 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 
 
 , v. Grant, . . .84 
 
 v. Ormonde, Earl of, . 259 
 
 v. Parker, . . . 186 
 
 v. Re, , . . 286, 297 
 
 v. R.oyle, . . .128
 
 TABLE OF ENGLISH CASES. 
 
 XXI 
 
 Clarke's Charity, In re, . . 76 
 
 Clay v. Willis, . . . .256 
 
 Clayton . Cookes, ... 65 
 
 r. Meadows, . . 376 
 
 v. Nugent, . . . 376 
 
 v. Winchelsea, . . 338 
 
 v. Illingsworth, . . 83 
 
 Clayton's Case, . . . 221 
 
 Clementson v. Gandy, . . 95 
 
 Clements . Bowes, . . . 320 
 
 Clermont v. Tasburgh, . . 84 
 
 Clowes v. Beck, . . . 392 
 
 Clifford v. Turrell, . . 83, 382 
 
 Clinan v. Cooke, ... 87 
 
 Close v. Wilberforce, . . 142 
 
 Clough v. Bond, . . 56, 58 
 
 v. Radcliffe, . . 242, 322 
 
 Clowes r. Higginson, . . 85 
 
 Clunn v. Crosts, . . . 408 
 
 Cock v. Richards, . . . 187 
 
 Cockell v. Taylor, . . .174 
 
 Cockerell v. Cholmeley, . . 370 
 
 Cogan v. Stephens, . 33, 138, 392 
 
 Colborn v. Simms, . . .219 
 
 Colclough v. Evans, . . . 413 
 
 Coleman v. Winch, . . . 165 
 
 v. Mellersh, . . 226 
 
 Coles v. Sims, . . . .152 
 
 v. Trecothick, . . 61 
 
 Collard r. Allison, . . .218 
 
 Collett v. Morrison, . . . 169 
 
 Collins v. Archer, . . . 162 
 
 v. Wakeman, . . 33 
 
 Collis v. Robbins, . . . 263 
 
 Collinson v. Wakeman, . . 360 
 
 v. Patrick, . . 80 
 
 Colman v. Croker, . . . 148 
 
 Colombine v. Chichester, . . 83 
 
 Colyer v. Clay, . . . .188 
 
 Coombe, Ex parte, . . . 124 
 
 v. London Corporation 
 
 of, . . . .16 
 
 Coming, Ex parte, . . . 124 
 Commissioners of Donations v. 
 
 Wybrandts, .... 69 
 
 Connop v. Hayward, 21, 226, 382 
 
 Const v. Harris, . . 243, 354 
 
 Coningham v. Plunkett, . . 80 
 
 Cook v. Black, .... 54 
 
 v. Collinridge, . . 245, 24<J 
 
 v. Hutchinson, . . 33 
 
 Cooke P. Clayworth, . . .183 
 
 v. Lamotte, . . . 184 
 
 Cookson v. Cookson, 136, 137, 245 
 
 Coorg v. East Ind. Co., . . 8 
 
 Coope v. Eyre, . . . .239 
 
 v. Twynam, . . . 269 
 
 Cooth v. Jackson, ... 87 
 
 Copis r. Middleton, . . . 269 
 
 Corbyn v. French, . . .71 
 
 i Coslake v. Till, ... 82 
 
 ! Cottom v. Partridge, . . 224 
 
 i Cottingham v. Shrewsbury 313, 403 
 
 | Coulson v. White, . . .210 
 
 Court . Jeffery, . . . 316 
 
 : Courtenay v. Williams, . 223, 387 
 
 v. Courtenay, . . 39 
 
 j Coventry v. Coventry, . . 39 
 
 j Cowell v. Edwards, . . . 268 
 
 Cowtan v. Williams, . . 206 
 
 Cox v. Allingham, . . 372 
 
 Creditors of, . . 254, 256 
 
 Lady, Case of, . . 252 
 
 Crabtree v. Bramble, . . 137 
 
 Crackfelt v. Bethune, . . 64 
 
 Cradock v. Owens, . 51, 139, 263 
 
 v. Piper, ... 61 
 
 Crawford v. Fisher, ... 26 
 
 Crawshay v. Collins, . . 246 
 
 v. Maule, . 241, 245, 247 
 
 v. Thornton, . 203, 205 
 
 Craythorne v. Swinburne, . 269 
 
 Creak v. Capel, .... 351 
 
 Greaser v. Robinson, . . 301 
 
 Creuze v. Hunter, . . . 388 
 
 Croft v. Day, . . . .217 
 
 Crompton v. Wombwell, . . 413 
 
 Crosbie v. Tooke, . . . 177 
 
 Cross v. Cheshire, . " . . 240 
 
 r. Sprigg, . . .106 
 
 Crosse v. Bedingfield, . . 20 
 
 Crossley v. Derby Gas Company, 219 
 
 Crowder v. Tinkler, . . .211 
 
 Crowfoot v. Mander, . . 404 
 
 Crowley's Case, . . . 197 
 
 Cruikshank v. McVicar, . . 309 
 
 Cruttwell v. Lye, . . 217, 246 
 
 Cudd v. Rutter, ... 83 
 
 Gumming, Re, .... 293 
 
 Curd v. Curd, ... 15, 382 
 
 Curling v. Towshend, . . 347 
 
 Curtis v. Curtis, . 234, 235, 236 
 
 Cu>tance v. Bradshaw, . . 246 
 
 Cutler v. Simons, . . . 352 
 
 Cutler's Trust, .... 48 
 
 Dale v. Hamilton, 
 D'Almaine v. Boossy, 
 Daniel v. Skipwith, 
 Darby v. Baines, 
 v. Darby, 
 D'Arcy v. Blake, 
 Darley v. Nicholson, 
 Darthez v. Clemens, . 
 
 . 28, 35, 87 
 . 215 
 . 120 
 . 233 
 . 239 
 . 51 
 . 199 
 226 
 
 Dartmouth v. Holdsworth, . 7 
 
 Daubeny v. Cockburn, . . 185 
 
 Davenport v. Bishopp, . 78, 146 
 
 v. Davenport, . . 208 
 
 Davies v. Davies, . . . 297 
 
 v. Denby, * . .112
 
 XX11 
 
 TABLE OF ENGLISH CASES. 
 
 Davies v. Quarterman, . . 302 
 Davis v. Bluck, .... 416 
 v. Cripps, . . .11 
 v. Bending, . . . 112 
 v. Dowding, . . 121, 285 
 v. Frowd, . . .262 
 v. Humphreys, . ' . 269 
 v. Johnson, . . . 233 
 v. Marlborough, Duke of, 
 
 187, 353 
 
 v. Strathmore, . . 155 
 
 D. Thomas, . . .111 
 
 Dawson v. Paver, . . .212 
 
 Re, . . . . 292 
 
 v. Jay, . . .282 
 
 v. Lawes, . . . 268 
 
 Day v. Merry, . . . .209 
 
 Deacons. Smith, ... 36 
 
 Dearie v. Hall, . . 53,56,161 
 
 Dearman v. Wych, . . . 397 
 
 De Beauvoir v. De Beauvoir, . 138 
 
 De Costa v. Scandret, . .1*79 
 
 Decks v. Strutt, . . . 250 
 
 Deerhurst, Lord, v. St. Albans, 
 
 Duke of, .... 42 
 Deering v. Winchelsea, Earl of, 
 
 268, 269 
 
 Deeth v. Hale, . . . .137 
 De Manneville v. De Manneville, 
 
 281, 283 
 
 Dent v. Bennett, . . .185 
 Denton v. Davis, . . . 144 
 Denysv. Locock, . . 338,340 
 v. Shruckburgh, . . 191 
 Derby, Earl of, v. Athol, Duke of, 19 
 Derbyshire v. Home, . . 402 
 
 Desborough v. Harris, . . 203 
 De Themmines v. De Donneval, 71, 73 
 De Vaynes v. Morris, . . 407 
 
 Devon, Duke of, v. Eglin, . . 320 
 Devonshire v. Newenham, . 315 
 Dietrichsen v. Cabburn, . . 82 
 Dickinson v. Grand Junction 
 
 Canal Co., . . . .207 
 Dickson v. Gayfere, . . .136 
 Digby, Ex parte, . . .297 
 Dikes, Ex parte, . . .297 
 Dillon v. Coppin, ... 80 
 v. Parker, ... 96 
 
 Dilly v. Doig 200 
 
 Dimes v. Steinburg, . . 248, 353 
 Dinwiddie v. Bailey, . .221 
 
 Dixon v. Wyatt, ' . . - . 410 
 Dobson v. Land, . . .118 
 Docker v. Somes, ... 64 
 Dodd v. Lydall, . . .223 
 
 Doddington v. Hallett, . . 268 
 Doe v. Lewis, .... 146 
 v. Manning, . . . 146 
 v. Rolfe, . . . .146 
 
 Doe v. Rusham, . . . 146 
 
 v. Jones, .... 52 
 Doloret v. Rothschild, . . 83 
 Donaldson v. Beckett, . . 213 
 Donovan v. Needham, . . 103 
 Dos Santos v. Frietas, . . 9 
 Downe v. Morris, . . .113 
 Downes v. Grazebrook, . . 61 
 Downshire, Marquis of, v. Sandys, 209 
 Drake v. Drake, . . .401 
 
 v. Martyn, ... 58 
 Druce v. Denison, ... 95 
 Drummond v. Pigou, 117, 195, 359 
 Re, . . . . 297 
 Dryden v. Frost, . . .111 
 Dubless v. Flint, . . .351 
 Dubost v. Beresford, . . 216 
 
 Ex parte, . . .103 
 Du Hourmelin 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, . . . 415 
 
 Eades v. Harris, . . . . 408 
 Earle v. Pickin, . . . 305 
 Earnshaw v. Thornhill, . . 358 
 East v. East, .... 21 
 E. I. Company v. Bazett, . . 377 
 v. Boddam, . 168 
 v. Campbell, . 3 
 v. Donald, . 21, 188 
 v. Keighly, . 388 
 v. Vincent, . 150 
 Ede v. Knowles, . . . 147 
 Eden v. Bute, Lord, . . . 399 
 Eddleston v. Collins, . 402, 403 
 v. Vick, . . .217 
 Edsell v. Buchanan, . . . 335 
 Edwards v. Abrey, . . . 297 
 . Brown, . . . 187 
 v. Burt, . . .186 
 v. Edwards, . . 303 
 v. Grand Junction Rail- 
 way, . . 79, 92
 
 TABLE OF ENGLISH CASES. 
 
 XX111 
 
 Edwards v. Jones, . . 80, 356 
 
 v. McLeay, . . .178 
 
 r. Martin, . . .121 
 
 v. Meyrick, . . .184 
 
 Egerton v. Browulow, . . 42 
 
 v. Jones, . . . 387 
 
 Eland v. Eland, . . .156 
 
 Elgie v. Webster, . . .240 
 
 Elias. Matter of, ... 294 
 
 Elibank v. Montolieu, . . 48 
 
 Ellard v. Cooper, . . .275 
 
 Elliot v. Cordell, ... 49 
 
 v. Turner, . . . 109 
 
 Elliott v. Merryman, . . . 156 
 
 Ellis v. Lewis, .... 94 
 
 Ellison v. Elwin, . . .142 
 
 Emerson v. Harland, . . 338 
 
 Empringham v. Short, . 199, 385 
 
 England v. Downs, . . 182, 383 
 
 England, Mary, Re, . . . 288 
 
 Errington v. Aynesley, . . 83 
 
 Esdaile v. Stephenson, . . 89 
 
 Etty v. Bridges, . . .161 
 
 Evans v. Bicknell, . . 151, 174 
 
 v. Brown, . . . 264 
 
 v. Cogan, . . . 263 
 
 v. Stokes, . . .321 
 
 Evelyn v. Evelyn, . . . 265 
 
 v. Lewis, . . . 199 
 
 Exton v. Scott, .... 80 
 
 Eyre v. Countess of Shaftesbury, 281 
 
 f. Everitt, . . .107 
 
 v. Marsden, . . . 138 
 
 Eyton v. Mostyn, . . 196, 356 
 
 Fallowes v. Williamson, . . 414 
 Fairthorne v. Weston, . . 241 
 Farina v. Silverlock, . . 378 
 
 Farquharson v. Seton, . 313, 403 
 Farr v. Pearce, .... 246 
 Farwell v. Coker, . . . 189 
 Faulder v. Stuart, ... 11 
 Faulkner v. Daniel, . . 112, 270 
 Featherstonehaugh v. Fenwick, 
 
 60, 241, 245 
 
 Fell v. Brown, . . . .323 
 Fellowes v. Gwydyr, Lord, . 177 
 Fencott v. Clarke, . . . 350 
 Fenns v. Craig, . . . 179, 321 
 Fenn v. Edmonds, . . . 206 
 Fenner v. Taylor, ... 49 
 Fenton v. Brown, . . . 392 
 Fenwick v. Reed, . . . 126 
 Fereday v. Wightwick, . . 247 
 Fermor, Ex parte, . . . 293 
 Few v. Guppy, .... 357 
 Field, Ex parte, . . .272 
 
 Fight v. Bolland, . . .82 
 Fildes v. Hooker, ... 91 
 Finch v. Finch, . . . 100 
 
 Finch v. Shaw, . . 151, 162 
 
 Fisher v Fisher, . . . 365 
 
 Fisk v. Norton, . . .379 
 
 Fitch v. Weber, . . .138 
 
 Fitzgerald, Re, . . . 291, 298 
 Fitzpatrick v. Nowlan, . . 82 
 Flack v. Holm, . . . 360 
 
 Flamank, Ex parte, . . . 136 
 Flavell v. Harrison, . . . 217 
 Fleming v. Buchanan, 99, 263, 276 
 Fletcher v. Ashburner, . 136, 137 
 v. Fletcher, ... 80 
 Flight v. Bolland, ... 82 
 Flint v. Brandon, ... 83 
 v. Warren, ... 32 
 Flower v. Hartopp, . . . 386 
 Foley v. Hill, . 20, 226, 338, 339 
 Folland v. Lomotte, . . . 406 
 Forbes v. Peacock, . . . 156 
 Ford v. Dolphin, ... 15 
 Fordham v. Wallis, . . 269, 275 
 Fortescue v. Barnett, . .80 
 Forth v. Norfolk, Duke of, . 129 
 Foss v. Harbottle, . . . 335 
 Foster v. Alanson, . . . 240 
 
 v. Cockrell, . . 53, 161 
 
 v. Handley, . . . 254 
 
 Fourdrin v. Gowdey, . . 138 
 
 Fowler v. Garlike, . .33 
 
 Frampton v. Frampton, . . 45 
 
 Freeman v. Baker, . . .178 
 
 v. Fairlie, . . 57, 351 
 
 v. Lomas, . . . 223 
 
 v. Tatham, ... 21 
 
 Frelland v. Stansfield, . . 243 
 
 Frere v. Greene, ... 24 
 
 v. Moore, . . .162 
 Frewin v. Lewis, . . . 212 
 Frowd v. Lawrence, . . . 198 
 Fuller v. Bennett, . . .157 
 
 v. Knight, ... 62 
 Fulton v. Gilmore, . . . 347 
 Fyler v. Fyler, .... 62 
 
 Gaffee's Trust, .... 44 
 
 Garcias v. Ricardo, . . . 401 
 
 Garden v. Ingram, . . .118 
 
 Gardner v . Blane, . . . 284 
 
 v. Lachlan, . . 54, 161 
 
 t>. Marshall, . . 49 
 
 t>. McCutcheon, . . 357 
 
 v. Rowe, ... 28 
 
 v. , . . .360 
 
 Garmstone v. Gaunt, . . 285 
 
 Garrard v. Lauderdale, Lord, . 31 
 Gartside v. Outram, 6 
 
 Gaskell v. Gaskell, . . 230, 316 
 Gaylor v. Fitzjohn, . . . 385 
 Gee v. Pritchard, . . 213, 216 
 George v. Milbank, . . . 146
 
 XXIV 
 
 TABLE OF ENGLISH CASES. 
 
 Gervis v. Gervis, . . . 265 
 
 Greenwood v. Evans, 
 
 . 55 
 
 Gibbs v. Glamis, ... 31 
 
 v. Taylor, 
 
 . 121, 272 
 
 Gibson v. Bell, . . . .223 
 
 v. Wakeford, 
 
 39, 62 
 
 v. D'Este, . . .178 
 
 Gregory v. Gregory, . 
 
 58 
 
 Giffard v. Hort, . . 399, 412 
 
 v. West, 
 
 . 386 
 
 Gilbee v. Gilbee, . . . 291 
 
 Gretton v. Haward, 79, 92 
 
 , 96, 97.285 
 
 Gillespie v . Alexander, . - . 262 
 
 Grey v. Grey, 
 
 . 102 
 
 Gillett v. Peppercorne, . . 184 
 
 Griffith v. Ricketts, . 
 
 31, 407. 414 
 
 Gilpin v. Southampton, . . 259 
 
 Grimstone, Ex parte, 
 
 . 291 
 
 Gingell v. Home, . . .249 
 
 v. Gaunt, . 
 
 . 285 
 
 Glasscott v. Lang. . . . 176, 198 
 
 Grinnell v. Cobbold, . 
 
 23 
 
 Glascott v. Copperminers' Co. 
 
 Grugeon v. Gerrard, . 
 
 . 165 
 
 9, 20, 314 
 
 Gwydir, Lord, Ex parte, 
 
 . 293 
 
 Glassington v. Thwaites, . 241, 333 
 
 t 
 
 
 Glendinning, Ex parte, . . 107 Habershon v. Blurton, 
 
 . 242 
 
 Glengall v. Fraser, . . .12 Hale v. Hale, 
 
 . 243, 354 
 
 Gloucester, Corp. of, v. Wood, . 401 
 
 Halford v. .Gillow, . 
 
 . 198 
 
 Glyn v. Duesbury, . . . 204 
 
 Hall, Ex parte, . 
 
 . 292, 293 
 
 Glynri v. England, Bank of, . 168 
 
 Hall & Hinds, Re, 
 
 . 192 
 
 Goddard, Re, . . . .117 
 
 v. Hall, 
 
 . 243 
 
 v. Snow, . . . 182 
 
 v. Hardy, 
 
 . 192 
 
 Goldsmid v. Goldsmid, . . 105 
 
 v. Hill, 102, 103, 104, 105, 106 
 
 Gooch's Case, .... 146 
 
 v. Jenkinson, 
 
 . 354 
 
 Goodall v. Little, . 6, 7, 17 
 
 v. Laver, 
 
 . 387 
 
 Goodev. Burton, . . .126 
 
 Hallett v. Bousneld, . 
 
 . 271 
 
 Goodson v. Ellison, . . 69,318 
 
 Halliday's Est.. Re, . 
 
 . 284 
 
 Goodman v. Sayers, . . 193 
 
 Halliwell v. Tanner, . 
 
 . 24 
 
 v. Whitcomb, 241, 243, 354 
 
 Halsey t>. Halsey, 
 
 . 288 
 
 Gordon v. Atkinson, . 33, 138 
 
 Hambrook v. Smith, . 
 
 5 
 
 v. Gordon, . . 179, 189 
 
 Hamilton v. Houghton, 
 
 . 416 
 
 v. Graham, . .110, 164 
 
 v. Marks, . 
 
 . 203, 205-6 
 
 Re, . . .292 
 
 v. Royse, . 
 
 . 273 
 
 v. Simpkinson, . . 236 
 
 v. Watson, 
 
 . 179 
 
 Gore v. Bowser, ... 6 
 
 v. Wright, . 
 
 . 59 
 
 v. Gibson, . . . 183 
 
 Hammond v. Messenger, 
 
 . 303 
 
 Gosling v. Carter, . . . 255 
 
 Hampshire v. Bradley, 
 
 59 
 
 Goss v. Nugent, Lord, . 84, 87 
 
 Hampson v. Hampsou, 
 
 . 377 
 
 Goulson v. White, . . . 210 
 
 Hanby v. Robers, 
 
 -7i> 
 
 Graham v.-Coape, . . . 333 
 
 Hansard v. Robinson, 
 
 . 168 
 
 v. Oliver, ... 91 
 
 Hanson v. Keating, 
 
 48, 191 
 
 Grant v. Grant, . . . 361 
 
 Hardman v. Ellames, 
 
 . 17 
 
 Re, .... 384, 387 
 
 Harday v. Hawkshaw, 
 
 . 136 
 
 v. Lynam, ... 30 
 
 Hare v. Hale, 
 
 . 243 
 
 Gray v. Downman, . . . 173 
 
 Hares v. Stringer, 
 
 . 318 
 
 v. Haig, .... 403 
 
 Hargrave v. Hargrave, 
 
 . 82 
 
 Great North of England Junc- 
 
 Harland v. Binks, 
 
 . 31 
 
 tion Railways. Clarence Rail- 
 
 v. Emerson, 
 
 . 338 
 
 way, . . . . .218 
 
 Harman v. Jones, 
 
 218, 357 
 
 Great Northern R. R. v. Man- 
 
 Harmer v. Gooding, . 
 
 . 320 
 
 chester R. R., ... 207 
 
 Harmood v. Oglander, 
 
 . 262, 378 
 
 Greedy v. Lavender, ... 49 
 
 Harries v. Bryant, 
 
 89 
 
 Green v. Bridges, . . . 106 
 
 Harris v. Davison, 
 
 . 132 
 
 v. Green, . . 79, 92 
 
 v. Harris, 
 
 . 339 
 
 v. Holden, . . .117 
 
 Harrison v. Gurney, . 
 
 . 198 
 
 v. Pledger, ... 20 
 
 v. Heathorn, 
 
 . 242 
 
 v. Weaver, ... 5 
 
 v. Nettleship, 
 
 . 197 
 
 Greenlaw v. King, ... 7 
 
 Hart v. Alexander, 
 
 . 173 
 
 .Greenough v. Gaskell, . . 6 
 
 Hartwell v. Chitters, . 
 
 . 256 
 
 Greenway, Ex parte, . .168 
 
 Harvey v. Harvey, 
 
 . 320 
 
 Greenwood v. Atkinson, . . 347 Hastings, Ex parte, . 
 
 . 297
 
 TABLE OF ENGLISH CASES. 
 
 XXV 
 
 Hatch v. . . 
 
 Hawkins. Ex parte, . 
 
 r. Gathercole, 
 v. Hawkins, 
 v. Lawse, . 
 Haves, 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, 
 Hercy v. Birch, . 
 Hereford v. Kavenhill, 
 Herring v. Cloberry, . 
 Hertfort v. De Zichi, . 
 
 Re, 
 
 Hewitt r. Loosemore, 
 Hickling v. Boyer, 
 Higgins v. Joyce, . 
 Higginson v. Clowes, . 
 Hill v. Barclay, . 
 v. Crolls. 
 v. Gomme, . 
 . Thompson, 
 Hills v. Downton, 
 Hilton v. Granville, . 
 Hindson r. Weatherill, 
 Hindman v. Taylor, . 
 Hine v. Dood, 
 Hinves v. Hinves, 
 Hitchcock v. Giddings, 
 Kitchens t>. Coflgreve, 
 Hithcox v. Sedgwick, 
 Hobhouse v. Courtenay, 
 Hobson f. Blackburn, 
 v. Ferraby, . 
 Hockley v. Bantock, . 
 Hodgens v. Hodgens, . 
 Hodle v. Healey, 
 Hodgson v. Shaw, 
 Hodson v. Ball, 
 Boggart v. Cutts, 
 Holder v. Chamburry, 
 Holdich r. Holdich, . 
 Holdin v. Durbin, 
 Holford v. Phipps, 
 Holland v. Baker, 
 Holloway v. Holloway, 
 Millard, . 
 Holmes v. Baddeley, . 
 v. Coghill, 
 Re, 
 Holt v. Dewell, . 
 
 218, 
 
 415, 
 
 . 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 
 . 151 
 . 261 
 . 179 
 . 172 
 . 109 
 . 82 
 . 283 
 . 218 
 . 101 
 
 3. r >6, 357 
 
 184, 248 
 19, 339 
 . 153 
 . 57 
 . 188 
 
 321, 409 
 . 157 
 . 324 
 . 277 
 . 289 
 . 125 
 49, 288 
 . 119 
 . 269 
 
 416, 417 
 
 . 204 
 
 . 238 
 
 94 
 
 . 39 
 59 
 
 . 415 
 
 . 217 
 
 . 147 
 
 7 
 
 . 100 
 . 292 
 . 161 
 
 ! Holyladd, Ex parte, . . .292 
 Hood P. Pimm. .... 372 
 Hooper . Brodrick, . . . 218 
 
 Ex parte, . . 123, 124 
 Hope v. Hope, . . . .24 
 Horlock v. Smith, . . .119 
 Horncastle v. Charlesworth, 
 
 230, 231, 232 
 
 Horner's Est., Re, . . . 136 
 
 Hoste v. Pratt, . . . .287 
 
 Houghton, Ex parte, ... 33 
 
 v. Houghton, . . 245 
 
 Houldjtch v. Collins, . . .134 
 
 v. Donegal, . . 410 
 
 Housefield, Ex parte, . . . 123 
 
 Hovenden v. Annesley, 63, 176, 228 
 
 How . Broomsgroove, . . 200 
 
 v. Vigues, .... 120 
 
 Howard r. Digby, ... 46 
 
 v. Harris, . . .112 
 Howden v. Rogers, . . . 360 
 Howe r. Dartmouth, Lord, . 57 
 Howell v. George, . . .21 
 Hudson v. Maddison, . . .211 
 Hughes v. Eades, . . . 372 
 
 v. Garner, . . . 397 
 
 v. Stubbs, . . 31, 80 
 Huguenin v. Basely, . 176, 185, 354 
 Hungate v. Gascoyne, > . 417 
 Hunt v. Penrice, . . . 338 
 Hunter v. Atkins, . . . 185 
 v. Daniel, ... 54 
 Hurst P. Beach, . . . 103, 104 
 Hutchinson v. Sheperton, . . 192 
 Hyde v. Whitefield, . . .360 
 
 Ibbetson v. Ibbetson, . . . 265 
 Incorporated Society v. Richards, 
 
 69, 75 
 
 Inge, Ex parte, .... 75 
 Inman v. Whitney, ... 14 
 Innes v. Jackson, . . . 174 
 v. Sayer, . , . .97 
 Ireson v. Denn, .... 165 
 Irnham v. Child, . . . 170 
 Irvin P. Young, .... 227 
 
 Jack v. Burnett, . 
 Jackman v. Mitchell, . 
 Jackson v. Leaf, 
 
 t'. Petrie. 
 
 v. Stopherd, . 
 Jacob v. Lucas, . 
 Jacobs P. Richards, . 
 Jacques v. Chambers, 
 James v. Dean, . 
 Ex parte, 
 Janson v. Solarte, 
 J. C.. Ex parte. . 
 Jefferys r. Jefferys. 
 
 . 71 
 . 180 
 198, 260 
 . 360 
 . 240 
 . 302 
 . 183 
 . 265 
 . 60 
 . 59 
 9 
 
 280 
 78
 
 XXVI 
 
 TABLE OF ENGLISH CASES. 
 
 Jefferys v. Smith, 
 Jefferyes v. Purday, 
 Jeffs t>. Wood, . 
 Jenkins v. Bryant, 
 v. Cross, 
 v. Hilles, 
 v. Parkinson, 
 Jennings v. Broughton, 
 v. Patterson, 
 Jervis v. White, . 
 Jervoise v. Northu 
 
 of, . 
 v. Silk, . 
 
 Jessop v. Watson, 
 Jew v. Wood, 
 Jodrell v. Jodrell, 
 Johnson v. Child, 
 
 v. Compton, 
 v. Curtis, 
 v. Johnson, 
 v. Legard, 
 Johnston v. Beattie, 
 
 v. Rowlands, 
 Jolland v. Stainbridge, 
 Jones v. Alephsin, 
 v. Beach. 
 v. Gilham, 
 v. Goodrich, 
 v. Howells, 
 v. Jones, . 
 v. 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, 
 Kekewick v. Manning 
 Kelly v. Hooper, 
 v. Jackson, 
 Kemble . Farren, 
 
 v. Kean, 
 
 Kemp v. Pryor, . 
 Kendall, Ex parte, 
 
 v. Granger 
 Kennedy v. Green, 
 
 v. Lee, 
 
 Kennington v. Houghton 
 Kent v. Burgess, 
 v. Jackson, 
 Keppell v. Bailey 
 
 . 247 
 
 354, 356 
 
 Kerr v. Dungannon, Lord, . 
 
 . 159 
 
 , ^ 
 
 . 215 
 
 v. Rew, 
 
 20, 314 
 
 . . 
 
 . 105 
 
 v. Wauchope, 
 
 . 97 
 
 . . 
 
 . 385 
 
 Kerrich v. Bransby, . 
 
 . 250 
 
 B 
 
 . 412 
 
 Keys v. Williams, 
 
 . 125 
 
 . . 
 
 84 
 
 Kidd v. Cheyne, 
 
 . 419 
 
 > 
 
 - 81, 360 
 
 Kidney v. Coussmaker, 
 
 95, 147 
 
 jn, . 
 
 . 176 
 
 Kilminster v. Pratt. . 
 
 . 409 
 
 Q > 
 
 . 258 
 
 Kimberly v. Jennings, 
 
 . 207 
 
 
 179, 351 
 
 Kincaid's Trust, . 
 
 48 
 
 3erland, 
 
 Duke 
 
 King v. Mullin, . 
 
 59 
 
 
 42, 84 
 
 v. Daccombe, 
 
 50 
 
 
 . 287 
 
 v. Denison, 
 
 33 
 
 . 
 
 . 140 
 
 v. Hamlet, . . 186, 
 
 187, 191 
 
 . 
 
 . 205 
 
 v. Smith, . 
 
 . 114 
 
 . 
 
 45 
 
 v. Wilson, . 
 
 88 
 
 . 
 
 . 264 
 
 King of Sicilies v. Wilcox, 
 
 . 2,3 
 
 
 
 . 257 
 
 Kirby v. Barton, 
 
 . 260 
 
 
 . 226 
 
 v. Marsh, . 
 
 61 
 
 . 
 
 48, 90 
 
 Kirk v. Eddowes, 
 
 103, 104 
 
 
 146, 147 
 
 Kirby Ravensworth Hospital, 
 
 Ex 
 
 281 
 
 , 282, 291 
 
 parte, .... 
 
 75 
 
 s, . 
 
 . 31 
 
 Kirwan v. Daniel, 
 
 . 73 
 
 ?e, 
 
 . 155 j Knatchbull v. Fearnhead, . 
 
 . 257 
 
 
 ' . 361 
 
 v, Grueber, 
 
 87, 90 
 
 
 172, 173 
 
 Knight v. Boughtoq, . 
 
 29, 31 
 
 . 
 
 . 206 
 
 v. Davis, 
 
 . 265 
 
 . 
 
 . 354 
 
 v. Knight, 
 
 . 319 
 
 
 . 415 
 
 v. Majoribanks, 
 
 . 61 
 
 53, 161 
 
 , 162, 270 
 
 v. Waterford, . 
 
 . 23G 
 
 . 
 
 . 176 
 
 Knollys v. Shepherd,. 
 
 . 141 
 
 . . 
 
 . 174 
 
 Knott v. Cottee, . 
 
 . 31 
 
 . 
 
 . 105 
 
 Ex parte, . 161, 
 
 162, 164 
 
 . 
 
 . 223 
 
 Knox v. Symonds, 
 
 . 193 
 
 . . 
 
 . 243 
 
 
 
 . . 
 
 6 
 
 LadyThynn v. Earl Glengall, 
 
 104, 105 
 
 . 
 
 159, 165 
 
 Lacey, Ex parte, 
 
 59, 61 
 
 
 . 250 
 
 Lake v. Skinner, 
 
 . 373 
 
 . 
 
 230, 231 
 
 Lambert v. Hutchinson, 
 
 . 302 
 
 . 
 
 58 
 
 Lancashire v. Lancashire, . 
 
 . 375 
 
 . 
 
 . 162 
 
 Lancaster v. Evors, . 
 
 10, 17 
 
 
 
 Re, ... 
 
 . 301 
 
 . 
 
 93, 94 
 
 Lanchester v. Thompson, . 
 
 . 321 
 
 . 
 
 218, 340 
 
 Lane'v. Dighton, 
 
 64, 144 
 
 . 
 
 . 287 
 
 v. Newdigate, . 
 
 . 218 
 
 . 
 
 . 393 
 
 v. Paul, . 
 
 . 350 
 
 S, 
 
 53, 55, 80 
 
 Re, .... 
 
 . 286 
 
 
 . 392 
 
 Langley v. Fisher, 153,370, 
 
 406, 407 
 
 . 
 
 6 
 
 LangstafTe v. Fenwick, 
 
 . 112 
 
 . 
 
 . 108 
 
 Langston v. Ollivant, 
 
 56 
 
 . 
 
 82, 207 
 
 v. Walker, . 
 
 . 56 
 
 . 
 
 . 179 
 
 Langton v. Horton, . 55, 
 
 149, 203 
 
 . 
 
 . 272 
 
 Lansdowne v. Lansdowne, 
 
 . 376 
 
 
 67 i Larkins v. Paxton, 
 
 261, 390 
 
 . 
 
 16, 157 Latimer v. Neale, 
 
 15, 17 
 
 
 
 . 363 
 
 hton, . 
 
 . 222 Lawless v. Shaw, 
 
 31 
 
 . 
 
 . 288 Lawrence v. Smith, . 
 
 . 216 
 
 . 
 
 . 320 
 
 Lawton v. Campion, . 
 
 . 189 
 
 . 
 
 . 152 
 
 Leaf v. Coles, 
 
 243, 292
 
 TABLE OF ENGLISH CASES. 
 
 XXV11 
 
 Leathart v. Thome, . . . 320 
 
 Lechmere v. Brasier, . . . 372 
 
 Lee v. Lee, . . 407, 409, 416 
 
 v. Milner, . . . .212 
 
 v. Pain, .... 103 
 
 v. Park, . . . .260 
 
 v. Reed, . . . . 4, 5 
 
 v. Willcox, . . . 384 
 
 Leeds v. Amherst, . . . 209 
 
 v. Duke of, v. New Radnor, 238 
 
 Le Grand v. Whitehead, . . 388 
 
 Leith v. Irvine, .... 112 
 
 Lenaghan v. Smith, . . . 318 
 
 Lench v. Lench, . . . 144 
 
 Le Xeve v. Le Neve, 
 
 151, 153, 157, 158 
 
 Leo v. Lambert, . . . 361 
 
 Leonart v. Baker, . . .151 
 
 v. Leonard, . . 189 
 
 Lewellyn v. Cobbold, . . 180 
 
 Lewis v. Davies, ... 12 
 
 v. Fullarton, . . . 215 
 
 v. Hillman, ... 61 
 
 v. Langdon, . . . 246 
 
 v. Haddocks, . . . 144 
 
 v. Zouche, . . . 315 
 
 Lichfield v. Bond, ... 3 
 
 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. Liversey, . . 387 
 
 Llewellyn v. Badely, . . . 9, 15 
 
 Lloyd v. Jenkins, . . . 357 
 
 v. Johnes, . 316, 411, 412 
 
 v. Mason, ... 49 
 
 v. Passingham, . . 355 
 
 v. Spillets, ... 35 
 
 v. Wait, .... 376 
 
 v. Williams, ... 49 
 
 Locke v. Colmau, . . . 377 
 
 Lockhart v. Hardy, . 117,120,264 
 
 Lockwood v. Fenton, . . 282 
 
 Lodge v. Lyseley, . . . 149 
 
 London, City of, v. Mitford, . 89 
 
 v. 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 
 
 Lovell v. Hicks, . . . 399 
 
 Lovegrove v. Cooper, . 253, 256 
 
 Low v. Carter, . ... . 257 
 
 Lowe v. Williams, . . . 12 
 Lowes v. Lowes, ... 94 
 Lowndes v. Cornford, . . 201 
 v. Davies, ... 9 
 Ludlow, Corporation of, v. Green- 
 house, . . . . 63, 76 
 Luffkin v. Nunn, . . 153, 312 
 Lumley v. Wagner, . . . 207 
 Lumsden v. Fraser, . . . 423 
 Lund v. Blandshard r . .211 
 
 Luptonv. 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 
 
 Mtcbride v. Lindsay, . . 320 
 Macclesfield, Earl of, v. Davis, . 92 
 
 Maccubbin v. Cromwell, . . 58 
 
 Mackenzie v. Johnston, . ,221 
 
 v. Robinson, . 118, 120 
 
 Mackinnon v. Stewart, . . 31 
 
 Mackreth v. Symmons, . 128, 129 
 
 Macloud v. Annesley, . . 318 
 
 Macnamara v. Maquire, . 198, 359 
 
 Magdalen Coll. v. Att.-Gen. . . 69 
 
 Maltland 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 
 
 Man ton 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. Holloway, . . 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 v. Brise, ... 58 
 
 v. Dana, . . . 380 
 
 Maundrell v. Maundrell, . . 1(JO 
 
 Maxwell v. Maxwell, . . 93 
 
 v. Mountacute, . . Ill 
 
 May hew v. Crickett, . . .106 
 Mayor, <fec., of Basingstoke v. 
 
 Ld. Bolton, . . . 237, 238
 
 XXV111 
 
 TABLE OF ENGLISH CASES. 
 
 McCalmont v. Rankin, . 176, 303 
 McDermot v. Kealy, . . . 397 
 McDougal, Ex parte, . . . 298 
 McFadden v. Jenkyns, . 28, 54, 80 
 Mclntosh v. Great Western Rail- 
 way, ... . . .24 
 
 McMahon v. Burchell, 
 
 21, 223, 232, 305, 382 
 Medley v. Hortou, . . . . 45 
 
 Meek v. Kettlewell, . . 55, 80 
 Holland v. Gray, ... 60 
 Mellersh v. Bridger, . . . 742 
 Mergrave v. Le Hook, . . 165 
 Merryweather v. Nixon, . . 268 
 Metcalfe v. Pulvertoft, . . 146 
 Meux v. Bell, . . 161, 205, 384 
 v. Maltby, . . .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 t>. Gow, . . . .382 
 
 v. Warmington, . . 237 
 Miles p. Durnford, . . .251 
 Miligan v Mitchell, ... 18 
 Millington v. Fox, . 217, 392, 393 
 Mills v. Farmer, ... 71 
 
 v. Mills, .... 57 
 
 Milner v. Harewood, . . 289,413 
 Milnes v. Davison, . . .21 
 Mirehouse v. Scaife, . . .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, . . .88 
 Monteith v. Taylor, . . . 409 
 Montfort, Lord, v. Cadogan, Lord, 55 
 Moodie v. Bannister, . . .314 
 Moons v. De Bernales, . 60, 376 
 Moore v. Croft-on, ... 77 
 0. Frowd, ... 61 
 v. Prior, .... 260 
 
 . Usher, . . . 205 
 
 Moores v. Clioat, . . 125, 142 
 
 Morgan v. Annis, . . . 248 
 
 v. Goode, . . . 356 
 
 v. Shaw, . . . 352 
 
 Morley . Bridges, . . . Ill 
 
 Morrett v. Paske, . . 163,165 
 
 Morice v. Durham, Bishop of, . 67 
 
 v. Langham, . . . 376 
 
 Morice v. Swabey, 
 Morrison v. Moat, 
 Morrell v. Wooten, 
 Morris v. McNeil, 
 . v. Morgan, 
 
 v. Morris, 
 
 'Morrison v. Arnold, . 
 Mortimer v. Fraser, . 
 v. Shortall, 
 Mortlock v. Buller, 
 Moss v. Baldock, 
 Mossop v. Eadon, 
 Mostyn v. Spencer, 
 Motley v. Downman, . 
 Mozley v. Alston, 
 Muckleston v. Brown, 
 Muddle v. Fry, . 
 Mullock v. Jenkins, . 
 Munch v. Cockerell, . 
 Mundy v. Joliffe, 
 . v. Mundy, 
 Munoz v. De Tastet, . 
 Murless v. Franklin, . 
 Murray v. Barlee, 
 
 v. Elibank, . 
 
 v. Shadwell, . 
 
 v. Vipart, 
 
 v. Walter, 
 Mutter v. Chanwell, . 
 
 Nairn v. Prowse, 
 Nash v. Morley, 
 Navulshaw v. Brownrigg, 
 Naylor v. Winch, 
 Neale v. Neale, 
 
 14 
 . 216 
 
 15 
 
 . 360 
 . 334 
 
 25 
 
 25 
 
 . 335 
 . 171 
 55, 81 
 . 396 
 . 168 
 368, 370 
 . 217 
 . 321 
 
 33 
 
 . 376 
 . 320 
 317, 318 
 . 87 
 . 234 
 . 322 
 . 102 
 . 46 
 48, 49 
 . 364 
 . 324 
 
 15 
 . 413 
 
 . 129 
 . 67 
 . 222 
 189, 190 
 . 189 
 Neate v. Marlborough, Duke of, 
 
 130, 262 
 
 Nedby v. Nedby, . . .351 
 
 Nelson v. Bridges, . . 81, 413 
 
 v. Bridport, . . . 383 
 
 v. Duncombe, . 290, 291 
 
 Nelthorpe v. Holgate, 84, 91, 177, 315 
 
 Nesbit v. Meyer, ... 82 
 
 Re, 292 
 
 Newburgh v. Newburgh, . .172 
 Newby v. Reed, .... 269 
 Newcastle, Duke of, v. Lincoln, 
 
 Countess of, . . . .42 
 Newcomb v. Bonham, . .112 
 Newlands v. Paynter, . . 149 
 Newton v. Hunt, . . . 187 
 Nichols v. Chalie, . . .193 
 v. Roe, . . . .193 
 Nicholls v. Maynard, . . 109 
 
 Nicholson v. Hooper, . . 150 
 
 v. Wordsworth, . 38 
 
 Nightingale v. Goulborn, . . 67 
 Nokes v. Seppings, . ,. . 350 
 Norcutt v. Dodd, . . 147, 148 
 Norris v. Wilkinson, . . . 125
 
 TABLE OF ENGLISH CASES. 
 
 XXIX 
 
 Northam Bridge Company 
 
 T. 
 
 Southampton Railway Com- 
 
 pany. 
 
 376, 377 
 
 Norway v. Rowe, 
 
 11 
 
 Nunn r. Harvey, 
 
 . 286 
 
 Nurse v. Lord Seymour, 
 
 . 85 
 
 O'Connor v. Spaight, 
 
 . 224 
 
 Oglander r. Oglander, 
 
 . 39 
 
 Okill v. Whittaker, . 
 
 170, 172 
 
 Oldham v. Eboral, : 
 
 . 415 
 
 Oliver . Richardson, 
 
 . 235 
 
 Omerod v. Hardman, 
 
 . 84 
 
 Omrod v. Huth, 
 
 . 178 
 
 Onslow r. Wallis, 
 
 32. 50 
 
 Ord r. Xoel, 
 
 . ' 55 
 
 v. White, . 
 
 . 356 
 
 Osborne v. Harvey, 
 
 . 87 
 
 Ostell v. Le Page, 
 
 . 260 
 
 Ottley v. Pensam, 
 
 385, 386 
 
 Overton v . Bannister, 
 
 . ' 17G 
 
 Owen r. Howtnan, 
 
 . 352 
 
 Owens t'. Dickinson, . 
 
 46, 258 
 
 Oxendon v. Compton, Lord, 
 
 
 143, 
 
 291, 297 
 
 Oxford v. Rodney, 
 
 . 265 
 
 Padbury tv Clark, 
 
 96 
 
 Padwick v~ Hurst, 
 
 222, 226 
 
 v. Stanley, . 
 
 . 222 
 
 Page v. Cox, 
 
 . 246' 
 
 Re, . 
 
 . 301 
 
 Pain r. Smith, . 
 
 . 125 
 
 Palin v. Hathercote, . 
 
 . 213 
 
 Palmer v. Xeave, 
 
 . 180 
 
 Parker v. Fairlie, 
 
 12 
 
 v. Housefield, 
 
 123, 125 
 
 Parke's Charity, In re, 
 
 76 
 
 Parkhurst v. Lowton, 
 
 4, 370 
 
 Parkin v. Thorold, . 
 
 88 
 
 Parr v. Attorney-General, 
 
 . 310 
 
 Parrott r. Sweetland, 
 
 . 128 
 
 Partridge r. Usborne, 
 
 417, 418 
 
 Pastey v. Freeman, . 
 
 . 178 
 
 Paterson v. Scott, . 263, 
 
 275, 276 
 
 Pauli v. Von Mclle, . 
 
 . 205 
 
 Paxton v. Douglass, . 
 
 . 259 
 
 Peace r. Hains, 
 
 . 106 
 
 Peachy v. Somerset, . 
 
 107, 108 
 
 Peacock r. Burt, 
 
 . 161 
 
 r. Evans, 
 
 . 187 
 
 f. Peacock, 
 
 . 241 
 
 Peake v. Highfield, . 
 
 . 174 
 
 Pearce v. Loman, 
 
 . 276 
 
 Pearne r. Lisle, . 
 
 . 360 
 
 Pearse, Ex parte, 
 
 . 124 
 
 v. Green, 
 
 57. 222 
 
 v. Hewitt, 
 
 . 250 
 
 z-. Pearse, 
 
 7 
 
 Pearson, Re, 
 
 295, 298 
 
 Pedley v. Goddard, . . .193 
 
 Pegg "v. "Wisden, . . .88 
 
 Peile v. Sloddart, ... 17 
 
 Pelham v. Hinder, . . .221 
 
 Pemberton v. Pemberton, . 250, 378 
 
 Penfold v. Nunn, ... 18 
 
 Pennell v. Deffell, . . .321 
 
 Penny v. Goode, ... 15 
 
 v. Turner, ... 30 
 
 v. Watts, . . .261 
 
 Perkin T>. Stafford, . . . 333 
 
 Perkins v. Bradley, . . . 391 
 
 Perry v. Barker, ... 120 
 
 v. Phelips, . 36, 417, 419 
 
 v. Truefit, . . .217 
 
 r. Walker, . . .198 
 
 r. Whitehead, ... 98 
 
 Petre v. Espinasse, . . . 146 
 
 Pettit. Ex parte, . . .126 
 
 Phelps v. Prothero, . . . 346 
 
 Philanthropic Society v. Kemp, 277 
 
 Phillipo v. Munnings, . . 251 
 
 Phillipott's Charity, In re, . 76 
 
 Phillips v. Buckingham, Duke 
 
 of, . . . .177 
 
 v. Clarke, . . .409 
 
 v. Evans, . . 17, 192 
 
 Ex parte, . . 285, 297 
 
 v. Phillips, . . 222, 245 
 
 v. Worth, . . .199 
 
 Pickering v. Ely, Bishop of, 82, 85 
 
 v. Pickering, . . 57 
 
 Pickup v. Atkinson, . .57 
 
 Pidcock v. Bishop, . . .179 
 
 Pierson v. Shore, . . . 143 
 
 Piggin v. Cbeetham, . . .113 
 
 Pilling v. Armitage, . . . 150 
 
 Pinkett r. Wright, . . 242, 244 
 
 Pinkus r. Peters, . . 388, 418 
 
 Pitt v. Cholmondeley, . . 227 
 
 Playfair v. Thames Junction 
 
 Railway Company, . 196, 359 
 
 Plowden v. Hyde, . . 173, 174 
 Plummer v. Wildman, . . 271 
 Plunket v. Lewis, . . . 105 
 v. Penson, . . . 256 
 Polley v. Seymour, . . . 136 
 Pooley r. Budd, . . 83, 91 
 
 Pope f. Onslow, . . . 165 
 Portarlington, Lord v. Sonlby, 195 
 Postlethwaite t;. Blythe, . .115 
 Pott v. Gallini, . . . .260 
 Potter r. Waller, . . .15 
 Power v. Walker, . . .215 
 v. Whitmore, . . .271 
 Pownal v. Ferrand, . . .269 
 Powys v. Blagrave, . . . 208 
 v. Mansfield, ... 98 
 Praedr. Hull, . . . .113 
 Prendegast v. Eyre, . . . 117
 
 XXX 
 
 TABLE OF ENGLISH CASES. 
 
 Prentice v. Phillips., . . . 350 
 
 Preston v. Grand Collier Dock Co. 321 
 
 Price v. Berrington, . 176, 183, 303 
 
 v. Carver, . . 125, 253 
 
 v, Griffith, . . 77, 88 
 
 v. Price, . . . .183 
 
 Pride v. Fooks, 63 
 
 Prince Albert v. Strange, . . 213 
 Prince v. Heylin, . . .233 
 Pritchard v. Draper, . . . 413 
 v. Fleetwood, . . 353 
 Pritt v. Clay, . . . .189 
 Prodgers v. Langham, . . 146 
 Prosser v. Edmonds, . . 54 
 
 Prowse v. Abingdon, . . 276 
 
 Pruen v. Lunn, .... 406 
 Pulsford v. Richards, . 176,177 
 Pulteney v. Darlington, . . 137 
 . Warren, . 229, 234, 235 
 Pulvertoft v. Pulvertoft, . 146, 153 
 Purcel v. McNamara, . . 386 
 
 Pusey v. Desbouvrie, . . 96 
 
 Pye, Ex parte, . . 80, 98, 104 
 
 Pym n. Lockyer, . . 98, 104 
 Pyrke v. Waddingham, . . 84 
 
 Quarrell v. Beckford, 
 Queen's College, In re, 
 
 Rabbett v. Squire, 
 Radcliffe, Ex parte, . 
 Raine v. Cairns, 
 Rajah, &c., v. E. I. Co., 
 Ramsbottom v. Freeman, . 
 Randall v. Randall, . 
 v. Russell, 
 
 119 
 75 
 
 343 
 293 
 236 
 8 
 
 355 
 245 
 60 
 Ranger v. Great Western Railway, 
 
 222, 224 
 
 Ranken v. Harwood, . . . 260 
 
 v. Huskisson, . . 218 
 
 Raphael v. Boehm, ... 64 
 
 Raven v. Waite, . . .103 
 
 Rawson v. Samuel, . . 223, 358 
 
 Rawstone v. Parr, . . .173 
 
 Raynes v. Wyse, . . . 360 
 
 Reed v. Harris, .... 353 
 
 Rees v. Berrington, . 106, 268, 269 
 
 v. Keith, . . . .142 
 
 Reeve v . Attorney-General, . 73 
 
 Reeves v. Baker, . 29, 31, 306 
 
 v. Glastonbury Canal 
 
 Company, . . . 113 
 Reg. v. Smith, . . . .282 
 Reid v. Shergold, . . .100 
 Rendall v. Rendall, . . . 353 
 Rennie v. Ritchie, ... 44 
 Rex v. Canterbury, Bishop of, . 75 
 v. Greenhill, . . . 280 
 Reynell v. Sprye, 6, 14, 175, 176, 177 
 Reynolds t;. Pitt, . . .109 
 
 Rice v. Rice, . . . .160 
 Rich v. Cockell, ... 93 
 Richards, Ex parte, . . .292 
 v. Attorney-General of 
 
 Jamaica. . . 136 
 v. Platel, '. . .115 
 Richardson v. England, Bank of, 
 
 244, 351, 352 
 
 v. Eyton, . . 189 
 
 v. Hastings, . 241, 322 
 v. Larpent, . . 322 
 v. Merrifield, . . 288 
 v. Smallwood, . 147 
 
 Rico v. Gaultier, . . . 360 
 Rider v. Kidder, . , 35, 130 
 Ridgway v. Roberts, . . .210 
 Ripley v. Waterworth, . . 245 
 Ripon, Earl of, v. Hobart, . .211 
 Roberts, Ex parte, . . .292 
 v. Denny, . . 82, 88 
 v. Ebenhart, . 241, 247 
 v. Marchant, . . 399 
 v. Tunstall, - 62, 186 
 
 v. Walker, . . .265 
 Robertson v. Lubbock, . . 19 
 v. Shewell, , . 15 
 Robinson v. Briggs, . . . 184 
 v. Byron, . . .218 
 v. Geldard, . . 277 
 
 v. Governors, &c. 
 
 136, 138, 263 
 
 v. Lamond, . . 6 
 
 v. Milner . . .387 
 
 v. Page, ... 84 
 
 v. Rosher, . 142, 392 
 
 v. Wheelwright, . 46 
 
 Rochdale Canal Co. v. King, . 211 
 
 Rochford v. Fitzmaurice, . . 42 
 
 v. Hackman, . 42, 282 
 
 Rock v. Cooke, . . . .298 
 
 Rocke v. Hart, .... 63 
 
 Rodgers v. Marshall, . . 98, 101 
 
 v. Nowhill, . . .217 
 
 Rogers v. Earl, . . . .170 
 
 Rolfe v. Peterson, . . .108 
 
 v. Rolfe, .... 82 
 
 Rolt v. Hopkinson, . . .110 
 
 Rose v. Cunyngbame, . . 141 
 
 Ross v. Ross, .... 351 
 
 Ross's Trust, In re, . . . 45 
 
 Rouse' 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 
 
 Rundellw. Murray, . . .215 
 
 Russell v. Ashby, . . .361 
 
 v. Jackson, ... 76
 
 TABLE OF .ENGLISH CASES. 
 
 XXXI 
 
 Russell 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, . 82, 89 
 Salmon v. Cults, . . 61, 184 
 v. Randall, . . .212 
 Salomons v. Laing, . . . 320 
 Salvidge v. Hyde, . . .310 
 Salway v. Salway, ... 57 
 Sampson v. Pattison, . . 126 
 
 Samnell v. Howarth, . . .106 
 Sanders v. Rodway, ... 45 
 San don v. Hooper, . . .111 
 Sanford v. Mori-ice, . . 313, 403 
 Saunders v. Amnesly, Lord, . 190 
 v. Smith, . . .215 
 Savage v. Brocksopp, . . 21 
 Saville v. Saville, . . .289 
 Sawver v. Birchmore, . . 262 
 v. Mills, . . . 303 
 
 Say v. Creed, . . . 251, 261 
 Scales f. Collins, . . . 270 
 Scawin v. Scawin, . . . 102 
 Schneider v. Heath, . . . 179 
 Scholefield v. Heafield, . . 253 
 Schoole r. Sail, . . .117 
 
 Schreiber v. Creed, . . . 152 
 Schroder v. Schroder. . . 94 
 Scoones v. Morrell, ... 89 
 Scott r. Beecher, . . . 265 
 v. Broadwood, . . 19 
 
 v. Dunbar, . . . 392 
 v. Jones, .... 255 
 Scott v. Xicholl, . . .317 
 Seaborne . Clifton, . . .162 
 Sealey v. Laird, . . . 360 
 
 Seddon v. Council, . 268, 303, 319 
 Seely v. Jago, . . . .137 
 Selby v. Jackson, . . . 183 
 v. Selby, . . .275 
 
 Semplev. Birmingham Railway, 317 
 Seton r. Slade, .... 90 
 Shackell v. Macauley, . .310 
 Shaftsbury v. Marlborough, . 55 
 Shakel v. Marlborough, . . 354 
 Shalcross t;. Dixon, . . . 157 
 Sharp t\ Carer, .... 355 
 Sharpe v. Scarborough, . . 256 
 Shaw v. Borrer, . . . 255 
 
 Ex parte, ... 14 
 
 v. Lawless, ... 31 
 v. Lindser, . . . 370 
 v. Thackray, ... 84 
 Sheddon v. Goodrich, . . 93 
 Sheehy v. Muskerry, . . 310, 397 
 Sheffield v. Buckingham, Duchess 
 
 of, 195 
 
 Shelley v. Westbrooke, '. . 283 
 
 Shepherd v. Morris, ... 12 
 
 v. Mouls, ... 63 
 
 Sherman v. Sherman, . . 227 
 
 Sherwood v. Sanderson, 290, 291, 293 
 
 Shiphard v. Lutwidge, . \ . 255 
 
 Short v. Lee, . . . .377 
 
 v. Mercier, ... 6 
 
 Shrewsbury, &c., R. R. v. London, 
 
 &c., R. R., . . . . 356 
 Shuttleworth v. Howarth, . 390 
 
 Sidmouth v. Sidmouth, . 33, 102 
 Sidney v. Shelley, ... 33 
 Sieveking v. Behrens, . 205, 206 
 Silk v. Prime, . 243, 254, 257 
 
 Simmonds v. Leonard, . . 245 
 v. Palles, ... 31 
 v. Rose, . . .138 
 Simonds r. White, . . . 271 
 Simpson r. Howden, Lord, . 174 
 v. Vaughn, . . . 172 
 Simson v. Jones, . . 285, 289 
 Skeats v. Skeats, . . .102 
 Skeeles v. Shearly, . . .130 
 Skinners' Co. v. Irish Society, . 353 
 Slaney v. Sidney, . . . 204 
 Sloan v. Cadogan, ... 80 
 Small v. Atwood, . . 144, 321 
 Smith r. Beaufort, . . .16 
 . Clarke, . . .177 
 v. Claxton, . . .140 
 v. Clay, . . . .228 
 v. E. 1. Company, . . 8 
 v. Effingham, . . . 353 
 v. Garland, . . . 145 
 17. Hurst, . . 31, 132 
 
 v. Jeyes, . . . 243, 354 
 . Keating, . . .31 
 v. Mules, .... 243 
 r. Xethersole . . . 360 
 v. Pincombe, . . . 313 
 t7. Smith, . . . .302 
 Smythe v. Smythe, . . . 356 
 Soltau v. De Held, . . .211 
 Somerset, Duke of, v. Cookson, 92 
 Southeast R. R. Co. v. Brogdon, 220 
 Southeastern R. R. Co. t7. Sub- 
 marine Telegraph Co. . 309 
 South Sea Company v. Wymond- 
 
 sell, 176 
 
 Southey v. Sherwood, . . 216 
 Sowarsby . Lacy, . . . 156 
 Spain. King of, v. Machado, . 302 
 Speer v. Crawter, . . . 237 
 Spence, Re, ... 281, 283 
 Spencer r. Birmingham Railway, 218 
 Spencer's Case, . . . 153 
 
 Spickernell v. Hotham, . . 258 
 Spottiswoode v. Clarke, . . 217 
 I Sproule v. Prior, . . . 275
 
 XXX11 
 
 TABLE OF ENGLISH CASES. 
 
 Spry v. Bromfield, . . .376 
 
 Stables, Re, .... 287 
 
 Stacey v. Elph, .... 37 
 
 Stackhouse v. Barnston, . . 228 
 
 Stafford v. Selby, . . .122 
 
 Stainton v. Carron Co., . . 301 
 
 Stamps v. Birmingham, &c., Rr.R., 344 
 
 Stanney v. Waliusley, . . 372 
 
 Stanton v. Chadwick, . 9, 17 
 
 v. Hall, ... 49 
 
 v. Hatfield, . . .391 
 
 Stapilton v. Stapilton, . . 188 
 
 Stapylton v. Scott, ... 84 
 
 Steele v. Stewart, ... 7 
 
 Steffe v. Andrews, . . . 192 
 
 Stephens v. James, . . . 282 
 
 Sterndale v. Hankinson, . . 238 
 
 Stevens v. Keating, . . . 218 
 
 Steward's Est., Re, . . . 136 
 
 Stewart v. Alliston, ... 90 
 
 v. Graham, . . . 360 
 
 v. Stewart, . . 189, 191 
 
 Re, .... 136 
 
 Stickney v. Sewell, ... 56 
 
 Stiffe v. Everitt, ... 49 
 
 Stikeman v. Dawson, . .176 
 
 Stileman v, Ashdown, . . 130 
 
 Stiles v. Guy, .... 56 
 
 Stillwell r. Wilkins, . . . 354 
 
 Stirling v. Forrester, . . 270 
 
 Stocken v. Dawson, . . 386, 387 
 
 v. Stocken, . . .287 
 
 Stocker v. Brockelbank, . . 239 
 
 v. Wedderburne, . . 207 
 
 Stockley v. Stockley, . 189, 190 
 
 Stocks v. Dobson, ... 53 
 
 Stone v. Compton, . . .179 
 
 v. Godfrey, . . .189 
 
 v. Theed, ... 60 
 
 Storer v. Great Western Railway, 83 
 
 Story r. 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 
 
 Stroughill v. Anstey, . . 157 
 
 Stuart f. Bute, .... 12 
 
 v. Welch, . . .202 
 
 Stubbs v. , . . .400 
 
 Stunsbury v. Arkwright, . . 303 
 Sturge t;. Dimsdale, . . . 277 
 Sturgis v. Champneys, . . 48 
 Suissa 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. Hay garth .- . 51, 139 
 
 v. Ha'ylin, . . .226 
 
 v. Heming, . ' .18 
 
 v. Plumer, . . . 144 
 
 v. Pugh, . . .182 
 
 Re, .... 284 
 
 v. Rundell, . . 12, 15 
 
 v. 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. Dering, ... 91 
 
 v. Oakley, . . .210 
 
 Re, .... 297 
 
 Thompson v. Derham, . 198, 409 
 
 Ex parte, . . .409 
 
 v. Griffin, . . .287 
 
 v. Harrison, . . 180 
 
 v. Heffernan, . . 185 
 
 v. Percival, . . 173 
 
 v. Spiers, ... 54 
 
 v. Williamson, . . 243 
 
 Thornbrough v. Baker, . 111,112 
 
 Thornett v. Haines, . . .178 
 
 Thornton v. Hawley, . . .136 
 
 Thorpe v. Jackson, . . .172 
 
 Turing v. Edgar, . . . 338 
 
 Thynne v. Earl of Glengall, 104, 105 
 
 Tickel v. Short, . . .227 
 
 Tidd v. Lister, ... 49, 263 
 
 Timson v. Ramsbottom, . . 161 
 
 Tindal v. Cobham, . . .352 
 
 Tipping v. Clark, . . 11, 14 
 
 v. Power, . . 261, 390 
 
 Titley v. Davies, . . . 272 - 
 
 Todd v. Gee 81 
 
 Toldervy v. Colt, . . .354 
 Tollett v. Tollett, . . .100 
 Tombs v. Roch, . . 263, 265, 276
 
 TABLE OF ENGLISH CASES. 
 
 XXX111 
 
 Tomlin r. Tomlin, . . . 363 
 
 Totnlinson, Ex parte, . . 292 
 
 w. Harrison, . . 360 
 
 Tonkin v. Lethbridge, . . 413 
 
 Tonson r. Walker, . . .213 
 
 Tooke r. Hartley, . . .120 
 
 v. Hastings, ... 36 
 
 Tooth v. Canterbury, Dean of, . 317 
 
 Topham v. Lightbody, * . . 382 
 
 Toulmin v. Copland, . . 416, 417 
 
 Toussaint v. Martinnant, . . 269 
 
 Towuley v. Bedwell, . . .141 
 
 v. Dean, . . .206 
 
 v. Sherborne, . . 58 
 
 Townsend r. Carus, ... 67 
 
 v. Champernowne, . 89 
 
 Re, . . . . 115 
 
 v. Westacott, . . 147 
 
 Townshend Peerage Case, . . 24 
 
 v. Stangroom, 
 
 85, 170, 171, 172 
 
 Travis v. Milne, . . . .301 
 Tregonwell v. Sydenham, . . 33 
 t Trinity House Corporation v. 
 
 Burge, .... 5 
 
 Trotter v. Trotter, . . .383 
 
 Tucker v. Wilson, . . . 120 
 
 Tuffnell v. Constable, . . 106 
 
 Tulk v. Moxhay, . . . 152 
 
 Tullett v. Armstrong, . 44, 46 
 
 Tullitt v. Tullitt, . . .143 
 
 Turner v. Borlase, . . .317 
 
 v. Cameron's, &c. Co. . 114 
 
 v. Harvey, . . .178 
 
 v. Morgan, . . 230, 231 
 
 v. Turner . . 194, 287 
 
 Turton r. Benson, . . . 180 
 
 T wyford r. Trail, . . .387 
 
 Twyne's Case, . . 145, 147, 151 
 
 Tyler v. Lake, . . .45 
 
 Tyson v. Fairclough, . *. . 354 
 
 Underbill v. Honvood, 
 Uniacke, In re, . 
 Upjohn r. Upjohn, 
 Urch v. Walker, 
 Usborne v. Baker, 
 
 173 
 37 
 
 407 
 
 413 
 
 Vandergucht v. De Blaquiere, . 47 
 
 Vane r. Barnard, . . . 209 
 
 Vansandcau r. Moore, . .321 
 
 Vansittart i\ Vansittart, . . 46 
 
 Vaughan, Ex parte, . . . 109 
 
 v. Vandcrstegan, 46, 176 
 
 Vernon v. Keys, . . . 177 
 
 v. Thelluson, . . 260 
 
 Vice v. Thomas, . . .247 
 
 Vickers v. Cowell, ... 35 
 
 Vigors v. Audley, Lord, . . 414 
 
 c 
 
 Voyle v . Hughes, 
 Vuillamy v. Noble, 
 
 53, 80 
 223 
 
 Wait, Re, 242 
 
 Wake v. Conyers, . . . 237 
 Walburn v. Ingleby, . . 303, 317 
 Waldron v. Sloper, . . . 151 
 Wales, Princess of, v. Liverpool, 
 
 Lord, 18 
 
 Walford v. Pemberton, . . 414 
 
 Walker v. Armstrong, . .170 
 
 v. Fletcher, . . .207 
 
 v. Jeffreys, ... 88 
 
 Re, .... 288 
 
 v. Symonds, . . 56, 58, 62 
 
 v. Wetherell, . . .286 
 
 v. Woodward, . . 64 
 
 Wallace v. Pomfret, . . 105, 106 
 
 Wallwyn v. Lee, . . 160 
 
 Walmsley v. Child, . . .168 
 
 Walsh v. Gladstone, . . .249 
 
 Walsingham v. Goodriche, . 7 
 
 Walter v. Selfe, . . . .211 
 
 Walworth v. Holt, . . 241,322 
 
 Wahvyn v. Lee, . . . .162 
 
 Warburton v. Storr, . . . 192 
 
 Ward v. Audland, ... 80 
 
 v. Baugh, ... 96 
 
 Warde v. Warde, . . . 6, 7 
 
 Ware v. Polhill, . . x . 285 
 
 Warner v. Baynes, . . 230 
 
 Warren v. Richardson, . . 87 
 
 Wasson v. Waring, . . . 188 
 
 Waterford v. Knight, . 378, 414 
 
 Waters v. Bailey, ... 60 
 
 v. Groom, . . .61 
 
 v. Mynn, . . .176 
 
 v. Taylor, . . 243, 354 
 
 Watkins v. Cheek, . . .156 
 
 Watts v. Girdlestone, . . 63 
 
 Re, 293 
 
 Way v. Bassett, . . .173 
 
 Weall v. Rice, . . . .105 
 
 t\ West Middlesex Water 
 
 Works, . . .201 
 Weaver, Re, . . . .199 
 Webb v. Dire. Lond. and Ports- 
 mouth R. R. . . 84 
 r. Manchester and Leeds 
 
 Railway, . . .211 
 
 Re . 292 
 
 i'. Shaftesbury, Lord, . 285 
 
 v. Wools, . . .31 
 
 Webber v. Hunt, . . .118 
 
 Webster v. Webster, ... 45 
 
 Wedderburn v. Wedderburn, 62, 246 
 
 Wedgewood v. Adams, . 84, 85 
 
 Welch. Re 286 
 
 Wellesley's Case . . . 326 
 Wellesley v. Beaufort, 282, 283, 288
 
 XXXIV 
 
 TABLE OF ENGLISH CASES. 
 
 Wellesley v. Wellesley, 
 
 36, 209, 281, 
 Wellings v. Cooper, . 
 West v. Reid, 
 
 v, Retford, In re, 
 v. Shuttleworth, 
 v. Smith, . 
 Westby v. Westby, 
 Westcott v. CuLliford, 
 Westmeath t?. Salisbury, 
 "Wetherell v. Collins. 
 
 Ex parte, . 
 Whaley v. Dawson, . 
 "Wharton v. Durham, Earl of, 104, 105 
 
 r. Whartqn, 
 Whatman v. Gibson, . 
 Wheatley v. Slade, 
 Wheldale v. Partridge, 
 Whitaker v. Newman, 
 
 v. Wright, 258, 
 Whitbread v. Brockhurst, . 
 
 Exparte, 123, 124, 
 v. Smith, 
 
 Whitebread v. Bennett, 
 White v. Cuddon, 
 v. Hillacre, 
 v. Lisle, . 
 v. Warner, 
 v. White, 
 v. Williams, . 
 v. Wilson, 
 
 Whitehead v. North, . 
 Whitehouse v. Partridge, . 
 Whitemarsh r. Robertson, 
 Whitmore v. Oxborrow, 
 
 v. Ryan, . 
 Whittaker, Re, . 
 Whittingham v. Thornburgh, 
 Whittou, Ex parte, 
 Whitwarth v. Gaugain, 
 
 v. Whyddon, . 
 Wickham v. Gattrell, 
 Widdowson v. Harrington, Lord, 
 Wigsell v. Wigsell, . 
 Wild r. Gladstone, . 
 Wilding v. Richards, 
 Wildens v, Arkin, 
 Wilkins v. Fry, . 
 
 v. Stephens, 
 
 Wilkinson v. Fowkes, 18c 
 v. Henderson, . 
 Willan v. Witlan, 
 Willats v. Bushby, . 
 Willet v . Winnell, 
 Willett v. Blandford, 
 Williams v. Chard, . 
 Ex parte, . 
 v. Jersey, Earl of, 
 v. Lambe, . 
 v. Lonsdale, 
 
 
 Williams v, Owen, 
 
 . Ill 
 
 334, 412 
 
 v. Roberts, 
 
 . 197 
 
 . 224 
 
 v. Williams, 29 
 
 , 31, 216 
 
 . 159 
 
 Williamson v. Gihon, 
 
 . 180 
 
 . 76 
 
 Willis v. Jernegan, . 
 
 . 227 
 
 . 68 
 
 Willoughby v. Willoughby, 
 
 52, 163 
 
 . 397 
 
 Willis v. Slade, . 
 
 . 230 
 
 . 189 
 
 v. Stradling, . 
 
 . 87 
 
 . 392 
 
 Wilmot v. Jenkins, . 
 
 . 251 
 
 42 
 
 v. Pike, . 53, 
 
 160, 161 
 
 . 115 
 
 Wilson v. Beddard, . 
 
 . 377 
 
 . 124 
 
 v. Cluer, 
 
 . 119 
 
 . 310 
 
 Ex parte, 
 
 . 114 
 
 104, 105 
 
 v. Metcalf, 
 
 . 119 
 
 11 
 
 v. Moore, 
 
 . 62 
 
 . 152 
 
 v. Stanhope, . 
 
 . 322 
 
 . 91 
 
 v. Wilson, 
 
 45, 170 
 
 . 137 
 
 Wilton v. Hill, . 
 
 46 
 
 . 376 
 
 Wiltshire v. Rabbits, 
 
 . 161 
 
 370, 387 
 
 Winch v. Birkinhead R. R., 
 
 212 
 
 . 340 
 
 Winter v. Anson, 
 
 128, 129 
 
 295,297 
 
 v. Innes, 
 
 173, 385 
 
 . 173 
 
 Withy v. Cottle, 
 
 83 
 
 . 138 
 
 Witter v. Witter, 
 
 . 143 
 
 91, 177 
 
 Witty v. Marshall, 
 
 . 282 
 
 . 165 
 
 Wood v. Abrej',' 
 
 . 187 
 
 . 376 
 
 f. Downes, 
 
 54 
 
 . 109 
 
 v. Griffith, 
 
 192, 400 
 
 39, 270 
 
 v. Hitchings, . 
 
 10 
 
 11 
 
 i\ Milner, 
 
 . 399 
 
 . 377 
 
 v. Rowcliffe, . 
 
 92 
 
 . 397 
 
 v. Sutcliffe, 
 
 . 211 
 
 . 360 
 
 Woodgate v. Field, 
 
 258, 372 
 
 59 
 
 Woodhouse v. Shepley, 
 
 . 187 
 
 . 409 
 
 Woodmason v . Doyne, 
 
 . 400 
 
 . 324 
 
 Woodruffe v. Daniel, 
 
 . 308 
 
 . 292 
 
 Woodward v. Millar, 
 
 . 177 
 
 . 179 
 
 Woodyatt v. Gresley, 
 
 62 
 
 . 117 
 
 Woolam v. Hearne, 85, 
 
 111, 168 
 
 . 149 
 
 Wormald v, De Lisle, 
 
 . 303 
 
 . 353 
 
 Worrall v. Jacob, 
 
 . 170 
 
 . 175 
 
 v. Jones, . . . 
 
 . 364 
 
 rd, 65 
 
 Wortley v. Birkhead, 
 
 . 162 
 
 . 270 
 
 Wrangham, Ex parte, 
 
 75 
 
 . 341 
 
 Wray v. Stcele, 
 
 35 
 
 31 
 
 Wren v. Kirton, 
 
 58 
 
 . 215 
 
 Wright v. Atkyns, 
 
 . 31 
 
 . 55 
 
 v. Howard, 
 
 . 392 
 
 . 144 
 
 v. Jones, 
 
 21 
 
 191, 415 
 
 v. Latham, 
 
 25 
 
 . 173 
 
 v. Lukes, 
 
 . 351 
 
 . 383 
 
 v. Morley, 
 
 49 
 
 147, 323 
 
 v. Pilling, 
 
 . 399 
 
 . 112 
 
 v. Simpson, . 
 
 . 273 
 
 246, 247 
 
 v. Snow, 
 
 . 176 
 
 . 407 
 
 v. Tallis, 
 
 . 216 
 
 . 240 
 
 v. Vernon, 
 
 . 413 
 
 150, 303 
 
 Wrigley v. Swainson 
 
 180, 181 
 
 . 162 
 
 Wyatt v. Harwell, . . . 
 
 155 
 
 51, 65 
 
 Wyllie v. Ellice, 
 
 . 281
 
 TABLE OF ENGLISH CASES. 
 
 XXXV 
 
 Wytbe v. Ilennikcr, . 
 
 , 
 
 264, 
 
 275 
 
 Young 
 
 r. 
 
 Keigliley . 
 
 . 241, 242 
 
 
 
 
 
 
 v. 
 
 Walker, 
 
 . 192 
 
 Yatcs v. Hambley, 
 
 
 
 126 
 
 
 r. 
 
 Young, 
 
 . 172 
 
 Yonge, Ex parte, 
 
 
 
 244 
 
 Yovatt v. 
 
 Winyard, 
 
 . 210 
 
 v. Reynell, 
 
 267, 
 
 268, 
 
 269 
 
 
 
 
 
 York, Mayor of, v. Pilkington, 
 
 200, 
 
 204 
 
 Zulueta 
 
 V 
 
 Vinent, 
 
 . 196, 356 
 
 Young. Ex parte, 
 
 
 
 268 
 
 
 

 
 TABLE OF CASES 
 
 CITED IN THE AMERICAN NOTES. 
 
 THE PAGES REFERRED TO ARE THOSE BETWEEN BRACKETS [ ]. 
 
 PAGE 
 
 Abbott's Appeal, . . . 239 
 Abercrombie v. Knox, . . 268 
 Aberdeen Ry. Co. v. Blaikie 
 
 Bros., 183 
 
 Abney v. Kingsland, . . .101 
 
 Abraham v. Plestoro, . .310 
 
 Acheson v. Miller, . . . 268 
 
 Ackla v. Ackla, . . .110 
 
 Acton v. Woodgate, . . .31 
 
 Adams v. Adams, . . . 248 
 
 v. Ames Iron Co., . . 230 
 
 v. Brackett, . . 263, 274 
 
 v. Brown, . . .113 
 
 v. Dixon, . . 205, 257 
 
 v. Fisher, . . .17 
 
 v. Mackay, ... 46 
 
 v. Parker, . . .114 
 
 v. Robertson, . . 168 
 
 v. Stephens, . . . 168 
 
 v. Way, . . . .268 
 
 v. Whiteford, . 196, 351 
 
 Aday v. Echols, . . 77, 91 
 
 Addams v. Tutton, . . . 240 
 
 Addison v. Bowie, . . 96, 287 
 
 Adkins v. Paul, . . . 363 
 
 Adlum v. Yard, ... 95 
 
 Adsit v. Adsit, . . 94,96 
 
 Agar v. Fairfax, . . . 229 
 
 Agassiz v. Squire, . . .185 
 
 Agnew v. Bell, .... 269 
 
 v. Fetterman, . 254, 255 
 
 Agric. Bank v. "Fallen, . . 270 
 
 Ahearne v. Hogan, . . .184 
 
 Aiken v. Ballard, . . . 303 
 
 v. Gale, .... 270 
 
 Aiman v. Stout, . . . 183 
 
 Albea v. Griffin, ... 86 
 
 Albergottie v. Chaplin, . . 230 
 
 Aldborough (Lord) v. Trye . 186 
 
 Alden v. Garver, . . .111 
 
 v. Holden, . . . 363 
 
 Alderson v. White, . . .111 
 
 Aldrich v. Cooper, 257, 263, 270, 272 
 
 Aldrich's v. Hapgood, . . 269 
 
 Alexander v. Fisher, . . 208 
 
 v. Pendleton, . . 157 
 
 t>. Worthington, . 263 
 
 Aleyn v. Belcliier, . . . 186 
 
 Alfrey v. Alfrey, . . .343 
 
 Allen v. Allen, . . 48, 402 
 
 v. Board of Freeholders, 211 
 
 v. Burke, .... 77 
 
 v. Centre Valley R. R. . 243 
 
 v. Chambers, ... 86 
 
 v. Coffman, . . . 309 
 
 v. Davison. . . .78 
 
 v. Getts, ' . .92 
 
 v. Hall, . . . .231 
 
 v. McCalla, . . . 151 
 
 v. McPherson, . . 248 
 
 v. Miller, .... 309 
 
 t>. Randolph, . . . 338 
 
 v. Ranson, . . . 117 
 
 v. Simons, . . . 317 
 
 r. Wells, . . . .243 
 
 v. Wood, . . . .269 
 
 Allen's Estate, .... 86 
 
 Allis v. Billings, . . .182 
 
 Allison v. Allison, . . 248, 364 
 
 Alsberry v. Hawkins, . , . 233 
 
 Alston v. Munford, . . 263, 275 
 
 Ambler v. Norton, ... 94 
 
 Ambrose v. Ambrose, . . 28 
 
 Amelung v. Srekamp, . . 210 
 
 American Academy v. Harvard 
 
 College, .... 67 
 
 Ames v. King, . . . 217, 308 
 
 Ancaster (Duke of) v. Mayer, 261, 263 
 
 Ancrum v. Dawson, . . . 361 
 
 Anderson v. Anderson, . . 243 
 
 v. Chick, ... 86 
 
 v. Greble, . . 268 
 
 v. Guichard, . . 355 
 
 v. Hughes, . . 232 
 
 v. Lewis, . . . 336 
 
 v. Neff, . 162, 163, 364
 
 TABLE OF AMERICAN CASES. XXXY11 
 
 Anderson r. Noble, . 
 
 196 
 
 Att.-Gen. v. Bradford Canal, 
 
 211 
 
 v. Saylors, 
 
 268 
 
 v. Corp. of London, 
 
 
 v. Thompson, . 
 
 286 
 
 9, 14, 15 
 
 ,11 
 
 v. Tompkins, 
 
 240 
 
 r. Davey. . 
 
 69 
 
 v. Ward, . 
 
 402 
 
 v. Dean of Windsor . 
 
 71 
 
 v. Wilkinson, 
 
 205 
 
 v. Federal St. Meeting 
 
 
 Anderton v. Yates, 
 
 287 
 
 House, 
 
 69 
 
 Andress v. Miller, 
 
 243 
 
 v. Jolly, . . 65 
 
 , 69 
 
 Andrew r. Spurr, 
 
 168 
 
 v. Sheffield Gas Con- 
 
 
 Andrews v. Bell, 
 
 88 
 
 sumers' Co., 
 
 211 
 
 v. Brown, . . 91, 
 
 246 
 
 v. Utica Ins. Co., 
 
 211 
 
 v. Hobson, . 
 
 402 
 
 v. Wallace, . 65, 67 
 
 , 69 
 
 Matter of, . 
 
 281 
 
 v. Wilkins, . 67, 
 
 162 
 
 v. Solomon, 
 
 6 
 
 Attwoodvi 1 . Coe, 
 
 4 
 
 i'. Sparhawk, 
 
 156 
 
 v. Small, 
 
 177 
 
 <fc Bro. v. Jones, . 
 
 48 
 
 Atwill v. Ferrett, 
 
 335 
 
 Andrew's Heir v. Brown's Adm. 
 
 246 
 
 Atwood v. Vincent, . 
 
 128 
 
 Anketel v. Converse, 
 
 128 
 
 Auburn Co. v. Douglass, . 
 
 211 
 
 Annan v. Merritt, 
 
 86 
 
 Austin v. Baintor, 
 
 377 
 
 Anstice v. Brown, . . 33, 
 
 138 
 
 v. Boys, 
 
 246 
 
 Anthony v. Anthony, 
 
 111 
 
 Autrey v. Cannon, 
 
 363 
 
 v. Bogers, . 
 
 118 
 
 Averill v. G.uthrie, . . 162, 
 
 163 
 
 v. Leftwich, . 77, 
 
 304 
 
 v. Loucks, . . 252, 
 
 272 
 
 Apthrope v. Comstock, 196, 356, 
 
 377 
 
 Avery v. Kellogg, 
 
 310 
 
 Arendell v. Blackwell, 
 
 346 
 
 v. Petton, 
 
 319 
 
 Arguello v. Edinger, . 80. 87 
 
 Ay mar v. Roff, .... 
 
 281 
 
 Arlin v. Brown, 
 
 128 
 
 Aymer v. Gault, 
 
 206 
 
 Armistead v. Ward, . 
 
 268 
 
 Ayres v. Carver, . . 375, 
 
 403 
 
 Armitage v. Wickliffe, . 110, 
 
 373 
 
 v. Husted, 
 
 272 
 
 Arrnsby r. Wood, 
 
 364 
 
 v. Mitchell, 
 
 174 
 
 Armstead v. Hundley, 
 
 179 
 
 v. Valentine, . 
 
 344 
 
 Armstrong v. Athens Co. . 
 
 302 
 
 v. Waite, .... 
 
 115 
 
 v. Lear, . 
 
 282 
 
 v. Wright, . . 310, 
 
 314 
 
 v. Pierson, 
 
 88 
 
 
 
 v. Pratt, . 
 
 402 
 
 Babcock, Matter of, . 
 
 268 
 
 v. Ross, . 
 
 128 
 
 Backett v. Lamb, 
 
 94 
 
 v. Stone, . 
 
 280 
 
 Backhouse v. Patton, 
 
 254 
 
 Armstrong's Appeal, . 
 
 263 
 
 Backler v. Farrow, 
 
 233 
 
 Arnhout, Matter of, . 
 
 290 
 
 Badeau v. Rogers, 
 
 389 
 
 Arnold v. Klepper, 
 
 211 
 
 Bailey v. Brownfield, . 268, 
 
 269 
 
 v. Mattison, . 
 
 111 
 
 v. Dean, . . . . 3, 19 
 
 Arnot v. Woodburn, . 
 
 269 
 
 v. Duncan's Rep., . 
 
 233 
 
 Arthur v. Arthur, 
 
 168 
 
 v. Le Roy, 
 
 337 
 
 Artz i'. Grove, .... 
 
 111 
 
 v. Myreck, . . 312, 
 
 385 
 
 Ash v. Daggy, .... 
 
 77 
 
 v. Sisson, 
 
 320 
 
 Ashbrook v. Watkins, 
 
 188 
 
 v. Stiles, ... 
 
 248 
 
 Ashe v. Hale, . . . 196, 
 
 356 
 
 Baily v. Burton, 
 
 309 
 
 f. Johnson, 
 
 356 
 
 v. Richardson, . 
 
 111 
 
 Ashhurst v. Mill, 
 
 189 
 
 v. Ryder, .... 
 
 303 
 
 r. Montour Iron Co., . 
 
 121 
 
 r. Wilson, . 10, 308, 344 
 
 Ashton v. Atlantic Bank, . 
 
 251 
 
 Bainbridge r. Owen, . 
 
 118 
 
 SVstor v. Miller, .... 
 
 114 
 
 Baines v. Goldey, 
 
 10 
 
 v. Wells, . . . 153, 
 
 157 
 
 r. McGee, . . 251, 
 
 310 
 
 Astreen v. Flanagan, . 
 
 101 
 
 Baird v. Baird, . . . 241, 
 
 246 
 
 Atkins v. Chilson, 
 
 208 
 
 Baker's Appeal, 
 
 243 
 
 v. Kron, .... 
 
 42 
 
 Baker v. Backers, 
 
 352 
 
 Atkinson v. Grey, 
 
 252 
 
 v. Biddle, 
 
 227 
 
 v. Manks, . 21, 206, 
 
 380 
 
 v. Bradley, 
 
 184 
 
 Atlantic De Laine Co. v. Tredick, 
 
 194 
 
 v. Hathaway, . 
 
 77 
 
 Atlantic Ins. Co. v. Lunar, 
 
 18 
 
 v. Lorillard, 
 
 285
 
 XXXV111 
 
 TABLE OF AMERICAN CASES. 
 
 Baker v. Smith, 
 
 i'. Vining, 
 
 v. Whiting, 
 
 v. Williamson, 
 Balch v. Onion, . 
 Baldwin r. Johnson, 
 
 v. Salter, 
 Baldy v. Brady, 
 Ballard r. McKenna, 
 
 v. Taylor, 
 Bait. & Ohio"R. R. v. Wheeling. 
 
 Bank v. Adger, . 
 v. Anderson, 
 v. Dubuque, 
 v. Seton, . 
 
 Bank of America v. Pollock, 
 Auburn v. Roberts, 
 Columbia v. Hagner, 
 Kentucky 
 
 Bank, 
 
 Kentucky t>. Vance, 
 Monroe v 
 
 horn, 
 
 Newbury t 
 U. S.v. Beverly 
 U. S. v. Biddle, 
 U. S. v. Carroll, 
 U. S. v. Shultz, 
 U. S. v. Winston, 
 Utica v. Mersereau, 
 Westminster v 
 Bankhart v. Houghton, 
 Bankhead v. Alloway, 
 Bankhead's Trust, 
 Banks v. May, 
 
 v. Phelan, 
 Banta v. Moore, 
 Baptist Ass. v. Hart's Ex'rs., 
 Barber v. Barber, 
 Barham v. Gregory, 
 Barker v. Bell, . 
 v. Belknap, 
 v. Swain, 
 Barkyat v. Ellis, 
 Barnard v. Jewett, 
 v. Moore, 
 Barnes' Appeal, 
 Barnes v. Lee, 
 
 v. McGee, 
 
 Barnett v. Barnett's Ex'rs., 
 v. Reed, 
 v. Spratt, 
 v. Woods, 
 Barney v. McCarty, 
 
 v. Myers, 
 
 Barnhart r. Grcenshields, 
 Barnsdale v. Lowe, 
 Barr v. Haseldon, 
 Barringer r. Burke, 
 
 . C9 
 
 Barren v. Barren, 
 
 33, 45 
 
 33 
 
 Barrow v. Barrow, 
 
 . 96 
 
 . 399 
 
 v. Rhinelander, 
 
 227, 379 
 
 3G3, 37G, 377 
 
 v. Wadkin, 
 
 42, 51 
 
 . 113 
 
 Barrs v. Fewkes, 
 
 33 
 
 33, 246 
 
 Barry v. Stephens, 
 
 222 
 
 84 
 
 Bartholomew v. Yaw, 
 
 . 198 
 
 . 254 
 
 Bartle v. Nutt, . 
 
 . 268 
 
 . 182 
 
 Bartlett v. Bartlett, . 
 
 . 351 
 
 45 
 
 v. Boyd, 
 
 . 314 
 
 heeling. 
 
 v. Crittenden, 
 
 . 214 
 
 19G, 356, 363 
 
 v. Fifield, 
 
 . 417 
 
 . 2G9 
 
 v. Gale, 
 
 . 363 
 
 . 110 
 
 v. Gouge, 
 
 . 233 
 
 61 
 
 Bartlcy i\ Bartley, 
 
 10 
 
 . 312 
 
 Bascomb v. Albertson, 
 
 65 
 
 lock, . 317 
 
 Basset v. Nosworthy, 147, 153 
 
 ,157,162 
 
 erts, . 144 
 
 Basye v. Beard, . 
 
 197, 418 
 
 xgner, . 88 
 
 Batchelder v. Wendell, 
 
 . 312 
 
 ,huylkill 
 
 Bateman v. Latham, . 
 
 . 139 
 
 . 412, 418 
 
 Bates f. Delavan, 
 
 . 153 
 
 ince, . 272 
 
 v. Johnson, 
 
 . 165 
 
 ;hermer- 
 
 v. Norcross, 
 
 . 153 
 
 . 196, 356 
 
 Batty v. Hill, . 
 
 . 217 
 
 stman, . 151 
 
 Baumgardner v. Guessfield, 
 
 33 
 
 r . 261, 363 
 
 Baxter v. Costin, 
 
 61 
 
 . 307, 335 
 
 v. Farmer, 
 
 19, 23 
 
 , . .315 
 
 Bayard v. Ches. & Del. Co., 
 
 . 363 
 
 . 304 
 
 Bayler v. Commonwealth, . 
 
 54 
 
 n, . 269 
 
 Bayley v. Greenleaf, . 
 
 . 128 
 
 eau, 68, 344 
 
 Baylies v. Bussy, 
 
 . 121 
 
 Whyte, 111 
 
 Baynton v. Barstow, . 
 
 . 346 
 
 . 194 
 
 Bays v. Beard, . 
 
 ' . 197 
 
 . 227 
 
 Beach v. Beach, 
 
 . 309 
 
 28 
 
 v. Cooke, 
 
 . 113 
 
 78 
 
 v. White, 
 
 . 317 
 
 65 
 
 Beall v. Blake, . 
 
 . 339 
 
 . 335 
 
 v. Fox, 
 
 65 
 
 <c'rs., . 65 
 
 Beals v. Cobb, . 
 
 . 317 
 
 . 47 
 
 v. Lee, 
 
 . 182 
 
 . 313 
 
 Bean v. Coleman, 
 
 . 202 
 
 . 153 
 
 v. Valle, . 
 
 79, 86 
 
 . 402 
 
 Bear v. Smith, . 
 
 . 2G2 
 
 . 203 
 
 Beard v. Hubble, 
 
 . 168 
 
 . 268 
 
 Beattic v. Johnson, 
 
 . 316 
 
 . 33 
 
 Beatty v. Byers, 
 
 . 137 
 
 . 110 
 
 v. Kurtz, 
 
 32 I 
 
 34 
 
 v. Smith & Thompson 
 
 , '-'1 
 
 . 110 
 
 Beaty v. Beatv, . 
 
 194 
 
 61 
 
 Beaufort v. Collier, . . 
 
 44 
 
 "S., 136, 188 
 
 Beavan v. Carpenter, 
 
 25 
 
 . 270 
 
 Beavers v. Smith, 
 
 . 233 
 
 79, 194 
 
 Beck v. Beck, 
 
 . 333 
 
 . 310 
 
 v. Simmons, 
 
 . 174 
 
 . 151 
 
 Becker v. Kehr, . 
 
 . 270 
 
 . 270 
 
 Beckwith v. Howard, 
 
 . 207 
 
 s, . . 151 
 
 v. Kouns, 
 
 84 
 
 25 
 
 Bective v. Hodgson, . 
 
 . 138 
 
 . 309 
 
 Beddow v. Dewitt, 
 
 . 270 
 
 . 413 
 
 Bedell v. Hoffman, 
 
 . 202
 
 TABLE OF AMERICAN CASES. 
 
 XXXIX 
 
 Beebe r. Young, 
 Beech v. Keep, . 
 Beegle v. Wentz, 
 Beekman v. The People, 
 Beers v. Reynolds, 
 
 v. Spooner, 
 Beeson r. Beeson, 
 Bein v. Heath, . 
 Belcher v. Belcher, 
 Belknap v. Sealv, 
 Bell r. Bell, 
 
 I . Fleming,' 
 
 v. Jasper, 
 
 r. Kellar, 
 
 v. Mayor of X. York, 
 
 v. Newman, 
 
 r. Pomeroy, 
 
 r. Price, 
 
 r. Schrock, 
 
 v. Thompson, 
 
 r. Twilight, 
 
 r. Williams, 
 
 r. Woodward, 
 Bellamy v. Sabine. 
 Bellas v. McCarty, 
 Beller v. Jones, . 
 Bellinger v. Shafer, . 
 Belloat r. Morse, 
 Bellows v. Dewy, 
 v. Stone, 
 
 Beman v. Rufford, 
 Bemis v . Upham, 
 Bending r. Bending, . 
 Benedict v. Lynch, . 
 Benham v. Keane, 
 Bennett v. Buchanan, 
 
 v. Butterworth, 
 v. Fulmer, . 
 v. Smith, 
 Benson v. Leroy, 
 Bent r. Yardley, 
 Beutley r. Cowman, . 
 r. Dock Co., . 
 r. Mat-key, . 
 v. Phelps, 
 r. Whittcmore, 
 Benyon v. Xettlefield, 
 Benzoin r. Lenoir, 
 Bere.sf'urd v. Drivers, . 
 Bergen r. Bennett, 
 Berger v. Duff, . 
 Bernard r. Minshull, 
 Berry v: Cox, 
 
 v. Rogers, 
 v. Williamson, . 
 Besley r. Lawrence, . 
 Best v. Blackbtirns, . 
 
 v. Schenuier, 
 
 v. Stow, 
 Bethea v. McColI, 
 
 . 177 
 80 
 33 
 69 
 
 . 228 
 . 389 
 . 01 
 . 313 
 84 
 
 . 177 
 . 48 
 . 110 
 . 2G9, 364 
 46 
 
 , 113, 118,233 
 . ' 243 
 20 
 
 . 193 
 . 317 
 91 
 
 . 151, 153 
 . 198 
 . 310 
 . 157, 177 
 159, 160, 162 
 . 183 
 . 285 
 . 303 
 . 268 
 85, 168, 338 
 . 212 
 . 211 
 . 94 
 82, 88 
 . 153 
 . 270 
 . 118 
 34 
 77 
 
 254,259, 379 
 .309 
 . 333 
 . 231 
 . 171 
 . 399 
 . 168 
 . 320 
 . 151 
 12 
 
 . 121 
 57 
 31 
 84 
 
 . 2!7 
 40, 42, 313 
 . 272 
 . 177 
 . 114 
 85 
 . 287 
 
 Bethell v. Casson, . . . 9, 12 
 
 v. Sharp, ... 33 
 
 Bethume v. Wilkins, . . . 210 
 
 Belts v. Belts, .... 310 
 
 v. Gunn, .... 168 
 
 v. Menzies, ... 6 
 v. Wirt, . . . .136 
 
 Beverly v. Brooks, . . .270 
 Bibb v. Martin, ....... . . 268 
 
 v. McKinley, . . . 281 
 v. Smith, .... 21 
 
 Bicknell v. Bicknell, . . .123 
 Biddle v. Ash, . . . .211 
 
 Biddulph & Poole's Trusts, Re, 290 
 
 Bigelowv. Hartford Bridge Co., 211 
 
 v. Maynard, . . .193 
 
 v. Wilson, . . .113 
 
 Biggs v. Kouns, . . . 205 
 
 Bill v. The Sierra Nevada Co., . 194 
 
 Billage v. Southee, . . . 184 
 
 Billington's Appeal, . . . 285 
 
 Lessee v. Welsh, . 151 
 
 Bingham v. Yeomans, . . 363 
 
 Bingham's Appeal, . . . 100 
 
 Binus v. Parr, .... 351 
 
 Birchetti>. Boiling, ... 83 
 Bird v. Styles, . . . 363 
 
 Birds v. Askey, . . . .275 
 
 Bishop v. Day, ... . .270 
 
 v. Breckles, . . 241, 243 
 Bispham v. Price, . . 188, 192 
 Bitzer v. Hahn, .... 103 
 
 Black v. Black, . . . .337 
 
 v. Bush, . . . .243 
 
 v. Erwin, ... 57 
 
 v. Lamb, . . . 377 
 
 v. Scott, . . . 254 
 
 v. Shreve, . 199, 335, 377 
 
 Black's Appeal, . . .243 
 
 Black River Bank v. Page, . 268 
 
 Blackeney v. Dufau, . . . 243 
 
 v. Ferguson, 363, 392, 393 
 
 Blackelt v. Bales, . . 77,81 
 
 Blackie v. Clark, . . .177 
 
 Blagrave v. Roulh, . . . 184 
 
 Blain v. Harrison, . . . 234 
 
 Blair v. Bass, . . . 33, 111 
 
 v. Bromley, . . .177 
 
 Blake v. Heyuard, . . 157, 162 
 
 v. Langdon, . . .222 
 
 Blakesley v. Johnson, . . 198 
 
 Blauchard v. Mc-Dougal, . . 86 
 
 v. Tyler, . . .151 
 
 Blauvelt v. Akerman, . . 61 
 
 Blcdsoe v. Gumes, . . . 128 
 
 Bleight r. Bank, . . . 13G 
 
 Blenkinsopp v. Blenkinsopp, . 180 
 
 Blithe r. Dwinal, . . .115 
 
 Blodgettt'. Wadhams, . . 110 
 
 Blomneld r. Eyre, . . .281
 
 xl 
 
 TABLE OF AMERICAN CASES. 
 
 Blondhcim v. Moore, . . 352 
 
 Bloodgood v. Brueu, . . 254 
 
 v. Kane, . . .33? 
 
 v. Zeily, . . Ill, 227 
 
 Blount v. Garen, . . . 335 
 
 Blow i'. Gage, . . . ^ . 363 
 
 Blow v. Maynard, . . . 233 
 
 Bluck v. Galsworthy, . . 6 
 
 Blue v. Patterson, . . . 248 
 
 Blyholder v. Gilson, ... 33 
 
 Blystone v. Blystone, . .174 
 
 Boaler v. Mayor, . . . 268 
 
 Boarduian v. Meriden, . . 217 
 
 Bobbitt v. Flowers, . . . 269 
 
 Bodine v. Glading, . . 82, 88 
 
 Boerum v. Schenck, . . 61 
 
 Bogardus v. Trinity Church, 338, 339 
 
 Bogert v. Bogert, . . .17 
 
 v. Hertell, . . .138 
 
 Boggs v. Anderson, . . 151, 153 
 
 v. Chambers, . . . 230 
 
 v. Varner, . . . 153 
 
 Boiling v. Boiling, . . .227 
 
 v. Carter, . . . 157 
 
 Bellinger v. Chouteau, . .115 
 
 Bollo v. Navarro, . . . 230 
 
 Bolser v. Cushman, . . . 235 
 
 Bolton v. Gardner, . . . 338 
 
 Bolware v. Bolware, ... 66 
 
 Bond v. Hendricks, . . 196, 356 
 
 v. Little, .... 199 
 
 v. Zeigler, . . . 251 
 
 Bonney v. Bonney, . . . 335 
 
 Bonsall's Appeal, . . . 285 
 
 Boone v. Boone, . . . 230 
 
 v. Chiles, . . 162, 304 
 
 Booth v. Albertson, '. . . 313 
 
 v. Barnum, . . . 151 
 
 v. Booth,. . . 176,303 
 
 v. Sineath, . . .287 
 
 v. Stamper, . . 310, 346 
 
 Borah v. Archer, . . 233, 315 
 
 Bostock v. Floyer, . 61 
 
 v. North Stafford R. R. 
 
 Co., . . .211 
 
 Boston Co. v. Worcester R. R. 
 
 Corp., . . . 303 
 Iron Co. v. King, . . 118 
 Water Power Co. v. Gray, 193 
 Bostwick v. Atkins, . . . 184 
 Ex parte, . . . 286 
 Matter of, . . . 287 
 Botefeur v. Wyman, . . .227 
 Botsford v. Burr, ... 33 
 Bouck v. Bouck, . . . 309 
 Boughton v. Allen, . . . 312 
 v. Boughton, . . 263 
 v. Phillips, . . 389 
 Bouldin v. The Mayor of Balti- 
 more. . . 196 
 
 Bowditchv. Green, . 
 
 Bowen v. Johnson, . 
 
 v. Waters, . 
 
 Bowers v. Keesecher, 
 
 v. Oyster, . 
 
 Bowie v. Berry, .. 
 
 Bowles v. Woodson, . 
 
 Bowman v. Bates, . 
 
 v. Irons, . 
 
 f. Walker, . 
 
 Bowman's Appeal, . 
 
 Box v. Barrett, .. 
 
 Boyce v. Colclough, . 
 
 v. Coster, . 
 
 v. Smith,. . 
 
 Boyd v. Brisban, . 
 
 Ex parte, . 
 
 v. Glass, .. 
 
 v. Harris, . 
 
 v. Hawkins, . 
 
 v. Hoyt, . . 
 
 v. McDonough, 
 
 v. McLean, . 
 
 v. The Chesapeake 
 
 Boye v. Davis, . . 
 
 Boykin. v. Ciples, . 
 
 Boynton v. Boynton, . 
 
 Boyse v. Rossborough, 
 
 Brace v. Wehnert, . 
 
 Bracken v. Hambrick, 
 
 v. Kennedy, . 
 
 v. Miller, . 
 
 Brackenridge v. Holland, 
 
 Bradberry v. Keas, . 
 
 v. Manchester, 
 R. R. Co., 
 v. White, . 
 
 Bradford v. Forbes, . 
 v. Geiss, . 
 v. Greenway, 
 v. Rents, . 
 v. Romney, 
 v. Union Bank, 
 Bradish v. Gibbs, . 
 Bradley v. Chase, . 
 
 v. Chester Valley 
 
 Co., . 
 
 v. Norton, . 
 
 v. Root, . 
 
 Bradsher v. Lee, . 
 
 Brady v. Cabitt, . 
 
 v. McCosker, . 
 
 v. Waldron, . 
 
 v. Weeks, . 
 
 Bragg v. Massie's Ex'rs., 
 
 v. Paulk, .. 
 Braham v. Bustard, . 
 Brailey v. Sugg, . 
 Brandon v. Brandon, 
 Brant's Will, . . 
 
 Co., 
 
 . 269 
 . 222 
 . 84 
 . 310 
 .123 
 . 233 
 . 84 
 177, 178 
 . 77 
 .157 
 . 285 
 . 94 
 . 249 
 . 246 
 .183 
 . 400 
 . 28 
 . 282 
 .115 
 .61 
 309, 310 
 . 268 
 33 
 198 
 79 
 
 . . 313 
 . . 404 
 . . 249 
 . .83 
 . . 86 
 . . 240 
 . .157 
 . 57, 61 
 . .174 
 
 &c., 
 
 . . 217 
 . .85 
 . . 261 
 . . 344 
 . . 46 
 . 94, 9G 
 . .168 
 . . 85 
 .. 99 
 . 188,392 
 R. R. 
 
 . .121 
 . .217 
 . . 364 
 . .211 
 . .106 
 . . 249 
 . 114, 208 
 . .211 
 . .111 
 .. 28 
 . . 217 
 . . 269 
 . . 397 
 . .263
 
 TABLE OF AMERICAN CASES. 
 
 xli 
 
 Brashear r. Maccy, . . . 208 
 Brasher r. Van Cortlandt, . 297 
 Brashier v. Gratz, ... 88 
 Bratt r. Bratt, t . . . .128 
 Braxton v. Coleman, . . . 233 
 r. Lee, . . . .51 
 Brazee and Others v. Lancaster 
 
 Bank, .... 162, 163 
 Brazleton r. Brazleton, . . 151 
 Breckenridge v. Brooks, . . 118 
 t'. Ormsby, . .182 
 Breden v. Gilliland, . . . 263 
 Brenan r. Preston, . . . 233 
 Brendle r. Germ. Reformed Con- 
 gregation, .... 69 
 Brewer r. Brewer, . . 81, 86 
 r. Franklin Mills, . . 269 
 r. Wilson, . . .77 
 Brewster v. City of Xewark, . 356 
 r. Hammet, . 242, 243 
 i'. Hodges, . . .196 
 Briant v. Reed, .... 203 
 Brice r. Brice, . . . .183 
 Brickell v. Jones, . . .198 
 Bridenbecker r. Lowell, . . 33 
 Bridge v. Bridge, ... 80 
 Bridgen r. Carhartt, . 162, 163, 389 
 Bridges v. Wilkins, ... 44 
 f. Winters, . . . ' 268 
 v. Wood, ... 45 
 Bridgman v. Bridgman, . . 192 
 Briesch v. McCauley, . 198, 363 
 Briggs v. Penny, . . 29, 31 
 t'. Planter's Bank, . . 272 
 Ex parte, . . .174 
 Bright v. Mutton, . . . 239 
 v. Legerton, ... 62 
 Brill v. Stiles, . . . .331 
 Brinkerhoff r. Brown, . 303,310 
 v. Marvin, . . 272 
 r. Thallhimer, . 121 
 
 Brinnan v. Brinnan, ... 27 
 Brinson v. Thomas, . . . 269 
 Briscoe v. Power, . . . *270 
 Brittin v. Crabtree, . . . 363 
 Britton r. Lewis, ... 61 
 v. Updyke, . . .270 
 Broadbent v. State, ... 19 
 Broadus v. Rosson, . . . 286 
 Brock r. Barnes, . . . 184 
 v. Cook, .... 86 
 Brockway r. Copp, . . . 335 
 Brogden "v. Walker, . . 183,191 
 Brolasky v. Gally's Ex'rs., . 136 
 Bromley v. Elliott, . . . 239 
 Bronson v. Cahill, ... 82 
 v. La Crosse Railroad 
 
 Company, . . 321 
 Brook v. Brook, ... 30 
 Brooke r. Berry, . . 177, 183 
 
 Brookfield r. Williams, . . 233 
 
 Brooks v. Byam, . 8, 344, 392 
 
 v. Dent, . . 83, 263, 351 
 
 v. Ellis, .... 33 
 
 v. Fowle, . . .33 
 
 i'. Gibbons, . . . 335 
 
 r. Harris, . . . 268 
 
 r. Marburry, . . .31 
 
 r. Stolley, ... 20 
 
 r. Thomas, . . . 363 
 
 v. Wheelock, . 85, 86 
 
 Broome v. Curry, . . . 137 
 
 Broughton v. Broughton, . . 61 
 
 r. Ilutt, . . .189 
 
 Brower v. Fisher, . . . 290 
 
 Brown's Appeal, . . . 208 
 
 Brown v. Armistcad, . . . 168 
 
 v. Aspdcn, . . . 399 
 
 v. Brown, ... 92 
 
 v. Budd, . . . .153 
 
 . Bulkley, . ... 363 
 
 v. Caldwell, ... 94 
 
 v. Carson, . . .Ill 
 
 v. Combs, ... 29 
 
 v. Concord, ... 69 
 
 r. Duchosne, . . . 213 
 
 v. Dysinger, . . .33 
 
 v. Gilliland, ... 77 
 
 v. Haff, . . . .360 
 
 r. Higginbotham, . . 239 
 
 i'. James, . . 263, 275 
 
 v. Jones, .... 31 
 
 r. Kelsey, ... 65 
 
 v. Kennedy, . . . 169 
 
 r. Lamphear, . . .191 
 
 r. McDonald, . . 257, 309 
 
 v. Nickle, . . Ill, 123 
 
 v. Peck, . . . .182 
 
 v. Pitney, ... 92 
 
 v. Ray, .... 269 
 
 v. Ricketts, 92, 258, 316. 320 
 
 v. Sirifons, . . . 270 
 
 r. Simpson, . . . 128 
 
 v. Southworth, . . '!'.'> 
 
 v. Stewart, . . 117, 356 
 
 v. Speyers, . . . 17"> 
 
 v. Swann, . . .198 
 
 r. Van Dyke, . . . 228 
 
 r. Vanlier, . . .128 
 
 9. Winans, . . . 356 
 
 v. Wood,. . . . 1<;2 
 
 r. Worcester Bank, . . 113 
 
 Brown's Case, .... 285 
 
 Browne, Re, .... 280 
 
 Brownell v. Curtis et al., . . 334 
 
 Brubaker v. Okeson, . . . 106 
 
 Bruce . Burdet, . . . 220 
 
 r. Edwards, . . . 203 
 
 r. Smith, . . . 153 
 
 Bruch v. Lantz, . . 61, 156
 
 xlii 
 
 TABLE OF AMERICAN CASES. 
 
 Bruen v. Brucn, .... 335 
 
 v. Crane, . . . . 317, 
 
 v. Hone, .... 191 
 
 Bruin v. Knott, . . . i . 287 
 
 Brumagin v. Chew, . . . 397 
 
 Brunswick (Duke of) t;. Duke of 
 
 Cambridge, . . . * 11, 345 
 Brush v. Vanderbergh, . . 23 
 t;. Ware, . . , .251 
 Bruton v. Rutland, . . . 310 
 Bryan r. Ely the, . . 309,310 
 v. Ilickson, . . . 197 
 Bryant v. Crosby, . . .111 
 Bryant's Ex'rs. v. Boothe, . . 179 
 Bryson v. Peak. ... 87, 88 
 Buchan v. Sumner, . . 243, 246 
 Buchanan v. Matlock, . . 248 
 Buck v. Hair, . . . .61 
 v. Holloway, . . .153 
 Mt. Co. v. Lehigh Co., . 211 
 v. Pike, .... 33 
 v. Spofford, . . .268 
 v. Swazey, . 33, 363, 389 
 r. Winn, . . . .246 
 Buckles v. Lafferty, ... 61 
 Buckley v. Barber, . . . 246 
 v. Buckley, . . 246, 263 
 v. Corse, . . 195, 346 
 Buckmaster v. Thompson, . . 77 
 Budd i'. Busti, . . . .128 
 Buell v. Buckingham, . . 61 
 Buffalo, &c., R. R. Co. v. Lamp- 
 son, ..... 33 
 Buffalow v. Buffalo w, . 183,310 
 Buford r. Francisco, . . . 360 
 Bugbee v. Sargent, . . . 310 
 Building Associations. Conover, 272 
 Buist v. Dawes, .... 96 
 Bulkley v. Bulkley, . . .303 
 v. Van Wyck, . . 363 
 Bull v. Bull, . . . 31, 254 
 v. Schubcrth, . . . 239 
 Bullard v. Bowers, . . . 233 
 Bullen v. Sharp, . . . 239 
 Buller v. Dunn, .... 286 
 Bullock v. Adams, . . . 309 
 v. Boyd, . . 226, 227 
 Bulows v. Committee of O'Neall, 194 
 Bumpass v. Platner, . . . 151 
 v. Webb, . . .193 
 Bunker v. Locke, . . . 208 
 Bunn. Ex parte, . . . 364 
 Bunnell v. Read, . . . 314 
 Burbridge, Re, . . . .297 
 Burch v. Coney, . . . 334 
 Burden v. McElmoyle, . . 228 
 v. Stein, . . . 208 
 Burgess v. Burgess, . . .217 
 v. Smith, . . .198 
 Burhans v. Burhans, . . 230, 312 
 
 Burk v. Chrisman, . . 
 
 Burke v. Seeley, . . 
 
 v. Smitli, . . 
 
 Matter of, . t . 
 
 Burlingame v. Hobbs, ' . 
 
 Burn v. Poaug, ... 
 
 Burnap v. Wight, . . 
 
 Burnet v. Denniston, . . 
 
 Burnett v. Sanders, . . 
 
 Burn ham v. Kempton, . 
 
 Burns v. Huntingdon Bank, 
 
 v. Taylor, . . 
 
 Burnside v. Merrick, . . 
 
 Burpee v. Smith, . . 
 
 Burr, Matter of, .. 
 
 v. McEwen, . . 
 
 r. Sim, . 
 
 v. Smith, . 
 
 Burrows v. McWhann, . 
 
 v. Miller, . . 
 
 v. Ragland, . . 
 
 Burr's Executors v. Smith, 
 
 Burrus v. Roulhac, . . 
 
 Burt v. Cassedy, . . 
 
 v. Herron, ... 
 
 v. Wilson, . . 
 
 Burton v. Black, . . 
 
 v. Rutland, . . 
 
 i'. Wiley, . . 
 
 Burtus v. Tisdall, . . 
 
 Burwell v. Cawood, . . 
 
 v. Mandeville, . 
 
 Busbee v. Littlefield, . . 
 
 Bush r. Cooper, . . 
 
 v. Golden, . . 
 
 v. Stamps, . . 
 
 Butler r. Ardis, ... 
 
 v. Burkey, . . 
 
 v. Catling, 
 
 v. Durham, 
 
 v. Elliott, . . 
 
 v. Haskell, . . 
 
 v. Hicks, ... 
 
 * v. O'Hear, . . . 
 
 v. Spann, . . 
 
 v. Stevens, . . 
 
 v. Viele, . . . 
 
 Butman v. Porter, .. 
 
 Butts v. Genung, . . 
 
 Bybee v. Tharp, . . 
 
 Byers v. Clanahan, . . 
 
 Cabeen v. Gordon, . . 
 
 Cadbury v. Duval, . 147, 
 Cadwalader v. Montgomery, 
 Cadwalader's Appeal, . 
 Cady v. Potter, . . . 
 Caffey v. McMichael, . . 
 Cain v. Warford, . . 
 Calder v. Chapman, . . 
 
 168, 
 
 . 269 
 . , 77 
 . 346 
 . 287 
 . 220 
 . 3^J7 
 . -3G1 
 .113 
 . 389 
 . 312 
 . 269 
 .138 
 . 240 
 . 334 
 . 292 
 .61 
 
 138, 139 
 . 65 
 . 269 
 .400 
 .248 
 . 69 
 . 128 
 .153 
 . 31 
 
 128, 169 
 .202 
 .230 
 .198 
 .243 
 
 316, 323 
 . 241 
 .363 
 .110 
 . 153 
 .268 
 . 22G 
 . 269 
 
 344, 363 
 
 303, 309 
 .364 
 79, 174 
 . 59 
 .84 
 . 310 
 
 151, 153 
 .154 
 . 78 
 .310 
 .286 
 . 2G9 
 
 78, 82 
 
 156, 254 
 
 . 110 
 
 . 61 
 
 168, 202 
 
 .286 
 
 .183 
 
 . 156
 
 TABLE OF AMERICAN CASES. 
 
 xliii 
 
 Caldecott r. Griffith,. 
 Caldwell v. Blackwood, 
 
 v. Knott, 
 
 v. Stileman, 
 
 r. Taggart. . 
 
 v. Van Vlissengen, 
 
 v. Williams, . 78, 
 Calkins v. Evans, 
 t\ Lang, 
 
 Callan r. Watham, 
 Galloway r. Witherspoon, . 84, 
 Callum r. Emanuel, . 
 Calvin v. Wiggam, 
 Calvit r. Markham, . 
 Calwell v. Boyer, . . 20, 
 Camblatt f. Tapery. . 
 Camden R. R. v. Stewart, . 
 Cameron v. Mason, 
 Cammack v. Johnson, 
 Camp v. Bates, .... 
 r. Grant, .... 
 Campbell v. Baker, . 
 
 r. Baldwin, 
 
 v. Campbell, 
 
 v. Foster, . 
 
 v. Johnson, 
 
 r. McLain, . 
 
 v. Mesier, . . 267, 
 
 r. Miller, . 
 
 r. Western, 
 
 v. Whittingham, 
 Campion v. Kelley, . 
 Canal Co. v. Clark, . 
 
 r. Railroad Co., 
 Canedy v. Marcy, 
 Canfield r. Morgan. . 
 v. Sterling, . 
 Cannaday r. Shepherd, 
 Cannon v. Norton, 
 Canton Co. v. Railroad Co., 77, 
 Cape Sable Co.'s Case, 
 Caphart r. Huey, 
 Caplinger r. Stokes, . . 33, 
 Capnerr. Flemington MiniugCo. 
 Carberry v. Tennehill, 
 Carder v. Commissioners, . 
 Carey v. Calla'n, 
 
 r. Ector, .... 
 c. Hillhouse, . 
 r. Hoxey, . . 312, 
 v. Jones, .... 
 r. Smith, .... 
 Carlisle r. Stephenson, 
 Carman v. Watson, 
 Carmichael r. Browcler, 
 v. Hughes, 
 r. Heed, . 
 Carnall v. Wilson, 
 Carneal r. Wilson, 
 Cameal's Heirs v. Day, 
 
 239 
 
 Carpenter v. Benson, 
 
 13 
 
 314 
 
 v. Bower, . 
 
 . 114 
 
 211 
 
 t-. Hall, . 
 
 . 309 
 
 241 
 
 t\ Koons, . 
 
 . i:7(i 
 
 312 
 
 t\ Mutual Safety 
 
 Ins. 
 
 212 
 
 Co., . 
 
 83 
 
 194 
 
 v. Prov. &c., Ins. 
 
 Co.. : 83 
 
 363 
 
 v. Schermerhorn, 
 
 . 231 
 
 45 
 
 f. Simmons, 
 
 . 110 
 
 363 
 
 r. Snelling, 
 
 . Ill 
 
 183 
 
 Carr r. Hobbs, . 
 
 . 128 
 
 117 
 
 v. Wallace, 
 
 . 150 
 
 268 
 
 Carradine v. O'Connor, 
 
 . 329 
 
 240 
 
 Carrico v . Farmers' Bank, . 
 
 . 128 
 
 231 
 
 Carrington r. Brents, 
 
 . 157 
 
 241 
 
 v. Didier, 
 
 258, 259 
 
 304 
 
 v. Manning, 
 
 254, 255 
 
 128 
 
 Carroll v. Renich, 
 
 42 
 
 243 
 
 v. Roosevelt, . 
 
 . 310 
 
 208 
 
 Carson v. Coleman, . 
 
 . 330 
 
 243 
 
 v. Murray, 
 
 45 
 
 268 
 
 Carter v. Balfour, . 65, 69, 309 
 
 128 
 
 v. Carter, 45, 49, 111 
 
 , 162, 233 
 
 104 
 
 v. Jones, 
 
 . 317 
 
 42 
 
 v. Jordan, 
 
 19 
 
 61 
 
 f. Longworth, 
 
 335, 336 
 
 61 
 
 v. Rolland, 
 
 . 286 
 
 319 
 
 v. Sims, . 
 
 . 129 
 
 62 
 
 v. Taylor, 
 
 114, 230 
 
 192 
 
 v. Thompson, 
 
 61 
 
 179 
 
 . Treadwell, . 
 
 . 309 
 
 346 
 
 r. Wolfe, 
 
 65 
 
 217 
 
 Cartwright v. Clark, . 
 
 . 403 
 
 303 
 
 Caruthers v. Humphreys, . 
 
 . 110 
 
 168 
 
 Carver r. Miller, 
 
 . 208 
 
 206 
 
 Gary v. Folsom, 
 
 . 270 
 
 389 
 
 Case v. Abeel, . 
 
 57, 61 
 
 84 
 
 v. Carroll, 
 
 . 314 
 
 20 
 
 Casler v. Thompson, 
 
 . 86 
 
 196 
 
 Cassiday v. McDaniel, 
 
 . 317 
 
 252 
 
 Castleman v. Veitch, 
 
 230, 335 
 
 364 
 
 Caston v. Caston, 
 
 96 
 
 184 
 
 Catching v. Terrell, . 
 
 . 210 
 
 508 
 
 Gates v. Woodson, 
 
 . 182 
 
 84 
 
 Catlin v. Valentine, . 
 
 . 211 
 
 94 
 
 Caton v. Caton, 
 
 86 
 
 33 
 
 v. Lewis, 
 
 14 
 
 346 
 
 r. Willis, 
 
 . 303 
 
 312 
 
 Cauffman r. Cauffman, 
 
 92, 97 
 
 320 
 
 Cauley v. Lawson, 
 
 . 309 
 
 344 
 
 Cecil Bank v. Snively, 
 
 33 
 
 346 
 
 Center r. P. <fc M. Bank, . 
 
 . 1 o.'! 
 
 208 
 
 Central Bridge v. Lowell, . 
 
 . 211 
 
 363 
 
 Chadoin v. Magee, 
 
 . 194 
 
 309 
 
 Chadwick v. Turner, 
 
 . 153 
 
 287 
 
 Chaires v. Brady, 
 
 . 112 
 
 309 
 
 Chalf'ant r. Williams, 
 
 . 168 
 
 168 
 
 Chalmers v. Chambers, 
 
 . 3 O'J 
 
 344 
 
 Chamberlain v. Gardner, . 
 
 . 121 
 
 363 
 
 Chamberlayne v. Temple, . 
 
 . 270
 
 xliv 
 
 TABLE OF AMERICAN CASES. 
 
 Chambers v. Crabbe, . . 180 
 
 v. Mauldin, . . 38 
 
 v. Tulane, . . 84 
 
 Cbamness v, Crutchfield, . . ' 168 
 
 Champlin v. Champlin, . . 8, 45 
 
 v. Layton, . ^ . 168 
 
 Champney v. Cooke, , * . 115 
 
 Champneys v. Buchan, .' . 303 
 
 Chance v. McWhorter, . .128 
 
 v. Teeple, . . .21 
 
 Chandler v. Dyer, . . .162 
 
 v. Fillet, ... 58 
 
 v. Goodrich, . . 231 
 
 v. Moulton, . . 61 
 
 Chaney v. Smallwood, . .281 
 
 Chant v. Brown, ... 6 
 
 Chapin v. Cram, . . .110 
 
 v. Weed, ... 61 
 
 Chaplain v. Givens, . . .37 
 
 Chapline v. Moore, . . . 287 
 
 Chapman v. Chapman, 23, 124, 309 
 
 v. Esgar, . . . 257 
 
 v. Hamilton, 150, 272, 314, 
 
 318 
 
 r. Hughes, . .111 
 
 Chappedelaine v. Dechenaux, . 227 
 Chappell v. Allen, . . .110 
 Charles R. Bridge v. Warren 
 
 Bridge, 376 
 
 Charnley v. Hansbury, . . 86 
 
 Chase v. Abbott, . . .115 
 
 v. Lockerman, . 263, 275 
 
 v. Manhardt, . . . 363 
 
 v. Series, . . .310 
 
 Chase's Case, .... 335 
 
 Chastain v. Smith, ... 86 
 
 Cheale v. Kenward, . . 78, 83 
 
 Cheesbrough v. Millard, . 270, 272 
 
 Cheeseborough v. Greene, . 268 
 
 Cheever v. Perley, . . . . 115 
 
 Cherry v. Belcher, . . 320, 363 
 
 v. Stem, . . . 210 
 
 Chesapeake & Ohio Co. v. Young, 
 
 210, S78 
 
 Chesson v. Chesson, . . . 227 
 Chester v. Greer, . . . 250 
 Chesterfield v. Janssen, . . 176 
 Cheswell v. Chapman, . . 231 
 Chew v. Barnett, . . .162 
 v. Farmers' Bk. of Maryland, 6, 7 
 v. Nicklin, . . .136 
 Chewing v. Singleton, . 167, 168 
 Chichester v. Marquis of Donegal, 10 
 Child v. Brace, . . . .61 
 v. Burton, . . . 128 
 Chilton v. Braiden's Adm'tx, . 128 
 Chiswell v. Morris, . . . 233 
 Choteau v. Jones, . . . 153 
 Chouteau v. Burlando, . .115 
 Christ v. Diffenbach, . 106, 168 
 
 Christean v. Ellis, . . 240, 243 
 
 Christler's Exr's. v. Meddis, . 136 
 
 Christmas v. Mitchell, . . 21)0 
 
 Christ's Hospital v. Grainger, . (57 
 
 Christy v. Barnhart, ... 86 
 
 Chubb v. Peckham, ... 77 
 
 Church v. Sterling, ... 33 
 
 Churcher v. Guernsey, . . 151 
 
 Churchill's Heirs v. Aiken's Adm'rs, 61 
 
 City Bank v. Bangs, . . .203 
 
 City Council v. Page, 151, 157, 224 
 
 City of Phila. v. Davis, 94, 95, 97 
 
 v. Girard's Heirs, 65 
 
 City of Rochester v. Curtiss, . 211 
 
 Clabaugh v. Byerly, . . . 150 
 
 Clack v. Carlon, . . .61 
 
 Clagett v. Hall, . . .350 
 
 Glamorgan v. Guisse, . .310 
 
 Clancy v. Craine, . . . 334 
 
 Clanricarde v. Henning, . . 184 
 
 Clapp v. Thaxton, . . . 416 
 
 v. Rice, . . . .209 
 
 Clark v. Beach, . . . 256 
 
 v. Bundy, . . .23 
 
 v. Burnham, ... 33 
 
 v. Condet, . . Ill, 112 
 
 v. Davis, . . . 335 
 
 v. Garfield, ... 56 
 
 v. Hackett, . . .363 
 
 v. Henry, . . .111 
 
 v. Henshaw, . . . 263 
 
 v. Hilton, ... 33 
 
 v. Hunt, . . . 128, 129 
 
 v. Long, . . . .312 
 
 v. Malpas, . . 168, 133 
 
 v. Partridge, . . . 106 
 
 v. Phelps, . . . 335 
 
 v. Reed, . . . .392 
 
 v. Saginaw Bank, . . 339 
 
 r. White, . . .211 
 
 v. Wilson, . . .241 
 
 Clark's Adm. v. Van Reimsdyk, 363 
 
 Appeal, . . .208 
 
 Clarke v. Clayton, . . .231 
 
 v. Dutcher, . . .188 
 
 v. Franklin, . . .139 
 
 v. Gilbert, . ' . .239 
 
 v. Lott, .... 78 
 
 v. Reins, ... 77 
 
 Re, .... 286 
 
 Clarkson v. De Peyster, . . 302 
 
 v. Morgan, . . .157 
 
 Clason v. Morris, . . 21,269 
 
 Claussen v. La Franz, . . 33 
 
 Clay & Craig v. Hart, . . 92 
 
 v. Turner, . , .174 
 
 r. Wren, . . . .117 
 
 Clayton r. Bussey, / 168 
 
 v. Freet, . . .168 
 
 v. Illingsworth, . . 83
 
 Clayton v. Thompson, 
 Clayton's Case, . 
 Clearley v. Babcock, 
 Clegett v. Kilbourne, 
 Cleghorn v. Insv 
 
 Columbus, 
 Cleland v. Gray, 
 Clements v. Bowes, 
 v. Moore, 
 Clery's Appeal, 
 Cleveland v. Cit. 
 Clifton v, Davis, 
 v. Livor, 
 Climer v. Ilovey, 
 Clive v. Carew, 
 Cloud v. Hamilton, 
 Clowes v. Beck, 
 Clute v. Potter, 
 Coats v. Robinson, 
 Cochran v. Rison, 
 Cochrane v. Willis, 
 Cocke v. Evans, 
 v. Phillips, 
 v. Trotter, 
 Cockell v. Taylor, 
 Cockrell v. Warner, 
 Cocrou v. Middleton, 
 Coder v. Huling, 
 Coe v. Turner, . 
 v. Winnipise 
 Coffee v. Newsom, 
 
 v. Ruffin, 
 Coffecn v. Brunto, 
 
 v. Brunton, 
 Coffing v. Taylor, 
 Cogswell v. Cogswell, 
 Coil r. Pittsburgh C 
 Colby v. Kenniston, 
 Colclough v. Boyse, 
 Cole Co. v. An 
 Coleman v. Barnes, 
 i'. Gage, 
 v. Melle: 
 v. Rose, 
 v. Woe 
 Coleman's Case, 
 
 Appeal, 
 Coles and Oth< 
 v. Coles, 
 v. Raymond, 
 v. Sims, 
 v. Trecothick, 
 Collett v. Morrison, 
 Collingwood v. Row, 
 Collins v. Archer, 
 v. Carlisle, 
 
 TABLE OF AMERICAN CASES. xlv 
 
 pson, . . 363 
 
 Collins v. Smith, . . 33, 84, 91 
 
 . 221 
 
 Collis v. Robbins, . . .263 
 
 ock, . . 1G8 
 
 Collom v. Francis, . . .12 
 
 irne, . . 239 
 
 Colman v. East Counties R. R. Co., 32 1 
 
 irance Bank of 
 
 Coloni, Re, .... 375 
 
 . 243 
 
 Colt v. Lasnier, . . .251 
 
 . 399 
 
 Colton v. Ross, . . . 248, 309 
 
 es, . . . 319 
 
 v. Wood, ... 33 
 
 re, . . . 363 
 
 Columbian Government v. 
 
 . 203 
 
 Rothschild, .... 2 
 
 Gas Co, . 211 
 
 Columbus v. Jacques, . . 211 
 
 . 187 
 
 Colvin, Matter of, . . 298, 355 
 
 . 197 
 
 v. Owen, . . . 269 
 
 . 85 
 
 Colyer v. Finch, . . 151, 162 
 
 . 363 
 
 Combs v. Boswell, . . . 363 
 
 >n, . . . 17 
 
 Comegys v. State Bank, . . 269 
 
 . 393 
 
 Coml. Bk. v. Western Bank, 269, 270 
 
 . 198 
 
 Commercial Ins. Co. v. McLoon, 309 
 
 n, . . .46 
 
 Commonwealth v. Addicks, . 283 
 
 i, . 418 
 
 v. Duffield,^ . 99 
 
 is, . . . 188 
 
 v. Franklin Can. 
 
 . 31Q, 399 
 
 Co., . . 356 
 
 , . .233 
 
 v. McAlister, . GO 
 
 . 363 
 
 v. Martin, 42, 138 
 
 r, . 174 
 
 v. Martin's Exr's., 136 
 
 ler, . . . 402 
 
 v. Shelby, . 263 
 
 ton, . . 315 
 
 Com. of Moyamensing v. Long, 301 
 
 33 
 
 Compton v. Greer, . . .227 
 
 . 310 
 
 Comstock v. Rayford, . . 302 
 
 ogee Manuf. Co., 211 
 
 Conally v. Cruger, . . . 356 
 
 a, ... 356 
 
 Conant v. Warren, . . . 335 
 
 61, 174 
 
 Conklin v. Conklin, . . .233 
 
 a, ... 217 
 
 Conner v. Banks, . . .111 
 
 on, . . 217 
 
 v. Chase, ... 20 
 
 , . . .168 
 
 v. Drake, . . 192, 373 
 
 well, . .261 
 
 v. Lewis, ... 33 
 
 h College, . 177 
 
 Conrad v. Foy, .... 268 
 
 on, . . . 153 
 
 v. Harrison, . . . 270 
 
 'se, . . .249 
 
 Consequa v. Fanning, . 227,379 
 
 icy, . . . . 336 
 
 Consolidated Co. v. Riley, . 161 
 
 es, . . . 310 
 
 Constable v. Bull, . . .31 
 
 ?, . . 196, 356 
 
 Contee v. Dawson, . . 312, 350 
 
 ersh, . . 226 
 
 Conter v. Pratt, . . .417 
 
 , 363 
 
 Converse i>. Blumrich, . .128 
 
 ley, ... 46 
 
 v. McKee. . . .243 
 
 . 290 
 
 Conway v. Alexander, ... Ill 
 
 al, . . . 90 
 
 t;. Ellison, . . 176, 198 
 
 3, Exr's. v. Bowne, 85 
 
 Conwell v. Evill, . . .Ill 
 
 . 389 
 
 v. Sandige, . 242, 243, 214 
 
 d, 21 
 
 Cook v. Barr, . . . . 2:;o 
 
 j ^ L 
 . 152 
 
 v. Burton, . . . 2.".0 
 
 ick, ... 61 
 
 v. Cole, . . . .174 
 
 on, . . . 160 
 
 v. Cook, . . . .176 
 
 low, . . 141 
 
 v. Ellington, . . .31 
 
 r, . 162 
 
 v. Hinsdale, . . . 267 
 
 le, . . 30, 31 
 
 v. Gaiza, . . . .151 
 
 p's Heirs, 136, 142 
 
 t. Gregson, . . . 252 
 
 editors, . .110 
 
 r. Ilosslyn, . . . 205 
 
 rson, . 221, 230 
 
 v. Smith, . . . .114 
 
 burcr. 46 
 
 v. Vick. 192
 
 xlvi 
 
 TABLE OF AMERICAN CASES. 
 
 Cooke v. Husbands, . . 45, 4G 
 
 v. Lamotte, . . . 184 
 
 v.Nathan, . . .168 
 
 Coombs v. Warren, . . . 114 
 
 Coon v. Swan, 6 
 
 Ooonrad v. Coonrad, . . 156 
 
 Cooper v. Bigby, . . " . 270 
 
 v. Davis, . .114, 208 
 
 v. Farmers' Ins. Co., . IT I 
 
 v. Gunn, . . .317 
 
 In re, . . . . 283 
 
 v. Martin, . . .113 
 
 v. Whitney, . . .111 
 
 Coopwood v. Bolton, . . 228 
 
 Cope v. Smith, . . . 268 
 
 Cope's Appeal, . . . 243 
 
 Copeland v. Crane, . . . 363 
 
 Coppidge v. Threadgill, . 48, 174 
 
 Corbett v. Corbett, . . . 230 
 
 Corbin v. Wilson, . . . 287 
 
 Cordingly v. Cheeseborough, . 90 
 
 Corning v. Lowerre, . .211 
 
 v. Troy Iron Factory, . 199 
 
 Cornish v. Wilson, 254, 255, 263, 272 
 
 Cornwell v. Lee, . . . 310 
 
 Cornwise v. Bourgum, . . 286 
 
 Corps v. Robinson, ... 6 
 
 Corry v. Caxton, . . .153 
 
 Corron v. Mellaudon, . . 323 
 
 Corson v. Mulvaney, . . 82 
 
 Cortleyeu v. Hathaway, . 122,353 
 
 Cory v. Eyre, .... 147 
 
 Coster v. Clarke, . . 316,400 
 
 v. Griswold, . . . 198 
 
 Cotheal v. Talmage, . . . 108 
 
 Cottam v. Eastern Counties R. R. 
 
 ' Co., .... 58 
 
 Cotton v. Hart, . . . 151 
 
 Cottrell's Appeal, . . . 269 
 
 Couch v. Terry, . . .268 
 
 Courtney v. Courtney, . . 39 
 
 Coutant v. Servoss, . . . 270 
 
 Covell v. Doloff, . . 114,118 
 
 Covenhoven (Case of), . . 292 
 
 Coventry v. Chichester, . . 105 
 
 Cowden v. Cowden, . . 248 
 
 Cowden's Estate, . . . 270 
 
 Cowdin v. Cram, . . . 361 
 
 Cowles v. Buchanan, . . 303 
 
 r. Brown, . . . 186 
 
 v. Carter, . . 196,356 
 
 v. Whitman, . . .77 
 
 Cowls v. Cowls, . . . 283 
 
 Cowman v. Hall, . . . 233 
 
 v. Kingsland, . . 19 
 
 Cox v. Corkcndall, . . . 263 
 
 v. Coventon, ... 84 
 
 v. Cox, .... 86 
 
 t>. Fenwick, . . .128 
 
 v. Hickman, . . . 239 
 
 Cox v. McMullen, . . . 231 
 
 v. Mayor of Griffin, . . 338 
 
 v. Peters, ^ 243 
 
 v. Scott, .... 360 
 
 v. Williamson, . . . 282 
 
 v. Wood, . . . .128 
 
 Craddock v. Cabiness, . .183 
 
 Cradock v. Owen, . . 52,263 
 
 v. Piper, . . .61 
 
 Craft v. Lathrop, . . .202 
 
 Craig v. Kitbridge, . . .168 
 
 v. Leslie, 33, 42, 136, 137, 138, ] 39 
 
 v. Tappin, . . .110 
 
 Craighead v. Wilson, . . 375 
 
 Craik v. Clark, . . .113 
 
 Cralle v. Meen, . . 258, 275 
 
 Cram v. Green, . . . 258 
 
 Crandall v. Hoysradt, . . 389 
 
 v. Bacon, . . . 197 
 
 Crane v. Burntragcr, . . 205 
 
 v. Conklin, . . 84, 183 
 
 v. DeCamp, . . .111 
 
 v, Hewitt, . . .179 
 
 Crapster v. Griffith, . . .233 
 
 Crawford v. Summers, . .168 
 
 Crawley v. Poole, . . . 309 
 
 v. Timberlake, . . 208 
 
 Creager v. Brengle, . . . 269 
 
 Greaser v. Robinson, . .301 
 
 Creath v. Smith, . . .417 
 
 Creed v. Lancaster Bank, 101, 416 
 
 Crenshaw v. Anthony, . .153 
 
 Crest v. Jack, . . . .268 
 
 Crews v. Burcham, . . . 202 
 
 v. Threadgill, . .ill 
 
 Crittenden v. Brainard, . .115 
 
 Crocheron v Jaques, ... 37 
 
 Crocker v. Crocker, . . .150 
 
 v. Higgins, . . 304, 312 
 
 Crockett i>. Crain, . . . 243 
 
 v. Maguire, . . 153 
 
 Croft v. Arthur, . . 33,101 
 
 v. Moore, . . . 269 
 
 Cromer v. Pickney, . . . 258 
 
 Crompton v. Yasser, . . 77,269 
 
 Cromwell v. Bank of Pittsburg, 1 1 5 
 
 Cronise v. Clark, . . . 356 
 
 Crooker v. Crooker, . . . 243 
 
 v. Jewell, . . .115 
 
 Crosby v. Berger, ... 6 
 
 v. Huston, . . . 153 
 
 v. Mason, . . . 205 
 
 Cross v. Cheshire, . . . 240 
 
 v. De Vallc, . . 202, 403 
 
 v. Hcpner, . . .111 
 
 v. Robinson, . . .110 
 
 v. Sprigg, . . .106 
 
 Crossler v. Lightowler, . . 211 
 
 Croton Turnpike v. Ryder, . 211 
 
 Crouch v. Puryear, . . . 208
 
 TABLE OF AMERICAN CASES. 
 
 xlvii 
 
 Crowder r. Clowes, 
 Croxall v. Shererd, 
 Cruger v. Halliday, 
 
 r. Heyward, . 
 Crumb, Ex parte, 
 Crutchfield v. Donelly, 
 
 Ex parte, 
 Cryder's Appeal, 
 Caddie v. Rutter, 
 Cu.lworth v. Hall's Adm'r., 
 Cuft' i'. Borland, 
 Cullison v. Bossom, . 
 Cullum v. Bloodgood, 
 r. Casey, 
 
 . 105 
 40 
 
 37, 38, 30, 303 
 . 287 
 . 282 
 . 356 
 . 285 
 . 263 
 . 77 
 40 
 
 . 84 
 . . 12 
 222, 241 
 198 
 
 Cumberland v. Codrington, 
 
 261, 265, 274 
 
 Cumberland R. R. App., . . 309 
 
 Cumming, Re, .... 293 
 
 Cummins v. White, . .221, 222 
 
 Cunningham v. Ashley, . .170 
 
 r. Littlefield, . 240 
 
 r. Rogers, . .415 
 
 r. Rome R. R. Co., 211 
 
 Carrie v. Steele, . . . 188 
 
 Curry v. Larer, . . .107 
 
 Curtis v. Curtis, . . . 283 
 
 v. Lunn, . . . 151 
 
 v. Mund, . . . 155 
 
 r. Tyler, . . . .310 
 
 Cashing 0. Ayer, . . . 270 
 
 Cushney v. Henry, ... 37 
 
 Cutting v. Carter, . . . 208 
 
 Cuyler v. Bogart, . 8, 308 
 
 t>. Ensworth, . . . 269 
 
 t>. Ferrill, . . .230 
 
 Dabbs v. Dabbs, 
 Dabney v. Green, 
 Dackett v. Skinner, . 
 Daggett v. Lane, 
 Daily v. Litchfield, 
 Daking v. Demming, 
 Dule c. Hamilton, 
 
 r. McEvers, 
 
 v. Rosevelt, 
 Dalzell v. Crawford, . 
 Dana v. Brown, 
 Danbury r. Robinson, 
 Dandridge v. Minge, . 
 Danels v. Taggert, 
 Danforth v. Lowry, . 
 
 v. Smith, 
 Daniel v. Ballard, 
 v. Joyner, 
 r. Morrison's Ex'rs., 
 
 Daniell r. Mitchell, 
 
 Daniels v. Lewis, 
 
 v. Mowry, 
 
 Darbey v. Whitaker, 
 Darby v. Baine, 
 
 21, 
 
 . 375 
 . 113 
 . 285 
 . 184 
 77, 312 
 . 227 
 . 28 
 . 303 
 . 194 
 84, 156 
 . 321 
 . 147 
 . 261 
 . 337 
 51 
 
 . 309 
 
 . 269 
 
 . 270 
 
 309, 403 
 
 191,397 
 
 86 
 
 . 113 
 . 77 
 , 233 
 
 Darling v. Hammer, . . 309, 335 
 Darrah v. McXair, ... 50 
 Dashiel v. Collier, . . . 2:-!3 
 Dashiell v. Att.-Gen. . . 05 
 
 Daughaday v. Paine, . .123 
 
 Davenport v. Davenport, . . 208 
 David v. Grahame, . . . 121 
 Davidson v. Cowan, . . . 153 
 v. Little, . . 79, 186 
 r. Moss, . . .179 
 v. Potts, . . 301, 302 
 Davies v. Davies, . . . 297 
 Davis v. Christian, . . .241 
 v. Clabaugh, . . . 320 
 v. Davis, . . . .230 
 v. Harkness, . . 281, 286 
 v. Harrison, . . . 303 
 v. Hoopes, . . . 194 
 v. Johonnot, . . . 285 
 v. Mapes, . . . 308 
 
 t'. Mayor, &c., of New York, 356 
 v. Mikell, . . .269 
 v. Reed, . . . .210 
 i'. Roberts, . . . 286 
 v. Rogers, . . .168 
 v. Tiugle, . . .176 
 & Brooks v. The Brig Sen- 
 eca, .... 233 
 Davison v. Davison, . . .86 
 v. De Freist, . . 285 
 Davoue v. Fanning, . 61,309,325 
 Daw v. Terrel, . . . .124 
 Dawes v. Howard, . . . 287 
 Dawson v. Dawson, ... 37 
 v. Jay, . . . .282 
 v. Lawes, . . . 268 
 v. Lawrence, . . 302 
 
 Re 282 
 
 v. Williams, . . .238 
 
 Day r. Roth 33 
 
 " v. The State, ... 3 
 
 v. Welles 193 
 
 Deaderick t % . Watkins, . 79, 174 
 Deal v. Bogue, . . : .243 
 Dean v. Dean, .... 128 
 v. Mitchell, . . . 233 
 Dearborn v. Taylor, . . .110 
 Dearing v. Lightfoot, . . 152 
 Deas v. Harvie, .... 19 
 Deatly r. Murphy, . . .183 
 Deaver v. Eller, . . . 356 
 v. Erwin, . . 198, 356 
 De Barante v. Gott, ... 37 
 De Beauvoir v. De Beauvoir, . 138 
 Decamp v. Feay, ... 90 
 Decaters v. Le Ray de Chaumont, 61 
 Deckard v. Case, . . .241 
 Decker v. Hall, . . 112, 114 
 
 v. Miller, . . .390 
 Da Godey v. De Godey, . . 35G
 
 xlviii 
 
 TABLE OF AMERICAN CASES. 
 
 De Graffenreid, Ex parte, . . 282 
 Bering v. Earl Wincbelsea, 268, 269 
 De Hart v. Baird, . . 3G3 
 
 Delloghton v. Money, . .314 
 Dehon v. Foster. . . . 194 
 Deibler v. Barwick, . . .128 
 Deil's Ex'rs. v. Roger, . - . 226 
 De Jarnette t>. De Jarnette, . 56 
 Delafield v. State of Illinois, . 194 
 Delanay v. McConnell, . .111 
 De Lane v. Moore, . . .153 
 Delano v. Windsor, . . . 363 
 Delassus v. Posten, . . . 128 
 De La Vergne v Evertson, . 312 
 Delaware and Maryland R. R. Co. 
 
 v. Stump, . . . .211 
 
 Deloney v. Walker, . . . 231 
 
 Delony v. Hutchinson, . . 246 
 
 De Louis v. Meek, , . . 419 
 
 Dcmarest v. Wynkoop, 115, 151, 173 
 
 De Mattos t>. G'ibson, . 81, 207 
 
 De Meza r. Generis, . . .110 
 
 Doming v. Colt. . . 241, 246 
 
 Dennis v. Dennis, . . 85, 168 
 
 v. Green, . . 356 
 
 v. Riley, . . . 389 
 
 v. McCagg, . . .31 
 
 Dennisonr. Goehring, 33, 40, 99, 100 
 
 Denny v. Branson, . . 207, 208 
 
 Dent v. Sumracrlin, . . . 356 
 
 Denton v. Denton, . . . 360 
 
 v. Graves, . . .194 
 
 v. Jackson, . . .321 
 
 v. MacNeil, . . .177 
 
 v. Stewart, . . .91 
 
 v. Woods, . . . 230 
 
 Depeyster v. Gould, 33 
 
 v. Graves, . . 196, 356 
 
 De Foe v. Sohlke, . . .207 
 
 Derbyshire v. Home, . . 402 
 
 Derush v. Brown, . . . 233 
 
 Desborough v. Harris, . . 203 
 
 Despain v. Carter, ... 86 
 
 Deveau v. Fowler, . . . 243 
 
 De Veney v. Gallagher, . . 210 
 
 Devereaux v. Cooper, . 308, 344 
 
 Devon (Duke of) v. Eglin, . 319 
 
 Dewar v. Maitland, ... 96 
 
 Dewitt v. Ackerman, . . . 230 
 
 v. Yates, . . .104 
 
 De Wolfv. Mallett, . . .312 
 
 Dexter v. Arnold, 227, 363, 386, 416, 
 
 417 
 
 Dey v. Dunham, . . Ill, i53 
 Diamond v. Lawrence, . . 157 
 Dias v. Bouchard, . . 316, 320 
 Dick v. Pitchford, . . 42, 44 
 Dickenson v. Grand Junction 
 
 Canal Co., . . . .207 
 Dickerson v. Commissioners, . 198 
 
 Dickey v. Thompson, . . 270 
 Dickinson v. Codwise, . . 33 
 v. Dickinson, . . 244 
 v. Glennery, . . 74 
 f. Legare, . .240 
 Dickson v. Miller, ... 46 
 v. Montgomery, . 65, 69 
 Didier v. Davison, . . . 340 
 Dietricschen v. Calburn, . . 207 
 Digman v. McCollum, . .153 
 Dike v. Greene, ... 77 
 Dill v. Shahan, . . . 168, 402 
 Dillman v. Cox, . . .101 
 Dilly v. Bernard, . . . 363 
 v. Heckrotte, . . . 304 
 Diman v. Providence R. R. Co., 171 
 Dimes v. Steinberg, . . 248, 353 
 Dimmock v. Bixby, . . 310,355 
 Dinsmoor v. Hazleton, . 12,344 
 Disbrow v. Henshaw, . . 283 
 Dixie v. Wright, . . . 144 
 Dixon Crucible Co. v. Guggen- 
 heim, 217 
 
 Dixon v. Gayfere, . . . 137 
 
 v. Warters, . . . 232 
 
 Dob v. Halsey, . . . .239 
 
 Dobson v. Land . . .118 
 
 v. Pearce, . . .198 
 
 Doby v. Mitchell, ... 46 
 
 Dodd v. Seymour, ... 77 
 
 Doddington v. Hallet . . 268 
 
 Dodge v. Dodge, ... 94 
 
 v. Evans, . . .128 
 
 v. Perkins, . . . 302 
 
 Dobs,on v. Simpson, . . . 251 
 
 Doe v. Doe, . . . .202 
 
 Doe d. Newman v. Rusham, . 146 
 
 Doebler's Appeal, ... 84 
 
 Doggett v. Emerson, . . . 191 
 
 Dominickr. Michael, 84, 88, 136, 379 
 
 Donaldson v. Kendall, . . 240 
 
 Donelson Admr's. v. Posey, . 310 
 
 Doner v. Stauffer, . , 242, 243 
 
 Donnell v. Mateer, . . . 230 
 
 Donohoo v. Lea, . . . 141 
 
 Doran v. Brazleton, . . . 301 
 
 Dorr v. Shaw, . . . .272 
 
 Dorsey v. Clarke, ... 29 
 
 v. Dorsey, . . .61 
 
 v. Gilbert, . . . 285 
 
 v. The Hagerstown Bank, 196 
 
 Doub v. Barnes, . . 310, 356 
 
 Dougan v. Blotcher, ... 86 
 
 Dougherty v. Jones, . . 379, 383 
 
 v. Hampston, . . ' 77 
 
 v. McColgan, . . 118 
 
 D. Van Nostrand, 244, 246 
 
 v. Walters, . . 399 
 
 Douglas v. Andrews, . . 287 
 
 v. Sherman, . . 113, 406
 
 TABLE OF AMERICAN CASES. 
 
 xlix 
 
 Douglas v. Webster, . 
 Douglass v. Wiggins, 
 Dow v. Jewell, . 
 Dowdall v. Lenox, 
 Dowell v . Jacks, 
 Dower v. Fortner, 
 Dowle v. Saunders, . 
 Dowling v. Betzemann, 
 Downer v. Staine, 
 Downey v. Hotchkiss, 
 Downing v. Palmateer, 
 Dowuman v. Rust, 
 Dow's Petition, 
 Dows v. Durfee, 
 Doyle v. Sleeper, 
 v. Teas, . 
 Dozier v. Edward, 
 
 v. Lewis, 
 Drake v. Pell, . 
 
 v. Gooderidge, 
 v. Symes, 
 Drane v. Gunter, 
 Draper v. Gordon, 
 Drayton, Ex parte, 
 
 Matter of, . 
 Dresner v. Allentown, 
 Dresser v. Dresser, 
 Driver v. Driver, 
 Drope v. Miller, 
 Drown ~v. Smith, 
 Drum v. Simpson, 
 Drummond v. Drummond . 
 Drury v. Conner, 
 v. Roberts, 
 Drusadow v. Wilde, 
 Dryden v. Hanway, 
 Du Bois v. Baum, 
 Dubourg de St. Colombo's Heirs 
 
 v. The U. S., . 
 Dubs v. Dubs, 
 Ducker v. Belt, . 
 Dudley v. Bosworth, . 
 
 v. Matlack, 
 Dufossat v . Bereus 
 Duffy v. Calvert, 
 
 v. Masterton 
 Duncan v. Duncan, . 
 v. Hayes, 
 v. Lyon, 
 v. Mizner, 
 
 Duncombe v. Greenacre, 
 Dunham v. Jackson, . 
 r. Minard, . 
 v. Osborn,^ . 
 v. Rogers, . 
 v. Winans, . 
 Dunkley v. Van Bnren, 
 Dunlap v. Clements, . 
 v. Dunlap, 
 v. Gibbs, 
 D 
 
 96 
 
 Dunlap v. Mitchell, . 
 
 . 61 
 
 . 208 
 
 Dunn v. Cooper, 
 
 309, 310 
 
 33 
 
 v. Olney, . 
 
 . 272 
 
 . 389 
 
 v. Moore, . 
 
 . 86 
 
 . 290, 291 
 
 v. Sparks, 
 
 . 269 
 
 . 191 
 
 Dunnien v. Coy, 
 
 . 33 
 
 . 151 
 
 Dunning v. Stearns, . 
 
 . 221 
 
 77 
 
 Dunnock v. Dunnock, 
 
 . 309 
 
 . 311 
 
 Dunseth v. Bank U. S., 
 
 . 233 
 
 . 86 
 
 Dunwidie v. Kerley, . 
 
 . 221 
 
 . 121 
 
 Dupont v. Johnson, . 
 
 . 287 
 
 . 156 
 
 Duponti v. Mussy, 
 
 . 347 
 
 . 285 
 
 Dupuy v. Johnson, 
 
 268, 270 
 
 . 228 
 
 Durard v. Bacott, 
 
 . 168 
 
 . 101 
 
 Durell v. Pritchard, . 
 
 . 219 
 
 . 151 
 
 Durette v. Briggs, 
 
 . 128 
 
 . 321 
 
 Dusten v. NeM'comer, 
 
 90 
 
 . 268 
 
 Dutch Church v. Mott, 
 
 . 84 
 
 . 136 
 
 Duval v. Bibb, . 
 
 . 128 
 
 . 313 
 
 v. Waters, 
 
 . 210 
 
 11 
 
 Duvall v. Myers, 
 
 82, 86 
 
 . 37 
 
 v. Waters, 
 
 207, 208 
 
 17, 402, 403 
 
 Duryea v. Burt, 
 
 . 247 
 
 . 292 
 
 Dwight v. Pomeroy, . 
 
 . 168 
 
 . 296 
 
 Dwinal v. Smith, 
 
 5 
 
 . 230 
 
 Dyer v. Bean, 
 
 . 363 
 
 30, 31 
 
 v. Clark, . 
 
 . 246 
 
 . 340 
 
 v. Martin, . 
 
 128, 364 
 
 . 376 
 
 v. Potter, . 
 
 . 389 
 
 . 208 
 
 Dykers v. Wilder, 
 
 . 20 
 
 . 364 
 
 
 
 d. .324 
 
 Earl v. Dresser, 
 
 . 288 
 
 . 281, 363 
 
 v. Halsey, . 
 
 62 
 
 196, 243, 356 
 
 Earl Talbot v. Scott, . 
 
 208, 211 
 
 . 100 
 
 Early v. Friend, 
 
 . 230 
 
 33 
 
 Eastburn v. Kirk, 
 
 392, 402 
 
 . 88 
 
 Eastland v. Vanarsdel, 
 
 . 80 
 
 's Heirs 
 
 v. Amoskeag Co., 
 
 . 214 
 
 . 222 
 
 Eastman v. Plumer, . 
 
 . 77 
 
 44, 51 
 
 Eaton's Appeal,. 
 
 . 26 
 
 . 397, 416 
 
 Eaton v. Benton, 
 
 . 100 
 
 33, 101 
 
 v. Eaton, 
 
 . 196 
 
 . 128 
 
 v. Watts, 
 
 . 33 
 
 . 198 
 
 Ebenhardt's Appeal, . 
 
 . 271 
 
 . 156 
 
 Eberly v. Groff, 
 
 . 362 
 
 28 
 
 Eckert v. Baeert, 
 
 . 323 
 
 96 
 
 Eckford v. De Kay, . 
 
 285, 364 
 
 . 211 
 
 Eckman v. Eckman, . 
 
 . 363 
 
 19, 240 
 
 Eddleston v. Collins . 
 
 402, 403 
 
 . 312 
 
 Eddy v. Traver, 
 
 . 273 
 
 48 
 
 Edelsten v. Edelsten, 
 
 . 212 
 
 . 3GO 
 
 Edgar v. Donnally, 
 
 . 37 
 
 . 231 
 
 Edleston v. Vick, 
 
 . 217 
 
 . 233 
 
 Edmonds v. Crenshaw, 
 
 61, 153 
 
 . 239 
 
 Edmonds' Appeal, 
 
 . 168 
 
 . 399 
 
 Edmondson v. Welsh 
 
 . 233 
 
 . 117 
 
 Edmonson v. Dyson, 
 
 48 
 
 . 196, 356 
 
 Edmunds v. Foley, 
 
 10 
 
 . 261, 263 
 
 Edrington v. Allsbrooke, . 
 
 . 196 
 
 . 303 
 
 Edwards v. Atkinson, 
 
 . 86
 
 1 
 
 TABLE OF AMERICAN CASES. 
 
 Edwards v. Bonhannon, . . 317 
 
 v. Burt, . . .186 
 
 v. Handley, ... 84 
 
 v. Ferryman, . . 356 
 
 Exr'sn. Trumbull, . 123 
 
 Egbert v. Brooks, ^ . 61 
 
 Egberts v. Wood, . . . 241 
 
 Egerton v. Brownlow . . 42 
 
 Elders Elder, . . . .85 
 
 Elderkin v. Fitch, . . 347, 402 
 
 v. Shultz, . . .317 
 
 Eldred v. Camp, . . 196, 356 
 
 Eldridge v. Eldridge, . . 233 
 
 v. Hill, . . .199 
 
 v. Smith, . . .202 
 
 Elias, Matter of, ... 294 
 
 Elkins v. Edwards, . . .110 
 
 Ellard v. Cooper, . . .275 
 
 Ellerte v. The Heirs and Legatees 
 
 ofEllerte, . . . .287 
 
 Ellicott, v. Carter, . . . 263 
 
 v. Ellicott, . . .302 
 
 v. Warford, . . . 355 
 
 Ellingwood v. Stevenson, . . 360 
 
 Elliot v. Morris, ... 28 
 
 Elliott v. Adams, . . .193 
 
 v. Armstrong, . . 33 
 
 v. Carter, . . . 263 
 
 v. Maxwell, . . . Ill 
 
 v Merryman, . . . 156 
 
 v. North Eastern R. R. 
 
 Company,. . . 210 
 
 v. Pool, .... 61 
 
 v. Waring, . . 48, 317 
 
 Ellis v. Ellis, . . . 31,86 
 
 v. Paige, .... 263 
 
 v. Woods, .... 45 
 
 Ellison v. Commissioners, . . 211 
 
 v. Daniels, . . .114 
 
 v. Moffat, .' . .227 
 
 Ellsworth v. Curtis, . . . 333 
 
 Elmedorf v. De Lancy, . .312 
 
 Elrod v. Lancaster, . . .61 
 
 Elwood v. Diefendorf, . . 269 
 
 Ely v. McKay, .... 82 
 
 Emanuel v. Bird, . . . 243 
 
 Emerson v. Udoll, . . . 198 
 
 Emmons v. -Bradley, . . . 272 
 
 v. Kiger, ... 88 
 
 Endicott v. Penny, ... 19 
 
 Engel v. Schewerman, . . 198 
 
 English v. Foxall, . . . 309 
 
 v. Lane, . . .111 
 
 v. Russel, . . .128 
 
 Enos v. Hunter, ... 33 
 
 Ensley v. Balentine, ... 33 
 
 Ensworth v. Lambert, . .315 
 
 Enthoven v. Cobb, ... 15 
 
 Eppes v. Randolph, . . 269 
 
 Erickson v. Willard, ... 31 
 
 Erskine v. Townsend, . . 121 
 
 Erwin v. Meyers, . . .91 
 
 v. Parham, . . 79, 174 
 
 Eshleman v. Davis, . . .33 
 
 Eskridge v. McClure, . . 128 
 
 Eslava v. Lepetre, . . . 233 
 
 Espey v. Lake, .... 184 
 
 Espin v. Pemberton, . . . 157 
 
 Essex v. Berry, .... 198 
 
 Estill v. Clay, . . . .312 
 
 Eubank v. Poston, . . .128 
 
 Evans v. Boiling, . . .371 
 
 v. Duncan, . . 257, 272 
 
 v. Evans, . . 233, 244 
 
 v. Goodlet, . . .128 
 
 v. Jones, . . . 153 
 
 v. Kingsberry, . 90, 136 
 
 v. Knorr, . . .45 
 
 v. Tatem, . . .395 
 
 Everett v. Winn, . . . 317 
 
 Everitt v. Watts, . . .338 
 
 Everly v. Rice, . . 196, 268, 356 
 
 Evertson v. Booth, . . 272, 400 
 
 v. Tappen, . . .233 
 
 Ewell v. Tidwell, . . .248 
 
 Ewing v. Blight, . . .352 
 
 Eyre v. Countess of Shaftesbury, 281 
 
 v. Eyre, .... 86 
 
 v. Golding, . . .103 
 
 v. Potter, . . 174, 176, 303 
 
 Eyrick v. Hettrick, ... 37 
 
 Eyton v. Mostyn . .196, 356 
 
 Fabre v. Golden, ... 48 
 Fairbanks v. Bloomfield, . . 110 
 Fairchild v. Valentine, . . 220 
 Falcke v. Gray, . . . 77, 79 
 Fall River Whaling Company v. 
 
 Borden 243 
 
 Fallon v. R. R., . . . . 81 
 Fancher v. Ingraham, . . 335 
 Fant t>. Miller, . . . 20,21 
 Farina v. Silverlock, . .217, 378 
 Farringer v. Ramsey, . . 33 
 
 Farley v. Blood, . . 202, 206 
 
 v. Bryant, . 168, 363, 364 
 v. Goocher, . . .111 
 Farmers' Bank v. Vanmeter, . 198 
 Farmers' & Mechanics' Bank v. 
 
 Griffiith, .... 346 
 
 Farnham v. Clements, . . 33 
 Farnsworth v. Childs, . . 153 
 Farnum v. Bennett, . . .110 
 Farrar v. Haselden, . . . 258 
 Farrell v. McKee, . . .363 
 v. Parlier, . . .113 
 Fassett o. Traber, . . 270, 272 
 Faulkner Adm'x v. Harwood, . 19 
 Fausler v. Jones, ... 33 
 Fay v. Noble, . . . . 239
 
 TABLE OF AMERICAN CASES. 
 
 li 
 
 Fearns v. Young, ... 61 
 
 Fears v. Brooks, . . 44, 46 
 
 Feidler r. Darrin, . . .111 
 
 Felch t\ Hooper, ... 20 
 
 Felder v. Davis, . . . 310 
 
 Fellows v. Tann, ... 44 
 
 Fells v. Read, .... 77 
 
 Fcutis v. Robins, . . . 198 
 
 Fenwick r. Macey, . . .115 
 
 Fenwicke v. Gibbes, . . . 379 
 
 Ferguson v. Davol Mines, . .217 
 
 Ferguson v. Fisk, . . . 194 
 
 r. O'Harra, . 338, 339 
 
 r. Wilson, ... 77 
 
 Ferris v. Irving, ... 81 
 
 Field v. Arrow-smith, . 37, 61 
 
 v. Eaton, .... 92 
 
 v. Evans .... 45 
 
 v. Jones, .... 355 
 
 v. Moore, .... 289 
 
 v. Schieffelin, . 17, 251, 402 
 
 v. Wilson, . . . .303 
 
 Filley r. Fassett, . . .217 
 
 Filman v. Divers, ... 33 
 
 Finch v. Houghton, . . . 121 
 
 v. Shaw, . . . .162 
 
 Findlay v. Smith, . . .208 
 
 Findlay's Ex'r v. U. S. Bank, . 272 
 
 Finley v. Aiken, ... 77 
 
 v. Bank U. S., . . 315 
 
 Lessee of, v. Riddle, . 40 
 
 Firmstone v. De Camp, . . 168 
 
 Firth v. Ridley, .... 81 
 
 Fish v. Lightner, ... 77 
 
 v. Miller, . . . .338 
 
 v. Rowland, . . . 317 
 
 Fisher v. Boody, . 176, 177, 303 
 
 v. Fields, .... 28 
 
 v. Johnson, . . . 129 
 
 v. Kay, . . . .90 
 
 v. Moolick ... 77 
 
 v. Tucker, . . . 240 
 
 Fisk v. Sarber, .... 61 
 
 Fitch v. Weber, . . . .138 
 
 Fitzpatrick v. Featherstone, 77, 84 
 
 v. Nolan, . . 81 
 
 Fitzsimmons v. Goslin, . . 177 
 
 Fitzsimons v. Fitzsimons, . . 96 
 
 Flagg v. Mann, 9, 15, 28, 123, 151, 158, 
 
 162 
 
 Flavell v. Harrison, . . 217 
 
 Fleeson v. Nicholson, . . 233 
 
 Fleming v. Beaver, . . . 269 
 
 v. Buchanan, . 99, 263 
 
 v. Burgin, . . . 153 
 
 v. Donahoe, ... 28 
 
 v. Giltner, . . . 310 
 
 v. McHall, ... 33 
 
 Flemyng v. Hector, . . . 239 
 
 Fletcher v. Ashburner, . 136, 137 
 
 Fletcher v. Holmes, . . . 114 
 
 v. Wilson, . . . 403 
 
 Flint v. Clinton Co., ... 37 
 
 v. Warren, ... 32 
 
 Florence v. Hopkins, . . . 230 
 
 Flowerton v. Wimbush, . . 313 
 
 Floyd v. Barker, ... 32 
 
 Fluck v. Replogle, . . . 117 
 
 Fog v. Johnstone, . . . 240 
 
 Fogg v. Rogers, . . . 128, 310 
 
 Foley v. Hill, .... 20 
 
 Folk v. Beidelham, . . . 150 
 
 Follansbee v. Kilbreth, . . 33 
 
 Foltz v. Pourie & Dawson, . 19 
 
 Fonda v. Penfield, ... 57 
 
 v. Jones, . . . 128 
 
 Fountain v. Ravenel, . . 65 
 
 Foot v. Webb, .... 77 
 
 Forbes v. Whitlock, . . .321 
 
 Ford v. Gaithur, . . . 283 
 
 v. Irwin, . . . .111 
 
 Forde v. Herron, . . . 246 
 
 Fordham v. Wallis, . . 269, 275 
 
 Fordice v. Bridges, ... 30 
 
 Foreman v. Murray, . . . 286 
 
 Forkner v. Stuart, . . 111,241 
 
 Forman, In re, . . . . 290 
 
 v. Rodgers, . . . 317 
 
 Forsythe v. McCreight, . . 198 
 
 Fort v. Ragusin, ... 23 
 
 Foss v. Haynes, .... 310 
 
 Foster v. Alston, . . .280 
 
 v. Burem, . . . 404 
 
 v. Cook, .... 309 
 
 v. Crenshaw's Ex'rs, . 274 
 
 v. Goddard, . . . 386 
 
 F. Gordon, . . . 233 
 
 v. Handley, . . . 254 
 
 v. Reynolds, . . .110 
 
 v. State Bank, . . .198 
 
 v. Trustees, . . 33, 269 
 
 Tourniquet v. Perkins, . . 386 
 
 Foust v. Moorman, . . . 230 
 
 Fowle v. Lawrason, . . . 220 
 
 Fowler v. Fowler, . . .168 
 
 Matter of, ... 293 
 
 v. Saunders, . . . 303 
 
 Fraim v. Frederick, . . . 151 
 
 Franklin Mill Co. w.Schmidt, . 197 
 
 France v. France, . . . 356 
 
 Francis v. Love, ... 88 
 
 Franklin v. Osgood, . . . 309 
 
 Frazer v. Legare, . . . 312 
 
 Frazier v. Brownlow, . * 46 
 
 v. Frazier, ... 32 
 
 Frederick v. Haas, ... 33 
 
 Freeland v. Cocke, . . .227 
 
 r. Dasey, . . .250 
 
 v. Heron, . . .228 
 
 v. Stansfield, . . 243
 
 Hi 
 
 TABLE OF AMERICAN CASES. 
 
 Freeland v. Wilson, . . . 203 
 
 Freeman v. Curtis, . . 168, 191 
 
 v. Elmendorf, . 196, 356 
 
 v. Flood, ... 45 
 
 v. Freeman, . . 86 
 
 v. Hartman, . . 180 
 
 v. Harwood, '. . 61 
 
 v. Kelly, ... 33 
 
 Freetly v. Barnhart, . . .84 
 
 Frelick v. Truner, . . .286 
 
 French v. French, . . .183 
 
 v. Royal Company, . 157 
 
 v. Shotwell, . . 338, 339 
 
 Freto v. Brown, . . .287 
 
 Friley v. Hendricks, . . . 417 
 
 Frink v. Lawrence, . . .211 
 
 Fripp v. Fripp, .... 79 
 
 Frisby v. Ballance, . . 77, 84, 85 
 
 Frith v. Cartland, . 57, GO, 221 
 
 Frizzle v. Patrick, . . .211 
 
 Fronty v. Fronty, . . .186 
 
 Frost v. Beekman, . , . 151 
 
 In re, . . . . 297 
 
 Frothingham v. McKusic, . .114 
 
 v. Stacker, . . 153 
 
 Frye v. Bank of Illinois, . . 114 
 
 Fuller v. Benjamin, . . . 321 
 
 v. Yates, .... 94 
 
 Fulwood v. Bashfield, . . 269 
 
 Furlong v. Edwards, . . 352, 356 
 
 Furman v. Clark, ... 81 
 
 v. Fisher, . . 31, 37 
 
 Furnam v. Coe, .... 57 
 
 Futrell v. Futrell, . . .183 
 
 Gable v. Daub, .... 92 
 Gadsden v. Carson, . . . 243 
 v. Lord, . . . 269 
 Gafney v. Reeves, . . . 373 
 Gage v. Brewster, . . .113 
 Gaines v. Chew, . . 248, 310 
 v. Spann, . . . 280 
 Gaither v. Gaither, . . . 248 
 Galbraith v. Gedge, . . . 233 
 Galdsborough v. Ringgold, . 168 
 Gale v. Archer, . . . .82 
 Gallagher v. Fayette Co. R. R., 207 
 Gallagher's Appeal, . . . 263 
 Gallatian v. Cunningham, 17,232 
 v. Erwin, . . 17, 403 
 Gallatin v. Pilot, . . .268 
 Gallego's Ex'rs v. Attorney-Gen- 
 eral, 65 
 
 Galloway v. Hamilton's Heirs, . 129 
 
 Galphin v. McKinney, . ' . 316 
 
 Gait v. Calland, . . .240 
 
 v. Jackson, . . .Ill 
 
 Gammon v. Freeman, . . 233 
 
 v. Howe, . . .107 
 
 3-anetson v. Weaver, . . 243 
 
 Gannett v. Blodgett, . . . 270 
 
 Gano v. Gilruth, . . 233, 234 
 
 Gans v. Renshaw, ... 85 
 
 Ganse, Matter of, . . . 293 
 
 Garden v. Ingram, . . .118 
 
 Gardenhire v. Hinds, . . 45 
 
 Gardiner v. Bering, . . . 208 
 
 Gardner v. Emerson, . . .113 
 
 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 
 
 v. Lyles, . . . 258 
 
 Garnett v. Macon, 79, 88, 156, 251, 261 
 
 Garr v. Bright, . . .313 
 
 v. Drake, .... 379 
 
 Garrard v. Frankel, . . . 168 
 
 Garretson v. Vanlon, . . 88 
 
 v. Weaver, . . 243 
 
 Garrett v. Garrett, ... 33 
 
 v. Lynch, . . .196 
 
 v. White, . . . 230 
 
 v. Wilkinson, . . 101 
 
 Garson v. Green, . . .128 
 
 Garth v. Cotton, . . . 208 
 
 Gartland v. Nunn, . . . 314 
 
 Garton v. Bates, . . . 235 
 
 Garten's Heirs v. Bates, . . 303 
 
 Gartside v. Outrame, . . 6 
 
 Gary v. Cannon, . . . 2G8 
 
 Gas Company v. Broadbent, . 211 
 
 Gass v. Mason, . ' . . 183 
 
 v. Stinson, . . 371, 379 
 
 v. Wilhite, . . 65, 67 
 
 Gate v. Adams, . . . 267 
 
 Gatewood v. Rucker, . .317 
 
 Gay v Ballou, . . . .287 
 
 v. Hamilton, . . . Ill 
 
 Gayle v. Singleton, . . . 346 
 
 Gearhart v. Jordan, . . 267, 272 
 
 Geisser v. Beall, . . .312 
 
 Gelston vr-Hoyt, . . 18,19 
 
 v. Sigmund, . . 207 
 
 Genet v. Beekman, . . 42 
 
 Gentry v. Rogers, ... 82 
 
 George v. Kent, . . . 151 
 
 v. Strange, . . . 198 
 
 v. Wood, . . .270 
 
 George's Creek Coal Company v. 
 
 Detmold, . . . .210 
 
 Gerken's Estate, . . . 275 
 
 Gernon v. Boecaline, . 300 
 
 Gevers v. Wright's Exr's., . . 42 
 
 Gibbes v. Cobb, . . .153 
 
 Gibbs v. Clagett, . . .310 
 v. Marsh, ... 30 
 
 Gibler v. Trimble, . . .159
 
 TABLE OF AMERICAN CASES. 
 
 liii 
 
 Gibson v. Bailey, . . .121 
 v. Broadfoot, . .192 
 
 v. Foot, . . 27, 33 
 
 v. Goldtwaite, . 203, 205 
 r. McCormick, . 261, 263 
 v. Tilton, . . 196, 356 
 Gifford v. New Jersey R. R. Co., 321 
 v. Thorn, . . .174 
 Gilbert v. Carter, ... 33 
 v. Chapin, ... 31 
 v. Colt, .... 360 
 v. Gilbert, . . .168 
 v. Lewis, ... 45 
 r. McEachen, . . 286 
 
 v. Mickle, . . .211 
 v. Mosier, . . . 363 
 v. Sutliff, . . .314 
 v. Trustees of the East 
 
 Newark Co., . . 87 
 
 Gilkey v. Paige, . . . 344 
 
 Gill v. Lyon, . . . .270 
 
 v. McAtee, . . . .153 
 
 Gillespie v. Moon, . . 85, 168 
 
 t\ Somerville, . 233 
 
 Gillett v. Hall, . . . .240 
 
 Gillis r. Hall, .... 77 
 
 Gilman v. Brown, . . . 128 
 
 v. Hamilton, . . 69 
 
 v. Hidden, . . .121 
 
 Gilmore v. Gilmore, . . . 379 
 
 v. N. A. Land Co., . 243 
 
 v. Patterson, . . 363 
 
 Gilroy v. Alis, .... 84 
 
 Gist v. Frazier, . . . 174 
 
 Givens v. Campbell, . . 197 
 
 v. McCalmont, . .118 
 
 Glass v. Hulbert, . . .168 
 
 Glasscock v. Glasscock, . . 128 
 
 v. Minor, . . . 177 
 
 Glaze v. Dray ton, . . .81 
 
 Gleaves v. Paine, ... 47 
 
 Glenn v. Fowler, . . . 194 
 
 v. Grover, . . 308, 363 
 
 v. Randall, . . 21, 363 
 
 Glenorchy v. Bosville, . . 40 
 
 Gloninger v. Hazard, . . 226 
 
 Glover v. Fisher, . . 87, 88 
 
 Goddard v. Gardner, . . 6 
 
 v. Lawyer, . . .110 
 
 Godwin r. Yonge, . . . 168 
 
 Golden v. Maupin, . . . 235 
 
 Goldsmith v. Berthold, . . 239 
 
 v. Guild, ... 88 
 
 Goltra v. Lanasack, . . . 168 
 
 Gomez v. Tradesman's Bank, 28, 33 
 
 Gompertz v. Pooley, . . . 194 
 
 Good v. Burton, . . . 12<> 
 
 Goodall v. Little, . . 6, 7, 17 
 
 Goodburn v. Stevens, . . 233 
 
 Goodhue v. Barnwell, . . 281 
 
 Goodrich v. Friedersdorff, . 118 
 v. Pendleton, 337, 339, 340 
 Goodson v. Ellison, ... 38 
 Goodwin v. McGehee, . . 157 
 Goodwyn v. State Bank, . 196, 356 
 Gordon v. Atkinson, . 33, 138 
 
 v. Gordon, . . .179 
 v. Graham, . . . 110 
 v. Green, ... 28 
 v. Stevens, ... 94 
 v. Watkins, ... 23 
 Gore . Bowser, ... 6 
 v. Gibson, . . .183 
 
 v. Pettis, .... 302 
 Gorham v. Gorham, . . . 290 
 Goss v. Lester, .... 272 
 Gossin v. Brown, . . . 269 
 Gott v. Cook, . . . .136 
 Gough v. Crane, ... 86 
 v. Pratt, . . .198 
 
 Gould v. Gould, . . .248 
 
 v. Hayes, . 250, 314, 315 
 
 v. Winthrop, . . .261 
 v. Womack, ... 77 
 Goundie v. Northampton Co., . 150 
 Gourley v. Woodbury, . . 230 
 Gouveneur v. Elmendorff, 176, 303 
 Gouverneur v. Lynch, . .270 
 Governor v. McEwen, . . 222 
 Gowan v. Jeffries, . . . 243 
 Gracie v. Freeland, . . . 397 
 Graeff v. De Turk, . . .186 
 Graff v. Castleman, . . 151,251 
 Graham v. Davidson, . . 58 
 v. Hackwith, . 84, 167 
 v. Lambert, . . 58 
 
 v. Little, . . .183 
 v. Pancoast, . . 183 
 w.Samuel, . . . 153 
 r. Tankersley, . 402, 403 
 Graham's Appeal, . . .282 
 Grant v. Duane, . . . 113 
 v. Davenport, . . 353 
 
 v. Grant, ... 36 
 
 v. Quick, . . .194 
 
 . U. S. Bank, 20, 62, 163 
 
 Graser v. Stelhvagen, . . 241 
 Gratz v. Cohen, . . .183 
 
 Graves v. Dugan, ... 33 
 Gray v. Downman, . . . 173 
 v. Gray, .... 392 
 v. Haig, .... 403 
 v. Jenks, . . . .110 
 v. Regan, . . 334, 335 
 
 v. Washington, . . 227 
 
 Graydon v. Graydon, . 230, 231 
 
 Great Falls Co. v. Worster, . 117 
 Great Northern R. R. Co. v. Man- 
 chester R. R. Co., . . 207 
 Greedy v. Lavender, . . 49
 
 liv 
 
 TABLE OF AMERICAN CASES. 
 
 Green v. Butler, . . .112 
 v. Carey, . . .12 
 
 v. Coorland, ... 88 
 v. Demoss, . . . 128 
 v. Drinker, . . .153 
 v. Givan, . . . 147 
 
 v. Goodall, ... .181 
 v. McKinney, . . . 312 
 v. Morris and Essex R. R. 
 
 Co., . . . 168 
 
 v. Oakes, . . .215 
 
 v. Phillips, . . 196, 356 
 
 v. RamagCj . . . 270 
 
 v. Slayter, . . 151, 157 
 
 v. Thompson, . . 183 
 
 v. White, . . .157 
 
 v. Winter, . . 59, 61 
 
 Greenawalt v. Kreider, . . 268 
 
 Greene v. Greene, . . 233, 246 
 
 Greenin v. Hoey, . . . 196 
 
 Greenleaf v. Qneen, ... 55 
 
 Greenon v. Hoey, . . . 356 
 
 Greenway v. Greenway, . .136 
 
 Greenwood v. Broadhead, . 243 
 
 Greer v. Caldwell, . . .168 
 
 Gregory v. Mighell, ... 77 
 
 v. Murrell, . . . 269 
 
 v. Valentine, . .413 
 
 Gregory's Exr's. v. Forrester, . 227 
 
 Gresley v. Mousley, . . . 184 
 
 Gretton v. Haward, . . .92 
 
 Greville v. Browne, . . . 263 
 
 Gridley v. Dole, . . .240 
 
 Griffin v. Cunningham, . . 84 
 
 v. Blanchar, . .128 
 
 v. Graham, ... 65 
 
 v. Morrell, . . . 309 
 
 Griffith v. Beecher, . . . 141 
 
 v. Coleman, . . 313 
 
 v Cope, ... 67 
 
 v. Frederick Co. Bank, 77 
 
 v. Griffith, . . 37, 157 
 
 v. Phillips, . . .232 
 
 v. Ricketts, . . 31, 139 
 
 Griggs v. Thompson, . . 335 
 
 Grim v. Wheeler, . . . 344 
 
 Grimes v. Hoyt, . . .175 
 
 Grimstone v. Carter, . .153 
 
 Griswoldr. Smith, . . . 153 
 
 Gritton v. McDonald, . .128 
 
 Groce v. Field, . . . 418 
 
 Groesbeck v. Seeley, . . 33 
 
 Gross v, Leber, . . .168 
 
 Grosvenor v. Austin, . . 243 
 
 Groton v. Roxborough, . . 114 
 
 Grove v. Brien, .... 270 
 
 v. Fresh, . . .310 
 
 v. Potter, . . .311 
 
 Grover v. Flye, .... 110 
 
 v. Hall, . . . .227 
 
 Groves v. Fulsome, . . . 331 
 
 Grubb's Appeal, . . . 247 
 Guard v. Bradley, ... 81 
 
 Guerard v. Gaillard, . . . 298 
 
 Guerryv. Durham, . 329,356,419 
 
 v. Ferryman, 417,418,420 
 
 Guion v. Knapp, . . . 270 
 Gully v. Crego, ... 31 
 
 Gum v. Hanison, . . . 199 
 
 Gump's Appeal, . . .168 
 
 Guthrie v. Gardner, . . 33, 101 
 
 Guthrie's Appeal . . . 297 
 
 Gwin v. Melmoth, . . .211 
 
 Hackett v. Alcock, . . . 107 
 Hackwith v. Damson . . 151 
 
 Haddix's Heirs v. Haddix's Adm's., 61 
 Hadley v. Hopkins, ... 67 
 v. Pickett, . . . 128 
 Hadlock v. Bullfinch, . . 110 
 Hagan v. Walker, . . 250, 315 
 Hagill v. Curril, . . . 350 
 
 Hagthorp v. Hook, 8, 118, 151, 308, 
 344, 363 
 
 Hahn v. Hart, .... 198 
 
 Haight v. Bnrr, . . . 352 
 
 v. Childs, ... 86 
 
 v. Morris, . . . 363 
 
 Haigood v. Wells, . . . 286 
 
 Haines v. Beach, . . . 315 
 
 v. Ellis .... 46 
 
 v. O'Conner, . . .33 
 
 Halbert v. Grant, . . . 310 
 
 Haldeman v. Haldeman, . . 240- 
 
 Hale i>. Hale, . . . .221 
 
 v. Henric, . . . 246 
 
 v. James, .... 233 
 
 Haley v. Bagley, . . . 315 
 
 Haleyburton v. Kershaw, . . 261 
 
 Hall's Ex'rs. v. Click, . . 128 
 
 Hall and Wife v. Hall et al., . 86 
 
 v. Hall, 92, 94, 121, 243, 274, 312 
 
 v. Hinds, .... 193 
 
 v. Jones, .... 128 
 
 v. Piddock, . . . 230 
 
 v. Read, .... 168 
 
 v. Ross, .... 84 
 
 v. Stewart, . . . 240 
 
 v. Thompson, . . .177 
 
 v. Towne . . . .121 
 
 v. Warren, . . . . G7 
 
 Hallet v. Collins, . . .162 
 
 v. Thompson, ... 42 
 
 Hallett v. Hallett, . . 258, 320 
 
 Halo v. Schick, . . .111 
 
 Halstead v. Rabb, . . .221 
 
 Halsted v. Mecker's Ex'rs., . 56 
 
 Ham ?'. Goodrich, . . .86 
 
 Hamberlin v. Ferry, . . . 248 
 
 Hamblin v. Dinneford, . 81,207
 
 TABLE OF AMERICAN CASES. 
 
 Iv 
 
 Hambrook v. Smith, ... 5 
 
 Hamilton v. Hamilton, . . 240 
 
 v. Hughes, . . . 233 
 
 v. Lockhart, . . 303 
 
 v. Marks, . 203, 205, 206 
 
 v. Neel, ... 6 
 
 v. Nutt, . . .153 
 
 v. Rogers, . . .110 
 
 r. Whetridge, . .211 
 
 Hamlin r. Bridge, . . .313 
 
 r. Hamlin, . . .168 
 
 Hammer r. McEldowney, . . 77 
 
 Hammersly 0. Barker, . . 392 
 
 v. Smith, . . 44 
 
 Hammond r. Hammond, . . 103 
 
 r. Mich. State Bank, 310 
 
 Hampton r. Levy, . . . 269 
 
 Hamsberger v. Kinney, . . 198 
 
 Hanberger v. Root, ... 90 
 
 Hancock v. Day, . . . 268 
 
 Handley v. Fitzhugh, . . . 221 
 
 Hanison v. Sterry, . . . 241 
 
 Hanks, Matter of, ... 292 
 
 Hanna v. Spotts, . . . 281 
 
 v. Ratekin, ... 88 
 
 Hannahan r. Nichols, . . 360 
 
 Hanson v. Field, . . . 303 
 
 0. Keating, ... 47 
 
 Harbers v. Gladsen, ... 90 
 
 Harbison r. Lemon, . . 84, 183 
 
 Harcum v. Hadnall, . . 136, 137 
 
 Hardeman v. Berge, . . . 192 
 
 Harden v. Miller, . . . 335 
 
 Harder v. Harder, ... 33 
 
 Hardin v. Baird, ... 28 
 
 Harding v. Glyn, ... 31 
 
 t\ Handy, . 183, 191, 303 
 
 v. Randall, . . .177 
 
 Hardwick v. Hook, . . . 364 
 
 Hardy v. Hawkashaw, . . 139 
 
 v. Sproule, . . .268 
 
 Hare v. Deusen, . . . .128 
 
 Hares v. Stringer, . . . 318 
 
 Hargrave v. Hargrave, . 82 
 
 Haring r. Kauffman, . . . 324 
 
 Harkness i\ Fraser, . . . 184 
 
 v. Remington . . 78 
 
 Harlan v. Wingates, . . . 363 
 
 Harland r. Binks, ... 31 
 
 Harland's Account, . . . 287 
 
 Harmer . Gooding, . . . 320 
 
 0. Gwynne, . . . 199 
 
 Harper v. Archer, . . .33 
 
 v. Phelps, ... 31 
 
 v. Reno,. . . 151, 153 
 
 r. Williams, . . .128 
 
 Harper's Appeal, . . Ill, 118 
 
 Harrington v. Brown, . . 61 
 
 v. Slade, . . .408 
 
 Harris v. Arnold, . . . 153 
 
 Harris v. Carter, . . .151 
 v. Harlan, . . . 128 
 v. Knickerbacker, . . 86 
 0. Sangston, . . . 356 
 0. Smith, .... 84 
 0. Thomas, . . . 208 
 0. Tyson, . . . .178 
 v. Williams, . . . 389 
 Harrisburg Bank v. Tyler, . . 33 
 Harrison v. Deramus, . . 91 
 
 v. Guest, . . .174 
 v. Harrison, . 31, 33, 47 
 
 0. Long, . . .221 
 0. Mennomy, . . 28 
 0. Mock, ... 57 
 0. Nettleship, . . 194 
 0. Rowan, . . . 376 
 v. Rush, . . . 375 
 0. Town, ... 79 
 0. Tuberville, . . 168 
 Harrold v. Lane, ... .33 
 Hart v. Coffee, . . . .319 
 0. Farmers' Bank, . 54, 153 
 0. Freeman, . . 20, 21 
 r. Hart, .... 86 
 0. Hawkins, . . . 246 
 0. Mayor of Albany, . 210,211 
 0. McKeen, . . . .310 
 0. Ten Eyck, . . 57, 379 
 Hartshorn 0. South Reading, . 211 
 Hartshorne v. Cuttrell, . . 193 
 0. Hartshorne, . . 233 
 Harvard College v. Soc. for pro- 
 moting Theological Education, 313 
 Harvey v. Alexander, . . 364 
 
 0. Foley, . . .268 
 Harwood v. Kirby, . . . 230 
 Haskell v. Haskell, ... 9 
 Hassam v. Day, .... 230 
 Hassanclever 0. Tucker, . 263, 274 
 Hassard 0. Rowe, . . . 285 
 Hassel 0. Hawkins, . . . -105 
 Hasting's Case, . . . .272 
 Hatcher 0. Hatcher, . . 86, 270 
 Hathaway 0. Foy, . . .202 
 Hattier v. Etinaud, . . .192 
 Hatton v. Weetns, . . .61 
 Haughty v. Strang, . . .198 
 Haughwout 0. Murphy, . .128 
 Hauser v. Shore, . . . 156 
 Havens v. Hassey, . . . 241 
 0. Havens, ... 94 
 0. Sackett, ... 94 
 Havrell 0. Ellsworth, . . . 211 
 Hawkes 0. Hubback, ... 44 
 Hawkins v. Clermont, . . 335 
 v. Gathercole, . . 7 
 0. Hawkins, . . 364 
 0. King, . . .110 
 Hawley v. Clowes, . . 208, 210
 
 Ivi 
 
 TA-BLE OF AMERICAN CASES. 
 
 Hawley v. Cramer, . 
 
 v, James, 22, 5T, 61, 136, 
 
 v. Mancius, . 
 v. Sheldon, . 
 v. Wolverton, 
 Hawralty v. Warren, 
 Hay v. Marshall, . 
 Haydon v. Goode, . 
 Hayes v. Caldwell, . 
 v. Heyer, .. 
 v. Johnson, . 
 v. Ward, . . 
 Haynes v. Forshaw, . 
 v. Kershow, . 
 Hays, Ex parte, . . 
 v. Hall, .. 
 v. Heidleburg, . 
 v. Jackson, . 
 v. Thode, . . 
 v. Wood, . . 
 Hayward v. Carroll, . 
 v. Purssey, . 
 Haywood v. Cope, . 
 v. Hutchins, 
 v. Judson, . 
 Hazen v. Thurber et al , 
 Head v. Muir, . . 
 Headley v. Goundry, . 
 Heard, Ex parte, . 
 Heath v. Wright, . 
 Heathcotev.The North Stafford- 
 shire R. R. Co., . 
 Hebburn v. Snyder, . 
 Heckard v. Sayre, . 
 Hedges v. Riker, . 
 Hedrick v. Hearn, . 
 Heeney, Matter of, . 
 Heirs of Holman v. Bank of Nor- 
 folk, 
 
 Heist v. Baker, . . 
 Hellen v. Crawford, . 
 Heller, Matter of, . 
 Helling v. Lambey, . 
 Helm v. Darby, . . 
 Helms v. Franciscus, . 
 Hemming v. Swinnerton, 
 Hemiup, Matter of, . 
 Henderson v. Ardery, 
 v. Burton, 
 v. Dennison, 
 v. Dickey, 
 v. Hays, . 
 v. Lowry; . 
 
 Hendricks v. Robinson, 
 Hendrickson v. Hinckley, 
 Hendrix v. Money, . 
 Henn v. Walsh, . . 
 Hennessy v. Andrews, 
 Henry v. Compton . 
 
 151, 
 
 312 
 
 136, 
 
 138, 
 
 
 233 
 
 61, 
 
 272 
 
 
 82 
 
 
 306 
 
 82, 
 
 168 
 
 220, 
 
 222 
 
 
 275 
 
 
 3 
 
 
 356 
 
 
 203 
 
 
 268 
 
 
 251 
 
 
 78 
 
 
 286 
 
 
 81 
 
 
 95 
 
 263, 
 
 275 
 
 
 153 
 
 
 270 
 
 20, 
 
 304 
 
 
 303 
 
 
 77 
 
 
 220 
 
 
 231 
 
 
 233 
 
 
 192 
 
 
 106 
 
 
 282 
 
 rd- 
 
 217 
 
 
 194 
 
 
 128 
 
 
 88 
 
 
 285 
 
 
 86 
 
 
 297 
 
 or- 
 
 310 
 
 
 128 
 
 
 268 
 
 
 296 
 
 
 85 
 
 
 259 
 
 
 364 
 
 
 193 
 
 385, 
 
 392 
 
 
 106 
 
 128, 
 
 254 
 
 
 336 
 
 
 169 
 
 
 77 
 
 
 121 
 
 61, 
 
 303 
 
 
 198 
 
 
 320 
 
 
 243 
 
 
 153 
 
 
 270 
 
 Henry v. Henry, . . 
 
 v. Liles, .. 
 
 v. Morgan, . 
 
 Henshaw v. Wells, . 
 
 Hensman v. Fryer, . 
 
 Henson v. Ott, . . 
 
 Hepburn v. Auld, . 
 
 v. Carts, . 
 
 v. Dunlop, . 
 
 Herbert v. Schofield, . 
 
 v. Wren, . 
 
 Herr v. Bierbower, . 
 
 Herrick v. Blair, . 
 
 Herron v. Williamson, 
 
 Hertell v. Bogert, . 
 
 Hester v. Wilkinson, . 
 
 Heth v. Cocke, . . 
 
 Hetherington v. Clarke, 
 
 Hewett v. Loosemoor, 
 
 v. Sturdevant, 
 
 Hewlett v. Hewlett, . 
 
 Heyward v. Cuthbert, 
 
 Hickling v. JBoyer, . 
 
 Hickman v. Cooke, . 
 
 v. Grimes, . 
 
 v. McCurdy, 
 
 *v. Perrin, . 
 
 v. Stout, . 
 
 Hickox v. Lowe, . 
 
 Hidden v. Jordan, . 
 
 Hiester v. Green, . 
 
 v. Madeira, . 
 
 Higdon v. Heard, . 
 
 Higgins v. Joice, . 
 
 v. Woodward, 
 
 High and Wife v. Batte, 
 
 v. Worley, . . 
 Hightower v. Mustain, 
 v. Smith, . . 
 Higinbotham v. Burnet, 
 Hilar v. Darly's Admr's., 
 Hill v. Beach, . . 
 v. Bowyer, .. 
 v. Commissioners, 
 v. Epley, . . 
 v. Grigsby, . . 
 v. Lackey, . . 
 v. McLaurin, . 
 v. Ressegieu, . 
 v. Rockingham Bank, 
 v. United States, . 
 Hilleary v. Hurdle, . 
 Hillyard v. Miller, . 
 Hilton v. Duncan, . 
 Hinchman v. Richie, . 
 
 v. Patterson, 
 
 Hindson v. Wetherill, 
 
 Hine v. Dodd, . . 
 
 v. Handy, . . 
 
 v. Hine, . . 
 
 . 306 
 
 .. 84 
 . .157 
 . . 114 
 . .275 
 . .141 
 . 84, 88, 90 
 . .240 
 .. 84 
 . .128 
 . .233 
 . . 208 
 . .192 
 . . 51 
 . . 251 
 . . 286 
 . .233 
 . . 151 
 . . 150 
 . 241, 268 
 . .198 
 . . 287 
 . . 261 
 . . 310 
 .. 78 
 . . 268 
 . . 153 
 220, 222, 303 
 . .111 
 . . 118 
 . . 128 
 . .111 
 .. 3 
 . . 179 
 . 196, 356 
 . .129 
 . .137 
 . . 314 
 . .392 
 . . 335 
 . . 254 
 . .443 
 .. 399 
 . . 320 
 . .150 
 . .128 
 ... 167 
 . . 183 
 .. 81 
 77. 80 
 . 194 
 . . 309 
 . .43 
 .. 86 
 . 290, 292 
 . . 210 
 61, 184, 248 
 . .153 
 . .194 
 . .105
 
 TABLE OF AMERICAN CASES. 
 
 Ivii 
 
 Hine v. Stephens, 
 Hines v. Keller, . 
 
 v. Spruill, 
 Hinkle v. Currin, 
 Hinsdil v. Murray, 
 Hinsou v. Pickett, 
 
 v. Partee, 
 Hinton v. Cole, . 
 Hitch v. Davis, . 
 
 v. Fenby, . 
 
 . 196 
 . 269 
 254, 255 
 19 
 
 . 269 
 . 399 
 . Ill 
 . 309 
 . 309 
 397, 417, 419 
 
 Hitchcock v. Harrington, . . 114 
 v. St. John, . . 241 
 v. Skinner, . 230, 233 
 Hite v. Hite, .... 103 
 Hittv. Holiday, . . . .113 
 v. Ormsbee, . . . 363 
 Hobart v. Frisbie, . . . 303 
 Hobbs v. Parker, . . . 177 
 Hobday v. Peters, . . .176 
 Hockenbury v. Carlisle, . . 184 
 Hocker v. Gentry, . . . 136 
 Hoday v. Hound, . . . 167 
 Hodges i'. Mullikin, . . . 364 
 v. N. E. Screw Co., . 397 
 Hodgman v. Smith, . . . 239 
 Hoen v. Simmons, ... 82 
 Hoes v. Van Hoesen, . . 261, 263 
 Hoff's Appeal, . . . .261 
 Hoffman v. Livingstone, . 196, 356 
 v. Postil, . . . 308 
 v. Savage, . . .231 
 f. Smith, . . . 376 
 Hogan v. Jacques, ... 33 
 Hoge v. Hoge, . . . 188, 248 
 Hoitt v. Webb, .... 61 
 Holden v. Mc.Makin, . . 243, 246 
 v. Pike, . . . .270 
 Holderstaffe v. Saunders, . . 194 
 Holdin v. Durbin, ... 39 
 Hole v. Barlow, . . . .211 
 Holgate v. Palmer, . . . 364 
 Holliday v. Riordon, . . . 336 
 Hollister v. Barkley, . 196, 356, 379 
 Holloway v. Holloway, . .217 
 v. Moore, ... 20 
 Hollsclaw v. Johnson, . . 335 
 Holmes v. George, . . . 196 
 v. Hawes, . . . 243 
 v. Holmes, . 20, 21, 230 
 
 i'. Logan, . . . 286 
 Holridge v. Gillespie, . .113 
 Holroyd r. Marshall, . . 54, 110 
 Holsman v. The Boiling Spring 
 
 Co., .... 199, 211 
 Holt v. Bank of Augusta, . . 356 
 v. Robertson, . . . 268 
 Holton v. Meighcn, . . .111 
 Holyoke v. Mayo, . . . 240 
 Homer v. Hanks, . . . 402 
 Honeywood v. Forster, . . 96 
 
 Honore v. Colmesnil, . 
 Hood v. Bowman, 
 
 v. Fahnestock, . 
 
 v. Inman, . 
 
 v. James, . 
 
 244 
 86 
 157 
 306 
 121 
 
 v. N. Y. & N. H. Railroad 
 
 Co., . . . .198 
 
 v. Oglander, ... 31 
 
 Hook v. Craighead, . . . 168 
 
 v. Stone, . . . .241 
 
 Hooker v. Pynchon, ... 77 
 
 Hooly v. Hatton, . . 104, 105 
 
 Hooper v. Gumm, ... 6 
 
 v. Reyster, . . . 319 
 
 Hoover v. Epler, . . . 270 
 
 v. Hoover, . 254, 263, 275 
 
 v. Reilly, . . .168 
 
 Hope v. .Brinckerhoff, . . 413 
 
 v. Carnegie, . . . 198 
 
 v. Fox, . . . .313 
 
 Hopgoodv. Parkin, ... 61 
 
 Hopkins v. Forsyth, . . . 268 
 
 v. Garrard, . . . 153 
 
 v. Hopkins, . . . 317 
 
 v. Mazyck, . . .168 
 
 v. McEldery, . .351 
 
 v. McLaren, . .157 
 
 Hopkinson v. Lord Burghley, . 15 
 
 v. Rolt, . . .110 
 
 Hopkirk v. Paige, . . . 317 
 
 Hopper v. Hopper, . . 77-87 
 
 Matter of, . . 297 
 
 Hopping v. Burnham, . . 153 
 
 Hopwood v. Hopwood, . . 105 
 
 Horn v. Keteltas, . . .111 
 
 v. Thomas, . . . 356 
 
 Home v. Lj'the, ... 40 
 
 Horsburg v. Baker, . . . 404 
 
 Horton v. The Church, . . 203 
 
 Horton's Appeal, . . 242, 363 
 
 Hosack v. Rogers, . . . 350 
 
 Hosford v. Merwin, . . . 230 
 
 Hotchkiss v. Fortson, . . 183 
 
 Hotten v. Arthur, . . . 216 
 
 Hough v. Richardson, . 157, 177 
 
 Houghton, Ex parte, . . 33 
 
 v. Houghton, . . 184 
 
 House v. Falconer, . . . 232 
 
 v. Thompson, . . 272 
 
 Houseal & Smith's Appeal, . 243 
 
 Houston v. The Branch Bank, . 268 
 
 Hovey v. Halcomb, . . .111 
 
 How V. Mortell, . . . 194 
 
 Howard v. Edgell, ... 79 
 
 v. Henriques, . . 217 
 
 v. Lee, . . . .211 
 
 Howe v. Harvey, . . . 302 
 
 v. Hunt, ... 77, 84 
 
 v. Rogers, ... 86 
 
 v. Russell, . . .386
 
 Iviii 
 
 TABLE OF AMERICAN CASES. 
 
 Howell v. Ashmore, . 
 v. Baker, 
 v. Harvey, 
 v. Ransom, 
 v. Sibring, 
 
 Howells v. Jenkins, . 
 Howey v. Goings, 
 Hoxey v. Carey, 
 Hoxie v. Carr, 
 Hoy v. Bramhall, 
 
 v. Hansborough, 
 v. McMurry, 
 Hoye v. Brewer, 
 Hoyt v, Hammekin, . 
 v. Hilton, 
 v. MacKenzie, . 
 Hozen v. Darling, 
 Hubbard v. Goodwin, 
 Hubble v. Perrin, 
 Hudson v. Barrett, 
 v. Cline, 
 v. Hudson, . 
 v. Isbell, 
 
 Huffman v. Hummer, 
 Hu^er v. Huger, 
 Huggins v. Hall, 
 Hughes v. Blake, 
 v. Cook, 
 v. Edwards, . 
 v. Hughes, 
 v. U. S., 
 
 Hulbert v. McKay, 
 Hull v. Hull, 
 
 v. Sturdivant, . 
 Hulme v. Tennant, 
 Hultz v. Wright, 
 Humbert. Rector of Trin 
 Hume v. Pocock, 
 Humes v. Shelly, 
 Hummer v. Schott, . 
 Humphrey v. Foster, 
 
 v. Phinney, 
 
 Humphreys v. Leggett, 
 Hundley v. Mount, 
 Hunley v. Hunley, 
 Hunn v. Morton, 
 Hunt v. Bass, 
 
 v. Elmes, . 
 v. Freeman, 
 v. Godkin, 
 v. Hamilton, 
 v. Hunt, . 
 v. Mansfield, 
 v. Moore, . 
 v. Penrice, 
 v. Rousmanier, 
 v. Smith, . 
 v. Townsend, . 
 v. White, 
 Hunter v. Bales, 
 
 . 
 
 4 
 
 Hunter v. Clark, 
 
 2G8 
 
 
 . 248 
 
 v. Hubbard, . 
 
 G2 
 
 
 . 243 
 
 Hunter's Ex'rs. v. Spotswood, . 
 
 222 
 
 . 
 
 . 184 
 
 Hunton v. Platt, 
 
 310 
 
 . 
 
 . 309 
 
 Hurd v. Case, .... 
 
 403 
 
 . 
 
 . 96 
 
 Hurlburd v. Freelove, 
 
 397 
 
 . 
 
 . 230 
 
 Hurlbut v. Phelps, 
 
 106 
 
 * 
 
 . 346 
 
 Hurter v. Robbins, 
 
 329 
 
 151, 
 
 243, 246 
 
 Hurst v. Fisher, 
 
 136 
 
 
 153,270 
 
 v. Sheldon, 
 
 203 
 
 
 . 77 
 
 Hussey v. Dole, 
 
 312 
 
 . 
 
 . 321 
 
 Huston v. Hamilton, . 
 
 32 
 
 
 261, 263 
 
 v. McCarty's Heirs, 
 
 312 
 
 
 . 364 
 
 Hutcheson v. McNutt, . 
 
 82 
 
 
 . 280 
 
 Hutchins v. Hope, . 196, 227, 
 
 356 
 
 
 . 214 
 
 Hutchinson v. Browne, . 177, 
 
 183 
 
 
 . 258 
 
 v. Hutchinson, 
 
 33 
 
 . 
 
 42 
 
 v. Shepperton, 
 
 193 
 
 . 
 
 . 243 
 
 Hutton v. Duey, 
 
 45 
 
 
 . 241 
 
 Hyer v. Little, .... 
 
 363 
 
 
 . 375 
 
 Hyman v. Devereux, 
 
 110 
 
 
 . 61 
 
 v. Kelly, 
 
 121 
 
 . 
 
 . Ill 
 
 Hynes v. Stewart, 
 
 240 
 
 . 
 
 . 84 
 
 
 
 
 61, 285 
 
 Iddings v. Bruen, 
 
 61 
 
 . 
 
 . 315 
 
 Iglehart v. Crane, . . 153, 
 
 270 
 
 
 21 
 
 Imlay v. Huntingdon, . 40, 42 
 
 ,46 
 
 
 . 309 
 
 Inbusch v. Farwell, . 
 
 243 
 
 114, 
 
 117, 153 
 
 Ingersoll v. Kirby, 
 
 310 
 
 
 . 287 
 
 Inglessi v. Spartali, . 
 
 10 
 
 
 151, 188 
 
 Inglis v. Trustees of Sailor's Snug 
 
 
 . 
 
 . -385 
 
 Harbor, .... 
 
 65 
 
 
 . 263 
 
 Ingraham v. Baldwin, 
 
 182 
 
 
 . 77 
 
 v. Regan, . 
 
 303 
 
 . 
 
 43, 45 
 
 Ingram v. Kirkpatrick, 
 
 31 
 
 
 . 106 
 
 v. Phillips, . 
 
 153 
 
 . Church, 303 
 
 Innes v. Evans, .... 
 
 337 
 
 . 
 
 . 84 
 
 v. Jackson, 
 
 173 
 
 . 
 
 . 121 
 
 v. Lansing, 
 
 243 
 
 . 
 
 . 128 
 
 v. Sayer, .... 
 
 97 
 
 . 
 
 . 375 
 
 Ins. Co. v. Union Canal Co., 
 
 77 
 
 . 
 
 . 233 
 
 Irick v. Black, 
 
 268 
 
 
 . 198 
 
 Irvin v. Davidson, 
 
 210 
 
 . 
 
 . 153 
 
 v. Smith, .... 
 
 153 
 
 . 
 
 . 314 
 
 Irvine v. Forbes, 
 
 239 
 
 . 
 
 . 390 
 
 Irving v. Hughes, 
 
 198 
 
 . 
 
 55, 61 
 
 Irwin v. Harris, . . 59 
 
 ,61 
 
 . 
 
 15 
 
 v Ivers 
 
 33 
 
 
 85 
 
 v. Planters' Bank, . 
 
 168 
 
 
 240, 344 
 
 . v. Tabb, .... 
 
 95 
 
 
 . 248 
 
 Isbam v. Bennington Iron Co., . 
 
 153 
 
 
 . 183 
 
 Ives v. Armstrong, 
 
 88 
 
 . 
 
 . 270 
 
 v. Harris, .... 
 
 46 
 
 . 
 
 177, 183 
 
 Izard v. Bodine, 
 
 386 
 
 
 . 338 
 
 
 
 . 
 
 . 168 
 
 Jackman v. Ringland, 
 
 33 
 
 . 
 
 . 399 
 
 Jacks v. Nichols, 
 
 363 
 
 . 
 
 . 272 
 
 Jackson v. Cutright, . 86, 346. 
 
 347 
 
 . 
 
 . 172 
 
 v. Edwards, . 
 
 232 
 
 . 
 
 . 81 
 
 v. French, . 
 
 6
 
 TABLE OF AMERICAN CASES. 
 
 lix 
 
 Jackson v. Forest, . . .310 
 
 v. Grant, . . . 403 
 
 v. Inabinit, ... 6 
 
 v. Jackson, . . 285, 286 
 
 v. Leek, . . .153 
 
 v. Ligon, ... 88 
 
 v. Lodge, . . .114 
 
 v. Matsdorf, . . 83. 101 
 
 v. Moore, ... 28 
 
 v. Payne, . . .172 
 
 r. Phillips, ... 67 
 
 v. Sharp, . . . 153 
 
 Jackson's Assignees v. Outright, 304 
 
 Jacobs v. Locke, ... 84 
 
 ' . Morange, . . . 168 
 
 v. Richards, . . . 183 
 
 Jacobson r. Blackhurst, . . 205 
 
 James r. Bostwick, . . . 240 
 
 v. Brown, . . . 270 
 
 v. Dixon, . . .210 
 
 v. Gibbs, ... 48 
 
 v. Holmes, . . .184 
 
 v. Hubbard, . . 270, 272 
 
 v. McKarnon, . 303, 305 
 
 v. State Bank, . . 85 
 
 James River v. Littlejohn, . 3 1C 
 
 Jamison v. Brady, . .45 
 
 v. Glascock, . . 61 
 
 Jaques r. Methodist Church, . 46 
 
 Jarvis v. Brooks, . . . 243 
 
 v. Dutcher, . . .123 
 
 v. Palmer, . 334, 335, 339 
 
 Jauretche v. Proctor, . . 31 
 
 Jefferyes v. Purday, . . .215 
 
 Jencks v. Alexander, . . 33, 101 
 
 Jenison v. Hapgood, ... 61 
 
 Jenkins v. Bodley, . . . 162 
 
 v. Eldredge, 61, 248, 305, 379, 
 
 397, 399 
 
 v. Jenkins, . . .233 
 
 v. Pye. . . . 184, 186 
 
 v. Walter, . . 57, 60 
 
 Jenkyns v. Bushby, . . . 6, 7 
 
 Jennings v. Broughton, . . 177 
 
 v. Patterson, . . 258 
 
 v. Springs, . . . 346 
 
 Jervis v. Smith, .... 272 
 
 Jerome v. Jerome, ... 23 
 
 v. Ross, .... 210 
 
 Jewett v. Davis, . . . . 176 
 
 Ex parte, . . . 285 
 
 Jobe r. O'Brien, . . . . 270 
 
 John v. Jones, .... 269 
 
 Johns v. Reardon, . . 173, 313 
 
 v. Erb, . . . 376,377 
 
 Johnson v. Bennett, . . . 136 
 
 v. Brown, . 114,310,315 
 
 v. Candage, . . .113 
 
 v. Clendenin, . . 360 
 
 v. Gushing, ... 99 
 
 Johnson v. Dougherty, . 33 
 
 v. Fesemeyer, . . 184 
 
 v. Harman, . . . 113 
 
 v. Hubbell, . . 77, 86 
 
 v. Johnson, 208, 251, 309 
 
 v. McGruder, . . 86 
 
 v. Noble, . . .232 
 
 v. Rankin, . . . 317 
 
 v. Richardson, . .110 
 
 v. Ronald, ... 28 
 
 v. Vail,. . . .313 
 
 v. Walker, . . .191 
 
 v. Williams, . . .270 
 
 Exrs. v. Clark, . .111 
 
 Exr's. v. Ketchum, . 227 
 
 Johnston v. Gray, . . Ill, 112 
 
 v. Glancy, ... 86 
 
 v. Rowlands, . . 31 
 
 v. Van Dyke, . . 233 
 
 Johnstone v. Earl of Harrowby, 105 
 
 Jpice v. Taylor, . . . .177 
 
 Jones v. Beach, . . . 172, 173 
 
 v. Bos. Mill Corp., . . 192 
 
 v. Bradshaw, . . .19 
 
 v. Bridge, . . .182 
 
 v. Bullock, . . 220, 364 
 
 v. Cowles, . . . 303 
 
 v. Creveling's Exr's., . 104 
 
 v. Dougherty, . . . 355 
 
 v. Evans, .... 182 
 
 v. Jones, . . 93, 95, 244 
 
 v. Kearney, . . .176 
 
 v. Lynds, .... 313 
 
 v. McKee, . . .248 
 
 v. Maffet, .... 37 
 
 v. Mason, . . 106, 363, 392 
 
 v. My rick, . . .270 
 
 v. Noble, . . . .82 
 
 v. Plummer, . . . 136 
 
 v. Smith, . . . . 402 
 
 v. Stockett, . . 38, 287 
 
 v. Whitehead, . . . 208 
 
 Jopling v. Dooley, . . . 179 
 
 Jordan v. Money, . . . 363 
 
 v. Do a ton, . . .77 
 
 Jordon v. Stevens, . . 177, 190 
 
 Josey v. Rogers, . 17, 402, 403 
 
 Joslyn v. Wyman, . . .110 
 
 Joy v. Wirtz, .... 323 
 
 Joyce v. De Moleyns, . . . 162 
 
 Judah v. Brandon, . . . 258 
 
 Judd v. Seaver, . . .20, 363 
 
 Judge v. Wilkins, . . . 174 
 
 Judson v. Gibbons, . 37 
 
 Julio v. Ingalls, . . . .239 
 
 Justices of Pike Co. v. Griffin 
 
 and West Point Plank Co., . 210 
 Juvenal v. Jackson, . . . 151 
 Juzan v. Toulmin, . . 174, 177
 
 Ix 
 
 TABLE OF AMERICAN CASES. 
 
 Kane v. Gott, . . . .136 
 
 Matter of,. . . 287, 288 
 
 Kauffelt v. Bowes, . . .128 
 
 Kaufman v. Crawford, . . 285 
 
 Kavanaugh v. Thompson, . . 96 
 
 Kearney v. Harrell, . . . 376 
 
 v. Macomb, . . ^93, 111 
 
 Keeler v. Eastman, . . 208 
 
 Keim v. Taylor, .... 364 
 
 Keinck v. Price, . . . Ill 
 
 Keisselbrock v. Livingstone, 85, 106 
 
 Keith v. Homer, . . .129 
 
 v. Trapier, . . 233, 235 
 
 Kekewich v. Manning, . 53, 55, 80 
 
 Keller v. Fisher, . ... 88 
 
 Kelley v. Payne, . . . 309 
 
 Kellogg v. Smith, . . .151 
 
 Kellum v. Smith, . . 33,111 
 
 Kelly v. Greenleaf, . . 1 221 
 
 v. Jackson, ... 6 
 
 v. Morris, . . . .216 
 
 v. Paine, .... 309 
 
 Kelsey v. Western, . . 261, 263 
 
 Kemble v. Kean, x . . .207 
 
 Kemp t>. Carnley, . . . 241 
 
 v. Mitchell, . . . 399 
 
 Kendall v. Honey, . . .235 
 
 v. Man, .... 33 
 
 v. New Eng. Carpet Co. 61 
 
 v. New England Co., . 272 
 
 Kennard v. George, . . . 168 
 
 KennebecR. R.W.Portland R.R., 310 
 
 Kennedy v. Davis, . . .317 
 
 In re, . . . . 283 
 
 Johnson, . . . 297 
 
 v. Kennedy, 176, 202, 241, 
 
 '243, 303, 310, 316 
 
 v. Nedrow, ... 94 
 
 v. Ware, ... 78 
 
 Kenny v. Udal, .... 48 
 
 Kent v. Jackson, . . . 320 
 
 v. Lasley, . . . .111 
 
 . v. Plummer, . . . 153 
 
 Kenton v. Vandergrift, . .111 
 
 Kern v. Hazlerigg, . . . 129 
 
 Kerney v. Kerney, . . . 168 
 
 Kerns v. Chambers, . . . 269 
 
 v. Swope, . . 151, 153 
 
 Kerr v. Day, .... 141 
 
 v. Gilmore, . . .111 
 
 v. Potter, . . . .239 
 
 v. Purdy, .... 82 
 
 v. Steamboat Co., . . 221 
 
 Ketchum v. Stout, ... 84 
 
 Kettletas v. Gardner, . < . 283 
 
 Key v. Griffin, ... 97 
 
 v. Lambert, .... 312 
 
 Keys v. Wood, '. . . .110 
 
 Keyzey (Case of), . . .261 
 
 Kidd v. Cheyne, . . .418 
 
 Kiddall v. Trimble, . . .234 
 
 Kidder v. Kidder, . . . 106 
 
 Kidney v. Coussmaker, . . 95 
 
 Kilpatrick v. Kilpatrick, . . 128 
 
 Kimberly v. Fox, . . . 202 
 
 v. Jennings, . . 207 
 
 v. Sells, . . . 335 
 
 Kimmel v. McRight, . . 33, 101 
 
 Kincheloe v. Kincheloe, . . 23 
 
 King v. Baldwin, . . .268 
 
 v. Bardeau, ... 90 
 
 v. Bill, . . . .157 
 
 v. Clark, . . . .389 
 
 v. Cloud, . . . .364 
 
 v. Donnelly, ... 37 
 
 v. Doolittle, . . .168 
 
 v. Hamilton, . . 84, 85 
 
 v. Mitchell, ... 32 
 
 v. Morford, . . .77 
 
 v. Mullin, .... 59 
 
 v. Phillips, ... 38 
 
 v. Ray, .... 8 
 
 v. Ruckman, . . 88, 90 
 
 v. Savery, .... 184 
 
 v. Talbot, .... 57 
 
 v. Trice, . . / . . 303 
 
 v. Woodhull, ... 65 
 
 of Sicilies v. Willcox, . 23 
 
 of Spain v. Hallett, . . 2 
 
 Kingman v. Sparrow, . . . 233 
 
 Kinlock v. Hamlin, . . . 240 
 
 Kinnaman v. Henry, . . . 344 
 
 Kinsey v. Woodward, . . 94 
 
 Kinsleri;. Clarke, . . 208,356 
 
 Kinter v. Jenks, ... 31 
 
 Kip v. Bank of New York, . . 60 
 
 Kirby v. Dalton, . . . 233 
 
 v. Harrison, . . . 174 
 
 v. Schoonmakef, . . 243 
 
 Kirk v. Hodgson, . . . 364 
 
 Kirknian v. Bank of America, . 268 
 
 v. Vanlier, . . .222 
 
 Kirkpatrick t> . Atkinson, . . 377 
 
 v. McDonald, . . 33 
 
 v. Rogers, . . 263 
 
 v. White, . . 339 
 
 Kirksey v. Fike, . . .129 
 
 v. Means, . . . 309 
 
 Kisor v. Stancifer, . . . 334 
 
 Kitchen v. Herring, ... 83 
 
 Kittera's Estate, . . . 257 
 
 Kittle v. Van Dyck, . . .233 
 
 Kittredge v. Claremont Bank, . 8 
 
 v. Emerson, . . 198 
 
 Klines' Appeal, ... 33 
 
 Estate, . . .180 
 
 Knicherbacker v. Harris, . . 363 
 
 Knight v. Boughton, 29 
 
 v. Bunn, . . .168 
 
 v. Knight, . . 263, 274
 
 TABLE OF AMERICAN CASES. 
 
 Ixi 
 
 Knight v. Majoribanks, . . 61 
 Knoll v. Harvey, ... 86 
 Knoff r. Thompson, . 33, 101, 150 
 Knowles r. Lawton, . . . 272 
 v. Rablin, . . .113 
 Knowlton r. Walker, . . . Ill 
 Knox v. Campbell, . . . 368 
 r. Smith, . . . .203 
 Knuckolls r. Lea, . . . 177 
 Kopler v. Los Angeles, . . 196 
 Kortright v. Cady, . . .110 
 Kramer v. Arthurs, . . 162, 246 
 & Rahm's Appeal, . 268 
 Krider v. Lafferty, . . 151,153 
 Krupp v. Scholl, . . . 180 
 Kuhn r. Newman, ... 44 
 Kunkell r. Markell, . . .310 
 Kunkle r. Wolfersberger. . . Ill 
 Kuypers r. Ref. Dutch Church, . 335 
 Kyle r. Roberts, . . .240 
 
 Kyles v. Tail, . . . .128 
 Kyner v. Kyner, . . . 269, 270 
 
 Ladd v. Harvey, . . . .352 
 
 Ladue v. The R. R. Co., . .110 
 
 Lafarge Insurance Co. v. Bell, . 272 
 
 Lafone v. Falkland Islands Co., 6 
 
 Laidlaw v. Organ, . . .179 
 
 Laight v. Morgan. . . . 335 
 
 Lainhart r. Reilly, . . .322 
 
 Laird r. Birkenhead Railway Co., 77 
 
 Lake v. Dowd, .... 123 
 
 Lally v. Holland, . . .153 
 
 L'Amareaux v. Crosby . . 290 
 
 Lambert v. Lambert. . . . 402 
 
 Lamborn v. The Covington Co., 219 
 
 Lanahan v. Lathrobe, . . 95 
 
 Lancaster Co. Bank v. Albright, 179 
 
 r. Uolan, ... 46 
 
 Re, . . . . 301 
 
 Land r. Cowan, .... 309 
 
 Landes r. Brandt, . . . 153 
 
 Lane v. Dickerson, . . .111 
 
 v. Latimer, . . .174 
 
 v. Stebbins, ... 18 
 
 v. Stevens, . . . 339 
 
 Lang v. Brown, . . . 386, 387 
 
 < . Waring, . . . 246 
 
 Langdon v. Astors Executors, . 104 
 
 v. Goddard, ... 8 
 
 v.Paul, . . .114 
 
 v. Roune's Adm'rs., . 228 
 
 Langstaff r. Rock. . . . 268 
 
 Lanier r. Hill, .... 177 
 
 r. Wynian, . . .171 
 
 Lanning v. Smith, . . . 363 
 
 Lansing v. Eddy. . . . 198 
 
 v. Russel, . . . 183 
 
 Lanum v. Steel, . . . 345 
 
 Lapreese r. Falls, . . . 376 
 
 Large v. Van Doren, . .110 
 
 Larkin v. Mann, . . . 231 
 
 Larkins v. Biddle, . 168, 310, 346 
 v. Rhodes, ... 33 
 Larrabee v. Larrabee, . 186, 188 
 Larrowe v. Beam, . . . 162 
 Laselle v. Barnett, . . . 151 
 Lathrop v. Gilbert, ... 33 
 Lathrop's Appeal, . . . 269 
 Latimer v. Hanson, ... 37 
 v. Rogers, . . . 232 
 Latting v. Latting, . . . 309 
 Laughlin v. Ferguson, . . 270 
 v. Lorenz Adm'r., . 241 
 Lavender v. Lee, . . . 168 
 Laverty v. Moore, . . .81 
 Lavette v. Sage, . . .183 
 Law v. Ford, .... 243 
 Lawrence v. Beaubin, . . 168 
 v. Hammitt, . . 238 
 v. Lawrence, . 167, 363 
 Lawrens v. Lucas, ... 84 
 Lawson v. Morton, . . . 233 
 Lawton v. Campion, . . . 189 
 Leach v. Beattie, . . . 232 
 Leacraft v. Dempsey, . . 339 
 Leacroft v. Maynard, . .105 
 
 Leadenham v. Nicholson, . 136 
 
 Leaf v. Coles, . . . 243, 292 
 Lear v. Chouteau, ... 78 
 Lear's Ex'rs. v. Edson, . 168,363 
 Leathart v. Thorne, . . . 320 
 Leather Cloth Co. v. The Ameri- 
 can Leather Cloth Co., . . 217 
 Leavitt v. Steenbergen, . . 364 
 v. Wooster, . . . 263 
 Leaycraft v. Heddon, . . 46 
 Lebby v. Stanley, . . .128 
 Lerkensdorfer v. Delphy, . . 168 
 Ledyard v. Chapin, . . .110 
 v. Johnson, . . 250 
 
 Lee v. Baird, . . . .197 
 v. Beatty, .... 376 
 v. Evans, .... Ill 
 v. Howe, .... 91 
 v. Kirkpatrick, . . .150 
 v. Lee, .... 416 
 v. Pindle, . . . .392 
 v. Randolph, ... 37 
 Leeds v. Marine Ins. Co. of Alex- 
 andria, ..... 20 
 Lees' Adm'rs. v. Reed, . . 227 
 Lefevre v. Laraway, ... 61 
 Le Fort v. Delafield, . . .335 
 Legare v. Ashe, . . . 248 
 
 Leggett v. Dubois, . . 33, 42 
 v. Perkins, ... 46 
 v. Postley, . . 18, 19 
 Leiby v. Wolfej . . .153 
 
 Leigh v. Clark, . . 196
 
 Ixii 
 
 TABLE OF AMERICAN CASES. 
 
 Leigh v. Crump, . . 77, 84 
 v. Savidge, . . .272 
 Leight v. Leight, ... 96 
 Leiper's Exr's. v. Irvine, . . 142 
 Leisenring v. Black, . . . 184 
 Lemaster v. Burkhart, . . 304 
 Le Neve v. Le Neve, 151, 153, '157, 158 
 Lennig's Estate, . . . 261 
 
 Lenox v. Notrobe, 51, 61, 233, 281, 352 
 
 363 
 
 Le Roy v. Servis, . . . 334 
 
 v. Veeder, . . . 335 
 
 Lesley v. Johnson, . . . 150 
 
 v. Rosson, . . . 222 
 
 Lessig v. Langton, . . . 356 
 
 Letcher v. Letcher, . . . .33 
 
 v. Shrceder, . 54, 312 
 
 Lever v. Lever, .... 221 
 
 Levert v. Redwood, . . 379 
 
 Leverton v. Waters, . . . 230 
 
 Levy v. Levy, .... 65 
 
 Lewellen v. Cubbold, . .180 
 
 Lewis v. Bacon, . . . 255 
 
 v. Baird, . . .153 
 
 v. Darling, . . . 263 
 
 v. Hilman, ... 61 
 
 v. Leak, .... 356 
 
 v. Lewis, . . 92, 97 
 
 v. McLemore, . . .177 
 
 v. Matthews, ... 45 
 
 v. Mew, .... 157 
 
 v. Moorman, . . . 233 
 
 v. Palmer, . . . 269 
 
 v. Robards, . . .111 
 
 Liddard v. Liddard, . . .31 
 
 Liddell v. Norton, ... 12 
 
 Lightner v. Mooney, . . . 153 
 
 Ligon's Adm'r. v. Rogers, . 168 
 
 Lilford v. Powys, . . . 275 
 
 Lillard v. Turner, ... 46 
 
 Lilly v. Kroesen, . . . 227 
 
 Lincoln v. Rutland, &c., R. R. Co., 203 
 
 Lindsay v. Etheridge, . 196, 356 
 
 v. Harrison, . . 44 
 
 v. Pleasants, . 33, 138 
 
 v. Rankin, . . . 151 
 
 Lindsey v. Bates, . . . 129 
 
 v. James, ... 20 
 
 . Linford v. Linford, . . . 243 
 
 Lingan v. Henderson, 23, 303, 304,309 
 
 364 
 
 Lining v. Geddes, v . . . 210 
 
 Linker v. Smith, . . . 180 
 
 Linkhouse v. Cooper, . . 84 
 
 Lippincott v. Stokes, . . 100 
 
 Lister v. Hodgson, . . . 168 
 
 Litchfield v. Ready, . . .114 
 
 Little v. Co<Jper, ... 20 
 
 - v. Marsh, . . 196, 356 
 
 v. Price, . . . . 198 
 
 Littlefield v. Smith, ... 53 
 
 v. Tinsley, . . 84 
 
 Littlejohn v. Gordon, . . 128 
 
 Livermore v. Aldrich, . . 33 
 
 Livingston v. Clarkson, . . 231 
 
 v. Harris, . . 334 
 
 v. Hubbs, . . 417 
 
 In re, ... 296 
 
 v. Livingston, 101, 196, 
 
 199, 210, 263, 274, 275, 
 
 335, 356 
 
 Matter of, . . 293 
 
 v. Newkirk, . 263, 272 
 
 v. Reynolds, . . 208 
 
 v. Story, . . 126, 335 
 
 v. Tompkins, . 107, 334 
 
 Lloyd v. Attwood, . 151, 163, 165 
 
 v. Barr, .... 269 
 
 v. Brewster, . . . 309 
 
 v. Carter, ... 33 
 
 v. Galbraith, . . 270, 272 
 
 , v. Hart, 285 
 
 v. Loaring, . . .77 
 
 Lobdell v. Hayes, . . . 233 
 
 v. Lobdell, ... 77 
 
 Lockard v. Lockard, 198, 331, 344 
 
 Lock v. Fulford, . . . 270 
 
 Locke v. Palmer, . . 111,123 
 
 Lockerson v. Stilwell, . . Ill 
 
 Lockwood v. Fenton, . . 282 
 
 v. Lockwood, . .121 
 
 v. Stockholm, . . 263 
 
 v. Thome, . . 226 
 
 Lodwick v. Johnson, . .272 
 
 Logan v. Bond, . . 244, 303 
 
 v. McGinnis, ... 77 
 
 v. Simmons, . . . 180 
 
 Long v. Long, . . . .183 
 
 v. Majestic, . . 222, 315 
 
 v. Mulford, . . .232 
 
 v. Norcom, . . . 286 
 
 v. Storie, .... 319 
 
 Longworth v. Taylor, . . 84 
 
 Loomer v. Wheelright, . 173, 174 
 
 Loomis v. Brown, . . .196 
 
 Loomis's Estate, . . . 263 
 
 Lord v. Lowry, .... 28 
 
 v. Morris, . . . .110 
 
 v. Staples, . . . 270 
 
 Lorillard v. Coster, . . 43, 136 
 
 London v. Warfield, . . . 208 
 
 Lounsbury v. Purdy, . . 33 
 
 Love v. Cobb, .... 77 
 
 Loveday, Ex parte, . . . 293" 
 
 Lovegrove v. Cooper, . 252, 256 
 
 Lovejoy v. Irelan, . . . 312 
 
 Lovell o. Farrington, . . 304 
 
 v. Minot, ... 56 
 
 Lovett v. Longmire, . . . 331 
 
 v. Steam, &c., Ass., . 363
 
 TABLE OF AMERICAN CASES. 
 
 Ixiii 
 
 Low v. Holmes, . . . 230 
 
 Lowe v. Lowry, . . . 199 
 
 v. Traynor, . . .377 
 
 Lowndes v. Chisholm, . 118, 269 
 
 Lowralle v. Menard, . . . 233 
 
 Lowry v. Cox, .... 191 
 
 v. Farmers' Bank, . . 251 
 
 v. Muldrow, ... 84 
 
 v. Spear, . . .186 
 
 Lowther v. Lowther, . . 77 
 
 Loyd v. Read, . . . .101 
 
 Lozier's Ex'rs. v. Van Saun's 
 
 Adm'rs., .... 203 
 
 Lucas v. Atwood, . . . 243 
 
 v. Bank of Darien, 19, 198, 312, 
 
 363 
 
 v. Hickman, . . . 360 
 
 v. Lockhart, . . . 31 
 
 Luckett v. White, . . . 310 
 
 v. Williamson, . 84, 86 
 
 Ludlow r. Simond, . . .221 
 
 Lumley v. Wagner, . . 81, 207 
 
 Lunsford v. Bostion, . . . 379 
 
 Lupeer Co. v. Hart, . . .199 
 
 Lupton v. Janney, . . . 227 
 
 v. Lupton, . 103, 263, 364 
 
 Lushington v. Boldero, . .316 
 
 Lyday v. Douple, . . .198 
 
 Lyman v, Lyman, . . . 270 
 
 v. Ins. Co., . , .168 
 
 Lynch v. Cox, .... 33 
 
 v. Johnson, . . . 310 
 
 v. Sumrall, . . .20 
 
 Lyne v. Guardian, . . . 248 
 
 Lynn v. Boiling, . . . 363 
 
 Lyon v. Baker, . . .61 
 
 v. McLaughlin, . . 199 
 
 v. Richmond, . . .168 
 
 v. Saunders, . . . 168 
 
 v. Tallmage, . . . 346 
 
 Lyons v. Miller, . 20, 21, 363 
 
 Lyrely v. Wheeler, . . 196, 356 
 
 Lytle v. Pope, . . . 157, 269 
 
 McArtee v. Engart, . . . 174 
 
 Mr A u ley v. Wilson, . . .69 
 
 McBain v. McBain, . . . 230 
 
 McBrayer v. Hardin, ( . . 208 
 
 McCabe v. Bellows, . . . 309 
 
 McCalmount c. Rankin, . 176, 303 
 
 McCammon v. Petit, . . .33 
 
 McCampbell v. McCampbell, 263, 275 
 McCants v. Bee, ... 61 
 
 McCarty v. Pruet, . . .128 
 
 McCartney v. Garnhart, . .217 
 
 McCaskle v. Amariue, . . 153 
 
 McCaughall v. Ryan, . . 65 
 
 McCauly v. McFarlane, . . 244 
 
 McClean, Matter of, . . . 292 
 
 McClellan v. Darrah, . . 84 
 
 McClintic v. Manus, . . . 230 
 
 McClung v. Beirne, . . . 270 
 
 McClure v. Evans, . . . 105 
 
 McClurg v. Fryer, . . . 268 
 
 McCollum v. Prewitt, . . 197 
 
 McConnel v. Holobush, . . 118 
 
 McConnell v. McConnell, . 309, 312 
 
 v. Read, . . .153 
 
 v. Scot.t, . . . 270 
 
 McCord v. Ochiltree, . . 65 
 
 McCormack v. Obannon, . . 269 
 
 McCormick v. Malin, . .183 
 
 McCorniick's Adm'r. v. Irwin, . 269 
 
 Appeal, . . 272 
 
 McCosker v. Brady, . . 309 
 
 McCoy v. Rhodes, . . .363 
 
 McCrackan v. Valentine, . . 382 
 
 McCrae v. Hollis, . . .188 
 
 McCrea v. Purmort, . . . 303 
 
 McCrocklin v. McCrocklin, . 45 
 
 McCrory v. Foster, ... 33 
 
 McCue v. Johnston, ... . 86 
 
 McCulloh v. Dashiel, . 243 
 
 McCollough v. Irvine, . . 208 
 
 v. Wilson, . . 153 
 
 v. Somerville, . 241 
 
 McCumber v. Gilman, . .121 
 
 McCunn v. Bolt, . . . 269 
 
 McDaniel v. Moorman, . . 182 
 
 McDaniell v. Bell, . . .192 
 
 McDermott v. Blois, . . . 335 
 
 McDonald v. Black, . . .268 
 
 v. McDonald, . . 308 
 
 v. McLeod, . 111,363 
 
 McDougald v. Dougherty, 346, 352, 
 
 379, 383, 386, 389 
 
 McDougall v. Dougherty, . . 399 
 
 v. Miln, . . . 389 
 
 McDowall v. Payton, . . 248 
 
 McDowell v. Bank, . . . 269 
 
 v. Bank of Wilmington, 21 
 
 v. Caldwell, . . 286 
 
 v. Graham, . . 303 
 
 v. Lawless, . . 261 
 
 McElfresh v. Schley, . . 92, 94, 95 
 
 McElhatton v. Howell, . . 48 
 
 McElwain v. Willis, . . .303 
 
 McKlwee v. Sutton, . . . 389 
 
 McFarland v. McDowell, . 196, 356 
 
 McFenan v. Taylor, ... 85 
 
 McGenee v. Jones, . . . 346 
 
 McGinnis v. McGinnis, . 92, 272 
 
 Appeal, . . .272 
 
 McGinity v. McGinity, . . Ill 
 
 McGlothlin v. Hemery, . . 309 
 
 McGonegal v. Plummer, . . 128 
 
 McGowen v. Remington, . 77, 91 
 
 McGrew v. Tombeckbee Bank, . 198 
 
 McGuire v. McGowan, . . 33 
 
 v. O'Halloran, . . 192
 
 Ixiv 
 
 TABLE OF AMERICAN CASES. 
 
 McHenry v. Cooper, . . .113 
 
 v. Hazard, . 175, 200, 205 
 
 McHurdy v. McHurdy, . . 254 
 
 Mclntire v. Hughes, ... 78 
 
 School v. Zan. Canal 
 
 Company, . . 37 
 
 Mclntosh v. Alexander, . . 309, 310 
 Mclntyre v. Trustees of Union 
 
 College, 303, 309, 344 
 
 v. Zanesville, . . 56 
 
 McJilton v. Love, . . . 198 
 
 McKas>on's App., ... 43 
 
 McKay v. Corrington, . . 88 
 
 v. Green, , . . 258 
 
 McKeen v. Field, . . . 345 
 
 McKelvey v. Truby, . . .150 
 
 McKennan v. Phillips. . 37, 45 
 
 McKibbin v. Brown, ... 77 
 
 McKim v. Handy, . . . 391 
 
 v. Mason, . . . 399 
 
 v. Odom, . . .221 
 
 v. White Hall Co., 107, 344, 
 
 347 
 
 McKinley v. Irwine, . . . 317 
 
 McKinney v. Miller, . . . 270 
 
 v. Pierce, . . . 280 
 
 McKinnie v. Rutherford, . . 317 
 
 McKinstry v. Conly, . . .111 
 
 McKissick v. Pickle, . . 67 
 
 McLane v. Johnson, . . . 147 
 
 v. Manning, . . . 176 
 
 McLard v. Liunville, . . . 363 
 
 McLaren v. Stainton, . . 198 
 
 v. Steapp, . . .221 
 
 McLaurin v. Wright, . . .111 
 
 McLellan v. Longfellow, . . 6, 7 
 
 McLemihan v. McLenahan, . 261 
 
 McLeod v. Drummond, . . 351 
 
 McLin v. McNamara, . . 222 
 
 McLoud v. Roberts, . . . 263 
 
 McLoughlin v. Sheppard . .111 
 
 McMahon v. Fawcett, . . 269 
 
 McMaken v. McMaken, . .314 
 
 McManus v. The State, . . 6 
 
 McMechan v. Griffing, . . 153 
 
 McMorris v. Crawford, . . 81 
 
 McMurtrie v. Bennett, . 77, 82, 86 
 
 McNair v. Picott, . . .110 
 
 McNamara i>. -Dwyer, . . 360 
 
 McNaughten v. Partridge, . 240 
 
 McNear v. Bailey, . . . 192 
 
 McNeil v. Magee, . . .192 
 
 v. McNeil, . . .257 
 
 v. Norsworthy, . .111 
 
 McNitt v, Logan, . . . 151 
 
 McNutt v. Strayhorn, . . 243 
 
 McPherson v. Talbott, . . 269 
 
 McQueen v. McQueen, . . 96 
 
 McRae v. McKenzie, . . . 241 
 
 McRaven v. Maguire, . . 153 
 
 McRees' Adm. v. Means, . 30, 31 
 McWhorter v. McMahon, . . 84 
 McWilliams v. Herndon, . . 346 
 MacAlpine v. Burnett, . . 128 
 MacBride v. Lindsay, . . 319 
 Macbryde v. Weeks, ... 88 
 Macclesfield, Earl of, v. Davis, . 77 
 Maccubbin v. Cromwell, 37, 58, 308 
 MacDougald v. Maddox, . . 19 
 Mack v. Wetzlar, . . .114 
 Mackinnon v. Stewart, . . 31 
 Mackreth v. Symmons, . 128, 129 
 Macleod v. Annesley, . . 318 
 Maclin v. Smith, . . . 286 
 Macon, &c., R. R. Co. v. Parker, 197 
 Mactier v. Lawrence, . 194, 259 
 
 Maddox v. Dent, . . . 350 
 t>. Rowe, ... 77 
 v. Simmons, . . 183 
 
 Madiera v. Hopkins, . . .77 
 Magdalen College v. Atty.-Gen., 69 
 Magee v. Magee, ... 33 
 Magill v. Brown, ... 65 
 Magniac v. Thompson, . . 303 
 Magoffin v. Holt, ... 88 
 Magwood v. Johnston, . . 46 
 Mahana v. Blunt, ... 86 
 Maher v. Bull, . . . .309 
 Mahone v. Central Bank, . 196, 356 
 v. Williams, . .118 
 
 Mahoning Co. Bank v. Williams, 109 
 Mahorner v. Harrison, . . 33 
 Malin v. Malin, . . . 33, 317 
 Malins v. Brown, ... 86 
 Mallory v. Mallory, ... 33 
 Mallow v. Hinde, . . . 323 
 Malmesbury v. Malmesbury, . 168 
 Malzy v. Edge, ... 37 
 
 Manchester v. Dey, . . 196, 356 
 Mandeno v. Mandeno, . . 394 
 Mandeville v. Riggs, . . .321 
 Manes v. Durant, . . .180 
 Mange v. Guenat, . . .12 
 Manhattan Gas Co. v. Barker, . 196 
 Mann v. Betterley, . . .183 
 v. Butler, . . . .321 
 v. Higgins, . . . 243 
 Manners v. Manners. . . 230 
 
 Manning v. Drake, . . ' . 20 
 v. Laboree, . . 233 
 
 v. Manning, . . 61 
 
 Mann's Exrs. v. Falcon, . .111 
 Mansell's Estate, . . .261 
 Mantz v. Buchanan, . . . 233 
 Many v. Beekman Iron Co., 303, 310, 
 
 314 
 
 Mapps v. Sharpe, . . .61 
 Marberger v. Pott, . . . 268 
 Marble Co. v. Ripley, . . 82 
 
 Marburry v. Madison, . . 8
 
 TABLE OF AMERICAN CASES. 
 
 Ixv 
 
 March v. Berrier, . . . 285 
 
 v. Davidson, . . 18, 19 
 
 t\ Ludlam, ... 6 
 
 r. Thompson, . . 400 
 
 Margaret r. Conestogo, . . 400 
 
 Marine Bank v. Fulton Bank, . 57 
 
 Ins. Co. v. Hodgson, . 197 
 
 Mariott r. Handy, . . .110 
 
 v. Sam Badger, . 92, 96, 97 
 
 Marlatt r. Warwick, . . .174 
 
 Marquand r. N. Y. Man. Co., . 242 
 
 Marsh r. Hague, . . 103, 258 
 
 v. Hunter, . . 57, 58 
 
 v. Lee, . . . 110, 162 
 
 v. Reed, . . . .202 
 
 v. Turner, . . .128 
 
 v. Wheeler, . . .136 
 
 Marshall v Billingsly, . . 183 
 
 v. Means, . . 309, 310 
 
 v. Riley, . . 3 
 
 v. Stephens, . . 46 
 
 Marston v. Brackett, . . 376 
 
 Marten r. Van Schaick, . . 243 
 
 Martin v. Bell, .... 45 
 
 v. Densford, . . . 258 
 
 v. Dryden, . . . 321 
 
 v. Greer, . . 28, 33 
 
 v. Jackson, . 115, 117, 157 
 
 '. McBryde, . . . 303 
 
 v. Martin, . . 103, 310 
 
 r. Melville, . . .107 
 
 v. Mowlin, . . .110 
 
 v. Py croft, . . .87 
 
 v. Sale, .... 153 
 
 P. Weil, .... 310 
 
 '. Wincoop, ... 61 
 
 Martinetti r. Maguire, . . 213 
 
 Marvin v. Elwood, . . 205, 206 
 
 v. Tittsworth, . .111 
 
 r. Trumbull, . . 246 
 
 Maryland, &c., Co. v. Wingert, . 363 
 
 Mason v. Begg, .... 257 
 
 v. Blair, ... 86 
 
 v. Connell, . . 241, 242 
 
 v. Man, .... 221 
 
 i . Martin, . . . 363 
 
 Matter of, . . .290 
 
 f. Peck, . . .21 
 
 /. Williams, . . . 183 
 
 r. York, . . .316 
 
 Mason's Estate, . . 261. 263 
 
 Massey >. Mcllwain, . . .86 
 
 v. Massey, ... 28 
 
 v. Parker, ... 44 
 
 Massie v. Greenhow, . . 151 
 
 Masters r. Prentiss, ... 3 
 
 Mastin v. Marlow, . . . 186 
 
 Matlack v. James, . . . 243 
 
 Matthews v Aiken, . . . 269 
 
 v. Dragaud, . . 59 
 
 Matthews v. Matthews, . . 230 
 
 v. Ward, ... 50 
 
 Matthewson v. Clarke, . . 242 
 
 Mattox v. Tremain, . . . 360 
 
 Maude v. Rodes, . . . 243 
 
 Maulden v. Armistead, . . 83 
 
 Maury v. Lewis, ... 379 
 
 Maxwell v. Hyslop, . . . 204 
 
 v. Kennedy, . . 303 
 
 r. Maxwell, . 93, 230 
 
 v. Pittenger, . 84, 183 
 
 v. Whieldon's Adm'r., 28 
 
 May v. Armstrong, . . 17, 403 
 
 v. Eastin, . . . Ill, 389 
 
 . LeClaire, . . . 144 
 
 v. Smith, .... 309 
 
 v. Snyder, .... 177 
 
 v. Williams, . . . 345 
 
 Mayberry v. Brien, . . . 233 
 
 Mayer v. Gulluchat, . . 61, 344 
 
 Mayham v. Coombs, . . 153 
 
 Mayne v. Baldwin, . . . 283 
 
 v. Griswold, . . 303, 309 
 
 Mayo v. Judah, .... 107 
 
 v. Murchie, . . . 302 
 
 Mayor, &c., of Basingstoke v. Lord 
 
 Bolton, . . 237, 238 
 of Beverly v. Att.-Gen. 71 
 
 of Georgetown v. Alexan- 
 dria Canal Co., . .211 
 &c., of York v. Pilkinton, 194 
 Meacham v. Sternes, . . 61 
 
 Mead v. Camfield, . . .83 
 v. Merritt, . . .198 
 Meads v. Langdon's Heirs, . 248 
 Meason v. Kaine, . . 33, 86 
 Mechanics' Bank fl.Levy, 10, 305,308, 
 
 344 
 
 v. Lynn, . 308 
 
 Meconkey v. Rodgers, . . 240 
 Medlock v. Cogburn, . . 292 
 
 Meeker v. Meeker, ... 77 
 Mehl v. Von Derwulbeke, . . 77 
 Melchor v. Barger, ... 93 
 Melick v. Darling ... 93 
 r. Melick, . . . 316 
 Melleesh v. Bridger, . . . 274 
 v. Robertson, . . 168 
 Mendes v. Guedella, ... 58 
 Meng v. Houser, . . . 270 
 Menude v. Delaire, ... 28 
 Merced Mining Co. v. Freemont, 210 
 Mercer v. Newsom, . . .61 
 r. Stark, . . 29, 33 
 Merchants' Bank v. Davis, . 20 
 
 Meri wether i'. Bird, . . . 223 
 Merriam v. Barton, . . .113 
 Merrick v. Gordon, . . . 239 
 Merrill r. Bartlett, . . . 268 
 Merrith v. Lambert, . . . 184
 
 Ixvi 
 
 TABLE OF AMERICAN CASES. 
 
 Merritt v. Bartholick, 
 
 Matter of, 
 Mertens v. Haigh, 
 Messervey w. Barelli, . 
 Metcalf v. Cady, 
 
 110 
 194 
 16 
 320 
 310 
 
 Meth. Church v. Mayor, &c., of 
 
 Baltimore, . 198 
 
 v. Remington, . . 67 
 
 v. Wood, . . 83 
 
 Meth. Epis. Ch. v. Jacques. 8, 33, 307 
 
 Metier v. Metier, . .' 19, 363 
 
 Mevey's Appeal, . . . 270 
 
 Miami Co. v. U. S. Bank, . . 272 
 
 Michian v. Wyatt, . 309,313,346 
 
 Michoud v. Girod, ... 61 
 
 Middleton v. Middleton, . 263, 274 
 
 Milburn v. Guythur, . . .233 
 
 Miles v. Bacon, .... 61 
 
 , v. Durnford, . . . 251 
 
 v. Miles, .... 363 
 
 v. Smith, . . . .315 
 
 v. Wister, . . . .103 
 
 Milhau v. Sharp, . . .211 
 
 Milk v. Moore, .... 376 
 
 Mill v. Hill, . . . .191 
 
 Millard v. Hathaway, . . 33 
 
 Milledge v. Lamar, . . . 233 
 
 Miller V. Andress, . . . 240 
 
 v. Beverleys, . . .61 
 
 v. Bingham, ... 44 
 
 v. Blackburn, ... 33 
 
 v. Chetwood, ... 85 
 
 v. Gotten, . . 176, 303 
 
 v. English, . . . 210 
 
 v. Fenton, . . 268, 402 
 
 v. Fitchthorn, . . .168 
 
 v. Ford, . . . .334 
 
 v. Furse, .... 304 
 
 v. Grandy, . . .201 
 
 v. Hartle, . . .101 
 
 v. Harwell, . . 263, 275 
 
 v. Henderson, . . . 106 
 
 v. Heulan, . . 77. 88 
 
 v. Lincoln, . . . 118 
 
 v. Lockwood, . . .110 
 
 v. McCan, . . 194, 364 
 
 v. Meetch, ... 30 
 
 v. Pearce, . . .248 
 
 v. Porter, ... 65 
 
 v. Saunders, . . 336, 344 
 
 v. Sawyer, . . .269 
 
 v. Sherry, . . .157 
 
 v. Thurgood, . . 94, 96 
 
 v. Tolleson, . . .363 
 
 v. Wells, . . . 168, 185 
 
 v. Whittier, . . . 386 
 
 v. Wornack's Adm'rs., . 227 
 
 Miller's Estate, . . . .285 
 
 Milligan v. Milledge, . . .322 
 
 Milliken v. Dravo, ... 86 
 
 Mills v. Argall, . . . .241 
 
 v. Dennis, . . . 121, 285 
 
 v. Gore, .... 363 
 
 v. Lewis, . . . .171 
 
 Milnes v. Gery, . . . .77 
 
 Milroy v. Lord, .... 80 
 
 Miltenberger v. Morrison, . . 309 
 
 Minis v. Macon, . . . .128 
 
 Miner v. Atherton's Executor, . 105 
 
 Minturn v. Seymour, 78, 196, 356 
 
 Mississ. & Missouri R. R. Co. v. 
 
 Ward, 211 
 
 Mitchell v. Bunch, . . 360, 3>>1 
 
 v. Burnham, . .110 
 
 v. Lennox, . . . 346 
 
 v. Manufacturing Co., . 220 
 
 v. Mitchell, . 261, 263, 274 
 
 v. Oakley, . . .194 
 
 v. Smith, ... 19 
 
 v. S'proul, . . .269 
 
 v. Wilson, ... 88 
 
 v. Winslow, ... 54 
 
 Mix v. Hotchkiss, . . 121,302 
 
 Moale v. Buchanan, . . 85, 86 
 
 Mobile Ins. Co. v. Huder, . . 270 
 
 &c., R. R. Co.v. Talman, 310 
 
 Mook v. Candiff, . . .198 
 
 Moderwell v. Mullison, . . 246 
 
 Moffit v. McDonald, ... 33 
 
 Mohawk Bridge Co. v. Utica & 
 
 Schenectady Railroad Co., . 211 
 
 Mollan v. Griffith, . . 263, 275 
 
 Molyneaux t>. Collier, . . 346 
 
 Monell v. Dickey, . . . 282 
 
 v. Monell, . . 57, 58 
 
 Money v. Jordan, . . 196, 356 
 
 Monk v. Harper, . . . 226 
 
 Monro v Allaire, ... 61 
 
 v. Taylor, ... 88 
 
 Monroe v. James, ... 37 
 
 Montague v. Dudman, . . 194 
 
 v. Lobdell,' . . 317 
 
 v. Turpin, . . . 319 
 
 Montefiore v. Guedella, . . 105 
 
 Montefiori v. Browne, . 31,151 
 
 Montgomery i'. Milliken, . . 136 
 
 Moodie v. Bannister, . . . 314 
 
 Moody v. Payne, . . . 242 
 
 Mooers v. White, . . .227 
 
 Moore v. Anderson, . . .312 
 
 v. Appleton, . . . 268 
 
 v. Auditor, . . . 153 
 
 v. Beason, . . .110 
 
 v. Bray, .... 269 
 
 v. Burrows, ... 81 
 
 . Cable. . . . 115, 118 
 
 v. Crofton, ... 78 
 
 v. Connell, . . .110 
 
 v. Gamble, . . .198 
 
 v. Green, . . . 303
 
 TABLE OF AMERICAN CASES. 
 
 Ixvii 
 
 Moore v. Holcomb, . 
 
 . 128 
 
 Movan v. Hays, .... 
 
 28 
 
 v. Hylton, . 196, 
 
 356, 363 
 
 Mowatt v. Carow, 
 
 400 
 
 v. Isley, . 
 
 . 269 
 
 Muir v. Leitch, .... 
 
 243 
 
 v. Mooney, 
 
 . 48 
 
 v. Schenck, 
 
 53 
 
 i\ .Moore, . 264, 
 
 269, 285 
 
 v. Trustees, . . 248, 
 
 303 
 
 r. Murrah, 
 
 . 315 
 
 Mullin v. Bloomer, 
 
 87 
 
 v. Small, . 
 
 86 Mullings v. Trinder, . 
 
 84 
 
 Moorer v. Korpmann, 
 
 77 Mullock v. Jenkins, . 
 
 320 
 
 Morehouse v. Cotheal, 
 
 . 208 
 
 Mulloy i\ Young, 
 
 363 
 
 Moreland v. Atkinson, 
 
 . 168 
 
 Mulock v. Mulock, 
 
 309 
 
 t 1 . Lancasters, 
 
 86 
 
 Mulvaiiey v. Kennedy, 
 
 210 
 
 Morenhaut v. Higuera, 
 
 . 230 
 
 Mumford v. Murray, . . 57 
 
 , 61 
 
 Mor&ton v. Harrison, . 
 
 128, 340 
 
 Mundorfv. Kibourn, . 
 
 77 
 
 Morey v. Forsyth, 
 
 . 317 
 
 Munsell v. Loree, 
 
 77 
 
 v. Herrick, 
 
 . 212 
 
 Munson v. Munson, . 
 
 202 
 
 Morgan v. Annis, 
 
 . 248 
 
 Murphey v. Galley, 
 
 111 
 
 v. Higrgins. . 
 
 . 184 
 
 Murphy t;. Clarke, 
 
 310 
 
 Matter of, 
 
 . 290 
 
 v. Jackson, . 
 
 319 
 
 v. Morgan, 
 
 115, 415 
 
 v. Nathans, . . 
 
 101 
 
 v. Pope, 
 
 . 103 
 
 Trigg, 
 
 111 
 
 v. Scott, 
 
 . 88 
 
 Murray v. Ballou, 
 
 157 
 
 v. Smith, 
 
 199, 403 
 
 v. Blatchford, . 363, 
 
 400 
 
 Morning Starr. Selby, 
 
 . 248 
 
 v. Lord Elibank, . 
 
 48 
 
 Mornington r. Mornington, 
 
 6 
 
 v. Lylburn, . . 144, 
 
 157 
 
 Morris t\ Dillard, 
 
 . 302 
 
 v. Murray, 
 
 243 
 
 v. Hoyt, 
 
 88 
 
 v. Tolland, . 
 
 228 
 
 i'. Lewis, 
 
 78, 79 
 
 Murrell v. Goodyear, 
 
 88 
 
 i 1 . Morris, . 55, 
 
 285, 287 
 
 Murrill v. Neill, . * . 
 
 243 
 
 v. Nixon, 
 
 111, 363 
 
 Musselman v. Eshelman, . 
 
 61 
 
 v. Olvvine, 
 
 . 272 
 
 Mustard t'. Robinson, . 233, 
 
 454 
 
 v. Parker, 
 
 308, 344 
 
 Mutlow >. Mutlow, . 
 
 252 
 
 & Essex R.R. Co. v. Blair, 363 
 
 Myers v. Hay, .... 
 
 107 
 
 Morrison v Beckwith, 
 
 . 270 
 
 v. Kenzie, 
 
 21 
 
 r. Hart, 
 
 . 304 
 
 v. Myers, . . .57, 
 
 287 
 
 v. Kelley. . 
 
 . 153 
 
 v. Wade, .... 
 
 286 
 
 v. Kurtz, 
 
 243, 272 
 
 v. White, 
 
 114 
 
 v. March, 
 
 . 151 
 
 
 
 v. McLeod, . 
 
 84, 183 Nace v. Boyer, .... 
 
 183 
 
 v. Taylor, . 
 
 . 269 Nactrieb v. Harmony Settlement, 
 
 184 
 
 Morrison's Adm'r. v. Tenn. Ins 
 
 .Co. ,270 Nagle v. Ingersoll, . . 136, 
 
 139 
 
 Morrow v. Breuizer, . 136, 
 
 138, 139 Nail v. Mobley, .... 
 
 310 
 
 v. Riley, 
 
 . 240 Nailer v. Stanley, 
 
 270 
 
 Morse v. Martin, 
 
 . 101 Napier v. Catron, 
 
 240 
 
 Morss v. Elmendorf, . 
 
 85 
 
 v. Elam, 
 
 179 
 
 Morton v. Adams, . 
 
 61 
 
 Nash v. Smith, . . . 205, 
 
 334 
 
 v. Barrett, 
 
 . 61 
 
 Nathans v. Morris, 
 
 61 
 
 Mosby v. Tavlor, 
 
 . 107 
 
 Natusch v. Irving, 
 
 321 
 
 9. Wall, . 
 
 85, 168 
 
 Navulshaw v. Brownrigg, . 
 
 222 
 
 Moser v. Libenguth, . 
 
 . 173 
 
 Naylor v. Naylor, 
 
 290 
 
 Moses v. Murgatroyd, 
 
 31, 252 
 
 Neale v. Hagthrop, . . 21, 
 
 307 
 
 Mosher v. Mosher, 
 
 . 233 
 
 v. Neales, . . 
 
 78 
 
 Moss v. Auglo-Egyptian Co., 
 
 . 403 
 
 Neatherley v. Ripley, 
 
 86 
 
 t\ Bainbrigge, . 
 
 . 184 
 
 N. E. Bank v. Lewis, 
 
 363 
 
 i'. Hanson, 
 
 . 84 
 
 i'. Newport Steam 
 
 
 Motley r. Jones, 
 
 . 239 
 
 Factory Co., 
 
 310 
 
 Mott v. Harrington, . 
 
 . 184 
 
 i?.. Stockholders, &c., 
 
 321 
 
 Moulton v. Camroux, 
 
 . 182 
 
 NeflF v. Miller, .... 
 
 272 
 
 Mounce v. Byars, . 128, 
 
 346, 347 
 
 Neff's Appeal, . . .57, 
 
 272 
 
 Mount Holly Turnpike Co 
 
 v. 
 
 Neill v. Keese, .... 
 
 33 
 
 Ferree, .... 
 
 . 202 Neilson v. McDonald, 
 
 364
 
 Ixviii 
 
 TABLE OF AMERICAN CASES. 
 
 Neimcewicz v. Gahn, . 
 
 Nelson v. Barter, 
 v. Boyce, 
 v. Carrington, 
 v. Clay, . 
 v. Dunn, 
 v. Everett, 
 . Harris, 
 v. Lee, .. 
 t). Owen, 
 v. Pinigar, 
 v. Robinson, . 
 v. Rockwell, 
 
 . 113, 269 
 
 . 205 
 
 . 162, 163 
 
 . 121 
 
 . 268 
 
 272, 402, 403 
 
 . 104 
 
 . 220 
 
 . 285 
 
 . 196, 356 
 
 . 208 
 
 . 356 
 
 198 
 
 Neptune Ins. Co. v. Dorsey, . 270 
 
 Nesbit v. Lockman^ . . . 184 
 
 v. Moore, ... 81 
 
 Neve v. Pennell, . . . 165 
 
 Neves v. Scott, ... 40, 42 
 
 Neville v. Demeritt, . . . 364 
 
 v. Merchants' Insurance 
 
 Company, . . 83 
 Nevitt v. Gillespie, . . 199,208 
 Nevius v Dunlap, . . . 171 
 Newberry, In re, ... 282 
 New Brunswick Co. v. Muggeridge, 
 
 336 
 
 Newcomb v. St. Peter's Church, 65 
 Newcomer v. Wallace, . . 263 
 Newenham v. Pemberton, . . 47 
 N. H. Savings Bank v. Colcord, 268 
 New Jersey Franklenite Co. v. 
 
 Ames, 315 
 
 Newland v. Rogers, . . . 310 
 Newlin v. Freeman, ... 46 
 New London Bank v. Lee, . 312, 321 
 Newman v. Chapman, . 157 
 
 v. Kendall, . . .315 
 New Market . Smart, . . 62 
 Newmen v. Bean, . . . 239 
 Newport v. Cook, . . 286, 287 
 Newsom v. Bufferlow, . . 168 
 Newton v. Swazey, ... 86 
 New York Steamboat Co. v. New 
 
 Jersey Co., . . . .272 
 
 Nice's Appeal, . . . .153 
 
 Nicholl v. Trustees, . . 199, 392 
 
 Nicholls v. Peak, . . . 156 
 
 v. Roe, . . . 193 
 
 Nichols v. Levy, . . .42 
 
 v. Perry Patent Arm Co., 352 
 
 Nicoll v. Mumford, . . .268 
 
 Matter of, ... 281 
 
 v. Ogden, . . . 233 
 
 Niles v. Anderson, . . . 336 
 
 Nimmo v. Stewart, . . . 303 
 
 Nisbett v. Cantrell, . . . 399 
 
 Nix v. Bradley, .... 45 
 
 Nixon v. Richardson, . .361 
 
 Nixon's Appeal, ... 33 
 
 Noble v. Wilson, . . 196, 356 
 
 Nodine v. Greenfield, . . 316 
 
 Nokes v. Seppings, . . . 350 
 
 Norcross v. Widgery, . .153 
 
 Norment v. Wilson, . . . 231 
 
 Norris v. Clymer, . . . 285 
 
 v. Hill, . . . .268 
 
 v. Jackson, ... 77 
 
 v. Vernon, . . . 241- 
 
 North American Coal Co. v. Dyett, 
 
 46, 346 
 
 North Bait. Assn. v. Caldwell, 61 
 
 Northampton Paper Mills v. Ames, 1 14 
 
 Northrop v. Hatch, . . 3, 5, 334 
 
 Norton v. Coons, . . . 269 
 
 Norwich v. Hubbard, . .114 
 
 &c. R. R. Co. v. Storey, 20 
 
 Norwood v. Norwood, . .231 
 
 Nourse v. Allen, . . . 309 
 
 v. Prime, . . .227 
 
 Noyes v. Blakeman, ... 46 
 
 v. Sawyer, . 312, 321, 346 
 
 Nugent v. Riley, . . . Ill- 
 
 v. Vetzera, . . .282 
 Nunn v. Fabian, ... 86 
 
 v. Harvey, . . .286 
 Nurse v. Lord Seymour, . . 85 
 Nutbrown v. Thornton, . . 77 
 Nutt v. Nutt, .... 93 
 
 Obert v. Obert, .... 61 
 
 Obrien v. Elliott, . . .363 
 
 Ocean Ins. Co. v. Fields, . . 3 
 
 Ochiltree v. Wright, ... 58 
 
 O'Connor v. Debraine, . . 360 
 
 v. Tack, . . 4, 15 
 
 Odenbaugh v. Bradford, . .Ill 
 
 Offenhouse v. Burleson, . . 86 
 
 Ogden v. Astor, 179, 227, 228, 239, 246 
 
 v. Glidden, . . .270 
 
 Oglander v. Oglander, . . 39 
 
 O'Hara v. Shepherd, 408, 412, 415, 418 
 
 O'Harra v. Cox, . . . 335 
 
 Ohio v. Baurn, .... 82 
 
 v. Ellis, . . . .302 
 
 Ins. Co. v. Ledyard, . . 153 
 
 v. Ross, . . 153 
 
 Life Ins. Co. v. Winn, 269, 389 
 
 Okeson's Appeal, . . . 275 
 
 Oldham v. Oldham, . . .183 
 
 v. Rowan, . . .317 
 
 Olds v. Cummings, . .110, 144 
 
 Olive v. Dougherty, ... 33 
 
 Oliver v . Mutual Comm. Marine Ins. 
 
 Co., . . . .168 
 
 v. Palmer, . . 23, 312 
 
 v. Piatt, .... 310 
 
 Onslow v. Wallis, ... 32 
 
 Ontario Bank v. Schermerhorn, 346 
 
 Oppenheim v. Leo Wolf, . . 205 
 
 Orcutt v. Orms, . . . . 339
 
 TABLE OF AMERICAN CASES. 
 
 Ixix 
 
 Orear r. Tanner, 
 
 . 85 
 
 Orleans c. Chatham, . 
 
 28 
 
 r. Phoabus, . 
 
 . 233 
 
 Ormsbee r. Davis, 
 
 241, 242 
 
 Ormsby r. Bakewell, . 
 
 . 364 
 
 Orton r. Smith, . 
 
 . 198 
 
 Osborn v. Carr. . 
 
 162, 163 
 
 r. Phelps, 
 
 85, 172 
 
 Osborne i\ Bank of United 
 
 States, 
 
 
 20, 363 
 
 r. Endicott, . 
 
 . 33 
 
 v. Taylor, 
 
 . 205 
 
 Osgood r. Franklin, . 
 
 79, 174 
 
 Ostell r. Lepage, 
 
 . 260 
 
 Oswald P. McGeliee, . 
 
 . 177 
 
 Otes v. Sill, 
 
 123, 150 
 
 Otley /. Havilaud, 
 
 . 114 
 
 Overholt's Appeal, 
 
 243, 246 
 
 Owen v. Homan, 
 
 . 352 
 
 v. Paul, 
 
 166, 167 
 
 Owens v. Cowan, 
 
 . 138 
 
 v. Miller, 
 
 . 268 
 
 r. Ranstead, . 
 
 . 198 
 
 Owing' s Case, 
 
 . 291 
 
 Owings r. Baldwin, . 
 
 84, 86 
 
 v. Emery, 
 
 . 208 
 
 v. Hull, 
 
 . 303 
 
 Owongs P. Myers, 
 
 . 157 
 
 Oxford's (Earl of) case, 
 
 . 194 
 
 Ozley v. Ikelheimer, . 
 
 45 
 
 Packer v. Sunbury, &e., R. 
 
 R., . 356 
 
 Padbury v. Clark, 
 
 96 
 
 Padwick '. Hurst, 
 
 . 222 
 
 Page v. Allen, 
 
 . 313 
 
 v. Cox, 
 
 . 246 
 
 v. Page, . 
 
 21, 33, 101 
 
 Re, . 
 
 . 301 
 
 Pahlman r. Graves, . 
 
 . 243 
 
 Pain v. Coombs, 
 
 . 86 
 
 v. Packard, 
 
 . 268 
 
 Paine v. Wilcox, 
 
 . 87 
 
 Pallen '. Agric. Bank, 
 
 270, 272 
 
 Palmer v. Guernsey, . 
 
 . Ill 
 
 v. Harris, 
 
 . 217 
 
 v. Richardson, 
 
 86, 87 
 
 r. Van Doren, 
 
 . 364 
 
 Paunell v. Farmers' Bank, . 
 
 . 121 
 
 Pardee v. De Cala, 
 
 . 373 
 
 Parish v Lewis, 
 
 . 243 
 
 v. Sloan, 
 
 310, 335 
 
 Park v. Ballentine, 
 
 . 312 
 
 v. Johnson, 
 
 79 
 
 Parke v. Seewright, . 
 
 86 
 
 Parker v. Carter, 
 
 6, 304, 305 
 
 v. Culvertson, 
 
 . 268 
 
 v. Foy, . 
 
 . 151 
 
 v. Gilliam, 
 
 . 251 
 
 v. \ightingale, 
 
 . 208 
 
 v. Parker, 
 
 . 86 
 
 Parker v. Pierce, . . .153 
 v. Taswell, . . .77 
 v. Vose, .... 61 
 v. Wills, . . . 86 
 
 v. Winipeseogee Lake Cot- 
 ton and Woollen Co., 210 
 Co. r.Sewell, . . 128 
 
 Parkhurst v. Cummings, . .115 
 v. Van Courtland, 86, 91 
 Parkin v. Thorold, . . 87, 88 
 Parkinson v. Trousdale, . . 8 
 Parkist v. Alexander, . . 153 
 
 Parkman . Welch, . . .270 
 Parmelee v. Lawrence, . .111 
 Parret v. Shaubhut, . . .153 
 Parrish v. Coons, . . 77, 363 
 Parson v. Bedford, . . . 376 
 v. Bowne, . . . 335 
 Parson's Adm'r. v. Wilson, . 167 
 Parsons v. Parsons, ... 48 
 Partridge v. Havens, . . 33, 101 
 Pascalis v. Canfield, . . . 252 
 Patchin v. Lamborn, ... 88 
 Paterson & Hudson River R. R. 
 
 Co. v. Jersey City, . . .199 
 
 Patterson v. Ackerson, . . 376 
 
 v. Chalmers, . . 268 
 
 p. Gaines, . . 310, 363 
 
 v. Hobbs, ... 21 
 
 v. Patterson, . 251, 334 
 
 v. Scott, . 263, 275, 276 
 
 v. Yeaton, ... 86 
 
 Pattison v. BlancUard, . . 239 
 
 v. Hull, . . .392 
 
 v. Shaw, . . .315 
 
 Patton v. Ash, .... 364 
 
 v. Borough, . . 151, 153 
 
 v. McClure, ... 86 
 
 v. Schooner Randolph, . 268 
 
 Patty r. Pease, . . . .270 
 
 Paul v. Fulton, . . . .151 
 
 v. Squib, .... 61 
 
 Paulding v. Watson, . . . 363 
 
 Paulin v. Kaighn, . . . 268 
 
 Faulting v. Sturgus, . . .21 
 
 Pawling v. Jackson, . . . 192 
 
 Paxton v. Harner, . . . 270 
 
 Payne v. Matthews. . .. . 243 
 
 Paynes . Coles, . . . 363 
 
 Payton v. Smith, . . . 268 
 
 Peabody. v. Tarbell, ... 33 
 
 Peace v. Hains, . . . .106 
 
 Peachy v. Somerset, . . .107 
 
 Pearce v. Morris, . . .113 
 
 v. Olney, . . .198 
 
 Pearl v. Nashville, . . 221,222 
 
 Pearpoint v. Graham, . . 241 
 
 Pearse i\ Dobinson, . . . 331 
 
 Pearson v. Benson, . . . 184 
 
 v. Daniel, . . . 151
 
 Ixx 
 
 TABLE OF AMERICAN CASES. 
 
 Pearson v. Darrington, . . 402 
 
 v. Duckham, . . 269 
 
 v. Rockhill, ... 31 
 
 v. Seary, . . .111 
 
 v. Seay, . . .111 
 
 Peck v. Ashley, . . 19, 20 
 
 v. Crane, . ... .199 
 
 v. Elder, . . . .211 
 
 v. Ellis, . . . .268 
 
 v. Fisher, . . . .246 
 
 v. Sanderson, . . . 399 
 
 v. Woodbridge, . . . 194 
 
 Peckham v. Barker, ... 86 
 
 Peebles v. Reading, . . .33 
 
 Peer v. Cookerow, . . . 406 
 
 Pegg v. Corder, .... 77 
 
 v. Wisden, . . 87, 88 
 
 Pegler v. White, ... 84 
 
 Peile v. Stoddart, . . .17 
 
 Pell v. Ball, . . . 230, 231 
 
 Pella v. Schott, . . . .331 
 
 Pemberton v. Pemberton, . 92, 94 
 
 v. Riddle, . .317 
 
 Pence v. Pence, .... 312 
 
 Pendleton v. Fay, . . . 151 
 
 v. Wambersie, . . 220 
 
 Pennell v. Deffell, . . 57, 60, 221 
 
 v. Roy, . . . .198 
 
 Pennington v. Gibson, . . 395 
 
 v. Gittings, . . 363 
 
 v. Governor, . . 167 
 
 Pennock v. Coe, .... 54 
 
 v. Swayne, . . . 240 
 
 Pennock's Estate, . . .31 
 
 Pennsylvania t>. Wheeling Bridge 
 
 Co., 211 
 
 Penny v. Cook, .... 55 
 
 v. Davis, .... 37 
 
 v. Turner, . ' . .30 
 
 Pensenneau v. Pensenneau, . 309 
 
 Pensoneau v. Pulliam, . .111 
 
 Pensacola R. R. v. Spratt, . . 309 
 
 People v. Mercein, . . 280,283 
 
 v, San Francisco, . .177 
 
 v. Third Avenue Co., . 211 
 
 v. Wilcox, . . 280, 281 
 
 People's Bank v. Pearsons, . 268 
 
 Perin v. Carey, . . . .198 
 
 Perkins v. Hadsell, ... 86 
 
 v. Hallowell, . 19(i, 356 
 
 v. Kershaw, . ... 269 
 
 Matter of, . . ' . 293 
 
 v. McGavock, . . 179 
 
 v. Nichols, . . . 363 
 
 v. Swank, . . . 151 
 
 v. Wright, . . 77, 84 
 
 Ferine v. Striker, . . . 194 
 
 Perry Herrick v. Attwood, . 150 
 
 i>. Boileau, ... 45 
 
 v. Carr, ... . . 303 
 
 Perry v. Parker, . . . .195 
 
 Person v. Nevitt, . . . 418 
 
 Persch v. Quiggle, . . .310 
 
 Peter v. Beverly, . . 37, 136 
 
 Peters v. Florence, . . . 168 
 
 v. Goodrich, . . 151, 153 
 
 Peto v. Hammond, . . . 151 
 
 v. Railroad Co., . . 81,207 
 
 Petrie v. Clark, . . . .251 
 
 Pettit, Matter of, ... 293 
 
 Pettitt v. Chandler, . . 10, 308 
 
 In re, .... 297 
 
 v. Jennings, ... 20 
 
 Petty v. Petty, . . . .180 
 
 Peyton v. Alcorn, . . . 285 
 
 v. Smith, . . . 280 
 
 Phares v. Barbour, . . . 268 
 
 v. Walters, . . .233 
 
 Pharis v. Leachman, . . . -250 
 
 Phelps & Spafford v. Curtis, . 23 
 
 v. Green, . . . 231 
 
 v. Platt, . . . .13 
 
 v. Pond, . . . .136 
 
 v. Prothero, . . . 346 
 
 v. Stewart, . . . 230 
 
 Phila. & Erie v. Catawissa R. R. 
 
 Company, . . . 321 
 Wilra. & Bait. R. R. v. 
 
 Woelpper, . . . 110 
 
 Philbrook v. Delano, . . . 128 
 
 Philhower v. Todd, . . .194 
 
 Philips v. Crammond, . 83, 142 
 
 v. Thompson,. . . 91 
 
 Phillips v. Belden, . . 227, 228 
 
 v. Berger, ... 83 
 
 v. Cook, . . .242 
 
 v. Edwards, ... 86 
 
 v. Evans, . . .193 
 
 v. Hollister, . . . 177 
 
 v. Hudson, . . . 200 
 
 v. Hulsizer, . . Ill, 389 
 
 v. Moore, . . .183 
 
 v. Phillips, . . .222 
 
 v. Prevost, . . 8, 308 
 
 v. Richardson, . . 363 
 
 v. Stauck, ... 77 
 
 Phillipson v. Keary, . . . 169 
 
 Philpott v. Elliott, ... 85 
 
 v. St. George's Hospital, 67 
 
 Phoenix v. Ingraham, ... 20 
 
 Phyfe v. Wardell, ... 77 
 
 Piatt v. Oliver, . . . 33, 318 
 
 v. St. Clair, . . .270 
 
 Pierce v. Brown, . . .117 
 
 v. Fuller, . . .107 
 
 v. Goldsberry, . . . 268 
 
 Matter of, ... 280 
 
 v. McKeehan, ... 33 
 
 v. Milwaukee R. R., . 110 
 
 v. Pierce, ... 33
 
 TABLE OF AMERICAN CASES. 
 
 Ixxi 
 
 Pierce Tiernan, . . . .243 
 
 v. Trigg 233 
 
 f. West's Executors, . 363 
 Pierson v. David, . . . 128 
 v. Ryerson, . . .194 
 f. Steinmeyer, . . 239 
 Piggott v. Strattou, . . .208 
 Pike if. Armstead, . . . 153 
 Pinchain v. Collard, . . .128 
 Pinckard i-. Pinckard, . . 79 
 Pinckney v. Pinckney, . 96, 263 
 Pinkstoii r. Taliaferro, . . 269 
 Pinney v. Fellows, . . 28, 33 
 Pinnock v. Clough, . . 33, 392 
 Pintard v. Martin, . . .174 
 Pirtle v. Perm, . . . .240 
 Pitcher v Barrows, . . . 153 
 Pitney r. Leonard, . . .151 
 Pitts V. Cable, . ' . . .111 
 f. Hooper, .... 308 
 Pittsburgh R. R. v. Schaeffer, . 268 
 Place r. Sweetzer, . . . 242 
 Platt v. McClure, . . .111 
 Pleasants v. Glasscock, . 221, 309 
 v. Ross. . . 192, 376 
 Pledge v. Buss, . . . .106 
 Plimpton v. Fuller, . . .261 
 Plow-den r. Hyde, . . .173 
 Plume v. Bone, .... 153 
 Poillon c. Martin, . . .184 
 Poindexter v. Davis, ... 3 
 v. Henderson, . . 208 
 r. Jeffries, . . 47 
 . McCannon, . .111 
 Pointup r. Mitchell, . . . 222 
 Polhemus v. Trainer, . . . 110 
 Polk v. Gallant, . . 270. 317 
 
 V.Reynolds, . . .112 
 Pollard v Collier, . . .319 
 v. Pollard, ... 94 
 Pomeroy r. Pomeroy, . . 309 
 v. Sigerson, . . 239 
 
 Pooley v. Budd, .... 91 
 Poor v. Carleton, . . 196, 356 
 Pope r. Andrews, . . . 364 
 v. Elliot, .... 43 
 v. Henry, .... 153 
 f. Jackson, . . . 285 
 r. Melone, . . . .315 
 Porcher r. Reid, ... 46 
 Port Clinton R. R. Co. . Cleve- 
 land and Toledo R. R. Co., . 81 
 Porter v. Clements, . . . 315 
 v. Cole, . . . .153 
 v Dubuque, . . . 128 
 v. Doby, .... 40 
 v. Patterson, i . . 228 
 v. Spencer, . . 222, 360 
 v. Turner, . . 99, 101 
 f. Williams, . . . 355 
 
 Porter v. Witham, . . . 211 
 
 Post v. Dart, .... 364 
 
 v. Dorr, . . . .121 
 
 v. Kimberly, . .220 
 
 v. Mackall, 263, 272, 291, 315 
 
 Postlewait r. Howes, . . . 258 
 
 Postley v. Kain, .... 232 
 
 Poston f. Eubank, . . . 270 
 
 Potier o. Barclay, . . . 234 
 
 Potter v. Everett, . . .174 
 
 v. Moses, . . . .239 
 
 v. Stevens, . . . 110 
 
 v. Tuttle, .... 88 
 
 v. Waller, ... 15 
 
 Potts v. Blackwell, . . .243 
 
 Ex parte, .... 286 
 
 v. Whitehead, ... 77 
 
 Powell v. Batson, . . . 399 
 
 Powell v. Central Plank Co., . 77 
 
 v. Firemans' Ins. Co., . 169 
 
 v. Manufacturing Co., 33, 233 
 
 v. North, . . . 246 
 
 v. Thomas, ... 77 
 
 . Williams, . . .118 
 
 Power v. Reeder, . . .222 
 
 Powers v. Bergen, . . . 285 
 
 v. Butler, . . .198 
 
 v. Hale, .... 79 
 
 v. Heery, . . .210 
 
 Powers' Appeal, . . . 186 
 
 Powys r. Blagrave, . . . 208 
 
 Pragoff v. Heslep, . . .268 
 
 Prater v. Miller, . . . .77 
 
 Pratt v. Nonham, . . . 303 
 
 v. Philbrook, . . .177 
 
 v. Taliaferro, 33, 136, 137, 138, 
 
 139 
 
 v. Thornton, . . .31 
 
 r. Wright, . . .282 
 
 Prentice v. Achorn, ... 84 
 
 v. Buxton, . . .221 
 
 Prescott v. Hubbell, . .346 
 
 Preston v. Dunn, . . . 281 
 
 v. Hennig, . . . 268 
 
 v. Whitcomb, . . 168 
 
 Prevost v. Gratz, . . 61, 399 
 
 Prewett v. Coopwood, . . 183 
 
 Prewitt v. Perry, . . .198 
 
 Price v. Berrington, . 176, 182, 303 
 
 v. Clevenger, . . 196, 356 
 
 r. Griffin, . . .88 
 
 v. Griffith, . . .77 
 
 v. McDonald, . . 151, 153 
 
 v. Meth. Church, . . 67 
 
 r. Nesbit, . . . .250 
 
 f. Newman, . . . 151 
 
 v. Price, . . . 183, 233 
 
 v. Salisbury, ... 77 
 
 v. Tyson, .... 389 
 
 Pride v. Boyce, . . . .270
 
 Ixxii 
 
 TABLE OF AMERICAN CASES. 
 
 Prideaux v. Lonsdale, . . 183 
 
 Primmer v. Patten, . . .17 
 
 Prince v. Logan, . . . 286 
 
 Prince Albert t. Strange, . . 214 
 
 Printup v. Mitchell, ... 86 
 
 Prioleau v. The United States, 2, 314 
 
 Pritchard v. Hicks, . .. 258, 316 
 
 v. Wallace,. . . 33 
 
 Probasco v. Johnson, . .123 
 
 Proby v. Landor, ... 31 
 
 Pryor v. Wood, . . . .144 
 
 Pugh v. Bell, .... 33 
 
 v. Currie, . . . .246 
 
 v. Good, .... 86 
 
 v. Pugh, .... 33 
 
 Pulsford v. Richards, . . . 177 
 
 Purcell v. Maddox, . . . 319 
 
 v Miner, ... 86 
 
 Purdy v. Doyle, . . . 252, 257 
 
 v . Purdy, .... 33 
 
 Purviance v. McClintee, . . 239 
 
 Pusey v. Pusey, .... 77 
 
 v. Wright, . 207, 363, 364 
 
 Putnam Free School v. Fisher, . 37 
 
 v. Sweet, . . . 320 
 
 Pyrke v. Waddingham, . . 84 
 
 Quackenbush v. Van Riper, 196, 356 
 Quinn v. Brittain, . . . 118 
 Quirk v. Thomas, . . . 168 
 
 Rabbett v. Squire . . . 343 
 Racouillat v. Rene, . . .153 
 w. Sanswain, . .123 
 Radcliffv. Rowley, . . .303 
 Radcliffe, Ex'rs. of, v. Wightman, 227 
 v. Rushworth, . . 239 
 Ragan v. Echolls, . . . 364 
 Ragland v. Justices, . . .110 
 Ragsdale v. Holmes, . . . 250 
 Raines v. Jones, . . .21 
 
 Rainey v. Yarborough, . . 269 
 Rajah of Coorg v. East India Co., 8 
 Ralston v. Hughes, . . .114 
 
 v. Telfair, . . .32 
 Rambo v. Rambo, . . . 336 
 Ramey v. Green, . 315, 316, 413 
 Ramsay's Appeal, . . . 272 
 Ramsey v. Lewis, . . . 269 
 
 v. Listen, ... 86 
 Randall v. Phillips, . . .111 
 
 v. Silverthorn, . .153 
 
 Randolph v. Kinney, . . 201, 221 
 
 v. Randolph, . . 227 
 
 Randolph's Appeal, . . . 402 
 
 Rankin v. Harper, ... 33 
 
 v. Lh.y, .... 86 
 
 v. Maxwell, ... 90 
 Rathbone v. Clark, . . 268, 270 
 Ravenscroft v. Jones, . .105 
 
 Rawling v. Stewart, . . . 118 
 Ray v. Bogart, .... 277 
 Ray & Thornton v. Bank of Ken- 
 tucky, 189 
 
 Raymond v. Crane, . . . 240 
 Rayner v. Pearsoll, . . . 227 
 Read v. Long, .... 79 
 v. Robinson, ... 37 
 v. Simmons, . . . 123 
 Reade v Lacy, .... 216 
 v. Woodruffe, . . .10 
 Reading v. Blackwell, . . 136 
 Rearich v. Swinehart, . . 168 
 Reaves v. Garrett, ... 92 
 Receiver of the City Bank of Buf- 
 falo, In re, . . . . 259 
 Receivers v. Patterson Gas Light 
 
 Co., 355 
 
 Redd v. Wood, .... 335 
 
 Redmon v. Green, . . . 227 
 
 Redmayne v. Forster, . . 125 
 
 Redmond v. Dickerson, . . 335 
 
 Reed v. Bachelder, . . .268 
 
 v. Beazley, ... 45 
 
 v. Cline, .... 376 
 
 v. Kemp, .... 402 
 
 v. Morrison, . . . 233 
 
 v. Murphy, . . . 239 
 
 v. Shepardson, . . . 243 
 
 v. Sidener, . . . 179 
 
 Rees v. Berrington, . . 106, 268 
 
 v. Waters, ... 47 
 
 Reese v. Wyman, . . 168, 177 
 
 Reeves v. Baker, . 29, 31, 306 
 
 v. Cooper, . . .198 
 
 Reg. v. Smith, . . . .283 
 
 Reid v. Fitch, . . 33 
 
 v. Gifford, . . . .211 
 
 v. Laniar, .... 46 
 
 v. Langlois, ... 6 
 
 v. Reid, ... 28, 352 
 
 Reigart v. White, . . .268 
 
 Reilly v. Cavanaugh, . . 335 
 
 Reitenbaugh v. Ludwick, . .111 
 
 Relfv. Eberly, . . . .175 
 
 Rembert v. Brown, . 196, 228, 356 
 
 Remick v. Butterfield, . . 61 
 
 Remington v. Irwin, . . 87, 88 
 
 Remsen v. Remsen, . . 370, 383 
 
 Renton . Chaplain, . . 242, 263 
 
 Renew v. Butler, ... 61 
 
 Renwick v. Renwick, . . 23 
 
 Repp v. Repp, . . . .128 
 
 Resor v. Resor, .... 33 
 
 Respass v. Breckenridge, . . 233 
 
 Rexford v. Widger, . . .175 
 
 Reybold v. Dodd, . . .221 
 
 Reynell v. Sprye, . 6, 14, 175, 177 
 
 Reynolds v. Godlee, . . .15 
 
 v. Reynolds, . .231
 
 TABLE OF AMERICAN CASES. 
 
 Ixxiii 
 
 Rhea v. Forsyth, . 
 v. VThHe, . . 
 Rhines v. Baird, . 
 Rhodes v. Bate, . 
 
 v. Cousins, . 
 v. Crockett, . 
 Rice v. Bernard, . 
 v. Bixler, . . 
 v. Burnett, . 
 
 v. Downing, . 
 v. Raw lings, . 
 v. Rice, . . 
 v. Tonnele, . 
 Rich v. Catterson, . 
 Richards v. Att.-Gen. of Jamaica, 144 
 Ex parte, . 
 v. Pierce, . 
 . Salter, . 
 Richards' Appeal, . 
 Richardson v. Baker, 
 v. Eyton, 
 v. Hunt, . 
 v. Inglesby, 
 v. Jones, 
 r. McKinson, 
 r. Merrifield, 
 r. Wyatt, 
 
 Richmond v. Aiken, . 
 f. Foote, . 
 v. Gray, . 
 
 Ricketts v. Montgomery, 
 Rider v. Riley, .. 
 Ridgely v. Bond, . 
 Ridgley v. Wartield, . 
 Ridgway v. Bank of Tennessee, 198 
 
 v. Toram, . 
 
 Ridgway's Appeal, . 
 
 Ridley v. McNairy, . 
 
 Ridout r. Dowding, . 
 
 Riker v. Darke, .. 
 
 Riley v. McCord, . 
 
 Rinehart v. Harrison, 
 
 Ring v. Ashworth, . 
 
 Ringgold v. Bryan, . 
 
 v. Ringgold, 
 
 Ringo v. Warder, . 
 
 Ripple v. Ripple, . 
 
 Rippy v. Grant. . 
 
 Rittson v. Stordy, . 
 
 Roane v. Pickett, . 
 
 Robards v. Worthara, 
 
 Robb v. Mudge, . 
 
 v. Stevens, . 
 
 Robbins v. Davis, . 
 
 Roberts v. Anderson. 
 
 v. Croft, . 
 
 v. Denny, . 
 
 . Ebenhart, 
 
 v. Jackson, . 
 
 Matter of, . 
 
 . 211 Roberts t\ Rose, 
 
 . 128 
 
 . 268 
 
 v. Tottan, 
 
 . 227 
 
 . 162 v. Welch, 
 
 . 115 
 
 . 183 Robertson v. Bingley, 8, 
 
 335, 344 
 
 . 360 v. Maxcey, 
 
 . 269 
 
 . 269 v. Shewell, 
 
 15 
 
 243, 246 I v. Stephens, . 
 
 96, 310 
 
 . 136 1 v. Sublett, 
 
 31 
 
 28 Robeson v. Hornbaker, 
 
 . 86 
 
 . 270 
 
 v. Pittenger, 
 
 . 211 
 
 . 84 
 
 Robinson v. Briggs, . 
 
 . 184 
 
 159, 160 
 
 v Crowder, 
 
 . 241 
 
 . 287 
 
 v. Fife, 
 
 . 115 
 
 . 168 
 
 v. Geldard, 
 
 . 277 
 
 ca, 144 
 
 v. Governors, 136, 
 
 138, 263 
 
 . 292 
 
 f. Kettletas, 
 
 . 77 
 
 . 309 
 
 v. Lamond, 
 
 6 
 
 203, 389 
 
 v. Lewis, . 
 
 . 397 
 
 . 211 
 
 v. Loomis, . 
 
 . 109 
 
 . 129 
 
 v. Mclvor, . 
 
 263, 275 
 
 . 189 
 
 v. Pett, 
 
 . 61 
 
 . 320 
 
 v. Robinson, 
 
 57, 174 
 
 . 29 
 
 v. Sampson, 
 
 . 20 
 
 61 
 
 v. Wheelwright, 
 
 45 
 
 . 302 
 
 v. Williams, 
 
 . 110 
 
 . 288 
 
 v. Willoughby, . 
 
 . Ill 
 
 233, 246 
 . 115 
 
 v. Woodgate, 
 Robison v. Codman, . 
 
 10 
 . 233 
 
 . 86 
 
 Robson v. Whittingham, . 
 
 . 211 
 
 84 
 
 Rochdale Canal Co. v. King, 
 
 . 211 
 
 . 61 
 
 Rochford v. Hackman, 
 
 42, 282 
 
 8, 345 
 
 Rockafellow v. Baker, 
 
 . ' 177 
 
 . 406 
 
 Rockwell v. Folsom, . 
 
 . 23 
 
 . 340 
 
 v. Hobby, . 
 
 . 123 
 
 ee, 198 
 
 v. Lawrence, 
 
 77, 91 
 
 417, 418 
 
 Rodgers v . Jones, 
 
 . 121 
 
 . 246 
 
 v. Norwill, . 
 
 . 217 
 
 . 86 
 
 v. Rodgers, . 196, 
 
 208, 356 
 
 . 31 
 
 Rodiguez v. Heffernan, 
 
 . 243 
 
 . 230 
 
 Rodman v. Zelley, 
 
 79, 84 
 
 . 121 
 
 Roebuck v. Harkins, . 
 
 . 197 
 
 . 136 
 
 Rogan f. Walker, 
 
 33, 111 
 
 . 168 
 
 Rogers v. Challis, 
 
 . 78 
 
 . 363 
 
 v. Cincinnati, 
 
 . 198 
 
 5, 58, 61 
 
 . French, 
 
 . 104 
 
 . 313 
 
 v. Hill, . 
 
 . 285 
 
 . 151 
 
 v. Murray, . .\ 
 
 . 33 
 
 . 183 
 
 v. Rogers, . 45, 
 
 261, 263 
 
 42, 51 
 
 v. Saunders . 
 
 . 77 
 
 . 319 
 
 v. Solomons, . 
 
 . 356 
 
 263, 275 
 
 v. Waterhouse, 
 
 . 84 
 
 . 243 
 
 Roloson v. Carson, . 
 
 192, 193 
 
 . 243 
 
 Roosevelt v. Draper, . 
 
 . 211 
 
 14, 15 
 
 v. Ellithorp, 
 
 12 
 
 196, 356 
 
 Rorer v. O'Brien, 
 
 . 48 
 
 . 124 
 
 Rorke v. Russell, 
 
 . 356 
 
 2, 87, 88 
 
 Rose v. Hart, 
 
 . 222 
 
 241, 246 
 
 v . Jessup, . 
 
 . 141 
 
 . 285 
 
 v. Rose, 
 
 . 309 
 
 . 293 
 
 v. Watson, 
 
 36, 128
 
 Ixxiv 
 
 TABLE OF AMERICAN CASES. 
 
 Roser v. Randolph, . . .211 
 
 Rosevelt v. Fulton . . . 177 
 
 Roshell v. Maxwell, . . . 198 
 
 Ross v. Adams, .... 389 
 
 v. Butler, . . . .211 
 
 v. Carter, .... 364 
 
 v. Clore, . . . ^ . 270 
 
 v. Drake, . . . * . 136 
 
 v. Gibbs, .... 6 
 
 v. Norvell, . . Ill, 115 
 
 v. Prentiss, . . .417 
 
 v. Ross, .... 351 
 
 v. Union Pacific R. R.. . 81 
 
 v. Whitson, . . .128 
 
 Rossiter v. Cossit, . . . 233 
 
 Rough v. Marshall, . . . 392 
 
 Row v. Dobson, ... 54 
 
 Rowan v. Sharpe's Rifle Company, 
 
 110, 111 
 
 Rowe v. Granite Bridge Co., . 211 
 
 v. Tonkin, . . . 335 
 
 Rowland v. Martindale . .221 
 
 v. Morgan, ... 42 
 
 Rowlands v. Evans, . . . 243 
 
 Rowley v. Houghton, . . 217 
 
 v. Rowley, . . . 185 
 
 Rowton v. Rowton, . . . 233 
 
 Roy v. Wallink, ... 77 
 
 Royal v. McKenzie, . . . 363 
 
 Royer's Appeal, . . . 285 
 
 Royston v. Royston, . . . 231 
 
 Rozier v. Griffith, . . . 232 
 
 Rucker v. Abel, . . 33,101 
 
 v. Howard, . . . 393 
 
 v. Robinson . . . 268 
 
 v. Wynne, . . .175 
 
 Rudisell v. Watson, ... 45 
 
 Rugge v. Ellis, .... 90 
 
 Rumbly v. Stainton, . . . 346 
 
 Rumbold v. Forteath, . . 12 
 
 Rumph v. Abercrombie, . . 183 
 
 Runney Dey, Matter of, . .291 
 
 Runnell v. Read, . . . 168 
 
 Runnells v. Jackson, . . 33 
 
 Runyun v. Mersereau, . .114 
 
 Rush v. Madeira, . . . 416 
 
 Russ v. Hawes, . . 303, 304 
 
 Russell v. Austin, . . . 233 
 
 t>. Chuj-ch, . . . 188 
 
 v. Clark, . . . 323 
 
 v. Failer, . . . 267 
 
 v. Howard, . . . 272 
 
 v. Jackson, . . . 6, 7 
 
 . Lanier, . . . 335 
 
 v. Laice, . . . 121 
 
 v. Russell, . . .123 
 
 v. Southard, . . .111 
 
 Rust v. Ware 198 
 
 Rutherford v. Branch Bank, . 269 
 v. Green, . . 136 
 
 Rutherford v. Jones, . . . 230 
 
 v. Ruff, . . .183 
 
 Rutland v. Paige, . . . 403 
 
 Rutledge v. Greenwood, . . 268 
 
 v. Smith, ... 28 
 
 Ryan v. Dox, .... 33 
 
 v. Shawneytown, . . 310 
 
 Ryno v. Darby, .... 84 
 
 Sabin v. Gilman, . . .282 
 Sahler v. Signer, . . .118 
 
 Sainsbury v. Jones, ... 91 
 
 Salisbury, Matter of, . . 296, 385 
 
 Salmons. Claggett, . 8, 12, 208, 269 
 
 303, 363 
 
 v. Cults, . . 1, 134 
 
 Salomons v. Laing, . . . 319 
 
 Saltonstall v. Sanders, . . 67 
 
 Saltus v. Tobias, . . . 340 
 
 Salusbury v. Denton, . . 30 
 
 Sammons v. Rose, . . . 138 
 
 Sample v. Barnes, . . . 198 
 
 Sampson v. Sampson, . . 101 
 
 Samuel v. Berger, . . . 217 
 
 Sanches v. Carriaga, . . . 197 
 
 Sanders v. Rodway, 45 
 
 v. McAlee, . . . 128 
 
 v. Watson, . . . 269 
 
 Appeal, ... 94 
 
 Sandford v. Jackson, . . 94 
 
 v. McLean, . . . 269 
 
 Sarles v. Sarles, . . . 208 
 
 Saunders v. Albritton, . . 197 
 
 v. Edwards, . . 40 
 
 v. Frost, . .118, 389 
 
 v. Wilson, . . .118 
 
 Savage v. Benham, . . . 309 
 
 Savannah Bank v. Haskins, . 168 
 
 Sawyer v. Hovey, . . .171 
 
 v. Mills, . . . 303 
 
 Saxon v. Barksdale, . . 2bl, 335 
 
 Saylors' Appeal, . . . 347 
 
 Sayre v. Say re, . . . .317 
 
 v. Townshends, . . 33 
 
 Scales v. Collins, . . . 276 
 
 Scarlett v. Hunter, ... 88 
 
 Scarsdale v. Curzon, ... 42 
 
 Schaeffner v. Grutzmacher, . 33 
 
 Schalk v. Schmidt, . . . 355 
 
 Scheetz's Appeal, . . 199, 317 
 
 Schemerhorn v. Barhydt, . . 274 
 
 Schenck v. Ellingwood, . . 99 
 
 Schenck's Adm'r. v. Cuttrell, . 192 
 
 Schmidt v. Livingston, . . 85 
 
 Schmitheimer v. Eisernan, . 150 
 
 Schnitzel's Appeal, . . . 269 
 
 Schofield v. Redfern, . . . 57 
 
 School v. Kirwin, ... 60 
 
 Dist. No. 3 v. McLoon, 86, 346 
 
 Com. v. Putnam, . . 196
 
 TABLE OF AMERICAN CASES. 
 
 Ixxv 
 
 Schooner William Thomas f. Ellis, 268 
 Schotsmams v. Lanchashire & 
 
 Yorkshire R. R. Co., . . 127 
 
 Schroder v. Schroder, . . 94 
 
 Schryver v. Teller, . . . 270 
 
 Schuyler v. Hoyle, . . .313 
 
 Schwarz v. Wendell, . . .337 
 
 Schwartz v. Stein, . . .128 
 
 Sckenck v. Sckenck's Ex'rs., . 57 
 
 Scott v. Bilgerry, . . .91 
 
 r. Britton, . . .111 
 
 v. Clarkson, . . . 363 
 
 v. Freeland, . .61, 184 
 
 v. Gallagher, . . .153 
 
 v. Gamble, . . .177 
 
 v. Hastings, . . .161 
 
 v. Miller, .... 4 
 
 Scribner v. Allen, . . . 303 
 
 Scrimeger v. Buckhannon, . 302 
 
 Scudder v. Trenton Del. Falls, . 210 
 
 v. Vanarsdale, . . 136 
 
 Seabrook v. Rose, . . .208 
 
 Sears v. Hyer, . . . .231 
 
 v. Dixon, . . . .111 
 
 v. La Force, . . . 269 
 
 v. Shafer, . . .184 
 
 v. Smith, .... 128 
 
 Sebring v. Mersereau, . . 230 
 
 Sechel i>. Mosenthal, ... 78 
 
 Second Church v. Disbrow, . 31 
 
 Second Cong. Soc., &c. v. First 
 
 Cong. Soc., &c., . . . 364 
 Sedgwick v. Cleveland, . . 409 
 Seevers v. Delashmutt, . .153 
 Seguiu v. Maverick, . . .417 
 Seighortner v. Weissenborn, . 354 
 Selby v. Stanley, . . . 128 
 Sellers r. Stalcup, . . .111 
 Sellings v. Bumbgardner, . .316 
 Sellman v. Bovven, . . . 235 
 Semmes r. Mayor of Columbus, 356 
 S. E. Railway v. Knoll, . . 87 
 Sergeant v. Ingersoll, 157, 159, 162 
 
 Seton v. Slade 90 
 
 Severance v. Hilton, . . . 192 
 
 Sewell v. Baxter, ... 33 
 
 Sexton v Wheaton, . 145, 146, 147 
 
 Seymour 0. Darrow, . . .110 
 
 v. Delancy, . 77, 79, 84 
 
 > Hazard, . . . 360 
 
 v. Long Dock Co., . 220 
 
 Shaeffer v. Chambers, . .118 
 
 v. Slade, . . .191 
 
 Shafer r. Davis, . . .168 
 
 Shaftesbury v. Arrowsmith, . 12 
 
 Shannon v. Marselis, . . 270 
 
 Sharkey v. Sharkey, . .111 
 
 Sharp v. Mayor, . . . 177 
 
 r. Morrow, . . 364 
 
 v. Sharp, . . . 334 
 
 Shatt v. Carloss, . . . 288 
 
 Shaw 0. Bunny, ... 61 
 
 0. Chester, . . . 205 
 
 0.. Coble, . . . .286 
 
 0. Coster, . . .206 
 
 0. Thackray, ... 84 
 
 Shays v. Norton, . . .111 
 
 Sheaffer's Appeal, . . 32, 33 
 
 Sheckell v. Hopkins, . . . Ill 
 
 Shed v. Garfield, . . . 335 
 
 Sheen v. French, . . .252 
 
 Sheffield Water Works 0. Yeo- 
 
 mans, ..... 199 
 
 Sheidle 0. Meishlee, . . .173 
 
 Sheldon 0. Bird, . . .113 
 
 0. Rockwell, . . 199 
 
 0. Sheldon, ... 33 
 
 v. Smith, . . .241 
 
 Shepard 0. Shepard, . . . 303 
 
 Shepherd 0. Adams, . . . 270 
 
 0. Bevin, ... 79 
 
 v. McEvers, . 31, 37, 38 
 
 0. Shepherd, . . 78 
 
 Sheppard 0. Starke, . . . 309 
 
 Shermer v. Beale, . . . 192 
 
 Sherry 0. Sansberry, . . . 285 
 
 Sherwood 0. Andrews, . . 217 
 
 0. Sutton, . . 228 
 
 Shields 0. Arndt, . . .211 
 
 0. Barrow, . . 346 402 
 
 0. Commonwealth, . 168 
 
 0. Thomas, . . . 309 
 
 Shine 0. Wilcox, . . . 298 
 
 Shinnie 0. Coil, . . .192 
 
 Shipley v. Ritter, . . . 210 
 
 Shipp 0. Jameson, . . . 221 
 
 0. Swann, . . . 168 
 
 Shirley v. Shirley, . . .44 
 
 Shirras v. Craig, . . 110, 162 
 
 Shitz v. Diffenback, . . .123 
 
 Shobe 0. Carr, . . . .103 
 
 Shoemaker v. Smith, . . 33 
 
 0. Walker, . 51, 233 
 
 Short v. Mercier, . . .2,6 
 
 0. Price, .... 78 
 
 0. Skipwith, . . .221 
 
 Shotwell v. Mott, ; . 65 
 
 0. Murray, . . . 168 
 
 0. Smith, . . .21 
 
 Shotwell's Executor 0. Mott, . 65 
 
 Shoup 0. Cook, . 107 
 
 Shovelton v. Shovelton, . . 31 
 
 Shreve v. Black, . . . 210 
 
 0. Brereton, . . . 107 
 
 Shrewsbury &c., R.R.0. London, 356 
 
 Shricker 0. Field, . . .198 
 
 Shroyer v. Richmond, . . 290 
 
 Shubrick 0. Guerard, . . 208 
 
 Shutters 0. Johnson, . . . 263 
 
 Shults v. Moore, . . . 153
 
 Ixxvi 
 
 TABLE OF AMERICAN CASES. 
 
 Shunk's Appeal, . . 257, 272 
 
 Sidle v. Walters, . ., 33, 34 
 
 Sidmouth v. Sidmouth, . . 33 
 
 Siemon v. Schurck, . ... 33 
 
 Sigler v. The Bank, . . .243 
 
 Sigourney v. Munn, . 151, 244, 246 
 
 Silcox v. Nelson, . ... 310 
 
 Silk v. Prime, . . 243, 254, 257 
 
 Simmons v. North, . . . 168 
 
 v. Tongue, . . . 243 
 
 v. Whitaker, . . 259 
 
 Simms v. Smith, . . . 399 
 
 Simpson v. Ammons, . . . 110 
 
 v. Downs, . . . 397 
 
 v. Feltz, . . .239 
 
 v. Fogo, . . . 335 
 
 v. Hotel Co., . .321 
 
 v, Montgomery, . . 129 
 
 v. Muudee, . . .128 
 
 v. Simpson, ... 45 
 
 v. Watts, . . . 417 
 
 Simonton v. Gray, . . . 233 
 
 Sims v. Aughtery, . . 20, 310 
 
 Sinclair v. Jackson, . . 57, 58 
 
 Singer v. Troutman, . . . 268 
 
 Singleton v. Gayle, ... 20 
 
 Sinnickson v. Bruere, . . 386 
 
 Siter v. Clanachan, . . . 136 
 
 & Co. v. McClanachan, 162, 163 
 
 Sites v. Keller, .... 86 
 
 Sitler v. Walker, . . .242 
 
 Skidmore v. Romaine, . . 263 
 
 Skilbeck v. Hilton, . . .191 
 
 Skinner v. Daily, . . . 304 
 
 v. Drayton, . 107, 240, 241 
 
 v. Deming, . . . 198 
 
 v. Judson, . . 3, 4, 5 
 
 v. Matter of, . .231 
 
 v. Miller, . . .113 
 
 v. Smith, . . .115 
 
 v. White, . . 107, 174 
 
 Shipwith Ex'r. v. Cunningham, 28 
 
 Skrine v. Simmons, . . 176, 303 
 
 Slack v. Walcott, ... . . 406 
 
 Slade v. Street, . . . .248 
 
 Slason v. Wright, . . . 403 
 
 Slater v. Maxwell, . . .347 
 
 Slaughter v. Harris, ... 77 
 
 v. Trndle, ... 90 
 
 Sledds v. Carey, ... 96 
 
 Slee v. Bloom, . . . .227 
 
 v. Manhattan Co., Ill, 115, 389 
 
 Slemmer's Appeal, . . . 309 
 
 Sloan v. Little, .... 10 
 
 v. Moore, . . .243 
 
 v. Whiteman, . . . 416 
 
 Slocum v. Catlin, . . .Ill 
 
 v. Marshall, . 28, 33, 184 
 
 v. Slocum, . . .138 
 
 Slosson v. Beadle, . . . 107 
 
 Slowey v. McMurray, . Ill, 112 
 Small v. Boudinot, . . . 303 
 v. Owings, . . . 363 
 Smallcomb's Case, . . . 175 
 Smallwood v. Lewin, . . 153 
 Smedbury v. Mark, . . . 360 
 Smith v. Babcock, . . 177,346 
 v. Bailey, . . .121 
 
 v. Bangs, . . .211 
 
 v. Bank, .... 210 
 v. Bartholomew, . . 320 
 v. Bowen, ... 30 
 v. Brittain, . . . 230 
 v. Burnham, . . . 305 
 v. Clark, . . . 303, 363 
 v. Cummings, . . 211, 356 
 v. Elliott, . . . 183 
 v. Etches, . . . 313 
 Ex parte, . . .282 
 
 v. Fisher, . . . 344 
 v. Fly, . . . .91 
 v. Hurst, .... 31 
 v. Jackson, . . 233, 246 
 v. Jewett, . . . 109 
 v. Jones, .... 246 
 v. Kane, .... 48 
 v. Kay, . . 183, 303, 363 
 v. Kincaid, . . . 363 
 v. Kniskern, ... 94 
 v. Kornegay, . . .314 
 v. Lasher, . . 10, 308 
 v. Levaux, . . . 221 
 v. Lockwood, . . . 211 
 v. Lowe, .... 243 
 v. McConnell, . . .199 
 v. McCrary, . . .136 
 v. McDougal, . . . 168 
 v. McVeigh, ... 86 
 v. Manning Ex'rs., . .113 
 v. Marks, . . . 224 
 
 v. Matthews, . . 28, 29 
 v. Moore, . . 103, 114 
 
 v. Mules, . . . .243 
 v. Pilkington, . . .118 
 v. Pincombe, . . . 313 
 v. Pettingill, . . . 210 
 v. Poyas, . . . 208 
 
 v. Ramsay, . . 33, 246 
 v. Richards, . . . 177 
 v. Robertson, . . .177 
 v. Smith, 33, 56, 86, 101, 110, 
 114, 115, 117, 192, 230, 231, 
 302, 309, 320 
 
 v. Tarlton, . . .246 
 v. Trenton Falls Co., . 309 
 v. Turrenture, . . .168 
 v. Underdunck, . . 86 
 v. United States, . . 268 
 v. Walker, . . .168 
 v. Wainwright, . . 222
 
 TABLE OF AMERICAN CASES. 
 
 Ixxvii 
 
 Smith v. Warr. . 
 
 v. Woodruff. . 
 Smithurst r. Edmonds, 
 Snead r. McCoulI, 
 Sneed v. Atberton, 
 
 136 
 217 
 110 
 346 
 233 
 
 Snelgrove v. Snelgrove, 93, 94, 96, 162 
 Snelling v. Boyd. . . .317 
 Snelson i\ Franklin. . . . 179 
 Snodgrass's Appeal, . . . 243 
 Snowhill v. Snowhill, 33, 144, 285 
 Snyder v. Griswold, . . .Ill 
 Soames r. Edge, ... 77 
 Society for Propagation of Gospel 
 
 v. Hartland, . . . 312, 320 
 Sohier r. Williams, . . 84. 316 
 Soles v. Hickman, ... 77 
 Solms v. McCulloch, . . .153 
 Soltau v. De Held, . . .211 
 Somerset (Duke of) v. Cookson, 77 
 Sopwith v. Maughan, . . 96 
 Sorg v. German, &c., . . 364 
 
 Southard v. Cushing, . . 364 
 
 r. Morris Canal, . 210 
 
 v. Russell, . . .417 
 Southeast R. R. Co. v. Brogden, 221 
 Southeastern R. R. Co. v. Sub- 
 Telegraph Co., . . .309 
 Southwestern R. R. v. Thoma- 
 
 son, 252 
 
 Southern Life Ins., &c., Co. v. 
 
 Cole, . . . . 82, 88 
 Southgate v. Montgomery, . 198 
 South worth v. Smith, . . 233 
 Souza v. Belcher, . . . 334 
 Souzer r. De Meyer. . . . 339 
 Spalding v. Conzelman, . . 86 
 Sparhawk v. Buell, . . .287 
 Spaulding v. Alexander, . . 88 
 Speakman v. Forepaugh, . . 84 
 Speed's Kx'r. v. Nelson's Ex'r., . 254 
 Speer c. Evans, . . . 153 
 
 -. Mel'art, . . .102 
 r. Skinner, . . .110 
 r. Speer, . . . .230 
 Speights v. Peters. . . 243, 352 
 Speiglemyer v. Crawford, . . 177 
 Spence v. Duren, . . 178, 303 
 v. Whittaker, . . 177 
 Spencer v Spencer, ... 58 
 Sperry's Estate, . . . 243 
 
 Spickernell r. Hotham, . . 258 
 Spiller r. Spiller, . . .121 
 Spirey v. Jenkins. . . . 322 
 Spofford v. Manning, . . 333, 335 
 r. Weston, . . . 153 
 Spooner r. McConnell, . 208,211 
 Spotswood v. Pendleton. . . 285 
 Spottswood r. Dandredge, . . 208 
 Spread r. Morgan, . . 96, 97 
 Spring r. Pride. . . .184 
 
 Spring v. So. Car. Ins. Co., . 389 
 
 Springle v. Shields, ... 91 
 
 Sproule v. Samuel, . . . 364 
 
 St. Felix v. Rankin, . . . 233 
 
 St. Helen Smelting Co. v. Tipping, 211 
 
 St. John v. Benedict, . 77, 84 
 
 St. Mary's Church v. Stockton, . 84 
 
 Stables, Re, .... 287 
 
 Stackhouse v. Countess of Jersey, 162 
 
 Stacy v. Pearson & Bobbits, . 20 
 
 Stafford v. Bartholomew, . . 77 
 
 v. Brown, . . . 303 
 
 v. Bryan, . . .21 
 
 v. Mott, . . . 389 
 
 v. Van Rensaelaer, . 128 
 
 Stagg v. Jackson, . . 136, 254 
 
 Staines v. Shore, . . . 177 
 
 Stainton v. Carron Co., . . 301 
 
 v. Cbadwick, . . 9, 17 
 
 Stallings v. Stallings, . . 230 
 
 Stamps v. Birmingham, . . 344 
 
 Stanard v. Rogers, . . . 198 
 
 Stanley . Brennen, ... 33 
 
 v. Stocks, . . . 270 
 
 Stapilton v. Stapilton, . . 188 
 
 Stapleton v. Langstaff, . . 285 
 
 Stark v. Wood, .... 356 
 
 State v. McGowen, ... 65 
 
 of Mississippi v. Johnson, 
 
 President, . . .195 
 v. Northern Central Rail- 
 way Co., . . . 196 
 v. Paup, . . . .168 
 Bank v . Edwards, . . 363 
 v. March, . .61 
 
 v. Titus, . . . 270 
 v. Young, . . 335 
 Stearns v. Hubbard, ... 86 
 v. Page, . .337, 339 
 Stedwell v. Anderson, . . 168 
 Steedman v. Weeks, . . 230, 231 
 Steel v. Steel, . . . .111 
 Steele v. White, . . .188 
 
 Steere v. Steere, . . 28, 33 
 Steinberger's Trus. v. Potter, . 42 
 Steiger v. Hillen, . . .235 
 Stephens v. Cady, . . . 216 
 v. Stephens, . . 94 
 v. Terrell, . . .346 
 Stephenson v. Haines, . .111 
 v. Traveners, 258, 260, 268, 
 270 
 
 Sterling v. Brightbill, . . 272 
 
 Sterne v. Beck, . . . .107 
 
 Sterry v. Arden, . . 101, 102 
 
 Stevens v. Beekman, . .210 
 
 v. Cooper, . . .270 
 
 v. Dewev, . . . 417 
 
 r. Gregg, . . . 261 
 
 v. Post, . . .363
 
 Ixxviii 
 
 TABLE OF AMERICAN CASES. 
 
 Stevens v. Rutland & Burlington 
 
 R. R., 321 
 
 v. Smith, . . 51, 233 
 
 v. Wheeler, ... 86 
 
 v. Yeatman, . . . 243 
 
 Stewart v. Brown, ... 33 
 
 v. Crosby, . . ~ . 110 
 
 v. Drasha, ... 3 
 
 v. Heard, . . . 233 
 
 v. Ives, . . .128 
 
 v. Ludwick, . . 191 
 
 v. McMinn, ... 61 
 
 v. Stone, ... 20 
 
 v. Turner, . . . 379 
 
 v. Winters, . . . 207 
 
 Stiles v. Brock, . . . .172 
 
 Stillman v. Stillman, . . 270 
 
 Stimson v. Lewis, . . . 320 
 
 Stires v. Stires, .... 274 
 
 Stocker v. Brockelbank, . . 239 
 
 v. Wedderburne, . . 207 
 
 Stocks v. Dobson, . . 53 
 
 Stockton v. Ford, . . .184 
 
 Stoddart v. Tuck, . . .86 
 
 Sto3ver v. Stoever, . . .111 
 
 Stokes v. Knarr, . . .198 
 
 v. Landgraff, . . .217 
 
 Stol worthy v. Sancroft, . . 184 
 
 Stone v. Anderson, . . . 309 
 
 v. Godfrey, . . .189 
 
 v. Hale, . . . .168 
 
 v. Moore, . . . 333 
 
 Stoner v. Zimmerman, . . 136 
 
 Stoney v. Shaltz, . . . 270 
 
 Stoolfoos v. Jenkins, . 176 
 
 Storm v. Maun, .... 208 
 
 Storms v. Storms, . . . 269 
 
 Story v. Conger, . . . 168 
 
 v. Livingston, . . 312, 383 
 
 v. Moon, . . . .243 
 
 v. Norwich and Worcester, 192 
 
 Story's Ex'rs. v. Holcombe, . 215 
 
 Stouffer v. Machen, . . . 363 
 
 Stoutenberg v. Thompkins, 77, 82 
 
 Stoutenburgh v. Peck, . 196, 356 
 
 Stovall v. N. Bank of Miss., . 336 
 
 Stover v. Bounds, . . 111,113 
 
 v. Eycleshimer, . . 54 
 
 Stow v. Russell,. ... 88 
 
 Stowe v. Thomas, . . .216 
 
 Strange v. Bell, . . . .202 
 
 v. Watson, . . . 309 
 
 Strathmore (Countess of) v. Bowes, 180 
 
 Straughan v. Wright, . . 230 
 
 Streatfield v. Streatfield, . 92, 94 
 
 Streator v. Jones, . . .Ill 
 
 Streeper v. Williams, . . 107 
 
 Strongs. Blanchard, . . 118 
 
 v. Stewart, . . .111 
 
 Stroughill v. Anstey, . . 157 
 
 Stuart v. Bute, .... 282 
 
 v. Carson, . . . 261 
 
 v. Coalter, . . 230 
 
 v. Kissam, . . 263, 313 
 
 Stuart's Heirs v. Coalter, . . 310 
 
 Stubbs v. Burwell, ... 23 
 
 Stump v. Findlay, . . 93, 97 
 
 v. Gaby,' ... 61 
 
 v. Rogers, . . . 270 
 
 Sturges v. Gary, . . .270 
 
 v. Longworth, 313, 324, 418 
 
 Sturgis v. Champneys, . . 47 
 
 Sturtevant v. Goode, . 221,224 
 
 Stuyvesant v. Hale, ... 37 
 
 v. Hall, . . .153 
 
 v. Hone, . . . 270 
 
 v. Peckham, . . 6 
 
 Sngden v. Crossland, . . 57 
 
 Sullivan v. Blackwell, . . 184 
 
 v. Ferguson, . . 128 
 
 v. Tuck, . . .77 
 
 v. Winthrop, . . 103 
 
 Summers v. Roos, . . .110 
 
 Sumner v. Hampston, . 233, 246 
 
 v. Marcy, . . .198 
 
 v. Rhodes, . . . 153 
 
 Surgett v. Byers, . . .174 
 
 Button, &c., Co. v. Kitchens, . 347 
 
 v. Wilders, ... 61 
 
 Suydam v. Beals, . . . 198 
 
 v. Northwest Ins. Co., . 303 
 
 Swabey v. Sutton, ... 9 
 
 Swaisland v. Dearsley, . . 85 
 
 Swan v. Dent, . . . 317,346 
 
 Swartzer v. Gillet, . . .175 
 
 Swayne v. Lyon, ... 84 
 
 Swayze v. Swayze, . . 302, 310 
 
 Sweet v. Benning, . . . 216 
 
 v. Mitchell, . . .111 
 
 v. Parker, . . 20, 111 
 
 v. Sweet, . . .283 
 
 Sweeting v. Sweeting, . . 50 
 
 Sweezy v. Thayer, . . . 285 
 
 Swift v. Dean, .... 21 
 
 v. Eckford, . . .310 
 
 v. Swift, . . . 283, 356 
 
 Swinburn v. Svvinburn, . . 33 
 
 Swineborne v. Nelson, . . 17 
 
 Synnot v. Simpson, ... ^1 
 
 Sypher v. Mctlenry, ... 61 
 
 Tabb v. Archer, . . . 288 
 
 Taber . Hamlin, . . .111 
 
 Taggert v. Bolden, . . . 363 
 
 Tainter v. Clark, ... 65 
 
 Talbot v. McGee, . . .402 
 
 v. Pierce, . . 243, 246 
 
 v. Scott, .... 354 
 
 Talley v. Starke, . . . 285 
 
 Tallmadge v. Lovett, . . . 335
 
 TABLE OF AMERICAN CASES. 
 
 Ixxix 
 
 Tallman v. Woods, . \ . 40 
 
 Talmage v. Pell, . . .18 
 
 Tambro v. Gamble, . . . 251 
 
 Tankcrsley v. Anderson, . . 270 
 
 Tarbell v. Tarbell, ... 78 
 
 Tarleton v. Vietes, ... 17 
 
 Tassell v. Smith, . . .163 
 
 Tassey v. Church, . . . 240 
 
 Tatham v. Lewis, . . . 392 
 
 Tatum v. Tatum, . . . 269 
 
 Tayloe v. Mer. Fire Ins. Co., . 83 
 
 Taylor r. Benham, . 42, 136, 138 
 
 v. Galloway, ... 37 
 
 v. Heriot, . . .270 
 
 v. James, . 33, 78, 101 
 
 v. Luther, 10, 111, 339, 344 
 
 v. Manners, . . .106 
 
 v. Maris, . . . .270 
 
 v. Meads, ... 46 
 
 v. Moore, . . . 364 
 
 v. Portington, . . 77 
 
 v. Sandiford, . . . 107 
 
 v. Savage, . . . 269 
 
 v. Taylor, 33, 101, 136, 138, 
 
 184, 217 
 
 v. Titus, . . . .402 
 
 Adm'r. v. Nicolson, . 192 
 
 Taymon v. Mitchell, . . .177 
 
 Tazewell v. Smith, . . 136, 137 
 
 Teaffi;. Hewitt, . . . 375,399 
 
 Teas's Appeal, .... 263 
 
 Tebbetts v. Tilden, ... 33 
 
 Telfair v. Stead, . . .316 
 
 Tenny v. State Bank, . . . 331 
 
 Terrill v. Craig, . . . .302 
 
 Teviss' Rep. v. Richardson's Heirs, 48 
 
 Thayer v. Lane, . . . 246, 335 
 
 v. Mann, . . . .110 
 
 Thibaut v. Canova, . . .211 
 
 Thigpen v. Price, . . .268 
 
 Thomas v. Doub, . . . 346 
 
 v. Ellmaker, . 239, 309 
 
 v. Grand Gulf Bank, . 153 
 
 v. Hearn, . . . 270 
 
 f. Horn, . . . 196 
 
 v. James, . . . 210 
 
 v. Kelsey, . . .110 
 
 v. McConnack, . .111 
 
 v. Phillips, . . .198 
 
 v. Rawlings, . .417 
 
 v. Roberts, . . .283 
 
 v. Sheppard, . . 183 
 
 v. Thomas, . . " 261, 281 
 
 v. Wood, . . .136 
 
 Thomason v. Smithson, . . 309 
 
 Thomasson v. Kennedy, . . 377 
 
 Thompkins v. Hyatt, ... 87 
 
 v. Mitchell, . . 128 
 
 Thompson v. Adams, . . . 269 
 
 v. Berry, . . .198 
 
 Thompson v. Bostwick, . . 268 
 v. Brown, . 252, 258, 287 
 v. Diffenderfer, . .363 
 v. Dulles, ... 84 
 v. Engle, . . .12 
 v. Edwards, . . 399 
 v. Fisher, . . .228 
 v. Gossitt, . . 183 
 
 v. Goulding, . . 416 
 v. Hardman, . . 231 
 v. Hudson, . .107 
 v. Jackson, 174, 176, 303 
 v. Lee, . , . .177 
 v. McDonald, . .317 
 v. Morrow, . . 233 
 v. Murray, 233, 270, 272 
 v. Newlin, . . 335 
 
 v. Patton, . . .Ill 
 v. Thompson, . 38, 233 
 v. Todd, ... 84 
 v. Whitmore, . . 169 
 Thompsonville v. Osgood, . . 168 
 Thomson v. Ebbets, . . .206 
 v. Palmer, . . .269 
 Thorn v. Coles, . . . .138 
 v. Halsey, . . . 360 
 Thornborough v. Baker, . 110, 111 
 Thornton v. Hightower, . . 320 
 v. Knox's Ex'rs., . . 128 
 Thorp v. Pettit, .... 82 
 Thorpe v. Jackson, . . . 172 
 Thruston v. Minke, . . . 230 
 Thurman v. Shelton, . . 302, 310 
 v. Burt, . . .182 
 Thynne (Lady) v. Earl of Glen- 
 gall, .... 104 
 Tibbs v. Barker, ... 86 
 v. Morris, . . . .111 
 Tice v. Annin, .... 113 
 Tidd v. Lister, ... 49, 263 
 Tiernan v. Beam, . ... 128 
 v. Hinman, . . . 107 
 v. Roland, 81, 84, 87, 88, 90, 
 91, 96 
 
 v. Thnrman, . . .128 
 Tilford v. Emerson, . . .302 
 Tillett v. Charing Cross Bridge, 77 
 Tillinghast v. Champlin, . . 151 
 Tillson v. Moulton, . . .111 
 Til man v. Searcy, . . .302 
 Tilton v. Hunter, . . .153 
 v. Tilton, . 85, 86, 168 
 
 Timberlake v. Parish, . 94, 95 
 Tindall v. Childress, . . .168 
 v. Harkinson, . . . 177 
 Tingluy v. Cutler, . . .107 
 Tinsley v. Lacy,. . . .216 
 Titus v. Mabee, . . . .196 
 v. Neilson, . . .233 
 Tobey t>. County of Bristol, 77, 192
 
 Ixxx 
 
 TABLE OF AMERICAN CASES. 
 
 Tobias v. Ketchum, ... 94 
 
 Tod v. Baylor, . . . 233, 235 
 
 Todd v. Campbell, . . .111 
 
 v. Gee, .... 91 
 
 v. Moore, .... 61 
 
 v. Taft, .... 88 
 
 Tolson v. Tolson, . . * . 364 
 
 Tombs v. Rock, . . . 263, 276 
 
 Tomlinson v. Claywell, . . 309 
 
 v. Lindley, . 20, 363 
 
 v. Ward, . . .392 
 
 Tompkins v. Ward, . . . 338 
 
 Tone v. Brace, .... 194 
 
 Tong v. Oliver, . . . 196, 356 
 
 Tongue v. Morton, . . . 157 
 
 Topliff v. Vail, . . . .243 
 
 Torill v. Skinner, . . .111 
 
 Torrey v. Bank of Orleans, . 61 
 
 v. Buck, . . . .179 
 
 Towle v. Mack, . . . .61 
 
 v. Pierce, .... 303 
 
 Townend v. Toker, . . . 315 
 
 Towner v. Lane, . . . 244 
 
 Townley v. Sherborne, . . 58 
 
 Townsend v. Auger, . . . 321 
 
 v. Houston, . . 86 
 
 v. Kendall, . . 282 
 
 v. Smith, . . .397 
 
 Townshend v. Duncan, . 303, 304 
 
 v. Mostyn, . . 274 
 
 Tracey v. Herrick, . . . 192 
 
 Tracy, Matter of, ... 292 
 
 Tradesmans' Bank v, Hyat, . 10 
 
 Traip v. Gould. ... 20, 309 
 
 Trapnall v. Byrd's Adm'r., . 305 
 
 Trask v. Donoghue, ... 37 
 
 Travers v. Ross, .... 333 
 
 Travis v. Milne, . . . ' . 301 
 
 v. Waters, . . 400, 406 
 
 Trayner v. Brooks, . . 230 
 
 Tredwell v. Brown, . . . 243 
 
 Tremper v. Barton, . 33,101,102 
 
 Trescott v. King, . . .110 
 
 v. Smyth, . . 312, 319 
 
 Trevor v. McKay, . . .198 
 
 Trotter v. Blocker, ... 40 
 
 v. Erwin, . . .128 
 
 Troup v. Haight, . . .227 
 
 v. Hurlbut, . . .153 
 
 v. Sherwood, . . .371 
 
 Trowbridge v. Harlestoo, . . 272 
 
 Trucks v. Lindsay, . . .111 
 
 Truebody v. Jacobson, . .128 
 
 Trull v. Trull, .... 62 
 
 Truly v. Wanser, . . . 198 
 
 Trustees v. Hossle, . . . 194 
 
 v. Wright, . . .128 
 
 of Baptist Association 
 
 v. Smith, ... 65 
 of Huntington v. Nicoll. 199 
 
 Trustees of Watertown v. Cowen, 364 
 
 Tucker v. Andrews, . . . 180 
 
 v. Barrow, . . .101 
 
 v. Carpenter, . . . 356 
 
 v. Cheshire, . . . 308 
 
 v. Keeler, . . .114 
 
 v. Madden, . . .168 
 
 v. Oxley, . . .243 
 
 v. Tucker, . . . 310 
 
 Tuckley v. Thompson, . .125 
 
 Tufnell v. Constable, . . .106 
 
 Tulk v. Moxhay, . . .152 
 
 Tully v. Harloe, . . . .110 
 
 Tully's Ex'rs. v. Smith, . . 183 
 
 Tunno v. Trezevantj . . . . 243 
 
 Turley v. Young, . . . 320 
 
 Turnbull v. Gadsen, . . .177 
 
 Turner v. Bissell, . . . 239 
 
 v. Burrows, . . . 268 
 
 v. Cameron's Co., . .114 
 
 v. Clay, .... 77 
 
 v. Crebill, . . .157 
 
 v. Dickerson, ... 19 
 
 v. Kerr, . . . .111 
 
 v. Marriott, ... 84 
 
 v. Navigation Co., . . 177 
 
 v. Petigrew, ... 33 
 
 v. Turner, . . 194* 389 
 
 Turnipseed v. Cunningham, . Ill 
 
 Turnpike, &c. v. Barnet, . .210 
 
 Co. v. Allen, . . 226 
 
 Tuttle v. Jackson, . . . 153 
 
 Twyne's Case, . . . .151 
 
 Tyler v. Black, . . . . IV 7 
 
 Tyree v. Williams, ... 84 
 
 Tyrell v. Bank, . . . .184 
 
 v. Morris, . . . 251 
 
 Tyson v. Watts, . . 77, 82 
 
 Uhler v. Hutchinson, . . . 153 
 
 Underbill v. Dennis, . . .282 
 
 v. Van Cortlandt, . 403 
 
 Underwood v. Brockman, . 182, 189 
 
 Union Bank v. Barker, . . 3, 33 
 
 v. Buck, . . .268 
 
 v. Geary, . . 21, 363 
 
 v. Kerr. . . . 205 
 
 Unitarian Soc. v. Woodbury, 28, 33 
 
 United States v. Duncan, . 270, 272 
 
 v. Green, . . 280 
 
 v. Hunter, . . 269 
 
 v. Keokuk, . . 198 
 
 v. Monroe, . . 168 
 
 v. Parrott, . .208 
 
 v. Price, . . 173 
 
 v. Saline Bank, . 3 
 
 v. Samperyac, 416. 417 
 
 r. Stone, . 18 f 
 
 v. Vaughan, . . 53 
 
 v. Wagner, . 2, 314
 
 TABLE OF AMERICAN CASES. 
 
 Ixxxi 
 
 United States Bank v. Lee, . 153 
 Ins. Co v. Shriver, 272 
 Upham v. Brooks, . . . 317 
 TJpshaw v. Upshaw, . . 92, 96 
 Urmey's Ex'rs. v. Woodon, 65, 69 
 Utica Ins. Co. v. Lynch, 57, 308, 344 
 
 Vail v. Foster 268 
 
 Valentine v. Farrington, . . 268 
 
 v. Johnson, . . 268 
 
 Van Alst v. Hunter, . . . 248 
 
 Van Amaringe v. Ellmaker, . 240 
 Vanartsdalen v. Vanartsdalen, . 280 
 
 Van Buren v. Olmstead, . 111,118 
 
 Vanbuskirk v. Ins. Co., . . 53 
 
 Van Cortlandt v. Beekman, . 303 
 
 v. Underbill, . 192 
 
 Vanderhaize v. Hugues, . .111 
 
 Vanderveer v. Stryker, . . 335 
 
 Van Doren v. Robinson, . 81, 86 
 
 Vandoren v. Todds, . . .128 
 
 Van Duyne v. Van Duyne, 31, 92 
 
 Van Epps v. Van Dusen, . 48, 281 
 
 Van Hook v. Whitlock, . 337, 340 
 
 Vanhorn v. Duckworth, . . 334 
 
 Van Home v. Fonda, . . 61 
 Van Houten v. 1st Ref. Dutch Ch. 196 
 
 Van Hbuten's Case, . . . 280 
 
 Van Husen v. Kanouse, . . 110 
 Van Kruen t>. Trenton Manuf. Co. 356 
 
 Vanmeter v. McFadden, . 123, 153 
 
 Vann v. Hargett, . . . 312 
 
 Van Orden v. Durham, . . 268 
 
 Van Pelt v. McGraw, . .114 
 
 Van Reimsdyk v. Kane, . 20, 363 
 
 Vansitttart o. Vansittart, . 45, 283 
 
 Van Valkinburgh v. Watson, . 287 
 
 Vanwinkle v. Curtis, . .211 
 
 Varick v. Smith, . . . 309 
 
 Varnum v. Meserve, . . .121 
 
 Vasser v. Vasser, . . 78,111 
 
 Vattier v. Hind, . . .162 
 
 Vauck v. Edwards, . . 54, 186 
 
 Vaughan v. Deloatch, . . 252 
 
 v. Vanderstegan, 46, 176 
 
 Vaughn v. Johnson, . . . 197 
 
 v. Law, . . .211 
 
 v. Tracy, . . .153 
 Vaux v. Parke, .... 43 
 Veile v. Hoag, .... 268 
 
 Venabe v. Beauchamp, . . 319 
 Venable v. Coffman, ... 69 
 
 Vennum v. Davis, . . . 194 
 
 Verden v. Coleman, . . *. 375 
 
 Verdier v. Verdier, . . . 275 
 
 Vermilye v. Christie, . . 345 
 
 Verplanck v. Gaines, . . 335 
 v. Mer. Ins. Co. of 
 
 N. Y., . . .312 
 
 Vick v. Mayor of Vicksburg, . 230 
 
 Vick v. Troy, &c., ... 79 
 Vidal v. Girard's Ex'rs., . 65, 67 
 Vilas v.Jones, . . . 175, 319 
 Village of Sen. Falls v. Matthews, 356 
 Villard v. Chovin, . . .286 
 Villines v. Norfleet, . . .61 
 Vizonneau v. Pegram, . . 46 
 Vliet v. Lowmason, . . 196, 356 
 Voorhees v. Jones, . . . 239 
 Vose v. Philbrook, . . .323 
 Voyle v. Hughes, . . 53, 80 
 
 W v. B , . . .175 
 
 Wack v. Sorber, . . .86 
 
 Wade v. Amer. Col. Soc., . . 65 
 
 v. Green, . . . 269 
 
 Wager v. Chew, . . .267 
 
 Waggoner v. Speck, ... 86 
 
 Wagstaffe v. Lowerre, . . 40 
 
 Wailes v. Cooper, . . .162 
 
 Wainwright v. Read, . . 90 
 
 Wakefield Bank v. Truesdale, . 268 
 
 Wakeman v. Gillespy. . 196, 356 
 
 v. Grover, . 315, 363 
 
 Wales v. Bogue, ... 33 
 
 Walker v. Armstrong, . . 171 
 
 v. Butz, . . .157 
 
 v. Crowder, . . .287 
 
 Estate, . 261, 263, 275 
 
 v. Gilbert. . . .153 
 
 v. Gregory, . . . 175 
 
 v. Hall, .... 31 
 
 v. Hallett, . . .346 
 
 v. House, . . .243 
 
 v. Laflin, . . .230 
 
 v. Robbins, . . .198 
 
 v. Selfe, . . .211 
 
 v. Shepardson, . .211 
 
 v. Shore, . . .'55 
 
 v. Trott, . . .243 
 
 v. Walker, . . .103 
 
 Wall v. Arrington, . . 85, 168 
 
 v. Cloud, . . . .211 
 
 v. Cockerell, . . .184 
 
 v. Hill, . . . .303 
 
 v. Thompson, . . . 179 
 
 Wallace v. Coston, ... 46 
 
 v. Duffield, ... 33 
 
 v. Duncan, . . . 360 
 
 v. McCollogh, . . 33 
 
 v. McVey, . . .211 
 
 Waller v. Armstead, . . .180 
 
 v. Taylor, . . .310 
 
 Wallingsford v. Wallingsford, . 45 
 
 Wallis v. Freeman, . . . 239 
 
 v. Long, . . . .110 
 
 v. Thornton, ... 58 
 
 Wallwork v. Derby, . . .363 
 
 Wallwyn v. Lee, . . .162 
 
 Walraven v. Lord, ... 28
 
 Ixxxii 
 
 TABLE OF AMERICAN CASES. 
 
 Walrond v. Walrond, . . 78 
 
 Walsh v. Smyth, . . .397 
 
 Walsham v. Stainton, . 6, 310 
 
 Walton v. Cody, . . .121 
 
 v. Walton, . . . 363 
 
 Warabaugh v. Bimer, . . 177 
 
 Waples v. Waples, ... .193 
 
 Ward v. Cooke, . . .110 
 
 v. Grey, .... 31 
 
 v. Hill* .... 376 
 
 v. Seabry, . . . 324 
 
 v. Tyrrell, . . .186 
 
 v. Van Bokkelen, . 196, 356 
 
 Warde v. Warde, . . . 6, 7 
 
 Warden v. Eichbaum, . . 290 
 
 Wardlaw v. Gray, . . .243 
 
 Ware v. Richardson, . . . 363 
 
 Warfield v. Warfield, . . 231 
 
 Waring v. Ayres, ... 77 
 
 v. Cram, . . 246, 356 
 
 v. Suydam, ... 8 
 
 Warley v. Warley, . . 263, 275 
 
 Warner v. Bates, ... 31 
 
 v. Bennett, . . .109 
 
 v. Conant, . . . 198 
 
 v. Daniels, . . 20, 177 
 
 Warren v. Copelin, ... 53 
 
 . Fenn, . . .128 
 
 v. Richmond, . . 151 
 
 v. Sproule, . . . 364 
 
 v. Warren, . . 272, 344 
 
 Warwick v. Queen's College, . 15 
 
 Washburn v. Goodman, . . 246 
 
 Washington R. R. v. Alexandria 
 
 R. R., . . . 61 
 
 v. Tait, . . . 270 
 
 University v. Green, 219 
 
 Wason v. Warering, . . . 188 
 
 Waterlow v. Bacon, . . .194 
 
 Waterman v. Hunt, . . . 243 
 
 Waters v. Groom, ... 61 
 
 v. Howard, . . 77, 88, 95 
 
 v. Lemon, . . . 191 
 
 v. Mynn, . .176, 303 
 
 v. Riley, . . . 268 
 
 v. Tazewell, . . .44 
 
 v. Thorn, . . .61 
 
 v. Travis, . . 87,91 
 
 Watkins v-. Collins, . . .174 
 
 Watney v. Wells, . . .243 
 
 Watson v. Bagaley, . . .31 
 
 v. Bothwell, . . . 248 
 
 v. Cox, . . . 310 
 
 . v. Godwin, . . . 363 
 
 v. Hunter, . . . 208 
 
 v. Mahan, ... 86 
 
 v. Wells, . . 128,157 
 
 Watt v. Watt, . . . .113 
 
 Watts v. Gayle, . . 316, 319 
 
 v. Girdlestone, . . 57 
 
 Watts v. Smith, ... 3 
 
 v. Steele, . . .287 
 v. Waddle, ... 84 
 Waugh v. Carver, . . . 239 
 v. Mitchell, . . .246 
 Wayland v. Tucker, . v . .268 
 Weaver v. Shyrock, . . .172 
 Weaver's Appeal, . . . 101 
 Webb v. Bowman's Ex'rs., 167, 168 
 v. Direc. London & Ports- 
 mouth R. R. Co. . . 84 
 v. Evans, ... 94 
 
 v. Pell, ... 20, 416 
 v. Portland Manufac. Co., 211 
 v. Robinson, ... 48 
 v. Wools, . . .31 
 
 Weber v. Marshall, . . .77 
 Webster v. Maddox, . . .153 
 v. Van Steenbergh, . 151 
 v. Webster, ... 45 
 Weed v. Grant, . . . .194 
 v. Smull, . . 226, 337 
 
 Weir v. Tannehill, ... 31 
 Welch v. Beers, . . .113 
 
 v. Knott, . . .217 
 
 Re, .... 286 
 
 Wellborn v. Tiller, . . .310 
 Welles v. March, . . .241 
 Wellesly v. Wellesly, . 301, 402 
 
 Wellington v. Gale, . . .114 
 v. Maxwell, . . 88 
 v. Moore, . . 233 
 v. Strange, . .310 
 Wells v. Houston, . . .363 
 v. McCall, ... 44 
 v. Millet, .... 84 
 v. Morrow, . . .129 
 v. River Raisin R. R. Co., 334 
 v. Yates, . . .171 
 
 Welsh v. Bayard, ... 86 
 v. Buckins, . . .233 
 v. Usher, . . .123 
 Wemple v. Stewart, . . .168 
 Wendell, Matter of, . . 290, 291 
 v. Van Rensselaer, . 312 
 v. Wadsworth, . . 153 
 Wentworth v. Lloyd, . . 7 
 
 Wesley v. Thomas, . . .168 
 West v. Bank of Rutland, . . 257 
 v. Beanes, . . . 175 
 
 v. Belches, . . .268 
 v. Flanigan, . . .363 
 v. Hall, . . . .346 
 Midland R. R. Company v. 
 
 Nixon, . . .315 
 
 v. Patton, . . .168 
 
 v. Randall, . . .312 
 v. Rouse, . . . .196 
 v. Walker, . . .210 
 v. Williams, . . . 344
 
 TABLE OF AMERICAN CASES. 
 
 Ixxxiii 
 
 Westbrook v. Comstock, . . 281 
 v. Harbeson, . . 85 
 Westerman v. Means, . . 88 
 Western Ins. Co. v. Eagle Fire 
 
 Ins. Co. .... 335 
 
 Western v. McDermott, . .152 
 Reserve Bank v. Stryker, 347 
 R. R. Corporation v. 
 
 Babcock, . . 84, 85 
 
 Stage Co. v. Walker, . 241 
 
 Westervelt v. Hoff, . . .157 
 
 West Jersey R. R. v. Thomas, 192, 196, 
 
 356 
 
 Weston v. Foster, . . . 230 
 
 Wetmore v. Scovill, . .214 
 
 Wetzel v. Sponsler's Ex'trs., . 268 
 
 Weyer v. Tbornburg, . . 243 
 
 Wharl v. Howell, . . .111 
 
 Wheat v. Moss, . . . 356 
 
 Wheatley v. Calhoun, . . 233 
 
 Wheeland v. Swartz, . . .111 
 
 Wheeler v. Bates, . . .117 
 
 v. Clinton Can. Bank, . 310 
 
 v. Smith, ... 65 
 
 Wheelden v. Lowell, . .177 
 
 Whelan v. Whelan, . . .183 
 
 Wheling v. Eichelberger, . . Ill 
 
 Whilden v. Whilden, . . 94 
 
 Whillock v. Hale, . . . 230 
 
 Whipple v. Barnes, . . .110 
 
 v. Dow, . . 287 
 
 v. McClure, . . . 183 
 
 v. Van Rennsselaer, . 364 
 
 Whitbread v. Smith, . . .173 
 
 White v. Banks, . . 267, 269 
 
 v. Booth, . . .211 
 
 v. Brown, . . .118 
 
 v. Bullock, . . . 402 
 
 v. Buloid, . 17, 18, 402 
 
 v. Cox, . . . .179 
 
 v. Crew, . . . 363 
 
 v. Dingley, . . . 107 
 
 v. Dougherty, . . . 243 
 
 v. Fisk, ... 65, 69 
 
 v. Forbes, . . .211 
 
 v. Hall, . . . .310 
 
 v. Hampton, . . .21 
 
 v. Morrison, . . . 347 
 
 v. Parker, . . . 285 
 
 v. Parrish, . . . 243 
 
 v. Port Huron Co., . . 168 
 
 v. Thompson, ... 79 
 
 v. Trotter, . . .191 
 
 w. Turner, . . . 319 
 
 v. Whitney, . . .114 
 
 v. Wiggins, . . . 222 
 
 v. Williams, . . . 128 
 
 v. Yaw, .... 304 
 
 White's Trusts, .... 30 
 
 Whitebread v. Bennett, . . 138 
 
 Whitehead v. Brown, . . 168 
 
 Whitehorn v. Hines, . . 183, 184 
 
 Whitehurst v. Harker, . . 30 
 
 Whitenack, Matter of, . . 292 
 
 Whitesides v. Cannon, . . 46 
 
 v. Darris, ... 48 
 
 v. Greenlee, . 84, 183 
 
 Whitewater &c. Co. v. Comegys, 205 
 
 Whiting v. Bank U. S., . . 416 
 
 v. Barney, ... 6 
 
 v. Beebe, . . . 363 
 
 v. Gould, ... 33 
 
 Whitman v. Lex, ... 65 
 
 v. Robinson, . . 354 
 
 Whitmore v. Turquand, . . 31 
 
 Whitney v. French, . Ill, 114, 241 
 
 v. Mayo, . . 312, 320 
 
 v. Robbins, . . . 344 
 
 t>. Whitney, . . . 310 
 
 Whitridge v. Durkee, . . 268 
 
 v. Parkhurst, . 77, 96 
 
 Whittick v. Kane, . . .111 
 
 Whitton v. Smith, . . .242 
 
 v. Whitton, . . . 230 
 
 Whitworth v. Whyddon, . . 353 
 
 Whyte v. Arthur, . . . 402 
 
 Wickam v. Gattrell, . . .175 
 
 Wickmant?. Robinson, . . 128 
 
 Wicrich v. De Zoya, . . .197 
 
 Wikoff v. Davis, . . . .270 
 
 Wilbanks v. Duncan, . . . 379 
 
 Wilcox v. Davis, . . .303 
 
 v. Mills, . . . .310 
 
 v. Wilkinson,. . . 397 
 
 v. Wileox, . . 263, 275 
 
 Wild v. Gladstone, . . .341 
 
 Wiide v. Fox, .... 86 
 
 v. Jenkins, . . . 227 
 
 Wilder v. Keeler, . 243, 247, 252 
 
 Wilderman v. Baltimore, . . 65 
 
 Wilhelm v. Folmer, ... 33 
 
 v. Lee, . . .117 
 
 v. Wilhelm, . . 231 
 
 Wilkes v. Henry, . . . 342 
 
 v. Rogers, . . . 287 
 
 Wilkin v. Wilkin, . . 230, 309 
 
 Wilkins v. French, . . . 114 
 
 v. Sears, . . .113 
 
 v. Taylor, . . .136 
 
 Wilkinson v. Fowkes, 183, 191, 415 
 
 v. Wilkinson, . . 81 
 
 Willdey v. Webster, . . .363 
 
 Willenborg v. Murphy, . . 363 
 
 Williams v. Ayrault, . . .198 
 
 v. Beard, . . 114, 364 
 
 v. Berry, . . 196, 356 
 
 v. Brown, . . . 153 
 
 v. Chard, . . . 407 
 
 v. Cox, . . 233, 454 
 
 v. Craig, . . .270
 
 Ixxxiv 
 
 TABLE OF AMERICAN CASES. 
 
 Williams v. Fitch, ... 6 
 v. Hall, . . 196, 356 
 v. Harden, . . .20 
 v. Harrington, . . 285 
 v Helme, . . . 270 
 v. Hodgson, . . 240 
 
 v. Hubbard, .. . 335 
 v. Jenkins, . . 354, 355 
 v. Lambe, ...--. . 162 
 v. Lockwood, . . 198 
 v. Martland, . . 364 
 v. Mears, . . .101 
 v. Meeker, . . . 109 
 v. Morten, . % . . 251 
 v. Otey, , . ,156 
 v. Page, . . .314 
 v. Philpot, . . . 363 
 v. Powell, . . .184 
 v. Presb. Soc., 303, 306, 335 
 v. Roberts, . . 128, 198 
 v. Savage Manuf. Co., 16, 227, 
 228, 346 
 
 v. Sexton, . . . 306 
 
 v. Stratton,. . .123 
 
 v. Townsend, . .114 
 
 fc. Warren, . . .192 
 
 v. Washington, . . 272 
 
 v. Weel, . . .310 
 
 v. Wiggand, . . 230 
 
 v. Williams, 16, 29, 65, 360 
 
 v. Young, . . .128 
 
 Williams' Case, . . . 285, 286 
 
 Williamson v. Branch Bank, . 251 
 
 v. Brown, . . 151 
 
 v. Williamson, . 103 
 
 v. Wilson, 241, 243, 246 
 
 Willing v. Peters, . . 136, 137 
 
 Willis v. Greenhill, . . .151 
 
 v. Henderson, . . . 363 
 
 v. Willis, . . . .292 
 
 Wilson v. Allen, . . . 364 
 
 v. Arney, ... 95 
 
 v. City Bank, . . .323 
 
 v. Coles, . . .139 
 
 v. Drumrite, . . .110 
 
 v. Hamilton, . . . 312 
 
 v. Hart, .... 152 
 
 v. Mace, . . 196, 356 
 
 v. Mallett, . 220,221,222 
 
 Matter of, . . .285 
 
 v. Miller, . . .157 
 
 v. Russell, . . .110 
 
 v. Shoenberger, . .Ill 
 
 v. Stolley, . . . 308 
 
 v. Towle, . . .363 
 
 v. Troup, . 110, 113, 121 
 
 v. Wilson, ... 45 
 
 Wilt v. Franklin, ... 37 
 
 Wilton v. Harwood, ... 86 
 
 v. Hill, . . . .45 
 
 Winborn . Gorrell, . . 157, 162 
 Winch v. Birkenhead, &c., R. R. 
 
 Co., 212 
 
 Winchester v. Winchester, . 417 
 Wing v. Cooper, . . .111 
 
 Wingart v. Fry, .... 84 
 Wingate v. Dail, ... 86 
 v. Haywood, . . . 198 
 Wingfield v. Crenshaw, . .211 
 Winn v. Albert, . . 363, 412 
 
 v. Elliott, . . . 233 
 
 Winne v. Reynolds, ... 84 
 Winnipiseogee Lake Co. v. Wors- 
 
 ter, .... 210, 302 
 
 Winnipiseogee Lake Company v. 
 
 Young, 309 
 
 Winship v. Pitts, . . .208 
 Winslow v. Chiffelle, . . .246 
 Winter v. Gerol, . . .61 
 Wintermute v. Snyder, . . 168 
 Winters v. Henderson, . . 270 
 Wise v. Lamb, .... 376 
 Wiselay v. Findlay, . . . 230 
 Wiser v. Blackly, . , 316,399 
 Wisner v. Barnet, . . . 303 
 Wiswall v. McGowan, . . 90 
 Withers v. Yeadon, ... 30 
 Witman v. Lex, .... 69 
 Witmore v. White, ... 86 
 Witter v. Richards, , . - . 243 
 Woddrop v. Price, . . . 243 
 Wolbertw. Harris, . . . 243 
 Wolcott v. Melick, . . .211 
 Wolf v. Corby, .... 33 
 v. Wolf, . . . .334 
 Wollaston v. King, ... 94 
 Wollstonecraft, Matter of, . . 280 
 Womble v. Battle, . . . 128 
 Wood v. Barringer, . . . 302 
 v. Burnham, ... 40 
 v. Chapin, . . . 151 
 v. Clute, . 230 
 
 v. Cone, .... 33 
 v. Gault, . . . .241 
 v. Majoribanks, , . 84 
 v. Patterson, . . . 356 
 v. Shepherd, . . .192 
 v. Sutcliffe, . . .211 
 Woodbury Savings Bank v. In- 
 surance Company, . . . 171 
 Woodcock v. Bennett, 78, 305, 379 
 Woodtolk v. Blount, . . .151 
 Woodgate v. Fleet, ... .33 
 Woodruff*;. Depue, . . .270 
 Woodrum v. Kirkpatrick, . 45, 399 
 Woods v. Bailey, . . .128 
 v. Farmere, . . 37, 153 
 v. Hildebrand, . . 114 
 v. Worrell, . 10, 306, 344 
 v. Wallace, . . .111
 
 TABLE OF AMERICAN CASES. 
 
 Ixxxv 
 
 Woods f. Woods, ... 94 
 
 Woodson v. Palmer, . . . 392 
 
 Woodward v. Schatzell, . . 360 
 
 v. Wood, . . 314, 315 
 
 Woodworth v. Rogers, . . 356 
 
 r. Wilson, . . 317 
 
 Wooldridge v. Wilkins, . . 246 
 
 Woollam v. Hearne, 33, 85, 111, 168, 
 
 v. Ratcliffe, . 
 Woolsey v. Judd, 
 Woolstencroft v. Woolstencroft, 
 
 172 
 217 
 214 
 264 
 
 Wootten v. Burch, . 8, 308, 344 
 
 v. Copeland, . . .230 
 
 Work v. Harper, . . .153 
 
 Works v. Junct. R. R., . . 208 
 
 Wormack v. Rogers, . . .174 
 
 Wormley v. Wormley, . . 156 
 
 Worth v. McAden, ... 37 
 
 Worthington v. Lee, . . 317,333 
 
 Worthy v. Johnson, . . . 310 
 
 Wragg's Rep. v. Comp. Gen., . 128 
 
 Wright v. Arnold, . . .184 
 
 v. Austin, . . . 268 
 
 t>. Brown, ... 46 
 
 v. Crump, . . .268 
 
 v. Cumsty, . . . 239 
 
 v. Dame, . . 128, 303 
 
 v. Delafield, . . .168 
 
 v. Douglas, ... 28 
 
 v. Grist, ... 356 
 
 v. Holbrook, . . . 261 
 
 v. Linn, .... 67 
 
 v. Lukes, . . . 351 
 
 v. Marsh, . . . 230 
 
 c. Meek, .... 408 
 
 v. Snowe, . . . 176 
 
 v. Tatham, ... 25 
 
 v. Trustees Meth. Epis. 
 
 Church, . . 139, 277 
 
 v. Vanderplank, . . 184 
 
 v. Vernon, . . . 413 
 
 v. Wilson, . . 79, 174 
 
 v. Wright, . . 311, 364 
 
 v. Young, ... 90 
 
 Wrigley v. Swainson, . . 180 
 
 Wyatt v. Elam, . . . .153 
 
 Wyche v. Green, ... 79 
 
 Wyckoffr. Sniffen, ... 10 
 
 Wylder v. Crane, . . . 363 
 
 Wyllie v. Ellice, . . . .281 
 
 Wynn v. Wilson, . . , 198 
 
 Wynne v. Tunstall, . . .231 
 
 Wyse v. Smith, . . . .261 
 
 Wythe v. Hennicker, . . . 275 
 
 Yale v. Dederer, ... 46 
 
 Yancey v. Mauck, . . .128 
 
 Yancy v. Fenwick, . . . 303 
 
 v. Green, 85 
 
 Yard v. Patton, . . . .269 
 
 Yaryan v. Shriner, . . . 128 
 
 Yates v. Donaldson, . . . 269 
 
 v. Monroe, . . .314 
 
 v, Tisdale, . . . 203 
 
 Yeates v. Pryor, . . .177 
 
 Yeatman v. Wood, . , . 246 
 
 Yeomans v. Williams, . . 106 
 
 Yonge v. Reynell, . . 267, 268 
 
 . Shepard, . . . 356 
 
 Yordon v. Hess, .... 6 
 
 York v. Gregg, . . . .177 
 
 Young v. Bampass, . . . 179 
 
 v. Bilderback, . .315 
 
 v. Coleman, . . . 309 
 
 v. Colt, .... 9 
 
 Ex parte, . . . 268 
 
 v. Frost, ... 90, 232 
 
 v. Keogh, . . . 285 
 
 v. Lyons, . . 269, 319 
 
 v. Pate, .... 312 
 
 v. Rathbone, ... 84 
 
 v. Wright, ... 84 
 
 v. Young, ... 45 
 
 Youngman v. Elmira R. R., 117, 315 
 
 Zabriskie v. The Jersey City R. 
 
 R.Co., . . 211 
 
 v. Vreeland, . . 196 
 
 Zeigler v. Eckert, . . . 106 
 
 v. Long,. . . . 270 
 
 Zeisweiss v. James, ... 70 
 
 Zeiter v. Bowman, . . . 157 
 
 v. Zeiter, .... 106 
 
 Zentmyer v. Mittower, . .128 
 
 Zinc Co. v. Franklenite Co., 208, 397 
 
 Zuleuta v. Vinent, . . . 356
 
 THE 
 
 DOCTRINE OF EQUITY 
 
 INTRODUCTION. 
 
 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 ex- 
 plained by Lord Chief Justice Hale, the whole judicial 
 authority of the Crown was exercised by the King in 
 person, sitting in his Royal Court, called the Aula or 
 Curia Regis. 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, directed 
 to the sheriff of the county where the injury was alleged 
 to have been committed, containing a summary statement 
 of the cause of complaint, and requiring him to bring the 
 wrongdoer before the proper court of law, there to answer 
 the plaintiff's charge. The use of original writs in per- 
 sonal actions is now abolished. But such a writ was 
 i
 
 Z ADAMS S DOCTRINE OF EQUITY. 
 
 formerly essential to the institution of 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 pre- 
 rogative, and to have been naturally intrusted to the Lord 
 Chancellor as the minister in whose custody the Great 
 Seal was placed. 1 The *manner of its exercise 
 
 I ***"v" v ~jr\ 
 
 J was by another writ, also issuing under the Great 
 Seal, called the writ of subpoena, which was directed to 
 the defendant personally, and commanded him under a 
 penalty to appear to answer such things as were alleged 
 against him, and to abide by the decree which should be 
 made. The principle by which its exercise was regulated 
 appears to have been the one above stated, viz., that of 
 affording an effectual remedy, where the remedy at com- 
 mon law was imperfect, but not, as has been sometimes 
 erroneously supposed, that of creating a right which the 
 common law had denied. 
 
 The existence of this prerogative or equitable jurisdic- 
 tion seems to be in a great decree peculiar to this country, 
 and to pervade the whole system of its judicial polity. 2 
 The Court of Exchequer, established for enforcing pay- 
 ment of debts and duties to the King, and incidentally 
 administering justice to the debtors and accountants 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 juris- 
 diction over matters within their cognisance, having their 
 
 1 Bale's Jurisdiction of H. L. ; King v. Hare, 1 Str. 150 ; 1 Story on Eq., 
 g. 41-49 ; 3 Steph. Black. 407 ; Steph. on Plead. 5. 
 
 2 Mitf. 6, 50, 151.
 
 INTRODUCTION. 6 
 
 own peculiar courts of appeal, 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 jurisdiction, 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 incompetency of the inferior court, and pray- 
 ing a special writ of certiorari to remove the cause into 
 the Court of Chancery. The principal inferior jurisdic- 
 tions in England which have cognisance of equitable cases, 
 are those of the counties Palatine of Lancaster and Dur- 
 ham, 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 equit- 
 able jurisdiction, but these courts are now abolished. 1 
 
 The earliest instances which have been hitherto pub- 
 lished of the exercise *of the prerogative juris- r-% .-, 
 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. 2 
 
 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 suitable 
 one for the plaintiff'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 complainant 
 
 1 Mitf. on Pleading 6, 50, 151; 1 Daniel's Chancery Practice 509; 1 
 Maddock's Chancery Practice 249 ; 1 Equity Draftsman 131 ; 5 Viet. c. 5; 
 ll.Geo. 4 & 1 Wm. 4 c. 70, s. 14. 
 
 2 Calendar of Chancery Proceedings, vols. 1, 2 and 3.
 
 4 ADAMS S DOCTRINE OF EQUITY. 
 
 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 appropriate redress. 
 
 In many cases a special ground is alleged for calling 
 on the Chancellor to exercise a jurisdiction, which would 
 naturally fall within the province of the commoli law 
 Courts. One of the grounds so alleged, and which strongly 
 marks the character of the age, is the difficulty of obtain- 
 ing justice by reason of the wealth and power of the 
 wrongdoer. Thus in one case, it is said that the plaintiff 
 annot have any remedy at law in consequence of the de- 
 fendant being surrounded by many men of his mainte- 
 nance. 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 pur- 
 sue 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 peti- 
 tioner, who had been restrained by injunction from pro- 
 ceeding 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." 1 
 
 The jurisdiction exercised on the ground of poverty or 
 overbearing power has necessarily died with the state of 
 society in which it originated ; but it appears, like the 
 
 1 Goddard v. Ingepenne, 1 Chan. Cal. viii. ; Thomas . Wyse, Id. xiv. ; 
 Bell v. Savage, Id. xir. ; Royal v. Garter, Id. cxxx.
 
 INTRODUCTION. 
 
 present jurisdiction of *the Court, to have been r * .. n 
 
 I /r "v "^m I 
 
 based on the principle of giving an efficacious 
 remedy for a right existing at law, and many instances 
 occur in the records where the ordinary doctrines 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 feoffees in trust ; 
 but many other ordinary equities occur. Thus, for ex- 
 ample, we find a bill seeking to set aside a conveyance 
 which the defendant had obtained by intoxicating the 
 plaintiff; 1 a bill by a tithe-owner to obtain payment for 
 his tithes ; 2 a bill stating that the plaintiff had recovered 
 her land at law, but that the defendant continued vexa- 
 tiously to harass her and seeking to have him restrained ; 3 
 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; 4 a bill against an executor for 
 payment of his testator's debt ; 5 a bill to perpetuate tes- 
 timony; 6 a bill for discovery of title deeds; 7 and a bill 
 for specific performance of a contract. 8 
 
 It must not, however, be supposed that in all the peti- 
 tions to the Chancellor contained in these records the 
 
 1 Stonehouse v. Stanshaw, 1 Ch. Cal. xxix. 
 
 2 Arkenden p. Starkey, Id. xxxv. 
 
 3 Freeman p. Pontrell, Id. xlii. 
 
 4 Cobbethorn p. Williams, Id. li. 
 
 6 Vavasour p. Chadwick, Id. xciii. 
 
 6 Earl of Oxford v. Tyrrell, Id. cxx. 
 
 7 Baker p. Parson, 2 Chan. Cal. 1. 
 
 8 Tyngelden c. Warham, Id. liv.
 
 ADAMS S DOCTRINE OF 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 juris- 
 diction resisted on that ground. Thus, for example, in 
 one of the cases already referred to, the bill, after men- 
 tioning the subtraction of the plaintiff's tithes, complains 
 also that the defendant had violently driven away his 
 sheep, and the defendant, after answering to the former 
 Pi, _ ...-, charge, says with reference *to the latter, "that 
 
 1 XXXlll I 
 
 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 ; neverthe- 
 less, for declaration of the matter to you, my Lord Chan- 
 cellor, the defendant saith that he never took nor drove 
 away any sheep of the said complainant." And in a sub- 
 sequent 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 determined in this Court :" and that other matters 
 in the bill alleged are, in like manner determinable at the 
 common law, by assize of novel disseisin, and by writ of 
 dower : " nevertheless," he goes on to say, " for the truth 
 and plainness of the matter, he denies having done the 
 acts complained of." 1 
 
 Whether this last class of cases were ever properly 
 within the jurisdiction of the Chancellor may admit of 
 some doubt. That they are not so now is unquestionable ; 
 
 1 Arkenden v. Starkey, 1 Ch. Cal. xxxv. ; Harry v. Lyngeyn, Id. xlix.
 
 INTRODUCTION. 7 
 
 and, from the earliest time when such jurisdiction was 
 claimed, down to the time of its final abandonment, we 
 find a perpetual struggle going on against its authority. 1 
 
 The first instance of this opposition occurs in the 13th 
 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 regality as his predecessors 
 had done before him." 2 In four years afterwards (A. D. 
 13934), on a second petition being presented to the same 
 effect, a partial remedy was granting by a statute, which 
 authorized the Chancellor to give costs to the defendant, 
 where writs of subpoena should have been obtained on 
 untrue suggestions. 3 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." 4 In the fourth 
 :i: year of the same reign (A. D. 1402), the Com- p.. . -, 
 inons again 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 distinctly 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 
 done ; but that it was not his intention that they should 
 refrain from so doing in reasonable causes, as had been 
 
 1 Rotuli Parliainentorum ut et Petitiones et Placita in Parliamento, vol. 
 iii. 1377-1411 ; vol. iv. 1413-1436. 
 
 2 Rot. Parl. 266. > Ibid. 323. Ibid. 446.
 
 8 ADAMS'S DOCTRINE OF EQUITY. 
 
 done by his good progenitors." 1 This answer, however, 
 was far from giving satisfaction to the Commons; and, 
 in the third and ninth years of his successor (A.D. 1451 
 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 com- 
 mon law of the realm." 2 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 interfer- 
 ence with the common law were at this time gradually 
 decreasing. The last petitions which we meet with on 
 this subject were presented in the reign of Henry 6, and 
 were couched in the usual terms, praying that the writ 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 ob- 
 served, and that no writ of subpoena should be granted 
 unless the plaintiff gave proper security for costs." 
 
 This is the last time we meet with any petitions hostile 
 to the jurisdiction, and from the tenor of all the remon- 
 strances made, as well as from that of the bills which 
 appeared in the calendar, it seems obvious that the ac- 
 knowledged 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 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- 
 1 3 Rot. Parl. 506. 2 4 Ibid. 84, 156
 
 INTRODUCTION. 9 
 
 plaints of the Commons would surely have been, not that 
 decisions were made by an *irregular authority, pj. -, 
 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 ineffectual. 
 
 The same principle still governs the jurisprudence of 
 the Court. It does not create rights which the common 
 law denies ; but it gives effectual redress for the 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 de- 
 tention or injury, followed by a writ of execution to the 
 sheriff, requiring him to give effect to the judgment ob- 
 tained. If this redress be sufficient there is no jurisdic- 
 tion in equity ; and, in accordance with this principle, 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 assessment may be 
 made by a jury, in the other the possession may be ob- 
 tained by ejectment, and the intermediate rent may be 
 recovered either by assumpsit for use and occupation or
 
 10 ADAMS'S DOCTRINE OF EQUITY. 
 
 by trespass for mesne profits. The manner of redress in 
 Chancery is by a decree against the wrongdoer, compell- 
 ing him specifically to make good his default ; and there- 
 fore 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 crimi- 
 nal proceedings, and in those also which *may 
 J be termed quasi-criminal, such as a mandamus, 
 a quo warranto, or the enforcement of a penalty or for- 
 feiture, there is no jurisdiction in equity (unless conferred 
 by special enactment), either to compel discovery or to 
 afford relief. 1 
 
 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 per- 
 form the decree. 
 
 The Court of Chancery, in enforcing discovery, does 
 not depart from the general policy of the law. It requires 
 a* defendant to discover the truth of the plaintiff's claim, 
 notwithstanding that he is himself the party sued ; but it 
 does not require him to answer questions which on grounds 
 
 1 Story on Plead. 553 ; Re Hertford, 1 Hare 584 ; Attorney-General v. 
 Lucas, 2 Hare 566.
 
 INTRODUCTION. 11 
 
 of general policy he is entitled to resist. In accordance 
 with this principle it is held, first, that no man need dis- 
 cover 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 dis- 
 pute in litigation ; and thirdly, that official persons must 
 not disclose matters of State, the publication of which 
 may be prejudicial to the community. 
 
 Subject to these restrictions, every competent defend- 
 ant in equity must answer on oath as to all facts material to 
 the plaintiff's case. He must answer to all and not to a 
 portion only. And he must answer distinctly, completely, 
 without needless prolixity, and to the best of his infor- 
 mation and belief. He is also bound, if required by the 
 plaintiff, to set forth a list of all documents in his posses- 
 sion or power from which similar discovery can be ob- 
 tained ; and if the possession of such documents and their 
 character as fit subjects of discovery 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 enforce 
 discovery. If the consequent relief *be attain- r * .. n 
 
 J [*XXXVllJ 
 
 able in equity, a prayer to that effect is intro- 
 duced in the bill, which is then termed a bill for relief, of 
 more correctly for discovery and relief. If it be attain- 
 able in a different Court, the mere fact that discovery is 
 requisite will not alter the jurisdiction. The Court of 
 Chancery will compel the discovery, but the relief must
 
 12 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 evi- 
 dence to be used elsewhere, without itself deciding on 
 the result, viz., in suits for a commission to examine wit- 
 nesses abroad, and in suits for the perpetuation of testi- 
 mony where the subject-matter cannot be immediately 
 investigated; and for granting, in aid either of its own 
 proceedings or of a proceeding elsewhere, the peculiar 
 remedy termed an examination de 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 sus- 
 tains 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 con- 
 tested claim be equitable, i. e., triable in equity alone, the 
 decision will follow the analogy of law. The latter maxim, 
 that " he who would have equity must do equity," imports 
 that where a party, not content with his legal remedy, 
 seeks the 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 con- 
 veniently divided under two heads, viz. : 1. Where the 
 Courts of ordinary jurisdiction cannot enforce a right; 
 and 2. Where they cannot administer it.
 
 INTRODUCTION. 13 
 
 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 
 
 ^discharges by matter in pais of contracts r * ...-> 
 n J * I y xxxvmj 
 
 under seal; for relief against penalties and 
 forfeited mortgages; for re-execution or correction of 
 instruments which have been lost or erroneously framed; 
 for setting aside transactions which are illegal or fraudu- 
 lent, or which have been carried on in ignorance or mis- 
 take of material facts ; and for injunction against irrepar- 
 able 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 cesiui que 
 trust. And it is manifest that the trustee, being the ad- 
 mitted 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 cognisable 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 presumption 
 of law ; and secondly, that it be accepted on those terms 
 by the trustee. The consequence of its creation and ac- 
 ceptance is, that the property is subjected 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
 
 14 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 sub- 
 ject 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 owner- 
 ship, is not free from exception. The legal rules of in- 
 terpretation, though uniformly applicable to an executed 
 trust, i. e., a trust of which the scheme has in the outset 
 been completely declared, are not applied with equal 
 stringency in determining the limitations of an executory 
 trust, i. e., a trust where the ultimate object has been 
 alone denoted, with a direction to effectuate that object 
 in some convenient way. The .legal restraints of policy, 
 though generally binding an equitable estate, admit in 
 that respect of two 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 
 p . -. husband, and allowing *such property to be 
 made inalienable ; the other in what is called 
 the wife's equity for a settlement, restraining the hus- 
 band's rights over her equitable chattels real and choses 
 in action until an adequate settlement has been made. 
 And in respect also to the devolution of trusts, there are 
 two exceptions to the general rule ; the one real in their 
 exemption from dower, the other apparent in the attendance 
 of satisfied terms on the inheritance, so that the trust 
 devolves on the real instead of the personal representative. 
 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 own-
 
 INTRODUCTION. 15 
 
 ership, rather than strictly identical with them. The dis- 
 tinction originates in the doctrine that personal property 
 passes at law by mere delivery, which, where an equitable 
 interest is transferred, may not be practicable; and, there- 
 fore, in order to pursue as nearly as possible the analogy 
 of law, it is required that the assignment 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 other- 
 wise with respect to real estate. For real estate passes 
 by title, and not by delivery ; and the character of the 
 grantor's interest, whether legal or equitable, does not 
 affect the terms of his deed. The principle of construc- 
 tive 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 strict- 
 ness merely a right of litigation, and except in the case 
 of negotiable securities, is not capable of transfer at law. 
 But if it be in substance a right of property, it is treated 
 in equity as of that character, and may be transferred by 
 an assignment or agreement to assign, perfected by notice 
 to the party liable. 
 
 The legal ownership of the trustee confers on him at law 
 an absolute dominion, but is considered in equity as sub- 
 servient to the trust ; so that the trustee is bound to use 
 it for those purposes, and those only which were contem- 
 plated 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 
 personal benefit. If he performs 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
 
 16 ADAMS'S DOCTRINE OF EQUITY. 
 
 trust, either to replace the property in its rightful 
 *state, or to account for any benefit which has 
 L J ' accrued ; nor will the mere lapse of time, if unac- 
 companied by knowledge and acquiescence on the part of 
 the cestui que trusty discharge him from this liability. 
 
 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 
 purposes. 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 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 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 management 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 to 
 the jurisdiction of a visitor. In addition to the jurisdic- 
 tion of the Court of Chancery over charities, a special 
 jurisdiction was created by 43 Eliz. c. 4, called the Statute 
 of Charitable Uses, to be exercised by commissioners ap-
 
 INTRODUCTION. 17 
 
 pointed by the Crown. But their jurisdiction has now 
 fallen into disuse. And there is also a summary jurisdic- 
 tion in equity, to be enforced on petition, instead of 
 information or bill, created by 52 Geo. 3, c. 101, com- 
 monly 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 conside- 
 ration, of the discharge by matter in pais of contracts 
 under seal, and of relief against penalties and forfeited 
 mortgages. 
 
 The equity to compel specific performance of a contract 
 arises where a contract binding at law has been infringed, 
 and the remedy *at law by damages is inadequate, ps. ,.-, 
 And in order to originate this equity, it is essen- 
 tial that the contract shall have been made for valuable 
 consideration, and that its enforcement in specie be prac- 
 ticable and necessary. 
 
 The first requisite is, that the contract be made for 
 valuable consideration. For so long as a promise rest in 
 fieri, there is not, in the absence of such consideration, 
 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 demarcation, where the 
 contract ceases to be an executory agreement and be- 
 comes a perfected trust in equity, is often difficult to dis- 
 tinguish. But the principle itself is sufficiently clear. 
 If the donor has perfected his gift in the way which he 
 intended, so that there is nothing left for him to do, and 
 nothing which he has authority to countermand, the 
 
 donee's right is enforceable as a perfected trust, and the 
 2
 
 18 ADAMS'S DOCTRINE OF EQUITY. 
 
 consideration is immaterial. If, on the contrary, the 
 transaction is incomplete, and its final completion is asked 
 in equity, the court will not interpose to perfect the lia- 
 bility 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 
 follow where enforcement is sought against the defendant, 
 but a corresponding performance by the other party 
 cannot be secured. 
 
 The third requisite is, that the enforcement in specie 
 be necessary as well as practicable; and 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 consideration; 
 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 mistake, or 
 even on the mere ground that the contract is a hard one, 
 and that its enforcement in specie would press heavily on 
 him. 
 
 In applying this equity to contracts relating to real 
 estate,. there are some modifications of legal rules which 
 PJ. ,..-, at first sight appear inconsistent * with them, and 
 repugnant to the maxim, that "equity follows 
 the law." The modifications here referred to are those of 
 enforcing parol contracts relating to land, on the ground 
 that they have been already performed in part; of allow- 
 ing time to make out a title beyond the day which the
 
 INTRODUCTION. 19 
 
 contract specifies ; and of allowing a conveyance with 
 compensation for defects. The wisdom of permitting any 
 deviation is a subject admitting of much doubt. But 
 the particular doctrines now in question are fully estab- 
 lished by the course of precedent, and may perhaps be 
 considered, not so much deviation from the rule of law, 
 as subordinate equities, or developments from the ori- 
 ginal doctrine, that specific performance 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 enforc- 
 ing parol contracts relating to land, on the ground that 
 they have been already performed in part. A parol con- 
 tract in relation to land is made incapable of enforcement 
 by the Statute of Frauds; and, so long as the contract re- 
 mains 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 con- 
 struction of equity ; for if it is one of which specific per- 
 formance would be decreed, it is itself in some sort an 
 equitable title ; and if the parties have clothed that title 
 with possession, or have otherwise acted on it as an exist- 
 ing ownership, they are held to have perfected their 
 agreement in equity, and if the terms of their parol con- 
 tract can be proved, may be decreed to perfect it by a 
 conveyance at law 
 
 The second equity is that of allowing time to make out 
 a title beyond the day which the contract specifies. The 
 rule on this point is expressed by the maxim, that " time 
 is not of the essence of the contract in equity;" and it 
 seems, like that of part performance, to be founded on the 
 principle, that the contract itself is in the nature of a title, 
 so that if a substantial ownership exists, though the title
 
 20 ADAMS'S DOCTRINE OF EQUITY. 
 
 be not fully cleared on the appointed day, specific per- 
 formance may be properly decreed. 
 
 The third equity is that of allowing a conveyance with 
 compensation for d'efects, where a contract has been made 
 for sale of an estate, which cannot be literally performed 
 in toto, whether by reason of an unexpected failure in the 
 title to' part, of inaccuracy in the terms of description, or 
 PJ. y.-i of diminution in value by a liability to a *charge. 
 The principle of this equity appears to be, that 
 where the property contracted for can be substantially 
 transferred, it is against conscience to take advantage of 
 small circumstances of variation. The equity for perform- 
 ance with compensation 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 compensation, and not a mere matter of arbi- 
 trary 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, detained 
 from the legitimate owner, by directing them to be de- 
 livered up or secured. 
 
 The equities of election and meritorious or imperfect 
 consideration are closely connected with the principle 
 which has been already stated of enforcing those contracts 
 and those only, which are based on valuable consideration. 
 
 The first of these equities is that of election. The 
 equity to enforce contracts made for value is extended by 
 parity of reasoning to cases where a benefit has been con- 
 ferred as the consideration for an act, and knowingly ac- 
 cepted, although the party so accepting it may not be
 
 INTRODUCTION. 21 
 
 bound by an actual contract, or by a condition of perform- 
 ance annexed to the gift. The equity of election is anal- 
 ogous 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 effected by the donee's consent; 
 e. g., where a testator leaves a portion of his property to 
 A., and by the same will disposes of property belonging 
 to A. In this case there is no contract by A. to relinquish 
 his own property, nor is there any 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 in- 
 terests ; and he must therefore 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 origi- i-* r n 
 nates in the distinction between the three classes 
 of consideration, on which promises may be based, viz., 
 valuable consideration, the performance of a moral duty, 
 and mere voluntary bounty. The first of these classes 
 alone entitles the promisee to enforce his claim against an 
 unwilling promisor ; the third is for all legal purposes a 
 mere nullity until actual performance of the promise. The 
 second or intermediate class is termed meritorious, and is 
 confined to the three duties, of charity, of payment of 
 creditors, and of maintaining a wife and children, or per- 
 sons towards whom the party promising has placed him- 
 self in loco parentis. This class of consideration is not dis-
 
 22 ADAMS'S DOCTRINE OF EQUITY. 
 
 tinguished at law from mere voluntary bounty, but is to 
 a modified extent recognised 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 meritorious 
 consideration be intended, but imperfectly executed, and 
 the intention remain unaltered at the death of the donor, 
 there is an equity to enforce the intended gift against per- 
 sons claiming by operation of law, without an equally meri- 
 torious claim. The principal applications of this equity 
 are, in supplying surrenders of copyhold against the heir, 
 and in supporting defective executions of powers, when 
 the defect is formal, against the remainderman. Another 
 class of cases to which the doctrine of meritorious con- 
 sideration applies, are those where a man, subject to a 
 moral duty, does an act which may have reasonably been 
 meant in satisfaction of that duty, and is therefore pre- 
 sumed to have so intended it. In accordance with this 
 principle, acts which, as between strangers, would bear 
 one construction, may be construed differently where me- 
 ritorious consideration exists ; e.g., a purchase made by one 
 person in the name of another may be construed as an ad- 
 vancement in favor of a child, instead of a resulting trust 
 for the purchaser. A legacy may be construed a provi- 
 sion instead of mere bounty, and may, as such, bear in- 
 terest from the testator's death. 
 
 The equities for giving effect to discharges by matter 
 in pais of contracts under seal, and for relief against pen- 
 alties and forfeited mortgages, are the converse to the 
 equity for specific performance. The first of these equi- 
 ties originates in the rule of law, that an agreement under 
 seal, technically termed an agreement by specialty, can
 
 INTRODUCTION. 23 
 
 only *be avoided by another specialty, and that it r* i n 
 is unaffected by matter in pais which would ope- 
 rate as a discharge of a simple contract. In equity, the 
 rule is otherwise ; for the form of agreement is immate- 
 rial, and if the act done is in substance a discharge, it 
 will warrant a decree for the execution of a release, or 
 for delivery up and cancellation of the specialty. The 
 most ordinary application of this equity is in favor of 
 sureties, where a guarantee has been given under seal, 
 and the creditor, without the surety's consent, has dis- 
 charged or modified the principal's liability. 
 
 The second of these equities originated in the rule of 
 law, that, on breach of a contract secured by penalty, the 
 full penalty might be enforced without regard to the damage 
 sustained. The Court of Chancery, in treating contracts 
 as matter for specific performance, was naturally led to 
 the conclusion that the annexation of a penalty did not 
 alter their character ; and, in accordance with this view, 
 restrained 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 reimbursement of the 
 actual damage sustained. A similar authority is now con- 
 ferred by statute on courts of law, but the equitable juris- 
 diction 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 ques- 
 tionable, and it is now strictly confined to cases where the 
 covenant is for payment of money, so that the damage 
 may be certainly measured by interest. 
 
 The equity for relief against penalties applies most ex- 
 tensively to the case of forfeited mortgages, where a loan 
 has been secured by the transfer of property, with a con-
 
 24 ADAMS'S DOCTRINE OF EQUITY. 
 
 dition 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 bond fide sale, with power to repurchase, there 
 is no equity to interpose. A clause of redemption, how- 
 ever, is primd 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. 
 A partial power to give relief in cases of *mort- 
 -1 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 accounta- 
 ble 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 
 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-
 
 INTRODUCTION. 25 
 
 payment had been taken away, and not replaced by any 
 substitute, it would have been the only one attainable 
 under his security. To remedy this objection, he is 
 allowed, after forfeiture, to file a bill praying foreclosure 
 of the equity to redeem. A new day for payment is then 
 fixed by decree ; and if default be made, the mortgagor's 
 right is destroyed. The right, however, is merely to fore- 
 close the equity, and does not extend to warrant a sale. 
 
 In addition to regular or perfected mortgages, which 
 convey the legal estate to the mortgagee, and specify a 
 day of forfeiture at law, there are other securities of an 
 analogous character, but defective in one or both of these 
 respects. These imperfect securities are seven in number, 
 viz., 1. Mortgages of a trust, or equity of redemption, 
 and equitable mortgages by imperfect conveyance or by 
 contract to convey. In these mortgages the legal owner- 
 ship is not transferred, and the mortgagee therefore cannot 
 obtain possession at law, but is entitled in equity to a re- 
 ceiver of the rents ; 2. Equitable mortgages by deposit 
 of title deeds, unaccompanied by a written contract. 
 Under these mortgages there is the same right to a re- 
 ceiver as in the preceding class ; and there is a doubt 
 whether, 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 remedy p.. , ..-, 
 is confined to perception of rents, and he has 
 no right to foreclosure or sale ; 4. Trust deeds in the 
 nature of mortgage, which are mere conveyances to the 
 creditor on trust to sell and to retain his debt out of the 
 proceeds ; o. The equitable lien of a vendor or purchaser 
 of real estate, where the one has conveyed before pay-
 
 26 ADAMS'S DOCTRINE OF EQUITY. 
 
 ment, or the other has paid before conveyance. In either 
 of these cases the payment or return, as the case may be, 
 of the purchase-money, is secured in equity by an im- 
 plied charge on the land; 6. Equitable fieri facias and 
 elegit, where a judgment is made available against trusts 
 and equities, either by injunction against setting up an 
 outstanding estate in bar of execution at law, by 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 Viet. c. 110, ss. 13, 14, by which a 
 judgment is made a charge in equity, on the debtor's in- 
 terest 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 
 from real to personal estate, and vice versa, so as to in- 
 troduce new laws of devolution and transfer. If, for ex- 
 ample, an imperative trust is created, either for employ-
 
 INTRODUCTION. 27 
 
 ing money in the purchase of land, or for selling land and 
 turning it into money, the money or land, of which a 
 conversion is directed, will be dealt with in equity during 
 the continuance of the trust, and for objects within the 
 scope of the trust, as if the purchase or sale had been 
 actually made. In like manner, if a binding contract be 
 made for *the sale of land, enforceable in equity, p , ...-, 
 such contract, though in fact unexecuted, is con- 
 sidered 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 equi- 
 ties, 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 same modifications, governs, in the absence 
 of a special equity, transfers and charges of the equitable 
 interest. But if legal and equitable titles conflict, or if, 
 in the absence of a legal title, there is a perfect equitable 
 title by conveyance on the one hand, and an imperfect 
 one by contract on the other, a new principle is 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 that this maxim may operate, it is essential
 
 28 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 remains 
 neutral, and the matter is left to be decided at law with- 
 out either relief or discovery in equity. If there be no 
 legal right it cannot be neutral ; and, therefore, acts on 
 the analogy of law, and gives priority to that title which 
 most nearly approximates to a legal one, viz., to an exe- 
 cuted and perfect title in equity, rather than to one which 
 is executory and imperfect. 
 
 PI- ,. -, *The maxim of non-interference between equal 
 equities is the foundation of the doctrine of tack- 
 ing in equity. The cases to which this doctrine applies 
 are those where several encumbrances have been created 
 on an estate, and two or more of them, not immediately 
 successive to each other, have become vested in a single 
 claimant. Under these circumstances the question arises, 
 whether an intermediate claimant may redeem one of such 
 encumbrances, and postpone the other to his own charge, 
 or whether the party holding the two encumbrances may 
 tack or consolidate them, so that the earlier in date can- 
 not be separately redeemed. The doctrine on this point 
 is, that if the double encumbrancer is clothed with a legal
 
 INTRODUCTION. 29 
 
 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, which was advanced ex- 
 pressly or presumptively on the credit of the estate with- 
 out notice of the mesne equity. A similar equity 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 forfeit- 
 ure, redeem one without redeeming both. 
 
 In addition to the equity for performance of a trust or 
 contract where the original transaction and its evidence 
 are unimpeached and clear, there is an equity for re-exe- 
 cution, correction, or rescission, where the instrument 
 evidencing a transaction is destroyed or lost; where, 
 through mistake or accident it has been incorrectly 
 framed ; or where the transaction is vitiated by illegality 
 or fraud, or as having been carried on in ignorance or mis- 
 take of facts material to its operation. These equities, 
 like the equity for performance in specie, are incapable 
 of enforcement by the courts of law, and fall therefore 
 within the province of the Court of Chancery. 
 
 The equity for re-execution and other similar relief 
 arises, not only on wilful destruction or concealment, but 
 also on an accidental destruction or loss, where the miss- 
 ing instrument is such that its non-production would per- 
 petuate a defect of title, or would preclude the plaintiff 
 from recovering at law. Such for instance is a convey- 
 ance or bond, which under the old practice must have 
 been pleaded with profert at law, and a negotiable r#,-i 
 security, which must be produced *at law before ver- 
 dict, because the court cannot otherwise indemnify the 
 defendant against its possible reappearance.
 
 30 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 nullifi- 
 cation, 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 agree- 
 ment which it recites, and exceeds or falls short of. that 
 agreement; and, thirdly, where an instrument is admit- 
 ted 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 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 conformity with this principle that 
 bonds given for payment of a joint and several debt, but 
 drawn up as merely joint, have been reformed in equity, 
 and made joint and several, in conformity with the origi- 
 nal liability ; and that mortgages by husband and wife of 
 the wife's estate, which have limited the equity of re- 
 demption to the husband, have been reformed by restor- 
 ing it to the wife. 
 
 The equity for rescission and cancellation arises where 
 a transaction is vitiated by illegality or fraud, or by reason 
 of its having been carried on in ignorance or mistake of 
 facts material to its operation. And it is exercised for a 
 double purpose ; first, for cancelling executory contracts 
 where such contracts are invalid at law, 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
 
 INTRODUCTION. 31 
 
 lost; and secondly, for setting aside executed convey- 
 ances or other impeachable transactions, where it is neces- 
 sary to place the parties in statu quo. An executed con- 
 veyance, however, cannot generally be set aside on the 
 gronnd of its illegal or immoral character, for it is a maxim 
 that "mpari delicto melior est conditio defendentis" But 
 it is otherwise where the contract remains executory, for 
 its illegality would be admissible as a defence at law, and 
 the decree for cancelling is only an equitable mode of 
 rendering that defence effectual. 
 
 *The ordinary instances of fraud are the procuring 
 contracts to be made, or acts to be done, by means 
 of wilful misrepresentation, either express or implied, and 
 the procuring them to be made or done by persons under 
 duress or incapacity. 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 trustent, or by other persons sustaining a fidu- 
 ciary character from those in regard to whom that char- 
 acter exists. And there is a similar equity, though per- 
 haps less obviously founded on principle, for setting aside 
 bargains made with expectant heirs and reversioners with- 
 out the knowledge of the parent or other ancestor, partly 
 as having been made under the pressure of necessity, but 
 chiefly as being a fraud on the parent or ancestor, who is 
 misled in disposing of his estate. 
 
 The ignorance or mistake which will authorize relief in 
 equity must be an ignorance or mistake of material facts ; 
 as, for example, where an instrument is executed, not by 
 way of releasing or compromising a particular right, but 
 in ignorance or mistake of the facts which originate the 
 right. If the facts are known, but the law is mistaken, 
 the same rule applies in equity as at law, viz., that a mere
 
 32 ADAMS'S DOCTRINE OF EQUITY. 
 
 mistake of law, where there is no fraud or trust, is imma- 
 terial. In addition to the jurisdiction for setting aside 
 contracts on the ground of mistake by the parties, there 
 is a jurisdiction ta 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 instru- 
 ment, 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 element, or where any 
 act not criminal is commenced or threatened, by which 
 any equity would be infringed. The restraint may be 
 either imposed by a final decree, forbidding the act inper- 
 petuum on establishment of the adverse right, or by inter- 
 locutory 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 
 PHV-I commonly issued *in regard to actions at law, and 
 is obtainable as of course within a short period 
 after the commencement of a suit, so as to restrain the pro- 
 ceedings at law until an answer is filed. If the answer 
 show the existence of an equitable question, such ques- 
 tion will be preserved intact until the hearing of the 
 cause, by continuing the injunction, either absolutely or 
 in a modified form, until that time. If at the hearing 
 the decision is with the plaintiff in equity, the injunction
 
 INTRODUCTION. 33 
 
 may be made perpetual. The same jurisdiction 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 person- 
 ally within the jurisdiction of the Court of Chancery. 
 But it does not extend to proceedings in courts which are 
 of equal competency to adjudicate on the equity. 
 
 The relief by injunction against proceedings at law is 
 also applied under a distinct equity on bills of peace and 
 bills of interpleader. A bill of peace is a bill filed for 
 securing an established legal title against the vexatious 
 recurrence of litigation, whether by a numerous class of 
 claimants insisting on the same right, or by an individual 
 reiterating an unsuccessful claim ; and its equity is, that 
 if the right be 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 liability to any of 
 them, and who does not himself claim an interest in the 
 matter. Its equity is, that the conflicting claimants 
 should litigate the matter amongst themselves, without 
 involving the stakeholder in their dispute. 
 
 The injunction against an act commenced or threatened, 
 by which an equity may be infringed, is often used as an 
 auxiliary process in respect of ordinary equities. But 
 there is one class of cases in which the necessity for in- 
 junctive relief constitutes per se an independent equity, 
 viz., that of torts, as a class of civil wrongs, distinct from 
 cases of trust, of contracts, and of fraud. The principle 
 of injunctive relief against a tort is, that wherever dam- 
 age is caused or threatened to property, admitted or 
 
 legally adjudged to be the plaintiff's, by an act of the 
 3
 
 34 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 coni- 
 
 r-vfevn mission or continuance of the wrong. * And though 
 l/lmj 
 
 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 particular acts ; but those in respect of 
 which it is most commonly enforced are waste, destruc- 
 tive trespass, nuisance, infringement of patent right, and 
 infringement of copyright. 
 
 The equities under the second head of our division, 
 viz., where the courts of ordinary jurisdiction cannot ad- 
 minister 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, idiots, and lunatics. 
 
 The jurisdiction over account is exercised in a two-fold 
 form ; first, for compelling an account from an agent or 
 steward, or any person w T hose duty it is, by reason of his 
 character, position, or office, to render an account, and 
 who has failed to do so ; and, secondly, for investigating 
 mutual accounts where items exist on both sides, not 
 constituting mere matters of set-off, but requiring, in 
 order to ascertain the balance, a more complicated ac- 
 count than can practically be taken at law. , 
 
 The equity for severance of co-tenancy and other analo- 
 gous relief, originates in the fact that the co-tenants have 
 a rightful unity of possession, and that its severance can- 
 not be adequately affected at law. It is most frequently
 
 INTRODUCTION. 35 
 
 applied, in effecting partition between co-parceners, joint- 
 tenants, or tenants in common. But its principle extends 
 to suits by a widow against the heir for assignment of 
 dower, and to suits by a tithe-owner against the tithe- 
 payer for relief against subtraction or non-payment of 
 tithes ; for in the one case the heir is rightfully in pos- 
 session of the entirety, and ought himself to make the 
 ji>s ignment; 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 p..,. - 
 interest, but the employment of a common stock 
 in some common undertaking with a view to a common 
 profit. In order to ascertain this common profit, and the 
 share of each individual partner therein, an account must 
 be taken of the business, the assets, and the liabilities. 
 The 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 distributed among the partners, 
 or the deficiency made good by contribution among them, 
 and a receiver appointed in the meantime to manage the 
 business. If, after a partnership has been dissolved by
 
 36 ADAMS'S DOCTRINE OF EQUITY. 
 
 death or bankruptcy, the assets are used by the surviving 
 or solvent partner for the purposes of profit, he is in the 
 same position as any other fiduciary holder of property, 
 using it for his own benefit, and is liable to account to 
 the executors or assignees for the profit which he has 
 made. There is also a special equity in the case of mines 
 and collieries, to deal with them on the footing of a quasi 
 partnership, so that where the co-owner cannot agree on 
 the management, a receiver may be appointed over the 
 whole. 
 
 The equity for administering the assets of a 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 belong to the Eccle- 
 siastical 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 admin- 
 ister, so that the will is drawn within the cognisance of 
 equity, there is an incidental jurisdiction to declare it 
 established, after first directing an issue (devisavit vel non) 
 to try its validity at law. 
 
 Assuming the title of representative to be established, 
 whether that of an executor or devisee, or that of an ad- 
 ministrator or heir there is an equity for administering 
 the assets of a testator or intestate originating in the in- 
 efficiency of the ordinary tribunals. In the exercise of 
 this equity for administration of assets, all such assets as 
 would be recognised at law are termed legal assets, and 
 are administered in conformity with legal rules, by giving 
 priority to debts in order of degree. There are other 
 assets, recognised in equity alone, which are termed 
 equitable assets, and are distributed *among the 
 L -" creditors pari passu, without regard to the quality
 
 INTRODUCTION. 37 
 
 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 exe- 
 cutor himself, who can only obtain complete exoneration 
 by having his accounts passed in chancery. The per- 
 sonalty is secured by payment into court; a receiver of 
 the real estate and of the outstanding personalty is ap- 
 pointed, if the circumstances require it ; and a decree is 
 made for taking the accounts ; all actions by creditors are 
 stayed; advertisements are issued for claimants to come 
 in; and the funds are ultimately distributed by the 
 court, so as to protect the representative from subsequent 
 liability. 
 
 The equity for adjusting liabilities under a 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 be- 
 tween the parties liable. And it is exercised under the 
 three forms of contribution, exoneration, and marshalling. 
 The equities of contribution and exoneration arise where 
 several persons are bound by a common charge, not aris- 
 ing ex delicto, and their order of liability has been acci- 
 dentally deranged. If the liability be joint, he who has 
 paid more than his share is entitled to contribution from 
 the rest. If some are liable in priority to the rest, the 
 parties secondarily liable, if compelled to discharge the 
 claim, are entitled to exoneration. Both these equities 
 are exemplified in the case of suretyship ; the one by the 
 rights of sureties as between themselves ; the other by
 
 38 ADAMS'S DOCTRINE OF EQUITY. 
 
 their rights as against the principal. Their enforcement 
 in equity, instead of at law, is advantageous, because the 
 machinery of equity is in general best fitted for such en- 
 forcement ; and more especially in questions of contribu- 
 tion, because all parties can be united in a single suit, 
 and losses caused by the insolvency of any can be distri- 
 buted 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 claims. Under 
 these circumstances, there is an equity against the debtor 
 PM .-, that the ^accidental resort of the paramount cred- 
 itor 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 sub- 
 stituted to his right, and will be satisfied out of that 
 other fund to the extent to which his own has been ex- 
 hausted. 
 
 The equities of contribution, exoneration, and marshal- 
 ling, are applied, as already noticed, in the administration 
 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 double 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. 39 
 
 .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 patrice, ex- 
 ercised by the Court of Chancery, for protection of any 
 infant residing temporarily or permanently within its 
 jurisdiction. The jurisdiction is called into operation by 
 filing a bill, which constitutes the infant a ward of Court; 
 and such wardship is attended by three principal inci- 
 dents. Firstly, the infant must be educated under the 
 Court's superintendence, which is exercised either by ap- 
 pointment 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. Sec- 
 ondly, the estate of the infant must be managed and 
 applied under the like superintendence, to be exercised 
 either by appointment of a receiver when there are no 
 trustees, or by a general control of the trustees where they 
 already exist, and do not misconduct themselves. And 
 in the exercise of such superintendence, an adequate part 
 
 of the *income will be allowed for maintenance and riM .. n 
 
 Plvii I 
 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 marriage of the infant must be with the sanction of
 
 40 ADAMS'S DOCTRINE OF EQUITY. 
 
 the Court. And such sanction will only be given on 
 evidence 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 twofold ; first, that a special 
 grant is required for its administration, and consequently, 
 that such administration does not belong to the Court of 
 Chancery, but is conferred on the Lord Chancellor person- 
 ally 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 representatives. 
 
 In addition to the prerogative jurisdiction in equity,
 
 INTRODUCTION. 41 
 
 there are other jurisdictions belonging to the Court of 
 Chancery. It is a Court of State, where all public acts 
 of government are sealed and enrolled. It is an officina, 
 just it ice 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 already ^ ...- 
 noticed, and the writs of subpoena and injunction, 
 which are appropriated to the equitable jurisdiction of the 
 Court. It has a common law jurisdiction in what is called 
 the Petty Bag Office, the chief objects of which are, to 
 hold plea on scire facias to repeal letters-patent, on peti- 
 tions of right, monstrans de droit, traverses of office, and 
 the like, and in personal actions where any officer or 
 minister of the Court is a party. 1 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 charitable trusts, or regu- 
 lating their administration, for effectuating conveyances 
 and transfers by incapacitated trustees or mortgagees, 
 for managing property belonging to infants, femes covert, 
 lunatics, and persons of unsound mind, and for a variety 
 of miscellaneous purposes, depending in each instance 
 for their character and extent on the language of the 
 statute in which they originate. 2 It has a very import- 
 ant jurisdiction, also of statutory origin, under the law 
 of bankruptcy, for administering the property of an insol- 
 vent trader in his lifetime, in order to the satisfaction of 
 his creditors pan passu, and for discharging the debtor, 
 after full surrender of his property and conformity with 
 the requisitions of the law, from further liability for his 
 
 1 4 Inst. 79 ; Rex v. Hare, 1 Str. 150; 3 Steph. PL 408-410; 1 Madd. 
 C. P. book i. 2 2 Dan. C. P. Ch. 40.
 
 42 ADAMS'S DOCTRINE OF EQUITY. 
 
 antecedent debts. 1 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 claims for costs. 2 The consideration, however, of 
 these additional jurisdictions is not within the scope of 
 the present Treatise, which is confined to the prerogative, 
 or proper equitable 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 
 PM. -i jurisdiction is exercised. It *is obvious that in 
 every Court some forms must exist; of which 
 the character will be determined by the nature of the 
 jurisdiction, and the objects which it is principally exer- 
 cised to attain. In accordance with this view, the forms 
 of pleading and procedure in equity are directed to elicit- 
 
 V ing 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 informa- 
 tion by the Attorney-General. The bill or information 
 
 / consists of five principal parts, viz.: the statement, the 
 charges, the interrogatories, the prayer for relief, and the 
 prayer of process. The statement is a narrative of the 
 plaintiff's case ; and it is essential that it state a consistent 
 case on behalf of all the plaintiffs, and that it state such 
 case in direct terms, with reasonable certainty, and with- 
 out scandal or impertinence. The charges are generally 
 
 1 6 Geo. 4, c. 16, and 1 & 2 Win. 4, c. 56 ; 5 & 6 Viet. c. 122 ; 10 & 11 
 Viet. c. 102. 
 
 2 6 & 7 Viet. c. 73 1 Smith's Ch. Pr. c. 3; Beames on Costs, pi. 2 ; 2 
 Law Review 317 ; 3 Id. 155, 319.
 
 INTRODUCTION. 43 
 
 used for collateral objects ; such, for example, as meeting 
 an anticipated defence by matter in avoidance, or by in- 
 quiries to sift the truth; giving notice of evidence which 
 might otherwise operate as a surprise; and obtaining dis- 
 covery as to matter of detail, which could not be conve- 
 niently introduced in the statement. The interrogatories 
 are an examination of the defendant on oath. The prayer 
 for relief, or statement of the relief required, must state 
 with reasonable clearness what relief is asked, and must 
 not combine distinct claims against the same 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 may issue, directed 
 to the parties named as defendants, and requiring them 
 to appear and answer the bill, and to abide by the decree 
 when made. In bills for discovery or to perpetuate 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 certiorari, 
 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 de- 
 fendants to *the bill, and should consist of all per- p, -, 
 sons interested in the suit, who are not already 
 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 
 no difficulty as to persons against whom relief is expressly 
 asked; but with respect to those who are incidentally con- 
 nected with the relief asked against others, the line of
 
 44 ADAMS'S DOCTRINE OF EQUITY. 
 
 demarcation is less easy to draw. The interests, how- 
 ever, which require such joinder seem generally referable 
 to one of the three following heads : first, interests in the 
 subject-matter, which the decree may effect, and for the 
 protection of which the owners are joined; secondly, con- 
 current claims with the plaintiff, which, if not bound by 
 the decree, may be afterwards litigated; and thirdly, 
 liability to exonerate the defendant, or to contribute with 
 him to the plaintiff's claim. In cases where the persons 
 thus interested are too indefinite or numerous to be indi- 
 vidually 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 contempt; 
 and the plaintiff is enabled, on compliance with certain 
 rules, to enter an appearance for him, and, on continuance 
 of his default, either to take the bill pro confesso, or to 
 put in a formal defence in his name and proceed to sup- 
 port the bill by evidence. 
 
 Assuming that the defendant is not contumacious, his 
 defence. may be made in four forms, those of disclaimer, 
 [/demurrer, plea, or answer. And any two or more of these 
 forms may be combined, provided they be applied to dif- 
 ferent parts of the bill and their respective application 
 be distinctly pointed out. 
 
 A disclaimer denies that the defendant has any interest
 
 INTRODUCTION. 45 
 
 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 demurrer 
 is allowed on argument the suit is *at an end, un- p,., .-, 
 less 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 affirma- 
 tive, 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. </., when having stated a release of his 
 original equity, he charges that such release was obtained 
 by fraud. In this case, the release or other original de- 
 fence may be pleaded with averments, denying the fraud 
 or other equity charged in avoidance ; and the term ano- 
 malous is used, because it does not tender an independent 
 issue, but sets up anew the impeached defence with aver- 
 ments in denial of the impeaching equity. 
 
 The adoption of the negative and anomalous plea has 
 introduced a peculiar form of pleading, called a plea sup- 
 ported by an answer. It often happens, where a negative 
 plea is used, that the bill contains allegations in evidence 
 of the disputed statement. In this case the plea of its 
 untruth will not protect from discovery of matters which 
 would prove it true ; and, therefore, these allegations
 
 46 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 averments in the plea, so as to 
 render the defence complete, but must in respect of the 
 plaintiff's right of discovery, be the subject of a full 
 answer in support. 
 
 The rules of pleading applicable to a plea are, that it 
 must raise a single issue, and that its averments must 
 have the same certainty as in a plea at law. It is also 
 generally requisite to the validity of a plea that it be 
 verified by the defendant's oath. 
 
 The decision on a plea is obtained in two ways : first, 
 by setting it down for argument in order to try its 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 
 p., ..-, 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 evi- 
 dence, there. will be a decree for the defendant; if dis- 
 proved, he can set up no further defence, but a decree 
 will be made against him. 
 
 The defence by answer is the most usual, and generally, 
 the most advisable course. It puts on the record the 
 whole case of the defendant, and enables him to use all 
 or any of his grounds of defence, subject, only to the ne- 
 cessity of verifying them on oath ; and it unites with this 
 statement of the defence a discovery on oath as to the 
 matters alleged in the bill. Its averments, so far as it is
 
 INTRODUCTION. 47 
 
 a narrative of the defendant's case, are governed by the 
 same rules as those of a bill, viz., they must state a con- 
 sistent case, and must state it with reasonable certainty, 
 and without scandal or impertinence. In so far as it con- 
 sists of discovery, it is regulated by the principles which 
 have been already noticed under that head of jurisdiction. 
 
 After the answer .is put in, the next question which 
 arises regards its sufficiency, viz., whether the defendant 
 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 further 
 answer must be filed. If either party is dissatisfied with 
 the Master's decision, he may bring the question before 
 the Court by exceptions to the report ; and it will then 
 be finally decided. 
 
 The next step is the amendment of the bill. The 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 answer, 
 he may do so, though not required by the bill. The 
 right of amending is not absolutely confined to the plain- 
 tiff. The defendant may, under special circumstances, 
 obtain a similar indulgence by getting leave to file a sup- 
 plemental answer ; but as an answer is put in on oath, 
 the Court, for obvious reasons, will not readily suffer 
 alterations to be made. 
 
 The final result of the pleadings is, that the original or 
 ultimately *amended bill and the answer or sue- p, -! 
 cessive answers of the defendant constitute the
 
 48 ADAMS'S DOCTRINE OF EQUITY. 
 
 whole record. The plaintiff may then either set down 
 the cause for hearing on bill and answer, admitting the 
 answer to be true throughout, or if he controverts any 
 part of the answer, or requires additional proof of his 
 case, may file a short general form, called a replication, 
 stating that he joins issue with the defendant. 
 
 The answer of the defendant is the chief foundation of 
 interlocutory orders, that is, of orders not made at the 
 hearing of the cause, but obtained during its progress for 
 incidental objects ; and such orders, therefore, will natu- 
 rally 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 evi- 
 dence. Where other evidence is admitted it is brought 
 forward, not by the regular examination of witnesses, but 
 by the affidavits of voluntary deponents. 
 
 Applications of this kind are made for a variety of ob- 
 jects ; 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 ad- 
 mitted to be in the defendant's possession, and to be capa- 
 ble 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 admits that the applicant is inter- 
 ested. Thirdly, for a receiver, where no competent per- 
 son 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 immi- 
 nent danger be shown. Fourthly, an injunction to restrain
 
 INTRODUCTION. 49 
 
 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 p., . -, 
 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 publicly, so that 
 conflicting testimony may be compared and sifted. In 
 equity, the object is to elicit a sworn detail of facts on 
 which the court may adjudge the equities, and to preserve 
 it in an accurate record, for the use, if needed, of the 
 appellate court. 
 
 For this reason the evidence in equity is taken in 
 writing, by examination or interrogatories previously pre- 
 pared. And in order to avoid the risk of defects being 
 discovered in the course of taking it, and false evidence 
 procured to remedy them, it is taken secretly by an 
 officer of the court, and no portion is disclosed until the 
 depositions are complete, and the time arrives for publi- 
 cation of the whole. 
 
 After the depositions have been published and read, no 
 further evidence is admissible without special leave, ex- 
 cept evidence to discredit a witness, either by impeaching 
 4
 
 50 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 evidence 
 are stated, and the court either makes a final decree, or, 
 if any questions are involved which the evidence does 
 not satisfactorily determine, it 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 
 r-^ -, court is unwilling to decide; *2. That a similar 
 dispute has arisen on a matter of fact ; 3. That 
 the equity claimed is founded on an alleged legal right, 
 the decision of which the Court of 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 can not at the hearing effect- 
 ually deal with. The machinery for obviating these im- 
 pediments is that of a preliminary decree, directing, 1. A 
 case for a court of law ; 2. An issue for a jury ; 3. An 
 action at law, to be determined in the ordinary course ;
 
 INTRODUCTION. 51 
 
 or 4. A reference to one of the Masters of the Court to 
 acquire and impart to it the necessary information. 
 
 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 state- 
 ments and counter-statements, which are supported either 
 by affidavits, by depositions, or by viva voce testimony. 
 When the evidence is complete, the Master prepares a 
 draft report, and it is the duty of any dissatisfied party 
 to lay before him written objections, specifying the points 
 in which he considers it erroneous. If this is not done, 
 he cannot afterwards contest the correctness of the report. 
 
 When the Master has disposed of all objections, and 
 come to a conclusion on the matters referred, he settles 
 and signs his report, and such report is then filed, 
 
 If any of the persons interested, whether actual or 
 quasi parties, are dissatisfied with the report, they may 
 file written exceptions, founded on the objection previ- 
 ously taken, and specifying the alleged errors and the 
 corrections proposed. The exceptions are then heard and 
 determined by the Court. 
 
 When the exceptions have been disposed of, and the 
 report confirmed, the cause is heard on further directions, 
 and the costs are generally disposed of, at the same time. 
 If the nature of the case made on the report involves the
 
 52 ADAMS'S DOCTRINE OF EQUITY. 
 
 necessity of new inquiries, a reference is again made, 
 PM 7 --i and further directions are again reserved, *and 
 the same process is from time to time repeated 
 until a final decree is made. 
 
 The power to compel obedience to the decree, like that 
 for enforcing appearance or answer, was originally confined 
 to process of contempt ; and the party against whom the 
 decree was made was exposed to have his person impris- 
 oned and his goods sequestered as a punishment for dis- 
 obedience ; 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 Viet. c. 110, this 
 inconvenience has been to some extent remedied, and the 
 Court is enabled to direct an execution of instruments by 
 another person in the name of the contumacious party, to 
 take possession of documents in his hands which he 
 refuses to deliver up, and to levy moneys out of his pro- 
 perty by writ of execution. Where none of these reme- 
 dies can be adopted, as where 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 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 con- 
 fined, as to law, to the final judgment, but extends to in- 
 terlocutory proceedings in the cause. 
 
 A decree, when made, is not perfected until enrolment ; 
 and therefore, so long as it continues unenrolled, it may 
 be altered on a rehearing before the same jurisdiction, 
 viz., either before the Judge who originally made it, or 
 before the Lord Chancellor as the head of the court.
 
 INTRODUCTION. 53 
 
 After enrolment it is a conclusive decree, and can only 
 be altered on appeal. 
 
 For the purpose of such appeal there is a twofold juris- 
 diction : first, in the King, whose conscience is ill admin- 
 istered, and who may issue a special commission pro re 
 nata to reconsider his Chancellor's decree; and, secondly, 
 in the House of Lords, on petition to them as the supreme 
 judicature of the realm. The former of these courses, 
 however, is now disused, and the latter, which at one time 
 was the subject of vehement contention, has practically 
 superseded it. 
 
 In the observations which have been hitherto made on 
 procedure in equity, three things have been assumed, viz., 
 first, that a decree on the plaintiff's bill will determine the 
 litigation; secondly, that the bill is properly framed in the 
 outset for obtaining that decree; and *thirdly, p^ ..-, 
 that the suit is conducted to its termination 
 without interruption or defeat. It is obvious 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 
 plaintiff'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 be- 
 tween 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 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 continuance where a new
 
 54 ADAMS'S DOCTRINE OF EQUITY. 
 
 defence arises after answer, but not for the purpose of in- 
 directly 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 amendment 
 has elapsed, it may be rectified by a supplemental bill, or 
 by a bill in the nature of supplement, the character of 
 which will be considered under the next head. 
 
 Imperfections of the third class are those which origi- 
 nate in an interruption or defect subsequent to the insti- 
 tution of the suit, and they are rectified, according to 
 circumstances, by a bill of revivor, or in the nature of 
 revivor, and by bill of supplement, or in the nature of 
 supplement. 
 
 Interruptions of a suit are called abatements, and are 
 cured by a bill of revivor, or in nature of revivor. They 
 occur on the death of any litigating party, whose interest 
 or liability does not either determine on death or survive 
 to some other litigant, and on the marriage of a female 
 plaintiff or co-plaintiff. If the interest or liability be 
 transmitted by act of 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 nature of 
 revivor, and requires a decree at the hearing to revive. 
 
 Defects in a suit subsequent to its institution may be 
 P.J., ...-| 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 bill of supplement, or in the nature of a 
 supplement.
 
 INTRODUCTION. 55 
 
 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- 
 feror. 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 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 re- 
 quired, but that the proper course is to apply for liberty 
 to examine witnesses, and to have the deposition 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 amend- 
 ment, they are introduced by supplemental bill. 
 
 If new matter occurs, or is discovered after the hearing, 
 it is not properly matter of supplement, but may be intro- 
 duced into the cause, if necessary, by a bill expressly 
 framed for the purpose, and called a bill to execute or to 
 impeach the decree. 
 
 A bill to execute a decree is a bill assuming as its basis 
 the principle of the decree, and seeking merely to carry 
 it into effect. 
 
 A bill to impeach a decree, is either a bill of review, a 
 supplemental bill in the nature of review, an original bill
 
 6 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 
 p, . -| occurrence or *discovery of new matter, and must 
 be filed by leave of the Court. The manner of 
 procedure on such a bill is to petition for a rehearing of 
 the cause, and to have it heard at the same time on the 
 new matter. If the ground of complaint be error ap- 
 parent, 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 DISCOVERY. 
 
 THE jurisdiction of the Courts of equity for the enforce- 
 ment of civil rights, as distinguished from the jurisdiction, 
 of the Courts of common law, derives much of its utility 
 from the power of the Great Seal to compel the defendant 
 in a suit to discover and set forth upon oath every fact 
 and circumstance within his knowledge, information, or 
 belief, material to the plaintiff 's case. 
 
 This right to enforce Discovery, as it is called, does not 
 exist in the Courts of common law. 1 In those Courts the 
 plaintiff must make out his case by the evidence of wit- 
 nesses, 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 *com- r*<y\ 
 mon law; whilst the rights of the defendant are 
 
 1 In England, in the United States Courts, and in most of the states, the 
 common law rule has been altered, and parties are now competent and com- 
 pellable to testify.
 
 58 ADAMS'S DOCTRINE OF EQUITY. 
 
 equally provided for, by the privilege, in his turn, of re- 
 quiring from the plaintiff, by a cross suit (the reconversion 
 of the civil law), the like discovery upon oath of all the 
 circumstances within the plaintiff's knowledge. 
 
 The jurisdiction thus enforced in the Courts of equity 
 is, at the same time, carefully guarded, so that it may 
 only elicit the truth, without wrong to the party exam- 
 ined. 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 encumbered with irrelevant 
 matter. 
 
 The Court of Chancery, as has already been observed 
 in the Introduction, does not, in requiring discovery, de- 
 part from the general policy of the law. 1 It requires a 
 
 1 When the suitor is an individual, although he may be a sovereign of a 
 foreign state suing in his capacity as sovereign, yet he is bound to answer 
 to a cross bill : The King of Spain v. Hallett, 6 Clark & F. 333 ; and to an- 
 swer upon oath. But, as the right of a plaintiff to sue does not depend 
 upon the effectiveness of the discovery which on a cross bill may be exacted 
 from him, a republic, like the United States, for example, can sue, although 
 no effectual discovery could be had from it on a cross bill : United States 
 v. Wagner, L. R. 2 Ch. Ap. 582. But a suit in the name of " the government 
 of the State of Columbia" is too vaguely brought : Columbian Government 
 v. Rothschild, 1 Sim. 94. Whether the executive of a foreign republic can 
 be made a defendant for the purpose of obtaining discovery on a cross bill 
 seems to be doubtful. See Prioleau v. The United States, L. R. 2 Eq. 659 ; 
 United States v. Wagner (supra). The proper course would seem to be for 
 the defendant to apply to the republic plaintiff to name some person from 
 whom the discovery sought for may be obtained ; and if the information 
 is refused, the Court will be justified in staying proceedings in the suit 
 until the defendant's demand is complied with : United States v. Wagner, 
 per Lord Chelmsford.
 
 OF DISCOVERY. 59 
 
 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. 1 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 facts 
 which have passed between himself and them in reference 
 to the dispute in litigation ; and thirdly, that official per- 
 sons cannot be called on to disclose any matter of State, 
 the publication of which may be prejudicial to the com- 
 munity. 
 
 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 choose p^o-i 
 to indict him. (a) 2 
 
 (a) East India Company v. Campbell, 1 Ves. sen. 246 ; Claridge v. Hoare, 
 14 Ves. 59, 65 ; Litchfield v. Bond, 6 Bea. 88 ; Short . Mercier, 3 Macn. 
 & Gord. 205. 
 
 1 The defendant may stop at any point in his answer, and defend him- 
 self on the ground of privilege, notwithstanding other admissions therein : 
 King of Sicilies v. Willcox, 1 Sim. N. S. 301. 
 
 2 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 turpitude : 
 United States . Saline Bank, 1 Peters 100; Northrop v. Hatch, 6 Conn" 
 361 ; Skinner v. Judson, 8 Conn. 528 ; Hayes v. Caldwell, 5 Gillman 33 j 
 Ocean Insurance Company v. Fields, 2 Story 59 ; The Union Bank v. Barker, 
 3 Barb. Ch. 358; Marshall v. Riley, 7 Geo. 367; Poindexter v. Davis, 6 
 Gratt. 481 ; Stewart v. Drasha, 4 McLean 563 ; Higdon v. Heard, 14 Geo.
 
 60 ADAMS'S DOCTRINE OF EQUITY. 
 
 If the objectionable nature of the discovery asked ap- 
 pears on the bill, the protection may be claimed by de- 
 murrer ; 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. (b) 
 
 If the tendency of the question is not apparent on the 
 bill, the defendant may take the objection by a plea set- 
 ting forth by what means he may be liable to punishment 
 or forfeiture, and may insist he is not bound to answer 
 the bill, or so much thereof as the plea will cover. Thus 
 
 (6) Mitford on Pleading, 4th edit. 193-197. 
 
 255. And it seems an action for slander is in the nature of a penal action, 
 and comes within the general rule : Bailey v. Dean, 5 Barb. S. C. 297. So 
 of a bill to set aside a conveyance on the ground of usury : Masters v. 
 Prentiss, 2 Jones's Eq. 62. But a defendant may be compelled 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 subject: King of Two Sicilies v. 
 Willcox, 1 Sim. N. S. 301. As a corporation 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 ex- 
 posed to criminal prosecution : Benyon v. Nettlefield, 3 Macn. & Gord. 94. 
 And, in general, that discovery will subject others than the defendant to 
 penalty or forfeiture, is no ground of protection : King of, &c. 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 
 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 Atwill v. Ferrett, 2 Blatch. C. C. 39; 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 : Id.
 
 OF DISCOVERY. 61 
 
 to a bill brought to a discovery of a marriage, the defend- 
 ant pleaded with success that the person whom she was 
 alleged to have married had previously married her sister, 
 so that the marriage, if real, was incestuous ; and to a 
 bill against bankers for obtaining a re-transfer of stock, 
 alleged to have been unduly obtained from the plaintiff 
 for the purpose of making good a deficiency in his son's 
 accounts, the defendants pleaded that the transaction re- 
 ferred 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 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 for- 
 feiture. Therefore, where a *tenant for life pleaded p. ,-, 
 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 occa- 
 sion 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 ta 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 
 
 (c) Mitf. 284-287 ; Claridge . Hoare, 14 Ves. 59.
 
 62 ADAMS'S DOCTRINE OF EQUITY. 
 
 the information asked without affording evidence of his 
 crime, he will not be compellable to give it.(^) 1 
 
 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. 2 And it 
 seems that an objection will not hold to discovery of a 
 fraud, on the mere ground that it might be indictable as 
 a conspiracy at law, unless there is an indictment actually 
 pending, or at all events a reasonable probability that one 
 will be preferred. The result of an opposite course would 
 be to render the very magnitude of a fraud its protection 
 against redress.^) 3 It has also been decided that a de- 
 fendant 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 
 
 (d) Parkhurst v. Lowten, 1 Meriv. 391 ; s. c. 2 Swanst. 194, 214; Att.- 
 Gen. v, Lucas, 2 Hare 566. 
 
 (e) Dummer v. Corporation t)f Chippenham, 14 Ves. 245 ; Lee v. Read, 
 5Bea. 38]. 
 
 1 The defendant should state that he believes that the discovery will sub- 
 ject him to penalties : Scott v. Miller, Johns. 328. 
 
 2 A Court of Chancery will generally compel a discovery to detect fraud 
 and imposition, and to set aside a fraudulent conveyance : Skinner v. 
 Judson, 8 Conn. 528 ; Attwood v. Coe, 4 Sandf. Ch. 412. And see the 
 application of the exception in cases of privileged communications infra, 
 note to page 6. 
 
 3 Howell v. Ashmore, 1 Stockton (N. J.) 82. If, in a bill charging fraud, 
 the defendants, without demurring, answer, they must answer fully. An 
 answer that their innocence will appear by the accounts disclosed pre- 
 cludes them from objecting to the order to produce them : O'Connor v. 
 Tack, 2 Brews. (Pa.) 407.
 
 OF DISCOVERY. 63 
 
 faithful discharge of his official duties. It was his duty 
 to give the account asked, and he was not allowed to set 
 up his own violation *of 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 con- 
 tract by the defendant to answer, and not to avail himself 
 of the protective privilege, does not per se exclude him 
 from the protection of the law.(/) 
 
 In addition to the cases just mentioned, there are other 
 cases which have been termed exceptions to the doctrine, 
 but which are in fact instances to which its principle does 
 not apply. Such, for instance, are those where the 
 penalty has ceased by effluxion of time, or where the 
 the plaintiff is alone entitled to the penalty, and expressly 
 waives it by his bill ;(y)* or where what is called a penalty 
 or forfeiture is in reality mere stipulated damages or cessa- 
 tion of interest. Thus where a lessee covenanted not to 
 dig clay or gravel, except for the purpose of building on 
 the land demised, with a proviso that if he should dig for 
 any other purpose he should pay to the lessor twenty 
 shillings a load, and he afterwards dug great quantities 
 of each article ; on a bill for discovery of the quantities, 
 waiving any advantage of a possible forfeiture of the 
 term, a demurrer of the lessee, because the discovery 
 
 (/) Mitf. 195 ; Green t. Weaver, 1 Sim. 404 ; Lee r. Read, 5 Bea. 381. 
 (g) Mitf. 195-197 ; Trinity House Corporation v. Burge, 2 Sim 411. 
 
 1 Skinner v. Judson, 8 Conn. 528. But see Northrop r. Hatch, 6 Conn. 
 361 ; Dwinal v. Smith, 25 Maine 379.
 
 64 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 
 r*i by purchase, a demurrer will not hold.(^) 1 In *re- 
 spect also to some transaction made illegal by sta- 
 tute, such as gaming and stockjobbing, it has been ex- 
 pressly enacted, that the parties shall be compellable to 
 give discovery in equity, notwithstanding that by so doing 
 they may expose themselves to penalties, (if 
 
 The second maxim of privilege is, that no man need 
 discover legal advice which has been given him by his 
 professional advisers : or statement of facts which have 
 passed between himself and them in reference to the dis- 
 pute in litigation. 3 
 
 (h) Mitf. 195, 196, 197. 
 
 (i) Mitf. 288 ; 9 Ann. c. 14, s. 3 ; 7 Geo. 2, c. 8, s. 2. 
 
 1 See Hambrook v. Smith, 16 Jur. 144. 
 
 2 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 penalties 
 of the Stockjobbing Act, was good : Short v. Mercier, 3 Macn. & Gord. 
 205 ; Robinson v. Lamond, 15 Jur. 240. 
 
 3 The application of the rule prohibiting the discovery of legal advice, 
 depends first upon the character of the parties secondly upon the rela- 
 tions existing between them and lastly upon the surrounding circum- 
 stances. The communication to be protected must, in the first place, be 
 made between the client and his legal adviser only : Parker v. Carter, 4 
 Munf. 273 ; Jackson v. Inabinit, Riley Ch. 9 ; March v. Ludlum, 3 Sandf. 
 Ch. 35; Crosby v. Berger, 11 Paige 377; Stuyvesant v, Peckham, 3 Ed. 
 Ch. 579 ; The Bank of Utica v. Mersereau, 3 Barb. Ch. 528 ; or some per- 
 son acting as that adviser's clerk or agent: Parker v. Carter, 4 Munf. 
 273 ; Russell v. Jackson, 9 Hare 387 ; Goodall v. Little, 1 Sim, N. S. 155 ;
 
 OF DISCOVERY. 65 
 
 The statement of the above doctrine is thus limited in 
 its terms, because it seems doubtful whether statements 
 
 Jenkyns . Bushby, L. R. 2 Eq. 547 ; Lafone v. Falkland Islands Co., 4 K. 
 A: J. 34 ; Walshain r. Stainton, 2 Hem. & M. 1 ; Reid v. Langlois, 1 Mac. 
 ,v- <i. 627. See, however, Ross r. Gibbs, 8 Eq. L. R. 522, where Stuart, 
 V.-C., held, that communications with an unprofessional agent were privi- 
 leged. Hooper v. Gumm, 2 John. & H. 602 ; but the rule does not apply 
 to a student in counsel's office : Andrews v. Solomon, Pet. C. C. 356 ; nor 
 to the son of the attorney, happening to be present in the office, and not 
 connected professionally with his father : Goddard v. Gardner, 28 Conn. 
 172 ; nor to a confidential clerk : Corps v. Robinson, 2 Wash. C. C. 388 ; 
 nor to a stranger casually present : Jackson v. French, 3 Wend. 337 ; nor 
 to communications between solicitors of opposite parties : Gore v. Bowser, 
 5 De G. & Sm. 30 ; nor to communications between different defendants 
 made for the purpose of being laid before their solicitor: Goodall v. Little, 
 1 Sim. N. S. 155 ; though see Jenkyns v. Bushby, L. R. 2 Eq. 547 ; also 
 Betts v. Menzies, 26 L. J. Ch. 528. In the second place the relation of 
 solicitor and client must actually exist between the parties ; therefore, if 
 a lawyer acts simply as a friend, communications to him in that capacity 
 will not be protected : Coon r. Swan, 30 Verm. 6 ; nor communications 
 made after the relation has ceased to exist : Yordan v. Hess, 13 Johns. 
 4'.i2 : and the client must not be a merely nominal party, but must have 
 some interest in or control over the suit: Id. 219; Hamilton v. Neel, 7 
 Watts 517. 
 
 Lastly, the circumstances under which the communication is made are 
 to be taken into consideration. It was at one time thought that the rule 
 applied only to disclosures made when there was a cause pending; see 
 infra pp. 6 and 7 in the text, and also Whiting . Barney, 30 N. Y. 330, 
 where the origin of the protection is explained and the old rule in this re- 
 spect adhered to ; but communications made after a dispute has arisen, 
 though before litigation are now protected: see Warde v. Warde, 1 Sim. 
 X. S. 18 (endorsed on another point in 3 Mac. & Gord. 365) ; Jenkyns r. 
 Bushby, L. R. 2 Eq. 547 ; Bluck . Galsworthy, 2 Giff. 453 ; McLellan v. 
 Longfellow, 32 Maine 494 ; McMannus v. The State, 2 Head 213 ; and the 
 privilege has been extended to matters disclosed to an attorney who has 
 been employed to draw a deed : Parker v. Carter, 4 Munf. 273 ; though see 
 The Bank of Utica r. Mersereau, 3 Barb. Ch. 528 ; or an affidavit to get an 
 assessment reduced : Williams r. Fitch, 18 N. Y. 546. 
 
 This privilege against discovery extends only to those matters " in which 
 it is lawful for the client to ask and the solicitor to give professional ad- 
 vice;" and therefore not to cases of fraud concerted between counsel and 
 client: Reynell v. Sprye, 10 Beav. 51 ; 11 Beav. 618 ; Gartsider. Ontram, 
 5
 
 66 ADAMS'S DOCTRINE OF EQUITY. 
 
 of fact which have passed between himself and his ad- 
 visers, if made before the litigated question arose, are en- 
 titled 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 imperative 
 and express, that wherever an attorney or counsel is pro- 
 fessionally 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 defendant in the suit, he 
 cannot divulge what he has so learnt. (#) There is also 
 
 (k) Greenough . Gaskell, 1 M. & K. 98 ; Herring v. Clobery, 1 Ph. 91 ; 
 Jones v. Pugh, 1 Ph. 96. 
 
 26 L. J. Ch. 113. The fraud, however, must be concocted between the 
 solicitor and client, and when the fraud is purely collateral to the com- 
 munication, and none was charged on the part of the solicitor, the com- 
 munication was protected: Morningtonw. Mornington, 2 Johns. & H. 697. 
 The privilege against discovery is, in general, inapplicable to communi- 
 cations between a testator and his solicitor, with reference to the dispo- 
 sitions contained in his will, notwithstanding that the enforcement of dis- 
 covery 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 dispositions of the will, but 
 only collaterally, such communications were 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. Browne, 16 Jur. 606 ; s. c., 
 9 Hare 790. 
 
 Where husband and wife have distinct interests, and the wife is induced, 
 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 re- 
 lating 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. 
 
 In some states, as in Georgia and Missouri, these communications be- 
 tween solicitor and client are protected by statute.
 
 OF DISCOVERY. 67 
 
 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 gene- 
 rally 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 sup- 
 posed liability in the client seems open to doubt. The 
 cases which have been considered to establish it, are ap- 
 parently capable of a different interpretation ; and it seems 
 difficult to discover any substantial difference, in point of 
 reason, principle, or convenience, between the liability of 
 the client, and that of his ^counsel or solicitor, to p^n 
 disclose communications made in confidence, or be- 
 tween the communications so made and others which differ 
 from them only in this, that they precede instead of fol- 
 low the actual arising of a dispute. (/) If, before the 
 communications were made, litigation, or a dispute ending 
 in litigation, had commenced, the client is certainly ex- 
 empt from discovery, at least if they related to the dispute, 
 or matters in dispute. The first point decided 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 
 WHS expected and afterwards arose, were entitled to the 
 same privilege A third question then arose with regard 
 to communications taking place after a dispute had arisen 
 between the parties, which was afterwards followed by 
 litigation, but not made in contemplation of, or with ref- 
 erence to, that litigation ; and these communications were 
 also protected. 1 And it was finally decided that a defencl- 
 
 (l) Pearsec. Pearse, 1 De G. & S. 12. 
 
 1 Warde v. Warde, 1 Sim. N. S. 18, reversed on another point, 3 Macn. 
 & Gord. 365 ; McLellan v. Longfellow, 32 Maine 494. See Jenkyns v.
 
 68 ADAMS'S DOCTRINE OF EQUITY. 
 
 ant might protect from discovery in the suit of one party, 
 cases or statements made after litigation commenced 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 circumstance that the 
 communications have not been made directly to or by the 
 solicitor or counsel, but have been transmitted through an 
 intermediate agent. (n) 1 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 communi- 
 cations with a solicitor, or that they bore a reference to 
 the legal proceedings. (o) 2 
 
 The third maxim of privilege protects official persons 
 
 r#Q-i *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 
 
 (m) 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. 
 
 (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. 231.] 
 
 Bushby, L. R. 2 Eq. 547 (V.-C. Kindersley), where a case stated, prepared 
 by the solicitor of a predecessor in title to the defendant, and the opinion 
 of counsel thereon, was protected the opinion having been given before 
 litigation was commenced, but after a dispute had arisen. But communi- 
 cations before any dispute had arisen, are not privileged : Hawkins v. Gath- 
 ercole, 1 Sim. N. S. 150. 
 
 1 Russell v. Jackson, 9 Hare 387 ; Goodall v. Little, 1 Sim. N. S. 155; 
 Jenkyns v. Bushby, L. R. 2 Eq. 547. 
 
 2 No presumption of fact is to be made against any one for enforcing the 
 rule against disclosure by his solicitor: Wentworth v. Lloyd, 10 II. L. 
 Cas. 589.
 
 OF DISCOVERY. 69 
 
 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 commu- 
 nications 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 dis- 
 covery of matters within its scope be asked from a defend- 
 ant in equity, he may successfully refuse to give it.(jp) 1 
 
 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 re- 
 specting them, (q) 
 
 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." 
 
 (p) Phillipps on Evidence, 8th ed. 189 ; Smith v. East India Company, 
 1 Ph. 50 ; Rajah of Coorg v. East Ind. Co., 25 L. J. Ch. 365. 
 ( 2 ) Mitf. 196. 
 
 1 Although the principle cited in the text is familiar to the profession, 
 yet the American editor has been able to discover only two cases bearing 
 upon the subject, and these decided not in Chancery, but at law : Mar- 
 bury 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.
 
 70 ADAMS'S DOCTRINE OF EQUITY. 
 
 As against an incompetent defendant discovery cannot be 
 enforced, viz., against an infant, or lunatic without com- 
 mittee, or the Attorney-General when made a defendant 
 on behalf of the Grown, (r) 
 
 The first rule respecting discovery is, that the defendant 
 must answer to all facts material to the plaintiff's case. 1 
 
 *He is not bound to answer questions of law; for 
 L such questions ought to be decided by the Court. 
 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 moneys with his own, 
 and called on him to set out a monthly account of his 
 banker's balances, with an account of his own property, 
 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 plaintiff's case; 2 
 
 (r) Micklethwaite v. Atkinson, 1 Coll. 173. 
 
 (s) Dos Santos v. Frietas, Wigr. on Discovery, s. 239 ; Janson v. Solarte, 
 
 2 Y. & C. 127. 
 
 1 Ouyler et al. v. Rogert et al., 3 Paige Ch. R. 186 ; Phillips v. Prevost, 
 4 John. Ch. 205 ; Parkinson v. Trousdale, 3 Scammon 367 ; Hagthorp v. 
 Hook, 1 Gill. & John. 272 ; Salmon v. Clagett, 3 Bland Ch. 142 ; Brooks 
 v. Ryam, 1 Story 296-301 ; Langdon v. Goddard, 3 Story 13 ; Methodist 
 Epis. Church v. Jaques, 1 John. Ch. 65 Bank of Utica v. Messereau, 7 
 Paige 517; King v. Ray, 11 Paige 235; Kittredge v. Claremont Bank, 
 
 3 Story 590 ; Champlin v. Champlin, 2 Edw. Ch. 362 ; Robertson v. Bing- 
 ley, 1 McC. Ch. 333 ; Wootten v. Burch, 2 Maryl. Ch. Dec. 190 ; Rider v. 
 Riley, Id. 16 ; Waring v. Suydam, 4 Edw. Ch. 426. 
 
 2 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 de- 
 fendant, though not of the evidence by which it is to be supported : Atty.-
 
 OF DISCOVERY. 71 
 
 for although the plaintiff is entitled to know what the 
 defence is, and to have it verified on oath, he is not 
 entitled to cross-examine the defendants as to the pre- 
 cise mode in which he intends to establish it.(tf) 
 
 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 answer 
 to such a bill, the defendant is bound to set forth his evi- 
 dence. 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, (w) 1 
 
 (t) Llewellyn v. Badeley, 1 Hare 527 ; [Atty.-Gen. v. Corp. of London, 2 
 Macn. & Gord. 247 : Cullison v. Bossom, 1 Maryl. Ch. Dec. 95.J 
 
 () Lowndes v. Davies, 6 Sim. 468 ; Bellwood v. Wetherell, 1 Y. & C. 
 211-218 ; Wigr. on Discovery, s. 378 ; Glascott v. Copperminers' Company, 
 11 Sim. 305; Mitf. 53. 
 
 Gen. v. Corp. of London, 2 Macn. & Gord. 247. So, he has a right to the dis- 
 covery 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 com- 
 pelled to disclose the evidence in support of his own : Stainton v. Chad- 
 wick, 3 Macn. & Gord, 575 ; see Young . Colt, 2 Blatch. C. C. 373. 
 
 Where a defendant holds a covenant for the protection of deeds for the 
 maintenance and manifestation of his title, he is not bound to answer to 
 interrogatories to set out such deeds in a suit, the object of which is to 
 show that a disputed piece of Idnd is not comprised in the defendant's 
 title : Bethell v. Casson, 1 Hem. & M. 806. 
 
 It seems that in Massachusetts, 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, 3 Gush. 542. 
 
 1 In Swaby v. Sutton, 1 Hem. & M. 514, the bill stated two indentures 
 of settlement, giving dates, and prayed an account, &c., under them. The
 
 72 ADAMS'S DOCTRINE OF EQUITY. 
 
 This rule is embodied in the maxim that "if a defend- 
 r#iA-| an t *answers at all, he must answer fully;" and 
 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 than allege that, in conse- 
 quence of such denial, the rest of the discovery sought 
 has become immaterial. 1 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 plaintiff, if the decision 
 be in his favor, may obtain a complete decree. (v) 2 It is 
 manifest from this explanation of the rule, that it applies 
 to such matters only as are in themselves proper objects 
 
 (v) Lancaster v. Evors, 1 Ph. 340; [Reade v. Woodruffe, 24 Beav. 421.] 
 
 answer was that there was an indenture of another date, and an appoint- 
 ment exercised under that excluding the plaintiff, and gave no account. 
 Held insufficient. " If you choose to rest on a short point," said Wood, 
 V.-C., " you must do so by plea ; or if not, you must answer ; but then you 
 must meet the way in which the plaintiff puts his case, and must answer 
 fully everything which, if answered according to his view, would assist 
 him at the hearing." 
 
 1 See Bains v. Goldey, 35 Penna. St. 51. See also, Chichester v. Mar- 
 quis of. Donegal, 4 Chancery Appeal Cases 416. 
 
 2 Inglessi v. Spartali, 29 Beav. 564. By the interrogatories of a bill 
 filed by a foreign merchant against his London agent, the defendants were 
 asked what were the powers and authorities given to them (in relation to 
 selling currants), and by what documents they made out the same. The 
 defendants stated that the powers and authorities appeared from written 
 correspondence, and that various letters had passed between the parties to 
 which they referred. Held, that the answer was insufficient, and that the 
 defendants were bound to specify the documents containing their powers 
 and authorities.
 
 OF DISCOVERY. 73 
 
 of discovery. It will not, therefore, apply to interroga- 
 tories respecting privileged matters, or respecting matters 
 which are immaterial, or which do not concern the plain- 
 tiff'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. 1 
 
 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 inquiry, for 
 example, whether the defendant did not receive a speci- 
 fied sum at a specified time; is not sufficiently answered 
 by giving a schedule of receipts, which does not include 
 that *sum, and then saying that the schedule con- p-. -. -, 
 tains a list of all moneys received, (x) 
 
 It must be complete, and so framed that the plaintiff 
 can effectually make use of it. For instance, if the 
 plaintiff were to ask for an account, it would not be suffi- 
 cient to tender him a collection of accouni>books, saying 
 
 (tr) Wood v. Hitchings, 3 Bea. 504. 
 
 (x) Faulder . Stuart, 11 Ves. 296 ; Mitf. 309, 210 ; Wharton v. Whar- 
 ton, 1 S. & S. 235 ; Anon., 2 Y. & C. 310 ; Tipping v. Clarke, 2 Hare 383, 
 389 ; [Duke of Brunswick c. Duke of Cambridge, 12 Beav. 281.] 
 
 * Taylor v. Luther, 2 Sumner 228 ; Woods v. Morrell, 1 John. Ch. 103 ; 
 Smith r. Lasher, 5 John. Ch. 247 ; Mechanics' Bank v. Levy, 1 Edw. Ch. 
 316; Tradesmen's Bank v. Hyatt. 2 Edw. Ch. 195 : Wyckloff v. Sniffen, Id. 
 581 ; Norton v. Warner, 3 Edw. Ch. 106 ; Robinson . Woodgate, Id. 422 ; 
 Sloan r. Little, 3 Paige Ch. 103 ; Bailey r. Wilson, 1 Dev. & Bat. Ch. 
 188 ; Pettit v. Candler, 3 Wend. 618.
 
 74 ADAMS'S DOCTRINE OF EQUITY. 
 
 that he would find the account there. But the defendant 
 must himself examine the books and make out a reason- 
 able account, referring to the books for verification and 
 details, (y) The rule, however, will not be enforced to an 
 oppressive extent. And, therefore, where the executors 
 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 expense ; and that the 
 plaintiff was at liberty to inspect the books himself; the 
 answer was held sufficient, on the ground that they had 
 not been personally concerned in the transaction, and that 
 they had given the plaintiff an opportunity of making out 
 the account as fully as they could do themselves. (0) 1 
 
 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- 
 
 (y) White v. Williams, 8 Ves. 193 ; Attorney-General v. East Retford, 2 
 M. & K. ;:5 ; Wigr. on Discovery, s. 283. 
 (z) Christian v. Taylor, 11 Sim. 401. 
 
 1 But even if a detailed statement would be too burdensome, the defend- 
 ant must, nevertheless, do all in his power to facilitate an examination of 
 the accounts by the plaintiff. Thus in Drake v. Synies, Johnson 647, 
 where a bill was filed by a shareholder in an insurance company against 
 the directors, asking for an account, and demanding a list of the lives in- 
 sured, their ages, the bonuses paid, &c., &c., it was held that an answer 
 which merely referred to the books of the company, and set forth those 
 books in a schedule, was not sufficient ; for (as Vice-Chancellor Wood re- 
 marked) there should have been some reference to the heads of informa- 
 tion and some additional facilities should have been afforded the plaintiff.
 
 OF DISCOVERY. 75 
 
 man's bill, or copying an auctioneer's catalogue of furni- 
 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 docu- p*-. o-i 
 ments 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 docu- 
 ments may ultimately prove of importance, (b) 
 
 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 refused to do so, 
 will not be sufficient to excuse its want. Whatever means 
 of information he has a right to possess, the Court will 
 look upon as being in his possession ; and he must resort 
 to proper means for enforcing his right, (c) 1 
 
 (a) Norway v. Rowe, 1 Meriv. 346 ; Byde v. Masterman, Cr. & P. 265 ; 
 Davis v. Cripps, 2 X. C. C. 435. 
 
 (&) Parker v. Fairlie, 1 S. & S. 295 ; T. & R. 362 ; Lowe . Williams, 2 
 S. & S. 574. 
 
 (c) Taylor v. Rundell, Cr. & P. 104; 1 N. C. C. 128 ; IPh. 222; [Clinch 
 r. Financial Corporation, L. R. 2 Eq. 271 ;] Glengall v. Frazer, 2 Hare 99 ; 
 Stuart v. Bute, 11 Sim. 442. 
 
 1 Dinsmoor v. Hazleton, 2 Fost. (N. H.) 535 ; Green v. Carey, 12Geo. 601. 
 But a defendant is not compellable to redeem documents relating to mat- 
 ters in question in a suit, which were pledged by him previous to the in- 
 stitution of the suit : Liddell v. Norton, 23 L. J. Ch. 169. And he is not 
 bound to produce documents for which he merely holds a covenant for 
 production against a third party : Bethell v. Casson, 1 Hem. & M. 806.
 
 76 ADAMS'S DOCTRINE OF EQUITY. 
 
 A question has sometimes been raised whether a plain- 
 tiff 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 appears to be 
 some doubt on this point. (6?) 
 
 A defendant is also bound, if required by the plaintiff, 
 to set forth a list of all documents in his possession, from 
 which discovery of the matters in question can be ob- 
 tained ; 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. 1 
 
 In order to obtain this production, an interrogatory is 
 
 (d) Shepherd v. Morris, 1 Bea. 175, 179. 
 
 1 Roosevelt e. Ellithorp, 10 Paige 415; see also Collom v. Francis, 1 
 Parsons' Select Eq. Cases 527. A party is not entitled to a discovery of 
 title deeds relating solely to his adversary's title : Thompson v. Engle, 3 
 Green Ch. 271 5 Lewis v. Davies, 17 Jur. 253 ; Cullison . Bossom, 1 Maryl. 
 Ch. 95 ; though privity between title of defendant and plaintiff may give 
 the right: Cullison v. Bossom. A defendant is not bound to produce by 
 way of answer, any public documentary evidence of which he is the official 
 keeper : Salmon v. Clagett, 3 Bland. Ch. 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 Supreme 
 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. 
 
 An hear at law is not entitled to the production of title deeds ; but an 
 heir in tail is, and so also is a devisee : Shaftesbury v. Arrowsmith, 4 Ves., 
 66 5 Rumbold v. Forteath, 3 K. & J. 748 ; Story's Equity, s. 1092. But an 
 heir at law is entitled to the production of such documents or parts of 
 documents as will prove his pedigree : Rumbold v. Forteath, supra. 
 
 By the 14 & 15 Viet. c. 99, sect. 6, the Courts of common law of Eng- 
 land, 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.
 
 OF DISCOVERY. 77 
 
 "generally included in the bill, asking whether 
 the defendant has any documents in his possession 
 or power relating to any of the matters alleged, and re- 
 quiring 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 examiner and 
 at the hearing of the cause. 1 
 
 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 : 2 and in conformity with this view it is 
 held, first, that the right exists for the purpose of dis- 
 covery alone ; and secondly, that it must be regulated by 
 the same principles which regulate the right to discovery 
 in the answer itself. 
 
 It is a right existing for the purpose of discovery alone 
 and does not depend on, nor will be aided by a title to 
 possess the documents themselves. 
 
 It may happen that a suit is instituted for the purpose 
 of obtaining possession of documents, alleged to be im- 
 properly 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 
 
 1 An affidavit in support of a motion for the production of books of ac- 
 count and papers, should specify or refer to some particular entry or paper, 
 or state some fact or circumstance to show the necessity of an inspection : 
 Phelps r. Platt, 54 Barb. (X. Y.) 557. 
 
 Such affidavit should be made by the plaintiff, or if by the attorney, some 
 reason therefor should be shown : Ibid. 
 
 2 Carpenter v. Benson, 4 Sandf. Ch. 496. Therefore, where exceptions 
 would not be sustained, if the bill called for a full statement, production 
 will not be required, though the custody of the documents is admitted; as 
 where an answer under oath is waived : Ibid.
 
 78 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 documents on 
 inspection, will or may afford evidence to sustain his claim, 
 he has a further right to their production on the general 
 principles of discovery ; but, unless he can require them 
 on that ground, the mere fact that he claims them as his 
 own, will not entitle him to see them, until after the 
 decree, (e) 
 
 It is regulated by the same principles which regulate 
 the right to discovery in the answer itself. 
 
 !"*1 41 * i mme diate consequence of this doctrine is, 
 that the right to production must be shown from 
 admissions in the answer, and cannot rest on extrinsic 
 evidence. The question is not, whether the allegations 
 in the answer are true or false ; for, to try that question, 
 would require a hearing of the cause ; but it is whether, 
 in respect of the plaintiff's right to discovery, the docu- 
 ments are necessary to make the discovery complete. If, 
 therefore, the defendant does not admit their possession, 
 or their relevancy to the plaintiff's case, the production 
 cannot be enforced. 1 The same result will follow, if they 
 are uncertainly described, so that the Court cannot ascer- 
 
 (e) Wigr. on Discovery, s. 295-298 ; [Snoddy v. Finch, 9 Rich. Eq. 355.] 
 
 1 Upon a motion for the production of documents, the court will not re- 
 ceive evidence extraneous to the answer, to show that a particular docu- 
 ment had been fraudulently omitted from the schedule, although the de- 
 fendant does not object to the extraneous evidence, and has adduced 
 evidence to contradict it: Reynell v, Sprye, 1 De G. Macn. & Gord. 656. 
 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 : Robbins v. Davis, 1 
 Blatchf. 238.
 
 OF DISCOVERY. 79 
 
 tain to what its order should apply, (/) If the bill con- 
 tained interrogatories to elicit the requisite admissions, 
 and the answer has failed to give them, it may be open to 
 an exception for insufficiency; or if the interrogatories have 
 been inadequately framed, their inadequacy may render 
 an amendment 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. 1 
 
 The documents must be in the defendant's possession 
 or power. And for this purpose, it is sufficient that they 
 are admitted to bel'ong 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, 
 
 (/) Inman v. Whitley, 4 Bea. 548 ; Tipping v. Clark, 2 Hare 383, 389. 
 
 (g) Ex parte Shaw. Jac. 270 ; Morrice . Swaby, 2 Bea. 500 ; [Lady Beres- 
 ford r. Driver, 14 Beav. 387 ; Robbins c. Davis, 1 Blatchf. C. C. 238. See 
 ante, note to p. 12.] 
 
 1 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 plaintiff's title, 
 but he is bound -distinctly to negative the allegations of the bill : Att.-Gen. 
 . Corp. of London, 2 Macn. & Gord. 1. A denial, under oath, of the rele- 
 vancy 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 . Lewis, 22 L. J. Ch. 906 
 
 2 Where deeds are in the possession of the solicitor of two tenants in 
 common, it was held that one of the tenants could not be compelled to 
 produce them in a suit to which the other tenant was not a party : Edmonds 
 v. Foley, 30 BeaT. 282.
 
 80 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 
 r#i fn ^person not present has an interest in the docu- 
 ment, which the Court cannot deal with.(Vj) 1 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 docu- 
 ments are important to their interests will not prevent 
 their production. (i) 2 
 
 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 protected 
 classes; and they must be material to the plaintiff's case. 
 Their character on these points must be learnt from the 
 answer. If the answer, by its want of distinct allegation, 
 leave the right to protection doubtful, the omission may 
 be supplied by affidavit; or, if part only of the document 
 is entitled to protection, the defendant may seal up such 
 
 (h) Taylor v. Rundell, Cr. & P. 104 ; Murray v. Walter, Or. & P. 114 ; 
 ' [Morrell v. Wooten, 13 Beav. 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. 
 
 1 Where possession of documents is admitted by two defendants, one of 
 whom dies, production cannot be enforced in the absence of his represen- 
 tatives: Robertson v. Shewell, 15 Beav. 277. See also Warwick v. Queen's 
 College, L. R. 4 Eq. 254. 
 
 2 A defendant cannot refuse to produce priva'.e and confidential letters 
 from a stranger, on the ground that the writers forbid their publication ; 
 but the plaintiff will be put on an undertaking not to use them for any 
 collateral object: Hopkinson v. Lord Burghley, L. R. 2 Ch. 447.
 
 OF DISCOVERY. 81 
 
 parts as he shall swear by affidavit to be of a protected 
 character. (#) 1 If, however, the uncertainty be not 
 remedied by affidavit, or if the answer contradict itself 
 or be palpably incredible, production may be enforced, 
 to ascertain the truth. (I) 2 
 
 It will be observed that, in order to entitle the plaintiff 
 to have a document produced, it is sufficient to show that 
 it is material to his own case. His right will not be ex- 
 cluded because it happens to be evidence for the defend- 
 ant also.(wz) 3 But if it be not relevant as affirmative 
 evidence for himself, he will not be entitled to inspect his 
 
 (k) Llewellyn v. Badeley, 1 Hare 527 ; Curd v. Curd, 1 Hare 274 ; 
 [Bobbins r. Davis, 1 Blatch. C. C. 238.] 
 
 (1) Bowes r. Fernie, 3 M. & C. 632; Latimer v. Xeate, 11 Bligh 112; 4 
 Cl. & F. 570 ; Bannatyne v. Leader, 10 Sim. 230. 
 
 (m) Burrell r. Nicholson, 1 M. & K. 680. 
 
 1 If a plaintiff prays for an order on a defendant to produce books and 
 papers, the Court may, as a condition precedent, require the plaintiff to 
 undertake not to communicate the contents improperly. An injunction 
 will lie to restrain him: O'Connor v. Tack, 2 Brews. (Pa.) 407. 
 
 2 For instances in which the Court refuses to compel the production of 
 privileged documents, the student is referred to Enthoven v. Cobb, 5 De G. 
 & Sm. 595 (affirmed on appeal), in 2 De G., M. & G. 632, and Reynolds v. 
 Godlee, 4 K. & J. 88. In these instances the documents protected were 
 cases stated, and opinions of counsel thereon. And the rule is the same 
 where the defendant claims to resist discovery on the ground of being a 
 purchaser for valuable consideration without notice: Hunt v. Elmes, 27 
 Beav. 62. 
 
 * Att.-Gen. r. Corp. of London, 2 Macn. & Gord. 247. The defendant in 
 such case must distinctly negative the ground on which the plaintiff claims 
 inspection of the document, in order to protect himself: Ibid. The de- 
 fendant may also be compelled to set forth whether he has not made certain 
 allegations of title, though not whether those allegations 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 protect himself from discovery, on the 
 ground of disclosing the evidence of his title, where his only allegation of 
 title is negativing that of the p aintiff : Att.-Gen. v. Corp. of London, 2 
 Macn. & Gord. 247. 
 6
 
 82' ADAMS'S DOCTRINE OF EQUITY. 
 
 adversary's evidence, merely because on inspection it may 
 prove defective, (n) It is otherwise if the bill alleges 
 psqe-j 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. (0) 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 satisfactorily displaced the charge, (p) 
 
 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 re- 
 fusing it, an order for that purpose is almost of course. 1 
 It has indeed been contended to be of absolute right in 
 respect of the maxim that "he who answers at all must 
 answer fully," and it has been argued that, in accordance 
 with the maxim, wherever the possession and character 
 of the documents are admitted, no denial by answer of 
 
 (n) Bolton v. Corporation of Liverpool, 3 Sim. 467 ; 1 M. & K. 88 ; 
 Llewellyn v. Badeley, 1 Hare 527. 
 
 (o) Smith v. Beaufort, 1 Hare 507 ; 1 Ph. 209 ; Coombe v. Corporation 
 of London, 1 N. C. C. 631. 
 
 (p) Kennedy v. Green, 6 Sim. 7; Wigr. on Discovery, s. 311. 
 
 11 The petition for an order of production must designate, with reasonable 
 certainty, the books and papers called for : Williams v. Williams, 1 Maryl. 
 'Ch. Dec. 201 ; Williams v. Savage Man. Co., 3 Id. 306. The defendant, 
 though treated as plaintiff's agent, has no right to be present at the in- 
 spection of the documents : Bartley v. Bartley, 1 Drewry 233. 
 
 The general rule is that the defendant's books in daily use are to be 
 produced at his place of business : Mertens v. Haigh, Johns. 735.
 
 OF DISCOVERY. 83 
 
 the plaintiff's equity, however full and explicit, will ex- 
 cuse from production. This view, however, seems to be 
 incorrect; for although the fitness of production, so far 
 as it depends on the character of the documents, is de- 
 termined 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 discover their con- 
 tents 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 ac- 
 cording to the requirements of the bill. If the contents 
 had been asked *for, the defendant might have 
 been compelled to plead, and might have adopted L -I 
 that course to avoid the technical rule. But there is no 
 such requisition in the bill ; and therefore, if the plain- 
 tiff's equity be effectually displaced by the answer, the 
 mere technical rule that an answer must be full, does not 
 apply to the production of documents.^) 1 
 
 (q) Adams . Fisher, 3 M. & C. 526 ; Wigr. on Discovery, s. 148-185 } 
 Lancaster v. Evors, 1 Ph. 349. 
 
 1 Where discovery is sought in relation to matters in which the plaintiff 
 has no interest, except consequential or resulting from a character 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 : Stainton v. Chadwick, 3 Macn. & Gord. 575. It seems that a 
 defendant cannot protect himself from discovery, on the ground of its dia- 
 closing the evidence of his title, where his only allegation of title is a
 
 84 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 con- 
 tain, nor is alleged to contain, any evidence of the plain- 
 tiff's case. A mere reference to the document as existing, 
 and as constituting a portion of his own evidence, will not 
 expose him to this liability; but if he professes to set out 
 its contents, or to give an abstract of it, referring for veri- 
 fication 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) 
 
 (r) Hardman v. Ellames, 2 M. & K. 732; Latimer v. Neate, 11 Bligh, 
 112; Adams v. Fisher, 3 M. & C. 526, 548 ; Att.-Gen. v. Lambe, 3 Y & C. 
 171 ; Phillips v. Evans, 3 N. C. C. 647 ; Wigr. on Discovery, s. 385, 424. 
 
 negativing that of the plaintiff: Att.-Gen. v. Corp. of London, 2 Macn. & 
 Gord. 247. But if the plaintiff's title is denied, and the answer states 
 positively that the documents in the defendant's custody relating to matters 
 in the bill will not show that title, the Court will not order their produc- 
 tion ; 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 possession 
 of certain documents, denied that these documents would show the facts 
 to be as the plaintiff alleged them, the Court ordered the production 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, dis- 
 covery 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 sup- 
 posed that the case in question was intended 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 
 ordinary discovery and the production of documents : Swinborne v. Nelson, 
 ut sup.
 
 OF DISCOVERY 85 
 
 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 entitled in his 
 turn to an answer on oath, so soon as he has answered the 
 original bill. 1 If, however, the plaintiff's title be made 
 out by documents, the production of which is material for 
 making out the defence, the right of filing a cross-bill 
 would 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 ex- r-%-, ^-i 
 cuse 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/. 
 
 1 When defendant seeks the discovery of books and papers in the pos- 
 session of the plaintiff, he should file a cross-bill : Bogert c. Bogert, 2 Edw. 
 Ch. 399. See also as to cases in which it is proper to file cross-bills : White 
 c. Buloid, 2 Paige Ch. 164 ; Cloud v. Hamilton, 3 Yerg. 81 ; Tarleton v. 
 Vietes, 1 Gilm. 470-; Josey v. Rogers, 13 Geo. 478. A cross-bill is 
 merely a defence, and cannot be the foundation of a decree concerning 
 matters not embraced in the original writ : Gallatian v. Erwin, Hopk. 48 5 
 Draper v. Gordon, 4 Sandf. Ch. 210 ; Gallatian v. Cunningham, 8 Cowen 
 361, s. c. ; Field v. Schieffelin, 7 John. Ch. 252 ; May v. Armstrong, 3 
 J. J. Marsh. 262. See remarks of Kent, Ch., as to cross^bills, in Field . 
 Schieffelin, 7 John. Ch. 252. Time for answering may be enlarged for 
 the purpose of bringing in a cross-bill : Josey v. Rogers, 13 Geo. 478 ; 
 Primmer v. Patten, 32 Illinois 528. The Rules of Equity Practice adopted 
 by t-ie Supreme Court of Pennsylvania in 1865 provide that specific inter- 
 rogatories to the defendants shall not be included in the bill, but shall be 
 filed separately (Rule 39), and that cross-bills for discovery only shall not 
 be allowed, but the defendant shall be at liberty instead thereof to file 
 interrogatories to the plaintiff (Rule 4t). A similar rule as to cross-bills 
 had been previously adopted in England by statute 15 & 16 Vic. c. 86, \ 19.
 
 86 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 inspection of 
 such second note. It was ordered that the defendants 
 should not be compelled to answer, till a fortnight after 
 the production of the second note. For the purpose how- 
 ever 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 need- 
 lessly compelling a production. The validity of the doc- 
 trine is still uncertain. It has 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 support it.(s) 1 
 
 The jurisdiction of the Greal 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 
 > 
 
 (s] Princess of Wales v. Lord Liverpool, 1 Sw. 114; Taylor v. Heming, 
 4 Bea. 235 ; Milligan v. Mitchell, 6 Sim. 180 ; Penfold v. Nunn, 5 Sim. 
 405 ; Bate v. Bate, 7 Bea. 528. 
 
 1 To entitle a plaintiff in a cross-bill to a stay of proceedings in the 
 original bill, until the cross-bill has been answered, the cross-bill must be 
 sworn to positively, either by the plaintiff, or by the person from whom 
 his information is derived : Talmage v. Pell, 9 Paige Ch. 410 ; White v. 
 Buloid, 2 Paige 164.
 
 OF DISCOVERY. 87 
 
 itself unable to enforce discovery. 1 But discovery will 
 not be enforced to aid a proceeding before arbitrators, or 
 before an inferior court. And it has also been refused in 
 regard *to proceedings in the Ecclesiastical Court, p*-, Q-, 
 But the true reason in this latter case is that it is 
 not wanted, for the Ecclesiastical Cgurt itself can compel 
 an answer. Discovery; has been enforced in one instance 
 to aid the jurisdiction of a foreign Court ; but the pro- 
 priety of such enforcements seems open to doubt. (t) 2 
 
 In order to entitle himself to such discovery, the plain- 
 tiff 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. (u) 3 And therefore, when a bill was filed 
 
 (t) Mitf. 53, 186, 225 ; Earl of Derby v. Duke of Athol, 1 Ves. Sen. 202, 
 205 ; Bent v. Young, 9 Sim. 185. 
 (u) Mitf. 191. 
 
 1 March . Davison, 9 Paige 580 ; Lane v. Stebbins, Id. 622 ; Atlantic 
 Ins. Co. v. Lunar, 1 Sandf. Ch. 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 a bill of discovery 
 merely to procure such admissions as might be used in mitigation of dam- 
 ages, quaere f Gelston v. Hoyt, 1 John. Ch. 543. 
 
 * In New York, it has been decided that a bill of discovery will be sus- 
 tained to aid the prosecution or defence of a civil suit in a foreign tribu- 
 nal : Mitchell u. Smith, 1 Paige 287. 
 
 3 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 r. Farmer. Where one has an inter- 
 est 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. Where a demand for a discovery is 
 merely colorable the court will refuse to take jurisdiction : Jones v. 
 Bradshaw,-16 Gratt. (Va.) 355.
 
 88 ADAMS'S DOCTRINE OF EQUITY. 
 
 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.(f) Where the 
 plaintiff alleges in his bill a sufficient case at law, it has 
 been doubted to what extent discovery can be resisted, 
 by pleading matters which would be a defence at law. 1 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 
 proposition, however, thus widely expressed, does not 
 seem consistent with later decisions. And the true prin- 
 ciple appears to be that, if "the legal defence is of a char- 
 acter showing that the discovery would have no bearing 
 on the issue at law, it will be a sufficient answer to the 
 bill. 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, (w) 2 
 
 () Mitf. 187. 
 
 (w) Hindman v. Taylor, 2 B.C. C. 7 ; Robertson v. Lubbock, 4 Sim. 
 161, 172 ; Scott v. Broadwood, 2 Coll. 447 ; Hare on Discovery 47-60. 
 
 1 As a general rule, when a complainant is entitled to relief, he is also 
 entitled to a discovery of the facts upon which his right to relief is based : 
 Metier v. Metier, 4 Green (N. J.) 457. 
 
 8 Leggett v. Postley, 2 Paige 599 ; March v. Davison, 9 Paige 580; Lane 
 v. Stebbins, Id. 622 ; Deas v. Harvie, 2 Barb. Ch. 448 ; Seymour v. 
 Seymour, 4 Johns. Ch. 409 ; Lucas v. The Bank of Darien, 2 Stewart 
 280 ; Bailey v. Dean, 5 Barb. S. C. 297 ; Gelston v. Hoyt, 1 John. Ch. 
 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 
 569. 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
 
 OF DISCOVERY. 89 
 
 *A bill thus filed for enforcing discovery in aid r#onn 
 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 
 which are called bills for relief, or more correctly, for dis- 
 covery and relief. If the relief be attainable in a different 
 Court, the mere fact that the discovery is requisite will 
 not alter the jurisdiction. The Court of Chancery will 
 enforce the discovery, but the relief must be sought before 
 the appropriate tribunal. 1 
 
 some sufficient 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 & Daw- 
 son, 2 Dessau. 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. Ch. 355, 
 402 ; Foltz v. Pourie & Dawson, 2 Dessau. 40 ; Cowman v. Kingsland, 4 Edw. 
 Ch. 627. But if equity has concurrent jurisdiction, in such case, and the 
 defendant neglect to interpose the objection by demurrer, and answers on 
 the merits, the jurisdiction wiil be sustained, notwithstanding a judgment 
 at law : Endicott . Penny, 14 Sm. & Marsh. 144. 
 
 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. (Tenn.) 74. 
 
 The joinder of defendants in separate actions or of separate suits at law 
 in the same bill of discovery, is inadmissible : Broadbent . State, 7 Maryl. 
 416 ; MacDougald v. Maddox, 17 Geo. 52. 
 
 1 A bill for discovery alone may be maintained, 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 : Benyon v. Net- 
 tlefold, 3 Macn. & Gord. 94 ; Manning v. Drake, 1 Mann. (Mich.) 34. A 
 bill for discovery in aid of an action, must show affirmatively that the 
 plaintiff's right cannot be established at law, without aid of the discovery 
 which he seeks : Stacy v. Pearson & Bobbitt, 3 Rich. Eq. 148 ; Merchants' 
 Bank v. Davis, 3 Kelley 112; Williams v. Harden, 1 Barb. Ch. 298 ; Nor- 
 wich, &c., R. R. Co. v. Storey, 17 Conn. 364 ; Lindsley v. James, 3 Cold. 
 (Tenn.) 477; though in Peck . Ashley, 12 Met. 478, it was held that 
 discovery may be enforced notwithstanding the absence of such allega- 
 tion, 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 where 
 the plaintiff is destitute of other evidence, but also to aid or render it
 
 90 ADAMS'S DOCTRINE OF EQUITY. 
 
 The discovery obtained by a bill in equity is only 
 available against the answering defendant. 1 It cannot be 
 read as evidence against a co-defendant, unless he refers 
 to it by his answer as correct, or is so connected with the 
 answering party as to be bound, under the ordinary rules 
 
 unnecessary : Stacy v. Pearson & Bobbitt, 3 Rich. Eq. 148 5 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 cognisance of equity, and where there is adequate remedy at law, a 
 bill for discovery merely, can alone be sustained ; and that if the bill fur- 
 ther pray relief, special or general, the whole is demurrable : Story, Eq. 
 Jur. I 69, 70 ; Equity Plead. 312 ; Foley v. Hill, 2 H. L. Cas. 37. But 
 in the United States, a more convenient and reasonable doctrine generally 
 obtains in such cases, and where the discovery 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 : Story 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 ; Holmes v. Holmes, 36 Verm. 525 ; but in New 
 Jersey this rule has not been adopted. See Little v. Cooper, 2 Stockt. 273. 
 If, however, a jury is necessary to determine the extent of the relief, dis- 
 covery will be enforced, and the case then sent to law : Lynch v. Sumrall, 
 
 1 A. K. Marsh. 468. In a bill for discovery, the general prayer " for such 
 other and further relief as equity and good conscience may require," &c., 
 is referrable only to the main purpose of the bill discovery : Williams v. 
 Row, 12 P. F. Smith 118. 
 
 1 As a general rule, the answer of one defendant cannot be used as evi- 
 dence against his co-defendant : Leeds v. Marine Ins. Co. of Alexandria, 
 
 2 Wheaton 380; Osborne v. Bank of United States, 9 Id. 738; Van 
 Reimsdyk v. Kane, 1 Gallis. 630; Robinson v. Sampson, 23 Maine 388; 
 Cannon v. Norton, 14 Verm. 178; Conner v. Chase, 15 Id. 764; Grant 
 v. U. S. Bank, 1 C. C. E. 112 ; Phoenix v. Ingraham, 5 John. 412 ; Pettit . 
 Jennings, 2 Rob. (Va.) 676 ; Holloway v. Moore, 4 S. & M. 594; Felch . 
 Hooper, 20 Maine 159; Singleton v. Gayle, 8 Porter 270; Webb v. 
 Pell, 3 Paige Ch. 368 ; Judd v. Seaver, 8 Id. 548 ; Dykers v. Wilder, 
 
 3 Edw. Ch. 496 ; Hayward v. Carroll, 4 Har. & J. 518 ; Stewart v. 
 Stone, 3 Gill & J. 510 ; Calwell v. Boyer, 8 Id. 136 ; and in numerous 
 other cases.
 
 OF DISCOVERY. 91 
 
 of law, by his declarations or admissions, (x) If there- 
 fore 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, dis- 
 covery is needless, and as against the other parties, it 
 would be unavailing. In like manner, if the bill be for 
 discovery alone, no person, can be made a defendant who 
 is not a party to the record at law. There is an excep- 
 tion however in the case of suits against corporations ; and 
 in such suits it is allowable to join the officers or members 
 personally as defendants, in order that they may give dis- 
 covery on oath, which the corporate body cannot do.(y) 1 
 As against the defendant himself, if he be not under 
 incapacity, the answer is evidence. If the plaintiff does 
 not reply to it, and thus give him an opportunity of veri- 
 fication by evidence, the whole answer must be taken as 
 true. 2 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 remainder p^i -, 
 to be read, except so far as it is explanatory of 
 the portion used.(0) The defendant, however, is so far 
 
 (z) Mitf. 188 ; Anon., 1 P. W. 301 ; Chervet . Jones, 6 Mad. 267 ; Crosse 
 v. Bedingfield, 12 Sim. 35 ; Green v. Pledger, 3 Hare 165. 
 
 (y) Mitf. 188 ; Kerr . Rew, 5 M. & C. 154 ; Glasscott v. Copperminers' 
 Company, 11 Sim. 305, 314. 
 
 (z) Bartlett v. Gillard, 3 Russ. 149, 156 ; Freeman v. Tatham, 5 Hare 
 329 ; East r. East, 5 Hare 343 ; [see Glenn v. Randall, 2 Maryl. Ch. 220.] 
 
 1 Lindsey v. James, 3 Cold. (Tenn.) 477. 
 
 3 Fant v. Miller, 17 Gratt. (Va.) 187. This does not apply where an 
 answer under oath is waived : Tomlinson v. Lindley, 2 Carter (Ind.) 569. 
 Where the bill calls for answer not under oath, the jurat of the answer 
 will be stricken out, and the answer considered as not sworn to : Sweet v. 
 Parker, 22 X. J. Eq. 453. Where the plaintiff calls on the defendant 
 to answer the allegations of the bill he makes defendant a witness for that 
 purpose and for no other : Eaton's Appeal, 16 P. F. Smith 483 ; see also, 
 Hart v. Freeman, 42 Ala. 567.
 
 92 ADAMS'S DOCTRINE OF EQUITY. 
 
 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. 1 
 If there are corroborative circumstances 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.(J) 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 
 
 (a) Connop v. Hayward, 1 N. C. C. 33 ; McMahon v. Burchell, 2 Ph. 
 127. 
 
 (6) East India Company . Donald, 9 Ves. 275 ; Savage v. Brocksopp, 
 18 Ves. 335. 
 
 1 When the facts alleged in the complainant's bill are denied in the an- 
 swer, it is a general principle 1 that they must be proved by two credible 
 witnesses, or one witness and strong corroborating circumstances : Swift 
 v. Dean, 6 Johns. 523 ; Clason v. Morris, 10 Id. 524 ; Atkinson v. Manks, 
 1 Cow. 691 ; Stafford . Bryan, 1 Paige Ch. 239 ; Chance v. Teeple, 3 
 Green Ch. 173 ; McDowell v. Bank of Wilmington and Brandywine, 1 liar- 
 ring. 369 ; Beatty . 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 ; Littel v. Mclver, 1 Bibb. 203 ; Paulling v. Sturgus, 3 Stewart 
 95 ; Neale . Hagthrop, 3 Bland. 551 ; Hughes v. Blake, 6 Wheaton 453 5 
 Union Bank v. Geary, 5 Pet. 99 ; Page v. Page, 8 N. H. 187 ; Daniel v. 
 Mitchell, 1 Story 173 ; Myers v. Kenzie, 26 111. 36 ; White v. Hampton, 10 
 Iowa 238 5 and many other cases. /
 
 OF DISCOVERY. 93 
 
 that such tender has been made is not sufficient to save 
 costs. Nor can the answer of a mortgagor be read against 
 a mortgagee to deprive him, on the ground of 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. 1 The costs 
 also of such an answer are subject to a different rule from 
 those of an answer to a bill *for relief. In the 
 one case the costs of discovery are a portion of 
 the costs in the cause, and are disposed of in that charac- 
 ter 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 jurisdic- 
 tion 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 de- 
 fence in equity ; so that in a suit of this class the answer, 
 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 
 
 (c) Howell v. George, 1 Mad. 1 ; Milnes v. Davidson, 3 Mad. 374 ; Wright 
 v. Jones, C. P. Coop. 493. 
 
 1 Hart r. Freeman, 42 Alab. 567 ; Fant v. Miller, 17 Gratt. (Ya.) 187. 
 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 ; Holmes v. 
 Holmes, 36 Verm. 525 ; Shotwell v. Smith, 20 N. J. Eq. 79.
 
 94 ADAMS'S DOCTRINE OF EQUITY. 
 
 the answer to a cross-bill for discovery only may be read 
 and used in the same manner and under the same restric- 
 tions 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] 
 
 (d] 42d Order of August, 1851 ; 125th Order of May, 1845.
 
 COMMISSIONS TO EXAMINE WITNESSES. 95 
 
 *CH AFTER II. [*23] 
 
 ON COMMISSIONS TO EXAMINE WITNESSES ABROAD; OF PER- 
 PETUATION OF TESTIMONY AND OF EXAMINATIONS DE BENE 
 ESSE. 1 
 
 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 pro- 
 curement of evidence to be used elsewhere, without itself 
 deciding on the result, viz., in suits for a COMMISSION TO 
 EXAMINE WITNESSES ABROAD, and in suit 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. 
 
 1 Courts of Chancery in the United States, and courts of law, exercising 
 chancery powers, are in the constant practice of entertaining jurisdiction 
 of bills for the perpetuation of testimony, issuing commissions for the ex- 
 amination of witnesses abroad, and of permitting testimony to be taken de 
 bene 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. Bundy, 6 Paige 432 ; Brown v. Southworth et al., 9 Id. 
 351 ; Lingan v. Henderson, 1 Bland 236 ; Jerome et al. 0. Jerome, 5 Conn. 
 352 ; In the matter of Isaac L. Kip, 1 Paige Ch. 601 ; Fort v. Ragusin, 
 2 Johns. Ch. 146 ; Rockwell r. Folsom, 4 Id. 165 ; Renwick . Renwick, 
 10 Paige Ch. 420 ; Bush v. Vandenbergh, 1 Edw. Ch. 649 ; Phelps & 
 Spafford v. Curtis, 1 Green Ch. 387 ; Stubbs v. Burwell, 2 Hen. & M. 536 ; 
 Chapman r. Chapman, 4 Id. 426; Oliver v. Palmer, 11 Gill & J. 4:2": 
 Kincheloe v. Kincheloe, 11 Leigh 393; Gordon v. Watkiris et al., 1 S. & 
 M. Ch. 37 ; Story on Eq. Plead., Ch. VII. ; Baxter v. Farmer, 7 Ired. Eq. 
 239.
 
 96 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 re quired, (a) 
 
 The jurisdiction in suits to PERPETUATE TESTIMONY 
 arises where the fact, to which the testimony relates, can- 
 not 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 
 r*241 * w ^ n disturbance at a future time, (b) 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 office, 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 hap- 
 pening of such event, shall be entitled to file a bill to 
 perpetuate any testimony which may be material for es- 
 tablishing 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 
 
 (a) 1 Wm. 4, c. 22, s. 4 ; Grinnell v. Cobb'old, 4 Sim. 546. 
 
 (b) Mitf. 51 ; 1 Mad. Ch. Practice 253 ; Dursley v. Fitzhardinge, 6 Ves. 
 251 ; Angell v. Angell, 1 S. & S. 83. 
 
 (c) Earl of Belfast v. Chichester, 2 J. & W. 439 ; Townshend Peerage 
 Case, 10*01. & F. 289 ; 5 & 6 Viet. c. 69.
 
 COMMISSIONS TO EXAMINE WITNESSES. 97 
 
 to an important fact, there is reason to apprehend that, 
 before the regular opportunity arrives, material evidence 
 may be lost. This is called an examination de bene esse; 
 and the depositions taken under it can only be read, if the 
 party seeking the benefit of them has used all diligence to 
 examine in the ordinary course, but there has been a 
 moral impossibility of his so doing, (d) The same course 
 may be pursued where a similar danger exists in reference 
 to an action at law; and a bill may be entertained for an 
 auxiliary examination de bene esse, provided there be 
 annexed to it an affidavit of the circumstances which 
 render such examination necessary, (e) The principle on 
 which this affidavit is required, where the matter is capa- 
 ble 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 permitted on the bare allegation of a plaintiff. The 
 same principle is applied, as *we shall hereafter 
 see, where a bill is filed, in respect of an instru- 
 ment on which an action at law would lie, alleging that it 
 is destroyed or lost, or is in the defendant's custody, to 
 obtain relief which, but for such circumstances, might be 
 had at law.(/) 
 
 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 bene esse, 
 is in all material points similar to that adopted in the 
 ordinary examination in a cause. 
 
 In a suit, however, to Perpetuate Testimony, the cause 
 
 (d) Frere v. Green, 19 Ves. 320; Hope v. Hope, 3 Bea. 317; Mclntosh 
 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. 
 
 (f) Post. Re-execution of Lost Instruments.
 
 98 ADAMS'S DOCTRINE OF EQUITY. 
 
 does not proceed beyond the examination of the witnesses. 
 When that has been completed it is considered at an end ; 
 and the only remaining step is the publication of the evi- 
 dence. This is effected by an order of the Court; but 
 such an order cannot be obtained except for the purpose 
 of a suit or action, nor even for that purpose during the 
 lifetime of the witnesses, unless on special grounds, show- 
 ing that their examination is morally impossible. (g) l 
 
 The same principle applies to depositions taken dc Icne 
 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 published., 
 and that the officer attend with and produce to the Court 
 of law the record of the whole proceedings ; and that the 
 parties may make such use of the same as by law they 
 can.(7z) 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, (t) 
 
 ( g) Morrison v. Arnold, 19 Ves. 670 ; [Barnsdale v. Lowe, 2 Russ. & M. 
 142.] 
 
 (h) Attorney-General v. Ray, 2 Hare 518. 
 (i) Morris v. Morris, 2 Ph. 205. 
 
 1 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; Wright v. Tatham, 2 Sim. 
 459.
 
 7"' 
 
 BOOK II. 
 
 OF THE JURISDICTION OF THE COURTS OF EQUITY, IN CASES 
 IX WHICH THE COURTS OF ORDINARY JURISDICTION CAN- 
 NOT ENFORCE A RIGHT. 
 
 *CH AFTER T. [*26] 
 
 OF TRUSTS, BOTH ORDINARY 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 inadequacy 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 administer it. 
 
 It has been already stated in the Introduction, that the 
 equities under the first head of this division, viz., where 
 the Courts of ordinary jurisdiction cannot enforce a right, 
 are those for performance of trusts and contracts, for elec- 
 tion between inconsistent benefits, for completion of gifts 
 on meritorious consideration in favor of the donor's inten- 
 tion after his death, for giving effect to discharges by 
 matter in pen's of contracts under seal, for relief against 
 penalties and forfeited mortgages, for re-execution or cor- 
 rection of instruments which have been lost or erroneously
 
 100 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 irre- 
 parable 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. 
 
 The principal advantage of a conveyance on trust is, 
 that it enables the owners of property to effectuate dis- 
 positions of a more complex character than is consistent 
 with the machinery of conveyances at law ; and that it 
 also affords the means of protecting infants and other in- 
 capacitated 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 inconvenience 
 and risk, because it makes the cestui que trust's security in 
 some degree dependent on a trustee who has no beneficial 
 interest, and may enable a fraudulent 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 in- 
 stances recognised even at law ; and where the trust is 
 created by will, the character of its duties and the nature 
 of the estate required for their performance are allowed 
 to effect the construction of the devise, in reference both 
 to its passing any estate, and also in reference to the ex- 
 tent and duration of the estate passed, (a) But, in so far 
 as a legal , ownership is conferred, it invests the trustee 
 
 (a) 2 Jarm. on Wills 196 ; Adams on Ejectment, 4th ed., 60-65.
 
 ORDINARY AND CHARITABLE TRUSTS. 101 
 
 with absolute dominion at law, and the equitable owner- 
 ship, or right to compel performance of his trust, is only 
 cognisable in the Court of Chancery. 1 
 
 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 presumption 
 of law ; and secondly, that it be accepted on those terms 
 by the trustee. 
 
 The declaration of a trust by the parties is not, inde- 
 pendently of the Statute of Frauds, required to be made 
 or evidenced in any particular way. And therefore, pre- 
 viously *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 ex- 
 plained 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 confidences 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." 2 It will be observed that this 
 
 1 The common law rule still exists as to personalty : Martin . Greer, 1 
 Geo. Decis. 109 ; Lord . Lowry, 1 Bailey's Ch. 510 ; Rice v. Burnett, 
 Spear's Ch. 579; Gordon r. Green, 10 Geo. 534. 
 
 2 This provision is in force in most of the United States. See Hill on 
 Trustees 56, note; Brinnan v. Brinnan, 3 Green (N. J.) 212; Gibson r. 
 Foote. 40 Miss. 788. When the fact that the trust was created by parol
 
 102 ADAMS'S DOCTRINE OF EQUITY. 
 
 act does not require that the trust shall be declared in 
 writing, but only that it shall be manifested and proved 
 by writing. 1 And therefore, if the existence of a trust, 
 together with its precise terms and subject-matter, can 
 be proved from any subsequent acknowledgment, written 
 and signed by the trustee, as by a letter, memorandum, 
 or recital in a deed, it will be sufficient. (b) 2 
 
 (6) 29 Car. 2, c. 3, ss. 7 & 9 ; Gardner v. Howe, 2 S. & S. 346 ; 5 Russ. 
 258. 
 
 only, appears upon the face of the bill, it may be taken advantage of by 
 demurrer; where it does not so appear the Statute of Frauds must be set 
 up by a plea or in the answer. See Hill on Trustees, 61, note. 
 
 1 The distinction alluded to in the text has this practical importance, 
 viz. : that the commencement of the estate of the cestui que trust will not 
 date merely from the execution of the writing by which it is proved, but 
 will relate back to the time of its original creation. Thus where a parol 
 declaration of trust is made in favor of one who afterwards dies, and the 
 trust is after his death declared in writing, the written declaration will be 
 referred back to the date of the parol creation so as to bring the subject of 
 the trust within the scope of the cestui que trust's will : Ambrose v. Am- 
 brose, 1 P. Wms. 322. Rights of bond fide purchasers without notice are 
 of course protected, and the distinction noticed above has been held, after 
 some fluctuation in opinion, not to apply to post-nuptial settlements made 
 in pursuance of ante-nuptial parol agreements. See Hill on Trustees, page 
 57, note 1. In Maine, Massachusetts, and some other states, trusts must 
 be " created and declared" in writing : Hill on Trustees, page 56, note. 
 See also, Movan v. Hays, 1 Johns. Ch. 339 ; Johnson v, Ronald, 4 Munf. 
 77 ; Jackson v. Moore, 6 Cowen 706 ; Flagg v . Mann, 2 Sumn. 486 ; Pinney 
 v. Fellows, 15 Verm. 525 ; 2 Story's Eq., sec. 972. The instrument creating 
 the trust need not be executed by the cestui que trust : Skipwith's Extr. v. 
 Cunningham, 8 Leigh 271. 
 
 2 Any writing, no matter how informal, which declares what the trust is, 
 will satisfy the requirements of the statute : Smith v. Matthews, 3 De G. 
 F. & J. 139 ; Orleans v. Chatham, 2 Pick. 29 ; Hardinu. Baird, 6 Litt. 346 ; 
 Graham v. Lambert, 5 Humph. 595 ; Gomez v. The Tradesman's Bank, 4 
 Sand. S. . 106 ; Wright . Douglass, 3 Selden 564 ; Bragg v. Paulk, 42 
 Maine 502 ; Maxwell v. Whieldon's Adm'r., 10 Gush. 221 ; Massey . Mas- 
 sey, 20 Tex. 134. Where the existence of a trust is shown by writing, 
 parol evidence may, it seems, be let in to show its terms : Reid v. Reid, 
 12 Rich. (S. C.) Eq. 213. See, however, Cook v. Barr, 44 N. Y. 156, and 
 Duffy v. Masterton, Id. 557. See also, Fisher v. Fields, 10 Johns. 495 ;
 
 ORDINARY AND CHARITABLE TRUSTS. 103 
 
 With respect to personal estate, including moneys out 
 on mortgage, the original rule continues, and it is suffi- 
 cient that, either by writing or by word of mouth, there 
 should be a certain declaration of the trust, (e) 
 
 The intention thus evidenced, whether by writing or by 
 parol, to impose a trust on the donee, must be declared 
 with certainty ; and there must also be a certain declara- 
 tion 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 respectively to 
 take. 1 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 
 
 (c) Benbow v. Townsend, 1 M. & K. 506 ; McFadden c. Jenkyns, 1 Hare 
 458 ; 1 Ph. 153. 
 
 Orleans v. Chatham, 2 Pick. 29 ; Dale v. Hamilton, 2 Phil. 266 ; Maccub- 
 bin P. Cromwell, 7 Gill & Johns. 157 ; Steere v. Steere, 5 Johns. Ch. 1 ; 
 Unitarian Soc. v. Woodbury, 2 Shepley 281 ; Walraven v. Lord, 2 Patt. & 
 II. 547 ; Bankhead's Trust, 2 Kay & John. 560 ; Ex parte Boyd, 3 Jurist 
 N. S. 897 ; Pinney v. Fellows, 15 Verm. 525 ; Menude v. Delaire, 2 Dessaus. 
 564: Rutledge v. Smith, 1 McC. Ch. 119; Elliott c. Morris, 1 Harp. 
 Eq. 281 ; Fleming et al. . Donahoe et al., 5 Hammond 256 ; Harrison v. 
 Mennomy, 2 Edw. Ch. 251 ; Slocum v. Marshall, 2 Wash. C. C. 398. 
 
 1 Slocum v. Marshall, 2 Wash. C. C. 398 ; Steere v. Steere, 5 Johns. Ch. 
 1 ; Dorsey . Clarke, 4 H. & Johns. 551 ; Mercer . Stark, 1 Sm. & Marsh. 
 Ch. 479 ; Knight v. Boughton, 11 Cl. & Fin. 513 ; Briggs v. Penny, 3 Macn. 
 & Gord. 546 ; Williams v. Williams, 1 Sim. N. S. 358 ; Smith v. Matthews, 
 3 De G., F. & J. 139. 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. ; Reeves . Baker, 18 Beav. 372 ; and this, it was said in the latter 
 case, may be referred partly to the subject-matter, and partly to the object 
 of the trust, and reduced to one or other of them. The mere use of the 
 words " trust" or " trustee " will not necessarily create a trust: Brown v. 
 Combs, 5 Dutch. 36 ; Hill on Trustees 65, note.
 
 104 ADAMS'S DOCTRINE OF EQUITY. 
 
 affected by the circumstance that it has been declared in 
 the form of a power, enabling the trustee to give the estate 
 to the parties interested, instead of an immediate gift to 
 them : nor by the use of precatory or recommendatory 
 words, instead of more imperative language. And on the 
 other hand, a trust is not necessarily created, because the 
 formal language of a trust is used, if a contrary intent 
 appear from the gift. 1 
 
 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 con- 
 text of the gift establish this latter construction, he has 
 not a discretion whether he will execute his power or not, 
 but if he neglect his duty, the Court will, to a certain 
 extent, discharge it in his stead. It will not, however, in 
 so doing, assume an arbitrary discretion, although such a 
 discretion may have been given to the trustee, but it will 
 adopt such general maxim as under the circumstances 
 appears applicable, e. g., that a fund given for the benefit 
 of " relations" shall be distributed among those who are 
 within the Statute of Distributions, although the donee 
 might have selected out of a wider class. The leading 
 case on this subject is one where leaseholds were be- 
 queathed to a man, with a direction to make certain 
 payments out of the rents : and the testator *em- 
 L J powered him to employ the residue for such of his 
 
 1 Richardson v. Inglesby, 13 Rich. (S. C.) Eq. 59.
 
 ORDINARY AND CHARITABLE TRUSTS. 105 
 
 nephew's children as he should think proper. On the 
 trustee's failure so to employ the residue, it was decreed 
 to be a trust for all the children. 1 There is another class 
 of cases, apparently similar to these, but based on an 
 entirely distinct principle, where a non-compulsory power 
 of appointment has been 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 distinction 
 between the two cases is, that in the one the objects of 
 the power take, notwithstanding the trustee's failure to 
 appoint, because his failure was a neglect of duty ; in the 
 other they take, not because he was bound to appoint, 
 but because it is adjudged, on perusal of the gift, that an 
 express trust was by mistake or carelessness omitted. (d) 2 
 
 (d) Brown v. Higgs, 8 Ves. 561 : Grant v. Lynman, 4 Russ. 292; Bur- 
 roughs v. Philcox, 5 M. & C. 73 ; 2 Sug. on Powers, 7th ed. 157. 
 
 1 See accordingly, Withers v. Yeadon, 1 Rich. Eq. 324 ; Collins v. Car- 
 lisle, 7 B. Monr. 13 ; Gibbs v. Marsh, 2 Metcalf 243 ; Miller r. 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. 
 
 2 A good illustration of the rule of distribution which obtains in default 
 of an execution of a power by a donee in trust, will be found in the case 
 of Salusbury . Denton, 3 K. & J. 529. There a testator gave a fund to 
 his widow, to be disposed of by her as to part to a charity, and as to the 
 remainder among such relations as she should select ; and the widow died 
 without making any disposition of the fund. It was held that the charity 
 was entitled to one moiety, and that the other should be divided among 
 the parties entitled under the Statute of Distributions. See, also, White's 
 Trusts, Johnson 656; Fordyce v. Bridges, 2 Phill. 497, and Brook v. 
 Brook, 3 Sm. & Giff. 280. In Smith v. Bowen, 35 New York 83, there 
 was a devise " to my beloved wife, Martha, to be used and disposed of at 
 her discretion, for the benefit of herself and my three daughters;" and it 
 was held that the words gave one-fourth to the wife absolutely, and, as to
 
 106 ADAMS'S DOCTRINE OF EQUITY. 
 
 The use of precatory or recommendatory words, whether 
 arising from want of due consideration, or from an unwil- 
 lingness to use language implying distrust, or from an in- 
 tention to give a control over the suggested disposition, is 
 not unfrequent in, wills; and we often meet with such 
 expressions as " I recommend," " I entreat," or " I de- 
 sire " that such a thing be done, or " I have no doubt, or 
 well know," that it will be done. 1 In these cases the 
 mere grammatical construction of the words is not suffi- 
 cient to determine whether a trust exists. It is clear 
 that words simply intimating an expectation, provided 
 their object be expressed with sufficient certainty, may 
 operate as imperative on the person to whom they are 
 addressed. But although they may create a trust, yet 
 they have not necessarily that effect. They are in them- 
 selves of a flexible character, and must give way if the 
 r#oi-i imperative construction *be inconsistent with any 
 positive provision in the will, or if it appear from 
 the general context that the testator meant to depend on 
 the justice or gratitude of the donee. The question, 
 therefore, in each particular case is merely of construc- 
 tion on the terms of the instrument. (V) 2 
 
 (e) Wright v. Atkyns, 17 Ves. 255 ; 19 Ves. 299 ; Shaw v. Lawless, 1 
 Lloyd & Goold, 558 ; 5 Cl. & F. 129 ; Knight v. Boughton, 11 Cl. & F. 513 ; 
 Knott v. Cottee, 2 Ph. 192 ; 2 Sug. on Pow. 171. 
 
 the other three-fourths, created a trust in favor of the daughters, which 
 under the statute in New York, was turned into a power in trust. But 
 although a trust will sometimes be created in spite of the failure of the 
 donee of the power to exercise his discretion, yet In re Eddowes, 1 Dr. & 
 Sm. 395, shows that where there is nothing to point out with certainty in 
 whose favor, or in what shares a gift was intended in default of the execu- 
 tion of the power, no trust can be implied. 
 
 1 " Having confidence," Dresser v. Dresser, 46 Maine 48 ; " Wish and 
 will," McRee's Adm'r. v. Means, 34 Alab. 349. 
 
 2 There has been some fluctuation in the modern English authorities, on
 
 ORDINARY AND CHARITABL'E TRUSTS. 107 
 
 The non-creation of a trust in the 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- 
 cided, however, that, notwithstanding the similarity of 
 
 the subject of precatory trusts, and two classes of cases have consequently 
 arisen, one leaning in favor of affecting the conscience of the donee with a 
 trust by the use of recommendatory words, the other having an opposite 
 tendency. Of the former class, instances will be found in Bernard v. 
 Minshull, Johnson 276 ; Shovelton v. Shovelton, 32 Beav. 143 ; Gully v. 
 Cregoe, 24 Id. 185 ; Ward v. Grey, 26 Id. 485 ; Proby v. Landor, 28 Id. 
 504; Liddard v. Liddard, 28 Id. 266 ; Brook's Will, 34 L. J. Ch. 616 ; and 
 Constable v. Bull, 3 De G. & Sm. 411 ; while for examples of the latter 
 class the reader may refer to Briggs v . Penny, 3 Macn. & G. 546 ; John- 
 ston v. Rowlands, 2 De G. & Sm. 356 ; Webb v. Wools, 2 Sim. N. S. 26T ; 
 Reeves v. Baker, 18 Beav. 372, and Hood v. Oglander, 34 L. J. Ch. 528 ; 
 Eaton v. Watts, 5 Eq. L. R. 151. The former class probably includes the 
 more recent and better considered decisions. See, also, the remarks in 
 Hawkins on Wills, page 160. 
 
 In the United States, also, it is impossible to reconcile all the authori- 
 ties. The rule in Pennsylvania is that precatory expressions in a will are 
 not, primd facie, sufficient to create a trust: Pennock's Estate, 20 Penna. 
 St. 268 ; Walker v. Hall, 34 Id. 483 ; Kinter v. Jenks, 43 Id. 445, and Jaur- 
 etche v. Proctor, 48 Id. 466 ; Second Church v. Disbrow, 52 Id. 219 ; 
 Burt v. Herron, 66 Id. 400 ; Van Duyne v. Van Duyne, 1 McCarter (N. J.) 
 397 ; and so in Connecticut: Gilbert v. Chapin, 19 Conn. 351, where the 
 earlier case of Bull v. Bull, 8 Conn. 47, was disapproved ; though even in 
 that state mere discretion in regard to the selection of the objects or the 
 distribution of the subject of a devise is not inconsistent with a trust ; and 
 see Harper v. Phelps, 21 Conn. 257. See, also, Ellis v. Ellis, 15 Alab. 
 296. But a more liberal doctrine as to precatory words has been held in 
 Erickson . Willard, 1 N. H. 217 ; Lucas v. Lockhart, 10 Sm. & Marsh. 
 466 ; Collins v. Carlisle, 7 B. Mon. 14 ; Harrison v. Harrison, 2 Gratt. 1 ; 
 McRee's Adm'r. v. Means, 34 Alab. 349, and Dresser v. Dresser, 46 Maine 
 48 ; Warner v. Bates, 98 Mass. 274 ; Cook v. Ellington, 6 Jones Eq. (N. 
 C.) 371. The student will find this subject discussed in the notes to Hard- 
 ing v. Glyn, 2 Lead. Gas. in Eq. 789.
 
 108 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 cred- 
 itors. The nominal trustee, therefore, is merely his agent; 
 and the nominal trust is only a method of applying his 
 own property for his own convenience^/) 1 
 
 (/) 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; Wild- 
 ing v. Richards, I Coll. 655 ; [Simmonds v. Palles, 2 Johnes & Lat. 489 ; 
 Smith v. Keating, 6 C. B. (60 E. C. L. R.) 136.] 
 
 1 The distinction taken in the text, and for which Garrard v. Lord Lau- 
 derdale is the leading authority, between a voluntary assignment for cred- 
 itors 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 creditors, 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 : Griffiths v. Ricketts, 7 Hare 307 ; liar- 
 land v. Binks, 15 Q. B. (69 E. C. L. R.) 713 ; Smith v. Hurst, 10 Hare 30 ; 
 Acton v. Woodgate, 2 Myl. & K. 495. Where there is an actual execution 
 by the creditors, the trust becomes irrevocable : Mackinnon v. Stewart, 1 
 Sim. N. S. 76 ; see Synnot . Simpson, 5 H. L. Cas. 121 ; Montefiori v. 
 Browne, 7 Ibid. 241 ; Whitmore v. Turquand, 1 Johns. & H. 444 
 
 In the United States, such assignments, before the assent of the benefi- 
 ciaries, have, in some cases, been treated as mere naked powers : Brooks 
 . Marbury, 11 Wheat. 78 ; Watson v. Bagaley, 12 Penna. St. 164 ; yet 
 the general current of authority is clear, that the creditors, on learning of 
 the existence of the trust deed, may proceed at once to enforce it in equity, 
 before becoming formally parties thereto ; Moses v. Murgatroyd, 1 Johns. 
 Ch. 119 ; Shepherd . McEvers, 4 Id. 136 ; Weir . Tannehill, 2 Yerg. 57 ; 
 Pearson v. Rockhill, 4 B. Monr. 296 ; Robertson v. Sublett, 6 Hump. 313 ; 
 Ingram . Kirkpatrick, 6 Ired. Ev. 463 ; Pratt v. Thornton, 28 Maine 355. 
 See Burrill on Assignments 280, 306, for a discussion of this subject. 
 
 Where a firm made a trust deed for the benefit of its creditors, which 
 was duly registered, and afterwards made a second deed revoking the
 
 ORDINARY AND CHARITABLE TRUSTS. 109 
 
 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 declaration, or no 
 sufficient declaration, as to what that channel should be. 
 In this case a trust is implied for the real owner, termed 
 a resulting trust, or trust by operation of law. 1 And 
 such a trust, although relating to real estate, is exempted 
 by a proviso in the Statute of Frauds from the necessity 
 of being declared or evidenced in writing. 2 The enact- 
 ment is, that "where any conveyance shall be made of 
 any lands or tenements by which a trust or con- r*oo-i 
 fidence shall or may arise or result by implication 
 or construction of law, or be transferred or extinguished 
 by act or operation of law, then and in every such case 
 such trust or confidence shall be of the like force and 
 effect as the same would have been if this statute had not 
 been made."(y) 
 
 (g) 29 Car. 2, c. 3, s. 8. 
 
 first, it was held that the rights of the parties to the first deed became fixed 
 and vested by its execution and registration, subject to the election of the 
 beneficiaries as to whether they would accept or reject its provisions, and 
 that the firm had no power to revoke it : Furman c. Fisher, 4 Cold. (Tenn.) 
 626. 
 
 1 It must be borne in mind that resulting trusts of this description arise 
 only upon voluntary dispositions. Where there is a valuable consideration 
 no trust will result so as to defeat the operation of the deed : Brown v. 
 Jones, 1 Atk. 188. See also Ridout v. Dowding, 1 Atk. 419 ; Hill on Trus- 
 tees 179 : Dennis v. McCagg, 32 111. 429. 
 
 1 Resulting trusts are not within the Statute of Frauds in the different 
 states ; nor are they executed by the Statute of Uses. In some states, as 
 in New York, Minnesota and Wisconsin, trusts of this description have 
 been abolished, or confined within narrow limits.
 
 110 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 language 
 of the gift, occur for the most part in dispositions by will. 
 They are not necessarily restricted to such dispositions ; 
 for whenever, in any conveyance or disposition of pro- 
 perty, it is apparent that any beneficial interest was not 
 intended to accompany the legal ownership, 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 circumstance does not often 
 occur. In gifts by will it is not unfrequent. 
 
 In gifts of this class, the bequest of the beneficial in- 
 terest is sometimes intentionally deferred ; as where pro- 
 perty is devised to a trustee " upon trusts to be declared 
 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 de- 
 clared, e. g., for payment of debts, which does not exhaust 
 the whole estate, and the surplus is left without any ex- 
 press disposition. In this latter instance, it may appear 
 by the context of the will, or by the aid of parol evi- 
 dence, that the devisee was intended to take the surplus; 
 but the primd facie inference is, that the creation of the 
 partial trust was the sole object, and that the equitable 
 interest undisposed of is in the nature of a resulting trust. 1 
 
 1 See Flint v. Warren, 16 Sim. 124 ; Onslow v. Wallis, 1 H. & Tw. 513 ; 
 Ralston v. Telfair, 2 Dev. Eq. 255 ; Huston t>. 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 Id. 486 ; Frazier v. Frazier, 2 Leigh 642.
 
 ORDINARY AND CHARITABLE TRUSTS. Ill 
 
 *In all 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 per- 
 sonal, 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 partially 
 illegal or partially fail, or if they require the application 
 of a part only of the land devised, the heir takes so much 
 of the land or of its produce as was destined for the in- 
 effective purpose, or so much as is not required for the 
 purpose of the will. And e converse, if there be a be- 
 quest of personal property for purposes which are alto- 
 gether or partially illegal, or which altogether or partially 
 fail, the next of kin are entitled to it, or to so much of it 
 as cannot or need not be applied to the purposes of the 
 will, (ti) 
 
 Resulting 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 
 
 (h) Collins v. Wakemann, 2 Ves. J. 683 ; Muckleston v. Brown, 6 Ves. 
 52 ; Fowler . Garlike, 1 R. & M. 232 ; Ackroyd v. Smithson, 1 B. C. C. 
 503 ; King v. Denison, 1 Ves. & B. 260; Clark v. Hilton, L. R. 2 Eq. 814 ; 
 Tregonwell v. Sydenham, 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; see Barrs r. 
 Fewkes, 2 Hem. & M. 60 ; 11 Jur. X. S. 669 ; Hill on Trustees 119, note ; 
 Craig v. Leslie, 3 Wheat. 563 ; Burr . Sim, 1 Whart. 263 ; Sheaffer's App. 
 8 Penn. St. 42 ; King . Mitchell, 8 Peters 326 ; Lindsay r. Pleasante, 4 
 Ired. Eq. 320 ; Pratt r. Taliaferro, 3 Leigh 419 ; Wood v. Cone. 7 Paige 
 4~-2 -. Snowhill r. Snowhill, 1 Green Ch. 30; Woodgate r. Fleet, 44 N. Y. 
 1 ; Harrison v. Harrison, 36 N. Y. 543. Infra, Conversion.
 
 112 ADAMS'S DOCTRINE OF EQUITY. 
 
 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. 1 
 
 1 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 pre- 
 viously, 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 supplies 
 the purchase-money : Buck v. Pike, 11 Maine 9 ; Boyd v, McLean, 1 John. 
 Ch. 582 ; Jackman v. Ringland, 4 W. & S. 146 ; Livermore v. Aldrich, 
 5 Cush. 435 ; Frederick v. Haas, 5 Nevada 389 ; Fleming v. McHall, 47 
 111. 282 ; Dryden v. Hanway. 31 Md. 254 ; Millard v. Hathaway, 27 Gal. 
 119 ; Mallory v. Mallory, 5 Bush (Ky.) 464, and a great number of other 
 cases, many of which may be found cited in Hill on Trustees, 4 Am. ed. 
 147, in note. 
 
 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. Crammond, 
 2 Wash. C. C. 441 ; Kirkpatrick v, McDonald, 11 Penn. St. 393 ; Baldwin 
 v. Johnson, Saxton 441 ; Smith v. Ramsey, 1 Gilm. 373 ; Pugh v. Currie, 
 
 5 Alab. 446 ; Edgar v. Donnelly, 2 Munf. 387 ; Martin v. Creer, 1 Geo. 
 Dec. 109; Freeman v. Kelley, 1 Hoff. Ch. 90; Moffitt 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 W. 
 
 6 S. 373 ; Wilhelm v. Folmer, 6 Barr 296 ; McCrory v. Foster, 1 Clarke 
 (la.) 271 ; Eshleman . Lewis, 49 Penn. St. 410 ; Day v. Roth, 18 N. Y. 448 ; 
 Wales v. Bogue, 31 111. 464; Harper v. Archer, 28 Miss. 212; Church v. 
 Sterling, 16 Conn. 388 ; Hutchinson v. Hutchinson, 4 Dessausi 77 ; Follansbe 
 v. Kilbreth, 17 111. 522 ; Bridenbecker v. Lowell, 32 Barb. 9 ; Pugh v. 
 Pugh, 9 Ind. 132 ; Methodist Church v. Wood, 5 Hamm. 283 ; Garrett v. 
 Garrett, 1 Strob. Eq. 96 ; Wallace v. Duffield, 2 S. & R. 521 ; Claussen 
 v. La Franz, 1 Clarke (la.) 226; Schaffner v. Grutzmacher, 6 Id. 137; 
 Reid v. Fitch, 11 Barb. S. C. 399 ; Caplinger v. Stokes, Meigs 175 ; Coder 
 v. Huling, 27 Penn. St. 84 ; Harper v. Archer, 28 Miss. 212 ; Baumgartner 
 v. Guessfield, 38 Mo. 36; Johnsons. Dougherty, 3 Green (N. J.) 406; 
 Harrold v. Lane, 53 Penn. St. 268 ; Beegle v. Wentz, 55 Penn. St. 369 ; Cecil 
 Bank v. Snively, 23 Md. 253. So of a husband purchasing with his wife's 
 separate property : Methodist Church r. Jaques, 1 John. Ch. 450 ; 3 Id. 77 ;
 
 ORDINARY AND CHARITABLE TRUSTS. 113 
 
 This presumption exists in all cases where the convey- 
 ance of a legal estate is made to one who has not really 
 
 Brooks v. Dent, 1 Md. Ch. 523 ; Dickinson v. Codwise, 1 Sandf. Ch. 214; 
 Pinney v. Fellows, 15 Verm. 525 ; Barren v. Barron, 24 Id. 375 ; Pricbard 
 v. Wallace, 4 Sneed 405 ; Resor v. Resor, 9 Ind. 347 ; Miller v. Blackburn, 
 14 Ind. 62; Lathrop v. Gilbert, 2 Stockt. 344 ; Filman v. Divers, 31 Penn. 
 St. 429 ; Kline's Appeal, 39 Id. 463. 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 enforce- 
 ment 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 circum- 
 stances, 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 S. & R. 521 ; Harrisburg Bank 
 r. Tyler, 3 W. & S. 373 ; and in Wallace v. McCullough, 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 consequent de- 
 cree for a sale. But this is contrary to the uniform current of authority 
 in this country, as before stated ; and inconsistent in its practical applica- 
 tion, with the cardinal rule, that no fiduciary can be permitted to profit by 
 a violation of his duties. See note to Woollam v. Hearne, 2 Lead. Gas. 
 in Eq. 404. 
 
 The doctrines with regard to the ordinary resulting trust, are applicable 
 to personal as well as real estate, to choses in action, as stock and annuities, 
 as well as in possession : Sidmouth . 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 . Brown, 
 2 S. &R. 461; Shoemaker v. Smith, 11 Humph. 81; Powell v. Manu- 
 facturing Co., 3 Mason 347 ; Purdy v. Purdy, 3 Md. Ch. 547 ; Letcher 
 v. Letcher, 4 J. J. Marsh. 590 ; Buck v. Swazey, 35 Maine 41 ; but where 
 it was agreed verbally that any one of three persons should buy in and 
 hold for the others, and one bought and paid the purchase-money, it was 
 held that there was no resulting trust : Farnham v. Clements, 51 Maine 
 426 ; Sheldon v. Sheldon, 3 Wis. 699 ; Morey v. Herrick. 18 Penn. St. 129 ; 
 see also, Meason v. Kaine, 63' Penn. St. 335. But the part of the pur- 
 chase-money furnished by one who thus claims a resulting trust must 
 be a definite one : Baker v. Vining, 30 Maine 121 ; Sayre v. Townsends, 
 8
 
 1 M ADAMS'S DOCTRINE OF EQUITY. 
 
 advanced the price. And it is equally applicable \vliHhcr 
 such conveyance be in the name of a stranger only, \vith- 
 
 15 Wend. 047. Though it has been held that the presumption was in 
 (In- lirnt instance, in such case, that tho funds were supplied in cijual 
 proportions by all : Shoemaker v. Smith, 11 Humph. HI. 
 
 In order to create a resulting trust, the money must have been actually 
 paid by Ilic alleged cestui que trust, out of his own or borrowed funds, or 
 Hoeurod to bo paid at or before tho time of the purchase, and cannot be 
 raised by matter ex post facto : Botsford v. Burr, 2 John. Ch. 405 ; Stcere 
 9. Steere, !> Id. 1 1 Freeman v. Kelly, 1 Hoff. Ch. 90; llogers v. Murray. ' 
 Paige ii'.lO ; Foster c. Trustees, .'! Ala. .'!()2 ; Mnhorner r. Harrison. 1M 
 Smedes A: Marsh. 53; Graves v, Dugan, 6 Dana 331 ; Mageo v. .Ma^ee, I 
 Pcnn. St. 405 ; Pago v. Page, 8.N. H. 187 ; Brooks v. Fowlo, 14 1,1. - is -. 
 Conner v. Lewis, 16 Maine 2C8 ; Pinnock v. Clough. 10 Verm. fioo ; llainrs 
 r. O'Connor, 10 Watts 313; Gome/ v. Tradesman's Bank, 4 Sandf. S. C. 
 10(1; r.u.-k r. Swa/.ey, :;;"> .Maim- II; Lym-b r. Cox, '2'.', I'eim. St. 2<lf> ; 
 Olive r. Dougherty, 3 Green (Iowa) 371 ; Irwin v. Ivers, 7 Indiana :;os ; 
 Whiting v. Gould, 2 Wis. . r >. r >2 ; Barnard v. Jewett, 97 Mass. 87; Nixon's 
 Appeal, ('.". I'enii. St. 127'.'. Land purchased with borrowed money does 
 not raise an implied trust in favor of tho creditor: Gibson v. Foote, 40 Miss. 
 7SS. 'I'ln- fund may, however, have been supplied by the nominal purchaser 
 himself on eredii : Page v. 1'ago, 8 N. II. 187; Kmmclls r. Jackson, 1 
 How. (Miss.) 858] Ko^aii r. Walker, 1 Wis. 527; Brooks /-. Kllis, -". Iowa 
 527 ; but in such case the evidence must be very clear : Kendall r. Mann, 
 
 II Allen Lft. 
 
 Tlie facts from which a resulting trust is to be established, may be 
 proved b\ parol, the case being excepted from the Statute of Frauds, though 
 at the same lime tho evidence must bo clear and positive: Botsford r. 
 I'-urr, 2 John. Ch. lo,"> ; Stoere t>. Steere, 5 Id. 1 ; Peebles r. Reading, S 
 S. A K. IS I ; Klliott v. Armstrong, 2 Blaokf. 194; Blair v. Bass, 4 Id. 
 19 . I'nv.h r. Uell, 1 J. J. Marsh. -10.". : Uepeyster r. tumid. '2 (Ireen Ch. 
 I, I. I'a-e r. Pa-.;.-. S N. II. IS7 ; Sh.eun. r. Marshall. 2 Wash. C. C. 397 ; 
 Knos r. Hunter, I (iilman I'll ; Carey r. Callan, (1 B. Monr. 44, and many 
 other eases. In Knglaml, it is \ cry doubtful whether such e> idenee wouKl 
 be admitieil against the answer of the defendant, but it is held in the 
 I'niied Siaie>. ;-,encrall\, that it is so; though it must be extremely clear, 
 and is to be received with tho greatest caution : lioyd r. McLean, 1 John. 
 Ch. K2 : I'.otsfonl r. Burr, 2 Id. 40; ; Buck r. Pike. '2 Fairf. 24 ; Baker r. 
 Vining, 30 Maine 121 , Page v. Page, 8 N. II. 187 . Snellim: v. I tterback. 
 I Uibb t.O'.i ; Lotoher v. Letcher, 4 J. J. Marsh. ,V.)Oj Klliott r. Armstrong, 
 5 Blaokf. I '.IS ; t'.lair r. Ba88, 4 Id. 540 ; Larkins r. IJhodes. f> Porter I'.Hl : 
 jslnsley r. Balontino, 4 Humph. 233; Faringor r. Ramsay, 2 Md. 
 Fauslor v. Jones, 7 Ind. 277 ; Whiting r. Gould, 2 Wis. 552; Osborne c.
 
 ORDINARY AND CHARITABLE TRUSTS. 115 
 
 out mention of the actual purchaser, or in the joint names 
 of a ~t ranger and the purchaser himself; whether the 
 
 Kiulicott, 6 Cal. 149; Collins . Smith, 18 111. 160; Hill on Trustees 96, 
 2. Parol evidence is also admissible, though it may contradict the 
 in the deed, that the consideration was paid by the nominal pur- 
 cha-cr. at least during his lifetime : Hill on Trustees 95, note ; Livermore 
 v. Aldrich, 5 Cush. 435, and cases there cited ; see also, Wolf v. Corby, 
 .'in Md. :;:>6; Colton v. Wood, 25 Iowa 43 ; Groesbeck . Seeley, 13 Mich. 
 >'2'.< . Hogan v. Jaques, 4 Green (N. J.) 123 ; and according to decisions in 
 the United States, the question being unsettled in England, after his death 
 also, though of course, in such case, the proof should be of the strongest 
 character, as the protection of an answer is absent: Unitarian Society v. 
 Woodbury, 14 Maine 281 ; Neill v. Keese, 5 Texas 23 ; Harder . Harder, 
 2 Sandf. Ch. 17 ; McCammon v. Petit, 3 Sneed 242. See Harrisburg Bank 
 v. Tyler, 3 W. & S. 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 
 W.-nd. 626; Pierce v. McKeehan, 3 Penn. St. 136; Harder v. Harder, 2 
 Sandf. Ch. 17 ; Lloyd v. Carter, 17 Penn. St. 216 ; Peabody v. Tarbell, 2 
 Cush. "2'.',-2; 1'inney v. Fellows, 15 Verm. 525; Barron v. Barren, 24 Id. 
 .';7-"> : but parol declarations that he had purchased or was about to pur- 
 chase for another, without proof of some previous 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 
 9. Walters, f* Watts 389; Haines . O'Connor, 10 Id. 313; Blyholder t. 
 Gilson, 18 Penn. St. 134 ; Smith v. Smith, 27 Id. 180. 
 
 A promise to buy land at sheriff's sale is within the Statute of Frauds : 
 Smith r. Smith, 27 Penn. St. 180; Kellum . Smith, 33 Id. 158; Gilberts 
 Carter, 10 Ind. 16. But it must be remembered that where a person at 
 ^hi-riflTs sale makes declaration that he is buying on behalf of the defendant, 
 and thereby prevents other persons from bidding, he will be held a trustee 
 for the defendant : Brown v. Dysinger, 1 Rawle 448 ; Bethell v. Sharp, 25 
 111. 17'; : Kyan v. Dox, 34 N. Y. 307 ; for an element of fraud exists in 
 this last class of cases which does not obtain in the former. 
 
 As a resulting trust may be created, so may it be rebutted, by parol evi- 
 dence, 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 nominal pur-' 
 chaser was designed to be the real beneficiary : Botsford v. Burr, 2 John. 
 Ch. 405; Pago/. Page, 8 N. II. L89; Baker v. Vining, 30 Maine 126; 
 Elliott v. Armstrong, 2 Jtluckf. I'M: McGuire v. McGowen, 4 Dessaus. 487; 
 11 v. Baxter, 2 Md. Ch. 448. Or that the party advancing the pur- 
 chase-money, by the original agreement expressly stipulated for himself a
 
 116 ADAMS'S DOCTRINE OF EQUITY. 
 
 estate be originally conveyed to one purchaser out of 
 r*oA-\ many, or *become ultimately vested in one as the 
 survivor, under an assurance which has created a 
 legal joint tenancy ; or whether in the case of several 
 nominal purchasers, an immediate joint estate be given to 
 all, or the grant be to take successively one after another. 
 Whatever be the peculiar form in which the assurance is 
 
 benefit from the transaction, inconsistent with the creation of a trust : Dow 
 0. Jewell, 1 Foster 470. And so in general, where a different trust has 
 been declared at the time in writing: Leggett v. Dubois, 5 Paige 114; 
 Anstice v. Brown, 6 Id. 448 ; Clark v. Burnham, 2 Story 1 ; Mercer v. 
 ' Stark, 1 S. & M. Ch. 479. 
 
 Resulting trusts of this nature arise from the want of any consideration 
 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. 
 91 ; Partridge v. Havens, 10 Paige 618 ; Knouff v. Thompson, 16 Penn. 
 St. 357 ; Dennison v. Goehring, 7 Id. 182, n. ; Taylor v. Jamec, 4 Dessaus. 
 6 ; Tremper v. Borton, 18 Ohio 418 ; Stanley v. Brennen, 6 Black. 194 ; 
 Dudley v. Bosworth, 10 Humph. 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: Jackson v. Matsdorf, 11 John. 91; Dudleys. 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. McRight, 2 Penn. St. 38 ; Guthrie 
 v. Gardner, 19 Wend. 414; Jencks v. Alexander, 11 Paige 619; Croft v. 
 Arthur, 3 Dessaus. 223 ; Rucker v. Abell, 8 B. Monr. 566; Dunnien v. Coy, 
 24 Missouri 167 ; Garfield v. Hatmaker, 15 N. Y. 476. 
 
 It only remains to state that in some of the United States resulting trusts 
 have been abolished, or exist only in certain cases and under certain re- 
 strictions, specified and imposed by the statutes. Such is the case in New 
 York, Minnesota, Wisconsin and other states. In regard to trusts of this 
 description in the first mentioned state, see Lounsbury v. Purdy, 18 N. Y. 
 515 ; Swinburn v. Swinburn, 28 Id. 568 ; Siemon v. Schurck, 29 Id. 
 598 ; and Buffalo, &c., Railroad Co. v. Lampson, 47 Barb. 533.
 
 ORDINARY AND CHARITABLE TRUSTS. 117 
 
 made, it does not affect the presumption that an estate or 
 share of an estate, vested in a man who did not pay its 
 price, was not intended by way of beneficial ownership ; 
 and therefore, in all those cases alike, if there be no evi- 
 dence of an opposite intention, the trust of such legal 
 estate will result to the parties who have advanced the 
 purchase-money, in proportion to the amount of their 
 respective advances. And as trusts of this kind are ex- 
 pressly exempted from the Statute of Frauds, it is com- 
 petent 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 nominal pur- 
 chaser to rebut that presumption by direct or circumstan- 
 tial evidence to the contrary. He may, for instance, show 
 that it was intended to give him the beneficial interest, 
 either altogether or in part; that the purchase-money was 
 advanced by way of loan to himself, and that the party 
 advancing it intended to become his creditor, and not the 
 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 manner a counter presumption may be raised 
 in opposition to the original one ; and this again in its 
 turn may be met by other evidence of an opposite in- 
 tention. Lastly, the evidence which is thus brought 
 forward on either side may be derived either from con-
 
 118 ADAMS'S DOCTRINE OF EQUITY. 
 
 PJ-.OC-J temporaneous declarations 1 *or other direct proof 
 of intention, or from 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 ordi- 
 nary 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, inasmuch as it 
 is a father's duty to provide for his child, it is not impro- 
 bable that he may make the provision by giving the child 
 an estate, or by purchasing one for him in his name. And, 
 therefore, if he does make a purchase in the child's name, 
 i\\Q primd facie probability is that he intended it as a pro- 
 vision or advancement. The doctrine on this point will 
 be hereafter separately considered under the head of 
 Meritorious Consideration. 
 
 In accordance w r ith 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 partnership 
 purposes, there will be a trust by operation of law for the 
 partnership, as tenants in common, although a trust may 
 not have been 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, (k) 
 
 (i) 3 Sug. V. & P. 275 ; Lloyd v. Spillett, 3 Atk. 150; Dyer v. Dyer, 2 
 Cox 92; Rider . Kidder, 10 Ves. 360; Aveling v. Knipe, 19 Id. 441; 
 Wray v. Steele, 2 Ves. & B. 388 ; Vickers . Cowell, 1 Bea. 529. 
 
 (fc) Dale v. Hamilton,' 5 Hare 369, 382 ; 2 Ph. 266. 
 
 1 But not from subsequent declarations : Sidle v. Walters, 5 Watts 389 ; 
 Hill on Trustees 94, note ; Bennett v. Fulmer, 49 Penn. St. 155.
 
 ORDINARY AND CHARITABLE TRUSTS. 119 
 
 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 clone in accordance with that duty. 
 
 *If therefore a man is a trustee of certain funds 
 for investment in land, or has bound himself by 
 covenant to lay out money in land, and he purchases an 
 estate at a corresponding price, it will be presumed, inde- 
 pendently of positive evidence, that his object in the 
 investment was to effectuate the trust ; and a trust may 
 be implied accordingly. But it will be observed that this 
 is not as a hostile or compulsory decree, but on the sup- 
 position that such a result was really contemplated ; and 
 therefore if the contrary be proved, as by showing that 
 the purchase was made under a mistaken opinion of the 
 trust, the presumption cannot be raised. It is 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 acquires ; for in these cases 
 the trust attaches by virtue of the covenant, independently 
 of any intention in the party bound. (I) 1 
 
 (I) 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. 
 
 1 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 Rescission 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
 
 120 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 
 effect however of non-acceptance is not to invalidate the 
 beneficial gift, but merely to free the non-accepting party 
 from the liability to act. It is a settled principle in equity 
 that a trust shall not fail for want of a trustee ; and, 
 therefore, whether a trustee has been named, who after- 
 wards refuses the trust ; whether, as is often the case in 
 wills, no trustee be named, or it is doubtful who is the 
 
 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 em- 
 ployed, 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 
 conveyance, treated as trustee for the vendee. And, in cases of part per- 
 formance of parol agreements for the sale of land by payment of purchase- 
 money, the vendee acquires an equitable interest to the extent of the pur- 
 chase-money paid: Rose v. Watson, 10 H. L. Ca. 672; Barnes' Appeal, 46 
 Penn. St. 350. So of an encumbrancer, such as a mortgagee who has ob- 
 tained 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 with- 
 out 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 cannot hold property beneficially 
 and for himself, except by fraud or in contravention of equity, he holds it 
 as trustee for those who, in contemplation 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 ap- 
 plied to them, when established, are in general the same with those which 
 govern direct trusts, but they are not in every respect identical. For in- 
 stance, 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 former the 
 question of laches is a most material one, both with reference to their 
 establishment and to the consequent relief which is given. Indeed, in 
 some cases, the Statute of Limitations is directly followed. There are other 
 distinctions, also, as to the privileges which 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.
 
 ORDINARY AND CHARITABLE TRUSTS. 121 
 
 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. 1 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 provided by a 
 late statute that, if a trustee be a lunatic or infant, or if 
 he be out of the jurisdiction of the Court, or if it be un- 
 certain (*where there were several trustees) which 
 was the survivor, or uncertain whether the trustee 
 last known to have been seised, is living or dead, or, if 
 dead, who is his heir, or if he refuse to convey when re- 
 quired, 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.(w) 2 
 
 [m] 11 Geo. 4, and 1 Wm. 4, c. 60. 
 
 1 After the Court of Chancery has acquired jurisdiction by bill filed, it 
 will not suffer any appointment or substitution of trustees, except with its 
 sanction and control : Hill on Trustees 190, note. Under certain circum- 
 stances, as where the fund is very large, the Court will not suffer the 
 property to remain in the charge of one trustee, but will appoint another : 
 Grant r. Grant, 34 L. J. Ch. 641. 
 
 2 Equity never suffers a trust to ail on account of the neglect or refusal 
 of the trustee to act, but if necessary will either appoint a new trustee, or 
 treat the holder of the legal title as such : Shepherd v. McEvers, 4 John. 
 Ch. 136; De Barante c. Gott. 6 Barb. S. C. 492; Crocheron r. Jacques, 3 
 Edw. Ch. 207 ; King v. Donnelly, 5 Paige 46 ; Cushney v. Henry, 4 Paige 
 345; McKennan r. Phillips, 6 Whart. 571 ; Dawson r. Dawson, Rice Eq. 
 243 ; Lee v. Randolph, 2 Henn. & Munf. 12 ; Mclntire School r. Zan. Canal 
 & M. C., 9 Hamin. 203 ; Griffith v. Griffith, 5 B. Monr. 113 ; Field c. Arrow- 
 smith, 3 Humph. 442 ; Peter v. Beverly, 10 Peters 534 ; Furman r. Fisher, 
 4 Cold. (Tenn.) 626. In some cases the appointment is made by a formal 
 suit, in others by a petition simply. The circumstances which justify a 
 resort to the latter method are of course the subject of special statutes in 
 England and the various United States. As to the power of a court of 
 chancery to appoint new trustees, and the occasions when that power is to
 
 122 ADAMS'S DOCTRINE OF EQUITY. 
 
 If, however, there is not merely a failure of the specific 
 trustee, but the estate derived from the donor is at an 
 end, and there is an owner holding by a paramount or 
 adverse title, the trust ceases to bind. It is binding on 
 the trustee himself if he accept it, and on any person 
 claiming through or under him, except a purchaser for 
 value without notice of the trust. And if he do not 
 
 be exercised, see Hill on Trustees, p. 190-194, 4th Am. ed., where the 
 American and English statutes are referred to. See, also, Morgan on 
 Statutes and General Orders, pp. 58 to 123. A trustee is at liberty at any 
 time before acceptance to disclaim or refuse the trust : Maccubin v. Crom- 
 well, 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 W. & S. 331; 4 Kent Comrn. 
 500 ; and after the lapse of a great length of time, as twenty-five years, 
 without disclaimer, the trustee 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 lia- 
 bility upon the covenants contained therein : Flint v. Clinton Co., 12 N. 
 H. 432 ; but it will be presumed from any act in the management of the 
 trust estate ; and the rule is the same as to trusts created by will : Flint 
 v. Clinton Co. ub sup. ; Chaplin v. Givens, Rice Eq. 133 ; Latimer v. Han- 
 son, 1 Bland 51 ; Maccubbin v. Cromwell, 7 G. & J. 157. Where the trus- 
 tee is also executor, probate of the will is an acceptance as to personalty 
 at least: Worth v. Me Aden, 1 Dev. & Batt. Eq. 207. Although in those 
 states where security is required, he is held to have no power until qualifi- 
 cation: Monroe v. James, 4 Munf. 195 ; Trask v. Donoghue, 1 Aik. (Verm.) 
 373. Where one of several trustees disclaims, the trust estate devolves on 
 the remainder : King v. Donnelly, 5 Paige 46 ; Trask v. Donoghue, 1 Aik. 
 370 ; Putnam Free School . Fisher, 30 Maine 523 ; Jones v. Maffet, 5 S. 
 & R. 523 ; Taylor v. Galloway, 1 Hamm. 232. Where, however, there 
 has once been acceptance, a trustee cannot afterwards, by any re- 
 nunciation or disclaimer, rid himself of the duties of his office, except by 
 consent of all parties, or by the intervention of a court of chancery : 
 Shepherd v. McEvers, 4 John. Ch. 136 ; Cruger v. Halliday, 11 Paige 314 ; 
 Latimer v. Hanson, 1 Bland 51 ; Chaplin v. Givens, 1 Rice Eq. 133; Drane 
 v. Gunter, 19 Alab. 731.
 
 ORDINARY AND CHARITABLE TRUSTS. 123 
 
 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 ; x nor was it, until a late statute, binding 
 on the lord entitled by forfeiture or escheat. The pri- 
 vilege of the lord by escheat is now excluded by statute ; 
 and the Court is enabled to Appoint new trustees, and to 
 direct a conveyance by substitution to them, when a 
 
 trustee dies without an heir, in like manner as when his 
 
 
 
 heir is uncertain, (n) 
 
 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) 2 And in 
 like manner his renunciation may be evidenced by his 
 conduct, without an express declaration to that effect. 
 But the more prudent course is to execute a deed of dis- 
 claimer, (p) If, instead of a formal disclaimer, he execute 
 an immediate release to his co-trustees for the mere pur- 
 pose of disclaiming, *it seems doubtful whether r#oo-i 
 such a release, although technically a dealing with 
 
 (n) Gilbert on Uses, by Sug. 429 ; Burgess v. Wheats, 1 Eden 177 ; 
 [Sweeting r. Sweeting, 33 L. J. Ch. 311 ;] Attorney-General v. Duke of 
 Leeds, 2 M & K. 343 ; 4 & 5 Wm. 4, c. 23, ss. 2 and 3. [See Hill on Trus- 
 tees, 4 Am. ed. 77, and notes.] 
 
 (o) Urich v. Walker. 3 M. i C. 702; Kirwan v. Daniel, 5 Hare 493. 
 
 (p) Stacey v. Elph. 1 M. & K. 195. [See Judson v. Gibbons, 5 Wend. 
 224 ; Maccubbin v. Cromwell, 7 Gill & Johns. 165.] 
 
 1 See Stuyvesant v. Hale, 2 Barb. Ch. 151 ; Woods v. Farmere, 7 Watts 
 382. 
 
 2 As a general rule the acceptance of the trustee must be of the entire 
 trust, and he cannot limit his responsibility to a particular portion. But 
 there may be exceptions to this rule, of which an instance will be found 
 iu Malzy v. Edge, 2 Jurist N. S. 80.
 
 124 ADAMS'S DOCTRINE OF EQUITY. 
 
 the property, would be treated as an acceptance of the 
 trust, (q) If the legal ownership has become vested in 
 him, so that he cannot get rid of it by mere disclaimer, 
 e. (/., 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. 1 
 
 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. 2 
 
 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 trust 
 for children not in esse, or if for any other reason the sanc- 
 tion of all cannot be obtained, then the mere act of trans- 
 fer would be a breach of trust; and therefore the trustee 
 cannot, by his own act, relinquish his office, but would 
 incur an additional liability for any misconduct on the 
 part of his transferree. In order to meet this inconve- 
 
 (q) Nicloson . Wordsworth, 2 Swanst. 365 ; Urch v. Walker, 3 M. & C. 
 
 702. 
 
 1 In the event of the death of the person nominated as trustee, before 
 his acceptance, it appears doubtful whether the right of disclaimer will fall 
 to the ground, or will pass to the heir or personal representative. The 
 point arose in Goodson v. Ellison, 3 Russ. 583, but was not decided. It 
 would seem most reasonable to hold that the right to disclaim would pass 
 to the heir or personal representative : Hill on Trustees, page 222. See, 
 however, King v. Phillips, 16 Jur. 1080. 
 
 2 Cruger et al. v. Halliday's Adm'x, 11 Paige 314 ; Jones v. Stockett, 2 
 Bland 409 ; Shepherd v. McEvers, 4 John. Ch. 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 ; Thompon v. Thomp- 
 son, 2 B. Monr. 161. See Hill on Trustees, 4 Am. ed. 298, &c., and notes.
 
 ORDINARY AND CHARITABLE TRUSTS. 125 
 
 nience, 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 
 
 c O 
 
 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 unwill- 
 ing to exercise it, he can only be denuded of his office by 
 a decree in equity. If he has a sufficient ground for 
 retiring, the costs of a suit for that purpose will be paid 
 out of the estate ; as, for instance, if he becomes involved 
 in complicated questions, which could not have been anti- 
 cipated when he undertook the trusts ; but he cannot 
 burden the estate with costs occasioned by a capricious 
 abandonment *of his charge, (r) 1 After a bill has 
 been filed for the appointment of new trustees, it is 
 improper, though not absolutely incompetent, for the origi- 
 nal 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 existence 
 of such a power induce the Court to appoint new trustees 
 on the nomination of the old ones, without inquiry as to 
 the fitness of the parties nominated, (s) In some decrees 
 appointing new trustees, a power for such new trustees to 
 supply future vacancies without a fresh application to the 
 Court has been inserted, but the admissibility of such a 
 power, except under special circumstances, appears to be 
 doubtful. (O 2 
 
 (r) Coventry v. Coventry, 1 Keen 758 ; Greenwood v. Wakeford, 1 Bea. 
 576 
 
 (s) Attorney-General v. Clack, 1 Bea. 467 ; Cafe v. Bent, 3 Hare 245 ; 
 
 v. Roberts, 1 J. & W. 251. 
 
 (t) White v. White, 5 Bea. 221 ; Bowles . Weeks, 14 Sim. 591. 
 
 1 Matter of Jones, 4 Sandf. Ch. 615 ; Cruger v. Halliday, 11 Paige 314; 
 Courtney v. Courtney, 3 Jones & Lat. 529. 
 
 2 It is now established that such power cannot be exercised by the
 
 126 ADAMS'S DOCTRINE OF EQUITY. 
 
 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, (u) 
 
 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, admin- 
 istrators or other persons, holding moneys, stock, or gov- 
 ernment or parliamentary securities, belonging to any trust, 
 or the major part, may pay, transfer, or deposit them into 
 or in the name of the Accountant-General, on filing an 
 affidavit shortly describing the instrument creating the 
 trust ; and that the application of the fund shall be after- 
 wards 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 equitable 
 "- J ownership in the cestui que trust, and a legal own- 
 ership in the trustee. 
 
 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 an 
 estate at law. The terms in which it is declared are in- 
 terpreted by the same rules ; it is subject to the same 
 
 (u) I Wm. 4, c. 60. 
 (e) 10 & 11 Viet. c. 96. 
 
 court: Holdin v. Durbin, 11 Beav. 574; Oglander v. Oglandcr, 2 De G. & 
 Sm. 381.
 
 ORDINARY AND CHARITABLE TRUSTS. 127 
 
 restraints 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 interpreted 
 by the ordinary rules of law. 1 
 
 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 com- 
 pletely declared, will bear exactly the same construction 
 as if it had been a conveyance of the legal estate. If the 
 scheme has been imperfectly declared in the outset, and 
 the creator of the trust has merely denoted his ultimate 
 object, imposing on the trustee or on the Court the duty 
 of effectuating it in the most convenient way, the trust is 
 called executory, and is construed by a less stringent rule. 2 
 
 The reason of this apparent exception is obvious, for 
 
 1 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 at- 
 tempted 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 Dessaus. 256. 
 
 2 The distinctions between executory and executed trusts, especially 
 with regard to the application of the rule in Shelley's Case, are generally 
 recognised in the United States : Croxall v. Shererd, 5 Wall. S. C. 281 ; 
 Dennison v. Goehring, 7 Penn. St. 177 ; Wood r. Burnham, 6 Paige 518 ; 
 Tallman v. Wood, 26 Wend. 19; Home v. Lyeth, 4 Harr. & J. 434; Gar- 
 ner r. Garner, 1 Desaus. 444 ; Porter p. Doby, 2 Rich Eq. 49 ; Edmonson 
 v. Dyson, 2 Kelly 307 ; Lessee of Findlay v. Riddle, 3 Binn. 152 ; Neves v. 
 Scott, 9 How. U. S. 211 ; Berry v. Williamson, 11 B. Monr. 251 ; Imlay c. 
 Huntington, 20 Conn. 162 ; Saunders v. Edwards, 2 Jones Eq. 134 ; Wag- 
 staffe r. Lowere, 23 Barb. 215 ; Note to Lord Glenorchy r. Bosville, 1 Lead. 
 Cas. Eq. 1.
 
 128 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 de- 
 tails 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, 
 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 remainder to his 
 sons successively in tail. 
 
 In the case of executory marriage articles, there is an 
 indication furnished by the nature of the instrument, in- 
 dependently of any expressed intention leading to this 
 construction of the trust; for it is assumed, in accord- 
 ance with ordinary practice, and in the absence of reason 
 to conclude the contrary, that the settlement contemplated 
 by such articles is one which will not only provide for the 
 husband and wife, but will also secure a provision for the 
 children of the marriage. If, therefore the articles, strictly 
 interpreted, would have a different result, they will be 
 moulded in conformity with the presumed object. In the 
 case of wills, on the other hand, there is no such primd facie 
 indication of intent. The gifts in a will are mere bounty, 
 and are themselves the only guide in the construction of
 
 ORDINARY AND CHARITABLE TRUSTS. 129 
 
 their terms. If, therefore, technical words are used, and 
 are not modified or explained by the context, it seems 
 that the trusts, whether executory or not, must be con- 
 strued 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 limita- 
 tion to the first taker for life, though followed by a re- 
 mainder to the heirs of *his body (especially if the 
 gift for life be made in terms unimpeachable of 
 waste) ; or from a limitation to preserve contingent re- 
 mainders ; or a limitation of the remainder to issue in- 
 stead of heirs ; although clauses of this kind would be 
 ineffectual to vary an executed trust, if its terms would 
 in themselves create an entail, (w) 1 
 
 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 pictures 
 or other personal chattels shall be settled to go as heir- 
 looms with the estate, a question has arisen as to the 
 correct frame of the settlement. The effect of a settle- 
 
 (w) Austen . Taylor, 1 Eden 361 ; Blackburn . Stables, 2 Ves. & B. 
 367 : Jervoise v. Duke of Northumberland, 1 J. & W. 559 ; Rochford v. 
 Fitzmaurice, 1 Conn. & L. 158 ; 2 Jarm. on Wills 253-266 ; Lewin on 
 Trustees 4561. 
 
 1 See Garner v. Garner, 1 Dessaus. 444; Berry v. Williamson, 11 B. 
 Monroe 251 ; Imlay v. Huntingdon, 20 Conn. 146 ; Carrol v. Renich, 7 
 Sm. & Marsh. 799 ; Neves v. Scott, 9 How. U. S. 196: and see a discussion 
 of the subject in Egerton v. Brownlow, 4 House Lds. Cas. 1 ; see also 
 Gevers v. Wright's Ex'rs, 3 Green (N. J.) 330; Steinberger's Trustees . 
 Potter, Id. 452. 
 9
 
 130 ADAMS'S DOCTRINE OF EQUITY. 
 
 ment 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 personalty shall go by 
 way of executory gift to the party next entitled under 
 the settlement ; and it seems that articles directing such 
 a settlement are to be construed to imply such an execu- 
 tory gift on death, under twenty-one and without issue. (ad) 1 
 
 2. The equitable ownership is subjected to the same 
 restraints of policy as if the legal estate were transferred. 
 
 It cannot, for example, in the case of real estate be 
 enjoyed by an alien; (y) 2 it cannot be made incapable of 
 alienation by the owner, or be denuded of any other 
 right incidental to ownership;^) 3 nor can it be settled in 
 
 (x) Duke of Newcastle v. Countess of Lincoln, 3 Ves. 387, 12 Ves. 218 ; 
 Lord Deerhurst v . Duke of St. Albans, 5 Madd. 232. [See Rowland v. Mor- 
 gan, 13 Jur. 23 ; s. c. 2 Phill. 764.] 
 
 (y) Du Hourmelin v. Sheldon, 1 Bea. 79 ; 4 M. & C. 525. 
 
 (z) Brandon v. Robinson, 18 Ves. 429 ; [Rochford v. Hackrnan, 9 Hare 
 475.] 
 
 1 A very full discussion of the authorities on the subject of the settle- 
 ment of personal chattels will be found in Scarsdale v. Curzon, 1 Johns. & 
 H. 40; and see 7 Jur. N. S. pt. 2, 71. 
 
 2 Atkins v. Kron, 5 Ired. Eq. 207 5 Hubbard v. Goodwin, Leigh 492 ; 
 Leggett v. Dubois, 5 Paige 114; Taylor v. Benham, 5 How. U. S. 270 ; Ritt- 
 son v. Story, 3 Sin. & Giff. 230; though see Barrow . Wadkin, 24 Beav. 
 1, when it was held that the crown could claim the benefit of a purchase 
 made in trust for an alien. But it is different as to the proceeds of real 
 estate, directed to be sold by will ; an alien being able to hold personalty : 
 Craig v. Leslie, 3 Wheat. 563 ; Comm. v. Martin, 5 Munf. 117. 
 
 3 In a recent case in the Supreme Court of the United States, Nichols v. 
 Levy, 5 Wallace 441, the law on this subject was thus stated by Mr. Jus-
 
 ORDINARY AND CHARITABLE TRUSTS. 131 
 
 a *series of limitations extending, or which may 
 extend, beyond the limits 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 venire sa mere at his death, or 
 during the minority only of such persons 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 
 
 (a) 1 Jariu. on Wills, c. ix, s. 2. 
 
 tice Swayne. " It is a settled rule of law that the beneficial interest of the 
 cestui que trust, whatever it may be, is liable for the payment of his debts. 
 It cannot be so fenced about by inhibitions and restrictions as to secure to 
 it the inconsistent characteristics of right and enjoyment to the beneficiary, 
 and immunity from his creditors. A condition precedent that the provision 
 shall not vest until his debts are paid, and a condition subsequent that it 
 shall be divested and forfeited by his insolvency with a limitation over to 
 another person are valid, and the law will give them full effect. Beyond 
 this, protection from the claims of creditors is not allowed to go." In this 
 case the application of the rule was prevented by reason of -a statute in 
 Tennessee, by the law of which state the trust was governed : see also Hal- 
 lett r. Thompson, 5 Paige 583 ; Dick t>. Pitchford, 1 Dev. & Bat, eq. 480. 
 But in Pennsylvania and Kentucky, such proviso is held good, where the 
 cestui que (rust is himself entirely excluded, by the terms of the trust, from 
 any control over the property : Vaux v. Parke, 7 W. & S. 19 ; Pope r Elliott, 
 8 B. Monr. 56 ; see also, Campbell i: Foster, 35 N. Y. 361. It is only in 
 cases where a clear surplus will exist after a reasonable sum has been ap- 
 propriated to the support of the person for whose benefit a trust was 
 created, that courts of equity are authorized to interfere in behalf of judg- 
 ment creditors, and divert a portion of the income or annuity to the pay- 
 ment of the debts of such person : Genet v. Beckman, 45 Barb. (N. Y.) 
 382. Even in Pennsylvania, however, a person sui juris cannot settle pro- 
 perty on himself for life, free from debts : Mackason's Appeal. 42 Penn. 
 St. 330.
 
 132 ADAMS'S DOCTRINE OF EQUITY. 
 
 children, or to any directions touching the preservation of 
 woods of timber, (b) 1 
 
 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 contravention of the principles 
 of law, to acquire property independently of her husband; 
 and to enter into contracts, and incur liabilities in refer- 
 ence to such property, and dispose of it as a feme sole, 
 notwithstanding her coverture and disability at law, 2 
 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 
 
 r*44-1 difficulty, *and secure to her the desired pro- 
 
 tection against the marital rights, another principle 
 
 (&) Thelusson . Woodford, 4 Ves. 227 ; 11 Ves. 112; 39 and 40 Geo. 3, 
 c. 98; 1 Jarm. on Wills, c. ix, s. 3. 
 
 . 1 See ante, note 1 to page 40 ; and see the subject of perpetuities, dis- 
 cussed in Lorillard v. Coster, 5 Paige Ch. 172 ; Hillyard v. Miller, 10 
 Penn. St. 335. In some of the United States as in Pennsylvania, and 
 New York, there are legislative provisions against accumulation. See Hill 
 on Trustees 394, note. 
 
 2 Upon the trusts for separate use in the United States, see 2 Kent's 
 Coinm. 162 ; notes to Hulme v. Tennant, 1 Lead. Cases in Eq. 394 ; Hill 
 on Trustees, 4th Am. ed. 625.
 
 ORDINARY AND CHARITABLE TRUSTS. 133 
 
 was infringed, by deciding that the gift of the separate 
 estate, whether for life, or for an absolute interest, might 
 be fettered and qualified by prohibiting 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 to take effect on a future 
 marriage. It was admitted, that during discoverture the 
 clause was void, and that the ownership was absolute up 
 to the moment of marriage ; and it might therefore have 
 been expected that, by the act of marriage, the usual 
 interest would be conferred on the husband. A contrary 
 decision, however, was not 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, although the prohibitory clause is nugatory whilst 
 the discoverture lasts, yet if the property be not disposed 
 of during that period, the prohibition will attach imme- 
 diately on the second marriage.^) 1 At this point, how- 
 
 (c) Bagget p. Meux, 1 Coll. 138 : 1 Ph. 627 ; Rennie r. Ritchie, 12 Cl. * 
 Fin. 204 ; Gaffee's Trust, 1 Macn. & Gord, 541. 
 
 (d) Tullet c. Armstrong, 1 Bea. 1 ; 4 M, & C. 377 ; [Gaffee's Trust, 1 
 Macn. & Gord. 541 ; Hawkes c. Hubback, 11 Eq. L. R, 5.] 
 
 1 The latter English doctrine, as stated in the text, has been followed in 
 the United States, in Beaufort v. Collier, 6 Humph. 487 ; Shirley v. Shir- 
 ley, 9 Paige 363 ; Fellows v. Tann, 9 Alab. 1003 ; Fears v. Brooks, 12 Geo. 
 197; Waters v. Tazewell, 9 Md. 291. But in Hamersley v. Smith, 4 
 Whart. 126 ; Kuhn v. Newman, 26 Penn. St. 227 ; Lindsay r. Harrison, 3 
 Eng. (Ark.) 311 (and see Dick v. Pitchford, 1 Der. & 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 : see Dubs v. Dubs, 31 Penn. St. 149. And a similar decision was 
 made in Miller v. Bingham, 1 Ired. Eq. 423, followed in Apple r. Allen,
 
 134 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 violates 
 principle beyond the authorized limit, and is for that 
 reason invalid. A deed, however, which contemplates 
 an immediate separation, and makes a separate provision 
 for the wife, with a view to that object, may be sustained 
 and enforced, notwithstanding that its primary object 
 the separation itself is incapable of enforcement by either 
 party. But such a provision is upheld on the ground of 
 its legal validity, and not on the footing of a separate 
 trust. The consistency of the doctrine *which 
 thus invalidates the primary object of a deed, but 
 gives effect to a collateral one, was doubted by Lord 
 Eldon, but he felt himself bound by the decisions at law. 
 If after a provision has been made for an immediate sepa- 
 ration, the parties come together again, its operation is at 
 an end with respect to any future, as well as the past, 
 separation, (e} 1 
 
 (e) Lord St. John v. Lady St. John, 11 Ves. 537 ; Westmeath v. Salis- 
 
 3 Jones Eq. 120 ; though see Bridges v. Wilkins, Id. 342. Upon Hamers- 
 ley 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 5 and that in so far, therefore, its authority 
 has been weakened. See Wells v. McCall, 64 Penn. St. 207. And it is 
 difficult, moreover, to assent to the reasoning in that case, without denying 
 the validity of the separate 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 over to a trustee for the separate use, &c., upon the 
 concurrence 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. 
 
 1 A contract between husband and wife for immediate separation, and
 
 ORDINARY AND CHARITABLE TRUSTS. 135 
 
 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 sufficient 
 that there be a gift for the wife's benefit, or a direction to 
 pay the money into her own hands, for there is nothing 
 in this inconsistent with the marital right. But there 
 
 bury, 5 Bligh 339 ; [Cartwright v. Cartwright. 17 Jur. 584 :] Frampton v. 
 Frampton, 4 Bea. 287 ; Jodrell v. Jodrell, 9 Id. 45 ; [Webster v. Webster, 
 22 L. J. Ch. 837.] 
 
 for a separate allowance to his wife, made through the intervention of a 
 trustee, is valid : Carson v. Murray, 3 Paige Ch. 483 ; Champlin v. 
 Champlin, 1 Hoff. Ch. 55; Huttou v. Duey, 3 Penn. St. 100; Dillinger's 
 Appeal, 35 Penn. St. 357 : Simpson v. Simpson, 4 Dana 140 ; Rogers o. 
 Rogers, 4 Paige 518 ; Carter v. Carter, 14 Sin. & M. 59 ; Barron v. Barron, 
 24 Verm. 375 ; McKennan v. 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 invalidate the agreement: Carson v. Murray. But see Rogers 
 v. Rogers, 4 Paige Ch. 516 ; Wallingsford r. Wallingsford, 6 Har. & J. 
 485 ; McKennan r. Phillips, 6 Wharton 571 ; McCrocklin v. McCrocklin, 2 
 B. Monr. 370. Although generally the provisions of a separate deed are 
 annulled by reconciliation and re-cohabitation, yet the husband may con- 
 duct himself subsequently so as to create new obligations on the footing 
 of those in the separate deed. As where in a deed of separation, the hus- 
 band covenanted to pay an annuity to the wife for her life, and subse- 
 quently, 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 : Webster . 
 Webster, 22 L. J. Ch. 837 ; 27 Id. 115. 
 
 In England, it is now established, that specific performance of articles 
 of agreement to a separation, so far as they regard an arrangement of pro- 
 perty agreed upon, may be decreed : Wilson v. Wilson, 1 H. Lords Cas. 
 538 ; see s. c. 5 H. Lords Cas. 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, 4th Am. ed. 668 ; Calkins r. Lang, 
 22 Barb. 97.
 
 136 ADAMS'S DOCTRINE OF EQUITY. 
 
 must be a direction that it shall be for her sole, separate, 
 or independent use, or in other equivalent terms showing 
 a manifest intent to exclude the husband^/) 1 In like 
 manner, in order to create a fetter on anticipation, there 
 must be positive words, or a manifest intention to restrain 
 that power of disposal, which is prima facie incidental to 
 ownership. (^7) 2 
 
 (/) Tyler r. Lake, 2 R. & M. 183 ; Massey . 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. 138 ; 1 Ph. 627 ; [Cooke v. Husbands, 
 11 Md. 504; Ross's Trust, 1 Sim. N. S. 196.] 
 
 1 It is difficult to lay down any precise rule on this subject, and impos- 
 sible to reconcile all the decisions. There must be an intention to confer 
 a separate interest on the wife ; and this intention must be properly mani- 
 fested. The intention must exist; for without it, words which would 
 otherwise dreate a separate estate will not have that effect. Thus in Lewis 
 v. Mathews, L. R. 2 Eq. 177, there was a devise of real and personal estate 
 to H., a feme sole who afterwards married, " her heirs, executors, adminis- 
 trators and assigns, for her and their own sole and absolute use and bene- 
 fit," and it was held that these words did not create a separate estate in 
 H., because they were applied equally to her heirs and executors, as to 
 whom no such intention could exist : see also Rudisell v. Watson, 2 Dev. 
 Eq. 430. The intention must be properly manifested ; and this may be 
 done by the use of expressions which either confer upon the feme a domin- 
 ion over the property inconsistent with her position as coverte, or which 
 exclude the rights of the husband. Of the first class of expressions in- 
 stances will be found in Jamison v. Brady, 6 S. & R. 466 : Gardenhire v. 
 Hinds, 1 Head 402; Ellis v. Woods, 9 Rich. Eq. 19; Ozley v. Ikelheimer, 
 26 Alab. 332; Nix v. Bradley, 6 Rich. Eq. 48 ; Bridges v. Wood, 4 Dana 
 610; of the latter, Woodrum v. Kirkpatrick, 2 Swan 218; Martin v. Bell, 
 9 Rich. Eq. 42; Young v. Young, 3 Jones Eq. 216; Ballard v. Taylor, 4 
 Dessaus. 550 ; Evans v. Knorr, 4 Rawle 66 ; Perry v. Boileau, 10 S. & R. 
 208, are "examples. 
 
 In general as to what words will or will not create a separate use, see 
 the American note to Hulme v. Tenant, 1 Lead. Gas. Eq. 539, and Hill on 
 Trustees 654 to 650 (4th Am. ed.). Particular attention may perhaps be 
 called to Gilbert v. Lewis, 1 De G., J. & Sm. 38, and Tarsay's Trusts, L. 
 R. 1 Eq. 561. The intervention of a trustee is not necessary : 1 Lead. 
 Gas. Eq. 641. 
 
 2 But it is now held that express negative words are not necessary to
 
 ORDINARY AND CHARITABLE TRUSTS. 137 
 
 In the absence of any fetter on anticipation, the wife 
 has the same power over her separate property as if she 
 were unmarried. Her disability to bind herself or her 
 general property is left untouched ; but she may pledge 
 or bind her separate property, and the Court may proceed 
 in rem against it, though not in personam against herself. 
 In order that the separate property may be thus bound, 
 it is not necessary that she should execute an instrument 
 expressly referring to it, or purporting to exercise a power 
 over it. It is sufficient that she professes to act as a, feme 
 sole. For the Court of Chancery, in giving her the capa- 
 city to hold separate property, gives 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) 1 
 
 (h) Murray v. Barlea, 4 Sim. 82 ; 3 M. & K. 209 ; Aylett . Ashton, 1 M. 
 & C. 105 ; Tullett v. Armstrong, 4 Bea. 319 ; Owens t?. Dickinson, Cr. & P. 
 48; Lord v. Wightwick, 2 Ph. 110; [Wilton v. Hill, 25 L. J. -Ch. 157; 
 Vaughan v. Vanderstegen, 2 Drew 363.] 
 
 create a restraint upon alienation. Thus in Baker v. Bradley, 7 De G., M. 
 & G. 597, there was a provision that the married woman's receipts alone, 
 or those of some person authorized to receive any payments of the said 
 rents and income, after such payment should have become due, should 
 alone be a sufficient discharge, and it was held affirming, Field v. Evans, 
 15 Sim. 375, that this was a valid restraint. To the same effect is Free- 
 man v. Flood, 16 Geo. 528; see, however, Cooke v. Husbands, 11 Md. 
 504. 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 certain property of small value, included in an 
 estate which was settled to her separate use, without power of anticipa- 
 tion, it was held that the condition could not be accomplished, and the 
 legacy failed : Robinson v. Wheelwright, 6 De G., M. & G- 535. 
 
 1 The English lule is that, in the absence of any restraint on alienation, 
 a feme covert has the same power of disposition over personal property
 
 138 ADAMS'S DOCTRINE OF EQUITY. 
 
 The pin-money trust is so far similar to that for separate 
 use, that in both cases the property subject to the trust 
 
 settled to her separate use, as a, feme sole; and a recent decision has declared 
 that she has a similar capacity as to her real estate : Taylor v. Meads, 
 34 L. J. Ch. 203 ; 11 Jur. N. S. 166. Her power of disposing of her realty 
 had formerly been limited to the rents and profits ; but in the case last 
 mentioned it was said that she could convey the corpus thereof by a will or 
 by a deed not acknowledged according to the formalities of the statute. 
 See Hill on Trustees 658, note. In some of the United States the English 
 doctrine as to personalty and the income of real estate is followed : Ives v. 
 Harris, 7 Rh. Island 413 ; Leaycraft v. Hedden, 3 Green Ch. 551 ; Imlay 
 v. Huntington, 20 Conn. 175 ; Coleman v. Wooley, 10 B. Monr. 320; Vizon- 
 neau v. Pegram, 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. 
 Robinson, 10 Miss. 757 ; Cooke v. Husbands, 11 Md. 504. 
 
 In others the feme has only such power of disposition as is given by the 
 instrument creating the trust: Lancaster v, Dolan, 1 Rawle 231 ; Reid v. 
 Lamar, 1 Strobh. Eq. 27 ; Porcher v. Reid, 12 Rich. Eq. 349 ; Doty v. 
 Mitchell, 9 Sm. & M. 435 ; Marshall v. Stephens, 8 Humph. 159. In New 
 York the Court of Appeals, in Jacques v. The Methodist Church, 17 Johns. 
 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. 538 ; 2 Seld. 567 ; Leggett v. Perkins, 2 Comstock 297. 
 See Yale v. Dederer, 18 N. Y. 265 ; 22 Id. 450 ; Hill on Trustees 664, note. 
 
 In Pennsylvania it was at one time held that the " Married Woman's 
 Act" in that state had altered the rule: Haines v. Ellis, 24 Penn. St. 
 253. But a more recent and better considered decision has established the 
 contrary : Wright v. Brown, 44 Penn. St. 224. In none of the states has 
 the doctrine been carried to the extent which it has reached in England 
 in Taylor v. Meads (supra) ; and an express power is necessary to enable 
 the feme to dispose of the corpus of real estate. 
 
 The decisions in the United States, as to the liability of the separate 
 estate to the debts and charges of a feme covert, are 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, 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. Robinson, 10 Missouri 757; Bell v. 
 Kellar, 13 B. Monr. 381; Lillard v. Turner, 16 Id. 374; Whitesides v.
 
 ORDINARY AND CHARITABLE TRUSTS. 139 
 
 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 entitled to 
 withhold it from her ; and it has been decided that, if it 
 be not in fact paid to her, no claim for arrears beyond a 
 year can be made by herself, and no claim, even for that 
 period, by her personal representatives, (i) 
 
 It has been contended that alimony is in the nature of 
 separate estate, so that the wife may bind herself by con- 
 tracts 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 pro- 
 vision for maintenance from day to day, decreed by a 
 competent Court to a wife legally separated from her 
 
 () Howard v. Digby, 8 Bligh 224, 245, 267, 268 ; Beresford v. Arch- 
 bishop of Armagh, 13 Sim. 643. 
 
 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 Carolina, however, the separate estate is 
 held liable for debts contracted on its account and for its use : Magwood 
 v. Johnston, 1 Hill Eq. 228 ; Adams v. Mackay, 6 Rich. Eq. 75. Under 
 the Revised Statutes, in New York, the trustee alone has the power to sub- 
 ject 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."
 
 140 ADAMS'S DOCTRINE OF EQUITY. 
 
 husband, and is subject in respect to its amount, con- 
 tinuance, and mode of payment, to the discretion of the 
 *Ecclesiastical Court. 1 The wife has in fact no s 
 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 leaA^e the 
 kingdom, on the special ground that the Ecclesiastical 
 Court cannot compel him to find bail.(/t:) 
 
 The wife's equity for a settlement attaches on her 
 equitable chattels real, and on such of her equitable choses 
 in action as are capable of being immediately reduced into 
 possession, and it authorizes a restraint of the husband's 
 right, until he shall have made an adequate settlement. 2 
 
 The rule at law with respect to chattels real and choses 
 in action, of which the wife has the legal ownership, is 
 that in both cases, if the wife survive her husband, and 
 no act be done by him to bar her right, she is entitled by 
 survivorship on his decease. But the nature of the hus- 
 band'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 chattels real, the right of the 
 
 (k) Vandergucht v. De Blaquiere, 8 Sim. 315 ; 5 M. & C. 229. 
 
 1 For these reasons no action can be maintained in another state upon 
 a decree of alimony: Barber v. Barber, 1 Ohand. (Wise.) 280. Though 
 arrears before a decree of divorce a vinculis in another state may be re- 
 covered in the latter : Harrison v. Harrison, 20 Alab. 629. See Hill on 
 Trustees 663, note. 
 
 1 It is now the rule in England that the wife's equity to a settlement will 
 be sustained as well against real as personal estate : Sturgis v. Champneys, 
 5 Myl. & Cr. 97 ; though this doctrine has been followed reluctantly : Han- 
 son v. Keating, 4 Hare 1 ; and will not (it is said) be extended : Gleaves v. 
 Paine, 1 De G., J. & Sm. 87. See, however, Newenham v. Pemberton, 11 
 Jur. 1071; 1 De G. & Sm. 644. In Virginia this doctrine has been ap- 
 proved : Poindexter v. Jeffries, 15 Grat. 363, and see Rees v. Waters, 9 
 Watts 90 ; Hill on Trustees 626, note.
 
 ORDINARY AND CHARITABLE TRUSTS. 141 
 
 husband is a right to the profits during coverture, with an 
 absolute right of disposal by act inter vivos ; and if he sur- 
 vive 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 survives, she takes it absolutely; and if the husband 
 survives, he takes it as her administrator, and not in his 
 own right. (/) ] 
 
 In order therefore to exclude the wife's right of survi- 
 vorship, the husband must assign her chattel real, and 
 must reduce into possession her chose in action. And if 
 *he can effectuate this by course of law, there is r^jo-i 
 no equity to restrain him. It might therefore be 
 expected that where the wife's interest is equitable, instead 
 of legal, the analogy of law would be pursued in equity, 
 so that the husband's assignee of the chattel real would 
 be entitled wholly to exclude the wife, and the husband 
 himself might proceed of right in equity to reduce into 
 possession the chose in action. The practice of the Court, 
 however, is otherwise. The trustee or holder of the pro- 
 perty 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 
 
 (I) 2 Steph. Blacks. 300. 
 
 1 For authorities in the United States, on this question, see Hill on 
 Trustees. 4th Am. ed. 642, note, and see post 142, note.
 
 142 ADAMS'S DOCTRINE OF EQUITY. 
 
 any benefit in it to the husband or his assignee, it is an 
 established equity, founded on long practice, that the hus- 
 band shall not have it, if it exceeds 200/., 1 unless he makes 
 or has already made an adequate provision for his wife 
 and children. TMs is termed the wife's equity for a set- 
 tlement. 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, (m) If the chose in action be one 
 which the husband cannot reduce into present posses- 
 sion, as if it be to take effect after the coverture, or on the 
 determination of an existing life estate, the wife is en- 
 titled to the whole, notwithstanding her marriage, and 
 there is no interest in the husband on which the equity 
 can attach. 2 
 
 (m) Elibank v. Montolieu, 5 Ves. 737 ; Murray i\ Elibank, 10 Yes. 84 ; 
 
 13 Ves. 1 ; Johnson v. Johnson, 1 J. & W. 452 ; Sturgis v. Champneys, 5 
 M. & C. 97 ; Hanson v. Keating, 4 Hare 1. 
 
 1 It is not material now, in England, that the property should exceed 
 200Z. : Cutlers' Trust, 14 Beav. 220; Kincaid's Trusts, 1 Drewry 326, 
 where it was said that the rule applied to taking the wife's assent to part- 
 ing with her interest. 
 
 2 The doctrine stated in the text is sustained by the American authori- 
 ties : Tevis's Rep. v. Richardson's Heirs, 7 Monroe 654 -, Fabre v. Golden, 
 1 Paige 166 ; Smith v. Kane, 2 Id. 303 ; McElhatton v. Howell, 4 Hey- 
 wood 19, 24 ; Kenny v. Udal, 3 Cowen 590 ; s. c., Kenney v. Udall, 5 
 Johns. Ch. 464 ; Elliott v. Waring, 5 Monroe 340 ; Van Duzer v. Van 
 Duzer, 6 Paige 366 ; Whitesides v. Darris, 7 Dana 107 ; Andrews & Bro. 
 v. Jones et al., 10 Ala. 400 ; Rees v. Waters, 9 Watts 90 ; Rorer v. O'Brien, 
 10 Penn. St. 212 5 James v. Gibbs, 1 Patt. & Head 277 ; Moore v. Mooney, 
 
 14 B. Monroe 259 ; Bell v. Bell, 1 Kelly 637 ; see also, cases in notes to 
 Murray v. Lord Elibank, 1 Lead Gas. Eq. 348, 3d Am. ed. ; Duncombe v. 
 Greenacre, 7 Jur. N. S. 175 ; Hill on Trustees, 4th Am. ed.632, note. But 
 not in New Hampshire and North Carolina : Parsons v. Parsons, 9 N. II. 
 309 ; Allen v. Allen, 6 Ired. Eq. 293. And a court of equity will go to a 
 great length in protecting the wife, and the doctrine has been carried so 
 far that the court say that the husband and his assignees will be restrained
 
 ORDINARY AND CHARITABLE TRUSTS. 143 
 
 The equity, though called that of the wife, is effectuated 
 by a settlement on her children also, as being, if the pro- 
 perty 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 in- 
 
 r*49~l 
 dependent equity; and therefore, if she die with- L J 
 
 out 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) 
 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 
 deserted her, or by ill usage has driven her from him ; 
 
 (n) Murray v. Elibank, 10 Ves. 84 ; s. c., 13 Ves. 1 ; Lloyd v. Williams, 
 1 Mad. 450 ; Fenner v. Taylor, 2 R. & M. 190; Hodgens v. Hodgens, 11 
 Bli. 62, 103; 4 Cl. & F. 323, 371 ; Lloyd v. Mason, 5 Hare 149. 
 
 (o) Wright . Morley, 11 Ves. 12, 18; Elliott v. Cordell, 5 Mad. 149; 
 Stanton p. Hall, 2 R. M. 175, 180 ; Stiffe v. Everitt, 1 M. & C. 37. 
 
 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 commis- 
 sioner appointed for the purpose. A transfer acknowledged before an 
 ordinary commissioner out of the state, will not be enough : Coppidge v. 
 Threadgill, 3 Sneed 577.
 
 144 ADAMS'S DOCTRINE OF EQUITY. 
 
 or if he has become incapable of maintaining her, as by 
 his bankruptcy or by an assignment of all his property in 
 trust for creditors, an immediate provision will be directed. 
 In this case it is immaterial whether the wife's interest 
 is for life only, or .of a more permanent character j 1 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 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. (pY 
 
 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 
 to descent, possessio fratris, customs of gavel kind 
 and borough English, and the like, have been always en- 
 forced by analogy in equity, subject however to an excep- 
 tion in the case of dower, Avhich 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 disentailed by a statute deed, 
 in the same manner as a legal estate. But a trust of realty 
 
 (^>) Ball v. Montgomery, 2 Ves. Jun. 191 ; Duncan v. Campbell, 12 Sim. 
 616 ; Gardner v. Marshall, 14 Sim. 575. 
 
 1 This is overruled with regard to a purchaser for value of a life interest 
 of the wife ; and no equity to a settlement arises in such case whether the 
 husband maintain her or not : Tidd v. Lister, 3 De G., M. & G. 857 ; afFg 
 s. c. 10 Hare 157. 
 
 2 Though see as to adultery, Greedy v. Lavender, 13 Beav. 62; Carters. 
 Carter, 14 Sm. & Marsh. 59.
 
 ORDINARY AND CHARITABLE TRUSTS. 145 
 
 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 incidental to the tenure. It is therefore inappli- 
 cable 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 subpoena against him.(^) 1 If the descent fails by 
 attainder, there appears to be some doubt as to the posi- 
 tion of the trustee, as to his right of holding against the 
 felon if pardoned, or against his heir if the felon be exe- 
 cuted. 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 entitled, as in the case of a legal estate ; for the inca- 
 pacity *of an alien is not an incident of tenure, but p^ i -i 
 a result of public policy, which disables an alien 
 
 (q) On the subject of the escheat and forfeiture of trust estates and the 
 respective rights of the Crown and trustee on the death of the cestui que 
 trust without heirs or his attainder: vide Burgess v. Wheate, 1 Eden Oh. 
 Cas. 177 ; [Sweeting v. Sweeting, 33 L. J. Ch. 211 ;] Onslow v. Wallis, 1 
 Macn. & Gord. 506. 
 
 (r) 33 Hen. 8, c. 20, s. 2 ; 1 Hale P. C. 248 ; but see King v. Dacombe, 
 Cro. Jac. 512. In case of the death of a trustee or mortgagee without 
 heirs, or his attainder, it is provided by a recent statute, 4 & 5 Wm. 4, c. 
 23, that no lands, chattels or stock, vested in such person, upon any trust, 
 or by way of mortgage, shall escheat or be forfeited, but shall be conveyed 
 by the Court of Chancery, as the case may require. 
 
 1 It may well be doubted whether this proposition would hold under the 
 statutes of distribution in the United States generally. See Matthews v. 
 Ward, 10 Gill & John. 443 ; Darrah v. McNair, 1 Ashm. 236 ; 4 Kent's 
 Com. 425. 
 10
 
 146 ADAMS'S DOCTRINE OF EQUITY. 
 
 from purchasing except for the king's use. 1 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 bona vaeantia, and if he be convicted of treason 
 or felony, it has always been deemed forfeitable to the 
 Crown, (s) 
 
 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, 2 the other apparent, 
 in the attendance of satisfied terms on the inheritance. 
 
 The right of a widow to dower at common law was a 
 right to have a third part of her husband's freehold lands 
 of inheritance assigned to her for her use, on his decease, 
 for her life. And as the right was given as a matter of 
 general policy, it might have been expected that Courts 
 of equity, following the policy of the law, would have 
 annexed the same right to an equitable estate. It was, 
 
 (s) 1 Steph. Bl. 401,443; 4 Id. 446 5 Att.-Gen. v. Sands, Freem. 130; 
 Lewin on Trustees 556 ; Burgess v. Wheate, 1 Eden 177 ; Williams v. 
 Lonsdale, 3 Ves. 752 ; Taylor v. Hagarth, 14 Sim. 8 ; [Cradock v. Owen, 2 
 Sin. &Giff. 241.] 
 
 1 Barrow v. Wadkin, 24 Beav. 1. See, however, Rittson v. Stordy, 3 Sm. 
 & Giff. 230. 
 
 2 The general principle is, that at common law a wife was not entitled to 
 dower in a trust estate : Stevens v. Smith, 4 J. J. Marsh. 64 ; Danforth v. 
 Lowry, 3 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 ; Dubs v. Dubs, 31 
 Penn. St. 149. 
 
 See Williams on Real Property, 229, note, and post, note to page 233, 
 234.
 
 ORDINARY AND CHARITABLE TRUSTS. 147 
 
 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 purchased 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.(^) 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,(w) which abolishes 
 the distinction in this respect between legal and equitable 
 estates, *and at the same time gives to the hus- r#co-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 portions 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 executor and not to the 
 heir. But the rule is rightly otherwise. For the trust 
 of the term, under these circumstances, is not for any in- 
 dividual person, but for the owner of the inheritance, 
 whoever he may be. This would be the effect if a sur- 
 render were compelled; and the mere absence of a legal 
 surrender does not change the effect in equity. In ac- 
 
 (0 D'Arcy v. Blake, 2 Sch. & L. 387. 
 (u) 3 & 4 Wm. 4, c. 105.
 
 148 ADAMS'S DOCTRINE OF EQUITY. 
 
 cordance with this principle, a term may be made attend- 
 ant, either by implication of law, where the effect of a 
 surrender would be immediate merger, or by express de- 
 claration 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 dis- 
 annexed whenever it fails of a freehold to support it, or 
 is divided from the inheritance by distinct limitations, (v) 
 The effect of getting in an attendant term, where two pur- 
 chasers or encumbrancers are contending for priority, will 
 be hereafter considered under a different head.(w) 
 
 The doctrine (ww) of attendant terms will shortly be- 
 come of little importance; for, by 8 & 9 Viet. c. 112, it is 
 enacted that every term of years which on the 31st Dec. 
 1845, *should be attendant on the inheritance, 
 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 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 
 
 (v) Willoughby v. Willoughby, 1 Term Rep. 763 ; Opel v. Girdler, 9 
 Ves. 509 ; 3 Sug. V. & P. 10th edit. c. 15. 
 (w) Infra, Priorities. 
 (ww} See the case of Doe d. Clay v. Jones, 13 Q. B. 774.
 
 ORDINARY AND CHARITABLE TRUSTS. 149 
 
 interest is transferred, may not be practicable; and there- 
 fore in order to pursue as nearly as possible the analogy 
 of law, it is required that the assignment 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, (z) 1 It is 
 otherwise with respect to real estate; for real estate 
 passes by title, and not by delivery, and the character of 
 the grantor's interest, whether legal or equitable, does 
 not affect the terms of his deed. The period at which 
 the transfer of an equity becomes complete is often ma- 
 terial to be considered, where such transfer has been 
 made without consideration, or where several purchasers 
 or encumbrancers have acquired conflicting rights ; but 
 its effect in these cases will be hereafter separately con- 
 sidered.^) 
 
 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 en- 
 forcing a trust, is in strictness merely a right of litigation ; 
 and except in the case of negotiable securities, is not 
 capable of transfer at law. But if it be in substance a 
 right *of property, it is treated in equity as of that p~i-i 
 character, and may be transferred by an assign- 
 
 (x) Dearie v. Hall, 3 Russ. 1 ; Foster . Cockerell, 3 Cl. & F. 456 ; Jones 
 v. Jones, 8 Sim. 633 ; Wilmont v. Pike, 5 Hare 14 ; [Voyle v. Hughes, 2 
 Sm. & Giff. 18 ; see Kekewich v. Manning, 1 De Gex, Macn. & G. 176 ; 
 Stocks v. Dobson, 4 Id. 11 ; Hill on Trustees 140 and 698, 4th Am. ed.] 
 
 (y) Infra, Priorities. 
 
 1 In the United States, however, notice is not generally held necessary 
 to perfect the assignee's title : U. S. v. Vaughan, 3 Binn. 394 ; Muir v. 
 Schenck, 3 Hill 228 -, Littlefield v. Smith, 17 Maine 327 ; Warren v. Cope- 
 lin, 4 Mete. 594 ; contra, Vanbuskirk v. Ins. Co., 14 Conn. 145. Though 
 a payment without notice is, of course, good.
 
 150 ADAMS'S DOCTRINE OF EQUITY. 
 
 ment or agreement to assign perfected by notice to the 
 party liable. If the right is not substantially a title to 
 property, but a mere litigious right, as, for instance, the 
 right of action for a personal wrong, or for suing in equity 
 to redress a fraud,. it cannot be made the subject of as- 
 signment ; for the transaction would be directly adverse 
 to the policy of the law, which prohibits the encourage- 
 ment of litigation, by the introduction of strangers to 
 enforce rights which the owners are not disposed to 
 maintain, (z) 
 
 The regular mode of transferring a debt is by an in- 
 strument purporting to assign it, accompanied by a power 
 of attorney to sue in the name of the assignor, and fol- 
 lowed 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 effect- 
 ual, provided that it amount to an appropriation to the 
 assignee ; for inasmuch as the fund is not assignable at 
 law nor capable of manual possession, an appropriation is 
 all that the case admits, (a) 
 
 Possible and contingent interests are also to a certain 
 extent assignable in equity, 1 on the same principle as 
 
 (z) Prosser F. Edmonds, 1 Y. & C. Exch. 481 ; Wood v. Downes, 18 
 Yes. 120 ; Hunter v. Daniel, 4 Hare 420. [See American note to Row v. 
 Dawson, 2 Lead. Gas. Eq. 612.] 
 
 (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, Id. 458 ; 1 Ph. 153 ; Malcolm v. Scott, 3 Hare 39, 
 52; Braybrooke v. Meredith, 13 Sim. 271. 
 
 1 The student will find a very clear statement of the difference between 
 assignments of future and contingent interests in equity and at law, in the 
 opinion of Lord Chan. Westbury in Holroyd v. Marshal, 10 H. L. Gas. 191 ; 
 see also, Hart v. The Farmers' Bank, 33 Yerm. 252 ; Stover v . Eycleshimcr. 
 46 Barb. 84 ; Pennock v. Coe, 23 How. 117; Bayler v. The Commonwealth,
 
 ORDINARY AND CHARITABLE TRUSTS. 151 
 
 chases in action, although, by reason of their being devoid 
 of any substantive or certain character, they were until 
 8 & 9 Viet. c. 106, and in the case of personal estate still 
 are, incapable of assignment at law. In this way a con- 
 tingent 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 assign- r#^{--i 
 ment a mere expectant possibility. (#) There is 
 however, a distinction between choses in action and pos- 
 sibilities in personalty with respect to the completion of 
 an equitable transfer. In the case of choses in action, 
 the transfer may be completed, as we have already seen, 
 by a constructive delivery ; but in the case of possibilities, 
 the interest, though a 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 re- 
 mains in fieri until the contingency determines, (c) 
 
 The next subject for notice is the legal ownership of 
 the trustee, which confers on him at law an absolute do- 
 minion, 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. 
 
 (6) Langton v. Horton, 1 Hare 549. 
 
 (c) Meek r. Kettlewell, 1 Hare 464 ; 1 Ph. 342. [See, however, contra, 
 Kekewich v. Manning, 1 De G., M. & Gord. 176.] 
 
 40 Penn. St. 37; Hill on Trustees 44; see on this subject, Mitchell v. 
 Winslow, 2 Story 630; Leteher v. Shroeder, 5 J. J. Marsh. 513 ; Varick v. 
 Edwards, 1 Hoff. Ch. 382 ; Merriweather v. Herran, 8 B. Monr. 162.
 
 152 ADAMS'S DOCTRINE OF EQUITY. 
 
 A trustee is bound to use his legal dominion for those 
 purposes, and those only, which were contemplated by 
 the grantor. 1 If, for instance, he is trustee for sale of an 
 estate, he must not sell unless there be a legitimate object 
 in view ; and, when he does sell, he must take care that 
 the interests of all his cestuis que trust are duly consulted, 
 and that all prudent precautions are taken for obtaining 
 the full value, (d) 2 If he is a trustee of renewable lease- 
 holds, he must be careful that the renewals are made in 
 the usual course, and the requisite funds provided for that 
 purpose, (e) If he is a trustee of money secured by cove- 
 nant, *or of other outstanding property, he must 
 realize or secure it with all convenient speed. (/) 
 And if he is trustee of moneys for the purpose of invest- 
 ment, he should invest them in three per cent, consols as 
 the fund sanctioned by the Court, or on such other securi- 
 
 (d) Ord v. Noel, 5 Mad. 438 ; Mortlock v, Buller, 10 Ves. 292, 308 ; Wil- 
 kins v. Fry, 1 Meriv. 244, 268 ; 2 Sug. on Powers 486. [See for American 
 authorities on powers of sale, notes to Hill on Trustees, 4 Am. ed., 735.] 
 
 (e) Lord Montfort v. Lord Cadogan, 17 Ves. 485; Greenwood v. Evans, 
 4 Bea. 44 ; Shaftesbury v. Marlborough, 2 M. & K. Ill ; Bennett v. Col- 
 ley, 2 M. & K. 233. 
 
 (f) Maitland v. Bateman, 13 Law Journ. 273. 
 
 1 A sale made under a deed of trust, after the debt secured by it has 
 been fully paid, is void, there being no valid subsisting power under the 
 deed : Penny v. Cook, 19 Iowa 538. 
 
 2 The sale must be effected within a reasonable time : Walker v. Shore, 
 19 Ves. 387 ; but it must not be hastened to a disadvantage : Hunt v. Bass, 
 2 Dev. Eq. 297 ; and the court, on proper cause shown, will give a trustee 
 leave to delay a sale : Morris v. Morris, 4 Jur. N. S. 802-964. As a general 
 rule-the sale should be at auction, although it is not absolutely essential, 
 and private sales are now allowed and regulated by statute in England and 
 in some of the United States as in New York and Pennsylvania. Where, 
 however, the trust instrument expresely requires a public sale, that method 
 must be adopted : Greenleaf v. Queen, 1 Peters 145. A power of sale will 
 not authorize an exchange : Blnggold v. Ringgold, 1 H. & G. 11.
 
 ORDINARY AND CHARITABLE TRUSTS. 153 
 
 ties, if any, as are authorized by his trust j 1 and should at 
 the same time execute a declaration of trust, so that in 
 the event of his bankruptcy or insolvency the fund may 
 be identified, (g) 2 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 ; (h) 
 nor would a power to lend generally on personal security 
 authorize an advance to a trader by way of accommoda- 
 tion, or a loan to one of the trustees themselves, (i) If 
 the fund is already outstanding" on personal security, but 
 no authority is given to leave it so, the trustee is bound 
 
 (g) Clough c. Bond, 3 M. & C. 496 ; Stickney v. Sewell, 1 M. & C. 8 ; 
 Ames v. Parkinson, 7 Bea. 379. 
 
 lh) Bullock r. Wheatley, 1 Coll. 130; Styles v. Guy, 4 Y. & C. 571, in 
 note ; Walker v. Symonds, 3 Sw. 1, 62. 
 
 (i) Langston v. Ollivant, Coop. 33 ; v. "Walker, 5 Russ. 7. 
 
 1 Where trust funds are directed by will to be invested in certain securi- 
 ties, and such securities cannot be purchased, the trustee may invest in 
 such a manner as shall seem to him safe and productive : Mclntyre v. 
 Zanesville, 17 Ohio 352. Quaere, if he can without applying to the court 
 for authority. 
 
 2 Investments -by trustees are generally regulated both in England and 
 in this country by statute. See Hill on Trustees 560-561, in notes. The 
 investment of trust funds in personal security is a breach of trust : Nyce's 
 Estate, 5 W. & S. 254 : Wills' Appeal, 22 Penn. St. 330 ; Smith v. Smith, 
 4 John. Ch. 281 ; De Jarnette r. De Jarnette, 41 Ala. 708. Massachu- 
 setts appearing to be the only state in which this rule does not obtain : 
 Lovell r. Minot, 20 Pick. 119; Clark v. Garfield, 8 Allen 427. Trustees 
 are chargeable with interest if they have made use of the money them- 
 selves, or have been negligent in not paying it over, or properly investing 
 it : Bruner's Appeal, 57 Penn. St. 46. If the fund is directed to be in- 
 vested at a specified time, it is to be considered as inwsted at that time, 
 and bearing interest from that date : Halsted v. Meeker' s Ex'rs, 3 Green 
 
 X. J.) 136. And in some cases they are chargeable with compound in- 
 terest. The authorities on this subject will be found collected in the notes 
 to Ilill on Trustees, pp. 570-571, 4th Am. ed.
 
 154 ADAMS'S DOCTRINE OF EQUITY. 
 
 to call it in and make a proper investment. If, however, it 
 is invested on an actual security, 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 instru- 
 ment, or is deducible by implication from the character of 
 the trusts. A question as to what will amount to such 
 an implied direction has frequently arisen where property 
 of a less safe or less permanent character than the regular 
 investment of the Court, and therefore yielding a larger 
 immediate income, such as leasehold estates, or foreign 
 funds, has been bequeathed for life with remainder over. 
 The general principle is, that a gift of the kind implies a 
 ^conversion into three per cent, consols, unless 
 there be something in the language of the wil* 
 pointing to a continuance in specie, (k) 1 
 
 A trustee is bound to account for and protect the pro- 
 perty whilst his trust continues. 2 It is one of his principal 
 
 (k) 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, 546. 
 
 1 See a discussion of this question in Hill on Trustees, 4th Am. ed. 597. 
 and American notes, and particularly Scholefield v. Redfern, 32 L. J. Ch. 
 627. In this country the rule of duty for a trustee in investing funds for 
 the benefit of his cestui que trust is, that he is bound to observe the limits 
 prescribed by the terms of the trust, or fairly implied from its nature 
 and objects ; and in selecting an investment within those limits, he is 
 bound to employ such diligence and such prudence in the care and man- 
 agement of the fund, as, in general, prudent men of discretion and intel- 
 ligence employ in their own affairs. This necessarily excludes all specu- 
 lation, and every investment for an uncertain and doubtful use in the 
 market. For it does not follow, that because prudent men, in investing 
 their own funds, often take the hazard of adventures with the hope of 
 growing rich ; therefore a trustee may do so : per Woodruff, J., King v. 
 Talbot, 40 N. Y. 76! All that a court of equity requires from a trustee is 
 common skill, common prudence, and common caution: Neff's Appeal. 57 
 Penn. St. 91. 
 
 2 If trustees either use or mix trust funds with their own, they will be 
 liable for all losses which may arise from their neglect or mismanagement: 
 Case v. Abeel, 1 Paige 393 ; Brackenridge v. Holland, 2 Blackf. 377 ;
 
 ORDINARY AND CHARITABLE TRUSTS. 155 
 
 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 arid 
 payments in respect of it; and that he should be always 
 ready to produce those accounts to his cestuique trust. (I) 
 It is also a most important duty that he should protect 
 the property confided to him whilst the trust continues, 
 and should for that purpose retain the control of it in his 
 own hands. And it has been doubted whether he is even 
 warranted in devising the estate, so as to break the des- 
 cent to his heir, and whether, by so doing, he may not 
 render his executors responsible for any breach of trust 
 by the devisee, (ni) 1 
 
 (I) Pearse v. Green, 1J. & W. 135 ; Freeman v. Fairlie, 3 Meriv. 24, 42. 
 (TO) 1 Jarm. on Wills. 638 ; 2 Id. Appendix. 
 
 Myers v. Myers. 2 McC. Ch. 265 ; Utica Ins. Company v. Lynch, 11 
 Paige 520 ; Mumford v. Murray, 6 John. Ch. 1 ; Hart v. Ten Eyck, 2 Id. 
 513; Marine Bank r. Fulton Bank, 2 Wai. (S. C.) 252; Stanley's App., 8 
 Penn. St. 431 ; Jenkins v. Walter, 8 Gill & J. 218 ; Pennell e. Deffell, 4 
 De G., M. & G. 372 ; Frith v. Cartland, 34 L. J. Ch. 301 ; Hill on Trustees 
 575, note. 
 
 So guardians and trustees may be called to account by infants, and may 
 be required to bring the trust-moneys into court, and to give further secu- 
 rity to account when the infants become of age : Monell v. Monell, 5 John. 
 Ch. 297. Though if a trustee or an executor be robbed of trust-money, 
 it is a good answer to a bill for an account : Furman v. Coe, 1 Cal. Ca. 96. 
 
 If a trustee permit a debtor to retain possession of a trust estate, waste, 
 and use it as his ovrn, he will be held responsible for the injury to the 
 trust fund out of his own estate : Harrison v. Mock, 10 Ala, Rep. 185. 
 
 It has been settled in England, after some fluctuation in authority, that 
 where trustees have a discretion to invest either in stock or real securities, 
 and neglect to make any proper investment, they are chargeable only with 
 the amount of the principal sum and interest, and not with the value of 
 the stock they might have bought. See Robinson v. Robinson, 1 De G., 
 M. & G. 256. in which case Watts '. Girdlestone, 6 Beav. 188 (where a 
 contrary doctrine had been held) was overruled, and the earlier case of 
 Marsh r. Hunter. 6 Mad. 295, approved. 
 
 1 The tendency of authority in England seems now, however, in favor of
 
 1?6 ADAMS'S DOCTRINE OF EQUITY. 
 
 The duty of retaining the control in his own hands pre- 
 cludes the trustee, not only from assigning the property 
 altogether to a stranger, but even from conferring on such 
 stranger a joint authority with himself. 1 It is true that 
 in the latter case, he does not actually part with the 
 estate, but he enables a third party to interfere with his 
 discretion, and defeats pro tanto the object contemplated 
 by the trust, (w) 2 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 employ a steward or 
 agent ; he may direct moneys to be paid into a bank ; he 
 may transmit money by means of bills drawn on respect- 
 able parties, and so forth; and if there has been sufficient 
 l~* r 8T *ground for his so doing, and he take care to keep 
 the fund separate from his own property, he will 
 not be answerable for incidental loss.(o) 3 
 
 () Sal way v. Salway, 4 Russ. 60 ; 2 R. & M. 215. 
 
 (o) Wren v. Kirton, 11 Ves. 377; Massey v. Banner, 1 J. & W. 241 ; 
 Clough v. Bond i 3 M. & C. 490 ; Drake . Kartyn, 1 Bea. 525 ; Matthews 
 . Brise, 6 Bea. 239. 
 
 the validity of such a devise : see Hill on Trustees, 4th Am. ed. 436, note ; 
 Fonda v. Penfield, 56 Barb. (N. Y.) 503 ; Schenck . Schenck's Ex'rs., 1 
 Green (N. J.) 174. Special statutory provisions in some of the United 
 States, obviate the necessity of this discussion. 
 
 1 A trustee who has only delegated discretionary power cannot give a 
 general authority to another to execute such power, unless he is specially 
 authorized to do so by the deed or will creating the trust ; and when an 
 estate is devised with power to sell, a general authority to an agent to sell 
 and convey lands belonging to the estate, or to contract absolutely for the 
 sale of such lands, cannot be legally given by the trustees : Hawley v. 
 James, 5 Paige 323 ; Berger . Duff, 4 John. Ch. 368 ; Black v. Erwin, 
 Harper's Law 411 ; though see Sinclair v. Jackson, 8 Cowen 582. In 
 some states the power of trustees to ac\ by attorney has been enlarged by 
 statute; such is the case in Tennessee and Pennsylvania. 
 
 2 Sugden v. Crossland, 3 Sm. & Giff. 192. 
 
 3 Sinclair v. Jackson, 8 Cowen 532 ; Hawley v. James, 5 Paige 487.
 
 ORDINARY AND CHARITABLE TRUSTS. 157 
 
 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-trus- 
 tees. For when several trustees are appointed, the pro- 
 perty is committed to the charge of all, and the cestui que 
 trust is entitled to the vigilance of all. 1 
 
 It is not meant that in every 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 respon- 
 sible for their own acts only, and not for those of each 
 other. If, for instance, there be a sum of money paya- 
 ble to several trustees, it is sufficient that one should 
 
 1 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 : Yandever's Appeal, 8 W. & S. 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-trus- 
 tee, 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 & J. 157; Spencer v. Spencer, 11 Paige 
 299 ; but see 3 Ala. 83 ; 3 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 . 
 Davidson, 2 Dev. & Bat. Ch. 155. But a trustee is not liable for money 
 received by his co-trustee, in the regular disckarge 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 r. Monell, 5 John. Ch. 296. 
 
 The common law made no provision for the execution of a joint trust by 
 one of the trustees, where the co-trustee, by reason of lunacy or other 
 inability, becomes incompetent to execute the trust : In the matter of 
 "W'adsworth, 2 Barb. Ch. 381. But by special statute, the court may 
 remove the incompetent trustee, as in the state of New York : Ibid.
 
 158 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 miscon- 
 duct ; because, as no single trustee has any separate 
 authority, the receipt would not be valid without the sig- 
 nature of all. It is otherwise in regard to executors; 1 
 for the receipt of one is a valid discharge; and, therefore, 
 if all join, it is treated, in the absence of special circum- 
 stances, as an admission that the money was under the 
 control of all.Qt?) 2 
 
 (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. 
 
 1 In some cases, in the United States, it has been held, that this distinc- 
 tion as to executors had been now broken down : Stell's App., 10 Penn. St. 
 152 ; Ochiltree v. Wright, 1 Dev. & Batt. Eq. 336. 
 
 2 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 England. The 
 rule has been most frequently stated to be that each is responsible 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 primd 
 facie, is not, as in the case of executors, 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 o* more of the co-trustees, the others not cog- 
 nisant 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 manage- 
 ment of the trust, or is suffering under pecuniary embarrassment, the co- 
 trustees will be responsible, 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
 
 ORDINARY AND CHARITABLE TRUSTS. 159 
 
 The cases, however, in which joint trustees may 
 permit some of their body to act in the management 
 without themselves incurring personal liability, are very 
 different from those where a trustee so conducts himself 
 as to throw the whole *trust fund into the hands of p^ori 
 his colleagues, and to abandon the interests which 
 it is his duty to protect. Any conduct of this latter 
 kind is a dereliction from duty, and will make him re- 
 sponsible for consequent loss. If, for instance, he volun- 
 tarily 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 facilities for 
 it, as by suffering his co-trustee to detain the trust-money 
 for a long period, without security ; or even if he unne- 
 cessarily incur the risk of it by parting with that control, 
 which has been intrusted to him ; as by a mutual agree- 
 ment between himself and his co-trustee, that one shall 
 have the exclusive management of one part of the pro- 
 perty, and the other of the other part, he will be charge- 
 able for the result of his misconduct or negligence, to the 
 full extent of any mischief incurred.^) 
 
 (g) Booth v. Booth, 1 Bea. 125 ; Broadhurst r. Balguy, 1 N. C. C. 16. 
 
 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 
 responsible 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 invest- 
 ment 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, un- 
 less 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. Gas. Eq. 718 ; Irwin's Appeal, 35 
 Penn. St. 294 ; Hill on Trustees, 2d Am. ed. 470; Story's Eq., sec. 1280, 
 &c. See Chandler v. Fillett, 25 L. J. Ch. 505 ; Cottam v. Eastern Counties 
 Railroad Co., 1 Johns. & H. 243 ; Mendes . Guedalla, 2 John. & H. 259.
 
 1GO ADAMS'S DOCTRINE OF EQUITY. 
 
 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 generally do 
 so, whenever a reasonable doubt exists. 
 
 When the trust is at an end, the trustee is bound to 
 restore the estate to the parties entitled, and for that 
 purpose to make such conveyance as they may require, 
 receiving from them a release of his trust, (r) 1 
 
 Lastly, a trustee must not avail himself of his fiduciary 
 character for any object of personal benefit. His funda- 
 mental 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 purchase will 
 inure for the benefit of the trust ;(s) 2 if a trustee or exe- 
 r#prn cutor, *holding renewable leaseholds, renew in his 
 own name, he cannot hold for himself, even though 
 a renewal on the former trusts may have been refused by 
 the lessor; (t) and the same result will follow on a renewal 
 by a mortgagee or partner, or by a tenant for life ; for 
 
 (r) Goodson v. Ellison, 3 Russ.- 583 ; Holford v. Phipps, 3 Bea. 434 ; 
 Whitmarsh v. Robertson, 1 Y. & C. 715 ; Hampshire v. Bradley, 2 Coll. 34. 
 
 () *x fcarte Lacey, 6 Yes. 625 ; Hamilton . Wright, 9 Cl. & F. Ill ; 
 Ex parte James, 8 Yes. 337, 345. 
 
 (t) Rumford Market Case, Sel. Ch. Ca. 61 ; James v. Dean, 11 Yes. 383 ; 
 Randall v. Russell, 3 Meriv. 190. 
 
 1 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. Mul- 
 lin, 1 Drewry 300 ; Hill on Trustees, 4th Am. ed. 897. 
 
 * Greeny. Winter, 1 John. Ch. 26 ; Yan Home v. Fonda, 5 Id. 409 ; But- 
 ler v. Hicks, 11 Sm. & Marsh. 78 ; Mathews v. Dradaud, 3 Dessaus. 25; 
 Irwin v. Harris, 6 Ired. Eq. 221.
 
 ORDINARY AND CHARITABLE TRUSTS. 161 
 
 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. (u) 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 addi- 
 tional balance, (v) 1 
 
 The most obvious instance of the abuse of a fiduciary 
 character is, where a trustee for sale or purchase, attempts 
 to buy from or sell to himself. The permitting such a 
 transaction to stand, however honest it might be in the 
 particular case, would destroy 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 appear- 
 ance, but which from the infirmity of human testimony, 
 might be grossly otherwise. It is not therefore necessary 
 to show that the trustee has in fact made an improper 
 advantage ; but the cestui que trust, if he has not confirmed 
 the transaction with full knowledge of the facts, may at 
 his option set it aside. The rule, 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 
 
 (u) Stone v. Theed, 2 B. C. C. 243 ; Waters . Bailey, 2 N. C. C. 219; 
 Featherstonehaugh v. Fenwick, 17 Ves. 298. 
 
 () Heathcote v. Hulme, 1 J. & W. 122 ; Moons . De Bernales, 1 Rusa. 
 301 ; Melland . Gray, 2 Coll. 295 ; [Royer's App., 11 Penn. St. 36 ; Stan- 
 ley's App., 8 Id. 431 ; Jenkins v. Walter, 8 Gill & J. 218.] 
 
 1 See Pennell v. Deffell, 4 De G., M. & G. 372 ; Frith v. Cartland, 34 L. 
 J. Ch. 301 ; Commonwealth v. McAlister, 28 Penn. St. 480 ; School v. Kir- 
 win, 25 111. 73 ; Kip v. The Bank of New York, 10 John. 65. 
 11
 
 162 ADAMS'S DOCTRINE OF EQUITY. 
 
 divest himself of all advantage which his character as 
 l~*fi"n trustee m ight confer, and *must prove, if the trans- 
 actions be afterwards impugned, that it was in all 
 respects fair and honest, (w) 1 
 
 (w) Ex parte Lacy, 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 ed! c. xix, s. 2. 
 
 1 Michoud v. Girod, 4 How. U. S. 503 ; Drysdale's Appeal, 14 Penn. St. 
 531 ; Winter v. Geroe, 1 Hurlst. Ch. 319 ; Hudson v. Hudson, 5 Munf. 
 180 ; Edmonds v. Crenshaw, 1 McCord's Ch. 252 ; Baines v. McGee, 1 Sm. 
 & M. 208 ; Baxter v. Costin, 1 Busbce's Eq. (N. C.) 262 ; De Caters v. Le 
 Ray de Chaumont, 3 Paige Ch. 178 ; Child v. Brace, 4 Id. 309 ; 
 Campbell v. Johnston et al., 1 Sandf. Ch. 148 ; Boyd v. Hawkins, 2 Ired. 
 Ch. 304 ; Mathews v. Dragaud, 3 Dessaus. 25 ; 1 Gilm. 614 : Davis v. Simp- 
 son, 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. Ch. 174 ; Haddix's Heirs v. Haddix's Adurrs., 5 Lit. 202 ; Dorsey v. 
 Dorsey, 3 Har. & J. 410 ; Breckenridge v. Holland, 2 Blackf. 377 ; Case v, 
 Abeel, 1 Paige 393 ; Davoue v. Fanning, 2 John. Ch. 252 ; Churchill's 
 Heirs v. Akin's Adm'rs., 5 Dana 481 ; Torrey v. Bank of Orleans, 9 Paige 
 650; Remick v. Butterfield, 11 Foster 70; Lenoxx. Lotrebe, 1 Hempst. 25; 
 Lefevre v. Laraway, 22 Barb. 167 ; Blauvelt v. Ackerman, 20 N. J. Eq. 141 ; 
 Washington, &c., Railroad Co. v, Alexander Railroad Co., 19 Gratt (Va.) 
 592 ; Renew v. Butler, 30 Ga. 954 ; Sypher v. McHenry, 18 Iowa 232. A 
 trustee incompetent to purchase on his own account, cannot purchase as 
 agent for a third person: Hawley v. Cramer, 4 Cow. 717; North Balti- 
 more, &c., Association v. Caldwell, 25 Md. 420. 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. Squib, 12 Penn. St. 296; 
 Buckles v. Lafferty, 2 Rob. (Va.) 292 ; Lewis v. Hillman, 3 II. Lords 
 Cases 629. But in Beeson v. Beeson, 9 Penn Si. 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. Ch. 27 ; see also, Boyd v. Hawkins, 2 Dev. Ch. 195 ; Van Home 
 v. Fonda, 5 John. Ch. 409. And it seems a trustee may not purchase 
 the trust property for his own benefit, when it is sold under a judicial 
 tl-ecree, 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; Beeson v. Beeson, 9 Penn. St. 279; Wallingtons Est., 1
 
 ORDINARY AND CHARITABLE TRUSTS. 163 
 
 The restraint on any personal benefit to the trustee is 
 not confined to his dealings with the estate, but extends 
 
 Ashm. 307 ; Ricketts v. Montgomery, 15 Md. 46 ; Jamison v. Glascock, 
 29 Missouri 191 ; Bank v. Dubuque, 8 Clarke (la.) 277 ; Obert . Obert, 
 1 Beas. 423 ; Elliott v. Pool, 3 Jones Eq. 17 ; Hoitt v. "Webb, 36 N. Hamp. 
 158 ; Chandler v. Moulton, 33 Verm. 245 ; Parker v. Vose, 45 Maine 
 54 ; Freeman v. Harwood, 49 Id. 195 ; Martin v. "Wyncoop, 12 Ind. 
 266. But see, contra, Fisk . Sarber, 6 W. & S. 18 ; Chorpennings 
 Appeal, 32 Penn. St. 315 ; Elrod v. Lancaster, 2 Head 571 ; Mercer r. 
 Xewcum, 23 Georgia 151 ; Huger v. Huger, 9 Rich. Eq. 217 ; Earl v. Hal- 
 sey, 1 McCart. 332. A trustee permitted to bid at his own sale, must act 
 within the strictest line of his responsibility: Cadwalader's Appeal, 64 
 Penn. St. 293. 
 
 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 . Bruen, 4 
 Sand. Ch. 223 ; Knight . Marjoribanks, 2 Macn. & Gord. 10 ; Murdock's 
 Case, 2 Bland 461 -, unless with a power of sale : Waters . Groom, 11 Cl. 
 
 6 Fin. 684; Mapps v. Sharpe, 32 Illinois 13; or he buys in without a 
 power and without a foreclosure : Gunn . Brantley, 21 Alab. 633. But 
 a second mortgagee may purchase under a power of sale exercised by the 
 first mortgagee : Shaw v. Bunny, 34 L. J. Ch. 257 ; 11 Jur. N. S. 99, and 
 see Britton v. Lewis, 8 Rich. Eq. 271. And where bond fide creditor after- 
 wards 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, Peters Ch. 364 ; but see Irwin v. Harris, 6 Ired. Eq. 221. 
 If a trustee for creditors sues out a mortgage belonging to the trust, and 
 purchases the real estate at such sale in his own name it is as trustee for 
 the creditors: Campbell v. McLain, 51 Penn. St. 200. 
 
 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 eqftity : Pennock's 
 App., 14 Penn. St. 446 ; Bruch v. Lantz, 2 Rawle 392 ; Harrington v. 
 Brown, 5 Pick. 519 ; Dunlap v. Mitchell, 10 Ohio 117; Scott v. Freeman, 
 
 7 Sm. & M. 410 ; Jenison v. Hopgood, 7 Pick. 1 ; Musselmen v. Eshelman, 
 10 Penn. St. 374 : Hawley v. Cramer, 4 Cowen 719 Todd v. Moore, 1 
 Leigh 457 : Villines r. Xorflett, 2 Dev. Ch. 167 ; Roberts . Roberts, 63 N. 
 C. 27 ; Boerum r. Schenck, 41 X. Y. 182 ; Coffee v. Kuffin, 4 Cold. (Tenn.) 
 487; Carter r. Thompson, 41 Ala. 375; Buell v. Buckingham, 10 Iowa 
 284. It has been held, however, that a court of equity will never aid a
 
 164 ADAMS'S DOCTRINE OF EQUITY. 
 
 even to remuneration for his services, and prevents him 
 from receiving anything beyond reimbursement of his 
 expenses, unless there be an express contrary stipula- 
 tion. 1 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. 2 But if the trustee is himself a solicitor, he 
 
 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 of the modern authorities. See Hill on Trustees, 4th Am. ed. 249, 
 837 ; Salmon v. Cutts, 4 De G. & S. 131. 
 
 See, as to the power of a trustee to purchase the trust fund, if the bene- 
 ficiary agree to the purchase : Field v. Arrowsmith, 3 Humph. (Tenn.) 
 442 ; and also, Coles v. Trecothick, 9 Ves. 244 ; Lacy, Ex parte, 6 Id. 626 ; 
 Henricks v. Robinson, 2 John. Ch. 311. A sale by a trustee to his cestui 
 que trust, stands on the same footing as a purchase by a trustee for his 
 cestui que trust, and is void, especially if the trustee has taken any advan- 
 tage of the cestui que trust : McCants v. Bee, 1 McCord Ch. 383. 
 
 1 The rule under consideration applies only to transactions inter vivos, for 
 gifts by will always implies bounty, and a trustee may receive a benefit 
 under the will of his cestui que trust : Hindson v. Weatherill, 5 De G., M. 
 <fc G. 361 ; Stump v. Gaby, 2 Id. 623 ; though see Waters v. Thorn, 22 Beav. 
 547. 
 
 2 Expenses incurred unnecessarily and against the remonstrance of the 
 cestui que trust will not be allowed : Berryhill's Appeal, 35 Penn. St. 245. 
 Trustees are entitled to expense incurred in taking the opinion of counsel 
 as to the trust estate: Fearns v. Young, 10 Vesey 184; McElhenny's Ap- 
 peal, 46 Penn. St. 347. A trustee is liable for the fraud of his solicitor, 
 although he may have used ordinary discretion in employing him : Bos- 
 tock v. Floyer, L. R. 1 Eq. 26 ; Sutton v. Wilder, L. R. 12 Eq. 373 ; and 
 also for his negligence: Hopgood v. Parkin, L. R. 11 Eq. 74. 
 
 Whether the trustee, however, can claim compensation or not, he is en- 
 titled to be fully reimbursed for all expenses incurred and responsibilities 
 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
 
 ORDINARY AND CHARITABLE TRUSTS. 165 
 
 cannot of course charge the trust for his own profes- 
 sional services, so as to derive in that form a personal 
 benefit, (x) l 
 
 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 refuses to per- 
 form a particular duty, or threatens to do an unauthorized 
 
 () Moore c. Frowd, 3 M. & C. 45 ; Bainbridge v. Blair, 8 Bea. 588. 
 Though see Cradock v. Piper, 1 Maen. & Gord, 668. [Cradock v. Piper, 
 was disapproved in Broughton v. Broughton, 5 De G., M. & G. 160. See 
 also, Lyon v. Baker, 5 De G. & Sm. 622 ; Mayer v. Gulluchat, 6 Rich. Eq. 
 1 ; Clack v. Carlon, 7 Jur. N. S. 441 and Id. part 2, p. 211]. 
 
 App., 2 Penn. St. 216 ; Morton v. Adams, 1 Strobh. Eq. 76 ; Hatton . 
 Weems, 12 G. & John. 83 ; Morton v. Barrett, 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 W. & S. 100. 
 
 1 The rule stated in the text was adopted in some of the earlier cases in 
 this country : see Green v. Winter, 1 John. Ch. 37, 38 ; Manning v. Man- 
 ning, Id. 532 ; Mumford . Murray, 6 Id. 17 ; State Bank . Marsh, Sax- 
 ton 288 ; Egbert v. Brooks, 3 Harring. 110; Miles . Bacon, 4 J. J. Marsh. 
 457 ; Kendall v. The New Eng. Carpet Co., 13 Conn. 384 ; though com- 
 missions might be agreed upon at the creation of the trust : Boyd . Haw- 
 kins, 2 Dev. Ch. 212. 
 
 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 Ch. 398 ; Ringgold v. Ringgold, 1 liar. & 
 Gill. 11 ; Boyd v. Hawkins, 2 Dev. Ch. 329 ; Miller v. Beverleys, 4 Hen. & 
 M. 415; Jenkins v. Eldredge, 3 Story 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.
 
 166 ADAMS'S DOCTRINE OF EQUITY. 
 
 act, he may be compelled to act in the one case, or re- 
 strained in the other ; ( y] or, if necessary, he may be 
 removed altogether from the trust, and another appointed 
 in his room.(0) 1 
 
 If a breach of trust has been committed, the trustee 
 P621 * w ^ ke li^le 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 contribution may 
 be enforced as between themselves. And if any third 
 party has knowingly reaped the benefit of the breach of 
 trust, the loss may be eventually cast on him. 2 If the 
 cestuis que trustent themselves, being sui juris, have con- 
 sented to the act, they cannot afterwards be heard to 
 complain of it; 3 and if some only out of several have so 
 consented, the trustees 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, 
 
 (y] Kirby v. Marsh, 3 Y. & C. 295 ; Att.-Gen. v. Mayor of Liverpool, 1 
 M. & C. 171, 210. 
 
 (z) Att.-Gen. . Shore, 9 01. & F. 355 ; Att.-Gen. v. Caius College, 2 
 Keen 150. 
 
 (a) Walker v. Symonds, 3 Sw. 1, 75; Wilson v. Moore, 1 M. & K. 127; 
 Greenwood v. Wakeford, 1 Bea. 576 ; Fyler . Fyler, 3 Id. 550 ; Woodyatt 
 v. Gresley, 8 Sim. 180 ; Fuller v. Knight, 6 Bea. 205. 
 
 1 See note to page 38, ante. 
 
 2 Trull v. Trull, 13 Allen (Mass.) 407. 
 8 Campbell v. Miller, 38 Geo. 304.
 
 ORDINARY AND CHARITABLE TRUSTS. 167 
 
 and have dealt with the trustee on the footing of that 
 acquiescence, the breach of trust will be considered as 
 waived, (b) But unless there be acquiescence in the ces- 
 tuis que trust ent, the mere lapse of time will not bar the 
 liability of an express trustee; for his possession is accord- 
 ing to his title. 1 It is otherwise with regard to persons 
 who, not being themselves express trustees, have acquired 
 property with notice of a trust, or have otherwise become 
 trustees by construction of equity ; for such persons, 
 though bound in equity to perform the trust, are not in 
 strictness existing trustees, but are to be constituted trus- 
 tees by a decree. Their possession, therefore, in the 
 meantime is *adverse to the cestui 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 re- 
 tained.^) 2 
 
 (6) Brice v. Stokes, 11 Ves. 319 ; Walker v. Symonds, 3 Sw. 1, 64, 67 ; 
 Roberts c. Tunstall, 4 Hare 257. [See Hill on Trustees, 4th Am. ed. pp. 
 207 and 460, et seq., where the American cases are collected.] 
 
 (c) Beckford c. Wade, 17 Ves. 99 ; Hovenden r. Annesley, 2 Sen. <fc L. 
 633 ; Wedderburn v. Wedderburn, 2 K. 722 ; s. c. 4 M. & C. 41 ; 3 & 4 
 Wm. 4, c. 27, B. 25. 
 
 (d) Ludlow v. Greenhouse, 1 Bligh, N. S. 17, 57; Rocke v. Hart, 11 
 Vea. 58 : Tebbs r. Carpenter, 1 Madd. 290. 
 
 1 If, however, there is negligence on the part of the cestui que trust in 
 asserting his rights, a court of equity will not, after a long lapse of time, 
 render the trustee liable : Bright v. Legerton, 2 De G., F. & J. 606. But 
 the breach of trust must be distinctly brought to the notice of the cestui 
 que trust ; it is only from the time of such notice that the satutte begins 
 to run in favor of the trustee : Hunter v. Hubbard, 26 Texas 537 ; see 
 also, New Market v. Smart, 45 X. H. 87. 
 
 2 See notes to pages 56, 57, ante.
 
 168 ADAMS'S DOCTRINE OF EQUITY. 
 
 The giving of interest, however, is merely an imperfect 
 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 invested 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 indemnity ; and the 
 trustee may, at the option of the cestui que trust, be com- 
 pelled 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 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 trustee, appears to be doubtful, (e) l If 
 there is also an express direction to accumulate, the re- 
 placement may be extended to the amount of accumula- 
 tion which would have been produced by a proper invest- 
 ment of the dividends. (/) If an improper investment 
 has been made, it is considered, as against the trustee 
 himself, equivalent to no 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. (g) 
 
 If there be circumstances of actual malfeasance, as, for 
 
 ' (e) Byrchall v. Bradford, 6 Madd. 235 ; Watts v. Girdlestone, 6 Bea. 
 188 ; Ames v, Parkinson, 7 Id. 379 ; Shepherd v. Mouls, 4 Hare 500. 
 (/) Pride v. Fooks, 2 Bea. 430. 
 ( g) Lane v. Dighton, Amb. 409 ; Infra, Conversion. 
 
 1 It is now held that the trustee is liable in such case only for principal 
 and interest, and not for the value of the stock. See Hill on Trustees, 4th 
 Am. ed. 567, in note.
 
 ORDINARY AND CHARITABLE TRUSTS. 169 
 
 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 bal- 
 ances in his hands, and resisted payment of debts by a 
 false pretence of outstanding demands. Where the im- 
 proper application has produced an ascertainable profit, 
 as, for example, where the trust money has been applied 
 either solely or as mixed up with other property belong- 
 ing to the trustee, in carrying on a trade or other specula- 
 tion, 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. (A) 1 
 
 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 cost of a suit for rectifying a breach of trust are 
 to some extent dependent on the degree of misconduct. 
 
 (h) Tebbs v. Carpenter, 1 Mad. 290; Crackelt v. Bethune, 1 J. & W. 
 586 ; Docker r. Somes, 2 M. & K. 655. 
 
 (i) Raphael v. Boehm, 11 Ves. 92; 13 Ves. 407, 590 ; Walker . Wood- 
 ward, 1 Buss. 107 ; Tebbs v. Carpenter, 1 Mad. 290 ; Heighington v. Grant, 
 5 M. & C. 258. 
 
 1 On the subject of the liability of a trustee to interest, the cases will be 
 found collected in Hill on Trustees, 4th Am. ed. 568, in note. See supra 
 note to page 56.
 
 170 ADAMS'S DOCTRINE OF EQUITY. 
 
 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, as between solicitor and client, notwithstanding 
 that it includes a prayer for remedying the effect of his 
 misconduct. But he may, at the same time, be com- 
 pelled to pay any additional costs, which that misconduct 
 occasions. 1 
 
 The jurisdiction for compelling admittance to copyholds 
 seems analogous to that for compelling performance of 
 a trust. For the copyholder has the beneficial interest 
 in the land, and the lord is bound 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 ex- 
 amine it ; and that if judgment be given in the lord's 
 Court on a copyholder's petition, though no appeal or writ 
 of error will lie, yet the Court of Chancery will cor- 
 rect the proceedings, if anything be done against con- 
 science.^) 
 
 Besides the ordinary trusts which we have just con- 
 sidered, there is another class of trusts, those for char- 
 itable 'and public purposes, where the legal ownership is 
 
 (k) Christian v. Corren, 1 P. Wms. 329 ; Clayton . Cookes, 2 Atk. 449 ; 
 Ash v. Rogle, 1 Vern. 367 ; Williams v. Lord Lonsdale, 3 Vos. 752 ; Wid- 
 dowson v. Lord Harrington, 1 J. & W. 532. 
 
 1 See Hill on Trustees, p. 856, ct seq., 4th Am. ed.
 
 ORDINARY AND CHARITABLE TRUSTS. 171 
 
 conferred on a fiduciary holder, but the trust is declared 
 for general objects, and not for the benefit of a specific 
 
 owner. 1 
 
 1 Upon the subject of charitable trusts, bequests for pious and charitable 
 uses, and also the doctrine of cy pres, see the following authorities : Bap- 
 tist 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 Associa- 
 tion v. Smith, 3 Peters' Appendix 481 ; Executors of Burr v. Smith et al., 
 7 Verm. 241 ; Gallego's Executors v. Attorney-General, and Id. v. Lambert 
 and wife, 3 Leigh 450 ; Shotwell's Executor v. Mott et al., 2 Sandf. Ch. 
 46 ; Vidal et al. v. Girard Executors, 2 How. U. S. 127 ; City of Philadel- 
 phia v. Girard's Heirs, 45 Penn. St. 9 ; Miller v. Porter, 53 Penn. St. 292. 
 Mr. Justice Baldwin, in the celebrated case of Magill v. Brown, which in- 
 volved the construction of the will of Sarah Zane (reported in Brightly's 
 (Pa.) Xisi Prius Reports, p. 347, <tc.) gave to the subject of bequests for 
 pious and charitable uses, a most profound investigation, and condensed in 
 the elaborate and learned opinion, which he delivered in that cause, all 
 the English and American learning upon this most interesting branch of 
 equity jurisprudence. In some of the United States, where the Statute of 
 43 Elizabeth is not in force, it has been held that the same liberal princi- 
 ples as to charitable trusts, were applied in the Court of Chancery at com- 
 mon law, independently of that statute ; and that charities within its defi- 
 nition 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 . Girard. 2 How. S. C. 127 ; 
 Brown v. Kelsey, 2 Cush. 243 5 Burr v. Smith, 7 Verm. 241 ; King v. Wood- 
 hull, 3 Edw. Ch. 79 ; Banks v. Phelan, 4 Barb. S. C. 80 ; Shotwell v. Mott, 
 2 Sandf. Ch. 46 ; Xewcomb . St Peter's Church, Id. 636 ; Williams v. 
 Williams, 4 Selden 525; McCaughal v. Ryan, 27 Barb. 376; Bascomb v. 
 Albertson, 34 N. Y. 584; Whitman 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. . Jolly, 1 Rich. 
 Eq. 99 ; Beall v. Fox, 4 Geo. 404 ; Wade v. American Col. Soc., 7 S. & M. 
 663; Dickson v. Montgomery, 1 Swan (Tenn.) 348; Carter v. Balfour, 19 
 Ala. 814 ; Urmey's Executors v. Woodon, 1 Ohio St. N. S. 160 ; White . 
 Fisk, 22 Conn. 31 ; Levy v. Levy, 33 N. Y. 97. 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 ; 
 Tainter . Clark, 5 Allen 66 ; Perin . Carey, 24 Howard 465 ; Hill on 
 Trustees 200, 201, 701. 
 
 In Virginia and Maryland, however, it has been decided that neither the
 
 172 ADAMS'S DOCTRINE OF EQUITY. 
 
 The meaning of the word charity, as applied to a trust, 
 is different from any signification which it ordinarily bears. 
 
 The word in its widest sense denotes all the good affec- 
 tions which men ought to bear towards each other; in its 
 most restricted and most usual sense, relief of the poor. 
 
 In neither of these senses is it employed by the Court of 
 Chancery, but a signification has been affixed to it, de- 
 rived *for the most part from the enumeration 
 given in the Statute of Charitable Uses. (7) And 
 the purposes enumerated in that act, together with others 
 analogous to them, are accordingly considered as the only 
 charities which the Court will recognise. 
 
 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 
 
 (Z) 43 Eliz. c. 4. 
 
 statute nor the principles which it embodies, are in force : Baptist Associ- 
 ation v. Hart, 4 Wheat. 1 ; Wheeler v. Smith, 9 How. U. S. 58 ; Gallego v. 
 Att.-G'en., 3 Leigh 451 ; Carter v. Wolfe, 13 Grat. 301 ; Dashiell v. Att.- 
 Gen., 5 Harr. & J. 392; 6 Id. 1; Wilderman v. Baltimore, 8 Md. 551. 
 
 In the recent case 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 inde- 
 pendent 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 sitce.
 
 ORDINARY AND CHARITABLE TRUSTS. 173 
 
 it is not necessarily confined to them ; and gifts, not within 
 its letter, have been deemed charitable within its equity. 
 Such, for instance, are gifts for religious or educational 
 purposes ; for the erection of a hospital or a sessions 
 house ; or for any other beneficial or useful public pur- 
 pose, not contrary to the policy of the law, But a gift 
 merely for useful or benevolent purposes, without specify- 
 ing what the purposes are, does not constitute a gift to 
 charity ; because there may be many useful or benevolent 
 purposes, which the Court cannot construe to be charit- 
 able ; a gift also to mere private charity is not within the 
 analogy of the statute ; and although there are cases 
 where the Court has apparently interfered in favor of 
 private charity, yet such cases have in fact been those 
 not of gifts to charitable purposes, but of gifts to indi- 
 viduals with a benevolent purpose. Such, for example, 
 would be a gift to " poor relations." That is not a charity 
 in the legal sense of the term, but a trust to give to poor 
 relations; and the only question under such a trust is, 
 whether the objects are sufficiently specified to enable 
 *the Court to execute it, or whether the gift is 
 void on the ground of uncertainty, (m) 1 
 
 (m) Morice v. Bishop of Durham, 9 Ves. 399, 405 ; 10 Id. 522, 541 ; 
 Mitford v. Reynolds, 1 Ph. 185; Nash v. Morley, 5 Bea. 177; Kendall v. 
 Granger, 5 Id. 300 ; Townsend v. Cams, 3 Hare 257 ; Nightingale v. 
 Goulburn, 5 Hare 484 ; 1 Jarm. on Wills 192. 
 
 1 See Saltonstall v. Sanders, 11 Allen 446. A charity is a gift to be ap- 
 plied consistently with existing laws, for the benefit of an indefinite num- 
 ber of persons, either by bringing their minds or hearts under the influence 
 of education or religion, by relieving their bodies from disease, suffering 
 or constraint ; by assisting them to establish themselves in life, or by 
 erecting or maintaining public works, or otherwise lessening the burdens 
 of government : [Per Gray, J.,] Jackson v. Phillips, 14 Allen (Mass.) 539. 
 A gift designed to promote the public good, by the encouragement of 
 learning, science and the useful arts, without any particular reference to
 
 174 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 Parlia- 
 ment, 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,(w) directing 
 the corporation property to be applied, first, for certain 
 specified purposes, and afterwards, for other general pur- 
 poses for the benefit of the town, a trust has attached on 
 the property, giving jurisdiction in equity to control any 
 improper dealing by the corporation, (o) 
 
 It should be observed, that trusts for charitable pur- 
 poses, equally with those for individual benefit, must be of 
 a character not prohibited by the policy of the law. A 
 trust therefore to promote religion must not be directed to 
 what the law calls a superstitious use ; as, for example, 
 the maintenance of a priest to pray for the soul of the 
 donor. 1 If such a trust be created in terms which show 
 that the illegal object alone was contemplated, e. g., that 
 the only object was to obtain for the donor the benefit of 
 the prayers, the gift will be simply void. If it appears 
 that charity was the object contemplated, e.g., that it was 
 
 (n) 5 A 6 Win. 4, c. 76, s. 92. 
 
 (o) Att.-Gen. v. Mayor of Dublin, 1 Bligh. N. S. 312 ; Att.-Gen. v. Comp- 
 ton, 1 N. C. C. 417 ; Att.-Gen. v. Aspinwall, 2 M. & C. 613 ; Att.-Gen. v. 
 Corporation of Poole, 2 K. 190 ; 4 M. & C. 17 ; 8 01. & F. 409 ; Att.-Gen. 
 v. Shrewsbury, 6 Bea. 220. 
 
 the poor, is a charity: American Academy v. Harvard College, 12 Gray 
 (Mass.) 582. 
 
 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.
 
 ORDINARY AND CHARITABLE TRUSTS. 175 
 
 intended to benefit the priest or to support his chapel, the 
 illegality of the particular method will not exclude some 
 other application, but the fund will be at the disposal of 
 the Crown, to be applied *under the sign manual 
 for some lawful object. ( p) In respect also to gifts 
 for any charitable purpose, whether religious of 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.(^) 1 
 The incidents of a trust for charitable purposes are for 
 the most part the same with those of an ordinary trust. 
 The principal points of distinction are, first, that a char- 
 itable trust is not affected by lapse of time in the same 
 manner as a trust for private persons ; 2 and secondly, that 
 where an apparent charitable intention has failed, whether 
 
 (p) West v. Shuttle-worth, 2 M. & K. 684; Infra, cy pres, Application. 
 (q) 6 Geo. 3, c. 136 ; Jarm. on Wills 198. 
 
 1 See Philpott v. St. George's Hospital, 6 H. L. Cas. 338 : Hall v. War- 
 ren, 9 H. L. Cas. 420. The Statutes of Mortmain are not generally in 
 force in the United States : 2 Kent's Com. 282 ; Vidal . Girard, 2 How. 
 U. S. 187 ; Hill on Trustees 76, 710, 4th Am. ed. There are, however, 
 legislative provisions regulating charitable gifts in certain particulars. 
 
 1 No neglect or perversion of the funds of a charity, by the trustees, 
 will be permitted to affect it : Hadley v. Hopkins Acad., 14 Pick. 240 : 
 Griffitts 0. 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. 542. Nor 
 will the cestui que trust be affected by the declarations of the trustees : 
 McKissick . Pickle, 16 Penn. St. 148. But a general limitation 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 r. Grainger, 7 
 Macn. & Gord. 460.
 
 176 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 application, to the exclusion 
 of a resulting trust for the donor. 
 
 The first of these peculiarities exists in reference to the 
 rule which has been already stated, that, as between the 
 cestui que trust and an express trustee, no length of time 
 is a bar to the right; and that, on the other hand, with 
 respect to constructive trustees, or parties who have ac- 
 quired an estate with notice of a trust, the same principle 
 does not apply. In 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 trus- 
 tees 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 errone- 
 ous usage *cannot alter the original trust, yet 
 where trusts have been imposed on colleges or 
 other existing corporations, who are under no obligation 
 to accept them, traditional usage may be allowed an effect 
 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 instruments or by constant subsequent 
 usage,- the Court will not disturb it, although in its own 
 view of the original instrument, such arrangement was in 
 effect a modification of that which might now be con- 
 sidered the best construction, (s) 
 
 (r) Att.-Gen. v. Pretyman, 4 Bea. 462; Att.-Gen. v. Draper's Company, 
 6 Id. 382 ; Att.-Gen. v. Mayor of Exeter, Jac. 443 -, 2 Russ. 362. 
 
 (s) Attorney-General v. Caius College, 2 K. 150 ; Attorney-General v. 
 Draper's Company, 6 Bea. 382.
 
 ORDINARY AND CHARITABLE TRUSTS. 177 
 
 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 purchaser with 
 notice of a charitable trust, either by analogy to the Stat- 
 ute of Limitations, or as a presumptive bar by acquies- 
 cence. The precise effect of the statute does not appear 
 to have been determined. Its enactments are in terms 
 imperative, and it contains no exception in favor of charity. 
 But it seems to have been doubted by Sir Edward Sug- 
 den whether charity is not a casus omissus, and whether 
 the former rule does not continue, (t) 1 
 
 The second and most singular peculiarity is, that where 
 an apparent charitable intention has failed, whether by an 
 incomplete disposition at the outset, or by subsequent in- 
 adequacy 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 uncertainty, 
 or would result to the donor or his representative. 2 
 
 (t} 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 Dona- 
 tions v. Wybrants, 2 Jones and Latouche 182. 
 
 1 Att.-Gen. . Wilkins, 17 Bea. 285 ; but contra in the House of Lords, 
 Magdalen College v. Att.-Gen., 6 H. L. Gas. 189 ; Att.-Gen. v. Davey, 4 
 De G. & J. 136. See Att.-Gen. v. The Federal Street Meeting House, 3 
 Gray 1. 
 
 2 The cy pres doctrines of the English Chancery have not been generally 
 adopted in the United States, in their application to charitable trusts : 
 Carter v. Balfour, 18 Ala. 814; White . Fisk, 22 Conn. 31 ; McAuley . 
 Wilson, 1 Dev. Eq. 276 ; Beekman v. The People, 23 N. Y. 298 ; Wit; 
 man v. Lex, 17 S. & R. 88; see Brendle v. The German Reformed 
 Congregation, 33 Penn. St. 418; Att.-Gen. v. Jolly, 2 Strob. Eq. 379; 
 Dickson v. Montgomery, 1 Swan 348 ; Venable v. Coffman, 2 W. Va. 310. 
 
 12
 
 178 ADAMS'S DOCTRINE OF EQUITY. 
 
 F*701 *The soundness of the distinction thus drawn is 
 perhaps open to doubt ; but its existence is estab- 
 lished 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 particular way which the trust 
 denotes. Of course this doctrine, whether well or ill 
 founded, cannot apply to an ordinary trust : for there the 
 donor's object is to benefit the persons 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, 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 exhausting gift is con- 
 sidered equivalent to a gift of the whole, and will carry 
 any subsequent increase. If it appears from the instru- 
 ment of gift that the specified payments were meant as 
 fixed charges, and not by way of illustration only, and 
 
 It was, however, recognised in Baker v. Smith, 13 Metcalf 41 ; Burr's 
 Exrs. v. Smith, 7 Verm. 287 (semble) ; Urmey's Exr. v. Wooden, 1 Ohio 
 N. S. 160. See Att.-Gen. . Wallace, 7 B. Monr. 611 ; Brown v. Concord, 
 33 N. II. 285 ; Gilman v. Hamilton, 16 Illinois 225. 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 : Brightly's Purd. 145 ; Zeisweiss 
 v. James, 63 Penn. St. 465.
 
 ORDINARY AND CHARITABLE TRUSTS. 179 
 
 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, not- 
 withstanding a subsequent *deficiency of the fund. p^-. -, 
 In like manner, if it is apparent that the charity 
 was to have only a limited interest, but that the immedi- 
 ate donee was to have no benefit, the surplus or the sub- 
 sequent increase will revert to the donor or his heir.(w) 1 
 
 2. If in a gift to charity the intended object be not 
 specified at all, or not with sufficient certainty ; or if it 
 cease to exist, or to afford the means of applying the 
 entire fund, the presumed general object will be effectu- 
 ated 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 
 
 (u) Thetford School Case, 8 Rep. 130 ; Att.-Gen. v. Arnold, Show. P. C. 
 22 ; Att.-Gen. v. Mayor of Bristol, 2 J. & W. 294 ; Att.-Gen. v. Skinners 1 
 Company, 2 Russ. 407 ; Att.-Gen. . Smythies, 2 R. & M. 717 ; Att.-Gen. 
 v. Wilson, 3 M. & K. 362 ; Att.-Gen. v. Drapers' Company, 2 Bea. 508 ; 
 Att.-Gen. v. Coopers' Company, 3 Id. 29 ; Att.-Gen. v. Grocers' Company, 
 6 Id. 526 ; Jack v. Burnett, 12 Cl. &F. 812. 
 
 1 See the Mayor of Beverly v. The Att.-Gen., 6 H. L. Cas. 310; Att.- 
 Gen. v. Dean of Winsor, 8 H. L. Cas. 369.
 
 180 ADAMS'S DOCTRINE OF EQUITY. 
 
 considered it firmly established by precedent, and for that 
 reason refused to overthrow it. (v) It is, however, 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 te alter his disposition, (w] 
 
 The manner in which the cy pres application is effected, 
 is by referring it to the Master to settle a scheme, having 
 a regard to the instrument of gift. In ordinary cases 
 this is not difficult; as, for example, in one instance, 
 where a legacy was given to University College to 
 purchase advowsons, and it was found that they already 
 held as many advowsflns *as the law would permit; 
 L J and in another, where a devise was made to 
 Trinity Hall, Cambridge, for the purpose of founding 
 fellowships for the scholars of a particular school, and the 
 college alleged that fellowships of this class were contrary 
 to their statutes. In both these cases the real intention 
 of the doner was sufficiently obvious. There could be no 
 doubt in the one that he meant to increase the advowsons 
 of the college, or in the other that he meant to provide 
 endowments for the school; and accordingly the fund 
 was applied in the former case for increasing the value of 
 the existing advowsons, and in the latter it was suggested 
 by Lord Thurlow that it would be near the purpose, 
 if the college would admit the scholars as exhibitioners ; 
 or if any other college would receive them as fellows, (x) 
 
 (v) Moggridge . Thackwell, 7 Ves. 36 ; Mills v. Farmer, 19 Id. 483. 
 
 (w) Corbyn v. French, 4 Ves. 418; De Themmines v. De Boneval, 5 
 Russ. 288 ; Att.-Gen. v. Whitchurch, 3 Yes. 141 ; Cherry v. Mott, 1 M. & 
 C. 123. 
 
 (x) Att.-Gen. v. Green, 2 B. C. C. 492 ; Att.-Gen. v. Andrews, 3 Ves. 
 633.
 
 ORDINARY AND CHARITABLE TRUSTS. 181 
 
 In cases where the charity is of a compound character, 
 it is sometimes difficult to determine in what part of the 
 description its essence resides. A doubt of this kind arose 
 in a case where a gift had been made for apprenticing the 
 sons of poor 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 circum- 
 stances came to the conclusion, that the profession of 
 Presbyterianism, and not the residence in the parish was 
 in the particular instance the primary 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 analogous. 
 In this case, if other charities are mentioned in the will, 
 they may afford a clue for the guidance of the Court. 
 The application, however, must be a cy pres one to the 
 object which has failed, and not a mere transfer to the 
 other charities. The ^principle on which such 
 charities can be available as a guide, appears to be 
 that of ascertaining how much of the original object it is 
 possible to adopt, and then filling up the deficiencies from 
 the other objects. An instance of this kind occurred 
 under a bequest of property on three trusts ; 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 
 Ironmonger's 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 
 
 (y) Att.-Gen. r. Wansay, 15 Ves. 231.
 
 182 ADAMS'S DOCTRINE OF EQUITY. 
 
 be effectuated, and that the mode of effectuating it might 
 be borrowed from the second trusts; and the fund was 
 accordingly applied for the maintenance of Church of 
 England schools throughout England. (z) The difficulties, 
 however, which may occur in discovering an analogy, will 
 not obviate the necessity of doing it. If the fund is 
 clearly dedicated to charity, the Court of Chancery must 
 so apply it. And similarities of character, however re- 
 mote, 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 inde- 
 finite gift to charity or the poor, or a gift to a charity of 
 a superstitious character, which is considered in law as 
 equivalent to an indefinite gift, it seems that the disposi- 
 tion is in the Crown by sign manual, (a) 1 
 
 The jurisdiction to superintend a charitable trust is set 
 in motion by the information of the Attorney-General 
 F*741 * su ^ n S on behalf of the Crown, or, if the nature 
 of the trust is such that its non-performance has 
 inflicted personal injury on an individual, then by a com- 
 pound 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 management of 
 the property, it extends to all charities, whether corpo- 
 
 (z) Att.-Gen. v. Ironmongers' Company, 2 M. & K. 576 ; 2 Beav. 313; 
 Cr. & P. 208 ; 10 Cl. & F. 908. 
 
 (a) Moggridge v. Thackwell, 7 Ves. 36 ; Hayter v. Trego, 5 Russ. 113 ; 
 De Themmines v. De Bonneval, 5 Russ. 292 ; Att.-Gen. v. Todd, 1 K. 803 ; 
 Reeve v. Att.-Gen., 3 Hare 191. 
 
 1 See article in the American Law Register, vol. 1, N. S. pp. 385-400.
 
 ORDINARY AND CHARITABLE TRUSTS. 183 
 
 rate 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.(b) 
 
 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 cha- 
 rities as have no charter of incorporation, but are under 
 the management of private persons, or of some independ- 
 ent corporation, in whom, as trustees, their property 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 
 jurisdiction of equity is confined to the management of 
 the estate, and does not extend to the election or amotion 
 of corporators, or to the 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 decision cannot r#~--i 
 be controlled. If, however, the visitors are also 
 
 (b) Att.-Gen. v. Pargeter, 6 Bea. 150 ; Att.-Gen. r. Foord, 6 Id. 289 ; 
 Att.-Gen. v. Corporation of Newark, 1 Hare 395.
 
 184 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 ob- 
 ject sought is beyond the visitor's functions, such, for in- 
 stance, as a new apportionment of the charity revenues. (V) 
 
 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 a further 
 appeal to the House of Lords. The statute, however, 
 does not exclude the right to proceed in Chancery ; and 
 the proceeding under it has fallen into disuse, (c?) 1 
 
 There is also a statutory jurisdiction in the Court of 
 Chancery itself for remedying abuses by a summary pro- 
 cess, instead of the more regular course by information 
 and bill. This jurisdiction is created by 52 Geo. 3, c. 101, 
 commonly known as Sir Samuel Roinilly'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 administra- 
 tion, the parties seeking relief may proceed summarily 
 
 (c) Ex parte Wrangham, 2 Ves. Jun. 609 ; Re Queen's Coll. Jac. 1 ; 3 
 Steph. Bl. 183 ; Ex parte Inge, 2 R. & M. 591 ; Rex v. Archbishop of Can- 
 terbury, 15 East 117; Att.-Gen. v. Foundling Hospital, 2 Ves. Jun. 4'2 ; 
 Att.-Gen.'v. Dixie, 13 Ves. 519 ; Ex parte Kirby Ravensworth Hospital, 15 
 Ves. 305 ; Att.-Gen. . Earl of Clarendon, 17 Ves. 491 -, Ex parte Berk- 
 hamstcad 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. 
 
 (d) Att.-Gen. v. Mayor of Dublin, 1 Bl. N. S. 312, 347 ; Incorporated 
 Society v. Richards, 1 Conn. & L. 58. 
 
 1 See ante, note to page 65.
 
 ORDINARY AND CHARITABLE TRUSTS. 185 
 
 by a petition to be sanctioned by the fiat of the Attorney- 
 General. The summary jurisdiction thus conferred, if the 
 statute had been construed in its widest acceptation, would 
 have been one of a very ^extensive character, but 
 it is confined by the decisions to plain breaches of 
 trust, or to cases where no contention exists, and where 
 the trustees are merely asking the direction of the Court. 
 If any question is involved as to who are to be intrusted 
 with the estate, or who are to be entitled to the benefit of 
 it, or if the interest of any stranger may be affected, or 
 if a new application of the fund is sought, the proper 
 course is by an information, (e) 
 
 In the particular case of Grammar Schools, an addi- 
 tional jurisdiction has been conferred on the Court by 3 
 & 4 Viet. 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 inten- 
 tions of the founder. By the same act authority is given 
 to the Court to enlarge and confer powers for regulating 
 the discipline of such schools, and to appoint the mode of 
 removing masters. 
 
 A summary jurisdiction is also conferred by statute for 
 superintending and controlling the officers of Friendly So- 
 cieties ; (/) for apportioning charitable bequests between 
 new parishes and districts formed under the Church 
 
 (e) 52 Geo. 3, c. 101 ; Corporation of Ludlow v. Greenhouse, 1 Bl. N. S. 
 17; Re Clark's Charity, 8 Sim. 34; Re Phillipott's Charity, Id. 381; 
 Re West Retford, 10 Id. 101 ; Re Parke's Charity, 12 Id. 329. 
 
 (/) 10 Geo. 4, c. 56, ss. 14, 15, 16.
 
 186 ADAMS'S DOCTRINE OF EQUITY. 
 
 Building Acts and the remaining parts of the old parishes, 
 and making a like apportionment of debts or charges con- 
 tracted or charged on the credit of church rates ; ((/) and 
 for administering property which was formerly vested in 
 the municipal corporations on charitable trusts, (ti) 
 
 (g) 8 & 9 Viet. c. 70, s. 22. 
 (h) 5 & 6 Win. 4, c. 76, s. 71.
 
 OF SPECIFIC PERFORMANCE. 187 
 
 *CH AFTER II. [*77] 
 
 OF SPECIFIC PERFORMANCE ELECTION MERITORIOUS OR IM- 
 PERFECT CONSIDERATION DISCHARGE BY MATTER IN PAIS OF 
 
 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 consider- 
 ation, 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 contract 
 arises where a contract, binding at law, has been infringed, 
 and the remedy at law by damages is inadequate. 1 And 
 
 1 The character of the relief which equity affords in decreeing the 
 specific performance of a contract does not differ in kind from that which 
 is administered by the same system of jurisprudence in other cases, for 
 the relief given in equity is always specific. See Introduction, page xxxv., 
 ante. In cases of contracts the jurisdiction of equity arises in some in- 
 stances from the inability to estimate damages for the breach ; and, in 
 others, from the inadequacy of the compensation which damages afford ; 
 and the jurisdiction having once attached, the Court goes on to apply its 
 usual remedy, viz., specific relief, or causing that to be actually done which
 
 188 ADAMS'S DOCTRINE OF EQUITY. 
 
 in order to originate this equity, it is essential that the 
 contract shall have been made for valuable consideration, 
 and that its enforcement in specie be practicable and 
 necessary. 1 The validity of the contract at law is not 
 
 in good conscience ought to be done. Equity acts " specifically" in the 
 enforcement of a trust, the reformation of a written instrument, and other 
 instances, no less than in decreeing the performance of a contract; and 
 the only reason why the term "specific" seems to 'have been more fre- 
 quently applied to the last case, than to the others, is, perhaps, because in 
 the performance of contracts the relief in equity is more striking, and 
 more in contrast with the common law remedies, than in other instances. 
 
 The Act of 21 & 22 Viet. c. 27, commonly known as Sir Hugh Cairns's 
 Act, provides that the Court may either in addition to or in substitution for 
 the relief which is prayed, grant that relief which would otherwise be 
 proper to be granted by another Court that is to say, award damages. 
 On the construction of this act see Ferguson v. Wilson, L. R. 2 Eq. 77 ; 
 Soames v. Edge, Johns. 649; Norris v. Jackson, 1 Johns. & H. 319; Howe 
 0. Hunt, 31 Beav. 420. In Indiana (by statute) specific performance is 
 enforced through the common law medium of a trial by jury ; and in Penn- 
 sylvania a similar result is attained as respects land by the action of eject- 
 ment. So too in California : Weber v. Marshall, 19 Cal. 447 ; and Wis 
 consin : Fisher v. Moolick, 13 Wis. 321. 
 
 . 1 The requisites for the specific performance of contracts in equity are 
 five: First, the performance in specie must be necessary; Second, it x must 
 be practicable; Third, there must be a valuable consideration ; Fourth, 
 the terms of the contract must be certain ; and Fifth, it must be reciprocal. 
 To these rules it may be added, generally, that the allowance of this relief 
 is a matter of judicial discretion. 
 
 First. The relief must be necessary, and this necessity may result either 
 from the inadequacy of the damages afforded at common law, or from the 
 impossibility of ascertaining those damages. Of the former, instances will 
 be found in Lloyd . Loaring, 6 Vesey, Jr. 773 ; Nutbrown v. Thornton, 10 
 Id. 159; Earl of Macclesfield v. Davis, 3 Vesey & B. 16; Lowther 
 v. Lowther, 13 Vesey 95 ; Fells v. Read, 3 Id. 71 ; Pusey r. Pusey, 1 
 Vern. 273'; Duke oLSomerset . Cookson, 3 P. Wms. 389 ; Brown v. Gilli- 
 land, 3 Dessaus. 541 ; Phyfe v. Wardell, 2 Ed. Ch. 51 ; Bowman v. Irons, 2 
 Bibb 78 ; Falcke v. Gray, 5 Jur. N. S. 645 ; 4 Drew 651 ; Hill v. Rocking- 
 ham Bank, 44 N. Hamp. 567. Of the latter, the following cases will 
 furnish examples : Sullivan v. Tuck, 1 Md. Ch. 59 ; Waters v. Howard, 
 Id. 112; Finley v. Aiken, 1 Grant Cas. 83. When some of the articles 
 are capable of compensation in damages, and some are not, equity will
 
 OF SPECIFIC PERFORMANCE. 189 
 
 material to be here considered. And our attention will 
 therefore be directed to those requisites alone which, as- 
 
 enforce performance as to the whole : McGowin v. Remington, 12 Penn. 
 St. 56. As a general rule, specific performance of contracts relating to 
 personal property will not be enforced : Cowles v. Whitman, 10 Conn. 121 ; 
 Hoy v. Hansborough, 1 Free. Ch. 533 ; Cuddie v. Rutter, 1 Lead. Cas. Eq. 
 640. Though the rule is otherwise when the chattel has not merely a 
 market value, but also a pretium affectionia: Pueey v. Pusey, 1 Lead. Cas. 
 Eq. ,54 ; Duke of Somerset v. Cookson, Id. 655. The fact that in an 
 agreement to convey land, a penalty for non-compliance with the contract 
 has been inserted expressly as " liquidated damages," does not deprive the 
 party injured of his right to a specific performance : Hull v. Sturdivant, 
 46 Maine 34; Hooker v. Pynchon, 8 Gray 550 ; Moorer . Kopmann, 11 
 Rich. Eq. 225 ; Daily v. Litchfield, 10 Mich. 38. See Dowling v. Betje- 
 mann, 2 Johns. & H. 544 ; Gillis v. Hall, 2 Brewster (Pa.) 342. 
 
 Second. The specific enforcement of the contract must be practicable : 
 Tobey r. The County of Bristol, 3 Story 800 ; Blackett v. Bates. 12 Jur. 
 X. S. 151; also Phillips v. Stauch, 20 Mich. 369; Burke v. Seeley, 
 40 Mo. 334. For instance, a contract to convey land will not be specifi- 
 cally enforced against a vendor who has no title : Fitzpatrick v. Feather- 
 stone, 3 Ala. 40. Mere pecuniary inability, however, is no defence : Hopper 
 v. Hopper, 1 Green (X. J.) 147 ; see also Love v. Cobb, 63 N. C. 324. 
 And an agreement to devise lands will not be specifically enforced : Staf- 
 ford v. Bartholomew, 2 Carter 153 ; though see Maddox v. Rowe, 23 Geo. 
 431 ; Mundorf r. Kilbourne, 4 Md. 463 ; Whitridge v. Parkhurst, 20 
 Id. 62; Johnson v. Habbell, 2 Stockton, 332; Logan v. McGinnis, 12 
 Penn. St. 27. A specific performance by husband and wife of a contract 
 for the sale of the wife's land will not be decreed on a bill filed by the 
 vendee; Clarke r. Reins, 12 Gratt. 98; though in Massachusetts a wife 
 may, by statute, make a binding contract for the sale of her lands ; Baker 
 v. Hathaway, 5 Allen 103. Under this head, too, fall the instances men- 
 tioned infra, p. 81, where the specific performance of a contract will not 
 be decreed when the property affected by it has become vested, by descent 
 or devise, in infants and persons from other reasons incapable of executing 
 a conveyance. In most of the United States, however, there are statutes 
 providing for the execution of decedents' contracts. 
 
 Third. The agreement must be supported by a valuable consideration. 
 See infra, p. 78 note. 
 
 Fourth. The terms of the contract must be explicit and certain : Dodd v. 
 Seymour, 2 Conn. 473 ; Rockwell v. Lawrence, 2 Halstead Ch. 190; Mc- 
 Kibbin v. Brown, 1 McCart. 13,- Aday v. Echols, 18 Ala. 353 ; Soles v. 
 Hickman, 20 Penn. St. 180 ; Allen v. Burke, 2 Md. Ch. 534 ; Canton
 
 190 ADAMS'S DOCTRINE OF EQUITY. 
 
 suming the fact of its legal validity, are essential to the 
 equity for specific enforcement, 
 
 Co, v. The Railroad Co., 21 Md. 395 -, Maderia v. Hopkins, 12 B. Monr. 
 595 .; Parrish v. Koons, 1 Pars. Eq. 97 ; Robinson v. Ketlletas, 4 Edw. Ch. 
 67-, Price V. Griffith, 1 De G., M. & G. 80 ; Hammer v. McEldowney, 46 
 Pnn. St. 334 ; Taylor . Portington, 7 De G., M. & G. 328 ; Parker v. 
 Taswell, 2 De G. & J. 571 ; Buckmaster v. Thompson, 36 N. Y. 558 , 
 Waring v, Ayres, 40 Id. 357 ; Jordan v. Deaton, 23 Ark. 704 ; Potts v. 
 Whitehead, 20 N. J. Eq. 55 ; Lobdell v. Lobdell, 36 N. Y. 327 ; Brewer v. 
 Wilson, 2 Green (N. J.) 180; Mehl t?. Von Derwulbeke, 2 Lans. (N. Y.) 
 
 267 ; Foot v. Webb, 59 Barb. (N. Y.) 38 ; Munsell v. Loree, 21 Mich. 491. 
 When the price to be paid was to be fixed by two persons, and a third 
 (their nominee), and they could not agree, the court refused specific per- 
 formance : Milnes v. Gery, 14 Vesey 400-407 ; Darbey v. Whitaker, 4 
 Drew. 134 ; Dike v. Greene, 4 R. I. 285. And the same rule applies to 
 other stipulations, besides those in regard to the price: Tillett v. The 
 Charing Cross Bridge Co., 26 Beav. 419. Though see Gregory v. Mighell, 
 18 Vesey 328. An agreement to sell at a fair valuation may be enforced : 
 Milnes v. Gery, supra 5 Van Doren v. Robinson, 1 Green (N. J.) 256. 
 Though an agreement is uncertain when first entered into, its terms may 
 be settled by user: Laird v. The Birkenhead Railway Co., John. 501; 
 Powell v. Thomas, 6 Hare 300. See, in this connection, Price v. Salusbury, 
 32 Beav. 446. 
 
 Fifth. The agreement must be mutual. See post 82, note 1. It may 
 be added, lastly, that the specific performance of a contract is a kind of 
 relief which rests in judicial discretion, that is a discretion not vacillating 
 or arbitrary, but one which is governed by sound and fixed rules, and 
 which is only exercised within certain defined limits. It is a discretion 
 which is to a considerable extent controlled by the circumstances of the 
 individual case : 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. Ch. 
 222 -, King v. Morford, Saxton 274 ; Anthony v. Leftwich, 3 Rand. 238 ; 
 Praters Miller, 3 Hawks. 629 ; Turner v. Clay, 3 Bibb 52 ; Frisby v. Bal- 
 lance, 4 Scam. 287 ; McMurtrie v. Bennette, Harring. Ch. 124; Dougherty 
 v. Huinston, 2 Blackf. 273; St. John v. Benedict, 6 John. Ch. Ill ; Hen- 
 derson 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. 
 The County of Bristol, 3 Story 800 ; Dalzell . Crawford, 1 Parsons 45 ; 
 Waters v. Howard, 8 Gill 262; Tyson v. Watts, 1 Md. Ch. 13; Bennett 
 v. Smith, 16 Jurist 421 ; 10 Eng. L. & Eq. 272 ; Fish v. Lightner, 44 Mo. 
 
 268 ; but a discretion, nevertheless, which conforms itself to general rules
 
 OF SPECIFIC PERFORMANCE. 191 
 
 *The first requisite is that there be a valuable 
 consideration, either in the way of benefit be- L - 
 stowed, or of disadvantage sustained, by the party in 
 whose favor a contract is to be enforced, (a) 1 Theneces- 
 
 (a) 2 Steph. Bl. 113. 
 
 and settled principles : Ash v. Daggy, 6 Ind. 259 ; Powell v. Central Plank 
 Co., 24 Ala. 441 ; Stoutenburgh v. Tompkins, 1 Stockt. 332; Chubb v. 
 Peckham, 2 Beas. 207 ; Haywood v. Cope, 25 Beav. 140. In the exercise 
 of this discretion, if the complainant has been guilty of laches : Parrish v. 
 Koons, 1 Pars. Eq. 97 ; Ins. Co. v. Union Canal Co. Bright. N. P. 48 ; 
 Miller v. Henlan, 51 Penn. St. 265 ; or has failed to perform his own part 
 of the contract : Roy v. Willink, 4 Sand. Ch. 525 ; Slaughter v. Harris, 1 
 Carter 238 ; Eastman v. Plumer, 46 N. H. 464 ; specific performance will- 
 be refused. 
 
 1 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 con- 
 sideration, or at least by what a Court of equity considers a meritorious 
 consideration, as payment of debts, or making provision for a wife and 
 child : Minturn . Seymour, 4 John. Ch. 500 ; Woodcock p. Bennett, 1 
 Cowen 733 ; Cabeen v. Gordon, ] Hill Ch. 51 ; Shepherd v. Shepherd, 2 
 Md. Ch. 144 ; Yasser v. Yasser, 23 Miss. 378 ; Crompton v. Yasser, 19 Ala. 
 259 ; Clarke r. Lott, 1 1 111. 105 ; Banks . May, 3 A. K. Marsh. 436 ; Butman r. 
 Porter, 100 Mass. 337 ; Tarbell v. Tarbell, 10 Allen 278 ; Walrond v. Wal- 
 rond, Johns. 18 ; Allen v. Davison, 16 Ind. 416 5 Short v. Price, 17 Tex. 
 397-403 ; Lear v. Chouteau, 23 111. 39 ; Harkness v. Remington, 7 R. I. 
 134. Where the holder of shares of railway 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 mutuality, but a bill may be sustained against the latter 
 to compel him to take the stock : Cheale r. Kenward, 3 De G. & J. 27. A 
 contract to borrow a sum of money will not be specifically enforced : 
 Rogers v. Challis, 27 Bear. 175 ; nor a contract to lend : Sichel v. Mosen- 
 thal, 30 Beav. 371-377. Natural love and affection has been held to be a 
 good consideration in equity, in Taylor v. James, 4 Dessaus. 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 Pennsylvania, the opposite 
 doctrine has been held : Kennedy . Ware, 1 Penn. St. 445 ; Campbell's 
 Est., 7 Id. 100 , and see Morris v. Lewis, 33 Ala. 353 ; and this is unques- 
 tionably the result of the English cases. As to assignments for the benefit 
 of creditors, see ante 31, and note ; Hill on Trustees, 4th Am. ed. 507 in 
 note ; Burrill on Assignments 280, 306 ; notes to Thomas . Jenks, 1 Am. 
 Lead. Cas. 80 ; and see Hickman v. Grimes, 1 A. K. Marsh. 87.
 
 192 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 specialty, 
 the solemnity of a deed is held at law to imply a consi- 
 deration. In equity, however, where a special remedy is 
 sought in addition to the ordinary one of pecuniary re- 
 compense, a valuable consideration is always requisite, 
 and no additional force is given to the agreement, because 
 it is evidenced by an instrument under seal. If there be 
 no consideration, or if the only consideration be a moral 
 duty or natural affection, which are termed good, but not 
 valuable considerations, the Court of Chancery will not 
 interfere ; e. g^ if a man contract after marriage, in con- 
 sideration of duty or affection towards his wife and child- 
 ren, (b) If, on the other hand, the contract be made 
 before marriage, it will be supported, in consideration of 
 the subsequent marriage, and may be enforced on the ap- 
 plication of any person claiming within that consideration. 1 
 It will not, however, be enforced on the application of a 
 party not within the consideration, to whom a collateral 
 interest has been voluntarily given, although, if enforced 
 at all, it will be enforced throughout, (c) The pecu- 
 liar 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 performance is asked, 
 
 (6) Jefferys v. Jefferys, Cr. & P. 141 ; [Moore v. Crofton, 3 Jones & Lat. 
 442.] 
 
 (c) 3 Sug. Vr& P. 289; Davenport v. Bishopp, 2 N. C. C. 451; 1 Ph. 
 698. 
 
 1 Neale v. Neales, 9 Wall. 1.
 
 OF SPECIFIC PERFORMANCE. 193 
 
 there must be a valuable consideration to support the 
 equity. A distinction, however, must be noted between 
 value and adequacy. It is essential that the consideration 
 be valuable, but it is not essential *that it be also r^^-q-i 
 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, (of) 1 
 
 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 annexed 
 to the gift, is compellable in equity to do the act.(e) And 
 in like manner it is a principle of the common law, that 
 
 (d) I Sug. V. & P. 440 ; Borell v. Dann, 2 Hare 440, 450 ; Bower . 
 Cooper, Id. 408. 
 
 (e) Edwards p. Grand Junction Railway, 1 M. & C. 650 ; Green . Green, 
 19 Yes. 665 5 2 Merv. 86 ; Gretton v. Haward, 1 Sw. 409, 427. 
 
 1 Mere inadequacy of price is not per se sufficient to set aside a transac- 
 tion : Park v. Johnson, 4 Allen 259 ; yet where it is so great as to give to 
 the contract the character 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 compensation in damages at law : Osgood et al. v. Frank- 
 lin et al., 2 John. Ch. 23, s. c. on appeal, 14 John. 527 ; Howard v. 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 . Hale, 5 Foster 145; 
 and so as to personalty: Falcke v. Gray, 4 Drew. 651. See also Seymour 
 0. Delancy, 3 Cowen 445 ; 6 John. Ch. 222 ; Garnett . Macon, 2 Brock. 
 185; Rodman v. Zilley, Saxton 320; White . Thompson, 1 Dev. & Bat. 
 Ch. 493 ; Fripp v. Fripp, Rice Ch. 84 ; Bean . Valle, 2 Mo. 126 ; David- 
 son 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 Dessaus. 687 ; Wright v. Wilson, 2 
 Yerg. 294 ; Barnett v. Spratt, 4 Ired. Eq. 171 ; Deaderick r. Watkins, 8 
 Humph. 520 : see, however, Erwin v. Parham, 12 How. U. S. 197. 
 13
 
 194 ADAMS'S DOCTRINE OF EQUITY. 
 
 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} 
 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 con- 
 tended, 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 sufficiently far to 
 constitute himself a trustee for the claimant. The exact 
 line of demarcation, where the contract ceases to be an 
 executory agreement, and becomes a 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 instrument of gift has been fully 
 r*8(Tl execu ^ e( ^j ^although retained in the donor's posses- 
 sion;^) 1 where the legal ownership of a right en- 
 
 (/) 2 Steph. Bl. 186. 
 
 (g] Coningham v. Plunkett, 2 N. C. C. 245 ; Hughes v. Stubbs, 1 Hare 
 476 ; Exton v. Scott, 6 Sim. 31 ; Fletcher v. Fletcher, 4 Hare 67. 
 
 1 Equity will aid in enforcing an agreement executed, though voluntary, 
 dliter if it be executory : Head v. Long, 4 Yerg. 68 ; Wyche v. Green, 16 
 Geo. 49 ; Morris v. Lewis, 33 Ala. 53. But, in Boze v. Davis, 14 Texas 
 331, it was held that equity will not enforce a voluntary agreement to 
 convey land, although the grantee was put in possession and made im- 
 provements ; but, if the bill is properly drawn, he may obtain compensa- 
 tion for the labor he expended and the improvements he made : Pinckard 
 v. Pinckard, 23 Ala. 649, ace. 
 
 * Way's Settlement, 10 Jur. N. S. 1166.
 
 OF SPECIFIC PERFORMANCE. 195 
 
 forceable at law has been completely vested in a trustee 
 for the claimant ;(/z) 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 him;(z) where a chose in action which is 
 transferable in equity alone, has been transferred by a 
 complete equitable assignment ; () or where, by a formal 
 declaration of trust, which purports to be and is a com- 
 plete transaction, the donor has assumed the character of 
 a trustee. (1} 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 liablity, 
 without first inquiring into the origin of the claim, and 
 the nature of the consideration given, (m) 1 
 
 (h) Fletcher v. Fletcher, 4 Hare 67. 
 
 (i) Collinson v. Pattrick. 2 K. 123 ; Sloan v. Codogan, 3 Sug. V. & P. 
 App. 66 ; Beatson v. Beatson, 12 Sim. 281, 
 
 (k) Ex parte Pye & Dubois, 18 Ves. 140 ; McFadden v. Jenkyns, 1 Hare 
 458 ; 1 Ph. 153 ; Fortescue v. Barnett, 3 M. & K. 36 ; Edwards v. Jones, 1 
 M. & C. 226. 
 
 (1) Meek v. Kettlewell, 1 Hare 464 ; 1 Ph. 342. 
 
 (m) Edwards v. Jones, 1 M. & G. 226 ; Dillon v. Coppin, 4 Id. 647 ; 
 Meek v. Kettlewell, 1 Hare 464; 1 Ph. 342; Fletcher v. Fletcher, 4 Hare 
 07 : Ward v. Audland, 8 Bea. 201. 
 
 1 By the recent case of Kekewich v. Manning, 1 De G., M. & Gord. 176, 
 it is now established in England, contrary to several previous decisions, 
 that a voluntary assignment of an equitable or reversionary interest, 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 immaterial : s. P. Voyle v. 
 Hughes, 18 Jur. 341 ; 2 Sm. & Giffard 18. But the rule still remains the 
 same where the assignor has not done all in his power, and which the na- 
 ture of the property is capable of, as a transfer of stock, where it is assigned : 
 Beech v. Keep, 18 Bea. 285 ; Bridge v. Bridge, 16 Id. 315 ; Hill v. The 
 Buckingham Bank, 44 N. H. 567 ; see Milroy v. Lord, 8 Jur. N. S. 806 ; 
 and the classification of the cases on this subject in Hill on Trustees 139, 
 142, notes, 4th Am. ed.
 
 196 ADAMS'S DOCTRINE OF EQUITY. 
 
 The second requisite is, that the mutual enforcement of 
 the contract in specie 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 ;(w) where he holds 
 r#o-| -i it as a ^trustee without authority to sell ; (0) 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, after 
 a contract has been made, the property which it affects 
 descends or is devised to persons, who by reason of infancy 
 or of the limited nature of their estate, are unable to make 
 the requisite conveyance. 1 The effect of an incapacity of 
 
 (n) Maiden . Fyson, 9 Bea. 347. 
 (o) Mortlock v. Buller, 10 Ves. 292. 
 
 (p) Todd v. Gee, 17 Ves, 273 ; Jenkins v. Parkinson, 2 M. & K. 5 ; Sains- 
 bury 0. Jones, 2 Bea. 462 ; Nelson v. Bridges, Id. 239. 
 
 1 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 Dessaus. 109 ; Wilkinson v. Wilkinson, a minor, 
 1 Id. 201. The subject-matter must, however, have been fixed : Ferris v. 
 Irving, 28 Cal. 645. Where specific performance of a contract would be
 
 OF SPECIFIC PERFORMANCE. 197 
 
 this kind is not to oust the jurisdiction of equity, but to 
 delay its exercise until the requisite 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 specific performance, the Court 
 may direct a conveyance in the same manner as in the 
 case of an incapacitated trustee, (q) A corresponding 
 authority is given by another statute, where a contract- 
 ing 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 
 of equity is equally at an end. Such, for example, is 
 the case where a tradesman has contracted to sell the 
 goodwill of a business, unconnected with any specific pro- 
 perty, or where an actor has engaged to perform at a par- 
 ticular theatre ; l for the Court is incompetent to tell the 
 
 (2) 1 Wm. 4, c. 60, as. 16 & 17. (r) 1 Win. 4, c. 65, g. 27. 
 
 decreed between the original parties to a contract, it will be decreed be- 
 tween all claiming under them, if there are no intervening equities con- 
 trolling the case: Hays . Hall, 4 Porter 374 ; McMorris v. Crawford, 15 
 Ala. 271 ; Brewer c. Brewer, 19 Id. 481 ; Nesbit . Moore, 9 B. Monr. 
 508 ; Tiernan . Roland, 15 Penn. St. 429 5 Guard v. Bradley, 7 Ind. 600 ; 
 Hill v. Ressegieu, 17 Barb. (N. Y.) 162; Moore v. Burrows, 34 Id. 173; 
 Hunter v. Bales, 24 Ind. 299 ; Laverty . Moore, 33 N. Y. 658 ; see Van 
 Doren v. Robinson, 1 Green (N. J.) 256. 
 
 1 Hamblin v. Dinneford, 2 Edw. Ch. 529. A court will sometimes re- 
 strain the infringement of negative covenants though it cannot specifically 
 enforce the whole contract : see Lumley v. Wagner, 1 De G., M. & G. 604 ; 
 De Mattos v. Gibson, 4 De G. & J. 276 ; also Peto v. The Railroad Co., 1 
 Hem. & M. 468 ; post 207 note. A contract for personal services of an 
 uncertain duration will not be enforced : Firth v. Ridley, 33 Bea. 516, ap- 
 proved by the Lord Justices June 30, 1864 ; or a contract for the perform- 
 ance of a continuous series of duties, the non-performance of which can 
 only be punished by repeated attachments : Blackett v. Bates, L. R. 1 Ch. 
 App. 117 ; though see Furman r. Clark, 3 Stockt. 306. The court will not
 
 198 ADAMS'S DOCTRINE OF EQUITY. 
 
 actor what parts he shall perform, or how he shall perform 
 them ; or to tell the tradesman how he shall induce his 
 f*821 cus t mers to employ his *asignees. (s) Such again 
 is a contract for entering into a partnership, where 
 no term is fixed for its duration, and where the decree 
 might therefore be nullified by an immediate dissolution; 
 or for granting a lease, where the term contracted for 
 has expired before the hearing of the cause. It seems, 
 however, that if special cause be shown, the Court may 
 insist on such a lease being executed ; and dated as of 
 the time when it ought to have been made, and may com- 
 pel the lessor to admit such date as the true one in any 
 proceeding at law.(tf) 
 
 If, when the cause comes on for hearing, the plaintiff'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. 1 And such want of mu- 
 
 (s) Coslake v. Till, 1 Russ. 376 ; Kemble v. Kean, 6 Sim. 333 ; Diet- 
 richsen v. Cabburn, 2 Ph. 52 ; [Fitzpatrick v. Nowlan, 1 Irish L. & Eq. N. 
 S. 671.] 
 
 (t) Hercy v. Birch, 9 Ves. 357 ; Nesbitt v. Meyer, 1 Sw. 223. 
 
 specifically enforce a contract to run a railroad : Port Clinton R. R. Co. v. 
 The Cleveland & Toledo R. R. Co., 13 Ohio N. S. 544. Specific performance 
 of a contract to build a railroad will not be decreed. Such a work require8 
 too long a time for its performance to be conducted under orders and de- 
 crees of chancery : Ross v. Union Pacific R. R., 1 Woolw. 26 ; Fallen v, R. 
 R. Co., 1 Dill. 121. 
 
 1 The contractor agreement sought to be enforced, must be mutual, and 
 the tie reciprocal, or a Court of Equity will not enforce a performance : 
 McMurtrie v. Bennett, Harring. Ch. 124 ; Hawley v. Sheldon, Id. 420 ; 
 Hutcheson v. McNutt, 1 Ham. 14 ; Cabeen v. Gordon, 1 Hill Ch. 51 ; 
 Benedicts. Lynch, 1 John. Ch. 370 5 Ohio v. Banm, 6 Ham 383; Tyson 
 v. Watts, 1 Md. Ch. 13; Bronson v. Cahill, 4 McLean 19; Southern Life 
 Ins. Co. v. Cole, 4 Florida 359 ; Duvall v. Myers, 2 Md. Ch. 401 ; Stout- 
 enbergh v. Tompkins, 1 Stock. 332; Hoen v. Simmons, 1 Cal. 119; Cor- 
 son v. Mulvany, 49 Penn. St. 88 ; Hawralty v. Warren, 3 Green (N. J.)
 
 OF SPECIFIC PERFORMANCE. 199 
 
 tuality, though it may not in all cases absolutely exclude 
 the jurisdiction, is a material ingredient in restraining its 
 exercise. For example, where an agreement had been 
 made between the plaintiff and the defendant, that the 
 plaintiff should supply certain acids for the defendant, and 
 that the defendant should purchase them from the plain- 
 tiff alone, the Court refused to restrain the defendant 
 from purchasing elsewhere, because it could not compel 
 the plaintiff to furnish all the acids which might be re- 
 quired. 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 impossible to compel him to execute 
 that decree, (w) 
 
 The third requisite is, that an enforcement in specie be 
 necessary, '. e. 9 it must be really important to the plain- 
 tiff, and not oppressive on the defendant. 
 
 *It must be really important to the plaintiff; for 
 the equitable remedy is not concurrent with the 
 legal one, but supplemental to it, and will not there- 
 
 () Hill v. Crolls, 2 Ph. 60 ; Fight v. Bolland, 4 Russ. 298 ; Bozon v. 
 Farlow, 1 Meriv. 469 ; Pickering v. Bishop of Ely, 2 N. C. C. 249 ; Salis- 
 bnry v. Hatcher, 2 X. C. C. 54 ; Dietrichsen v. Cabburn, 2 Ph. 52 ; Rolfe 
 t. Rolfe, 15 Sim. 88 ; [Hargrave v. Hargrave, 12 Beav. 408.] 
 
 Eq. 124; Jones P. Noble, 3 Bush (Ky.)694; Marble Co. v. Ripley, 10 
 Wall. 339. 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 c. Glading, 21 Penn. St. 
 54 : see, however, Roberts v. Donny, 3 De G., M. & G. 284. As to the 
 necessity of performance and diligence on the part of the complainant: 
 see Thorp v. Pettit, 1 Gr. (X. J.) 448 ; Ely v. McKay, 12 Allen (Mass.) 
 Gentry c. Rogers, 40 Ala. 442: Gale v. Archer, 42 Barb. (X. Y.)320. 
 A tender of performance need not be made when it would be wholly 
 nugatory : Kerr r. Purdy, 50 Barb. (N. Y.) 24.
 
 200 ADAMS'S DOCTRINE OF EQUITY. 
 
 fore be substituted for such legal remedy, unless a par- 
 ticular necessity be shown. 1 In accordance with this 
 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 specific 
 injurious acts, and generally for any purpose, where the 
 specific thing or act contracted for, and not mere pecuni- 
 ary compensation, is the redress practically required. (V) 2 
 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 plaintiff may buy 
 other stock or goods of the same description. (^) 3 On the 
 same principle, a covenant to repair a house, or to put 
 lands into a particular state of cultivation, will not be en- 
 forced in equity ; for the matter really in controversy is 
 nothing more than the cost of employing some other per- 
 
 (v) 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 . Dixon, 1 S. & S. 610. 
 
 (y) Cud v. Rutter, 1 P. W. 570 ; Doloret . Rothschild, 1 S. & S. 590 ; 
 Adderley v. Dixon, 1 S. & S. 610. 
 
 1 Mead v. Camfield, 3 Stockt. 38. 
 
 2 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 v. Ber- 
 ger, 8 Barb. S. C. 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; Car- 
 penter v.'Mutual Safety Ins. Co., 4 Sandf. Ch. 408 ; see Neville v. Mer- 
 chants' 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. 
 
 3 Maulden v. Armistead, 18 Ala. 500 ; and see ante, p. 77, note. It is 
 not by itself a sufficient ground of demurrer, that a bill seeks specific per- 
 formance of a contract with regard to personal property : Carpenter w. 
 Mutual Safety Ins. Co., 4 Sandf. Ch. 408. See Cheales v. Kenward, 3 De 
 G. & J. 27 ; stated ante, note to p. 80.
 
 OF SPECIFIC PERFORMANCE. 201 
 
 son to do the work. In the case of a contract for build- 
 ing a house, and not for repairing only, the application of 
 the principle is doubtful; but if the building be one which 
 the defendant only can erect, and the non-erection of 
 which cannot be compensated by money, the jurisdiction 
 is clear, and the Court will see that the work is properly 
 done. (2) * 
 
 It must not be oppressive on the defendant. If its 
 importance to the plaintiff be shown, a material step is 
 gained towards obtaining a decree. But the establishment 
 of this fact is not conclusive ; for however important 
 specific performance may be to the plaintiff, yet he has at 
 all events another remedy by damages at law ; and it is 
 therefore open to the defendant to contend that a wrong 
 *would be inflicted on him by going beyond the 
 ordinary remedy, greater than would be inflicted 
 on the plaintiff by refusing to interpose. () 2 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 con- 
 
 (z) Errington v. Aynesly, 2 B. C. C. 342 ; Flint v. Brandon, 8 Ves. 164 ; 
 Storer v. Great Western Railway, 2 N. C. C. 48. [See Birchettr. Boiling, 
 5 Munf. 442.] 
 
 (a) Wedgwood v. Adams, 6 Bea. 600. 
 
 1 But an agreement to build a house of a given value, and according to 
 a plan to be agreed upon, cannot be specifically enforced, when 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 ac- 
 count of the timber upon it ; equity acting in such case merely on the 
 ground of the subject being land : Kitchon v. Herring, 7 Ired. Eq. 190. In 
 the recent case of Clayton . Illingsworth, 10 Hare 451, however, specifie 
 performance of an agreement for a mere tenancy from year to year, was 
 refused, because the breach was susceptible of compensation by damages. 
 
 2 Webb v. Direc. London & Portsmouth R. R. Co., 1 De G., M. & Gord. 
 52 ; Bowles v. Woodson, 6 Gratt, (Va.) 78.
 
 202 'ADAMS'S DOCTRINE OF EQUITY. 
 
 tract ;(b) if he has induced the defendant to execute a 
 written agreement, on the faith of his verbal promise that 
 it shall be subsequently altered ;(<?) or if after making a 
 contract in writing, he has put an end to it by parol waiver, 1 
 although it is doubtful whether such a waiver would be 
 good at law in respect of a contract affected by the Statute 
 of Frauds, (d) 2 
 
 (b) Cadman v. Homer, 18 Ves. 10 ; Clermont v. Tasburgh, 1 J. & W. 
 112; Brealey v. Collins, You. 317 ; 1 Sug. V. & P. 338 ; Nelthorpev. Hoi- 
 gate, 1 Coll. 203. 
 
 (c) Clarke v. Grant, 14 Ves. 519; Omerod v. Hardman, 5 Id. 722; 
 Att.-Gen. v. Jackson, 5 Hare 366. 
 
 (d) Goss v. Lord Nugent, 5 B. & Ad. 58 ; Robinson v. Page, 3 Russ. 114, 
 119 ; 1 Sug. V. & P. ciii, s. 9. 
 
 1 Huffman v. Hummer, 3 Green (N. J.) 83 ; Ryno v. Darby, '20 N. J. 
 Eq. 231. 
 
 2 Where a contract is hard, and destitute of all equity, the court will 
 leave the parties to their remedy at law ; and if such remedy has been lost 
 by negligence, they must abide the consequences : King v, Hamilton, 4 
 Pet. 311 ; Western Railroad Corporation v. Babcock, 6 Met. 346 ; Perkins 
 v. Wright, 3 Har. & McHen. 324 ; Leigh v. Crump, 1 Ired. eh. 299 ; Hall 
 v. Ross, 3 Hey w. 200 ; Rice v. Rawlings, Meigs 496 ; Eastland v. Yanarsdel, 
 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 contract of which he seeks the specific 
 performance, his bill will be dismissed, and he will be left to his legal 
 remedy : Thompson v. Tod, Pet. C. C. 380 ; Frisby v. Ballance, 4 Scam. 
 287 ; Berry v. Cox, 8 Gill 466. So where the contract is unreasonable : 
 McWhorter p. McMahan, 1 Clarke 400. And where it is entered into for 
 the purpose of defrauding a creditor : St. John v. Benedict, 6 John. Ch. 
 111. Or was not originally honest and fair : Carberry v. Tennehill, 1 Har. 
 & J. 224-, Harris v. Smith, 2 Cold. (Tenn.) 306 ; Cuff v. Borland, 55 Barb. 
 (N. Y.)481 ; McClellan . Darrah, 50 111. 249; Wells v. Millett, 23 Wis. 
 64. But a mere increase of the value of the land subsequent to the con- 
 tract, will not be a ground for refusing specific performance : Young v. 
 Wright, 4 Wis. 144. The intoxication of a purchaser at the time of sale, 
 will not be ground for refusing to enforce specific performance of the con- 
 tract against him, unless it appear that his intoxication was produced or 
 procured by the vendor, or that undue advantage was taken of it : Maxwell
 
 OF SPECIFIC PERFORMANCE. 203 
 
 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; 1 so that its validity may be sifted 
 in a way which would not be possible on a mere abstract, 
 authenticated as the vendor thinks proper, and that, in 
 consideration of the relief sought beyond the law, he may 
 have an assurance about the nature of his title, such as 
 he cannot have elsewhere, (e) If the investigation shows 
 a reasonably clear and marketable title, specific perform- 
 ance 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 purchaser's ac- 
 ceptance, but will leave the parties to law.(/) 2 
 
 (e) Jenkins v. Hiles, 6 Ves. 646, 653. 
 
 (f) Stapylton v. Scott, 16 Ves. 272; Jervoise v. Duke of Northumber- 
 land, 1J. & W. 539, 549. 
 
 v. Pittenger, 2 Green Ch. 156 ; Kodman v. Zilley, Saxton320 ; Whitesides 
 v. Greenlee, 2 Dev. Ch. 152; Shaw v. Thackray, 17 Jur. 1045 ; 1 Sm. & 
 Giff. 537 ; Morrison v. McLeod, 2 Dev. & Batt, Eq. 221 ; Harbison v. Le- 
 mon, 3 Blackf. 51 ; Belcher v. Belcher, 10 Yerg. 121 ; Crane v. Conklin, 
 Saxt. Ch. 346 ; Galloway v. Witherspoon, 5 Ired. Eq. 128 ; contra, Prentice 
 v. Achorn, 2 Paige 30. 
 
 1 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 : Dominick v. Michael, 
 4 Sandf. S. C. 374. 
 
 2 Butler u. O'Hear, 1 Dessaus. 382; Longworth v. Taylor,! McLean 
 395 ; Watts v. Waddle, 6 Pet. 389 ; Bates v. Delavan, 5 Paige Ch. 299 ; 
 Winne v. Reynolds, 6 Id. 407 ; Dutch Church . Mott, 7 Id. 77 ; Gans v. 
 Renshaw, 2 Barr 34 ; Fitzpatrick v. Featherstone, 3 Ala. 40 ; Beckwith . 
 Kouns, 6 B. Monr. 222 ; Hepburn v. Auld r 5 Cranch 262, 275 ; Owings . 
 Baldwin, 8 Gill 337 ; Thompson 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; Lowry v. Muldrow, 8 Id. 241; Chambers v. Tulane, 1 Stockt. 
 (N. J.) 146 ; Freetly v. Barnhart, 51 Penn. St. 279 ; Speakman v. Fore- 
 paugh, 44 Id. 363 ; Doebler s Appeal, 64 Id. 9 ; Littlefield v. TinsJey, 26
 
 204 ADAMS'S DOCTRINE OF EQUITY. 
 
 Specific performance may be refused where the defend- 
 ant has by mistake, not originating in mere carelessness, 
 
 Tex. 353 ; Griffin v. Cunningham, 19 Gratt. (Va.) 571 ; Swain v. Fidelity 
 Ins. Co., 54 Penn. St. 455 ; Linkhouse v. Cooper, 2 "W. Va. 67. For a dis- 
 cussion of doubtful title, see Mullings v. Trinder, 10 Eq. Cas. L. R. 449. 
 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 difficulty. 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 suf- 
 ficient : Dalzell . Crawford, 1 Pars. Eq. 57. A purchaser will not be 
 compelled to accept a title depending upon an illegal sale, while it remains 
 open to revision at the discretion of a court of law : Young v. Rathbone, 1 
 Green (N. J.) 224. 
 
 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 perform- 
 ance, 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 coun- 
 sel alone, are not sufficient ground to refuse a decree for specific perform- 
 ance of a contract for the purchase of land : Id. 37. 
 
 Perhaps the law was stated in Dalzell . 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 examination 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 in- 
 cludes also a title which, although the court has a favorable opinion of it, 
 yet may reasonably and fairly be questioned, in the opinion of other com- 
 petent 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 question 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
 
 OF SPECIFIC PERFORMANCE. 205 
 
 *entered into a contract framed differently from his rH . 8 _-. 
 own intention; notwithstanding that there is no 
 
 purchaser is entitled to require a marketable title, and it is only an in- 
 dubitable title that is a marketable one : Swayne v. Lyon, 67 Penn. St. 
 436. 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 r. Waddinghan, 10 Hare 1. See Sohier v. Williams, 1 Curtis C. 
 C. 479. u To force a title on a purchaser," said the Vice-Chancellor in 
 Rogers v. Waterhouse, 4 Drew. 329, " the opinion of the Court in favor 
 thereof must be so clear that it cannot apprehend that another judge may 
 form a different opinion." See also Pegler v. White, 33 Beav. 403 ; Howe 
 v. Hunt, 31 Id. 420. A vendor may make an agreement for the sale of 
 his title, such as it is, and this agreement will be specifically enforced : 
 Hume r. Pocock, L. R. 1 Eq. 423-662 ; L. R. 1 Ch. App. 679. 
 
 Though equity will not compel a vendee to take a bad title, yet a pecu- 
 niary charge against a good title presents no objection, provided the pur- 
 chaser can be protected against it: Tiernan r. Roland, 15 Penn. St. 441. 
 See Cox r. Coventon, 31 Beav. 378 ; Wood r. Majoribanks, 3 De G. & J. 329 ; 
 7 H. L. Cas. 806. And the pendency of a suit for the land, which is 
 found on investigation to be groundless, is no reason for refusing specific 
 performance : Owings v. Baldwin, 8 Gill 337. When a proposed vendee 
 buys in the reversion, and then refuses to complete the contract, he may 
 be compelled to do so, with an allowance for what he has paid : Murrell 
 v. Goodyear, 1 De G., F. & J. 432. 
 
 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 r. Dunlop, 1 Wheat. 179 ; Bald- 
 win r. Salter, 8 Paige 473 ; Hepburn v. Auld, ubi supra; Graham r. Hack- 
 with, 1 Marsh. 423 ; Tyree v. Williams, 3 Bibb 366 ; Seymour v. Delancy, 
 3 Cowen 445; Moss v. Hanson, 17 Penn. St. 379; Tiernan v. Roland, 15 
 Id. 429 ; Richmond v. Gray, 3 Allen 25 ; Luckett v. Williamson, 37 Mo. 
 388. And where a vendor of land cannot make a valid title to the whole 
 land sold, the vendee may insist upon the specific performance by the ven- 
 dor, so far as such vendor can execute it : Jacobs r. Locke, 2 Ired. Ch. 286 ; 
 Henry r. Liles, Id. 407 ; Ketchum v. Stout, 20 Ohio 453 ; Collins r. Smith, 
 1 Head 251. The court will order a return of the deposit money with in- 
 terest, where the vendor cannot show a good title, and will give the ven- 
 dee a lien on the estate for the same and for costs : Turner v. Marriott, 3 
 Eq. L. R. 744. 
 
 When the performance of a contract of purchase is resisted upon grounds 
 wholly independent of the validity of the title, and the objections of the
 
 206 ADAMS'S DOCTRINE OF EQUITY. 
 
 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. (h) 1 - 
 
 (g) Clowes . Higginson, 1 Ves. & B. 524 ; commented on in 1 Sug. V. 
 & P. 228 ; Townsend v. Stangroom, 6 Ves. 328 ; Mallins v. Freeman, 2 K. 
 25 ; Kennedy v. Lee, 3 Meriv. 441. 
 
 (k) Wedgwood . Adams, 6 Bea. 600 ; Talbot v. Ford, 13 Sim. 173 ; 
 Pickering v, Ely, 2 N. C. 0. 249, 266. 
 
 purchasers are overruled ; or when the purchaser, although doubtful of the 
 title, consents by his answer to accept it when in the judgment of the court it 
 can be rendered valid, it is sufficient to warrant a decree for a specific per- 
 formance 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. When objec- 
 tions to the title must be taken, see Lyle v. Yarborough, John. 70. 
 
 1 James . State Bank, 17 Alab. 69; King v. Hamilton, 4 Peters 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 5 Western Railroad 
 Company v. Babcock, 6 Met. 346; Morss v. tlmendorf, 11 Paige 277; 
 Coles et. al., Ex'rs., v. Bowne, 10 Id. 526 ; Schmidt v. Livingston, 3 Edw. 
 Ch. 213 ; Helling v. Lumley, 5 Jur. N. S. 301 ; where the defendant 
 was compelled to perform his contract, although the performance might 
 occasion a forfeiture of this lease. 
 
 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, qucere, whether a 
 Court of equity should interfere : McFerran v. Taylor, 3 Cranch 270. And 
 a Court of equity will carry into effect the original intention of the parties 
 when defectively expressed in an instrument through fraud or mistake : 
 Hunt v. Freeman, 1 Ham. 490. For the principle in which the court pro- 
 ceeds in cases of mistake, see Swaisland v. Dearsley, 29 Beav. 430. It has 
 been held in several cases in the United States, that a bill will lie to cor- 
 rect an agreement as to lands, for mistake, upon parol evidence, and for
 
 OF SPECIFIC YERFORMANCE. 207 
 
 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 compensation for de- 
 fects. The wisdom of permitting any deviation is a subject 
 admitting of much doubt. But the particular doctrines 
 now in question are firmly established by the course of 
 
 specific performance of the agreement as corrected ; or, on the other 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. Arrington, 13 Geo. 88 ; 
 Mosby v. Wall, 1 Cushm. (Miss.) 81 : Philpott 0. Elliott, 4 Md. Ch. 273 ; 
 Moale 0. Buchanan, 11 Gill & John. 325 ; Tilton v. Tilton, 9 N. H. 385; 
 Bellows r. Stone, 14 Id. 175 ; Bradford v. Union Bank, 13 How. U. S. 57 ; 
 Gillespie t. Moon, 2 John. Ch. 585 ; Keisselbrock v. Livingstone, 4 John. 
 Ch. 144. And this doctrine is strongly approved by Judge Story, Eq. Jur. 
 \\ 160, 161, &c. But in other American cases, as Elder v. Elder, 10 Maine 
 80; Osborn v. Phelps, 19 Conn. 63 ; Westbrook . Habeson, 2 McCord Ch. 
 112; Brooks i: Wheelock, 11 Pick. 439; Miller v. Chetwood, 1 Green. 
 Ch. 199 ; Dennis v. Dennis, 4 Rich. Eq. 307 ; Best v. Stow. 2 Sandf. Ch. 
 298 ; Climer v. Hovey, 15 Mich. 18 ; and in England, Woollam . 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 perform- 
 ance, that being within the discretion of a chancellor, it cannot furnish a 
 reason for active relief by the execution of the agreement, in the face of 
 the Statute of Frauds. For, it is obvious that if any part of the agree- 
 ment remain in parol, the wfcole 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., 404. 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. 
 See, Gilroy 0. Alis, 22 Iowa 174.
 
 208 ADAMS'S DOCTRINE OF EQUITY. 
 
 precedent, and may perhaps be considered, not so much 
 deviations from the rule of law, as subordinate equities, 
 or develop ements from the original doctrine, that spe- 
 cific performance of a contract, and not pecuniary com- 
 pensation for its- breach, is the equitable 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 for sale of lands, tenements, or heredita- 
 ments ; 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 there- 
 with, or some other person thereunto by him lawfully 
 * au thorized.^') 1 If the requirements of this statute 
 are not complied with, a contract falling within its 
 scope, so long as it remains in fieri cannot be enforced 
 either at law or in equity. It sometimes, 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 decreed to 
 perfect it by a conveyance at law. 2 
 
 () 29 Car. 2, c. 3, s?4. 
 
 1 It is not necessary that the party seeking specific performance should 
 have signed the agreement : Old Colony R. R. v. Evans, 6 Gray 25. 
 
 2 In nearly every state in the Union, the rule is settled, that part per- 
 formance takes a parol agreement out of the Statute of Frauds. Newton v.
 
 OF SPECIFIC PERFORMANCE. 209 
 
 The doctrine on this point is called the doctrine of part 
 performance, and its principle appears to be that, if one of 
 
 Swazey, 8 N. H. 9 : Downey v. Hotchkiss, 2 Day 225 ; Annan v. Merritt, 
 13 Conn. 478 : Pugh v. Good, 3 W. & S. 56 ; Harris p. Knickerbacker, 
 5 "Wend. G38 ; Parkhurst v. Van Cortland, 14 Johns. 15 ; Hall & Wife v. 
 Hall et al., 1 Gill 383 ; Tilton r. Tilton, 9 N. H. 36 ; Wilde v. Fox, 1 
 Rand. 165; Gough v. Crane, 3 Md. Ch. 119: Johnson v. McGruder, 15 
 .Mis*. 365: Stoddart c. Tuck, 5 Md. 18 ; Dougan v. Blocher, 24 Penn. St. 
 28 : McCue r. Johnston, 25 Penn. St. 306; Printup v. Mitchell, 17 Geo. 
 558 : Offenhouse v. Burleson, 11 Texas 87 ; Parke . Seewright, 20 Miss. 
 85; Despain v. Carter. 21 Id. 331; Arguello v. Edinger, 10 Cal. 150; 
 and see the rules upon this subject stated in Purcell v. Miner, 4 Wall. S. C. 
 513 ; Chastain v. Smith, 30 Geo. 96. Though the agreement must be clearly 
 and unequivocally proved : Charnley v. Hansbury, 13 Penn. St. 16 ; Owinga 
 v. Baldwin, 8 Gill. 337 ; Bracken p. Hambrick, 25 Texas 408 ; Broughton 
 v. Coffer, 18 Gratt. (Va.) 184; Knoll v. Harvey, 19 Wis. 99: and must be 
 shown distinctly to be referable exclusively to the contract set up in the 
 bill : Duvall v. Myers. 2 Md. Ch. 401 ; Eyre v. Eyre, 4 Green (X. J.) 102; 
 Patrick r. Horton, 3 W. Va. 23 ; and the remedy must be mutual : Smith 
 /-. M.-V.-igh, 3 Stockt, 239: Meason r. Kaine, 63 Penn. St. 335; see also 
 Van Dore'n r. Robinson, 1 Green (N. J.) 256. 
 
 But in some of the states, as in Tennessee, North Carolina, Massachu- 
 setts and Maine, the general rule is different. See Patton r. McClure, 1 
 Mart. A- Yorg. 333 : Ridley v. McXairy et al.. 2 Humph. 174 ; Stearns v. 
 Ilubbard, 8 Greenl. 320 ; Parker P. Parker, 1 Gray 409 ; Wilton v. Har- 
 wood, 23 Maine 131; Patterson v. Yeaton, 47 Maine 308; Robeson v. 
 Hornbaker, 2 Green. Ch. 60 ; Brooks v. Wheelock, 11 Pick. 439 ; Wingate 
 v. Dail, 2 Har. & J. 76 ; Ellis v. Ellis, 1 Dev. Eq. 341 ; Albea v. Griffin, 2 
 Dev. & Bat. Eq. 9 ; Dunn v. Moore, 3 Ired. Eq. 364 ; Allen v. Chambers, 
 4 Id. 125. If, however, the statute is set up, the money will be decreed 
 to be refunded with interest, and as against the vendors, it will be decreed 
 a lien on the land agreed to be conveyed: Hilton p. Duncan, 1 Cold. 
 (Tenn.) 313. 
 
 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. Wills, 6 Wharton 153; Jackson r. Cutright, 5 Munf. 
 308 ; Haight v. Child, 34 Barb. 186 ; Hatcher . Hatcher, 1 McMulhurs 
 Ch. 311 ; Smith v. Smith, 1 Rich. Ch. 130; Anderson r. Chick, 1 Bailey 
 Ch. 118 ; Hood r. Bowman, 1 Freem. Ch. 290; Bean r. Valle, L' Mi.-s. 126; 
 Johnston p. Glancy, 4 Blackf. 94; Sites P.Keller, 6 Ham. 483: contra, 
 Townsend v. Houston, 1 Harring. 532 ; McMurtrie r. Bennett, Harring. 
 Ch. 124. But where a party who has paid the purchase-money upon a 
 14
 
 210 ADAMS'S DOCTRINE OF EQUITY. 
 
 the contracting parties induce the other so to act, that, if 
 the contract be abandoned, he cannot be restored to his 
 
 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 Conist. 403. See Nunn v. Fabian, L. R. 1 Ch. Ap. 35. 
 
 When a parol contract is entered into in consideration of marriage, the 
 solemnization of the marriage is not such a part performance as will take 
 the case out of the Statute: Caton v. Caton, L. R. 1 Ch. Ap. 137. Part 
 performance by the party sought to be charged does not take the case out 
 of the statute : Id. 
 
 The part performance of a parol agreement to devise lands will take the 
 case out of the statute : Davison v. Davison, 2 Beas. 246 ; Johnson v. Hub- 
 bell, 2 Stockt. 332 ; Watson v. Mahan, 20 Ind. 223. 
 
 And where the purchaser has taken possession, paid the purchase-money, 
 and made improvements thereon, equity will enforce a specific perform- 
 ance: Casler v. Thompson, 3 Green Ch. 59 ; Wetmore v. White, 2 Cal. Ca. 
 87 ; Ellis v. Ellis, 1 Dev. Ch. 180 (contra, s. c. 341) ; Smith v. Smith, 1 
 Rich. Ch. 130 ; Massey v. Mcllwain, 2 Hill Ch. 421 ; Cox v. Cox, Peck 443 ; 
 see also Johnston v. Glancy, 4 Blackf. 94 ; Tibbs v. Barker, 1 Blackf. 58 ; 
 Moreland v. Lemasters, 4 Id. 383; Brewer v. Brewer, 19 Ala. 481; 
 School Dist. No. 3 v. MacLoon, 4 Wis. 79 ; Ramsey v. Listen, 25 111. 114 ; 
 Stevens . Wheeler, Id. 300; Neatherly v. Ripley, 21 Tex. 434; Mims v. 
 Lockett, 33 Ga. 9; Perkins v. Hadsell, 50 111. 216; Howe v. Rogers, 32 
 Tex. 218 ; Freeman v. Freeman, 43 N. Y. 34. Such improvements must be 
 of a permanent, nature, or of great value : Peckham v. Barker, 8 R. I. 17. 
 
 So it is a sufficient part performance to take the case out of the Statute 
 of Frauds for the purchaser to take possession of the lauds sold by virtue 
 of the agreement, where the assent of the vendor is shown, or is inferable : 
 Smith v. Underdunk, 1 Sandf. Ch. 579 ; Pugh v. Good, 3 W. & S. 56 ; 
 Moale v. Buchanan, 11 Gill & J. 314 ; Hart v. Hart, 3 Dessaus. 592 ; Ander- 
 son v. Chick, 1 Bailey Ch. 118; Brock v. Cook, 3 Porter 464; Wagoner 
 v. Speck, 3 Ham. 292; Palmer v. Richardson, 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 W. & S. 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 ; see also Mims v. 
 Lockett, 33 Ga. 9 ; neither is the remaining in possession of the purchaser, 
 if he was in possession at the time of the purchase : Hatcher v. Hatcher, 
 1 McMullan Ch. 311 ; Johnston v. Glancy, 4 Blackf. 94; Christy v. Barn- 
 hart, 14 Penn. St. 260; Mahana v. Blunt, 20 Iowa 142. The part per- 
 formance must be such as would make the party asking the specific relief 
 a wrongdoer in case the specific performance were not decreed. And de-
 
 OF SPECIFIC PERFORMANCE. 211 
 
 former position, the contract must be considered as per- 
 fected in equity, and a refusal to complete it at law is in 
 the nature of a fraud. 1 Such, for instance, is the case, 
 where upon a parol agreement for the purchase of an 
 estate, a party, not otherwise entitled to the possession, 
 is admitted thereto ; for if the agreement he invalid, he 
 is made a trespasser, and is liable to answer as a tres- 
 passer at law. The equity is still stronger if, after being 
 let into possession, he has been allowed to build and other- 
 wise to expend money on the estate. If the possession 
 may be referred to an independent title, e. 'g., where it is 
 held under a previously existing tenancy, the same prin- 
 ciple does not apply, unless the parties so conduct them- 
 
 livery of possession must have been in pursuance and part execution of 
 the agreement charged in the bill : Ham v. Goodrich, 33 N. H. 32. 
 
 Continuance of a previous possession may be a part performance: Blan- 
 chard v. McDougal, 6 Wis. 167 ; Spalding v. Conzelman, 30 Missouri 177. 
 See however Mahance v. Blunt, supra. Where a vendor files a bill for 
 specific performance, part performance by the vendee cannot be used to 
 take the case out of the statute : Luckett v. Williamson, 37 Mo. 388, 
 
 For other general instances of part performance, see Phillips v. Edwards, 
 33 Beav. 440 ; Pain v. Coombs, 1 De G. & J. 34 ; Rankin v. Lay, 2 De G., 
 F. &. J. 72 5 Daniels v. Lewis, 16 Wis. 140 ; Peckham r. Barker, 8 R. I. 
 17 ; Welsh t>. Bayard, 21 N. J. Eq. 186 ; Richmond v. Foote, 3 Lans. (N. Y.) 
 244; Mason v. Blair, 33 111. 194; Hedrick v. Hern, 4 W. Va. 620. 
 
 The rule has recently been stated to be in Pennsylvania, that every parol 
 contract is within the Statute of Frauds, except where there has be-en such 
 performance a* cannot be 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. Proof of a parol contract for the sale of lands, delivery 
 of possession pursuant thereto, part payment of the purchase-money and 
 valuable improvements, are the full measure of what is required to take a 
 case out of the statute : Milliken v. Dravo, 67 Penn. St. 230. 
 
 1 Gilbert v. The Trustees of the East Newark Co., 1 Beas. 180 ; Arguello 
 v. Edinger, 10 Cal. 150 ; Paine v. Wilcox, 16 Wis. 202.
 
 212 ADAMS'S DOCTRINE OF EQUITY. 
 
 selves, as to show that they are acting under the contract, 
 nor does it apply to any acts which do not alter the posi- 
 tion 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 perform- 
 ance of the contract, yet their consequences may be set 
 r*c7n r ight by *damages at law, and they do not place 
 the parties in a position from which they can only 
 be extricated by its completion, (k) 1 
 
 The same principle which establishes a parol contract 
 where the title under it is sustained by part performance, 
 is also applicable where the purchaser of real estate has 
 waived by his conduct any objection of title. 2 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 
 
 (k) Mitf. 266 ; 1 Sug. V. & P. c. iii, s. 7 ; Wills v. Stradling, 3 Ves. 378 ; 
 Cooth v. Jackson, 6 Id. 12 ; Clinan r. Cooke, 1 Sch. & L. 22, 41 ; Suther- 
 land v. Briggs, 1 Hare 26 - 7 Dale v. Hamilton, 5 Id. 369, 381 ; Mundy v. 
 Joliffe, 5 M. & C. 167. 
 
 1 A written agreement will be specifically enforced in equity, according 
 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., M. & G. 785. 
 
 2 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 a vendee 
 resorting to equity to compel a vendor to perform. In the first case, if the 
 vendor cajinot make out a title as to part of subject-matter of the contract, 
 equity will not compel the vendee to perform the contract pro tanto. But 
 where a vendee seeks a specific execution of an agreement, there is much 
 greater reason for affording him the aid of the court, where he is desirous 
 of taking the part to which a title can be made : Waters v. Travis, on ap- 
 peal, 9 Johns. 450. See S. E. Railway v. Knoll, 10 Hare 122 ; Hopper v. 
 Hopper, 1 Green (N. J.) 147.
 
 OF SPECIFIC PERFORMANCE, 213 
 
 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. (I) In equity, however, the purchaser may 
 accept the defective title, and by treating the contract as 
 already performed, may preclude himself from insisting on 
 any further title. He may, for instance, thus bind him- 
 self by taking possession and doing acts of ownership after 
 he is aware that objections exist, where such possession 
 and acts of ownership are not authorized by his contract ; 
 or he may do so by simple acquiescence. 1 The waiver, 
 however, must be intentional ; and his conduct is merely 
 evidence from which the intention may be presumed. If, 
 therefore, there be a subsequent treaty respecting objec- 
 tions, the presumption of waiver is at an end.(m) And 
 even if he has waived his right to call for a title, yet if 
 the title be proved bad, he is not compelled to accept it, 
 unless he has expressly contracted to take such title as 
 the vendor has.(w) 
 
 The second equity is that of allowing time to make out 
 *a title beyond the day which the contract speci- 
 fies. It is an obvious principle, both of law and 
 of equity, that no one can have a contract enforced in his 
 
 (I) Goss v. Lord Nugent, 5 B. & Ad. 58. 
 
 (?) Knatehbull v. Grueber, 1 Mad. 153, 170 ; Burroughs c. Oakley, 3 
 Sw. 159 ; Calcraft v. Roebuck, 1 Ves. J. 221 ; Osborne v. Harvey, 1 N. C. C. 
 116 ; 2 Sug. V. & P. c. viii, 8. 1. 
 
 () Warren r. Richardson, You. 1 ; Blachford v. Kirkpatrick, 6 Bea. 
 232 ; Duke i: Barnett, 2 Coll. 337. 
 
 1 Palmer v. Richardson, 3 Strob. Eq. 16. If the vendee wishes to rescind 
 the contract, he must give up possession, or do some other act indicating 
 his intention: Thompkins r. Hyatt, 28 N. Y. 347; Mullin v. Bloomer, 
 11 Iowa 360.
 
 214 ADAMS'S DOCTRINE OF EQUITY. 
 
 favor, unless he has performed, or is ready to perform, 
 his own part. And it would apparently follow from this 
 principle that, if the seller of an estate has contracted to 
 show a title hy a specified day, and has failed to do so, 
 he cannot afterwards enforce his contract. This conclu- 
 sion is accurate with respect to proceedings at law, but is 
 modified in equity by the doctrine already noticed, that 
 the -contract itself is in the nature of a title. And it is 
 accordingly held that if a substantial ownership exists, 
 though the title be not fully cleared on the appointed day, 
 specific performance may be decreed ; and the Court may 
 rectify the incidental delay by giving the intermediate 
 rents to the 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." 1 
 
 It is not, however, to be understood from this maxim 
 that time cannot be made of the essence of the contract. 
 The mere fact that a day has been specified for comple- 
 tion, will not per se render it essential. But the parties 
 may contract on what terms they will, and may declare, 
 if they think fit, that it shall be so considered. The 
 same conclusion may be drawn by implication from the 
 nature of the 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 
 
 1 Remington 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 ; Erninons v. Kiger, 23 Ind. 483.
 
 OF SPECIFIC PERFORMANCE. 
 
 notice that he abandons the contract, and if the other 
 makes no prompt assertion of his right, he will be consi- 
 dered as acquiescing in such notice, and as abandoning 
 his equity for specific performance.^.) 1 
 
 (o) Walker v. Jeffreys, 1 Hare 341, 348 ; King . Wilson. 6 Bea. 124; 
 1 Sug. V. & P. c. v. 
 
 1 Time is not generally of the essence of the contract, but where it ap- 
 pears that time is really material to the parties, the right to a specific per- 
 formance may depend on it : Garnett v. Macon, 2 Brock. 185 ; s. c. 6 Call. 
 308 : Garretson v. Vanloon, 2 Iowa 128 ; Armstrong v. Pierson, 5 Clarke 
 (la.) 317 ; Scarlett v. Hunter, 3 Jon. Eq. 84 ; Morris v. Hoyt, 11 Mich. 9 ; 
 Du Bois r. Baum, 46 Penn. St. 537 ; Edwards t?. Atkinson, 14 Texas 373 ; 
 Keller r. Fisher, 7 Ind. 718 ; Potter v. Tuttle, 22 Conn. 513 ; Wells v. 
 Maxwell, 32 Beav. 408 ; Morgan r. Scott, 26 Penn. St. 55 ; Hanna v. Rate- 
 kin, 43 111. 462; Andrews v. Bell, 56 Penn. St. 343; Miller . Henlan, 51 
 Id. 265 ; Spaulding v. Alexander, 6 Bush (Ky.) 160. 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 r. Lynch, 1 John. Ch. 370 ; Jackson r. Ligon, 3 Leigh 
 161. But see Brashier v. Gratz, 6 Wheaton 528; Bank of Columbian. 
 Hagner, 1 Pet. 465 ; Hepburn r. 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. 
 Though in Goldsmith v. Guild, 10 Allen 239, the Court seemed to think 
 that in this country time should be made the essence of the contract. See 
 also, Macbryde r. Weekes, 22 Beav. 533. Mistake may sometimes prevent 
 time from becoming of the essence when it otherwise would : Todd r. Taft, 
 7 Allen 371. Very great delay, e. </., twenty one years, will not be excused: 
 Green r. Covilland, 10 Cal. 317. See also, Francis v. Love,3 Jon. Eq. 
 321 ; Stretch . Schenck, 23 Ind. 77. 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 c. Michael, 4 Sandf. S. C. 374; Patchin r. 
 Lamborn, 31 Penn. St. 314; Ives r. Armstrong, 5 R. I. 567; Stow r. 
 Russell, 36 111. 18; Heckard v. Sayre, 34 Id. 142; King P. Ruckman, 
 liu X. J. Eq. 316. A reasonable time must, however, be given on a 
 demand for performance : Parkin . Thorold, 16 Jurist 959. Time also
 
 216 ADAMS'S DOCTRINE OF EQUITY. 
 
 aDserice f an J special matter, a wide 
 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, (p) 
 And in some cases where a person, being owner of a 
 portion only of the estate, or having but a limited inter- 
 est 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.(^) 
 
 It has been sometimes attempted to extend the maxim, 
 that "time is not of the essence of a contract," to cases 
 where covenants have been contained in a lease that the 
 lessor will renew, on request, within a specified time, 
 and the lessee has failed in making the request. In cases 
 of this kind, if the delay has been occasioned by unavoid- 
 able accident or misfortune, which has disabled the lessee 
 from applying at the stated time, it seems that he may 
 have relief in equity. But unless there be some special 
 
 (p) Townsend v. Champernowne, 3 Y. & C. 505 ; 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. 
 
 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, or surety for the rent being pro- 
 cured 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 ; 
 Magoffin v. Holt, 1 Duvall (Ky.) 95. 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., M. & G. 80.
 
 OF SPECIFIC PERFORMANCE. 217 
 
 circumstances of excuse, a specific performance will not 
 be decreed ; for the contract is, that the question of 
 renewal or non-renewal shall be determined at the time 
 appointed, and if the lessee were relievable, notwith- 
 standing the delay, the effect would be to bind the lessor, 
 and to leave himself unbound, (r) 
 
 The third equity is that of allowing a conveyance with 
 compensation for defects where a contract has been made 
 for sale of an estate, which cannot be literally performed 
 in toto, whether by reason of an unexpected failure in the 
 title to part, of inaccuracy in the terms of description or 
 of diminution in value by liability to a charge. It is not 
 unusual to provide against these contingencies by a 
 ^condition that misdescriptions and errors shall 
 not vitiate the sale, but that a compensation shall 
 be given for the difference in value. But, unless there be 
 such a condition, the contract cannot be partially enforced 
 at law ; for a Court of law has no adequate machinery by 
 which it may investigate the several points of variance, 
 and determine how far they affect the essence of the con- 
 tract, 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 purchaser insist on paying a part only in respect 
 of a partial failure in the sale.(s) In equity, on the 
 other hand, there is no difficulty in making the requisite 
 investigation; and therefore, on a bill for specific perform- 
 ance, inquiry will be made whether the property can be 
 either literally or substantially transferred. If a sub- 
 stantial transfer can be made, it has been considered 
 
 (r) Bayley r. Corporation of Leominster, 3 B. C. C. 529 ; City of London 
 
 r. Mitford, 14 Ves. 41 ; Harries v. Bryant. 4 Iiu>s. 89. 
 (s) Johnson r. Johnson, 3 B. & P. 162.
 
 218 ADAMS'S DOCTRINE OF EQUITY. 
 
 against conscience to take advantage of small circum- 
 stances of variation. 1 
 
 In such a case, therefore, where the mistake made has 
 been bond fide, and not material to the purchaser's enjoy- 
 ment, the vendor may insist on performance with compen- 
 sation. 2 But it must be clear that the defect is not 
 substantial, for a purchaser cannot be required against his 
 will to pay for anything but what he has bought. He is 
 not, for example, compellable to accept a lease instead of 
 
 1 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 Dessaus. 
 160. A deficiency of 171 acres out of 662 is not such a deterioration as 
 will entitle the purchaser to have a contract rescinded, notice being given 
 at the sale that a claim existed, and that if it succeeded a proportional de- 
 duction would be made : Wainwright v. Read, 1 Dessaus. 573. See also 
 Cordingley v. Cheesebrough, 3 Giff. 496. 
 
 2 Hepburn v. Auld, 5 Cranch 26'2; Evans v. Kingsberry, 2 Rand. 120; 
 Rankin v. Maxwell, 2 A. K. Marsh. 488 ; King v. Bardeau, 6 John. Ch. 
 38 ; Wiswall v. McGowan, 1 Hoff. Ch. 125 ; Harbers v. Gadsden, 6 Rich. 
 Eq. 284. Damages may in some cases also be decreed : Wiswall v. Mc- 
 Gowan, ubi supra ; Slaughter v. Tindle, 1 Lit. 358 ; Fisher v. Kay, 2 Bibb 
 434; Wright v. Young, 6 Wis. 127. And the rule of compensation on a 
 bill for a specific performance, where a conveyance cannot be enforced, is 
 the value of the land at the time the contract should have been performed : 
 Dustin v. Newcome/, 8 Ham. 49. See, on this subject, note to Seton v. 
 Slade, 2 Lead. Gas. Eq., p. ii. 33. Compensation in money, however, is not 
 always proper ; thus, on a bill for specific performance of an agreement 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 assigned to the com- 
 plainant, in order to make up his full share, regard being had to quantity 
 and quality, and to accessability and convenience in mining, with reference 
 to all the parties interested, instead of decreeing the value in money of the 
 coal taken out and sold : Young v. Frost, 1 Md. 377 ; King v. Ruckman, 
 20 N. J. Eq. 316. See also Coleman's Appeal, 62 Penn. St. 252. 
 
 In Pennsylvania it is competent for a jury, on principles of equity, to 
 find conditional damages, to be released on specific performance of a con- 
 tract: Decamp v. Feay, 5 S. & R. 322; Hauberger v. Root, 5 Penn. St. 112.
 
 OF SPECIFIC PERFORMANCE. 219 
 
 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, whether 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- 
 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, (u) 1 
 
 In both cases alike, whether the claim be made by the 
 vendor or the purchaser, the defect must be one admitting 
 
 (t\ Stewart v. Alliston. 1 Meriv. 26; Knatchbull r. Grueber, 1 Mad. 153; 
 1 9ug. V. & P. c. vii : [Tiernan v. Roland, 15 Penn. St. 429.] 
 
 (u) Thomas v. Dering, 1 K. 729 ; Wheatley v. Slade. 4 Sim. 126 ; Graham 
 v. Oliver, 3 Bea. 124 ; Nelthorpe r. Holgate, 1 Coll. :03. 
 
 1 Waters v. Travis, 9 Johns. 464 ; Erwin v. Myers, 46 Penn. St. 96- 
 107 ; Collins v. Smith. 1 Head 251. Where a purchaser of land, who, on 
 faith of a parol contract, has entered into possession and has made valuable 
 improvements, but, on bill filed, fails to make out such a case as would en- 
 title 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 Ala. 353 ; Rockwell r. Lawrence, 2 Halst. Ch. 190. In such 
 case the land should be charged as against the vendor and his representa- 
 tives for the amount of compensation found to be due, unless there be some 
 circumstances which would make this improper. The insolvency of the 
 vendors estate, he being dead, is not a sufficient reason for refusing so to 
 charge 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 Ala. 295.
 
 220 ADAMS'S DOCTRINE OF EQUITY. 
 
 of compensation, and not a mere matter of arbitrary 
 damages, (v) And the compensation given must be really 
 compensation for a present loss, and not indemnity against 
 a future risk. For the 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 contingent charge, a 
 purchaser has been compelled to accept the title with a 
 security protecting him against the charge. 1 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 pur- 
 chaser to accept an indemnity. (wY 
 
 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. 3 
 
 The remedies at law for such unlawful detainer are by 
 
 (v} White v. Cuddon, 8 Cl. & F. 766, 792 ; Lord Brooke c. Rounthwaite, 
 5 Hare 298. 
 
 (w) Fildes v. Hooker, 3 Mad. 193 ; Aylett c. Ashton, 1 M. & C. 105, 114 
 2 Surg. V. & P. c. x, s. 2. 
 
 1 See Tiernan . Roland, 15 Penn. St. 441. 
 
 2 A Court of Chancery will notxlecree compensation as a distinct head 
 of equitable relief; bufc when the jurisdiction of the Court has once 
 attached by reason of mistake, part-performance, or other equitable ground 
 of relief, and the vendor has rendered specific performance impossible, 
 compensation will be decreed. See Denton v. Stewart, 1 Cox Ch. 258 ; 
 Andrews . Brown, 3 Gush. 134 ; Harrison v. Deramus, 33 Ala. 463 ; Bell 
 0. Thompson, 34 Id. 633 ; Lee v. Howe, 27 Missouri 521 ; Smith v. Fly, 24 
 Tex. 345 ; Phillips v. Thompson, 1 John. Ch. 149 ; Parkhurst v. Van Cort- 
 land, Id. 273;-Scott v. Bilgerry, 40 Miss 119. See, however, Sainsbury v. 
 Jones, 5 Myl. & Cr. 1 ; Todd v. Gee, 17 Ves. 278. 
 
 See McGowin v. Remington, 12 Penn. St. 56 ; Pooley v. Budd, 14 
 Beav. 34.
 
 OF ELECTION. 221 
 
 an action of trespass for the unlawful taking, by trover 
 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 (teed or chattel, if it 
 can be found, or for the value, if it has been destroyed 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 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 a like kind.(#) 
 
 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, and those 
 only, which are based on valuable consideration. 
 
 We will first consider the equity of election. 1 It has 
 
 (*) Mitf. 117 : Duke of Somerset v. Cookson, 3 P. W. 389 ; Earl of Mac- 
 clesfield r. Davis, 3 Yes. & B. 16 ; Wood t. Rowclifle, 3 Hare 304. 
 
 1 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, and in the notes to Streatfield v. Streatfield, 1 Lead. 
 Cas. Eq. 273. See, also. Hall v. Hall, 1 Bland 130, 134; McGinnis et al. 
 r. McGinnis, 1 Kelly 496 ; Clay and Craig 0. Hart, 7 Dana 1 ; Field v. 
 Eaton, 1 Dev. Ex. 283, 286 ; Brown v. Rickette, 3 John. Ch. 553 ; Allen r. 
 Getz, 2 Penna. R. 311 ; Marriott v. Sam Badger, 5 Md. 306 ? McElfresh v. 
 Schley. 2 Gill 182 : Cauffman v. Cauffman, 17 S. & R. 16 ; Upshaw v. l> 
 shaw and Others. 2 Hen. & Munf. 381 ; Pemberton . Pemberton, 29 Mo < 
 408 ; Van Duyne r. Van Duyne, 1 McCart. 49 ; Lewis v. Lewis, 33 Penn.
 
 222 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 hot 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 belonging 
 to A. In this case there is no contract by A. to relin- 
 quish his own property ; nor is* there any condition an- 
 nexed to the testator's gift, as a term of its acceptance, 
 which requires him to do so. But the double disposition 
 made by the testator implies that he did not intend that 
 A. should have both the interests ; and he must therefore 
 r#qo-i 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. 
 
 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 compensation can 
 
 (y) Edwards v. Grand Junction Railway, 1 M. & C. 650 ; Green v. Green, 
 19 Ves. 665 ; 2 Meriv. 86 ; Gretton r. Haward, 1 Swanst. 409, 427. 
 
 St. 66 ; Gable v. Daub, 40 Id. 217 ; Reaves v. Garrett, 34 Ala. 558 ; Brown 
 t>. Brown, L. R. 2 Eq. 481 ; Brown v. Pitney, 39 111. 468.
 
 OF ELECTION. 223 
 
 attach. In the case, therefore, of an appointment under 
 a power which is voi'd 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, (s) 1 
 
 2. The testator must profess to dispose of property be- 
 longing to his donee. 2 There will therefore be no equity 
 for election, if the gift of such property be not judicially 
 cognisable ; 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) 3 So again, 
 
 (z) Bristowe v. Warde, 2 Ves. Jr. 336 ; Kater v. Koget, 4 Y. & C. 18. 
 (a) Brodie v. Barry, 2 V. & B. 127; Sheddon v. Goodrich, 8 Ves. 481. 
 
 1 Fowler's Trust?. 27 Bear. 362. 
 
 2 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 c. 
 Findlay, 2 Rawle 168. 
 
 3 Snelgrove v. Snelgrove, 4 Dessaus. 274 ; Melchor v. Burger, 1 Dev. &, 
 Bat. 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: Maxwell v. 
 Maxwell, 2 De G., M. & G. 705; Jones v. Jones, 8 Gill 197. See also 
 Kearney r. Macomb, 1 Green (N. J.) 189. In Maxwell v. Maxwell, ut 
 supra., 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 property incapable, though his own, of passing 
 by the particular act." 
 
 But a case for election may arise, even where a will is incapable of
 
 224 ADAMS'S DOCTRINE OF EQUITY. 
 
 where a feme coverte has made a will in exercise of a tes- 
 tator's power of appointment, and assumed to dispose of 
 other property also, the gift of such other property is 
 judicially non-existent; and her husband may take a 
 benefit under the. appointment, without relinquishing his 
 marital right, (b) The same principle applies where a 
 testator, having a limited power of appointment, exer- 
 P..Q ,-, cises it in favor of the *legal object, and then at- 
 tempts 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 respect of other interests 
 which he may take under it.(c) 1 
 
 If, on the other hand, the devise is in itself a valid de- 
 vise, but is ineffectual to pass the particular property, the 
 doctrine of election is not excluded. Such, for example, 
 was the case where a will of earlier date than 1 Viet. c. 
 26, professed to extend to after-acquired lands. The 
 lands did not pass by the will ; but if the heir claimed an 
 interest under it, he was put to his election. (c?) 2 
 
 (b) Rich v. Cockell, 9 Ves. 369. 
 
 (c) Carver v. Bowles, 2 R. & M. 301 : Kater v. Roget, 4 You. & Col. 18 ; 
 [Blacket v. Lainb, 14 Beav. 482.] 
 
 (d) Churchman v. Ireland, 4 Siin. 520 ; 1 Russ. & My. 250 ; Thelluson v. 
 Woodward, 13 Ves. 209. 
 
 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: Kutt v. Nutt, 1 
 Freem. Ch. 128. 
 
 1 So where there is a recital of an intention, under a belief on the part 
 of the testator that is erroneous, there is not a case of election : Box v. 
 Barrett, L. R. 3 Eq. 244. 
 
 2 s. P. McElfresh v. Schley, 2 Gill 182 ; contra City of Philadelphia v.
 
 OF ELECTION. 225 
 
 I 
 
 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 j 1 e. </., where a 
 testator gives a legacy to his widow entitled to dower, 
 and devises his real estate to another person, under cir- 
 cumstances 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 hypothesis, the 
 widow is bound to elect. But it is otherwise, if the de- 
 vise be in general terms. For it may be intended 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 property. (e) 2 For the 
 
 (e) Birmingham v. Kirwan, 2 Sch. & Lef. 444; Holdich r. Holdich, 2 
 X. C. C. 18 ; Ellis v. Lewis, 3 Hare 310 ; 1 Jarm. on Dev. 366, 408 ; 
 Lowes L\ Lowes, 5 Hare 501. 
 
 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. See 1 Lead. 
 Cas. Eq. 407, American note ; Hall . Hall, 2 McCord Ch. 269 ; City of 
 Philadelphia . Davis, ut sup. See Schroder v. Schroder, 18 Jur. 987. 
 
 1 It must be clear, beyond reasonable doubt, that the testator designedly 
 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 c. Sackett, 15 N. Y. 365 ; Miller v. Thurgood, 33 Beav. 499. A 
 devise of an estate does not impart a devise free of encumbrances, so as to 
 put the encumbrancers to their election; Stephens v. Stephens, 3 Drew. 
 697 5 1 De G. & J. 62. The rule as to election is applicable only as be- 
 tween a gift under a will and a claim dehors the will and adverse to it, and 
 not as between one clause in a will and another clause in the same will : 
 Wollaston v. King, L. R. 8 Eq. 165. 
 
 2 See, as to the application of the doctrine of election to the case of a de- 
 vise or bequest made to the widow of a testator, when the estate of which 
 she is dowable, is disposed to orthers : Adsit v. Adsit, 2 Johns. Ch. 448, 
 and Gordon, Adm'r., v. Stevens, 2 Hill Ch.46; Brown v. Caldwell, 1 Speer's 
 Eq. 322; Whilden . Whilden, Riley's Ch. 205; Timberlake r. Parrish's 
 Ex'r., 5 Dana 345 ; Kinsey v. Woodward, 3 Harring. 459 ; Smith v. Kniskern, 
 4 John. Ch. 9; Wood v. Wood, 5 Paige 597; Havens v. Havens et al., 1 
 
 15
 
 226 ADAMS'S DOCTRINE OF EQUITY. 
 
 same reason, it has been decided, that the doctrine of 
 election does not apply to creditors, but that they may 
 take the benefit of devise of lands for payment of debts, 
 and at the same time enforce their legal claims against 
 r*Qpn Personal estate, to the exclusion of *specific lega- 
 tees. For it will be presumed that the testator 
 bequeathed no more than what really belonged to him, and 
 that the legatees were to take the personal estate subject 
 to its ordinary liabilities^/) 1 
 
 In like manner, no case of election will arise, if the tes- 
 tator shows by the terms of his gift, that he is doubtful 
 whether the property in fact belongs to him, and that 
 he only intends to dispose of it, if it is his own; e. g., 
 if he directs a different disposition, in the event of its 
 proving that he has no power to give, or if he expressly 
 makes the deposition, in case he has power, or so far as 
 he lawfully can or may.(^) 
 
 (/) Kidney v. Coussmaker, 12 Ves. 136. 
 
 ( g) Bor. v. Bor., 3 B. P. C. by Toml. 167 ; Church v. Kemble, 5 Sim. 525. 
 
 Sandf. Ch. 325 ; Fuller v. Yates, 8 Paige 325 ; Sandford v. Jackson, 10 Id. 
 266 ; Webb v. Evans, 1 Binney 565: Kennedy v. Nedrow, 1 Dal. 415 ; Snel- 
 grove v. Snelgrove, 4 Dessaus. 274 ; Ambler v. Norton, 4 H. & M. 23 ; 
 Tobias v. Ketchum, 36 Barb. 304 ; Bending v. Bending, 3 K. & J. 257 ; 
 Bradford v. Kents, 43 Penn. St. 474; Pollard v. Pollard, 1 Allen 490; 
 Dodge v. Dodge, 31 Barb. 413 ; Pemberton v. Pemberton, 29 Missouri 408 ; 
 Sandoe's Appeal, 65 Penn. St. 314 ; Carder v. Commissioners of Fayette 
 Co., 16 Ohio 353. This subject has been very fully and ably discussed in 
 the notes to Streatfield v. Streatfield, 1 Lead. Gas. Eq. 225. 
 
 1 That the doctrine of election does not apply to creditors, has been de- 
 nied as a general rule in Pennsylvania: Irwin v. Tabb, 17 S. & R. 4195 
 Adlum v. Yard, 1 Rawle 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 Lanah.n v. Latrobe, 7 Md. 268. It is otherwise, 
 however, as to assignments fraudulent in fact : Hays v. Heidelberg, 9 Penn. 
 St. 207 ; and an inclination was there manifested 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 Waters v. Howard, 1 Md. Ch. 112.
 
 OF ELECTION. 227 
 
 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 au- 
 thority, however, seems to be against its admissibility, 
 and in favor of abiding by the ordinary rule.(^) 1 
 
 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 the 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 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 right. 2 If, 
 therefore, a bill be filed against him, he may insist 
 
 (h) Druce . Dennison, 6 Ves. 385 ; Dummer v. Pitcher, 2 M. & K. 262 ; 
 Clementson . Gandy, 1 K. 309 ; 1 Jarm. on Wills 391 ; Wigram on Wills 39. 
 
 1 The intention to raise an election must clearly appear on the face of 
 the will : Jones . Jones, 8 Gill 197 ; McElfresh v. Schley, 2 Id. 182 ; Waters 
 r. Howard, 1 Md. Ch. 112; Wilson v. Arny, 1 Dev. & Batt. Eq. 376. 
 It cannot be raised by evidence dehors : City of Phila. v. Davis, 1 Whart. 
 490 ; Timberlake . Parish, 5 Dana 345 ; Waters . Howard, 1 Md. Ch. 
 112. Though there will be no objection to such evidence so far as it goes 
 only to show the state and circumstances of the property : Waters v. 
 Howard, ut sup. 
 
 2 Snelgrove v. Snelgrove, 4 Dessaus. 274 ; Adsit v, Adsit, 2 John. Ch. 
 44* ; Pinckney v. Pinckney, 2 Rich. Eq. 219; Upshaw . Upshaw, 2 Hen. 
 & Munf. 381 ; Duncan r. Duncan, 2 Yeates 302 ; Sopwith . Maughan, 30
 
 228 ADAMS'S DOCTRINE OF EQUITY. 
 
 on the values being ascertained before a decree to elect is 
 made; or he may himself as plaintiff sustain a bill to 
 have the accounts taken and the property ascertained, (i) 
 If he be incompetent to make his election, as in the case 
 of infancy or coverture, the Court will do so in his stead, 
 and will refer it to the Master to inquire what election 
 should be made.(^) 1 
 
 The principle which gives the right of choice to the 
 donee necessarily leads to the result that his election, when 
 made, binds himself alone, and does not affect the inter- 
 ests of donees in remainder. A contrary election by 
 them may possibly create some inconvenience; but this 
 
 (?) Pusey v. Desbouvre, 3 P. W. 315 ; Dillon v. Parker, 1 Swans. 359, 
 381. 
 (k) Gretton v. Haward, 1 Swanst. 413, n. 
 
 Beav. 235 ; Dewar v. Maitland, L. K. 2 Eq. 834 ; Douglas v. Webster, 12 
 Ib. 617. 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 ; Bradfords v. 
 Rents, 43 Id. 475. An election once made, though by matter in pais, is 
 binding: Upshaw v. TJpshaw, 2 Hen. & Munf. 381; Caston v. Caston, 2 
 Rich. Eq. 1 ; Buist v. Dawes, 3 Id. 281. As to what circumstances will 
 amount to proof of such election where the party to elect has remained in 
 possession of both estate : see Padbury v. Clark, 2 M. & G. 298 ; 2 II. 
 & Twells 341, s. c. See the result of the authorities in this point stated 
 by the Master of the Rolls in Miller v. Thurgood, 33 Beav. 496 ; also 
 Fitzsimons v. Fitzsimons, 28 Id. 417; Honywood v. Forster, 30 Id. 14; 
 Howells v. Jenkins, 2 John. & H. 706 ; 1 De G., J. & Sm. 617 ; Marriott v. 
 Sam Badger, 5 Md. 306 ; Spread v. Morgan, 11 H. L. Cas. 588 ; Whit- 
 ridge v. Parkhurst, 20 Md. 85. Where both rights are legal, an election 
 operates as an estoppel at law : Buist v. Dawes, 3 Rich. Eq. 281. When 
 a married woman can elect : see Barrow v. Barrow, 4 K. & J. 409. 
 
 1 See Robertson v. Stevens, 1 Ired. Eq. 247 ; Sledds v. Carey, 11 B. 
 Monr. 181 ; Addison v. Bowie, 2 Bland 606 ; Kavanaugh v. Thompson, 16 
 Ala. 817 ; McQueen v. McQueen, 2 Jones Eq. 16. An election by a feme 
 covert may be presumed after a great lapse of time : Tiernan v. Roland, 
 15 Penn. St. 429.
 
 OF ELECTION. 229 
 
 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 do- 
 nees be affected in their choice by acquiring derivative 
 interests under the first elector; for such derivative in- 
 terests 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. (7) 
 
 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, conforming 
 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 uncertain 
 whether the consequence of an election to take against 
 the will is confined to a liability *to compensate, [-#97-1 
 or is a forfeiture of the property devised. 1 In the 
 
 (I) Cavan v. Pulteney, 2 Ves. Jr. 544; Ward . Baugh, 4 Ves. 623. 
 
 1 This doubt seems now to be settled in England in favor of compensa- 
 tion, and against a forfeiture : Spread t?. Morgan, 11 H. L. Gas. 588. la 
 this country, it has frequently been held, that it is compensation and not 
 forfeiture, upon which equity proceeds in cases of this kind : Cauffinan v. 
 Cauffman, 17 S. & R. 16 ; City of Philadelphia . Davis, 1 Whart 490 ; 
 Stump . Findlay, 2 Rawle 168 ; Key v. Griffin, 1 Rich. Eq. 67 ; Marriott 
 c. Sam Badger, 5 Md. 306 : and the general rule was admitted so to be, in 
 Lewis v. Lewis, 13 Penn. St. 82. But in this last case, it was held, that 
 where the estate retained, is greater in value than that devised, com pen-
 
 230 ADAMS'S DOCTRINE OF EQUITY. 
 
 case of a contract for valuable consideration, the result 
 would be clearly forfeiture ; for if the party claiming will 
 not give the price, he must relinquish the benefit for which 
 it was to be paid. But in the case of election it seems to 
 be otherwise. For the equity does not originate in a gift 
 on consideration, but in the intention presumable from 
 the double gift, that the disappointed donee shall have 
 some benefit. This intention is at once effected if com- 
 pensation be the result ; but will be manifestly defeated 
 by forfeiture, unless the Court can imply a gift to the dis- 
 appointed donee, for which the testator has given no au- 
 thority, 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 forfeit- 
 ure in the will, or if the devisee instead of electing had 
 disclaimed the interest devised, (m) 
 
 The next equity which requires notice is that of meri- 
 torious, or imperfect consideration. 
 
 The doctrine of meritorious consideration originates in 
 the distinction between the three classes of consideration 
 on which promises may be based ; viz., valuable consider- 
 
 (m) 2 Sug. on Powers 145; 1 Roper, Hus. & Wife, by Jacob, 156 n. ; 
 Gretton v. Haward, 1 Sw. 433 n, ; 2 Roper on Legacies 571-8; Ker v. 
 Wauchope, 1 Bligh 1. 
 
 sation would be useless, and therefore a decree shoujd be made in favor of 
 the disappointed devisee directly, on the ground of forfeiture ; and that, 
 as a consequence, under the peculiar system of Pennsylvania, he could re- 
 cover in ejectment. In Marriott v. Sam Badger, 5 Md. 306, where a slave 
 belonging to a legatee was emanciated by will, it was held that no case of 
 election arose, because, the principle being compensation, if the slave re- 
 ceived the legacy as compensation, his master would be immediately en- 
 titled to it again, jure domini.
 
 OF IMPERFECT CONSIDERATION. 231 
 
 ation, 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 pro- 
 misor; 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, 1 of payment 
 of creditors, and of maintaining a wife and children; and 
 under this last head are included provisions made for per- 
 sons, not being children of the party promising, but in 
 ^relation to whom he has manifested 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 recognised in equity. And the doctrine 
 with respect to them is, that although a promise made 
 without a valuable consideration cannot be enforced against 
 the promisor, or against any one in whose favor he has 
 altered his intention, yet if an intended 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 per- 
 sons claiming by operation of law without an equally 
 meritorious claim. 
 
 The principal applications of this equity are in supply- 
 ing surrenders of copyholds against the heir, and in sup- 
 porting defective executions of powers, when the defect 
 is formal, against the remaindermen. 
 
 (n) Perry v. Whitehead, 6 Ves. 544; Ex parte Pye, 18 Id. 140; Powys 
 v. Mansfield, 3 M. & C. 359 5 Pym v. Lockyer, 5 Id. 'J'.t. 
 
 1 Equity will relieve against the defective execution of a power in favor 
 of a charity : Innes r. Saver, 3 Macn. & Gord. 600 : affirming s. c. 7 Hare 
 377.
 
 232 ADAMS'S DOCTRINE OF EQUITY. 
 
 The equity for supplying surrenders of copyholds origi- 
 nates in the doctrine, that a copyhold does not pass by 
 grant or devise, but by a surrender into the hands of the 
 lord to the use of the grantee, or of the will. In the one 
 case, the grantee is- entitled to immediate admission ; in 
 the other, the person 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 in equity. 
 The jurisdiction thus to supplya surrender existed whether 
 the gift were by deed or will,(o) but it was ordinarily 
 called into exercise in the case of wills ; and it is now 
 rendered of little practical importance by the enactment 
 that all real estate may be devised by will, and that copy- 
 r*QQ~| holds *shall be included 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.Qt?) 
 
 The exercise, therefore, of the equity in question is now 
 principally confined to defective executions of powers. 1 
 
 (o) Rodgers v. Marshall, 17 Ves. 294. (p) 1 Viet. c. 26, s. 3. 
 
 1 Equity relieves against the defective execution of a power, in favor of 
 purchasers, creditors, children, or a wife : Schenck v. Ellingwood, 3 Edw. 
 Ch. 175 ; Porter v. Turner, 3 S. & R. 108; Dennison v. Goehring, 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 general power of appoint- 
 ment over property, which he actually exercises, either by deed or will, 
 he thereby subjects the property to the claims of his creditors in prefer- 
 ence to the claims of his appointee. But a Court of equity will not inter- 
 fere, 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 general power. A power of 
 appointment is general, or not, within the meaning of the rule, according 
 to the person or uses to which the property may be appointed under it,
 
 OF IMPERFECT CONSIDERATION. 233 
 
 And the powers to which it applies are those which have 
 been created by way of use, as distinct from bare authori- 
 ties conferred by law. Acts done under authorities of 
 this latter kind, as, for example, leases or conveyances by 
 a tenant in tail, are only binding when regular and com- 
 plete. The principle of the distinction appears to be that 
 powers limited by use -are mere reservations out of the 
 original ownership, constituting the donee a quasi owner, 
 and the remainderman a quasi heir; and consequently 
 that, in conformity with this hypothesis, the donee's con- 
 tracts for value ought to bind the remainderman, and his 
 meritorious intention, if unaltered, 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. For the power given, though doubtless in some 
 sense a modified ownership, does not confer an absolute 
 right to dispose of the property, but a right to do so in a 
 specific way. And the chance that the power may never 
 be executed, or that it may not be executed in the man- 
 
 and not according to the time when its exercise takes effect 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 disposition 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 
 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 
 < I.. M. & G. 976 ; see 2 Sug. 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 
 Sug. 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.
 
 234 ADAMS'S DOCTRINE OF EQUITY. 
 
 ner prescribed, is an advantage given to the remainderman. 
 If, therefore, 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 consider- 
 ation. If, on the other hand, his interest is subordinate to 
 the donee of the power, the intention of such donee ought 
 to be sustained, whatever be the consideration on which 
 it rests. The objection, however, which is noticed in these 
 remarks, appears not to be peculiar to the execution of 
 powers, but to apply generally to the equity of meritorious 
 
 l~*1 001 cons ideration, an d to the principle of enforcing *a 
 gift on the ground of intention alone, as distinct 
 from any binding contract, and yet inquiring into the con- 
 sideration on which that intention was based, (q) 
 
 Whatever opinion may be entertained as to the original 
 soundness of the equity, there is no question that it is es- 
 tablished by precedent; but it is confined to cases of 
 execution formally defective, or of contract amounting to 
 such defective execution. If there be no such execution 
 or contract the Court cannot interpose ; 1 for, unless when 
 the power is in the nature of a trust, the donee has his 
 choice whether to execute it or not; and if he does not 
 execute or attempt to execute, there is no equity to exe- 
 cute 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 exe- 
 cuted by deed, may be effectuated where the execution 
 
 (q) Holmes v. Goghill, 7 Ves. 499 ; 12 Id. 206 ; 2 Sug. on Powers, c. 10. 
 
 1 Lippincott v. Stokes, 2 Hals. 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 : Id. See, also, Drusadow v. Wilde, 63 
 Penn. St. 170 ; Bingham's Appeal, 64 Id. 345.
 
 OF IMPERFECT CONSIDERATION. 235 
 
 has been by will; for the mode of execution is imma- 
 terial. But if given to be executed by will, its execution 
 by deed is altogether invalid ; for it was meant to hare 
 continuance until the death of the donee, and the deed, if 
 it avail at all, must avail to its destruction, (r) 
 
 The rule that the intention must remain unaltered does 
 not require any special notice. It might 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 enforced ; 
 and the same rule prevails where relief is sought against 
 a grandchild, although a defective execution cannot be 
 supplied in his favor. 1 It is not, however, sufficient 
 that the heir is disinherited ; for if he is provided for, 
 it is immaterial from whom the provision moved. 2 Nor 
 will the Court inquire into the relative amount of the 
 provisions made; for on that point the parent is the best 
 judge, (t) 
 
 (r} Tollett . Tollett, 2 P. W. 489 ; Reid v. Shergold. 10 Ves. 370. 
 (s) Finch v. Finch, 15 Ves. 51 ; Antrobus v. Smith, 12 Id. 39. 
 (/) Ilodgers v. Marshall. 17 Ves. 294 ; Hills . Downton, 5 Id. 557 ; 2 
 Sug. on Powers, c. 10, and App. 24. 
 
 1 See Porter v. Turner, 3 S. & R. 108. 
 
 2 See Morse v. Martin, 34 Beav. 500.
 
 236 ADAMS'S DOCTRINE OF EQUITY. 
 
 Another class of cases, to which the doctrine of meri- 
 torious consideration applies, are those where a man, sub- 
 ject to a moral duty, does an act which may reasonably 
 have been meant in satisfaction of that duty; and is there- 
 fore 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 purchaser; a 
 legacy may be construed a provision, instead of mere 
 bounty, and may on that ground bear interest from the 
 testator's death. And in like manner, if there be a prior 
 legacy bequeathed or promise made to a child, a subse- 
 quent gift or legacy may be construed as a substituted 
 portion, instead of being a cumulative benefit. 
 
 With respect to purchases by one person in the name 
 of another, it has been already stated to be a 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 purchaser 
 stands in loco parentis, a counter presumption arises. And 
 the primd facie probability is, that the purchase was meant 
 as a provision or advancement for the child .* In either 
 
 1 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 result- 
 ing trust, but an advancement: Page v. Page, 8 N. H. 187. See, how- 
 ever, Tucker v. Burrow, 2 Hem. & M. 515 ; and see, also, Williams v. 
 Hears, 2 Disney (Ohio) 604. And a purchase in the name of a wife or 
 child will be considered an advancement until the contrary is proved, and 
 no trust will result to the husband or father. It seems to be doubtful 
 whether the doctrine under consideration applies to purchases made by a
 
 OF IMPERFECT CONSIDERATION. 237 
 
 case the *docfcrine is one of presumption, not of the 
 
 f*l 021 
 construction of the conveyance itself. There is] L 
 
 therefore no rule of law which prohibits the use of parol 
 evidence, either to counteract or to support the presump- 
 tion. 1 But the only difference is that, in the case of a 
 stranger, the onus lies on those who allege that he was 
 intended to take beneficially; in the case of a child, it lies 
 on those who allege that he was to take as a trustee, (u) 
 It may, for instance, be shown that the child was already 
 fully provided for, which affords a presumption that no 
 further advancement was intended. It may be shown 
 
 (u) Hall v. Hill, 1 Conn. & L. 120. 
 
 mother. It was held not to apply in Re De Visme, 2 De G., J. & Sm. 17; 
 but Murphy v. Nathans, 46 Penn. St. 508, is the other way. See also 
 Garrett v. Wilkinson, 2 De G. & Sm. 244 ; Loyd v. Read, 1 P. Wins. 607 j 
 Hill on Trustees 160, 4th Am. ed. ; Astreen v. Flanagan, 3 Edw. Ch. 279; 
 Livingston v. Livingston, 2 John. Ch. 537 ; Sampson v. Sampson, 4 S. & R. 
 329 ; Taylor v. James, 4 Dessaus. 1 ; Partridge v. Havens, 10 Paige 618 ; 
 Knouffp. Thompson, 16 Penn St. 357; Dennison v. Goehring, 7 Id. 182 
 n. ; Dudley v. Bosworth, 10 Humph. 12; Tremper v. Barton, 18 Ohio 418 ; 
 Taylor . Taylor, 4 Gilm. 303 ; Jackson v. Matsdorff, 11 John. 91 ; Creed 
 v. Lancaster Bank, 1 Ohio St. 1 ; Smith . Smith, 21 Ala. 76. Advance- 
 ment is always a question of intention: Weavers Appeal, 63 Penn. St. 
 309; Dillman v. Cox, 23 Ind. 440. In Sterry v. Arden, 1 John. Ch. 261, 
 a voluntary advancement to a child was decided to be void against a pur- 
 chaser, 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: Guth- 
 rie v. Gardner, 19 Wend. 414: Croft v. Arthur, 3 Dessaus. 223 ; Jencks v. 
 Alexander, 11 Paige 619; Abney v. Kingsland, 10 Ala. 355; Doyle . 
 Sleeper, 1 Dana 531 ; Rucker v. Abell, 8 B. Monr. 566 ; and in Pennsylva- 
 nia, the land may be levied upon directly : Kimmel v. McRight, 2 Penn. 
 St. 38. See, also, ante, p. 34, in note. 
 
 1 This presumption of advancement may be rebutted by parol evidence : 
 Dudley r. Bosworth, 10 Humph. 12; Jackson v. Matsdorff, 11 John. 91; 
 Taylor v. Taylor, 4 Gilm. 303 ; Tremper . Burton, 18 Ohio 418. The 
 clearest evidence of a present gift, accompanied by exclusive possession 
 and valuable improvements, are necessary to establish a valid parol gift 
 between father and son : Miller v. Hartle, 53 Penn. St. 108.
 
 238 ADAMS'S DOCTRINE OF EQUITY. 
 
 that at the time of the purchase, or in immediate connec- 
 tion 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 presump- 
 tion; or again, it may be shown that at the time of mak- 
 ing the purchase, the father declared his intention either 
 against, or in favor of the presumed advancement. 1 It 
 must be observed, however, that the only question to 
 which the evidence can apply is, what the father in- 
 tended at the time of the purchase, and not whether his 
 intention has been afterwards changed. And for this 
 reason his subsequent acts and declarations cannot be 
 admitted as evidence in his favor, although those of the 
 child might be so used.(^) 
 
 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 
 r*10l *i n t en tion, a legacy shall bear interest from the 
 time fixed for payment of the principal, or if no 
 time be fixed, then from the end of a twelvemonth after 
 the testator's death. But if it be given by a parent, or 
 
 (v) Murless v. Franklin, 1 Sw. 13; Grey v. Grey, 2 Id. 594; Sidmouth 
 w. Sidraouth, 2 Bea. 447 ; Scawin v, Scawin, 1 N. C. C. 65 ; Skeats v. 
 Skeats, 2 Id. 9. 
 
 1 Subsequent declarations of the father, however, are incompetent : 
 Tremper v. Barton, 18 Ohio 418. They were admitted, however, in Speer 
 r. Speer, 1 McCart. 240.
 
 OF IMPERFECT CONSIDERATION. 239 
 
 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, (w) 1 Another instance of the same distinc- 
 tion occurs in the case of successive legacies or gifts, viz., 
 where a legacy has been bequeathed or a promise made, 
 which has been followed by a gift inter vivos, or by a 
 a legacy of later date. 
 
 (w) Raven . Waite, 1 Sw. 553 ; Donovan v. Needham, 9 Bea. 164. 
 
 1 Generally, when no time is fixed by a will, a pecuniary legacy is pay- 
 able in a year after the 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 Stunner 1 ; Eyre v. Golding, 5 Binn. 475 ; 
 Bitzer v. Hahn, 14 S. & R. 238. So in Virginia and New York: Shobe v. 
 Carr, 3 Munf. 10 ; Williamson . Williamson, 6 Paige Ch. 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 parentis: Sullivan v. Winthrop, ubi supra ; Kite 
 t-. Hite, 2 Rand 409 ; Miles c. Wister, 5 Binn. 479 ; Bitzer . Hahn, 14 
 S. & R. 232. So, though the legaty is payable at twenty-one, and with- 
 out mention of interest, Ibid. ; or is given for life, for separate use : Bird's 
 Est., 2 Pars. Eq. 168 ; Bowman's Appeal, 34 Penn. St. 19. This exception 
 does not extend to the case of a grandchild : Lupton v. Lupton, 2 John. Ch. 
 614. See Smith v. Moore, 25 Verm. 127 ; Walker v. Walker, 27 Ala. 396 ; 
 but see Bitzer v. Hahn, 14 S. & R. 232, semb. contr., also Bowman's Ap- 
 peal, 34 Penn. St. 19 ; nor to grand-nephews : Miles r. Wister, 5 Binn. 
 479 5 nor to the widow : Martin v. Martin, 6 Watts 67 ; Gill's Appeal, 2 
 Penn.' St. 231. 
 
 As a legacy to a child carries interest, in the accepted 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. When it is apparent that a legacy 
 is intended for the immediate support of the legatee, it will bear interest 
 from the death of the testator. If, however, it is charged on the income 
 of the estate, it cannot be considered due till one year has elapsed : Morgan 
 v. Pope, 7 Cold. (Tenn.) 541.
 
 240 . ADAMS'S DOCTRINE OF EQUITY. 
 
 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 admissible 
 evidence, the first legacy is a obviously at an end, as if 
 a man were to bequeath a particular horse, and were 
 afterwards to give the horse in his lifetime, or again be- 
 queath it to the same person. The construction put by 
 law on the later gift or legacy is primd facie against its 
 being meant as identical, and in favor of its being held an 
 independent benefit. And if it be conferred by a written 
 instrument, extrinsic evidence of the intention is not ad- 
 missible.^) The construction, however, may be altered 
 by a presumption of law, to be raised by a comparison of 
 the two gifts, and of the motives respectively assigned 
 for each, or by the relative position in which the parties 
 
 r*1(U1 - The first *ground of presumption, arising 
 
 from the similarity of the gifts and motives, is not 
 material to our present purpose. It is sufficient to ob- 
 serve, that mere equality of amount is not such an identi- 
 fication of the gifts as will prevent their cumulative effect. 
 But if, in addition to this, the same motive is expressed 
 for both, the double coincidence gives rise to a presump- 
 
 (x) Ex parte Dubost, 18 Ves. 140 ; Kirk r. Eddowes, 3 Hare 509 ; 2 
 Will, on Exors., 2d ed. 924 ; Hurst v. Beach, 5 Madd. 351 ; Suisse v. Lord 
 Lowther, 2 Hare 424 ; Lee v. Paine, 4 Id. 201 ; Hall v. Hill, 1 Conn. & 
 L. 120.
 
 OF IMPERFECT CONSIDERATION. 241 
 
 tion that repetition was intended, and not accumulation, (y) 1 
 The second ground of presumption arises out of the rela- 
 tive position of the parties, and is that with which we are 
 now more immediately concerned. If the donor be a 
 parent, or in loco parentis, the 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 intended as an 
 immediate payment or a modified repetition, either in full 
 or pro tantoj by reason of altered circumstances, of the 
 first. And the circumstance, that the second benefit 
 differs in amount or disposition from the first, is not incon- 
 sistent with such presumption. The doctrine on this point 
 is expressed by the maxim, that "the presumption is 
 against a double portion." (0) 2 The presumption thus 
 
 ( y) Hurst v. Beach, 5 Madd. 351 ; Suisse v. Lord Lowther, 2 Hare 424. 
 
 (z) Wharton v. Earl of Durham, 3 M. & K. 472 ; 3 Cl. & F. 146 ; Pym 
 v. Lockyer, 5 M. & C. 29 ; Suisse v. Lord Lowther, 2 Hare 424 ; Lady 
 Thynne v. Earl Glengall, 2 House Lds. Gas. 153. In Scotland the law is 
 otherwise : Campbell v. Campbell, L. R. 1 Eq. 383. 
 
 1 See the cases of Dewitt v. Yates, 10 Johns. 156 ; Jones . Creveling's 
 Ex'rs., 4 Harrison 127 ; Id., 1 Zabriskie 573. 
 
 The rule, as established by these cases, is, that where the two bequests 
 occur in the same instrument, the presumption is most strongly in favor 
 of repetition ; but if in different instruments, then the presumption is, in 
 general, in favor of cumulation. See also, Wilson v. O'Leary, L. R. 12 
 Eq. 525. In the former case, the fact that the second legacy is charged 
 upon land, will not rebut the presumption of repetition : Dewitt i>. Yates, 
 ut sup. ; Hooley v. Hatton, 1 Lead. Gas. Eq. 285. 
 
 2 Ademption only takes place where a parent bequeaths a legacy to a 
 child, and afterwards gives a portion to the same child, which is ejusdem 
 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 
 . French, 19 Geo. 316. 
 
 In New York, it has been held that the intention of a testator that a 
 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 
 16
 
 242 ADAMS'S DOCTRINE OF EQUITY. 
 
 raised, whether it be based on a comparison of the two 
 gifts, or on the relative position of the two parties, is 
 against the primd facie 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, followed 
 by a gift or legacy of later date. 1 
 
 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 promise 
 r#-|ne;-| is in *fact performed. (ft) 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 decision in this case is the 
 same as in that of double legacies. The primd facie con- 
 struction of the second gift is in favor of its being con- 
 sidered independent of the first. And that construction 
 may be rebutted, either by a comparison of the promise 
 and the gift, and of the motives for which they are re- 
 spectively expressed to be made ; or by the presumption 
 that both are by way of portion, and consequently that 
 
 (a) Hurst v. Beach, 5 Madd. 351 ; Hall v. Hill, 1 Conn. & L. 120i; Kirk 
 v. Eddowes, 3 Hare 509. 
 
 (6) Blandy v. Widmore, 1 P. W. 324; Goldsmid v. Goldsmid, 1 Sw. 211. 
 
 the will, which is forbidden by the Rev. Sts. : Langdon v. Astor's Execu- 
 tors, 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. Gas. Eq. 303, 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 IMPERFECT CONSIDERATION. 243 
 
 the second is in lieu of the first, (c) 1 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.(c?) 
 
 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 relationship, the parent 
 has become indebted. In such cases, the presumption is, 
 that a payment by the debtor, equal to or exceeding the 
 debt, is meant in discharge, and the same doctrine applies 
 to a legacy, provided it be substantially equivalent to 
 payment. (e) 2 But the presumption is much weaker than 
 w.ith respect to portions, and may be excluded by a less 
 degree of difference ; as, for example, if the legacy be 
 
 (c) Ansley v. Bainbridge, 1 R. & M. 657 ; Jones v. Morgan, 2 Y. & C. 
 403 ; Weall v. Rice, 2 R. & M. 251 ; Plunkett v. Lewis, 3 Hare 316 ; Hall 
 r. Hill, 1 Conn. & L. 120. , 
 
 (d) Wharton v. Earl of Durham, 3 M. & K. 472 ; 3 Cl. & F. 146, 155 ; 
 [Lady Thynne v. Earl of Glengall, 2 H. Lds. Gas. 153.] 
 
 (e) Plunkett P. Lewis, 3 Hare 316 ; Jeffs v. Wood, 2 P. W. 129 ; Chancey's 
 Case, 1 P. W. 408 ; Wallace v. Pomfret, 11 Ves. 542. 
 
 1 Hopwood v. Hopwood, 7 H. L. Cas. 728. A residuary legacy may be 
 adeemed, and the ademption need not be entire, but may be pro tanto : 
 Montefiore v. Guedalla, 1 De G., F. & J. 93 ; Coventry v. Chichester, 2 Hem. 
 A: M. 149. See further, on this subject, McClure p. Evans, 29 Bea. 422; 
 Ravenscroft v. Jones, 32 Id. 669 ; Hine P. Hine, 39 Barb. 507 ; Miner t). 
 Atherton's Executor, 35 Penn. St. 528. Substituted and added legacies 
 are to be raised out of the same fund and are subject to the same con- 
 ditions : Leacroft v. Maynard, 1 Ves. Jr. 279 ; Crowder p. Clowes, 2 Id. 
 449 ; Johnstone v. The Earl of Harrowby, 1 De G., F. & J. 183 ; Note to 
 Hooley v. Hatton, 1 Lead. Cas. Eq. 301. 
 
 2 This was termed a " false principle '' by the Vice-Chancellor of England 
 in Hassell v. Hawkins, 4 Drew. 468.
 
 244 ADAMS'S DOCTRINE OF EQUITY. 
 
 less than the debt, or if it be payable at a different 
 time.(/) 
 
 Whenever the presumption arises, it may, as we have 
 f*l 061 seen > * De rebutted or confirmed by evidence, not- 
 withstanding that the gift is by a written instru- 
 ment. 1 But it must be evidence in rebuttal or confirma- 
 tion of the presumption, and not evidence to construe the 
 instrument itself. 2 The presumption, therefore, must first 
 arise, and if the instrument is so worded that its primd 
 facie construction is not altered by the relationship alone, 
 extrinsic evidence of intention is not admissible, (g) 
 
 The last equity which will be considered in the present 
 chapter, is the converse to that of specific performance, 
 and consists in giving effect to discharges by matter in 
 pais of contracts under seal, and in confining the claim on 
 a contract with a penalty to the specific performance of 
 its terms. 
 
 We will first consider the doctrine as to DISCHARGES BY 
 MATTER IN PAIS OF CONTRACTS UNDER SEAL. S 
 
 It is a rule of law, that an agreement under seal, tech- 
 nically termed an agreement by specialty, can only be 
 avoided by a like specialty ; and it is therefore unaffected 
 
 (/) 2 Will, on Executors 929 ; 2 Story on Equity, s. 1122. 
 
 (g) Wallace v. Poiufret, 11 Ves. 542 ; Hall t>. Hill, 1 Conn. & L. 120. 
 
 1 Miner v. Atherton's Executor, 35 Penn. St. 528. 
 
 3 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 ; Zeiter v. Zeiter, 4 
 Watts 212. 
 
 3 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 con- 
 trol the writing, even in the absence of evidence of a fraudulent design : 
 Hultz v. Wright, 16 S. & R. 345 ; Christ v. Diffenbach, 1 Id. 464 ; Miller 
 v. Henderson, 10 Id. 292; Clark v. Partridge, 2 Penn. St. 13 ; 4 Id. 166. 
 See Keisselbrack v. Livingston, 4 John. Ch. 114.
 
 DISCHARGES, ETC., OF CONTRACTS, ETC. 245 
 
 by an accord by parol, or other matter in pais, which 
 would operate as a discharge of a simple contract, (h) In 
 equity, however, the rule is otherwise. For the form of 
 agreement is immaterial ; and if the act done is in sub- 
 stance a discharge, it will warrant a decree for the execu- 
 tion of a release, or for delivery up and cancellation of 
 the specialty. 1 
 
 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 dis- 
 charged or modified the principal's liability. In this case 
 the doctrine of the law is, that by such discharge or modi- 
 fication of the principal's liability, the surety is absolutely 
 discharged; for he has contracted to guarantee a specific 
 agreement ; and if a new agreement be substituted with- 
 out his assent, his contract is at an end.(Y) 2 
 
 *The same effect is produced if the creditor 
 enters into a binding contract to give time for pay- 
 ment to the principal. For it would be a fraud on the 
 contract, if he were afterwards to receive his debt from 
 
 (h) 1 Selw. N. P. 518, 549. 
 
 (i) Samnell v. Howarth, 3 Meriv. 272 ; Mayhew v. Crickett, 2 Sw. 186 ; 
 Smith's Merc. Law 423 ; 3 Jarman's Bythewood, 3d ed., p. 298-305. 
 
 1 Hurlbut v. Phelps, 30 Conn. 42. In general, however, the court will 
 not decree that to be a release in equity which is not so at law, unless 
 there be a valuable consideration : Cross v. Sprigg, 6 Hare 552 ; Tufnell 
 v. Constable, 8 Sim. 69 ; Peace v. Hains, 17 Jurist 1091; 11 Hare 151; 
 Campbell's Estate, 7 Penn. St. 100 ; Kidder . Kidder, 33 Id. 268. See, 
 also, Yeomans v. Williams, L. R. 1 Eq. 184 ; Taylor v. Manners, L. R. 1 Ch. 
 Ap. 48 ; and the party claiming the benefit of this equitable doctrine, must, 
 as in all other instances, do equity : Headley v. Goundry, 41 Barb. 279. 
 
 2 On the subject of the discharge of a surety by the conduct of the cred- 
 itor, see post, 268, note ; also, Pledge v. Buss, Johns. 663 ; Brubaker v. 
 Okeson, 36 Penn. St. 519 ; Henderson v. Ardery, Id. 449 ; and the notes to 
 Rees v. Berrington, 2 Lead. Cas. Eq. 814, where the American cases are 
 cited.
 
 246 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 ; for although he 
 undertakes not to sue the principal directly, he does not 
 preclude himself from enabling the surety to do so. Nor 
 will the surety be discharged by mere forbearance to sue, 
 unless there be a stipulation in the guarantee, binding the 
 party guarantied to use due diligence against the princi- 
 pal, (k) 
 
 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 conduct 
 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 guarantee. (/) 
 
 The equity for relief against enforcement of PENALTIES, 
 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. 1 
 
 () Ex parte Glendinning, Buck 517 ; Boultbee v. Stubbs, 18 Ves. 20 ; 
 Eyre v. Everett, 2 Russ. 381. 
 
 (1) Archer v. Hale, 1 Moore <fc P. 285 ; Aldridge v. Harper, 3 Moore & 
 Sc. 518 ;' Blake v. White, 1 Y. & C. 420 ; Brooks v. Stuart, 1 Bea. 512. 
 
 1 A Court of equity will always relieve against a penalty, where com- 
 pensation can be made : Hackett v. Alcock, 1 Call. 533 ; Mayo v. Judah, 5 
 Munf. 495 ; and also against back interest, secured by way of penalty : 
 Mosby v. Taylor, Gilm. 172 ; and will not aid the recovery of a penalty of 
 forfeiture, or anything in the nature of one : Livingston v. Tompkins, 4 
 John. Ch. 431 ; McKiin v. White Hall Co., 2 Md. Ch. 510 ; Shoup v. Cook,
 
 RELIEF AGAINST PENALTIES. 247 
 
 The Court of Chancery, in treating contracts as matters 
 for specific performance, was naturally led to the conclu- 
 sion that the annexation of a penalty did not alter their 
 character ; and in accordance with this view, would not on 
 the one hand permit the contracting party to evade per- 
 formance by paying the penalty ; and on the other hand, 
 would restrain *proceedings to enforce the penalty 
 on a subsequent performance of the contract 
 itself; viz., in the case of a debt, on payment of the prin- 
 cipal, interest, and costs; or in that of any other contract, 
 on reimbursement of the actual damage sustained. 
 
 An authority of a similar kind has been now conferred 
 on courts of law by two statutes, the first of which 
 applies to penalties for non-performance of covenants, and 
 the second to those of non-payment of money, (m) 1 The 
 effect of these statutes has been to diminish the frequency 
 
 (m) 8 & 9 Wm. 3, c. 11, s. 8 ; 4 & 5 Ann. c. 16, SB. 12, 13 ; 1 Selw. 
 N. P. 542, 569, 588. 
 
 1 Carter 135. 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. Ch. 526 ; s. c. Skinner v. White, 17 John. 357. See Mso, 
 White v. Dingley, 4 Mass. 433 ; Pierce v. Fuller, 8 Id. 223 ; Tingley v. 
 Cutler, 7 Conn. 291 ; Slosson v. Beadle, 7 Johns. 72 ; Myers v. Hay, 3 
 Missouri 98 ; Gammon v. Howe, 14 Maine 250. Where a stipulation is 
 designated in the contract as a penalty, how far a Court will consider a 
 sum stipulated as liquidated damages, see Taylor v. Sandiford, 7 Wheat. 
 19 ; Curry v. Larer, 7 Penn. St. 470; Streeper v. Williams, 48 Id. 450; 
 Shreve v. Brereton, 51 Id. 175. See on this subject the notes to Peachy 
 v. Somerset, 2 Lead. Cas. Eq. 895 ; where the American 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 ; Martin v. Melville, 3 Stockt. 222 ; Thompson v. Hudson, 
 L. R. 2 Eq. 612. See, however, Sterne r. Beck, 1 De G., J. & Sm. 598. 
 
 1 These or similar statues are in force generally in the United States.
 
 248 ADAMS'S DOCTEINE OF EQUITY. 
 
 of equitable interference. But they do not affect the au- 
 thority to interfere. The jurisdiction is not limited to the 
 case of bonds or of instruments which in terms impose a 
 penalty ; but extends to all agreements where a stipula- 
 tion 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 substitute a new 
 agreement. The mere use, however, of the words " liqui- 
 dated damages," will not of itself decide the question ; 
 but it depends on the substantial meaning of the contract. 1 
 If, for example, the payment of a smaller sum is secured 
 by a larger, or if there be a series of covenants of varying 
 importance, and the same specific sum is made payable in 
 
 1 It is stated by Judge Hare, in his lucid and able notes to Peachy v. 
 Somerset, 2 Lead. Gas. Eq., Pt. ii., 472, upon a full examination of the cases, 
 that the result " seems to be, that equity will not permit a recovery 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 in- 
 jury 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 be settled beforehand, by special 
 
 agreement But even when the subject-matter is one which 
 
 admits of. 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 certain, in case of default, 
 is intended as a penalty, or as a liquidation of the damages. This is ob- 
 viously 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 extrin- 
 sic circumstances." See also a full discussion of the law on this subject 
 in Cotheal v. Talmage, 5 Selden 551.
 
 RELIEF AGAINST PENALTIES. 249 
 
 respect of each, the stipulated payment will be held a penal 
 one, notwithstanding that it may be otherwise named in 
 the contract, (w) The distinction 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 mortgage, 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 p^.-. ^-i 
 may be relieved against in equity. But on the 
 other hand, if the larger rate be originally reserved, with 
 an agreement for reduction on punctual payment, the con- 
 dition for such punctual payment is part of the contract, 
 and relief cannot be given if it is not fulfilled, (o) 1 
 
 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. 2 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 equivalent 
 for punctuality ; but its exercise is established by pre- 
 
 (n) Rolfe v. Peterson, 2 B. P. C. by Toml. 436 ; Kemble v. Farren, 6 
 Bing. 141 ; Boys v. Ancell, 5 Bing. N. C. 390 ; 3 Jarm. Byth. 325-336. 
 (o) Nicholls v. Maynard, 3 Atk. 519. 
 
 1 A stipulation in a mortgage, that if it becomes necessary to forclose, a 
 reasonable amount shall be added as attorney's fees, is not in the nature 
 of a penalty and is valid : Nelson v. Everett, 29 Iowa 184 ; Williams v. 
 Meeker, Id. 292. 
 
 2 Or breach of conditions subsequent : Smith v. Jewett, 40 N. II. 530. 
 See, also, Warner v. Bennett, 31 Conn. 468 ; Robinson c. Loomis, 51 Pcnn. 
 St. 78 ; Mahoning Co. Bank, 32 Id. 158.
 
 250 ADAMS'S DOCTRINE OF EQUITY. 
 
 cedent, and has been for the last century recognised by 
 an express statute, defining the circumstances to which 
 it shall apply, and conferring a similar jurisdiction on 
 Courts of law.(jt?) 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 
 non-payment of money, and perhaps in other cases also, 
 if a special equity be raised on the ground of unavoidable 
 ignorance or accident; but it will not be granted without 
 such special equity, in respect of covenants for repairing, 
 insuring, or doing any specific act, where the compensa- 
 tion must be estimated in damages.^) 
 
 (p) 4 Geo. 2, c. 28 ; Adams on Ejectment 122. 
 
 (q) Hill v. Barclay, 18 Ves. 56 ; Reynolds v. Pitt, 19 Id. 134 ; Ex parte 
 Vaughan, T. & R. 434 ; Green v. Bridges, 4 Sim. 96 ; White v. Warner, 2 
 Meriv. 459 ; Elliott v. Turner, 13 Sim. 477.
 
 PERFECT AND IMPERFECT MORTGAGES. 251 
 
 *CH AFTER III. pllO] 
 
 OF MORTGAGES, BOTH PERFECT AND IMPERFECT. 
 
 THE equity for relief against penalties applies most ex- 
 tensively 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 noticed as im- 
 perfect mortgages. But a regular mortgage is in the form 
 which has been just mentioned, and may be defined as a 
 "security for a debt, created by conveyance of the legal 
 ownership in property, either to the entire extent of the 
 mortgagor's estate, or for a partial estate carved out of it, 
 with a proviso that, on payment at a specified time the 
 conveyance shall be void or the mortgagee shall reconvey." 1 
 
 1 It is perfectly well settled that a mortgage is a mere security for a 
 debt : Wilson v. Troup, 2 Cow. 195 ; Simpson v. Ammons, 1 Binney 177 ; 
 Ragland v. Justices, 10 Geo. 65 ; 4 Kent's Com. 160 ; Williams on Real 
 Prop. 391 ; note to Thornborough v. Baker, 2 Lead. Cas. Eq. 857. And 
 from this doctrine several consequences arise. 
 
 First. The interest of the mortgagee in fee, or for a smaller estate, is 
 personalty, and his executor, and not the heir, is entitled to the money 
 secured by the mortgage : Thornborough v. Baker, supra. 
 
 Second. It is not necessary that there should be any independent evi- 
 dence of the debt, or any personal or collateral security for the same. The 
 mortgage alone is sufficient : Mitchell v. Burnham, 44 Maine 299. See 
 also Chappell v. Allen, 38 Mo. 213 ; Bank v. Anderson, 14 Iowa 544. 
 
 Third. The payment or discharge of the mortgage debt revests the estate
 
 22 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. 
 
 at law in the mortgagor without the necessity of a reconveyance : 4 Kent's 
 Com. 194, and notes ; Williams on Real Prop. 391 ; McNair . Picotte, 33 
 Mo. 57; Large v. Van Doren, 1 McCart. 211; Gray v. Jenks, 3 Mason 
 526 5 Martin c. Mowlin, 2 Burrow 978. Though see Cross t>. Robinson, 21 
 Conn. 379. It must be done before condition broken : Stewart v. Crosby, 
 50 Maine 130 ; Grover . Flye, 5 Allen 543. 
 
 Fourth. The transfer or extinguishment of the debt will operate as a 
 transfer or extinguishment of the mortgage : Hawkins v. King, 2 A. K. 
 Marsh. 109 ; Barnes . Lee, 1 Bibb 526 ; Ackla v. Ackla, 6 Penn. St. 228 ; 
 Wallis c. Long, 16 Ala. 738 ; Smith v. Smith, 15 N. H. 55 ; Moore v. Bea- 
 som, 44 Id. 215; Armitage v. Wickliffe, 12 B. Mon. 488; Marriott v. 
 Handy, 8 Gill 31 ; Hadloek v. Bulfinch, 31 Maine 246, 308 ; Wilson v. 
 Drumrite, 21 Mo. 325 ; Blodgett v. Wadhams, Hill & Denio 65 ; Ledyard 
 . Chapin, 6 Ind. 320; Keyes v. Wood, 21 Vt/332 ; Mapps v. Sharpe, 32 
 Id. 13 ; Dearborn v. Taylor, 18 N. H. 153 ; Potter v. Stevens, 40 Mo. 229; 
 Moore . Cornell, 68 Penn. St. 320 ; Hyman . Devereux, 63 N. C. 624 ; 
 though see Dwinel . Perley, 32 Maine 197 ; Chappell . Allen, 38 Mo. 
 213 ; Bankc. Anderson, 14 Iowa 544; Olds v. Cummings, 31 111. 188. An 
 assignment of the mortgage without the debt is a nullity : Polhemus v. 
 Trainer, 30 Cal. 685 -, Merritt v. Bartholick, 36 N. Y. 44. 
 
 Fifth. But the fact that a simple contract debt is barred by the Statute 
 of Limitations, will not prevent recovery upon a mortgage given to secure 
 it : Elkins v. Edwards, 8 Geo. 326 ; Thayer . Mann, 19 Pick. 535 ; Bush . 
 Cooper, 26 Miss. 599 ; Whipple . Barnes, 21 Wis. 327. Though in Cali- 
 fornia, under the statute in that state, the rule is otherwise : Lord . Mor- 
 ris, 18 Cal. 482. 
 
 Sixth. It has been held that a tender of the debt on or after the day upon 
 which it falls due, discharges the lien of the mortgage : Kortrightr. Cady, 
 21 N. Y. 343 ; Caruthers v. Humphreys, 12 Mich. 270 ; Van Husen v. 
 Kanouse, 13 Mich. 303. But it may well be doubted whether these decisions 
 are not opposed to the policy of the recording acts, and whether the courts 
 in other .states will not hold a different doctrine. 
 
 Seventh. A mortgage being a mere security for a debt, it may be given 
 to secure future advances, as well as an existing indebtedness : Shirras v. 
 Craig, 7 Cranch 34 ; Johnson . Richardson, 38 N. H. 353 ; Seymour v. 
 Darrow, 31 A r t. 122. And see, moreover, Rowan v. Sharpe's Rifle Co., 29 
 Conn. 282 ; Thomas . Kelsey, 30 Barb. 268 ; Bell v. Fleming, 1 Beasley 
 13-490 ; Robinson v. Williams, 22 N. Y. 380 ; Ladue v. The Railroad Co., 
 13 Mich. 380 ; Joslyn v. Wyman, 5 Allen 62 ; 4 Kent's Com. 175 ; Ward
 
 PERFECT AND IMPERFECT MORTGAGES. 253 
 
 his money according to the proviso, and may thus avoid 
 the conveyance at law ; or if the proviso is not for an 
 
 r. Cooke, 2 Green (N. J.) 93 ; Tally r. Harloe, 35 Cal. 302 ; Goddard v. 
 Lawyer, 9 Allen 78 ; Collins r. His Creditors, 18 La. Ann. 235 ; Foster r. 
 Reynolds, 38 Mo. 553 ; Philadelphia, Wilmington & Baltimore R. R. v. 
 Woelpper, 64 Penn. St. 366. And the general rule appears to be that such 
 advances, if made in pursuance of the original agreement, will be pro- 
 tected against intervening encumbrancers and purchasers with notice 
 of the agreement, otherwise not : see Farnum . Bennett, 21 N. J. 87 ; 
 see also, Summers v. Roos, 42 Miss. 749 ; D'Meza v. Generis, 22 La. Ann. 
 285. In Hopkinson v. Rolt, 9 House Lds. Cas. 514, however, it was held 
 that where there is a first mortgage to secure future advances, and a second 
 mortgage is afterwards given of which the first mortgagee has notice, all 
 advances made after such notice will be postponed to the second mortgage ; 
 and see The Bank of Montgomery County's Appeal, 36 Penn. St. 170. 
 This decision overruled the early case of Gordon r. Graham, 2 Eq. Cas. 
 Abr. 598, which was, however, erroneously reported, the decision being in 
 fact the other way. But the doctrine in Gordon r. Graham, as reported, 
 was followed in Wilson v. Russell, 13 Md. 495. How far it is essential 
 that the terms of the agreement for future advances should appear on the 
 face of the mortgage is not quite clear : 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 r. Tappin, 2 Sandf. Ch. 78 5 Cadwalader v. Mont- 
 gomery, 3 Am. Law Reg. 169 ; s. c. Moroney's Appeal, 12 Har. 372; Mil- 
 ler r. Lockwood, 32 N. Y. 293. In some of the states, bond debts may be 
 tacked to a mortgage as against heirs and devisees, but not as against en- 
 cumbrancers. See note to Marsh v. Lee, 1 Lead. Cas. Eq. 494 ; 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 a*t 
 the time the mortgagees assert their title : Fairbanks v. Bloomfield, 5 Duer 
 434. See also, Chapin v. Cram, 40 Maine 561 ; Hamilton v. Rogers, 8 Md. 
 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 ad- 
 ditions in the mortgagee, without some further act by the mortgagor. See, 
 in this connection, Carpenter v. Simmons, 1 Rob. (N. Y.) 360; Barnard r. 
 Moore, 8 Allen (Mass.) 273 ; Speer v. Skinner, 35 111. 282. In regard to 
 mortgages of personal property to be acquired in future, a very clear state- 
 ment of the law upon the subject will be found in the opinion of the chan- 
 cellor, in Holroyd v. Marshall, 9 Jur. N. S. 213 ; 10 H. L. Cas. 191. See 
 also, Smithurst v. Edmunds, 1 McCart. 413. As to mortgages by railroads
 
 254 ADAMS'S DOCTRINE OF EQUITY. 
 
 avoidance of the estate, but for a reconveyance to be made 
 by the mortgagee, he may call on the mortgagee to re- 
 convey accordingly, and on his refusal may file a bill for 
 specific performance. After the day of redemption is 
 passed, a special equity arises for redemption. The ex- 
 press remedy under the proviso is gone; the mortgagee's 
 estate is absolute at law; and the mortgagor's right, to the 
 extent to which it was originally transferred to the mort- 
 
 f*n 11 ' extinguished. If he has 
 
 mortgaged his entire estate, e. c/., if he has mort- 
 gaged 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 expectant thereon. 1 
 
 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 for- 
 feiture, praying for an account and redemption of the 
 estate, and insisting on a reconveyance by the mortgagee 
 on repayment of the principal and interest due, together 
 with all costs in equity or at law properly incurred by 
 the mortgagee in protecting his right, (b) 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 improvements, unless 
 
 (6) Dryden v. Frost, 3 M. & C. 670 5 Morley v. Bridges, 2 Coll. 621. 
 
 of subsequently acquired property, see Morrill v. Noyes, 56 Maine 458 ; 
 Pierce v. Milwaukee R. R. Co., 24 Wis. 551 ; Philadelphia, Wilmington & 
 Baltimore Railroad Co. v. Woelpper, 64 Penn. St. 366. 
 1 Alden o. Garver, 32 111. 32.
 
 PERFECT AND IMPERFECT MORTGAGES. 255 
 
 they were made by the mortgagor's consent, or acquiesced 
 in by him after notice, (c} 1 ' 
 
 If the transaction be not in fact a loan, but a bond fide 
 sale, with power to repurchase, there is no equity to in- 
 terfere.^) A clause of redemption, however, is primd 
 facie evidence of a loan. And even if on the face of the 
 conveyance the transaction is termed a purchase, yet its 
 true character may be proved by parol evidence, or by the 
 subsequent conduct of the parties themselves, e. g., if the 
 alleged vendee, instead of entering into receipt of the 
 rents, demands and receives interest for his purchase- 
 money.^) 2 
 
 (c) Sandon v. Hooper, 6 Bea, 246 ; 14 L. J. 120. 
 
 (d) Davis v. Thomas, 1 R. & M. 506 ; Williams v. Owen, 10 Sim. 386 ; 
 Reversed, 12 L. J. 207 ; Bulwer v. Astley, 1 Ph. 422 ; Belcher v. Varden, 
 2 Coll. 162 ; [Ford v. Irwin, 18 Cal. 117.] 
 
 (e) Maxwells. Mountacute, Prec. Chanc. 526. 
 
 1 See post, note to page 118. 
 
 2 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 : Kenton v. Vandergrift, 42 Penn. St. 339 ; Taylor v. Luther, 2 
 Sum. 228; Morris v. Nixon, 1 How. U. S. 118; Slee v. The Manhattan 
 Company, 1 Paige 48 ; Whittick v. Kane, 1 Id. 202 ; Van Buren e. Olm- 
 steadj 5 Id. 1 ; Strong v. Stewart, 4 John. Ch. 167 ; Ross v. Norvell, 1 
 Wash. (.Va.) 14 ; Kunkle v. Wolfersberger, 6 Watts 126 ; Reitenbaugh v. 
 Ludwick, 31 Penn. St. 131 ; Wilson v. Shoenberger, Id. 295; (though see 
 Alderson u. White, 2 De G. & J. 97) ; Todd v. Campbell, 32 Penn. St. 
 250; Kellum . Smith, 33 Id. 158; Wing v. Cooper, 37 Vermont 169 ; 
 Clark v. Conceit, 3 Green (N. J.) 358 ; McNeill v. Narsworthy, 39 Ala. 
 156 ; Gay v. Hamilton, 33 Cal. 686 ; Shays v. Norton, 48 111. 100 ; Turner 
 v. Kerr, 44 Mo. 429 ; Phillips v. Hulsizer, 20 N. J. Eq. 308 ; Whiting v. 
 Eichelberger, 16 Iowa 422 ; Halo v. Shiek, 57 Penn. St. 320 ; Parmalee v. 
 Lawrence, 44 111. 405 ; Odenbaugh v. Bradford, 67 Penn. St. 96 ; Sweet v. 
 Parker, 22 N. J. Eq. 453 ; Horn v. Keteltas, 46 N. Y. 605 ; Harper's Ap- 
 peal, 64 Penn. St. 315; Keinck v. Price, 4 W. Va. 4; Crane . De Camp, 
 21 N. J. Eq. 414. A court of law will not treat an absolute deed as a 
 mortgage: Farley v. Goocher, 11 Iowa 570; Johnson's Ex'rs. v. Clark, 5
 
 256 ADAMS'S DOCTRINE OF EQUITY. 
 
 If the character of a security is once impressed on the 
 
 Conveyance, it is a rule never departed from, 
 
 a that no contemporaneous stipulation can clog the 
 
 Ark. 321 ; McDonald v^ McLeod, 1 Ired. Eq. 221 ; Randall v. Phillips, 3 
 Mason 378 ; McLaurin v. Wright, 2 Ired. Ch. 94 ; Hudson v. Isbell, 5 Stew. 
 & Port. 67 ; Murphy v. Trigg, 1 Monr. 72 ; Lewis v. Robards, 3 Id. 406 ; 
 Blair v. Bass, 4 Blackf. 539 ; Delahay v. McConnel, 4 Scam. 156 ; Sellers 
 v. Stalcup, 7 Ired. Eq. 13; Hinson v. Partee, 11 Humph. 387 ; Bank of 
 Westminster v. Whyte, 1 Md. Ch. 536 ; Conner v. Banks, 18 Ala. 42 ; 
 Crews v. Threadgill, 35 Id. 334 ; Murphy v. Calley, 1 Allen 107 ; Steel v. 
 Steel, 4 Id. 417 ; Vanderhaize v. Hughes, 2 Beas. 244 ; Lockerson v. Still- 
 well, Id. 357 ; Artz v. Grove, 21 Md. 456 ; Rowan v. The Sharpe Rifle 
 Co., 31 Conn. 1; Lee v. Evans, 8 Cal. 424; Hovey v. Holcomb, 11 
 111. 660; Carter v. Carter, 5 Texas 93; Russell's Appeal, 15 Penn. St. 
 322 ; Bragg- v. Massie's Ex'rs., 38 Ala. 89. But see Thomas v. McCor- 
 mack, 9 Dana 108 ; Streator v. Jones, 1 Mur. 449; Thompson v. Patton, 
 5 Litt. 74 ; Bryant v. Crosby, 36 Maine 562 ; Brown v. Carson, 1 Basbee 
 Eq. 283 ; Mann's Ex'rs. v. Falcon, 25 Texas 271 ; Cunningham v. Hawkins, 
 27 Cal. 603. But the proof in such case must be clear, strong, and satis- 
 factory, especially against an answer denying the facts : English v. Lane, 
 1 Porter 328 ; Conwell v. Evill, 4 Blackf. 67 ; Scott v. Britton, 2 Yerg. 215 ; 
 Fay v. Eastin, 2 Porter 414 ; Lane v. Dickerson, 10 Yerg. 373 ; Elliott v. 
 Maxwell, 7 Ired. Eq. 246 ; Chapman v. Hughes, 14 Ala. 218 ; Arnold v. 
 Mattison, 3 Rich. Eq. 153 ; Sweet v. Mitchell, 15 Wis. 641 ; Tillson v. 
 Moulton, 23 111. 648 ; Kent v. Lasley, 24 Wis. 654 ; McGinity v. McGinity, 
 63 Penn. St. 38-. See the American note to Thornbrough v. Baker, 2 
 Lead. Gas. Eq., p. 857, 3d Am. ed. ; and to Woollam v. Hearn, Id., page 
 404, where the question of the admissibility of parol evidence, in such 
 case, is discussed at large, and placed upon its true ground, the establish- 
 ment 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 : Pearson v. Seary, 35 Ala. 612 ; Pen- 
 soneau v. Pulliam, 47 111. 58 ; Sharkey v. Sharkey, 47 Mo. 543 ; Robinson 
 v. Willoughby, 65 N. C. 520. See also Holton v. Meighen, 15 Minn. 69; 
 Fiedler v. Darrin, 59 Barb. (N. Y.) 651. 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 personal security is taken, will not dis-
 
 PERFECT AND IMPERFECT MORTGAGES. 257 
 
 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 mortgage 
 always a mortgage :" and stipulations repugnant to this 
 maxim have been frequently set aside. 1 Such, for ex- 
 prove it : Russell 0. Southard, 12 How. U. S. 139 ; McLaughlin v. Shep- 
 herd, 32 Maine 143 ; Turnipseed v. Cunningham, 16 Ala. 501 ; Poindexter 
 v. McCannon, 1 Dev. Eq. 377 ; Whitney v. French, 25 Verm. 663:; Cross v. 
 Hepner, 7 Ind. 359 ; Kerr v. Gilmore, 6 Watts 405 ; Brown . Nickle, 6 
 Barr 390 5 Pearson v. Seay, 38 Ala. 643 ; Anthony v. Anthony, 23 Ark. 
 479 ; Stephenson v. Haines, 16 Ohio St. 478 ; Snyder . Griswold, 37 111. 
 216 ; Tibbs v. Morris, 44 Barb. (N. Y.) 138 ; Trucks v. Lindsey, 18 Iowa 
 504 ; Sears . Dixon, 33 Cal. 326 ; Carpenter v. Snelling, 97 Mass. 452 ; 
 Tabor v. Hamlin, Id. 489. But a conditional sale will unquestionably be 
 supported -where the intention of the parties is clear : Conway v. Alex- 
 ander, 7 Cranch 218 ; cases cited, note to Thornbrough . Baker, ut supr., 
 p. 634 ; Forkner v. Stuart, 6 Gratt. 197 ; Yasser v. Yasser, 23 Miss. (Cushm.) 
 378 ; Gait v. Jackson, 9 Geo. 151 ; 4 Kent 144 ; Pitts v. Cable, 44 111. 103. 
 A deed conveying land in lieu of a debt cannot be construed a mortgage : 
 Kearney v. Macomb, 1 Green (N. J.) 189. No instrument can be con- 
 strued a mortgage, in which there does not exist both, the right to foreclose 
 and the right to redeem : Chaires v. Brady, 10 Florida 133. The test of the 
 distinction is said to be whether the relation of debtor and creditor in fact 
 subsisted between the parties : see Kent 143, note. Or, to borrow the 
 distinction laid down in Marvin v. Titsworth, 10 Wis. 320, if there is a 
 conveyance directly to the creditor, and the trust is to be executed by 
 him, it is a mortgage ; if to a third party, who acts as the agent of both 
 the debtor and the creditor, it is not a mortgage, but a trust. As to which, 
 see infra, 126 ; see also Slowey v. McMurray, 27 Missouri 119 5 Ilickox v. 
 Lowe, 10 Cal. 197. 
 
 1 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; 
 Wheeland v. Swartz, 1 Yeates 579 ; Johnston v. Gray, 16 S. & R. 361 ; 
 Bloodgood v. Zeily, 2 Cai. Ca. 124 ; Stoever v. Stoever, 9 S. & R. 434 ; 
 Wharf v. Howell, 5 Binn. 499 ; Cooper v. Whitney, 3 Hill 95 ; Palmer v. 
 Guernsey, 7 Wend. 248; Nugent v. Riley, 1 Mete. 117; Dey v. Dunham, 
 2 John. Ch. 182 ; 15 John. 555 ; Hiester v. Madeira, 3 W. & S. 384. See 
 also Rogan v. Walker, 1 Wis. 527; Knowlton . Walker, 13 Id. 264; 
 Woods v. Wallace, 22 Penn. St. 171 ; Locke v. Palmer, 26 Ala. 312. Al- 
 though in the writing creating an equitable mortgage the time of redemp- 
 17
 
 258 ADAMS'S DOCTRINE OF EQUITY. 
 
 ample, are agreements for restricting the right of redemp- 
 tion to a limited time, (/) for restricting it to a particular 
 line of heirs, (gY for entitling the mortgagee after default 
 to purchase at a specific sum, (h) for converting arrears of 
 interest into principal, so as in effect to give compound 
 interest, (') for allowing the mortgagee a percentage as 
 receiver, beyond interest on the money advanced, (Jc) or 
 for allowing him, when in possession under a West Indian 
 mortgage, a like percentage as consignee of the produce. 
 There is a different, and apparently exceptional, rule 
 in favor of a West Indian mortgage out of possession. 
 
 (f) Newcomb v. Bonham, 1 Vern. 7. 
 
 (g) Howard . Harris, 2 Ch. Ca. 147. 
 (h) Willett . Winnell, 1 Vern. 488. 
 
 (t) Blackburn v. Warwick, 2 Y. & C. 92. 
 
 (k) Davis v. Dendy, 3 Madd. 170; Langstaffe v. Fenwick, 10 Ves. 405. 
 
 tion is limited, yet such limitation has no effect on the right to redeem. 
 Once a mortgage always a mortgage : Stover v. Bounds, 1 Ohio St. 107. 
 See also note to Thornbrough v. Baker, 2 Lead. Gas. Eq, 857 5 Clark v. 
 Condit, 3 Green (N. J.) 358. 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 unconscientious advantage : Russell v. Southard, 
 12 How. U. S. 139 ; Platt v. McClure, 3 Wood. & M. 151 ; note to Thorn- 
 brough v. Baker, ut sup. But if perfectly fair it will be sustained: Sheckell 
 v. Hopkins, 2 Md. Ch. 89 ; McKinstry v. Conly, 12 Ala. 678 ; Torill v. 
 Skinner, 1 Pick. 213 ; Green v. Butler, 26 Cal. 595 ; Decker v. Hall, 1 Edm. 
 (N. Y.) Sel. Cas. 279. Such a purchase will generally create a merger of 
 the mortgage : Jenning's Lessee v. Wood, 20 Ohio 261 ; Bailey v. Richard- 
 son, 9 Hare 734 ; though not necessarily : Polk v. Reynolds, 31 Md. 106. 
 But this may be prevented by taking the conveyance of the equity of re- 
 demption in the name of a trustee, with a declaration of the intention to 
 that effect : Bailey v. Richardson, 9 Hare 734. And equity will in general 
 relieve against such merger, if necessary : Slocum v. Catlin, 22 Verm. 137. 
 A decree of foreclosure does not merge the lien of the mortgagee ; that 
 continues until the debt is paid or discharged : Hendershott v. Ping, 24 
 Iowa 134. 
 
 1 See Johnston v. Gray, 16 S. & R. 361 ; Slowey v. McMurray, 27 Miss. 
 113.
 
 PERFECT AND IMPERFECT MORTGAGES. 259 
 
 And lie is allowed to insist on being consignee of the 
 produce, with the usual percentage on the consignments 
 made. (7) 
 
 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, ps.-. -, q-i 
 shall bring into Court the principal, interest, and 
 costs, the Court of law may discharge him from the mort- 
 gage, and may compel the mortgagee to reconvey. By 
 the same statute it is enacted, that where a bill of fore- 
 closure is filed, the Court of equity may, on the defend- 
 ant's application, and on his admitting the plaintiff's 
 title, make such order or decree before the hearing as 
 it mignt have made if the suit had been brought to a 
 hearing. But the act does not apply to cases where the 
 right of redemption or the sums chargeable are in contro- 
 versy, (m) 
 
 The mortgagor's right to redeem is technically called 
 his " Equity of Redemption," and is treated as a continu- 
 
 (0 Bunbury v. Winter, 1 Jac. & W. 255 ; Leith v. Irvine, 1 M. & K. 277 ; 
 Falkner v. Daniel, 3 Hare 218. 
 
 (m) 1 Geo. 2, c. 20 ; Bastard v. Clarke, 7 Ves. 489; Praed v. Hull, 1 S. 
 & S. 331 ; Piggin v. Cheatham, 2 Hare 80 ; Reeves v. Glastonbury Canal 
 Company, 14 Sim. 351.
 
 260 ADAMS'S DOCTRINE OF EQUITY. 
 
 ance of his old estate, subject to the mortgagee's pledge 
 for repayment. 1 
 
 It therefore remains subject to the ordinary incidents of 
 
 1 Contracts made with the mortgagor to lessen or embarrass the right of 
 redemption, are regarded with jealousy : Holridge v. Gillespie, 2 John. Ch. 
 34. And a mortgagee before foreclosure can do no act to bind the mort- 
 gagor when he offers to redeem : Wilson v. Troup, 7 Johns. Ch. 25. But 
 a contract not to prefer a bill to redeem within a limited time is good. 
 Such a contract, however, with a further stipulation that at the expiration 
 of the time stipulated, there should be a foreclosure, unless the debts were 
 paid, is void, or at least voidable: Daniels v. Mowry, 1 R. I. 151. See, 
 however, Stover v. Bounds, 1 Ohio St. 197. A Court of equity will re- 
 strain a mortgagee from proceeding at law to sell the equity of redemption, 
 or put him to his election either to proceed directly on his mortgage or to 
 seek other property (where the rights of creditors do not interfere), or the 
 person of the debtor for the satisfaction of the debt : Tice v. Annin, 2 
 John. Ch. 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 mort- 
 gagor, or claims a subsisting interest under it : Grant v. Duane, 9 John. 
 591 ; Welch v. Beers, 8 Allen (Mass.) 151 ; Gage v. Brewster, 31 N. Y. 
 218. 
 
 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. 422; 
 Wilkins v. Sears, 4 Monr. 347 ; Douglas v. Sherman, 2 Paige 358 ; Skinner 
 v. Miller, 5 Litt. 85 ; Bell v. Mayor of New York, 10 Paige 49 ; Beach v. 
 Cooke, 28 N. Y. 508 ; Merriam v. Barton, 14 Verm. 501 , Sheldon v. 
 Bird, 2 Root 509 ; Craik v. Clark, 2 Hay. 22 ; Farrell v. Parlier, 50 111. 
 274. By judgment creditors, see Hitt v. Holliday, 2 Litt. 332 ; Dabney v. 
 Green, 4 Hen. & Munf. 101 ; Bigelow v. Willson, 1 Pickering 485j and by 
 subsequent encumbrancers, see Burnet v. Denniston, 5 John. Ch. 35 ; 
 Cooper 0. Martin, 1 Dana 25 5 Brown v. Worcester Bank, 8 Mete. 47 ; Watt 
 f. Watt, 2 Barb. Ch. 371 ; McHenry v. Cooper, 27 Iowa 137 ; Johnson v. 
 Harmon, 19 Id. 56. See also, Pearce v. Morris, L. R. 8 Eq. 217 ; and 
 the right of a subsequent mortgagee to pay off a debt secured by a prior 
 mortgage, is not affected by an agreement by the parties to such mortgage 
 for a higher rate of interest than that specified in the mortgage : Gardner 
 v. Emerson, 40 111. 296. 
 
 He who redeems must pay the whole debt : Adams . Brown, 7 Gush. 
 220 ; Knowles v. Rablin, 20 Iowa 101 ; though the debt secured, or part 
 of it, has become separated from the mortgage by becoming the property 
 of a different person : Johnson v. Candagc, 31 Maine 28 ; or has become 
 barred by the statute : Balch v. Onion, 4 Cush. 559.
 
 PERFECT AND IMPERFECT MORTGAGES. 261 
 
 the estate ; it passes in the same course of devolution ; it 
 may be devised, settled, or conveyed in the same way ; 
 or may be transferred to a new claimant by mere length 
 of enjoyment, (n) And the parties making .title by these 
 or any other means to the mortgagor's estate, have the 
 same right with himself to sue for redemption. If there 
 be several persons all claiming under the mortgagor, they 
 will be entitled to redeem successively according to their 
 priorities. Where the mortgagor's estate has 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 accord- 
 ance 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 ; r-%-, -, * -, 
 but if the mortgage be for a term only, so that a 
 reversion is left which may escheat at law, the incidental 
 equity will pass with it. (00) 
 
 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. 1 The ordi- 
 
 (n) Cholmondely . Clinton, 4 Bligh, 0. S. 1 ; 3 & 4 Wm. 4, c 27, s. 24. 
 
 (o) Supra. 
 
 (00) Burgess . Wheate, 1 Eden 177 ; Downe . 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 
 . Roxborough, 6 Mass. 50 ; Hitchcock v. Harrington, 6 John. 295 ; White 
 0. Whitney, 3 Met. 81 ; Norwich v. Hubbard, 22 Conn. 587 ; Whitney v. 
 French, 25 Verm. 663; Johnson v. Brown, 11 Foster 405; Carpenter v. 
 Bowen, 42 Miss. 28 ; Woods v. Hilderbrand, 46 Mo. 284. A conveyance
 
 262 ADAMS'S DOCTRINE OF EQUITY. 
 
 nary practice now is, that he should be so left in possession, 
 and that the mortgagee should receive regular payments 
 
 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. A 
 parol assignment of a mortgage, though endorsed on the mortgage deed, 
 and delivered and recorded with it, will not support a writ of entry by 
 the assignee to foreclose the mortgage : Adams v. Parker, 12 Gray (Mass.) 
 53. 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 mort- 
 gage : Myers v. White, 1 Rawle 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: Runyan v, Mer- 
 sereau, 11 John. 534; Astor v. Miller, 2 Paige 68. See Hughes i\ Ed- 
 wards, 9 Wheat. 499 ; Tucker v. Keeler, 4 Verm. 161 ; Northampton Paper 
 Mills v. Ames, 8 Metcalf 1 ; Smith v. Moore, 11 N. H. 55 ; Frothingham v. 
 McKusick, 24 Maine 403 ; Covell v, Dolloff, 31 Id. 104 ; Henshaw . 
 Wells, 9 Humph. 568 ; 4 Kent Com. 160. A mortgagee has no title, only 
 a lien : Jackson v. Lodge, 36 Cal. 28. Fletcher v. Holmes, 32 Ind. 497 ; 
 Williams v. Beard, 1 S. C. 309 ; compare Mack v. Wetzlar, 39 Cal. 247. 
 The contrary doctrine is held in Tennessee : Carter v. Taylor, 3 Head 30. 
 In most of the United States, an equity of redemption is subject to dower, 
 and liable to sale on execution. See 4 Kent Com. 161 ; though see Otley 
 v. Haviland, 36 Miss. 19 ; Decker v. Hall, 1 Edm. (N. Y.) Sel. Cas. 279. See 
 also, Hitchcock v. Merrick, 18 Wis. 357 ; Williams v. Townshend, 31 N. Y. 41 1. 
 
 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. 
 McGraw, 4 Comst. 110. See Langdon v. Paul, 22 Verm. 205 ; though see 
 4 Kent Com. 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 for 
 taxes, it will be considered merely a form of payment, and lie will acquire 
 no greater title than he had before : Frye v. Bank of Illinois, 11 111. 367 ; 
 Ralston v. Hughes, 13 Id. 469. The payment of taxes by the mortgagor 
 is to be credited in satisfaction of interest and not of principal : Cook v. 
 Smith, 1 Vroom (N. J.) 387. 
 
 In Maine, where mortgaged lands are taxed in the name of the mort- 
 gagee, no title passes on a sale therefor : Coombs . 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
 
 PERFECT AND IMPERFECT MORTGAGES. 263 
 
 of interest, and should be entitled to call for his princi- 
 pal at six months' notice. If there be an express agree- 
 ment that the mortgagor shall have possession 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 con- 
 sidered in equity to hold as owner, and is entitled to the 
 rents in that character. He cannot, therefore, be made 
 accountable for bygone rents, (p) 1 But if the security be 
 insufficient he may be restrained, at the instance of the 
 mortgagee, from cutting timber on the mortgaged pre- 
 mises.^) If the possession of the mortgagor continue 
 for twenty years, the mortgagee may under the circum- 
 stances 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 ex- 
 pressly declared, that a mortgagee out of possession shall 
 not proceed, either at law or in equity, to recover the 
 land, except within twenty years after he last had posses- 
 
 (p) Ex parte Wilson, 2 Ves. & B. 252. 
 (q) King v. Smith, 2 Hare 239. 
 
 under the judgment in ejectment : Litchfield v. Ready, 5 Exch. 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 
 . Ames, 8 Met. 1. 
 
 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 re- 
 strain him, on application of the first mortgagee, even after the filing of a 
 bill for foreclosure: Best v. Schermier, 2 Halst. Ch. 154.
 
 264 ADAMS'S DOCTRINE OF EQUITY. 
 
 F*l 1 51 ' or a ^ er ^ e ^ as ^ P a y men * f an 7 principal 
 or interest, (r) 1 The same principle which treats 
 the mortgagor's equity as the actual ownership, neces- 
 sarily involves the conclusion, that the mortgagee's legal 
 estate is e converse 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 
 
 (r) Christophers v. Sparke, 2 J. & W. 223 ; 3 & 4 Wm. 4, c. 27, ss. 2, 3 ; 
 7 Wm. 4 & 1 Viet. c. 28 ; 3 & 4 Wm. 4, c. 42, s. 3. 
 
 1 The general rule is, that there may be redemption within twenty 
 years ; but upon equitable circumstances it may be allowed after a much 
 longer time : Ross v. Norwell, 1 Wash. (Va.) 19. The possession to bar the 
 equity of redemption must be actual, quiet and uninterrupted possession for 
 twenty years, or a period of time sufficient to toll the right of entry at law : 
 Moore v. Cable, 1 Johns. Ch. 385 ; Demarest v. Wynkoop, 3 Id. 129 ; Slee 
 v. Manhattan Co., 1 Paige 48 ; Fenwick v. Macey, 1 Dana 279 ; Morgan v. 
 Morgan, 10 Geo. 297 ; Cromwell v. Bank of Pittsburgh, 2 Wallace, Jr. 
 569 ; Blithe v. Dwinal, 35 Maine 556. But so long as the mortgagee re- 
 cognises the mortgage in any way, the presumption will not begin to run : 
 Morgan v. Morgan, ut supr. It is not so much the possession, as the na- 
 ture 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 : Richmond v. Aiken, 25 Verm. 324. 
 In a suit by the mortgagor to redeem, the Statute of Limitations will not 
 avail the mortgagee, unless he has been in actual possession of the u land. 
 In Missouri, payment of taxes on wild land is not equivalent to posses- 
 sion : 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 disabili- 
 ties or special circumstances equivalent thereto exist, will bar an equity 
 of redemption : Skinner v. Smith, 1 Day 124; Crittenden v. Brainard, 2 
 Root, 485 ; Richmond v. Aiken, 25 Verm. 324 ; see Robinson 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 satisfaction of 
 the mortgage debt : Boyd v. Harris, 2 Md. Ch. 210 ; Roberts v. Welch, 8 
 Ired. Eq. 287 ; Ayres v. Waite, 10 Cush. 72 ; Cheever v. Perley, 11 Allen 
 584. Otherwise where the possession has been in the mortgagee : Crooker 
 a. Jewell, 31 Maine 306. See Martin v. Jackson, 27 Penn. St. 504.
 
 PERFECT AND IMPERFECT MORTGAGES. 265 
 
 made a trustee by payment of his claim. But nothing 
 short of payment can affect 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, (a) 1 And so long as the mortgage 
 remains undischarged, he is entitled to settle and deal 
 with it as his own, and if his so doing renders the re- 
 demption more expensive, the mortgagor must neverthe- 
 less defray the expense, (t} 
 
 The parties to whom the mortgagee may transfer his 
 interest, or who may otherwise make title to his estate, 
 are of course bound by the same equity as himself; but 
 if his estate has escheated, and redemption is asked 
 against the lord, there appears to be some question 
 whether the equity is binding. It has been contended 
 that there is a difference in this respect between a trust 
 and an equity of redemption, and that although the lord 
 is not bound by a trust, unless he is party or privy to it, 
 yet that he shall be bound by an equity of redemption, 
 whether he were privy or not.(w) 2 The distinction, how- 
 ever, it would probably be difficult to sustain. 
 
 (*) Brown v. Lockhart, 10 Sim. 421 ; Richards . Platel, Cr. & P. 79 ; 
 Postlethwaite t?. Blythe, 2 Sw. 256. 
 
 (0 Wetherell e. Collins, 3 Madd. 255 ; Bartle . Wilkins, 8 Sim. 238 ; 
 Barry v. Wrey, 3 Russ. 465 ; Re Marrow, Cr. & P. 142 ; Re Townsend, 2 
 Ph. 348. 
 
 (u) Burgess v. Wheate, 1 Eden 177; Attorney-General . Duke of Leeds, 
 2 M. & K. 343. 
 
 1 The renewal of a note secured by mortgage, is not such a payment as 
 will discharge the mortgage unless so intended: Parkhurst r. Cummings, 
 56 Me. 135 ; nor is it defeated or impaired by partial payments ; the mort- 
 gage lien remains so long as the debt is unpaid : Chase . Abbott, 20 Iowa 
 154. Though see Smith . Smith, 32 111. 198. Money paid to the mortgagee 
 designed at the time to be applied as payment, will operate to extinguish 
 the mortgage to that amount : Champney v. Coope, 32 X. Y. 543. 
 
 2 In most of the United States it is provided by statute that on the
 
 266 ADAMS'S DOCTRINE OF EQUITY. 
 
 f*l 1 fil *The statutory remedy against escheat in the 
 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 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 
 expressly 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 
 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 re- 
 ceipt 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 devisees 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 
 
 () 3 & 4 Wm. 4, c. 23 ; 11 Geo. 4 & 1 Win. 4, c. 60, supra. 
 (w) 1 & 2 Viet. c. 69. 
 
 escheat of land it shall be held upon the same trusts and under the same 
 encumbrances as before : 4 Kent's Com. 425 ; 1 Greenleaf 's Cruise 417 ; 
 note to Hill on Trustees, 4th Am. ed. 78.
 
 PERFECT AND IMPERFECT MORTGAGES. 207 
 
 there are 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 repre- 
 sentative be living or dead, or if known to be dead, it 
 shall not be known who was his heir, or where such 
 mortgagee or any such devisee or heir, or representative 
 shall have died without an heir, or if any such devisee or 
 heir or representative shall neglect or refuse to convey 
 such land for the space of twenty-eight *days next p^ -. ,-- 
 after a proper deed for making such conveyance 
 shall have been tendered for his execution by, or by an 
 agent duly authorized by, any person entitled to require 
 the same, then and in every such case it shall be lawful 
 for the Court of Chancery to direct any person whom such 
 Court may think proper to appoint for that purpose, in 
 the place of the devisee, heir, or representative (whether 
 such devisee, heir, or representative shall or shall not 
 have a beneficial interest in the money paid to the execu- 
 tor 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 
 s therein mentioned in the place of a trustee or the 
 heir of a trustee, and every such conveyance shall be as 
 effectual as if such devisee or heir or representative had 
 executed the same." And it is further enacted, that the 
 provisions of this act shall embrace the same objects as 
 they would have done if they had formed part of the 
 said recited acts, and should not extend to the case 
 of any person dying seised of any land by way of mort- 
 gage other than such as are in such act expressly pro- 
 vided for. (2) 
 
 (x) Re Goddard, 1 M. & K. 25 : Prendergast v. Eyre, LI. & G. 181 ; Ex 
 partc Whitton, 1 K. 279; Green . Holden, 1 Bea. 207.
 
 268 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 pay- 
 ment of the debt.(y) 1 
 
 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 
 l~*l 1 81 * n necessar y *repair, but is not bound to spend 
 more than is strictly necessary. He must account 
 for all the moneys which he in fact has received, or which 
 without wilful default he might have received, but is not 
 bound to take the trouble of making the most of the 
 property. He is entitled to receive any incidental benefit, 
 provided it be of a pecuniary kind, and therefore appli- 
 cable in liquidation of his debt ; but if it be not of that 
 character, as, for example, if it be the presentation to a 
 
 (y) Schoole . Sail, 1 Sch. & L. 176; Drummond v. Pigou, 2 M. & K. 
 168 ; Lockhart v. Hardy, 9 Bea. 349. 
 
 1 The mortgagee may enter or maintain ejectment: Hughes v, Edwards, 
 9 Wheaton 489 ; Dunkley v. Van Buren, 3 John. Ch. 330 ; Callum v. 
 Emanuel, 1 Ala. 22. See also Fluck v. Replogle, 13 Penn. St. 406 ; Smith 
 . Schuler, 12 S. & R. 240 5 Martin v. Jackson, 27 Penn. St. 504 ; Clay v. 
 Wren, 34 Maine 187 ; Wilhelm v. Lee, 2 Md. Ch. 322 ; Brown . Stewart, 
 1 Id. 87; Wheeler v. Bates, 1 Foster (N. H.) 460; Youngman v. Elmira 
 R. R., 65 Penn. St. 278 ; Allen v. Ranson, 44 Mo. 263. 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 be a taking possession: Great Falls Co. v. Worster, 15 N. H. 412.
 
 PERFECT AND IMPERFECT MORTGAGES. 269 
 
 vacant living, the mortgagor must have it as the real 
 owner, (z) l 
 
 (z) Mackensie v. Robinson, 3 Atk. 559. 
 
 1 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 ; Strong v. Blanchard, 4 Allen 538 ; An- 
 thony v. Rogers, 20 Mo. 281 ; and is not, in general, chargeable with interest 
 on rents: Breckenridge 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. See also Smith v. Pilkington, 1 De G., F. 
 & J. 120. 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. 385 ; Bell v. New York, 10 Paige 
 49 ; Rawling v. Stewart, 1 Bland 22. Then to the payment of the prin- 
 cipal : Mahone r. Williams, 39 Ala. 202. But a mortgagee is not entitled 
 to compensation for his trouble in managing the estate, whether the parties 
 have agreed to make such allowance or not : Breckenridge v. Brooks, 2 A. 
 K. Marsh. 339. The only repairs made by the mortgagee, without the 
 mortgagor's consent, which will be allowed' to the mortgagor, are strictly 
 necessary repairs. Beneficial expenditures, if unnecessary, will not be 
 allowed : Quinn v. Brittain, 1 Hoff. Ch. 353 ; Hagthorp v. Hook, 1 Gill & 
 J. 270; Lowndes v. Chisolm, 2 McCord Ch. 455; McConnel v. Holobush, 
 11 111. 61 ; Boston Iron Co. . King, 2 Cush. 400; Hidden . Jordan, 32 
 Cal. 397. Taxes will be allowed: Goodrich v. Friedersdorff, 27 Ind. 308. 
 With few exceptions, it is a general rule in Chancery that a mortgagee in 
 possession is not entitled to any allowance for new improvements erected 
 on the premises : Dougherty v. McColgan, 6 Gill & J. 275. See Boston 
 Iron Co. r. King, ut sup.; Harper's Appeal, 64 Penn. St. 315. Where a 
 mortgagee insures, without contract, and the loss is paid him, it is not to 
 be deducted from his charges for repairs : White . Brown, 2 Cush. 412 ; 
 Garden v. Ingram, 23 L. J. Ch. 478. On the other hand, as the mortgag6r 
 is not bound to insure, the mortgagee cannot charge him with premiums : 
 Dobson v. Land, 8 Hare 216. 
 
 A mortgagee by taking possession, assumes the duty of treating the pro- 
 perty as a provident owner would treat it : Shaeffer v. Chambers, 2 Halst. 
 Ch. 548. If it be a farm, for instance, he is not at liberty to let it lie un- 
 tilled, because the house on it, or the house and farm together, were not 
 rented, but must keep it in good ordinary repair, and is bound to good or- 
 dinary husbandry : Shaeffer v. Chambers, ut sup. And he will be charged 
 with the rent he might have obtained for it, although by cultivating it
 
 % 270 
 
 ADAMS S DOCTRINE OF EQUITY. 
 
 In taking the account of a mortgagee in possession, 
 where the rents have exceeded the interest on his mori> 
 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 ascertaining 
 on the one hand the aggregate amount of principal and 
 interest down to the period of redemption, and on the 
 other hand the aggregate amount of rent, down to the 
 same period, and striking a balance of the two accounts. 
 If he is to be charged with interest, the account 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 dimi- 
 nution of the subsequent interest. The effect of this 
 course is equivalent to allowing interest throughout on 
 the entire principal, and charging interest on the surplus 
 rents. 
 
 In order to authorize the rests, an express direction of 
 
 himself he has actually sustained a loss : Sanders v. Wilson, 34 Verin. 321 ; 
 and see Miller v. Lincoln, 6 Gray 556. 
 
 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 condition 
 broken, is responsible for ordinary diligence, and liable for ordinary ne- 
 glect. 
 
 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 destruc- 
 tion: Covell v. Dolloff, 31 Maine 104. 
 
 How the account of the rents and profits is to be taken, see Powell v. 
 Williams, 14 Ala. 476 ; Shaeffer v. Chambers, 2 Halst. Ch. 548. 
 
 A mortgagee in possession is liable to an action for waste : Givens v. Mc- 
 Calmont, 4 Watts 460. He cannot be dispossessed by the holder of the 
 legal title. Being in possession he is entitled to retain it until his mort- 
 gage is satisfied: Sahler v. Signer, 44 Barb. (N. Y.) 606.
 
 PERFECT AND IMPERFECT MORTGAGES. 271 
 
 the Court is necessary (a) and the primd facie presumption 
 is against allowing them. For the mortgagee is not bound 
 to take payments by instalments, and his possession is in 
 consequence of the mortgagor's default. If, however, he 
 take possession when no interest is in arrears, 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 ; and he will not in that p*-, -, Q-, 
 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. (#) 
 
 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 expressly de- 
 clared that the mortgagor out of possession shall not be 
 entitled to redeem, except within twenty years after the 
 mortgagee took possession, or after a written acknow- 
 ledgment 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 
 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 attainable 
 under his security. In order to remedy this objection, 
 
 (a) Webber v. Hunt, 1 Mad. 13. 
 
 (6) Quarrell v. Beckford, 1 Mad. 269; Wilson . Metcalf, 1 Rug. 530; 
 Wilson 0. Cluer, 3 Bea. 136 ; Horlock v. Smith, 1 Coll. 287. 
 
 (c) Hodle v. Healey, 6 Mad. 181 ; Cholmondeley v. Clinton, 4 Bl. 0. S. 
 1 ; 3 & 4 Wm. 4, c. 27, s. 28, supra.
 
 272 ADAMS'S DOCTKINE OF EQUITY. 
 
 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 re- 
 demption revived, if the decree appear to have been un- 
 fairly obtained, or if the mortgagee treat the loan as still 
 continuing ; as, for example, if he proceed against the 
 mortgagor on bond or other collateral security. If he 
 sell the estate, and thus render it impossible to reopen 
 the foreclosure, he will be restrained from suing on the 
 f*1 901 collateral securities, although the sale *may have 
 been bond fide made for less than the amount 
 due.(W) 
 
 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 
 a dry reversion, incapable of producing present profit, (/) 
 the^mortgagee in entitled to a sale, is respect of the special 
 
 (d) Tooke v. Hartley, 2 B. C. C. 125 ; Perry v. Barker, 8 Ves. 527 ; 13 
 Ves. 198 ; Lockhart v. Hardy, 9 Bea. 349. 
 
 (e) Mackensie v. Robinson, 3 Atk. 559. 
 (/) How v. Vigues, 15 Viner's Abr. 475.
 
 PERFECT AND IMPERFECT MORTGAGES. 273 
 
 character of the mortgaged property, and its incapacity of 
 constituting, except by a sale, a practical security for the 
 debt. And in cases where stock has been transferred by 
 way of mortgage, the mortgagee is entitled by the custom 
 of business to sell immediately on default, without the 
 necessity of obtaining a decree, {g) In those cases also 
 where there is a special supervening jurisdiction, and 
 where the Court does not act in respect of the mortgage 
 alone, a decree for sale may be obtained. If, for example, 
 the mortgagor be dead, there is an independent jurisdiction 
 to administer his assets, and therefore if the personalty be 
 insufficient, the mortgaged estate may be sold by consent 
 of the mortgagee, and the produce applied, first in dis- 
 charge of the mortgage, and then in payment of the other 
 debts, (h) or if the estate has *been vested in an 
 infant, a sale may be directed 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.(^) 1 If an express power of sale is given by the 
 
 (g) Tucker v. Wilson, 1 P. W. 261. 
 
 (h) Daniel v. Skipwith, 2 B. C. C. 155. 
 
 (i) Mondey v. Mondey, 1 Ves. & B. 223 ; Brookfield v. Bradley, Jac. 
 634 ; Davis . Dowding, 2 K. 245. 
 
 (&) 2 Story on Eq. Jur. s. 1025 ; [Brinkerhoff v. Thallhimer, 2 John. Ch. 
 486 ; Mills v. Dennis, 3 Id. 369.] 
 
 1 In England, by Stat. 15 & 16 Viet. c. 86, s. 48, the Court of Chancery 
 is now empowered in a foreclosure suit, to direct a sale of the property at 
 the request of either party ; and recent statutes have regulated the mort- 
 gagee's remedy by powers of sale. See Williams on Real Property 396. 
 In some of the United States the remedy in equity obtains : 4 Kent's Com. 
 181 ; in others the proceedings are regulated by statute: Williams on Real 
 Property 395, note. 
 
 In many of the states the ancient practice of procuring a strict fore- 
 closure is not adopted: Nelson . Carrington, 4 Munf. 332; Rodgers < 
 Jones, 1 McCord's Ch. 221 ; Downing v. Palmateer, 1 Monr. 66; Pannelj 
 18
 
 274 ADAMS'S DOCTRINE OF EQUITY. 
 
 mortgage, such a power forms an additional remedy for the 
 mortgagee, and does not interfere with his right to fore- 
 close. 1 
 
 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 
 
 . Farmers' Bank, 7 Har. & J. 202 ; Humes v. Shelly, 1 Tenn. 79 ; Hord v. 
 James, Id. 201 ; David v. Grahame, 2 Har. & G. 94. See Henderson v. 
 Lowry, 5 Yerg. 240 ; Smith v. Bailey, 1 Shaw (Verm.) 163 ; Lockwood 
 v. Lockwood, 1 Day 295 ; Baylies v. Bussey, 5 Greenleaf 153 ; Gilman 
 v. Hidden, 5 N. H. 31 ; Erskine v. Townsend, 2 Mass. 493 ; 5 Ham. 
 554. 
 
 The practice in the New England states seems to be similar to that of 
 the English Courts : Mix v. Hotchkiss, 14 Conn. 32 5 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, 38 Maine 548. In Pennsylvania 
 a mortgage may be foreclosed by scire facias; so in Illinois and in Mis- 
 souri by petition and summons. It was held in Riley v. McCord, 24 
 Missouri 265, that a mortgagee had still a right to come into equity, not- 
 withstanding the remedy provided by statute; and see Hall v. Hall. 46 
 N.H. 240; McCumber v. Gilman, 13 111. 542. In Pennsylvania, however, 
 the Courts have no equitable jurisdiction to compel the sale of the mort- 
 gaged premises at the suit of the mortgagee ; the remedy is by scire facias 
 under the statute : Ashhurst v. The Montour Iron Co., 35 Penn. St. 30 ; 
 Bradley v. The Chester Valley R. R. Co., 36 Id. 141. 
 
 1 Carradine . O'Connor, 21 Ala. 573 ; Walton v. Cody. 1 Wis. 420. A 
 power to mortgage includes a power to execute a mortgage containing a 
 power to the mortgagee to sell the premises in default of payment, it being 
 one of the usual and lawful remedies given to a mortgagee, known to the 
 law and- regulated by statute: Wilson v. Troup, 7 John. Ch. 25; 2 Cowen 
 195, s. c. See Russell v. Plaice, 18 Bea. 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 Caines Gas. 
 in Eq. 1 ; Varnumr. Meserve. 8 Allen (Mass.) 158. A sale under a power in 
 a mortgage must pursue strictly, as to time and place, the stipulation in the 
 mortgage : Hall v. Towne, 45 111. 493.
 
 PERFECT AND IMPERFECT MORTGAGES. 275 
 
 all his creditors, will not permit a creditor to keep back 
 .part of that property, and at the same time to share in 
 the distribution of the rest. The mortgagee therefore 
 must elect between two courses. He must either relin- 
 (j[iiish his security and prove for the whole debt ; or he 
 must realize his security, and afterwards prove for so 
 much of the debt as the produce is insufficient to discharge. 
 And in order to effectuate this latter course, it is .directed 
 that the commissioner acting under the fiat, on being 
 satisfied of the creditor's title as mortgagee, shall take an 
 account of the moneys due ; shall cause the mortgaged 
 premises to be sold, and the produce to be applied, first in 
 payment of the expenses, and then in satisfaction of the 
 claim ; and if the moneys produced shall be insufficient to 
 satisfy it, shall admit the mortgagee as a creditor for the 
 deficiency, and to receive dividends thereon.^) 1 
 
 In addition to regular or perfect mortgages, which 
 *convey the legal estate to the mortgagee, and r#ioo-i 
 specify a day of forfeiture at law, there are other 
 securities of an analogous character, but defective in one 
 or both of these respects. 
 
 These imperfect securities are seven in number : viz., 
 1. Mortgages of a trust or equity of redemption, and 
 
 (I) General Order in Bankruptcy of 8th March, 1794 ; 1 Mont. & Ayrton's 
 Bankruptcy 243 ; Greenwood r. Taylor, 1 R. & M. 185 ; Mason v. Bogg, 2 
 M. & C. 443 ; Davis v. Dowding, 2 K. 245. 
 
 1 Where a mortgagor becomes bankrupt, and a deficiency. of his property 
 is apprehended, and a prior mortgagee obtains the appointment of a re- . 
 ceiver to collect the rents, such mortgagee acquires a lien upon the rents, 
 and, upon motion, they may be applied to the mortgage debt : Post . 
 Dorr, 4 Edw. Ch. 412. See, as to the appointment of a receiver, Cortleyeu 
 v. Hathaway, 3 Stockt. 39 ; Finch v. Houghton, 19 Wis. 149 ; Hyman v. 
 Kelly, 1 Nev. 179. A receiver cannot be appointed at the commencement 
 of the foreclosure suit : Ibid.
 
 276 ADAMS'S DOCTRINE OF EQUITY. 
 
 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. Welsh 
 mortgages ; 4. Trust deeds in the nature of mortgage ; 5. 
 The equitable lien of a vendor or purchaser of real estate ; 
 6. Equitable fi.fa. and elegit ; and 7. Judgment charges 
 under 1 and 2 Viet. 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 encumbrancer, and cannot be transferred 
 to the mortgagee. He is therefore disabled from obtain- 
 ing possession at law, and is entitled in consequence of 
 that disability, to have a receiver appointed in equity, by 
 whom the rents of the estate may be received, and applied 
 in satisfaction of his mortgage. A receiver, however, will 
 not be appointed, if a prior legal encumbrancer is in pos- 
 session, unless the applicant will pay off his demand. If 
 the prior encumbrancer be not in possession, the appoint- 
 ment may be made, without prejudice to his right of ap- 
 plying 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 unencumbered, he is liable by statute 
 to forfeit his equity, and to be ipso facto foreclosed in favor 
 of the second mortgagee, (n) By the same act it is 
 P1231 * enac t e( l that if a person bound by judgment, 
 statute or recognisance, borrow money on mort- 
 
 (m) Berney v. Sewell, 1 Jac. & W. 627 ; Brookes v. Greathed, Id. 176. 
 (n) 4 & 5 Wm. 3, c. 16 ; Stafford v. Selby, 2 Vern. 589.
 
 PERFECT AND IMPERFECT MORTGAGES. 277 
 
 gage, without giving notice thereof in writing, he must 
 discharge the judgment, statute, or recognisance, within 
 six months after requisition by the mortgagee, and that in 
 default 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 convey- 
 ances, or by an uncompleted contract to convey. Mort- 
 gages of this latter class entitle the mortgagee to claim 
 specific performance and the execution of a legal mort- 
 gage. In the meantime, they stand on the same footing 
 as mortgages of an equity, and entitle the mortgagee to a 
 receiver of the rents. 1 
 
 The second class of imperfect mortgages are equitable 
 mortgages by deposit of- title deeds, unaccompanied by a 
 written contract. 2 
 
 1 A Court of equity will often pronounce that to be an equitable mort- 
 gage, which at law would be considered a conditional sale, and if a con- 
 veyance resolves itself into a security for the performance or non-perform- 
 ance 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 discharge of a particular 
 debt, will be treated in equity as a mortgage, or a specific lien, which will 
 have precedence of subsequent judgment creditors: Read v. Simons, 2 
 Dessaus. 552 ; Welsh v. Usher, 2 Hill Eq. 167 ; Dow . Ker, 1 Spear Eq. 
 414 ; In the matter of Ilowe, 1 Paige 125 ; Bank of Muskingum v. Car- 
 penter, 7 Ohio 21 ; Lake v. Doud, 10 Ohio 415. See Brown v. Nickle, 6 
 Penn. St. 390 ; Locke v. Palmer, 26 Ala. 312 ; note to Russel v. Russel, 1 
 Lead. Gas. Eq. 541 ; Racouillat v. Sansevain, 32 Cal. 376. This is a ques- 
 tion, however, which depends to some extent upon the policy of the re- 
 cording 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 inter- 
 vening liens : Otis v. Sill, 8 Barb. S. C. 102. 
 
 2 Equitable mortgages by deposit have been sustained in Rockwell v.
 
 278 ADAMS'S DOCTRINE OF EQUITY. 
 
 The primd facie 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 em- 
 barrassing the debtor, but unaccompanied by any charge 
 on the estate. The attempt to carry the security beyond 
 this limit, and to make such deposits a charge on the 
 estate was seriously impeded by the enactment of the 
 Statute of Frauds, that no interest in land shall be created 
 otherwise than by writing; but it has been held that the 
 fact of the deeds being delivered to the creditor, raises an 
 implication of law, not only that they were to operate as 
 a security for the debt, but that such security was to be 
 r*194-l effectuated by a mortgage. (0) *The conclusion, 
 however, 0^1 this latter point seems unsatisfac- 
 tory; for although there may be a sufficient 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 
 
 (o) Russel v. Russel, 1 B. 0. 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; Jarvis v. Butcher, 16 Wis. 307. In Penn- 
 sylvania, it has been decided that an equitable mortgage by delivery of 
 title deeds, or otherwise by parol, is not valid : Shitz v. Dieffenbach, 3 
 Penn. St. 233 ; Bowers v. Oyster, 3 Penna. R. 240; Thomas's Appeal, 30 
 Penn. St. 378 ; see also as to Kentucky : Vanineter v. McFaddin, B. Monr. 
 435. See Edwards Ex'rs. v. Trumbull, 50 Penn. St. 509. So also, in 
 Ohio : Probasco v. Johnson, 2 Disney 96. 
 
 It seems such a mortgage would not be valid in Vermont, though the 
 point was not decided : Bicknell . Bicknell, 31 Verm. 498.
 
 PERFECT AND IMPERFECT MORTGAGES. 279 
 
 it was established 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. 1 A delivery 
 to a third person on behalf of the creditor would probably 
 be sufficient if the intention were proved. But if the 
 deeds are retained by the mortgagor a parol agreement 
 to deposit them is ineffectual.^) 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 
 another, there may be much difficulty in considering 
 either of them as an equitable mortgagee, or as entitled 
 
 (p) Ex parte Whitbread, 19 Yes. 209 ; Ex parfce Hooper, 1 Meriv. 7. 
 (q) Ex parte Coming, 9 Veg. 115; Ex parte Whitbread, 19 Ves. 209 ; 
 Ex parte Coombe, 4 Madd. 249. 
 
 1 The mere fact that the title deeds are in a bond-creditor's possession, 
 is not sufficient evidence by itself of an equitable mortgage in his favor : 
 Chapman v. Chapman. 13 Beav. 308.
 
 280 ADAMS'S DOCTRINE OF EQUITY. 
 
 to more than his right of detainer, (r) 1 If the delivery 
 
 l~*1251 * s no ^ sfri^ty ky wa y of *pledge, but in order to 
 the preparation of a regular mortgage, there 
 seems to he 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 ho 
 is entitled, like the mortgagee of an equity, to have a 
 receiver appointed of the rents. His mortgage specifies 
 no day of payment, and a doubt therefore has existed 
 whether his proper remedy is by foreclosure or by a de- 
 cree for sale. The decisions on this point are not uniform, 
 
 (r) Ex parte Wetherell, 11 Ves. 401; Ex parte Pearsa, Buck 525; Ex 
 parte Chippendale, 2 M. & A. 299. 
 
 (s) Norris v. Wilkinson, 12 Ves. 192 ; Ex parte Bruce, 1 Rose 374 ; 
 Hockley v. Bantock, 1 Russ. 141 ; Keys v. Williams, 3 Y. & C. 55. 
 
 1 In Roberts v. Croft, 24 Beav. 223, the equitable mortgagor deposited 
 with one creditor all the deeds except the last conveyance to himself, and 
 this he subsequently placed with another person. It was held that the 
 first creditor was entitled to priority, on the ground that title papers de- 
 posited by way of mortgage need not necessarily show the mortgagor's 
 title. In Daw v. Terrell, 33 Beav. 218, the deposit of deeds of two lots, 
 and an order on the mortgagor's bankers for the deeds of a third, were 
 held to constitute a good equitable mortgage as to the whole. The deeds of 
 the third property had been deposited with the bankers by way of mort- 
 gage, and, on payment, had been returned to the mortgagor.
 
 PERFECT AND IMPERFECT MORTGAGES. 281 
 
 but their result appears to be that the implied contract is 
 one for a legal mortgage, and therefore carries with it all 
 the rights which a legal mortgage would confer, including 
 the right of foreclosure. Whether he is bound to abide 
 by that right, or may claim in the alternative a sale of 
 the estate, seems to be still in doubt, (t) 1 
 
 The third and fourth classes of imperfect mortgages 
 are Welsh mortgages, and trusts 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 inter- 
 est, and its chief imperfection is the w r ant 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*i o^-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. (u) 2 
 
 Trust deeds in the nature of mortgage are mere con- 
 veyances to the creditor, on trust for the debtor until de- 
 fault ; and after default, on trust to sell and to retain the 
 
 (0 Pain v. Smith, 2 M. & K. 417 ; Parker 0. Housefield, 2 M. &K.419 ; 
 Brocklehurst v. Jessop, 7 Sim. 438: Moores v. Choat, 8 Sim. 508, 515, 
 523 ; Price v. Carver, 3 M. & C. 157, 161 ; Lister . Turner, 5 Hare 281. 
 
 (M) Yates v. Hambley, 2 Atk. 360 ; Fenwick . Reed, 1 Meriv. 114 ; 
 Teulon v. Curtis, Younge 610 ; Balfe v. Lord, 1 Conn. & L. 519. 
 
 1 Sale and not foreclosure was held to be the remedy in Tuckley . 
 Thompson, 1 Johns. & H. 126 ; but Redmayne . Forster, L. R. 2 Eq. 467, 
 is the other way. 
 
 4 In Louisiana, the antichresis, which resembles the Welsh mortgage, 
 in that the creditor is entitled to take the rents and profits in discharge 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.
 
 282 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 consequent 
 absence of a right to foreclosure. The estate never 
 vests absolutely in the creditor, and he is placed rather 
 in the position of a trustee, though to some extent for 
 his own benefit, than in that of an independent mort- 
 gagee, (v) 
 
 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 l 
 
 The term lien, when accurately used, signifies a right 
 to retain a personal chattel, until a debt due the person 
 retaining is satisfied ; and it exists at common law in- 
 dependently 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 
 
 f*l 271 ^ P a y men ^ *^ ne same effect follows ; for it 
 
 cannot be supposed that the creditor was intend- 
 
 (v) Ex parte Pettit, 2 Gl. & J. 47 ; Sampson v. Pattison, 1 Hare 533. 
 
 1 This equitable lien gives the vendor, at least at law, no right to detain 
 the title deeds : Goode v. Burton, 1 Exch. 189.
 
 PERFECT ANI> IMPERFECT MORTGAGES. 283 
 
 ed to detain the chattel during the whole period of post- 
 ponement, (w) There is also a right at law in the nature 
 of lien, entitling the vendor of a chattel who has no-t 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, 1 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.(#) 
 
 The equitable lien on a sale of realty is very different 
 from a lien at law ; for it operates after the possession 
 has been changed, and is available by way of charge, 
 instead of detainer. 
 
 The distinction may, perhaps, be traced to the same 
 principle which prevails in regard to specific performance ; 
 viz., that where the possession of a chattel has been 
 parted with, the Courts of common law cannot compel 
 its restoration, but can only give damages for its deten- 
 tion, which could be equally well obtained in an action 
 for its price. A right of lien, therefore, when the posses- 
 sion has been parted with, would be a nullity at law ; and 
 as damages are a sufficient remedy for detention of chattels, 
 there is no ground for equitable interference. But, on 
 the other hand, where real estate is concerned, a specific 
 decree is required, and will be made. 
 
 (w) Smith's Merc. Law. 510, 518; Jarm. Byth. 3-13. 
 (x) Ibid, 436-9, 457-63, 500-9. 
 
 1 Or, if the sale is on credit, to exercise the well known right of stoppage 
 in transitu. And the vendor may come into a Court of Equity, and ob- 
 tain its aid to enforce this lien by an injunction : Schotsmans v. The Lan- 
 cashire and Yorkshire R. R. Co., L. R. 2 Chan. Ap. 332.
 
 284 ADAMS'S DOCTRINE OF EQUITY. 
 
 Whatever be the origin of the distinction, its existence 
 is clear. And it is an established principle of equity, 
 that where a conveyance is made prematurely before pay- 
 ment of the price, the money is a charge on the estate in 
 the hands of the -vendee ; and where the money is paid 
 prematurely *before conveyance, it is, in like 
 - manner, a charge on the estate in the hands of 
 the vendor. (yY 
 
 (y] Mackreth . Symmons, 15 Ves. 329. [See Rose v. Watson, 10 House 
 of Lords Gas. 672.] 
 
 1 The subject of the equitable lien of the vendor for unpaid purchase- 
 money will be found discussed in the notes to Mackreath v. Symmons, 1 
 Lead. Cas. Eq. 235. " The true nature of this claim appears to be this : 
 It had its origin in a country where lands were not liable, both during 
 and after the life of the debtor for all personal obligations, indiscrimi- 
 nately, includirfg debts by simple contract ; and it seems to be an original 
 and natural equity, that the creditor whose debt was the consideration of 
 the land, should by virtue of that consideration be allowed to charge the 
 land upon failure of personal assets. It is not a lien until a bill has been 
 filed to assert it ; before that is done it is a mere equity or capacity to ac- 
 quire a lien, and to have satisfaction of it. When a bill is filed it becomes 
 a specific lien :" 1 Lead. Cas. Eq. 373. The states in the Union may, as 
 to this subject, be divided into five classes : 
 
 First, those in which the lien is recognised by judicial decision : such 
 are New York Stafford v. Van Rensselaer, 9 Cowen 316; Warren v. Fenn, 
 28 Barb. 335 ; New Jersey Vandoren v. Todd, 2 Green Ch. 397 ; Herbert 
 . Scofield, 1 Stockt. 492 ; Dudley v. Matlack, 1 McCart. 252 ; Indiana 
 Deibler v. Barwick, 4 Blackf. 339 ; McCarty v. Pruet, 4 Ind. 226 ; Cox v. 
 Wood, 20 Id. 54; Ohio Williams v. Roberts, 5 Ohio 35; Mississippi 
 Stewart et al. . Ives et al., 1 Sm. & M. 197; Trotter v. Irwin, 27 Miss. 
 772 ; Littlejohn . Gordon, 32 Id. 235 ; Missouri Marsh v. Turner, 4 Mo. 
 253 ; Bledsoe . Games, 30 Id. 448 ; Illinois Dyer v. Martin, 4 Scam. 148 ; 
 Trustees v. Wright, 11 111. 603; Maryland Moreton v. Harrison, 1 Bland. 
 491 ; Carr v. Hobbs, 11 Md. 285 ; Bratt v. Bratt, 21 Id. 578 ; Minnesota 
 Selby 0. Stanley, 4 Minn. 65 ; Tennessee Eskridge v. McClure, 2 Yerg. 
 84 ; Brown . Vanlier, 7 Humph. 239 ; Alabama Hall's Ex'rs. v. Click, 5 
 Ala. 363 5 Burns v. Taylor, 23 Id. 255 ; California Truebody v. Jacobson, 
 2 Cal. 269 ; Williams v. Young, 17 Id. 403 ; Burt v. Wilson, 28 Id. 632 ; 
 Arkansas English v. Russell, Hemp. 35 ; Georgia Mounce v. Byars, 16 
 Georgia 469 ; Chance r. McWhorter, 26 Id. 3] 5 ; Florida Woods v. Bailey,
 
 PERFECT AND IMPERFECT MORTGAGES. 285 
 
 The lien thus attaching on the estate is obviously use- 
 less by way of detainer, and can only be available by way 
 
 3 Flor. 41 ; Iowa Pierson v. David, 1 Iowa 23 ; Michigan Sears v. Smith, 
 2 Mich. 243 ; Converse v. Blumrich, 14 Id. 124 ; Texas Pinchain v. Col- 
 lard, 13 Texas 333 ; Glasscock v. Glasscock, 17 Id. 480. 
 
 Second. Those states in which the lien is expressly recognised and main- 
 tained by statute : Maryland General Laws, Art. 16, \ 130 ; Iowa Re- 
 vised Laws of 1860, page 653. 
 
 Third. Those in which the lien is abolished or confined within narrow 
 limits by statute : Virginia where the vendor's lien is abolished unless 
 expressly reserved in the conveyance : 2 Mat. Dig. 397 5 Yancey v. Mauck, 
 15 Gratt. MOO ; though it formerly existed : Tompkins v. Mitchell, 2 Rand. 
 428 ; Kyles v. Tait, 6 Gratt. 44 ; Kentucky where there is a statute to the 
 same effect : Digest, vol. ii, 230 ; Gritton v. McDonald, 3 Mete. 252 ; Ver- 
 mont where the Statute of 1851 abolishes the lien entirely. 
 
 Fourth. Those states in which the lien has never been recognised by 
 the courts : Pennsylvania Kauffelt v. Bower, 7 S. & R. 64 ; Hepburn v. 
 Snyder, 3 Penn. St. 72 ; Zentmyer v. Mittower, 5 Id. 403 ; Hiester . 
 Green, 48 Id. 96 ; though a lien may be created by express charge in the 
 conveyance : Heist v. Baker, 49 Penn. St. 9 ; North Carolina Womble v. 
 Battle, 3 Ired. Eq. 182 ; Henderson v. Burton, 3 Id. 259 ; Cameron v. 
 Mason, 7 Id. 180 ; South Carolina Wragg's Rep. v. Comp. Gen., 2 
 Dessaus. 509 ; Maine Phillbrook v. Delano, 29 Maine 410 ; Massachusetts 
 Gilman v. Brown, 1 Mason 191 ; though see Wright v. Dame, 5 Mete. 503. 
 
 Fifth. Those states in which the question seems yet to be undecided : 
 New Hampshire Arlin v. Brown, 44 N. H. 102 ; Connecticut Watson . 
 Well, 5 Conn. 468 ; Dean v. Dean 6 Id. 285 ; Atwood v. Vincent, 17 Id. 
 575 ; Delaware Budd . Bnsti, 1 Harrington 69. No vendor's lien exists 
 in Kansas when a deed absolute on its face is given : Simpson v. Mun- 
 dee, 3 Kansas 172; Brown v. Simpson, 4 Id. 76. 
 
 In the United States Courts this lien is recognised : Bayley v. Green- 
 leaf, 7 Wheat. 46 ; Chilton v. Braiden's Adm'x., 2 Black 458. 
 
 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 ; Harper v. 
 Williams, 1 Dev. & Bat. 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 . 
 Kilpatrick, 23 Miss. (Cushm.) 124 ; Green v. Demos, 10 Humph. 371 ; 
 Webb r. Robinson, 14 Geo. 216 ; MacAlpine v. Burnett, 23 Texas 649 ; 
 Chance r. McWhorter, 26 Geo. 315 ; Selby v. Stanley, 4 Minn. 65. See 
 note to Mackreth v. Syminons, supra.
 
 286 ADAMS'S DOCTRINE OF EQUITY. 
 
 of charge. It is treated, therefore, as a security in the 
 nature of mortgage j 1 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, pro- 
 
 (z] I Sug. V, & P. 427. 
 
 The lien arises on the conveyance of an equitable, as well as a legal 
 estate: Warren v. Fenn, 28 Barb. 335; Bledsoe v. Games, 30 Missouri 
 448 ; 1 Lead. Gas. Eq. 363 ; Hill . Grigsby, 32 Cal. 55. And on the sale 
 of a term of years: Bratt v, Bratt, 21 Md. 578. In Burns v. Taylor, 23 
 Ala. 255, it was said to apply to an exchange with the same force as to a 
 sale for money ; and see Wickman v. Robinson, 14 Wis. 493. See also, 
 Child v. Burton, 6 Bush 617 ; where a lien was held to have attached on 
 other land exchanged by the vendee for the land sold. 
 
 The lien of a vendor after conveyance is to be distinguished from the 
 interest of the vendor under articles before conveyance. The former is a 
 mere charge; the latter is an estate. See, however, Hall v. Jones, 21 Md. 
 439; and Haughwout v. Murphy, 7 C. E. Green 531. After conveyance 
 the whole estate both legal and equitable passes to the vendee, and the 
 vendor has a mere naked right to the purchase-money enforceable against 
 the land. Before conveyance, however, and while there is a contract of 
 sale only, the vendor has the legal estate in the land, and the vendee has 
 the equitable interest, the former being a trustee of the beneficial interest 
 in the land for the latter ; the latter being a trustee of the purchase-money 
 for the former. See Chapter on Conversion, post. This distinction has 
 in many cases in this country been disregarded, and the interest of a vendor 
 under articles or a title-bond treated as if it were the same as the equit- 
 able lien for purchase-money after a conveyance has been executed. Such, 
 however, is by no means the case, and the distinction above stated should 
 always be kept in view. 
 
 The lien of the vendee who has prematurely paid his purchase-money 
 has been recognised in this country : Wickman v. Robinson, 14 Wis. 493. 
 And as to this lien, see Rose v. Watson, 10 House of Lords Gas. 672. 
 
 1 It is contended by the author of the American note to Mackreth v. 
 Symmons (supra), that this lien does not partake of the nature of a mort- 
 gage : 1 Lead. Gas. Eq. 373 ; and ees Shoffner v. Fogleman, 1 Wins. (N. C.) 
 No. 2 (Eq.) 12.
 
 PERFECT AND IMPERFECT MORTGAGES. 287 
 
 tects it from being lost by postponing the day of pay- 
 ment. 1 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.(#) 2 It is different if the 
 
 (a) Winter r. Anson, 3 Hues. 488. 
 
 1 Whether the lien is barred when the debt is barred by the Statute of 
 Limitations seems not be settled. See 1 Lead. Gas. Eq. 370 ; also Little- 
 john r. Gordon, 32 Miss. 235. 
 
 2 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. 308 ; 
 Tompkins v. Mitchell, 2 Rand. 418 ; Campbell v. Baldwin, 2 Humph. 248 ; 
 Gilman r. Brown, 1 Mason 192 : Tiernan v. Beam. 2 Ham. 383. See also, 
 Evans r. Goodlet, 1 Blackf. 246 ; Cox v. Fenwick, 3 Bibb 183 ; White v. 
 Williams, 1 Paige 502; Thornton . Knox's Ex'rs., 6 B. Monr. 74 ; Ross 
 r. Whitson, 6 Yerg. 59 ; Mims r. Macon, 3 Kelly 333. See note to Mack- 
 reth v. Symmons, ut sup., where it is stated to be the result of the Ameri- 
 can authorities, " that the implied lien will be sustained wherever the 
 vendor has taken the personal security 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 other hand, that the lien will be considered as waived 
 whenever any distinct and independent security is taken, whether by 
 mortgage of other land, or pledge of goods, or personal responsibility of 
 a third person (as the endorsement 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 purchase-money, unless there is an express agreement that the 
 implied lien shall be retained." See also, Truebody v. Jacobson, 2 Cal. 
 269; Griffin v. Blanchar, 17 Id. 70; Delassas v. Posten, 19 Miss. 425; 
 Tiernan v. Thurman. 14 B. Monr. 277 : Hare . Deusen, 32 Barb. 92 ; 
 Parker County . Sewell, 24 Tex. 238; Harris v. Harlan, 14 Ind. 439; 
 Selby v. Stanley, 4 Minn. 65 ; Daughaday r. Paine, 6 Id. 443 ; Hummer . 
 Schott, 21 Md. 307; Fogg r. Rogers, 2 Cold. (Tenn.) 290; Schwartz r. 
 Stein, 29 Md. 112 ; Hadley v. Pickett, 25 Ind. 450; Porter v. Dubuque, 20 
 Iowa 440 ; McGonigal v. Plummer, 30 Md. 422 ; Sullivan v. Ferguson, 40
 
 288 ADAMS'S DOCTRINE OF EQUITY. 
 
 security be itself the consideration, as, for example, if the 
 conveyance profess to be in consideration of a covenant 
 to pay, and not in consideration of actual payment. (#) 
 If, however, the security is inconsistent with a continu- 
 ance 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 particular case the lien is re- 
 linquished, can only be determined by the special cir- 
 cumstances. If the nature of the thing bought, and of 
 the consideration for it, exclude the supposition that the 
 lien was relied on, that circumstance will have weight in 
 l~*1 9Q1 ^ e Decision j or if a security be taken of *a cha- 
 racter and value which show that credit was 
 exclusively given to that security, that fact also will have 
 its weight. But the question is always one of intention, 
 to be collected from circumstances which have taken 
 place, (d) 1 
 
 (b) Clarke v. Royle, 3 Sim. 499 ; Parrott v. Sweetland, 3 M. & K. 655 ; 
 Bucknell v. Pocknell, 13 Sim. 406. 
 
 (c) Capper v. Spottiswoode, Taml. 21 ; Bond v. Kent, 2 Vern. 281. 
 
 (d) Nairn v. Prowse, 6 Ves. 752 ; Mackreth . Symmons, 15 Id. 329 ; 
 Winter v. Anson, 3 Russ. 488 ; 3 Sug. V. & P. c. xviii. 
 
 Mo. 79 ; Yaryan v. Shriner, 26 Ind. 364; Armstrongs. Ross, 20 N. J. Eq. 
 109. See, however, Burrus v. Roulhac, 2 Bush (Ky.) 39; where it was 
 held that the acceptance of a guaranteed note did not waive the lien ; 
 and see also, Anketel v. Converse, 17 Ohio 11 ; where a purchase-money 
 mortgage was held not to extinguish the lien. Also Dodge v. Evans, 43 
 Miss. 570 ; Fonda . Jones, 42 Miss. 792 ; Sanders v. McAfee, 41 Ga. 684; 
 Burette v. Briggs, 47 Mo. 356 ; Carrico v. Farmers' Bank, 33 Md. 235. 
 
 1 The lien may be waived by conduct showing that intention : see Clark 
 v. Hunt, 3 J. J. Marsh. 553. In some of .the states the lien may be en- 
 forced without a judgment: High and Wife v. Batte, 10 Yerg. 186 ; Gal-
 
 PERFECT AND IMPERFECT MORTGAGES. 289 
 
 The sixth and seventh classes of imperfect mortgages, 
 are those of equitable fieri facias and elegit , and judgment 
 charges under 1 & 2 Viet. c. 110, ss. 13, 14. 
 
 The writs of fieri 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 interests. If 
 the 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 Statute of Frauds, 
 giving legal execution against the real estate of which any 
 person was seise.d 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 exe- 
 cution sued out.(e) 
 
 The remedy afforded to the creditor in equity, when 
 either of these writs has been issued, is termed an equi- 
 table fieri facias, or elegit, according as it is sought against 
 personal or real estate. 
 
 (<;) 29 Car. 2, c. 2, s. 10; Forth e. Duke of Norfolk, 4 Mad. 503. 
 
 loway v. Hamilton's Heirs, 1 Dana 576 ; Richardson . 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 . Johnson, 5 Indiana 492 ; 
 Kern v. Hazlerigg, 11 Id. 443 ; Keith v. Homer, 32 111. 524 ; Simpson v. 
 Montgomery, 25 Ark. 365 ; Wells v. Morrow, 38 Ala. 125 ; Lindsey t>. 
 Bates, 42 Miss. 397 ; Carter v. Sims, 2 Heisk. (Tenn.) 166. 
 19
 
 290 ADAMS'S DOCTRINE OF EQUITY. 
 
 Its modus operandi is of a threefold character, first by 
 injunction against setting up an outstanding estate in bar 
 of execution at law ; secondly, by appointment of a re- 
 ceiver; and, thirdly, in the case of an equity of redemp- 
 tion, by permitting the judgment creditor to redeem. But 
 it is strictly confined to its legitimate object, viz., the im- 
 l~*1 301 P os ^ n S * on the equitable interest the liability 
 which would attach at law on a corresponding 
 legal interest. In accordance with this principle, no relief 
 can be obtained in equity until the title is perfected at law 
 by suing out the writ ; but it is not necessary that the 
 writ should be returned. There is an apparent exception 
 to this rule where the judgment creditor is seeking to re- 
 deem 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 
 encumbrances ; in the latter, 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 special jurisdiction supervenes, e. g., in a suit to 
 administer the debtor's assets ; but the relief is confined 
 to perception 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 re- 
 demption, for the judgment creditor is obliged to redeem
 
 PERFECT AND IMPERFECT MORTGAGES. 291 
 
 the entirety, and cannot be afterwards deprived of it 
 without payment of his demand. (/) 
 
 The rights of a judgment creditor, except as against 
 purchasers and mortgagees without notice, are much in- 
 creased by a late statute. The operation of the fieri facias 
 and elegit at law is extended, and a new right is intro- 
 duced 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 and orders in 
 bankruptcy and lunacy for payment of money, 
 shall have the effect of judgments. And that judgments, 
 rules, and orders of certain inferior Courts, may be re- 
 moved 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.(^r) 
 
 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 exer*- 
 cisable for his own benefit, and lands of which the debtor, 
 or any person in trust for him, is seised or possessed at 
 the time of entering the judgment. It appears, therefore, 
 to include leaseholds and trust estates, belonging to the 
 debtor at the date of the judgment, and to render his 
 alienation of the one before the delivery of the writ, 
 or of the other before execution is sued out, no longer 
 material. (Ji) 
 
 (/) Mitf. 126 ; Neate v. Duke of Marlborough, 3 M. & C. 407 ; Stileman 
 v. Ashdown, 2 Atk. 608 ; Rider v. Kidder, 10 Ves. 360, 368 ; Skeeles v. 
 Shearley, 3 M. & C. 112. 
 
 (g) 1 & 2 Viet. c. 110, s. 9-22 ; 2 Viet. c. 11, s. 5. 
 
 (A) 1 & 2 Viet. c. 110, s. 11 ; 2 Sug. V. & P. 401 ; 5 Jarm. Byth. 48 ; 1 
 Id. 107 ; Prideaux on Judgments 58.
 
 . ADAMS S DOCTRINE OF EQUITY. 
 
 The operation of the fieri facias at law is extended by 
 authorizing the sheriff to seize money, bank notes, bills of 
 exchange, and other securities, to pay the money or notes 
 to the creditor, and to sue on the bills or securities in his 
 own name, paying over the money to be recovered to the 
 creditor, (i) 
 
 The remedies by equitable fieri facias and elegit will of 
 course be extended in a corresponding degree ; but they 
 are still far from satisfactory remedies. The elegit is 
 imperfect, because it can only operate by perception of 
 profits, and does not authorize -acceleration of payment by 
 a sale; the^. fa. is imperfect because it cannot operate 
 on stock or shares. 
 
 In order to obviate these difficulties the judgment 
 charge has been introduced. 
 
 f*1 321 *The right to an elegit or fieri facias, whether 
 legal or equitable, is left untouched, and in the 
 case of personal estate, other than stock or shares, no al- 
 teration 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 constituted, under cer- 
 tain restrictions, an actual charge in equity ; but the ope- 
 ration 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. (Jc] 
 
 The judgment charge on real estate is created by an 
 enactment, that a judgment properly registered shall 
 operate as a charge in equity on all lands and heredita- 
 ments, including copyholds and customary holds, to 
 which the debtor may, at or after the time of entering 
 
 (0 1 & 2 Viet. c. 110, s. 12. (jfc) 2 & 3 Viet. c. 11, s. 5.
 
 PERFECT AND IMPERFECT MORTGAGES. 293 
 
 the judgment, be entitled, for any estate or interest at 
 law or in equity, whether in possession, reversion, or re- 
 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 enforce- 
 ment, as if he had by writing under Ms 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 bank- 
 ruptcy.!/) 
 
 *The judgment charge on stocks and shares is r#ioo-| 
 created by enactments, that if a judgment debtor 
 have an estate or interest in stock or shares, or in the divi- 
 dends or interest of stock or shares standing in his name 
 in his own right, or in the name of any other person in 
 trust for him, or in the name of the Accountant-General, 
 a judge's order may be obtained, to be made in the first 
 instance ex parte, and afterwards made absolute on notice, 
 charging such stock or shares, or any part thereof, or the 
 dividends or interest thereon, with payment of the judg- 
 ment 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 
 
 (I) 1 & 2 Viet. c. 110, s. 13 ; Smith v. Hurst, 1 Coll. 705 ; Clare v. Wood, 
 4 Hare 81 ; Harris v. Davison, 15 Sim. 128.
 
 294 ADAMS'S DOCTRINE OF EQUITY. 
 
 such charge until after the expiration of six calendar 
 months from the date of the order, (m) 
 
 Under these clauses the right of the judgment creditor 
 is no longer restricted to property which is capable of 
 seizure, nor to the inconvenient remedy by perception of 
 profits; but is extended to all property, both legal and 
 equitable, and may be made available by sale. 
 
 A clause is contained in the act for the purpose of pre- 
 cluding 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' a$ satisfaciendum for the 
 residue; but that if lands be seized under an elegit., the 
 execution is of so high a nature that after it the body of 
 the defendant cannot be taken, (w) The statutory enact- 
 ment is that, if a judgment creditor who under the powers 
 of the act shall have obtained a charge, or be entitled to 
 
 l~*l 341 *f a security, shall afterwards and 
 
 before the property so charged or secured shall 
 have been realized, and the produce applied towards pay- 
 ment of the debt, cause the person of the debtor to be 
 taken in execution, he shall be deemed to have relin- 
 quished such charge or security, (o) 
 
 (m) 1 & 2 Viet. c. 110, ss. 14 & 15; 3 & 4 Viet. c. 82, s. 1 ; Bristed v. 
 Wilkins, 3 Hare 235. 
 
 () 3 Steph. Bl. 650, 652. 
 
 (o) 1 & 2 Viet. c. 110, s. 16 ; Houlditch v. Collins, 5 Bea. 497.
 
 OF CONVERSION, ETC. 295 
 
 *CH AFTER 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 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 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-
 
 96 ADAMS'S DOCTRINE OF EQUITY. 
 
 chase of land, or for selling land and turning it into 
 f*1 3fi~l * mone y? the mone y or land, of which a conver- 
 sion is directed, will be dealt with in equity dur- 
 ing the continuance of the trust, and for objects within 
 the scope of the trust, as if the purchase or sale had been 
 actually made.(^) 1 
 
 (a) Fletcher v. Ashburner, 1 B. C. C. 497. 
 
 1 The rule is well settled that where there is an absolute and imperative 
 direction that land shall be sold and turned into money, or money be em- 
 ployed 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 Wheat. 564 ; Peter v. Beverly, 10 Peters 532 ; Tay- 
 lor v. Benham, 5 How. 233 ; Hawley v. James, 5 Paige 320 ; 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; Johnson v. 
 Bennett, 39 Barb. 251 ; Pratt v. Taliaferro, 3 Leigh 419 ; Rutherford v. 
 Green, 2 Ired. Eq. 122 ; Siter v. McClanachan, 2 Gratt. 280 ; Harcum v. 
 Hadnall, 14 Id. 369 ; Wilkins v. Taylor, 8 Rich. Eq. 294 ; Reading v. 
 Blackwell, 1 Bald. 166 ; Hurtt v. Fisher, 1 Har. & G. 88 ; Leadenham v. 
 Nicholson, Id. 267 ; Morrow v. Brenizer, 2 Rawle 185 ; Burr v. Sim. 1 
 Whart. 265 ; Smith v. Starr, 3 Id. 65 ; Rice v. Bixler, 1 W. & S. 445 ; Wil- 
 ling v. Peters, 7 Penn. St. 287 ; Parkinson's Appeal, 32 Id. 455 ; Brolasky 
 v. Gally's Ex'rs., 51 Id. 509 ; Scudder v. Vanarsdale, 2 Beas. 109 ; Loril- 
 lard v. Coster, 5 Paige 172; Drake v. Pell, 3 Edw. Ch. 251 ; Thomas v. 
 Wood, 1 Md. Ch. 296 ; Collins v. Champ's Heirs, 15 B. Monr. 118. A col- 
 lection of the English authorities on this subject will be found in Fon- 
 blanque's Eq., Vol. I., Book 1, Ch. 6, Sec. ix., notes * and t. See the notes 
 to Fletcher v. Asburner, 1 Lead. Gas. in Kq. 659. Where one by will 
 directed real estate to be sold, and the proceeds divided among residuary 
 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 coverteto take the legacy as land, the devise passed 
 to the husband and his representatives as personalty : Rinehart v. Harrison, 
 Baldw. 177. And where a will directs executors to sell the real estate, and 
 distribute the proceeds in a manner specified, the land will be treated as 
 personal property, and upon the death of one of the distributees before 
 the time appointed for the sale, 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 ; 
 Hurtt v. Fisher, 1 Har. & G. 88 ; Morrow v. Brenizer, 2 Rawle 185. 
 
 Where the sale is made by the act of the law, as under proceeding for
 
 OF CONVERSION, ETC. 297 
 
 The points which require notice under this rule are the 
 requirement that the converting trust shall be imperative, 
 and the limitation of the continuance and purposes of the 
 conversion so as to coincide with the continuance and 
 purposes of the trust. 
 
 First, the conversion must be directed by an imperative 
 trust; for if the trustees are entitled to exercise a discre- 
 tion, 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. 1 If, for example; the trustee is authorized to 
 " sell or not sell," as he may think best, or if he is directed 
 to purchase "freeholds or leaseholds," or to invest "on 
 
 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 Md. Ch. 113 ; Jones v. Plummer, 20 Id. 416. 
 
 Where land is not converted out and out, and at all events into personal 
 property, but on the contrary its conversion depends upon a condition, it 
 will not be considered in equity as personal estate : Evans v. Kingsberry, 
 2 Rand. 120. So if it depend upon a contingency: Naglee v. Ingersoll, 7 
 Penn. St. 197. 
 
 1 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 ; 
 Rinehart v. Harrison, Id. 177 ; Hocker v. Gentry; 3 Mete. 473 ; see, also, 
 Barnett v. Barnett's Adm'r., 1 Id. 258. "Where the power of sale, however, 
 is discretionary, there is no conversion till it is actually exercised : Domi- 
 nick v. Michael, 4 Sandf. S. C. 374 ; Bleight v. Bank, 10 Penn. St. 132 ; 
 Pratt v. Taliaferro, 3 Leigh 419 ; Montgomery . Milliken, 1 Sm. & M. 
 Ch. 495; Greenway . Greenway, 2 De G., F. & J. 128. So where the 
 power is to be exercised with the consent of the parties interested : N agio's 
 Appeal, 13 Penn. St. 262; Stoner P.Zimmerman, 21 Id. 394; Ross v. 
 Drake, 37 Id. 373 ; Anewalt's Appeal, 42 Id. 414. 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 
 Comstock 206 ; Tazewell v. Smith, 1 Rand. 313 ; though see contra, Christ- 
 ler's Ex'rs. . Meddis, 6 B. Monr. 35. A mere power to sell will not work 
 a conversion : Phelps v. Pond, 23 N. Y. 69 ; Chew v. Nicklin, 45 Penn. 
 St. 84.
 
 298 ADAMS'S DOCTRINE OF EQUITY. 
 
 land or good security," there is no positive expression of 
 intention to convert, and the Court in dubio will not inter- 
 fere ; but the use of such expressions, or of others which 
 in terms imply an option, will not deprive the trust of 
 an imperative character, if other portions of the instrument 
 show a contrary intent. A mere declaration that the pro- 
 perty shall be considered as converted is immaterial ; for 
 it is not the declaration, but the duty to convert, which 
 creates the equitable change, (b) 1 
 
 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 con- 
 structive conversion is determined with it. 
 
 Where the trust is countermanded by the subsequent 
 
 l~*1 371 * owners > their act is denominated a reconversion. 2 
 
 And such act must be equally unequivocal with 
 
 (6) Thornton . Hawley, 10 Ves. 129 ; Polley v. Seymour, 2 Y. & C. 708 ; 
 Cookson v. Cookson, 12 01. & F. 121 ; Attorney-General v. Mangles, 5 Mee. 
 
 6 W. 128. 
 
 1 Taylor v. Taylor, 3 De G., M. & G. 190 ; Robinson v. The Governors, 
 &c., 10 Hare 29. 
 
 2 Though land directed to be sold is considered as money, yet an election 
 may be made by those having a right to elect to take it as land : Tazewell 
 v. Smith, 1 Rand. 313 ; Craig v. Leslie, 3 Wheat. 578 ; Burr v. Sim, 1 Whart. 
 252 ; Broome v. Curry, 19 Ala. 805. But this election must be by some 
 unequivocal act, and all the parties interested must join : Willing v. Peters, 
 
 7 Penn. St. 290 ; Pratt . Taliaferro, 3 Leigh 428 ; Harcurn v. Hudnall, 14 
 Gratt. 369 ; High v. Worley, 33 Ala. 196 ; Beatty v. Byers, 18 Penn. St. 
 105 ; Dixon v. Gayfere, 1 De G. & J. 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. As to the power of an 
 infant to make an election, see Burr v. Sim ; Pratt v. Taliaferro ; Fletcher 
 t>. Ashburner (supra).
 
 OF CONVERSION, ETC. 299 
 
 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 re- 
 ceiving or reinvesting money which is directed to be laid 
 out in land.(W) But if an estate is directed to be sold, 
 and the proceeds to be divided among several persons, a 
 reconversion cannot be effected until all are competent 
 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.(tf) 
 
 The receipt by the cestui que trust of money convertible 
 into land operates, as we have seen, as a reconversion. 
 And the same result follows where a covenant has been 
 entered into for purchasing land on trust, and the cove- 
 nantee has become the only cestui que trust. In this case 
 the money is said to be " at home " in his hands ; and the 
 union of the double character in himself operates as a con- 
 structive receipt, and determines the trust. (/) 
 
 It has been contended that the right to countermand the 
 converting trust renders a gift of the proceeds of conver- 
 sion 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 otherwise ; for the 
 trust is in truth a compliance with the law by direct- 
 
 (c) Crabtree v. Bramble, 3 Atk. 680. 
 
 (d) Lingen v. Sowray, 1 P. W. 172 ; Cookson v. Cookson, 12 Cl. & F. 121. 
 
 (e) Fletcher . Ashburner, 1 B. C. C. 497, 500; Deeth r. Hale, 2 Moll. 
 317 ; Seeley v. Jago, 1 P. W. 389. 
 
 (/) Pulteney v. Darlington, 1 B. C. C. 223, 238 ; 7 B. P. C. by Toiul. 
 530 ; Wheldale v. Partridge, 8 Yes. 227, 235.
 
 300 | ADAMS'S DOCTRINE OF EQUITY. 
 
 ing that the land shall be sold to persons who may 
 F*1 381 *l e S a lty hld it, in order to raise'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 in- 
 flict a forfeiture of money, which he can enjoy, because 
 he might have elected to take land, which he cannot. (gY 
 
 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- 
 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 ac- 
 cording 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 con- 
 venient 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 2 If, for example, land be devised for 
 sale with a direction to apply the produce for purposes 
 altogether illegal, or which altogether fail, the heir-at-law 
 is entitled. If the purposes are partially illegal, or par- 
 
 (g) Fourdrin v. Gowdey, 3 M. & K. 383 ; Du Hourmelin v. Sheldon, 1 
 Bea. 79.; 4 M. & C. 525. 
 
 1 Craig v. Leslie, 3 Wheat. 564 ; Commonwealth . Martin, 5 Munf. 
 117; Taylor v. Benham, 5 How. U. S. 269; Anstice v. Brown, 6 Paige 
 448. 
 
 2 The student will find a clear statement of the rule upon this subject 
 in Bective v. Hodgson, 10 House of Lords Cas. 656. See also, Hill on Trus- 
 tees 127-128, and notes.
 
 OF CONVERSION, ETC. 301 
 
 tially 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 pur- 
 pose, or so much as is not required for the purpose of 
 the will. And e converse, if a purchase of land be di- 
 rected 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 can- 
 not or need not be applied to the purposes of the will. (A) 1 
 
 (A) Cogan p. Stephens ; Lewin on Trustees, App. vii. ; Hereford . Ra- 
 venhill, 1 Bea. 481; Eyre v. Marsden, 2 K. 564, 574 ; Ackroyd v. Smithson, 
 1 B. C. C. 503. 
 
 1 The result of the authorities on this subject is, that where land is de- 
 vised 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 interest, 
 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 sur- 
 plus, the heir takes the money as land : Craig v. Leslie, 3 Wheat. 564 ; 
 Burr v. Sim, 1 Whart. 252 ; Morrow v. Brenizer, 2 Rawle 185 ; Pratt v. 
 Taliaferro, 3 Leigh 419; Owens v. Cowan, 7 B. Monr. 152; Lindsay v. 
 Pleasants, 4 Ired. Eq. 320; Slocum v. Slocum, 4 Edw. Ch. 613 ; Bogert v. 
 Hertell, 4 Hill (X. Y.) 493. 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. on Dev. 74 ; 
 Thorn . Coles, 3 Edw. Ch. 330. In De Beauvoir v. De Beauvoir, 3 House 
 Lords Gas. 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 con- 
 version of the latter, and to show an intention to impress it with the char- 
 acter 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 limitations, so as to make the real estate go one way and the unin- 
 vested personalty 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
 
 302 ADAMS'S DOCTRINE OF EQUITY. 
 
 f*l W\ ^ n ^k e manner ? a conveyance of *real estate in the 
 owner's lifetime, on trust to convert it into money 
 and to pay the proceeds to him or to his executors, will 
 not, if the estate is unsold at his death, work an equitable 
 conversion in favor of the crown, so as to subject it to 
 probate duty.(z) 1 
 
 To this extent the general rule is clear. But where 
 real estate is devised for. sale, and its produce, either alone, 
 or in union with the personal estate, is constituted a fund 
 
 (i) Matson v. Swift, 8 Bea. 368; Taylor v. Haygarth, 14 Sim. 8. [See 
 Cradock v. Owen, 2 Sm. & Giffard 241.] 
 
 for all purposes, and be considered as personalty, 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 Rawle 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 dis- 
 tinct bequest to the next of kin on the occurrence of such failure : Taylor 
 v. Taylor, 3 De G., M. & G. 190 ; Robinson v. The Governors, 10 Hare 
 29 ; Fitch v. Weber, 6 Id. 145 ; Gordon . Atkinson, 1 De G. & Sm. 478 ; 
 Sammons w. Rose, 25 L. J. Ch. 615 ; 20 Jurist 73. 
 
 Though the undisposed of interest in land devised to be sold for par- 
 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. 
 
 1 Where a settlor conveys real estate upon trusts for sale, and directs the 
 proceeds to be applied to certain purposes, some of which fail, whether 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 purposes for which the sale 
 is directed : Clarke v. Franklin, 27 L. J. Ch. 567 ; 4 Kay & Johns. 257. 
 In Wilson v. Coles, 28 Bea. 215, there was a direction to sell real estate, 
 to invest the proceeds, to pay the income thereof to the testator's wife for 
 life, and after her death to pay the principal to a charity. The gift to the 
 charity failed ; but it was held that there had been a conversion out and 
 out, that the testator's heir took the residue, which remained undisposed 
 by reason of the failure of the gift to the charity, as personalty, and that 
 as such it passed to his personal representatives, and not to his heir-at-law.
 
 OF CONVERSION, ETC. 303 
 
 for particular payments, a contention sometimes arises as 
 to the purpose really in view; viz., whether it was con- 
 fined 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 augmenta- 
 tion by lapse, independently of the enactment of 1 Viet, 
 c. 26. The primd facie construction is in favor of the more 
 limited view; but if the will shows an intention to con- 
 vert quoad the ulterior object, there is no reason to con- 
 fine its effect. The question, however, is one of construc- 
 tion only, and it is sufficient here to notice that it exists. ()* 
 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 determining 
 in what character the party takes. The former question 
 
 (k) 1 iTarm. on Wills, c. xix, ss. 4 & 5 ; Amphlett v. Parke, 1 Sim. 275 ; 
 4 Russ. 75 ; 2 R. & M. 221. 
 
 1 The heir-at-law has a resulting trust in land directed to be sold, after 
 debts and legacies are paid, and may come into equity and restrain the 
 trustee from selling more than is necessary to pay the debts and legacies, 
 or may offer to pay them himself, and pray to have a conveyance of a part 
 of the land not sold in the first case, and the whole in the latter, which 
 property will in either case be land and not money ; but, if the intent of 
 the testator 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 
 intents, 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 Whart. 252 ; Pratt v. Taliaferro, 3 Leigh 419 ; 
 Wright . Trustees of Methodist Episcopal Church, 1 Hoff. Ch 205; Mor- 
 row v. Brenizer, 2 Rawle 185 ; but see note to previous page. 
 
 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 convey- 
 ance 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.
 
 304 ADAMS'S DOCTRINE OF EQUITY. 
 
 depends on the original character of the property; the 
 latter on the character which at the time of his taking it 
 has been impressed on it by the creator of the trust. The 
 test, 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 un- 
 disposed-of interest will be held by him in its converted 
 character; if they do not, in its original one. Let us, for 
 PM401 exam pl e > assume that land is devised on trust *to 
 sell, and to divide 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 execution 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 executor 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. (/) 
 
 We will next consider the doctrine of conversion in its 
 operation under contracts. 1 
 
 (I) Smith v. Claxton, 4 Madd. 484 ; Jessopp v. Watson, 1 M. & K. 665 ; 
 Hereford v. Ravenhill, 5 Bea. 51. 
 
 1 The rules as to conversion apply to agreements between parties to a 
 sale for the purposes of division : Hardy v. Hawkshaw, 12 Bea. 552 ; Na- 
 glee v. Ingersoll, 7 Penn. St. 197. Or to a conveyance for the benefit of 
 creditors on trusts for sale : Griffiths v. Ricketts, 7 Hare 299. An infant's 
 share in the proceeds of realty sold under proceedings in partition, will be 
 treated as real estate until he comes of age : Bateman v. Latham, 3 Jones 
 Eq. 35.
 
 OF CONVERSION, ETC. 305 
 
 The rule in respect to contracts is, that if a binding 
 contract be made for the sale of land, enforceable in equity, 
 such contract, though in fact unexecuted, is considered 
 as performed ; so that the land becomes in equity the 
 property of the vendee, and the 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 con- 
 veyance. And, vice versa, the vendor is entitled to inter- 
 est 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 comple- 
 tion, 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 after the death, r*i 4-1-1 
 *will be entitled to the purchase-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. (0) 
 
 In the case of contracts, as in that of trusts, it is essen- 
 tial that the contract be a binding one, and that the object 
 of the conversion be within its scope. 1 
 
 (m) 1 Sag. V. & P. c. iv., s. 1 ; c. vi., s. 2 ; 3 Sug. V. & P. c. xvi., 8. 1. 
 (n) Broome v. Monck, 10 Ves. 597. 
 
 (o) Knollys v. Shepherd, cited 1J. & W. 499 ; 1 Jarm. on Wills 147 ; 
 1 Sug. V. & P. 291 ; Lumsden p. Frazer, 12 Sim. 263. 
 
 1 See ante, note p. 136, upon the subject of equitable conversion gener- 
 ally, and also Story's Eq. Jurisprudence, ss. 790-793, and ss. 1212-1214 ; 
 Henson r. Ott, 7 Ind. 512. An equitable conversion occurs though the 
 election to purchase rests entirely with the vendee : Collingwood v. Row, 
 26 L. J. Ch. 649 ; Kerr v. Day, 14 Penn. St. 112. If there be a rescission 
 20
 
 306 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 defect 
 in the title or for any other reason, was not obligatory on 
 him at his decease, the heir or general devisee of realty 
 cannot require that the executor shall complete the pur- 
 chase. If, however, it were binding on the deceased con- 
 tractor, it is immaterial that it was optional with the other 
 party. When there is an option, if it be declared against 
 the contract, the property will go according to its original 
 character, and so long as the option is 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. 1 
 
 (p) Broome v. Monck, 10 Ves. 595; Rose v. Cunynghame, 11 Id. 550 ; 
 Townley v. Bedwell, 14 Id. 591 ; 1 Jarra. on Wills 49. 
 
 after the death of the vendor it amounts to a reconversion 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 con- 
 tract 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 : 
 Eose 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 tlie residuary 
 legatee : Donohoo v. Lea, 1 Swan (Tenn.) 119. 
 
 1 Equitable conversion by a contract of sale, does not affect the rights of
 
 OF CONVERSION, ETC. 307 
 
 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 intermediate 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 r^-Mo-i 
 equitable right might so conduct himself as to 
 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 choses 
 in_ action should exclude the wife's right by survivorship, 
 on the ground that such an assignment implies a contract 
 to reduce the chose into possession, and is equivalent in 
 equity to such reduction. This proposition was first over- 
 ruled in respect to bankruptcy, and it was decided that 
 whatever might be the rights of purchasers for value, the 
 assignees in bankruptcy were entitled to no such equity. 
 It was next overruled with respect to all assignments, 
 although for valuable consideration, if the chose were re- 
 versionary, and therefore incapable of present possession ; 
 leaving the question still open, whether, if it were capable 
 of immediate possession or become so during the cover- 
 ture, 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 
 
 (q) Moores v. Choat, 8 Sim. 508 ; Close v. Wilberforce, 1 Bea. 112 ; 
 Robinson c. Kosher, 1 You. & Coll. N. C. C. 7. 
 
 / 
 the creditors of the vendor: Leiper's Ex. . Irvine, 26 Penn. St. 54. The 
 
 rights of the widow and distributees in the fund are not changed by the 
 reconversion : Leiper's Appeal, 35 Penn. St. 420.
 
 308 ADAMS'S DOCTRINE OF EQUITY. 
 
 the assignee, be equivalent to a reduction into possession, 
 yet as against the wife, who is no party to the contract, 
 it cannot have that effect, (r) 1 
 
 On an analogous principle to that of conversion, it is 
 held that where property subject to a trust has been un- 
 duly changed, the substituted property is bound by the 
 incidents of that which it represents. 2 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. 3 Or again, if timber 
 be cut by a guardian or trustee on the estate of an infant 
 tenant in fee, the proceeds will be realty, and will go to 
 ^ e * ne ^ r ? it ^ s otherwise if the infant be tenant 
 in tail, for the conversion into personalty is then 
 palpably for his benefit, and the act ceases to be a breach 
 of trust. If the timber is blown down by accident, or is 
 cut down by a stranger tortiously, or if the act of the 
 guardian or trustee is authorized by the Court, there is 
 no breach of trust, and 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 
 
 (r) Ashby v. Ashby, 1 Coll. 553 ; Rees . Keith, 11 Sim. 388 ; Ellison v. 
 Elwin, 13 Sim. 309 ; Burnham v. Bennett, 2 Coll. 254. 
 
 (s) Tullit v. Tullit, Amb. 370 ; Witter v. Witter, 3 P. W. 99 ; Pierson v. 
 Shore, 1 Atk. 480 ; Ex parte Bromfield, 1 Ves. J. 453 ; 3 B. C. C. 510 ; 
 Oxenden v. Lord Compton, 2 Ves. J. 69. 
 
 1 See, however, in the United States, note to Hill on Trustees, p. 642, 
 4th Am. ed. 
 
 2 See Philips v, Crammond, 2 W. C. C..R. 441; and note, ante, page 33. 
 
 3 Collins v. Champ's Heirs, 15 B. Monr. 118.
 
 OF CONVERSION, ETC. 309 
 
 having done so be admitted or distinctly proved, the par- 
 ties 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 prin- 
 ciple of this doctrine is identical with that which origi- 
 nates 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 purchase, it 
 becomes a purchase with his money, and entitles him to 
 the estate. It is therefore unnecessary that the trust 
 should be evidenced in writing, notwithstanding that the 
 claim may be for real estate. But the application of the 
 trust fund must be admitted by the answer or proved by 
 convincing evidence. And unless there be corroborating 
 circumstances, such as a written account by the trustee 
 showing how the *money was used, or a clear r*\AA-\ 
 inability in him to make the purchase with other 
 funds, mere parol evidence of declarations supposed to be 
 made by him will be received with great caution, (ff- 
 
 (t) Lane v. Dighton, Amb. 409 ; Lewis v. Maddocks, 8 Ves. 150 ; 17 Id. 
 48 ; Denton v. Davis, 18 Id. 499 ; Taylor v. Plumer, 3 M. & S. 575 ; Lench 
 t>. Lench, 10 Ves. 511 ; Wilkins v. Stevens, 1 You. & Coll. V.-C. C. 431 ; 3 
 Sug. V. & P. c. xx., s. 3 and 4. 
 
 1 See Murray v. Lylburn, 2 John. Ch. 442 ; and note, page 33 : Olds . 
 Cummings, 31 111. 188 ; Pryor v. Wood, 31 Penn. St. 142. See also, May 
 v. Le Claire, 11 Wall. (U. S.) 217.
 
 310 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 investment. 
 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 prac- 
 tised was entitled to an injunction against its sale or as- 
 signment. 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 application was not jus- 
 tified where the contract was rescinded on the ground of 
 what may be called fraud in equity, rather than for abso- 
 lute legal nullity. The distinction did not prevail with 
 the Court ; but it is still considered by Sir Edward Sug- 
 den that, in the event of an appeal, the decree could 
 hardly have been maintained, (w) 1 
 
 (u) Small v. Attwood, Younge 507 ; 1 Sug. V. & P. 400. 
 
 1 The doctrine of conversion applies to a legislative direction for a sale : 
 Snowhill v. Snowhill, 2 Green Ch. 20 ; see In re Arnold, 32 Beav. 591 ; Dixie 
 v. Wright, Id. 662. 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. Coun. Cas. 381. But in England 
 it has been held that money paid into court for land taken under the com- 
 pulsory powers of an Act of Parliament, was to be treated as realty : Re 
 Homer's Est., 5 De G. & Sm. 483 ; Re Steward's Est., 1 Drew. 636 ; Re 
 Stewart, 1 Sm. & Giff. 39 ; Taylor's Settlement, 9 Hare 596 ; but see Ex 
 parte Hawkins, 1 3 Sim. 569; Ex parte Flamank, 1 Sim. N. S. 260. See 
 also, Bank of Auburn v. Roberts, 45 Barb. 419.
 
 OP PRIORITIES, ETC, 311 
 
 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 r*i 45-1 
 *thing. It therefore becomes necessary to consi- 
 der the principle which determines the PRIORITY between 
 such conflicting claims. 
 
 The rule of priority in regard to transfers and charges 
 of the legal estate, whether made spontaneously by a con- 
 veyance, or compulsorily by a judgment at law, is that 
 the order of date prevails. Conveyances take place 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 pur- 
 chasers ; that of Eliz. c. 5, by which certain grants either 
 of real or personal estate are avoided against creditors ; 
 and the Statutes of Bankruptcy and Insolvency, by which 
 certain grants made by a bankrupt or insolvent are 
 avoided as against his assignees. 1 
 
 1 The subject of conveyances of land and chattels in fraud of purchasers 
 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. Gas. 17 ; and to Twyne's Case, 1 Smith Lead. Cas. 33, 6th Am. ed., 
 by the late Mr. Wallace. By Act of Congress of March 2d, 1867, to 
 " Establish a uniform system of Bankruptcy throughout the United States," 
 certain conveyances by persons in contemplation of bankruptcy and with 
 an intention to defeat the operation of that act, are declared void. The
 
 312 ADAMS'S DOCTRINE OF EQUITY. 
 
 By the statute of 27 Eliz. c. 4, it is enacted, that con- 
 veyances, 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 heredita- 
 ments, 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 saine lands or 
 hereditaments for money or other good consideration, 
 without first revoking the prior conveyance, then the 
 prior conveyance shall be void as against the vendee. 
 
 A conveyance may be rendered voidable under this 
 act in three ways : viz., First, if it be designedly fraudu- 
 lent ; and in this case it may be avoided by a subsequent 
 r*14.fi1 conve y ance *from the heir of the grantor, 1 as 
 well as by one from the grantor himself, (v) Sec- 
 ondly, if it contain a power of re vocation, (w) And 
 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, 
 
 (v) Barrel's Case, 6 Rep. 72; 3 Sug. V. & P. 282. 
 (w) 3 Sug. V. & P. 307. 
 
 assignee in bankruptcy is entitled to recover the property thus improperly 
 disposed- of from the person to whom it has been transferred; and in cer- 
 tain cases, as where there has been collusion between the bankrupt and 
 the transferree, the latter, if a creditor, loses his right to prove his debt 
 against the estate. 
 
 1 This has been overruled in England by the recent case of Doe d. New- 
 man v. Rusham, 17 Q. B. (79 E. C. L. R.) 723 ; and Burrel's Case shown 
 not to support the proposition for which it is usually cited. See also, Doe 
 v. Lewis, 11 C. B. (73 E. C. L. R.) 1035.
 
 OF PRIORITIES, ETC. 313 
 
 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 pur- 
 chaser, e. (/., if there be a subsequent conveyance from 
 the volunteer to a purchaser for value, (y) If the grant 
 be voluntary in part, it will be voidable to that extent, 
 e, g., if it be made in consideration of marriage, and there 
 be an ultimate remainder to the brothers of the settlor, 
 the marriage will not per se support that remainder, and it 
 may be set aside by the purchaser, (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 
 lona fide sale for value has been made, the purchaser may 
 set aside the prior grant, and his lona fides will not be 
 affected by notice of it.(i) 1 If he claims under an exe- 
 cuted conveyance, the prior grant will be invalid at law ; 
 if under an executory contract, he may insist on a specific 
 performance in equity ; but it cannot be enforced against 
 him at the suit of the vendor, (c) 
 
 (x) Doe c. Manning, 9 East 59 ; Pulvertoft v. Pulvertoft, 18 Ves. 84 ; 3 
 Sug. V. & P. 286, et seq. 
 
 (y) Prodgers v. Langham, 1 Sid. 133; George . Milbanke, 9 Ves. 190; 
 Brown v. Carter, 5 Ves. 862 ; 3 Sug. V. & P. 297. 
 
 (z) Johnson v. Legard, 6 M. & S. 60 ; T. & R. 281 ; Doe v. Rolfe, 8 A. & 
 E. f,50 (35 E. C. L. R.) ; Davenport v. Bishopp, 2 N. C. C. 451. 
 
 (a) Petre v. Espinasse, 2 M. & K. 496 ; Pulvertoft . Pulvertoft, 18 Ves. 
 84. 
 
 (6) Gooch's Case, 5 Rep. 60 a. ; Pulvertoft v. Pulvertoft, 18 Ves. 84 ; 
 Buckle v. Mitchell, 18 Id. 100. 
 
 (c) Buckle v. Mitchell, 18 Ves. 100 ; Metcalfe . Pulvertoft, 1 Ves. & B. 
 180 ; Smith v. Garland, 2 Meriv. 123 ; Johnson v. Legard, T. & R. 281 ; 3 
 Sug. V. & P. 305 ; Willats c. Busby, 12 Law Jur. N. S. 105 ; 3 Sug. V. & 
 P. 300, et seq. 
 
 1 A different rule obtains in many of the United States : Note to Sexton 
 0. Wheaton, 1 Am. Lead. Cas. 36, 4th Am. ed.
 
 314 ADAMS'S DOCTRINE OF EQUITY. 
 
 i 
 
 f 13 Eliz. c. 5, it is enacted, 
 
 P*1471 
 
 that all conveyances, grants, &c., of any lands, 
 
 hereditaments, goods, or chattels, had or made of purpose 
 to delay or defraud creditors and others of their actions 
 or debts, shall be taken, only as against such persons and 
 their representatives as shall or might be so delayed or 
 defrauded, to be utterly void ; provided that the act shall 
 not extend to any conveyance or assurance made on good 
 consideration and bond fide to a person not having notice 
 of such fraud. 
 
 The provisions of this statute, like those of the statute 
 in favor of purchasers, 1 invalidate all conveyances and as- 
 signments made with a fraudulent design ;(d) 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 presumptive evidence that 
 it was meant to defeat his creditors. 2 If the amount given 
 constitutes a large proportion of his estate, it increases the 
 probability of such intent ; and if he is in a state of actual 
 insolvency, it appears to be conclusive evidence of fraud. 
 The presumption, however, does not arise except in favor 
 of persons who were creditors when the gift was made. 3 
 
 (d) Twyne's Case, 3 Rep. 80. 
 
 1 See Danbury v. Robinson, 1 McCart. 213. 
 
 2 As to the extent of indebtedness which will render a voluntary con- 
 veyance fraudulent as to creditors, the decisions in the United States are 
 not uniform. See note to Sexton v. Wheaton, ut supr. 
 
 8 See McLane v. Johnson, 43 Verm. 48.
 
 OF PRIORITIES, ETC. 315 
 
 But if the gift is set aside by them, the subsequent cred- 
 itors will be let in to partake of the fund, (e) 
 
 In order to invalidate a gift under this statute, the pro- 
 perty must be of a kind to which the creditors can resort 
 for payment ; for otherwise they are not prejudiced by 
 the *gift. For this reason, if relief be asked in 
 the lifetime of the debtor, the creditor must ob- 
 tain judgment for his debt, and the property must be 
 such as can be taken in execution. It was, therefore, 
 formerly held, that during the debtor's lifetime, and so 
 long as he was not bankrupt or insolvent, an assignment 
 of a chose in action could not be set aside ; but that it 
 was 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 Viet. c. 110. (/) 
 
 The effect of bankruptcy, or of a discharge under the 
 insolvent acts, in avoiding prior conveyances by the bank- 
 rupt or insolvent, is dependent on peculiar principles 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 a special 
 equity, transfers and charges of an equitable interest. 1 
 But if legal and equitable titles conflict, or if, in the ab- 
 sence of a legal title, there is a perfect equitable title by 
 conveyance on the one hand, and an imperfect one by 
 
 (e] Cadogan v. Kennett, Cowp. 432 ; Kidney v. Coussruaker, 12 Yes. 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. Jr. 160 ; Dundas v. Dutens, Id. 196 ; Nor- 
 cutt v. Dodd, 1 Cr. & P. 100 ; Story on Eq. a. 366, et seq. 
 
 1 See Cory t\ Eyre, 1 De G., J. & Sm. 167.
 
 316 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 em- 
 bodied in the maxim, that "between equal equities the 
 law will prevail:" 
 
 In order, however, that this maxim may operate, it is 
 essential that the equities be equal. If they are unequal, 
 the superior equity will prevail; and such superiority 
 may be acquired under any of the three following rules: 
 
 1. The equity under a trust or a contract in rem, is 
 superior to that under a voluntary gift, or under a lien by 
 judgment. 
 
 2. The equity of a party who has been misled, is 
 superior to his who has wilfully misled him. 
 
 3. A party taking with notice of an equity, takes sub- 
 ject to that equity. 
 
 r*14Ql *The first of these rules is, that the equity 
 under a trust or a contract in rem, is superior to 
 that under a voluntary gift, or under a lien by judgment. 
 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; 1 and even the judgment cred- 
 itor, though he has in some sense given a consideration, 
 has not advanced his money on the specific security, 
 and is entitled to his debtor's real interest alone, viz., 
 his interest, subject to his equities as they existed 
 at the date of the judgment. 2 In accordance with this 
 
 1 See Green . Givan, 33 N. Y. 343. 
 
 2 The rule is the same in the United States generally, in the absence of 
 atatutory regulation : Note to Basset v. Nosworthy, 2 Lead. Gas. Eq. 1.
 
 OF PRIORITIES, ETC. 317 
 
 principle, it has been decided that the rights of a cestui 
 que trust, of a purchaser for value by imperfect conveyance 
 or executory contract, and of a mortgagee by deposit of 
 deeds, have priority over a judgment of a later date, 
 against the trustee, vendor, or mortgagor, notwithstanding 
 that by means of an elegit, the judgment may have been 
 clothed with the legal estate, (g) Nor is this doctrine 
 affected by the late statute, transforming a judgment into 
 a charge by contract. For the statute treats the legal 
 estate as separate from the equitable interest, and makes 
 each of them subject to the judgments against their re- 
 spective 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, (h) 
 
 The second rule of superior equity is, that "the equity 
 *of a party who has been misled, is superior to r*i cn-i 
 his who has wilfully misled him." 
 
 This rule is, in fact, merely a specific application of the 
 general doctrine of law with respect to fraud, where the 
 fraud complained of is a representation, express or im- 
 plied, false within the knowledge of the party making 
 it.(z') Its effect, however, on the priority of conflicting 
 equities, renders it proper to be noticed here. 
 
 ( g) Newlands . Paynter, 4 M. & C. 408 ; Lodge v. Lyseley, 4 Sim. 70 ; 
 Langton v. Horton, 1 Hare 549, 560 ; Whitworth v. Gaugain, 3 Id. 416 ; 1 
 Ph. 728. 
 
 (K) 1 & 2 Viet. c. 110 ; Whitworth v. Gaugain, 3 Hare 416 ; 1 Ph. 728. 
 
 (i) Infra, Rescission of transactions on the ground of fraud. 
 
 In Cadbury v. Duval, 1 Am. Law Reg. 105 (affirmed on appeal), the doc- 
 trine was applied to a creditor by judgment for contemporaneous ad-
 
 318 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 post- 
 poned to the party misled, and compelled to make his 
 representation specifically good. If, therefore, a person, 
 intending to buy an estate or to advance money on it, in- 
 quires of another whether he has any encumbrance 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 claim- 
 ant. 1 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, (&) 2 
 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 improvements 
 having been made in error, where such error was not 
 abetted by himself creates no equity for reimbursement 
 of their expense. (/) 
 
 (k) 3 Sug. V. & P. 429 ; Nicholson v. Hooper, 4 M. & C. 179. 
 
 (1) Pilling 0. Armitage, 12 Ves. 78, 84 ; Cawdor . 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. 
 
 1 Otis v. Sill, 8 Barb. S. C. 102 ; Lesley v. Johnson, 41 Barb. 359 ; Lee 
 v. Kirkpatrick, 1 McCart 264 ; Crocker v. Crocker, 31 N. Y. 507 ; Chap- 
 man v. Hamilton, 19 Ala. 121 ; Folk v. Beidelham, 6 Watts 339 5 McKelvey 
 v. Truby, 4 W. & S. 323. It has been held, however, that a party will 
 not be postponed on the ground of silence alone, where his title is upon 
 record : Gouudie v. Northampton Co., 7 Penn. St. 239 ; Knouff v. Thomp- 
 son, 16 Id. 361 ; Hill v. Epley, 31 Id. 331 ; Clabaugh v. Byerly, 7 Gill 354. 
 Neither infancy nor coverture will excuse parties guilty of fraudulent 
 concealment: Schmithermen . Eisernan, 7 Bush (Ky.) 298. 
 
 2 Carr v. Wallace, 7 Watts 400.
 
 OF PRIORITIES, ETC. 319 
 
 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 r*i 51*1 ' 
 which amounts to evidence of an intent to de- 
 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. 1 It may, however, ex- 
 clude 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 
 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 primd 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 pro- 
 
 (m) Evans v. Bicknell, 6 Ves. 174 ; Martinez v. Cooper, 2 Russ. 198. 
 
 1 A legal mortgagee will be postponed on account of not retaining the 
 title deeds: when he displays fraud, or gross or wilful negligence, or when 
 he gives up the deeds to the mortgagor for the express purpose of raising 
 a sum of money, and thus puts it in the power of the latter to raise, a 
 larger sum : Perry Herrick r. Attwood, 2 De G. & J. 21 (see Lloyd v. Att- 
 wood, 3 De G. & J. 614) ; Waldron v. Sloper, 1 Drewry 193. But where 
 there is no such negligent and deliberate action on the part of the mort- 
 gagee, he will not be postponed : Hewitt v. Loosemore, 9 Hare 449 ; Colyer 
 r. Finch, 5 House Lds. Cas. 905. See also, Dowle v. Saunders, 2 Hem. & 
 M. 242.
 
 320 ADAMS'S DOCTRINE OF EQUITY. 
 
 perty ; and therefore, if such possession be left in an 
 assignor, it is primd facie a badge of fraud in the assign- 
 ment, though subject to be rebutted by counter proof, (n) 1 
 The third, and most important rule of equity is, that 
 "a party taking with notice of an equity takes subject to 
 that equity." 2 
 
 (n) Twyne's Case, 3 Hep. 80 ; Manton v. Moore, 7 T. R. 67 ; Leonard v. 
 Baker, 1 M. & S. 251 ; Arundell v. Phipps, 10 Ves. 139, 145 ; Martindale 
 v. Booth, 3 B. & Ad. 498. 
 
 1 Twyne's Case, 1 Sm. Lead. Gas. 33, 6th Am. ed. 
 
 2 The subject of notice will be found discussed in the notes to Le Neve 
 v. Le Neve, 2 Lead. Gas. Eq. 23. Notice may be either actual or construct- 
 ive. Actual notice arises from distinct knowledge or means of knowledge ; 
 constructive notice springs from a presumption of law which fastens know- 
 ledge upon a person conclusively supposed to be affected by the notice. 
 Instances of the former are not needed ; of the latter, the notice afforded by 
 the recording acts is an illustration. Notice must be certain, and not vague : 
 Massie v. Greenhow, 2 P. & H. 255 ; Williamson v. Brown, 15 N. Y. 354-364. 
 It must be clear enough to put a party on inquiry, and enable him to prose- 
 cute that inquiry to a successful termination : Kerns v. Swope, 2 Watts 78. 
 If this is done, it will be sufficient : Hawley v. Cramer, 4 Cow. 717 ; Pearson 
 v. Daniel, 2 Dev. & Bat. Ch. 360 ; Sigourney v. Munn, 7 Conn. 324 ; Booth 
 v. Barnum, 9 Id. 286 ; Peters v. 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. 233 ; 
 Benzein v. Lenoir, 1 Dev. Ch. 225. And the notice need not be distinct 
 and formal, for if a purchaser has the means of knowledge he cannot 
 wilfully neglect them, but will be affected with notice : Graff v. Castleman, 
 5 Randolph 195 ; Pendleton v. Fay, 2 Paige 202 ; Doyle v. Teas, 4 Scam. 
 202 , Cook v. Gaiza, 14 Tex. 201 ; Wilson v. Miller, 16 Iowa 111 ; Tilling- 
 hast v. Champlin, 4 R. Island 173, 215; Price v. McDonald, 1 Md. 403 ; 
 Hoxie v . Carr, 1 Summer 193 ; Harper v. Reno, 1 Freem. Ch. 323 ; Green 
 v. Slayter, 4 J. C. R. 47 ; Kerns v. Swope, 2 Watts .78 ; Churcher v. Guern- 
 sey, 39'Penn. St. 84; Flagg v. Mann, 2 Sum. 486 ; Hackwith v. Damron, 
 1 Mon. 327 ; Miller v. Shackleford, 2 Dana 264 ; Billington's Lessee v. 
 Welsh, 5 Binn. 132 ; 2 Lead. Cas. Eq. 154 ; Allen v. McCalla, 25 Iowa 464 ; 
 Bell v. Twilight, 18 N. H. 159 ; Parker v. Foy, 43 Miss. 260. The notice 
 should come from parties interested, and vague representations by strangers 
 will have no effect : Butler v. Stevens, 26 Maine 484 ; The City Council v. 
 Page, 1 Spear's Eq. 159 ; Barnhart v. Greenshields, 28 Eng. L. & Eq. 77. 
 But full and direct information, even from a stranger, cannot be disre-
 
 OF PRIORITIES, ETC. 321 
 
 The meaning of this doctrine is, that if a person acquir- 
 ing property has, at the time of acquisition, 1 notice of a 
 
 garded : Ripple v. Ripple, 1 Rawle 386. Notice to an agent is of course 
 notice to the principal, but it must as a general rule be in the course of 
 the same transaction. See Hill on Trustees 165, and notes ; post 157, note. 
 And notice to one of several trustees is notice to all : see Willes v. Green- 
 hill, 29 Beav. 376 ; also Brazelton v. Brazelton, 16 Iowa 417. A purchaser 
 who is bound to take notice of a deed will be affected with notice of every- 
 thing that appears upon its face : note to Le Neve v. Le Xeve, 2 Lead. 
 Gas. Eq. 169, and cases cited ; George v. Kent, 7 Allen 16 ; Montefiore p. 
 Browne, 7 House of Lords Cas. 241. See Hetherington v. Clark, 30 Penn. 
 St. 393. And where it is the duty of a person to demand the production 
 of title-deeds, he will be held to have notice of all the facts of which the 
 production would have informed him : Peto v. Hammond, 30 Beav. 509 ; 
 Kellogg v. Smith, 26 N. Y. 18. Possession is notice, because it ought to 
 put parties upon inquiry : Krider v. Lafferty, 1 Whart. 303 ; see Patton v. 
 The Borough, 40 Penn. St. 206 ; Hughes v. United States, 4 Wall. S. C. 232 ; 
 Morrison i\ March, 4 Minn. 422 ; Bank of Newbury v. Eastman, 44 N. H. 
 431 ; Warren v. Richmond, 53 111. 52; Perkins v. Swank, 43 Miss. 349 ; 
 and even when the possession is not exclusive: Boggs v. Anderson, 50 
 Maine 161 : Hill on Trustees 798, note (4th Am. ed.). A bond fide pur- 
 chaser will not be affected by the notice of his vendor: Demarest v. Wyn- 
 koop, 3 John. Ch. 147 ; and on the other hand a purchaser who has notice 
 will, as a general rule, be protected by the want of notice on the part of 
 his vendor : Curtis v. Lunn, 6 Munf. 42 ; Lindsey v. Rankin, 4 Bibb 482 ; 
 Bumpus r. Plainer, 1 John. Ch. 213 ; McNitt v. Logan, Litt. Sel. Cas. 69 ; 
 Wood v. Chapin, 13 N. Y. 509 ; Webster v. Van Steenbergh, 46 Barb. 211 ; 
 Hagthorp c. Hook's Adm'r., 1 G. & J. 273. And the same rule applies to 
 cases of constructive notice under the recording acts : American note to 
 Le Neve v. Le Neve, 2 Lead. Cas. Eq. 184. 
 
 1 In England and some of the United States, the rule is that notice be- 
 fore the execution of the conveyance, though after payment of the purchase- 
 money, is sufficient. But in others, as Pennsylvania, Virginia and Iowa, 
 the notice must be before payment of the purchase-money : Hill on Trus- 
 tees (4th Am. ed.) 259; notes to Basset v. Nosworthy, 2 Lead. Cas. 1 ; 
 Barney v. McCarty, 15 Iowa 514. 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 pro tanto : Juvenal v. Jackson, 
 14 Penn. St. 519 ; Frost v. Beekman, 1 John. Ch. 288 ; Flagg v. Mann, 2 
 Sumn. 486 ; Paul v. Fulton, 25 Missouri 156 ; but compare Fraim v. 
 Frederick, 32 Texas 294. See note to Basset . Nosworthy, ut sup. To 
 entitle a party to the status of a bond fide purchaser, without notice, there 
 21
 
 322 ADAMS'S DOCTRINE OF EQUITY. 
 
 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. 
 
 r#i f^on 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 con- 
 tracted to sell, with notice of such prior contract, is bound 
 to convey to the claimant under it ; and the purchaser 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 law run with the 
 land, does not appear to be positively settled. If, how- 
 ever, 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 presumed to have con- 
 tracted for it, subject to that modification, (o) 1 
 
 It will be observed, that the notice required by this 
 doctrine is a notice of an equity, which if clothed with 
 
 (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. 
 
 must be a want of notice both at the time of the purchase and at the time 
 of payment: Blanchard v. Tyler, 12 Mich. 339 
 
 1 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 Spencer's Case ; and the case 
 has been followed frequently since. See Coles v. Sims. 5 De G., M. & G. 
 I ; Wilson v. Hart, L. R. 1 Ch. Ap. 463 ; Western v. MacDermott, L. R. 2 
 Ch. Ap. 72.
 
 OF PRIORITIES, ETC. 323 
 
 legal completeness would be indefeasible, and not merely 
 notice of a defeasible legal interest, or of an interest, 
 which, if legal, would be defeasible. For the principle is, 
 that an interest, which if legal, would be indefeasible, 
 shall not be defeated by reason of its equitable character, 
 by a party who has notice of it. If, being legal, it may 
 be defeated at law, there is no equity to preserve it. 
 
 Instances of the first class will be found in trusts and 
 contracts, including the lien of a vendor of real estate 
 and in judgments against .the owners of an equitable 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 
 was until *recently an exception to this rule. We r#iKq-i 
 have already seen that by an anomalous distinc- 
 tion in the law of trusts, the widow was excluded from 
 dower in a trust estate, although she would have been en- 
 titled to it in a legal one of the same character. The 
 same distinction was continued in respect to notice ; and 
 it was held, that although the mere existence of an out- 
 standing term would not exclude the widow in favor of the 
 husband's heir, yet it would exclude 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 
 
 (p) Langley v. Fisher, 9 Bea. 90 ; Story v. Windsor, 2 Atk. 630.
 
 324 ADAMS'S DOCTRINE OF EQUITY. 
 
 which the purchaser had db initio a right to nullify ; (q] 
 and in voluntary conveyances avoided by subsequent 
 alienation for value ; (r) for in all these cases the legal 
 right of the claimant is legally defeasible, and he has no 
 independent equity to 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, 1 all deeds and wills con- 
 cerning estates within the North, (s) East,(Y) or West(w) 
 Ridings of the county of York, or within the town and 
 county of Kingston-upon-Hull, (v) or within the county of 
 Middlesex, are directed to be register ed.(w) 2 And it is 
 
 (q) Lufkin v. Nunn, 11 Ves. 170 ; 3 Sug. V. & P. 441. 
 
 (r) Pulvertoft v. Pulvertoft, 18 Ves. 84 ; Buckle v. Mitchell, Id. 100. 
 
 (s) 8 Geo. 2, c. 6. (t) 6 Ann. c. 35. 
 
 (u) 2 & 3 Ann. c. 4 ; 5 Ann. c. 18. (9) 6 Ann. c. 35. 
 
 (w) 7 Ann. c. 120. 
 
 1 Two acts have been recently passed in England in regard to real 
 estate, which ought to be noticed here. The Stat. 25 & 26 Yict. c. 67 pro- 
 vides for an examination of title by the Court of Chancery, and a declara- 
 tion thereupon ; and Ch. 53 of the same statute furnishes a system of 
 registration for such titles as, after official investigation, appear good and 
 marketable. 
 
 2 The rule under the recording acts, 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 claiming 
 under the grantor, any title held by him at the time of conveyance : 4 
 Kent's Com. 174 ; American notes to Le Neve v. Le Neve, 2 Lead. Gas. 
 Eq., p. i., 178, and cases cited, among which are Cushing v. Ayer, 25 Maine 
 383 ; McMechan v. Griffing, 3 Pick. 149 ; Peters v. Goodrick, 3 Conn. 146 ; 
 Parkist v. Alexander, 1 J. C. 394 ; Wendell v. Wadsworth, 20 John. 663 ; 
 Plume v. Bone, 1 Green 63 ; Evans v. Jones, 1 Yeates 174 ; Irrin v. Smith, 
 17 Ohio 226 ; Martin v. Sale, Bail. Eq. 1 ; Shults v. Moore, 1 McLean 520; 
 Hughes v. Edwards, 9 Wheat. 489 ; Hickman v. Perrin, 6 Cold. (Tenn.) 
 135 ; Digman v. McCollum, 47 Mo. 372. This does not apply, however,
 
 OF PRIORITIES, ETC. 325 
 
 enacted, that all such deeds shall be adjudged fraudulent 
 and void against any subsequent purchaser or mortgagee 
 
 where the recording of an instrument is not legally requisite, or it is de- 
 fectively executed or acknowledged : cases in notes to Le Neve . Le Neve, 
 ut supra ; Moore v. Auditor, 3 Hen. & Munf. 232; Sumner . 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 r. Samuel, 1 Dana 
 166 ; Pitcher v. Barrows, 17 Pick. 361 ; Thomas . Grand Gulf Bank, 
 
 9 Sm. & M. 201 ; Green v. Drinker, 7 W. & S. 440 ; Shults . Moore, 1 
 McLean 520; Brown v. Budd, 2 Carter (Ind.) 442; Choteau v. Jones, 11 
 Illinois 300 ; Work v. Harper, 24 Miss. 517 ; Pope v. Henry, 24 Verm. 
 560 ; Lally v. Holland, 1 Swan 396 ; Parret v. Shaubhut, 5 Minn. 323 ; 
 Racouillat v. Rene, 32 Cal. 450 ; nor where it is recorded in a different 
 county from that in which the lands lie : Aster v. Wells, 4 Wheat. 466 ; 
 Kerns v. Swope, 2 Watts 75 ; or, d 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 . Moore, 14 How. U. S. 253 ; U. S. Bank 
 v. Lee, 13 Peters 107; Crenshaw v. Anthony, M. & Y. 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 vajid as 
 
 > against creditors and purchasers in another state, into which the property 
 is afterwards removed : though see Hundley v. Mount, 8 Sm. <fc M. 387. 
 The record also is not notice to those not claiming title under the 
 same grantor: Stuyvesant P. Hall, 2 Barb. Ch. 151 ; Lightner . Mooney, 
 
 10 Watts 412 ; Woods v. Farmere, 7 Id. 282; Bates v. Norcross, 14 Pick. 
 224 ; Crockett v. Maguire, 10 Mo. 34 ; Tiltoa v. Hunter, 24 Maine 29 ; 
 Leiby v. Wolfe, 10 Ohio 80 ; Hoy . Bramhall, 4 Green (N. J.) 563 ; Igle- 
 hart . Crane, 42 111. 261 ; Calder . Chapman, 52 Penn. St. 359. An un- 
 recorded deed, is in general, good between the parties : 4 Kent 456, cases 
 cited. And where a subsequent purchaser has knowledge of the exist- 
 ence 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. 163 ; Porter . Cole, 4 Maine 20; Farnsworth 
 . Childs, 4 Mass. 637; Martin v. Sale, Bail. Eq. 1; Corry v. Caxton, 4 
 Binn. 140 ; Speer v. Evans, 47 Penn. St. 141 ; Pike v. Armstead, 1 Dev. 
 Eq. 110; Vanmeter r. McFaddin, 8 B. Monr. 442; Ohio Ins. Co. r. Led- 
 yard, 8 Ala. 866 ; McRavent?. Maguire, 9 Sm. & M. 34 ; McConnell v. Read, 
 4 Scam. 117 ; Dearing v. Lightfoot, 19 Ala. 28 ; McCullough v. Wilson, 21 
 Penn. St. 436 ; Center v. P. & M. Bank, 22 Ala. 743 ; Gibbes v. Cobb, 7 
 Rich. Eq. 54 ; notes to Le Neve r. Le Neve, ut supra ; Conover v. Von Ma- 
 ter, 3 Green, (N. J.) 481 ; Nice's Appeal, 54 Penn. St. 200. Though a
 
 326 ADAMS'S DOCTRINE OF EQUITY. 
 
 r*i KI-I f r valuable ^consideration, unless a memorial 
 thereof be registered, in the manner thereby pre- 
 
 mortgage is falsely recited in the records, it is notice of the actual mort- 
 gage : Smallwood v. Lewin, 2 McCarter (N. J.) 60. Recital of one un- 
 registered in a registered one is sufficient notice : Hamilton v. Nutt, 34 
 Conn. 501. But see in Ohio as to mortgages, Mayham v. Coombs, 14 
 Ohio 428. In regard to judgment creditors, and purchasers at sales 
 under judgments, actual notice is, without doubt, too late after judgment 
 obtained, and, it would seem, after the status of creditor has been ac- 
 quired : Davidson v. Cowen, 1 Eq. 470; Uhler v. Hutchinson, 23 Penn. St. 
 110, overruling Solrns v. McColloch, 5 Id. 473 ; American note to Bassett 
 v. Nosworthy, 2 Lead. Gas. in Eq. 111. See, also, Benham v. Keane, 1 
 Johns. & H. 685; Barker v. Bell, 37 Ala. 354. Under the statute 
 in Iowa, however, the rule is different ; see Seevers v. Delashmutt, 
 11 Iowa 174; Parker v. Pierce, 16 Id. 227 ; Hays v. Thode, 18 Iowa 51. 
 But the authorities are at variance with regard to the character of the 
 notice which will postpone a recorded 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 Meve, ut supra ; Fleming v. Burgin, 
 2 Ired. Eq. 584 ; Ohio Ins. Co. v. Ross, 2 Md. Ch. Dec. 35) ; on which 
 alone, it is supposed, the Act of Parliament could be broken in upon ; 
 and therefore, require clear proof of actual notice, which is considered 
 equivalent to fraud : Chadwick v. Turner, L. R. 1 Ch. 310. In some of 
 the states this doctrine has been adopted, and constructive notice is held 
 to be insufficient : Norcross v. Widgery, 2 Mass. 509 ; Bush v. Golden, 17 
 Conn. 594 ; Harris v. Arnold, 1 Rhode Island 125 ; Frothingham v. Stacker, 
 11 Mo. 77 ; Martin v. Sale, Bail. Eq. 1 ; Fleming v. Burgin, 2 Ired. Eq. 
 584 ; Ingram v. Phillips, 5 Strobh. 200 ; see Burt v. Cassedy. 12 Ala. 734 ; 
 McCaskle v. Amarine, 12 Id. 17 ; Hopping v. Burnham, 2 Green (Iowa) 
 39. Thus, possession of the prior grantee, except, perhaps, where dis- 
 tinctly brought home to the knowledge of the purchasers, is held to be in- 
 sufficient : Harris v. Arnold ; Frothingham v. Stacker. In oilier states, 
 there are statutory provisions to the same effect : Spofford v, Weston, 29 
 Maine 140 ; Butler v. Stevens, 26 Id. 489 ; Curtis v. Mund, 3 Mete. 405 5 
 Hennessey v. Andrews, 6 Gush. 170. In Pennsylvania and New York, 
 the decisions are not consistent. In Scott v. Gallager, 14 S. & R. 333, and 
 Boggs v. Varner, 6 W. & S. 469, the language of the court is in accord- 
 ance with the doctrine just stated. But there is no doubt that in the 
 former state, open and notorious possession is sufficient notice of an un" 
 recorded deed : Krider v, Lafferty, 1 Whart. 303 ; Randall v . Silverthorn, 
 4 Penn. St. 173 ; Patton v. The Borough, 40 Id. 206. So in New York,
 
 OF PRIORITIES, ETC. 327 
 
 scribed, before the registering of the memorial of the deed 
 under which such subsequent purchaser or mortgagee shall 
 claim. And that all devises by will shall be adjudged 
 fraudulent and void against subsequent purchasers or 
 mortgagees, unless a memorial of such will be registered 
 within the space of six months after the death of the tes- 
 tator, 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 pro- 
 vided, that no statute, judgment, or recognisance (other 
 than such as shall be entered into the name and upon the 
 proper account of the King, his heirs, and successors), 
 shall bind any such estates as aforesaid, but only from the 
 time that a memorial thereof shall be duly entered, (x] 
 The question which has arisen under these acts is, 
 
 (*) 3 Sug. V. & P. c. xxi., s. 5. M 
 
 Tuttle v. Jackson, 6 Wend. 213, has established, contrary to Dey v. Bun- 
 ham, 2 J. C. 182, and other cases, that constructive notice is enough to 
 postpone a subsequent purchaser. See Troup . Hurlbut, 10 Barb. S. C. 
 354. And in Grimstone v. Carter, 3 Paige 421, it was held in general, 
 that equities and agreements to convey, were not within the recording 
 acts. In Maryland, in the case of Price v, McDonald, 1 Md. 414, a simi- 
 lar doctrine was held by the Court of Appeals ; though in Ohio Ins. Co. 
 v. Ross, 2 Md. Ch. Dec. 35, and Gill v. McAttee, Id. 268, the English rule 
 was supported and followed by Chancellor Johnson. That possession is 
 notice, has been also held in Webster v. Maddox, 6 Maine 256 ; Kent v. 
 Plummer, 7 Id. 464 (before the statute referred to above) ; Boggs v. An- 
 derson, 50 Id. 161 ; Buck v. Halloway, 2 J. J. Marsh. 163 ; Hopkins v. 
 Garrard, 7 B. Monr. 312; Colby v. Kenniston, 4 N. H. 262; Williams v. 
 Brown, 14 111. 200; Morrison v. Kelly, 22 Id. 610; Wyatt v. Elam, 19 
 Geo. 335 ; Vaughan v. Tracy, 22 Mo. 4 ; see, also, Bell v. Twilight, 2 
 Foster (N. H.) 500; Griswold v. Smith, 10 Verm. 452; and in Landes v. 
 Brant, 10 How. U. S. 348 ; where, indeed, the point was considered to be 
 unquestioned. This, however, is a mistake. This subject is treated of 
 with great ability and acuteness in notes to Le Neve v. Le Neve, ut supra, 
 where the cases will be found collected. See, also, Hart . The Farmers' 
 Bank, 33 Verm. 252.
 
 328 ADAMS'S DOCTRINE OF EQUITY. 
 
 whether a person buying an estate with notice of a prior 
 encumbrance, not registered, shall be bound in equity by 
 such encumbrance, although he has obtained a priority at 
 law by registration of his deed. 1 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 encumbrances, he registered 
 in order to defraud them. A mere Us 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 com- 
 pleteness, it is difficult to see why the same degree of 
 PM rr-i *notice, which would bind in other cases, should 
 not bind in this.(y) 
 
 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 
 that no undocketed judgment should affect any lands or 
 tenements as against purchasers or mortgagees, (z) The 
 first decision in favor of the undocketed judgments was, 
 that if the purchaser had notice of it, and did not pay 
 
 (y) Jolland v. Stainbridge, 3 Ves. 478 ; Wyatt v. Barwell, 19 Id. 435 ; 
 3 Sug. V. & P. 372-3 ; Tyrrell's Suggestions 230. 
 (z) 4 & 5 Wm. & Mary, c. 20 ; 7 & 8 Wm. 3, c. 36. 
 
 1 Butler v. Viele, 44 Barb. (N. Y.) 166.
 
 OF PRIORITIES, ETC. 329 
 
 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 El- 
 don, on a bill for specific performance, where the pur- 
 chaser had notice of undocketed judgments. Lord El- 
 don 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 per- 
 haps attended with the more difficulty, because the un- 
 docketed judgment is only an invalid title by an act of 
 law, and is not, like an unregistered conveyance, evidence 
 of a title by contract in equity, (a) The doctrine itself, 
 however, is now at an end. The system of dockets has 
 been abolished, a new method of registration substi- 
 tuted ;(#) and it is declared that notice shall be imma- 
 terial.^) 
 
 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. 1 This rule assumes that the trustee is expressly 
 or impliedly authorized to sell, and that he does not, so 
 far as *the purchaser is aware, intend to misapply p^-. ^ -, 
 the price. For if either of these ingredients be 
 wanting, the purchaser, having notice of a breach of trust 
 committed or intended, would be obviously responsible 
 
 (a) Davis v. Sfcrathmore, 16 Ves. 419 ; 2 Sug. V. & P. 394. 
 
 (6) 1 & 2 Viet. c. 110. (c) 3 & 4 Viet. c. 82. 
 
 1 By statute 23 & 24 Viet. (1860) c. 145, g 29, it is provided that the re- 
 ceipts in writing of any trustee for any money payable to him in the 
 exercise of his trust shall be a sufficient discharge, and shall exonerate the 
 purchaser from seeing to the application of the purchase-money.
 
 330 ADAMS'S DOCTRINE OF EQUITY. 
 
 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. 1 If the trust be to pay 
 it over to other persons, he must see that such payments 
 are made ; if it be to invest the amount in the names of 
 the trustees, he must see that the investment is duly 
 made, though he need not interfere with its subsequent 
 application, (e) In order to obviate this inconvenience, it 
 is usual to declare by an express clause, that the trustee's 
 receipt shall be a discharge ; and a corresponding autho- 
 
 (d) Watkins v. Cheek, 2 S. & S. 199 ; Eland r. Eland, 4 M. & C. 420, 427. 
 
 (e) 3 Sug. V. & P. 158. 
 
 1 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. Macon, 6 
 Call 308 ; Bruch v. Lantz, 2 Rawle 392 ; Cadbury v. Duval, 10 Penn. St. 
 267 ; Dalzell v. Crawford, 1 Pars. Eq. 57 ; Hauser v. Shore, 5 Ired. Eq. 
 357 ; Gardner v. Gardner, 3 Mason 178 ; Andrews v. Sparhawk, 13 Pick. 
 393 ; Nicholls v. Peak, 1 Beas. 69. 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 Hainm. 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 the purchase-money : Gardner v. Gard- 
 ner, 3 Mason 178 ;' Cadbury v. Duval, 10 Penn. St. 267 ; Dalzell v. Craw- 
 ford, 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 Elliott v. Mer- 
 ryman, 1 Lead. Cas. Eq. 45, as to devises for payment of debts. It has also 
 been doubted by Mr. Wallace, ut sup., whether, under a devise for the pay- 
 ment of legacies simply, the rule would be applied in this country, inas- 
 much as the debts of a decedent are always an implied charge on land here, 
 and therefore it is supposed such a charge would be equivalent to a devise 
 for the payment 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 
 Duffy 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 purchase- 
 money under such circumstances. See on this subject Hill on Trustees, 
 pp. 342-363.
 
 OF PRIORITIES, ETC. 331 
 
 rity 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 discharge, for the money cannot be 
 paid to any other person. (/) The same assumption is 
 made on a trust for general payment of debts, or for pay- 
 ment 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 neces- 
 sarily 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, ij^ir price is ne- 
 cessarily applicable in a course of administration, which 
 is tantamount to a trust for general payment of debts. 
 And it is, therefore, settled that such a purchaser is not 
 bound to see to the application of the purchase-money, 
 when he ^'purchases bond fide, and without notice r* 157-1 
 that there are no debts, (k) 1 
 
 (/) 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. 
 (A) 2 Sug. V. & P. c. xvii., s. 2. 
 
 1 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 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 deter- 
 mining whether there were any debts or not : Stroughill v. Anstey, 1 Po 
 G., M. & Gord. 635. See article in 17 Jurist, part IK, 251 ; Hill ou 
 on Trustees 553, note, 4th Am. ed.
 
 332 ADAMS'S DOCTRINE OF EQUITY. 
 
 The only remaining question as to notice is what degree 
 of information will amount to notice. 1 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 con- 
 tinued in remembrance. ({) Where, however, a solicitor had 
 obtained for himself an estate from a client, by fijaud, 
 and afterwards on his selling it acted as the purchaser's 
 solicitor, it was considered by Lord Brougham, in opposi- 
 tion to Sir John Leach, that as the solicitor had in fact 
 defrauded both parties, the purchaser could not, from the 
 mere circumstance of his having employed the same so- 
 licitor, be held to have notice of the fraud, any more than 
 the party on whom it was first committed. (A') 2 
 
 The ordinary instances of notice by actual information 
 do not require any special remark. But it should be ob- 
 served, that under this head is included notice by Us pen- 
 dens or an interlocutory decree. 3 For it is presumed 
 
 (i) Fuller . Bennett, 2 Hare 394. 
 (k) Kennedy v. Green, 3 M. & K. 699. 
 
 1 See on the subject of notice, notes to Le Neve v. Le Neve, 2 Lead. 
 Cas. Eq. 23. 
 
 1 Knowledge acquired by an agent, in the course of his agency, is notice 
 to the principal : Hough v. Richardson, 3 Story 660 ; Bowman v. Wathen, 
 1 How. 195 5 Astor v. Wells, 4 Wheat. 466 -, Westervelt v. Haff, 2 Sandf. 
 Ch. 98 ; Watson v. Wells, 5 Conn. 468 ; Bracken v. Miller, 4 W. & S. 108. 
 See Hood v. Fahnestock, 8 Watts 489. But it must generally be acquired 
 .in the same transaction: Bracken v. Millar, 4 W. & S. Ill 5 Henry . 
 Morgan, 2 Binn. 497 ; Martin v. Jackson, 27 Penn. St. 404. See Smith's 
 Appeal, 47 Penn. St. 128 ; Espin . Pemberton, 3 De G. & J. 547. Where 
 the agent acts for both parties, it is notice to the purchaser : Sergeant v. 
 Ingersoll, 15 Penn. St 343 ; 7 Id. 340. 
 
 Murray v. Ballou, 1 John. Ch. 566 ; Murray . Lylburn, 2 Id. 441 ; 
 Zeiter v. Bowman, 6 Barb. S. C. 133 ; Owongs v. Myers, 3 Bibb 279 ; 
 Boiling v. Carter, 9 Ala. 921 ; Green . White, 7 Blackf. 242 ; Tongue .
 
 OF PRIORITIES, ETC. t 333 
 
 that legal proceedings during their continuance, are pub- 
 lically known throughout the realm.' But no Us pendens, 
 
 Morton, 6 Harr & John. 21 Walker v. Butz, 1 Yeates 574 ; Diamond p. 
 Lawrence Co., 37 Penn. St. 353. 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 Rand. 93 ; City Council v. Page, Spear's Eq. 159. In King v. Bill, 28 
 Conn. 593, it was doubted whether the doctrine of notice by Us pendens. 
 obtains in Connecticut. The principle of Us 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 . Mew, 1 Strobhart's 
 Eq. 180. See Green v. Slayter, 4 John. Ch. 38 ; but the doctrine does not 
 apply in a case where the Court has no jurisdiction of the thing in contro- 
 versy : Carrington v. Brents, 1 McLean 167 ; and it a'pplies 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 imme- 
 diate subject of the suit: Edmonds v. Crenshaw, 1 McC. Ch^252; and the 
 property affected must b definitely described : Miller v. Shwry, 2 Wallace 
 S. C. 250 ; 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 : Griffiths. Griffith, 1 Hoff. Ch. 153; and a suit 
 not prosecuted to decree or judgment, is not constructive notice to a person 
 who is not a 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. 566; Goodwin v. McGehee, 15 Ala. 232; 
 Lytle v. Pope, 11 B. Monr. 318. Publication as to a non-resident defendant 
 is equivalent to service of subpoena : Chaudron v. Magee, 8 Ala. 570. 
 Notice, however, by Us ptndens, cannot continue after a final decree or 
 judgment: Blake v. Heyward, 1 Bailey's Eq. 208; Turner v. Crebill, 1 
 Ohio 372; Winborn v. Gorrell, 3 Ired. Eq. 117. See on this subject Hill 
 on Trustees, 4th Am. ed., 794 ; notes to Le Neve v. Le Neve, 2 Lead. Cas. 
 Eq. 23. The doctrine of Us pendens has been recently considered in the 
 Court of Appeal in England, and finally decided not to stand on the ground 
 of notice express or implied, but to follow from the general rule that pend- 
 ing litigation, 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.
 
 334 ADAMS'S DOCTRINE OF EQUITY. 
 
 of which a purchaser has not express notice, will now 
 bind him, unless it be duly registered. (I) On the other 
 hand, a final decree or judgment is not notice ;(m) nor a 
 fiat in bankruptcy > (n) nor the Court Rolls of a manor ;(o) 
 nor the registration of a deed; nor the docketing or the 
 registration of a judgment. But if it appear that a search 
 was actually made, it will be presumed that the entry 
 was found, and the purchaser will be affected with notice 
 I~*1 ^81 ^ ^ s con t' en t- s - *In the absence of any actual 
 information of the equity, the party may also be 
 affected with notice by information of any fact or instru- 
 ment relating to the subject-matter of his contract, which 
 if properly inquired into would have led to its ascertain- 
 ment. 1 If, for instance, he purchases land which he 
 knows to be in the occupation of another than the 
 vendor, he is bound by all the equities of the party in 
 occupation. 
 
 If he knows that the title deeds are in another man's 
 possession, he may be held to have notice of their pos- 
 sessor's claim on the estate. If he knows of any instru- 
 ment, forming directly or presumptively a link in the title 
 he will be presumed to have examined it, and therefore to 
 have notice of all other instruments or facts to which an 
 examination of the first could have led him. But he can- 
 not be presumed to have examined instruments which are 
 not directly or presumptively connected with the title, 
 merely because he knows that they exist, and that they 
 
 (1} 3 Sug. V. & P. 458 ; Shallcross fDixon, 5 Jarm. on Conveyancing 
 493 ; 2 Viet. c. 11, s. 7. 
 (m) 2 Sug. V. & P. 461. 
 () Hithcox v. Sedgwick, 3 V. & P. 467. 
 (o) 3 V. & P. 478. 
 
 1 See notes to Le Neve, 2 Lead. Gas. Eq. ut sup.
 
 OF PRIORITIES, ETC. 335 
 
 may by possibility affect it, for that may be predicated of 
 almost 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 
 bond 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 the mortgagee. For though he may have 
 acted incautiously in taking a coveyance without them, 
 yet the other party has been equally imprudent^n taking 
 the deeds without a conveyance, and each, in the absence 
 of fraud, is at liberty to make the best use he can of his 
 imperfect title. In conformity with the same principle, 
 it seems that the mere notice of a fact, which may or may 
 not, according to circumstances, be held *in a r-^-, rq-i 
 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 undervalue, coupled with a 
 recital that it was for faithful services, was a sufficient 
 notice to the purchaser of such lease to put him on his 
 guard, (p) 
 
 We have now considered the three rules of superior 
 
 (p) Jones v. Smith, 1 Hare 43 ; 1 Ph. 244 ; West v. Reid, Id. 249 ; 
 Borell v. Dann, Id. 440 ; Kerr v. Lord Dungannon, 1 Conn. & L. 335 ; 3 
 Sug. V. & P. 468-480.
 
 336 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 analogy 
 of law, will prevail. 
 
 If there be a legal right in either party, the Court of 
 Chancery remains neutral; as, for example, if the pur- 
 chaser of property without notice of a prior equity has 
 procured a conveyance of the legal estate, either to him- 
 self or to an express trustee for him, this legal estate will 
 secure him at law, and his priority therefore will be abso- 
 lute over all claimants. 1 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, i. e., until the judgment 
 has been satisfied at the extended value, which is always 
 much below the real. It has been enacted by the late 
 statute that the duration of an elegit shall in future be 
 ascertained at law by a computation at the real, and not 
 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, (q) 
 
 The recent enactment as to the cesser of outstanding 
 terms, when they become attendant on the inheritance, 
 
 (g) 1 & 2 Viet. c. 110 ; 2 & 3 Viet. 11, s. 5. 
 
 1 Sefe Story, J., in Flagg v. Mann, 2 Sumn. 557 ; Gibler v. Trimble, 14 
 Ohio 323. In Sergeant . 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 covenant 
 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.
 
 OF PRIORITIES, ETC. 337 
 
 has *been already explained, (r) If a purchaser r*-ioA-i 
 without notice of a prior equity, fails in obtaining 
 the legal estate, he may still protect himself to some ex- 
 tent 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 possession 
 of the estate, it may serve him as a shield to protect his 
 holding, or, at all events, may so far inconvenience his 
 opponent as to compel the satisfaction of his claim, (s) If 
 he cannot obtain either a conveyance or the deeds, he 
 may take his chance of defects in his opponent's evidence, 
 and will not be compelled to answer a bill of discovery, (t) 
 
 If there be no legal right in either party, the Court of 
 Chancery cannot be neutral ; for it is the only tribunal 
 competent to take cognisance 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. 1 
 
 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 mortgagee, and by his 
 
 (r) 8 &9 Viet. c. 112, supra, Attendant Terms. 
 
 (s) Head v. Egerton, 3 P. Wins. 280, cited 2 Ves. & B. 83 ; Wallwyn v. 
 Lee, 9 Yes. 24 ; Bernard v. Drought, 1 Moll. 38. 
 , (0 3 Sug. V. & P. c. xxiv. 
 
 1 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 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, 23 L. J. Ch. 289 ; 
 2 Drew. 77. 
 22
 
 338 ADAMS'S DOCTRINE OF EQUITY. 
 
 declaration that the purchaser shall be entitled to re- 
 deem, (w). 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 effect, or by joining in the conveyance 
 of his cestui que trust, though without purporting to pass 
 p^-. -. -. his own estate. (v) Where a trust *estate in per- 
 sonalty or a chose in action is the subject, the as- 
 signment is perfected by notice to the trustee or debtor, 
 which operates as a constructive transfer of possession, (w) 1 
 If, in any of these cases, the party acquiring an equitable 
 interest neglects to perfect it in the manner pointed out, 
 he incurs the risk of some subsequent purchaser without 
 notice being more diligent, and thus acquiring a priority 
 over him. 
 
 It has been contended, that on the conveyance of a 
 trust estate in realty, notice of such conveyance may be 
 given to the trustee, and that the title will be thereby 
 perfected, so as to exclude a subsequent 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 
 
 () 3 Sug. V. & P. 422. 
 
 (v) Maundrell v. Maundrell, 10 Ves. 246, 270 ; Wilrnot v. Pike, 5 Hare 
 14,22. . 
 
 (w) Dearie v. Hall, 3 Russ. 1 ; Foster v. Cockerell, 3 01. & F. 456 ; Tim- 
 son v. Ramsbottom, 2 K. 35 ; Meux v. Bell, 1 Hare 73 ; Etty v. Bridges, 2 
 N. C. C. 486 ; Holt v. Dewell, 4 Hare 446 ; Gardners Lachlan, 4 M. & C. 
 129; Ex parte Arkwright, 3 M., D. & D. 129, 141; [Consolidated Co. v, 
 Riley, 1 <3iff. 371 ; Barr's Trusts, 4 K. & J. 219 ; Scott v. Hastings, Id. 
 633.] I 
 
 1 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-
 
 OF PRIORITIES, ETC. 339 
 
 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. (#) 
 
 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 encumbrancer, on payment of his money, be- 
 comes an honest claimant in equity, and is entitled, if he 
 can, to protect his claim. But he is not bound to look for 
 protection *until he has ascertained that danger rHJ , fi91 
 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 after- 
 wards gained; for it is in effect a judgment for all the claim- 
 ants, according to the order in which they then stand, (y) 
 
 If there be no legal right, or, in respect of equitable 
 subject-matter, no perfect equitable right in any of the 
 claimants, as, for example, if the estate be still outstand- 
 ing in the original owner, or in some third person not con* 
 stituted a trustee for any claimant individually, the claims 
 will be satisfied in order of date. (2) 
 
 (*) Peacock r. Burt, Coote on Mortgages, Appendix ; Jones v. Jones, 8 
 Sim. 633 ; Wilmot r. Pike, 5 Hare 14 ; Wiltshire r. Rabbits, 14 Sim. 76 5 
 Ex parte Knott, 11 Ves. 609, 612; 2 Sug. V. & P. 83. 
 
 (y) Brace v. Duchess of Marlborough, 2 P. Wms. 491 ; "Wortley v. Birk- 
 head, 2 Ves. 571 ; Belchier v. Butler, 1 Eden 523; Ex parte Knott, 11 Ves. 
 609, 619. 
 
 (z) Brace r. Duchess of Marlborough, 2 P. Wms. 491 ; Frere v. Moore.
 
 340 ADAMS'S DOCTRINE OF EQUITY. 
 
 The same rule seems applicable to cases where, in re- 
 specf 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 no- 
 tice has been held inapplicable to a bill for assignment of 
 dower, or for an account of tithes, although the soundness 
 of the decision has been questioned, (a) And it would 
 seem also that a bill to perpetuate testimony may be sus- 
 tained, notwithstanding that the defendant is a purchaser 
 without notice ; for such a bill asks no relief or discovery 
 from the defendant, but merely prays to secure the testi- 
 mony, which might be had at the time if the circum- 
 stances called for it.(fl) 1 
 
 8 Price 475; commented on, 3 Sug. V. & P. 81, 422; Jones" v. Jones, 8 
 Sim. 633. 
 
 (a) Collins v. Archer, 1 R. & M. 284 ; 3 Sug. V. & P. 495 ; Hare on Dis- 
 covery 98. 
 
 (b) Seaborne v. Clifton, cited 6 Ves. 263 ; 3 Sug. V. & P. 438 
 
 1 The prevailing doctrine in the United States is, that the purchaser of 
 an equitable title takes it subject to all prior equities : Snelgrove v. Snel- 
 grove, 4 Dessaus. 274; Winborn v. Gorrell, 3 Ired. Eq. 117; Shirras v. 
 Craig, 7 Cranch 48 ; Vattier v. Hinde, 7 Peters 252 ; Boone v. Chiles, 10 
 Id. 177; Hallett v. Collins, 10 How. U. S. 185; Chew v. Barnet, 11 S. 
 & R. 389 ; Kramer . Arthurs, 7 Penn. St. 165 ; Sergeant v. Ingersoll, Id. 
 347 ; s. c. 15 Penn. St. 343. And the plea of purchase without notice, 
 would not, therefore, be sufficient in such case. But the principle just be- 
 fore stated in the text (p. 160), that "if there be no legal right in either 
 party," the~t?ourt " acts on the analogy of law, and gives priority to that 
 title which most nearly approximates to a legal one," was substantially 
 followed in Bellas v. McCarty, 10 Watts 13, where a purchaser of the equi- 
 table estate in land under articles of agreement, who had recorded his 
 deed (such an interest being 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. And this was approved in Rhines 
 v. Baird, 41 Penn. St. 265, where the doctrine in Chew v. Barnet, supra, 
 was said to be contrary to the policy of the recording acts. So in Flagg 
 . Mann, 2 Sumn. 486, it was the opinion of Story, J., though the point
 
 OF PRIORITIES, ETC. 341 
 
 The maxim of non-interference between equal equities 
 is the foundation of the doctrine of Tacking in Equity. 1 
 
 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 e. 
 Xosworthy, 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 interme- 
 diate, 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 c. 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 Dessaus. 274 ; Blake v. Heyward, 1 Bail. 
 Eq. 208 ; Larrowe v. Beam, 10 Ohio 498 ; Jenkins v. Bodley, 1 Sm. & M. 
 Ch. 338 ; Wailes r. Cooper, 24 Miss. 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 Yes. 24 ; Joyce v. De Moleyns, 2 Jones 
 & Lat. 374 : Stackhouse v. The Countess of Jersey, 1 John. & H. 721 ; 
 Att.-Gen. v. Wilkins, 17 Beav. 285 ; 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 mat- 
 ter, 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 
 equitable remedy, or an equitable right, which can only be enforced in 
 this court, I am not aware of any case in which the legal title being clearly 
 established, this court refuses to enforce the equitable remedy which at- 
 taches 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 Colyer v. Finch, 5 H. L. Cas. 905. See also, Carter v. Carter, 3 K. & 
 J. 917, where the authorities are reviewed. 
 
 1 See Lloyd v. Attwood, 3 De G. & J. 614. 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. McClauachan, 2 Grat. (Va.) 280 ; Brazee and Others r. Lancaster 
 Bank, 14 Ohio 318; Osborn c. Carr, 12 Conn. 196; Chandler v. Dyer, 37
 
 342 ADAMS'S DOCTRINE OF EQUITY. 
 
 The *cases to which this doctrine applies are 
 those where several encumbrances have been 
 created on an estate, and two or more of them, not im- 
 mediately 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 encum- 
 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 separately 
 redeemed. The doctrine on this subject is, that if the 
 double encumbrancer 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 with- 
 out notice of the mesne equity. If, for 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 mortgagee, the second mort- 
 gagee would not be permitted to redeem the first mort- 
 gage, after forfeiture at law, without redeeming the third 
 also. 
 
 It is essential to the existence of this equity that there 
 shall be a legal right in the party claiming to tack, or such 
 a superior equitable right as gives him a preferable claim 
 
 Verm. 3.45; Anderson v. Neff, 11 S. & R. 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 intervening encumbrancers. See note to Marsh v. 
 Lee, 1 Lead. Gas. Eq. 494, where the cases are collected.
 
 OF PRIORITIES, ETC. 343 
 
 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 ;(e?) and that 
 the advance, in respect of which the equity is claimed, 
 shall have been made expressly or presumptively on the 
 credit of the estate without notice of the mesne equity. 
 It seems doubtful what would be the effect of such notice, 
 where a mortgage has been made for a specific sum, with 
 a clause extending the security to future advances, and 
 such future advances had been made after notice of an 
 intermediate *charge.(e) It may, however, be 
 observed, that in such a case the priority of the * 
 future advances, if sustained, would not be based on the 
 equity of tacking, but on the construction of the security 
 itself, as incorporating such advances with the original 
 loan. 1 
 
 The requirement that the moneys shall have been ad- 
 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 statute, 
 where the creditor was not previously a mortgagee, unless 
 the judgment has been matured under the statute into a 
 charge by contract, for a creditor by judgment or statute 
 
 (c) Willoughby . Willoughby, 1 Term 763 ; 3 Sug. V. & P. 83. 
 
 (d) Barnett r. Weston, 12 Ves. 130 ; Morret v. Paske, 2 Atk. 52. [See 
 Tassell v. Smith, 2 De G. & J. 713.] 
 
 (e) Gordon v. Graham, 7 Vin. Abr. 52, E. pi. 3 ; Blunden r. Desart, 2 
 Conn. &L. Ill, 131. 
 
 1 As to the incorporation of future advances in a mortgage security, see 
 ante, note to p. 110.
 
 344 ADAMS'S DOCTRINE OF EQUITY. 
 
 does not lend his money on contemplation of the land; 
 and cannot, therefore, by getting in a prior mortgage, 
 convert a personal loan into a real encumbrance. (/) It 
 is otherwise if redemption is asked by the debtor himself; 
 for then the equity of tacking is in the nature of an equit- 
 able elegit, and is the proper method of enforcing 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 
 
 P1651 
 
 J devisee has aliened the equity of redemption, it 
 
 is not assets in the hands of the alienee, and the mort- 
 gage may be redeemed alone, (h) 
 
 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 ease, neither 
 the mortgagor, nor any person making title under him, 
 can after forfeiture redeem one without redeeming both.(^) 1 
 
 (f) Brace v. Duchess of Marlborough, 2 P. Wins. 491 ; Baker v. Harris, 
 16 Ves. 397 '; Ex parte Knot, 11 Id. 609, 617. 
 
 (g) Supra. Equitable fieri facias and elegit. 
 
 (h) Coleman v. Winch, 1 P. Wms. 775 ; Morret v. Paske, 2 Atk. 52 ; 
 Adams v. Claxton, 6 Ves. 226 ; Coote on Mortgages, 402. 
 
 (i) Margrave . Le Hooke, 2 Vern. 207 ; Pope 0. Onslow, 2 Id. 286 ; 
 Jones 0. Smith, 2 Ves. Jr. 372, 376 ; Ireson v. Denn, 2 Cox 425 ; White v. 
 Hilacre, 3 Y. & C. 597; Grugeon v. Gerrard, 4 Id. 119; Coote on Mort- 
 gages 483-491. 
 
 1 See, on the subject of Tacking: Neve v. Pennell, 2 Hem. & M. 170; 
 Lloyd o. Attwood, 3 De G. & J. 614 ; Bates v. Johnson, Johnson 304.
 
 OF RE-EXECUTION, ETC. 345 
 
 *CH AFTER V. [*166] 
 
 OF 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 con- 
 sidering these subjects we have assumed, that the original 
 transaction and its evidence are unimpeached and clear, 
 and that the relief asked is merely the enforcement of a 
 consequent equity. If the instrument evidencing a trans- 
 action 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 opera- 
 tion, 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-execu- 
 tion, correction, and rescission, like the equity for per- 
 formance in specie, are incapable of enforcement at 
 common law, and fall, therefore, within the province of 
 the Court of Chancery. 
 
 The jurisdiction for re-execution and other similar relief 
 arises, not only on a destruction or concealment by the 
 defendant, but also on an accidental destruction or loss, 
 where the missing instrument is such, that its non- 
 production would perpetua'te a defect of title, or would
 
 346 ADAMS'S DOCTRINE OF EQUITY. 
 
 preclude the plaintiff from recovering at law. 1 If, for 
 instance, a conveyance to a purchaser has been acciden- 
 
 l~*1671 Burned, so *that the purchaser is unable to 
 
 show a title to the estate, the vendor may be 
 compelled to recorivey.(V) 2 
 
 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 action. 
 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 
 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. 3 The same facts must be also admitted or 
 proved at the hearing ; for the instrument, if in existence, 
 would be cognisable at law, and the alleged loss or de- 
 struction is the only ground for shifting the jurisdiction 
 
 (a) Bennett v. Ingoldsby, Finch 262 ; 2 Sug. V. & P. 98. 
 
 1 And the loss of an article of agreement containing mutual covenants is 
 sufficient to confer jurisdiction on a Court of Chancery in favor of the in- 
 jured party : Bolware v. Bolware, 1 Litt. 124 ; see Owen v. Paul, 16 Ala. 130. 
 
 2 But a bill for the re-execution of a deed of land, lost or destroyed 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. 
 
 3 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 5 Owen v. Paul, 16 Ala. 130 ; Pennington 
 v. The Governor, 1 Blackf. 78 ; yet, if the proof of the loss is clear, the 
 affidavit may be dispensed with : Graham v. Hackwith, 1 A. K. Marsh. 
 424; Parsons' Adrar. v. Wilson, 2 Tenn. 260 ; Webb v. Bowman's Ex'rs., 
 3 J. J. Marsh. 73. In Lawrence v. Lawrence, 42 N. H. 109, where there 
 was a decree for the re-execution of a lost mortgage, the defendant was 
 ordered to pay the costs, because he had improperly denied the existence 
 of the mortgage.
 
 OF RE-EXECUTION, ETC. 347 
 
 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 affidavit is 
 not required, (b) We have already seen, that a similar 
 affidavit is requisite where a bill is filed for an examina- 
 tion de bene esse, as auxiliary to an action at law.(e) 
 
 The jurisdiction in the case of lost bonds originates in 
 the doctrine of profert at law. It was anciently a rule of 
 pleading in die 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, pro- 
 fert 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-execu- 
 tion and payment of the money secured. The rule 
 requiring profert is now dispensed with at law in the event 
 of loss; but the *change of practice at common r#ipcn 
 law does not annul the jurisdiction in equity. (J) 1 
 
 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 commenced 
 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 
 
 (6) Mitf. l'J4. (c) Supra, Examination de bene esse. 
 
 (d) Ex parte Greenway, 6 Ves. 812 ; East India Company v. Bodham, 9 
 Id. 404. 
 
 1 See Shields r. Commonwealth, 4 Rand. 541. And the finding of the 
 lost bond or note after a suit in Chancery is instituted does not oust the 
 chancellor of his jurisdiction: Crawford v. Summers, 3 J. J. Marsh. 300; 
 Miller v. Wells. 5 Missouri 6 ; Hamlin v. Hamlin, 3 Jones' Eq. 191.
 
 348 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 security. And there- 
 fore a Court of equity, which can enforce a proper indem- 
 nity from the plaintiff, will entertain 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. (0) 1 
 
 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 
 alteration to be made; and 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. 2 
 
 (e) Hansard v. Robinson,? B. & C. 90 (14 E. C. L. R.) ; Macartney v. 
 Graham, 2 Sim. 285 ; Walmsley v. Child, 1 Ves. 341 ; Glynn v. Bank of 
 England, 2 Id. 38 ; Mossop v. Eadon, 16 Id. 430. 
 
 1 The loss of a negotiable note is a ground for equitable relief: Irwin v. 
 The Planter's Bank, 1 Humph. 145 ; Tindall v. Childress, 2 St. & Porter 
 250; Smith D.Walker, 1 Sm. & Marsh. Ch. 432; Chewning v. Singleton, U 
 Hill Eq/371 ; Savannah Nat. Bank v. Haskins, 101 Mass. 370. But if the 
 note has not been negotiated at bank, the bill must contain an allegation 
 of all the facts necessary to be shown to manifest due diligence in at- 
 tempting to obtain the money from the assignor : West u. Patton, Litt. 
 Sel. Gas. 405. The general rule is the same as to bonds : Kerney v. Kerney, 
 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. 
 
 2 The present English rule in regard to the reformation of instruments
 
 OF CORRECTION, 349 
 
 *The most obvious and easy exercise of this 
 jurisdiction is where an instrument has been exe- 
 
 is well stated by the Chancellor in Fowler v. Fowler, 4 De G. & J. 265 : 
 "It is clear," he says, " that a person who seeks to rectify a deed on the 
 ground of mistake must be required to establish in the clearest and most 
 satisfactory manner that the alleged intention to which he desires it to be 
 made conformable continued concurrently in the minds of all parties 
 down to the time of its execution, and also must be able to show exactly 
 and precisely the form to which the deed ought to be brought." See 
 also Malmesbury v. Malmesbury, 31 Beav. 417 ; Clark r. Malpas, 31 L. J. 
 Ch. (X. S.) 696; Garrard v. Frankel, 30 Beav. 459; Bradford v. Romney, 
 Id. 431. 
 
 In the United States there is no question 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 ; Xewsom v. Bufferlow, 1 Dev. Eq. 379 ; Shipp v. Swann, 
 2 Bibb 82 : Bellows v. Stone, 14 N. H. 175 ; and cases collected in note to 
 Woollaui r. Ilearn, 2 Lead. Cas. Eq. (3d Am. ed.) 684; Bradford v. Union 
 Bank of Tennessee, 13 How. U. S. 57 ; Runnell v. Read, 21 Conn. 586 ; 
 Stedwell v. Anderson, 21 Id. 139 ; Craig v. Kittredge, 3 Foster 231 ; 
 Lavender v. Lee, 14 Ala. 688 ; Wall . Arlington, 13 Geo. 88 ; see Miller 
 v. Fichthorn, 31 Penn. St. 252 ; Wesley . Thomas, 6 Har. & J. 23 ; see 
 Tilton v. Tilton, 9 X. H. 385 ; Durant v. Bacot, 2 Beas. 201 ; Hook v. Craig- 
 head, 32 Missouri 405 ; Gump's Appeal, 65 Penn. St. 476 ; Firmstone v. 
 DeCamp, 2 Green (N. J.) 317. 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 ; Galdsborough v. Ringgold, 1 Md. Ch. 239 ; Beard v. Hubble, 
 9 Gill 420 ; Lea's Ex'rs. . Eidson, 9 Gratt. 277 ; U. S. v. Monroe, 5 Mason 
 072 : Lyman v. Ins. Co., 17 John. 373 ; Preston v. Whitcomb, 17 Verm. 
 183 ; Greer r. Caldwell, 14 Geo. 207 ; Leikensdorfer v. Delphy, 15 Mo. 160; 
 Carnall r. Wilson, 14 Ark. 482 ; Coffing v. Taylor, 16 111. 457 ; Wright v. 
 Delafield, 23 Barb. (X. Y.) 498 ; Wemple . Stewart, 23 Id. 498 ; Farley 
 v. Bryant, 32 Maine 474 ; Tucker . Madden, 44 Id. 206 ; Adams v. Rob- 
 ertson 37 111., 45 ; Clearly v. Babcock, 41 111. 271 ; Goltra v. Sanasack, 35 
 Id. 456 ; Shively v. Welch, 2 Oregon 288 ; Edmonds' Appeal, 59 Penn. St. 
 220. A Court of equity relieves more readily against a mistake in the 
 execution of a power than in a contract : Oliver v. Mutual Comm. Marine 
 Ins. Co.. '2 Curtis C. C. 277. A misunderstanding of the facts is not 
 sufficient ground for asking a reformation of a contract; fraud or mistake 
 is indispensable : Story r. Conger, 36 X. Y. 673. 
 
 As to the parties against whom equity will afford this relief, they con-
 
 350 ADAMS'S DOCTRINE OF EQUITY. 
 
 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. 
 
 sist not only of the original parties, but also of all those claiming under 
 them in privity, as heirs, legatees, devisees, assignees, voluntary grantees, 
 judgment creditors, and purchasers with notice of the facts : Simmons v. 
 North, 3 S. & M. 67 ; Whitehead v. Brown, 18 Ala. 682 ; Stone v. Hale, 17 
 Id. 557 ; Davis v. Rogers, 33 Maine 222 ; Wall v. Arrington, 13 Geo. 88 ; 
 Godwin v. Yonge, 22 Ala. 553 ; Adams v. Stevens, 49 Maine 365 ; Cady v. 
 Potter, 55 Barb. (N. Y.) 463 ; though see Dennis v. Dennis, 4 Rich. Eq. 
 307 ; see Quirk v. Thomas, 6 Mich. 76. But between creditors 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. 253. Equity will correct 
 as against sureties as well as others : Butler v. Durham, 3 Ired. Ch. 589. 
 
 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 variation, 
 though the prevailing opinion appears to be that it is admissible. See 
 ante, note to page 85, and the American note to Wollam v, Hearn, ut sup. ; 
 also Thompsonville . Osgood, 26 Conn. 16 ; Ring v. Ashworth, 3 Clarke 
 (la.) 458; White . Port Huron, &c., R. R. Co., 13 Mich. 356; Glass v. 
 Hiilbert, 102 Mass. 24. 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 sup. ; Ligon's Admr. v. Rogers, 12 Geo. 281 ; Chamness v. Crutchfield, 
 2 Ired. Eq. 148 ; Whitehead v. Brown, 18 Ala. 682 ; Dwight v. Pomeroy, 
 17 Mass. 303 ; Andrew v. Spurr, 8 Allen 417; Betts v. Gunn, 31 Ala. 219. 
 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. Diffenbach, 1 S. & R. 
 464; Rearich v. Swinehart, 11 Penn. St. 238; Chalfant o. Williams, 35 
 Id. 212. 
 
 In general, a Court of equity will not relieve for ignorance or mistake 
 of law : Hunt v. Rousmaniere, 1 Pet. S. C. 1 ; Shotwell v. Murray, 1 John. 
 Ch. 512 ; Lyon . Richmond, 2 Id. 60 ; Brown v. Armistead, 6 Rand. 594; 
 Farley v . Bryant, 32 Maine 474 ; Freeman v. Curtis, 51 Id. 140 ; Peters v. 
 Florence, 38 Penn. St. 194 ; Wintermute v. Snyder, 2 Green Ch. 498 ; Hall 
 0. Reed, 2 Barb. Ch. 503 ; Lyon v. Sanders, 23 Miss. 533 ; Shafer v. Davis, 
 13 111. 395; Mellish v. Robertson, 25 Verm. 603; Smith v. McDougal, 2 
 Cal. 586 ; Bently v. Whittemore, 3 Green (N. J.) 366. It has been said,
 
 OF CORRECTION. 351 
 
 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^/) 1 
 
 (f) Supra, Executory Trusts. 
 
 that whatever exceptions there may bo 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 sup. ; 
 Bank U. S. v. Daniel, 12 Pet. 32. See Moreland v. Atchison, 19 Tex. 303. 
 A distinction has sometimes been drawn between ignorance and mistake 
 of law, and the latter, when distinctly proved, has been held ground for 
 interference : Hopkins v. Mazyck, 1 Hill Eq. 242 ; State v. Paup, 8 Eng. 
 (Ark.) 135 ; Lawrence v. Beaubin, 2 Bailey 623 ; but see Chainplin v. Laytin, 
 18 Wend. 407 : Jacobs r. Morange, 47 X. Y. 57. 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 sup. ; 
 Gilbert P. Gilbert, 9 Barb. S. C. 532; Arthur v. Arthur, 10 Id. 9; Mellish 
 r. Robertson. 25 Verm. 608 ; Farley v. Bryant, 32 Maine 474 ; Larkins v. 
 Biddle, 21 Ala. 252 -. Hawralty v. Warren, 3 Green (N. J.) 124; Burt v. 
 Wilson, 28 Cal. 632; Hoover v. Reilly, 2 Abb. U. S. 471. Though see 
 Clayton v. Freet, 10 Ohio (N. S.) 544 ; Kennard v. George, 44 N. H. 440; 
 al>o Green v. The Morris and Essex R. R. Co., 1 Beas. 165 ; Canedy c. 
 Marcy, 13 Gray 373 ; King v. Doolittle, 1 Head 77 ; Gross v. Leber, 47 
 Penn. St. 520; Clayton v. Bussey, 30 Ga. 946 ; Lister v. Hodgson, L. R. 
 4 Eq. 30. Where, however, one of the parties to a contract knows that 
 the other is ignorant of some matter of law involved in it, and takes ad- 
 vantage of that ignorance, relief will be granted on the ground of fraud : 
 Cooke v. Xathan, 16 Barb. 342 ; Dill r. Shahan, 25 Ala. 694. This subject 
 has been much discussed in the United States, and there is no little diver- 
 sity 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 Wollam v. Hearne, 2 Lead. 
 Cas. Eq. supra. 
 
 1 Equity will not reform a voluntary deed as against the grantor: Broun
 
 352 ADAMS'S DOCTRINE OF EQUITY. 
 
 s 
 
 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. 1 If, however, there is no recital of any 
 agreement, but a mistake is alleged, and extrinsic evi- 
 dence tendered in proof that it was made, the limits of 
 the equity for correction are more difficult to define. 
 The primd 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 undersigned insertion or 
 omission, been prepared and executed in another. If, for 
 F*l 701 instance, a contract were' made *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 ex- 
 cess. So again, where a solicitor, being instructed to 
 prepare a settlement of a particular sum, inserted by mis- 
 take double the amount, and the settlement was executed 
 
 v. Kennedy, 33 Beavan 147 ; Phillipson v. Kerry, 32 Id. 637 ; Henderson 
 v. Dickey, 35 Mo. 126. But see Thompson v. Whitmore, 1 Johns. & II. 
 268 ; Mitchell v. Mitchell, 40 Ga. 11. 
 
 1 Where there is an express ageeement for a policy of insurance in a 
 particular form, and the policy is drawn in a different form by the insurer, 
 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.
 
 OF CORRECTION. 353 
 
 without discovery of the mistake, a bill was sustained to 
 rectify it ; and the same course was pursued where the 
 solicitor, being directed to strike out a particular clause, 
 had by mistake extended his erasure to the one which 
 followed it.(ff) But it is not sufficient that there is a 
 mistake as to the legal consequences of the instrument ; 
 for to admit correction on this ground would be indirectly 
 to construe by extrinsic evidence, and the proper ques- 
 tion is not what the document was intended to mean, of 
 how it was intended to operate, but what it was intended 
 to be. 1 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 in- 
 serted in the grant, because both parties erroneously sup- 
 posed that its insertion would make the transaction usuri- 
 ous, 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 that which they 
 did not intend, but which they would have intended if 
 they had been better informed. So also it has been de- 
 cided, that where a party making a voluntary deed sup- 
 poses 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 rnade.(/j) 2 
 
 (g) Beaumont . Bramley, T. & R. 41 ; Breadalbane v. Chandos. 2 M. & 
 0. 711 ; Young v. Young, 1 Dick. 295 ; Rogers v. Earl, Id. 294; Wilson 
 v. Wil 80 n, 14 Sim. 405 ; 1 Sug. V. & P. c. iii., s. 11 ; Okill v. Whittaker, 2 
 Ph. 338. 
 
 (h) Irnham v. Child, 1 B. C. C. 92 ; Townshend v, Stangroom, 6 Ves. 
 328, 332 : Worall v. Jacob, 3 Meriv. 267, 271. 
 
 1 See note, ante, 168. 
 
 2 See as to rectification of a settlement where the solicitor preparing has 
 exceeded his instructions : Walker v. Armstrong, 25 L. J. Ch. 638. 
 
 23
 
 354 ADAMS'S DOCTRINE OF EQUITY. 
 
 or ^ er t sus tain a bill for relief under this 
 
 F*1 711 
 
 equity, it is essential that the error be on both 
 
 sides, and that it be admitted by the defendant or dis- 
 tinctly proved. 1 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. 2 A mistake on one side may 
 be a ground for rescinding a contract, or for refusing to en- 
 force its specific performance ; but it cannot be a ground 
 for altering its terms. And the mistake must be admitted 
 or distinctly proved. In determining whether such proof 
 has been given, great weight will be allowed to what is 
 reasonably and properly sworn by the defendant ; but his 
 oath is not conclusive, and may be counterbalanced by 
 evidence. It has been suggested that in all cases where 
 the Court has reformed a settlement, there has been 
 something beyond mere parol evidence ; such, for instance, 
 as the instructions for preparing the conveyance, or a 
 note by the attorne} r , and the mistake properly accounted 
 for. But it does not seem that evidence would be abso- 
 lutely 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 de- 
 fendant positively denied it, and there were nothing to 
 depend on but the recollection of witnesses, (i) 
 
 (i) Townshend v. Stangroom, 6 Ves. 328 ; Beaumont v. Bramley, T. & 
 R. 41 ; Alexander v. Crosbie, L. & G. 145 ; Mortimer v. Shortall, 1 Conn. 
 & L. 417. 
 
 1 Lanier v. Wyman, 5 Rob. (N. Y.) 147 ; Mills v. Lewis, 55 Barb. (N. 
 Y.) 179; Nevius v. Dunlap, 33 N. Y. 676. 
 
 1 Thus a policy of insurance will not be reformed in consequence of a 
 mistake of the assured alone : Cooper v. The Farmers' Ins. Co. ,50 Penn. St. 
 299. And see Bentley v. Mackay, 31 Beav. 151 ; Sawyer v. Hovey, 3 
 Allen 331 ; Woodbury Savings Bank v. Insurance Company, 31 Conn. 
 517; Diman v. Providence R. R. Co. , 5 Rhode Island 130. But mistake 
 on the one side and fraud on the other will authorize a reformation : Wells 
 v. Yates, 44 N. Y. 525.
 
 OF CORRECTION. 355 
 
 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 
 specifically enforced *it with the variation. (A:) 1 r#i 79-1 
 A will cannot be corrected by evidence of mis- 
 take, so as 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 inten- 
 tion has not those forms. 2 But it seems that if a clause 
 be inadvertently introduced, there may be an issue to try 
 whether it is part of the testator's will. (I) 
 
 In addition to the cases of correction on direct evidence 
 of mistake, there are others where it has been decreed on 
 a presumption of equity ; as, for example, where bonds 
 given for payment of a joint and 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 de- 
 ceased obligor. 3 The principle on which this presumption 
 
 (k) Attorney-General v. Sitwell, 1 Y. & C. 559 ; Townshend v. Stan- 
 groom, 6 Ves. 328 ; Higginson r. Clowes, 15 Ves. 516 5 1 V. & B. 524 ; Okill 
 r. Whittaker, 2 Ph. 338. 
 
 (1) 8 Vin. Abr. 188, G. a. pi. 1 ; Newburgh c. Newburgh, 5 Madd. 364 ; 
 1 Jarm. on Wills 353 ; Wigram on Wills s. 121. 
 
 1 See Osborn v. Phelps, 19 Conn. 63 ; but see note, ante, p. 85 and 168 ; 
 notes to Woollam v. Hearne, 2 Lead. Gas. Eq. 670. 
 
 2 See Jackson . Payne, 2 Metcalfe (Ky.) 567 ; Hunt v. White, 24 Texas 
 643. 
 
 3 Story's Eq. s. 162 ; Weaver v. Shryock, 6 S. & R. 262 ; Stiles v. Brock, 
 1 Penn. St. 215.
 
 356 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 coex- 
 tensive 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 liable, until the money 
 should be paid ; and that therefore a debt so arising, 
 though at law it is the joint debt of all the co-debtors, 
 shall be treated in equity as the several debt of each.(wz) 1 
 If, however, there be no independent liability, as for ex- 
 ample, if the bond be of 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 
 l~*1 7T1 *P resum ptive, that its fjbrm is contrary, to what 
 was meant, it cannot be altered on mere con- 
 jecture.^) 2 
 
 An important instance of the equity in respect to co- 
 
 (m) Simpson v. Vaughn, 2 Atk. 31 ; Bishop v. Church, 2 Yes. 100 ; 
 Thorpe v. Jackson, 2 Y. & C. 553 ; Clarke v. Bickers, 14 Sim. 639. 
 
 (n) Sumner v. Powell, 2 Meriv. 30 ; Underbill v. Horwood, 10 Ves. 209, 
 227 ; Rawstone v. Parr, 3 Russ. 539. 
 
 1 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. & G. 886, by L. J. Knight Bruce. 
 
 1 Jones . Beach, 2 De G., M. & G. 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, entered on a joint and 
 several bond, and the estate of the surety held discharged by his death 
 after the rendering of the judgment : U. S. v. Price, ut supr.
 
 OF CORRECTION. 357 
 
 debtors occurs in the case of debts owing by a partner- 
 ship. On the death of a partner, the liability survives at 
 law, and the debt is chargeable on the surviving partners 
 alone. But the deceased partner's assets remain liable in 
 equity; and the liabilities may be enforced either by the 
 creditor or by the surviving partners. The duration of 
 the liability is sometimes doubtful; and so also is the du- 
 ration of a partner's liability who has retired from the 
 firm, and is afterwards sued by an anterior 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 liable until the debts which 
 affected him are discharged. But the discharge may take 
 place in various ways; e. g., by actual payment on ac- 
 count of such debts ; by the regular application of unapro- 
 priated payments to their reduction, as the earliest 
 items on the account; by the express or implied agree- 
 ment of the creditor to substitute the continuing partners 
 as his debtors; or by the effect of the Statute of Limita- 
 tions in barring the claim ; and the question in each case 
 is, whether, as against the particular partner, the debt 
 has been in fact discharged. (0) 
 
 The equity for correction on presumptive evidence is 
 applied also to mortgages by husband and wife, of the 
 wife's estate, which have limited the equity of redemption 
 to the husband. If the instrument does not recite an in- 
 tention 1 to do more than make a mortgage, the presump- 
 
 (o) "Wilkinson v. Henderson, 1 M. & K. 582; Winter . Innes, 4 M. <fc 
 C. 101 ; Brown v. Weatherby, 12 Sim. 6 ; Tatam v. Williams, 3 Hare 347 ; 
 Way v. Bassett, 5 Id. 55 ; Thompson v. Percival, 5 B. & Ad. 925 ; Hart 
 p. Alexander, 2M. & W. 484 ; Blair r. Bromley, 5 Hare 542, 555 ; Smith's 
 Merc. Law 55. 
 
 1 It is not necessary, however, as was decided in Innes v. Jackson, cited 
 below, that such intention should appear in the recitals in the deed; it is
 
 358 ADAMS'S DOCTRINE OF EQUITY. 
 
 tion is that nothing more was intended ; and the instru- 
 l~*l 74-1 men ^ w ^ ke Deformed by restoring the equity 
 of redemption to the wife. 1 And in like manner 
 it is held, that if a lease be made by tenant for life, under 
 a power created by a settlement, and a rent reserved to 
 the lessor and his heirs, these words shall be interpreted 
 by the prior title, and applied to the remainderman under 
 the settlement, and not to the heir of the lessor. (0) 
 
 The jurisdiction for Rescission 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. 2 And it is 
 
 (z) Innes v. Jackson, 1 Bl. 0. S. 104, 114 ; Clark v. Burgh, 2 Coll. 221 ; 
 [see also, Plowden v. Hyde, 2 De G., M. & G. 684.] 
 
 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, 3 
 De G., M. & G. 737, it was held that the Court would not on slight ex- 
 pressions 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 limitations of the equity 
 of redemption. See also, Plowden v. Hyde, 2 De G., M. & G. 684. 
 Where a wife mortgages her property for a husband's debt, she stands in 
 the position of surety, and is entitled to exoneration 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. Keardon, 11 Md. 465; or if her estate has been 
 sold, she is entitled to subrogation to the mortgage, as against her hus- 
 band : Sheidle v. Weishlee. On the other hand, where the mortgage by 
 the husband and wife is of the wife's separate estate, parol evidence is ad- 
 missible to show that the money was really advanced to the wife, and the 
 husband the surety : Gray v. Downman, 27 L. J. Ch. 702. 
 
 1 On the other hand, equity will not relieve against a deed of a married 
 woman which is defective through non-compliance with statutory regula- 
 tions : Dickinson v. Glenney, 27 Conn. 104. 
 
 2 To justify the rescission of an executed contract, there must be some 
 objection affecting the substance of the contract; and a contract can never
 
 OF RESCISSION AND CANCELLATION. 359 
 
 exercised for a double purpose ; first, for cancelling exe- 
 cutory contracts, where such contracts are invalid, but 
 
 be rescinded, except in case of fraud or palpable mistake: Thompson v. 
 Jackson, 3 Rand. 504. 
 
 Inadequacy of price by itself is no ground of rescission, as has been 
 held in a great number of cases : Osgood v. Franklin, 2 Johns. Ch. 1 Hill 
 on Trustees 236, 237 (4tn Am. ed.), and cases cited : Potter v. Everett, 7 
 Ired. Eq. 152 : Robinson v. Robinson, 4 Md. Ch. 183 ; Judge v. Wilkins, 
 19 Ala. 765 ; Erwin v. Parham, 12 How. U. S. 197 ; Harrison v. Guest, 8 
 II. L. Gas. 481. Yet it may, in connection with suspicious circumstances, 
 be evidence of fraud : Wormack v. Rogers, 9 Geo. 60 ; McArtee v. Engart, 
 13 111. 242 ; Coffee v. Ruffin, 4 Cold. (Tenn.) 487 ; 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 con- 
 science and understanding of any man, the Court from that alone would 
 infer fraud or imposture : Wright v. Wilson, 2 Yerg. 294 ; Butler v. Has- 
 kell, 4 Dessaus. 652; Gist v. Frazier, 2 Litt. 118 ; Barnett v. Spratt,4 Ired. 
 Eq. 171 5 Deaderrick . Watkins, 8 Humph. 520 ; Juzan v. Toulmin, 9 Ala. 
 662; Eye v. Potter, 15 How. U. S. 60 ; Gifford v. Thorn, 1 Stockt. 702; 
 Surget v. Byers, 1 Hempst. C. C. 715 ; Marlatt v. Warwick, 3 Green (N. 
 J.) 108 ; 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 forgotten : Cook v. 
 Cole, 2 Halst. Ch. 522, 627 ; but see, De Hoghton v. Money, L. R. 1 Eq. 
 154, where it was held that a purchaser for value could not require a 
 voluntary agreement affecting the land to be delivered up. 
 
 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 . Simmons, 7 Ala. 71 ; Watkins v. Collins, 11 Ohio 31 ; Kirby . 
 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, 3 S. & M. 683 ; and the 
 Court will not rescind a contract, unless it can put the parties in statu quo. 
 Pintard . Martin, 1 S. & M. Ch. 126 ; Garland v. Bowling, 1 Hemp. C. C. 
 170 ; Coppedge v. Threadgill, 3 Sneed 377. See also, Skinner . White, 
 17 John. 357 ; Clay . Turner, 3 Bibb 52 ; Lane r. Latimer, 41 Ga. 171. 
 The court will refuse to rescind where the plaintiff has acted in a manner
 
 360 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 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- 
 cery, (b) 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 injunc- 
 tion 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 it 
 r*1751 * rema i ns unexecuted; and pari ratione, if its 
 illegal character be not apparent on the face of it, 
 will be a ground for cancellation in equity. 1 Such, for 
 instance, are contracts entered into for the purposes of 
 gaming 2 or smuggling, for inducing or aiding prostitution, 3 
 
 (a) Peake v. Highfield, 1 Russ. 559; Jones v. Lane, 3 Y. & G. 281, 294: 
 Simpson v. Lord Howden, 3 M. & C. 97. 
 
 (6) Evans v. Bicknell, 6 Ves. 174 ; Blair v. Bromley, 2 Ph. 354. 
 (c) Infra, Injunction. 
 
 inconsistent with the repudiation of the contract: Ex parte Briggs, L. R. 
 1 Eq. 483. Equity will also, upon a proper case being made, rescind con- 
 tracts in relation to personal as well as real estate : Bradberry v. Keas, 5 
 J. J. Marsh. 446. 
 
 1 W v. B , 32 Beav. 574. 
 
 2 Rucker v. Wynne, 2 Head 617. 
 
 s Walker v. Gregory, 36 Ala. 180.
 
 OF RESCISSION AND CANCELLATION. 361 
 
 for compromising a criminal prosecution, for giving usuri- 
 ous interest on a loan ; or even for purposes which, though 
 not strictly illegal, are against the policy of the law, 1 e. (/., 
 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" 2 But it is otherwise 
 where a law is made to prevent oppression, and the op- 
 pressed 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 con- 
 sidered in pari. delicto, but may defeat the contract after 
 completion. 3 
 
 So long as the contract continues executory, the maxim 
 of " in pari delicto' does not apply ; for the nature of the 
 
 1 See Brown v. Speyers, 20 Gratt. 296. 
 
 2 See Blystone v. Blystone, 51 Perm. St. 373. 
 
 8 Courts of equity will not set aside an executed conveyance to com- 
 pound a felony : Swartzer . Gillett, 1 Chand. (Wis.) 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 dispensed with by 
 statute : Story Eq., | 301 ; see Vilas . Jones, 1 Comst. 274 ; Rexford v. 
 Widger, 2 Id. 131 ; West v. Beanes, 3 Harr. & John. 568; Anon., 2 Des- 
 saus. 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 advanced 
 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 : Reynell v. Sprye, 1 
 De G., M. & G. 660 ; 21 L. J. Ch. 633 ; affirming s. c. 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.
 
 362 ADAMS'S DOCTRINE OF EQUITY. 
 
 contract would be a defence at law, and the decree of can- 
 cellation is only an equitable mode of rendering that de- 
 fence effectual. The prayer, however, must be confined 
 to cancellation of the contract, and must not couple relief 
 in affirmance of it, such as specific performance or reform- 
 ation of error. (cl) 
 
 Next, of Rescission and Cancellation by reason of fraud. 1 
 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 cognisable at law; if of personal estate, in the 
 Ecclesiastical Court. (<?) In other cases of fraud, the 
 Court of Chancery has concurrent jurisdiction with the 
 f*l 7fi1 ^ our ^ s f l aw > 2 aQ d *this jurisdiction will be ex- 
 ercised against any one who has abetted or pro- 
 fited by the fraud, and after any length of time. The 
 infancy of the defrauding party will not exonerate him, 
 for though the law protects him from binding himself by 
 contract, it gives him no authority to cheat others. (/) 3 
 
 (d) Batty v. Chester, 5 Beav. 103. 
 
 (e) Infra 248, Establishment of Wills. [But see note, Ibid.] 
 
 (f) Overton v. Banister, 3 Hare SOS; Stikeman v. Dawson, 1 De G. & 
 Sm. 90 ; [Wright v. Snowe, 2 Id. 321 ; Stoolfoos v. Jenkins, 12 S. & R. 
 399.] 
 
 1 In equity nothing can be called fraud, or treated as fraud, except an 
 act which involves grave moral guilt: Smallcomb's Case, L. R. 3 Eq. 769. 
 
 2 See Relf v. Eberly, 23 Iowa 467 ; McHenry v. Hazard, 45 N. Y. 580. 
 
 3 So of a feme coverte : Jones v. Kearney, 1 Dr. & Warr. 134 ; see Davis 
 . Tingle, 8 B Monr. 539 ; Hobday v. Peters, 28 Beav. 603. In the recent 
 case of Vaughan v. Vanderstegan, 2 Drewry 363, it was held that a married 
 woman, fraudulently representing herself as sole, made her separate estate 
 liable for debts so contracted, and that where she had a general power of 
 appointment and exercised it, equity would treat the property as assets on 
 her death. See Hobday v. Peters, 28 Beav. 603 ; Hill on Trustees 663, 
 4th Am. ed.
 
 OF RESCISSION AND CANCELLATION. 363 
 
 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 
 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 1 ) 1 
 
 With respect to what will constitute fraud, it is impos- 
 sible to lay down a specific rule ; but the most ordinary 
 instances of its occurrence, and those to which our atten- 
 tion will be now directed, are the procuring contracts to 
 
 (g) Supra, Priority of Equity on the ground of Fraud. Beadles v. Burch, 
 10 Sim. 332; Attwood v. Small, 6 C. & F. 232. 
 
 (h) Alden . Gregory, 2 Eden 280 ; South Sea Company v. "Wymondsell, 
 3 P. Wms. 143 ; Hovenden v. Lord Annesley 2 Sch. & L. 607, 639. 
 
 (i) Huguenin v. Baseley, 14 Ves. 273, 289. 
 
 (k) Glascott P. Lang, 2 Ph. 310. 
 
 1 Price v. Berrington, 3 Macn. & G. 486 ; Eyre r. Potter, 15 How. U. S. 
 50 ; Fisher v. Boody, 1 Curtis 211 ; see Waters v. Mynn, 14 Jur. 341. 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 in- 
 jury thereby : Cunningham c. Ashley, 7 Eng. (Ark.) 296 ; Cook v. Cook, Id. 
 381 ; Jewett . Davis, 10 Allen (Mass.) 68. In general, an allegation of 
 fraud is necessary : Gouveneur v. Elmendorff, 5 Johns. Ch. 79 ; Thompson 
 v. Jackson, 3 Rand. 504 ; Booth v. Booth, 3 Lit. 57 ; Miller v. Gotten, 5 Ga. 
 346 ; Conway v. Ellison, 14 Ark. 360 ; McLane v. Manning, 1 Wins. (N. 
 C.) Xo. 2, (Eq.) 60; though, where the facts are stated with distinctness 
 and precision, an allegation of fraud totidem verbis is not required : 
 McCalmont v. Rankin, 8 Hare 1 ; Skrine . Simmons, 11 Ga. 401 ; Ken- 
 nedy v. Kennedy, 2 Ala. 571.
 
 364 ADAMS'S DOCTRINE OF EQUITY. 
 
 be made or acts to be done by means of wilful misrepre- 
 sentation, either express or implied, and the procuring 
 them to be made or done by persons under duress or in- 
 capacity. 1 
 
 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. 2 If the 
 
 1 In Chesterfield v. Janssen, 2 Ves. 125, Lord Hardwicke made the 
 celebrated division of fraud, since so often recognised, into four classes, 
 viz. : 1st. Fraud arising from facts and circumstances of imposition ; 2d. 
 Fraud arising from the intrinsic value and subject-matter of the bargain 
 itself; 3d. Fraud presumed from the circumstances and condition of the 
 parties contracting ; 4th. Fraud affecting third persons not parties to the 
 agreement. See the notes to this case in 1 Lead. Cas. Eq. 428. 
 
 2 A false and fraudulent representation of a material fact, constituting 
 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 generally 
 held in the United States, that the principle equally applies, where the 
 party making the representation was ignorant whether it were true or 
 false: Hough v. Richardson, 3 Story 659; Harding v. Randall, 15 Maine 
 332 ; Pratt . Phillbrook, 33 Id. 17 ; Lewis v. McLemore, 10 Yerg. 206 ; 
 Turnbull v. Gadsden, 2 Strob. Eq. 14 ; Rosevelt v. Fulton, 2 Cowen 129 ; 
 Smith v. Babcock, 2 Wood. & M. 246 ; Hunt v. Moore, 2 Penn. St. 105 ; 
 Smith v. Richards, 13 Peters 26 ; Joice v. Taylor, 6 Gill & John. 54 ; Taylor v. 
 Black, 13 How. U. S. 230; Reese v. Wyman, 9 Ga. 439 ; Taymon v. Mitchell, 
 1 Md. Ch. 496 ; Smith v. Robertson, 23 Ala. 312 ; Belknay 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 . Sprye, 8 Hare 222 ; 1 De G., M. & G. 660. The tendency 
 both in England and in this country, seems to be to make a party liable 
 for representations not known by him to be true, as well as for those which 
 he actually knows to be false : Hill on Trustees 146 ; Sharp . Mayor, 40 
 Barb. 256; Thompson v. Lee, 31 Ala. 292; Wheelden v. Lowell, 50 Maine 
 499. 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 partner : Blair v. Bromley, 2 Phillips 425 ; Beebe v. Young, 14 Mich. 
 136 ; May v. Snyder, 22 Iowa 525 ; Phillips v. Hollister, 2 Cold. 269. But 
 if the agreement be fair between the parties, it is not invalid because
 
 '' 
 
 OF RESCISSION AND CANCELLATION. 365 
 
 fact concerning which the representation is made is not a 
 material inducement to the contract or act, there is no 
 reason why a misstatement of it should vitiate what has 
 
 brought about by a third person to benefit himself: Bellamy v. Sabine, 2 
 Phillips 425 : Blackie v. Clarke, 22 L. J. Ch. 377. Or even though brought 
 about by fraudulent misrepresentations on the part of such third person : 
 Fisher v. Boody, 1 Curtis 206. 
 
 In Turner r. Navigation Co., 2 Dev. Eq. 236, however, it was held that 
 in the case of a written ^contract, representations made bond Jide, 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 Cl. & Finn. 232. Where both 
 parties have equal means of information, so that by the exercise of ordi- 
 nary prudence and diligence, either may rely upon his own judgment, 
 misrepresentations, though false, will not be considered fraudulent : Hobbs 
 v. Parker, 31 Maine 143 ; Yeates v. Pryer, 6 Eng. (Ark.) 68 ; Hallr.Thom- 
 son, 1 Sm. & Marsh. 443 ; Tindall v. Harkinson, 19 Ga. 448 ; Rockafellow 
 v. Baker. 41 Penn. St. 319. 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 ; Knuckolls v. 
 Lea, 10 Humph. 577 ; see Yeates v. Pryor, 6 Eng. (Ark.) 68 ; Scott v. Gam- 
 ble, 1 Stockt. 218. But a contract may be set aside for fraudulent misre- 
 presentations, though the means of obtaining information were fully open 
 to the party deceived, where, from the circumstances, he was induced to 
 rely upon the other party's information : Reynell v. Sprye, 8 Hare 222 ; 1 
 DC G.. M. & G. GOO. 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 ; Speigle- 
 myerr. Crawford, G Paige Ch. 254; Juzan v. Toulmin, 9 Ala. 662; Smith 
 v. Richards, 13 Pet. 26 ; Glasscock v. Minor, 11 Mo. 655 ; Hutchinson v. 
 Browne, 1 Clark Ch. 408 ; Coil r. Pittsburgh College, 40 Penn. St. 445. See 
 also, Wambaugh v. Bimer, 25 Md. 368. If, however, there is some fiduciary 
 relationship between the parties : Spence v. Whittaker, 3 Porter 297 ; or 
 in resisting specific performance, misrepresentations of value may become 
 important. Misrepresentations must be made in respect to matters of fact 
 and not of law : People . San Francisco, 27 Cal. 655 ; and see also, 
 Jordan v. Stevens, 51 Maine 78. 
 
 As to false representations and concealment in a prospectus or advertise- 
 ment of a projected railway or similar company, by which parties are in- 
 duced to become shareholders, see Jennings v. Broughton, 17 Jur. 905; 17 
 Bea. 234 : Pulsford v. Richards, 17 Jur. 865; 17 Bea. 87 ; Denton v. Mac- 
 Neil, L. R. 2 Eq. 352.
 
 366 ADAMS'S DOCTRINE OF EQUITY. 
 
 been done ; (I) and if the misstatement has not been relied 
 on, or not reasonably relied on, by the complaining party, 
 the same reasoning will apply. Such, for example, will 
 be the case, if the party to whom the representation is 
 made resorts to the proper means of verification, so as to 
 show that he in fact relied on his own inquiries ; or if the 
 means of investigation and verification are at hand, and 
 his attention is drawn to them ; or if the representation 
 regards a mere matter of opinion or inference, with re- 
 spect to which both parties have equal means of forming a 
 judgment. 1 But it would be different if he were prevented 
 by any artifice of the other party from making such full 
 inquiry as he would otherwise have made.(m) For this 
 reason a contract is not vitiated by a mere false assertion 
 of value on the part of the seller ; nor by vague and inde- 
 finite terms of commendation ; (n) nor by a mere misstate- 
 ment by the buyer of his motive in purchasing or in 
 limiting the amount of his offer ; for these are not repre- 
 sentations on which a man can reasonably rely, (o) Nor 
 will the mere employment of one person to bid at an auc- 
 tion on the owner's behalf, though not notified, be a fraud 
 in equity, provided he be bond fide employed to prevent a 
 
 (I) Attwood 0. Small, 6 01. & F. 232, 502 ; Phillips v. Duke of Buck- 
 ingham, 1 Vern. 227 ; Fellowes v. Lord Gwydyr, 1 R. & M. 83 ; Crosbie v. 
 Tooke, 1 M. & K. 431 ; Nelthorpe v. Holgate, 1 Coll. 203 ; 1 Sug. V. & P. 
 348-351. 
 
 (TO) Clapham v. Shillito, 7 Bea. 146 ; Attwood v. Small, 6 01. & F. 232, 
 503. - 
 
 (n} 1 Sug. V. & P. 3, 4 ; White v. Cuddon, 8 01. & F. 766. 
 
 (o) Vernon . Keys, 12 East 632. 
 
 1 False reasoning upon facts truly stated is no ground for relief in equity : 
 Bowman . 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 ; Nicol's Case, 3 De G. & J. 437.
 
 OF RESCISSION AND CANCELLATION. 367 
 
 sale at an under value. 1 But it is otherwise if the inten- 
 tion 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 reserve, which implies that such a 
 course will not be taken. ( p) 
 
 *The requirement that the representation shall 
 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. 2 
 Affirmations of this latter kind bind the party making 
 them, although he were himself honestly mistaken, be- 
 cause he has explicity agreed that they shall do so; but 
 if a warranty or covenant is not given, a mere representa- 
 tion 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 conduct. 
 But mere nondisclosure is generally not equivalent 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 
 
 (jp) Smith r. Clarke, 12 Ves. 477 ; Woodward . Miller, 2 Coll. 279 ; 
 Thornett v. Haines, 15 >Iee. & W. 367 ; 15 Law. J. Exeh. 230; 1 Sug. V. 
 & P. c. i., s. 2. 
 
 (q) Pasley r. Freeman, 3 T. R. 51 ; Freeman v. Baker, 5 B. & Ad. 797; 
 Ormrod r. Huth, 14 Mee. & W. 651 ; 14 Law J. Exch. 366. 
 
 1 Though see Pennock's App., 14 Penn. St. 446 ; Staines c. Shore, 16 Id. 
 200, contra. 
 * See Spence v. Duren, 3 Ala. 251.
 
 368 ADAMS'S DOCTRINE OF EQUITY. 
 
 other party makes no inquiry, I am not bound by law to 
 inform him of the mine.(r) 1 
 
 There are, however, cases of a different character, 
 where the contract is necessarily based on the assumption 
 of a full disclosure, and where for that reason, any degree 
 of reticence on a material point is fraud. Such, for in- 
 stance, is the case where the seller of real estate, know- 
 ing a fact material to the validity of his title, delivers an 
 abstract which does not disclose it; for the knowledge of 
 his title is confined to himself; and the purchaser con- 
 tracts on the assumption that the real title will be shown, (s) 
 It has been further decided at law that, even though an 
 P1791 ar ^ c ^ e ^ e s ld *with all the faults, so as expressly 
 to free the seller from responsibility, yet if he 
 falsely represent that a particular defect does not exist, 
 or if he use any artifice to disguise a defect or to prevent 
 its discovery, the contract may be set aside. (t)* 
 
 (r) Turner v. Harvey, Jac. 169, 178 ; Dykes . Blake, 4 B. N. C. 463 ; 
 Gibson v. D'Este, 2 N. C\ C. 542 ; [aliter, if there were artifices used to 
 conceal the fact : Bowman v. Bates, 2 Bibb 47.] 
 
 (s) Edwards v. McLeay, Coop. 308 ; 2 Swanst. 287. 
 
 (t) Baglehole V.Walters, 3 Camp. 154; Schneider . Heath, Id. 506; 
 1 Sug. V. & P. 545-552. 
 
 1 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 otherwise no 
 fraud in the transaction : Harris v. Tyson, 24 Penn. St. 369. 
 
 2 Where concealment amounts to a wilful suppi-ession by one party, for 
 his own benefit and to the injury of the other, of material facts which the 
 former was bound not merely morally but legally to communicate, 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 Freeman Ch. 241 ; Arm- 
 stead v. Hundley, 7 Gratt. 52 ; Torrey v. Buck, 1 Green Ch. 366 ; White v. 
 Cox, 3 Heyw. 79 ; Jopling . Dooley, 1 Yerg. 290 ; Napier v. Elam, 6 Id. 
 108; Snelson v. Franklin, 6 Munf. 210 ; Bryant's Ex'rs. v. Boothe, 30 Ala. 
 311 ; Story's Eq., \ 207 ; Laidlaw v. Organ. '2 Wheat. 178 ; Lancaster Co.
 
 OF RESCISSION AND CANCELLATION. 369 
 
 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 res- 
 pect 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 re- 
 presentation of the party insured or guarantied. If, there- 
 fore the insured does not state to the insurer truly and 
 fully all the facts within his private knowledge, which 
 would vary materially the object of the policy and change 
 the risk understood to be run, the policy is void. Nor is 
 it an excuse that the concealment was attributable to the 
 
 Bank v. Albright, 21 Penn. St. 223. The limits beyond which concealment 
 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 circumstances the concealment 
 must have something active in its character to amount to fraud. Where, 
 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 
 Swans. 400 ; the obligation to disclosure becomes imperative. See Story 
 Eq., \ 217-18. See, however, Crane v. Hewitt, 2 Halst Ch. 631 ; but qu. a* 
 to that case. 
 
 Where it does not appear that a party knew a fact alleged to have been 
 concealed, or had had better opportunity to know it than the other, equity 
 will not interfere : Perkins v. McGavock, Cooke 415. 
 
 Where an encumbrance 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 when an encumbrance 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. 
 24
 
 370 ADAMS'S DOCTRINE OF EQUTY. 
 
 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 believed by the insurer to be material 
 or was not concealed with a fraudulent design, (u) And 
 in like manner if a contract is guarantied by a surety, and 
 a fact materially affecting the nature of that contract is 
 misrepresented to him or concealed from him, with the 
 knowledge or consent of the party accepting the guaran- 
 tee, the surety ceases to be liable, (v) 1 
 
 Another case of the same character occurs in compo- 
 sitions by a debtor with his creditor, where a secret bar- 
 gain has been made with particular creditors. The very 
 circumstances that some creditors have already executed, 
 [~*1 801 * s an inducement *to the rest to follow their ex- 
 ample. The reason why they have so executed 
 can only be known by the other creditors from the rep- 
 resentation 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 arrange- 
 ments, therefore, are utterly void; they cannot be en- 
 forced 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 
 
 (u) Carter v. Boehm, 3 Burr. 1906 5 Smith Merc. Law, 358-363, 374 ; 
 De Costa v. Scandret, 2 P. Wins. 170 5 Whittingham v. Thornburg, 2 Vern. 
 206 j Fenn v. Craig, 3 Y. & C. 216 ; Kemp v. Pryor, 7 Ves. 237, 249 ; 
 Jervis v. White, Id. 413. 
 
 (v) Pidcock v. Bishop, 3 B. & C. 605 ; Stone v. Compton, 5 B. N. C. 142 ; 
 Hamilton v. Watson, .12 Cl. & F. 109. 
 
 (w) Jackman v. Mitchell, 13 Ves. 581 ; Ex parte Sadler and Jackson, 15 
 Id. 52 ; Smith Merc. Law 702. 
 
 1 But not if misrepresentation was of the law: Reed v. Sidener, 32 
 Ind. 373.
 
 OF RESCISSION AND CANCELLATION. 371 
 
 fraud of the relations or friends of one of the parties, will 
 be relieved against in equity ; e. #., 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 de- 
 ception practised on the other parties to induce a larger 
 settlement than they would otherwise have made.(#) 
 And a bond given for assisting a clandestine marriage 
 has been set aside, though given voluntarily after the 
 marriage, and without any previous arrangement, (y) 
 
 Another class of transactions which have been held 
 void, as amounting to a fraud on the marriage contract, 
 are conveyances by an unmarried woman of her property, 
 pending a treaty of marriage, without the knowledge of 
 her intended husband. 1 
 
 If a woman entitled to property enters into a treaty 
 for marriage, and during the treaty represents to her 
 intended husband that she is so entitled, that upon the 
 marriage he will become entitled jure mariti ; and if, 
 during the same treaty, she clandestinely conveys away 
 the property, either for the benefit of a third person, or 
 
 (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. 
 
 1 See Linker v. Smith, 4 Wash. C. C. 224 ; Logan v. Simmons, 3 Ired. 
 Eq. 487 ; Tucker v. Andrews, 13 Maine 124; Waller v. Arinistead, 2 Leigh 
 11 ; Manes v. Durant, 2 Rich. Eq. 404; Wrigley v. Swainson, 3 De G. & 
 Sm. 458 ; Freeman v. Hartman, 45 111. 57 ; Chambers v. Crabbe, 34 Bea. 
 457 ; see notes to Countess of Strathmore v. Bowes, 1 Lead. Cas. Eq. 325, 
 3d Am. ed. In Petty v. Petty, 4 B. Monr. 215, the same rule was applied 
 to the case of a husband who conveyed his property in fraud of the rights 
 of his second wife. See Lewellen v. Cobbold, 1 Sm. & Giff. 376. So, on 
 the other hand, a conveyance by a husband, pending proceedings for a 
 divorce on the part of a wife, in order to avoid the effects 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 ; see also Kline's Estate, 64 
 Id. 122.
 
 372 ADAMS'S DOCTRINE OF EQUITY. 
 
 to secure to himself 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 husband. 
 If both the property and the mode of its conveyance, 
 r*1811 P en ^ n & the mari> iage *treaty, were concealed 
 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 pro- 
 perty 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, have induced 
 him to abstain from the marriage. The mere fact, how- 
 ever, 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 com- 
 plained of by the husband should be treated as fraudulent. 1 
 Several circumstances appear to have been thought mate- 
 rial as negativing the imputed fraud ; such, for instance, 
 as the poverty of the husband the fact that he has made 
 no settlement upon the wife the fulfilment of a moral 
 or legal obligation, as in the case of a settlement upon the 
 children of a former marriage, 2 or of a bond given to secure 
 a debt contracted for a valuable consideration, and the 
 ignorance of the husband that his wife possessed the pro- 
 
 1 See Wrigley v. Swainson, 3 De G. & Sm. 458. 
 
 2 Green v. Goodall, 1 Cold. (Term.) 404.
 
 OF RESCISSION AND CANCELLATION. 373 
 
 perty. There can be no doubt that any of these facts 
 would be a good ground for insisting that the husband 
 should make a settlement, and for determining the mar- 
 riage 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 marriage, it was held 
 conclusive against relief. For, it was said by the 
 Court, *that by the husband's conduct towards p-i 09-1 
 her, retirement from the marriage on her part 
 was made impossible. She must have submitted to a 
 marriage with her seducer, even though he should have 
 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 misrepre- 
 sentation, 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, 
 
 (z) Goddard v. Snow, 1 Russ. 485 ; England v. Downs, 2 Beav. 522 ; 
 Taylor t. Pugh, 1 Hare 608.
 
 374 ADAMS'S DOCTRINE OF EQUITY. 
 
 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) 1 
 
 The conveyances and contracts of idiots and lunatics 
 (except during a lucid interval) are also, generally speak- 
 ing, void at law. But the feoffrnent of an insane person 
 is held not to be absolutely void, but voidable only, owing 
 to the solemnity of livery with which it is accompanied; 
 and for this reason it is held that he cannot himself set it 
 aside at law after his recovery ; although it may be avoid- 
 ed by the committee, during his lunacy, or by the heir 
 after his death. (b) 2 
 
 The principle on which a deed is held fraudulent, on 
 the ground of lunacy, is that it has been obtained from 
 I~*18TI * a P erson wno a ^ the time of execution was not 
 capable of apprehending its effect, but the mere 
 fact that the party was in a state of lunacy, or even that 
 he was under confinement, will not per se induce the Court 
 to interfere, if it be distinctly shown that the act was 
 
 (a) 2 Steph. Bl. 131, 137. 
 
 (6) 1 Steph. Bl. 440 ; 2 Sug. on Pow. 179 ; 1 Story on Eq. s. 223-229. 
 
 1 McDaniel . Moorman, 1 Harp. Ch. 108 ; Underwood v. Brockman, 4 
 Dana 319 ; Brown v. Peck, 2 Wise. 261 ; Thurman v. Burt, 53 111. 129 ; 
 Jones v. Bridge, 2 Sweeny (N. Y.) 431. 
 
 2 A present interest passes by the deed of a lunatic, which is not void, 
 but voidable : Breckenridge v. Ormsby, 1 J. J. Marsh. 245 ; Allis v. Bil- 
 lings, 6 Mete. 415 ; Price v. Berrington, 3 Macn. & G. 486 ; Ballard v. 
 McKenna, 4 Rich. Eq. 358 ; Ingrahara v . Baldwin, 5 Selden 45 ; see Mol- 
 ton v. Camroux, 2 Exch. 487 ; 4 Id. 17 ; Beals v. See, 10 Penn. St. 60 ; 
 though see Desilver's Est, 5 Rawle 111. 
 
 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-execu- 
 tion when he was of sound mind, to give it validity : Jones et al. v . Evans, 
 7 Dana 96.
 
 OF RESCISSION AND CANCELLATION. 375 
 
 beneficial to him, that no coercion or imposition was 
 used, and that he knew clearly what he was doing, (c) 1 
 
 It has been held also that, independently of that utter 
 imbecility which will render a man legally non compos, 
 a conveyance may be impeached for mere weakness of 
 intellect, provided it be coupled with other circumstances 
 to show that the weakness, such as it was, has been taken 
 advantage of by the other party. But the mere fact 
 that a person is of weak understanding, if there be no 
 fraud or surprise, is not an adequate cause for relief. (d) 2 
 
 (c) Selby v. Jackson, 6 Beav. 192 ; 13 L. J. 249. 
 
 (d) Blachford v. Christian, 1 Knapp 73 ; Ball v. Mannin, 3 Bligh. N. S. 
 1 ; 1 Story on Eq. s. 234-237. 
 
 1 There is a distinction between cases of rescission and a defence in 
 equity to the enforcement of an incidental equitable remedy on a deed 
 primd facie good, upon similar grounds. Thus, though insanity would 
 be a sufficient ground for the rescission of a mortgage, yet on a bill for 
 forclosure, such a defence cannot be set up, where the deed has been duly 
 proved, but the mortgagor or his representatives must establish the in- 
 validity of the security at law, or by an issue : Jacobs v. Richards, 5 De 
 G.. M. & G. 55. 
 
 2 Whipple v. McClure, 2 Root 216 ; Whitehorn v. Hines, 1 Munf. 557 ; 
 Buffalow v. Buffalow, 2 Dev. & Bat. Ch. 241 ; Rutherford v. Ruff, 4 
 Dessaus. 350 ; Deatley 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 Har. & Johns. 285; Whelan v. Whelan, 3 Cowen 
 537 ; Rumph v. Abercrombe, 12 Ala. 64; Gratz v. Cohen, 11 How. U. S. 
 1 ; Brice v. Brice, 5 Barb. S. C. 533 ; Brooke v. Berry, 2 Gill 83 ; Crad- 
 dock f. Cabiness, 1 Swan. (Tenn.) 474 ; Lansing v. Russell, 13 Barb. S. C. 
 511 ; Long . Long, 9 Md. 348 ; Cain v. Warford, 33 Id. 23 ; Hill v. 
 McLaurin, 28 Miss. 288 ; Marshall v. Billingsly, 7 Ind. 250 ; Smith v. 
 Elliott, 1 Patt. & Heath 307 ; Graham v. Pancoast, 30 Penn. St. 89 ; Nace 
 . Boyer, Id. 99 ; Aiman v. Stout, 42 Id. 114; see further on this subject, 
 Prideaux v. Lonsdale, 1 De G., J. & Sm. 443 ; Clarke . Malpus, 31 Beav. 
 80; Prewett v. Coopwood, 30 Miss. 369; Gass v. Mason, 4 Sneed 497; 
 Graham v. Little, 3 Jones Eq. 152; Oldham v. Oldham, 5 Id. 89 ; Futrill 
 v. Futrill, Id. 62 ; Hunt v. Hunt, 2 Beas. 161 ; Maddox v. Simmons, 31
 
 376 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, ap- 
 pears to be absolutely incapable of making a contract, so 
 that his deed is void at law. If the degree of intoxica- 
 tion 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 con- 
 tracting party was drawn in to drink by the contrivance 
 of the other, (e) 1 
 
 The same principle which vitiates a contract with an 
 incapacitated person is extended in equity to avoid benefits 
 
 (e) 2 Sug. on Pow. 178 ; Cooke v. Clayworth, 18 Ves. 12 ; Lightfoot v. 
 Heron, 3 Y. & C. 586 ; 1 Story on Eq. s. 230-233. 
 
 Qa. 512 ; Tally's Ex'rs v. Smith, 1 Cold. (Tenn.) 291 ; Seller v. Jones, 22 
 Ark. 92; though not from loss of memory : Thompson v. Gossitt, 23 Ark. 
 175. As to contracts by illiterate persons, see Price v. Price, 1 De G., M. 
 & G. 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. A 
 contract will not be set aside on the ground of greater superiority of in- 
 tellect in one of the parties, if the other party was of legal capacity to 
 contract : Thomas v. Sheppard, 2 McC. Ch. 36. And the mere fact that 
 an agreement is improvident, is no ground for setting it aside : Green v. 
 Thompson, 2 Ired. Ch. 365. 
 
 1 And see to the same effect Morrison v. McLeod, 2 Dev. &Bat. Eq. 221 ; 
 Hotchkiss v. Fortson, 7 Yerg. 67; Hutchinson v. Brown, 1 Clarke Ch. 
 408 ; Harbison . Lemon, 3 Blackf. 51 ; Maxwell v. Pittenger, 2 Green Ch. 
 156 ; Whitesides v. Greenlee, 2 Dev. Eq. 152 ; Crane v. Conklin, Saxt. 346 ; 
 Calloway . Witherspoon, 5 Ired. Eq. 128 ; Phillips v. Moore, 11 Mo. 600 ; 
 Marshall v. Billingsly, 7 Ind. 250. As to specific performance, however, 
 se 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 understanding, 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; Harbison v. Lemon, 3 
 Black. 57. And see further on this" subject, Lavette v. Sage, 29 Conn. 
 577 ; Futrill v. Futrill, 5 Jones Eq. 61 ; Dunn v. Amos, 14 Wis. 106.
 
 OF RESCISSION AND CANCELLATION. 377 
 
 obtained by trustees from their cestuis que trustent, or by 
 other persons sustaining a fiduciary character from those 
 in regard to whom that character exists. 1 
 
 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 Imy or sell in an honest case, he might do 
 so in one having that appearance, but which, from the in- 
 firmity 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, how- 
 ever, 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 
 
 1 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 
 standing in any fiduciary position. See the American cases collected, 
 Hill on Trustees, 4th Am. ed. 243-256; and see ante, note, p. 61. In 
 Smith v. Kay, 7 II. L. Gas. 750, it was said by Lord Cranworth that the 
 cases of parent and child, guardian and ward, &c., are but instances of 
 the application of a general principle ; while Lord Kingsdown remarked 
 that the rule applied to every case " where influence is acquired and 
 abused where confidence is reposed and betrayed." See also the remarks 
 of Turner, L. J., in Rhodes r. Bate, L. R. 1 Ch. Ap. 257. 
 
 The director of a railway company is a trustee, and, as such, is pre- 
 cluded from dealing, on behalf of the company, with jiimself, or with a 
 firm of which he is a partner : Aberdeen Ry. Co. v. Blaikie Brothers, 1 
 Macq. Scott. App. Cas. 461 ; 23 L. T. 315 (H. of L.). It was there held, 
 indeed, that the rule was applicable to all contracts, indifferently, whether 
 as to real estate, or personalty, or mercantile transactions.
 
 378 ADAMS'S DOCTRINE OF EQUITY. 
 
 so, he must fully divest himself 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 
 benefit, (g) And where even any person stands in a re- 
 lation of special confidence towards another, so as to ac- 
 quire 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 
 connection, of having it set aside as unduly obtained. 1 
 
 (f) Supra, Prohibition of personal benefit to a trustee. 
 
 ( g) Gillett v. Peppercorne, 3 Beav. 78 ; Taylor v. Salmon, 4 Myl. & Cr. 
 134. 
 
 1 See notes to pages 57 and 61, ante. 
 
 A court of equity looks with extreme jealousy on transactions between 
 parties who stand in any fiduciary relations, or relations of a similar char- 
 acter, 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 un- 
 derstandingly, and with full knowledge of the circumstances, and apart 
 from the bias of that connection, will set them aside. This rule applies to 
 attorney and client: Greenfield's Esi., 14 Penn. St. 504 ; Leisenring v. 
 Black, 5 Watts 303 ; Hockenbury v. Carlisle, 5 W. & S. 350 ; Stockton v. 
 Ford, 11 How. U. S. 232; Poillon v. Martin, 1 Sandf. Ch. 569 ; Salmon v. 
 Cutts, 4 De G. & Sm. 131 ; Robinson v. Briggs, 1 Sm. & G. 184 ; Merritt v. 
 Lambert, 10 Paige 357; 2 Denio 607 ; Howell v. Ransom, 11 Paige 538; 
 Mott v. Harrington, 12 Verm. 199 ; Brock v. Barnes, 40 Barb. 521 ; Tyr- 
 rell v. The Bank, 10 H. Lds. Gas. 26 ; Spring v. Pride, 10 Jur. N. S. 646 ; 
 Wall v. Cockerell, 10 H. Lds. Gas. 229 ; Gresley v. Mousley, 4 De G. & J. 
 78 ; and where a client, indebted to a solicitor, made an absolute convey- 
 ance, it has been held to stand as a mortgage merely : Pearson v. Benson, 
 28 Beav. 598 ; Morgan v. Higgins, 5 Jur. N. S. 236. But the rule is dif- 
 ferent when the solicitor has assumed the hostile attitude of a pressing 
 creditor : Johnson . Fesemeyer, 3 De G. & J. 13. And agreements be- 
 tween attorney and client were, under the circumstances, upheld in Moss 
 v. Bainbrigge, 6 De G., M. & G. 292; Blagrave v. Routh, 2 K. & J. 509; 
 Clanricarde v. Henning, 30 Beav. 175 ; and a gift was held valid in Nesbit
 
 OF RESCISSION AND CANCELLATION. 379 
 
 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, (h) A guardian, taking 
 from his ward, is bound by the same rule ; a minister of 
 religion, ^taking from those under his spiritual r*-ioc-i 
 charge, may be bound by it with even greater 
 stringency, (z) 1 The same general principle applies to all 
 
 (A) Edwards v. Meyrick, 2 Hare 60. 
 
 (ij Huguenin v. Basely, 14 Ves. 273 ; Thompson v. Heffernan, 4 Dru. & 
 W. 285. 
 
 v. Lockman, 34 N. Y. 167. The rule applies also to parent and child : 
 Slocum r. 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, 7 De G., M. & G. 597 ; King v. Savery, 1 Sm. & G. 
 -~ 1 : 5 H. L. Cas. 627 ; though the transaction may be validated by lapse 
 of time : Wright v. Vanderplank, 2 K. & J. 1 ; 8 De G., M. & G. 133 ; 
 guardian and ward : Johnson v. Johnson, 5 Ala. 90 ; Caplinger . Stokes, 
 Meigs 175 : Bostwick v. Atkins, 3 Const. 53 ; Williams v. Powell, 1 Ired. 
 Eq. 460 ; Scott . Freeland, 7 Sm. & M. 410 ; Sullivan v. Blackwell, 28 
 Miss. 737 ; Wright v. Arnold, 14 B. Monr. 638 ; Witman's Appeal, 28 
 Penn. St. 378 ; Hawkins's Appeal, 32 Id. 263 ; physician and patient : Bill- 
 age v. Southee, 9 Hare 534; Aherne v. Hogan, 1 Drury 310; Whitehorn 
 v. Hines, 1 Munf. 559 ; see, however, Daggett v. Lane, 12 Mo. 215; clergy- 
 men: Greenfield's Estate, 24 Penn. St. 232; Nachtrieb v. The Harmony 
 Settlement, 3 Wallace, Jr. 66 ; or 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 ; James v. Holmes, 8 Jur. N. S. 553, 732 ; Sears v. Shafers, 2 
 Seld. 268 ; Harkness v. Fraser, 12 Fla. 336. It has been recently held, 
 however, that a provision in a will, in favor of the solicitor by whom the 
 will be drawn, will not be held void in equity, unless where it would be 
 so held at law, or in the ecclesiastical courts : Hindson v. Wetherell, 5 
 De G., M. & G. 301. 
 
 As to contracts by trustees, agents, &c., see ante, 61, note. 
 
 1 Greenfield's Estate, 24 Penn. St. 232.
 
 380 ADAMS'S DOCTRINE OF EQUITY. 
 
 the variety of relations in which dominion may be ex- 
 ercised by one person over another ; but in proportion as 
 the relationship is less known and definite, the presump- 
 tion of fraud is less strong. Where the known and definite 
 relationship exists of trustees and cestui que trust, attorney 
 and client, or guardian and ward, the conduct of the party 
 benefited must be such as to sever the connection, and to 
 place him in the same circumstances in which a mere 
 stranger would have stood, giving him no advantage be- 
 yond the kindly feeling which the connection may have 
 caused. Where the only relation is that of friendly habits 
 and habitual reliance on advice and assistance, accompanied 
 by partial employment in business, care must be taken that 
 no undue advantage shall be made. 1 But no rigorous defi- 
 nition can be laid down, so as to distinguish precisely be- 
 tween the effects of natural and often unavoidable kindness, 
 and those of undue influence or undue advantage.^) 
 
 Another instance of fraud where there is a fiduciary 
 relation is when a person having a power of appointment 
 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 appoint 
 it to one of the children upon a bargain beforehand for his 
 own benefit. (l) z It was also formerly held, that illusory 
 
 (k) Hunter . Atkins, 3 M. & K. 113 ; Dent v. Bennett, 4 M. & C. 269. 
 (1) Daubeny v. Cockburn, 1 Meriv. 626 ; 2 Sug on Powers, c. xi., s. 2 ; 
 [or for the benefit of a husband : 19 Jur. 50.] 
 
 1 See Miller v. Welles, 23 Conn. 21. 
 
 2 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 bar- 
 gain, though both by the same deed : Rowley v. Rowley, 18 Jur. 306 ; 1 
 Kay 242 ; 23 L. J. Ch. 275. A benefit to the appointer, is a corrupt 
 motive, though such benefit does not come out of the fund appointed, 
 s emble : Rowley v. Rowley, ut supra. See, also, on this subject, Aga. 
 
 v. Squire, 19 Jur. (1 Id. N. S.) 50.
 
 OF RESCISSION AND CANCELLATION. 381 
 
 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 with principle its avoidance p-i Q~-I 
 in equity. The doctrine is now abolished by 
 statute, (m) 1 
 
 On the same principle it is held, that where a marriage 
 is required to be by consent of trustees, and the trustees 
 withhold consent from a corrupt motive, the Court of 
 Chancery may interfere. And it has been contended, 
 that if the person whose 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 hon- 
 estly, 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 
 
 (m) Butcher v. Butcher, 9 Ves. 382 ; 1 Sug. on Powers, c. vii., s. 6 ; 11 . 
 Geo. 4 & 1 Wm. 4, c. 46. 
 
 (n) Clarke v. Parker, 19 Ves. 1. 
 
 1 Stolworthy v. Bancroft, 10 Jur. N. S. 762 ; Ward r.JTyrrell, 25 Beav. 
 563. This doctrine has been disapproved of in the United States: see 
 Fronty r. Fronty, 1 Bail. Eq. 529 ; Cowles v. Brown, 4 Call 477; Graeff v. 
 De Turk, 44 Penn. St. 527 ; note to Aleyn v. Belchier, 1 Lead. Cas. Eq. 
 304, 3d- Am. ed.
 
 382 ADAMS'S DOCTRINE OF EQUITY. 
 
 referred to are bargains made with expectant heirs or 
 remaindermen, during the lifetime and without the know- 
 ledge of the parent or other ancestor. 1 Bargains of this 
 kind are not necessarily and absolutely void. They may 
 be sustained ab initio, if they are proved free of unfairness 
 or inadequacy ; or they may be made good afterwards by 
 the bargainer, either by express confirmation or by con- 
 tinued acquiescence, after the original pressure of his ne- 
 cessities has ceased. (0) 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 
 
 l~*1 R7~l P aren ^ or ancestor, who is misled into leaving 
 his ^estate not to his heir or family, but 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 ad- 
 
 (o) King v. Hamlet, 2 M. & K.456 ; 3 Cl. & Fin. 218 ; Roberts v. Tuns- 
 tall, 4 Hare 257. 
 
 2 See Jenkins et al. v. Pye et al., 12 Peters 241 ; and also Varick v. Ed- 
 wards, 1 Hoff. Ch. 383, where it was held that the sale of the expectation 
 of an heir of an inheritance, in real as well as in personal estate, will be 
 supported, if made bond fide and for a valuable consideration. And see 
 Larrabee v. Larrabee, 34 Maine 477 ; Powers' Appeal, 63 Penn. St. 443 ; 
 Mastin . Marlow, 65 N. C. 695 ; Lowry v. Spear, 7 Bush (Ky.) 451. The 
 purchaser of a reversionary interest, at least from an expectant heir, is 
 bound, if the transaction be impeached within a reasonable time, to satisfy 
 the court that he gave the market value : Lord Aldborough v. Trye, 7 Cl. 
 & Fin. 436 ; Edwards v. Burt, 2 De G., M. & G. 55. The mere reference to 
 an actuary, to determine such value, without regard to local circumstances 
 or 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 seem, an heir 
 expectant, within the rule : Davidson v. Little, 22 Penn. St. 252. On the sub- 
 ject of sales by reversioners and expectant heirs, see Hill on Trustees, 4th 
 Am. ed. 238, note.
 
 OF RESCISSION AND CANCELLATION. 383 
 
 vanced, and generally, though not necessarily, for the 
 costs of suit as on a common decree to redeem, (p) The 
 soundness of this equity, whenapplied toreversioners, 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 improvidence in 
 the bargain, (q) It may be doubted too, whether the rule 
 has been productive of much good, even to the parties 
 whom it was meant to protect, and whether it has not 
 prevented them from selling their interest at the fair 
 value, and compelled them to accept less favorable 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 him 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 parent, who 
 disapproved of the marriage, and who would be misled 
 into making a provision for his daughter, which, had he 
 known of the bond, he might not have done, or might 
 have done in such a manner as would have prevented the 
 marriage, (r) 
 
 *The third ground on which a transaction may p, oo-, 
 be rescinded, though not vitiated by illegality or 
 
 (p') Earl of Chesterfield v. Janssen, 1 Atk. 301 ; 2 Ves. 125 ; Peacock . 
 Evans, 16 Id. 512 ; King v. Hamlet, 2 M. & K. 456 ; 3 Cl. & Fin. 218 ; 
 Newton r. Hunt, 5 Sim. 511 ; Edwards v. Browne, 2 Coll. 100; 1 Sug. V. 
 & P. 444-464 ; 1 Story on Equity, * 334-348. 
 
 (q) Wood c. Abrey, 3 Mad. 417 : Davis v. Duke of Marlborough, 2 Sw. 
 140, note. 
 
 (r) Woodhouse r. Shepley, 2 Atk. 535 ; Cock v. Richards, 10 Ves. 429.
 
 384 ADAMS'S DOCTRINE OF EQUITY. 
 
 fraud is that it has been carried on in ignorance 1 or mis- 
 take of facts material to its operation. 
 
 The most direct illustration of this principle occurs in 
 the doctrine of the common law, the money paid volun- 
 tarily under a mistake of fact may be recovered back as 
 money had and received. 2 On the same principle, acts 
 which have been done voluntarily under a like mistake 
 may be recalled or annulled by a suit in equity; as, for ex- 
 ample, 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 accordance 
 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 suppose to exist. Such, for ex- 
 ample, would be the case where the subject of sale is a 
 remainder after an estate tail; and the estate tail, without 
 
 (s) East India Company v. Donald, 9 Ves. 275. 
 
 1 A party relying on ignorance must show that he could not have ob- 
 tained the necessary information with due diligence : Wason . Wareing, 
 15 Bea. 151. 
 
 2 The court will open settlements made by mistake, although receipts in 
 full have passed : McCrae . Hollis, 4 Dessaus. 122 ; Russell v. Church, 65 
 Penn. St. 9 ; and money paid by mistake, and on a usurious agreement 
 above the legal interest, was recovered back by English bill : Ashbrook v. 
 Watkins, 3 Monr. 82. Where there is error in a settlement, and notes are 
 given in consequence of such error or mistake, equity will relieve : Barnett 
 v. Barnett, 6 J. J. Marsh. 499. But see Clarke v. Dutcher, 9 Cow. 674 ; 
 Bispham v. Price, 15 How. U. S. 162. On the subject generally, see notes 
 to Stapilton v. Stapilton, 2 Lead. Gas. Eq. 684, 3d Am. ed. ; Larrabee v. 
 Larrabee, 34 Maine 477 ; Hoge v. Hoge, 1 Watts 216 ; Steele v. White, 2 
 Paige 478 ; Currie . Steele, 2 Sandf. S. C. 542 ; Bradley v. Chase, 22 
 Maine 524. Equity has jurisdiction to cancel a patent for land granted by 
 the United States under mistake or ignorance : United States v. Stone, 2 
 Wall. S. C. 525 ; Hughes v. United States, 4 Id. 232.
 
 OF RESCISSION AND CANCELLATION. 385 
 
 the knowledge of either party, has been previously 
 barred. (t) 1 
 
 The most ordinary applications for this class of relief 
 occur where releases or compromises have been made af- 
 fecting rights, of which the existence was unknown or 
 the character mistaken by the party executing the release 
 or compromise; and there are three forms in which such 
 ignorance or mistake may exist, viz. : 1. Where the re- 
 lease or compromise refers to other matters, and the facts 
 originating the particular right are unknown to the parties, 
 or are mistaken by them ; 2. Where the uncertainty 
 either of the facts or of the law is- present to the parties' 
 minds, and they intend to compromise their rights ; and 
 3. Where the facts are known, but the law is mistaken. 
 
 In the first class of cases, where the instrument is 
 executed, not by the way of releasing or compromising a 
 ^particular right, but in ignorance or mistake as p^ ^Q-, 
 to the facts which originate that right, such in- 
 strument would be set aside in equity, (w) 2 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, 
 
 (0 Hitchcock v. Giddings, 4 Price 13}; 1 V. & P. 389; Colyer v. Clay. 
 7 Bea. 188. 
 
 (u) Farewell v. Coker, cited 2 Meriv. 353 ; Naylor v. "Winch, 1 S. & S. 
 555, 562 ; Pritt v. Clay, 6 Beav. 503. 
 
 1 In Cochrane r. Willis, 34 Beav. 359, the court relieved against a sale of 
 timber to a remainderman which had been made under the mistaken im- 
 pression, common to both parties, that a tenant for life was alive, when, 
 in fact he was dead, and the remainderman was therefore entitled to the 
 timber. 
 
 2 See note to pp. 168, 169 ; Broughton v. Hutt, 3 De G. & J. 501. 
 
 25
 
 386 ADAMS'S DOCTRINE OF EQUITY. 
 
 originating in mistake or ignorance of facts as to what 
 their rights actually are.(e/) 
 
 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 of 
 benefit which he relinquished, cannot create an equity, (w) 1 
 
 The third class of cases, where the facts are known but 
 the law is mistaken, have been to some extent the subject 
 of conflicting authorities. The rule at law is clear, that 
 "money paid by a man with full knowledge of all the 
 circumstances, or with the means of such knowledge in 
 his hands, cannot be recovered back again on account 
 of such payment having been made in ignorance of the 
 law."(#) 2 The principle ought to be the same in equity. 
 
 (e) Stockley v. Stockley, 1 Ves. & B. 23, 30; Dunnage . White, 1 
 Swanst. 137 ; Neale v. Neale, 1 K. 672 ; Westby v. Westby, 1 Conn, & L. 
 537 ; Gordon v. Gordon, 3 Swanst. 400. 
 
 (w) Attwood v. , 1 Russ. 353 ; 5 Id. 149 ; Leonard v. Leonard, 2 
 
 Ball. & B. 171 ; Stewart v. Stewart, 6 Cl. & F. 911. 
 
 (x) Bilbiew. Lumley, 2 East 469. 
 
 1 See Ray and Thornton v. Bank of Kentucky, 3 B. Monr. 510. 
 
 2 See note to p. 170. See, also, the case of Underwood v. Brockman, 4 
 Dana 309 ; and vol. 23 of the American Jurist, pp. 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 arrangement will be set aside : 
 Lawton v. Campion, 18 Jurist 818 ; 23 L. J. Ch. 505 ; 48 Beav. 87. 
 
 So if a party, in ignorance of a plain and settled principle of law, is in- 
 duced to give up his property, that ignorance is a ground for equitable
 
 OF RESCISSION AND CANCELLATION. 387 
 
 The authorities which appear most opposed to it are those 
 of Bingham t>. Bingham, (y) and Lansdown^. Lansdown. (2) 
 In the *first case the defendant had sold to the r*i QQ-I 
 plaintiff an estate, which in fact belonged to him 
 already, but which both parties believed, under a mistake 
 of law, to belong to the defendant. The Master of the 
 Rolls decreed repayment of the purchase-money, saying 
 there was a plain mistake. It has been said by Lord Cot- 
 tenham, 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. 
 
 (y) I Yes. Sr. 126. (z) Mosley 364 ; 2 Jac. & W. 205. 
 
 (a) 6 Cl. & F. 968. 
 
 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 . 
 Godfrey, 18 Jur. 165, affirmed 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 r. Mill, 7 Hare 502, affirmed 12 Jur. 1035.
 
 388 ADAMS'S DOCTRINE OF EQUITY. 
 
 But the arrangement was afterwards set aside at the 
 nephew's suit, the Court saying that the maxim "ignoran- 
 tia juris neminem excusat" meant only that ignorance can- 
 not 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 compro- 
 mise, but that it is impossible to ascertain the real facts, 
 and that the restriction of the maxim to criminal cases is 
 not recognised by modern decisions, (ft) It is said, too, 
 that if a party acting in ignorance of a plain and settled 
 principle of law is induced to give up a portion of his un- 
 disputable property to another, under the name of a com- 
 promise, he shall be relieved from the effect of his 
 mistake. (c) 1 Subject, however, to any exception which 
 may exist on this ground, it seems now to be clearly 
 established that in *equity as well as at law, a 
 J 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, 
 
 (6) Stewart tv Stewart, 6 Cl. & Fin. 968. 
 
 (c) Naylor v. Winch,. 1 S.. & S. 555, 564 ; see also Stockley v. Stockley, 
 1 Ves. & B. 31 ; Saunders v. Lord Annesley, 2 Sch. & L. 73, 101. 
 
 (d] Cholmondeley v. Clinton, 2 Meriv. 171, 233, 328 ; Stewart v. Stewart, 
 6 Cl. &. F. 911 ; DenysV Shuckburgh, 4 Y. & C. 42 ; 1 Story on Equity, 
 s. 116-132. 
 
 1 Equity will relieve against a mistake of law acted upon and brought 
 about by undue influence : Jordan v. Stevens, 51 Maine 78 ; Freeman v, 
 Curtis, Id. 140. 
 
 2 Brown v* Lamphea*, 35 Verm. 252, is a good illustration of the relief 
 afforded. In that case the complainant had conveyed a lot to the de- 
 fendant, intending to reserve the use of a spring therein situated by which 
 other property ofxthe complainant was supplied with water ; but, owing 
 to a mistake of the scrivener, the reservation was not made. The purchaser 
 was, at the time of the conveyance, ignorant of the existence of the spring, 
 but subsequently discovered it, and attempted to stop the vendor's use 
 thereof. Upon a bill filed by the vendor, it was held that the mistake was
 
 OF RESCISSION .AND CANCELLATION. 389 
 
 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. 1 The Court will remit both par- 
 ties to their original positions, and will not relieve the 
 obligor from his liability, leaving him the fruits of the 
 transaction of which he complains. (<?) 2 If, again, a decree 
 be asked for the cancellation of an invalid annuity deed, 
 it must be on the terms of having an account taken of all 
 receipts and payments on either side, and payment made 
 of the balance. (/) It has been already stated, in ac- 
 cordance with the same principle, that a purchase from an 
 expectant heir or reversioner will not be set aside abso- 
 lutely, but will be ordered to stand as a security for the 
 amount paid. And therefore, if the party complaining 
 has done any act, when relieved from his necessities, by 
 which the rights of the other are affected, so that he can- 
 not be replaced in statin quo., he cannot afterwards repu- 
 diate the contract. (g) 
 
 (e) Hanson . Keating, 4 Hare 1-6. 
 
 (f) Byne v. Vivian, 5 Yes. 604. 
 
 (g) King v. Hamlet, 2 M. & K. 456 ; 3 Cl. & Fin. 218. 
 
 one against which equity would relieve, and that the defendant must either 
 execute a conveyance of the right to the spring, or reconvey the lot upon 
 repayment of his purchase-money. 
 
 1 Daniell v. Mitchell, 1 Story 173; Harding . Handy, 11 Wheat. 103; 
 Dower v. Fortner, 5 Port. 9 ; Brogden v. Walker, 2 Har. & Johns. --'> -. 
 Waters v. Lemon, 4 Hamm. 229 ; Lowry v. Cox, 2 Dana 469 ; White r. 
 Trotter, 14 Sin. & Marsh. 30; Bruen v. Hone, 2 Barb. S. C. 586; Dog- 
 rett c. Emerson, 1 Wood. & M. 195 ; Shaeffer r. Slade, 7 Blackf. 128 : Mill 
 K. Hill, 3 II. Lds. Cas. 828 ; Johnson v. Walker, 25 Ark. 196. This obli- 
 gation of " doing equity" in such cases, does not extend to transactions 
 unconnected with the one in suit : Wilkinson v. Fowkes, 9 Hare 592. 
 
 2 See Skilbeck v. Hilton, L. R. 2 Eq. 5S7 : Stewart v. Ludwick, 29 Ind. 
 230.
 
 390 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 mis- 
 carriage in the arbitrators, where the fact of such miscar- 
 riage 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 
 1. The reference may be by mere agreement of the par- 
 ties, unaided by the direction *of any Court ; 2. 
 It may be by a rule of Court, made by consent 
 in an action actual!/ depending; and 8. It may be by 
 agreement to refer existing disputes, which might be the 
 subject of a personal action or suit in equity, but with re- 
 spect to which no proceedings are actually depending. 
 In those cases where the submission is by mere agree- 
 ment, 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 one of its judges. (7^) 
 
 After the award has been made, the power of revoca- 
 tion is at an end; 2 and the award may be enforced by 
 either party, either by action on the- award or on the con- 
 tract to' refer, (*) or in a proper case by suit in equity for 
 specific performance,^) 3 or, if it has been made a rule of 
 Court, by an attachment for contempt. 
 
 (ft) 3 & 4 Wm. 4, c. 42, s. 39. 
 
 (t) Warburton . Storr, 4 B. & C. 103 (10 E. C. L. R.) 
 
 (k) Hall v. Hardy, 3 P. Wins. 187 ; Wood v. Griffith, 1 Sw. 43-54. 
 
 1 The subject of arbitration is regulated in most of the states, as in 
 Pennsylvania, by special statute. 
 
 2 See Tobey v. County of Bristol, 3 Story 800. 
 
 8 Smith v. Smith, 4 Rand. 95 ; McNear v. Bailey, 18 Maine 251 ; Paw- 
 ling v. Jackman, 6 Litt. 1 ; McNeil v. Magee, 5 Mason 244 ; Jones v. Bos-
 
 OF RESCISSION AND CANCELLATION. 391 
 
 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. 1 And even in the absence of actual miscon- 
 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 :(/) 2 or if they have acted 
 
 (I) Young v. Walter, 9 Ves. 364; Steff . Andrews, 2 Mad. 6. 
 
 ton Mill Corp., 4 Pick. 507 ; Cook . Vick, 2 How. (Miss.) 882 ; Kirksey . 
 Fike, 27 Ala. 383 : Wood v. Shepherd, 2 Patt. & H. 452 ; Story v. Xor- 
 wich & Worcester, 24 Conn. 94. An agreement to refer will not, however, 
 be specifically enforced : Conner v. Drake, 1 Ohio N. S. 166. 
 
 1 See Schenck's Adrnr. v. Cuttrell, 1 Green Ch. 297 ; Herrick v. Blair, 1 
 John. Ch. 101 ; Shermer . Beale, 1 Wash. 11 ; Pleasants et al. v. Ross, 1 
 Wash. 156; Van Cortlandt v. Underbill, 17 John. 405; Head . Muir, 3 
 Rand. 122: Ilardeman v. Burge, 10 Yerg. 202; Bispham v. Price, 15 How. 
 U. S. 162; Tracy v. Herrick, 3 Foster 381. 
 
 1 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 Dessaus. 570 ; and also where it exceeds the submission, the excess will 
 either be set aside, or the award in toto : Taylor's Admr. v. Nicolson, 1 
 Hen. & Munf. 66 ; McDaniell . Bell, 3 Heywood 264 ; Gibson et al. v. 
 Broadfoot, 3 Dessaus. 11. As to where the decision is given intentionally 
 against the law, see West Jersey R. R. v. Thomas, 21 N. J. Eq. 205. 
 
 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 Md. 208 ; Bridgman c. Bridgman, 23 Mo. 272. When, how
 
 392 ADAMS'S DOCTRINE OF EQUITY. 
 
 t 
 
 on a mistake as to a material fact, admitted by themselves 
 to have been made and to have influenced their judgment. 1 
 
 ever, the arbitrators heard evidence, without giving the opposite 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 evi- 
 dence pertinent and material to the controversy : Van Cortlandt v. Under- 
 bill, 17 John. 405 ; see Severance v. Hilton, 32 N. H. 289 ; McGuire . 
 O'Halloran, Hill & Denio 85. 
 
 1 And where the award does not carry out the intention of the arbitra- 
 tors, chancery will rectify it : Williams v. Warren, 21 111. 541. The more 
 recent authorities in England, have thrown very considerable doubt upon 
 the question of the admissibility of evidence of arbitrators, to show that 
 they made their award under a mistake as to some material fact. In the 
 case of Hall and Hinds, 2 M. & G. 847, evidence of this nature was ad- 
 mitted ; 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 discre- 
 tion, rarely to be exercised, but not to be refused in a case of gross in- 
 justice, as in that, which was one of account, where the parties agreed 
 upon the amount due, on a particular claim, but the arbitrator misunder- 
 standing them, and supposing that it was no longer a matter of difference, 
 omitted it from his award. It seems, however, clear on the English authori- 
 ties 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 except in peculiar cases. Thus in Boston 
 Water Power Co. v. Gray, 6 Metcalf 169, it was held that mistake as to 
 conclusion of fact, or of scientific 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, inad- 
 vertently assumed and believed, as in the use of false measures or weights ; 
 see Roloson v. Carson, 8 Md. 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. Ruffin, C. J., dissented, 
 however, in a forcible opinion ; and certainly it is not difficult to imagine 
 cases in which such an extreme doctrine would be productive of most ab- 
 surd 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. (Ala.) 71. The rules on this subject are the same in equity 
 as law. See Russell on Arbitrators 301, &c. ; Eaton v. Eaton, ut supr.
 
 OF RESCISSION AND CANCELLATION. 393 
 
 But unless *they voluntarily make the admission, p.,-. QO-I 
 they cannot be compelled to disclose the grounds 
 of their judgment, (m) 
 
 If any of these objections appear on the face of the 
 award, they invalidate it, and preclude its 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 
 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 reference retains 
 a superintending power, and the Court of Chancery has 
 its ancient jurisdiction over the parties to the action, of 
 which the reference is merely a modified continuance, (p) 
 In the third class, where a submission by agreement, not 
 made in any cause, has been made a rule 1 of Court under 
 the statute, the jurisdiction is exclusive in the Court of 
 which the submission has been made a rule. For it is 
 expressly enacted, that the Court of which it is made a 
 rule may set aside the award, if procured by corruption 
 or any undue means (which has been held to include mis- 
 take), if complaint be made before the last day of the 
 next term after its publication, that no other Court, either 
 of law or of equity, shall interfere. 
 
 (m) Knox . Simmons, 1 Ves. J. 369 ; Anon., 3 Atk. 644. 
 (n) Braddick . Thompson, 8 East 344; Pedley v. Goddard, 7 T. R. 73. 
 (o) Goodman v. Sayers, 2 J. & W. 249. 
 
 (p) Nichols v. Chalie, 14 Ves. 265 ; [Elliott v. Adams, 8 Black. 103 ; 
 bnt see Waples v. Waples, 1 Harring. 392.] 
 
 1 Or has been agreed to be made such : Heming v. Swinnerton, 1 Coop. 
 C. C. 386 ; Nichols v. Roe, 3 M. & K. 431.
 
 394 ADAMS'S DOCTRINE OF EQUITY. 
 
 [*194] *CH AFTER VI. 
 
 OF INJUNCTION AGAINST PROCEEDINGS AT LAW BILLS OF 
 
 PEACE INTERPLEADER INJUNCTION AGAINST TORT. 
 
 IT has been already observed, in treating of the equity 
 for rescission, that it is effectuated, not only by cancella- 
 tion 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 ordi- 
 nary 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. 1 The 
 restraint may be imposed either by a final decree, forbid- 
 ding- the act mperpetuumon establishment of the adverse 
 right, or by interlocutory writ, forbidding it pro tempore 
 whilst the right is in litigation. 
 
 The injunction against proceedings in another Court is 
 an auxiliary decree or writ, made or issued to restrain 
 parties from litigation before the ordinary tribunals where 
 
 1 The common injunction no longer exists in New York, the Courts of 
 that state being competent to administer relief on equitable as well as 
 legal grounds : Grant v. Quick, 5 Sand. S. C. 612. In Wisconsin injunc- 
 tions have been abolished, and relief is afforded under express statutory 
 provisions : Trustees v. Hoessli, 13 Wis. 348.
 
 OF INJUNCTION, ETC. 395 
 
 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 specific perform- 
 ance, against the purchaser. 1 The ground for imposing 
 
 1 The subject of the power of courts of equity to enjoin proceedings at 
 law will be found discussed in the notes to the Earl of Oxford's Case, 2 
 Lead Gas. Eq. 504. As a general rule, whenever, through fraud, mistake, 
 accident, or want of discovery, one of the parties in a suit at Jaw obtains, 
 or is likely to obtain, an unfair advantage over the other, so as to make 
 the legal proceedings an instrument of injustice, a court of equity will in- 
 terfere by injunction : Story's Equity, \ 885 ; Daniel's Chan. Prac. 1725 ; 
 and see How v. Mortell, 28 111. 478 ; Pierson v. Ryerson, 1 McCart. 181 ; 
 Ferguson v. Fisk, 28 Conn. 511 ; Weed v. Grant, 30 Id. 74; Dehon v. Fos- 
 ter, 4 Allen 545 ; Davis v. Hoopes, 33 Miss. 173 ; Hine v. Handy, 1 Johns. 
 Ch. 6 ; Atlantic DeLaine Co. v. Tredick, 5 R. I. 171 ; Dale v. Roosevelt, 5 
 Johns. Ch. 174 ; Matter of Merritt, 5 Paige 125 ; Miller v. McCan, 7 Paige 
 457 ; Dealafield v. State of Illinois, 26 Wend. 192 ; Beaty v. Beaty, 2 
 Johns. Ch. 430 ; Denton v. Graves, Hopkins 306 ; Bulows v . Committee of 
 O'Neall, 4 Dessaus. 394 ; Vennum v. Davis, 35.111. 568. 
 
 But equity will not interfere to restrain criminal proceedings : Holder- 
 staffe v. Saunders, 6 Mod. 16 ; The Mayor, &c., of York v. Pilkington, 2 
 Atk. 302 ; Montague v. Dudman, 2 Yesey 396 ; see Turner v. Turner, 15 
 Jur. 218. Nor where the ground for relief is equally available at law : 
 Harrison v. Nettleship, 2 My). & K. 423 ; Philhower v. Todd, 3 Stockton 
 54. In England equitable pleas and replications may be made use of at 
 law under the Procedure Act of 1854 ; but as this statute has been nar- 
 rowly construed, a party has still, in many instances, to come into Chan- 
 cery for relief: see Gomperta v. Pooley, 4 Drew. 448 ; Waterlow v. Bacon, 
 L. R. 2 Eq. 514. A court of equity will not interfere to prevent a party 
 from applying to Parliament for relief by special statute : Heathcote . 
 The North Staffordshire R. R. Co., 2 Macn. & G. 100 ; or to the legisla- 
 ture of a foreign country : Bill v. The Sierra Nevada Co., 1 De G., F. & J. 
 177. For further instances of the Court's refusal, on the other hand, to 
 grant an injunction to restrain proceedings before judgment, see Peck v. 
 Woodbridge, 3 Day 508 ; Mitchell v. Oakley, 7 Paige 68 ; Perrine v. 
 Striker, Id. 598 -, Tone v. Brace, 8 Id. 597 ; Glenn v. Fowler, 8 Gill & J. 
 340; Caldwell v. Williams, 1 Bailey's Ch. 175; Mactier v. Lawrence, 7 
 Johns. Ch. 206 ; Chadoin v. Magee, 20 Texas 476. Equity will sometimes 
 leave the parties to their mere legal rights : Bankhart v. Houghton, 27 
 Beav. 425. 
 
 No injunction to stay proceedings at law can be had against the United
 
 396 ADAMS'S DOCTRINE OF EQUITY. 
 
 this restraint is, that the ordinary tribunals cannot adju- 
 dicate on an equity ; and they would decide, therefore, on 
 a part only, and not on the whole of the dispute. The 
 P*19 r 1 * ex i s ^ ence ? however, of such an equitable element, 
 or the pendency of a suit respecting it, is not 
 recognised by those tribunals as a bar to their own pro- 
 cedure ; but the bar must be made effectual by an injunc- 
 tion out of Chancery, which does not operate as a prohibi- 
 tion to the ordinary Court, but restrains the plaintiff 
 personally from further steps, (a) 
 
 The proceedings to which this injunction most commonly 
 applies are those before the common law Courts. The 
 interlocutory writ is 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 prevent its issue, 
 he must appear within four days after the subpoena has 
 been served, and answer within eight days after his ap- 
 pearance. This writ is termed the common injunction. 1 
 
 (a) Sheffield v. Duchess of Buckinghamshire, 1 Atk. 624 ; Lord Portar- 
 lington v. Soulby, 3 Myl. & K. 104, 107. 
 
 States : Hill v. The United States, 9 How. 386. In the well-known and 
 important case of The State of Mississippi v. Johnson, President, 4 Wal- 
 lace S. C. 475, the Court refused to allow a bill to be filed, the object of 
 which was to enjoin the President of the United States from carrying out 
 the provisions of the Acts of Congress of March 2d and 23d, 1867, com- 
 monly known as the Reconstruction Acts. This decision was made upon 
 the ground that a court of equity had no right to interfere with the exer- 
 cise of executive discretion. 
 
 1 1?he distinction between common and special injunctions has been 
 abolished in England by statute 15 & 16 Viet. c. 85. In the United States, 
 as a general rule, the common injunction does not exist, but all injunc- 
 tions are granted on the merits. See Buckley v. Corse, Saxton 504 ; Hoff- 
 man's Ch. Prac. 78 ; Perry v. Parker, 1 Wood. & M. 280; Daniel's Ch. 
 Prac. 1716. In Pennsylvania, injunctions may be obtained at once, on
 
 OF INJUNCTION, ETC. 397 
 
 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 proceed- 
 ings at law. If afterwards, it only restrains execution, 
 and leaves the plaintiff at liberty to proceed to judgment. 
 But if the plaintiff in equity make affidavit that he be- 
 lieves the answer will afford discovery material to his 
 defence at law, he may obtain by another motion an order 
 extending it to stay trial. If the defendant, is diligent 
 enough to prevent the common injunction from issuing, 
 by filing a sufficient answer within the time allowed, the 
 only way to obtain the injunction is by moving specially 
 on the admissions in the answer. If t)ie proceedings at 
 law have been commenced under such circumstances that 
 the plaintiff in equity has no opportunity of obtaining 
 the common injunction, a special injunction may some- 
 times be obtained on affidavit under very special circum- 
 stances before answer, (b) 
 
 ' :; A- soon as the defendant has put in a full 
 answer, he may move to dissolve the injunction. 1 
 
 (fe) Drummond v. Pigou, 2 M. & K. 168 ; Bailey r. Weston, 7 Sim. 666. 
 
 security being given, without notice to the opposite party ; but wheneTer 
 so granted, it shall be taken to be dissolved, if the motion be not argued 
 within five days after the notice is given, unless otherwise specially 
 ordered. See the 75th of the Rules of Equity Practice of that state. 
 
 1 The defendant may move to dissolve an injunction for want of equity 
 appearing on the face of the bill ; and such a motion is like a demurrer : 
 Titus r. Mabee. -~> 111. 259. 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. Ch. 211; McFarland v. McDowell, 1 Car. Law Rep. 
 110; Cowles v. Carter, 4 Ired. Eq. 105 ; Livingston v. Livingston, 4 Paige 
 Ch. Ill ; Gibson v. Tilton, 1 Bland. Ch. 355 ; Perkins v. Hallowell, 5 Ired. 
 Eq. 24 : Williams v. Berry, 3 Stew. & Port. 284 ; Green . Phillips, 6 Ired. 
 Eq. 22o : Wakeinan r. Gillespy, 5 Paige 112; Stoutenburgh r. Peck, 3
 
 398 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 
 
 Green Ch. 446 ; Leigh . Clark, 3 Stockt. 113 ; Hollister v. Barkley, 9 N. 
 H. 230 ; Eldred v. Camp, Harring Ch. 163 ; Freeman . Elmendorf, 3 
 Halst. Ch. 655 ; Adams . Whiteford, 9 Gill 501 ; Dorsey v. The Hagers- 
 town Bank, 17 Md. 408 ; West v. Rouse, 14 Ga. 715 ; Mahone v. Central 
 Bank, 17 Id. Ill; Greenin v. Hoey, 1 Stockt. (N. J.) 137; Kohler v. Los 
 Angeles, 39 Cal. 510 ; Van Houten v. First Ref. Dutch Church, 2 Green 
 (N. J.) 126 ; Manhattan Gas Co. v. Barker, 7 Rob. (N. Y.) 523. 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 inj unction must always rest in the sound dis- 
 cretion of the court, to be governed by the nature of the case : Roberts v. 
 Anderson, 2 Johns. Ch, 204 ; Poor v. Carlton, 3 Sumn. 70 ; Bank of Mon- 
 roe v. Schermerhorn, 1 Clark 303 ; Canton Co. v. Northern, &c., R. R., 21 
 Md. 383; Hine v. Stephens, 33 Conn. 497. The injunction will not be 
 dissolved when the answers of the parties most interested admit the alle- 
 gations in the bill ; although the party restrained denies them : Zabriskie 
 v. Vreeland, 1 Beas. 179. The answer of a corporation must be verified 
 by the oath of some one of its officers: Bouldin v. The Mayor of Baltimore, 
 15 Md. 21. 
 
 Where the defendant in his answer admit, or does not deny the equity 
 of the bill, but sets up new matter of defence, on which he relies, the in- 
 junction will be continued to the hearing : Minturn v. Seymour, 4 Johns. 
 Ch. 497 ; Lindsay v. Etheridge, 1 Dev. & Bat. 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 Ala. 667; 
 Wilson.tf. Mace, 2 Jones' Eq. 5 ; State v. Northern Central Railway Co., 
 18 Md. 193 ; West Jersey R. R. v. Thomas, 21 N. J. Eq. 205. 
 
 It is a general rule, that an injunction will not be dissolved, on answer, 
 until the answers of all the defendants are put in. See Mooney v. Jordan, 
 
 13 Beav. 229 ; Bait. & Ohio R. R. v. Wheeling, 13 Gratt. 40 ; School Com- 
 missioners v. Putnam, 44 Ala. 506 ; Garrett v. Lynch, Id. 683. 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' Ch. 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 Ala. 539 ; Coleman v. Gage, 1 Clarke 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. Ch. 
 148 ; Noble v. Wilson, 1 Paige 164 ; Stoutenburgh v. Peck, 3 Green Ch.
 
 OF INJUNCTION, ETC. 399 
 
 technically termed, on the equity confessed, the injunc- 
 tion shall be at once dissolved, or whether it shall be con- 
 tinued to the hearing. The general principle of decision 
 is, that if the answer shows the existence of an equitable 
 question, such question shall be preserved intact until the 
 hearing. But the particular mode of doing this is matter 
 of discretion. 
 
 If the plaintiff is willing to admit the demand at law, 
 and to give judgment in the action, but is unwilling to pay 
 money to the defendant, which, if once paid, it might be 
 
 446 ; Vliet v. Lowmason, 1 Id. 404 ; Price . Clevenger, 2 Id. 207. See 
 also Goodwin v. State Bank, 4 Dessaus. 389. And this, too, where all the 
 defendaqts are implicated in the same charge, and the answer of all can 
 and ought to come in, but the plaintiff has not taken the requisite steps, 
 with reasonable diligence, to expedite his cause : Depeyster v. Graves, ubi 
 supra. See also Bond v. Hendricks, 1 A. K. Marsh. 594. The injunc- 
 tion cannot be dissolved, if the answer be evasive and apparently deficient 
 in frankness, candor, or precision : Little v. Marsh, 2 Ired. Eq. 18 ; Wil- 
 liams v. Hall, 1 Bland Ch. 193 ; Thomas v. Hall, 24 Ga. 481. Nor if it be 
 contradictory : Tong v. Oliver, Id. 199. Xor if there be extreme improb- 
 ability in its allegations : Moore v. Hylton, 1 Dev. Eq. 429. Nor if it be 
 merely upon information and belief: Ward v. Van Bokkelen I Paige 100; 
 Apthorpe r. Comstock, Hopkins 143; Poor p. Carleton, 3 Sumn. 70; 
 Holmes v. Georgia, 24 Ga. 636 ; Pidgeon v. Oatman, 3 Rob. (N. Y.) 206. 
 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 answer alone : Rodgers v. Rodgers, 1 Paige 
 426; Quackenbush . Van Riper, Saxton 476; Everly r. 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 2'jr,. 
 
 An injunction cannot be obtained on an amended bill having been dis- 
 solved on the original bill, for default, before appearance : Zulueta r. Yin- 
 cent, 14 Beav. 209 ; contra, Eyton r. Mostyn, 3 De G. & Sm. 518. See 
 further, post, note to p. 356.
 
 400 ADAMS'S DOCTRINE OF EQUITY. 
 
 difficult to recover, he may have the injunction continued 
 on payment of the money into Court. 1 If he is desirous 
 to try his liability at law, the injunction will be dissolved 
 with liberty to apply again after a verdict ; but unless 
 the defendant's right at law be admitted, he will not be 
 restrained from trying it, except where it is obvious from 
 his own answer that the relief sought must ultimately be 
 decreed. Where the question has been already tried at 
 law, and judgment obtained by the plaintiff there, he will 
 be restrained from issuing execution, if it appear that 
 there is an equitable question (c) to be decided before the 
 matter can be safely disposed of. If at the hearing the 
 decision is with the plaintiff in equity, the injunction is 
 made perpetual. 
 
 The right to grant this injunction after judgment, was 
 at one time the subject of a violent contest. It was al- 
 leged by the common law judges, that after judgment 
 there was no power in Chancery to enjoin against execu- 
 tion. 1 And it was said, that if after judgment, the Chancel- 
 lor grant an injunction and commit the plaintiff at law to 
 the Fleet, the Court of King's Bench will discharge him 
 by habeas corpus. In the reign of Henry 8, the assertion 
 
 (c) Playfair v. Thames Junction Railway Company, 9 L. J. N. S. 253 ; 
 1 Railway Cases 640 ; Barnard v. Wallis, Cr. & P. 85 ; Bentinck v. Wil- 
 link, 2 Hare 1. 
 
 1 See Anderson v. Noble, 1 Drewry 143. A debtor who seeks an in- 
 junction against a void judgment is not obliged to bring money into court 
 before he can claim its interposition : Edrington v. Allsbrooks, 21 Texas 
 186. 
 
 * In Macon, &c., R. R. Co. v. Parker, 9 Ga. 394, an injunction was 
 granted to restrain the sale under several^, 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.
 
 OF INJUNCTION, ETC. 401 
 
 of this jurisdiction *was one of the articles of im- r-%-. Q_- , 
 peachment against Cardinal Woolsey. The same 
 opposition was continued against Woolsey's successor, Sir 
 Thomas More. And in the reign of James I., under the 
 Chancellorship of Lord Ellesmere, a vehement discussion 
 took place on the subject, in which Lord Coke came for- 
 ward as the chief opponent of the jurisdiction. The ques- 
 tion 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 rea- 
 sons for requiring it were not, and could not by reason- 
 able diligence have been discovered before the trial. The 
 rule on this subject appears to be as fo'lows : First : that 
 if. after judgment, additional circumstances are discovered 
 not cognisable at law, but converting the controversy into 
 matter of equitable jurisdiction, the Court of Chancery 
 will interpose. Secondly : that even though the circum- 
 stances so discovered would have been cognisable 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 cognisable 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 in due time, the pro- 
 ceedings at law might have been stayed until the dis- 
 covery 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 mis- 
 
 (d) Note on Crowley's Case, 2 Sw. 22, n. 
 26
 
 402 ADAMS'S DOCTRINE OF EQUITY. 
 
 take in pleading, or other mismanagement,, or by a sup- 
 posed error in the judgment of the Court. (e) 1 
 
 (e) Bateman v. Willoe, 1 Sch. & L. 201 ; Harrison v. Nettleship, 2 M. & 
 K. 428 ; Taylor v. Sheppard, 1 Y. & C. 271. 
 
 1 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 ; Wierich v. De Zoya, 2 Oilman 
 385 ; Powers v. Butler, 3 Green Ch. 465 ; Wingate v. Hay wood, 40 N. H. 
 437; Emerson v. Udoll, 13 Verm. 477; Rust ;. Ware, 6 Gratt. 50: Hum- 
 phreys 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 Illinois 375 : 
 Burton v. Wiley, 26 Verm. 430 ; Conway v. Ellison, 14 Ark. 360 ; Trevor 
 v. McKay, 15 Ga. 550 ; Moore v. Gamble, 1 Stockton 246 ; Clifton v. Livor, 
 24 Georgia 91 ; Clute v. Potter, 37 Barb. 201 ; Blakesley v. Johnson, 13 
 Wis. 530; Day 0. Welles, 31 Conn. 344; Hendrickson v. Hinckley, 17 How. 
 U. S. 443 ; Givens . Campbell, 20 Iowa 79 ; Roebuck v. Harkins, 38 Ga. 
 174. An injunction may be granted against a judgment on the ground of 
 a subsequent release, though both a motion to set aside and for an audita 
 querela have been made and refused in the Court in which the judgment 
 was obtained: Williams v. Roberts, 8 Hare 315. As to injunction against 
 a decree in equity on the ground of after discovered evidence, see Bayse 
 v. Beard, 12 B. Monr. 581. An injunction was refused in Forsythe v. 
 McCreight, 10 Rich. Eq. 308. In Ridgway v. Bank of Tennessee, 1 1 Humph. 
 523, it was held that a judgment on which the sheriff, by collusion, had 
 falsely returned a service on the defendant, could be enjoined: followed 
 in Bell v. Williams, 1 Head 229 ; see also Owens v. Ranstead, 22 111. 167: 
 but contra, Walker v. Robbins, 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. Beals, 4 McLean 12; Methodist Church v. Mayor, 
 &c., of Baltimore, 6 Gill 391 ; Boyd v. The Chesapeake Co., 17 Md. 195; 
 Saunders v. Albritton, 37 Ala. 716. Nor for a defect of jurisdiction merely : 
 Stokes v. Knarr, 11 Wis. 391 ; Sanches v. Carriaga, 31 Cal. 170; see also 
 Crandall v. Bacon, 20 Wis. 639 ; nor for errors of law in a Court of com- 
 petent jurisdiction : Reeves v. Cooper, 1 Beas. 223. 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 defence at law, or 
 other neglect. See Truly v. Wanser, 5 How. U. S. 141 ; Essex v. Berry, 2
 
 OF INJUNCTION, ETC. 403 
 
 The jurisdiction to enjoin against proceedings in other 
 Courts is not limited *to proceedings in the Courts r*i ng-i 
 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 personally 
 within the jurisdiction, and are attempting to proceed 
 elsewhere in respect of part of a transaction, the whole of 
 which can be investigated by the Court of Chancery 
 alone. (/) 1 The injunction, however, in these cases, is not 
 
 (/) Duncan v. McCalmont, 3 Beav. 409 ; Glascott v. Lang, 3 M. & C. 
 
 Verm. 161: AVilliams v. Lockwood, 1 Clarke 172; Southgate v. Mont- 
 gomery. 1 Paige Ch. 41 ; Stanard v. Rogers, 4 Hen. & Munf. 438 ; Farmers' 
 Bank r. Vanmeter, 4 Rand. 553 ; Brickell v. Jones, 2 Hay. 357 ; Fentris 
 v. Robins, X. C. Term 177 ; Cullum v. Casey, 1 Ala. N. S. 351 ; Haughy 
 v. Strang, 2 Port. 177 ; Mock v. Cundiff, 6 Id. 24 ; Lucas v. Bank of Darien, 
 
 2 Stew. 280 ; Thomas r. Phillips, 4 S. & M. 358 ; Little r. Price, 1 Md. Ch. 
 182 ; Lyday v. Douple, 17 Md. 188; Sample v. Barnes, 14 How. U. S. 70 ] 
 Warner v. Conant, 24 Verm. 351 ; Lockard v. Lockard, 16 Ala. 423; Foster 
 r. State Bank, 17 Id. 672; Skinner v. Deming, 2 Cart. (Ind.; 558; Prewitt 
 r. Perry, 6 Texas 260 ; Briesch v. McCauley, 7 Gill 189 ; Hood r. N. Y. & 
 X. II. Railroad Co., 23 Conn. 609 ; Wynn r. Wilson, 1 Hempst. C. C. 698; 
 Harnsberger r. 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 ; Schricker v. Field, 9 Iowa 372 ; McCollum 
 v. Prewitt, 37 Ala. 573 ; Franklin Mill Co. v. Schmidt, 50 111. 208 ; Bryan 
 r. Hickson, 40 Ga. 465. Nor where the only ground is discovery, which 
 might have been sought and obtained before the judgment: Lansing r. 
 Eddy, 1 John. Ch. 49 ; Brown v. Swann, 10 Pet. 497 ; Thompson v. Berry, 
 
 3 John. Ch. 395 ; Bartholomew v. Yaw, 9 Paige 165 ; McGrew . Torn- 
 beckee 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: HewJett v. Hewlett, 4 
 Edw. Ch. 9. 
 
 In Gough v. Pratt, 9 Md. 526, it was held, that even after judgment 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. 
 
 1 A Court of Chancery will not, by injunction, restrain a suit or pro-
 
 404 ADAMS'S DOCTRINE OF EQUITY. 
 
 obtained as of course on the defendant's default, but must 
 be the subject of a special application to the Court, (g) 
 
 451 ; Bunbury v. Bunbury, 1 Bea. 318. [See Hope v. Carnegie, L. R. 1 
 Ch. Ap. 320.] 
 (g] Anon., 1 P. WmS. 301 ; Macnamara v. Macquire, 1 Dick. 223. 
 
 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. Ch. 276 ; Williams v. Ayrault, 31 Barb. 366 ; Coster v. Griswold, 4 
 Edw. Ch. 364. The United States Courts, in general, are prohibited by 
 statute (1793) from granting injunctions against proceedings in state 
 courts. See Rogers v. Cincinnati, 5 McLean 337 ; Orton v. Smith, 18 How. 
 263; Kittredge v. Emerson, 15 N. H. 227. An injunction issued by a state 
 court is inoperative in any manner to affect proceedings in the federal 
 Courts : U. S. v. Keokuk, 6 Wall. (U. S.) 514. By the 2d section of the 
 United States Bankrupt Act of March 2, 1867, general jurisdiction under 
 the Act is conferred upon the Circuit Courts, with authority on application 
 in proper form of any party aggrieved, to hear and determine the case in 
 a court of equity ; and by the 40th section of the same Act, the District 
 Courts, during the pendency of the rule to show cause why the defendant 
 should not be adjudged a bankrupt on a creditor's petition, may by injunc- 
 tion restrain the debtor and any other person " from making any transfer 
 or disposition of any part of the debtor's property not excepted by this 
 Act from the operation thereof, and from any interference therewith." 
 Under the first of these sections the Circuit Court, sitting in equity, has 
 jurisdiction in cases of involuntary bankruptcy, to restrain by injunction 
 a plaintiff in an execution in a state Court, from proceeding to the collec- 
 tion of a judgment, when the same was confessed, or the levy thereunder 
 procured to be made, with the knowledge on the part of the plaintiff, that 
 the defendant was insolvent or contemplated insolvency, and with an intent 
 to give a preference, or to defeat or delay the operation of the bankrupt 
 law. And in case of voluntary bankruptcy, the District Court will restrain 
 proceedings in state courts under state insolvent laws. But the United 
 States courts will not interfere in cases of voluntary bankruptcy involving 
 questions which a state court is fully competent to decide ; nor to disturb 
 a lien p'roperly acquired : Irving v. Hughes, 7 Am. Law Reg. N. S. 209 
 (U. S. Circuit Court, E. Dist. of Penna.). One Circuit Court cannot con- 
 trol or restrain proceedings in another : Roshell v. Maxwell, 1 Hemp. 25. 
 The execution of a judgment can be enjoined by no other court than that 
 from which the writ issued : Dufossat v. Berens, 18 La. Ann. 339. 
 
 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 : Suniner v. Marcy, 3 Wood. & Min. 105 ; McJilton
 
 OF INJUNCTION, ETC. 405 
 
 Injunctions have also been granted on special equities, to 
 restrain parties from filing affdavits of debt, with the 
 intent of issuing a fraudulent fiat of bankruptcy, (h) 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, (i) 
 
 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 jurisdiction of that Court, (k) 
 
 In addition to the injunctive jurisdiction in regular 
 suits, there is a similar authority exercised in a summary 
 
 (h) Attwood v. Banks. 2 Bea. 192 L Perry v. Walker, 1 N. C. C. 672. 
 (i) Halford v. Gillow, 13 Sim. 44 ; Thompson v. Derham, 1 Hare 358. 
 (k) Jackson v. Leaf, 1 J. & W. 229 ; Harrison . Gurney. 2 Id. 563 ; 
 Boulter v. Boulter, 2 Bea. 196, n. ; Infra, Administration. 
 
 v. Love, 13 111. 486 ; Pearce v. Olney, 20 Conn. 544 ; which last case was 
 affirmed in Dobson . Pearce, 1 Duer 143 ; affirmed on appeal, see 3 Am. 
 Law Reg. 206 ; which was the original suit. See also, Engel v. Schewer- 
 man, 40 Ga. 206. 
 
 Where an administration suit was pending in England, a Scotch corpo- 
 ration was restrained from proceeding against the intestate's estates in 
 Scotland, the service of the subpoena being at an office of the corporation 
 in London : McLaren v. Stainton, 22 L. J. Ch. 274. In Pennell v. Roy, 
 17 Jur. 247, 3 De G., Macn. & G. 126, however, it was hel4 that the Eng- 
 lish 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 entirely frivolous.
 
 406 ADAMS'S DOCTRINE OF EQUITY. 
 
 way, where proceedings have been taken in another Court, 
 r#iQQ-i against or by officers of the Court of *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 irregularly issued, that is a 
 matter to be dealt with by itself alone ; and if redress be 
 sought elsewhere an injunction will lie. If in acting under 
 a regular authority, its officers misconduct themselves, 
 that is a matter which may, at the discretion of the Court, 
 be either left to the ordinary tribunals, or examined by 
 itself. But the latter course is generally adopted, and 
 the parties are enjoined from having recourse to law. (7) 
 The officers of the Court may, e converse, 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. 1 
 
 (I) Frowd v. Lawrence, 1 J. & W. 635 ; Phillips v. Worth, 2 R. & M. 
 638; Aston v. Heron, 2 M. & K. 390; Chalie v. Pickering, 1 K. 749; 
 Empringham v. Short, 3 Hare 461 ; Evelyn v. Lewis, 3 Id. 472 ; Parley 
 v. Nicholson, 1 Conn. & L. 207 ; [Peck v. Crane, 25 Verm. 146.] 
 
 (m) Re Weaver, 2 M. & C. 441 ; Blundell v. Gladstone, 9 Sim. 455 ; Am- 
 brose v. Dunmow Union, 8 Bea. 43. 
 
 1 Sheffield Water Works v. Yeomans. L. R. 2 Ch. Ap. 8. See Black v.
 
 OF BILLS OF PEACE. 407 
 
 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 common right 
 against the lord; 1 or where the owner of an ancient 
 mill claims service to his mill from all the tenants of a 
 ^particular district. In all these cases, the only POQA-I 
 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 
 
 Shreve, 3 Halst. Ch. 440 ; Bond v. Little, 10 Ga. 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 . Little, 10 Ga. 
 395; Morgan v. Smith, 11 111. 194; Gunn v. Harrison, 7 Ala. 585; Lowe 
 v. Lowry, 4 Hammond 78 ; Harmer . Gwynne, 5 McLean 313 ; Paterson 
 & Hudson River R. R. Co. v. Jersey City, 1 Stockt. (N. J.) 434; Smith . 
 McConnell, 17 111. 135 ; unless where the parties to the controversy are 
 so numerous that a suit in equity is indispensable to comprehend them 
 all, and to prevent a multiplicity of suits : Eldridge v. Hill, ut supra ; 
 Xicholl v. Trustees, &c., 1 Johns. Ch. 166 ; Lupeer Co. . Hart, Harring. 
 Ch. 157 ; Nevitt v. Gillespie, 1 How. (Miss.) 108. 
 
 Where a bill is filed for the purpose of preventing a multiplicity of suits 
 at law, and to have the title to land finally settled in one suit, under the 
 direction of the chancellor, it seems that the bill will be sustained, though 
 there has been but one trial at law : Trustees of Huntington v. Nicoll, 3 
 John. 566. Bills to enjoin the defendant from repeated acts of trespass 
 resemble bills of peace : Livingston v. Livingston, 6 Johns. Ch. 497. Such 
 are bills to restrain the interference with or obstruction of a watercourse : 
 Corning v. The Troy Iron Factory, 39 Barb. 327 ; Holsman . The Boiling 
 Spring Co., 1 McCart. 335 ; Lyon v. McLaughlin, 32 Verm. 423 ; Angell 
 on Watercourses, \ 444 ; Scheetz's Appeal, 35 Penn. St. 88. Courts of 
 equity will also interfere by injunction to restrain the back flowage of 
 water : Sheldon v. Rockwell, 9 Wis. 166. See post 211, Nuisance. 
 
 1 A bill of peace will not lie to establish the rights of one commoner 
 alone ; it must be filed for himself and others : Phillips v. Hudson, L. R. 
 2 Ch. Ap. 242.
 
 408 ADAMS'S DOCTRINE OF EQUITY. 
 
 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. 
 
 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 book- 
 sellers 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 king- 
 dom.^) 1 
 
 There are two cases which constitute apparent ex- 
 ceptions to this rule, which are known respectively 
 
 (n) Mitf. 145, 146 ; How v. Bromsgrove, 1 Vern. 22 ; Tenham v. Her- 
 bert, 2 Atk. 483. 
 
 (o) Mitf. 147, 148 ; Dilly v. Doig. 2 Ves. J. 486. 
 
 1 No bill of peace will lie where the rights and responsibilities of the de- 
 fendants neither arise from, nor depend upon, nor are in any way connected 
 with each other : Randolph v. Kinney, 3 Rand. 394. See Millers. Grandy, 
 13 Mich. 540. An allegation that the defendants have fraudulently con- 
 federated to harass the plaintiff with suits will not uphold an injunction 
 when the defendants claim adversely to each other : McHenry v. Hazard, 
 45 Barb. (N. Y.) 657.
 
 OF BILLS OF PEACE. 409 
 
 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 sometimes 
 treated as if the City of London had filed a bill, in the 
 nature of a bill of peace, against several importers, claim- 
 ing to have the *duties permanently established. r#oA-i-i 
 From the report, however, that does not appear 
 to have been the case. It appears that the corporation 
 filed distinct bills against several importers ; first against 
 A., then against B., and then the bill in question against 
 C. Decrees being obtained against A. and B., they 
 claimed a right, not to enforce those decrees against C., 
 but to give in evidence the depositions on which they had 
 been founded ; alleging, however, at the* same time, that, 
 even without those depositions, they had, in the suit 
 against C. himself, given other proof sufficient to establish 
 their right. The decree decides, that the right was es- 
 tablished 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, there- 
 fore, 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 adjacent 
 grounds, and as claiming fisheries in that character. The 
 
 (p) City of London v. Perkins, 3 B. P. C. by Toml. 602 ; Mayor of York 
 v. Pilkington, 1 Atk. 282 ; Story on Pleading, s. 124, 125.
 
 410 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 LordiEldon.^) 
 
 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 
 l~*2021 c ^ ass or igi na tes *in the nature of the action of 
 ejectment, which is based on a fictitious dispute 
 between fictitious parties, so that the rights of the real 
 litigants are only indirectly tried. The consequence of 
 this is, that the result of the action is not conclusive, but 
 that fresh actions may be repeatedly brought, and the 
 successful party harassed by indefinite litigation. In 
 order to remedy this oppression, a jurisdiction has been 
 assumed by the Court of Chancery ; and a bill will lie, 
 after repeated trials at law and satisfactory verdicts, to 
 have an injunction against further litigation. 1 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 ver- 
 dicts given, refused to exercise it ; but his decision was 
 overruled by the House of Lords. (r) 2 
 
 (q) City of London v. Perkins, 3 B. P. C. 602 ; Mayor of York v. Pilking- 
 ton, 1 Atk. 282 ; Weale. West Middlesex Waterworks, 1J. & W. 356, 369. 
 
 (r} Earl of Bath v. Sherwin, Prec. Ch. 261 ; s. c. 4 B. P. C. by Toml. 
 373 ; Mitf. 143, 144. 
 
 1 See Marsh v. Reed, 10 Ohio 347. By statutory provisions 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 in- 
 terfere 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 main- 
 tained in a proper case, though the technical bar of the statute does not 
 apply : Craft v. Lathrop, 2 Wall. Jr. 103. 
 
 2 On a principle similar to that which governs bills of peace of the
 
 OF BILLS OP INTERPLEADER. 411 
 
 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 litigate the 
 matter amongst themselves, without involving the stake- 
 holder in their dispute. 1 
 
 The principle on which the jurisdiction is based, that 
 of protecting a mere stakeholder between conflicting claim- 
 ants, was always recognised at common law, and was 
 applied where a chattel had come to a man's possession by 
 accident, or by bailment from both claimants jointly, or 
 from those under whom both made title. 
 
 The technical forms of pleading at law excluded the 
 
 second class. Courts of Equity will interfere to quiet the enjoyment of a 
 right, or to establish it by a decree, or to remove a cloud from a title. 
 See Crews v. Burcham, 1 Black 352; Cross v. De Valle, 1 Wall. S. C. 1 ; 
 Kennedy v. Kennedy, 43 Penn. St. 417 ; Bean v. Coleman, 44 N. H. 539. 
 As to bills to remove a cloud from a title, see Doe v. Doe, 37 N. H. 268 ; 
 Kimberly r. Fox, 27 Conn. 307; Munson v. Munson, 28 Id. 582; Eldridge 
 v. Smith, 34 Verm. 484; Story's Eq. | 700; Chapter on Rescission and 
 Cancellation, ante. 
 
 1 Strange . Bell, 11 Ga. 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 Ch. 199 ; Lincoln v. Rutland, &c., R. R. Co., 24 Verm. 
 639 ; Mount Holly Turnpike Co. v. Ferree, 2 Green (N. J.) 117 ; Burton 
 v. Black, 32 Ga. 53 ; Hathaway v. Foy, 40 Mo. 540 ; Cady v. Potter, 55 
 Barb. (X. Y.) 463. The right of interpleader is given now by statute, in 
 England and many of the United States, to defendants at law in most 
 cases. In Missouri such a bill may be maintained against non-residents 
 in certain cases : Freeland v. Wilson, 18 Mo. (3 Bennett) 380. The de- 
 fendants to a bill of interpleader may compromise the dispute ; and the 
 complainant has no right to prevent this : Horton v. The Church, 34 Verm. 
 309.
 
 412 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 
 wnere *the same thing, debt, or duty was the 
 subject of both claims, (s) The equity originates 
 in the double claim made on the complainant and the in- 
 adequate protection afforded him at law, The fact, there- 
 fore, that both the claims are legal, does not preclude the 
 party sued from resorting to equity; 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, (t) The necessity, how- 
 ever, for bills of interpleader, where both the claims are 
 Idgal, is much diminished, although the jurisdiction is un- 
 affected, by a late statute, enacting that on the application 
 of the 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 de- 
 fendant does not collude with such third party, but is 
 ready to bring into Court or otherwise dispose of the sub- 
 ject-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, (w) 
 
 If one of the claims be equitable, the statute does not 
 apply, and the jurisdiction is in equity alone, (v) 1 
 
 (s) Mitf. 141 ; Crawshay v. Thornton, 2 M. & C. 1, 21. 
 
 (t) Lowndes . Cornford, 18 Yes. 299. 
 
 () 1 & 2 Wm. 4, c. 58. 
 
 (v) Langton v. Horton, 3 Bea. 464. 
 
 1 A bill of interpleader may be filed, although the claim of one of the 
 claimants is actionable at law, and that of the other in equity : Lozier's
 
 OF BILLS OF INTERPLEADER. 413 
 
 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. 1 
 
 *If the subject in dispute has a bodily exist- 
 tence, as in the original cases of interpleader at 
 law, no difficulty can arise on the ground of identity; 
 but where it is a chose in action, it becomes necessary to 
 determine what constitutes identity. And this is a ques- 
 tion 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 pur- 
 chasers ; because, although there was one question in 
 
 Ex'rs. v. Van Saun's Adm'rs., 2 Green's. Ch. 325 ; Yates v. Tisdale, 
 Ch. 71 ; Hamilton c. Marks, 3 De G. & Sm. 638. But see Hurst v. 
 don, 13 C. B. N. S. 750. 
 
 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 . Goldthwaile, 7 Ala. 281 ; Yates v. Tisdale, 
 supra ; Richards r. Salter, 6 Johns. Ch. 445. But it seems that where the 
 double claim has been occasioned by the act of the stakeholder, he has no 
 right to file a bill of interpleader : Desborough t. Harris, 4 De G., M. & G. 
 439. 
 
 1 See City Bank v. Bangs, 2 Paige Ch. 570; Hayes . Johnson, 4 Ala. 
 267 ; Briant v. Reed, 1 McCart. 271. If the bill shows affirmatively that 
 neither of the defendants has a right to the fund it will be dismissed on 
 demurrer: Barker v. Swain. 4 Jon. Eq. 220.
 
 414 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 a 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 pur- 
 chaser 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, (iv) 
 
 2. The party seeking relief must have incurred no in- 
 dependent liability to either claimant. 
 
 In the case, therefore, of a tenant sued by his landlord, 
 or an agent by his principal, a claim adverse to the land- 
 lord or principal will not warrant a bill of interpleader, 
 unless it originate in his own act, done after the com- 
 mencement of the tenancy or agency, and creating a 
 doubt who is the true landlord or principal, to whom the 
 tenancy or agency refers. 1 In like manner a bill of inter- 
 
 (w) Glyn v. Duesbury, 11 Sim. 139 ; Hoggart v. Cutts, Cr. & P. 197 ; 
 Slaney . Sidney, 14 Mee. & W. 800 ; 15 Law J. Exch. 72. 
 
 1 Whitewater, &c., Co. v. Comegys, 2 Cart. (Ind.) 469 ; Crane v. Burn- 
 trager, 1 Cart. 165 ; Cook v. Rosslyn, 1 Giff. 167. A strict bill of inter- 
 pleader cannot be maintained by a bailee or agent, to settle the conflicting 
 claims of bailor or principal, and a stranger who claims the property by a 
 distinct and independent title. Neither can an attorney maintain such a 
 bill to settle the claim for money which he has collected for his client : 
 Marvin . Elwood, 11 Paige Ch. M65. 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
 
 OF BILLS OF INTERPLEADER. 415 
 
 pleader will not lie, if the party seeking relief has ac- 
 knowledge a title *in one of the claimants, and r*<r>r\z-i 
 has thus incurred an independent liability to him. 
 If misrepresentation was used to obtain that acknowledg- 
 ment, 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, (x) ' 
 
 3. He must claim no interest. 1 
 
 It has been held, therefore, that if a deposit is made by 
 a purchaser at an auction, and the auctioneer is afterwards 
 sued for the deposit by the purchaser and vendor, he can- 
 not sustain a bill of interpleader against them, if he 
 claims to deduct from his deposit his commission and the 
 duty.(^) 2 
 
 () Crawshay v. Thornton, 2 M. & C. 1 ; Stuart . Welch, 4 Id. 
 305 ; Jew v. Wood, Cr. & P. 185. 
 
 (y) Mitchell F. Hayne, 2 S. & S. 63 ; Moore r. Usher, 7 Sim. 384 ; Big- 
 nold v. Audland, 11 Sim. 24. 
 
 the attorney undertook the collection ; and this, although he may be en- 
 titled to retain a part of it to compensate his services : Gibson v. Gold- 
 thwaite, 7 Ala. 281. So, an executor, standing between two claimants, 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 e. Dixon, 19 Ga. 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. See Crosby . Mason, 32 
 Conn. 482. 
 
 1 Anderson v. Wilkinson, 10 Sm. & M. 601. Yet it is no objection to a 
 bill of interpleader, that the complainant has an interest in respect of other 
 property not in the suit, but which might be litigated, that one party, 
 rather than the other, should succeed in the 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 : Oppenheim t?. Leo 
 Wolf, 3 Sandf. Ch. 571 : see also, Gibson v. Goldthwaite, 7 Ala. 281 ; Mc- 
 Henry r. Hazard, 45 Barb. (X. Y.) 657. 
 
 2 But, although he claims a lien he may subsequently withdraw his
 
 I 
 416 ADAMS'S DOCTRINE OF EQUITY. 
 
 If the circumstances be such as to Sustain the jurisdic- 
 tion, 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 ; x and on payment into Court of the amount 
 due may obtain an injunction against any proceeding com- 
 menced 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. (V) 2 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 drawn as to make the pay- 
 ment a condition precedent But the mere absence of an 
 offer to that effect in the bill is not a ground of demurrer, (a) 3 
 When an answer has been put in by the enjoined defend- 
 
 r*90fi~l an ^> ^ e ma y move ^ dissolve *the injunction, on 
 notice to the plaintiff and his co-defendant ; and 
 
 (z) Crawford v. Fisher, 10 Sim. 479 ; Moore v. Usher, 7 Id. 383. 
 (a) Sieveking v. Behrens, 2 M. & C. 581 ; Pauli v. Von Melle, 8 Siin. 
 327; Meuxw. Bell, 6 Id. 175. 
 
 claim and file a bill of interpleader : Jacobson v. Blackhurst, 2 John. 11. 
 486. 
 
 1 The bill must in general be filed before or immediately after the com- 
 mencement of the action, and not delayed till after verdict or judgment: 
 Union Bank v. Kerr, 2 Md. Ch. 460. But wher,e 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. 
 
 2 See Nelson v. Barter, 2 Hem. & M. 334. 
 
 3 Nash v. Smith, 6 Conn. 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. Ch. 405 ; see, also ; 
 Biggs v. Kouns, 7 Dana 411.
 
 OF BILLS OF INTERPLEADER. 417 
 
 if such co-defendant 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 out- 
 standing, because the Court cannot know what claim such 
 answer will make.(i) If the cause is carried to a hear- 
 ing, 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 Ihe plaintiff, though the liti- 
 gation may continue between the co-defendants ; and in 
 that case it may proceed without reviver, notwithstand- 
 ing the plaintiff's death, (d) 
 
 The only equity on which the jurisdiction of interplead- 
 er rests, is the danger of injury to the plaintiff from the 
 doubtful titles of the defendants. He is required, there- 
 fore, to satisfy the Court that this equity exists by annex- 
 ing to his bill an affidavit that he does not collude with 
 either claimant ; and the want of that affidavit is a ground 
 of demurrer.^) 1 For the same reason he should so con- 
 duct his proceedings as not to cause hardship and expense 
 to the litigant parties, beyond what his own protection 
 may require. (/) But he will be entitled to have his 
 costs properly incurred out of the fund in dispute, and 
 
 (b) Masterman v. Lewin, 2 Ph. 182. 
 
 (c) Townleye. Deare,3Beav. 213, 216; Crawford v. Fisher, 1 Hare 436, 
 441. 
 
 (d) Mitf. 60. [See Lyne v. Pennell, 1 Sim. N. S. 113.] 
 
 (e) Mitf. 49, 143 ; Bignold v. Audland, 11 Sim. 23. 
 
 (/) Sieveking v. Behrens, 2 M. & C. 581 ; Crawford v. Fisher, 1 Hare 
 436. 
 
 1 Gibson v. Goldthwaite, 7 Ala. 281 ; Atkinson v. Manks, 1 Cowen 
 C91 ; Shaw v. Coster, 8 Paige Ch. 339. See also, Marvin v. Elwood, 11 
 Paige Ch. 365. An objection to the form of the affidavit should not be 
 made at the time of the motion, but on demurrer : Hamilton r. Marks, 5 
 De G. & Sin. 638. 
 27
 
 418 ADAMS'S DOCTRINE OF EQUITY. 
 
 the Court will adjudicate on their ultimate payment, as 
 between the co-defendants.^) 1 
 
 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 
 J of the accident. By the provisions of that act, 
 if several persons suffer such damage, and the value of the 
 ship and freight is not sufficient to pay them all, any of 
 the owners may file a bill in equity against the claimants 
 to ascertain such value, and to obtain a rateable distribu- 
 tion thereof, annexing to the bill an affidavit that there is 
 no collusion, that all claimants are made parties, that the 
 yalue does not exceed an amount specified in the affidavit, 
 and that the claims exceed such value. And on such bill 
 and affidavit being filed, and payment made into Court of 
 the specified amount, he may obtain an injunction against 
 proceedings at law.(^) 
 
 The injunction against an act commenced or threatened, 
 by which an equity would be infringed, like that against 
 suing in the Courts of law, is often used as an auxiliary 
 process in respectof ordinary equities ; e.g., wherea trustee 
 is enjoined from committing a breach of trust, a covenantor 
 
 (g). Cowtan v. Williams, 9 Ves. 107 ; Campbell 0. Solomans. 1 S. & S. 
 462 ; Jones v. Gilham, Coop. 49 ; Fenn v. Edmonds, 5 Hare 514. 
 
 (A) 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.] 
 
 1 The stakeholder is entitled to costs out of the fund : Canfield v. Mor- 
 gan, 1 Hopkins 224 ; Aymer v. Gault, 2 Paige Ch. 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 272; Farley v. Blood, 10 
 Foster 354. '
 
 OF INJUNCTION AGAINST TORT. 419 
 
 from infringing his covenant/ or a fraudulent holder of a 
 negotiable security from indorsing it to a stranger. But 
 there is one class of cases in which the necessity for in- 
 
 1 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 Kimberly 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 considerable 
 degree in England, by the recent case of Lumley v. Wagner, 1 De G., 
 M. & G. 604 ; affirming s. c. 5 De G. & Sm. 485. See also, Great Northern 
 R. R. Co. v. Manchester R. R. Co., 5 De G. & Sm. 138 ; Gelston v. Sigmund, 
 '2~ Md. 334. In the former case it was laid down, that where a contract 
 contains covenants to do certain acts, and also to abstain from doing certain 
 acts, the Court has jurisdiction to restrain the breach of the negative cove- 
 nants, though it has no power to compel specific performance of the affirm- 
 ative 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 
 injunction may be granted against the breach of the latter portion of the 
 agreement. (Kemble v. Kean, overruled.) But in such cases the Court 
 will decline to interfere when its jurisdiction cannot be beneficially exer- 
 cised, or where its exercise would work injustice, as where the considera- 
 tion 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, supra ; Stocker v. Wedderburne, 26 L. J. Ch. 703. See also, De Mattos 
 v. Gibson, 4 De G. & J. 276 ; Peto v. R. R, Co., 1 Hem.'& M. 468, ante 81. 
 
 In Hamblin . Dinneford, 2 Edw. Ch. 529^ however, the case of Kemble 
 r. Kejin was followed, and the Court refused to enjoin an actor, who had 
 contracted to perform at the complainant's theatre and no other, from per- 
 forming at another theatre in violation of his agreement. Equity will not 
 indirectly by injunction compel the specific performance of a contract for 
 personal services : De Poe v. Sohlke, 7 Rob. (N. Y.) 280. 
 
 An injunction may be granted against a distinct breach of covenant, 
 though no damage be shown, or even, indeed, if such be shown to be posi- 
 tively harmless, or perhaps beneficial : Steward v. Winters, 4 Sandf. Ch. 
 587 : Dickenson . Grand Junction Canal Co., 15 Beav. 260. A Court has 
 jurisdiction to restrain by injunction acts which the defendant is bound 
 by duty or contract to abstain from : Dietrichsen v. Cabburn, 2 Phillips 
 52 ; Beckwith v. Howard, 6 R. I. 1. But not where there is a complete 
 remedy at law : Pusey v. Wright, 31 Penn. St. 387 ; Gallagher v. Fayette 
 Co. R. R., 38 Id. 102. Covenants not to do a particular act can be enforced 
 by injunction, although accompanied by a clause providing for stipulated 
 damages: Gillis v. Hall, 2 Brewst. (Pa.) 342.
 
 420 ADAMS'S DOCTRINE OF EQUITY. 
 
 junctive relief constitutes per se an independent equity ; 
 viz ., that of torts as a class of civil wrongs distinct from 
 cases of trust, of contract, and of fraud. 
 
 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. 1 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 particu- 
 lar acts, but those in respect of which it is most com- 
 P2081 mon ly *enforced, are five in number ; viz., waste, 
 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 
 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, convert- 
 ing arable land into pasture, or pasture into arable, 
 and removing articles affixed to the freehold. 3 With 
 
 1 See, in Pennsylvania, Denny v. Branson, 29 Penn. St. 382. 
 
 2 See Duvall v. Waters, 1 Bland 576. 
 
 3 Everything is waste which occasions a permanent injury to the inher- 
 itance, but the situation of this country requires an application of the rule 
 different from that which might be proper 5,n England: Williams on Real
 
 OF INJUNCTION AGAINST TORT. 421 
 
 X 
 
 respect, however, to waste of this latter kind, there is a 
 special exception, in favor of a tenant who has put up 
 
 Prop. 23, note ; Hill on Trustees 590, 4th Am. ed. ; Drown v. Smith, 52 
 Maine 143; Keeler r. Eastman, 11 Verm. 293. "Where a tenant for life 
 cuts down more timber than is necessary for the enjoyment of his estate, 
 and has injured the remainder, he is guilty of waste, and will be restrained 
 from a continuance. See Johnson c. Johnson, 2 Hill Ch. 277 ; Livingston 
 t\ Reynolds, 26 Wend. 115 ; Smith v. Poyas, 2 Dessaus. 65. Not so, if it 
 does not produce a lasting injury to the inheritance: Shine v, Wilcox, 1 
 Dev. & Batt. Eq. 631. Or if the clearing is not unreasonable, according to 
 the usage of the country : Crawley v. Timberlake, 2 Ired. Eq. 460. And, 
 although it amounts to a considerable change of woodland into arable : 
 Alexander r. Fisher, 7 Ala. 514. Firewood for the houses of the tenant 
 and servants may be taken : Gardiner v. Dering, I Paige 573 ; and see 
 McCullough r. Irvine, 13 Penn. St. 438 ; Morehouse v. Cotheal, 2 Zabris- 
 kie 521. 
 
 Where a farm is occupied and used for mining purposes, any proper use 
 of it in mining operations is not waste : Capner v. Fleinington Mining Co., 
 2 Green Ch. 467 ; Findlay . Smith, 6 Munf. 134 ; Crouch v. Puryear, 1 
 Rand. 258. Working a gold mine so as to produce irreparable 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 premises for the manufacture 
 of bricks, and such acts are waste : Livingston v. Reynolds, 2 Hill 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 Parsons's Sel. Eq. Cas. 304. See Denny v. Branson, 29 
 Penn. St. 382. 
 
 An injunction will be granted to prevent the lessee from making material 
 alterations in a dwelling-house, by changing it into a warehouse or store, 
 which would produce permanent injury to the building: Douglass v. Wig- 
 gins, 1 Johns. Ch. 435 ; or which he is bound not to make by covenant 
 running with the premises, or by agreement of which he has notice : Parker 
 r. Nightingale, 6 Allen 344; Piggott v. Stratton, 1 De G., F. & J. 33. See 
 McCullough 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, leav- 
 ing 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 . 
 Pitts, 3 Paige Ch. 259. 
 
 An injunction may be granted, not only against a tenant who commits
 
 422 ADAMS'S DOCTRINE OF EQUITY. 
 
 ornamental fixtures, or erections for the purposes of his 
 trade, (t)* 
 
 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 abol- 
 ished action of waste. There are, however, no means at 
 law of stopping the waste itself whilst the tenancy con- 
 tinues ; and for that purpose, if the reversioner's title be 
 admitted or proved at law, the prohibitive jurisdiction of 
 equity has been always exercised. 2 
 
 (i) 2 Steph. Bl. 261; 3 Id. 593 ; 1 Cruise, tit. iii., c. 2. 
 
 waste, but also against one who colludes with him : Rodgers v. Rodgers r 
 11 Barb. S. C. 595 ; see Earl Talbot .. Scott, 27 L. J. Ch. 273 ; 4 K. & J. 
 96. 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. 
 
 1 In a case of equitable waste, the court may, in addition to injunction, 
 direct an account,, and satisfaction: Rodgers v. Rodgers, 11 Barb. S. C. 
 395. 
 
 2 In order to the injunction, there must be no dispute as to the title. 
 See Zinc Co. v. Franklenite Co., 2 Beas. 350; Bogey v. Shute, 4 Jones Eq. 
 174. In Nevitt v. Gillespie, 1 How. (Miss.) 108, it was held that an in- 
 junction should never be granted to stay waste, where it appears that the 
 defendant to the bill is in possession, claiming and holding adversely. 
 See also Storm v. Mann, 4 Johns. Ch. 21 ; and Davenport v. Davenport, 7 
 Hare 217; United States v. Parrott, 1 McAll. Ch. 271. But pending an 
 action to try the title to land, an, injunction will sometimes be granted to 
 restrain the defendant from waste, especially where it appears that he will 
 not be able to respond in damages, in case of a recovery by the plaintiff: 
 Kinsler ^/Clarke, 2 Hill Ch. 617 ; Shubrick . Guerard, 2 Dessaus. 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. Ch. 122 ; 
 Camp v. Bates, 11 Conn. 51. In Earl Talbot v. Hope Scott, 4 K. & J. 96, 
 there will be found a full discussion of the English cases on this subject. 
 The court will not appoint a receiver of the rents, when a plaintiff claims 
 only on a legal title which is denied by a defendant in possession ; nor, as 
 a general rule will waste, under such circumstances, be restrained, unless
 
 OF INJUNCTION AGAINST TORT. 423 
 
 In addition to waste, strictly so called, an<J cognisable 
 as such in the Courts of law, there is also a kind of waste 
 .livable 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. 
 
 AVhere an estate for life is comprised among the lim- 
 itations of a settlement it is not unusual to make it " un- 
 impeachable of waste," and the object of this is that the 
 owner may be enabled to cut timber, open mines, and 
 avail himself of other modes of profit which are derived 
 out *of the corpus of the estate, and not from the r#9ng-i 
 annual produce, and are therefore, in law, con- 
 it is of a very malicious and destructive character. See the notes to 
 Garth v. Cotton, 1 Lead. Gas. Eq. 567. 
 
 The injunction will not be granted, where there is an adequate remedy 
 at law: Cutting v. Carter, 4 Hen. & Munf. 424; Poindexter 0. Henderson, 
 Walker 176. Yet in some cases it may be granted, notwithstanding a 
 statute giving a remedy at law : Harris v. Thomas, 1 Hen. & Munf. 18. 
 See, however, Brown's Appeal, 66 Penn. St. 155. 
 
 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 r. Chilson, 7 Mete. 398 ; Poindexter v. Henderson, supra : Spooner 
 9. McConnell, 1 McLean 338; Works v. Junct. R. R., 5 Id. 425 ; Clark's 
 Appeal, 62 Penn. St. 447. 
 
 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 future waste: Watson v. Hunter, 5 Johns. Ch. 169. Yet a threat to 
 
 commit waste is sufficient : London 0. Warfield, 5 J. J. Marsh. 196 ; Liv- 
 
 11 0. Reynolds, 26 Wend. 115, 123. 
 
 The appropriate remedy for a mortgagee against a mortgagor in posses- 
 sion, who is impairing the security by committing waste, is by bill in 
 Chancery for an injunction: Cooper 0. Davis, 15 Conn. 556; Brady 0, 
 Waldron, 2 Johns. Ch. 148 ; Salmon 0. Clagett, 3 Bland 125 ; Capner 0. 
 Flemington Mining Co., 2 Green Ch. 467. See on the general subject, 
 Sarles c. Sarles, 3 Sandf. Ch. 601 : Brashear 0. Macey, 3 J. J. Marsh. 93 ; 
 Herr v. Bierbower, 3 Md. Ch. 456 ; Carlisle 0. Stephenson, Id. 499 : Bur- 
 den v. Stein, 27 Ala. 104 ; Bunker 0. Locke, 15 Wis. 635 ; Nelson v. Pine- 
 gar, 30 111. 481.
 
 424 ADAMS'S DOCTRINE OF EQUITY. 
 
 sidered waste. So long as he is bond 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 bond fide, but is 
 maliciously attempting to destroy the property, his con- 
 duct is a fraud on the power, and will be restrained by 
 injunction. (Jc) 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 clausum fregit, to recover satisfaction 
 in damages for the wrong. 
 
 The equitable jurisdiction over this class of injuries, 
 where the damage is by a mere wrongdoer 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 proceeded to get more 
 coal out of the adjoining parcel, which belonged to a dif- 
 ferent 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 
 
 (k) Vane v. Barnard, 2 Vern. 738. 
 
 (I) Marquis of Downshire v. Sandys, 6 Ves. 107; Day v. Merry 16 Id. 
 375 ; Wellesley v. Wellesley, 6 Sim. 497 ; Brydges v. Stephens, 6 Mad. 
 279 ; Leeds v. Amherst, 2 Ph. 117 ; [Clement v. Wheeler, 5 Foster 361.]
 
 OF INJUNCTION AGAINST TORT. 425 
 
 Lord Thurlow had afterwards changed his mind ; and it 
 is now settled that an injunction will lie for protection of 
 a title, admitted or proved at law, whenever the act com- 
 plained of is not a mere ouster or temporary trespass, 
 but is attended *with permanent results, destroy- r*oi n"| 
 ing or materially altering the estate ; as, for ex- 
 ample, if a man be pulling down his neighbor's house, fell- 
 ing his timber, working his quarries, or the like. 1 If it 
 
 1 See Davis v. Reed, 14 Md. 152 ; Merced Mining Co. v. Fremont, 7 Cal. 
 321. There must be something particular in the case, so as to bring the 
 injunction under the head of quieting possession, or preventing irreparable 
 injury : Livingston v. Livingston, 6 Johns. Ch.497. The injury threatened 
 or begun must not be susceptible of compensation in damages at law : 
 Smith v. Pettingill, 15 Verm. 82 ; Stevens v. Beekinan, 1 Johns. Ch. 318 ; 
 Hart v. The Mayor of Albany, 9 Wend. 571 ; Jerome v. Ross, 7 Johns. Ch. 
 315 ; Scudder v. The Trenton Delaware Falls Co., Saxton 694 ; Bethunev. 
 Wilkins, 8 Ga. 118 ; George's Creek Coal Co. c. Detmold, 1 Md. Ch. 371 ; 
 Catching v. Terrell, 10 Ga. 576 ; Justices of Pike Co. v. Griffin & West 
 Point Plank Road Co., 11 Id. 246 ; Shipley v. Ritter, 7 Md. 408 ; Mulva- 
 ney v. Kennedy, 2> Penn. St. 44; Cherry i?. Stem, 11 Md. 1 ; Earl Talbot 
 v. Scott, 4 K. & J. 96 ; De Veney v. Gallagher, 20 N. J. Eq. 33. That the 
 trespasser is insolvent is not by itself sufficient : Turnpike, &c., v. Burnet, 
 2 Carter 536. See, however, Hawley v. Clowes, 2 Johns. Ch. 122 ; Hart v. 
 Mayor of Albany, 3 Paige 214 ; Winnipiseogee Lake Co. v. Worster, 9 
 Foster 449 ; James v. Dixon, 20 Mo. 79. The facts which show the irre- 
 parable nature of the injury must be set out in the bill, a mere general 
 averment is not enough : Chesapeake & Ohio Co. v. Young, 3 Md. 480. 
 Where the alleged trespass was committed more than a year before the ap- 
 plication 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, Duval v . Waters, 1 Bland 569 ; 
 Amelung v. Seekamp, 9 Gill & J. 468. 
 
 Equity will not restrain, by injunction, the working of a mine, or other 
 trespass, until the title, if disputed, has been setiled at law, except in ex- 
 treme cases : Irvin v. Davidson, 3 Ired. Eq. 311 ; Lining v. Geddes, 1 Mc- 
 Cord Ch. 304 ; Powers v. Heery. Charl. R. M. 523 ; West v. Walker, 2 
 Green Ch. 279. See Elliott v. North Eastern R. R. Co., 10 H. L. Gas. 
 333. 
 
 So on a question between two bodies, each claiming to be the trustees of 
 a religious society, and a refusal by one to permit the other to use the bury-
 
 426 ADAMS'S DOCTRINE OF EQUITY. 
 
 be a mere ouster or temporary trespass, the recovery of 
 the land by an action of ejectment, or of pecuniary dam- 
 ages by an action of trespass, are sufficient remedies, and 
 an injunction will^not lie.(m) 1 
 
 Nuisances ar.e of two kinds; Public and Private. A 
 public nuisance consists in the doing anything to the an- 
 noyance of all the King's subjects, e. g., the obstructing a 
 highway or public river, or the carrying on of offensive or. 
 dangerous trades, or the neglecting to do anything which 
 the common good requires, e. g., the omission to repair a 
 highway or public bridge. A private nuisance is an act 
 done unaccompanied by an act of trespass, which causes 
 a substantial prejudice of the hereditaments, corporeal or 
 incorporeal, of another; e. (/., diverting a watercourse, so 
 as to interrupt the right of another person, that it should 
 run undisturbed to his meadow or mill ; obstructing an- 
 cient windows, so that the owner cannot enjoy the light 
 so freely as before ; or disturbing a franchise, by setting 
 up, without license from the Crown, a fair, market, 
 or ferry, so near to a more ancient one, as to diminish 
 its custom. And a public nuisance may also be a private 
 one, if there be special damage to an individual; as 
 where, by reason of an obstruction to the highway, he 
 meets with an accident, or is compelled to travel by a 
 
 (m) Thomas v. Oakley, 18 Ves. 184 ; Goulson v. White, 3 Atk. 21 ; Ridg- 
 way v. Roberts, 4 Hare 106, 116. 
 
 ing ground, a forcible entry by the latter for that purpose on several occa- 
 sions, was held not to be ground for injunction : Miller v. English, 2 Ilalst. 
 Ch. 304. 
 
 1 See a full discussion of this subject in Earl Talbot v. Scott, 27 L. J. 
 Ch. 273 ; 4 K. & J. 96. 
 
 An injunction may be granted in favor of a married woman to restrain 
 a party from cutting down trees under an authority from her husband as 
 trustee of her separate estate : Thomas v. James, 32 Ala. 726 ; and see 
 Smith v. The Bank, 4 Jon. Eq. 303.
 
 OF INJUNCTION AGAINST TORT. 427 
 
 longer or more difficult way; or where an offensive or 
 dangerous trade is carried on or so near his premises as 
 to do them special prejudice, (n) 1 
 
 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 bv his own act, so as he commit no 
 
 / 
 
 riot in doing it, nor occasion, in the ease of *a 
 private nuisance, any unnecessary damage, (o) 
 The remedies, however, at law can at the utmost only 
 abate or afford compensation for, an existing nuisance, 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 compensated by 
 damages, or will occasion a constantly recurring griev- 
 ance^/?) 2 
 
 (n) 2 Steph. Bl. 10-16; 3 Id. 499-502; 4 Id. 295. [See Hepburn v. 
 Lordan, 2 Hein. & M. 345.] 
 ' (o) 3 Steph. Bl. 361, 503. 
 
 (p) Mitf. 144: Attorney-General v. Nichol, 16 Ves. 338; Attorney- 
 General v. Cleaver, 18 Id. 211 : Attorney-General v. Forbes, 2 M. & C. 123 ; 
 Crowder r. Tipkler, 19 Ves. 617 ; Earl of Ripon 0. Hobart, 3 M. & K. 169 ; 
 Hudson v. Muddison, 12 Sim. 416 ; Blakemore v. Glamorgan Canal, 1 M. 
 & K. 154, 181. 
 
 1 The student will find an excellent summary of the rules regulating the 
 relief afforded by equity in cases of private nuisances, in the opinion of 
 Mr. Justice Swayne in Parker v. Winnipiseogee Lake Cotton & Woollen 
 Co., 2 Black 545. The term "public nuisance" applies only to something 
 occasioned by acts done in violation of law : Hinchman v. Patterson, &c., 
 R. R., 2 Green (X. J.) 75. A work which is authorized by law cannot be 
 a nuisance : Ibid. 
 
 2 In England by stat. 21 & 22 Viet. c. 27, damages may be assessed in 
 cases of nuisance in such manner as the court may think proper. The
 
 428 ADAMS'S DOCTRINE OF EQUITY. 
 
 Injunctions for the restraint of trespass and nuisance 
 are often issued against railway companies, and other 
 
 right of the complainant ought generally to be admitted or established at 
 law, before the granting of an injunction: White v. Booth, 7 Verm. 131 ; 
 Shields v. Arndt, 3 Green Ch. 234 ; Caldwell v. Knott, 10 Yerg. 209 ; Hart 
 v. Mayor of Albany, 3 Paige 213 ; Reid v. Gifford, 6 Johns. Ch. 19 ; Bid- 
 die v. Ash, 2 Ashmead 211 ; Porter v. Witham, 17 Maine 292 ; Arnold v. 
 Klepper, 24 Mo. 273 ; Coe v. The Winnipiseogee Manuf. Co., 37 N. H. 
 254 ; Rhea v. Forsyth, 37 Penn. St. 507 ; Frizzle v. Patrick, 6 Jones Eq. 
 (N. C.) 354 ; Eastman v. Amoskeag Co., 47 N. H. 71. But when the right 
 has once been established, an alteration in the nuisance complained of 
 will not render a fresh action necessary. Chancery can judge whether 
 the nuisance has been increased or diminished : Gas Company v. Broad- 
 bent, 7 H. L. Gas. 600. And in Holsman v. Boiling Spring Co., 1 McCart. 
 335, a perpetual injunction was granted without any trial at law. Yet he 
 will not be first required to establish his right at law, unless it is doubtful 
 and in dispute : White v. Forbes, W,alk. Ch. 1 12 ; Duncan . Hayes, 22 N. J. 
 Eq. 25. In the case of great injury to a prescriptive right, the injunction 
 may be granted without first sending the plaintiif to law to establish his 
 title : Gardner v. Newburgh, 2 Johns. Ch. 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 how small an extent, if the legal title has been clearly established : 
 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 gro.wth 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, ~ 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
 
 OF INJUNCTION AGAINST TORT. 429 
 
 bodies of a similar nature, where the act complained of is 
 done in alleged pursuance of a Parliamentary power. In 
 
 that there is a possibility that the injury anticipated may not result from 
 the erection complained of: Mohawk Bridge Co. v. Utica and Schenectady 
 Railroad Co., 6 Paige Ch. 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 . 
 Melmoth, 1 Freem. Ch. 505 ; Ellison v. The Commissioners, 5 Jones Eq. 
 57 ; Ross v. Butler, 4 Green (N. J.) 294. 
 
 To authorize the Court's interference by injunction, there should appear 
 imminent danger of great and irreparable damage, and not of that for 
 which an action at law would furnish full indemnity : Wingfield v. Cren- 
 shaw, 4 Hen. & Munf. 474; City of Rochester v. Curtiss, 1 Clarke 
 336 ; Bradsher v. Lea, 3 Ired. Eq. 301 ; Spooner v. McConnell, 1 McLean 
 337 ; Webb v. Portland Manuf. Co., 3 Sumner 189 ; Croton Turnpike v. 
 Ryder, 1 Johns. Ch. 611 ; Wall v. Cloud, 3 Humph. 181 ; Vaughn v. Law, 
 
 1 Id. 123 ; Bemis v. Upham, 13 Pick. 169 ; Vanwinkle v. Curtis, 2 Green 
 Ch~ 422 ; Smith 0. Cummings, 2 Pars. Eq. 92 ; Wallace v. McVey, 6 Ind. 
 540 ; Clark v. White, 2 Swan 540 ; Webber v. Gage, 39 N. H. 186 ; The- 
 baut v. Canova, 11 Florida 143; Richards's App., 57 Penn. St. 105. 
 
 An injunction may be granted to restrain a public nuisance at the suit 
 of a private person, who suffers a special injury thereby : Corning u. Low- 
 erre, 6 Johns. Ch. 439 ; Milhau v. Sharp, 27 N. Y. 611. See as to this 
 point, Rosser v. Randolph, 7 Porter 238 ; Mayor of Georgetown v. Alex- 
 andria Canal Co., 12 Peters 91 ; Bigelow v. Hartford Bridge Co., 14 Conn. 
 565 ; Attorney-General v. Utica Ins. Co., 2 Johns. Ch. 379, 380 ; Delaware 
 and Maryland R. R. Co. v. Stump, 8 Gill & J. 479 ; Biddle v. Ash, 2 Ash- 
 mead 211 ; Rowe v. Granite Bridge Co., 21 Pick. 344 ; Soltau v. De Held, 
 
 2 Sim. N. S. 133 ; Smith v. Lockwood, 13 Barb. S. C. 209 ; Peck v. Elder, 
 
 3 Sandf. S. C. 126 ; Frink v. Lawrence, 20 Conn. 117 ; Hartshorn v. South 
 Reading, 3 Allen 501 ; Allen v. The Board of Freeholders, 2 Beas. 74 ; 
 Zabriskie v. The Jersey City R. R. Co., 2 Id. 314; Att.-Gen. v. Sheffield 
 Gas Consumers Co., 3 De G., M. & G. 304; Smith v. Bangs, 15 111. 399 ; 
 Hamilton v f Whetridge, 11 Md. 128 ; Mississippi & Missouri R. R. Co. . 
 Ward, 2 Black 485. See Roosevelt v. Draper, 23 N. Y. 323 ; Buck Mt. Co. 
 v. Lehigh Co., 50 Penn. St. 99 ; People v. Third Avenue R. R. Co., 45 
 Barb. (N. Y.) 63 ; Columbus v. Jaques, 30 Ga. 506 ; City of Phila. . 
 Collins, 68 Penn. St. 106. 
 
 In Catlin v. Valentine, 9 Paige 575, and Brady v. Weeks, 3 Barb. S. C. 
 157, it was held that to constitute a nuisance, it is not necessary that a 
 trade or business complained of, should endanger the health of the neigh- 
 borhood. It is sufficient if it produces that which is offensive to the senses,
 
 430 ADAMS'S DOCTRINE OF EQUITY. 
 
 these cases, if the company are acting loud fide within 
 their authority, there is no equity to interfere, although 
 the Court may think that the power was unadvisedly con- 
 ferred, or that the company are not exercising a wise 
 discretion. If, however, their conduct is not bond 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.^) And if they are acting beyond their authority, 
 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 at- 
 tempting to do some other thing, or to do it on some other 
 
 (q) Webb t>. Manchester & Leeds Railway, 4 M. & C. 116 ; [see Comin. 
 v. Pittsburgh & Conn. R. R., 24 Penn. St. 139.] 
 
 and which renders the enjoyment of life and property uncomfortable. 
 See also, Peck v. Elder, 3 Sandf. S. C. 126 ; Howard v. Lee, Id. 181 ; Smith 
 v. Cummings, 2 Pars. Eq. 92; Cleveland v. Citizens' Gas Light Co.. 20 N. 
 J. Eq. 201. The rule on this subject was laid down with great clearness 
 in Walker v. Selfe, 4 De G. & Sm. 315 ; and see Wolcott c. Melick, 3 Stock. 
 204 ; Crump v. Lambert, L. R. 3 Eq. 409. 
 
 See also generally as to injunction to restrain nuisance, Soltau v. De 
 Held, 2 Sim. N. S. 133 ; Bostock . North Stafford R. R. Co., 5 De G. & Sin. 
 584; Auburn Co. v. Douglass, 12 Barb. 553 ; Harrell v. Ellsworth, 17 Ala. 
 576 ; Gilbert v. Mickle, 4 Sandf. Ch. 357 ; Cunningham v. The Rome R. 
 R. Co., 27 Ga. 499 ; Wood v. Sutcliffe, 2 Sim. (N. S.) 163 ; Hole v. Barlow, 
 4 C. B. N. S. (93 E. C. L. R.) 334 ; St. Helen's Smelting Co. . Tipping, 
 11 II. L. Cas. 642 ; Crossley v. Lightowler, L. R. 2 Ch. Ap. 478 ; Att.-Gen. 
 0. Bradford Canal, L. R. 2 Eq. 71 ; Robson v. Whittingham, L. R. 1 Ch. 
 Ap. 442. 
 
 A state may obtain an injunction in the Supreme Court of the United 
 States to restrain a company incorporated by another state from bridging 
 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 ; see Mississippi & Missouri R. R. Co. v. 
 Ward, 2 Black 485. 
 
 A corporation owning a toll bridge may maintain a bill in equity as for 
 a nuisance, to restrain a city from unlawfully laying it out as a highway : 
 Central Bridge . Lowell, 4 Gray (Mass.) 474. See also Green v. Oakes, 
 17 111. 249 ; Walker v. Shepardson, 2 Wis. 384.
 
 OF INJUNCTION AGAINST TORT. 431 
 
 terms, or in some other manner. Such, for instance, 
 would be the case, if their authority were to cross a man's 
 land coming to it in a particular direction, and they 
 claimed to alter the direction, and, nevertheless to take 
 the land. And perhaps the same result would follow, if 
 they were to make an important alteration in the termini 
 of their line, or if the sum which *they had power 
 t. raise were palpably insufficient to complete 
 their works ; for, in both these cases, they would not be 
 using their powers for the purpose 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, which without such authority they would 
 be incompetent to do. So long as they are acting within 
 their prescribed limits, the Court of Chancery has no con- 
 trol ; but if they exceed those limits, if they are assuming 
 to do that which the Legislature has not said they may 
 do, then, in so far as the excess is concerned, they have 
 no 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 invention. (tf) 1 
 
 (r} Agar v. Regent's Canal Company, Coop. 77 ; Salmon v. Randall, 3 
 M. & C. 439; Blakemore v. Glamorgan Canal, 1 M. & K. 154; Lee v. 
 Milner, 2 Y. & C. 611. 
 
 (s) Attorney -General v. Forkes, 2 M. & C. 123 ; Frevin r. Lewis, 4 M. i\r 
 C. 249: Birley v. Chorlton, 3 Beav. 499; Dawson't. Paver, 5 Hare 415: 
 [Winch v. Birkenhead, &c., R. R. Co., 16 Jur. 1035 ; Beman r. Rufford, 1 
 Sim. X. S. 550.] 
 
 (t) 2 Steph. Bl. 86 ; 5 Jarrn. Byth., tit. Patent; Godson on Patent and 
 Copyright, bk. ii. 
 
 1 The American cases and statutes on this subject will be found collected 
 in Curtis on Patents. 
 
 The patent, of itself, and in the absence of treaty stipulation, creates no
 
 432 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 limited, are regu- 
 lated by statute ;(w) and the qualities essential to sustain 
 a patent are foreign to this Treatise. But the patent 
 right of an inventor is personal property, and assignable 
 by writing under hand and seal; and if it be infringed, 
 the inventor or his alienee has a remedy at law by an 
 action for damages. And iif consideration of the ineffi- 
 ciency of that remedy, he may also, if the validity of his 
 patent and the fact of infringement are admitted or estab- 
 lished at law, have a remedy in equity by injunction and 
 account. The right originates in the character of the 
 f*91 31 P a ^ en ^ as private ""^property, and not in the mere 
 exclusive privilege. And therefore, a patent to 
 keep a theatre, which is a mere privilege granted to the 
 party, will give no right to enjoin other parties, who are 
 infringing the law by keeping theatres without license, (u) 
 
 The validity of the patent itself, and the fact of infringe- 
 ment, are matters which, if doubtful, must be determined 
 at law. 
 
 Copyright is the exclusive liberty conferred, either 
 by common law or by statute, on an author or his 
 
 (u) 21 Ja. 1, c. 3, s. 1 ; 5 & 6 Win. 4, c. 83 ; 2 & 3 Viet. c. 67. 
 (v) Calcraft v. West, 2 Jones & Lat. 128. 
 
 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. The same point arose in Brown v. 
 Duchosne, 2 Curtis C. C. 371, affirmed 19 Howard 183, and received a con- 
 trary decision under the Patent Laws of the United States.
 
 OF INJUNCTION AGAINST TORT. 433 
 
 alienee, of printing or otherwise multiplying copies of his 
 work(w) 1 
 
 The property of an author in his work before publica- 
 tion is absolute and perpetual ;(#) 2 nor is it lost by send- 
 ing the manuscript as a letter to a correspondent; (y] z 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 senti- 
 ments and language; although a pupil may be restrained, 
 on the basis of an implied contract, from publishing it for 
 pro fit. (2) 
 
 Lectures are now protected by 5 & 6 Wm. 4, c. 65, 
 giving to the author and his alienee the sole right of first 
 printing and publishing, and, after publication, the ordi- 
 nary term of copyright. But this statute gives no exclu- 
 sive right of oral delivery; it requires that notice of the 
 
 (w) 2 Steph. Bl. 94; 5 Jarra.Byth., tit. Copyright; Godson on Patent 
 and Copywright, bk. iii. 
 
 (x) Miller v. Taylor, 4 Burr. 2303 ; Donaldson v. Becket, 2 B. P. C. 129; 
 Tonson v. Walker, 3 Sw. 672, 680. 
 
 (y) Gee v. Pritchard, 2 Sw. 402 ; Palin v. Gathercole, 1 Coll. 565. 
 
 (z) Abernethy v. Ilutchinson, 3 Law J. 0. S. Ch. 209; Miller v. Tay- 
 lor, 4 Burr. 2303 ; Donaldson v. Beckett, 2 B. P. C. 129. 
 
 1 See Curtis on Copywright. 
 
 The power given to Congress to pass copyright laws extends only to such 
 as " promote the progress of science and useful arts :" Martinette v. Ma- 
 guire, 1 Abb. (U. S.) 356. 
 
 8 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 publi- 
 cation, was restrained from publishing a descriptive catalogue of the etch- 
 ings and compelled to destroy certain impressions which he had taken for 
 himself. 
 
 3 See Woolsey v. Judd, 4 Duer 379 ; Wetmore v. Scovill, 3 Edw. Ch 
 515 ; Hoyt v. Mackenzie, 3 Barb. Ch. 320 ; Bartlettu. Crittenden, 5 McLean 
 32. 
 
 28
 
 434 ADAMS'S DOCTRINE OF EQUITY. 
 
 intended lectures shall have been given to two justices 
 before delivery; it does not extend to lectures delivered 
 in a university, public school, or college, or under any 
 gift, endowment, or foundation; and it contains a saving 
 of the common law in respect to all lectures which it does 
 not include. 
 
 f*2141 *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, (b) Protection is not 
 only afforded to printed books, but also to engravings, (c) 
 sculptures, (d] dramatic compositions, (e) and registered 
 designs, (/) and also under certain limitations, to works 
 published abroad, (g) 
 
 In addition to the copyright conferred by statute, there 
 is also a prerogative copyright in the Crown of printing 
 at the royal press all Acts of Parliament, Proclamations, 
 and Orders in Council, and Liturgies, and Service-books 
 of the Church, and the authorized translation of the Bible. 
 The same privileges extend to the grantees of the Crown, 
 viz., to the Queen's printer, and to the Universities of 
 Oxford and Cambridge. A similar privilege of printing 
 almanacs was formerly claimed, but was adjudged to be 
 void. The Universities of Oxford and Cambridge, and 
 the Colleges of Eton, Westminster, and Winchester also 
 enjoy, by Act of Parliament, a perpetual copyright in 
 all books given or bequeathed to them, so long as such 
 
 (a) 54 Ga. 3, c. 156. 
 
 (b) 5 & 6 Viet. c. 45. 
 
 (c) 8 Geo. 2, c. 13 ; 7 Geo. 3, c. 38, 57 ; 6 & 7 Wm. 4, c. 59. 
 
 (d) 38 Geo. 3, c. 71 ; 54 Geo. 3, c. 56. 
 
 (e) 3 & 4 Wm. 4, c. 15 ; 5 & 6 Viet, c. 45. 
 (/) A & 6 Viet. c. 100 ; 6 & 7 Viet. c. 65. 
 (g) 7 & 8 Viet. c. 12.
 
 OF INJUNCTION AGAINST TORT. 435 
 
 books shall be published at their own presses and for 
 their own benefit, (h) 
 
 The question as to what will constitute an infringement 
 of copyright is sometimes attended with considerable 
 doubt. It is declare^ by the late statute that it is 
 equally piracy, either to print the copyright work within 
 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 imported, 
 or to cause any such ^printing, importation, sale, p^i i 
 publication, or exposure for sale or hire.(^) 1 
 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 doctrine on 
 these points appears to be : 1. That in regard to original 
 works, it is no piracy to extract passages for the purpose 
 of bond fide criticism or quotation, or for that of com- 
 bining them with new matter so as to constitute a new 
 original work, or even to make a fair abridgment of the 
 work himself. But it is otherwise if the criticism, &c., 
 be merely colorable, (k) 2. That in regard to compila- 
 tions of pre-existing matter, such as maps and road- 
 books, the true subject of copyright is the selection and 
 
 (A) 2 Steph. Bl. p. 98. 
 
 (i) 5 & 6 Viet. c. 45, ss. 15 and 17. 
 
 (k) Campbell c. Scott, 11 Sim. 31 ; Bell v. Whitehead, 8 L. J. Ch. 141 ; 
 Wilkins v. Aikin, 17 Ves. 427 ; Saunders v. Smith, 3 Myl. & Cr- 711 ; 
 Bramwell . Halcomb, Id. 737; D'Almaine v. Boosey, 1 Y. & C. 288. 
 
 1 After much discussion in England, it has been recently held in the 
 House of Lords, that a foreigner, not residing there, can have no copyright 
 under the statutes, nor does his English assignee before publication stand 
 in any better position : Jefferyes v. Purday, L. J. Exch. 350.
 
 436 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 compari- 
 son of the two works, he appears to have done so, his 
 own work will be declared a piracy.^) 1 
 
 The copyright of an author, like the patent right of an 
 inventor, is personal property, and transferable by assign- 
 ment. 2 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 w r riting, though not necessarily 
 under seal.(w) 8 
 
 (/) Longman W.Winchester, 16 Yes. 269; Lewis v. Fullarton, 2 Beav. 6. 
 (TO) Power v. Walker, 3 M. & S. 7 ; Rundell v. Murray, Jac. 311, 315 ; 
 5 & 6 Viet. c. 45, s.13. 
 
 1 A work in part a bonajide abridgment of another, and in part mere com- 
 pilation without original labor, may be restrained as to the latter : Story's 
 Ex'rs. v. Holcombe, 4 McLean 306. A translation is not a violation of a 
 copyright : Stowe v. Thomas, 2 Am. Law Reg. 210 ; 2 Wall. Jr. 547. See 
 Kelly v. Morris, L. R. 1 Eq. 697 ; Hotten v. Arthur, 1 Hem. & M. 603. It 
 is no infringement of a copyright to represent a play dramatized from a 
 novel written by another author, but it is an infringement to print and 
 publish a play so constructed : Tinsley v. Lacy, 1 Hem. & M. 747. See 
 also, Reade v* Lacy, 1 Johns. & Hem. 524. 
 
 2 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 r and the purchaser may be re- 
 strained by injunction from the multiplication of copies thereof: Stephens 
 v. Cady, 14- How. U.. S.. 528. 
 
 3 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 pro- 
 prietor : Sweet v. Benning, 16 Com. Bench 459. 
 
 So it was held to be piracy, for a proprietor of an analytical digest of
 
 OF INJUNCTION AGAINST TORT. 437 
 
 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, (n) He may [-#91 AT 
 also sue ki equity for an injunction and account 
 if the right and infringement are admitted or established 
 at law. It will be observed, that the jurisdiction to enjoin 
 in equity is expressly for the protection of copyright as 
 property, and not for the prevention of improper publi- 
 cations. 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 tendency, 
 the Court of Chancery will not interfere. (0) 
 
 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 
 
 (n) 5 & 6 Viet. c. 45, s. 23. 
 
 (o) Gee v. Pritchard, 2 Sw. 402 ; Du Bost v. Beresford, 2 Camp. N. P. 
 C. 511; Wright v. Tallis, 1 Man., Gr. & Sc. 893 ; 4 Law J. C. P. 283; 
 Southey c. Sherwood. 2 Meriv. 438 ; Lawrence v. Smith, Jac. 471. 
 
 equity, common law, and other cases, to copy verbatim the head notes of 
 ca^es from reports, the copyright of which was in the plaintiffs, without 
 their consent: Id.
 
 438 ADAMS'S DOCTRINE OF EQUITY. 
 
 to protect it by a patent, and thus to limit his enjoyment 
 of it within the statutory period, he has no exclusive 
 right to the invention ; and if another person can discover 
 the secret, there is no equity to restrain him from using 
 it. It must, however, be discovered by legitimate means; 
 and therefore if the party acquiring it has resorted to a 
 breach of trust or a fraud, he will be restrained from avail- 
 ing himself of what he has learnt. ( p] 
 f*21 71 *^> a g a i n > a person has adopted a particular 
 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. (^) 1 
 
 (p) Williams v. Williams, 3 Meriv. 157 ; Youatt . Winyard, 1 J. & W. 
 394 ; [Morrison w.Moat, 9 Hare 266 ; affirmed 16 Jur. 321 ; 21 L. J. Ch. 
 248.] 
 
 (q) Sykes v. Sykes, 3 B. & C. 541 ; Bloefield v. Payne, 4 B. & Ad. 410 ; 
 Crutwell v. Lye, 17 Ves. 336 ; Motley v. Downman, 3 M. & C. 1 ; Milling- 
 ton v. Fox, 3 M. & C. 338 ; Perry v. Truefitt, 6 Beav. 66 ; Croft v. Day, 7 
 Id. 84 ; -Spottiswoode v. Clark. 2 Ph. 154 ; Clark v. Freeman, 17 L. J. Ch. 
 142; 11 Beav. 112. 
 
 1 On the subject of injunction to resti'ain the use of trade-m.irks, the fol- 
 lowing recent decisions may be referred to : Coffeen v. Brunton, 4 McLean 
 516; Rogers . Nowill, 3 De G., M. & G. 614; 17 Jur. 109; Burgess v. 
 Burgess, 3 De G., M. & G. 896 ; 17 Jur. 292 ; Flavell v. Harrison, 10 Hare 
 467 ; 17 Jur. 368 ; Edleston v. Vick, 18 Id. 7 ; Holloway v. Holloway, 13 
 Beav. 209 ; Taylor v, Taylor, 2 Eq. 290 ; 23 L. J. Ch. 255 ; Woollam v.
 
 OF INJUNCTION AGAINST TORT. 439 
 
 Having now examined the chief objects of the injunc- 
 tive equity, we must, in conclusion, notice the chief inci- 
 dents 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 ex- 
 tends 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 
 
 Ratcliffe, 1 Hem. & M. 259 ; Batty c. Hill, Id. 264 ; Braham v. Bustard, 
 Id. 447 ; Farina v. Silverlock, 4 K. & J. 650 ; Welch v. Knott, Id. 747 ; 
 Edelsten r. Edelsten, 1 De G., J. & Sm. 185; Leather Cloth Co. v. The 
 American Leather Cloth Co., 11 H. L. Cas. 523; Board man r. Meriden 
 Brittania Co., 35 Conn. 40J ; McCartney v. Garnhart, 45 Mo. 593 ; Palmer 
 r. Harris. 60 Penn. St. 156 ; Filley v. Fassett, 44 Mo. 168 ; Rowley r. Hough- 
 ton, 2 Brewst. (Pa.) 303 ; Dixon Crucible Co. v. Guggenheim, Id. 321 ; 
 Bradley v. Norton, 33 Conn. 157 ; Smith . Woodruff, 48 Barb. (N. Y.) 
 438 ; Congress Spring Co. . High Rock Spring Co., 45 X. Y. 291 5 Canal 
 Co. . Clark, 13 Wall. (U. S.) 311 ; 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.) 379 ; 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. (X. Y.) 608 ; Sherwood 
 v. Andrews, 5 Am. Law Reg. (N. S.) 588; Ferguson v. Davol Mills, 2 
 Brewst. (Pa.) 314. 
 
 In case of patent medicines, &c., see Heath v. Weight, 3 Wall- Jr. 141 ; 
 but see Smith i?. Woodruff, supra.
 
 440 ADAMS'S DOCTRINE OF EQUITY. 
 
 for hearing it may be ready for immediate adjudication. 
 When the motion for an interlocutory injunction is made, 
 the Court, having regard to the extent of primd facie title 
 
 l~*91 81 snown ' the probability *of mischief to the pro- 
 perty, and the balance of inconvenience on either 
 side, will either grant the injunction, accompanied by a 
 provision for putting the legal right into an immediate 
 course of trial ; or will send the parties to law, directing 
 the defendant to keep an account; or will merely retain 
 the bill, with liberty for the plaintiff to proceed at law. (r) 
 Secondly, the equity extends to prohibit continuance, 
 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 injunction, 
 i. e., an injunction so framed that it restrains the defend- 
 ant from permitting his previous act to operate, and, there- 
 fore, virtually compels him to undo it. Injunctions of 
 this class haA^e 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 im- 
 properly built in an ornamental garden; and against per- 
 mitting a railway tunnel to continue, which had the effect 
 of completely destroying the road, (s) l 
 
 (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 Beav. 382 ; 4 M. & C. 
 433 ; Collard v. Allison, 4 M. & C. 487 ; Hilton v. Granville, Or. & P. 283 5 
 Harman v. Jones, Id. 299 ; Stevens v. Keating, 2 Ph. 333. 
 
 (s) Robinson v. Byron, 1 B. C. C. 558 ; Lane v . Newdigate, 10 Ves. 194 ; 
 Blakemore v. Glamorgan Canal, 1 M. & K. 154, 183 ; Rankin v. Huskisson, 
 4 Sim. 13 ; Spencer v. Birmingham Railway, 8 Id. 193, 198 ; 1 Railway Ca. 
 159 ; Attorney-General v. Manchester and Leeds Railway, Id. 436 ; Hooper 
 v. Brodrick, 11 Sim. 48 ; Earl of Mexborough v. Bower, 7 Beav. 127, 133; 
 Great North of England Junction Railway v. Clarence Railway, 1 Coll. 
 507. 
 
 1 But such an injunction is not granted, except in rare and peculiar
 
 OF INJUNCTION AGAINST TORT. 441 
 
 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 de- 
 rived a profit, which may or may not, according to circum- 
 stances, be coextensive with the plaintiff's loss. The strict 
 right of the plaintiff, so far as the past wrong is concerned, 
 is to *a recompense in damages for his own loss, r*cy\ Q-I 
 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 pur- 
 pose of the injunction, will prevent that circuity and ex- 
 pense; and although it cannot decree damages for the 
 plaintiff's loss, will substitute an account of the defend- 
 ant's profits, (f) The equity for the account is strictly an 
 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) 
 
 (t) Crossley v. Derby Gas Gompany, 3 Myl. & Cr. 428; Bacon v. Spot- 
 tiswoode, 1 Beav. 382, 385 ; Colburn v. Simms, 2 Hare 543, 560. 
 (u) Baily . Taylor, 1 R. & M. 73. 
 
 cases : Bradbury r. Manchester, &c., R. R. Co., 5 De G. & Sm. 624 ; "Wash- 
 ington University v. Green, 1 Md. Ch. 97. On final hearing, however, 
 the decree may, of course, require the abatement of a nuisance : Lamborn 
 r. The Covington Co., 2 Md. Ch. 409. In Durell v. Pritchard, 13 W. R. 
 981, the Master of the Rolls, relying on Deere . Guest, 1 Myl. & Cr. 516, 
 laid down the rule that a mandatory injunction would not be granted 
 where the act complained of was completed before the filing of the bill. 
 But this ruling was reversed by the Court of Appeals : L. R. 1 Ch. Ap. 
 249.
 
 
 [*220] *BOOK III. 
 
 OF THE JURISDICTION OF THE COURTS OF EQUITY IN CASES 
 IN WHICH THE COURTS OF 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. 1 
 
 1 In matters of account, Courts of equity possess a concurrent jurisdic- 
 tion in most, if not in all cases, with courts of law : see Mitchell v. Manu- 
 facturing Co., 2 Story 648 ; Post v. Kimberly, 9 Johns. 470 ; Jones v. 
 Bullock, 2 Dev. Ch. 368 ; Nelson v. Harris, 1 Yerg. 360 ; Bruce v. Burdet, 
 1 J. J. Marsh. 80 ; Wilson v. Mallett, 4 Sandf. S. C. 112 ; Seymour v. 
 Long Dock Co., 20 N. J. Eq. 396 ; in all cases in which an action of ac- 
 count 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 . Stout, 2 Leigh 6; Hay v. Marshall, 3 Humph. 623. Especi- 
 ally where equity has acquired cognisance of a suit for the purpose of dis-
 
 OF ACCOTMT. 443 
 
 One important instance of the jurisdiction over accounts 
 occurs in the case of trustee and cestui que trust, where 
 the cestui que trust demands an account of moneys re- 
 ceived 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 similar 
 character, who is bound by his office 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- 
 selves, and a suit *in equity is not required. If 
 it is neglected, he can recover damages at law for 
 the neglect, (l>) and will also have an equity, arising out 
 
 (a) Supra, Trusts. (6) Smith Merc. Law 96. 
 
 covery : Handley v. Fitzhugh, 1 A. K. Marshall 24 ; see, also, Pearl v. 
 Nashville, 10 Yerg. 179. And a bill for discovery and account will some- 
 times 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, accident, or mistake 
 is connected with the subject: McLaren v. Steapp, 1 Kelly 376; Cum- 
 mins v. White, 4 Blackf. 356. And between partners and the assignees 
 of their copartners : Pendleton v. Wainbersie, 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 princi- 
 pal ; see, in addition, on this subject, Randolph v. Kinney, 3 Rand. 394 ; 
 Ship v. Jameson, 6 Litt. 190 ; Sturtevant v. Goode, 5 Leigh 83 ; McKim 
 v. Odom, 3 Fail-field 94 ; Reybold v. Dodd, 1 Harring. 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 in such that a court of law cannot 
 deal with it : Southeast R. 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.
 
 444 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 ; (d) but in the additional in- 
 gredient that such want has been caused by the defend- 
 ant'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 in- 
 formation, and, therefore, no equity on the ground of its 
 absence, to withdraw his rights from the Court of ordi- 
 nary 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 prin- 
 cipal's, to keep the account. 1 But this rule is subject 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 ac- 
 counts with the tenants, so that it would be impossible to 
 do him justice without an account in equity. (e)~ 
 
 (c) Mackenzie v. Johnston, 4 Mad. 373 ; Massey v. Banner, 4 Id. 413 ; 
 Anon. 2 Hare 289, n. ; Bowles . Orr, 1 Y. & C. 464. 
 
 (d) Supra, Discovery. 
 
 () Dinwiddie v. Bailey, 6 Ves. 136 ; Allison . Herring, 9 Sim. 583. 
 
 1 An account will lie on behalf of an agent against his principal who 
 has received certain sums upon which the former was entitled to a com- 
 mission : Smith v. Leveaux, 1 Hem. & M. 123. 
 
 2 An agent or factor may file a bill against his principal for an account : 
 Ludlow v. Simond, 2 C. C. E. 1, 39, 53 ; Kerr v. Steamboat Co., 1 Cheves, 
 2d part, 189. See Wilson v. Mallet, 4 Sandf. S. C. 112. But in general, 
 a bill will not lie by a factor against his principal, for discovery and ac- 
 count, merely in aid of a suit at law ; nor will a bill for relief, where the
 
 OF ACCOUNT. 445 
 
 f 
 
 In taking the account against an agent, he will be 
 charged with the moneys of his principal which he has 
 actually received, and, if a special case of negligence be 
 
 bill is dependent on the right to discovery : Wilson v. Mallett, 4 Sandf. S. 
 C. 112. See Dunning v. Stearns, 9 Barb. S. C. 903. 
 
 In the recent case of Pennell v. Deffell, 4 De G., M. & G. 372, the fol- 
 lowing 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 
 constituted from the bank to him, belongs, so long as it remains due, 
 specifically 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 of 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 op- 
 posite 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 cus- 
 tomer's own moneys pro tanto, if they arise from moneys paid in on his 
 own private personal account. See also, Frith v. Cartland, 34 L. J. Ch. 
 301. 
 
 Where an agent is intrusted with money to be disbursed, his principal 
 may sustain a bill against him for an account of his agency, and in some 
 instances although no discovery is sought. See Kerr v. Steamboat Co., ut 
 supra : Hale v. Hale, 4 Humph. 183 ; Halstead v. Rabb, 8 Porter 63 ; Ma- 
 son f. Man, 3 Dessaus. 116. If an agent does not, within a reasonable time, 
 apply money to the purposes for which it is sent to him, he will be charge- 
 able with interest: Harrisson v. Long, 4 Dessaus. 110. See on the subject 
 of interest, Hill on Trustees, 4th Am. ed. 568, and notes. But an agent 
 having no authority to invest, is not liable for interest, until a demand 
 made by his principal : Rowland v. Martindale, Bailey Eq. 226 ; Lever v. 
 Lever, 2 Hill Ch. 158. So an agent will be charged with moneys which, 
 but for his default, he might have received : Short v. Skipwith, 1 Brock. 
 103 ; see also. Prentice v. Buxton, 3 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 belongs to himself; and so far as he is unable 
 to do this, it is treated as the property of his principal : Kelly v. Greenleaf, 
 3 Story 105, 106.
 
 446 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 
 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 property 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. (^7) 
 
 Another instance of the jurisdiction is in the case of 
 mutual accounts, where items exist on both sides, not 
 constituting mere matters of set off, but forming a con- 
 nected transaction, and requiring an account to ascertain 
 the balance, more complicated than can practically be 
 taken at law.(/j) The mere fact that such complicated 
 mutual accounts exist is a sufficient equity to sustain a 
 bill. But it is otherwise with respect to mere matters of 
 set-off; for right of set-off can be effectually tried at law, 
 and can only be transferred to Chancery by some special 
 equity. 1 
 
 (/) Pelham v. Hilder, 1 N. C. C. 3. 
 
 (g) Pearse v. Green, 1J. & W. 135 ; Lupton v. White, 15 Ves. 432, 441. 
 
 (h) Kennington v. Houghton, 2 N. C. C. 620 ; Ranger v. Great Western 
 Railway, 1 Railway Ca. 1 ; Taff Vale Company v. Nixon, 1 House of 
 Lords Reports 111. 
 
 ' In matters of account which are mutual and complicated, Courts of 
 equity have complete jurisdiction: Hay . Marshall, 3 Humph. 623 ; The 
 Governor v. McEwen, 5 Id. 241 ; Power v. Reeder, 9 Dana 9 : Hickman v.
 
 OF ACCOUNT. 447 
 
 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 mutual 1 deduction, so 
 that in any action brought for the larger debt, the resi- 
 due only after such deduction shall be recovered. At the 
 common law there was no such right j but if the party 
 
 Stout, 2 Leigh 6 ; Long v. Majestre, 1 John. Ch. 305 ; Hunter's Ex'rs. v. 
 Spotswood, 1 Wash. 146 ; Cummins v. White, 4 Blackf. 356 ; Dubourg de 
 St. Colombo's Heirs v. The United States, 7 Peters 625 ; Kirkman . Vanlier, 
 7 Ala. 217. So also in cases of insolvency: Blake v. Langdon, 19 Verm. 
 485 ; White v. Wiggins, 32 Ala, 424 ; though the rule on this subject is 
 not, perhaps, satisfactorily settled : see American note to Rose v. Hart, 2 
 Smith's Lead. Cas. 374 (6th Am. ed.), where the cases are discussed. 
 But to sustain a bill for an account, there must be mutual demands, not 
 merely payments by way of set-off, there must be a series of transactions 
 on one side, and of payments on the other. See Bowen v. Johnson, 12 Ga. 
 9 ; Porter v. Spencer, 2 John. Ch. 169 ; Pearl . Nashville, 10 Yerg. 179 ; 
 McLin t\ McXamara, 2 Dev. & Bat. Eq. 83 ; Wilson v. Mallett, 4 Sandf. 
 Ch. 112; Pointup v. Mitchell, 17 Ga. 558 ; Phillips v Phillips, 9 Hare 471 ; 
 Cullum v. Bloodgood, 15 Ala. 34 ; Padwick v. Hurst, 18 Jur. 763 ; 18 Beav. 
 575 ; see Burlingame v. Hobbs, 12 Gray (Mass.) 367, and Haywood v. 
 Hutchins, 65 N. C. 574. Complication of accounts, where the receipts are 
 all on one side, if it ever alone constitutes sufficient ground for interven- 
 tion of a Court of equity, must show a very strong case of entanglement : 
 Padwick c. Stanley, 9 Hare 627 ; see Taylor v. Tompkins, 2 Heisk. 
 (Tenn.) 89. 
 
 Upon demurrer, a general allegation that accounts are of a complicated 
 nature is not sufficient, unless supported by specific allegation of facts 
 showing their complex character: Padwick v. Hurst, 18 Jur. 763 ; 18 Beav. 
 575. See Lesley v. Rosson, 39 Mississippi 368. 
 
 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. Brown- 
 rigg, 1 Sim. N. S. 573 ; 2 De G., M. & G. 441 ; Barry . Stevens, 31 Beav. 
 258. 
 
 1 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 Verm. 
 97. One demanding account must himself account : Fairchild v. Valen- 
 tine, 7 Rob. (N. Y.) 564.
 
 448 ADAMS'S DOCTRINE OF EQUITY. 
 
 suing for a debt were himself indebted to the defendant, 
 he would nevertheless recover in his action, and the de- 
 fendant would be driven to a cross action for his own 
 claim. To obviate this inconvenience it was enacted 
 " that where there are mutual debts between the plaintiff 
 and defendant, or (if either party sue or be sued as execu- 
 tor or administrator), where, there are mutual debts be- 
 tween the testator or intestate and either party, one may 
 ^ e se ^ a S a ^ ns ^ the other. "(/) And *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 per- 
 son, although strictly speaking, there may not be actual 
 debts on both sides. () If the cross demands are of legal 
 cognisance, the right of set-off is also legal ; and unless one 
 of the demands involves an equitable element, their exist- 
 ence creates no equity for resorting to the Chancery. If 
 one or both be matter of equitable cognisance, as, for 
 example, if there be a question of trust or fraud, the 
 set-off may be enforced in the Court of Chancery.^) 1 
 There are also some cases occasionally spoken of as de- 
 pending on an equitable set-off, but which would be more 
 correctly termed retainers in the nature of set-off. As, 
 for example, where a legatee is indebted to his testator's 
 estate, and the executor, instead of paying the legacy, is 
 entitled to balance it against the debt. In such a case as 
 
 (t) 2 Geo. 2, c. 22 ; 8 Geo. 2, c. 24. 
 
 (k) 6 Geo. 4, c. 1C, s. 50; Smith's Merc. Law 608 ; Gibson v. Bell, 1 B. 
 N. C. 748. 
 
 (1) Vulliamy v. Noble, 3 Meriv. 593, 618 ; Rawson v. Samuel, Or. & P. 
 161 ; Dodd v. Lydall, 1 Hare 333. 
 
 1 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 Roman law. See Meriwethen v. Bird, 9 Ga. 594.
 
 OF ACCOUNT. 449 
 
 this there are not, in strictness, any mutual demands to 
 which the term set-off can be applied ; and the right of 
 the executor is rather a right to retain the debt out of the 
 legacy as a fund in hand, than to set it off against the 
 amount, (m) 
 
 The right of account is essentially different from this. 
 It is not a right to amalgamate independent cross de- 
 mands, for the purpose of enabling one action or suit to 
 suffice ; but it assumes that the several demands have no 
 independent existence, but have been so connected by the 
 original contract or course of dealing, that the only thing 
 which either party can claim is the ultimate balance. The 
 only right, therefore, is that of taking the account; and 
 the forms of procedure, both at law and in equity, are 
 framed for that purpose. An account of this kind is not 
 confined to mere receipts and payments of money, although 
 *it ordinarily occurs in that form. But it is 
 applicable to any dealings which have been 
 treated as equivalent to receipts and payments. An 
 account, for instance, will lie in respect of reciprocal 
 deliveries of goods, provided that in the course of deal- 
 ing 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 time to 
 time, so that a balance only of the price is ultimately 
 due.(w) 1 
 
 (m) Cherry v. Boulbee, 4 M. & C. 442 ; Courtney v. Williams, 3 Hare 
 539 ; Jones v. Mossop, 8 Id. 568 ; McMahon . Burchell, 2 Ph. 127 ; [sec 
 Keim v. Muhlenberg, 7 Watts 79.] 
 
 (n) Wellings . Cooper, cited 6 Ves. 139, and 9 Id. 473 ; O'Conner v, 
 Spaight, Sch. & L. 305 ; Cottam v. Partridge, 4 Man. & Gr. 271 ; Ranger 
 v. Great Western Railway, 1 Railw. Ca. 1. 
 
 1 Where a contractor to build a house has performed his part of the 
 29
 
 450 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 re- 
 sults 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 as- 
 signed by the Court. After the auditors have made their 
 report, a final judgment is given that the "plaintiff 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 expense. The auditors 
 have no power of deciding on controverted items, so as 
 to carry on a continuous inquiry, but must from time to 
 time, as any question occurs, interrupt their proceedings 
 by referring it to the Court or to the jury, as a distinct 
 issue of *law or fact, and must resume them again 
 when a decision has been obtained. And even 
 in respect to items not controverted they had not, until 3 
 & 4 Anne, c. 16, any general power to give effect to their 
 inquiry by administering an oath, or by examining 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 Councils. Page, Speers Ch. 159 ; sed 
 vide Sturtevant v. Goode, 5 Leigh 83.
 
 OF ACCOUNT. 451 
 
 parties. There is also an inconvenience in taking the ac- 
 count at law, by reason of the incapacity of the legal 
 procedure to operate beyond the immediate plaintiff and 
 defendant, or to include rights or claims which may be 
 collaterally involved. (0) 
 
 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 of 
 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. 15, that it lay against executors and administra- 
 tors of guardians, bailiffs, and receivers. 
 
 The difficulties thus existing at law are effectually ob- 
 viated 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 refer- 
 red to a Master, who is armed with power not only to 
 examine witnesses, but also to examine the parties them- 
 selves, and to compel production of books and documents. 
 It is not liable to interruption by controversies on parti- 
 cular 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 
 
 (o) 1 Selw. X. P. 1 ; 1 Story on Equity, s. 446-449.
 
 452 ADAMS'S DOCTRINE OF EQUITY. 
 
 are simultaneously re-examined by the Court, and either 
 at once determined, or, if necessary referred back to him 
 for view. 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 insti- 
 tution of cross suits; and thus having all their interests 
 before it, may so modify a single decree, as effectually to 
 embrace and arrange them all. 
 
 If the account is one which might be readily 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, (p) 1 
 
 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 proceed- 
 ing at law. 
 
 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 relief. 
 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 
 
 (p) Foley v. Hill, 1 Ph. 399; Darthez v. Clemens, 6 Beav. 165; [Pad- 
 wick v. Hurst, 18 Jurist 763 ; 18 Beav. 575 ; see ante, note, p. 222.] 
 
 1 Courts of equity will not entertain jurisdiction when there is no diffi- 
 culty in the remedy at law : Monk v. Harper, 3 Ed. Ch. 109 ; Turnpike 
 Co. 0. Allen, 2 Dev. & Batt. Eq. 115 ; Butler v. Ardis, 2 McCord Ch. 60, 
 71 ; Gloninger v. Hazard, 42 Penn. St. 401.
 
 OF ACCOUNT. 453 
 
 shall not disturb it.(y) 1 The account, however, may be 
 opened on the ground of fraud, or if important errors are 
 specified and proved ; but a general allegation that it is 
 erroneous will not suffice, (r) In some cases where a 
 *stated account is impeached, the Court will re- 
 open the whole and direct it to be taken de novo. 
 In others, when it is faulty in a less degree, it will allow 
 it to stand, with liberty to surcharge and falsify. This 
 leaves it in full force as a stated account, except so far as 
 it can be impugned by the opposing party. If he shows 
 the omission of a credit, that is a surcharge ; if he shows 
 the insertion of an improper charge, that is a falsification, (s) 
 The question of what will constitute a stated account is 
 in some measure dependent on the circumstances of the 
 case. The mere delivery of an account, without evidence 
 of contemporaneous or subsequent conduct, will not prove 
 it to be a stated account ; but an acceptance, implied from 
 circumstances, will suffice. Between merchants at home 
 an account which has been presented, and which has not 
 been objected to after the lapse of several posts, is treated 
 under ordinary circumstances as a stated account. Be- 
 tween merchants in different countries a similar rule pre- 
 vails; and if an account is transmitted from one to another, 
 showing a balance due to himself, and the other keeps it 
 two years without objection, the rule is to consider it as 
 allowed, (tf) 2 
 
 (q) Seton on Decrees 47 ; Connop . Hayward, 1 N. C. C.-35. 
 
 (r) Taylor . Haylin, 2 B. C. C. 310; Johnson . Curtis, 3 B. C. C. 266 ; 
 Mr. Belt's notes ; [Coleman v. Mellersh, 2 Macn. & Gord. 309.] 
 
 (s) Pit v. Cholmondeley, 2 Ves. 565 ; Seton on Decrees, 48 ; Millar . 
 Craig, 6 Beav. 433. 
 
 (t) Irvine v. Young, 1 S. & S. 333 ; Willis v. Jernegan, 2 Atk. 251 ; 
 
 1 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. 
 Ch. 293 ; Deil's Ex'rs. v. Rogers, 4 Dessaus. 175. 
 
 2 The Court may direct a stated account to be opened and taken de novo
 
 454 ADAMS'S DOCTRINE OF EQUITY. 
 
 It is also material to the equity for an account that it 
 be claimed within the proper time. Where the account is 
 
 Sherman v. Sherman, 2 Vern. 276 ; Tickel v. Short, 2 Ves. 239 ; 1 Dan. 
 C. P. 632. 
 
 upon a bill brought for the purpose, or where a sufficient foundation has 
 been laid in the answer : but only for fraud or errors specified, and which 
 are palpable or clearly proved : Slee v. Bloom, 20 Johns. 669 ; s. c. 5 
 Johns. Ch. 366 ; Lee's Admr. v. Reed, 4 Dana 112; Botifeur v. "Weyman 
 et al., 1 McCord's Ch. 156 ; Barrow v. Rhinelander, 1 Johns. Ch. 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, 13 Ark. 609 ; 
 Lockwood v. Thome, 1 Kern. (N. Y.) 170. And although in England the 
 Court has gone the length of holding, that where an account has been sur- 
 charged 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 spe- 
 cial 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. Ch. 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. Ch. 69; Phillips v. 
 Belden, 2 Ed. Ch. 1 ; Grover v. Hall, 3 Har. & J. 43 ; Freeland 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 Md. Ch. 83 ; Wil- 
 liams v. Savage Manufact. Co., 1 Id. 306. In cases of gross fraud the 
 Court will direct the whole account to be opened and taken de novo : Bank- 
 head v. Alloway, 6 Cold. (Tenn.) 56. 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 errors are proved, then as to other errors 
 charged, which the court is satisfied ought to be made the subjects of further 
 examination. In restating a stated account between partners, thus opened, 
 which has been made up of separate adventures and transactions, under- 
 taken 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 
 jime, or, at farthest, within the statutory period for commencing an action 
 at law upon matters of account: Lupton v. Janey, 13 Peters 381. And 
 where the bar of the statute is inapplicable, as e. g., where the demand is
 
 OF ACCOUNT. 455 
 
 sought under a legal title, or under an equitable title of 
 like nature with a legal one, that limit of time will be 
 adopted in equity which is prescribed by the Statute of 
 Limitations at law. When the bar of the statute is inap- 
 plicable, there may nevertheless be a bar in equity, origin- 
 ating in long acquiescence by the party, and in the conse- 
 quent presumption that he has either been satisfied 
 *his demand, or that he intended to relinquish r*oo"i 
 it.(w) 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 received as primd facie 
 evidence, so as to throw on the other side the onus of im- 
 peaching them.(f) 1 
 
 () 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 An- 
 nesley, 2 Id. 607, 629; 3 & 4 Wm. 4, c. 27, s. 24-27. 
 
 (v) Chalmer v. Bradley, 1J. & W. 51-65. 
 
 purely equitable, the court is loath to interfere after a considerable lapse 
 of time ; particularly after the death of parties whose transactions are in- 
 volved in the inquiry : Baker v. Biddle, Baldwin C. C. R. 418 ; Ellison v. 
 Moffat, 1 Johns. Ch. 46 ; Ray v. Bogart, 2 Johns. Cas. 432 ; Rayner v. Pear- 
 sail, 3 Johns. Ch. 578, 586; Mooers v. White, 6 Id. 360, 370; Boiling v. 
 Boiling, 5 Munf. 334 ; Randolph v. Randolph, 2 Call 537 ; Dexter v. Ar- 
 nold, 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. For- 
 rester, 1 McCord Ch. 318, 332; Ex'rs of Radcliffe v. Weightman, Id. 
 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 examine 
 accounts after any length of time, even though the person who committed 
 the fraud be dead: Botifeur v. Weyman, 1 McCord Ch. 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 commencement of suit : 
 Ogden v. Astor, 4 Sandf. S. C. 311. And so of fraud apparent on the face 
 of the account, or which would be discovered with slight examination : 
 Ibid. 
 
 1 As to when an account ought to be claimed, and what constitutes a 
 stated account, see Langdon v. Roane's Adm'r., 6 Ala. 518 ; Murray v. Tol-
 
 456 ADAMS'S DOCTRINE OF EQUITY. 
 
 [*229] *CHAPTER II. 
 
 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 
 
 land, 3 Johns. Ch. 575 ; Burden v. McElmoyle, 1 Bailey Eq. 375 ; Sher- 
 wood v. Sutton, 5 Mason 143 ; Freeland v. Heron et al., 7 Cranch 147 ; 
 Philips v. Belden, 2 Ed. Ch. 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 ; Dows v. Durfee, 10 Id. 213 ; Coopwood 
 v. Bolton, 26 Miss. 212 ; Brown v. Van Dyke, 4 Halst. Ch. 795. In Og- 
 den v. Astor, 4 Sandf. S. C. 311, it was held that an account by a surviving 
 partner, rendered to the representatires of his deceased copartner, one of 
 whom was a female unacquainted 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 ex- 
 amination : Williams v. Savage Manufact. Co., 1 Md. 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 
 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 asprimd facie correct and genuine, without further proof than his 
 oath, or that of hjs 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.
 
 OF PARTITION. 457 
 
 have a rightful unity of possession, and that its severance 
 cannot be adequately effected at law.(fl) 1 It is most fre- 
 quently applied in effecting partition between co-owners, 
 but its principle extends to suits for assignment of dower 
 and for relief against substraction or non-payment of tithes. 
 
 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 abol- 
 ished by a late statute, was by a writ of partition, issued 
 to the sheriff, requiring him to make partition by the ver- 
 dict of a jury, and to assign to each co-owner his part in 
 severalty . In the case of coparceners, who acquire their 
 united estate by act of law, this writ always lay as of 
 common right. It did not orginally lie in favor of a 
 joint tenant or tenant in common, whose united estate is 
 conferred by gift or contract, but it was afterwards ex- 
 tended to them by statute. (#) The partition of copyholds 
 *was effected by a plaint in the lord's Court in I-#OOA-I 
 the nature of a writ of partition. The writ and 
 the plaint are now abolished. (<?) 
 
 (a) Pulteney v. Warren, 6 Ves. 73, 89. 
 
 (b) 31 Hen. 8, c. 1 ; 32 Id. c. 32. (c) 3 & 4 Wm. 4, c. 27, s. 36. 
 
 1 The partition of real property is regulated in nearly all of the United 
 States by special statutes, and the efficiency and adaptability of the common 
 law action greatly increased. These statutes will be found collected in a 
 note to Washburn on Heal Property, vol. i., p. 433. The flexibility and 
 neatness of the equitable partition must nevertheless, in many instances, 
 render that method preferable to the more unyielding forms of the common 
 law action. Upon the subject of partition in equity, see the notes to Agar 
 v. Fairfax, 2 Lead. Cas. Eq. 374.
 
 458 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 whieh a division may be 
 embarrassed, or the mischief which it may entail on the 
 property, (d) 1 The jurisdiction was originally confined 
 
 (d) Agar v. Fairfax, 17 Ves. 533 ; Warner v. Baynes, Amb. 589 ; Turner 
 . Morgan, 8 Ves. 143. 
 
 1 Partition between tenants in common of real property is a matter of 
 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 Greene (Iowa) 94; Howey v. Goings, 13 111. 95; Donnell v. Mateer, 7 
 Ired. Eq. 94 ; Holmes . Holmes, 2 Jones Eq. 334. In Georgia, it appears 
 that a bill for equitable partition will only lie, where there is some diffi- 
 culty 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 Ga. 1 ; Rutherford v. Jones, 14 Id. 521 ; 
 Hall v. Piddock, 21 N. J. 311. 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 Id. 493 ; Smith v. Smith, 10 Paige 470 ; Steedman v. Weeks, 
 2 Strob. Eq. 141 ; Albergottie v. Chaplin, 10 Rich. Eq. 428 ; Pell v. Ball, 
 1 Id. 361 ; Collins v. Dickinson, 1 Hay. 240 ; Davis v. Davis, 2 Ired. Ch. 
 607 ; Wilkin v. Wilkin, 1 Johns. Ch. Ill ; Manners v. Manners, 1 Green 
 Ch. 384 ; Wisely v. Findley, 3 Rand. 361 ; Stuart v. Coalter, 4 Id. 74 ; 
 Garrett v. White, 3 Ired. Ch. 131 ; Bruton v. Rutland, 3 Humph. 435 ; 
 Hosford v. Merwin, 5 Barb. S. C. 51 ; Burhans v. Burhans, 2 Barb. Ch. 
 398 ; Trayner v. Brooks, 4 Hey. 295 ; Maxwell v. Maxwell, 8 Ired. Eq. 25 ; 
 Foust v. Moorman, 2 Carter 17 ; Boone v. Boone, 3 Md. Ch. 497 ; Whil- 
 lock v. Hale, 10 Humph. 64; Corbett v. Corbett, 1 Jones Eq. 114 ; Walker 
 . Laflin, 26 111. 472 ; Williams v. Wiggand, 53 111. 233 ; Gourley v. Wood- 
 bury, 43- Verm. 89 ; Hassam v. Day, 39 Miss. 392; Dewitt v. Ackerman, 2 
 Green (N. J.) 215 ; but see, Cuyler v. Ferrill, 1 Abb. (U. S.) 169 ; Moren- 
 haut v. Higuera, 32 Cal. 289 ; Bollo v. Navarro, 33 Id. 459. 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, 13 111. 95. But actual possession on the part of the 
 complainant is not necessary ; it is sufficient if there be not a legal dis- 
 seisin : Foust 0. Moorman, 2 Carter 17 ; Denton v. Woods, 19 La. Ann. 356 ; 
 Florence v. Hopkins, 46 N. Y. 182. Though in general a partition will
 
 OF PARTITION. 459 
 
 to land of freehold tenure, but has been extended to 
 copyholds by statute. (e) 
 
 (e) Horncastle v. Charles-worth, 11 Sim. 315 ; Jope . Morshead, 6 Bear. 
 213 ; 4 & 5 Viet. c. 35, s. 85. 
 
 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 . Mateer, 7 Ired. Eq. 94; 
 Foustr. Moorman, 2 Carter 17; Carter . Taylor, 3 Head. (Tenn.) 30; 
 Leverton v. Waters, 7 Cold. (Tenn.) 20. 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 respondent 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. Matee, ut supra. 
 On this principle that equity does not determine upon conflicting legal 
 titles in partition, a decree therein is not conclusive evidence in ejectment : 
 Whillock r. Hale, 10 Humph. 64. 
 
 Partition can be had of a mere equitable estate: Hitchcock v. Skinner, 1 
 Hoff. Ch. 21 ; or of an incorporeal hereditament: Bailey v. Sisson, 1 R. 
 I. 233. 
 
 If land sought to be parted is subject to a mortgage, the equity of re- 
 demption only can be divided : Wotton v . Copeland, 7 John. Ch. 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 Vicksbug, 1 How. (Miss.) 379. 
 
 Parties to proceedings in partition, acquire no new title thereby ; and 
 where they are made such by publication, without actual notice are not 
 estopped thereby from setting up their legal title : McBain v. McBain, 15 
 Ohio St. 337. 
 
 The wife of a tenant in common is not a necessary party to a suit for 
 partition : Matthews v. Matthews, 1 Ed. Ch. 565. Yet see Graydon v. 
 Graydon, 1 McMullan Eq. 63. 
 
 Judgment creditors and mortgagees of tenants in common, are not proper 
 parties : Sebring v. Mersereau, 9 Cowen 344 ; Harwood v. Kirby, 1 Paige 
 469 ; Low v. Holmes, 2 Green (N. J.) 148 ; Speer v. Speer, 1 McCarter (N. 
 J.) 240 ; Thruston v. Minke, 32 Md. 571. Though a mortgagee may be 
 joined where his interests would otherwise be injured : Whitton v. Whit- 
 ton, 38 N. Hamp. 135. Nor a widow entitled to her "living" upon a 
 tract of land, the heirs of the fee seeking a partition : McClintic . Manns, 
 4 Munf. 328. Nor a railroad corporation, which has laid out its road over 
 lands held by tenants in common : Weston v. Foster, 7 Mete. 297- A de- 
 cree of partition of the estate of an intestate conveys only a contingent in-
 
 460 ADAMS'S DOCTRINE OF EQUITY. 
 
 The principal inconveniences attending partition at 
 law were, that the writ could only be issued by and 
 against the tenants in possession, so that an estate in re- 
 mainder or contingency could not be bound; that the 
 judgment was for partition according to the title 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 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 interested 
 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. (</) 
 The defendant's titles need not be proved by the plain- 
 f*2^n ^> kut *naay be ascertained by a reference' to 
 the Master ;(h) and the partition itself, being- 
 effectuated by mutual conveyances, may be made in a 
 
 (/) Baring v. Nash, 1 Ves. & B. 551. 
 
 (g) Brook v. Lord Hertford, 2 P. Wms. 518 ; Gaskell v. Gaskell, 6 Sim. 
 643 ; Wills v. Slade, 6 Ves. 498 ; Seton on Decrees 275. 
 
 (h) Jope v. Morshead, 6 Beav. 213 ; Agar v. Fairfax, 17 Ves. 533, 542. 
 
 terest, defeasible in behalf of the creditors of the intestate: Dresher v. 
 Allentown, &c., Co., 52 Penn. St. 225. See as to dower, post, 233. In 
 New York, a doweress cannot be sole plaintiff or defendant : Wood v. 
 Clut, 1 Sandf. Ch. 199. In Maryland, by statute, a widow's dower must 
 be set off to her in an action of partition. See Phelps v. Stewart, 17 Md. 
 240 ; Stallings v. Stallings, 22 Id. 41. A tenant by the curtesy initiate 
 may be a party to a bill for partition : Hiker v. Drake, 4 Edw. Ch. 668 ; 
 as may tenants by curtesy consummate. See 1 Roper on Husband and 
 Wife 36.
 
 OF PARTITION. 461 
 
 more convenient form. Its general principle is of course 
 the same as that of a partition at law, viz., a division of 
 the estate ; but if the estate is not susceptible of an 
 exact division, an allotment may be made in unequal 
 shares, with compensation for the inequality by creation 
 of a rent or charge. A partition, however, must be bond 
 fide made, and the pecuniary charge confined to correc- 
 tions 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, however inconvenient such 
 division may be.(^) 1 
 
 (i) Clarrendon . Hornby, 1 P. "Wms. 446 5 Turner . Morgan, 8 Yes. 
 143 ; Story v. Johnson, 2 Y. & C. 586, 611 ; Horncastle v. Charlesworth, 11 
 Sim. 315 ; Mole v. Mansfield, 15 Id. 41 ; Vin. Ab. Partition, Z., PL 2. 
 
 1 In case the estate cannot be exactly divided, the court will decree a 
 pecuniary compensation to one or more of the parties for owelty or equality 
 of partition, or charge part of the land with a rent, servitude, or easement, 
 for their benefit. See Smith v. Smith, 10 Paige 470; Graydoni?. Graydon, 
 1 McMullan Eq. 63 ; Haywood v. Judson, 4 Barb. S. C. 228 ; Warfield 
 v. Warfield, 5 Har. & J. 459 ; Wynne v. Tunstall, 1 Dev. Ch. 23 ; Cox v. 
 McMullin, 14 Gratt. 82 ; Phelps v. Green, 3 Johns. Ch. 302 ; Larkin r. 
 Mann, 2 Paige 27 ; Norwood v. Norwood, 4 Har. & J. 112. 
 
 One party may have given to him a right of way over another's share : 
 Cheswell v. Chapman, 38 N. H. 17 ; see also, Hoffman v. Savage, 15 Mass. 
 130 ; Chandler . Goodrich, 23 Maine 78. 
 
 In most of the states, chancery has power to order a sale of the premises 
 in a suit for partition. See Pell . Ball, 1 Rich. Ch. 361 ; Thompson v. 
 Hardman, 6 John. Ch. 436 ; Steedman v. Weeks, 2 Strob. Eq. 145 ; Dun- 
 ham v. Minard, 4 Paige 441 ; Reynolds v. Reynolds, 5 Id. 161 ; Calwell v. 
 Boyer, 8 Gill & J. 136 ; Matter of Skinner, 2 Dev. & Batt. Eq. 63; Smith, 
 v. Brittain, 3 Ired. Ch. 347 ; Royston v. Royston, 13 Ga. 425. So in Penn- 
 sylvania : Acts of April 18, 1853, s. 2, and April 22, 1863, a. 1. But see, 
 on the other hand, Deloney v. Walker, 9 Porter 497 ; Norment p. Wilson, 
 5 Humph. 310. 
 
 In case of a sale, the shares of infant defendants ought not to be paid to 
 their guardians, ad litem, but should be brought into court, and invested 
 for the benefit of such infants : Carpenter v. Schermerhorn, 2 Barb. Ch. 
 314. So, if such infant is a wife, her share should not be paid to the hus- 
 band : Sears v. Hyer, 7 Paige 483.
 
 462 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 ascertained, 
 either by evidence in the cause, or by the Master's report, 
 a commission is issued to persons nominated by the par- 
 ties, 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 guided 
 by the principles already explained. After making it, 
 they allot to the several parties their respective shares ; 
 and in doing this they ought to look to their respective 
 circumstances, and to assign to each that part of the pro- 
 perty which will best accommodate him.(^r) 1 
 
 The return of the commissioners, when made, is con- 
 firmed by the Court. 2 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 allot- 
 
 ments, but it requires to be perfected by mutual 
 conveyances ; and the next step, therefore, after confirma- 
 tion of the return, is a decree that the plaintiffs and de- 
 
 (k) Story v. Johnson, 1 Y. & C. 538 ; 2 Id. 586. 
 
 1 A less expensive mode than the appointment of commissioners is for 
 the court to make a declaration that the estate ought to be divided, with 
 liberty to the parties interested therein to bring before the judge at cham- 
 bers proposals for partition. See Clarke v. Clayton, 2 Giff. 333. 
 
 1 2 The report of the commissioners is regarded in the same light as a ver- 
 dict at law, and will only be set aside for such cause as would induce a 
 Court to grant a new trial : Livingston v. Clarkson, 3 Edw. Ch. 596. See 
 Wilhelm v. Wilhelm, 4 Md. Ch. 330. For the practice in New Jersey on 
 the commissioners' report, see Bentley v. The Dock Co., 1 McCart. 480. 
 Commissioners have no judicial powers to determine any question of the 
 title : Allen v. Hall, 50 Maine 253.
 
 OF PARTITION. 463 
 
 fendants 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. 1 If any of the 
 co-owners have settled or mortgaged their shares, direc- 
 tions will be given for framing the conveyance so that all 
 parties shall have the same interests in the divided shares, 
 which they before had in the undivided shares. (I) If the 
 infancy of the parties or other circumstances prevent the 
 immediate execution of conveyances, the decree can only 
 extend to make partition, give possession, and order en- 
 joyment accordingly until effectual conveyances can be 
 made. If the defect arises from infancy, the infant must 
 have a day after attaining twenty-one years to show cause 
 against the decree. (m) 2 
 
 (I) Horncastle v. Charlesworth, 11 Sim. 315, 317 ; Story v. Johnson, 2 
 Y. & C. 586. 
 
 (7/1) Brook r. Lord Hertford, 2 P. Wins. 518 ; Seton on Decrees 275. 
 
 1 The effect of a decree of partition is no more than that of an ordinary 
 conveyance at 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 Md. 377. In Pennsylvania it is provided by the Act of 1857, 
 that the decree of a Court of equity shall have the same effect in vesting 
 the titles of the several purparts, as the judgment in the common law 
 action that the partition remain firm and stable forever ; and it has been 
 held that under this statute conveyances are unnecessary: Griffith v. Phil- 
 lips, 3 Grant's Cas. 381. The right of property passes from the date of 
 the commissioners' report: Dixon v. Warters, 8 Jones L. (N. C.) 449. 
 
 2 Where some of the owners are infants, the return of the commissioners 
 for a partition will not be confirmed until the infants have been brought 
 before the Court by bill : House . Falconer, 4 Dessnus. 86. Independently 
 of statutes, the Court has power to decree a conveyance by an infant party 
 in a suit for partition to be binding on him, unless he shows cause within 
 six months after becoming of age : Jackson v. Edwards, 7 Paige 386, 405. 
 See also, Latimer r. Rogers, 3 Head. (Tenn.) 692 ; Long . Mulford, 17 
 Ohio St. 484. 
 
 But in New York, where all the parties are infants, proceedings in par-
 
 464 ADAMS'S DOCTRINE OF EQUITY. 
 
 In addition to the decree for a partition, the Court may 
 also, if either of the co-owners has been in the exclusive 
 reception of the rents, decree an account of his receipts. 1 
 But the mere fact .of his having occupied the property will 
 not of itself make him liable for an occupation rent ; for 
 the effect of such a rule would be that one tenant in com- 
 mon, by keeping out of the actual occupation of the 
 premises, might convert the other into his bailiff, and pre- 
 vent him from occupying them, except upon the terms of 
 paying rent.(w) 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 
 pj.no en them *an account at law. It is now confined in 
 all cases to six years, (o) 2 
 
 (n) Lorimer v. Lorimer, 5 Mad. 363 ; McMahon v. Burchell, 2 Ph. 127 ; 
 Henderson v. Eason, 2 Ph. 308. 
 
 (o) Prince . Heylin, 1 Atk. 493 ; 4 Ann. c. 16, s. 27 ; 3 & 4 Wm. 4, c. 
 
 27. 
 
 tition are invalid : Gallatian v. Cunningham, 8 Cowen 361. Nor can an 
 infant maintain a bill alone : Postley v. Kain, 4 Sandf. Ch. 508. See 
 Johnson v. Noble, 24 Mo. 252. 
 
 1 Rozier v. Griffith, 31 Mo. 171. See also, Leach v. Beattie, 33 Verm. 
 195 ; Early v. Friend, 16 Gratt. 21. 
 
 2 A tenant in common in sole possession, is chargeable, upon partition, 
 with an occupation rent : Hitchcock v. Skinner, 1 Hoff. Ch. 21; Backler 
 v. Farrow, 2 Hill Ch. 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. Ch. 64 ; Hitchcock v. Skinner, supra. Or, 
 as is most usual, his share shall include the improvements : St. Felix v. 
 Rankin, 3 Ed. Ch. 323 ; Brookfield v. Williams, 1 Green Ch. 341 ; Sneed 
 v. Atherton, 6 Dana 276 ; Borah v. Archer, 7 Id. 176 ; Dean v. O'Meara, 
 47 111. 120.
 
 OF PARTITION. 465 
 
 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. 1 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 in- 
 convenience, there is a jurisdiction in the Court of Ad- 
 miralty to entertain the application of a majority in value 
 or interest, for liberty 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 
 expenses, and have no share in the profits. It is con- 
 sidered that the same right exists wfrere the owners are 
 equally divided, but its extension to a minority is more 
 doubtful. O) 2 
 
 (p) Story on Partnership, ss. 427-439; Smith's Merc. Law 174; Davis 
 v. Johnston, 4 Sim. 539 
 
 1 See as to the jurisdiction of equity in case of part-owners : Crapster v. 
 Griffith, 2 Bland 5 ; Milburn v. Guythur, 8 Gill 92 ; Brenan v. Preston, 2 
 De G., M. & G. 813 ; 10 Hare 331 ; Darby v. Baines, 9 Id. 369 ; South- 
 worth v. Smith, 27 Conn. 335; Mustard . Robinson, 52 Maine 54. Equity 
 has undoubted jurisdiction to enforce agreements of part-owners, as in 
 other cases : Darby . Baines. It will also have jurisdiction to aid by in- 
 junction 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 appearing 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. 
 
 2 In Davis & Brooks v. The Brig Seneca, 6 Penn. L. J. 213, it was held 
 by the Circuit Court of the United States for the Eastern District of Penn- 
 sylvania, that a sale might be decreed in Admiralty, where part-owners 
 are equally divided. See The Orleans v. Phoebus, 11 Peters 175. 
 
 30
 
 466 ADAMS'S DOCTRINE OF EQUITY. 
 
 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. 1 
 
 1 See Phares v. Walters, 6 Clarke (Iowa) 106. 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 freehold, as well as of an estate of inheritance : 
 Dunham v. Osborn, 1 Paige 634. 
 
 She is, in most of the states, endowable of an equitable interest held by 
 her husband in land, provided he continues to hold it to the time of his 
 death : Hawley v. James, 5 Paige 318 ; Lawson v. Morton, 6 Dana 471 ; 
 Hamilton v. Hughes, 6 J. J. Marsh. 581 ; Gillespie v. Somerville, 3 Stew. 
 & Port. 447 ; Winn v. Elliott, Hardin 482 ; Lewis v. Moorman, 7 Porter 
 522 ; Shoemaker v. Walker, 2 S. & R. 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 t>. Nicholson, Walker (Miss.) 247 ; .Bowie v. Berry, 1 
 Md. Ch. 452; Thompson v. Thompson, 1 Jones (N. C.) 430 ; Stewart v. 
 Heard, 4 Md. Ch. 319. See on the other hand, Kirby v. Dalton, 1 Dev. Ch. 
 195 ; Milledge v. Lamar, 4 Dessaus. 638 ; Nicoll v. Ogden, 29 111. 323, 
 where the authorities are reviewed ; also Gano v. Gilruth, 4 Greene (Iowa) 
 453. 
 
 She is endowable of an equity of redemption : Smith v. Jackson, 2 Ed. 
 Ch. 28 ; Titus v. Neilson, 5 Johns. Ch. 452 ; Keith v. Trapier, 1 Bailey Ch. 
 63 ; Bell v. Mayor of N. Y., 10 Paige 49 ; Evertson v. Tappen, 5 Johns. Ch. 
 497 ; Russell v. Austin, 1 Paige 192 ; Reed v. Morrison, 12 S. & R. 18 ; 
 Kittle v. Van Dyck, 1 Sandf. Ch. 76 ; Hartshorne v. Hartshorne, 1 Green 
 Ch. 349 ; Criswell v. Morris, 1 McCart. 101 ; Eldridge . Eldridge, Id. 1U5 ; 
 Heth v. Cocke, 1 Rand. 344 ; Wheatley v. Calhoun, 12 Leigh 264 ; Man- 
 ning 0. Laboree, 33 Maine 343 ; Rossiter v. Cossit, 15 N. H. 38 ; Mantz v. 
 Buchanan, 1 Md. Ch. 202; though she joined in the mortgage: Simonton 
 v. Gray, 34 Maine 50. See ante, 193, note ; Davis v. Wetherill, 13 Allen 
 (Mass.) 60; but see Decker v. Hall, 1 Edm. (N. Y.) Sel. Cas. 279. Of a 
 rent : Herbert v. Wren, 7 Cranch 370; Williams v. Cox, 3 Ed. Ch. 178. 
 Her right is superior to the vendor's lien for purchase-money : Clements 
 v. Bostwick, 38 Ga. 1 ; contra, Thorn . Ingram, 25 Ark: 52 ; Walton v. 
 Hargreaves, 42 Miss. 18 ; Cooke v. Bailey, Id. 81 ; see also, Wing v. Ayre, 
 53 Maine 138. Of land bought with partnership funds, if it is not properly 
 the partnership property : Wheatley v. Calhoun, 12 Leigh 264. Of a fee 
 simple, determinable by executory devise, on her husband dying without 
 issue living at the time of his death: Evans v. Evans, 9 Penn. St. 190; 
 Milledge v. Lamar, 4 Dessaus. 637. And even of railroad shares, although 
 a part of the amount due on the stock has been paid since the death of the
 
 OF ASSIGNMENT OF DOWER. 467 
 
 By the old law the widow's right of dower was a right 
 to have assigned to her on the death of her husband, a 
 
 holder : Price r. Price, 6 Dana 107 ; Copeland v. Copeland, 7 Bush (Ky.) 
 349. 
 
 But where there is but a momentary seisin of- the husband, dower doe 
 not attach : Mayburry p. Brien, 15 Peters 21 ; Bullard v. Bowers, 10 N. 
 H. 500 ; Gammon . Freeman, 31 Maine 243 ; Foster v. Gordon. 49 Id. 
 54: Welsh v. Buckins, 9 Ohio (N. S.) 331; Eslava v. Lepetre, 21 Ala. 
 504 ; Edmonson p. Welsh, 27 Id. 578. The widow is not endowed of land 
 given, and of land received in exchange. See Stevens p. 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. Manufacturing Co., 3 Mason 347 ; Robison v. Codman, 
 1 Sumner 121 ; Derush v. Brown, 8 Ham. 412 ; Bartlett v. Gouge, 5 B. 
 Monr. 152 ; Cowman v. Hall, 3 Gill & J. 398 ; Thompson p. Murr.iy, 2 Hill 
 Ch. 204, 213 ; Dean p. Mitchell, 4 J. J. Marsh. 451 ; Lenox v. Notrebe, 1 
 Hempst. 251; White v. Drew, 42 Mo. 561 : Buffalo, &c., R. R. v. Lampson, 
 47 Barb. (N. Y.) 533. She is however entitled to dower until such trust 
 is established : Bailey v. West, 41 111. 290. Nor of partnership property 
 as against creditors of the firm : Greene P. Greene, 1 Ham. 535. See also 
 Sumner p. Hampston, 8 Ham. 338 ; Richardson p. Wyatt, 2 Dessaus. 471 ; 
 Pierce v. Trigg, 10 Leigh 406 ; Goodburn v. Stevens, 1 Md. Ch. 420 ; Gal- 
 braith v. Gedge, 16 B. Monr. 631; and post, 246, note ; sed vide Smith v. 
 Jackson, 2 Ed. Ch. 28, wherein the doctrine of Greene v. Greene, supra, is 
 questioned. Nor of the land of husband, found, before marriage, to be of 
 unsound mind, and who continued so until death : Jenkins v. Jenkins, 2 
 Dana 102. Nor of the estate of a joint tenant: Mayburry v. Brien, 15 
 Peters 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 of land of 
 which her husband was in possession under an executory contract, the 
 terms of which he had not complied with during his lifetime : Lobdell p. 
 Hayes, 4 Allen 187. 
 
 Xor shall the widow entitled to dower in land sold by her husband, take 
 any advantage from the improvements made by the purchaser, but may 
 from the increased value of the land : Thompson v. Morrow, 5 S. & R. 
 290 ; Braxton v. Coleman, 5 Call 433 ; Hazen v. Thurber et al., 4 Johns. 
 Ch. 604 ; Bowie P. Berry, 1 Md. Ch. 452 ; Dashiel r. Collier, 4 J. J. Marsh. 
 603; Beavers r. Smith, 11 Ala. 20; Mosher p. Mosher, 15 Maine 371; 
 Powell r. Manufacturing Co., 3 Mason 347 ; Dunseth p. Bank U. S., 6 Ohio 
 77: Manning v. Laboree. 33 Maine 343; Johnstown p. Van Dyke, 6
 
 468 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 inhe- 
 rited. If the thing of which she was endowed were di- 
 visible, her dower must have been set out by metes and 
 bounds : if it were indivisible, ghe must have been en- 
 dowed specially, as of the third presentation to a church ; 
 * the third toll dish of a mill ; the third part of the profits 
 f an ffi ce ? an d the like. Upon *the death of the 
 husband her right to dower became perfect, but 
 unless her precise portion of land has been already speci- 
 fied, 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 WTit of dower, or of dower 
 unde mhil habet, and the sheriff was appointed to assign it. 
 The recent Statute of Limitations, which abolished other 
 real actions, has retained these writs, (q) 
 
 The inconveniences attending assignment at law, 
 coupled with the difficulties 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 purpose, (r) 1 
 
 (q) 1 Steph. Bl. 249-254 ; 3 Steph. Bl. 657-661 ; 3 & 4 W m . 4, c. 27, s. 
 36. 
 
 (r) Curtis v. Curtis, 2 B. C. C. 620 ; Mundy v. Mundy, 2 Ves. J. 122; 
 Pulteney v. Warren, 6 Id. 73, 89 ; Agar v. Fairfax, 17 Id. 533, 552; Seton 
 261. 
 
 McLean 422. See also Fritz v. Tudor, 1 Bush (Ky.) 28. Yet see, as to 
 her advantage from the land's rise in value, Tod v. Baylor, 4 Leigh 498 ; 
 Hale v. James, 6 Johns. Ch. 258 ; Humphrey v. Phinney, 2 Johns. 484. 
 A -widow, who was not a citizen of the United States, at the time of her 
 husband's death, cannot be endowed : Alsberry v. Hawkins, 9 Dana 177. 
 1 Courts of equity have concurrent jurisdiction with courts of law, in the
 
 OF ASSIGNMENT OF DOWER. 469 
 
 At the same time with the decree for assigning dower, 
 an account might, before the late statute, 3 & 4 Wni. 4, 
 c. 27, s. 40, have been directed of the rents and profits 
 received since the husband's decease, and payment of one- 
 third to the widow. At common law the demandant in 
 a writ of dower, as in any other real action, was not en- 
 titled 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 recover- 
 ing seisin." In accordance with this rule of law, a dow- 
 ress was entitled in equity to an account of rents and pro- 
 fits from the death of her husband ; and although at law 
 her right to damages would be lost by the death of the 
 heir, yet such death, if occurring pendente lite, was not 
 allowed in equity to "prejudice her claim, (s) It 
 is now 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 recovered by action or suit for a longer 
 period than six years next before the commencement of 
 such action or suit. 1 
 
 (*) 20 Hen. 3, c. 1 ; Curtis v. Curtis, 2 B. C. C. 620; Oliver r. Richardson* 
 9 Ves. 222. 
 
 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 Ala. 439 ; Kiddall v. Trimble, 1 Md. Ch. 
 143 ; Gano P. Gilruth, 4 Greene (Iowa) 453 ; Palmer v. Casperson, 2 Green 
 (N. J.) 204; Brooks v. Woods, 40 Ala. 538. But, where the widow 
 applies for equitable relief in relation to dower which a Court of law can- 
 not grant, she cannot resist an equitable defence as against a purchaser, 
 for a valuable consideration, who is ignorant of her claim of dower : Blain 
 v. Harrison, ut sup. 
 
 1 A widow is entitled in equity to an account of the rents and profits
 
 470 ADAMS'S DOCTRINE OF EQUITY. 
 
 The right of the widow under certain modifications, 
 still exists ; 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 hus- 
 band may defeat by conveyance or devise, or by a simple 
 declaration that his estate shall be exempt, (t] 
 
 The equity for relief against subtraction or non-pay- 
 ment of tithes originates in the fact that the tithes, with 
 the remaining produce, continue rightfully in possession 
 of the tithe-payer, who is bound to set them apart and to 
 account for them to the tithe-owner ; and it is accordingly 
 an equity against the tithe-payer alone, and not against 
 any third person who may have received the tithes under 
 an adverse claim. In this latter case an ejectment is the 
 proper remedy, (w) 
 
 The right to tithe is a right capable of enforcement at 
 the common law, and also to some extent in the Ecclesias- 
 tical 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 ob- 
 serve 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 
 
 (0 3 & 4 Wm. 4, c. 105. 
 
 (u) Pulteney v. Warren, 6 Ves. 73, 90; St. Asaph v. Williams, Jac. 349. 
 
 until her dower is assigned, independently of the Statute of Merton : Keith 
 v. Trapier-, 1 Bailey Eq. 63. In Selliuan v. Bowen, 8 Gill & J. 50, and 
 Steiger v. Hillen, 5 Id. 121, it was held that she was entitled to 
 damages from her husband's alienee from the time of demand made by 
 her. In Tod v. Baylor, 4 Leigh 498, it was held that she was entitled to 
 an account of the profits only, from the date of the subpoena. And in 
 Carton v. Bates, 4 B. Monr. 366 ; Golden v. Maupin, 2 J. J. Marsh. 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 ac- 
 count of rents and profits, only from the time of assignment, where the 
 husband does not die seised : Bolser . Cushman, 34 Maine 348.
 
 OF SUBTRACTION OF TITHES. 471 
 
 in the nature of a forfeiture, he is required to waive it if 
 he sues in equity, (v] 
 
 The relief prayed by a bill for tithes may be resisted 
 in two ways: the defendant may either deny the plain- 
 tilt'" s title db originc, alleging an adverse right in some 
 third *person, and establishing it by proof of an 
 actual grant, or by presumption arising from long 
 enjoyment ;(w) or he may admit a primary title in the 
 plaintiff, and insist on an absolute or partial discharge, 
 either by a prescription de non deeimando, 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 mode decimandi, commonly called a 
 modus, which is where by immemorial usage, a particular 
 mode of tithing has been allowed, different from the pay- 
 ment of a tenth in kind ; or by a composition real, which 
 is an agreement made between the owner of lands and the 
 parson or vicar, with the consent of the ordinary and patron 
 that such lands shall be discharged from tithe by reason 
 of land, or other real recompense, given to the person in 
 their stead, (x) 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 prescription.^ non decimando, the Court may either de- 
 cide 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 
 
 (r) 3 Steph. Bl. 123-125, 708. (w) Id. 125-127. 
 
 (x) 3 Steph. Bl. 127-133. 
 
 (y) Knight . Waterford, 11 Cl. & F. 657 : Raine r. Cairns, 4 Hare 327 
 333; 12C1. &F. 833.
 
 472 ADAMS'S DOCTRINE OF EQUITY. 
 
 trying the existence of the modus at law, he is entitled 
 to demand an issue for that purpose. (0) 
 
 The equitable jurisdiction over tithes and moduses was 
 originally vested in .the Court of Exchequer. That of the 
 Court of Chancery over the same subject is of much later 
 origin, or at least was a matter of controversy to a much 
 later period, and was not firmly established until after the 
 I~* 9 371 *R es t ra ti n - Since that period the Court of 
 Chancery has always been held to have a concur- 
 rent authority with the Exchequer; and when the equit- 
 able jurisdiction of that Court was abolished, it obtained 
 the sole jurisdiction on the subject. 
 
 The jurisdiction was originally exercised without re- 
 ference to the value of the tithe. But by a recent stat- 
 ute it is confined to cases where the yearly value is up- 
 wards of 10/., 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 bond fide in 
 question, (a) 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, (b] 
 
 The equity for ascertainment of boundary arises when 
 lands are held in severalty by independent proprietors, 
 but the boundaries have been confused by the misconduct 
 of the defendant, or of those under whom he claims. 1 The 
 
 (z) Gordon . Simkinson, 11 Ves. 509 ; 2 Dan. C. P. 1056 ; 1 Madd. C. 
 P. 334. 
 
 (a) 5 & 6 Wm. 4, c. 74 ; 4 & 5 Viet. c. 36 ; 3 Steph. Bl. 709. 
 
 (b) 6 & 7 Wm. 4, c. 71 ; 1 Viet. c. 69 ; 1 & 2 Viet. c. 64 ; 2 & 3 Viet. c. 
 62 ; 3 & 4 Viet. c. 15 ; 5 & 6 Viet. c. 54 ; 3 Steph. Bl. 133, 137. 
 
 1 See Mayor, &c., of Basingstoke v. Lord Bolton, 1 Drew. 170 ; 17 
 Jur. 57. 
 
 A court of equity has no jurisdiction to fix boundaries of legal estates, 
 unless some equity is superinduced by the act of the parties: Norris's 
 Appeal, 64 Penn. St. 275 ; Tillmes v. Marsh, 67 Id. 507.
 
 ASSIGNMENT OF BOUNDARY. 473 
 
 mere confusion of boundary will not create it, for the fact 
 that a man cannot ascertain his property does not consti- 
 tute an equity against another person. But it must be 
 shown that the confusion has been caused by the defend- 
 ant's misconduct, or by the misconduct of those under 
 whom he claims. As, for example, where a tenant has 
 confounded the boundaries to prevent a distress ; or a copy- 
 holder 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 clefendant's possession. It will, at the same 
 time, if necessary, decree an account of rents and profits, (c) 
 The equity for payment of rent arises where, by con- 
 fusion of boundaries, *by fraudulent removal of r#oocn 
 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-con- 
 tinued 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) 1 
 
 (c) Wake v. Conyers, 1 Eden 331 ; Speer v. Crawter, 2 Meriv. 410 ; Mil- 
 ler v. Warmington, 1J. & W. 464. 
 
 (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 . New Radnor, 2 Id. 338 ; 
 Attorney -General v. Jackson, 11 Ves. 365; [Mayor, &c. of Basingstoke v. 
 Lord Bolton, 17 Jur. 57 ; 1 Drew. 170.] 
 
 1 Although a Court of chancery will not ordinarily take jurisdiction of 
 a case of rent, yet when the time of payment, or the amount to be paid is 
 uncertain, or when the distress is evaded or obstructed by fraud, the Court 
 will take jurisdiction, and give relief: Dawson v. Williams, 1 Freem. Ch. 
 99. So where the lease has been lost : Lawrence v. Hammitt, 3 J. J. Marsh. 
 287.
 
 474 ADAMS'S DOCTRINE OF EQUITY, 
 
 [*239] ^CHAPTER III. 
 
 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) 1 In order that such common profit may be ob- 
 
 (a) 2 Steph. Bl. 150; Coope v. Eyre, 1 H. Blacks. 37. 
 
 1 The law of partnership is a branch of the law of agency, each partner 
 holding towards the other the double relation of principal and agent. This 
 is expressed with great clearness in Cox v. Hickman, 8 H. Ld. Cas. 268. 
 In that case Lord Cranworth, after commenting upon the insufficiency of 
 the test usually applied, viz., that participation in profits is a criterion of 
 partnership, went on to observe : " It is not strictly correct to say that 
 a partner's right to share in the profits makes him liable to the debts of 
 the trade. The correct mode of stating the proposition is to say that the 
 same thing which entitles him to the one makes him liable to the other, 
 namely, the fact that the trade has-been carried on in his behalf, i. e., that 
 he stood in the relation of principal towards the persons acting ostensibly 
 as the . traders, by whom the liabilities have been incurred, and under 
 whose management the profits had been made." A careful attention to 
 the rules as stated by Lords Cranworth and Wensleydale, in this case, will 
 help to solve the question of partnership or no partnership in very many 
 instances. See also, Bullen v. Sharp, L. R. 1 Com. Pleas 86, and the note 
 to Waugh v. Carver, 1 Smith's Lead. Cas. 1174 (6 Am. ed.). Practically, 
 the general rule is that participation in profits, qua profits, will constitute 
 a person a partner as to third parties : Motley v. Jones, 3 Ind. Ch. 144 ; 
 Turner v. Bissell, 14 Pick. 194 ; Simpson v. Feltz, 1 McCord h. 218 ; Pur-
 
 OF PARTNERSHIP. 475 
 
 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- 
 
 viance v. McClintee, 6 S. &R. 259 ; Dob . Halsey, 16 Johns. 34; Brown 
 v. Higginbotham, 5 Leigh 583 ; Bromley v. Elliott, 38 N. H. 301 ; Julio v. 
 Ingalls, 1 Allen 41 : Voorhees v. Jones, 5 Dutch. 270 : Goldsmith v. Ber- 
 thold, 24 How. 536 : Manhattan Brass Co. v. Sears, 45 N. Y. 797. But a 
 share in the profits, as a measure of compensation for services and labor, 
 does not render the party receiving the compensation a partner. There 
 must be an interest in the profits as profits: Waugh v. Carver (supra); 
 Ogden v. Astor, 4 Sandf. S. C. 311 ; Reed v. Murphy, 2 Greene (Iowa) 574; 
 Kerr v. Potter, 6 Gill 404 ; Potter v. Moses, 1 R. I. 430 ; Stocker v. Brock- 
 elbank, 3 M. & G. 250 ; Bull v. Schuberth, 2 Md. 38 ; Hodgman v. Smith, 
 13 Barb. 302; Pierson v. Steinmyer, 4 Rich. 389; Clarke v. Gilbert, 32 
 Barb. 576. And see Newmen v. Bean, 1 Foster 93 ; Dunham v. Rogers, 
 1 Penn. St. 255 ; Pattison v. Blanchard, 1 Selden 186 ; Merrick v. Gordon, 
 :!'> X. Y. 93 ; Radcliffe v. Rushworth, 33 Beav. 484; Parker v. Fergus, 43 
 111. 437 : Merwin p. Playford, 3 Rob. (X. Y.) 702 ; Conklin v. Barton, 43 
 Barb. (N. Y.) 435: Lentner v. Milliken, 47 111. 178; Edwards v. Tracy, 
 62 Penna. St. 374 ; but see Morgan v. Stearns, 41 Verm. 398. 
 
 A joint stock company is a partnership, the capital of which is divided 
 or agreed to be divided into shares, so as to be transferable without ex- 
 press consent of all the partners : Hedge & Horn's Appeal, 63 Penn. St. 
 273. 
 
 In England it is now provided by the Stat. 28 & 29 Viet. c. 86, that an 
 advance of money, on a contract to receive a share of the profits, is not to 
 constitute the lender a partner : and that the remuneration of agents, &c., 
 by shares of profits, shall not render them partners. 
 
 An association of persons for a special purpose, distinct from making 
 profits, is not a partnership : Caldecott v. Griffith, 8 Exch. 898 ; Bright v. 
 Hutton, 3 H. L. Cas. 341 ; Flemyng v. Hector, 2 M. & W. 172 ; Irvine v. 
 Forbes, 11 Barb. S. C. 587; Thomas . Ellmaker, 1 Pars. Eq. 98. See 
 also Pomeroy v. Sigerson, 22 Missouri 177 ; Wright v. Cumsty, 41 Penn. 
 St. 102 ; Fay v. Xoble, 7 Gushing 188 ; Parsons on Partnership 42, note (6). 
 
 There may be a partnership for dealing in real estate : Dalton City Co. 
 v. Dalton Manuf. Co., 33 Ga. 243. Therefore, land bought with partner- 
 ship money, for partnership purposes, and applied to those purposes, will 
 in equity be treated as a partnership fund : Clegett v. Kilbourne, 1 Black 
 (S. C.) 346 ; Wallis v. Freeman, 35 Verm. 44 ; Abbott's Appeal, 50 Penn. 
 St. 234 ; 3 Kent's Com. 37 ; Parsons on Partnership 369 ; infra, page 24'i, 
 note.
 
 476 ADAMS'S DOCTRINE OF EQUITY. 
 
 ners, the ultimate balance of which is the profit or loss of 
 the firm. And, therefore, before the interest of an indi- 
 vidual 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 ex- 
 clude this jurisdiction ; for it may happen that litigation 
 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 pre- 
 liminary to it ; or consists in the breach of a covenant or 
 [~*24-fn ^ an undertaking *to perform some specific act, 
 so that the decision is unconnected with the part- 
 nership account ; x or where a dissolution has already taken 
 place, and the balance of account has been struck, so that 
 further investigation is not requisite. But if it be neces- 
 sary to investigate the account, it cannot be done at law, 
 unless by the adoption of the action of account, the incon- 
 veniences of which have been already explained. (#) 2 
 
 (6) 3 Steph. Bl. 532; Smith's Merc. Law 38 ; Foster v. Allanson, 2 T. 
 R. 479 ; Jackson v. Stopherd, 4 Tyrw. 330 ; Elgie . Webster, 5 M. & W. 
 518 ; Brown v. Tapscott, 6 Id. 119. 
 
 1 Kinloch v. Hamlin, 2 Hill Ch. 19 ; Duncan v. Lyon, 3 Johns. Ch. 360 ; 
 Hunt v. Gookin, 6 Verm. 462. See Cross v. Cheshire, 7 Exch. 43. In 
 Addams v. Tutton, 39 Penn. St. 447, it was held that covenant would lie 
 for a breach of partnership articles by a wrongful dissolution, and by 
 wrongful acts tending to that dissolution. 
 
 1 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 ; Hamilton v. Hamilton, 18 Id. 20 ; Hal- 
 derman . Halderman, 1 Hempstead 557; see Morrow v. Riley, 15 Ala. 
 710 ; .Gridley v. Dole, 4 Comst. 486 ; Miller v. Andress, 13 Ga. 366 ; Knerr 
 v. Hoffman, 65 Penn. St. 126 ; and where an account stated, resulting in
 
 OF PARTNERSHIP. 477 
 
 If a dissolution, as well as an account, be sought, the 
 common law jurisdiction is altogether excluded. 1 
 
 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 distributed 
 among the partners, or the deficiency made good by con- 
 tribution.^) 
 
 There may of course be grounds for relief under general 
 equities, at the suit of one partner against another, inde- 
 pendently of this special equity for taking the account, 2 
 
 (c) Ex parte Ruffin, 6 Yes. 119 ; Ex parte Williams, 11 Id. 3. 
 
 such balance, is retained by a partner without objection, a promise 
 will be implied, as in other cases: Van Amringe r. Ellmaker, 4 Penn. 
 St. 281. 
 
 1 In matters of difficulty or controversy between partners it is now most 
 usual to resort to a Court of equity for their final adjudication and settle- 
 ment : Bracken f. Kennedy, 3 Scam. 558 ; Holyoke v. Mayo, 50 Maine 
 385: and see Raymond . Crane, 45 N. II. 201. It will entertain juris- 
 diction, although account or other action would lie between the parties : 
 Gillett v. Hall, 13 Conn. 426 ; Cunningham v. Littlefield, 1 Ed. Ch. 104. 
 And although one partner cannot bind the firm by deed : Donaldsons. 
 Kendall, 2 Ga. Decis. 227 : Xapier v. Catron, 2 Humph. 534 ; Dickinson v. 
 Legare, 1 Dessaus. 537; Skinner v. Dayton, 19 Johns. 513; Fisher v. 
 Tucker, 1 McCord's Ch. 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 part- 
 ners bound for it. See Gait v. Calland, 7 Leigh 594 : McNaughton r. 
 Partridge, 11 Ohio 223; Christian p. Ellis, 1 Gratt. 396; Anderson . 
 Tompkins, 1 Brock. 456 ; Kyle v. Roberts, 6 Leigh 495 ; James v. Bost- 
 wick, Wright 142. 
 
 3 A Court of equity may compel specific execution of a partnership con- 
 tract, and may restrain one partner from persisting in a course jeopardiz- 
 ing the rights of another, or depriving him of his due share in the direc-
 
 [*241] . 
 
 478 ADAMS'S DOCTRINE OF EQUITY. 
 
 e. g., for performance of covenants in the partnership 
 deed, for recovery of assets fraudulently withdrawn, for 
 an injunction against threatened misapplication of assets, 
 and the like ; and if the misconduct of a partner has been 
 knowingly abetted by a stranger, the abettor may be also 
 sued in equity, for the injured partners cannot sue him at 
 law, because the fraudulent co-partner must be joined as 
 a plaintiff in the action. 1 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 contemplates 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 busi- 
 ness ; for if a decree could be obtained for such an ac- 
 count, the result would fluctuate in each successive year, 
 and would only be settled when the partnership was at 
 an end. 2 The ordinary course is to pray that the part- 
 
 tion of the business : see Gillett v. Hall, 13 Conn. 426 ; Pirtle v. Penn, 3 
 Dana 248. 
 
 So where one of the parties to an agreement of partnership has been in- 
 duced to enter into it upon fraudulent representations, equity will inter- 
 fere and declare it void, except as against creditors : Hynes v. Stewart, 10 
 B. Monr. 429 ; Fog v. Johnstone, 27 Ala. 432. 
 
 1 Where the same person is a member of two distinct firms, one of those 
 firms cannot sue the other at law, even on an account stated, because one 
 cannot sue himself; the remedy is in equity: Calvit v. Markham, 3 How, 
 (Miss.) 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 evi- 
 dence in his own favor to the prejudice of others : Purdon's Digest, tit. 
 Partnership. See, also, for the construction of it, Hepburn v. Certs, 7 
 Watts 300; Pennock v. Swayne, 6 W. & S. 231; Tassey v. Church, Id. 
 465 ; Meconkey v. Rodgers, Bright. R. 450. 
 
 2 It has often been held that there can be no division of partnership pro-
 
 OF PARTNERSHIP. 479 
 
 nership may be dissolved, and the surplus assets distri- 
 buted ; but this practice has been relaxed in favor of 
 joint stock companies, and of other numerous partner- 
 ships, and bills have been sustained which asked more 
 limited relief, viz., that the assets of an abandoned or in- 
 solvent partnership might be collected and applied in 
 discharge of the debts, leaving questions of distribution 
 and contribution as between the partners entirely open 
 for future settlement, (d) 
 
 The first topic which occurs in examining this equity 
 i>. as to the circumstances which will cause or warrant a 
 dissolution. 
 
 A dissolution may be caused in various ways : first, 
 by mere effluxion of the time, or completion or extinc- 
 tion of the business for which the partnership was cre- 
 ated ; 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 
 
 (d) Goodman r. Whitcomb, 1 J. & W. 572 ; Marshall v. Colman, 2 Id. 
 266 ; Glassington r. Thwaites, 1 S. & S. 124 ; Loscombe . Russell, 4 
 Sim. 8 ; Wallworth v. Holt, 4 M. & C. 619 ; Richardson v. Hastings, 7 
 Bea. 301, 323 ; Apperly v. Page, 1 Ph. 779 ; Fairthorne r. Weston, 3 Hare 
 387 ; infra, Pleading, Parties. 
 
 perty until all the accounts of the partnership have been taken, and the 
 clear interest of each partner ascertained ; that the chancellor may, in a 
 proper case, dissolve the partnership, but cannot aid in carrying it on : 
 Baird v. Baird, 1 Dev. & Bat. 524 ; McRae v. McKenzie, 2 Id. 232 ; Cam- 
 blatt 0. Tupery, 2 La. Ann. 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. Barret, 
 1 Parsons' s Sel. Eq. Cas. 414. Equity will enjoin one partner from vio- 
 lating the rights of his copartner in partnership matters, although no dis- 
 solution of the partnership be contemplated : Marble Co. v. Ripley, 10 
 Wall. (U. S.) 339.
 
 480 ADAMS'S DOCTRINE OF EQUITY. 
 
 dissolved;^) 1 and thirdly, by the death or bankruptcy of 
 a partner, or by an execution against him, followed by 
 seizure and sale of his share. 2 And when a dissolution 
 
 (e] Peacock v. Peacock, 16 Ves. 49 ; Crawshay v. Maule, 1 Sw. 495, 508 ; 
 Featherstonhaugh .. Fenwick, 17 Ves. 298. 
 
 1 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. Day- 
 ton, 19 Johns. 538 ; Mason v. Connell, 1 Whart. 381 ; Sleinmer's Ap., 58 
 Penn. St. 168 ; sed vide Bishop v. Breckles, 1 Hoff. Ch. 534. A dissolu- 
 tion of a partnership, 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. And see Western Stage Co. v. Walker, 2 Clarke 
 504. 
 
 One partner may sell the whole of the partnership property, if the sale 
 be free from fraud on the part of the purchaser, and such sale dissolves 
 the partnership, although the term has not expired : Whitton v. Smith, 1 
 Freem. Ch. 231 ; Deckard v. Case, 5 Watts 22. The latter case differing 
 as to the effect of such sale ; sed vide Hewitt v. Sturdevant, 4 B. Monr. 
 453. 
 
 As to his power to make an assignment for the benefit of the firm cred- 
 itors, see McCullough v. Somerville, 8 Leigh 415 ; Harrison v. Sterry, 5 
 Cranch 289 ; Egberts v. AVood, 3 Paige 517 ; Robinson v. Crowder, 4 Mc- 
 Cord L. R. 519; Havens v. Hussey, 5 Paige 30 ; Hitchcock v. St. John, 1 
 Hoff. Ch. 511 ; Mills v. Argall, 6 Paige 577 ; Pearpoint v. Graham, 4 W. C. 
 C. R. 232 ; Graser v. Stellwagen, 25 N. Y. 315 ; Sheldon v. Smith, 28 Barb. 
 599; Ormsbee v. Davis, 5 R. I. 442: Cullum v. Bloodgood, 15 Ala. 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 assignment by one partner, 
 without the consent of the rest, where they are present, and actually en- 
 gaged in the business of partnership, was invalid ; and this is undoubtedly 
 the better and sounder opinion : Hook v. Stone, 34 Mo. 329 ; Welles v. 
 March, 30 N. Y. 344. JB Forkner 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. 13 ; National Bank 
 v. Sackett, 2 Daly (N. Y.) 395. 
 
 2 By the general rule of law, every partnership is dissolved by the death 
 of one of the partners, and the dissolution is so effectual, that want of
 
 OF PARTNERSHIP. 481 
 
 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 partner- 
 ship assets, as it shall appear on adjustment of 
 the partnership account, (y) 1 
 
 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. 2 The ordinary rule is that no 
 
 (/) Taylor v. Fields, 4 Ves. 396 ; Young v. Keighly, 15 Id. 557 ; Button 
 p. Morrison, 17 Id. 193 ; Re Wait, 1J. & W. 585 ; Habershon v. Blurton, 
 1 De G. & S. 121. 
 
 notice of it does not have the effect of making the estate of the deceased 
 partner liable to debts'contracted by the surviving partners, or for their 
 misconduct : Caldwell v. Stileman, 1 Rawle 212, 216 ; "Williamson v. Wil- 
 son, 1 Bland 418. But a partner may, by will, provide that the partner- 
 ship shall continue after his death, and if it be assented to by the surviving 
 partner, it becomes obligatory : Burwell . Mandeville, 2 Howard U. S. 
 560. And see Laughlin v. Lorenz's Admr., 48 Penn. St. 275 ; Davis v. 
 Christian, 15 Grattan 11. The surviving partner has a reasonable time to 
 close up the affairs : Tillotson . Tillotson, 34 Conn. 335 ; and he is not 
 entitled to compensation for so doing : Ibid. 
 
 1 As to dissolution by the seizure and sale of one partner's share, see 
 Moody . Payne, 2 Johns. Ch. 548 ; Place v. Sweetzer, 16 Ohio 142 ; Brew- 
 ster v. Hammet, 4 Conn. 540 ; Sitler v. Walker, 1 Freem. Ch. 77; Doner 
 v. Stauffer, 1 Penna. R. 198 ; Phillips v. Cook, 24 Wend. 389 ; Renton 
 v. Chaplain, 1 Stockt. 62. 
 
 1 A voluntary assignment, by one partner, of all his interest in the con- 
 cern, dissolves the partnership, although the articles provide that the part- 
 nership is to continue until two of the contracting parties shall demand a 
 dissolution : Marquand v^ $f . Y. Man. Co., 17 Johns. 525 ; Whitton v. 
 Smith, 1 Freem. Ch. 231 ; see, also, Mason v. Connell, 1 Whart. 381 ; Con. 
 well v. Sandidge, 5 Dana 213; Horton's App., 13 Penn. St. 67; Ormsbee 
 v. Davis, 5 R. I. 422. See, also, Coope v. Bowles, 42 Barb. (N. Y.) 
 87 ; Eden v. Williams, 36 111. 252. 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 dis- 
 solved by the act of God, by the act of the government, as, by a war be- 
 tween the countries of the partners, or by some of the members becoming 
 a body politic : The Cape Sable Go's Case, 3 Bland 674. 
 31
 
 482 ADAMS'S DOCTRINE OF EQUITY. 
 
 partner can sell or dispose of his share without the con- 
 currence of the rest. He may alien his interest in the 
 surplus to be ascertained by taking the partnership ac- 
 count, but he cannot substitute his alienee to the position 
 of a partner, nor give him any right to interfere in the 
 business. A right, however, to alien the share itself may 
 be, and in the case of 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, (ti) 
 
 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 ;(&') 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 
 terms ;(#)* if he is dealing fraudulently with the 
 
 (g) Young v. Keighley, 15 Ves. 557 ; Duvergier v. Fellows, 5 Bing. 248 ; 
 Blundell v. Windsor, 8 Sim. 601 ; Harrison v. Heathorn, 6 Scott N. R. 735 ; 
 12 Law- J. C. P. 282 ; Pinkett v. Wright, 2 Hare 120, 130. 
 
 (A) Joint Stock Companies' Acts, 7 Wm. 4 and 1 Viet. c. 73 ; 7 & 8 Viet. 
 c. 110 and 111 ; Companies' Clauses Consolidation Act, 8 & 9 Viet. c. 16 ; 
 3 Steph. Bl. 182 ; Joint Stock Banks' Acts, 7 Geo. 4, c. 46 ; and 1 and 2 
 Viet. c. 96 ; 5 & 6 Viet. c. 85 ; 7 & 8 Viet. c. 113 ; 3 Steph. Bl. 340. 
 
 (i) Beaumont v. Meredith, 3 Ves. & B. 180 : Clough v. Radcliffe, 1 De 
 G. & S. 164. 
 
 (k) Goodman v. Whitcomb, 1 J. & W. 569 ; Hale v. Hale, 4 Beav. 369 ; 
 Smith v. Jeyes, Id. 503 ; Waters v. Taylor, 15 Ves. 10; 2 Ves. & B. 299, 304. 
 
 1 Where a partnership is formed for a definite term, neither partner can,
 
 OF PARTNERSHIP. 483 
 
 business or assets of the partnership;^) 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 
 insanify, 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) 1 
 
 Assuming a dissolution to be proved or decreed, the 
 next topic for consideration is the mode of winding up 
 the concern. 
 
 The first step is, that the partnership debts should be 
 ascertained, and the assets applied in their discharge. 2 
 
 (I) Marshall v. Colman, 2 J. & W. 266. , 
 
 (m) Waters v. Taylor, 2 Ves. & B. 299, 303 ; Jones v. Noy, 2 M. & K. 
 125 ; Besch . Frolich, 1 Ph. 172. 
 
 during the term, file a bill for a dissolution merely on the ground that he 
 is dissatisfied, or that the partners quarrel : Henn v. Walsh, 2 Ed. Ch. 129. 
 But only little more is needed, and dissolution will be granted, where dis- 
 sension prevents all hope of advantage : Bishop v. Breckles, 1 Hoff. Ch. 
 534 ; Watney v. Wells, 30 Beav. 56 ; Stevens v. Yeatman, 19 Md. 480 ; 
 Seighortner v. Weissenborn, 20 N. J. Eq. 172 ; Meaher v. Cox, 37 Ala. 201. 
 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. 270 ; Gowan . Jeffries, 2 Ashmead 296 ; 
 Maude v. Rodes, 4 Dana 144; Story v. Moon, 8 Id. 226 ; s. c. 3 Id. 331 ; 
 Garretson v. Weaver, 3 Ed. Ch. 385. Breaches of articles of partnership 
 are not necessarily the foundation of a decree of dissolution : Anderson 
 . Anderson, 25 Beav. 190. 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 partnership, 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. 
 
 1 Leaf v. Coles, 1 De G., M. & G. 171. See s. c., Id. 417, as a proof of 
 the caution necessary in such cases : Rowlands v. Evans, 30 Beav. 302. 
 
 2 The rule, that co-partnership funds are to be applied in the first place
 
 484 ADAMS'S DOCTRINE OF EQUITY. 
 
 If the parties cannot agree on the intermediate manage- 
 ment, whilst the process of dissolution is going on, a re- 
 
 V /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 McCulloh v. 
 Dashiel, 1 Har. & Gill 96 ; Lucas v. Atwood, 2 Stewart 378 ; W T hite v. 
 Dougherty, 1 Mart. & Yerg. 409 ; Hubble v. Perrin, 3 Ham. 287 ; Topliff 
 . Vail, Harring. Ch. 340 ; Tuno . Trezevant, 2 Dessaus. 270 ; Woddrop v. 
 Price, 3 Id. 203 ; Deveau v. Fowler, 2 Paige 400 ; Innes v. Lansing, 7 Id. 
 583 ; Payne v. Matthews, 6 Id. 19 ; Rodiguez v. Heflernan, 5 Johns. Ch. 
 417 ; Simmons v. Tongue, 3 Bland 356 : Kirby v. Schoonmaker, 3 Barb. 
 Ch. 46 ; Brewster v. Hammet, 4 Conn. 540 ; Witter v. Richards, 10 Id. 37 ; 
 Wilder v. Keeler, 3 Paige 167 ; Murray v. Murray, 5 Johns. Ch. 60 ; Gil- 
 more v. N. A. Land Co., 1 Pet. C. C. 460 ; Morgan v. Skidmore, 55 Barb. 
 (N.Y.) 263. 
 
 The general rule was also expressly recognised in Murrill v. Neill, 8 
 How. U. S. 414 ; Muir . Leitch, 7 Barb, S. C. 341 ; Jarvis v. Brooks, 3 
 Foster, (N 1 . H.) 136 ; Crockett v. Grain, 33 N. H. 542 ; Fall River Whaling 
 Co. v. Borden, 10 Gush. 458 ; Converse v. McKee, 14 Texas 20 ; Talbot v. 
 Pierce, 14 B. Monr. 195 ; Inbusch v. Farwell, 1 Black (U. S.) 566 ; Hill v. 
 Beach, 1 Beas. 31 ; Linford v. Linford, 4 Dutch. 113 ; Crooker u. Crooker, 
 46 Maine 250 ; 52 Id. 267 ; Treadwell v. Brown, 41 N. H. 12 ; Matlack v. 
 James r 2 Beas. 126. 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 entitled to come upon the separate estate, whether by 
 execution at law, or where a fund is created for creditors by death or in- 
 solvency, and that equity would do no more than marshal the debts, so that 
 the joint creditors 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 Ga. 320 ; Emanuel v. Bird, 19 Ala. 596 ; Wardlaw v. Gray, 
 Hill's Ch. 644-653 ; Gadsden v. Carson, 9 Rich. Eq. 266 ; Reed v. Shepard- 
 son, 2 Verm. 120 ; Allen v. Wells, 22 Pick. 450 ; White v. Dougherty, 1 
 Mart. & Yerg. 309 ; Morrison v. Kurtz, 15 111. 193 ; Pahlman v. Graves, 
 26 Id. 407 ; Black's Appeal, 44 Penn. St. 503 (modifying the rule in Bell 
 v. Newman, 5 S. & R. 78 ) ; Houseal & Smith's Appeal, 45 Penn. St. 484 ; 
 though see Weyer v. Thornburgh, 15 Ind. 126. In Camp v. Grant, 21 Conn. 
 41, the court went even further, and held, that as partnership debts are, in 
 equity, joint and several, joint creditors might claim against the estate of
 
 OF PARTNERSHIP. ^ 485 
 
 ceiver may be appointed to conduct it. But the Court 
 cannot permanently carry on the business, and will not, 
 
 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 mar- 
 shalling, obviate their effect upon other creditors, as to the equitable assets, 
 if there be 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 applied to the exoneration of the separate estate. The case of in- 
 solvency or death of a surviving partner, stands on a different footing, be- 
 cause 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 to 
 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 un- 
 doubted. See in Pennsylvania, Doner v. Stauffer, 1 Penna. R. 198 ; Over- 
 holfs App., 12 Penn. St. 222 ; Deal v. Bogue, 20 Id. 233 ; Baker's App., 
 21 Id. 77 -, Snodgrass's App., 13 Id. 474. And, indeed, the case of An- 
 dress v. Miller, 15 Penn. St. 316, would seem to show a return to the en- 
 tire English doctrine. 
 
 This subject will be found discussed very fully in 3 Kent's Com. 65 ; 
 and in the note to Silk r. Prime, 2 Lead. Gas. Eq. 83, 3d Am. ed. e 
 
 Partnership property cannot be subjected to the separate debts of part- 
 ners, until all partnership debts are paid, including debts due from the 
 firm to the partners individually : Christian v. Ellis, 1 Gratt. 396 ; Buchan 
 v. Sumner, 2 Barb. Ch. 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 cred- 
 itors, 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 pro-
 
 486 ADAMS'S DOCTRINE OF EQUITY. 
 
 therefore, appoint a receiver, except with a view to get- 
 ting in the effects and finally winding up the concern, (n) 1 
 
 (n) Waters v. Taylor, 15 Ves. 10 ; 2 Ves. & B. 299 ; Goodman v. Whit- 
 combe, 1 J. & W. 589 ; Const v. Harris. T. & R. 496 : Hare v. Hale, 4 Beav. 
 
 portions 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 ; Potts v. Blackwell, 4 Jones Eq. 58. Hence this prefer- 
 ence of the joint stock creditors does not exist when the partnership is 
 such that the partners, as between themselves, can enforce no such right : 
 Rice v. Bernard, 20 Verm. 479. Or it may be terminated at any time by 
 the acts of the parties, as, e. g., by the sale of the stock in trade by one 
 partner to another : Parish v. Lewis, 1 Freem. Ch. 299 ; Robb v. Stevens, 
 1 Clarke Ch. 191 ; Waterman v. Hunt, 2 Rhode Island 298 ; Dc-ner v. 
 Stauffer, 1 Penn. St. 198. And this, if bond fide, whether the partnership 
 be solvent or not: Allen v. Centre Valley R. 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 ; Robb v. Mudge, 14 
 Grey 534; Sigler v. The Bank, 8 Ohio (N. S.) 511; White v. Parrish, 20 
 Tex. 688 ; McNutt v. Strayhorn. 39 Penn. St. 269. And this right does 
 not exist under & fieri facias levied after a dissolution : Cope's Appeal, 39 
 Penn. St. 287. 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. Ch. 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 execution of each part- 
 ner'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 Penna. 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 disposition by the part- 
 ners 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. Higgins, 7 
 Gill 265. Nor does it extend after dissolution and division of the assets : 
 Holmes r. Hawes, 8 Ired. Eq. 21. 
 
 1 The Court, generally, will not appoint a receiver on motion, unless it 
 a tisfactorily appears that the plaintiff is entitled to have the partnership
 
 OF PARTNERSHIP. 487 
 
 If, after applying the assets, there are still outstanding 
 liabilities, the partners must contribute in proportion to 
 their shares ; if, on the other hand, a surplus remains, it 
 will be distributed among them in like proportion. 
 
 369 ; Smith v. Jeyes, 4 Id. 503 ; infra, Receiver. [See Wolbert v. Harris, 
 3 Halst. Ch. 605.] 
 
 dissolved, and its affairs closed up : Garretson v. Weaver, 3 Ed. Ch. 385 ; 
 Law v. Ford, 2 Paige 310; Martin v. A r an Schaick, 4 Id. 479; Smith v. 
 Lowe, 1 Ed. Ch. 33 ; Walker r. House, 4 Md. Ch. 40 ; Renton v. Chap- 
 lain. 1 Stock. 62 ; Cox v. Peters, 2 Beas. 39 ; see, also, Sloan . Moore, 37 
 Penn. St. 222 ; a case in which a receiver was appointed. Nor without 
 notice to those interested ; but there are exceptions, as where irreparable 
 injury would arise from delay : Williamson v. Wilson, 1 Bland Ch. 418 ; 
 Gowan v. Jeffries, 2 Ashm. 296; Holden v. McMakin, 1 Pars. Sel. Eq. 
 Gas. 284: Hall r. Hall, 3 Macn. & G. 79. So where irreparable injury 
 might ensue from the defendant's acts, a receiver may be appointed 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 part- 
 ners 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 ob- 
 ject of the appointment of the receiver being to protect the assets till the 
 determination of the respective rights : Blakeny . 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 dissolution is intended: Drury v. Roberts, 2 Md. Ch. 157; 
 Speights P. Peters, 9 Gill 472. So where, after dissolution, one partner 
 carries on business with the partnership effects on his own account : 
 Speights v. Peters, ut sup. ; Walker v. House, 4 Md. 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 application 
 of the representatives 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 concern, a receiver 
 is of course, as between the representatives : AValker v. House, 4 Md. Ch. 
 40. Where one partner is bankrupt, the continuing partner is entitled to 
 a receiver: Freeland v. Stansfield, 16 Jur. 792; Randall r. Morrell, 2 
 Green (N. J.) 343.
 
 488 ADAMS'S DOCTRINE OF EQUITY. 
 
 The proportions in which the partners are respectively 
 entitled or liable are determined by the original terms of 
 their contract ; or in the absence of any express declara- 
 tion on the point, -by a reasonable presumption from the 
 circumstances of the case.(o) 1 If, subsequently to the 
 * coinmencemen t f the business, advances had 
 been made to the firm, or moneys drawn out by 
 any partner, beyond his due proportion, their shares in 
 the distribution will be modified accordingly. If such 
 sums have been advanced or received by way of increase 
 or diminution of capital, they will introduce a new ele- 
 ment in the division of profits ; if by way of loan to or 
 from the partnership, they will not affect the division of 
 profits, but will be dealt with on the footing of loans in 
 the final settlement of the account. The distinction, 
 however, is confined to the account as between the part- 
 ners 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 mem- 
 ber, so that his advance shall be treated as an increase of 
 the partnership fund, and not as an independent debt. 2 
 The consequence of this doctrine is, that no partner can, 
 either by making advances to the firm or by any other 
 course of dealing, entitle himself to a lien on the partner- 
 
 (o) Thompson v. Williamson, 7 Bli. 432. 
 
 1 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. Colmeshil, 1 J. J. Marsh. 506 ; Towner v. Lane, 
 9 Leigh 262. 
 
 2 See Logan v. Bond, 13 Ga. 196. A co-partner 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 specifi- 
 cally, so as to give the former co-partnership a priority over the other 
 creditors of the bankrupt house : McCauly v. McFarlane, 2 Dessaus. 239.
 
 OF PARTNERSHIP. 489 
 
 ship assets, or on the shares of his copartners therein, ex- 
 cept in subordination to the partnership creditors. And 
 e converse, 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 indi- 
 vidual. If it has been fraudulently abstracted, the case 
 is different, and the other partners, or in the event of 
 bankruptcy, the joint creditors may reclaim it for the part- 
 nership.^) 
 
 In order to effectuate the realization of assets, the pay- 
 ment of debts, and the distribution of surplus, the Court 
 has an authority over partnership estate which does not 
 exist in other cases of common ownership, that of direct- 
 ing its sale and conversion into money. 1 And this juris- 
 diction may be exercised either by the same decree which 
 directs a dissolution, or, if dissolution has already taken 
 place, by *an interlocutory order, (q) The effect [-#04 en 
 of the equity to insist on such a sale, where real 
 estate is held by the partnership, and a dissolution has 
 been caused loy death, is to raise a question of equitable 
 conversion between the real and personal representatives 
 of the deceased partner. The legal ownership will of 
 
 (p) Richardson v. Bank of England, 4 M. & C. 165 ; Pinkett . Wright, 
 2 Hare 129 : Ex parte Ruffife, 6 Ves. 119 : Ex parte Yonge, 3 Ves. & B. 31. 
 
 (q) Crawshay v. Maule, 1 Sw. 495. 523 ; Featherstonhaugh . Fenwick, 
 17 Ves. 298 ; Cook e. Collingridge, Jac. 607 ; Simmons . Leonard, 3 Hare 
 581. 
 
 1 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. 11; Dickinson c. Dickinson, 29 Id. 600. See also, to this point. 
 Evans v. Evans, 9 Paige 178 ; Dougherty . Van Nostrand, 1 Hoff. Ch. 68 ; 
 Conwell v. Sandidge. 8 Dana 278 ; Mayer v. Clark, 40 Ala. 259.
 
 490 ADAMS'S DOCTRINE OF EQUITY. 
 
 course devolve according to the limitations in the convey- 
 ance; but the equitable interest of the deceased partner 
 in the surplus, so far as it is referable to the real portion 
 of th,e assets, will- devolve on his heir or his executor, ac- 
 cording as the equity for sale is confined to satisfaction of 
 the liabilities, or extends to distribution among the part- 
 ners. 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 per- 
 sonal estate is absolute ; (s) thirdly, that if it be not pur- 
 chased with partnership funds, but being the property of 
 one or more partners, be devoted, either partially or en- 
 tirely, to the partnership business, the extent of conver- 
 sion depends on the intention. And it must be determined 
 from the circumstances of the particular case whether that 
 intention was to convert it in toto, both as to the liability 
 for debts, and also as to the destination of the surplus, or 
 to confine it to subservience to the business during its 
 continuance, and to a liability for the debts after dissolu- 
 tion ;(#) fourthly, that if though purchased out of the 
 partnership fund, it has not been purchased for partner- 
 ship 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 partners as their 
 J separate property, according to its unconverted 
 character ; (u) and lastly, that the conversion, when it 
 
 (r) Ripley v. Waterworth, 7 Ves. 425. 
 
 (V) Phillips v. Phillips, 1 M. & K. 649 ; Broom v. Broom, 3 M. & K. 
 443 ; Bligh v. Brent, 2 Y. & C. 268 ; Hough ton v. Houghton, 11 Sim. 491 ; 
 [Darby v. Darby, 25 L. J. Ch. 371.] 
 
 (t) Balmainv. Shore, 9 Ves. 500; Randall v. Randall, 7 Sim. 271 ; Cook- 
 son v. Cookson r 8 Sim. 529. 
 
 (u) Bell v. Phyn, 7 Ves. 453.
 
 OF PARTNERSHIP. 491 
 
 operates at all, operates in favor of the personal represen- 
 tative alone, and does not create a liability to probate duty 
 in favor of the Crown, which is a stranger to the convert- 
 ing equity, (v) 1 
 
 (v) distance v. Bradshaw, 4 Hare 315. 
 
 1 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 co- 
 partnership, 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 per- 
 sonal representatives and the heirs at law of a deceased partner, his share 
 of the surplus of the real estate which remains after paying the debts of 
 the partnership, and adjusting the claims of the different members of the 
 firm, as between themselves, is to be considered and treated as real estate : 
 Buchan v. Sumner, 2 Barb. Ch. 165; Sigourney v. Munn, 7 Conn. 11 ; 
 Winslow r. Chiffelle, 1 Harp. Eq. 25 ; Thayer t>. Lane, Walker's Eq. 200 ; 
 Dyer v. Clark. 5 Mete. 562; Greene v. Greene, 1 Ham. 535; Marvin v. 
 Trumbull, Wright 386 ; Burnside v. Merrick, 4 Mete. 541 ; Summer . 
 Hampson. 8 Ohio 364 ; Rice v. Barnard, 20 Verm. 479 ; Smith . Tarlton, 
 2 Barb. Ch. 336; Baird v. Baird, 1 Dev. & Batt. Eq. 524; Hoxie,. Carr, 
 1 Sumn. 173 ; Overholfs Appeal, 12 Penn. St. 222 ; Smith v. Jones, 12 
 Maine 337 ; Baldwin v. Johnson, Saxton 441 : Richardson v. Wyatt, 2 Des- 
 saus. 471 ; Woolridge v. Wilkins, 3 How. (Miss.) 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 Sand. S. C. 284 ; Talbot v. Pierce, 14 B Monr. 195; see 
 Lang v. Waring, 17 Ala. 145 : Andrew's Heir v. Brown's Adm., 21 Ala. 437; 
 Wilcoxr. Wilcox, 13 Allen (Mass.) 252 : Bryant . Hunter, 6 Bush (Ky.) 75 ; 
 Cornwall r. Cornwall, Id. 369 ; Nat. Bank of Metropolis v. Sprague, 20 N. J. 
 Eq. 13 ; Uhler r. Simple, 20 N. J. Eq. 288. But a purchaser without notice, 
 of partnership real estate, takes discharged of the debts : Buck v. Winn, 11 
 B. Monr. 320 ; Boyee r. Coster, 4 Strob. Eq. 30. In Peck . 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 fypund 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
 
 492 ADAMS'S DOCTRINE OF EQUITY. 
 
 If after a partnership has been dissolved by death or 
 bankruptcy, the assets are used by the surviving or sol- 
 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. 1 It does not, however, follow, that in taking 
 
 eave it, ultra those purposes, unconverted. 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 part- 
 nership deaths, will pass the equitable estate to the purchaser, and he may 
 compel a conveyance by .the heir : Andrews v. Brown, 21 Ala. 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 es- 
 tate is in one partner only, and he dies, his heirs will be considered as 
 trustees for the survivor : Pugh v. Currie, 5 Ala. 446. See also Smith v. 
 Ramsey, 1 Gilm. 373. And a sale thereof, in a suit to settle the partner- 
 ship 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 ; Deloney v. Hutcheson, 2 Rand. 183 ; Smith 
 v. Jackson, 2 Ed. Ch. 28 ; Hart . 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 . 
 Herrfln, 4 Munf. 316; Ridgway's App., 15 Penn. St.4-77. See also, Ware 
 v. Owens, 42 Ala. 212 ; Pecot v. Armelin, 21 La. Ann. 667. 
 
 1 If a partnership business, after its termination by death or otherwise, 
 is continued by any portion of the associates with the capital or appliances 
 of the firm, all profits derived from such continued business are part of the 
 joint estate, and are to be accounted for to the other .partners or their re- 
 presentatives : Waring v. Cram, 1 Pars. Sel. Eq. Gas. 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 state- 
 ment of all the transactions of the partnership, and to dispose of the pro- 
 perty at the best advantage. He cannot take the property at an estimated 
 value, without the consent of the representatives of the deceased partner, 
 and if he does, he will be accountable to them for the profits made there- 
 by : 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.
 
 OF PARTNERSHIP. 493 
 
 the subsequent account, the division of the profits is to be 
 the same as if the partner had not died or become bank- 
 rupt, or is to be determined by any other specific rule ; 
 but the decision will be guided by the circumstances of 
 the business, to be ascertained by inquiry under the direc- 
 tion 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 respect to the mere good-will 
 of a commercial partnership, where such good-will is un- 
 connected 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 con- 
 sidered on the one hand that such good-will belongs ex- 
 clusively to the survivor, and on the other, that it must 
 
 (ic) Crawshay v. Collins, 15 Ves. 218; Brown v. De Tastet, Jac. 284; 
 Cook v. Collingride, Jac. 607 ; Wedderburn v. Wedderburn, 2 K. 772 ; 4 
 M. & C. 41 ; Willet v. Blanford, 1 Hare 253. 
 
 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 Exch. 164, it h*^ been held, that partnership chattels, on the 
 death of one, do not survive to the remaining partners ; and that they have 
 no power to dispose of them by sale or mortgage in satisfaction 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. 37 ; Am. note to 
 Buckley v. Barber, ut supr. : and would be likely to produce no little diffi- 
 culty in the winding up of partnerships in such cases. It would rather 
 seem, that as the exception of jus accrescendi inter mercatores locum non 
 habet, was introduced for the benefit of trade, its operation should be con- 
 trolled for the same reason.
 
 494 ADAMS'S DOCTRINE OF EQUITY. 
 
 be treated as a portion of the partnership assets, so as to 
 entitle the executors of a deceased partner to a share of 
 profits, (x) x 
 
 f*2471 to the general jurisdiction over 
 
 partnership, there is also a jurisdiction over mines 
 and collieries held by several persons as co-owners, on the 
 ground of what may be termed a quasi partnership. It 
 often happens that such co-owners haA^e, by an agreement 
 expressly made or deduced by implication from their acts, 
 formed themselves into a trading partnership, holding the 
 mines as a portion of its assets. When this is the case 
 the ordinary jurisdiction over partnership will be inciden- 
 tal to their agreement. But it may also happen that no 
 partnership has been formed, and that the parties have 
 merely concurred in working their mines as tenants in 
 common. In this case the jurisdiction over partnerships 
 will not attach; and if it were an ordinary instance of 
 
 () Crawshayt?. Collins, 15 Ves. 218, 227; Cruttwell v. Lye, 17 Id. 336; 
 Farr v. Pearce, 3 Mad. 74 ; Lewis v. Langdon, 7 Sim. 421 ; Willet v. Blant- 
 ford, 1 Hare 253, 271. 
 
 1 The good-will of a business built up by a copartnership is an important 
 and valuable interest, which the law recognises and will protect: Williams 
 0. Wilson, 4 Sandf. Ch. 379. And upon a dissolution it must be sold ; it 
 does not survive : Dougherty v. Van Nostrand, 1 Iloff. Ch. 68. The good- 
 will (consisting of the subscription list, &c.) of a newspaper is partner- 
 ship 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 me- 
 chanical appliances of the establishment. Case of the Saturday Courier, 
 Holden's Admr. v. McMakin, 1 Parsons' Sel. Eq. Gas. 270. 
 
 The good-will is distinct from the profits of a business ; although in de- 
 termining 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 . Boys, 27 L. J. Ch. 714. In this case it was considered 
 that there could be no such thing as the good-will of a business such as 
 that of a solicitor, which is dependent principally on a confidence in the 
 professional skill and integrity of a particular person.
 
 OF PARTNERSHIP. 495 
 
 tenancy in common, there would be no jurisdiction to in- 
 terfere 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 dif- 
 ferent with respect to mines j 1 for the working of them has 
 always been considered as a species of trade ; and if each 
 owner were to deal separately with his separate share, 
 and to have a separate set of miners going down the shaft, 
 it would be practically impossible to work the mine at all. 
 
 1 In Roberts v. Eberhart, 1 Kay 148, however, 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 view- 
 ing 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 part- 
 nership 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 continue 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 evi- 
 dence that the whole property was intended to be used as a partnership 
 concern: and, therefore, where any disagreement arose, any of the part- 
 ners 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 dissolu- 
 tion and winding up of the concern, and for 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 cooperate 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. Where persons 
 are engaged in working a mining claim, and share the profit and loss, 
 they are partners, although there is no express stipulation for such com- 
 munion of loss and profit : Duryea . Burt, 28 Cal. 569. See also, as to 
 this subject, Grubb's Appeal, 66 Penn. St. 117.
 
 496 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 
 Court grants an injunction against trespass, and allows 
 suits for the mesne profits of a mine or colliery, if it 
 appears from the peculiar character of the property, 
 coupled with the general circumstances of the case, that 
 the remedy would be impracticable at law.(^) 
 
 (y) Crawshay v. Maule, 1 Sw. 495, 518, 523 ; Jeffreys v. Smith, 1J. & 
 W. 298 ; Fereday v. Wightwick, 1 R. & M. 45 ; Bentley v. Bates, 4 Y. & C. 
 182 ; Vice v. Thomas, Id. 538.
 
 OF TESTAMENTARY ASSETS. 497 
 
 *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 pur- 
 pose 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. 1 
 
 1 In cases of fraud, equity has a concurrent jurisdiction with a Court of 
 law, except in the case of a will charged to have been obtained through 
 fraud. If it be a devise of real estate, it is 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 of the proper Court, and relief be decreed 
 according to the event: Gaines et ux. v. Chew et al., 2 How. U. S. 619, 
 645 ; Coltonp. Ross, 2 Paige 396 ; Hamberlin v. Terry, 7 How. (Miss.) 143 ; 
 Cowden . Cowden, 2 Id. 806 ; Ewell v. Tidwell, 20 Ark. 136 ; Blue v. Pat- 
 terson, 1 Dev. & Batt. Ch. 457 ; Lyne v. Guardian, 1 Miss. 410 ; Van Alst 
 v. Hunter, 5 Johns. Ch. 148 ; Hunt v. Hamilton, 9 Dana 90 ; Muir . Trus- 
 tees, 3 Barb. Ch. 477 ; McDowall . Peyton, 2 Dessaus. 313 ; Burrow . 
 Ragland, 6 Humph. 481 5 Hunter's Will, 6 Ohio 499 ; Gould . Gould, 3 
 Story 516 ; Watson . Bofliwell, 11 Ala. 653 ; Adams v. Adams, 22 Verm. 
 50. It has been generally held, however, that equity has jurisdiction in 
 the case of a lost, suppressed 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 the disappointed devisee : Allison v. Allison, 7 Dana 94 ; 
 Bailey . 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 Trustees 151 ; Legare v. Ashe, 1 Bay (S. C.) 464. Contra, Morningstar 
 v. Selby, 15 Ohio 345, and Slade v. Street, 27 Ga. 17, where the jurisdic- 
 tion was held to be exclusively in the Probate Courts. In Gaines v. Chew, 
 32
 
 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 Ecclesias- 
 tical 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. 1 Or 
 
 2 How. U. S. 645, the question was raised, but not decided, the Court 
 holding the complainant entitled at least to discovery. 
 
 1 In Allen v. McPherson, 1 H. Lords Gas. 101, 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, substituting others of 
 a trifling amount, and it was held that the matter was exclusively within 
 the jurisdiction of the Ecclesiastical Courts. In a recent case, Hindson 
 v. Weatherill, 1 Sm. & G. 604, 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 considered the jurisdiction of equity 
 in such cases unquestionable, notwithstanding the decision in Allen v. 
 McPherson. See also the remarks in Dimes v. Steinberg, 2 Sm. & Giff. 
 75 ; Morgan v. Annis, 3 De G. & Sm. 461. On appeal, the case of Hindson 
 v. Weatherill, was reversed on another point (5 De G., M. & G. 301) ; but 
 L. J. Turner took occasion to express very strong doubts, whether such a 
 bill were within the jurisdiction of equity at all. The question, however, 
 of the validity of the execution of a power of appointment over personalty 
 by will, has been held to stand on a different footing from that of ordinary
 
 OF TESTAMENTARY ASSETS. 99 
 
 if it be practised, not in reference to the will itself, but 
 to its subsequent establishment by the Ecclesiastical 
 Court, e. g., by fraudulently obtaining the consent of the 
 next of kin, the executor *may be decreed v to 
 consent to a revocation of the probate. But if 
 the fraud were practised on the testator in obtaining the 
 will, so that the contest really is whether the will ought 
 to be proved, the proper course is to oppose the grant of 
 probate, and there appears to be no jurisdiction in equity 
 to relieve, (a) 
 
 The validity of a will of real estate, and of the conse- 
 quent 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 pos- 
 session, seeks to set it aside, their respective modes of 
 
 (a) Gingell v. Home, 9 Sim. 539 ; Walsh v. Gladstone, 1 Ph. 294 ; Allen 
 c. McPherson, 1 Ph. 133 ; 1 House of Lords Cases 191. 
 
 testamentary dispositions, 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 G. 
 & Sm. 461. It appears to be settled in 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 P. Steinberg, 2 Sm. & Giff. 75. Without some such qualifi- 
 cation, 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 peculiarly necessary in the 
 case of a will obtained by fraud ; while it is generally beyond the scope 
 of the procedure of the Ecclesiastical or Probate Courts. See also, Gaines 
 v. Chew, 2 How. U. S. 619, and Story's Eq., | 184, note. 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 . McKee, 3 
 Penn. St. 496 ; s. c. 6 Id. 428 ; Jenkins . Eldredge, 3 Story 181 ; Howell 
 t. Baker, 4 Johns. Ch. 118; Hoge v. Hoge, 1 Watts 213 ; Miller . Pearce, 
 W. & S. 97 ; Gaither v. Gaither, 3 Md. Ch. 158.
 
 500 ADAMS'S DOCTRINE OF EQUITY. 
 
 doing so are by ejectment at law. If there be outstand- 
 ing terms or other legal impediment, they may respect- 
 ively come into equity to have them removed. 1 If either 
 party, being in possession, fears that his possession may 
 be subsequently disturbed, he may perpetuate the testi- 
 mony on a proper bill ; or if, after a satisfactory verdict 
 and judgment, he is harassed by repeated ejectments, he 
 may have an injunction to restrain them on a bill of 
 peace. But neither party can resort to the Court of 
 Chancery as a tribunal for the trial of the will. If, how- 
 ever, there be a trust to perform or assets to administer, 
 so that the will is drawn within the cognisance 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. 2 By the old practice it was 
 
 1 Where the heir out of possession seeks to set aside a will, and an im- 
 pediment exists as to part, as r 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. 
 
 2 The law, as stated in the text, if it ever had a solid foundation, has 
 been entirely overthrown in England, by the recent decision in Boyse v. 
 Rossborough, 3 De G., M. &G. 817 ; 18 Jur. 205 ; affirming s. c. 1 Kay 71 ; 
 and affirmed in the House of Lords, in Colclough v. Boyse, 6 H. Lds. Cas. 
 1 ; in which it was held that the Court has jurisdiction to establish a will 
 of lands, as against the heir at law out of possession, at the suit of a legal 
 devisee ; though the estate of the latter be unaffected by a trust, and, 
 though there be no other ground for the intervention of equity, than for 
 the speedy determination of the question. It was shown that such had 
 been the 'uniform doctrine of chancery, from the earliest times. The ob- 
 ject of such a bill is to compel the heir 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 devisee might be subject to serious difficulty 
 in making title, by adverse claims of the heir, though the latter, neverthe- 
 less, did not choose to subject them, at the time, to the test of an eject- 
 ment. 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
 
 OF TESTAMENTARY ASSETS. 501 
 
 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 demand- 
 able 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 
 
 r*250T 
 
 will by examining every attesting witness who L 
 
 is capable of being produced, (b) 
 
 Assuming the right of a personal or real representative 
 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 intestate, origi- 
 nating in the inefficacy of the ordinary tribunals. 1 
 
 (6) Kerrich . Bransby, 7 B. P. C. 437 ; Pemberton . Pemberton, 13 
 Ves. 290, 297 ; Bootle . Blundell, 19 Id. 494 ; 31 Order of Aug. 1841 ; 
 Tatham . Wright, 2 R. & M. 1 ; Man c. Ricketta, 7 Beav. 93. 
 
 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 Eng- 
 land, 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 validity of the will. 
 
 1 In most of the United states the jurisdiction over the administration 
 of the estates of decedents is placed in the hands of special tribunals, enti- 
 tled Courts of Probate, Surrogate, or Orphans' Courts, which, in general, 
 possess the combined powers of the Court of Chancery, and the Ecclesiasti- 
 cal Courts in England upon the subject. Proper means are provided to 
 compel the executors and administrators to collect the assets, to settle pro- 
 per accounts, and to satisfy the claims of creditors, legatees, and distribu- 
 tees. 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 becomes unavoidable. See
 
 502 ADAMS'S DOCTRINE OF EQUITY. 
 
 The first difficulty which calls for equitable aid is that 
 of compelling the executor or administrator to get in the 
 assets. With respect to any assets which he has actually 
 received, there are means, though not effectual ones, for 
 making him account. But if he neglects or refuses to 
 get in the assets, the Court of Chancery alone can enforce 
 collection, (c) 
 
 With respect to assets actually received, the 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 
 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, 
 
 (c) Pearse v. Hewitt, 7 Sim. 471. 
 
 (d) Deeks v. Strutt, 5 T. 690 ; Jones v. Tanner, 9 B. & C. 542. 
 
 Pharis v. Leachman, 20 Ala. 662. Thus a bill may be filed by a creditor, 
 to subject real or personal property, fraudulently disposed of by the dece- 
 dent 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 exe- 
 cutor have been exhausted: Ledyard v. Johnston, 16 Ala. 548. Or where 
 the executor is insolvent or irresponsible : Ragsdale v. Holmes, 1 S. C. 91. 
 In many of the states, indeed, the ordinary creditors' bills are still enter- 
 tained. See Story Eq. \ 543. In Gould v. Hayes, 19 Ala. 438, it was held, 
 that the original jurisdiction of equity, is not affected by the statutory 
 jurisdiction conferred on the Orphans' Court and similar tribunals, except 
 where there are prohibitory or restrictive words. See also Freeland v. 
 Dazey, 25 111. 294. 
 
 1 A legacy cannot be legally reduced into possession by the legatee, with- 
 out the consent of the executor ; but that need not be expressly proved ;
 
 OF TESTAMENTARY ASSETS. 503 
 
 In the Ecclesiastical Court any creditor or legatee, or 
 other person having an interest may compel the executor 
 or administrator to deliver an inventory on oath. A cred- 
 itor, 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 
 
 r 2sn 
 
 Courts of law. A legatee or next of kin may dis- L 
 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 somtimes said that an executor holds the 
 assets in the character of a trustee, and that the jurisdic- 
 tion attaches on the existence of a trust. This, however, 
 does not seem to be strictly accurate. It is true that in 
 one sense an executor may be called a trustee, as any 
 man may be so called who is bound to apply property for 
 the benefit of others; but he is not a trustee in the tech- 
 nical sense. It is his duty to pay the creditors and lega- 
 tees out of the assets, and he is personally liable if he 
 neglects to do so. But there is no trust affecting the as- 
 sets themselves. He may dispose of them to a purchaser 
 in the absence of actual fraud, without affecting him with 
 a trust by notice; 1 he may sustain or defend a suit in 
 
 it may be inferred from circumstances, though the legatee is himself the 
 executor : Chester v. Greej, 5 Humph. 26: Cook v. Burton, 5 Bush (Ky.) 
 64. 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. Ch. 445. 
 
 1 See, to the same effect, Field v. Schieffelin, 7 Johns. Ch. 155 ; Hertell 
 r. Bogert, 9 Paige 57 ; Tyrrell v. Morris, 1 Dev. & Batt. Eq. 559 ; Bond c. 
 Ziegler, 1 Kelly 324 ; Miles t>. Durnford, 1 De G., M. & G. 64 ; Haynes 
 r. Forshaw, 17 Jur. 930; though in some of the United States, an adminis- 
 trator being required to sell at public sale, it is held that a private sale 
 passes no title : Fambro . Gantt, 12 Ala. 305 ; Baines v. McGee, 1 Sm. & 
 M. 208 ; Saxon r. Barksdale, 4 Dessaus. 526 ; but see Bond v. Ziegler, ut
 
 504 ADAMS'S DOCTRINE OF EQUITY. 
 
 equity without joining the creditors or legatees as parties; 
 if he neglect to invest a legacy he will not, like an ordi- 
 nary trustee, be liable for loss occasioned by the delay, or 
 for any increased value, which if sooner invested, the 
 legacy would have borne. And it is not until the debts 
 and legacies are paid, and the residue ascertained and ap- 
 propriated, or until some legacy has been set apart from 
 the general fund, that his representative character ceases, 
 and he becomes a trustee of such residue or appropriated 
 legacy, and is subject, in respect of it, to the ordinary 
 rules respecting trust property, (e) The position of the 
 heir or devisee is very similar to that of the executor or 
 administrator. He is not technically a trustee for cred- 
 
 (e) Byrchall v. Bradford, 6 Mad. 13, 235; Phillipo v. Mannings, 2 M. & 
 C. 309 ; Willmott v. Jenkins, 1 Beav. 401 ; Say v. Creed, 3 Hare 455. 
 
 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 u. Lasnier, 9 Cowen 320; 
 Williamson v. Branch Bank, 7 Ala. 906; Parker v. Gilliam, 10 Yerg. 394; 
 Garnet . 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 ; 
 Williamson v. Morton, 2 Md. Ch. 94 ; Patterson v. Patterson, 63 N. C. 322. 
 At law, actual collusion is necessary, but equity regards the whole trans- 
 action : Williamson u. 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. Schieffelin ; Williams v. Branch Bank ; William- 
 son v. Morton ; Dodson v. Simpson, 2 Rand. 294. But a pledge for a con- 
 temporaneous advance in good faith has been held within the general 
 rule : Tyrrell v. Morris, 1 Dev. & Bat. Eq. 559 ; see Petrie v. Clark ; Miles 
 . Durnford ; Ashton v. The Atlantic Bank, 3 Allen 217. 
 
 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, applies 
 only to personal estate: Brush v. Ware, 15 Pet. 93.
 
 OF TESTAMENTARY ASSETS. 505 
 
 itors, 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 enforce its collection in the same 
 
 In exercising the jurisdiction to administer assets, all 
 such assets as would be recognised at law are termed legal 
 assets, and are administered in conformity with legal rules, 
 by giving priority 1 to debts in order of degree j 1 so that 
 debts of a higher degree are discharged before those of a 
 lower ; and debts of equal degree are discharged pari 
 passu, subject to the executor's right of retaining any debt 
 due to himself in preference to other creditors of the same 
 degree. The priority of debts is according to the follow- 
 ing 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 subsequent date ; 2. Certain specific 
 debts which are by particular statutes to be preferred ; ( g] 
 3. Debts by judgment or decree, and immediately after 
 them debts by recognisance of statute; 4. Debts by spe- 
 cialty, 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, bond fide owing for valuable con- 
 sideration ;(/0 2 5. Debts on simple contract, as 'on bills or 
 
 (/) Burroughs v. Elton, 4! Ves. 29. 
 
 (g) 2 Wins. on Ex'rs. 723. (A) Lady Cox's Case, 3 P. Wms. 339. 
 
 1 When the assets are legal, Chancery follows the rules of law, in order 
 to prevent confusion in the administration of the estate : Moses r. Murga- 
 troyd, 1 Johns. Ch. 119; Atkinson . Gray, 18 Jur. 283. Especially will 
 priorities of liens be regarded ; judgment creditors are entitled in equi.y 
 to their legal priority in payment out of the legal assets. See Purdy v. 
 Doyle, 1 Paige Ch. 558 ; Pascalis v. Canfield, 1 Ed. Ch. 201 ; also Thompson 
 r. Brown, 4 Johns. Ch. 619 : and the remarks upon it in Wilder v. Keeler, 
 3 Paige 107 : Averill r. Loucks, 6 Barb. S. C. 470. 
 
 2 The rule which entitles a specialty creditor to preferences over legal as-
 
 506 ADAMS'S DOCTRINE OF EQUITY. 
 
 notes and agreements not under seal, on verbal promises, 
 and on promises implied by law. 
 
 There are also other assets, recognised in equity alone, 
 which are termed Equitable Assets, and are distributed 
 among the creditors pari passu, without regard to the 
 quality of their debts. 
 
 Legal assets may be defined as " those portions of the 
 property of a deceased person of which his executor or 
 heir may gain possession, and in respect whereof he may 
 be made chargeable, by the process of the ordinary tri- 
 bunals, and without the necessity of equitable interfer- 
 ence." 1 They consist first of the personal estate, to which 
 por o-i the executor *or administrator is entitled by vir- 
 tue of his office ; and secondly, of the real estate 
 descended or devised, except where the devise is for pay- 
 ment of debts ; a devise of this latter kind rendering the 
 estate, as we shall hereafter seej.equitable instead of legal 
 assets. 
 
 sets, 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 ex- 
 clusion of simple contract creditors, if necessary : Atkinson v. Grey, 18 
 Jur. 283. 
 
 1 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 Sm. 
 & G. 271 ; see Story Eq., s. 551 ; see also, Southwestern K.. R. v. Thomason, 
 40 Ga. 408 ; Vaughan . Deloatch, 65 N. C. 378. 
 
 The distinction between legal and equitable assets was well stated by 
 Vice-Chancellor Kindersley in Cook v. Gregson, 3 Drew. 549, in the fol- 
 lowing terms : " The general proposition is clear enough that where assets 
 may be made available in a court of law, they are legal assets, and where 
 they can only be made available through a court of equity, they are equi- 
 table assets. The proposition, however, does not refer to the question 
 whether the assets can be recovered by the executor in a court of law or in 
 a court of equity. The distinction refers to the remedies of the creditor, 
 and not to the nature of the property." See also, Shee v. French, 3 Drew. 
 716, and Mutlow v. Mutlow, 4 De G. & J. 539.
 
 OF TESTAMENTARY ASSETS. 507 
 
 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 payments of debts, should be 
 treated as fraudulent and void as against specialty cred- 
 itors ; 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. "(a) In 1807 
 a bill was introduced and carried by Sir Samuel Romilly, 
 making the real estate of persons who at the time of 
 their decease were subject to the Bankrupt Laws liable 
 to all their debts, but reserving to creditors by specialty 
 their privilege of precedence. (#) The provisions of the 
 acts of 1691 and 1807 were at a later period consolidated 
 and enlarged, and powers were conferred on the Court of 
 Chancery to render effectual any sales or mortgages 
 which might be required for satisfaction of debts, not- 
 withstanding the infancy or other incapacity of the heir 
 or devisee. (7) 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 
 
 (i) 3 & 4 Win. & Mary, c. 14, made perpetual by 6 & 7 Wm. 3, c. 14. 
 (k) 47 Geo. 3, c. 74. 
 
 (1) 11 Geo. 4 & 1 Wm. 4, c. 47 ; 2 & 3 Viet. c. 60 ; Price v. Carver, 3 M. 
 & C. 157 ; Scholefield v. Heafield, 7 Sim. 669 ; s. c. 8 Id. 470.
 
 508 ADAMS'S DOCTRINE OF EQUITY. 
 
 f"*2541 have ^charged with or devised, subject to the 
 payment of his debts, is made assets, to be ad- 
 ministered 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 possessed, (m) 1 The case of a 
 charge for payment of debts, or of a devise subject to such 
 payment is expressly excepted from the operation of the 
 act, and retains its original effect of exempting the pro- 
 perty 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 
 without 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 
 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.(w) 
 
 Equitable assets may be defined as those portions of 
 the property which by the ordinary rules of law, are ex- 
 empt from debts, but which the testator has voluntarily 
 charged as assets, or which, being non-existent at law, 
 have been created in equity. 2 
 
 (m) 3 & 4 Wm. 4, c. 104. 
 
 (n) 29 Car. 2, c. 3, s. 10; Case of Cox's Creditors, 3 P. Wms. 341. 
 
 1 See under this statute, Foster v. Handley. 1 Sim. N. S. 200. 
 
 8 In the most of the states of the Union, the doctrine of equitable assets
 
 OF TESTAMENTARY ASSETS. 509 
 
 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 
 
 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 statu- 
 tory preferences are given, as all assets are now in effect legal, equity can- 
 not disregard the established order. See on this subject the notes to Silk 
 . Prime, 2 Lead. Cas. Eq., 3d Am. ed. 82 ; 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 Rawle 250. Thus, formerly in New York it was decided that 
 the devise of an estate in trust to pay debts, and distribute the residue, 
 made the proceeds of the estate equitable assets, out of which creditors 
 were to be paid pari pastsu. Benson c. Le Roy, 4 Johns. Ch. 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 proportion to their claims : Backhouse r. Patton, 5 Peters 
 160 ; Black v. Scott, 2 Brock. 325. So in Kentucky, refer to Hilar v. 
 Darby's Adni'rs., 3 Dana 18 ; Cloudas's Ex'r. v. Adams, 4 Id. 603 ; Speed's 
 Ex'r. r. Xelson's Ex'r., 8 Monr. 499. See also on the doctrine, Henderson 
 r. Burton, 3 Ired. Ch. 259. Devises of real estate in trust for the payment 
 of debts, or charges on land for that purpose, are also recognised, and given 
 very much the same effect, as in England, except so far as they would in- 
 terfere with statutory preferences or regulations : Carrington v. Manning, 
 13 Ala. 628 ; Hines v. Spruill, 2 Dev. & Batt. 93 ; McHardy v. McHardy, 
 7 Flor. 301 ; Agnew v. Fetterman, 4Penn. St. 62 ; Hoovert?. Hoover, 5 Id. 
 357 ; Walker's Est., 3 Rawle 229. A sale by the trustees under such cir- 
 cumstances, will discharge the statutory lien of debts : Cadbury v. Duval, 
 10 Penn. St. 207 : and such a trust will prevent the lien of judgments 
 from expiring from want of revival: Baldy v. Brady, 15 Penn. St. 111. 
 These trusts and charges, however, as they are no longer necessary to en- 
 able 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 ; Carringotn p. Manning, 
 13 Ala. 628 ; Hines r. Spruill, 2 Dev. & Batt. Eq. 93. Where the statute 
 directs equal distribution amongst creditors, a trust by will creating pre- 
 ferences, is so far void : Bull r. Bull, 8 B. Monr. 332.
 
 510 ADAMS'S DOCTRINE OF EQUITY. 
 
 contain an exemption of devises for payment of debts. 
 With respect therefore to such devises, the old rule con- 
 r*2 p i'Vl tinues ; and if a testator devises land for payment 
 of his debts, or subject to *a charge for such pay- 
 ment, the devise operates to destroy the original liability, 
 and to subject the land to a new liability by way of 
 trust. (<?) The same rule does not apply to a bequest of 
 personalty, for such a bequest is a mere nullity as against 
 creditors, and does not affect the common law liability, Qt?) 1 
 Asse.ts of this kind may be created in three ways : viz., 
 1. By a devise to trustees, either in fee or for a term, ac- 
 companied 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 specified, but the produce is distributable by 
 the executors, will confer on them by implication a simi- 
 lar power, (q) or, if no person be pointed out, either ex- 
 pressly 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 
 ^vhom the legal estate has devolved, (r) 
 
 Equitable assets of the second class consist of interests 
 either in personal or real estate being which, non-existent 
 at law, have been created in equity ; and the principal 
 assets of this class are equities of redemption. So long 
 
 (o) Shiphard v. Lutwidge, 8 Ves. 26. 
 
 (p) Scott v. Jones, 4 01. & F. 382 ; Lyon v. Colville, 1 Coll. 449. 
 (q) 1 Sug. on Powers 134 ; Gosling v. Carter, 1 Coll. 644. 
 (r] Shaw v. Borrer, 1 Keen 559; Ball v. Harris, 8 Sim. 485 ; 4 M. & C. 
 264. 
 
 1 See to the same effect, Carrington v. Manning, 13 Ala. 628 ; Lewis v. 
 /Bacon, 3 Hen. & Munf. 106; Hines v. Spruill, 2 Dev. & Bat. Eq. 93 ; Ag- 
 new v. Fetterman, 4 Penn. St. 62 ; Cornish v. Wilson, 6 Gill 318.
 
 OF TESTAMENTARY ASSETS. 511 
 
 as the right of redemption exists at law, it is not divested 
 of the character of legal assets. And therefore, if the 
 heir or executor redeem, he is chargeable at law with the 
 surplus value ; and the administration will be conducted 
 on the legal principle, (s) If, after forfeiture, a 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 ^leasehold is mort- 
 gaged by underlease, (f) If, after forfeiture, there 
 is no reversion, as, for example, when a fee simple is mort- 
 gaged in fee, or a leasehold by 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 inter- 
 est is a mere creation of equity. 1 It has therefore been 
 determined, notwithstanding some doubts on the point, 
 that such interests shall be equitable assets. 2 Theraje.of 
 distribution paripassu, however, which has been noticed 
 as incidental to equitable assets, is modified in its appli- 
 cation to equities of redemption, in respect both to judg- 
 ment 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 free- 
 
 (s) Hawkins v. Lawse, 1 Leon. 155 ; 2 Wms. on Ex'rs. 1179. 
 (t) Plunket v. Penson, 2 Atk. 290. 
 
 1 In this country, generally, an equity of redemption of mortgaged real 
 estate, can be sold on execution upon a judgment at law. Until foreclo- 
 sure, the mortgagor remains seised of the freehold, and the mortgagee has 
 in effect but a chattel interest. See Clark v. Beach, 6 Conn. 142, 159, 160, 
 and cases there cited. See also, Kent's Com., vol. iv., p. 160. 
 
 2 But see Lovegrove v. Cooper, 2 Sin. & Giff. 273, in note.
 
 512 ADAMS'S DOCTRINE OF EQUITY. 
 
 hold 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, (u) 
 
 The distinction made between legal and equitable as- 
 sets, 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 ap- 
 plied in the order settled by law. And whether the law 
 be J us ^ or *unjust, the Court of Chancery cannot 
 alter it. But it was no part of their original con- 
 tract that other funds, if available for their debt at all, 
 should be available in the same order; and therefore if 
 other assets are brought in, either by the voluntary gift 
 of the testator, or by the special interposition of equity, 
 they may be fairly applied on the principle, that equality 
 is equity, and that all honest debts are equally entitled 
 to be paid. 
 
 Where an estate consists of both legal and equitable 
 assets, the rule is, that if any creditor has obtained part 
 payment out of the legal assets by insisting on his pre- 
 ference, he shall receive no payment out of the equitable 
 
 (u) Case of Cox's Creditors, 3 P. Wms. 341 ; Hartwell v. Chitters, Amb. 
 308 ; Sharpe v. Scarborough, 4 Ves. 538 ; Clay v. Willis, 1 B. & C. 364, 
 372 ; 1 Wms. on Ex'rs. 1197 ; Coote on Mortgages 60.
 
 OF TESTAMENTARY ASSETS. 513 
 
 
 
 assets, until the creditors, not entitled to such preference, 
 have first received an equal proportion of their debts. 1 
 
 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 exe- 
 cutor himself, who can only obtain complete exoneration 
 by having his accounts passed in Chancery, and is there- 
 fore entitled to insist on its being done.(^) 2 The most 
 usual practice, however, is, that the bill should not be 
 filed by the executor, but by one or more of the creditors 
 or legatees. 
 
 A single creditor may, if he pleases, file such a bill, 
 praying payment of his own debt, and a discovery and 
 
 (v) Knatchbull v. Fearnhead, 3 M. & C. 122 ; Low v. Carter, 1 Beav. 426. 
 
 1 See Chapman v. Esgar, 23 Eng. L. & Eq. 597; 1 Sm. & Giff. 575; 
 Cornish v, Wilson, 6 Gill 303 ; Purdy v. Doyle, 1 Paige 558 ; Wilder v. 
 Keeler, 3 Id. 165. This doctrine is not of very great importance in this 
 country, as the distinction between legal and equitable assets no longer 
 exists. An analogous question, however, whether a creditor holding col- 
 lateral 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, 18 Verm. 403; 
 Shunk's App., 2 Penn. St. 304; Cornish v. Willson, 6 Gill 303 ; Mason . 
 Begg, 2 Mylne & Cr. 448 ; Evans v. Duncan, 4 Watts 24 ; Kittera's Est., 
 17 Penn. St. 416; though the rule is otherwise in bankruptcy. See on 
 this subject the notes to-Aldrich v. Cooper, 2 Lead. Gas Eq. 56: and to 
 Silk r. Prime, Id. 82, &c. But the other creditors have, in such case, the 
 right to be subrogatcd to the securities, where they have not been real- 
 ized. See post, Marshalling. 
 
 2 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 
 . McDonald, 1 Hill Ch. 300, 301 ; Adams r. Dixon, 19 Ga. 513 ; McNeill's 
 Adm'r. v. McNeill's Creditors, 36 Ala. 109. 
 
 33
 
 514 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 
 
 creditors on behalf *of all. 1 The decree on such 
 
 -" a bill is for a general account of the debts and 
 
 (w) Johnson v. Compton, 4 Sim. 47. 
 
 1 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. Ch. 56. And he may come 
 into this Court, not only for discovery, but for distribution of assets : 
 Thompson v. Brown, 4 Johns. Ch. 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: Id. The account cannot be taken for his benefit alone, but for 
 all the creditors who choose to come in : Hazen v. Durling, 1 Green Ch. 
 133 ; see also Martin . Densford, 3 Blackf. 295 ; Judah v. Brandon, 5 Id. 
 506 ; Cram v. Green, 6 Ham. 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 de- 
 cree. 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 sub- 
 ject the land descended, or its proceeds: Carrington v. Didier, 8 Gratt. 260. 
 And see Farrar v. Haselden, 9 Rich. Eq. 336. When creditors, being non- 
 residents, could not obtain letters of administration, and were unable to
 
 OF TESTAMENTARY ASSETS. 515 
 
 for an account and application of the personal assets. If 
 the personal estate should prove insufficient, a decree will 
 be made against the realty. 1 By this means inconvenient 
 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 cred- 
 itors 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 de- 
 cree, 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 ex- 
 ecutor offers payment, may be compelled to accept it. 
 When a decree has been made, the case is different. The 
 fund has been taken into the hands of the Court; the 
 original plaintiff, though he has still the conduct of the 
 suit, ceases to have the absolute control; the general body 
 of creditors, for whose benefit the decree is made, uecome 
 entitled to intervene ; and as a necessary result from this 
 right of intervention, the proof of the plaintiff's debt, 
 given at the hearing, though good against the executor, is 
 not good against them, but it must be again proved in the 
 .Master's office. (x) 
 
 (x) Sterndale s. Hankinson, 1 Sim. 393 ; Owens r. Dickinson, Cr. & P. 
 
 procure any other persofc to administer, they were allowed to file a bill : 
 Garner o..Lyles, 35 Miss. 184. 
 
 The title of a creditor is paramount to the heir-at-law ; and on bills by 
 creditors against the 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 . Hotham, 9 Hare 73. See further, on the subject of creditor's 
 bills, Postlewait r. Howes, 3 Clarke (Iowa) 365. 
 
 1 A sale of real estate may be decreed, though some of the heirs are in- 
 fants ; but the claims of the creditors must first be fully adjusted, so that 
 their amount, and the necessity of a sale, may be ascertained : Cralle v. 
 Meen, 8 Gratt. 496.
 
 516 ADAMS'S DOCTRINE OF EQUITY. 
 
 A legatee may file a bill for > his single legacy, or on 
 behalf of all the legatees for payment of all. But he can- 
 not in either case have a preference over the rest; and 
 therefore, even in a suit for his single legacy, the decree 
 will not be for payment of that legacy alone, unless the 
 executor has admitted assets, and thus subjected himself 
 to a personal decree, but will be for a general account of 
 legacies, and ratable payment of all.^) 1 
 
 ^Immediately on the executor's answer being 
 obtained, the balance which he admits to be in 
 his hands is secured by payment into Court. A 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 as soon as the cause 
 
 48, 56; Woodgate v. Field, 2 Hare 211; Whitaker v. Wright, Id. 310, 
 314 ; Tatam . Williams, 3 Id. 347. 
 (y) Mitf. 168. 
 
 1 As a general rule, a legatee may sue the executor for his own particu- 
 lar 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. Ch. 466 ; Pritchard v. Hicks, 1 Paige Ch. 270. And see Brown v. 
 Ricketts, 3 Johns. Ch. 553. But it has been held that one residuary legatee 
 may file a bill on behalf of himself, and all others standing in the same 
 situation, and it is not necessary to make them all parties to the euit. 
 Where a bill is for the payment of a particular legacy, if the defendant ad- 
 mits 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 Ch. 15. And see Marsh v. Hague, 
 1 Ed. Ch. 174. 
 
 Legatees and annuitants are bound by the proceedings in a suit for ad- 
 ministration between the executors and residuary legatees and devisees, 
 although there may be a question as to the debts being primarily charged 
 upon real estate, which may incidentally affect them ; they cannot, there- 
 fore, after decree in such suit, sustain an administration suit against the' 
 executors : Jennings v. Patterson, 15 Beav. 28.
 
 OF TESTAMENTARY ASSETS. 517 
 
 can be brought to a hearing, a decree is made for taking 
 the accounts. 
 
 After the decree has been made, the assets will be pro- 
 tected from foreign interference. It has been already 
 stated, that until decree, the plaintiff has an absolute con- 
 trol over the suit, and may at his pleasure dismiss or 
 compromise 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 by the plaintiff, but directs a 
 general account and administration, under which all cred- 
 itors and legatees may claim. And, therefore, if sepa- 
 rate proceedings be afterwards carried on, the assets will 
 be protected by the Court from that needless expense. 
 In order to obtain this protection, it is the duty of the 
 executor to put in his answer as speedily as possible, with 
 the view to an immediate decree, and on the decree being 
 made, to apply for the necessary interference. The an- 
 swer 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 an- 
 swer does not state what the assets are, or if the execu- 
 tor be plaintiff, so that he cannot put in an answer, the 
 application should be accompanied by an affidavit, stating 
 the balance in his hands. (2) If the executor neglects to 
 apply, the protection will be granted on the application of 
 any other party interested, (a) 1 
 
 (z) Paxton v. Douglas, 8 Yes. 520; Gilpin p. Southampton, 18 Id. 469. 
 (a) Clarke v. Earl of Ormonde, Jac. 108, 122. 
 
 1 After a final decree has been made for the administration of a fund in
 
 518 ADAMS'S DOCTRINE OF EQUITY. 
 
 If the separate proceedings be at law, the protection 
 will *be given by injunction. By the old prac- 
 L J tice this could only be done on a bill filed against 
 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 this 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 whether 
 the injunction will not be limited to protect the assets 
 alone, (b) 
 
 If the separate proceedings are in equity, and in the 
 same Court as the original suit, the protection is obtained 
 
 (b) Lee v. Park, 1 Keen 714; Buries v. Popplewell, 10 Sim. 383 ; Kirby 
 v. Barton, 8 Ucy v. 45 ; Vernon v. Thellusson, 1 Ph. 466 ; Ranken v. liar- 
 wood, 5 Hare 215 ; 2 Ph. 22. 
 
 the hands of executdrs, c., for the benefit of all creditors who have a 
 claim, the Court may restrain the creditor from proceeding at law. In re 
 Receiver of the City Bank of Buffalo, 10 Paige Ch. 378. But an injunc- 
 tion will not be granted to restrain creditors from proceedings at law, until 
 after an account is decreed : Mactier . Lawrence, 7 Johns. C. C. 206. 
 
 And a creditor cannot, in a bill against an executor for his own benefit, 
 make another creditor a party defendant, and compel him to desist from 
 prosecuting his suit at law against the executor : Simmons v. Whitaker, 2 
 Ired. Eq. 129: and see Benson v. Le Roy, 4 Johns. Ch. 651; Helm v. 
 Darby, 3 Dana 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 in- 
 junction from paying over the proceeds to the heirs: Carrington v. Didier, 
 8 Gratt. 260.
 
 OF TESTAMENTARY ASSETS. 519 
 
 by an order to stay the proceedings in the second suit, 
 aud that the plaintiff may go before the Master in the 
 first. 1 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 different 
 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 
 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 cred- 
 itor's suit, as being necessarily incurred in administering 
 the estate, (d] If any further directions are required, 
 either for administering the real estate, or for arranging 
 
 (c) Pott v. Gallini, 1 S. & S. 206 ; Jackson v. Leaf, 1J. & W. 229, 232 ; 
 Beauchamp v. Marquis of Huntley, Jac. 546 ; Moore v. Prior, 2 Y. & C. 
 375 ; [see Ostell . Lepage, 16 Jurist 1164.] 
 
 (d) Larkins p. Paxton, 2 M. & K. 320 ; Barker v. Wardle, 2 Id. 818 ; 
 Tipping v. Power, 1 Hare 405. 
 
 1 See Stephenson v. Taverners, 9 Gratt. 398.
 
 520 ADAMS'S DOCTRINE OF EQUITY. 
 
 the order in which the assets shall be applied, they will 
 be given by a subsequent decree. The account of debts 
 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 waive it. For it is essential that it should 
 be ascertained whether creditors exist, before the fund in 
 which they have a claim is disposed of by the Court. (V) 
 A legacy, however, may be paid on an admission of assets, 
 although the accounts of the estate have not been taken; 
 for the decree is personal against the executor, and the 
 creditors, if there are any, are left untouched. 1 
 
 If a debt is secured by mortgage, the mortgagee may, 
 nevertheless, claim payment out of the general assets, re- 
 taining his mortgage to make good a deficiency; 2 or he 
 
 (e) Say v. Creed, 3 Hare 455 ; Penny . Watts, 2 Ph. 149. 
 
 1 See note, p. 258, supra. 
 
 2 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. See Gould v. Winthrop, 5 R. I. 319 ; Bradford v. 
 Forbes, 9 Allen 365 ; Plimpton v. Fuller, 11 Allen (Mass.) 139 ; Thomas 
 v. Thomas, 2 Green 356. In England, by statute, the law is now other- 
 wise ; post, p. 264, note. If, however, a mortgage debt was not contracted 
 by the decedent but by another, as e. g., a prior owner, the land is con- 
 sidered as the debtor ; and, even if there has 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 con- 
 tract were with the mortgagee, it would be otherwise : Cumberland v. 
 Codrington, 3 Johns. Ch. 257 ; Case of Keyzey, 9 S. & R, 73 ; Garnett v. 
 Macon, 6 Call308 ; Dandridge v. Minge, 4 Rand. 397 ; Stevens . Gregg, 
 10 Gill & J. 143 ; Kelsey . Western, 2 Comst. 500 ; Gibson v. McCormick, 
 10 Gill &J. 65; Bank of U. S. v. Beverly,! How. U. S. 134; Hoye v. 
 Brewer, 3 Gill & J. 153 ; Wyse v. Smith, 4 Id. 296 ; Matter of Hemiup, 3 
 Paige Ch. 305 ; Stuart v. Carson, 1 Dessaus. 500 ; McDowell v. Lawless, 6 
 Monr. 141 ; Haleyburton v. Kershaw, 3 Dessaus. 105, 115 ; Dunlapv. Dun- 
 lap, 4 Id. 305 ; Hoes v. Van Hoesen, 1 Comst. 120 ; Walkers Estate, 3 Rawle 
 229; Mansell ; 8 Estate, 1 Pars. Eq. 369 ; Mason's Estate, Id. 129 ; Mitchell
 
 OF TESTAMENTARY ASSETS. 521 
 
 may consent to have the mortgaged estate sold, the pro- 
 duce 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 re- 
 deemed estate as assets. (/) If a debt is due on judg- 
 ment, the judgment creditor will be paid off, for the Court 
 will not *sell subject to the judgment, and it can- 
 not otherwise make a title to the estate. (g) 
 
 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 
 i.< 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 advertisements, within which the 
 parties are to make their claims. After the expiration of 
 that time the Master reports the claims which have been 
 established ; and the Court, by the decree on further di- 
 
 (/) Mason v. Bogg. 2 M. & C. 443 ; Hepworth . Heslop, 3 Hare 485. 
 (g) Xeate i: Duke of Marl borough, 3 M. & C. 407, 416. 
 
 r. Mitchell, 3 Md. Ch. 73 ; McLenahan r. McLenahan, 3 Green (N. J.) 
 I'.il. When, however, the purchaser pays the full price of the land by in- 
 cluding the encumbrances which he assumed to pay as the entire consider- 
 ation of the premises, he makes the debt his own; and it must be paid out 
 of the personalty not specifically bequeathed : HoflTs Appeal, 12 Harris 
 200; Lennig's Estate, 52 Penn. St. 139. See note to Duke of Ancaster r. 
 Mayer, 1 Lead. Ca.. Eij.. '.',<] Am. ed. 505, where this subject is discussed. 
 
 In New York, by statute, the mortgage debt has been made to fall pri- 
 marily on the real estate. See Rogers c. Rogers, 1 Paige Ch. 188 ; Cogs- 
 well r. Cogswell, 2 Ed. Ch. 231 ; but the statute does not apply to the lien 
 for purchase-money : Wright r. Holbrook, 32 N. Y. 587. And see also, 
 Kent Com., vol. iv., p. 422. 
 
 The general rule, also, is confined to mortgages and charges of that na- 
 ture, 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 r. Boyer, 3 Macn. & G. 635.
 
 522 ADAMS'S DOCTRINE OF EQUITY. 
 
 rections authorizes a distribution of the fund among them, 
 and protects the personal representative against any future 
 claim. 1 If, however, a claimant should subsequently ap- 
 pear, who was bond fide ignorant of the proceedings, he 
 will not be barred of his right, but may be let in to par- 
 take, 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. (Ji) If the legatees 
 are named in the will, no advertisement is requisite. But 
 if any of them neglects 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. 
 
 The primd facie order of application is as follows : 1. 
 Personal estate not specifically bequeathed ; 2. Real es- 
 tate devised for payment of debts ; 3. Heal estate de- 
 scended;^-) 4. Personal and real estate specifically 
 bequeathed or devised, subject to a charge of debts by 
 will ;(7) 5. Personal and real estate subject to a charge of 
 ^ e ^^ s ^7 ^mortgage, to the extent of such mort- 
 gage; 6. Personal and real estate specifically 
 given, and not charged with debts. If the personalty and 
 the corpus of the real estate are inadequate, the heir or 
 devisee may be charged with bygone rents. (m)* 
 
 (h) David v. Frowd, 1 M. & K. 200 ; Gillespie v. Alexander, 3 Russ. 130 ; 
 [see Davies v. Nicolson, 2 De G. & J. 693 ;] Sawyer v. Birchmore, 2 M. & 
 C. 611 ; Brown v. Lake, 1 De G. & S. 144. 
 
 (i) Seton on Decrees 65. (k) Biederman v. Seymour, 3 Beav. 368. 
 
 (I) Harmood v. Oglander, 8 Ves. 106, 125. 
 
 (ra) Curtis . Curtis, 2 B. C. C. 620, 628, 633; Seton on Decrees 86; 
 Clarendon v. Barham, 1 N. C. C. 668, 704. 
 
 1 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 cred- 
 itors, may be dispensed with, and the apportionment made on affidavit: 
 Bear v. Smith, 5 De G. & Sm. 92. 
 
 J Though the cases in this country, on this branch of the subject of mar-
 
 OF TESTAMENTARY ASSETS. 523 
 
 In order that this arrangement may be clearly under- 
 stood, it is requisite that certain points should be more 
 fully explained. 
 
 shalling, are not by any means reducible to one harmonious system, still 
 t may be more convenient to group them together, so as to show how far 
 hey follow or depart from the order 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 bur" 
 den, unless expressly exonerated : Hays v. Jackson, 6 Mass. 149 ; Hoover 
 v. Hoover, 5 Penn. St. 351 ; Livingstone v. Newkirk, 3 Johns. Ch. 312 ; Kel- 
 sey v. Western, 2 Comst. 500 ; Miller v. Harwell, 3 Murph. 195 ; McLoud 
 v. Roberts, 4 Hen. & Munf. 443; Chase v. Lockerman, 11 Gill & J. 186; 
 Cornish v. Wilson, 6 Gill 301 ; Elliott v. Carter, 9 Gratt. 549 ; Hull v. Hull, 
 3 Rich. Eq. 65 ; Breden v. Gilliland, 67 Penn. St. 34 ; Knight . Knight, 6 
 Jones Eq. (N. C.) 134; Clarke v. Henshaw, 30 Ind. 144; Newcomer v. 
 Wallace, Id. 216. 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 Dessaus. 305 ; Pinckney 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. Wor- 
 tham, 2 Dev. Eq. 173 ; Brown v. James, 3 Strob. Eq. 24 ; Wilcox v. Wil- 
 cox, 13 Allen 252. 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 specific legacy, so as to be preferred to descended 
 lands : Walker's Est., 3 Rawle 229 ; Hoes v. Van Hoesen, 1 Barb. Ch. 380 ; 
 but in South Carolina, thjs distinction is not recognised, except as to a re- 
 siduary bequest, 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 Hoesen, 1 Barb. Ch. 380; 1 Comst. 120; see Lewis v. Dar- 
 ling, 16 How. U. S. 1. It appears also that in the last state, under the 
 Revised Statutes, the whole personal estate is to be applied before lands 
 descended : Skidmore r. Romaine, 2 Bradf. Surr. 132; see Stuart v, Kis- 
 sam, 11 Barb. s. c. 271. 
 
 (2) Real estate devised for the payment of debts: Robards v. Wortham,
 
 524 ADAMS'S DOCTRINE OF EQUITY. 
 
 i 
 
 1. It has been stated that the fund first liable is the 
 personal estate not specifically bequeathed. The propo- 
 
 i 
 
 2 Dev. Eq. 173 ; Hoover t>. Hoover, 5 Penn. St. 351 ; Hays v. Jackson, 6 
 Mass. 149. 
 
 (3) Real estate descended: Id.; Warley v. Warley, 1 Bail. Eq. 397; 
 Brooks v. Dent, 1 Md. Ch. 523 ; Elliott v. Carter, 9 Gratt. 549. After- 
 acquired land is also comprehended in this class : Livingston v. Newkirk, 
 
 3 Johns. Ch. 312; Comm. v. Shelby, 13 S. & 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. Lockerman, 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 Md. 
 471. See Mitchell v. Mitchell, 31 Md. 254. And see Alston v. Munford, 
 
 1 Brock. 266. But under the recent 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 . Roch, 
 
 2 Coll. 490 ; Fleming v. Buchanan, 3 De G., M. & G. 976 ; Patterson v. 
 Scott, 1 De G., M. & G. 531. And it would appear to be that which is 
 followed in Pennsylvania. It is also supported by Judge Hare in his notes 
 to Aldrich v. Cooper, 2 Lead. Gas. Eq. 56 (3d Am. ed.), and is clearly the 
 more reasonable. 
 
 (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 Md. 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 . 
 Scott, 2 De G., M. & G. 531 ; Collis . Robins, 1 De G. & S. 131 ; Kirk- 
 patrick v. Rogers, 7 Ired. Eq. 44; Buckley . Buckley, 11 Barb. S. C. 77; 
 Mitchell v. Mitchell, 3 Md. Ch. 73 ; McCampbell v. McCampbell, 5 Litt. 
 98 ; Leavitt . Wooster, 14 N. H. 550 ; Hasenclever v. Tucker, 2 Binn. 
 525 ; though disappointed legatees will be entitled to stand in the place of 
 the creditors as against the land charged : Paterson v. Scott, 1 De G., M. 
 & G. 531 ; Lockwood . Stockholm, 11 Paige 87 ; Cryder's App., 11 Penn. 
 St. 72. 
 
 Where the realty and personalty are blended together in one disposition, 
 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 per- 
 sonalty, are constituted a joint fund for that purpose, both contribute
 
 OF TESTAMENTARY ASSETS. 525 
 
 sition would perhaps be more accurately worded by con- 
 fining it to the general residue after deduction of all par- 
 
 ratably: Elliott r. Carter, 9 Gratt. 541 ; Cradock v. Owens, 2 Sm. & Giff. 
 241 ; Robinson v. Governors, &c., 10 Hare 29;. Adams v. Brackett, 5 Met- 
 calf, 282 : see McCampbell^. McCampbell, 5 Litt. 99; Ford v. Gaithur, 2 
 Rich. Eq. 270 ; Cox . Corkendall, 2 Beas. 138 ; Branfs Will, 40 Mo. 266; 
 but contra, Hoye v. Brewer, 3 Gill & John. 153. In Boughton v. Boughton, 
 1 II. Lds. Gas. 406, overruling 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 Cran- 
 worth in Tidd v. Lister, 3 De G., M. & G. 857, a very similar case. In Rob- 
 inson 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, 1G How. U. S. 10, it was held, in 
 effect, that where legacies are given, and no fund is expressly provided 
 for their payment, but a general residuary disposition of realty and per- 
 sonalty is made to the same person, it is unnecessary, on a bill to charge 
 the real estate, to show that the personalty is exhausted ; and the language 
 of the Court goes to the length of authorizing 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 only show that, where legacies are not ex- 
 pressly provided for, a residuary 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. S. C. 43; Leavitt t>. Wooster, 14 
 N. II. 550. See Clery's Appeal, 35 Penn. St. 54. 
 
 The general rule that a residuary disposition of realty and personalty 
 will render legacies otherwise unprovided for a charge upon the realty, is 
 thoroughly established : see Greville t?. Browne, 7 H. L. Cas. 697 ; Galla- 
 gher's Appeal. 48 Penn. St. 122 ; Shulters r. Johnson, 38 Barb. 80. And 
 see the remarks, in this last case, on Lewis v. Darling (supra). An excep- 
 tion to this rule is said to obtain where there are previous specific devises
 
 526 ADAMS'S DOCTRINE OF EQUITY. 
 
 ticular legacies. For although pecuniary legacies cannot 
 be conveniently set apart in the outset, and the decree, 
 
 of portions of the real estate: see Lupton v. Lupton, 2 Johns. Ch. 614 ; 
 Shulters v. Johnson, ut supra; Robinson v. Mclvor, ^3 N. C. 645. 
 
 (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 land, as against a devisee, was recognised 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 subsequently 
 mortgages one, the devisee of the mortgaged estate is entitled to contribu- 
 tion from the others : Middleton v. Middleton, 15 Beav. 450. But in Gib- 
 son v. McCormick, 10 Gill & J. 65, where there was no express charge of 
 debts, the devisee of the mortgaged estate in such case, was held not so en- 
 titled : Accord Mason's Estate, 1 Pars. Eq. 129 ; s. c. 4 Penn. St. 497. 
 
 (6.) The English rule that devisees and specific legatees are to contribute 
 ratably after the exhaustion of the previous classes, was followed in Chase 
 v. Lockerman, 11 Gill & J. 185 ; Teas's App., 23 Penn. St. 223 ; Armstrong's 
 Appeal, 63 Id. 312 ; see Alexander v. Worthington, 5 Md. 493 ; and 
 Skidmore v. Romaine, 2 Bradf. Surr. 132; though it was confined in Chase 
 v. Lockerman, 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 teen held in several cases in the United 
 States, that the specific legacies were to abate without contribution from 
 devises : Livingston v. Livingston, 3 Johns. Ch. 148 ; Miller v. Harwell, 3 
 Murph. 194 ; Warley v. Warley. 1 Bail. Eq. 397 ; Rogers v. Rogers, 1 Paige 
 183 ; Hull v. Hull, 3 Rich. Eq. 65 ; Elliott v. Carter, 9 Gratt. 549 ; Hoover 
 v. Hoover, 5 Penn. St. 351 ; but contra Teas's App., 23 Id. 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 from the other devisees: Loomis's 
 Estate, 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
 
 OF TESTAMENTARY ASSETS. 527 
 
 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.(w) 
 
 3. A doubt has arisen whether assets of the third class 
 are confined to lands descended to the heir, or whether 
 the late act, declaring that the lands of which a debtor 
 shall die seised, shall be assets for payment of his debts, 
 has the 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, (nn) 
 
 (n) 2 Jarm. on Wills 564-600; Collis v. Robins, 1 De G. & S. 131. 
 (nn) 3 & 4 Wm. 4, c. 10^ ; Evans v. Brown, 5 Beav. 114 ; 11 Law J. 349. 
 
 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 as- 
 sets for creditors : Fleming v. Buchanan, 22 L. J. Ch. 886 ; 3 De G., M. & 
 G. 976. See ante, 99, note. 
 
 See, on this subject generally, notes to Duke of Ancaster c. Mayer, 1 
 Lead. Cas. Eq. 447 ; and to Aldrich v. Cooper, 2 Id. 56, 3d Am. ed.
 
 528 ADAMS'S POCTRINE OF EQUITY. 
 
 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; 
 Adz., that mortgaged estates, whether devised or descended 
 shall be liable for payment of the mortgage debts, as as- 
 sets 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 intention to exonerate 
 the estate. 1 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 speci- 
 fically given subject to the charge. Nor will the order of 
 their liability be altered although the devise be in terms 
 "subject to the mortgage;" for these words mean no more 
 than a gift of the estate would imply. * On the other 
 hand, the liability is prior to that of property given with- 
 out a charge, including general pecuniary legacies, but ex- 
 clusive of a mere residuary gift; because a residuary gift 
 denotes no intention of bounty, except as subject to all 
 legal charges. If a mortgaged estate descend to the heir, 
 it will be liable as assets by descent after land devised 
 for payment of debts, (o) 
 
 In order, however, to charge any other assets in prior- 
 ity to the mortgaged estate, it is essential that the mort- 
 
 (o) Halliwell v. Tanner, 1 R. & N. 633 ; Wythe v. Henniker, 2 M. & K. 
 935 ; Johnson . Child, 4 Hare 87 ; Lockhart t>. Hardy, 9 Beav. 349. 
 
 1 But now by Stat. 17 & 18 Viet. ch. 118, a mortgage debt is primarily 
 a charge upon the mortgage estate. There has been some conflict of 
 authority upon the construction of this act. See Woolstencroft v. Woolsten- 
 croft, 2 De G., F. & J. 347 ; Moore v. Moore, 1 De G., J. & S. 602 ; Max- 
 well v. Hyslop, L. R. 4 Eq. 407. See, also, Hill on Trustees 357, note 
 (4th Am. ed.).
 
 OF TESTAMENTARY ASSETS. 529 
 
 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 it 
 good; or if it *has become the primary fund in pj.^r-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, (p) 1 
 
 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, 
 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 pro rata, and that, accordingly, if land 
 be devised, and the testator die indebted by bond, a spe- 
 
 (p) Scott v, Beecher, 5 Mad. 96 ; Oxford . Rodney, 14 Ves. 417 ; Evelyn 
 e. Evelyn, 2 P. Wms. 664, Cox's note ; Ancestor v. Mayer, 1 B. C. C. 453 ; 
 Ibbetson v. Ibbetson, 12 Sim. 206. 
 
 (2) Knight v. Davis, 3 M. & K. 358 ; Blount v. Hipkins, 7 Sim. 51 ; Jac- 
 ques v. Chambers, 2 Coll. 
 
 1 This distinction has been generally recognised. See Cumberland v. 
 Codrington, 3 Johns. Ch. 227, 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. 
 34
 
 530 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 only could 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 therefore 
 of land in general terms has now ceased to be a specific 
 devise, (s) 
 
 The order of liability which has been above explained, 
 I~*2fifi1 * su kj ec t to any variations directed by the will, is 
 that in accordance with which the several por- 
 tions of the assets will be successively applied. It may, 
 however, occur, that in the course of administration, 
 some portion of the estate has paid more than its share, 
 or that claims, for which several funds were liable, have 
 been so paid as to exhaust a fund, which alone was ap- 
 plicable for another claim. If irregularities of this kind 
 occur, they will be rectified by the equities next consid- 
 ered, of contribution, of exoneration, and marshalling. 
 
 (r) Roberts v. Walker, 1 R. & M. 752 5 Attorney-General v. Southgate, 
 12 Sim. 77 ; Boughton . James, 1 Coll. 26 ; [see, on this case, note, ante, 
 263] ; Tombs t>. Roch, 2 Coll. 490 : Gervis v. Gervis, 14 Sim. 654. 
 
 () 1 Viet. c. 26 ; 2 Jarm. on Wills 547, n.
 
 CONTRIBUTION AND EXONERATION. 531 
 
 *CH AFTER V. [*267] 
 
 OF CONTRIBUTION, 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 the matter, 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 where 
 several persons are bound by a common charge not 
 arising ex delicto, and their order of liability has been ac- 
 cidentally deranged. If the liabilities be joint, he who 
 has paid more than his share is entitled to contribution 
 from the rest. 1 If some are liable in priority to the rest, 
 
 1 The doctrine of contribution is not so much founded on contracts, as on 
 the principle of equity and justice, that where the interest is common, the 
 burden also shall be common. Qui sentit commodum, sentire debut et onus : 
 Campbell v. Mesier, 4 Johns. Gh. 334 ; s. c. 6 Id. 21 ; Russell . Failer, 1 
 Ohio St. N. S. 327 : White v. Banks, 21 Ala. 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 cred- 
 itor 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 contribution of course exists : Wager v. Chew, 1 5 
 Penn. St. 323 5 Cook . Hinsdale, 4 Gush. 134.
 
 532 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 ne- 
 cessary "repairs which they require, (a) 1 A 
 similar exception has, by many foreign jurists, 
 been thought applicable to ships, on general grounds of 
 maritime policy ; but the rule of the common law is dif- 
 ferent; and, in the absence of any express or implied 
 
 (a) Co. Litt. 200 b. 
 
 1 See 4 Kent Com. 370 ; Anderson v. Greble, 1 Ashm. 136. A tenant 
 in common is not entitled to charge his co-tenant with a proportion of the 
 expenses incurred for the benefit of the common property : Carver v. Miller, 
 4 Mass. 559 ; Cheeseborough 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 Ch. 46 ; Hancock . Day, 1 McMullan Eq. 69 ; Thomp- 
 son v. Bostwick, Id. 75 ; Holt v. Robertson, Id. 475 ; though see Payton v. 
 Smith, 2 Dev. & Batt. Eq. 325, 349 ; and, e converso, where land belonging 
 to tenants in common or joint tenants yields no profit, and one of the owners 
 enters and renders the estate productive, the others cannot claim a share 
 of the profits : Id. ; Nelson v. Clay, 7 J. J. Marsh. 138. See, under special 
 statutes in Maine and New Hampshire : Bellows v. Dewy, 9 N. H. 278 ; 
 Buck v. Spofford, 31 Maine 34. Where co-tenants make partition of land 
 subject to a mortgage, the share of the premises set off to each is primarily 
 chargeable with half of the mortgaged debt : Rathbone v. Clark, 9 Paige 
 648. And see preceding note.
 
 CONTRIBUTION AND EXONERATION. * 533 
 
 agreement, throws the costs of any repairs on the party 
 directing them . (#) l 
 
 If the liability arise ex delicto there is no right to con- 
 
 (6) Story on Partnership, ss. 421-6 ; Smith's Merc. Law 175. 
 
 1 Hardy v. Sproule, 31 Maine 71 ; Schooner William Thomas v. Ellis, 4 
 Harring. 309 ; Brooks v. Harris, 12 Ala. 555 ; Turners. 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., s. 419 ; see Hop- 
 kins 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. ; Patter- 
 son v. Chalmers, 7 B. Monr. 598 ; Flanders on Shipping, 8. 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 contribution 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 Ves. & Beames 242, overruling Lord 
 Hardwicke in Doddington v. Hallet, 1 Ves. 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. Bartless, 6 Pick. 46 ; and by Chancellor 
 Kent in Nicoll . 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 Johns. 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. Dessaussure in Seabrook v. Rose, 2 Hill Eq. 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 . Forsyth, 14 Id. 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., s. 408 ; 
 Mumford v. Nicoll, 20 Johns. 611. And in such case, the part-owners will 
 be entitled to all the equities and liens which arise from that relationship. 
 But, on the other hand, they cannot claim contribution or subrogation, 
 until the whole partnership affairs are settled : Story Partn., ss. 219, 419, 
 &c., 260 ; see Bailey v. Brownfield, 20 Penn. St. 45.
 
 534 ADAMS'S DOCTRINE OF EQUITY. 
 
 tribution; for there is no equity between wrongdoers. 1 
 But it is otherwise with respect to mere breaches of trust, 
 not involving any actual fraud. In such cases each de- 
 faulting 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 special difficulties, 
 originating in the necessity of suing each party liable in 
 a separate action, which renders it difficult to insure ver- 
 dicts for the true ratable shares, and disables the Court, 
 where one of several contributors proves insolvent, from 
 distributing the consequent loss ratably among the rest.(df) 2 
 
 (c) Merryweather v. Nixan, 8 T. 186 ; Lingard v. Bromley, 1 Ves. & B. 
 114; Seddon v. Connell, 10 Sim. 79, 86 ; Attorney-General v. Wilson, Cr. 
 & P. 1 ; [see Hill on Trustees (4th Am. ed.) 814, and notes.] 
 
 (d) Cowell v. Edwards, 2 Bos. & P. 268 ; Deering . Earl of Winchelsea, 
 Id. 270 ; Browne v. Lee, 6 B. & C. 689. 
 
 1 Contribution will not be enforced in equity between wrongdoers ; espe- 
 cially when the party who seeks it does not stand in cequali jure with 
 the other : Peck . Ellis, 2 Johns. Ch. 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 184 ; see, also, Miller v. Fenton, 
 11 Paige 18; Dupuy v. Johnson, 1 Bibb 562; Rhea v. White, 3 Head 
 (Tenn.) 121 ; Anderson v. Saylors, Id. 551. But this rule is not of uni- 
 versal 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. 
 
 z The jurisdiction of equity in cases of contribution is not affected, be-
 
 CONTRIBUTION AND EXONERATION. 535 
 
 The two equities of contribution and exoneration are 
 both exemplified in the case of suretyship i 1 the one by 
 
 cause a remedy now exists at common law : Veile v. Hoag, 24 Verm. 46 ; 
 ' Wayland v Tucker, 4 Gratt. 268 ; Couch v. Terry, 12 Ala. 225 ; Hickman 
 v. McCurdy, 7 J. J. Marsh 559. 
 
 1 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 Rees v. Berrington, 2 Lead. Gas. Eq. 814. 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 measures, by which 
 all opportunity of collecting the debt is lost, unless, perhaps, when amount- 
 ing to fraud (Dawson v. Lawes, 23 L. J. Ch. 434) will not affect the lia- 
 bility 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 arises 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. Culvert- 
 son, 1 Wall. Jr. 149, and cases cited ; McClurg v. Fryer, 15 Penn. St. 293 ; 
 Marberger v. Pott, 16 Id. 13 ; Reigartr. White, 52 Id. 438. Unless, how- 
 ever the guarantee is special, as to pay a note, "when due-," in which 
 case the principal need not be pushed to insolvency : Campbell v. 
 Baker, 46 Penn. St. 243. 
 
 Apart from this special case, it is well established, therefore, that indul- 
 gence 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 commenced, will 
 not discharge the surety, of itself, whatever may be its effects to his injury. 
 See also Marberger v. Jott, 16 Penn. St. 13 ; Pittsburgh, &c., R. R. v. 
 Shaeffer, 59 Id. 350 ; Hunter v. Clark, 28 Texas 159 ; Rucker . Robinson, 
 38 Mo. 154 ; Black River Bank . Page, 44 N. Y. 453. And, though both 
 in England, and the United States generally, collaterals held by the cred- 
 itor, are considered as constituting a trust fund for the benefit of th sure- 
 ties, yet contrary to the doctrine in the former country, the creditors seem 
 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
 
 536 ADAMS'S DOCTRINE OF EQUITY. 
 
 the rights of sureties as between themselves; the other 
 by their rights as against the principal. 
 
 destroy the relations of the principal to the surety, or the right of the latter 
 to recourse or indemnity, 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 bind- 
 ing promise to give time to the principal, for however short a period, or d 
 fortiori, of his release : Paulin v. Kaign, 3 Dutch. 503 ; Pierce v. Golds- 
 berry, 31 Ind. 52. See also Wakefield Bank v. Truesdall, 55 Barb. (N. Y.) 
 602; Preston v. Hennig, 6 Bush (Ky.) 556; Calvin v. Wiggam, 27 Ind. 
 489 ; Adams . Way, 32 Conn. 160. 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 
 Bank v. Colcord, 15 N. H. 123 ; Everly v. Rice, 20 Penn. St. 297 ; Armis- 
 tead v. Ward, 2 Patt. & H. 504 ; The People's Bank v. Pearsons, 30 Verm. 
 715; Phares . Barbour, 49 111. 370; Mount v. Tappey, 7 Bush 617. The 
 remedy against a surety may be expressly reserved : Boaler v. Mayor, 19 
 C. B. N. S. 76 ; Union Bank v. Buck, 3 Hurl. & Colt. 672 ; Barkyat v. 
 Ellis, 45 N. Y. 107. Where the creditor has gone farther, and varied the 
 terms of the original contract in any essential matter, the surety is abso- 
 lutely discharged, though the alteration may be shown to be actually for 
 his benefit, when he does not assent to the change. See Smith v. United 
 States, 2 Wall. S. C. 233. In all cases, however, where he insists on a dis- 
 charge, 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. 
 
 By 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 hi property before he can enforce his remedy against the 
 surety. See Hayes . Ward, 4 Johns. Ch. 123 ; Abercrombie v. Knox, 3 
 Ala. 728; sed vide West v. Belches, 5 Munf. 187; Wright v. Crump, 25 
 Ind. 339. 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 
 Md. Ch. 442; Hayes v. Ward, ut supr. ; Stephenson v. Taverner, 9 Gratt. 
 398 ; Thigpen v. Price, Phill. (N. C.) Eq. 146 ; Wright v. Austin, 56 Barb. 
 (N. Y.) 13. 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 is entitled, therefore, on bill against the principal, to make the creditor
 
 CONTRIBUTION AND EXONERATION. 537 
 
 *The right of contribution arises between sure- r#of>q-i 
 ties where one has been called on to make good 
 
 a party for that purpose. Sec 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. Baldwin, 
 17 Johns. 384 ; Valentine v. Farrington, 2 Ed. Ch. 53 ; Rutledge v. Green- 
 wood, 2 Dessaus. 389 ; Pain r. Packard, 13 Johns. 174 ; Bruce v. Edwards, 
 1 Stew. 1 1 : see also Matter of Babcock, 3 Story 393 ; Spottswood v. Dan- 
 dridge, 4 Munf. 289 ; Singer v. Troutman, 49 Barb. (N. Y.) 182. So, in 
 Pennsylvania, 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 r. Smith, 8 S. & R. 112; Greenawalt v. Kreider, 3 Penn. 
 St. 264; and provided, also, the debt is due: Hellen v. Crawford, 
 44 Id. 105. The request may be made by an agent, and to the agent 
 or attorney of the creditor. The request is binding, without a tender 
 of expenses, or offer to sue upon the obligation, unless the creditor makes 
 objection on that ground at the time : Wetzel r. Sponsler's Ex'rs., 18 Penn. 
 St. 462 : Conrad v. Foy, 68 Id. 381. Under the Mississippi Code such 
 notice must be in writing : Bridges v. Winters, 42 Miss. 135. 
 
 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 . 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 subrogated 
 to, and to avail himself of all the securities held by the surety : note to 
 Bering r. Earl of Winchelsea, 1 Lead. Cas. Eq. 87 ; Kramer & Rahm's 
 Appeal, 37 Penn. St. 76 ; Havey v . Foley, 4 Benn. (Mo.) 136 ; Vail v. 
 Foster. 4 Comst. 312; Houston v. The Branch Bank, 25 Ala. 250; Dozier 
 v. Lewis, 27 Miss. 677 ; see the remarks in Yonge v. Reynell, 9 Hare 809 5 
 Irick v. Black, 2 Green 189 ; Owens v. Miller, 29 Md. 144 ; Van Orden v. 
 Durham, 35 Cal. 136. The right is one recognised by Courts of law: Boyd 
 r. McDonough, 39 How. (N. Y.) 389. This right, however, 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 r. Stamps, 26 Miss. 463. 
 
 A surety cannot compel a creditor to resort to a collateral security in the
 
 538 ADAMS'S DOCTRINE OF EQUITY. 
 
 the principal's default, and has paid more than his share 
 of the entire liability, (e) 1 If all the sureties have joined 
 
 () Smith's Merc. Law 427-8 ; Davies . Humphreys, 6 M. & W. 153, 169. 
 
 first instance, unless such security be as available in all respects as a pro- 
 ceeding against the surety : Gary v< Cannon, 3 Ired. Ch. 64 ; Kirkman v. 
 Bank of America, 2 Cold. (Tenn.) 397. 
 
 1 First. It is a general principle that a surety who has paid the debt may 
 compel his co-surety to make contribution : Waters v. Riley, 2 Har. & G. 
 305 ; Pinkston v. Taliaferro, 9 Ala. 547 ; Mitchell v. Sproul, 5 J. J. Marsh. 
 264 ; Robertson v. Maxcey, 6 Dana 103 ; Yates v. Donaldson, 5 Md. 389. 
 See, on this subject, notes to Dering v. Earl Winchelsea, 1 Lead. Gas. Eq. 
 78. 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 Ala. 92. And 
 he must show also that the principal is insolvent, or at least that he has 
 used due diligence against him. Where one of the sureties is insolvent, his 
 share is proportioned among the rest, in favor of the surety asking con- 
 tribution : 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 : Rutherford 
 v. Branch Bank, 14 Ala. 92. And it has been held that where, on a judg- 
 ment against co-sureties, the land of one has been sold, the judgment cred- 
 itors of the latter arc 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, " Equal- 
 ity is equity," and hence where one of two sureties, without the know- 
 ledge of his co-surety, and by previous arrangement with the principal 
 debtor, received a share of the sum borrowed, he was held not entitled to 
 contribution from such co-surety, when obliged to pay the debts : McPher- 
 son . Talbot, 10 Gill & J. 499 ; see, also, Kerns v. Chambers, 3 Ired. Ch. 
 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. 233 ; 
 Hinsdale v. Murray, 6 Verm. 136 ; Miller v. Sawyer, 30 Id. 412 ; Ramsey 
 . Lewis, 30 Barb. 403 ; Butler v. Birkey, 13 Ohio N. S. 514 ; McMahon v. 
 Fawcett, 2 Rand. 514; Bobbitt v. Flowers, 1 Swan (Tenn.) 511; Aldrich's 
 Admrs. v. Hapgood, 39 Verm. 617 ; Clapp v. Rice, 15 Gray (Mass.) 557 ; 
 Brown v. Ray, 18 N. H. 102 ; but so far as he has a security foi> indi- 
 vidual claims he is entitled to hold it : McCunn v. Belt, 45 Mo. 194. 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 extinguish-
 
 CONTRIBUTION AND EXONERATION. 539 
 
 in a single bond, the general rule, in the absence of any 
 express or implied contract, is that of equality; if their 
 
 ment of his portion of the liability : Thompson v. Adams, 1 Freem. Ch. 
 225 ; Moore r. Moore, ubi supra ; see, also, Moore v. Isley, 2 Dev. & Bat. 
 Ch. 372 ; Himes v. Keller, 3 W. & S. 401 ; Bowditch v. Green, 3 Mete. 
 360; Com. Bank v. Western Bank., 11 Ohio 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 Ala. 455 ; Morrison v. Taylor, 21 Id. 779. Where a surety ob- 
 tains indemnity for a consideration paid by him, a co-surety cannot claim 
 the benefit of it. without paying his proportion of the consideration : White 
 v. Banks, 21 Ala. 705. And so where one surety buys in the principal's 
 land, on the judgment against him, with his own money, the others can- 
 not claim to participate in the benefit of the purchase : Crompton v. Vas- 
 ser, 19 Ala. 259. 
 
 A surety who has neglected to interpose a legal defence, as of the 
 Statute of Limitations, cannot claim contribution from the rest: Fordham 
 v. Wallis, 17 Jurist 228. And, on the other hand, one is not entitled 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. 357. 
 
 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 prin- 
 cipal : Fulwood v. Bashfield, 14 Penn. St. 90 ; yet it is otherwise with re- 
 gard 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 judgment 
 against them, to compel contribution by his co-surety : Cuyler v. Enswortb, 
 6 Paige Ch. 32 ; Croft v. Moore, 9 Watts 451 ; yet see Bank v. Adger, 2 
 Hill 'Ch. 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. Ch. 548 ; McDowell v. Bank, 1 
 Harrington 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 Dering v. Winchelsea, ut sup. Where several persons, or 
 sets of persons, enter into engagements of suretyship, which are the same 
 in legal operation and effect, though at different times and by different in- 
 struments, for the same debt, and to and for the same persons, the right 
 of contribution exists among all ; and parol evidence is admissible to con- 
 tradict the legal result. See, also, Norton v. Coons, 2 Selden (N. Y.) 33 ;
 
 540 ADAMS'S DOCTRINE OF EQUITY. 
 
 liabilities have been created by" distinct bonds, the contri- 
 bution is in proportion to the respective penalties. But 
 in either case the principle is the same ; and provided the 
 transaction to which the suretyship applies, be single, the 
 mode in which the parties are bound, whether by the same 
 or by different instruments, is, with respect to the right 
 of contribution, immaterial. (/) The equity for contribu- 
 tion between sureties is also applicable 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 underwriters, they may have a ratable 
 contribution from the rest.(^) 
 
 (f) Deering v. Earl of Winchelsea, 2 Bos. & P. 270 ; Coope v. Twynam, 
 T. & R. 426 ; Craythorne v. Swinburne, 14 Ves. 160. 
 
 ( g) Newby v. Reed, 1 W. Bl. 416. 
 
 Bell v. Jasper, 2 Ired. Eq. 597. If, however, the obligations be for dis- 
 tinct things, with no relation to or operation on each other, though they 
 may be all founded on the same original indebtedness, there is no contri- 
 bution between the sureties. One who becomes surety in the course of 
 legal proceedings against the principal has no right of contribution against 
 the original surety for the debt itself; on the contrary, the latter is enti- 
 tled to be subrogated to the creditor's right 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 be- 
 comes surety by a supplemental instrument, on the understanding that he 
 is to be liable only in default of the principal 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. 
 
 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. 385 ; Daniel v. Ballard, 2 Dana 296 ; Allen . 
 Wood, 3 Ired. Ch. 386 ; Burrows . McWhann, 1 Dessaus. 409 ; or show 
 that he has used due diligence, without effect, to obtain reimbursements : 
 McCormack . 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. Ch. 249.
 
 CONTRIBUTION AND EXONERATION. 541 
 
 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, (h) 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 substituted 
 in his place. But he cannot have an assignment of the 
 debt, itself, for that is determined by his own payment, 
 and a new debt is due from his principal to himself, (z) 1 
 
 (h) Toussaint v. Martinnant, 2 T. R. 100 ; Pownal v. Ferrand, 6 B. & 
 C. 439. 
 
 (i) Copis v. Middleton, T. & R. 224 ; Caulfield v. Maguire, 2 Jones & 
 Lat. 141, 164 ; Hodgson v. Shaw, 3 M. & K. 183. 
 
 1 In support of the doctrine that a surety, on paying the debt, is entitled 
 to stand in the place of the creditor, and to be subrogated to all his rights 
 against the principal debtor, see Clason r. Morris, 10 Johns. 524 ; Lewis 
 . Palmer, 28 N. Y. 276 ; Erb's Appeal, 2 Penna. R. 296 ; McDowell . 
 Bank, 1 Harring. 369; Tatum . Tatum, 1 Ired. Ch. 113 ; Lownds v. Chis- 
 holm, 2 McCord's Ch. 455 ; Perkins v. Kershaw, 1 Hill Ch. 344 ; Foster 
 v. Trustees, 3 Ala. 302 ; Rhodes v. Crockett, 2 Yerg. 346 ; Wade . Green, 
 3 Humph. 547 ; Xeimcewicz . Gahn, 3 Paige 614 ; Salmon v. Clagett, 3 
 Bland. Ch. 173 ; Hampton v. Levy, 1 McCord Ch. 116 ; Burk v. Chrisman, 
 3 B. Monr. 50 ; Yard v. Patton, 13 Penn. St. 287 ; Brewer . Franklin 
 Mills, 42 N. H. 292 ; York v. Landis, 65 N. C. 535. Actual assignment is 
 not necessary in this country to subrogation, in the case of a surety. Note 
 to Deering v. Winchelsea, ut supr. ; Lloyd v. Barr, 11 Penn. St. 48 ; Gos- 
 sin v. Brown, Id. 531 ; Bailey v. Brownfield, 20 Id. 45 ; Cottrell's App., 23 
 Id. 294. Though it is so, in the case of a stranger, who pays the debt 
 voluntarily : Sandford . McLean, 3 Paige 117 ; Bank U. S. . 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 primarily 
 liable, subrogation takes place by operation of law ; as in the case of a 
 vendee who pays a judgment against his vendor : Kyner v, Kyner, 6 Watts 
 221. See the remarks of Strong, J., on the nature of subrogation, in 
 McCormick's Admr. v. Irwin, 35 Penn. St. 117. 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 Deering 
 p. Winchelsea. 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
 
 542 ADAMS'S DOCTRINE OF EQUITY. 
 
 r*27ffl same ec l u ity * wn i cn enables a surety, after 
 
 payment by himself, to recover the amount from 
 his principal, warrants him in filing a bill to compel pay- 
 ment by the principal, when he has been brought under 
 liability by the debt falling due, though he may not have 
 been actually sued.(^) 1 
 
 (k) Mitf. 148 ; Antrobus v. Davidson, 3 Meriv. 569, 578. 
 
 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 exonera- 
 tion ; the payment being regarded as a purchase, and not as an extinguish- 
 ment : see Burns v. Huntingdon Bk., 1 Penna. K. 395 ; Fleming v. Beaver, 
 2 Rawle 132 ; Schnitzel's Appeal, 49 Penn. St. 23 ; Perkins v. Kershaw, 
 1 Hill Ch. 344 ; Matthews v. Aiken, 1 Comst. 595 ; Creager v. Brengle, 5 
 Har. & J. 234; Gadsden v. Lord, 1 Dessaus. 214 ; Cuyler v. Ensworth, 6 
 Paige 32; Lathrop's Appeal, 1 Penn. St. 512; Gossin v. Brown, 11 Id. 
 531 ; Baily v. Brownfield, 20 Id. 45 ; Storms v. Storms, 3 Bush (Ky.) 77 ; 
 Arnot v. Woodburn, 35 Mo. 99 ; Sears v. Laforce, 17 Iowa 473. Even an 
 entry of satisfaction on the judgment against the principal, if without the 
 consent of the surety, will not affect the right of subrogation: Baily v. 
 Brownfield. But see Elwood v. Diedendorf, 5 Barb. S. C. 398. This rule 
 appears to be general in the United States, except in Alabama and North 
 Carolina: Sanders v. Watson, 14 Ala. 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 Deering v. Winchelsea, ut sup. 
 
 The surety is entitled, by the operation of the doctrine of subrogation, 
 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. Winn, 4 Md. Ch. 254. 
 And so a surety in a bond to the United States, is entitled to avail himself 
 of their prerogative preference against the other creditors : U. S. v. Hunter, 
 5 Mason 62 ; 5 Peters 174. The surety, however, taking the rights of the 
 creditor,- cannot claim to stand in any better position than he: Calvin v. 
 Owen, 22 Ala. 782. 
 
 1 As a general rule, the surety is not entitled to be subrogated, or to 
 chum contribution, until he has actually paid the debt : Rice v. Downing, 
 12 B. Monr. 44; Morrison's Adm. . Tenn. Ins. Co.. 3 Benn. (Mo.) 262 ; 
 Bennett v. Buchanan, 3 Porter (Ind.) 47 ; and see Barnett v. Reed, 51 
 Penn. St. 194 ; Hoover v. Epler, 52 Id. 522 ; yet when his land is extended
 
 CONTRIBUTION AND EXONERATION. 543 
 
 Another instance of contribution occurs where mort- 
 gages, renewed fines, or other encumbrances, require 
 discharge, and the property bound by them is not abso- 
 lutely vested in a single person ; e. g., where different 
 parcels of land are included in the same mortgage, and 
 are afterwards sold to different owners, or where a mort- 
 gage 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.^) 1 And although the 
 
 (/) White v. White, 9 Ves. 554 ; Bulwer v. Astley, 1 Ph. 422 ; Jones . 
 Jones, 5 Hare 440 ; Averell v. Wade, LI. & G. 252 ; 3 Sug. V. & P. 435-6. 
 
 on execution, it is sufficient, though without payment : Lord v. Staples, 3 
 Foster (N. H.) 448. Partial payments give no right of subrogation: 
 Grove i: Brien, 1 Md. 439 ; Neptune Ins. Co. v. Dorsey, 3 Md. Ch. 334 ; 
 Kyner v. Kyner, 6 Watts 221 ; Gannett v. Blodgett, 39 N. H. 150 ; though 
 the surety acquires an interest in the securities to that extent: Grove #. 
 Brien, ut sup. Where the principal debtor is insolvent, however, his 
 surety may proceed, before paying the debt, against the principal for in- 
 demnity, or to subject particular assets to the payment of the debt: Polk 
 r. Gallant, 2 Dev. & Bat. Ch. 395 ; Pride v. Boyce, Rice Eq. 275 ; Washing- 
 ton v. Tait, 3 Humph. 543 ; Stump v. Rogers, 1 Ham. (Ohio) 533 ; Ross v. 
 Clore, 3 Dana 193 ; Bishop v. Day, 13 Verm. 81 ; Hatcher . Hatcher, 1 
 Rand. 53 ; Daniel v. Joyner, 3 Ired. Eq. 513 ; Taylor v. Heriot, 4 Dessaus. 
 227 ; Williams v. Heline, 1 Dev. Ch. 151 ; Tankersley v. Anderson, 4 
 Dessaus. 44; McConnell v. Scott, 15 Ohio 401 ; Laughlin v. Ferguson, 6 
 Dana 111. See Henry v. Compton, 2 Head 549. So, on the same princi- 
 ple, where the principal is dead, the surety may file a bill quia 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 tne 
 administration of the estate. The creditor, however, must be made a 
 party : Stephenson v. Taverners, 9 Gratt. 398. 
 
 1 See Thomas . Hearn, 2 Porter 262; Chamberlayne v. Temple, 2 Rand. 
 384 ; Hays r. Wood, 4 Id. 272 ; Dupuy v. Johnson, 1 Bibb 562 ; Poston v. 
 Eubank, 3 J. J. Marsh. 34 ; Morrison v. Beckwith, 4 Monr. 76 ; Williams
 
 544 ADAMS'S DOCTRINE OF EQUITY. 
 
 creditor himself is not bound by this equity, but may pro- 
 ceed against whom he will, yet if he wilfully render its 
 
 v. Craig, 2 Ed. Ch. 279 ; Aiken v. Gale, 37 N. H. 501. But where there 
 are several purchasers in succession at different times, of parcels of a lot 
 bound by a judgment er mortgage, there is no equality, and no case for 
 contribution between the purchasers. "If, for instance, there be a judg- 
 ment 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 in- 
 stance, with the debt, as against B., as well as against A. ; and, if it 
 should prove insufficient, 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. Ch. 235. In that case A. purchased a lot of 
 land, which with several others, was subject to a judgment. B. after- 
 wards purchased the residue of the lots so encumbered, and having pur- 
 chased the prior judgment in the name of another, caused A.'s lot to be 
 sold, and became the purchaser. It was held that A. was entitled to have 
 the judgment satisfied out of the lots sold to B. ; and that, on application 
 to the court, the sale under the judgment would have been stayed. But 
 the plaintiff's application being made as much as four year after the sale, 
 the title was not disturbed, but B. was compelled to pay to A. the amount 
 for which A.'s lot was sold. The same equity holds not only as between 
 several purchasers, but applies where the owner of the land thus bound 
 gives thereon several mortgages of different date : Schryver 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 Id. 300 ; Patty v. Pease, 8 Id. 277 ; Gill v. 
 Lyon et al., 1 Johns. Ch. 447; Mevey's Appeal, 4 Barr 80; Rathbone v. 
 Clarke, 9 Paige 648 ; Shannon v. Marselis, Saxton 413 ; Woodruff v. De- 
 pue, 1 McCart. 168 ; Britton v. Upkyke, 2 Green Ch. 125 ; Wikoffw. Davis. 
 3 Id. 224 ; Stanley v. Stocks, 1 Dev. Ch. 314, and note to p. 317 ; Stoney 
 0. Shultz, 1 Hill Ch. 464, 5QP ; Thompson v. Murray, 2 Id. 204 ; Conrad v. 
 Harrison, 3 Leigh 532 ; McClung v. Beirne, 10 Id. 394 ; Nailery. Stanley, 
 10 S. & R. 450 ; Zeigler v. Long, 2 Watts 205 ; Pallen v. Bank, 1 Freem. 
 Ch. 419 ; Agric. Bk. v. Pallen, 8 Sm. & Mar. 357 ; Com. Bank v. Western 
 R. Bank, 11 Ohio 444 ; Gary . Folsom, 14 Ohio 365 ; Holden v. Pike, 24 
 Maine 427 ; Cushing v. Ayer, 25 Id. 383 ; Brown e. Simons, 44 N. H. 475 ; 
 Cowden's Estate, 1 Penn. St. 267; Becker v. Kehr, 49 Id. 223; Gate v. 
 Adams, 24 Verm. 70 ; Lyman v. Lyman. 32 Id. 79 ; Sheperd v. Adams, 32 
 Maine 65 ; Jones r. My rick, 8 Gratt. 180 ; Winters v. Henderson, 2 Halst.
 
 CONTRIBUTION AND EXONERATION. .~>4-") 
 
 enforcement impossible, as by discharging one of several 
 coparceners, he cannot proceed for the whole debt against 
 the others, but at the most can only require from them 
 
 Ch. 31 : Johnson r. Williams, 4 Minn. 268 : Mobile Ins. Co. v. Huder, 35 
 Ala. 717 : Ogden v. Glidden, 9 Wis. 46 ; Hunt c. Mansfield. 31 Conn. 488 ; 
 Cooper c. Bigly, 13 Mich. 463 ; Hoy v. Bramhall, 4 Green (N. J.) 74, 563 ; 
 State v. Titus, 17 Wis. 241 ; Meng v. Houser, 13 Rich. (S. C.) Eq. 210; 
 Iglehart r. Crane, 42 111. 261 : McKinney r. Miller, 19 Mich. 142. This 
 doctrine seems to have originated with the Xew York cases above cited, it 
 not having previously been acted upon in cases susceptible of its applica- 
 tion. See Stevens v. Cooper, 1 Johns. Ch. 425 ; Cheesebrough v. Millard, 
 1 Id. 409. Xor formerly in Virginia: Beverly r. Brooke. 2 Leigh 425. And 
 in one or two states the rule is repudiated. See Jobe v. O'Brien, 2 Humph. 
 34 ; Dickey r. Thompson, 8 B. Monr. 312. And see Parkinan . Welch, 
 19 Pick. 231, 238 ; Green r. Ramage, 18 Ohio 428 ; Barney v. Myers, 28 
 Iowa 472. The rule that purchasers are liable to contribute in the inverse 
 order of their purchases, to the discharge of a paramount encumbrance, is 
 not applicable, however, where they take expressly subject to the encum- 
 brance, and it forms a part of the purchase-money : see Briscoe v. Power, 47 
 111. 447. Therefore, in Pennsylvania, where by statute, a mortgage is not 
 discharged at sheriffs 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 r. Koons, 20 Penn. St. 222. 
 
 Xor is the doctrine applicable to one who has only paid part of the pur- 
 chase-money, for he is liable to contribute to the extent of the unpaid 
 balance : Beddow v. Dewitt, 43 Penn. St. 326. 
 
 In Sheperd v. Adams, 32 Maine 65, it was held that the only remedy, of 
 the subsequent purchaser, was in equity, and that no action of assumpsit 
 could be brought in such case. 
 
 The rule will not be so applied as to affect the statutory priority of the 
 United States: U. S. . Duncan, 12 111. 523. 
 
 Justice Story, in his Corns. Eq. Jurisp., s. J233 A, refers to English 
 authorities in support of the position, that even in the case of successive 
 purchasers or encumbrancers, the original encumbrance ought to be ap- 
 portioned 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 Aldrich . 
 Cooper, 2 Lead. Cas. Eq. 56, agrees with Judge Story in his strictures on 
 the rule. See that note, for a discussion of the subject. 
 35
 
 546 ADAMS'S DOCTRINE OF EQUITY. 
 
 their respective shares, (m) 1 If the burden has been 
 already discharged by one of the parties liable, he will be 
 entitled to contribution from the rest, unless he has shown 
 an intention to exonerate the estate. But if his interest 
 is that of tenant - in tail in possession, and consequently 
 convertible at his option into an absolute estate, a pre- 
 sumption arises that he so intended. (n) 
 
 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 
 
 (m) Stirling v. Forrester, 3 Bligh. 0. S. 575, 590. 
 
 (n) Wigsell v. Wigsell, 2 S. & S. 364 ; Burrell v. Egremont, 7 Beav. 205 ; 
 Faulkner v. Daniel, 3 Hare 199, 217. 
 
 1 When a judgment or a mortgage is a lien on several lots of land owned 
 by different persons, and the judgment creditor or mortgagee releases one 
 of the subsequent purchasers, his lien upon the remaining lots "will be di- 
 minished by the value of the lot released : Stevens v. Cooper, 1 Johns. Ch. 
 425; James v. Hubbard, 1 Paige 228; Paxton v. Harner, 11 Penn. St. 
 312 ; Guion v. Knapp, 6 Paige 35 ; Jones v. Myrick, 8 Gratt. 180; George 
 . Wood, 9 Allen 83 ; Stillman v. Stillman, 21 N. J. Eq. 126. 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 
 40 account for its value, and will be considered as paid to that extent : Fas- 
 sett v. Traber, 20 Ohio 540. See James v. Brown, 11 Mich. 25. But in 
 order to make the general rule applicable, the creditor must have actual 
 notice of the prior conveyances : Cheesebrough v. Millard, 1 Johns. Ch. 
 409; Guion v. Knapp, 6 Paige 35. See too, Lock v. Fulford, 52 111. 166. 
 Their registration is not notice, because it cannot appear in the line of title 5 
 along which the creditor is bound to look: Stuyvesant v. Hone, 1 Sandf. 
 Ch. 419; Taylor . Maris, 5 Rawle 51. In Lloyd v. Galbraith, 32 Penn. 
 St. 103, a creditor had a lien upon several tracts of land, some of which 
 were sold by the debtor. The creditor then levied upon and sold the 
 balance. It was held that a junior encumbrancer whose lien extended only 
 to the unsold tracts was not entitled to be subrogated to the paramount 
 creditor's lien against the tracts which had been aliened. As between the 
 original parties, the rule, of course, does not hold : any part of the mort- 
 gaged premises is bound for the payment of the whole debt : Coutant v. 
 Servoss, 3 Barb. S. C. 128. See Patty v. Pease, 8 Paige 277.
 
 OF MARSHALLING. 547 
 
 equity *arises are where a ship and cargo are in r*9 7-1-1 
 imminent peril, and a portion is intentionally sac- 
 rificed for the security of the rest, e. c/., where goods are 
 thrown overboard, or a portion of the ship's rigging cut 
 away, to lighten and save the ship, or the ship itself 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 common to all, and 
 the means by which it is averted, ought to be a common 
 burden. If, therefore, the ship and the residue of the 
 cargo are preserved by the sacrifice, the parties interested 
 in the ship, her freight, and the merchandise on board, 
 must make good ratable shares of the loss, proportioned 
 to the value which their own goods and the goods sacri- 
 ficed would have borne, after deducting freight, had they 
 safely reached the port of discharge. If, on the contrary, 
 the sacrifice is not intentionally made, but is damage in- 
 curred by violence or stress of weather, or if it prove un- 
 availing, 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 origi- 
 nally falls. The rates of contribution are generally settled 
 by arbitration, but the parties are not compellable to refer, 
 and may have recourse to an action at law or a suit in 
 equity.^) 1 
 
 The equity of marshalling arises where the owner of 
 property subject to a charge, has subjected it, together 
 
 (o) Birkley c. Presgrave, 1 East 220 ; Plummer v. Wildman, 3 M. & S. 
 482 5 Power v. Whitmore, 4 Id. 141 ; Simonds v. White, 2 B, &, C. 
 805 ; Hallett v. Bousfield, 18 Yes. 187 ; 2 Steph. Bl. 179 ; Smith's Merc. 
 Law 
 
 1 Sturgess v. Cary, 2 Curtis C. C. 59.
 
 548 ADAMS'S DOCTRINE OF EQUITY. 
 
 with another estate, to a paramount charge, and the es- 
 tate 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 mortgagee 
 is to redeem it, and then to tack it to his own debt; but 
 if it is only a charge payable out of the produce of the 
 estate, and not conferring on the paramount creditor a 
 f~*9791 "ght to *foreclose, an equity arises for marshal- 
 ling the security so that both creditors may, if 
 possible, be paid in full.Qt?) 1 The equity is a personal 
 
 (p) Aldrich v. Cooper, 8 Ves. 382; Titley v. Davies, 2 B. C. C. 393, 399. 
 
 1 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. (Ohio) 233; Russell v. Howard, 
 2 McLean 489 ; Findlay's Ex'r. v. U. S. Bank, 2 Id. 44 ; N. Y. Steamboat 
 Co. v. New Jersey Co., 1 Hopkins 460; Evertson v. Booth, 19 Johns. 486 ; 
 Fallen v. Agric. Bank, 1 Freem. Ch. 419, 424 j Kendall v. The N. England 
 Co., 13 Conn. 394-5 ; Lodwick v. Johnson, Wright (Ohio) 498 , Thompson 
 v. Murray, 2 Hill Ch. 210; Miami Co. v. U. S. Bank, Wright (Ohio) 249; 
 Williams . Washington, 1 Dev. Ch. 137 ; Dorr v. Shaw, 4 Johns. Ch. 17; 
 Trowbridge v. Harleston, Walk. Ch. 185 ; Goss v. Lester, 1 Wis. 43.; House 
 1-. Thompson, 3 Head (Tenn.) 512. 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 realizing it is prompt and efficient : Briggs 
 r. The Planter's Bank, Freem. Ch. 574; Dorr v. Shaw, 5 Johns. Ch. 17. 
 The rule will not be applied to defeat an equity of the former on either 
 fund, attaching prior to the existence of the latter's claim : McCormick's 
 Appeal, 57 Penn. St. 54; Jarvis v. Smith, 7 Abb. (N. Y.) Pr., N. S. 217. 
 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 dis- 
 posal of the disappointed creditors. The equity of the latter is not, indeed,
 
 OF MARSHALLING. 549 
 
 one against the debtor, and does not bind the paramount 
 creditor, nor the debtor's alienee for value. 
 
 The equity is not binding on the paramount 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 accidental 
 resort of the paramount creditor to the doubly charged 
 
 against the double creditor at all, but only against the common 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: Xeff's App., 9 W. & S. 36 ; Shunk's App., 2 Penn. St. 304; 
 Cornish P. Wilson, 6 Gill 299 ; Post v. Mackall, 3 Bland 486 ; U. S. v. 
 Duncan,'12 111. 523 ; Chapman v. Hamilton, 19 Ala. 121 ; Knowles v. Lawton, 
 18 Ga. 476. See also Lafarge Ins. Co. v. Bell, 22 Barb. 34 ; Building As- 
 sociation c. Conover, 1 McCart. 219; Lloyd v. Galbraith, 32 Penn. St. 103, 
 stated ante, note to page 270; and Warren e. Warren, 30 Verm. 530. 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, injury 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 
 --> -. Morrison v. Kurtz, 15 111. 193. A creditor holding security upon dif- 
 ferent kinds of property cannot be compelled to select that which is least 
 convenient and available to himself, in order to aid other creditors not se- 
 cured in the collection of their demands : Emmons v. Bradley, 56 Me. 333. 
 In X. Y. Steamboat Co. v. The N. J. Co., 1 Hopkins 460 ; Thompson r. 
 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 
 Pennsylvania: Morris r. Olwine, 22 Penn. St. 441 ; Kittera's Est., 17 Id. 
 413. This subject is discussed in the note to Aldrich r. Cooper, 2 Lead. 
 Cas. Eq. 56.
 
 550 ADAMS'S DOCTRINE OF EQUITY. 
 
 estate, and the consequent exhaustion of that security, 
 shall not enable him to get back the second estate, dis- 
 charged of both debts. If, therefore, the paramount 
 creditor resorts to the doubly charged estate, the puisne 
 creditor will be substituted to his rights, and will be satis- 
 fied out of the other fund, to the extent to which his own 
 may be exhausted. 1 And it seems that he may, on pro- 
 posing just terms, require the paramount creditor to pro- 
 ceed against the estate on which he has himself no claim. 
 His right, however, to do this is not an independent 
 equity against the creditor, but a mere ,incident of his 
 equity against their common debtor; and, therefore, if 
 the 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 cred- 
 itors, there is no equity to compel a resort to one rather 
 than to the other, or to alter the consequences of the .elec- 
 tion which may be made.^) 2 
 
 (3) Greenwood v. Taylor, 1 R. & M. 185 ; Mason v. Bogg, M. & C. 443 ; 
 Ex parte Kendal, 17 Ves. 514 ; Ex parte Field, 3 M., D. & D. 95. 
 
 1 Bank of Kentucky v. Vance, 4 Litt. 168 ; see also Eddy v. Traver, 6 
 Paige 521 ; Hawley v. Mancius, 7 Johns. Ch. 174 ; Hunt v. Townsend, 4 
 Sandf. Ch. 510 ; Ramsay's Appeal, 2 Watts 228 ; Cheesebrough v. Millard, 
 1 Johns. Ch. 409 ; Hastings' Case, 10 Watts 303 ; Averill v. Loucks, 6 
 Barb. S. C. 470; Besley v. Lawrence, 11 Paige 581 ; Hunt v. Townsend, 
 4 Sandf. Ch. 510 ; Fassett v. Traber, 20 Ohio 540 ; Dunn v. Olney, 14 Penn. 
 St. 220; U. S. Ins. Co. v. Shriver, 3 Md. Ch. 382; Nelson v. Dunn, 15 Ala. 
 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, 12 111. 523. 
 
 2 See Ayres v. Husted, 15 Conn. 504 ; Sterling v. Brightbill, 5 Watts 
 229 ; Ebenhardt's App., 8 W. & S. 327. See remarks on this case, in Dunn 
 v. Olney, 14 Penn. St. 2J9. 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, disappointed by the 
 joint creditors, have a right to subrogation : Gearhart v. Jordan, 11 Penn. 
 St. 331 Dunn v. Olney, 14 Id. 219 ; Neff v. Miller, 8 Id 347.
 
 OF MARSHALLING. 551 
 
 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 legis- 
 lature 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 estates; r ... 97 o- 1 
 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 that it was not proved that 
 the particular creditor could avail himself of the fund; 
 but Lord Eldon, in reviewing the cases, expressed con- 
 siderable 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 
 
 (r) Wright . Simpson, G Yes. 714.
 
 552 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 
 -" marshalling, are applied, as already noticed, in 
 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 
 paripassu or successively ; as, for example, where estates 
 subject to a charge descend to several heirs in different 
 lines of descent, or are given to several devisees, all the 
 heirs in the one case, and all the devisees in the other, 
 must contribute to the charge; 1 but. if there be both heirs 
 and devisees, the heirs can have no contribution from 
 
 (s) Averall r.'Wade, LI. & G. 252; Hamilton v. Royse, 2 Sch. & L. 315, 
 commented on in LI. & G. 263 ; Barnes v. Racster, 1 N. C. C. 401 ; Bugden 
 v. Bignold, 2 Id. 377. 
 
 1 When lands held by several devisees in the same will, are charged in 
 equity to satisfy a bond debt of the devisor, the decree should be against 
 the lands of all the devisees, or the money received or claimed in lieu there- 
 of, in ratable proportions, and not against the land of one only, with liberty 
 to that one to sue the others for contribution : Forster v. Crenshaw's Ex'rs.. 
 3 Munf. 514; See also Livingston v. Livingston, 3 Jolins. Ch. 148. As to 
 contribution among co-heirs, see Schermerhorn v. Barhydt, 9 Paige 28. 
 See, on the subject of contribution between legatees : Peeples v. Horton, 
 39 Miss. 406, where it was held under the circumstances, not to exist.
 
 OF MARSHALLING. 553 
 
 the devisees, because their own estate is first liable. 1 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 regu- 
 lar 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 person- 
 alty, and the question will subsequently arise, 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. () 2 
 
 (t) Supra, Administration of Assets. 
 
 1 See in agreement with the text, Livingston v. Newkirk, 3 Johns. Ch. 
 312, 320 ; Stires . Stires, 1 Halsted's Ch. 224 ; Adams . 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 pro- 
 perty. 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 in- 
 testate, is exonerated until the other is exhausted : Hall. Hall, 2 McCord's 
 Ch. 269, 302. See also Hassanclever v. Tucker, 2 Binn. 525 ; Knight . 
 Knight, 6 Jones Eq. (N. C.) 134. See, ante, 263, note. 
 
 2 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 Rawle 
 -~>< i. 254 : Mansell's Estate, 1 Parsons's Sel. Eq. Cas. 367. But see note to 
 page 204, ante. See also cited cases, note p. 261, supra ; and Townshend 
 r. Mostyn, 26 Beav. 72. But not so, where the encumbrance 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 mortgagor to pay the debt :
 
 554 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 
 ["#2751 
 
 J personalty, which then constituted the only fund, 
 
 had been wholly or partially exhausted by superior cred- 
 itors, who might have resorted to the real estate; viz., 
 by specialty creditors, by mortgagees, or by vendors 
 claiming a lien for unpaid purchase-money (w) 1 But the 
 
 (u) Aldrich v. Cooper, 8 Ves. 382, 389 ; Selby v. Selby, 4 Russ. 336. 
 
 Cumberland v. Codrington, 3 Johns. Ch. 229 ; Mitchell v. Mitchell, 3 Md. 
 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 oue, 
 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 burden, as 
 regards other devisees: Mason's Est., 1 Pars. Eq. 129 ; s. c. 4 Penn. St. 
 497. 
 
 1 See Alston v. Munford, 1 Brock. 266 ; Haydon v. Goode, 4 Hen. & 
 Munf. 460; Cralle v. Meem, 8 Gratt. 496. Where specialty debts of a de- 
 ceased 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 subse- 
 quently 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 has been 
 exonerated 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 have, in consequence of the payment of specialty creditors
 
 OF MARSHALLING. 555 
 
 necessity for this course has ceased under the late statute, 
 making real estate, whether freehold or copyhold, di- 
 rectly 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 
 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. 1 It cannot be directed as against other 
 
 () 3 & 4 Wm. 4, c. 104. 
 
 out of the personal estate of the deceased debtor, acquired a right of mar- 
 shalling his real estate, are not barred under the Statute of Limitations by 
 less than twenty years. 
 
 In Fordhain v. AVallis, 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 specialty 
 creditors. 
 
 1 Or subject to the vendor's lien for purchase-money which the person-
 
 556 ADAMS'S DOCTRINE OF EQUITY. 
 
 land devised or as against specific legatees. (w} 1 The man- 
 ner in which the exhaustion is caused is generally by N 
 r*97P~l P a y men ^ *f v creditors, but it may be also caused 
 by payment of legacies, where some legacies are 
 charged on both rjeal and personal estate, and others on 
 
 (w) Wythe 0. Henniker, 2 M. & K. 635 ; Mirehouse v. Scaife, 2 M. & C. 
 695 ; Sproule v. Prior, 8 Sim. 189 ; Strickland v. Strickland, 10 Id. 374 ; 
 3 Sug. V. & P. c. xviii., s. 2. [See Patterson v. Scott, 1 De G. Maci. & G. 
 531.] 
 
 alty is taken to pay: Birds v. Askey, 24 Beav. 618; Lilford v. Powys 
 Keck, L. R. 1 Eq. 347 ; where Wythe v. Henniker (infra note IP), was not 
 followed. Real assets descended will not be marshalled in aid of either a 
 general or residuary legacy : Walker's Estate, 3 Rawle 229. See also Hays 
 0. Jackson, 6 Mass. 149 ; Leigh 0. Savidge, 1 McCarter (N. J.) 124. Aliter, 
 if the legacy is pecuniary or specific : Mollan v. Griffith, 3 Paige 402 ; Wil- 
 cox 0. Wilcox, 13 Allen (Mass.) 252; but see Gerken's Estate, 1 Tucker 
 (N. Y. Surr.) 49. But in some cases, lands taken by descent seem to have 
 been charged even before what are, properly, general legacies. See Robards 
 0. Wortham, 2 Dev. Eq. 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 0. James, 3 Strob. Eq. 24-26, and Warley 
 0. Warley, 1 Bailey Eq. 397. See on this subject note, ante, p. 263 ; 
 Verdier 0. Verdier, 12 Rich. (S. C.) Eq. 138. 
 
 1 Livingston 0. Livingston, 3 Johns. Ch. 148, 158 ; McCampbell 0. Mc- 
 Campbell, 5 Litt. 92 ; Hoover 0. Hoover, 5 Penn. St. 351. Respecting the 
 relative rights of specific legatees and devisees, there is a diversity of de- 
 cision. The English rule, that if specific legacies have been applied to 
 pay specialty debts, the specific legatees are entitled to contribution against 
 the devisees of the realty, was upheld in Chase 0. Lockerman, 11 Gill. & J. 
 185. But other decisions exempt the devisees altogether, and render the 
 specific legatees first liable. See Miller 0. Harwell, 3 Murphey 194; 
 Warley 0. Warley, 1 Bailey Eq. 397 ; Okeson's Appeal, 59 Penn. St. 99. 
 See on this subject note, ante, p. 263. Since by the English Wills Act 
 a residuary devise comprises all the real estate the testator may be seised 
 of at the time of his death, and also all devises which lapse or fail, a general 
 pecuniary legatee has a right of marshalling against the residuary 
 devisee: Hensman 0. Fryer, L. R. 2 Eq. 627. Though there appears 
 to be some conflict of authority on the point : Robinson 0. Mclver, 63 N 
 C. 645.
 
 OF MARSHALLING. 557 
 
 the personal estate alone. 1 It will not, however, arise 
 unless the legacy which requires its aid was originally 
 chargeable on the personalty alone. If i originally af- 
 fected both real and personal estate, but has failed as a 
 charge on the realty by an event subsequent to the testa- 
 tor's death, e. g., by the death of the legatee before the 
 time of payment, there is no case for marshalling. (#) 
 
 If the exhaustion be caused by payment of simple con- 
 tract creditors under the statute, it may be questioned 
 whether the legatees can insist on marshalling. For the 
 statute merely declares the land assets to be admin- 
 istered in equity, and does not, therefore, give the cred- 
 itors an election between the funds, but compels them to 
 exhaust the personalty, before they can have recourse to 
 the land.O) 2 
 
 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 charita- 
 
 (z) Hanby r. Roberts, Amb. 127; Prowse v. Abingdon, 1 Atk. 482; 
 Pearce r. Lornan, 3 Yes. 135 ; 2 Jarm. on Wills 607. 
 (y) 3 & 4 Win. 4, c. 104. 
 
 1 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. Col- 
 lins, 9 Hare 656. 
 
 2 The correctness of this view is questioned. See AVhite and Tudors 
 Lead. Cas. Eq., vol. ii., part 1, p. 76, and it is now settled that legatees 
 are entitled to marshalling, as well where the exhaustion is caused by the 
 simple contract, as by the specialty creditors : Tombs v. Roch, 2 Coll. 499; 
 Fleming r. Buchanan. 3 De G., M. & G. 976 ; Patterson v. Scott, 1 Id. 
 531.
 
 558 ADAMS'S DOCTRINE OF EQUITY. 
 
 ble legacy, thus given, is void by law so far as it is paya- 
 ble out of the mixed personalty, such for example, as 
 mortgages and leaseholds ; and attempts have therefore 
 been made to throw the other legacies on that portion of 
 the estate, in order that the charitable legacy may be paid 
 in full out of the rest. The principle, however, of mar- 
 shalling does not here apply ; for the reason of the failure 
 is not that some prior claimant has appropriated the legiti- 
 mate fund, but that the fund given is in part illegal. The 
 Court, therefore, will not, either directly or indirectly, aid 
 the gift, but *will appropriate the estate as if no 
 legal objection existed, by charging the legacy on 
 both funds in proportion to their values ; and will declare 
 so much of the charitable legacy to fail, as would in that 
 way be payable out of the prohibited fund.^) 1 
 
 (z) Hobson v. Blackburn, 1 K. 273 ; Philanthropic Society v. Kemp, 4 
 Beav. 581 ; Sturge v. Dimsdale, 6 Id. 462. 
 
 1 See, accord, Wright v. Trustees of the M. E. Church, 1 Hoff. Ch. 202. 
 But where it is clear that the testator intended that charity legacies should 
 be paid out of the pure personalty, the assets will be marshalled, so as to 
 throw the other legacies on the personalty savoring of realty : Robinson v. 
 Geldard, 3 Macn. & Gord. 735.
 
 OF INFANCY. 559 
 
 ^CHAPTER VI. [*278] 
 
 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 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 in- 
 satnces protected by being vested in trustees with express 
 powers of management and application; in which qase 
 their conduct will be regulated under the ordinary juris- 
 diction over trusts. And if property be vested in a trus- 
 tee, the right of the guardian to the general custody of 
 the estate does not extend to the' property so vested, so 
 as to exonerate the trustee from seeing to its safety. 
 
 The guardianship of the person, during the father's 
 lifetime, resides in him ; and he is entitled in his parental 
 right to the custody and education of the infant, but not 
 to the custody of his estate. 
 
 The guardianship of the estate during the father's life-
 
 560 ADAMS'S DOCTRINE OF EQUITY. 
 
 time, and of both person and estate after his death, 
 f*97Q"l Belonged, at common law, to the guardian in 
 socage, where such a guardian existed; and in 
 default of a statutory guardian, still belongs to him. 
 But guardianship of this class exists only as an incident 
 of tenure, and is confined to cases where the legal estate 
 in hereditaments of socage tenure descends on the infant. 
 It is vested in the nearest of kin, whether the father or 
 a more remote relation, who cannot by descent have the 
 socage estate; and determines at the age of fourteen, or 
 according to another opinion, so soon after that age as 
 there is another guardian, either by election of the infant 
 or otherwise, prepared to succeed. With respect to the 
 property of the ward, the right of guardian in socage ex- 
 tends to all descended hereditaments, whether lying in 
 tenure or not; and he is said to have, not barely an au- 
 thority, but an actual estate, enabling him to -demise for 
 the duration of his- guardianship, or to occupy personally 
 for the ward's benefit. The extent of his authority over 
 the personal estate is doubtful; but Mr. Hargrave thinks 
 that the custody of the person must draw after it the 
 custody of every species of property for which the law 
 has not otherwise provided. 1 
 
 The guardianship in socage is the most important of the 
 common law guardianships; but not the only one. There 
 are five other guardianships, of more limited operation ; 
 viz., 1. By nature; which, like that in socage, is an in-' 
 
 " The guardianship in socage may be considered as gone into disuse ; 
 and it can -hardly be said to exist in this country, for the guardian must 
 be some relation by blood, who cannot possibly inherit, and such a case 
 can rarely exist :" Kent's Com., vol. ii., p. 223. " And as all the children, 
 male and female, equally inherit, with us ; the guardianship by nature, 
 would seem to extend to all the children, and guardianship by nurture, is 
 merged in the more durable title of guardian by nature :" Id. pp. 220, 221.
 
 OF INFANCY. 561 
 
 cident of tenure. This guardianship is of an heir appa- 
 rent only, and is vested in the ancestor whose heir the 
 infant i.s. It continues till twenty-one, and is confined to 
 the person. 2. For nurture ; which is of all the children, 
 and not only of the heir apparent. It belongs 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 
 d in the mayor and aldermen ; continues till twenty- 
 one as to males, and till eighteen or marriage as to females ; 
 and was originally of the person only, but subsequently 
 extended by Richard II. *to the lands and goods, 
 4. By 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 guar- 
 dian in socage. And it is said by Lord Coke, that in 
 certain cases the same thing may be done by an infant 
 iimler fourteen. 
 
 The guardianship by statute, which is now the most 
 important of all the guardianships, originates in the sta- 
 tute for abolishing tenures in capite.(a) Before that 
 statute a father, tenant in socage, could not have disposed 
 of the custody of his heir, for it belonged to the legal 
 guardian. But by the 8th section of that statute, the 
 father of an unmarried infant is enabled (without preju- 
 dice, however, to the custom of London) to appoint a 
 guardian by deed or will, whose appointment will be good 
 against all persons claiming as guardians in socage or 
 
 (a) 12 Car. 2, c. 24, s. 8. 
 36
 
 562 ADAMS'S DOCTRINE OF EQUITY. 
 
 otherwise. 1 The authority of the statute guardian con- 
 tinues till twenty-one, and he is entitled to the custody 
 of the person and of the real and personal estate, includ- 
 ing hereditaments acquired by purchase, with the same 
 authorities and remedies as guardian in socage.(#) 
 
 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, is 
 exercised by the Court of Queen's Bench on writ of habeas 
 corpus. The same writ is issuable out of the Court of 
 
 (&) 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. 
 
 1 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. R. C., vol. i., 240; Purdon's Penn. Dig., title 
 Wills ; Chase's Stat. Ohio, vol. iii., 1788. A father only, can appoint a 
 testamentary guardian of his children. The power does not extend to a 
 grandfather : Hoyt v. Hilton, 2 Ed. Ch. 202. Nor to a mother : Matter of 
 Pierce, 12 How. Pr. 532. The desire of the mother expressed in a will in 
 regard to the appointment of a guardian will be followed, where the father 
 died without appointing: In the matter of Turner, 4 Green (N. J.) 433. 
 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 Ch. 220. But the father's intention to appoint ought to be 
 very manifest : Id. ; and see Peyton v. Smith, 2 Dev. & Batt. Ch. 325 ; 
 Gaines v. Spann, 2 Brock. 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 de- 
 vise 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 forfeiture of the estate. An 
 acceptance, however, by the father, of a benefit, 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 ex- 
 posing the estate to forfeiture, or interfering with the intention of the tes- 
 tator ; and therefore where a stranger is thus appointed guardian, but the 
 guardianship is not expressly extended to the person, it will be confined to 
 the estate : Vanartsdalen v. Vanartstialen, 14 Penn. St. 384.
 
 OF INFANCY. 563 
 
 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) 1 
 
 The superintendent of the guardianship in respect of 
 the estate, so as to secure a due accounting by the person 
 *in possession, is by action of account at law, or 
 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 person 
 who not being a guardian, has occupied or taken the profits 
 of the land of an infant tenant in socage. 2 If the infant 
 be not tenant in the socage, the intruder is not liable to 
 account .at law, but will be compelled to account in 
 equity, (d) 
 
 The means of protection already enumerated, although 
 
 (c) Rex v. Greenhill, 4 A. & E. 624; Lyons v. Blenkin, Jac. 245, 254. 
 
 (d) Chamb. 518, 521 ; Blomfield v. Eyre, 8 Beav. 250. 
 
 1 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 in- 
 fant from illegal restraint, and if competent to form and declare an elec- 
 tion, will allow it to make such election : Matter of Wollstonecraft, 4 Johns. 
 Ch. 82; Foster v. Alston, 16 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. 
 
 2 Any stranger or wrongdoer 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. Hark- 
 ness, 1 Oilman 173 ; Hanna v. Spotts, 5 B. Monr. 362; Drury v. Conner, 
 1 Harris & Gill, 220; Van Epps . Van Deusen, 4 Paige 64; Chancy v. 
 Smallweed, 1 Gill 367 ; Wyllie v. Ellice, 6 Hare 505 ; Lennox v. Notrebe, 
 1 Hempst. 225 : Blomfield v. Eyre, 8 Beav. 250 ; and as a fiduciary, cannot 
 set up the Statute of Limitations : Goodhue v. Barnwell, ut sup. ; Thomas 
 . 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.
 
 564 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 patrice, 
 to be exercised by the Court of Chancery, for protection 
 of any infant residing either temporarily or permanently 
 within its jurisdiction. 1 The possession of property is not 
 essential to the v existence of this authority, though the 
 want of it may create a practical difficulty in its exercise, 
 by incapacitating the Court from providing for the infant's 
 maintenance, (e) 
 
 The mode of calling the jurisdiction into operation is by 
 filing a bill, to which the infant is a party. This consti- 
 tutes him a ward of Court; and, after he is once a ward, 
 
 (e) De Mannoville v. De Manneville, 10 Ves. 52-63 ; Wellesley v. Wel- 
 lesley, 2 Bl. N. S. 124 ; Johnstone v. Beattie, 10 Cl. & F. 42 ; Re Spence, 2 
 Ph. 247. 
 
 1 The several kinds of guardian have, in this country, become essentially 
 superseded in practice by the chancery guardians, and guardians appointed 
 by the Surrogates, Ordinary, or Orphans' Courts, Courts of Probate, or 
 other courts of similar character, having jurisdiction of testamentary 
 matters, in the various states. And still, where there exists a Court of 
 Chancery, the general jurisdiction over every guardian resides there. A 
 testamentary or statute guardian is as much under the superintendence of 
 the Court of Chancery, as the guardian in socage : Matter of Andrews, 1 
 Johns. Ch. 99 ; Ex parte Crumb, 2 Id. 439 ; and see Matter of Nicoll, 1 Id. 
 25 ; Preston v. Dunn, 25 Ala. 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 guardian- 
 ship and protection of the Court : Westbrook v. Comstock, Walk. Ch. 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 application to chancery by her next friend, she was de- 
 clared a ward of the court, and all conversation, intercourse, or corres- 
 pondence between her and the defendant to whom she had been married, 
 was forbidden under pain of contempt : Aymer v. Roff, 3 Johns. Ch. 49. 
 
 See, on the subject of the jurisdiction of Chancery over Infants, notes to 
 Eyre v. Countess of Shaftesbury, 2 Lead. Gas. Eq. 538.
 
 OF INFANCY. 565 
 
 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 peti- 
 tion without bill ; (/) and if the father is dead, the appoint- 
 ment of a guardian and an allowance for maintenance may 
 be obtained in the same way. But if the 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- 
 ber; *viz.: The 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 the sanction of the Court. 
 
 1. The ward must be educated under the superintend- 
 ence 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. 1 But leave will not be refused, 
 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. (Ji) 
 
 The manner in which the superintendence is exercised 
 differs according as there is or is not a subsisting guardian. 
 
 (/) Re Spence, 2 Ph. 247. 
 
 (g) 2 Dan. C. P. ch. 39. 
 
 (h) Campbell v. Mackay, 2 M. & G. 31 ; Johnstone v. Beattie, 10 Cl. & 
 F. 42 ; [see remarks on this case in Stuart v. Bute, 9 H. L. Gas. 440] : 
 Stephens v. James, 1 M. & K. 627 ; [see Dawson v. Jay, 3 De G., M. & G. 
 764.] 
 
 1 In Rochford v. Ilackman, 1 Kay 308, a ward of court who had en- 
 listed in the East India service, was ordered to be discharged on applica- 
 tion of his guardian, and notice to the East India Company. See also 
 Dawson v. Jay, 3 De G., M. & G. 764.
 
 566 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 (e) 1 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 inducement 
 to join some other person in the guardianship, who may 
 be responsible to the Court. (#) 2 
 
 (t) Talbot v. Shrewsbury, 4 M. & C. 673 ; Witty v. Marshall, 1 N. C. 
 C. 68. 
 
 (k) Johnstotie v. Seattle, 10 Cl. & F. 42 ; Wellesley v. Beaufort, 2 Russ. 
 1, 18. [See Lockwood v. Fenton, 1 Sm. & Giff. 73.] 
 
 1 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 Ap- 
 peal, 1 Ball. 136. See In re Newberry, L. R. 1 Eq. 431. 
 
 2 It is generally held in the United States that the rights, powers, and 
 duties of a guardian, like those of an administrator, are entirely local, and 
 cannot be exercised in other states : Morrell v. Dickey, 1 Johns. Ch. 169 ; 
 Sabin v. Gilman, 1 N. H. 193 ; Armstrong v. Lear, 12 Wheat. 156 ; 2 Kent's 
 Coinm. 227, n. ; see also, Cox v. Williamson, 11 Ala. 343 ; but see, in South 
 Carolina, Ex parte Smith, 1 Hill Eq. 140 ; Ex parte Heard, 2 Id. 54 ; and. 
 see Townsend v. Kendall, 4 Minn. 412 ; Boyd v. Glass, 34 Ga. 253 ; Earl 
 v. Dresser, 30 Ind. 11. 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 case of Re Dawson, 2 Sm. &Giff. 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 recognised 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
 
 OF INFANCY. 567 
 
 If there is a father or legal guardian within the juris- 
 diction able and willing to act, the matter will be left to 
 his direction, subject to the general control of the Court. 1 
 But if there be a difference of opinion among several 
 guardians, a scheme will be directed. (7) 
 
 *If the father or legal guardian has volun- 
 tarily relinquished his right, 2 or has forfeited it 
 
 (I) Campbell P. Mackay, 2 M. & C. 31, 36. 
 
 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 Chan- 
 cellor 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 i\ 
 Fenton, 1 Sm. & Giff. 73. The subject under consideration was examined 
 in Stuart v. Bute, H. L. Cas. 440. In that case the infant was a young 
 marquis who was a subject of the United Kingdom, and who had a very 
 large property both in England and Scotland ; and the question was between 
 the English and Scotch guardians, as to which class the Crown, asparens 
 palrite, having full power to deal with the matter, should assign him. It 
 was held that the Scotch Court of Session had not displayed sufficient 
 consideration for the disposition which had been previously made by the 
 English Court of Chancery, and the authority of the latter tribunal was 
 accordingly upheld. The change of domicil after the jurisdiction had at- 
 tached, was considered to make no difference. See, also, in this case, the 
 remarks on Dawson c. Jay, supra. See, moreover, Xugent v. Vetzera, L. 
 II. -2 Eq. 703. 
 
 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 17"). 
 
 1 The Court will not discharge a guardian from his trust, on his petition, 
 unless for good reasons shown. Ex parte Crumb, 2 Johns. Ch. 439. See, 
 also, Ex parte De Graffenreid, 1 Harp. Eq. 107. 
 
 2 See, however, Reg v. Smith, 1 Bail Ct. Cas. 132 ; 16 Eng. L. & Eq. 221 . 
 and note ; People v. Mercein, 3 Hill, 399 ; Mayne v. Baldwin, 1 Halst. Ch. 
 4~A. An agreement for a separation deed in which the father was to 
 divest himself of authority over his children will not be enforced : Vansit- 
 tart v. Vansittart, 2 De G. & J. 249. But to this rule there may be some 
 exceptions ; see Swift r. Swift, 34 Beav. 266.
 
 568 ADAMS'S DOCTRINE OF EQUITY. 
 
 by misconduct tending to the infant's corruption, the Court 
 will restrain him from interfering, and will appoint some 
 other person to act as guardian in his place. Instances 
 of voluntary relinquishment occur where a third party 
 has given a benefit to the infant, on condition of being 
 allowed to appoint a guardian, and the father or legal 
 guardian has expressly or impliedly assented to that con- 
 dition, 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, however, a gift is de 
 facto made which will ultimately change the infant's con- 
 dition in life, the necessity of educating him suitably to 
 his expectations may induce some degree of interference 
 by the Court, (m) 1 Instances of forfeiture by misconduct 
 occur where the father or guardian inculcates vicious and 
 irreligious principles, or conduct, inconsistent with the 
 well-being of society; or where he manifests such princi- 
 ples in his own conduct, and brings the infant so in con- 
 tactjwith them, that corruption is likely to ensue. (n) 2 
 
 (m) Lyons v. Blenkin, Jac. 245, 255 ; Hill v. Gomme, 1 Beav. 540 , 5 M. 
 & C. 250; De Manneville v. De Manneville, 10 Ves. 52, 64. ' 
 
 (n) Shelley v. Westbrooke, Jac. 266, n.; Wellesley v. Beaufort, 2 Russ. 
 1 ; 2 Bl. N. S. 124 ; Ball v. Ball, 2 Sim. 35 ; Re Spence, 2 Ph. 247. 
 
 1 See note, ante, p. 280. 
 
 2 These principles were acted on in Cowls v. Cowls, 3 Gilm. 435 ; Comm. 
 v. Addicks. 2 S. & R. 174. See Swift v. Swift, 34 Beav. 266. 
 
 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 without 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
 
 OF INFANCY. 569 
 
 It is enacted by a late statute, entitled "An Act to 
 amend the law relating to the Custody of Infants," that 
 the Court of Chancery, upon the petition of the mother of 
 any infant, may make order for the access of the petitioner 
 to her infant children at such times and under such regu- 
 lations 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 against whom 
 adultery *has been established, by a judgment in 
 an action for criminal conversation at a suit of 
 her husband, or by the sentence of an Ecclesiastical Court, 
 is entitled to the benefit of the act.(o) It is also enacted 
 
 (o) 2 & 3 Viet. c. 54; Re Taylor, 10 Sim 291 ; 11 Id. 178; [see Re Hal- 
 liday's Est., 17 Jur. 56.] 
 
 been in fact acquitted thereof upon an indictment, the Court refused to per- 
 mit any sort of intercourse between him and them : Anon., 2 Sim. N. S. 
 54 ; Swift v. Swift, 34 Beav. 266. 
 
 In Thomas v. Roberts, 3 De G. & 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 tendency, 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. & R. 
 174. Mere peculiarities in religious belief will not justify the removal of 
 children from their father's custody: Curtis v. Curtis, 5 Jur. N. S. 1147. 
 Nor harsh treatment, unless it is such as will injure the children's 
 health : Id. 
 
 Fixed habits of intemperance constitute a sufficient reason for the removal 
 of a guardian : Kettletas v. Gardner, 1 Paige 488. So, speculation by the 
 guardian with the husband of his female ward, in relation to her estate, or 
 even the insolvency of the guardian and one of his sureties, may be sufficient 
 cause: In re Cooper, 2 Paige 34. On the other hand, it is no ground for 
 the removal of a guardian, that he has retained the funds of his ward, 
 instead of investing them, admitting his liability for interest : Sweet v. 
 Sweet, Speer's Ch. 309. See also on the subject, Disbrow v. Henshaw, 8 
 Cowen 349 ; In re Kennedy, 5 Paige 244.
 
 570 ADAMS'S DOCTRINE OF EQUITY. 
 
 by another statute, entitled "An Act for the care and 
 education of Infants who may be convicted of Felony," 
 that the Court of Chancery, on the application of any 
 person who may be willing to take charge of an infant 
 so convicted, and to provide for his maintenance and 
 education, may assign the custody of such infant during 
 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. (p) 
 
 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, ex- 
 cept 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 
 no inherent power to dispose of or alter the estate itself, 
 
 (p) 3 & 4 Viet. c. 90. 
 
 (j) Gardner v. Blane, 1 Hare 381.
 
 OF INFANCY. 571 
 
 except in cases of election or partition, where the dispo- 
 sition is demanclable *as of right by other par- r#ooc-i 
 r 1 and of the devolution on an infant of a 
 
 (r) Garmstone v. Gaunt, 1 Coll. 577 ; note to Gretton e. Hayward, 1 Sw. 
 413 : Simson v. Jones, 2 R. & M. 356, 374 ; Calvert v. Godfrey, 6 Beav. 97, 
 109 ; supra, Partition. 
 
 1 Rogers v. Dill, 6 Hill 415 ; but contra, Matter of Salisbury, 3 Johns. 
 Ch. 347 ; Williams v. Harrington, 11 Ired. 616 ; Ex parte Jewett, 16 Ala. 
 409 ; Huger v. Huger, 3 Dessaus. 18 ; Stapleton v. Langstaff, Id. 22. See 
 William's Case, 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 guar- 
 dian to the proper court, where it is necessary or proper for the infant's 
 benefit. 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; 
 Duckett v. Skinner, 11 Ired. 431 ; 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 Ala. 409; Morris v. Morris, 2 
 McCarter (N. J.) 239. 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 state, 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 : Snowhill v. Snowhill, 
 2 Green Ch. 20 ; Norris v. Clymer, 2 Penn. St. 277 ; Davis v. Johonnot, 7 
 Mote. 388 ; Spotswood v. Pendleton, 4 Call. 514; Dorsey . Gilbert, 11 Gill 
 & 3. 87 ; Nelson v. Lee, 10 B. Monr. 495 ; Powers v. Bergen, 2 Seld. 358 ; 
 even though the infants be non-residents : Nelson v. Lee, ut supra. 
 
 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 ; Bon- 
 sail's App., 1 Rawle 273 ; Kaufman v. Crawford, 9 W. & S. 131 ; Eckford 
 v. De Kay, 8 Paige 89 ; Sherry v. Sansberry, 3 Ind. 320 ; Ex parte Crutch- 
 field, 3 Yerg. 336 ; White r. Parker, 8 Barb. S. C. 48 ; Hassard v. Rowe, 
 ] 1 Id. 22. But it has been held that in case of imminent 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., 11 Penn. St. 36 ; Bow- 
 man's App., 3 Watts 369 ; though see Moore 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 
 Estate, 1 Penn. St. 326. In Jackson v. Jackson, 1 Gratt. 143, however, an 
 allowance for permanent improvements was made, it being obviously for 
 the infant's benefit.
 
 572 ADAMS'S DOCTRINE OF EQUITY. 
 
 mortgaged estate, where a sale is the only protection 
 against foreclosure. (Y) 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 minority, as constructively personal, (t) 1 
 
 The statutory powers of directing conveyances where 
 estates held on trust or mortgage, or subject to an equity 
 for specific performance, or liable as assets for payment 
 of debts, have devolved on an infant, have been already 
 noticed. (u) 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 
 
 (*) Mondey . Mondey, 1 Ves. & B. 223 ; Brookfield v. Bradley, Jac. 
 634 ; Davis . Dowding, 2 K. 245. 
 
 (t) Ashburton v. Ashburton, 6 Ves. 6 ; Ware v. Polhill, 11 Id. 257, 278 ; 
 Webb v. Lord Shaftesbury, 6 Madd. 100 ; Ex parte Phillips, 19 Ves. 118, 
 122. 
 
 (u) Supra, Trust ; Specific Performance ; Mortgage ; Administration of 
 Assets. 
 
 In Sweezy . 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 coining of age, whether to take it as realty 
 or personalty : and that such surplus, though invested in personal secu- 
 rities, 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 legis- 
 lature, 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. 473 ; March v. Berrier, 6 Ired. Eq. 524. 
 
 1 See, to this point, Huger v. Huger, 3 Dessaus. 18 ; Stapleton v. Lang- 
 staff, Id. 22; Dorsey v. Gilbert, 11 Gill & J. 87. See also, Hedges . Hiker, 
 5 Johns. Ch. 163 ; Mills v. Dennis, 3 Id. 370 ; Davison v. De Freest, 3 
 Sandf. Ch. 456 ; Snowhill v. Snowhill, 2 Green's Ch. 20 ; sed vide Roberts 
 v. Jackson, 3 Yerg. 77.
 
 OF INFANCY. 573 
 
 to Infants, Femes Covert, Lunatics, and Persons of Un- 
 sound Mind."(t>) 
 
 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 judi- 
 cial order. The powers conferred by the subsequent 
 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 of Chan- 
 cery is thus :i: empowered to correct, are the sur- 
 render 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 infant or feme 
 covert, if not under disability, might be compelled to re- 
 new ; the leasing of property belonging to an infant in fee 
 or in tail, or for an absolute leasehold interest; the enter- 
 ing into agreements on behalf of an infant under the Act 
 for augmenting the Maintenance of the Poor Clergy -,(w} 
 and the application for an infant's maintenance, of the 
 dividends on his stock, under which name is included 
 every fund, annuity, or security transferable in the books 
 of any company. The clauses which relate to lunatics 
 will be hereafter considered, (x) 
 
 In exercising its superintendence over a ward's estate, 
 the Court will make a reasonable allowance for mainte- 
 nance, provided the ward be entitled absolutely to a 
 present income, and the allowance be for his benefit. The 
 
 () 11 Geo. 4 & 1 Wm. 4, c. 65 ; 1 & 2 Viet. c. 62. 
 (w) 1 Geo. 1, c. 10. (x) Infra, Lunatics.
 
 574 ADAMS'S DOCTRINE OF EQUITY. 
 
 expenditure for this purpose is generally confined to in- 
 come; and is rarely permittted to break in upon capital. 
 But the capital may be applied for the advancement of the 
 child in life, e. g., for binding him apprentice, Or purchas- 
 ing him a commission in the ariny.Qy) 1 
 
 (y) Walker v. Wetherell, 6 Ves. 473; [Re Welch, 23 L. J. Ch. 344; 
 Nunn v. Harvey, 2 De G. & Sm. 301 ; Re Clarke, 17 Jur. 362; Re Lane, 
 Id. 219 ; William's Case, 3 Bland. 186 ; see Ex parte Hays, 3 De G. & Sm. 
 
 485] 
 
 1 In general, a guardian must keep his expenses on account of his ward, 
 within the income of his ward's estate, and he cannot encroach upon the 
 principal for this purpose, except upon the order of the Court, in such case, 
 upon his application: Davis v. Harkness, 1 Gilm. 173; Davis v. Roberts, 
 1 Sm. & Marsh. Ch. 543; Anderson v. Thompson, 11 Leigh 439; Prince 
 v. Logan, Speer's Ch. 29; McDowell v. Caldwell, 2 McCord Ch. 43; 
 Myers v. Wade, 6 Rand. 444 ; Villard v. Chovin, 2 Strob. Eq. 40 ; Holmes 
 v. Logan, 3 Id. 31 ; Hester v. Wilkinson, 6 Humph. 219 ; Bybee v. Tharp, 
 4 B. Mon. 313; Carter v. Rolland, 11 Humph. 339; Cornwise v. Bour- 
 gum, 2 Ga. Dec. 15; Frelick v. Turner, 26 Miss. (4 Cushm.) 393; Shaw 
 v. Coble, 63 N. C. 377 ; Beeler v. Dunn, 3 Head (Term.) 87 ; Gilbert v. 
 McEachen, 38 Miss. 469. It seems that increase in the value of the pro- 
 perty of the infant may be deemed income, and be appropriated by the 
 guardian to his support : Long v. Norcom, 2 Ired. Ch. 354. So a guardian 
 will be allowed for disbursements, although 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 : Forman v. Murray, 7 Leigh 412. And where 
 the health, or schooling, or other circumstances, render an increased 
 expenditure necessary, the guardian will be allowed such expenses out of 
 the principal of the ward's estate: see Hooper v. Royster, 1 Munf. 119; 
 Long v. Norcom, supra; Ex parte Potts, 1 Ash. 340; Ex parte Bostwick, 
 4 Johns. Ch. 100 ; Haigood v. Wells, 1 Hill's Eq. 59 ; Maclin v. Smith, 2 
 Ired. Eq. 371 ; Carter v. Rolland, 11 Humph. 339; Caffey v. McMichael, 
 64 N. C. 507. Even the principal of a vested legacy will be broken into 
 for the purpose of educating an infant legatee*: Newport v. Cook, 2 Ash. 
 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 pur- 
 chases 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. 575 
 
 The authority of the Court to allow maintenance is dis- 
 tinct 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 p^oi-i 
 by the gift, or even though there be an express 
 direction to accumulate. (0) 
 
 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 
 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 en- 
 titled, 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) 
 
 (z) Stretch c. Watkins, 1 Mad. 253. 
 
 (aj Ex parte Keble, 11 Ves. 606 ; Turner v. Turner, 4 Sim. 430; Can- 
 nings v. Flower, 7 Id. 523 ; Marshall v. Holloway, 2 Sw. 432, 436.
 
 576 ADAMS'S DOCTRINE OF EQUITY. 
 
 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.(&) And, on the same 
 principle, where -the infant is living with his father, or, 
 after the father's decease, with the mother, remaining un- 
 married, 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 pa- 
 rent's condition in life, without injury to his other child- 
 ren.^) 1 
 
 (b) Bruin v. Knott, 1 Ph. 572. 
 
 (c) Andrews v. Partington, 3 B. C. C. 60 ; Hoste v. Pratt, 3 Ves. 730 ; 
 Buckworth v. Buckworth, 1 Cox 80 ; Jervoise v. Silk, Coop. 52 ; Stocken 
 v. Stocken, 4 M. & C. 95 ; Thompson v. Griffin, Cr. & P. 317. 
 
 1 In England, by statute 23 & 24 Viet., c. 145, $ 26, trustees for infants 
 may apply the whole of the income of the trust fund for maintenance, 
 although there is another fund provided for the purpose, or another person 
 bound to provide. For a recognition and support of the English doctrine 
 in respect of a father-guardian'-e exclusive personal liability for main- 
 tenance, see Walker v. Crowder, 2 Ired. Ch. 478 ; Booth v. Sineath, 2 Strob. 
 Eq. 31 ; Chapline v. Moore, 7 Monr. 173 ; Myers v. Myers, 2 McCord's Ch. 
 255 ; Ellerbe v. The Heirs and Legatees of Ellerbe, 1 Speer's Ch. 328 ; 
 Dupont v. Johnson, 1 Bailey's Eq. 279; Van Valkinburgh v. Watson, 13 
 Johns. 480; Addison v. Bowie, 2 Bland Ch. 606; Jones v. Stockett, Id. 
 409, 431 ; Cruger v. Hey ward, 2 Dessaus. 94 ; Harland's Accounts, 5 
 Rawle 323 ; Matter of Kane, 2 Barb. Ch. 375 ; Beathea v. McColl, 5 Ala. 
 312 ; Sparhawk v. Buell, 9 Verm. 41 ; Walker v. Crowder, 2 Ired. Eq. 478 ; 
 Morris v. Morris, 2 McCarter (N. J.) 239; though this would not apply, 
 it seems, to a step-father : Gay . Ballou, 4 Wend. 403 ; Freto v. Brown, 4 
 Mass. 675 ; see Booth v. Sineath, 2 Strob. Eq. 31. For cases of a mother's 
 obligation, see Matter of Bostw.ick, 4 Johns. Ch. 100; Wilkes v. Rogers, 6 
 Johns. 566 ; Heyward v. Cuthbert, 4 Dessaus. 445 ; Thompson v. Brown, 
 4 Johns. Ch. 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 . Hughes, 1 Brown's Ch. C. 387 ; Whipple v. Dow, 2 Mass. 415 ; 
 Dawes v. Howard, 4 Mass. 97 ; Matter of Bostwick, 4 Johns. Ch. 100 ; 
 Heyward v. Cuthbert, 4 Dessaus. 445; Douglas v. Andrews, 12 Beav. 310; 
 Bruin v. Knott, 1 Phillips 573 ; Anderton v. Yates, 5 De G. & Sin. 202.
 
 OF INFANCY. 577 
 
 The manner of maintenance is by allowing a gross 
 annual sum proportioned to the age and rank, and to the 
 fortune *of the infant, without inquiring, unless 
 on special grounds, into the details of expendi- - ^ 
 ture. And in making such allowance, the principle of 
 looking to the infant's benefit may authorize an extension 
 beyond what is necessary for his personal maintenance ; 
 e. y., if he be an eldest child, and have brothers or 
 sisters unprovided for, because it is more for his benefit 
 that they should be brought up respectably, than that 
 money should be accumulated for himself, (d) 
 
 If moneys have been already expended on his main- 
 tenance by a stranger, an allowance may be made for 
 such past maintenance proportioned to the amount expend- 
 ed, and commencing from the period when the property 
 first vested. But an allowance for past maintenance will 
 not be made to the father, unless special grounds be 
 shown, (e) 1 
 
 (d) Wellesley c. Beaufort, 2 Russ. 1, 28. 
 
 (e) Re Mary England, 1 R. & M. 499 ; Ex parte Bond, 2 M. & K. 439 ; 
 Chaplin v. Chaplin, 3 P. AVms. 368 ; Bruin . Knott, 1 Ph. 572. 
 
 And the rule is being relaxed in this country as to the father: see New- 
 port v. Cook, 2 Ashm. 332 ; Matter of Kane, 2 Barb. Ch. 375. 
 
 \\ hen 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 v. Cook, Id. 
 337 ; Beathea v. McColl, 5 Ala. 312 ; Watts v. Steele, 19 Id. 656 ; Canni- 
 chael r. Hughes, 6 Eng. L. & Eq. 71. In some cases, allowances for past 
 maintenance have been made to the father : Corbin v. Wilson ; Newport . 
 Cook ; Carmichael v. Hughes, ut sup. So of the mother : Matter of Bost- 
 wick. 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. Hugh, ut supr. A direct benefit to 
 the father, not maintaining the child, will not be allowed : Re Stables, 21 
 L. J. Ch. 620. 
 
 1 As to allowance for past maintenance, see Matter of Kane, 2 Barb. 
 Ch. 375. 
 
 37
 
 578 ADAMS'S DOCTRINE OF EQUITY. 
 
 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^/) 1 
 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 pleasure. 
 If the infant be a female, the husband will be compelled, 
 by imprisonment, to make a proper settlement of her 
 property ; and will be excluded, either wholly or in pro- 
 portion to his criminality, from deriving any personal be- 
 nefit out of his wife's fortune, so far as can be done 
 without injury to her.(^/) 2 If the ward has attained 
 twenty-one, the marriage is not a contempt ; but so lon 
 as her property continues under the control of the Court, 
 
 I~*98Q1 re tain an *equity for a settlement, dis- 
 
 chargeable only by her personal consent in 
 Court, (gg) 
 
 The jurisdiction to settle the estate of a female infant 
 
 (/) Halsey v. Halsey, 9 Ves. 471 ; Long v. Long, 2 S. & S. 119. 
 
 (ff} Ball v. Coutte, 1 Ves. & B. 292 ; Re Walker, LI. & G. 299 : Hodgens 
 v. Hodgens, 4 01. & F. 323 j Birkett v. Hibbert, 3 M. & K. 227 ; Kent v. 
 Burgess, 11 Sim. 361. 
 
 (gg) Ball . Coutts, 1 Ves. & B. 292, 300 ; Long v. Long, 2 S. & S. 119 ; 
 Auston v. Halsey, 2 Id. 123 n. ; Hobson v. Ferraby, 2 Coll. 412. 
 
 1 It is, perhaps, the duty of a guardian to apply to the court to authorize 
 the marriage of his female ward, if she be "a ward of the court :" Shutt 
 0. Carloss, 1 Ired. Ch. 232, 241. In Tabb . Archer, 3 Hen. & Munf. 399, 
 it was held, that the marriage of infants or wards is entrusted by law to 
 the father or guardian ; and, consequently, settlements made by infants 
 through the father or guardian are binding. 
 
 8 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 
 DeG. & Sm. 161.
 
 OF INFANCY. 579 
 
 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. (h) 
 
 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 
 give consent to an infant's marriage, when the father is 
 dead, and there is no guardian and no mother unmarried ; 
 and also an authority to give such consent, when the 
 father is non compos, or the guardian or mother is non 
 compos or beyond seas, or unreasonably or from undue 
 motives withholds consent. (/) 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 knowingly 
 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 inno- 
 cent party, and the issue of the marriage ; or if both 
 parties are guilty, may secure it for the issue, with a 
 
 (h) Milner v. Harewood, 18 Ves. 259 ; Simson v. Jones, 2 R. & M. 365 ; 
 Saville v. Saville, 2 Coll. 721 ; [Field v. Moore, 25 L. J. Ch. 66.] 
 (i) 4 Geo. 4 c. 76, s. 16 and 17 ; Ex parte J. C., 3 M. & C. 471.
 
 80 ADAMS'S DOCTRINE OF EQUITY. 
 
 f*2QOT discretionary provision for *the offending parties, 
 having regard to the benefit of the issue of that 
 or of any future marriage, (k) 
 
 The jurisdiction to protect persons under mental inca- 
 pacity is of an analogous origin with that for protection 
 of infants ; (7) 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, (w) 1 
 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; 2 and lunatics, or persons 
 of unsound mind, who have had understanding but have 
 lost the use of it, either with or without occasional lucid 
 
 (A;) 4 Geo. 4, c. 76, s. 23, 24, 25 ; Attorney-General v. Mullay, 4 Kuss. 
 319 ; s. c. 7 Beav. 451 ; Attorney-General v. Sever, 1 Coll. 313. 
 
 (I) Sherwood v. Sanderson, 19 Ves. 280 ; Nelson v. Duncomb, 9 Beav. 
 211. 
 
 (m) Re Bariatinski, 1 Ph. 375. 
 
 1 The care and custody of the persons and estates of lunatics are provided 
 for in many of the states by local statutes. And the decisions cited in the 
 subsequent notes upon this branch must be taken, in part, as subject to this 
 remark, and introduced merely as instances of analogy to the doctrines of 
 the text. See on the subject of Chancery jurisdiction under this head, 
 L'Amoureux v. Crosby, 2 Paige 423 ; Matter of Wendell, 1 Johns. Ch. 
 600 ; Gorham v. Gorham, 3 Barb. Ch. 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 ; Dowell v. Jacks, 5 Jon. Eq. 
 417. 
 
 * 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 presumption, 
 until his mental capacity is proved on examination for that purpose : Brower 
 v. Fisher, 4 Johns. Ch. 441 ; see, also, Christmas . Mitchell, 3 Ired. Ch. 
 535, the question need not be submitted to a jury : Sproyer v. Richmond, 
 16 Ohio St. 455. So of a person deaf, dumb, and blind, without other 
 proof of mental incapacity : Re Biddulph's and Poole's Trust, 5 De G. & 
 Sm. 469.
 
 OF IDIOCY AND LUNACY. 581 
 
 intervals, and by reason of its loss have become incapable 
 of managing their affairs, (n) 1 The jurisdiction in idiocy is 
 of little practical importance, as it rarely happens that any 
 one is found to be an idiot a nativitate. But the jurisdic- 
 tion 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 re- 
 gular suit. In this respect, however, a material distinc- 
 tion 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 council, and 
 not to the House of Lords. The origin of this distinc- 
 tion seems referable to the fact that the Crown, in the 
 event of idiocy or lunacy, has not a mere authority to pro- 
 tect, 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 
 
 (n) 2 Steph. Bl. 529-531. 
 
 1 It is not every case of mental weakness 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 in- 
 capable 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: Id. ; see also, Matter of Mason, 3 Edw. Ch. 380; 
 Matter of Arnhout, 1 Paige 497. The only legal test of insanity is de- 
 lusion, and this consists in a belief of facts which no rational person 
 would believe : Matter of Forman, 54 Barb. (N. Y.) 274.
 
 582 ADAMS'S DOCTRINE OF EQUITY. 
 
 for his support, and the surplus is to be accounted for to 
 himself or his representatives. (<?) In either case there 
 is an interest vested in the Crown, and requiring for its 
 administration a special grant. The duty of such admin- 
 istration 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 
 to any other officer, his authority would cease with the 
 appointment of committees, (p) 1 
 
 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 accord- 
 ance witji the rule of law wherever a right of entry is 
 alleged in the Crown. 2 
 
 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 
 
 (o) Steph. Bl. 529-531. 
 
 (p) 2 Story on Eq., s. 1336, and notes ; Id. s. 1362-1365 ; Oxenden v. 
 Lord Compton, 2 Yes. Jr. 69, 71 ; 4 B. C. C. 231 ; Ex parte Griinstone, 
 Amb. 706; Re Fitzgerald, 2 Sch. & L. 431 ; Johnstone v. Beattie, 10 Cl. 
 & F. 42, 120 ; [Dowell v. Jacks, 5 Jones Eq. 417.] 
 
 1 But where persons of unsound mind, not found lunatics by inquisition, 
 are entitled to property which is in or under the administration of the 
 Court of Chancery, applications relating thereto may be entertained by 
 the Court in its ordinary jurisdiction. 
 
 2 See Matter of Runey Dey, 1 Stockt. 181.
 
 OF IDIOCY AND LUNACY. 583 
 
 without requiring an inquisition.^) 1 And by a recent 
 statute it is enacted, that where any person not found 
 lunatic by inquisition has been detained under the pro- 
 visions of the *Lunacy Acts, the Lord Chancellor r#oqo-i 
 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 in- 
 come.^) The regular course, however, is to issue a 
 commission under the Great Seal in the nature of a writ 
 de hmatico mqitirendo, to ascertain whether the party is 
 of unsound mind. The granting of such commission is 
 discretionary with the Chancellor, who in exercising his 
 discretion will look solely to the lunatic's benefit ; and 
 will not on the one hand grant a commission merely 
 because lunacy is shown to exist, nor refuse it on the 
 other because the motives of the applicant are sus- 
 picious.^) 
 
 The proceedings under the commission are regulated 
 by statute. (t) z Their general outline is, that a jury is 
 empannelled and sworn; the witnesses and the supposed 
 
 (q) Gillbee v. Gillbee, 1 Ph. 121 ; Nelson v. Buncombe, 9 Beav. 211 ; 
 Sherwood v. Sanderson. 19 Ves. 280. 
 
 (r) 8 & 9 Viet. c. 100, s. 95, 98 ; Orders of Dec. 1845. 
 
 (s} Ex parte Tomlinson, 1 Ves. & B. 57 ; Re J. B., 1 M. & C. 538 ; Re 
 Whittaker, 4 Id. 441 ; Re Webb, 2 Ph. 10 ; Re Nesbitt, Id. 245. 
 
 (t) 3 & 4 Wm. 4, c. 36; 5 & 6 Viet. c. 84, and 8 & 9 Viet. c. 100, s. 2. 
 [See also, 16 & 17 Viet. c. 70 ; 25 & 26 Viet. c. 36 ; and c. 111.] 
 
 1 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 Ch. 370, 
 373 ; Post r. Mackall, 3 Id. 486 ; Matter of Wendell, 1 Johns. Ch. 600 ; 
 Matter of Runey Dey, 1 Stockt. 181. 
 
 2 In New York", the Court of Chancery has the entire jurisdiction ever 
 cases of idiocy and lunacy, and the manner in which the question of lunacy 
 shall be tried is discretionary with the Court. The most satisfactory mode, 
 is said to be by issue made up and prepared for trial under the direction of 
 that Court: Matter of Wendell, 1 Johns. Ch. 600.
 
 584 ADAMS'S DOCTRINE OF EQUITY. 
 
 lunatic, if he thinks fit to be present, are examined j 1 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 insufficient at law, the inquisition may be 
 quashed and a new commission issued. If the return 
 untruly finds the party lunatic, it may be traversed by 
 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, (u) If 
 the lunatic subsequently recover, the commission may be 
 superseded; but for this purpose the lunatic must in 
 general be personally examined, and his sanity fully estab- 
 lished.^) 2 
 
 () Ex parte Roberts, 3 Atk. 6 ; Ex parte Hall, 7 Ves. 261 ; lie Holmes, 
 4 Russ. 182 ; Re Bruges, 1 M. & C. 278. 
 
 () Ex parte Holyland, 11 Ves. 10; Re Gordon, 2 Ph. 242. 
 
 1 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 Ch. 580 ; Matter of Whitenack, 2 Green Ch. 253 ; Hinchraan 
 v. Ritchie, Bright. N. P. 144 ; Case of Covenhoven, Saxton 19. But see 
 Medlock v. Cogburn, 1 Rich Ch. 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 proceeding after confirmation : Willis v. 
 Willis, 12 Penn. St. 159. 
 
 In Ex parte Richards, 16 Jur. 508, parties interested under a settlement 
 executed ten years previously, were allowed to attend a commission, the 
 object of which was to carry back the finding thirty years. 
 
 2 On proof that the lunatic had recovered his senses, a commission of 
 1 unacy was superseded : Ex parte Dray ton, 1 Dessaus. 144. On petition by 
 
 a lunatic to supersede a commission, the Court will direct an inquiry, and 
 report by a Master, as to the recovery, or direct the lunatic to be brought 
 into Court, to be examined by the Chancellor : Matter of Hanks, 3 Johns. 
 Ch. 567. Or he may traverse the inquisition, or have the question tried 
 on a feigned issue : Matter of McClean, 6 Johns. Ch. 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 partially, so as to enable him to make a
 
 OF IDIOCY AND LUNACY. 585 
 
 The right of traversing the inquisition is conferred 
 by "'statute.^) 1 By the common law, where a rs| . gcm 
 direct title of freehold appeared in the Crown by *- 
 matter of record, the subject was put to his petition of 
 right, and could not interplead with the King, either by 
 traversing the King's title, or by setting up in avoidance 
 a title of his own ; but he is now enabled to traverse 
 the inquisition and return, on obtaining leave by petition 
 to the Great Seal, (x) The proviso requiring leave from 
 the Great Seal, has occasioned doubts whether such leave 
 is not discretionary with the Court. But it is determined 
 
 (ic) 34 Edw. 3 ; 36 Edw. 3, c. 13 ; 8 Hen. 6, c. 16 ; 18 Hen. c. 6 ; 1 Hen. 
 8, c. 8 ; 2 & 3 Edw. 6, c. 8 ; 6 Geo. 4, c. 53. 
 
 (x) 2 Madd. C. P. 854 ; Eq parte Lord Gwydir, 4 Mad. 281. 
 
 will : Matter of Burr, 2 Barb. Ch. 208. Where a dissolution of a partner- 
 ship had been decreed in con sequence 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, ordered the whole fund to be paid out to him : Leaf v. Coles, 
 1 De G., M. & G. 417. 
 
 1 It is a matter of right that a person found a lunatic under an inqui- 
 sition, shall, if desirous, have a traverse of the inquisition : Ex parte Love- 
 day, 1 De G., M. & G. 275 ; Re Gumming, Id. 537 ; and so, it seems, as to 
 any party interested : Re Cummings, ut supr. The Lord Chancellor has, 
 nevertheless, a discretion to exercise, upon the application for the writ 
 being made to him, as to whether it ought to issue in the particular case. 
 But the court 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 ; such as the persons applying for the com- 
 mission ; 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., M. & G. 537.
 
 586 ADAMS'S DOCTRINE OF EQUITY. 
 
 that, if the applicant show a sufficient interest, the tra- 
 verse 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 & contract with him. If there be a rea- 
 sonable ground of traverse, the Court may in its discre- 
 tion allow funds out of the estate for trying it, and may 
 in the meantime suspend any further interference, (g] 
 
 On a return of non compos being made, and either sub- 
 mitted 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. 1 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) 2 The duty of the committee or receiver of the 
 estate is to manage the lunatic's property with care, 
 
 l~*2941 *^ bring i n an d P ass hi s accounts, and to pay 
 and invest the balances at such times as the super- 
 
 (y} Ex parte Hall, 7 Ves. 261 ; Sherwood v. Sanderson, 19 Id. 280 ; Re 
 Bridge, Or. & P. 338 ; Re Watts, 1 Ph. 512. 
 (z) Re Bridge, Cr. & P. 338. 
 (a) Ex parte Radcliffe, 1 J. & W. 619 ; Ex parte Fermor, Jac. 404. 
 
 1 Where the lunatic has lands or other property in the state of his so- 
 journ, although he is domiciled abroad, a commission must be issued in 
 such state to authorise control over the property : matter of Pettit, 2 Paige 
 174 ; Matter of Perkins, 2 Johns. Ch. 124 ; Matter of Ganse, 9 Paige 416 ; 
 Matter of Fowler, 2 Barb. Ch. 305. 
 
 1 See Matter of Roberts, 3 Johns. Ch. 43 ; Matter of Livingston, 9 Paige 
 440.
 
 OF IDIOCY AND LUNACY. 587 
 
 intending officer (called the Master in Lunacy) shall direct. 
 And he is required to give security by a bond with sure- 
 ties, and to satisfy the Master, on each occasion of passing 
 his accounts, that his sureties are living, and not bank- 
 rupt or insolvent,^) 1 
 
 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 re- 
 ferring 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,(<?) or 
 when the Lord Chancellor shall specially direct otherwise, 
 are transferred to the Commissioners, now termed the 
 Masters, in Lunacy. By the same orders the necessity 
 of a previous reference is in many instances dispensed 
 with, and an application to the Chancellor is only requi- 
 site to confirm the report, (d) 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 mainte- 
 nance. There is a similar authority to inquire and report 
 as to provisional management and maintenance, 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 
 
 (6) Orders of April, 1844. 
 
 (c) 11 Geo. 4 & 1 Wm. 4, c. 60. 
 
 (d) 5 & 6 Viet. c. 84 ; 8 & 9 Viet. c. 100, s. 2 ; Orders of October, 1842. 
 
 1 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 trans- 
 fer to him of the corpus of funds in England, to which the lunatic was en- 
 titled ; though it did not appear either that the lunatic was a Dutch sub- 
 ject, or that the curator had given security.
 
 588 ADAMS'S DOCTRINE OF EQUITY. 
 
 managing, settling, or letting the estate, or otherwise re- 
 specting the person and property ; to take from time to 
 time the committee's account; and to determine whether 
 any and which of the presumptive heirs or next of kin 
 shall attend at the cost of the estate on any 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 recognised interest in the lunatic's 
 property, but that they are most likely to possess infor- 
 mation respecting it, and to assist in its proper adminis- 
 tration^/) 
 
 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 be- 
 longing to infants, femes covert, lunatics, and persons of 
 unsound mind." (A) 
 
 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 requiring 
 the sanction of a judicial order. The powers conferred by 
 the subsequent clauses in the case of infants and femes 
 covert have been already stated. ({) The powers conferred 
 in the case of lunatics are to be exercised under the sanc- 
 
 (e) Orders of October, 1842, 10 to 15. 
 
 (/) Ex parte Whitbread, 2 Meriv. 99 ; Re Pearson, 1 Coop. Ch. Ca. 314. 
 
 (g) Supra, Trust; Mortgage. 
 
 (h) 11 Geo. 4 & 1 W m. 4, c. 65. 
 
 (i) Supra, Infants.
 
 OF IDIOCY AND LUNACY. 589 
 
 tion of the Lord Chancellor, intrusted under the sign 
 manual with the custody of lunatics. The acts which the 
 Lord Chancellor is thus empowered to direct, are the sur- 
 render 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 disabil- 
 ity, 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 property in which he has a lim- 
 ited estate ; the leasing of property belonging to a lunatic 
 in fee or in tail, or for an absolute leasehold interest ; the 
 entering into agreements on behalf of the lunatic under 
 the Act for augmenting *the Maintenance of the r#oqc-i 
 Poor Clergy ; () the making conveyances under 
 a decree for specific performance, where the contracting 
 party has become lunatic after his contract was made ; 
 the selling or charging a lunatic's estate for the purpose 
 of raising money to pay debts, encumbrances, and costs ; 
 the transfer and payment of a lunatic's stock and divi- 
 dends, 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 resid- 
 ing out of England, when such person has been declared 
 lunatic, and his personal estate has been vested in a cura- 
 tor according to the law of his place or residence. The 
 same act provides, that transcripts of inquisitions on com- 
 missions under the Great Seal of Great Britain may be 
 entered of record in Ireland, and acted on there ; and vice 
 versa, with respect to commissions under the Great Seal 
 of Ireland. 
 
 The principle on which the lunatic's estate is managed 
 is that of looking to the -lunatic's interest alone, and act- 
 It) 1 Geo. 1, c. 10.
 
 590 ADAMS'S DOCTRINE OP EQUITY. 
 
 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. 1 And if such 
 alteration be made, the property will devolve, on the 
 lunatic's death, in accordance with its altered character, 
 and not in accordance with that which it previously bore. 
 It is otherwise, as we have seen, in the case of an infant; 
 for an infant has different powers over real and personal 
 estate ; and is entitled, for his own sake, independently 
 of any supposed equity between his real and personal 
 representatives, to be protected from any conversion of the 
 one into the other. The Court, therefore, in ordering the 
 conversion to be made, will add a declaration that, while 
 F*2971 *^ e m i nor ity lasts, the converted property shall 
 retain in equity its original character. A luna- 
 tic stands on a different footing ; for at the instant of a 
 lucid interval he has precisely the same power of dispo- 
 sition 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 understood with this guard, 
 that nothing extraordinary is to be attempted ; e. g., 
 
 1 Accordingly, in the Matter of Salisbury, 3 Johns. Ch. 347, it was held 
 that in the management of a lunatic's estate the interest of the lunatic is 
 more regarded than the contingent interest of those who may be entitled 
 to the succession ; and the court, if it be for the interest of the lunatic, may 
 direct real estate to be converted into personal, or personal into real. Thus 
 it may direct timber standing to be sold. As to its power to order an ex- 
 change of any portion of the estate, see Matter of Heller, 3 Paige 199 ; In 
 re Livingston, 9 Id. 440 ; Matter of Drayton, 1 Dessaus. 136.
 
 OF IDIOCY AND LUNACY. 591 
 
 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. (I) 
 
 The same principle of looking to the lunatic's advan- 
 tage alone is pursued in fixing the amount of the main- 
 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. </., 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 assistance 
 to them.(m) 1 
 
 If after due allowance for the lunatic's maintenance, 
 there is still a disposable surplus of his estate, such sur- 
 plus 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 re- 
 
 (Z) Oxenden v. Lord Compton, 2 Ves. J. 69 ; Ex parte Phillips, 19 Id. 
 118 ; Ex parte Digby, 1J. & W. 620; He Badcock, 4 M. & C. 440. 
 
 (m) Ex parte Whitbread, 2 Mer. 99 ; Re Blair, 1 M. & C. 300 ; Re Drum- 
 mond, Id. 627 ; Re Carysfoot, Cr. & P. 76 ; Edwards . Abrey, 2 Ph. 37 ; 
 Re Thomas, Id. 169 ; Re Clarke, Id. 282 ; [In re Frost, 5 Ch. Law R. 
 699.] 
 
 1 The court has power out of the surplus income of the estate of a luna- 
 tic, to provide for the support of persons not his next of kin, and whom the 
 lunatic is under no legal obligation to support, as e. g., persons whom he 
 had adopted as children : Matter of Heeney, 2 Barb. Ch. 326. See on the 
 subject of the maintenance to be allowed, Davies v. Davies, 2 De G., M. & 
 G. 51 ; Re Burbridge, 3 M. & G. 1 ; Eckstein's Estate, 1 Pars. Eq. 67 ; 
 Guthrie's App., 16 Penn. St. 321.
 
 592 ADAMS'S DOCTRINE OF EQUITY. 
 
 serving a sufficient maintenance, although the creditors 
 cannot be restrained from proceeding at law. (n} 1 
 
 *^ n ^ e death f the lunatic, the power of ad- 
 ministration is at an end, except as to orders 
 which have been. already made, or which are consequen- 
 tial on reports or petitions already made or presented. (0) 
 But the committee continues under the control of the 
 Court, and will be ordered on the application of the lu- 
 natic's heir to deliver up possession of the estate. 2 In 
 the case of an idiot, where the Crown has a beneficial 
 interest, an ouster le main must be sued ; and it has been 
 
 (n) Ex parte Dikes, 8 Ves. 79 ; Ex parte Hastings, 14 Id. 182. 
 (o) Ex parte McDougal, 12 Ves. 384; Rock v. Cooke, 1 Coll. 477. 
 
 1 In New York, the real estate of a lunatic may be sold for the payment 
 of his debts on a creditor's bill or on petition : Brasher v. Van Cortlandt, 2 
 Johns. Ch. 242, 400. But not till the personal estate is exhausted : In re 
 Pettit, 2 Paige 596. See also, Kennedy v. Johnson, 65 Penn. St. 451. 
 
 In Kentucky, it would seem, the Chancellor has no right to decree a sale 
 of a lunatic's estate for the payment of his debts: Berry v. Rogers, 2 B. 
 Monr. 308. Moreover, in New York, a suit at law cannot be brought 
 against a lunatic, under the care of a committee, without permission of the 
 court first obtained : Matter of Hopper, 5 Paige 489. 
 
 2 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 authorized 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 jurisdic- 
 tions ; nor will it adjudicate questions of right between opposing claimants : 
 Matter of Colvin, 3 Md. Ch. 278; Guerard v. Gaillard, 15 Rich. (S. C.) 
 L. 2?.
 
 OF IDIOCY AND LUNACY. 593 
 
 doubted whether, on the death or recovery of a lunatic, 
 the same course should not in strictness be followed. 
 The practice, however, is to restore possession by an 
 order of the Court, (p) 
 
 (p) Ex parte Fitzgerald, 2 Sch. & L. 439 ; Re Pearson, 1 Coop. Ch. Ca. 
 314. 
 
 38
 
 [*299] *BOOK IV. 
 
 OF THE FORMS OF PLEADING AND PROCEDURE BY WHICH 
 THE JURISDICTION OF THE COURTS OF 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. 1 
 
 It is obvious that in every Court some forms must 
 exist ; but the character of those forms is different at law 
 and in equity, in conformity with the different objects 
 which the two tribunals respectively contemplate. 
 
 The object of the common law Courts in their original 
 structure was to reduce the litigation to a single issue, 
 and to obtain from the appropriate tribunal a decision on 
 that issue ; from the Court on an issue of law, from a 
 
 1 See some remarks upon the changes introduced into Chancery Practice 
 and Procedure, in England and the United States, in the Preface.
 
 OF THE BILL. 595 
 
 jury on an issue of fact. By statutory enactment seve- 
 ral 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 
 statement by the plaintiff of his cause of action. 
 This is followed by the defence, either by demurrer, if 
 the declaration be insufficient in law, or by one or more 
 pleas, if it be untrue or incomplete in fact. If the decla- 
 ration be untrue, the form of pleading is by denial, dis- 
 puting 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, or pleas in denial, issues 
 of law or fact are necessarily raised; on pleas in confes- 
 sion and avoidance, the litigation is made dependent on the 
 new averments. These new averments, therefore, must 
 in turn be replied to by the plaintiff, and the pleadings 
 are continued on the same principle, each in turn super- 
 seding the rest, until all matter of confession and avoid- 
 ance 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 empannelled 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 opposite 
 party ; it is then summed up and the law explained by 
 the judge, and a separate verdict is given upon each 
 separate issue, and the verdict, when given, is without 
 appeal. There is, however, a discretionary power in the
 
 596 ADAMS'S DOCTRINE OF EQUITY. 
 
 Court, if the Judge has misstated the law, or if the ver- 
 dict 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 a 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 execution. 
 
 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 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 dis- 
 cretion 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 re- 
 duced to a single issue : and as all issues, whether of law 
 or fact, are decided, or adjusted for decision, by the 
 Court, it is not essential to keep them strictly distinct. 
 The rules, therefore, of 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, except the formal replication, must be sanction- 
 ed by the signature of counsel. 
 
 The commencement of a suit in equity on behalf of a 
 subject is by preferring a bill, in nature of a petition, to
 
 OF THE BILL. 597 
 
 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 mar- 
 ried 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. 1 If he be a lunatic or idiot, it is 
 
 1 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. "Wel- 
 lesley, 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 Lords Justices of Appeal, a married woman living 
 apart from her husband was allowed to sue in forma pauperis, 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 Lancaster, 18 Jur. 229. 
 
 A person of color, held in slavery, can sue in Chancery for his freedom 
 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 Beav. 146 ; 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 case of a deceased 
 partner, where the relation between the executor and the surviving part- 
 ners 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, however, 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 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 r. Milne, 9 Hare 141. In Stainton . Carron Co. the Court declined 
 to sustain a bill filed by parties interested in an estate against a joint stock
 
 598 ADAMS'S DOCTRINE OF EQUITY. 
 
 by the committee of his estate, or sometimes by the At- 
 torney-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 par- 
 take of its prerogative, or of those whose rights are under 
 its particular protection, as, for example, the objects of a 
 public charity, the complaint is preferred by the Attorney 
 or Solicitor-General, and the bill is not one of petition 
 r*021 or * com pl a i n tj but of information to the Court of 
 the wrong committed. 1 If the suit does not im- 
 mediately concern the rights of the Crown, its officers 
 generally depend on the relation of some person, termed 
 the relator, who is named on the record as such, and is 
 answerable for the costs; and if such relator has a per- 
 sonal ground of complaint, it is incorporated with the infor- 
 mation, and they form together an information and bill. 
 An information differs from a bill in little more than 
 name and form, and will therefore be considered under 
 the general head of bills, (aa) 
 
 (a) Mitf. on Plead. 24-30 ; 1 Dan. C. P. 72-132. 
 (aa) Mitf. on Plead. 21-24. 
 
 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 poriion 
 of a set of next of kin cannot sue another portion without an adminis- 
 trator as party, and it makes no difference 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 represen- 
 tative duly constituted should be a party : Creaser . Robinson, 14 Beav. 
 589. 
 
 1 It is no longer necessary that the Attorney-General shall be a party to 
 proceedings in equity, in cases of public nuisance. A municipal corpora- 
 tion is a proper party in such case, where the nuisance is within its limits : 
 Com. of Moyamensing v. Long, 1 Pars. Eq. 146.
 
 OF THE BILL. 599 
 
 An original bill or information consists of five principal 
 parts, viz., 1. The statement; 2. The charges; 3. The 
 interrogatories ; 4. The prayer of relief; and 5. The 
 prayer of process. 1 
 
 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, (b) 
 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 plaintiff, 2 
 and if necessary, of the next friend, committee, or rela- 
 tor,(c) and then narrating the case for relief. Its object 
 is to show the right to relief; it must state a consistent 
 case on behalf of all the plaintiffs, and must state it in 
 direct terms, and with reasonable certainty. 
 
 It must state a consistent case on behalf of all the 
 plaintiffs ; for if their claims are inconsistent, or any of 
 them have no claim, the misjoinder will be fatal to the 
 
 (6) 1 Dan. 339. (c) Id. 340. 
 
 1 The form of the bill is now much simplified in England (see the Pre- 
 face) ; and in Pennsylvania by the Rules of Equity Practice, adopted May 
 2~. 1865. 
 
 2 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 
 K ay, App. 23 ; Winnipiseogee Lake Co. r. Worster, 9 Foster 433. In New 
 York, however, the omission to state the complainant's addition or occupa- 
 tion is no longer a ground for demurrer : Gove r. Pettis, 4 Sand. Ch. 403. 
 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 citizen- 
 ship of all the parties, plaintiffs, and defendants. And see Dodge v. Per- 
 kins, 4 Mason 435.
 
 600 ADAMS'S DOCTRINE OF EQUITY. 
 
 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. (W) 1 
 
 *It must state the case in direct terms (e) and 
 with reasonable certainty ; 2 not necessarily with 
 
 (d) Cholmondeley v. Clinton, T. & R. 117; 2 J. & W. 134; King of 
 Spain v. Machado, 4 Russ. 2. '5; Bill v. Cureton, 2 M. & K. 503 ; Lambert 
 v. Hutchinson, 1 Beav. 277 ; Jacob u. Lucas, Id. 436 ; Davies v. Quarterman, 
 4 Y. & C. 257 ; Anderson v. Wallis, 1 Ph. 202 ; 1 Dan. C. P. 290-292. 
 
 (e) Stansbury v. Arkwright, 6 Sim. 481; Hammond v. Messenger, 9 
 Sim. 327, 355 ; [Champneys*v. Buchan, 4 Drew. 123.] 
 
 1 See Richardson v. McKinson, Litt. Sel. Cas. 320; Terrill v. Craig, 
 Halst. Dig. 223 ; Thurman v. Shelton, 10 Yerger 383 ; Mix v. Hotchkiss, 
 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 him- 
 self, cannot unite as plaintiffs ; and a bill containing an averment that 
 one of such plaintiffs is entitled, and if he is not the other is, cannot Tie 
 supported : Ellicott v. Ellicott, 2 Md. 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 centering 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 Id. 
 456 ; Dawson v. Lawrence, 13 Id. 543 ; Tilford v. Emerson, 1 A. K. Marsh. 
 483; Scrimeger v. Buckhannon, 3 Id. 219; Tilman v. Searcy, 5 Humph. 
 487 ; Morris v. Di'l>rd, 4 Sm. & M. 636 ; Wood v. Barringer, 1 Dev. Eq. 67. 
 
 2 A rigid and technical construction of bills is exploded : lloane, 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 apprised of 
 the essential inquiry, and be enabled to collect testimony to meet it: Kent, 
 J., in James t?. McKarnon, 6 Johns. 564. See Wilcox v. Davis, 4 Minn. 
 200. Every averment, 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 aver- 
 ments in other parts : Wright v. Dame, 22 Pick 55. Nor can the plaintiff
 
 OF THE BILL. 
 
 the same technical precision as at law, but with sufficient 
 precision to show that there is a definite equity. And if 
 
 rely upon the interrogatories to supply defects in the stating part of his 
 bill : Gowles c. Buchanan, 3 Ired. Eq. 374. The allegations must be 
 positive, and not by way of recital : Mclntyre v. Trustees of Union Col- 
 lege, 6 Paige 239, 251. When a judgment creditor seeks the aid of a Court 
 of equity to enforce the payment of his judgment, he must aver in his bill 
 that an execution has been issued, and has been returned unproductive. 
 A mere averment of insolvency will not be sufficient: Suydam v. The 
 North Western Ins. Co., 51 Penn. St. 398 ; Hendricks v. Robinson, 2 Johns. 
 Ch. 283 ; Brinkerhoff v. Brown, 4 Id. 671 ; McElwain v. Willis, 9 Wend. 
 548. The best test of what are proper averments of facts in a bill or 
 answer is whether they are such matters as a witness may be called upon 
 to prove, or the truth of which must be established by evidence, to enable 
 a Court to act ; if they are not, then such averments are merely principles 
 of equity, or some of those public facts of which the Court is bound to 
 take judicial notice without proof: Canal Co. v. Railroad Co., 4 Gill <fc J. 
 
 1 : see also, Shepard . Shepard, 6 Conn. 37 ; Lingan v. Henderson, 1 Bland 
 24'.'. !'>'> : Russ v. Hawes, 5 Ired. Eq. 18 ; Caton c. Willis, Id. 355 5 Salmon 
 v. Clagett, 3 Bland 134 ; Townshend e>. Duncan, 2 Id. 45 ; Fowler v. Saun- 
 ders, 4 Call 361 ; Yancy v. Fenwick, 4 Hen. & Munf. 423 ; Cruger v. Hal- 
 liday, 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. The bill should state a case 
 upon which, if admitted by the answer, a decree can be made : Perry v. 
 Carr, 41 N. H. 371. General allegations of fraud, in a bill where the 
 facts .stated do not make out a case of fraud, will not avail on demurrer : 
 Muirniac r. Thompson, 2 Wall. Jr. 209 ; Hamilton v. Lockhart, 41 Miss. 
 460 ; Hanson . Field, Id. 7 1 2. Fraud must be expressly alleged, how- 
 ever, in order to enable the complainant to rely on it as a part of his 
 case: Gouverneur r. Elmendorf, 5 Johns. Ch. 79; Thompson v. Jackson, 
 3 Rjftid. 504 : Booth c. Booth, 3 Litt. 57 ; Miller v, Cotten, 5 Ga. 346 ; 
 Sawyer v. Mills, 20 L. J. Ch. 80 ; Hayward . Purssey, 3 De G. & Sm. 
 399 ; Small v. Boudinot, 1 Stockt. 273 ; Moore v. Greene, 19 How. 69 ; 
 Bailey v. Ryder, 10 N. Y. 363. Though where the bill states with distinctness 
 and precision facts and circumstances which in themselves amount to fraud, 
 such an allegation totidem verlis is not absolutely necessary: McCalmont 
 r. Rankin, 8 Hare 1 ; Skrine v. Simmons, 11 Ga. 401 ; Kennedy v. Kennedy, 
 
 2 Ala. 571. See Smith v. Kay, 7 H. L. Cas. 790-763. 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
 
 602 ADAMS'S DOCTRINE OF EQUITY. 
 
 the equity depends on a title to property in the plaintiff, 
 the statement must show a sufficient title in point of law ; 
 e. ff. f the statement of a devise must allege a will in 
 writing, 1 the statement of a grant must allege a deed, 2 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 super- 
 
 him: Price 0. Berrington, 3 M. & G. 496 ; Eyre 0. Potter, 15 How. U. S. 
 56 ; Fisher v. Boody, 1 Curtis 211. It seems, however, that an unproved 
 statement of circumstances which would amount to fraud, without an ex- 
 press 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 . Cowles, 26 Ala. 612. But if the facts essential to the deter- 
 mination of the plaintiffs 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 defendant 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 v. Pierce, 12 Met. 
 329 ; see also, Many v. Beekman Iron Co., 9 Paige 188. So, in a bill for 
 dower, the widow is not presumed to know the precise nature of the hus- 
 band's title, and defective allegations in regard thereto may be aided by 
 the answer : Garten's Heirs v. Bates, 4 B. Monr. 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. Worchester R. R.Corp., 16 Pick. 512 ; Scrib- 
 ner v. Allen, 12 Minn. 148. 
 
 1 Where a bill is filed by persons in the character of legatees, and it 
 neither sets out in its body the contents of the will, nor has a copy of it 
 annexed, a demurrer by the defendant will be sustained, for the Court can- 
 not see that the plaintiffs are legatees: Martin v. McBryde, 3 Ired. Eq. 
 531 ; see also, Belloat v. Morse, 2 Haywood 157 ; Van Cortlandt v. Beek- 
 man, 6 Paige 492. 
 
 2 See King v. Trice, 3 Ired. Eq. 568.
 
 OF THE BILL. 603 
 
 added by statute, it is not essential, though usual to state 
 compliance with them^/) 1 
 
 It is not, however, requisite to state matters of which 
 the Court takes judicial notice, such as public acts of 
 Parliament, the general customs of the realm, and so 
 forth; although, for the sake of convenience, they are 
 often introduced. 2 
 
 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 
 
 (f) Wormald v. De Lisle, 3 Beav. 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 341, 364, 383-6, 411 ; Wai- 
 burn v. Ingilby, 1 M. & K. 61. 
 
 1 Thus in England, and most of the United States, it is not necessary ia 
 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 wri- 
 ting ; though in Georgia, the rule is otherwise : Logan c. Bond, 13 Ga. 192. 
 But if the objection appears on the face of the bill, a demurrer will lie: 
 Story Eq. Plead. g 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, 
 Yerg. 94 ; Humbert v. Rector of Trin. Ch., 7 Paige 197, 24 Wend. 595 ; 
 Maxwell P. Kennedy, 8 How. U. S. 210 ; Field v. Wilson, 6 B. Monr. 479 ; 
 Ingraham . Regan, 23 Miss. 213 ; Bank U. S. v. Biddle, 2 Pars. Eq. 31 ; 
 Pratt v. Xortham, 5 Mason 95 ; Williams v. Presb. Soc., 1 Ohio St. N. S. 
 478 ; Nimmo . Stewart, 21 Ala. 682 ; Mayne . Griswold, 3 Sandf. S. C. 
 464 ; Story Eq. PI. \ 484 ; contr. Bulkley v. Bulkley, 2 Day 363 ; Hickman 
 *. Stout, 2 Leigh 6. But the laches must appear distinctly by the bill 
 itself: Muir v. Trustees, 3 Barb. Ch. 477 ; Battle v. Durham, 11 Ga. 17. 
 And a general demurrer, where all the grounds of relief stated in the bill 
 are not barred by lapse of time will be overruled : Radcliff v. Rowley, 2 
 Barb. Ch. 23. 
 
 2 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 : Ibid.: Owings v. Hull, 9 Peters 607.
 
 604 ADAMS'S DOCTRINE OF EQUITY. 
 
 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. 1 
 The form adopted for this purpose is that of pretence 
 and charge ; viz., an allegation that the defendant pre- 
 tends, &c., stating the defence, and then proceeding thus : 
 " Whereas your orator charges the contrary io be true ; 
 and your orator charges that even if the said pretence be 
 true, yet that," &c., stating the new matter in avoidance. 
 
 r*04T means * ne *pl a intifF is enabled to state 
 
 the avoidance on the record, without admitting 
 the truth of the defence. Charges of this class are some- 
 times 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 generally the 
 safer course ; because by attempting to anticipate the 
 defence, a risk is incurred of misunderstanding its pur- 
 port, and sometimes of suggesting an objection, which the 
 defendant would otherwise have overlooked. 
 2. For sifting the truth of the defence. 
 
 1 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. Purmont, 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 : Stafford 
 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 rules 
 in the U. S. Courts (xxi.). In Pennsylvania all merely formal parts must 
 be omitted : New Equity Rules xvii.
 
 OF THE BILL. 605 
 
 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 otherwise 
 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. 1 The 
 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 evi- 
 dence, and will refer the subject to a Master for re-investi- 
 gation. In order to prevent this result, it is frequently 
 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 allegation of the 
 
 1 To this point see Russ v. Hawes, 5 Ired. Eq. 18 ; Dilly v. Heckrotte, 8 
 Gill & J. 171 ; Jackson's Assignees v. Outright, 5 Munf. 314 ; Boone v. 
 Chiles, 10 Peters 177 ; White v. Yaw, 7 Verm. 357 ; Crocker v. Higgins, 7 
 Conn. 342 ; Skinner v. Bailey, Id. 496 ; Hayward 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 ; Townsend v. Duncan, 2 Id. 45 ; 
 Anthony v. Leftwich, 3 Rand. 263 ; Morrison v. Hart, 2 Bibb 4 ; Lemaster 
 v. Burckhart, Id. 26 ; Bank U. S. v. Schultz, 3 Hamm. 62 ; Lovell v. Far- 
 rington, 50 Maine 239 ; Cainden, &c., R. R. v. Stewart, 4 Green (N. J.) 
 343.
 
 606 ADAMS'S DOCTRINE OF EQUITY. 
 
 equity, and may be followed by a charge of the specific 
 details. If the evidence be not of the fact, but of an 
 admission by the defendant, and especially if it be of a 
 mere verbal admission, it is still more important to charge 
 ^ * n ^ e kill- But the mere fact that the *ad- 
 mission has not been specifically stated or charged 
 does not render it inadmissible as evidence.^) 1 
 
 4. For obtaining discovery as to matter of detail, which 
 could not be conveniently introduced in the statement. 
 
 Charges of this class, like those of the preceding one, 
 originate in the plaintiff's right to confine his statement to 
 the fact constituting the equity, and to omit the evidence 
 by which it is proved; e. </., 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 con- 
 venient so to frame the statement. 
 
 A statement, however, of this general kind, although it 
 would let in evidence in its support, and would warrant an 
 interrogatory in general terms, e. g., whether the defend- 
 ant had not notice, or whether he did not encourage the 
 plaintiff, would not warrant minute interrogatories tend- 
 ing to prove the fact, e. g., whether he had not seen a 
 particular deed, or had not employed a particular person. 
 In order to render such interrogatories admissible, the 
 plaintiff must insert specific allegations, by which their 
 relevancy may be shown, and their propriety tested. 2 
 
 (ff] Earle v. Pickin, 1 R. & M. 547 ; McMahon v. Burchell, 2 Ph. 127. 
 
 1 Where a fact is put in issue in a bill, evidence of confessions, conversa- 
 tions, or admissions of the defendant, is receivable to prove the fact, al- 
 though such confessions are not expressly charged in the bill as evidence 
 of the fact: Smith v. Burnham, 2 Sumner 612; Jenkins v. Eldredge, 3 
 Story 183. See also, Trapnall v. Byrd's Adm'r., 22 Ark. 10. 
 
 2 A defect in the charging part of a bill cannot be supplied by a subse-
 
 OF THE BILL. . 607 
 
 And it is not unusual to make such allegation by way of 
 charge, so as to avoid encumbering 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 possession, 
 which, if, produced, would show the truth of the plaintiif '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 
 the statement, and might have been included in the 
 statement itself, but that for convenience sake they are 
 subsequently ^introduced, and are distinguished 
 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 these purposes. If any mat- 
 ter be alleged which is not material, whether as irrelevant 
 in toto or as being matter of which the Court will take 
 judicial notice, it is in strictness impertinent, and may be 
 
 quent 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. 543 ; Woodcock . 
 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
 
 608 % ADAMS'S DOCTRINE OF EQUITY. 
 
 struck out of the bill on application to the Court. 1 And 
 if it be criminatory of the defendant or of any other 
 person, it is also objectionable on the ground of scandal. 
 But provided it be material, however harsh ,the charge 
 may be, it cannot be treated as scandalous. It should 
 also be observed that, even if the statement be material, 
 yet excessive prolixity will be impertinent ; as, for in- 
 stance, if instead of giving the effect of a document, a 
 plaintiff, without any sufficient motive, were to copy it at 
 length. But if he has a sufficient motive, as, if the pre- 
 cise language of the document be a matter of dispute, or 
 if it be desirable to elicit from the defendant an admission 
 of its contents, the objection will not apply. (g} z 
 
 In many of the older precedents we find an allegation 
 
 [g] Byde v. Masterman, 1 Cr. & Ph. 272 ; 1 Dan. C. P. 331-338 ; Orders 
 of 1845, 38-42. 
 
 1 The court ought not at the commencement of the suit to treat as im- 
 pertinent matter, that which at the hearing may be found to be relevant : 
 Reeves v. Baker, 13 Beav. 436. 
 
 2 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 exami- 
 nation of the defendant for the purpose of obtaining evidence to establish 
 the complainant's case, or to counter-prove or destroy the defence which 
 the defendant may attempt to set-up : Hawley v. Wolverton, 5 Paige 522. 
 A few unnecessary words in a bill do not render the pleading impertinent. 
 And the Master should not allow an exception on account of a few unne- 
 cessary 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 hcec 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. Ch. 
 437. ' See also Woods v. Morrell, 1 Id. 103. Disparaging or abusive 
 words are not " scandalous " unless they are also impertinent : Henry v. 
 Henry, Phill. (N. C.) Eq. 334. 
 
 The proper remedy for verboseness is by motion to strike out : Williams 
 v. Sexton, 19 Wis. 42.
 
 OF THE BILL. 609 
 
 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 forms 
 originated in the once doubtful state of the 
 jurisdiction ; at the present time they are unnecessary, 
 and are fast falling into disuse, (/z) 1 
 
 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 relieved, and 
 may answer on oath such of the interrogatories after- 
 wards numbered and set forth, as by a note at the end of 
 the bill they are respectively required to answer. The 
 numbered interrogatories follow, and at the foot of the 
 bill a note is added, informing each defendant which of 
 them he must answer. 
 
 The old bills in Chancery contained no special 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 
 
 (h) Mitf. on Plead. 40-41. 
 
 * 
 1 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 ; Penn. xvii. The confederacy clause is insufficient, even on de- 
 murrer, to avoid the effect of lapse of time ; as an allegation of fraud it is 
 entirely inoperative and useless : Williams v, Presb. Soc., 1 Ohio St. N. 
 S. 505. 
 
 39
 
 610 ADAMS'S DOCTRINE OF EQUITY. 
 
 afterwards added to prevent misapprehension or evasion, 
 by inquiring not only as to the facts specifically alleged, 
 but as to circumstances of possible variation, e. ff., not 
 only whether the defendant had received a specified sum, 
 which might perhaps be evaded by a bare denial, but 
 "whether he or any, and what person by his order or for 
 his use had received that sum, or any and what part 
 thereof, or any and what sum." They were 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 prefaced by the 
 words " that the said defendant may answer the bill, and 
 more especially that he may answer the interrogatories." 
 This, however, was inconvenient in two respects : first, 
 because it compelled trustees, and other persons who were 
 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 
 r*3081 wnen s P ec i a l interrogatories had become *univer- 
 sal, defendants frequently did not look beyond 
 them, and occasionally got into difficulty by leaving un- 
 answered some statement or charge to which either 
 accidentally or intentionally, the plaintiff had omitted to 
 interrogate. 1 
 
 1 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 interroga- 
 tory in the bill " that the defendant may full answer make," &c., being 
 sufficient : Methodist Church v. Jacques, 1 Johns. Ch. 65 ; Neale v. Hag-, 
 thorp, 3 Bland 551 ; Hagthorp v. Hook, 1 Gill & J. 270 ; Tucker v. Che-' 
 shire R. R., 1 Fost. (N. II.) 29 ; Wootten v. Burch, 2 Md. Ch. 190; Ames 
 0. King, 9 Allen (Mass.) 258. He is bound to answer as to his know- 
 ledge, or if he has no knowledge of the facts, then as to his information 
 and belief: Bailey v. Wilson, 1 Dev. & Bat. Ch. 182, 187 ; Devereaux v. 
 Cooper, 11 Verm. 103. But a defendant is not bound to answer an inter-
 
 OF THE BILL. 611 
 
 These objections are remedied by the present regula- 
 tion, which exempts a defendant from answering any 
 statement or charge unless specially interrogated there- 
 to, (t') 1 
 
 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 subpoena. 
 After the statements and charges are completed, the bill 
 does not go on to say, " your orator therefore prays that 
 
 (t) Woodroffe v. Daniel. 10 Sim. 243 ; 1 Dan. C. P. 347-360. 
 
 rogatory not warranted by some matter contained in a former part of the 
 bill: Mechanics' Bank v. Lynn, 1 Peters 376 ; see also on this subject 
 McDonald v. McDonald, 16 Verm. 630 ; Morris v. Parker, 3 Johns. Ch. 
 297 ; Smith v. Lasher, 5 Id. 247 ; Pettit v. Candler, 3 Wend. 618 ; Phillips 
 . Prevost, 4 Johns. Ch. 205 ; Cuyler v. Bogert, 3 Paige 186 ; Utica Insur- 
 ance Co. v. Lynch, Id. 210; Davis v. Mapes, 2 Id. 105. Where suspi- 
 cious circumstances, fraud, and collusion are charged in a bill, the de- 
 fendant must expose not only his motives, but his secret designs, his 
 "unuttered thoughts:" Mechanics' Bank v. Levy, 1 Edw. Ch. 316. 
 Where a bill charges generally that certain deeds were fraudulent and 
 void, and also propounds special interrogatories based upon some of the 
 allegations only, the defendants have the right to answer all the allega- 
 tions, whether specially interrogated or not: Glenn v. Grover, 3 Md. 212. 
 
 1 A similar rule exists in the United States Courts (xl.) : see Wilson v. 
 Stolley, 4 McLean 272 ; and probably in some of the states 5 though see 
 contra, 1 Foster 440 ; Pitts v. Hooper, 16 Ga. 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 to the same extent as 
 he might by plea of discovery : Rule, xxxix. U. S. In Pennsylvania 
 (Rule xxxix.) specific interrogatories are not included in the bill, but are 
 filed separately. 
 
 Interrogatories for the examination of a plaintiff are on a different 
 footing from those for the examination of a defendant in this respect, that 
 a plaintiff is not entitled to discovery of the defendant's case, but a de- 
 fendant may ask any questions tending to destroy the plaintiff's claim : 
 Hoffman v. Postill, 4 Ch. App. L. R. 673. In other respects, the general 
 rule applies, that he who is bound to answer must answer fully.
 
 612 ADAMS'S DOCTRINE OF EQUITY. 
 
 he may have such and such relief," but it says, " to the 
 end therefore that the defendant may answer the inter- 
 rogatories, and that your orator may have the specified 
 relief, may it please your lordship to grant a "writ of sub- 
 poena, requiring the defendant to appear by a certain day, 
 and to answer the bill, and abide the decree of the Court." 
 The only thing which the Court is asked to do, or which 
 can be called a prayer is, " to grant the writ." The ob- 
 taining 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 state- 
 ment made in the outset of the present treatise, that the 
 writ of subpoena was that which from the first gave effi- 
 ciency to the Court, and which, in all the opposing peti- 
 tions, was the uniform subject of complaint. When the 
 writ of subpoena has issued, the defendant is obliged to 
 answer the interrogatories and to abide by any decree 
 which the Court may make ; and the statement in the bill 
 as to the particular relief required is a mere guide in 
 framing the decree. 
 
 The old bills in Chancery did not contain any special 
 statement of relief, but only what is called the 
 *prayer for general relief, viz., " that 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. 1 If it be 
 
 1 See Colton v. Ross, 2 Paige 396 ; Wilkin v. Wilkin, 1 Johns. Ch. Ill j 
 Allen v. Coffman, 1 Bibb 469 ; Brown v. McDonald, 1 Hill's Ch. 302 ; Barr
 
 OF THE BILL. 613 
 
 inconsistent it cannot be obtained j 1 and, therefore, if the 
 plaintiff doubt as to the proper relief, he may frame his 
 
 v. Haseldon, 10 Rich. Eq. 53 ; Kelly v. Paine, 18 Ala. 371 ; Thomas t>. Ell- 
 maker, 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 case 
 made by the bill, and not different from, or inconsistent with it: Chalmers 
 v. Chambers, 6 Har. & J. 29 ; Wilkin v. Wilkin, sup. : Franklin v. Osgood, 
 14 Johns. 527 : English v. Foxall, 2 Peters 595 ; McCosker v. Brady, 1 
 Barb. Ch. 329 ; Smith v. Trenton Falls Co., 3 Green Ch. 505 ; Danforth . 
 Smith, 23 Verm. 247 ; Hilleary c. Hurdle, 6 Gill 105 ; Dunnock . Dun- 
 nock, 3 Md. Ch. 140 ; Hitch r. Davis. Id. 266 ; Land v. Cowan, 19 Ala. 
 297 ; Cawley c. Poole, 1 Hem. & M. 50. 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 : Lingan v. Henderson, 1 Bland 251 ; Mc- 
 Glothlin v. Hemery, 44 Mo. 350; Kirksey c. Means, 42 Ala. 426 ; Milten- 
 berger v. Morrison, 39 Mo. 71 ; Slemmer's Appeal, 58 Penn. St. 155 
 although such relief could be had at law : Bullock v. Adams, 20 N. J. Eq. 
 367. 
 
 1 No relief can be granted under the general prayer, entirely distinct 
 from and independent of the special relief prayed : Thomason v. Smithson, 
 7 Porter 144 ; Foster v. Cook, 1 Hawks 509 ; Chalmers v. Chambers, 6 Har. 
 & J. 29 ; Sheppard v. Starke, 3 Munf. 29 ; Butler v. Durham, 2 Kelley 414 ; 
 Chapman v. Chapman, 13 Beav. 308 ; Dunnock . Dunnock, 3 Md. Ch. 
 140 ; Thomas v. Ellmaker, 1 Pars. Eq. 99 ; Howell . Sebring, 1 McCart. 
 84. Nor will the bill be amended so as to introduce a prayer for relief in- 
 consistent with the original prayer : Thomas v. Ellmaker, ut supr. ; Pen- 
 sacola R. R. r. Spratt, 12 Florida 26; sed vide Baileys. 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 Ala. 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 
 0. Gould, 15 Maine 82. Relief can only be granted upon the facts alleged 
 in the bill : Maher v. Bull, 44 111. 97 ; Carmichael v. Reed, 45 Id. 108. 
 
 If a bill contains no prayer, either for specific or general relief, it is con- 
 sidered as a bill of discovery merely, although the word "decree" is erro- 
 neously 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 pur- 
 pose of discovery only, such prayer makes it a bill for relief as well as dis- 
 covery, as to such defendant, and authorizes him to put in an answer con- 
 taining a full defence : Mclntyre v. Union College, 6 Paige 239 ; see Smith
 
 614 ADAMS'S DOCTRINE OF EQUITY. 
 
 prayer in the alternative, to have either one relief or the 
 other, as the Court shall decide. 1 In the case of chari- 
 ties and infants the proper directions will be given, with- 
 out regarding the language of the prayer, (k) 
 
 The principal rules as to this portion of the bill, are that 
 it should point out with reasonable 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 uncon- 
 nected with a great portion of the case. If the prayer is 
 objectionable on either of the two latter grounds, the bill 
 is termed multifarious. (/) 
 
 Multifario'usness of the first kind, sometimes called a 
 misjoinder of claim, is where the plaintiff has several 
 
 (&) Mitf. on Pleading 38, 39 ; 1 Dan. C. P. 360-366 ; Cruikshank v. 
 McVicar, 8 Beav. 106, 110. 
 (1) 1 Dan. C. P. 320-331 ; [Story's Equity Pleading 271-286.] 
 
 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 dis- 
 covery : Southeastern R. R. Co. . Submarine Telegraph Co., 17 Jur. 
 1044. 
 
 1 Upon the subject of bills framed with a double aspect, where the com- 
 plainant 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. Wat- 
 son, 11 Ala. 324; Colton . Ross, 2 Paige 396 ; Foster v. Cook, 1 Hawks 
 509 ; Lingan . Henderson, 1 Bland Ch. 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 en- 
 titled 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. Ch. 329 ; see also, Durling v. Hammar, 20 
 N. J. (Eq.) 220.
 
 OF THE BILL. 615 
 
 distinct claims against the same defendant, and prays 
 relief in a single suit in respect to all, 1 e. g., if a .corpora- 
 
 1 It is extremely difficult, if not impracticable, to lay down any general 
 rule on the subject of multlfariousness. The Court will be governed by 
 considerations of convenience in particular circumstances : Dunn v. Cooper, 
 3 Md. Ch. 46. The objection is discouraged where it might defeat the ends 
 of justice: Marshal v. Means, 12 Ga. 61. A Court of Chancery allows 
 distinct and separate causes of complaint between the same parties to be 
 joined in one suit, unless it is apparent that the defence will be seriously 
 embarrassed by confounding different issues and proofs in the litigation: 
 Nourse . Allen, 4 Blatchf. C. C. 376. A bill is multifarious, as the term 
 is generally understood, where there is a misjoinder of distinct and inde- 
 pendent causes of action : Gardiner, J., in Brady v. McCosker, 1 Comst. 
 221 : Carmichael v. Browder, 3 How. (Miss.) 252; Savage v. Benham, 17 
 Ala. 119; Mclntosh v. Alexander, 16 Ala. 87; Boyd . Hoyt, 5 Paige 65; 
 Marshal v. Means, 12 Ga. 61 ; and see Cauley v. Lawson, 5 Jones Eq. 132 ; 
 Allen v. Miller, 4 Id. 146 ; Tomlinson v. Claywell, Id. 317 ; Hughes v. 
 Cook, 34 Beav. 407 ; Bent c. Yardley, 2 Hem. & M. 602 ; Bouck v. Bouck, 
 L. K. 2 Eq. 19. Charging two sources of right by a plaintiff renders a bill 
 multifarious : Cumberland Valley R. R. Appeal, 62 Penn. St. 218. Un- 
 connected demands against different estates cannot be united in the same 
 bill, though the defendant is the executor in both : Daniel et al. . Mor- 
 rison's Ex'r., 6 Dana 186. So a bill for an account against two dis- 
 tinct partnerships, though one of the defendants is a partner in both, is 
 multifarious: Griffin v. Morrell, 10 Md. 364. So a bill combining indi- 
 vidual claims with claims in a representative capacity : Carter v. Treadwell, 
 3 Story 25 ; Bryan v. Blythe et al., 4 Blackf. 249 ; Davoue v. Fanning, 4 
 Johns. Ch. 199 ; Latting v. Latting, 4 Sandf. Ch. 31 ; May v. Smith, 1 
 Busbee Eq. 196. But a bill filed by one executor of two estates for direc- 
 tions, &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 Ala. 814. 
 
 Where, in addition to the charge of adultery, a bill charges the husband 
 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. Ch. 163 ; Mulock v. Mulock, 1 Edw. Ch. 14 ; Pomeroy v. Pomeroy, 
 1 Johns. Ch. 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 multi- 
 farious by the insertion therein of charges of unkind treatment or cruel
 
 616 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 coinpellable 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 p^q-i A-I 
 for hearing, and different decrees 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 convenience, only, is not abso- 
 lutely binding, and may be dispensed with if the claims 
 
 usage: Beach v. Beach, 11 Paige 161. A petition, containing in the same 
 count a prayer for equitable relief and also a prayer for rents and profits 
 and for possession of the premises, is bad for misjoinder: Young v. Cole- 
 man, 43 Mo. 179. A bill in equity, alleging that the defendant obtained a 
 policy of insurance from the company by fraud, and praying that a com- 
 mission may issue for the examination of witnesses, and that the policy 
 may be surrendered to be cancelled, and for other relief, is not multi- 
 farious: Commercial Ins. Co. v. McLoon, 14 Allen (Mass.) 351. 
 
 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. & M. Ch. 17; Varick v. Smith, 5 Paige 137; Mayne v. 
 Griswold, 3 Sandf. S. C. 4 14; Carpenter v. Hall, 18 Ala. 439 ; McCabe v. 
 Bellows, 1 Allen 269 ; Richards v. Pierce, 52 Maine 562. 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. 
 
 AVhere 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 Ala. 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 diverse 
 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 Ala. 813. 
 In a bill the various matters charged are like counts in a declaration, 
 which, if all good, although variant in their contents, but not misjoinders, 
 a judgment on either will be sustained : Cumberland Valley R. R. Appeal, 
 62 Penn/St. 218.
 
 OF THE BILL. 617 
 
 be so far connected that a single suit is more convenient, (m) 1 
 A converse principle 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 distributed whilst contemplating the continuance of 
 the partnership business, (n) 
 
 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, 2 e. c/., if a bill 
 
 (m) Shackell v. Macaulay, 2 S. & S. 79 ; Attorney-General v. Goldsmiths' 
 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 . 
 McKeen. Walk. Ch. 417 : Carroll v. Roosevelt, 4 Edw. Ch. 211; Dunn v. 
 Cooper, 3 Md. Ch. 46 ; Nourse v, A len, 4 Blatch. C. C. 376. 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 . McGee, Id. 208. 
 
 2 There is no general rule by which to determine whether a bill is, in 
 this second sense, multifarious or not ; but it must be left to the discretion 
 of the court under the circumstances of the case : Oliver . Piatt, 3 How. 
 U. S. 333, 411 ; Gaines v. Chew, 2 Id. 619; Marshall . Means, 12 Ga. 61 ; 
 Butler v. Spann, 27 Miss. 234 : Fleming v. Gilmer, 35 Ala. 62 ; Bowers v. 
 Keesecher, 9 Iowa 422; Fogg v. Rogers, 2 Cold. (Tenn.) 290. 
 
 Multifariousness, properly speaking, is where different matters, having 
 no connection with each other, are joined in a bill against several defend- 
 ants, 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 defendants are 
 put to the unnecessary trouble and expense of answering and litigating 
 matters stated in the bill, in which they are not interested, and with which 
 they have no connection : Newland v. Rogers, 3 Barb. Ch. 432 ; Ryan v. 
 Shawneytown, 14 111. 20. 
 
 See in illustration of this statement, Stuart's Heirs v. Coalter, 4 Rand. 
 74 : Coe v. Turner, 5 Conn. 86 ; Boyd v. Hoyt, 5 Paige 65 ; Swift v. Eck.
 
 618 ADAMS'S DOCTRINE OF EQUITY. 
 
 / 
 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 ligitation about 
 the lease ; and he might object to the two matters being- 
 united, as putting him to unnecessary expense. But in 
 this case, as in the preceding one, if the nature of the 
 transactions make a single suit convenient, the objection 
 will not be sustained, (o) 1 
 
 (o) Whaley . 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 Cl. & F. 1 ; 
 Mitf. 181 ; Attorney-General v. Cradock, 3 M. & C. 85; Attorney -General 
 v. Corporation of Poole, 4 Id. 17-31 ; Parr v. Attorney-General, 8 Cl. & F. 
 409 ; 1 Dan. C. P. 320-326. 
 
 ford, 6 Id. 22 ; Jackson v. Forrest, 2 Barb. Ch. 566 ; Morton v. Weil, 33 
 Id. 30 ; Silcox v. Nelson, 1 Geo. Decis. 24 ; Johnson v. Brown, 2 Humph. 
 327 ; Bruton v. Rutland, 3 Id. 435 ; Hickman v. Cooke, Id. 640 ; Glamorgan 
 v. Guisse, 1 Miss. 141 ; Ingersoll v. Kirby, Walk. Ch. 65 ; Nail v. Mobley, 
 
 9 Ga. 278 ; Felder v. Davis, 17 Ala. 418 ; Ayers v. Wright, 8 Ired. Eq. 
 229; Hammonds. Michigan State Bank, Walk. Ch..214; New England 
 Bank v. The Newport Steam Factory Co., 6 R. I. 154; Williams v. Neel, 
 
 10 Rich. Eq. 338 ; Hunton v. Platt, 11 Mich. 264 ; Brinkerhoff v. Brown, 
 6 Johns. Ch. 139 ; Metcalf . Cady, 8 Allen 587 ; Waller v. Taylor, 42 Ala. 
 297 ; Kennebec, &c., R. R. v. Portland, &c., R. R., 54 Maine 173 ; Wilson 
 v. Castro, 31 Gal. 420. 
 
 1 Where the interests of different parties are so complicated in different 
 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. Kennedy, 2 Ala. 571. 
 A bill against the executors of an estate, and all those who purchased from 
 them, is not upon that account alone multifarious : Gaines v. Chew, 2 How. 
 U. S. 619 ; Patterson v. Gaines, 6 Id. 582; so a bill against the personal 
 representatives and heirs of a party to a contract, for an account by the for- 
 mer under it, and specific execution of it by the latter, is not demurrable : 
 Cocke v. Evans f 9 Yerg. 287. A bill is not multifarious, where one general
 
 OF THE BILL. 619 
 
 The fifth and last part of a bill is the prayer of pro- 
 cess, which asks that a writ of subpoena may issue, di- 
 
 right is claimed by the plaintiff, although the defendants may have sepa- 
 rate and distinct rights : Dimmock v. Bixby, 20 Pick. 368 ; Bugbee v. Sar- 
 gent, 23 Maine 269 ; Curtis v. Tyler, 9 Paige 432 ; Bell . Woodward, 42 
 X. H. 190; Chase . Searles, 45 Id. 511 ; Tucker v. Tucker, 29 Mo. 355 ; 
 and see Walsham r. Stainton, 1 De G., J. & Sm. 678 ; Kunkell v. Markell, 
 26 Md. 390. Nor because the bill states more than one ground in support 
 of the same claim : Barnett v. Woods, 2 Jones. Eq. 198. A bill is not 
 multifarious which avers that the complainants are several owners of dif- 
 ferent parcels of goods which have been obtained from them by fraud 
 through distinct and separate transactions, by a person who has pledged 
 them to secure an advance, if the bill offers to restore the advance : Cole- 
 man v. Barnes, 5 Allen 374. To render a bill multifarious, it must contain 
 not only separate and distinct matters, but such that each entitles the 
 complainant to separate equitable relief. It is not so, if it be single as to 
 the subject-matter and object thereof, and the relief sought, if all the de- 
 fendants are connected, though differently, with the whole subject of dis- 
 pute : Watson v. Cox, 1 Ired. Eq. 389 ; Wheeler v. Clinton Can. Bank, 
 Harring. Ch. 449 ; Cornwell v. Lee, 14 Conn. 524 ; Robertson v. Stevens 
 
 I Ired. Eq. 247; Parish v. Sloan, 3 Id. 607 ; Wilcox v. Mills, 1 S. & M. 
 Ch. 85 ; Donelson's Adm'rs. r. Posey, 13 Ala. 752 ; Heirs of Holman v. 
 Bank of Norfolk, 12 Id. 369 ; Worthy v. Johnson, 8 Ga. 238 ; Larkins v. 
 Biddle, 11 Ala. 252 ; Martin v. Martin, 13 Mo. 36 ; Booth . Stamper, 10 
 Ga. 109; Foss v. Haynes, 31 Maine 81 ; Doub v. Barnes, 1 Md. 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 defend- 
 ant, does not render the bill multifarious: Butts . Genung, 5 Paige 254 ; 
 see also, Wells v. Strange, 5 Ga. 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 confesso below : Gibbs v. Clagett, 2 Gill & J. 14 ; Grove v. 
 Fresh, 9 Id. 280 ; Bryan v. Blythe et al.,4 Blackf. 249 ; Avery . Kellogg, 
 
 II Conn. 562 ; Wellborn e. 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 ; BettsV Betts, 18
 
 C20 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 
 wanted besides the subpoena, e. g^ a writ of injunction or 
 ne exeat regno, such additional writ is asked in the 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 dis- 
 covery in aid of a defence at law, it asks an injunction 
 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 At- 
 torney-General is a defendant in his official capacity, the 
 bill prays no subpoena, but simply that he being attended 
 with a copy may appear and answer. ( p) In certain cases 
 
 (p) 1 Dan. C. P. 368-371. 
 
 Ala. 787 ; Mobile, &c., R. R. r. Talman, 15 Id. 472 5 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 proprio 
 jure by the court ; but see Persch v. Quiggle, 57 Penn. St. 247. But it is 
 not necessarily fatal, when thus interposed, and its allowance rests in the 
 discretion of the court : Story Eq. Plead., s. 284, a ; Sims. P. Aughtery, 4 
 Strob. Eq. 104 ; Felder v. Davis, 17 Ala. 425 ; Oliver v. Piatt, 3 How. U. 
 S. 333. 
 
 A demurrer for multifariousness goes to the whole suit, and if sustained 
 the bill should be dismissed, and not retained for partial relief: Mclntosh 
 v. Alexander, 16 Ala. 87 ; Boyd v. Hoyt, 5 Paige 65 ; Gibbs . Claggett, 2 
 Gill & J. 14 ; Dunn . Cooper, 3 Md. Ch. 46.
 
 OF THE BILL. 
 
 also, where parties are joined as nominal defendants, 
 against whom no direct relief is prayed, so that their ap- 
 pearance in the suit would be a needless expense, the 
 prayer of process may be modified by omitting to sue a 
 writ against them, and by asking instead, that they, 
 being served with a copy of the bill, may be bound by 
 the proceeding in the cause, (q) The prayer of process 
 is generally expressed in drafts by the words, "May it 
 please," &c., and a direction is added, in the margin, as 
 to the parties to be 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. 1 ' 
 
 (?) 1 Dan. C. P. 405-408. 
 
 1 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 de- 
 murrer. 
 
 The illegibility of a bill is not ground for demurrer : Downer . Staine, 
 4 Wise. 372.
 
 622 ADAMS'S DOCTRINE OF EQUITY. 
 
 [*312] 
 
 OF PARTIES, 
 
 THE persons against whom process is asked are the de- 
 fendants to the bill, and should consist of all persons in- 
 terested in the relief sought, who are not already joined 
 as plaintiffs. 1 If no relief be sought, viz., if the bill be 
 for discovery alone, it cannot be objected to for want of 
 parties ; 2 but if relief be asked, the prayer of process 
 must be so framed as to bring all persons interested in 
 that relief before the Court, either as plaintiffs or as 
 defendants. 3 
 
 1 They are only parties defendant in a bill of Chancery, against whom 
 process is prayed, or who are specifically named and described as defend- 
 ants: Verplanck v. Merc. Ins. Co. of N. Y., 2 Paige 438 ; Elmendorf v. 
 Delancy, Hopkins 555 ; Lucas v. Bank of Darien, 2 Stew. 280 ; Green v. 
 McKinney, 6 J. J. Marsh. 193; Carey v, Hillhouse, 5 Ga. 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. Anderson, 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, 3 
 Dana 306 ^ Letcher v. Schroder, 5 J. J. Marsh. 513. There must be ser- 
 vice of process, actual or constructive : Estill v. Clay, 2 A. K. Marsh. 497. 
 
 2 Trescott v. Smyth, 1 McCord's Ch. 301, 303. 
 
 3 See, on the general subject, Mechanics' Bank v. Seton, 1 Peters 299 ; 
 Story v. Livingstone, 13 Id. 359 ; Hussey v. Dole, 24 Maine 20 ; McConnell 
 . McConnell, 11 Verm. 290; Noyes v. Sawyer, 3 Id. 160; Crocker v. Hig-
 
 OF PARTIES. 623 
 
 Tn both these points the rule of equity differs from the 
 rule of law. both in the necessity of joining all interested 
 parties in the suit, and in the option of joining them as 
 plaintiffs or defendants. At law, a disputed issue is alone 
 contested ; the immediate disputants alone are bound by 
 the decision ; and they alone are the proper* parties to the 
 action. In equity, a decree is asked, and not a decision 
 only ; and it is therefore requisite that all persons should 
 be before the Court, whose interest 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 de- 
 fendant, so that all the plaintiffs shall support one side, 
 and all the defendants the other side of the question in 
 *issue. In equity, it is only requisite that the 
 interests of the plaintiffs be consistent, and it is 
 immaterial that the defendants are in conflict with each 
 
 gins, 7 Conn. 342 ; Xew London Bk. . Lee, 11 Id. 112 ; Hawley v. Cramer, 
 4 Cowen 717 ; Oliver r. Palmer, 11 Gill & J. 426 ; Clark v. Long, 4 Rand. 
 451 ; Vann v, Hargett, 2 Dev. & Bat. Ch. 31 ; Frazer v. Legare, 1 Bailey 
 Ch. 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 
 Muss. 181 ; Caldwell v. Taggart, 4 Peters 190 ; Duncan v. Miener, 4 J. J. 
 Marsh. 447 ; Wendell v. Van Rensselaer, 1 Johns. Ch. 340 ; Wilson v. 
 Hamilton, 9 Johns. 442 ; Key v. Lambert, 1 Hen. & Munf. 330; Burhans 
 v. Burhans, 2 Barb. Ch. 398 ; Boughton v. Allen, 11 Paige 321; Carey . 
 Hoxey, 11 Ga. 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 ; Batchelder v. 
 Wendell, 36 N. H. 204; Burnham v. Kempton, 37 Id 485; Pence v. 
 Pence, 2 Beas. 257 ; Daily v. Litchfield, 10 Mich. 29 ; Lovejoy v. Irelan, 
 17 Md. 525. 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, 15 111. 251.
 
 624 ADAMS'S DOCTRINE OF EQUITY. 
 
 other, or that some of their claims are identical with those 
 of the plaintiffs. It should, however, be observed, that 
 although a conflict of interests among the 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, <?. g., 
 if a bill be filed by a second mortgagee against the mort- 
 gagor and a prior mortgagee, praying to redeem the first 
 mortgage, and that the mortgagor may then redeem both 
 or stand foreclosed. In this case, it is obvious, that be- 
 fore 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 
 adjured the realm. 1 If it be against an idiot or lunatic, 
 
 (a) Farquharson v. Seton, 5 Russ. 45 ; (Nottingham v. Shrewsbury, 3 
 Hare 627 ; Sandford v. Morrice, 11 Cl. & F. 667 ; Mitf. 81. 
 
 1 And although he is a certified bankrupt, he should be joined as a 
 party : Hamlin v. Bridge, 24 Maine 145 ; Smith v. Etches, 1 Hem. & M. 
 558. So, in a suit by a husband upon an interest in right of the wife, the 
 wife must be a party : Schuyler v. Hoyle, 5 Johns. Ch. 196 ; Griffith v. 
 Coleman, 5 J. J. Marsh. 600 ; Ringo v. Warder, 6 B. Monr. 514 ; Booth v. 
 Albertson, 2 Barb. Ch. 313 ; Johns v. Reardon, 3 Md. Ch. 57 ; Flowerton 
 v. Wimbish, 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 Ala. 813 ; 
 Boykin v. Ciples, 2 Hill Eq. 200 ; Stuart v. Kissam, 2 Barb. S. C. 492 ; 
 Berry v. Williamson, 11 B. Monr. 245 ; Bein v. Heath, 6 How. U. S. 228. 
 " In practice where the suit is brought by the wife for her separate pro- 
 perty, the husband is sometimes made co-plaintiff. But this practice is
 
 OF PARTIES. 625 
 
 the committee of his estate must be joined, (b) 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. 1 If, however, the Crown is in possession, or 
 if a title is vested in it which the suit seeks to divest or 
 affect, or if its rights are the immediate and sole object of 
 the suit, the application must be to the 'Crown by petition 
 of right. A Queen consort has the same prerogative. A 
 foreign Sovereign also, whether residing within the Bri- 
 ish dominions or not, is ordinarily exempt from the juris- 
 diction. But he is competent to sue as plaintiff 5 and if 
 he does so, he submits himself to the jurisdiction in re- 
 
 (l>) Mitf. on Plead. 30 ; 1 Dan. Ch. P. 160-170. [See Sturge c. Long- 
 worth, 1 Ohio X. S. 544.] 
 
 incorrect : and in all such cases she ought to sue as sole plaintiff by her 
 next friend, and the husband should be made a party defendant ; for he 
 may contest that it is her separate property, and the claim may be incom- 
 patible with his marital rights :" Story's Equity Pleading, \ 63 ; Johnson 
 v. Vail, 1 McCart. 423 ; Daniel's Ch. Prac. 105 ; see also Michan v. Wyatt, 
 21 Ala. 823 ; Barham r. Gregory, Phill. (N. C.) Eq. 243. But in Smith v. 
 Etches, 1 Hein. & M. 558, it is said that the husband ought to be joined 
 as co-plaintiff ; and see Hope v. Fox, 1 John. & H. 456. A person cannot 
 be made a defendant in the action upon his own application : Drake v . 
 Goodridge, 6 Blatchf. 151. 
 
 1 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. Ch. 157, 164 ; Harvard College v. Society for Promoting 
 Theological Education, 3 Gray 280. The interest of a tax payer, where 
 money is to be raised by taxation, or expended from the treasury, is suffi- 
 cient to enable him to proceed in equity to test the validity of the law 
 which proposes the assessment or expenditure : Page v. Allen, 58 Penn. 
 SL 338. 
 
 40
 
 626 ADAMS'S DOCTRINE OF EQUITY. 
 
 f*S1 41 s P ec ^ f ^ ne * ma tt e r sued for, and must answer 
 
 on oath to a cross-bill, (V) 1 
 
 If a bill be filed either by or against uninterested 
 parties, their joinder is sometimes spoken of as a fault 
 in pleading, but it seems more correct to say that, to the 
 extent of such misjoinder, there is a failure on the merits, 
 and the suit will be dismissed accordingly. 2 The only 
 exception to this rule is in suits against a corporation, in 
 
 (c) Mitf. on Plead. 30 ; 1 Dan. Ch. P. 138-140 ; Duke of Brunswick v. 
 King of Hanover, 6 Beav. 1. 
 
 1 See United States v. Wagner, L. R. 2 Ch. Ap. 582 ; Prioleau v. The 
 United States, L. R. 2 Eq. 659 ; ante, page 2, note 1. 
 
 2 The general rule is that an objection for nonjoinder or misjoinder of 
 parties ought to be made by demurrer: Bartlett v. Boyd, 34 Verm. 250 ; 
 but see Case v. Carroll, 35 N. Y. 385, 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. 580; Hunley v. 
 Hunley, 15 Ala. 91 ; McMaken v. McMaken, 18 Id. 576 ; Woodward v. 
 Wood, 19 Id. 213 ; Gilbert v. Sutliff, 3 Ohio (N. S.) 129. In the case, how- 
 ever, 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 
 Ala. 576 ; Gould v. Hayes, 19 Id. 438 ; Woodward v. Wood, Id. 213 ; Chap- 
 man . Hamilton, Id. 121. A demurrer for want of parties should point 
 out the proper parties: Chapman v. Hamilton, 19 Ala. 121 ; Caldwell v. 
 Blackwood, 1 Jones Eq. 274 ; Hightower v. Mustian, 8 Ga. 506. On de- 
 murrer, the bill is not dismissed, but the complainant is at liberty to 
 amend, except where proper parties cannot be made ; Hightower v. Mus- 
 tian, ut supra ; Smith v. Kornegay, 1 Jones Eq. 40. See, as to the mode 
 of proceeding, where objection is taken by answer, Rules in Equity, U. S. 
 Courts, No. lii. ; Penna., No. xxvii. 
 
 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 : Moodie 
 v. Bannister, 1 Drew. 514. But he will not be justified in making a person 
 a party merely, because the defendants insist that he ought to be made a 
 party ; and as to the person so joined the bill will be dismissed with costs : 
 Williams v. Page, 24 Beav. 654.
 
 OF PARTIES. 627 
 
 which their clerk or other officer may be made a defend- 
 ant, though unaffected by the relief sought, in order that 
 he may give discovery on oath, which the corporate body 
 cannot do.(d) 1 If the bill be for discovery alone, in aid 
 of proceedings at law, no person can be made a defendant 
 who is not a party to the record at law.(e) 
 
 AYith 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 expressly 
 asked. But with respect to those who are incidentally 
 connected with the relief asked against others, the line of 
 demarcation is less easy to draw. The interests, how- 
 ever, which require such joinder, seem generally refer- 
 able to one of the three following heads : first, interests 
 in the subject-matter which the decree may affect, and 
 for the protection of which the owners are joined ; secondly, 
 concurrent claims with the plaintiff, which if not bound 
 by the decree, may be afterwards litigated ; and thirdly, 
 liability to exonerate the defendant or to contribute with 
 him to the plaintiff's claim. 
 
 (d) Glasscott r. Copperminers' Company, 11 Sim. 305. 
 
 (e) Kerr v. Rew, 5 M. & C. 154. 
 
 _ . . f 
 
 1 The case of officers or agents of a corporation, is an exception to the 
 rule that a person who has no interest in the subject-matter, and who is a 
 mere witness, cannot be made a defendant in a bill in Chancery. See 
 Ayers v. Wright, 8 Ired. Eq. 229 ; Yates v. Monroe, 13 111. 212. But they 
 can only be made parties for discovery, where relief is sought against the 
 corporation, and not where the whole relief claimed is against persons 
 other than the corporation: Many v. Beekman Iron Co., 9 Paige 188. The 
 I'nitt.'d States of America can sue in that name in the English Chancery, 
 without putting forward any public officer who could be called on to give 
 discovery on a cross-bill : U. S. of A. v. Wagner, L. R. 2 Ch. 582; but the 
 Court may stay proceedings till this is done : Id. 
 
 Where there is charge of fraud in a transaction, in which an agent par- 
 ticipated, 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. Xunn, G Eng. (Ark.) 721.
 
 628 ADAMS'S DOCTRINE OF EQUITY. 
 
 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. (/) 
 *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 per- 
 sons are entitled as co-owners, 1 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. (g) But if their inter- 
 ests 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. (/., the interest of a 
 mortgagee on a bill respecting the equity of redemption, 
 or the interest of an encumbrancer or other prior and ad- 
 verse claimant not privy to the contract, on a bill for 
 specific performance. (/i) 2 
 
 (/) 1 Dan. Ch. P. ch. 5. 
 
 (g) Brookes v. Burt, 1 Bear. 106 ; [TWnend v. Toker, L. R. 1 Ch. 446.] 
 
 (h) Devonsher v. Newenham, 2 Sch. & L. 199, 210 ; Lewis v. Zouche, 2 
 
 Sim. 388 ; Tasker v. Small, 3 M. & C. 63 ; [De Hoghton v. Money, L. 11. 2 
 
 Ch. Ap. 164; West Midland R. R. Co. r. Nixon, 1 Hem. & M. 176;] Nel- 
 
 thorpe v. Holgate, 1 Coll. 203. 
 
 1 Every party interested in land belonging to co-tenants is a necessary 
 party to a bill for partition : Borah v. Archers, 7 Dana 176 ; Newman v, 
 Kendall,' 2 A. K. Marsh. 234 ; Pope v. Melone, Id. 239. So of tenants in 
 common of chattels: Ramey v. Green, 18 Ala. 771. 
 
 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. A bill in 
 equity to enforce the specific performance of a contract, made by a deceased 
 person, for the sale of land, must include his heirs as parties defendant : 
 Moore v. Murrah, 40 Ala. 573 
 
 2 To a bill for foreclosure and sale of mortgaged premises, all encum-
 
 OF PARTIES. 629 
 
 \ 
 
 The joinder of parties for protection of their own in- 
 terests is usually brought in question where such interests 
 are concurrent with that of the plaintiff, for if they are 
 concurrent with that of the defendant, the necessity of 
 joining their owners is generally made apparent by the 
 introduction of a prayer for direct relief. 
 
 braneers, or persons having an interest existing at the commencement of 
 the suit, subsequent as well as prior in date to the plaintiff's mortgage} 
 must be made parties, otherwise they will not be bound by the decree : 
 Haines v. Beach, 3 Johns. Ch. 459 ; Ensworth v. Lambert, 4 Id. 605 ; 
 Porter t. Clements, 3 Ark. 364 ; Huggins v. Hall, 10 Ala, 283. Those be- 
 coming encumbrancers pendente lite on a mortgage are not necessary 
 parties to a bill to foreclose : Youngman v. Elmira & W. R. R., 65 Penn- 
 St. 278. 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 deprived of the benefit 
 of his purchase : Bank of the U. S. v. 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 : Wood- 
 ward v. Wood, 19 Ala. 213 : but see the New Jersey Franklinite Co. v. Ames, 
 1 Beas. 509. In some cases it has been a question how far a prior encum- 
 brancer is a necessary party: see Finley v. Bank U. S., 11 Wheat. 306 ; Post 
 K. Mackall, 3 Bland 495 ; Wakeman v. Grover, 4 Paige 23; Cocron . Mid- 
 dleton, 19 How. 113 ; Johnson v. Brown, 11 Foster 405 ; Miles p. Smith, 
 22 Mo. 502 ; Story Eq. PI., | 185, 193. In Hagan . 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 encumbrancer 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 encumbrance ; a power which it will 
 exercise in proper cases, as where the prior encumbrancer is not subject 
 to, or is out of the jurisdiction, and the validity of the encumbrance 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 forclose a mortgage ; its right being paramount : 
 Pattison v. Shaw, 6 Ind. 377. The mortgagee is a necessary party to a 
 suit to reform a mortgage deed, brought by a purchaser at a sale by the 
 mortgagee : Haley v. Bagley, 37 Mo. 363.
 
 630 ADAMS'S DOCTRINE OF EQUITY. 
 
 The rule requiring the joinder of all persons whose in- 
 terests the decree may affect is subject to two modifica- 
 tions, which, at first sight, appear to be exceptions, but 
 which are in reality mere limitations of its effect, origi- 
 nating in the same principles as the rule itself. The first 
 of these modifications is the exclusion of remaindermen 
 after an estate tail ; the second is the exclusion of lega- 
 tees or next of kin on bills for a debt or legacy against 
 the personal representative. 
 
 The exclusion of remaindermen after an estate tail 
 originates in the possession by tenant in tail of an abso- 
 P..O-I fl-i lute *power to destroy the remainders, so that he 
 alone represents the inheritance, and the subse- 
 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. () 1 
 
 The exclusion of legatees or next of kin, on a bill for 
 a debt or legacy against the personal representative, orig- 
 inates in the assumption that such legatees or next of 
 
 kin have in reality no interest in the object of the suit. 2 
 
 i 
 
 (t) Mitf. 173-4 ; Lloyd v. Johnes, 9 Ves. 39-55 ; Gaskell v. Gaskell, 6 
 'Sim. 643. 
 
 1 See on this subject, Sohier v. Williams, 1 Curtis 479 ; Lushington v. 
 Boldero, 13 Beav. 418; Beattie v. Johnston, 8 Hare 169 ; Nodine v. Green- 
 field, 7 Paige 544. 
 
 2 The personal estate of a testator is represented by the executor, and a 
 residuary legatee is not a necessary party to a bill by the creditor seeking 
 to charge the general assets of the testator: Burwell v. Cawood, 2 How. 
 U. S. 575 ; Wiser v. Blackley, 1 Johns. Ch. 437 ; Watts v. Gayle, 20 Ala. 
 824; Melick v. Melick, 2 Green (N. J.) 156. Nor are the general cred- 
 itors proper parties in such a suit: Bias v. Bouchaud, 10 Paige 445. Nor 
 can a creditor filing a bill against an executor make a debtor a party, un- 
 less under special circumstances: Long v. Magestre, 1' Johns. Ch. 305.
 
 OF PARTIES. 631 
 
 For although they are in some sense concerned in it, yet 
 it is only in the same sense in which every creditor is 
 concerned in the management of his debtor's estate ; viz., 
 it is important to them that the ability to meet their 
 claims should not be diminished ; but the personal repre- 
 sentative is not a trustee for them, nor have they any in- 
 terest in the estate itself, (/c) If the claimants are not 
 mere legatees payable by the executor, but specific 
 owners of the property itself, the ordinary rule applies ; 
 e. y., where they take as appointees under a married 
 woman's will, (7) or where their legacies are charged on 
 real estate. In this latter instance, however, a modifica- 
 tion has lately been introduced, assimilating to some ex- 
 tent 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 ad- 
 ministrators in suite concerning personal estate ; and it 
 
 (k] Hertford v. De Zichi, 9 Beav. 11 ; Mitf. 168. 
 (1) Court v. Jeffery, 1 S. & S. 105. 
 
 As to when heirs should be parties to such suit, see Kennedy v. Kennedy, 
 2 Ala. 571 ; Telfair . Stead, 2 Cranch 407 ; Galphin v. McKinney, 1 
 McCord's Ch. 280. In a suit for final settlement of a partnership, it is 
 not necessary to join those beneficially entitled to the share of a deceased 
 partner, their rights being sufficiently protected by the personal represen- 
 tative: Coster v. Clarke, 3 Edw. Ch. 428. 
 
 Though ordinarily a bill may be sustained by one legatee alone : Prit- 
 chard i\ Hicks, 1 Paige 270 ; Brown v. Ricketts, 3 Johns. Ch. 553 ; Ramey 
 . Green, 18 Ala. 776 ; yet it is different as to a residuary legatee, who 
 must join all parties interested: Pritchard v. Hicks, ut sup.; West v. Ran- 
 dall, 2 Mason 181 ; Gould v. Hays, 19 Ala. 438 ; see Sellings v. Baurngard- 
 ner, 9 Gratt. 273.
 
 632 ADAMS'S DOCTRINE OF EQUITY. 
 
 shall not be necessary to make the persons beneficially 
 interested parties to the suit. But the Court may at 
 
 31 71 nearin g require them to be joined, if it shall 
 
 1 think fit. (#) 
 
 2. The joinder of parties who have concurrent claims 
 with the plaintiff., which, if not bound by the decree, 
 might be afterwards litigated, is most directly illustrated 
 by cases in which a plaintiff sues on an equitable title, 
 and the legal title is vested in a trustee for him. In 
 these cases the trustee must be made party, either as a 
 co-plaintiff or a defendant, 1 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 |ee must be a 
 party to any bill of foreclosure by the executor ;(m) z the 
 
 assignor of a debt or other chose in action, not transferable 
 
 \ 
 
 (II) 30th Order of August, 1841. [See Rules in Eq. U. S. 'Courts, No. 
 xlix. ; Perm., xxiii.] 
 
 (m) Scott v. Nicoll, 3 Russ. 476. 
 
 1 Malm v. Malin, 2 Johns. Ch. 238 ; Fish v. Rowland, 1 Paige 20 ; Bank 
 of America v. Pollock, 4 Edw. Ch. 215 ; Cassiday . McDaniel, 8 B. Monr. 
 519 ; Carter v. Jones, 5 Ired. Eq. 196 ; Everett v. Winn, 1 Sm. & M. Ch. 
 67 ; McKinley v. Irwine, 13 Ala. 681 ; Swan v. Dent, 2 Md. Ch. Ill ; Allen 
 v. Simons, 1 Curtis 122 ; Sayre v. Sayre, 2 Green (N. J.) 349. 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 
 0. 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. 
 
 2 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.
 
 OF PAETIES. 633 
 
 at law, must be a party to any suit by the assignee re- 
 specting it.(w) 1 
 
 (n) Cathcart v. Lewis, 1 Ves. Jr. 463 ; Walburn v. Ingilby, 1 M. & 
 K. 61. 
 
 1 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 neces- 
 sary party : Thompson v. McDonald, 2 Dev. & Batt. Eq. 463 ; Hopkins v. 
 Hopkins, 4 Strob. Eq. 207 ; Montague . Lobdell. 11 Gush. 111. The as- 
 signor of a bond or note, the payment of which is secured by a mortgage, 
 should be made a party to a suit by the assignee to foreclose the mort- 
 gage : Bell v. Schrock, 2 B. Monr. 29. See Beals v. Cobb, 51 Maine 348. 
 
 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 r. Rodgers, 1 A. K. Marsh. 426. 
 
 To a bill by the assignee of a debt, to obtain certain securities given by 
 the debtor to the attorney of the assignor, where the attorney had assigned 
 the same against the attorney and his assignee, the assignor of the com- 
 plainant is a necessary party : Elderkin v. Shultz, 2 Blackf. 345. 
 
 Whether the assignee of the exclusive right to use a patented machine 
 may join his assignor as a co-plaintiff in a suit for a violation of the patent, 
 Quaere? See Wood-worth v. Wilson, 4 How. U. S. 712. 
 
 In some cases, the heirs of the assignor are necessary parties to a bill by 
 the assignee. See Edwards v. Bohannon, 2 Dana 98. 
 
 To a bill by the assignee of a judgment, the assignor should be a party : 
 McKinnie v. Rutherford, 1 Dev. & Batt. Eq. 14 ; Elliott v. Waring, 5 Monr. 
 338 ; Pemberton v. Riddle, 5 Monr, 401 ; Cooper v. Gunn, 4 B. Monr. 594. 
 See, as to the joinder of the assignor in a judgment creditor's bill filed by 
 the assignee : Morey v. Forsyth, Walk. Ch. 465 ; Beach v. White, Id. 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, assignors 
 are not necessary parties to suits by assignees on bonds, where there are 
 statutes authorizing the assignment of bonds. See Snelling v. Boyd, 2 
 Monr. 132. So, the assignor of a note in controversy, who has no interest 
 .in it, and against whom no relief is prayed, is not a necessary party to the 
 bill : Everett v. Winn, 1 S. & M. Ch. 67. See also on this subject, Polk v. 
 Gallant, 2 Dev. & Batt. Eq. 395 ; Thompson . McDonald, Id. 463 ; Snel- 
 ling v. Boyd, 5 Monr. 172 ; Kennedy v. Davis, 7 Id. 372 ; James River 
 Co. v. Littlejohn, 18 Gratt. (Va.) 53. 
 
 The assignor of an entry need not be made a party in a suit by the as- 
 signee to obtain a title : Oldham v. Rowan, 3 Bibb 534. And in Bruen v.
 
 634 ADAMS'S DOCTRINE OF EQUITY. 
 
 The same principle of requiring that all concurrent 
 claims shall be bound, is applicable to many cases which 
 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 defendant 
 is entitled to have all such claims settled together, so that 
 the matter may be completely and effectually disposed 
 of. (0) Its operation, however, is excluded where a per- 
 son possessing a partial interest is seeking redress for an 
 injury, or enforcement of a contract, which affects himself 
 and his partial interest alone, although in some sense it 
 relates to the entire subject-matter ; e. g., where an occu- 
 pier complains of an injury to his possessory right, with- 
 out seeking to establish any claim respecting the inher- 
 itance, or where a partner or co-owner complains of fraud 
 practised on himself, although other parties have been 
 s i m il ai 'ly defrauded, (p) *And, in like manner, 
 one of several cestuis que trust may proceed sepa- 
 rately for his share of the fund, where the respective 
 shares have been already ascertained. 1 But it is other- 
 wise if an account be necessary to ascertain the shares, 
 
 (o) Munch v. Cockerell, 8 Sim. 219, 231. 
 
 (p) Tooth v. Dean of Canterbury, 3 Sim. 61 ; Semple v. Birmingham 
 Railway, 9 Id. 209 ; Blain v. Agar, 2 Id. 289 ; Mare v. Malachy, 1 M. & 
 C. 559; Turney v. Borlase, 11 Sim. 17 ; Bridget v. Hames, 1 Coll. 72. 
 
 Crane, 1 Green Ch. 347, it was decided that where a judgment, which is a 
 lien on land mortgaged, is assigned absolutely and unconditionally, the 
 assignor is not a necessary party to a bill for foreclosure. 
 
 When a plaintiff parts with all his interest in the subject-matter of the 
 suit, the case can be no longer prosecuted in his name 5 but the assignee 
 must make himself a party by an original bill in the nature of a supple- 
 mental bill : Mason . York R. R. Co., 52 Maine 82. 
 
 1 Hares v. Stringer, 15 Beav. 206 ; Piatt v. Oliver, 2 McLean 307 ; see 
 Chapman v. Hamilton, 19 Ala. 121. See now, in England, 15 & 16 Viet. 
 c. 86, s. 42; Macleod v. Annesley, 17 Jur. 612.
 
 OF PARTIES. 635 
 
 if the fund itself has been lost and its replacement is re- 
 quired, or if the entirety is in any way to be dealt with. 
 And it is doubtful whether a trustee can ordinarily be 
 compelled to divest himself of any part of his trust, un- 
 less all the cestuis que trust are before the Court, so that 
 he can get rid of the whole, (q) 
 
 The operation of the rules requiring that all 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 inconve- 
 nience, 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 appearing to the bill; subject 
 however, to the discretion of the plaintiff as to whether 
 he will compel such an appearance, and to that of the de- 
 fendant as to whether he will submit to be bound without 
 it. 1 The person possessing 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 complete 
 decree, and a final ascertainment of the amount of li;t- 
 
 (q) Munch v. Cockerell, 8 Sim. 219, 231 ; Henley v. Stone, 3 Beav. 355 ; 
 Goodson v. Ellison, 3 Russ. 583 ; [Lenaghan c. Smith, 2 Phillips 302.] 
 (r) Supra, Prayer of Process. 
 
 1 See Rules in Eq. U. S. Courts, No. liv. ; Penn., No. xviii.
 
 636 ADAMS'S DOCTRINE OF EQUITY. 
 
 r*Qicn bOity, *so that any one of the parties liable, on 
 satisfying the plaintiff, might obtain contribution 
 from the rest. 1 
 
 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, (s) 2 So, if several trustees had 
 committed a breach of trust, they must have been all par- 
 ties 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. () 3 It was in like manner 
 unnecessary to join an insolvent in the suit, because, 
 whether liable or not, he was unable to contribute, (u) 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 indemnify, it was an addi- 
 tional reason for insisting on their presence. Therefore, 
 
 (*) Bland . Winter, 1 S. & S. 246. 
 
 (t) Seddon . Connel, 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. 
 
 1 See Purcell v. Maddox, 3 Munf. 79. Where a judgment is a lien on 
 different parcels of land, in a suit by one of the several owners against the 
 judgment creditors, he must, in order to a decree for contribution, make 
 all the persons interested parties: Avery v. Petten, 7 Johns. Ch. 211. 
 See, also, Campbell v. Mesier, 6 Johns. Ch. 21 ; Hooper v. Royster, 1 
 Munf. 119; Venablew. Beauchamp, 3 Dana 321. 
 
 2 So all. the obligors in a bond should be made parties to a bill brought 
 to obtain relief against it, unless in a special case of collusion : Pollard v. 
 Collier, 8 Ham. 43. 
 
 8 In White v. Turner, 1 B. Monr. 130, it was held, that all the persons 
 concerned in suppressing a will, by which slaves who were emancipated are 
 thereby retained in slavery, are jointly liable to a decree for damages ; and 
 if one of the parties has died, his representatives should be made parties 
 to the suit for freedom.
 
 OF PARTIES. 637 
 
 a bill could not be filed against a surety without the prin- 
 cipal,^) 1 nor against an heir-at-law for payment of debts, 
 without the executor ;(?) but an order has now been 
 made, directing that if the plaintiff's demand be several as 
 well as joint, and whether the defendants be liable as 
 principals or sureties, he may proceed against all or any 
 at his own option. (a;) 
 
 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- 
 vided :|: the interest of every absent member in r#9on-| 
 the claim made or resisted is identical with that 
 of the members who are personally before the Court. 2 
 
 (r) Brooks v. Stuart, 1 Beav. 512. 
 (K-) Knight v . Knight, 3 P. Wms. 333. 
 
 (x) 32d Order of August, 1841. [See Rule li., U. S. Courts in Eq. ; 
 Penn. xxv.] 
 
 1 Roane v. Pickett, 2 English (Ark.) 510 ; Hart v. Coffee, 4 Jones Eq. 
 322. So the principal debtor must be a party in a bill by a surety against 
 the creditor for relief: Vilas r. Jones, 1 Corast. 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 Ch. 301. Where a party liable to contribute is insol- 
 vent, he need not be joined in the bill: Watts v. Gayle, 20 Ala. 817 ; Mon- 
 tague 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, p. 269, supra. Where a surety has paid the debt of his principal, he 
 may proceed against him, or may subject a fund which he has provided, 
 without making the creditor a party ; but where the debt is unpaid and 
 tin- surety seeks for exoneration, there, as a matter of course, the creditor 
 must be made a party ; for the relief is not to have the amount paid to the 
 surety, but paid to the creditor who is decreed to accept it in discharge of 
 his liability : Murphy r. Jackson, 5 Jones Eq. 14. 
 
 2 See upon this subject, Clements v. Bowes, 1 Drewr. 684 ; 16 Jur. 96 ;
 
 638 ADAMSES DOCTRINE OF EQUITY. 
 
 The most ordinary instances of this dispensation are in 
 suits by creditors or legatees. For as a single creditor or 
 legatee may sue for his demand out of the personal assets, 
 without bringing the others before the Court, it is rather 
 matter of convenience than of indulgence to permit such 
 a suit by a few on behalf of all ; and it tends to prevent 
 several suits by several creditors or legatees, which would 
 be inconvenient in the administration and burdensome 
 on the fund administered, (y) 1 The rule, however, is not 
 
 ( y] Mitf. 166. 
 
 Macbride v. Lindsay, 9 Hare 574 ; Long v. Storie, 22 L. J. Ch. 200 ; Salo- 
 mons v. Laing, 12 Beav. 377 ; Duke of Devon . Eglin, 14 Id. 530 ; Mul- 
 lock v. Jenkins, Id. 628 ; Harmer v. Gooding, 3 De G. & Sin. 407 ; Carey 
 v. Hoxey, 11 Ga. 645; Putnam v. Sweet, 1 Chand. (Wis.) 287; Hill v. 
 Commissioners, 1 Pars. Eq. 501 ; Smith v. Swormstedt, 16 How. U. S. 288 ; 
 Whitney v. Mayo, 15 111. 251 ; Thornton v. Hightower, 17 Ga. 1 ; Stimson 
 v. Lewis, 36 Verm. 91 ; Hendrix v. Money, 1 Bush (Ky.) 306 ; Smith v. 
 Bartholomew, 42 Verm. 356; Davis v. Clabaugh, 30 Md. 508. Numerous- 
 ness 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 numerous that to join them would be impracticable; without al- 
 most interminable delays and other inconveniences, which would obstruct 
 and probably defeat the ends of justice: Carey v. Hoxey, 11 Ga. 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 : Id. ; Society for Propagation of Gospel v. Hart- 
 land, 2 Paine C. C. 536. Thus, on a bill filed by some next of kin, on be- 
 half 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 concurred, cannot be maintained : Kent 
 0. Jackson, 14 Beav. 369 ; 2 De G., M. & G. 49. 
 
 See also, Rule No. xlviii., U. S. Courts in Equity ; No. xxii., Penna. ; by 
 which it is provided that where the parties are very numerous, the court 
 may, in its discretion, dispense with the joinder of all. 
 
 1 One legatee may file a bill in behalf of himself and the other legatees
 
 OF PARTIES. 639 
 
 confined to cases of this class, but has been extended to 
 other cases where several persons 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 bringing the others before the Court. The 
 ground for this indulgence is, that if all were made actual 
 parties the suit would be liable to frequent abatements, 
 and it would be practically impossible to bring it to a 
 hearing. The Court, however, in such cases will not 
 proceed to a decree until it is satisfied that the interest 
 of all is fairly represented, and that there would be a 
 preponderating inconvenience in bringing them individu- 
 ally before it. (2) 
 
 The same principle applies where there is a common 
 
 (z) Mitf. 167 ; Harvey . Harvey, 4 Beav. 215 ; Hawkins v. Hawkins, 1 
 Hare W,. 
 
 who may choose to come in, against the executors for an account and pay- 
 ment ; but where the bill is for the residue, all the residuary legatees must 
 be made parties: Brown v. Ricketts, 3 Johns. Ch. 553 ; Daroue v. Fanning, 
 4 Id. 199. But see Hallett v. Hallett, 2 Paige Ch. 15, in which it was held 
 that one residuary legatee may file a bill on behalf of himself and all 
 others standing in the same situation, and it is not necessary to make them 
 all parties to the suit. 
 
 In a suit against the personal representatives of a deceased debtor to re- 
 cover a debt due from his estate, it is only necessary for the complainant 
 to file the bill in behalf of himself and of all other creditors in the same 
 situation, when it appears upon the 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 : Dias 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 . Barelli,Riley's Gh. 138 ; 
 Cherry v. Belcher, 5 Stew. & Port, 133 ; Turley v. Young, 5 J. J. Marsh. 
 133 ; Richardson v. Hunt, 2 Munf. 148.
 
 640 ADAMS'S DOCTRINE OF EQUITY. 
 
 right against the defendants, e. ^., where relief is sought 
 on behalf of a partnership or other numerous body 
 against strangers, or on behalf of all the members of 
 such body except the defendants, against members who 
 have committed .a wrong. Such a bill has accordingly 
 been sustained on behalf of a company against the direc- 
 l~*391 1 ^ ors ^ re( ^ ress or ^prevent a misapplication 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, (b) and 
 on behalf of a company against third parties to enforce or 
 rescind a contract, or to obtain an injunction against pro- 
 ceedings at law.(c) 1 Arid e convcrso it has been held that 
 
 (a) Chancery v. May, Pr. in Ch. 592 ; Hichens v. Congreve, 4 Russ. 562 ; 
 Preston v. Grand Collier Dock Company, 11 Sim. 327 ; Mozley v. Alston, 
 1 Ph. 790. 
 
 (b) Attorney-General 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. 
 
 1 Where the associates or shareholders of a private association are numer- 
 ous, 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 execu- 
 tion of the trust, and for an account and distribution of the funds and pro- 
 perty 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. Ch. 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 the suit must profess to be as well in their behalf as that of 
 the complainants : AVhitney v. Mayo, 17 111. 252 ; New England Bank r. 
 Stockholders, &c., 6 R. I. 191. Where a large number of persons are asso- 
 ciated for the purposes 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 hav- 
 ing 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 behalf 
 of the town, respecting its common property without the consent of the 
 town duly declared : Denton v. Jackson, 2 Johns. Ch. 320. Nor can indi-
 
 OF PARTIES. 641 
 
 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. 1 
 And on a bill so framed the Court will make a decree 
 binding all, although so far as the absent parties are con- 
 cerned it cannot make them do any specific act. (d) 
 
 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 divi- 
 
 (d) Meux v. Maltby, 2 Sw. 277; Adair v. New River Company, 11 Ves. 
 429 ; Lanehester v. Thompson, 5 Mad. 4, 13 ; Attwood v. Small, 9 Law J. 
 Ch. 132; 6 Cl. &F. 232. 
 
 vidual stockholders of an incorporated company file a bill against 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 corporate body. In 
 some cases individual stockholders can file bills, but only where the 
 officers have the control, and are guilty of breach of duty as trustees : 
 Forbes . Whitlock, 3 Ed. Ch. 446 ; Bronson v. La Crosse R. R. Co., 2 Wall. 
 S. C. 302. 
 
 A single stockholder may file a bill on behalf of himself and others, to 
 restrain directors of a company from acts ultra vires : Natusch v. Irving, 
 Appendix to Gow on Partnership 576 ; Colman v. The Eastern Counties 
 Railway Co., 10 Beav. 1 ; Simpson v. The Hotel Co., 8 H. L. Cas. 717; 
 Gifford r. The New Jersey R. R. Co., 2 Stockton 171 ; Stevens . Rutland 
 & Burlington R. R., 29 Verm. 545 ; see, also, Philadelphia & Erie R. R. v. 
 Catawissa R. R., 53 Penn. St. 20. 
 
 1 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 : Mande- 
 
 ville v. Riggs, 2 Peters 482. See, also, Dana v. Brown, 1 J. J. Marsh. 304. 
 
 41
 
 ADAMS S DOCTRINE OF EQUITY. 
 
 sion 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 unless all 
 the partners were parties, because every one of the absent 
 partners would have a separate and substantial interest in 
 the question of right, (e) 1 
 
 *^ a PP ears to have been at one time consi- 
 dered impossible that any bill for Avinding 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 contribution 
 as between the partners entirely open for future settle- 
 ment. A bill of this latter kind does not bring into con- 
 troversy the rights of individual partners, and may there- 
 fore 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, pro- 
 
 (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. 
 
 1 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 Litt. 67 ; Noyes v. Sawyer, 
 3 Verm. 160. Yet see Townsend v. Auger, 3 Conn. 354.
 
 OF PARTIES. 643 
 
 vided there were a strong necessity shown, and sufficient 
 parties were before the Court to represent each conflicting 
 interest, and to discuss the questions freely and without 
 restraint. (/) 
 
 In cases where persons interested are out of the juris- 
 diction of the Court, it is sufficient to state that fact in 
 the bill, and to pray that process may issue on their 
 return ; and if the statement be substantiated by proof 
 at the hearing, their appearance in the suit will be dis- 
 pensed with.(^) 1 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- 
 tion may be obtained. *But if they are to be r#ooo-i 
 active in performing the decree, or if they have 
 rights wholly distinct from those of the other parties, 
 the Court, in their absence, can not proceed to a deter- 
 mination against them.(^) 2 The powers conferred by 
 
 (/) Supra, Partnership ; Wallworth v. Holt, 4 M. & C. 619; Richardson 
 v. Larpent, 2 N. C. C. 507 ; Richardson v. Hastings, 7 Beav. 301, 323 ; 
 Clough v. Radcliffe, 1 De G. & Sm. 164; Apperly v. Paige, 1 Ph. 779; 
 Wilson v. Stanhope, 2 Coll. 629. 
 
 (g] Burton v. Egginton, 1 Hare 488 ; Munoz v. De Mastet, 1 Beav. 109. 
 
 (h) Mitf. on Pleading 32; Fell v. Brown, 2 B. C. C. 276; Brown v. 
 Blount, 2 Russ. & M. 83 ; Willats v. Busby, 5 Beav. 193 ; 1 Dan. Ch. P. 
 199, 200. 
 
 1 See Spivey . Jenkins, 1 Ired. Eq. 126 ; Milligan v. Milledge, 3 Cranch 
 220 ; Lainhart v. Reilly, 3 Dessaus. 590 ; Rule No. xlvii., U. S. Courts in 
 Eq. ; No. xx., Penna. 
 
 2 See Joy v. Wirtz, 1 Wash. C. C. 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 of 
 the Court they may be dispensed with, yet this exception does not apply
 
 644 ADAMS'S DOCTRINE OF EQUITY. 
 
 statute of serving such parties with process abroad, and 
 thus bringing them before the Court, will be presently 
 considered. 
 
 to cases involving important rights of the absent partners, and especially 
 not to cases where the facts are mainly in their knowledge, or where the 
 circumstances occurred in the place where they are : Vose v. Philbrook, 3 
 Story 336. See Burvrell v. Cawood, 2 How. (U. S.) 575 ; Wilson v. City 
 Bank, 3 Sumner 422. 
 
 The Supreme Court of the United States will not make a final decree 
 upon the merits of a case, unless all persons essentially interested are 
 parties, although some of those persons are not within the jurisdiction of 
 the Court: Russell v. Clark, 7 Crunch 69; but see now the Rule in Equity, 
 No. xlvii,
 
 OF PROCESS AND APPEARANCE. 645 
 
 ^CHAPTER III. [*324] 
 
 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 here- 
 after see, be of four kinds, Disclaimer, Demurrer, 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, or leaving one at his place of 
 actual residence. And in special cases, where an ab- 
 sconding or absent defendant has a recognised agent in 
 the matter litigated, substituted service on such agent has 
 been allowed, (a) 2 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. (b) 3 
 
 (a) Hobhouse v. Courtney, 12 Sim. 140; Murray . Yipart, 1 Ph. 521. 
 
 (b) Whitmore v. Ryan, 4 Hare 612. 
 
 1 The writ of subpoena is now abolished in England, and instead thereof 
 a printed bill is served on the defendants. In some of the United States 
 the subpoena is still in use ; in others, as in Pennsylvania, service by copy 
 of the bill is substituted. See Daniel's Chan. Prac. 428. 
 
 2 See on this subject, Eckert v. Baeert, 4 Wash. C. C. 370 ; Ward v. Seabry, 
 Id. 426, 472. 
 
 3 The Court of Chancery has power, under the recent General Orders, to 
 direct service of its process abroad : Drummond v. Drummond, L. R. 2 Eq.
 
 646 ADAMS'S DOCTRINE OF EQUITY. 
 
 Assuming the subpoena to be duly served, the defendant 
 must next appear. If he be contumacious and refuse, his 
 disobedience may be punished as a contempt. 
 
 The processes of contempt were originally five, viz. : 
 
 1. A writ of attachment directed to the sheriff of the 
 defendant's county, commanding that the defendant's per- 
 son 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 defendant 
 was brought up by habeas corpus, on the second by the 
 messenger of the Court, or the serjeant-at-arms, and in 
 either case was committed to the Fleet, now altered to the 
 Queen's Prison. On the third return, that of non est m- 
 ventus, the next process of contempt issued. 
 
 2. A writ of attachment with proclamations ; on which 
 the same returns might be made, and the same results 
 would follow. 
 
 3. A writ of rebellion directed to commissioners 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 followed, 
 
 An order that the serjeant-at-arms, as the immediate 
 officer of the Court, should effect the arrest. If an arrest 
 were made under this process, it was followed, like other 
 arrests, by committal to the Fleet. But if the return 
 
 335 ; affirmed in L. K. 2 Ch. Ap. 32. In some of the states, publication 
 is authorized by statute, in the case of non-resident defendants. See 
 Haring v. Kauffmnn, 2 Beas. 297. Such provisions have been held to in- 
 clude lunatics in their effect : Sturges . Longworth, 1 Ohio St. N. S. 550.
 
 OF PROCESS AND APPEARANCE. 647 
 
 were non est invent us, there was no further process against 
 the person. 
 
 5. A writ of sequestration, issuable only on the return 
 non cst invcntm 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 se- 
 questration proved ineffectual, there was no further pro- 
 cess. 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 
 peerage or Parliament, and exempt, therefore, 
 from committal for civil contempt, (c?) 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 sequestration. 
 
 Assuming an appearance to be entered, an answer was 
 next required. And if this were refused, the process of 
 contempt was again enforced ; but if resisted to a seques- 
 tration, the plaintiff was not restricted to that remedy, but 
 on issuing the writ, might apply to the Court to take his 
 bill pro confesso, and to decree against the defendant on 
 the assumption of its truth. 
 
 If a decree were ultimately made against the defendant, 
 its performance was enforced by a like process of con- 
 
 <c) 1 Smith C. P. 571. 
 
 (d) Wellesle/s Case, 2 R. & M. 639.
 
 648 ADAMS'S DOCTRINE OF EQUITY. 
 
 tempt, 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 re- 
 fused to submit, there were no means of compelling obe- 
 dience. And on the other hand, if a defendant in custody 
 under process were incapable of doing the required 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, after- 
 wards 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, 
 P327T a Ppli e( l *especially to three classes of persons ; 
 viz., absconding defendants, privileged defend- 
 ants, and defendants in custody under process. In res- 
 pect to the former class, it authorized the Court to make 
 an order for the defendant's appearance, and on due pub- 
 lication of such 'order to dispense with both service and 
 appearance, and proceed at once to take the bill pro con- 
 fesso. In respect to the other two classes, it authorized 
 an appearance to be entered for them ; shortened the steps 
 for taking the bill pro confesso, and conferred on bills taken 
 pro confesso under it additional efficacy, by directing that 
 they should not only warrant a decree, but should be evi- 
 
 (e}\ Dan. Ch. P. 450.
 
 OF PROCESS AND APPEARANCE. 649 
 
 dence in any other proceeding as equivalent to an admis- 
 sion 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 time, 
 the plaintiff should proceed according to the nature of the 
 contempt to enter an appearance for him, or to have his 
 bill taken pro confesso, and that in default of his so doing, 
 the defendant should be discharged. 
 
 The case of absent defendants, not having absconded 
 to avoid process, was provided for to a limited extent by 
 "1 Win. 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 encumbrances 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 obedi- 
 ence is chiefly regulated by those orders, and it is there- 
 fore *necessary to point out in what respects 
 they have modified the previous system. 
 
 1. They have remedied some of the difficulties respect- 
 ing service of process, by directing that where a defend- 
 ant, having been in this country within two years before 
 the subpoena issued, appears to have absconded to avoid 
 process, an order for his appearance duly published may 
 be substituted for such service ; and that when a defend- 
 
 (/) 3 & 4 Viet. c. 94: 4 & 5 Viet. c. 52; 8 <fe 9 Yict. c. 105; General 
 Orders of August, 1841 ; April, 1842; and May, 1845.
 
 650 ADAMS'S DOCTRINE OF EQUITY. 
 
 ant 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, (h) 
 
 3. They have provided for defaults in appearance, by 
 distinct regulations for the several cases of an adult and 
 capable defendant served within the 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 ; authorizing 
 in each case under certain restrictions an appearance to 
 be entered for such defendant, (i) And their effect ap- 
 pears 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 attach- 
 ment. But on the return of this writ, whether it be " in 
 prison," " cepi corpus" or " non est inventus" he can issue 
 no further process, but must proceed to enter an appear- 
 ance ; for in the first case he is expressly bound to do so 
 by 1 Wm. 4, c. 36, s. 13 ; in the second he cannot have 
 a messenger, and has, therefore, no means of reaching the 
 P3291 Defendant; an d i* 1 *the third he cannot have a 
 
 serjeant-at-arms, and a sequestration cannot issue 
 on an inferior process. 
 
 4. They have provided for default in answering after 
 an appearance, whether entered by or for the defendant. 
 
 In this case there are three modes of procedure open to 
 the plaintiff, viz., by process of contempt, by taking the 
 
 (g) 1845, xxxi., xxxiii. (h] 1841, vi., vii. (i] 1845, xxix., xxxvi.
 
 OF PROCESS AND APPEARANCE. 651 
 
 bill pro confesso, or by going into evidence without an 
 answer. 
 
 If he adopt the first course, by process of contempt, he 
 may issue an attachment, either immediately on default, 
 or if the defendant is likely to abscond, at an earlier 
 period. () 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. (7) If he is taken, the plaintiff must 
 proceed within a further period to bring him to the bar of 
 the Court, to answer his contempt there. 
 
 The second course open to the plaintiff is that of taking 
 his bill pro confesso. 1 And he is entitled under the pre- 
 sent practice to adopt this course immediately on the 
 execution 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 sub- 
 sequent process for want of answer to be executed, (m) 
 
 The third course is that of going into evidence with- 
 out an answer, which, where the plaintiff can rely on 
 the strength of his evidence, is occasionally advisable. 
 For this purpose a power was given by the llth and 
 12th rules of Sir E. Sugden's Act to file a formal answer 
 in the defendant's name. By the present rules a simpler 
 plan is adopted ; and the plaintiff is authorized to file a 
 traversing note, expressing his intention to proceed as if 
 an answer had been filed traversing the bill.(n) 
 
 (k) 1845, Ixxxii. (I) 1841, is. 
 
 (TO) 1845, Ixxvi., Ixxix. () 1845, Hi., Iviii. 
 
 I ~ 
 
 1 See on this subject, Rules of U. S. Courts in Equity, No. xviii., &c. ; in 
 
 Penna., Xo. xiii. and xxix ; Guerry v. Durham, 11 Ga. 9; Carradine v. 
 O'Connor, 21 Ala. 573. A decree pro confesso cannot be made against 
 one not served: Hurter v. Robbins, '21 Ala. 585.
 
 652 ADAMS'S DOCTRINE OF EQUITY. 
 
 *The outline which has been just given of the 
 process of the Court is sufficient to explain its 
 general character. Its precise details would be foreign 
 to the purpose of the present Treatise. (0) And we will 
 now proceed, on the assumption of a regular appearance 
 and defence, to consider in what manner such defence 
 should be made. 
 
 (o) 1 Dan. Chap. 7, 8, 9, 10, 12.
 
 OF THE DEFENCE. 653 
 
 *CHAPTE& IV. [*331] 
 
 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 cognisable 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. 1 
 
 4. Want of equity, 2 where no case is established on 
 
 (a) 1 Dan. Ch. P. 509, 595. (6) 1 Dan. Chap. 3. 
 
 1 See Pearse r. Dobinson, L. R. 1 Eq. 241. 
 
 2 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. Lock- 
 ard, 16 Ala. 423 ; but see, Brill t>. Stiles, 35 111. 305. But, if not demurred 
 to, evidence will be received in support of its allegations : Groves v. Ful- 
 some, 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 defect 
 of a demurrer : Lovett . Longmire, 14 Ark. 339.
 
 654 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 jurisdic- 
 tion into equity, has not been annexed to the bill. 1 
 
 5. Multifariousness and unduly splitting up a cause of 
 suit. 
 
 6. Want of parties. 
 
 r#qqo-| *The doctrines which affect the validity of each 
 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 de- 
 murrer, 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. 2 Such, for example, would be the case if 
 
 1 An objection to the jurisdiction of the court on the ground that the 
 plaintiff has an adequate remedy at law, must be taken by answer, or it is 
 waived : Tenney v. State Bank, 20 Wis. 152. See also, Pella v. Scholte, 21 
 Iowa 463. 
 
 2 By the Equity Rules of the United States Courts, No. xxxii., it is pro
 
 OF THE DEFENCE. 655 
 
 the bill pray.ed 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 
 <f 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 con- 
 structed as to give rise to a peculiar defence, compounded 
 of plea and answer, and technically termed "a plea sup- 
 ported by an answer." The nature of the 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 
 ^property, untruly state that the defendant has poo on 
 an interest therein, the defendant may put in a 
 disclaimer of anv right in the matter. If this be done, 
 
 v <> 
 
 all controversy between himself and the plaintiff is at an 
 
 (c) Mitf. 106, 319; Wigr. on Discovery, s. 12. 
 
 vided that the defendant may, at any time before the bill is taken for con- 
 fessed, 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 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. In Pennsyl- 
 vania (Rule xxxii.) no demurrer or plea is allowed to be filed unless sup- 
 ported by affidavit that it is not interposed for delay ; and, if a plea, that 
 it is true in point of fact.
 
 656 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 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. 1 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. 2 It is 
 applicable to any defence which can be made out from the 
 allegations in the bill, but the most ordinary grounds of 
 demurrer are, want of jurisdiction, want of equity, multi- 
 fariousness, and want of parties. The frame of a demur- 
 rer is very simple, and, after the formal commencement, 
 runs thus: "This defendant doth demur in law to the 
 said bill, and for cause of demurrer showeth that it ap- 
 
 (d) Mitf. on Pleading 318 ; Perkin v. Stafford, 10 Sim. 562 ; Graham v. 
 Coape, 3 M. & C. 638 ; Glassington v. Thwaites, 2 Russ. 4"8. 
 
 1 A disclaimer must be full and explicit in all respects, and be accompa- 
 nied 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 defendant 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. Ch. 358. 
 
 2 A demurrer does not lie to an answer. If an answer is irregular, it 
 may be treated as no answer and taken off the file ; if it is merely defect- 
 ive, it must be excepted to : Travers v. Ross, 1 McCart. 254 ; Stone v. 
 Moore, 26 111. 165. And a demurrer does not lie to a plea or to a replica- 
 tion ; they should be set down for hearing : Beck v. Beck, 36 Miss. 72.
 
 OF THE DEFENCE. 657 
 
 pears by the said bill that," &c., stating in the regular 
 form on what class of objection the defendant relies, or if 
 there be more than one ground of objection, stating each 
 ground successively with the prefatory words, " and for 
 further cause of demurrer, this defendant showeth," &c., 
 and concluding with the words, "wherefore and for divers 
 other good causes of demurrer appearing in the said bill 
 tli is defendant doth demur to the said bill, and prays the 
 judgment of this honorable Court whether he shall be.com- 
 pelled to make any other answer thereto ; and he humbly 
 prays to be hence dismissed, with his reasonable costs 
 in this behalf sustained." The formal *state- [-#0041 
 ment, however, of the causes of demurrer, though 
 usual, is not absolutely necessary; 1 nor does the statement 
 of one cause preclude the defendant from relying in argu- 
 ment on any others extending to the same part of the bill; 
 for the assertion of a demurrer is, that the plaintiff has 
 not, on his own showing, made out a case, and if that 
 position can be established on any ground, the demurrer 
 is good. In such a case, 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 particular 
 portion of the bill. It may be to the relief sought, it may 
 be to the discovery, or it may be to both, or to only a part 
 of one or of both. 2 
 
 () Mitf. 217 ; Wellesley v. Wellesley, 4 M. & C. 554 ; 1 Dan. Ch. P. 539- 
 545. 
 
 1 See Xash v. Smith, 6 Conn. 4'J1 ; Yanhorn v, Duckworth, 7 Ired. Eq 
 261. 
 
 2 Where the demurrer does not go to the whole bill, it must clearly ex- 
 
 42
 
 658 ADAMS'S DOCTRINE OF EQUITY. 
 
 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^/) 1 If the demurrer be to a part only of 
 the relief, it will not necessarily extend to the discovery, 
 because discovery may be necessary for obtaining the 
 rest pf the prayer. It may also happen that the demur- 
 rer will leave the relief untouched, and will extend only 
 to the discovery or part of the discovery, on the special 
 ground that the subject-matter is one in which the defend- 
 ant 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. 2 But, unless such special ground 
 
 (/) Morris v. Morgan, 10 Sim. 341. 
 
 press 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 insuffi- 
 ciency, 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; Gray v. Regan, 23 Miss. 
 (1 Cushm.) 304 ; Burch v. Coney, 14 Jur. 1009. 
 
 A defendant cannot answer a bill and demur to the interrogatories : 
 Kisor v. Stancifer, Wright 323. 
 
 1 See Souza v. Belcher, 3 Edw. Ch. 117; Miller v. Ford, Saxton 358; 
 Welles v. lliver Raisin R. R. Co., Walk. Ch. 35 ; Pool v. Lloyd, 5 Met. 525. 
 
 2 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. 327. 
 
 To a bill for a discovery against a surviving partner, and for an account, 
 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 where- 
 fore a forfeiture would be the consequence of discovery : Sharp v. Sharp, 
 3 Johns. Ch. 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
 
 OF THE DEFENCE. 659 
 
 exist, the general rule is that the defendant cannot admit 
 the right to relief, and at the same time demur to the dis- 
 covery by which the relief is to be obtained, (g) In all 
 cases alike the rule ^prevails, that the extent to pooc-i 
 which the demurrer is meant to be a defence 
 should be distinctly pointed out. 1 And if the protection 
 claimed be too extensive, the defence will fail. For a 
 demurrer cannot be good in part and bad in part ; but if 
 it be general to the whole bill, and there be any part, either 
 as to relief or discovery, to which an answer is requisite, 
 the demurrer being entire, must be overruled. 
 
 (g) 1 Dan. Ch. P. 502. (gg) I Dan. Ch. P. 538-540. 
 
 buying pretended titles, cannot be supported, if the answer need not neces- 
 sarily show a scienter of the vendor's being out of possession, and a sub- 
 sisting adverse possession : Le Roy v. Servis, 1 Cai. Cas. Eq. 3 ; s. c. 1 
 Johns. Cas. 417. See also, on the point, Patterson K. Patterson, 1 Hayw. 
 167 ; Wolf v. Wolf, 2 Har. & Gill 282 ; Livingston v. Tompkins, 4 Johns. 
 Ch. 415: Northrop v. Hatch, 6 Conn. 361. See, in addition, supra, Book 
 I., chap, i., on Discovery. 
 
 1 See Atwill v. Ferrett, 2 Blatchf. C. C. 39. 
 
 2 Livingston r.'Story, 9 Pet. 632 ; Brockway v. Copp, 3 Paige 539 ; Le 
 Roy r. Veeder, 1 Johns. Cases 417 ; Laight v. Morgan, Id. 429 ; Verplank 
 v. Gaines, 1 Johns. Ch. 57 ; Le Fort r. Del.ifield, 3 Edw. Ch. 32 ; Thomp- 
 son v. Newlin, 3 Ired. Eq. 338 ; Russell v. Lanier, 4 Hey. 289 ; Kimberly 
 r. Sells, 3 Johns. Ch. 467 ; Livingston r>, Livingston, 4 Id. 294 ; Higin- 
 botham v. Burnet, 5 Id. 184 ; Parsons v. Bowne, 7 Paige 354 ; Castleman 
 v. Veitch, 3 Rand. 598 ; Griggs v. Thompson, 1 Ga. Decis. 146 ; Hollsclaw 
 r. Johnson. 2 Id. 146 ; Blount v. Garen, 3 Hey. 88 ; Fancher v. Ingraham, 
 6 Blackf. 139 ; Carter v. Longworth, 4 Ham. 384 ; Western Ins. Co. v. 
 Euirle Fire Ins. Co., 1 Paige 284 ; Parish v. Sloan, 3 Ired. Eq. 607 ; Harden 
 c. -Miller, Dudley 120 ; Williams t>. Hubbard, Walk. Ch. 28 ; Thayer v. 
 Lane, Harring. Ch. 247 ; Shed r. Garfield, 5 Verm. 39 ; Clark . Davis, 
 Barring. Ch. 227 : Bank U. S. v. Biddle, 2 Pars. Eq. 32 ; Gray . Regan, 
 -!:; Miss. (1 Cushm.) 304 ; Vanderveer c. Stryker, 4 Halst. Ch. 175 5 
 Conant r. Warren, 6 Gray 562 ; Atwill v. Ferrett, 2 Blatchf. C. C. 39. See 
 also, Rowe c. Tonkin, L. R. 1 Eq. 9 ; Banta v. Moore, 2 McCarter (N. J.) 
 87 ; Metier r. Metier, 4 Green (N. J.) 457 ; Bonney v. Bonney, 29 Iowa, 
 448 ; Reilly r. Cavanaugh, 32 Ind. 214; O'Harra r. Cox, 42 Miss. 496 ; 
 see also, Hawkins r. Clermont, 15 Mich. 511 ; State v. Young, 65 N. C. 579.
 
 660 ADAMS'S DOCTRINE OF EQUITY. 
 
 A demurrer might also have been overruled under the 
 old practice, on the ground that it did not cover so much 
 of the bill as it might by law have extended to, or that it 
 was coupled with an answer extending to some part of 
 the matter which was covered by the demurrer ; but a 
 different rule now pre vails, (h} 1 
 
 The principle on which a demurrer in equity is decided 
 is the same which applies to a demurrer at law, viz., that, 
 assuming the plaintiff's allegation to be true, he has not 
 made out a sufficient case. And as it is therefore an 
 invariable rule that on argument of a demurrer, all allega- 
 tions of fact contained in the bill, except as to matters of 
 which the Court takes judicial notice, must for the pur- 
 poses of the argument be deemed conclusive, 2 a demurrer 
 introducing contrary or. additional averments, is termed a 
 
 (h) Orders of 1841, xxxvi., xxxvii. 
 
 But the demurrer will not be overruled if the bill is multifarious. See 
 Dimmock v. Bixby, 20 Pick. 368. When a demurrer to a bill, on the 
 ground of multifariousness, is sustained as to part of the bill, all that 
 part of the bill not objectionable on that ground remains in court, and the 
 complainant may proceed upon it as if no demurrer had been interposed : 
 Burling v. Hammar, 20 N. J. Eq. 220. 
 
 1 See Spofford v. Manning, 6 Paige 383; Kuypers v. Keformed Dutch 
 Church, Id. 570 ; Clark u.^Phelps, 6 Johns. Ch. 214 ; Chase's Case, 1 Bland. 
 Ch. 206 ; McDermott v. fi'lois, R. M. Charl. 281 ; Robertson v. Bingley, 1 
 McCord's Ch. 352; Jarvis v. Palmer, 11 Paige 650. Where a bill is de- 
 murred to in part, and answered in part, the captions should be distinct, 
 and specify the nature of the pleadings ; and if they do not so specify 
 them, they will be had 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 similar 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. xxxv. 
 
 2 But facts charged on the complainant's information merely, are not ad- 
 mitted 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: Redmond v. 
 Dickerson, 1 Stockt. 507.
 
 OE THE DEFENCE. 661 
 
 speaking demurrer, and can not be sustained. 1 But if 
 the allegations are inconsistent or uncertain, or if any 
 material allegation be omitted, the construction on de- 
 murrer will be against the bill.(i) 2 
 
 The course of procedure on demurrer depends upon the 
 plaintiff's opinion of its validity. If he thinks that, as 
 the bill stands, the' -objection is good, but that he can 
 remove it by restating his case, he may submit to the 
 demurrer and amend his bill. If he thinks the demurrer 
 bad, he may set it down for argument. If the demurrer 
 is allowed on argument, the suit is at an end, unless the 
 demurrer is confined to a part of the bill, *or r*oop-i 
 the Court give permission to the plaintiff to 
 amend. If it is overruled, the defendant must make a 
 fresh defence by answer, unless he obtain permission to 
 avail himself of a plea.(&) 3 
 
 It is not compulsory on a defendant to demur. The 
 principal motives for doing so are, to avoid a prejudicial 
 discovery, and to prevent unnecessary expense. And 
 where the only matter in dispute is a point of law, this 
 
 (i) Mortimer v. Frazer, 1 Dan. Ch. P. 500 ; Taylor . 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. 
 
 (k) 1 Dan. Ch. P. 545-560 ; Orders of 1845, xliv.-xlvii. 
 
 1 A demurrer can be objected to as a speaking demurrer, only when it 
 introduces some new fact or averment which is necessary to support the 
 demurrer, and which does not distinctly appear on the face of the bill : 
 Brooks v. Gibbons, 4 Paige 374. See also on the subject, Tallmadge v. 
 Lovett, 3 Edw. .Ch. 563 ; Saxon . Barksdale, 4 Dessaus. 522 ; Redd v. 
 Wood, 2 Ga. Decis. 174 ; Gray v. Regan, 23 Miss." 304 ; Black . Shreeve, 
 3 Halst. Ch. 440. 
 
 8 See Simpson . Fogo, 1 Johns. & H. 18. 
 
 3 Story Eq. Plead. \ 460; Cole Co. v. Anghey, 12 Mo. 132 ; Henderson 
 r. Dennison, 1 Cart. (Ind.) 152. See, on this subject, Rules Eq. U. S. Cts., 
 No. xxxiv. ; Penna., No. xxxii. As to amendment of a demurrer, see IIol- 
 liday v. Riordon, 12 Ga. 417.
 
 662 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 
 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 un- 
 favorable comments. 1 And even when he wishes to avoid 
 discovery, he may now, to some extent, if the bill be de- 
 murrable, protect himself by answer. (7) 
 
 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 w T hich is the subject of denial, there is suffi- 
 cient to defeat the plaintiff's claim. 2 It is applicable, like 
 a demurrer, to any class of objections; but the most usual 
 grounds of plea are, 1. Want of jurisdiction; 2. Personal 
 disability in the plaintiff; 3. A decision already made by 
 the Court of Chancery, or by some other Court of com- 
 petent jurisdiction, or a suit already pending in a Court 
 of equity respecting the same subject. But the suit must 
 
 (Z) Mitf. 108 ; Wigr. on Discovery, 2d ed., p. 95 ; 38th Order of August, 
 1841. 
 
 1 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 S. & M. 17 ; Anderson v. Lewis, Freem. 
 206 ; Rambo v, Rambo, 4 Dessaus. 251 ; Niles v. Anderson, 5 How. (Miss.) 
 365 : Carter v, Longworth, 4 Ham. 384 ; Miller v. Saunders, 17 Ga. 92. See 
 ante, 332, note. 
 
 2 The office of a plea is not to " deny the equity (of a bill) but to bring 
 forward some fact which, if true, displaces it :" New Brunswick Co. v. 
 Muggeridge, 4 Drew. 696.
 
 OF THE DEFENCE. 663 
 
 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.(w) 4. Want of equity, where the equity depends on 
 a single point. 
 
 *Pleas of the first class, or those in which new 
 matter is alleged in avoidance, are termed affirm- 
 ative. They do not require any special comment, and 
 it will be sufficient to mention a few of the most ordinary 
 occurence, 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 considera- 
 tion without notice, (w) 1 
 
 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 plaintiff, by false allegation on 
 one point, has created an apparent equity, and asks dis- 
 covery as consequent thereon, e. g., where he alleges 
 
 (m) Orders of May, 1845, 16, 20, 21, 15 ; 1 Dan. Ch. P. 599, 604, 79 1 
 795. 
 
 (n) 1 Dan. Ch. P. 606-643. 
 
 1 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. Ch. 384 ; Bloodgood v. Kane, 8 
 Cowen 360. But it is not necessary to refer, in terms, to the statute which 
 creates the bar : Van Hook . Whitlock, 7 Paige 373. See Stearns v. Page, 
 1 Story 204. 
 
 A plea of stated account must aver that the accounts settled all dealings 
 between the parties, and were just, and fair, and due ; and these averments 
 must be supported by an answer to the same effect : Schwarz v. Wendell. 
 Harring. Ch. 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.
 
 664 ADAMS S DOCTRINE OF EQUITY. 
 
 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. (0} In order, therefore, to avoid such dis- 
 covery, he must resort to a negative plea, denying the al- 
 legation of partnership or heirship ; and until the validity 
 of his plea is determined, he will be protected from giving 
 discovery consequent on the allegation. 1 
 
 It is, however, very seldom that a pure negative plea 
 can be made available. For although it protects against 
 discovery consequent on the alleged equity, 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 excepted 
 from the plea, and must be given by an answer in sup- 
 port. Thus, if the equity alleged were that a testator 
 was indebted to the plaintiff, and the bill asked discovery 
 consequent on the debt, e. g., payment of interest, a plea 
 
 r*3381 ^ " no ^ e ^" wou ld cover *allthe discovery and 
 
 relief sought, including the allegation of debt, 
 
 but excepting the discovery in evidence of the debt.Qj*) 2 
 
 The same principle has been held applicable where the 
 
 plea was negative in substance though not in terms ; e. g.> 
 
 (o) Supra, Discovery. 
 
 (p) Thring . Edgar, 2 S. & S. 274 ; Denys v. Locock, 3 M. & C. 205. 
 
 1 A plea simply denying a fact alleged in the bill, as e. g., a partnership 
 is bad : Innes v. Evans, 3 Edw. Ch. 454 ; Bailey v. Le Roy, 2 Edw. Ch. 
 514 ; Black v. Black, 15 Ga. 445. 
 
 2 See Everitt v. Watts, 5. Edw. Ch. 486.
 
 OF THE DEFENCE. 665 
 
 where the bill alleged that a deceased person had left no 
 heirs ex parte paternd, and that the plaintiff was heir ex 
 parte mafornd, and alleged further, that the defendants by 
 correspondence had admitted the plaintiff's title, a plea 
 that a specified person was heir ex parte paternd was over- 
 ruled, because it was not coupled with an answer as to 
 the alleged correspondence.^) 
 
 There is a third class of plea, which may be termed 
 the anomalous plea, which is applicable when the plaintiff 
 has anticipated a legitimate plea, and has charged an 
 equity in avoidance of it ; e. g., when having stated his 
 original equity, he states that a subsequent release was 
 given, or is pretended by the defendant to have been 
 given, and charges fraud in obtaining such release. In 
 this case the release or other original defence may be 
 pleaded with 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 defence, with 
 averments in denial of the impeaching equity. 
 
 It is obvious from the nature of the anomalous plea, 
 that it is only good against the original equity, and is 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, tjut must in respect 
 of the plaintiff's right of discovery be the subject of a 
 full answer in support, (r) 1 
 
 
 
 (q) Wig. on Disc. ss. 115, 120; Emerson v. Harland, 3 Sim. 490; 8 Bli. 
 62 ; Clayton . Winchelsea, 3 Y. & C. 426. 
 (r) Foley v. Hill, 3 M. & C. 475. 
 
 1 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
 
 666 ADAMS'S DOCTRINE OF EQUITY. 
 
 Where an answer in support is not required, a plea to 
 .. _ all *the relief is a bar to all the discovery ; for 
 the discovery is only material in order to obtain 
 the relief, (s) It has been doubted whether this rule ap- 
 plies, where the relief is at law, i. <?., whether the defend- 
 ant 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 inconvenience 
 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.(^) 1 
 
 If an answer in support is requisite, the part to which 
 the plea applies must be distinctly shown, for the answer 
 
 (s) Sutton v. Scarborough, 9 Ves. 71. 
 
 (t) Hindman v. Taylor, 2 B. C. C. 7 ; Wigr. on Discovery, s. 66 ; Hare 
 on Discovery, p. 47-62. 
 
 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 
 Ga. 249 ; or would tend in any way to discredit it : Hunt v. Penrice, 18 
 Jur. 4. And the averments are as necessary as the answer ; for where a 
 bill charged misrepresentation, coercion, and fraud, in procuring a release 
 of a debt, and the defendant put in a plea and answer, and in his plea in- 
 sisted on the release in bar. without noticing the allegation of fraud, 
 though in the answer it was fully met and denied, the plea was held bad : 
 Allen v. Randolph, 4 Johns. Ch. 693. See also on this point, Fish v. 
 Miller, 5 Paige 26 ; Bolton v. Gardner, 3 Id. 273 ; Bellows v. Stone, 8 N. 
 H. 280; French v. Shottwell, 5 Johns. Ch. 555; Ferguson v. O'Harra, 1 
 Peters C.-C. 493. See as to rules in the United States and Pennsylvania, 
 ante, 332, note. 
 
 1 See Lane v. Stevens, 3 Edw. Ch. 480 ; 9 Paige 622 ; in which it was 
 decided, that a defendant in a suit at law can be compelled, through a dis- 
 covery bill, to answer, even though the discovery may be fatal to the de- 
 fence he sets up.
 
 OF THE DEFENCE. 667 
 
 is necessary in determining the validity of the plea. 1 If, 
 therefore, the plea cover too much, and so prevent an 
 answer on any material point, or if the answer, though 
 in terms applying to all the requisite discovery, be sub- 
 stantially insufficient, the plea will be disallowed.(w) 
 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 ex- 
 tended to ; or if the answer covered too much, and extend- 
 ed to some part overruled by the plea, in both cases the 
 plea was bad. 2 If an answer is not required in support, 
 the plea is not vitiated by applying it to too large a por- 
 tion of the bill, but may be allowed as to that part only 
 to which it would properly extend. And in this respect 
 
 (u) 1 Dan. Ch. P. 591 ; Foley v. Hill, 3 M. & C. 475 ; Harris . Harris, 3 
 Hare 450. 
 
 1 See Jarvis v. Palmer, 11 Paige 650. 
 
 2 An answer can overrule a plea only where it relates to matters which 
 the defendant by his plea declines to answer : Bogardus . Trinity Church, 
 4 Paige 178; Souzer v. De Meyer, 2 Id. 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. 
 Ch. 240. So, an answer containing more than is strictly applicable to the 
 support of the plea : Stearns v. Page, 1 Story 204. 
 
 If an answer commences as an answer to the whole bill, it overrules a 
 plea or demurrer to any particular part of the bill, although such part is 
 not in fact answered : Leacraft r. Demprey, 4 Paige 124. Now, however, 
 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 de- 
 fendant may extend to some part of the same matter, as may be covered 
 by such demurrer or plea.
 
 668 ADAMS'S DOCTRINE OF EQUITY. 
 
 it differs from a demurrer, which can not, as we have al- 
 ready seen, be good in part and bad in part.(^) 1 
 r*4(Vl *The form of a pure plea, whether affirmative 
 or negative, is that " This defendant doth plead 
 to the said bill, and for plea saith," &c., stating the matter 
 of avoidance or denial on which he relies ; and then con- 
 cluding, "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 
 
 (v) Mitf. 295. 
 
 1 A plea may be good in part or bad in part: French v. Shotwell, 20 
 Johns. 668 ; Kirkpatrick v. White, 4 Wash. C. C. 595. 
 
 Where a plea is overruled, the Court may either order it to stand for an 
 answer, with liberty to the plaintiff to except, or it may be overruled alto- 
 gether, and the defendant ordered to answer : Goodrich v. Pendleton, 3 
 Johns. Ch. 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 con- 
 stituted a valid defence to some material part of the matter to which it is 
 pleaded in bar : Orcutt v. Orms, 5 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 : Id. See also 
 Souzer v. De Meyer, 2 Paige 574 ; Leacroft v. Dernprey, 4 Id. 124. 
 When a plea is adjudged a good defence in part, and ordered to stand for 
 an answer, it is a sufficient answer to so much of the bill as it covers, unless 
 by the order the complainant is given leave to except: Beall v. Blake, 10 
 Ga. 449.
 
 OF THE DEFENCE. 669 
 
 bill as this defendant hath not pleaded to, answer and 
 say.'' &c., following the ordinary form of answers. (w) 
 
 The rules of pleading applicable to a plea are, that it 
 must raise a single issue, and that its averments must 
 have the same certainty as those of a plea at law. 
 
 It must be confined to a single issue. 1 It is not neces- 
 sary that it should consist of a single fact ; for the defence 
 offered by way of plea may in equity, as at law, consist 
 of many facts, provided they all tend to one point con- 
 stituting the defence. But it cannot include several de- 
 fences, or as it is technically termed, a defendant cannot, 
 without special leave, put in a double plea to the whole 
 bill, or to the same part of it. He cannot, for example, 
 plead to a charge of infringing a patent, first, that it is not 
 a new invention ; and secondly, that it is not a useful one ; 
 because either of these facts, if true, would be a separate 
 defence. (#) Of course this rule does not apply where the 
 bill makes a double claim, so as to prohibit different pleas 
 to the different *parts of such a bill ; for such pleas r*oA-t -i 
 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 
 
 (w) Denys v. Locock, 3 M. & C. 205. 
 
 (a:) Whitbread i-. Brockhurst, 1 B. C. C. 404 ; Kay v. Marshall, 1 Keen 
 190; Strickland r. Strickland, 12 Sim. 253. 
 
 1 Saltus v. Tobias, 7 Johns. Ch. 214 ; Van Hook v, Whitlock, 3 Paige 
 409 ; Goodrich v. Pendleton, 3 Johns. Ch. 386 ; Driver r. Driver, 6 Ind. 
 286. 
 
 The cases in which the court allows the defendant to make several de- 
 fences 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 ac- 
 counts, 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 p. Harrison, 1 Bland Ch. 491 ; Ridgley r. War- 
 field. 1 Id. 494, in notis.
 
 670 ADAMS'S DOCTRINE OF EQUITY. 
 
 of a plea at law. It has been already stated, that in 
 the bill and answer in equity, there is not required the 
 same certainty of averment as at law ; partly because it 
 is not necessary to reduce the 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 dis- 
 tinct. 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 de- 
 cided at the same time, but the law is first settled on tl^e 
 argument, and the fact afterwards at the hearing of the 
 plea. For this reason, the laxity of averment in a bill 
 and answer is not permitted in a plea ; but it is required 
 that every essential fact be expressly* averred, so that if 
 the validity of the plea be questioned, it may be clear at 
 the argument whether the alleged facts constitute a de- 
 fence ; 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. 1 This rule is in accord- 
 ance 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. (^) 
 
 The course of procedure on a plea will depend on the 
 
 (y) 1 Dan. Ch. P. 651-656. 
 
 1 Wild P. Gladstone, 15 Jur. 713. It seems the proper course is to move 
 to take the plea off file, if it be unsworn : Ibid.
 
 OF THE DEFENCE. 671 
 
 view taken by the plaintiff as to the sufficiency in law, 
 or the truth in fact, of the defence. If he thinks the plea 
 *valid, but that he can meet it by amendment, 
 he may do so. If he thinks it invalid, he may 
 set it down for argument. If he thinks it untrue, he 
 may file a replication, and go to a hearing on the issue of 
 its truth. 1 If the plea be overruled on argument, the de- 
 fendant must answer. Or the ourt may pursue an in- 
 termediate course by reserving the benefit of it till the 
 hearing, qr by directing it to stand for an answer with 
 liberty for the plaintiff to except to its sufficiency. 2 If it 
 i- allowed on argument, its validity is established, but the 
 plaintiff may still file a replication, and go to a hearing 
 on the question of its truth. He may sometimes, too, 
 obtain permission to amend his bill, but this is not a 
 matter of course after the allowance of a plea, and will 
 only be granted on a special application. If the plea be 
 replied to. either originally or after its allowance on argu- 
 ment, 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 dis- 
 proved, he can set up no further defence, but a decree 
 will be made against him.(0) 
 
 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) I Dan. Ch. P. 656-668, 1845-48-50. 
 
 1 See, as to the practice in this point, Wilkes p. Henry, 4 Edw. Ch. 672. 
 
 2 See cases cited, supra, note, p. 339.
 
 672 ADAMS'S DOCTRINE OF EQUITY. 
 
 use all or any of his grounds of defence, subject only to 
 the necessity of verifying them on oath j 1 and an objec- 
 tion which might have been made by demurrer or plea, 
 will, in most cases, be equally a bar to relief when insisted 
 on by answer, although it will not, as we have already 
 seen, excuse the defendant from giving the discovery re- 
 quired 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 
 pojo-i *was valid at the hearing, but that the case 
 might stand over for the plaintiff to amend, sub- 
 ject, however, if notice had been given by the answer, to 
 payment of the defendant's costs of the day. This rule 
 has been recently modified in two respects; viz., 1. 
 Where an objection for want of parties is suggested in 
 the answer, by enabling the plaintiff to set it down for 
 immediate argument, and if he neglect to do so by debar- 
 ring 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, and secondly a discovery 
 in aid of the plaintiff. It commences, "This defend- 
 ant, reserving to himself all benefit of exception to the 
 said complainant's said bill of complaint, for answer 
 thereto saith." 1 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. lii., liii. ; Penn. xxv., xxvii.] 
 
 1 See Daniels' Ch. Prac. 748. 
 
 2 The general reservation of exceptions in the commencement of an
 
 OF THE DFFENCE. / 673 
 
 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, "Without 
 this, that," &c., and is filled up in the engrossment. 
 
 It is said to have obtained, when the practice was for 
 the defendant to set forth his case, without answering, 
 every clause in the bill. And, though now unnecessary, 
 it is still continued in practice. (#) 
 
 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 imper- 
 tinence. 1 
 
 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 
 *which has been given him by his professional 
 advisers, or statements of facts which have passed 
 
 (b) Mitf. on Plead. 314. 
 
 answer cannot be relied on as raising exceptions to the jurisdiction ; neither 
 can it perform the office of a general demurrer, or of exceptions to the aver- 
 ments of the bill : O'&eill . Cole, 4 Md. 107 ; Oldham v. Trimble, 15 Mo. 
 225, 
 
 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: Rabbett v. Squire, 1 Eq. Rep. 56. 
 
 1 Repetition of a material statement ia an answer to an amended bill is 
 impertinent. It is no defence to an application to strike out impertinent 
 matter, that it will make the pleading inconsistent, unreasoning, and in- 
 congruous : Allfrey . Allfrey, 14 Beav. 235 ; 15 Jur. 831 ; Gier v. Gregg, 
 4 McLean L'nJ. 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. Mathewson, 1 R. I. 397. 
 43
 
 674 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 prejudi- 
 cial to the community; but subject to these restrictions, 
 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 legiti- 
 mate interrogatory, and he must answer distinctly, com- 
 pletely, without needless prolixity, and to the best of his 
 information and belief, (c) 1 He is not, however, bound to 
 
 (c) Supra, Discovery. 
 
 1 See Story's Equity Pldg. || 846-848 ; Brooks v. Byam, 1 Story 296; 
 Taylor v. Luther, 1 Sumner 228 ; Bradford v. Geiss, 4 W as h. C. C. R. 513 ; 
 Devereaux v. Cooper, 11 Verm. 103 ; Woods v. Morrell, 1 Johns. Ch. 103 5 
 Robertson v. Bingley, 1 McCord's Ch. 333 ; Hagthorp . Hook, 1 Gill & J. 
 270; Bailey v. Wilson. 1 Dev. & Batt. Eq. 182 ; Carrieal v. Wilson, 3 Litt. 
 80 ; Dinsmoor v. Hazleton, 2 Foster 535 ; Warren v. Warren, 30 Verm. 
 530 ; McKim v. White Hall Co., 2 Md. Ch. 510.; Wootten v. Burch, Id. 
 190 ; Kinnaman v. Henry, 2 Halst. Ch. 90. It is a general rule that a de- 
 fendant cannot, by answer, 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. That an answer is insufficient in some par- 
 ticulars, dges not destroy its effect upon the points upon which it answers 
 directly : Whitney v. Robbins, 2 Green (N. J.) 360. 
 
 A defendant need not amswer 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 Md. Ch. 358. Yet in 
 such case it should appear that an answer would, in no aspect of the com- 
 plainant's case as made by the bill, be of service to him : Gilkey . Paige, 
 Walker's Ch. 520. Nor need a defendant answer any interrogatory not 
 founded on some allegation in the bill: Miller v. Saunders, 17 Ga. ( J2; nor 
 respond to an allegation as to his own insolvency : Mayer v. Galluchat, 6 
 Rich. Eq. (S. C.) 1. 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. Ch. 297. Where a fact is charged in a 
 bill, which is within the defendant's knowledge as an act done by him, he
 
 OF THE DEFENCE. 675 
 
 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 to prove. And in such cases it is 
 generally advisable to detail exactly the facts or evidence, 
 
 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 excep- 
 tion to the rule : Carey . Jones, 8 Ga. 516. A defendant cannot be com- 
 pelled to answer interrogatories based upon a hypothetical statement in 
 the bill : Grim v. Wheeler, 3 Edw. Ch. 334. Nor a mere recital in the bill : 
 Mechanics' Bank v. Levy, 3 Paige 606. Nor a mere arithmetical proposi- 
 tion : Mclntyre v. Union College, 6 Id. 239. And where there is a general 
 denial in the defendant's answer, which is clear and distinct, any am- 
 biguity in a particular part will not vitiate or destroy other parts. The 
 whole answer is to be taken together. See Smith v. Fisher, 2 Dessaus. 
 -~~> : and, in addition, upon the requisites of the answer, note, page 307, 
 ante. 
 
 By the Equity Rules of the U. S. Courts, No. xxxix., and of Penna., No. 
 xxxviii., 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 longer 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 entitled in 
 all cases, by answer, to insist upon all matters of defence (not being mat- 
 ters 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 support of such plea, 
 touching the matters set forth in the bill to avoid or repel the bar or de- 
 fence. Thus, for example, a bonafide purchaser, for a valuable considera- 
 tion, without notice, may set up the defence by way of answer instead of 
 plea, and will be entitled to the same protection, and will not be compella- 
 ble to make any further answer or discovery 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 would 
 entitle the complainant to relief: Lockard v. Lockard, 16 Ala. 423. 
 
 The 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 subject 
 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, &c., R. R., 7 Hare 258 ; 
 2 Ph. 673.
 
 676 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 defendant cannot state as to his belief or 
 otherwise whether/' &c. 
 
 In framing an answer it is seldom possible to keep 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 defensive 
 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 referred to in the 
 *kody of the answer, by stating that they are an- 
 nexed thereto, and praying that they may be 
 taken as part thereof. 
 
 After the answer is put in, the next step in procedure 
 regards the question of its sufficiency, viz., whether the 
 defendant has given all due discovery. If he has not, 
 the plaintiff may except. 1 The exceptions are signed by 
 
 1 Exceptions are applicable, however, only where matters alleged in the 
 bill are not sufficiently answered, and not because the answer does not state 
 matters set forth in avoidance or defence, with fullness and explicitness : 
 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 Ala. 23.
 
 OF THE DEFENCE. 677 
 
 counsel, and are delivered within a limited time to the 
 proper officer. 1 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 defend- 
 ant." They then go on successively, " First, for that the 
 said defendant has not, to the best of his knowledge, re- 
 membrance, information, and belief, answered and set 
 forth whether," &c., following the words of the interroga- 
 tory which has been insufficiently answered ; " Secondly, 
 for that the said defendant has not in manner aforesaid 
 answered and set forth whether," &c., following the words 
 of the next interrogatory which has been insufficiently 
 answered ; and so on throughout; and they then conclude, 
 " In all which particulars the said complainant excepts to 
 the answer of the said defendant, and humbly prays that 
 the said defendant may be compelled to put in a sufficient 
 answer thereto." If the defendant does not submit to the 
 exceptions, they are referred to one of the Masters for 
 consideration ; and if he reports the answer insufficient, a 
 further answer must be filed on the points excepted to. 
 If either party is dissatisfied with the Master's decision, 
 he may bring the question before the Court by excep- 
 tions to the report, and it will then be finally decided. If 
 the . defendant puts in a second or third insufficient an- 
 swer, the plaintiff does not deliver new exceptions, but 
 must refer it for insufficiency on the old ones, pointing 
 out in the order which he obtains, the particular excep- 
 tion or exceptions to which he requires a further answer. 2 
 If a third answer is reported insufficient, the defendant is 
 
 1 Improperly or carelessly drawn exceptions will be overruled : Duke of 
 Brunswick r. Duke of Cambridge, 12 Beav. 279; McKeen v. Field,4Edw. 
 Ch. 37'J. 
 
 2 See Rider v. Riely, 2 Md. Ch. 16.
 
 678 ADAMS'S DOCTRINE OF EQUITY. 
 
 examined personally on interrogatories ; and is committed 
 to prison until he shall have perfectly answered them. 1 
 
 *The next step, after the sufficiency of the an- 
 swer is determined, is the amendment of the 
 plaintiff's bill. 2 Before the answer is filed, the plaintiff 
 
 1 See, on the practice as to exceptions to answers, Rules in Equity of U. 
 S. Courts, 'No. Ixi., &c. ; Penn., xl., xliii., &c. 
 
 2 See, as instances of amendment, Noyes v. Sawyer, 3 Verm. 160 ; Aren- 
 dell v. Blackwell, 1 Dev. Eq. 354 ; Stephens v. Terrel, 3 Monr. 131 ; Gayle 
 v. Singleton, 1 Stew. 566 ; Ontario Bank v. Schermerhorn, 10 Paige 109 ; 
 Ayres v. Valentine, 2 Edw. Ch. 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. 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: Mitchells. Lenox, 1 Edw. Ch. 428. Nor where the court is satisfied 
 that the proposed allegation cannot be substantiated : Prescott v. Ilubbell, 
 1 Hill. Ch. 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. Ch. 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. Ch. 184. See farmers' and Mechanics' 
 Bank v. Griffith, 2 Wis. 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 sub- 
 stance itself, nor repugnant thereto; and not so as to create a different case 
 or a new bill, or it will be demurrable : Carey v. Smith, 11 Ga. 539 ; Lar- 
 kins v. Biddle, 21 Ala. 252 ; Lyon v. Tallmadge, 1 Johns. Ch. 184 ; Garner 
 v. Keaton, 13 Ga. 431 ; Humbly v. Stainton, 24 Ala. 712 ; Shields v. Bar- 
 row, 17 How. U. S. 130 ; School Dist. v. Macloon, 4 Wis. 79. So they are 
 permissible only as respects matters occurring prior to the filing of the 
 original bill : Burke v. Smith, 15 111. 158. On demurrer, however, the court 
 cannot inquire into the competency or regularity of an amendment pre- 
 viously allowed by the order of the court : McGehee v. Jones, 10 Ga. 127. 
 An injunction or other sworn bill cannot be amended by striking out ma- 
 terial and substantial allegations and charges ; but only by addition of ex- 
 planatory or supplemental statements : Carey v. Smith, 11 Ga. 539; and 
 in such case the amendment must also be verified under oath. The com- 
 plainant also must show a sufficient excuse, and the application must be 
 made as soon as the necessity is discovered : Id. ; McDougaldv. Dougherty,
 
 OF THE DEEFNCE. 679 
 
 may amend as often as he thinks fit ; but after an answer, 
 he is precluded from doing so, until its sufficiency or in- 
 sufficiency is admitted or determined. If the answer be 
 insufficient, 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 replication, 
 followed up, if necessary, by rejoinder, surrejoinder, &c., 
 according to the forms of pleading at law. But the 
 
 11 Ga. 570. Where the new matter would affect the opposite party preju- 
 dicially, 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 Ga. 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 . 
 Stamper, 10 Ga. 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 aworn bill, it will be struck out on motion : Molyneaux v. 
 Collier, 13 Ga. 406 ; see Michan v. Wyatt, 21 Ala. 813. An amended bill 
 is to be considered in many respects as an original bill : Carey v. Smith, 
 11 Ga. 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 Ga. 534. 
 
 See, on the subject of amendments, Rules in Equity in the U. S. Courts, 
 Nos. xxviii., xxxv., xlvi. ; in Pennsylvania, Nos. xlviii. toliv. Under these 
 rules 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 ; especially 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.
 
 680 ADAMS'S DOCTRINE OF EQUITY. 
 
 modern practice is to amend the bill. If the amendments 
 make further discovery requisite, the plaintiff may call 
 for a further answer. And if he has successfully excepted 
 to the answer, and the exceptions have not been answered, 
 he may require the amendments to be answered at the 
 same time. If the plaintiff does not require a further 
 answer, the defendant may nevertheless file one if he con- 
 siders 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 circum- 
 stances obtain a similar indulgence ; x but as an answer is 
 
 (d) Orders of May, 1845, Ixix., Ixx., Ixxi.; 1 Dan. C. P. 376, 400. 
 
 1 In mere matters of form, or mistakes of dates, or verbal inaccuracies, 
 Courts of Equity are very indulgent in allowing amendments of answers ; 
 but reluctant to allow amendments in material facts, or such as essentially 
 change the ground taken in the original answer : Smith v, Babcock, 3 
 Sumn. 583 ; see also Jackson v. Outright, 5 Munf. 308 ; McWilliams v. 
 Herndon, 3 Dana 568 ; Stephens v. Terrel, 3 Monr. 131 ; Carey v. Ector, 7 
 Ga. 99; Thomas v. Doub, 1 Md. 252 ; Mounce v. Byars, 11 Ga. 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 testimony have indicated how it may be modi- 
 fied to accomplish his purposes : Williams v. Savage Manufact. Co., 1 Md. 
 Ch. 5 06 ; and see Campion v. Killey, 1 McCart. 229. A motion for leave 
 to file a supplementary answer must be accompanied with an affidavit : 
 Thomas v. Doub, 1 Md. 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 Md. Ch. 111. 
 
 See further, on this subject, Phelps v. Prothero, 2 De G. & Sm. 274.
 
 OF THE DEFENCE. 681 
 
 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 full 
 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 defendant 
 had been ^induced to leave out a fact in the [-#047-1 
 original answer by the mistaken advice of his 
 solicitor. 1 But the Court is always unwilling to give this 
 permission, where the new matter would be prejudicial 
 to the plaintiff, though it will be inclined to yield if it is 
 intended for his benefit. 2 If the error to be corrected 
 is a mere matter of form, it may be done by amending 
 and re-swearing the answer. But when the object is to 
 correct a mistaken statement, or to introduce new matter, 
 it must be done by a supplemental answer, leaving the 
 former answer on the record. (<?) If the defendant cannot 
 obtain permission to file a supplemental answer, he has 
 no other way of correcting his original answer. He can- 
 not do so by filing a cross bill.(/) 
 
 (e) Curling v. Townshend, 19 Ves. 628 ; Greenwood v. Atkinson, 4 Sim. 
 54 ; Fulton v. Gilmore, 1 Ph. 522 ; Bell v. Dunmore, 7 Beav. 283 ; 1 Dan. 
 Ch. P. 752, 757. 
 
 (/) Berkley v. Rider, 2 Ves. 533, 537. 
 
 1 A defendant may, for good cause shown, be permitted to amend his 
 answer, and plead the Statutes of Frauds and Limitations, after the issue 
 joined, and it is sufficient ground that the defendant's counsel advised him 
 that he could take advantage of such defence without pleading : Jackson 
 v. Cutri^ht. 5 Munf. 308. 
 
 8 See Western Reserve Bank v. Stryker, 1 Clarke Ch. 380, 383 ; Mounce 
 v. Byars, 11 Ga. 180.
 
 682 ADAMS'S DOCTRINE OF EQUITY. 
 
 The final results 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 bearing 
 on his own case. If the answer admits his claim, and he 
 is content that it shall be taken as true throughout, the 
 cause may be heard on bill and answer. If he intends 
 to controvert any part of the answer, or requires ad- 
 ditional proof of his case, he must join issue with the de- 
 fendant, in which case he is required to file a replication, 
 stating the course he intends to pursue ; T and it is re- 
 quired 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, (h) If the plaintiff omit to file a replication in 
 time, the defendant may dismiss the bill for want of 
 prosecution, (i) 2 
 
 (g) Orders of May, 1845, xciii. 
 
 (h) Orders of May, 1845, 16, 37-41, 93 ; 1 Dan. Ch. P. c. 19. 
 
 (i) Orders of 1845, xciv. ; 1 Dan. Ch. P. 767, 784. 
 
 1 Special replications are now disused: White v. Morrison, 11 111. 361 ; 
 Duponti v. Mussy, 4 Wash. C. C. 128 ; and are expressly prohibited by the 
 rules in equity of the U. S. Courts, No. xlv., and of Penn., xlviii. The 
 general replication, however, puts in issue only the allegations of bill and 
 answer. The proper course is for the complainant, if he is aware of an in- 
 tended defence, to anticipate it in his bill by suitable charges and allega- 
 tions ; or he may have leave to amend on motion, where necessary : AVhite 
 0. 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 represented: McKim v. White Hall Co., 2 Md. Ch. 510. A 
 general replication waives all objection to the sufficiency of the answer : 
 Slater v. Maxwell, 6 Wall. (U. S.) 268. 
 
 2 See equity rules U. S. Courts, No. Ixvi. ; of Pennsylvania, No. xlvii. 
 Where a suit becomes nugatory by matters subsequent, as where filed on
 
 OF INTERLOCUTORY ORDERS. 683 
 
 *CHAPTER V. [*34S] 
 
 OF INTERLOCUTORY ORDERS. 
 
 THE answer of the defendant is the chief foundation of 
 interlocutory orders, that is, orders not made at the hear- 
 ing of the cause, but obtained during its progress for inci- 
 dental 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 an- 
 swer have generally a considerable influence on the appli- 
 cation, 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 deponents, (a) 
 
 It is not necessary for the purpose of this Treatise to 
 discuss the practice on motions and petitions. / But it will 
 be sufficient to observe that they are divided into two 
 classes, viz., 1. Motions and petitions of course, or such 
 
 (a) 2 Dan. Ch. P. c. 30, of Affidavits. 
 
 the authority of a reported case, afterwards reversed, the Court has juris- 
 diction, on motion to dismiss it without costs : Sutton, &c., Co. v. Hitchens, 
 15 Beav. 161. 
 
 A plaintiff in Chancery has a right to dismiss his bill at any time before 
 final hearing upon payment of costs, if he be not in contempt : Elderkin 
 v. Fitch, 2 Carter (Ind.) 90. But to this there may be some exceptions. 
 See Saylors Appeal, 39 Penn. St. 495.
 
 684 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 application is of the 
 latter kind, it will not be granted ex parte, except in cases 
 of emergency, but notice of the motion, or a copy of 
 *the petition, must be previously served on all 
 parties interested, (b) 
 
 The procedure by petition is also resorted to for a 
 variety of objects not arising- in the progress of a suit, 
 but dealt with under the summary jurisdiction by statute, 
 already noticed as existing in the Court, (<?) e. g., for con- 
 veyance 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 au- 
 thority of the Court, (d) The jurisdiction over solicitors, 
 and in lunacy and bankruptcy, is also exercised by orders 
 on petition. 
 
 The objects of interlocutory orders are numerous. They 
 include, for instance, the issuing of attachments or other 
 process of the Court, the taking of bills pro confesso, the 
 compelling of 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 mate- 
 rial to be here noticed are five in number, viz., 1. The 
 
 (b) 2 Dan. Ch. P. c. 31 ; Interlocutory Application. 
 
 (c) Supra, Introduction, 2 Dan. Ch. P. c. 40. 
 
 (d ) Supra, Infants, 2 Dan. Ch. P. 29.
 
 OF INTERLOCUTORY ORDERS. 685 
 
 production of documents ; 2. The payment of money into 
 Court ; 3. The appointment of a receiver ; 4. The grant of 
 an injunction ; and 5. A writ of ne exeat regno. 
 
 I. The production of documents is ordered for comple- 
 tion of the discovery in the defendant's answer, (e) 1 
 
 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 doc- 
 uments in the defendant's power relating to the subject- 
 matter of the suit. But the documents still remain to be 
 examined, and *the information which they con- 
 tain is frequently the most important part of the 
 discovery. For the purpose of obtaining such examina- 
 tion, the plaintiff is entitled, either before or after the 
 sufficiency of the answer has been determined, and with- 
 out prejudicing any question on that point, or at any sub- 
 sequent 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 applica- 
 tion an order will be made that they shall be deposited 
 with the clerk of records and writs, or, if a special reason 
 be shown, e. g., their being in constant use in the defend- 
 ant's business, then in the defendant's own office, (g) 
 
 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 
 
 (e) 2 Dan. Ch. P. o. 38. 
 
 (/) Lane . Paul, 3 Beav. 66 ; Fencott v. Clarke, 6 Sim. 8. 
 
 (g) Prentice v. Phillips, 2 Hare 152. 
 
 1 See on this subject, ante, B. i.. Ch. 1.
 
 686 ADAMS'S DOCTRINE OF EQUITY. 
 
 alone, and does not depend on nor will be aided by a title 
 to possess the documents themselves. 2. The existence 
 of the right must be shown from admissions in the answer 
 that the documents are in the defendant's possession or 
 power, and that they are of such a character as to consti- 
 tute 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 ma- 
 terial for making out his defence 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, (h) 1 
 
 In a case of obvious and gross misconduct, where the 
 plaintiff has made affidavit of the facts, and the defendant 
 *has attempted to explain them by a counter af- 
 fidavit, 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 answer 
 is put in, and that it must be sustained entirely on the 
 admissions made. The reason of this requirement is that 
 the motion is made before witnesses can be regularly ex- 
 amined, and therefore the defendant may fairly claim that 
 either his answer shall be taken as true, or that the adju- 
 dication shall be delayed till he has an opportunity of 
 
 (A) 2 Dan. Ch. P. c. 36. 
 
 (') Jervis v. White, 6 Ves. 738. 
 
 1 See on this subject, Hosack . Rogers, 9 Paige 468 ; Clagett v. Hall, 9 
 Gill & John. 81 ; Contee v. Dawson, 2 Bland. 293 ; Nokes . Seppings, 2 
 Phillips 19 ; Maddox v. Dent, 4 Md. Ch. 543 ; Daniels' Chan. Prac., Ch. 
 xli. ; Hagill v. Currie, 2 Ch. L. R. 449.
 
 OF INTERLOCUTORY ORDERS. 687 
 
 proof. (7r) The admissions necessary to warrant the order 
 are, first, that the defendant has the fund in his hands, 
 or at all events that he once had it, and has not legiti- 
 mately disposed of it ; secondly, that he does not claim 
 it as his own ; and thirdly, that the applicant is interested 
 in it.(^) 1 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 ori- 
 ginal hearing and the hearing on further directions, either 
 on admission in the examination of an acting party, or on 
 the Master's report, (w) 2 
 
 The order thus made is strictly one of precaution. The 
 fund is brought into Court, that it may be preserved until 
 the decree, and not that an earlier decision of the cause 
 may be made. The Court will not therefore, indirectly 
 adjudicate on the right, as, for example, by directing pay- 
 
 (k) Richardson v. Bank of England, 4 M. & C. 165, 176 ; Boschetti v. 
 Power, 8 Beav. 98. 
 
 (1} Freeman r. Fairlie, 3 Meriv. 29, 39 ; Meyer v. Montriou, 4 Beav. 
 343 ; Dubless r. Flint, 4 M. & C. 502. 
 
 (i) Hatch v. - , 19 Ves. 116 ; Creak r. Capell, 6 Mad. 114. 
 
 1 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 what- 
 ever : and the facts on which these positions are based, must 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 proceedings : Hop- 
 kins c. McEldery, 4 Md. Ch. 23. A contingent interest, however, is sufficient 
 to entitle a party to move : Ross v. Ross, 12 Beav. 89 ; Bartlett v. Bartlett, 
 4 Hare 631. A final order upon a petition asking the defendant to bring 
 money into court for the purpose of investment, cannot be passed without 
 notice to, or hearing of, the opposite party, who has answered the petition 
 and objected to the application : Brooks v. Dent, 4 Md. Ch. 473. 
 
 1 The order cannot be made on motion after decree, and before hearing 
 on further directions, merely on admissions in the answers : Binns r. Parr, 
 7 Hare 288 ; Wright v. Lukes, 13 Beav. 107.
 
 688 ADAMS'S DOCTRINE OF EQUITY. 
 
 ment of interest to one of the litigants, but will retain the 
 fund untouched until the hearing of the cause, (n) 
 
 The principle on which the order is based is that the 
 fund, of which payment into Court is asked, is a fund 
 held by the defendant in trust ; and it therefore does not 
 apply to suits for a mere payment of a debt claimed as 
 due from the defendant to the plaintiff. But to this rule 
 por 21 there are *two apparent exceptions : the one in 
 the case of an executor who owes money to his 
 testator, the other in that of a purchaser, sued for specific 
 performance, who is in possession of the land, and has 
 not paid his purchase-money. The reason of the first 
 exception is that the executor, being himself both debtor 
 and creditor, is presumed in equity to have discharged 
 himself of the debt, and to have retained the money as 
 part of the assets, (o) That of the second is, that though 
 the purchaser may be ultimately entitled, according to 
 the result of the suit, either to the estate or to the 
 purchase-money, yet he cannot be entitled to both ; and 
 therefore his election to keep possession of the estate is 
 in substance an election to be a trustee of the purchase- 
 money, (p) 
 
 The mode of obtaining the order is by a motion made 
 on notice, that the defendant may be ordered on or before 
 a specific day to pay the amount into the name, and with 
 the privity of the Accountant-General, in trust in the 
 cause ; and that the same, when paid in, with all accumu- 
 lations thereon, may be laid out in the purchase of three 
 per cent, consols. 
 
 (n) Nedby v. Nedby, 4 M. & C. 367. 
 (o) Richardson 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. 689 
 
 If the object is to obtain a transfer of stock, the terms 
 of notice are varied accordingly. 
 
 III. A receiver is appointed where an estate or fund is 
 in existence, but there is no competent person entitled to 
 hold it, or the person so entitled is in the nature of a 
 trustee, and is misusing or misapplying the property, (q} 1 
 
 The former of these grounds applies where the owner 
 of property is dead, and probate or administration has not 
 been granted, but is bond fide litigated in the Ecclesias- 
 tical Courts. In this case a receiver will be appointed of 
 the personal assets, not on the ground that the contest 
 exists, but because there would otherwise be no proper 
 person to receive them. If, on the contrary, pro bate* or 
 administration has *been granted, there is a pro- r#oo-i 
 per person, and the pendency of litigation to re- 
 
 () 2 Dan. Ch. P. c. 35 ; [Chap, xxviii., 3d Arner. ed.] 
 
 1 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 . Harvey, 1 Foster (N. H.)514; Reid v. Reid, 38 Ga. 24. 
 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 . Peters, 
 9 Gill 472 ; Dougherty v. McDougal, 10 Ga. 121 ; Furlong v. Edwards, 3 
 Md. 99 ; Blondheim . Moore, 11 Id. 374 ; Haight . Burr, 19 Id. 134; and 
 a Court of Chancery will never-appoint a receiver pending a plea to its 
 jurisdiction, but to guard against abuse of dilatory pleas will order an im- 
 mediate hearing or trial of the plea: Ewing v. Blight, 3 Wall. Jr. 139. 
 
 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 decree : 
 Nichols v. The Perry Patent Arm Co., 3 Stockton 126. 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 diffi- 
 culty : Owen r. Ilocian, 3 M. & G. 378 ; s. c. 4 House Lds. Cas. 997 ; see 
 Lenox v. Notrebe, 1 Hempstead 225; see also Baker v. Backers, 32 111. 
 80. A receiver has no powers except those conferred upon him by the 
 order for his appointment : Grant v. Davenport, 18 Iowa 179. 
 44
 
 690 ADAMS'S DOCTRINE OF EQUITY. 
 
 call the grant will not warrant a receiver, (r) 1 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 obvipus instance of the second ground 'of 
 appointment is in the case of actual trustees, who are 
 abusing their trust, and bringing the property into danger. 
 But unless there be misconduct on their part, the Court 
 will not interpose to take the property from them for the 
 mere purpose of confiding it to an officer of its own.(s) 
 
 If, again, the legal owner, though not an actual trustee, 
 holds the property subject to clear equities in other par- 
 ties, but is using it in a manner inconsistent with them, 
 a receiver may be obtained against him. On this prin- 
 ciple an equitable mortgagee may have a receiver against 
 his mortgagor. If there be a prior mortgagee not in pos- 
 session, the receiver may be appointed, without prejudice 
 to his taking possession ; but, if he be in possession, a 
 receiver cannot be ordered against him unless the appli- 
 cant will pay off his demand, as he states it himself. A 
 legal mortgagee cannot have a receiver, but must take 
 possession under his legal title, () 
 
 (r) Atkinson v. Henshaw, 2 Ves. & B. 85 ; Kendall v. Kendall, 1 Hare 
 152 ; Reed v. Harris, 7 Sim. 639. 
 
 [s] Middleton v. Dodswell, 13 Ves. 266; Browell v. Reed, 1 Hare 434; 
 Bainbridge v. Blair, 3 Beav. 421 ; Skinners' Company v. Irish Society, 1 
 M. & C. 162. 
 
 (t) Berney v. Sewall, 1 Jac. & W. 627. 
 
 1 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 war- 
 rant the interference of the Court : Whitworth v. Whyddon, 2 M. & G. 
 56 ; s. c. 2 H. & Tw. 445 ; 15 Jur. 152; In Dimes v. Steinberg, 2 Sin. & 
 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. 691 
 
 If there are several equitable encumbrancers the Court 
 will put the property in the possession of a receiver, to 
 apply the profits for their benefit according to their re- 
 spective priorities, permitting legal encumbrancers to pro- 
 ceed at law ; and the appointment will not prevent their 
 so doing, though it will make it necessary for them to ob- 
 tain leave from the Court, (u) 
 
 *A receiver has also been appointed as between 
 vendor and purchaser during a suit for specific *- 
 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 concern. 1 
 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 protection of all, and 
 will appoint a receiver to get in the assets. It cannot, 
 however, undertake to carry on the trade, and will there- 
 fore only interpose with a view to dissolution. (w) 2 On 
 the same principle, a receiver may be appointed of a mine 
 
 () Davis v. Marlborough, 2 Sw. 138 ; Angel v. Smith, 9 Ves. 335 ; 
 Brooks v. Greathed, 1 J. & W. 178 ; Smith v. Effingham, 2 Beav. 235 
 Pritchard v. Fleetwood, 1 Meriv. 54. [See Cortleyeu . Hathaway, 3 
 Stockt. 39.] 
 
 (v) Hall v Jenkinson, 2 Ves. & B. 125 ; Boehm v. Wood, 2 J. & W. 236 ; 
 Shakel v. Marlborough, 4 Mad. 463. 
 
 (tc) Waters v. Taylor, 15 Ves. 10 ; Goodman v. Whitcomb, 1 J. & W. 
 589 ; Hale v. Hale, 4 Beav. 369 ; Const v. Harris, T. & R. 496 ; Smith v. 
 Jeyes, 4 Beav. 503. 
 
 1 See Whitman v. Robinson, 21 Md. 30. 
 
 2 See note 1, p. 241, supra. See also Sieghortner v. Weissenborn, 20 N. 
 J. Eq. 172.
 
 692 ADAMS'S DOCTRINE OF EQUITY. 
 
 or colliery, which is regarded rather as a trade or partner- 
 ship than as a mere tenancy in common, (x) In the case 
 of a mere tenancy in common, where the title is legal, it 
 is doubtful whether the Court would interfere. 1 It might 
 compel the tenant in possession to account to his co- 
 tenant, but would probably not act against his legal pos- 
 session, (y) 
 
 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. (0) 2 
 
 The appointment of a receiver, like payment of money 
 *into Court, may be ordered on affidavit before 
 answer, or even before the defendant has ap- 
 peared, if any urgent necessity exist. 3 But the application 
 must generally be made after answer, and must be sup- 
 ported by the admissions of the defendant, (a) 
 
 The appointment, when made, is for the benefit of all 
 
 (a;) Jefferys v. Smith, 1J. & W. 298. 
 
 (y) Tyson . Fairclough, 2 S. & S. i 42. 
 
 (z) Stilwell v. Wilkins, Jac. 280; Huguenin v. Basely, 13 Ves. 105; 
 Jones v. Goodrich, 10 Sim. 327 ; Clark v. Dew, 1 R. & M. 103 ; Toldervy 
 u. Colt, 1 Y. & C. 621. 
 
 (a) Lloyd v. Passingham, 3 Meriv. 697 ; Ramsbottom v. Freeman, 4 
 Beav. 145. 
 
 1 See, however r Williams v. Jenkins, 11 Ga. 595. 
 
 2 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 posses- 
 sion of the estates, to grant him a receiver, or put them out of possession : 
 Talbot v. Scott, 27 L. J. Ch. 278 ; 4 K. & J. 96. 
 
 3 A temporary or ad interim receiver may not only be appointed before 
 answer, but even before the subpoena 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. Dougherty, 
 10 Ga. 274; Williams v.. Jenkins, 11 Id. 595.
 
 OF INTERLOCUTORY ORDERS. 693 
 
 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 ad- 
 verse claims in different parties, the possession of the 
 receiver is treated as the possession of the party who 
 ultimately establishes his right, (b) 1 
 
 IV. An injunction is granted to restrain a defendant, 2 
 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 
 
 (6) Bainbrigge . Blair, 3 Beav. 421 ; Sharp v. Carter, 3 P. Wins. 379. 
 (c) 2 Dan. Ch. P. ch. 32. 
 
 1 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 parties, and his 
 appointment is not to oust any party of his right to the possession, but 
 merely to retain it for the benefit of the party ultimately entitled ; and 
 when he is ascertained, the receiver will be considered as his receiver : 
 Ellicott v. Warford, 4 Md. 80 ; Matter of Colvin, 3 Md. Ch. 280. See 
 further, as to the power and authorities of receivers, Porter . Williams, 
 5 Selden 142 ; Receivers v. Patterson Gaslight Co., 3 Zabrisk. 283. 
 
 AVhere a receiver is appointed, but the bill is afterwards dismissed for 
 want of equity, the functions of the receiver cease, inter paries, but his ac- 
 countability 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 tAe 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 process of garnishment: 
 Field v. Jones, 11 Ga. 413. 
 
 It is not necessary to bring to a hearing a suit for the appointment of a 
 receiver pendente lite : Anderson v. Guichard, 9 Hare 275. 
 
 2 An injunction cannot be granted against one who is not a party to the 
 suit : Schalk v. Schmidt, 1 McCart. 268.
 
 694 ADAMS'S DOCTRINE OF EQUITY. 
 
 been considered as an independent subject, (d) We are 
 now only concerned with, the interlocutory writ issued for 
 the protection of the subject-matter until litigation is de- 
 cided. 
 
 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. g., 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 
 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) 1 
 
 (d) Supra, Injunction. 
 
 (e] Hilton v. Granville, 4 Beav. 130. 
 
 1 It is an almost universal practice to dissolve the injunction, where the 
 answer fully denies all the circumstances upon which the equity of the 
 bill is founded ; and likewise to refuse the writ, if application is made after 
 the coming in of such answer : Hoffman v. Livingston, 1 Johns. Ch. 211 ; 
 McFarland v. McDowell, 1 Car. L. R. 110 ; Cowles v. Carter, 4 Ired. Eq. 
 105 ; Livingston v. Livingston, 4 Paige Ch. Ill ; Gibson v. Tilton, 1 Bland 
 Ch. 355 ; Perkins v. Hallowell, 5 Ired. Eq. 24 ; Williams . Berry, 3 Stew. 
 & Port. 284 ; Green v. Phillips, 6 Ired. Eq. 223 ; Wakeman v. Gillespy, 5 
 Paige 112 ; Stoutenburgh v. Peck, 3 Green Ch. 446 ; Hollister v. Barkley, 
 9 N. H. 230 ; Eldred v. Camp, Harring. Ch. 163 ; Freeman v. Elmendorf, 
 3 Halst. Ch. 655 ; Adams v. Whiteford, 9 Gill 501 ; Furlong v. Edwards, 
 3 Md. 99; Dennis v. Green, 8 Ga. 197 ; Wood v. Patterson, 4 Md. Ch. 335 ; 
 Harris v. Sangston, Id. 394 ; Woodworth v. Rogers, 3 Wood. & M. 135 ; 
 Wright r. Grist, 1 Busb. Eq. 203; Mahon v. Central Bank, 17 Ga. Ill ; 
 Greenon v. Hoey, 1 Stockt. 137 ; Van Kuren v. Trenton Manufact. Co., 2
 
 OF INTERLOCUTORY ORDERS. 695 
 
 If the injunction be applied for before the answer, it 
 must necessarily be sustained on affidavit; and the de- 
 
 Beas. 302 ; Winslow v. Hudson, 21 N. J. Eq. 172 ; Yonge v. Sheppard, 44 
 Ala. 315. 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 Ga. 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 
 t>. Green, 8 Ga. 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 answer, 
 until the answers of all the 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' Ch. 342. Or parties who cannot be com- 
 pelled to answer, as a foreign corporation : Bait. & Ohio R. R. v. Wheel- 
 ing, 13 Gratt. 40. So it may be dissolved upon the answer of one or more 
 defendants within whose knowledge the facts charged especially or exclu- 
 sively lie, although other defendants have not answered : Dunlap v. Clem- 
 ents, 7 Ala 539 ; Coleman v. Gage, 1 Clarke 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. Ch. 148 ; 
 Noble 0. Wilson, 1 Paige 164 ; Stoutenburgh v. Peck, 3 Green Ch. 446 ; 
 Yliet v. Lowmason, 1 Id. 404 ; Price . Clevenger, 2 Id. 207. See also 
 Goodwyn p. State Bank, 4 Dessaus. 389. And this, too, where all the de- 
 fendants 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, ubi supra. 
 See also Bond v. Hendricks, 1 A. K. Marsh. 594. 
 
 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 sup- 
 ported by the oaths of several complainants : Manchester v. 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. Ch. 204 ; Poor v. Carleton, 3 Sumn. 70 ; Bank of Monroe v. Scher- 
 merhorn, 1 Clarke 303 ; Holt v. Bank of Augusta, 9 Ga. 552 ; Nelson v. 
 Robinson, 1 Heinpst. 474; Crutchfield . Donelly, 16 Ga. 432; Dent v. 
 Summerlin, 12 Id. 5; Hoagland . Titus, 1 McCart. 81 ; Morris Coal Co. v.
 
 696 ADAMS'S DOCTRINE OF EQUITY. 
 
 fendant may resist it on counter affidavits ; or if it has 
 been obtained ex parte, he may move to dissolve it on 
 
 Jersey City, 3 Stockt. 13 ; Conally v. Cruger, 40 Ga. 259 ; De Godey v. 
 Godey, 39 Cal. 157. Thus in some special cases, as \vhere fraud is 
 the gravamen of the bill", the injunction will be continued, though the de- 
 fendant has fully answered the equity charged : Dent v. Summerlin, ut 
 supr. ; Nelson v. Robinson, 1 Hempst. 464 ; Semmes v. Mayor of Colum- 
 bus, 19 Ga. 471. 
 
 Where the defendant in his answer admits, or does not deny the equity 
 of thd bill, but sets up new matter of defence, on which he relies, the in- 
 junction will be continued to the hearing : Minturn v. Seymour, 4 Johns. 
 Ch. 497 ; Lindsay v . Etheridge, 1 Dev. & Bat. 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 Ala. 667 ; 
 Deaver v. Irwin, 7 Ired. Eq. 250 ; Lewis v. Leak, 9 Ga. 95 ; Hutchins v. 
 Hope, 7 Gill 119; Wilson v. Mace, 2 Jones Eq. 5, 149. See Carson v. 
 Coleman, 3 Stockt. 109; Brewster v. The City of Newark, Id. 114; West 
 Jersey R. R. . Thomas, 21 N. J. Eq. 205. Thus, for example, where 
 the bill charges the receipt of money, and a general accountability, 
 and the answer admits the receipt, and seeks to account for the money 
 by alleging its application to some particular purpose, then the injunc- 
 tion will not be dissolved on the answer. But when the bill charges 
 payment on a particular account, and the answer denies that any payment 
 was made on that account, 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 matter, 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 in so 
 far as it speaks of responsive matters, within the personal knowledge 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 Md. Ch. 87 ; Doub v. Barnes, Id. 127 ; Cronise v. 
 Clark, 4 Id. 403 ; Rembert v. Brown, 17 Ala. 667; Horn v. Thomas, 19 
 Ga. 270 ; Wheat v. Moss, 16 Ark. 243. So where a supplemental bill has 
 been filed : Rogers v. Solomons, 17 Ga. 598. 
 
 So the injunction cannot be dissolved, if the answer be evasive and ap- 
 parently deficient in frankness, candor, or precision : Little v. Marsh, 2 
 Ired. Eq. 18; Williams v. Hall, 1 Bland Ch. 194; Swift v. Swift, 13 Ga." 
 140 ; Deaver . Eller, 7 Ired. Eq. 24. Nor if it be contradictory : Tong
 
 OF INTERLOCUTORY ORDERS. 697 
 
 counter affidavits, or may wait until he has filed his 
 answer, and then move to dissolve. 
 
 v. Oliver, 1 Bland Ch. 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 143 ; Poor v. Carleton, 3 Sumner 70 ; Doub v. Barnes, 
 1 Md. Ch. 127; Nelson v. Robinson, 1 Hempst. 464; Galloway v. Jones, 
 19 Ga. 277. See, however, Ashe v. Johnson, 2 Jones Eq. 49. And, more- 
 over, where the equity of an injunction is not charged to be in the know- 
 ledge 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 answer alone : Rodgers v. Rodgers, 1 Paige 426 ; Quackenbush 
 v. Van Riper, Saxton 476 ; Everly v. Rice, 3 Green Ch. 553 ; Coflee . 
 Newsom, 8 Ga. 444. 
 
 An injunction may be partially dissolved in accordance with the case 
 made out by the answer : Edwards v. Perryman, 18 Ga. 374 ; or it may be 
 revived after a dissolution on the merits, or awarded afresh on special mo- 
 tion, or new facts stated in an amended or supplemental bill, or on proof 
 taken : Tucker v. Carpenter, 1 Hemp. 440 ; Rogers v. Solomons, 17 Ga. 
 598 ; but see France v. France, 4 Halst. Ch. 619. 
 
 In general, no affidavits can be read in contradiction of the answer de- 
 nying the equity of the bill ; Brown v. Winans, 3 Stockt. 267 ; but in cer- 
 tain excepted cases> as nuisance, waste, and trespass, where irreparable 
 damage might ensue upon the refusal or dissolution of the injunction, such 
 affidavits will be allowed, and the continuance of the injunction will be 
 within the discretion of the Court, whether, upon the whole evidence, more 
 injury will be done to the complainant by withholding, or to the defendant 
 by granting the injunction : Waring v. Cram, 1 Pars. Eq. 523 ; Smith . 
 Cummings, 2 Id. 92 ; Poor v. Carleton, 3 Sumn. 70 ; Village of Sen. Falls 
 r. Matthews, 9 Paige 504 ; Lessig v. Langton, Bright. N. P. 191 ; see Shrews- 
 bury, &c., R. R. r. London, &c., R. R., 3 M. & G. 70. 
 
 In cases of imminent danger of injury to the complainant, a temporary 
 injunction will be granted on filing amendments to a bill after appearance, 
 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 con- 
 tinued : Hayes v. Heyer, 4 Sandf. Ch. 485. So a preliminary injunction 
 will not be refused, for error in a bill which is amendable, 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., 
 R. R., 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 appear-
 
 698 ADAMS'S DOCTRINE OF EQUITY. 
 
 If the motion, either to grant or dissolve the injunction, 
 is heard after answer, the adinissibility of affidavits is a 
 questionable point. 
 
 If the answer denies the plaintiff's title, affidavits are 
 not admissible to support such title ; or in other words, 
 the title will not be tried before the 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 
 
 (f ) Mauser v. Jenner, 2 H. 603 ; Clapham v. White, 8 Ves. 36. 
 
 ance: Zuleuta v. Vinent, 14 Beav. 209 ; contra, Eyton v. Mostyn, 3 De G. 
 & Sm. 518. 
 
 In general, in this country, no injunction can be obtained without no- 
 tice. The Rule in U. S. Courts, in Equity, No. lv., 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 in- 
 junction. 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 may be ex parte, if the adverse party does not appear 
 at the time and place ordered. 
 
 But in Pennsylvania, see Rule Ixxv. 
 
 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 Canal Co., 21 Penn. St. 117. But an omission to give 
 bond is not a ground for dismissing an injunction bill : Gueray v. Durham) 
 11 Ga. 9. An injunction directed to a corporate body, is binding not only 
 on the corporation, but every individual member : 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 
 cooperation 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, there- 
 fore, who votes for the adoption of such an ordinance, commits a breach 
 of the injunction, and is guilty of a contempt : Id. See too, Rorke v. Russell, 
 2 Lans. (N. Y.) 242.
 
 OF INTERLOCUTORY ORDERS. 699 
 
 extend to matters of fact.(^) 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 answer, the Court will read them, and also read any 
 further affidavits filed after the answer, whether the 
 injunction was obtained or not; that is, it will try the 
 question of waste, though not that of title, on affidavit 
 against the answer. But if no affidavit has been filed 
 before the answer so as to give a locus standi for a hear- 
 ing on affidavit, affidavits filed after the answer cannot 
 be read. (A) 1 
 
 *The grant of the interlocutory injunction is 
 discretionary with the Court; and depends on 
 the circumstances of each case, and on the degree in 
 which the defendant or the plaintiff would 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, primd facie a fair reason to interfere, yet the Court 
 will not act as a mere matter of course, but will consider 
 
 (g) Barrett v. Tickell, Jac. 156 ; Morgan v. Goode, 3 Meriv. 10.; Ord v. 
 White, 3 Beav. 357; Castellain . Blumenthal, 12 Sim. 47; Edwards . 
 Jones, 1 Ph. 501. 
 
 (h) Jefferys v. Smith, 1 J. & W. 300 ; Smythe v. Smythe, 1 Sw. 2.V_> ; 
 Lloyd v . Jenkins, 4 Beav. 230 ; Gardner v. McCutcheon, Id. 534 ; Manser 
 v. Jenner, 2 Hare 600. 
 
 1 See Kinsler v. Clarke, 2 Hill Ch. 620.
 
 700 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 compen- 
 sation due for its infringement, (k) 
 
 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. (/) 
 
 In the case of stock which may be transferred with 
 great facility, a more speedy protection existed under the 
 old practice, by writ of distrinyas out of the Exchequer, 
 PJ.OC-O-I and ^service of it on the bank. The distrinc/as 
 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 similar remedy 
 was given by distringas issuable out of that Court. And 
 a further remedy was also given by a restraining order of 
 thye Court, to be summarily made on petition or motion 
 without bill filed, and to continue in force until dis- 
 
 (i) Hilton 0. Granville, 1 Cr. & P. 283. 
 (k) Bacon . Jones, 4 M. & C. 436. 
 
 (I) Harman v. Jones, 1 Cr. & P. 299 ; Ansdell v. Ansdell, 4 M. & C. 
 449 ; Bacon v. Jones, Id. 436 ; Few v. Guppy, 1 Id. 507.
 
 OF INTERLOCUTORY ORDERS. 701 
 
 charged, imperatively restraining the bank, or any pub- 
 lic company, from permitting a transfer or paying a divi- 
 dend, (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 declara- 
 tion is delivered, it stays all the proceedings at law. If 
 afterwards, it only restrains execution, and the plaintiff 
 at law is at liberty to proceed to judgment. But the 
 plaintiff in equity, on a second motion supported by an 
 affidavit, that he believes the answer will afford discovery 
 material to his defence, may obtain a further order ex- 
 tending it to stay trial. And it would seem, though not 
 free from doubt, that, on the answer coming in, this fur- 
 ther order may be discharged independently of the origi- 
 nal injunction, (n) 
 
 If the defendant is diligent enough to prevent the com- 
 mon injunction from issuing by filing a sufficient answer 
 within the time allowed, the plaintiff must move specially 
 on the merits confessed in the answer. If, on the other 
 hand, the proceedings at law are such as to afford no op- 
 portunity of ^obtaining the common injunction, a r#oKn-i 
 special injunction may be obtained on affidavit 
 before answer; but, except under very special circum- 
 stances, the Court is unwilling to grant it. (0) 
 
 (w) 5 Viet. c. 5, s. 4 & 5 ; Orders of November, 1841 5 Re Hertford, 1 
 Hare 584; 1 Ph. 129; Id. 203 ; 2 Dan. Ch. P., c. 33. 
 
 (n) Earnshaw v. Thornhill, 18 Ves. 485 ; Rawson v. Samuel, 1 Cr. & P. 
 167. 
 
 (o) Drummond . Pigou, 2 M. & K. 168 ; Bailey v. Weston, 7 Sim. 666.
 
 702 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 desires to 
 try his liability at law, the injunction will be dissolved 
 with liberty to apply again after verdict. But, unless the 
 defendant's right at law be admitted, he will not be re- 
 strained from trying it, except where it is obvious on his 
 own answer that the relief sought will be decreed at the 
 hearing. If he has already tried his right at law, and 
 obtained judgment, he will be restrained from issuing exe- 
 cution, if it appear that there is an equitable question to 
 be decided, before the Court can safely allow the matter 
 to be disposed of elsewhere, (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.^) 
 
 (p) Playfair v. Thames Junction Railway Company, 1 R. C. 640 ; Bar- 
 nard v. Wallis, Or. & P. 85 ; Bentinck v. Willink, 2 Hare 11. 
 
 (q) Anon., 1 P. Wms. 301 ; Macnamara v. Macquire, 1 Dick. 223.
 
 OF INTERLOCUTORY ORDERS. 703 
 
 :; 'V. The writ ofne exeat (r) is a writ to restrain 
 a person from quitting the kingdom without the " 
 King's license, or the leave of the Court. It is a high pre- 
 rogative writ, and was originally applicable to purposes of 
 state only, hut is now extended to private transactions, 
 and operates in the nature of equitable bail. 1 It is grant- 
 able wherever a present equitable debt is owing, which if 
 due at law w r ould warrant an arrest, and also to enforce 
 arrears of alimony in aid of the Spiritual Court, in respect 
 of the inability of that Court to require bail, (s) 2 It may 
 
 (r) 2 Dan. Ch. P., c. 34. 
 
 (s) Jackson v. Petrie, 10 Ves. 164 ; Gardner r. , 15 Ves. 444 ; Blaydes 
 
 r. Calvert, 2 Jac. & W. 211 ; Whitehouse v. Patridge, 3 Sw. 365; Sealy v. 
 Laird, Id. 368 ; Pearne v. Lisle, Amb. 75. 
 
 1 See, in accordance, Dunham v. Jackson, 1 Paige 629 ; Mitchell v. 
 Bunch, 2 Id. 606 ; Johnson v. Clendenin, 5 Gill & J. 463. 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. 130. 
 
 2 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 plain- 
 tiff cannot sue at law, except in cases of account, and a few others of con- 
 current 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 : 
 Khodes r. Cousins, 6 Randolph 188; Wallace v. Duncan, 13 Ga. 41. In 
 Alabama and New York, a certain sum need not be sworn to : Lucas t?. 
 Hickman, 2 Stewart 111 ; Thorn . Halsey, 7 Johns. Ch. 189. 
 
 If the party against whom a final decree is made, intends to remove be- 
 yond the jurisdiction of the court, before the decree can be enforced by 
 execution, a ne exeat will be granted : Dunham v. Jackson, 1 Paige 629. 
 
 Where a wife had filed a bill for alimony against her husband, and it 
 appeared that he had abandoned her, without any support, and threatened 
 to leave the state, the court, on the petition of the wife, granted a writ of 
 ne exeat republica against the husband : Denton v. Denton, 1 Johns. Ch. 
 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 ne exeat therein : 
 Ellingwood v. Stevenson, 4 Sandf. Ch. 366 ; see also Buford r. Francisco, 3 
 Dana 68.' 
 
 But the demand must be an equitable one, or within one of the excep-
 
 704 ADAMS'S DOCTRINE OF EQUITY. 
 
 be granted where there is a concurrent jurisdiction at law, 
 e. g., on bills for an account, or for specific performance j 1 
 but not where the claim is of legal cognisance alone, (t) 
 
 The writ is issuable if the defendant is within the 
 jurisdiction, although his domicile may be abroad, (w) but 
 not if the plaintiff be himself resident abroad. (#) 2 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, (w) 
 It is applied for ex parte by petition or motion ; 3 and the 
 application must be supported by affidavit, stating the 
 amount of the debt, and stating that the defendant intends 
 to go abroad, or his threats or declarations to that effect, 
 or facts evincing his intention, and stating also that the 
 debt will be endangered by his so doing, (a?) 
 
 (t) Boehm v. Wood, T. & R. 332 ; Raynes v. Wyse, 2 Meriv. 472 ; Morris 
 v. McNeil, 2 Russ. 604 ; Jenkins v. Parkinson, 2 M. & K. 5. 
 
 (u) Howden v. Rogers, 1 Ves. & B. 129 ; Flack v. Holm, 1 J. & 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; Col- 
 
 tional cases of concurrent jurisdiction. The writ cannot be granted for a 
 debt founded on a promissory note not due : Cox v. Scott, 5 liar. & 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. 
 Ch. 138; see also, Seymour v. Hazard, 1 Id. 1 ; Brown v. Haff, 5 Paige 
 235 ; Williams v. Williams, 2 Green's Ch. 130; Hannahan v. Nichols, 17 
 Ga. 77. 
 
 1 See Mitchell v. Bunch, 2 Paige 605 ; Porter v. Spencer, 2 Johns. Ch. 
 169 ; Brown v. Haff, 5 Paige 235. 
 
 2 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 : Wood- 
 ward v. Schatzell, 3 Johns. Ch. 412 ; Mitchell v. Bunch, 2 Paige 606. 
 
 3 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. 
 Ch. 75.
 
 OF INTERLOCUTORY ORDERS. 705 
 
 The writ is directed to the sheriff, and requires him to 
 take security from the defendant in a specified amount 
 that he will not go beyond seas, or into Scotland, without 
 leave *of the Court, and in case he refuse to give r*o>-i-i 
 such security, to commit him to safe custody, (y) 1 
 If a capture be made under the writ s the defendant can- 
 not obtain his discharge without giving such security, 
 either by bond with sureties, or by deposit or otherwise, 
 as shall satisfy the sheriff, (z) 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., because the defendant is not going out of 
 the jurisdiction, or because the plaintiff has no case, the 
 answer must be first put in.(^) 1 
 
 linson r. , 18 Id. 353 ; Tornlinson v. Harrison, 8 Id. 33 ; Stewart v. 
 
 Graham, 19 Id. 313. 
 
 (y) Bernal v. Donegal, 11 Ves. 43. 
 
 (z) Boehm v. Wood, T. & R. 340. 
 
 (a) Grant v. Grant, 3 Russ. 598. 
 
 (6) Russell t. Ashby, 5 Ves. 98 ; Jones v. Alephsin, 16 Id. 470 ; Leo v. 
 Lambert. 3 Russ. 417. 
 
 1 See, on the nature of the security and the conditions of the defendant's 
 discharge, McNamara . Dwyer, 7 Paige 239 ; Mitchell v. Bunch, 2 Id. 
 606 ; Ancrum v. Dawson, McMullan's Eq. 405 ; O'Connor v. Debraine, 3 
 Edw. Oh. 230 ; Cowdin v. Cram, 3 Edw. Ch. 231 ; and, as to the damages 
 recoverable, see Burnap v. Wight, 14 111. 301. 
 
 2 See Nixon v. Richardson, 4 Dessaus. 108. 
 
 45
 
 706 ADAMS'S DOCTRINE OF EQUITY. 
 
 [*362] *CH AFTER VI. 
 
 OF EVIDENCE. 1 
 
 THE next regular step after replication is, that th^ 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 pleadings as are material to the 
 decree asked or resisted, and are not admitted in his suit 
 by his opponent. 
 
 I. They must be facts material to the decree. 
 
 In reference to this doctrine, it is important to observe 
 that the decree asked or resisted, in the sense in which 
 the expression is here used, is not necessarily one for the 
 whole relief sought, but is merely that decree which, ac- 
 cording 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 performance 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 second case, 
 
 (a) Infra, Decree. 
 
 1 See upon this subject, generally, Greenleaf's Evidence, vol. iii., part 
 vi., " Of Evidence in Proceedings in Equity ;" Daniel's Chan. Prac., c. 
 xxi. And also a valuable collection of American cases on the law of Equity 
 Evidence, in the Appendix to the 13th vol. of McKinley and Lescure's Law 
 Library.
 
 OF EVIDENCE. 707 
 
 for an inquiry as to the validity of the vendor's title. 
 The plaintiff is not bound, therefore, before the hearing, 
 to prove every allegation in such bills, but should confine 
 himself in the one case to establish his primd facie right 
 by proof of his debtor relationship, and in the other by 
 proof of the agreement, or of such other facts as will lay 
 a foundation *for the inquiry, (b) And in like 
 manner, the defendant's evidence should be con- 
 fined 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 jthem 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. 1 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, 2 
 
 (6) Law v. Hunter, 1 Russ. 100 ; Tomlin v. Tomlin, 1 Hare 240. 
 (c) Evans v. Cogan, 2 P. Wms. 449. 
 
 1 See 3 GreenleaPs Evidence, s. 278. An infant, however, on coming of 
 a^f, may be permitted to file another answer ; and if he unreasonably de- 
 lay- \o apply for leave to do this, he will be taken to have confirmed his 
 former answer, and it may be read against him : Id. s. 279 ; see Watson 
 r. Godwin. 4 Md. Ch. 25, 
 
 2 A direct admission contained in the answer of a defendant, is, of 
 course, always evidence against him : 3 Greenl. Ev., s. 277 ; even in a sub- 
 sequent suit : Royal . McKenzie, 25 Ala. 363. Though it is otherwise 
 where it is made upon information merely, and not upon information and 
 belief : Id. s. 282. Where an answer admits a fact charged, but sets up
 
 708 ADAMS'S DOCTRINE OF EQUITY. 
 
 viz., that the answer of the defendant is evidence against 
 himself but not against a co-defendant ; that the answer, 
 
 another fact in avoidance, the fact admitted is established ; but the fact in 
 avoidance must be proved : Clements v. Moore, 6 Wallace (U. S.) 299. 
 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 Ala. 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 Md. Ch. 
 363. 
 
 The admissions in the answer of one defendant cannot usually be made 
 evidence to affect his co-defendants : 3 Greenl. Ev., \ 283 ; ante 20, note ; 
 Briesch v. McCauley, 7 Gill 189 ; Hitt v. Ormsbee, 12 111. 166 ; Whiting v. 
 Beebe, 7 Eng. (Ark.) 421 ; Glenn v. Grover, 3 Md. 212; Farley v. Bryant, 
 1^2 Maine 474 ; Gilmore v. Patterson, 36 Id. 544 ; Blakeney . Ferguson, 
 14 Ark. 641 ; Lenox v. Notrebe, 1 Hempst. 251 ; but see Miles v. Miles, 32 
 N. H. 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. Ev., ut supr. ; Clayton v. Thomp- 
 son, 13 Ga. 206 ; Van Reimsdyk 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 Md. 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 defendant and 
 the former, he may read the answer of the second defendant for that pur- 
 pose: Whiting v. Beebe, 7 Eng. (Ark.) 421. The joint answer of a hus- 
 band and wife may be read against the wife as to her separate estate : 
 Clive v. Carew, 1 John. & H. 207. 
 
 On the other hand, the answer of a defendant, so far as it is responsive 
 to the bill, is evidence for him, and is conclusive in general, unless contra- 
 dicted 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 Md. 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 Md. 36 ; Brooks v. Thomas, 8 Id. 367 ; Miles 
 v. Miles, 32 N. H. 147 ; Busbee v. Littlefield, 33 Id. 76 ; Williams v. Philpot, 
 19 Ga. 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 ; Turner v. 
 Knell, 24 Md: 55 ; Clark v. Hackett, 1 Cliff. C. C. 269 ; Delano v. Winsor, 
 Id. 501 ; Bird v. Styles, 3 Green (N. J.) 297 ; Willdey v. Webster, 42 111.
 
 OF EVIDENCE. 709 
 
 if replied to, cannot be evidence in favor of the defend- 
 ant, unless where a positive denial is opposed to the 
 
 106; Blow v. Gage, 44 Id. 208 ; De Hart v. Baird, 4 Green (N. J.) 423 ; 
 Bent r. Smith, 20 N. J. Eq. 199. 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 
 v. Crew, 16 Ga. 416. It is not material in respect to the conclusiveness of 
 the answer, that the equity of the complainant's bill is grounded on allega- 
 tions of fraud : McDonald v. McLeod, 1 Ired. 226 ; Murray v. Blatchford, 
 1 Wend. 583 ; Dilly v. Bernard, 8 Gill & John. 171 ; Eberly v. Groff, 21 
 Penn. St. 251 ; Morris & Essex R. R. 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: Thompson v. Diffen- 
 derfer, 1 Md. 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 r. Clark, 4 Paige 368 ; Glenn v. Grover, 3 Md. 212 ; but see 
 Lea's Ex'rs. r. Eidson, 9 Gratt. 277. If the bill is supported by the testi- 
 mony of a single witness only, and the defendant by his answer positively, 
 clearly and precisely denies the allegations it contains, the Court will not 
 make a decree, but will dismiss the bill. But if there is anything to cor- 
 roborate the testimony of the witness, as, for example, letters of the de- 
 fendant, it will be sufficient to turn the scale. See Jordan v. Money, 5 
 H. L. Cas. 185, 217-218; Smith v. Kay, 7 Id. 760; Brittin v. Crabtree, 20 
 Ark. 309 ; Pusey v. Wright, 31 Penn. St. 287. 
 
 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 un- 
 sworn answer, though an answer under oath is not required by bill, the 
 rule being otherwise in England. See 3 Greenl. 286, note ; Union Bank 
 r. Geary, 5 Peters 99 ; Patterson v. Gaines, 6 How. (U. S.)"586 ; Bartlett 
 v. Gale, 4 Paige 503 ; Willis v. Henderson, 4 Scamm. 13 ; Tomlinson r. 
 Lindley, 2 Carter (Ind.) 569 ; McLard v. Linnville, 10 Humph. 163 ; Tag- 
 gert v. Bolden, 10 Md. 104; Wilson v. Towle, 36 N. H. 129; Wallwork v 
 Derby. 40 111. 027 : Hyer . Little, 20 N. J. Eq. 443 ; Willenborg v. Murphy, 
 36 111. 344 ; but see'Clements . Moore, 6 Wall. (U. S.) 299 ; Story Eq. PI., 
 $875, &c. ; and it is so expressly provided by statutory and judicial regu- 
 lation in som'e states : Greenleaf, ut sup. See Bingham v. Yeomans, 10 
 Cush. 58. By statute, in Iowa, a sworn answer does not make other or 
 greater proof necessary than if the answer was not verified by oath : 
 Mitt-hell r. Moore, 24 Iowa 394. 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
 
 710 ADAMS'S DOCTRINE OF EQUITY. 
 
 testimony of a single witness, or where the question is as 
 to costs alone ; and that the plaintiff does not, by reading 
 
 54; McLard v. Linnville, 10 Humph. 163 ; Maryl., &c., Co. . Wingert, 8 
 Gill 170 ; State Bank . Edwards, 20 Ala. 512 ; contra, Bayard v. Ches. & 
 Del. Co., cited 3 Bland "165. In Haight v. Morris Aqueduct, 4 Wash. C. C. 
 601, however, such an answer was held sufficient to prevent the granting 
 of an injunction ; and see Carpenter v. Prov., &c., Insurance 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. & Ohio R. R. Co. v. Wheeling, 13 Gratt. 40 ; Taggert v. Bolden, 10 
 Md. 104. The effect of an answer under oath to an original bill calling 
 for an answer under oath, cannot be avoided by the filing of an amended bill 
 waiving the oath : Wylder v. Crane, 53 111. 490. 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 interrogatories 
 of the bill, and the denial made must be positive and distinct, not evasive or 
 illusory : Wakeman v. Grover, 4 Paige 23 ; Lucas v. Bank of Darien, 2 
 Stew. (Ala.) 280; N. E. Bank v. Lewis, 8 Pick. 113; Philips v. Richard- 
 on, 4 J. J. Marsh. 213 ; Cocke v. Trotter, 10 Yerg. 213 ; O'Brien v. Elliott, 
 15 Maine 125 ; Buck v. Swazey, 35 Id. 42 ; Smith v. Kincaid, 10 Humph. 
 73; Jacks v. Nichols, 1 Seld. (N. Y.) 178 ; Stevens v. Post, 1 Beas. 408; 
 Coleman v. Rose, 46 Penn. St. 184 ; Wells v. Houston. 37 Verm. 247; 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; Gilbert v. 
 Mosier, 11 Iowa 326. A further qualification is, that where the facts 
 stated or denied in the answer could not be by possibility within the per- 
 sonal 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 in- 
 ference from facts not particularly stated, the same amount of countervail- 
 ing 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. Gas. 492 ; Knickerbacker v. Harris, 1 
 Paige 209 ; Drury v, Conner, 6 Har. & Johns. 288 ; Pennington v. Git- 
 tings, 2 Gill & John. 208 ; Clark's Adm. v. Van Reimsdyk, 9 Cranch 153 ; 
 Paulding v. Watson, 21 Ala. 279 ; Copeland v. Crane, 9 Pick. 73. And, 
 on the other hand, where a bill was filed to set aside a deed as fraudulent 
 against creditors, and it was charged in the bill that the consideration was 
 not paid, it is not satisfactory that the defendant relies upon his answer, if 
 there are suspicious circumstances attending the transaction. The evidence 
 of the payment must have been in the defendant's possession, and it should 
 have been produced : Callan v. Statham, 23 How. 477. So upon the prin-
 
 OF EVIDENCE. 711 
 
 extracted passages, make other passages evidence, except 
 BO far as they are explanatory of the passages read. 
 
 ciple that the answer of an infant by his guardian is not binding on him, e 
 converso, it cannot be used as evidence in his favor : Bulkley r. 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 provi- 
 sions. See 3 Greenl. Ev. \ 289, note. 
 
 Most of these exceptions, it is to be remembered, are only applicable 
 whore 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 ; Pierce 
 r. West's Ex'rs., 1 Peters C. C. 351 ; Dale v. McEvers, 2 Cow. 118 ; Jones v. 
 Ma-on. .") Rand. 577 ; Scott v. Clarkson, 1 Bibb 277 ; Moore c. Hylton, 1 Dev. 
 Eq. 42'.' : Carman v. Watson, 1 How, (Miss.) 333 ; 3 Greenl. 288; Lanu- 
 ing >:. Smith, 1 Pars. Eq. 17 : Warer. Richardson, 3 Md. -A 1 ") : Mason r. Mar- 
 tin, 4 Id. 124 : Perkins v. Nichols, 11 Allen 542 ; Farrell r. McKee, 36 111. 225. 
 The answer of one defendant, on the other hand, is not, in general, evi- 
 dence in behalf of another defendant : Morris v. Nixon, 1 How. U. S. 119 ; 
 Larkin's Appeal, 38 Penn. St. 457 ; 3 Greenl. \ 283 ; see Farley v. Bryant, 
 32 Maine 474 : Gilmore r. Patterson, 36 Id. 544. Though where it is 
 directly responsive and furnishes a disclosure of the facts required unfavor- 
 able to the complainant, and especially where the title of such other de- 
 fendant is merely derivative, it has been held otherwise : Greenl. ut sup. ; 
 Mills r. Gore. 2n Pick. 28. The answer of one defendant cannot be read 
 in evidence against a co-defendant when there is no privity between the 
 two : Adkins v. Paul, 32 Ga. 219 ; Alden v. Holden, Id. 418 : see also, Hoff 
 '-. Burd, 2 Green (X. J.) 2Ul ; Eckuian v. Eckman, 55 Penn. St. 269. 
 
 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 explanations 
 and qualifications, by which the admissions may be accompanied, though 
 contained in a distinct part of the answer, but incorporated by reference in 
 the admissions: Parrish r. Koons, 1 Pars Eq. 97 ; Gleen . Randall, 2 Md. 
 Ch. 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 
 ha- Ijc-t.-n 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 enti-
 
 712 ADAMS'S DOCTRINE OF EQUITY. 
 
 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.(W) By the 
 ordinary rules of evidence, until altered by a late statute, (e) 
 a person interested in the result of the suit was inadmis- 
 sible as a witness, and it is obvious that this ground of 
 objection applied more forcibly to the immediate parties 
 on the record than to any other person. The general 
 incapacity in respect of interest has been abrogated by 
 that statute, but the case *of the immediate par- 
 ties to the record is expressly excepted from its 
 effect. 
 
 If, however, the person tendered for examination., 
 though nominally a party on the record, had in truth no 
 interest in the event, he was even at law a competent 
 
 (d) I Dan. Ch. P. 845. (e) 6 & 7 Viet. c. 85. 
 
 tied to have the matter of avoidance considered as struck out: 3 Greenl., 
 281 ; McCoy v. Rhodes, 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 answer 
 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 ju- 
 risdiction of discovery, goes on to give the necessary relief, to avoid a mul- 
 tiplicity of suits, though there be a full and adequate remedy at law, which 
 is generally done in the United States : Lyons v. Miller, 6 Gratt. 439. The 
 answer cannot be attacked by evidence tending to impeach the defendant's 
 credibility; and such evidence is inadmissible: Brown v. Bulkley, 1 
 McCart. 294. In this case, Butler v. Catlin, 1 Root 310, and Salmon v. 
 Clagett, 3 Bland 165, were followed ; and Miller v. Tolleson, 1 Harp. Ch. 
 145, where a contrary doctrine had been held, was disapproved.
 
 OF EVIDENCE. 713 
 
 witness. (/) But it rarely happens that at law any per- 
 son 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, 1 or otherwise, without possessing or 
 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 bene- 
 ficial interest in resisting, 2 or where he had by his answer 
 
 (f) Phillips on Evidence, 51 ; Worrall . Jones, 7 Bing. 398. 
 
 1 A trustee defendant, having a legal interest altogether nominal, is a 
 competent witness as to the merits or design of the trust deed : Hawkins 
 r. Hawkins, 2 Car. Law Rep. 027. 
 
 In equity, a mere trustee may in generaT be a witness : Neville . De- 
 meritt, 1 Green Ch. 321 ; Harvey v. Alexander, 1 Rand. 219 ; Taylor v. 
 Moore, 2 Id. 563 ; Trustees of Watertown v. Cowen, 4 Paige 510 ; Hodges 
 r. Mullikin, 1 Bland 503 ; Hardwiek r. Hook, 8 Ga. 354. See Southard v. 
 Cushing, 11 B. Monr. 344. This rule has been adopted at law in Penn- 
 sylvania : Drum v. Simpson, 6 Binn. 481 ; King t>. Cloud, 7 Penn. St. 467 ; 
 Keim r. Taylor, 11 Id. 163; Sorg . First German, &c., 63 Id. 156. 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 interested in the trust 
 estate : and must release that interest, before he can be permitted to testify 
 in a c"iu?e in which it may be in any way affected. See Anderson v. Neff, 
 11 S. & R. 208 : Patton v. Ash, 7 Id. 116 ; King c. Cloud, 7 Penn. St. 467. 
 
 2 A defendant made a party pro forma only, or where, in general, no 
 decree could properly be passed against him, may be made a witness for 
 his co-defendant : Kirk v. Hodgson, 2 Johns. Ch. 550 ; llagan v. Echols, 5 
 Ga. 71 : Sharp B. Morrow, 6 Monr. 305 ; Warren v. Sproule, 2 A. K. Marsh. 
 539; Wright c. Wright, 2 McCord Ch. 185; Butler r. Elliott, 15 Conn. 
 187 ; see also, Caphart . Huey, 1 Hill Ch. 405 ; Jones v. Bullock, 2 Dev. 
 Ch. 368; Bell r. Jasper, 2 Ired. Eq. 597 ; Wilson v. Allen, 1 Jones Eq. 24. 
 And he may be a witness against a cc-defendant, where he is necessarily
 
 714 ADAMS'S DOCTRINE OF EQUITY. 
 
 submitted to a decree, and had therefore ceased to hare 
 such interest, 1 or where, though having an interest, he 
 had it in respect of a part only of the matters in issue, 
 he might be examined as a witness either generally, or in 
 respect to those matters in which he had -no interest. 2 
 
 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 de- 
 fendant, no particular relief being prayed against him, may be a witness 
 for his co-defendant, though liable for costs : Neilson v. McDonald, 6 
 Johns. Ch. 201 ; 2 Cowen 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 ._Yan 
 Rensselaer, 3 Johns. Ch. 612 ; Farley v. Bryant, 32 Maine 474. 
 
 1 A defendant who suffers the bill to be taken as confessed, and thereby 
 enables the complainant to obtain a decree against him individually, is a 
 competent witness for his co-defendant : Holgate v. Palmer, 8 Paige 461 ; 
 Post v. Dart, Id. 639 ; Lupton v. Lupton, 2 Johns. Ch. 625. 
 
 2 Lingen 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 incompe- 
 tent 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 exception that he has an 
 interest in any other matters embraced in the cause, unless these matters 
 will be affected by his examination : Williams v. Maitland, 1 Ired. Eq. 92 ; 
 Sproule v. Samuel, 4 Scammon 135 ; Dyer v. Martin. Id. 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 Md. Ch. 119. 
 But an order must be first obtained : Hewett v. Crane, 2 Halst. Ch. 159 ; 
 Second Cong. Soc. v. First Cong. Soc., ut supr. ; Hoyt v. Hamuiekin, 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 irreg- 
 ularity, and when it is apparent that no substantial injustice has been in- 
 flicted upon the opposite party by denying him the benefit of a cross-exuin- 
 ination, 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 Md. Ch. 119. See, on this subject, 8 Greenl. Ev., 
 314, &c.
 
 OF EVIDENCE. 715 
 
 And liberty so to examine him might be obtained as of 
 course by either the plaintiff or a co-defendant, saving 
 just exceptions. The application to examine him was ac- 
 companied by a suggestion that he had no interest, (g] If 
 that suggestion were untrue, the deposition was disallowed 
 at the hearing; and if the examination had been by the 
 plaintiff, he could not pray an adverse decree against the 
 defendant examined, nor against others who might be 
 secondarily liable, (h) l The act above referred to abolished 
 the suggestion of "no interest," and provides that in 
 Courts of equity any defendant may be *ex- 
 aniined 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 con- 
 sidered as affecting or tending to affect his credit, (i) 
 
 The plaintiff is in all cases incompetent as a witness. 
 If a co-pkiintiff be desirous of his evidence, and the defend- 
 ant 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 
 
 (ff) Murray r. Shadwell, 2 Ves. & B. 401. 
 
 (h) Massy v. Massy, 1 Beatty 353; Champion v. Champion, 15 Sim. 101. 
 
 (t) 6 & 7 Viet. c. 85, s. 1. 
 
 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 ex- 
 iiminud ; and if he has been examined upon the whole case made by the 
 bill, it must be dismissed as to him and them : Lingan . Henderson, 1 
 Bland 268 ; Bradley . Root, 5 Paige 633 ; Palmer . Van Doren, 2 Edw. 
 Ch. 192. But this rule does not apply to the case of a mere formal de- 
 fendant, 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 de- 
 fendant who, by his answer, admits his own liability, or who suffers the 
 bill to be taken as confessed against him : Bradley r. Root, 5 Paige 633.
 
 716 ADAMS'S DOCTRINE OF EQUITY. 
 
 by amendment. 1 If the examination is required on be- 
 half of a defendant, it can only be had by the plaintiff's 
 consent, (k ) 
 
 The manner of taking evidence is different in equity 
 and at law. It is taken at law viva voca, and publicly; in 
 equity it is written and secret. The origin of this dis- 
 tinction is the difference of the objects which the two 
 tribunals have in view. 2 
 
 The object at law is to enable the jury to give their 
 verdict on the issue joined between the parties. They 
 
 (k) Fisher v. Fisher, 2 Ph. 236. 
 
 1 Leavitt v. Steenbergen, 3 Barb. S. C. 155; Helms v. Franeiscus, 2 
 Bland 544 ; Eckford v. De Kay, 6 Paige 565 ; 3 Greenl. Ev., \ 314. See 
 Pusey v. Wright, 31 Perm. St. 287. 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 : Eckford v. De Kay. 6 Paige 565 ; see, also, Ross v. Carter, 
 4 Hen. & Munf. 488. 
 
 2 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 Evi- 
 dence, s. 267) thus sums up the diversities existing 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 depo- 
 sitions, 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 tenus, before the magistrate or commis- 
 sioner ; in others, they may only propound questions in writing, through 
 the commissioner ; and in others, they may only be present during the ex- 
 amination 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 distinctions are more elaborately dwelt upon.
 
 OF EVIDENCE. 717 
 
 are not required to decide on the meritvS of the case gene- 
 rally, or to elicit a legal conclusion from a series of facts, 
 luit are to give their verdict on the balance of testimony, 
 affirmative and negative, direct and indirect, submitted to 
 them on the issues joined. In order, therefore, that this 
 object may be best 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 compared and 
 sifted; and this is done by an examination viva voce and 
 in public. The jury are thus aided by the tone and man- 
 ner of the witnesses^ 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 counsel, and summed up by 
 the judge, and the danger of mistake or misapprehension 
 in the witnesses, as well as that of a deliberate perjury, 
 is partly remedied by the solemnity *of a public 
 trial, and in a still greater degree by the search- 
 ing ordeal of cross-examination. The verdict, when given, 
 is added to the record, but there is no judicial record of 
 the evidence. If the verdict is complained of as being 
 ;ii:,iiiist the evidence, the private notes of the judge, or 
 the admissions of counsel, are the only materials furnished 
 to the Court ; and if the Court in its discretion grants a 
 new trial, such new trial must take place as on a new 
 i--ue, before a new and independent jury, who will decide 
 according to the evidence laid before themselves. If the 
 verdict is undisturbed, but its legal effect on the question 
 in dispute is doubted, that, as a question of law, must 
 be decided by the Court ; but for the purpose of such de- 
 cision, as well as of any subsequent appeal, the verdict 
 only, and not the evidence, appears upon the record.
 
 718 ADAMS'S DOCTRINE OF EQUITY. 
 
 In a Court of law, therefore, a viva 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. 
 
 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. (7) 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 preserve it in 
 an accurate record, for the use, if needed, of the Appellate 
 Court. 
 
 For this reason it is required in equity that all 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 
 ^7 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 neces- 
 sarily involves the risk that defects of evidence might be 
 discovered in the course of taking it, and false testimony 
 procured to remedy them. In order to avoid this risk, 
 
 (I) Infra, Issue.
 
 OF EVIDENCE. 719 
 
 the witnesses are examined privately by an officer of the 
 Court ; and it is an imperative rule, that until the exam- 
 inatioii has been completed and the entire depositions given 
 out, which is technically termed passing publication, 
 neither party shall be made acquainted with his adver- 
 sary's interrogatories, nor with any part of the answers on 
 either side ; and that after publication, no further wit- 
 iif.-ses can be examined without special leave. (m) 
 
 The secrecy thus observed must to some extent involve 
 the possibility, not only of false evidence being given, but 
 of true evidence being given in an imperfect form, where 
 a party, in the absence of his opponent, so frames his 
 interrogatories as to elicit testimony respecting part only 
 of a transaction. This is an evil which cannot altogether 
 be avoided ; but it is in a great degree remedied by the 
 rule, that in order to give weight to evidence, the facts 
 which it is intended to support must have been previously 
 detailed in the pleadings. Should this security prove 
 insufficient, so that a doubt exists at the hearing whether 
 all material facts are before the Court, further inquiries 
 may In- directed, and the decision in the meantime delayed. 
 
 The mode of examination is by written interrogatories, 
 which, in the cases of witnesses resident within twenty 
 :;: miles of London, are administered by an officer p 
 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 commissioners 
 specially appointed for the purpose, (w) 1 
 
 The interrogatories, as well as the bill and answer, 
 
 (m) 1 Dan. Ch. P. 948. 
 
 (n) Mostyn v. Spencer, 6 Beav. 135 ; Orders of 1845, xciv.-cx. ; 1 Dan. 
 Ch. P. 860. 
 
 1 See, on this subject, 3 Green. Evid., s. 319, et seq.
 
 720 ADAMS'S DOCTRINE OF EQUITY. 
 
 must be signed by counsel, as a security to the Court that 
 no irrelevant or improper matter is inserted. 
 
 They are framed as a series of questions, directed suc- 
 cessively to the several facts in issue, and numbered, 
 First Interrogatory, Second Interrogatory, and so forth ; 
 and a marginal note is usually affixed to each, pointing 
 out the witness for whom it is intended. 
 
 In framing interrogatories the same rule 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 thev must not be so framed as to embodv material 
 
 V If 
 
 facts admitting of an answer by a simple negative or 
 affirmative, and thus presenting to the Court the evidence, 
 not as it would be stated by the witness himself, but with 
 the 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 wit- 
 ness may unawares, or through misapprehension, omit an 
 important fact ; and, if such omission should occur, the 
 franier of the interrogatories has not. like an examining 
 counsel at nisi prius the opportunity of adding to and 
 varying his question, so as to suit the apprehension of 
 the witness. Great care is therefore requisite in so fram- 
 ing the interrogatories, that the witness's mind may be 
 led into the right channel of thought ; and the difficulty 
 r*fiQ1 ^ en ec ti I1 e this is materially diminished, *if. be- 
 .fore the interrogatories are settled, an accurate 
 statement is prepared of each witness's evidence, in the 
 same manner as at nisi prius. Beyond these general prin- 
 ciples it is impossible to lay down any uniform system for 
 interrogatories, which must necessarily vary in every in- 
 stance, according to the circumstances of the individual 
 case.
 
 OF EVIDENCE. 721 
 
 At the conclusion of each interrogatory the following 
 words, denoted in the draft by the words " Declare/' &c. 
 are inserted in the engrossment: "Declare the truth of 
 the several matters>in this interrogatory inquired after, 
 according to the best of your knowledge, remembrance, 
 and belief, with your reasons fully and at large;" and at 
 the end of the set the draftsman may, if he please, add 
 wluit 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 evidence, all matters 
 beneficial to the examining party will have been already 
 elicited by the special interrogatories ; so that any evi- 
 dence elicited by the general one is likely to benefit his 
 adversary rather than himself. 
 
 Before the witnesses are examined, the examining offi- 
 cer is generally instructed as to the interrogatories applying 
 to each witness. During the actual examination, the ex- 
 amining officer and the witness are the only persons pre- 
 sent, 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 per- 
 mitted to read, or hear read, any other interrogatory, 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. 
 
 (o) 1 Dan. Ch. P. 858. 
 46
 
 722 ADAMS'S DOCTRINE OF EQUITY. 
 
 The affixing of his signature completes his examination, 
 and he cannot be again examined on behalf of the same 
 party, (p) 
 
 If any of the interrogatories are such as the witness is 
 not bound to answer, e. g., if they intend to expose him to 
 a penalty or forfeiture, or involve a breach of professional 
 confidence, he may decline to answer them, 1 stating at the 
 same time on oath his reasons for so doing ; a proceeding 
 which is somewhat inaccurately called a Demurrer to In- 
 terrogatories. The examiner or commissioner takes down 
 the statement in writing, and the objection 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 him- 
 self, as where it involves a breach of professional confi- 
 dence, or where the interrogatories are leading, or the de- 
 positions 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 In- 
 terrogatories, are in all respects similar to the interroga- 
 tories in chief, except that they are not subject to objec- 
 tion on the ground of leading the witness. It is, however 
 very seldom that any good result is effected by a cross- 
 
 ( p) Cockerell v. Cholmeley, 3 Sim. 313 ; Whitaker v . Wright, 3 II. 
 412. 
 
 (q) Parkhurst v. Lowten, 2 Swanst. 206 ; Langley . Fisher, 5 Beav. 
 443 ; Carpmael v. Powis, 1 Ph. 687. 
 
 (r) Shaw v. Lindsey, 15 Yes. 381 ; Healey v. Jagger, 3 Sim. 494 ; Moys- 
 ton v. Spedcer, 6 Beav. 135. 
 
 1 The witness cannot refuse to be sworn, however : Ex parte Bunn, 26 
 L. J. Ch. 614.
 
 OF EVIDENCE. 723 
 
 examination in equity ; for it is conducted in ignorance of 
 the question in chief, and therefore, as applied to the ad- 
 vrr-ary's ease, is uncertain and often dangerous; and it 
 cannot be applied, as at nisi prius, to the proof of an in- 
 dependent *case. If the evidence of the witness [-#07-1-1 
 is required for that purpose, he may be examined 
 on original interrogatories ; but his cross-examination 
 must be confined to those points on which he has been 
 already examined in chief, (s) 
 
 The time for publishing the depositions is fixed by the 
 general orders of the Court, (t) If either party wishes to 
 delay this step, in order to complete the examination of 
 his witnesses, he must apply to the Master to whom the 
 cause stands referred, to enlarge the publication for a 
 further time. And, even after publication has nominally 
 passed, yet if the depositions have continued 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, 
 i< in reality for leave to examine, notwithstanding publi- 
 cation passed, and must be obtained by application to the 
 Court. (M) 
 
 After the depositions have been published and read, no 
 further evidence is admissible without special leave, ex- 
 cept evidence to discredit a witness, either by impeaching 
 hi- 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, 
 
 (*) 1 Dan. Ch. P. 856. 
 
 (t) Orders of 1845, cxi., cxiii. 
 
 () Carr v. Appleyard, 2 M. & C. 476.]
 
 724 ADAMS'S DOCTRINE OF EQUITY. 
 
 lest, under the pretence of impeaching his credibility, new 
 evidence should be introduced.^) 1 
 
 The rule excluding evidence after publication passed, 
 is subject to the discretion of the Court. 2 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 
 P u kli ca ti n 5 * where the interrogatories originally 
 exhibited have failed of effect, either by a sup- 
 pressal of the depositions on the ground of leading, or by 
 reason of the questions being improperly framed, or where, 
 being misunderstood by the witness, errors occur which at 
 law, where both judge and counsel are present, would have 
 been remedied by putting the question in a better form.(V) 
 The same indulgence has been given where the plaintiff 
 had relied on admissions in the answer, which were held 
 insufficient or ineffectual at the hearing; and where, 
 through the inadvertence of counsel, the plaintiff had 
 omitted to give evidence on a point which, though mate- 
 rial to the relief sought, w T as 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 oppor- 
 tunity of re-examining. And there does not appear to be 
 any instance where liberty has been given to supply evi- 
 dence on the actual question in dispute, (x) The regular 
 
 (v) 1 Dan. Ch. P. 948. ( w ) 1 Dan. Ch. P. 942. 
 
 (x) Cox v. Allingham, Jac. 337 ; Hood v. Pimm, 4 Sim. 101 ; Stanney 
 
 1 See on this point, Gass v. Stinson, 2 Suniner 605 ; Troup v. Sherwood, 
 3 Johns. Ch. 558 ; Evans . Boiling, 5 Ala. 550. 
 
 2 See 3 Greenl. Ev., s. 340, et seq. ; Ridgeway v. Toram, 2 Md. Ch. 303, 
 as to where evidence will be allowed to be taken after publication.
 
 OF EVIDENCE. 725 
 
 mode of obtaining permission to examine witnesses after 
 publication is by a distinct 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 interrogatories to supply the defect. Orders 
 have occasionally been made for a reference to the Master 
 where such course has not been resisted, but such a refer- 
 ence is in truth a substitution of the Master for the Court 
 to decide on the evidence in the cause, and the more regu- 
 lar course is by leave to exhibit interrogatories. (y) 
 
 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 r* 070-1 
 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 ex- 
 amination 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 execution is requisite 
 In such cases proof by affidavit is not available, but the 
 
 . Walmsley, 1 M. & C. 361 ; Hughes r. Eades, 1 Hare 486 ; Woodgate r. 
 Field, 2 Id. 211 ; Attorney-General r. Severne, 1 Coll. 313 ; Cass p. Cass, 
 4 Hare 278. 
 
 (y) Hughes r. Eades, 1 Hare 486 ; Lechmere r. Brasier, 2 Jac. & W.
 
 726 ADAMS'S DOCTRINE OF EQUITY. 
 
 evidence must be taken on interrogatories with the regu- 
 lar opportunity to cross-examine. (z} 1 
 
 After publication has passed, it is the plaintiff's duty 
 to set down the cause for hearing, and to serve a subpoena 
 to hear judgment, (a) If he fails to do so in proper time, 
 the defendant may move to dismiss the bill for want of 
 prosecution, or he may set the cause down at his own re- 
 quest, and serve a subpoena to hear judgment on the plain- 
 tiff. 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. 2 But now, if after the cause is set 
 down, the bill is dismissed, either 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. (&) 
 
 (z) 43d Order of August, 1841 ; Maber v. Hobbs, 1 Y. & C. 585 ; Attor- 
 ney-General v. Pearson, 7 Sim. 309 ; Brace v. Blick, Id. 619 ; Lake . Skin- 
 ner, 1 Jac. & TV. 9. 
 
 (a) 2 D'an. Ch. P. 955, 960. (6) Ord. May, 1845, cxvii. 
 
 1 See, on this subject, 3 Greenl. Ev., 8. 340; Gafney v. Reeves, 6 Ind. 
 71. In New York, if a document intended to be produced in a deed re- 
 quiring 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 plead- 
 ings : Pardee v. De Gala, 7 Paige 135. 
 
 Where an exhibit in a bill was alleged to be well known to the defend- 
 ant, and to be genuine, and this allegation was not denied, the exhibit was 
 taken at the hearing to be genuine : Armitage r. TVickliffe, 12 B. Monr. 
 488. 
 
 2 The propriety of permitting a complainant to dismiss his bill without 
 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.
 
 OF THE HEARING AND DECREE. 727 
 
 ^CHAPTER VII. [*374] 
 
 OF THE HEARING AND DECREE. 
 
 AT the hearing of the cause the pleadings and evidence 
 are stated, and the Court makes its decree. If the 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 appearance, 
 he has neglected to answer, it is a decree pro confesso.(b) 
 The minutes of the decree are then prepared by the re- 
 gistrar, 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 set- 
 tled 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 pre- 
 cludes any subsequent variation in its terms except by an 
 appeal to the House of Lords, (c] 
 
 The practical details of procedure in preparing a decree 
 are not the subjects of our present consideration, which 
 will be devoted rather to the nature of decrees themselves. 
 
 (a) With respect to decrees by default, see 44th Order of August, 1841, 
 and 1 Smith Ch. P. 254 ; 2 Dan. Ch. P. 990. 
 
 (b) With respect to decrees pro confesso, see 11 Geo. 4 & 1 Win. 4, c. 
 36 ; 3 4 Viet, c. 94 ; 4 & 5 Viet. c. 52 ; 9th. Order of August, 1841 ; Or- 
 ders of May, 1845, Ixxvi.-xcii. ; 1 Smith Ch. P. 231 ; 1 Dan. Ch. P. 479. 
 
 (c) 2 Dan. Ch. P. c. xxiv.
 
 728 ADAMS'S DOCTRINE OF EQUITY. 
 
 PS751 *Decrees, considered in this light, will be di- 
 vided into Preliminary and Final. The prelimi- 
 nary decree provides for the investigation of questions 
 which are material either in determining on subsequent 
 steps, or in deciding the issue between the parties. 1 The 
 final decree, called the Decree on Further Directions, or 
 on the equity reserved, (d] disposes ultimately 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 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 investigated, which although with- 
 in the province of the Court, are such as the presiding 
 judge cannot at the hearing effectually deal with. To 
 obviate these impediments the preliminary decree directs, 
 1. A case for a Court of law ; 2. An issue for a jury ; 3. 
 An action at law, to be determined in thq ordinary course ; 
 or 4. A reference to one of the Masters of the Court, to 
 acquire and impart to it the necessary information. Each 
 of these methods of inquiry may be also adopted on in- 
 terlocutory applications by motion or petition, (e) but, as a 
 
 (d) Bruin v. Knott, 12 Sim. 453. 
 
 (e) Ansdell v. Ansdell, 4 M. & C. 449 ; Lancashire v. Lancashire, 9 
 Beav. 259. 
 
 1 A decree in Chancery which leaves the equity of the case, or some ma- 
 terial question connected with the merits, for future determination, is an 
 interlocutory, and not a final decree : Teaff v. Hewitt, 1 Ohio St. N. S. 511. 
 See also, Dabbs v. Dabbs, 27 Ala. 646 ; Humphrey v. Foster, 13 Gratt. 
 653 ; Re Colom, 3 Md. Ch. 278 ; Hudson v. Kline, 9 Gratt. 379 ; Harrison 
 v. Rush, 15 Mo. 175 ; Verden v. Coleman, 18 How. U. S. 86 ; Ayres v. 
 Carver, 17 Id. 391 ; Craighead v. Wilson, 18 Id. 199 ; Wilhelm . Caylor, 
 32 Md. 151.
 
 OF THE HEARING AND DECREE. 729 
 
 part of the regular proceedings of the Court, they prop- 
 erly 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 juris- 
 diction ; for, subject to any restraint which its own dis- 
 cretion may impose, the Court has jurisdiction to decide 
 every question, whether of law or fact, incidentally 
 brought before it. If, however, a doubtful question of 
 law arises, which can be *effectually separated 
 
 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. (gY 
 
 2. An issue is directed where an incidental question of 
 facts is so involved in doubt by conflicting or insufficient 
 evidence that the Court, considering the inefficacy of 
 written testimony, is desirous of referring it to the verdict 
 
 (f) Morrice v. Langham, 11 Sim. 280. 
 
 (g] Lansdowne v. Lansdowne, 2 Bligh. 0. S. 86 ; Spry v. Bromfield, 12 
 Sim. ""> : Muddle r. Fry, Mad. & G. 270; Northain Bridge Company v. 
 Southampton Railway Company, 11 Sim. 42. 
 
 1 The practice of stating cases for the opinion of a court of law is now 
 abolished : Stat. 15 & 16 Viet, c. 86, s. 61 ; 25 & 26 Viet. c. 42, s. 1 ; 
 Daniell's Chan. Prac. 1121.
 
 730 ADAMS'S DOCTRINE OF EQUITY. 
 
 of a jury.(/j) 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) 1 
 
 (h) Moons v. De Berriales, 1 Russ. 301 ; Lloyd v. Wait, 1 Ph. 61. 
 (f) Clayton v. Meadows, 2'H. 29; Whitaker v. Newman, 2 Id. 302. 
 
 1 See, on this subject, Daniell's Chan. Prac., ch. xxvi., s. 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 : Kearney v. Har- 
 rell, 5 Jones Eq. 199 ; and if in such case there is a verdict on the issue in 
 favor of the complainant, the decree should nevertheless be for the dis- 
 missal of the bill : Reed v. Cline, 9 Gratt. 136 ; Wise v. Lamb, Id. L >( J4. 
 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. 1 16 ; Johns v. Erb, 5 Id. 237. A chancellor 
 may decide every question of fact himself; but any question he considers 
 very doubtful, he may and should refer to a jury. But the verdict is to 
 satisfy the conscience of the chancellor, and if he is not satisfied with it, 
 he should disregard it; on the other hand, if he concurs with the jury, or 
 if his mind still oscillates, he should allow the verdict to be decisive : Lee 
 v. Beatty, 8 Dana 207. The practice of referring doubtful questions to a 
 jury is not confined to those cases where witnesses are to be introduced, 
 but whe.n the chancellor is perplexed with doubtful questions of fact, he 
 may have the aid of a jury, as well where the decision must be upon the 
 written evidence in the record, as where oral testimony is to be intro- 
 duced: Id. 212. The submission of the entire case to a jury is contrary 
 to practice : Milk v. Moore, 39 111. 584. 
 
 In many of the United States, and in the Federal judicature, however, 
 the trial by jury is secured to suitors, by constitutional or statutory pro- 
 . visions, 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 sub- 
 ject, 3 Greenl. Ev., part vi., ch. 1, 261, et seq , \ 339 ; Hoffman v. Smith, 
 1 Md. 475 ; Thomason v. Kennedy, 3 Rich. Eq. 440 ; Harrison v. Rowan, 
 4 Wash. C. C. 32 ; Pleasants v. Ross, 1 Wash. (Va.) 156 ; Marsden . 
 Brackett, 9 X. II. 336 ; Charles R. Bridge . 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. Fall, 7 Ind. 692 ; see, however, Baker
 
 OF THE HEARING AND DECREE. 731 
 
 The form of an issue was formerly that of an action on a 
 wager, assumed to have been made respecting the fact in 
 dispute ; but this fiction is now dispensed with, and the 
 question may be referred to the jury in a direct form.(^) 
 
 The result of an issue is not necessarily a mere general 
 verdict, but liberty may be given to take a special verdict, 
 or a special case.(7) 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 endorsed on the 
 postea.(m) 
 
 *The Court will also provide that the issue p^.,, , 
 shall effectually raise the real question, cleared 
 of all extrinsic matter, by directing all requisite admis- 
 sions to be made ; and will secure its satisfactory investi- 
 gation, by compelling the parties to produce at the trial 
 all material documents in their possession or power. 1 
 
 The privileges of an heir-at-law and of a rector or vicar, 
 in suits for establishing a will or modus, to demand an 
 i--nc as ;i matter of right, have already been considered 
 in treating of the jurisdiction for such establishment, (ri) 
 With these exceptions, the granting of an issue is discre- 
 tionary with the Court, and the attendant expense and 
 delay will only be incurred when, in the exercise of a 
 sound discretion, it is deemed necessary, (o) 2 
 
 (k) 8 & 9 Yict. c. 109, 19. (1} Clayton . Nugent, 1 Coll. 362. 
 
 (7/1) White v. Lisle, 3 Sw. 345. 
 
 (n) Supra. Tithes ; Testamentary Assets. 
 
 (o) Short v. Lee, 2 J. & W. 495 ; Hampson v. Hampson, 3 Ves. & B. 43. 
 
 v. Williamson, 2 Penn. St. 116 ; Johns v. Erb, 5 Id. 237 ; and in New York, 
 before the Rev. Code, Patterson v. Ackerson, 1 Edw. Ch. 96. 
 
 1 See, on this subject, 3 Greenl. Ev., \ 377, &c. ; Apthorp v. Comstock, 2 
 Paige 482 ; Baker v. Williamson, 2 Penn. St. 116 ; Johns . Erb, 5 Id. '2 :)7. 
 
 2 Scheetz's Appeal, 35 Penn. St. 94 ; Blake v. Shreve, 2 Beas. 456 ; 
 Black v. Lamb, 1 Id. 108 ; Kirkpatrick v. Atkinson, 11 Rich. Eq. 27.
 
 732 ADAMS'S DOCTRINE OF EQUITY. 
 
 The same discretion is exercised after a verdict has 
 been returned. The object of an issue, like that of a 
 case, is not to bind the Court, but to satisfy its conscience. 
 If, therefore, the verdict, coupled with the information of 
 the judge's notes, 'does not afford satisfaction, a new trial 
 will be directed, although there be no surprise or fraud, 
 nor manifest miscarriage, and the verdict be one which at 
 common law would be undisturbed, (p) 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 intended, may direct 
 a new one to be framed ; or may, on reconsideration of 
 the evidence, decide at once against the verdict. (qY 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) 
 
 *^* J ^~ n ac tion a ^ l ftw i g directed where the 
 equity is based on a disputed legal right, but the 
 trial of such right at law is prevented either by equitable 
 impediments, which the Court is asked to remove, or by 
 the mere pendency of the suit itself; e. #., where an heir- 
 at-law is unable to bring an ejectment, by reason of an 
 outstanding mortgage or term, or where the bill seeks 
 an injunction against the infringement of a disputed 
 patent. 2 
 
 (p) Bootle v. Blundell, 19 Ves. 500; Northam Bridge Company v. South- 
 ampton Railway Company, 11 Sim. 42; East India Company v. Bazett, 
 Jac. 81. 
 
 (q) Armstrong v. Armstrong, 3 M. & K. 45. 
 
 (r) Locke . Colraan, 2 M. & C. 42 ; White v. Wilson, 13 Ves. 88 ; Baker 
 . Hart, 3 Atk. 542 5 Wilson . Beddard, 12 Sim. 28. 
 
 1 But see ante, note to p. 376. See also Austin v. Baintor, 50 111. 308 ; 
 Lowe v. Traynor, 6 Cold. (Tenn.) 633. 
 
 2 See Daniell's'Chan. Prac., ch. xxvi., section 2.
 
 OF THE HEARING AND DECREE. 733 
 
 In this class of cases there is not a mere point of law 
 or fact incidentally in dispute, as to which the Court, for 
 its own satisfaction, seeks the aid of another tribunal ; 
 but there is a general question of right, determinable as 
 such by the ordinary Courts, and requiring a decision, 
 according to the course of those Courts, both of disputed 
 facts and of the law as applicable thereto. The general 
 rule, therefore, is that where the foundation of a suit is a 
 legal demand, on which the judgment of a Court of law, 
 whether obtained on a verdict or in any other shape, 
 ought to be conclusive, the Court of Chancery will not 
 direct a case or issue, but will either order an action to be 
 brought, providing that the term or other like impediment 
 shall not be set up as a defence at law, or will retain the 
 bill for a limited period, with liberty for the plaintiff to 
 proceed at law.(s) The Court will not in general retain 
 the bill unless it thinks that, if the action succeeds, a 
 valid equity will exist ; but the retainer is not conclusive 
 on the point, and the decree, on further directions, may 
 be against the plaintiff. (t) 1 If there are any persons 
 equitably interested, and who cannot therefore be par- 
 ties at law, they will have liberty given them to attend 
 the trial, and to make such defence as they may be ad- 
 vised. Provision will also be made for a satisfactory 
 trial, by directing admissions by the parties, and produc- 
 
 (s) Pemberton v. Pemberton, 13 Ves. 298; Bootle v. Blundell, 19 Id. 
 500 ; Waterford . Knight, 11 Clarke & F. 662 ; Butlin v. Masters, 2 Ph. 
 290. (t) Harmood v. Oglander, 6 Ves. 225. 
 
 1 See, on this point, Ches. & Ohio Canal v. Young, 3 Md. 480. 
 
 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 bond 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.
 
 734 ADAMS'S DOCTRINE OF EQUITY. 
 
 tion of documents, as in the case of issues. But the 
 Court of Chancery assumes no jurisdiction over the action; 
 [-#070-1 an( ^ if ^either party be dissatisfied with the re- 
 sult, 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 malfeasance 
 of the litigants ; the more effectual working out of de- 
 tails, which the judge sitting in Court is unable to inves- 
 tigate ; and the supplying defects or failures in evidence. 1 
 And it differs materially from a case, an issue, or an 
 action, because these steps, when directed, are ' rather 
 transfers to another tribunal than steps of procedure in 
 the Court itself. But a reference to a Master is an 
 ordinary step in the cause, and comparatively few causes 
 of importance are decided without one or more such 
 references. 
 
 1. The reference for the protection of absent parties is 
 
 1 The Master's office is a branch of the Court: Stewart v. Turner, 3 
 Edw. Ch. 458. The master, in his ministerial character, is bound strictly 
 to follow the instructions of the Court : Fenwicke v, Gibbes, 2 Dessaus. 
 629. A reference will not be ordered to inquire relative to a fact consti- 
 tuting the gist of the controversy, and put in issue by the pleadings : 
 . Lunsford v. Bostion, 1 Dev. Eq. 483 ; see Gilmore v. Gilmore, 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 . Ilemsen, 2 Johns. Ch. 496'; 
 Gass v. Stinson, 2 Sumn. 605 ; Jenkins v. Eldredge,*3 Story 299 ; Hollister 
 v. Barkley, 11 N. H. 501 ; Benson v. Le Roy, 1 Paige 122; McDougald v. 
 Dougherty, 11 Ga. 570; Dougherty v. Jones, Id. 432; Gilmore v. Gilmore, 
 40 Maine 50. 
 
 See, on the subject of references to and proceedings before master, Rules 
 U. S. Courts in equity, No. Ixxiii. et seq. ; Penna. No. Ixii. et seq. ; 3 
 Greenl. Evid., $332, et seq.
 
 OF THE HEARING AND DECREE. 
 
 made where a claim, or the possibility of a claim, to the 
 property in suit belongs to creditors or next of kin, or 
 other persons entitled as a class, so that it is uncertain at 
 the hearing whether they are all before the Court. In 
 order to remove this uncertainty, a reference is made to 
 the Master to ascertain the fact before any step is taken 
 for ascertaining or distributing the fund. (11} And, on the 
 same principle, if a proposal of compromise or of arrange- 
 ment by consent is made where any of the parties 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, 1 
 
 2. A reference for the working out of details is prin- 
 pally made in matters of account, when the Court de- 
 clares that the account must be taken, and refers it to 
 the Master to investigate the items. 2 The same principle 
 applies to the investigation of a vendor's title ; for the 
 Court cannot undertake to peruse the abstract, and that 
 duly devolves on the Master. 3 In like manner it will be 
 referred to the Master to settle conveyances or other 
 
 () Dan. Ch. P. 683 ; Fisk v. Norton, 2 Hare 381. 
 
 1 Where a suit is instituted on behalf of an infant by a prochein ami, 
 the Court, on a suggestion of its being improperly instituted, -will refer it 
 to a master, to inquire into the circumstances, and to report whether the 
 suit is for the benefit of the infant : Garr v. Drake, 2 Johns. Ch. 542. 
 
 2 See Hart v. Ten Eyck, 2 Johns. Ch. 513 ; Consequa v. Fanning, 3 
 Id. 591 ; Barrow v. Rhinelander, Id. 614; Maury v. Lewis, 10 Yerg. 115. 
 
 * And where the plaintiff, in a bill for specific performance, shows his 
 right to a conveyance, but the defendant has, by sale or otherwise, put it 
 out of his power to convey, it may be referred to a Master to ascertain the 
 damages : Woodcock v. Bennet, 1 Cowen 711. Upon a bill for specific per- 
 formance, the title will not be referred, where the nature of it is distinctly 
 seen: Wilbanks v. Duncan, 4 Dessaus. 536; Doininick r. Michael, 4 Sandf. 
 S. C. 394 ; see ante 84, notes.
 
 736 ADAMS'S DOCTRINE OF EQUITY. 
 
 deeds, to superintend *sales, to appoint trustees, 
 receivers, and guardians, and so forth. 
 
 For the same reason, the Masters are deputed, to judge 
 of impertinence or insufficiency in pleadings, the decision 
 of which must depend on a minute 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, (v) 
 
 On bills for a partition, for settling boundaries, and for 
 assignment of dower, the appointment is not made by 
 reference to a Master, but, in analogy to the process at 
 law, to commissioners specially appointed, reserving all 
 further directions until after their return. 
 
 Formerly the mode of directing these accounts and in- 
 quiries was by a preliminary decree at the hearing of the 
 cause, reserving the ultimate decision until after a report. 
 In the case of a bill for specific performance, when the 
 .title only is in dispute, it has long been the practice to 
 refer it on motion, either before or after answer, (w) But 
 in the generality of cases the direction was delayed till 
 the hearing, and the consequent necessity of two succes- 
 sive decrees was frequently productive of needless delay 
 and expense. 
 
 () 3 & 4 Wm. 4, c. 94, s. 13. 
 
 (ic) Balmanno v. Lumley, 1 Yes. & B. 224 ; Matthews v. Dana, 3 Mad. 
 470.
 
 OF THE HEARING AND DECREE. 737 
 
 In order to remedy this evil, it has been ordered* that 
 "in all cases in which it shall appear that certain prelimi- 
 nary 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 appeared to the r*oo-i-i 
 bill, to move the Court, on notice, that such in- 
 quiries and accounts shall be made and taken, and that 
 an order referring it to the Master to make such inqui- 
 ries, and take such accounts, shall thereupon be made, 
 without prejudice to any question in the cause, if it shall 
 appear to the Court that the same will be beneficial to 
 such (if any) of the parties to the cause as may not be 
 competent to consent thereto, and that the same is con- 
 sented to by such (if any) of the defendants, as, being 
 competent to consent, hate not put in their answers, and 
 that the same is consented to by, or is proper to be made 
 upon, the statements, contained in the answers of such (if 
 any) of the defendants as have answered the bill." (a;) 
 
 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 
 
 (ar) 5th Order of May, 1839. 
 47
 
 738 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 prejudice to 
 any question in the cause. But it was refused, because 
 such an inquiry assumed that a title shown after the spe- 
 cified time would be available, and therefore if the pur- 
 chaser's objection succeeded at the hearing, the inquiry 
 might be useless. The plaintiff then offered to take an 
 inquiry whether, on the day of the alleged *rescis- 
 sion, or on an earlier day, a good title had been 
 shown. But that inquiry was also refused, because, al- 
 though in any view of the case an affirmative answer 
 would decide the case, yet, if the purchaser's objection 
 were overruled, a negative one would lead to no re- 
 sult, (y) 
 
 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 men- 
 tioned that such a reference is occasionally made for ascer- 
 taining 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 circum- 
 stances 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 
 
 (y) Topham . Lightbody, 1 Hare 289; Curd v. Curd, 2 Id. 116 ; Breeze 
 v. English, Id. 118 ; Clifford v. Turrell, 1 N. C. C. 138.
 
 OF THE HEARING AND DECREE. 739 
 
 made in the answer, though not established by proof, 
 which, if true, would be material to 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 docu- 
 ments in their power, and shall be examined on interroga- 
 tories as the Master shall direct, (a) 1 And he has a similar 
 power of examining, either on interrogatories or viva voce, 
 any creditors or other persons who, by coming in to claim 
 before him, may render themselves quasi parties to the 
 suit. (6) 
 
 The method in which the Master proceeds is by issu- 
 ing warrants from time to time, directing all parties con- 
 cerned to attend before him at the time and for the pur- 
 poses *therein mentioned. The proceedings r*ooo-i 
 under a warrant may be attended by all persons 
 beneficially interested, whether actual parties to the suit, 
 or such as have become quasi parties by having come in 
 and established a claim, whenever the object is such as 
 may affect their interests, or increase or diminish their 
 proportion in the fund. And, on the same principle, all 
 such 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 
 
 (z) Broadhurst v. Balguy, 1 N. C. C. 16 ; Connop t?. Hayward, Id. 33 ; 
 Miller v. Gow, Id. 56; McMahon . Burchell, 2 Phill. 127. 
 (a) 9th Order of 1828. (b) 72d Order of 1828. 
 
 1 As to the Master's power of examining a complainant, see McCrackan 
 p. Valentine, 5 Selden (N. Y.) 42.
 
 740 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 ;(e) and, secondly, 
 of any additional evidence which may be produced in the 
 office, subject, however, to the restriction that a witness 
 who has been already examined in the cause cannot be 
 re-examined before the Master by the same party without 
 leave of the Court, (d) 1 The additional evidence thus 
 brought forward ought in strictness to be given on inter- 
 rogatories or viva voce,(e) but it is usual to substitute 
 affidavits by express or tacit consent. 2 During the pro- 
 gress 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 inter- 
 rogatories, 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 
 
 (c) 65th Order of 1828. 
 
 (d) Willan r. Willan, 19 Yes. 590 ; Rowley v. Adams. 1 M. & K. 545 ; 
 Whisker v. Wright, 3 Hare 412 ; England v. Downs, 6 Beav. 281. 
 - (e) 69th Order of 1828 ; [Dougherty . Jones, 11 Ga. 432.J 
 
 (/) Trotter v. Trotter, 5 Sim. 483 ; Nelson v. Bridport, 6 Beav. 295 ; 
 67th Order of 1828. 
 
 1 See Remsen v. Remsen, 2 Johns. Ch. 501. If the defendant wishes to 
 controvert any allegations in the bill he shonld put them in issue by plea 
 or answer ; and neglecting this he is precluded from introducing evidence 
 for that purpose before the Master on reference : Ward v. Jewett, Walk. 
 Ch. 45. 
 
 2 See Story . Livingston, 13 Peters 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 Ga. 570.
 
 OF THE HEARING AND DECREE. 741 
 
 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 hefore him written objections, 
 specifying the point in w r hich 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 
 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 con- 
 clusion, he should so far detail the facts which warrant it 
 as may enable the Court to judge of its correctness ; and 
 it is frequently advantageous, though not necessary, that 
 he should also state the reasons which have induced his 
 decision. But he must not omit the conclusion itself, or 
 state evidence, or circumstances which are presumptive 
 evidence, without finding whether they amount to a sat- 
 
 (g) 48th Order of August, 1841 ; In re Grant, 10 Sim. 573 : Meux v. 
 Bell, 1 Hare 93.
 
 742 ADAMS'S DOCTRINE OF EQUITY. 
 
 isfactory proof. (k) And if liberty be given, as it fre- 
 quently is, *to state special circumstances, he 
 should state, not the evidence, but the facts 
 proved, as on a special verdict at law.(^) 1 
 
 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, () which 
 is prepared, disputed, and confirmed in the same manner 
 as a general one; the only difference 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 
 praying such directions 'as are consequent on the separate 
 report. 
 
 Subject to this right of making separate reports, the 
 rule is, that a Master's report must dispose of all matters 
 referred, either by actual findings on each section of the 
 decree, or by pointing out what matters of reference have 
 been waiA^ed, and what have been disposed of by separate 
 reports; and the omission of any such matters, or the in- 
 troduction of any matter not referred to him, will render 
 his report erroneous. (I) 
 
 As soon as the Master's report has been filed, the next 
 step is its confirmation by the Court. 
 
 (h) Lee v. Willock,' 6 Ves. 605 ; Meux v. Bell, 1 Hare 91 ; Chainper- 
 nowne v. Scott, 4 Mad. 209. 
 
 (i) Marlborough v. Wheat, 1 Atk. 454. 
 
 (k) 70th Order of 1831. 
 
 (1) "Winter v. Innes, 4 M. & C. 101 ; Jenkins v. Briant, 6 Sim. 605 ; Gaylor 
 . Fitzjohn, 1 Keen 469. 
 
 1 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 305; Bailey v. Myreck. 52 Maine 132. See, in Indiana, 
 McKinney v. Pierce, 5 Ind. 422.
 
 OF THE HEARING AND DECREE. 743 
 
 In the case of reports under orders made on petition, a 
 petition is the usual mode of objection and confirmation, (m) 
 But with respect to reports under a decree or decretal 
 order, the regular mode of 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, confirm- 
 ing the report absolutely, (w) 1 
 
 If any of the persons interested, whether actual or 
 quasi *parties, are dissatisfied with the report, 
 they may file exceptions after service of the 
 order nisi, and show them as cause against its being made 
 absolute. 
 
 The exceptions, which, like the pleadings and 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) 2 If, how- 
 
 (m) Empringham v. Short, 11 Sim. 78; Ottey v. Pensam, 1 Hare 322; 
 Beavan v. Gibert, 8 Beav. 308. 
 
 () 2 Dan. Ch. P. 1227. 
 
 (o) Purcell v. McNamara, 12 Ves. 166 ; Ballard . White, 2 Hare 158 . 
 Flower v. Hartopp, 6 Beav. 485 ; Stocken . Dawson, 2 Phill. 141. 
 
 1 See Hulbert v. McKay, 8 Paige 632. 
 
 2 Story v. Livingston, 13 Peters 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 Ga. 570. An error mus 
 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 the credibility of witnesses : Sinnickson v. Bruere, 1 Stockt. (N. J.) 
 659 ; Izard v. Bodine, Id. 309 ; Howe v. Russell, 36 Maine 115 ; Miller v.
 
 744 ADAMS'S DOCTRINE OF EQUITY. 
 
 ever, there be error apparent on the report, as, for exam- 
 ple, if the facts stated contradict the conclusion, it is 
 unnecessary to except. 1 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, (p) On the same principle, 
 the introduction of matter merely irrelevant, is not a 
 ground of exception, for its irrelevancy must be apparent 
 from the report itself. 
 
 The next step after filing exceptions, is that they should 
 be heard and determined by the Court, and in doing this 
 there are three courses open for adoption. 
 
 1. They may be disallowed, or allowed absolutely; 
 which has the effect of at once confirming the report, 
 either as it stands, or with such changes as the allowance 
 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 favorable 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- 
 
 (p) Adams v. Claxton, 6 Ves. 226; Ottey v. Pensam, 1 Hare 326; 
 Gregory v. West, 2 Beav. 541. 
 
 Whittier, Id. 577; McKinney v. Pierce, 5 Indiana 422; Foster v. Goddard, 
 1 Black S. C. 509. 
 
 See, as to practice on exceptions to Masters' reports, in the United States 
 Courts, Rule in Eq. No. Ixxxiii. et seq. : Penna. No. Ixix., &c. 
 
 1 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 exceptions 
 have been filed: Lang v. Brown, 21 Ala. 179.
 
 OF THE HEARING AND DECREE. 745 
 
 cessity for *further investigation : it may be re- [-#007-1 
 ferred back to the Master to review his report, 
 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 ac- 
 companied by an allowance of the exception, he can come 
 to no conclusion inconsistent with the terms of the excep- 
 tion. If no order is made on the exception, his finding 
 on reviewal is unfettered, (q) 
 
 3. If the suit has taken such a course, that at the time 
 of hearing the exceptions, it is apparent, that whatever 
 order be made, the same decree will follow, the Court may 
 decline to adjudicate on them, and may proceed to de- 
 cree on further directions, as if no exceptions had been 
 filed, (r) 1 
 
 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 
 
 (q) Egerton . Jones, 1 Russ. & M. 694 ; Twyford v. Trail, 3 M. & C. 
 Livesey r. Livesey, 10 Shu. 331 ; Ex parte Grant, Id. 573 ; Ballard c. 
 White, 2 Hare 158 ; Stocken v. Dawson, 3 Phil. 141. 
 
 (r) Hall v. Laver, 1 Hare 571 ; Robinson v. Milner, Id. 578 ; Courtenay 
 r. Williams, 3 Id. 554, 639. 
 
 1 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 complain- 
 ant to recover. The previous interlocutory orders are then open to re- 
 vision : Fourniquet v. Perkins, 16 How. U. S. 82. In Lang v. Brown, 21 
 Ala. 179, however, it was held that where, from the improper frame of the 
 decree of reference, the justice of the case cannot be got at without an al- 
 teration 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 exceptions make an order incon- 
 sistent with the decree. The decree of reference may also be reheard on 
 appeal, though no exceptions have been taken : Id.
 
 746 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 setting 
 it down will have been uselessly incurred. 
 
 When the exceptions have been disposed of and the 
 report confirmed, the cause is heard on further directions 
 and this is repeated from time to time, as often as any 
 further directions are reserved, (s) 
 
 The decree on further directions is confined to 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 
 may be *stated in a petition to be heard with the 
 cause, (ss) But no order can be made on further 
 directions which will vary or impugn the original decree, 
 whether on a point which it had expressly decided, or 
 one which, being raised by the pleadings, and not depend- 
 ing on the questions referred, has been left unnoticed, and 
 thus by implication disallowed.(^) If the original decree 
 is erroneous, the proper mode of correction is by a re- 
 hearing or appeal. 
 
 A decree thus made, without any reservation of further 
 directions, constitutes a final decree ; and after it has 
 been pronounced, the cause is at an end, and no further 
 hearing can be had. It often happens, however, that al- 
 though the decree requires no reservation of further di- 
 rections, yet there is a possibility of future interests 
 arising, 'which having a potential existence only, cannot 
 be then the subject of judicial decision, and which, there- 
 
 (*) 2 Daii. Ch. P. c. 26. 
 
 (ss) Pinkus v. Peters, 5 Beav. 253 ; Tanner v. Dancey, 9 Id. 339. 
 
 (t) Le Grand v. Whitehead, 1 Russ. 309 ; East India Company v. Keigh- 
 ley, 4 Madd. 38 ; Camp v. Moody, 2 Ves. 470 ; Creuze v. Hunter, 2 Ves. 
 Jun. 164.
 
 OF THE HEARING AND DECREE. 747 
 
 fore prevent the cause from being altogether disposed 
 of; e. (/., where a fund is given to a tenant for life, living 
 at the time of the decree, with remainder to a class of 
 individuals who cannot be ascertained till his death.' In 
 this case the Court will not declare the future interests, 
 because it cannot know what alterations may be produced 
 by time ; but it will order payment of the income to the 
 tenant for life, or make such other decree as the im- 
 mediate circumstances warrant, with liberty for all par- 
 ties to apply, as their respective interests arise. The 
 effect of this liberty is to enable them to apply sum- 
 marily by petition or motion, without the necessity of 
 again hearing the cause. If a 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 separate account, distinguished 
 by an explanatory title, with a like liberty to apply. In 
 this? way the share of an infant, or of a married woman, 
 will be carried over to a separate account, entitled in the 
 *one case the infant's account, and in the other, r#qcqn 
 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 ascertained, (w) 
 
 On the same principle, if a sum of money appears at 
 the hearing to belong primd facie to one person, subject 
 to claims by others which cannot then be discussed, it 
 will be carried to the account of the primd facie owner, 
 with a direction that it shall not be paid to him without 
 notice to the adverse claimants, and such claimants may 
 then present a petition to have the fund out of Court, 
 
 (u) 2 Dan. 1251.
 
 748 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 
 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. 1 Such, 
 
 (r) 2 Dan. Ch. P. 1342. 
 
 1 The subject of costs is now very much governed by statute, and by the 
 rules of Court, in the different 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. Saunders, 4 
 Johns. Ch. 503 ; King v. Clarke, 3 Paige 76 ; Boughton v. Philips, 6 Id. 
 334; Harris v. Williams, 10 Id. 108; Price v. Tyson, 3 Bland 392; 
 McElwe v. Sutton, 1 Hill Eq. 32; Dennis v. Riley, 1 Foster (N. 11.^ 50. 
 If, however, the bill also pray general or special relief, the costs are as in 
 other cases : McDougall v. Miln, 2 Paige 325 ; Ross v. Adams, 5 Dana 509. 
 And the costs on successful exceptions 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 pro- 
 perty as owner : Slee v. Manhattan Co., 1 Paige 48 ; Turner v. Turner, 3
 
 OF THE HEARING AND DECREE. 749 
 
 for instance, are suits for discovery and for perpetuating 
 testimony, in which the costs are paid by the plaintiff; 
 suits for partition, in which, by analogy to a partition at 
 law, the costs of the commission and of making out the 
 title are paid in proportion to the respective interests, 
 and *no other costs either precedent or subse- r#QQ(yi 
 quent 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 
 
 (IT) 2 Dan, 1103 ; Bamford v. Bamford, 5 Hare 203. 
 '(to) 2 Dan. Ch. P. 1260-1267. 
 
 Munf. 66 ; Saunders v. Frost, 5 Pick. 259 ; May v. Eastin, 2 Porter 414 ; 
 Bridgen v. Carhartt, Hopkins 234 ; Phillips v. Hulzizer, 20 N. J. Eq. 308. 
 
 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 ; Badeau v. 
 Rogers, 2 Paige 209 ; Atkinson v. Manks, 1 Cowen 691 ; Canfield v. Ster- 
 ling. 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 stake- 
 holder 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 Md. Ch. 
 253. 
 
 In partition, the costs generally come out of the estate, or are divided 
 between all the parties : Coles v. Coles, 2 Beas. 365. But where the com- 
 plainant 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. 
 
 See, on the subject of costs, Daniell's Ch. Prac. ch. xxx.
 
 750 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 enti- 
 tled to their reasonable costs out of the fund, except in so 
 far as their own misconduct has occasioned the suit;(^) 
 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, to the plaintiff, as the primary 
 charge on the personal estate. (e) 1 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 appor- 
 tionment may be made.(J) A claim has also been made 
 on behalf of the Attorney-General to have his costs from 
 the plaintiff in suits where a claim by the Crown is in- 
 volved, on the ground that they are incurred in perform- 
 ance of a public duty ; and a similar claim has been set 
 up on behalf of provisional assignees in suits for foreclo- 
 sure ^ a bankrupt's or insolvent's estate. *But 
 both these claims have been disallowed; for what- 
 ever be the hardship on the parties making them, it is 
 not to be remedied at the plaintiff's expense. (<?) 
 
 (x) 2 Dan. Ch. P. 1257-1260. (y) Id. 1286. 
 
 (z) Shuttlewerth v. Howarth. Cr. & P. 228 ; Larkins . Paxton, 2 M. & 
 K. 320 ; Tipping v. Power, 1 Hare 409 ; Tanner . Dancey, 9 Beav. 339. 
 
 (a) Tipping v. Power, 1 Hare 409 ; Hepworth v. Heslop, 3 Id. 485. 
 
 (b) Christian v. Foster, 2 Ph. 161. 
 
 (c) Perkins v. Bradley, 1 Hare 233 ; Appleby v. Duke, 1 Phill. 272. 
 
 1 See, on this subject, Decker v. Miller, 2 Paige 149 ; Hunn v. Norton, 
 Hopkins 344.
 
 OF THE HEARING AND DECREE. 751 
 
 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 allowance called 
 " costs as between solicitor and client." In suits of a 
 litigious class, the taxation is alwa} r s " as between party 
 and party," but in those of a protective or administrative 
 kind, its adoption though general is subject to exceptions. 
 The suits in which an exception is made are those for 
 performance of trusts and administration of assets, in 
 which the trustee or personal representative 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." (d) 1 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 admin- 
 i>t<-red 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. 
 
 (d) 2 Smith, Ch. P. 461. (e) Stanton v. Hatfield, 1 Keen 358. 
 
 1 See, on this subject, Hill on Trustees 856, et seq., and notes, 4th Am. 
 ed. ; McKim v. Handy, 4 Md. Ch. 228.
 
 752 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 
 J with costs.. But the rule seems to be established 
 that the bill in such case will be dismissed without costs ; 
 and in all other cases the rule is so far strictly adhered to 
 that a successful party never pays costs. (/) If a decree 
 for specific performance is obtained by a vendor, who has 
 not shown a good title before the suit commenced but who 
 has made out a title afterwards, he will be liable for all 
 the costs incurred previously to the making out of such 
 title. 
 
 With respect, however, to the right of the successful 
 party to receive costs, the practice is less uniform, and de- 
 crees are frequently made, and bills dismissed without 
 costs, on the ground that the failing party has been misled 
 by his adversary's conduct, or that the question in dispute 
 was one of very doubtful character, or even in some in- 
 stances merely in consideration of the hardship of his 
 case.( g} 
 
 The propriety of making exceptions to the rule, on the 
 ground of doubt or hardship, appears to be very question- 
 able, because, however doubtful the title may be, or how- 
 ever reasonable the litigation, it is but fair that the party 
 ultimately found entitled should be reimbursed the ex- 
 
 (/) 3 Sug. V. & P. 137 ; Westcott v. Culliford, 3 Hare 275 ; Maiden v. 
 Fyson, 9 Beav. 347. [See Brooks v. Byam, 2 Story 553.] 
 
 (g) Fen'ton v. Brown, 14 Ves. 144 ; Robinson v. Kosher, 1 N. C. C. 7 ; 
 Cogan v. Stephens, Lewin on Trustees 730 ; 2 Dan. Ch. P. 1279. 
 
 1 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. 577 ; Blakeney v. 
 Ferguson. 14 Ark. 460 ; Tatham v. Lewis, 65 Penn. St. 65. -
 
 OF THE HEARING AND DECREE. 753 
 
 pense of defending his right, (h) There is, however, no 
 doubt that a limited discretion is exercised by the Court; 
 but, subject to such discretion, the general rule is that the 
 costs will follow the event, and more especially so if the 
 plaintiff's claim be either made or resisted on the ground 
 of fraud, (i} 1 If several claims or defences are set up, of 
 which some only succeed, the costs of suits may be ap- 
 portioned accordingly, or, instead of such apportionment, 
 each party may be left to the payment of his own.(&) 2 
 
 *If a specific tender of the amount due be made 
 before the commencement of the suit, or after its L 
 commencement of the amount and costs already incurred, 
 a proof of such tender, and of its refusal by the plaintiff, 
 will throw on him the burden of subsequent costs ; and 
 
 (7i) Millington v. Fox, 3 M. & G. 352. 
 
 (i) Scott v. Dunbar, 1 Moll. 442 ; Wright v. Howard, 1 S. & S. 190. 
 (k) 3 Dan. Ch. P. 40 ; 2 Smith 463; Strickland v. Strickland, 3 Beav. 
 242. 
 
 1 As a general rule, the prevailing party is entitled to costs. This, how- 
 ever, 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 Id. 317 ; Matter of Hemiup, 3 Paige 305; 
 Woodson v. Palmer, 1 Bail. Eq. 95; Lee v. Pindle, 12 Gill & J. 288; Clark 
 v. Reed, 11 Pick. 446 ; Tomlinson v. Ward, 2 Conn. 396 ; Stone v. Locke, 
 48 Maine 425 ; Brooks T. Byam, 2 Story 553 ; Gray . Gray, 15 Ala. 779. 
 Partial relief usually entitles the complainant to costs : Rough v. Marshall, 
 4 Bibb 567 ; Ilightower v. Smith, 5 J. J. Marsh. 542. Where there has 
 been an oppressive accumulation of costs, occasioned by the errors and im- 
 perfections of the complainant's proceedings, the court will relieve the de- 
 fendants from their payment : Blakeney v. Ferguson, 14 Ark. 460. 
 
 2 Though there is no rule that in every instance in which a defendant 
 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 plaintiff'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 dis- 
 missed without costs: Clowes v. Beck, 2 De G., M. & G. 731. 
 
 48
 
 754 ADAMS'S DOCTRINE OF EQUITY. 
 
 even where no tender can in strictness 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 subpoena, if for per- 
 formance of a decree, it was a contempt of another writ 
 also issued under the Great Seal, termed the writ of exe- 
 cution. 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 corpora- 
 tion by distringas and sequestration. The only differences 
 were, that an attachment for non-performance of a decree 
 was not, like an attachment on mesne process, a bailable 
 writ ; (n) that in the particular instance of a decree for de- 
 livering up an estate, the Court might effectuate its own 
 order by issuing a writ of assistance to the sheriff, com- 
 manding him to put the plaintiff in possession ; and that 
 on a decree for payment of money, the receipts under a 
 sequestration, though intended as a means of punishment, 
 might indirectly operate as a performance. 
 
 We have already seen that by the present orders of the 
 Court the two steps of attachment with proclamations and 
 writ of rebellion are abolished, and the process of con- 
 
 (l) Millington v. Fox, 3 M. & C. 35:2; Kelly v. Hooper, 1 N. C. C. 197. 
 [See Rucker . Howard, 2 Bibb 166.] 
 (m} 2 Dan. 1020. (n) Id. 1326.
 
 OF THE HEARING AND DECREE. 755 
 
 tempt ^reduced to attachment, serjeant-at-arms, [-#004-1 
 and sequestration. (0) 
 
 The same orders which effected this reduction have 
 also abolished the writ of execution, and have substituted 
 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 attach- 
 ment, and on default after arrest to sequestration, or if 
 the sheriff return " non est inventus" to an order at his 
 option, for an immediate sequestration or a serjeant-at- 
 arms, and if the decree is for delivering up 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. (p) 
 
 If the decree or order direct the payment of costs 
 alone, it is enforced by a subpoena for costs and a non-bail- 
 able attachment. But if the payment of other moneys be 
 also directed, the ordinary process will extend to the 
 whole, and a subpoena is unnecessary. If payment be 
 directed out of a fund or an estate, a subpoena does not 
 lie, but a sufficient proportion will be ordered to be 
 sold.(^) 1 
 
 The inefficacy of the process of contempt for compel- 
 
 (o) Supra, Appearance ; Answer. (p) Aug. 1841, x-, xiii., xv. 
 
 (q) 2 Dan. Ch. P. 1328. 
 
 1 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 di- 
 rected to be raised by sale or mortgage of a sufficient part of the estate : 
 Maudeuo c. Mandeno, 23 L. J. Ch. 511.
 
 756 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 Viet. c. 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- 
 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 Viet. c. 110, s. 18, it is directed that all 
 decrees and orders of Courts of equity, by which any sum 
 of money or costs shall be payable to any person, shall 
 have the effect of judgments at law. And by sect 20 of 
 the same act, and the General Orders of May, 1839, a 
 party to whom payment of any sum of money or costs 
 has been ordered may enforce it, not only indirectly by 
 sequestration, but by direct writs of 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) 1 
 
 (r) 2 Dan. 1050. (s} Ibid. 1020. 
 
 1 It seems now settled, after some doubts, that an action may be main- 
 tained upon a decree in equity for the payment of a specific sum : Pen- 
 nington v. Gibson, 16 How. U. S. 65. See Evans v. Tatem, 9 S. & R. 252.
 
 OF THE HEARING AND DECREE. 757 
 
 AYhere none of these remedies can be adopted, as when 
 the act ordered requires the personal agency of the de- 
 fendant, the Court is remitted to the process of contempt, 
 and can only enforce its decree by imprisonment and 
 sequestration. 1 
 
 By the eighty-third of the new Equity Rules in Pennsylvania, it is pro- 
 vided that final process for the execution of any decree may, if the decree 
 be solely for the payment of money, be by a writ of execution in the 
 form used in the same Court in suits at common law in actions of debt or 
 assumpsit. 
 
 1 By the 8th Rule in Equity of the United States Courts, it is provided 
 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 Cir- 
 cuit 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 "execu- 
 tion of a conveyance of land, or the delivering up of deeds, or other docu- 
 ments, 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 ser- 
 vice to take notice ; and upon affidavit filed in the Clerk's office, that the 
 same has not been complied with within the prescribed time, the clerk 
 shall issue a writ of attachment against the delinquent party, from which, 
 if attached thereon, he shall not be discharged, unless upon full compli- 
 ance 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. In Pennsyl- 
 vania, see Rule Ixxxiii.
 
 758 ADAMS'S DOCTRINE OF EQUITY. 
 
 [*396] *CH AFTER VIII. 
 
 OF THE REHEARING AND APPEAL. 
 
 THE next subject for consideration, after the regular 
 conclusion of a suit by decree is the jurisdiction for alte- 
 ration 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 proceed- 
 ings in the cause. 
 
 The first step after judgment is, as we have seen, the 
 giving out and settlement of the minutes. If the minutes 
 do not correspond with the judgment, the requisite altera- 
 tions are effected in the manner already pointed out. But 
 in order that the judgment itself may be impeached, 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 conclusive 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, (b) But after it has been reheard by the Chancel- 
 
 (o) 2 Dan. 1331. 
 
 (6) Brown v. Higgs, 8 Ves. 567.
 
 OF THE REHEARING AND APPEAL. 759 
 
 lor, it cannot, without special cause shown, be again re- 
 heard.^) 
 
 If the error complained of be a mere clerical slip, it 
 may *be rectified before enrolment on a common r^oo-r-i 
 petition, without the expense of a rehearing, (cc) 
 And if the order* itself has been made on motion, or on 
 ex parte petition irregularly presented, it is not the sub- 
 ject of rehearing, but may be discharged on an independ- 
 ent motion, (d) 1 In all other cases, a revisal or variation 
 before enrolment nrnst be effected by a petition or re- 
 hearing. 2 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 Chan- 
 cery, and can only be altered by an appellate jurisdic- 
 
 (c) Moss v. Baldock, 1 Phill. 118. 
 
 (cc) 45th Order of 1828 ; 2 Smith Ch. P. 14 ; Whitehead . North, Cr. & 
 P. 78. 
 
 (d] West v. Smith, 3 Beav. 306. 
 
 1 Gardiner, J., Gracie v. Freeland, 1 Comstock 236. 
 
 2 A rehearing is not a matter of right, but rests in the sound discretion 
 of the court : Daniel v. Mitchell, 1 Story 198 : Hodges v. N. E. Screw Co., 
 5 Rhode Island 9 ; Zinc Co. r. The Franklinite Co., 1 McCart. 309 ; Bru- 
 magim v. Chew, 4 Green 337. 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 circum- 
 stances 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 Dessaus. 596 ; Wilcox v. 
 Wilkinson, Cam. & Nor. 528 (538) ; s. c. 1 Murph. 11 ; Townshend p. 
 Smith, 1 Beas. 350. 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 or the original suit, has remained undistributed : Brandon v. 
 Brandon, 25 L. J. Ch. 896. See, further, post, note to page 399.
 
 760 ADAMS'S DOCTRINE OF EQUITY. 
 
 tion.(e) 1 If, therefore, either party desire a rehearing., 
 he should enter a caveat against enrolment, which will 
 stay it for twenty-eight days, and give him an opportunity 
 to apply for the purpose. But if he neglect this, and 
 the enrolment takes- place before an order to rehear has 
 been served, it cannot afterwards be vacated except on 
 special grounds of fraud, surprise, or irregularity. (/) 
 
 The appellate jurisdiction in equity is twofold; viz., 1. 
 In the King, whose conscience is ill-administered, and 
 who may issue a special commission pro re natd to recon- 
 sider his Chancellor's decree ;(g) and 2. In the House of 
 Lords, on petition to them as the supreme judicature of 
 the realm. 
 
 The latter of these -courses, a petition to the Lords, has 
 now altogether superseded the former ; but in the latter 
 part of the seventeenth century a vehement dispute re- 
 specting its validity arose between the Houses of Lords 
 and Commons, and it was contended that the appellate 
 jurisdiction in equity, like that on writs of error at common 
 law, could only be exercised under a reference from the 
 Crown, *and not on a mere petition to the Lords. 
 The dispute 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 contest, though in terms 
 
 (e) McDertnott v. Kealj, 1 Phill. 267 ; Sheehy v. Muskerry, 7 Cl. & F. 
 1 ; Andrews v. Walton, 8 Id. 457. 
 
 (/) Hughes v. Garner, 2 Y. & 0. 335 ; Sheehy v. Muskerrry, 7 Cl. & F. 
 22 ; Dearman v. Wych, 4 M. & C. 550. 
 
 (g) Kale's Jurisdiction of the House of Lords, Pref. xxxix., and p. 186. 
 
 1 Ducker . Belt, 3 Md. Ch. 13 ; Hitch v. Fenby, 4 Id. 190 ; Simpson v. 
 Downs, 5 Rich. Eq. 421 ; Robinson v. Lewis, 2 Jones Eq. 25. See also 
 Hurlburd v. Freelove, 3 Wise. 537.
 
 OF THE REHEARING AND APPEAL. 761 
 
 i 
 
 a compromise, has been practically an abandonment of the 
 claim, (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. Dal- 
 mahoy. 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 As- 
 sembly where the King is highest in the royal estate, and 
 where the last resort of judging on writs of error and 
 appeals in equity is fixed. It was for a time quieted by 
 a prorogation; but at the re-assembling of Parliament it 
 was resumed, and a resolution was passed by the Com- 
 mons, " that whosoever 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 Par- 
 liament, after the next prorogation in February, 1677, the 
 Commons appear to have tactily abandoned the contest; 
 and although their previous resolution was not in terms 
 rescinded, the jurisdiction has been since exercised with- 
 out dispute, (h] The jurisdiction is confined to appeals 
 in equity, and does not extend either to the administra- 
 
 (gg) Hargrave's Pref. to Kale's Jurisdiction, p. xcix.-cxxiv. 
 (h) Bale's Jurisdiction of Lords ; Hargrave's Preface, cxxxv.-clxvii., 
 Macqueen's Practice 70-92.
 
 762 ADAMS'S DOCTRINE OF EQUITY. 
 
 r*3QQl ^ ye P ower m l unac y? or to *the jurisdictions con- 
 ferred by statute, unless where such appeal is ex- 
 pressly given, or where the statutory jurisdiction is a mere 
 extention 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 
 ) 1 But on an appeal, which is a resort to a superior 
 
 (i) Bignold . Springfield, 7 01. & F. 71. 
 
 (7c) Wright v. Pilling, Free. Cha. 496 ; Lovell v. Hicks, 2 Y. & C. 472 ; 
 Herring v. Clobery, Cr. & P. 251 ; Roberts v. Marchant, 1 Phill. 371. 
 
 1 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 tes- 
 timony 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 proper diligence and inquiry 
 have discovered : Hunt v. Smith, 3 Rich. Eq. 465 ; Thompson v. Edwards, 
 3 W. Va. 659 5 Hill v. Bowyer, 18 Gratt. (Va.) 364 ; Kemp v. Mitchell, 29 
 Ind. 163. 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 example, 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 evidence, 
 are mainly governed by the same considerations that apply to cases where 
 leave is asked, after publication of testimony, and before the hearing, to 
 file a supplemental bill, to bring forward such new evidence ; or where, 
 after a decree, leave is asked to file a bill of review on like ground : Daniel 
 v. Mitchell, 1 Story 198. See, also, Baker v. Whiting, Id. 218. 
 
 Where a party has had it in his power to ascertain the importance of
 
 OF THE REHEARING AND APPEAL. 763 
 
 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. (I) 1 
 
 (I) Eden v. Lord Bute, 1 B. P. C. 465. 
 
 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 deci- 
 sion, although the justice of the case might be promoted by it : Prevost . 
 Gratz, Peters C. C. 365 ; see, also, Cock v. Evans, 9 Yerg. 287 ; Cleland v. 
 Gray, 1 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 de- 
 cree, it will be only when the confessions are of the most full and direct 
 character, and are proved by disinterested testimony, and not susceptible 
 of different interpretations : Daniel v. Mitchell, ubi supra. 
 
 In Hinson v. Pickett, 2 Hill Ch. 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 de- 
 signed to contradict the witnesses examined by the adverse party : Wai- 
 worth, Ch., Dunham . Winans, 2 Paige 24; Baker v. Whiting, ubi supra. 
 McDougald v. Dougherty, 39 Ala. 409 ; Nisbett v. Cautrell, 32 Ga. 294 ; 
 Powell v. Batson, 4 W. Va. 610. 
 
 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 un- 
 conscientious advantage : Simms v. Smith, 11 Ga. 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. Xor will the court grant a rehearing where the case has been 
 remitted to the court below : Peck v. Sanderson, 18 How. U. S. 42. 
 
 1 An appeal from a final decree opens up the whole merits for investi- 
 gation 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 appeal 
 from a decree upon a cross-bill opens the whole case presented both by 
 the original and cross-bill ; though there be no appeal from the decree dis- 
 missing the original : Woodrum v. Kirkpatrick, 2 Swan 218. 
 
 None but parties to the decree are entitled to take an appeal : Mckiin v.
 
 764 ADAMS'S DOCTRINE OF EQUITY. 
 
 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, (m) The petition is 
 signed by two counsel, who, in the case of an appeal, must 
 have been either counsel in the cause below, or must at- 
 tend as counsel on the appeal ; and must be accompanied 
 by a certificate that in their opinion there is a reasonable 
 cause for rehearing or appeal, (n) It is not necessary, 
 though sometimes convenient, that the petition should 
 state the ground of objection, (o) 1 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, (p] containing a narrative of facts, and a sum- 
 mary of the reasons on which he relies, and accompanied 
 by an appendix of evidence. 
 
 r*40(Vl or< ^ er ^ warran t 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 
 
 (m) 50th Order or 1841 ; Macqueen 131. 
 (n) Wood v. Milner, 1J. & W. 616. 
 (o) Giffard v. Hort, 1 Sch. & L. 398. 
 (p) 2 Dan. 1367. 
 
 Mason, 3 Md. 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 undisposed of : 
 Dougherty v. Walters, 1 Ohio St. N. S. 201. 
 
 1 A petition for rehearing should state the grounds on which it is asked : 
 Wiser v. Blachly, 2 Johns. Ch. 488.
 
 OF THE REHEARING AND APPEAL. 765 
 
 excluded, f^) 1 A decree made on default of appearance at 
 the hearing, is also incapable of being appealed from or 
 reheard, unless a special ground be shown for indul- 
 gence.^) And in cases where the bill has been taken 
 pro confesso, the defendant, though he may obtain a re- 
 hearing, must waive any objection to the pro confesso 
 order, and must submit to pay such costs as the Court 
 shall direct, (s) If the costs of suit are in the nature of 
 relief, a miscarriage respecting them will be a sufficient 
 ground of complaint ; e. y., where they are improperly 
 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 question of 
 costs. (t) 2 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, (u) 
 
 With respect to costs of a rehearing or appeal, it is 
 held, that whatever be its result, no costs can be given 
 against the respondent, if he confines himself to supporting 
 the original decree ; (v) but that in the event of an affirm- 
 ance or a trifling variation, they will generally be given to 
 
 (5) Wood v. Griffith, 1 Meriv. 35, 270 ; Woodmason t>. Doyne, 10 Cl. 
 & F. 22 ; 2 Dan. 1331. 
 
 (r) Booth v. Creswicke, Cr. & P. 361 ; 44th Order of August, 1841 ; 
 Stubbs v. , 10 Yes. 30. 
 
 (*) 89th Order of 1845 ; 1 Dan. 480. 
 
 (<) 2 Dan. 1334. 
 
 (u) Attorney-General v. Butcher, 4 Russ. 181 ; Taylor v. Southgate, 4 
 M. & C. -.03 ; Angell . Davis, Id. 360 ; Chappell v. Purday, 2 Phill. 227; 
 2 Dan. 1334-5. 
 
 (v) 2 Dan. 1355. 
 
 1 Coster v. Clarke, 3 Edw. Ch. 405. 
 
 * See Travis r. Waters, 1 Johns. Ch. 48 : Eastburn v. Kirk, 2 Id. 317.
 
 766 ADAMS'S DOCTRINE OF EQUITY. 
 
 him. 1 And in the case of an appeal, which is a step 
 beyond the ordinary procedure in a cause, they will some- 
 times be so given, though, on a rehearing below, no 
 *costs would have been given, or they would 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 pro- 
 ceedings under the original decree. It does, not, however, 
 follow that they will be saved during its pendency ; for it 
 is presumed until reversal that the decree4s 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 ac- 
 companied, in a case of rehearing, by an order to advance 
 the cause, or in the case of an appeal, by a requirement 
 that a similar order be applied for in the House of Lords, (w) 
 
 (w) Storey v. Lennox, 1 M. & C. 685 ; Corporation of Gloucester v. 
 Wood, 3 Hare 150; 1 Ph. 493; Garcias v. Ricardo, Id. 498; Drake v. 
 Drake, 3 Hare 523 ; 2 Smith, C. P. 74. 
 
 1 Costs on appeal are now regulated by statute in most of the United 
 States. Where there are no special provisions on the subject, the general 
 rule still appears to be to give the appellant no costs on the reversal of 
 the decree: Evertson v. Booth, 20 Johns. 499; Murray v. Blatchford, 2 
 Wend. 221 ; Burrows v. Miller, 3 Bibb 77 ; see The Margaret v. The Con- 
 estoga, 2 Wall. Jr. 116; and to give the appellee his costs on affirmance : 
 .Mowattf. Carow, 7 Paige 328; Boyd v. Brisban, 11 Wend. 529; March 
 r. Thompson, 1 Litt. 310.
 
 OF THE CROSS-BILL. 767 
 
 *CH AFTER IX. [*402] 
 
 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 determine 
 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 de- 
 fect. 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. 1 This 
 
 1 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 
 mutters 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. Ch. 250. But see, in general, Sterry v. Arden, 1 Id. 62 ; and 
 White 0. Buloid, 2 Paige 164, wherein the subject of cross-bills is dis- 
 cossecL 
 
 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., M. 
 & G. I ; 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 shown : Josey v. 
 Rogers, 13 Ga. 478 ; Sterry v. Arden, 1 Johns. Ch. 62 ; Story Eq. PI. <j 
 395. 
 
 By the Rules in Eq. U. S., No. IxxiL, it is provided that where a de-
 
 768 ADAMS'S DOCTRINE OF EQUITY. 
 
 imperfection may arise either from cross relief or disco- 
 very being required by the defendants, or from the exist- 
 ence of litigation between co-defendants. 1 In either case 
 it is remedied by one or more cross-bills, filed by one or 
 
 fendant in equity files a cross-bill for discovery only against the plaintiff 
 in the original bill, the defendant in the original bill shall first answer 
 thereto, before the original plaintiff shall be compellable 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 must take steps to ob- 
 tain an answer, make an issue and have a hearing, at the same time with 
 the original bill : Reed v. Kemp, 16 111. 445. An answer to a cross-bill is 
 substantially a replication to an original bill : Whyte v. Arthur, 2 Green 
 (N. J.) 521. 
 
 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 injunction ob- 
 tained on the bill, should be regarded by him pro hac vice, as amended : 
 Nelson v. Dunn, 15 Ala. 501. 
 
 In Pennsylvania (Rule xli.) cross-bills for discovery only are abolished. 
 
 An original and a cross-bill make but one suit, and when the original is 
 dismissed, the dismissal carries with it the cross-bill : Eldcrkin v. Fitch, 2 
 Carter (Ind.) 90 ; Cockrell v. Warner, 14 Ark. 346 ; see also, Randolph's 
 Appeal, 06 Penn. St. 178. So when a question raised by a bill has been 
 adjudicated, it cannot be reheard upon cross-bill and answer: Barker v. 
 Belknap's Estate, 39 Verm. 168. And on the other hand, where a defend- 
 ant files a cross -bill founded on matters clearly cognisable in equity, the 
 cross-bill will supply any defect in jurisdiction: Id. If the original bill 
 is without equity, or if it is inconsistent with the answer, the cross-bill 
 cannot be sustained : Dill v. Shanan, 25 Ala. 694. New parties cannot be 
 introduced by a cross-bill: Shields v. Barrow, 17 How. U. S. 130 contra, 
 in 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 purposes 
 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 ; affirmed 3 De G., M. & G. 80. 
 
 1 See Talbot v. McGee, 4 Monr. 375; Anderson v. Ward, 6 Id. 419 ; Ed- 
 dleston v. Collins, 17 Jur. 331 ; 3 De G., M. & G. I.
 
 OF THE CROSS-BILL. 
 
 more of the defendants against the plaintiff., and against 
 such of their co-defendants, as the cross relief may affect. 1 
 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 pleajPto* darrein continuance, where a new 
 defence arises after answer ; but not for the purpose of 
 indirectly altering the answer itself. (#) 2 *The r^jno-i 
 proper frame of a cross-bill is, that it should state 
 the original bill and the proceedings thereon, and the 
 rights of the party exhibiting the bill, which are neces- 
 sary to be made the subject of cross litigation, on the 
 ground on which he resists the claims of the plaintiff in 
 the original bill, if that is the object of the new bill. 3 But 
 
 (a) 1 Dan. 565. 
 
 1 Armstrong . Pratt, 2 Wise. 299. 
 
 2 Miller v. Fenton, 11 Paige 18 ; Taylor v. Titus, 2 Edw. Ch. 135 ; White 
 v. Bullock, 3 Id. 453 ; Graham . Tankersley, 15 Ala. 634 ; Draper v. Gordon, 
 4 Sandf. Ch. 210 ; Andrews v. Hobson, 23 Ala. 219 ; Lambert v, Lambert, 
 52 Maine 544 ; Pearson v. Darrington, 32 Ala. 274. 
 
 3 A cross-bill is a matter of defence. It cannot introduce new and dis 
 tinct matter not embraced in the original suit, and, if it does so, no decree 
 can be founded on those matters: Galatian v. ErwSn, Hopk. 48 5 s. c. 8 
 Cowen 361 ; May v. Armstrong, 3 J. J. Marsh. 262 ; Daniel v. Morrison's 
 Ex'rs., 6 Dana 186 ; Fletcher v. Wilson, 1 S. & M. Ch. 376 ; Draper r. 
 Gordon, 4 Sandf. Ch. 210 ; Josey v. Rogers, 13 Ga. 478 ; Slason 'v. Wright, 
 14 Term. 208 ; Rutland v. Paige, 24 Id. 181 ; Draper v. Gordon, 4 Sandf. 
 Ch. 210 ; Cross v. De Valle, 1 Wall. S. C. 14 ; Hurd v. Case, 32 111. 45 ; 
 Homer v. Hanks, 22 Ark. 572. 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 Underhill r. 
 Van Cortlandt, 2 Johns. Ch. 339, 355. So, though the allegations of a 
 cross-bill must relate to the subject-matter, it is not restricted to the issues 
 of the original bill : Nelson v. Dunn, 15 Ala. 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 
 
 49
 
 770 ADAMS'S DOCTRINE OF EQUITY. 
 
 a cross-bill being generally 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 juris- 
 diction of the Court, (^i) 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 the 
 time for amendment has elapsed, it may be rectified by a 
 supplemental bill, or by a bill in the nature of supplement, 
 the character of which bills will be considered under the 
 head of imperfections of the third class. 
 
 (6) Mitf. 80-83 ; Farquharson v. Seton, 5 Russ. 45; Cottingham v. Lord 
 Shrewsbury, 3 Hare 627 ; Sanford v. Morrice, 11 Cl. & F. 667. 
 
 bar, it is not obnoxious to the objection of introducing new matter into the 
 suit: Josey u. Rogers, 13 Ga. 478. 
 
 A defendant, however, cannot file a cross-bill where his rights are fully 
 protected by his answer: Morgan v. Smith, 11 111. 194. A plaintiff in a 
 cross-bill is not allowed to contradict his answer to the original bill. If ho 
 has made a mistake as to the facts in his answer, the only mode of cor- 
 recting it is by application for leave to amend the answer, or file a supple- 
 mental one, and not by the exhibition of a cross-bill : Graham v. Tankersley, 
 15 Ala. 634; Jackson v. Grant, 3 Green (N. J.) 145. 
 
 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 ; 3 
 DeG., M. &G. 1. 
 
 Evidence taken on the cross-bill, where it is properly brought, may be 
 used in the original suit; but where the cross-bill makes a new case, evi- 
 dence 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 Metcalf 104 ; Nelson v. Dunn, 15 Ala. 501 ; 
 Lambert v. Lambert, 52 Maine 544. 
 
 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. Demurrer will lie to a bill called a cross-bill, if it 
 is not really so: Moss v. Anglo Egyptian, &c., Co., L. R. 7 Chan. 108.
 
 OF BILLS OF REVIVOR. 771 
 
 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- 
 viver, 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 person 
 before the Court by or against whom it can, either in whole 
 or in part, be prosecuted. They are technically called 
 abatements, and are cured by a bill of revivor, or in the 
 nature of revivor. The events which cause such abate- 
 ments are, the death of any litigant whose interest or 
 liability does not either determine on death or survive to 
 some other litigant, and the marriage of a female plain- 
 tiff or co-plaintiff. Upon the marriage of a female defend- 
 ant the suit does not abate, *but the husband [-#404-1 
 must be named in the subsequent proceedings. 
 And if a female plaintiff marries, pending a suit, and after- 
 wards, 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 marriage, (c) 1 
 
 (c) Mitf. 56-60. 
 
 1 See on the subjects of Bills of Revivor, &c., Story Equity PL, 354, et 
 seq. ; Boynton v. Boynton, 1 Foster 246. By the rules of the Courts of 
 Equity of U. S., No. Ivi., it is provided, that where a suit of equity shall 
 become abated by the death of either party, the same may be revived by 
 a bill of revivor, or in the nature of revivor, which bill may be filed at 
 any time ; and upon suggestion of the facts, a subpoena shall issue, requir. 
 ing 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 ajso provided by Rule 
 in Equity U. S., No. Ivii., 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 cir-
 
 772 ADAMS'S DOCTRINE OF EQUITY. 
 
 It will be observed, that in order to cause an abatement 
 it is essential that the person dying be a litigant; and 
 therefore, if he be not named a party to the suit, or if, 
 being named, he die before appearance, the suit is not 
 abated, but non-existent, and must be recommenced by 
 original bill against his representative, (d) 
 
 It is also essential that his interest or liability be such 
 as does not either determine by his death, or survive to 
 another litigant. For if it determine on his death, there 
 is no such abatement as can interrupt the suit against 
 the remaining parties, although if he be the only plaintiff, 
 or the only defendant, there will necessarily be an end of 
 litigation. If it survive to another litigant, and the cir- 
 cumstances 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 j or if it be by or against husband 
 and wife, in right of the wife, and the husband dies under 
 circumstances which admit of no demand by or against 
 
 (d) Crowfoot v. Mander, 9 Sim. 396. 
 
 cumstances may require it. In Pennsylvania it is provided, by Rule liv., 
 that whenever the circumstances are such as to require a bill of revivor, 
 supplemental bill, or bill in the nature of either or both, or where addi- 
 tional or different parties are required to be joined, the same shall be 
 made by way of amendment or addition to the original bill, and copies of 
 such amendments or additions, being served on the parties to the original 
 bill or their counsel on the record, shall entitle the plaintiff to proceed as 
 on an original bill, after service. See, also, Foster v. Burem, 1 Heisk. 
 (Tenn.) 783. 
 
 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. P1. T 
 2 371, &c.
 
 OF BILLS OF REVIVOR. 773 
 
 his representatives ; or again, if a bill be filed by several 
 creditors, on behalf of themselves and all other creditors, 
 and one of the co-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 hus- 
 band *suing in his wife's right, the widow does p^n-- 1 
 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 abate- 
 ment of the suit, and makes a bill of revivor necessary 
 against the wife, but if she be sued in auter droit a differ- 
 ent rule appears to prevail. (/) A decree on a bill of 
 interpleader may terminate the suit as to the plaintiff, 
 though the litigation may continue between the defend- 
 ants by interpleader, and in that case, the cause may pro- 
 ceed 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-plain- 
 
 (e) Mitf. 59 ; [Story Eq. PI., \ 357, &c.] 
 
 (/) White on Supplt. 168 ; 1 Dan. Ch. P. 169 ; 2 Id. 1418. 
 
 (g) Mitf. 60.
 
 \ 
 
 774 ADAMS'S DOCTRINE OF EQUITY. 
 
 tiff, they are stayed altogether ; on the death of a defend- 
 ant they afre stayed as to him. And in order to set them 
 again in motion, the suit must be revived by order or 
 decree. 
 
 For- the purpose of obtaining such order or decree it is 
 requisite that a new bill be filed, stating the proceedings 
 in the suit, the abatement, and the transmission of the 
 interest or liability, and praying that the suit and pro- 
 ceedings may be revived. If the transmission is by act 
 of law, viz., to the personal representative or the heir of 
 a deceased party, or to the husband of a married plaintiff, 
 the bill is termed a bill of revivor; and unless the defend- 
 ant shows cause against it by demurrer or plea, within 
 a lifted time, an Border to revive is made.(/^) 
 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 hearing to revive the 
 suit.^') 1 The bill, however, though termed an original 
 bill in respect of the want of privity between the original 
 and new defendants, is framed like a bill of revivor, and 
 will so far have the same effect, that if the validity of the 
 transmission be established, the same benefit may be had 
 of the former proceedings. (#) 
 
 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. (7) 
 
 (h) Pruen v. Lunn, 5 Russ. 3 ; Langley v. Fisher, 10 Sim. 349 ; Orders 
 of May, 1845, 61, 62; Mitf. 69, 76, 78. 
 (i) Folland v. Lamotte, 10 Sim. 486. 
 (ft) Mitf. 71-97. (1) Mitf. 69, 70. 
 
 1 See Douglass v. Sherman, 2 Paige 358 ; Slack v. Walcott, 3 Mason 508 ; 
 Story Eq. PL, \ 379 ; Ridgeley v. Bond, 18 Md. 433.
 
 OF BILLS OF REVIVOR. 775 
 
 The liability to abatement, and the consequent right 
 of revivor, are not limited to any 'particular stage of the 
 suit. 1 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 certified 
 before abatement, so as to constitute in equity a judg- 
 ment debt.(w) 2 
 
 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 de- 
 fendant's remedy is to move that he may do so within a 
 limited *time, or that the bill may be dismiss- 
 ed.(w) 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 de- 
 fendant may revive, (o) 3 
 
 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 
 as is requisite to show the right to revive, (p] But it 
 
 (m) Andrews v- Lockwood, 15 Sim. 153. 
 
 (n) 1 Smith C. P. 659 ; Lee v. Lee, 1 Hare 617; Orders of May, 1845, 63. 
 
 (o) Mitf. 79 : Upjohn v. Upjohn, 4 Beav. 246. 
 
 (p) 49th Order of August, 1841 ; Griffith v. Ricketts, 3 Hare 476. 
 
 1 See Peer v. Cookerow, 2 Beas. 136 ; 1 McCart. 361. 
 
 2 See Travis v. Waters, 1 Johns. Ch. 85. 
 
 8 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.
 
 776 ADAMS'S DOCTRINE OF EQUITY. 
 
 recapitulates it as the statement of the original bill, and 
 not as matter of substantive averment ; nor can such 
 statement be contravened by the defence further than is 
 done by the answers to the original bill, (q) It then states 
 the original prayer, of relief, the proceedings which have 
 taken place, and the event which has caused abatement, 
 and prays that the suit may be revived. 
 
 In the case of a pure bill of revivor no answer is 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 
 original 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 supple- 
 mental also, and if assets be not admitted, requires a 
 hearing and decree for account. 
 
 On an original bill in the nature of a revivor, a decree 
 is as we have seen the object sought, and the subpoena 
 therefore requires an answer ; and if the original bill be 
 unanswered, it asks an answer to that also. 
 
 If a suit becomes abated, and the rights of the parties 
 
 r*4-081 * are a ff ec ^ e( ^ D 7 an y event, other than that which 
 causes the abatement, e. g., by a settlement, it is 
 not sufficient to file a mere bill of revivor, although such 
 a bill might be adequate for merely continuing the suit, 
 so as to enable the parties to prosecute it. But the par- 
 ties must incorporate in their bill a supplemental state- 
 
 (q) Devaynes v. Morris, 1 M. & C. 213 ; Langley v. Fisher, 10 Sim. 345; 
 White 122.
 
 OF BILLS OF SUPPLEMENT. 777 
 
 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 with those which will be presently 
 considered under the head of pure supplemental bills, (r) 
 
 Defects in a suit subsequent to its institution may be 
 < aused. either in respect of parties by the transfer of a 
 former interest, or the rise of a new one, or in respect of 
 i ues 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. 1 
 
 Where a defect in respect of parties is caused by trans- 
 fer of an interest already before the Court, the transferree 
 may be joined in the suit by supplemental bill ; but the 
 necessity of so joining him depends on the character of 
 the transfer. 
 
 If the transfer is by act of the party, e. g., on assign- 
 
 (r) Mitf. 70, 71 ; Bampton r. Birchall, 5 Beav. 330 ; 1 Ph. 568. 
 
 "e on this subject, Story Eq. PL, ch. viii., $ 333, et seq. A supple- 
 mental 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 : Har- 
 rington v. Slade, 22 Barb. (N. Y.) 161. See also Wright v. Meek, 3 Iowa 
 47 -1 -. O'Hara v. Shepherd, 3 Md. Ch. 306. It is provided by the Rules in 
 Equity, U. S. Cts.. Xo. Ivii., that whenever any suit in equity shall become 
 defective from any event happening after the filing of the bill (as, for ex- 
 ample, 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 certain time limited. 
 
 It is also provided by Rules in Eq. U. S., Xo. Iviii., that it shall not be 
 necessary in such bill to set forth any of the statements of the original 
 suit, unless special circumstances, may require it.
 
 778 ADAMS'S DOCTRINE OF EQUITY. 
 
 ment or mortgage, the general principle is, that an alien- 
 ation pendente lite cannot affect the remaining litigants. 
 And therefore, unless the alienation disable the party 
 from performing the decree, e. (/., by conveyance of a 
 legal estate or endorsement of a negotiable security, it 
 does not render the suit defective, nor the alienee a ne- 
 cessary party. But the alienee himself, if he claim an 
 interest, may add himself to the cause by supplemental 
 bill, or may present a petition to be heard with the cause, (s) 
 If it is necessary to bring the alienee before the Court, 
 
 PHOQ1 g effected by *a supplemental 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, acquiring his in- 
 terest pendente lite, is bound by the proceedings in the 
 suit, and depositions taken after the assignment, and be- 
 fore he became a party, may be used against him, as they 
 might have been used against the party under whom he 
 claims, (f) 
 
 If, on the other hand, the transfer be by act of law, as 
 on bankruptcy or insolvency, the rule as to alienation 
 pendente lite, does not apply; but the suit becomes defec- 
 tive for want of the assignees, (w) 1 If, therefore, the 
 bankrupt is a defendant, the plaintiff must either dismiss 
 his suit, and go in under the bankruptcy, or must add the 
 
 (s) Eade.s 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. Cleveland, 7 Paige 
 287.] 
 
 (0 Mitf. 73, 74. 
 
 (u) Hitchens v. Congreve, 4 Sim. 420 ; Lee 0. Lee, 1 Hare 621. 
 
 1 See on these distinctions. Sedgwick v. Cleveland, 7 Paige 290, accord.
 
 OF BILLS OF SUPPLEMENT. 779 
 
 by supplemental bill, praying the same relief 
 against them as might have been had agains.t the bank- 
 rupt;^-) and if the relief originally asked were payment 
 of money, he should further pray for liberty to prove 
 against the estate, (iv) If the bankrupt were a party, not 
 in respect of a liability, but in respect of an interest, the 
 assignees must of course be joined; and if the plaintiff 
 neglect to add them, they may themselves file a supple- 
 mental bill after notice to him of their intention, (x) If 
 the plaintiff be the party becoming bankrupt, he is placed 
 under an incapacity (permanent or temporary as the case 
 may be) of prosecuting the suit. And unless his as- 
 signees file a supplemental bill, and so take proceedings 
 to sustain the original suit, it would in strictness, after 
 the usual time, be dismissed with costs, for want of prose- 
 cution. But in cases where the bankrupt is the sole 
 plaintiff, the modern practice is, to order that it be dis- 
 missed without costs, unless within a limited time a sup- 
 plemental bill be filed, (y) 
 
 *The doctrine as to alienation by act of law is 
 also applicable where the interest of a plaintiff 
 suing /'// 1 1 n.fcr droit entirely determines by death or other- 
 wise, and some other person becomes entitled in the same 
 right; e. (/., where an executor or administrator becomes 
 entitled upon the determination of an administration 
 dura uli- minori cetate or pendefde lite, and in such cases 
 the suit may be added to and continued by supplemental 
 
 (v} Monteith r. Taylor, 9 Ves. 615. 
 
 (w] Ex pavte Thompson, 2 M. D. & D. 761 ; Thompson v. Derham, 1 
 Hare 358. 
 
 (z) Phillips r. Clark, 7 Sim. 231. 
 
 (y) Mitf. 66, 67 ; Lee v. Lee, 1 Hare 621 : Kilminster v. Pratt, 1 Id. 632 ; 
 Whitmore t?. Oxborrow, 1 Coll. 91.
 
 780 ADAMS'S DOCTRINE OF EQUITY. 
 
 ) The same rule was formerly applicable on the 
 death of the assignees of a bankrupt or insolvent; but it 
 is now enacted, that where such assignees are plaintiffs 
 no fresh bill shall be required, but the names of the new 
 assignees shall be substituted in the subsequent proceed- 
 ings.^) 1 
 
 In the case also of a plaintiff suing as the representa- 
 tive of a class, e. g., of creditors or legatees, a similar prin- 
 ciple is applied after decree. The plaintiff, until decree, 
 has the sole interest in the suit, and therefore on abate- 
 ment by his death, his personal representative can alone 
 revive. But, after a de.cree, 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, (b) 
 
 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, and 
 praying an independent decree. The reason of this is, 
 that the interest in respect of which he is introduced is 
 
 (z) Mitf. 64. 
 
 (a) 6 Geo. 4, c. 16, s. 67 ; 7 Geo. 4, c. 57, s. 26 ; Bainbrigge i?. Blair, 
 Younge 386 ; Man v. Ricketts, 7 Beav. 484. 
 
 (6) Houlditch v. Donegall, 1 S. & S. 491 ; Dixon v. Wyatt, 4 Mad. 392 ; 
 2 Dan. Ch. P. 1109. 
 
 1 The propriety of the distinction as to the character of bill to be filed 
 in the case" of the determination of the interest of the plaintiff suing in 
 auter droit, 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. PL, 340, in note.
 
 OF BILLS OF SUPPLEMENT. 781 
 
 not derived from any former litigant, and has not been 
 previously represented in the suit, so that he cannot be 
 bound by what has taken place, but is entitled to have 
 the entire case proved anew, and an independent decree 
 made. The instance most usually given of an interest of 
 this class, is that of an ecclesiastical *person sue- 
 ceeding to a benefice, of which the former holder 
 was before the court. The interest which such a person 
 holds -is obviously independent of the prior holder; and 
 therefore, if the claim is pursued against him, he must be 
 added to the suit by a bill, which though in some sense 
 supplementary, is in strictness original, and is called an 
 original bill in nature of supplement. On such a bill 
 a new defence may be made ; the pleadings and deposi- 
 tions 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 in- 
 duce the Court to make a similar decree, (c) 
 v j 
 
 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 inherit- 
 ance, and that, notwithstanding the general doctrine 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 nature of supple- 
 ment, because the remainderman makes title under no 
 previous litigant. But in respect of the rule enabling the 
 tenant in tail to represent the inheritance, it is so far 
 
 (c) Mitf. 73 ; Lloyd v. Johnes, 9 Ves. 54, 55 ; Attorney-General v. Fos- 
 ter, 2 Hare 81 5 13 Sim. 282.
 
 782 ADAMS'S DOCTRINE OF EQUITY. 
 
 treated as supplemental that the remainderman will be 
 bound by the previous proceedings, unless he can estab- 
 lish any special distinction between his own case and his 
 predecessors, (d) 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 interme- 
 diate tenant in tail has been born pending 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 Court, in suf- 
 fering the suit to proceed in its previous form, implies 
 that such tenant in tail, when brought before it, shall be 
 bound by the previous proceedings, (e) 
 
 The frame of an original bill in nature of 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 tlie new defend- 
 ant, 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 stat- 
 ing the contents of the original bill, as in an ordinary 
 case of supplement, coupled with an averment of their 
 correctness. (/) 
 
 Where a necessary party has been omitted at the com- 
 mencement of the suit, but the regular time for amend- 
 
 (d) Mitf. 63, 72; Lloyd v. Johnes, 9 Ves. 37. 
 
 (e) Giffard . Hort, 1 Sch. & L. 408 ; Lloyd v. Johnes, 9 Ves. 59. 
 
 (f) Attorney-General v. Foster, 2 Hare 81 ; Lloyd v. Johnes, 9 Ves. -'17.
 
 OF BILLS OF SUPPLEMENT. 783 
 
 ment has been allowed to pass, lie 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) l 
 
 Where a defect in the issue between the existing par- 
 ties 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 supplemen- 
 tal to the old. 2 If, therefore, it is meant to show a new 
 title in the plaintiff, it is inadmissible ; e. (/., where a party 
 having filed his bill as heir-at-law, afterwards, on his heir- 
 ship being disproved, purchased a title from his devisee ; 
 for the :H plaintiff must stand or fall by such title 
 as he had when his bill was filed. (K) If, again, * 
 it be merely new evidence of the original equity, it does 
 not appear necessary to have a supplemental bill. But 
 it seems that the proper course would be to move specifi- 
 cally for leave to examine witnesses on the new matter, 
 
 (g) Mitf. 61 : Jenkins v. Cross, 15 Sim. 76 ; [see OHara . Shepherd, 3 
 M.I. Ch. 306.] 
 
 (A) Tonkin v. Lethbridge, Coop. 43; Barfield v. Kelly, 4 Russ. 355; 
 Pritchard v. Draper, 1 R. & M. 191 ; Mutter v. Chauvel, 5 Russ. 42 ; Bamp- 
 ton i'. Birchall, 5 Beav. 330; 1 Phill. 568; [see Wright v. Vernon, 1 
 Drewry 68.] 
 
 1 So a complainant who has dismissed the bill against a defendant who 
 had appeared, if other of the defendants object that he is a necessary 
 party, is entitled to file a supplemental bill to bring him again before the 
 court : Wellesley v. Wellesley, 17 Sim. 59. 
 
 2 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 intro- 
 duced by way of supplement : Winn v. Albert, 2 Md. Ch. 42 ; Bank of 
 Kentucky v. Schuylkill Bank, 1 Pars. Eq. 222.
 
 784 ADAMS'S DOCTRINE OF EQUITY. 
 
 and to have their depositions read at the hearing, (i) or if 
 discovery is required, to file a supplemental bill for that 
 purpose alone. () 
 
 If the new matter be really supplemental, i. c., if, leav- 
 ing the original equity untouched, it varies the form in 
 which relief must be given, or creates the 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. (/., 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. (7) 
 
 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; 1 but if the 
 object of introducing them is to vary that case, so as to 
 produce two inconsistent statements, they are inadmissible 
 by way of supplement, and the plaintiff must obtain special 
 leave to amend. (m) 2 
 
 ({} Milner v. Harewood, 17 Ves. 148 ; Adams v. Dowding, 2 Madd. 53. 
 
 (k) Milner v. Harewood. 17 Ves. 148 ; Usborne v. Baker, 2 Madd. 379. 
 
 (1) Pin'kus . Peters, 5 Beav. 253 ; Malcolm v. Scott, 3 Hare 39 ; Nelson 
 v. Bridges, 2 Beav. 239 ; .Calton v. Carlisle, 5 Madd. 427 ; 2 Dan. Ch. P. 
 1490 ; Mitf. 326. 
 
 (m) Mitf. 55, 62; Colclough v. Evans, 4 Sim. 76; Crompton v. "Womb- 
 
 1 See Story Eq. PI., f 333 ; Barringer v. Burke, 21 Ala. 765 ; Gregory v. 
 Valentine, 4 Edw. Ch. 282 ; Hope v. Brinckerhoff, Id. 348. 
 
 2 But where the subject-matter and title remain the same, it is no ob-
 
 OF BILLS OF SUPPLEMENT. 78-3 
 
 *It has also been determined on an analogous 
 principle, that where the defendant was an infant 
 at the date of the original bill, so that DO discovery could 
 be obtained, the plaintiff might file a supplemental bill on 
 his coming of age, requiring him to answer those inter- 
 rogatories of the original bill, which were not originally 
 answered by him.(w) 
 
 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 recapitu- 
 lation, if the bill be original in the nature of supplement, 
 a substantive averment that the statement is correct, (o) 
 It then states the original prayer for relief, the proceed- 
 ings in the suit, and the supplemental matter ; and con- 
 cludes, if it be not for discovery alone, with the appropriate 
 prayer for relief. With respect to the parties against 
 whom process should be prayed, the principle w r hich 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 
 
 well, Id. 628 ; Attorney-General r. Fishmongers' Company, 4 M. & C. 9 ; 
 Wai ford r. Pemberton, 13 Sim. 442; Blackburn r. Staniland, 15 Id. 64. 
 
 (n) Waterford t. Knight, 9 Bligh X. S. 307 ; 3 Cl. & F. 270. 
 
 (o) 49th Order of May, 1841 : Tigers v. Lord Audley, 9 Situ. 72; Griffith 
 
 r. Kicketts, 3 Hare 476. 
 
 / 
 
 jection that a supplemental bill introduces matter which may vary the 
 relief to which the complainant is entitled : Ramy r. Green, 18 Ala. 771 : 
 Bank of Kentucky r. Schuylkill Bank. 1 Pars. Eq. 222. 
 50
 
 786 ADAMS'S DOCTRINE OF EQUITY. 
 
 defendants. Qt?) 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 intro- 
 duced, 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 
 r*/nn 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 in- 
 terest in the plaintiff alone, (q) 1 
 
 If the bill be not for discovery alone, the cause must 
 
 (p) Fallowes v. Williamson, 11 Ves. 306. 
 
 (q) Mitf. 75 ; Dyson v. Morris, 1 Hare 413 ; Jones v. Howells, 2 Id. 
 342 ; Holland v. Baker, 3 Id. 68. 
 
 1 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 sup- 
 plemental 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 
 original bill is filed, affecting the rights and interests of the original de- 
 fendants as represented on the record ; but they are not necessary parties 
 to a supplemental bill, where there may be a decree upon the supplemental 
 matter against the new defendants, unless the decree will affect the in- 
 terests of the original defendants ; nor are they necessary parties where 
 the supplemental bill is brought merely to introduce formal parties: Wil- 
 kinson 0. 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 supple- 
 mental bill is filed in the office : Morgan v. Morgan, 10 Ga. 297. 
 
 A supplemental bill, however, is to be considered as part of the original 
 bill ; and if, upon the whole record, the complainant is entitled to relief, 
 it will be decreed him : Cunningham v. Rogers, 14 Ala. 147.
 
 OF BILLS TO EXECUTE A DECREE. 787 
 
 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 effect. 1 For example, such a bill may be 
 filed where an omission has been made in consequence 
 of all the facts not being distintly on the recorder) or 
 where, owing to the neglect of parties to proceed under 
 a decree, their rights have become embarrassed by sub- 
 sequent events, and a new decree is necessary to ascertain 
 them ; (s) or where a decree has been made by an inferior 
 Court of equity, the jurisdiction of which is not equal to 
 enforce it. (t) And a bill of the same nature is sometimes 
 exhibited by a person who was not a party, nor claims 
 under a party, to the original decree, but claims in a simi- 
 lar interest, or is unable to obtain the determination of his 
 own rights until the decree is carried into execution, (w) 
 
 (r) Hodson c. Ball, 1 Ph. 181. 
 
 (*) Mitf. 95. (t) Id. 96. 
 
 (u) Id. 95 ; 2 Dan. Ch. P. 1405 : Oldham r. Eboral, 1 Coop. Sel. Ca. 27. 
 
 1 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 direc- 
 tions 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. Shepherd, 3 Md. 
 Ch. 306.
 
 788 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 pro- 
 
 r*416~l 
 
 J ceedings, so as to enable the Court to give effect 
 
 to its decision. If it goes beyond this, it is in truth a 
 bill to impeach the decree, and is subject to the restric- 
 tions which will be hereafter considered 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 application, to examine the decree, 
 and if it be unjust, to refuse enforcement, (w) 1 
 
 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 by 
 Lord Redesdale, termed " bills to suspend or avoid the 
 operation of decrees." They appear, however, to be 
 adapted only to contingencies arising from public events ; 
 and as the instances of them which are to be found in the 
 books, originated chiefly in the embarrassments occasioned 
 
 (v) Hodsdn 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 Md. Ch. 
 306.] 
 
 (w) Mitf. 96 ; 2 Dan. Ch. P. 1407 ; Hamilton v. Houghton, Bligh 0. S. 169. 
 
 1 In certain cases a defendant has the right, after decree, to file a supple- 
 mental bill r to bring new and necessary parties before the court : Lee v. 
 Lee, 17 Jur. 272 j affirmed, 17 Jur, 607.
 
 OF BILLS OF REVIEW. 789 
 
 by the Great Rebellion, they are to be considered with 
 much caution, (x) 
 
 A bill of review is used to procure the reversal of a de- 
 cree after signature and enrolment. It may be brought 
 upon error of law apparent on the decree, or on occurrence 
 or discovery of new matter. 1 In the former case the bill 
 may be filed without leave of the Court, but the error 
 complained of must not be mere error in the decree, as 
 on a mistaken judgement, 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 infant, (y) [-#417-1 
 Errors in form only, though apparent on the 
 face of the decree, and mere matters of abatement, seem 
 not to have been considered sufficient ground for review. (z) 
 
 (x] Mitf. 74 ; 2 Dan. Ch. P. 1408. 
 
 (y) Mitf. 84 ; Perry v. Phelips, 17 Yes. 179 ; [Ross v. Prentiss. 4 McLean 
 106; Seguin v. Maverick, 24 Texas 534 ; Bartlett v. Fifield, 45 N. H. 81.] 
 
 (z) Mitf. 85 ; [Guerry v. Perryinan, 12 Ga. 14 ; Dexter v. Arnold, 5 Ma- 
 son 312.] 
 
 1 See on this subject, Story Eq. PI., | 414 5 Kiddle's Estate, 19 Penn. 
 St. 433 ; Creed T. Lancaster Bank, 1 Ohio St. N. SL 1 ; Ducker r. Belt, 3 
 Md. Ch. 13 : U. S. v. Samperyac, 1 Hempstead 118 ; Sloan v. Whiteraan, 6 
 Ind. 4:)4 : Rush r. Madeira, 14 B. Monr. 212 ; Clapp . Thaxton, 7 Gray 
 384 ; Thompson v. Goulding, 5 Allen 8L 
 
 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 may be founded : Whiting v. Bank 
 of U. S., 13 Peters S. C. 6; Dexter v. Arnold, 5 Mason 311 ; Webb . 
 Pell, 3 Paige 368 ; Story Eq. PL, g 407 ; Riddled Estate, 19 Penn. St. 433.
 
 790 ADAMS'S DOCTRINE OF EQUITY. 
 
 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 produced or used 
 by the applicant at the time when the decree was made ; 
 and showing also that such new matter is relevant and 
 material, either as evidence of matter formerly in issue, 
 or as constituting a new issue, and is such as, if previ- 
 ously 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. (&) 1 
 
 (a) Mitf. 84-87; Partridge v. Usborne, 5 Euss. 195; Hungate v. Gas- 
 coyne, 2 Ph. 25 ; [Ross v. Prentiss, 4 McLean 106,] 
 
 (&) Hodson v. Ball, 11 Sim. 456; 1 Ph. 177; Toulmin . Copland, 4 
 Hare 41 ; [Simpson v. Watts, 6 Rich. Eq. 364 ; Thomas v. Rawlings, 34 
 Beav. 50 ; Winchester v. Winchester, 1 Head. 460.] 
 
 1 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 mouths 
 prior to the filing of his bill: Hitch v. Fenby, 4 Md. Ch. 190; Dexter v. 
 Arnold, 5 Mason 312; Ridgeway v. Toram, 2 Md. Ch. 303; Simpson v. 
 Watts, 6 Rich. Eq. 364; Stevens v. Dewey, 1 Williams (Verm.) 638. All 
 the parties to the original decree, or their representatives, 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 io impeach the 
 character of witnesses examined in the original suit. Nor can it be main- 
 tained where the newly discovered evidence is merely cumulative, and re- 
 lates to a collateral fact in the issue, not of itself, if admitted, by any 
 means decisive or controlling j such as the question of adequacy of price, 
 when the main question was, whether a deed was a deed of sale or a mort- 
 gage : Southard v. Russell, 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. PL, \ 414; Dexter v. Arnold, 5 Mass. 312; Livingston 
 v. Hubbs, 3 Johns, Ch. 124 ; Ridgeway v. Toram, 2 Md. Ch. 303.
 
 OF BILLS OF REVIEW. 791 
 
 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 review 
 on error apparent can be brought after such affirmance. 1 
 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 ; 2 and after a demurrer 
 to a bill of review has been allowed, a new bill of review 
 on the same ground cannot be brought, (c] 
 
 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- "- 
 per time all that the decree commands. (d} z 
 
 (c) Mitf. 88. (d) Ibid ; Partridge c. Usborne, 5 Russ. 195. 
 
 1 Where a case is decided by an Appellate Court, and 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 i?. Russell. 
 16 How. U. S. 547. 
 
 Xor 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 pur- 
 pose : Southard v. Russell, ut supra. 
 
 J As to the time within which a bill of review must be brought, see U. S. 
 r. Siuiijicryac, 1 Hemp. 118; Center 0. Pratt, 9 Md. 67; Creath v. Smith. 
 20 Missouri 113. 
 
 3 The objection that the general decree has not been obeyed or performed 
 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. Rison, 20 Ala. 463. 
 
 In Alabama, the chancellor has the power under the statute of that
 
 792 ADAMS'S DOCTRINE OF EQUITY. 
 
 In a bill of this nature it is necessary to state the 
 former bill, and the proceedings thereon ; the decree and 
 ,the point in which the party exhibiting the bill of review 
 conceives himself aggrieved by it, and the ground of law 
 or the new matter upon which he seeks to impeach it ; 
 and if the decree is impeached on the latter ground, it 
 seems necessary to state in the bill the leave obtained to 
 file it, and the fact that the new matter has been dis- 
 covered since the decree was made. 1 It has been doubted 
 whether this last statement is traversable after leave has 
 been given to file the bill. The bill may pray simply 
 that the decree may be reviewed and reversed in the 
 point complained of, if it has not been carried into execu- 
 tion. If it has been carried into execution, the bill may 
 also pray the further decree of the Court to put the party 
 complaining of the former decree into the situation in 
 which he would have been if that decree had not been 
 executed. If the bill is brought to review the reversal of 
 a former decree, it may pray that the original decree may 
 stand. The bill may also, if the original suit has become 
 abated, be at the same time a bill of revivor. A supple- 
 
 state to direct the decree on the original bill to be stayed in such manner 
 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 Rison, ut supr. 
 
 1 See Story's Eq. PL, \ 420. 
 
 It is not sufficient in a bill of review to refer to a record of the decree 
 sought to be reviewed, as a paper on file in the Court, with a request 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 Ga. 24. All parties to the 
 original decree must be made parties to the bill of review : Sturges v. 
 Longworth, 1 Ohio St. N. S. 54; but see Bayse v. Beard, 12 B. Monr. 581. 
 
 Where a demurrer to a bill of review for error on matter of law is over- 
 ruled, the decree is reversed, and the errors allowed : Guerry v. Ferryman, 
 12 Ga. 14.
 
 OF BILLS OF REVIEW. 793 
 
 mental 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 interested in the subject, he must be 
 made a party to the bill of review by way of supple- 
 ment, (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. 1 The manner of pro- 
 cedure on such a bill *is to 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 
 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 
 reheard upon the original bill, and that the plaintiff may 
 have such relief as the nature of the case made by the 
 supplemental bill requires. (/) If the ground of com- 
 plaint be error apparent, it may be corrected on a rehear- 
 ing 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. 2 Thus, if a decree 
 
 (e) Mitf. 88-90. 
 
 (/) Perry v. Phelips, 17 Ves. 178 ; Mitf. 90, 91. 
 
 1 O'Hara v. Shepherd, 3 Md. Ch. 306 ; Ridgeway v. Toram, 2 Id. 303 ; 
 Cochran v. Rison, 20 Ala. 463. 
 
 s 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 c. Cheyne, 18 Jur. 348.
 
 794 ADAMS'S DOCTRINE OF EQUITY. 
 
 is made against a tenant for life, a remainderman in tail, 
 or in fee, cannot defeat the proceedings, except by a bill 
 showing the error in the decree, the incompetency in the 
 tenant for life to sustain the suit, and the accrual of his 
 own interest, and thereupon praying that the proceedings 
 in the original cause may be reviewed, and that for that 
 purpose the other party may appear to and answer this 
 new bill, and the rights of the parties may be properl}' 
 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, (g) 
 
 A bill to impeach a decree for fraud used in obtaining 
 it sufficiently explains its own character. 1 It may be filed 
 without the leave of the Court, because the alleged fraud 
 is the principal point in issue, and must be established by 
 proof before the propriety of the decree can be investi- 
 gated. And where a decree has been so obtained, 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 been consid- 
 r*4.9(Vl ere( ^ ^ a t wnere a ^decree has been made against 
 a trustee, without discovering the trust, or bring- 
 ing the cestui que trust before the Court, or against a for- 
 mer owner of property without discovering a subsequent 
 conveyance or encumbrance, 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 subse- 
 quent conveyance or encumbrance, or of the will, ought 
 
 (g) Mitf. 92. 
 
 1 See Story Eq. PL, 426; Guerry v. Durham, 11 Ga. 9; DC Louis r. 
 Meek, 2 Greene (la.) 55 ; Hitch v. Fenby, 4 Md. Oh. 190; Person v. Xevitt, 
 32 Miss. 180.
 
 OF BILLS OF REVIEW. 795 
 
 to be treated as a fraud. It has been also said, that where 
 an improper decree has been made against an infant, with- 
 out actual fraud, it ought to be impeached by original bill. 
 When a decree has been made by consent, and the con- 
 sent 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 cir- 
 cumstances of fraud on which it is impeached. The prayer 
 must necessarily be varied according to the nature of the 
 fraud used, and the extent of its operation in obtaining an 
 improper decree, (h} 1 
 
 (h) Mitf. 93, 94. 
 
 1 Where a demurrer to a bill to set aside a decree which has been ob- 
 tained by fraud, is overruled, this does not vacate or reverse the original 
 decree, but the complainant must proceed to establish his case : Guerry v. 
 Perrvman, 12 Ga. 14.
 
 INDEX. 
 
 THE PAGES REFERRED TO ARE THOSE BETWEEN BRACKETS [ ]. 
 
 ABANDON'. 
 
 contract, notice by aggrieved party 
 
 to, 88 
 ABATEMENT, 
 
 of suit. 403-406, 410, 417 
 ABROAD. 
 
 commission to examine witnesses, 
 
 ) >- 
 
 L _ >J 
 
 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 framinginstrument.166 
 ACCOUNT, 
 
 generally, 220-228 
 
 of committee. 293, 294 
 
 of legacies, 258 
 
 of mortgagee in possession, 118, 119 
 
 of profits of partnership, 244 
 
 of receivers. 293, 294 
 
 of trustee, 57, 63 
 
 of profits made, 64 
 
 discovery as to, 11 
 
 fraudulent, discovery as to, 5 
 
 partnership, jurisdiction as to, 239, 
 240, 241 
 
 ACCOUNT continued. 
 
 in suit for ascertainment of boun- 
 daries, 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 
 
 partj 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, effect 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.
 
 798 
 
 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 ap- 
 plication in, 
 262, 263 
 of estate of mortgagor, 120, 121 
 
 debtor, 130 
 
 suit, by whom instituted, 257 
 costs of, 64, 65, 390, 391 
 ADMINISTRATOR, 
 
 set-oft' in suits by or against, 222 
 action of account by or against, 225 
 appointed by Ecclesiastical Court, 
 248 
 
 See Representatives. 
 ADMIRALTY COURTS, 
 proceedings in, 198, 233 
 
 See Court. 
 ADMISSIBIL1TY, 
 
 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 unnecessary, 363 
 directed on trial of issue, 377 
 
 action, 378 
 
 See Answer; Copyholds. 
 ADMITTANCE, 
 
 to copyholds, bill to compel, 65, 98,99 
 ADVANCEMENT, 
 purchase construed as, 101 
 of ward, 286 
 of cause, order for, 401 
 ADVANCES, 
 
 future, 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 
 to interpleader, 206, 231 
 
 AFFIDAVIT continued. 
 
 by shipowners, 207 
 on application for production of doc- 
 uments, 15, 18, 331 
 
 to stay separate proceed- 
 ings, 259 
 
 to amended answer, 346 
 to obtain interlocutory or- 
 ders, 348, 355, 356 
 to grant injunction, 355, 
 
 356 
 
 to extend injunction, 195 
 to dissolve injunction, 355, 
 
 356 
 for leave to file a bill of 
 
 review, 417, 418 
 
 in cause, use of, before master, 383 
 for examination after publication, 
 
 372 
 
 to prove document at hearing, 373 
 as to instrument destroyed or lost, 
 
 167, 331 
 AFFIRMATIVE, 
 
 pleas, 337 
 AGENT, 
 
 notice to, 157 
 
 bill by, against principal, for ac- 
 count, 221 
 
 bill of interpleader by, 204 
 inquiry as to wilful default of, 221 
 to sell or buy, 184 
 neglecting to render accounts, 220, 
 
 221, 222 
 
 mixing up his own with his princi- 
 pal's property, 222 
 making profit for himself, 222 
 account against, 221 
 substituted service on, 324 
 AGREEMENT, 
 
 under Statute of Frauds, 85, 86 
 to deposit deeds, 124 
 to refer to arbitration, 192 
 on behalf of infants, 285 
 
 lunatic, 295, 296 
 instrument executed in pursuance 
 
 of, 169 
 written, see 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
 
 INDEX. 
 
 799 
 
 ALIENEE, 
 
 with notice, rights of, 273 
 pendentc lite. 408, 409 
 bound by proceedings in suit, 409 
 ALIMONY, 
 what, 46 
 arrears of, ground for writ of ne 
 
 exeat regno, 360 
 ALL HC AT ION, 
 in bill. 306 
 
 See Statement; Charges. 
 ALLOWANCE, 
 
 of exceptions, 386, 387 
 ALTERATION. See Instrument; Con- 
 
 i-erxian ; Decree. 
 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 hearingliberty of, 342, 343 
 of answer, 346 
 of state of facts, 383 
 AMERICAN COURTS. 121 
 ANNUITIES, 
 
 life, sale of, 83 
 ANOMALOUS PLEA, 338 
 ANSWER, 
 
 rules as to, 8, et seq. 
 what a defendant must, 308 
 of one defendant, effect of, as against 
 another, 20 
 
 as respects 
 himself, 
 20, 21 
 
 prolixity of. 11 
 suggestion in, of matter for inquiry, 
 
 21 
 
 positive denial in, effect of, 21 
 admissions by, 363 
 
 as to documents, 14, 
 
 et s/. 
 how read in equity, 21 
 
 at law, 21 
 defence by, 342-347 
 
 when bill denmrrable, 
 
 336 
 
 protection from discovery by, 4 
 in support of plea, 332, 337, 339, 
 
 340 
 
 plea directed to stand for, 342 
 use of. as evidence, 3G3 
 to bill for administration, 259 
 to cross-bill for discovery. JJ 
 to bill for injunction, 194, 205 
 of revivor, 407 
 
 ANSWER continued. 
 
 formal, filed in name of defendant, 
 
 329 
 
 contract to. 5 
 
 exception for insufficiency of, 14 
 further, 346 
 motion or petition on, 348 
 
 See Discovery. 
 ANTICIPATION, 
 
 clause prohibiting, 43, 44 
 language to impose fetter on, 45 
 APPEAL 
 
 generally, 388, 396-401 
 
 in lunacy, 290 
 
 at law, 300, 301 
 
 in equity, on facts as well as law, 
 
 366, 377 
 APPEARANCE 
 
 entered for defendants, 326, 328 
 at hearing, default of, 374, 400 
 APPLICATION 
 
 of purchase-money, 156 
 APPOINTMENT, 
 
 power of, abuse of, 185 
 under power, 30 
 
 as to election, 93, 94 
 of new trustees under power, 38 
 
 effect of bill filed 
 
 for, 39 
 
 by Court, 37, 39 
 
 of person to convey, by Court, 37 
 judgment defeated by, 153 
 
 See Receiver. 
 APPORTIONMENT, 
 of costs, 300, 392 
 ARGUMENT, 
 
 of demurrer, 335 
 of plea, 339, 342 
 ARBITRATION, 
 
 discovery in aid of, 18 
 dispute referred to, 191, 192 
 submission to, arbritation of, 191, 
 
 192 
 made rule of Court, 
 
 192 
 
 See Submission. 
 ARBITRATOR, 
 
 proceedings before, 18 
 miscarriage of, 191 
 misconduct of, 192 
 grounds of judgment of, 193 
 ARRANGEMENT, 
 
 by consent, reference to Master, as 
 
 to, 379 
 ASSENT. 
 
 of executor to bequest, 250, 251 
 ASSETS, 
 
 legal, defined, 252-254 
 equitable, defined, 254-257
 
 800 
 
 INDEX. 
 
 ASSETS continued. 
 
 getting in of, 250, 251, 252 
 
 of partnership, administration of 
 
 240, 241 
 
 interest in, 241, 242 
 
 testamentary, administration of, 
 
 248-266 
 
 answer to bill of revivor as to, 407 
 ASSIGNEES, 
 
 in bankruptcy, 142 
 
 grants void against, 
 
 145 
 suit defective for want 
 
 of, 409 
 
 plaintiff, death of, 410 
 See Bankrupt; Bankruptcy ; Chose 
 
 in Action. 
 ASSIGNMENT, 
 
 of chose in action, 53, 54,80, 142, 148 
 
 of coyyright, 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; 
 
 Elenit. 
 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, 328 
 
 of answer, 329 
 
 for non-performance of decree, 393 
 non-bailable for costs, 394 
 ATTAINDER, 
 
 of cestni que trust, effect of, 50 
 of trustee or mortgagee, 50 
 ATTENDANCE, 
 
 before Master, 382, 383 
 ATTENDANT. See Terms. 
 ATTESTING, 
 
 witness, e/idence of, 249, 250, 373 
 ATTORNEY, 
 
 communication with, 6 
 
 ATTORNEY continued. 
 taking a benefit, 184 
 
 See Solicitor. 
 
 ATTORNEY-GENERAL, 
 party 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, proceeding? 
 
 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, 33G 
 AWARD, 
 
 how enforced, 192 
 may be impeached, 192 
 how invalidated, 193 
 jurisdiction to set aside, 191, 193 
 application to set aside, 193 
 plea of, 337 
 BAIL, 360 
 
 See Equitable Bail. 
 BAILIFF, 
 
 accounts of, 225 
 BANK, 
 
 notes, sheriff to seize, 131 
 distringas on, as to stock, 357, 358 
 restraining order on, as to transfer 
 
 or dividend. 358 
 BANKRUPT, 
 
 mortgagor becoming, 121 
 plaintiff' becoming, 409 
 uncertificated, sued, 331 
 assignees of, costs of, 390, 391 
 BANKRUPTCY, 
 Court of, 198 
 fraudulently issuing fiat of, 198
 
 INDEX. 
 
 801 
 
 BANKRUPTCY continued. 
 fiat in, not notice, 157 
 conveyances &c. avoided by, 145, 148 
 assignees in, injunction to restrain, 
 
 198 
 
 petition in, 349 
 set-off in, 223 
 of partner, 241, 246 
 pendente Iite v 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 
 BILL, 
 
 generally, 301-311 
 statement in, 302, 303 
 charges in, 302, 303 
 interrogatories in, 302 
 prayer of relief, 302 
 
 process, 302 
 for administration, 257 
 
 of assets, evi- 
 dence 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 pro- 
 ceedings, 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 
 
 51 
 
 BILL continued. 
 
 by surety against principal, 270 
 by one of a class on behalf of him- 
 self and others, 320, 410 
 when affidavit to be annexed to, 167 
 pro confesso, application to take, 326 
 taken pro confesso, 327, 329, 400 
 and answer, cause heard on, 347 
 dismissal of, 373 
 
 for want of prosecution, 347 
 right to file new, 373 
 order to retain, with liberty to pro- 
 ceed at law, 378 
 imperfections of, 402, 403 
 
 See Copy of Sill; Cross-Sill; In- 
 junction ; Interpleader ; Original 
 Bill; Review; Revivor; Supple- 
 ment. 
 BILL OF EXCHANGE, 
 
 sheriff to seize and sue on, 131 
 
 action on, 168 
 
 injunction against negotiating, 355 
 
 See Security. 
 BONA VACANTIA, 
 
 trust of chattels when, 51 
 BOND, 
 
 with penalty, 108 
 
 to marry, 187 
 
 of committee or receiver, 294 
 
 debt, priority of, 252 
 
 may be tacked, 164 
 correction of, 172 
 lost, 167 
 
 profert of, at law, 167 
 parties to, 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, consent- 
 ing to, 62 
 
 suit as to, parties to, 319 
 cost of suit as to, 64 
 affecting charity property 
 Romilly's acts in respect 
 to, 75, 76 
 to discover secret, 216
 
 802 
 
 INDEX. 
 
 BREACH continued. 
 
 of professional confidence, 370 
 
 of contract, see Specific Performance. 
 BUILDING, 
 
 contract for, 83 
 BUSINESS, 
 
 good will of, 80, 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. 
 
 See Confirmation. 
 CAVEAT, 
 
 against enrolment of decree, 307 
 
 emptor, maxim of, effect of, 178 
 CERTIFICATE, 
 
 on case directed, 376 
 
 of counsel for rehearing or appeal, 
 
 399 
 CESTUI QUE TRUST, 
 
 who called, 26 
 
 effect of death of, without heirs, 50 
 attainder of, 50 
 
 trustee may deal with, 60, 184 
 
 option of, in case of breach of trust, 
 143 
 
 consent of, to breach of trust, 62 
 
 suit by parties to, 318 
 
 See Conversion ; Reconversion. 
 CHAMPERTY, 
 
 discovery as to, 3 
 CHANGE, 
 
 of property subject to a trust, 142 
 
 See Conversion. 
 CHARGE, 
 
 equitable, by deposit of deeds, 125 
 
 lien available by way of, 127 
 
 judgment, under 1 & 2 Viet. c. 110, 
 130, 131 
 
 creation of, on partition, 231 
 
 See Contribution; Discharge; Ex- 
 oneration; Encumbrance; Mar- 
 shalling. 
 CHARGES, 
 
 in bill, 302, 303 
 
 CHARGES continued. 
 
 and expenses, 391 
 CHARITABLE 
 
 purposes, trust for, 65, et seq. 
 Uses, Statute of, 66, 75 
 
 trusts of real estate for, 68 
 trust, purchaser with notice of, 69 
 cy pres application of, 69, 70, 
 
 71 
 bequests, no marshalling in favor 
 
 of, 276 
 CHARITY, 
 
 meaning of -word, 65 
 three duties of, 97 
 gift to, 70, et scq. 
 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 maint^n- 
 
 ance of, 286, 296 
 CLIENT, 
 
 communications of, with advisers, 
 
 discovery as to, 6 
 attorney taking benefit from, 184 
 CLOUD, 
 
 on title, jurisdiction of equity to re- 
 move, 202
 
 INDEX. 
 
 803 
 
 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, 24T 
 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 lunatico inquirendo, 292 
 
 under great seal, inquisitions on, 
 
 transcripts of, 296 
 COMMISSIONERS, 
 
 to make partition, 231, 380 
 to examine witnesses, 368 
 for regulation of charities, 75 
 for settling boundaries, 380 
 for assignment of dower, 380 
 in lunacy, now masters, 294 
 COMMITTEE, 
 in lunacy, 
 
 appointment of, 291 
 powers of, 295 
 duties of, 293, 294 
 security given by, 294 
 allowance for maintenance to, 
 
 293 
 
 remuneration to, 293 
 control over, 298 
 of lunatic or idiot, suit by, 301 
 COMMON INJUNCTION, 195,358,359 
 COMMUNICATION, 
 
 privileged, 6 
 COMPANY. 
 
 injunction against, 211 
 bill by, parties to, 320, 321 
 COMPENSATION, 
 what, must be, 91 ~ 
 condition of sales as to, 89, 90 
 for defects, 85, 89 
 
 performance with, 90, 
 
 91 
 
 in cases of election, 96, 97 
 for non-performance of covenants, 
 
 109 
 
 COMPETENT WITNESSES, 364 
 COMPLETION. See Specific Perform- 
 
 COMPOSITION, 
 
 with creditors, 179, 180 
 
 real, 236 
 COMPROMISE, 
 
 made under mistake, 188 
 
 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, necessity for specific per- 
 formance, 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
 
 804 
 
 INDEX. 
 
 CONTRACT continued. 
 
 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 
 
 compel, 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, 206, 297 
 of partnership estate, 245 
 
 CONVEYANCE, 
 
 on trust, advantage of, 27 
 inconvenience and risk of, 27 
 to new trustee, 37, 38 
 by trustee when trust at an end, 59 
 by incapacitated trustee, 81, 349 
 in pursuance of executory trust, 169 
 by substitution, 37, 39, 81, 116 
 where party has become lunatic, 296 
 fraudulent, statutes against, 145, 147 
 
 153 
 
 imperfect, 123 
 unregistered, 153, 155 
 with compensation for defects, 85, 89 
 by bankrupt or insolvent, 145, 148 
 by donee having elected, 96 
 by tenant in tail, 99 
 on decree of partition, 232 
 of legal estate, protection by, 159,160 
 character of, evidence of, 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, 
 
 389-3'Jl 
 
 general rules as to, 392 
 apportionment of. 389, 390, 392 
 as between party and party, when, 
 
 391 
 
 solicitor and client, when, 391 
 where tender or terms offered, 393 
 when out of estate or fund, 400, 401 
 of mortgagee, 111 
 of trustee, 61 
 
 of vendor where title not shown, 89 
 to pay for lunatic, 296 
 of answer to bill for discovery, 21, 
 
 22, 392 
 for discovery and 
 
 relief, 21, 22 
 cross-bill for dis- 
 covery, 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
 
 INDEX. 
 
 805 
 
 COSTS continued. 
 
 of rehearing of bill taken pro con- 
 
 fesso, 400 
 
 in case of appeal, 400, 401 
 of rehearing on appeal, 400, 401 
 of the cause, time for deciding, 389 
 decree or order directing payment 
 
 of, 394 
 
 rehearing on question of, 400 
 right to revive as to, 406, 407 
 defendant's answer to save, 21 
 CO-TENANTS, 
 
 partition of, 229 
 COUNSEL, 
 
 communication of, with client, 6, 7 
 
 notice to, 157 
 
 signature of, to pleadings, 301 
 
 to exceptions, 345, 386 
 to interrogatories, 368 
 to petition of rehearing 
 
 or appeal, 399 
 to printed case, 399 
 certificate of, on appeal, 399, 400 
 COUNTY PALATINE, 
 
 suit for land in, 331 
 COURTS, 
 
 of equity, proceedings in, com- 
 plained of, 198 
 of equity, inferior, 415 
 of law and equity, contest between, 
 
 196, 197 
 
 of law, case for opinion of, 375, 376 
 of chancery, officers of, 198, 199 
 proceedings in, discovery in aid of, 
 
 18, 19 
 proceedings in other, injunction 
 
 against, 198 
 manor, proceedings in, correction 
 
 of, 65 
 
 See Action; Jurisdiction; Suit. 
 COURT ROLLS, 
 not notice, 157 
 COVENANT, 
 
 in lease, non-performance of, 109 
 compensation in respect of, 109 
 covenantor 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 Viet., c. 110, 130, 131 
 suit by, 257, 258, 320 
 
 some on behalf of all, 257, 
 
 258, 320, 404, 410 
 costs of, 391 
 
 CREDITORS. continued. 
 
 proceedings by, against executor or 
 
 administrator, 250, 251 
 puisne, right against paramount cre- 
 ditor, 272 
 of lunatic, 297 
 of partnership, rights of, 244 
 gifts invalid against, 147, 148 
 grants, &c., void against, K45, 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; Ex- 
 ecution; Marshalling; Principal; 
 Sureties. 
 CRIME, 
 
 discovery as to, from defendant, 3, 
 
 4, 343 
 CROSS 
 
 bill, generally, 402, 403 
 form of, 403 
 
 when necessary, 17, 402, 403 
 right of defendant to file, 2, 17, 
 
 347, 402 
 costs of, 22 
 
 demands, right of set-off of, 223 
 examination of witness, 370, 371 
 interrogatories, 370 
 suit, court may direct, 226 
 CROWN, 
 rights of, by escheats or forfeiture, 
 
 50, 51 
 rights of, as to idiots and lunatics, 
 
 290, 291 
 jurisdiction of, as to eleemosynary 
 
 corporations, 74 
 appellate jurisdiction of, in equity, 
 
 397 
 
 prerogative copyright of, 214 
 debts due to, priority of, 252 
 conversion in 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 
 
 of, 67, 68, 73 
 license of. for quitting kingdom, 560 
 
 See A Urn; Attainder. 
 CUMULATIVE. See Gift; Legacy. 
 CURATOR, 
 
 of estate of lunatic, 296 
 CUSTODY, 
 
 of infants, 280, 281 
 
 statute as to, 283, 284 
 illegal, of infant, 281
 
 806 
 
 INDEX. 
 
 CUSTODY continued. 
 defendants in, 327 
 instrument in defendant's, 25 
 
 See Infant. 
 CY PRES, 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 Compensation ; Destructive ; 
 
 Trespass ; Penalty. 
 DEATH, 
 
 causing defect in suit. 410 
 abatement, 403, 405, 406 
 of assignee of bankrupt or insolvent 
 
 plaintiffs, 410 
 debtor, 130, 148, 173 
 heir pendente lite, 234 
 husba-nd, 404, 405 
 idiot, 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 
 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 
 
 DEBTS continued. 
 joint and several, 172 
 owing by a partnership, 173 
 
 See Bond Debt ; Composition , 
 Principal; Set-off; Simple Con- 
 tract Debt; Sureties. 
 DECEIT, 
 
 intentional, 150 
 DECLARATION, 
 of trust, 27, et seq. 
 omission of, 32 
 how interpreted, 40 
 that fund may be identified, 56 
 character of trustee assumed by, 80 
 of intention, evidence of, 102 
 as to breach of trust, evidence of, 143 
 DECREE, 
 
 generally, 374-395 
 
 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 supple- 
 mental, 411 
 
 in supplemental suit, 415 
 for charging property, 130 
 of injunction, 194 
 for dissolution of partnership, 242, 
 
 243 
 
 for delivering up an estate, 393 
 for payment of money, 393 
 original, 387, .388 
 on further directions, 387 
 in administration suit, 262 
 minutes of, <396 
 passed and entered, 396 
 signed and enrolled, 417 
 when in fieri, 396 
 conclusive, 396, 397 
 service of copy of, 394 
 error in, 396, 397 
 compelling obedience to, 326-393, 
 
 395 
 
 unjust, enforcement refused, 416 
 obtained by fraud, 419 
 by consent fraudulently obtained, 
 
 42.0 
 
 improper against infant, 420 
 alteration or reversal of, 396, 417
 
 INDEX. 
 
 807 
 
 DECREE continued. 
 
 bill to execute or impeach, 415, 
 
 416 
 bill to suspend or avoid operation 
 
 of, 416 
 
 reversal of, bill for, 416, 417 
 proceedings under, stay of, 401 
 impeached, bill of review shall not 
 
 prevent execution of, 417, 418 
 having effect of judgment, 130, 131 
 debts by, priority of, 252 
 when some parties out of jurisdic- 
 tion, 322, 323 
 on argument of plea, 342 
 saving rights of absent parties, 343 
 evidence, foundation for, 362, 363 
 evidence entered in, as read, 399 
 trustees constituted by, 62 
 by consent, excludes appeal, 400 
 on default, rehearing or appeal as 
 
 to, 400 
 
 matter discovered after, 415, 417 
 by inferior court of equity. 414 
 interlocutory, notice by, 157 
 final, or judgment, not notice, 157 
 mention of, in master's report, 384, 
 385 
 
 See Order; Priorities. 
 DEED, 
 
 execution of power by, 100 
 under duress, 182 
 mortgage by deposit of, 123 
 depositee of, 125 
 to be registered, 153 
 registration of, not notice, 157 
 master to settle, 379 
 resulting trust by, 32 
 of separation, 44 
 
 See Search ; Title Deeds ; Trust. 
 DEFACEMENT, 
 
 suit to prevent, 92 
 DEFAULT, 
 
 decree by, 374, 400 
 DEFEASIBLE, 
 
 interest being, 152, 153 
 DEFECTS, 
 
 substantial, 90 
 
 compensation for, 85, 89, 90, 91 
 in defendant's title, 15, 16 
 in title, waiver of, 87 
 in execution of gift, 100 
 in suit, how cured, 408, et seq. 
 fraud as to, 178, 179 
 DEFENCE, 
 
 statement and charge to meet, 303, 
 
 304 
 
 to a suit, 331-348 
 DEFENDANT, 
 
 at law and in equity, 1, 2 
 
 DE F END ANT continued. 
 
 absconding process against, 327 
 privileged, process against, 327 
 competent or incompetent, 8 
 discovery by one, effect of, 20 
 protection of, from discovery, 2, 3, 
 
 4, 343 
 
 conflicting claims of, 313 
 right of, to set off, 222, 223 
 in custody under process, 327 
 to answer contempt, 329 
 third answer of, insufficient, 346 
 litigation between, 462 
 female, marriage of, 403, 404 
 infantcomingofage,discoveryfrom, 
 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 supple- 
 mental, 411 
 
 in supplemental suit, 413 
 motion for leave to read, 413 
 
 to suppress, 370 
 used against alienee pendente lite, 
 
 409 
 DESIGNS, 
 
 registered, protection to, 214 
 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 
 DEVISAVFT VKL NON, 
 issue, when directed, 249
 
 808 
 
 INDEX. 
 
 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 recon- 
 veyance, 116 
 of vendee, 140 
 of vendor, 141 
 title of, 249 
 
 how far trustees for creditors, 251 
 and heirs, contributions, &c., be- 
 tween, 274 
 
 See Representatives. 
 DIRECTORS, 
 
 of company, suit against, 322 
 DISABILITY, 
 to sue, 331 
 plea of, 336 
 DISCHARGE, 
 
 by matter in pais of contracts under 
 
 seal, 106-109 
 trustee's receipt, 156 
 of encumbrances, contributions 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 defend- 
 ants, 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; Docu- 
 ments; Patent. 
 DISMISSAL 
 
 of bill for administration, 259 
 
 DISMISSAL continued. 
 
 if plaintiff omit to file replication, 
 
 347 
 
 for want of prosecution, 373 
 on default of plaintiff, 373 
 if plaintiff neglect to revive, 406, 
 
 407 
 when plaintiff bankrupt, 409 
 
 See Bill. 
 DISSEISIN 
 
 of trustee, 37 
 DISSOLUTION 
 
 of partnership by death or bank- 
 ruptcy, 246 
 
 of partnership, suit for, 240, 322 
 what will cause or warrant, 241, 
 
 242 
 
 DISTRIBUTION 
 of assets, 261 
 bill for, 262 
 among creditors, 250 
 
 partners, 241, 245 
 See Statute of Distributions. 
 DISTRINGAS, 
 process by, 326 
 as to stock, 357 
 DIVIDENDS. 
 
 on stock of infant, 286 
 
 lunatic, 296 
 See Distringas; Restraining Order ; 
 
 Stock. 
 DOCKET 
 
 of judgments, 155 
 system abolished, 155 
 
 See 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 seques- 
 trators, 395 
 
 See Inspection; Production. 
 DONEE, 
 
 of power, contract by, 99 
 quasi owner, 99
 
 INDEX. 
 
 809 
 
 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 
 DURANTK MINORE ^ETATE, 
 
 administration, 410 
 DURESS, 
 
 contracts by persons under, 182 
 
 See Fraud. 
 DUTY, 
 
 moral, performance of, a considera- 
 tion, 97, 101 
 assets. 252 
 bail, writ of ne exeat operates in 
 
 nature of, 360 
 charge, 125 
 conversion, 135-145, 245 
 
 See Conversion. 
 debt, ground for writ of ne exeat, 
 
 360 
 
 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 Viet. c. 
 110, and 2 & 3 Viet. c. 11, 131, 
 159 
 estate by assignment of, 159 
 
 ENCUMBRANCE, 
 
 inquiry of vendor as to, effect of, 
 
 150 
 
 contribution to discharge, 270 
 on estate of lunatic, 296 
 ENCUMBRANCER, 
 prior, 122 
 mesne, 163 
 
 rights of, as to receiver, 353 
 power of, to tack, 163-165 
 getting in term, 52 
 acquiring conflicting rights, 53 
 ENFORCEMENT 
 
 of decree, 415, 416 
 ENGRAVINGS, 
 
 protection to, 214 
 ENLARGING PUBLICATION, 380 
 ENROLMENT 
 
 of decree, 374, 396, 397 
 
 caveat against, 397 
 vacated, 397 
 ENTAIL, 
 
 of trust estate, 50 
 executory trust as to, 41, 42 
 EQUITY, 
 
 to have accounts taken in chancery, 
 
 see Account. 
 for account in injunction suit, 219 
 
 bar to, 227 
 for administering assets of testator 
 
 or intestate, 248, 250 
 for assignment of dower, 233, 234 
 for resorting to chancery in cases of 
 
 set-off, 222, 223 
 for partition, 229 
 for sale of partnership estate, 244, 
 
 245 
 
 for specific performance, 285 
 for winding-up partnerspip, 239 
 of interpleader, essentials to, 203 
 of injunction against tort, 207 
 injunctive, incidents of, 217-219 
 to have legal impediments removed, 
 
 249 
 
 of contribution, 266, 267 
 of exoneration, 266, 269 
 of marshalling, 266, 271 
 of election, 92. et seq. 
 of wife to a settlement, 48, 288, 289 
 to file cross-bill, 402, 403 
 to revive, 406 
 in nature of tacking, 165 
 based on disputed legal right, 378 
 being equal, law prevails, 148, 159 
 when equal, 148 
 confessed, 196, 359 
 reserved, 359 
 
 decree on, 375 
 subordinate, 85
 
 810 
 
 INDEX. 
 
 EQUITY. continued. 
 
 subordinate, 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, et scq. 
 
 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, 1 13 
 
 of mortgagee's estate, 115 
 
 of mortgagor's estate, 113, 114 
 
 as to trust, 37, 50 
 
 ESSENCE OF CONTRACT. See Time. 
 ESTATE, 
 
 legal and equitable, analogy be- 
 tween, 50 
 
 equitable as to dower, 51 
 
 See Dower; Legal Estate; Personal 
 Estate; Possession; Real Estate; 
 Trust. 
 EVIDENCE, 
 
 generally, 362-373 
 
 of breach of trust, 143 
 
 of fraudulent conveyance, 147 
 
 of fraud, not fraud, 158 
 
 of mistake or error, 171, 172 
 
 in cases of election, 95 
 
 production of document being, 15, 17 
 
 as to presumption of trust, 34, 35 
 
 on purchase in name of another, 102 
 
 of intention as to gifts or legacies, 
 103, 104 
 
 extrinsic, of intention, 103, 104, 105, 
 106 
 
 presumptive, correction on, 172, 173 
 
 conflicting or insufficient, 376 
 
 going into, without answer, 329 
 
 notice of, in bill, 304 
 
 as to plea, 341 
 
 defects or failures in reference to 
 master to supply, 379, 382 
 
 EVIDENCE continued. 
 
 already used, use of, before master, 
 
 383" 
 
 additional, in master's office, 383 
 mention of, in master's report, 384 
 entered as read, 399 
 on rehearing and appeal, distinction 
 
 as to, 399 
 
 rejection of, ground of appeal, 399 
 new, of original equity, 413 
 
 after publication passed, 413 
 appendix of, to case, on appeal, 399 
 
 See Extrinsic; Parol. 
 EXAMINATION, 
 de bene esse, 23-25 
 
 bill for, 167 
 
 of witness at law, 363, 364, 365, 366 
 in equity, 366-368 
 before master, 383 
 method of, on reference to the mas- 
 ter, 382 
 
 of defendant, when third answer in- 
 sufficient, 345 
 
 of party to suit as witness, 363, 364 
 after publication, 371, 372 
 
 See Evidence. 
 EXAMINER, 368 
 
 documents produced before, 350 
 EXCEPTION 
 
 to answer for insufficiency, 14, 345, 
 
 346 
 
 to master's report, 345, 384, 386 
 EX DELICTO, 
 liability, 268 
 EXECUTED 
 
 trust, what, 40 
 EXECUTION, 
 at law, 300 
 
 writ of, under 1 & 2 Viet., c. 110, 129 
 taking debtor's person in, 133, 134 
 property exempt from, 130 
 plaintiff restrained from issuing, 196 
 against partner, 241 
 
 See Fieri Facias ; Elegit. 
 of deed, proof of, 373 
 of instrument, decree for, 394, 395 
 by master, instead of 
 party in contempt, 
 395 
 
 See Re-execution. 
 of decree, bill for, 415, 416 
 
 bill of review shall not 
 
 prevent, 417 
 EXECUTORS, 
 powers of, 251 
 
 discovery by, as to accounts, 11 
 action of account by or against, 225 
 set-off in suit by or against. 222 
 of executors, account by, 225
 
 INDEX. 
 
 811 
 
 EXECUTORS continued. 
 
 of trusti 
 
 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 I'ARTE 
 
 injunction, 205, 355 
 EXTINCTION 
 
 of 4rust, 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 
 
 FEME COVERT continued. 
 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 ac- 
 count, 388, 389 
 FEOFFMENT ' 
 
 of insane person, 182 
 FERRY 
 
 obstructions of, 200 
 FIERI FACIAS, 
 
 equitable, 122, 129-134 
 
 extension by statutes, 1 & 2 Viet. c. 
 
 110, and 2 Viet. 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; Recognisance; Sta- 
 tute. 
 FOREIGN 
 
 court, proceedings in, 19, 198 
 sovereign, party to suit, 2, 313 
 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
 
 812 
 
 INDEX. 
 
 FRAUD continued. 
 
 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 
 
 precluding copyright, 215 
 
 to discover secret, 216 
 
 set-off in cases of, 223 
 
 alleged in bill, reason against de- 
 murring, 536 
 
 by solicitor, notice of, 151 
 
 concealment, evidence of, 151 
 
 evidence of, not fraud, 158 
 
 costs in cases of, 392 
 
 See Bankruptcy ; Cancellation ; 
 Fraudulent Conveyances ; Misled; 
 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 
 GAVELK1ND, 50 
 GENERAL OBJECTS, 
 
 trust for, 65 
 GIFT, 
 
 instrument of, 79, 80 
 
 on meritorious consideration, 98, 
 99, 100 . 
 
 promise inter vivos followed by, 
 104, 105 
 
 as substituted portion, 101 
 
 cumulative, 101 
 
 successive, 103 
 
 See Consideration. 
 GOODS, 
 
 sale of, 83 
 
 account of, 224 
 
 GOODWILL 
 
 of business, 81 
 
 of partnership, 246 
 GRAMMAR SCHOOLS, 
 
 jurisdiction by statute as to, 76 
 GRANDCHILD, 
 
 equity of, 101 
 GRANT 
 
 of trust or confidence, 28 
 
 fraudulent, 145 
 
 voluntary, 146 
 GUARANTEE, 
 
 contract to, 106 
 
 stipulation in, 107 
 
 by specialty, 106, 107 
 
 by simple contract, 107 
 
 discharge of, 106, 107 
 
 restraint from suing at law upon, 
 
 107 
 GUARDIAN, 
 
 appointment of, 281, 349 
 
 in socage, 279 
 
 account of, 225 . 
 
 authorized by court, act of, 143 
 
 legal misconduct of, 283 
 
 under Marriage Act, 289 
 
 of personal estate of lunatic, 292 
 
 consent of, to marriage, 289 
 
 property unduly changed by, 142, 
 143 
 
 benefit to, from ward, 184 
 
 Master to appoint, 380 
 GUARDIANSHIP, 
 
 kinds of, 279, 280 
 
 by statute, 280 
 
 right of, 278-280 ' 
 HABEAS CORPUS, 
 
 jurisdiction under, 280 
 HANDWRITING, 
 
 proof of, 373 
 HARDSHIP, 
 
 specific performance, being, 85 
 HEARING, 
 
 generally, 374-395 
 
 of cause, documents produced at, 
 350 
 
 of exceptions, 387 
 
 as to assets, in suit to revive, 407 
 
 on supplemental matter, 415 
 
 See Cause; Further Directions. 
 HEIR, 
 
 equity of, 100, 101 
 
 right of, to an issue devisavit vel 
 non, 249, 377 
 
 expectant, bargain with, 186, 191 
 
 presumptive, of lunatic, 294, 295 
 
 of mortgagee in respect of recon- 
 veyance, 116 
 
 of trustee, 37, 38
 
 INDEX. 
 
 813 
 
 HEIR continued. 
 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 
 
 action, 142 
 
 of female party to suit, 403, 404 
 and wife, bill by or against, 403, 404, 
 
 *405 
 
 mortgage by, 173 
 admissions by, 363 
 See Feme Covert. 
 IDIOT, 
 
 who considered, 290 
 conveyance and contract of, 182 
 suit by, 301 
 
 suit against, parties to, 313 
 IGNORANCE 
 of law, 190, 191 
 rescinding transaction, 188 
 as to instrument, 166 
 forfeiture incurred by, 109 
 ILLEGAL TRUSTS, 32, 33 
 ILLEGALITY 
 
 as to instrument, 166 
 ILLUSORY APPOINTMENT, 185, 186 
 IMBECILITY, 
 
 consequence of, 183 
 IMMORALITY, 
 
 precluding copyright, 316 
 
 IMPERFECTION' 
 
 of bill, 402, el seq. 
 IMPERTINENCE, 
 
 in allegations in bill, 306 
 in answer, 313 
 
 IMPERTINENCE continued. 
 
 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. 
 INDEMNITY, 
 
 oflFer 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 g 
 
 statutes relating to property of, 285 
 custody of, 283, 
 284 
 
 estate of, receiver appointed, 353 
 
 property of, unduly charged, 142, 
 143 
 
 day for, to show cause, 232 
 
 trustee being, 37, 38 
 
 heir of mortgagee being, 116 
 
 mortgagor, sale directed, 120, 121 
 
 admissions by, 363 
 
 defendant, answer by, 8 
 
 coming of age, discovery 
 from, 414 
 
 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
 
 814 
 
 INDEX. 
 
 INFRINGEMENT continued. 
 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 
 
 proceedingsatlaw, 194-198, 
 
 249, 311 
 
 proceedings in ecclesiasti- 
 cal and other courts, 197, 
 198 
 
 tort, 207-219, 247 
 trespass as to mine or col- 
 liery, 247 
 ejectment, 249 
 on bill of interpleader, 205 
 by shipowners, 207 
 to stay separate proceedings in ad- 
 ministration suit, 259, 260 
 continued, 196 
 made perpetual, 196 
 order of, 349, 355-359 
 operation of, 194 
 after judgment, 196 
 motion to dissolve, 196, 205, 206, 
 356, 359 
 
 See Dissolution. 
 INJURIOUS ACTS, 
 
 contract to refrain from, 83 
 IN LOCO PARENTIS, 
 
 person, 35, 98, 101 
 INNOCENCE 
 
 of party profiting by fraud, 176 
 INQUIRY 
 directed, 367 
 
 on interpleader, 206 
 as to wilful default of trustee or 
 
 agent, 221 
 
 as to profits of partnership, 246 
 in lunacy, 294 
 on bill for specific performance, 
 
 362 
 
 to verify statement, 177 
 effect of, as to notice, 157, 158, 
 
 161 
 suggestion in answer of matter for, 
 
 21 
 
 preliminary, 380, 381 
 INQUISITION 
 
 de lunatico inquirendo, 291, 292 
 transcripts of, 296 
 
 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 DOCT.MENTS, 
 plaintiff's right to, 13 
 before hearing, 16 
 in possession of plaintiff, 17, 18 
 
 See Production. 
 INSTRUMENT, 
 
 execution of, contempt in regard to, 
 
 394 
 
 delivery of, 167 
 
 construction of, as to trusts, 30, 31 
 written, extrinsic evidence as to, 
 
 103, 104, 105, 106 
 in pursuance of agreement, 169 
 destroyed, lost, or in defendant's 
 
 custody, 25 
 
 See Cancellation; Concealment; Cor- 
 rection ; Destruction ; Execution ; 
 Loss ; Missing ; Negotiable ; Re-ex- 
 ecution ; 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 Extriusic Evidence. 
 INTEREST 
 
 on moneys retained by trustees, 63 
 
 used by trustees, 64 
 compound, when trustee charged 
 
 with, 64 
 
 on purchase-money, 88-140 
 on legacy, 101, 102, 103 
 on mortgage, increase or reduction 
 
 of, 108, 109, 112 
 payment of, within 
 
 twenty years, 118 
 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, 152, 153 
 cessation of, 5 
 of parties to suit, 314 
 
 rise of, 410-411
 
 INDEX. 
 
 815 
 
 INTEREST continued. 
 
 of parties to suit, transfer of, 408- 
 
 410 
 
 examined as wit- 
 nesses, 364 
 of witnesses, 363-365 
 of surviving parties to suit, 404 
 defendant incapable of having, 5 
 INTERLOCUTORY 
 orders, 348-361 
 
 alteration or reversal of, 
 
 396 
 
 applications for preliminary de- 
 crees, 375 
 writ of injunction, 194, 195 
 
 motion for, 21? 
 
 See Decree; Motion; Order; Peti- 
 tion. 
 
 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 the third answer reported insuf- 
 ficient, 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, 
 
 enrolment 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 & 2 Viet., c. 110, 
 
 122, 129-134, 148 
 charge on stock and shares, \33 
 debts, priority of, 252 
 debt, payment of, 261 
 person bound by, 123 
 decrees, &c., having effect of, 130, 
 
 131 
 
 lien by, equity under, 149 
 creditor must obtain, 148 
 against owner of equitable interest, 
 
 152 
 
 memorial of, 154 
 undocketed, 153, 155 
 when take effect, 145 
 or final decree, not notice, 157 
 docketing or registration of, not no- 
 tice, 157 
 
 at law, when chancery will inter- 
 pose, after, 196, 197 
 injunction after, 196 
 of court, supposed error in, 197 
 motion to arrest, 300 
 subpoena to hear, 373 
 creditors, rights of, 129, et seq. 
 rights of, extended to all property, 
 
 133 
 under statute 1 & 2 Viet., c. 110, 
 
 130, 131, 132, 148 
 
 taking person of debtor in execu- 
 tion, under, 133, 134 
 
 See Search. 
 JURISDICTION, 
 
 of courts of law and equity, distinc- 
 tion as to, 1, 175, 176, 248 
 of courts of equity to enforce -dis- 
 covery, 1 
 to enforce a right, 
 
 26 
 
 to administer a 
 right. 220
 
 816 
 
 INDEX. 
 
 JURISDICTION continued. 
 
 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 trust, 
 
 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 
 renewal of, by trustee or executor, 
 
 59, 60 
 of infant or feme covert, renewal of, 
 
 285 
 
 belonging to lunatic, renewal of, 
 295 
 
 LEASE continued. 
 
 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 substituted portion, 101 
 
 to stranger and child, distinction 
 between, 102 
 
 promise inter vivos, followed by, 
 104, 105 
 
 in discharge of debt, 105 
 
 notice to purchaser of, 156 
 
 right of executor to retain debt out 
 of, 223 
 
 See Charitable; Election. 
 LEGAL 
 
 estate, conveyance of, procured by 
 purchaser, 159 
 
 right, in either party, 159 
 
 not in either party, 160 
 where none, 162 
 order to try, 357 
 LEGATEE, 
 
 by a fraud, constituted trustee, 248 
 
 title of, 249 
 
 proceedings by, against executor or 
 administrator, 250, 251 
 
 administration bill by, 257 
 
 suit by, 258, et seq., 320, 410 
 
 advertisement for, 262 
 
 contribution, &c., between, 275 
 
 when party to suit, 315, 316, 320 
 
 See Class. 
 LESSEE, 
 
 discovery by, 5 
 
 See Lease. 
 
 LESSOR. See Landlord; Lease. 
 LETTER MISSIVE, 311 
 LETTERS PATENT. See Patent. 
 LIBEL, 
 
 precluding copyright, 216 
 LIBERTY TO APPLY, 388
 
 INDEX. 
 
 817 
 
 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 encum- 
 brance. 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 
 
 52 
 
 LUNATIC continued. 
 mortgagee being, 116 
 conveyance and contract of, 182 
 statutes relating to property of, 
 
 285 
 
 brothers and sisters of, 288, 297 
 curator of, estate of, 296 
 MAINTENANCE, 
 
 allowance of, 281, 349 
 
 past, allowance for, 288 
 
 of lunatic, allowance for, 293, 297 
 
 of ward, allowance for, 286, 287 
 
 provision for, 286, 287 
 
 interest on legacy 
 when 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. See 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
 
 INDEX. 
 
 MASTER continued. 
 
 reference to, for reinvestigation,304 
 as to sufficiency of an- 
 swer, 345 
 
 jurisdiction of, in conduct of suits, 
 380 
 
 report of, 384-387 
 
 in administration suit, 262 
 
 to execute surrender or transfer, 
 395 
 
 in lunacy, 294 
 MATERIAL 
 
 facts, evidence, as to, 362, 363 
 MEMORANDUM. See Agreement. 
 MEMORIAL 
 
 under Registry Acts, 154 
 MERCHANTS, 
 
 accounts of, 224, 225 
 
 what a stated account between, 227 
 MERITORIOUS OR 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. 
 MINUTES 
 
 of decree, 374, 396 
 MISAPPLICATION 
 
 of purchase-money, 155, 156 
 
 of trust-fund, 352 
 MISCONDUCT 
 
 of arbitrators, 192 
 
 of trustees, ground for receiver, 352, 
 353 
 
 alleged in bill, reason against de- 
 murring, 336 
 MISDESCR1PTION, 
 
 condition of sale as to, 89, 90 
 MISFORTUNE, 
 
 delay occasioned by, 89 
 MISJOINDER 
 
 of claim, 309, 310, 314 
 MISLED 
 
 party, equity of, 150 
 MISREPRESENTATION 
 
 by plaintiff as to contract, 84 
 
 equity originating in, 159, 205 
 
 fraud by, 176 
 MISSING 
 
 instrument, 166 
 MISSTATEMENT, 
 
 fraud by, 177,217 
 
 MISTAKE 
 
 affecting specific performance, 84, 
 
 85, 90 
 
 as to instrument, 166 
 of solicitor, correction of, 170 
 rescinding contract, 188 
 money paid under, 188 
 acts done under, 188 
 of law or of fact, 191 
 
 by arbitrators, 192 
 award procured by, 193 
 
 See Compensation; Error. 
 MIXING 
 
 trust-funds, 57 
 MODUS, 
 what is, 236 
 suit to establish, 236 
 
 costs of, 390 
 bill of peace as to, 199 
 issue to try, 236 
 MONEY, 
 
 trustees to realize or secure, 55, 56 
 
 invest, 56 
 purchaser in possession allowed to 
 
 expend, 36 
 purchase, not paid, 127 
 
 paid prematurely, 128 
 paid under mistake, 188, 
 
 189 
 See Fieri Facias ; Payment of, into 
 
 Court. 
 
 MORTGAGE, 
 definition of, 110 
 perfect and imperfect, 110-134 
 by husband and wife, 173 
 of an equity, 123 
 debt, payment of, 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 pen- 
 alty, 108, 109 
 
 property in, as assets, 264, 265, 274 
 estate in, in an infant, 285 
 
 See Tacking. 
 MORTGAGEE, 
 
 rights of, 110, et seg., 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, 21 
 when entitled to a sale, 120 
 power to tack, 163-165
 
 INDEX. 
 
 819 
 
 MORTGAGEE continued. 
 
 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 
 
 undocketed judgments as against, 
 155 
 
 inquiry as to wilful default of, 221 
 MORTGAGOR, 
 
 rights of, 110, et seq. 
 
 in possession, 114 
 
 answer of, as to costs, 21 
 
 as to prior mortgage, 122 
 
 of different estates, 165 
 
 receiver against, 353 
 
 becoming bankrupt, 121 
 
 See Infant. 
 MOTHER, 
 
 of infant, rights of, 283, 284 
 
 consent of, to marriage, 289 
 MOTION, 
 
 classes of, 348, 349 
 
 for common injunction, 358 
 
 to extend injunction, 195 
 
 to dissolve injunction, 196, 205, 206, 
 356, 359 
 
 for production of documents, 15, 18 
 
 for preliminary decree, 375 
 
 to confirm report, 385 
 
 to discharge order is regularly made, 
 397 
 
 by defendant that the 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 
 MULTIFARIOUSXESS, 
 
 what, 309, 310 
 
 as a defence, 331 
 
 demurrer for, 333 
 MUNICIPAL CORPORATION ACT, 
 
 trust under, 67, 76 
 MUTUAL, 
 
 fulfilment of contract, 80 
 
 accounts, see Accounts. 
 
 debts, see Set-off. 
 MUTUALITY, 
 
 between parties to contract, 82 
 NE EXEAT REGNO, 
 
 writ of, respecting alimony, 47 
 
 NE EXEAT REGNO continued. 
 
 application for, 360, 361 
 
 to discharge, 361 
 See Writ of. 
 
 NEGATIVE PLEA, 337 
 NEGLIGENCE, 
 
 evidence of fraud, 151 
 NEGOTIABLE 
 
 instrument, action on, 168 
 
 security, fraudulent holder of, in- 
 junction against, 207 
 See Security. 
 NEW MATTER, 
 
 after decree, 417, 418 
 
 statement as to, in bill of review, 
 
 418 
 NEW TRIAL, 
 
 at law, 300, 301, 366 
 
 on issue directed, 377 
 
 on action directed, 379 
 NEXT FRIEND, 
 
 of married woman, suit by, 301 
 NEXT OF KIN, 
 
 suits by, 320 
 
 proceedings by, against executor or 
 administrator, 251 
 
 bill by, when no preliminary in- 
 quiry 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 ; Lunacy. 
 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, 114 
 
 of claim, 150 
 
 of an equity, 151 
 
 of mesne equity, 163 
 
 to postpone equity, 161 
 
 of covenant, 152
 
 820 
 
 INDEX. 
 
 NOTICE continutd. 
 of dower, 152, 153 
 of prior encumbrance not regis- 
 tered, 154 
 
 of undocketed judgments. 155 
 under 3 & 4 Viet. 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 
 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 
 
 tcf stay proceedings pending appeal. 
 401 
 See Decree; Further Directions; 
 
 Interlocutory. 
 ORDERS IN COUNCIL, 
 
 printing, 214 
 ORIGINAL BILL, 
 
 in nature of reviver, 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 
 
 OUTSTANDING continutd. 
 
 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 
 transferred or changed, 
 53 
 
 devolution and transfer of, 49, 51 
 of trustee, 55 
 
 acts of. purchaser doing, 87 
 modified, of donee of power, 99 
 
 See Conversion. 
 PARENT, 
 purchase by, 35 
 gift or legacy by, 104 
 children being creditors of, 105 
 consent of, to marriage, 289 
 PARISH, 
 
 charitable bequest to, apportion- 
 ment 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. SeeJfodus; 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
 
 INDEX. 
 
 821 
 
 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 
 ex parte injunction as to, 355 
 disputed, infringement of, 378 
 right. 212. 213 
 
 See Infringement. 
 PAYMENT. 
 
 of principal or interest within 
 
 twenty years, 114 
 of purchase money, 156 
 of rents. 238 
 
 forfeiture for want of, 109 
 into court of balance in hand of 
 
 executor, 258, 259 
 order for, 349, 350-352 
 by plaintiff at law, 359 
 of money directed by decree, 394 
 
 contempt as to, 394, 395 
 See Debts; Purchase; Rents. 
 PEACE. See Bill. 
 PEER. 
 
 privileges of, 326 
 being defendant, 311 
 PENALTY, 
 
 discovered 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 
 PEXDENTE LITE, 331 
 suit pending, plea of, 336 
 receiver appointed, 352 
 
 ; PENDENTE LITE continued. 
 injunction granted, 355 
 alienation, effect of, 408 
 administration, 410 
 PERFORMANCE 
 
 of trusts, suits for, costs of. 390, 
 391 
 
 See Acts ; Part Performance ; Pen- 
 alty : Specific Performance. 
 PERPETUAL, 
 
 injunction made, 196 
 PERPETUATION. 
 
 of testimony, 23-25, 240 
 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 
 I'l.KA. 
 
 generally, 336. :U2 
 protection from discovery by, 3 
 of dismissal of bill, 
 piiis darrein continuance, 402 
 to bill of reviver, 405, 407
 
 822 
 
 INDEX. 
 
 PLEADING, 
 
 in courts of equity, 299 
 at law, 299-301 
 
 in original suit, use of, in supple- 
 mental, 411 
 mistake in, 197 
 PORTION, 
 
 provision 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 
 POSSIBLE INTEREST, 
 assignment of, 54 ; 55 
 POSTEA, 376 
 POSTPONEMENT, 
 
 of day of payment, 127, 128 
 POWER, 
 
 trust in form of, 29 
 in nature of trust, 100 
 to dispose of by will, 95 
 created by way of use, defective exe- 
 cution, 99, 100 
 of sale in mortgage, 121 
 of revocation, may render convey- 
 ance voidable, 146 
 of appointment, abuse of, 185 
 illusory appointment under, 185 
 of sale to pay debts, 255 
 
 See Appointment; Election; Pos- 
 session. 
 PRAYER, 
 
 of process, 302, 310, 311 
 
 how framed, 312 
 in supplemental bill, 414 
 in bill of revivor, 407 
 for relief, 302, 308-310 
 for general relief, 308, 309 
 
 PRAYER continued. 
 for ne exeat, 360 
 to bill of revivor, 407 
 to supplemental bill in case of bank- 
 ruptcy or in- 
 solvency, 409 
 in nature of bill 
 of review, 419 
 
 to bill to impeach or set aside de- 
 cree for fraud, 419, 420 
 PRECATORY WORDS, 
 trust by using, 20, 29 
 PRELIMINARY, 
 
 accounts and inquiries, 380, 381 
 decree, 375, 380 
 
 See Interlocutory Orders. 
 PRESCRIPTION, 
 
 de non decimando, 236 
 de modo decimandi, 236 
 PRESENTATION, 
 
 to church, mortgage of, 120 
 PRESUMPTION, 
 
 of law, trust by, 27, 31, 33, et seq. 
 of waiver, 87 
 
 on purchase in name of another, 101 
 as to successive legacies or gifts, 
 
 103 
 
 against double portion, 104, 105 
 evidence in rebuttal or confirmation 
 
 of, 106 
 
 from enjoyment of tithes, 236 
 PRETENCE, 
 
 charge in bill, 303 
 PRICE. See Purchase. 
 PRINCIPAL, 
 
 liability of, discharge of, 106 
 
 in suit against agent, 220, 221, 222 
 
 and surety, contribution between, 
 
 269, 270 
 
 party to suit against surety, 319 
 money, payment of, within twenty 
 years, 114 
 
 See Agent; Steward. 
 PRINTER, 
 
 Queen's, 214 
 PRIOR, 
 
 mortgage, mortgagor bond to dis- 
 close, 122 
 
 encumbrance, 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
 
 INDEX. 
 
 823 
 
 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, 16 
 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, doctrine of, 167, 168 
 PROFESSIONAL ADVISER, 6, 344, 
 
 370 
 PROFITS, 
 
 made by trustee, account of, 64 
 
 agent, 221, 222 
 
 of partnership, division of, 244, 246 
 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 lega- 
 cy, 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 stq. 
 company, shares in, sale of, 83 
 
 restraining order against, 
 
 358 
 
 trust, suit as to, parties to, 313 
 PUBLICATION, 
 
 in suit to perpetuate testimony, 25 
 of depositions taken de bene esse, 
 
 25 
 
 application to enlarge, 371 
 passing, 367, 371 
 passed, new evidence after, 371 
 PUNISHMENT, 
 
 discovery, leading to, 3 
 PURCHASE, 
 
 parol agreement for, possession un- 
 der, 86 
 
 in name of another, 101 
 without notice, equity originating 
 
 in, 159 
 
 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 to 
 
 discover, 160 
 bill to perpetu- 
 ate testimony 
 against, 162 
 with notice, 273 
 
 of charitable trust, 69 
 having notice of undocketed judg- 
 ments, 155 
 undocketed judgment as against,155
 
 824 
 
 INDEX. 
 
 PURCHASER continued. 
 in possession, 86 
 of realty, right as to title, 87 
 equitable lien of, 122, 126-129 
 how judgments operate against, 131 
 grants void against, 145 
 getting in term, 52 
 having acquired, conflicting rights, 
 
 53 
 
 under trust for sale, 155, 156 
 debtor for his purchase-money, 352 
 
 See Money ; Vendee. 
 QUARRIES, 
 
 working, injunction against, 210 
 QUEEN CONSORT, 
 
 suit as to right of, 313 
 QUO 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, 132 
 
 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, 
 
 &c., to 147 
 
 in administration suit, 259 
 bill for appointment of, 281, 284 
 of the estate of wards, 284 
 lunatic, 293 
 
 duty of, 293, 
 
 294 
 of the estate of lunatic, security by, 
 
 294 
 order for appointment of, 349, 352- 
 
 355 
 
 master to appoint, 380 
 accounts of, 225 
 RECOGNISANCE, 
 person bound by, 123 
 debts by, priority of, 252 
 
 RECOGNISANCE continued. 
 
 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 bilk, 403 
 RECTOR, 
 
 right to an issue as to modus, 377 
 
 cost 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 
 cost 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-EXECUTOIN, 166, 168 
 REFERENCE 
 
 to master, 379-387 
 
 See Arbitrator ; Auditor ; Master. 
 REGISTER 
 
 of judgment, 132 
 
 acts, 153 
 
 See Conveyance. 
 REHEARING, 
 
 generally, 388, 396-401 
 
 on supplemental bill, in nature of 
 review, 419 
 
 and hearing on supplement and 
 
 review, 418, 419 
 REGISTRATION, 
 
 under 1 & 2 Viet. c. 110, 155 
 
 of deed, not notice, 157 
 
 of judgment, not notice, 157 
 RELATIONS, 
 
 trusts for, 29, 66 
 RELATOR, 
 
 bill and information by, 302
 
 INDEX. 
 
 825 
 
 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 Bill. 
 RENUNCIATION 
 
 of trust, how evidenced, 37 
 REPAIR, 
 
 covenant to, 83, 109 
 
 contract to, 83 
 
 mortgagee in possession bound to, 
 
 117, 118 
 
 by co-tenant, 267, 268 
 REPLICATION, 
 eifect 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 reviver 
 and supplement against, 407 
 See Administrator ; Executor. 
 RESCISSION, 175-193 
 RESERVATION 
 
 of rent in lease, 174 
 RESIDUARY BEQUEST, 264 
 
 RESTRAINING ORDER 
 
 as to stocks and dividends, 358 
 RESTS IN ACCOUNTS, 
 
 as to allowing against 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 
 
 general, ascertained, injunction 
 
 granted on bill of peace, 200 
 legal, of plaintiff in injunction suit. 
 tried at law, 217
 
 826 
 
 INDEX. 
 
 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, 
 
 190, 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, 214 
 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 
 property, wife's power over, 45 
 
 SEPARATE continued. 
 
 trust, language creating, 45 
 use, trust for, 43, 44, 289 
 SEPARATION 
 
 deed of, 44 
 SEQUESTRATION, 
 writ of, 325, 394, 395 
 nisi, 326 
 
 in default of answer, 329 
 SEQUESTRATOR 
 
 authorized by writ of sequestration, 
 
 325 
 power of, to seize and dispose of 
 
 documents, 395 
 SERGEANT-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, 132 
 of partners, sale of, 242 
 SHERIFF, 
 
 duties under 1 & 2 Viet. 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 Ad- 
 miralty, 233 
 See Average. 
 SHIP-OWNERS, 
 
 responsibility of, act limiting, 206, 
 
 207 
 
 liberty of, to employ ship, 233 
 SIMONY, 
 
 discovery as to, 3
 
 INDEX. 
 
 827 
 
 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 
 SPEAKING 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, etseq. 
 
 See Specific Performance. 
 SPECIFIC 
 
 allegations in bill, 305 
 chattels, order directing to be de- 
 livered up or secured, 91 
 devise, what is, 265 
 legatee, rights of. to be exonerated, 
 
 265, 275 
 
 SPECIFIC PERFORMANCE, 
 generally, 78-92 
 bill for, receiver on, 354 
 ne exeat on, 3GO 
 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 
 of Frauds, declaration of trust 
 
 under, 27, 28 
 requirements of, not 
 
 complied with, 86 
 plea of, 337 
 
 of Distributions, relations within, 29 
 of Limitations, 173, 227, 258 
 plea of, 337 
 of action and suits, 
 
 69, 234, 235 
 of guardianship, 280 
 of interpleader. 203 
 of Merton, 234 
 of partition, 229, 230 
 of set-off, 222 
 
 as to Court of Chancery, 327 
 service abroad, 327 
 contempts, 394, 395 
 taking bill pro confesso, 326, 
 
 327 
 
 custody of infants, 283, 284 
 property of persons not sui 
 
 juris, 285, 295 
 lunatics, 291, 292 
 traverse of inqaisition, 293 
 joint stock companies, 242 
 submission to arbitration, 192, 
 
 193 
 for improvement of law of evidence, 
 
 363 
 making real estate assets, 253, 254, 
 
 275, 276 
 
 debts by. priority of, 252 
 persons bound by, 123 
 memorial of, 154 
 lectures protected by, 213 
 STEWARD, 
 
 bill for account by, against em- 
 ployer, 221 
 See Agent. 
 STIPULATED PAYMENT 
 
 held penal, 108 
 STOCK, 
 sale of, 83 
 mortgage of, 120 
 fi. fa. cannot operate on, 130, 131 
 judgment, charge on, 132 
 belonging to infant, 286 
 
 lunatic, 296 
 
 transfer of, into court, 352 
 distringas as to, 357, 358 
 See J'ai/mmf into Court. 
 STOCKJOBBING, 
 discovery as to, 6
 
 828 
 
 INDEX. 
 
 STRANGER, 
 
 purchase in name of, 102 
 SUBMISSION 
 
 to arbitration made rule of court, 
 
 statutes as to, 192, 193 
 SUBPCENA, 
 
 writ of, prayer for, 308, 310, 311 
 service of, 324 
 substituted service of, 324 
 to hear judgment, 373 
 to revive suit, prayer for, 407 
 in nature of scire facias, to revive 
 
 decree, 406 
 for costs, 394 
 SUBSTITUTION 
 
 by court of persons to convey, 37, 
 
 39 
 SUBTRACTION 
 
 of tithes, 235, 236 
 SUFFICIENCY 
 of plea, 341, 342 
 of answer, 345 
 SUIT, 
 
 discovery in aid of, 18, 19. 23 
 defence in, discovery in aid of, 9 
 by trustee for direction, 59 
 
 costs of, 64, 
 
 65 
 
 for foreclosure, 112, 113 
 for redemption, 112 
 separate, for administration, 259, 
 
 260 
 
 by one on behalf of himself and 
 "others, 319, 320 
 See Bill; Priorities; Statute of 
 
 Limitations. 
 SUPERSTITIOUS USE, 
 
 trust tor, 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 
 necessarj' 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, 270 
 
 SURETIES continued. 
 
 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, 
 
 enrolment of decree vacated on, 397 
 SURRENDER 
 
 of copyhold, equity for supplying, 
 98, 99 
 
 decree for, 394, 395 
 
 by master, instead of party in con- 
 tempt, 395 
 See Copyhold. 
 SURVIVING 
 
 interest in suit, 404 
 
 See Revivor. 
 TACKING, 
 
 doctrine of, 162-165, 271 
 TAXATION 
 
 of costs, 391 
 TENANTS, 
 
 bill of peace by or against, 199, 200 
 
 interpleader by, 204 
 See Joint Tenants. 
 TENANTS IN COMMON, 
 
 partition bj', 229 
 
 right to receiver of, 354 
 
 See Ship. 
 TENANT FOR LIFE, 
 
 lease by, 3, 4 
 
 waste by, 4 
 
 whether defendant is, discovery as 
 to, 4 
 
 renewal of lease by, 50 
 
 partition by, 230 
 
 and remainderman, suit against, 
 411,412 
 
 decree against, reversal of, 419 
 TENANT IN TAIL, 
 
 leases or conveyances by, 99 
 
 charge paid off by, 270 
 
 party to suit, 315,316 
 
 born pending suit, 411, 412 
 
 bound by previous proceedings, 412 
 TENANT FOR YEARS, 
 
 partition by, 230 
 TENDER 
 
 to save costs, 21, 393 
 TENEMENTS, 
 
 contract of sale of, 85 
 TERMS, 
 
 satisfied attendance of, 51, 52, 159, 
 160 
 
 in gross, 52
 
 INDEX. 
 
 829 
 
 TERMS continued. 
 
 outstanding, assignment of, 159 
 equity to have removed, 249 
 TESTAMENTARY 
 
 assets, administration of, 248-266 
 expenses, what, 261 
 TESTIMONY. See Perpetuation. 
 THEATRE, 
 
 engagement to perform at, 81 
 patent to keep, 213 
 TIMBER, 
 
 directions for preservation of, 43 
 cut by guardian or trustee, 142, 143 
 
 stranger, 143 
 mortgagor restrained from cutting, 
 
 114 
 
 felling, injunction against, 210 
 blown down by accident, 143 
 
 See Waste. 
 TIME 
 
 to make out title, 85, 87, et seq. 
 
 not of essence of contract, 88 
 
 for payment, contract to give, 107, 
 
 126,' 127 
 
 applications for, to master, 380 
 TITHES. 
 
 jurisdiction as to, 235, 236, 237 
 bill of peace as to, 199 
 subtraction of, 235, 236 
 Commutation acts, 237 
 
 See Modus. 
 TITLE 
 
 to real estate, in bill for specific 
 
 performance, 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 mort- 
 gagee, 115 
 
 deposit of mortgage by, 123-125 
 right of detainer of. 124 
 notice as to, -158 
 possession of, protection by, 160 
 TORT. See Injunction against. 
 TRADE, 
 
 trust fund used in, 64 
 secret of, injunction against use of, 
 216 
 
 TRANSFER 
 
 of trust, 32, 53 
 
 of equitable interest, 53 
 
 of interest in suit, effect of, 408-410 
 
 of stock, restraining order as to, 
 358 
 
 when breach of trust, 38 
 
 substantial, for specific perform- 
 ance, 90 
 
 decree for, 394, 395 
 
 by master instead of party in con- 
 tempt, 305 
 TRANSITU, 
 
 stoppage in, may be enforced in 
 
 equity, 127 
 TRAVERSE, 
 
 matter of right, 293 
 
 of inquisition, 292 
 
 general, in answer, 343 
 
 special, in answer, 344 
 
 of statement in bill of review, 418 
 TRAVERSING NOTE, 329 
 TREASON. See Attainder. 
 TRESPASS, 
 
 action of, 91, 209 
 
 remedy at law for, 209, 210 
 
 as to mine or colliery, injunction 
 
 against, 247 
 
 See Destructive Trespass. 
 TRESPASSER, 
 
 at law, 86 
 
 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 equity, 62,81, 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
 
 830 
 
 INDEX. 
 
 TRUSTEES continued. 
 
 authorized by court, act by, 143 
 conveyance by substitution to, 37, 81 
 trusts shall not fail for want of, 36 
 how may divest themselves of trust, 
 
 37, 38 
 
 may deal with cestui que trust, 60,184 
 for sale, 155 
 
 or purchase, sale or pur- 
 chase by, 60, 183, 184 
 of ward, 284 
 of stock, moneys, &c., 39 
 attainder of, 50 
 
 on death of cestui que trust, 50 
 death of, without heirs, 50 
 notice to, of conveyance, 161 
 
 of transfer, 53 
 person in nature of, 352 
 when executor is, 251, 252 
 
 purchaser is, 352 
 property unduly changed by, 142, 
 
 143 
 enjoined from committing breach of 
 
 trust, 207 
 
 inquiry as to wilful default of, 221 
 promise by legatee to stand, 248 
 consent of, to marriage, 186 
 ejectment by, 194 
 parties to suit as to breach of trust, 
 
 319 
 representing cestui que trust in suit, 
 
 316, 317 
 
 suit against, parties to, 318 
 right of, as to costs, 61 
 cost of in suits for performance of 
 trusts, 390 
 
 See Conversion. 
 TRUST, 
 
 generally, 26-76 
 
 acceptance of, how evidenced, 37 
 
 mortgage of, 122 
 
 deed in nature of mortgage, 122, 126 
 
 to pay debts, 255 
 
 notice of, effect of, 152 
 
 set-off in case of, 223 
 
 estate of debtor, operation of elegit 
 
 on, 131 
 
 made assets, 254 
 title to, how perfected in 
 
 equity, 160, 161 
 disentailing of, 50 
 in an infant, 285 
 suits for performance of costs of, 
 
 390, 391 
 concealment of ground for bill of 
 
 review, 419 
 equity under, 149 
 operation, under, of equitable con- 
 version, 135, et seq 
 
 TRUST continued. 
 
 countermanded, a reconversion, 136, 
 
 137 
 
 See Conversion ; Declaration ; Stat- 
 ute of Frauds. 
 UNCERTAINTY, 
 
 gift void on ground of, 69 
 UNDERWRITERS, 
 
 contribution between, 269 
 
 See Average. 
 UNIVERSITIES, 
 
 privilege of, 331 
 
 privileges of, as to printing and 
 
 copyright, 214 
 
 UNSOUND MIND. See Persons of. 
 USURIOUS CONTRACT, 
 
 discovery as to, 3 
 USE. See Separate Use. 
 USEFUL OBJECTS, 
 
 trusts for, 65 
 VALIDITY, 
 
 of patent, 213 
 
 of will of personal estate. 248 
 
 real estate, 249 
 VALUE, 
 
 rent below, notice of 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, &c., 74, 75 
 
 being trustee, 75 
 VOLUNTARY 
 
 conveyance, &c., 153 
 
 gift, 147 
 
 equity under, 149 
 
 grant, 146 
 
 promise, 79 
 See Bounty.
 
 INDEX. 
 
 831 
 
 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. 
 WARDSHl'P, 
 
 incidents of, 281 
 WARRANT 
 
 of master, 382, 383 
 
 for preparing report, 383, 384 
 WARRANTY, 
 
 representation by way of, 178, 179 
 WASTE, 208, 209, 355, 356 
 WELSH MORTGAGE, 122, 125, 126 
 WEST INDIAN MORTGAGE, 112 
 WIDOW 
 
 entitled to dower, bound to elect, 94 
 
 right of, as to revivor, 404, 405 
 WIFE. 
 
 duty of maintaining, 97 
 
 chose in action of, assignment of, 
 142 
 
 right of survivorship of. 142 
 
 See Feme Covert. 
 WILFUL DEFAULT, 
 
 inquiry as to, against trustee, mort- 
 gagee or agent, 221 
 WILL, 
 
 validity of, jurisdiction as to, 175, 
 248 
 
 jurisdiction to declare, established, 
 249 
 
 trusts created by, 27, 249 
 
 resulting trusts by, 32 
 
 mistake in, 172 
 
 to be registered. 153 
 
 proof of execution of, on issue di- 
 rected, 249, 250 
 
 fraud used in obtaining, 175, 248 
 
 execution of power by, 100 
 
 of feme covert jtrdicially non-exist- 
 ent, 93 
 
 construction of, as to trusts, 41, 42 
 
 bill to perform trusts of, 249 
 
 WILL continued. 
 
 bill to 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 
 
 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 
 
 delivery of, 131 
 
 Sec Elegit ; Fieri Facias. 
 WRITING, 
 
 trust by, 28, 143 
 
 agreement in, under Statute of 
 Frauds, 85, 86 
 
 instrument in, extrinsic evidence as 
 to, 103, 104 
 
 THE END.
 
 UC SOUTHERN REGIONAL LBRARY FACIUTY 
 
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