CALIFOfyv ^OFCAUFOJ?^ ^EUNIVER% ^clOS-ANCtU^ avH«n-# ^Aavaan# %iwsoi^ %aMiMmv ^0F-CA1!F(% ^OFCA r— uj ^Awaanv^ y o-xw UNIVER5//, o JDWSOI^ ^lOSANGFlfj^ "%3AIN!H\W ^UIBRAIMK 5JK4JNIVER% %13DNY-S0V^ UNIVEN//) o JONVSOl^ ^•lOSANCnfj^ "^maim-jv^ ^OF-CAUFOMfc 0% ^Aavnen# >&ahvmih^ WtfUNIVERSV/, ^JUDNYSOl^ avIOS-A ill «$UIBRARY0/: ^10 r713QNVSOl^ ^UIBRARYQr ^UIBI %MI1V>J0*' ■CAllFOftjfc «f ^0FCAIIF(% % y ^OFCA y ^/MAINIHW^ 5 -f ft Q I , ^fOJnV3-JO->" ^OJIIVJJO^ 3jhyh&> ^ojuvdjo^ ^i»soi^ ^wim^ ^UIBRARY^ %Q. [35= ; uui riw^ y 0AHVH8nV ir- 5 1/- ^OFCAIIF ^f% ^M'NIVFR^ %)JI1VJ : WSfy "^maim-jv^ l *^lOSANGfl£jv 2 i/*%—>$ o N(HWV N <^U!BR' %)JITVDJ0> ^OFCAUFO^ y 0AHVH8l1# jo^ <\\U-UNIVM/A >- %TOS0V^ ^ l £0e f)orn6ooft * xit * Of elementary treatises on all the principal subjects of the law. The special features of these books are as follows: 1 @ succinct statement of feaoing jmncipfee in fifacfo fetter %e. # , 2. (ft more ertenoeo commentary efucioatmg t0e principles. 3. (Note 6 ano authorities. Published in regular octavo form, and sold at the uniform price of $3.75 per Dofume, incfuoing oefitjerg. 1. 2. 3- 4 5- 6. 7- 8. 9- o. 1 . 2. 3- •; 6. :• 9 :o 2 I : 2 *5 Norton on Bills and Notes. (3d Edition. ) Clark's Criminal Law. (2d Edit on.) Sktpman's Common- Law Pleading- (2d Edition.) Clark on Contracts. Black's Constitutional Law. (2d Edition.) Fetter on Equity. Clark on Criminal Procedure. my on Sates, 's International Law. ird on Torts. (2 vols.) ;• on Interpretation of Laws. Ha e on Bailments and Carriers. Smith's Elementary Law. Ha e on Dan: ns on Real Proper! v. Hale on Torts. \ny on Persons and Domestic Relations. on Executors and Administrators. Clark on Corpi rations. George on Partnership. ■man on Equity Pleading. .!/, /. n Evidence, 'ice. es on Admiralty. .- Equity. In preparation: II a . oks of the law on other subjects to be announced later. rfoufifisflefc ano for eaf'c 6g met (puBfteging Co., git. (pauf, (Minn. E80.19 HANDBOOK OF EQUITY JURISPRUDENCE BY NORMAN FETTER St. Paul, Minn. WEST PUBLISHING CO. 1895 COPTKIGHT, 1895, BY WEST PUBLISHING COMPANY. PREFACE. The system of equity jurisprudence, created by the English chancellors, and developed by English and American courts of equity, will always be a fascinating subject of study for the lawyer. It has its roots in social conditions which have long since passed away, — when the clergy were supreme in the administration of sec- ular as well as of spiritual affairs. Down to the time of the Reforma- tion, one hundred and sixty prelates, in aD almost unbroken succes- sion, were elevated to the office of lord high chancellor of Eng- land. In influence and authority, political as well as judicial, they stood without a rival, save the king. Enjoying an almost complete immunity from secular control, and intrusted even with the nomina- tion of the common-law judges, it is not strange that these dignified ecclesiastics should have succeeded in establishing a court, consti- tuted in effect of one man, the lord chancellor, having for its ob- ject the correction of the common law, though at the very time there existed a legislature, consisting of the king, lords, and commons, charged with the duty of amending the law, and securing its due ad- ministration. 1 The personal conscience of the chancellor, and the principles of morality as declared in the Bible, supplemented by the rules of the Roman law, constituted the primitive equity jurisprudence as ad- ministered by the ecclesiastical chancellors. ~So reports of their de- cisions ever existed; and but few of them — and these with perhaps not altogether friendly motives — are preserved in the Year Books. One of them is here quoted to show the wide gulf which separates the modes of thought and reasoning of the ecclesiastical chancellors from those of their modern successors. Lord Chancellor, Archbishop Morton, is reported to have delivered himself as follows concern ing an executor who had wasted the assets of an estate: "I know that the law is or ought to be according to the law of God; and the 1 1 Spence, Eq. 355, 356. (iii) eq.juk. 72967? PKEFAl E law of God is thai an executor who is evilly disposed shall not expend all the goods; and this 1 know that if he do so, and do not make amends if he can, he will be damned in hell." 2 With the advenl of the lay chancellors, learned in the common law. and fully alive to the fact that uncertainty of the law is the obstacle to the due administration of justice, there was de- veloped a practically aew system of equity jurisprudence, with prin- ciples ;is axed and ;is definite as those of the common law itself. state clearly those principles as they now obtain, with their proper qualifications and limitations, to sketch their developement whenever accessary to their comprehension, to illustrate their ap- plication by brief statements of decided cases, and to clothe the whole in a garb which will attract, rather than repel, the student, have been the objects in view during the composition of this book. That the performance falls far short of these ideals is apparent from even a cursory examination of the following pages. In the preparation of the book, the researches and labors of others have been freely drawn upon. Among the books that have been spe- cially helpful arc Smith's Principles of Equity, Snell's Principles of Equity, Baynes' Outlines of Equity, and Underbill's Concise Guide to Equity, — all English works designed principally for students' use, Cerley'a History of Equity, an historical sketch published in England in L890, and Spence's Equity, have been my chief guides as to historical matters touching the introduction and development of the leading principles. The American works of Story, Pomeroy, and Beach have been freely consulted; and so have the standard text-books on Bpecial topics, such as Lewin and Perry on Trusts, Kerr and High on Injunctions, Jones on Mortgages, and Kerr on Fraud and Mis- take. N.F. Paul, Jan. 18. 1885. . klq. 57b; Year Books, 4 Hen. VII. fol. 5. TABLE OF CONTENTS. CHAPTER I. NATURE AND DEFINITION OF EQUITY. Section Page 1. Equity Defined 1-7 CHAPTER II. PRINCIPLES DEFINING AND LIMITING JURISDICTION. 2. No Jurisdiction over Crimes 8-10 3. No Jurisdiction Where the Legal Remedy is Adequate 10-11 4. Jurisdiction not Divested by Enlargement of Legal Remedy. . 11-13 5. Jurisdiction Retained to Award Complete Relief 13-15 6. Assumption of Jurisdiction to Prevent Multiplicity of Suits. . 15-18 CHAPTER III. THE MAXIMS OF EQUITY. 7. Definition and Classification of Maxims 19-20 8. Enabling Maxims — No Right without a Remedy 20-23 9. Equity Regards Substance Rather than Form 23-25 10. Equity Looks on That as Done which Ought to be Done. . 25-27 11. Equity Imputes an Intention to Fulfill an Obligation. .. . 27-28 12. Equity Acts in Personam, and not in Rem 28-31 13. Equity Acts Specifically, and not by Way of Compensa- tion 31 14. Equality is Equity 32-33 15. Restrictive Maxims— Equity Follows the Law 33-34 16. Where Equities are Equal, the Law will Prevail 35-36 17. Where There are Equal Equities, the First in Order of Time shall Prevail 36 18. He Who Seeks Equity must do Equity 36-38 19. He Who Comes into Equity must Come with Clean Hands 38-42 20. Equity Aids the Vigilant, not Those Who Slumber on Their Rights 42-44 EQ.JTJR. (V) \i TABLE OF CONTENTS. CHAPTER IV. THE DOCTRINES OP EQUITY— ESTOPPEL, ELECTION, SATISFAC- TION. PERFORMANCE, AND CONVERSION. Pag« 21. Equltab pel 45-47 Baa ntial Elements 47-50 Es ppel 50 24. 50-52 Conditions Requiring Election 52-54 •_■•;. Election between Dower aud Testamentary Gift 55 27, Mode of Election 55-50 Ascertainment of Values 50 ".1. Election by Persons under Disability 57 ion 58 ;ion 58-50 ;:i Admissibility of Evidence as to Intention 59 Classification GO - isfaction of Debt by Legacy, etc 60-61 38. Double Provisions for Child by Parent or Person in Loco Parentis 61 Ademption 61-63 40. Person in Loco Parentis 63-64 41. Presumption in Favor of Ademption 64-65 Covenant to Make Settlement Followed by Testamentary Provision 65-60 43. Performance 66-67 4i slon 67-68 4.". Words Sufficient to Work a Conversion 68-60 40. Time of Conversion 60-71 47. Effect of Conversion 71-75 Total or Partial Failure of Purposes for which Con- n is Directed 76-78 Double Conversion 78 51. .version 79 CHAPTER V. DO< TRINEfi OP EQUITY (Continued)— CONFLICTING RIGHTS OF PURCHASERS, ASSIGNEES. ETC. 52. Notice ition 80-31 81 54. Actual Notice 81-S3- TABLE OF CONTENTS. SectioD Page 55. Constructive Notice 83-S4 56. Notice of Fact is Notice of Cause 84-85 57. Possession as Notice 85-80 58. Recitals in Title Papers 87-88 59. Notice to Ageut 8S-90 60. Notice by Record 90-92 61. Lis Pendens 93-95 62. Bona Fide Purchasers 95-98 63-67. Priorities— Unequal Equities 98-103 68-70. Equal Equities 103-106 CHAPTER VI. DOCTRINES OF EQUITY (Continued)— PENALTIES AND FORFEITURES. 71. Penalties and Forfeitures 107-108 72. Penalty or Liquidated Damages 10S-111 73. Statutory Penalties Ill 74. Enforcing Forfeiture 112 CHAPTER VII. GROUNDS FOR EQUITABLE RELIEF. 75. Accident ' 113-114 76. When Relief will be Granted 114-117 77. Mistake 117-118 78. Classification 118 79. Mistake of Law 118-121 80. Mistake of Fact 122 81. Fundamental Mistake 122-125 82. Unilateral Mistake as to Subject-Matter 125-127 83. Mistake of Expression 127-130 84. Fraud 130-131 85. Classification 132-133 86. Actual Fraud 133 87. Wrongful Acts or Misrepresentations 133-137 88. Wrongful Omissions 137-139 89. Rights and Duties of Defrauded Party 139-140 90. Inequitable or Unconscientious Transactions— Presump- tion of Fraud from Nature of Transaction 140-142 91. Fraud Presumed from Position or Condition of Par- ties 142-143 TABLE OF CONTENTS. Page Contracts with Persons under Mental Disability or Duress 143-145 Contracts between Persons in Fiduciary Rela- tions 145-151 94 Gifts between Persons in Fiduciary Relations 151-153 95. Frauds on TMrd Persons 153-154 Q& Composition With Creditors 154-155 97, Fraudulent Conveyances 155 Essential Elements of Fraudulent Conveyance 155 The Creditor 156-157 LOO. Intent to Defraud 157-158 mi. Transfer of Property 159-160 102. Frauds on Marital Rights 160-161 Ki3. Frauds OD Powers 161-102 CHAPTER VIII. PROPERTY IN EQUITY— TRUSTS. in}. Definition and History of Trusts 103-168 105. Classification of Trusts 108-169 IOC Express Private Trusts 109 107. Parties 109 ins. The Settlor 109-170 109. The Trustee 170-171 110. Cestui Que Trust 171-172 111. What Property Subject to Trust 172 112. Creation of Trust 172-174 1 13. Words Essential to Create Trust 174-175 111. Consideration to Support Trust— Voluntary Settle- ments 175-179 115. The Object Proposed by the Trust 179-1S2 Lft Interpretation of Trusts 182-184 120. Nature of Cestui Que Trust's Estate 184 1-1. Passive Trusts 184-185 122. Active or Special Trusts 185-1SG 123. Public or Charitable Trusts 180-190 1LM. Resulting Trusts 191 125. Classification 191 Parting with Legal and Retaining Equitable Interest 191-194 127. Purchase iu Name of Third Person 194 Purchase in Name of Stranger 194-197 129- Purchase in Name of Wife, Child, or Near Relative. .197-198 130. Constructive Trusts 198-200 TABLE OF CONTENTS. IX Section Pai?e 131. Duties and Liabilities of Trustees 200 132. Getting in Outstanding Trust Property 200-201 133-134. Custody and Care of Trust Property 201-203 135. Investments 203-204 136. Liability for Acts of Cotrustee 204-20(3 137. Compensation 200-207 138. Remedies of Cestui Que Trust— Following Trust Estate 207-209 139. Personal Remedies 209-210 140. Removal of Trustee 210-211 CHAPTER IX. PROPERTY IN EQUITY (Continued)— MORTGAGES, LIENS, AND ASSIGNMENTS. 141. Real-Estate Mortgages 212-210 142. Absolute Deed as Mortgage 216-217 143. Conditional Sale or Mortgage 217-218 144. Assignment of Mortgage 218-219 145. Transfer of Mortgaged Land 219-220 146-147. Foreclosure of Mortgage 220-223 148-149. Redemption 223-225 150-151. Mortgages and Pledges of Personalty 226-227 152. Equitable Liens 227-228 153. Equitable Mortgages 228-230 154. Liens Based on Considerations of Justice 230-231 155. Vendor's Lien 231-236 156. Vendee's Lien 236 157. Charges of Debts and Legacies 236-238 158-159. Assignments 23S-239 160. What Assignments Now Recognized at Law 239-241 161-162. Equitable Assignments 241-245 163. Assignment Subject to Equities 245-216 CHAPTER X. EQUITABLE REMEDIES— ACCOUNTING— CONTRIBUTION— EXONER- ATION— SUBROGATION AND MARSHALING. 104. Accounting 247-249 165-167. Application of Payments 249-252 168. Contribution 252-253 169. Exoneration 253-254 170. Subrogation 254-256 171. Marshaling 256-258 X TABLE OF CONTENTS. CHAPTER XI. EQUITABLE REMEDIES (Continued)— PARTITION AND BOUNDARIES. Hon Pa Ke 172. Partition 259-200 i:::. Who Entitled to Partition 260-202 171. What is Subject to Partition 262-2G3 17.".. Settlement of Boundaries 203-264 CHAPTER XII. EQUITABLE REMEDIES (Continued)— SPECIFIC PERFORMANCE. 176. Definition and Contracts Enforceable 2G5 177. Inadequacy of Damages 2G5-2G7 Contracts Relating to Personal Acts 2G7-270 1 7'.>. Grounds for Refusing Relief 270 ISO. Defenses Having Same Effect at La-v and in Equity 271-272 181. Defenses Confined to Specific Performance 272-275 Defenses Producing Different Result than at Common Law 275-279 smtute of Frauds as a Defense 2S0-2S3 184. Specific Performance with a Variation 2S3-287 CHAPTER XIII. EQUITABLE REMEDIES (Continued)— INJUNCTION. 185. Definition 288-2S9 186. Jurisdictional Principles 289-290 1 87. Classes of Cases Where Remedy may be Used 290-291 1 B8. Injunctions against Proceedings at Law 291-294 180. Injunctions Relating to Contracts 294-29G 190. Injunctions Relating to Torts 297 181. General Principles Governing Exercise of Jurisdiction. ..297-299 192. Classes of Torts Enjoined 299-311 198. Injunctions Relating to Trusts and Equitable Rights 312-313 CHAPTER XIV. REFORMATION, CANCELLATION, AND QUIETING TITLE. 194 Reformation ..314-315 196. Cancellation :;i.">-31G 106. Removing Clond on Title 316-317 TABLE OF CONTENTS. xi CHAPTER XV. ANCILLARY REMEDIES. Section Page 197. Discovery 318-322 198. Bills to Perpetuate Testimony 322-323 199. Examination of Witnesses de Bene Esse 324 200. Ne Exeat 325 201. Interpleader 320-327 202. Essential Elements 327-329 203. Receivers 330-331 204. In What Cases Receivers will be Appointed 331-335 t HANDBOOK OF EQUITY JURISPRUDENCE. CHAPTER I. NATURE AND DEFINITION OP EQUITY. EQUITY DEFINED. 1. As understood in English, and American jurispru- dence, equity may be denned to be that portion of natural justice, susceptible of judicial enforcement, "which was either not recognized at all by the common law, or only inadequately enforced by reason of its cramped procedure.' In its largest sense, equity is synonymous with natural justice. But it was early found that there are many cases against natural justice which cannot be conveniently corrected by any human court, i See Maitland, Justice & Police, 38, 39; Snell, Eq. p. 2; Haynes, Eq. p. 7. Pouieroy (Eq. Jur. § G7) defines equity as "those doctrines and rules, primary and remedial rights and remedies, which the common law, by reason of its fixed methods and remedial system, was either unable or inadequate, in the regular course of its development, to establish, enforce, and confer, and which it therefore either tacitly omitted or openly rejected." Bigelow (Eq. p. 9) says: "The jurisdiction of courts of chancery now extends to all civil cases, proper in good conscience and honesty for relief or aid, as to which the pro- cedure of the common-law courts is unsuited to give an adequate remedy, or as to which the common-law courts, when able to extend their aid, have re- fused to do so." Judge Phelps, of Baltimore, Md., defines equity as follows: "By juridical equity is meant a systematic appeal for relief from a cramped administration of defective laws to the disciplined conscience of a competent magistrate, applying to the special circumstances of defined and limited classes of civil cases the principles of natural justice, controlled in a measure as well by considerations of public policy as by established precedent, and by positive provisions of law." Phelps, Jurid. Eq. p. 192. Other winters, following the lead of Justice Story, have defined equity by reference to the court in which it was anciently administered. Thus, Bispham (Eq. p. 1) states that equity kq,jur. — 1 NATURE AND DEFINITION OF EQUITY. [Ch. 1 and which must be left to the conscience )f the party offending. 11, arte of DO civilized country can or do undertake to en- I he various obligations of gratitude, kindness, or charity; 2 nor will they exen Lse their powers for the enforcement of right or pre- tention of wrong in the abstract. 3 Even positive contract obliga- tions barred by the statute of limitations, and promises not founded ,.ii a valid consideration, are not enforceable either at law or in equity/ tin, a large portion of natural equity or justice is enforced in the courts of law, and is excluded from the domain of equity juris- prudence, technically so called. It is no exaggeration to say that the principles of Hie common law are or were originally grounded on reason and justice. 5 Certainly, in applying those principles to new i onditions of society in this country, courts of law have been avow- edly controlled by considerations based on the welfare of the com- munity, and by reasons founded on the actaal facts of life. They have therefore enforced only such portions of the common law of England as are suited to our changed conditions; 8 and perhaps it is that system of justice which was administered by the high court of chan- ln England, in the exercise of its extraordinary jurisdiction." See, also. Story. I-'l- -Tur. (13th Ed.) g 25. R( . a v city of Watertown, 10 Wall. 121; Green v. Lyon, 21 Wkly. Rep. 830. odrich v. Monro. 2 Minn. Gl (Gil. 49). stor v. Ulman, 64 Md. 526, 3 Atl. 113; Dunphy v. Ryan, 116 U. S. 498, 6 Sup Ct i v, '> i statute of frauds is as binding on courts of equity as on courts of law. except when it is being used as an instrument of fraud). See, post U t" statute of limitations. ■ Thus, Blackstone says: "The [common] law is the perfection of reason; it always intends to conform thereto; and what is not reason is not law\" i to say: "Not that the particular reason of every rule in the law can at this distance of time be always precisely assigned; but it Is suffi- iiat there be nothing in the rule flatly contradictory to reason, and then v will presume it to be well founded." 1 Bl. Comm. p. 70. In Hurtado 110 U. S. 530, 4 Sup. Ct. Ill, 292, Justice Mathews says: "The iity and capacity for growth and adaptation is the peculiar boast and ex- cellence of the common law." Austin Abbott, in a paper read before the American Bar Association :i 1893, says that American jurisprudence "is not the jurispru- m of commands; it. is the jurisprudence of common welfare, reasoning upon the actual facts of life. American juris- tually administered to-day, is the jurisprudence of the common- Ch. 1] EQUITY DEFINED. 3 would not be going too far to say that they have also in some re- spects created a new American common law, which is suited to our conditions. 7 The question, then, naturally arises, why did not courts of law afford relief in all cases judicially cognizable? This is a matter of history, rather than of principle. Most of the modern writers on equity jurisprudence find in the inflexible, inelastic, and cramped procedure of the common-law courts the chief cause for their in- ability to bring within their jurisdiction all cases requiring judicial interference. 8 It is true that an action at common law could be commenced only by virtue of the king's writ, issued out of chancery, an office over which the chancellor presided; that, in the course of time, every species of civil wrong cognizable at common law had its particular writ; and that, unless the wrong could be referred to an appropriate writ, the party was without a remedy at law. To remedy this evil, parliament, in the reign of Edward I., passed a statute (13 Edw. I. St. 1, c. 24) having for its object the adaptation of wealth. * * • The great mass of the business of our courts to-day turns up- on questions not wholly foreclosed by the history of the past. The question, what is the traditional law that has come down to us? is still asked; but an- other question is always open, viz. does our situation to-day suggest the wisdom of a deviation from that traditional law? The keynote of this good change was struck when our courts determined that, notwithstanding the unqualified adop- tion of the English common law by our constitutions, they would apply and en- force only so much as is suited to our condition. From that time forward it has always been for a court of last resort a legitimate inquiry, what rule on the subject under consideration is suitable to the condition of our people? and a legitimate course to disregard common-law rules whenever unsuitable, and to considt the common welfare of the people, as sound premises for the decision of any question not foreclosed by statutory authority." Am. Law Rev. 1893, pp. 803, 804. i Thus, by the common law of England only such streams as are subject to the ebb and flow of the tide are deemed navigable waters; by the Amercian common law, as announced by the courts, all waters capable of being used in their natural state for the purposes of commerce or trade, or even pleasure, are deemed navigable. s Haynes, Eq. pp. 8-15. Professor Pomeroy ascribes the necessity for a separate equity jurisprudence to the "rigid character, external and internal, which the common law assumed after it began to be embodied in judicial precedents, and to the unreasoning respect shown by the judges for their de- cisions merely as precedents." 1 Pom. Eq. Jur. § 16. NATURE AND DEFINITION OF EQUITY. [Ch. 1 the old forma of write "to like cases requiring like remedy," but not , ,| by i xisting writs. Under this statute, during the course of centuries, the judges, by taking certain of the old writs as start- in- points, and accumulating successive variations on them, added areas to the common law, and many of its most famous ac- tiuits. such as assumpsit and Mover and conversion, were developed in this way. It is often alleged that the common-law judges obstinately re- fused to avail themselves of the opportunity afforded them by this statute to extend their jurisdiction to all civil cases requiring judi- cial redress. This allegation, however, ignores one of the main springs of human action, — the acquisition of power and its con- comitanl emoluments; and it also assumes that the common-law courts were intended to supply a remedy for the violation of every right recognized by the municipal law. In the earlier history of England, the compensation of the com- mon-law judges depended on the fees paid into their courts by suitors, and all human experience is contradicted by the assumption that they obstinately and perversely thrust from themselves new business legitimately falling within their jurisdiction. That they had no such scruples is attested by the facts that, by means of ficti- tious allegations in pleadings, the court of exchequer and the court of king's bench raided the jurisdiction of the court of common pleas;* and that, by similar means, all three of the common-law courts joined in a raid on the jurisdiction of the court of admiralty. 10 The truth seeMis to he that the. common-law courts were never in- tended to offer a remedy for every civil wrong. It is certain that, • Thr- exchequer bad jurisdiction of civil cases only where plaintiff was a • of the king, and the defendant had done a wrong or injury by which tT w:is less able to pay the king his debt. Whenever the declaration racb an allegation, defendant was not permitted to deny its truth, court was open to all the nation equally. 3 Bl. Conim. 45, 4G. The '8 bench assumed jurisdiction of all civil cases on the ficti- llegatlon that defendant was an officer of this court, or in custody of .1 or prison keeper. Id. 42. of admiralty originally had jurisdiction of all matters occurring but the courts of common law would assume jurisdiction living contracts made on the high seas whenever plaintiff fic- 4 that they were made on land. 3 Bl. Comm. 107. Ch. 1] EQUITY DEFINED. 5 even in the days of their infancy, their work was supplemented by the ecclesiastical courts, which exercised jurisdiction, not only in cases of marriage and testament, but also, down to the time of Edward L, in cases where the faith of the party was pledged and broken. Then, too, the jurisdiction of the common-law courts was supplemented by the judicial power of the king and his council. The power to personally decide disputes between their subjects would probably have been the last of the prerogatives of the early Norman kings that would ever have been called in question. Not only did they decide causes without reference to the courts at all, but they also entertained appeals from the decisions of these tri- bunals, and sometimes they directly interfered with causes pending therein. 11 In the course of time, when foreign wars and domestic politics came to occupy the attention of the later Plantagenets, these judicial functions were delegated to their councils, — a body of per- manent salaried officials, the most important of whom was the chancellor, who presided in it and directed its business. Here was the origin of the chancellor's equitable jurisdiction, for petitions craving the aid of the king and his council were continually referred to the chancellor for consideration, until the reference became so much a matter of course that ultimately petitions were addressed directly to him in the first instance. Down to the fall of Cardinal Wolsey, in 1529, the office of chan- cellor, with a few unimportant exceptions, had been filled by the great clerics of the kingdom, who were also in most cases at the head of the chief ecclesiastical court of the realm. It was only natural, therefore, when the chancellor's judicial powers in lay matters became established, that he should adopt a procedure modeled after that of the ecclesiastical courts. Since the ecclesias- tical courts had no jurisdiction over property, their decrees were enforced by sentences of excommunication; and, if the party proved contumacious, a writ de excommunicato capiendo was issued, which 11 In a History of Equity, written in 1890, by D. M. Kerley, on chapters 1 and 2 of which work the present sketch is largely based, are given many in- stances of the exercise of judicial functions by the king. Parliament also assumed the power of deciding causes, and an instance is of record where a dispute occurred between parliament and the judges upon a point of law. Introduction to Year Book, 13 & 14 Edw. III., Pike, p. xxxvii. NATURE AND DEFINITION OF EQUITY. [Ch. 1 his arrest and imprisonment by the secular authorities. . the chancellor likewise cni... red his decrees and orders by D personam, and, as a rule, he disclaimed jurisdiction in Here was the root of the peculiar equitable remedies, such motion and Bpecific performance; for, by enforcing his decrees I irson, the chancellor had the power of compelling the to do or refrain from doing what was therein commanded. The ion-law courts, od the other hand, whose judgments were en- ,1 primarily out of the property of the unsuccessful litigant, powerless in this class of cases. Hence, in the development of its jurisprudence, equity assumed jurisdiction in many cases where the common law recognized a right, but for the violation of which it furnished uo adequate remedy. But, as has been shown in the foregoing sketch, the origin of the equity Bystem of jurisprudence lies not so much in the inadequacy of tli-- remedies and the procedure of the common-law courts as in the fact i har mat i cis of "grace and conscience," as they were called in the early days, were never considered as falling within the scope of the common-law jurisdiction. The equitable jurisdiction over -. for instance, does certainly not rest on defects in the reme- or procedure of the common law. The early chancellors, as has already been observed, were ec- clesiastical dignitaries, and they possessed immense political power. \'-\t to the king, my lord chancellor w r as undoubtedly the greatest man in the kingdom. For many centuries their equitable jurisdic- tion remained untrammeled by any definite rale. In the language llackstone, 18 the decrees of the court of chancery down to the reign of Elizabeth were "rather in the nature of awards formed • •n the sudden pro re nata, with more probity of intention than knowledge of the subject, founded on no settled principles, as being never designed and therefore never used for precedents." 13 But, BL Comm. 3. on as to the power of the chancellor is shown by the defini- tions of equity given by the older text writers. Thus, in FY>n- D Equity It is said (book 1, c. 1, § 3): "So there will be a necessity to natural principles, that what is wanting to the finite may l*> supplied out of that which is infinite. And this is properly what is lity, in opposition to strict law. * * * And thus in chancery every particular case Btanda upon its owu particular circumstances; and, although Cll. 1] EQUITY DEFINED. 7 in the course of time, judicial equity became crystallized and de- fined; principles and doctrines were formulated which, form the basis of all decisions; and courts of equity have, as regards these principles and doctrines, no more discretionary powers than courts of common law. 14 In fact, it may be said that, for a long time past, judicial equity has been as positive and well settled a body of rules as the common law itself. 15 This distinction is, however, to be kept in mind : "The rules of courts of equity are not, like the rules of the common law, supposed to have been established from time immemorial. * * * [In many cases] we can name the chan- cellors who first invented them, and state the date when they were first introduced into equity jurisprudence, and therefore in cases of this kind the older precedents in equity are of very little value. The doctrines are progressive, refined, altered, and im- proved; and, if we want to know what the rules of equity are, we must look, of course, rather to the more modern than the more ancient cases." 16 the common law will not decree against the general rule of law, yet chancery doth, so as the example introduce not a general mischief. Every matter, there- fore, that happens inconsistent with the design of the legislator, or is contrary to natural justice, may find relief here." To this stage of its development the famous criticism of equity by Selden well applies: "Equity is a roguish thing. For law we have a measure, and know what we trust to. Equity is according to the conscience of him that is chancellor; and, as that is larger or narrower, so is equity. 'Tis all one as if they should make his foot the stand- ard for the measure we call a chancellor's foot. What an uncertain measure would this be! One chancellor has a long foot, another a short foot, a third an indifferent foot. 'Tis the same thing in the chancellor's conscience." Table talk, tit. "Equity." 14 In Gee v. Pritchard (1818) 2 Swanst. 402, Lord Eldon said: "The doctrines of this court ought to be as well settled, and made as uniform almost as those of the common law, laying down fixed principles, but taking care that they are to be applied according to the circumstances of each case. I cannot agree that the doctrines of this court are to be changed with every succeeding judge. Nothing would inflict on me greater pain, in quitting this place, than the recollection that I had done anything to justify the reproach that the equity of this court varies like the chancellor's foot." is Wright v. Ellison, 1 Wall. 16, 22. 16 Jessel, M. R., in Re Hallett's Estate, 13 Oh. Div. 696, 710. 3 PRINCIPLES DEFINING AND LIMITING J UKISDICTION. [Ch. 2 CHAPTER II. PRINCIPLES DEFINING AND LIMITING JURISDICTION. \'o Jurisdiction over Crimes. No Jurisdiction Where the Legal Remedy Is Adequate. Jurisdiction not Divested by Enlargement of Legal Remedy. ;,. Jurisdiction Retained to Award Complete Relief, ti. Assumption of Jurisdiction to Prevent Multiplicity of Suits. NO JURISDICTION OVER, CRIMES. 2. A court of equity has no jurisdiction to prevent the commission or interfere with the prosecution of crimes, unless the power is conferred by express statute. QUALIFIC ATION — Jurisdiction over an action for wrongful invasion of private property rights is not divested by the fact that the wrongful act is also a crime. The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of civil rights. 1 It has jurisdiction neither to prevent the commission of crimes, 2 nor with their prosecution, 3 pardon, or punishment. To to the limitation of equitable jurisdiction to protection of property rights . 310. dty will not restrain the issuance of licenses to gamblers by officers H-iation, since gambling "is a violation of the Criminal Code, which affords ample means for its suppression." Cope v. Fair Ass'n, 99 111. 489. Injur ost violation of Sunday laws refused. State v. Schweickardt, ' .. 406, 19 s. W. 47; Sparhawk v. Railway Co., 54 Pa. St. 401. Unli- 1 dramchop not abated. State v. Unrig, 14 Mo. App. 413. See, also, • Austria v. Day, 3 De Gex, F. & J. 217. It has also been held that In this country suit cannot be maintained in equity by the attorney general corporation from exercising powers in violation of its charter, but ly is at law by quo warranto. Attorney General v. Tudor Ice Co., 104 W Attorney General v. Utica Ice Co., 2 Johns. Ch. 371. .•• of the earliest reported cases on this subject is Mayor, etc., of York L742) 2 Atk. 302, where Lord Hardwicke laid down the general n that chancery has no restraining power over criminal prosecutions; Ch. 2J NO JURISDICTION OVER CRIMES. 9 assume such a jurisdiction is to invade the domain of courts of common law, or of the executive or administrative department of the government. In some of the states, however, jurisdiction has been conferred by statute on courts of equity to enforce criminal laws prohibiting the liquor traffic, by abating as nuisances, at the suit of the state or of private persons not specially damaged, the places where the liquor is sold; and it has been held that such statutes are not un- constitutional as depriving the citizen of his right to trial by jury. 4 It is also well settled that an individual menaced in his property rights by the unlawful act of another is not precluded from suing in equity merely because the unlawful act is also a crime. It is only when the injury is general and public in its effects, and no private but plaintiffs, having first brought suit in chancery to determine a right of fishery in the River Ouse, were oi'dered to discontinue, until the termination of the chancery suit, a criminal prosecution subsequently instituted by them against defendants for the same acts. In the following English cases the jurisdiction of a court of equity to restrain criminal prosecution is denied: Montague v. Dudman, 2 Ves. Sr. 396, 398; Attorney General v. Cleaver, 18 Ves. 218; Turner v. Turner, 15 Jur. 218; Saull v. Browne, 10 Ch. App. 64; Kerr v. Corporation of Preston, 6 Ch. Div. 463 (characterizing Lord Hardwicke's decision in the first case cited as doubtful). In the American courts the principle has been very generally upheld, and has been applied whether the prosecutions or arrests sought to be restrained arose under statutes of the state or under municipal ordinance. West v. Mayor, 10 Paige, 539; Davis v. So- ciety, 75 N. Y. 362; Tyler v. Hamersley, 44 Conn. 419, 422; Stuart v. Board, 83 111. 341; Devron v. First Municipality, 4 La. Ann. 11; Moses v. Mayor, 52 Ala. 198; Gault v. Wallis, 53 Ga. 675; Phillips v. Mayor, etc., 61 Ga. 386; Cohen v. Goldsboro Com'rs, 77 N. C. 2; Peirce Oil Co. v. City of Little Rock, 39 Ark. 412; Spink v. Francis. 19 Fed. 670, 20 Fed. 567; Suess v. Noble, 31 Fed. S55; In re Sawyer, 124 U. S. 210, 8 Sup. Ct. 482; Hemsley v. Myers, 45 Fed. 283; Crighton v. Dahnier, 70 Miss. 602, 13 South. 237; Chisholm v. Adams, 71 Tex. 67S, 10 S. W. 330; Poyer v. Village of Desplaines, 123 111. Ill, 13 N. E. 819 (repeated prosecutions). In two cases decided by inferior courts of the state of New York, however, criminal prosecutions were re- strained: Wood v. City of Brooklyn, 14 Barb. 425; Manhattan Iron Works Co. v. French, 12 Abb. N. C. 446. * Littleton v. Fritz, 65 Iowa, 488, 22 N. W. 641; Mugler v. Kansas, 123 U. S. 623. 672, 8 Sup. Ct. 273; Eilenbecker v. District Ct. of Plymouth Co., 134 U. S. 31, 10 Sup. Ct. 424; State v. Saunders, 66 N. H. 39, 25 Atl. 588; Carleton v. Rugg, 149 Mass. 550, 22 N. E. 55. 10 PRINCIPLES DEFINING AND LIMITING JURISDICTION. [Ch. 2 right is violated, in contradistinction to the rights of the rest of the public, that individuals are precluded from bringing suits. 5 ADEQUATE REMEDY AT LAW. 3. Equity lias no jurisdiction where there has always been a plain, adequate, and complete remedy at law. Whenever a court of law is competent to take cognizance of a right, ami has power to proceed to a judgment which affords a plain, adequate, and complete remedy, the plaintiff must proceed at law, because the defendant has a constitutional right to a trial by jury." This principle has been observed, not perhaps from the ear- liest period of the recorded history of the English chancery court, 7 but certainly ever since equity jurisprudence has been reduced to a definite system. 8 Thus, courts of equity have steadily refused to en- tertaiii jurisdiction of actions for the recovery of land, since the legal remedy by ejectment is adequate; 9 and it has been held that the fact that the accumulation of nitroglycerine within the corporate lim- a city is made a crime does not prevent a private citizen from having it enjoined, where, in case of an explosion, he would suffer an injury in person or property nol sustained by the public in general. People's Gas Co. v. Tyner, 131 End UTT. ::i X. E. 59; Greenfield Gas Co. v. People's Gas Co., 131 Ind. •".'.''.'. ::i N. E. »n. So a threatened violation of an ordinance prohibiting the :' wooden buildings within the fire limits of a city will be enjoined at suit of private persons, who would sustain irreparable injury, though the building would not be a nuisance per se. First Nat. Bank v. Sarlls, 129 Ind. 201, 28 N. E. 434. The fact that a nuisance is a crime, and punishable as • loes not deprive equity of its jurisdictiou to restrain and abate by injunc- Minke v. Bopeman, ST 111. 450; Blanc v. Murray, 36 La. Ann. 102. :■!> v. Babin, 19 How. 271, 277; Lewis v. Cocks, 23 Wall. 466, 467; . New Orleans Canal & Banking Co., 141 U. S. 656, 12 Sup. Ct. 113; Killian v. Ebbinghaus, 110 U. S. 508, 573, 4 Sup. Ct. 232; Porter v. French- ify & Mt D. Land & Water Co., 84 Me. 195, 24 Atl. 814; Watson v. 11, :;i W. Va. 406, V2 S. E. 724; McMillan v. Mason, 71 Wis. 405, 37 N. w. jr.::; Williams v. Haynes, 7S Ga. 133; Avery v. Empire Woolen Co., 82 X. V. 582. 7 I.- wis v Co< ks, 'j:: Wall. 466, 467. I Tenham v. Herbert, 2 Atk. 483. •Hipp v 9 How. 271; Lewis v. Cocks, 23 Wall. 466. Ch. 2] NOT DIVESTED BY ENLARGEMENT OF LEGAL REMEDY. 11 mere fact that damages for breach of contract cannot be ascertained with precision does not warrant a court of equity in issuing injunc- tion and decreeing specific performance. 10 But, to exclude the jurisdiction of equity, the remedy at law must be as practical, and as efficient to the ends of justice and its prompt administration, as the remedy in equity. 11 Thus, a vendee of land will be compelled in equity to pay the agreed price, though the vendor has also a remedy at law by action for breach of contract; 1S and equity will assume jurisdiction of an action involving long and 1 complicated accounts, though there is also a remedy at law. 13 An erroneous adjudication that the legal remedy is inadequate, and that the case is therefore of equitable cognizance, is not, however, necessarily void, within the meaning of the general rule that the judgment of a court not having jurisdiction of the subject-matter is an absolute nullity, and may be attacked collaterally. 14 Whenever a court has power to enter on an inquiry, its adjudication is binding on the parties, though it may be wrong. 15 JURISDICTION NOT DIVESTED BY ENLARGEMENT OF LEGAL REMEDY. 4. The jurisdiction of equity is not ousted by the en- largement of legal remedies by judicial construction; nor io Texas & P. By. Co. v. Marshall, 136 U. S. 393, 10 Sup. Ct. 846. ii Tyler v. Savage, 143 U. S. 79, 95, 12 Sup. Ct. 340; Kilbourn v. Sunderland, 130 U. S. 505, 9 Sup. Ct. 594; Hipp v. Babin, 19 How. 27S; Lewis v. Cocks, 23 Wall. 470; Board of Chosen Freeholders v. Newark City Nat. Bank, 48 N. J. Eq. 51, 21 Atl. 185; Hodges v. Rowing, 58 Conn. 12, 18 Atl. 979; Hen- derson v. Johns, 13 Colo. 2S0, 22 Pac. 461; Godfrey v. White, 60 Mich. 443, 27 N. W. 593; Warner v. McMullin, 131 Pa. St. 370, 18 Atl. 1056; Nease v. Aetna Ins. Co., 32 W. Va. 2S3, 9 S. E. 233; Darrah v. Boyce, 62 Mich. 4S0, 29 N. W. 102; Overmire v. Ha worth, 48 Minn. 372, 51 N. W. 121. 12 Hodges v. Kowing, 58 Conn. 12, 18 Atl. 979. But see Holley v. Anness (S. C.) 19 S. E. 646. is Warner v. McMullin, 131 Pa. St. 370, 18 Atl. 1056. See, as to jurisdic- tion of equity over accounts, post, 247. "Mellen v. Moline Malleable Iron Works, 131 U. S. 352, 367, 9 Sup. Ct. 781; Goodman v. Winter, 64 Ala. 410, 432. is Van Fleet, Coll. Attack, p. 82, § 61. 12 PRINCIPLES DEFINING AND LIMITING JURISDICTION. [Ch. 2 by legislative enactment, unless abrogated expressly or by fair interpretation. Equity has constantly reacted on the common law, and the rigor of many of its ancient rales lias been relaxed. Thus, equity origi- nally assumed jurisdiction of actions on lost bonds or other instru- ments, because courts of law refused to assist plaintiff who could qoI make profert of the instrument Afterwards the courts of law changed the rule, and permitted a man to declare on a lost bond. Lord Thurlow held that the equity jurisdiction over this class of ac- i ions was qoI thereby divested; 18 and Lord Eldon, 17 some years later, said: 'This court will not suffer itself to be ousted of any part of its original jurisdiction because a court of law happens to fall in love with the same or a similar jurisdiction." Bo it has been generally held that the statutory creation of a rem- edy at law in cases theretofore exclusively cognizable in equity does doI destroy or abridge the equity jurisdiction, unless it is either expressly or by fair interpretation so provided. Thus, the ancient jurisdiction of equity over suits to charge the separate property of a married woman with her debts has been held not to be divested by a statute giving creditors the right to sue at lav; 18 and a Bpecial statutory proceeding enabling a court to vacate its own judgments rendered at a previous term, for fraud practiced by the successful party, has been held not to exclude or limit the right of a party, by original action in equity, to impeach the judgment "i- enjoin its collection. 19 i« Atkinson v. Leonard, 3 Brown. Ch. 218, 224. See, to the same effect, Toul- min v. Price, 5 Ves. 235, 23S; Bromley v. Holland, 7 Ves. 3; East India Co. v. Boddam, 9 Ves. 4G4, 466; Reeves v. Morgan, 48 N. J. Eq. 429, 21 Atl. " Byre v. Everett, 2 Rnss. 381, 3S2. Equity jurisdiction not ousted in case of tn^t. though common-law courts now afford remedy by equitable action of psit Varet v. New York Ins. Co., 7 Paige, 560, 24 Wend. 505. Cases of fraud, mistake, or accident, see People v. Houghtaling, 7 Cal. 34S, 351; Boyce's v. Grundy, 3 Pet. 210, 215. Suits by sureties, Sailly v. Elmore, 2 Paige, Schroeder v. Loeber, 75 Md. 195, 23 Atl. 579, 24 Atl. 226; Mayne v. Griswolu, :; Sandf. 463; White v. Meday, 2 Edw. Ch. 486. "Thrasher v. Doig, 18 Fla. S09; Rooney v. Michael, 84 Ala. 585, 4 South. 421; Phippa v. Kelly, 12 Or. 213, 6 Pac. 707. rt v - Phillips, l] l »hio st. 514. See, also, Case v. Fishback, 10 B. Mon. Ch. 2] RETENTION OF JURISDICTION TO AWARD COMPLETE RELIEF. 13 While the foregoing is an accurate statement of the judical theory, nevertheless it must be admitted that the practical result of the enlargement of the common-law remedies has been to reduce some of the ancient heads of equity jurisdiction to a state of "in- nocuous desuetude." Thus, discovery in aid of legal proceedings is no longer necessary, since parties have been rendered competent witnesses by statute; equitable actions to charge the separate prop- erty of a married woman are practically obsolete in states whose statutes place her on the footing of a feme sole so far as property rights are concerned; and an assignee of a legal chose in action, who may now sue at law in the name of his assignor in those states wherein he is not required to sue in his own name, would have no standing in equity, though anciently the court of chancery was the only tribunal which would protect his rights. 20 RETENTION OF JURISDICTION TO AWARD COMPLETE RELIEF. 5. Equity jurisdiction, having rightfully attached to a controversy, will be made effectual for the purpose of com- plete relief, though it may involve the adjudication of purely legal questions. "Where this court can determine the matter, it shall not be a handmaid to other courts, nor beget a suit to be ended elsewhere," is the graphic manner in which this principle was first expressed by Lord Nottingham. 21 It rests on the principle that equity prevents multiplicity of suits. 22 40, 41; King v. Payn, 18 Ark. 583, 587, 588; Payne v. Bullard, 23 Miss. 8S, 90; Lane v. Marshall, 1 Heisk. (Tenn.) 30, 34. Jurisdiction as to discovery not affected by statute authorizing examination of parties as witnesses in courts of law. Cannon v. McNab, 48 Ala. 99; Shackelford v. Bankhead, 72 Ala. 476; Handley v. Heflin, 84 Ala. 600, 4 South. 725. See, as to discovery, post, 318. 20 l Pom. Eq. Jur. § 281. 21 Parker v. Dee, 2 Ch. Cas. 200. For recent decisions announcing this prin- ciple, see Valentine v. Riebardt, 126 N. Y. 272, 27 N. E. 255; Lynch v. Met- ropolitan El. R. Co., 129 N. Y. 274, 29 N. E. 315; Van Rensselaer v. Van Rens- selaer, 113 N. Y. 213, 21 N. E. 75. 22 Jesus College v. Bloom, 3 Atk. 262, 263; Turner v. Pierce, 34 Wis. 658; Eastman v. Savings Bank, 58 N. H. 421; McGean v. Railroad Co., 133 N. Y. 16, 30 N. E. 647. 11 PRINCIPLES DEFINING AND LIMITING JURISDICTION. [Ch. 2 To authorize the application of this principle, the party invoking it must prove facts bringing the case within the general jurisdic- tion of equity, or he must at least show that he brought the suit in faith, supposing and having reasons to suppose himself en- title. 1 to equitable relief." The court may then grant him both equi- table and legal relief.-' or it may grant him legal relief alone, if equitable relief is impracticable. 25 Thus, on a bill for discovery in a matter involving purely legal questions, equity will retain jurisdiction for all purposes, provided plaintiff has no other means of proving his case; 28 where plaintiff makes out a case entitling him to an injunction against a nuisance, a court of equity will, as an incident to such relief, consider and set- tle the question of damages; 27 after reforming a contract, equity will award damages for its breach; 28 and relief by award of compensation has been decreed where specific performance of a con- tract has become impracticable. 29 The constitutional right to trial by jury is not infringed, in such cases, by award of legal relief. 30 Milkman v. Ordway, 106 Mass. 232; Case v. Minot, 158 Mass. 577, 33 N. r:. Tin.. rmley v. Clark. 134 U. S. 338, 349, 10 Sup. Ct. 554; Harding v. Fuller, l 11 111. 308, 30 N. E. 1053; Virginia & A. M. & M. Co. v. Hale, 93 Ala. 542, 256; Turner v. Pierce, 34 Wis. 658. >aton v. Gibson, 29 S. C. 514, 7 S. E. 833; Case v. Minot, 158 Mass. 577, 33 N. i:. 700; Holland v. Anderson, 38 Mo. 55; Combs v. Scott, 76 Wis. 662, 45 X. W. 532. w Virginia & A. M. & M. Co. v. Hale, 93 Ala. 542. 9 South. 256; Lyons v. Miller, f. Grat 427. 438; Russell v. Clark, 7 Crancb, 69. •i Fleiscbner v. Citizens' Real-Estate & Imp. Co. (Or.) 35 Pac. 174; Brick- ner Woolen Mills Co. v. Henry, 73 Wis. 229, 40 N. W. 809; Bassett v. Manu- facturing Co., 43 X. II. 249; Whipple v. Fair Haven, 63 Vt. 221, 21 Atl. 533; v. Minot. 158 Mass. .",77, 33 X. E. 700. Hall (Miss.) 13 South. 39; Phoenix Ins. Co. v. Rylana, ot> Aid. i::7. 1<; Atl. 109. man v. Ordway, 106 Mass. 232; Combs v. Scott, 76 Wis. 662, 45 N. W. 532; Woodcock v. Bennett, 1 Cow. 711; Rankin v. Maxwell, 2 A. K. Marsh. Further illustrations: Action to rescind deed for breach of condition ied to award damages. Pinkum v. City of Eau Claire, 81 Wis. 301, 51 & V. !:.\. Co. v. McKenzie, S5 Ala. 549, 5 South. 322; Harding II 111. 308, 30 X. E. 1U5LJ; Cogswell v. Railroad Co., 105 N. Y. 319" 1 1 X. E. 518. Ch. 2] PREVENTION OF MULTIPLICITY OF SUITS. 15 Where, however, plaintiff makes out no case entitling him to equitable relief, and the facts show that he had no reason to sup- pose himself entitled to such relief when the action was brought, equity will not retain the cause to award him legal relief, but will leave him to pursue his remedy in a court of law. 31 Thus, in an ac- tion to foreclose a mortgage, where plaintiff fails to establish the mortgage, a money judgment for the amount of the debt cannot be rendered; 32 nor will damages be awarded in an action for specific performance, where plaintiff knew that he was not entitled to equitable relief when the action was brought. 38 PREVENTION OF MULTIPLICITY OP SUITS. 6. Equity will assume jurisdiction to prevent multiplic- ity of suits: (a) Where numerous persons have a community of in- terest or a common right or title in the subject- matter of controversy, as against a common ad- versary, — or where each has an equitable cause of action or an equitable defense against such adversary, involving the same questions of law and fact. N. W. 550; Martin v. Martin, 44 Kan. 295, 24 Pac. 418. In proceedings to establish title under burnt records act of Illinois, equity will determine all issues, legal as well as equitable. Gormley v. Clark, 134 U. S. 338, 349, 10 Sup. Ct. 554; Harding v. Fuller, 141 111. 308. 30 N. E. 1053. Action to con- strue will, or to enjoin executor or administrator, will be retained for complete settlement of estate. Withers v. Sims, 80 Va. 651; Youmans v. Youmans, 26 N. J. Eq. 149, 154; Cowles v. Pollard, 51 Ala. 445. Contra, Gilliam v. Chan- cellor, 43 Miss. 437, 448. See, also, Leighton v. Young, 10 U. S. App. 301, 3 C. C. A. 176, and 52 Fed. 439; McGean v. Railway Co., 133 N. Y. 16, 30 N. E. 647; Haynes v. Whitsett, 18 Or. 454, 22 Pac. 1072; Penn v. Ingles, S2 Va. 69; Barnes v. Dow, 59 Vt. 530, 10 Atl. 258; Currie v. Clark, 101 N. C. 329, 7 S. E. 805; Griffin v. Fries, 23 Fla. 173, 2 South. 206; Crump v. Ingersoll, 47 Minn. 179, 182, 49 N. W. 739. si Dodd v. Home Ins. Co., 22 Or. 3, 28 Paa 881, 884, and 29 Pac. 3; W. J. Johnston Co. v. Hunt, 21 N. Y. Supp. 314, 66 Hun, 504. 32 Dudley v. Congregation of St. Francis, 138 N. Y. 451, 458, 34 N. E. 2S1. 33 Morgan v. Bell, 3 Wash. 554, 28 Pac. 925; Saur v. Ferris, 145 111. 115, 34 N. E. 52; McQueen v. Chouteau, 20 Mo. 222. See, also, post, 286. 1(J PRINCIPLES DEFINING AND LIMITING JURISDICTION. [Ch. 2 (b) Where reiterated litigation at law between the same individuals concerning the same subject- matter is threatened, or has actually taken place, without conclusively adjudicating their rights. This principle -rows out of the preceding one concerning equity Jurisdiction where there is no plain, adequate, and complete remedy at law. ' To warrant a court of equity in assuming jurisdiction to prevenl multiplicity of suits, it must, however, appear that the party has some defense to the numerous suits instituted or threat- ! against him. 35 L Turning uow to the first class of cases mentioned in the black- text, the equity jurisdiction has been long established when- ever numerous persons have a community of interest or a common right or title in the subject-matter of controversy; it matters not whither the right be asserted by one against many, or by many against one. This form of action is technically called a "bill of "; and the illustrations usually given are disputes as to rights of common by a numerous body of tenants on one side and their land- li.nl on the other, 38 and between a corporation claiming an exclusive right of fishery in a river and numerous riparian owners setting up adverse rights. 37 In these cases the numerous persons have at least a community of interest in the subject-matter of the suit, — the right of common in the one case, and the right of fishery in the other. Modern cases, however, have extended the equitable jurisdiction; ami it has been stated that equity will assume jurisdiction whenever tin- rights of the numerous persons depend for solution on the same questions of law and fact, though purely legal rights are involved p. 10. its v. Pensacola & A. R. Co., 29 Fla. 617, 11 South. 226. . v. Tenants of Bromsgrove (1681) 1 Vera. 22; Powell v. Earl of I'.Avis (1826) 1 lounge & J. 158; Warrick v. Queen's College (1871) 6 Ch. App. 716. (Mini- illustrations: Numerous persons having easement of pas- Mi alley may unite in a bill to enjoin its obstruction. Cadigan v. Brown, 120 Mass. 193. Right of numerous mill owner to draw water from a common reservoir determined in one proceeding. Adams y. Manning, 48 Conn. 477. Mayor of York v. Pilkington UTo7) 1 Atk. 282. Ch. 2] PREVENTION OF MULTIPLICITY OF SUITS. 17 and purely legal relief can be conferred. 38 It is believed, however, that this statement of the rule is too broad; and that, when no com- munity of interest in the subject-matter of the suit subsists between the numerous persons, there must exist some recognized ground for equitable interference aside from mere multiplicity of suits. The precise question arose in a recent Mississippi case. 39 Numerous persons sued a railroad company at law for the destruction of their property by fire alleged to have been caused by defendant's negli- gence. The company then filed its bill in equity to enjoin the prose- cution of the actions at law, and to compel a determination of the entire matter in a single suit in equity, on the ground that the same questions of law and fact were involved in each case. The court, after an exhaustive review of all the authorities, denied the equity jurisdiction in such cases, saying: "There must be some recognized ground of equitable interference or some community of interest in the subject-matter of controversy, or a common right or title involved, to warrant the joinder of all in one suit; or there must be some com- mon purpose in pursuit of a common adversary, where each may re- sort to equity, in order to be joined in one suit; and it is not enough that there is a community of interest merely in the questions of law or fact involved." 40 ss l Pom. Eq. Jur. §§ 250, 269; Phelps, Eq. § 230; Preteca v. Maxwell Land Grant Co., 4 U. S. App. 326, 1 C. C. A. 607, and 50 Fed. 674; Osborne v. Wis- consin Cent. R. Co., 43 Fed. 826. 39 Tribette v. Illinois Cent. R. Co. (1892) 70 Miss. 182, 12 South. 32. 40 This is believed to be the true rule. The right to have such a case tried and the damages assessed by a jury cannot be taken away merely because litigation by numerous other persons involving the same questions of law and fact is threatened. The following cases support the above view: Lehigh Val. K. Co. v. McFarlan, 31 N. J. Eq. 730; National Park Bank of New York v. Goddard, 131 N. Y. 494, 30 N. E. 506; Hanstein v. Johnson, 112 N. C. 253, 17 S. E. 155; Northern Pac. R. Co. v. Amacker, 46 Fed. 233. Equity will not entertain jurisdiction of a suit to cancel municipal bonds in the hands of numerous persons where the municipality has a complete defense in an action at law should suit be brought thereon. Farmington Village Corp. v. Sandy River Nat. Bank, 85 Me. 47, 26 Atl. 965. For actions where each one of the numerous persons might have maintained a separate suit in equity, see Ballou v. Hopkinton, 4 Gray, 324; New York & N. H. R. Co. v. Schuyler, 17 N. Y. 592; Sheffield Waterworks v. Yeomans, 2 Ch. App. 8; Foxwell v. Webster, eq.jur. — 2 PRIM HI.KS DEFINING AND LIMITING JURISDICTION. [Ch. 2 The jurisdiction to prevent reiterated litigation between the same individuals concerning the same subject-matter originated from the inconclusive nature of the judgment in ejectment; and whenever plaintiff had satisfactorily established his title at law, but yet was threatened with further litigation from new attempts to controvert iiiy would grant a perpetual injunction to quiet plaintiff's pos- :i and to suppress future litigation. 41 Though equitable inter- ference La no longer necessary to prevent reiterated litigation in eject- in. •ni. Bince the enactment of statutes rendering the judgment there- in final ami conclusive as to title, the principle still survives; and it is «'ii this ground that equity now assumes jurisdiction to restrain repeated trespasses by one person on the land of another, 42 and to abate a continuing nuisance. 43 If, however, the title to the land is disputed, equity will not interfere until it has been satisfactorily established at law. 44 Applying this principle, it has also been held that, where numerous suits involving the same subject-matter be- i ween the same parties are pending in a court of law which has no power i" consolidate them, equity will stay the prosecution of all but one until that can be finally heard and determined. 45 - 1 1 v \ s. 250; Lockwood Co. v. Lawrence, 77 Me. 297; Louisville, N. A ;:y. Co. v. Ohio Yal. Improvement & Contract Co., 57 Fed. 42. <' Bar! of Bath v. Sherwin, 4 Brown, Pari. Cas. 373; Eldridge v. Hill, 2 • !h. 281; Marsh v. Reed, 10 Ohio, 347. <- tlnssleman v. Marquis, 1 Bush. 465; Lembeck v. Nye, 47 Ohio St. 336, 24 Warren Mills v. New Orleans Seed Co., 65 Miss. 391, 4 South. lock v. Xoonan, 108 N. Y. 179, 15 N. E. 67; Ladd v. Osborne, 79 II N. \Y. 235. < Kavanagh v. Railroad Co., 7S Ga. 271, 273, 2 S. E. 636; Sheldon v. Rock- w.-ll, a Wis. 166, 17'J; Eastman v. Amoskeag Manuf'g Co., 47 N. H. 71. rney v. Hadley, 32 Fla. 344, 14 South. 4; Eldridge v. Hill, 2 Johns. Ch. Lord Tenham v. Herbert, 2 Atk. 483. «' Third Ave. R. Co. v. Mayor, etc., 54 N. Y. 159. Ch. 3] DEFINITION AND CLASSIFICATION OF MAXIMS. 19 CHAPTER III. THE MAXIMS OF EQUITY. 7. Definition and Classification of Maxims. 8. Enabling Maxims— No Right without a Remedy. 9. Equity Regards Substance Rather than Form. 10. Equity Looks on That as Done which Ought to be Done* 11. Equity Imputes an Intention to Fulfill an Obligation. 12. Equity Acts in Personam, and not in Rem. t 13. Equity Acts Specifically, and not by Way of Compensation. 14. Equality is Equity. 15. Restrictive Maxims— Equity Follows the Law. 16. Where Equities are Equal, the Law will Prevail. 17. Where There are Equal Equities, the First in Order of Time shall Prevail. 18. He Who Seeks Equity must do Equity. 19. He Who Comes into Equity must Come with Clean Hands. 20. Equity Aids the Vigilant, not Those Who Slumber on Their Rights. DEFINITION AND CLASSIFICATION OF MAXIMS. 7. The maxims of equity are pithy statements of its acknowledged and fundamental principles, and are the germs from which the system of equity jurisprudence has been largely developed. 1 They may be classified 2 as: (a) Enabling. (b) Restrictive. The enabling maxims impel the court to action, while the restrictive operate to keep it passive. The enabling maxims are: (a) Equity will not suffer a right to be without a remedy. (b) Equity regards substance rather than form. i See 1 Pom. Eq. Jur. § 360. 2 This classification was first suggested in Haynes' Outlines of Equity (page 19), and was perfected by Judge Phelps (Juridical Equity Abridged, page 2G9), whose arrangement of the maxims I have followed. 20 THE MAXIMS OF EQUITY. [Ch. 3 c) Equity looks on that as done which ought to be done. (d) Equity imputes an intention to fulfill an obligation. (e) Equity acts in personam, and not in rem. Equity acts specifically, and not by way of com- pensation. g ) Equality is equity. The restrictive maxims are: b Equity follows the law. (i) Where the equities are equal, the law must pre- vail. (j) Where there are equal equities, the first in order of time shall prevail. (k) He who seeks equity must do equity. (1) He who comes into equity must come with clean hands. (m) Equity aids the vigilant, not those who slumber on their rights. The studenl should bear in mind that, like proverbs, the practical \ nli t these maxims lies in the skill and judgment with, which they are applied to the facts of each particular case; that they do nut express in each and every case an exhaustive statement of some independent truth, but that they are interdependent; and that, con- sequently, some one of the restrictive maxims may induce the court ithhold the relief which one or more of the enabling maxims impel it to grant ENABLING MAXIMS. 8. Equity will not suffer a right to be without a remedy. LIMITATIONS— (a) The right asserted must not be a mere moral right, and it must not contra- vene express statutes, or the declared public policy of the state, (b) Equity cannot create a new remedy for the enforcement of a purely legal right merely because the remedy provided by law proves inadequate in a particular instance. Ch. 3] ENABLING MAXIMS. 21 This maxim lies at the foundation of equity jurisprudence, which aims to supplement the defects of the common law; but, since the crystallization of equity into a body of definite rules and principles, its jurisdiction depends, not so much on the nonexistence of a rem- edy at law, as on the question whether its established principles will warrant the granting of the relief sought. Applications of this maxim in modern times are, however, not wanting. "Take such things as these: The separate use of a married woman, the re- straint on alienation, the modern rule against perpetuities, and the rules of equitable waste. We can name the chancellors who first invented them, and state the date when they were first intro- duced into equity jurisprudence." 3 The doctrines that the unpaid capital stock of a corporation is a trust fund for the benefit of cred- itors, and the invention of receivers' certificates as security for money loaned to carry- on the business during the receivership, which are entitled to a preference over all prior liens on the prop- erty, have been cited as other modern instances of the application of this maxim. 4 And it may be stated generally that whenever a statute or a constitution creates a new right, — especially if it be equitable in its nature, — and provides no method for its enforce- ment, equity will afford relief. 5 Thus, equity will enforce a statu- tory lien where the statute itself provides no method of enforce- ment; 6 and a provision of the interstate commerce act prohibiting discrimination against connecting carriers was enforced by man- datory injunction against the employe's of a discriminating road, 3 Jessel, M. R., in Knatchbull v. Hallett, 13 Cb. Div. 696, 710. * Phelps, Eq. § 193. 5 One exception to this principle is in cases of contested election, based on the theory that these are political matters, with which courts have no power to deal. See Parmeter v. Bourne (Wash.) 35 Pac. 586; Dickey v. Reed, 78 111. 262; State v. Police Jury, 41 La. Ann. 850, 6 South. 777; Skrine v. Jackson, 73 Ga. 377; Sanders v. Metcalf, 1 Tenn. Ch. 419; McWhirter v. Brainard, 5 Or. 426. However, the jurisdiction of equity has been upheld in the following contested county-seat elections: Boren v. Smith, 47 I1L 482; Down v. Board (Idaho) 26 Pac. 167; Sweatt v. Faville, 23 Iowa, 321. If the jurisdiction of equity is limited to the protection of property rights, these cases are clearly erroneous. See post, 310. s Gilchrist v. Helena, H. S. & S. R. Co., 58 Fed. 708; Lockett v. Robinson (Fla.) 12 South. 649. THE MAXIMS OF EQUITY. [Ch. 3 who had declared a boycott against the connecting carrier, and who had refused to handle its freight.' In this last case it was said: ■It is said the orders issued in this case are without precedent. Every just order or rale known to equity courts was born of some emer- gency, to meel some now condition, and was therefore in its time without a precedent If based on sound principles, and beneficent results follow their onforcement, affording necessary relief to one party, without imposing illegal burdens on the others, new remedies and unprecedented orders arc not unwelcome aids to the chancellor i.) meel the constantly varying demands for equitable relief." /. ' 'tat '.'<•"••. \\'o have already seen that abstract moral rights are enforced nei- ther at l.i w nor in equity, 8 and it is obvious that no court will en- force any right opposed to express statute or declared public policy. 9 In this respect equity follows the law. Thus, where a contract is \"i<] at law for want of power to make it, a court of equity has no jurisdiction to enforce it, or, in the absence of fraud, accident, or mistake, to so modify it as to make it legal, and then enforce it. 10 Tin- second limitation likewise results from the operation of the restrictive maxim that equity follows the law. Thus, equity will not levy a tax, or subject the taxable property within the corporate limits of a city to the payment of a judgment against it, merely because the legal remedy by mandamus has proved inefficient tli rough various devices of the city authorities. 11 "The total failure ^ Toledo, A., A. & N. M. R. Co. v. Pennsylvania Co., 54 Fed. 746; South- • in California R. Co. v. Rutherford, 02 Fed. 79G. It should be noted, however, that the Interstate commerce act expressly authorizes the federal courts to pre- ::<1 restrain its violation. U. S. v. Elliot, 62 Fed. 801. The mere fact that is novel, and is not brought plainly within the limits of some adjudged nut defeat the jurisdiction of equity. Piper v. Hoard, 107 N. Y. 73, 13 N. E. 626. See, also, Joy v. St. Louis, 138 U. S. 1, 50, 11 Sup. Ct. 243; D \. Royal Arcanum, 46 N. J. Eq. 102, 18 Atl. 675; Wickersham v. Crit- tenden, 03 Cal. ;;i2, lis Pac. 788. 8 Ante, p. 1. man v. Low, 2 Edw. Ch. (N. Y.) 324. »o Hedges v. Dixon Co., 150 U. S. 1S2, 14 Sup. Ct. 71. Where bonds issued by a county In aid of a railroad exceed the limit authorized by law, equity will imt cancel the excess, and enforce payment of the residue. n Reea v. City of Watertown, 19 Wall. 100; Heine v. Levee Commissioners, Ch. 3] ENABLING MAXIMS. 23 of ordinary remedies does not confer on the court of chancery an unlimited power to give relief. Such relief as is consistent with the general law of the land, and authorized by the principles and prac- tice of the courts of equity, will, under such circumstances, be administered. But the hardship of the case, and the failure of the mode of procedure established by law, is not sufficient to justify a court of equity to depart from all precedent, and assume unregulated power of administering abstract justice at the expense of well-set- tled principle." ia 9. Equity regards substance rather than form. This maxim operates without any limitations. Equity will in no case permit the veil of form to hide the true effect or intent of the transaction. 13 The only difficulty is in determining what is matter of substance and what of form. 14 This maxim was long ago applied to relieve against penalties and forfeitures. The usual security in olden times for money borrowed seems to have been a bond for an amount considerably larger than the sum borrowed, and conditioned to be void if such sum, with interest, was paid on a specified day. The courts of common law said a bargain is a bargain, and, if the debtor made default, the bond became absolute and indefeasible, and the creditor was entitled to recover its full amount. Equity, however, looking at the substance of the transac- tion, said that the bond was intended merely as security for the money borrowed; and if the debtor, after the day named, offered 19 Wall. 658; Finnegan v. City of Fernandina, 15 Fla. 379; Thompson v. Allen Co., 115 U. S. 550, 6 Sup. Ct 140. 12 Mr. Justice Miller in Heine v. Levee Commissioners, 19 Wall. 655. In accordance with this principle, it has also been held that the nonexistence of any method at common law for subjecting a debtor's choses in action to the payment of a judgment does not authorize a resort to equity, in the absence of fraud, trust, or other ground for equitable relief, or of a statute conferring jurisdiction. Donovan v. Finn, Hopk. Ch. (N. Y.) 59, 74, followed in Greene v. Keene, 14 R. I. 388, 395, where authorities are collected. Contra, Hadden v. Spader, 20 Johns. 554, 562. is Snell, Eq. p. 43. " Stockton v. Central R. Co., 50 N. J. Eq. 52, 76, 24 Atl. 964. 24 TIIK MAXIMS OF EQUITY. [Ch. 3 to repay it, with in (crest and expenses, equity would restrain the creditor from suing at law for the amount of the bond, on the ground that such a coin-so was unconscientious and oppressive. This doctrine was gradually extended to contracts other than for the repayment of money; and the general rule now is that, when- .! penalty or forfeiture is inserted to secure the performance of Bome an or the enjoyment of some right, the latter will be re- garded as the real and principal intent of the instrument, and the penalty or forfeiture as merely an accessory, and the debtor will be relieved therefrom on compensating the creditor for the damages he has actually sustained. 15 This maxim is also at the foundation of the law of mortgages. at this day, a mortgage is in form a conveyance conditioned to be void on tin- repayment, by the mortgagor, on a specified day, of tin- sum borrowed, with interest. The coinmon-law courts, look- in- merely at the form of the instrument, held the mortgagee's es- indefeasible, unless the money was paid on the very day stipu- Equity, however, looking at the substance, regarded the transaction merely as a pledge to secure the money borrowed, and permitted the mortgagor to redeem after the time fixed, on payment of principal and interest then due. 10 Carrying this principle still further, it is held that an absolute deed, taken as security for a debt, is in equity a mortgage. 17 "If a transaction resolve itself into irity, whatever may be its form, and whatever name the par- ti- -s may choose to give it, it is in equity a mortgage." 18 Tin- maxim has also been held to be specially applicable in cases of suretyship, with respect to which, whatever may be the form of tip- instrument, or the obligation of the parties on its face, a court r ni. Eq, Jur. § 381; 2 Story, Eq. Jur. § 1314; Peachy v. Duke of Som- I Strange, 447, 2 White & T. Lead. Cas. Eq. 10S2; Sloman v. Walter, 1 Brown, Ch. 41S, 2 White & T. Lead. Cas. Eq. 1094; Hagar v. Buck, 44 Vt. See post, 107, for a further discussion of the equitable doctrine concern- naltios and forfeitures. '« 1 Spence, Eq. Jur. G01; Langford v. Barnard, Toth. 134 (decided 37 Eliz.): Emanuel « Jollege v. Evans, 1 Ch. R. 18. See post, 212, for a further statement <>f tli.' equitable principles relating to mortgages. Millikcn, 71 Me. 5(37; Morris v. Nixon, 1 How. 118; Russell thard, 12 Bow. 139; Ex parte Udell, 10 Ch. Div. 76. » Flagg v. Maun, 2 Sumn. 533, Fed. Cas. No. 4.S47. Ch. 3] ENABLING MAXIMS. 25 of equity always inquires into the real nature and objects of the transaction, and affords relief accordingly. 19 But the maxim does not apply alone to carry out the true intent of the parties to a contract. It also applies to frustrate that intent whenever it contravenes the laws of the state, and the parties have adopted some specious form to disguise it. In such cases, equity will strip off the disguises, and, if necessary to the ends of justice, cancel the contract. 20 The foregoing illustrations do not, by any means, exhaust the ap- plications of this maxim; nor can it be said at the present day to be confined exclusively to courts of equity. Notable instances of a disregard of form by courts of law, or at least in legal actions, will be found in a number of recent quo warranto proceedings against corporations for attempted evasion of anti-trust laws. 21 10. Equity looks on that as done which ought to be done. LIMITATION — The maxim does not apply as against the intervening rights of third persons, nor in favor of one who has no right to have a thing regarded as done. This principle is an expansion of the preceding one. Looking at the substance of things, equity will place one having an equitable right to demand the performance of any act on the part of another in the same situation, and clothe him with the same interests in is Dodd v. Wilson, 4 Del. Oh. 114, 409. 20 Stockton v. Central R. Co., 50 N. J. Eq. 52, 24 Atl. 964. A statute of New Jersey prohibited the leasing of the property of a domestic railroad to a foreign corporation. A lease was executed to a financially irresponsible domestic company, and the lease was guarantied by a wealthy foreign com- pany. The court, disregarding the mere form, held the transaction to be a lease to the foreign company, and the guaranty to be a mere device to evade the statute. See, also, Pennsylvania R. Co. v. Com. (Pa. Sup.) 7 Atl. 368, where another device to evade a statute prohibiting the lease of competing railroads was disregarded. 2i People v. Chicago Gas Trust Co., 130 111. 268, 22 N. E. 798; People v. North River Sugar-Refining Co., 121 N. Y. 582, 24 N. E. 834; State v. Standard Oil Co., 49 Ohio St 137, 30 N. E. 279. mi: MAXIMS OF EQUITY. [Ch. 3 the Bnbject-matter, as if the net had been performed at the proper time." A right to demand the performance must exist; for equity s done only what "ought" to have been done, not what •■illicit" have been done. 23 The doctrine of equitable conversion has its origin in this maxim. Whenerer, by deed or will, money is directed to be converted into land, or land into money, a court of equity, acting on this principle, will consider the conversion to have taken place at the time the deed or will takes effect, — i. e. the delivery of the deed, or the death of testator; and the personalty is transmissible or descendible as real estate, and the realty as personal property. 24 also, acting <>n this maxim, it is the settled doctrine in equity that the vendee in an executory contract for the sale of land is the eqnitable owner of the land, while the vendor has merely a lien for the purchase money; and, being thus in equity the owner, the vendee must bear any loss which may happen, and is entitled to any benefit which may accrue, to the estate in the interim between the agreement and the conveyance. 25 On this principle, also, "an agreement in writing to give a mortgage, or a mortgage defectively executed, or an imperfect attempt to create a mortgage, or to appro- priate specific property to the discharge of a particular debt, will create a mortgage in equity, or a specific lien on the property hi- ded to be mortgaged." 28 Like the preceding maxim, the one now under consideration also =2 Bee Pom. Eq. Jur. § 365; Adams, Eq. p. 135. »B Wheate, 1 W. Bl. 123, 129. -* Fletcher v. Ashburner, 1 Brown, Ch. 497, 1 White & T. Lead. Cas. Eq. 826; Craig v. Leslie, 3 Wheat 563, 567; Dunscomb v. Dunscomb, 1 Johns. Ch. 508; Teter v. Beverly, 10 Pet. 532; Tazewell v. Smith's Adm'r, 1 Rand. iVa.i 313, 320. See post, 67, for further discussion of conversion. » Payne v. Meller, 6 Ves. 349; Elevell v. Hussey, 2 Ball & B. 287; Lewis v. Smith. 9 N. Y. 502, 510; Brewer v. Herbert, 30 Md. 301; Haughwout v. Murphy. 22 N. J. Eq. 531. is Curroy, C. J., in Daggett v. Rankin, 31 Cal. 321, 326. Where a mort- • ovenants to insure the premises for the benefit of the mortgagee, and Igor or some other person procures insurance payable to the mort- without the mortgagee's knowledge, and with no intent to perform the luity, looking on that as done which ought to have been, will .ace as effected under the agreement, aud will give the mort- Ch. 3] ENABLING MAXIMS. 27 applies to cases of fraud. Not only does equity look on things agreed or directed to be done as done, but also, if acts have, by fraud of the parties, been prevented from being done, it will inter- fere and treat the case exactly as if the acts had been done. 27 "The principle is that a person is not allowed to derive any advantage from his own wrongdoing, and that, in order to prevent this, a court of equity will treat him as having done that which ought to have been done." 28 Limitations. Equity will not consider that as done which ought to have been done if to do so would injuriously affect third persons who have contracted with reference to what actually has been done. 29 Thus, equity will not consider a transaction as a pledge when there is no delivery of the thing pledged, though the parties intended the transaction as such, if credit has been given to the pledgor by third persons, which might not have been given if he had not remained in possession of the thing pledged. 30 Nor does the maxim apply in favor of strangers and volunteers, but only in favor of the parties to the transaction, and their privies. 31 11. Equity imputes an intention to fulfill an obligation. Where a man is bound to do an act, and he does one which is capable of being considered as done in fulfillment of his obligation, it will be presumed that he acted rightfully in the performance of his duty, and not in violation thereof. 32 Thus, where a man, on gagee his equitable lien accordingly. Ames v. Richardson, 29 Minn. 330, 13 N. W. 137; Thomas v. Vonkpff, G Gill & J. 372; Wheeler v. Insurance Co., 101 U. S. 439; Cromwell v. Brooklyn Fire Ins. Co., 44 N. Y. 42. 27 Story, Eq. Jur. § 1S7; Moore v. Crawford, 130 U. S. 122, 128, 9 Sup Ct. 447. 28 London, C. & D. R. Co. v. Southeastern R. Co. (1892) 1 Ch. 143. 29 Vose v. Cowdrey, 49 N. Y. 336; Clabaugh v. Byerly, 7 Gill, 354. so Casey v. Cavaroc, 96 U. S. 467. 3i Snell, Eq. p. 10; Jefferys v. Jefferys, Craig & P. 138; Chetwynd v. Mor- gan, 31 Ch. Div. 596; Redfield v. Parks, 132 U. S. 239, 247, 248, 10 Sup. Ct. 83. It has also been held that this maxim does not apply to errors or omis- sions in the record of judicial proceedings. King v. French, 2 Sawy. 441, Fed. Cas. No. 7,793. 32 2 Spence, Eq. *204; Snell, Eq. p. 45; 1 Pom. Eq. Jur. § 420. THE MAXIMS OF EQUITY. [Ch. 3 his marriage, covenants to settle a specified quantity of land on his wife as jointure, and then on his first and other sons, and, after marriage, acquires property of the specified kind, without settling ime, equity will regard it as acquired with a view to fulfill the obligation, and the first son cannot claim the land as heir, and insisl on the investment of personalty in other lands in fulfillment of the covenant 88 So, also, where a trustee empowered to invest trust funds takes the title acquired therewith in his own name, equity will presume that he acted in the performance of his duty, and that the property belongs to the beneficiaries of the trust 34 In a rather recent leading case in England, the principle was carried si ill a step further. It was held that where one holding money in a fiduciary capacity mingles it with his own, and draws mit of the mixed fund, equity will presume that he is rightfully drawing out his own money, rather than that he is violating his trust by drawing out the trust funds; and it was accordingly held, i ontrary to the general rule applying the first drawings to the first deposits, that the unexpended balance was subject to a charge for the entire amount of the trust funds. 35 These illustrations show that the maxim now under considera- tion is closely analogous to the preceding one, — equity regards that as done which ought to be done. 12. Equity acts in personam, and not in rem. QUALIFICATION— By statute, in most of the states, a decree of a court of equity operates, -when necessary, as a transfer of title to real es- tate; and, -whenever such decree merely directs the payment of money, it is enforceable by ex- ecution against the property of the unsuccessful party. »» Wllcocks v. Wilcocks, 2 Vera. 558, 2 White & T. Lead.Cas. Eq. *415; Lech- mere v. Lechmere, Cas. L Talb. SO. 3*2 Spence, Eq. *20-4; 1 Pom. Eq. Jur. § 422; Johnson v. Dougherty, 18 N. J. Eq. 40ft. . "In re Halletfs Estate, 13 Ch. Div. GOG, 727, 745. Followed in Central Nat Bank of Baltimore v. Connecticut Mut. Life Ins. Co., 104 U. S. 54; Englar v. « >ffutt, TO Md. 78, 8G, 1G Atl. 4f land; 65 and to cases of marshaling 56 and distribution of equitable assets. 57 And assets will be treated as equitable assets whenever the creditor must resort to the aid of a court of equity to subject them to his claim. 58 . A lien created by the common law or by statute will not be de- stroyed in equity on distributing the fund on which it is impressed, ■ Gilson, 1 White & T. Load. Cas. Eq. 178. • v. Cole, "> N. Y. 124; Hunt v. Rousmanier, 8 Wheat. 211, 212; Ex Eli whill, 17 Yes. 514, 526, 527. well v. Failor, 1 Ohio St. 327; 1 Story, Eq. Jur. § 67f; post, 252. -IT,. 69 Post, 256. '• Day v. Washburn, 24 How. 352 357; Wabash & E. Canal Co. v. Beers, 2 Black, t is : Bank of Rochester v. Emerson, 10 Paij;e, 350. Louis v. O'Nell Lumber Co., 114 Mo. 74, 21 S. W. 484. Ch. 3] RESTRICTIVE MAXIMS. 33 and the legal priority will be protected and preserved; for in this respect equity follows the law. 68 RESTRICTIVE MAXIMS. 15. Equity follows the law: (a) As regards legal estates, rights, and interests, equity is bound by the rules of law. (b) As regards equitable estates, rights, and inter- ests, equity acts in analogy to the rules of law, whenever an analogy clearly subsists. We have already seen that equity jurisprudence has its origin in the failure of the common law to recognize and to adequately pro- tect certain rights. 60 Manifestly, therefore, the maxim now under consideration is not of universal application, and its chief use has been stated to be the anticipation of a hasty generalization on the part of the student that equity wantonly disregards the provisions of the common and statute law. 61 However, legal rights, clearly defined and established, cannot be changed or unsettled by a court of equity when dealing with them ; and in such instances the maxim is strictly applicable. 62 Thus, in England the court of chancery never interfered with the rule of primogeniture; 63 and in this country it has been held that a con- tract imposing no legal obligation cannot be enforced in equity. 64 Equitable estates, rights, and interests, though called into exist- 69 Codwise v. Gelston, 10 Johns. 507 ; Lidderdale v. Robinson, 12 Wheat. 594; Johnson v. Straus (0. C. Va.) 4 Hughes, 621-639, 26 Fed. 57. eo Ante, 3. ei Smith, Pr. Eq. p. 11. 62 Magniac v. Thompson, 15 How. 281; Mathews v. Mobile Mut. Ins. Co., 75 Ala. 85, 90. 63 Snell, Eq. p. 17. 64 Hedges v. Dixon Co., 150 U. S. 182, 14 Sup. Ct. 71; Henderson v. Over- ton, 2 Yerg. 394. Lord Chancellor Talbot long ago refused to decree against a settled rule of law, saying: "There are instances, indeed, in which a court of equity gives a remedy where the law gives none; but where a particular remedy is given by the law, and that remedy bounded and circumscribed by particular rules, it would be very improper for this court to take it up where eq.jur. — 3 THE MAXIMS OF EQUITY. [Ch. 3 ence In disregard of the common law, nevertheless partake of the same rales which govern corresponding legal estates, rights, and Interests." Thus, words of limitation used in the creation of exe- , -nt.il trasts will be given the same construction and effect as if used in creating legal estates; 60 equitable estates are subject to the Bame canons of descent as legal estates, excepting dower rights; 67 and proceedings in equity must generally be brought within the Btatutory period of limitations prescribed for legal proceedings of a similar kiud. 68 Further than this, the rules governing the admis- sibility and weight of evidence and the construction of contracts are the Bame at law and in equity. 69 the liw leaves It. and to extend it further than the law allows." Heard v. Stanford, Gaa t. Talb. 173. And see, also, ante, 19, maxim "No right without a remedy." The rule with respect to equitable estates was stated as follows by Sir Joseph Jekyll, in Cowper v. Cowper, 2 P. Wms. 720, 753: "The law is clear, and rourts of equity ought to follow it in their judgments concerning titles to equitable estate: otherwise great uncertainty and confusion would come. And, though proceedings in equity are said to be secundem discretionem boni v.'ii, yet when it is asked, 'Vir bonus est quis?' the answer is 'Qui consulta pa tram, qui leges juraque servat' (Who is the good man? He who maintains the opinions of his predecessors, and the laws and decisions.) And as it is said in Kooke's Case, 5 Coke, 99b, that discretion is a science not to act arbi- trarily according to men's wills and private affections, so the discretion which rated here is to be governed by the rules of law and equity, which are not to oppose, but each in its turn to be subservient to, the other. This dis- cretion in some cases follows the law implicitly; in others, assists it, and ad- s the remedy; in others, again, it relieves against the abuse, or allays the rigor of it; but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this court. That is a discretionary power, which neither this nor any other court, not even the highest, acting in a judicial capacity, is by the constitution intrusted with." I>il>rill v. Carlisle, 48 Miss. 391. See, also, post, 182, "Interpretation of wrper v. Cowper, 2 P. Wms. 720; Cross v. De Valle, 1 Cliff. (U. S.) 282, Fed. Cas. No. 3,430. Uingshead v. Webster, 37 Ch. Div. G59; Upham v. Wyman, 7 Allen, times, however, laches of complainant will cause a court of equity to refuse relief, though the statute of limitations has not run. See post, 14. «» In re T< rry and White's Contract, l}2 Ch. Div. 21. In this case Lord Esher "I doubt myself * * * whether there are any principles of law Ch. 3] RESTRICTIVE MAXIMS. o5 16. Where the equities are equal, the law will prevail. This maxim applies whenever both parties are equally entitled to the protection of a court of equity, and one of them, in addition to his equitable rights, obtains the legal title to the subject-matter in controversy. In such a case, equity does not aid either party, but leaves the matter to depend on the legal title. 70 Thus, a pur- chaser who pays a valuable consideration, without notice of a prior outstanding equitable title, stands on as high ground in equity as the holder of a prior equitable title; and, if he obtains the legal title before he has notice of the prior equity, the legal title pre- vails. 71 The English doctrine of tacking is another illustration of this maxim, viz.: A third mortgagee, who advances his money which were differently affirmed in the old court of equity and the old courts of common law. These courts dealt with the same matters for the purpose of different remedies, and therefore were necessarily looking at the same matters from different points of view. But it has been often said that the rules of evi- dence in the court of equity were different from those in the courts of common law, and that a different construction was put upon the same instrument: that the same instruments in the same words would be construed in one way in a court of equity and in another way in a court of common law; and it has been said that that which in the one court would have been deemed to be neither immoral or dishonest was in the other court deemed to be both im- moral and dishonest. Ever since I have been in this court of appeal I have been trying to point out, not the differences, but the resemblances and the identities, between law and equity; and I now protest against each and every one of those alleged doctrines. I protest most strongly that evidence was al- ways the same in the court of equity as in the courts of common law as to its effect in finding out the truth. What an absurdity it would be if the same evidence to prove a given fact before one of two tribunals should be taken to prove it, and before the other tribunal should be taken not to prove it! The idea seems to me to be monstrous; and, as to a matter being called im- moral and dishonest in one court and moral and honest in another, if the law were so, I should consider it perfectly hateful that a man should be branded with fraud or with dishonesty according to the court in which his adversary brought the suit. It seems to me to be equally absurd and ridiculous to sup- pose that the same words, in the same contract, should be held to have one meaning in a court of law, and another in a court of equity." 70 Thorndike v. Hunt, 3 De Gex & J. 563; Sturge v. Starr, 2 Mylne & K. 195; Boone v. Chiles, 10 Pet, 210; Peiffer v. Bates, 45 N. J. Eq. 311, 19 Atl. 612. 71 Crump v. Black, 6 Ired. Eq. 321, Jones v. Zollicoffer, N. C. Term. R. 212; Hoult v. Donahue, 21 W. Va. 294, 300; Carlisle v. Jumper, 81 Ky. 282; Bas- 36 THE MAXIMS OF EQUITY. [Oh. 3 without notice of the second mortgage, has an equal equity with the second mortgagee, and, by afterwards purchasing the first mort- the third mortgagee obtains the legal title, and is thus en- titled to priority over the second. 72 17. Where there are equal equities, the first in order of time shall prevail. The meaning of this maxim is that, as between persons having only equitable interests, priority in time gives the better equity, if their Interests are in all other respects equal. In other words, in a , nut, st between persons having only equitable interests, priority of tin!' 1 is the ground of preference last resorted to; i. e. a court of equity will not prefer the one to the other on the mere ground of priority of time, until it finds, upon an examination of their relative merits, thai there is no other sufficient ground of preference be- tween them; and if one has, on other grounds, a better equity than the other, priority of time is immaterial. 73 Thus, as between unre- corded mortgages, the one first executed is entitled to priority, since the equities of the mortgagees are in other respects equal; 74 but, as against a voluntary conveyance, a subsequent purchaser for value without notice has the superior equity, and is entitled to priority. 75 18. He who seeks equity must do equity. LIMITATION — The maxim does not apply to equi- ties other than those growing* out of the transac- tion which forms the subject of plaintiff's suit, nor to equities existing in favor of third persons not parties to the suit. Nosworthy, 2 White & T. Lead. Cas. Eq. 102; Attorney General v. Wil- kins. 17 Beav. 285. S< e post, 80, as to doctrine of notice. ii Marsh v. Lee, 1 White & T. Lead. Cas. Eq. 616, 2 Vent. 337; Brace v. less "f Marlborough, 2 P. Wms. 491. : Rice • Ri( ■ . 2 Drew. 73; Phillips v. Thillips, 4 De Gex, F. & J. 208, 215. rry v. Mutual Ins. Co., 2 Johns. Ch. 603. See, also, Grimstone v. Carter, -■ . 121; Ingram v. Morgan, 4 Humph. (Tenn.) 66; Heyder v. Excelsior Building Loan Ass'n, 42 N. J. Eq. -in. - :. 407, 408, 8 Atl. 310. linson v. Cathcart, 2 Cranch, C. C. 590, Fed. Cas. No. 11,94a See, also, 95, "Bona Fide Purchasers." Ch 3] RESTRICTIVE MAXIMS. 37 The maxim now under consideration, together with the two fol- lowing, "He who comes into equity must come with clean hands," and "Equity aids the vigilant," illustrate a great distinctive and governing principle of equity, — that nothing can call a court of equity into activity but conscience, good faith, and reasonable dili- gence. 76 The meaning of the maxim is that one invoking the aid of a court of conscience will not be granted the relief to which he is otherwise entitled, except on equitable terms. 77 These terms will be imposed as the price of the decree given him; and, if he de- clines to comply with them, his suit will be dismissed. 78 In the earlier history of equity jurisprudence the wife's equity to a settlement afforded the principal illustration of this maxim. Whenever a husband resorted to equity to reduce his wife's personal property to possession, relief was granted him only on condition that he make a fair settlement out of the property for the benefit of the wife and children. 79 So, also, if a borrower of money on usurious interest seeks the cancellation of the instrument which evidences the debt, equity will grant relief only on condition that payment be made the lender of what is bona fide due him, 80 unless there is a statutory prohibition against imposing such condition. 81 And, generally, a contract void for illegality, or incapable of enforcement even in equity, will not be canceled unless the party seeking the relief will do equity by paying whatever is actually due thereon. 82 76 Snell. Eq. p. 39; Lord Camden in Smith v. Clay, 3 Brown, Ch. 640, note. •n Kline v. Vogel, 90 Mo. 239, 245, 1 S. W. 733, and 2 S. W. 408. 78 Alexander v. Merrick, 121 111. 606, 614, 13 N. E. 190. 79 Sturgis v. Champneys, 5 Mylne & C. 105. so Fanning v. Dunham, 5 Johns. Ch. 122, 142-144; Noble v. Walker, 32 Ala. 450; Rogers v. Torbut, 58 Ala. 523; Whatley v. Barker, 79 Ga. 790, 4 S. E. 387. si Bissell v. Kellogg, 60 Barb. 617; Scott v. Austin, 36 Minn. 460, 32 N. W. 89, 864. 82 Deans v. Robertson, 64 Miss. 195, 1 South 1S9; Tuthill v. Morris, 81 N. Y. 94, 100. Some of the cases seem to hold that the equities which the maxim supposes must be capable of enforcement in an independent action either at law or in equity. Finch v. Finch, 10 Ohio St. 501, 508; Otis v. Gregory, 111 Ind. 504, 509, 13 N. E. 39; Hanson v. Keating, 4 Hare, 1. But certainly a contract tainted with usury or any other illegality is not capable of judicial enforcement in an independent action; and yet the courts have always re- quired payment of what is equitably due before decreeing cancellation. See Pom. Eq. Jur. § 386. Till; MAXIMS OF KQUITY. [Ch. 3 One who comes into equity to have a void judicial sale of his land Bel aside as a cloud on his title must do equity by tendering what is justly due on the debt for which the sale was made. 83 The doctrine of equitable estoppel has its origin in this maxim; and whenever the owner of land stands by and knowingly suffers a third person, who is ignoranl of his title, to expend money on the estate in im- provements, equity will grant him relief only on condition that he compensate the third person for such expenditures. 81 iatiana. The maxim is applied only where the adverse equity to be se- cured or awarded grows out of the very controversy before the court, or out of such transactions as the record shows to be a part of its history, or where it is so connected with the cause in litigation as in he presented in the pleadings and proofs, with full opportunity afforded to the party thus recriminated to explain or refute the charges. 88 Furthermore, the maxim is confined exclusively to cases in which there is an equity between the parties; an equity in favor of a third person against plaintiff can never be available, under this maxim, to the defendant. 88 19. He who comes into equity must come with clean hands. LIMITATIONS— (a) The maxim does not apply to mis- conduct of complainant in no wise affecting the equitable relations between the parties, and not arising out of the transaction as to which the relief is sought. «3 Loney v. Courtnay, 24 Neb. 580, 39 N. W. 616; Blackburn v. Clarke, 85 T< nil. 506, 3 S. W. 505; McQuddy v. Ware, 20 Wall. 14-20. :i. Eq. p. 40; Pratt v. Thornton, 28 Me. 355; Dilworth v. Sinderling, 1 Bin. (Pa.) 488. For other illustrations of this maxim, see Yard v. Pacific Mut. ., 10 N. J. Eq. 480; Jones v. Roberts, 6 Call (Va.) 187. Where specific inance is sought, the court will require the party who seeks it to show formance or readiness to perform on his part, or a default on the other Bide, which utterly excuses him. McNeil v. Magee, 5 Mason, 244, Fed. Cas. - 915. ■ k v. Johnson, 40 N. Y. 015; Mahoney v. Bostwick, 96 Cal. 53, I Jolvin v. Hartwell, 5 Clark & F. 484. laud v. Rives, 1 Rand. (Va.) 282. Cli. oj RESTRICTIVE MAXIMS. 39 (b) Though both parties have been engaged in a fraudulent or illegal transaction, equitable re- lief will be granted complainant if public pol- icy is advanced thereby, or if he -was not in equal -wrong with defendant. This maxim, or, as it is otherwise expressed, "He that hath com- mitted iniquity shall not have equity," is the equitable application of a fundamental principle pervading the entire body of the law — that no one shall be permitted to profit by his own fraud, or take advantage of his own wrong, or to found any claim in his own in- iquity, or to acquire property by his own crime. 87 The meaning of the maxim is that a court of equity will not lend its active aid to one who has been guilty of unconscientious or op- pressive conduct, or who has been in equal wrong with defendant, touching the transaction as to which the relief is sought; but in such cases the court will leave the parties where it finds them, with- out interfering in behalf of either. 88 The maxim applies not only to fraudulent and illegal transac- tions, but to any unrighteous, unconscientious, or oppressive conduct by one seeking equitable interference in his own behalf. Thus, a label of a trades-union which on its face shows a purpose to stigma- tize all craftsmen not members of the union, irrespective of their character, will not be protected from infringement by a court of STRig-gs v. Palmer, 115 N. Y. 506, 22 N. E. 188. In this case it was held that a beneficiary under a will who murders the testator to prevent a revoca- tion, and to obtain a speedy enjoyment of the property, will not be permitted to take either under the will or as heir or next of kin, though there is no law declaring a forfeiture; approving New York Mut. Life Ins. Co. v. Armstrong. 117 U. S. 591, G Sup. Ct. 877, holding that the beneficiary under a policy of life insurance who murders the insured cannot recover on the policy, and dis- approving Owens v. Owens, 100 N. C. 240, 6 S. E. 794, holding that a woman who murders her husband may claim dower in his land. In Shellenberger v. Ransom (Neb.) 59 N. W. 935, the doctrine of Riggs v. Palmer, is rejected; and it is held that a murder perpetrated for the purpose of inheriting the estate of the murdered person will not justify a court in adding an exception to the statute of descent so as to divest the murderer of the fruits of his crime. ss Kahn v. Walton, 46 Ohio St. 195, 20 N. E. 203; Atwood v. Fisk, 101 Mass. 363; Harrington v. Bigelow, 11 Paige, 349; Weakley v. Watkins, 7 Humph (Tenn.) 356. 40 Tin: maxims of equity. [Ch. 3 equity."* A contracl which is unequal, oppressive, or improvident will not be specifically enforced, 00 nor a nuisance abated at suit He maintaining (he same nuisance. 01 qnenl application of this maxim is made to the case of a com- plainant guilty of fraud in respect to the matter in litigation. 92 Tims, a grantor in a conveyance executed to defraud creditors can- not maintain a suit in equity for its cancellation; 93 and a trade- mark containing false representations calculated to deceive the I- nl. lie will noi be protected in equity. 94 So, also, wh.re both parties have been engaged in an illegal transaction, neither is, in general, entitled to the aid of a court of equity as against the other, who has obtained the fruits of the crime, it matters not whether the transaction be merely prohibited by sMi ute, or whether it is intrinsically immoral or vicious. 95 Thus, all instruments executed to give effect to an illegal agreement are tainted with the illegality, and will neither be canceled nor en- 89 MeVey v. Brenrlel, 144 Pa. St. 235, 22 Atl. 912. This case is justly criti- cised in Cohn v. People, 149 111. 486, 37 N. E. GO, on the ground that the label in question does not stigmatize non-union labor. »o Friend v. Lamb. 152 Pa. St. 529, 25 Atl. 577; Bagwell v. Bagwell, 72 Ga. 92; Mansfield v. Sherman, 81 Me. 3G5, 367, 17 Atl. 300; Willard v. Tayloe, 8 Wall. 557, 567. See, also, post, 273. 9i Cassady v. Cavenor, 37 Iowa, 300; Medford v. Levy, 31 W. Va. 649, 8 S. E. 302. Equity does not aid oppressive conduct, Hunter v. Carroll, 64 N. H. 572, 15 Atl. 17; nor give complainant relief against his own vice and folly, Rozell v. Bedding, 59 Mich. 331, 26 N. W. 498; or from the consequence of a risk vol- untarily assumed, Patterson v. Brown, 32 N. Y. 81. and of infant, Overton v Banister, 3 Hare, 503; Nelson v. Stocker, 4 De Gex & J. 458, 464. See, generally, Wheeler v. Sage, 1 Wall. 529; Pearce v. Ware, 94 Mich. 321, 53 N. W. 1106; Scranton Electric Light & Heat Co. v. Scranton Illuminating Heat & Power Co., 122 Pa. St. 154, 15 Atl. 446; Bleak- ly "s Appeal, 66 Fa. St. 187; Walker v. Hill, 22 N. J. Eq. 513; Musselman v. Kent, 33 Ind. 452. Denl v. Ferguson, 132 U. S. 50, 10 Sup. Ct. 13; Freeman v. Sedwick, 6 (Jill (Mil.) 28. But a debtor may abandon his fraudulent purpose, and may maintain suit to compel a reconveyance for the benefit of his creditors. Curll v. Emery, 148 Mass. 32, 18 N. E. 574. 9* Joseph v. Macowsky, 96 Cal. 518, 31 Pac. 914; Prince Manuf'g Co. v. Prime's Metallic Paint Co., 135 N. Y. 24, 31 N. E. 990. 1; Qg a v. Bigelow, 11 Paige. 349; Gordon Tp. v. Shoemaker, 12 Ohio, St. 624; Sample v. Barnes, 14 How. 70. Gambling transactions, Smith v. Cb. 3] RESTRICTIVE MAXIMS. 41 forced in equity; 98 nor can a participant in an illegal transaction compel his confederate to account for property which has come into the latter's possession as a result of the crime. 87 Limitations. 1. The maxim applies only to the conduct of the complainant in respect to the particular transaction under consideration, for the court will not go outside of the case to examine his conduct in other matters, or to question his character for fair dealing. 08 Thus, a violation of a statute with respect to platting land within city limits does not prevent the owner from resorting to equity to enjoin the flooding of the property by a private person ; " fraud in obtaining a patent of public lands from the federal government does not pre- vent the reformation of a deed whereby one of the participants in the fraud, for an independent valuable consideration, conveys his interest in the land to his confederate; 100 and the fact that plain- tiff coerced his wife into signing a mortgage given to cover a bal- ance found due defendant on the settlement of an account is no ground for refusing to open the settlement for defendant's fraudu- lent imposition. 101 So, also, the fact that the parties have been engaged in illegal transactions, which have been fully completed, will not prevent one of them from resorting to equity for relief as to subsequent independent or collateral contracts or transactions, in which the original illegal transaction forms no part of the con- sideration. 102 Thus, a partner's sale of his interest in the firm to Kammerer, 152 Pa. St. 98, 25 Atl. 165; Kahn v. Walton, 46 Ohio St. 195, 20 N. E. 203; Atwood v. Fisk, 101 Mass. 363; Weakley v. Watkins, 7 Humph. (T'enn.) 356. ss Blasdel v. Fowle, 120 Mass. 447. »7 Snell v. Dwight, 120 Mass. 9, and cases there cited. 98 Dering v. Earl of Winchelsea, 1 Cox, 318; Lewis' Appeal, 67 Pa. St. 153, 166; Langdon v. Templeton, 66 Vt 173, 28 Atl. 866; Edison Electric Light Co. v. Sawyer-Man Electric Co., 3 C. C. A. 605, 53 Fed. 592. 99 Sylvester v. Jerome (Colo. Sup.) 34 Pac. 760. ioo Foster v. Winchester, 92 Ala. 497, 9 South. 83. ioi Bateman v. Fargason, 2 Flip. 660, 4 Fed. 32. 102 Armstrong v. Toler, 11 Wheat. 258, 271; Tenant v. Elliott, 1 Bos. & P. 3; Thomson v. Thomson, 7 Ves. 470; Sharp v. Taylor, 2 Phil. Ch. 801. In Sykes v. Beadon, 11 Ch. Div. 170, 193, 194, Jessel, M. R., says: "You cannot ask the aid of a court of equity to carry out an illegal contract; but in cases 42 THE MAXIMS OF EQUITY. [Ch. 3 his copartner will be set aside in equity for the latter^ fraudulent misrepresentation as to the value of the firm assets, though they were acquired iu illegal transactions. 10 ' 2. Again, when the parties to a fraudulent or illegal transaction are doI equally in the wrong, equity will not refuse relief to the more excusable of the two, especially if public policy is considered as advanced thereby. 104 Thus, a borrower who has joined in violat- ing the usury law will, nevertheless, be relieved from his contract in equity, on the theory that the law was enacted to prevent op- 3ion, and that public policy will be advanced by assisting the oppressed party who is not in pari delicto. 105 So, also, a conveyance to defraud creditors will be set aside if the grantee occupied confi- dential relations towards the grantor, and exerted undue influence in procuring it. 108 20. Equity aids the vigilant, not those who slumber on their rights. LIMITATION — Legal disabilities, such, as infancy, cov- erture, and insanity, excuse delay; nor is the sov- ereign power chargeable with laches in respect to public rights and interests. No rule of law is better settled than that a court of equity will discourage stale demands, for the peace of society, by refusing to where the contract is actually at an end, or is put an end to, the court will interfere to prevent those who have, under the illegal contract, obtained money belonging to other persons, on representation that the contract was legal, from keeping that money. * * * It does not follow that you cannot, in some recover money paid over to third persons in pursuance of the contract; and it does not follow that you cannot, in other cases, obtain, even from the parties to the contract, moneys which they have become possessed of by repre- sentations that the contract was legal, and which belong to the persons who wish to recover them." 103 Brooks v. Martin, 2 Wall. TO. io* Reynell v. Sprye, 1 De Gex, M. & G. 660, 679; Tracy v. Talmage, 14 N. Y. 162; Duvall v. Wellman, 124 N. Y. 158, 26 N. E. 343. os Adams. Eq. p. 175; Peters v. Mortimer, 4 Edw. Ch. 279; Fanning v. Dunham. 5 Johns. Ch. 122, 142-144. 08 Ford v. Harrington, 16 N. Y. 285; Freelove v. Cole, 41 Barb. 318, affirmed •11 N. Y. 619. Ch. 3] RESTRICTIVE MA.XIMS. 43 interfere where there have been gross laches in prosecuting rights, or where long acquiescence in the assertion of adverse rights has occurred. 107 The rule is peculiarly applicable when the difficulty of doing entire justice arises through the death of the principal participants in the transaction complained of, or of the witness or witnesses, or by reason of the original transactions having become so obscured by time as to render the ascertainment of the exact facts impossible. 108 Each case must necessarily be governed by its own circumstances ; 109 since, though the lapse of a few years may be sufficient to defeat the action in one case, a longer period may be held requisite in another, dependent upon the situation of the parties, the extent of their knowledge, or means of informa- tion, 110 great changes in values, 111 the want of probable grounds for the imputation of intentional fraud, the destruction of specific testi- mony, the absence of any reasonable impediment or hindrance to the assertion of alleged rights, 112 the intervening rights of third persons, 113 and the nature of the relief sought. 114 Whenever the statute of limitations applies exclusively to legal actions, courts of equity are, of course, not strictly bound by it; but they generally require that analogous equitable actions be brought within the statutory period, on the principle that equity 107 Hammond v. Hopkins, 143 U. S. 224, 12 Sup. Ct 418; Akins v. Hill, 7 Ga. 573, 577; March v. Whitmore, 21 Wall. 17S; Castner v. Walrod, 83 111. 171; McDonnel v. White, 11 H. L. Cas. 570; Catlin v. Green, 120 N. Y. 441, 24 N. B. 941. los Harrison v. Gibson, 23 Grat. 212; Lawrence v. Rokes, 61 Me. 38; Hatcher v. Hall, 77 Va. 578; Barnes v. Taylor, 27 N. J. Eq. 259. 109 Reynolds v. Sumner, 126 111. 58, 18 N. E. 334; Bell v. Hudson, 73 Cal. 285, 14 Pac. 791. no Lindsay Petroleum Co. v. Hurd, L. R. 5 P. C. 221; Boswell v. Coaks, 27 Ch. Div. 424, 457; Bausman v. Kelley, 38 Minn. 197, 36 N. W. 333. in Bliss v. Pritchard, 67 Mo. 187; Allen v. Allen, 47 Mich. 79, 10 N. W. 113; Pratt v. California Min. Co., 24 Fed. 869; Twin-Lick Oil Co. v. Marbury, 91 U. S. 587. 112 Hammond v. Hopkins, 143 U. S. 224, 250, 12 Sup. Ct. 418. us Ridgway v. Newstead, 2 Giff. 492; Lehmann v. McArthur, 3 Ch. App. 496. ii4 Length of time sufficient to preclude rescission may not bar reformation of contract Koons v. Blanton, 129 Ind. 383, 27 N. E. 334. .w. 1 " In many of the - he time within which e brought robed by rtatnte; but it hit fact vay the right of the • ground of laches, period of limitations. 11 * t$. -ui jurii act in hit own behalf, neither a married woman under t; ility ol I Me with lacl 5 0, with one under the di-:- _ . ■ ef to enforce a a public interest is not barred by the la ■: L 121 I 27. Ala. 402; Whalej v. Elliot, 1 A. KL M ■ lid. 277. r. I M Co., 46 M'l. ',: U. S. v. Beebe, 127 U. & . r;. EL, 113 Q. 8. 12 r ,* 80ft Ch. 4] EQUITABLE ESTOPPEL. 45- CHAPTER IV. THE DOCTRINES OF EQUITY-ESTOPPEL, ELECTION, SATISFAC- TION, PERFORMANCE, AND CONVERSION. 21 Equitable Estoppel. 22 Essential Elements. 23. Effect of Estoppel. 24. Election. 25. Conditions Requiring Election. 20. Election between Dower and Testamentary Gift 27. Mode of Election. 28. Ascertainment of Values. 29-31. Election by Persons under Disability. 32. Effect of Election. 33. Satisfaction. 34-35. Admissibility of Evidence as to Intention. 36. Classification. 37. Satisfaction of Debt by Legacy, etc. 38. Double Provisions for Child by Parent or Person In Loco Paren- tis. 39. Ademption. 40. Person in Loco Parentis. 41. Presumption in Favor of Ademption. 42. Covenant to Make Settlement Followed by Testamentary Provision. 43. Performance. 44. Conversion. 45. Words Sufficient to Work a Conversion. 40. Time of Conversion. 47. Effect of Conversion. 4S-49. Total or Partial Failure of Purposes for which Conversion Is Directed. 50. Double Conversion. 51. Reconversion. EQUITABLE ESTOPPEL. 21. "Where one voluntarily, by his words or conduct, causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position for the worse, the former 46 THE DOCTRINES OF EQUITY. [Ch. 4 is concluded from averring against the latter a different state of things as existing at the same time. 1 Tin's branch of the law of estoppel originated in the English court of chancery. 8 It was definitely adopted in England as a common-law doctrine in the leading case of Pickard v. Sears; 3 and it is now ad- ministered almost as freely by courts of law as by courts of equity. 4 The doctrine rests on the broad ground of public policy and good faith, and is interposed to guard against fraud and prevent injustice. 5 Its vital principle is that he who, by his language or conduct, leads another to do what he would otherwise not have done, shall not sub- ject such person to loss or injury by disappointing the expectations on which he acted. 6 It is always applied so as to promote the ends i Pickard v. Sears, G Add. & E. 469; Freeman v. Cooke, 2 Exch. 654. "Where one voluntarily, by acts or declarations, represents a certain state of facts to exist, and thereby procures a change of conduct In another, he cannot afterwards be heard to assert a contrary state of facts, if injury results to, or fraud is perpetrated thereby upon, the party who has acted relying upon the truth of his representations." Gillett v. Wiley, 126 El. 310, 323, 19 N. E. 287. "Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might, perhaps, have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of con- tract, or of remedy." 2 Pom. Eq. Jur. § 804. 2 In Keate v. Phillips, 18 Ch. Div. 560, 577, Vice Chancellor Bacon said: "The common-law doctrine of estoppel was, as I have said, a device which the common-law courts resorted to at a very early period to strengthen and lengthen their arm, and, not venturing to exercise an equitable jurisdiction over the subject before them, they did convert their own special pleading tactics into an instrument by which they could obtain an end which the court of chan- cery, without any foreign assistance, did at all times, and I hope will at all times, put in force in order to do justice." See, also, as to origin of equitable ipel, Born v. Cole, 51 N. H. 2S7. Adol. & E. 169, decided in 1837. * It has been held by some courts that the doctrine of equitable estoppel can- not be invoked in legal actions involving the title to real estate. Hayes v. Livingston, 34 Mich. 384; St Louis Nat Stock Yards v. Wiggins Ferry Co., 102 111. 51 l. o Shipley v. Fox, 09 Md. 572, 579; 16 Atl. 275. • Dickerson v. Colgrove, 100 U. S. 578, 580. Cll. 4] EQUITABLE ESTOPPEL. 47 of justice, is available only for protection, and cannot be used as a weapon of assault 7 SAME— ESSENTIAL ELEMENTS. 22. The elements essential to create an equitable estop- pel are: (a) Words or conduct by the party against whom the estoppel is alleged, amounting to misrepresenta- tion or concealment of material facts. 8 The words relied on to work an estoppel may be either written or spoken; and misleading silence, where there is a duty to speak, is as effectual to create an estoppel as a direct representation. He who is silent when it is his duty to speak will not be permitted to speak when it is his duty to be silent. 9 The representation must, however, be certain, and of a material character, and such as would naturally lead an ordinarily prudent man to act on it. 10 As a rule, it must relate to a matter of fact, and not of law or opinion, 11 and must relate to a past or present, as distinguished from a future, state of things. 12 (b) The party against ■whom the estoppel is alleged must have knowledge, actual or imputed, of the untruthfulness of the representations made by him. 13 t Dickerson v. Colgrove, 100 U. S. 578, 580; Seton v. Lafone, 19 Q. B. Div. 68, 70. » Stevens v. Dennett, 51 N. H. 333, 334; Pittsburg v. Danforth, 56 N. H. 278. 9 Swayze v. Carter, 41 N. J. Eq. 231, 233, 3 Atl. 706; Morgan v. Railroad Co., 96 U. S. 716, 720; Vreeland v. Ellsworth, 71 Iowa, 347, 32 N. W. 374; Leather Manuf rs' Nat. Bank v. Morgan, 117 U. S. 96, 108, 6 Sup. Ct. 657; Gill v. Har- din, 48 Ark. 409, 3 S. W. 519; State v. Wertzell, 62 Wis. 188, 22 N. W. 150; Gregg v. Wells, 10 Adol. & E. 90. "Blodgett v. Perry, 97 Mo. 263, 273, 10 S. W. 891; Howe Mach. Co. v. Farrington, 82 N. Y. 121; The Belle of the Sea, 20 Wall. 429. "Whitwell v. Winslow, 134 Mass. 346, 347; Chatfield v. Simonson, 92 N. Y. 209, 218; So ward v. Johnston, 65 Mo. 102. 12 Jackson v. Allen, 120 Mass. 79; White v. Ashton, 51 N. Y. 280; Starry v. Korab, 65 Iowa, 267, 21 N. W. 600; Insurance Co. v. Mo wry, 96 U. S. 544, 547. is Bigelow, Estop, p. 609; 2 Pom. Eq. Jur. § 809. 4S THE DOCTRINES OF EQUITY. [Ch. 4 If one knowingly makes a false representation in reference to a mat. rial matter, the ease is clear. If he recklessly makes a rep- resentation without knowing whether it be true or false, he is equally bound by it; for the affirmation of what one does not know or believe to be true is, equally, in morals and in law, as unjustifiable as t he affirmation of what is known to be positively false. 1 * So, also, u misrepresentation, innocently made, and with a belief in its truth will work an estoppel where the party making it was in a position in which he ought to have known the actual facts. 15 (c) The party relying on the estoppel must show that he was ignorant of the facts, and that such ig- norance was not chargeable to his neglect. 16 One who has knowledge of the facts, or being put on inquiry, and having the means of knowledge within his reach, fails to use reason- able diligence to ascertain the truth, cannot claim an estoppel; 17 nor can he claim an estoppel if he knew the facts when he acted on the representation, though he was ignorant of them when the represen- tation was made. 18 (d) The party estopped must intend, or be in a position to reasonably anticipate, that his conduct or rep- resentation will be acted on by the party assert- ing the estoppel, or the public generally. The party against whom the estoppel is alleged need not intend to deceive or mislead; it is sufficient if the act or declaration was calculated to and did in fact mislead another acting in good faith ami with reasonable diligence. 19 The use of the term "fraud" is " 1 Story, Eq. Jur. § 193; Preston v. Mann, 25 Conn. 118, 129. is Irving Nat. Bank v. Alley, 79 N. Y. 536, 540; Horn v. Cole, 51 N. H. 287. ia Bigelow, Estop, p. G29, 2 Pom. Eq. Jur. § 810. " steel v. St. Louis Smelting & Refining Co., 106 U. S. 447, 1 Sup. Ct. 3S9; Bobbins v. Potter, 98 Mass. 532; Odlin v. Gove, 41 N. H. 465; Lux v. Haggin, 255, 266, 10 Pac. 674. is Freeman v. Cooke, 2 Exch. 654. io Blair v. Wait, <;t \. Martin, 3 Serg. & R. 423; Mitchell v. Dawson, 23 W. Va. 86; Kit- -e v. Chapman, 36 Iowa, 348; Baldwin v. Sager, 70 111. 503; Birdsall v. . 29 Neb. 679, 45 N. W. 921. 87 Cram v. Mitchell, 1 Sandf. Ch. 251. Oh. 5] BONA FIDE PURCHASERS. 9? from taking any unconscientious advantage of another, even through the forms or technicalities of law, together with an absence or belief of facts which would render the transaction unconscientious. 88 Not only must there be an absence of positive fraud, but any inequitable conduct by the purchaser towards his grantor, or the latter's cred- itors, defeats the protection which equity would otherwise accord a bona fide purchaser. 89 We have already seen that gross inade- quacy of consideration is a badge of fraud, 90 and it has also been held that a mortgagee cannot be considered a bona fide purchaser where there is usury in the debt secured. 91 Notice. The question as to what constitutes notice has already been dis- cussed. 92 It is settled that one who pays the purchase money with notice, in any of its various forms, either actual or con- structive, of adverse rights in the property purchased, takes sub- ject to those rights, and will not be protected as a bona fide pur- chaser. 93 It remains, however, to state a few additional rules re- specting notice as affecting bona fide purchasers: 1. The weight of authority is that a grantee in a quitclaim deed which conveys only the "right, title, and interest of the grantor" is not a bona fide purchaser, because the deed itself is notice that he is getting only a doubtful title. 94 But there are other cases ss Gress v. Evans, 1 Dak. 387, 46 N. W. 1132. sa 2 Pom. Eq. Jur. § 762. »o Ante, p. 96. si Smith v. Lehman, Durr & Co., 85 Ala. 394, 5 South. 204. Where a land grant by the federal government is made on condition that a certain road be completed by the grantees, purchasers from the grantees are not charge- able with bad faith because they fail to make a personal examination of the road to ascertain whether it is completed, when the governor of the state, to whose determination the matter had been committed by statute, certifies that the road is completed. U. S. v. California & O. Land Co., 148 U. S. 31, 13 Sup. Ct. 458. Other recent cases involving the question of good faith are Billings v. Aspen Mining & Smelting Co., 2 C. C. A. 252, 51 Fed. 338; Tarking- ton v. Purvis, 128 Ind. 182, 25 N. E. S79; Barrett v. Sear, 128 Ind. 261, 27 N. E. 607. 92 Ante, p. 80 et seq. 93 l Story, Eq. Jur. § 395; Murray v. Ballou, 1 Johns. Ch. 566. a* Martin v. Morris, 62 Wis. 418, 22 N. W. 525; Thorn v. Newsom, 64 Tex. 161; Dodge v. Briggs, 27 Fea. 160; Peters v. Cartier, 80 Mich. 124, 45 N. W. EQ.JUR.— 7 DOCTRINES OK EQUITY. [Ch. 5 holding that a grantee in a quitclaim deed, who in good faith parts wiili a valuable consideration, is entitled to protection, as a bona fide purchaser, equally with a grantee in a deed containing covenants \v;i minting the title. 98 _'. Though a purchaser of property has notice of adverse rights, yet a bona fide purchaser from him will be protected in equity; for . therwise no man would be safe in any purchase, but would be liable to have his own title defeated by secret equities of which he could have no possible means of making a discovery. 96 Bo, also, if a purchaser has notice of adverse rights in the property, vrt li«' will be protected if he purchases from a bona fide purchaser without notice; for otherwise such bona fide purchaser could not enjoy the benefit of his own unexceptionable title. 97 PRIORITIES. Having ascertained what constitutes a bona fide purchaser for value without notice, we are now in a position to inquire when he is • in it led to invoke the protection of a court of equity as against one asserting adverse rights to the property, either legal or equitable. The broad proposition has been laid down that equity will in no case 7.;; Richardson v. Levi, 67 Tex. 359, 3 S. W. 444; Johnson v. Williams, 37 Kan. 179, 14 Pac. 537; Dickerson v. Colgrove, 100 U. S. 578, 584; Baker v. Humphrey , 101 U. S. 494, 499. ■ Nidever v. Ayers, S3 Cal. 39, 23 Pac. 192; Fox v. Hall, 74 Mo. 315; Chap- man v. Sims, 53 Miss. 154. In recent cases questioning prior decisions, the United States supreme court lays uown the proposition that the grantee in a quitclaim deed may be a bona fide purchaser. Moelle v. Sherwood, 148 U. S. 21, 13 Sup. Ct. 426; U. S. v. California & O. Land Co., 148 U. S. 31, 13 Sup. Ct. 458. 9« 1 Story, Eq. Jur. § 409; Harrison v. Forth, Finch, Prec. 51; Paris v. I. .wis, S5 111. 597; Odom v. Riddick, 104 N. C. 515, 10 S. E. 609; Zoeller v. Riley, 100 X. Y. 108, 2 N. E. 388; Somes v. Brewer, 2 Pick. 1S3; Latham v. In man, 88 Ga. 505, 15 S. E. 8. ■ Trull v. Bigelow, 16 Mass. 406; Mott v. Clark, 9 Pa. St 399; Craig v. Zimmerman, 87 Mo. 478; Hayes v. Nourse, 114 N. Y. 606, 22 N. E. 40; Scot- land Co. v. Hill, 132 U. S. 107, 10 Sup. Ct. 26. The second bona fide pur- chaser cannot, however, convey back to his grantor with notice, so as to en- able the latter to take free from the adverse equities. Kennedy v. Daly, 1 Schoak-s & L. 355, 379; Church v. Rutland, 64 Pa. St. 432; Clark v. McNeal, 114 N. Y. 29.1, 21 N. E. 405. Ch. 5] PRIORITIES. 99 give assistance against a bona fide purchaser for value without no- tice, but this proposition is subject to so many exceptions and limita- tions as to be practically valueless. 98 The following statement of the general principles governing courts of equity in determining the priority of adverse claimants to the same property will, it is believed, materially aid the student in understanding the somewhat intricate and perplexing cases on this subject: SAME— UNEQUAL EQUITIES. 63. Where the equities of rival claimants are not equal, he -who has the best equity takes precedence. This principle, though rarely announced in express terms, is one of controlling importance; for the maxims, "Where there are equal equities, the law prevails," and, "Where there are equal equities, the first in order of time prevails," can have no application where the equities are not equal. The following rules have been formulated to determine whether one equity is superior to another: 64. An equity founded on a valuable consideration is superior to one founded on a mere voluntary transfer or gift." We have already seen that, to constitute a bona fide purchaser, there must be the payment of a valuable consideration; in other words, one who acquires an equitable interest in property for a valuable consideration has a superior equity to one who thereafter acquires the legal title by way of gift without knowledge of the prior interest This proposition is illustrated in a somewhat recent case. A woman had been induced to marry a man on the faith of his promise to convey certain land to her. Instead of so doing, he con- veyed it, by way of gift, to a son by a former wife. It was held that the second wife's equity to the land was superior to the legal title of the son, though he knew nothing of his father's fraud, because a mere volunteer, however innocent, cannot retain the fruits of the »8 Haynes, Eq. (5th Ed.) pp. 388-390; 2 Pom. Eq. Jur. §§ 737-746. 8» Adams, Eq. p. 147; 2 Pom. Eq. Jur. § 685. DOCTRINES OF EQUITY. [Ch. 5 fraud. 1 rhis pule is very frequently applied to cases of insolvency and bankruptcy. It is uniformly held that an assignee in insolvency or bankruptcy is merely a volunteer, and takes the property subject to all equities existing against the insolvent. 101 For instance, when property Is held by a bankrupt as trustee, the cestui que trust has a superior equity to the assignee, though no declaration of trust ap- pears "ii record. 10 ' This principle, as we shall hereafter see, is of controlling importance in determining the rights of a grantee in a .•(.iivi'vmimv assailed by the grantors creditors as in fraud of their rights. 103 65. An equity to a specific thing or a specific lien ia superior to an equity general in its scope or nature. 104 A frequent application of this rule is to cases of conflicting rights between a grantee or mortgagee in an unrecorded instrument, and a subsequent judgment creditor of the grantor or mortgagor. In the absence of express statute, the lien of a mortgage on specific land, though not recorded, is superior to the general lien of a subsequent judgment against the mortgagor. 105 So a vendee under an unre- corded deed is entitled to priority over a subsequent judgment against the grantor. 108 When, however, the land is sold on execution under such a judgment, the purchaser, on placing the sheriff's deed on record, will be protected against a prior unrecorded mortgage, since 100 peck v. Peek, 77 Cal. 106, 19 Pac. 227. ioi Dudley v. Easton, 104 U. S. 99, 103; Webber v. Clark, 136 Dl. 256, 26 N. K. 360, and 32 N. E. 748; Kirk v. Roberts (Cal.) 31 Pac. 620. 102 Webber v. Clark, 130 111. 250, 20 N. E. 300, and 32 N. E. 748. "3 See post, 158. Ldams, Eq. p. 147; 2 Pom. Eq. Jur. §§ 720, 721. io3 Sapplngton v. Oesebli, 49 Mo. 244; Carraway v. Carraway, 27 S. C. 570,. 5 S. E. 1"'T; Cburchill v. Morse, 23 Iowa, 229; Jackson v. Dubois, 4 Johns, •JO'.; Hunter v. Watson, 12 Cal. 203. A contrary rule, however, prevails in other states, cbiefly by virtue of statutory provisions. Vreeland v. ClafQiu, 24 N. J. Eq. 313; McFadden v. Worthington, 45 111. 302; Young v. Devries. 31 Gratt 304; Humphreys v. Merrill, 52 Miss. 92; Andrews v. Mathews, 59- <;:t. 400; Anderson v. Nagle, 12 W. Va. 98; Cavanaugh v. Peterson, 47 Tex. 198. io« Schroeder v. Gurney, 73 N. Y. 430; Harral v. Gray, 10 Neb. 180, 4 N. W.. 104U. Ch. 5] PRIOEITIES. 101 the sheriff's deed is treated as if given by the judgment debtor him- self, and conveys precisely what he could have conveyed when the judgment was docketed. 107 Decisions that the specific lien of a pur- chase money mortgage executed contemporaneous^ with the deed is superior to the general lien of an existing judgment against the mortgagor may also be sustained under the above rule, though the reason assigned in some of the earlier cases is that the mortgagor has but an instantaneous seizin, and that the judgment lien can- not therefore attach. 108 Another important application of the prin- ciple is to be found in cases involving the rights of a grantee in a conveyance assailed as in fraud of the grantor's creditors. 109 66. The equity of the party misled is superior to his who has -willfully misled him. 110 Though somewhat analogous to the doctrine of equitable estoppel, this rule existed prior to that doctrine, and is entirely independent of it. The meaning of the rule is that one interested in an estate, who knowingly misleads another into dealing with the estate as if he were not interested, will be postponed to the party misled, and compelled to make his representation specifically good. There is a distinction, however, to be observed between the case where the dis- pute arises between two merely equitable assignees and where the first assignee in order of date has the legal title. It is clear that if a mere equitable owner, by his carelessness, enables a fraud to be perpetrated, the result of which is that either he or some innocent third party must suffer, equity will aid the third party, and not the careless one. Thus, where one having merely an equitable interest in land stands by and sees another purchase the land without giving notice of his equities, the purchaser will take the land discharged of such equities. 111 So, also, it has been held that the failure of an assignee of notes secured by mortgage to procure and record an io7 Hetzel v. Barber, 69 N. Y. 1, 9; McKnight v. Gordon, 13 Rich. Eq. 222. los Stewart v. Smith, 36 Minn. 82, 30 N. W. 430; Roane v. Baker, 120 111. 308, 11 N. E. 246; Curtis v. Root, 20 111. 54; Bradley v. Bryan, 43 N. J. Eq. 396, 13 Atl. 806. 109 see post, 158. no Adams, Eq. p. 148; 2 Pom. Eq. Jur. § 686. "1 Wells v. Neff, 14 Or. 66, 14 Pac. 84, 88, IMS OF EQUITY. L^h- *> niu.-nt of the mortgage is such aegligence as will postpone his lien i" that of a junior mortgagee, who loaned his money on the faith of the release of the prior mortgage by the mortgagee, though the release was do! authorized by the assignee, and though the mort- e embezzled the money paid to procure it. 112 Mere carelessness, however, will not defeat the rights of the holder of the prior legal estate as against one having subsequent equities. The legal owner has a righl to say: "I am the legal owner, and I have yel to learn thai a legal estate can be defeated by mere care- 118 Thus, if has been held that the legal owner, whose title is on record, will not be postponed merely because he remained silent while another dealt with the property as his own. 114 But positive fraud or even gross carelessness will postpone the legal owner. 115 For example, he cannot assert his title, though duly recorded, against one who expended money on the faith of his denial of title, either by acts or declarations. 116 67. One taking with notice of an equity takes subject to that equity. 117 The meaning of this rule is that if one acquiring property has, when he pays the purchase money, notice of a prior equity binding the owner in respect of that property, he shall be assumed to have contracted for that only which the owner could honestly transfer, viz. his interest, subject to the equity as it existed at the date of notice. 118 The following are some of the more important applica- tions of the rule: The purchaser of property from a trustee, with notice of the trust, is himself a trustee for the same purposes; 119 the 112 Livermore v. Maxwell (Iowa) 55 N. W. 37. "a Onderh. Eq. p. 165. ii* Clabaugb v. Byerly, 7 Gill, 354; Groundie v. Northampton Water Co., 7 239; Knouff v. Thompson, 16 Pa. St. 361, 363; Hill v. Epley, 31 Pa. 1 : Neal v. Gregory, 19 Fla. 356. us Northern Counties of Eng. P. Ins. Co. v. Whipp, 26 Ch. Div. 482. no Evans v. Forstall, 58 Miss. 30. i" Adams, Eq. p. 148; 2 Pom. Eq. Jur. § 6S8. «8 Adams, Eq. p. 151; Gamble v. Hamilton (Fla.) 12 South. 229; McCone v. Courser, 64 N. H. 306, 15 Atl. 129; Otis v. Payne, 86 Tenn. 663, 8 S. W. 848; ■ v. Sanborn, 60 Mich. 346. 27 N. W. 527. no Burgess v. Wheate, 1 Eden, 177, 195; Pindall v. Trevor, 30 Ark. 249; Ch. 5] PRIORITIES. 103 purchaser of property which the vendor has already contracted to sell, with notice of such prior contract, is bound to convey to the claimant under it; 120 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, though it does not at law run with the land. 121 The questions as to what constitutes notice, when it must be given, etc., have already been discussed. 122 Our next inquiry will be as to the priority of rights of assignees and purchasers having equal equities. SAME— EQUAL EQUITIES. 68. A court of equity will not assist the holder of an equitable estate as against one who has an equal equita- ble claim on or interest in the subject-matter, and -who, in addition, has acquired the legal title. This proposition rests on the maxim, "When the equities are equal, the law shall prevail." No relief will be given against a de- fendant who, in these circumstances, has acquired the legal title without notice of plaintiff's equity. This proposition may be thus illustrated: The owner of land contracts to sell it to A., who pays part or all of the purchase money before the estate is legally con- veyed to him. The owner then sells the estate to B., who has no notice of the transaction with A. B. pays his purchase money, and Storrs v. Wallace, 61 Mich. 437, 28 N. W. 662; Rabb v. Flenniken, 29 S. C. 278, 7 S. E. 597. 120 Merry v. Abney, 1 Cas. Ch. 38; Potter v. Sanders, 6 Hare, 1; Greaves v. Tofield, 14 Ch. Div. 563, 57 1; Veith v. McMurtry, 26 Neb. 341, 42 N. W. 6. 121 Tulk v. Moxhay, 11 Beav. 571; 2 Phil. Ch. 774, 777; Parker v. Nightin- gale, 6 Allen, 341, 344; Whitney v. Union Railway Co., 11 Gray, 359, 368; Barrow v. Richard, 8 Paige, 351; Trustees of Village of Watertown v. Co wen, 4 Paige, 510; Trustees of Columbia College v. Lynch, 70 N. Y. 440, 449-452; Willoughby v. Lawrence, 116 111. 11, 4 N. E. 356; Gilmer v. Mobile & M. Ry. Co., 79 Ala. 569; De Gray v. Monmouth Beach Clubhouse Co. (N. J. Ch.) 24 Atl. 388; Hodge v. Sloan, 107 N. Y. 244, 17 N. E. 335. But a covenant which affects use of land merely in a collateral way will not be enforced in eq- uity against an assignee with notice. Kettle River R. Co. v. Eastern Ry. of Minn., 41 Minn. 461, 43 N. W. 469; Norcross v. James, 140 Mass. 188, 2 N. E. 946. 122 Ante, 80 et seq. DOCTRINES OK EQUITY. [^». 5 a deed to him is executed and recorded. If, then, A. comes into equity to enforce against the estate the lien to which, as a purchaser, equity would onder other circumstances have held him entitled, the relief will be refused to him. It will be held that B. has as good a right in conscience to the full enjoyment of his estate as A. has to security for Ins prematurely paid purchase money. Equity will therefore refuse to interfere with the advantage he derives from his Legal position. 1 " Another illustration is to be found where one pur- chases 1 1 nsl property for value without notice of the trust. The pur- chaser who has parted with value on the faith of an apparently ab- Bolute title in the trustee has an equal equity with the cestuis que trustent; and, since the deed from the trustee vests him with the Legal title, equity will give no assistance to the beneficiaries as against him. 124 The rule above stated in the black-letter text not only applies to where the purchaser has secured the legal title contemporane- ously with his equitable estate, but also to cases where he afterwards acquired the legal title; and this, notwithstanding that, in the in- terval between his purchase and his acquiring the legal title, he may have had notice of the prior transaction with plaintiff. 125 A rather frequent application of the rule is to cases where plain- liff has a mere equity as distinguished from an equitable estate; for example, a right to rescission of a deed or mortgage for the fraud of the grantee or mortgagee, or a right to reformation for a mistake- in the instrument. It is uniformly held that this relief will be denied as against one who has purchased the legal title from the grantee or mortgagee for value, and without notice of plaintiff's equities. 126 So, «a Smith, Pr. Eq. p. 319. mwarnock v. Harlow, 96 Cal. 298, 31 Pac. 166. Purchaser from trustee without notice of constructive or resulting trust will be protected against beneficiaries. Gray v. Coan, 40 Iowa, 327; Wilson v. Western N. C. Land Co., 77 N. C. 445. So, also, where a defective mortgage is executed by a trus- tee, and is not placed on record, a subsequent conveyance of the legal title to the cestui que trust for value and without notice will be protected. Fox v. Palmer, 25 N. J. Eq. 416. 3mith, Pr. Eq. p. 320. The principal illustration of this branch of the rule is the English doctrine of tacking, heretofore explained. See ante, 35. Applications of this branch of the doctrine are very rare wtth us. i« Reformation of deed or mortgage for mistake denied as against subse- Ch. 5] PRIORITIES. 105 also, a conveyance void as against the grantor's creditors for fraud will not be set aside at their suit as against a bona fide purchaser for value from the grantee. 127 69. Where the equities are otherwise in every respect equal, and there is no legal estate or interest in either claimant, he whose equity first accrued will take prece- dence. This proposition is merely an amplification of the maxim, "Where the equities are equal, the first in order of time shall prevail." In England its chief application has been to cases of equitable mort- gage created by the deposit of title deeds. Though this form of mort- gage is unknown to us, our own courts apply the doctrine whenever the facts warrant them in so doing. For example, as between two assignees of the same mortgage, the first in order of time is en- titled to the money due thereon, though the second assignee took without notice of the first, and each gave notice of his assignment to the mortgagor. 128 So, also, as between a mortgagee whose mort- gage has been discharged of record, solely through the unauthorized act of another, and a purchaser who buys the land in the belief, induced by the cancellation, that the mortgage is satisfied and dis charged, the equities are balanced, and the rights, in the order of quent bona fide purchasers. Lough v. Michael, 37 W. Va. 679, 17 S. E. 181, 470; Mayor of City of Macon v. Dasher, 90 Ga. 195, 16 S. E. 75; Toll v. Daven- port, 74 Mich. 386, 42 N. W. 63; Knobloch v. Mueller, 123 111. 554, 17 N. E. 696; Garrison v. Crowell, 67 Tex. 626, 4 S. W. 69; Whitman v. Weston, 30 Me. 285. Rescission denied as against bona fide purchaser. Town of Cherry Creek v. Becker, 123 N. Y. 161, 25 N. E. 369 (municipal bonds); Dettra v. Kestner, 147 Pa. St. 566, 23 Atl. 889; Zoeller v. Riley, 100 N. Y. 108, 2 N. E. 388; Rowley v. Bigelow, 12 Pick. 307; Halverson v. Brown, 75 Iowa, 702, 38 N. W. 123; Hewlett v. Pilcher, 85 Cal. 542, 24 Pac. 781; Dickerson v. Evans, 84 111. 451. 127 Holmes v. Gardner, 50 Ohio St. 167, 33 N. E. 644; Sawyer v. Almand, 89 Ga. 314, 15 S. E. 315; Blackshire v. Pettit, 35 W. Va. 547, 14 S. E. 133; Fletcher v. Peck, 6 Cranch, 87, 133, 134; Rowley v. Bigelow, 12 Pick. 307; Ledyard v. Butler, 9 Paige, 132; Anderson v. Roberts, 18 Johns. 515; Hood v. Fahnestock, 8 Watts, 489; Price v. Junkin, 4 Watts, 85; Sydnor v. Roberts, 13 Tex. 598. 128 Muir v. Schenck, 3 HiU, 228. lUii RLNES OF EQUITY. [Ch. 5 time, must prevail. The lieu of the mortgage must remain, despite the apparent discharge. 129 70. Where the equities are equal, and plaintiff, who has also the legal title, invokes the assistance of a court of equity, the defense of bona fide purchaser for value with- out notice will not prevail. 130 ( >n this ground, it has been held that it is no defense to a bill by a widow for dower, which is the legal estate, that defendant pur- chased from her husband for value, without any notice that he was married. 131 It w T as formerly held, however, that when plaintiff, hav- ing the legal estate, resorted to the auxiliary jurisdiction of the chancery court for discovery to perfect his interest, no assistance would be given him as against a purchaser for value without no- tice; 132 but since the enactment of the judicature act in England, fus- ing law and equity, it has been held that the plea of purchase for value without notice is no longer any defense to making discovery of defendant's title deeds. 183 Owing to our recording acts, it is diffi- cult to conceive how the question could arise with us. Beyder v. Excelsior Building Loan Ass'n, 42 N. J. Eq. 403, 408, 8 AtL 310. 130 pom. Eq. Jur. 7G5; Smith, Pr. Eq. p. 322. i3i Williams v. Lambe, 3 Brown, Ch. Cas. 264. 132 Basset v. Nosworthy, 2 White & T. Lead Cas. Eq. 1. 133 ind v. Emmerson, 12 App. Cas. 300. Ch. 6] PENALTIES AND FORFEITURES. 107 CHAPTER VI. DOCTRINES OF EQUITY (Continued)— PENALTIES AND FORFEITURES. 71. Penalties and Forfeitures. 72. Penalty or Liquidated Damages. 73. Statutory Penalties. 74. Enforcing Forfeiture. PENALTIES AND FORFEITURES. 71. Whenever a penalty or forfeiture is inserted in a contract merely to secure the performance of some act or the enjoyment of some right or benefit, the performance of such act or the enjoyment of such right or benefit is the substantial and principal intent of the instrument, and the penalty or forfeiture is only accessory, and therefore in- tended only to secure the damage actually incurred; and hence equity ■will relieve against the penalty or forfeiture, and decree compensation, -whenever such compensation can effectually be made. This doctrine rests, as we have seen, on the maxim that equity looks at the substance of a transaction, rather than its form. 1 In its earlier history, equity would relieve against a penalty only when in- tended to secure the payment of a sum of money; 2 but Lord Thurlow extended the doctrine to penalties intended to secure the perform- ance of some collateral act or the enjoyment of some right or bene- fit ; 3 and the common-law courts ultimately adopted the same view.* The chief question in modern cases has always been whether a sum fixed in an agreement as payable in default of compliance with its primary terms is to be taken as a penalty against which the courts will grant relief, or as liquidated damages which the courts will enforce. This difficulty has arisen from a conflict between the equi- i Ante, 23. 2 Peachy v. Duke of Somerset, 2 White & T. Lead. Cas. Eq. 2014. s Sloman v. Walter, 2 White & T. Lead. Cas. Eq. 2022. 4 Kemble v. Farren, 6 Bing. 141; Astley v. Weldon, 2 Bos. & P. 346. DOCTRINES OF EQUITY. [Ch. G table principle that relief will be given against hard, unconscientious, and oppressive agreements, and the acknowledged rights of persons imt under disability and dealing with each other at arms' length to make their own contracts, which the courts are bound to enforce as writ tin.' 1 While the courts generally profess that the primary object is to ascertain the intent of the parties, 6 they have also held thai the use of the words "penalty" or of "liquidated damages" is not conclusive of that intent; 7 and the principle which seems in fact to have largely controlled their decision on this question is that the parties will not, by express agreements, be permitted to set aside the rule of law which limits recovery for injuries sustained to just compensation. 8 PENALTY OR LIQUIDATED DAMAGES. 72. To determine -whether a sum of money stipulated to be paid on breach of condition in a contract is to be treated as "liquidated damages" which plaintiff is entitled to re- cover irrespective of the loss sustained, or as a " penalty," limiting his recovery to the amount of his actual loss, not, however, exceeding the penalty, the following rules have been established: (a) Where a sum of money is stated to be payable, either by way of liquidated damages or by way of penalty, for breach of stipulations, all or some of which are, or one of which is, for the pay- ment of a sum of money of less amount, the sum stipulated to be paid is treated as a penalty, and only the actual damages can be recovered. 9 • Wallls v. Smith, 21 Ch. Div. 243; Little v. Banks, 85 N. Y. 258, 266; Dwinel v. Brown, 54 Me. 468. o Little v. Banks, 85 N. Y. 258, 266; Bagley v. Peddie, 16 N. Y. 469. 7 Hardee v. Howard, 33 Ga. 533; Duffy v. Shockey, 11 Ind. 70; Keeble v. Keeble, 85 Ala. 552, 5 South. 149; Brennan v. Clark, 29 Neb. 3S5, 45 N. W. 472. s Myer v. Hart, 40 Mich. 517, 523; Jaquith v. Hudson, 5 Mich. 123, 136, 137. e Wallis v. Smith, 21 Ch. Div. 243; Barton v. Capewell Cont. Pat. Co. (Q. B. Div. 1S93) 08 Law T. (N. S.) 857; Clement v. Cash, 21 N. Y. 253, 260. Ch. 6] PENALTY OR LIQUIDATED DAMAGES. 109 It is a principle of universal application that, where a payment of a smaller sum is secured by a larger, the larger sum will be regarded as a penalty, the enforcement of which will be relieved against. 1 * The above rule is but an extension of the principle, since the court will not sever the stipulations. 11 (b) Where a lump sum is made payable by way of compensation on the occurrence of one or all of several events, some of 'which may occasion serious and others but trifling damage, the pre- sumption is that the parties intended the sum to be penal, and subject to modification. 12 As a corollary of this rule, it may be stated that, where a con- tract makes no distinction between the amount to be forfeited on a total failure to perform and only a partial failure, the amount will be regarded as a penalty, and not as liquidated damages. 13 (c) Where there is only one event on which the money is to become payable, and there is no adequate means of ascertaining the precise damages which may result from breach of the contract, it is per- lOAstley v Weldon, 2 Bos. & P. 350, 354; Turnan v. Hemman, 16 111. 400. As an application of this principle, it has been held that if a certain rate of interest is reserved by contract, with an agreement that, if it be not paid punctually, the rate shall be increased, the larger interest is in the nature of a penalty, and may be relieved against in equity. Mason v. Callender, 2 Minn. 350 (Gil. 302). But, if the larger rate be originally reserved with an agreement for reduction on punctual payment, the condition for such punctual payment is part of the contract, and relief cannot be given if it is not fulfilled. Nicholls v. Maynard, 3 Atk. 519; Carler v. Corley, 23 Ala. 612; Adams, Eq. 108, 109. ii Whitfield v. Levy, 35 N. J. Law, 149; Shiell v. McNitt, 9 Paige, 101, 106; In re Newman, 4 Ch. Div. 724. 12 Lord Elphinstone v. Monkland Iron & Coal Co., 11 App. Cas. 332; Kemble v. Fan-en, 6 Bing. 141; Condon v. Kemper, 47 Kan. 126, 27 Pac. 829; Wil- helm v. Eaves, 21 Or. li>4, 27 Pac. 1053; Basye v. Ambrose, 28 Mo. 39. is Jemmison v. Gray, 29 Iowa, 537; Lee v. Overstreet, 44 Ga. 507; Ha- maker v. Schroers, 49 Mo. 406; Curry v. Larer, 7 Pa. St. 470; Lyman v. Babcock. 40 Wis. 503. HO DOCTRINES OF EQUITY. [Ch. 6 fectly competent for the parties to fix a given amount as liquidated damages in order to avoid the difficulty." The applications of this rule are numerous. Thus, a stipulation to pay a specified sum on breach of covenant not to engage in a cer- tain business will in general be treated as providing for liquidated damages; 18 so, also, with a stipulation to forfeit a certain sum per day for failure to complete a structure at a specified time; 19 and with a covenan! against breach of contract for services; 17 and with ivenant not to reveal trade secrets. 18 (d) Where a contract contains several stipulations of varying importance, none of which are of a tri- fling nature, and the damages for breach of each stipulation are unascertainable or not readily ascertainable, the sum stipulated to be paid 'will be treated as liquidated damages. 19 The foregoing rules do not, of course, exhaust the various forms which the parties to a contract may adopt. Thus, it has been held h Sainter v. Ferguson, 7 C. B. 730; Sparrow v. Paris, 8 Jur. (N. S.) 391; Rolfe v. Peterson, 2 Brown, Pari. Cas. (Tomlins' Ed.) 436. « Kelso v. Reid, 145 Pa. St. 606, 23 Atl. 323; Cushing v. Drew, 97 Mass. 445; Green v. Price, 13 Mees. & W. 695; Dakin v. Williams, 17 Wend. 452. is Monmouth Park Ass'n v. Wallis Iron Works, 55 N. J. Law, 132, 26 Atl. 140; Malone v. Philadelphia, 147 Pa. St. 416, 23 Atl. 628; O'Brien v. Annis- ton Pipe Works, 93 Atl. 582, 9 South. 415; De Graff, Vrieling & Co. v. Wick- ham (Iowa) 52 N. W. 503; Lincoln v. Little Rock Granite Co., (Ark.) 19 S. W. 1056. it Tennessee Manuf'g Co. v. .Tames, 91 Tenn. 154, 18 S. W. 262; Keeble v. Kiel ile, 85 Ala. 552, 5 South. 149. See, however, Richardson v. Woehler, 26 Mich. 90. is Bagley v. Peddie, 16 N. Y. 469; Tode v. Gross, 127 N. Y. 480, 28 N. E. 469. Agreement by a tenant to forfeit $50 per day liquidated damages for holding over after his term will not be treated as a penalty, when the rental value of tho premises is $7,000 per annum. Poppers v. Meager (111. Sup.) 35 N. B. 805. • Wallis v. Smith, 21 Ch. Div. 260; Cotheal v. Talmage, 'J X. Y. 551; Clem- ent v. Cash, _'l N. Y. 253, 259. Ch. 6] STATUTORY PENALTIES. Ill that where separate payments are stipulated for breach of each of the several conditions in a contract, and are made proportionate to the extent to which the contractors may fail to fulfill their obliga- tions, and they are to bear interest from the date of their failure, payments so adjusted with reference to the actual damages are liquidated damages. 20 It has also been held that, where the ex- pressions are doubtful, the court will lean in favor of the construc- tion which treats the sum as a penalty. 21 STATUTORY PENALTIES. 73. The jurisdiction to relieve against penalties and for- feitures does not extend to those imposed by statute. 22 The reason is that statutory enactments are as binding on courts of equity as on those of law. The distinction between penalties and forfeitures imposed by contract and those imposed by law has always been observed. "You can never say that the law determined hardly, but you may say that the party has made a hard bargain," said Lord Macclesfield in the leading case on this subject. 23 It has even been held that a statutory penalty will be enforced by a court of equity, if the case is properly before it. 24 20 Lord Elphinstone v. Monkland Iron & Coal Co., 11 App. Cas. 332. In this case it was said (page 346): "The parties to any contract may fix the dam- ages to result from a breach at a sum estimated, as liquidated damages, or they may enforce the performance of the stipulation of the agreement by a a penalty. In the first instance, plaintiff is entitled to recover the estimated sum as stipulated damages, irrespective of the loss sustained. In the other the penalty is to recover all the damages actually sustained; but it does not estimate them, and the amount of loss, not, however, exceeding the penalty, is to be ascertained in the ordinary way." aiDavies v. Penton, 6 Barn. & C. 216; Keeble v. Keeble, 85 Ala. 552, 5 South. 149. 22 Clark v. Barnard, 108 U. S. 436, 457, 2 Sup. Ct. 878, and cases cited; State v. McBride, 76 Ala. 51; Keating v. Sparrow, 1 Ball & B. 373. 23 Peachy v. Duke of Somerset, 2 White & T. Lead. Cas. Eq. 2014. 24 State v. Hall, 70 Miss. 678, 13 South. 39. Contra, Broadnax v. Baker, 94 N. C. 675. H2 DOCTRINKS OF EQUITY. [Ch. 6 ENFORCING FORFEITURE. 74. Equity will not lend its active aid to enforce a for- feiture. 25 This rule rests on the maxims that he who comes into equity must do equity, and must come with clean hands. Equity will therefore withhold its aid from one insisting on the harsh remedy of forfeiture for condition broken, since equitably he is entitled only to just compensation for his injury, and he will be remitted to his legal remedies. 2 ' as Douglas v. Union Mut. Life Ins. Co., 127 111. 101, 20 N. E. 51; Craig v. Hukill, 37 W. Ya. 520, 16 S. E. 363; Birmingham v. Lesan, 77 Me. 494, 1 Ail. 151; Mills v. Evansville Seminary, 52 Wis. 669, 9 N. W. 925; McCormick v. Hossi, 70 Cal. 474, 15 Pac. 35; Livingston v. Tompkins, 4 Johns. Ch. 415, 431; Meigs' Appeal, 62 Pa. St. 28, 35. 26 Oil Creek R. Co. v. Atlantic & G. W. R. R. 57 Pa. St 65; 1 fom. Eq. Jur. § 459. Ch. 7] GROUNDS FOR EQUITABLE RELIEF. 113 CHAPTER VII. GROUNDS FOR EQUITABLE RELIEF. 75. Accident. 76. When Relief will be Granted. 77. Mistake. 78. Classification. 79. Mistake of Law. 80. Mistake of Fact. 81. Fundamental Mistake. 82. Unilateral Mistake as to Subject-Matter. 83. Mistake of Expression. 84. Fraud. 85. Classification. 88. Actual Fraud. 87. Wrongful Acts or Misrepresentations. 88. Wrongful Omissions. 89. Rights and Duties of Defrauded Party. 90. Inequitable or Unconscientious Transactions— Presumption of Fraud from Nature of Transaction. 91. Fraud Presumed from Position or Condition of Parties. 92. Contracts with Persons under Mental Disability or Duress. 93. Contracts between Persons in Fiduciary Relations. 94. Gifts between Persons in Fiduciary Relations. 95. Frauds on Third Persons. 96. Composition with Creditors. 97. Fraudulent Conveyances. 98. Essential Elements of Fraudulent Conveyance* 99. The Creditor. 100. Intent to Defraud. 101. Transfer of Property. 102. Frauds on Marital Rights. 103. Frauds on Powers. ACCIDENT. 75. Accident, in the sense in which it is used in courts of equity, may be denned as an unforeseen and injurious event, occurring' external to the parties affected by it, and not attributable to their mistake, neglect, or misconduct. 1 i Smith, Man. Eq. Jur. p. 36^ "Accident is an unforeseen and unexpected event, occurring external to the party affected by it, and of which his own eq.jur.— 8 114 GROUNDS FOR EQUITABLE BELIEF. [Ch. 7 dent relates to facta wholly externa] to the parties, and re- ,me evenl which occurs after the transact ion in question bas taken place, introducing Bome modification in the remedy which won]. I otherwise be available, or giving rise to some particular claim for relief The jurisdiction of equity to grant relief in certain cases of accident is of rery ancient date, having been exercised by the aiastical chancellors of England and by their successors after- wards. 1 In the earlier history of equity, when its jurisprudence was Dot very clearly defined, relief was given in many cases when it would now be refused. 8 SAME— WHEN RELIEF WILL BE GRANTED. 76. In modern times the right to relief, on the ground of accident, is determined by two considerations: (a) The party seeking relief must show a conscien- tious title thereto. (b) Courts of law must have been unable to originally grant suitable relief. bums Title to Relief. < hie who has been guilty of gross negligence or other miscon- < I in i in the transaction cannot successfully appeal to equity for re- lief on the ground of accident. 4 So, also, if both parties stand on an agency is not the proximate cause, whereby, contrary to his own intention and wish, he loses some legal right or becomes subjected to some legal liabil- ity, and another person acquires a corresponding legal right, which it would be a violation of trood conscience for the latter person, in the circumstances, to retain." 2 Pom. Eq. Jur. § 823. ly equity would grant relief against penalties and forfeitures only wliiu accident in allowing thr day of payment to pass by, or some other cir- cumsl hardship, induced the equity judge to mitigate the literal rigor of the contract. The same was true in cases of mortgage, redemption after default being originally permitted only when the default was accidental or fraud of the mortgagee. 1 Spence, Eq. p. G02. ii action for relief from a penalty incurred for failure to repair a bank within the time agreed was sustained, on the gi'ound that plain- tiff had been prevented from executing his contract by reason of unexpected luction to Calendars of Chancery, vol. 1, p. 142. • Bl ! w&j, 6 Yes. 812. Ch. 7] ACCIDENT. 115 equal footing in equity, there will be no interference with their legal rights, under the maxim that, when the equities are equal, the law prevails. Thus, accident preventing the execution of a will, or causing it to be improperly executed, is no ground for relief against the heir. 5 And, generally, against a bona fide purchaser for value without notice, equity will not interfere on the ground of accident. 6 On similar grounds, equity will not relieve against accident in mat- ter of positive contract, where the possibility of accident may fairly be considered to have been within the contemplation of the contract- ing parties. Thus, independent of statute, a lessee will not be re- lieved from his covenant to pay rent or to repair because of the ac- cidental destruction of the premises. 1 Inadequate Remedy at Law. We have already seen that the enlargement of legal remedies does not divest courts of equity of any part of their ancient jurisdiction; and the question on this branch of the subject is therefore whether there has always been an adequate remedy at law. 8 Now, courts of law have always recognized the plea of "vis major" or the "act of God." These terms are not, indeed, understood in a wide sense; but only as including "events which, as between the parties, and for the purposes of the matter in hand, cannot be definitely foreseen or controlled." Thus, when the performance of a contract depends on the existence of a specific thing, and, by the accidental destruc- tion of that thing, performance becomes impossible, the contract is no longer enforceable at law. 10 The law implies a condition that the contract shall cease if a thing necessary to its performance per- ishes without default of the contractor. For similar reasons, a con- s Whitton v. Russell, 1 Atk. 448. e Maiden v. Menill, 2 Atk. 8. See, also, ante, 104. 7 Bullock v. Domraitt, 6 Term R. 650; Jfym v. Blackburn, 3 Ves. 34, 38; Fowler v. Bott, G Mass. 63; Hallett v. Wylie, 3 Johns. 44. So, also, one who has contracted to raise and deliver a specific quantity of seeds will not be relieved from his contract because of the accidental destruction of his crop. Anderson v. May, 50 Minn. 280, 52 N. W. 530. s Ante, 11. » Pol. Cont. (4th Ed.) 567. io Taylor v. Caldwell, 3 Best & S. 826; Howell v. Coupland, L. R. 9 Q. E 462. H6 GROUNDS FOR EQUITABLE RELIEF. [Ch. 7 trail for personal services is deemed to be conditioned upon the eon- tinuance ol the life and health of the contracting party. 11 Turning now i<» the consideration of cases when accident is a ground for equitable relief, the first and perhaps most important class is that of lost instruments. In the case of lost bonds and sealed in- struments, not «uily did the courts of law originally refuse to dispense with proferl ami oyer of the bond, but equity alone had the power of imposing just conditions on plaintiff by requiring from him a suita- ble bond of indemnity. 18 So, also, equity has jurisdiction to grant relief in the case of lost negotiable instruments and other simple contracts, on the ground that it alone could originally protect de- fendant by requiring a bond of indemnity. 13 Another class of cases affording ground for equitable relief is where a person in a fiduciary capacity has paid money in reliance on the sufficiency of the trust estate, and it has subsequently, with- out his fault, been stolen and destroyed. Instances of this kind are supplied by cases in which the goods of the testator have been Btolen without any negligence on the part of his executor, 1 * or have 1,. en destroyed or damaged by fire or otherwise, 15 and also by cases in which an executor has reckoned as an asset a debt which he sup- posed to be still due, but which proves in fact to have been paid to testator. 18 A third class of cases in which equity will afford relief is against judgments at law, where a defendant has been prevented from availing himself of a good defense on the merits by accident, unmixed with negligence or fraud on his part." ii Fan-ow v. Wilson, L. R. 4 C. P. 744. 12 Ex parte Greenway, 6 Ves. 812; Patton v. Campbell, 70 111. 72; Bohart v. ( hamberlain, 99 Mo. 022, 13 S. W. 83; Griffin v. Fries, 23 Fla, 173, 2 South. jti'i; Livingston v. Livingston, 4 Johns. Ch. 294. Lost mortgage, Lawrence v. Lawrence, lu X. H. 109. is Lost negotiable instruments, Hansard v. Robinson, 7 Barn. & C. 90; Sa- vannah Nat Bank v.-Haskins, 101 Mass. 370; City of Bloomington v. Smith, I-'.: I ml. 41, 23 N. E. 972; Force v. City of Elizabeth, 27 N J. Eq. 408. Other simple contracts, Macartney v. Graham, 2 Sim. 2S5; Hardeman v. Battersby, i. 36. 38. i' Junes v. Lewis, 2 Yes. Sr. 240. is Clough v. Bond, 3 Mylne & C. 490, 496. is Pooley v. Lay. 1 1'. Wins. 355. it Herbert v. Herbert, 49 N. J. Eq. 70, 22 Atl. 789; Buchanan v. Griggs,. Ch. 7] MISTAKE. 117 Again, whenever a penalty or a forfeiture has been incurred through accident, unmixed with negligence or fraud, equity will afford relief, 18 even though it would not be warranted in so doing under the principles heretofore discussed relating to penalties and forfeitures. 19 MISTAKE. 77. Mistake, in its legal sense, exists when a person acting on some erroneous mental conception or convic- tion, either of law or of fact, executes some instrument or does some act which but for that erroneous conception or conviction he would not have executed or done. 20 Mistake indicates a mental condition of one or both of the par- ties concerned, and has reference to a state of things existing when the contract or other transaction in question takes place. In these respects it differs from accident, which, as we have seen, refers to some event which occurs subsequent to the transaction, and relates to facts wholly external to the parties. 21 The indefiniteness characteristic of the earlier equity jurisprudence was long retained in that branch which dealt with relief on the ground of mistake. Except in cases for specific performance, the effect of mistake on a contract, unaccompanied by fraud or misrep- 18 Neb. 121, 24 N. W. 452; New York & H. R. Co. v. Haws, 56 N. Y. 175; Holland v. Trotter, 22 Grat. 136; Darling v. Mayor, etc., of Baltimore, 51 Md. 1; Barber v. Rukeyser, 39 Wis. 590. Statutes in many states give a right to a new trial in this class of cases, and the equitable remedy is to some extent disused. See, also, post, 294. is Bostwick v. Stiles, 35 Conn. 195; Wheeler v. Connecticut Mut. Life Ins. Co., 82 N. Y. 543, 550; Kopper v. Dyer, 59 Vt. 477, 9 Atl. 4; Palmer v. Ford, 70 111. 369; Hill v. Barclay, 18 Yes. 56, 58, 62; Jones v. Lewis, 2 A'es. Sr. 240. is Ante, 107 et seq. 20 Haynes, Eq. p. 80. Prof. Pomeroy's definition is as follows: Mistake "is an erroneous mental condition, conception, or conviction, induced by ig- norance, misapprehension, or misunderstanding of the truth, but without negligence, and resulting in some act or omission done or suffered erroneously by one or both the parties to a transaction, but without its erroneous charac- ter being intended or known at the time." 2i Smith, Prin. Eq. p. 217. 118 GROUNDS FOR EQUITABLE RELIEF. [Ch. 7 resentation, came chiefly before courts of law. 22 The earlier theory of equity sr, ms t.» have been that mistake, whether of fact or of law, ground for relief in all eases. 23 Such, however, is no longer the law. It is an almost universal rule that a man is bound by an agreement to which he has expressed his assent in unequivocal terms, uninfluenced by falsehood, violence, or oppression. If he has exhibited all the outward signs of agreement, the law will hold that he has agreed. As a rule, a person cannot avoid his contract by simply showing that lie has made a mistake. 24 There are excep- tions to this rule, even at law. and still more in equity; and the ques- tion when mistake is ground for relief in equity will now be dis- cussed. SAME— CLASSIFICATION OF MISTAKE. 78. Mistake may be classified as either: (a) Of law, or (b) Of fact. SAME— MISTAKE OF LAW. 79. Equity -will not grant relief merely on the ground that there has been a mistake of law, but there must be some other additional fact which is sufficient to call forth the remedial power of equity. The maxim "Ignorance of law is no excuse" is applied as well in courts of equity as in courts of law. The ground was long ago stated by Lord Ellenborough: "Every man must be taken to be cognizant of the law; otherwise there is no saying to what extent 22 Pol. Cont. (5th Ed.) p. 444. 23 Francis, in bis treatise on Equity, written in 1737, says (page 10): "An- other impediment of assent is ignorance and error, whether in fact or in law; and, if the mistake is discovered before any step is taken towards perform- ance, it is just that he should have liberty to retract, at least upon satisfying the other of the damage that he has sustained in losing his bargain. But if the contract is cither wholly or in part performed, and no compensation can be given him, then it is absolutely binding, notwithstanding the error. Yet this is not to be understood when there proves to be an error in the thing or subject for which he bargained." 2* Anson, Cont p. 122; Pol. Cont. (4th Ed.) p. 392. Ch. 7] MISTAKE. 119 the ignorance might not be carried. It would be urged in almost every case." 25 However, the presumption that every one knows the law does not extend to the laws of foreign countries or states/ 6 or to private statutes, 27 and hence mistakes as to them are treated as mistakes of fact. The cases in which the rule itself has been applied are very numerous. 28 Thus, it is settled that, when money has been voluntarily paid under a mistake of law, a court of equity will not order its repayment; 29 and it has even been held that the reversal or modification, by subsequent decisions, of the law on which the parties acted, is no ground for equitable relief. 30 When Relief will be Granted in Equity. It is doubtful whether any exceptions really exist to the general principle that equity will not relieve against a mistake of law ; and it is believed that relief, whenever given, may be grounded, not on the mere fact that there was a mistake of law, but on some other fact, which is, independent of that, efficacious to call forth the reme- dial power of equity. 31 Thus, where the mistake of law is occasioned 25 Bilbie v. Lumley, 2 East, 469, where it was held that money paid with knowledge of all the facts, but in ignorance of the parties' legal rights, could not be recovered back. ze Leslie v. Baillie, 2 Young & C. Ch. 91; McCormick v. Garnett, 5 De Gex, M. & G. 278; Haven v. Foster, 9 Pick. Ill; Morgan v. Bell, 3 Wash. 576, 28 Pac. 925. 27 Earl of Pomfret v. Lord Windsor, 2 Ves. Sr. 472, 480. 28 Hunt v. Rousmanier, 8 Wheat 174; Kenyon v. Welty, 20 Cai. 637; State v. Pa up, 13 Ark. 129; Stoddard v. Hart, 23 N. Y. 556; Peters v. Florence, 38 Pa. St. 194; Allen v. Galloway, 30 Fed. 466; De Give v. Healey, 60 Ga. 391; Ottenheimer v. Cook, 10 Heisk. (Tenn.) 309; Bledsoe v. Nixon, 68 N. C. 521; Williamson v. Hitner, 79 Ind. 233; Stewart v. Stewart, 6 Clarke & F. 911, 966; Powell v. Smith, L. R. 14 Eq. 85. 29 Rogers v. Ingham, 3 Ch. Div. 351, 356, 357; Railroad Co. v. Soutter, 13 Wall. 517, 524; Haven v. Foster, 9 Pick. 112; Storrs v. Barker, 6 Johns. Ch. 166; Beard v. Beard, 25 W. Va. 486; Erkens v. Nicolin, 39 Minn. 461, 40 N. W. 567. An exception exists, however, where money has been paid under a mistake of law, to an officer of the court,— as a receiver or trustee in bank- ruptcy,— based on the consideration that the court should set an example of honesty higher than it would be justified in enforcing on litigants before it Ex parte James, 9 Ch. App. 609; Ex parte Simmonds, 16 Q. B. Div. 308; Dixon v. Brown. 32 Ch. Div. 597. so Jacobs v. Morange, 47 N. Y. 57; Baker v. Pool, 56 Ala. 14; Kenyon v. Welty, 20 Cal. 637; Lyon v. Richmond, 2 Johns. Ch. 60. si Smith, Prin. Eq. p. 200; Snell's Eq. p. 525. 120 GROUNDS 10R EQUITABLE RELIEF. [Ch. 7 by fraud, imposition, or misrepresentation, a party suffering thereby may haw relief in equity. 88 There need not even be actual fraud, l.ii t it is sufficient if one of the parties, availing himself of the op- portunities afforded by the mistake, will take an unconscionable advantage of thcother; 88 but here, as before, the true ground of k lief is do1 i he mistake of law, but the fraud which is implied. Bo, also, a contract entered into under a mistake of law by both parties will not be enforced in equity when the effect of the mistake is Buch as to make the contract something entirely different from what they intended. In such a case there is indeed no contract at all, the mutual agreement being different in substance from that winch legally springs from their acts. The question here is not whether a mistake of law will avoid a contract, but whether there ever was a contract. 84 The case is quite analogous where an agree- ii!' nt which has been made is erroneously expressed through a mis- take of law. Here, again, to refuse relief against the erroneous ex- asion would be to hold the parties to an agreement which they never made. 86 Another class of cases, closely approaching these, is where an act, performed in ignorance of a legal right, has been re- versed on the ground of mere surprise. 36 But, where a contract is written as the parties intended it to be, the mere fact that they misconceived the legal effect of the words employed is no ground for equitable relief. 37 bs Willan v. Willan, 16 Ves. 72; Bales v. Hunt, 77 Ind. 355; Kyle v. Fehley 81 Wis. 67, 51 N. W. 257; Moreland v. Atchison, 19 Tex. 303. 33 Benson v. Markoe, 37 Minn. 30, 33 N. W. 38; Jordan v. Stevens, 51 Me. 78; Champlin v. Laytin, 18 Wend. 407, 422; Green v. Morris & E. It. Co., 12 N. J. Eq. 165; Tyson v. Passmore, 2 Pa. St 122; Insurance Co. v. Raden. 87 Ala. 311, 5 South. 876; Snell v. Insurance Co., 98 U. S. 85, 90, 92; Allen v. Elder, 76 Ga. 674; Kornegay v. Everett, 99 N. C. 30, 5 S. E. 418. «< Pol. Cont. (4th Ed.) 412. ss Hunt v. Rousmanier, 8 Wheat. 174; Pitcher v. Hennessey, 48 N. Y. 415; Canedy v. Marcy, 13 Gray, 375, 377; Stone v. Hale, 17 Ala. 557; Lant's Appeal, 95 Pa. St 279; Whitmore v. Hay (Wis.) 55 N. W. 708; Evants v. le, 11 Ohio, 480. See, also, post, 127. se Pusey v. Desbouvrie, 3 P. Wms. 315, 321; Cochrane v. Willis. 1 Ch. App. 58: Tyson v. Tyson, 31 Md. 134; Jones v. Munroe, 32 Ga. 181; Harney v. Charles, 45 Mo. 157. 37 Powell v. Smith, L. R. 14 Eq. 85, 90; Hunt v. Rousmanier, 8 Wheat. 174, 1; Fowler v. Black, 136 HI. 363, 26 N. E. 596; Caldwell v. Depew, 40 Minn. 528, 42 N. W. 479; Kelly v. Turner, 74 Ala. 513. Ch. 7] MISTAKE. 121 Again, a transaction entered into by a party under a mistake as to his own antecedent or existing private legal rights or liabilities will be treated in equity as really a mistake of fact, rather than of law. 38 However, the foregoing rule has no application, where the parties, without fraud or imposition, have entered into a compromise for the express purpose of settling some doubtful private legal rights; 39 and especially is this the case where the compromise is of the nature of a family arrangement. 40 38 2 Pom. Eq. Jur. § 849. The meaning of this proposition is well illustrated by the language of Jessel, M. R., in Eaglesfield* v. Marquis of Londonderry, 4 Ch. Div. 693, 702, 703: "A misrepresentation of law is this: When you state the facts, and state a conclusion of law, so as to distinguish between the facts and the law, the man who knows the facts is taken to know the law. But when you state that as a fact which no doubt involves, as most facts do, a conclusion of law, that is still a statement of fact, and not a statement of law. Suppose a man is asked by his tradesman whether he can give credit to a lady, and the answer is: 'You may. She is a single woman, of large fortune.' It turns out that the man who gave that answer knew that the lady had gone through the ceremony of marriage with a man who was believed to be a mar- ried man, and that she had been advised that the marriage ceremony was null and void, though it had not been declared so by any court, and it after- wards turned out that they were all mistaken,— that the first marriage of the man was void, so that the lady was married. He does not tell the tradesman all these facts, but states that she is single. That is a statement of fact. If he had told him the whole story and all the facts, and said, 'Now, you see the lady is single,' that would have been a misrepresentation of law. But the single fact he states— that the lady is unmarried— is a statement of fact, neither more nor less; and it is not the less a statement of fact that, in order to ai-rive at it, you must know more or less of the law." See, also, Cooper v. Phibbs, L. R. 2 H. L. 149; Broughton v. Hutt, 3 De Gex & J. 501, 504; Blake- man v. Blakeman, 39 Conn. 320; Gerdine v. Menage, 41 Minn. 417, 43 N. W. 91; Lovell v. Wall, 31 Fla. 73, 12 South. G59; Morgan ?. Bell, 3 Wash. 57G, 28 Pac. 925. 39 Pickering v. Pickering, 2 Beav. 56; Naylor v. Winch, 1 Sim. & S. 5G4; Miles v. New Zealand Alford Estate Co., 32 Ch. Div. 266; Gormly v. Gormly, 130 Pa. St. 467, 18 Atl. 727; Hall v. Wheeler, 37 Minn. 522, 35 N. W. 377; Bell v. Lawrence, 51 Ala. 160; Dailey v. King, 79 Mich. 568, 44 N. W. 959; Allen v. Galloway, 30 Fed. 466. 40 in Westby v. Westby, 2 Dru. & War. 505, Lord St. Leonards said: "Wher- ever doubts and disputes have arisen with regard to the rights of different members of the same family, and fair compromises have been entered into, to preserve the harmony and affection, or to save the honor of the family, then 122 GROUNDS FOB EQUITABLE RELIEF. [Cll. 7 SAME— MISTAKE OF FACT. 80. Mistake of fact may be: (a) Fundamental, in which case it prevents any- real contract from being formed between the parties. (b) Unilateral as to subject-matter. (c) Of expression. In the discussion of this subject it should be borne in mind that the general rule is that mere mistake does not render a transaction void or voidable; and that the cases in which relief is granted, though very numerous, are really exceptions to the general rule. 41 In addition to the classes above mentioned, there is another in which application is made to a special and discretionary jurisdiction of equity, in the exercise of which courts of equity are particularly care- ful that their decrees shall not be productive of hardship. This .lass consists almost wholly of suits for specific performance, and will be discussed under that head. 42 SAME— FUNDAMENTAL MISTAKE OF FACT. 81. A fundamental mistake, which prevents any real contract from being- formed between the parties, is ground for relief both at law and in equity. Contract requires consensual agreement; and if, owing to some error on one or both sides, the parties never had a common intention, it follows that no contract is formed. Errors of this kind preveut a contract from being binding both at law and in equity. In the dis- cussion of the subject, however, illustrations will chiefly be taken from cases which have usually fallen under the special notice of equity. arrangements have been sustained by this court; albeit, perhaps, resting on grounds which would not have been considered satisfactory if the transaction had occurred between mere strangers." « See ante, 118. '- See post, 270. Ch. 7] MISTAKE. 123 Mistake as to Nature of Transaction. There may be a fundamental mistake as to the nature of the transaction itself; but this must needs be of rare occurrence, for men are not apt to enter into engagements of the nature of which they are ignorant. A case like this must arise almost of necessity from the misrepresentation of a third person; for, if it proceeds from the other party to the contract, the ground for avoidance would be mis- representation or fraud, and not mistake. On the other hand, if there is no misrepresentation, the contract cannot be avoided on the ground that one of the parties failed to apply his mind to its contents, or that he did not suppose it would have any legal effect, 43 Mistake as to Person with Whom Contract is Made. Where it is of the very essence of the intention of one of the con- tracting parties to deal with another particular person, a mistake as to the person will invalidate the agreement. 44 Thus, a note executed under the belief that the maker owes the payee, when in fact the debt is owing to another person of the same name, will be can- celed in equity. 45 This rule does not, however, apply where the personality of the parties is quite immaterial, such as a sale of goods for ready money. It should be observed that mistakes under this head are almost necessarily unilateral. Mutual Mistake as to Subject- Matter. Where the subject-matter in contemplation of the parties does not in fact exist at the time of the agreement, and the mistake is common to both parties, the agreement is void. 48 On this principle, a contract for the sale of shares in a corporation is void if, at the time of the agreement, a winding-up petition has been presented, of which neither the vendor nor the purchaser knew. 47 So, also, where both the beneficiary of a life insurance policy and the company are ig- 43 Hunter v. Walters, 7 Ch. App. 81; Foster v. Mackinnon, L. R. 4 C. P. 704, 711; Kennedy v. Green, 3 Mylne & K. 699, 718. A bin or sale cannot be avoided because the party supposed she was signing a note, where there was no fraud or misrepresentation of the other party. Gage v. Phillips, 21 Nev. 150, 26 Pac. 60. See, also, Cannon v. Lindsey, 85 Ala. 198, 3 South. 676. 44 Boulton v. Jones, 2 Hurl. & N. 564; Boston Ice Co. v. Potter, 123 Mass. 28. 45 Fitzmaurice v. Mosier, 116 Ind. 363, 16 N. E. 175, and 19 N. E. 180. 4« Couturier v. Hastie, 5 H. L. Cas. 675; Allen v. Hammond, 11 Pet 65. 47 Emmerson's Case, 1 Ch. App. 433. 1 _' J tUNDS Voll EQUITABLE RELIEF. [Ch. 7 noranl of the death of the insured when the policy is surrendered, an d a paid-up policy for a Bmaller amount is issued in its place, equity will reinstate the beneficiary to his rights in the surrendered policy. 4 " Similarly, a Bale of land entered into by both parlies under the belief thai the vendor's ancestor, through whom he derives title, is dead, will be set aside where it afterwards appears that the jtor is in fact alive. 49 If, in such cases, the mistake is con- fined to one of the parties, the agreement is prima facie valid; but it will usually be found that there is some ingredient of fraud involved which will make ii voidable at the option of the mistaken party. Again, a mistake as to the nature or fundamental qualities of the subject-matter, so that it goes to the whole substance of the agree- ment, and renders the subject-matter contracted for essentially differenl in kind from the thing as it actually exists, may avoid the contract Thus, equity will set aside a sale of land entered into by both parties under the belief that it is underlaid with coal, 50 or covered with standing pine, 51 where it appears that the land has no value whatever for mining or lumbering. So, also, a belief by both parties to a deed that the land conveyed includes land on which a building is located, which was the main inducement to the purchase, is ground for rescission. 52 In the foregoing class of cases the agree- <8 Riegel v. American Life Ins. Co., 153 Pa. St. 134, 25 Atl. 1070. *» Fleetwood v. Brown (Ind. Sup.) 9 N. E. 352. So, also, a contract for the sale of a life interest after it has in fact, though without the knowledge of the parties, expired, is void. Cochrane v. Willis, 1 Ch. App. 58; Strickland v. Turner, 7 Exch. 208. so Fritzler v. Robinson, 70 Iowa, 500, 31 N. W. 61. (si Thwing v. Lumber Co., 40 Minn. 1S4, 41 N. W. 815. rth v. Deuel, 11 Colo. 494, 19 Pac. 471. Further illustrations: A mu- tual mistake as to the quantity of land conveyed is ground for rescission, where the deGciency materially affects the value. Newton v. Tolles (N. H.) 19 Atl. 1092. Equity will set aside a contract for the sale of the vendor's entire interest in land when both parties believed such interest to be an undi- vided one-fifth, and in fact it was an undivided three-fifths. Cleghorn v. /aim wait, 83 Cal. 1. ")."», 'S.>, Pac. 294. A belief that a county seat has been legally removed is such a mistake of fact as will authorize a rescission of a deed of land to the county, to be used for a courthouse site, when it is afterwards judicially declared that the proceedings for the removal were illegal, and that no removal has in fact taken place. Griffith v. Sebastian Co., 49 Ark. 24, 3 S. w. 886. The sale of a blooded cow for a small sum, under the mutual belief Ch. 7] MISTAKE. 125 ment is void only if the error is mutual. 53 If only one of the parties is mistaken, it depends on circumstances now to be considered whether or not the agreement is voidable at his option. SAME—UNILATERAL MISTAKE AS TO SUBJECT-MATTER. 82. The circumstance that one of the parties has entered into an agreement under the influence of a mistake of fact as to the subject-matter has no legal effect, 51 unless (a) The fact is material to the transaction; or, in other words, is essential to its character. (b) The mistake is not due to the negligence of the mistaken party. (c) The fact is one -which the party who has knowl- edge of it is under an obligation to disclose. Fact Material to Transaction. A fact may be said to be material when the formation of the con- tract is conditional on its existence. The mistake must go to the essence of the object in view, and not be merely incidental. 55 It has accordingly been held that the mere fact that a purchaser of mineral land supposes an abandoned shaft to be located on the land is no ground for rescission in equity, when it does not appear that this mis- take induced him to purchase. 56 Nor does the circumstance that one of the parties is mistaken as to a material fact entitle him to equi- table relief in every instance. The mistake, as we shall hereafter see, must not be due to his own negligence. 57 So, also, if parties that she is barren, is void, when it afterwards turns out that she was not bar- ren at the time of the sale, and therefore worth a large sum for breeding pur- poses. Sherwood v. Walker, 66 Mich. 568, 33 N. W. 919. See, also, Chapman v. Cole, 12 Gray, 141. 5s Smith v. Hughes, L. R. 6 Q. B. 597. 64 White v. Richmond & D. R. Co., 110 N. C. 456, 461, 15 S. E. 197; Klein- sorge v. Rohse (Or.) 34 Pac. 874; Page v. Higgins, 150 Mass. 27, 22 N. E. 63; Hartford Fire Ins. Co. v. Haas (Ky.) 9 S. W. 720; Thomas v. Bartow, 48 N. Y. 193, 198. 55 Grymes v. Sanders, 93 U. S. 55, 60. 66 Grymes v. Sanders, 93 U. S. 55. 67 Post, 126. L26 GROUNDS FOR EQUITABLE RELIEF. [Ch. 7 si ami on an equal footing, and the means of knowledge are open to them both, either of (hem is entitled to the benefit of his own judg- oient, skill, and capacity. 58 The current of the modern cases, espe- cially the English, seems to be that a mistake of only one of the parties to a contract, respecting the subject-matter, though material, is qo ground for equitable relief, unless there is some fiduciary re- lation between the parties, to raise an independent equity. 59 A party who outers into a contract in good faith, without any knowledge of mistake on the part of the other, ought to be treated as a bona fide purchaser without notice, and so be unaffected by the possible "equity" arising in favor of the mistaken party. Negligence of Mistaken Party. Equity will never encourage negligence; and it accordingly will not grant any relief against a mistake of fact, however material, if it be such that complainant might have avoided it by reasonable diligence. 80 The mere fact, however, that he might possibly have ac- quired accurate knowledge is not sufficient to debar him from re- lief. 61 Obligation to Disclose Knowledge. This excludes facts the means of information as to which are open to both parties; and cases in which each party is presumed to ex- es Kerr. Fraud & M. 408. 68 See cases cited in note 54, supra. "Perhaps some of the cases on this sub- ject go too far; but for the most part the cases where a defendant has escaped on the ground of mistake, not contributed to by the plaintiff, have been cases when a hardship amounting to injustice would have been inflicted on him by holding him to his bargain, and It was unreasonable to hold him to it." Tam- plin v. James, 15 Ch. Div. 215. "The court of equity will grant relief where only the party complaining makes mistakes, when the facts and circumstances give rise to the presumption that there has been some undue influence, misap- prehension, imposition, mental imbecility, surprise, or confidence abused. Mere ignorance, mere inadequacy of consideration, mere weakness of mind, mere mistake, on the part of one party, will not entitle that party to relief. But it is otherwise when there is a combination of such things to prejudice the party." Bean v. Railroad Co., 107 N. C. 731, 747, 12 S. E. 600. so Grymes v. Sanders, 93 U. S. 55; Wier v. Johns (Colo. Sup.) 24 Pac. 262; Conner v. Welch, 51 Wis. 431, 8 N. W. 260; Duke of Beaufort v. Neeld, 12 Clark & F. 248, 286. • ■ W'illmott v. Barber, 15 Ch. Div. 'M, 100; Werner v. Itawson, 89 Ga. 620, 15 S. E. 813. Ch. 7] MISTAKE. 127 ercise his own skill and judgment, and there is no confidence re- posed; 62 and also facts which are in their nature doubtful, and as to the probabilities of which each may be supposed to calculate in his own discretion. 63 It is evident that this qualification almost, if not quite, amounts to the statement that a unilateral mistake is re- lieved against only when nondisclosure of the better informed party amounts to fraud. Relief will, however, be given if there be a duty to disclose. A party who is under a duty to disclose, and who, there is reason to believe, knows more about the subject-matter than the other party, will not be permitted by a court of equity to hold the latter to the agreement. 64 SAME— MISTAKE OF EXPRESSION. 83. Mistake of expression occurs "whenever an agree- ment or disposition is sought to be embodied in a formal instrument, and the instrument is so framed as not to ex- press clearly or truly the intention of the parties or party. Such mistake, if mutual, will be rectified in equity. This head of equity really rests on the maxim that equity regards substance rather than form. Whenever it clearly appears that a written instrument, drawn professedly to carry out the agreement of the parties previously entered into, is executed under the misap- prehension that it really embodies the agreement, whereas, by mistake of the draftsman, either as to fact or law, it fails to fulfill that pur- pose, equity will correct the mistake by reforming the instrument in accordance with the contract. 65 And in these cases it is entirely 62 Kerr, Fraud & M. pp. 408, 414. Where there is no such relation of trust or confidence between the parties as imposes on one an obligation to give full information to the other, the latter cannot proceed blindly, omitting all in- quiry and examination, and then complain that the other did not volunteer to give all the information he had. Dambmann v. Schulting, 75 N. Y. 55. 63 Bell v. Lawrence, 51 Ala. 160; Anthony v. Boyd, 15 R. I. 495, 8 Atl. 701, and 10 Atl. 657; Stover v. Mitchell, 45 111. 213; Mortimer v. Capper, 1 Browne, Ch. 158. 64 McHarry v. Irvin, 85 Ky. 322, 3 S. W. 374, and 4 S. W. S00; Epes v. Wil- liams' Adm'r (Va.) 17 S. E. 235; Cocking v. Pratt, 1 Ves. Sr. 400; Millar v. Craig, 6 Beav. 433. 65 Trusdell v. Lehman, 47 N. J. Eq_. 218, 20 Atl. 391; Keister v. Myers, 115 Ind. 312, 17 N. E. 161; Adams v. Wheeler, 122 Ind. 251, 23 N. E. 760; Knight 128 GROUNDS FOR EQUITABLE RELIEF. [Ch. 7 immaterial whether the mistake is one of law or of fact; equity will granl relief in either case. 66 But the mistake must be mutual. An agreement cannot be affected by the mistake of either party in expressing his intention, of which the other party has no knowl- edge. Tii ns, when one of the parties signs a contract which con- tain- ilit- whole agreement as he understands it, the other party can- nut asserl thai the true agreement was different in an important par- ticular, and demand a reformation accordingly. 68 The only qualifica- tion to the foregoing rule is this: Where a written contract does no1 1 1 -uly express the agreement of the parties, and one of the parties is ignorant of this fact, the other party who, with knowledge of the ignorance of the other, has kept silent when he should have spoken, is estopped to defeat a reformation by alleging that he knew that the instrument was different from the agreement. 69 Mistake Apparent on Face of Instrument. Both at law and in equity, rules for the interpretation of written instruments have been established from ancient times in order to eliminate mistakes of expression. Thus, clerical errors and omis- sions which could be certainly supplied from the context, and all mere grammatical mistakes, were remedied ; 70 the context of a doubtful expression might be referred to, to ascertain its meaning; 71 and the general intent was always regarded as prevailing over the pa rticular expression. 72 v. Glasscock, 51 Ark. 390. 11 S. W. 580; Andrews v. Andrews, 81 Me. 337, 17 Atl. 1GG. ea Park Bros. & Co. v. Blodgett & Clapp Co., 64 Conn. 28, 29 Atl. 133; Lee v. Percival, 85 Iowa. 639, 52 N. W. 543. See, also, ante, 120. 67 Kerr, Fraud & M. 409. Roemer v. Conlon, 45 N J. Eq. 234, 19 Atl. 664; Ellison v. Fox, 38 Minn. 454, 38 N. W. 358. 69 Roszell v. Roszed, 109 Ind. 354, 10 N. E. 114; Gray v. Supreme Lodge, etc., 118 Ind. 295, 297, 20 N. E. 833. to Doe d. Leach v. Mickleni, 6 East, 486; Redfern v. Bryning, 6 Ch. Div. 133; Salt v. Pym, 28 Ch. Div. 155; Monmouth Park Ass'n v. Wallis Iron Works, 55 N. J. Law, 132, 26 Atl. 140; Ketchum v. Spurlock, 34 W. Va. 597, 12 S. E 832. 7i Browning v. Wright, 2 Bos. & P. 15, 26; 2 Kent, Comm. *p. 555. 72 Ford v. Beech, 11 Q. B. 866. Ch. 7] MISTAKE. 129 Parol Evidence to Show Mistake. While it is a general rule, both, at law and in equity, that oral evi- dence is not admissible to vary a written instrument, yet it is also well settled that such evidence is admissible in equity to show that, either because of accident, mistake, or fraud, the instrument does not truly express the meaning of the parties; 73 and if accident or mis- take is clearly proved by such evidence, or is admitted by the other side, or is evident from the nature of the case, equity will rectify it. 74 Mistakes in Wills. In the earlier history of equity, the English court of chancery did not scruple to alter a will to make its wording conform to testator's presumed intention. If "there falleth out an unseen accident, which, if testator had foreseen, he would have altered his will, I shall con- sider it," Lord Nottingham declared. 75 Such, however, is no longer the law. In no case can oral evidence, or any evidence dehors the will, be admitted to vary or control the terms thereof, though oral evidence may be resorted to, to explain a latent ambiguity. It is only when a mistake is apparent on the face of the will itself that equity will interfere. 76 Other Instances Where Relief has been Given. In earlier times, the commonest cases in which equitable inter- ference for mistakes of expression was invoked related to the reforma- tion of marriage settlements. In these cases there was generally a discrepancy between the preliminary articles and the settlement as finally executed. 77 73 Murray v. Parker, 19 Beav. 305, 308; Greer v. Caldwell, 14 Ga. 215; Rog- ers v. Saunders, 16 Me. 92; Glass v. Hulbert, 102 Mass. 34; Patterson v. Bloomer, 35 Conn. 57; Walden v. Skinner, 101 U. S. 577, 5S3; Harding v. Long, 103 N. C. 1, 9 S. E. 445. 7* Davis v. Symonds, 1 Cox, 402, 404; Fowler v. Fowler, 4 De Gex & J. 250; Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45; Nevius v. Dunlap, 33 N. Y. 676; Marsh v. Marsh, 74 Ala. 418; Maxwell Land Grant Case. 121 U. S. 325, 7 Sup. Ct. 1015; Hutchinson v. Ainsworth, 73 Cal. 458, 15 Pac. 82. See. also, post, 314, "Reformation." 75 Winkfield v. Combe (1679) 2 Ch. Cas. 16. 76 Milner v. Milner, 1 Ves. Sr. 106; Thomson v. Thomson, 115 Mo. 56, 21 S. W. 1085; Bingel v. Volz, 142 111. 214, 81 N. E. 13. 77 Legg v. Gold wire, 1 White & T. Lead. Cas. Eq. 17. bq jur.— 9 GROUNDS FOB EQUITABLE BELIEF. [Ch. 7 of the most useful heads of the jurisdiction of equity in re- lieving againsl mistake and accident is in interfering in aid of the •imi of powers. The principles on which it proceeds in these have been thus expressed: "Whenever a man, having power over mi estate, whether ownership or not, in discharge of moral tural obligations, shows an intention to execute such power, nt will operate upon the conscience of the heir or other person benefited by the default to make him perfect this intention." 78 Another instance is found in relieving against mistakes in the set- tlement of accounts and the execution of releases. 79 One rule re- ;ig releases is that general words are always limited to the mat- ter or matters especially within the contemplation of the parties at the time when the release was given; 80 but where a release is gen- eral in its terms, and there is no limitation, by recital or otherwise, leasor may not prove an exception by parol. 81 FRAUD. 84. Fraud is deception or circumvention -which interferes •with the legal rights of another. 82 To give relief against all kinds of fraud had from the first been one of the objects of the high court of chancery, 83 and its power of 78 Chapman v. Gibson, 3 Brown, Ch. 229. " Millar v. Craig, 6 Beav. 433; Gandy v. Macaulay, 31 Ch. Div. 1; Stuart v. Sears, 110 Mass. 143; Russell v. Presbyterian Church, 65 Pa. St. 9. so London & S. W. R. Co. v. Blackmore, L. R. 4 H. L. 610, 625; Turner v. Turner, 14 Ch. Div. 829. si Kirchner v. New Home S. M. Co., 135 N. Y. 182, 31 N. E. 1104. lith, Prin. Eq. p. 153; M. M. Bigelow, in Law Quarterly Review, Octobei, 1887. "Fraud, in the contemplation of equity, may be said to include properly all acts, omissions, or concealment which involve a breach of equitable duty, trust, or confidence justly reposed, and are injurious to another; or by which an undue and unconscientious advantage is taken of another." 1 Fonbl. Eq. bk. 1. c. 11, § 5; 1 Story, Eq. Jur. § 187; Kerr, Fraud & M. p. 42; 2 Pom. Eq. Jur. § "-7.",. Lord Coke's time there was a doggerel rhyme in vogue, expressing the ; view on the subject: "Three things are judged in court of conscience: Covin, accident, and breach of confidence. " Haynes' Eq. p. 7i. Ch. 7] FRAUD. 131 searching the conscience of defendant and of decreeing a specific restitution of property, in place of mere damages ascertained by the rough assessment of a jury, gave to the relief it offered a peculiarly beneficial character. In addition to this, the term "fraud" is used in a more comprehensive sense in courts of equity than in courts of law. Equity will not only relieve against actual deception, but it will extend its interference to all cases of unfair dealing, and pre- vent the dishonest circumvention of one person by another. Courts of equity have always declined to hamper themselves with any definition which will indicate the various forms in which fraud may present itself. "Fraud is infinite; and were a court of equity once to lay down rules how far they would go, and no further, in extending their relief against it, or to define strictly the species or evidence of it, the jurisdiction would be cramped and perpetually eluded by new schemes which the fertility of man's invention would contrive." 84 Nevertheless, the meaning attached in equity to the term "fraud" is sufficiently indicated in the above black-letter definition. While fraud primarily imports falsehood or deception, the term, as used in equity, covers transactions in which there is no falsehood, either express or implied. For instance, equity will relieve against a con- veyance made with intent to defeat the grantor's creditors, or against an unconscionable bargain secured by taking undue advantage of the necessities of another. In neither of these cases does falsehood or de- ception operate on the mind of the injured party. He is merely tricked or circumvented out of his rights. It should also be borne in mind that courts of equity do not deal with merely abstract rights, and that, no matter how shocking to the moral sense a transaction may be, equity will not interfere unless there is an infringement of a right recognized by the municipal law. 85 The various classes of cases in which relief has been afforded against fraud will next be considered. s* Lord Hardwicke, quoted in Parkes' Hist Ch. p. 508; Mortlock v. Buller, 10 Ves. 292. 306. ss See ante, 1, 2. 182 GROUNDS FOR EQUITABLE BELIEF. £Cll 7 SAME— CLASSIFICATION OF FRAUD. 85. The different species of fraud may be classified as follows: (I) Actual fraud. (a) Arising from -wrongful acts. (b) Arising from wrongful omissions. (II) Inequitable and unconscientious transactions. (a) Fraud presumed from nature of the transac- tions. (b) Fraud presumed from position or condition of the parties. (1) Contracts with persons under duress, lunatics, imbeciles, etc. (2) Contracts between persons in fiduciary relations. (3) Gifts between parties in fiduciary rela- tions. (Ill) Frauds on rights of third persons. (a) Composition with creditors. (b) Fraudulent conveyances. (c) Frauds on marital rights. (d) Frauds on powers. In the leading case of Earl of Chesterfield v. Janssen, 86 Lord Hard- wicke classified the different species of fraud which will be relieved against in equity. His classification has been adopted by nearly all subsequent judges and text writers, and forms the basis for that giveo above. 87 It will be observed that the term "constructive fraud" 86 2 Yes. Sr. 125; 1 White & T. Lead. Cas. Eq. (4th Am. Ed.) 773. 8T Lord Hardwicke said: "This court has an undoubted jurisdiction to relieve against every species of fraud. First, then, fraud, which is dolus malus, may be actual, arising from facts and circumstances of imposition, which is the plainest case. Secondly, it may be appan nt from the intrinsic nature and sub- ject of the bargain itself, such as no man in his senses and not under delusion would make, on the one hand, and as no honest and fair man would accept, on the other, which are inequitable and unconscientious bargains. A third kind of fraud is that which may be presumed from the circumstances and condi- U. S. 247. S Sup. Ct. SSI. so Page v. Bent, 2 Mete. (Mass.) 371, 374; Southern Development Co. v. Silva, 125 U. S. 247, 8 Sup. Ct. SSI; Akin v. Kellogg, 119 N. Y. 441, 449, 23 N. E. Conant v. National State Bank, 121 Ind. 323, 22 N. E. 250; Holton v. Noble, S3 Cal. 7, 23 Pac. 58. oi Reeves v. Corning, 51 Fed. 774, 7S0. 02 Birmingham Warehouse & Elevator Co. v. Ely-ton Land Co., 93 Ala. 549, U South. 235; Adams v. Schiffer, 11 Colo. 15, 17 Pac. 21; Knowlton v. Keenan, Ch. 7] FRAUD. 135 monly resorted to by vendors, 03 including statements as to the value of property sold, 04 when not made as a positive affirmation of fact; 95 but a statement as to the actual cost of the property to the vendor is regarded as a representation of fact. 96 Knowledge of Falsity. The second rule is subject to some important qualifications. Since actual fraud involves positive dishonesty, it follows that the party making the misrepresentation must have (1) knowledge of its falsi- ty; 9T (2) or must make it recklessly without any knowledge or belief on the subject; ° 8 (3) or, believing his representation to be true, must be guilty of negligence, and thus ignorant of that which he would have known if he had rightly discharged his duty. 99 A man who makes a representation which he honestly and on reasonable grounds 146 Mass. 86, 15 N. E. 127; Gray v. Suspension Car Truck Manuf'g Co., 127 111. 187, 19 N. E. 874. Promise to make new invention is expression of opin- ion. Norfolk & N. B. Hosiery Co. v. Arnold, 49 N. J. Eq. 390, 23 Atl. 514. »3 Fenton y. Browne, 14 Ves. 144; Reynolds v. Palmer, 21 Fed. 433. »4 Ellis v. Andrews, 56 N. Y. 85; Byrne v. Stewart, 124 Pa. St. 450, 17 Atl. 19; Suessenguth v. Bingenheimer, 40 Wis. 370; Gordon v. Butler, 105 U. S. 553; Dillman v. Nadlehoffer, 119 111. 507, 7 N. E. SS; Rendell v. Scott, 70 Cal. 514, 11 Pac. 779. 95 Deliberate statement of value by a person having full knowledge, made in response to an inquiry for the guidance of the other party, and acted on in reliance on its good faith and honesty, is a representation of fact. Haygarth v. Wearing, L. R. 12 Eq. 320, 327, 32S; Jordan v. Volkenning, 72 N. Y. 300, 300; Morgan v. Dinges, 23 Neb. 271, 36 N. W. 544; Perkins v. Partridge, 30 N. J. Eq. 82. 96 Fairchild v. McMahon, 139 N. Y. 290, 34 N. E. 779; Sandford v. Handy, 23 Wend. 260; Van Epps v. Harrison, 5 Hill, 65. Contra, Cooper v. Lover- ing, 106 Mass. 77, 79; Tuck v. Downing, 76 111. 71; Holbrook v. Connor, 60 Me. 578. 97 Patch v. Ward, 3 Ch. App. 203, 207; Smith v. Richards, 13 Pet. 26, 36; Frenzel v. Miller, 37 Ind. 1. 98 Cooper v. Schlesinger, 111 U. S. 148 4 Sup. Ct. 360; Hexter v. Bast, 125 Pa. St. 52, 72, 17 Atl. 252; Bullitt v. Farrar, 42 Minn. 8, 43 N. W. 566; McKin- non v. Vollmar, 75 Wis. 82, 43 N. W. 800; Stimson v. Helps, 9 Colo. 35, 10 Pac. 290; Stone v. Denny, 4 Mete. (Mass.) 151; Marsh v. Falker, 40 N. Y. 502. 99 Hart v. Swaine, 7 Ch. Div. 42, 46; Rawlins v. Wickham, 3 De Gex & J. 304; Rorer Iron Co. v. Trout, 83 Va. 397, 2 S. E. 713; Converse v. Blumrich. 14 Mich. 109; Frenzel v. Miller, 37 Ind. 1; Chatham Furnace Co. v. Moffatt, 147 Mass. 403, 18 N. E. 168. 13(3 GROUNDS FOR 1 QUIT ABLE RELIEF. [C h. 7 believes to be true, or believes himself entitled to assert, is not, in- dependently of a duly cast on him to know the truth, bound in equity to make good what he has so represented, if it turns out to be un- true. 1 " 1 lew ever, such a misrepresentation, honestly made, may entitle the parties to relief on the ground of mistake, under the principles heretofore discussed. 101 Materiality of Misrepresentation and Reliance Thereon. A misrepresentation, to be material, must be one necessarily in- fluencing and inducing the transaction, and affecting and going to ii s wit essence and substance. 102 Misrepresentations extending only to some unimportant detail, or to something collateral to the con- tract, are not material. 103 And it follows from this rule that a mis- representation is of no effect unless it has in fact misled the com- plaining party. If he knows it to be false, and has not relied on it, it cannot have influenced his conduct 104 But no obligation rests on him to investigate or verify the representations, to the truth of which the other party to the contract, with full means of knowledge, has deliberately pledged his faith. 105 In a court of equity no man can complain that another has too implicitly relied on the truth of what he himself has stated. 106 However, one who has the means of knowledge, uses them, makes inquiries, and eventually relies on his own judgment, cannot afterwards complain of the misrepresentation, ioo Kerr, Fraud & M. p. 60; Merewether v. Shaw, 2 Cox, 124. ioi Ante, 122 et seq. See, also, Smith v. Bricker, 8G Iowa, 285, 53 N. W. 250. 102 Kerr, Fraud & M. p. 74; Cotton v. Stanford, 82 Cal. 351, 23 Pac. 16; Pow- ell v. Adams, 98 Mo. 598, 12 S. W. 295; Smith v. Kay, 7 H. L. Cas. 750, 755. 103 Percival v. Harger, 40 Iowa, 286; Winston v. Gwathney, 8 B. Mom 19. 104 Pennybacker v. Laidley, 33 W. Va. 624, 11 S. E. 39; Pearce v. Buell, 22 Or. 29, 29 Pac. 78; Nelson v. Stocker, 4 De Gex & J. 458. ioo Kramer v. Williamson, 135 Ind. 655, 35 N. E. 3S8; Mead v. Bunn, 32 N. V. 275; Erickson v. Fisher, 51 Minn. 300, 53 N. W. 638; Morehead v. Fades, 3 Bush, 121. io6 Redgrave v. Hurd, 20 Ch. Div. 1. In Sutton v. Morgan, 158 Pa. St. 204, 27 Atl. S94, it was said, speaking of the failure of purchasers of land to inves- tigate respecting misrepresentations made by the vendors: "They fell easily into the trap which was set with some skill and some effrontery for them; but their neglect or want of prudence cannot justify the falsehood or fraud of those who practice upon their credulity. The doctrine of contributory neg- ligence cannot be invoked by defendants to save them from liability for mis- leading their victims " Ch. 7] FRAUD. 137 nor claim that he did not learn the truth, and was in fact misled. 107 And, if a misrepresentation is capable of several interpretations, it is for the plaintiff to show on which he relied. The court will not as- sume that he has been deceived merely because the circumstances are such that he might well have been. 108 In addition to the foregoing elements, injury must result as the immediate, and not the remote, consequence of the misrepresenta- tion. 109 SAME— WRONGFUL OMISSIONS. 88. Mere silence will not amount to fraud, unless the fact suppressed is material, and is one -which the party- concealing it is under some legal or equitable duty to dis- close. At the outset, it should be borne in mind that the question now to be discussed relates only to passive, though wrongful, concealment, as distinguished from cases of "active concealment," where a person uses some contrivance to hide a defect in something offered for sale. These latter cases are really cases of wrongful acts, and fall within our first division of actual fraud. Indeed, a misrepresentation need not be made by language, spoken or written, but conduct calculated to convey a false impression is sufficient. 110 In cases of mere omis- sion or silence, as in cases of wrongful acts, the fact concealed must be material, and must be instrumental in bringing about the con- tract. The only point of difference between wrongful acts and omissions is, therefore, as to the obligation to make disclosure; and this question will be now considered. Where parties deal at arms' length, and there is no confidential or fiduciary relation between them, either of them may remain silent, and avail himself of his superior knowledge as to facts and circum- stances equally open to the observation of both, or equally within the 107 Colton v. Stanford, 82 Cal. 352, 23 Pac. 1G; Southern Development Co. v. Silva, 125 U. S. 247, 8 Sup. Ct. 881; Billings v. Aspen Mining & Smelting Co., 2 C. C. A. 252, 51 Fed. 338; Jennings v. Broughton, 5 De Gex, M. & G. 126; Dyer v. Hargrave, 10 Ves. 505. los Smith v. Chadwick, 9 App. Cas. 187. io9Holton v. Noble, 83 Cal. 7, 23 Pac. 58; Wells v. Waterhouse, 22 Me. 131; Branham v. Record, 42 Ind. 181; Barry v. Croskey, 2 Johns. & H. 1. no Lovell v. Hicks, 2 Young & C. Exch. 46; Denny v. Hancock, 6 Ch. App. 1. GROUNDS FOB EQUITABLE BELIEF. [CJl. 7 reach of their ordinary diligence, and is under no obligation, either at law or in equity, to draw the attention of the other to circuni- stances affecting the value of the property in question, though he may know him to be ignorant of them. 111 Thus, a purchaser of land is not required to communicate his knowledge of something which gives ii an exceptional value, such as a mineral deposit under it; 112 nor need the vendor communicate his information respecting defects rendering it less valuable than the purchaser supposes it to be. 113 But if a vendor conceals a material fact, as to which, from the nature nf the ease, confidence is reposed in him, the transaction may be set aside on the mere ground of his silence. 114 A distinction has also been made between patent and latent defects. A vendor is under no obligation to disclose a defect which is patent, or such as the buyer, having an opportunity to inspect, can discover by the exercise of ordinary vigilance; 1 " but he should disclose latent defects, or such as the buyer has no means, or not equal means, of ascertain- ing. 118 ids of a Fiduciary Nature. The foregoing rules are generally applicable, but certain contracts, from their very nature, are considered to be essentially fiduciary in in Dambmann v. Schulting, 75 N. Y. 55; (Ira ham v. Meyer, 99 N. Y. Gil, 1 N. E. 143; Pennybacker v. Laidley, 3.°. W. Ya. 624, 11 S. E. 39; Cleaveland v. Richardson, 132 I". S. 318, 329, 10 Sup. Ct. 100; Goninan v. Stephenson, 24 Wis. 75; Wilde v. Gibson, 1 II. L. Cas. 605. us Fox v. Mackreth, 2 Cox, 320, 2 Brown, Ch. 400, 420; Harris v. Tyson, 24 Pa. St. 347; Williams v. Spurr, 24 Mich. 335. Failure of a purchaser of oil lands to disclose the output of a well on adjoining land operated by himself is not such a fraud as entitles the vendor to rescission. Neill v. Shamburg, 15S Pa. St 2G3, 27 Atl. 992. us Haywood v. <',,),< . 25 Beav. 140; People's Bank v. Bogart, 81 N. Y. 101; Laidlaw v. Or.Lran, 2 Wheat. 178. A sale of land for an extravagant price will not be rescinded at the suit of the purchaser who invested his money on the faith of his belief in the power of a third person to locate mineral deposits, when the vendor did nothing to create or strengthen the false opinions on which the purchaser acted. I. aw v. Grant, 37 Wis. 548. i" Edwards v. McLeay, 2 Swanst. 287; Ellard v. Llandaff, 1 Ball & B. 241; Howard v. Gould, 28 Yt. 525; Brown v. Montgomery, 20 N. Y. 287. us Leake, Cout 361 ; Brown v. Gray, G Jones (N. C.) 103. no Turner v. Huggins, 14 Ark. 21; Lunn v. Shermer, 93 N. C. 164; George v. Taylor, 55 Tex. 'j7; Trout v. Roberts, '61 Ala. 427. Ch. 7] FRAUD. 139 their character, and full disclosure is required. Among these is the contract of insurance; and it is held that the intentional conceal- ment by the insured of a material fact vitiates the policy. 117 In the contract of suretyship, also, the duty of making disclosure is insisted on; 118 and likewise in family settlements. 119 SAME— RIGHTS AND DUTIES OF DEFRAUDED PARTY. 89. Fraud does not render a transaction void, but only- voidable. If the defrauded party elects to rescind, he must act promptly after discovering the fraud; and he cannot repudiate the transaction in part, and adopt it as far as it is beneficial. 120 Since fraud renders a transaction, not void, but only voidable, several courses are open to the defrauded party: (1) He may affirm the transaction, and sue at law to recover the damages sustained by reason of the fraud. 121 (2) He may absolutely rescind the transac- tion, and sue at law to recover the property he parted with. This action proceeds on the theory that the transaction has already been rescinded, and therefore, before plaintiff can maintain it, he must have returned or tendered all that he received by virtue of the transaction. 122 (3) He may sue in, equity for a rescission. This action does not proceed on the theory that plaintiff has already re- scinded, but it is for a rescission; and therefore it is sufficient for plaintiff to offer in his complaint to restore to defendant what he has H7 Green v. Merchants' Ins. Co., 10 Pick. (Mass.) 402; McLanahan v. Univer- sal Ins. Co., 1 Pet. 170, 185; Ionides v. Pender, L. R. 9 Q. B. 531, 537; Thom- son v. Weerns, 9 App. Cas. 671. us Wythes v. Labouchere, 5 De Gex & J. 595; Howe Mach. Co. v. Fairing- ton, 82 N. Y. 121. us Gordon v. Gordon, 3 Swanst 400, 475, 477; Pane v. Fane, L. R. 20 Eq. 698. 120 Oakes v. Turquand, L. R. 2 H. L. 345, 346; Lindsley v. Ferguson, 49 N. Y. 623; Negley v. Lindsay, 67 Pa. St. 217. 121 Krumm v. Beach, 96 N. Y. 39S, 406; Urquhart v. Macpherson, App. Cas. 831. 122 Gould v. Cayuga Co. Nat. Bank, 86 N. Y. 75; Vail v. Reynolds, 118 N. Y. 297, 302, 23 N. E. 301; Thayer v. Turner, 8 Mete. (Mass.) 550. MO GROUNDS FOR EQUITABLE RELIEF. [Ch. 7 received, and the rights of the parties can be fully regulated and protected by the judgment to be entered. 123 In all eases plaintiff must act with reasonable diligence after be- coming aware of the fraud; 1 " but the question as to what is reason- able diligence depends on the facts of each particular case. 125 How- ever, the duty to bring action arises only on discovery of the fraud; and hence the statute of limitations does not begin to run until the fraud is discovered, or might have beeu with the exercise of reason- able diligence. 128 Another result of the merely voidable nature of transactions taint- ed with fraud is that complainant will be given no relief unless he comes with clean hands. If complainant has himself participated in the scheme to defraud, and is in pari delicto with defendant, equity will not interfere in his favor, but will leave the parties where it finds them. 127 Since a fraudulent transaction is merely voidable, it also follows that rescission cannot be decreed as against a bona fide purchaser; he acquires a good title as against the defrauded party. 128 With this exception, however, "a court of equity will wrest property fraud- ulently acquired, not only from the perpetrator of the fraud, but, to use Lord Cottenham's language, from his children and his children's children, or, as elsewhere said, from any persons amongst whom he may have parceled out the fruits of his fraud." 128 INEQUITABLE OR UNCONSCIENTIOUS TRANSACTION?. This is necessarily a very wide and somewhat indeterminate class, which is scarcely susceptible of systematic analysis. A distinction 123 Gould v. Cayuga Co. Nat. Bank, 86 N. Y. 75; Thomas v. Beals (Mass.) 27 N. E. 1004; Nelson v. Carlson (Minn.) 55 N. W. S21. 124 Cainpau v. Van Dyke, 15 Mich. 371; Brown v. Brown (HI. Sup.) 32 N. E. 500; Richardson v. Walton, 49 Fed. 88S; Weaver v. Carpenter, 42 Iowa, 345; Akerly v. Vilas, 21 Wis. 88. i25Kilbourn v. Sunderland, 130 U. S. 505, 518, 9 Sup. Ct. 594. 126 Gibbs v. Guild, 9 Q. B. Div. 59; Dodge v. Essex Ins. Co., 12 Gray, G5; Brown v. Brown, 01 Tex. 45; Kirby v. Railroad Co., 120 U. S. 136, 137, 7 Sup. Ct. 430. 127 See ante, 40. 128 Oakcs v. Turquand, L. R. 2 H. L. 325. See, also, ante, — . 129 Vane v. Vane, 8 Ch. App. 385, 397, per James, L. J. Ch. 7] FRAUD. 141 may, however, be drawn between those cases in which the very na- ture of the transaction gives rise to a suspicion of fraud and those cases where a presumption of fraud arises from the peculiar circum- stances and relations of the parties. PRESUMPTION OF FRAUD FROM NATURE OF TRANSAC- TION. 90. Mere inadequacy of consideration, in the absence of other inequitable circumstances, is no ground for avoiding a transaction in equity, unless it is so gross as to shock the conscience, and amount to clear evidence of actual fraud. No principle is better settled than that mere inadequacy of price does not form a distinct ground of equitable relief. 130 Courts of equity, as well as of law, act on the ground that every person who is not, from his peculiar circumstances or condition, under disability, is entitled to dispose of his property in such manner and upon such terms as he may choose. There are cases, however, where there is no positive evidence of fraud, and yet the inequality of the bargain is so gross that the mind cannot resist the inference that it was im- properly obtained. To have this effect, however, "there must be an inequality so strong, gross, and manifest that it must be impossible to state it to a man of common sense without producing an exclama- tion at the inequality of it." 131 And, though the inadequacy is not of this shocking character, yet, if it is accompanied by circumstances of an inequitable nature, such as concealment, oppression, or undue influence, on the one hand, or old age, mental infirmity, or pecuniary embarrassment, on the other, a presumption of fraud is raised, war ranting equitable relief, unless the party claiming the benefit suc- ceeds in showing perfect good faith in the transaction. 132 130 parmelee v. Cameron, 41 N. Y. 392; Butler v. Haskell, 4 Dessaus. Eq. 651; Martinez v. Moll, 46 Fed. 724; Harris v. Tyson, 24 Pa. St. 347, 360; Col- lier v. Brown, 1 Cox, 428. 131 Lord Thurlow in Gwynne v. Heaton, 1 Brown, Ch. 8; Matthews v. Crock- ett's Adm'r, 82 Va, 394; Hamblin v. Bishop, 41 Fed. 74; Pennybacker v. Laid- ley, 33 W. Va. 624, 11 S. E. 39; Phillips v. Pullen, 45 N. J. Eq. 5, 830, 16 Atl. 9, and 18 Atl. 849. 132 Burke v. Taylor, 94 Ala. 530, 10 South. 129; Tracey v. Sacket, 1 Ohio St 54; Deane v. Rastron, 1 Anst. 64. 142 GROUNDS FOli EQUITABLE BELIEF. £Ch. 7 Catching Bargains. It remains to notice a peculiar class of cases, frequently arising in England, but rarely with us, known as catching bargains with heirs, doners, or expectants. Fraud was, in these cases, commonly presumed from inadequacy of consideration; 133 and such transac- tions were frequently set aside on this ground alone, without proof of any other ingredients of fraud, such as misrepresentation, undue influence, etc. 134 And the fact that the expectant was of a mature >■ well understood the nature and extent of the transaction, was immaterial. 188 From the fact of a person's selling such an interest the court presumed that he was under pecuniary pressure, and it was not incumbent on him to prove that it was so. The onus was on the purchaser to show that the transaction was just and reason- able. 136 Post obit bonds, or bonds conditioned for pajonent of a sum of money on the death of a person from whom the obligor has expectations, are, on similar principles, regarded with suspicion in equity, and, if of an unconscionable character, will be suffered to stand only as security for the actual sum lent thereon, with proper interest. 137 FRAUD PRESUMED FROM POSITION OR CONDITION" OF PARTIES. 91. To simplify matters, the cases -where fraud is pre- sumed from the position or condition of the parties may be further subdivided as follows: (a) Contracts -with persons under mental disability, or under duress. (b) Contracts between persons occupying a fiduciary relation. 133 Peacock v. Evans, 16 Ves. 512. 134 Curwyn v. Miller, 3 P. Wms. 293, note; Earl of Aylesford v. Morris, 8 Ch. App. 484. 135 Earl of Pertmore v. Taylor, 4 Sim. 182; Bromley v. Smith, 26 Beav. 644. 136 Gowland v. De Faria, 17 Ves. 20; Lord v. Jeffkins, 35 Beav. 7, 9. This matter is now regulated by statute in England. St. 31 Vict. c. 4, provides that "no purchase made bona fide, and without fraud or unfair dealing, of any reversionary interest in real or personal estate, shall hereafter be opened or set aside merely on ground of undervalue." 137 Curling v. Townshend, 1!) Ves. 62S; Benyon v. Fitch, 35 Beav. 570. Ch. 7] FRAUD. 143 (c) Gifts between persons occupying a fiduciary rela- tion. SAME— CONTRACTS WITH PERSONS UNDER MENTAL DIS- ABILITY OR DURESS. 92. The very foundation of contract is consent or agree- ment. There can be no true consent or agreement with- out a capacity to understand the terms of the agreement, and also freedom to accept or to refuse the terms pro-, posed. Therefore, if a person induces another, who lacks either this capacity or this freedom, to enter into an ap- parent contract, equity will not recognize the transaction, however it may be fenced by formal observances, but> deeming it fraudulent, will generally grant relief against it at the suit of the party imposed upon. 133 Insanity. On this ground the contracts of idiots, lunatics, and other persons non compos mentis are generally deemed invalid by courts of equity. The general rule in this country is that the contracts of a lunatic, made after the fact of insanity has been judicially ascertained, are absolutely void, until, by permission of the court, he is allowed to resume control of his property. 139 But contracts entered into by a person apparently sane, before the fact of insanity has been thus established, are at most only voidable, and will not be set aside, when the other party has no notice of the insanity, derives no inequitable advaDtage, and the parties cannot be placed in statu quo. 140 The reason for this distinction is plain. Insanity is one of the most mysterious diseases to which humanity is subject. The ripest pro- fessional skill and the keenest observation sometimes fail to detect it in its incipient stages. Sound law and good morals, therefore, "8 Smith, Prin. Eq. p. 167 139 Hughes v. Jones, 11G N. Y. G7, 22 N. E. 446; Rannells v. Gerner, SO Mo. 474; Copenrath v. Kienhy, S3 Ind. 18. 140 Manby v. Bewicke, 3 Kay & J. 342; Yauger v. Skinner, 14 N. J. Eq. 389; Gribben v. Maxwell, 34 Kan. 8, 7 Pac. 584; Schaps v. Lehner, 54 Minn. 208, 55 N. W. 911; Abbott v. Creal, 56 Iowa, 175, 9 N. W. 115; Scanlan v. Cobb, 85 I1L 296. The same rule applies to idiots. Buruham v. Kidwell, 113 111. 425. Ill GROUNDS FOB EQUITABLE RELIEF. [Ch. i alike forbid the rescission of a contract on the ground of insanity by one \\li<» is unable or unwilling to restore the property acquired i hereunder to the other party, who entered into it in good faith, in en- tin- ignorance of the insanity, and without taking any advantage by reason thereof. 141 Merited Weakness. The mere fact that a man is of weak understanding, or is in in- tellectnal capacity below the average of mankind, is not of itself an adequate ground to set aside the transaction. 142 But equity will interfere where weakness of intellect is coupled with other circum- stances, such as inadequacy of consideration, undue influence, or want of advice, showing that the other party has taken advantage of the weakness. 143 The burden of proving fairness of dealing with such people is on him who ventures on it; and, if he fails, any ad- vantage made thereout must be disgorged. 144 Drunkenness. To render a transaction voidable for drunkenness, it must have been such as to have drowned reason, memory, and judgment, and impaired the mental faculties to such an extent as to render the victim non compos mentis. 145 Drunkenness of this nature is open to the observation of every one; and one who deals with a person so intoxicated is necessarily guilty of inequitable conduct. In case of slighter intoxication, equity will refuse to interfere, either to en- force or rescind a contract, being equally unwilling to assist the one person who has immorally incapaciated himself and the other who has immorally taken advantage of the incapacity. 146 But, if 141 Lancaster Co. Nat. Bank v. Moore, 78 Pa. St. 407, 414. i« Ball v. Mannin, 3 Bligh (N. S.) 1; Harrison v, Guest, 6 De Gex, M. & G. 428, 8 II. L. Cas. 481; Thomas v. Sheppard, 2 McCord, Eq. 36; Burt v. Quisen- berry. 132 111. 385. 24 N. E. 622. i« Boyse v. Rossborough, 6 H. L. Cas. 2; Tracey v. Sacket, 1 Ohio St. 54; Williams v. Williams, 63 Md. 371; Kelly v. Smith, 73 Wis. 191, 41 N. W. 69; Allore v. Jewell, 94 U. S. 506. m Longmate v. Ledger, 2 Gift*. 157, 164; Cowee v. Cornell, 75 N. Y. 91, 99, 100; Highberger v. Stiffler, 21 Md. 338; Wilkinson v. Sherman, 45 N. J. Eq. 121, IS Atl. 228; Gates v. Cornett, 72 Mich. 420, 40 N. W. 740. i« Bates v. Ball, 72 111. 108; Loftus v. Maloney, 89 Va. 576, 16 S. E. 749; Crane v. Conklin, 1 N. J. Eq. 346. no Cook v. Clayworth, 18 Ves. 12; Johnson v. Medlicott, 3 P. Wms. 130. Ch. 7] FRAUD. 145 one person has designedly contrived to draw another into intoxica- tion for the purpose of imposing on him while in that state, equity will interfere to prevent the enjoyment of the advantage thus fraudu- lently conceived. 147 Duress and Undue Influence. In the foregoing cases the absence of capacity to understand the proposal was the chief ground of interference. The absence of free- dom to accept or reject the proposal is of like effect. Obligations entered into under duress have always been unenforceable at law; but equity goes much further, and interferes, wherever confidence is reposed and betrayed, to set aside the obligation or conveyance ob- tained by unfair advantage. To warrant equitable interference, how- ever, the undue influence must have been of such a nature as to de- prive the complainant of his free agency, and thus to render his act more the offspring of the will of another than of his own will. 148 SAME— CONTRACTS BETWEEN PERSONS IN FIDUCIARY RELATION. 93. Whenever two persons stand in such relation that, ■while it continues, confidence is necessarily reposed by- one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advan- note; Shackelton v. Sebree, 86 111. 616. Equity will not permit the rescission of a contract for intoxication by one unable to restore the property acquired thereunder, since to do so would permit "intoxicated people to acquire property, and build up fortunes for themselves, on drunken incapacity alone." Youn v. Lamont (Minn.) 57 N. W. 478, 4S0. "7 Cory v. Cory, 1 Ves. Sr. 19; Rottenburgh v. Fowl (N. J. Ch.) 26 Atl. 338; Dunn v. Amos. 14 Wis. 106. 148 Francis v. Wilkinson, 147 111. 370, 35 N. E. 150. Cases where transaction was avoided for undue influence: Evans v. Llewellin, 1 Cox, 333, 340; Syni v. Howe, L. R. 6 Eq. 55; Leighton v. Orr, 44 Iowa, 679; Aldridge v. Aldridge, 120 N. Y. 614, 24 N. E. 1022; Rau v. VonZedlitz, 132 Mass. 164; Haydock v. Haydock, 33 N. J. Eq. 494; Gay v. Witherspoon (Ky.) 16 S. W. 96; Todd v. Grove, 33 Md. 194. Cases where it was held that no undue influence existed: Hollocher v. Hollocher, 62 Mo. 267; Furlong v. Sanford, 87 Ya. 506, 12 S. E. 1048; Earle v. Norfolk & N. B. H. Co., 36 N. J. Eq. 188; Burt v. Quisenberry, 132 111. 385, 24 N. E. 622; Howe v. Howe, 99 Mass. 88. EQ.JUR. — 10 M6 GROUNDS FOR EQUITABLE RELIEF. [Ch. 7 tage at the expense of the confiding party, the person so availing himself of his position will not be permitted to retain the advantage, although the transaction could not have been impeached if no such confidential relations had existed. 1 * 8 In i he eases considered under the preceding subdivision, fraud was sought to be inferred by reason of the incapacity, total or partial, of one of the parties to the contract. In the cases now to be con- aidered, a suspicion of fraud arises from the special relation between the parties, such as trustee and cestui que trust, principal and agent, etc. It is a rule of equity that no man can be permitted to take a ben- efit when he has a duty to perform which is inconsistent with his acceptance of the benefit. 150 This rule is founded on considerations of public policy, since the condition of the parties would generally render it extremely difficult to obtain positive evidence of the fair- ness of transactions which are peculiarly open to fraud and undue influence. The policy of the rule is to shut the door against tempta- tion. 151 Trustee and Cestui Que Trust. A common application of the rule is to the case of actual trustees. Dealings by trustees with trust estates may be divided into two classes: (1) When the trustee contracts with himself, without the intervention of the cestui que trust; and (2) when he deals directly with the cestui que trust. 1. With respect to the first class of cases, there is no rule of equity more sacred than that a trustee cannot so execute a trust as to de- rive any benefit for himself. 152 It is accordingly firmly settled that a purchase of the trust estate by the trustee is void at the option i >f 1 lie cestui que trust, though the trustee may have given an ade- quate price and gained no advantage. 153 It is entirely immaterial i*9 Tate v. Williamson, 2 Ch. App. 55, 60, 61, per Lord Chelmsford. "o Kobinson v. Pett, 3 P. Wins. 249; Van Epps v. Van Epps, 9 Paige, 241. lei Heme v. Meeres, 1 Vera. 465. 152 Forbes v. Ross, 2 Cox, 116. Pox v. Mackreth, 2 Brown, Ch. 400, 1 White & T. Lead. Cas. Eq. 125; Dyer v. Shurtleff, 112 Mass. 105; Romaine v. Hendrickson, 27 N. J. Eq. 162; Ch. 7] FRAUD. 147 whether the sale be private or at public auction, 154 or under a judicial decree, 155 or whether the trustee purchases personally or through an agent, 156 or whether he purchases for himself or as agent for some third person. 157 In all these cases the rule is inflexible that the transaction is voidable at the option of the cestui que trust. The trustee cannot be both vendor and vendee. He cannot represent in himself two opposite and conflicting interests. 158 2. As to the second class of cases, dealings between trustee and cestui que trust respecting the trust estate are presumed to be in- valid. 159 But there is no imperative rule of law prohibiting such dealings. The transaction will be permitted to stand if the trustee can show that the beneficiary clearly understood with whom he was dealing, and made no objection to the transaction, and that the trustee fairly and honestly disclosed all he knew respecting the property, gave a just and fair price, and did not surreptitiously se- cure any advantage for himself. 160 Principal and Agent. Considerations of like nature apply to the case of persons standing in the relation of principal and agent. A person who is an agent Munson v. Syracuse, G. & C. R. Co., 103 N. Y. 58, 8 N. E. 355; Price v . Thomp- son, 84 Ky. 219, 1 S. W. 40S; Carrier v. Heather, 62 Mich. 441, 29 N. W. 3S; Scott v. Sierra Lumber Co., 67 Cal. 71, 7 Pac. 131; Cushman v. Bonfleld 139 111. 219, 28 N. E. 937. Purchase of trust property by trustee at public sale is only voidable, and will be ratified unless the beneficiary repudiates it within reasonable time. Hammond v. Hopkins, 143 U. S. 224, 12 Sup. Ct. 418; Scott v. Freeland, 7 Smedes & M. 409. 154 Ex parte Lacey, 6 Yes. 629; Ex parte James, 8 Ves. 348; Michoud v. Girod, 4 How. 503. 155 Cary v. Cary, 2 Schoales & L. 175; Feamster v. Peamster, 35 W. Va. 1, 13 S. E. 53; Carter v. Burr, 46 N. J. Eq. 134, IS Atl. 463; Tracy v. Colby, 55 Cal. 67; Tracy v. Craig, Id. 91; Powell v. Powell, 80 Ala. 11. 156 Campbell v. Walker, 5 Ves. 678; Ingle v. Richards, 28 Beav. 361; Hous- ton v. Bryan, 78 Ga. 181, 1 S. E. 252; Bassett v. Shoemaker, 46 N. J. Eq. 538, 20 Atl. 52. 157 Ex parte Bennett, 10 Ves. 381, 400; North Baltimore Bldg. Ass'n v. Caldwell, 25 Md. 420. 158 Wormley v. Worcnley, 8 Wheat 421. 159 Coles v. Trecothick, 9 Ves. 234; Spencer & Newbold's Appeal, 80 Pa. St. 317; Nichols v. McCarthy, 53 Conn. 299, 23 Atl. 93. 160 Barnard v. Stone, 159 Mass. 224, 34 N. E. 272; Williams v. Powell. 66 J 18 GROUNDS FOR EQUITABLE BELIEF. [Ch. 7 for another undertakes a duty in which there is a confidence re- posed, and which he is bound to execute to the utmost advantage of i In person who employs him. He cannot be allowed to place himself in a situation which, under ordinary circumstances, might tempt him nut to do that which is the best for his principal. 181 Principal and Agent. — Dealings without the Intervention of the Principal. It is therefore settled that an agent who is employed to sell cannot become the purchaser surreptitiously, and without the knowledge or consent of his employer; 102 nor can an agent employed to pm chase buy secretly from himself or for his own benefit. 188 All such t ransactions are voidable at the principal's option. Dealings betiveen Agent and Principal. There is no rule to prevent an agent from dealing with his prin- cipal as to the matter in which he is employed as agent. The pre- sumption, however, is against the validity of the transaction; and the agent, seeking to uphold it, must shoAV to the satisfaction of the court that he gave his principal the same advice in the matter as an independent and disinterested adviser would have done, and made a full disclosure of all he knew respecting the property, and that the principal knew with whom he was dealing, and made no objection to the transaction, and that the price was just and fair. 184 Ala. 20; Colton v. Stanford, 82 Cal. 351, 23 Pac. 16; Marshall v. Stephens, 8 Humph. 159; Coles v. Trecothick, 9 Ves. 234, 246. i6i East India Co. v. Henchman, 1 Ves. Jr. 2S9; Keighler v. Savage Manuf'g Co., 12 Md. 383; Neuendorff v. World Mut Life Ins. Co., 69 N. Y. 389; Wilber v. Lynde, 49 Cal. 290; Grumley v. Webb, 44 Mo. 444; Dutton v. Willner, 52 N. Y. 312. Ex parte Hughes, 6 Ves. 617; Lewis v. Hillman, 3 H. L. Cas. 607; Cope- land v. Mercantile Ins. Co., 6 Pick. (Mass.) 198; Adams v. Sayre, 70 Ala. 318; Fry v. Piatt, 32 Kan. 62, 3 Pac. 781; Colbert v. Shepherd (Va.) 16 S. E. 246; Euneau v. Rieger, 105 Mo. 659, 16 S. W. 854; MeClendon v. Bradford 42 La. 100, 7 South. 78, and 8 South. 256. 163 East India Co. v. Henchman, 1 Ves. Jr. 289; Tyrrell v. Bank of London, 10 H. L. Cas. 26; Conkcy v. Bond, 36 N. Y. 427; Tewksbury v. Spruance, 75 111. isT; Bischoffsheim v. Baltzer, 20 Fed. 890; Distrow v. Secor, 58 Conn. 35, 18 Atl. 981. is* Walsham v. Stainton, 1 De Gex, J. & S. 678; Keith v. Kellam, 35 Fed. 243; Le Gendre v. Byrnes, 44 N. J. Eq. 372, 14 Atl. 621; Kerby v. Kerby, 57 Md. 315; Rochester v. Levering, 104 Ind. 562, 4 N. E. 203; Cook v. Berlin Ch. 7] FRAUD. 149 Attorney and Client. The rules governing transactions between principal and agent apply with even greater strictness to those between attorney and client. The client is entitled to the full benefit of the best exer- tions of the attorney, and the highest degree of good faith is required of him in all dealings with his client. Even contracts for compensa- tion are closely scrutinized by the courts, and formerly in England an agreement to pay a gross sum for future services was voidable at the client's option. 165 Recent statutes have, however, modified this rule somewhat, 166 and it has been greatly relaxed with us. 167 Respecting contracts other than for compensation, the rale is that an attorney is under no incapacity to buy from or sell to his client. The burden, however, is on the attorney to establish affirm- atively that his transactions with his client were fair and just; that his client acted on full information of all the material circumstances; and that he did not take undue advantage of his client's com- plaisance, confidence, ignorance, or misconception. 168 Lord Eldon said, regarding the purchase of a client's property by his attorney: "The attorney must prove that his diligence to do the best for his Woolen Mills Co., 43 Wis. 433. "It is not enough for an agent to tell the prin- cipal that he is going to have an interest in the purchase, or to have a part in the purchase. He must tell him all the material facts. He must make a full disclosure." Jessel, M. R., in Dunne v. English, L. R. 18 Eq. 524. ic5 i n re Newman, 30 Beav. 196. lee 33 & 34 Vict. c. 28, § 4; 44 & 45 Vict. c. 44, § 8; In re Attorneys' & So- licitors' Act 1870, 1 Ch. Div. 573. 167 Special contract for compensation for future services is valid if the attor- ney shows that it is free from fraud, undue influence, or exorbitance. Planters' Bank v. Hornberger, 4 Cold. 531; Blaisdell v. Ahern, 144 Mass. 393, 11 N. E. 681; Ryan v. Ash ton, 42 Iowa, 365; Ballard v. Carr, 4S Cal. 74. In Elmore v. Johnson, 143 111. 513, 32 N. E. 413, it was, however, held that, where value of property depends on the result of litigation as to title, a contract made during its pendency to compensate the attorney with part of the property is voidable at the client's election, irrespective of the fairness or unfairness of the trans- action, provided such election is exercised within a reasonable time. 168 place v. Hay ward, 117 N. Y. 487, 497, 23 N. K 25; Dunn v. Dunn, 42 N. J. Eq. 431, 7 Atl. 842; Baker v. Humphrey, 101 U. S. 494; Dunn v. Record, 63 Me. 17; Merryman v. Euler, 59 Md. 5S8; Gresley v. Mousley, 4 De Gex & J. 78; Luddy's Trustee v. Peard, 33 Ch. Div. 500. 150 GROUNDS FOR KQUITABLE RELIEF. [Ch. 7 vendor has been as greal as il" he was only an attorney dealing for thai vendor with a stranger." 1C0 l[. m and Ward. The rule of equity with respect to dealings between guardian and ward is extremely strict; 170 and transactions between them during the existence of the relationship are voidable at the option of the ward. 171 Even transactions which have taken place after the guard- ianship has come to a close will not be permitted to stand, unless the influence which is presumed to arise from the existence of the re- lation has ceased to exist. 172 Parent and Child. The presumption of undue influence in transactions between parent and child is not as strong as in those between guardian and ward; but still courts of equity will scrutinize them closely, and will re- quire the parent to disprove the exercise of paternal influence. 17 * The question usually arises with respect to gifts, and accordingly falls under our next subdivision. Other Cases. The foregoing illustrations do not by any means exhaust the list of cases in which fraud and undue influence is presumed by reason of the fiduciary relations between the parties. Promoters and offi- cers of corporations occupy confidential relations towards the cor- poration and the stockholders, and they are governed by the rules applicable to trustees generally. 174 So with executors and adminis- 169 Gibson v. Jeyes, 6 Ves. 266, 271. i7o Hylton v. Ilylton, 2 Ves. Sr. 548, 549; Hatch v. Hatch, 9 Ves. 292. i-i Powell v. Glover, 3 P. Wms. 251, note; Hendee v. Cleaveland, 54 Vt. 142; Walker v. Walker, 101 Mass. 169; Meek v. Perry, 36 Miss. 190. i-2 Hylton v. Hylton, 2 Ves. Sr. 549; Waller v. Armistead, 2 Leigh (Va.) 11; Wright v. Arnold, 14 B. Mon. 63S; Rist v. Hartner, 44 La. 430, 10 South. 759. "8 Williams v. Williams, 63 Md. 371; Noble v. Moses, 74 Ala. 604; Id., 81 Ala. 530, 1 South. 217; Davis v. Dunne, 46 Iowa, 684; Wright v. Vanderplank, 8 De Gex, M. & G. 133; Turner v. Collins, 7 Ch. App. 329. 174 Aberdeen Ry. Co. v. Blakie, 1 Macq. 461; Thomas v. Brownvilie, Ft. K. & P. R. Co., 109 U. S. 522, 3 Sup. Ct. 315; Munson v. Syracuse, G. & C. Ry. Co., l^:; X. Y. 58, 8 N. E. 355; Parker v. Nickerson, 112 Mass. 195; Erlanger v. New Sombrero Phosphate Co, 3 App. Cas. 1218, 1230. Ch. 7] FRAUD. 151 trators, 175 partners, 176 and husbands and wives. 177 Indeed, courts of equity have always been careful not to fetter this useful jurisdiction by defining the exact limits of its exercise. 178 SAME — GIFTS BETWEEN PERSONS IN FIDUCIARY RELA- TIONS. 94. A gift to one in a fiduciary relation -with the donor is regarded with even greater suspicion than a contract between such persons. The donee must rebut the pre- sumption of fraud by showing that the gift was not the result of undue influence; that it was the free, voluntary, and well-understood act of the donor; and, under the English rule, that he had independent advice in the mat- ter. 179 In discussing the subject of contracts between persons in fiduciary relations, it was shown that the payment of a fair and adequate price was one of the facts which must appear in order to sustain the trans- action. 180 A gift to a person in a fiduciary relation, in which there is no valuable consideration whatever, is therefore subject to a still more jealous scrutiny, and a court of equity will weigh every such transaction with golden scales. 181 And this is particularly the case when the effect of the gift is to divert an estate from those who by the ties of nature would be its recipients. 182 It has even been held that, though no confidential relation subsists, the burden is on the donee to show the righteousness of the transaction, and that the its i V es v. Ashley, 97 Mass. 198; Green v. Sargeant, 23 Vt. 466. 176 Simons v. Vulcan Oil & Min. Co., 61 Pa. St. 202; Wheeler v. Sage, 1 Wall. 518; Bowman v. Patrick, 36 Fed. 138. 177 Shea v. Shea, 121 Pa. St. 302, 15 Atl. 629; Bartlett v. Bartlett, 15 Neb. 593, 19 N. W. 691; Brison v. Brison, 75 Cal. 525, 17 Pac. 689; Farmer v. Far- mer, 39 N. J. Eq. 211. 178 Tate v. Williamson, 2 Ch. App. 55. 179 It should be borne in mind that testamentary gifts are not within the op- eration of this rule, and that it applies solely to gifts inter vivos. iso Ante, 147, 148. i8i Wright v. Vanderplank, 8 De Gex, M. & G. 137; Huguenin v. Baseley, 14 Ves. 275, 2 White & T. Lead. Cas. Eq. 1156. 182 Ross v. Conway, 92 Cal. 632, 28 Pac. 7S5. 152 QBOUNDS FOB EQUITABLE RELIEF. [Ch. 7 donor knew and iindersl 1 what he was doing. 183 The existence of a confidential relatioD add- another consideration; and the question then is ool whether the donor knew what he was doing, but how the intention to give was produced, and, though the donor was well aware as to whal he did, yet, if his disposition to do it was produced by undue influence, the transaction will be set aside. 184 The modern rule in England is that such a gift will not be sustained unless the donor had competent and independent advice in the matter. 185 With us, however, all that seems to be necessary is to show the absence of undue influence, and full knowledge by the donor of all the facts, and of the nature and effect of the transfer. 188 If these things ap- pear, the gift will be sustained, for there is no rule of law which pro- hibits a man from making a voluntary disposition of his property during his lifetime. 187 As to ilie persons within the operation of the principle, it may be stated that any relationship which raises a presumption against the fairness of a contract necessarily does the same with respect to a gift. Donations from cestui que trust to trustee, 188 from principal to agent, 189 from client to attorney, 190 from ward to guardian, 191 from child to parent, 192 are all presumptively invalid. Some of the cases 183 Hoghton v. Hoghton, 15 Beav. 299. is* Huguenin v. Baseley, 14 Ves. 273, 2 White & T. Lead. Cas. Eq. 1156. "5 Rhodes v. Bate, 1 Ch. App. 252; Smith v. Kay, 7 II. L. Cas. 772. 188 Ralston v. Turpin, 129 U. S. 675, 9 Sup. Ct. 420; Soboranes v. Soberanes, 97 Cal. 140. 31 Pac. 910; Sanfley v. Jackson, 16 Tex. 579; Boyd v. De La Montagnie, 73 N. Y. 498, 502. Same rule applied to will, Garvin v. Williams, ■II Mo. 465. 18T Cases cited in preceding note. 188 Hatch v. Hatch, 9 Ves. 292. 189 Ralston v. Turpin, 129 U. S. 675, 9 Sup. Ct. 420; Hall v. Knappenberger (Mo. Sup.) 6 S. W. 381; Hobday v. Peters, 28 Beav. 349. 190 Nesbit v. Lockman, 34 N. Y. 167; Greenfield's Estate, 14 Pa. St. 489. In England a gift to an attorney made by a client pending suit will not be sus- tained, unless the client had independent professional advice. Morgan v. Miii. it. 6 Ch. Div. 638. Ajshton v. Thompson, 32 Minn. 25, 18 N. W. 918; Fish v. Miller, 1 Hoff. Ch. li<;7; Everitt v. Everitt, L. R. 10 Eq. 405; Hylton v. Hylton, 2 Ves. Sr. 547, 549. i»2 Whitridge v. Whitridge, 76 Md. 54, 24 Atl. 645; Baldock v. Johnson, 14 Or. 542, 13 Pac. 434; Taylor v. Taylor, 8 How. 183; Baker v. Bradley, 7 De Gex, M. & G. 597; Wright v. Vanderplank, S De Gex, M. vV <;. L35, 146. Ch. 7] FRAUD. 153 hold that undue influence is not to be inferred from the relation of parent and child, where the gift is from the parent to the child ; 193 but where the parent is of great age, or is enfeebled by disease, and conveys his entire estate to one child, to the exclusion of other children dependent on his bounty, the burden is unquestionably on the donee to show that the gift was made freely and voluntarily, and with full knowledge of all the facts, and with perfect under- standing of the effects of the transfer. 19 * In addition to the fore- going classes, it has been held that the relation between a physician and his patient is sufficient to support a claim for relief against a voluntary gift, on the ground of undue influence. 195 A clergyman or other religious adviser is likewise within the principle; 196 and so is a professor of spiritualism, with respect to a believer in his art. 197 Gifts by wife to husband are not outside the scope of the rule, 198 and even a gift from an engaged lady to her suitor is liable to be carefully scrutinized, and, to sustain it, the gentleman must be pre- pared to show that it was made without undue solicitation or pres- sure. 199 FRAUDS ON THIRD PERSONS. 95. Not only shall parties to a transaction act in good faith as between themselves, but they shall not act in bad faith in respect to other persons "who stand in such rela- 193 Millican v. Millican, 24 Tex. 446. i94Whelan v. Whelan, 3 Cow. 537; Todd v. Grove, 33 Md. 194; Highber- ger v. Stiffler, 21 Md. 352; Soberanes v. Soberanes, 97 Cal. 140, 31 Pac. 910. 195 Dent v. Bennett, 4 Mylne & C. 269; Woodbury v. Woodbury, 141 Mass. 329, 5 N. E. 275. The relation of physician and patient does not per se pre- vent the physician from accepting a gift from the patient. Doggett v. Lane. 12 Mo. 215; Andenreid's Appeal, 89 Pa. St 114. we Ford v. Hennessy, 70 Mo. 5S0; Ross v. Conway, 92 Cal. 632, 28 Pac. 7S. _ >; Nachtrieb v. Harmony Settlement, 3 Wall. Jr. 66, Fed. Cas. No. 10,003; Hu- guenin v. Baseley, 14 Ves. 275, 2 White & T. Lead. Cas. Eq. 1156. is? Lyon v. Home, L. R. 6 Eq. 655. 198 Boyd v. De La Montagnie, 73 N. Y. 498, 502; Stiles v. Stiles, 14 Mich. 72; Hollis v. Francois, 5 Tex. 195; Campbell's Appeal, 80 Pa. St. 298; Smyley v. Reese, 53 Ala. S9; Scarborough v. Watkins, 9 B. Mon. 540. 199 page v. Home, 11 Beav. 227; Cobbett v. Brock, 20 Beav. 524. 154 GROUNDS FOK EQUITABLE BELIEF. [Ch. 7 tions to either as to be affected by the transaction or its consequences. 200 In the cases considered under the foregoing subdivision, one of the parties to a transaction or his privies sought to impeach it for fraud practiced on hira by the other. The questions now to be considered arise where a third person, not a party to the transaction, assails it. for collusion between the parties, resulting in prejudice or loss to hi in. Several classes of cases fall under this subdivision. SAME— COMPOSITION WITH CREDITORS. 96. A composition by a debtor with his creditors, under which they agree to accept a part of their debts in satis- faction of the whole, is based on the principle that all the creditors shall stand on an equal footing, and observe good faith towards each other, and therefore any secret arrangement between the debtor and a particular creditor whereby he is placed in a more favored position than the others is a fraud on them, and renders the composition agreement voidable. 201 Where a secret preference is thus given one of the creditors, the others have the right to rescind the composition agreement, and re- cover the full amount of their debts. 202 On the other hand, the creditor who is the beneficiary of the secret agreement cannot en- force it against the debtor; 203 and it has even been held that the 200 Lord Hardwicke, in 2 Ves. Sr. 15G, 157; Wallis v. Duke of Portland, 3 Ves. 502. 201 Cullingworth v. Loyd, 2 Boav. 385; Leicester v. Rose, 4 East, 372; Rams- dell v. Edgarton, S Mete. (Mass.) 227; Lawrence v. Clark, 3G N. Y. 128; Willis v. Morris, G3 Tex. 458. 202 Kullman v. Greenebaum, 92 Cal. 403, 28 Pac. 674. Subsequent creditors not parties to the composition agreement cannot attack it. Guggenheimer v. Groeschel, 23 S. C. 274. 203 Jackman v. Mitchell, 13 Ves. 581; Fay v. Fay, 121 Mass. 561; Sternburg v. Bowman, 103 Mass, oii.~>; Lawrence v. Clark, 36 N. Y. 128. Ch. 7] FRAUD. 155 latter may recover any money paid by him to such creditor under the agreement. 204 SAME— FRAUDULENT CONVEYANCES. 97. A fraudulent conveyance is one, the object, tendency, or effect of which is to defraud another, or the intent of •which is to avoid some debt due by or duty incumbent on the party making it. 205 Transfers of property made with the intention of defrauding cred- itors were voidable at common law, 206 on the principle that a man must be just before he is generous; 207 but statutes were enacted at an early day in England with a view of affirming the rule and carry- ing the principle of the common law more fully into effect. The principal of these was the statute of 15 Eliz. c. 5, which declared all gifts, grants, and conveyances of goods, chattels, or lands made with an intent to hinder, delay, or defraud creditors, void as against the person to whom such frauds would be prejudicial; but conveyances made bona fide, on good consideration, and without notice of any fraud or collusion, were excepted from the operation of the statute. 208 This statute has been universally adopted in this country as the basis of our jurisprudence on the subject. 209 SAME— ESSENTIAL ELEMENTS OF FRAUDULENT CONVEY- ANCE. 98. To render a conveyance fraudulent, there must be: (a) A creditor to be defrauded. (b) An intention to defraud. (c) A transfer of property. 210 204 Mare v. Sandford, 1 Gift. 288. This proposition is doubted in Solinger v. Earle, 82 N. Y. 395, on the ground that the parties are in pari delicto. 205 Bouv. Law Diet. tit. "Fraudulent Conveyances"; 2 Kent, Conim. *440; Wait, Fraud. Conv. § 15. 2oeTwyne's Case, 3 Coke, 80, 1 Smith, Lead. Cas. 33; Cadogan v. Kennett, 2 Cowp. 432; Clements v. Moore, 6 Wall. 312. 207 Planters' & Merchants' Bank v. Walker, 7 Ala. 946. 208 Kerr, Fraud & M. 148. 209 Story, Eq. § 353; 2 Pom. Eq. Jur. § 968. 210 Wait, Fraud. Conv. § 15; Hoyt v. Godfrey, 8S N. Y. 669. lob" GROUNDS FOB EQUITABLE RELIEF. [Ch. 7 SAME— THE CREDITOR. 99. Before a creditor can assail a conveyance in equity, he must have reduced his debt to judgment, or have ac- quired a lien on specific property, or placed himself in a position to obtain one on the avoidance of the transfer. 211 It is not necessary, however, that his demand be certain and liquidated at the time of the transfer, or that it be then in existence, for a subsequent creditor may avoid a fraudulent conveyance, as well as an antecedent or exist- ing creditor. Courts of equity are not tribunals for the collection of debts; 212 and therefore, before they will entertain jurisdiction of an action to set aside a debtor's conveyance, the debt must be established by some judicial proceeding', and it must generally be shown that the L( gal means for its collection have been exhausted. 213 If the ob- ject of the suit be to reach personal property or equitable assets, it must appear that an execution has been returned unsatisfied, 214 unless the property is not susceptible to levy. 215 The demand need not, however, be certain and liquidated at the time of the convey- ance. It is sufficient that the creditor has a cause of action against the debtor, and it is immaterial whether it arises out of contract or out of tort. 216 Thus, it has been held that one who has a cause of action for libel or slander, 217 seduction, 218 breach of marriage prom- ise, 219 or assault and battery 220 is a "creditor," within the meaning 211 Southard v. Benner, 72 N Y. 426. 212 Webster v. Clark, 25 Me. 314. 213 Board of Public Works v. Columbia College, 17 Wall. 530; Powell v. Howell, <;3 N. C. 284; Fox v. Moyer, 54 N. Y. 128. 214 Baxter v. Moses, 77 Me. 4G5, 1 Atl. 350; McElwain v. Willis, 9 Wend. (N. Vi 548; Yasser v. Henderson, 40 Miss. 519; Newman v. Willetts, 52 111. 98. 2i5 Snodgrass v. Andrews, 30 Miss. 472. 210 Bishop v. Redmond, 83 Ind. 157; Weir v. Day, 57 Iowa, S4, 10 N. W. 304; □ v. Bryant, 2 Pick. 411; Bongard v. Block, SI 111. ISO. 217 Cooke v. Cooke, 43 M<1. r.-ji'; Hall v. Sands, 52 Me. 355. 2i8 Hunsinger v. Ilofer, 110 Ind. 390, 11 N. E. 463. 2i»-Hoffmaii v. Junk, 51 Wis. 013, 8 N. W. 493; McVey v. Ritemous, 40 Ohio St. 107. Martin v. Walker, 112 Hun, 46. Ch. 7] FRAUD. 157 of the statute. Nor need the debt be in existence at the time of the conveyance. It may be avoided by subsequent creditors if made in contemplation of future indebtedness, 221 as well as by antecedent and existing creditors. An important distinction, however, exists between these two classes of creditors. A voluntary conveyance is presumptively fraudulent as against antecedent and existing cred- itors ; 222 but subsequent creditors have the burden of showing that it was executed as a cover for future schemes of fraud. 223 SAME— INTENT TO DEFRAUD. 100. To render a conveyance voidable, there must be an intent, participated in by both the grantor and the grantee, to defraud the grantor's creditors, except where the con- veyance is voluntary, when the grantor's fraudulent intent alone will be sufficient to avoid it. The intent to hinder, delay, or defraud creditors is the essential aEd poisonous element in the transaction. 224 'Intent or intention is an emotion or operation of the mind, and can usually be shown only by acts or declarations; and. as acts speak louder than words, if a party does an act which must defraud another his declaring that he did not by the act intend to defraud is weighed down by the evi- dence of his own act." 225 Since every man is presumed to intend the natural and necessary consequence of his acts, the absence of actual or meditated fraud is not in all cases decisive in favor of the conveyance; 226 and therefore a voluntary conveyance, the natural 221 Case v. Phelps, 39 N. Y. 164; Day v. Cooley. 118 Mass. 527; Mullen v. Wilson. 44 Pa. St. 413; Smith v. Vodges, 92 U. S. 1S3. 222 Lerow v. Wilmarth, 9 Allen (Mass.) 3S6; Parish v. Murpkree, 13 How. 92; Babcock v. Eekler. 24 N. T. 625; Jenkins v. Clement, 1 Harp. Eq. (S. C.) 72. 14 Am. Dec. 705. note. Some cases hold that a voluntary conveyance is not only presumptively, but absolutely, void, as against existing creditors. Reade v. Livingston, 3 Johns. Ch. (N. Y.) 4S1; Freeman v. Pope, L. R. 9 Eq. 211. 223 Horbach v. Hill. 112 U. S. 149, 5 Sup. Ct. SI; Teed v. Valentine, 65 N. Y. 474; Matthai v. Heather, 57 Md. 4S3. 224 Moore v. Hinnant, 89 X. C. 455; Worthy v. Brady, 91 N. C. 269. 225 per Sutherland, J., in Babcock v. Eekler, -4 X. Y. 632. 226 Lukins v. Aird, 6 Wall. 79; Kisterbock's Appeal, 51 Pa. St. 4S5. 158 GROUNDS FOR UJUITABLE RELIEF. [Ch. 7 and accessary effecl of which is to hinder, delay, and defraud cred- itors, is voidable by them, though the debtor may have believed he had a right to make it. 227 We mnv come to the question, in what cases must the grantee par- ticipate in the grantor's scheme to defraud, in order to render the conveyance voidable by the grantor's creditors? In considering this qnesl ton, we must bear in mind two principles heretofore announced, viz.: (1) An equity founded on a valuable consideration is superior to one founded on a mere voluntary transfer or gift; and (2) an equity to a specific thing is superior to an equity general in its scope or nature. 228 A creditor has an equity which entitles him to subject his debtor's property to the satisfaction of his claim. One who pur- chases that property for a valuable consideration after that debt was incurred has also an equity in that property; and, though it is subsequent in time to that of the creditor, it is yet superior, for the obvious reason that the purchaser has not trusted, as the creditor has, to the personal responsibility of the debtor, but has paid the con- sideration on the faith of the debtor's actual title to the specific property transferred. 229 The creditor must therefore prove a par- ticipation of the grantee in the debtor's fraud whenever the grantee is a purchaser for value. 230 When, however, the transfer is not founded on a valuable consideration, but is voluntary, then the other principle comes into play, viz. an equity founded on a valuable consideration is superior to one founded on a mere voluntary trans- fer or gift. In other words, a creditor whose claim is founded on a valuable consideration may impeach a voluntary transfer or gift without showing that the grantee participated in the debtor's fraud- ulent intent. 231 227 Potter v. McDowell, 31 Mo. 62. 228 Ante, 99, 100. 229 Seymour v. Wilson, 19 N. Y. 417, 420. 230 prewit v. Wilson, 103 U. S. 22; Mehlhop v. Pettibone, 54 Wis. 652, 11 X. W. 553, and 12 X. W. 443; ScLroeder v. Walsh, 120 111. 403, 11 X. E. 70; Jaeger v. Kelley, 52 X. Y. 274; Foster v. Hall, 12 Pick. (Mass.) 89. 231 Laughton v. Harden, 68 Me. 213; Marden v. Babcock, 2 Mete. (Mass.) 104. See, also, cases cited in notes 222, 223. Ch. 7] fraud. 159 SAME— TRANSFER OF PROPERTY. 101. Property of all kinds, real and personal, legal and equitable, vested, reversionary, or contingent, is suscepti- ble of fraudulent alienation, and may be reclaimed by the grantor's creditors. 232 QUALIFICATION— The thing disposed of must be of some value, out of which the creditors might have realized the whole or a portion of their claims. 233 "The entire property of which a debtor is the real or beneficial owner constitutes a fund which is primarily applicable, to the fullest extent of its entire value, to the payment of its owner's debts; and the courts will not allow any of that value to be withdrawn from such primary application if they can find any legal or equitable ground on which to prevent such withdrawal." 234 The right of creditors to pursue property fraudulently conveyed away by their debtor is therefore not limited to that which is of a tangible nature, and which may be levied on and sold under execution, but extends to every species of property, including intangible rights and choses in action, 235 such as annuities, 236 royalties, 237 and corporate stock. 238 Qualification. An important limitation on the right of the creditors to pursue their debtor's property is this: The thing disposed of must be of some value, out of which the creditors might have realized the whole or a part of their claims. 239 Therefore property exempt by statute from liability for the grantor's debts cannot be reclaimed by his creditors. 240 232 May, Fraud. Con v. p. 17; Wait, Fraud. Conv. §§ 24, 25. 233 Hoyt v. Godfrey, 88 N. Y. 669. 234 Essay by Joshua Reynolds, Esq., on "Fraudulent Conveyances," quoted in Wait, Fraud. Conv. § 24. 235 Wait, Fraud. Conv. § 24. 236 Norcutt v. Dodd, 1 Craig & P. 100. 237 Lord v. Harte, 118 Mass. 271. 238 Bayard v. Hoffman, 4 Johns. Ch. (N. Y.) 450. Equitable interest in real estate, Edmeston v. Lyde, 1 Paige (N. Y.) 641. 239 Hoyt v. Godfrey, 88 N. Y. 669. 2« O'Conner v. Ward, 60 Miss. 1037; Nichols v. Easton, 91 U. S. 726; Car- 160 GROUNDS FOR EQUITABLE RELIEF. [Ch. 7 Another exception exists as to the personal talents and industry of tli«' debtor. The creditors cannot compel him to work; and hence lir does n«»t defraud them if he chooses to give away his services by working gratuitously for another. 241 SAME— FRAUD ON MARITAL RIGHTS. 102. A conveyance, by either party to a marriage con- tract, of his or her property, without the knowledge of the other, and with the intent of depriving such other of the rights which he or she would otherwise acquire in the property by the marriage, is a fraud on, and may be avoided by, such other. The earlier cases on this subject arose where a woman, in con- templation of marriage, settled her real estate in trust to her sep- arate use, for the purpose of depriving her intended husband of the rents and profits which devolved on him during coverture by the common law. But courts of equity, though they were wont to pro- tect married women in the enjoyment of their separate estates, held that such a conveyance made by a woman pending a marriage en- gagement, without notice to her intended husband, was a fraud on the husband's marital rights, and was voidable by him because affected with that fraud. 242 This application of the rule has, of course, become obsolete since the enactment of the married women's statutes in the several states, giving married women complete control of their real estate; and, through one of the curious changes wrought by Father Time, the rule is now chiefly applied to protect their in- choate dower interests in real estate conveyed away by their intend- ed husbands in contemplation of marriage, 243 though a case occa- hart v. Harshaw, 45 Wis. 340; Taylor v. Duesterberg, 109 Ind. 165, 170, 9 N. E. 907; Washburn v. Goodbeart, 88 HI. 229; Rhead v. Hounson, 46 Mich. 243, 9 X. W. 267. 2« Abbey v. Deyo. 44 N. Y. 347. 2« Strathmore v. Bowes, 1 Ves. or. 22, 1 White & T. Lead. Cas. Eq. 605; England v. Downs, 2 Beav. 522; Lance v. Norman, 2 Ch. R. 79. 2*a De Armond v. De Armond, 10 End. 191; Smith v. Smith, G N. J. Eq. 515; Brown v. Bronson, 35 Mich. 415; Leach v. Duvall, 8 Bush (Ky.) 201; Kelly Ch. 7] FRAUD. 1G1 sionally arises where a husband complains of an alienation by the wife as in fraud of his inchoate estate by the curtesy. 244 By the weight of modern authority, mere noncommunication to the intended spouse of the execution of a deed in contemplation of marriage is not conclusive on the question of fraud, but the cir- cumstances surrounding the case may be shown; 245 and a voluntary conveyance of property to the children by a former marriage will be upheld where no representation has been made to the intended spouse as to the extent of the grantor's property, and the provision for the children is reasonable when compared with the balance of the estate. 24 * SAME— FRAUD ON POWERS. 103. The donee of a limited power must execute it bona fide, for the end designed; otherwise the appointment will be held fraudulent and void in equity. Where an owner of land confers on another a power to dispose of an estate therein, the donee of the power must act with good faith and sincerity, and with an entire and single view to the real pur- pose and object of the power. He cannot carry into execution any indirect object, or acquire any benefit for himself, either directly or indirectly. 247 Thus, where a father has a power of appointment among his children, an appointment in favor of one of them, in con- sideration of a promise by the appointee to pay the father's debts, is void. 248 So, also, an appointment will be deemed fraudulent when a father, having a power of raising portions for his children, directs a portion to be raised long before it is required, or in favor of v. McGrath, 70 Ala. 75; Swaine v. Perine, 5 Johns Ch. 482; Kline v. Kline, 57 Pa. St. 120; Beere v. Beere, 79 Iowa, 555, 44 N. W. 809. 244 Ferebee v. Pritchard, 112 N. C. 83, 16 S. E. 903. 245 Dudley v. Dudley, 76 Wis. 567, 45 N. W. 602; Champlin v. Champlin, 16 R. I. 314, 15 Atl. 85; Butler v. Butler, 21 Kan. 521. 246 Alkire v. Alkire, 134 Ind. 350, 32 N. E. 573; Kinne v. Webb, 54 Fed. Rep. 34; Murray v. Murray, 90 Ky. 1, 13 S. W. 244. 247Aleyn v. Belchier, 1 Eden, 132, 1 White & T. Lead. Cas. Eq. 573; Port- land v. Tophan, 11 H. L. Cas. 32. 248 Farmer v. Martin, 2 Sim. 502; In re Kirwan's Trusts, 25 Ch. Div. 373. eq.jur.— 11 162 GROUNDS FOR EQUITABLE RELIEF. [Uh. 7 a sickly child, with a view of acquiring the money on its decease as next of kin. 249 2*8 Hinehingbroke v. Seymour, 1 Brown. Ch. 395; Wellesley v. Mornington, 2 Kay & J. 143. American cases on this subject are very few. The question of fraudulent execution of powers has, however, been considered in the follow- ing, among other, cases: William's Appeal, 73 Pa. St 249; Jackson v. Veeder, 11 Johns. 169, 171; Haynesworth v. Cox, Harp. Eq. (S. C.) 117, 119; Buding- ton v. Munson, 33 Conn. 481; Lippincott v. Ridgway, 10 N. J. Eq. 164. Ch. 8] PROPERTY IN EQUITY TRUSTS. 163 CHAPTER VIII. PROPERTY IN EQUITY— TRUSTS. 104. Definition and History of Trusts. 105. Classification of Trusts. 106. Express Private Trusts. 107. Parties. 108. The Settlor. 109. The Trustee. 110. Cestui Que Trust 111. What Property Subject to Trust. 112. Creation of Trust. 113. Words Essential to Create Trust. 114. Consideration to Support Trust— Voluntary Settlements. 115. The Object Proposed by the Trust. 116-119. Interpretation of Trusts. 120. Nature of Cestui Que Trust's Estate. 121. Passive Trusts. 122. Active or Special Trusts. 123. Public or Charitable Trusts. 124. Resulting Trusts. 125. Classification. 126. Parting with Legal and Retaining Equitable Interest. 127. Purchase in Name of Third Person. 128. Purchase in Name of Stranger. 129. Purchase in Name of Wife, Child, or Near Relative. 130. Constructive Trusts. 131. Duties and Liabilities of Trustees. 132. Getting in Outstanding Trust Property. 133, 134. Custody and Care of Trust Property. 135. Investments. 136. Liability for Acts of Cotrustee. 137. Compensation. 138. Remedies of Cestui Que Trust— Following Trust Estate. 139. Personal Remedies. 140. Removal of Trustee. DEFINITION AND HISTORY OF TRUSTS. 104. A trust may be defined to be an obligation under ■which a person in whom the legal title to property is L64 PROPERTY IN EQUITY — TRUSTS. [Ch. 8 vested is bound in equity to deal -with the beneficial in- terest therein in a particular manner, either wholly in favor of others, or partly in favor of others conjointly with himself. 1 The introduction of uses and trusts in the English law is generally ascribed to the clergy. In the reign of Edward L, statutes of morr- main were enacted, which prohibited lands from being granted to religious houses. It is generally supposed that the clergy, who were familiar with the dual ownerships of the Koman law, conceived the idea of evading these statutes by grants to feoffees for the benefit of these houses. Mr. Justice Holmes - has, however, traced the origin of uses and trusts to a different source, and he finds in the Teutonic "salman" the ancestor of the medieval feoffee to uses. Each was a person to whom property was transferred in order that he might make a conveyance according to the grantor's directions, and the essence of the relation in each case was the fiducia of the grantee. Thus, the executor was originally a salman, whose duty it was to dis- tribute the estate in the manner directed by the will of the owner, including real estate, until devises were prohibited under the early Plantagenets. But whatever may have been its origin, the reason for the perpetua- tion of the system of uses is to be found in the hardships and re- strictions incident to the feudal tenure of land. Absolute ownership in land was never recognized by the common law. The person in possession or enjoyment was vested only with a legal estate or inter- est, of greater or less extent or duration, subject to the right of a superior lord, or, at any rate, of the crown, as chief and paramount lord of all the soil of the country. During a period of 500 years, from the days of the Norman Con- quest to the time of Henry VIIL, this legal estate or interest could not be devised by will, and no means existed by which the legal es- tate could be prevented from passing to the natural heir, who was generally the oldest son, with the possible result that the other i Underh. Eq. p. 32. In the preparation of the following sketch of the history of uses and trusts, Haynes' Outlines of Equity and Kerley's History of Equity have been my chief guides. - 1 Law Quar. Rev. 163. Ch. 8] DEFINITION AND HISTORY OF TRUSTS. 165 children might be left unprovided for. The court of chancery, how- ever, held that, if land was conveyed to feoffees to use, the use was devisable; and thus, by putting the land in use, an absolute power of testamentary disposition was acquired. Again, the legal interest in land could be conveyed only in a formal notorious manner by livery of seisin; that is, the conveying party executed a deed of feoffment, and then openly, on the land itself, delivered seisin to the feoffee by handing to him a clod, a piece of turf, or a twig, with words showing that the delivery so made was symbolical of the delivery of the whole property. But, when the land had been conveyed to uses, the cestui que use might deal with the beneficial interest by an entirely secret deed or instrument, without livery. The acquisition of these larger powers of alienation must have been a great induce- ment for putting lands in use. Again, the use was not forfeitable for the offense of the cestui que use, nor did it escheat in the event of attainder, though the land itself was liable to be forfeited, or to escheat, in the event of the attainder of the feoffee to uses. In the turbulent times of the mid- dle ages, men who took an active interest in political movements would therefore naturally vest their estates in feoffees to uses whose known characters were guaranties against the exposure of the estates to forfeiture or escheat. Another inducement to put lands in use is to be found in a desire to escape from many of the oppressive feudal rights of the lord, such as marriage and wardship. The rights of wardship enabled the lord, when a tenant by knight service died leaving an infant heir, to enter on the heir's lands, and to take the whole rents and profits during minority, subject to the heir's maintenance. The right of marriage authorized the lord to marry his ward to the highest bid- der, subject to the only restriction that the marriage was not a disparaging one; and, if the ward refused to accept the marriage offered, he was heavily mulcted. Still another inducement to put land in use is to be found in the fact that a creditor could, by means of the writ of elegit, take posses- sion of one-half the lands of which his debtor was seised of a legal estate, and subject the rents and profits in satisfaction of his debts; but he had no such power over the use. 166 PROPERTY IX EQUITY — TRUSTS. [Ch. 8 For all the foregoing reasons, the custom of putting lands in use became extremely popular among tenants. But, for the same rea- Bons, it must have been extremely distasteful to the great lords and !h" crown, who were defrauded of their "wardships, relieifis, heriots, and escheats,'' and to the creditors who were deprived of their "ex- tent for debt." 3 The statute books of England bear witness to a continual struggle against the system. 4 Finally, in the reign of Henry VIII. a supreme effort was made to sweep away uses, root and branch. The celebrated statute of uses (St. 27 Hen. VIII. c. 10) was passed to reinstate the "common laws of this realm" by turning the equitable uses into legal estates, with all the incidents and burdens of legal estates. 5, s Bacon's Works, Use of the Law, vol. 13, p. 240. The whole of this oft- quoted passage, arraigning the system of uses, is as follows: "A man that had cause to sue for his land knew not against whom to bring his action, nor who was the owner of it. The wife was defrauded of her thirds; the husband of being tenant by the curtesy; the lord of his wardship, relief, heriot, and escheat; the creditor of his extent for debt; the poor tenant of his lease." * The more important of those statutes are 50 Edw. III. c. 6, giving creditors execution against lands and chattels in spite of gifts made in fraud of them; 7 Rich. II. c. 12, forbidding aliens, and 15 Rich. II. c. 5, forbidding spiritual corporations or persons, to hold lands by way of use; 1 Rich. II. c. 1, making all grants by and executions against a seller of lands binding upon his heirs and upon feoffees to his or their use; 3 Hen. VII. c. 4, forbidding deeds of gift on trust made to defraud creditors; 4 Hen. VII. c. 17, declaring uses liable to wardships and reliefs; 19 Hen. VII. c. 15, declaring them liable to execution; and 26 Hen. VIII. c. 13, declaring them liable to forfeiture. In the twenty- third year of the reign of Henry VIII. a bill passed the house of lords greatly circumscribing the right to put land in use, but it was rejected by the commons. s The following is a summary of the statute: The preamble complains that by secret conveyances, and by wills made "by nude parolx and words, some- times by signs and tokens, and sometimes by writing" made for the most part by persons in extremis, with "scantly any good memory or remembrance," and "provoked by greedy and covetous persons lying in wait about them," many persons indiscreetly disposed of their inheritance, whereby heirs lost their lands, and lords their rights, and purchasers were made insecure; men lost their tenancies by curtesy, and women their dowers; perjuries were en- couraged, and the king was deprived of his profits in attainder, and on pur- chases by aliens; and many other inconveniences happened, — to the "utter subversion of the ancient common laws of this realm." The statute then provides, "for Jhe exterping and extinguishment" of these errors, that "where any person or persons stand or be seized of and in any lands, tenements, or Ch. 8] DEFINITION AND HISTORY OF TRUSTS. 167 The history of the English-speaking race does not furnish a more conspicuous example of the futility of legislation when opposed to current public opinion. 6 The statute declared that when any person stood "seized" of any "hereditament," to the use of another, such other should be deemed in lawful "seizin" of the "hereditament." Since the words "seized," "seizin," and "hereditament" were applica- ble only to freehold estates, the statute was adjudged not to affect any trusts of personal property or chattels or terms for years in land. It was also held, soon after the statute was passed, that special trusts, which cast some duty on the trustee, remained unexecuted by the statute, since in such case the trustee was not seised wholly to the use of another, but partly, at least, to his own use. The complete nullification of the statute, however, resulted from a decision of the common-law judges rendered about 20 years after its enactment. To enable the student to clearly understand this deci- sion, it is desirable to specifically call his attention to the operation of the statute. Before the statute, if there was a feoffment to A. and his heirs, to the use of B. and his heirs, A. took a legal estate in fee simple, and B. was a cestui que use, whose rights were disre- garded by the common-law courts, and who could seek his remedies only in chancery. After the statute the same limitation would se- cure, not only the use, but also the legal estate to B. ; in other words, the use would at once draw to itself the legal estate, or, as it is tech- nically expressed, the statute executed the use in B. In the decision above referred to, known as "Tyrrell's Case," T the common-law judges held that a use could not be limited upon a use. It therefore fol- other hereditaments to the use, confidence, or trust of any other person or persons or any body publick, by reason of any bargain, sale, feoffment, fine, recovery, covenant, contract, agreement, will or otherwise, all and every such person and persons and bodies politick that have any such use, confidence or trust in fee simple or otherwise, or in remainder or in reverter, shall stand and be seized and adjudged in lawful seizin, estate and possession of and in the same lands, * * * of and in such like estates as they had on use, trust or confidence of or in the same.' 7 Kerley, Hist. Eq. pp. 132, 133. « Mr. Sugden, in his introduction to Gilbert on Uses (page G3), says of the judicial nullification of the statute: "This should operate as a lesson to the legislature not vainly to oppose the current of general opinion; for, although diverted for a time, it will regain its old channel." 7 2 Dyer, 155a, 1 White & T. Lead. Cas. Eq. 335. PROPERTY IN EQUITY — TRUST8. [Cll. 8 lowed from this decision that when there was a limitation to A. and bis heirs, to the use of B. and his heirs, to the use of 0. (or in trust for < J.) and his heirs, the statute had no effect beyond the use limited to B. It converted the use first declared into a legal estate, but in bo doing its power was exhausted, and a second use or trust, declared upon or after the first, remained unaffected thereby. The court of chancery, however, following its former course of preserving to a grantee rights which were meant to be preserved by the grant, stepped in and supported, as trusts identical in character with the old uses, the trusts or uses which the law refused to recognize, and these are the trusts so familiar in later equity. The student is now able to appreciate Lord Hardwicke's remark: "A statute made upon great consideration, introduced in a solemn and pompous manner, by a strict construction, has had no other effect than to add at most three words to a conveyance." 8 It is not necessary to add to this brief sketch a history of the vari- ous steps by which trusts have obtained their present position in our jurisprudence. Enough has been said to render the definition of a trust intelligible, and it remains to point out the leading principles governing this class of property. CLASSIFICATION OP TRUSTS. 105. Trusts may be classified, as follows: (a) Trusts created by the intentional acts of the parties. (1) Express private trusts. (2) Public or charitable trusts. (b) Trusts created by operation of law. (1) Resulting trusts. (2) Constructive trusts. The foregoing classification by Mr. Lewin 9 not only calls attention to the very prominent distinction between the different kinds of s Hopkins v. Hopkins, 1 Atk. 591. 9 Lewin, Trusts, p. 18. Some writers use the term "implied trusts" to desig- nate the trusts created by operation of law. Others apply the same term to a class of express private trusts where, owing to the/ ambiguous language Ch. 8] EXPRESS PRIVATE TRUSTS. 1G9 trusts as regards their creation, but it also coincides with an equally prominent distinction in the nature of trusts themselves. These four species of trusts will naturally yield to further analysis as each is separately considered. Our attention will first be directed to ex- press private trusts. EXPRESS PRIVATE TRUSTS. 106. An express private trust is one created for the benefit of individuals or families, and designed for pri- vate convenience and support. 10 The distinction between a private and a public or charitable trust is that the former is created and intended for the convenience and support of private individuals or families, while the latter is created and intended for the general public good. The rules governing the two classes differ widely, and the distinctions will be pointed out when we consider public or charitable trusts. SAME— PARTIES. 107. The parties necessary to the creation of an express trust are: (a) The settlor, or person creating the trust. (b) The trustee, or the person in whom the legal title is vested. (c) The cestui que trust, or person entitled to the beneficial interest. SAME— THE SETTLOR. 108. Whoever is competent to deal with the legal estate may, if he be so disposed, vest it in a trustee for the pur- pose of executing the settlor's intention. 11 employed by the parties, their intention to create a trust is inferred or implied from the terms employed. The term "implied trusts" has therefore been designedly rejected as tending to confuse the student. io Perry, Trusts, § 22. n Lewin, Trusts, p. 21. 170 PROPERTY IN EQUITY — TR1 [Cll. 8 The creation of a trust is a modification of property in a particular fm in. All persons sui juris may impress a trust on property owned by them. A corporation may create a trust in land whenever it lias the power to alienate it. 1 - As to persons under disability, such as infants, married women, and lunatics, trusts created by them are on the same footing as absolute conveyances, and are voidable by them in the same manner and to the same extent as such conveyances would be. 13 SAME— THE TRUSTEE. 109. The trustee should be a person capable of taking and holding the legal estate, and possessed of natural capacity and legal ability to execute the trust, and domi- ciled -within the jurisdiction of the court." 1. The sovereign may sustain the character of a trustee, so far as regards the capacity to take the estate and execute the trust; but the difficulty lies in the remedy by which the cestui que trust can en- force the performance of the trust. 15 Since neither the United States nor any of the states can be sued without their consent, the only way in which they could administer a trust is through the legislative power. 16 -. Since the ancient doctrine that a trust rests on the foundation of personal confidence has evaporated, a corporation may now be a trustee, provided the trust is within the general scope of its corporate powers. 17 An unincorporated association cannot, however, act as trustee of a private trust, since it is incapable of taking title to the land. 18 12 Mayor, etc., of Colchester v. Lowten, 1 Ves. & B. 226; State v. Bank of Maryland, 6 Gill & J. 205; Dana v. Bank of U. S., 5 Watts & S. 226. Perry, Trusts, §§ 32-35. i* Lewln, Trusts, p. 30. ■ I. .win. Trusts, p. 30. io This was done In the case of the Smithsonian Institute, a public trust. St.it. U. S. 1S3G, c. 252. i- Attorney General v. St. John's Hospital, 2 De Gex, J. & S. 621. In re Howe, 1 Paige, 214; Story. J., Vidal v. Girard, 2 How. 188-190. In recent years the organization of trust companies having for their object the adminis- tration of trust estates has become very common in this country. is The rule is dlfferenl with respect to public trusts. Tucker v. Seaman's Ch. 8] EXPRESS PRIVATE TRUSTS. 171 3. A married woman is legally capable of being a trustee; but, ex- cept in special cases, courts regard her appointment as undesirable, because of the influence her husband is supposed to wield over her. 19 For this reason it rs also inadvisable to make an unmarried woman a trustee, since, if she should marry, the above disadvantages would at once arise. 20 4. An infant is under still greater disabilities, having no legal capacity or discretion. All of his acts, beyond such as are merely ministerial, are voidable. He cannot be held guilty of a breach of trust. A case, therefore, is scarcely conceivable in which circum- stances could warrant such an appointment. 21 5. An alien cannot act as trustee of real property, except in those states where he is permitted to hold land to his own use. 22 There is no objection anywhere, however, to his appointment as trustee of per- sonal property. 6. While an insolvent is not absolutely disqualified from being a trustee, and his insolvency has no effect on the trust estate, 23 his insolvency is unquestionably a good ground for his removal. 24 7. Lastly, equity never wants a trustee; and, whenever a trust is valid in its inception, equity will not permit it to fail either because of the trustee's death or his refusal to act, but will itself provide a trustee. 25 SAME— CESTUI QUE TRUST. 110. Under the maxim that equity follows the law, any one capable of taking the legal estate may, through the channel of trusts, be made the recipient of the equitable; 26 Aid Soc, 7 Mete. (Mass.) 188; Winslow v. Cummings, 3 Cush. 358. See post, 188. loDrummond v. Tracy, 1 Johns. Eng. Ch. 608; Still y. Ruby, 35 Pa. St. 373. 20 in re Campbell's Trusts, 31 Beav. 176. 2i Smith, Priu. Eq. p. 26; Perry, Trusts, §§ 52-54. 22 Perry, Trusts, § 55. 23 Harris v. Harris, 29 Beav. 107; Shryock v. Waggoner, 28 Pa. St. 431. 2* In re Barker's Trusts, 1 Ch. Div. 43; In re Adams' Trust, 12 Ch. Div. 634. See, also, post, 211. 28 Story, Eq. § 976; McCartee v. Orphan Asylum Soc, 9 Cow. (N. Y.) 437; Bowditch v. Banuelos, 1 Gray, 220; Dodkin v. Brunt, L. R. 6 Eq. 5S0. 28 Lewin, Trusts, p. 44. 172 PROPERTY IN EQUITY — TRUSTS. [Ch. 8 and, as a legal estate can be conveyed or devised only to a definite grantee or devisee, so the cestui que trust must likewise be certain and definite. - unnecessary to add anything to the black-letter text as to the classes of persons capable of becoming cestuis que trustent. It should be borne in mind, however, that no valid private trust can be created unless there is a certain and definite beneficiary. "If there is a single postulate of common law established by an un- broken line of decision, it is that a trust without a certain benefi- ciary who can claim its enforcement is void." 27 Thus, a trust for the benefit of "near relations" has been considered too indefinite to create a trust 28 The cestui que trust need not, however, be de- scribed by name; any other designation or description by which he may be identified is sufficient. 29 SAME— WHAT PROPERTY SUBJECT TO TRUST. 111. As a general rule, all property, whether real or personal, and whether legal or equitable, may be made the subject of a trust. 30 All property which is assignable either at law or in equity, real or personal, may be transferred in trust, including choses in action, 31 growing crops, 32 patent rights, 33 etc. As to foreign lands, the rule is that they are governed by the law of the state or country where located, and therefore an express trust in foreign lands will not be enforced. 34 SAME— CREATION OF TRUST. 112. At common law a trust could be declared by parol, but the statute of frauds, 35 requires trusts in real prop- 27 Per Wright, J., in Levy v. Levy, 33 N. Y. 97, 107. 23 Sale v. Moore, 1 Sim. 534. 29 Holmes v. Mead, 52 N. Y. 332, 343. 30 Lewin, Trusts, p. 47. si Row v. Dawson, 1 Ves. Sr. 332. 32 Kobinson v. Mauldin, 11 Ala. 077; McCarty v. Blevlns, 5 Yerg. 195. 33 Russell's Patent, 2 De Gex & J. 130. 34 Lewin, Trusts, p. 49. ss 29 Car. II. c. 3, § 7. Ch. 8] EXPRESS PRIVATE TRUSTS. 173 erty to be manifested by some -writing, signed by the party declaring the trust, or by his -will in writing. Since the statute relates only to trusts in real estate, trusts in personal property may still be created by parol. 36 Chattels real are, however, within the statute, and a trust of them must be evidenced by writing, as in the case of freeholds. 37 With respect to trusts in real estate, the first point to be noticed is that the statute does not require more than that the trust shall be manifested and proved by writing. No formal writing, such as a deed, is required. 38 Again, the statute is satisfied by written evidence of a trust which may not necessarily have been originally declared in writing. 39 It is nec- essary, however, that in such cases the evidence should clearly be shown to relate to the subject of the alleged trust; 40 and not only the fact of the trust, but also the terms of it, must be supported by written evidence under the signature of thp settlor. 41 In several of the states, the statute of frauds requires the trust to be "created or declared by an instrument in writing, signed by the party." The same construction has been placed on these words as on the origiual statute of frauds, and the same evidence is admissible to establish the trust. 42 With respect to wills, statutes in all the states require them to be in writing, signed by the testator, and attested by witnesses. Hence, where a trust appears in a paper of a testamentary character, not designed to take effect during testator's lifetime, and to be am- 36 Gilman v. McArdle, 99 N. Y. 451, 2 N. E. 464; Chace v. Chapin, 130 Mass 128; Hellman v. McWilliams, 70 Cal. 449, 11 Pac. 659; Crissman v. Crissman. 23 Mich. 218; Danser v. Warwick, 33 N. J. Eq. 133; Patterson y. Mills, 69 Iowa, 755, 28 N. W. 53. 3T Forster v. Hale, 3 Ves. 696. ss Perry, Trusts, § 82. 89 Forster v. Hale, 3 Ves. 696; Safford v. Rantoul, 12 Pick. 233; Whelan v. Whelan, 3 Cow. 537. 40 Forster v. Hale, 3 Ves. 696; Arms v. Ashley, 4 Pick. 71. « Smith v. Matthews, 3 De Gex, F. & J. 139; Steere v. Steere, 5 Johns. Ch. 1; Dyer's Appeal, 107 Pa. St. 446. 42 Perry, Trusts, § 81; Urann v. Coates, 109 Mass. 585; Cook v. Barr, 44 N. Y. 159; McClellan v. McClellan, 65 Me. 504. 17 1 PROPERTY IN EQUITY — TRUSTS. [Ch. 8 bulatory until his death, the writing must be executed with all the formalities of a will, or the trust will be inoperative. 43 Lastly, it should be noted that resulting and constructive trusts are not within the statute, and may be proved by parol. 44 SAME— WORDS ESSENTIAL TO CREATE TRUST. 113. Any language will suffice if it can be gathered therefrom that a trust -was intended, provided that the person to be benefited, the property, and the way it is to be disposed of are clearly indicated. 45 The word "trust" is, of course, the proper word to use in creating a trust; but words which import confidence, direction, proviso, or condition, and even words of recommendation or request (at all events in a will), may be construed to evince an intention to create a trust, unless accompanied by other words which indicate an intention that the first taker should have a discretionary power over the subject, or that the donor did not intend the wish to be imperative. 48 The plainest case of a trust occurs where property is conveyed or devised to A. in trust for B. But the word "trust" need not be used. Thus, a devise of land to A., with a proviso that B. shall have a home and : support thereon, is construed to impose a trust on A. to maintain B. on the land.* 1 So, if A. devises land to B., "he paying testator's debts," the proviso or condition is construed to impose a trust on B. to pay those debts. 48 Aj^ain, if testator bequeaths or devises prop- erty to A., and states that he "requests" 49 or 'mas confidence" 80 or "wishes and desires" 81 that it be applied for the benefit of B., A. «s Lewin, Trusts, p. 59; Perry, Trusts, § 93. " See post, 195. « Knight v. Knight, 3 Beav. 148, 172. 46 Howorth v. Dewell, 29 Beav. 18; Benson v. Whittam, 5 Sim. 22. *? Lyon v. Lyon, G5 N. Y. 339; Estate of Goodrich, 38 Wis. 492. « Wright v. Wilkin, 2 Best & S. 232. See, also, Stanley v. Colt, 5 Wall. 119; Sohier v. Trinity Clnirch, 109 Mass. 1. 49 Knox v. Knox, 59 Wis. 172, 18 N. W. 155. so Dresser v. Dresser, 4G Me. 48; Warner v. Bates, 98 Mass. 274. si Cockrell v. Armstrong, 31 Ark. 5S0; Reid's Adm'r v. Blackstone, 14 Grat. 303. Ch. S] EXPRESS PRIVATE TRUSTS. 175 will be regarded in equity as a mere trustee for B., since testator's words evince an intention that A. should not keep the property beneficially. Precatory Trusts. Trusts thus created by words of request, prayer, or recommenda- tion are called "precatory trusts"; and it is always difficult to say whether such words do or do not create a trust enforceable in equity. In modern decisions the leaning of the courts is against the establishment of precatory trusts. Thus, where a gift was to testator's widow, to be "at her disposal in any way she might think best for the benefit of herself and family," it was held that the widow took absolutely. In this case Lord Justice James said : "In hearing case after case cited, I could not help feeling that the offi- cious kindness of the court of chancery in interposing trusts where in many cases the father of the family never meant to create trusts must have been a very cruel kindness, indeed. I am satisfied that testator in this case would have been shocked to think that any per- son calling himself a next friend could file a bill in this court, and, under the pretense of benefiting the children, have taken the admin- istration of the estate from the wife." B2 The modern rule is not to rely on the mere use of any particular words, but to look at them in the light of the whole will, and thus ascertain the true intention of the testator." SAME— CONSIDERATION TO SUPPORT TRUST— VOLUNTARY SETTLEMENTS. 114. Unlike a contract, a trust requires no consideration to sustain it; but, where the trust is purely voluntary, the question -whether it will be enforced depends on whether it is perfectly created. If it is not perfectly created, — that is, if there is a mere intention of creating a trust, or a mere voluntary agreement to do so, and the 62 Lambe v. Eames, 6 Ch. App. 597. 53 in re Adams and Kensington Vestry, 27 Ch. Div. 394; Colton v. Colton, 127 U. S. 300, 8 Sup. Ct. 1164; Foose v. Whitraore, 82 N. Y. 405; Phillips v. Phillips, 112 N. Y. 197, 19 N. E. 411; Elliott v. Elliott, 117 Ind. 380, 20 N. E. 264; Mills v. Newberry, 112 111. 123; Hess v. Singler, 114 Mass. 56, 59. 17G PUOPERTY IN EQUITY — rRUSTS. [Ch. 8 settlor himself contemplates some further act for the pur- pose of giving it completion, — a voluntary trust will not be enforced or aided in equity. Where there is a valuable consideration, and a trust is intended to be created, formalities are of minor importance; for equity regards the substance, and not the form, and, considering that as done which ought to be done, will carry into effect a trust, if value has been given, however rudely created. 54 Thus, a deed of trust, based on value, which omits the trustee's name, will be reformed, and a proper trustee appointed, and his name inserted. 55 The same principle ap- plies to wills, where a consideration is implied. 58 For instance, where a testator directs a sale of his real estate, and a distribution of the proceeds among certain persons, but fails to appoint a trustee to make the sale and the distribution, the land will descend to the In ir: but he will be regarded in equity as the trustee, and the trust will be enforced as against him. 57 Voluntary Settlements. But where the trust is voluntary, and not created by will, the form of the transaction becomes of the utmost importance. The question then comes to this: Has the donor created a perfect trust, or has he merely agreed or evinced an intention to create one? If the declaration of trust is perfect and complete, equity will enforce it, though there is no consideration, since a man may divest himself of his property rights by gift. 58 If, however, the trust is not thus 54 Lewin, Trusts, p. 07; Underh. Eq. p. 40. 55 Burnside v. Way man, 49 Mo. 350. so Lewin, Trusts, 130. 57 Lewin, Trusts, 141. 58 In Richards v. Delbridge, L. R. 18 Eq. 11, 13. Sir George Jessel, M. R., said: "The principle is a very simple one. A man may transfer his property without valuable consideration in one of two ways: He may either do such acts as amount in law to a conveyance or assignment of the property, and thus completely divest himself of the legal ownership, in which case the person who by those acts acquires the property takes it beneficially or on trust, as the case may be; or the legal owner of the property may, by one or other of the modes recognized as amounting to a valid declaration of trust, constitute himself a trustee, and, without an actual transfer of the legal title, may so deal wilh the property as to deprive himself of its legal ownership, and declare that he will hold it from that time forward on trust Ch. 8]- EXPRESS PRIVATE TRUSTS. 177 perfected and complete, if there is a mere voluntary agreement, or an unfulfilled intention to create a trust, then equity will not enforce it, for an intention to make a gift is nudum pactum, and of no binding force either at law or in equity. 69 The question whether or not a voluntary trust has been perfectly created will, perhaps, be more easily comprehended if we consider, first, those cases where the donor proposes to convert himself into a trustee, and, secondly, those cases where he proposes to make a stranger trustee. 1. If the settlor proposes to convert himself into a trustee, then the trust is perfectly created, and will be enforced, so soon as the set- tlor has executed an express declaration of trust, intended to be final and binding on him ; and in this case it is immaterial whether the nature of the property is legal or equitable, or whether it be capable or incapable of transfer. 60 Thus, where one deposits money in bank for the other person." In Estate of Webb, 49 Cal. 541, 545, Crockett, J., said: "In such cases the point to be determined is whether the trust has been per- fectly created,— that is to say, whether the title has passed and the trust been declared; and, the trust being executed, nothing remains for the court but to enforce it." See, also, Milroy v. Lord, 4 De Gex, P. & J. 264, 274. 59 See cases cited in note 58. In Martin v. Funk, 75 N. Y. 134, 137, Church, C. J., says: "It is clear that a person sui juris, acting freely and with full knowledge, has the power to make a voluntary gift of the whole or any part of his property, while it is well settled that a mere intention, whether ex- pressed or not, is not sufficient, and a voluntary promise to make a gift is nudum pactum, and of no binding force. The act constituting the transfer must be consummated, and not remain incomplete, or not in mere intention; and this is the rule, whether the gift is by delivery only, or by the creation of a trust in a third person, or in creating the donor himself a trustee." In Stone v. Hackett, 12 Gray (Mass.) 227, it was said: "It is certainly true that a court of equity will lend no assistance towards perfecting a voluntary con- tract or agreement for the creation of a trust, nor regard it as binding so long as it remains executory. But it is equally true that if such a contract be exe- cuted by a. conveyance of property in trust, so that nothing remains to be done by the grantor or donor to complete the transfer of title, the relation of trustee and cestui que trust is deemed to be established, and the equitable rights and interests, arising out of the conveyance, though made without consideration,, will bo enforced in chancery." See, also, on the general subject, Allen v.. Withrow, 110 U. S. 130, 3 Sup. Ct. 517; Beaver v. Beaver, 117 N. Y. 421, 22 N. E. 940; Keyes v. Carleton, 141 Mass. 49, 6 N. E. 524; Hellman v. Mc Wil- liams, 70 Cal. 449, 11 Pac. 659. eo Ex parte Pye, 18 Ves. 140; Crawford's Appeal, 61 Pa. St. 52; Dickerson's Appeal, 115 Pa. St. 198, 8 Atl. 64. KQ.JUR. — 12 PROPERTY IN EQUITY — TRUSTS. [Ch. S in ) rust for another, and the account is so entered in the books of the bank, and in the pass book delivered to the depositor, a perfect trust is created, which will be enforced, though the cestui que trust was ignorant of the deposit until after the depositor's death, who retained ssion of the pass book during his lifetime. 81 Care must, however, be taken to distinguish this class of cases from those where the donor attempts to make an outright gift of property by transferring the legal title directly to the donee, and the gift proves to be ineffective, because all acts requisite to the passing of title have not been performed by the donor, such as the execution and delivery of a valid deed in case of real property, and the execu- tion of a valid assignment and delivery of possession in the case of personal property. "It is established as unquestionable law that a court of equity cannot, by its authority, render that gift perfect \\ hich the donor has left imperfect, and cannot convert an imperfect gift into a declaration of trust, merely on account of that imperfec- tion." 62 Thus, whore an intended gift of bonds proves ineffectual because the donor retains possession for the purpose of collecting the interest during his lifetime, the transaction cannot be sustained as a declaration of trust, though the intention to make the gift is clearly manifested. 63 So, where the payee of promissory notes states to his nephew. 00; Kay v. Whittaker, 44 N. Y. 5G5, 572; Cheney v. Patton, 134 111. 122. 25 N. E. 792; Verden v. Slocum, 71 N. Y. 345. so McCorab v. Spangler, 71 Cal. 423, 12 Pac. 347; Goebel v. Iffla, 111 N. Y. 170. 177, 18 N. E. 649; Macloon v. Smith, 49 Wis. 200, 5 N. W. 336. 8i Gaylord v. City of Lafayette, 115 Ind. 423, 17 N. E. 899; Barnard v. Wilson, 74 Cal. 513, 16 Pac. 307. 82 Clarkson v. Skidmore, 46 N. Y. 301; Lithauer v. Royle, 17 N. J. Eq. 40. ss 2 Jones, Mortg. § 1709. s* 2 Jones, Mortg. § 1764. so id. § 1S27; Shillaber v. Robinson, 97 U. S. 68. Ch. 9] REAL-ESTATE MORTGAGES. 223 fore he cannot buy the property either in person or by an agent, unless authorized so to do by statute or by the power. 88 As in the case of a sale under a judicial decree, the purchaser acquires the mortgagor's title as it existed when the mortgage was executed and recorded, as well as any title subsequently acquired, 87 and any sur- plus arising from the sale must be accounted for to the persons hav- ing estates or interests in the land. 88 Concurrent Remedies. In addition to his right of foreclosure, the mortgagee may maintain an action at law against all persons liable for the mortgage debt, and he is entitled to recover the amount of principal, interest, and costs. 89 While all these remedies are concurrent, the mortgagee can- not retain more than the amount of his claim; and, if the personal judgment is satisfied, he must surrender the land. 90 SAME— REDEMPTION. 148. Any person who has an interest in the property subject to the mortgage may redeem. 149. Redemption can be made only from the mortgage debt in its entirety; and consequently, if the person re- deeming is not primarily liable for the debt, or liable for only a portion thereof, he is entitled to exoneration or contribution from the other persons liable. In the English system of mortgages, the equity of redemption sig- nifies the right of the mortgagor to pay the mortgage debt after de- fault, and thus regain possession of the premises. The usual method se Martinson v. Clower, 21 Ch. Div. 857; Ezzell v. Watson, 83 Ala. 120, 3 South. 309; Very v. Russell, 65 N. H. 646, 23 Atl. 522. 8T Doolittle v. Lewis, 7 Johns. Ch. 45; Sim v. Field, 66 Mo. 111. 88 2 Jones, Mortg. § 1929; Cook v. Basley, 123 Mass. 396; Buttrick v. Went- worth, 6 Allen, 79; Ballinger v. Bourland, 87 111. 513; Brown v. Crookston Agricultural Ass'n, 34 Minn. 545, 26 N. W. 907. 89 2 Jones, Mortg. § 1220; Lichty v. McMartin, 11 Kan. 565; Vansant v. A Union, 23 111. 30. »o Burnell v. Martin, 2 Doug. 417; 2 Jones, Mortg. § 1215. 224 PROPERTY IN EQUITY — MORTGAGES, LIENS, ETC. [Ch. 9 of redemption under this system is by a suit in equity, and in his bill the mortgagor tenders the amount due on the mortgage debt. A d< cree is then made compelling the mortgagee to reconvey. This method of redemption prevails in those states where the dual English system exists. 91 In most of the states, where the mortgage vests no title in the mortgagee, and does not entitle him to the possession, and where the mortgage is foreclosed by sale, statutes exist conferring on the mortgagor, and those claiming under him, the right to redeem by paying to the purchaser, within a specified time, — generally a year after the sale, — the amount of his bid, with interest. 92 This, of course, is a substantially different form of redemption from that ex- isting under the English system. All persons having an interest in the property subject to the mort- gage may redeem. 93 For example, judgment creditors of the mort- gagor, 94 and junior mortgagees, 95 may redeem, since they have liens on the property. The mortgagor's heirs may exercise the right, 96 and so may his grantee if the premises have been conveyed. The land must, however, be redeemed as a whole. Since the entire premises stand as security for the whole debt, the mortgagee need not accept payment in installments, and cannot be compelled to release a specific portion of the land from the lien of the mortgage. 97 si 2 Jones, Mortg. § 1093 et seq. 02 This right exists in Alabama, Arkansas, California, Colorado, Illinois, In- diana, Iowa, Minnesota, Missouri, Nevada, New Mexico, North Dakota, Ore- gon, South Dakota, Tennessee, and Washington. In Michigan the sale cannot take place until a year after the bill to foreclose is filed, and in Wisconsin not until a year after the decree. See 2 Jones, Mortg. § 1051, and notes. 93 Pearce v. Morris, 5 Ch. App. 229. »4 Willard v. Finnegan, 42 Minn. 470, 44 N. W. 9S5; Bozarth r. Largent, 12S 111. 95, 21 N. E. 218; Cramer v. Watson, 73 Ala. 127; Mallalieu v. Wick- ham, 42 N. J. Eq. 207, 10 Atl. 880. »5Twombly v. (assidy, 82 N. Y. 155; Gaskell v. Viquesney, 122 Ind. 244, 23 N. E. 791; Eewis v. Hinman, 5G Conn. 55, 13 Atl. 143. »« Alexander v. Hill, 88 Ala. 487, 7 South. 238; Hunter v. Dennis, 112 111. 5G8; Pym v. Bowreman, 3 Swanst. 241, note; Zaegel v. Kuster, 51 Wis. 31, 7 N. W. 781; Chew v. Hyman, 10 Biss. 240, 7 Fed. 7. 07 Meacham v. Steele, 03 111. 135; Lamb v. Montague, 112 Mass. 353; Spur- gin v. Adamson, 02 Iowa, GG1, 18 N. W. 293; Coffin v. Tarker, 127 N. Y. 117, ■21 S. E. 814. Ch. 9] REAL-ESTATE MORTGAGES. 225 Contribution and Exoneration. Of course, it frequently happens that one who has acquired only a portion of the mortgaged premises, or who is primarily liable for only a portion of the mortgage debt, wishes to redeem. He must pay the whole amount of the mortgage debt, or the whole amount bid at foreclosure sale, and then look to the others liable with him for exoneration or contribution, as the case may be. If the equities of the parties are in all respects equal, then the others must contribute ratably to the one who has effected the redemption. Thus, where tenants in common join in a mortgage on the entire estate, the ten- ant who redeems may compel contribution by his cotenant. 98 And so, where the mortgagor conveys the mortgaged premises by simul- taneous deeds to different persons, neither of whom assumes payment of the mortgage, the one redeeming may enforce contribution from the others." Where the equities of the parties are unequal, the one having the superior equity is entitled, not merely to contribution from, but to exoneration by, the one having the inferior equity. Thus, where a mortgagor conveys a portion of the mortgaged premises by a deed in which the grantee does not assume payment of the mortgage, the portion in the mortgagor's hands is primarily liable for the mort- gage debt; and, if the grantee redeems, he may enforce the entire mortgage against the portion of the premises still in the mortgagor's possession. 100 So, if the entire premises are conveyed at different times to different grantees, the maxim which applies is: Where the equities are equal, the first in order of time prevails; and hence the rule is that, as between the grantees, the parcels are liable in the inverse order of their alienation. 101 ss Chase v. Woodbury, 6 Cush. 143; Damm v. Damm, 91 Mich. 424, 51 N. W. 10G9; Aiken v. Gale, 37 N. H. 501. 99 Adams v. Smilie, 50 Vt. 1. ioo Cheever v. Fair, 5 Cal. 337; Hall v. Morgan, 79 Mo. 47; Sargeant v. Rowsey, S9 Mo. 617, 1 S. W. 823. The converse of this proposition is also true: If the mortgagor redeems, he cannot enforce contribution from the grantee. 2 Jones, Mortg. § 1091; Wallace v. Stevens, 64 Me. 225; Henderson v. Truitt, 95 Ind. 309. ioi National Sav. Bank v. Creswell, 100 U. S. 630; Moore v. Shurtleff, 128 111. 370, 21 N. E. 775; Clowes v. Dickinson, 5 Johns. Ch. 235, 240; Milligan'a Appeal, 104 Pa. St. 503; Worth v. Hill, 14 Wis. 559. EQ.JUR. — 15 226 PROPERTY IN EQUITY — MORTGAGES, LIENS, ETC. [Ch. 9 MORTGAGES AND PLEDGES OF PERSONALTY. 150. A chattel mortgage is a sale of personal property on condition that it shall be avoided by the performance of the condition, — usually the payment of a debt within a specified time. If the condition is broken, the title vests absolutely at law in the mortgagee. Equity, however, as in the case of mortgages on land, created a right of re- demption after default. 151. A pledge or pawn is a security created by the actual or constructive delivery of a personal chattel to a bailee or pledgee; the general property remaining in the pledgor, the pledgee having only a special property or right of retainer until the debt is paid. We have seen that, in the case of real-estate mortgages, the legal title to the land was originally regarded as vested in the mortgagee. We have also seen that many of the states have discarded this theory; and that a real-estate mortgage is regarded as merely a lien on the land. No similar departure has, however, been made in any of the states in regard to chattel mortgages, except in Cali- fornia and a few of the western states. 102 In all the other states of the Union, the mortgage vests the mortgagee with the legal title. 103 If there is a breach of condition by nonpayment of the debt at the time specified, the mortgagee's title becomes absolute by the old com- mon law. 104 In analogy to mortgages on land, equity vested the mortgagor with a right to redeem within a reasonable time after default. 108 To cut off this right of redemption, it is not necessary, 102 The Civil Code of California declares that a chattel mortgage creates merely a lien on the property mortgaged. Civil Code, § 2920 et seq. los The decisive test as to whether a chattel mortgage exists is whether the instrument is a conditional sale transferring the title. Jones, Chat Mortg. § 8; Oampbell v. Woodstock Iron Co., 83 Ala. 351, 3 South. 369. io4Taber v. Hamlin, 97 Mass. 489, per Foster, J.; Burtis v. Bradford, 122 Mass. 129; Jones, Chat Mortg. § 681. los Kemp v. Westbrook, 1 Yes. Sr. 278; Flanders v. Chamberlain, 24 Mich. 305, 315; Davis v. Hubbard, 38 Ala. 185, 189; Boyd v. Beaudin, 54 Wis. 193, 198, 11 N. W. 521. Ch. 9] EQUITABLE LIENS. 227 however, for the mortgagee to bring a foreclosure suit in equity, as in the case of real-estate mortgages. He can bar the equity of redemption by a public sale of the property, made on due notice, ■without any suit. 106 This distinction between the two classes of mortgages is similar to the distinction which equity makes in rela- tion to specific performance between real and personal property, viz. other chattels of the same kind and the same worth may be pur chased for the price bid at the public sale. 107 The right of fore- closure and redemption is now regulated in all states by statute. 103 The law of pledges falls under the head of bailment at common law rather than under any doctrine in equity, and is referred to here merely for the purpose of distinction from that applicable to chattel mortgages. To create a pledge, no transfer of the legal title is necessary, but there must be a transfer of the possession. The general title to the property remains in the pledgor, and the pledgee has only a special property or right of retainer until the debt is paid. 109 The pledgor has a right to redeem even at law at any time after default, and before a public sale of the pledged property by the pledgee. 110 EQUITABLE LIENS. 152. An equitable lien is a right to subject a particular fund or specific property to the satisfaction of a demand. It is a charge on the property, and not an estate or inter- est in the property. A lien at common law is defined as the right to retain possession of property belonging to another until a demand against him is sat io« Patchin v. Pierce, 12 Wend. 61, 63; Long Dock Co. v. Mallery, 12 N. J. Eq. 93; Denny v. Faulkner, 22 Kan. 89, 100; First Nat. Bank v. Darnrn, 63 Wis. 249, 23 N. W. 497; Broadhead v. McKay, 46 Ind. 595; In re Morritt, 18 Q. B. Div. 222. 107 Smith, Man. Eq. Jur.p. 339. los See Jones, Chat. Mortg. c. 18, where the statutes of the various states are collected. 109 Jones v. Smith, 2 Ves. Jr. 378; Walker v. Staples, 5 Allen, 34; Wright v. Ross, 36 Cal. 414. no Jones v. Smith, 2 Ves. Jr. 372, 378. 22S PROPERTY IN EQUITY MORTGAGES, LIENS, ETC. [Ch. 1> isfied." 1 Hence possession is necessary to the existence of a com- mon-law lieu. An equitable lien, on the contrary, is not dependent on the possession or retention of the property on which it is charged. "In courts of equity, the term 'lien' is used as synonymous with a charge or incumbrance upon a thing, where there is neither jus in re nor ad rem nor possession of the thing." 112 Prof. Poraeroy 113 as- cribes the origin of equitable liens to the fact that, in the great majority of cases, courts of law could confer only a pecuniary remedy for breach of contract, while courts of equity viewed contracts as (•renting a right in specific property; and equitable liens were intro- duced "for the sole purpose of furnishing a ground for the specific remedies which equity confers, operating on particular identified property, instead of the general pecuniary recoveries granted by courts of law." SAME— EQUITABLE MORTGAGES. 153. An equitable mortgage is a charge or lien on prop- erty created: (a) By an agreement to give a mortgage. (b) By the imperfect execution of a mortgage. (c) By a deposit of title deeds. (d.) By a formal mortgage of an estate recognized only in equity. 1. On the principle that what is agreed to be done is regarded in equity as done, an express agreement in writing to effect a mort- 111 Hammonds v. Barclay, 2 East, 227, 235, per Grose, J. 112 1 Beach, Eq. § 287; Peck v. Jenness, 7 How. 612, per Grier, J. "An equitable lien is not an estate or property in the thing itself, nor a right to recover the thing; that is, a right which may be the basis of a possessory action. It is neither a jus ad rem nor a jus in re. It is simply a right of a special nature over the thing, which constitutes a charge or incumbrance upon the thing, so that the very thing itself may be proceeded against in an equitable action, and either sold or sequestered under a judicial decree, and its proceeds, in the one case, or its rents and profits, in the other, applied upon the demand of the creditor in whose favor the lien exists." 3 Pom. Eq. Jur. § 1233. 113 3 Pom. Eq. Jur. § 1234. Ch. 9] EQUITABLE LIENS. 229 gage is treated as an equitable mortgage. 114 This principle applies with especial force to agreements to mortgage property to be acquired in the future. When the property is acquired, it stands charged with a lien, just as if a mortgage had been formally executed. 115 2. Equity regards substance, and not form; and, though a mort- gage is not executed with all the formalities required by law, equity will uphold it, if it appears that the parties intended to execute a mortgage on specified property to secure a certain debt. 118 3. In England, a deposit of title deeds by a debtor with his cred- itor constitutes an equitable mortgage, even though there is no written contract or memorandum stating why they were so depos- ited. The statute of frauds does not apply to a mortgage created by such deposit, since equity will not permit the statute to be made an instrument of fraud; and, holding that the deposit is conclusive evidence of an agreement under which one has advanced money on the faith of the deposit, it will not allow the depositor to set up the statute for the obvious purpose of swindling his creditor. 117 This form of mortgage, though very common in England, is practically obsolete with us. 118 4. In England, the doctrine that a mortgage vests the legal title in the mortgagee is pushed to its logical conclusion ; and it is there- fore held that all mortgages executed by the mortgagor after the "* Hall v. Hall, 50 Conn. 104; Read v. Simons' Adm'r, 2 Desaus. Eq. 552; In re Howe, 1 Paige, 125; Payne v. Wilson, 74 N. Y. 34S. us Holroyd v. Marshall, 10 H. L. Cas. 191; Chester v. Jumel, 125 N. Y. 237, 251, 26 N. E. 297; Taylor v. Huek, 65 Tex. 238; Powell v. Jones, 72 Ala. 392. us Payne v. Wilson, 74 N. Y. 348; Walton v. Cody, 1 Wis. 420; Dunraan v. Coleman, 59 Tex. 199; New Vienna Bank v. Johnson, 47 Ohio St. 306, 24 N. E. 503; New Orleans Nat. Banking Ass'n v. Adams, 109 U. S. 211, 3 Sup. Ct. 161; Bank of Muskingum v. Carpenter, 7 Ohio, 21. iit Russel v. Russel, 1 Brown, Ch. 269, 1 White & T. Lead. Cas. Eq. 931; Keys v. Williams, 3 Younge & C. 55. us Mortgages by deposit of title deeds have been recognized in some of the American states. Mounce v. Byars, 16 Ga. 469; Hackett v. Reynolds, 4 R. I. 512; Rockwell v. Hobby, 2 Sandf. Ch. 9; Griffin v. Griffin, 18 N. J. Eq. 104; Mowry v. Wood, 12 Wis. 413; Edwards' Ex'rs v. Trumbull, 50 Pa. St. 509; Bloom v. Noggle, 4 Ohio St. 45, 46. In others, the doctrine has been repudiated. Lehman v. Collins, 69 Ala. 127; Bicknell v. Bicknell, 31 Vt. 498; Gothard v. Flynn, 25 Miss. 58. 230 PROPERTY IN EQUITY MORTGAGES, LIENS, ETC. [Ch. 9 first are merely equitable mortgages, since he has nothing but an equity to mortgage. 119 This doctrine does not prevail in any of the states of the Union, and no distinction is made in this respect be- tween first and subsequent mortgages. SAME— LIENS BASED ON CONSIDERATIONS OF JUSTICE. 154. Not only -will equity enforce liens created by ex- press agreement of the parties, but it will create a lien whenever required by considerations of justice. 120 1. At common law, improvements made by an occupant of land in good faith, under the belief that he was the owner, passed, as part of the freehold, to the lawful owner when he recovered the premises in ejectment. 121 In all cases, however, where he brought an action in equity for an account of the rents and profits, the maxim, "He who seeks equity must do equity," was applied, and the value of the improvements was allowed to the occupant. 122 Courts of law subsequently adopted the same theory, and permitted the value of The improvements to be set. off in an action for the mesne profits. 123 The general rule, however, was that the claim for improvements could only be made use of by way of defense, and that the occupant could not himself come into equity and obtain affirmative relief, 12 * except where the legal owner knowingly stood by, and permitted the improvements to be made without objection. 125 This question is now regulated by statutes in the various states. 2. A tenant in common has an equitable lien on his cotenant's interest for useful and necessary repairs made by him to preserve «9 Smith, Prin. Eq. p. 285. "o 3 pom. Eq. Jur. §§ 1258, 1259. 121 McCoy v. Grandy, 3 Ohio St. 4G5, 40(5; Lunquest v. Ten Eyck, 40 Iowa, 213. 122 Bright v. Boyd, 1 Story, 478, Fed. Cas. No. 1,875; Green v. Biddle, 8 Wheat. 77; Putnam v. Ritchie, 6 Paige (N. Y.) 390, 404. 123 Murray v. Gouverneur, 2 Johns. Cas. 438, 441. 124 Neesom v. Clarkson, 4 Hare, 97; Thomas v. Evans, 105 N. Y. G01, 12 N. E. 571; Skiles* Appeal, 110 Pa. St. 218. 20 Atl. 722. 125 Pilling v. Armitage, 12 Vis. 78, S4; Miner v. Beekman, 50 N. Y. 337. Ch. 9] EQUITABLE LIENS. 231 the common property from decay and ruin ; 126 but for permanent improvements no lien exists, independent of contract, since the other cotenants might be deprived of their share in the property by the erection of improvements for which they are unable to pay. 1 " 3. A tenant for life, who is entitled to the possession for an indefi- nite period, is presumed to make improvements for his own personal enjoyment; and hence the remainder-man's interest should not be charged with a lien for such improvements, 128 except when the ten- ant for life completes such as have been begun by the person creat- ing the life estate. 12 * SAME— VENDOR'S LIEN. 155. Where a vendor delivers possession of an estate to a purchaser without receiving the purchase money, equity- gives the vendor a lien on the land for the unpaid pur- chase money, though there was no special agreement for that purpose. 130 There has been considerable diversity of opinion as to the origin of vendor's liens. By some writers, their origin is ascribed to the law of trusts, the purchaser being regarded as holding the title sub- ject to a trust for the payment of the purchase money. 131 Others regard the vendor's lien as an equitable mortgage, 132 and others as arising from the implied intention of the parties. 133 But in the 126 Lake v. Craddock, 3 P. Wins. 158; Haven v. Mehlgarten, 19 111. 95; Alexander v. Ellison, 79 Ky. 148. 127 Corbett v. Laurens, 5 Rich. Eq. (S. C.) 301; Carver v. Coffman, 109 Ind. 547, 10 N. E. 567. 128 Corbett v. Laurens, 5 Rich. Eq. (S. C.) 301, 315; Taylor v. Foster, 22 Ohio St. 255. 129 Dent v. Dent, 30 Beav. 3G3; Sohier v. Eldredge, 103 Mass. 345, 351. iso 2 Sugd. Vend. 671. 1312 Story, Eq. Jur. § 1218 et seq.; Snell, Eq. p. 142; Perry, Trusts, §§ 231, 232; Blackburn v. Gregson, 1 Brown, Ch. 420. 132 Adams, Eq. 127; Wilson v. Davisson, 2 Rob. (Va.) 384, 404. 133 in Kauffelt v. Bower, 7 Serg. & R. 64, 76, Chief Justice Gibson repudiates this view as follows: "The implication that there is an intention to reserve a lien for the purchase money in all cases where the parties do not by 232 PROPERTY IN EQUITY MORTGAGES, LIENS, ETC. [Ch. 9 earliest case on the subject, where the lien was allowed, 13 * it was grounded "on a natural equity that the land should stand charged with so much of the purchase money as was not paid, and that with- out any special agreement for the purpose." And more than a cen- tury later, in what is now regarded as the leading case on the sub- : ' Lord Eldon said: "Upon principle, without authority, I cannot doubt that it goes upon this: that a person having got the estate of another shall not, as between them, keep it, and not pay the consideration." Controlled by considerations such as these, vendor's liens have been recognized by the courts of Alabama, 138 Arkansas, 137 Cali- fornia. 138 Colorado, 139 District of Columbia, 140 Florida, 141 Illinois, 142 Indiana, 143 Iowa, 144 Kentucky, 145 Louisiana, 148 Maryland, 147 Michi- express acts evince a contrary intention is in almost every case inconsistent with the truth of the facts, and in all instances, without exception, in contra- diction of the express terms of the contract, which purports to be a conveyance of everything that can pass." In Ahrend v. Odiorne, 118 Mass. 2G1, Chief Justice Gray bases the doctrine on the fact that, by the law of England, real estate could not be taken in execution for debt, except to a limited extent, and that, therefore, the coiu't of chancery interfered in favor of the vendor. 134 Chapman v. Tanner (1684) 1 Vern. 267. 135 Mackreth v. Symmons (1808) 15 Ves. 329, 1 White & T. Lead. Cas. Eq. 447. 136 Woodall v. Kelly, 85 Ala. 3G8, 5 South. 1G4; Jones v. Lockard, 89 Ala. 575, 8 South. 103. is? Springfield & M. R. Co. v. Stewart, 51 Ark. 285, 10 S. W. 767. 138 Civil Code, § 3046; Avery v. Clark, 87 Cal. 619, 25 Pac. 919. 139 Francis v. Wells, 2 Colo. 660. 140 Ford v. Smith, 1 McArthur, 592. i4i Bradford v. Marvin, 2 Fla. 463. 142 Dyer v. Martin, 4 Scam. 146; Andrus v. Coleman, 82 111. 26; Gruhn v. Richardson, 128 111. 178, 21 N. E. 18. 143 Lagow v. Badollet, 1 Blackf. 416; Fouch v. Wilson, 60 Ind. 64; Brower v. Witmeyer, 121 Ind. 83, 22 N. E. 975. 144 Grapengether v. Fejervary, 9 Iowa, 163; Kendrick v. Eggleston, 56 Iowa, 128, 8 N. W. 786; Erickson v. Smith, 79 Iowa, 374, 44 N. W. 681. 145 Fowler v. Heirs of Rust, 2 A. K. Marsh. 294; Brown v. Ferrell, S3 Ky. 417. 146 Pedesclaux v. Legare, 32 La. Ann. 380. 147 pub. Gen. Laws 1S88, art. 16, § 93; Moreton v. Harrison, 1 Bland, 491; Ringgold v. Bryan, 3 Md. Ch. 488; Baltimore & L. T. Co. v. Moale, 71 Md. 355, 18 Atl. 658. Ch. 9] EQUITABLE LIENS. 233 gan, 148 Minnesota, 149 Mississippi, 180 Missouri, 161 New Jersey, 152 New York, 153 North, and South Dakota, 154 Ohio, 155 Oregon, 156 Khode Is- land, 157 Tennessee, 158 Texas, 159 and Wisconsin. 160 In Georgia, 161 Ver- mont, 162 Virginia, 163 and West Virginia 164 they have been abrogated by legislation; while in Kansas, 165 Maine, 166 Massachusetts, 167 Ne- braska, 168 North Carolina, 169 Pennsylvania, 170 and South Carolina 171 they have been rejected as opposed to public policy, which requires all matters affecting land titles to be made a matter of record. "8 Converse v. Blumrich, 14 Mich. 109; Richards v. Lumber Co., 74 Mich. 57, 41 N. W. 860. «9 Selby v. Stanley, 4 Minn. 65 (Gil. 34); Peters v. Tunell, 43 Minn. 473, 45 N. W. 867. iso Dunlap v. Burnett, 5 Secedes & M. 702; Lissa v. Posey, 64 Miss. 352, 1 South. 500. isi McKnight v. Brady, 2 Mo. 110; Christy v. McKee, 94 Mo. 241, 6 S. W. 656. 152 Vandoren v. Todd, 3 N. J. Eq. 397; Acton v. Waddington, 46 N. J. Eq. 16, 18 Atl. 356. 153 Champion v. Brown, 6 Johns. Ch. 398, 402; Chase v. Peck, 21 N. Y. 581 154 Civ. Code, § 1801. ins Tiernan v. Beam, 2 Ohio, 383; Anketel v. Converse, 17 Ohio St. 11. ice Gee v. McMillan, 14 Or. 268, 12 Pac. 417. 157 Kent v. Gerhard, 12 R. I. 92. iss Eskridge v. McClure, 2 Yerg. (Tenn.) 86; Cate v. Cate, 87 Tenn. 41, 9 S. W. 231. 159 Briscoe v. Bronaugh, 1 Tex. 326; White v. Downs, 40 Tex. 225; Howe v. Harding, 76 Tex. 17, 13 S. W. 41. iso Tobey v. McAllister, 9 Wis. 465; Evans v. Enloe, 70 Wis. 345, 34 N. W. 918, and 36 N. W. 22. lei Code 1882, § 1997. 162 Gen. St. 1862, c. 65, § 33. 163 Code 1873, c. 115, § 1. 164 Code 1870, c. 75, § 1. 165 Simpson v. Mundee, 3 Kan. 172; Greeno v. Barnard, 18 Kan. 578. 166 Philbrook v. Delano, 29 Me. 410, 415. 167 Ahrend v. Odiorne, 118 Mass. 261. 168 Edminster v. Higgins, 6 Neb. 265. 169 White v. Jones, 92 N. C. 388; Moore v. Ingram, 91 N. C. 376; Peck v. Culberson, 104 N. C. 426, 10 S. E. 511. 170 Kauffelt v. Bower, 7 Serg. & R. 64; Hiester v. Green, 48 Pa. St. 96; Strauss's Appeal, 49 Pa. St. 353. i7i Wragg v. Comptroller General, 2 Desaus. Eq. 509, 520. 204 PROPERTY IN EQUITY MORTGAGES, LIENS, ETC. [Ch. 9 A fixed and certain debt for the purchase price of land is essential to the existence of a vendor's lien. Hence, where there is a sale of both real and personal property for a gross sum, the vendor's lien does not exist, because the court cannot accurately ascertain and define the amount of the charge to be imposed on the land, and en- forced out of it. 1 " Hence, too, it has been held that if the consid- eration is something other than money, as an agreement to support the grantor during life, 173 or a specified quantity of cotton, 174 no lien exists. In the next place, the lien will be enforced as against the vendee and all persons claiming under him, except bona fide purchasers for value without notice. 175 A volunteer, therefore, takes subject to i he lien, though he had no notice; and so does a purchaser for value with notice. 178 By the weight of authority in the United States, a vendor's lien is not assignable, but is personal to the grantor himself, 177 though in England 178 and some of the states the rule is otherwise. 178 172 Erickson v. Smith, 79 Iowa, 374, 44 N. W. 681; Peters v. Tunell, 43 Minn. 473, 45 N. w. SG7; Alexander v. Hooks, 84 Ala. 605, 4 South. 417; Stringfellow v. Ivie, 73 Ala. 209, 214. its Peters v. Tunell, 43 Minn. 473, 45 N. W. 867. 174 Han-is v. Hanie, 37 Ark. 348. 175 Walker v. Preswick, 2 Ves. Sr. 622; Cator v. Earl of Pembroke, 1 Brown, Ch. 302; Christopher v. Christopher, 64 Md. 583, 3 Atl. 296; Crowe v. Colbeth, 63 Wis. 643, 24 N. W. 478; Graves v. Coutant, 31 N. J. Eq. 763; Edmonson v. Phillips, 73 Mo. 57. 176 Christopher v. Christopher, 64 Md. 583, 3 Atl. 296; Beal v. Harrington, 116 111. 113, 4 N. E. 664. 177 First Nat. Bank of Salem v. Salem Capital Flour-Mills Co., 39 Fed. 89, 95; Carlton v. Buckner, 28 Ark. 66; Crossland v. Powers (Ark.) 13 S. W. 722; Gruhn v. Richardson, 12S 111. 178, 21 N. E. 18; Payne v. Nowell, 41 La. Ann. S52, 6 South. 636; Dixon v. Dixon, 1 Md. Ch. 220; Hammond v. Peyton, 34 Minn. 529, 27 N. W. 72; White v. Williams, 1 Paige, 502; Ogle v. Ogle, 41 Ohio St 359; Burkhardt v. Howard, 14 Or. 39, 12 Pac. 79. 178 Dryden v. Frost, 3 Mylne & C. 670. 179 Wilkinson v. May, 69 Ala. 33; Jones v. Lockard, S9 Ala. 575, 8 South. 103; Lowry v. Smith, 97 Ind. 466; Honore's Ex'r v. Bakewell, 6 B. Mon. 67; Louisiana Nat. Bank v. Knapp, 61 Miss. 485; Sloan v. Campbell, 71 Mo. 3S7; De Bruhl v. Maas, 54 Tex. 464. Ch. 9] EQUITABLE LIENS. 235 Waiver of Lien. The fact that the conveyance recites payment of the considera- tion, or that a receipt for it is indorsed thereon, does not defeat the lien, if in reality the purchase price is unpaid. 180 Nor is the mere circumstance that the vendor has taken personal security from the vendee, such as a bond, bill, or note, conclusive on the vendors in- tention to abandon the lien. To have this effect, the bond, note, or bill must in fact be the very consideration for which the land was sold, and not a mere evidence of indebtedness. If the bond, bill, or note was in fact substituted for the consideration money, and was the very thing bargained for, the lien does not exist. 181 So, also, the lien will be deemed waived if the vendor takes independent and collateral security for the purchase price, such as the note of a third person, 182 or a mortgage on land. 188 Express Reservation of Lien. In the foregoing classes of cases, the lien has been raised by courts of equity without any agreement by the parties as to its existence. It has, however, become the custom in some of the states to ex- pressly reserve, in the deed conveying the land, a lien as security for the unpaid purchase money. Such a lien much more nearly resembles a purchase-money mortgage than the implied equitable vendor's lien, 184 and is recognized and enforced in some of the states where that lien is abrogated, since it is a matter of record. 185 i8o Mackreth v. Symmons, 15 Ves. 329, 1 White & T. Lead. Cas. Eq. 447; Ogden v. Thornton, 30 N. J. Eq. 569; Bankhead v. Owen, 60 Ala. 457; Hol- man v. Patterson, 29 Ark. 357; Walton v. Hargroves, 42 Miss. 18; Thompson v. Corrie, 57 Md. 197. isi Mackreth v. Symmons, 15 Ves. 329, 1 White & T. Lead. Cas. Eq. 447; Frail v. Ellis, 16 Beav. 350; Kent v. Gerhard, 12 R. I. 92; Madden v. Barnes, 45 Wis. 135; Dance v. Dance, 56 Md. 435; Lavender v. Abbott, 30 Ark. 172. 182 Vail v. Foster, 4 N. Y. 312; Durette v. Briggs, 47 Mo. 356; Walker v. Struve, 70 Ala. 167; Christy v. McKee, 94 Mo. 241, 6 S. W. 656; Springfield & M. R. Co. v. Stewart, 51 Ark. 285, 10 S. W. 767. 183 Nairn v. Prowse, 6 Ves. 752; Bond v. Kent, 2 Vern. 281; Land Co. v. Peck, 112 111. 408, 451; Walker v. Struve, 70 Ala. 167; Orrick v. Durham, 79 Mo. 174; Tinsley v. Tinsley, 52 Iowa, 14, 2 N. W. 528. 184 King v. Young Men's Ass'n, 1 Woods, 3S6, Fed. Cas. No. 7,811; Kirk v. Williams. 24 Fed. 437; Bank v. Bradley, 15 Lea, 279; Collins v. Richart, 14 Bush, 621; Eichelberger v. Gitt, 104 Pa. St. 64; Talieferro v. Burnett, 37 Ark. 511. 185 Hiester v. Green, 48 Pa. St. 96; Yancey v. Mauck, 15 Grat. 300. 236 PROPERTY IN EQUITY — MORTGAGES, LIENS, ETC. [Ch. 9 >r's Lien under Contract of Stile. It is sometimes said that a vendor under a contract of sale, who places his vendee in possession without executing or delivering a deed, has a lien on the land for the unpaid purchase price. This, however, is a misnomer. The legal title remains in the vendor; and, while the vendee is regarded as the owner in the eye of a court of equity, yet the vendor will be permitted to retain the legal title as security for the unpaid purchase money. 186 The vendor has also the right to foreclose the contract, and thus cut off all rights there- under, unless the purchase price is paid within a specified time. SAME— VENDEE'S LIEN. 156. A vendee under a land contract who prematurely pays the purchase money, or any part of it, has a lien therefor on the land contracted to be sold, if, by reason of the vendor's default, the contract is not performed. This lien is in all respects analogous to the vendor's lien for the unpaid purchase money. The legal title remains in the vendor, but the vendee has a lien on the land as security for the purchase money he has paid. 187 Such a lien generally arises where a, deposit has been made by the purchaser, and the title turns out to be defective, or for some other reason the sale is not completed. SAME— CHARGES OF DEBTS AND LEGACIES. 157. An equitable lien on land is created where it is de- vised subject to or charged with the payment of testator's debts and legacies. iseLysaffht v. Edwards, 2 Ch. Div. 499, 506, 507; Shaw v. Foster, L. R. 5 H. L. 321; Robinson v. Appleton, 124 111. 276, 15 N. E. 761; Sykes v. Betts, 87 Ala. 537, 6 South. 428; Church v. Smith, 39 Wis. 492; Ransom v. Brown, 63 Tex. 1S8; Wells v. Smith, 44 Miss. 296; White v. Blakemore, 8 Lea, 49. 187 Wythes v. Lee, 3 Drew, 396; Torrance v. Bolton, L. R. 14 Eq. 124, 8 Ch. App. 118; Stewart v. Wood, 63 Mo. 252; Cooper v. Merritt, 30 Ark. 686; Wickman v. Robinson, 14 Wis. 493. Ch. 9] EQUITABLE LIENS. 237 The personal property of a deceased person is the primary fund for the payment of debts, and the exclusive fund, as between lega- tees and devisees, for the payment of legacies. 188 To overcome this rule of law, an intention by testator to subject the land to liability must appear. Such intention may be manifested by express direc- tion to pay the debts and legacies out of the lands devised, 189 or it may be implied from the provisions of the will as a whole and the circumstances surrounding its execution. 190 The rule in England and in some of the courts of this country is that if testator gives a legacy, and then makes a general residuary disposition of the whole estate, blending the realty and the personalty together in one fund, the vendor's real estate will be charged with the legacies, as well as the personal. 191 But a legacy charged by general words on tes- tator's real estate is not a lien on land specifically devised. 192 While a charge of debts and legacies on the land creates a lien, the primary liability of the personalty is not thereby exonerated, but testator's intention to exonerate must expressly or by clear im- plication appear. 193 Hence, as a rule, the creditor or legatee has three remedies for enforcing a debt or legacy charged on the land: 188 Duke of Ancaster v. Mayer, 1 Brown, Ch. 454, 1 White & T. Lead. Cas. Eq. 8S1; Kitchell v. Young, 46 N. J. Eq. 506, 19 Atl. 729; Newsom v. Thornton, 82 Ala. 402, 8 South. 261; Appeal of Mann (Pa. Sup.) 14 Atl. 270; Davidson v. Coon, 125 Ind. 497, 25 N. E. 601; Allen v. Patton, 83 Va. 255, 2 S. E. 143. 189 Pom. Eq. Jur. § 1246. A mere general direction does not create a charge on the realty. Harmon v. Smith, 38 Fed. 482; In re City of Rochester, 110 N. Y. 165, 17 N. E. 740. i»o Stevens v. Flower, 46 N. J. Eq. 340, 19 Atl. 777; Duncan v. Wallace, 114 Ind. 169, 170, 16 N. E. 137. i9i Greville v. Browne, 7 H. L. Cas. 689; Stevens v. Flower, 46 N. J. Eq. 340, 19 Atl. 777; Smith v. Fellows, 131 Mass. 20; Davis' Appeal, 83 Pa. St. 348; Hutchinson v. Gilbert, 86 Tenn. 464, 469, 7 S. W. 126; Lewis v. Darling, 16 How. 1; Lafferty v. People's Sav. Bank, 76 Mich. 35, 43 N. W. 34; Atmore v. Walker, 46 Fed. 429; Lapham v. Clapp, 10 R. I. 543; Jaudon v. Ducker. 27 S. C. 295, 3 S. E. 465. This rule does not prevail in New York. Brill v. Wright, 112 N. Y. 129, 19 N. E. 628; Briggs v. Carroll, 117 N. Y. 2SS, 22 N. E. 1054; Hoyt v. Hoyt, 85 N. Y. 142. 192 Robinson v. Mclver, 63 N. C. 645; Davenport v. Sargent, 63 N. H. 53S, 4 Atl. 569; Spong v. Spong, 3 Bligh (N. S.) 84. 193 Tower v. Lord Rous, 18 Ves. 132, 138; Chapin v. Waters, 116 Mass. 140, 146; Cooch's Ex'r v. Cooch's Adm'r, 5 Houst. (Del.) 540, 569; Hanson v. Han- son, 70 Me. 508, 511; Kirkpatrick v. Rogers, 7 Ired. Eq. 44. 238 PROPERTY IN EQUITY MORTGAGES, LIENS, ETC. [Ch. 9 II' may either enforce payment from the executor in the usual course of administration, or he may foreclose the lien against the land, or, if the devise has been made conditional on paying the debt or legacy, he may maintain a common-law action against the devisee on the promise to pay, implied from the acceptance of the devise. 19 * ASSIGNMENTS. 158. An assignment is a transfer or making over to another of the -whole of any property, real or personal, in possession or in action, or of any estate or right therein. 195 The term includes the act of transfer, as well as the in- strument by which it is effected. 196 159. Though anciently assignments of possibilities and choses in action were not permitted at common law, the validity of such assignments was recognized from a very early period in equity, and they were enforced by courts of equity whenever made for a valuable consideration. The reason for the common-law rule was thus expressed by Lord Coke: ''The great wisdom and policy of the sages and founders of our law have provided that no possibility, right, title, or thing in action shall be granted or assigned to strangers; for that would be the occasion of multiplying contentions and suits, of great oppression of the people, and the subversion of the due and equal execution of justice." 19T Sir Frederick Pollock, however, asserts that the com- mon-law rule was "a logical consequence of the primitive view of contract as creating a strictly personal obligation between the cred- itor and the debtor." 108 is* Brown v. Knapps, 79 N. Y. 136; Lord v. Lord, 22 Conn. 595, 602. 193 Bouv. Law Diet. tit. "Assignment." 196 Burrill, Assignm. § 1. 197 Lampet's Case, 10 Coke, 48. 198 Poll. Cont p. 196. Many of the later writers on equity jurisprudence have denounced the common law as barbarous in this respect; and so it undoubtedly is when viewed in the light of modern social conditions. But substantial reasons of public policy were probably at the foundation of the Ch. 9] ASSIGNMENTS. 239 The necessities of commerce long ago effected a modification of the common-law principle. Thus, bills of exchange became assign- able by custom, and promissory notes were made so by statute. 199 Further than this, in the course of time, courts of law came to rec- ognize the assignee's rights in choses in action, so far as to permit him to sue in the assignee's name, 200 and equitable interference thus became unnecessary in this class of cases. 201 Finally, the judicature act in England renders an absolute assignment of a legal chose in action effectual at law, and the assignee may sue thereon in his own name. 202 So, in all the American states where the reformed pro- cedure prevails, the real party in interest, which, of course, includes an assignee, is required to sue in his own name. SAME— WHAT ASSIGNMENTS NOW RECOGNIZED AT LAW. 160. To determine whether any cause of action is as- signable at law, the following rule has been formulated: If the cause of action survives, and passes to the personal rule. In the middle ages, in addition to the temporal courts, there existed ecclesiastical or spiritual tribunals. "The cleric, whether plaintiff or de- fendant, was entitled in civil cases to be heard before the spiritual courts. which were naturally partial in his favor, even where not venal, so that jus- tice was scarce to be obtained. That such in fact was the experience is shown by the practice which grew up of clerks purchasing doubtful claims from lay- men, and then enforcing them before the Courts Christian,— a speculative pro- ceeding, forbidden, indeed, by the councils, but too profitable to be suppressed." Lea, History of the Inquisition, p. 34. Such a practice would justify Lord Coke's language in relation to assignments, as tending to "the great oppression of the people, and the subversion of the due and equal execution of justice." ie» 3 & 4 Anne, c. 9, p. 106; 7 Anne, c. 25. 200 De Pothonies v. De Mattos, El., Bl. & El. 467; Master v. Miller, 4 Term. R. 320, 340, 341 ; Johnson v. Bloodgood, 1 Johns. Cas. 51. 201 Hammond v. Messenger, 9 Sim. 327; Keys v. Williams, 3 Younge & C. Ex. 462, 466, 467. The mere fact that an assignee of a legal cause of action cannot sue in his own name at law does not warrant a court of equity in taking jurisdiction. Walker v. Brooks, 125 Mass. 241; Hay ward v. Andrews, 106 U. S. 672, 675, 1 Sup. Ct. 544; Hagar v. Buck, 44 Vt. 2S5, 290. 202 3G & 37 Vict. c. 66, § 25, subsec. 6. 240 PROPERTY IN EQUITY MORTGAGES, LIENS, ETC. [Ch. 9 representatives of a decedent as assets, or continues as lia- bilities against his representatives, it is assignable; other- wise not.* 13 Applying this rule, contracts and rights of action for their breach are assignable, excepting contracts of a personal nature, involving personal trust or confidence. 204 Thus, a contract calling for per- sonal services, requiring special skill or knowledge of the contract- ing party, dies with the party, and is not assignable; 205 and so with a right of action for breach of marriage promise. 208 With respect to torts, the general rule is that a right of action for a wrong done to the property of another, real or personal, will survive; but a right of action for a wrong to the person or feelings of another does not survive, and is not assignable. 207 Thus, a right of action for injury to laDd or personal property is assignable; 208 and so with a claim for damages to property caused by fraud or deceit, 209 though it is otherwise if only personal relations are affected. 210 The statutory right of action for wrongfully killing a person is regarded, as assets of his estate, and is therefore assignable, 211 but a cause of action for a personal injury not causing death, 212 or for false imprisonment, 213 is not assignable. 203 Pom. Rein. § 147 et seq.; Brackett v. Griswold, 103 N. Y. 425, 428, 9 N. E. 43S; Stewart v. Houston & T. C. Ry. Co., 62 Tex. 246; Dayton v. Fargo, 45 Mich. 153, 7 N. W. 158. 204 pom. Rem. § 147; Bliss, Code PI. § 47. 205 Devlin v. Mayor, etc., 63 N. Y. 9; Shnltz v. Johnson, 5 B. Mon. 497. 206 Chamberlain v. Williamson, 2 Maule & S. 40S; Lattimore v. Simmons, 13 Serg. & R. 183; Stebbins v. Palmer, 1 Pick. 71; Smith v. Sherman, 4 Cush. 408. 207 People v. Tioga Common Pleas, 19 Wend. 73; Corhegys v. Vasse, IP. 213; Tyson v. McGuineas, 25 Wis. 656; Byxbie v. Wood, 24 N. Y. 607; Zabriskie v. Smith, 13 N. Y. 322. Bliss, Code PI. § 38. 203 McKee v. Judd, 12 N. Y. 622; Chonteau v. Boughton, 100 Mo. 406, 13 S. W. 877; Lazard v. Wheeler, 22 Cal. 139; Tyson v. McGuineas, 25 Wis. 656. 200 Haight v. Hayt, 19 N. Y. 464; Byxbie v. Wood, 24 N. Y. 607. 210 Higgins v. Breen, 9 Mo. 497. 2ii Quin v. Moore, 15 N. Y. 432. 212 Purple v. Hudson River R. Co., 4 Duer, 74; Rice v. Stone, 1 Allen (Mass.) 566. 213 Noonan v. Orton, 34 Wis. 259. Ch. 9] ASSIGNMENTS. 241 In this connection it should be stated that certain assignments are void, both at law and in equity, on grounds of public policy. In this class are included assignments which partake of the nature of champerty and maintenance. 214 So, in England, the salaries of pub- lic officers cannot be assigned, on the theory that they are given to maintain the dignity of their offices, and to secure the proper dis- charge of the duties thereof. 215 In several recent American cases it has also been held that an assignment of the salary of a public officer not yet due is void. 216 By act of congress, pensions are also not assignable. 217 In many of the states special statutes have been passed, denning what choses in action may be assigned. Thus, in New York any claim or demand may be transferred, except for personal injury or breach of promise to marry, or founded on a grant void by statute, or where the transfer is forbidden by statute or is contrary to pub- lic policy. 218 SAME— EQUITABLE ASSIGNMENTS. 161. An assignment of a mere possibility or expectancy ■will be enforced in equity whenever the possibility or ex- pectancy becomes a vested interest or possession. 219 162. An order made payable out of a particular fund then due or to become due from the drawee to the drawer operates as an equitable assignment of the fund to the payee. 214 Bradlaugh v. Newdegate, 11 Q. B. Div. 1; Dorwin v. Smith, 35 Vt. 69; Thurston v. Percival, 1 Pick. 415; Coquillard's Adm'r v. Bears, 21 Ind. 479; Martin v. Veeder, 20 Wis. 466. 215 Davis v. Duke of Marlborough, 1 Swanst. 74; Arbuthnot v. Norton, 5 Moore, P. C. 219; Wells v. Foster, 8 Mees. & W. 149. 2ie Bliss v. Lawrence, 58 N. Y. 442; Township of Wayne v. Cahill, 49 N. J. Law, 144, 148, 6 Atl. 621; Field v. Chipley, 79 Ky. 2G0; Bangs v. Dunn, 66 Cal. 72, 4 Pac. 963; Schloss v. Hewlett, 81 Ala. 266, 1 South. 263; Shannon v. Bruner, 36 Fed. 147; Clark, Cont. 419. 217 Act Feb. 28, 1883. 218 Code Civ. Proc. N. Y. § 1910. 2i8 3 Pom. Eq. Jur. § 1287. eq jur,— 16 242 PROPERTY IN EQUITY MORTGAGES, LIENS, ETC. [Cll. 9 mments of PossibM Even after courts of law recognized the validity of assignments of choses in action, the assignment of possibilities or expectancies was enforced only in equity. Thus, the assignment of a vested remain- der made by the remainder-man during the lifetime of the life ten- ant, being of a mere possibility, though not good at law, was held valid in equity. 220 Recent statutes in England authorize the assign- ment at law of contingent, executory, and future possibilities when coupled with an interest in real estate; 221 and even broader stat- utes have been enacted in some of the states authorizing the assign- ment at law of possibilities coupled with an interest in either real or personal property. 222 These statutes leave untouched the assign- ment of possibilities or expectancies not coupled with an interest, and hence such an assignment is still enforced only in equity. Thus, nonexistent property, or property to be acquired at a future time, is assignable in equity; 223 such as the future cargo of a ship, 224 or future patent rights. 226 To render such assignment effective, how- ever, there must be no uncertainty as to the property intended to pass; 22e and words imputing a present transfer of property must be employed, as distinguished from a mere power to deal with the prop- 220 Warmstrey v. Tanfield, 1 Ch. 29, 2 White & T. Lead. Cas. Eq. 729. Other assignment of expectancies held valid in equity: Of heirs at law, Hobson v. Trevor, 2 P. Wins. 191; of next of kin of living person, Hinde v. Blake, 3 Reav. 235: of interest which a person expects under the will of a living person, Beckloy v. Newland, 2 P. Wms. 182; of share to which a person may become entitled under an appointment, Musprat v. Gordon, 1 Anst. 34. 221 8 & 9 Vict. c. 106, § 6. 222 l Rev. St. N. Y. p. 725, § 35; Civ. Code Cal. §§ 693, 699, 700, 1045, 1046. 22s Holroyd v. Marshall. 10 H. L. Cas. 191; Mitchell v. Winslow, 2 Story, 630, Fed. Cas. No. 9,673; Patterson v. Caldwell, 124 Pa. St. 455, 17 Atl. 18; Jones v. Mayor, etc., 90 N. Y. 387; Kimball v. Gafford, 78 Iowa, 65, 42 N. W. 583. The same principle applies to mortgages of property to be acquired in the future. Rutherford v. Stewart, 79 Mo. 216; Ludlum v. Rothschild, 41 Minn. 219, 43 N. W. 137. 224 Lindsay v. Gibbs, 22 Beav. 522; Mitchell v. Winslow, 2 Story, 630, Fed. Cas. No. 9,673. 225 Printing & Numerical R. Co. v. Sampson, L. R. 19 Eq. 462. Contra, Regan Vapor-Engine Co. v. Pacific Gas-Engine Co., 1 C. C. A. 169, 49 Fed. 68. 226 Tadman v. D'Epineuil, 20 Ch. Div. 75S. Ch. 9] ASSIGNMENTS. 243 erty when it is acquired. 227 On the same principle, it has been held that future wages, to be earned under a subsisting contract of em- ployment, are assignable; 228 but as to whether such an assignment is valid when there is no subsisting contract the authorities vary. 229 Order on Specific Fund. The principle that an order drawn against a particular fund operates as an assignment was announced in the leading case of Kow v. Dawson. 230 To become effective as an assignment, the order must make an appropriation of the fund. 231 An order drawn generally on the drawee, payable in the first instance on the credit of the drawer, and without regard to the source from which the money used for its payment is obtained, does not operate as an assignment, though the drawer designates a particular fund out of which the drawee is subsequently to reimburse himself for the payment, or a particular account to which it is to be charged. 232 An ordinary draft, not drawn on any particular fund, does not operate as an as- signment ; 233 and by the weight of authority a check is on the same footing. 234 227 Reeve v. Whitmore, 4 De Gex, J. & S. 1, 1G-18. 228 Emery v. Lawrence, 8 Cush. 151; Hartley v. Tapley, 2 Gray, 565; Field v. Mayor, etc., 6 N. Y. 179; Appeal of Riddlesburg Coal & Iron Co., 114 Pa. St. 58, 6 Atl. 381; Haynes v. Thompson, 80 Me. 125, 13 Atl. 276. 229 Held assignable in Edwards v. Peterson, 80 Me. 367, 14 Atl. 936; Contra, Lehigh Val. R. Co. v. Woodring, 116 Pa. St. 513, 9 Atl. 58; Mullhall v. Quinn, 1 Gray, 105. 230 i Ves. Sr. 331, 2 White & T. Lead. Cas. Eq. 731. 231 Laclede Bank v. Schuler, 120 U. S. 511, 516, 7 Sup. Ct. 644. 232 Brill v. Tuttle, 81 N. Y. 454, 457. See, also, Ex parte Carruthers, 3 De Gex & S. 570; Kelley v. Mayor, etc., of Brooklyn, 4 Hill, 265. 233 Shand v. Du Buisson, L. R. 18 Eq. 283; Kimball v. Donald, 20 Mo. 577; First Nat. Bank v. Dubuque S. W. Ry. Co., 52 Iowa, 378, 3 N. W. 395; Hol- brook v. Payne, 151 Mass. 3S3, 24 N. E. 210; Cash man v. Harrison, 90 Cal. 297, 27 Pac. 283; Manderville v. Welch, 5 Wheat. 277; Grammel v. Carmer, 55 Mich. 201, 21 N. W. 418. 234 Hopkinson v. Forster, L. R. 19 Eq. 74: Attorney General v. Continental Life Ins. Co., 71 N. Y. 325; O'Connor v. Mechanics' Bank, 124 N. Y. 324, 26 N. E. 816; Florence Min. Co. v. Brown, 124 U. S. 385, 8 Sup. Ct. 531; Harri- son v. Wright, 100 Ind. 515; National Bank of America v. Indiana Banking Co., 114 HI. 4S3, 2 N. E. 401; Hemphill v. Yerkes, 132 Pa. St. 545, 19 Atl. 342; Pease v. Landauer, 63 Wis. 20, 22 N. W. 847. 244 PROPERTY IN EQUITY — MORTGAGES, LIENS, ETC. [Ch. 9 Any winds, however, which show an intention to appropriate the fund to the payee arc, if supported by a valuable consideration, suf- ficient to effect a valid assignment. Writing is not necessary if there is clear proof of an oral charge. 235 The assignment, however, is not complete until it has been com- municated to the intended assignee. Thus, a mere mandate from a principal to his agent to pay a debt out of a certain fund gives the creditor no specific charge on that fund. 236 Until such mandate is communicated to the creditor, and assented to by him, it may be revoked; 237 but, after such communication the agent becomes the debtor of the assignee, and the order cannot then be counter- manded. 238 Notice, When Necessary. An equitable assignment is complete, as between assignor and assignee, though no notice thereof is given to the depositary or holder of the fund ; 239 nor is notice necessary as against a person standing in the same position as the assignor; for instance, a volunteer, 240 or attaching creditor. 241 To bind the holder of the fund, however, notice is necessary. If none is given, the holder may discharge himself by paying the as- signor. 242 Indeed, the practical distinction between an eauirnble assignment of a fund and an order or draft not amounting to such assignment seems to be that notice will fix the liability of the drawee in case of assignment, but acceptance is necessary to charge him on a draft 235 Official Receiver v. Tailby. 18 Q. B. Div. 25. zse Morroll v. Wootten, in Reav. 197; White v. Colemnn. 127 Mass. 34. 237 Scott y. Rorcher. 3 Mor. 652. 238 Fitzgerald v. Stewart, 2 Russ. & M. 457. 239 Jones v. Gibbons, 9 Ves. 410; Cook v. Black, 1 Hare, 390; Williams v. Insersoll, 89 N. Y. 508 240 Justice v. Wynne, 12 Ir. Ch. 289. 241 Pickering v. Ilfracombe Ry. Co., L. R. 3 C. P. 235; Williams v. Inger- soll, 89 N. Y. 508; Dix v. Cobb, 4 Mass. 508. 242 Xorrish v. Marshall, 5 Matld. 475; Switzer v. Noffsinger, 82 Va. 518, 521; Van Keuren v. Corkins, G6 JM. Y. 77; Laclede Bank v. Schuler, 120 U. S. 511, 7 Sup. Ct G44; Renton v. Monnier, 77 Cal. 449, 19 Pac. 820. See, also, Dale v. Kimpton, 4C> Vt. 7U; McWilliams v. Webb, 32 Iowa, 577. Ch. 9] ASSIGNMENTS. 245 Again, if the assignor makes a subsequent assignment, the gen- eral rule is that the second assignee gains priority by giving notice before the first does. 243 The principle is the same as that which requires the assignor of a personal chattel to take every step in his power to reduce it into possession; and, in case of his neglect, post- pones him to a subsequent assignee for value who takes without notice. Of the two parties one must suffer; and equity will not assist the one prior in time if, by his negligence, the possessor has been enabled to deceive the second assignee. This rule has, how- ever, been rejected in some states, and the first assignee is protected, though he gave no notice. 244 SAME— ASSIGNMENT SUBJECT TO EQUITIES. 163. An assignee of a chose in action takes it subject to all equities existing against the assignor, except in the case of negotiable paper. 245 "A purchaser of a chose in action must always abide by the case of the person from whom he buys." 246 Thus, if the assigned debt is subject to a set-off, the assignee is liable to the set-off; 247 if the debt is payable only on condition, the condition is binding on the assignee; 248 and the assignee of a mortgage takes it subject to all 243 Dearie v. Hall, 3 Russ. 1, 30, 4S; Brice v. Bannister, 3\Q. B. Div. 569; Spain v. Hamilton. 1 Wall. 604, 624; Murdoch v. Finney, 21 Mo. v 138. 244 Thayer v. Daniels, 113 Mass. 129; Fairbanks v. Sargent, 164 N. Y. 108, 9 N. E. 870; Kennedy v. Parke, 17 N. J. Eq. 415. These decisions are supported by the principle that an assignee of a chose in action takes subject to all eq- uities. 245 Callahan v. Edwards, 32 N. Y. 483, 486; Fairbanks v. Sargent, 104 N. Y. 116, 9 N. E. 108; Friedlander v. Texas & P. Ry. Co., 130 U. S. 416, 9 Sup. Ct. 570; East Birmingham Land Co, v. Dennis, 85 Ala. 565, 5 South. 317; Jeffries v. Evans, 6 B. Mon. 119; Kamena v. Huelbig, 23 N. J. Eq. 7S. 246 p e r Lord Thurlow, in Davies v. Austen, 1 Ves. Jr. 247. 247 Ex parte Mackenzie, L. R. 7 Eq. 240; Cavendish v. Geaves, 24 Beav. 163, 173; Loomis v. Loomis, 26 Vt. 198; Rider v. Johnson, 20 Pa. St. 190; McKen- na v. Kirk wood, 50 Mich. 544, 15 N. W. 898; Fairbanks v. Sargent, 104 N. Y. 116, 9 N. E. 108; Goldthwaite v. National Bank, 67 Ala. 549; Baker v. Kins- ley, 41 Ohio St. 403. 248 Tooth v. Hallett, 4 Ch. App. 242; Western Bank v. Sherwood, 29 Barb. 383. 246 PROPERTY IN EQUITY — MORTGAGES, LIENS, ETC. [Ch. 9 defenses which the mortgagor had against the mortgagee. 249 These cases illustrate the application of the rule as between the debtor and the assignee Does it also apply as between an assignor who makes an assignment for a special purpose, and a subsequent as- signee to whom the first assignee has assumed to transfer the com- plete title? In the leading case of Bush v. Lathrop 250 it was held that the second assignee stands in the shoes of the first; and that hence, where a mortgagee assigns a mortgage as security for a much smaller sum than the mortgage debt, and the assignee transfers the mortgage for its full face value to a purchaser without notice, the mortgagee may compel a return of the mortgage by payment of the amount secured, and not the face of the mortgage or the sum paid by the purchaser. 251 In the case of corporate stock, however, which is of a quasi negotiable character, the rule is that a stockholder who clothes another with the apparent title is estopped to assert his rights as against a bona fide purchaser from the assignee for value and without notice. 252 In the case of negotiable paper, custom and statutes have com- bined to render the title of a bona fide purchaser for value before maturity perfect, as against the maker, whatever defenses the latter may have had against the payee. 253 249 Hill v. Hoole, 116 N. Y. 299, 302, 22 N. E. 547; Bennett v. Bates, 94 N. Y. 354, 3G3; Theyken v. Howe Mach. Co.. 109 Pa. St. 95; Tabor v. Foy, 56 Iowa, 539, 9 N. W. 897. Though the mortgage is given to secure a negotiable note, the fact that the note, as well as the mortgage, is assigned to a bona fide pur- chaser before maturity, does not enable the assignee to take a mortgage dis- charged of equities in favor of the mortgagor. Scott v. Magloughlin, 133 111. 33, 24 N. E. 1030; Redin v. Bi-anhan, 43 Minn. 283, 45 N. W. 445; Woodruff v. Morristown Inst., 34 N. J. Eq. 174. Contra, Taylor v. Page, 6 Allen, 86; Spence v. Mobile & M. R. Co., 79 Ala. 576; Cooper v. Smith, 75 Mich. 247, 42 N. W. 815; Cornell v. Hichins, 11 Wis. 353. 250 22 N. Y. 535. 251 The same principle was applied in Davis v. Bechstein, 69 N. Y. 440, 442; Schafer v. Reilly, 50 N. Y. 61; Trustees of Union College v. Wheeler, 61 N. Y. 88; Fairbanks v. Sargent, 104 N. Y. 117, 9 N. E. 870. 252 McNeil v. Tenth Nat. Bank, 46 N. Y. 325; Bangor Electric Light & Power Co. v. Robinson, 52 Fed. 520. 253 Ex parte City Bank, 3 Ch. App. 758. Oil. 10] EQUITABLE REMEDIES. 24^i CHAPTER X. EQUITABLE REMEDIES— ACCOUNTING— CONTRIBUTION— EXONER- ATION— SUBROGATION AND MARSHALING. 164. Accounting. 165-167. Application of Payments. 168. Contribution. 169. Exoneration. 170. Subrogation. 171. Marshaling. We come now to the consideration of that department of equity jurisprudence where its jurisdiction rests chiefly on its distinctive procedure. For breach of contract, for perpetration of a fraud, for the infringement of a right, an action for money damages was, as a rule, the only remedy afforded by the common law. Equity, how- ever, took a different view, and held that in many cases damages did not afford adequate relief. Hence it assumed jurisdiction to grant its own peculiar remedies; such as specific performance, in- junction, cancellation, reformation, etc. It must, however, be ad- mitted that it is impossible to draw any clearly-defined line between those matters in which the jurisdiction of equity has arisen from the distinctive character of its principles and those in which it is to be ascribed to the superiority or peculiarity of its procedure. ACCOUNTING. 164. Equity -will assume jurisdiction in matters of ac- count: (a) Where a fiduciary relation exists between the par- ties. (b) Where there are mutual accounts between the par- ties. (c) Where there are circumstances of great complica- tion, though the accounts are not mutual. 1 i Snell, Eq. pp. 610-612; 3 Pom. Eq. Jur. § 1421. 2 IS EQUITABLE REMEDIES. [Cll. 10 One of the most ancient common-law actions was the action of accoimt 1 1 could, however, be brought only in a limited class of cases. 2 The proceeding under it was cumbersome in the extreme, and courts of common law could not compel a discovery from the parties, who were incompetent to testify. 3 It is not surprising, therefore, that the common-law action of account should have fallen into disuse. It was to some extent supplanted at law by the ac- tion of assumpsit. The equitable procedure, however, was greatly superior to that of the common-law tribunals, whatever form of action might be adopted. A master in chancery had abundant power to examine the parties on oath, to make inquiries from all proper persons by testimony on oath, and to require the production of all necessary documents. It is obvious that the jurisdiction of equity in matters of account brought a great variety of business within its purview. As incident to accounts, equity took "cognizance of the administration of per- sonal assets; consequently, of debts, legacies, the distribution of the residue, and the conduct of executors and administrators. As incident to accounts, they also took concurrent jurisdiction of tithes and all questions relating thereto; of all dealings in partnership, and many other mercantile transactions; and so of bailiffs, factors, and receivers." 4 In more recent times the equity jurisdiction has been further extended to the dissolution and winding up of corpora- tions, chiefly because of its superior procedure as to accounting. The jurisdiction of equity does not, however, seem to extend to all cases of account, but is limited to the following classes: (1) Equity assumes jurisdiction of an action for an accounting where 2 Privity between the parties, either of contract or in law, was originally necessary to sustain the action. It would lie against a bailiff or receiver ap- pointed by the party or against a guardian. Afterwards, by the law merchant, it \\:is extended so that a merchant might have an account against another. Snell, Eq. p. GOO. 3 The auditors appointed to take the account could not until 4 Anne, c. 10, examine the parties before thom on oath. Whenever a disputed item was in question, the parties might join issue thereon or demur, and bring their dis- pute before the court, and thus the inquiry might be almost interminably protracted. Smith, Prin. Eq. p. 497. 4 3 Bl. Comm. 437. In the United States, special courts have been created for the purpose of administering the estates of deceased persons. The law of partnership and of corporations is too broad to be adequately treated hern. €h. 10] ACCOUNTING. 249 the parties stand in a fiduciary relation; as, principal and agent, 5 trustee and cestui que trust. 8 (2) Equity assumes jurisdiction where the accounts are mutual. Accounts are mutual, within the mean- ing of this rule, where each of two parties has received and also paid on the other's account. Where one party only has received and paid moneys, the question is only one of receipts on the one side and payments on the other, and it is a question of mutual set-off; but it is otherwise where each party has received and paid. 7 (3) Where the account is not mutual, as above defined, equity will not assume jurisdiction unless there are circumstances of great com- plication. 8 In addition to the foregoing classes of cases, the remedy of accounting is incidental to and accompanies that of injunction; for instance, in suits for infringement of patents or copyright, and in respect of waste. It should also be noted that now, in most of the American states, as well as in England, courts are empowered in legal, as well as in equitable, actions to direct a trial before a referee where the ex- amination of a very long account on either side is necessary. The principles by which courts of equity are guided in taking ac- counts will now be noticed. SAME— APPLICATION OP PAYMENTS. 165. A debtor making a payment has a right to appro- priate it to the discharge of any debt due his creditor. b Mackenzie v. Johnston, 4 Madd. 373; Rippe v. Stogdill, 61 Wis. 38, 20 N. W. 645; Webb. v. Fuller, 77 Me. 568, 1 Atl. 737; Marvin v. Brooks, 94 N. Y. 71. It has been held that an agent cannot maintain an action in equity against his principal for an accounting because the agent reposes no confidence in the principal. Padwick v. Stanley, 9 Hare, 627; Smith v. Leveaux, 2 De Gex, J. & S. 1. e Docker v. Somes, 2 Mylne & K. 664. The equitable jurisdiction to compel an accounting between partners rests on this rule. Pars. Partn. 508. 7 Phillips v. Phillips, 9 Hare, 471; Padwick v. Hurst, 18 Beav. 575; Fluker v. Taylor, 3 Drew, 183; Garner v. Reis, 25 Minn. 475; Rogers v. Yarnell, 51 Ark. 19S, 10 S. W. 622; Adams' Appeal, 113 Pa. St. 449, 6 Atl. 100. s O'Connor v. Spraight, 1 Schoales & L. 303; Uhlman v. New York Life Ins. Co., 109 N. Y. 421, 17 N. E. 363; McCulla v. Beadleston, 17 R. I. 20, 20 AtL 11; Pierce v. Equitable Assur. Soc, 145 Mass. GO, 12 N. E. 858; Attalla Min. & Manuf'g Co. v. Winchester (Ala.) 14 South. 565. 250 EQUITABLE REMEDIES. [Ch. 10 Where there have been running accounts between debtor and creditor, and various oayments have been made, and various credits given at different times, it often becomes material to ascertain to what debt a particular payment made by a debtor is to be applied. The first rale on the subject is that the debtor may apply the pay- ment to the discharge of whatever debt he pleases, 9 and the creditor has no right to insist on a different application. 10 The debtor may make the application by a stipulation in express terms, 11 or his intention so to do may be inferred from the circumstances of the transaction. Thus, where one of the debts owing was secured, and another unsecured, an intention to first discharge the secured debt was presumed. 12 The debtor's right to make the application is lost, however, unless exercised at the time of payment. If he does not then declare on what account the money is paid, he cannot after- wards do so. 18 166. If, at the time of payment, there is no express or implied appropriation by the debtor, then the creditor has the right to make the appropriation. 14 Unlike the debtor, the creditor has a right to make the applica- tion at any time after payment, and before action brought or ac- » Clayton's Case, 1 Mer. 572, 575; Tayloe v. Sandiford, 7 Wheat. 13; Picker- ing v. Day, 2 Del. Ch. 333, 3 Houst. (Del.) 474; Coleman v. Slade, 75 Ga. 61; Trentman v. Fletcher, 100 Ind. 105; Ross v. Crane, 74 Iowa, 375, 37 N. W. 959; Reed v. Boardman, 20 Pick. 441; Jones v. Williams, 39 Wis. 300. io Anon, Cro. Eliz. 68; Eylar v. Read, 60 Tex. 3S7; Libby v. Hopkins, 104 U. S. 303; Wetherell v. Joy, 40 Me. 325. ii Ex parte Imbert, 1 De Gex & J. 152; Stewart v. Keith, 12 Pa. St 238; Hansen v. Ronnsavell, 74 111. 238; Gay v. Gay, 5 Allen (Mass.) 157. 12 Young v. English, 7 Beav. 10; Holley v. Hardeman, 76 Ga. 328; Marx v. Schwartz, 14 Or. 177, 12 Pac. 253. 13 Wilkinson v. Sterne, 9 Mod. 427; Aderholt v. Embry, 7S Ala. 185; Long v. Miller, 93 N. C. 233. uLysaght v. Walker, 5 Bligh (N. S.) 1, 28; Brady v. Hill, 1 Mo. 315; John- son v. Thomas, 77 Ala. 367; Perry v. Bozeman, 67 Ga. 643; National Bank v. Bisler, 83 N. Y. 51; Bird v. Davis, 14 N. J. Eq. 467; Blackstone Bank v. Hill, 10 Pick. 129. Ch. 10] ACCOUNTING. 251 count settled between him and his debtor. 18 The creditor's right to make such application is not, however, unUmited. He may not indirectly secure payment of an illegal debt by appropriating a gen- eral payment to its discharge. 18 But a debt barred by the statute of limitations is not illegal; and if, therefore, a general payment is made, without appropriation by the debtor, it may be appropri- ated by the creditor to the discharge of a statute-barred debt. 17 The creditor cannot, however, by making such an appropriation in part payment of the debt, take it out of the operation of the statute. 18 167. In the absence of an appropriation by the parties, the law "will make the appropriation according to the order of items of the account; the first item on the debit side being the item discharged or reduced by the first item on the credit side. This proposition was decided and is known as the rule in Clayton's Case, 19 and it has been repeatedly followed both in England and in this country. 20 Some of the courts have, however, manifested a tendency to follow the Koman law, which appropriates the payment to the most burdensome debt. 21 And when there are several debts is Philpott v. Jones. 2 Adol. & E. 41, 44; Callahan v. Boazman, 21 Ala. 24G; Moss v. Adams, 4 Ired. Eq. (N. C.) 42, 51; Johnson v. Thomas, 77 Ala. 367; Haynes v. Waite, 14 Cal. 446. is Wright v. Laing, 3 Barn. & C. 165; Turner v. Turnei", 80 Va. 379; Gill v. Rice, 13 Wis. 549; Phillips v. Moses, 65 Me. 70; Rohan v. Hanson, 11 Cush. (Mass.) 44; Greene v. Tyler, 39 Pa. St. 361; Richards v. Columbia, 55 N. H. 96. it Mills v. Fowkes, 5 Bing. (N. C.) 455, 461; Armistead v. Brooke, 18 Ark. 521. is Nash v. Hodgson, 6 De Gex, M. & G. 474; Armistead v. Brooke, 18 Ark. 521. See, however, Ayer v. Hawkins, 19 Vt. 26. Application may be made to debt unenforceable under statute of frauds. Haynes v. Nice, 100 Mass. 327; Murphy v. Webber, 61 Me. 478. i» 1 Mer. 585. 20 Pemberton v. Oakes, 4 Russ. 154, 168; Bank of Scotland v. Christie, 8 Clark & F. 214; Pickering v. Day, 2 Del. Ch. 333, 3 Houst. 474; Smith v. Loyd, 11 Leigh, 512; Crompton v. Pratt, 105 Mass. 255; Willis v. Mclntyre, 70 Tex. 34, 7 S. W. 594; Allen v. Culver, 3 Denio, 284; Thompson v. St. Nicholas Nat. Bank, 113 N. Y. 325, 21 N. E. 57. 2i Story, Eq. Jur. § 459d; Magarity v. Shipman, 82 Va 784, 1 S. E. 109. 252 EQUITABI.K REMEDIES. [Ch. 10 owing to a creditor, some of which are barred by the statute of limi- tations and some not, and he does not expressly appropriate a pay- ment to those that are barred, the law will appropriate the payment to those not barred.-'- In this respect, therefore, the law appro- priates the paymenl to the besl interest of the debtor. It should also be stated that, where a debt bearing interest stands against ;i debtor, general payments made by him are first to be applied in payment of interest, any balance beyond what is necessary for that being then credited in reduction of the principal. 23 CONTRIBUTION. 168. A joint, or a joint and several, obligor on a con- tract, or obligation in the nature of contract, -who has paid or satisfied more than his proportionate share of the obli- gation, is entitled to contribution from his co-obligors, so as to equalize the common burden. 24 The right to contribution is founded on the maxim, "Equality is equity," and depends on the general principles of equity, and not on contract. 25 The relief has been granted, as we have seen, to one 22 Nash v. Hodgson, G De Gex, M. & G. 474. 23 Chase v. Box, Freem. Ch. 261; People v. New York Co., 5 Cow. (N. Y.) 331; Monroe v. Fohl, 72 Cal. 5GS, 14 Pae. 514; Morgan v. Michigan Air-Line R. Co., 57 Mich. 430, 25 N. W. 161, and 26 N. W. 865. 24 3 Pom. Eq. Jur. § 1418. 25 Dering v. Earl of Winchelsea, 1 Cox. 318, 1 White & T. Lead. Cas. Eq. 106; Stirling v. Forrester, 3 Bligh, 590; Norton v. Coons, 6 N. Y. 33, 40; Wells v. Miller, 66 N. Y. 255; Hendrick v. Whittemore, 105 Mass. 23; Chipman v. Morrill, 20 Cal. 131, 135; Robertson v. Deatherage, 82 HI. 511; Camp v. Bost- wlck, 20 Ohio St. 337. After the action of assumpsit became established, courts of law gave relief by way of contribution, on the theory of implied contract Jeffries v. Ferguson, 87 Mo. 244. The legal remedy was, however, never as efficient as the equitable. Thus, where there were several obligors, and one became insolvent, the one who paid the entire debt could at law have recovered only an aliquot part of the whole, calculated according to the origi- nal number of co-obligors. Cowell v. Edwards, 2 Bos. & P. 268. In equity, however, he can compel the remaining co-obligors to contribute ratably with himself. Hitchman v. Stewart, 3 Drew. 271; Breckinridge v. Taylor, 5 Dana, 110; Whitman v. Porter, 107 Mass. 522; Hodgson v. Baldwin, 65 111. 532; McKenna v. George, 2 Rich. Eq. (S. C.) 15. Ch. 10] EXONERATION. 253 jointly liable for the payment of a mortgage debt, who has paid more than his proportionate share on redemption. 26 A partner who has paid more than his proportionate share of the firm debts is also entitled to contribution from his copartners, or out of the partnership property; 27 and a stockholder individually liable for the corporate debts, who has paid more than his proportionate share of them, may enforce contribution from the other stockholders. 28 The most frequent application of the rule, however, is to cases of cosureties. A surety who has paid the debt is not only entitled to contribution from the other sureties, 29 but also to the benefit of any security which any of them may have taken from the principal debtor by way of indemnity. 30 Though the principle of contribution is a constructive doctrine of equity, and not founded on contract, still a person may, by con- tract, qualify or take himself out of the reach of the principle. 81 Again, the doctrine applies only to liabilities springing out of con- tract; no right to contribution exists as between wrongdoers. 32 EXONERATION. 169. One secondarily liable for the payment of a debt, not arising ex delicto, is entitled to exoneration from the one primarily liable. 26 Ante, 225. 27 Kelly v. Kauffman, 18 Pa. St. 351; Logan v. Dixon, 73 Wis. 533, 41 N. W. 713; Sears v. Starbird, 78 Cal. 225, 20 Pac. 547. 28 Beach, Eq. Jur. § 832; Aspinwall v. Sacchi, 57 N. Y. 331; Ray v. Powers, 134 Mass. 22. But see O'Reilly v. Bard, 105 Pa. St. 569. 23 Adams, Eq. p. 269; Newcoinb v. Gibson, 127 Mass. 396; Mason v. Pier- ron, 69 Wis. 585, 34 N. W. 921; Stubbins v. Mitchell, 82 Ky. 535; Neilson v. Williams, 42 N. J. Eq. 291, 11 Atl. 257; Moore v. Baker, 34 Fed. 1; Rynear- son v. Turner, 52 Mich. 7, 17 N. W. 219. so Steel v. Dixon, 17 Ch. Div. 825; Agnew v. Bell, 4 Watts (Pa.) 33; Guild v. Butler, 127 Mass. 386. si Swain v. Wall, 1 Ch. R. 80; Craythorne v. Swinburne, 14 Ves. 160, 163. 32 Merry weather v. Nixan, 8 Term R. 186; Peck v. Ellis, 2 Johns. Ch. 131; Churchill v. Holt, 131 Mass. 67; Spaulding v. Oakes, 42 Vt. 343; Seltz v. Unna, 6 WaU. 327. 254 EQUITABLE REMEDIES. [Ch. 10 Where a surety pays a debt on behalf of the principal debtor, the rule both at law and in equity is that he has a right to call upon such debtor for reimbursement. 33 If the surety discharges the debt for less than the full amount, he cannot, however, as against his principal, make himself a creditor for the whole amount, but can only claim what he has actually paid in discharge of the debt, with interest. 34 The surety need not, however, wait until he has paid the debt. He may maintain a suit in equity against the debtor to compel payment of the debt when due, whether the surety has actually been sued on it or not; for it is unreasonable that a man should always have a cloud hanging over him. 38 SUBROGATION. 170. Whenever, to protect his own rights, one not a volunteer pays or satisfies a debt for -which another is primarily responsible, he is substituted in equity in place of the creditor, and may enforce against the person pri- marily liable all the securities, benefits, and advantages held by the creditor. Like contribution, subrogation rests on principles of equity and justice, and may be decreed, though no contract or privity of any kind exists between the parties. 38 The doctrine has many illustra- tions in reported cases. Thus, a surety, on payment of the debt, as Toussaint v. Martinnant, 2 Term R. 105; Oraythorne v. Swinburne, 14 Ves. 162; White v. Miller, 47 Ind. 385; Tillotson v. Rose, 11 Mete. (Mass.) 299; Kimmel v. Lowe, 28 Minn. 265, 9 N. W. 764; Rice v. Southgate, 16 Gray. 142; Konitzky v. Meyer, 49 N. Y. 571; Merwin v. Austin, 58 Conn. 22, 18 Atl. 1029. s* Reed v. Norris, 2 Mylne & C. 361, 375; Blow v. Maynard, 2 Leigh (Va.) 30; Delaware L. & W. R. Co. v. Oxford Iron Co., 38 N. J. Eq. 151. so Ranelaugh v. Hayes, 1 Vern. 189; Wooldridge v. Norris, L. R. 6 Eq. 410; Whitridge v. Durkee, 2 Md. Ch. 442; Hayes v. Ward, 4 Johns. Ch. 123; Irick v. Black, 17 N. J. Eq. 189; Hellams v. Abercrombie, 15 S. C. 110; Moore v. Topliff, 107 111. 241. 86 Gans v. Thieme, 93 N. Y. 225, 232; Pease v. Eagan, 131 N. Y. 262, 30 N. E. 102; Cotrrell's Appeal, 23 Pa. St. 291; Aetna Life Ins. Co. v. Middleport, 124 U. S. 534, 8 Sup. Ct. 625; Philbrick v. Shaw, 61 N. H. 356. Ch. 10] SUBROGATION. 255 is entitled to all the securities which the creditor has against the principal debtor, whether given at the time of the contract or sub- sequently, and whether given with or without the knowledge of the surety or of the principal. 37 If the creditor obtains a judgment against the principal, the surety, on payment of the debt, is subro- gated to the rights of the creditor in the judgment. 38 Negotiable paper, paid by an indorser, is kept alive for his benefit; and he may enfore it against prior indorsers and the maker. 39 A junior mortgagee who pays off a senior incumbrance on the land for his own protection is subrogated to all rights and remedies of the senior in- cumbrancer. 40 An insurance company which pays a loss caused by the negligence of a third person is subrogated to all rights of the insured against such third person. 41 Numerous as are the applications of this principle, it neverthe- less has its limits. A mere volunteer cannot invoke the aid of sub- rogation. He must have paid as surety, or under some compulsion made necessary by the adequate protection of his own rights; other- 37 Mayhew v. Crickett, 2 Swanst 1S5; Pearl v. Deacon, 24 Beav. 186; Lake v. Brutton, 18 Beav. 34; Lewis v. Palmer, 28 N. Y. 271; Johnson v. Bartlett, 17 Pick. 477; Hess' Estate, 69 Pa. St 272; Budd v. Olver, 147 Pa. St. 194, 23 Atl. 1105; Frank v. Traylor, 130 Ind. 145, 29 N. E. 4S6. 38 Parsons v. Briddock, 2 Vera. 608; Townsend v. Whitney, 75 N. Y. 431; Fleming v. Beaver, 2 Rawle (Pa.) 128; German American Sav. Bank v. Fritz, 68 Wis. 390, 32 N. W. 123; Crisfield v. State, 55 Md. 192; Smith v. Rumsey, 33 Mich. 183; Lumpkin v. Mills, 4 Ga. 343; Crawford v. Logan, 97 111. 390; Schleissmann v. Kallenberg, 72 Iowa, 338; Lyon v. Boiling, 9 Ala. 463. In some of the states, however, it is held that payment by the surety extinguishes the judgment Adams v. Drake, 11 Cush. (Mass.) 504; Findlay v. Bank of U. S., 2 McLean, 44 Fed. Cas. No. 4,791. so Beckwith v. Webber, 78 Mich. 390, 44 N. W. 330; Seixas v. Gonsoulin, 40 La. Ann. 351, 4 South. 453; Rushworth v. Moore, 36 N. H. 1SS; Parker v. Sanborn, 7 Gray (Mass.) 191; North Nat. Bank v. Hamlin, 125 Mass. 506. •toMattison v. Marks, 31 Mich. 421; Levy v. Martin, 48 Wis. 198, 4 N. W. 35; Yaple v. Stephens, 36 Kan. 680, 14 Pac. 222; Lamb v. Montague, 112 Mass 352. 41 Burnand v. Rodocanachi, 7 App. Cas. 339; Deming v. Merchants' Cotton- Press & Storage Co., 90 Tenn. 306, 17 S. W. 89; Connecticut Fire Ins. Co. v. Erie R. Co., 73 N. Y. 399; Pratt v. Radford, 52 Wis. 114, 8 N. W. 606; Chicago, St. L. & N. O. R. Co. v. Pullman Southern Car. Co., 139 U. S. 79, 11 Sup. Ct 490; Perrott v. Shearer, 17 Mich. 48. 256 EQUITABLE REMEDIES. [Cb. 10 wise payment extinguishes the debt. 42 Again, the principle will not be applied in favor of one who has been guilty of inequitable or illegal conduct in the transaction. 43 "It is only to prevent fraud and subserve justice that equity ingrafts the wholesome provisions of subrogation or of equitable lien upon a transaction, and it should never be done w f here it would work injustice." 44 MARSHALING. 171. Where one person has a clear right to resort to two funds, and another person has a right to resort to only one of these two funds, the single creditor may say that, as between himself and the double creditor, the double creditor shall be put to exhaust the security on which the single creditor has no claim. 45 The doctrine of marshaling owes its introduction into equity juris- prudence to the fact that at common law a debt by specialty could be enforced on the debtor's death, against his land as well as against his personal estate; while simple contract debts could be enforced against the personalty only. Courts of equity, therefore, laid down the principle that a person having resort to two funds shall not by his choice disappoint another having one only. 48 The practice 42 2 Beach, Mod. Eq. 801; Acer v. Hotchkiss, 97 N. Y. 395, 403; Sandford v. McLean, 3 Paige, 117; Aetna Life Ins. Co. v. Middleport, 124 U. S. 534, 8 Sup. Ct. G25; Desot v. Ross, 95 Mich. 81, 54 N. W. 694; Woriner v. Waterloo Agri- cultural Works, 62 Iowa, 699, 14 IV. W. 331; Watson v. Wilcox, 39 Wis. 643; McNeil v. Miller, 29 W. Va. 480, 2 S. E. 335; Wadsworth v. Blake, 43 Minn. 509, 45 N. W. 1131; Webster's Appeal, 86 Pa. St. 409; Brice v. Watkins, 30 La. Ann. 21; Kitchell v. Mudgett, 37 Mich. S2. 43 Rowley v. Towsley, 53 Mich. 329, 19 N. W. 20; Milwaukee & M. R. Co. v. Soutler, 13 Wall. 517; Perkins v. Hall, 105 N. Y. 539, 12 N. E. 48; Devine v. Harkness, 117 111. 147, 7 N. E. 52; Wilkinson v. Babbitt, 4 Dill. 207, Fed. Cas. No. 17,668; Johnson v. Moore, 33 Kan. 90, 5 Pac. 406; Guckenheimer v. Ange- vine, 81 N. Y. 394. 44 Kelly v. Kelly, 54 Mich. 47, 19 N. W. 580; D wight v. Scranton & W. L. Co., 82 Mich. 624, 47 N. W. 102. 45 Per Lord Westbury, in Dolphin v. Aylward, L. R. 4 H. L. 486. 46 Trimmer v. Bayne, 9 Ves. 209, 211; Aldrich v. Cooper, 8 Ves. 382, 2 White & T. Lead. Cas. Eq. 80. Ch. 10] MARSHALING. 257 adopted in the early days was to summarily forbid the creditor with two funds to touch that which was the sole resource of the other. 47 The remedy by injunction is, however, rarely applied in modern times. 48 The usual course is to permit the double creditor to en- force his claim as he pleases; but, if he chooses to resort to the only fund on which the other has a claim, that other is subrogated to all his rights against the fund to which otherwise he could not have re- sorted. 49 Though the distinction between specialty and simple con- tract debts has long ago been abolished, the doctrine of marshaling has survived. Thus, where a senior mortgage covers two estates, and a junior mortgage covers one only of these two, the senior mort- gagee must resort first to the estate which is alone subject to his mortgage, so as to release as much as possible the estate which is subject to both mortgages, and so give the junior mortgagee, whose debt is solely charged on that estate, a chance of getting paid. 50 Where a partner gives a mortgage covering both firm and individual property to secure a firm debt, an individual creditor of the partner may compel the firm creditor to exhaust the firm assets before having recourse to the individual property. 51 A legatee whose legacy is charged on land cannot enforce it out of testator's personal estate, to the detriment of the other legatees whose legacies are not thus charged ; and, if the privileged legatee does resort to the personalty, the others will be subrogated to his rights in the realty. 52 It is necessary before dismissing this subject to guard against a too comprehensive interpretation of the principle. It does not ap- 47 Kerley, Hist. Eq. p. 215. 48 Evertson v. Booth, 19 Johns. (N. Y.) 495; Woolcocks v. Hart, 1 Paige (N. Y.) 185. 49 Milrnine v. Bass, 29 Fed. 632; Ramsey's Appeal, 2 Watts (Pa.) 228; Hud- kins v. Ward,- 30 W. Va. 204, 3 S. E. 600; Sims v. Albea, 72 Ga. 751; Turner v. Flinn, 67 Ala. 529. eo Tidd v. Lister, 3 De Gex, M. & G. 857; Equitable Mortgage Co. v. Lowe (Kan.) 35 Pac. 829; Andreas v. Hubbard, 50 Conn. 351; Sibley v. Baker, 23 Mich. 312; Millsaps v. Bond, 64 Miss. 453, 1 South. 506; Turner v. Flinn, 67 Ala. 529; Gusdorf v. Ikelheimer, 75 Ala. 148; Hudson v. Dismukes, 77 Va. 242. 6i Bass v. Estill, 50 Miss. 300. 62 Hanby v. Roberts, Arnb. 128; Bonner v. Bonner, 13 Ves. 379; Perry v. Hale, 44 N. H. 363, 367; Cryder's Appeal, 11 Pa. St. 72. EQ.JUR.— 17 258 EQUITABLE REMEDIES. [Ch. 10 ply as between creditors of different persons. Thus, if a person has a demand against A. and B. jointly and severally, a creditor of I>. alone cannot compel the former creditor to apply to A. alone, so as to leave the property of B. free for his separate debts, unless there is some equity between A. and B. themselves which would entitle B. to a remedy against A. 58 Again, assets will not be marshaled in favor of a creditor, to the prejudice of another man's rights. 64 53 Ex parte Kendall, 17 Ves. 520; Meech v. Allen, 17 N. T. 301; Lloyd v. Galbraith, 32 Pa. St. 103; Lee v. Gregory, 12 Neb. 282, 11 N. W. 297; Huston's Appeal, 69 Pa. St 485. o* Webb v. Smith, 30 Ch. Div. 192; Gilliam v. McCormack, 85 Tenn. 597, 611, 4 S. W. 521; People v. E. Remington & Sons, 121 N. Y. 333, 24 N. E. 793. Ch. 11] PARTITION. 259 CHAPTER XI. EQUITABLE REMEDIES (Continued)— PARTITION AND BOUNDARIES. 172. Partition. 173. Who Entitled to Partition. 174. What is Subject to Partition. 175. Settlement of Boundaries. PARTITION. 172. Partition is the segregation of property owned in undivided shares, so as to vest in each co-owner exclusive title to a specific portion in lieu of his undivided interest in the whole. Property, whether real or personal, owned in undivided shares, may, of course, he partitioned by the voluntary acts of the owners. In the case of real estate, this is usually accomplished by a convey- ance or release, to each cotenant bj r the others, of the portion which he is entitled to hold in severalty. 1 At common law, however, coparceners alone could compel parti- tion ; but later the right was extended by statute to joint tenants and tenants in common. 2 This compulsory common-law remedy, which was by writ of partition, proved to be inadequate and incomplete at an early day, because of the various and complicated interests which arose in the ownership of real estate, and because courts of law could nei- ther compel discovery as to titles, nor effectuate the partition in fact by compelling mutual conveyances. 3 That this state of the law must have led to serious inconvenience is apparent when it is remembered that each coparcener, joint tenant, or tenant in common has a right i Freem. Coten. § 406; Yancey v. Radford, 86 Va. 638, 10 S. E. 972. 2 An estate in coparcenary existed where land, on the death of the owner intestate, devolved on several persons as coheirs. Under the English law of primogeniture, the oldest son, if there was one, became entitled to the land on his father's death, and hence the estate of coparcenary existed only where the deceased left surviving him daughters, and no sons. 3 Snell, Eq. p. 705. 260 EQUITABLE REMEDIES. [Ch. 11 to enter od every part of the land; and, except in the case of an actual expulsion, there is no remedy of any value short of partition. In the ease of an undivided ownership of chattels personal, the legal results were even more inconvenient. Thus, Littleton says: "If two be possessed of chattels personalis in common by divers titles, as of an horse, an oxe, or a cowe, &c, if the one takes the whole to him- selfe out of the possession of the other, the other hath no remedie but to take this from him who hath done to him the wrong, to occupie in common, &c, when he can see his time." 4 Equity, therefore, began to exercise jurisdiction in cases of par- tition during the reign of Queen Elizabeth, and its procedure proved so effective that the common-law writ became rather a matter of an- tiquarian interest than of practical importance. It was finally abol- ished in England by legislation in 1833, and the equity jurisdiction thus became exclusive. 5 The subject of partition, both in England and in this country, is now regulated by statutes, which are generally declaratory of the legal and equitable rights that previously obtained. 6 These statutes, of course, do not oust the jurisdiction of equity, unless they contain words of prohibition. 7 SAME— WHO ENTITLED TO PARTITION. 173. Partition is a matter of right, and may be compelled by any co-owner entitled to the possession. A suit for partition may be maintained by any cotenant, whether seised in fee 8 or for life, and apparently even when the co-owners * Co. Litt. § 323. The position of tenants in common of chattels when at odds with each other is forcibly illustrated in the following story: Two men are tenants in common of an elephant, and one declines either to pay anything to the other in the shape of profits of exhibition, or to buy his co-owner's share, and is at last brought to reason only by the threat of the injured party to shoot his undivided moiety. Haynes, Eq. p. 99. eHaynes, Eq. pp. 100-102. « See statutes of different states; Freem. Coten. § 42S. 7 Whitten v. Whitten, 3G N. H. 332; Wright v. Marsh, 2 G. Greene (Iowa) 104; Wilkinson v. Stuart, 74 Ala. 203; Labadie v. Hewitt, 85 111. 341. s Lord Brook v. Lord Hertford. 2 P. Wins. 518. »Gaskell v. Gaskell, 6 Sim. 643; Shaw v. Beers, 84 Ind. 528; Hawkins v. McDougal, 125 Ind. 597, 25 N. E. 807. Cll. 11] PARTITION. 261 are entitled only for a term of years, 10 provided only they are in possession, actual or constructive. 11 When the action is brought by tenants for life, the decree of partition will not bind the rever- sioners or remainder-men actually in existence, unless they have been joined as parties; 12 but, where there are remainder-men who may come in esse and be entitled, they will be bound by a decree made against the tenant for life. 13 A bill for partition is not maintainable by a cotenant entitled only in remainder or reversion, for it is unreasonable that a remainder- man or reversioner should disturb the existing state of things during the possession of the tenant for life or other prior tenant 14 In some of the states, however, this rale is abrogated by statute. 18 In the common-law action of partition, plaintiff was compelled to prove, not only his own title, but also that of defendant. In equity, however, plaintiff was entitled to discovery as to defendant's title. 18 Of course, the title of plaintiff to an interest in the property of which he seeks partition must be shown. 17 If it is disputed plaintiff is re- quired to establish it at law before equity will decree partition. 18 Assignment of Dower. On the same principle as in cases of partition, equity assumed juris- diction to assign dower to a widow in lands of which her husband 10 Baring v. Nash, 1 Ves. & B 551; Mnssey v. Sanborn, 15 Mass. 155. "Packard v. Packard, 16 Pick. 191, 194; Savage v. Savage, 19 Or. 112, 23 Pac. 890; Sullivan v. Sullivan, 66 N. Y. 37. 12 Freem. Coten. § 463. See, also, Black v. Washington, 65 Miss. 60, 3 South. 140; Savage v. Savage, 19 Or. 112, 23 Pac. 890. is Thomas v. Gyles, 2 Vera. 233; Brevoort v. Brevoort, 70 N. Y. 136; Baylor v. Dejarnette, 13 Grat. 152. i* Evans v. Bagshaw, L. R. S Eq. 469, 5 Ch. App. 340; Wilkinson v. Stuart, 74 Ala. 198; Nichols v. Nichols, 28 Vt. 228. is Code Civ. Proc. N. Y. § 1533. is 3 Pom. Eq. Jur. § 1388. 17 Cartwright v. Pultney, 2 Atk. 380; Jope v. Morshead, 6 Beav. 213; Agar v. Fairfax, 2 White & T. Lead. Cas. Eq. 865, 905; Wilkinson v. Stuart, 74 Ala. 203; Brendel v. Klopp, 69 Md. 1, 13 Atl. 589; Criscoe v. Hnmbrick, 47 Ark. 235, 1 S. W. 150. is Waite v. Bingley, 21 Ch. Div. 674, 681; Fenton v. Mackinac Circuit Judge, 76 Mich. 405, 43 N. W. 437; Nash v. Simpson, 78 Me. 142, 3 Atl. 53; Seymour v. Ricketts, 21 Neb. 240, 31 N. W. 781; Carrigan v. Evans, 31 S. C. 262, 9 S. E. 852; Rich v. Bray, 37 Fed. 273. 2G2 EQUITABLE REMEDIES. [Ch. 11 had been seised in fee during coverture, though dower was originally a mere legal demand. 10 In most of the states, the procedure as to the assignment of dower is now regulated by statutes, and in many nf i hern the equitable jurisdiction is abrogated. 20 SAME— WHAT IS SUBJECT TO PARTITION. 174. The power of equity to decree partition extends to all property -within the jurisdiction, -whether real or per- sonal. Equity has power to decree partition of any property that can be divided. 21 The inconvenience or difficulty in making a partition is no objection to a decree. 22 This principle sometimes led to absurd results; for the court of chancery, in olden times, could not order a sale of the premises and a division of the proceeds without the con- sent of the cotenants. 23 Thus, in Turner v. Morgan, 24 there was a decree for the partition of a single house. The whole stack of chim- neys, all the fire places, the only staircase, and all the conveniences in the yard were awarded to one of the parties, and the balance of the house to the other. Now, by statutes, both in this country and in England, courts may, in the exercise of a sound discretion, order a sale of the premises and a division of the proceeds. 25 In cases where no sale is ordered, the property is, of course, divided among the i» Curtis v. Curtis, 2 Brown, Ch. 620, 631, 632; Mundy v. Mundy, 2 Ves. Jr. 122; McMahan v. Kimball, 3 Blackf. (Ind.) 1; Swaine v. Perine, 5 Johns. Ch. 482. 20 Scrib. Dower (2d Ed.) p. 414. Equity jurisdiction is abrogated in Ar- kansas, Connecticut, Delaware, Florida, Georgia, Maine, Massachusetts, Mich- igan, Minnesota, New Hampshire, Oregon, South Carolina, and Wisconsin. 2i Moore v. Darby (Del. Ch.) 18 Atl. 768. 22 Warner v. Baynes, Amb. 5S9; Hanson v. Willard, 12 Me. 147; Steedman v. Weeks, 2 Strob. Eq. 145; Cooper v. Cedar Rapids Water-Power Co., 42 Iowa, 398. 23Griffies v. Griffies, 11 Wkly. Rep. 943; Codman v. Tinkham. 15 Pick. 3G4; Lyon v. Powell, 78 Ala. 351. 24 8 Ves. 143. 25 Agar v. Fairfax, 2 White & T. Lead. Cas. Eq. 915, and notes; Brooks v. Davey, 109 N. Y. 495, 17 N. E. 412; Corrothers v. Jolliffe, 32 W. Va. 502, 9 S. E. SS9; Brendel v. Klopp, 69 Md. 1, 13 Atl. 5S9. Ch. 11] SETTLEMENT OF BOUNDARIES. 263 tenants in common as nearly equally as may be. If, however, it is impracticable to make a fair and equitable division, the tenant to whom the more valuable share is allotted must make compensation to equalize the others. This compensation is called the "owelty of partition," 26 and may consist either in the payment of a sum of money, 27 or a servitude or easement imposed for the benefit of the less valuable share. 28 Freehold estates were always subject to partition in equity, and leaseholds were made so by statute. 29 Even incorporeal heredita- ments may be partitioned between the co-owners; for example, a ferry franchise, 30 or the right to a mineral spring. 31 The only limita- tion on the power of the court in this respect is that the property must be within its territorial jurisdiction. 82 We have already seen that owners of personal property are entirely without a legal remedy as between themselves. 33 Courts of equity, therefore, have exclusive jurisdiction of suits for partition of this species of property; 84 and it is immaterial that plaintiff's title is disputed, 35 or that he is not in possession. 88 SETTLEMENT OF BOUNDARIES. 175. The jurisdiction of equity as to the settlement of boundaries is limited to those cases: 37 (a) Where there is some peculiar equity superinduced by the acts of the parties; 2« Clarendon v. Hornby, 1 P. Wms. 446. 27 Field v. Leiter, 117 HI. 341, 7 N. E. 279; Cox v. McMullin, 14 Grat. (Va.) 82; Smith v. Smith, 10 Paige, 477; Cheatham v. Crews, SS N. C. 38. 28 Cheswell v. Chapman, 38 N. H. 17. 29 32 Hen. VIII. c. 32, § 1. so Rohn v. Harris, 130 HI. 525, 22 N. E. 587. «i Foreman v. Hough, 98 N. C. 386, 3 S. E. 912. 82 See ante, 29. as See ante, 260. s4Freem. Coten. § 426; Godfrey v. White, 60 Mich. 443, 27 N. W. 503; Smith v. Smith, 4 Rand. (Va.) 102; Swain v. Knapp, 32 Minn. 431, 21 N. W. 414; Spaulding v. Warner, 59 Vt. 646, 11 Atl. 186. as Godfrey v. White, 60 Mich. 443, 27 N. W. 593; Weeks v. Weeks, 5 lied. Eq. Ill; Smith v. Dunn, 27 Ala. 316. 36 Spaulding v. Warner, 59 Vt. 646, 11 Atl. 186. st Wake v. Conyers, 1 Eden, 331, 2 White & T. Lead. Cas. Eq. 850. 'JG1 EQUITABLE REMEDIES. [Ch. 11 (b) Where there is a bona fide dispute as to the own- ership of the soil; and (c) Where some portion of the premises is in the de- fendant's possession. The jurisdiction of equity to settle disputed boundaries is limited by the rule that equity has no jurisdiction where there is an ade- quate remedy at law. 38 The plaintiff must show clearly that, without the assistance of the court, the boundaries could not be found ; 30 or, failing the assistance of equity, that a multiplicity of actions would be occasioned. 40 Defendant's fraud in obliterating and confusing the boundaries will confer jurisdiction on the court. 41 As a rule, the location of disputed boundaries may be settled in the legal ac- tion of ejectment, and statutes in many of the states have prescribed a special procedure. The equity jurisdiction on this branch seems « to be nearly obsolete in the United States. 88 Perry v. Pratt, 31 Conn. 433. 39 Miller v. Warmington, 1 Jac. & W. 491. *o Bouverie v. Prent'ce, 1 Brown, Ch. 200; Perry v. Pratt, 31 Conn. 433. .) 5; Throckmorton v. Davidson, 68 Iowa, 643, 27 N. W. 794; McClure v. Otr'ch, 118 HI. 320, 8 N. E. 784; Bogan v. Daughdrill, 51 Ala. 312. * Cuddeo v. Rutter, 5 Vin. Abr. 53S, pi. 21, 1 White & T. Lead. Cas. Eq. 1063; Johnson v. Brooks, 93 N. Y. 337, 343; Dilburn v. Younghlood, 85 Ala. 449, 5 South. 175; Jones v. Newhall, 115 Mass. 244; Kimball v. Morton, 5 N. J. Eq. 26; Foil's Appeal, 91 Pa. St. 434. 5 Thus, a unique horn, known as the "Pusey Horn," was specifically or- dered to be delivered up. Pusey v. Pusey, 1 Vern. 273, 1 White & T. Lead. Cas. Eq. 1109. And so with a curious Greek altar piece. Duke of Somerset v. Cookson, 3 P. Wins. 3S9, 1 White & T. Lead. Cas. Eq. 1110. See, also, Ch. 12] DEFINITION AND CONTRACTS ENFORCEABLE. 207 same principle, the court will order the delivery up of specific deeds and writings to the persons legally entitled thereto. 6 In England, a contract for the sale of shares of corporate stock will he specifically enforced, because such shares are limited in num- ber, and not always obtainable. 7 With us, such contracts will not be specifically enforced, because corporate stock is ordinarily purchas- able in the market, and compensation in damages affords an adequate remedy. 8 And, for similar reasons, contracts for the sale of govern- mental securities or bonds will not be specifically enforced. 8 Agreements relating to patents for inventions afford, perhaps, the best illustration of equitable interference in cases relating to per- sonalty. Such agreements will be specifically enforced, almost as much as a matter of course as contracts concerning real property. 10 SAMF— CONTRACTS RELATING TO PERSONAL ACTS. 178. A contract relating to personal acts ■will not, as a rule, be specifically enforced. Contracts of hiring and service are of a personal and confidential character, and they will not be specifically enforced, for an enforced Fells v. Read, 3 Ves. 70; Lloyd v. Loaring, 6 Ves. 773; Williams v. Howard. 3 Murph. (N. C.) 74; McGowin v. Remington, 12 Pa. St. 56. « Brown v. Brown, 1 Dickens, 62; Gibson v. Ingo, 6 Hare, 112; Baum's Appeal, 113 Pa. St. 58, 4 Atl. 461; Cowles v. Whitman, 10 Conn. 121; Patti- son v. Skillman, 34 N. J. Eq. 344. 7 Duncuft v. Albrecht, 12 Sim. 189; Poole v. Middleton, 29 Beav. 646; Shaw v. Fisher, 2 De Gex & S. 11. s Eckstein v. Downing, 64 N. H. 24S; Avery v. Ryan, 74 Wis. 591, 43 N. W. 317; Noyes v. Marsh, 123 Mass. 2S6. Rule is otherwise where stock can- not be obtained in the market. Johnson v. Brooks, 93 N. Y. 337; Frue v. Houghton, 6 Colo. 318. »Cuddee v. Rutter, 5 Vin. Abr. 538, pi. 21, 1 White & T. Lead. Cas. Eq. 1063; Ross v. Union Pac. Ry. Co., Woolw. 26, Fed. Cas. No. 12,080. io Whitney v. Burr, 115 111. 289, 3 N. E. 434; Hapgood v. Rosenstock, 23 Fed. 86; Adams v. Messinger, 147 Mass. 185, 17 N. E. 491; Hull v. Pitrat, 45 Fed. 94; Reese's Appeal, 122 Pa. St. 392, 15 Atl. 807. 268 EQUITABLE HEME DIES. [Ch. 12 performance would probably be worse than a nonperformance. 11 The same remarks apply to the contract of agency. 12 For a somewhat similar reason, an agreement to sell the good will of a business, de- pending on personal considerations, will not be enforced; 13 but, where the good will is entirely or mainly attached to the premises, a con- tract for the sale of the good will and premises is enforceable. 14 Contracts to perform certain acts relating to land, such as con- tracts to build and repair, are of a somewhat special nature; but, as a general rule, they will not be specifically enforced, 15 because the legal remedy is usually sufficient, and it would be almost impossible for the court to carry out its decree if made. 10 Nevertheless, the court has jurisdiction to decree the performance of certain works where damages would not be an adequate remedy. Thus, a contract to build a railway crossing will be specifically enforced. 17 Again, where there have been acts amounting to part performance of the contract, the court will decree specific performance which it might otherwise have refused. 18 The general tendency of modern decisions is towards granting the relief thus sought, if possible. 19 Some of the English cases hold that specific performance will not be granted of a contract which imposes on the contractor the per- formance of continuous duties extending over a considerable period 11 Johnson v. Shrewsbury & B. R. Co., 3 De Gex, M. & G. 914; Iron Age Pub. Co. v. W. U. Tel. Co., 83 Ala. 498, 3 Sov.th. 449; William Rogers Manuf'g Co. v. Rogers, 58 Conn. 356. 20 Atl 4G7; Lindsay v. Gloss, 119 Ind. 301, 21 N. E. 897; Wakeham v. Barker, 82 Cal. 46, 22 Pac. 1131; Campbell v. Rust, 85 Va. 653, 8 S. E. 664. 12 Chinnock v. Sainsbury, 30 Law J. Ch. 409. is May v. Thomson, 20 Ch. Div. 705. i* Cruttwell v. Lye, 17 Ves. 335. is Errington v. Aynesly, 2 Brown, Ch. 341; Beck v. Allison. 56 N. Y. 366; Oregonian Ry. Co. v. Oregon Ry. & Nav. Co., 37 Fed. 733; Ross v. Union Pac. Ry. Co., Woolw. 26, Fed. Cas. No. 12,080. is Middleton v. Greenwood, 2 De Gex, J. & S. 142. it Post v. West Shore R. Co., 123 N. Y. 581, 26 N. E. 7. See, also, Stuyvesant v. Mayor, 11 Paige (N. Y.) 414; Gregory v. Ingwersen, 32 N. J. Eq. 199; Storer v. G. W. R. Co., 2 Younge & C. Ch. 48. is Price v. Corp. of Penzance, 4 Hare, 506, 509; Ross v. Union Pac. Ry. Co., Woolw. 40, Fed. Cas. No. 12,080; Birchett v. Boiling, 5 Munf. (Va.) 442. i» Wilson v. Furness R. Co., L. R. 9 Eq. 28, 33. Ch. 12] DEFINITION AND CONTRACTS ENFORCEABLE. 269 of time, on the ground that the court cannot undertake to see to such performance; 20 but this proposition has not been regarded as of controlling importance in several recent American decisions. 21 Other Instances. A contract to enter into a partnership to continue for an indefinite period will not be specifically enforced, since such a partnership is terminable at will. 22 If, however, the partnership is to continue for a fixed term of years, and there have been acts of part perform- ance, the court will exercise its powers; 23 but, to warrant it, the circumstances must be strong. 24 Contracts to refer to arbitration will not be specifically enforced. 25 The award of the arbitrators, however, is treated as a contract be- tween the parties, and will be enforced where a contract would be enforced, but not otherwise. 26 An award to do anything in specie,. 20 Blackett v. Bates, 1 Ch. App. 117; Powell D. S. C. Co. v. Taff Vale Ry. Co., 9 Ch. App. 331. 2i Joy v. St. Louis, 138 U. S. 11, 47, 11 Sup. Ct. 243 (contract prescribing terms by which one railroad company may run its trains over track of an- other company specifically enforced); Cornwall & L. R. Co.'s Appeal, 125 Pa. St. 232, 17 Atl. 427 (contract requiring all trains to stop within 200 fret of a crossing specifically enforced); South & N. A. R. Co. v. Highland Ave. & B. R. Co., 98 Ala. 400, 13 South. 682 (contract for construction, repair, and use of railroad track enforced); Union Pac. Ry. Co. v. Chicago, R. I. & P. Ry. Co., 2 C. C. A. 174, 51 Fed. 309; Louisville & N. R. Co. v. Mississippi & T. R. Co., 92 Tenn. 681, 22 S. W. 920. It should be noted, however, that in all these cases the courts were controlled in some measure, at least, by the interest of the public in questions of transportation. 22 Scott v. Rayment, L. R. 7 Eq. 112; Buck v. Smith, 29 Mich. 166; Meason v. Kaine, 63 Pa. St. 335. 23 Anon., 2 Ves. Sr. 629; England v. Curling, 8 Beav. 129. 24 Downs v. Collins, 6 Hare, 418, 437. 25 Street v. Rigby, 6 Ves. 815; Cooke v. Cooke, L. R. 4 Eq. 77; Half hide v. Fenning, 2 Brown, Ch. 337; Noyes v. Marsh, 123 Mass. 2S6; Smith v. Boston, C. & M. R. Co., 36 N. H. 487; Hopkins v. Gilman, 22 Wis. 476. In England such contracts are now enforceable by statute. 17 & 18 Vict. c. 125, § 11; Seligmann v. Le Boutillier, L. R. 1 C. P. 6S1; Willesford v. Watson, L. R. 14 Eq. 572. 28 Blackett v. Bates, 1 Ch. App. 117; Caldwell v. Dickinson, 13 Gray, 365; Story v. Norwich & W. R. Co., 24 Conn. 94; McNeil v. Magee, 5 Mason, 244, Fed. Cas. No. 8,915; Kirksey v. Fike, 27 Ala. 383. 270 EQUITABLE REMEDIES. [Ch. 12 as to convey an estate or assign securities, will therefore be en- forced, 27 but not an award to pay money. 28 A court of equity will not specifically enforce a contract to lend or to borrow or to pay money, 29 but it will decree specific perform- ance of an agreement to give security in consideration of money due. 30 Contracts to insure have been enforced even after loss. 81 GROUNDS FOR REFUSING RELIEF. 179. For the purpose of conveniently dealing -with the defenses open to a defendant in an action for specific per- formance, it may be noticed that there are: (a) Some -which, if substituted in a common-law action for damages, would produce a similar result. (b) Others -which are confined to specific performance actions. (c) Others -which, although recurring in common-law actions for damages, produce in specific perform- ance actions either a dissimilar, or, at least, not a precisely similar, result. 27 Norton v. Mascall, 2 Vera. 24, and cases cited in preceding note. as Hall v. Hardy, 3 P. Wms. 190; Howe v. Nickerson, 14 Allen (Mass.) 400; Txirpin v. Banton, Hardin (Ky.) 320. 29 Sichel v. Mosenthal, 30 Beav. 371; Rogers v. Challis, 27 Beav. 175; Crampton v. Varna R. Co., 7 Ch. App. 562; Bradford, E. & C. R. Co. v. New York. L. E. & W. R. Co., 123 N. Y. 327, 25 N. E. 499; Pierce v. Plumb, 74 HI. 326, 330, 331. so Ash ton v. Corrigan, L. R. 13 Eq. 76; Triebert v. Burgess, 11 Md. 452; Rothholz v. Schwartz, 46 N. J. Eq. 477, 19 Atl. 312; Taylor v. Eckersley, 2 Ch. Div. 302, 5 Ch. Div. 740. Contra, City Fire Ins. Co. v. Olmsted, 33 Conn. 476; Johnson v. Hoover, 72 Ind. 395. si Haden v. Farmers' & M. Fire Ass'n, 80 Va. 683; Baile v. St. Joseph Fire & M. Ins. Co., 73 Mo. 371; Tayloe v. Merchants' Fire Ins. Co., 9 How. 390; Covenant Mut Ben. Ass'n v. Sears. 114 111. 108, 29 N. E. 480. Ch. 12] GROUNDS FOR REFUSING RELIEF. 271 SAME— DEFENSES HAVING SAME EFFECT AT LAW AND IN EQUITY. 180. Specific performance will not be decreed of a con- tract void at law because of: (a) Incapacity of the parties. (b) Nonconclusion. (c) Illegality. This class of defenses will be noticed but briefly, since it forms part of the general law of contracts. Incapacity of Parlies. The incapacity of a party to yield assent to a contract, such as lunacy, renders the contract unenforceable in equity, as well as at law. As regards coverture, the contracts of married women re- specting their separate property are enforceable against them and in their favor. Infancy, as we shall hereafter see, has a somewhat different effect in equity than at law. Contract must be Concluded. So long as the parties are only in negotiation, there is no con- tract which can be specifically enforced. 32 It is often very difficult, however, to distinguish mere negotiations from contract. The law on this subject is thus summarized by Mr. Fry : 33 The burden of proving that there is a concluded contract rests on plaintiff. A binding contract may be constituted by the proposal of one party and the acceptance of the other; but the proposal has no validity without the acceptance. A memorandum of agreement which may be retracted until accepted differs essentially from a memorandum of agreement which, whenever signed, is binding on the party who signs it. The acceptance of a proposal must be plain, unequivocal, unconditional, without variance between it and the proposal, and it must be completed without unreasonable delay. With respect to 32 Duff v. Hopkins, 33 Fed. 599; Mayer v. McCreery, 119 N. Y. 434, 23 N. E. 1045; Brown v. Finney, 53 Pa. St. 373: Wristen v. Bowles, 82 Cal. 84, 22 Pac. 1136; Domestic Tel. Co. v. Metropolitan Tel. Co., 39 N. J. Eq. 160, 165; Wardell v. Williams, 62 Mich. 50, 28 N. W. 796. 33 Fry, Spec. Perf. (3d Am. Ed.) p. 132. 272 EQUITABLE REMEDIES. [Ch. 12 the important question as to whether a contract has been concluded by correspondence the following rule has been announced: Where a complete contract can be collected from a correspondence between the parties, the court will grant specific performance, although it was agreed that the terms should be embodied in a formal contract, unless there was a condition suspending the final assent until the execution of the formal contract 84 Illegality. The illegality of a contract, or any part of a contract, is, of course, a bar to specific performance; but the illegality must apparently be clearly made out 85 SAME— DEFENSES CONFINED TO SPECIFIC PERFORMANCE. 181. The defenses peculiar to actions for specific perform- ance, as opposed to actions for damages, are: (a) Want of mutuality of obligation. (b) Hardship. (c) Want of fairness. (d) Inadequacy of consideration. The defenses peculiar to the action of specific performance, as well as those producing a different result than at common law, are founded on the two maxims: "He who seeks equity must do equity," and "He who comes into equity must come with clean hands." In one case it was said: "Courts not merely observe the words of the contract, but also have respect to the obligations of the golden rule; and, unless plaintiff has done as he would be done by, it is useless for him to come into that forum where equity and good conscience reign supreme over the letter of the law." 38 a* Rossiter v. Miller, 3 App. Cas. 1124. ss Sprasue v. Roonoy, 104 Mo. 349, 16 S. W. 505; Kreamer v. Earl, 91 Cal. 112, 27 Pac. 735; Bajrsott v . Sawyer, 25 S. C. 405; Piatt v. Maples, 19 La. Ann. 459. Contract void in part will not be enforced. Hall v. Loomis, 63 Mich. 709, 30 N. W. 374. 3« Rusnton v. Thompson, 35 Fed. 635, per Brewer, J. Ch. 12] GROUNDS FOR REFUSING RELIEF, 273 Want of Mutuality. Mutuality of consensus is essential to the validity of every con- tract, but to recover damages there is no necessity for mutuality of obligation. Thus, an infant can recover damages against a per- son sui juris with whom he has contracted, although he might himself have pleaded infancy. But, for specific performance, mutuality of obligation is essential; 8T and in such a case one party to a bargain is not bound when he cannot enforce it against the other. 38 Exceptions, however, exist to the necessity of mutuality. Thus, where an owner of land, for a valuable consideration, gives another, in writing, an option to purchase within a specified time, the con- tract will be enforced at the suit of the party holding the option, though no obligation rested on him to make the purchase. 39 So, a person who has not signed a contract required by the statute of frauds to be in writing may enforce it against the other who has signed. 40 Want of Fairness. Only those contracts which are fair, just, and reasonable will be specifically enforced. 41 Thus, a contract by a married woman to pur- 37 Flight v. Bolland. 4 Russ. 301; Marble Co. v. Ripley, 10 Wall. 339, 350; Iron Age Pub. Co. v. W. U. Tel. Co.. 83 Ala. 498, 3 South. 449; Bourget v. Monroe, 58 Mich. 5G3. 25 N. W. 514; Brown v. Munger, 42 Minn. 482, 44 N. W. 519; Glass v. Rowe, 103 Mo. 513, 15 S. W. 334; Butman v. Porter, 100 Mass. 337. 38 Wylson v. Dunn, 34 Ch. Div. 569, 577; Alworth v. Seymour. 42 Minn. 526, 44 N. W. 1030. The rule is subject to the modification that, if the quality originally lacking be subsequently supplied, the enforcement of the contract may be made possible. Woodruff v. Woodruff, 44 N. J. Eq. 349, 16 Atl. 4. 39 Johnston v. Trippe, 33 Fed. 530, 536; Frue v. Houghton, 6 Colo. 31S; Ross v. Parks, 93 Ala. 153, 8 South. 368; Johnston v. Wadsworth (Or.) 34 Pac 13; Watts v. Kellar, 5 C. C. A. 394, 56 Fed. 1; Boston & M. R. Co. v. Bartlett, 3 Cush. (Mass.) 224. But, where there is no consideration for the option, specific performance will not be decreed. Graybill v. Braugh, 89 Va. 895, 17 S. E. 558. 40 Miller v. Cameron, 45 N. J. Eq. 95, 15 Atl. 842; Clason v. Bailey. 14 Johns. 489; Ives v. Hazard, 4 R. I. 14; Rogers v. Saunders, 16 Me. 92; Docter v. Hellberg, 65 Wis. 415, 27 N. W. 176. "Cathcart v. Robinson, 5 Pet. 269; Rust v. Conrad. 47 Mich. 449, 11 N. W. 265; McElroy v. Maxwell, 101 Mo. 294, 14 S. W. 1; Rierd v. Beavers, 106 Ind. 483, 7 N. E. 326; Godwin v. Collins, 4 Houst. (Del.) 28. EQ.JUR.— 18 274 EQUITABLE REMEDIES. [Ch . 12 chase land, by the terms of which she is to secure payment of the pur- chase price by a mortgage, not only on the land purchased, but on her olker separate real estate, is so rash and improvident that a court of equity will not decree specific performance in the vendor's favor. 48 The period for testing fairness is the time the contract was entered into. 43 The court will not exercise its extraordinary power in compelling specific performance where to do so would necessitate a breach of trust, 44 or would work an injury to a third person or to the public interests, 45 or would compel a person to do what be is not lawfully competent to do, — partly on the ground of the unfairness and illegal taint of such contract in itself, and partly of the hardship to which it would expose the person forced to execute it. 46 Hardship. If the result of a contract is to impose great hardship on either of the contracting parties, it will not be specifically enforced. 47 Thus specific performance will not be decreed in favor of a vendor, where, after the execution of the contract, a portion of the premises has been swept away by the sea, 48 or where improvements on the land were destroyed by fire before he was ready to convey. 49 Inadequacy of Consideration. At common law, as long as there is a consideration, the court does not, as a general rule, inquire into its adequacy. But, as regards specific performance, some of the earlier cases treated mere in- « Friend v. Lamb. 152 Pa. St. 529. 25 Atl. 577. « Wfflard v. Tayloe, 8 Wall. 557; Hale v. Wilkinson, 21 Grat. (Va.) 75. 4* Dunn v. Flood, 28 Ch. Div. 586; Saltmarsh v. Beene, 4 Port. (Ala.) 283. 45 Thomas v. Duering, IKeen, 729; Curranv. HolyokeU. Water-Power Co., 116 Mass. 90: Chicago, B. & Q. R. Co. v. Reno, 113 HI. 39; Conger v. New York, W. S. & B. R. Co., 120 N. Y. 29, 23 N. E. 9S3; Kelly v. Central Pac. R. Co., 74 Cal. 557, 16 Pac. 386. 46 Fry, Spec. Perf. (3d Am. Ed.) p. 190. 47 Wedgwood v. Adams, 6 Beav. 600, 8 Beav. 103; Watson v. Marston, 4 De Gex, M. & G. 230; Ramsay v. Gheen, 99 N. C. 215, 6 S. E. 75; Miles v. Dover Furnace Iron Co., 125 N. Y. 294, 26 N. E. 261. See, however, Franklin Tel. Co. v. Harrison, 145 U. S. 459. 12 Sup. Ct. 900. 48 Huguenin v. Courtenay, 21 S. C. 403. 48 Smith v. Cansler, 83 Ky. 307. Ch. 12] GROUNDS FOR REFUSING RELIEF. 275 adequacy of price as a sufficient defense to the action. 50 The modem rule, however, is that inadequacy of consideration is not a sufficient ground for refusing specific performance, unless it is so gross as to shock the conscience, amounting to conclusive evidence of fraud. 61 SAME— DEFENSES PRODUCING DIFFERENT RESULT THAN IN COMMON-LAW ACTION. 182. The following defenses, though constantly recur- ring in common-law actions for damages, produce in spe- cific performance actions a dissimilar, or, at any rate, not a precisely similar, result: (a) Lapse of time. (b) Fraud and mistake. (c) Uncertainty and indefiniteness of contract. (d) Want of good title. (e) Default on plaintiff's part. (f ) The statute of frauds. Lapse of Time. Equity aids the vigilant, not those who slumber on their rights. Independent of the statute of limitations, the rules of equity require the plaintiff to exert himself energetically. He must come within a reasonable time with his demand. Laches will disentitle him to as- sistance. 82 Especially is this the case when the subject-matter of the contract is an article of fluctuating value, so that delay may greatly change the aspect of the bargain. 63 bo Falcke v. Gray, 4 Drew. 651. 5i Watson v. Doyle, 130 111. 415, 22 N. E. 613; Lee v. Kirby, 104 Mass. 420; Randolph's Ex'r v. Quidnick Co., 135 U. S. 457, 10 Sup. Ct. 655. See, also, ante, 141. 52 Moore v. Blake, 1 Ball & B. 62; Smith v. Clay, 3 Brown, Ch. 610, note; Eads v. Williams, 4 De Gex, M. & G. 674, 691; Cocanaugher v. Green (Ky.) 20 S. W. 542; Young v. Young, 45 N. J. Eq. 27, 39, 16 Atl. 921; McCabe v. Mathews, 40 Fed. 338; Alexander v. Wunderlich, 118 Pa. St. 610, 12 Atl. 580; Blackwell v. Ryan, 21 S. C. 112; Ridgway v. Ridgway, 69 Md. 242, 14 Atl. 659; Boston & M. R. Co. v. Bartlett, 10 Gray (Mass.) 384. 53 Pollard v. Clayton, 1 Kay & J. 462; Deen v. Milne, 113 N. Y. 303, 309, 20 N. E. 861; Combs v. Scott, 76 Wis. 662, 45 N. W. 532; Penrose v. Leeds, 276 EQUITABLE REMEDIES. [Ch. 12 Fraud and Mistake. The subjects of fraud and mistake have already been fully con- sidered. 04 If a contract is such that equity would rescind it for fraud or mistake, a fortiori it will refuse specific performance, be- cause plaintiff must come into equity with clean hands. 55 State- ments contrary to fact, made by a party with a view to a contract, are grounds for resisting specific performance, though the party making them believed them to be true. 58 Silence as to material facts by one party is a defense to the other in a specific performance ac- tion." A mistake of one party, contributed to by the other either intentionally or unintentionally, is ground for refusing specific per- formance. 58 The principle goes even further; and a mistake of one of the parties, not contributed to by the other, has been held a valid defense; 59 but generally the cases where a defendant has escaped on the ground of a mistake not contributed to by plaintiff have been cases where it would have amounted to an injustice to hold him to his bargain. 60 Contract must be Definite and Certain. A greater amount of certainty is required in an action for specific performance of a contract than in an action for damages. To sus- tain the common-law action, plaintiff need prove only the negative 46 N. J. Eq. 294. 29G. 19 Atl. 134; Ruff's Appeal. 117 Pa. St. 319; 11 Atl. 553; Chicago, M. & St. P. R. Co. v. Stewart, 19 Fed. 5. 04 Ante, 117. B5 Vigers v. Pike, 8 Clark & F. 5G2, 565; Cathcart v. Robinson, 5 Pet. 264. ee In re Banister, 12 Ch. Div. 131, 142; Holmes' Appeal. 77 Pa. St. 50; Isaacs v. Strainka, 95 Mo. 517, 8 S. W. 427; Kelly v. Central Pac. R. Co.. 74 Cal. 557, 16 Pac. 3S6. 57 Byars v. Stubbs, 85 Ala. 256, 4 South. 755; Margraf v. Muir, 57 N. Y. 155; Baskcomb v. Beckwith, L. R. 8 Eq. 100. ss Denny v. Hancock, 6 Ch. App. 1; Campbell v. Durham, 86 Ala. 299, 5 South. 507. 59 Webster v. Cecil, 30 Beav. 62; Malins v. Freeman, 2 Keen, 25; Buckley v. Patterson, 39 Minn. 250, 39 N. W. 490; Burkhalter v. Jones, 32 Kan. 5, 3 Pac. 559. 6 <> Where there has been no fraud or misrepresentation, and the terms of the contract are unambiguous, so that there is no reasonable ground or excuse for a mistake, it is not sufficient, in order to resist specific performance, for a party to say that he did not understand its meaning. Caldwell v. Depew* 40 Minn. 528, 42 N. W. 479. Ch. 12] GROUNDS FOR REFUSING RELIEF. 277 proposition that defendant has not performed the contract, — a con- clusion which may be often arrived at without any exact considera- tion of the terms of the contract; while, in proceedings for specific performance, it must appear not only that the contract has not been performed, but what is the contract which is to be performed. 61 It is, perhaps, impossible to lay down any general rule as to what is sufficient certainty in a contract; but it must contain a description of the subject-matter, parties, price, and other terms. 62 When re- duced to writing, the description may be identified by extrinsic evi- dence, and the maxim, "That is certain which may be made certain," applies. 63 When the contract, specifies a mode of ascertaining the price, which is essential, specific performance will not be decreed, unless that mode has been followed. 64 Want of Good Title. The vendor must make out a title free from reasonable doubt, — a marketable title, as it is called. 65 But a title will not be considered doubtful merely because there is a slight risk of some future litiga- «i Fry, Spec. Perf. (3d Am. Ed.) 173. 62 Ross v. Purse, 17 Colo. 24, 28 Pac. 473; Iron Age Pub. Co. v. W. U. Tel. Co., 83 Ala. 498, 3 South. 449; Woods v. Evans, 113 111. 186; Ham v. Johnson (Minn.) 50 N. W. 584; Walcott v. Watson (Cir. Ct.) 53 Fed. 429; Hennessey v. Woolworth, 128 U. S. 440, 9 Sup. Ct. 109; Crouse v. Frothingham, 97 N. Y. 105; Anderson v. Brinser, 129 Pa. St. 376, 11 Atl. 809, and 18 Atl. 520. Indefiniteness as to consideration, Weaver v. Shenk, 154 Pa. St. 206, 26 Atl. 811; Fogg v. Price, 145 Mass. 513, 14 N. E. 741; Huff v. Shepavd, 58 Mo. 242; Pray v. Clark, 113 Mass. 2S3; Maud v. Maud, 33 Ohio St 147. Indefinite •description of subject-matter, Preston v. Preston, 95 U. S. 200; Eggleston v. Wagner, 46 Mich. 610, 10 N. W. 37; Minneapolis & St. L. Ry. Co. v. Cox, 76 Iowa, 300, 41 N. W. 24; Combs v. Scott, 76 Wis. 662, 45 N. W. 532; Mann v. Higgins, 83 Cal. 66, 23 Pac. 206; Olmstead v. Abbott, 61 Vt. 281. 18 Atl. 315. 63 Shardlow v. Cotterell, 20 Ch. Div. 90; Ragsdale v. Mays, 65 Tex. 255; Docter v. Hellberg, 65 Wis. 415, 27 N. W. 176. 64 Firth v. Midland Ry. Co., L. R. 20 Eq. 100; Woodruff v. Woodruff, 44 N. J. Eq. 349, 16 Atl. 4; Hopkins v. Gilman, 22 Wis. 476; Graham v. Call, 5 Munf. (Va.) 396. 65 Vought v. Williams, 120 N. Y. 253, 24 N. E. 195; Townshend v. Goodf el- low, 40 Minn. 312, 41 N. W. 1056; Emmert v. Stouffer. 04 Md. 543, 3 Atl. 273, and 6 Atl. 177; Cornell v. Andrews, 35 N. J. Eq. 7; Adams v. Valentine, 33 Fed 1; People v. Open Board, 92 N. Y. 98. 278 EQUITABLE REMEDIES. [Ch. 12 tion against the purchaser, 88 nor where it would be the duty of the judge to give a clear direction to the jury in favor of the title, and not leave the evidence generally to its consideration. 87 /' : nit on Plaintiff's Port. The plaintiff must perform the material and essential terms of the contract, or equity will refuse specific performance in his favor. 68 Generally, the dispute arises as to whether he has performed within the proper time. At law, failure of the plaintiff to perform all the conditions of his contract within the time specified therein was always a bar to an action. 09 In equity, the question of time was differently regarded; for a court of equity discriminated between those terms of a contract which were formal and those which were of the substance and essence of the agreement; 70 and, applying to contracts those principles which had governed its interference in relation to mortgages, it held that the principal object of the parties was the sale of an estate for a specified sum, and that the particular day named in the contract for its completion was nonessential. 71 Specific performance will therefore be granted, notwithslanding plain- tiff's failure to keep the dates assigned by the contract, at least in cases where the element of time is clearly of no consequence. 72 66 First African M. B. Soc. v. Brown, 147 Mass. 296, 298. 17 N. E. 549; Hell- reigel v. Manning, 97 N. Y. 56; Cambrelleng v. Purton. 125 N. Y. 610, 26 N. E. 907; Stevenson v. Polk, 71 Iowa, 278, 32 N. W. 340; Hedderly v. Johnson, 42 Minn. 443, 44 N. TV. 527. 67 Chesman v. Cummings, 142 Mass. 65, 67, 7 N. E. 130. The parties inter- ested should, however, all be before the court. Fleming v. Burnham, 100 N. Y. 1, 9, 2 N. E. 905. es Hagserty v. Elyton Land Co., 89 Ala. 428, 7 South. 651; Eastman v. Plumer, 46 N. H. 464; Chicago Municipal G. L. & F. Co. v. Town of Lake, 130 111. 42, 22 N. E. 610; Alexander v. Wunderlich, 118 Pa. St 610, 12 AtL 580. 6» Stowell v. Robinson, 3 Bin?. N. C. 928. to Parkin v. Thorold, 16 Beav. 59. 71 Per Lord Eldon in Seton v. Slade, 7 Ves. 273. 72 Sylvester v. Born, 132 Pa. St. 467, 19 Atl. 337; Dynan v. McCulloch, 46 N. J. Eq. 11, 14, 18 Atl. 822; Day v. Hunt, 112 N. Y. 191, 195, 19 N. E. 414; Maltby v. Austin, 65 Wis. 527, 27 X. W. 102; Dresel v. Jordan, 104 Mass. 407; Taught v. Cain, 31 W. Va. 424, 427, 7 S. E. 9; Hunkins v. Hunkins, 65 N. H. 95, 18 Atl. 655; Tilley v. Thomas, 3 Ch. App. .67. Delay on plaintiff's part must uot, however, be so loug as to amount to laches. See ante, 275. Ch. 12] GROUNDS FOR REFUSING RELIEF. 27 9 There are some cases, however, where time is deemed the essence of the contract, even in equity. An express stipulation " that time is of the essence of the contract, or that the agreement shall be void if it is not completed on a specified day, will be respected in equity. 73 And, though time be not originally of the essence, yet where there has been great and unreasonable delay on the one side, the other party has a right to fix a reasonable time within which the contract is to be completed, aud that time will be regarded and insisted on by equity. 74 The notice must, however, be reasonable in its terms. 75 Again, the nature of the property itself may be such as to make time of the essence of the contract, without any express stipulation. Contracts for the purchase of property of a fluctuating value are of this description; 70 as in the case of mining property 77 or stocks. 78 So, on the sale of a public house as a going concern, time is deemed of the essence of the contract. 79 If time has been made of the essence of the contract by agreement, or is considered so by reason of the nature of the property, or be- comes so by notice during the progress of the transaction, it may be enlarged or waived by subsequent agreement, or by the conduct of the parties. 80 73 Hudson v. Bartram, 3 Madd. 440; Cheney v. Libby, 134 U. S. 6S, 10 Sup. Ct 498; Woodruff v. Semi-Tropic Land & Water Co., 87 Cal. 275, 25 Pac. 354; Sowles v. Hall, 62 Vt. 247, 20 Atl. 810; Barnard v. Lee, 97 Mass. 92; Jones v. Robbins, 29 Me. 351. A stipulation that time is of the essence of the contract was disregarded in Merriam v. Goodlett, 3G Neb. 384, 54 N. W. 086. 74 King v. Wilson, 6 Beav. 126; Reed v. Breeden, 61 Pa. St. 460; Thompson v. Dulles, 5 Rich. Eq. 370; Smith v. Lawrence, 15 Mich. 499; Carter v. Phillips, 144 Mass. 100, 10 N. E. 500. 75 Green v. Sevin, 13 Ch. Div. 5S9; Austin v. Wacks, 30 Minn. 335. 15 N. W. 409. 76 Edwards v. Atkinson, 14 Tex. 373; Wilson v. Roots, 119 111. 379, 10 N. E. 204; Goldsmith v. Guild, 10 Allen, 239; Jennisons v. Leonard, 21 Wall. 302. 77 Waterman v. Banks, 144 U. S. 394. 12 Sup. Ct. 646; Macbryde v. Weekes, 22 Beav. 533. 78 Doloret v. Rothschild, 1 Sim. & S. 590. 78 Day v. Luhke, L. R. 5 Eq. 336. so Dana v. St. Paul Investment Co., 42 Minn. 194, 44 N. W. 55; Merriam v. Goodlett, 36 Neb. 384, 54 N. W. 686; Cartwright v. Gardner, 5 Cush. 273. 280, 2S1; Boyes v. Liddell, 6 Jur. 725. 280 EQUITABLE REMEDIES. [Ch. 12 SAME— STATUTE OF FRAUDS AS A DEFENSE. 183. Though a contract has not been reduced to "writing as required by the statute of frauds, equity -will specif- ically enforce it in three classes of cases: (a) Where there has been some part performance of the contract by plaintiff. (b) Where fraud has been used to prevent the contract from being properly reduced to -writing. (c) Where defendant fails to plead the statute as a defense. The statute of frauds enacts that no action shall be brought on a contract for sale of real estate unless in writing, and signed by the party to be charged. Notwithstanding this enactment, there are many cases in which equity has interfered out of its regard for con- siderations which the courts of common law refused to recognize. The reasoning on which courts of equity have acted, in what has been termed their boldest encroachment on the functions of the legislature, 81 is this: The statute of frauds was passed to prevent fraud, and never could have been intended by the legislature as an instrument of fraud; and therefore a man who has procured some benefit from another on the faith of an oral promise will not be per- mitted to turn around and fail to perform that promise, on the ground that the formalities required by the statute have not been observed. In such cases the defendant is really charged upon the equities re- sulting from the acts done in execution of the contract, and not upon the contract itself. 82 Part Performance. The majority of the cases in which relief is given, notwithstand- ing the statute of frauds, are those where the agreement has been in part performed by the plaintiff. The doctrine is completely estab- lished that contracts relating to land may be taken out of the oper- 8i Britain v. Rossiter, 11 Q. B. Div. 123, 129; Maddison v. Alderson, 8 App. Cas. 467. 82 Maddison v. Alderson, 8 App. Cas. 467, 474, per Lord Selborne. Ch. 12] GROUNDS FOR REFUSING RELIEF. 281 ation of the statute of frauds by part performance. 83 In the leading case on the subject, specific performance of an oral agreement was decreed, because plaintiff had incurred considerable expense and trouble in pulling down an old house, and building new ones, ac- cording to the terms of the agreement; it being considered against conscience, under such circumstances, for defendant to plead the statute. 84 In order, however, to prevent the recurrence of the mis- chief which the statute was passed to suppress, the application of the equity of part performance has been limited by certain prin- ciples. 1. The acts must be such as are indisputably referable to the con- tract in question, and not referable to any other title. 85 Whether or not admission into possession of an estate will be considered part performance depends on circumstances. If it has unequivocal ref- erence to the contract, it is sufficient, 88 That a stranger should be found in acknowledged possession of the land of another is strong evidence of an antecedent agreement, and is usually sufficient to warrant an application for relief in equity; 8T a fortiori where plain- 83 Maddison v. Alderson, 8 App. Cas. 467; Lester v. Foxcroft, Colles. 103, 1 White & T. Lead. Cas. Eq. 1027. 1038, 1042; Freeman v. Freeman. 43 N. Y. 34; Hiatt v. Williams, 72 Mo. 214; Schuey v. Sehaeffer, 130 Pa. St. 18, 18 Atl. 544; McWhinne v. Martin, 77 Wis. 1S2, 46 N. W. 118; Union Pac. Ry. Co. v. McAlpine, 129 U. S. 305, 9 Sup. Ct. 286; Young v. Young, 45 N. J. Eq. 34, 16 Atl. 921; Starkey v. Starkey (Ind. Sup.) 36 N. E. 2S7; Von Trotha v. Bam- berger, 15 Colo. 1, 24 Pac. 883; Popp v. Swanke, 68 Wis. 364, 31 N. W. 916. In some of the American states, however, the doctrine of part performance seems to be rejected. White v. O'Bannon, S6 Ky. 93, 5 S. W. 346; Buchan- non v. Little (Ky. App.) 22 S. W. 559; Holmes v. Holmes, 86 N. C. 205; Niles v. Davis, 60 Miss. 750. 84 Lester v. Foxcroft (1701) 1 White & T. Lead. Cas. Eq. 1027. 85 Maddison v. Alderson, 8 App. Cas. 467. 4S5; Allen v. Young, 88 Ala. 338, 6 South. 747; Neibert v. Baghurst (N. J. Ch.) 25 Atl. 474; Rogers v. Wolfe, 104 Mo. 1, 14 S. W. 805; Morrison v. Herrick, 130 111. 631, 642, 22 N. E. 537; Truman v. Truman, 79 Iowa, 506, 44 N. W T 721. se Clinan v. Cooke, 1 Schoales & L. 22; Danforth v. Laney, 28 Ala. 274; Sit- ton v. Shipp, 65 Mo. 297; Knoll v. Harvey, 19 Wis. 99; Cole v. Potts, 10 N. J. Eq. 67. See, also, Ferbrache v. Ferbrache, 110 111. 210; Heflin v. Milton, U9 Ala. 354; Holmes v. Caden, 57 Vt 111. 87 Morphett v. Jones, 1 Swanst. 181; Mundy v. Jolliffe, 5 Mylne & C. 167; Pain v. Coombs, 1 De Gex & J. 34, 46; Eaton v. Whitaker, 18 Conn. 222, 229; 282 EQUITABLE REMEDIES. [Ch. 12 tiff has made improvements and laid out money on the land. 88 On the other hand, if the possession can reasonably be accounted for apart from the alleged contract, it will not suffice. Thus, the nwe continuance in possession of a tenant is not a part performance of an agreement for a new lease, since the possession may be referred to the old lease. 80 Such continued possession, however, accompanied by expenditures in improving the premises, or the payment of an in- creased rent, referable only to the new agreement, has been held an act of part performance. 90 ' 2. Acts that are merely auxiliary and introductory, such as de- livery of abstract, measurement of the land, etc., are clearly insuffi- cient to take the contract out of the statute of frauds. 91 3. Acts capable of being undone, and admitting of the parties' be- ing remitted to their original position, are of no avail. Thus, part payment, or even entire payment, of the purchase money, is not. sufficient to entitle to relief. Here the legal remedy would be quite adequate; return of the money, with interest, being a complete re- dress. 92 Marriage, however, is not of itself a sufficient part perform- ance; the statute of frauds expressly enacting that every agreement Reed v. Reed, 12 Pa. St. 117; Wallace v. Scoggins, 17 Or. 476, 21 Pac. 558; Morrison v. Herrick, 130 111. G31, 642, 22 N. E. 537; Recknagle v. Schmaltz. 72 Iowa, 63, 33 N. W. 3G5. 88 Crook v. Corp. of Seaford, 6 Ch. App. 551; Freeman v. Freeman. 43 N. Y. 34; Moss v. Culver, 64 Pa. St. 414; Union Pac. Ry. Co. v. McAlpine, 129 U. S. 305. 9 Sup. Ct. 286; Burlingame v. Rowland, 77 Cal. 315, 19 Pac. 526; Everett v. Dilley, 39 Kan. 73, 17 Pac. 661; Hunkins v. Hunkins, 65 N. H. 95, IS Atl. 665; Frame v. Frame, 32 W. Va. 463, 9 S. E. 901. 89 Wills v. Stradling, 3 Ves. 378; Ewins v. Gordon, 49 N. H. 444; Morrison v. Herrick, 130 111. 631, 642, 22 N. E. 537; Recknagle v. Schmaltz, 72 Iowa, 63, 33 N. W. 365. so Nunn v. Fabian, 1 Ch. App. 35; Pfiffner v. S. & St. P. R. Co., 23 Minn. 343. 9i Hawkins v. Holmes, 1 P. Wins. 770; Pembroke v. Thorpe, 3 Swanst. 437, note; Phillips v. Edwards, 33 Beav. 440; Lydick v. Holland, 83 Mo. 703; Nibert v. Baghurst, 47 N. J. Eq. 201, 20 Atl. 252; Colgrove v. Solomon, 34 Mich. 494. 92 Clinan v. Cooke, 1 Schoales & L. 22, 40; Hughes v. Morris, 2 De Gex, M. & G. 349, 356; Gallagher v. Gallagher, 31 W. Va. 9, 14, 5 S. E. 297; Townsend v. Fenton, 30 Minn. 528, 16 N. W. 421; Id., 32 Minn. 482, 21 N. W. 726; Nibert v. Baghurst, 47 N. J. Eq. 201, 20 Atl. 252; Winchell v. Winchell, 100 N. Y. 159, 163, 2 N. E. 897; Forrester v. Flores, 64 Cal. 24, 28 Pac. 107. Ch. 12] SPECIFIC PERFORMANCE WITH A VARIATION. 283 made in consideration of marriage must be in writing. 93 But if an antenuptial verbal agreement for the conveyance of land is followed, not only by marriage, but by the expenditure of money, that is suffi- cient. 94 4. The equity of part performance applies only to contracts re- specting lands. It does not affect other contracts within the statute; for instance, a contract not to be performed within a year. 95 Fraud Preienting Execution of Proper Written Contract. Where the agreement was intended to have been in writing ac- cording to the statute, but this has been prevented from being done by the fraud of the defendant, equity has granted specific perform- ance; otherwise, the statute, designed to prevent fraud, would be used as a protection for it. 98 Thus, where a vendor who has agreed to sell certain land receives the full consideration, and then fraudu- lently gives a deed conveying only part of the land, specific perform- ance will be decreed, even though the contract was oral. 97 Failure to Plead Statute. The statute of frauds is an affirmative defense, and is waived unless pleaded. 98 Hence the court will specifically enforce an oral con- tract where defendant has neglected to claim the benefit of the statute. 98 SPECIFIC PERFORMANCE WITH A VARIATION. 184. Though a contract cannot be strictly carried out according to its terms, specific performance -will be 93 Warden v. Jones, 23 Beav. 487; Peek v. Peek, 77 Cal. 106, 19 Pac. 227; Henry v. Henry, 27 Ohio St 121; Adams v. Adams, 17 Or. 247, 20 Pac. 633. e* Surcome v. Pinniger, 3 De Gex, M. & G. 571; Welch v. Whelpley, 62 Mich. 15, 28 N. W. 744. 95 Britain v. Rossiter, 11 Q. B. Div. 123; Osborne v. Kimball, 41 Kan. 187, 21 Pac. 163; Wahl v. Barnum, 116 N. Y. 87, 98, 22 N. E. 2S0. 96 1 Story, Eq. Jur. § 161. 9T McDonald v. Yungbluth, 46 Fed. 836; Hitchins v. Pettingill, 58 N. H. 386; Murray v. Drake, 46 Cal. 648. Contra, Glass v. Hulbert, 102 Mass. 24. 98 Maybee v. Moore, 90 Mo. 340, 2 S. W. 471; McClure v. Otrich, 118 111. 320, 8 N. E. 784; Crane v. Powell, 139 N. Y. 379, 34 N. E. 911. 99 Cooth v. Jackson, 6 Ves. 39; Dodd v. Wakeman, 26 N. J. Eq. 484; Cloud v. Greasley, 125 111. 313, 17 N. E. 826; Shakespeare v. Alba, 76 Ala. 351; Fall v. Hazelrigg, 45 Ind. 581; Battell v. Matot, 58 Vt. 271, 5 Atl. 479. EQUITABLE REMEDIES. [Ch. 12 granted, if proper compensation can be made, and the parties in fact put in the same situation as if the contract had been strictly fulfilled. The specific enforcement of contracts which cannot be literally fulfilled, with a compensation for defects, affords one of the most striking illustrations of the contrast between the principles and methods of equity and those which prevailed in the courts of com- mon law. At law, a vendor cannot recover part of the purchase money if he is unable to literally perform the contract; nor can the purchaser insist on paying a part only, in respect of a partial failure in the sale. 100 A different rule, however, prevails in equity. There are two classes of cases where a contract not capable of literal per- formance will be specifically enforced, with a compensation for de- fects: (1) Where there is a variance as to the time in which the contract is to be performed; (2) where there is a variance in the sub- ject-matter of the sale. Variance as to Time. We have already seen that, as a rule, time is not deemed the es- sence of a contract in equity. But in all cases where specific per- formance has been decreed, notwithstanding a discrepancy in time, compensation has been made to the party injured by the delay. Ordi- narily, a purchaser is entitled to the rents and profits of the estate from the time at which the contract ought to have been completed, and the vendor is entitled to interest on the unpaid purchase money from the same time. 101 If there has been delay in making out the title, and the property has deteriorated by dilapidation or misman- agement, compensation will be allowed to the purchaser, 102 but not for deterioration after the time when he ought to have taken pos- session, 103 and, of course, not for deterioration caused by himself. 104 When time is of the essence of the contract, and the purchaser ob- 100 Adams, Eq. p. 89. ioi De Visme v. De Visme, 1 Macn. & G. 34G; Caloraft v. Roebuck, 1 Ves. Jr. 221; Bostwick v. Beach, 105 N. Y. 661, 663, 12 N. E. 32. 102 Foster v. Deacon, 3 Madd. 394; Worrall v. Munn, 38 N. Y. 137; Bostwick V. Beach, 105 N. Y. 661, 12 N. E. 32. 103 Binks v. Rokeby, 2 Swanst. 226. io* Harford v. Purrier, 1 Madd. 532. Ch. 12] SPECIFIC PERFORMANCE WITH A VARIATION. 2S5 tains a decree for specific performance, he will be entitled to com- pensation for the loss which he sustained in consequence of posses- sion not having been given to him according to the contract. 105 Variation as to Subject-Matter. Frequently, a contract for the sale of land cannot be literally per- formed, either because of a discrepancy as to quantity or the extent of the estate which the vendor agreed to convey. The cases on this question naturally fall into two divisions, according as to whether specific performance is demanded by the vendor or by the purchaser: 1. When the vendor demands specific performance, the relief will be granted on allowing the purchaser compensation, provided the contract can be performed in substance. No material part must be wanting. 106 Thus, a deficiency of 20 acres in a contract for the sale of 300 was held not to defeat the vendor's right to specific perform- ance, the purchase price being proportionately abated. 107 But, if there is a substantial variance, specific performance will not be de- creed in the vendor's favor. 108 On sale of an estate with a mansion, a small part of the estate, if near the house, may be material. 109 So where the contract was for a wharf and jetty, and it appeared that the jetty was liable to be removed by the corporation of London, specific performance was refused. 110 A material variation with respect to the title contracted to be sold is likewise fatal to a vendor's suit for specific performance. Thus, a contract for the sale of a freehold estate will not be enforced in favor of a vendor who has merely a leasehold, however long the term. 111 2. When the purchaser insists on the specific performance of a con- tract by a vendor who has agreed to sell a larger interest in an es- tate than he has, the purchaser is entitled to take what the vendor 105 Carrodus v. Sharp, 20 Beav. 56. ice M'Queen v. Farquhar, 11 Yes. 467; Vaught v. Cain, 31 W. Va. 424, 7 S. E. 9; Towner v. Tickner, 112 111. 217, 244. 107 Morgan's Adm'r v. Brast, 34 W. Va. 332, 12 S. E. 710. See, also, Farm v. Hughes (Va.) 17 S. E. 518. io8 Kenner v. Bitely, 45 Fed. 133. 109 Perkins v. Ede, 16 Beav. 193; Knatchbull v. Grueber, 3 Mer. 124. no Peers v. Lambert, 7 Beav. 546. "i Drewe v. Corp., 9 Ves. 368. 28G EQUITABLE REMEDIES. [Ch. 12 can give, and demand compensation for what he cannot give; 112 and this whether the difference is one of tenure or of quantity. 113 This has been done, even when the difference in quantity amounted to as much as one-half. 1 " And so. though the vendor's wife refuse to join in the deed, and release her inchoate dower right, the purchaser may compel specific performance, with an abatement of the price to compensate him for the defect. 116 So, also, if the vendor agrees to convey a title free of incumbrances, the purchaser may compel specific performance with an abatement of the purchase price to the extent of incumbrances. 118 It sometimes happens that, in a suit for specific performance by a purchaser, it appears that the vendor has no title whatever to any portion of the premises. In such cases the rule is that equity will retain jurisdiction to award damages, if the suit was brought in good faith, without knowledge of the defect; 117 but not if plaintiff had such knowledge. 118 Parol Evidence to Shoio Variation. We have already seen that the rule which prohibits the admission of parol evidence to vary a written contract has no application to 112 Hill v. Buckley, 17 Ves. 401; Mortlock v. Buller, 10 Ves. 315; Wallins v. Kinnard, 10 Tex. 508; Harbers v. Gadsden. G Rich. Eq. (S. C.) 284; Bostwiek v. Beach, 103 N. Y. 414, 422, 9 N. E. 41; Docter v. Hellberg, 65 Wis. 415, 27 N. W. 176; Lancaster v. Roberts (HI. Sup.) 33 N. E. 27; Roberts' Heirs v. Lovejoy, 60 Tex. 253, 257. us Hughes v. Jones, 3 De Gex, F. & J. 307; Hooper v. Smart, L. R. 18 Eq. 6S3. ii* Burrow v. Scammell, 19 Ch. Div. 175. i« Davis v. Parker, 14 Allen, 94, 98, 104; Bostwiek v. Beach, 103 N. T. 414. 9 N. E. 41; Martin v. Merritt, 57 Ind. 34. Some of the courts, however, hold that the wife will not be indirectly coerced into releasing her dower right, and that, therefore, the purchaser must pay the full purchase price if he insists on specific performance, without any abatement for the outstanding dower inter- est Graybill v. Braugh (Va.) 17 S. E. 558; Burk's Appeal, 75 Pa. St. 141. ne Grant v. Beronio (Cal.) 32 Pac. 556; Hunt v. Smith, 139 HI. 296, 28 N. E. 809. iiT Cunningham v. Duncan, 4 Wash. 506, 30 Pac 647; Combs v. Scott, 76 Wis. 662, 45 N. W. 532; Milkman v. Ordway, 106 Mass. 232, 253. us Morgan v. Bell, 3 Wash. 554, 28 Pac. 925. See, however, Steraberger v. McGovern, 56 N. Y. 12, 20. And see, also, ante, 15, "Jurisdiction Once At- tached," Oh. 12] SPECIFIC PERFORMANCE WITH A VARIATION. 287 cases of fraud or mistake. 119 It is therefore settled, both in England and America, that it is open to a defendant to resist a claim for specific performance by means of parol evidence designed to show that, either because of fraud or mistake, the contract as written does not truly express the agreement, and that its enforcement would therefore be inequitable. 120 But in England such parol evidence is not admissible in favor of plaintiff who seeks specific performance of a written contract, with a variation for alleged mistake or fraud, on the ground that the court would thus be virtually enforcing an oral agreement, in violation of the statute of frauds. 121 The distinc- tion is very generally repudiated in the United States, and parol evi- dence is admissible to show fraud or mistake in favor of plaintiff who seeks specific performance, with a variation from the written contract. 122 The American rule is supported by the principle, here- tofore stated, that fraud in preventing the reduction of an agreement to writing takes the case out of the operation of the statute of frauds. 128 "9 Ante, 129. 120 Clinan v. Cooke, 1 Schoales & L. 32, 39; Manser v. Back, 6 Hare, 443. 121 Woollam v. Hearn, 2 White & T. Lead. Cas. Eq. 920; Townshend v. Stangroom, 6 Ves. 328. 122 Gillespie v. Moon, 2 Johns. Ch. 585; Fishack v. Ball, 34 W. Va. ©44, 12 S. E. 856; Redfield v. Gleason, 61 Vt. 220, 17 Atl. 1075; Strickland v. Barber, 76 Mich. 310, 43 N. W. 449. 123 Ante, 283. 2S8 EQUITABLE REMEDIES. [Ch. 13 CHAPTER XIII. EQUITABLE REMEDIES (Continued)— INJUNCTION. 185. Definition. 18G. Jurisdictional Principles. 187. Classes of Cases Where Remedy may be Used. 1S8. Injunctions against Proceedings at Law. 189. Injunctions Relating to Contracts. 190. Injunctions Relating to Torts. 191. General Principles Governing Exercise of Jurisdiction. 192. Classes of Torts Enjoined. 193. Injunctions Relating to Trusts and Equitable Rights. DEFINITION. 185. An injunction is a judicial order, operating in per- sonam, requiring a party to do or to abstain from doing some particular act. 1 Injunctions which require the doing of particular acts are called mandatory injunctions. 2 Their occurrence is infrequent, since, in the absence of contract, a court of equity cannot directly compel the performance of a positive act. But it sometimes wiU accomplish this object in an indirect form. Thus, railroad companies have been pre- vented by mandatory injunctions from entering into agreements not to transport goods at rates fixed by law; that is, to compel them to observe the law, and regulate their rates according to statute. 3 The most frequent use of mandatory injunctions is in cases of nuisances, where the court may compel an abatement or removal. This juris- diction, however, is exercised only in cases which admit of no other i High, Inj. § 1; Kerr, Inj. p. 9. 2 High, Inj. § 2; Kerr, Inj. p. 20. a Rogers Locomotive & M. Works v. Erie R. Co., 20 N. J. Eq. 379. So an Injunction against trustees of a church, who had wrongfully excluded the minister, did not command them to open the church to him, but to desist and refrain from keeping it closed. Whitecar v. Michenor, 37 N. J. Eq. 6, 14; Beach, Mod. Eq. § G30. Ch. 13] JURISDICTIONAL PRINCIPLES. 289 remedy, and will always be refused if the injury can be reasonably compensated in damages, or even if the balance of convenience is strongly on the side of the defendant. 4 By far the most frequent use of injunctions is the prevention of a meditated wrong, rather than the redress of an injury already done, and it is with such injunctions that we have chiefly to deal. 5 The remarkable difference between these injunctions and the legal rem- edy of damages is that they will be granted in advance of any injury, provided only an intention to do an act which will result in ir- reparable injury is shown to exist. With respect to their duration, injunctions are either interlocutory or final. Interlocutory injunctions, which are also termed temporary or preliminary injunctions, are made pending the hearing of the cause on its merits, and are generally expressed to continue until such hearing or until further order. They are merely provisional, and do not conclude a right. Their object is to preserve the property subject to litigation in statu quo until the hearing or further order, and may be obtained by a plaintiff who shows that he has a fair question to raise as to the existence of the right which he alleges. 6 Final injunctions, or perpetual injunctions, as they are sometimes termed, are granted on the final hearing on the merits, and per- petually restrain the defendant from the assertion of a right or the commission of some act contrary to equity. 7 JURISDICTIONAL PRINCIPLES. 186. To warrant the issuance of an injunction, complain- ant must show: (a) That he has no plain, adequate, and complete rem- edy at law. (b) That an irreparable injury will result unless the relief is granted. * Deere v. Guest, 1 Mylne & C. 510; Jacomb v. Knight, 3 De Gex, J. & S. 538. » High, Inj. § 1. « Blakemore v. Glamorganshire Canal Navigation, 1 Mylne & K. 154; High, Inj. § 5. 7 High, Inj. § 3. EQ.JUR. — 19 290 EQUITABLE REMEDIES. [Ch. 13 The mere fact that a legal remedy exists is not sufficient to pre- vent the issuance of an injunction. The question in all cases is whether the legal remedy is full and complete. If the legal remedy does not fully come up to the requisition of the case, the exercise of the jurisdiction may be proper and beneficial. 8 Thus, the neces- sity of bringing numerous actions at law to obtain complete redress is, as we have seen, one of the grounds of equitable interference. 9 The term "irreparable injury" does not mean that there must be no physical possibility of repairing the injury, but merely that the threatened injury is a grievous one, or, at least, a material one, and not adequately reparable by damages. 10 If the act complained of threatens to destroy the subject-matter in controversy, the case may come within the principle, even though the damages may be capable of being accurately measured. 11 It should also be added that the maxims, "He who comes into equity must come with clean hands," and "He who seeks equity must do equity," apply with full force to the remedy by injunction. CLASSES OF CASES WHERE REMEDY MAY BE USED. 187. The remedy by injunction may be used in the fol- io-wing classes of cases: (a) To restrain proceedings at law. (b) To restrain breach of contract. (c) To restrain commission of tort. (d) To restrain breach of trust and violation of equita- ble rights. It is, of course, impossible, within the limits of this work, to specify ever}' case to which the remedy of injunction might be applied. sLumley v. Wagner, 1 De Gex, M. & G. 616; Watson v. Sutherland, 5 Wall. 74; Payne v. Kansas & A. V. R, Co., 46 Fed. 546; Irwin v. Lewis, 50 Miss. 363. » Ante, 15. io Pinchin v. London & B. Ry. Co., 5 De Gex, M. & G. 860; Puckette v. Judge, 39 La, Ann. 901, 2 South. 801; Dudley v. Hurst, 67 Md. 44, 8 Atl. 901; Hodge v. Giese, 43 N. J. Eq. 312, 11 Atl. 4S4. ii Hilton v. Earl of Granville, Craig & P. 2S3, 292. Ch. 13] INJUNCTIONS AGAINST PROCEEDINGS AT LAW. 291 All that can be done is to illustrate the circumstances in which the remedy is most usually sought; and it is believed that whatever other cases may suggest themselves will be found to fall within some one of the classes indicated. INJUNCTIONS AGAINST PROCEEDINGS AT LAW. 188. When, by accident, mistake, or fraud, or otherwise, a party has an unfair advantage in a court of law, and it is against conscience that he should use that advantage, a court of equity will restrain him. In the earlier history of equity jurisprudence, the remedy of in- junction was used almost exclusively to restrain actions at law. 1 - The ground for imposing this restraint was the refusal of common-law courts to entertain equitable defenses, and hence a cause was liable to be decided by them on consideration of a part only, and not the whole, of the dispute. 13 To render such equitable defenses effective, and prevent a miscarriage of justice, equity would restrain the plain- tiff personally from further steps in the action at law. These in 'unc- tions were not directed against the courts of common law, and did not assume to prohibit them from exercising their jurisdiction; but they were directed against the parties, who rendered themselves lia- ble for contempt towards the equity court if they persisted in mov- ing a step in disobedience to the injunction. 14 Since these injunc- 12 "The weapon of injunction was wielded by the court until the present century with little of its later effect. Whenever a prima facie case for the exercise of equitable interference to stay action at law was established, the 'common injunction' might be obtained on motion or at the healing. 'Pre- vention of mischief by injunction is a head of equity upon which instances few and far between are to be found before Lord Eldon's time. Lord Thurlow would hardly grant an injunction where the parties had a remedy at law. Before his time there are not more than half a dozen instances of each species of injunction, and in these relief was as often denied as granted. Now, injunction is, it is well known, the right arm of the court, pervading the workshop of the artisan, entering alike into the miner's shaft and the mer- chant's counting house.' " Kerley, Hist. Eq. p. 258. is Story, Eq. Jur. § 875; Adams, Eq. p. 195. i* Story, Eq. Jur. § 875; Sanders v. Metcalf, 1 Tenn. Ch. 419; Piatt v. Woodruff, 61 N. Y. 378. 292 EQUITABLE REMEDIES. [Ch. 13 linns rest on the refusal or inability of common-law courts to con- sider equitable defenses, it follows that the relief will not be granteu upon grounds of which the person aggrieved might have availed him- self in an action at law, and in all such cases the parties will be left to defend at law. 15 Courts of equity did not, however, confine themselves to restrain the prosecution of actions at law, but at a very early day the chan- cellor claimed the right to arrest the fruits of an unconscionable judg- ment rendered by courts of law. The common-law judges refused from the first to bow to these injunctions, and they asserted the right to release on habeas corpus suitors in their courts who had been im- prisoned for contempt in violating such injunctions. 16 In the cele- brated case of the Earl of Oxford, 17 decided during the reign of King James I., Lord Chancellor Ellesmere stated the rule to be: "^Vhere a judgment is obtained by oppression, wrong, and a hard conscience, the chancellor will frustrate and set it aside, not for any error or de- fect in the judgment, but for the hard conscience of the party." Soon after this decision, the common-law judges, led by Lord Coke, made an ineffectual attempt to put an end to the chancellor's interference with their judgment; but, on appeal to the king, the question was finally settled in favor of the chancery jurisdiction. 18 is New York Dry-Dock Co. v. American L. I. & T. Co., 11 Paise, 3S4; Palmer v. Hayes, 93 Ind. ISO; Womack v. Powers, ~>0 Ala. 5; Palmer v. Gardiner. 77 111. 143: Dubuque & S. C. Ry. Co. v. Cedar Falls & M. Ry. Co., 76 Iowa, 702. 39 X. W. G91. is Kerley, Hist. Eq. 89. So, also, in Throgmorton v. Finch, 3 Inst. 124. 4 Inst. 8G, cited Cro. Jac. 344, the common-law judges resolved that after judg- ment at law there could be no relief in equity. i- 2 White & T. Lead. Cas. Eq. 111. is Shortly after the decision in the Earl of Oxford's Case, an injunction was issued to stay proceedings on a judgment obtained, it was said, by the plain- tiff inveigling the defendant's witnesses into an alehouse while the hearing was u r oing on. Lord Ellesmere was ill at the time, and it was thought un- likely that he would recover. The common-law judges seized this oppor- tunity, and Lord Coke advised the plaintiff's attorney to indict the defendant, his counsel, and all concerned in obtaining the injunction, of a praemunire, under 27 Edw. III., for impeaching a judgment; and in the following term he persuaded Choke, J., in charging the grand jury, to tell them to inquire, among other things, of such persons as questioned judgments by bill, and he himself strongly pressed the jury to lind true bills against one such person; but Ch. 11] INJUNCTIONS AGAINST PROCEEDINGS AT LAW. 293 The right to an injunction against a judgment is determined by the following rules: (1) If, after judgment, additional circumstan- ces are discovered, not cognizable at law, but converting the contro- versy into matter of equitable jurisdiction, the court of chancery will interfere. (2) Even though the circumstances so discovered would have been cognizable at law if known in time, yet, if their nondiscovery has been caused by fraudulent concealment, the fraud will warrant an injunction. (3) But if the newly-discovered facts would have been cognizable at law, and there have been no fraud- ulent concealments, the mere fact of their late discovery does not give a right to injunctive relief; and still less so if the facts were known at the time of the trial, and the grievance complained of has been caused either by a mistake in pleading or other mismanage- ment, or by a supposed error in the judgment of the court. 19 they, having a wholesome fear that to be employed as a weapon in the con- test between the chancellor and the chief justice would bring but little profit and much danger, altogether declined to follow his advice. The chief justice, moreover, announced that any counsel who signed a bill praying an inquiry into the circumstances of a judgment would find his mouth closed forever in the common-law courts, an even more severe measure than the imprison- ment by which a barrister in Elizabeth's reign had been driven to humble apologies for the same offense, for, until centuries afterwards, there was no separate chancery bar. The lord chancellor appealed to the king, and the matter was referred to Bacon (then attorney general) and other lawyers. They reported in favor of the chancery jurisdiction, on the ground that it had been exercised for a long time; and the question was accordingly settled in the chancellor's favor. Kerley, Hist. Eq. 113, 114. is Adams, Eq. p. 197; Bateman v. Willoe, 1 Schoales & L. 201; Harrison v. Nettleship, 2 Mylne & K. 423; Taylor v. Sheppard, 1 Younge & C. Ex. 271; In Hendrickson v. Hinckley, 17 How. (U. S.) 443, 445, Mr. Justice Curtis stated the principle as follows: "A court of equity does not interfere with judg- ments at law, unless the complainant has an equitable defense, of which he could not avail himself at law, because it did not amount to a legal defense, or had a good defense at law of which he was prevented from availing himself by fraud or accident, unmixed with negligence of himself or agents." See, to same effect, Phillips v. Pullen, 45 N. J. Eq. 5, 16 Ati. 9; Nevins v. McKee, 61 Tex. 412; Headley v. Bell, 84 Ala. 346, 4 South. 391; Darling v. Mayor, 51 Md. 1; Knox Co. v. Harsham, 133 U. S. 152, 10 Sup. Ct. 257; Warner v. Conant, 24 Vt. 351; Danaher v. Prentiss, 22 Wis. 311. Ignorance or mistake of party's own counsel does not authorize injunction against judgment, Ham- brick v. Crawford, 55 Ga. 335; Brownson v. Reynolds, 77 Tex. 254, 13 S. W. 294 EQUITABLE REMEDIES. [Ch. 13 In modern times, the enlarged powers of courts of common law to grant new trials for errors and mistakes occurring during the trial has rendered equitable interference with judgments of rare occur- rence, except where tainted with fraud ; and in this respect the court proceeds on the principles which govern it in setting aside deeds and other contracts for fraud and mistake. 20 In England, and in all the states of this country which have adopted the code procedure, injunctions against the prosecutions of actions nl law have also become infrequent, since defendant may in the legal action avail himself of any equitable defense he may have; and, as a rule, the jurisdiction is exercised only to prevent multiplicity of suits, and to prevent interference with the jurisdic- tion of a court of equity after it has once attached. 21 INJUNCTIONS RELATING TO CONTRACTS. 189. An injunction will issue against the breach of a negative contract where such breach will result in irrep- arable injury, not capable of being adequately compen- sated in damages. An injunction against the breach of a negative contract is equiva- lent to its specific performance, and it has sometimes been stated that the jurisdiction to enjoin the breach of such contract is coexten- sive with the power to compel specific performance. It is true that, in all cases where specific performance can be decreed, the jurisdic- tion by injunction will attach as matter of course; but it is not con- 986; Vaughan v. Hewitt, 17 S. C. 442; nor error of court during trial, since there is a remedy by appeal, Cassel v. Scott, 17 Ind. 514; Reynolds v. Horine, 13 B. Mon. 234; Vaughn v. Johnson, 9 N. J. Eq. 173. 203 Pom. Eq. Jur. § 1365. Fraud practiced by successful party is ground for injunction against judgment. Greenwaldt v. May, 127 Ind. 511, 27 N. E. 158; Gates v. Steele, 58 Conn. 316, 20 Atl. 474; Taylor v. Nashville & C. R. Co., 86 Tenn. 228, 6 S. W. 393; Wagner v. Shank, 59 Md. 313; Murphy v. Smith, 86 Mo. 333. 21 3 Pom. Eq. Jur. §§ 1370-1374; Wood v. Swift, 81 N. Y. 31; Platto v. Deus- ter, 22 Wis. 482; Revalk v. Kraemer, 8 Cal. 66. Ch. 13] INJUNCTIONS RELATING TO CONTRACTS. 295 fined to such, cases, 22 and will be exercised in all cases where it can operate to bind men's consciences, as far as they can be bound, to a true and literal performance of their agreement. 23 The test, how- ever, which determines the right to an injunction for breach of con- tract is the absence of an adequate remedy at law, and the fact that the damages are not susceptible of proper assessment by the jury. 24 Among the classes of contracts which equity will protect by way of injunction are the following: 1. Whenever a covenant in a deed or lease restricts the use to which the premises may be put, — as not to erect certain classes of improve- ments, or not to use them for the sale of liquor, — an injunction will issue, as a matter of course, against its violation, not only by the original parties, but by any subsequent purchaser or assignee with notice. 26 In such a case, it is not for the court, but for the plaintiff, to estimate the amount of damages that arises from the injury in- flicted upon him. The moment the court finds that there has been a breach of covenant, that is an injury; and the court has no right to measure it, and no right to refuse to plaintiff specific performance of his contract by way of injunction against its breach. 26 2. Another class of negative contracts which the court will enforce by injunction are contracts in partial restraint of trade, where the limitation is reasonable. 27 A covenant not to engage in business will not, however, be implied from a sale of the business, or even of the 22 Singer Sewing Mach. Co. v. Union Buttonhole Co., 1 Holmes, 253, Fed. Cas. No. 12,904; Steinau v. Gas Co., 48 Ohio St. 324, 27 N. E. 547; Wolver- hampton & W. R. Co. v. London & N. W. R. Co., L. R. 16 Eq. 433, 438. 23 Kerr, Inj. p. 420; Lumley v. Wagner, 1 De Gex, M. & G. 619. 24 Beach, Mod. Eq. Jur. § 768; Steinau v. Gas. Co., 48 Ohio St. 324. 27 N. E. 545; Burdon Cent. Sugar Ref. Co. v. Leverich, 37 Fed. 67; Bailey v. Collins, 59 N. H. 459. 25 See ante, 103; Tulk v. Moxhay, 2 Phil. Ch. 777; Renals v. Cowlishaw, 9 Ch. Div. 130, 11 Ch. Div. 866; Trustees of Columbia College v. Thacher, 87 N. Y. 311; Godfrey v. Black, 39 Kan. 193. 17 Pac. 849; Morris v. Tuskaloosa Manuf'g Co., 83 Ala. 565, 3 South. 689; Gawtry v. Leland, 40 N. J. Eq. 323. 26 Per Jessel, M. R., in Leech v. Sehweder, 9 Ch. App. 463, 465. 27MeClurg's Appeal, 58 Pa. St. 51; Beal v. Chase, 31 Mich. 490; Butler v. Burleson, 16 Vt. 176; Ropes v. Upton, 125 Mass. 258; Guerand v. Dandelet, 32 Md. 561; Barret v. Blagrave, 5 Ves. 555, 6 Ves. 104. Some of the later cases have upheld contracts in restraint of trade, though unlimited territorially. EQUITABLE REMEDIES. [Ch. 13 good will ; and, unless there is a restrictive covenant in the contract of sale, an injunction will not, as a rule, issue to restrain the vendor from carrying on the same business in the neighborhood. 28 3. We have already seen that equity will not decree the specific performance of a contract for personal services ; 29 nor will it in- directly or negatively, by means of an injunction restraining the vio- lation of a contract, compel the affirmative performance from day to day, or the affirmative acceptance, of merely personal services. 30 But where a contract for personal services, of a special, unique, and ex- traordinary character, contains a covenant not to perform similar services for any other person during the lifetime of the contract, an injunction will issue to restrain the breach of the negative cove- nant. The leading case on this subject is that of Lumley v. Wag- ner, 31 where defendant had entered into a contract with plaintiff to sing at his theater for three months, and not to sing at any other theater during this period. Though the agreement to sing at plaintiff's theater was of such a nature that it could not be specifically enforced by decree, an injunction was issued to restrain defendant from singing at a rival theater. 32 Breach of contract for ordinary personal services, not intellectual or peculiar or individual in their character, will not be thus re- strained, since the remedy at law in damages is adequate. 33 Diamond Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. 419; Leather Cloth Co. v. Lorsont, 39 Law J. Ch. 86; Rousillon v. Rousillon, 14 Ch. Div. 351; High. Inj. § 1174. zsCruttwell v. Lye. 17 Ves. 335; Churton v. Douglas, Johns. Eng. Ch. 174; Close v. Flesher (Com. PI. N. Y.) 28 N. Y. Supp. 737. In Massachusetts a re- strictive covenant is implied from a sale of the good will. Dwight v. Hamil- ton, 113 Mass. 175. 29 Ante, 267. 30 Arthur v. Oakes, 63 Fed. 318. si 1 De Gex. M. & G. 616. 32 See, also, Cort v. Lassard, 18 Or. 221, 22 Pac. 1054; Daly v. Smith, 49 How. Pr. 150; McCaull v. Braham, 16 Fed. 37. A negative covenant is some- times implied from affirmative stipulations to devote entire time to a business. Duff v. Russell, 14 N. Y. Supp. 134; affirmed on appeal, 16 N. Y. Supp. 958, and again in 133 N. Y. 678, 31 N. E/ 622; Webster v. Dillon, 3 Jur. (N. S.) 432. 33 Wm. Rogers Manuf'g Co. v. Rogers, 58 Conn. 356, 20 Atl. 467; Cort v. Lassard, 18 Or. 221, 22 Pac. 1054; Burney v. Ryle, 91 Ga. 701, 17 S. E. 986. Ch. 13] INJUNCTIONS RELATING TO TORTS. 297 INJUNCTIONS RELATING TO TORTS. 190. Where a legal right in property exists, a violation of that right will be prohibited by injunction in all cases where the injury is such as is not susceptible of being ad- equately compensated in damages, or, at least, not with- out the necessity of a multiplicity of actions for that pur- pose; but an injunction will not be granted where the injury is trivial in amount, or where the court, in its dis- cretion, considers that damages should alone be given. 34 By far the most important class of injunctions at the present time is that dealing with wrongs independent of contract. The jurisdic- tion to restrain actions and judgments at law, once so important, is gradually becoming less so, owing to reasons heretofore stated. With respect to contracts, the usual equitable remedy is by way of specific performance, and the right to injunctive relief is limited to a comparatively small class, chiefly of a negative character. With respect to wrongs independent of contract, however, the restraining process of equity extends throughout the whole range of property rights and duties recognized by municipal law. 35 In recent times, even the time-honored rule that the jurisdiction is exercised only to protect rights in property has been somewhat shaken ; and the prin- ciple in the black-letter text is subject to the qualification that there is a tendency in both English and American courts to restrain by injunction every species of tort for which damages are not an ade- quate remedy, whether the wrong be to property, person, or reputa- tion. 38 SAME— GENERAL PRINCIPLES GOVERNING EXERCISE OF JURISDICTION. 191. To entitle a complainant to an injunction against the violation of a legal right, he must, in addition to the 34 Underh. Eq. p. 209. as Snell, Eq. p. 685; 3 Pom. Eq. Jur. § 1338; Gaslight & Coke Co. v. Vestry of St. Mary Abbott's, 15 Q. B. Div. 1; Tuchrnan v. Welch, 42 Fed. 548, 559. 36 See post, 310. 298 EQUITABLE RKMEDIES. [Ch. 13 inadequacy of the legal remedy and the irreparable nature of the injury, establish: (a) The existence of the right which he asserts. (b) An actual violation of that right by defendant, or a real probability or danger of such violation. To warrant the issuance of an interlocutory injunction before the hcaiing on the merits, the complainant must be able to show a fair pri- ma facie cast- in support of the title which he asserts. 37 There should be no real doubt as to the existence of plaintiff's legal right; 38 and there must be some substantial grounds for doubting the existence of the alleged legal right, the exercise of which he seeks to prevent. 39 If the legal right of complainant is not disputed, but the fact of its violation is denied, he must be able to show that the act complained of is an actual violation of the right, 40 or is at least an act which must, if carried into effect, result necessarily or inevitably in a ground of action. 41 The mere prospect or apprehension of injury, or the mere belief that the act may or will be done, is not sufficient; 42 but if an intention to do the act complained of can be shown to exist, or if a man insists on his right to do, or begins to do, or gives notice of his intention to do, an act which must, in the opinion of the court, if completed, give a ground of action, there is a foundation for the exercise of the jurisdiction. 43 After the establishment of the con- 87 Saunders v. Smith, 3 Mylne & C. 714, 728; Hilton v. Earl of Granville, Craig & P. 283, 292. as National Docks R. Co. v. Central R. Co., 32 N. J. Eq. 755; Mammoth Vein Consol. Coal Co.'s Appeal, 54 Pa. St. 1S3. 39 Sparrow v. Oxford, W. & W. R. Co., 9 Hare, 436, 441. 40 Imperial Gaslight & Coke Co. v. Broadbent. 7 H. L. Cas. 600; Ripon v. Hobart, 3 Mylne & K. 169, 176. 4i Haines v. Taylor, 10 Beav. 75; Goodhart v. Hyett, 25 Ch. Div. 190. 42 Ripon v. Hobart, 3 Mylne & K. 174; Haines v. Taylor, 10 Beav. 75; Lutheran Church v. Mascbop, 10 N. J. Eq. 57; Jenny v. Crase, 1 Cranch, C. C. (U. S.) 443, Fed. Cas. No. 7,2S5. 43 Attorney General v. Forbes, 2 Mylne & C. 123, 132; Cooper v. Whitting- ham, 15 Ch. Div. 501; Attorney General v. Acton Local Board, 22 Ch. Div. 221; McArter v. Keby, 5 Ohio, 139; Owen v. Ford, 49 Mo. 436; Diedrichs v. Northwestern Union R. Co., 33 Wis. 219; East & West R. Co. v. East Ten- nessee, V. & G. R. Co., 75 Ala. 275. Ch. 13] INJUNCTIONS RELATING TO TORTS. 299 troverted right on a trial on the merits, and the fact of its violation, complainant is entitled, as of course, to a perpetual injunction to pre- vent the recurrence of the wrong. SAME— CLASSES OF TORTS ENJOINED. 193. Courts of equity regard the legal remedy inad- equate, and -will therefore interfere by injunction — (a) To protect real property against certain torts, such as "waste, trespass, and nuisance. (b) To protect property rights in patents, copyrights, •works of literature, science, and art, and trade- marks. (c) But, as a rule, an injunction "will not issue to pro- tect other than property rights from violation, unless a breach of trust, confidence, or contract is also involved. Injuries to Real Property — Waste. Waste is a substantial injury to the inheritance done by one having a limited estate, either of freehold or for years, during the continuance of his estate. 44 The essential character of waste is that the party committing it is in rightful possession, and that there is privity of title between the parties. 45 The ground on which equity proceeds in restraining waste is the protection of the property from irreparable injury; and an injunction will issue in favor of the re- mainder-man or reversioner against the commission of any acts by the tenant for life or for years amounting to legal waste. 46 A mort- gagor, being regarded in equity as the owner of the land, may commit waste; and an injunction will not issue against him, unless it ap- pears that the security is insufficient, or will be rendered insufficient by the act complained of. 4T ** Co. Litt. 53a. 45 Davenport v. Davenport, 7 Hare, 222. <« Pulteney v. Shelton, 5 Ves. 260, note; Brock v. Dole, 66 Wis. 142, 28 N. W. 334; Mutual Life Ins. Co. v. Bigler, 79 N. Y. 568; Watson v. Hunter, 5 Johns. Ch. 169; Lavenson v. Standard Soap Co., SO Cal. 245, 22 Pac. 184. 47 Moriarty v. Ashworth, 43 Minn. 1, 44 N. W. 531; Harris v. Bannon, 78 Ky. 568; Fairbank v. Cud worth, 33 Wis. 358; King v. Smith, 2 Hare, 244. 300 EQUITABLE REMEDIES. [Ch. 13 Not only will equity restrain the commission of legal waste by the tenant of the particular estate, but it will also restrain what is known as equitable waste. Thus, where the estate of a tenant for life or for years is declared by the instrument creating it to be "with- out impeachment of waste," courts of law will never interfere; 48 but equity will control him in the exercise of the power, on the ground that it will not permit an unconscientious use to be made of a legal power. 49 In the leading case, a tenant for life without impeach- ment of waste, who was proceeding to pull down the mansion house, was enjoined at the suit of the remainder-man. 50 Trespass. The jurisdiction of a court of equity to grant injunctions against trespass is comparatively of modern origin. The court for a long time confined relief in equity to waste, founding its interference on the privity of title between the parties. 51 The rigor of the old rule in confining relief in equity to waste was relaxed for the first time by Lord Thurlqw, in a case where, the plaintiff being in possession of a close, a wrongdoer was working into his minerals, and taking away the very substance of his estate. 52 The foundation for the juris- diction is the inadequacy of the legal remedy, 53 either (1) because of the irreparable nature of the injury caused by a single act of tres- pass, 54 or (2) because of the necessity for a multiplicity of suits caused by continued and repeated trespasses. 55 « Bowies' Case, 11 Coke, 81b. 49 Micklethwait v. Micklethwait, 1 De Gex & J. 504, 524; Hawley v. Clowes, 2 Johns. Ch. 122. so Lord Bernard's Case, Finch, Prec. Ch. 454, 2 Vern. 738. 5i Davenport v. Davenport, 7 Hare, 217. 62 Flamang's Case, cited 6 Ves. 147, 7 Ves. 305, 308, 18 Ves. 184. B3 Silva v. Garcia, 65 Cal. 591, 4 Pac. 628; Frink v. Stewart, 94 N. C. 484; Smith v. City of Oconomowoc, 49 Wis. 694, 6 N. W. 329; Mulry v. Norton, 100 N. Y. 424, 3 N. E. 581. Fugitive or temporary trespass, such as removal of fence, will not be enjoined. Minnig's Appeal, 82 Pa. St. 373; Jordan v. Lanier, 73 N. C. 90. s* Removal of ore from mines by a trespasser, going to the destruction of Inheritance, will be enjoined. Anderson v. Harvey, 10 Grat. 386; Cheesman v. 65 Mussleman v. Marquis, 1 Bush. (Ky.) 463; Lembeck v. Nye, 47 Ohio St. 336, 24 N. E. 6S6; Warren Mills v. New Orleans Seed Co., 65 Miss. 391, 4 South. Ch. 13] injunctions relating to torts. 301 Injuries to Real Property — Nuisance. A nuisance, as distinguished from a trespass, is an act, not in itself an invasion of property, which causes a substantial injury to the corporeal and incorporeal hereditaments of other persons. In the case of trespass it is the immediate act which causes the injury, while in the case of nuisance the injury is the consequence of an act done beyond the bounds of the property affected by it. 56 A nui- sance may be either of a private or a public nature. The distinction between the two is that a private nuisance is an injury to the prop- erty of an individual, while a public nuisance is an injury to the property of all persons who come within the sphere of its opera- tion. 57 The usual remedy for a public nuisance is a criminal prosecu- tion brought by the sovereign power; and, if a prosecution in the Shreve, 37 Fed. 36; Silva v. Rankin, 80 Ga. 79, 4 S. E. 756; West Point Iron Co. v. Rey inert, 45 N. Y. 703; Richards v. Dower, 64 Cal. 62. 28 Pac. 113; Hammond v. Winchester, 82 Ala. 470, 2 South. 892. Cutting timber for which land is chiefly valuable, Fulton v. Harman, 44 Md. 251; Thatcher v. Humble, 67 Ind. 444; Powell v. Cheshire, 70 Ga. 357; interference with burial ground, Mooney v. Cooledge, 30 Ark. 640. An attempt to enter upon and take posses- sion of land for public use without the assent of the owner, and without the damages having been ascertained or paid or tendered, is, or would be if con- summated, in the nature of an irreparable injury for the prevention of which injunction is the proper remedy. Uren v. Walsh, 57 Wis. 98, 14 N. W. 902; Church v. Joint School Dist. No. 12, 55 Wis. 399, 13 N. W. 272. 298; Wheelock v. Noonan, 108 N. Y. 179, 15 N. E. 67; Ladd v. Osborne, 79 Iowa, 93, 44 N. W. 235; Wilson v. Hill, 46 N. J. Eq. 369, 19 Atl. 1097; Galway v. Metropolitan El. R. Co., 128 N. Y. 132, 28 N. E. 479; Port of Mobile v. Louisville & N. R. Co., 84 Ala. 115, 4 South. 106. Some of the cases hold that there must be several persons controverting the same right, and each standing on his own claim or pretension. John A. Roebling Sons' Co. v. First Nat. Bank, 30 Fed. 744; Carney v. Hadley (Fla.) 14 South. 4, 7; Thorn v. Sweeney, 12 Nev. 251; Nicodemus v. Nicodemus, 41 Md. 529. Repeated trespasses no ground for injunction if multiplicity of suits not necessary to put an end to them. For example, an intruder into plaintiff's factory, under a claim of right so to do, may be ejected by force, and hence injunction denied. Mechanics' Foundry v. Ryall, 75 Cal. 601, 17 Pac. 703. See, also, ante, 15, "Multiplicity of Suits." se Kerr, Inj. p. 106; High, Inj. § 739. bt Attorney General v. Sheffield Gas Co., 3 De Gex, M. & G. 320; Soltau v. De Held, 2 Sim. (N. S.) 142; Lansing v. Smith, 8 Cow. (N. Y.) 146. 302 EQUITABLE REMEDIES. [Ch. 13 ordinary tribunals does not afford an adequate relief, the attorney general may resort to equity to enjoin its maintenance. 68 A private individual cannot enjoin a public nuisance, unless he sustains some special, direct, and substantial damage thereby, over and above the general damage sustained by the rest of the public. 59 In the case of a private nuisance the injured person has a per- sonal right to a civil action for its redress, though it is not in every case that he will be entitled to the special remedy by injunction. If the case made out is such that the recovery of damages will give a full and adequate compensation for the injury, no foundation is laid for the interference of the court by way of injunction. If, on the other hand, the injury is of so material a nature that it cannot be well or fully compensated by the recovery of damages, or be such as from its continuance and permanent mischief might occasion a constantly recurring grievance, a foundation is laid for the interfer- ence of the court by way of injunction. 60 The principles which con- trol courts of equity in enjoining nuisances will perhaps be better understood by considering some of the cases most frequently occur- ring in practice. 1. One large class consists of nuisances to dwelling houses and houses of business. To authorize the issuance of an injunction, there must be such a degree of injury to the property as interferes ma- cs Attorney General v. Cleaver, 18 Ves. 211; Attorney General v. Steward, 21 N. J. Eq. 340. The remedy by injunction at suit of the attorney general is chiefly applied to that form of public nuisances known as "purprestures" ; i. e. encroachments on highways, streets, and navigable waters. People v. Vander- bilt, 28 N. Y. 396; People v. New York & S. I. F. Co., 68 N. Y. 71; Attorney General v. Woods, 108 Mass. 436; Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518. Inclosure of public domain by private persons enjoined as purpresture. U. S. v. Brighton Ranche Co., 26 Fed. 218; State v. Goodnight, 70 Tex. 686, 11 S. W. 119. ss Soltau v. De Held, 2 Sim. (N. S.) 141; Cranford v. Tyrrell, 128 N. Y. 341, 28 N. E. 514; Callanan v. Gilman, 107 N. Y. 360, 14 N. E. 264; Pearson v. Allen, 151 Mass. 79, 23 N. E. 731; Van Wegenen v. Cooney, 45 N. J. Eq. 24, 16 Atl. 689; Cummings v. City of St. Louis, 90 Mo. 259, 2 S. W. 130; Hargro v. Hodgdon, 89 Cal. 623, 26 Pac. 1106. go Kerr, Inj. p. 166; Gardner v. Newburgh, 2 Johns. Ch. 162; McCord v. Iker, 12 Ohio, 388; Sellers v. Parvis & Williams Co., 30 Fed. 164; Rouse v. Flowers, 75 Ala. 513; Mowday v. Moore, 133 Pa. St. 611, 19 Atl. 626; Carlisle v. Cooper, 21 N. J. Eq. 576. Ch. 13] INJUNCTIONS RELATING TO TORTS. 303 terially with its comfort and enjoyment, either for domestic purposes or purposes of business. The standard by which to determine the amount of damages that calls for the exercise of the equitable juris- diction is the comfort and enjoyment in their abode to which the in- mates are reasonably entitled; 61 and this must be estimated accord- ing to the plain and simple notions entertained by persons in or- dinary life, and not according to those held by persons accustomed to dainty habits of living. 62 The enjoyment of pure and wholesome air is a right to which the owners of land and the inmates of dwelling houses are of common right entitled. Any act which pollutes or corrupts the air is, strictly speaking a nuisance; 63 but, inasmuch as the business of life in cities and populous neighborhoods renders it impossible that the air should retain its natural state of purity, the law does not regard trifling in- conveniences, but only regards inconveniences which sensibly and materially diminish the comfort and enjoyment or value of the property. 64 It is not necessary, however, that impurities in the air should be injurious to health, but it is sufficient if they cause discomfort and annoyance to persons of ordinary sensibilities. 65 If, again, real damage or great inconvenience is occasioned by the carrying on of a noisy trade, or otherwise causing excessive noise «i Jackson v. Duke of Newcastle, 3 De Gex, J. & S. 284; Fleming v. Hislop, 11 App. Cas. 691. 62 Kerr, Inj. p. 192; Walter v. Selfe, 4 De Gex & S. 322; Cooper v. Crabtree, 20 Ch. Div. 5S9; Powell v. Bentley & G. Furniture Co., 34 W. Va. 804, 12 S. B. 1085; Dittman v. Repp, 50 Md. 516; Westcott v. Middleton, 43 N. J. Eq. 478, 11 Atl. 490. 63 Aldred's Case, 9 Coke, 58b. 64 Kerr, Inj. p. 211; St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642; Sellors v. Local Board of Health, 14 Q. B. Div. 92S; Duncan v. Hayes, 22 N. J. Eq. 26; Rhodes v. Dunbar, 57 Pa. St. 274. 65 Meigs v. Lister, 23 N. J. Eq. 199; Babcock v. New Jersey Stock- Yard Co., 20 N. J. Eq. 296. The following are examples of nuisances causing impurities in the air which have been enjoined. Erection of slaughterhouse, Bushnell v. Robeson, 62 Iowa, 540, 17 N. W. 888; Reichert v. Geers, 98 Ind. 73; rendering and fertilizing establishments, Evans v. Reading Chemical Fertilizing Co., 100 Pa. St 209, 28 Atl. 702; City of Grand Rapids v. Weiden, 97 Mich. 82, 56 N. W. 233; Peck v. Elder, 3 Sandf. 126; soot, smoke, and noxious gases, Sulli- van v. Royer, 72 Cal. 248, 13 Pac. 655; Campbell v. Seaman, 63 N. Y. 568; Cogswell v. New York, N. II. & H. R. Co., 103 N. Y. 10, 8 N. E. 537. uU4 EQUITABLE REMEDIES. [Ch. 13 or vibration, an action may be brought, and an injunction obtained, to prevent its continuance. 6 * 2. Another important class of cases rests on the right of the land- ovvner to tlie subjacent and lateral support of his land in its natural state. The right is not in the nature of an easement; but, like the right to the How of a natural stream or of air, is an incident to the right of the ordinary enjoyment of property. 07 The landowner may therefore enjoin his neighbor from so digging out the adjacent soil as to cause a subsidence of the surface of his land. 68 The light to the support of a building or other artificial weight is of a different nature. This is not a natural right of property, but is an easement which can be acquired only by grant or by prescription which presupposes a grant. 69 3. Another large class which is often enjoined, consists of nui- sances affecting water rights. All acts done by a man on his own land, whereby the rights of his neighbor in water are injuriously affected, or whereby water becomes the cause of damage to the land of his neighbor, are considered as nuisances relating to water. 70 It will, of course, be impossible to give a particular account of the vari- ous rights to water. They may be conveniently classified as rights respecting quantity and rights respecting quality. The water of permanent running streams and of inland lakes is sacred to the common use alike of all riparian proprietors, and this right is incident to the ownership of the adjacent soil. Each pro- prietor may use the water for all reasonable purposes as it flows as Vibrations caused by machinery- Dittman v. Repp, 50 Md. 516; Hen- nessey v. Carmony (N. J. Ch.) 25 Atl. 374; Demarest v. Hardham, 34 N. J. Eq. 409; but not if located in manufacturing district, Straus v. Barnett, 140 Pa. St. Ill, 21 Atl. 253; skating rink near dwelling house, Snyder v. Cabell, 20 W. Va. 48, 1 S. E. 241; ringing bells, Soltau v. De Held, 2 Sim. (N. S.) 133; Davis v. Sawyer, 133 Mass. 2S9; keeping horses in stable near dwelling house, Ball v. Ray, 8 Ch. App. 4G7; house of ill fame near dwelling, Hamilton v. Whitridge, 11 Md. 128; Marsan v. French, Gl Tex. 173; Cranford v. Tyrrell, 128 N. Y. 341, 28 N. E. 514. 67 Backhouse v. Bonomi, 9 H. L. Cas. 512; Dalton v. Angus, G App. Cas. 809. es Trowbridge v. True, 52 Conn. 190. 69 Hunt v. Peake, Johns. Eng. Ch. 710; TunstaU v. Christian, 80 Va. 1; City of Quincy v. Jones, 76 111. 231; Charles v. Rankin, 22 Mo. 566. to Kerr, Inj. p. 236; Ballard v. Tomlinson, 29 Ch. Div. 115. Ch. 13] INJUNCTIONS RELATING TO TORTS. 305 through or by his land; but he must, after its use, return it without substantial diminution or change in quantity to its natural bed or channel before it leaves his own land, so that it will reach his adja- cent proprietor in its full, original, and natural condition. 71 He may therefore be restrained from diverting the stream, or materially diminishing the quantity which would naturally flow to his neigh- bors below; 72 or, on the other hand, from damming back the stream, so as to cause an overflow on the land of his neighbor above him. 73 A riparian owner has also the right to the flow of the stream in a natural state of purity, and, where the violation of the right is con- tinuous, he may restrain the fouling of the water without proof of actual injury. 74 7i Pom. Water Rights, § 4. Heath v. Williams, 25 Me. 209; Tyler v. Wil- kinson, 4 Mason, 397, Fed. Cas. No. 14.312; Pugh v. Wheeler. 2 Dev. & B. 55. Owing to necessities of mining, a departure was made in California and other Pacific states; and the doctrine is there settled, in opposition to the common law, that a permanent right of property in the water of streams and inland lakes may be acquired by a mere prior appropriation; that a prior appropria- tor may thus acquire the right to divert, use, and consume a quantity of water, from the natural flow or condition of such streams or lakes, which may be necessary for his mining operations; and that he becomes, so far as he has thus made an actual prior appropriation, the owner of the water as against all the world. This doctrine, applied at first to the operation of mining, has been extended to all other beneficial purposes for which water may be essen- tial.— to milling, manufacturing, and municipal purposes. Pom. Water Rights, § 15. 72 Ferrand v. Corporation of Bradford, 21 Beav. 412; Wright v. Moore, 38 Ala. 593; Morrill v. St. Anthony Falls Water-Power Co., 26 Minn. 222, 2 N. W. S42; Lawson v. Wooden-Ware Co., 59 Wis. 393, 18 N. W. 440; Gardner v. Newburgh, 2 Johns. Ch. 162; Burden v. Stein, 27 Ala. 104. So, also, an upper riparian owner wall be enjoined fx*om changing the course of a stream so as to materially increase its current, to the detriment of a lower proprietor. Kay v. Kirk, 76 Md. 41, 24 Atl. 326. 73 Bemis v. Upham, 13 Pick. 169; Stone v. Roscommon Lumber Co., 59 Mich. 24, 26 N. W. 216; Learned v. Hunt, 63 Miss. 373; Minor v. De Vaughn, T? Ga. 208; McCormick v. Horan, 81 N. Y. 86. Statutes in many of the states provide for the condemnation of land to be overflowed by the erection of mill- dams. 74 Merrifield v. Lombard, 13 Allen, 16; Holsman v. Boiling Spring Co., 14 N. J. Eq. 335; Mayor, etc., of Baltimore v. Warren Manuf'g Co., 59 Md. 96, 110; Richmond Manuf'g Co. v. Atlantic De Laine Co., 10 R. I. 106; Indianapo- lis Water Co. v. American Strawboard Co., 57 Fed. 1000; Satterfield v. Rowan, eq.jtjr. — 20 30G EQUITABLE REMEDIES. [Ch. 13 4. It must suffice to mention other extensive classes of nuisances which will be enjoined, if they result in irreparable injury to private individuals; for instance, obstruction of public highways and private rights of way, of navigable water by bridges, and of easements of light and air. Before dismissing this subject, however, it should be noted that a series of recent decisions has established the principle that the owner of a lot abutting on a public street in a city has, as appurtenant to the lot, and independent of the ownership of the fee in the street, an easement in the street to its full width, in front of his lot, for the purposes of access, light, and air, which constitutes property, and which cannot be taken from him for public use without compensation; and therefore he may enjoin the construction and operation of an elevated railroad in the street, though authorized by the proper authorities, unless compensation is made for the tak- ing. 75 Protection of Patents, Copyrights, Literary Property, and Trade-Marks. Patents and copyrights are in themselves fully recognized at law, and an action at law for damages could always be maintained for their infringement. 76 But it is evident that such a remedy supplies an exceedingly inadequate protection. Not only might the patentee or author be compelled to bring innumerable actions, and thus be ruined by interminable litigation, but in many cases damages, even if recovered, would afford an insufficient redress for the injury sus- tained. The business or the reputation might be impaired by the interference, pending the litigation, in a manner and to an extent 83 Ga. 187, 9 S. E. 677. Against deposit of sewage, Village of Dw'ight v. Hayes, 150 111. 273, 37 N. E. 218; Attorney General v. Leeds Corp., 5 Ch. App. 583; Oldaker v. Hunt, 6 De Gex, M. & G. 376. 75 Story v. New York El. R. Co., 90 N. Y. 122; Lahr v. Metropolitan El. Ry. Co., 104 N. Y. 268, 10 N. E. 528. The New York court of appeals has refused to apply this principle to the case of an ordinary "surface" railroad, Fobes v. Rome. W. & O. R. Co., 121 N. Y. 505, 24 N. E. 919; but it has been so applied by the supreme court of Minnesota, Adams v. Chicago, B. & N. R. Co., 39 Minn. 2S6, 39 N. W. 629; Lamm v. Chicago, St. P., M. & O. Ry. Co., 45 Minn. 71, 47 N. W. 455. 76 Action on the case is the proper legal action. Walk. Pat. § 418 et seq.; Stein v. Goddard, 1 McAll. (U. S.) 82, Fed. Cas. No. 13,353; Byam v. Bullard, 1 Curt. (U. S.) 100, Fed. Cas. No. 2,262. Cll. 13] INJUNCTIONS RELATING TO TORTS. 307 which no inquiry could ascertain." And, further, the facility for taking accounts afforded by equity, and yet more conspicuously its power of peremptorily stopping the infringement of the right by in- junction, plainly indicates the appropriateness of the jurisdiction of the court for dealing with such matters. 78 1. The federal courts are the only tribunals that have jurisdiction of questions directly affecting the validity or infringement of pat- ents. 79 To warrant the issue of a preliminary injunction, plaintiff must show both a prima facie title to the patent and a prima facie case of infringement. 80 If the validity of plaintiff's patent was de- nied, a trial at law was required by the earlier English decisions, unless plaintiff had been in the exclusive enjoyment for so long a period as to give rise to presumption of exclusive right. 81 The fed- eral courts, however, sitting in equity, hear the cause on the merits, and decide the question of validity and infringement, without any trial at law, 82 though they may, in their discretion, submit issues to a jury 83 2. A copyright is defined as the exclusive right of multiplying a work of literature after its publication. 84 It is now established that a copyright exists only by statute. 85 Before publication, an author has at common law a property right in his manuscript which will " Smith, Pr. Eq. p. 730; Hogg v. Kirby, 8 Ves. 223; 2 Story, Eq. § 930. 78 Smith, Pr. Eq. p. 730; Root v. Railway Co., 105 U. S. 189. ™parkhurst v. Kinsman, 6 N. J. Eq. GOO; Dudley v. Mayhew, 3 N. Y. 9; Slemmer's Appeal, 58 Pa. St. 155; Gaines v. Fuentes, 92 U. S. 17. so High, Inj. § 938; Standard Paint Co. v. Reynolds, 43 Fed. 304; Potter v. Whitney, 1 Lowell (U. S.) 87, Fed. Cas. No. 11,341; Parker v. Sears, 1 Fish. Pat. Cas. 93, Fed. Cas. No. 10J4S; American Fire Hose Manuf'g Co. v. Cor- nelius Callahan Co., 41 Fed. 50. si Hill v. Thompson, 3 Mer. 622; Caldwell v. Vanvlissengen, 9 Hare, 424. 82 McCoy v. Nelson, 121 U. S. 487, 7 Sup. Ct. 1000; Wise v. Grand Ave. R. Co., 33 Fed. 277; Buchanan v. Howland, 2 Fish. Pat. Cas. 341, Fed. Cas. No. 2,074. 83 Wise v. Grand Ave. R. Co., 33 Fed. 277; Sickles v. Gloucester Manuf'g Co., 1 Fish. Pat. Cas. 222, Fed. Cas. No. 12,841; Sanders v. Logan, 2 Fish. Pat. Cas. 1G7, Fed. Cas. No. 12,295. 84Jefferys v. Boosey, 4 H. L. Cas. 833; Stephens v. Cady, 14 How. 530; Baker v. Selden, 101 U. S. 99. ss Jefferys v. Boosey, 4 H. L. Cas. 833; Wheaton v. Peters, 8 Pet. U. S. 591; Clemens v. Belford, 14 Fed. 728. 308 EQUITABLE REMEDIES. [Ch. 13 be protected by courts of equity; but, by a publication, be dedicates it to the public, and loses bis property rights, unless he complies with the copyright laws. 86 The federal courts have exclusive jurisdic- tion as to all matters pertaining to statutory copyrights. 87 3. The author of an unpublished work of literature, science, or art is, of course, entitled to an injunction against its unauthorized pub- lication by others, whether he does or does not intend to seek profit by future publication. 88 The same principle applies to private let- ters, whether on literary subjects, or on matters of private business, personal friendship, or family concerns. The writer of private let- ters has such a qualified right of property in them as will entitle him to an injunction to restrain their publication by the person writ- ten to, or his assignees; 89 and the person written to has such a qualified right of property in the letters as will entitle him or his personal representatives to restrain their publication by a stranger. 90 As regards lectures, persons admitted as pupils or otherwise to hear them cannot publish them for profit, and will be restrained from so doing; 91 and, though they have been partly published by the lec- se Bartlett v. Crittenden. 5 McLean, 32, Fed. Cas. No. 1,076; Carte v. Duff, 25 Fed. 183; Clemens v. Beiford, 14 Fed. 728. 87 Drone, Copyr. 545. 88 Prince Albert v. Strange, 1 Macn. & G. 42; Grigsby v. Breckinridge, 2 Bush (Ky.) 480; Taige v. Banks, 13 Wall. 608. The leading case on the sub- ject is Prince Albert v. Strange. Her majesty, Queen Victoria, and the Prince Consort, had made certain etchings, and had certain lithographs struck off from them for their own use, and not for the purpose of publication. One of the impressions had been surreptitiously retained by one of the workmen employed in the operation, and had passed from his hands into the hands of a publisher, who declared his intention of publicly exhibiting the impression so improperly obtained, and also of selling a descriptive catalogue of the lithographs. Lord Cottenham restrained the publication of the catalogue, as well as the exhibi- tion of the impression, upon the ground that, as the etchings were the exclusive property of the plaintiff, no one had, without his consent, the right to make any use whatever of them, either by publishing a catalogue of them or other- wise. 89 Gee v. Pritchard, 2 Swanst. 418; Woolsey v. Judd, 4 Duer, 379; Denis v. Leclerc, 1 Mart. (La.) 297; Grigsby v. Breckinridge, 2 Bush (Ky.) 4S0. so Earl of Granard v. Dunkin, 1 Ball & B. 207; Thompson v. Stanhope, Amb. 737. oi Abernethy v. Hutchinson, 1 Hall & T. 28, 40, 3 Law J. Ch. 209; Caird v. Sime, 12 App. Cas. 32U; Bartlette v. Crittenden, 4 McLean, 300, Fed. Cas. No. 1,082. Ch. 13] INJUNCTIONS RELATING TO TORTS. 309 turer, he is entitled to an injunction against their publication by others in an incorrect and garbled form. 92 4. A trade-mark is a peculiar name or device by which a person dealing in an article designates it as of a peculiar kind, character, or quality, or as manufactured by or for him, and of which he is en- titled to the exclusive use. 93 The exclusive right to make such use or application is rightly treated as property, and no other dealer has the right to use the same mark on goods of the same description. By so doing, he would be substantially representing the goods to be the manufacture of the dealer who had previously adopted the mark or brand in question, and so would or might deprive him of the profit he might have made by the sale of the goods which the purchaser intended to buy. The jurisdiction of a court of equity, therefore, to restrain the infringement of a trade-mark, is founded, not upon the imposition upon the public practiced by the palming off, by one man, of his goods as the goods of another, but on the wrongful invasion of the right of property acquired in the trade-mark. 94 It therefore fol- lows that the fraudulent use of marks and labels for the purpose of deceiving the public will not be enjoined at the suit of persons who do not carry on any business to which the use of such marks and labels is incident; such as the officers and members of a labor organ- ization, which has adopted a label to designate goods manufactured by its members, as employe's of others. 95 A recent act of congress provides for the registration of trade- marks in the patent office, and gives a remedy, either by way of dam- »2 Drnmmond v. Altemus, 60 Fed. 338. ss Weener v. Brayton, 152 Mass. 101, 25 N. E. 4G; Rogers v. Taintor, 97 Mass. 291; Kerr, Inj. p. 394. 94 Leather Cloth Co. v. American Leather Cloth Co., 4 De Ges. J. & S. 137; Mitchell v. Henry, 15 Ch. Div. 191; Schneider v. Williams, 44 N. J. Eq. 391, 14 Atl. S12; Weener v. Brayton, 152 Mass. 101, 25 N. E. 46; U. S. v. Steffens, 100 U. S. 82. 95 Weener v. Brayton, 152 Mass. 101, 25 N. E. 46; Cigar Makers' Protective Union v. Conhaim, 40 Minn. 243, 41 N. W. 943; Schneider v. Williams, 44 N. J. Eq. 391, 14 Atl. 812. A fraudulent use of the union label may be enjoined by a manufacturer who has adopted it, and whose business is injured by the fraudulent use. Carson v. Ury (U. S. Cir. Ct. Mo.) 39 Fed. 777. Since these decisions have been made, statutes have been passed in many of the states protecting labels and trade-marks adopted by labor organizations. 310 EQUITABLE REMEDIES. [Ch. 13 ages or by injunction, in equity for their infringement; 96 but the right to trade-marks and the remedies for their infringement exist independent of this statute. 97 It has also been held that the state courts have jurisdiction in trade-mark cases, since the federal con- stitution does not place this matter within the control of congress, except, perhaps, by virtue of the power to regulate commerce. 98 Protection of Other than Property Rights. The English court of chancery had no power to grant injunctions except in cases where there was injury, either actual or prospective, to civil property. 99 It therefore possessed no jurisdiction to restrain, by injunction, the publication of a libel, or the making of slanderous statements calculated to injure a man in his business. 100 The judicature act of 1873, which abolished the ancient English courts, and substituted in their place the high court of justice, con- ferred on that court the power to grant injunctions whenever it shall appear to the court to be just and convenient. 101 Sir George Jessel, commenting on this provision, said: "Probably it is still true that, as a general rule, the court only interferes where there is some ques- tion as to property. I do not think that the interference of the court is absolutely confined to that now." 102 It has accordingly been held in England that, where a libel is calculated to injure plaintiff in his trade or business, an injunction may be granted; 103 and even an oral slander which is detrimental to the business of the plaintiff may be enjoined. 104 The American courts, however, have refused to follow these recent English decisions; and the publication of a libel, no 98 Act Cong. March 3, lo81. »7 L. H. Harris Drug Co. v. Stucky, 46 Fed. 624. 98 Smail v. Sanders, 118 Ind. 105, 20 N. E. 296; U. S. v. Steffens, 100 U. S. 82. 99 Huggensin's Case, 2 Atk. 469, 488; Gee v. Pritchard, 2 Swanst. 402, 413; Seeley v. Fisher, 11 Sim. 581, 583; Fleming v. Newton, 1 H. L. Cas. 363, 371, 37G; Emperor of Austria v. Day, 3 De Gex, F. & J. 217, 238-241; Kerr, Inj. p. 1. ioo Prudential Assur. Co. v. Knott, 10 Ch. App. 142. ioi Act 36 & 37 Vict. c. 66, § 25, subsec. 8. 102 Aslatt v. Corporation of Southampton, 16 Ch. Div. 148. 103 Thorley's Cattle Food Co. v. Massam, 14 Ch. Div. 763; Quartz Hill Con. G. Min. Co. v. Beall, 20 Ch. Div. 501; Hill v. Hart-Davies, 21 Ch. Div. 798; Hayward v. Hayward, 34 Ch. Div. 198. ioi Loog v. Bean, 26 Ch. Div. 366. Ch. 13] INJUNCTIONS RELATING TO TORTS. 311 matter how injurious to plaintiffs business, will not be enjoined, — partly because the jurisdiction of equity does not extend to false representations as to the character or quality of plaintiffs' property or as his title thereto, which involve no breach of trust or of con- tract, and partly because to grant such an injunction would result in establishing a censorship over the press, in violation of the consti- tutional provision guarantying freedom of speech and of the press. 105 But if the publication is not only libelous, but is intended to frighten away plaintiff's customers, and intimidate them from dealing with him, an injunction against its circulation will be granted. 106 A recent decision by a New York court, though not one of last resort, warrants a doubt as to whether the jurisdiction of courts of equity, even in this country, is "absolutely confined" to the protec- tion of civil property. The exhibition of a statue of a deceased per- son, as a typical philanthropist, was enjoined at the suit of her relatives, on the sole ground that such exhibition would cause them mental pain, distress, and disgrace, for which no damages would afford any remedy. 107 In a still more recent case, however, the federal circuit court for the district of Massachusetts refused to enjoin the publication of the biography of a deceased inventor, not libelous or scandalous in its nature, though the publication injured the feelings and was undertaken against the express prohibition of his widow and children. 108 It is worthy of note, in this connection, that as far back as Lord Eldon's time it was the settled doctrine of equity that injury to feelings was no ground for injunctive relief. 109 105 Kidd v. Horry, 28 Fed. 773; Boston Diatite Co. v. Florence Manuf'g Co., 114 Mass. 09; Whitehead v. Kitson, 119 Mass. 484; Mayer v. Association, 47 N. J. Eq. 519, 20 Atl. 492; New York, J. G. Soc. v. Roosevelt, 7 Daly, 188; Brandreth v. Lance, 8 Paige (N. Y.) 24; Singer Manuf'g Co. v. Domestic S. M. Co., 49 Ga. 70. loe Threats to prosecute plaintiff's customers for infringement of patent, Emack v. Kane, 34 Fed. 47; Grand Rapids School Furniture Co. v. Haney School Furniture Co., 92 Mich. 558, 52 N. W. 1009; Shoemaker v. South Bend Spark Arrester Co., 135 Ind. 471, 35 N. E. 380; boycotting circulars, Casey v. Cincinnati Typographical Union, 45 Fed. 135. 107 Schuyler v. Curtis, G4 Hun, 594, 19 N. Y. Supp. 264. los Corliss v. E. W. Walker Co., 57 Fed. 434. loo In Gee v. Pritchard (1818) 2 Swanst. 402, where the author of private let- ters sought to enjoin their publication by the i receiver, plaintiff's counsel in 312 EQUITABLE REMEDIES [Ch. 13 INJUNCTIONS RELATING TO TRUSTS AND EQUITABLE RIGHTS. 193. Equity will restrain the breach of a trust or confi- dence, or the violation of an equitable right, -whenever the circumstances are such that the aid of an injunction is re- quired. Heretofore we have been considering rights recognized by courts of law, and in which the ground of jurisdiction is the superiority of the equitable over the legal remedy. We now come to consider a class of cases where the wrong restrained is one which is regarded as such in equity only, and in which, accordingly, the ground of the jurisdiction is the absence of a legal remedy. A very wide range of subjects falls under this subdivision, and it will be impossible to do more than mention the most conspicuous examples. A trustee may not use the power which the trust confers on him at law, except for the legitimate purposes of the trust. If he at- tempts to do so, equity will restrain him by injunction from making a wanton exercise of his legal powers. 110 So, also, the court has juris- diction to restrain by injunction one or more members of a partner- ship from doing acts inconsistent with the terms of the partnership agreement, or with the duties of a partner, though a dissolution is not sought. 111 Equity will restrain a corporation, at the suit of a stockholder, from doing acts beyond the authority conferred on it argument stated that an attempt would be made to sustain the injunction, on the LTounrl that the publication of the letters will be painful to the feelings of plaintiff. "The Lord Chancellor: I will relieve you also from that argument. The question will be whether the bill has stated facts of which the court can take notice, as a case of civil property, which it is bound to protect. The in- junction cannot be maintained on any princ'ple of this sort: that, if a letter has been written in the way of friendship, either the continuance or discontinuance of that friendship affords a reason for the interference of the court." The in- junction was finally sustained, on the ground that the publication of the letters by the receiver was an invasion of the property rights of the author. no Balls v. Strutt, 1 Hare, 14G; Cohen v. Morris, 70 Ga. 313; Davis v. Browne, 2 Del. Ch. 188. in Fairthorne v. Weston, 3 Hare, 387; Rutland Marble Co. v. Ripley, 10 Wall. :;:»; Xew v. Wright, 44 Miss. 202. Ch. 13] AND EQUITABLE RIGHTS. 313 by its charter, or from violating the duties which in equity attach to the relation of directors and stockholders inter se. 112 To the ex- tent that public officers and public bodies are trustees either of franchises or property for the benefit of the public, they are ame- nable to the jurisdiction of courts of equity in the administration of such trusts, — at the suit of the people if the people of the state at large are cestuis que trustent, or of the particular municipality interested, or of individuals having a special interest in the execu- tion of the trust, or in preventing the acts sought to be enjoined. 113 Again, where a negotiable instrument is invalid as between the par- ties, the maker is entitled to an injunction against its negotiation by the payee to an innocent holder, whereby the defense would be lost; 114 and so with corporate stock and other securities not strictly negotiable. 115 112 Hawes v. Oakland, 104 U. S. 450; Gamble v. Queens County Water Co., 123 N. Y. 91, 98, 99, 25 N. E. 201; Wiswell v. First Cong. Church, 14 Ohio St. 31; Small v. Minneapolis Electric Matrix Co., 45 Minn. 264, 267, 47 N. W. 797. us People v. Canal Board of New York, 55 N. Y. 390, 394; Greene v Mum- ford, 5 R. I. 472. ii4 Metier v. Metier, 18 N. J. Eq. 270; Moeckly v. Gorton, 78 Iowa, 202, 42 N. W. 648; Wilhelmson v. Bentley, 25 Neb. 473, 41 N. W. 387; Hinkle v. Mar- gerum, 50 Ind. 240; Hile v. Davison, 20 N. J. Eq. 229. lis King v. King, 6 Ves. 172. ul4 REFORMATION, CANCELLATION, AND QUIETING TITLE. [Ch. 14 CHAPTER XIV. REFORMATION, CANCELLATION, AND QUIETING TITLE. 194. Reformation 195. Cancellation. 190. Removing Cloud on Title. REFORMATION. 194. Equity will reform a -written contract or other in- strument inter vivos where, through mutual mistake, or mistake of one of the parties accompanied by the fraud of the other, it does not as written truly express the agree- ment of the parties. Courts of common law could declare a written instrument either valid or invalid. If invalid, they could set it aside altogether; and, if valid, they could construe and enforce it as written; but they pos- sessed no power of rectifying it to conform to the intention of the parties. Hence arose the equitable jurisdiction of reformation. Equity, which always regards the intention of the parties rather than the form in which they have expressed it, did not scruple from the earliest times to rectify written contracts and other instruments inter vivos to make them correspond with the real meaning and in- tention of the parties. 1 To warrant this relief, however, the mistake in reducing the agreement to writing must be mutual, 2 or there must be mistake of one party and fraud in the other in taking advantage i One of the earliest cases on record is thus stated in Toth. 131 (37 Eliz.): A lease was to be made excepting the woods, but the clerk drew the deed so that it made no mention of woods, though it did refer to some exception; and, on the lessee commencing to cut, he was enjoined not to do so. 2 Holabird v. Burr, 17 Conn. 559; Murphy v. Rooney, 45 Cal. 78; Hancock v. Cossett, 45 Fed. 754; Canedy v. Marcy, 13 Gray (Mass.) 373. Mistake of one party only is no ground for relief when the contract is written just as it was understood and intended by the other. Paine v. Jones, 75 N. Y. 593. See, also, ante, 127, "Mistake," etc. Ch. 14] CANCELLATION. 315 of that mistake, and obtaining a contract with knowledge that the one dealing with him is in error in regard to what are its terms. 3 The reformation of a written contract, which is the highest and most solemn evidence of the agreement of the parties, will not be granted, unless the proof of mistake or fraud is clear and definite ; 4 and a complainant who asks that a part of the stipulation be permit- ted to stand, and a part altered or stricken out, must produce stronger proof than is required from one who disowns the contract in its entirety, on the ground of fraud or undue influence. 5 CANCELLATION. 195. Equity -will cancel a written instrument: (a) If, though utterly void, it is apparently valid on its face. (b) If it is voidable on the ground of fraud or mistake, as heretofore explained. Courts of common law would, of course, not enforce a void or void- able instrument; but they "pursued a policy of masterly inactivity," and would grant a party executing it no affirmative relief until a suit was brought thereon. Equity, however, acting on the ground that such an instrument might be vexatiously used, when, by lapse of time, the evidence of its void or voidable character might be lost, took upon itself to order its cancellation. 8 1. With respect to an instrument absolutely void, the rule is that where the illegality is apparent on its face, so that its nullity can ad- mit of no doubt, equity will not interfere. 7 Such a document is plainly innocuous; no lapse of time can add to its power so as to s Bryce v. Lorillard Fire Ins. Co., 55 N. Y. 240, 243; Welles v. Yates, 44 N. Y. 525, 529; Winans v. Huyck, 71 Iowa, 459, 32 N. W. 422; Higgins v. Parsons, 65 Cal. 2S0, 3 Pac. 881; James v. Cutler, 54 Wis. 172, 10 N. W. 147. *Henkle v. Royal Exch. Assur. Co., 1 Ves. Sr. 31S; Turner v. Sbaw, 96 Mo. 22, 8 S. W. 897; Sable v. Maloney, 48 Wis. 331, 4 N. W. 479; Ford v. Joyce, 78 N. Y. 618; Muller v. Rhuman, 62 Ga, 332. e Harding v. Long, 103 N. C. 1, 9 S. E. 445. « Underh. Eq. p. 215. i Peirsoll v. Elliott, 6 Pet 95; Town of Venice v. Woodruff, 62 N. Y. 462, 468; Town of Springport v. Teutonia Sav. Bank, 75 N. Y. 397, 402. 316 REFORMATION, CANCELLATION, AND QUIETING TITLE. [Ch. 14 render it dangerous. Illustrations are supplied by instruments which on their face disclose an illegal consideration, or the fact that they have been fully satisfied. 8 But where the instrument, though in fact void, has the appearance of validity, the case is otherwise. TheD there exists a material danger, against which protection may reason- ably be sought. Thus, forged instruments have been ordered can- celed. 9 2. As to voidable instruments, it is not now necessary to repeat what has already been said, under the headings of "Fraud" and "Mis- take," respecting the circumstances which will give a person the option of avoiding his own acts; and the student is referred to these subjects, and to what has been said under the maxim, "He who comes into equity must come with clean hands," for information respecting the right of cancellation or rescission in such cases. 10 REMOVING CLOUD ON TITLE. 196. Whenever a deed or other instrument exists which may be vexatiously or injuriously used against a party after the evidence to impeach or invalidate it is lost, or which may throw a cloud or suspicion over his title or interest, and he cannot immediately protect or maintain his right by any course of proceedings at law, a court of equity will afford relief by directing the instrument to be delivered up and canceled, or by making any other decree which justice and the right of the party may require. 11 A suit to remove a cloud from title, like a suit for the concellation of documents, depends on the principle of quia timet; that is, the deed or instrument constituting the cloud may be used vexatiously, when, by lapse of time, the evidence of its void or voidable character s Simpson v. Howden, 3 Mylne & C. 97; Smyth v. Griffin, 13 Sim. 245; Threlfall v. Lunt, 7 Sim. 027. » Peake v. Highfield, 1 Russ. 559; Cooper v. Vesey, 20 Ch. Div. 612; Dunn v. Miller, 96 Mo. 324, 9 S. W. 640; Sharon v. Terry, 36 Fed. 337. io See ante, 38. ii Story, Eq. Jur. § 694; Martin v. Graves, 5 Allen (Mass.) 661; Dull's Ap- peal, 113 Pa. St. 510, 6 Atl. 540. Cll. 14] REMOVING CLOUD ON TITLE. 317 may be lost 12 Independent of statute, an action to remove a cloud from title can only be brought by plaintiff in possession, 13 since an owner of land out of possession may establish his title at law in ejectment. 14 In some of the states, however, statutes exist which permit the action to be brought by a plaintiff out of possession. 15 In analogy to the rule which obtains in action for cancellation and rescission, equity will not interfere to remove, as a cloud on title, an instrument void on its face; 16 and relief will only be granted when the hostile title is apparently good, but is really defective by some- thing not appearing on its face. 17 12 1 Fonbl. Eq. bk. 1, c. 1, § 8, note y. is u. S. v. Wilson, 118 U. S. 86, 6 Sup. Ct. 991; Moores v. Townshend, 102 N. Y. 387, 393, 7 N. E. 401. i* Wetherell v. Eberle, 123 111. 666, 14 N, E. 675. is Hatch v. Village of St. Joseph, 68 Mich. 220, 36 N. W. 36; Hyde v. Red- ding, 74 Cal. 493, 16 Pac. 3S0; Wilson v. Hooser, 72 Wis. 420, 39 N. W. 772. is Maloney v. Finnegan, 3S Minn. 70, 35 N. W. 723; Moores v. Townshend, 102 N. Y. 387, 393, 7 N. E. 401. 17 Beach, Eq. Jur. § 55S; Benner v. Kendall, 21 Fla. 584, 588; Rea v. Long- street, 54 Ala. 291; Davis v. Boston, 129 Mass. 377; Browning v. Lavendeiv 104 N. C. 69, 10 S. E. 77. 318 ANCILLARY REMEDIES. [Ch. 15 CHAPTER XV. ANCILLARY REMEDIES. 197. Discovery. 19S. Bills to Perpetuate Testimony. 199. Examination of Witnesses de Bene Esse. 200. Ne Exeat. 201. Interpleader. 202. Essential Elements. 203. Receivers. 204. In What Cases Receivers will be Appointed. The equitable remedies we have just considered have had for their object the adjudication of the rights of the parties and the award of final relief. We now come to consider a class of remedies which has for its object either the preservation of the property in controversy until the final termination of the litigation, or the acquisition of means by which the final rights of the parties can be more conveniently and perfectly adjusted. DISCOVERY. 197. A bill of discovery was a bill -which asked no re- lief, but simply for a discovery of facts resting in the knowledge of the defendant, or of deeds or writings in the possession or the power of the defendant; and the ob- ject of the discovery -was to maintain some action or other proceeding in a court of law. To maintain a bill of dis- covery, the action must already have been commenced at law, unless, indeed, the object of the discovery is to ascer- tain in fact who is a proper defendant at law. 1 At common law, the parties litigant, as well as all other interested persons, were incompetent to testify in the action. Jeremy Ben- tham, who described these rules of evidence as devised to exclude i Snell, Eq. p. 718; Angell v. Angell, 1 Sim. & S. 83; City of London v. Levy, 8 Ves. 404. Ch. 15] DISCOVERY. 319 the testimony of every one who was likely to know anything about the matter, was the first to point out that, as a rule, no witness ought to be disqualified on account of interest alone, and that the ob- jection to the evidence of an interested person ought to be treated, not as an objection to the reception of his evidence, but merely as detracting from its weight when received. It was not until 1851 that Mr. Bentham's views finally triumphed in England; 2 and the evils of the common-law rules of evidence would have been intolerable had it not been for the jurisdiction which equity assumed to grant dis- covery, and thus render the evidence of the parties litigant available. Whenever a defendant in an action at law desired to avail himself of facts known only to himself and the plaintiff, he would file his bill in equity, calling on plaintiff to answer on oath the interrogatories contained in it; and then the plaintiff, unless prepared to perjure him- self, was obliged by his answer to admit, though it might be with his own coloring, the substantial facts of the case. This answer, though not evidence in the ordinary sense, might then have been introduced in the action at law by defendant as an admission made by plaintiff, just as any letter written by him admitting relevant facts might have been given in evidence. In addition to the cases in which the object of the bill was to obtain an admission of facts exclusively within the knowledge of the parties litigant, there were many others in which the aim was to obtain a discovery and production of documents, — an object effected in equity by means of the ordinary interrogatory as to documents and subsequent motion for production. By these means the shortcomings of the law were in some measure remedied. Since, however, the admission of a third person could never be received in evidence against a party litigant, the assistance of equity could in no way be made available to supply the exclusion of persons disqualified because of interest, but not actually parties to the litigation; and the rule was perfectly settled that no bill of discovery lay against a mere witness. 3 Not only would equity grant discovery in aid of actions of law ; but whenever a suit was brought in equity, touching matters otherwise within its jurisdiction, defendant was compellable to answer inter- 2 St. 14 & 15 Vict c. 99, rendered interested persons competent as witnesses. Similar statutes exist in all the states. 3 Fenton v. Hughes, 7 Ves. 287; 2 Story, Eq. Jur. § 1499. 320 ANCILLARY REMEDIES. [Ch. 15 rogatories which were contained in the body of the bill; and com- plainant was likewise compellable to make discovery by means of cross interrogatories in the answer. 4 The question, of course, arises, what has been the effect of the stat- utes in England and the various states in this country removing the disqualification of parties and interested persons? The practical effect has everywhere been to render the technical bill of discovery in aid of an action at law obsolete. In England and in some of the states it has been held that a bill of discovery will not lie when full disclosure can be compelled in the action at law, 5 while other courts have held that the ancient equity jurisdiction still remains, under the rule that the jurisdiction once existing is not lost be- cause courts of law have subsequently acquired a like authority. 6 The principles, however, on which courts of equity acted in granting discovery are still important, partly because they form the basis of a system of statutory discovery in force in many of the states, and partly because they are the origin of some very important rules of evidence. Rules Respecting Discovery. There were three important rales respecting the right of discovery founded on public policy, which still survive in modern principles of evidence: (1) No man need discover matter tending to criminate < 2 Story, Eq. Jur. § 1483; Haynes, Eq. p. 118. s Anderson v. Bank of British Columbia, 2 Ch. Div. 644; Attorney General v. Gaskill, 20 Ch. Div. 519; Ex parte Boyd, 105 U. S. 657; Riopelle v. Doell- mer, 26 Mich. 105; Hall v. Joiner, 1 S. C. 190; Chapman v. Lee, 45 Ohio St. 356, 13 N. E. 736. « Post v. Toledo, etc., R. Co., 144 Mass. 341, 11 N. E. 540; Union Pass. Ry. Co. v. Mayor, etc., 71 Md. 238. 17 Atl. 933; Handley v. Heflin, 84 Ala. 600, 4 South. 725; Kearny v. Jeffries, 48 Miss. 357; Hoppock's Ex'rs v. United New Jersey R. & C. Co., 27 N. J. Eq. 286; Lancy v. Randlett, 80 Me. 169, 13 Atl. 6S6; Russell v. Dickeschied, 24 W. Va. 61. It should be observed, how- ever, that in these cases discovery was sought of facts exclusively within de- fendant's knowledge, and not of facts known to plaintiff, and to which he was incompetent to testify. The statutory systems of discovery in force in many of the states have also for their object the ascertaining of facts peculiarly within defendant's knowledge, and necessary to enable plaintiff to prove his case. Ch. 15] DISCOVERY. 321 himself, or to expose him to a penalty or forfeiture. 7 (2) 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 ; 8 nor will a mar- ried woman be compelled to disclose facts which might damage her husband. 9 (3) Official persons cannot be compelled to disclose any matters of state, the publication of which may be prejudicial to the community. 10 Other rules, still important to be borne in mind, are the following: Defendant must answer as to all facts material to 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. 11 It will be observed that de- fendant is not required to answer questions merely because they are material to the issue, but only because they are material to plain- tiff's case; for, although plaintiff is entitled to know what the de- fense is, and to have it verified on oath, he is not entitled to cross- examine the defendant as to the precise mode in which to estab- lish it. 12 All the foregoing rules also apply, when discovery is sought with respect to documents in defendant's possession. When required by plaintiff, defendant must set forth a list of all documents in his possession from which discovery of the matter in question can be obtained; and if it appears from the answer that the documents are in defendant's possession or power, and that they are of such character as to constitute proper matters of discovery within the ordinary rules, plaintiff will be given leave to inspect and copy them, i East India Co. v. Campbell, 1 Ves. Sr. 246; Claridge v. Hoare, 14 Ves. 59, 65; Saunders v. Wiel [1892] 2 Q. B. 321; Boyd v. U. S., 110 U. S. 616, 6 Sup. Ct. 524; State v. Simmons Hardware Co., 109 Mo. 118, 18 S. W. 1125; Horst- man v. Kaufman, 97 Pa. St. 147; Adams, Eq. p. 2. a Greenough v. Gaskell, 1 Mylne & K. 98; Jones v. Pugh, 1 Phil. Ch. 96; Parkhurst v. Lowten, 2 Swanst. 194, 216. » Le Texier v. Margrave of Anspach. 5 Ves. 322. io Smith v. East India Co., 1 Phil. Ch. 50. ii Story, Eq. PI. § 853; Mitf. Eq. PI. 357, 365. 12 Llewellyn v. Badeley, 1 Hare, 527; Haskell v. Haskell, 3 Cush. 542; Wil- son v. Webber, 2 Gray, 558; Norfolk & W. R. Co. v. Postal Tel. Cable Co., 88 Va. 932, 14 S. E. 689; Downie v. Nettleton, 61 Conn. 593, 24 Atl. 977. EQ JUR. — 21 322 ANCILLARY REMEDIES. [Cll. 15 and their production at the hearing of the cause will also be com- pelled. 18 The documents must be in defendant's possession or pow- er, 14 but for this purpose it is sufficient that they are admitted to belong to him, though they may be out of his actual custody. 15 The possession, therefore, of his solicitor or agent, or of any other person whose possession he can control, is equivalent to his own. 18 If, how- ever, a document is in the joint possession of the defendant and of some other person who is not before the court, its production will not be compelled. 17 BILLS TO PERPETUATE TESTIMONY. 198. The object of a bill to perpetuate testimony was to preserve evidence when it 'was in danger of being lost before the matter to which it related could be made the subject of a judicial investigation. 18 It sometimes happens that a person entitled presumptively to some future interest in property finds his title impeached or threat- ened by some other person interested in disputing it ; and yet, in con- sequence of the future or reversionary interest of that title, the law affords him no means of asserting or establishing it. Meanwhile, the very testimony on which his title depends may be in danger of perishing by the death of those who, if alive, would be able to give evidence in its support. Such cases strongly appealed to that maxim of equity which declares that it will not suffer a wrong without a remedy. And yet the exercise of a jurisdiction thus to perpetuate testimony was evidently subject to the strong objection that the depo- sitions so taken were not published until after the death of the wit- nesses. The evidence, therefore, was not given under the legal pen- alties attached to perjury. For this reason, chiefly, courts of equity is Adams, Eq. pp. 12, 13; Wisner v. Dodds, 14 Fed. 656. i* Hardman v. Ellames, 2 Mylne & K. 732. is Clinch v. Financial Corp., L. It. 2 Eq 271; Earl of Glengall v. Frazer, 2 Hare, 99. is Eages v. Wiswall, 2 Paige, 369; Robbins v. Davis, 1 Blatchf. 238, Fed. Cas. No. 11,880. it Edmonds v. Foley, 30 Beav. 282. is Snell, Eq. p. 721. Ch. 15] BILLS TO PERrETUATE TESTIMONY. 323 generally did not entertain such bills, except where it was absolutely necessary to prevent a failure of justice, 19 or where the preservation of the evidence would clearly tend to defeat future litigation, or to defeat such litigation if commenced. 20 If, therefore, it were possible that the matter in controversy could be made the subject of imme- diate judicial investigation by the party who sought to perpetuate the testimony, there was no reason for giving him the advantage of deferring his proceedings to a future time, and of substituting writ- ten depositions for viva voce evidence. 21 Hence suits to perpetuate testimony were rigidly confined to cases where the party who filed the bill could not bring the matter into immediate judicial investiga- tion, either because his title was in remainder, or because he himself was in possession of the property. 22 A mere expectanc}', as that of an heir at law, was not considered sufficient to sustain the bill; but any interest which the law would recognize, however small or remote, even though contingent, en- titled a party to the relief. 23 So, also, a bill to perpetuate testimony was allowed only where some right to property was involved, as distinguished from an office or dignity. 24 The perpetuation of testi- mony is now regulated by statutes in most of the states, and inde- pendent suits in equity are no longer resorted to for this purpose; but the principles on which courts of equity acted form the basis of most of the statutes on this subject, and hence they are still im- portant. 25 is Angell v. Angell, 1 Sim. & S. 83; Booker v. Booker, 20 Ga. 781. 20 Brooking v. Maudslay, 38 Ch- Div. 63G. 2i Ellice v. Roupell, 32 Beav. 299. 22 Booker v. Booker, 20 Ga. 781; Baxter v. Farmer, 7 Ired. Eq. 239; Earl Spencer v. Peek, L. R. 3 Eq. 415; Llanover v. Homfray, 19 Ch. Div. 224; Hall v. Stout, 4 Del. Ch. 269. 2 3 Dursley v. Fitzhardinge, 6 Ves. 251. 24 Townshend Peerage Case, 10 Clark & F. 289. St. 5 & 6 Vict. c. 69, ex- tends the right to perpetuate testimony in favor of persons having a mere expectancy to property, or to any dignity, honor, or title. 25 in the federal courts, depositions in perpetuam rei memoriam are directed to be taken according to the usages of chancery. Rev. St U. S. § 866. o24 ANCILLARY REMEDIES. [Ch. 15 EXAMINATION OF WITNESSES DE BENE ESSE. 199. Either party to a litigation actually pending, who •was under an apprehension either that, at the time of trial, important -witnesses abroad might still be there, or that important "witnesses of advanced years might then be dead, or that old or infirm witnesses might then be unable to travel, could file a bill in equity praying a commission to examine the -witnesses, and thus preserve their evidence for use at the trial, in case it was not then obtainable in the regular way. 26 Originally, common-law courts possessed no machinery for preserv- ing the testimony of witnesses described in the black-letter text, and the power was not conferred on them in England until 1830. 27 Stat- utes in all the states confer power on all courts of general original jurisdiction, whether of law or equity, to issue commissions for the examination of witnesses at home or abroad, and hence independent suits in equity have become obsolete. While bills de bene esse and bills to perpetuate testimony obviously resembled each other, there was this distinction: Bills de bene esse could be brought only during the pendency of an action, and not before; 28 and they might be maintained by a person not in possession of the property in dis- pute, as well as by a person in possession. 29 26 The phrase "de bene esse" is a term applied to such acts or proceedings as are done or permitted to take place in an action, but the validity or effect of which depends upon some subsequent act or fact, matter or proceeding. An examination of witnesses de bene esse is an examination of them out of court, before the trial, subject to the contingency of their death, removal, or inability to attend the trial, in which event such examination is good, and the deposition may be read in evidence on the trial; otherwise not. Grah. Pr. 584; 1 Burrill, Law Diet. (2d Ed.) 212, 447. 27 St. 1 Wm. IV. c. 22, § 1. 28 Angell v. Angell, 1 Sim. & S. 83; Howard v. Folger, 15 Me. 447. 29 Angell v. Angell, 1 Sim. & S. 83. Ch. 15] KE EXEAT. 325 NE EXEAT. 200. The -writ of ne exeat is a -writ issued by courts of equity to prevent a person from leaving the state until bail is given to obey the decree of the court. 30 The writ was originally applied only for political objects and purposes of state, and is now exercised for tlie protection of private rights with much caution and jealousy. 31 As a general rule, the writ is granted only in cases of equitable debts and claims, and operates in the nature of equitable bail. 32 The equitable demand must be cer- tain in its nature, and actually and presently payable, not contingent or prospective, 33 or unliquidated and uncertain. 34 In New Jersey, the writ may be granted before suit is actually pending. 35 To the rule that the writ will issue only in cases of equitable de- mands, there are two exceptions: (1) When alimony has been de- creed to a wife, the writ is procurable to restrain the husband from evading his obligation by leaving the state. 36 The alimony must, however, be actually decreed, and not appealed from. The writ could not be obtained while the case was still pending. 37 (2) When there is an admitted balance due from defendant to plaintiff, but the plain- tiff claims a larger sum, he may be assisted by the writ. 38 This case is brought within the purview of equity by its jurisdiction in mat- ters of account. 39 so Cable v. Alvord, 27 Ohio St. 666; Gresham v. Peterson, 25 Ark. 377; Mitchell v. Bunch, 2 Paige, 617. si Story, Eq. Jur. §§ 1465, 1467. 32 Bonesteel v. Bonesteel, 28 Wis. 245; Allen v. Hyde, 2 Abb. N. C. 197; Rice v. Hale, 5 Cush. 241; Malcolm v. Andrews, 68 111. 100. ss Anon., 1 Atk. 521; Rico v. Gualtier, 3 Atk. 500. 34 Etches v. Lance, 7 Ves. 417; Cock v. Ravie, 6 Ves. 283. ss Clark v. Clark (N. J. Ch.) 26 Atl. 1012. se Read v. Read, 1 Ch. Cas. 115; Shaftoe v. Shaftoe, 7 Ves. 171; Denton v. Denton, 1 Johns. Ch. 364. 3T Dawson v. Dawson, 7 Ves. 173; Colverson v. Bloornfield, 29 Ch. Div. 341. ss Jones v. Sampson, 8 Ves. 593; Jones v. Alephsin, 16 Ves. 471; McGehee v. Polk, 24 Ga. 406; Porter v. Spencer, 2 Johns. Ch. 169, 171. 39 Allen v. Smith, 16 N. Y. 418, 419; MacDonough v. Gaynor, 18 N. J. Eq. 249. 326 ANCILLARY REMEDIES. [Ch. 15 INTERPLEADER. 201. Where two or more persons, between whom there is privity of title, claim the same thing, debt, or duty from a third person, such third person, if he does not himself claim any interest in the matter, and has incurred no in- dependent liability to any of them, may exhibit a bill of interpleader against them, stating their several claims and his own position in regard to the matter, and praying that the claimants may interplead, so that the court may ad- judge to whom the thing, debt, or duty belongs; and, if any suits at law had been brought against him, he might also have prayed that the claimants might be restrained from those suits or actions till the right was determined. 40 The remedy of interpleader existed also at common law, but it had a very narrow range of application, lying only in cases where posses- sion had arisen from accident or bailment. Equity, therefore, has jurisdiction because of the double claim made on the complainant giving rise to a multiplicity of actions. 41 It is not necessary that suit should have been actually commenced against complainant, and it is sufficient that conflicting claims have been made against him, and that he is in danger of being molested. 42 But after judgment at law, and after the right is thus determined, a. court of equity cannot interfere upon the footing of interpleader. 43 The right to file a bill of interpleader in equity exists, though both claims are legal, or one is legal and the other is equitable. 44 In many of the states, statutes now exist permitting a defendant sued on contract, or for specific real or personal property, who claims no « Mitf. Eq. PL 58, 59; Adams, Eq. p. 202. 4i Crawford v. Fisher, 1 Hare, 43G, 441 ; School District No. 1 v. Weston, 31 Mich. 85; Angell v. Hadden, 15 Ves. 244. 42 Angell v. Hadden, 15 Ves. 244; Gibson v. Goldthwaite, 7 Ala. 281; Yar- brough v. Thompson, 3 Smedes & M. (Miss.) 291; Providence Bank v. Wilkin- son, 4 R. I. 507. 43 Yarbrough v. Thompson, 3 Smedes & M. (Miss.) 291; McKinney v. Kukn, 59 Miss. 18G; Larabrie v. Brown, 20 Law J. Eq. 005. 44 Morgan v. Marsack, 2 Mer. 107; Lowndes v. Cornford, 18 Ves. 299. Ch. 15] INTERPLEADER. 327 interest id the subject-matter, to apply to the court to substitute in his place a third person who makes against him a demand for the same debt or property. 45 The principles governing this statutory right of interpleader are in the main the same as those which con- trolled courts of equity, independent of statutes, and they will now be considered. SAME— ESSENTIAL ELEMENTS. 202. Independent of statute, the following conditions must exist to give a right to an interpleader in equity: (a) The same thing, debt, or duty must be claimed by both the persons against whom the relief is asked. (b) Privity of title must exist between the claimants. (c) The party seeking relief must claim no interest in the matter. (d) He must have incurred no independent personal liability to either claimant. 46 1. The same thing, debt, or duty must be claimed by both claim- ants. If the subject of dispute has a bodily existence, no difficulty can arise as to identity. Where, however, the subject-matter is a chose in action, it becomes necessary to determine what is iden- tity, and this is a question attended occasionally with much diffi- culty, and which in each case must be determined by the original nature and constitution of the debt. 47 Thus, a purchaser of goods who has accepted a draft drawn on him by a bank for the purpose of placing it in funds to meet the purchase price, but which funds were never so applied, because the bank became insolvent, cannot compel the seller of the goods and a bona fide holder of the draft to interplead, since one claims for goods sold and the other on the draft. 48 The amount in dispute need not, however, be iden- 45 Civ. Code N. Y. § 820. The same statute, in substance, is enacted in all the code states. « Adams, Eq. p. 203; 3 Pom. Eq. Jur. § 1322. 47 Adams, Eq. p. 203. 48 Bassett v. Leslie, 123 N. Y. 396, 25 N. E. 3SG. So, also, where a purchaser of goods was sued by the seller for the price, and was also sued in trover by 328 ANCI. l.AKY REMEDIES. [Cll. 15 ti« :al. 49 Thus, a landowner whose property has been taxed in differ- ent amounts by two towns may maintain an interpleader to compel them to litigate wldch one has jurisdiction to levy the tax, notwith- standing the difference in amount. 50 2. There must be privity of title between the claimants. They must derive title from a common source, or one must derive title from the other. Where there was no privity of title between the claimants of the thing, debt, or duty, equity would afford no relief to the person holding the property, but he was compelled to defend himself as well as he could at law. Equity refused to interfere in such a case, because it would not assume the right to try merely legal titles upon a controversy between different parties, where there was no privity of contract between them and the third per- son who called for the interpleader. 51 This rule has been criticised, and the proposition has been advanced that complainant need only show that he cannot determine, without hazard to himself, to which of the claimants the property belongs. 52 Under the statutes here- tofore cited, it would seem that privity of title is unnecessary. 3. Complainant must claim no interest in the subject-matter. He must be a mere stakeholder, entirely indifferent between the con- flicting claimants. 53 Hence one who claims a commission out of the property .or fund in his possession, or a lien thereon, cannot 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. One was endeavoring to obtain the price of the goods, and the other damages for their conversion. Glyn v. Duesbury, 11 Sim. 139. Other cases involving Identity of subject-matter: Wilkinson v. Searcy, 74 Ala. 243; Blue v. Watson, 59 Miss. G19; Dodd v. Bellows, 29 N. J. Eq. 127; City Bank v. Bangs, 2 Paige, 570. « School Dist. No. 1 v. Weston, 31 Mich. 85; Newhall v. Kastens, 70 111. 156. Contra, Glyn v. Duesbury, 11 Sim. 139, 148. so Dorn v. Fox, Gl N. Y. 2G4. si Story, Eq. Jur. § 820; Third Nat. Bank v. Skillings Lumber Co., 132 Mass. 410; Pearson v. Cardon, 2 Russ. & M. G06, 609-612; Crawshay v. Thorn- ton, 2 Mylne & C. 1, 19-24. B2 See Crane v. McDonald, 118 N. Y. G48, 23 N. E. 991. 03 Wing v. Spaulding, G4 Vt. 83, 23 Atl. 615; Baltimore & O. R. Co. v. Arthur, 90 N. Y. 234; Appeal of Bridesburg Manuf'g Co., 10G Pa. St. 275; Killian v. Ebbinghaus, 110 U. S. 508, 4 Sup. Ct. 232; Williams v. Matthews, 47 N. J. Eq. 196, 20 Atl. 201; Sprague v. West, 127 Mass. 471. Ch. 15] INTERPLEADER. 329 maintain a bill of interpleader. 54 So, also, one who is not in pos- session of the property which is the subject of claim, or who has put one of the claimants in possession, cannot maintain a bill of interpleader. 65 4. Complainant must not have incurred any independent personal liability to either claimant. 58 Thus, a sheriff who seizes property by virtue of an execution cannot compel a claimant of the property to interplead with the execution creditor, since the sheriff has incurred a liability to the claimant if it should turn out that the property is his. 57 So, also, where a tenant is sued by his landlord, or an agent by his principal, a claim by a third person adverse to the landlord or principal will not warrant a bill of interpleader, 58 unless it originates in the landlord's or principal's own act, done after the commencement of the tenancy or agency, creating a doubt as to who is the true landlord or principal to whom the tenancy or agency refers. 39 In like manner, a bill of interpleader will not lie if the party seeking relief has acknowledged title in one of the claimants, and has thus incurred an independent liability to him. 60 54 Crass v. Memphis & C. R. Co., 96 Ala. 447, 11 South. 480; Mitchell v. Hayne, 2 Sim. & S. 63. 53 Burnett v. Anderson, 1 Mot. 405; Killian v. Ebbinghaus, 110 U. S. 56S, 4 Sup. Ct. 232; Stone v. Reed, 152 Mass. 179, 25 N. E. 49; Mt. Holly, L. & M. Turnpike Co. v. Ferree, 17 N. J. Eq. 117. 56 Crawshay v. Thornton, 2 Mylne & C. 1, 19; Cullen v. Dawson, 24 Minn. 66; National Ins. Co. v. Pingrey, 141 Mass. 411, 6 N. E. 93; Wakeman v. Kingsland, 46 N. J. Eq. 113, 18 Atl. 680; Tyus v. Rust, 37 Ga. 574. 5T Slingsby v. Boulton, 1 Ves. & B. 334; Shaw v. Coster, 8 Paige (N. Y.) 339. Statutes in most of the states give a claimant of property seized on execution the right to intervene and litigate his title with the execution creditor. ss Dungey v. Angove, 2 Ves. Jr. 304; Snodgrass v. Butler, 54 Miss. 45; De Zouche v. Garrison, 140 Pa, St. 430, 21 Atl. 450. These cases rest on the ground that the tenant or the agent is estopped to deny the title of his land- lord or of his principal. 69 Cowtan v. Williams, 9 Ves. 107; Gibson v. Goldthwaite, 7 Ala. 281; Ketcham v. Brazil Block Coal Co., 88 Ind. 515. eo Crawshay v. Thornton, 2 Mylne & C. 1, 19-24; Jew v. Wood, Craig & P. 185; Pfister v. Wade, 56 Cal. 43. ooU ANCILLARY REMEDIES. [Cll. 15 RECEIVERS. 203. A receiver is an indifferent person between the parties, appointed by a court of equity to take charge of the fund or property in controversy, when it does not seem proper that either party should retain it. 61 Unlike discovery and kindred ancillary remedies, the law of re- ceivers is a subject of growing importance, and it furnishes one of the most remarkable examples of the expansive powers of equita- ble remedies. Though of English origin, the remedy has been largely developed in this country, chiefly during the past quarter of a century. The object of a receivership is to preserve the fund or property from removal beyond the jurisdiction, or from spoliation, waste, or deterioration, pending litigation or during the minority of infants; ° 2 and in this respect it resembles the interlocutory in- junction. The receiver is an ollficer of the court appointing him, and not an agent of the parties. 03 His possession is the possession of the court, 64 and any attempt to disturb it is a contempt punish- able as such. 65 The appointment of a receiver, like the granting of an interlocu- tory injunction, determines nothing as to the ultimate rights of the parties; 68 and, in dealing with an application for the appointment 6i Booth v. Clark, 17 How. 322; Baker v. Bachus' Adm'r, 32 111. 79; Chautauque Co. Bank v. White, 6 Barb. 589; High, Ilec § 1; Beach, Rec. § 1; Kerr, Rec. p. 2. 02 Myers v. Estell, 48 Miss. 401; Taylor v. Philadelphia & R. R. Co., 7 Fed. 385; Ellis v. Boston, H. & E. R. Co., 107 Mass. 28; Beverley v. Brooke, 4 Grat. 187. 63 Davis v. Duke of Marlborough, 2 Swanst. 125; Davis v. Gray, 16 Wall. 218; Hooper v. Winston, 24 111. 353; Morrill v. Noyes, 56 Me. 463. « Ellicott v. Warford, 4 Md. 85; Runyon v. Farmers' & M. Bank, 4 N. J. Eq. 480. eo Beverley v. Brooke, 4 Grat 1S7, 211; Hazelrigg v. Bronaugh, 78 Ky. 62; Chafee v. Quidnick Co., 13 R. I. 442; Secor v. Toledo, P. & W. R. Co., 7 Biss. 513, Fed. Cas. No. 12,605. ee Hugonin v. Basely, 13 Ves. 107; Beverley v. Brooke, 4 Grat 208; Ellis v. Boston, H. & E. R. Co., 107 Mass. 1; Ex parte Dunn, 8 Rich. (N. S.) 207; Chase's Case, 1 Bland, 206-213; Leavitt v. Yates, 4 Edw. Ch. 162. Ch. 15] RECEIVERS. 331 of a receiver, it is the duty of the court to confine itself strictly to the point upon which it is called upon to decide, and not to go into the merits of the cause. 67 The appointment of a receiver is said to be discretionary with the court; 68 but, in exercising that discretion, the court is controlled by these two principles: (1) Plaintiff must show that he has either a clear right to the property itself, or that he has some lien upon it, or that the property constitutes a special fund to which he has a right to resort for the satisfaction of his claim. (2) Plaintiff must further show that defendant obtained possession of the property by fraud, or that the property itself, or the income arising from it, is in danger of loss from the neglect, waste, misconduct, or insolvency of the defendant. 69 SAME— IN WHAT CASES RECEIVERS WILL BE APPOINTED. 204. Subject to the foregoing rules, a receiver will be appointed: 70 (a) Where the person entitled to the possession of property pending a litigation or a judicial pro- ceeding is incompetent to manage or care for it; as in the case of infants, lunatics, etc. (b) Where each of the parties litigant is equally enti- tled to possession, but the circumstances are such that it is not proper for either of them to retain control; as in the case of litigation between part- ners, cotenants, etc. (c) Where the party entitled to the possession of prop- erty pending litigation is misapplying or spoliat- es Skinners' Co. v. Irish Soc, 1 Mylne & C. 164. es Skip v. Harwood, 3 Atk. 564; Sage v. Memphis & L. R. 11. Co., 125 U. S. 361, 8 Sup. Ct 887; Chicago & A. O. & M. Co. v. United States Petroleum Co., 57 Pa. St 83; Ashurst v. Lehman, 86 Ala. 371, 5 South. 731. 69 Mays v. Rose, Freem. Ch. (Miss.) 703; Ellett v. Newman, 92 N. C. 519; Blondheim v. Moore, 11 Md. 365; Ashurst v. Lehman, 86 Ala. 371, 5 South. 731; Elwood v. Bank, 41 Kan. 475, 21 Pac. 673; Bainbrigge v. Baddeley, 3 Macn. & G. 413; Owen v. Homan, 3 Macn. & G. 378, 412. 703 Pom. Eq. Jur. §§ 1332-1334. 332 ANCILLARY REMEDIES. [Cll. 15 ing it, to the detriment of the other party claim- ing an equitable interest therein. (d) By virtue of statute, in proceedings to dissolve and wind up corporations. (e) To reach property of a judgment debtor which can- not be seized on execution. 1. The court will, upon a proper case being made out, protect the estate of an infant by appointing a receiver; as, where no guardian exists, 71 or where the parent of the infant, in possession of his prop- erty, is squandering it 72 So, also, in the case of a lunatic, where the person appointed as guardian or committee declines to act. 73 It was also the practice of courts of chancery to appoint a receiver of a decedent's estate pending litigation to probate his will ; 74 but now the practice has fallen into disuse, because courts of probate have been empowered by statute to appoint a special administrator during such a contest. 2. A receiver of a partnership will be appointed, pending a suit for dissolution, where it appears that complainant is probably enti- tled to the dissolution, and the partners cannot agree among them- selves as to the disposition and control of the firm property. 75 So, also, after a dissolution of the firm, whether by mutual agreement or by the death of one of its members, a receiver will be appointed where it appears that the partners in possession are misconducting themselves, or that the assets are in peril. 76 As between tenants in common, the general rule is that a receiver will not be appointed 7i Hicks v. Hicks, 3 Atk. 273. 72 Butler v. Freemau, 1 Amb. 303; In re Cormicks, 2 Ir. Eq. 264. 73 Ex parte Warren, 10 Ves. 621. Also, after lunatic's death, receiver will be appointed until determination of question as to who is entitled to estate. In re Colvin, 3 Md. Ch. 288. 74 King v. King, 6 Ves. 172; Atkinson v. Henshaw, 2 Ves. & B. 85. 75 McElvey v. Lewis, 76 N. Y. 373; Jordan v. Miller, 75 Va. 442; New v. Wright, 44 Miss. 202; Allen v. Hawley, 6 Fla, 164; Barnes v. Jones, 91 Ind. 161. Wrongful exclusion of one partner from management of firm is ground for a receiver. Const v. Harris, 1 Turn. & R. 517; Katz v. Brewington (Md.) 20 Atl. 139. 76 Word v. Word, 90 Ala. 81, 7 South. 412; Bufkin v. Boyce, 104 Ind. 53, 3 N. E. 615. Ch. 15] RECEIVERS. 333 unless one excludes the other from the possession and enjoyment of the property; 77 but, as between tenants in common of mining prop- erty, a more liberal rule prevails. 78 3. The court may, on a proper showing, dispossess an executor or trustee, and appoint a receiver, but it will not do so on slight grounds. 79 Misconduct, waste of trust property, and insolvency have been held sufficient grounds. 80 In England, and those states where the legal title to real estate vests in the mortgagee, a receiver will not be appointed at his in- stance to take possession of the mortgaged premises and of the rents and profits, since he can recover them in ejectment; 81 but, in those states where a mortgage is regarded as a mere lien on the land, the mortgagee is entitled to a receiver, pending foreclosure proceedings, where the mortgaged premises are an inadequate se- curity, the mortgagor is insolvent, and there is good reason to believe that the premises will be wasted or deteriorated in his hands. 82 On similar principles, — insolvency of the mortgagor and the in- adequacy of the security, — a court of equity will, at the suit of bondholders secured by mortgage on the property of a railroad com- pany, appoint a receiver in aid of the foreclosure proceedings. 83 And in these cases the functions and duties of the receiver are not merely to keep the property in his custody, but to operate and manage it until 77 Norway v. Rowe, 19 \ T es. 159; Williams v. Jenkins, 11 Ga. 595; Pierce v. Pierce, 55 Mich. 629, 22 N. W. 81; Baughman v. Reed, 75 Cal. 319, 17 Pac. 222; Low v. Holmes, 17 N. J. Eq. 150; Vangban v. Vincent, 88 N. C. 116; Varnum v. Leek, 65 Iowa, 751, 23 N. W. 151. 78 Jefferys v. Smith, 1 Jac. & W. 298; Parker v. Parker, 82 N. C. 165. 79 Smith v. Smith, 2 Younge & C. Exch. 361; Haines v. Carpenter, 1 Woods, 265, 266, Fed. Cas. No. 5,905; Hill v. Arnold, 79 Ga. 367. so Anon., 12 Ves. 4; Stairley v. Rabe, McMul. Eq. (S. C.) 22; Price's Ex'r v. Price's Ex'rs, 23 N. J. Eq. 428; Calhoun v. King, 5 Ala. 525; Hagenbeck v. Hagenbeck Zoological Arena Co., 59 Fed. 14. si Berney v. Sewell, 1 Jac. & W. 648; Sturch v. Young, 5 Beav. 557; Williams v. Robinson, 16 Conn. 517. 82 Lowell v. Doe, 44 Minn. 144, 46 N. W. 297; Hollenbeck v. Donnell, 94 N. Y. 342; United States Trust Co. v. New York, W. S. & B. R. Co., 101 N. Y. 483, 5 N. E. 316; Schreiber v. Carey, 48 Wis. 208, 4 N. W. 124. ss Mercantile Trust Co. v. Missouri, K. & T. R. Co., 36 Fed. 221; Pennsyl- vania Co. for Insurance on Lives v. American Trust Co., 2 U. S. App. 606, 5 C. C. A. 53, and 55 Fed. 131; High, Rec. § 376 et seq. 334 ANCILLARY REMEDDCS. [Ch. 15 the litigation is finally terminated, being subject to all the responsi- bilities of a common carrier. 84 In exceptional cases, courts of equity have even authorized the receiver to extend and complete lines of road, when necessary to save a land grant or to the successful operation of the road. 85 One remarkable result of this extension of the powers of receivers should be noticed in this connection: The indebtedness incurred by the receiver, in thus operating and managing the road, is entitled to priority over the debt of the bond- holders, secured, as it is, by mortgage. Having requested the court to take control of the property, and maintain it as a going concern for their benefit, they are estopped from denying that the expenses of such management are entitled to priority, forming, as they do. a part of the costs of the litigation. 86 To enable the receiver to raise funds for the operation and maintenance of the road, the court generally authorizes the issuance of receivers' certificates; and, on the distribution of the proceeds of sale of the mortgaged premises, the holders of these certificates are entitled to priority over the bondholders. 87 4. The common law furnished a remedy by writ of quo warranto for the dissolution of a corporation. Independent of statute, there- fore, courts of equity have no power to' dissolve a corporation, wind 84 Beach, Rec. § 359. ss Kennedy v. St. Paul & P. It. Co., 5 Dill. 519, Fed. Cas. No. 7,707; Jerome v. McCarter, 94 U. S. 734, 738 (canal); Bank of Montreal v. Chicago, C. & W. R. Co., 48 Iowa, 518. ss Hale v. Nashua & L. R. Co., 60 N. H. 333; Miltenberger v. Logansport Ry. Co., 106 U. S. 286, 1 Sup. Ct 140; Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 46 Fed. 26; Kneeland v. American Loan & Trust Co., 136 U. S. 89, 10 Sup. Ct. 950. Some of the cases hold that the expenses of a receiver- ship are entitled to priority over the mortgage bondholders, though they have not consented to the receivership or the expenses, on the theory that railroads are quasi public corporations, and that public necessities require their con- tinued operation. Meyer v. Johnston, 53 Ala. 237, 348; Kneeland v. Bass Foundry & Mach. Works, 140 U. S. 592, 11 Sup. Ct. 857; Kneeland v. Duce, 141 U. S. 491, 12 Sup. Ct. 32. This last proposition has been severely criti- cised, on the ground that to give priority to the receivership expenses over a mortgage of earlier date is, in effect, impairing the obligation of a contract in violation of the federal constitution. 8T Credit Co. of London v. Arkansas Cent. R. Co., 15 Fed. 46; Union Trust Co. v. Illinois M. Ry. Co., 117 U. S. 437, 6 Sup. Ct. 809. Ch. 15] RECEIVERS. 335 up its affairs, sequestrate its property, and in that connection appoint a receiver. 88 In most of the states of the Union, however, this power has been conferred by statute; but the courts are very cautious in its exercise, 89 and the receiver is regarded in the light of a trustee for the creditors and stockholders. 90 5. A judgment creditor, who has issued an execution on his judg- ment which has been returned unsatisfied, has a right to come into equity for the appointment of a receiver of his judgment debtor's property which cannot be sold under execution at law. 91 The re- ceiver in these cases is vested, not only with the title and rights possessed by the judgment debtor, but also with the right of the judgment creditor to set aside fraudulent conveyances made by the debtor. 92 ss Decker v. Gardner, 124 N. Y. 334, 26 N. E. 814; Neall v. Hill, 16 Cal. 145; Folger v. Columbian Ins. Co., 99 Mass. 267. 89 High, Rec. § 2S9; Oakley v. Paterson Bank, 2 N. J. Eq. 173. »o High, Rec. §§ 314, 315; Curtis v. Leavitt, 15 N. Y. 44; Attorney General v. Guardian Mut Life Ins. Co., 77 N. Y. 272. 9i Curling v. Marquis Townshend, 19 Ves. 632; Bloodgood v. Clark, 4 Paige, 574; Osborn v. Heyer, 2 Paige, 342; Johnson v. Tucker, 2 Tenn. Ch. 398. In states where the code procedure prevails, statutes exist providing for the examination of the judgment debtor concerning his property after the execution has been returned unsatisfied, and authorizing the appointment of a receiver of property discovered on such examination. These proceedings are known as proceedings supplementary to execution, and have to a certain extent superseded judgment creditors' bills. 92 Green v. Bostwick, 1 Sandf. Ch. 185; Porter v. Williams, 9 N. Y. 142; Hamlin v. Wright, 23 Wis. 491. TABLE OF CASES CITED. A Page Abbey v. Deyo, 44 N. Y. 347 160 Abbott v. Creal, 56 Iowa, 175, 9 N. W. 115 143 Abell v. Howe, 43 Vt. 403 89 Aberdeen Ry. Co. v. Blakie, 1 Macq. 461 150 Abernethy v. Hutchinson, 1 Hall. & T. 28, 40, 3 Law J Ch. 209 30S Acer v. Hotchkiss, 97 N. Y. 395, 403 256 v. Westcott, 46 N. Y. 384 87 Ackroyd v. Sraithson, 1 Brown, Ch. 503, 505 77, 192 Acton v. Waddingtou, 46 N. J. Eq. 16, 18 Atl. 356 233 Adair v. Adair, 22 Or. 115, 29 Pac. 193 215 Adams v. Adams, 17 Or. 247, 20 Pac. 033 2S3 v. Chicago, B. & N. R. Co., 39 Minn. 286, 39 N. W. 629 306 v. Clifton, 1 Russ. 297 210 v. Corriston, 7 Minn. 456 (Gil. 365) 215 V.Drake, 11 Cush. (Mass.) 501 255 v. Hayden, 60 Tex. 223 91 v. Manning, 48 Conn. 477 16 v. Messinger, 147 Mass. 1S5, 17 N. E. 491 29, 267 v. Parker, 12 Gray, 53 218 v. Pilcher, 92 Ala. 474, S South. 757 21S v. Sayre, 70 Ala. 318 148 v. Schiffer, 11 Colo. 15, 17 Pac. 21 134 v. Smilie, 50 Vt. 1 225 v. Valentine, 33 Fed. 1 277 v. Wheeler, 122 Ind. 251, 23 N. E. 760 127 Adams and Kensington Vestry, In re, 27 Ch. Div. 394 175 Adams' Appeal, 113 Pa. St. 449, 6 Atl. 100 249 Adams' Trusts, In re, 12 Ch. Div. 634 171 Aderholt v. Embry, 78 Ala. 1S5 250 Adler v. Pin, SO Ala. 351, 354, 355 50 Adsit v. Adsit, 2 Johns. Ch. 448 55 Aetna Life Ins. Co. v. Bishop, 69 Iowa, 645, 29 N. W. 761 SS v. Middleport, 124 U. S. 534, 8 Sup. Ct. 625 254, 256 Agar v. Fairfax, 2 White & T. Lead. Cas. Eq. 865, 905, 915 261, 262 Agnew v. Bell, 4 Watts (Pa.) 33 253 Ahrend v. Odiorne, 118 Mass. 261 232,233 eq.jur.— 22 (337) 338 CASES CITED. Page Aiken v. Gale, 37 N. H. 501 225 Akerly v. Vilas, 21 Wis. 88 140 Akin v. Kellogg, 119 N. Y. 441, 440, 23 N. E. 1040 134 Akins v. Hill, 7 Ga. 573, 577 43 Alderson v. White, 2 De Gex & J. 97 217 Aldred's Case, 9 Coke, 58b 303 Aldrich v. Cooper, 8 Ves. 382, 2 White & T. Lead. Cas. Eq. 80 256 Aldridge v. Aldridge, 120 N. Y. 614, 24 N. E. 1022 145 Alexander v .Ellison, 79 Ky. 148 231 v. Hill, S8 Ala. 487, 7 South. 238 221 v. Hooks, 84 Ala. 605, 4 South. 417 234 v. Merrick, 121 111. 600, 614, 13 N. E. 190 37 v. Wunderlich, 118 Pa. St 610, 12 Atl. 580 275, 278 Aleyn v. Belchier, 1 Eden, 132, 1 White & T. Lead. Cas. Eq. 573 161 Alkire v. Alkire, 134 Ind. 350, 32 N. E. 573 161 Allen v. Allen, 47 Mich. 79, 10 N. W. 113; 13 S. C. 512 43, 64, 65 v.Anderson, 5 Hare, 163 54 v. Buchanan (Ala.) 11 South. 777 30 v. Culver, 3 Denio, 2S4 251 v. Elder, 76 Ga. 674 120 v. Everly, 24 Ohio St. 97, 114 216 v. Galloway, 30 Fed. 400 119, 121 v. Hammond, 11 Pet. 65 123 v. Hawley, 6 Fla. 164 332 v. Hyde, 2 Abb. N. O. 197 325 v. McPherson, 1 H. L. Cas. 191 199 v. Patton, 83 Va. 255, 2 S. E. 143 237 v. Poole, 54 Miss. 323, 324, 333 94 v. Smith, 16 N. Y. 418, 419 325 v. Watts, 98 Ala. 384, 11 South. 646 70 v. Withrow, 110 U. S. 130, 3 Sup. Ct. 517 177 v. Young, S8 Ala, 338, 6 South. 747 281 Allison v. Drake, 145 111. 500, 32 N. E. 541 95 Allore v. Jewell, 94 U. S. 506 144 Al worth v. Seymour, 42 Minn. 526, 44 N. W. 1030 273 American Fire Hose Manuf'g Co. v. Cornelius Callahan Co., 41 Fed. 50. . 307 Ames v. Richardson, 29 Minn. 330, 13 N. W. 137 27 Andenreid's Appeal, 89 Pa. St 114 153 Anderson v. Bank of British Columbia, 2 Ch. Div. 644 320 v. Brinser, 129 Pa. St. 376, 11 Atl. 809, and 18 Atl. 520 277 v. Harvey, 10 Grat. 3S6 300 v. May, 50 Minn. 280, 52 N. W. 530 115 v. Nagle, 12 W. Va. 98 100 v. Roberts, 18 Johns. 515 105 CASES CITED. 339 Page Andreas v. Hubbard, 50 Conn. 351 257 Andrew v. Trinity Hall, 9 Ves. 525 52 Andrews v. Aetna Life Ins. Co., 85 N. Y. 334 50 v. Andrews, 81 Me. 337, 17 Atl. 160; 110 111. 223, 230 128, 188 v. Mathews, 59 Ga. 466 100 Andrus v. Coleman, 82 111. 26 232 Angell, In re, 13 R. I. 630 184 v. Angell, 1 Sim. & S. 83 318, 323, 324 v. Hadden, 15 Ves. 244 326 Anketel v. Converse, 17 Ohio St. 11 233 Annapolis & E. R. Co. v. Gantt, 39 Md. 115 215 Anonymous, 2 Ves. Sr. 629; 1 Atk. 521; 12 Ves. 4 269, 325, 333 Anthony v. Boyd, 15 R. I. 495, 8 Atl. 701, and 10 Atl. 657 127 Arbuthnot v. Norton, 5 Moore, P. C. 219 241 Armistead v. Brooke, IS Ark. 521 251 Arms v. Ashley, 4 Pick. 71 173 Armstrong v. Broom, 5 Utah, 176, 13 Pac. 364 94 v. Toler, 11 Wheat. 258, 271 41 Arnold v. Dixon, L. R. 19 Eq. 113 73 Arthur v. Oakes, 63 Fed. 318 296 Ashburnham v. Ashburnharn, 13 Jur. 1111 57 Ashby v. Palmer, 1 Mer. 296 72, 79 Ashton v. Corrigan, L. R. 13 Eq. 76 270 v. Thompson, 32 Minn. 25, 18 N. W. 918 152 Ashton's Appeal, 73 Pa. St. 153 96 Ashurst v. Lehman, 86 Ala. 371, 5 South. 731 331 Aslatt v. Corporation of Southampton, 16 Ch. Div. 148 310 Aspinwall v. Sacchi, 57 N. Y. 331 253 Astley v. Weldon, 2 Bos. & P. 346, 350, 354 107, 109 Aston v. Wood, L. R. 6 Eq. 419 189 Astor v. Wells, 4 Wheat. 466 91 Atkinson v. Henshaw, 2 Ves. & B. 85 332 v. Leonard, 3 Brown, Ch. 218, 224 12 v. Ward, 47 Ark. 533, 2 S. W. 77 208 Atmore v. Walker, 46 Fed. 429 237 Attalla Min. & Manuf'g Co. v. Winchester (Ala.) 14 South. 565 249 Attorney General v. Acton Local Board, 22 Ch. Div. 221 298 v. Cleaver, 18 Ves. 211, 218 9, 302 v. Continental Life Ins. Co., 71 N. Y. 325 243 v. Coopers' Co., 19 Ves. 192 211 v. Duke of Northumberland, 7 Ch. Div. 745 188 v. Forbes, 2 Mylne & C. 123, 132 298 v. Gaskill, 20 Ch. Div. 519 320 v. Gore, Ch. 150 185 340 CASES CITED. Page Attorney General v. Guardian Milt Life Ins. Co., 77 N. Y. 272 333 v. Ironmongers' Co., 2 Beav. 313 189 v. Leeds Corp., 5 Ch. App. 583 306 v. Pearson, 3 Mer. 399 180 v. St. John's Hospital, 2 De Gex, J. & S. 021 170 v. Sheffield Gas Co., 3 De Gex, M. & G. 320 301 v. Steward, 21 N. J. Eq. 340 302 v. Syderfin, 1 Vern. 224 189 v. Tudor Ice Co., 104 Mass. 239 8 v. Utica Ice Co., 2 Johns. Ch. 371 8 v. Wilkins, 17 Beav. 2S:> 30 v. Woods, 108 Mass. 430 302 Attorneys' & Solicitors' Act 1870, In re, 1 Ch. Div. 573 149 Attwood v. Small, 6 Clark & F. 232, 244 134 Atwater v. Russell, 49 Minn. 22, 51 N. W. 024 190 Atwood v. Bearss, 47 Mich. 72, 10 N. W. 112 85 v. Fisk, 101 Mass. 303 39, 41 Aubuchon v Bender, 44 Mo. 500 95 Austen v. Taylor, 1 Eden, 301 184 Austin v. Sprague Manuf'g Co., 14 It. I. 404 180 v. Wacks, 30 Minn. 335, 15 N. W. 409 279 Avery v. Clark, 87 Cal. 019. 25 Pac. 919 232 v. Empire Woolen Co., 82 N. Y. 582 10 v. Ryan, 74 Wis. 591, 43 N. W. 317 267 Ayer v. Hawkins, 19 Vt. 20 251 Ayerst v. Jenkins, L. R. 10 Eq. 2S5 193 Ayres v. Randall, 108 Ind. 595, 9 N. E. 404 22< > B Babcock v. Eckler, 24 N. Y. 025, 032 157 v. New Jersey Stock- Yard Co., 20 N. J. Eq. 290 303 Backhouse v. Bonomi, 9 H. L. Cas. 512 304 Bacon v. Bacon, Toth. 133; 5 Ves. 331 87,205 Bacot v. Heyward, 5 S. C. 441 201 BaggOtt v. Sawyer, 25 S. C. 405 272 Bagley v. Peddie, 10 N. Y. 409 108,110 Bagwell v. Bagwell, 72 Ga. 92 40 Baile v. St. Joseph Fire & M. Ins. Co., 73 Mo. 371 270 Bailey v. Collins, 59 N. H. 459 295 v. Galpin, 40 Minn. 319, 41 N. W. 1054 91 v. Hemenway, 147 Mass. 320, 17 N. E. 045 195 v. Ryder, 10 N. Y. 363 30 v. Winn, 101 Mo. 049, 12 S. W. 1045 216 CASES CITED. 341 Tage Bainbridgge v. Baddeley, 3 Macn. & G. 413 331 v. Blair, 1 Beav. 495 211 Baker v. Bachus' Adm'r, 32 111. 79 330 v. Bradley. 7 De Gex, M. & G. 597 152 v. Griffin, 50 Miss. 158 91 v. Humphrey, 101 U. S. 494, 499 98, 149 v. Kinsley, 41 Ohio St. 403 245 v. Leathers, 3 Ind. 558 197 v. Martin, 8 Sim. 25 206 v. Mather, 25 Mich. 51, 53 87, 88 v. Morris, 10 Leigh (Va.) 284 44 v. Pool, 56 Ala. 14 , 119 v. Selden, 101 U. S. 99 307 Baldock v. Johnson, 14 Or. 542, 13 Pac. 434 152 Baldwin v. Sager, 70 111. 503 96 Bales v. Hunt, 77 Ind. 355 120 Ball v. Mannin, 3 Bligh (N. S.) 1 144 v. Ray, 8 Ch. App. 467 304 Ballard v. Carr, 48 Cal. 74 149 v. Tomlinson, 29 Ch. Div. 115 304 Ballinger v. Bourland, 87 111. 513 223 Ballou v. Hopkinton, 4 Gray, 324 17 Balls v. Strutt, 1 Hare, 146 312 Baltimore & L. T. Co. v. Moale, 71 Md. 355, 18 Atl. 658 232 Baltimore & O. R. Co. v. Arthur, 90 N. Y. 234 328 Bangor Electric Light & Power Co. v. Robinson, 52 Fed. 520 246 Bangs v. Dunn, 66 Cal. 72, 4 Pac. 963 ." 241 Banister, In re, 12 Ch. Div. 131, 142 276 Bank v. Bradley, 15 Lea, 279 235 Bankhead v. Owen, 60 Ala. 457 235 Bank of Mobile v. Tishomingo Sav. Inst, 62 Miss. 250 91 Bank of Montreal v. Chicago, C. & W. R. Co., 48 Iowa, 518 334 Bank of Muskingum v. Carpenter, 7 Ohio, 21 229 Bank of Rochester v. Emerson, 10 Paige, 359 32 Bank of Scotland v. Christie, 8 Clark & F. 214 251 Baptist Ass'n v. Hart's Ex'rs, 4 Wheat. 1 187 Barber v. Rukeyser, 39 Wis. 590 117 Barbour v. Wiehle, 116 Pa. St. 308, 9 Atl. 526 S9 Baring v. Nash, 1 Ves. & B. 551 261 Barker's Estate, In re, 159 Pa. St. 518, 28 Atl. 365, 368 180 Barker's Trusts, In re, 1 Ch. Div. 43 171, 211 Barnard v. Campbell, 58 N. Y. 73 95 v. Lee, 97 Mass. 92 279 v. Stone, 159 Mass. 224, 34 N. E. 272 147 v. Wilson, 74 Cal. 513, 16 Pac. 307 222 342 CASES CITED. Page Barnes v. Dow, 59 Vt 530, 10 Atl. 258 15 v. Jones, 91 Ind. 1G1 332 v. Taylor, 27 N. J. Eq. 259 43 v. Trenton Gaslight Co., 27 N. J. Eq. 35 88 Barnhart v. Greenshields, 9 Moore, P. C. IS 83 Barnum v. Barnum, 26 Md. 119 181 Ban- v. Cubbage, 52 Mo. 404 208 Barret v. Beckford, 1 Ves. Sr. 519 61 v. Blagrave, 5 Ves. 555, 6 Ves. 101 295 Barrett v. Hartley, L. R. 2 Eq. 789 200 v. Hinckley, 124 111. 32, 14 N. E. SG3 214, 215 v. Sear, 128 Ind. 261, 27 N. E. 607 97 Barrow v. Richard, S Paige, 351 103 Barrs v. Fewkes, 2 Hen. & M. 60 192 Barry v. Croskey, 2 Johns. & H. 1 137 Barth v. Deuel, 11 Colo. 494, 19 Pac. 471. 124 Bartlett v. Bartlett, 15 Neb. 593, 19 N. W. 691 151 v. Crittenden, 5 McLean, 32, Fed. Cas. No. 1,076 308 Bartlette v. Crittenden, 4 McLean, 300, Fed. Cas. No. 1,082 308 Barton v. Capewell Cont Pat. Co. (Q. B. Div. 1893) 08 Law T. (N. S.) 857 108 Baskcomb v. Beckwith, L. R. 8 Eq. 100 276 Bass v Estill, 50 Miss. 300 257 Bassett v. Hughes, 43 Wis. 319 220 v. Leslie. 123 N. Y. 396, 25 N. E. 386 327 v. Manufacturing Co., 43 N. H. 249 14 v. Nosworthy, Cas. t. Finch, 102; 2 White & T. Lead. Cas. Eq. 1, 102 35, 96, 106, 208 v. Shoemaker, 46 N. J. Eq. 538, 20 Atl. 52 147 Basye v. Ambrose, 2S Mo. 39 109 Bateman v. Fargasor;, 2 Flip. 660, 4 Fed. 32 41 v. Wilioe, 1 Schoales & L. 201 293 Bates- v. Ball. 72 111. 108 , 144 v. Norcrcss, 14 Pick. 224 91 Bottell v. Matot. 58 Vt. 271, 5 Atl. 479 283 Baughman v. Reed, 75 Cal. 319, 17 Pac. 222 333 Baum's Appeal, 113 Pa. St. 58, 4 Atl. 461 267 Bausman v. Kelley. 38 Minn. 197, 36 N. W. 333 43 Baxter v Farmer, 7 Ired. Eq. 239 323 v. Moses 77 Me 465, 1 Atl. 350 156 Bay v. Williams. 112 111. 91 220 Bayard v. Hoffman, 4 Johns. Ch. (N. Y.) 450 159 Bayley v. Bishop, 9 Ves. 6 79 Baylor v. Dejarnette, 13 Grat. 152 261 Beal v. Chase, 31 Mich. 490 295 v. Harrington, 110 111. 113, 4 N. E. 664 234 CASES CITED. 343 Page Bean v. Railroad Co., 107 N. C. 731, 747, 12 S. E. 600 126 Bearce v Barstow, 9 Mass. 45 220 Beard v. Beard, 25 W. Va. 486 119 Beatie v. Butler, 21 Mo. 313 86 Beatty v. Clark, 20 Cal. 11, 30 207 Beaver v. Beaver, 117 N. Y. 421, 22 N. E. 940 177, 178 Beavers v. McKinley, 50 Kan. 602, 32 Pac. 363, and 33 Pac. 359 194 Beck v. Allison, 56 N. Y. 366 268 v. Beck, 43 N. J. Eq. 39, 10 Atl. 155 197 Becker v. Howard, 75 Wis. 415, 44 N. W. 755 216 Beckley v. Newland, 2 P. Wms. 182 242 Beckwith v. Webber, 78 Mich. 390, 44 N. W. 330 255 Beere v. Beere, 79 Iowa, 555, 44 N. W. 809 101 Belchier, Ex parte, Amb. 219 202 Bell v. Hudson, 73 Cal. 285, 14 Pac. 791 43 v. Lawrence, 51 Ala. 160 121, 127 Bellamy v. Savine, 1 De Gex & J. 566, 578, 584 93 Belle of the Sea, The, 20 Wall. 429 47 Belmont v. Coman, 22 N. Y. 438 219 Bemis v. Upham, 13 Pick. 169 305 Benbow v. Moore (N. C.) 19 S. E. 156 75 Benner v. Kendall, 21 Fla. 584, 588 317 Bennet v. Bennet, 10 Ch. Div. 474 197 Bennett, Ex parte, 10 Ves. 381, 400 147 v. Bates, 94 N. Y. 354, 363 246 v. Harper, 36 W. Va. 546, 15 S. E. 143 54 v. Hutson, 33 Ark. 762 192 Benson v. Markoe, 37 Minn. 30, 33 N. W. 38 120 v. Whittam, 5 Sim. 22 174 Benton v. Shafer, 47 Ohio St. 117, 24 N. E. 197 94 Benyon v. Fitch, 35 Beav. 570 142 Berney v. Sewell, 1 Jac. & W. 648. 333 Berry v. Mutual Ins. Co., 2 Johns. Ch. 603 36 Beverley v. Brooke, 4 Grat 187, 20S, 211 330 Bicknell v. Bicknell, 31 Vt. 498 229 Bierce v. Bed Bluff Hotel Co., 31 Cal. 160 S9 Bigland v. Huddleston, 3 Brown, Ch. 285 57 Bilbie v. Lumley, 2 East, 469 119 Billings v. Aspen Mining & Smelting Co., 2 C. C. A. 252, 51 Fed. 338. .97, 137 Bingel v. Volz, 142 111. 214, 31 N. E. 13 129 Binks v Rokeby, 2 Swanst. 226 284 Birch v. Ellames, 2 Anstr. 427 85 Birchett v. Boiling, 5 Munf. (Va.) 442 268 Bird v. Davis, 14 N. J. Eq. 467 250 v. Dennison, 7 Cal. 297 90 344 CASES CITED. Page Birdsall v. Cropsey, 20 Neb. 679, 45 N. W* 021 90 Birmingham v. Kirwan, 2 Schoales & L. 452 55 v. Lesan, 77 Me. 404, 1 Atl. 151 112 Birmingham Warehouse Elevator Co. v. Elyton Land Co., 93 Ala. 540, 9 South. 235 134 Birne v. Main, 29 Ark. 591 91 Bischoffsheim v. Baltzer, 20 Fed. 890 148 v. Earl of Banbury, 1 Ch. Cas. 287 87 Bishop v. Red mond, 83 Ind. 157 150 Bissell v. Kellogg, (50 Barb. (517 37 Black v. Washington, 65 Miss. 00, 3 South. 140 201 Blackburn v. Clarke. 85 Tenn. 500, 3 S. W. 505 38 v. Gregson, 1 Brown, Ch. 420 231 Blaekett v. Bates, 1 Ch. App. 117 200 Blackshire v. Pettit, 35 W. Va. 547, 14 S. E. 133 105 Blackstone Bank v. Davis, 21 Pick. 43 180 v. Hill, 10 Pick. 129 250 Blackwell v. Ryan, 21 S. C. 112 275 Blair v. Wait, 09 N. Y. 113 48 Blaisdell v. Ahern, 144 Mass. 393, 11 N. E. GS1 149 Blake v. Bunbury, 1 Ves. Jr. 523 53 Blakeman v. Blakeman, 39 Conn. 320 121 Blakemore v. Glamorganshire Canal Navigation, 1 Mylne & K. 154 289 Blanc v. Murray, 30 La. Ann. 102 10 Blanchard v. Ware, 43 Iowa, 530, 531 93 Blandf ord v. Marlborough, 2 Atk. 545 44 Blandy v. Widmore, 1 P. Wms. 324, 2 White & T. Lead. Cas. Eq. 417 60 Blaney v. Bearce, 2 Greenl. 132 215 Blasdel v. Fowle, 120 Mass. 447 41 Bleakley's Appeal, 00 Pa. St. 1S7 40 Bledsoe v. Nixon, 08 N. C. 521 110 Bliss v. Lawrence, 58 N. Y. 442 241 v. Pritchard, 07 Mo. 187 43 Blodgett v. Perry, 97 Mo. 203, 273, 10 S. W. 891 47 Blondheim v. Moore, 11 Md. 305 331 Blood v. Blood, 23 Pick. SO 90 Bloodgood v. Clark, 4 Paige, 574 335 Bloom v. Noggle, 4 Ohio St. 45, 40 229 Blount v. Walker, 31 S. C. 13, 9 S. E. S01 193 Blow v. Maynard, 2 Leigh (Va.) 30 254 Blue v. Marshall, 3 P. Wms. 381 201 v. Watson, 59 Miss. 019 328 Boardman v. Larrabee, 51 Conn. 39 220 Board of Chosen Freeholders v. Newark City Nat. Bank, 4S N. J. Eq. 51, 21 Atl. 185 11 CASES CITED. 345 Page Board of Public Works v. Columbia College, 17 Wall. 530 150 Bogan v. Daughdrill, 51 Ala. 312 200 Bohart v. Chamberlain, 99 Mo. 022, 13 S. W. S5 110 Bond v. Kent, 2 Vern. 2S1 235 Bonesteel v. Bonesteel, 28 Wis. 215 325 Bongard v. Block, 81 111. 180 150 Bonner v. Bonner, 13 Ves. 379 257 Booker v. Booker, 20 Ga, 781 323 Boon v. Barnes, 23 Miss. 130 95 Boone v. Chiles, 10 Pet. 210 35 Booth v. Booth, 1 Beav. 125 205 v.Clark, 17 How. 322 330 Boren v. Smith, 47 111. 4S2 21 Boston Diatite Co. v. Florence Manuf'g Co., 114 Mass. 09 311 Boston Ice Co. v. Potter, 123 Mass. 28 123 Boston & M. R. Co. v. Bartlett, 3 Cush. (Mass.) 224; 10 Gray (Mass.) 3S4 273, 275 Bostwick v. Beach, 105 N. Y. 001, GG3, 12 N. E. 32; 103 N. Y. 414, 422, 9 N. E. 41 2S4, 280 v. Stiles, 35 Conn. 195 117 Boswell v. Coaks, 27 Ch. Div. 424, 457 43 Boulton v. Jones, 2 Hurl. & N. 504 123 Bourget v. Monroe, 58 Mich. 503, 25 N. W. 514 273 Bourne v. Bourne, 2 Hare, 35 08 Boursot v. Savage, L. R. 2 Eq. 134 SS Bouverie v. Prentice, 1 Brown, Ch. 200 204 Bowditch v. Banuelos, 1 Gray, 220 171 Bowker v. Pierce, 130 Mass. 202 202 Bowles' Case, 11 Coke, 81b 300 Bowman v. Anderson, 82 Iowa, 210, 47 N. W. 10S7 80 v. Patrick, 30 Fed. 138 151 Boyce's Ex'rs v. Grundy, 3 Pet. 210, 215 12 Boyd, Ex parte, 105 U. S. 057 320 v. Beaudin, 54 Wis. 193, 198, 11 N. W. 521 220 v. De I,a Montagnie, 73 N. Y. 498, 502 152, 153 v. McLean, 1 Johns. Ch. (N. Y.) 5S2 190 v. U. S., 110 U. S. 010, Sup. Ct. 524 321 Boyes v. Liddell, Jur. 725 279 Boyse v. Rossborough, H. L Cas. 2 144 Bozarth v. Largent, 128 111. 95, 21 N. E. 21S 224 Brabrook v. Bank, 104 Mass. 228 178 Brace v. Duchess of Marlborough, 2 P. Wms. 491 30 Brackett v. Griswold, 103 N. Y. 425, 428, 9 N. E. 438 240 Bradford v. Marvin, 2 Fla. 403 232 346 CASES CITED. Page Bradford, E. & C. R. Co. v. New York, L. E. & W. R. Co., 123 N. Y. 327, 25 X. E. 499 270 Bradlaugh v. Newdegate, 11 Q. B. Div. 1 241 Bradley v. Bryan, 43 N. J. Eq. 396, 13 Atl. 806 101 Brady v. Dilley, 27 Md. 570 207 v. Hill, 1 Mo. 315 250 Bramhall v. Ferris, 14 N. Y. 41 180 Braudretb v. Lance, 8 Paige (N. Y.) 24 311 Branham v. Record, 42 Ind. 181 137 Biasbear v. West, 7 Pet. 608 201 Brazel v. Fair, 26 S. C. 370, 2 S. E. 293 209 Breckinridge v. Taylor, 5 Dana, 110 252 Brendel v. Klopp, 69 Md. 1, 13 Atl. 589 261, 262 Brennan v. Clark, 29 Neb. 385, 45 N. W. 472 108 Brevoort v. Brevoort, 70 N. Y. 136 261 Brewer v. Herbert, 30 Md. 301 26 Brice v. Bannister, 3 Q. B. Div. 569 245 v. Stokes, 2 White & T. Lead. Cas. Eq. 1742; 11 Ves. 319 206, 210 v. Watkins, 30 La. Ann. 21 256 Brickner Woolen Mills Co. v. Henry, 73 Wis. 229, 40 N. W. 809 14 Bridesburg Manuf'g Co., Appeal of, 106 Pa. St 275.- 328 Briggs v. Carroll, 117 N. Y. 288, 22 N. E. 1054 237 Bright v. Boyd, 1 Story, 478, Fed. Cas. No. 1,875 230 Brigbt's Appeal, 100 Pa. St. 602 70 Brill v. Tuttle, 81 N. Y. 454, 457 „ 243 v. Wrigbt, 112 N. Y. 129, 19 N. E. 628 237 Brinkman v. Jones, 44 Wis. 498 82 Briscoe v. Briscoe, 7 Ir. Eq. 123 56 v. Bronaugb, 1 Tex. 326 233 Brison v. Brison, 75 Cal. 525, 17 Pac. 689 151 Bristow v. Warde, 2 Ves. Jr. 336 55 Britain v. Rossiter, 11 Q. B. Div. 123, 129 280, 2S3 Britton v. Royal Arcanum, 46 N. J. Eq. 102, 18 Atl. 675 22 Britton's Appeal, 45 Pa. St 172 92 Broadbead v. McKay, 46 Ind. 595 227 Broadnax v. Baker, 94 N. C. 675 Ill Brock v. Dole, 66 Wis. 142, 28 N. W. 334 299 Brocksopp v. Barnes, 5 Madd. 90 206 Broderick's Will, In re, 21 Wall. 503 199 Brodie v. Barry, 2 Ves. & B. 127 54 Bromley v. Holland, 7 Ves. 3 12 v. Smitn, 26 Beav. 644 142 Brooking v. Maudslay, 38 Ch. Div. 636 323 Brooks v. Davey, 109 N. Y. 495, 17 N. E. 412 262 CASES CITED. 347 Page Brooks v. Martin, 2 Wall. 70 42 Broughton v. Hutt, 3 De Gex & J. 501, 504 121 Brower v. Witmeyer, 121 Ind. 83, 22 N. E. 975 232 Brown v. Bronson, 35 Mich. 415 160 v. Brown, 42 Minn. 270, 44 N. W. 250; (111. Sup.) 32 N. E. 500; 61 Tex. 45; 1 Dickens, 62 51, 140, 267 v. Cram, 1 N. H. 169 216 v. Crookston Agricultural Ass'n, 34 Minn. 545, 26 N. W. 907 223 v. Ferrell, 83 Ky. 417 232 v. Finney, 53 Pa. St. 373 271 v. Gray, 6 Jones (N. C.) 103 138 v. How, Barnard. Ch. 354 185 v. Jones, 1 Atk. 188 192 v. Knapps, 79 N. Y. 136 238 v. Montgomery, 20 N. Y. 287 138 v. Munger, 42 Minn. 482, 44 N. W. 519 273 v. Pancoast, 34 N. J. Eq. 324 188 v. Stewart, 1 Md. Ch. 87 215 v. Volkening, 64 N. Y. 76, 82, 83 82. 85, 92 v. Ward, 103 N. C. 173, 9 S. E. 300 51 Browning v. Lavender, 104 N. C. 69, 10 S. E. 77 317 v. Wright, 2 Bos. & P. 15, 26 128 Brownson v. Reynolds, 77 Tex. 254, 13 S. W. 986 293 Bruen v. Gillet, 115 N. Y. 10, 21 N. E. 676 205 Brundage v. Biggs, 25 Ohio St. 652, 656 95 Brunswick-Balke-Collender Co. v. Herrick, 63 Vt 286, 21 Atl. 918 216 Bryce v. Lorillard Fire Ins. Co., 55 N. Y. 240, 243 315 Buchanan v. Griggs, 18 Neb. 121, 24 N. W. 452 116 v. Howland, 2 Fish. Pat. Cas. 341, Fed. Cas. No. 2,074 307 Buchannon v. Little (Ky. App.) 22 S. W. 559 281 Buck v. Smith, 29 Mich. 166 269 Buckley v. Daley, 45 Miss. 338, 565 215 v. Patterson, 39 Minn. 250. 39 N. W. 490 276 Budd v. Olver, 147 Pa. St. 194, 23 Atl. 1105 255 Budington v. Munson, 33 Conn. 481 162 Bufkin v. Boyce, 104 Ind. 53, 3 N. E. 615 332 Bugbee's Appeal, 110 Pa. St. 331, 1 Atl. 273 83 Bullitt v. Farrar, 42 Minn. 8, 43 N. W. 566 135 Bullock v. Dommitt, 6 Term R. 650 115 Bundy v. Town of Monticello, 84 Ind. 119 209 Burch v. Carter, 44 Ala. 115, 117 87, 88 Burden v. Stein, 27 Ala. 104 305 Burdon Cent. Sugar Ref. Co. v. Leverich, 37 Fed. 67 295 Burgess v. Wheate, 1 W. Bl. 123, 129; 1 Eden, 177, 195 26, 102 348 CASES CITED. Page Burke v. Roper, 79 Ala. 138 190 v. Taylor, 94 Ala. 530, 10 South. 129 141 Burkhalter v. Jones, 32 Kan. 5, 3 Pac. 559 276 Burkhardt v. Howard, 14 Or. 39, 12 Pac. 79 234 Bark's Appeal, 75 Pa. St. 141 286 Burleson v. McDermott, 57 Ark. 229, 21 S. W. 222 94 Burlingame v. Rowland, 77 Cal. 315, 19 Pac. 526 282 Burnand v. Rodocanachi, 7 App. Cas. 339 255 Burnell v. Martin, 2 Doug. 417 223 Burnett v. Anderson, 1 Mer. 405 329 Burney v. Ryle, 91 Ga. 701, 17 S. E. 986 296 Burnham v. Comfort, 108 N. Y. 535, 15 N. E. 710 03 v. Kidwell, 113 111. 425 143 Burnside v. Wayinan, 49 Mo. 356 176 Burrow v. Scammell, 19 Ch. Div. 175 286 Burt v. Quisenberry, 132 111. 3S5, 24 N. E. 622 144, 145 Burtis v. Bradford, 122 Mass. 129 226 Burton v. Perry, 146 111. 71, 34 N. E. 73 S9 Buse v. Page, 32 Minn. Ill, 19 N. W. 736, and 20 N. W. 95 217 Bush v. Lathrop, 22 N. Y. 535 246 Bushnell v. Robeson, 62 Iowa, 540, 17 N. W. 8S8 303 Bute v. Glamorganshire Canal Co., 1 Phil. Ch. 681 264 Butler v. Burleson, 16 Vt. 176 295 v. Butler, 21 Kan. 521; 5 Ch. Div. 554 101, 205 v. Freeman, 1 Amb. 303 332 v. Haskell, 4 Dessaus. Eq. 651 141 Butman v. Porter, 100 Mass. 337 273 Butterfield v. Cowing, 112 N. Y. 486, 20 N. E. 369 210 Buttrick v. Wentworth, 6 Allen, 79 223 Buttricke v. Brodhurst, 3 Brown, Ch. S8 56 Byam v. Bullard, 1 Curt. (U. S.) 100, Fed. Cas. No. 2,2G2 306 Byars v. Stubbs, 85 Ala. 256, 4 South. 755 276 Byrne v. Byrne, 3 Serg. & R. 54 61 v. Stewart, 124 Pa. St. 450, 17 Atl. 19 135 Byxbie v. Wood, 24 N. Y. 607 240 O Cable v. Alvord, 27 Ohio St. 666 325 Cadigan v. Brown, 120 Mass. 493 10 Cadogan v. Kennett, 2 Cowp. 432 155 Cadwell v. Brown, 36 111. 103 , 200 Caffrey v. Darby, 6 Ves. 488 201 Caird v. Sime, 12 App. Cas. 326 308 CASES CITED. 349- Page Cake v. Simll, 45 N. J. Eq. 208, 16 Atl. 434 216 Calcraft v. Roebuck, 1 Ves. Jr. 221 284 Caldwell v. Carrington, 9 Pet. 86 208 v. Depew, 40 Minn. 528, 42 N. W. 479 120, 276 v. Dickinson, 13 Gray, 305 269 v. Vanvlissengen, 9 Hare, 424 307 Calhoun v. Burnett, 40 Miss. 599 210 v. King, 5 Ala. 525 333 v. Millard, 121 N. Y. 69, 24 N. E. 27 44 Callahan v. Boazman, 21 Ala. 246 251 v. Edwards, 32 N. Y. 483, 486 245 Callanan v. Gilman, 107 N. Y. 360, 14 N. E. 264 302 Calvo v. Davies, 73 N. Y. 211, 215 220 Cambrelleng v. Purton, 125 N. Y. 610, 26 N. E. 907 278 Camp v. Bostwick, 20 Ohio St. 337 252 Campau v. Van Dyke, 15 Mich. 371 140 Campbell v. Dearborn, 109 Mass. 130 217 v. Durham, 86 Ala. 299, 5 South. 507 276 v. Indianapolis & V. R. Co., 110 Ind. 490, 11 N. E. 4S2 S4 v. Nichols, 33 N. J. Law, 81 50 v. Rust, 85 Va. 653, 8 S. E. 664 268 v. Seaman, 63 N. Y. 568 303 v. Walker, 5 Ves. 678 147 v. Woodstock Iron Co., 83 Ala. 351, 3 South. 3l» 226 Campbell's Appeal, 80 Pa. St. 298 153 Campbell's Trusts, In re, 31 Beav. 176 171 Canedy v. Marcy, 13 Gray (Mass.) 373, 375, 377 120. 314 Cannon v. Lindsey, 85 Ala, 198, 3 South. 676 123 v. McNab, 48 Ala. 99 13 Carhart v. Harshaw, 45 Wis. 340 159 Carler v. Corley, 23 Ala. 612 109 Carleton v. Rugg, 149 Mass. 550, 22 N. E. 55 9 Carlisle v. Cooper, 21 N. J. Eq. 576 302 v. Jumper, 81 Ky. 282 35 Carlton v. Buckner, 28 Ark. 66 234 Carney v. Hadley, 32 Fla. 344, 14 South. 4, 7 18, 301 Carpenter v. Bowen, 42 Miss. 28 215 v. Carpenter, 12 R. I. 544; 6 R. I. 542 202, 216 v. Longan, 16 Wall. 271, 275 218 v. Strange, 141 U. S. S7, 106, 11 Sup. Ct. 960 31 Carr v. Branch, 85 Va. 597, 604, 8 S. E. 476 79 v. Callaghan, 3 Litt. 365 0r> v. Carr, 52 N. Y. 251, 260 217 Carraway v. Carraway, 27 S. C. 576, 5 S. E. 157 10O CASES CITED. Pago < larrier v. Heather, 02 Mich. 441, 29 N. W. 38 147 ( Jarrigan v. Evans, 31 S. C. 262, 9 S. E. 852 201 Carriugton v. Brents, 1 McLean (U. S.) 167, Fed. Cas. No. 2,446 94 < :i it. kIus v. Sharp, 20 Beav. 56 285 Carroll v. Ballance, 20 111. 9 215 v. Renlch, 7 Smedes & M. 79S 184 Carron Iron Co. v. Maclaren, 5 H. L. Cas. 416, 445 30 Carruthers, Ex parte, 3 De Gex & S. 570 243 Carson v. Ury (U. S. Cir. Ct. Mo.) 39 Fed. 777 309 Carte v. Duff, 25 Fed. 183 308 Carter v. Burr, 46 N. J. Eq. 134, 18 Atl. 463 147 v. Champion, 8 Conn. 549 90 v. Gunn, 64 Ga. 651 214 v. Phillips, 144 Mass. 100, 10 N. E. 500 279 Cartwright v. Gardner, 5 Cush. 273, 280, 281 279 v. Pettus, 2 Ch. Cas. 214 30 v. Pultney, 2 Atk. 380 261 Caruthers v. Humphrey, 12 Mich. 270 215 Carver v. Coffman, 109 Ind. 547, 10 N. E. 567 231 Cary v. Cary, 2 Schoales & L. 175 147 Casborne v. Scarf e, 1 Atk. 603, 2 White & T. Lead. Cas. Eq. 1945 213 Case v. Fishback, 10 B. Mon. 40, 41 12 v. Minot, 158 Mass 577, 33 N. E 700 14 v. Phelps, 39 N. Y. 164 157 Casey v. Cavaroc, 96 U. S. 467 27 v. Cincinnati Typographical Union, 45 Fed. 135 311 Cashman v. Harrison, 90 Cal. 297, 27 Pac. 283 243 Cassady v. Cavenor, 37 Iowa, 300 40 Cassel v. Scott, 17 Ind. 514 294 Castner v. Walrod, 83 111. 171 , . . . 43 Cate v. Cate, 87 Tenn. 41, 9 S. W. 231 233 Cathcart v. Robinson, 5 Pet. 264, 269 273, 276 Catlin v. Green, 120 N. Y. 441, 24 N. E. 941 43 Cator v. Earl of Pembroke, 1 Brown, Ch. 302 234 Cauffman v. Cauffman, 17 Serg. & R. 16, 24, 25 51 Cavanaugh v. Peterson, 47 Tex. 198 100 Cavendish v. Dacre, 31 Ch. Div. 470 57 v. Geaves, 24 Beav. 163, 173 245 Cavin v. Gleason, 105 N. Y. 256, 11 N. E. 504 209 Center v. Bank, 22 Ala. 743 93 Central Nat. Bank v. Connecticut Mut Life Ins. Co., 104 U. S. 54 28, 209 Central Trust Co. v. Wabash, St L. & P. R, Co., 29 Fed. 546; 46 Fed. 26 88, 334 Chace v. Chapin, 130 Mass. 128 173 CASES CITED. 851 Page Chafee v. Quidnick Co., 13 R. I. 442 330 Chalmer v. Bradley, 1 Jac. & W. 68 211 Chamberlain v. Thompson, 10 Conn. 243, 251 215 v. Williamson, 2 Maule & S. 408 210 Champion v. Brown, 6 Johns. Ch. 398, 402 233 Champlin v. Champlin, 16 R. I. 314, 15 Atl. 85 161 v. Laytin, 18 Wend. 407, 422 120 Chancey's Case, 1 P. Wms. 408,, 2 White & T. Lead. Cas. Eq. 3S0 61 Chapin v. Waters, 116 Mass. 140, 146 237 Chapman v. Cole, 12 Gray, 141 125 v. Gibson, 3 Brown, Ch. 229 130 v. Lee, 45 Ohio St. 356, 13 N. E. 736 320 v. Sims, 53 Miss. 154 98 v. Tanner (1684) 1 Vern. 267 232 v. West, 17 N. Y. 125 93 Charles v. Rankin, 22 Mo. 566 304 Charlton v. West, 30 Beav. 124 61 Chase v. Box, Preem. Ch. 261 252 v. Peck, 21 N. Y. 581 233 v. Woodbury, 6 Cush. 143 225 Chase's Case, 1 Bland, 206-213 330 Chatfield v. Simonson, 92 N. Y. 209, 218 47 Chatham Furnace Co. v. Moffatt, 147 Mass. 403, 18 N. E. 168 135 Chautauque Co. Bank v. White, 6 Barb. 589 330 Cheatham v. Crews, 88 N. C. 38 263 Cheesman v. Shreve, 37 Fed. 36 300 Cheever v. Fair, 5 Cal. 337 225 Cheney v. Libby, 134 U. S. 68, 10 Sup. Ct. 498 279 v. Patton, 134 111. 422, 25 N. E. 792 222 Chesman v. Cummings, 142 Mass. 65, 67, 7 N. E. 130 278 Chester v. Jumel, 125 N. Y. 237, 251, 26 N. E. 297 229 Chesterfield v. Janssen, 2 Ves. Sr. 156, 157 154 Cheswell v. Chapman, 38 N. H. 17 263 Chetwynd v. Morgan, 31 Ch. Div. 596 27 Chew v. Hyman, 10 Biss. 240, 7 Fed. 7 224 Chicago v. Witt, 75 111. 211 83 Chicago, B. & Q. R. Co. v. Reno, 113 111. 39 274 Chicago Municipal G. L. & F. Co. v. Town of Lake, 130 111. 42, 22 N. E. 616 278 Chicago, M. & St P. R. Co. v. Stewart, 19 Fed. 5 276 Chicago, St. L. & N. O. R. Co. v. Pullman Southern Car Co., 139 U. S. 79, 11 Sup. Ct. 490 255 Chicago & A. O. & M. Co. v. United States Petroleum Co., 57 Pa. St. 83. . . 331 Chick v. Willetts, 2 Kan. 384 214 352 CASES CITED. Page Chlnnock v. Sainsbury, 30 Law J. Ch. 409 268 Chipman v. Morrill, 20 Cal. 131, 135 252 Chisholin v. Adams, 71 Tex. 678, 10 S. W. 330 9 Cholinondeley v. Clinton, 2 Mer. 359 214 Chouteau v. Boughton, 100 Mo. 400, 13 S. W. S77 240 Christopher v. Christopher, C.4 Md. 5S3, 3 Atl. 290 234 Christy v. McKee, 94 Mo. 241, 6 S. W. 050 233, 235 Church v. Bull, 2 Denio, 430 55 v. Joint School Dist No. 12, 55 Wis. 399, 13 N. W. 272 301 v. Rutland, 64 Pa. St. 432 OS v. Smith, 39 Wis. 492 236 Churchill v. Holt, 131 Mass. 07 253 v. Morse, 23 Iowa, 229 100 Churton v. Douglas, Johns. Eng. Ch. 174 296 Cigar Makers' Protective Union v. Conhaim, 40 Minn. 243, 41 N. W. 943. . 309 City Bank, Ex parte, 3 Ch. App. 758 240 v. Bangs, 2 Paige, 570 328 City Fire Ins. Co. v. Olmsted, 33 Conn. 476 270 City of Bloomington v. Smith, 123 Ind. 41, 23 N. E. 972 116 City of Grand Rapids v. Weiden, 97 Mich. 82, 56 N. W. 233 303 City of London v. Levy, 8 Ves. 404 318 City of Quincy v. Jones, 76 111. 231 304 City of Richmond v. Davis, 103 Ind. 449, 3 N. E. 130 1S8 City of Rochester, In re, 110 N. Y. 105, 17 N. E. 740 237 City of St. Louis v. O'Neal Lumber Co., 114 Mo. 74, 21 S. W. 484 32 v. Priest, 88 Mo. 612 202, 203 Clabaugh v. Byerly, 7 Gill. 354 27, 102 < 'lack v. Holland, 19 Beav. 271 201 Claflin v. Lenheim, 66 N. Y. 301, 306 84 Clarendon v. Hornby, 1 P. Wms. 44G 203 Claridge v. Hoare, 14 Ves. 59, (15 321 Clark v. Barnard, 108 U. S. 430, 457, 2 Sup. Ct. 87S Ill v. Clark, 108 Mass. 522; (N. J. Ch.) 20 Atl. 1012 17S, 325 v. Flint, 22 Pick. 243 90 v. Garfield, 8 Allen. 427 204 v. Jetton, 5 Sneed (Tenn.) 229 65 v. McNeal, 114 N. Y. 295, 21 N. E. 405 98 v. Sewell, 3 Atk. 96 01 Clarke v. Franklin, 4 Kay & J. 257 77, 78 Clarkson v. Skidmore, 46 X. Y. 301 222 Clason v. Bailey, 14 Johns. 489 273 Clayton's Case, 1 Mer. 571.', 57.".. 585 250, 251 Cleaveland v. Richardson, 132 U. S. 318, 329, 10 Sup. Ct. 100 138 CASES CITED. 353 Pags Oleghorn v. Zumwalt, 83 Cal. 155, 23 Pac. 294 124 Clemens v. Belford, 14 Fed. 728 307, 308 v. Caldwell, 7 B. Mon. 171 211 Clement v. Cash, 21 N. Y. 253, 259, 260 10S, 110 Clements v. Moore, 6 Wall. 312 155 v. Tillman, 79 Ga. 451, 453, 5 S. B. 194 29, 31 Clementson v. Gandy, 1 Keen, 309 T>3 Cleveland v. Southard, 25 Wis. 479 219 Cleveland Woolen Mills v. Sibert, 81 Ala. 140, 141, 1 South. 773 81 Clift v. Moses, 116 N. Y. 144, 157, 22 N. E. 393 68 Clinad v. Cooke, 1 Schoales & L. 22, 32, 39, 40 2S1, 282, 287 Clinch v. Financial Corp., L. R. 2 Eq. 271 322 Close v. Flesher (Com. PI. N. Y.) 2S N. Y. Supp. 737 296 Cloud v. Clinkinbeard, 8 B. Mon. 397 59, 61 v. Greasley, 125 111. 313, 17 N. E. 826 30, 283 Clough v. Bond, 3 Mylne & C. 490, 496 116 Clowes v. Dickinson, 5 Johns. Ch. 235, 240 225 Cobbett v. Brock, 20 Beav. 524 153 Cocanaugher v. Green (Ky.) 20 S. W. 542 275 Cochrane v. Willis, 1 Ch. App. 58 120, 124 Cock v. Ravie, 6 Ves. 283 325 Cocking v. Pratt, 1 Ves. Sr. 400 127 Cockrell v. Armstrong, 31 Ark. 580 174 Codman v. Tinkham, 15 Pick. 364 262 Codwise v. Gelston, 10 Johns. 507 33 Coffin v. Parker, 127 N. Y. 117, 27 N. E. 814 224 Cogan v. Stephens, 5 Law J. Ch. 17 77 Cogswell v. New York, N. H. & H. R. Co., 103 N. Y. 10, 8 N. E. 537 303 v. Railroad Co., 105 N. Y. 319, 11 N. E. 518 14 Cohen v. Barton, (Md.) 21 Atl. 63 91 v. Goldsboro Com'rs, 77 N. C. 2 9 v. Morris, 70 G a. 313 312 Cohn v. People, 149 111. 4S6, 37 N. E. 60 40 Coit v. Comstock, 51 Conn. 352 190 Colbert v. Shepherd (Va.) 16 S. E. 246 148 Cole v. Cunningham, 133 U. S. 107, 10 Sup. Ct. 269 30 v. Potts, 10 N. J. Eq. 67 2S1 Coleman v. Slade, 75 Ga. 61 250 Coles v. Trecothick, 9 Ves. 234, 246 147, 118 Colgrove v. Solomon, 34 Mich. 494 2S2 Collier v. Brown, 1 Cox, 42S 141 v. Munn, 41 N. Y. 145 207 Collingwood v. Row, 3 Jur. (N. S.) 785 71 EQ.JUR.— 23 354 CASES CITED. Page Collins v. Champ, 15 B. Mon. 118 73 v. Richart, 14 Bush, 021 235 Colton v. Colton, 127 U. S. 300, 8 Sup. Ct. 1104 175 v. Ross, 2 Paige, 300 199 v. Stanford, 82 Cal. 351, 352, 23 Pac. 16 130, 137, 148 Colver v. Wood (Tenn.) 25 S. W. 903 51 Colverson v. Bloomfield, 29 Ch. Div. 341 325 Colvin, In re, 3 Md. Ch. 288 332 v. Hartwell, 5 Clark & F. 484 38 Combes v. Chandler, 33 Ohio St. 178 40 Combs v. Scott, 70 Wis. 662> 45 N. W. 532 14, 275, 277, 280 Comegys v. A T asse, 1 Pet. 213 240 Comstock v. Johnson, 46 N. Y. 015 38 Conant v. National State Bank, 121 Ind. 323, 22 N. E. 250 134 Conaway v. Sweeney, 24 W. Va. 643, 649 260 Condon v. Kemper, 47 Kan. 126, 27 Pac. 829 109 Conger v. New York, W. S. & B. R. Co., 120 N. Y. 29, 23 N. E. 983 274 Conkey v. Bond, 30 N. Y. 427 148 Connecticut Fire Ins. Co. v. Erie It. Co., 73 N. Y. 399 255 Connecticut Mut. Life Ins. Co. v. Smith, 117 Mo. 261, 22 S. W. 623 90 Conner v. Welch, 51 Wis. 431, 8 N. W. 200 ' 120 Const v. Harris, 1 Turn. & R. 517 332 Constant v. Matteson, 22 111. 546 200 Continental Nat. Bank v. National Bank of the Commonwealth, 50 N. Y. 575, 585 49, 50 v. Weems, 69 Tex. 489, 6 S. W. 802 209' Converse v. Blumrich, 14 Mich. 109 135, 233 Cooclfs Ex'r v. Cooch's Adm'r, 5 Houst. (Del.) 540, 509 237 Cook v. Barr, 44 N. Y. 159 173 v. Basley, 123 Mass. 396 223 v. Berlin Woolen Mills Co., 43 Wis. 433 148 v. Black, 1 Hare, 390 244 v. Clayworth, 18 Ves. 12 144 v. Hutchinson, 1 Keen, 42, 50 194 Cooke v. Cooke, 43 Md. 522; L. R. 4 Eq. 77 150, 209 v. Dealey, 22 Beav. 190 73 Cookes v. Hellier, 1 Ves. Sr. 235 51 Cooper v. Cedar Rapids Water-Power Co., 42 Iowa, 398 202 v. Cooper, 8 Ch. App. 813, 819 62 v. Crabtree, 20 Ch. Div. 589 303 v. Lovering, 100 Mass. 77, 79 135 v. Merritt, 30 Ark. 686 280 v. Phibbs, L. R. 2 H. L. 149 121 CASES CITED. 355 Page Cooper v. Schlesinger, 111 U. S. 148, 4 Sup. Ct. 360 135 v. Smith, 75 Mich. 247, 42 N. W. 815 246 v. Vesey, 20 Ch. Div. 612 316 v. Whittingham, 15 Ch. Div. 501 298 Cooth v. Jackson, 6 Ves, 39 283 Cope v. Fair Ass'n, 99 111. 489 8 Copeland v. Mercantile Ins. Co., 6 Pick. (Mass.) 198 148 Copenrath v. Kienby, 83 Ind. 18 143 Coquillard's Adm'r v. Bears, 21 Ind. 479 241 Corbett v. Laurens, 5 Rich. Eq. (S. C.) 301, 315 231 Corliss v. E. W. Walker Co., 57 Fed. 434 311 Cormicks, In re, 2 Ir. Eq. 264 332 Cornell, In re, 110 N. Y. 351, 357, 18 N. E. 142 202 v. Andrews, 35 N. J. Eq. 7 277 v. Hall, 22 Mich. 377, 383 217 v. Hichins, 11 Wis. 353 246 Cornish v. Abington, 4 Hurl. & N. 549 49 Cornog v. Cornog, 3 Del. Ch. 407, 416 215 Cornwall & L. R. Co.'s Appeal, 125 Pa. St. 232, 17 Atl. 427 269 Corrothers v. Jolliffe, 32 W. Va, 562, 9 S. E. 889 262 Corsellis, In re, 34 Ch. Div. 675 207 Cort v. Lassard, 18 Or. 221, 22 Pac. 1054 296 Cory v. Cory, 37 N. J. Eq. 198; 1 Ves. Sr. 19 58, 145 Cotheal v. Talmage, 9 N. Y. 551 110 Cottington v. Fletcher, 2 Atk. 155 ISO Cottrell's Appeal, 23 Pa, St. 294 254 Coutts v. Acworth, L. R. 9 Eq. 519 53 Couturier v. Hastie, 5 H. L. Cas. 675 123 Covenant Mut. Ben. Ass'n v. Sears, 114 111. 108, 29 N. E. 480 270 Cowee v. Cornell, 75 N. Y. 91, 99, 100 144 Cowell v. Edwards, 2 Bos. & P. 268 252 Cowles v. Pollard, 51 Ala. 445 15 v. Whitman, 10 Conn. 121 267 Cowper v. Cowper, 2 P. Wms. 720, 753 34 v. Scott, 3 P. Wms. 124 51 Cowtan v. Williams, 9 Ves. 107 329 Cox v. McMullin, 14 Grat. (Va.) 82 iy.3 Crabb v. Young, 92 N. Y. 56 202 Craig v. Hukill, 37 W. Va. 520, 16 S. E. 363 112 v. Leiper, 2 Yerg. (Tenn.) 193 44 v. Leslie, 3 Wheat. 563, 567 2 Crissman v. Crissman, 23 Mich. 218 173 Crompton v. Pratt, 105 Mass. 255 251 Cromwell v. Brooklyn Fire Ins. Co., 44 N. Y. 42 27 Crook v. Corp. of Seaford, 6 Ch. App. 551 282 Cropley v. Cooper, 16 Wall. 167 70 Crosby v. Merriam, 31 Minn. 342, 17 N. ,W 950 203 Cross v. De Valle, 1 Cliff. (U. S.) 2S2, Fed. Cas. No. 3.430 34 v. Petrie, 10 B. Mon. 413 201 Crossland v. Powers (Ark.) 13 S. W. 722 234 Crouse v. Frothingham, 97 N. Y. 105 277 Crowe v. Colbeth, 63 Wis. 643, 24 N. W. 478 234 Crowell v. Hospital of St. Barnabas, 27 N. J. Eq. 050 220 Crowley v. Hicks, 72 Wis. 539, 543, 40 N. W. 151 75 Crump v. Black, 6 Ired. Eq. 321 35 y. Ingersoll, 47 Minn. 179, 182, 49 N. W. 739 15 Cruttwell v. Lye, 17 Ves. 335 268, 296- Cryder's Appeal, 11 Pa. St. 72 257 Cuddee v. Rutter, 5 Vin. Abr. 538, pi. 21, 1 White & T. Lead. Cas. Eq. 1063 266, 267 CASES CITED. 357 Page Cullen v. Carey, 146 Mass. 50, 15 N. E. 131 210 v. Dawson, 24 Minn. 66 329 Cullingworth v. Loyd, 2 Beav. 385 154 Cummings v. City of St. Louis, 90 Mo. 259, 2 S. W. 130 302 Cunningham v. Duncan, 4 Wash. 506, 30 Pac. 647 2S6 v. Pattee, 99 Mass. 248 86 Curdy v. Berton, 79 Cal. 420, 21 Pac. 858 199 Curling v. Marquis Townshend, 19 Ves. 632 335 v. May, 3 Atk. 255 68 v. Townshend, 19 Ves. 628 142 Curll v. Emery, 14S Mass. 32, 18 N. E. 574 40 Curran v. Holyoke U. Water-Power Co., 116 Mass. 90 274 Currie v. Clark, 101 N. C. 329, 7 S. E. 805 15 Curry v. Larer, 7 Pa. St. 470 109 Curtis v. Curtis, 2 Brown, Ch. 620, 631, 632 262 v. Leavitt, 15 N. Y. 44 335 v. Mundy, 3 Mete. (Mass.) 405 83 v. Root, 20 111. 54 101 Curwyn v. Miller, 3 P. Wms. 293 142 Cushing v. Blake, 30 N. J. Eq. 689 184 v. Drew, 97 Mass. 445 110 Cushman v. Bonfleld, 139 111. 219, 28 N. E. 937 147 D Dabney v. Bailey, 42 Ga. 521 57 Daggett v. Rankin, 31 Cal. 321, 326 26 Dailey v. King, 79 Mich. 568, 44 N. W. 959 121 Dakin v. Williams, 17 Wend. 452 110 Dale, Ex parte, 11 Ch. Div. 772 209 v. Kimpton, 46 Vt. 76 244 Dalton v. Angus, 6 App. Cas. 809 304 Daly v. Smith, 49 How. Pr. 150 296 Dambmann v. Schulting, 75 N. Y. 55 127, 138 Damm v. Damm, 91 Mich. 424, 51 N. W. 1069 225 Damon v. Bryant, 2 Pick. 411 156 Dana v. Bank of U. S., 5 Watts & S. 226 170 v. St. Paul Investment Co., 42 Minn. 194, 44 N. W. 55 279 Danaher v. Prentiss, 22 Wis. 311 293 Dance v. Dance, 56 Md. 435 235 Danforth v. Laney, 28 Ala. 274 281 Danser v. Warwick, 33 N. J. Eq. 133 173 Darke v. Martyn, 1 Beav. 525 204 Darling v. Mayor, etc., of Baltimore, 51 Md. 1 117, 293 358 CASES CITED. Page Darlington v. Darlington, 160 Pa. St 65, 28 Atl. 503 70 Darrah v. Boyce, 02 Mich. 4S0, 29 N. W. 102 11 Darst v. Phillips, 41 Ohio St. 514 12 Dascouib v. Marston, SO Me. 223. 13 Atl. SSS 188 Dashiell v. Attorney General, 5 Har. & J. (Aid.) 392 190 Davenport v. Davenport, 7 Hare, 217, 222 299, 300 v. Sargent, 63 N. H. 538, 4 Atl. 569 237 Davidson v. Coon, 125 Ind. 497, 25 N. E. 601 237 Davies v. Austen, 1 Ves. Jr. 247 245 v. Penton, 6 Barn. & C. 216 Ill v. Sear, L. R. 7 Eq. 427 85 Davis v. Bechstein, 69 N. Y. 440, 442 24G v. Boston, 129 Mass. 377 317 v. Browne, 2 Del. Ch. 188 312 v. Duke of Marlborough, 1 Swanst. 74; 2 Swanst. 125 241, 330 v. Dunne, 46 Iowa, 684 150 v. Gray, 16 Wall. 218 330 v. Hubbard, 3S Ala. 185, 189 226 v. Page, 9 Ves. 350 57 v. Parker, 14 Allen, 94, 98, 104 2S6 v. Sawyer, 133 Mass. 289 304 v. Society, 75 N. Y. 362 9 v. Symonds, 1 Cox, 402, 404 129 v. Whittaker, 38 Ark. 435 64 Davis' Appeal, 83 Pa. St. 348 237 Dawson v. Clarke, 18 Yes. 247, 254 192 v. Dawson, 7 Ves. 173 325 Day v. Cooley, 118 Mass. 527 157 v. Hunt, 112 N. Y. 191, 195, 19 N. E. 414 278 v. Luhke, L. R. 5 Eq. 336 279 v. Washburn, 24 How. 352-357 32 Dayton v. Fargo, 45 Mich. 153, 7 N. W. 158 240 Dean v. Walker, 107 111. 540, 545 220 Deane v. Rastron, 1 Anst. 64 141 Deans v. Robertson, 64 Miss. 195, 1 South. 189 37 Dearie v. Hall, 3 Russ. 1, 30, 48 245 De Armond v. De Armond, 10 Ind. 191 160 Deason v. Taylor, 53 Miss. 697 87 De Bruhl v. Maas, 54 Tex. 464 234 Decker v. Gardner, 124 N. Y. 334, 26 N. E. 814 335 Deen v. Milne, 113 N. Y. 303, 309, 20 N. E. S61 275 Deere v. Guest, 1 Mylne & C. 510 289 Deetjen v. Richter, 33 Kan. 410, 6 Pac. 595 . 83 De Give v. Healey, 60 Ga, 391 119 CASES CITED. 359 Page De Graff, Vrieling & Co, v. Wickham (Iowa) 52 N. W. 503 110 De Gray v. Mouinouth Beach Clubhouse Co. (N. J. Ch.) 24 Atl. 388 103 Dehon v. Foster, 4 Allen, 545, 550 30 Deichman v. Arndt, 49 N. J. Eq. 106, 22 Atl. 799 60, 61 Delaware L. & W. R. Co. v. Oxford Iron Co., 38 N. J. Eq. 151 254 Demarest v. Hardham, 34 N. J. Eq. 469 304 Deining v. Merchants' Cotton-Press & Storage Co., 90 Tenn. 300, 17 S. AY. 89 255 Denis v. Leclerc, 1 Mart. (La.) 297. ...". 308 Denny v. Faulkner, 22 Kan. 89, 100 227 v. Hancock, 6 Ch. App. 1 137, 276 Dent v. Bennett, 4 Mylne & C. 269 153 v. Dent, 30 Beav. 363 231 v. Ferguson, 132 U. S. 50, 10 Sup. Ct. 13 40 Denton v. Denton, 1 Johns. Ch. 364 325 Depeyster v. Gould, 3 N. J. Eq. 474, 480 196 De Pothonies v. De Mattos, El., Bl. & El. 467 239 Dering v. Earl of Winchelsea, 1 Cox, 318, 1 AYhite & T. Lead. Cas. Eq. 106 41, 252 Desot v. Ross, 95 Mich. 81, 54 N. W. 694 256 Dettra v. Kestner, 147 Pa. St. 566, 23 Atl. S89 105 De Vaughn v. McLeroy, 82 Ga. 687, 10 S. E. 211 78, 79 Devaynes v. Robinson, 24 Beav. 86 210 Devine v. Harkness, 117 111. 147, 7 N. E. 52 256 De Visme, In re, 2 De Gex, J. & S. 17 197 v. De Yisnie, 1 Macn. & G. 346 284 Devlin v. Mayor, etc., 63 N. Y. 9 240 Devron v. First Municipality, 4 La. Ann. 11 9 Dewar v. Maitland, L. R. 2 Eq. 834 54, 56, 58 Dey v. Dunham, 2 Johns. Ch. 182 91 De Zouche v. Garrison, 140 Pa. St. 430, 21 Atl. 450 329 Diamond v. Lawrence Co., 37 Pa. St. 353 94 Diamond Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. 419 296 Dibrill v. Carlisle, 48 Miss. 691 34 Dickerson v. Colgrove, 100 U. S. 578, 580, 584 46, 47, 98 v. Evans, 84 111. 451 105 v. Tillinghast, 4 Paige, 215 95 Dickerson's Appeal, 115 Pa. St. 198, 8 Atl. 04 177 Dickey v. Lyon, 19 Iowa, 545 86 v. Reed, 78 111. 262 21 Diedrichs v. Northwestern Union R. Co., 33 Wis. 219 298 Dilburn v. Youngblood, 85 Ala. 449, 5 South. 175 266 Dillaye v. Commercial Bank, 51 N. Y. 345 208 Dillman v. Nadlehoffer, 119 111. 567, 7 N. E. 88 135 360 CASES CITED. Page Dillon v. Parker, 1 Swanst. 359 52, 57 Dilworth v. Sinderling, 1 Bin. (Pa.) 488 38 Dilworth's Appeal, 108 Pa. St. 92 210 Distilled Spirits, The, 11 Wall. 35G 89 Distrow v. Secor, 58 Conn. 35, 18 Atl. 981 148 Dittman v. Repp, 50 Md. 516 303, 304 Dix v. Cobb, 4 Mass. 508 244 Dixon v. Brown, 32 Ch. Div. 597 119 v. Dixon, 1 Md. Ch. 220 * 234 Docker v. Somes, 2 Mylne & K. 664 249 Docter v. Hellberg, 05 Wis. 415, 27 N. W. 176 273, 277, 286 Dodd v. Bellows, 29 N. J. Eq. 127 328 v. Home Ins. Co., 22 Or. 3, 28 Pac. 881, 884, 29 Pac. 3 15 v. Wilson. 4 Del. Ch. 114, 409, 25 Dodge v. Briggs, 27 Fed. 160 97 v. Davis, S5 Iowa, 77, 52 N. W. 2 86 v. Essex Ins. Co., 12 Gray, 65 140 v. Williams, 4(5 Wis. 70, 1 N. W. 92, and 50 N. W. 1103 GO, 188 Dodkin v. Brunt, L. R. 6 Eq. 580 171 Doe d. Leach v. Micklem, 6 East, 486 128 Doggett v. Lane, 12 Mo. 215 153 Doloret v. Rothschild, 1 Sim. & S. 590 279 Dolphin v. Aylward, L. R. 4 H. L. 486 256 Domestic Tel. Co. v. Metropolitan Tel. Co., 39 N. J. Eq. 160, 165 271 Donlin v. Bradley, 119 111. 412, 10 N. E. 11 , 195 Donovan v. Finn, Hopk. Ch. (N. Y.) 59, 74 23 Dood v. Wakeman, 26 N. J. Eq. 484 283 Doolittle v. Lewis, 7 Johns. Ch. 45 223 Dorn v. Fox, 61 N. Y. 264 328 Dorsey v. Thompson, 37 Md. 25 211 Dorwin v. Smith, 35 Vt. 69 211 Doss v. Ditmars, 70 Ind. 451 219 Douglas v. Union Mut. Life Ins. Co., 127 111. 101, 20 N. E. 51 112 Douglass v. Stephenson's Ex'rs, 75 Va. 747 202 Dovey's Appeal, 97 Pa. St. 153 93 Dow v. Jewell, 18 N. H. 340 195 Dowd v. Tucker, 41 Conn. 197 199 Down v. Board (Idaho) 26 Pac. 167 21 Downie v. Nettleton, 61 Conn. 593, 24 Atl. 977 321 Downing v. Blair, 75 Ala. 216 215 v. Marshall, 37 N. Y. 380, 389 207 Downs v. Collins, 6 Hare, 418, 437 269 Drake v. Root, 2 Colo. 685 214 Dresel v. Jordan, 104 Mass. 407 278 CASES CITED. 361 Page Dresser v. Dresser, 46 Me. 48 174 Drewe v. Corp., 9 Ves. 3G8 285 Drey v. Doyle, 99 Mo. 459, 12 S. W. 2S7 81 Drosier v. Brereton, 15 Beav. 221 204 Drummond v. Alteraus, 60 Fed. 338 309 v. Tracy, 1 Johns. Eng. Ch. 608 171 Drury v. Holden, 121 111. 130, 13 N. E. 547 .219 Dryden v. Frost, 3 Mylne & C. 670 234 Dubuque & S. C. Ry. Co. v. Cedar Falls & M. Ry. Co., 76 Iowa, 702, 39 N. W. 691 292 Duclaud v. Rousseau, 2 La. Ann. 168 214 Dudley v. Congregation of St. Francis, 138 N. Y. 451, 458, 34 N. E. 281.. . 15 v. Dudley, 76 Wis. 567, 45 N. W. 602 161 v. Easton, 104 U. S. 99, 103 100 v. Hurst, 67 Md. 44, 8 Atl. "J01 290 v. Mayhew, 3 N. Y. 9 307 Duff v. Hopkins, 33 Fed. 599 271 v. McDonough, 155 Pa. St. 10, 25 Atl. 60S 94 v. Russell, 14 N. Y. Supp. 134 296 Duffy v. Shockey, 11 Ind. 70 10S Du Hourmelin v. Sheldon, 1 Beav. 79 72 Duke of Ancaster v. Mayer, 1 Brown, Ch. 454, 1 White & T. Lead. Cas. Eq. 881 237 Duke of Beaufort v. Neeld, 12 Clark & F. 248, 286 126 Duke of Norfolk's Case, 3 Ch. Cas. 20, 28, 35 1S1 Duke of Somerset v. Cookson, 3 P. Wins. 389, 1 White & T. Lead. Cas. Eq. 1110 286 Dull's Appeal, 113 Pa. St. 510, 6 Atl. 540 316 Dummer v. Pitcher, 2 Mylne & K. 262 53 Duncan v. Hayes, 22 N. J. Eq. 26 °03 v. Wallace, 114 Ind. 169, 170, 16 N. E. 137 237 Duncuft v. Albrecht, 12 Sim. 1S9 267 Dungan v. Insurance Co., 46 Md. 469, 499 44 Dungey v. Angove, 2 Ves. Jr. 304 329 Dunlap v. Burnett, 5 Smedes & M. 702 233 Dunman v. Coleman, 59 Tex. 199 229 Dunn, Ex parte, 8 Rich. (N. S.) 207 330 v. Amos, 14 Wis. 106 145 v. Barnum, 2 C. C. A. 265, 51 Fed. 355 96 v. Dunn, 42 N. J. Eq. 431, 7 Atl. 842 149 v. Flood, 28 Ch. Div. 586 274 v. Miller, 96 Mo. 324, 9 S. W. 640 316 v. Record, 63 Me. 17 149 Dunne v. English, L. R. 18 Eq. 524 149 362 CASES CITED. Pac-s Dunphy v. Ryan, 11G U. S. 49S, 6 Sup.' Ct. 48G 2 Punscoinb v. Dunscomb, 1 Johns. Cli. 508 20 Durette v. Briggs, 47 Mo. 356 235 Durfee, In re, 4 R. I. 401 211 Parsley v. Fitzbardinge, 6 Yes. 251 323 Put ton v. Warschauer. 21 Cal. GOO 85, 214 v. Willner, 52 X. Y. 312 148 Puvall v. Wellman, 124 N. Y. 158, 2G N. E. 343 42 Pwigbt v. Hamilton, 113 Mass. 175 29G v. Scranton & W. P. Co., 82 Mich. 624, 47 N. W. 102 25G Pwinel v. Brown, 54 Me. 4G8 10S Pyer v. Pyer, 2 Cox, 92, 93, 1 White & T. Lead. Cas. Eq. 314 194, 197 v. Hargrave. 10 Yes. 505 137 v. Martin, 4 Scam. 146 232 v. Shurtleff, 112 Mass. 1G5 14G Pyer's Appeal, 107 Pa. St. 44G 173 Pynan v. McCulloch, 46 N. J. Eq. 11, 14, 18 Atl. 822 278 E Eads v. Williams. 4 Pe Gex, M. & G. 674, 691 275 Eages v. Wiswall, 2 Paige, 369 322 Eaglesfield v. Marquis of Londonderry, 4 Ch. Piv. 693, 702, 703 121 Earle v. Norfolk & N. B. H. Co., 36 N. J. Eq. 1S8 145 Earl of Aylesf ord v. Morris, 8 Ch. App. 484 142 Earl of Bath v. Sherwin, 4 Brown, Pari. Cas. 373 IS Earl of Glengall v. Frazer, 2 Hare, 99 322 Earl of Granard v. Punkin, 1 Ball. & B. 207 30S Earl of Northumberland v. Earl of Aylesf ord, Amb. 540 58 Earl of Oxford's Case, 2 White & T. Lead. Cas. Eq. Ill 292 Earl of Pertmore v. Taylor, 4 Sim. 182 142 Earl of Pomfret v. Lord Windsor, 2 Ves. Sr. 472, 480 119 Earl Spencer v. Peek, L. It. 3 Eq. 415 323 Earnest's Appeal, 106 Pa. St. 310 197 East v. Polihite, 72 N. C. 562 50 East Birmingham Land Co. v. Pennis, 85 Ala. 565, 5 South. 317 245 Easterbrookes v. Tillinghast, 5 Gray, 17 193 East India Co. v. Boddam, 9 Ves. 464, 466 12 v. Campbell, 1 Ves. Sr. 246 321 v. Henchman, 1 Yes. Jr. 289 148 Eastman v. Amoskeag Manuf 'g Co., 47 N. H. 71 18 v. Plumer, 46 N. H. 464 . 278 v. Savings Bank, 58 N. H. 421 ia CASES CITED. 363 Page Eastwood v. Vinke, 2 P. Wins. 617 00 East & West R. Co. v. East Tennessee, V. & G. It. Co., 75 Ala. 275 298 Eaton v. Benton, 2 Hill (N. Y.) 576 60 v. Davidson, 46 Ohio St. 355, 364, 21 N. E. 442 96 v. Whitaker, 18 Conn. 222, 229 281 Eby's Appeal, 84 Pa. St. 241 72 Eckstein v. Downing, 64 N. H. 248 267 Edison Electric Light Co. v. Sawyer-Man Electric Co., 3 C. C. A. 605, 53 Fed. 592 41 Edineston v. Lyde, 1 Paige (N. Y.) 641 159 Edminster v. Higgins, 6 Neb. 265 233 Edmonds v. Foley, 30 Beav. 2S2 322 Edmonson v. Phillips, 73 Mo. 57 234 Edwards v. Atkinson, 14 Tex. 373 279 v. McLeay, 2 Swanst. 287 138 v. Peterson, 80 Me. 367, 14 Atl. 936 243 v. Thompson, 71 N. C. 177, 181 80 v. Warwick, 2 P. Wms. 171 72 v. West, 7 Ch. Div. 858 71 Edwards' Ex'rs v. Trumbull, 50 Pa. St. 509 229 Egbert v. Brooks, 3 Har. (Del.) 112 206 Egerton v. Brownlow, 4 H. L. Cas. 3, 10 183 Eggleston v. Wagner, 40 Mich. 610, 10 N. W. 37 277 Eichelberger v. Gitt, 104 Pa. St. 64 235 Eilenbecker v. District Ct. of Plymouth Co., 134 U. S. 31, 10 Sup. Ct. 424 9 Eldridge v. Hill, 2 Johns. Ch. 281 IS Ellard v. Llandaff , 1 Ball & B. 241 138 Ellett v. Newman, 92 N. C. 519 331 Ellice v. Roupell, 32 Beav. 299 323 Ellicott v. Warford, 4 Md. 85 330 Ellig v. Naglee, 9 Cal. 685 207 Elliott v. Elliott, 117 Ind. 380, 20 N. E. 2G4 175 v. Fisher, 12 Sim. 505 72 v. Sackett, 108 U. S. 140, 2 Sup. Ct. 375 219 Ellis v. Andrews, 56 N. Y. 85 135 v. Boston, H. & E. R. Co., 107 Mass. 28 330 Ellison v. Ellison, 6 Ves. 662 179 v. Fox, 38 Minn. 454, 38 N. W. 358 128 Elmore v. Johnson, 143 111. 513, 32 N. E. 413 149 Elwood v. Bank, 41 Kan. 475, 21 Pac. 673 331 Emack v. Kane, 34 Fed. 47 311 Emanuel College v. Evans, 1 Ch. R. 18 24 Emeric v. Alvarado, 90 Cal. 444, 27 Pac. 356 91 Emerson v. Cutler, 14 Pick. 108 74 364 CASES CITED. Page Emery v. Lawrence, 8 Cush. 151 213 Bmmerson'a Case, 1 Ch. App. 433 123 Emmerl v. Stouffer, 64 Md. 543, 3 Atl. 273, and 6 Atl. 177 277 Emperor of Austria v. Day, 3 De Gex, F. & J. 217, 23S-241 8, 310 Enebery v. Carter, 98 Mo. 647, 12 S. W. 522 75 England v. Curling. 8 Beav. 129 209 v. Downs, 2 Beav. 522 100 Englar v. Offutt, TO Md. 78, 8G, 10 Atl. 497 28, 209 English v. Newell, 42 N. J. Eq. 82, 6 Atl. 505 205 Ensign v. Ensign, 120 N. Y. 055, 24 N. E. 942 216 v. Kellog, 4 Pick. (Mass.) 5 206 Epes v. Williams* Adm'r (Va.) 17 S. E. 235 127 Equitable Mortgage Co. v. Lowe (Kan.) 35 Pac. 829 257 Erickson v. Fisher, 51 Minn. 300, 53 N. W. 638 136 v. Smith, 79 Iowa, 374, 44 N. W. 681 232, 2:54 Erkens v. Nicolin, 39 Minn. 461, 40 N. W. 507 119 Erlanger v. New Sombrero Phosphate Co., 3 App. Cas. 1218, 1230 150 Errington v. Aynesly, 2 Brown, Ch. 341 20S Eskridge v. McClure, 2 Yerg. (Tenn.) 80 233 Etches v. Lance, 7 Ves. 417 325 Euneau v. Rieger, 105 Mo. 059, 16 S. W. 854 148 Eutaw Place Baptist Church v. Shively, 67 Md. 493, 10 Atl. 244 190 Evans v. Bagshaw, L. It. 8 Eq. 469, 5 Ch. App. 340 201 v. Enloe, 70 Wis. 345, 34 N. W. 918, 36 N. W. 22 233 v. Forstall, 58 Miss. 30 102 v. Llewellin, 1 Cox, 333, 340 145 v. Reading Chemical Fertilizing Co., 160 Pa. St. 209, 28 Atl. 702 303 Brants v. Strode, 11 Ohio, 480 120 Everett v. Dilley, 39 Kan. 73, 17 Pac. 061 282 Everitt v. Everitt, L. R. 10 Eq. 405 152 Everts v. Agnes, 4 Wis. 356 95 Evertson v. Booth, 19 Johns. (N. Y.) 495 257 Ewer v. Hobbs, 5 Mete. (Mass.) 1-3 215 Ewing v. Ewing, L. R. 9 App. Cas. 34 30 Ewins v. Gordon. 49 N. H. 444 282 Exhall Coal Co., In re, 35 Beav. 449 207 Exon v. Dancke (Or.) 32 Pac. 1045 80 Eylar v. Eylar, 00 Tex. 315 SG v. Read, 60 Tex. 387 250 Eyre v. Everett, 2 Russ. 381, 382 12 Ezzell v. Watson, 83 Ala. 120, 3 South. 309 223 CASES CITED. 365- F Page Fahnestock v. Fahnestock, 152 Pa. St. 56, 25 Atl. 313 09 Fairbank v. Cudworth, 33 Wis. 358 299 Fairbanks v. Sargent, 104 N. Y. 108, 116, 117, 9 N. E. 10S, 870 245, 240 Fairchild v. McMahon, 139 N. Y. 290, 34 N. E. 779 135 Fairthorne v. Weston, 3 Hare, 387 312 Falcke v. Gray, 4 Drew. 651 275 Fall v. Hazelrigg, 45 Ind. 581 283 Fall River Bank v. Bufflnton, 97 Mass. 498 50 Fane v. Fane, L. R. 20 Eq. 698 139 Fanning v. Dunham, 5 Johns. Ch. 122, 142-144 37, 42 Farmer v. Farmer, 39 N. J. Eq. 211 151 v. Martin, 2 Sim. 502 161 Farmers' Loan & Trust Co. v. Postal Tel. Co., 55 Conn. 334, 11 Atl. 1S4. . 30 v. Toledo & S. H. R. Co., 4 C. C. A. 501, 54 Fed. 759 94 Farmers' Nat. Bank v. Moran, 30 Minn. 165, 14 N. W. 805 185^ Farmington Village Corp. v. Sandy River Nat. Bank, 85 Me. 47, 26 Atl. 965 17 Farris v. Hughes (Va.) 17 S. E. 518 2S5 Farrow v. Wilson, L. R. 4 C. P. 744 116 Fay v. Fay, 121 Mass. 561 154 Feamster v. Feamster, 35 W. Va. 1, 13 S. E. 53 147 Fee v. Swingly, 6 Mont. 596, 13 Pac. 375 215 Fellows v. Mitchell, 1 P. Wms. 83 20S Fells v. Read, 3 Ves. 70 267 Fenton v. Browne, 14 Ves. 144 135 v. Hughes, 7 Ves. 287 319' v. Mackinac Circuit Judge, 76 Mich. 405, 43 N. W. 437 261 Ferbrache v. Ferbrache, 110 111. 210 281 Ferebee v. Pritchard, 112 N. C. 83, 16 S. E. 903 161 Ferrand v. Corporation of Bradford, 21 Beav. 412 305 Fesmire, Estate of, 134 Pa. St. 67, 19 Atl. 502 205 Field v. Chipley, 79 Ky. 260 241 v. Leiter, 117 111. 341, 7 N. E. 279 263 v. Mayor, etc., 6 N. Y. 179 243 Finch v. Finch, 10 Ohio St. 501, 508 37 Findlay v. Bank of U. S., 2 McLean, 44, Fed. Cas. No. 4,791 255 Finnegan v. City of Fernandina, 15 Fla. 379 23 First African M. E. Soc. v. Brown, 147 Mass. 296, 298, 17 N. E. 549 278 First Nat. Bank v. Damm, 63 Wis. 249, 23 N. W. 497 227 v. Dubuque S. W. Ry. Co., 52 Iowa, 378, 3 N. W. 395 243 v. Kreig (Nev.) 32 Pac. 641 215 v. Sarlls, 129 Ind. 201, 28 N. E. 434 10 366 CASES CITED. Page First Nat Bank of Salem v. Salem Capital Flour-Mills Co., 30 Fed. SO, 95 234 Firth v. Midland Ry. Co., L. It. 20 Eq. 100 277 Fischbeck v. Gross, 112 111. 208 200 Fish v. Miller, 1 Hoff. Ch. 2G7 152 Fishack v. Ball, 34 W. Va. 044, 12 S. E. 856 2S7 Fisher v. Banta, 60 N. Y. 46S 72 v. Tunnard, 25 La. Ann. 179 91 Fitch v. Weber, 6 Hare, 145 76 Fitzgerald v. Beebe, 7 Ark. 310 215 v. Stewart, 2 Russ. & M. 457 241 Fitzmaurice v. Mosier, 116 Ind. 363, 16 N. E. 175, and 19 N. E. ISO 123 Flagg v. Mann, 2 Sumn. 4S0, 533, 557, Fed. Cas. No. 4,847 24, 86 Flamang's Case, 6 Ves. 147; 7 Ves. 305, 308; 18 Ves. 1S4 300 Flanders v. Chamberlain. 24 Mich. 305, 315 226 Fleetwood v. Brown (Ind. Sup.) 9 N. E. 352 124 Fleischner v. Citizens' Real-Estate & Imp. Co. (Or.) 35 Pac. 174 14 Fleming v. Beaver, 2 Rawle (Pa.) 128 255 v. Burnham, 100 N. Y. 1, 9, 2 N. E. 905 278 v. Hislop, 11 App. Cas. 691 303 v. Newton, 1 H. L. Cas. 363, 371, 376 310 Fletcher v. Ashburner, 1 Brown, Ch. 497, 499, 1 White & T. Lead. Cas. Eq. 826 26, 67 v. Ferrill, 9 Dana, 373 94 v. Holmes, 32 Ind. 497, 515 214 v. Peck, 6 Cranch, 87, 133, 134 105 Flight v. Bolland, 4 Russ. 301 273 Florence Min. Co. v. Brown, 124 U. S. 385, 8 Sup. Ct. 531 243 Fluker v. Taylor, 3 Drew, 183 249 Fobes v. Rome, W. & O. R. Co., 121 N. Y. 505, 24 N. E. 919 300 Fogg v. Price, 145 Mass. 513, 14 N. E. 741 277 Folger v. Columbian Ins. Co., 99 Mass. 207 335 F.illausbee v. Johnson, 28 Minn. 311, 9 N.'W. 882 220 Foil's Appeal, 91 Pa. St. 434 200 Foose v. Whitmore, 82 N. Y. 405 175 Forbes v. Ross, 2 Cox, 116 146 Force v. City of Elizabeth, 27 N. J. Eq. 408 116 Ford v. Beech, 11 Q. B. SG6 128 v. Ford, 70 Wis. 19, 49, 33 N. W. 188; 80 Mich. 42, 44 N. W. 1057 09, 78 v. Harrington, 16 N. Y. 285 42 v. Hennessy, 70 Mo. 580 153 v. Joyce, 78 N. Y. 01S 315 v. Lewis, 10 B. Mon. 127 180 v. Smith, 1 McArlhur, 592 232 Foreman v. Hough, 98 N. C. 386, 3 S. E. 912 203 CASES CITED. 367 Page Forrester v. Cotton, 1 Eden, 531 52 v. Flores, 64 Cal. 24, 28 Pac, 107 282 Forster v. Hale, 3 Ves. 696 173 v. Ulman, 64 Md. 526, 3 Atl. 113 2 Foster v. Deacon, 3 Madd. 394 284 v. Foster, 1 Ch. Div. 588 73 v. Hall, 12 Pick. (Mass.) 89 158 v. Mackinnon, L. R. 4 C. P. 704, 711 123 v. Winchester, 92 Ala. 497, 9 South. S3 41 Fouch v. Wilson, 60 Ind. 64 232 Fourth Nat. Bank's Appeal, 123 Pa, St. 4S4, 16 Atl. 779 219 Fowkes v. Pascoe, 10 Ch. App. 343, 350 64, 194 Fowler v. Black, 136 111. 363, 26 N. E. 596 120 v. Bott, 6 Mass. 63 v 115 v. Fowler, 4 De Gex & J. 250 129 v. Garlike, 1 Russ. & M. 232 192 v. Heirs of Rust, 2 A. K. Marsh. 294 232 Fowler's Trust, In re, 27 Beav. 362 55 Fox v. Hall, 74 Mo. 315 98 v. Mackreth, 2 Cox, 320, 2 Brown. Ch. 400, 420; 1 White & T. Lead. Cas. Eq. 125 13S, 14G v. Moyer, 54 N. Y. 128 156 v. Palmer, 25 N. J. Eq. 416 104 Foxwell v. Webster, 2 Drew & S. 250 17 Foxworth v. White, 72 Ala. 224 207 Frail v. Ellis, 16 Beav. 350 235 Frame v. Frame, 32 W. Va. 463, 9 S. E. 901 2S2 Francis v. Wells, 2 Colo. 660 232 v. Wilkinson, 147 111. 370, 35 N. E. 150 145 Frank v. Traylor, 130 Ind. 145, 29 N. E. 486 255 Franklin Sav. Bank v. Taylor, 131 111. 376, 23 N. E. 397 94 Franklin Tel. Co. v. Harrison, 145 U. S. 459, 12 Sup. Ct. 900 274 Franks v. Bollans, 3 Ch. App. 717, 718 75 Fraser v. Trustees, 124 N. Y. 479, 26 N. E. 1034 71 Freelove v. Cole, 41 Barb. 318 42 Freeman v. Cooke, 2 Exch. 654 46, 48 v. Freeman, 43 N. Y. 34 2S1, 282 v. Pope, L. R. 9 Eq. 211 157 v. Sedwick, 6 Gill (Md.) 28 40 Freeworth v. Banks, 8 Ves. 85 64 Frenzel v. Miller, 37 Ind. 1 135 Friedlander v. Texas & P. Ry. Co., 130 U. S. 416, 9 Sup. Ct. 570 245 Friend v. Lamb, 152 Pa. St. 529, 25 Atl. 577 40, 274 Frink v. Stewart, 94 N. C. 484 300 368 CASES CITED. Pas© Frltzler v. Robinson, 70 Iowa, 500, 31 N. W. 01 124 Frue v. Houghton, Colo. 318 267, 273 Fry v, Piatt, 32 Kan. 02, 3 Pac. 781 148 v. Tapsou, 2S Ch. Div. 268 203 Fuller v. O'Neil, 09 Tex. 349, S. W. 1S1 202 Fulton v. Harman, 44 Md. 251 301 Furlong v. Sanford, 87 Va. 50G, 12 S. B. 1048 145 G Gage v. Phillips. 21 Nev. 150, 20 Pae. GO 123 Gaines v. Fuentes, 92 U. S. 17 307 Galbraith v. Lunsford, 87 Tenn. 89. 105. 9 S. W. 305 49 Gallagher v. Gallagher, 31 W. Va. 9, 14, 5 S. E. 297 2S2 Gallego's Ex'rs v. Attorney General, 3 Leigh, 450 187, 190 Gahvay v. Metropolitan El. R. Co., 128 N. Y. 132, 28 N. E. 479 301 Gamble v. Hamilton (Fla.) 12 South. 229 102 v. Queens County Water Co., 123 N. Y. 91, 98, 99, 25 N. E. 201 313 Gandy v. Macaulay, 31 Ch. Div. 1 130 Gans v. Thieine, 93 N. Y. 225, 232 254 Gardner v. Newburgh, 2 Johns. Ch. 162 302, 305 < Garland v. Rives, 4 Rand. (Va.) 282 38 G arner v. Reis, 25 Minn. 475 249 Garrard v. Lauderdale, 2 Rus.3. & M. 452 179 Garrison v. Crowell, 67 Tex. 626, 4 S. W. 69 105 Garvin v. Williams, 44 Mo. 465 152 Gascoigne v. Thwing, 1 Vera. 366 196 Gaskell v. Gaskell, 6 Sim. 643 260 v. Viquesney, 122 Ind. 244, 23^N. E. 791 224 Gaslight & Coke Co. v. Vestry of St Mary Abbott's, 15 Q. B. Div. 1 297 Gass v. Wilhite, 2 Dana (Ky.) 170 188 Gassen v. Hendrick, 74 Cal. 444, 16 Pac. 242 96 Gates v. Cornett, 72 Mich. 420, 40 N. W. 740 144 v. Steele, 58 Conn. 316, 20 Atl. 474 294 Gault v. Wallis, 53 Ga. 675 9 Gawtry v. Leland, 40 N. J. Eq. 323 295 Gay v. Gay, 5 Allen (Mass.) 157 250 v. Witherspoon (Ky.) 16 S. W. 96 145 Gaylord v. City of Lafayette, 115 Ind. 423, 17 N. E. S99 222 Gee v. McMillan, 14 Or. 268, 12 Pac. 417 233 v. Pritchard (1818) 2 Swanst. 402, 413, 418 7, 308, 310, 311 George v. Andrews, 60 Md. 26 220 v. Braddock, 45 N. J. Eq. 757, 18 Atl. 881... 190 v. Taylor, 55 Tex, 97 138 CASES CITED. 369 » Page Gerdine v. Menage, 41 Minn. 417, 43 N. W. 91 121 German American Sav. Bank v. Fritz, 68 Wis. 390, 32 N. W. 123 255 Gest v. Packwood, 34 Fed. 368 96 Gibbes v. Smith, 2 Rich. Eq. 131 211 Gibbs v. Guild, 9 Q. B. Div. 59 140 Gibson v. Goldthwaite, 7 Ala. 281 326, 329 v. Ingo, 6 Hare, 112 267 v. Jeyes, 6 Ves. 266, 271 150 Gifford v. Corrigan, 117 N. Y. 257, 22 N. E. 756 220 Gilbert v. Port, 28 Ohio St. 276, 296 69 v. Sutliff, 3 Ohio St. 149 200 Gilchrist v. Helena, H. S. & S. R. Co., 58 Fed. 70S 21 Gill v. Hardin, 48 Ark. 409, 3 S. W. 519 47 v. Rice, 13 Wis. 549 251 Gillam v. Taylor, L. R. 16 Eq. 581 188 Gillespie v. Moon, 2 Johns. Ch. 585 2S7 Gillett v. Wiley, 126 111. 310, 323, 19 N. E. 287 46 Gilliam v. Chancellor, 43 Miss. 437, 448 15,59 v. McCormack, 85 Tenn. 597, 611, 4 S. W. 521 258 Gilman v. McArdle, 99 N. Y. 451, 2 N. E. 464 173, 182 Gilmer v. Mobile & M. Ry. Co., 79 Ala. 569 103 Gilpatrick v. Glidden, 81 Me. 137, 10 Atl. 464 199 Glass v. Hulbert, 102 Mass. 24, 34 129, 283 v. Rowe, 103 Mo. 513, 15 S. W. 334 273 Gleaton v. Gibson, 29 S. C. 514, 7 S. E. 833 14 Glenorchy v. Bosville, Cas. t. Talb. 5, 1 White & T. Lead. Cas. Eq. 1 184 Glyn v. Duesbury, 11 Sim. 139, 148 328 Godfrey v. Black, 39 Kan. 193, 17 Pac. 849 295 v. Faulkner, 23 Ch. Div. 483 202 v. White, 60 Mich. 443, 27 N. W. 593 11, 203 Godwin v. Collins, 4 Houst. (Del.) 28 273 Goebel v. Iffla, 111 N. Y. 170, 177, 18 N. E. 649 222 Goldsmid v. Goldsmid, 1 Swanst. 211 67 Goldsmith v. Guild, 10 Allen, 239 279 Goldthwaite v. National Bank, 67 Ala. 549 245 Goninan v. Stephenson, 24 Wis. 75 138 Goodell v. Union Ass'n of Children's Home, 29 N. J. Eq. 32 1SS Goodhart v. Hyett, 25 Ch. Div. 190 298 Goodman v. Winter, 64 Ala. 410, 432 11 Goodrich, Estate of, 38 Wis. 492 174 v. Moore, 2 Minn. 61 (Gil. 49) 2 Gordon v. Butler, 105 U. S. 553 135 v. Gordon, 3 Swanst. 400, 475, 477 139 Gordon Tp. v. Shoemaker, 12 Ohio St. 624 40 eq.jur.— 24 370 CASKS CITED. Page Gorham v. Dodge, 122 111. 528, 14 N. E. 44 51 Gorman v. Low, 2 Bdw. Ch. (N. Y.) 324 22 Gormley v. Clark. 134 U. S. 33S, 349, 10 Sup. Ct. 554 14, 15 Gormly v. Gormly, 130 Pa. St. 4G7, 18 Atl. 727 121 Gosling v. Warburton, Cro. Eliz. 128 55 Gothard v. Flynn, 25 Miss. 58 229 Gould v. Cayuga Co. Nat. Bank, 86 N. Y. 75 139, 140 v. Lynde, 114 Mass. 306 194 Gove v. Learoyd, 140 Mass. 524, 5 N. E. 499 194 Gowland v. De Faria, 17 Ves. 20 142 Grabowski's Settlement, In re, L. It. 6 Eq. 12 210 Graham v. Call, 5 Munf. (Va.) 396 277 v. Meyer, 99 N. Y. 611, 1 N. E. 143 138 Grammel v. Carmer, 55 Mich. 201, 21 N. W. 418 243 Grand Rapids School Furniture Co. v. Haney School Furniture Co., 92 Mich. 55S, 52 N. W. 1009 311 danger v. Crouch. 80 N. Y. 494, 499 219 Grant v. Beronio (Cal.) 32 Pac. 556 286 Grapengether v. Fejervary, 9 Iowa, 163 232 Graves v. Coutant, 31 N. J. Eq. 763 234 v. Graves, 29 N. H. 129 194 Gray v. Coan, 40 Iowa, 327 104 v. Supreme Lodge, etc., 118 Ind. 295, 297, 20 N. E. 833 128 v. Suspension Car Truck Manufg Co., 127 111. 1S7, 19 N. E. 874 135 < Waybill v. Braugh, 89 Va. 895, 17 S. E. 558 273, 286 Great Falls Co. v. Worster, 15 N. H. 412, 444 216 Greaves v. Topfield, 14 Ch. Div. 563, 577 29, 103 Green v. Biddle, 8 Wheat. 77 230 v. Bostwick, 1 Sandf. Ch. 185 335 v. Dietrich, 114 111. 636, 3 N. E. 800 196 v. Green, 41 Kan. 472, 21 Pac. 586 96 v. Lyon, 21 Wkly. Rep. 830 2 v. Merchants' Ins. Co., 10 Pick. (Mass.) 402 139 v. Morris & E. R. Co., 12 N. J. Eq. 165 120 v. Price, 13 Mees. & W. 695 110 v. Rick, 121 Pa. St. 130, 15 Atl. 497 95 v. Sargeant, 23 Yt. 460 151 v. Sevin, 13 Ch. Div. 589 279 v. Spicer, 1 Russ. & M. 395 ISO Greene v. Keene, 14 R. I. 388, 395 23 v. Mmnford, 5 R. I. 472 313 v. Tyler, 39 Pa. St. 301 251 Greenfield Gas Co. v. People's Gas. Co., 131 Ind. 599, 31 N. E. 61 10 Greenfield's Estate, 14 Pa. St. 489 152 CASES CITED. 371 Page Greenhill v. Greenhill, 2 Vern. 679 72 Greeno v. Barnard, 18 Kan. 578 233 Greenough v. Gaskell, 1 Mylne & K. 98 321 v. Small, 137 Pa. St. 128, 20 Atl. 390 08 Greenwaldt v. May, 127 Ind. 511, 27 N. E. 158 294 Greenway, Ex parte, 6 Ves. 812 114, 110 Greer v. Caldwell, 14 Ga. 215 129 Gregg v. Wells, 10 Adol. & E. 90 47 Gregory v. Ingwersen, 32 N. J. Eq. 199 208 Greshain v. Peterson, 25 Ark. 377 325 Gresley v. Mousley 4 De Gex & J. 78 149 Gress v. Evans, 1 Dak. 387, 40 N. W. 1132 97 Gretton v. Haward, 1 Swanst. 409, 413, 433 51, 57 Greville v. Browne, 7 H. L. Cas. 089 237 Grey v. Grey, 2 Swanst. 594, 600 198 Gribben v. Maxwell, 34 Kan. 8, 7 Pac. 5S4 143 Griffies v. Griffies, 11 Wkly. Rep. 943 202 Griffin v. Fries, 23 Fla. 173, 2 South. 266 15, 110 v. Griffin, 18 N. J. Eq. 104 229 { v. Hodshire, 119 Ind. 235, 21 N. E. 741 222 v. Macaulay, 7 Grat. 470 200 Griffith v. Sebastian Co., 49 Ark. 24, 3 S. W. 880 124 v. Scott, 20 Ch. Div. 358 53 Grigsby v. Breckinridge, 2 Bush (Ky.) 480 308 Grimstone v. Carter, 3 Paige, 421 30 Grisby v. Breckinridge, 2 Bush (Ky.) 4S0 308 Grissler v. Powers, 81 N. Y . 57 50 Groff v. State Bank, 50 Minn. 234, 52 N. W. 051 80 Groundie v. Northampton Water Co., 7 Pa. St. 239 102 Gruhn v. Richardson, 12S 111. 178, 21 N. E. 18 232, 234 Grumley v. Webb, 44 Mo. 444 14S Grymes v. Sanders, 93 U. S. 55, 00 125, 120 Guckenheimer v. Angevine, 81 N. Y. 394 250 Guerand v. Dandelet, 32 Md. 561 295 Guggenheimer v. Groeschel, 23 S. C. 274 154 Guild v. Butler, 127 Mass. 386 253 Gulley v. Macy, 84 N. C. 434 91 Gusdorf v. Ikelheimer, 75 Ala. 148 257 Guthrie v. Walrond, 22 Ch. Div. 573 53 Gwynne v. Heaton, 1 Brown, Ch. 8 141 372 CASES C1TKD. H Page Haack v. Welcfcen, 118 N. Y. G7, 23 N. E. 133 53 Backett v. Reynolds. 4 R. I. 512 229 I hidden v. Spader, 20 Johns. 554, 562 23 Haden v. Farmers' & M. Fire Ass'n, 80 Va. 083 270 1 [after v. Strange, 05 Miss. 323, 3 South. 190 80 Hagar v. Brainerd, 44 Vt. 294 210 v. Buck, 44 Vt. 285, 290 24, 239 1 la-rnbeck v. Hagenbeck Zoological Arena Co., 59 Fed. 14 333 I taggerty v. Elyton Land Co., 89 Ala. 428, 7 South. 051 278 1 fcaigh v. Kayo, 7 Ch. App. 409 193 Haight v. Hayt, 19 N. Y. 404 240 Haines v. Carpenter, 1 Woods, 205, 206, Fed. Cas. No. 5,905 333 v. Taylor, 10 Beav. 75 298 Hale v. Nashua & L. R. Co., 00 N. H. 333 334 v. Wilkinson, 21 Grat. (Va.) 75 274 Halfhide v. Fenning, 2 Brown, Ch. 337 209 Hall v. Hall, 50 Conn. 104 229 v. Hardy, 3 P. Wins. 190 270 v. Hill, 1 Dru. & War. 94, 103 55, 59 v. Joiner, 1 S. C. 190 320 v. Knapponberger (Mo. Sup.) 6 S. W. 381 152 v. Looinis, 63 Mich. 709, 30 N. W. 374 272 v. Morgan, 79 Mo. 47 225 v. Sands, 52 Me. 355 150 v. Stout, 4 Del. Ch. 209 323 v. Tunnell, 1 Houst. 320 215 v. Warren, 9 Yes. 005, 008 200 v. Wheeler, 37 Minn. 522, 35 N. W. 377 121 Hallett v. Wylie, 3 Johns. 44 115 Hallett's Estate, In re, 13 Ch. Div. 090, 710, 727, 745 7, 28 Halverson v. Brown, 75 Iowa, 702, 38 N. W. 123 105 Ham v. Johnson (Minn.) 56 N. W. 5S1 277 Hamaker v. Schroers, 49 Mo. 400 109 Hamblin v. Bishop, 41 Fed. 74 141 I [ambriek v. Crawford, 55 Ga. 335 293 v. Russell, 80 Ala. 199, 201, 5 South. 298 222 Hamilton v. Whitridge, 11 Md. 128 304 Hamlin v. Wright, 23 Wis. 491 335 Hammond v. Hopkins, 143 U. S. 224, 250, 12 Sup. Ct. 418 43, 147 v. Messenger, 9 Sim. 327 239- v. Peyton, 34 Minn. 529, 27 N. W. 72 234 v. Winchester, 82 Ala. 470, 2 South. 892 301 CASES CITED. 6t 6 Page Hammonds v. Barclay, 2 East, 227, 235 228 Hanby v. Roberts, Amb. 128 257 Hancock v. Cossett, 45 Fed. 754 ' 314 v. McAvoy, 151 Pa. St. 439, 25 Atl. 48 88 Handley v. Heflin, 84 Ala. GOO, 4 South. 725 13, 320 Hanold v. Kays, G4 Mich. 439, 31 N. W. 420 96 Hansard v. Robinson, 7 Barn. & C. 90 116 Hansbrough's Ex'rs v. Hooe, 12 Leigh (Va.) 316 65 Hansen v. Rounsavell, 74 111. 238 250 Hanson v. Hanson, 70 Me. 508, 511 237 v. Keating, 4 Hare, 1 37 v. Willard, 12 Me. 147 262 Hanstein v. Johnson, 112 N. C. 253, 17 S. E. 155 17 Hapgood v. Rosenstock, 23 Fed. 86 267 Harbers v. Gadsden, 6 Rich. Eq. (S. C.) 284 286 Hardee v. Howard, 33 Ga. 533 10S Hardeman v. Battersby, 53 Ga. 36, 38 116 Harden v. Darwin, 66 Ala. 55 197 Hardin v. Hardin, 34 S. C. 77, 12 S. E. 936 215 Harding v. Fuller, 141 111. 308, 30 N. E. 1053 14, 15 v. Long, 103 N. C. 1, 9 S. E. 445 129, 315 Hardingham v. Thomas, 2 Drew, 353 58 Hardman v. Ellames, 2 Mylne & K. 732 322 Harford v. Purrier, 1 Madd. 532 284 Hargro v. Hodgdon, 89 Cal. 623, 26 Pac. 1106 302 Harmon v. Smith, 38 Fed. 482 237 Harney v. Charles, 45 Mo. 157 120 Harper's Appeal, 04 Pa. St. 315 216 Harral v. Gray, 10 Neb. 186, 4 N. W. 1040 100 Harrington v. Bigelow, 11 Paige, 349 39, 40 v. Keteltas, 92 N. Y. 40 201 Harris v. Bannon, 78 Ky. 568 299 v. Hanie, 37 Ark. 348 234 v. Han-is, 29 Beav. 107 171 v. Tyson, 24 Pa. St. 347, 360 13S, 141 Harrison v. Forth, Finch, Prec. 51 98 v. Gibson, 23 Grat. 212 43 v. Guest, 6 De Gex, M. & G. 42S, 8 H. L. Cas. 481 144 v. Nettleship, 2 Mylne & K. 423 293 v. Smith, 83 Mo. 210 209 v. Wright, 100 Ind. 515 243 Hart v. Swaine. 7 Ch. Div. 42, 46 135 Hartford Fire Ins. Co. v. Haas (Ky.) 9 S. W. 720 125 374 CASES CITED. Page Hartley v. Harrison. 24 N. Y. 170 220 v. Tapley, 2 Gray, 5G5 243 Harvard College v. Armory, 9 Pick. 446, 447, 4G1 204 Haskell v. Haskell, 3 Cush. 542 321 Hatch v. Hatch, 9 Ves. 292 150, 152 v. Village of St. Joseph, 68 Mich. 220, 36 N. W. 36 317 Hatclur v. Hall, 77 Va. 578 43 Hattersley v. Bissett (N. J. Ch.) 25 Atl. Rep. 332 52 Haughwout v. Murphy, 22 N. J. Eq. 531 26 Haven v. Foster, 9 Pick. Ill, 112 119 v. Mehlgarten, 19 111. 95 231 Havens v. Sackett, 15 N. Y. 365 51, 52 Haward v. Peavey, 128 111. 430, 21 N. E. 503 68 Hawes v. Oakland, 104 U. S. 450 313 Hawkins v. Holmes, 1 P. Wms. 770 282 v. McDougal, 125 Ind. 597, 25 N. E. 807 260 Hawley v. Clowes, 2 Johns. Ch. 122 300 v. James, 5 Paige, 318 77 Hawthorne, In re, 23 Ch. Div. 745 31 Haydel v. Hurck, 72 Mo. 253 208 Hayden v. Moffatt, 74 Tex. 647, 12 S. W. 820 91 Haydock v. Haydock, 33 N. J. Eq. 494 145 Hayes v. Livingston, 34 Mich. 384 46 v. Nourse, 114 N. Y. 606, 22 N. E. 40 98 v. Ward, 4 Johns. Ch. 123 254 Hayes' Appeal, 123 Pa. St. 100, 16 Atl. 600 196 Haygarth v. Wearing, L. R. 12 Eq. 320, 327, 328 135 Haynes v. Mico, 1 Brown, Ch. 130 60 v. Nice, 100 Mass. 327 251 V. Thompson, SO Me. 125, 13 Atl. 270 243 v. Waite, 14 Cal. 446 251 v. Whitsett, 18 Or. 454, 22 Pac. 1072 15 Haynesworth v. Cox, Harp. Eq. (S. C.) 117, 119 162 Hay ward v. Andrews, 106 U. S. 672, 675, 1 Sup. Ct. 544 239 v. Hayward, 34 Ch. Div. 198 310 Haywood v. Cope, 25 Beav. 140 138 Hazelrigg v. Bronaugh, 78 Ky. 62 330 Headley v. Bell, 84 Ala. 346, 4 South. 391 293 Hears v. Stanford, Cas. t. Talb. 173 34 Heath v. Williams, 25 Me. 209 305 Hedderly v. Johnson, 42 Minn. 443, 44 N. W. 527 278 Hedges v. Dixon Co., 150 U. S. 182, 14 Sup. Ct. 71 22, 33 Hefiin v. Milton, 69 Ala. 354 281 CASES CITED. 0/0 Page Heine v. Levee Commissioners, 19 Wall. 655, 658 22, 23 Heiskell v. Trout, 31 W. Va. 810, 8 S. E. 557 192 Heisler v. Sharp's Ex'rs, 44 N. J. Eq. 167, 14 Atl. 624 61 Hellams v. Abercrombie, 15 S. C. 110 254 Hellman v. McWilliams, 70 Cal. 449, 11 Pac. 659 173, 177 Hellreigel v. Manning, 97 N. Y. 56 278 Helm v. Boyd, 124 111. 370, 16 N. E. 85 216 Hemphill v. Ross, 66 N. C. 477 216 v. Yerkes, 132 Pa. St. 545, 19 Atl. 342 243 Hemphill's Appeal, 18 Pa. St. 305 204 Hemsley v. Myers, 45 Fed. 283 9 Hendee v. Cleaveland, 54 Vt. 142 150 Henderson v. Johns, 13 Colo. 2S0, 22 Pac. 461 11 v. Overton, 2 Yerg. 394 33 v. Truitt, 95 Ind. 309 225 Hendrick v. Whittemore, 105 Mass. 23 252 Hendrickson v. Hinckley, 17 How. (U. S.) 443, 445 293 Hendrix v. Nunn, 46 Tex. 142 19S Henkle v. Royal Exch. Assur. Co., 1 Ves. Sr. 318 315 Henley v. Hotaling, 41 Cal. 22, 28 217, 21S Hennessey v. Carmony (N. J. Ch.) 25 Atl. 374 301 v. Woolworth, 128 U. S. 440, 9 Sup. Ct. 109 277 Henry v. Henry, 27 Ohio St. 121 2S3 Henshaw v. Wells, 9 Humph. 568 216 Herbert v. Herbert, 49 N. J. Eq. 70, 22 Atl. 7S9 116 Heme v. Meeres, 1 Vera. 465 146 Herrington v. McCullum, 73 111. 476 219 Hess v. Singler, 114 Mass. 56, 59 175 Hess' Estate, 69 Pa, St 272 255 Hetzel v. Barber, 69 N. Y. 1, 9, 11 79, 101 Hewlett v. Pilcher, 85 Cal. 542, 24 Pac. 781 105 Hexter v. Bast, 125 Pa. St. 52, 72, 17 Atl. 252 135 Heyder v. Excelsior Building Loan Ass'n, 42 N. J. Eq. 403, 407, 408. 8 Atl. 310 36, 106 Hiatt v. Williams, 72 Mo. 214 2S1 Hickman v. Green (Mo. Sup.) 22 S. W. 455 8S Hicks v. Hicks, 3 Atk. 273 332 v. Turck, 72 Mich. 311, 40 N. W. 339 30 Hide v. Haywood, 2 Atk. 126 207 Hiester v. Green, 48 Pa. St. 96 233, 235 Higgins v. Breen, 9 Mo. 497 240 v. Parsons, 65 Cal. 280, 3 Pac. 881 315 Highberger v. Stiffler, 21 Md. 338, 352 144, 153 376 CASES CITKD. Page Bile v. Davison. 20 N. J. Eq. 229 313 Hill v. Arnold, 79 Ga. 307 333 v. Barclay, 18 Ves. 50, 58, 02 117 v. Buckley, 17 Yes. 401 280 v. Cook, 1 Ves. & B. 175 70 v. Epley, 31 Pa. St. 331 102 v. Hart-Davies, 21 Ch. Div. 798 310 v. Hoole, 110 N. Y. 299. .",< 12, 22 N. E. 547 246 v. Thompson, 3 Mer. 022 307 Hilton v. Earl of Granville, Craig & P. 283, 292 290, 298 Hinchcliffe v. Hinchcliffe, 3 Ves. 516 65 Hiuchingbroke v. Seymour, 1 Brown, Ch. 395 162 Hinckley, Estate of, 58 Cal. 457 190 Hinde v. Blake, 3 Beav. 235 242 Hine v. Dodd, 2 Atk. 275 92 Ilinkle v. Margerum, 50 Ind. 240 313 Hinson v. Williamson, 74 Ala. 180 205 Hipp v. Babin, 19 How. 271, 277, 278 10, 11 Hitchins v. Pettingill, 58 N. H. 380 2S3 Hitchman v. Stewart, 3 Drew, 271 252 Hixon v. Oneida Co., 82 Wis. 515, 52 N. W. 445 94 Hobart v. Sanborn, 13 N. H. 226 210 Hobbs v. McLean, 117 U. S. 567, 6 Sup. Ct. 870 207 Hobday v. Peters, 28 Beav. 349 152 Hobson v. Trevor, 2 P. Wms. 191 242 Hocker v. Gentry, 3 Mete. (Ky.) 403 70 Hodge v. Amerman, 40 N. J. Eq. 99, 104, 2 Atl. 257 85 v. Giese, 43 N. J. Eq. 342, 11 Atl. 484 290 v. Ludlum, 45 Minn. 290, 47 N. W. 805 49 v. Sloan, 107 N. Y. 244, 17 N. E. 335 103 Hodges v. Kowing, 58 Conn. 12, 18 Atl. 979 11 Hodgson v. Baldwin, 05 111. 532 252 Hoffman v. Junk, 51 Wis. 013, 8 N. W. 493 150 v. Macall, 5 Ohio St 124 180 v. Noble, 6 Mete. (Mass.) 68 95 Hogan v. Jaques, 19 N. J. Eq. 123 192 Hogg v. Kirby, 8 Ves. 223 307 Hoghton v. Hoghton, 15 Beav. 299 152 Holabird v. Burr, 17 Conn. 559 314 Holbrook v. Connor, 00 Me. 578 135 v. New Jersey Zinc Co., 57 N. Y. GIG 94 v. Payne, 151 Mass. 383, 24 N. E. 210 243 Holden v. New York & E. Bank, 72 N. Y 286, 292. 89 CASES CITED. 377 Page Holland v. Adams, 3 Gray, 188, 191 74 v. Alcock, 108 N. Y. 312, 16 N. E. 305 190 v. Anderson, 38 Mo. 55 14 v. Cruft, 3 Gray, 162 74 v. Trotter, 22 Grat. 136 117 Hollenbeck v. Donnell, 94 N. Y. 312 333 Holley v. Anness (S. C.) 19 S. E. 646 , 11 v. Hardeman, 76 Ga. 328 250 Holllngshead v. Webster, 37 Ch. Div. 659 34 Hollinshead v. Simms, 51 Cal. 158 198 Hollis v. Francois, 5 Tex. 195 153 Hollocher v. Holloeher, 62 Mo. 267 145 Holman v. Patterson, 29 Ark. 357 235 Holmes v. Buckner, 67 Tex. 107, 2 S. W. 452 91 v. Caden, 57 Vt. Ill 281 v. Dring, 2 Cox, 1 204 v. Gardner, 50 Ohio St. 167, 33 N. E. 644 105 v. Holmes, 86 N. C. 205 281 v. Mead, 52 N. Y. 332, 343 172 v. Powell, 8 De Gex, M. & G. 572, 580, 5S1 S5 Holmes' Appeal, 77 Pa. St. 50 276 Holroyd v. Marshall, 10 H. L. Cas. 191 229, 242 Holsman v. Boiling Spring Co., 14 N. J. Eq. 335 305 Holton v. Noble, 83 Cal. 7, 23 Pac. 58 134, 137 Honore's Ex'r v. Bakewell, 6 B. Mon. 67 234 Honzik v. Delaglise, 65 Wis. 499, 27 N. W. 171 S5 Hood v. Fahnestock, 8 Watts, 4S9 105 v. Hood, 85 N. Y. 561 72 Hooker v. Oxford, 33 Mich. 454 199 Hooper v. Smart, L. R. 18 Eq. 683 2S6 v. Winston, 24 111. 353 330 Hopkins, Appeal of (Pa.) 9 Atl. 867 209 v. Garrard, 7 B. Mon. 312 8(5 v. Gilman, 22 Wis. 476 269, 277 v. Hopkins, 1 Atk. 591 16S Hopkinson v. Forster, L. K. 19 Eq. 74 243 v. Roe, 1 Beav. ISO 207 Hopper v. Conyers, L. R. 2 Eq. 549 209 Hoppock's Ex'rs v. United New Jersey R. & C. Co., 27 N. J. Eq. 286 320 Horbach v. Hill, 112 U. S. 149, 5 Sup. Ct 81 157 Horn v. Cole, 51 N. H. 287 46, 48, 49 Horstman v. Kaufman, 97 Pa. St. 147 321 Hotchkys, In re, 32 Ch. Div. 408 53 378 CASES CITED. Page Houghton, Ex parte, 17 Ves. 2.~>3 395 v. Davenport, 74 Me. 500 200 Hoult v. Donahue, 21 W. Va. 204, 300 35 Houseman v. Girard Mut Bldg. & L. Ass'n, 81 Pa. St. 25G, 262 80 Houston v. Bryan, 78 Ga. 181, 1 S. E. 252 147 v. Timmerman, 17 Or. 400, 21 Pac. 1037 03, 04 Hovey v. Dary, 154 Mass. 7, 27 N. E. G50 74 How v. Tenants of Bronisgrove (1681) 1 Vera. 22 16 v. Vigures, 1 Ch. It. 32; Totn. 132 213 Howard v. Folger. 15 Me. 447 324 v. Gould. 28 Vt. 525 138 v. Harris, 1 Vera. 190, 2 White & T. Lead. Cas. Eq. 1040 213 v. Kobinson, 5 Cush. 110, 123 215 Howe, In re, 1 Paige, 125, 214 170, 220 v. Harding, 76 Tex. 17, 13 S. W. 41 233 v. Howe, 00 Mass. 88 145 v. Xickerson, 14 Allen (Mass.) 400 270 v. Wilson, 01 Mo. 45, 3 S. W. 300 100 Howell v. Coupland, L. R. Q. B. 462 115 v. Tomkins, 42 N. J. Eq. 305, 11 Atl. 333 57 Howe Maeh. Co. v. Farrington, 82 N. Y. 121 47, 130 Howorth v. Dewell, 20 Beav. 18 174 Howze v. Mallett, 4 Jones, Eq. 104 62 Hoyt v. Godfrey, 88 N. Y. 669 155, 150 v. Hoyt, 85 N. Y. 142 237 Hudkins v. Ward, 30 W. Va. 204, 3 S. E. 600 257 Hudson v. Bartram, 3 Madd. 440 270 v. Dismukes, 77 Va. 242 257 Huff v. Shepard, 58 Mo. 242 277 Huggensin's Case, 2 Atk. 460, 488 310 Hughes, Ex parte, 6 Ves. 617 14S v. Jones, 116 N. Y. 67, 22 N. E. 446; 3 De Gex, F. & J. 307 143, 286 v. Morris, 2 De Gex, M. & G. 340, 356 282 Hugonin v. Basely, 13 Ves. 107 330 Huguenin v. Baseley, 14 Ves. 273, 275, 2 White & T. Lead. Cas. Eq. 1156. . 151—153 v. Courtenay, 21 S. C. 403 274 Huhlien v. Huhlien (Ky.) 8 S. W. 260 51 Huish, In re, 43 Ch. Div. 260 61 Hull v. Pitrat, 45 Fed. 04 267 Humphreys v. Merrill, 52 Miss. 02 100 Hun v. Cary, 82 N. Y. 65 202 Hunkins v. Hunkins, 65 N. H. 95, 18 Atl. 655, 665. 278, 2S2 CASES CITED. 379 Page Hunsinger v. Hofer, 110 Ind. 390, 11 N. E. 463 156 Hunt v. Fowler, 121 111. 269, 276, 12 N. E. 331, and 17 N. E. 491 188, 190 v. Peake, Johns. Eng. Ch. 710 304 v. Rousmanier, 8 Wheat 174, 211, 212 32, 119, 120 v. Smith, 139 111. 296, 28 N. E. 809 286 Hunter v. Anderson, 152 Pa. St. 3S6, 25 Atl. 538 75 v. Carroll, 64 N. H. 572, 15 Atl. 17 40 v. Dennis, 112 111. 56S 224 v. Walters, 7 Ch. App. 81 123 v. Watson, 12 Cal. 263 100 Hunt's Appeals, 105 Pa. St. 128, 141 69 Hurtado v. California, 110 U. S. 530, 4 Sup. Ct. Ill, 292 2 Huston's Appeal, 69 Pa. St. 485 258 Hutchinson v. Ainsworth, 73 Cal. 458, 15 Pac. 82 129 v. Gilbert, 86 Tenn. 464, 469, 7 S. W. 126 237 Hutton v. Hutton, 40 N. J. Eq. 461, 2 Atl. 280 30 Hyde v. Baldwin, 17 Pick. 303 51 v. Redding, 74 Cal. 493, 16 Pac. 380 317 Hyett v. Mekin, 25 Ch. Div. 735 73 Hylton v. Hylton, 2 Ves. Sr. 547-549 150, 152 Ikerd v. Beavers, 106 Ind. 483, 7 N. E. 326 273 Illinois Cent R. Co. v. McCullough, 59 111. 166 86 Imbert, Ex parte, 1 De Gex & J. 152 250 Imperial Gaslight & Coke Co. v. Broadbent 7 H. L. Cas. 600 298 Ind v. Emmerson, 12 App. Cas. 300 106 Indianapolis Water Co. v. American Strawboard Co., 57 Fed. 1000 305 Ingle v. Richards, 28 Beav. 361 147 Ingram v. Morgan, 4 Humph. (Tenn.) 66 36 Insurance Co. v. Mowry, 96 U. S. 544, 547 47 v. Raden, 87 Ala. 311, 5 South. 876 120 Ionides v. Pender, L. R. 9 Q. B. 531, 537 139 Irick v. Black, 17 N. J. Eq. 189 254 Iron Age Pub. Co. v. W. U. Tel. Co., 83 Ala. 498, 3 South. 449 20S, 273, 277 Irvine v. Grady, 85 Tex. 120, 19 S. W. 1028 88 v. Sullivan, L. R. 8 Eq. 675 193 Irving Nat Bank v. Alley, 79 N. Y. 536, 540 48 Irwin v. Lewis, 50 Miss. 363 290 Irwin's Appeal, 35 Pa. St. 294 205 Isaac v. Defriez, Amb. 595 188 ^80 CASES CITED. Page Isaacs v. Strainka, 95 Mo. 517, 8 S. W. 427 276 I BaacBOO v. Harwood, 3 Ch. App. 225 210 lvis v. Ashley, 97 Mass. 19S 151 v. Hazard, 4 R. I. 14 273 v.Stone, 51 Conn. 440 91 J Jackens v. Nicholson, 70 Ga. 200 260 Jacknian v. Mitchell, 13 Ves. 581 154 Jackson v. Allen, 120 Mass. 79 47 v. Dubois, 4 Johns. 216 100 v. Duke of Newcastle, 3 De Gex, J. & S. 284 303 v. Lynch, 129 111. 72, 21 N. E. 5S0, and 22 N. E. 240 95, 217 v. Phillips, 14 Allen, 539, 556 187, 189 v. Rowe, 2 Sim. & S. 472 96 v. Van Valkenburgh, 8 Cow. 260 92 v. Veeder, 11 Johns. 169, 171 162 Jacob v. Lucas, 1 Beav. 436 201 Jacobs v. Morange, 47 N. Y. 57 119 Jacornb v. Knight, 3 De Gex, J. & S. 538 289 Jacoway v. Gault, 20 Ark. 190 90 Jaeger v. Hardy, 48 Ohio St. 335, 27 N. E. 863 86 v. Kelley, 52 N. Y. 274 158 James, Ex parte, 9 Ch. App. 609; 8 Ves. 348 119, 147 v. Cowing, 82 N. Y. 449 200 v. Cutler, 54 Wis. 172, 10 N. W. 147 315 Jaques v. Swasey, 153 Mass. 596, 27 N. E. 771 64 Jaquith v. Hudson, 5 Mich. 123, 136, 137 10S Jaudon v. Ducker, 27 S. C. 295, 3 S. E. 465 237 Jefferys v. Boosey, 4 H. L. Cas. 833 307 v. Jefferys, Craig & P. 138 27 v. Smith, 1 Jac. & W. 298 333 Jeffries v. Evans, 6 B. Mon. 119 245 v. Ferguson, 87 Mo. 244 252 Jemmison v. Gray, 29 Iowa, 537 109 Jenkins v. Clement, 1 Harp. Eq. (S. C.) 72, 14 Am. Dec. 705 157 Jennings v. Broughton, 5 De Gex, M. & G. 126 137 v. Moore, 83 Mich. 231, 47 N. W. 127 219 Jennisons v. Leonard, 21 Wall. 302 279 Jenny v. Crase, 1 Cranch, C. C. (U. S.) 443, Fed. Cas. No. 7.2S5 298 Jermy v. Preston, 13 Sim. 356 73 Jerome v. McCarter, 94 U. S. 734, 738 (canal) 334 CASES CITED. 381 Page Jesus College v. Bloom, 3 Atk. 262, 2G3 13 Jew v. Wood, Craig & P. 185 329 Job v. Job, 6 Ch. Div. 562 202 John A. Roebling Sons' Co. v. First Nat. Bank, 30 Fed. 744 301 Johnson v. Bartlett, 17 Pick. 477 255 v. Bloodgood, 1 Johns. Cas. 51 230 v. Brooks, 93 N. Y. 337, 343 266, 267 v. Dougherty, 18 N. J. Eq. 406 2S v. Giles, 69 Ga. 652 198 v. Hoover, 72 Ind. 395 270 v. Houston, 47 Mo. 227 216 v. Leman, 131 111. 609, 23 N. E. 435 207 v. Medlicott, 3 P. Wins. 130 144 v. Moore, 33 Kan. 90, 5 Pac. 406 256 v. Shrewsbury & B. R. Co., 3 De Gex, M. & G. 914 268 v. Straus (C. C. Va.) 4 Hughes, 621-639, 26 Fed. 57 33 v. Telford, 1 Russ. & M. 244 54 v. Thomas, 77 Ala. 367 250, 251 v. Tucker, 2 Tenn. Ch. 398 335 v. Williams, 37 Kan. 179, 14 Pac. 537 98 v. Zink, 51 N. Y. 333 219 Johnston v. Newton, 11 Hare, 1G0 202 v. Trippe, 33 Fed. 530, 536 273 v. Wadsworth (Or.) 34 Pac. 13 273 Jolland v. Stainbridge, 3 Ves. 478 S3, 92 Jones v. Alephsin, 16 Ves. 471 325 v. Gibbons, 9 Ves. 410 244 v. Habersham, 107 U. S. 174, 2 Sup. Ct. 330 1SS v. Jones, 8 Gill (Md.) 197 54 v. Lewis, 2 Ves. Sr. 240 110, 117 v. Lloyd, 117 111. 597, 7 N. E. 119 210 v. Lock, 1 Ch. App 25 178 v. Lockard, 89 Ala. 575, 8 South. 103 232, 234 v. Lusk, 2 Mete. (Ky.) 350 94 v. Mason, 5 Rand. (Va.) 577 59, 62, 64 v. Mayor, etc., 90 N. Y. 3S7 242 v. Munroe, 32 Ga. 181 120 v. Newhall, 115 Mass. 244 2G6 v. Pugh, 1 Phil. Ch. 9G 321 v. Renshaw, 130 Pa. St. 327, 18 Atl. 651 190 v. Robbins, 29 Me. 351 279 v. Roberts, 6 Call (Va.) 187 38 v. Sampson, 8 Ves. 593 325 382 CASES CITED. Page Jones v. Shaddock, 41 Ala. 262 208 v. Smith, 1 Hare, 43, G3; 2 Ves. Jr. 372, 378 8G, 87, 227 v. Williams, Amb. 651 ; 39 Wis. 300 188, 250 v. Zollicoffer, N. C. Term R. 212 35 Jope v. Morshead, 6 Beav. 213 2G1 Jordan v. Cheney, 74 Me. 359 218 v. Lanier, 73 N. C. 90 300 v. Miller, 75 Va. 442 332 v. Sayre, 29 Fla. 100, 10 South. S23 214 v. Stevens, 51 Me. 78 120 v. Volkenning, 72 N. Y. 300, 306 135 Joseph v. Macowsky, 96 Cal. 518, 31 Pac. 914 40 Joy v. St. Louis, 138 U. S. 1, 11, 47, 50, 11 Sup. Ct. 243 22, 269 Judge of Probate v. Mathes, 60 N. H. 433 204 Justice v. Wynne, 12 Ir. Ch. 289 244 K Kahn v. Walton, 46 Ohio St. 195, 20 N. E. 203 39, 41 Kain v. Gibboney, 101 U. S. 362 191 Kamena v. Huelbig, 23 N. J. Eq. 78 245 Kannady v. McCarron, 18 Ark. 166 215 Kansas City Land Co. v. Hill, 87 Tenn. 589, 11 S. W. 797 SS Katz v. Brewington (Md.) 20 Atl. 139 332 Kauffelt v. Bower, 7 Serg. & R. 64, 76 231, 233 Kavanagh v. Railroad Co., 78 Ga. 271, 273, 2 S. E. 636 18 Kay v. Kirk, 76 Md. 41, 24 Atl. 326 305 v. Whittaker, 44 N. Y. 565, 572 222 Kearny v. Jeffries, 48 Miss. 357 320 Keate v Phillips, 18 Ch. Div. 560, 577 46 Keating v. Sparrow, 1 Ball & B. 373 Ill Keeble v. Keeble, 85 Ala. 552, 5 South. 149 108, 110, 111 Keech v. Hall, Doug. 22 214 v. Sandford, 1 White & T. Lead. Cas. Eq. 53 199 Keighler v. Savage Manuf g Co., 12 Md. 383 148 Keister v. Myers, 115 Ind. 312, 17 N. E. 161 127 Keith v. Kellam, 35 Fed. 243 148 Kekewich v. Manning, 1 De Gex, M. & G. 187, 188 179 Keller v. Ashford, 133 U. S. 610, 620, 10 Sup. Ct. 494 220 v. Harper, 64 Md. 74, 1 Atl. 65 70 Kelley v. Jenness, 50 Me. 455 195 v. Mayor, etc, of Brooklyn, 4 Hill, 265 243 CASES CITED. 383 Page Kelly v. Central Pac. R. Co., 74 Cal. 557, 16 Pac. 386 274, 276 v. Kauffman, 18 Pa. St. 351 253 v. Kelly, 54 Mich. 47, 19 N. W. 580 256 v. McGrath, 70 Ala. 75 160 v. Smith, 73 Wis. 191, 41 N. W. 69 144 v. Turner, 74 Ala. 513 120 Kelso v. Reid, 145 Pa. St. 006, 23 Atl. 323 110 Kemble v. Farren, 6 Bing. 141 107, 109 Kemp v. Westbrook, 1 Ves. Sr. 278 226 Kemper v. Campbell, 44 Ohio St. 210, 6 N. E. 566 91 Kendall, Ex parte, 17 Ves. 514, 520, 526, 527 32, 258 v. Granger, 5 Beav. 300, 302 187 Kendrick v. Eggleston, 56 Iowa, 128, 8 N. W. 786 232 Kennedy v. Daly, 1 Schoales & L. 355, 379 98 v. Green, 3 Mylne & K. 699, 718 123 V. Johnston, 65 Pa. St. 451 57 v. Parke, 17 N. J. Eq. 415 245 v. St. Paul & P. R. Co., 5 Dill. 519, Fed. Cas. No. 7,707 334 Kenner v. Bitely, 45 Fed. 133 285 Kent v. Dunham, 142 Mass. 216, 7 N. E. 730 190 v. Gerhard, 12 R. I. 92 233, 235 Kenyon v. Welty, 20 Cal. 637 119 Kerby v. Kerby, 57 Md. 345 14S Kerr v. Corporation of Preston, 6 Ch. Div. 463 9 Ketcham v. Brazil Block Coal Co., 88 Ind. 515 329 Ketchum v. Mobile & C. R. Co., 2 Woods, 532, Fed. Cas. No. 7,737 211 v. Spurlock, 34 W. Va. 597, 12 S. E. 832 12S Kettle River R. Co. v Eastern Ry. of Minn., 41 Minn. 461, 43 N. W. 469. . 103 Keyes v. Carleton, 141 Mass. 49, 6 N. E. 524 177 v. Wood, 21 Vt. 331 218 Keys v. Williams, 3 Younge & C. 55, 462, 466, 467 229, 239 Keyser's Appeal, 57 Pa. St. 236 180 Kidd v. Horry, 28 Fed 773 311 Kilbee v. Sneyd, 2 Moll. 199, 200 203 Kilbourn v. Sunderland, 130 U. S. 505. 518, 9 Sup. Ct. 594 11, 140 Killian v. Ebbinghaus, 110 U. S. 56S, 573, 4 Sup. Ct. 232 10, 328, 329 Kimball v. Donald, 20 Mo. 577 243 v. Gafford, 78 Iowa, 65, 42 N. W. 583 242 v. Morton, 5 N. J. Eq. 26 266 Kimmel v. Lowe, 28 Minn. 265, 9 N. W. 764 254 King v. Denison, 1 Ves. & B. 272 193 v. French, 2 Sawy. 441, Fed. Cas. No. 7,793 27 v. King, 6 Ves. 172 313, 332 v. Payn, 18 Ark. 583, 587, 588 13 334 CASES CITED. Pag© King v. Portis, 77 N. C. 25 91 v. Smith. 2 Hare, 244 299 v. Talbot, 40 N. Y. 70, 85, 80 202-204 v. Wilson, Beav. 120 279 v. Young Men's Ass'n, 1 Woods, 380, Fed. Cas. No. 7,811 235 Kinne v. Webb, 54 Fed. Rep. 34 101 Kinney v. Kinney's Ex'r, 80 Ky. 010, 6 S. W. 593 1S8, 190 Kirby v. Railroad Co., 120 U. S. 130, 137, 7 Sup. Ct. 430 140 Kirchner v. New Home S. M. Co., 135 N. Y. 182, 31 N. E. 1104 130 Kirk v. Eddowes, 3 Hare, 509, 519 59, 03, 04 v.Roberts (Cal.) 31 Pac. 020 100 v. Williams, 24 Fed. 437 235 Kirkpatrick v. Rogers, 7 Ired. Eq. 44 237 Kirksey v. Fike, 27 Ala. 383 209 Kirwan's Trusts, In re, 25 Ch. Div. 373 101 Kisterbock's Appeal, 51 Pa. St. 485 157 Kitchell v. Mudgett, 37 Mich. 82 250 v. Young, 40 N. J. Eq. 500, 19 Atl. 729 237 Kitteridge v. Chapman, 30 Iowa, 348 90 Klein v. McNamara, 54 Miss. 90 217 Kleinsorge v. Rohse (Or.) 34 Pac. 874 125 Kline v. Kline, 57 Pa. St. 120 101 v. Yogel, 90 Mo. 239, 245, 1 S. W. 733, and 2 S. W. 408 37 Knapp v. Bailey, 79 Me. 195, 9 Atl. 122 82 Knatchbull v. Grueber, 3 Mer. 124 285 v. Hallett, 13 Ch. Div. 090, 710 21, 209 Kneeland v. American Loan & Trust Co., 130 U. S. 89, 10 Sup. Ct. 950. . 334 v. Bass Foundry & Mach. Works, 140 U. S. 592, 11 Sup. Ct. 857 334 v. Luce. 141 U. S. 491, 12 Sup. Ct 32 334 Knight v. Glasscock, 51 Ark. 390, 11 S. W. 580 127 v. Knight, 3 Beav. 148, 172 174 Knobloch v. Mueller, 123 111. 554. 17 N. E. 090 105 Knoll v. Harvey, 19 Wis. 99 2S1 Knouff v. Thompson, 10 Pa. St. 301, 303 102 Knowlton v. Keenan, 140 Mass. 80, 15 N. E. 127 134 v. Walker, 13 Wis. 204 91 Knox v. Easton, 38 Ala. 345 215 v. Knox, 59 Wis. 172, IS N. W. 155 174 Knox Co. v. Harsham, 133 U. S. 152, 10 Sup. Ct. 257 293 Konitzky v. Meyer, 49 N. Y. 571 254 Konvalinka v. Geibel, 40 N. J. Eq. 443, 440, 3 Atl. 200 70 Koons v. Blanton, 129 Ind. 383, 27 N. E. 334 '. . 43 Kopper v. Dyer, 59 Vt. 477, 9 Atl. 4 117 Kornegay v. Everett, 99 N. C. 30, 5 S. E. 418 120 CASES CITED. 385 Page Kraemer v. Adelsberger, 122 N. Y. 467, 25 N. E. 859 218 Kraft v. Lohniaii, 79 Ala. 323 211 Kramer v. Williamson, 135 Ind. 655, 35 N. E. 388 136 Kreamer v. Earl, 91 Cal. 112, 27 Pac. 735 272 Kramm v. Beach, 96 N. Y. 398, 406 139 Kullman v. Greenebaum, 92 Cal. 403, 28 Pac. 674 154 Kyger v. Ryley, 2 Neb. 20, 28 215 Kyle v. Fehley, 81 Wis. 67, 51 N. W. 257 120 L Labadie v. Hewitt, 85 111. 341 260 Lacey, Ex parte, 6 Ves. 629 147 Laclede Bank v. Schuler, 120 U. S. 511, 516, 7 Sup. Ct. 644 243. 244 Ladd v. Osborne, 79 Iowa, 93, 44 N. W. 235 18, 301 Lady Thynne v. Earl of Glengall, 2 H. L. Cas. 131, 153 60, 64, 65 Lafferty v. People's Sav. Bank, 76 Mich. 35, 43 N. W. 34 237 Lagow v. Badollet, 1 Blackf. 416 232 Lahr v. Metropolitan El. Ry. Co., 104 N. Y. 268, 10 N. E. 52S 306 Laidlaw v. Organ, 2 Wheat. 178 138 Lake v. Brutton, 18 Beav. 34 255 v. Craddock, 3 P. Wms. 158. 1 White & T. Lead. Cas. Eq. 265. ..195, 231 v. Gilson, 1 White & T. Lead. Cas. Eq. 178 32 Lamb v. Montague, 112 Mass. 352, 353 224, 255 v. Pierce, 113 Mass. 72 82 Lambe v. Eames, 6 Ch. App. 597 175 Lambert v. Newman, 56 Ala. 623, 625, 626 83 Lamm v. Chicago, St. P., M. & O. Ry. Co., 45 Minn. 71, 47 N. W. 455 306 Lampet's Case, 10 Coke, 48 238 Lancaster v. Roberts (111. Sup.) 33 N. E. 27 2S6 Lancaster Co. Nat. Bank, v. Moore, 78 Pa. St. 407, 414 144 Lance v. Norman, 2 Ch. R. 79 160 Lancy v. Randlett, 80 Me. 169, 13 Atl. 6S6 320 Land Co. v. Peck, 112 111. 408, 451 235 Landon v. Townshend, 112 N. Y. 93, 98, 19 N. E. 424 222 Lane v. Dighton, Amb. 409 209 v. Marshall, 1 Heisk. (Tenn.) 30, 34 13 Langdon v. Astor's Ex'rs, 16 N. Y. 9, 39-41 63, 64 v. Sherwood, 124 U. S. 81, 8 Sup. Ct. 429 31 v. Templeton, 66 Vt. 173, 28 Atl. 866 41 Langford v. Barnard, Toth. 134 24 v. Gascoyne, 11 Ves. 333 205 Langham v. Sanford, 17 Ves. 442 193 eq.jtjk. — 25 386 CASES CITED. Page Lansing t. Smith, 8 Cow. (N. Y.) 146 301 Lant'a Appeal. 95 Pa. St. 279 120 Lapham v. Clapp, 10 R. I. 543 237 Larabrle v. Brown, 20 Law J. Eq. 605 326 Latham v. Inman, 88 Ga. 505, 15 S. E. 8 98 Lathrop v. Bampton, 31 Cal. 17 210 v. Sinalley, 23 N. J. Eq. 192 211 Lattimore v. Simmons, 13 Serg. & R. 183 240 Latymer's Charity, In re, L. R. 7 Eq. 353 188 Laughlin v. Mitchell, 14 Fed. 382 190 Laughton v. Harden, 68 Me. 213 158 Lavender v. Abbott, 30 Ark. 172 235 Lavenson v. Standard Soap Co., 80 Cal. 245. 22 Pac. 184 299 Law v. Grant, 37 Wis. 548 138 La wes v. Bennett, 1 Cox, 167 71 Lawrence v. Clark, 36 N. Y. 128 154 v. Fox, 20 N. Y. 268 220 v. Lawrence, 42 N. H. 109 110 v. Rokes, 61 Me. 38 43 Lawson v. Wooden-Wire Co., 59 Wis. 393, 18 N. W. 440 305 Lawton v. Gordon, 37 Cal. 202 S3 Lazard v. Wheeler, 22 Cal. 139 240 Leach v. Duvall, 8 Bush (Ky.) 201 160 Learned v. Hunt, 63 Miss. 373 305 Leather Cloth Co. v. American Leather Cloth Co., 4 De Gex, J. & S. 137... 309 v. Lorsont, 39 Law J. Ch. 86 296 Leather Manuf'rs' Nat Bank v. Morgan, 117 U. S. 96, 10S, 6 Sup. Ct. 657 47, 49 Leavers v. Clayton, 8 Ch. Div. 584 189, 192 Leavitt v. Reynolds, 79 Iowa. 348, 44 N. W. 507 219 v.Yates, 4 Edw. Ch. 102 330 Lebanon Sav. Bank v. Hollenbeck, 29 Minn. 322, 13 N. W. 145 S9 Lechmere v. Earl of Carlisle, 3 P. Wms. 211, 215, Cas. t. Talb. 88 66, 68 v. Lechmere, Cas. t. Talb. 80 28,78 Ledyard v. Butler, 9 Paige, 132 105 Lee v. Clary, 38 Mich. 223 215 v. Gregory, 12 Neb. 282. 11 N. W. 297 258 v. Kirby, 104 Mass. 420 275 v. Overstreet, 44 Ga. 507 109 v. Percival, 85 Iowa, 039, 52 N. W. 543 128 v. Young. 2 Younge & C. Ch. 532 211 Leech v. Schweder, 9 Ch. App. 463, 405 295 Le Gendre v. Byrnes, 44 N. J. Eq. 372, 14 Atl. 621.. 148 CASES CITED. 387 Page Legg v. Goldwire, 1 White & T. Lead. Cas. Eq. 17 129 Lehigh Val. R. Co. v. McFarlan, 31 N. J. Eq. 730 17 v. Woodring, 11G Pa. St. 513, 9 Atl. 58 243 Lehman v. Collins, 69 Ala. 127 229 Lehmann v. McArthur, 3 Ch. App. 496 43 Leicester v. Rose, 4 East, 372 154 Leighton v. Orr, 44 Iowa, 679 145 v. Young, 10 U. S. App. 301, 3 C. C. A. 176, 52 Fed. 439 15 Leitch v. Wells, 48 N. Y. 585, 613 94 Lembeck v. Nye, 47 Ohio St. 336, 24 N. E. 686 18, 300 Lemmond v. Peoples, 6 Ired. Eq. (N. C.) 137 180 Lench v. Lench, 10 Ves. 517 196 Le Neve v. Le Neve (1747) Amb. 436, 2 White & T. Lead. Cas. Eq. (4th Am. Ed.) 109 92 Lent v. Howard, 89 N. Y. 169 203 Lerow v. Wilmarth, 9 Allen (Mass.) 386. 157 Leslie v. Baillie, 2 Younge & C. Ch. 91 119 Lester v. Foxcroft, Colles, 108, 1 White & T. Lead Cas. Eq. 1027, 1038, 1042 281 Le Texier v. Margrave of Anspach, 5 Ves. 322 321 Letterstedt v. Broers, 9 App. Cas. 371 211 Levy v. Helberg, 67 Miss. 526, 7 South. 431 86 v. Levy, 33 N. Y. 97, 107 172 v. Martin, 48 Wis. 198, 4 N. W. 35 255 Lewis' Appeal, 67 Pa. St. 153, 166 41 In re, 81 N. Y. 421 200 v. Building Ass'n, 70 Ala. 276 195 v. Cocks, 23 Wall. 466, 467, 470 10, 11 v. Darling, 16 How. 1 237 v. Hillman, 3 H. L. Cas. 607 148 v. Hinman, 56 Conn. 55, 13 Atl. 143 224 v. Palmer, 2S N. Y. 271 255 v. Smith, 9 N. Y. 502, 510 26 L. H. Harris Drug Co. v. Stucky, 46 Fed. 624 310 Libby v. Hopkins, 104 U. S. 303 250 Lichty v. McMartin, 11 Kan. 565 223 Lidderdale v. Robinson, 12 Wheat. 594 33 Lillard v. Ruckers, 9 Yerg. 64 92 Lincoln v. Little Rock Granite Co. (Ark.) 19 S. W. 1056 110 Lindley v. O'Reilly, 50 N. J. Law, 636, 640, 15 Atl. 379 31 Lindsay v. Gibbs, 22 Beav. 522 242 v. Glass, 119 Ind. 301, 21 N. E. 897 268 Lindsay Petroleum Co. v. Hurd, L. R. 5 P. C. 221 43 Lindsley v. Ferguson, 49 N. Y. 623 139 388 CASES CITED. Page Lipp v. Land Syndicate, 24 Neb. 692, 40 N. W. 129 217 Lipplncott v. Kid-way. 10 N. J. Eq. 104 162 Lissa v. Posey, 64 .Miss. 352, 1 South. 500 233 Llthauer v. Royle, 17 N. J. Eq. 40 222 Little v. Banks, 85 N. Y. 258, 260 108 v. Chadwick. 151 Mass. 109, 23 N. E. 1005 210 v. Willford, 31 Minn. 173, 17 N. W. 2S2 190 Littlehales v. Gascoine, 3 Brown, Ch. 74 205 LitUeton v. Fritz, 65 Iowa, 488, 22 N. W. 641 9 Livermore v. Maxwell (Iowa) 55 N. W. 37 102 I.i\ Ingston v. Livingston, 4 Johns. Ch. 294 110 v. Tompkins, 4 Johns. Ch. 415, 431 112 Llanover v. Hoinfray, 19 Ch. Div. 224 323 Llewellyn v. Badeley, 1 Hare, 527 321 Lloyd v. Banks, 3 Ch. App. 4S8 83 v. Galbraith, 32 Pa. St. 103 25S v. Loaring, Ves. 773 207 Lockett v. Robinson (Fla.) 12 South. 049 21 Lockwood Co. v. Lawrence, 77 Me. 297 18 Loftus v. Maloney, S9 Va. 576, 16 S. E. 749 144 Logan v. Dixon, 73 Wis. 533. 41 N. W. 713 253 London, C. & D. R. Co. v. Southeastern R. Co. (1892) 1 Ch. 143 27 London & S. W. R. Co. v. Blackmore, L. R. 4 H. L. 010, G25 130 Loney v. Courtnay, 24 Neb. 580, 39 N. W. 616 38 Long v. Fox, 100 111. 44 210 v. Miller, 93 N. C. 233 250 v. Wier, 2 Rich. Eq. 2S3 52 Long Dock Co. v. Mallery, 12 N. J. Eq. 93 227 Longrnate v. Ledger, 2 Giff. 157, 104 144 Loog v. Bean, 20 Ch. Div. 300 310 Loomis v. Loomis, 20 Vt. 19S 245 Lord v. Harte, US Mass. 271 159 v. Jeffkins, 35 Beav. 7, 9 142 v. Lord, 22 Conn. 595, 002 238 Lord Bernard's Case, Finch, Prec. Ch. 454, 2 Vera. 738 300 Lord Brook v. Lord Hertford, 2 P. Wins. 518 200 Lord Chichester v. Coventry, L. R. 2 H. L. 71, 90, 95 58, GG Lord Elphinstone v. Monkland Iron & Coal Co., 11 App. Cas. 332 109, 111 Lord Montford v. Lord Cadogan, 19 Yes. 030, 039, 640 210 Lord Portarlington v. Soulby (1834) 3 Mylne & K. 104 30 Lord Tenham v. Herbert, 2 Atk. 483 10, 18 Losey v. Simpson, 11 N. J. Eq. 240 91 Loud v. Winchester, 04 Mich. 23, 30 N. W. 890 202 Lough v. Michael. 37 W. Ya. 079, 17 S. E. 181, 470 105 CASES CITED. 331) Page Louisiana Nat. Bank v. Knapp, 61 Miss. 485 234 Louisville, N. A. & C. Ry. Co. v. Ohio Val. Improvement & Contract Co., 57 Fed. 42 18 Louisville & N. R. Co. v. Mississippi & T. R. Co., 92 Tenn. 681, 22 S. W. 920 269 Lovegrove, Ex parte, 3 Deac. & C. 763 207 Lovell v. Cragin, 136 U. S. 147, 10 Sup. Ct. 1024 219 v. Hicks, 2 Younge & C. Exch. 46 137 v. Wall, 31 Fla. 73, 12 South. 659 121 Lovering v. Worthington, 106 Mass. 86 181 Low v. Holmes, 17 N. J. Eq. 150 333 Lowell v. Doe, 44 Minn. 144, 46 N. W. 297 333 Lowndes v. Cornford, 18 Ves. 299 326 Lowry v. Smith, 97 Ind. 466 234 Lowson v. Copeland, 2 Brown, Ch. 156 201 Luddy's Trustee v. Peard, 33 Ch. Div. 500 119 Ludkins v. Aird, 6 Wall. 79 157 Ludlow v. Kidd, 3 Ohio, 544 95 Ludlum v. Rothschild, 41 Minn. 219, 43 N. W. 137 242 Luffberry's Appeal, 125 Pa. St. 513, 17 Atl. 447 76 Lumley v. Wagner, 1 De Gex, M. & G. 616, 619 290, 295, 296 Lumpkin v. Mills, 4 Ga. 343 255 Lunn v. Shermer, 93 N. C. 164 138 Lunquest v. Ten Eyck, 40 Iowa, 213 230 Lutheran Church v. Maschop, 10 N. J. Eq. 57 29S Lux v. Haggin, 69 Cal. 255, 266, 10 Pac. 674 48 Lydick v. Holland, 83 Mo. 703 2S2 Lyford v. Thurston, 10 N. H. 399 208 Lyman v. Babcock, 40 Wis. 503 109 v. Smith, 21 Wis. 674 219 Lynch v. Metropolitan El. R. Co., 129 N. Y. 274, 29 N. E. 315 13 Lyon v. Boiling, 9 Ala. 463 255 v. Home, L. R. 6 Eq. 655 153 v. Lyon, 65 N. Y. 339 174 v. Powell, 78 Ala. 351 2G2 v. Richmond, 2 Johns. Ch. 60 119 Lyons v. Miller, 6 Grat. 427, 43S 14 Lysaght v. Edwards, 2 Ch. Div. 499, 506, 507 236 v. Walker, 5 Bligh (N. S.) 1, 28 250 CASES CITED. M Page McArter v. Kelly, 5 Ohio, 139 298 Macartney v. Graham, 2 Sim. 285 110 Macbryde v. Weekes, 22 Beav. 533 279 McCabe v. Mathews, 40 Fed. 338 275 McCartee v. Orphan Asylum Soc, 9 Cow. (N. Y.) 437 171 McCarty v. Blevins, 5 Yerg. 195 172 McCaull v. Braham, 16 Fed. 37 290 McClellan v. McClellan, 05 Me. 504 173 McClendon v. Bradford, 42 La. 100, 7 South. 78, and 8 South. 250 148 McClure v. Otrich, 118 111. 320, 8 N. E. 784 200, 283 McClurg's Appeal, 58 Pa. St. 51 295 McCollister v. Willey, 52 Ind. 382 193 McComb, In re, 117 N. Y. 378, 22 N. E. 1070 G8 v. Spangler, 71 Cal. 423, 12 Pac. 347 222 McCone v. Courser, 04 N. H. 300, 15 Atl. 129 102 McCord v. Iker, 12 Ohio, 388 302 McCormick v. Garnett, 5 De Gex, M. & G. 278 119 v. Grogan, L. R. 4 H. L. 82, 97 29 v. Iloran, 81 N. Y. 80 305 v. Rossi, 70 Cal. 474, 15 Pac. 35 112 McCoy v. G randy, 3 Ohio St. 405, 400 230 v. Horwitz, 62 Md. 183 204 v. Nelson, 121 U. S. 487, 7 Sup. Ct. 1000 307 v. O'Donnell, 50 Md. 197 210 McCulla v. Beadleston, 17 R. I. 20, 20 Atl. 11 249 McCully v. McCully, 78 Va. 159 195 McCutchen v. Miller, 31 Miss. 00 94 McDouald v. Yungbluth, 40 Fed. 830 2S3 McDounel v. White, 11 H. L. Cas. 570 43 MacDonough v. Gaynor, 18 N. J. Eq. 249 325 McElhenuy's Appeal, 40 Pa. St. 347 207 McEJroy v. Maxwell, 101 Mo. 294, 14 S. W. 1 273 McElvey v. Lewis, 70 N. Y. 373 332 McElwain v. Willis, 9 Wend. (N. Y.) 548 150 McFadden v. Heney, 28 S. C. 317, 5 S. E. 812 75 v. Worthington, 45 111. 302. 100 McGean v. Railroad Co., 133 N. Y. 10, 30 N. E. 047 13, 15 McGehee v. Polk, 24 Ga. 400 325 McGowan v. McGowan, 14 Gray, 119 195 McGowin v. Remington, 12 Pa. St. 50 207 McGuire v. Ramsey, 9 Ark. 518, 527 190 McHarry v. Irvin. 85 Ky. 322, 3 S. W. 374, and 4 S. W. S00 127 CASES CITED. 391 Page Machemer's Estate, In re, 140 Pa. St. 544, 21 Atl. 441 08 McHugh v. Smiley, 17 Neb, 620, 20 N. W. 296 215 McKecknie v. Hoskins, 23 Me. 230 8(5 McKee v. Judd, 12 N. Y. 622 240 McKenna v. George, 2 Rich. Eq. (S. C.) 15 252 v. Kirkwood, 50 Mich. 544, 15 N. W. S98 245 Mackenzie, Ex parte, L. R. 7 Eq. 240 245 v. Johnston, 4 Madd. 373 249 McKim v. Aulbach, 130 Mass. 481 205, 206 McKinney v. Kuhn, 59 Miss. 186 326 McKinnon v. Vollmar, 75 Wis. 82, 43 N. W. 800 135 Mackintosh v. Ogilvie, 3 Swanst. 365 30 Macknet v. Macknet, 29 N. J. Eq. 54 57 McKnight v. Brady, 2 Mo. 110 233 v. Gordon, 13 Rich. Eq. 222 101 Mackreth v. Symrnons (1808) 15 Ves. 329, 1 White & T. Lead. Cas. Eq. 447 232, 235 McLanahan v. Reeside, 9 Watts, 50S 91 v. Universal Ins. Co., 1 Pet 170, 1S5 139 McLane v. Johnson, 43 Vt. 48 19S McLean v. Dow, 42 Wis. 610 49 McLeod v. Evans, 66 Wis. 409, 23 N. W. 173, 214 209 Macloon v. Smith, 49 Wis. 200, 5 N. W. 336 222 McMahan v. Kimball, 3 Blackf. (Ind.) 1 262 McMahon v. Russell, 17 Fla, 698 214 McMillan v. Bissell, 63 Mich. 66, 29 N. W. 737 216 v. Jewett, 85 Ala. 476, 5 South. 145 216 v. Mason, 71 Wis. 405, 37 N. W. 253 10 v. Richards, 9 Cal. 365 214 v. Rushing, 80 Ala. 402 44 McNeil v. Magee, 5 Mason, 244, Fed, Cas. No. 8,915 38, 269 v. Miller, 29 W. Va. 480, 2 S. E. 335 256 v. Tenth Nat. Bank, 46 N. Y. 325 49, 246 McQuddy v. Ware, 20 WalL 14-20 38 McQueen v. Chouteau, 20 Mo. 222 15 v. Farquhar, 11 Ves. 467 2S5 v. McQueen, 2 Jones, Eq. 16 54, 57 McQuerry v. Gilliland, 89 Ky. 434, 12 S. W. 1037 30, 51 McVey v. Brendel, 144 Pa. St. 235, 22 Atl. 912 40 v. Ritemous, 40 Ohio St. 107 156 McWhinne v. Martin, 77 Wis. 182, 46 N. W. 118 2S1 McWhirter v. Brainard, 5 Or. 426 21 McWilliams v. Webb, 32 Iowa, 577 244 Madden v. Barnes, 45 Wis. 135 235 CASES CITED. Page Maddison v. AJderson, 8 App. Cas. 407, 474, 485 2S0, 281 v. Chapman, 1 Johns. & H. 470 53 Madigan v. Mead, 31 Minn. 94, 10 N. W. 539 210 Magarlty v. Bhlpman, 82 Va. 7S4, 1 S. E. 109 251 Magniac v. Thompson, 15 How. 2S1 33 Mahoney v. Bostwick, 90 Cal. 53, 30 Pac. 1020 38 Major v. Bukley, 51 Mo. 227, 231 87 Malcolm v. Andrews, 08 111. 100 325 Maiden v. Menill, 2 Atk. 8 115 Malins v. Freeman, 2 Keen, 25 270 Mallalieu v. Wickham, 42 N. J. Eq. 297, 10 AU. 880 224 Malone v. Philadelphia, 147 Pa. St. 410, 23 Atl. 028 110 Maloney v. Finnegan, 38 Minn. 70, 35 N. W. 723 317 Maltby v. Austin, 65 Wis. 527, 27 N. W. 162 278 Mammoth Vein Consol. Coal Co.'s Appeal, 54 Pa. St. 1S3 298 Manby v. Bewieke, 3 Kay & J. 342 143 Mandervllle v. Welch, 5 Wheat. 277 243 Manhattan Iron Works Co. v. French, 12 Abb. N. C. 440 9 Mann, Appeal of (Pa. Sup.) 14 Atl. 270 237 v. Higgins, 83 Cal. GO, 23 Pac. 200 277 Mansell v. Mansell, 2 P. Wms. 081 208 Manser v. Back, Hare, 443 2S7 Mansfield v. Sherman, 81 Me. 305. 307, 17 Atl. 300 40 Maps v. Cooper, 39 N. J. Eq. 310 29 Marble Co. v. Ripley, 10 Wall. 339, 359 273 March v. Whitmore, 21 Wall. 178 43 Marden v. Babcock, 2 Mete. (Mass.) 104 158 Mare v. Sandford, 1 Giff. 288 155 Margraf v. Muir, 57 N. Y. 155 270 Marine Ins. Co. v. Hodgson, 7 Cranch, 332 29 Marsan v. French, 01 Tex. 173 304 Marsh v. Falker, 40 N. Y. 502 135 v. Lee, 1 White & T. Lead. Cas. Eq. 616, 2 Vent. 337 30 v. Marsh, 74 Ala. 418 129 v. Reed, 10 Ohio, 347 18 Marshall v. Stephens, 8 Humph. 159 148 Marshall's Estate, In re, 147 Pa. St. 77, 23 Atl. 391 69 Marston v. Williams, 45 Minn. 116, 47 N. W. 644 91 Martin v. Funk, 75 N. Y. 134, 137 177. 17S v. Graves, 5 Allen (Mass.) 661 316 v. Martin, 44 Kan. 295, 24 Pac. 418 15 v. Merritt, 57 lnd. 34 2S0 v. Morris, 02 Wis. 418, 22 N. W. 525 97 T. Neblett, 86 Tenn. 3S3, 7 S. W. 123 88 CASES CITED. 393 Page Martin v. Veeder, 20 Wis. 466 241 v. Walker, 12 Hun, 46 156 Martinez v. Moll, 46 Fed. 724 141 Martinson v. Clower, 21 Ch. Div. S57 223 Marvin v. Brooks, 94 N. Y. 71 249 Marx v. Schwartz, 14 Or. 177, 12 Pac. 253 250 Mason v. Callender, 2 Minn. 350 (Gil. 302) 109 v. Morley, 34 Beav. 475 208 v. Pierron, 09 Wis. 585, 34 N. W. 921 253 Master v. Miller, 4 Term R. 320, 340, 341 239 Mathews v. Mathews, 2 Ves. Sr. 635 61 v. Mobile Mut. Ins. Co., 75 Ala. 85, 90 33 Matthai v. Heather, 57 Md. 483 157 Matthews v. Crockett's Adm'r, 82 V a. 394 141 Mattison v. Marks, 31 Mich. 421 255 Maud v. Maud, 33 Ohio St. 147 277 Maul v. Rider, 59 Pa. St. 172 83 Maupin v. Emmons, 47 Mo. 304 81 Maxheld v. Burton, L. R. 17 Eq. 15 85 Maxwell v. Hyslop, L. R. 4 Eq. 407 54 v. Maxwell, 2 De Gex, M. & G. 705. 713 53, 54 Maxwell Land Grant Case, 121 U. S. 325, 7 Sup. Ct. 1015 129 May v. Thomson, 20 Ch. Div. 705 268 Maybee v. Moore, 90 Moore, 340, 2 S. W. 471 283 Mayer v. Association, 47 N. J. Eq. 519, 20 Atl. 492 311 v. McCreery, 119 N. Y. 434, 23 N. E. 1045 271 Mayham v. Coombs, 14 Ohio, 428 92 Mayhew v. Crickett, 2 Swanst. 185 255 Mayne v. Griswold, 3 Sandf. 463 12 Mayo v. Merrick, 127 Mass. 511 218 Mayor v. Whittington (Md.) 27 Atl. 984 81, 82 Mayor of City of Macon v. Dasher, 90 Ga. 195, 16 S. E. 75 105 Mayor, etc., of Baltimore v. Warren Manuf'g Co., 59 Md. 96, 110 305 Mayor, etc., of Colchester v. Lowten, 1 Ves. & B. 226 170 Mayor, etc., of New York v. Pilkington (1742) 2 Atk. 302; (1737) 1 Atk. 282 8, 16 Mays v. Rose, Freem. Ch. (Miss.) 703 331 Meacham v. Steele. 93 111. 135 224 Mead v. Bunn, 32 N. Y. 275 136 Meason v. Kaine, 63 Pa. St. 335 269 Mechanics' Foundry v. Ryall, 75 Cal. 601, 17 Pac. 703 301 Medford v. Levy, 31 W. Va. 649, 8 S. E. 302 40 Medworth v. Pope, 27 Beav. 71 180 Meech v. Allen, 17 N. Y. 301 258 CASES CITED. Page Meek v. Perry. 30 Miss. 190 150 Mehlhop v. l'ettibone, 54 Wis. 052, 11 N. W. 553 158 Meig's Appeal, 02 Pa. St. 28, 35 112 Meigs v. Lister, 23 N. J. Bq. 199 303 M. 1 1. -ii v. Moline Malleable Iron Works, 131 U. S. 352, 3G7, 9 Sup. Ct. 781 11 Mellon v. Heed, 123 Pa. St. 1, 14, 15 Atl. 906 G9, 72, 75 Mercantile Trust Co. v. Missouri, K. & T. R. Co., 36 Fed. 221 333 Merewether v. Shaw, 2 Cox, 124 136 Mevriam v. Goodlett, 36 Neb. 3S4, 54 N. W. 686 270 Merrifield v. Lombard, 13 Allen, 16 305 Merriman v. Russell, 2 Jones, Eg.. (N. C.) 470 264 Merry v. Abuey, 1 Cas. Cb. 3S. 103 Merryman v. Euler, 59 Md. 58S 149 Merryweather v. Nixan, 8 Term R. 186 253 Merwin v. Austin, 58 Conn. 22, 18 Atl. 1029 254 Methodist Episcopal Church v. Clark, 41 Mich. 730, 3 N. W. 207 190 Metier v. Metier, 18 N. J. Eq. 270 313 Meyer v. Johnston, 53 Ala. 237, 348 334 Michoud v. Girod, 4 How. 303 147 Micklethwait v. Micklethwait, 1 De Gex & J. 504, 524 300 Middleton v. Greenwood, 2 De Gex, J. & S. 142 208 Miles v. Dover Furnace Iron Co., 125 N. Y. 294, 26 N. E. 261 274 v. New Zealand Alford Estate Co., 32 Ch. Div. 266 121 Milkman v. Ordway, 106 Mass. 232, 253 14, 286 Millar v. Craig, 6 Beav. 433 127, 130 Miller v. Cameron, 45 N. J. Eq. 95, 15 Atl. 842 273 v. Proctor, 20 Ohio St. 442 202 v. Sherry, 2 Wall. 237 94 v. Warmington, 1 Jac. & W. 491 264 Millican v. Millican, 24 Tex. 446 153 Milligan's Appeal, 104 Pa. St. 503 225 Mills v. Evansville Seminary, 52 Wis. 669, 9 N. W. 925 112 v. Farmer, 1 Mer. 55, 96 188 v. Fowkes, 5 Bing. (N. C.) 455, 461 251 v. Harris, 104 N. C. 626, 10 S. E. 704 68, 69 v. Newberry, 112 111. 123 175 Millsaps v. Bond, 64 Miss. 453, 1 South. 506 257 Milmine v. Bass, 29 Fed. 632 257 Milner v. Milner, 1 Ves. Sr. 106 129 Milroy v. Lord, 4 De Gex, F. & J. 264, 274 177 Miltenberger v. Logansport Ry. Co., 106 U. S. 286, 1 Sup. Ct. 140 334 Milwaukee & M. R. Co. v. Soutler, 13 Wall. 517 256 Miner v. Beekman, 50 N. Y. 337 230 Minke v. Hopeman, 87 111. 450 10 CASES CITED. 395 Paga Minneapolis & St. L. Ry. Co. v. Cox, 76 Iowa, 306, 41 N. W. 24 277 Minnig's Appeal, 82 Pa. St 373 300 Minor v. De Vaughn, 72 Ga. 208 305 v. Rogers, 40 Conn. 512 178 Minot v. Baker, 147 Mass. 348, 17 N. E. 839 190 Mitchell v. Bunch, 2 Paige, 617 325 v. Dawson, 23 W. Va. 86 96 v. Hayne, 2 Sim. & S. 63 329 v. Henry, 15 Ch. Div. 191 309 v. Ladew, 30 Mo. 526 219 v. Reed, 61 N. Y. 123 199 v. Smith, 4 De Gex, J. & S. 422 178 v. Winslow, 2 Story, 630, Fed. Cas. No. 9,073 242 Moeckly v. Gorton, 78 Iowa, 202, 42 N. W. 648 313 Moelle v. Sherwood, 148 U. S. 21, 13 Sup. Ct. 426 i 98 Moggridge v. Thackwell, 7 Ves. 56, 69 189 Moncrief v. Ross, 50 N. Y. 431 68, 71 Monmouth Park Ass'n v. Wallis Iron Works, 55 N. J. Law, 132, 26 Atl. 140 110, 128 Monroe v. Fohl, 72 Cal. 568, 14 Pac. 514 252 Montague v. Dudman, 2 Ves. Sr. 396, 398 9 Moutefiore v. Guedalla, 1 De Gex, F. & J. 93 64 Montgomery & F. Ry. Co. v. McKenzie, 85 Ala. 549, 5 South. 322 14 Mooney v. Cooledge, 30 Ark. 640 301 Moore v. Baker, 34 Fed. 1 253 v.Bennett, 2 Ch. Cas. 246 87 v. Blake, 1 Ball & B. 62 275 v. Crawford, 130 U. S. 122, 128, 9 Sup. Ct. 447 27 v. Darby (Del. Ch.) 18 Atl. 768 262 v. Hinnant, 89 N. C. 455 157 v. Ingram, 91 N. C. 376 233 v. Jordan, 65 Miss. 229, 3 South. 737 192 v. Metropolitan Nat. Bank, 55 N. Y. 41 49 v. Moore, 67 Tex. 293, 3 S. W. 284; 4 Dana, 354 94, 190 V. Shurtleff, 128 111. 370, 21 N. E. 775 225 v. Topliff, 107 111. 241 254 Moores v. Townshend, 102 N. Y. 387, 393, 7 N. E. 401 317 Movehead v. Eades, 3 Bush, 121 136 Moreland v. Atchison, 19 Tex. 303 120 Moreton v. Harrison, 1 Bland, 491 232 Morgan, In re, 18 Ch. Div. 93 199 v. Bell, 3 Wash. 554, 576, 28 Pac. 925 15, 119, 121, 286 v. Dinges, 23 Neb. 271, 36 N. W. 544 135 O'.'G CASES CITED. Page Morgan v. Marsack, 2 Mer. 107 326 v. Michigan Air-Line E. Co., 57 Mich. 430, 25 N. W. 101, and 26 N. W. 80S 252 v. Minett, 6 Ch. Div. 638 152 v. Railroad Co., 96 U. S. 716, 720 47 Morgan's Adm'r v. Brast, 34 W. Va. 332, 12 S. E. 710 285 Moriarty v. Ashworth, 43 Minn. 1, 44 N. W. 531 299 Morice v. Bishop of Durham, 9 Ves. 399, 405 187 Morland v. Cook, L. R. 6 Eq. 252 85 Mormon Church v. U. S., 136 U. S. 1, 10 Sup. Ct. 792 190 Morphett v. Jones, 1 Swanst. 181 281 Morrell v. Wootten, 16 Beav. 197 244 Morrill v. Noyes, 56 Me. 463 330 v. St. Anthony Falls Water-Power Co., 26 Minn. 222, 2 N. W. S12. .. 305 Moi ris v. Nixon, 1 How. 118 24 v. Tuskaloosa Manuf g Co., 83 Ala. 565, 3 South. 689 295 Morrison v. Herrick, 130 111. 631, 642, 22 N. E. 537 281, 282 v. Kinstra, 55 Miss. 71 20S Morritt, In re. 18 Q. B. Div. 222 227 Mortimer v. Cnpper, 1 Browne, Ch. 158 127 Mortlock v. Buller, 10 Ves. 292, 306, 315 131, 286 Morville v. Fowle, 144 Mass. 109, 10 N. E. 706 188 Moses v. Mayor, 52 Ala. 198 9 Moss v. Adams, 4 Ired. Eq. (N. C.) 42, 51 251 v. Culver, 64 Pa. St. 414 2S2 Mott v. Clark, 9 Pa. St. 399 98 Mounce v. Byars, 16 Ga. 469 229 ML Holly, L. & M. Turnpike Co. v. Ferree, 17 N. J. Eq. 117 329 Mowday v. Moore, 133 Pa. St. 611, 19 Atl. 626 302 Mowry v. Wood, 12 Wis. 413 229 Muckleston v. Brown, 6 Ves. 68 180 Mucklow v. Fuller, Jac. 198 205 Mueller v. Engeln, 12 Bush, 441 S8 Mugler v. Kansas, 123 U. S. 623, 672, 8 Sup. Ct. 273 9 Muir v. Schenck, 3 Hill, 228 105 Mullen v. Wilson, 44 Pa. St. 413 157 Muller v. Dows, 94 U. S. 444 30 v. Rhuman, 62 Ga. 332 315 Mullhall v. Quinn, 1 Gray, 105 243 Mulry v. Norton, 100 N. Y. 424, 3 N. E. 581 300 Mundy v. Jolliffe, 5 Mylne & C. 167 281 v. Mundy, 2 Ves. Jr. 122 262 Munson v. Syracuse G. & C. Ry. Co., 103 N. Y. 58, 8 N. E. 355 147, 150 CASES CITED. 397 Page Murdoch v. Finney, 21 Mo. 13S 245 Murphy v. Nathans, 46 Pa. St. 50S 197 v. Rooney, 45 Cal. 7S 314 v. Smith, 86 Mo. 333 294 v. Webber, 61 Me. 47S 251 Murray v. Ballou, 1 Johns. Ch. 566 93, 94, 97 v. Drake, 46 Cal. 648 283 v. Gouverneur, 2 Johns. Cas. 438, 441 236 v. Lylburn, 2 Johns. Ch. 441 94 v. Murray, 90 Ky. 1, 13 S. W. 244 1(51 v. Parker, 19 Beav. 305, 308 129 Musprat v. Gordon, 1 Anst. 34 242 Musselman v. Kent, 33 Ind. 452 40 Mussey v. Sanborn, 15 Mass. 155 261 Mussleman v. Marquis, 1 Bush (Ky.) 463, 465 18, 300 Mutual Life Ins. Co. v. Bigler, 79 N. Y. 568 299 Myer v. Hart, 40 Mich. 517, 523 108 Myers v. Estell, 48 Miss. 401 330 Myres v. De Mier, 4 Daly, 343; 52 N. Y. 017 30 N Nachtrieb v. Harmony Settlement, 3 Wall. Jr. 66, Fed. Cas. No. 10,003. . . 153 Nairn v. Prowse, 6 Ves. 752 235 Naltner v. Dolan, 108 Ind. 500, 8 N. E. 289 208 Nash v. Hodgson, 6 De Gex, M. & G. 474 251, 252 v. Simpson, 78 Me. 142, 3 Atl. 53 261 National Bank v. Bigler, 83 N. Y. 51 250 National Bank of America v. Indiana Banking Co., 114 111. 483, 2 N. E. 401 243 National Docks R. Co. v. Central R. Co., 32 N. J. Eq. 755 29S National Ins. Co. v. Pingrey, 141 Mass. 411, 6 N. E. 93 329 National Park Bank of New York v. Goddard, 131 N. Y. 494, 30 N. E. 566 17 National Sav. Bank v. Creswell, 100 U. S. 630 225 Navassa Guano Co. v. Richardson, 26 S. C. 401, 2 S. E. 307 215 Naylor v. Winch, 1 Sim. & S. 564 121 Neal v. Gregory, 19 Fla. 356 102 Neall v. Hill, 16 Cal. 145 335 Nease v. Aetna Ins. Co., 32 W. Va. 2S3, 9 S. E. 233 11 Xeeson v. Clarkson, 4 Hare, 97 230 Neff's Appeal, 57 Pa. St. 91 201 Negley v. Lindsay, 67 Pa. St 217 139 398 CASES CITED. Page Neibert v. Baghurst (N. J. Ch.) 25 Atl. 474 281 Neill v. Shamburg, 158 Pa. St. 263, 27 Atl. 992 138 Neilson v. Williams, 42 N. J. Eq. 291, 11 Atl. 257 253 Nell v. Dayton, 43 Minn. 242, 45 N. W. 229 50 Nelson v. Carlson (Minn.) 55 N. W. 821 140 v. Stocker, 4 De Gex & J. 458, 464 40, 136 Nesbit v. Lockman, 34 N. Y. 167 152 Ness v. Davidson, 49 Minn. 469, 52 N. W. 46 70 Neuendorff v. World Mut. Life Ins. Co., 09 N. Y. 389 148 Nevins v. McKee, 61 Tex. 412 , 293 Nevius v. Dunlap, 33 N. Y. 676 129 New v. Nicoll, 73 N. Y. 127 207 v. Wright, 44 Miss. 202 312, 332 Newcomb v. Gibson, 127 Mass. 396 253 New England Trust Co. v. Eaton, 140 Mass. 532, 4 N. E. 09 201 Newhall v. Kastens, 70 111. 156 328 v. Pierce, 5 Pick. 450 86 Newland v. Attorney General, 3 Mer. 684 188 Newman, In re, 4 Ch. Div. 724; 30 Beav. 196 109, 149 v. Willetts, 52 111. 98 156 New Orleans Nat. Banking Ass'n v. Adams, 109 U. S. 211, 3 Sup. Ct 161 229 Newport Waterworks v. Sisson (R. I.) 28 Atl. 336 69 Newsom v. Thornton, 82 Ala. 402, 8 South. 261 237 Newton v. Bronson, 13 N. Y. 587 30, 202 v. Tolles (N. H.) 19 Atl. 1092 124 New Vienna Bank v. Johnson, 47 Ohio St. 306, 24 N. E. 503 229 New York Dry-Dock Co. v. American L. I. & T. Co., 11 Paige, 384 292 New York, J. G. Soc. v. Roosevelt, 7 Daly, 188 311 New York Mut. Life Ins. Co. v. Armstrong, 117 U. S. 591, 6 Sup. Ct 877. . 39 New York & H. R. Co. v. Haws, 56 N. Y. 175 117 New York & N. H. R. Co. v. Schuyler, 17 N. Y. 592 17 Nibert v. Baghurst, 47 N. J. Eq. 201, 20 Atl. 252 282 Nicholls v. Maynard, 3 Atk. 519 109 Nichols v. Allen, 130 Mass. 211 192 v. Easton, 91 U. S. 720 159 v. Eaton, 91 U, S. 716 180 v. McCarthy, 53 Conn. 299, 23 Atl. 93 147 v. Nichols, 28 VI. 228 261 Nickels v. Phillips, 18 Fla. 732 211 Nicodemus v. Nicodemus, 41 Md. 529 301 Nidever v. Ayers, 83 Cal. 39, 23 Pac. 192 98 Niggler v. Maurin, 34 Minn. 119, 24 N. W. 369 218 Nightingale v. Goulbourn, 2 Phil. Ch. 594 188 CASES CITED. 399 Page Niles, In re, 113 N. Y. 547, 21 N. E. 687 205 v. Davis, 60 Miss. 750 281 Noble v. Moses, 74 Ala. 604; 81 Ala. 530, 1 South. 217 150 v. Walker, 32 Ala. 456 37 Noonan v. Orton, 34 Wis. 259 240 Norcross v. James, 140 Mass. 188, 2 N. E. 946 103 Norcutt v. Dodd, 1 Craig & P. 100 159 Norfolk & N. B. Hosiery Co. v. Arnold, 49 N. J. Eq. 390, 23 Atl. 514 135 Norfolk & W. R. Co. v. Postal Tel. Cable Co., 88 Va. 932, 14 S. E. 6S9 321 Norris v. Hero, 22 La. Ann. 605 208 Norrish v. Marshall, 5 Mass. 475 244 North Baltimore Bldg. Ass'n v. Caldwell, 25 Md. 420 147 Northern Counties of Eng. F. Ins. Co. v. Whipp, 26 Ch. Div. 482 102 Northern Pac. R. Co. v. Amacker, 46 Fed. 233 17 North Nat. Bank v. Hamlin, 125 Mass. 506 255 Norton v. Coons, 6 N. Y. 33, 40 252 v. Mascall, 2 Vern. 24 270 Norway v. Rowe, 19 Ves. 159 333 Nottley v. Palmer, 2 Drew, 93 55 Noyes v. Marsh, 123 Mass. 286 267, 269 Noys v. Mordaunt, 1 White & T. Lead. Cas. Eq. 337 51 Nunn v. Fabian, 1 Ch. App. 35 282 O Oakes v. Turquand, L. R. 2 H. L. 345, 346 139 v. Turquand, L. R. 2 H. L. 325 140 Oakley v. Patterson Bank, 2 N. J. Eq. 173 335 O'Brien v. Anniston Pipe Works, 93 Atl. 582, 9 South. 415 110 Occleston v. Fullalove, 9 Ch. App. 147 180 O'Conner v. Ward, 60 Miss. 1037 159 O'Connor v. Gifford, 117 N. Y. 245, 22 N. E. 1036 201 v. Mechanics' Bank, 124 N. Y. 324, 26 N. E. 810 243 v. Spraight, 1 Schoales & L. 303 249 Odell, Ex parte, 10 Ch. Div. 76 24 Odlin v. Gove, 41 N. H. 465 48 Odom v. Riddick, 104 N. C. 515, 10 S. E. 609 98 Official Receiver v. Tailby, 18 Q. B. Div. 25 244 Ogden v. Thornton, 30 N. J. Eq. 569 235 Ogle v. Ogle, 41 Ohio St. 359 234 O'Hara, In re, 95 N. Y. 403, 413, 414 199, 200 Oil Creek R. Co. v. Atlantic & G. W. R. R., 57 Pa. St. 65 112 O'Keeffe v. Calthorpe, 1 Atk. 17 211 4U0 CASE8 CITED. Page Oldakcr v. Hunt, 6 De Gex, M. & G. 376 306 Oliver v. Piatt, 3 How. 333 210 v. Sanborn, GO Mich. 340. 37 N. W. 527 102 Olliffe v. Wells, 130 Mass. 221 192 Olmstead v. Abbott, Gl Vt 281, 18 Atl. 315 277 Oregonian By. Co. v. Oregon Ry. & Nav. Co., 37 Fed. 733 2G8 O'Reilly v. Alderson, 8 Hare, 101 211 v. Bard, 105 Pa. St. 509 253 Ormiston v. Olcott. 84 N. Y. 339, 343, 34G 204, 205 O'Rourke v. O'Connor, 39 Cal. 442, 446 86 Oit v. Newton, 2 Cox, 274 201 Orrell v. Orrell, 6 Ch. App. 302 54 Orrick v. Durham, 79 Mo. 174 235 Osborn v. Heyer, 2 Paige, 342 335 Osborne v. Cabell, 77 Va. 462 220 v. Endicott, 6 Cal. 149 196 v. Kimball, 41 Kan. 187, 21 Pac. 163 283 v. Wisconsin Cent. K. Co., 43 Fed. 826 17 Otis v. Gregory, 111 Ind. 504, 509, 13 N. E. 39 37 v. Payne, 86 Tenn. 663, 8 S. W. 848 102 Ottcnheimer v. Cook, 10 Heisk. (Tenn.) 309 119 Ould v. Washington Hospital, 95 U. S. 303 190 Overmire v. Haworth, 48 Minn. 372, 51 N. W. 121 11 Overton v. Banister, 3 Hare, 503 40 Owen v. Ford, 49 Mo. 43G 298 v. Homan, 3 Macn. & G. 37S, 412 331 Owens v. Owens, 100 N. C. 240, 6 S. E. 794 39 Ownes v. Ownes, 23 N. J. Eq. 60 180 Oxford's Case, Earl of, 1 Ch. R. 1, 2 White & T. Lead. Cas. Eq. 1291 29 Packard v. Packard, 16 Pick. 191, 194 261 Packer v. Rochester & S. It. Co., 17 N. Y. 2S3 215 Padgett v. Lawrence, 10 Paige, 180 96 Padwick v. Hurst, 18 Beav. 575 249 v. Stanley, 9 Hare, 627 249 Page v. Bent, 2 Mete. (Mass.) 371, 374 134 v. Higgins, 150 Mass. 27, 22 N. E. 03 125 v. Holman, 82 Ky. 573 208 v. Horne, 11 Beav. 227 153 v. Martin, 40 N. J. Eq. 5S5, 5S9, 20 Atl. 46 266 v. Waring, 76 N. Y. 463 94 CASES CITED. 401 Page Paige t. Banks, 13 Wall. (508 308 Pain v. Coombs, 1 De Gex & J. 34, 40 281 Paine v. Jones, 75 N. Y. 593 314 Palmer v. Ford, 70 111. 309 117 v. Gardiner, 77 111. 143 292 v. Hayes, 93 Ind. 189 292 v. Williams, 24 Mich. 328 200 Palmeter v. Carey, 03 Wis. 420, 21 N. W. 793, and 23 N. W. 5SG 219 Papillon v. Voice, 2 P. Wms. 471 184 Paris v. Lewis, 85 I1L 597 98 Parish v. Murphree, 13 How. 92 157 Park Bros. & Co. v. Blodgett & Clapp Co., 04 Conn. 2S, 29 Atl. 133 128 Parker v. Coop, 60 Tex. Ill 195 v. Dee, 2 Ch. Cas. 200 13 v. Foy, 43 Miss. 200, 200 83 v. Hill, 8 Mete. (Mass.) 447 91 v. Johnson, 37 N. J. Eq. 300 207 v. Nickerson, 112 Mass. 195 150 v. Nightingale, 6 Allen, 341, 344 103 v. Parker, 82 N. C. 105 333 v. Sanborn, 7 Gray (Mass.) 191 255 v. Sears, 1 Fish. Pat. Cas. 93, Fed. Cas. No. 10,74S 307 Parkhurst v. Hosford, 21 Fed. 827, 835 83 v. Kinsman, N. J. Eq. GOO 307 v. Lowten, 2 Swanst. 194, 210 321 Parkin v. Thorold, 16 Beav. 59 278 Parmelee v. Cameron, 41 N. Y. 392 141 Parmeter v. Bourne (Wash.) 35 Pac. 5S0 21 Parnell v. Hingston, 3 Smale & G. 337, 344 193 Parsons v. Briddock, 2 Vern. G0S 255 Partridge v. Shepard, 71 Cal. 470, 12 Pac. 480 ISO Patch v. Ward, 3 Ch. App. 203, 207 135 Patchin v. Pierce, 12 Wend. 01, 03 227 Patman v. Harland, 17 Ch. Div. 355 87 Patten v. Merchants' & F. M. F. Ins. Co., 40 N. H. 375. 89 v. Moore, 32 N. H. 3S2 95 Patterson v. Bloomer, 35 Conn. 57 129 v. Brown, 32 N. Y. 81 40 v. Caldwell, 124 Pa. St. 455, 17 Atl. IS 242 v. Mills, 69 Iowa, 755, 28 N. W. 53 173 Pattison v. Skillman, 34 N. J. Eq. 344 267 Patton v. Campbell, 70 111. 72 116 Paul v. Connersville & N. J. R. Co., 51 Ind. 527 84 Pawson v. Brown, 13 Ch. Div. 202 193 eq.jur.— 26 402 CASES CITED. Pago Payne v. Bullard, 23 Miss. 88, 90 13 v. Kansas & A. V. R. Co., 46 Fed. .",4(5 290 v. Meller, 6 Ves. 349 26 v. Nowell, 41 La. Ann. 852, 6 South. 630 234 v. Wilson. 74 N. Y. 348 229 Peabody v. Tarbell, 2 Cnsh. (Mass.) 232 196 Peachy v. Duke of Somerset, 1 Strange, 447, 2 White & T. Lead. Cas. Eq. 1082, 2014 24, 107, 111 Peacock v. Evans, 16 Ves. 512 142 Pea k v. Ellicott, 30 Kan. 156, 1 Pac. 499 209 Peake v. Ilighfield, 1 Russ. 559 316 Pearce v. Buell, 22 Or. 29, 29 Pac. 78 136 v. Morris, 5 Ch. App. 229 224 v. Ware. 94 Mich. 321, 53 N. W. 1100 40 v. Wilson. Ill Pa. St. 14, 2 Atl. 99 216 Pearl v. Deacon, 24 Beav. 186 255 Pearson v. Allen, 151 Mass. 79, 23 N. E. 731 302 v. Cardon. 2 Russ. & M. 006, 609-612 328 v. Lane, 17 Ves. 101 78 Pease v. Eagan, 131 N. Y. 202. 30 N. E. 102 254 v. Landauer, 63 Wis. 20, 22 N. W. 847 243 Peck v. Culberson, 104 N. C. 426, 10 S. E. 511 233 v. Elder, 3 Sandf. 126 303 v. Ellis, 2 Johns. Ch. 131 253 v. .Tenness. 7 How. 012 228 Peckliam v. Newton, 15 R. I. 321, 4 Atl. 758 190, 204 Pedesclaux v. Legare, 32 La. Ann. 380 232 Peek v. Peek. 77 Cal. 106, 19 Pac. 227 95, 100, 283 Peers v. Lambert, 7 Beav. 546 285 Peiffer v. Bates, 45 N. J. Eq. 311, 19 Atl. 612 35 Peirce Oil Co. v. City of Little Rock, 39 Ark. 412 9 Peirsoll v. Elliott, 6 Pet 95 315 Pell v. McElroy, 36 Cal. 268 80 v. Mercer, 14 R. I. 412 190 Pemberton v. Oakes, 4 Russ. 154, 108 251 Pembroke v. Thorpe, 3 Swanst. 437 282 Penhallow v. Kimball, 01 N. H. 590 57 Penn v. Guggenheimer, 76 Va. 839 51-53, 56, 58 v. Ingles, 82 Va. 69 15 v. Lord Baltimore, 1 Ves. Sr. 444 30 Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518 302 Pennsylvania Co. for Insurance on Lives v. American Trust Co., 2 U. S. App. 006, 5 C. C. A. 53, and 55 Fed. 131 333 Pennsylvania R. Co. v. Com. (Pa. Sup.) 7 Atl. 368 25 CASES CITED. 403 Page Penny v. Watts, 2 De Gex & S. 501 96 Pennybacker v. Laidley, 33 W. Va. 624, 11 S. E. 39 136, 138, 14] Penrose v. Leeds, 46 N. J. Eq. 294, 296, 19 Atl. 134 275 Penzel v. Brookmire, 51 Ark. 105, 10 S. W. 15 219 People v. Canal Board of New York, 55 N. Y. 390, 394 313 v. Chicago Gas Trust Co., 130 111. 268, 22 N. E. 798 25 v. E. Remington & Sons, 121 N. Y. 333, 24 N. E. 793 258 v. Faulkner, 107 N. Y. 477, 4S8, 14 N. E. 415 202 v. Houghtaling, 7 Cal. 34S, 351 12 v. New York Co., 5 Cow. (N. Y.) 331 252 v. New York & S. I. P. Co., 68 N. Y. 71 302 v. North River Sugar-Refining Co., 121 N. Y. 582, 24 N. E. S34 25 v. Open Board, 92 N. Y. 98 277 v. Tioga Common Pleas, 19 Wend. 73. 240 v. Vanderbilt, 28 N. Y. 396 302 People's Bank v. Bogart, 81 N. Y. 101 138 People's Gas Co. v. Tyner, 131 Ind. 277, 31 N. E. 59 10 People's Sav. Bank v. Bates, 120 U. S. 556, 565, 7 Sup. Ct. 679 96 Percival v. Harger, 40 Iowa, 286 136 Perkins v. Ede, 16 Beav. 193 285 v. Hall, 105 N. Y. 539, 12 N. E. 48 256 v. Partridge, 30 N. J. Eq. 82 135 Perrott v. Shearer, 17 Mich. 48 255 Perry v. Bozeman, 67 Ga. 643 250 v. Hale, 44 N. H. 303, 367 257 v. Pratt, 31 Conn. 433 264 Peter v. Beverly, 10 Pet. 532 26, 205 Peters v. Bain, 133 U. S. 670, 10 Sup. Ct. 354 51 v. Cartier, 80 Mich. 124, 45 N. W. 73 97 v. Florence, 38 Pa. St. 194 119 v. Mortimer, 4 Edw. Ch. 279 42 v. Tunell, 43 Minn. 473, 45 N. W. 867 233, 234 Petrain v. Kiernan, 23 Or. 455, 32 Pac. 158 85, 86 Peugh v. Davis, 96 U. S. 332, 336 216, 217 Peynado v. Peynado. 82 Ky. 5 190 Pfiffner v. S. & St. P. R. Co., 23 Minn. 343 282 Pfister v. Wade, 56 Cal. 43 329 Phelan v. Brady, 119 N. Y. 587, 23 N. E. 1109 85, 86 Phelps, Ex parte, 9 Mod. 357 211 Philbrick v. Shaw, 61 N. H. 356 254 Philbrook v. Delano, 29 Me. 410, 415 194, 233 Phillips v. Edwards, 33 Beav. 440 282 v. Ferguson, 85 Va. 509, 8 S. E. 241 77 v. Mayor, etc., 61 Ga. 386 9 404 CASES CITED. Page Phillips v. Moses, 65 Me. 70 251 v. Phillips, 4 De Gex, P. & J. 208, 215; 112 N. Y. 197, 19 N. E. 411; 9 Hare, 471 30, 175, 249 v. Pullen, 45 N. J. Eq. 5, 830, 16 Atl. 9, and 18 Atl. S49 141, 293 Philpott v. Jones, 2 Adol. & E. 41, 44 251 Phipps v. Kelly, 12 Or. 213, 6 Pac. 707 12 Phoenix Ins. Co. v. Ryland, 69 Md. 437, 10 Atl. 109 14 Phyfe v. Wardell, 5 Paige, 268 199 Pickard v. Sears, 6 Adol. & E. 469 40 Pickering v. Day, 2 Del. Ch. 333, 3 Houst. (Del.) 474 250, 251 v. Ilfracombe Ry. Co., L. R. 3 C. P. 235 244 v. Pickering, 2 Beav. 50 121 Pickersgill v. Rodger, 5 Ch. Div. 163, 166, 170 52, 53 Pickett v. Leonard, 104 N. C. 320, 10 S. E. 400 05 Pierce v. Equitable Assur. Soc, 145 Mass. 60, 12 N. E. 858 249 v. Pierce, 55 Mich. 629, 22 N. W. 81 333 v. Plumb, 74 111. 326, 330, 331 270 Pilling v. Armitage, 12 Ves. 78, 84 230 Pirn v. Downing, 11 Serg. & R. 71 205 Pinchin v. London & B. Ry. Co., 5 De Gex, M. & G. 860 290 Pindall v. Trevor, 30 Ark. 249 102 Pinkum v. City of Eau Claire, 81 Wis. 301, 51 N. W. 559 14 Piper v. Hoard, 107 N. Y. 73, 13 N. E. 026 22 v. Moulton, 72 Me. 155 188 Pitcher v. Hennessey, 48 N. Y. 415 120 Pittsburg v. Danforth, 56 N. H. 278 47 Place v. Hayward, 117 N. Y. 487, 497, 23 N. E. 25 149 Planters' Bank v. Hornberger, 4 Cold. 531 149 Planters' & Merchants' Bank v. Walker, 7 Ala. 94<; 155 Piatt v. Maples, 19 La. Ann. 459 272 v. Woodruff, 61 N. Y. 37S 29, 291 Platto v. Deuster, 22 Wis. 482 294 Pleasanton's Appeal, 99 Pa. St. 302 202 Plumer v. Lord, 9 Allen, 455 49 Pocock v. Attorney General. 3 Ch. Div. 342 188 Poindexter v. Burwell, 82 Va. 507 30 Pollard v. Clayton, 1 Kay & J. 402 275 Polley v. Seymour, 2 Younge & C. 708 68, 70 Poole v. Middleton, 29 Beav. 646 267 Pooley v. Ray, 1 P. Wins. 355 116 Pope v. Cole, 55 N. Y. 124 32 v. Farnsworth, 146 Mass. 339, 16 N. E. 2G2 210 Popp v. Swanke, 08 Wis. 304, 31 N. W. 910 281 Poppers v. Meager (111. Sup.) 35 N. E. 805 110 CASES CITED. 405 Page Popplein v. Foley, 61 Md. 381 266 Porter v. Cole, 4 Me. 20 92 v. Frenchman's Bay & Mt D. Land & Water Co., 84 Me. 195, 24 Atl. 814 10 v. Spencer, 2 Jobns. Ch. 109, 171 323 v. Williams, 9 N. Y. 142 335 Portland v. Topham, 11 H. L. Cas. 32 161 Port of Mobile v. Louisville & N. R. Co., 84 Ala. 115, 4 South. 100 301 Post v. Toledo, etc., R. Co., 144 Mass. 341, 11 N. E. 540 320 v. West Shore R. Co., 123 N. Y. 581, 26 N. E. 7 268 Potter v. Hollister, 45 N. J. Eq. 50S, 18 Atl. 204 30 v. McDowell, 31 Mo. 62 158 v. Sanders, 6 Hare, 1 103 v. Whitney, 1 Lowell (U. S.) 87, Fed. Cas. No. 11,341 307 Powell v. Adams, 98 Mo. 598, 12 S. W. 295 136 v. Attorney General, 3 Mer. 48 188 v. Bentley & G. Furniture Co., 34 W. Va. 801, 12 S. E. 1085 303 v. Campbell, 20 Nev. 232, 20 Pac. 156 93 v. Cheshire, 70 Ga. 357 301 v. Earl of Powis (1826) 1 Younge & J. 158 16 v. Evans, 5 Ves. 839 201 v. Glover, 3 P. Wms. 251 150 v. Howell, 63 N. C. 284 156 v. Jones, 72 Ala. 392 229 v. Powell, 80 Ala. 11 147 v. Smith, L. R. 14 Eq. 85, 90 119, 120 Powell D. S. C. Co. v. Taff Vale Ry. Co., 9 Ch. App. 331 269 Powys v. Mansfield, 3 Mylne & C. 359 63 Poyer v. Village of Desplaines, 123 111. Ill, 13 N. E. 819 9 Pratt v. California Min. Co., 24 Fed. S69 43 v. Radford, 52 Wis. 114, 8 N. W. 606 255 v. Thornton, 28 Me. 355 38 Pray v. Clark, 113 Mass. 283 277 Preston v. Mann, 25 Conn. 118, 129 48 v. Preston, 95 U. S. 200 277 v. Tubbin, 1 Vern. 286 89 Preteca v. Maxwell Land Grant Co., 4 U. S. App. 326, 1 C. C. A. 007, 50 Fed. 674 17 Prewit v. Wilson, 103 U. S. 22 158 Price v. Corp. of Penzance, 4 Hare, 506, 509 268 v. Junkin, 4 Watts, 85 105 v. McDonald, 1 Md. 414 92 v. Thompson, 84 Ky. 219, 1 S. W. 408 147 406 CASES CITED. Page Price's Ex'r v. Price's Ex'rs, 23 N. J. Eq. 428 333 Prince Albert v. Strange, 1 Macn. & G. 42 308 Prince Manuf* g Co. v. Prince's Metallic Paint Co., 135 N. Y. 24, 31 N. E. 990 40 Pringle v. Dunn, 37 Wis. 449, 464 87, 89, 90 Printing & Numerical R. Co. v. Sampson, L. R. 19 Eq. 402 242 Prosser v. Rice, 28 Beav. 08, 74 84 Protestant Episcopal E. Soc. v. Churchman, 80 Va. 718 187, 191 Prout v. Roberts, 32 Ala. 427 138 Providence Bank v. Wilkinson, 4 R. I. 507 326 Prudential Assur. Co. v. Knott, 10 Ch. App. 142 310 Puckette v. Judge, 39 La. Ann. 901, 2 South. 801 290 Pugh v. Wheeler, 2 Dew & B. 55 305 Pulteney v. Shelton, 5 Ves. 260 299 Purple v. Hudson River R. Co., 4 Duer, 74 240 Pusey v. Desbouvrie, 3 P. Wms. 315, 321 56, 120 v. Pusey, 1 Vern. 273, 1 White & T. Lead. Cas. Eq. 1109 266 Putnam v. Ritchie, 6 Paige (N. Y.) 390, 404 230 Pye, Ex parte, 18 Ves. 140, 150, 2 White & T. Lead. Cas. Eq. 368. .62, 64, 177 Pym v. Blackburn, 3 Ves. 34, 38 115 v. Bowreman, 3 Swanst. 241 224 v. Lockyer, 5 Milne & C. 29 64 Q Quarrell v. Beckford, 1 Madd. 269, 282 207 Quartz Hill Con. G. Min. Co. v. Beall, 20 Ch. Div. 501 310 Quin v. Moore, 15 N. Y. 432 240 R Rabb v. Flenniken, 29 S. C. 278, 7 S. E. 597 103 Ragsdale v. Mays, 65 Tex. 255 277 Railroad Co. v. Dubois, 12 Wall. 47 50 v. Soutter, 13 Wall. 517, 524 119 Ralston v. Turpin. 129 U. S. 675, 9 Sup. Ct. 420 152 Ramsay v. Gheen, 99 N. C. 215, 6 S. E. 75 274 Ramsdell v. Edgarton, 8 Mete. (Mass.) 227 154 Ramsey v. Hanlon, 33 Fed. 425 70 Ramsey's Appeal, 2 Watts (Pa.) 228 257 Randolph's Ex'r v. Quidnick Co., 135 U. S. 457, 10 Sup. Ct. 655 275 Ranelaugh v. Hayes, 1 Vern. 189 254 CASES CITED. 407 Page Rankin v. Coar, 46 N. J. Eq. 56G, 22 Atl. 177 8 .; v. Maxwell, 2 A. K. Marsh. 488 14 Rannells v. Gerner, 80 Mo. 474 143 Ransom v. Brown, 63 Tex. 188 236 Rapier v. Gulf City Paper Co., 77 Ala. 126, 134 218 Raritan Water-Power Co. v. Veghte, 21 N. J. Eq. 463 85 Rau v. Von Zedlitz, 132 Mass. 164 145 Rawlins v. Wickham, 3 De Gex & J. 304 135 Ray v. Powers, 134 Mass. 22 253 v. Simmons, 11 R. I. 266 178 Rea v. Longstreet, 54 Ala. 291 317 Read v. Huff, 40 N. J. Eq. 229 198 v. Read, 1 Ch. Cas. 115 325 v. Simons' Adm'r, 2 Desaus. Eq. 552 229 v. Williams, 125 N. Y. 560, 571, 26 N. E. 730 76 Reade v. Livingston, 3 Johns. Ch. (N. Y.) 481 157 Recknagle v. Schmaltz, 72 Iowa, 63, 33 N. W. 365 282 Redfern v. Bryning, 6 Ch. Div. 133 128 Redfield v. Gleason, 61 Vt. 220, 17 Atl. 1075 287 v. Parks, 132 U. S. 239, 247, 248, 10 Sup. Ct. 83 27 Redgrave v. Hurd, 20 Ch. Div. 1 136 Redin v. Branhan, 43 Minn. 283, 45 N. W. 445 246 Reed v. Boardman, 20 Pick. 441 250 v. Breeden, 61 Pa. St. 460 279 v. Marble, 10 Paige, 409 201 v. Norris, 2 Mylne & C. 361, 375 254 v. Reed, 12 Pa. St. 117 282 Rees v. City of Watertown, 19 Wall. 109, 121 2, 22 Reese's Appeal, 122 Pa. St. 392, 15 Atl. S07 267 Reeve v. Whitmore, 4 De Gex, J. & S. 1, 16-18 243 Reeves v. Coming, 51 Fed. 774, 780 134 v. Hayes, 95 Ind. 521 218 v. Morgan, 48 N. J. Eq. 420, 21 Atl. 1040 12 Regan Vapor-Engine Co. v. Pacific Gas-Engine Co., 1 C. C. A. 109, 49 Fed. 68 242 Reichert v. Geers, 98 Ind. 73 303 Reid's Adm'r v. Blackstone, 14 Grat. 363 174 Renals v. Cowlishaw, 9 Ch. Div. 130, 11 Ch. Div. 866 295 Rendell v. Scott, 70 Cal. 514, 11 Pac. 779 135 Rensselaer & S. R. Co. v. Miller, 47 Vt. 146 207 Renton v. Monnier, 77 Cal. 449, 19 Pac. 820 244 Revalk v. Kraemer, 8 Cal. 66 294 Revell v. Hussey, 2 Ball & B. 287 26 Reynell v. Sprye, 1 De Gex, M. & G. 660, 679 42 408 CASES CITED. Page Reynolds, Ex parte, 5 Ves. 707 211 v. Crldge, L31 Pa. St. 189, 18 Atl. 1010 207 v. Horine, 13 B. Mon. 234 294 y. Kingsbury, 15 Iowa, 238 90 v. Palmer, 21 Fed. 433 135 v. Robinson, 82 N. Y. 103 59 v. Sumner, 12G 111. 58, 18 N. E. 334 43 Rhead v. Hounson, 4G Mich. 243, 9 N. W. 207 100 Rhodes v. Bate. 1 Ch. App. 232 152 v. Dunbar, 57 Pa. St. 274 303 v. Outcalt, 48 Mo. 370 82 Rice v. Hale, 5 Cush. 241 325 v. Rice, 2 Drew. 73 3G v. Sanders. ir>2 Mass. 108. 24 N. E. 1079 219 v. Southgate, 16 Gray, 142 254 v. Stone, 1 Allen (Mass.) 560 240 Rich v. Bray, 37 Fed. 273 261 Richards v. Columbia, 55 N. H. 96 251 v. Delbridge, L. R. 18 Eq. 11, 13 176, 178 v. Dower, 61 Cal. 62, 28 Pac. 113 301 v. Humphreys, 15 Pick. 133, 136 62, 64 v. Lumber Co., 74 Mich. 57, 41 N. W. 860 233 v. Seal, 2 Del. Cb. 266 205 Richardson v. Greese, 3 Atk. 65 60 v. Jenkins, 1 Drew. 477 210 v. Levi, 67 Tex. 359, 3 S. W. 444 98 v. Walton, 49 Fed. 888 140 v. Woehler, 26 Mich. 90 110 Richart v. Richart, 30 Iowa, 465 57 Richmond Manuf'g Co. v. Atlantic De Laine Co., 10 R. I. 100 305 Rico v. Gaultier, 3 Atk. 500 325 Riddlesburg Coal & Iron Co., Appeal of, 114 Pa. St. 58, 6 Atl. 381 243 Rider v. Johnson, 20 Pa. St. 190 245 v. Kidder, 10 Ves. 360 195 Ridgway v. Newstead, 2 Giff. 492 43 v. Ridgway, 69 Md. 242, 14 AtL 659 275 Riegel v. American Life Ins. Co., 153 Pa. St. 134, 25 Atl. 1070 124 Rigden v. Vallier, 3 Atk. 735 195 Riggs v. Palmer, 115 N. Y. 506, 22 N. E. 188 39 Ringgold v. Bryan, 3 Md. Ch. 488 232 Riopelle v. Doellmer, 20 Mich. 105 320 Ripley v. Waterworth, 7 Ves. 435 77 Ripon v. Hobart, 2 Mylne & K. 169, 174, 176 298 Rippe v. Stogdill, 61 Wis. 38, 20 N. W. 645 249 CASES CITED. 409 Page Rlst v. Hartner, 44 La. 430, 10 South. 759 150 Ritter v. Phillips, 53 N. Y. 586 220 Roane v. Baker, 120 111. 308, 11 N. E. 246 101 Robbins v. Davis, 1 Blatchf. 238, Fed. Cas. No. 11.8S0 322 v. Potter, 98 Mass. 532 48 Robert v. Corning, 89 N. Y. 225, 239 71 Roberts v. Bourne, 23 Me. 165 91 v. Richards, 84 Me. 1, 24 Atl. 425 91 v. Stevens, 84 Me. 325, 24 Atl. 873 181 Roberts' Heirs v. Lovejoy, 60 Tex. 253, 257 286 Robertson v. Deatherage, 82 111. 511 252 Robinson v. Appleton, 124 111. 276, 15 N. E. 761 236 v. Cathcart, 2 Cranch, C. C. 590, Fed. Cas. No. 11,946 36 v. Mclver, 63 N. C. 645 237 v. Mauldin, 11 Ala. 977 172 v. Pett, 3 P. Wins. 249, 2 White & T. Lead. Cas. Eq. 512 146, 206 v. Robinson, 1 De Gex, M. & G. 247 210 Rochester v. Levering, 104 Ind. 562, 4 N. E. 203 148 Rock Island & P. Ry. Co. v. Dimick, 144 111. 628, 32 N. E. 291 84 Rockwell v. Bank, 31 Neb. 128, 47 N. W. 641 220 v. Hobby, 2 Sandf. Ch. 9 229 Roddy v. Brick, 42 N. J. Eq. 218, 6 Atl. S06 218 Roe v. Roe, 21 N. J. Eq. 253 51 Roemer v. Conlon, 45 N. J. Eq. 234, 19 Atl. 664 128 Rogers v. Challis, 27 Beav. 175 270 v. Hussey, 36 Iowa, 664 85 v. Ingham, 3 Ch. Div. 351, 356, 357 119 v. Jones, 3 Ch. Div. 688; 8 N. H. 264 51, 85 v. Saunders, 16 Me. 92 129, 273 v. Soutten, 2 Keen, 598 64 v. Taintor, 97 Mass. 291 309 v. Torbut, 58 Ala. 523 37 v. Wolfe, 104 Mo. 1, 14 S. W. 805 281 v. Yarnell, 51 Ark. 198, 10 S. W. 622 249 Rogers Locomotive & M. Works v. Erie R. Co., 20 N. J. Eq. 379 288 Rohan v. Hanson, 11 Cush. (Mass.) 44 251 Rohn v. Harris, 130 111. 525, 22 N. E. 587 263 Rolfe v. Gregory, 4 De Gex, J. & S. 576, 579 199, 208 v. Peterson, 2 Brown, Pari. Cas. (Tomlins' Ed.) 436 110 Roll v. Rea, 50 N. J. Law, 264, 12 Atl. 905 87 Rolland v. Hart. 6 Ch. App. 678 92 Romaine v. Hendrickson, 27 N. J. Eq. 162 146 Rooke's Case, 5 Coke, 99b 34 Rooney v. Michael, 84 Ala. 585, 4 South. 421 12 410 CASES CITED. Page Root v. Railway Co., 105 U. S. ISO 307 Ropes v. Upton, 125 Mass. 258 205 Roquet v. Eldridge, 118 Ind. 147, 20 N. B. 733 63 Rorer Iron Co. v. Trout, 83 Va. 307, 2 S. E. 713 135 Roseman v. Miller, S4 111. 207 95 Rosewell v. Bennett, 3 Atk. 78 63 Ross v. Brnsie. 70 Cal. 465, 11 Pac. 760 216 v. Conway, 02 Cal. 632, 28 Pac. 785 151, 153 v. Crane, 74 Iowa, 375, 37 N. W. 050 250 v. Parks. 03 Ala. 153, 8 South. 368 273 v. Purse, 17 Colo. 24, 28 Pac. 473 277 v. Union Pac. Ry. Co., Woolw. 26, 40, Fed. Cas. No. 12,080 207, 2GS Rossiter v. Miller, 3 App. Cas. 1124 272 Roszell v. Roszell, 100 Ind. 354, 10 N. E. 114 128 Rothholz v. Schwartz, 4G N. J. Eq. 477, 10 Atl. 312 270 Rothschild v. Kohn (Ky.) 10 S. W. 780 04 Rottenburgh v. Fowl (N. J. Ch.) 26 Atl. 338 145 Rouse v. Flowers, 75 Ala. 513 302 Rousillon v. Rousillon, 14 Ch. Div. 351 206 Row v. Dawson, 1 Ves. Sr. 331, 332, 2 White & T. Lead. Oas. Eq. 731 . . 172, 243 Rowley v. Bigelow, 12 Pick. 307 105 v. Towsley, 53 Mich. 320, 10 N. W. 20 210, 256 Roxborough v. Messick, 6 Ohio St. 448 05 Rozell v. Redding, 50 Mich. 331, 26 N. W. 408 40 Ruff's Appeal, 117 Pa. St. 310 276 Runyan v. Mersereau, 11 Johns. 534 218 Runyon v. Farmers' & M. Bank, 4 N. J. Eq. 480 330 Rushton v. Thompson, 35 Fed. 635 272 Rushworth v. Moore, 30 N. H. 188 255 Russ v. Mebius, 16 Cal. 350 102 Russel v. Russel, 1 Brown, Ch. 260, 1 White & T. Lead. Cas. Eq. 031 220 Russell v. Allen, 107 U. S. 167, 2 Sup. Ct. 327 188 v. Clark, 7 Cranch, 60 14 v. Dickeschied, 24 W. Va. 61 320 v. Failor, 1 Ohio St. 327 32 v. Kirkbride, 62 Tex. 450 04 v. Presbyterian Church, 65 Pa. St. 130 v. Southard, 12 How. 130 24 Russell's Patent, 2 De Gex & J. 130 172 Rust v. Conrad, 47 Mich. 440, 11 N. W. 205 273 Ruth v. Oberbrunner, 40 Wis. 238 100 Rutherford v. Stewart, 70 Mo. 216 242 Rutland Marble Co. v. Ripley, 10 Wall. 330 312 CASES CITED. 411 Page Ryall v. Ryall, 1 Atk. 59 196 Ryan v. Ashton, 42 Iowa, 365 149 v. Doyle, 31 Iowa, 53 20S Rynearson v. Turner, 52 Mich. 7, 17 N. W. 219 253 S Sable v. Maloney, 48 Wis. 331, 4 N. W. 479 315 Safford v. Rantoul, 12 Pick. 233 173 Sage v. Memphis & L. R. R. Co., 125 U. S. 361, 8 Sup. Ct. S87 331 Sailly v. Elmore, 2 Paige, 497, 499 12 Sadnter v. Ferguson, 7 C. B. 730 110 St Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642 303 St. Louis Nat. Stock Yards v. Wiggins Ferry Co., 102 111. 514 46 Sale v. Moore, 1 Sim. 534 172 Salisbury v. Clarke, 61 Vt. 453, 17 Atl. 135 192 Salt v. Pym, 28 Ch. Div. 155 128 Saltmarsh v. Beene, 4 Port (Ala.) 283 274 Sample v. Barnes, 14 How. 70 40 Sanders v. Cassady, 86 Ala. 246, 248, 5 South. 503 218 v. Logan, 2 Fish. Pat Cas. 167, Fed. Cas. No. 12,295 307 v. Metcalf, 1 Tenn. Ch. 419 21, 291 Sanderson v. Price, 21 N. J. Law, 637, 646 216 Sandford v. Handy, 23 Wend. 260 135 v. McLean, 3 Paige, 117 256 v. Weeden, 2 Heisk. 71 196 Sanfley v. Jackson, 16 Tex. 579 152 Sangster v. Love, 11 Iowa, 580 218 Sappington v. Oeschli, 49 Mo. 244 100 Sargeant v. Rowsey, 89 Mo. 617, 1 S. W. 823 225 Satterfield v. Malone, 35 Fed. 445 83 v. Rowan, 83 Ga. 187, 9 S. B. 677 305 Saull v. Browne, 10 Ch. App. 64 9 Saunders v. Smith, 3 Mylne & C. 714, 728 298 v. Wiel [1892] 2 Q. B. 321 321 Saur v. Ferris, 145 111. 115, 34 N. E. 52 15 Savage v. Burnham, 17 N. Y. 561, 569 71 v. Savage, 19 Or. 112, 23 Pac. 890 261 Savannah Nat. Bank v. Haskins, 101 Mass. 370 116 Sawyer, In re, 124 U. S. 210, 8 Sup. Ct. 482 9 v. Almand, 89 Ga. 314, 15 S. E. 315 105 Sayre v. Hughes, L. R. 5 Eq. 376 197 Scanlan v. Cobb, 85 111. 296 143 Scarborough v. Watkins, 9 B. Mon. 540 153 412 CASES CITED. Page Schafer v. Reilly, 50 N. Y. 61 240 Schaps v. Lehner, 54 Minn. 208, 55 N. W. 911 143 Schettler v. Smith, -41 N. Y. 329 181 Schleissmann v. Kallenberg, 72 Iowa, 338 255 Schlessinger v. Mallard, 70 Cal. 326, 11 Pac. 728 193 Schloss v. Hewlett, 81 Ala. 266, 1 South. 263 241 Schneider v. Williams, 44 N. J. Eq. 391, 14 Atl. 812 309 Schofield v. Heap, 27 Beav. 93 64 School Dist No. 1 v. Weston, 31 Mich. 85 326, 328 Schouler, In re, 134 Mass. 426 188 Schreiber v. Carey, 48 Wis. 208, 4 N. W. 124 333 Schriber v. Le Clair, 66 Wis. 579, 29 N. W. 570, 889 217 Schroeder v. Gurney, 73 N. Y. 430 100 v. Loeber, 75 Md. 195, 23 AtL 579, and 24 Atl. 226 12 v. Walsh. 120 111. 403, 11 N. E. 70 158 Schuey v. Schaeffer, 130 Pa, St. 18, 18 Atl. 544 2S1 Schuster v. Schuster, 93 Mo. 438, 6 S. W. 259 197 Schuyler v. Curtis, 64 Hun, 594, 19 N. Y. Supp. 264 311 Scotland Co. v. Hill, 132 U. S. 107, 10 Sup. Ot. 26 9S Scott v. Austin, 36 Minn. 460, 32 N. W. 89, 864 37 v. Freeland, 7 Smedes & M. 409 147 v. Gallagher, 14 Serg. & R. 333, 334 86 v. Magloughlin, 133 111. 33, 24 N. E. 1030 246 v. Porcher, 3 Mer. 652 244 v. Rayment, L. R. 7 Eq. 112 269 v. Rogers, 77 Iowa, 483, 42 N. W. 377 93 v. Sierra Lumber Co., 67 Cal. 71, 7 Pac. 131 147 Scranton Electric Light & Heat Co. v. Scranton Illuminating Heat & Power Co., 122 Pa, St. 154, 15 Atl. 446 40 Scudamore v. Scudamore, Finch, Prec. 543 68, 72 Sears v. Starbird, 78 Cal. 225, 20 Pac. 547 253 Sebastian v. Johnson, 72 111. 282 203 Second Religious Soc. v. Harriman, 125 Mass. 321 188 Secor v. Toledo, P. & W. R. Co., 7 Biss. 513, Fed. Cas. No. 12,605 330 Seda v. Huble, 75 Iowa, 429, 39 N. W. 685 190 Seeley v. Fisher, 11 Sim. 581, 583 310 v. Jago, 1 P. Wms. 389 79 Seiberling v. Tipton (Mo. Sup.) 21 S. W. 4 87 Seixas v. Gonsoulin, 40 La. Ann. 351, 4 South. 453 255 Selby v. Stanley, 4 Minn. 65 (Gil. 34) 233 Seligmann v. Le Boutillier, L. R. 1 C. P. 6S1 269 Sellers v. Parvis & Williams Co., 30 Fed. 164 302 Sellors v. Local Board of Health, 14 Q. B. Div. 928 303 Seltz v. Unna, 6 Wall. 327 253 CASES CITED. 413 Pag? Seton v. Lafone, 19 Q. B. Div. 68, 70 47 v. Slade, 7 Ves. 2G5, 273 212, 278 Sewell v. Price, 32 Ala. 97 . 217 Seymour v. Ricketts, 21 Neb. 240, 31 N. W. 7S1 261 v. Wilson, 19 N. Y. 417, 420 158 Shackelford v. Bankhead, 72 Ala. 476 13 Shackelton v. Sebree, 86 111. 616 145 Shaftoe v. Shaftoe, 7 Ves. 171 325 Shakeshaft, Ex parte, 3 Brown, Ch. 197 210 Shakespeare v. Alba, 76 Ala. 351 283 Shand v. Du Buisson, L. R. 18 Bq. 283 243 Shankland's Appeal, 47 Pa. St. 113 180 Shannon v. Bruner, 36 Fed. 147 241 Shardlow v. Cotterell, 20 Ch. Div. 90 277 Sharon v. Terry, 36 Fed. 337 • 316 Sharp v. Taylor, 2 Phil. Ch. S01 41 Shartel's Appeal, 64 Pa. St. 25 210 Shattuck v. Bascom, 105 N. Y. 40, 12 N. E. 283 215 Shaw v. Beers, 84 Ind. 528 260 v. Coster, 8 Paige (N. Y.) 339 329 v. Fisher, 2 De Gex & S. 11 267 v. Foster, L. R. 5 H. L. 321 236 v. Shaw, 86 Mo. 594 196 v. Spencer, 100 Mass. 382, 3S8 192 Shea v. Shea, 121 Pa. St. 302, 15 Atl. 629 151 Sheerer v. Cuddy, 85 Cal. 270, 24 Pac. 713 85 Sheffield Waterworks v. Yeomans, 2 Ch. App. 8 17 Sheldon v. Rockwell, 9 Wis. 166, 179 18 Shellenberger v. Ranson (Neb.) 59 N. W. 935 39 Shelley's Case, L. R. 4 H. L. 545, 553 183 Shepherd v. Burkhalter, 13 Ga. 443 90 Sherman v. Lewis, 44 Minn. 107, 46 N. W. 31S 53 Sherwood v. Walker, 66 Mich. 56S, 33 N. W. 919 125 Shields v. Lozear, 34 N. J. Law, 496 216 Shiell v. McNitt, 9 Paige, 101, 106 109 Shillaber v. Robinson, 97 U. S. 68 222 Shipley v. Fox, 69 Md. 572, 579, 16 Atl. 275 46 Shoemaker v. South Bend Spark Arrester Co., 135 Ind. 471, 35 N. E. 380... 311 Shryock v. Waggoner, 28 Pa. St. 431 171 Shultz v. Johnson, 5 B. Mon. 497 240 Shurtleff v. Rile, 140 Mass. 213, 4 N. E. 407 202 Shuttleworth v. Greaves, 4 Mylne & C. 35 53 Sibley v. Baker, 23 Mich. 312 257 Sichel v. Mosenthal, 30 Beav. 371 270 414 CASES CITED. Pago Sickles v. Gloucester Manuf g Co., 1 Fish. Pat Cas. 222, Fed. Cas. No. 12,- 841 307 Sidmouth v. Sidmouth, 2 Beav. 447, 450 198 Silva v. Garcia, 05 Cal. 591, 4 Pac. 028 300 v. Rankin, SO Ga. 79, 4 S. E. 750 301 Sim v. Field, 00 Mo. Ill 223 Siminonds, Ex parte, 10 Q. B. Div. 308 119 Simmons, In re, 55 Ark. 485, 18 S. W. 933 73 Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 12 Sup. Ct. 239 84, 87 Simons v. Vulcan Oil & Min. Co., 01 Pa. St. 202 151 Simpson v. Howden, 3 Mylne & C. 97 310 v. Mundee, 3 Kan. 172 233 Sims v. Albea, 72 Ga. 751 257 v. Sims, 10 N. J. Eq. 158, 102, 103 59 Singer Manuf g Co. v. Domestic S. M. Co., 49 Ga. 70 311 Singer Sewing Mach. Co. v. Union Buttonhole Co., 1 Holmes, 253, Fed. Cas. No. 12,904 295 Sitton v. Shipp, 05 Mo. 297 281 Skellenger's Ex'rs v. Skellenger's Ex'r, 32 N. J. Eq. 059 193 Skerrett v. Presbyterian Society, 41 Onio St. 000 90 Skiles' Appeal, 110 Pa. St. 248, 20 Atl. 722 230 Skinners' Co. v. Irish Soc, 1 Mylne & C. 104 331 Skip v. Harwood, 3 Atk. 504 331 Skrine v. Jackson, 73 Ga. 377 21 Slemmer's Appeal, 58 Pa. St. 155 307 Slingsby v. Boulton, 1 Ves. & B. 334 329 Sloan v. Campbell, 71 Mo. 387 234 Sloane v. Cadogan, Sugd. Vend. Append 179 Sloman v. Walter, 1 Brown, Ch. 418, 2 White & T. Lead. Cas. Eq. 1094, 2022 24, 107 Smail v. Sanders, 118 Ind. 105, 20 N. E. 290 310 Small v. Minneapolis Electric Matrix Co., 45 Minn. 204, 207, 47 N. W. 797 313 Smethurst v. Hastings, 30 Ch. Div. 490, 49S 202 Smith v. Boston, C. & M. R. Co., 30 N. H. 487 209 v. Bricker, 80 Iowa, 285, 53 N. W. 250 130 v. Burgess, 133 Mass. 513 87 v. Cansler, 83 Ky. 307 274 v. Chadwick, 9 App. Cas. 187 137 v. City of Oconomowoc, 49 Wis. 094, N. W. 329 < 300 v. Claxton, 4 Madd. 402 77 v. Clay, 3 Brown, Ch. 040 37, 275 v. Crosby, 47 Wis. 100, 2 N. W. 104 217 v. Dunn, 27 Ala. 310 203 v. East India Co., 1 Phil. Ch. 50 321 CASES CITED. 415 Pago Smith v. Fellows, 131 Mass. 20 237 v. Hughes, L. R. 6 Q. B. 597 125 v. Kanimerer, 152 Pa. St. 98, 25 Atl. 165 40 v. Kay, 7 H. L. Cas. 750, 755, 772 136, 152 v. Kelley, 27 Me. 237 218 v. Lawrence, 15 Mich. 499 279 v. Lehman, Durr & Co., 85 Ala. 394, 5 South. 204 97 v. Leveaux, 2 De Gex, J. & S. 1 249 v. Loewenstein, 50 Ohio St. 346, 34 N. E. 159, 161 71 v. Loyd, 11 Leigh, 512 251 v. Matthews, 3 De Gex, F. & J. 139 173 v. Reid, 134 N. Y. 568, 31 N. E. 1082 85 v. Richards, 13 Pet. 26, 36 135 v. Rumsey, 33 Mich. 183 255 v. Sherman, 4 Cush. 408 240 v. Smith, 4 Rand. (Va.) 102; 10 Paige, 477; 2 Younge & C. Exch. 361 263, 333 v. Vodges, 92 U. S. 183 157 v. Walser, 49 Mo. 250 208 Smyley v. Reese, 53 Ala. 89 153 Smyth v. Burns, 25 Miss. 422 204 v. Griffin, 13 Sim. 245 316 v. New Orleans Canal & Banking Co., 141 U. S. 656, 12 Sup. Ct. 113. . 10 Snell v. Dwight, 120 Mass. 9 41 v. Insurance Co., 98 U. S. 85, 90, 92 120 Snodgrass v. Andrews, 30 Miss. 472 156 v. Butler, 54 Miss. 45 329 Snook v. Snetzer, 25 Ohio St. 516 30 Snowdon v. Dales, 6 Sim. 524 180 Snyder v. Cabell, 29 W. Va. 48, 1 S. E. 241 304 v. Partridge, 138 111. 173, 29 N. E. 851 89 v. Robinson, 35 Ind. 311 219 Soberanes v. Soberanes, 97 Cal. 140, 31 Pac. 910 152, 153 Sohier v. Burr, 127 Mass. 221 18S v. Eldredge, 103 Mass. 345, 351 231 v. Trinity Church, 109 Mass. 1 174 Solinger v. Earle, 82 N. Y. 395 155 Soltau v. De Held, 2 Sim. (N. S.) 133, 141, 142 301, 302, 304 Somers v. Overhulser, 67 Cal. 237, 7 Pac. 645 195 Somes v. Brewer, 2 Pick. 183 98 Sorrell v. Carpenter, 2 P. Wms. 482 93 Soule v. Shotwell, 52 Miss. 236 96 Southard v. Benner, 72 N. Y. 426 156 Southern California R. Co. v. Rutherford, 62 Fed. 796 22 41G CASES CITED. Page Southern Development Co. v. Silva, 125 U. S. 247, 8 Sup. Ot. 881 134, 137 South & N. A. R. Co. v. Highland Ave. & B. R. Co., 98 Ala. 400, 13 South. 6S2 269 Soutter v. Miller, 15 Fla. G25 186 Soward v. Johnston, 65 Mo. 102 47 Sowles v. Hall, 62 Vt. 247, 20 Atl. 810 279 Spain v. Hamilton, 1 Wall. 604, 624 245 Sparhawk v. Cloon, 125 Mass. 263 180 v. Railway Co., 54 Pa. St. 401 ' 8 Sparrow v. Oxford, W. & W. R. Co., 9 Hare, 436, 441 298 v. Paris, 8 Jur. (N. S.) 391 110 Spaulding v. Oakes, 42 Vt. 343 253 v. Warner, 59 Vt. 646, 11 Atl. 1S6 263 Speck v. Riggin, 40 Mo. 405 81 Speight v. Gaunt, 9 App. Cas. 1 203 Spence v. Mobile & M. R. Co., 79 Ala. 576 246 Spencer & Newbold's Appeal, SO Pa. St. 317 147 Spielmann v. Kliest, 36 N. J. Eq. 202 90 Spink v. Francis, 19 Fed. 670, 20 Fed. 567 9 Spong v. Spong, 3 Bligh (N. S.) 84 237 Sprague v. Rooney, 104 Mo. 349, 16 S. W. 505 272 v. West, 127 Mass. 471 328 v. Woods, 4 Watts & S. 192 194 Springfield & M. R. Co. v. Stewart, 51 Ark. 2S5, 10 S. W. 767 232, 235 Spurgiu v. Adamson, 62 Iowa, 661, 18 N. W. 293 224 Stagg v. Jackson, 1 N. Y. 206 69 Stairley v. Rabe, McMul. Eq. (S. C.) 22 333 Standard Paint Co. v. Reynolds, 43 Fed. 304 307 Standard Paper Co. v. Guenther, 67 Wis. 106, 30 N. W. 29S 48 Stanley v. Colt, 5 Wall. 119 174 Staples v. White, Handley & Co., 88 Tenn. 30, 12 S. W. 339 91 Starkey v. Starkey (Ind. Sup.) 36 N. E. 287 281 Starry v. Korab, 65 Iowa, 267, 21 N. W. 600 47 State v. Bank of Maryland, 6 Gill & J. 205 170 v. Goodnight, 70 Tex. 686, 11 S. W. 119 302 v. Hall, 70 Miss. 678, 13 South. 39 14, 111 v. McBride, 76 Ala. 51 Ill v. Paup, 13 Ark. 129 119 v. Piatt, 4 Har. (Del.) 154 206 v. Police Jury, 41 La. Ann. 850, South. 777 21 v. Saunders, 66 N. H. 39, 25 Atl. 588 9 v. Schweickardt, 109 Mo. 496, 19 S. W. 47 8 v. Simmons Hardware Co., 109 Mo. 118, 18 S. W. 1125 321 v. Standard Oil Co., 49 Ohio St. 137, 30 N. E. 279 25 CASES CITED. 417 Page State v. Ueland, 30 Minn. 277, 5 N. W. 245 57 v. Unrig, 14 Mo. App. 413 8 v. Wertzell, 62 Wis. 1S8, 22 N. W. 150 47 State Bank v. Frame, 112 Mo. 502, 20 S. W. 620 96 Stead v. Newdigate, 2 Mer. 521 72 Stebbins v. Palmer, 1 Pick. 71 240 Steed v. Preece, L. R. 18 Eq. 192 73 Steedman v. Weeks, 2 Strob. Eq. 145 262 Steel v. Dixon, 17 Ch. Div. 825 253 v. St Louis Smelting & Refining Co., 106 U. S. 447, 1 Sup. Gt. 389. . . 48 Steele v. U. S., 113 U. S. 128, 5 Sup. Ct. 396 44 Steere v. Steere, 5 Johns. Ch. 1 173 Stein v. Goddard, 1 McAll. (U. S.) 82, Fed. Cas. No. 13,353 306 Steinau v. Gas Co., 48 Ohio St 324, 27 N. E. 545, 547 295 Stephens v. Cady, 14 How. 530 307 Sternberger v. McGovern, 56 N. Y. 12, 20 286 Sternburg v. Bowman, 103 Mass. 325 154 Stevens v. Church, 41 Conn. 369 219 v. Dennett 51 N. H. 333, 334 47 v. Flower, 46 N. J. Eq. 340, 19 Atl. 777 237 v. Hulin, 53 Mich. 93, IS N. W. 569 8G v. Ludlum, 46 Minn. 160, 48 N. W. 771 48 Stevenson v. Polk, 71 Iowa, 278, 32 N. W. 340 278 Stewart v. Fellows, 128 111. 480, 20 N. E. 657 208 v. Houston, & T. C. Ry. Co., 62 Tex. 246 240 v. Keith, 12 Pa. St. 238 250 v. Smith, 36 Minn. 82, 30 N. W. 430 101 v. Stewart, 6 Clarke & F. 911, 966 119 v. Wood, 63 Mo. 252 236 Stiles v. Stiles, 14 Mich. 72 153 Still v. Ruby, 35 Pa. St 373 171 Stimson v. Helps, 9 Colo. 35, 10 Pac. 290 135 Stinchfield v. Milliken, 71 Me. 567 24, 217 Stirling v. Forrester, 3 Bligh, 590 252 Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45 129 Stockton v. Central R. Co., 50 N. J. Eq. 52, 76, 24 Atl. 964, 965 23, 25 Stoddard v. Hart, 23 N. Y. 556 119 Stone v. Denny, 4 Mete. (Mass.) 151 135 v. Hackett, 12 Gray, 227 177 v. Hale, 17 Ala. 557 120 v. Reed, 152 Mass. 179, 25 N. E. 49 329 v. Roscommon Lumber Co., 59 Mich. 24, 26 N. W. 216 305 v. Tyree, 30 W. Va. 687, 5 S. E. 878 94 Stoner v. Zimmerman, 21 Pa. St 394 70 eq.jur. — 27 418 CASES CITED. Page Storer v. G. W. K. Co., 2 Younge & C. Ch. 48 268 Storrs v. Barker, 6 Johns. Ch. 160 119 v. Pensacola & A. R. Co., 29 Fla. 617, 11 South. 223 16 v. Wallace, 61 Mich. 437, 28 N. W. 662 103 Story v. New York El. R. Co., 90 N. Y. 122 306 v. Norwich & W. R. Co., 24 Conn. 94 269 Stott v. Milne, 25 Ch. Div. 710 207 Stover v. Mitchell, 45 111. 213 127 Stowe v. Bowen, 99 Mass. 194 206 Stowell v. Robinson, 3 Bing. N. C. 928 278 Strathmore v. Bowes, 1 Ves. Jr. 22, 1 White & T. Lead. Cas. Eq. 605 160 Stratton v. Physio-Medical CoUege, 149 Mass. 508, 21 N. E. 874 190 Straus v. Barnett, 140 Pa. St. Ill, 21 Atl. 253 304 Strauss's Appeal, 49 Pa. St. 353 233 Streatfield v. Streattield, cas. t. Talb. 176, 1 White & T. Lead. Cas. Eq. 333 51, 56, 57, 184 Street v. Rigby, 6 Ves. 815 269 Strickland v. Barber, 76 Mich. 310, 43 N. W. 449 287 v. Kirk, 51 Miss. 795, 797 86 v. Turner, 7 Exch. 208 124 Stringfellow v. Ivie, 73 Ala. 209, 214 234 Strong v. Williams, 12 Mass. 390, 391 60 Stuart v. Board, S3 111. 341 9 v. Sears, 119 Mass. 143 130 Stubbins v. Mitchell. S2 Ky. 535 253 Sturch v. Young, 5 Beav. 557 333 Sturge v. Starr, 2 Mylne & K. 195 35 Sturgis v. Champneys, 5 Mylne & C. 105 37 Stuyvesant v. Hall, 2 Barb. Ch. 151 91 v. Hone, 1 Sandf. Ch. 419 9] v. Mayor, 11 Paige (N. Y.) 414 268 Suess v. Noble, 31 Fed. 855 9 Suessenguth v. Bingenheiiner, 40 Wis. 370 135 Suisse v. Lord Lowther, 2 Hare, 424, 434, 435 62, 65 Sullivan v. Bruhling, 66 Wis. 472, 29 N. W. 211 185 v. Latimer, 38 S. C. 158, 17 S. E. 701 61 v. Royer, 72 Cal. 248, 13 Pac. 655 303 v. Sullivan, 66 N. Y. 37 261 Surcome v. Pinniger, 3 De Gex, M. & G. 571 283 Sutherland v. Brush, 7 Johns. Ch. 17 205 Sutton v. Morgan, 158 Pa. St. 204, 27 Atl. 894 136 Swain v. Knapp, 32 Minn. 431, 21 N. W. 414 263 v. Wall, 1 Ch. R. 80 253 Swaine v. Perine, 5 Johns. Ch. 482 161, 262 CASES CITED. 419 Page Swan v. Burlington, C. R. & N. Ry. Co., 72 Iowa, 650, 34 N. W. 457 84 Swayze v. Carter, 41 N. J. Eq. 231, 233, 3 Atl. 706 47 Sweatt v. Faville, 23 Iowa, 321 21 Sweetapple v. Bindon, 2 Vera. 536 72, 184 Sweetzer v. Jones, 35 Vt. 317 210 Switzer v. Noffsinger, 82 Va. 518, 521 241 Sydnor v. Roberts, 13 Tex. 508 105 Sykes v. Beadon, 11 Ch. Div. 170, 193, 194 41 v. Betts, 87 Ala. 537, 6 South. 428 236 Sylvester v. Born, 132 Pa. St. 467, 19 Atl. 337 27S v. Jerome (Colo. Sup.) 34 Pac. 760 41 Sym v. Howe, L. R. 6 Eq. 55 145 Symes v. Hughes, L. R. 9 Eq. 475 193 Syracuse Sav. Bank v. Holden, 105 N. Y. 415, 11 N. E. 950 185 T Taber v. Hamlin, 97 Mass. 489 220 Tabor v. Foy, 56 Iowa, 539, 9 N. W. 897 246 Tadman v. D'Epineuil, 20 Ch. Div. 758 242 Talbot v. Duke of Shrewsbury, 2 White & T. Lead. Cas. Eq. 379 60 Taliaferro v. Gay, 78 Ky. 496 214 Talieferro v. Burnett, 37 Ark. 511 235 Tallman v. Wood, 26 Wend. 9 184 Tamplin v. James, 15 Ch. Div. 215 126 Tarkington v. Purvis, 128 Ind. 182, 25 N. E. 879 97 Tate v. Williamson, 2 Ch. App. 55, 60, 61 146, 151 Tayloe v. Merchants' Fire Ins. Co., 9 How. 390 270 v. Sandiford, 7 Wheat. 13 250 Taylor v. Caldwell, 3 Best & S. 826 115 v. Cartwright, L. R. 14 Eq. 167, 176 64 v. Duesterberg, 109 Ind. 165, 170, 9 N. E. 907 160 v. Eckersley, 2 Ch. Div. 302, 5 Ch. Div. 740 270 v. Foster, 22 Ohio St. 255 231 v. Huck, 65 Tex. 238 229 v. Nashville & C. R. Co., 86 Tenn. 228, 6 S. W. 393 294 v. Page, 6 Allen, 86 246 v. Philadelphia & R. R. Co., 7 Fed. 385 330 v. Sheppard, 1 Younge & C. Ex. 271 293 v. Stibbert, 2 Ves. Jr. 437 85-87 v. Taylor, 8 How. 1S3 152 Tazewell v. Smith's Adm'r, 1 Rand. (Va.) 313, 320 26, 70 Teal v. Walker, 111 U. S. 242, 4 Sup. Ct. 420 216 420 CASES CITED. Pag» Teed v. Valentine, 65 N. T. 474 157 Tempest, In re, 1 Ch. App. 487 211 Tenant v. Elliott, 1 Bos. & P. 3 41 Tennessee Manuf'g Co. v. James, 91 Tenn. 154, IS S. W. 202 110 Terry v. Terry, Finch, Prec. 273 204 Terry and White's Contract, In re, 32 Ch. Div. 21 34 T( -wksbury v. Spruance, 75 111. 187 148 Texas & P. Ry. Co. v. Kuteman, 54 Fed. 547 29 v. Marshall, 130 U. S. 393, 10 Sup. Ct. 840 11 Thatcher v. Humble, 67 Ind. 444 .• 301 Thayer v. Daniels, 113 Mass. 129 245 v. Turner, 8 Mete. (Mass.) 550 139 Thellusson v. Woodford, 4 Ves. 227; 11 Ves. 112; 13 Ves. 221 53, 181 Theyken v. Howe Mach. Co., 109 Pa. St 95 24G Third Ave. R. Co. v. Mayor, etc., 54 N. Y. 159 18 Third Nat Bank v. Skillings Lumber Co., 132 Mass. 410 32S v. Stillwater Gas Co., 30 Minn. 75, 30 N. W. 440 209 Thomas v. Bartow, 48 N. Y. 193, 198 125 v. Beals (Mass.) 27 N. E. 1004 140 v. Brownville, Ft. K. & P. R. Co., 109 U. S. 522, 3 Sup. Ct. 315 150 v. Burnett, 12S 111. 37, 21 N. E. 352 80 v. Duering, 1 Keen, 729 274 v. Evans, 105 N. Y. 001, 12 N. E. 571 230 v. Gyles, 2 Vera. 233 261 v. Sheppard, 2 McCord, Eq. 36 144 v. Yonkpff, 6 Gill. & J. 372 27 Thomman's Estate, In re (Pa. Sup.) 29 Atl. 84 70 Thompson v. Allen Co., 115 U. S. 550, 6 Sup. Ct. 140 23 v. Cartwright, 33 Beav. 178 SS v. Corrie, 57 Md. 197 235 v. Dulles, 5 Rich. Eq. 370 279 v. Marshall, 21 Or. 171, 27 Pac. 957 215 v. St Nicholas Nat. Bank, 113 N. Y. 325, 21 N. E. 57 251 v. Stanhope, Amb. 737 308 v. Thompson, 2 Strobh. 48 52 Thomson v. Thomson, 7 Ves. 470; 115 Mo. 56, 21 S. W. 1085 41, 129 v. Weems, 9 App. Cas. 071 139 Thorley's Cattle Food Co. v. Massam, 14 Ch. Div. 703 310 Thorn v. Newsom, 04 Tex. 101 97 v. Sweeney, 12 Nev. 251 301 Thorndike v. Hunt, 3 De Gex & J. 503 35 Thrasher v. Doig, 18 Fla. 809 12 Threlfall v. Lunt 7 Sim. 027 310. CASES CITED. 421 Page Throckmorton v. Davidson, 68 Iowa, 643, 27 N. W. 794 266 Throgmorton v. Finch, 3 Inst. 124, 4 Inst. 86, cited Cro. Jac. 344 292 Thurston v. Percival, 1 Pick. 415 241 Tawing v. Lumber Co., 40 Minn. 184, 41 N. W. 815 124 Thynn v. Thynn, 1 Vern. 296 199 Tibbits v. Tibbits, 19 Ves. 663 56 Tichenor v. Dodd, 4 N. J. Eq. 454 219 Tidd v. Lister, 3 De Gex, M. & G. 857 257 Tiernan v. Beam, 2 Ohio, 383 233 v. Roland, 15 Pa. St. 451 57 Tilley v. Thomas, 3 Ch. App. 67 278 Tillinghast v. Coggeshall, 7 R. I. 385 184 Tillotson v. Rose, 11 Mete. (Mass.) 299 254 Tinsley v. Tinsley, 52 Iowa, 14, 2 N. W. 528 235 Tobey v. McAllister, 9 Wis. 465 233 Todd v. Grove, 33 Md. 194 145, 153 v. Moorhouse, L. R. 19 Eq. 69 197 Tode v. Gross, 127 N. Y. 480, 2S N. E. 469 110 Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co., 54 Fed. 746 22 Toll v. Davenport, 74 Mich. 3S6, 42 N. W. 63 105 Tooth v. Hallett, 4 Ch. App. 242 245 Torrance v. Bolton, L. R. 14 Eq. 124, 8 Ch. App. 118 236 Torrey v. Cameron, 73 Tex. 583, 11 S. W. 840 195 Toulmin v. Price, 5 Ves. 235, 238 12 Tourville v. Naish, 3 P. Wms. 307 96 Toussaint v. Martinnant, 2 Term. R. 105 254 Tower v. Lord Rous, 18 Ves. 132, 13S , 237 Towle v. Mack, 2 Vt. 19 207 Towner v. Tickner, 112 111. 217, 244 285 Townley v. Bedwell, 14 Ves. 592 71 v. Sherborne, Bridg. 35, 2 White & T. Lead. Cas. Eq. 1738 205 Town of Cherry Creek v. Becker, 123 N. Y. 161, 25 N. E. 369 105 Town of Springport v. Teutonia Sav. Bank, 75 N. Y. 397, 402 315 Town of Venice v. Woodruff, 62 N. Y. 462, 468 315 Townsend v. Fenton, 30 Minn. 528, 10 N. W. 421; 32 Minn. 482, 21 N. W. 726 282 v. Little, 109 U. S. 504, 3 Sup. Ct 357 84, 85 v. Whitney, 75 N. Y. 431 255 Townshend v. Frommer, 125 N. Y. 446, 26 N. E. 805 185 v. Goodfellow, 40 Minn. 312, 41 N. W. 1056 277 v. Stangroom, 6 Ves. 328 287 Townshend Peerage Case, 10 Clark & F. 2S9. .'. 323 Township of Wayne v. Cahill, 49 N. J. Law, 144, 148, 6 Atl. 621 241 Tracey v. Sacket, 1 Ohio St. 54 141, 144 422 CASKS CITED. Page Tracy v. Colby, 55 Cal. 67 147 v. Craig, 55 Cal. 01 147 v. Talmage, 14 N. Y. 162 42 Trentman v. Fletcher, 100 Ind. 105 250 Trentor v. Potheu, 46 Minn. 29S, 49 N. W. 129 90 Trevor v. Trevor, 1 P. Wins. 622 184 Tribette v. Illinois Cent R. Co. (1892) 70 Miss. 182, 12 South. 32 17 Triebert v. Burgess, 11 Md. 452 270 Trimmer v. Bayne, 9 Ves. 209, 211 256 Trowbridge v. True, 52 Conn. 190 304 Trull v. Bigelow, 16 Mass. 406 98 Truman v. Truman, 79 Iowa, 500. 44 N. W. 721 281 Trusdell v. Lehman, 47 N. J. Eq. 218, 20 Atl. 391 127 Trustees v. Guthrie (1889) 86 Va. 125, 10 S. E. 31S 187, 191 Trustees of Columbia College v. Lynch, 70 N. Y. 440, 449-452 103 v. Thacher, 87 N. Y. 311 295 Trustees of Town of Brookhaven v. Smith, 118 N. Y. 634, 23 N. E. 1002. . 48 Trustees of Union College v. Wheeler, 61 N. Y. 88 215, 246 Trustees of Village of Watertown v. Cowen, 4 Paige, 510 103 Tryon v. Munson, 77 Pa. St. 250 210 Tuchman v. Welch, 42 Fed. 548, 559 297 Tuck v. Downing, 76 HI. 71 135 Tucker v. Seaman's Aid Soc, 7 Mete. (Mass.) 1SS 170 v. State, 72 Ind. 242 204 Tulk v. Moxhay, 11 Beav. 571; 2 Phil. Ch. 777 103, 295 Tunison v. Chamblin, 88 111. 378, 390 86 Tunstall v. Christian, 80 Va. 1 „ 304 Turner's Estate, In re, 1 Misc. Rep. 58, 23 N. Y. Supp. 135 64 Turman v. Bell, 54 Ark. 273, 15 S. W. 886 86 Turnan v. Hemman, 16 111. 400 109 Turner v. Collins, 7 Ch. App. 329 150 v. Corney, 5 Beav. 517 202 v. Crebill, 1 Ohio, 372 94 v. Flinn, 67 Ala. 529 257 v. Huggins, 14 Ark. 21 138 v. Morgan, 8 Ves. 143 262 v. Pierce. 34 Wis. 658 13, 14 v. Shaw, 96 Mo. 22, 8 S. W. 897 315 v. Turner, 15 Jur. 218; 14 Ch. Div. 829; 80 Va. 379 9, 130, 251 v. Wilkinson, 72 Ala. 301 217 Turpie v. Lowe, 114 Ind. 37, 15 N. E. 834 216 Turpin v. Banton, Hardin (Ky.) 320 270 Tussaud v. Tussaud, 9 Ch. Div. 363 59, 62, 66 Tuthill v. Morris, 81 N. Y. 94, 100 37 CASES CITED. 423 Page Tuttle v. Gilmore, 36 N. J. Eq. 617 202, 204 v. Jackson, 6 Wend. 213 92 Twin-Lick Oil Co. v. Marbury, 91 U. S. 587 43 Twombly v. Cassidy, 82 N. Y. 155 224 Twyne's Case, 3 Coke, 80, 1 Smith, Lead. Cas. 33 155 Tydings v. Pitcher, 82 Mo. 379 87 Tyler v. Hamersley, 44 Conn. 419, 422 9 v. Savage, 143 U. S. 79, 95, 12 Sup. Ct. 340 11 v. Wilkinson, 4 Mason, 397, Fed. Cas. No. 14,312 305 Tyrrell v. Bank of London, 10 H. L. Cas. 26 14S Tyrrell's Case, 2 Dyer, 155a, 1 White & T. Lead. Cas. Eq. 335 167 Tyson v. McGuineas, 25 Wis. 656 240 v. Passmore, 2 Pa. St. 122 120 v. Tyson, 31 Md. 134 120 Tyus v. Rust, 37 Ga. 574 329 u Uhlman v. New York Life Ins. Co., 109 N. Y. 421, 17 N. E. 363 249 Underwood v. Curtis, 127 N. Y. 523, 28 N. E. 585 71 Union Pac. Ry. Co. v. Chicago, R. I. & P. Ry. Co., 2 C. C. A. 174, 51 Fed. 309 269 v. McAlpine, 129 U. S. 305, 9 Sup. Ct. 286 281, 282 Union Pass. Ry. Co. v. Mayor, etc., 71 Md. 238, 17 Atl. 933 320 Union Trust Co. v. Illinois M. Ry. Co., 117 U. S. 437, 6 Sup. Ct. 809 334 United States v. Beebe, 127 U. S. 338, 8 Sup. Ct. 1083 44 v. Brighton Ranche Co., 26 Fed. 218 302 v. California & O. Land Co., 148 U. S. 31, 13 Sup. Ct. 458 97, 98 v. Elliot, 62 Fed. 801 22 v. Insley, 130 U. S. 263, 9 Sup. Ct. 485 44 v. Steffens, 100 U. S. 82 309, 310 v. Wilson, 118 U. S. 86, 6 Sup. Ct. 991 317 United States Trust Co. v. New York, W. S. & B. R. Co., 101 N. Y. 483, 5 N. E. 316 333 Upham v. Wyman, 7 Allen, 499, 502 34 Urann v. Coates, 109 Mass. 585 173 Uren v. Walsh, 57 Wis. 98, 14 N. W. 902 301 Urquhart v. Macpherson, App. Cas. 831 139 V Vail v. Foster, 4 N. Y. 312 235 v. Reynolds, 118 N. Y. 297, 302, 23 N. E. 301 139 424 CASES CITED. Page Valentine v. Austin, 124 N. Y. 400, 26 N. E. 973 95 v. Richardt, 120 N. Y. 272, 27 N. E. 255 13 Van Alen v. American Nat. Bank, 52 N. Y. 1 209 Vance v. Johnson, 10 Humph. 214 216 Vandever's Appeal, 8 Watts & S. 405 205 Vandoren v. Todd, 3 N. J. Eq. 397 233 Van Dyke's Appeal, 60 Pa. St. 481, 489 54 Vane v. Vane, 8 Ch. App. 385, 397 140 Van Epps v. Harrison, 5 Hill, 65 135 v. Van Epps, 9 Paige, 241 146 Van Houten v. Post, 32 N. J. Eq. 709 64 Van Keuren v. Cent. R. Co., 38 N. J. Law, 105, 167 86 v. Corkins, 66 N. Y. 77 244 Van Rensselaer v. Van Rensselaer, 113 N. Y. 213, 21 N. E. 75 13 Van Riper v. Van Riper, 2 N. J. Eq. 1 61 Vansant v. Allmon, 23 111. 30 223 Van Steenwyck v. Washburn, 59 Wis. 483, 509, 17 N. W. 2S9 57 Wan Wegenen v. Cooney, 45 N. J. Eq. 24, 10 Atl. 689 302 Varet v. New York Ins. Co., 7 Paige, 560, 24 Wend. 505 12 Varnum v. Leek, 65 Iowa, 751, 23 N. W. 151 333 Vason v. Ball, 56 Ga. 268 214 Yasser v. Henderson, 40 Miss. 519 -. . 150 Vaughan v. Hewitt, 17 S. C. 442 294 v. Vincent, 88 N. C. 110 333 Vaughn v. Johnson, 9 N. J. Eq. 173 294 Vaught v. Cain, 31 W. Va. 424, 427, 7 S. E. 9 278, 285 Veith v. McMurtry, 20 Neb. 341, 42 N. W. , 103 Verden v. Slocum, 71 N. Y. 345 222 Vomer v. Betz, 40 N. J. Eq. 256, 19 Atl. 206 210 Vernon v. Vawdry, 2 Atk. 119 210 Very v. Russell, 65 N. H. 646, 23 Atl. 522 223 Vickers v. Vickers, 37 Ch. Div. 526 64 Vidal v. Girard's Ex'rs, 2 How. 127, 155, 188-190, 194, 196 170, 187 Vigers v. Pike, 8 Clark & F. 562, 565 276 Village of Dwight v. Hayes, 150 111. 273, 37 N. E. 218 306 Virginia & A. M. Co. v. Hale, 93 Ala. 542, 9 South. 256 14 Von Trotha v. Bamberger, 15 Colo. 1, 24 Pac. 883 281 Vose v. Cowdrey, 49 N. Y. 336 27 Vought v. Williams, 120 N. Y. 253, 24 N. E. 195 277 Vreeland v. Clafflin, 24 N. J. Eq. 313 100 v. Ellsworth, 71 Iowa, 347, 32 N. W. 374 47 CASES CITED. 425 W Pag« Wabash & E. Canal Co. v. Beers, 2 Black, 448 32 Wadsworth v. Blake, 43 Minn. 509, 45 N. W. 1131 256 Wagner v. Shank, 59 Md. 313 294 Wahl v. Barnum, 116 N. Y. 87, 98, 22 N. E. 280 283 Waite v. Bingley, 21 Ch. Div. 674, 681 261 Wake v. Conyers, 1 Eden, 331, 2 White & T. Lead. Cas. Eq. 850 263 v. Wake, 3 Brown, Ch. 255 56 Wakeham v. Barker, 82 Cal. 46, 22 Pac. 1131 208 Wakeman v. Kingsland, 46 N. J. Eq. 113, 18 Atl. 680 329 Walcott v. Watson (Cir. Ct) 53 Fed. 429 277 Walden v. Skinner, 101 U. S. 577, 583 129 Walker v. Brooks, 125 Mass. 241 239 v. Hill, 22 N. J. Eq. 513 40 v. Preswick, 2 Ves. Sr. 622 234 v. Staples, 5 Allen, 34 227 v. Struve, 70 Ala. 167 235 v. Symonds, 3 Swanst. 1, 64 210 v. Walker, 101 Mass. 169 150 Wallace v. Greenwood, 16 Ch. Div. 3G2 73 v. Scoggins, 17 Or. 476, 21 Pac. 558 282 v. Stevens, 64 Me. 225 225 Waller v. Arniistead, 2 Leigh (Va.) 11 150 v. Catlett, 83 Va. 200 204 Walling v. Kinnard, 10 Tex. 508 286 Wallis v. Duke of Portland, 3 Ves. 502 154 v. Smith, 21 Ch. Div. 243, 260 108, 110 Walsham v. Stainton, 1 De Gex, J. & S. 678 148 Walter v. Selfe, 4 De Gex & S. 322 303 Walthen v. Smith, 4 Madd. 325 61 Walton v. Hargroves, 42 Miss. 18 235 v. Cody, 1 Wis. 420 229 Ward v. Arch, 15 Sim. 389 70 Wardell v. Williams, 62 Mich. 50, 28 N. W. 796 271 Warden v. Jones, 23 Beav. 487 283 Warder v. Baldwin, 51 Wis. 450, 8 N. W. 257 50 Ward's Ex'rs v. Hague, 25 N. J. Eq. 397 91 Warmstrey v. Tanfield, 1 Ch. 29, 2 White & T. Lead. Cas. Eq. 729 242 Warner v. Bates, 98 Mass. 274 174 v. Baynes, Amb. 589 262 v. Conant, 24 Vt. 351 293 v. McMullin, 131 Pa. St. 370, 18 Atl. 1056 11 426 CASE3 CITED. Page Warnock v. Harlow, 96 Cal. 298, 31 Pac. 1G6 104 Warren, Ex parte, 10 Ves. 621 332 v. Rudall, 1 Johns. & H. 13 53 Warren Co. v. Marcy, 97 U. S. 96 94 Warren Mills v. New Orleans Seed Co., 65 Miss. 391, 4 South. 298 18, 300 Warwick v. Queen's College (1871) 6 Ch. App. 716 16 Washburn v. Goodheart, 88 El. 229 160 v. Van Steenwyk, 32 Minn. 336, 20 N. W. 324 57 Washington v. Trousdale, Mart. & Y. 385 92 Waterman v. Banks, 144 U. S. 394, 12 Sup. Ct. 646 279 v. Matteson, 4 It. I. 539 216 v. Spaulding, 51 111. 425 200 Watson v. Doyle, 130 111. 415, 22 N. E. 613 275 v. Ferrell, 34 W. Va. 406, 12 S. E. 724 10 v. Hunter, 5 Johns. Ch. 169 299 v. Marston, 4 De Gex, M. & G. 230 274 v. Sutherland, 5 Wall. 74 290 v. Watson, 128 Mass. 152; 33 Beav. 574 56, 65 v. Wilcox, 39 Wis. 643 256 Watts v. Kellar, 5 C. C. A. 394, 56 Fed. 1 273 Weakley v. Watkins, 7 Humph. (Tenn.) 356 39, 41 Weaver v. Barden, 49 N. Y. 286 95 v. Carpenter, 42 Iowa, 345 140 v. Leiman, 52 Md. 708 193 v. Shenk, 154 Pa. St. 206, 26 Atl. 811 277 Webb, Estate of, 49 Cal. 541, 545 177 v. Earl of Shaftesbury, 7 Ves. 4S0 206 v. Fuller, 77 Me. 568, 1 Atl. 737 249 v. Hoselton, 4 Neb. 308 186 v. Smith, 30 Ch. Div. 192 258 Webber v. Clark, 136 111. 256, 26 N. E. 360, and 32 N. E. 748 100 Webster v. Cecil, 30 Beav. 62 276 v. Clark, 25 Me. 314 156 v. Dillon, 3 Jur. (N. S.) 432 296 v. Morris, 66 Wis. 366, 28 N. W. 353 188, 190 Webster's Appeal, 86 Pa. St. 409 256 Wedgewood v. Adams, 6 Beav. 600, 8 Beav. 103 274 Weeks v. Hobson, 150 Mass. 377, 23 N. E. 215 190 v. Weeks, 5 Ired. Eq. Ill 263 Weener v. Brayton, 152 Mass. 101, 25 N. E. 46 309 Weinstein v. National Bank, 69 Tex. 38, 6 S. W. 171 50 Weir v. Day, 57 Iowa, 84, 10 N. W. 304 156 Welch v. Whelpley, 62 Mich. 15, 28 N. W. 744 283 CASES CITED. 427 Page Welles v. Yates, 44 N. T. 525, 529 315 Wellesley v. Mornington, 2 Kay & J. 143 162 Wells v. Foster, 8 Mees. & W. 149 241 v. Miller, 66 N. Y. 255 252 v. Neff, 14 Or. 66, 14 Pac. 84, S8 101 v. Smith, 44 Miss. 296 236 v. Waterhouse, 22 Me. 131 137 Welsh <\ Crater, 32 N. J. Eq. 177 72 Wentz's Appeal, 126 Pa. St. 541, 17 Atl. 875 73 Werner v. Rawson, 89 Ga. 620, 15 S. E. 813 126 West v. Holmesdale, L. R. 4 H. L. 545, 553 183 v. Mayor, 10 Paige, 539 9 Westby v. Westby, 2 Dru. & War. 505 121 Westcott v. Middleton, 43 N. J. Eq. 478, 11 Atl. 490 303 Western Bank v. Sherwood, 29 Barb. 383 245 Weston v. Johnson, 48 Ind. 1 65 West Point Iron Co. v. Reymert, 45 N. Y. 703 301 Wetherell v. Eberle, 123 111. 666, 14 N. E. 675 317 v. Joy, 40 Me. 325 250 Wetherill v. Hough (N. J. Ch.) 29 Atl. 592 74 Whaley v. Elliot, 1 A. K. Marsh. 345 44 v. Whaley, 71 Ala. 159 195 Wharton, In re, 5 De Gex, M. & G. 33 79 Whatley v. Barker, 79 Ga. 790, 4 S. E. 387 37 Wheaton v. Peters, 8 Fet. (U. S.) 591 307 Wheeler v. Connecticut Mut. Life Ins. Co., 82 N. Y. 543, 550 117 v. Insurance Co., 101 U. S. 439 27 v. McGuire, 86 Ala. 398, 5 South. 190 89 v. Sage, 1 Wall. 518, 529 40, 151 Wheelock v. Noonan, 108 N. Y. 179, 15 N. E. 07 18, 301 Whelan v. Whelan, 3 Cow. 537 153, 173 Wheldale v. Partridge, 8 Ves. 236 7S Wheless v. Wheless (Tenn.) 21 S. W. 595 68 Whipple v. Fair Haven, 63 Vt. 221, 21 Atl. 533 14 White v. Ashton, 51 N. Y. 2S0 47 v. Blakemore, 8 Lea, 49 236 v. Carpenter, 2 Paige, 217, 239 195 v. Coleman, 127 Mass. 34 244 v. Denman, 1 Ohio St. 110 90 v. Downs, 40 Tex. 225 233 v. Foster, 102 Mass. 375, 380 87, 88 v. Jones, 92 N. C. 388 233 v. Meday, 2 Edw. Ch. 486 12 V. Megill (N. J. Ch.) 18 Atl. 355 217 428 CASES CITED. Page White y. Miller, 47 Ind. 385 254 v. O'Bannon, 86 Ky. 93, 5 S. W. 346 281 v. Patterson, 130 Pa. St. 429, 21 Atl. 360 86 v. Richmond & D. R. Co., 110 N. C. 456, 461, 15 S. E. 197 125 v. Rittenmyer, 30 Iowa, 268 214 v. Williams, 1 Paige, 502 234 Whitecar v. Michenor, 37 N. J. Eq. 6, 14 288 Whitoeomb v. Jacob, 1 Salk. 161 209 Whitehead v. Kitson, 119 Mass. 484 311 v. Wells, 29 Ark. 99 89 Whitely v. Learoyd, 33 Ch. Div. 347, 355 203 Whitfield v. Levy, 35 N. J. Law, 149 109 Whitman v. Porter, 107 Mass. 522 252 v. Weston, 30 Me. 2S5 105 Whitmore v. Hay (Wis.) 55 N. W. 708 120 Whitney v. Burr, 115 111. 2S9, 3 N. E. 434 267 v. Union Railway Co., 11 Gray, 359, 308 103 Whitridge v. Durkee, 2 Md. Ch. 442 254 v. Whitridge, 76 Md. 54, 24 Atl. 645 152 Whitten v. Whitten, 36 N. H. 332 260 Whitton v. Russell, 1 Atk. 448 115 Whitwell v. Winslow, 134 Mass. 346, 347 47 Wickersham v. Crittenden, 93 Cal. 32, 28 Pac. 788 22 Wickes v. Lake, 25 Wis. 71 85 Wickman v. Robinson, 14 Wis. 493 236 Wier v. Johns (Colo. Sup.) 24 Pac. 262 126 Wilbanks v. Wilbanks, 18 111. 17 51 Wilber v. Lynde. 49 Cal. 290 148 Wilcocks v. Wilcocks, 2 Vera. 558, 2 White & T. Lead. Cas. Eq. *415, 417. . 28, 66 Wilcox v. Hill, 11 Mich. 256 83 Wilde v. Gibson, 1 H. L. Cas. 605 138 Wilder v. Pigott, 22 Ch. Div. 263 57 v. Ranney, 95 N. Y. 7, 12 75 Wilhelm v. Eaves, 21 Or. 194, 27 Pac. 1053 109 Wilhelmson v. Bentley, 25 Neb. 473, 41 N. W. 387 313 Wilkinson v. Babbitt, 4 Dill. 207, Fed. Cas. No. 17,668 256 v. Elliott, 43 Kan. 590, 23 Pac. 614 93 v. May, 69 Ala. 33 234 v. Searcy, 74 Ala. 243 328 v. Sherman, 45 N. J. Eq. 421, 18 Atl. 22S 144 v. Sterne, 9 Mod. 427 250 v. Stuart, 74 Ala. 198, 203 260, 261 v. Wilkinson, 2 Sim. & S. 237 207 CASES CITED. 429 Page Willan v. Willan, 16 Ves. 72 120 Willard v. Finnegan, 42 Minn. 476, 44 N. W. 985 224 v. Tayloe, 8 Wall. 557, 567 40, 274 Willesford v. Watson, L. R. 14 Eq. 572 269 William Rogers Manuf'g Co. v. Rogers, 58 Conn. 356, 20 Atl. 467 268, 296 Williams v. Fitch, 18 N. Y. 546 200 v. Haynes, 78 Ga. 133 10 v. Howard, 3 Murph. (N. C.) 74 267 v. Ingersoll, 89 N. Y. 508 244 v. Jenkins, 11 Ga. 595 333 v. Lambe, 3 Brown, Ch. Cas. 264 106 v. McKay, 46 N. J. Eq. 25, 18 Atl. 824 204 v. Matthews, 47 N. J. Eq. 196, 20 Atl. 261 328 v. Nichol, 47 Ark. 254, 1 S. W. 243 202, 211 v. Powell, 66 Ala. 20 147 v. Robinson, 16 Conn. 517 333 v. Spurr, 24 Mich. 335 13S v. Vreeland. 32 N. J. Eq. 135 199 v. Williams, 63 Md. 371; 55 Wis. 300, 12 N. W. 405, and 13 N. W. 274 144, 150, 208 William's Appeal, 73 Pa. St. 249 162 Williamson v. Brown, 15 N. Y. 354 82 v. Hitner, 79 Ind. 233 119 Willis v. Gay, 48 Tex. 463 87 v. Mclntyre, 70 Tex. 34, 7 S. W. 594 251 v. Morris, 63 Tex. 458 154 v. Smyth, 91 N. Y. 297 178 v. Willis, 2 Atk. 71 196 Willmott v. Barber, 15 Ch. Div. 96, 106 126 Willoughby v. Lawrence, 116 111. 11, 4 N. E. 356 103 Will's Appeal, 22 Pa. St. 325 201 Wills v. Stradling, 3 Ves. 378 2S2 Wilson v. Davisson, 2 Rob. (Va.) 3S4, 404 231 v. Eigenbrodt, 30 Minn. 4, 13 N. W. 907 219 v. Furness R. Co., L. R. 9 Eq. 28, 33 268 v. Hart, 1 Ch. App. 463 87 v. Hill, 46 N. J. Eq. 369, 19 Atl. 1097 301 v. Hooser, 72 Wis. 420, 39 N. W. 772 317 v. Joseph, 107 Ind. 490, 8 N. E. 616 30 v. McCarty, 55 Md. 277 44 v. Roots, 119 111. 379, 10 N. E. 204 279 v. Webber, 2 Gray, 558 321 v. Western N. C. Land Co., 77 N. C. 445 104 4 30 CASES CITED. Pago Winans v. Huyck, 71 Iowa, 459, 32 N. W. 422 315 Winchell v. Winchell, 100 N. Y. 159, 163, 2 N. E. 897 282 Winchester v. Baltimore & S. R. Co., 4 Md. 231 89 Wing v. Spaulding, 64 Vt. 83, 23 Atl. 615 328 Winkfield v. Combe (1679) 2 Ch. Cas. 16 129 Winslow v. Cummings, 3 Cush. 358 171 Winston v. Gwathney, 8 B. Mon. 19 136 Winters v. Bank, 33 Ohio St. 250 219 Wintour v. Clifton, 8 De Gex, M. & G. 641, 650 53 Wisconsin Cent. R. Co. v. Wisconsin River Land Co., 71 Wis. 94, 36 N. W. 837 186, 215 Wise v. Grand Ave. R. Co., 33 Fed. 277 307 Wiseman v. Hutchinson, 20 Ind. 40 87 Wisner v. Dodds, 14 Fed. 656 322 Wiswell v. First Cong. Church, 14 Ohio St. 31 313 Withers v. Jenkins, 6 Rich. (N. S.) 122 91 v. Sims, 80 Va. 651 15 W. J. Johnston Co. v. Hunt, 21 N. Y. Supp. 314, 66 Hun, 504 15 Wolverhampton & W. R. Co. v. London & N. W. R. Co., L. R. 16 Eq. 433 438 295 Womack v. Powers, 50 Ala. 5 292 Wood v. Burnham, 6 Paige, 514 184 v. Chapin, 13 N. Y. 509 96 v. City of Brooklyn, 14 Barb. 425 9 v. Swift, SI N. Y. 31 294 v. Trask, 7 Wis. 566 215 Woodall v. Kelly, 85 Ala. 368, 5 South. 164 232 Woodburn's Estate, 138 Pa. St. 606, 21 Atl. 16 57 Woodbury v. Woodbury, 141 Mass. 329, 5 N. E. 275 153 Woodcock v. Bennett, 1 Cow. 711 14 Woodruff v. Morristown Inst., 34 N. J. Eq. 174 246 v. Semi-Tropic Land & Water Co.. 87 Cal. 275, 25 Pac. 354 279 v. Woodruff, 44 N. J. Eq. 349, 16 Atl. 4 273, 277 Woods v. Evans, 113 111. 186 277 v. Farmere, 7 Watts, 382, 387 83 Woolcocks v. Hart, 1 Paige (N. Y.) 185 257 Wooldridge v. Norris, L. R. 6 Eq. 410 254 Woollam v. Hearn, 2 White & T. Lead. Cas. Eq. 920 287 Woolley v. Holt, 14 Bush, 788 214 Woolsey v. Judd, 4 Duer, 379 30S Word v. Word, 90 Ala. 81, 7 South. 412 332 Wormer v. Waterloo Agricultural Works, 62 Iowa, 699, 14 N. W. 331 256 Wormley v. Wormley, 8 Wheat. 421 147 CASES CITED. 431 Page Worrall v. Harford, 8 Ves. 4, 8 207 v. Munn, 38 N. Y. 137 284 Worsley v. Earl of Scarborough, 3 Atk. 392 94 Worth v. Hill, 14 Wis. 559 225 Worthy v. Brady, 91 N. C. 269 157 v. Caddell, 76 N. C. 82 90 Wragg v. Comptroller General, 2 Desaus. Eq. 509, 520 233 Wright v. Arnold, 14 B. Mon. 638 150 v. Ellison, 1 Wall. 16, 22 7 v. Henderson, 12 Tex. 43 215 v. Laing, 3 Barn. & C. 165 251 v. Marsh, 2 G. Greene (Iowa) 104 260 v. Moore, 38 Ala. 593 305 -v. Pearson, 1 Eden, 119 184 v. Ross, 36 Cal. 414 227 v. Vanderplank. 8 De Gex, M. & G. 133, 135, 137, 146 150-152 v. Wilkin, 2 Best & S. 232 174 "Wristen v. Bowles, 82 Cal. 84, 22 Pac. 1136 271 Wurts' Ex'rs v. Page, 19 N. J. Eq. 365 70, 72 Wyatt v. Barwell, 19 Ves. 435 92 v. Stewart, 34 Ala. 716 92 Wylson v. Dunn, 34 Ch. Div. 569, 577 273 Wythes v. Labouehere, 5 De Gex & J. 595 139 v. Lee, 3 Drew, 396 236 Y Yancey v. Mauck, 15 Grat. 300 235 v. Radford, 86 Va. 63S, 10 S. E. 972 259 Yaple v. Stephens, 36 Kan. 6S0, 14 Pac. 222 255 Yarbrough v. Thompson, 3 Smedes & M. (Miss.) 291 326 Yard v. Pacific Mut. Ins. Co., 10 N. J. Eq. 480 38 Yauger v. Skinner, 14 N. J. Eq. 3S9 143 Youmans v. Youmans, 26 N. J. Eq. 149, 154 15 Youn v. Lamont (Minn.) 57 N. W. 478, 480 145 Young v. Devries, 31 Grat. 304 100 v. English, 7 Beav. 10 250 v. Kellar, 94 Mo. 581, 7 S. W. 293 96 v. Young, 80 N. Y. 422, 437; 45 N. J. Eq. 27, 34, 39, 16 Atl. 921 178, 275, 281 Youst v. Martin, 3 Serg. & R. 423 96 Yundt's Appeal, 13 Pa. St. 575 64 432 CASES CITED. Z Page Zabriskle v. Smith, 13 N. Y. 322 240 Zaegel v. Kuster, 51 Wis. 31, 7 N. W. 781 224 Zeisweiss v. James, 63 Pa. St. 405 188 Zimmerman v. Fraley, 70 Md. 561, 17 Atl. 560 210 Zoeller v. Riley, 100 N. Y. 108, 2 N. E. 388 98, 105 Zuchtmann v. Roberts, 109 Mass. 53 49 INDEX. (the figures refer to pages.) A ACCIDENT, definition, 113. grounds for relief against, 114. conscientious title to relief, 114. no relief against contract obligations, 115. Inadequate remedy at law, 11G. lost instruments, 117. destruction of trust estate, 117. judgments at law, 117. penalties and forfeitures, 118. ACCOUNTING, mistake in settlement of accounts, 130. at law and in equity, 247. equity jurisdiction, 248. fiduciary relation between parties, 248. mutual accouuts, 249. complicated cases, 249. application of payments, 249. by debtor, 249. by creditor, 250. by the law, 251. ACCUMULATION, of rents and profits of trust estate, 181. ACTIONS, at law, injunction against prosecution, 291. ACTIVE TRUSTS, nature of cestui que trust's estate, 1S5. ACTUAL NOTICE, see "Notice." ADEMPTION, testamentary provision followed by gift or advancement, 61. eq.jur.— 28 (433) 434 INDEX. [The figures refer to pages.] ADEQUATE REMEDY AT LAW. test of jurisdiction, 10. rnulticiplicity of suits, 16. in case of accident, 110. injunction, 290. ADJOINING LANDOWNERS, injunctions to protect lateral and subjacent support, 303. AIR, injunction against pollution of, 303. ALIENS. as trustees, 171. ANCILLARY REMEDIES. see "Discovery"; 'Tnterpleadei'"; "Ne Exeat"; "Perpetuation of Test! mony"; "Receivers"; "Witness, Examination de Bene Esse." ARBITRATION AND AWARD, contract for arbitration, specific performance, 269. award, specific performance. 269. ASSIGNMENT, definition of term, 238. of cboses in action, and possibilities prohibited at common law but per- muted in equity, 23S. relaxation of common-law rule, 239. what assignments now recognized at law, 239. survival of cause of action the test, 239. assignments void as against public policy, 241. champerty and maintenance, 241. salaries of public officers, 241. equitable assignments, 241. assignment of possibility or expectancy, 242. of property to be acquired in the future, 242. of future wages, 243. order on specific fund, 243 notice to assignee, 244. notice to debtor, 244. priorities between assignees, 245. assignee takes subject to equities, 245. rights of second assignee as against assignor, 246. rule does not apply to negotiable paper, 246. of dower, 261. of mortgage, 21S. of vendor's lien. 2'.i3. INDEX. 435 [The figures refer to pages.) ASSIGNMENT FOR BENEFIT OF CREDITORS, as an active trust, 185. ATTORNEY AND CLIENT, contracts between, 149. B BILL OF PEACE, preventing multiplicity of suits, 16. BILL TO PERPETUATE TESTIMONY, see "Perpetuation of Testimony." BONA FIDE PURCHASERS, definition, 95. valuable consideration, 95. antecedent debts, 96. adequacy of consideration, 96. payment before notice, 96. good faith, 96. notice, 97. vendee in quitclaim deed, 97. bona fide purchaser from purchaser with notice, see, also, "Priorities." BOUNDARIES, settlement of, 263. c CANCELLATION, basis of jurisdiction, 315. void instruments, 315. invalidity apparent on face, 315. instrument apparently valid, 316. voidable instruments, 316. not granted as against bona fide purchaser of legal title without notice. 104. of contract for fraud, 130. CATCHING BARGAINS, presumption of fraud, 142. CESTUI QUE TRUST, see "Trusts." CHARITIES, what are, 186. distinctions between private and charitable trusts, 188. cy pres doctrine, 189. 436 INDEX. [The figures refer to pages.] CHATTEL MORTGAGES, definition, 220. mortgagee's title, 220. equity of redemption, 220. distinction between, and pledge, 227. see, also, "Mortgages." CLOUD ON TITLE, suit to remove, 316. basis of jurisdiction, 316. possession necessary, 317. COMPENSATION, specific performance with compensation, 283. COMPOSITION WITH CREDITORS, secret preferences, 154. COMPROMISE, effect of mistake of law, 121. CONDITIONAL SALE, or mortgage, 217. CONSIDERATION, conveyances without, resulting trusts. 193. equity founded on value, superior to one founded on voluntary transfer, 99. inadequacy, presumption of fraud, 141. as defense to suit for specific performance. 274. payment of, as part performance of contract, 282. to support trust, 170. valuable consideration necessary to constitute bona fide purchaser, 95. CONSTRUCTIVE NOTICE, see "Notice," CONSTRUCTIVE TRUSTS, see "Trusts." CONTEMPT, disobedience of decrees of equity, 29. CONTRACTS, effect of mistake, see "Mistake." for sale of land, conversion, 69. injunction against breach, 294. of fiduciary character, when silence is fraud. 138. relief against on ground of accident, 115. with persons under mental disability or duress, 143. see, also, "Specific Performance." INDEX. 437 [The figures refer to pages.] CONTRIBUTION, equality is equity, 32. 252. between partners, 253. between corporate stockholders, 253. between sureties, 253. contracts affecting right to, 253. none between wrongdoers, 253. between persons liable for mortgage debt, 225. CONVERSION, definition, 67. equity looks on that as done which ought to be done, 26. words sufficient to work a conversion, 68. contract for sale of land, 69. time of conversion, 69. lease with privilege of purchase, 71. effect of conversion, 7L effect of actual conversion rightly made, 72. conversion exists only for purpose of instrument directing it, 74. total or partial failure of purposes for which conversion is directed, 76. total failure, 76. partial failure, 77. conversion directed by will, 77. conversion directed by deed, 77. double conversion, 78. reconversion, 79. COPYRIGHT, injunction against infringement, 307. CORPORATIONS, acting as trustees, 170. capital stock trust fund for creditors, 21. contracts between officers and corporation, 150. for sale of stock, specific performance, 266. contribution between stockholders liable for debts of, 253. injunction against violation of rights of stockholders, 312. receivers of, 334. COVENANTS, restrictive, injunction against breach, 295. purchaser with notice, 103. CRIMES, equity has no jurisdiction over, 8. jurisdiction not divested because wrongful act is a crime. 8. statutes conferring jurisdiction, constitutional, 8. 438 INDEX. [The figures refer to pages.] CY PRES. doctriue of, 189. D DAMAGES, liquidated damages or penalty, 108. DE BENE ESSE, see "Witness, Examination de Bene Esse." DEED, absolute, as mortgage, 210. DEFINITION, of accident, 113. of equity. 1. of injunction, 288. of mistake, 117. DEPOSITION, see "Perpetuation of Testimony"; "Witness. Examination de Bene Esse." DEPOSIT OF TITLE DEEDS, lien created by, 229. DISCOVERY, definition, 318. origin, 318. effect of statutes removing interest as ground for disqualification of wit- ness, 320. rules respecting discovery, 320. incriminating matters, 320. confidential communications, 321. public business, 321. extent of disclosure required, 321. production of documents, 321. retainiug jurisdiction to award complete relief, 14. DOCUMENTS, compelling production of, 321. DOWER, assignment of, 261. election between, and testamentary gift. 55. DRUNKENNESS, contracts with intoxicated persons, 144. INDEX. 439 [The figures refer to pages.] E EASEMENTS, of light and access, protection by injunction, 306. ELECTION, definition, 50. in favor of instrument, 51. against instrument, 51. conditions requiring election, 52-54. intention to dispose of donee's property, 52. intention must clearly appear, 52. parol evidence not admissible to prove intention, 53. will partially invalid, 54. gift to person required to elect, 54. election between dower and testamentary gift, 55. mode of election, 55. express election, 55. implied election, 56. ascertainment of values, 56. election by persons under disability, 57. married women, 57. infants, 57. lunatics, 57. effect of election, 58. EQUITABLE ESTOPPEL, see "Estoppel," 50. EQUITABLE LIENS, see "Liens." EQUITABLE MORTGAGES, what are, 228. EQUITABLE WASTE, injunction against, 299. EQUITY, definition and nature of, 1. equity will not suffer a right to be without a remedy, 20. equity regards substance rather than form, 23. equity looks on that as done which ought to be done, 25. equity imputes an intention to fulfill an obligation, 27. equity acts in personam, and not in rem, 28. equity acts specifically, and not by way of compensation, 31. equity follows the law, 33. •140 INDEX. [The figures refer to pages.] EQUITY— Cont'd, equity aids the vigilant, uot those who slumber on their rights, 42. see, also, "Maxims." ESTOPPEL, equitable, definition, 45. essential elements, 47-50. misrepresentation or concealment of material facts, 47. knowledge of falsity, 47. Ignorance of facts by other party, 48. intent to have representations acted on, 48. reliance on representations, 49. effect of estoppel, 50. equitable estoppel originates in the maxim that he who asks equity must do equity, 38. equity of person misled, superior to his who has misled him, 101. EVIDENCE, degree of proof required for reformation, 315. parol, as to fraud aud mistake in suit for specific performance, 2S6. parol, to establish resulting trust, 194, 195. parol, to prove absolute deed a mortgage 216. parol, to prove mistake and fraud, 128. parol, to show intention in cases of satisfaction, 58. see "Witness, Examination de Bene Esse"; "Perpetuation of Testi- mony." EXECUTED TRUSTS, interpretation, 182. EXECUTORY TRUSTS, interpretation, 182. EXONERATION, when right exists, 253. rights of surety as against principal, 254. of person paying mortgage debt, 225. EXPRESS NOTICE, see "Notice." F FALSE REPRESENTATIONS, see "Estoppel"; "Fraud." FORECLOSURE, of mortgage, 220. FORFEITURES, see "Penalties and Forfeitures.'* INDEX. 441 [The figures refer to pages. J FRAUD, equity looks on that as done which ought to be done, 26. equity regards substance rather than form, 25. he who comes into equity must come with clean hands, 40. definition, 130. classification, 132. actual fraud, 133. wrongful acts or misrepresentations, 133. representation must be contrary to fact, 134. must be of fact and not of opinion. 134. knowledge of falsity, 135. reckless representations. 135. negligent ignorance, 135. materiality of misrepresentation and reliance thereon, 136. wrongful omissions, 137. patent and latent defects, 138. contracts of a fiduciary nature, 138. rights and duties of defrauded party, 139. fraud renders transactions voidable, not void, 139. must act with reasonable diligence, 140. must come with clean hands, 140. against whom rescission will be granted, 140. Inequitable or unconscientious transactions, 140. presumption of fraud from nature of transaction, 141. inadequacy of consideration, 141. catching bargains, 142. post obit bonds, 142. fraud presumed from position or condition of parties, 142. contracts with persons under mental disability or duress, 143. insanity, 143. mental weakness, 144. drunkenness, 144. duress and undue influence, 145. contracts between persons in fiduciary relations, 145. between trustee and cestui que trust, 146. where trustee contracts with himself, 146. where trustee deals with cestui que trust, 147. between principal and agent, 147. dealings without intervention of principal, 148. dealings between agent and principal, 148. between attorney and client, 149. between guardian and ward, 150. between parent and child, 150. 442 INDEX. [The figures refer to pages.] FRAUD— Cont'd, between corporate officers and corporation, 150. between executors and administrators, 150. between partners, 151. between husbands and wives, 151. gifts between persons in fiduciary relations, 151. persons within operation of principle, 152. frauds on third persons, 153. secret preference in composition with creditors, 154. fraudulent conveyances, 155. the creditor, 150. must have lien on property, 150. demand need not be liquidated at time of transfer, 156. existing and subsequent creditors, 157. Intent to defraud, 157. grantee's participation in fraudulent intent, 158. transfer of property, ir.9. exempt property, 159. personal services of debtor, 100 fraud on marital rights, 1(>0. conveyance of property in contemplation of marriage, 100. fraud on powers, 101. illusory appointment, 101. as basis of constructive trusts, 198. as defense to suit for specific performance 276. execution of written contract prevented by, 283. mistake of law procured by, 120. FRAUDS, STATUTE OF, as defense to suit for specific performance, 280. effect on private trusts, 173. not an instrument of fraud. 29. FRAUDULENT CONVEYANCES, see "Fraud." G GIFTS, . between persons in fiduciary relations, 151. imperfect, invalid as trust, 178. GOOD FAITH, bona fide purchaser, 95. GOOD WILL, sale of, injunction against violation, 295. INDEX. 443 [The figures refer to pages.] H HUSBAND AND WIFE, wife's equity to settlement, 37. see, also, "Married Women." I ILLEGALITY, he who comes into equity must come with clean hands. 40. of contract, as ground for refusing specific performance, 272. illegal object of trust, 180, 192. IMPLIED NOTICE, see "Notice." IMPROVEMENTS, as part performance of contract, 2S1. lien for, 230. INFANCY, election by infant, 57. infant as trustee, 171. INJUNCTION, definition, 288. mandatory injunctions, 288. preventive injunctions, 281*. interlocutory injunctions, 289. final injunctions, 289. jurisdictional principles, 289. inadequate remedy at law, 290. Irreparable injury, 290. classes of cases where injunction may be used, 290. to restrain proceedings at law, 29, 291. basis of jurisdiction, 291. before judgment, 291. after judgment, 292. grounds for, 293. effect of power of common-law courts in regard to new trials, 294. effect of right to interpose equitable defense in legal action, 294. to restrain breach of contract, 294. equivalent to specific performance, 294. test of right to injunction, 295. restrictive covenants in deed, 295. contracts in partial restraint of trade, 295. contracts for personal services, 29(3. must be of special or unique character, 296. 444 INDEX. [The figures reier to pages.] INJUNCTION-Confd, to restrain commission of torts, 297. plaintiff must establish right asserted by him, 298. violation of right by defendant, 298. probability or danger of violation, 298. classes of torts enjoined, 299. Injuries to real property, 299. waste, 299. definition of, 299. by mortgagor, 299. equitable waste, 300. trespass, 300. irreparable injury, 300. continuous trespasses, 300. nuisances, 301. definition, 301. distinction between public and private nuisances, 301. injunction against public nuisance, 302. injunction against private nuisance, 302. nuisances to dwelling houses and houses of business, 302. test of jurisdiction, 302. corruption or pollution of air, 303. noisy trades, 303. nuisances affecting right to lateral and subjacent support of soil, 303. nuisances affecting water rights, 304. rights respecting quantity, 304. rights respecting quality, 305. nuisances to easements of light and access, 306. protection of patents, copyrights, trade-marks, and literary property, 306. basis of jurisdiction, 306. patents, 307. copyrights, 307. unpublished works of literature, science, and art, 308. letters, 308. lectures, 308. trade-marks, 309. basis of jurisdiction, 309. who entitled to protection, 309. statutory regulations, 309. protection of other than property rights, 310. libels and slanders, 310. INDEX. 445 [The figures refer to pages.J INJUNCTION— Cont'd, intimidating publications, 311. mental anguish as ground for jurisdiction, 311. to protect trusts and equitable rights, 312. trustees using legal powers to violate trust, 312. partners doing acts inconsistent with partnership obligntions, 312. officers of corporation violating rights of stockholders, 312. public officers, 313. transfer of negotiable paper, 313. IN PARI DELICTO, he who comes into equity must come with clean hands, 42. INSANITY, contracts with lunatic, 143. INSOLVENCY, title of assignee, 99. INSURANCE, contracts for, specific performance, 270. INTERLOCUTORY INJUNCTION, nature of, 289. INTERPLEADER, definition, 32G. preventing multiplicity of actions, ground of jurisdiction, 32G. legal and equitable claims, 320. identity of subject-matter claimed, 327. priority of title between claimants, 328. complainant must have no interest in subject-matter. 328. complainant must have incurred no liability to either party, 329. INTOXICATION, contracts with intoxicated persons, 144. IRREPARABLE INJURY, as ground for injunction, 290. J JUDGMENTS, at law, relief in equity, 117. injunction against enforcement, 292. JURISDICTION, adequate remedy at law, 10. erroneous assumption of, collateral attack, 11. none over crimes and criminal prosecutions, 8. not divested by enlargement of legal remedy, 11. 446 INDEX. [The figures refer to pages.] JURISDICTION— Cont'd, over subject-matter beyond territorial jurisdiction, 29. preventing multiplicity of suits, 15. retaining, to award complete relief, 13. L LACHES, equity aids the vigilant, not those who slumber on their rights, 42. as defense to suit for specific performance, 275. LATERAL SUPPORT, protection by injunction, 303. LAW, mistake of, 118. LEASE, with privilege of purchase, conversion, 71. LECTURES, injunction against unauthorized publication, 308. LETTERS, injunction against unauthorized publication, 308. LIBEL AND SLANDER, injunction against publication, 310. LIENS, equitable, definition, 227. distinguished from common-law lien, 227. equitable mortgages, 228. agreement to give mortgage, 228. imperfect execution of mortgage, 229. deposit of title deeds, 229. mortgage of equitable estate, 229. liens based on considerations of justice, 230. improvements by occupant of land, 230. repairs by cotenant, 230. improvements by tenant for life, 231. vendor's lien, 231. on what principles founded, 231. how far recognized in United States, 232. fixed and certain debt, 233. against whom enforced, 233. assignment of, 233. waiver of, 234. express reservation of lien, 234. under contract of sale, 235. INDEX. 447 [The figures refer to pages.] LIENS— Cont'd, vendee's lien, 236. charges of debts and legacies, 23G. exoneration of testator's personal property, 237. remedies of creditor or legatee, 237. mortgage as, 212, 214. on specific property, superior to lien general in its scope, 100. LIMITATIONS, STATUTE OF. equity aids the vigilant, not those who slumber on their rights, 43. LIQUIDATED DAMAGES, or penalty, 108. LIS PENDENS, purchase pendente lite, 93. see, also, "Notice." LITERARY PROPERTY, protection by injunction, 308. LOST INSTRUMENTS, equity jurisdiction, 12. relief on ground of accident, 117. LUNATICS, election by, 57. contracts with, 143. M MANDATORY INJUNCTION, what is, 288. MARRIAGE, as part performance of contract, 282. conveyance of property in contemplation of. fraud, 1G0. marriage settlement, interpretation of, 183. MARRIED WOMEN, acting as trustees, 171. election by, 57. wife's equity to settlement, 37. MARSHALING. equality is equity, 32. when right exists, 256. origin of right, 256. as between junior and senior mortgagees, 257. as between individual and firm creditors, 257. as between legatees and devisees, 257. limitations on rule, 257. 448 INDEX. [The figures refer to pages.] MASTER AND SERVANT, contract of hiring and service, injunction against breach, 296. specific performance, 208. MAXIMS, definition and classification, 19. enabling maxims, 19. restrictive maxims, 20. equity will not suffer a right to be without a remedy, 20. right must not be merely a moral right, nor contravene statutes or public policy, 20. inadequacy of legal remedy in particular instance, 20. equity regards substance rather than form, 23. in case of penalties and forfeitures, 23. In case of mortgages, 24. in case of suretyship, 24. in case of fraud, 25. equity looks on that as done which ought to be done. 25. does not apply as against third persons, 27. does not apply in favor of one having no right to regard thing as done, 27. in cases of conversion, 26, 07. as between vendor and vendee. 20. as between mortgagor and mort^ajree. 26. in cases of fraud, 20. equity imputes an intention to fulfill an obligation. 27. application to doctrine of performance, 27, 00. application to case of trustees, 28. satisfaction of debts by legacies, 60. equity acts in personam, and not in rem, 0, 28. statutory qualification, 2S. equity acts specifically, and not by way of compensation. 31. equality is equity, 32. leaning against joint tenancies and joint obligations, 32. application to doctrines of contribution and marshaling, 32. liens not divested, 32. equity follows the law, 22, 33. as regards legal estates, 33. as regards equitable estates. 33. rules of evidence, 34. construction of contracts, 34. where the equities are equal, the law will prevail, 35, 103. tacking of mortgages, 35. INDEX. 449 [The figures rpfer to pages.] MAXIMS— Cont'd, where there are equal equities, the first in order of time shall prevail, 36, 105. priority between unrecorded mortgages, 36. he who seeks equity must do equity, 36. wife's equity to a settlement, 37. cancellation of usurious contract, 37. equitable estoppel, 37. does not apply to matters not in litigation, 38. does not apply to equity in favor of third person, 38. foundation for doctrine of election, 50. he who comes into equity must come with clean hands, 38. oppressive and unconscientious conduct, 39. fraudulent conduct, 40, 140. illegal transactions, 40. applies only to transaction in litigation, 41. does not apply where parties are not in pari delicto, 42. equity aids the vigilant, not those who slumber on their rights, 42. laches,. 42. statute of limitations, 43. does not apply to persons under disability, 44. does not apply to sovereign power, 44. MENTAL ANGUISH, as ground for injunction, 311. MENTAL WEAKNESS, effect on contracts, 144. MISREPRESENTATIONS, see "Estoppel"; "Fraud." MISTAKE, definition, 117, may be of law or of fact, 118. of law, 118. no ground for relief, 118. exceptions, 119. in case of fraud, imposition, or misrepresentation. 120. where no contract is really formed, 120. antecedent private legal rights and liabilities, 121. compromises of doubtful claims, 121. of fact, 122. fundamental mistake of fact, 122. as to nature of transaction, 123. as to person with whom contract is made, 123. eq.jur.— 29 450 INDEX. [The figures refer to pages.] MISTAKE— Cont'd, as to subject-matter, 123. nonexistence of, 123. as to nature or fundamental qualities, 124. unilateral mistake as to subject-matter, 125. fact material to transaction, 125. negligence of mistaken party, 126. obligation to disclose knowledge, 126. mistake of expression, 127. apparent on face of instrument, 128. parol evidence to prove, 128. does not apply to mistakes in wills, 128. In execution of powers, 130. in settlement of accounts and execution of release, 130. as defense to suit for specific performance, 276. as ground for reformation, 314. MORTGAGES, equity looks on that as done which ought to be done, 26. equity regards substance rather than form, 24. how regarded in equity, 212. creation of equity of redemption, 213. once a mortgage, always a mortgage, 213. how regarded in United States, 214. two systems, 214. in some states regarded merely as a lien, 214. in others as vesting mortgagee with legal title, 214. absolute deed as mortgage, 216. parol evidence, 216. conditional sale or mortgage, 217. intention of parties is the criterion. 217. assignment of mortgage, 218. of debt, carries mortgage with it, 218. transfer of mortgaged land, 210. subject to mortgage, 219. assumption of mortgage by grantee, 219. grantee is principal and mortgagee is surety, 219. enforcement against grantee, 220. liability in inverse order of alienation, 225. foreclosure, 220. strict foreclosure, 221. by action, 221. objects of, 221. title of purchaser, 222. INDEX. 451 [The figures refer to pages.] MORTGAGES-Confd, distribution of surplus, 222. personal judgment for deficiency, 222. by sale under power, 222. concurrent remedies, 223. action for debt, 223. redemption, 223. meaning of term, 223. who may redeem, 224. from debt in its entirety, 224. contribution and exoneration, 225. equitable, what are, 228. marshaling, between junior and senior mortgagees, 237. receiver of premises, 333. subrogation of junior mortgagee to rights of senior mortgagee. 255. tacking, 35. trust deeds, 185. unrecorded mortgage, priority over subsequent judgment, 100. no priority over purchaser at execution sale, 100. waste by mortgagor, injunction, 299. see, also, "Chattel Mortgages." MULTIPLICITY OF SUITS, equity retains jurisdiction to award complete relief, 13. jurisdiction to prevent. 15. suits by or against numerous persons, 16. reiterated litigation between same individuals, 17. repeated trespasses, 300. as ground for jurisdiction in interpleader suits, 329. MUTUALITY OP OBLIGATION, want of, as defense to suit for specific performance, 273. N NE EXEAT, nature of writ, 325. when issued, 325. NEGLIGENCE, of mistaken party, 126. NEGOTIABLE INSTRUMENTS, injunction against transfer, 313. NOTICE, definition, 80. 452 INDEX - [.The figures refer to pages.] NOTICE— Cont'd, distinction between notice and knowledge, 81. classification. 81. actual notice, SI. express or implied, 81. vague reports, 83. constructive notice, 83. notice of fact is notice of cause, 84. visible appearance of property, 84. possession of title deeds, 85. possession as notice, S5. possession of vendor, 86. recitals in title papers, 87. notice to agent, 88. when notice must come to agent, 89. notice by record, 90. object of recording acts, 90. compliance with statutory requirements, 90. to whom record is notice, 91. notice of unrecorded deed, effect, 92. lis pendens as notice, 93. litigation must involve specific property, 94. description of property in pleading, 94. jurisdiction of court, 94. duration of suit, 94. doctrine applies only to parties, 95. statutory enactments, 95. purchaser with notice of an equity, takes subject to it, 102. notice of restrictive covenant in deed, 103. vendee in quitclaim deed, 97. bona fide purchaser from purchaser with notice, 98. of assignment, 244. NUISANCES, injunction against, 301. retaining jurisdiction to award complete relief, 14. o ORDER, on specific fund, as an assignment, 243. OWELTY, of partition, 203. INDEX. 453 TThe figures refer to pages.] P PARENT AND CHILD, contracts between, 150. double provision for child by parent or person in loco parentis, 81. who is person in loco parentis, 63. PARTIES, to trust, 169. to contract, incapacity as ground for refusing specific performance, 271. PARTITION, definition, 259. voluntary partition, 259. compulsory partition at common law, 259. equity jurisdiction, 260. who entitled to partition, 260. possession necessary, 260. what property subject to, 262. sale and division of proceeds, 262. owelty, 263. personal property, 263. PARTNERSHIP, contract to enter into, 269. contribution between partners, 253. injunction against violation of partnership agreement, 312, marshaling between firm and individual creditors, 257. receiver of property of, 332. PART PERFORMANCE, to take contract out of statute of frauds, 280. PASSIVE TRUSTS, cestui que trust's estate, 184. PATENTS FOR INVENTIONS, contracts concerning, specific performance, 267. injunction against infringement, 307. PAYMENTS, application of, 249. by debtor, 249. by creditor, 250. by the law, 251. PENALTIES AND FORFEITURES, equity regards substance rather than form, 23. relief against in equity, 107. -154 INDEX. [The figures refer to pages.] PENALTIES AND FORFEITURES— Cont'd, penalty or liquidated damages, 108. use of terms not controlling, 108. larger sum to secure payment of smaller, 108. lump sum to secure performance of different stipulations some of which are of a trilling nature, 109. of total and partial failure to perform, 109. sum to secure performance of contract where damages cannot be ascertained, 109. sum to secure performance of stipulations of varying importance and: not of a trifling nature, 110. no relief against statutory penalties, 111. forfeiture will not be enforced in equity, 112. relief in case of accident, 118. PERFORMANCE, equity imputes intention to fulfill obligation, 27. by act of covenantor, GO. by operation of law, GO. PERPETUATION OF TESTIMONY, suits for, when permitted, 322. what required to support bill, 323. statutory regulation, 323. PERPETUITIES, restraint on alienation of trust estate, 181. in charitable trusts, 188. PLEDGE, distinguished from chattel mortgage, 227. POSSESSION, as notice, 85. as part performance, 281. POST OBIT BONDS, presumption of fraud, 142. POWERS, mistake in execution of, 130. fraud on, illusory appointment, 161. delegation by trustee, 202. PRECATORY TRUSTS, what are, 175. PRINCIPAL AND AGENT, contracts between, 147. notice to agent, SS. INDEX. 455 [The figures refer to pages.] PRINCIPAL AND SURETY, application of maxim, "equity regards substance rather than form," 24. contribution between sureties, 253. exoneration, right of surety as against principal, 254. relation between grantee of mortgaged land and mortgagor, 219. subrogation of surety to rights of creditor, 255. PRIORITIES, unequal equities, 99. equity founded on valuable consideration, superior to one founded on voluntary transfer, 99. insolvency and fraudulent conveyances, 99. equity to specific thing superior to a general equity, 100. unrecorded mortgage entitled to priority over judgment, 100. unrecorded mortgage not entitled to priority over purchaser at judicial sale, 100. equity of person misled is superior to his who has misled him, 101. application to disputes between owners of equitable interests, 102. application to disputes between owner of legal title and owner of equitable interest, 102. purchaser with notice of an equity takes subject to it, 102. notice of restrictive covenants in deed, 103. equal equities, 103. legal title prevails, 103. time of acquiring legal title, 104. cancellation not granted as against purchaser of legal title with- out notice, 104. equity prior in time prevails, 105. defense of bona fide purchaser does not avail against holder of legal title, 106. between assignees, 245. PROPERTY RIGHTS, equity jurisdiction limited to protection of, 310. PUBLIC OFFICERS, injunctions against violation of duties by, 313. PUBLIC POLICY, assignments void on grounds of. 241. Q QUIA TIMET, see "Cloud on Title." 156 INDEX - [The figures refer tc pages.] QUIETING TITLE, see "Cloud on Title." QUITCLAIM DEED, rights of vendee, 97. R RAILROAD COMPANIES, receivers of, 333. RECEIVERS, definition of, 330. object of receivership, 330. interference with possession of, 330. appointment, 330. to protect estate of person under disability, 332. of partnership, 332. as between tenants in common, 332. of trust estate, 333. of mortgaged premises, 333. of railroads, 333. powers of receivers, 333. receivers' certificates, 21, 334. on dissolution of corporation. 334. at suit of judgment creditor, 335. RECORD, notice by, 90. REDEMPTION, see "Mortgages." REFORMATION, basis of jurisdiction, 314. mistake as ground for, 314. degree of proof required, 315. retaining jurisdiction to award complete relief, 14. RELEASE, execution under mistake, 130. REMEDIES, adequate remedy at law, 10, 10, 116, 290. enlargement of legal, does not dhest equity jurisdiction, 11. see "Accounting"; "Injunction"; "Specific Performance," etc RESCISSION, see "Fraud"; "Cancellation." INDEX. 457 [The figures refer to pages.] RESTRAINT OF TRADE, contracts in, injunction against violation, 293. RESULTING TRUSTS, see "Trusts." S SALE, contracts for sale of chattels, specific performance, 266. SATISFACTION, definition, 58. parol evidence to show intention, 5S. where gift rests in parol, 58. where gift is evidenced by writing, 58. classification, 59. satisfaction of debt by legacy, GO. double provision for child by parent or person in loco parentis, 61. ademption, 61. who is person in loco parentis, 63. presumption in favor of ademption, 64 covenant to make settlement followed by testamentary provision, 65. SAVINGS BANKS. deposits in trust, 177. SHELLEY'S CASE, rule in, interpretation of trusts, 183. SILENCE, when failure to disclose knowledge is fraud, 137. mistake caused by, 126. SPECIFIC PERFORMANCE, definition, 265. inadequacy of damages for breach of contract, test of equity jurisdiction, 265. contracts relating to real estate, 266. contracts for sale of chattels, 266. unique chattels, 266. corporate stocks and governmental securities, 266. patents for inventions, 267. contracts relating to personal acts, 267. hiring and service, 267. personal acts relating to land, 268. continuous duties extending over a long period of time, 268. 458 INDEX. [The figures refer to pages.] SPECIFIC PERFORMANCE— Cont'd, partnership contracts, 2G9. arbitration contracts, 209. awards of arbitrators, 209. contracts to lend or borrow money, 270. Insurance contacts, 270. grounds for refusing relief, 270. defenses having same effect at law and in equity, 271. incapacity of parties, 271. nonconclusion of contract, 271. illegality of contract, 272. defeuses confined to specific performance actions, 272. foundation of, 272. want of mutuality of obligation, 273. optional contracts, 273. contracts not signed by plaintiff, 273. want of fairness, 273. hardship, 274. inadequacy of consideration, 274. defenses producing different result than in common-law action, 275. lapse of time, 275. fraud and mistake, 270. uncertainty and indefiniteness of contract, 2'<6. want of good title, 277. default on plaintiff's part, 278. time not of essence of contract, 278. exceptions, 279. statute of frauds, 280. part performance, 280. acts must refer to contract, 281. possession and improvements, 281. auxiliary and introductory acts, 282. acts capable of being undone, 282. payment of purchase money, 282. marriage, 282. applies only to contracts relating to land, 283. fraud preventing execution of written contract, 283. failure to plead statute, 283. specific performance with a variation, 283. compensation for defects, 283. variance as to time, 284. variation as to subject-matter, 285. INDEX. 45 V [The figures refer to pages.] SPECIFIC PERFORMANCE— Cont'd, at suit of vendor, 2S5. as to quantity, 2S5. as to title, 285. at suit of purchaser, 2S5. total failure of title, 286. parol evidence as to variation, 2S6. in favor of defendant, 287. in favor of plaintiff, 287. by way of injunction, 294. retaining jurisdiction to award complete relief, 14. STATUTE OF FRAUDS, see "Frauds, Statute of." SUBROGATION, when right exists, 254. of surety to rights of creditor, 255. of junior mortgagee to rights of senior mortgagee, 255. of insurance company to rights of iusured, 255. volunteer not entitled to, 255. person guilty of inequitable conduct, 256. T TACKING, of mortgages, 35. TENANCY IN COMMON, lien for improvements. 230. receiver of property of, 332. see, also, "Partition." TESTIMONY, bill to perpetuate, 322. see, also, "Witness, Examination de Bene Esse." TIME, not of essence of contract in equity, 278. variance as to, compensation on granting specific performance of con- tract, 284. TITLE, removing cloud from, 316. variance as to, granting specific performance. 285. total failure of, retaining suit to award compensation, 286. want of, as defense to suit for specific performance, 278. possession of title deeds, notice of mortgage, 85. INDEX. 4b0 [The figures refer to pages.] TOUTS, OQ „ injunction against commission of, 297. TRADE-MARKS, injunction against Infringement, 309. TRESPASS, injunction against, 300. "SJU an intents to MM. obligation, 2a who may be, 170. the sovereign, 170. corporations, 170. married women, 171. infants, 171. aliens, 171. insolvents, 171. equity never wants a trustee, 171. duties and liabilities, 200. carrying out directions in trust instrument. 200. getting in outstanding trust property, 200. custody and care of trust property, 201. duty to exercise ordinary care, 201. delegation of powers, 202. Investments, 203. liability for acts of cotrustee, 204. liability on joint receipt for trust moneys, 205. compensation, 20G. personal liability to cestui que trust, 209. removal, 209. accidental loss of trust estate, relief against, 117. contracts with cestui que trust, 146. between persons in fiduciary relations, 14o. TRUSTS, definition, 163. historical development, 164. origin of uses, 164. reasons for perpetuation, 164. statute of uses. 166. nullification of statute, 167. classification, 168. express private trusts, 169. definition, 169. INDEX. 461 [The figures refer to pages.] TRUSTS— Cont'd, parties, 1G9. the settlor, 169. the trustee, who may be, 170. the cestui que trust, who may be, 17L property subject to trust, 172. creation of trust, 172. effect of statute of frauds, 173. personal property, 173. real property, 173. effect of statute of wills, 173. words essential to create trust, 174. precatory trusts, 175. consideration to support trust, 176. valuable consideration, 176. voluntary settlements, 176. perfect or imperfect creation of trust. 176. where settlor converts himself into a trustee, 177. savings bank deposits, 177. imperfect gifts, 178. where stranger is appointed trustee, 179. trust in legal interest, 179. trust in equitable interest, 179. object proposed by the trust, 179. illegal objects, ISO. placing property beyond reach of creditors of cestui que trust, 180. restraining alienation, 181. accumulation of rents and profits, 1S1. legislation restricting objects for which trusts may be created, 181. interpretation of trusts, 182. executed trusts, 182. executory trusts, 1S2. marriage settlements, 1S3. rule in Shelley's Case, 183. nature of cestui que trust's estate, 184. passive trusts, 184. active trusts, 1S5. assignment for benefit of creditors, 1S5. trust deed, 185. public or charitable trusts, 186. definition, 186. enumeration of objects recognized as charitable, 187. 462 INDEX. [The figures refer to pages.] TRUSTS-Cont'd, distinction between private and charitable trusts, 188. uncertainty of beneficiaries, 188. uncertainty of trustee, 1S8. uncertainty of objects, 188. perpetuities, 188. doctrine of cy pres, 189. charitable trusts in United States, 190. resulting trusts, 191. definition, 191. classification, 191. parting with legal and retaining equitable interest, 191. where intention is expressed, 192. illegal trusts, 192. where intention is presumed, 193. trusts not exhausting whole estate, 193. conveyances without consideration, 193. parol evidence as to intention, 194. % purchase in name of third person, 194. purchase in name of stranger, 194. joint purchase, 195. parol evidence, 195. statutory abolition in some states, 196. purchase in name of near relative, 197. constructive trusts, 198. definition, 198. fraud as basis of, 198. remedies of cestui que trust, 207. following trust estate, 207. into hands of stranger, 208. in changed form, 208. personal remedies, 209. removal of trustee, 209. receiver of trust estate, 333. protection by injunction, 312. USES, see "Trusts." u USURY. cancellation of contract for. he who seeks equity must do equity, 37. INDEX. 463 [The figures refer to pages.] VENDOR AND PURCHASER, contract for sale of land, conversion, 69. equity looks on that as done which ought to be done, 26. transfer of mortgaged land, 219. vendor's lien, 231. vendee's lien, 236. see, also, "Bona Fide Purchaser"; "Notice": "Priorities"; "Specific Performance." VOLUNTARY CONVEYANCES, between persons in fiduciary relations, 151. when voluntary settlement upheld in the form of a trust, 176. W WASTE, Injunction against commission of, 299. WATER RIGHTS, protection by injunction, 304. WILLS, charges of debts and legacies on real estate. 230. no relief on ground of mistake, 12S. marshaling as between devisees and legatees, 257. statute of, effect on trusts, 173. see, also, "Conversion"; "Election"; "Satisfaction/ WITNESS, EXAMINATION DE BENE ESSE, when right exists, 324. WEST PUBLISHING GO., PRINTERS AND 8TEREOTYPER8, ST. PAUL, MINN £0e $)orn6ooft Juries* 0649 1 This series is to comprise elementary treatises on all the principal subjects of the law. The books are made on the same general plan, in which certain special and original features are made prominent These are: i. A brief analytical presentation of the principles and rules of the subject This part is distinguished typographically by being printed in large black type, and these black-letter paragraphs, running through the book, constitute a complete, though concise, synopsis of the law of the subject. Like the syllabus of a case, this affords a bird's-eye view of the whole and its parts, and will be found useful by the lawyer who wishes to refresh his memory of the outlines of this branch of the law. 2. A Commentary, being a more extended presentation of the top- ics in the leading analysis, distinguished by being set in different type. The typographical separation of these two parts enables the examiner to obtain, in the first place, a general, comprehensive grasp of the sub- ject as a whole, and of the relation of one part to another, and, by re- reading in connection with the more extended commentary, to fix the (details clearly in mind. 3. Notes, in still different type, containing a copious citation of Authorities, including the leading and most important cases. These re so distinguished as to still further illustrate the principles. PRICE, $3.75 PER VOLUME, INCLUDING DELIVERY. VEST PUBLISHING CO., St. Paul, Minn. (i) <£0e 2)orn0oofi JJerie*.) Z$t £an> of Q^iffe an*> (Tlofe*, ©2 (prof. Cfarfee (p. QXorfcm. THIRD EDITION. TABLE OF CONTENTS. Chapter I. OF NEGOTIABILITY SO FAR AS IT RE- LATES TO BILLS AND NOTES : Cover- ing the origin, purpose, and indicia of nego- tiability, distinction between negotiability and assignability, and payment by negotia- ble instrument. Chapter II. OF NEGOTIABLE BILLS AND NOTES, AND THEIR FORMAL AND ESSEN- TIAL REQUISITES : Covering definition, form, and essentials, the order, the promise, specification of parties, capacity of parties, delivery, date, value received, and days of grace. Chapter III. ACCEPTANCE OF BILLS OF EXCHANGE : Covering the various kinds of acceptance, and the rules relating thereto. Chapter IV. INDORSEMENT : Defining and explaining the various kinds of indorsements, and showing their requisites and effect. Chapter V. OF THE NATURE OF THE LIABILITIES OF THE PARTIES : Covering liability of maker, acceptor, drawer, indorser, rights and liabilities of accommodation and accommo- dated parties, estoppel and warranties, and damages for breach. Chapter VT. TRANSFER : Covering definition, validity, and various methods of transfer, and status of overdue paper. Chapter VII. DEFENSES AS AGAINST PURCHASER FOR VALUE WITHOUT NOTICE : Cov- ering the subject generally and fully. Chapter VIII. THE PURCHASER FOR VALUE WITH- OUT NOTICE: Explaining who is, and discussing consideration, good faith, notice, overdue paper, presumption, and burden of proof, etc. Chapter IX. OF PRESENTMENT AND NOTICE OF DIS- HONOR : Covering presentment for accept- ance and for payment, dishonor, protest, no- tice of dishonor, waiver, etc CHECKS to checks Chapter X. Covering generally the law relating APPENDIX : Law. The Negotiable Instruments 1 VOL. 553 PAGES $3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. C646ooft of Criminal & f Author of a "Handbook of the Law of Contracts. TABLE OF CONTENTS. CHAPTER I. DEFINITION OF CRIME : The nature of crime and ground of punishment. CHAPTER II. CRIMINAL LAW : How the criminal law is pre- scribed; the common law: statutes, and the powers of state and federal legislatures. CHAPTER III. CLASSIFICATION OP CRIMES: As treason, fel- onies, misdemeanors, etc. ; merger of offenses. CHAPTER IV. THE MENTAL ELEMENT IN CRIME: Con- sidering the will, intention, motive, and crim- inal intention or malice. CHAPTER V. PERSONS CAPABLE OF COMMUTING CRIME: Covering also exemption from responsibility, and discussing infancy, insanity, drunkenness, ignorance or mistake of law or of fact, provo- cation, necessity and compulsion, married wo- men and corporations. CHAPTER VI. PARTIES CONCERNED: Covering effect of joining in criminal purpose, principles in first and second degrees, accessories before and after the fact, terms " aider and abettor ■ and " accomplice. " CHAPTER VII. THE OVERT ACT: Covering also attempts, so- licitation and conspiracy. CHAPTER VIII. OFFENSES AGAINST THE PERSON: Cover- ing homicide, murder, and manslaughter, with consideration of the different degrees, acci- dent, self-defense, etc CHAPTER IX. OFFENSES AGAINST THE PERSON (Contin- ued) : Covering abortion, mayhem, rape, sod- omy, seduction, assaults, false imprisonment, kidnapping, abduction. CHAPTER X. OFFENSES AGAINST THE HABITATION: Covering arson and burglary. CHAPTER XI. OFFENSES AGAINST PROPERTY: Covering larceny, embezzlement, cheating at common law and by false pretenses, robbery, receiving stolen goods, malicious mischief, forgery, etc. CHAPTER XII. OFFENSES AGAINST THE PUBLIC HEALTH, MORALS, ETC. : Covering nuisances In gen- eral, bigamy, polygamy, adultery, fornication, lewdness, eta CHAPTER XIIL OFFENSES AGAINST PUBLIC JUSTICE AND AUTHORITY: Covering barretry, obstruct- ing justice, embracery, prison breach, mispri- sion of fe'iony, compounding crime, perjury, bribery, misconduct in office, eta CHAPTER XIV. OFFENSES AGAINST THE PUBLIC PEACE: Covering dueling, unlawful assembly, riot, affray, forcible entry and detainer, libels on private persons, etc. CHAPTER XV. OFFENSES AGAINST THE GOVERNMENT: Covering treason and misprision of treason. CHAPTER XVI. OFFENSES AGAINST THE LAW OF NA- TIONS: As piracy. CHAPTER XVII. JURISDICTION: Covering territorial limits of states and United States, jurisdiction as deter- mined by locality, federal courts and the com- mon law, jurisdiction conferred by congress, persons subject to our laws, eta CHAPTER XVIII. FORMER JEOPARDY: In general. 1 VOL. 450 PAGES. $3.75 DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. (3) (tfr l>ornfiooft ^ertee.) (# ;§)anb0oo& ° £0e San) of Contv @g TTm. fe. Cfata, 3r., Author of a " Handbook of Criminal Law." CHAPTER I. CONTRACT IN GENERAL: Covering its defi- nition, nature, and requisites, and discussing agreement, obligation, promise, void, voidable, and unenforceable agreements, and the essen- tials of contract, etc. CHAPTER n. OFFER AND ACCEPTANCE: Covering im- plied contracts, necessity for communication and acceptance, character, mode, place, time, and effect of acceptance, revocation, and lapse of offer, etc. CHAPTER in. CLASSIFICATION OF CONTRACTS: Cover- ing contracts of record and contracts under seal, and their characteristics. CHAPTER IV. REQUIREMENT OF WRITING: Covering also statute of frauds, and discussing promise by executor, promise to answer for another, agreements in consideration of marriage and In relation to land, and agreements not to be performed within a year, sufficiency of memo- randum, etc. CHAPTER V. CONSIDERATION : Covering the necessity for consideration, its adequacy, reality, and legal- ity, failure of consideration, etc. CHAPTER VI. CAPACITY OF PARTIES: Covering political and professional status, infants, insane and drunken persons, married women, and corpo- ration*. CHAPTER Vn. REALITY OF CONSENT: Covering mistake, misrepresentation, fraud, duress, and undue influence. CHAPTER VIII. LEGALITY OF OBJECT: Covering unlawful agreements in general, agreements in viola- tion of positive law and those contrary to pub- lic policy, effect of illegality, conflict of laws, etc CHAPTER IX. OPERATION OF CONTRACT: Covering the limits of the contractual relation, assignment of contracts, whether by act of parties or by operation of law, joint and several contracts, etc CHAPTER X. INTERPRETATION OF CONTRACT: Cover- ing the rules relating to evidence, proof of document, rules of construction, penalties and liquidated damages, etc. CHAPTER XI. DISCHARGE OF CONTRACT: Covering dis- charge by agreement, by performance, by breach, by impossibility of performance, by operation of law, etc., and remedies on breach of contract. CHAPTER XII. AGENCY: Covering the creation of the relation, its effect and determination, the capacity, rights, and liabilities of the parties, etc CHAPTER Xin. QUASI CONTRACT: Covering obligations cre- ated by law upon which an action ex contractu will lie without proof of contract in fact, in- cluding judgments, obligations imposed by statute, acts of parties, etc. 1 VOL., 932 PAGES, $3.75 DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. (4) (£0e gorn6oc6 Retries. ) $ ganbBooft of Common* Saw (J)feafcin<$* QBg (genjamin 3. £$tpman. SECOND EDITION. TABLE OF CONTENTS. Chapter I. FORMS OP ACTION : Covering the nature and classification of actions, real, personal, and mixed actions, assumpsit, special and general, debt, covenant, account or account rendered. Chapter II. FORMS OF ACTION (Continued): Covering trespass, trover, case, detinue, replevin, eject- ment, writ of entry, forcible entry and detain- er, etc. Chapter III. THE PARTIES TO ACTIONS: Covering actions in form ex contractu and ex delicto, and the consequences of misjoinder or nonjoinder of parties plaintiff or defendant. Chapter IV. THE PROCEEDINGS IN AN ACTION: Cover- ing process, the summons, writ of attachment, appearance, the declaration, demurrer, and va- rious pleas, amendments, etc., the verdict, and proceedings after the verdict, the judgment, and proceedings thereafter to the writ of exe- cution. Chapter V. THE DECLARATION: Statement of cause of action In general; form of declaration; es- sential averments of declaration in special as- sumpsit or on common counts, in debt, cove- nant, account, case, detinue, trover, trespass, replevin, ejectment, and trespass for mesne profits after ejectment. Chapter VI. THE PRODUCTION OF THE ISSUE: Discuss- ing the rules, and covering the demurrer, the pleadings, the traverse, forms of the general issue and of the special traverse, protesta- tions, exceptions, issues in fact and law, etc. Chapter VH. MATERIALITY IN PLEADING: Covering tb« general rule, variance, limitation of traverse, etc. Chapter VIII. SINGLENESS OR UNITY IN PLEADING: Cov- ering the rules in general, duplicity, Immate- rial matter, inducement, protestation, conse- quences of duplicity and of misjoinder, plea and demurrer, etc. Chapter IX. CERTAINTY IN PLEADING: Covering the venue, time, quantity, quality, and value, names of persons, showing title and author- ity, with subordinate rules, and special re- quirements in different stages. Chapter X. CONSISTENCY AND SIMPLICITY IN PLEAD- ING : Covering insensibility, repugnancy, am- biguity, argumentative pleadings, pleadings in alternative, positive statements, legal effect, conformance to precedent, commencement and conclusion. Chapter XL DIRECTNESS AND BREVITY IN PLEADING: Covering the rules generally, departure, pleas amounting to general issue, surplusage, eta Chapter XII. MISCELLANEOUS RULES: Covering con- formance to process, alleging damages and production of suit, order of pleading, defense, plea in abatement, dilatory pleas, etc. APPENDIX: Forms. This book embodies such of the rules and principles of Common-Law Pleading as are stfll recognized and applied in this country. A knowledge of the common-law system is of advantage, it indeed, it is not essential, to a thorough understanding of both code and equity pleading. ONE VOLUME, 615 PAGES, $3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. (5) (Z$t ^ornBooS JJerieg.) JJeconb (Ebtfton. TABLE OF CONTENTS. Author of Black's Law Dictionary, Treatises on Judgments, Tax Titles, etc* Chapter I. DEFINITIONS AND GENERAL PRINCIPLES: Considering the meaning of "Constitutional" and "Unconstitutional; " written and unwrit- ten constitutions, bills of rights, right of revo- lution, political and personal responsibilities, etc. Chapter II. THE UNITED STATES AND THE STATES: Considering the nature of the American Union, sovereignty and rights of the states and of the people, form of government, the Federal Constitution, etc. Chapter III. ESTABLISHMENT AND AMENDMENT OF CONSTITUTIONS: Containing an historical introduction, and considering the establish- ment and amendment of the Federal Constitu- tion and of State Constitutions. Chapter IV. CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS: Considering the office and duty of the judiciary in this direction. Chapter V. THE THREE DEPARTMENTS OF GOVERN- MENT: Considering the division, limitations on the departments, political and judicial questions, etc Chapter VI. THE FEDERAL EXECUTIVE: Considering the election, qualifications, impeachment, compensation and independence of the Presi- dent, his oath of office, veto power, pardoning »nd military power, and treaty-making power • vacancy in office! the cabinet, appointments to office, presidential messages, diplomatic re- lations, authority to convene and adjourn con- gress, execute the laws, etc. Chapter VII. FEDERAL JURISDICTION: Considering the jurisdiction, powers and procedure of Federal courts, removal of causes, the United States and the states as parties, etc Chapter VIII. THE POWERS OF CONGRESS: Considering the constitution, organization and government of congress, its powers, and the limitations thereon. Chapter IX. INTERSTATE LAW, as determined by the Con- stitution : Considering its general principles, the privileges of citizens, interstate extradi- tion, public acts and judicial proceedings, etc Chapter X. EEPUBLICAN GOVERNMENT GUARANTIED. Chapter XI. EXECUTIVE PO W ER IN THE 8TATE& Chapter XII. JUDICIAL POWERS IN THE STATES: Con- sidering the system of courts, judges, juris- diction, process and procedure. Chapter XIII. LEGISLATIVE POWER IN THE STATES : Con- sidering the organization and government of legislature, limitation and delegation of legis- lative powers, enactment of laws, etc Chapter XIV. THE POLICE POWER: Considering the police power as vested in congress and in the states, and its scope and limitations. Chapter XV. THE POWER OF TAXATION: Considering the purposes of taxation, independence of Federal and State governments, limitations on power, taxation and representation, etc Chapter XVI. THE RIGHT OF EMINENT DOMAIN: Defini- tion and nature of the power, constitutional provisions, authority to exercise, public pur- pose, appropriation to new uses, etc Chapter XVII. MUNICIPAL CORPORATIONS: The nature, control, powers, officers and by-laws of mu- nicipal corporations, etc Chapter XVIII. CIVIL RIGHTS, AND THEIR PROTECTION BY THE CONSTITUTION: Considering rights in general, liberty, due process of law, vested rights, trial by jury, etc Chapter XIX. POLITICAL AND PUBLIC RIGHTS: Consider- ing citizenship, right of suffrage, freedom of Bpeech, right of assembly and petition, etc Chapter XX. CONSTITUTIONAL GUARANTIES IN CRIM- 1 INAL CASES: Considering trial by jury, rights of accused, jeopardy, bail, ex post facto laws, habeas corpus, etc Chapter XXI. LAWS IMPAIRING THE OBLIGATION OF CONTRACTS: Considering the obligation and the impairment of the contract, power of legislature to contract, remedies on contracts. Chapter XXII. RETROACTIVE LAWS: Considering the validity of retroactive statutes, curative statutes, etc 1 VOL., 740 PAGES, $3.75, DELIVERED. WEST PUBLISHING COR C1596 (6) PANY, St. Paul, Minn. (£0e S>orn6oo8 Juries.) (# f)cmb0ooft °f <&<\uity jurisprudence Q0g Qtorman <$efter. TABLE OF CONTENTS. Chapter I. 1CATURB AND DEFINITION OP EQUITY. Chapter H. PRINCIPLES DEFINING AND LIMITING JU- RISDICTION: Considering jurisdiction over crimes, adequate legal remedy, complete re- lief, and multiplicity of suits. Chapter ITL THE MAXIMS OP EQUITY: Definition and classification of maxims; the enabling and re- strictive maxims. Chapter IV. THE DOCTRINES OP EQUITY: Considering estoppel, election, satisfaction, performance, and conversion. Chapter V. THE DOCTRINES OP EQUITY (Continued) : Considering conflicting rights of purchasers, assignees, notice, bona fide purchasers, priori- ties, etc. Chapter VI. THE DOCTRINES OP EQUITY (Continued) : Considering penalties and forfeitures, liqui- dated damages. Chapter VII. GROUNDS FOR EQUITABLE RELD3F: •idering accident, mistake, fraud, etc. Con- Chapter VITI. PROPERTY IN EQUITY— T.RUSTS: Covering definition, history, and classification of trusts, charitable trusts, duties and liabilities of trus- tees, remedies of cestui que trust, etc. Chapter IX. PROPERTY IN EQUITY — MORTGAGES, LIENS, AND ASSIGNMENTS. Chapter X. EQUITABLE REMEDIES : Covering accounting, contribution, exoneration, subrogation, and marshaling. Chapter XI. EQUITABLE REMEDIES (Continued): Cov- ering partition and settlement of boundaries. Chapter XII. EQUITABLE REMEDIES (Continued): Cov- ering specific performance, and considering enforceable contracts, grounds for refusing re- lief, etc. Chapter XIII. EQUITABLE REMEDIES (Continued): Cov- ering injunctions, and considering their juris- dictional principles, classes of cases where remedy may be used, etc. Chapter XIV. REFORMATION, CANCELLATION, AND QUIETING TITLE. Chapter XV. ANCILLARY REMEDIES : Covering discovery, bills to perpetuate testimony, interpleader, receivers, etc. I VOL., 474 PAGES, $3. 75. DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. CD (20e f)orn6ooft Juries.) $ ganbBoolt of Criminal (procedure* (gufflor of a "fjanofiooft cf Crimmaf £at»," ant) a "^ancfiooft of Contract©." TABLE OF CONTENTS. Chapter I. JURISDICTION: Covering courts of criminal ju- risdiction and venue. Chapter II. APPREHENSION OF PERSONS AND PROP- ERTY : Covering arrest in general, warrants, extradition, searches and seizures of property, and taking property from prisoner. Chapter IH. PRELIMINARY EXAMINATION, BAIL. AND COMMITMENT: Covering right to release on bail, habeas corpus, the recognizance, release of sureties, etc. Chapter IV. MODE OF ACCUSATION: Covering the indict- ment and presentment, information, coroner's inquisition, time of prosecution, and nolle prosequi, etc. Chapter V. PLEADING — THE ACCUSATION: Covering form of indictment in general, the commence- ment, and the statement of often se and descrip- tion of defendant. Chapter VI. PLEADING— THE ACCUSATION (Continued): Covering allegation of intent, knowledge, etc. ; technical terms ; second or third offense; set- ting forth writings; description of property and persons; ownership. Chapter VH. PLEADING— THE ACCUSATION (Continued): Covering statement of time and place. Chapter VIH. PLEADING— THE ACCUSATION (Continned)t Covering indictments on statutes. Chapter IX. PLEADING— THE ACCUSATION (Continued): Covering duplicity, joinder of counts and par- ties, election, conclusion of indictment, amend- ment, aider by verdict, etc Chapter X. PLEADING AND PROOF: Covering variance and conviction of minor and higher offense. Chapter XI. MOTION TO QUASH: Covering also arraign- ment, demurrer, and pleas of defendant. Chapter XII. TRIAL AND VERDICT: Covering time and place of trial, custody and presence of defendant, bill of particulars, the counsel, judge and jury, arguments and instructions, etc. Chapter XIH. PROCEEDINGS AFTER VERDICT: Covering motion in arrest of judgment, sentence, new trial, writ of error, etc. Chapter XIV. EVIDENCE: Covering facts in issue, motive, res gestae, other crimes, declarations, confes- sions, character, burden of proof, witnesses, etc. Chapter XV. HABEAS CORPUS. I VOL. 658 PACES. $3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. (8) tXft jE)orn8ooft ^criea. ♦ ♦ ♦ dCV ♦ ♦ ♦ anfcBooft of f 0e £an> of Jkfe* (gg frdncw (g. tiffany (&. (g„ £&. (g. (Jgamrb). Author of "Tiffany on Death by Wrongful Act" TABLE OF CONTENTS. Chapter I. FORMATION OF THE CONTRACT: Covering the capacity of parties, who may sell, the thing sold, mutual assent, form, and price. Chapter H. FORMATION OP THE CONTRACT (Continued) : Covering the statute of frauds. Chapter ITT. EFFECT OF THE CONTRACT IN PASSING THE PROPERTY: Covering sales of specific chattels, — unconditional sales, conditional sales, sale on trial or approval, and sale or return. Chapter IV. EFFECT OF THE CONTRACT IN PASSING THE PROPERTY (Continued) : Covering sales of chattels not specific, appropriation of property to the contract, reservation of right of disposal, etc. Chapter V. MISTAKE, FAILURE OF CONSIDERATION, AND FRAUD : Showing the effect of mistake, failure of consideration, and fraud generally, frauds on creditors, the delivery necessary as against creditors and purchasers, etc. Chapter VX. ILLEGALITY: Covering sales prohibited by the common law, by publlo policy, and by statute; the effect of illegality, and the confliot of laws. Chapter VH. CONDITIONS AND WARRANTIES: Covering conditions and war ranties generally. Chapter VIII. PERFORMANCE: Covering fully delivery, the buyer's right of examination, acceptance, and payment* Chapter IX. RIGHTS OF UNPAID SELLER AGAINST THB GOODS: Covering the seller's lien, stoppage in transitu, and the right of resale. Chapter X. ACTION FOR BREACH OF THE CONTRACT: Covering the various remedies of the seller and of the buyer. I Volume. 356 Pages. $3.75, Delivered. WEST PUBLISHING CO., St. Paul, Minn. (9) ( ^crnfiocfi juries.) g f an^ooa of Jnfernaftonaf £an>, q|5p Capk d5bttrin ^ (Btfettn, uSstiS,^ TABLE OF CONTENTS. INTRODUCTION. Covering the definition, source, and nature of In- ternational Law. Chapter I. PERSONS EN INTERNATIONAL LAW: Cov- ering states, their loss of identity, various unions of states, de facto states, belligerency and recog- nition thereof, and equality of states. Chapter EL THE COMMENCEMENT OF STATES— FUNDA- MENTAL RIGHTS AND DUTIES: Covering the commencement and recognition of new states, effect of change of sovereignty, the fun- damental right* and duties of states, etc Chapter III. TERRITORIAL PROPERTY OF A STATE: Covering modes of acquiring property, boun- daries, territorial waters, etc. Chapter IV. TERRITORIAL JURISDICTION: Covering ex- territoriality, sovereigns and diplomatic agents and their immunities, vessels, right of asylum, alienage, responsibility for mob violence, extra- dition, jurisdiction beyond state limits, etc Chapter V. JURISDICTION ON THE HIGH SEAS AND UNOCCUPIED PLACES: Covering nature of jurisdiction, jurisdiction over merchant ships, piracy, privateers, letters of marque, slave trade, eta Chapter VI. THE AGENTS OF A STATE IN INTERNA- TIONAL RELATIONS: Covering public diplo- matic agents and consuls, and matters relating to them. Chapter VH. INTERVENTION: Covering the subject gener- ally. Chapter VIIL NATIONALITY: Covering citizenship, allegi- ance, expatriation, naturalization, etc TREATIES! Chapter IX. Covering the subject generally. Chapter X. AMICABLE SETTLEMENT OF DISPUTES: Covering mediation, arbitration, retorsion, re- prisals, embargo, pacific blockade, etc Chapter XL INTERNATIONAL RELATIONS IN WAR: Covering the subject of war generally, includ- ing the kinds, causes, and objects of war. Chapter XII. EFFECTS OF WAR— AS TO PERSONS: Cov- ering the relations of enemies., noncombatants, privateers, prisoners of war, and the subjects of ransom, parole, etc Chapter XIII. EFFECTS OF WAR — AS TO PROPERTY: Covering contributions, requisitions, foraging, booty, ransom, and other questions in regard to property. Chapter XIV. POSTLIMINIUM: The right and Its limitations defined and explained. Chapter XV. MILITARY OCCUPATION: Covering the defi- nition, extent, and effect of occupation, and the duties of an occupant. Chapter XVL MEANS OF CARRYING ON HOSTILITIES: Covering the instruments and means of war, spies, etc. Chapter XVTL ENEMY CHARACTER: Covering enemies gen- erally, domicile, house* of trade, property and transfer thereof, etc. Chapter XV ILL NON-HOSTILE RELATIONS: Covering oom- mercia belli, flags of truce, passports, safe-con- ducts, truces or armistices, cartels, etc Chapter XIX. TERMINATION OF WAR: Covering the meth- ods of termination, uti possidetis, treaties of peace, conquest, etc. Chapter XX. OF NEUTRALITY IN GENERAL: Neutrality defined and explained. Chapter XXL, THE LAW OF NEUTRALITY BETWEEN BEL- LIGERENT AND NEUTRAL STATES: Cov- ering the rights, duties, and liabilities of neutral states. Chapter XXIL CONTRABAND : Covering the subject generally. Chapter XXIII. BLOCKADE: Covering the subject generally. Chapter XXIV. VISIT AND SEARCH, AND RIGHT OF AN- GARY : Covering those subjects generally. APPENDIX. Giving in f uR, as in no other single work, the In- structions for the Government of Armies of the United States in the Field (Lieber) ; Papers Car- ried, or that Ought to be Carried, by Vessels in Evidence of their Nationality; The Declaration of Paris; The Declaration of St. Petersburg; The Geneva Convention for the Amelioration of the Condition of the Sick and Wounded of Ar- mies in the Field ; The Laws of War on Land, (Recommended for Adoption by the Institute of International Law at Oxford, Sept 8, 1880) ; and The Brussels Conference. 1 VOLUME. 500 PAGES. $3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. (10) (C0e jgornBooft ^ertes.) $ gcmfcflooft of Z$t £an> of £orte* (Efcwfn $. Siiggdrb, $.. (Jft., ££,. (g., Professor of the Law of Torts in the Minnesota University Law School. TABLE OF CONTENTS. PART I.— IN GENERAL. Chapter I. GENERAL NATURE OP TORTS: Covering the law adjective and law substantive, distinctions between torts and crimes, common-law obliga- tions and remedies, how and why liability at- taches for torts, the mental element, connec- tion as cause, damnum and injuria, common- law, contract and statutory duties, etc. Chapter II. VARIATIONS IN THE NORMAL RIGHT TO TO SUE: Covering exemptions based on privilege of actor, as public acts of states, of judicial and executive officers, etc., and private acts authorized by statute or common law, variations based on status or conduct of plain- tiff, etc Chapter III. LIABILITY FOR TORTS COMMITTED BY OR WITH OTHERS: Covering liability by con- cert in action or joint torts, and liability by relationship, as husband and wife, landlord and tenant, master and servant, partners, etc. Chapter IV. DISCHARGE AND LIMITATION OP LIABILI- ITY FOR TORTS: Covering discharge or limitation by voluntary act of party and by operation of law. Chapter V. REMEDIES: Covering statutory and common- law remedies, judicial and extrajudicial reme- dies, damages, etc. PART II.— SPECIFIC "WRONGS. Chapter VI. WRONGS AFFECTING SAFETY AND FREE- DOM OF PERSONS: Covering false impris- onment, assault and battery, and the defenses, as justification and mitigation. Chapter VH. INJURIES IN FAMILY RELATIONS: Corer- ing the family at common law, master and servant, parent and child, husband and wife. Chapter VIII. WRONGS AFFECTING REPUTATION: Cover- ing libel, slander, and slander of title, together with the defenses. Chapter IX. MALICIOUS WRONGS: Covering deceit, mali- cious prosecution, abuse of process, interfer- ence with contract, conspiracy, etc. Chapter X. WRONGS TO POSSESSION AND PROPERTY.- Covering the nature of possession and its ob- jects, trespass, waste, conversion, etc Chapter XI. NUISANCE: Covering kinds of nuisance, as pub- lic, private, and mixed, continuing and legal- ized, parties to proceedings against, remedies, etc. Chapter XII. NEGLIGENCE: Covering the duty to exercise care, what is commensurate care, common-law, contract and statutory duties, damages, con- tributory negligence, etc. Chapter XIII. MASTER AND SERVANT: Covering master's liability to servant for negligence, master's duty to servant, assumption of risk by serv- ant, various kinds of risks, fellow servants, vice principals, etc Chapter XIV. COMMON CARRIERS: Covering the subject generally. 2 VOLS. 1,328 PAGES. $7.50, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. (id £0e 2)orn6oo8 J$erie0. Qfc 3E)at*6oo6 of ... . ^nferprefafton of Eau>0 t Dw Ul rAn/IDDCI I I Dl Ani^ AUTHOR OF BLACK'S LAW DICTIONARY. AND TREA- DY Pi. ^•Mlvlr^DtL-Ll- DL_A\^rv, tises on constitutional law. judgments, etc. TABLE OF CONTENTS. Chapter I. NATURE AND OFFICE OF INTERPRE- TATION: Covering definition of terms, ob- ject of interpretation, rules of construction, and office of judiciary. Chapter II. CONSTRUCTION OF CONSTITUTIONS: Covering method and rules of construction, construction as a whole, common law and pre- vious legislation, retrospective operation, man- datory and directory provisions, preamble and titles, extraneous aids, schedule, stare decisis, etc. Chapter III. GENERAL PRINCIPLES OF STATUTORY CONSTRUCTION: Covering literal and eq- uitable construction, scope and purpose of the act, casus omissus, implications in statutes, meaningless statutes, errors, misprints, sur- plusage, interpolation of words, etc. Chapter IV. STATUTORY CONSTRUCTION; PRE- SUMPTIONS: Covering presumptions against exceeding limitations of legislative power, un- constitutionality, injustice, irrepealable laws, implied repeal of laws, etc., presumptions as to public policy, as to jurisdiction of courts, etc Chapter V. STATUTORY CONSTRUCTION; WORDS AND PHRASES. Covering technical and popular meaning of words, commercial and trade, general and special, relative and qual- ifying, and permissive and mandatory terms; conjunctive and disjunctive particles, adopted and re-enacted statutes, computation of time, etc. Chapter VI. INTRINSIC AIDS IN STATUTORY CON- STRUCTION: Covering construction as a whole, context, title, preamble, interpretation clause, etc. Chapter VH. EXTRINSIC AIDS IN STATUTORY CON- STRUCTION: Covering admissibility of ex- trinsic aids, statutes in pari materia, con- temporary history, construction and usage, journals of legislature, opinions of legislators. etc. Chapter VIII. INTERPRETATION WITH REFERENCE TO COMMON LAW: Covering statutes af- firming^ supplementing, superseding or in derogation of, common law. Chapter IX. RETROSPECTIVE INTERPRETATION: Covering definition, constitutional considera- tions, vested rights, remedial statutes, and statutes regulating procedure. Chapter X. CONSTRUCTION OF PROVISOS, EXCEP- TIONS, AND SAVING CLAUSES: Cov- ering the subject generally. Chapter XL STRICT AND LIBERAL CONSTRUCTION: Covering penal and remedial statutes, stat- utes against common right, against frauds, and of limitation, legislative grants, revenue and tax laws, etc Chapter XII. MANDATORY AND DIRECTORY PROVI- SIONS: Definitions and rules covering the subject generally. Chapter XIII. AMENDATORY AND AMENDED ACTS: Covering construction of amendments and of statute as amended, identification of act to be amended, amendment by way of revision, etc. Chapter XIV. CONSTRUCTION OF CODES AND RE- VISED STATUTES: Covering construction as a whole, reference to original statutes, change of language, previous judicial construc- tion, etc. Chapter XV. DECLARATORY STATUTES: Covering defi- nition and construction in general. Chapter XVI. THE RULE OF STARE DECISIS AS AP- PLIED TO STATUTORY CONSTRUC- TION: Covering the general principle, re- versal of construction, federal courts follow- ing state decisions, construction of statutes of other states, etc. Chapter XVII. INTERPRETATION OF JUDICIAL DECI- SIONS AND THE DOCTRINE OF PREC- EDENTS: Covering the nature of prece- dents; dicta; stare decisis; the force of prece- dents as between different courts; the law of the case, etc 1 VOLUME. 509 PAGES. WEST PUBLISHING CO.. « C775 (12) S3. 75. DELIVERED. St. Paul, Minn. (£0e |E)om6oo{i ^crtec.) Q5aifmen(0 anb Carriers* qgfj T&m. Qg>. f afc. TABLE OF CONTENTS. Chapter I. IN GENERAL: Covering definition and gen- eral principles common to all bailments; classification of bailments. Chapter II. BAILMENTS FOR SOLE BENEFIT OF BAILOR: Covering depositum and man- datum, creation, rights and liabilities of parties, termination, etc. Chapter III. BAILMENTS FOR BAILEE'S SOLE BEN- EFIT: Commodatum, creation, rights and liabilities of parties, termination, etc. Chapter IV. BAILMENTS FOR MUTUAL BENEFIT- PLEDGES: Covering definition of pledge, creation, title of pledgor, rights and liabil- ities of parties before and after default, ter- mination, etc. Chapter V. BAILMENTS FOR MUTUAL BENEFIT- HIRING: Locatio or hiring defined: estab- lishment of relation; rights and liabilities of parties; hiring of things for use; hire of labor and services; warehousemen; wharf- ingers; safe-deposit companies; factors, etc.; termination of relation, etc Chapter VT. INNKEEPERS: Innkeeper defined; who are guests; commencement of relation; duty to receive guest; liability for guests' goods; lien; termination of relation; liability as ordinary bailee, etc. Chapter VII. CARRIERS OF GOODS: Common carriers, essential characteristics; when liability at- taches; discrimination; compensation; lien; liability as insurers and as ordinary bailees; carriers of live stock; carriers of baggage; contracts and notices limiting liability; ter- mination of liability; connecting carriers, etc.; post-office department; private car- riers. Chapter VIII. CARRIERS OF PASSENGERS: Who are passengers; when liability attaches; duty to accept passengers; furnishing equal ac- commodations; ticket as evidence of pas- senger's rights; right to make regulations; injuries to passengers; contracts limiting liability; termination of liability; ejection fr>>m vehicle: connecting carriers, and cov- ering the subject generally. Chapter IX. ACTIONS AGAINST CARRIERS: Actions against carriers of goods and carriers of passengers; parties: form of action; plead- ing; evidence; damages. 1 VOLUME. 675 PAGES. $3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn, C995 (13) £0e f>orn6oo8 JJerieg.) ♦ ♦(*>♦♦ 2E>atrt>6ooft sf <&fcmtnt, QBg Wdffer ©enfon £mtt& Instructor in the Law Department of the University of Michigan. TABLE OF CONTENTS. Part I -ELEMENTARY JURISPRUDENCE. CHAPTER X. NATURE OP LAW AND THE VARIOUS SYSTEMS: Moral, divine, municipal. International, mari- time and martial law. CHAPTER H. GOVERNMENT AND ITS FUNCTIONS: Covering sovereignty, the state, the constitution, and the forma and functions of government generally. CHAPTER HX GOVERNMENT IN THE UNITED STATES: Ita general character, sovereignty, distribution of powers, citizenship, etc. CHAPTER IV. THE UNWRITTEN LAW: The Roman, the Canon and the Common law. CHAPTER V. EQUITY: Nature and Jurisdiction of equity; max- ims. CHAPTER VI. THE WRITTEN LAW: Relation to unwritten law; statutory law In general. CHAPTER VTL THE AUTHORITIES AND THEIR INTERPRETA- TION: The rank of authorities, rules of inter- pretation, statutory construction, etc. CHAPTER VHI. PERSONS AND PERSONAL. RIGHTS: Legal rights, wrongs and remedies, rights in rem and in personam, status, personal security, liberty, property, constitutional guaranties, etc CHAPTER IX. PROPERTY: Covering, ownership and possession; the Feudal system; corporeal and incorporeal, real and personal, property; fixtures, etc CHAPTER X. CLASSIFICATION OF THE LAW: Substantive and adjective, public and private law, etc Part SI— THE SUBSTANTIVE LAW. CHAPTER XL CONSTITUTIONAL AND ADMINISTRATIVE LAW: Written and unwritten constitutions, essentials and construction of constitutions; administra- tive law. etc. CHAPTER XIX CRIMINAL LAW: Covering its general nature, criminal capacity, classification of crimes, pun- ishment, etc CHAPTER XHX THE LAW OF DOMESTIC RELATIONS: Cover- ing marriage and Its Incidents, parent and child, guardian and ward, master and servant, etc CHAPTER XTV. CORPOREAL AND INCORPOREAL HEREDITA- MENTS: Covering the subject generally. CHAPTER XV. ESTATES IN REAL PROPERTY: Classification, estates In possession and in expectancy; free- holds and estates less than freehold; estates in severalty, in joint tenancy and in common; ab- solute and conditional, legal and equitable es- tates; etc CHAPTER XVL TITLES TO REAL PROPERTY: Covering title by descent and by purchase, classification and forms of deeds, etc CHAPTER XVTL PERSONAL PROPERTY: Real and personal chat- tels, ownership of personal property, acquisition of title, etc CHAPTER XVIH. SUCCESSION AFTER DEATH: Testate and Intes- tate succession, escheat, executors and adminis- trators, etc CHAPTER XIX. CONTRACTS: Definition, validity and classification of contracts, quasi contracts, etc CHAPTER XX. SPECIAL CONTRACTS: Covering contracts of sale, bailments, negotiable contracts, suretyship, Insurance, etc CHAPTER XXI. AGENCY: Covering the subject generally. CHAPTER XXH. COMMERCIAL ASSOCIATIONS: Covering part- iiMJiiKijiA i_i Assu^iAiiumo: covering part- nerships, joint stock companies, voluntary asso- ciations, corporations, etc CHAPTER XXTTt. TORTS : Covering the nature and elements of torta, proximate and remote cause and specific torts. Part III— THE ADJECTIVE LAW. CHAPTER XXIV. REMEDIES: Extralegal and legal, penal and drfl, common law and equitable, ordinary and extraor- dinary remedies. CHAPTER XXV. COURTS AND THEIR JURISDICTION: Covering the subject generally. CHAPTER XXVL PROCEDURE: In general; outlines of common law, equity, code, and criminal procedure. CHAPTER XXVII. TRIALS: Early forma, trial procedure, evidence. 1 VOL. 367 PAGES. $3.75. DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. C1112 (14) (£fc jE)orn6oo& ^enec.) £0e Saw of ©ama t&t $)orr.Booft ^Series. Qt ^aniBooS of £0e Bate of ^prit>a^e Corporations By WH. L. CLARK, Jr., Author of "Criminal Law," "Criminal Procedure," and "Contracts." TABLE OF CONTENTS. Chapter I. OP THE NATURE OP A CORPORATION: Definition and creation; limited powers; attri- butes and incidents; corporation as a person, citizen, etc. ; kinds of corporations, etc. Chapter II. CREATION AND CITIZENSHIP OP CORPO- RATIONS: Covering the subject generally, in- cluding power to create; general and special laws; ratification of claim to corporate exist- ence ; agreement between corporation and state — acceptance of charter; agreement between corporators and corporation ; purpose of incorpo- ration ; corporate name, residence, and citizen- ship of corporation; extension of charter; proof of corporate existence, etc. Chapter III. EFFECT OP IRREGULAR INCORPORATION: Corporations de facto; estoppel to deny corpo- rate existence ; liability of stockholders as part- ners. Chapter IV. RELATION BETWEEN CORPORATION AND ITS PROMOTER 8 : Liability for expenses and services of promoters; liability on contract by promoters; liability of promoters to corporation and stockholders, etc. Chapter V. POWERS AND LIABILITIES OP CORPORA- TIONS: Express and implied powers; con- struction of charter; power to hold realty ; con- tracts and conveyances, etc. Chapter VI. POWERS AND LIABILITIES OP CORPORA- TIONS (Continued) : The doctrine of ultra vires. Chapter VII. POWERS AND LIABILITIES OP CORPORA- TIONS (Continued): Responsibility for torts and crimes ; contempt of court, Chapter VIII. THE CORPORATION AND THE STATE: Charter as a contract ; police power of the state ; power of eminent domain; repeal and amend- ment of charter; taxation of corporation. Chapter IX. DISSOLUTION OF CORPORATIONS: How ef- fected; equity jurisdiction; effect of dissolu- tion, etc Chapter X. MEMBERSHIP IN CORPORATIONS: Capital stock and capital; nature of corporate shares; certificates of stock; subscriptions to stock; re- lease and discharge of subscriber, etc., covering the subject generally. Chapter XI. MEMBERSHIP IN CORPORATIONS (Contin- ued) : Right to inspect books and papers; right to vote; profits and dividends; increase of cap- ital; preferred stock ; watered and bonus stock; action by stockholders for injuries to corpora- tion ; expulsion of members, etc. Chapter XII. MEMBERSHIP IN CORPORATIONS (Contin- ued) : Covering transfer of shares. Chapter XIII. MANAGEMENT OP CORPORATIONS— OFFI- CERS AND AGENTS: Powers of majority of stockholders; by-laws; stockholders' meetings; election and appointment of officers and agents: powers and liabilities of officers and agents; re- moval of officers and agents, etc, covering the subject generally. Chapter XIV. RIGHTS AND REMEDIES OF CREDITORS: Relation between creditors and the corporation, covering, inter alia, property subject to execu- tion ; assets as a trust fund for creditors; fraud- ulent conveyances; assignment for benefit of creditors; preferences; dissolution, injunction, and receivers; relation between creditors and stockholders, covering, inter alia, statutory lia- bility of stockholders; contribution between stockholders, etc. ; relation between creditors and officers, covering preferences to officers who are creditors ; statutory liability of officers. Chapter XV. FOREIGN CORPORATIONS: Covering the sub- ject generally. APPENDIX. The logical conception of a corporation. i Volume. 740 pages. $375* net, delivered. West Publishing Co., St. Paul, Minn. C1479 (19) g#e JE)°rn6ooft Series. Qt J)anb6oo8 of £0e £ai» of (patfnerefHp Q0g TWffont (Beorge. TABLE OF CONTENTS. Chapter I. DEFINITION AND ESTABLISHMENT OF RELATION: What constitutes a partner- ship; tests of intention; sharing profits; pro- moters of corporations; defective corpora- tion; delectus personarum; subpartnerships; holding out, etc. Chapter H. KINDS OF PARTNERSHIPS AND PART- NERS: Classification of partnerships and partners; universal, general, and special part- nerships; limited partnerships; joint-stock companies; mining partnerships; trading and nontrading partnerships, etc. Chapter HI. CHARACTERISTIC FEATURES OF PARTNERSHIPS: Legal and mercantile view of a firm; partnership name; partner- ship property; partnership capital; shares in partnerships, etc. Chapter IV. IMPLIED RIGHTS AND LIABILITIES IN- TER SE: Participation in management; rights and powers of majority; duty to ex- ercise care, skill, and good faith; right to compete with firm; compensation for serv- ices; interest on balances; partner's lien; division of profits, etc. Chapter V. ARTICLES OF PARTNERSHIP: Purpose and effect; rules of construction; usual clauses in articles, etc.; covering the subject generally. Chapter VI. RIGHTS AND LIABILITIES AS TO THIRD PERSONS: Express and implied authority of partner to bind firm; particu- lar powers; liability of partners to third persons; incoming partners; assumption of debts; rights in firm and separate property. etc Chapter VII. ACTIONS BETWEEN PARTNERS: Action on partnership claim or liability, at law, in equity, or under the code; actions between firms with a common member; actions on individual obligations; equitable actions in general; accounting and dissolution; spe- cific performance; injunction; receivers, etc. Chapter VIII. ACTIONS BETWEEN PARTNERS AND THIRD PERSONS: Parties in actions by and against partners; effect of changes in firm; disqualification of one partner to sue; action in firm name, etc Chapter IX. DISSOLUTION: Causes of dissolution; part- nerships for a definite and indefinite time; causes subject to stipulation; causes not sub- ject to stipulation; causes for which a court will decree a dissolution; consequences of dissolution as to third persons and as to partners. Chapter X. LIMITED PARTNERSHIPS: Covering the subject exhaustively, including, inter alia, definition and establishment of relation; general and special members; certificate; contribution of general and special partners; name; sign; rights and liabilities; with- drawal, alteration, and interference; insol- vency; termination of relation; change from limited to general liability; actions, etc Chapter XL JOINT-STOCK COMPANIES: Definition and nature; transfer of shares; powers of mem- bers and officers; rights and liabilities; ac- tions, etc. i Volume, 616 pages. $3.75, net, delivered. West Publishing Co., St. Paul, Minn. C1471 (20) (3n tfe JJornBooft ^criee.) Qt §anb6oo8 of d5<)uifg (pfeabincj* Author of " Shipman's Common- Law Pleading. 1 TABLE OF CONTENTS. Chapter I. BQUTTT PLEADING IN GENERAL: Cov- ering nature and scope of pleadings in eq- uity. Chapter H. PARTIES: Giving general rules, and covering classification of parties as necessary, proper but not indispensable, formal, and parties with separable interests; parties complain- ant and respondent; joinder, etc Chapter HI. PROCEEDINGS IN AN EQUITABLE SUIT: Indicating the steps usually taken and the method of procedure, as the bill, appearance, proceedings on default; the modes of defense, by disclaimer, demurrer, plea, or answer; the replication; interlocu- tory proceedings, as amendment, injunc- tions, production of documents, interven- tion; the evidence, hearing, and decree; the correction, reversal, or enforcement of de- crees, etc Chapter IV. BILLS IN EQUITY: Covering definition and classification, and discussing original bills, and bills not original, with a summary of the general rules covering the bill, etc Chapter V. THE DISCLAIMER: Definition, nature, and use. Chapter VL DEMURRER: Definition; form of demurrer, and grounds therefor; orders sustaining or overruling demurrer, etc Chapter VTL THE PLEA: Definition, nature, and office of pleas, grounds for pleas, their form, support- ing answers, etc. Chapter VJXL. THE ANSWER: Nature and office, substance and effect, of the answer, and the character- istics thereof. Chapter IX. THE REPLICATION. 644 PAGES. $3.75, NET, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. C1630 (21) (Zfc 5)orn6o©8 ^erico.) Z$t £an> of tnu+ (gg 3ogn 2(4g (gfc(gefeeg, @,. (31., &&. (f ., Author of "Common- Law Pleading," etc TABLE OF CONTENTS. CHAPTER I. INTRODUCTORY: Definitions; origin, place and function of the law of evidence, etc. CHAPTER II. JUDICIAL NOTICE: The doctrine in general; facts which may or must be noticed. CHAPTER III. QUESTIONS OF LAW AND QUESTIONS OF FACT: Definitions; province of court and jury. CHAPTER IV. BURDEN OF PROOF: Burden of proof never Bhifts; burden of proceeding may shift; ver- dict, etc. CHAPTER V. PRESUMPTIONS: Presumptions as rules of law; prima facie, conclusive, spurious, and conflicting presumptions. CHAPTER VI. ADMISSIONS: Direct and indirect admissions; admissibility; civil and criminal cases; ef- fect of admission, etc. CHAPTER VII. CONFESSIONS: Defined; voluntary or under influence; may be explained; evidence there- from, etc. CHAPTER VIII. MATTERS EXCLUDED AS UNIMPOR- TANT, OR AS MISLEADING, THOUGH LOGICALLY RELEVANT: Logical and le- gal relevancy, rule excluding; classification of matter; proof of diverse matters consid- ered. CHAPTER IX. CHARACTER: General rule; when material; how proved, etc. CHAPTER X. OPINION EVIDENCE: Matter of opinion dis- tinguished from matter of fact; general rule; exceptions; matters forming subject of ex- pert opinion, etc. CHAPTER XL HEARSAY: General rule; exceptions; real and apparent; classes of statements admit- ted because of the difficulty of other proof. CHAPTER XII. WITNESSES: Rules excluding witnesses; per- sons excluded; privilege distinguished from disqualification; privileged persons. CHAPTER XIII. EXAMINATION OF WITNESSES: Ordinary method; refreshing memory; direct and cross examination; leading questions; im- peaching witness, etc. CHAPTER XIV. WRITINGS: B*st evidence rule; production of documents; authentication of documents; proof of handwriting; evidence affecting the contents of documents, etc. CHAPTER XV. DEMURRERS TO EVIDENCE: Definition; when joinder compelled; final form, etc 1 vol. 480 pages. $3.75, net, delivered. WEST PUBLISHING CO., St. Paul, Minn. C1887 (22) (£#e JE)orn8oo£ ikctito.) ($ §)Anfc0ooft of €§t Saw of (Jle^ficjettce^ TABLE OF CONTENTS. Chapter I. DEFINITION AND ESSENTIAL ELE- MENTS : Considering also proximate cause ; efficient, intervening, or co-operating cause, etc Chapter IT. CONTRIBUTORY NEGLIGENCE: Defini- tion and general rule ; degree of care ; as- sumption of risk and legal status of plain- tiff ; plaintiff's negligence ; negligence of third persons ; imputed negligence ; phys- ical condition as an element ; evidence, pleading, and questions of fact. Chapter III. LIABILITY OF MASTER TO SERVANT: Duty of master, as to appliances, selecting servants, rules, etc. ; limitation of master's duty ; ordinary risks, known dangers, fel- low servants ; concurrent and contributory negligence. Chapter IV. LIABILITY OF MASTER TO THIRD PER- SONS : Relationship ; independent con- tractor; willful torts of servants, and inde- pendent torts. Chapter V. COMMON CARRIERS OF PASSENGERS: The relation of passenger and carrier ; ter- mination of relation; who are passengers; the contract, ticket, compensation, etc Chapter VI. CARRIERS OF GOODS : Definition ; liabili- ty for loss or damage ; liability for delay ; contracts limiting liability in special states; limiting time and manner of making claims ; construction of limiting contracts ; actual notice ; special classes of goods, as live stock and baggage ; beginning and termina- tion of liability ; excuses for nondelivery. Chapter VEL OCCUPATION AND USE OF LAND AND WATER: Duties,— general rule; lateral support ; dangerous premises ; landlord and tenant, and condition of rented premises ; water courses ; dams ; obstruction of navi- gable streams, etc. Chapter VIII. DANGEROUS INSTRUMENTALITIES : Railroads ; degree of care exacted ; signals ; care required of persons; collisions with persons and with animals ; fires ; inten- tional, accidental, and railroad fires; ani- mals ; communicating disease ; firearms, ex- plosives, poisons, etc Chapter IX. NEGLIGENCE OF ATTORNEYS, PHYSI- CIANS, AND PUBLIC OFFICERS: Negligence of attorneys ; damage essential to liability ; negligence of physicians ; bur- den of proof, evidence, pleading, etc. ; negli- gence of public and governmental officers, ministerial officers, sheriffs and constables, notaries public, clerks of court, and registers of deeds. Chapter X. DEATH BY WRONGFUL ACT : Right of ac- tion ; instantaneous death, proximate cause of death, beneficiaries ; damages ; pleading and evidence ; limitation of commencement of action. Chapter XI. NEGLIGENCE OF MUNICIPAL CORPO- RATIONS : Public and private corpora- tions ; right of action ; liability for inju- ries ; alteration of grades; acts of officers or agents; acts ultra vires; judicial or leg- islative duties; conflagrations and destruc- tion by mobs ; public health and sanitation ; quasi municipal corporations. 1 VOL. 634 PAGES. S3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. C278S-1 (23) (t(5e JgornBooft Series.) 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