SCHOOL OF LAW UNIVERSITY OF CALIFORNIA Los Angeles GIFT OF Roscoe Pound EQUITY AND ITS REMEDIES By CHARLES NEAL BARNEY, A. M., LL B. \\\ OF THE MASSACHUSETTS BAK BOSTON G. A. JACKSON LAW BOOK PUBLISHER 1915 T 1915 Copyright 1915 BY CHARLES NKAL BARNEY Lynn, Massachusetts All Rights Reserved G. H. A A. L. NICHOLS, PRINTERS LYNN, MASSACHUSETTS PREFACE This book is the outcome of lectures delivered by the author at the Evening Law School of the Boston Y. M. C. A. and at the Law School of Boston Univer- sity, on the equitable remedies. The justification for putting the material in this form is found in the expressions of gratitude from former students who have been good enough to say that they have found in these lectures citations and statements of principles inaccessible in any text-book. The frequency with which the author has turned to these notes for cita- tions in his own practise has convinced him that others of the profession may be able to find assistance from the same source. The book is an attempt to give a rational outline of equity (exclusive of trusts and kindred subjects) and to show the scope of the equitable remedies. It does not attempt to deal with strictly statutory subjects or with equity pleading or practice. While the citations are largely drawn from Massa- chusetts cases (and Ames's Cases on Equity), it is believed the subject is treated in such a way as to make the book of general application, useful to the student or practitioner in any part of the United States. No attempt has been made to cite all the equity cases decided in Massachusetts, although cer- tain parts of the subject, not covered by existing text-books, have been treated with thoroughness. Special attention has been given to late cases. In preparation of this work the author is indebted to Henry T. Lummus, Esquire, of Lynn, for the use of his notes on certain subjects, and to Asa S. Allen, Esquire, of Boston for valuable assistance in the pre- paration of material. C. NEAL BARNEY. Lynn, Mass., November 15, 1915. CONTENTS. CASES CITED ix CHAPTER I. PAGES 1 TO 11 ORIGIN AND NATURE OF EQUITY A. HISTORICAL. B. EFFECT OF EQUITY GROWTH ON COMMON LAW. C. AN OUTLINE OF EQUITY. CHAPTER II. PAGES 12 TO 23 EQUITABLE PARTIES. A. SUITS BETWEEN HUSBAND AND WIFE. B. SUITS BETWEEN PARTNERS. C. CERTAIN SUITS BETWEEN PARTIES HAVING OR CLAIMING INTERESTS IN A COMMON SUBJECT MATTER. CHAPTER III. PAGES 24 TO 38 SOME FEATURES OF EQUITY JURISDICTION AND PROCEDURE. A. PLAIN, ADEQUATE AND COMPLETE REMEDY AT LAW. a. Its absence a basis of relief in equity. b. Its presence as a defense to equitable pro- cedure. c. Its presence in some cases immaterial. d. As affecting procedure. B. THE JURY IN EQUITY. C. EQUITY ACTS in personam, NOT in rem. CHAPTER IV. PAGES 39 TO 51 THE MAXIMS. A. EQUITY WILL NOT SUFFER A WRONG TO BE WITH- OUT A REMEDY. B. EQUITY FOLLOWS THE LAW. C. WHERE THE EQUITIES ARE EQUAL, THE LAW WILL PREVAIL. D. WHERE INTERESTS ARE PURELY EQUITABLE AND IN OTHER RESPECTS EQUAL, PRIORITY IN TIME GIVES THE BETTER EQUITY. E. EQUITY TREATS THAT AS DONE WHICH OUGHT TO BE DONE. F. HE WHO SEEKS EQUITY MUST DO EQUITY. G. HE WHO COMES INTO EQUITY MUST COME WITH CLEAN HANDS. H. EQUITY AIDS THE VIGILANT. CHAPTER V. PAGES 52 TO 84 SOME DOCTRINES IN EQUITY. A. ASSIGNMENTS. B. NOTICE. C. ESTOPPEL. 1. Estoppel by Record. 2. Estoppel by Deed. 3. Estoppel in Pais. a. From Contract. b. Equitable Estoppel. D. EQUITABLE CONVERSION. CHAPTER VI. PAGES 85 TO 114 SOME SPECIFIC GROUNDS FOR RELIEF A. ACCIDENT. B. MISTAKE. 1. Excusable Ignorance of a Material Matter a. Mistakes of Law. b. Mistakes of Fact. 2. Mistakes in Written Instruments. 3. Relief Generally. C. FRAUD. 1. Jurisdiction. 2. Constructive Fraud. a. Apparent from the Bargain Itself. b. Presumed from the Circumstances of the Parties. c. Transactions Injurious to Third Per- sons Fraudulent Conveyances. d. Transactions Void as Against Public Policy. 3. Remedies in Fraud. a. Remedies at Law. b. Remedies in Equity. CHAPTER VII. PAGES 115 TO 157 SPECIFIC PERFORMANCE OF CONTRACTS. A. AFFIRMATIVE CONTRACTS GENERALLY. a. Contracts about Land. b. Contracts about Chattels. c. Stocks and Bonds. d. Agreements to Arbitrate and to Give Options. e. Contracts Involving the Performance of Labor. B. NEGATIVE CONTRACTS GENERALLY. a. Involving Personal Service. b. Limiting the Use of Property. c. Agreement not to Compete: 1. Express agreements; 2. Agreements implied from sale of good will. C. RELIEF FOR AND AGAINST THIRD PERSONS. a. Legal Easements. b. Certain Covenants Running with Land. c. Restrictions or Equitable Easements. D. STATUTE OF FRAUDS PART PERFORMANCE. E. PARTIAL PERFORMANCE. F. TIME THE ESSENCE OF THE CONTRACT. G. MARKETABLE TITLE. H. MUTUALITY. I. NECESSITY AND ADEQUACY OF CONSIDERATION. J. SUNDRY DEFENSES AND INCIDENTS OF THE REMEDY. CHAPTER VIII. PAGES 158 TO 164 INJUNCTIONS. A. GENERALLY. B. RESTRAINING LEGAL PROOCEEDINGS AND JUDG- MENTS. C. RESTRAINING ILLEGAL ACTS OF PUBLIC OR CORPORATION OFFICIALS. CHAPTER IX. PAGES 165 TO 201 INJUNCTIONS SPECIFIC REPARATION AND PREVENTION OF TORTS. A. WASTE. B. TRESPASS AND DISTURBANCE OF EASEMENTS. C. NUISANCE. D. INFRINGEMENT OF PATENTS, COPYRIGHTS AND TRADEMARKS. UNFAIR COMPETITION. E. INTERFERENCE WITH BUSINESS OR CONTRACT. CHAPTER X. PAGES 202 TO 213 PECUNIARY RELIEF IN EQUITY. A. ACCOUNTING. B. EXONERATION. C. CONTRIBUTION. D. SUBROGATION. E. MARSHALING. CASES CITED Aberthaw Construction Co. v. Cameron, 194 Mass. 208 . 193, 196, 197, 199, 201 Ackroyd v. Smithson, 1 Brown's Ch. 503 78 Adams v. Messinger, 147 Mass. 185 ... 27, 35, 118, 121, 124 Adams v. Nichols, 19 Pick 275 88 Adams v. Young, 200 Mass. 588 113,211,212 Adderley v. Dixon, 1 Simons & Stuart 607 119 Aetna Life Ins. Co. v. Middleport, 124 U. S. 534 210 Agar v. Macklew, 2 Simons & Stuart 418 . 123 Aleck v. Jackson, 49 N. J. Eq. 507 23 Alexanders Tolleston Club, 110 111. 65 35 Allen v. Allen, 213 Mass. 29 103 Allen v. Barrett, 213 Mass. 36 136 Allen v. Hunt, 213 Mass. 276 27, 30 Allyn v. Allyn. 154 Mass. 570 84 American Bridge Co. v. Boston, 202 Mass. 374 59 American Circular Loom Co. v. Wilson, 198 Mass. 182 . . 102,190 American Lithograph Co. v. Ziegler, 216 Mass. 287 . . . . 54, 56 American Stay Co. v. Delany, 211 Mass. 229 190 American Waltham Watch Co. v. U. S. Watch Co., 173 Mass. 85 186, 188 Anchor Electric Co. v. Hawkes, 171 Mass. 101 .... 126, 130 Andrews v. Mines Corporation, 205 Mass. 121 163 Andrews v. Sparhawk, 13 Pick. 393 49 Angier v. Webber, 14 Allen 211 131 Anthony v. Valentine, 130 Mass. 119 41 Appeal of Wenz, 126 Penn. 541 78 Arndt v. Griggs, 134 U. S. 316 37 Arnold v. Brown, 24 Pick. 89 18 Aroian v. Fairbanks, 216 Mass. 215 151 Asche v. Asche, 113 N. Y. 232 78 Ascherson v. Tredegar Dry, etc. Co., (1909), L. R. 2 Ch. 404 206 Aspinwall v. Boston, 191 Mass. 441 163 Athol Sav. Bank v. Bennett, 203 Mass. 480 67, 210 Atkins v. Atkins, 195 Mass. 124 13, 14, 46 Atkins v. Chilson, 7 Met. 398 177 Atlantic Bank v. Tavener, 130 Mass. 407 13, 15 Attaquin v. Fish, 5 Met. 140 166, 167 Attorney General v. Bedard, 218 Mass. 378 203 Attorney General v. Fitzsimmons, 35 Am. Law Reg. 100 . 176 Attorney General v. Hunter, 1 Devereux Eq. 12 176 Attorney General v. Jamaica Pond Aqueduct, 133 Mass. 361 176 Attorney General v. Revere Rubber Co., 152 Mass. 444 . 179 Attorney General v. Williams, 174 Mass. 476 176 Ayer v. Ayer, 16 Pick. 327 13 B Bacon, v. Sandberg, 179 Mass. 396 138, 141 Badger v. Boardman, 16 Gray 559 138 CASES CITED Bailey v. Agawam Nat'l Bank, 190 Mass. 20 136 Bailey v. Wood, 211 Mass. 37 107 Baker v. Davie, 211 Mass. 429 213 Baker v. Libbie, 210 Mass. 599 184 Baker v. Selden, 101 U. S. 99 183 Baldwin v. Wilbraham, 140 Mass. 459 6 Banaghan v. Malaney, 200 Mass. 46 116 Barnard v. Lee, 97 Mass. 92 148, 149 Barnes v. Boardman, 152 Mass. 391 207 Barnes v. B. & M. R. R., 130 Mass. 388 .... 144, 145, 146,147 Barren v. International Trust Co., 184 Mass. 440 .... 112 Barrow t>. Richard, 8 Paige 351 139 Bartlett v. N. Y., N.H., & H. R. R. Co., 221 Mass. 530 . . 164 Bartlett v. Slater, 182 Mass. 208 123 Bassett v. Percival, 5 Allen 345 131 Bates v. Boston El. Ry., 187 Mass. 328 211, 213 Bates t;. Norcross, 14 Pick. 224 63 Batty v. Greene, 206 Mass. 561 99, 111 Bauer v. International Waste Co., 201 Mass. 197 30 Baugher v. Crane, 27 Md. 36 167 Beal v. Brown, 13 Allen 114 212 Beekman v. Marsters, 195 Mass. 205 48, 193, 195 Belknap v Belknap, 5 Allen 468 44 Bemis v. Upham, 13 Pick. 169 175 Benson v. Benson, 70 Md. 253 105 Berliner Co. v. Seaman, 110 Fed. Rep. 30 124 Bernard v. Adams Express Co., 205 Mass. 254 72 Berry v. Donovan, 188 Mass. 353 193, 194, 195, 198 Berry v. Friedman, 192 Mass. 131 46 Bigelow v. Ames, 108 U. S. 10 145 Bigelow v. Old Dominion Copper Co., 225 U. S. Ill . 65, 66, 67, 103 Biggert v. Straub, 193 Mass. 77 37 Billings v. Mann, 156 Mass. 203 28, 98, 99, 172 Bisbee v. McKay, 215 Mass. 21 61, 62 Bishop v. Palmer, 146 Mass. 469 129 Blake v. Traders' Bank, 145 Mass. 13 209 Blanchard v. Cooke, 144 Mass. 207 57 Blew . McClelland, 29 Mo. 304 81 Blinn v. Dame, 207 Mass. 159 55 Blood v. Blood, 23 Pick, 80 63 Blood v. Blood, 110 Mass. 545 20 Blout v. Societe Anonyme, 53 Fed. Rep. 98 182 Blount v. Wheeler, 199 Mass. 330 119 Boardman v. Jackson, 119 Mass. 161 28 Bodman v. American Tract Soc., 9 Allen 447 21 Bolivar Mfg. Co. v. Neponset Mfg. Co., 16 Pick. 247 ... 179 Boston Diatite Co. v. Florence Mfg. Co., 114 Mass. 69 . . 159 Boston Ferrule Co. v. Hills, 159 Mass. 147 174, 180 Boston & Maine R. R. v. Sullivan, 177 Mass. 230 . 25, 169 171 Boston & Worcester St. Ry. Co. v. Rose, 194 Mass. 142 . . 149 CASES CITED XI Boutelle v. Smith, 116 Maes. Ill 132 Bowen v. N. Y. C. & 11. li. R., 202 Mass. 263 54 Bowker v. Torrey, 215 Mass. 547 19 Boyden v. Hill, 198 Mass. 477 93 Brackett v. Perry, 201 Mass. 502 99 109 Brady v. Waldron, 2 Johns, Ch. 148 167 Brainard v. Conn. River Ry. Co., 7 Cush. 506 176 Brande v. Grace, 154 Mass. 210 170 Breed v. Berenson, 216 Mass. 397 155 Brewer v. Boston Theatre, 104 Mass. 378 164 Brewer v. Herbert, 30 Md. 301 84 Bresnihan v. Sheehan, 125 Mass. 11 15 Bridge v. Conn. Mutual Life Ins. Co., 152 Mass. 343 . . 43, 44 Bridgewater Iron Co. v. Enterprise Ins. Co., 134 Mass. 433 92 Brierly v. Equitable Aid Union, 170 Mass. 218 23, 57 Briggs v. Sanford, 219 Mass. 572 107 Briiikman v. Jones, 44 Wise. 498 62 Brock v. Dole, 66 Wise. 140 167 Bronson v. Coffin, 108 Mass. 175 136 Brookline v. Mackintosh, 133 Mass. 215 178 Brooks v. Brooks, 169 Mass. 38 45, 46 Brooks v. Rosenbaum, 217 Mass. 172 170 Brown v. Brown, 174 Mass. 197 15 Brown v. Corey, 191 Mass. 189 203 Brown v. Statter, 206 Mass. 119 .100,111,112 Brown v. Thissel, 6 Cush. 254 134 Browne v. Niles. 165 Mass. 276 180 Brownell v. White, 87 Md. 54 46 Bruce v. Bonney, 12 Gray 107 94 Bubb's Case, Freeman Ch. 38 82 Burk v. Schreiber, 183 Mass. 35 . 152 Burlen v. Shannan, 99 Mass. 200 66 Burleson t;. Woodin, 212 Mass. 323 . 99 Burnham v. Dowd, 217 Mass. 351 159, 193, 197, 198 Burns v. Daggett, 141 Mass. 368 144, 146 Burns v. Thayer, 115 Mass. 89 51 Bun-owes v. Locke, 10 Ves. 471 '. '. 100 Burrows-Giles Lithographic Co. v. Sarony, 111 U. S. 53 183 Burt v. Tucker, 178 Mass. 493 185, 187 Busiere v. Reilly, 189 Mass. 518 56, 105, 112 Butcher v. Stapley, 1 Vernon 363 147 Butler v. Gleason, 214 Mass. 248 . 103, 110 Butterick Pub. Co. v. Fisher, 203 Mass. 122 . . 45, 117, 126, 128 Button v. Schroyer, 5 Wise. 598 80, 81 C C. A. Briggs Co. v. Nat'l Wafer Co., 215 Mass. 100 . 188, 191 Cadman v. Homer, 18 Vesey 10 ... 155 Caldwell v. Nash, 190 Mass. 507 . 13 California Fig Syrup Co. v. Stearn, 73 Fed. Rep. 312 . . . 48 XII CASES CITED Callaghan v. Myers, 128 U. S. 617 183 Campbell v. Cook, 193 Mass. 251 202 Campbell v. Dearborn, 109 Mass. 130 42 Campbell v. Lima, 212 Mass. 11 101 Campbell v. Seaman, 63 N. Y. 568 174 Canedy v. Marcy, 13 Gray 373 94, 96 Cannon v. Barney, 59 Miss. 289 167 Canton Co-operative Bank v. American Central Ins. Co., 219 Mass. 132 . 76 Capen v. Barrows, 1 Gray 376 16 Carew v. Rutherford, 106 Mass. 1 191, 197 Carleton v. Rugg, 149 Mass. 550 176 Carr v. Silloway, 105 Mass. 543 20, 25 Carson v. Dunham, 149 Mass. 52 35, 161 Carter v. Ferguson, 58 Hun. 569 127 Carter v. Phillips, 144 Mass. 100 150 Carter v. Tanner's Leather Co., 196 Mass. 163 212, 213 Carteret v. Petty, 2 Swanston 323 35 Gary v. Holmes, 16 Gray 127 207 Case v. Minot, 158 Mass. 577 179 Cassidy v. Mason, 171 Mass. 507 136 Castlemain v. Craven, 22 Viner's Abr. 523 167 Central Nat'l Bank v. Copp. 184 Mass. 328 71 C. E. Worden & Co. v. California Fig Syrup Co., 187 U. S. 516 187 Chadwick v. Covell, 151 Mass. 190 53, 127, 185, 187 Chamberlain v. Walker, 10 Allen 429 17 Chandler v. Brainard, 14 Pick. 285 212 Chandler v-. McDonald-Weber Co., 215 Mass. 365 .... 123 Chapman v. Banker & Tradesman Co., 128 Mass. 478 ... 31 Chapman . Cole, 12 Gray 141 92 Chase v. Phillips, 208 Mass. 245 103, 107 Chesman v. Cummings, 142 Mass. 65 151 Chicago St. Co. v. Car Co., 139 U. S. 79 210 Childs v. Boston & Maine R. R., 213 Mass. 91 ... 135, 136, 141 Church v. Winton, 196 Penn. 107 42 Chute v. Quincy, 156 Mass. 189 93, 95, 116, 155 Citizens' Loan Ass'n v. B. & M. R.R., 196 Mass. 528 ... 126 City Bank of New Haven v. Wilson, 193 Mass. 164 .... 60 Clark v. Delano, 205 Mass. 224 102 Clark v. Flint, 22 Pick. 231 27, 28, 120 Clark v. Holden, 7 Gray 8 166 Clark v. McMahon, 170 Mass. 92 107 Clark . Patterson, 158 Mass. 388 14 Clark v. Storey, 208 Mass. 36 112, 204 Clarke v. Fay, 205 Mass. 228 56 Clarke v. Ramuz, L. R. 1891, 2 Q. B. 456 83 Clayton v. Ashdown, 9 Viner's Abr. 393 152 Clerk v. Boston, 179 Mass. 409 93 Clermont v. Tasburgh, U. & W. 112 156 Coates v. Lunt, 210 Mass. 314 87 Coates v. Lunt, 213 Mass. 401 94, 96 CASES CITED XIII Coats v. Merrick Thread Co., 149 U. S. 562 189 Cobb v. Rice, 130 Mass. 231 20 Codman v. Bradley, 201 Mass. 361 141, 143 Cogent v. Gibson, 33 Beavan 557 119 Coggan v. Ward, 215 Mass. 13 105 Coggswell o. Newburyport last, for Sav., 165 Mass. 524 . 21 Colby v. Shute, 219 Mass. 213 63 Cole v. Bates, 186 Mass. 584 202 Cole v. Killam, 187 Mass. 213 149 Cole v. N. E. Trust Co., 200 Mass. 594 73 Cole v. Reynolds, 18 N. Y. 74 16 Coles v. Trecothick, 9 Vesey 234 154 Colonial Development Co. v. Bragdon, 219 Mass. 170 ... 113 Conant v. Boston Chamber of Commerce, 201 Mass. 479 . 66 Conant p. Evans, 202 Mass. 34 73 Conn. Mut. Life Ins. Co. v. Cook, 219 Mass. 222 21, 22 Connell v. Reed, 128 Mass. 477 48 Connihan v. Thompson, 111 Mass. 270 75, 155 Consolidated Elec. Storage Co. v. Accumulator Co., 55 Fed. Rep. 485 . 182 Cook v. Scheffren, 215 Mass. 444 98, 110 Corbett v. Boston & Maine R. R.. 219 Mass. 351 .... 75 Corliss v. E. W. Walker Co., 64 Fed. Rep. 280 184 Cotting P. Otis Elevator Co., 214 Mass. 294 207 Cottrefl v. Babcock Co., 54 Conn. 122 130 County Commissioners of Hampshire, Petitioners, 143 Mass. 424 51 Covell v. Chadwick, 153 Mass. 263 187 Cox v. Maiden & Melrose Gas Lt. Co., 199 Mass. 324 ... 29 Crabtree v. Miller, 194 Mass. 123 172 Creeden v. Mahoney, 193 Mass. 402 157 Creely p. Bay State Brick Co., 103 Mass. 514 29 Cressey v. Cressey, 215 Mass. 65 69 Crockford v. Alexander, 15 Vesey 138 83 Crompton v. Anthony, 13 Allen 33 105 Crompton v. Pratt, 105 Mass. 255 205 Cromwell v. Norton, 193 Mass. 291 31, 157 Cromwell v. Parsons, 219 Mass. 299 160 Cronin v. Bloemecke, 58 N. J. Eq. 313 181 Crosby p. Clem, 209 Mass. 193 12 Crower p. Grower, 29 Grattan 280 209 Culbert p. Hall, 181 Mass. 24 34 Cunningham p. Pattee, 99 Mass. 248 08 Curran p. Holyoke Water Power Co., 116 Mass. 90 ... 116 Curre P. Bowyer, 5 Beavan 6 81 Curtis P. Mundy, 3 Met. 405 62 Curtis Mfg. Co. p. Spencer Wire Co., 203 Mass. 448 . . 170, 174 Curtiw P. Sheffield, 213 Mass. 239 46 Cutler P. Dickinson, 8 Pick. 386 68 Cutter P. Cutter, 215 Mass. 94 78 XIV CASES CITED D Daly v. Foss, 199 Mass. 104 141 Dana v. Third Nat'l Bank, 13 Allen 445 59 Dana v. Valentine, 5 Met. 8 179 Dana v. Wentworth, 111 Mass. 291 137 Daniels v. Keokuk Water Co., 61 Iowa 549 178 Daniels v. Tearney, 102 U. S. 415 70 Davidson v. Sohier, 220 Mass. 270 141 Davis v. Alden, 2 Gray 309 88 Davis v. Bodlam, 165 Mass. 248 79 Davis v. Chicago Dock Co.. 129 111. 180 101 Davis v. N. E. Railway Pub. Co., 203 Mass. 470 .... 194 Davis v. Newton, 6 Met. 537 16 Day v. Cooley, 118 Mass. 524 106 Dean v. Emerson, 102 Mass. 480 130, 132 Dean v. Mitchell, 4 J. J. Marshall (Ky.) 451 83 Dean v. Toppin, 130 Mass. 517 211 Deans v. Eldredge, 217 Mass. 583 68, 69, 70 Dearie v. Hall, 3 Russell 1 44, 60 Debbins v. Foster, 219 Mass. 370 75 Deere v. Guest, 1 Mylne & Craig 516 171 Dehon v. Foster, 4 Allen 545 35, 160, 161 Delano v. Smith, 206 Mass. 365 165, 166, 168 Delval v. Gagnon, 213 Mass. 203 55 De Minico v. Craig, 207 Mass. 593 196, 197 Denholm v. McKay, 148 Mass. 434 51 Dering v. Earl Winchelsea, 1 Cox 318 (n) 48 Deshon v. Wood. 148 Mass. 132 107 Detroit v. Detroit Citizens' St. Ry. Co., 184 U. S. 368 . . 29 Dexter v. Codman, 148 Mass. 421 33 Dexter v. Fuller, 217 Mass. 219 110 Diamond Match Co. v. Roeber, 106 N. Y. 473 130 Dickerson v. Colgrove, 100 U. S. 578 74 Dickerson v. De la Vergne etc. Co., 35 Fed. Rep. 143 . . 182 Dickey v. Reed, 78 111. 262 40 Dietrichsen v. Cabburn, 2 Phillips 52 128 Dillon v. Heller, 39 Kan. 599 34, 37 Ditrell v. Carlisle, 48 Miss. 691 42 Doane v. Preston, 183 Mass. 571 50 Dodge v. Essex Ins. Co., 12 Gray 65 42 Doherty v. Allman, L. R. 3 App. Cases 709 168 Dole v. Wooldredge, 142 Mass. 161 33 Donaldson v. Strong, 195 Mass. 429 60 Dooley v. Cheshire Glass Co., 15 Gray 494 70 Dooley v. Merrill, 216 Mass. 500 83 Dooley v. Wolcott, 4 Allen 406 68 Doolittle v. Dwjight, 2 Met. 561 212 Dowling v. Betjemann, 2 Johnson & Hemming 544 .... 120 Downey v. Gove, 201 Mass. 251 47 Downey v. Hood, 203 Mass. 4 71, 172 CASES CITED XT Downing v. Elliott. 182 Mass. 28 174, 175 Dover Stamping Co. v. Fellows, 163 Mass. 191 186, 189 Drake v. Rice, 130 Mass. 410 104 Drake v. Taylor, 203 Mass. 528 174 Dresel v. Jordan, 104 Mass. 407 152 Drexel v. Berney, 122 U. S. 241 74 Duffy v. Hogan, 203 Mass. 397 123 Duke of Somerset v. Cookson, 2 P. Wms. 390 119 Dun v. Lumbermen's Credit Ass'n, 209 U. S. 20 183 Duncan v, Goldthwaite, 216 Mass. 402 173 Duncuft v. Albrecht, 12 Simons 189 121 Dunham v. Presby, 120 Mass. 285 29, 47 Dwight v. Hamilton, 113 Mass. 175 131, 132 Dwyer v. N. Y., N. H. & H. R. R., 209 Mass. 419 .... 176 Dyer v. Hargrave, 10 Vesey 505 148 Dzuris v. Pierce, 216 Mass. 132 91, 93, 97 E Eastern Bridge Co. v. Worcester Auditorium Co., 216 Mass. 426 37, 116 East India Co. v. Vincent, L. R. 35 Ch. D. 694 147 Eaton v. Eaton, 15 Wise. 259 95 Eaton v. Locke, 202 Mass. 324 176, 177 Echelkamp v. Schrader, 45 Mo. 505 169 Eddy v. Fogg, 192 Mass. 543 42 Edwards v. Allonez Mining Co., 38 Mich. 46 178 Edwards v. Willey, 219 Mass. 443 203 Edward Thompson Co. p. American Law Book Co., 122 Fed. Rep. 922 . 183 Ela v. Ela, 158 Mass. 54 43 Eldredge v. Mutual Life Ins. Co., 217 Mass. 444 104 Eliot Five Cents Sav. Bank v. Commercial Union Ass. Co., 142 Mass. 142 . 76 Ellis v. Boston H. & E. Co., 107 Mass. 1 43 Elmore v. Symonds, 183 Mass. 321 43 Emerson v. Atkinson, 159 Mass. 356 17 Emerson v. Cutler, 14 Pick. 108 79 Emerson v. Udall, 13 Vt. 477 161 Endicott v. University of Virginia 182 Mass. 156 .... 58 Ensign . Kellogg, 4 Pick. 1 117 Equitable Gas Lt. Co. v. Baltimore Coal Tar Co., 63 Md. 285 120 Erhardtt;. Boaro, 113 U. S. 537 169,171 Essex Trust Co. v. Enwright, 214 Mass. 507 103, 190 Evans v. Wall, 162 Mass. 478 62 Evans v. Foes, 194 Mass. 513 142 Ewald . Ewald.1219 Mass. Ill 46 XVI CASES CITED F Fairbanks v. Belknap, 135 Mass. 179 21 Fairfield v. Lowry, 207 Mass. 352 133 Falardeau v. Washburn, 199 Mass. 363 202 Fairbanks v. McDonald, 219 Mass. 291 66, 198, 200 Fales . Russell, 16 Pick. 315 7, 86 Fall v. Eastin, 215 U. S. 1 35 Fall River v. Aetna Ins. Co., 219 Mass. 454 76 Farnum v. Bascom, 122 Mass. 282 208 Farrar v. Pillsbury, 217 Mass. 330 27 Federal Trust Co. v. Bristol Co. St. Ry., 218 Mass. 63 68 Felch v. Hooper, 119 Mass. 52 37, 81 Ferguson v. Jackson, 180 Mass. 557 8 Ferry v. Stephens, 66 N. Y. 321 154 Ferris v. Frohman, 223 U. S. 424 184 Finnish Temperance Soc. v. Raivaaja Pub. Co., 219 Mass. 28 159 First A. M. E. Soc. v. Brown, 147 Mass. 296 151 Fiske v. Doucette, 206 Mass. 275 46 Fitcher v. Griffiths, 216 Mass. 174 210 Flagg Mfg. Co. v. Holway, 178 Mass. 83 189 Flight v. Bollard, 4 Russell 299 152 Flint v. Brandon, 7 Vesey 159 125 Florence Mining Co. v. Brown, 124 U. S. 385 59 Florence Sewing Machine Co. v. Grover, etc. Co., 110 Mass. 1 120 Flynn v. Butler, 189 Mass. 377 55 Flynn v. Howard, 218 Mass. 245 66 Fogg v. Price, 145 Mass. 513 123 Forest River Lead Co. v. Salem, 165 Mass. 193 22 Foreter Mfg. Co. v. Cutter-Tower Co., 215 Mass. 136 . . 190, 191 Foss v. Roby, 195 Mass. 292 131, 132 Foster, etc. Co. v. Sayles, 213 Mass. 319 151 Fothergill v. Rowland, L. R. 17 Eq. 132 118, 128 Fourth Nat'l Bank v. Mead, 214 Mass. 549 29, 105 Fowle v. Torrey, 135 Mass. 87 13, 41 Fowler v. Strickland, 107 Mass. 552 211 Francisco v. Smith, 143 N. Y. 488 . . . 137 Frank . Sleeper, 150 Mass. 583 185, 186, 187 Frankel . Frankel, 173 Mass. 214 13, 14 Franklin v. Greene, 2 Allen 519 33 Freeman v. Freeman, 136 Mass. 260 18 French v. Boston Nat'l Bank, 179 Mass. 404 119 French v. Conn. River Lumber Co., 145 Mass. 261 .... 177 French v. Peters, 177 Mass. 568 53, 54 Frith v. Sprague, 14 Mass. 455 212 Frost v Jacobs, 204 Mass. 1 172 Frost v. Thompson, 219 Mass. 360 66, 67, 75 Fuller v. Melrose, 1 Allen 166 , 50 Fuller . Percival, 126 Mass. 381 98, 110 Furbur v. Dane, 203 Mass. 108 206 Furnald v. Glenn, 64 Fed. Rep. 49 162 F. W. Dodge Co. t>. Construction Inform. Co., 183 Mass. 62 127, 184 CASES CITED XVII Gaff v. Cornwallis, 219 Mass. 226 119 Gahn v. Wallace, 206 Mass. 39 36 Galligan v. McDonald, 200 Mass. 299 118, 151 Galway t>. Met. Elev. Ry. Co., 128 N. Y. 132 178, 179 Gamewell Fire Alarm Telegraph Co. v. Crane, 160 Mass. 60 129 Garcin v. Penn. Furnace Co., 186 Mass. 405 150 Gardner v. Denison, 217 Mass. 492 67 Gardner v. Ogden, 22 N. Y. 327 35 Gargano v. Pope, 184 Mass. 571 8, 48, 102 Gates v. Johnston Lumber Co., 172 Mass. 495 168, 169 Gay v. Gay, 5 Allen 157 205 Gaylord v. Pelland, 169 Mass. 356 94 George v. Kent, 7 Allen 16 62 Geo. G. Fox Co. v. Best Baking Co., 209 Mass. 251 ... 48, 189 Geo. G. Fox Co. v. Glynn, 191 Mass. 344 189 Geo. G. Fox Co. v. Hathaway, 199 Mass. 99 189 Georgia v. Tennessee Copper Co., 237 U. S. 474 .... 174, 177 German . Grim, 32 Ind. 255 German-American Ins. Co. v. Davis, 131 Mass. 316 ... 95, 97 Gibbens v. Peeler, 8 Pick. 254 Ill Gibson v. Cooke, 1 Met. 75 79 Gibson v. Supervisors, 80 Cal. 363 40 Gilchrist v. Railroad Co., 58 Fed. 708 40 Oilman v. American Prod. Con. Co., 180 Mass. 319 .... 64 Gilman v. Hunnewell, 122 Mass. 139 186 Glass v. Hulbert, 102 Mass. 24 97, 144, 145 Globe Newspaper Co. v. Walker, 210 U. S. 356 184 Gloucester Isinglass, etc. Co. v. Russia Cement Co., 154 Mass. 92 120 Goldman v. Rosenberg, 116 N. Y. 78 84 Goldsmith v. Guild, 10 Allen 239 150 Gompers v. Buck's Stove & Range Co., 221 U. S. 418 ... 197 Goode v. Riley, 153 Mass. 585 94 Goodenough v. Labrie, 206 Mass. 599 73 Goodrich v. Burbank, 12 Allen 459 133 Goodson v. Richardson, L. R. 9 Ch. App. 221 169, 172 Gorton Pew Fish Co. v. Tolman, 210 Mass. 402 134 Gould v. Emerson, 160 Mass. 438 91, 92, 96 Graffam v. Burgess, 117 U. S. 192 100 Gragg t;. Martin, 12 Allen 498 104 Granara v. Italian Cath. Gem. Ass'n, 218 Mass. 387 ... 163, 164 Granger v. Parker, 137 Mass. 228 70 Graves v. Goldthwaite, 153 Mass. 268 144 Gray v. Bartlett, 20 Pick. 186 70 Great Falls Mfg. Co. v. Worcester 23 N. H. 462 35 Green v. Smith, 1 Atkyns 572 82 Greene v. Fitchburg, 219 Mass. 121 164 Greenhood v. MacDonald. 183 Mass. 342 27 Griffen v. Kelleher, 132 Mass. 82 207 XVIII CASES CITED Griswold v. Hazard, 141 U. S. 260 38, 90 Grocers' Supply Co. v. Dupuis, 219 Mass. 576 188 Grover v. Grover, 24 Pick. 261 52, 53 Guild v. Butler, 127 Mass. 386 208 H Hagar v. Norton, 188 Mass. 47 110 Hall v. Hardy, 3 P. Wms. 187 123 Hallett v. Cumston, 110 Mass. 29 204 Hamilton v. St. Louis Bank, 3 Dillion 230 121 Hammond v. Allen, 11 Peters 63 91 Hammond v. Putnam, 110 Mass. 232 23, 77, 78 Handforth v. Jackson, 150 Mass. 149 130 Hano v. Bigelow, 155 Mass. 341 138 Hanson v. Griswold, 221 Mass 10 Harmon v. Weston, 215 Mass. 242 212 Harrell v. Sonnabend, 191 Mass. 310 147 Harrigan v. Dodge, 200 Mass. 357; 216 Mass. 461 ... 156, 157 Harrington v. McCarthy, 169 Mass. 492 171 Harris v. Graham, 110 Fed. Rep. 896 34 Harrison v. Glucose Sugar Ref. Co., 116 Fed. Rep. 304 . . 127 Harrison v. Pepper, 166 Mass. 288 167 Hart v. Leonard, 42 N. J. Eq. 416 167, 171 Hart v. Sansom, 110 U. S. 151 34 Hart v. Weston R.R. Co., 13 Met. 99 210 Harvey v. Squire, 217 Mass. 411 110 Harvey v. Varney, 98 Mass. 118 47, 112 Haskell v. Blair, 3 Gush. 534 56 Haskell v. Cunningham, 221 Mass. 49, 65 Hatton v. Gray, 2 Gas. in Ch. 164 153 Haven v. Foster, 9 Pick. 112 90, 93 Haverhill Sav. Bank v. Griffin, 184 Mass. 419 139 Hawes v. Lothrop, 38 Cal. 493 79 Hawkes v. Kehoe, 193 Mass. 419 84 Hawkes v. Lackey, 207 Mass. 425 102, 103 Hawley v. Clowes, 2 Johns. Ch. 122 166 Hayden v. Cabot, 17 Mass. 169 206 Haynes v. Nice, 100 Mass. 327 205 Hayward v. Brunswick, etc. Society, 3 Q. B. D. 403 ... 140 Hazen v. Matthews, 184 Mass. 388 139 Heard v. Stanford, Cases temp. Talbot 173 41 Hecht v. Batchelder, 147 Mass. 335 92 Heckard v. Sayre, 34 111. 142 . . . . - 150 Hedges v. Dixon County, 150 U. S. 182 41 Heine v . Commissioners, 19 Wall. 655 40 Hendrick v. Whittemore, 105 Mass. 23 207 Hendrickson v. Hinckley, 17 Howard 443 160 Hennessy v. Carmony, 50 N. J. Eq. 616 178, 181 Hennessy v . Preston, 219 Mass. 61 41 Henry v. A. B. Dick Co., 224 U. S. 1 129 CASES CITED XIX Herbert v. Bronson, 125 Mass. 475 56 Herbert v. Simpson, 220 Mass. 480 52, 53 Herbst v. Fidelia, etc. (Dorp's, 218 Mass. 181 119 Herman r. Conn. Mutual Life Ins. Co., 218 Mass. 181 . 74, 44, 53, 55,60 Hermann v. Hodges, L. R. 16 Eq. 18 121 Herring-Hall-Marvin Safe Co. . Hall's Safe Co., 208 U. S. 554 187 Hewins v. Baker, 161 Mass. 320 53 Hewitt v. Hayes, 205 Mass. 356 202, 206 Hill v. Hall, 191 Mass. 253 102,111 Hilli;. Lane, L. R. 11 Eq. 215 98 Hill v. Sayles, 12 Cush. 454 175 Hill Mfg. Co. v. Prov. & N. Y. S. Co., 113 Mass. 495 . . 162 Hinchley v. Greaney, 118 Mass. 595 72 Hinsdale v . Bank of Orange, 6 Wendell 678 87 Hittinger Fruit Co. v. Cambridge, 218 Mass. 220 175 Hoban v. Dempsey, 217 Mass. 166 193, 195, 198, 201 Hodge v. Cole, 140 Mass. 116 94 Hodge v. Sloan, 107 N. Y. 244 139 Hodgson v. Duce, 2 Jur. n. s. 1014 172 Hogan v. Barry, 143 Mass. 538 134 Holbrook v. BUss, 9 Allen 69 5, 7 Holbrook v. Morrison, 214 Mass. 209 194 Holbrook v. Payne, 151 Mass. 383 59 Holden v. Hoyt, 134 Mass. 181 Ill Holland v. Cruft, 3 Gray 162 77-79 Holman v. Updike, 208 Mass. 466 74 Holmes v. Darling, 213 Mass. 203 17 Holmes v. Winchester, 133 Mass. 140 .... 13, 14, 15, 106,121 Holt v. Holt, 2 Vernon 322 125 Hood v. North Eastern Ry. Co., L. R. 8 Eq. 666 .... 124 Hopkins v. Smith, 162 Mass. 444 139 Horton v. McCoy, 47 N. Y. 21 79 Houghton v. Kendall, 7 Allen 72 Hovey v. Dary, 154 Mass. 7 77 Howe v. Conley, 16 Gray 552 156 Howe v. Howe, 199 Mass. 598 68 Howe v. Nickerson, 14 Allen 400 123 Howe v. Watson, 179 Mass. 30 119, 153 Hoxie v. Chaney, 143 Mass. 592 131, 132, 187 Hubbell v. Warren, 8 Allen 173 144 Hughes v. Williams, 218 Mass. 448 62, 64 Huguinon v. Basley, 15 Vesey 273 102 Hunt v. Rousmaniere's Adm'r., 1 Peters 1 89 Hunter v. Boston, 218 Mass. 535 40 Hunter v. Carroll, 64 N. H. 572 171 Huntress v. Blodgett, 206 Mass. 318 109 Huntress v. Hanley, 195 Mass. 236 73, 107 Hutchins v. Mead, 220 Mass. 348 108 Hutchins v. Page, 204 Mass. 284 133, 202 Hutchinson v. Nay, 187 Mass. 262 133 XX CASES CITED In re Barker, 17 Ch. Div. 241 79 In re David, (1889) 1 Ch. Div. 378 132 In re Debs, 158 U. S. 564 201 In re Leeds Woolen Mills, 129 Fed. Rep. 922 168 In re Shoenberger, 221 Penn. 112 80 Inst. for Sav. etc. v. Puffer, 201 Mass. 41 66, 116 Ipswich v. Prop'rs Jeffries Neck, etc., 218 Mass. 487 ... 51 J Jackson v. Stevenson, 156 Mass. 496 116, 140, 141 Jacobs v. Beecham, 221 U. S. 263 187, 188 Jacobs v. Hesler, 113 Mass. 157 15 James v. Newton, 142 Mass. 366 58 Jenkins v. Wood, 145 Mass. 494 165 Jefferys v. Jefferys, Craig & Phillips 139 154 Jeffries v. Jeffries, 117 Mass. 184 151 Jennings v. Wall, 217 Mass. 278 67, 70 Jewell v. Lee, 14 Allen 145 142 John Bros. Abergarw Brewery Co. v. Holmes, L. R. (1900) 1 Ch. 188 . 129, 137 Johnson v. Bartlett, 17 Pick. 477 210 Johnson v. Scott, 205 Mass. 294 35, 49, 99 Johnson v . Thompson, 129 Mass. 398 68 Johnston v. Hall, 2 K. & J. 414 141 Jones v. Arena Pub. Co., 171 Mass. 22 41 Jones v. Newhall, 115 Mass. 244 25, 28, 118 Jones v. Parker, 163 Mass. 564 125 Jones v. Witter, 13 Mass. 304 54 Joslyn v. Adams, 5 Allen 62 45 J. P. Eustis Mfg. Co. v. Saco Brick Co., 198 Mass. 212 . 8, 90, 95, 97 K Kansas, etc. Co. v. Topeka, etc., Co., 135 Mass. 34 ... 125 Kaufman v. Cook, 114 111. 11 146 Keefe v. Fair-field, 184 Mass. 334 150, 157 Kelley v. AUin, 212 Mass. 327 102 Kelley v. Sullivan, 201 Mass. 34 164 Kelley v. Thompson, 181 Mass. 122 118 Kelley-Buckley Co. v. Cohen, 195 Mass. 585 61 Kelly v. Central Pacific R. R. Co., 74 Cal. 557 155 Kempson v. Kempson, 58 N. J. Eq. 94 35, 161 Kendall v. Hardy, 208 Mass. 20 172 Kennedy v. Owen, 136 Mass. 199 135 Kennedy v. Poole, 213 Mass. 495 95, 96 Kenney v. Consumers' Gas Co., 142 Mass. 417 29, 178 Kerr v. Shurtleff, 218 Mass. 167 99 Kershaw v. Merritt, 194 Mass. 113 15-74 Kershishian v. Johnson, 210 Mass. 135 170 CASES CITED XXI Killian v. Ebbinghans, 110 U. S. 668 23 King v. Cram, 185 Mass. 103 104 King t;. Dickeson, L. R. 40 Ch. Div. 596 142 King v. Wight, 155 Mass. 444 134, 135 Kingman v. Perkins, 105 Mass. Ill 59 Kingsbury v. Burrill, 151 Mass. 199 57 Kirsch v. Tozier, 143 N. Y. 390 62 Kneil v. Egleston, 140 Mass. 202 12 Koehl v. Burrell, 11 Ch. Div. 140 173 Kohn v. McNulta. 147 U. S. 238 33 Kolinsky v. Lynch, 201 Mass. 28 155 Kyle v. Kavanagh, 103 Mass. 356 91 L Labbe v. Bernard, 196 Mass. 551 207, 210 Labouchere t>. Dawson, L. R. 13 Eq. 322 130 Ladd v. Chase, 155 Mass. 417 21 Lamb v. Montague, 112 Mass. 352 210 Lamb v. Pierce. 131 Mass. 72 62 Lamson Consoi. etc. Co. . Prudential Fire Ins. Co., 171 Mass. 433 122 Lane v. Concord, 70 N. H. 485 175 Lane v. Newdigate, 10 Vesey 192 125 Lawton v. Estes, 167 Mass. 181 47 Leach v. Fobes, 11 Gray 506 Lechmere v. Earl of Carlisle, 3 P. Wms. 215 77 Lee v. Kirby, 104 Mass. 420 154 Leeds, etc. Co. v. Victor Talking Mach. Co., 213 U. S. 301 . 182 Leonard v. Bolton, 153 Mass. 428 105 Leverett v. Barnwell, 214 Mass. 105 58 Levi v. Worcester Consoi. St. Ry., 193 Mass. 116 ... 116, 173 Levin v. Goodwin, 191 Mass. 341 181 Lexington Print Works . Canton, 171 Mass. 414 ... 31, 179 Lilley v. Fifty Associates, 101 Mass. 432 71, 88 Lima v. Campbell, 219 Mass. 253 66, 110, 113 Lincoln v. Burrage, 177 Mass. 380 135, 140 Lincoln v. Gay, 164 Mass. 537 72, 73 Lipsky v. Heller, 199 Mass. 310 173 Little v. Phoenix Ins. Co., 123 Mass. 380 76 Livermore v. Boutelle, 11 Gray 217 105 Livingstone v. Murphy. 187 Mass. 315 Lloyd v. Rippingale, 1 Younge & Collyer, Escheq. 410 . . . 150 Lobdell v. Hayes, 4 Allen 187 83 Locke v. Homer, 131 Mass. 93 211 Lombard v. Morse, 155 Mass. 136 14 Long v. Athol, 196 Mass. 497 30, 92, 94 Longley v. Griggs, 10 Pick. 121 208 Longyear v. Hardman, 219 Mass. 405 163 Lothrop Pub. Co. v. Lothrop, etc. Co., 191 Mass. 353 ... 133 Loud v. Pendergast, 206 Mass. 122 47, 50, 141, 143 Loughery v. Huxford, 206 Mass. 324 194 XXII CASES CITED Lovejoy v. Bailey, 214 Mass. 134 19, 47, 112 Lowell Inst. for Sav. v. Lowell, 153 Mass. 530 138 Lowndes v. Beetle, 33 L. J. Ch. 451 168, 169 Lowther v. Lord Lowther, 13 Vesey 95 118 Lucas v. Barrett, 1 Greene (la.) 510 44 Lufkin v. Jakeman, 188 Mass. 528 48, 108 Lumley v. Wagner, I De Gex, McN. & G. 604 126 Lurie v. Pinanski, 215 Mass. 229 17, 49, 113 Lynch v. Union Inst. for Sav., 158 Mass. 394 170 M McCann r. Randall, 147 Mass. 81 . . 34, 36 McCarthy v. Wood Lumber Co., 219 Mass. 566 65, 66 McCurdy v. McCurdy, 197 Mass. 248 80 i McCusker v. Goode, 185 Mass. 607 139 McGurk v. Cronenwett, 199 Mass. 457 191 McKay v. Coolidge, 218 Mass. 65 204 MacKeown . Lacey, 200 Mass. 437 12, 13, 60 McMahon v. Brown, 219 Mass. 23 19 McMurtrie v. Guiler, 183 Mass. 451 45 McNamara v. Taft, 196 Mass. 597 175, 178 McSorley v. Larissa, 100 Mass. 270 46 Mactier v. Osborne, 146 Mass. 399 88 Macy v. Nantucket, 121 Mass. 351 22, 23 Maddison v. Alderson, L. R. 8 App. Cases 467 145 Manchester Ship Canal Co. v. Manchester Co., L. R. (1901) 2 Ch. 37 . 123 Manheim v. Woods, 213 Mass. 537 102 Mann v. Willey, 51 N. Y. App. Div. 169 178 Manning v. Mulrey, 192 Mass. 547 43, 50, 51 Mansfield v. Hodgdon, 147 Mass. 304 153 Mansfield v. Sherman, 81 Me. 365 117, 155 Mansfield v. Wiles, 221 Mass. 75 148 Mara v. Pierce, 9 Gray 306 63 Marble Co. v. Ripley, 10 Wallace 340 124 Marshall Engine Co. v. New Marshall Engine Co., 199 Mass. 546 203 Mass. 410 . 131, 132, 181, 186 Marshall v. Jaquith, 134 Mass. 138 15 Martell v. White, 185 Mass. 255 194, 197 Martin v. Barnes, 214 Mass. 29 14 Martin v. Drinan, 128 Mass. 515 135 Marvel v. Cobb, 200 Mass. 293 49, 50, 110, 112 Mason v. Mason, 140 Mass. 63 68 Mass. Inst. of Technology v. Boston Soc. Nat. History, 218 Mass. 189 . 136, 138, 140 Matthews v. Gadd, 5 So. Australia 129 82 Matthews v. Thompson, 186 Mass. 14 107 Maxham v. Day, 16 Gray 213 119 Mayer v. Gowland, 2 Dickens 563 82 Mayor v. Emmons, L. R. (1901) 1 K. B. D. 515 .... 125 Mayor of N. Y. v. Brady, 115 N. Y. 599 161 CASES CITED XXIII Meagher v. Hoyle, 173 Mass. 577 157 Medford & C. R. Co. v. Somerville, 111 Mass. 232 .... 124 Mellon v. Reed, 123 Perm. 1 77-79-80 Melrose v. Cutter, 159 Mass. 461 175, 177, 178 Mercantile Marine Ins. Co. v. Corcoran, 1 Gray 75 . . 43, 44, 49 Merchants' Legal Stamp Co. v. Murphy, 220 Mass. 281 .. 129 Merriam v. Boston, etc. Co., 117 Mass. 241 41 Merrifield v. Lombard, 13 Allen 16 175 Merrill v. Beckwith, 163 Mass. 503; 168 Mass. 72 . 9, 34, 37, 81,116 Messer v. The Fadettes, 168 Mass. 140 187 Metcalf v. Metcalf, 83 Me. 473 33 Metcalf v. Williams, 104 U. S. 93 Ill Metropolitan Elec. Co. t;. Gooder, L. R. (1901) 2 Ch. 799 . 129 Middlefield v. Church Mills Knitting Co., 160 Mass. 267 . 140 Middlesex Co. v. McCue, 149 Mass. 103 175 Miles v. Schmidt, 168 Mass. 339 122, 123 Milkman v. Ordway, 106 Mass. 232 31 Milldam Foundry v. Hovey, 21 Pick. 417 88 Miller v. Hyde, 161 Mass. 472 155 Milton v. Puffer, 207 Mass. 416 170 Minasian v. Osborne, 210 Mass. 250 196 Minot, petitioner, 164 Mass. 38 206 Mitchell v. Dowell, 105 U. S. 430 31 Mogul Steamship Co. v. McGregor, 23 Q. B. D. 598 ... 197 Mollineauxp. Powell, 3 P. Wms. 268 166,168 Moneyweight Scale Co. v. McBride, 199 Mass. 503; 223 U. S. 749 163 Montacute v. Maxwell, 1 P. Wms. 618 144 Montague v. Flockton, L. R. 16 Eq. 189 127 Moore v. Rawson, 199 Mass. 493 133, 202 Moore v. Sanford, 151 Mass. 285 75 Moors v. Ladenburg, 178 Mass. 272 36, 160, 162 Moran t. Dunphy, 177 Mass. 485 194 Morris v. Colman, 18 Vesey 437 127 Morris v. Griffiths, 26 Ch. D. 601 77 Morse v. Aldrich, 19 Pick. 449 135 Morse v. Stearns, 131 Mass. 389 20 Moseley v. Bolster, 201 Mass. 135 29 Motherway v. Wall, 168 Mass. 333 99 M. Steinert & Sons Co. v. Tagen, 207 Mass. 394 .... 25, 200 Muller v. Dows, 94 U. S. 444 36 Mullet v. Halfpenny, Prec. in Ch. 404 147 Mundy v. Jolliffe, 5 Mylne & Craig 167 146 Munroe v. Weir, 177 Mass. 301 86 Munsey v. Butterfield, 133 Mass. 492 131 Murphy v. Christian, etc. Pub. Co., 38 N. Y. App. Div. 426 137 Murphy v. Murphy, 217 Mass. 233 18, 120 Murphy v. Robinson, 214 Mass. 585 ^111 XXIV CASES CITED N Nash v. D'Arcy, 183 Mass. 30 8 Nash v. McCathern, 183 Mass. 345 205 Nash v. Minn. Title Ins. & Trust Co., 163 Mass. 574 ... 109 Nathan v. Nathan, 166 Mass. 294 13, 28 Naton v. McCall, 86 Me. 350 36 National Cash Register Co. v. Navy Cash Register Co., 99 Fed. Rep. 565 . 182 National Granite Bank v. Tyndale, 176 Mass. 547 .... 41 National Life Ins. Co. v. Pingrey, 141 Mass. 411 21 National Security Bank v. Batt, 215 Mass. 489 21 Nazro v. Long, 179 Mass. 451 8 Nelson v. Piper, 213 Mass. 531 23, 54, 57 Nelson v. Winchell, 203 Mass. 75 . . 47, 186, 187, 190, 191, 204 Neuberger v. Klein, 134 N. Y. 35 105 Newcomb v. Gibson, 127 Mass. 396 207, 208 Newcomb v. Norfolk St. Ry. Co., 179 Mass. 449 124 Newell v. Hadley, 206 Mass. 335 60, 202, 206, 210 New England Awl & Needle Co. v. Marlborough Awl & Needle Co., 168, Mass. 154 . 189 New England Cement Gun Co. v. McGivern, 218 Mass. 198 193,196 New England Mut. Life Ins. Co. v. Phillips, 141 Mass. 535 28, 29 New England Structural Co. v. Everett Distilling Co., 189 Mass. 145 . 70 New England Trust Co. v. Abbott, 162 Mass. 148 ... 121, 123 New Salem v. Eagle Mill Co., 138 Mass. 8 179 Newton Centre Trust Co. v. Stuart, 201 Mass. 288 ... 71, 73 New York Bank Note Co. v. Kidder Press Mfg. Co., 192 Mass. 391 .128 New York Life Ins. Co. v. Eggleston, 96 U. S. 572 ... 76 New York, N. H. & H. R. R. v. Martin, 158 Mass. 313 .. 8 New York, N. H. & H. R. R. v. York & Whitney Co., 215 Mass. 36 . 68 Nickerson v. Bridges, 216 Mass. 416 117, 143, 154,156 Nickerson v. Mass. Title Ins. Co., 178 Mass. 308 ... 72, 74 Nickerson v. Sweet, 135 Mass. 514 88 Niles v. Graham, 181 Mass. 41 88, 110 Noble v. J. Burnett Co., 208 Mass. 75 189, 204 Nolin v. Pearson, 191 Mass. 283 13 Norcross v. James, 140 Mass. 188 134, 135,139 Nordenfelt v. Maxim, Nordenfelt Guns & Ammunition Co., (1894) App. Cases 535 129 Norris v. Fox, 45 Fed. Rep. 406 152 North Ave. Sav. Bank v. Hayes, 188 Mass. 135 208 North Nat'l Bank v. Hamlin, 125 Mass. 506 209 Norton v. Piscataqua, etc. Ins. Co., Ill Mass. 532 .... 53 Nottingham Patent Brick & Tile Co. v. Butler, L. R. 16 Q. B. D. 778 138 Noyes v. Johnson, 139 Mass. 436 151 Nugent v. Cloon, 117 Mass. 219 37 CASES CITED XXV o O'Brien v. Boland, 166 Mass. 481 153, 154 O'Brien v. Goodrich, 177 Mass. 32 172 O'Brien v. McNeil, 199 Mass. 164 203 Old Colony R. Corp. v. Evans, 6 Gray 25 27, 154 Old Colony Trust Co. v. Chauncey, 214 Mass. 271 . . 148, 152 Old Colony Trust Co. v. Medfield, etc. Ry., 215 Mass. 156 . 41 Old Corner Book Store v. Upham, 194 Mass. 101 . . 131, 132 Old Dominion Copper Co. v. Bigelow, 188 Mass. 315; 199 Mass. 488; 203 Mass. 159 65, 103, 111, 162 Old Dominion Copper Co. v. Lewisohn, 136 Fed. Rep. 915; 148 Fed. Rep. 1020; 210 U. 8. 206 . 103 Oliver v. Gale, 182 Mass. 39 164 Order of the Golden Cross v. Merrick, 163 Mass. 374 ... 21 O'Shea v. Vaughan, 201 Mass. 412 Ill Otis v. Coffin, 7 Gray 511 96 Otis v. Freeman, 199 Mass. 160 47 Otis v. Prince, 10 Gray 581 101 P Page v. Franklin, 214 Mass. 552 30 Page v. Higgins, 150 Mass. 27 95 Page v. Young, 106 Mass. 313 30 Paine v. Metier, 6 Vesey 349 84 Palmbaum v. Magulsky, 217 Mass. 306 109 Palmer v. Clark, 106 Mass. 373 122 Palmer v. Lavers, 218 Mass. 286 126 Palmer v. Stebbins, 3 Pick. 188 130 Parke v. Boston, 175 Mass. 463 91 Parker v. American Woolen Co., 195 Mass. 591 . . 175, 177, 179 Parker v. American Woolen Co., 215 Mass. 176 . . 49, 180, 181 Parker v. Garrison, 61 111. 250 120 Parker v. New England Trust Co., 215 Mass. 226 .... 119 Parker v. Nickeraon, 137 Mass. 487 33 Parker v. Nightingale, 6 Allen 341 61 Parker v. Simpson, 180 Mass. 334 4, 32, 33,102 Parkin v. Thorold, 16 Beavan 59 148 Parkman v. Welch, 19 Pick. 231 105 Patterson v. Patterson, 197 Mass. 112 14 Patton v. KimbalL 70 111. 72 86 Pavesich v. New England Life Ins. Co., 122 Ga. 190 ... 184 Payson r. Lamson. 134 Mass. 593 160, 161 Peabody v. Norfolk, 98 Mass. 452 126, 128, 189 Pearl v. Harris, 121 Mass. 390 122 Pearmain v. Mass. Hosp. Life Ins. Co., 206 Mass. 377 . . 210 Pearson v. Pearson, 27 Ch. D. 145 130 Peck v. Conway, 119 Mass. 546 138,140 Peck v. Jenness, 7 How. 612 161 Peek c. Peek, 77 Cal. 108 45, 147 XXVI CASES CITED Pegge v. Skynner, 1 Cox Eq. 23 38 Pengall v. Ross, 2 Eq. Abr. 46 145 Penn v. Lord Baltimore, 1 Vesey Cases 444 35 Penniman v. Rodman, 13 Met. 382 123 Pennoyer v. Neff, 95 U. S. 714 37, 65 Perkins v. Coughlin, 148 Mass. 30 78 Perkins v. Perkins, 181 Mass. 401 146 Perry v. Hale, 143 Mass. 540 17 Peter v. Beverly, 10 Peters 532 . 78 Peters v. Bollestier, 3 Pick. 495 75 Peters v. Equitable Life Ass. Co., 196 Mass. 143 .... 203, 204 Peters v. Stone, 193 Mass. 179 135, 166 Phelps v. Sullivan, 140 Mass. 36 72 Phila. Ball Club v. Lajoie, 202 Penn. 210 127 Phillips v. Blatchford, 137 Mass. 510 19 Phillips v. Suffolk Sav. Bank, 219 Mass. 597 23 Pickett v. Walsh, 192 Mass. 572 191, 196, 197, 201 Pierce v. Chace. 108 Mass. 254 69 Pierce v. Eq. Life Ass. Co., 145 Mass. 56 25, 204 Pierce v. O'Brien, 189 Mass. 58 106 Pierce v. Woodward, 6 Pick. 206 130 Pike v. Waltham, 168 Mass. 581 56 Pingree v. Coffin, 12 Gray 288 34, 35, 148 Plant v. Woods, 176 Mass. 492 194, 199 Platt v. Squire, 12 Met. 494 68 Platt, v. Woodruff, 61 N. Y. 378 160 Plymouth v. Wareham, 126 Mass. 475 71 Poerther v. Russell, 33 Wise. 193 166 Pogrotsky v. Levatinsky, 218 Mass. 116 100 Pollard v. Photographic Co., L. R. 40 Ch. D. 345 .... 184 Polsey v. Newton, 199 Mass. 450 95 Pond v. Harris, 113 Mass. 114 122 Porter v. Stuart, 203 Mass. 46 Ill Porter v. Wakefield, 146 Mass. 25 15 Potter v. Howe, 141 Mass. 357 179 Potter v. Jacobs, 111 Mass. 32 146 Potterton v . Condit, 218 Mass. 216 181 Powell Duffryn Coal Co. v. Taff Vale Ry. Co., L.R. 9 Ch. App. 331, 124 Powers v. Raymond, 137 Mass. 483 32 Preston v. Newton, 213 Mass. 483 27, 163, 171 Preston v. West's Beach Corp'n, 195 Mass. 482 172 Prewitt v. Wilson, 103 U. S. 22 107 Prince v. Crocker, 166 Mass. 347 164 Proprietors Charles River Bridge v. Proprietors Warren Bridge, 7 Pick. 344 . 33 Prospect Park, etc. Co. v. Coney Island, etc. Co., 144 N. Y. 152, 124 Provident Inst. v. White, 115 Mass. 112 22 Putnam v. Grace, 161 Mass. 237 152 Putnam v. Misochi, 189 Mass. 421 207 Putnam v. Story, 132 Mass. 205 44 Pynchon v. Stearns, 11 Met. 304 165 16 CASES CITED XXVII Q Quinn v. Hayden, 219 Mass. 343 203 R Rackemann v. Riverbank Imp. Co., 167 Mass. 1 100 Ray v. Powers, 134 Mass. 22 207 Rayner v. Preston, L. R. 18 Ch. Div. 1 81, 84 Raynes v. Stevens, 219 Mass. 556 173 Reading Stone Works v. S. M. Howes Co., 201 Mass. 437 188, 204 Reardon v. Reardon, 219 Mass. 594 114 Record v. Littlefield, 218 Mass. 483 58, 156 Reed v. Boardman, 20 Pic, 441 205 Reed v. Paul. 131 Mass. 129 211 Reed v. Washington Ins. Co., 138 Mass. 572 122 Reed v. Whitney, 7 Gray 533 83 Rees v. Watertown, 19 Wall 121 40 Reggio v. Warren, 207 Mass. 525 90 Regis v. Jaynes, 191 Mass. 245 190, 191 Renals v. Cowlishaw, 9 Ch. D. 125 136, 138 Revere v. Revere Water Co., 218 Mass. 161 30, 113 Reynolds v. Davis, 198 Mass. 294 .... 193, 196, 197, 199, 201 Rice v. Boston & Worcester R. R., 12 Allen 141 56 Rice v. D'Arville, 162 Mass. 559 126 Rice v. Hale, 5 Gush. 238 38 Rice v. Merrill, 215 Mass. 419 110 Rice v. Southgate, 16 Gray 142 206 Rice v. Stone, 1 Allen 566 55 Richard's Appeals, 57 Penn. 105 178 Richards v. Dower, 64 Cal. 62 169 Richards v. Keyes, 195 Mass. 184 71 Richards v. Todd, 127 Mass. 167 18 Richardson Shoe Mach. Co. . Essex Mach. Co., 207 Mass. 219 . 55, 116 Richardson v. White, 167 Mass. 58 57, 58 Rideout v. Knox, 148 Mass. 368 180 Riverbank Improvement Co. v. Bancroft, 209 Mass. 217 . 139 Riverside Cotton Mills v, Alabama & G. Mfg. Co., 198 U. S. 188 . 162 Roberts v. Berry, 3 D., Me., & G., 284 150 Roberts v. Cambridge, 164 Mass. 176 119 Robertson v. Baldwin, 165 U. S. 275 126 Robinson v. Brown, 182 Mass. 266 177 Robinson v. Wiley, 188 Mass. 533 21, 55 Robinson v. Williams, 8 Met. 454 16 Rockport v. Elwell, 219 Mass. 287 177 Rogers v. Abbot, 206 Mass. 270 55 Rogers v. Boston Club, 205 Mass. 261 26 Rogers v. Challis, 27 Beavan 175 121 Rogers v. Dutton, 182 Mass. 187 74 XXVIII CASES CITED Rogers v. Hosegood, L. R. (1900) 2 Ch. 388 138 Rogers v. Shea, 219 Mass. 416 67 Rohan v. Hanson, 11 Gush. 44 205 Rolikatis v. Lovett, 213 Mass. 545 102, 202 Ropes v. Upton, 125 Mass. 258 130 Rudnick v. Murphy, 213 Mass. 470 26 Runkle v. Burrage, 202 Mass. 89 113 Russell v. American Bell Tel. Co., 180 Mass. 467 .... 74 Russell v. Webster, 213 Mass. 491 23 Rutherford v. Haven, 11 Iowa 587 149 Ryan t;. Mutual Ass'n, (1893) 1 Ch. 116 124 Ryder v. Wilcox, 103 Mass. 24 17 S Saco Brick Co. v. J. P. Eustis Mfg. Co., 207 Mass. 312 . . 8, 65 Sanborn v. Rice, 129 Mass. 387 142 Sanford v. Soule Piano & Organ Inv. Co., 164 Mass. 85 .. 75 Sarkisian e. Teele, 201 Mass. 596 143, 144 Savage v. Mason, 3 Cush. 500 136 Savannah Nat'l Bank v. Haskins, 101 Mass. 370 86, 87 Sawyer v. Cook, 188 Mass. 163 50 Sawyer v. Davis, 136 Mass. 239 180 Sawyer r. Hovey. 3 Allen 331 95 Schmidt v. Schmidt, 216 Mass. 572 47, 108 Schwoerer v. Boylston Market, 99 Mass. 285 136 Scott v. Hanson, 1 Simons 13 155 Searle v. Sawyer, 127 Mass. 491 167 Seavey v. Drake, 62 N. H. 393 147 Shapira v. D'Arcy, 180 Mass. 377 32 Shapira ;. Wildey Sav. Bank, 213 Mass. 498 93, 94 Sharon v. Sharon, 67 Cal. 185 11 Shaw v. Loud, 12 Mass. 447 212 Shelton v. Sears, 187 Mass. 455 , . . . . 42 Shepherd v. Shepherd, 196 Mass. 179 14, 104, 105 Sherry v. Perkins, 147 Mass. 212 174, 200 Short . Caldwell, 155 Mass. 57 37 Short v. Currier, 153 Mass. 182 93, 98 Sibley v. Nason, 196 Mass. 125 55 Sikes v. Work, 6 Gray 433 16 Silloway v. Columbia Ins. Co., 8 Gray 199 105 Simmons Med. Co. v. Simmons, 81 Fed. Rep. 163 128 Simonds v Simonds, 112 Mass. 157 79 Skinner v. Houghton, 92 Md. 68 84 Skinner v. Tirrell, 159 Mass. 474 209, 210 Skrine v. Jackson, 73 Ga. 377 40 Slater v. Gunn, 170 Mass. 509 25, 171, 172 Slater v. Rawson, 6 Met. 439 135 Sleeper v. Nicholson, 201 Mass. 110 151 Small v. Cahoon, 207 Mass. 359 164, 166 CASES CITED XXIX Smith . Burgess, 133 Mass. 511 64 Smith, etc. Co. v. Canady, 213 Mass. 122 149, 156 Smith v. Everett, 126 Mass. 304 18, 30 Smith v. Green, 197 Mass. 16 152, 153 Smith v. Hatch, 46 N. H. 146 145 Smith v. Kenney, 213 Mass. 6 101 Smith v. Price, 214 Mass. 298 143 Smith v. Smith, 148 Mass. 1 25 Smyth v. Sprague. 149 Mass. 310 72 Snell v. Atlantic F. & M. Ins. Co., 98 U. S. 85 94, 97 Snell v. Dwight, 120 Mass. 9 47 Snow v. Alley, 156 Mass. 193 75 Snow v. Blount, 182 Mass. 489 47 Snow v. Boston Blank Book Mfg. Co,. 153 Mass. 465 . . 49, 51 Snow v. Hutchins, 160 Mass. Ill 69, 72 Snow v. Wheeler, 113 Mass. 179 195 Solomon v. Hertz, 40 N. J. Eq. 400 128 Somerly v. Buntin, 118 Mass. 279 27 Somes v. Skinner, 3 Pick. 52 68 Southbridge Sav. Bank v. Mason, 147 Mass. 500 167 Spelman v. Aldrich, 126 Mass. 113 Spooner v. Spooner, 155 Mass. 52 12 Sprague v. Kimball, 213 Mass. 380 45 Springfield v. Conn. River R.R. 4 Cush. 63 177 Spurr v. Benedict, 99 Mass. 463 91, 93 Spun- v. Scoville, 3 Gush. 578 34 Squire v. Learned, 196 Mass. 134 56,117 Standard Elevator Co. v. Crane Elevator Co., 56 Fed. Rep. 718 . 182 Standard Paint Co. v. Trinidad Asphalt Mfg. Co., 220 U. S, 446 . 186 Staples v. Mullen, 196 Mass. 132 118, 149 Starkie v. Richmond, 155 Mass. 188 173 Stearns v. Swift, 8 Pick. 532 69 Stebbins v. Palmer, 1 Pick. 71 55 Stetson v. Day, 51 Maine 434 167 Stetson v. Moulton, 140 Mass. 597 ..." 209 Stevens v. Pierce, 151 Mass. 207 74 Stevens v. Rockport Granite Co., 216 Mass. 486 . 25, 159, 174, 176, 181 Stewart v. Finkelstone, 206 Mass. 28 47, 137, 141, 143 Stewart v. Joyce, 201 Mass. 301; 205 Mass. 371 . 50, 51, 98, 100, 111 Stiff v. Ashton, 155 Mass. 130 71 Stimson v. Whitney, 130 Mass. 591 70 Stockbridge v. Mixer, 215 Mass. 415 32 Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45 . 33, 42, 90 Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 315 . 97 Stockwell v. Shalit, 204 Mass. 270 105, 108 Stone v, Hackett, 12 Gray 227 58 Stone v. Reed 152 Mass. 179 21 Stone v. Sargent, 220 Mass. 445 Ill XXX CASES CITED Stowe v. U. S., 19 Wallace 13 69 Stratton Co. . Stratton, 206 Mass. 117 103 Strickland v. Fitzgerald, 7 Gush. 530 119 Strout v. United Shoe Mach. Co., 215 Mass. 116 41, 50 Sturtevant v. Jaques, 14 Allen 523 151 Sunter v. Sunter, 190 Mass. 449; 198 Mass. 137 51, 204 Suter v. Matthews, 115 Mass. 253 28 Swaine v. Great Northern Ry. Co., 4 De Gex, Jones & Smith 211 . 178 Szathmary v. Boston & Albany R.R. Co., 214 Mass. 42 . 169, 170 Taft v. Henry, 219 Mass. 78 108 Tallmadge v. East River Bank, 26 N. Y. 105 142 Tarbell v. Bowman, 103 Mass. 341 92, 96 Taunton v. Taylor, 116 Mass. 254 177 Taylor V. Butterick, 165 Mass. 547 89 Taylor v. Lynch, 5 Gray 49 56 Taylor v. Page, 6 Allen 86 60 Thaxter v. Sprague, 159 Mass. 397 149 Thayer v. Daniels, 110 Mass. 345; 113 Mass. 129 ... 44, 60, 212 Third Nat'l Bank v. Skillings, 132 Mass. 410 22 Thissell v. Schillinger, 186 Mass. 180 77 Thomas v. Howell, 34 Ch. Div. 166 81 Thompson v. Barry, 184 Mass. 429 99, 100 Thompson v. Gould, 20 Pick. 134 84 Thompson v . Heywood, 129 Mass. 401 167 Thorpe v. Brumfitt, L. R. 8 Ch. App. 650 174 Thurston v. Hamblin, 199 Mass. 151 204 Tilley v. Thomas, L. R. 3 Ch. App. 61 150 Tillotson v. Rose, 11 Met. 299 206 Title Guarantee and Trust Co. v. Haven, 196 N. Y. 487 . 210 Tobin v. Larkin, 183 Mass. 389 148, 149, 156 Toledo, etc. Railroad Co. v. Penn. Co., 54 Fed. 746 .... 40 Tomlinson v. Bury, 145 Mass. 346 207, 208 Tompkins v. Halleck, 133 Mass. 32 184 Topliff v. Jackson, 12 Gray 565 18 Tower v. Appleton Bank, 3 Allen 387 87 Townley v. Bidwell, 14 Vesey 591 82 Townsley v. Chaplin, 12 Allen 476 40 Tracy v. Lincoln, 145 Mass. 357 72 Traiser v. Doty Cigar Co., 198 Mass. 327 186 Trask v. Sturges, 170 N. Y. 482 79 Traveler Shoe Co. v. Koch, 216 Mass. 412 146, 147 Trecy v. Jefts, 149 Mass. 211 110 Trego v. Hunt, (1896) App. C. 7 130, 132 Tucker v. Howard, 128 Mass. 361 169, 170, 172 Taft v. Henry, 219 Mass. 78 108 Tufts v. Charlestown, 2 Gray 271 134 Tulk v. Moxhay, 11 Beavan 571 61, 136 CASES CITED XXXI Turner v. Revere Water Co., 171 Mass. 329 125 Turnquist v. Harmon, 219 Mass. 560 75 Tuttle v. Batchelder & Lincoln Co., 170 Mass. 315 .... 109 Tuttle v. Standish, 4 Allen 481 87 Tyler t;. Court of Registration, 175 Mass. 71 34, 37 Tyler v. Odd Fellows, etc., 145 Mass. 134 71 U Ungley v. Ungley, L. R. 5 Ch. D. 887 147 Union Bank v. Pool, 143 Mass. 203 21 Union Trust Co. v. Olmstead, 102 N. Y. 729 36 United Shoe Mach'y Co. v. Kimball, 193 Mass. 351 . 126, 130 United Shoe Mach'y Co. v. La Chapelle, 212 Mass. 467 . 129 United States v. Insley, 130 U. S. 263 51 United States v. Parkhurst-Davis Mercantile Co., 176 U. S. 317 162 United Zinc Cos. v. Harwood, 216 Mass. 474 ... 56, 103, 112 Utermehle v. Norment, 197 U. S. 40 89 V Vann v. Burr, 151 Mass. 386 66 Van Ness v. Boiney, 214 Mass. 340 69 Varney v. Baker, 194 Mass. 239 163 Vass v. Wales, 129 Mass. 38 122 Vaughan v. Bridgham, 193 Mass. 392 174 Vegelahn v. Guntner, 167 Mass. 92 . . 191, 195, 199, 200, 201 Vernon v. Stephens, 2 P. Wins. 66 150 Von Arnim v. American Tube Works, 188 Mass. 515 . . 50, 163, 164,203 Vonderbank v. Schmidt, 44 La. Ann. 264 130 W * Wadsworth v. Williams, 100 Mass. 126 106 Wakeham v. Barker, 82 Cal. 46 126 Walker v. Brooks, 125 Mass. 241 54 Walker v. Cronin, 107 Mass. 555 193, 194, 195, 19 Walsh v. Walsh, 116 Mass. 377 37 Walworth v. Cassassa, 219 Mass. 20 163 Warner v. Morrison, 3 Allen 566 212 Warren v. Pazolt, 203 Mass. 328 101 Warren v. Warren Thread Co., 134 Mass. 247 185, 187 Washburn v. Miller, 117 Mass. 376 171 Washburn v. White, 197 Mass. 540 46 Wasserman v. McDonnell, 190 Mass. 326 58 Watson v. Sutherland, 5 Wallace 74 173 Watson v. Watson, 128 Mass. 152 68 Webber v. Landrigan, 215 Mass. 221 137 Webber Lumber Co. v. Shaw, 189 Mass. 366 211 XXXII CASES CITED Webster v. Webster, 180 Mass. 310 133 Weeks v. Parsons, 176 Mass. 570 207 Weener v. Brayton, 152 Mass. 101 185, 186 Welch v. Boston, 208 Mass. 326 22 Weller v. Smeaton, 1 Brown Ch. 572 175 Wells v. Calnan, 107 Mass. 514 84 Wentworth v. Manhattan, 216 Mass. 374 117 Wenz v. Pastene, 209 Mass. 359 43, 45, 64 West . Camden, 135 U. S. 507 101 Westall v. Wood, 212 Mass. 540 45, 121 West Ham Board v. E. London Co., (1900) 1 Ch. 624 . . . 167 Westlake v. Dunn, 184 Mass. 260 71, 99 West Publishing Co. v. Lawyers' Co-op. Pub. Co., 53 Fed. Rep. 265 183 W. Galligan Co. v. Casey, 205 Mass. 26 61 Wheeler . Sage, 1 Wallace 518 47 Wheelock v. Noonan, 108 N. Y. 179 169 Whitcomb v. Converse, 119 Mass. 38 . 19 White v. Coleman, 127 Mass. 34 . 59 White v. Kenney, 157 Mass. 12 180 White v. Middlesex R. R., 135 Mass. 216 122 White v. Patten, 24 Pick. 324 69 White v. White, 169 Mass. 52 18 Whitfield v. Benit, 2 P. Wms. 240 166 Whiting v. Burkhardt, 178 Mass. 535 29 Whitman v. Mclntyre, 199 Mass. 436 203 Whitman v. Porter, 107 Mass. 522 19, 207 Whitney v. Metallic Wire Screen Mfg. Co., 187 Mass. 557 . 45 Whitney v. Stearns, 11 Met. 319 38 Whitney v. Union Ry. Co., 11 Gray 359 136 Whitney v. Wheeler, 116 Mass. 490 15 Whittenton Mfg. Co. v. Staples, 164 Mass. 319 140 Whitwood Chemical Co. v. Hardman, L. R. (1891) 2 Ch. 416 127 Wiggins v. Brand, 202 Mass. 141 18 Wilkinson v. Stitt, 175 Mass. 581 31 Willcutt & Sons Co. v. Driscoll, 200 Mass. 110 . 191, 195, 199 Williams v. Carty, 205 Mass. 398 42, 97, 145, 146 Williams v. Farrand, 88 Mich. 473 130 Williams v. Hershaw. 11 Pick. 79 16 Wills v. Stradling, 3 Vesey, 378 146 Wilson v. Bryant, 134 Mass. 291 13 Wilson v. Jackson, 204 Mass. 432 47,112 Wilson v. Martin-Wilson, etc. Co., 149 Mass. 24: 151 Mass. 515 . 26,34 Wing v. Deans, 214 Mass. 546 69 Winslow v. Nayson, 113 Mass. 411 30 Winston v. Westfeldt, 22 Ala. 760 162 Witters v. Globe Sav. Bank, 171 Mass. 425 35 Wolfboro Loan & Banking Co. v. Rollins, 195 Mass. 323 . 53 Wolmershausen v. Gullick, L. R. (1893) 2 Ch. 514 .... 207 Wood v. Boynton, 64 Wise. 265 92 CASES CITED XXXIII Wood v. Humphrey, 114 Mass. 185 122 Woodard v. Woodard, 216 Mass. 1 44 Woodward . Spurr, 141 Mass. 283 12 Woodward v. Worcester, 121 Mass. 245 . . ' 176 Wooldridge v. Norris, L. R. 6 Eq. 410 206 Worthington v. Waring, 157 Mass. 421 159, 193, 198 York . Flaherty, 210 Mass. 35 104 Young t. Haviland 215 Mass. 120 164 CITATIONS AMES= Ames's Cases on Equity, Parts I- VI. POMEROY=Pomeroy's Equity Jurisprudence. Massachusetts cases are cited through .Volume 220. NOTE The explanatory note after a given case cited, is not intended to be a summary of the case, or necessarily to state the facts found therein. It is intended that such a note shall call attention to something referred to in the case, either directly or indirectly, that makes the case in point as a citation. CHAPTER I. ORIGIN AND NATURE OF 'EQUITY A. HISTORICAL. B. EFFECT OF EQUITY GROWTH ON COMMON LAW. C. AN OUTLINE OF EQUITY. A. HISTORICAL In the reign of William the Conqueror (1066-1087) the principal law courts in England 1 were : 1. The King's Court (Curia Regis) 2. Those of itinerant justices appointed by the crown to hear pleas in shire towns. 3. The local folk and manor courts. The last two of these were by the time of Edward II (1307-1326) largely superseded by the courts of "justices in eyre" (ar) appointed from the three more important English superior courts, to wit: 1. The King's Court (which after Henry IPs time (1159-1184) had only judicial functions.) 2. The Court of Common Bench (or Common Pleas) at Westminister. Magna Charta had provided that "common pleas shall no longer follow the King," and, thereafter, contro- versies about land and other matters purely civil were heard at Westminister, for the transitory nature of the King's Court had proven a hardship. 1 See Pomeroy, Sections I and II. EQUITY AND ITS REMEDIES 3. The Court of Exchequer originally con- cerned only with revenue matters. In addition to the Common Law courts there was the great equity tribunal, the Chancery Court, headed by the Chancellor. There had been a Chancellor before and after the Conqueror, but originally he had little judicial power; he was merely the King's chief adviser. The foregoing superior courts remained in some form until the Judicature Act of 1873 (effective November 1, 1875) when they and the Court of Chancery were all consolidated into the "Supreme Court of Judica- ture." The organization provided for this court was: SUPREME COURT OF JUDICATURE HER MAJESTY'S HIGH HER MAJESTY'S COURT OF JUSTICE COURT OF APPEAL* i till I PROBATE, QUEEN'S COM. DIVORCE CHANCERY BENCH PLEAS EXCHEQUER AND Div. Div. Div. Div. ADMIRALTY I I I Div. CONSOLIDATED IN 1880 INTO QUEEN'S BENCH DIVISION.* 2 From the Court of Appeal, an appeal lies in some matters to the House of Lords. 8 For the present organization of the English courts, see "A History of English Legal Institutions" by A. T. Carter. Butter- worth & Company, London, publishers. ORIGIN AND NATURE OF EQUITY The present Chancery Division deals primarily with cases involving equitable subject matter, although law and equity are administered concurrently in every court. Thus, injunctions and the remedy of specific performance are now granted in any of the divisions of the King's (formerly Queen's) Bench. The great reason for the growth of the equity sys- tem was the inelasticity of common law procedure, and the inadequacy of common law remedies. The actions at early common law, (that is, prior to 1285) were: 1. Real Actions (very restricted) [Debt Ex contractu \ Covenant 2. Personal Actions ' Ex delicto f Trespass \ Detinue 3. Replevin (very restricted) Precedents for all writs were originally kept in the "Registra Brevium," an office connected with the Chancery. An applicant for a writ applied to the Chancellor's Clerk, who searched the precedents, and if he found none, no action could be begun. By 13 Edward I (1285) "a case falling under like law (i. e., like the foregoing in which writs might be issued) and requiring like remedy" might have a writ from Chancery. This statute* (13 Edward I, chap. 1, sec. 24) resulted in the actions of Trespass on the Case, Trover and Assumpsit, the most flexible of modern common law actions. Even then the remedies of the Common Law were very limited. One desiring a remedy not in the fore- going groups was obliged to appeal directly to the Crown. At first such petitions were heard by the King and the Select Council, but by reign of Edward I 4 Sometimes called the Statute of Westminister. Had this statute l>een more liberally construed there would perhaps have been less demand for equity jurisdiction, as we have it today. See Kerr on Equity Jurisprudence 11 and 12. EQUITY AND ITS REMEDIES (1272-1307) it had become a custom to refer such matters to the Chancellor, a member of the Council who from early times had certain judicial powers. Such was the origin of the Court of Chancery (and the law of equity.) Equity jurisdiction by the Chan- cellor was permanently and definitely established by Edward III in the twenty-second year of his reign (1348) in a decree authorizing jurisdiction in all cases requiring the exercise of the King's prerogative of grace. The Chancellor's authority was therefore general and not dependent on a writ, as at common law. This distinction never existed in America, where both courts derive jurisdiction from constitu- tions or statutes. Present Procedure. Reformed Procedure. To-day England and most American states (beginning with New York in 1848) make practically no distinction between procedure in legal and equitable causes or between tribunals administering law and equity. 5 In another class of states, and the Federal Courts, there is still maintained different procedure, but the administration of both systems is in the same judges, who in one term hear law cases and in another equity, as in New England States and in many Southern States. In a third class of states, there are provided separate judges for law and equity (in the latter case "Chan- cellors"), as in Alabama, Delaware, New Jersey, Tennessee and Mississippi. Massachusetts Equity Jurisdiction History Stated in Parker v. Simpson, 180 Mass. 334. See also Pomeroy, sections 311-321. 5 See reference to English Courts, ante page 3. ORIGIN AND NATURE OF EQUITY At the time of the adoption of the Massachusetts Constitution (1780), Massachusetts courts had no equity powers, except to grant relief in case of mort- gages and to chancer bonds. Holbrook v. Bliss, 9 Allen 69. Massachusetts equity jurisdiction came largely through these Statutes: 6 In the Supreme Court: St. 1817, ch. 87, St. 1823, ch. 140, St. 1827, ch. 88, Rev. Sts. (1836) ch. 81, sec. 8, Rev. St. (1836,) ch. 118, sec. 43, St. 1855, ch. 194, St. 1856, ch. 38, St. 1857, ch. 214, St. 1877, ch. 178, over trusts under deeds and wills and to enforce specific performance. over disputes between partners joint tenants and tenants in common. to give relief against waste and nuisance. over all trusts. over accounting (abolishing common law accounting.) over cases of fraud, over cases of mistake and accident. full equity jurisdiction, where no plain, adequate and com- plete remedy at law. (now Revised Laws, ch. 159, sec. 1) full jurisdiction over cases "cognizable under general principles of equity jurispru- dence." 6 This table is {riven here because it is believed it may be useful for reference, so that one may know whether any case he reads in the Massachusetts reports is a precedent today or whether its effect is lost by the limited jurisdiction of equity at the time the decision was made. In considering the value of cases in Massa- chusetts as precedents, it should be remembered that the fore- going statutes were strictly construed and that before St. 1877, ch. 178, the jurisdiction was limited to cases where there was no adequate remedy at law. EQUITY AND ITS REMEDIES In the Superior Court: St. 1883, ch. 223, gave full equity jurisdiction con- current with Supreme Court (except in certain statu- tory equitable remedies going beyond general equity jurisdiction. See Revised Laws, ch. 159, sec. 2, and Baldwin v. Wilbraham, 140 Mass. 459.) In the Probate Court: Revised Laws, ch. 162, sec. 5, in administration of estates and trusts. Revised Laws, ch. 148, sec.l, in specific performance. St. 1915, ch. 151, for the recovery of legacies. To-day the Massachusetts courts have the broadest equity powers. B. EFFECT OF EQUITY GROWTH ON COMMON LAW. As a branch of the law, equity to-day is a system of fixed principles. The extent of equity jurisdiction to-day is not determined by the injustice of legal rules or the inadequacy of legal remedies, but by whether or not the facts of any case are included under any of the settled principles constituting the present system of equity jurisprudence. 7 The principles upon which equity jurisprudence is based, however, are equitable. The effect of their growth is seen in common law development in Massa- chusetts, for example, in 7 It is important to remember that t hese principles are as fixed as those of common law. Laymen generally, and courts and lawyers frequently, use the word "equitable" in a broad sense re- ferring to the nature of conduct. But as a system of jurispru- dence "equity" is not synonymous with "aequitas." Man-made law, intended to be of general application, must frequently fail to afford relief against particular unusual cases that involve hardship. A man may make an "inequitable" distribution of his property by will; but he has a right to, and equity does not concern itself with his act. It must not be inferred, however, that equity jurisdic- tion has ceased to develop. There are various equitable doc- trines still in a constructive stage, as, for example, the doctrine of unfair competition. ORIGIN AND NATURE OF EQUITY I. Legal Rules (a) Permitting suits on lost instruments. Fales v. Russell, 16 Pick. 315. (6) Relieving against forfeitures and penalties in bonds. Holbrook v. Bliss, 9 Allen 69. (c) Changing the effect of a seal. (Formerly payment of a sealed instrument couldfnot be pleaded unless instrument had been returned or a release under seal given) Pomeroy sec. 70. (d) Allowing payment, without forfeiture, of overdue mortgages. Holbrook v. Bliss, supra. II. Statutes 8 concerning (d) Trusts; See Mass. Rev. Laws, ch. 147. (6) Recording and priorities; See Mass. Rev. Laws, ch. 127, sec. 1-6. (c) Administration of estates and guardian- ships; See Mass. Rev. Laws, ch. 137-145. Mass. St. 1913, ch. 307. (d) Married Women's property; See Mass. Rev. Laws, ch. 153. (e) Admission of Equitable Defenses; See Mass. Rev. Laws, ch. 173, sec. 28 and 32. (/) And many others. 8 In England, the Judicature Act provides that wherever there in any conflict or variance between the rules of equity and those of the common law with reference to the same matter, the rules of equity shall prevail. EQUITY AND ITS REMEDIES III. Equitable Defenses. Formerly, when the plaintiff was entitled to recover in ;an action at law and the defendant had some equitable right in the subject matter, the defendant was obliged to have the plaintiff enjoined in equity from prosecuting his suit at law. It is now provided by statute in many jurisdictions that the defendant may allege as a defense to an action at law any facts which would entitle him in equity to be absolutely and unconditionally relieved against the plaintiff's claim or cause of action or against a judgment recov- ered by the plaintiff in such action. Mass. Rev. Laws, ch. 173, sec. 28. Nazro v. Long, 179 Mass. 451 (writ of entry; tenant set up that he was an equitable assignee of an agreement to purchase the property). Ferguson v. Jackson, 180 Mass. 557 (former statute was not applicable to district or police courts) 9 . Such a defense may not be made if the defendant's claim has already been adjudicated adversely in equity. Saco Brick Co. v. J. P. Eustis Mfg. Co., 207 Mass. 312. A party having an equitable defense may still resort to an injunction restraining the other party from suing at law, but one who sets up an equitable defense and fails may not then seek an injunction against a suit at law. N. Y., N. H. & H. R. R. v. Martin, 158 Mass. 313. Nash v. D'Arcy, 183 Mass. 30 Gargano v. Pope, 184 Mass. 571. J. P. Eustis Mfg. Co. v. Saco Brick Co., 198 Mass. 212. 9 But see Mass. St. 1913, ch. 307, extending this right. ORIGIN AND NATURE OF EQUITY 9 The statute further provides that the plaintiff, in reply to a defense alleged by the defendant, may set up any facts which would "entitle the plaintiff to be absolutely and unconditionally relieved in equity against such defence." 10 Revised Laws, ch. 173, sec. 32. In Massachusetts, an action may, in the discretion of the court, be changed, by amendment, from law to equity and vice versa, at any time before final decree. Revised Laws, ch. 159, sec. 6; ch. 173, sec. 52, as amended by Mass. St. 1911, Chap. 275. Merrill v. Beckwith, 168 Mass. 72. (Bill had been ordered dismissed, but no decree.) C. AN OUTLINE OF EQUITY A practical, though not wholly accurate test of what is comprised in Equity Jurisprudence is found in these three general divisions (suggested in Merwin's Equity, Chapter II) : I. EQUITABLE SUBJECT MATTER; II. EQUITABLE REMEDIES; III. EQUITABLE PARTIES. Equitable Subject Matter At common law, in a suit concerning property, the plaintiff, in order to recover, must show that he has some legal title 11 to the land, contract, note or chattel in question. But there may be in property an interest in another 10 So, if a defendant railroad plead release under seal of all claims, in defence of suit for negligence, plaintiff might then reply, alleging that release was obtained by fraud. 11 "Legal title" simply means such a title as the common law courts recognized. 10 EQUITY AND ITS REMEDIES than the holder of the legal title (e. g. the title of a beneficiary under a trust in a will) which interest, although it has no recognition at common law, may be very real. This interest is the equitable right or title, originally recognized exclusively in courts of equity jurisdiction. Further consideration of this subject belongs for the most part under "Trusts," and is therefore not given in this volume. Equitable Remedies. The remedies of the common law courts (except in the case of such special remedies as mandamus, quo warranto, etc.) are confined to awarding pecuniary damages, and to the recovery of specific real estate (by a real action) or of personal property (by re- plevin. 12 ) There is no way, for instance, by a suit at common law, to prevent injury to property, to compel perfor- mance of a contract duty or to rectify a written instru- ment which clearly does not express the intent of the parties to it. The wide scope of the remedies afforded by the equity courts is seen in this classification (see Pomeroy, sec. 112) : (a) Declarative remedies, (declaring or confirm- ing some right, title or property of plain- tiff"); (6) Restorative remedies, (restoring enjoyment of some right, title or property, as by man- datory injunction) ; (c) Preventive remedies, (enjoining threatened injuries); 12 And at common law, and in some jurisdictions today, by detinue. 18 For a shorter classification see Merwin, sec. 36-42. 14 But the right declared must be one to be affected by the parti- cular relief sought in the bill. Hanson v. Griswold, 221 Mass. ORIGIN AND NATURE OF EQUITY 11 (d) Remedies of Specific Performance, (com- pelling one to do an act which he has con- tracted to do) ; (e) Remedies of Reformation, Correction or Re-execution (of instruments) ; (/) Remedies of Recission (of transactions) or Cancellation (of instruments) ; (0) Remedies of Pecuniary Compensation, (1) By recovery of judgment; (2) By ordering payment of money from particular fund (as in foreclosure of mortgages) ; (3) By distributing money among claim- ants (as in receivership of part- nership) ; (h) Remedy of Accounting', (1) Remedies of Conferring or Removing Official Functions, (as of trustees) ; 0') Remedies of Establishing or Destroying Personal Status, (as by divorce. Remedies largely statutory. See Sharon v. Sharon, 67 Cal. 185.) The foregoing remedies are frequently concurrent. 1 * Cases are brought in equity, and not at common law, when one seeks these particular remedies which only the equity court can confer; and this is true whether the primary right to be enforced is equitable or legal. 18 15 The several more important remedies are separately con- sidered in subsequent chapters. 16 For example, trespass upon a legal estate in land may be the basis of a suit at law for damages. But if one seeks the equitable remedy of injunction to protect from threatened continued trespass on that legal estate, he must seek it solely in a court of equity. 12 EQUITY AND ITS REMEDIES CHAPTER II. EQUITABLE PARTIES. A. SUITS BETWEEN HUSBAND AND WIFE. B. SUITS BETWEEN PARTNERS. C. CERTAIN SUITS BETWEEN PARTIES HAVING OR CLAIMING INTERESTS IN A COMMON SUBJECT MATTER. Suits between certain parties are not entertained at Common Law, but exclusively in Equity. There are three principal classes of equitable parties. A. SUITS BETWEEN HUSBAND AND WIFE. At common law, husband and wife might not sue each other, nor might a married woman hold the legal title to property or sue anyone. In some states husband and wife may to-day sue each other at law, under statutes. In Massachusetts, such suits are still forbidden at law, and, except as hereinafter set forth, may not be brought in equity; though a mar- ried woman may contract with and sue persons other than her husband and may hold property as if sole. 1 1 A promissory note from husband to wife, or vice versa, is void and is not made valid by a transfer to a third person. Woodward v. Spurr, 141 Mass. 283; Kneil v. Egleston, 140 Mass. 202. But when a husband borrows money from his wife and gives a promis- sory note to a third person, who then transfers to the wife, (or where the maker marries the payee) the note is good and may be trans- ferred to a third person for collection at law, or upon death of hus- band may be paid from his estate to her. This depends upon the original validity of the contract. Spooner v. Spooner, 155 Mass. 52. Crosby v. Clem, 209 Mass. 193 (a mortgage). MacKeown vs. Lacey, 200 Mass. 437 (maker married payee) EQUITABLE PARTIES 13 Mass. Rev. Laws, ch. 153, sees. 1-9. Caldwell v. Nash, 190 Mass. 507. Wilson v. Bryant, 134 Mass. 291 (wife can- not sue husband on note payable to third person). Fowle v. Torrey, 135 Mass. 87 (wife can- not sue husband's partnership). Nolin v. Pearson, 191 Mass. 283. (not an equity case, but a general discussion by Braley, J.) Atkins v. Atkins, 195 Mass. 124 (and cases cited) MacKeown v. Lacey, 200 Mass. 437. Suits permitted in equity between husband and wife are: 1. To set aside ante-nuptial contracts procured by fraud (Nathan v. Nathan, 166 Mass. 294); to compel carrying out of ante-nuptial or post-nuptial contracts in marriage settle- ments, or to protect rights under such settle- ments; (see dictum in Frankel v. Frankel, 173 Mass. 214). 2. To protect a wife's equitable interest from en- croachment by her husband (and probably vice versa). Ayer v. Ayer, 16 Pick. 327 (suit by wife, beneficiary under a trust, against the trustee and her husband, who was wrong- fully receiving income from trustee). Atlantic Bank v. Tavener, 130 Mass. 407 (Quaere as to whether loan to him may create equity in her favor). Holmes v. Winchester, 133 Mass. 140 (see dictum). 3. To recover property obtained from the one by 14 EQUITY AND ITS REMEDIES the other by fraud or coercion; or detained against fhe owner's will. Atkins v. Atkins, 195 Mass. 124 (recon- veyance ordered of land conveyed by trustee to wife through a conduit, for which she failed to pay as agreed). Frankel v. Frankel, 173 Mass. 214 (wife against husband for money fraudulently obtained from her. Decree for repay- ment). Lombard v. Morse, 155 Mass. 136 (husband against wife for property obtained from him, an insane person, the day before marriage). Martin v. Barnes, 214 Mass. 29 (mortgages and notes). Patterson v. Patterson, 197 Mass. 112 (furniture). Shepherd v. Shepherd, 196 Mass. 179 (dis- cussion of when wife is creditor of hus- band). A husband or wife may not recover at law or in equity of the other, or of a partnership of which the other is a member, or of the other's estate, for money loaned (Clark v. Patterson, 158 Mass. 388. But as to other personal property see Patterson v. Patterson, supra). But see (in Holmes v. Winchester, 133 Mass. 140) an important dictum to the effect that a promise of a husband to give his wife certain stock, for a val- uable consideration which had passed, could be spe- cifically enforced. 4. To follow and recover property entrusted by one EQUITABLE PARTIES 15 to the care of the other and fraudulently in- vested by the other as his (or her) own; 1 Bresnihan v. Sheehan, 125 Mass. 11 (hus- band's wages, entrusted to wife, invested by her) Kershaw v. Merritt, 194 Mass. 113 (equit- able replevin by wife to recover property pledged by her husband) But a wife has no claim against her husband if she entrusts money to him without evidence as to the terms on which it was entrusted. Jacobs v. Hesler, 113 Mass. 157. 5. To obtain her equity to a settlement from her own property where a husband came (before present statutes) into equity to reduce her 1 In Massachusetts a man may not (except of articles enumerated in Revised Laws, ch. 153, sec. 3, and except of gifts causa mortis, which see infra) make a valid gift or transfer of personal property directly to his wife. (But see Porter v. Wakefield, 146 Mass. 25.) An attempted gift is still his property and may be attached as such by his creditors or demanded by him of third persons to whom she may have entrusted it (Brown v. Brown, 174 Mass. 197) ; but such an attempted gift may be so far valid as to give the wife, if she has had separate custody of the property during life, a right to the property at the death of her husband, as against his heirs or executors, but not as against his creditors. (Marshall v. Jaquith, 134 Mass. 138.) A husband may make a gift to his wife (valid, except as to his creditors) through a third person; and a transfer in this manner is not voluntary and is good as against his creditors if in payment of money loaned him by her or as compensation for her release of dower. (Brown v. Brown, supra; Atlantic Bank v. Tavener, 130 Mass. 407; Holmes v. Winchester, 133 Mass. 140.) He may even make her his agent to take money to a bank to be deposited and then drawn by her as her own. (Brown v. Brown, xupra. But cf. Spelman c. Aldrich, 126 Mass. 113.) A husband may make a gift causa mortis directly to his wife (Whitney v. Wheeler, 116 Mass. 490) in Massachusetts and by statute may now convey land directly to her. Mass. St. 1912, ch. 304, 16 EQUITY AND ITS REMEDIES personal property to possession. Equity com- pelled provision for a wife (even if bankrupt husband's assignee came in), though at com- mon law he had legal title to the property. Davis v. Newton, 6 Met. 537. B. SUITS BETWEEN PARTNERS. At common law one partner may not sue the other 3 on a partnership matter, except as hereinafter set forth. Capen v. Barrows, 1 Gray 376 (breach of a covenant in partnership agreement). Suits at Law. But if all debts are paid and accounts closed, leav- ing an ascertained balance due one partner from the other, the one partner may sue the other in an action at law for it. Robinson v. Williams, 8 Met. 454. Sikes v. Work, 6 Gray 433 (and in Mass. even though the amount due has not been ascertained). Nor is it necessary in Massachusetts that all accounts due the firm shall have been collected, if a tender is made to assign to the other partner the outstanding accounts. Williams v. Hershaw, 11 Pick. 79. And, too, a partner may sue another in an action at law on a contract with him, binding personally, though relating to the firm affairs. 8 Nor may one partnership sue another where one person is a member of both firms. Cole v. Reynolds, 18 N. Y. 74. EQUITABLE PARTIES 17 Chamberlain v. Walker, 10 Allen 429. Ryder v. Wilcox, 103 Mass. 24 (dictum at page 29. Personal note for money bor- rowed to pay obligation to firm). Or he may sue in tort for fraudulently inducing him to enter the partnership. Perry v. Hale, 143 Mass. 540. Suits in Equity. All suits between partners involving the partnership must be in equity. The more important are for: 1. Establishment of Partnership. A partnership may exist where the parties have given no consideration to the nature of their business relation. Equity may declare the partnership. Emerson v. Atkinson, 159 Mass. 356. 2. Regulation of Partnership. Equity will restrain one partner, upon the suit of another, from violating the partnership agreement, from misapplying the firm property, or from frau- dulently acquiring an advantage with relation to a firm lease or agency. Holmes v. Darling, 213 Mass. 203. Lurie v. Pinanski, 215 Mass. 229. 3. Dissolution of Partnership. A partnership may be dissolved in equity where there is a definite term, and some partner does not agree to an earlier dissolution which justice may seem. to require. 18 EQUITY AND ITS REMEDIES Smith v. Everett, 126 Mass. 304 (where one member was led into firm by false repre- sentations of other) Puchards v. Todd, 127 Mass. 167 (fraudu- lent representations; the results) Arnold v. Brown, 24 Pick. 89 (habitual drunkenness of partner) Parsons on Partnership, sec. 358. A partnership at will is treated as dissolved from the date of filing a bill for accounting and dissolution. Wiggins v. Brand, 202 Mass. 141. 4. Final Accounting and Settlement. This may be granted where there is a dissolution by ending of the term, by court decree, by mutual agreement, or after death of one partner. Wiggins v. Brand, 202 Mass. 141 (rights of dissolving partner discussed) Freeman v. Freeman, 136 Mass. 260 (one partner dead) Topliff v. Jackson, 12 Gray 565 (relief in equity sought in action of contract) Murphy v. Murphy, 217 Mass. 233 (to compel administrator of deceased partner to release interest in saloon, under agree- ment made inter vivos) An equity court has full power to appoint a receiver, order claims proved, assets sold and proceeds of sale distributed to creditors and partners, even though the firm afterwards turns out to be insolvent. White v. White, 169 Mass. 52. The limitation of the period for bringing suits for EQUITABLE PARTIES 19 an accounting begins to run from the termination of the partnership. McMahon v. Brown, 219 Mass. 23. 5. Contribution between Partners. A partner who has paid more than his share of partnership debts is entitled in a suit in equity to recover full contribution from his solvent co-partners within the court's jurisdiction. Whitcomb v. Converse, 119 Mass. 38. Whitman v. Porter, 107 Mass. 522. One may have an accounting against his partner when the firm has ceased to do business, though it is not actually dissolved. Lovejoy v. Bailey, 214 Mass. 134. But a bill in equity should be for a general 4 account- ing and not for contribution as to a single item paid by the plaintiff. Phillips v. Blatchford, 137 Mass. 510. C. CERTAIN SUITS BETWEEN PERSONS HAVING OR CLAIMING INTERESTS IN A COMMON SUBJECT MATTER, WHICH INTERESTS FALL SHORT OF CONSTITUTING A PARTNERSHIP, ARE BROUGHT IN EQUITY. 1. Suits between co-owners. In some states co-owners of real estate, not co- partners, may still have partition proceedings in 4 But quaere as to whether all partners must be joined as defend- ants. Bowker v. Torrey, 215 Mass. 547. 20 EQUITY AND ITS REMEDIES equity. Co-owners of chattels may do this in Massachusetts. Mass. Rev. Laws, ch. 159, sec. 3, cl. 4 (of chattels. Passed in 1891) Blood v. Blood, 110 Mass. 545 (no juris- diction before above statute) 2. Suits where there are three or more parties having "distinct rights or interests which cannot be justly and definitely decided and adjusted in one action at law. 1 ' Mass. Rev. Laws, ch. 159, sec. 3, cl. 3. In an action at law several plaintiffs in the same suit must have a joint interest in the subject matter. So must several defendants. In equity, persons having distinct interests in the subject matter may be joined as parties plaintiff or defendant in certain causes where a judgment be- tween two of the parties would leave open to one or both a controversy with a third party. (Bill by administrator against numerous holders of notes of a series, to determine validity, dependent on same facts in each case.) Carr v. Silloway, 105 Mass. 543. 3. Suits in which a stakeholder summons several persons claiming a fund, debt or property from the same source, for the purpose of determining to whom he is liable. Such a suit is known as interpleader. Cobb v. Rice, 130 Mass. 231 (custodian of bonds against former owner's wife and bankruptcy trustees to determine ambig- uity as to ownership) Morse v. Stearns, 131 Mass. 389 (legatee incorrectly named) EQUITABLE PARTIES 21 Order of the Golden Cross v. Merrick, 163 Mass. 374 (to determine to whom benefit fund should be paid) Bodman v. Am. Tract Society, 9 Allen 447 (ambiguity as to legatee, where two of same name) Union Bank v. Pool, 143 Mass. 203 (mort- gagee, after foreclosure, as to surplus) Robinson v. Wiley, 188 Mass. 533 (by attorney against his client and client's alleged assignee) Cogswell v. Newburyport Inst. for Sav., 165 Mass. 524 (by administrator against bank and claimant) The object of interpleader is not to protect a person against double liability but against double vexation on account of one liability. Fairbanks v. Belknap, 135 Mass. 179, at 184. National Security Bank v. Batt, 215 Mass. 489. One may not bring interpleader, a. If he claims any part of the fund himself; Ladd v. Chase, 155 Mass. 417 (an executor who was also residuary legatee.) But see Cogswell v. Newburyport Inst. for Savings, supra. b. Or if not a disinterested stakeholder; National Life Ins. Co. v. Pingrey, 141 Mass. 411 (where an insurance company might be liable to two persons). Conn. Mutual Life Ins. Co. v. Cook, 219 Mass. 222 & . Stone v. Reed, 152 Mass. 179. 8 See page 22. 22 EQUITY AND ITS REMEDIES c. Or if the several claims are distinct in origin; Third Nat'l Bank v. Skillings, 132 Mass. 410. Macy v. Nantucket, 121 Mass. 351 (against two towns to see in which plaintiff is properly taxed). Welch v. Boston, 208 Mass. 326 (overturn- ing, as a precedent, Forest River Lead Co. v. Salem, 165 Mass. 193, in which boundary between Salem and Marblehead was determined on interpleader in tax case). d. Or if there has been judgment against the stakeholder on one claim. Provident Inst. v. White, 115 Mass. 112. The first decree in interpleader is that the defend- ants interplead, after which plaintiff may not be heard. A final decree then determines to which claimant the fund or property belongs and directs its delivery by the plaintiff. Houghton v. Kendall, 7 Allen 72. Conn. Mutual Life Ins. Co. v. Cook 5 , 219 Mass. 222 (see motion for decree therein). By statute in many jurisdictions a stakeholder, if sued at law or in equity, may cause to be summoned to defend the suit any adverse claimant, in which case the ownership of the fund is determined equit- ably. This is sometimes called "statutory inter- pleader." 5 In this case the claimants alleged by the petitioner were an insured and an assignee of the insured. The latter's answer claimed that the company was obligated to him in the matter, apart from the assignment. The plaintiff, by failing to join issue, admitted the truth of the answers. The plaintiff paid the insurance money into court and moved it be relieved from liability and the defend- ants ordered to interplead. Bill was dismissed because there was a claim which could not be adjudicated between the defendants alone. EQUITABLE PARTIES 23 Mass. Rev. Laws, ch. 173, sees. 37, 38. Mass. St. 1908 ch. 590, sec. 50. Russell v. Webster, 213 Mass. 491 (bill by alleged donee against stakeholder of stock and a claimant). Brierly v. Equitable Aid Union, 170 Mass. 218. Nelson v. Piper, 213 Mass. 531. Phillips v. Suffolk Savings Bank, etc., 219 Mass. 597. "A bill in the nature of a bill in interpleader" 6 is, strictly speaking, one in which a plaintiff who has some equitable interest in the subject matter seeks to establish his interest against some one of two or more claimants of some other interest. Killian v. Ebbinghans, 110 U. S. 568. Aleck v. Jackson, 49 N. J. Eq. 507; 2 Ames 45. See cases in note, 2 Ames 46. 6 The distinction in Massachusetts between strict interpleader and "bills in the nature of bills of interpleader" has not always been observed. Nor are the strict requisites of either important where jurisdiction may be brought within ch. 159, sec. 3, clause 3, of the Revised Laws. Hammond v. Putnam, 110 Mass. 232 (incorrectly called "in the nature of a bill of interpleader"); Macy v. Nantucket, 121 Mass. 351. 24 EQUITY AND ITS REMEDIES CHAPTER III. SOME FEATURES OF EQUITY JURISDICTION AND PROCEDURE. A. PLAIN, ADEQUATE AND COMPLETE REMEDY AT LAW. a. Its absence a basis of relief in equity. b. Its presence as a defense to equitable pro- cedure. c. Its presence in some cases immaterial. d. As affecting procedure. B. THE JURY IN EQUITY. C. EQUITY ACTS in personam, NOT in rem. A. "PLAIN, ADEQUATE AND COMPLETE REMEDY AT LAW." Definition: An adequate remedy at law has been defined as one "as practical and efficient to the ends of justice and its prompt administration as the rem- edy in equity." a. Its absence a basis of relief in equity. The inadequacy of legal remedies was one cause ot the rise of equity jurisdiction. In respect to some subject matter, parties, and remedies, that juris- diction is exclusive, as has been seen. In respect to other subject matter, where the estate, title or in- terest in dispute is legal and the law courts afford a remedy similar in form to that of the equity courts (as money damages) but where the method of reach- ing this remedy under law procedure is not, upon SOME FEATURES OF EQUITY JURISDICTION 25 the facts of a case, plain, adequate and complete, then jurisdiction at law and in equity is concurrent. Jones v. Newhall, 115 Mass. 244 (1874) 1 (excellent discussion). Pierce v. Equitable Life Assurance Soc., 145 Mass. 56 (equitable accounting on tontine policy because of complexity of accounts). Smith v. Smith, 148 Mass. 1 (relief in nui- sance is not to determine legal right, but because of inadequacy of legal remedy). Or the inadequacy of legal remedies may con- sist in the necessity at law of bringing actions against various people, or successive actions against the same person. In certain cases, the jurisdiction in equity is based OD the desirability of avoiding a multiplicity of suits at law. The equity court may settle the entire controversy in one suit. 2 Slater v. Gunn, 170 Mass. 509 (trespass). Boston & Maine R. R. v. Sullivan, 177 Mass. 230 (to avoid successive actions against same person). Carr v. Silloway, 105 Mass. 543 (to avoid numerous actions against various persons). M. Steinert & Sons Co. v. Tagen, 207 Mass. 394 (repeated malicious acts in a strike, though no evidence of damages). Stevens v. Rockport Granite Co., 216 Mass. 468 (nuisance). But equity does not take jurisdiction on this 1 This case was decided before the Massachusetts courts had full equity jurisdiction. See table on Page 5. 2 See subdivision C under Equitable Parties, Chapter II. 26 EQUITY AND IT REMEDIES ground, where there are different persons named as defendants, whose obligations are several. Rogers v. Boston Club, 205 Mass. 261 (suit by receiver against club members for dues owed). Or the greater adequacy of equitable relief over legal in a particular case may result from the greater flexibility of the equitable remedies. An attach- ment of a law court reaches only property capable of being taken on execution; while equity, acting in personam, is able to reach property of such a nature that it cannot be taken on execution. Wilson v. Martin- Wilson, etc. Co., 149 Mass. 24 (creditor's bill to reach interest in patent, owned by a foreign corporation doing business here). b. Its presence as a defense to equitable procedure. Conversely, equity does not ordinarily take juris- diction of a matter where the relief afforded in a law 3 court is plain, adequate and complete.* This is true, 1. Where some remedy at law, open to the plain- tiff, would afford the same relief as that sought in * But where the legal remedy sought is certiorari (a remedy at law) it is a defense that there is an adequate remedy in equity. Rudnick v. Murphy, 213 Mass. 470. 4 This principle is as old as English Chancery jurisdiction, is in the U. S. Judiciary Act of 1789 (now 36 U. S. Stats, at Large 1163), was formerly expressly stated in the Massachusetts Statutes (see Public Statutes, chap. 151, sec. 2), but is omitted in the Revised Laws, which (in chap. 159) afford juridiction in equity of all mat- ters cognizable under the general principles of equity jurisprudence. It is expressly made a condition of equitable jurisdiction under some statutes, however. See Mass. St. 1914 ch. 778, relative to injunc- tions in industrial disputes. SOME FEATURES OF EQUITY JURISDICTION 27 the bill, or one equally adequate under the particular facts. Farrar v. Pillsbury, 217 Mass. 330 (failure to pay off a mortgage, as agreed). Adams v. Messinger, 147 Mass. 185 (general discussion). Greenhood v. MacDonald, 183 Mass. 342 (will not lie to restrain collection of taxes). Allen v. Hunt, 213 Mass. 276 (equity will not determine what could be determined by probate accounting). Preston v. Newton, 213 Mass. 483 (owner of land illegally taken by municipality has remedy at law). Thus, while equity will always compel specific performance of proper contracts to convey land, art treasures, shares in close corporations, patents, etc., it will leave the agreed vendee to his action for dam- ages at law, as an adequate remedy, if the subject matter is ordinary personal property, government or municipal bonds, and (except in some jurisdictions, as England and Massachusetts) other shares com- monly dealt in, on the market. Old Colony R. Corp. v. Evans, 6 Gray 25 (land). * Somerby v. Buntin, 118 Mass. 279 (patents). Leach v. Fobes, 11 Gray 506 (Mass, rule on stocks). Clark v. Flint, 22 Pick. 231 (ordered as to other personal property where purchase money is paid but vendor becomes insol- vent before delivery). 2. Where the facts of the particular case are not embraced in any equitable doctrine, because the 28 EQUITY AND ITS REMEDIES relief of the law courts, by a wholly different kind of remedy, has always been regarded as adequate. N. E. Mut. Life Ins. Co. v. Phillips, 141 Mass. 535. c. Its presence in some cases immaterial. Today, in courts of general equity jurisdiction (such as Massachusetts, since 1877) relief may be had in certain cases either at law or in equity, at the election of the plaintiff. Billings v. Mann, 8 156 Mass. 203 (deed obtained by fraud. Remedy by writ of entry at law or cancellation in equity). Nathan v. Nathan, 166 Mass. 294 (fraud in ante-nuptial contract). d. As affecting procedure. While courts of general equity powers may enter- tain bills relating to matters in their nature within the concurrent jurisdiction of such courts, yet the usual practice is to remit parties in such cases to their remedy at law, provided that be adequate; but independent of statute restrictions, the objection is a matter of equitable discretion rather than of jurisdictional right (and therefore not always avail- able on demurrer). 6 Jones v. Newhall, 115 Mass, at page 252 (citing English cases, which see). Suter v. Matthews, 115 Mass. 253 (fraud). The failure of the defendant to raise in the plead- ings the objection that there is an adequate remedy 5 Compare Boardman v. Jackson, 119 Mass. 161. 6 Prior to the general equity jurisdiction in Massachusetts (in 1877), the objection was properly raised by demurrer. Jones v. Newhall (supra). Clark v. Flint, 22 Pick. 231. SOME FEATURES OF EQUITY JURISDICTION 29 at law, or his waiver of the question in argument, does not give a court in equity jurisdiction over a case which because of the subject matter has no standing in equity. Moseley v. Bolster, 201 Mass. 135 (parti- tion will not be made in equity in Mass- achusetts, though incidental questions may be there determined). N. E. Mut. Life Ins. Co. t>. Phillips, 141 Mass. 535 (to determine whether certain persons have been legally chosen directors of a corporation). Kenny v. Consumers Gas Co., 142 Mass. 417 (information by Attorney-General at relation of private individual cannot be used to enjoin exercise of public func- tions). Dunham v. Presby, 120 Mass. 285 (bill for accounting of partnership profits in illegal trading). Cox v. Maiden and Melrose Gas Light Co., 199 Mass. 324 (mandamus is proper remedy to compel corporation to perform quasi-public duty). But such failure may give the court jurisdiction if the subject matter is of a kind that equity may assume jurisdiction of on any facts; or may give the court jurisdiction of persons not otherwise under its control. Fourth National Bank v. Mead, 214 Mass. 549 (rule stated). Detroit v. Detroit Citizens' St. Ry. Co., 184 U. S. 368 (good discussion). Creely v. Bay State Brick Co., 103 Mass. 514 (nuisance). Whiting v. Burkhardt, 178 Mass. 535 (bill by assignee of mortgagee's interest, under 30 EQUITY AND ITS REMEDIES insurance policy, to recover amount of policy from company). Allen v. Hunt, 213 Mass. 276 (cases col- lected). And in such cases the objection, though properly pleaded, will be deemed to be waived, unless con- tended for at the hearing. Page v. Young, 106 Mass. 313. Bauer v. International Waste Co., 201 Mass. 197. An equity court having obtained jurisdiction over a cause for any purpose, may retain it for all pur- poses and proceed under the prayer for general relief to a determination of all matters in issue, 7 although a court of law could grant the same relief. This is for the purpose of preventing a multiplicity of suits. Winslow v. Nayson, 113 Mass. 411 (bill for injunction to prevent trespass retained to award damages). Long v. Athol, 196 Mass. 497 (bill for can- cellation of contract; recovery for work and labor). Smith v. Everett, 126 Mass. 304 (bill for cancellation of partnership articles en- tered into by fraud; repayment of money ordered). Page v. Franklin, 214 Mass. 552 (damages for contractual breach in suit to compel mortgage discharge). But if the plaintiff fails to show his cause within equitable jurisdiction at all, the court will not deal with the strictly legal rights and remedies involved, but will dismiss the bill without prejudice, or (in 7 But see Revere v. Revere Water Co., 218 Mass. 161. SOME FEATURES OF EQUITY JURISDICTION 31 Massachusetts) may permit the action to be changed by amendment into a suit at law. Mitchell v. Dowell, 105 U. S. 430. Mass. Rev. Laws, ch. 159, sec. 6; ch. 173, sec. 52; as amended by St. 1911 ch. 275. Cromwell v. Norton, 193 Mass. 291 (case changed from equity to law). But where a plaintiff, entitled to relief in equity, brings his bill, but, pendente lite, there is such a change in circumstances as to make equitable relief inappropriate, the court will retain the bill and award damages, if these are appropriate. Lexington Print Works v. Canton, 171 Mass. 414. In a case where the plaintiff, seeking specific per- formance, discovers that before the bill was brought, the defendant has made specific performance impossi- ble, the court may retain the bill and award damages. Milkman v. Ordway, 106 Mass. 232. In controversies concerning property, equity does not take jurisdiction (apart from statute) of cases involving less than one hundred dollars, unless there is some peculiar value in the property aside from its intrinsic worth. Chapman v. Banker & Tradesman Co., 128 Mass. 478 8 (equitable attachment by "statutory creditor's bill." Less than one hundred dollars. No jurisdiction). Wilkinson v. Stitt, 175 Mass. 581 (juris- diction taken in matter of a prize cup worth sixty dollars, which had sentimental value to bicycle club). 8 Decided prior to St. 1884, ch. 285 (now part of Revised Laws, ch. 159, sec., 3 cl. 7). 32 EQUITY AND ITS REMEDIES Mass. Rev. Laws, ch. 159, sec. 3, cl. 7 (giv- ing jurisdiction in certain cases). B. THE JURY IN EQUITY. In the Federal Courts there is no constitutional right to trial by jury in equity or admiralty; although the right is guaranteed in suits at common law by Article VII of Amendments to U. S. Constitution. In Massachusetts, Article 15 of the Declaration of Rights gives the right to jury trial in "all contro- versies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practised." This exception is now held to include only such equity cases as were within Chancery jurisdiction in England at the time of the adoption of the Massa- chusetts Constitution in 1780. 9 In such cases there is no right to jury trial in Massachusetts. Parker v. Simpson, 180 Mass. 334, at 344. -.Shapira t>. D'Arcy, 180 Mass. 377. Therefore, in cases in which statutes have given relief not included within general equity jurisprudence in 1780, the defendant at least has a right to trial by jury. Powers v. Raymond, 137 Mass. 483 (statu- tory creditor's bill). Stockbridge v. Mixer, 215 Mass. 415 (right to jury trial as to essentially legal issues in the case, but not as to those purely equitable). It will be deemed that a jury has been waived unless the demand for it is "seasonably asserted." 10 9 The exception includes also, of course, divorce and probate cases, and the extraordinary writs (such as mandamus, etc.). 10 In an equity case, the jury may be claimed within 10 days after the replication is filed. Stockbridge v. Mixer, 215 Mass. 415. SOME FEATURES OF EQUITY JURISDICTION 33 Dole v. Wooldredge, 142 Mass. 161. Parker v. Nickerson, 137 Mass. 487 (where a master had already been appointed). When there is a right to jury trial, issues framed to cover the disputed points may be submitted to the jury, instead of the whole case. Proprietors Charles River Bridge v. Prop. Warren Bridge, 7 Pick. 344. Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45. When there is no constitutional right to jury trial, the court under statutes may, in its discretion, at the request of a party, submit issues to a jury; and the verdict will be deemed as conclusive as a verdict of a jury at law. Franklin v. Greene, 2 Allen 519. Kohn v. McNulta, 147 U. S. 238. Parker v. Simpson, 180 Mass. 334 (jury trial denied because over one hundred exhibits, etc.). Mass. Rev. Laws., ch. 159, sees. 36-38. Dexter v. Codman, 148 Mass. 421 (verdict set aside). In jurisdictions other than Massachusetts, it is generally the rule that the findings of a jury on issues of fact are only advisory. Kohn v. McNulta, supra. Metcalf v. Metcalf, 85 Me. 473. But the Supreme Court may revise the discretion of the Superior Court in refusing to frame issues, where there is no constitutional right, but will not do so unless the party asking revision shows the case to be one more satisfactorily tried before a jury than a judge. 34 ^t EQUITY AND ITS REMEDIES Culbert v. Hall, 181 Mass. 24. C. EQUITY ACTS IN PERSONAM, NOT IN REM." Apart from statutes, decrees in equity do not operate of themselves to transfer rights or titles of property nor do they operate against the whole world. They direct parties to the action to do or not to do certain specific acts; the penalty for disobe- dience is punishment for contempt. Dillon v. Heller, 39 Kansas 599; Ames, 14. McCann v. Randall, 147 Mass. 81. Wilson v. Martin- Wilson etc. Co., 151 Mass. 515. Where the parties are within the jurisdiction. A suit in equity cannot ordinarily be maintained in the court in which it is brought against a resident of that or any other jurisdiction unless he is found within the jurisdiction and served with process there. Spurr v. Scoville, 3 Gush. 578. Merrill v. Beckwith, 163 Mass. 503; Ames 19. Hart v. Sansom, 110 U. S. 151; Ames 11 (cloud on title). Pingree v. Coffin, 12 Gray 288, at Page 305. See note page 21, Ames; see also Harris v. Graham, 110 Fed. Rep. 896. If the court has jurisdiction of the parties, it is usually immaterial that the property in issue lies outside of the jurisdiction of the court. Equity may order specific performance of an agreement relating to such property. 11 For other meaning of these phrases, see the admirable discussion by Holmes J. in Tyler v. Court of Registration, 175 Mass. 71. SOME FEATURES OF EQUITY JURISDICTION 35 Penn v. Lord Baltimore, 1 Vesey 444. Pingree v. Coffin, 12 Gray 288, at page 304. Adams v. Messinger, 147 Mass. 185. It may order the cancellation of a deed and the re-conveyance of foreign property. 12 Johnson v. Scott, 205 Mass. 294 (recission of purchase of Maine land, for fraud; decree that Maine title was bad). Gardner v. Ogden, 22 N. Y. 327; Ames 6. It may enjoin against the prosecution of a suit in another jurisdiction. Kempson v. Kempson, 58 N. J. Eq. 94; Ames 26. Dehon v. Foster, 4 Allen 545. Carson v. Dunham, 149 Mass. 52. It may enjoin against the commission of a tort in another state. Great Falls Mfg. Co. v. Worcester, 23 N. H. 462. Alexander v. Tolleston Club, 110 111. 65. Carteret v. Petty, 2 Swanston 323, Ames 21 (not decreed because of practical diffi- culty). An equity court will usually refuse to foreclose a mortgage on foreign land, as a matter of discretion. u But the conveyance of foreign land by a master appointed by the court need not be recognized by the courts where the land is situated. Fall v. Eastin, 215 U. S. 1, and note therewith. The conveyance of land by the owner under an order of the court is, how- ever, regarded as voluntary and therefore usually recognized by a foreign court. Witters v. Globe Sav. Bk., 171 Mass. 425. 36 EQUITY AND ITS REMEDIES Naton v. McCall, 86 Me. 350 (Nova Scotia mortgage). The jurisdiction to foreclose undoubtedly exists, and is frequently exercised in the case of railroad mortgages covering property a part of which is with- out the jurisdiction. Muller v. Dows, 94 U. S. 444. Union Trust Co. v. Olmstead, 102 N. Y. 729; Ames 23 (railroad in part in Penn sylvania). Where the principal parties are without the juris- diction. Where the subject matter (res) is within the juris- diction and the parties without, the court frequently finds a way of making a decree affecting the subject matter. McCann v. Randall, 147 Mass. 81 (equitable attachment of U. S. Treasury draft, payable to non-resident, found here unin- dorsed in custody of agent. Injunction against agent, who if he transfer may be compelled to pay, himself) 13 Gahm v. Wallace, 206 Mass. 39 (attachment of non-resident's real estate without ser- vice on him. Decree that if he should not pay in thirty days property be taken on execution). And statutes are common permitting the passing of the title where the property is within the juris- diction but the defendant is outside and served with 11 In Moors v. Ladenburg, 178 Mass. 272, where it was sought to enjoin a proceeding at law in Massachusetts, service on a non-resident defendant's Massachusetts attorney was held to be service on the defendant. The court asserts that "When you have a res within the jurisdiction of the court, the court may deal with it although it cannot reach the person of the owner." This statement is appar- ently broader than the case. SOME FEATURES OF EQUITY JURISDICTION 37 process by publication only. In such a case the jurisdiction may only affect the particular property and not bind the individual so as to be recognized by courts of other jurisdictions. Pennoyer v. Neff, 95 U. S. 714 (discussion of "due process of law")- Dillon v. Heller, 39 Kan. 599; Ames 14. Arndt v. Griggs, 134 U. S. 316. Short v. Caldwell, 155 Mass. 57. Tyler v. Court of Registration, 175 Mass. 71. Biggert v. Straub, 193 Mass. 77 (in rem, under a statute). Restraining suits at law. The supremacy of equitable over legal rules is shown in the fact that equity may restrain, by in- junction, either party to a law suit, either within or without the jurisdiction, from further proceeding with the suit or with a particular defense. 14 How certain decrees are made operative. When one otherwise liable to be ordered by a court of equity is a minor or insane, the only decree which the court will make, in the absence of statute, 15 is 14 See Chapter VIII herein. 15 In Massachusetts the court may appoint a person to make a conveyance for an incompetent or absent trustee, or require a guar- dian to make it, and a decree may vest a title without a conveyance. Rev. Laws ch. 147, sees. 4-6 (title of new trustee vests by virtue of appointment) Rev. Laws ch. 147, sec. 17 (a trustee to complete a sale) Merrill v. Beckwith, 163 Mass. 503; Amea 19. (not to apply to non-resident agreed vendee not served with process) Mass. St. 1910, ch. 376 (title vests without conveyance where party directed fails to obey decree) Walsh v. Walsh, 116 Mass. 377 Felch v. Hooper, 119 Mass. 52 Nugent v. Cloon, 117 Mass. 219 Eastern Bridge etc., Co. v. Worcester Auditorium Co., 216 Mass. 426. 38 EQUITY AND ITS REMEDIES that the person perform the decree when the dis- ability is removed. Pegge v. Skynner, 1 Cox Eq. 23; Ames 6 (paralytic). Whitney v. Stearns, 11 Met. 319. The plaintiff, if he fears that the defendant is about to leave the state, may obtain the seldom used writ of ne exeat regno to prevent his departing with- out furnishing security. Rice v. Hale, 5 Gush. 238. Griswold v. Hazard, 141 U. S. 260. THE MAXIMS 39 CHAPTER IV. THE MAXIMS. 1 A. EQUITY WILL NOT SUFFER A WRONG TO BE WITH- OUT A REMEDY. B. EQUITY FOLLOWS THE LAW. C. WHERE THE EQUITIES ARE EQUAL, THE LAW WILL PREVAIL. D. WHERE INTERESTS ARE PURELY EQUITABLE AND IN OTHER RESPECTS EQUAL, PRIORITY IN TIME GIVES THE BETTER EQUITY. E. EQUITY TREATS THAT AS DONE WHICH OUGHT TO BE DONE. F. HE WHO SEEKS EQUITY MUST DO EQUITY. G. HE WHO COMES INTO EQUITY MUST COME WITH CLEAN HANDS. H. EQUITY AIDS THE VIGILANT. Underlying the doctrines of equity and at the basis of this system of jurisprudence are certain general principles called maxims. They are principally useful today because they show the spirit of equity. Among them are: A. EQUITY WILL NOT SUFFER A WRONG TO BE WITHOUT A REMEDY. This does not refer to moral wrongs (as ingratitude) but only to such wrongs as are coupled with legal duties and to such remedies as are consistent with 1 For a particularly full treatment see Eaton on Equity, Ch. Ill, and Merwin, Ch. VI. 40 EQUITY AND IT REMEDIES the laws of the land and authorized by the principles and practises of courts of equity. Thus equity will afford relief, where a statute or constitution creates a new right, equitable in nature, but provides no method for its enforcement. Hunter v. Boston, 218 Mass., 535 (bond with no statutory method of enforcing). Gibson v. Supervisors, 80 Cal. 363. Gilchrist v. Railroad Co., 58 Fed. Rep. 708 (lien with no method in statute of enforc- ing). But equity will not on this ground interfere in contested elections, for example, as these are matters over which equity has no control apart from statute. Dickey v. Reed, 78 111. 262. Skrine v. Jackson, 73 Ga. 377. The mere fact that a legal remedy has failed under the particular circumstances to afford the relief, is not ground for the application of this maxim. Heine v. Commissioners, 19 Wall. 655. Rees v. Watertown, 19 Wall. 121 (where a holder of bonds had brought mandamus against city officials to force payment but failed because there was no officer who could be served with process.) B. EQUITY FOLLOWS THE LAW. I. Equity follows legal rules when legal rights are in question in equity courts. Thus, it requires a. Compliance with statutory prerequisites to the validity of instruments; Townsley v. Chapin, 12 Allen 476 (deed). THE MAXIMS 41 b. Conformity to legal rules, (as where a wife or her assignee has claims against a husband or his insolvent estate); Fowle v. Torrey, 135 Mass. 87. Nat'l Granite Bank v. Tyndale, 176 Mass. , 547. Heard v. Stanford, Cases temp. Talbot, 173. 2 c. Application of same rules of construction and interpretation of instruments as at law; Hedges v. Dixon County, 150 U. S. 182 (case of municipal bonds invalid from lack of authority). Merriam v.Boston, etc., Co., 117 Mass. 241. d. Adherence to same rules of evidence, and of procedure; Hennessy v. Preston, 219 Mass. 61 (spe- cial contract must be proven in bill to reach and apply in same way as in action of contract). Anthony v. Valentine, 130 Mass. 119 (plaintiff cannot show by oral evidence that defendant agreed not to collect a certain note except on certain conditions. Strout v. United Shoe Mach. Co., 215 Mass. 116 (in the allowance of amend- ments). e. Distribution of legal assets, as at law. Jones v. Arena Pub. Co., 171 Mass. 22. Old Colony Trust Co. v. Medfield etc. Railway, 215 Mass. 156. 2 A wife's personal property formerly became her husband's on marriage. In Heard v. Stanford, a woman had some property, owed a debt, married, and then died before the debt was paid. The creditor was without remedy, as at law the husband was not liable after her death to her creditors, although he was during coverture. 42 EQUITY AND IT REMEDIES But where fraud or mistake is the foundation of a bill to reform an instrument or is a defence to a bill specifically to enforce, the rule against the vary- ing of the terms of a written instrument by parol evidence is of necessity abrogated. Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45. Williams v. Carty, 205 Mass. 398. And in equity a conveyance absolute on its face may be shown to be a mortgage. Campbell v. Dearborn, 109 Mass. 130. II. Where there is a clear analogy between legal and equitable interests and estates, though not absolutely bound by them, equity ordinarily follows by analogy the rules of the law, so far as applicable to the corresponding equitable subject matter. Thus, words used in creating a trust will be given the same effect as if used in creating a legal estate. Ditrell v. Carlisle, 48 Miss. 691. And the statute of limitations governing actions on analogous legal rights will be applied by analogy to suits founded on equitable rights, at least to the extent of not being exceeded without good cause. 8 Dodge v. Essex Ins. Co., 12 Gray 65. Church v. Winton, 196 Penn. 107. Shelton v. Sears, 187 Mass. 455 (claim of dower after statutory time). Eddy v. Fogg, 192 Mass. 543 (right of partner to ask for accounting lasts only six years from dissolution). 8 See the subject of Laches, under the Maxim "Equity Aids the Vigilant." THE MAXIMS 43 But where the case is one of concurrent jurisdiction (as account) it is clear that equity considers statutes of limitation binding suo vigore. Ela v. Ela, 158 Mass. 54. The period of limitation in fraud, however, fre- quently runs from the knowledge of that fraud. Manning v. Mulrey, 192 Mass. 547 (relief twenty-one years after the fraud). C. WHERE THE EQUITIES ARE EQUAL, THE LAW WILL PREVAIL. If two parties have equal equitable rights or titles and one has the legal title in addition, equity will not interfere. Bridge v. Conn. Mutual Life Ins. Co., 152 Mass. 343. Mercantile Marine Ins. Co., v. Corcoran 1 Gray 75. Elmore v. Symonds, 183 Mass. 321. Ellis v. Boston H. & E. R. Co., 107 Mass. 1. Wenz v. Pastene, 209 Mass. 359. See cases cited in Ames Cases on Trusts, p. 328 (with special reference to successive assignments). Examples (from Merwin.) 1. A gives the same day contracts to sell the same piece of real estate to B and C, each of whom is ignorant of the other's possession of an agreement. A subsequently conveys to C. C's title will prevail over B's, as he has the legal and equitable title as against B's equitable. 2. If B obtains from A, by fraud, a deed to land, and immediately conveys to C, an innocent 44 EQUITY AND ITS REMEDIES purchaser for value, C's title will prevail as he has the legal title. 4 But as a donee gets only such estate as the donor can give, his legal estate will be subject to any equit- able estate or interest in the land, possessed by another. Woodard v. Woodard, 216 Mass. 1. D. WHERE INTERESTS ARE PURELY EQUITABLE AND IN OTHER RESPECTS EQUAL, PRIORITY IN TIME GIVES THE BETTER EQUITY. If two persons hold successive assignments of the same chose in action or equitable interest, in the absence of estoppel the earlier in time prevails at law and in equity, irrespective of which one first gives notice to the debtor or trustee. 5 Lucas v. Barrett, 1 Greene (Iowa) 510. Thayer v. Daniels, 113 Mass. 129. Putnam v. Story, 132 Mass. 205. Herman v. Conn. Mutual Life Ins. Co. (estoppel prevented first assignee from prevailing) 218 Mass. 181. But in the case of unequal equities, the superior will prevail without respect to time. Belknap v. Belknap, 5 Allen 468 (the equities of other cestuis are superior to those of the assignee of the equitable interest of a cestui who is also the absconding trustee). 4 But contra, if deed from A to B was a forgery, in which case it was void, not merely voidable. 8 The opposite rule exists in England, where the one prevails who first gives notice. Dearie v. Hall, 3 Russell 48; Ames Cases on Trusts, 323. See Mercantile Marine Ins. Co. v. Corcoran, 1 Gray 75, an early Massachusetts case where Dearie v. Hall is cited with approval, but in which the defendant appears to have obtained the legal title, without notice of the plaintiff's claim. See also Bridge t>. Conn. Mutual Life Ins. Co., 152 Mass. 343. THE MAXIMS 45 Peek v. Peek, 77 Cal. 106. E. EQUITY TREATS THAT AS DONE WHICH OUGHT TO BE DONE. Upon this maxim rests the doctrine of equitable conversion (treated at length in Chapter V). It also supports the doctrine of equitable liens, under which equity enforces in the manner of liens, agreements that certain property shall be chargeable for certain obligations. Westall v. Wood, 212 Mass. 540. F. HE WHO SEEKS EQUITY MUST Do EQUITY. One cannot compel in equity the other party to a contract to perform his part, if he has failed to perform his own obligations or to tender performance thereof (although no tender is necessary if the other has refused to perform). McMurtrie v. Guiler, 183 Mass. 451. Washburn v. White, 197 Mass. 540. Wenz v. Pastene, 209 Mass. 359. Butterick Pub. Co. v. Fisher, 203 Mass. 122. Curtiss v. Sheffield, 213 Mass. 239 (under certain conditions, one seeking to have tax deed declared invalid must first pay re-assessed tax on property). A mortgagor who seeks to redeem must pay, in addition to the mortgage debt, sums for which he has OFally agreed the mortgage shall stand as security. 6 Joslyn v. Adams, 5 Allen 62. 6 This does not apply to the holder of a subsequent interest, with- out notice, who seeks to redeem from the mortgage. Whitney v. Metallic Wire Screen Mfg. Co., 187 Mass. 557. Brooks v. Brooks, 169 Mass. 38. 46 EQUITY AND ITS REMEDIES When a contract is rescinded, the plaintiff is required to put the other party in statu quo. McSorley v. Larissa, 100 Mass. 270. (Bill to redeem. One who had bought from the mortgagee in possession must be compensated for improvement). Atkins v. Atkins, 195 Mass. 124 (in setting aside conveyance, part of consideration paid must be returned). The ad verse equity is sometimes raised by estoppel. 7 Brownell v. White, 87 Md. 54 (where inno- cent occupants are allowed to pay taxes and make improvements). Berry v. Friedman, 192 Mass. 131. Mass. Rev. Laws, ch.179, sec. 17-24 (com- pensation for improvements if tenant in writ of entry has had possession for six years, or under apparently good title). The equity required is only as to the subject matter in controversy. Brooks v. Brooks, 169 Mass. 38 (redemption from a mortgage does not require pay- ment of subsequent indebtedness). G. HE WHO COMES INTO EQUITY MUST COME WITH CLEAN HANDS.* Equity refuses its aid 9 to one guilty of unlawful or inequitable conduct in relation to the subject matter. 7 The doctrine of Estoppel (see Ch. V) is based on this maxim. 8 This maxim differs from the one next before in that it is one of inaction rather than action. It is similar to the legal maxim "In part delicto, potior est conditio defendentis." It has been applied in Massachusetts in a divorce case. See Ewald v. Ewald, 219 Mass. 111. 9 But by statute, one who has made margin purchases of stock may seek relief in equity. Mass. R. L., ch. 99, sees. 4-7; Fiske v. Doucette, 206 Mass. 275. THE MAXIMS 47 Loud v. Pendergast, 206 Mass. 122 (plaintiff violated same restrictions). Wheeler v. Sage, 1 Wall. 518 (Division re- fused of profits in illegal contract to despoil third person). 10 Lovejoy v. Bailey, 214 Mass. 134 (plaintiff without clean hands, can't claim sub- rogation). Snell v. Dwight, 120 Mass. 9. Otis v. Freeman, 199 Mass. 160 (no aid to establish title to furniture bought by man for mistress). Stewart v. Finkelstone, 206 Mass. 28 (good discussion. Restrictions). Snow v. Blount, 182 Mass. 489. Nelson v. Winchell & Co., 203 Mass. 75 (rule in trademark cases). Dunham v. Presby, 120 Mass. 285. Downey v. Gove, 201 Mass. 251 (no in- junction to restrain foreclosure of mort- gage given for illegal liquor). Wilson v. Jackson, 204 Mass. 432. Equity will refuse, on the application of a guilty participant, to relieve him from the consequences of his misconduct, where his claim to relief is neces- sarily based on his misconduct. Lawton v. Estes, 167 Mass. 181 (where one of several co-tenants allows another to buy for taxes fraudulently, he cannot afterwards redeem). But it will not refuse, if the relief sought is not based on the fraud. Schmidt v. Schmidt, 216 Mass. 572. 10 Distinguish this from Harvey v. Varney, 98 Mass. 118. 48 EQUITY AND ITS REMEDIES Lufkin v. Jakeman, 188 Mass. 588 (to obtain reconveyance of property con- veyed in fraud of grantor's creditors). One is not in pari delicto who enters into a champer- tous contract with an attorney, relying on the at- torney and in ignorance of the illegality of the contract. Gargano v. Pope, 184 Mass. 571. Relief will be refused where one is, in respect to the subject matter, seeking to deceive the public. Cal. Fig Syrup Co. v. Stearn, 73 Fed. Rep. 312 (by the use of a misleading trade name). Connell v. Reed, 128 Mass. 477. Geo. G. Fox Co. v. Best Co., 209 Mass. 251 (but not where false statements used in advertising have been abandoned two years before). It is sometimes said that as "Equity is not a Court of Honor" the maxim means only that one be "legally innocent" and "equitably innocent" and not that he exhibit the highest sense of honor. Bering v. Earl Winchelsea, 1 Cox 318 (n) u (A surety who had encouraged his prin- cipal to gamble was not thereby prevented from obtaining contribution from a co- surety for losses paid on a surety bond). The Massachusetts rule is that it is only with regard to the plaintiff's right against the defendant that the plaintiff must come into court with clean hands. Beekman v. Marsters, 195 Mass. 205 (and cases there cited). 11 May be found in 1 White & Tudor's Leading Cases. THE MAXIMS 49 Lurie v. Pinanski, 215 Mass. 229 (that plain- tiff had attempted similar fraud on de- fendant and failed is immaterial). The court will not concern itself with the respective rights of two defendants, both of whom are wrong- doers. Johnson v. Scott, 205 Mass. 294. The maxim has no application where the plaintiffs act is one that he has acquired a prescriptive right to do. Parker v. American Woolen Co., 215 Mass. 176. H. EQUITY AIDS THE VIGILANT. Where one has slept on his rights and acquiesced for a long time in existing conditions, he is said to be chargeable with laches 12 and equity then ordinarily refuses its aid. This is sometimes called a form of estoppel. Andrews v. Sparhawk, 13 Pick. 393. Marvel v. Cobb, 200 Mass. 293. Mercantile Marine Ins. Co. v. Corcoran, 1 Gray 75 (estoppel). In certain cases, the analogous statute of limitation at law may be the guide in determining the length of time required to constitute laches. See under "Equity Follows the Law," ante. u "The finding of laches is not the finding of a simple fact, but it is an inference from other facts, which may include many differ- ent elements. * * * There is no fixed rule as to what shall consti- tute laches, but it depends on the particular circumstances of each case. * * * Those circumstances may, on the one hand, tend to excuse delay, or, on the other hand, go to show that prompt action was imperative." C. Allen, J.. in Snow v Boston Blank Book Mfg. Co., 153 Mass. 456 50 EQUITY AND ITS REMEDIES But in other cases, the staleness of the demand may make the relief sought so highly inequitable to other persons as to induce courts of equity on this ground to refuse such relief. The length of time required to constitute laches usually depends on the facts of the particular case. Loud v. Pendergast, 206 Mass. 122 (short delay, where plaintiff stood by and allowed defendant to violate restrictions, held laches). Fuller v. Melrose, 1 Allen 166 (ten months' delay held laches). Manning v. Mulrey, 192 Mass. 547 (twenty- one years held not laches). Marvel v. Cobb, 200 Mass. 293 (bill to set aside foreclosure for fraud. Sixteen years delay held demurrable laches). Von Arnim v. American Tube Works, 188 Mass. 515 (bill of minority stockholders). In some cases, however, the delay may be so great as to constitute laches as a matter of law. Sawyer v. Cook, 188 Mass. 163. Strout v. United Shoe Mach. Co., 215 Mass. 116. Marvel v. Cobb, 200 Mass. 293. Stewart v. Joyce, 201 Mass. 307. Doane v. Preston, 183 Mass. 571. Where facts constituting laches appear on the face of the bill, a demurrer lies. Where the defendant desires to present his defense on all the facts of the case, he may set it up in his answer, in some cases even after his demurrer has been overruled. The defendant may not argue laches as a matter of right if he has not pleaded it in some form. The court THE MAXIMS 51 may, however, in such case refuse relief as inequit able on the facts. Snow v. Boston Blank Book Mfg. Co., 153 Mass. 456. Stewart v. Joyce, 201 Mass. 307. To constitute laches there must have been either actual or imputable knowledge of the facts upon which the right to equitable relief depends. Manning v. Mulrey, 192 Mass. 547. Sunter v. Sunter, 190 Mass. 449. But neither an infant nor an insane person is charge- able with laches. Burns v. Thayer, 115 Mass. 89. Denholm v. McKay, 148 Mass. 434. A suit by the government to enforce a public right is not barred by the gross laches of its officers. U. S. v. Insley, 130 U. S. 263. County Commissioners of Hampshire, Peti- tioners, 143 Mass. 424. Where a deed is void (rather than voidable) laches constitutes no defence to a bill to set it aside. Ipswich v. Prop'rs Jeffries Neck etc., 218 Mass. 487. 52 EQUITY AND ITS REMEDIES CHAPTER V. SOME DOCTRINES IN EQUITY. A. ASSIGNMENTS. B. NOTICE. C. ESTOPPEL. 1. Estoppel by Record. 2. Estoppel by Deed. 3. Estoppel in Pais. a. From Contract. b. Equitable Estoppel. D. EQUITABLE CONVERSION. A. ASSIGNMENTS. At the early common law, the right to assign a non-negotiable chose in action was not recognized. Pomeroy, sees. 1270-1272. But equity at an early date recognized such assign- ments (when on a valuable consideration) and en- forced them; and the common law has for some time been so modified as to recognize the right of an assignee of a chose in action to sue in the name of the assignor, whether the assignment is in writing or not, 1 and whether for a consideration or voluntary. 1 The term equitable assignment applied to such transfers seems to be a recognition of the former equitable jurisdiction. Its later use is to distinguish the title of the assignee from that of the assignor in whose name alone, in the absence of statute, suits at law could be brought. Grover v. Grover, 24 Pick. 261. It may also suggest the right of the assignee, where there is no formal assignment, to compel the assignor or his executor to make such, in equity. Herbert v. Simpson, 220 Mass. 480. SOME DOCTRINES IN EQUITY 53 Grover v. Grover, 24 Pick. 261 (gift of a mortgage and note without indorsement; suit in name of assignor against latter's will). Norton v. Piscataqua, etc. Ins. Co., Ill Mass. 532 (delivery of non-negotiable note). Hewins v. Baker, 161 Mass. 320 2 (oral transfer, as collateral, of policy which expressly provided against assignment). Wolfboro Loan & Banking Co. v. Rollins, 195 Mass. 323 (assignee under a foreign statute). French v. Peters, 177 Mass. 568 (suit brought in equity by assignee of note and bank book where transfer was one act, without writing, and was denied by maker of note, bank, and assignor's administrator. The transfer of title is usually by delivery of some paper representing the chose in action (as a note, or insurance policy), or by deed. A good gift may thus be made, passing the equitable title even without indorsement or formal assignment. Whether an oral gift of incorporeal personal property is suffi- cient, there seems to be some doubt. Grover v. Grover, 24 Pick. 261. Herbert v: Simpson, 220 Mass . 480. Chadwick v. Covell, 151 Mass. 190 (dis- cussion by Holmes, J.). Herman v. Conn. Mutual Life Ins. Co., 218 Mass. 181 (written assignment of insurance policy without delivery of the policy held good as between the parties). 2 This was a bill in equity of one claimant against another for possession of the policies not against the company for payment, in which case it might have been at law. 54 EQUITY AND ITS REMEDIES Jones v. Witter, 13 Mass. 304 (dictum that parol assignment of debt is good). Assignments, at law, 3 today. In many states, under statutes, an assignee of a legal chose in action 4 (if the assignment is in writing*) may now sue at law in his own name, subject (except in the case of negotiable instruments) to all defenses and set-offs which the defendant might have had against the assignor. Mass. Rev. Laws, ch. 173, sec. 4 (first passed in 1897). Oilman v. American Prod. Con. Co., 180 Mass. 319. Bowen v. N. Y. C. & H. R. R., 202 Mass. 263 (assignment must be before date of writ). To-day, those choses in action are assignable at law that would at common law survive 8 and pass as assets to the personal representative of a decedent creditor or as liabilities against the estate of a dece- dent debtor. Most others are not assignable. 8 The adequacy of the present-day remedy at law has brought a partial loss of jurisdiction in equity. Walker v. Brooks, 125 Mass. 241. Merwin (in Section 95) seems erroneously to assume that equity never had such jurisdiction. But he refers to the "equitable title", of the assignee, which is inconsistent. See a clearer statement in Pomeroy, sees. 1271-1272. See French v. Peters, 177 Mass. 568, referred to supra. 4 Foi a case where the holder of the equitable title to a note was allowed to sue at law, see Nelson v. Piper, 213 Mass. 531. 5 The Massachusetts requirement. If not in writing, suit may still be in name of assignor. The right to sue in assignee's name, of course, depends on the law of the forum. American Lithographic Co. v. Zieglei, 216 Mass. 287. 6 Certain choses in action survive to-day under statutes which at common law did not (see, for example, Mass. Rev. Laws, ch. 171, sec. 1). But this does not necessarily make them assignable. SOME DOCTRINES IN EQUITY 55 Examples : A patent application is assignable. Richardson Shoe Mach. Co. v. Essex Mach. Co., 207 Mass. 219. An insurance policy is assignable. Herman v. Conn. Mutual Life Ins. Co., 218 Mass. 181. A right to surrender a life insurance policy is assignable. Blinn v. Dame, 207 Mass. 159 (under general assignment). The benefit of a bond to release attachment is assignable. Rogers v. Abbot, 206 Mass. 270 (under assignment of bills receivable). A claim against a bank for wrongfully refusing to honor a check is assignable. Robinson v. Wiley, 188 Mass. 533. A claim for injuries to the person (such as bat- tery or personal injury resulting from negli- gence) or to character, reputation or feelings, (such as libel, breach of promise of marriage, alienation of affections, enticement, false im- prisonment, and malicious prosecution) is not assignable in Massachusetts until after judgment (not verdict). Rice v. Stone, 1 Allen 566 (personal injuries). Stebbins v. Palmer, 1 Pick. 71 (breach of promise of marriage). Delval v. Gagnon, 213 Mass. 203 (rule stated). Flynn v. Butler, 189 Mass. 377. Sibley v. Nason, 196 Mass. 125. 56 EQUITY AND ITS REMEDIES A mere right to litigate for fraud is not assignable. 7 United Zinc Companies v. Harwood, 216 Mass. 474. A contract to render services involving personal skill is not assignable so long as it is executory. 8 Pike v. Waltham, 168 Mass. 581 (contract to build a bridge). But see Haskell v. Blair, 3 Gush. 534 (assignment of benefit of contract for services of laborer). A right of entry for breach of a condition in a deed conveying the fee is not assignable. Rice v. Boston & Worcester R. R., 12 Allen 141. A^chose in action, to be assignable at law, need not be a present right of action but may be the present interest in a contract which in case of non- performance can only be reduced to possession by suit. Taylor v. Lynch, 5 Gray, 49 (assignment of wages under existing contract). Herbert v. Bronson, 125 Mass. 475 (assign- ment under non-existing contract, invalid) Clarke v. Fay, 205 Mass. 228 (interest under grandfather's will, to come to assignor if he survives). Although a lease contains a covenant not to assign, an administrator of the lessee may bring a bill to enforce agreement therein to renew. Squire v. Learned, 196 Mass. 134. 7 But see Busiere v. Reilly, 189 Mass. 518, in which right to sue to rescind real estate transaction was devised by will and the devisee brought suit. 8 But the right to receive money under such a contract is assign- able. American Lithographic Co. v. Ziegler, 216 Mass. 287. SOME DOCTRINES IN EQUITY 57 Recognized in equity only. Although the jurisdiction at law is now ample for the enforcement of the rights of the assignee of a legal chose in action, the aid of equity may be invoked by the assignee of a purely equitable demand. Kingsbury v. Burrill, 151 Mass. 199 (assign- ment of share in an expected payment of money by City of Boston). Richardson v. White, 167 Mass. 58 (assign- ment of policy. See, as to delivery). Brierly v. Equitable Aid Union, 9 170 Mass. 218 (assignment of certificate in bene- ficiary association to secure a debt). Nelson v. Piper, 213 Mass. 531 (equitable holder of promissory note). At law a transfer of property to be acquired in the future is void, but in equity such a transfer creates an equitable ownership at such time as the property vests in the assignor. Pomeroy, sec. 1288. In Massachusetts, such a transfer operates as an executory agreement to transfer the property when acquired by the assignor. If that property is tangible, possession by assignee after acquirement by assignor gives legal title; if intangible, the legal title may be obtained in equity. In both cases it is subject to intervening adverse rights of third persons. Kingsbury v. Burrill, supra (intangible property). Blanchard v. Cooke, 144 Mass. 207 (con- taining a review of the law of mortgages on after-acquired personalty). 9 This case was brought at law. But the defendant, admitting liability to someone, summoned a claimant, and the matter was determined, as in interpleader, equitably. 58 EQUITY AND ITS REMEDIES Wasserman v. McDonnell, 190 Mass. 326 (mortgage of personalty). But a mere possibility of income from an expected exercise of discretionary power by trustees is not assignable. Leverett v. Barnwell, 214 Mass. 105. Assignments of fractional parts of claims or funds are not recogaized at law; but are good in equity as between the assignor and the assignee and are enforceable, at least when the person to pay makes no objection. James v. Newton, 142 Mass. 366 (formal assignment of part interest under an uncompleted contract). Richardson v. White, 167 Mass. 58 (assign- ments of insurance-). Endicott v. University of Virginia, 182 Mass. 156 (assignment of part of bene- ficial interest under trust fund, held binding on trustee). But equity will lend no assistance towards per- fecting a voluntary agreement to assign a chose in action absolutely or in trust, so long as it remains executory. When executed, however, equity will protect the rights of the parties. Stone v. Hackett, 12 Gray 227 (gift of shares). In equity a stranger who is recognized as an assignee of a chose in action has the same standing as the original party to the contract, though there has been no formal assignment. Record v. Littlefield, 218 Mass. 483 (wife brought bill on agreement running to husband). SOME DOCTRINES IN EQUITY 59 Orders, as assignments. An order not having the elements of a formal assignment, "drawn by one, directing another to pay a third person the whole of a certain fund or claim, due or belonging to the first, may operate as an assignment, taking effect, as to persons other than the debtor, when delivered (not when notice is given the holder of the fund). 10 Kingman v. Perkins, 105 Mass. Ill (savings bank deposit). But see White v. Coleman, 127 Mass. 34 (no assignment where order is on attorney to pay funds when received). An order to pay less than the whole amount of the fund, however, is not an assignment pro tanto unless it is accepted by the person on whom it is drawn. Dana v. Third National Bank, 13 Allen 445 (check). Holbrook v. Payne, 151 Mass. 383 (un- accepted draft). Florence Mining Co. v. Brown, 124 U. S. 385. Some elements of the assignee's title. In Massachusetts (contra in England and some other jurisdictions) the assignment of a legal chose in action is complete, so far as persons other than the debtor 11 are concerned, upon the assent of the 10 Of course, the debtor is protected, if, without knowledge of assignment, he pays original creditor. 11 As between assignee and debtor it is not operative until notice and does not change rights of the debtor against the assignor exist- ing at the time of notice. American Bridge Co. v. Boston, 202 Mass. 374. 60 EQUITY AND ITS REMEDIES assignor and the assignee. It follows that of several successive assignees, the first in point of time (not the one first notifying the debtor) has the superior claim as to third persons, unless he is estopped to set it up, and that an assignment, though the debtor has not been notified, defeats subsequent trustee process served on the assignor. Herman v. Conn. Mutual Life Ins. Co. 218 Mass. 181 (Rule stated, 12 though first as- signee was here estopped as against second assignee). Thayer v. Daniels, 113 Mass. 129. City Bank of New Haven v. Wilson, 193 Mass. 164 (payment of notes to assignor does not discharge the debtor). Dearie v. Hall, 3 Russell 1; Ames Cases on Trusts 323 (The English Rule). An assignee of a chose in action takes it subject to all equities between the parties thereto and ac- quires no greater rights than the assignor. 13 Newell v. Hadley, 206 Mass. 335. Pomeroy, sees. 703-706. The liability of a lessee results from privity of contract and extends through the term; that of his assignee from privity of estate and terminates when he assigns, even though lessor has no notice. Donaldson v. Strong, 195 Mass. 429. 12 This was an assignment of a life insurance policy. It was decided that it was immaterial as between assignor and assignee that the policy made ceitain requirements for the validity of assignments, not complied with here. 18 This, of course, does not apply to negotiable paper, or (in Mass- achusetts) to mortgages, until they are overdue. Taylor v. Page, 6 Allen 86. McKeown v. Lacey, 200 Mass. 437, (in which assignee, without consideration, got a better title to note than assignor). Contra in some other states as to mortgages. SOME DOCTRINES IN EQUITY 61 An assignment may be valid although under a fictitious name. W. Galligan Co. v. Casey, 205 Mass. 26. B. NOTICE. One who acquires an interest in property with notice (either actual or constructive) of the existence in a third person of a right enforceable in equity, affecting the subject matter, takes his title subject to that right. 14 Parker v. Nightingale, 6 Allen 341. Tulk v. Moxhay, 11 Beavan 571; Ames, 147. Kelley-Buckley Co. v. Cohen, 195 Mass. 585. Bisbee v. McKay, 215 Mass. 21 (notice to one trustee, is notice to all where they are volunteers). Conversely, one who acquires a legal interest in property as a bona fide purchaser for value, without actual or constructive notice of the existence of a prior equitable claim, is not ordinarily interfered with by a court of equity. Pomeroy, sees. 737-746. In America, under recording acts, it is also true that a grantee gets a good legal title to an interest in real estate if he acquires it without actual or con- structive notice 15 of a prior deed by which his grantor 14 Under the Massachusetts Land Court Act, however, a certificate of title setting forth ownership and incumbrances is conclusive evi- dence of matters therein contained. Quaere; Does actual notice have any effect ? Mass. Rev. Laws, ch. 128, sec. 46. 15 The effect is, of course, to make the recording of deeds the means of asseiting and preserving one's title against such persons as do not have actual notice of it. 62 EQUITY AND ITS REMEDIES has conveyed that interest to another. The former grantee is then estopped to claim against him. See Mass. Rev. Laws, ch. 127, sec. 4. But this principle does not apply to purchasers of personalty. Bisbee v. McKay, 215 Mass. 21 (purchaser of shares in a realty trust). Actual Notice (in England and Massachusetts), 16 while it imports less than the positive knowledge that would come from having been an eye-witness to certain facts, is such notice as convinces its recipient of the truth of the facts in question. It is more than mere rumor of facts that would reasonably put a purchaser on inquiry. Evans v. Wall, 162 Mass. 478 (rule stated). Lamb v. Pierce, 113 Mass. 72 (actual notice of unrecorded deed, under recording stat- utes). Curtis v. Mundy, 3 Met. 405. 17 George v. Kent, 7 Allen 16 (description in deed gives actual notice of abutting owners). Hughes v. Williams, 218 Mass. 448 (knowl- edge of attaching creditor that debtor has given an unrecorded deed). Constructive Notice is the legal presumption that one has notice. This presumption may arise (1) 16 In some other juiisdictions actual knowledge is said to include "knowledge of such facts as would put a prudent man on inquiry." Brinkman v. Jones, 44 Wise. 498; Kirsch v. Toziei, 143 N. Y. 390. 17 "Information of the giving of a deed, brought home to a paity with as much authority as the fact of the marriage or death of a friend in the newspaper" was held to be actual notice. SOME DOCTRINES IN EQUITY 63 from evidence so strong as not safely to be ignored; (2) by virtue of statutes, such as the recording acts of the several states. Story's Equity, sec. 399. Colby v. Shute, 219 Mass. 213 (notice from publication in insolvency proceedings). Notice presumed from evidence. Open possession of land is constructive notice 18 that the possessor claims some kind of interest. But as (in Massachu- setts) actual notice is required to charge one with knowledge of legal interests greater than that of a lessee for less than seven years, possession is only notice that the possessor may have such an interest as tenant. Cunningham v. Pattee, 99 Mass. 248 (ten- ant). 19 Under recording acts. Recording deeds, under American statutes, gives constructive notice of their contents to subsequent purchasers. Bates v. Norcross, 14 Pick. 224 (but no notice to lawful owner, from deed of one with no title). To effect constructive notice in this form, how- ever, all statutory pre-requisites must be complied with. Blood v. Blood, 23 Pick. 80 (unacknowledged deed not notice, though recorded). One is put upon his inquiry to learn the truth of 18 It falls short, however, of the actual notice required in the case of unrecorded deeds. Mara v. Pierce, 9 Gray 306. 19 The constructive notice rule is here stated to be that "notice sufficient to make inquiry a duty is notice of all that by reason- able inquiry would have been ascertained." 64 EQUITY AND ITS REMEDIES recitals in deeds to him or in deeds in his chain of title. Smith v. Burgess, 133 Mass. 511 (assignee of mortgage has constructive notice from word "trustee" in mortgage). In order to be affected by a prior unrecorded deed from one's grantor to a third person, one must have actual notice of that deed, in Massachusetts and some other jurisdictions. Mass. Rev. Laws, ch. 127, sec. 4 (and cases under "Actual Notice" supra). Hughes v. Williams, 218 Mass. 448 (actual notice to attaching creditor, of outstand- ing deed, discussed). One who acquires notice of an unrecorded instru- ment between making his first payment for property and obtaining his deed, takes with notice. Wentz v. Pastene, 209 Mass. 359 (unrecorded lease for more than seven years). Lis pendens is usually referred to the equitable doctrine of notice. This charges with notice one who, pending a suit to reach certain property, acquires an interest therein, though he pays a valuable con- sideration and has no actual notice. The matter is now usually governed by statutes, requiring either actual notice or (as a means of affording constructive notice) the filing of a memorandum of the pending suit in the registry of deeds where instruments affecting the land should be recorded. Mass. Rev. Laws, ch. 134, sec. 12. C. ESTOPPEL. Estoppel is the preclusion of a person to contra- dict in court that which has been admitted or deter- SOME DOCTRINES IN EQUITY 65 mined to be a fact under circumstances of solemnity (as by a record or by a deed), or to contradict a repre- sentation of fact which he has induced another to believe to be true and to act upon to his prejudice (estoppel in pais}. Legal estoppel is the designation given to 1. Estoppel by Record; 2. Estoppel by Deed; 3. Certain Estoppels in Pais. 1. Estoppel by Record. A record of a court of law having jurisdiction* of the parties to the controversy imports verity so that it is an effectual bar to further dispute on the identical subject matter by the parties 21 to it or by their privies. This conclusiveness is referred to as res judicata. It follows only upon the judgment or decree. A verdict or finding is insufficient. Bigelow on Estoppel, Chapter II. Old Dominion Copper Co. v. Bigelow, 203 Mass. 159, at page 217. Saco Brick Co. v. J. P. Eustis Mfg. Co., 207 Mass. 312. Haskell v. Cunningham, 221 Mass. 49 (clerk of courts may not testify in contradiction of his records). A judgment is conclusive by way of estoppel 20 A judgment rendered upon constructive service may be a good judgment in personam in that state, though void when sued on outside the state. Pennoyer v. Neff, 95 U. S. 714; Bigelow v. Old Dominion Cop. Co., 225 U. S. 111. 21 There is no estoppel against a suit between the same persons, one of whom sues or is sued in a different capacity. McCarthy v. Wood Lumber Co., 219 Mass. 566. 66 EQUITY AND ITS REMEDIES only as to those facts which were necessarily included in it and without the existence and proof of which such a verdict and judgment could not have been rendered. 22 Flynn v. Howard, 218 Mass. 245 (final decree in equity may be bar to suit at law). Fairbanks v. McDonald, 219 Mass. 291 (damages for "loss already sustained," no bar to injunction against future dam- age). Lima v. Campbell, 219 Mass. 253. Burlen v . Shannan, 99 Mass. 200. Inst. for Savings, etc. v. Puffer, 201 Mass. 41. Therefore, there can be no estoppel arising out of a judgment 23 unless the same parties, or their prede- cessors in title, have had their day in court touching the matter litigated, and unless the judgment ia equally available to both parties. Bigelow v. Old Dominion Copper Co., 225 U. S. 111. Mere recovery of judgment is no bar to another action against a different party (as a joint tort feaser) or to an action against the same person if he has given different obligations in respect of what ia in substance the same debt. Vann v. Burr, 151 Mass. 386. Frost v. Thompson, 219 Mass. 360. 22 The dismissal of a bill for want of prosecution is therefore no bar to a further suit. Conant t>. Boston Chamber of Commerce, 201 Mass. 479. 23 But in the case of a judgment in rem, the whole world is estopped. McCarthy 0. Wood Lumber Co., 219 Mass. 566. SOME DOCTRINES IN EQUITY 67 Bigelow v. Old Dominion Copper Co., 225 U. S. 111. Judgment for the defendants in a suit on a note against three partners raises an estoppel to sue any one of them on the note. Rogers v. Shea, 219 Mass. 416. But a judgment against defendant trustees in a suit at law does not estop the plaintiff from pro- ceeding also in equity against the trust estate. Frost v. Thompson, 219 Mass. 360. Nor is one estopped from setting up the truth by reason of having taken an inconsistent position in earlier litigation in which he was defeated. Jennings v. Wall, 217 Mass. 278. Athol Sav. Bank v. Bennett, 203 Mass. 480. But see Gardner v. Denison, 217 Mass. 492 (father suing as next friend cannot later sue in his own name). A judgment is an absolute merger of a debt by simple contract, so that the judgment creditor is thereafter estopped to maintain another suit on the original promise. But this doctrine operates only between original parties and their privies, and is not a bar in favor of strangers. Frost v. Thompson, 219 Mass. 360 (and cases cited). 2. Estoppel by Deed. An estoppel by deed is a preclusion of the com- petent parties to a valid sealed contract, and their privies, to deny its force and effect by any evidence of inferior solemnity. 68 EQUITY AND ITS REMEDIES Bigelow on Estoppel, ch. VII. Watson v. Watson, 128 Mass. 152. Dooley v. Wolcott, 4 Allen 406. A void instrument does not work estoppel. Mason v. Mason, 140 Mass. 63 (conveyance of dower by a wife in husband's lifetime). N. Y., N. H. & H. R. R. v. York & Whitney Co., 215 Mass. 36 (contract invalid under interstate commerce laws). Deans v. Eldredge, 217 Mass. 583 (void deed). The estoppel may be against denying recitals or covenants therein. Cutler v. Dickinson, 8 Pick. 386 (recital in probate bond that principal was appointed estops surety from denial). Johnson v. Thompson, 129 Mass. 398 (recital in deed that property subject to mort- gage. Grantee estopped). Federal Trust Co. v. Bristol Co. St. R'way, 218 Mass. 63. But an estoppel may be a bar to another estoppel. Platt v. Squire, 12 Met. 494. Title by estoppel arises where a grantor without title gives a deed with warranty 24 and subsequently acquires the ownership of the property named therein. This inures to the benefit of the grantee. Somes v. Skinner, 3 Pick. 52. 54 As to estoppel by quitclaim deed, see Mass. Land Court Decisions 9, and cases therein cited, and Howe v. Howe, 199 Mass. 598. SOME DOCTRINES IN EQUITY 69 White v. Patten, 24 Pick. 324. Cressey v. Cressey, 215 Mass. 65 (estoppel from sheriff's deed of property of which debtor owned undivided share, provided that portion is subsequently set off to him). But there is no title by estoppel where one who has conveyed by metes and bounds, with one measure- ment short, subsequently acquires the adjoining property. Van Ness v. Boiney, 214 Mass. 340. Nor is there any estoppel from the covenants of a void deed. Deans v. Eldredge, 217 Mass. 583. Release of dower by a woman during coverture also operates by way of estoppel, as dower itself arises only after the husband's death. Stearns v. Swift, 8 Pick. 532. Wing t;. Deans, 214 Mass. 546 (liability of feme covert on her covenants was for- merly only by way of estoppel)." 3. Estoppel in Pats 28 This may be : a. From contract; or b. Equitable estoppel. 25 But to be estopped, she must have joined in the operative words. One who erroneously joined in a deed simply releasing dower waa not estopped to claim the property as her own. Pierce v. Chace, 108 Mass. 254. But see Snow v. Hutchins, 160 Mass. Ill, where a woman who thus signed was estopped by other facts. 26 See foot-note to Stowe v. United States, 19 Wall. 13. 70 EQUITY AND ITS REMEDIES a. Estoppel by Contract arises where some fact at the basis of the contract is treated by it as specific- ally settled (as, for example, the capacity in which one party assumes to act). In this class, also, is the estoppel from indorsement on commercial paper, or in the form of a preclusion of a lessee to deny land- lord's title. Granger t;. Parker, 137 Mass. 228 (lease). Dooley v. Cheshire Glass Co., 15 Gray 494 (corporation estopped to deny validity of its incorporation). Daniels v. Tearney, 102 U. S. 415 (one act- ing under unconstitutional law may not set up its unconstitutionality). b. Equitable Estoppel (or Estoppel by Misrepre- sentation). 27 Where one by his words or conduct wilfully (or negligently) causes another to believe the existence of a certain state of things and induces (or, under same circumstances, knowingly allows) him to act on the belief so as to alter his previous position, the former is precluded from averring against the latter a different state of things as existing at the same time. Bigelow on Estoppel, page 557 (5th edition) . Jennings v. Wall, 217 Mass. 278. Gray v. Bartlett, 20 Pick. 186. Stimson v. Whitney, 130 Mass. 591 (estoppel to deny partnership, arising from failure to indicate termination of relationship). N. E. Structural Co. v. Everett Distilling Co., 189 Mass. 145 (estoppel by plan). 27 This doctrine is only to be applied "when to refuse it would be manifestly inequitable." Deans v. Eldredge, 217 Mass. 583 (no estoppel from covenants of void deed). SOME DOCTRINES IN EQUITY 71 Downey v. Hood, 203 Mass. 4 (estoppel by plan). Lilley v. Fifty Associates, 101 Mass. 432 (estoppel, from dealings, to claim pay- ment of rent in "Russia Old Sables Iron"). Richards v. Keyes, 195 Mass. 184 (cestui estopped to complain of trustee's act he has requested). In order to constitute such estoppel, it must appear that the facts were known to the party against whom the estoppel is urged, that his acts or representations were intended to be acted upon by the party later urging the estoppel, and that they were so acted upon by him in ignorance of the truth, to his prejudice. 28 Newton Centre Trust Co. v. Stuart, 29 201 Mass. 288 (as to intent that representa- tion be acted on). Stiff v. Ashton, 155 Mass. 130 (one stating to an officer that goods belonged to another was not estopped to deny his own title, unless he had reason to suppose the state- ment might induce the officer to attach). Tyler v. Odd Fellows', etc., 145 Mass. 134 (as to estoppel by "receipt in full"). Plymouth v. Wareham, 126 Mass. 475 (no estoppel without real damage). Westlake v. Dunn, 184 Mass. 260 (no estop- ^'"The earlier Massachusetts cases spoke of the necessity of "intent to deceive"; the later cases say that this intent may be inferred from the fact that one who knows or has reason to know the truth has spoken falsely. 29 This case should be carefully distinguished from Central Nat'l Bank v. Copp, 184 Mass. 328. 72 EQUITY AND ITS REMEDIES pel where deed fraudulently delivered by agent).? Lincoln v. Gay, 164 Mass. 537 (no estoppel to recover damages from dressmaker who, without being ordered by plaintiff, made up dress goods wrong side out). Hinchley v. Greaney, 118 Mass. 595 (one asserting property unincumbered, es- topped to assert mechanic's lien). Bernard v. Adams Express Co., 205 Mass. 254 (one asserting value of express parcel estopped, after loss, to claim more, not- withstanding Interstate Commerce Law). A negligent failure to tell the truth may constitute such a representation as to estop one to assert a title adverse to one who has been induced by the repre- sentation to acquire an interest in the property. Tracy v. Lincoln, 145 Mass. 357 (wife pre- sent when husband mortgaged her prop- erty as his own estopped to claim title against mortgagee). Nickerson v. Mass. Title Ins. Co., 178 Mass. 308 (an attorney employed to examine a title failed to report a mortgage held by the attorney). Snow v. Hutchins, 160 Mass. Ill (woman who signed to release dower in land owned by herself, title of which husband was warranting in deed, estopped to claim land). Smyth v. Sprague, 149 Mass. 310 (holder of unrecorded deed estopped to claim prop- erty as against creditor, but not as against 80 Compare Phelps v. Sullivan, 140 Mass. 36 (where mortgagee was estopped to deny assignment by agent). SOME DOCTRINES IN EQUITY 73 assignee in insolvency 31 Cutter v. Cutter, 215 Mass. 94 (party to partition proceeding making no claim to barn estopped to deny that barn is part of realty, after assenting to decree). But in a case where one's act has not induced or may not reasonably be expected to induce the per- son later seeking to set up the estoppel, to act to his detriment, the act (whether of speech or silence) may be no such breach of duty as will give rise to estoppel. Newton Centre Trust Co. v. Stuart, 201 Mass. 288. Lincoln v. Gay, 164 Mass. 537. Huntress v. Hanley, 195 Mass. 236 (no duty on owner of property to assert title at once upon hearing that another has mort- gaged it as his). Goodenough v. Labrie, 206 Mass. 599 (agree- ment to assume and pay mortgage). Cole v. N. E. Trust Co., 200 Mass. 594. So a promise, without consideration, to pay an account for services made after the account is con- tracted, although admissible as evidence, does not estop one from denying liability or contesting the amount of the claim. Conant v. Evans, 202 Mass. 34 (a doctor's bill. Defendant had written letters prom- ising to pay). 81 Our statutes requiring deeds to be recorded result in the estoppel of the holder of an unrecorded deed as against one who subse- quently takes title without actual notice. 74 EQUITY AND ITS REMEDIES Entrusting another with possession of chattels is not holding him out as owner and creates no estoppel if he undertakes to sell. Rogers v. Button, 182 Mass. 187. Kershaw v. Merritt, 194 Mass. 113 (husband and wife). But entrusting another with the tangible evidence of a chose in action may lead to estoppel to claim from one who acquires from him. Herman v. Conn. Mutual Life Ins. Co., 218 Mass. 181 (insurance policy). Russell v. Am. Bell Tel. Co., 180 Mass. 467 (stock certificate). Title by estoppel once thus acquired may pass by conveyance to anyone, whether with or without knowledge. Nickerson v. Mass. Title Ins. Co., 178 Mass. 308. Equitable estoppel is usually recognized at law and resort to equity is ordinarily unnecessary. Dickerson v. Colgrove, 100 U. S. 578 (rule stated). Drexel t>. Berney, 122 U. S. 241. Election of Remedies. When a party has two alternative and inconsistent rights, he may be estopped by his election between them, provided he makes it deliberately and unin- fluenced by accident or mistake. Stevens v. Pierce, 151 Mass. 207. Holman v. Updike, 208 Mass. 466. SOME DOCTRINES IN EQUITY 75 Debbins v. Foster, 219 Mass. 370 (election to hold as mortgagee in possession). There is no election, however, where the choice is not made deliberately, or is the result of accident or mistake as to the facts. Snow v. Alley, 156 Mass. 193. Moore v. Sanford, 151 Mass. 285. Peters v. Ballestier, 3 Pick. 495. Where one brings in the same jurisdiction two suits for the same cause of action, an election of remedies may be required before trial. 32 Sanford v. Soule Piano & Organ Inv. Co., 164 Mass. 85 (suit at law; then one to reach and apply in equity. Held bill should be dismissed unless lawsuit is discontinued). But the rule of election does not necessarily pre- vent the simultaneous employment of different reme- dies not mutually repugnant, looking towards the satisfaction of a single claim. Connihan v. Thompson, 111 Mass. 270. Corbett v. B. & M. R. R., 219 Mass. 351. (action under state and federal employers' liability acts, tried together). Frost v. Thompson, 219 Mass. 360 (judgment against trustees at law is not an election so as to prevent recovery in equity against the trust estate). Waiver. Some forms of estoppel are more famil- 32 See Turnquist v. Hannon, 219 Mass. 560 for discussion of election by beginning proceedings under Workingmen's Compen- sation law. 76 EQUITY AND ITS REMEDIES iarly known as waiver, and commonly arise in con- tracts of insurance. N. Y. Life Ins. Co. v. Eggleston, 96 U. S. 572. Little v. Phoenix Ins. Co., 123 Mass. 380 (waiver of preliminary statement). Eliot Five Cents Savings Bank v. Commercial Union Ass'n Co., 142 Mass. 142 (waiver of defects in proof of loss). Canton Co-operative Bank v. American Cen- tral Ins. Co., 219 Mass. 132 (waiver of right to require arbitration). Fall River v. Aetna Insurance Company, 219 Mass. 454 (denial of all liability may amount to waiver of arbitration right). D. EQUITABLE CONVERSION. "Equitable conversion is that equitable or implied change in the nature of property by which, for cer- tain purposes in equity, real estate is considered as personal and personal estate as real, and transmissible and descendible as such." 33 It is based on the maxim that equity regards that as done which ought to be done. Pomeroy's Equity, sec. 1159 et seq. Being an equitable doctrine, conversion is enforced only in courts of equity, except where, as it affects the devolution of property, it is recognized in pro- bate proceedings. The doctrine is principally im- portant in America to-day in determining rights 83 "The effect is that though there is no actual change in the nature of the property all the legitimate consequences of such a change will result BO far as persons claiming under the instrument or its author are concerned. The effects of conversion extend only to those persons, however. See Pomeroy, sec. 1166. SOME DOCTRINES IN EQUITY 77 between heirs and personal representatives. The respective rights of widows, legatees, and devisees, may also depend on the doctrine. See cases infra. Conversion occurs when an intention is absolutely expressed in a will or other instrument that land shall be sold and turned into money, or that money shall be expended in the purchase of land. Holland v. Cruft, 3 Gray 162, at 180. Hammond v. Putnam, 110 Mass. 232. Perkins v. Coughlin, 148 Mass. 30. Hovey v. Dary, 154 Mass. 7. Thissell v. Schillinger, 186 Mass. 180. It occurs immediately on the death of a testator, if in a will, or on the execution of an instrument inter vivos. Hammond v. Putnam, 110 Mass. 232 (will). Pomeroy, sec. 1162. It occurs even though the person charged with making the change has not done so. Lechmere v. Earl of Carlisle, 3 P. Wms. 215. It is immediate, though the person charged with the duty has power to delay the change. Morris v. Griffiths, 26 Ch. Div. 601. Mellon v. Reed, 123 Penn. 1 (express power to delay). It is immediate, though the change is to be made only on the happening of an event certain. 78 EQUITY AND ITS REMEDIES Asche v. Asche, 113 N. Y. 232. But it occurs only when the event takes place, if dependent on an event uncertain. Peter v. Beverly, 10 Peters 532. Duration of Equitable Character. If the purpose for which conversion is ordered fails, in whole or part, the property not converted remains as if no conversion had been ordered (or in the hands of a trustee may give rise to a resulting trust). Ackroyd v. Smithson, 1 Brown's Ch. 503. Pomeroy, sec. 1169 et seq. But if land is ordered sold, the proceeds to be mixed in a common fund for payment of debts and legacies, there is conversion as to the whole and the surplus is personalty. Perkins v. Coughlin, 148 Mass. 30. Hammond v. Putnam, 110 Mass. 232. Where land is sold under an order of court for a specific purpose, the surplus money as between the heirs and next of kin is considered as land. Until it reaches a person absolutely entitled to it, it is considered realty and descends as such. Appeal of Wentz, 126 Penn. 541. Mass. Rev. Laws, ch. 148, sec. 9 (provides that surplus of sales of deceased person's land shall be considered real property in the final accounting). Where land held in trust is taken by eminent do- main, the proceeds are in like manner held as land SOME DOCTRINES IN EQUITY 79 until they reach the hands of the person absolutely entitled thereto. Gibson v. Cooke, 1 Met. 75. Davis v. Badlam, 165 Mass. 248. Simonds v. Simonds, 112 Mass. 157. Who is "a person absolutely entitled thereto?" 1. The cestui is not. Hovey v. Dary, 154 Mass. 7. 2. In some jurisdictions infants and lunatics are not. In re Barker, 17 Ch. Div. 241. Horton v. McCoy, 47 N. Y. 21. Contra: Emerson v. Cutler, 14 Pick. 108 (on the ground that the act of the guardian is the act of the minor). Holland v. Cruft, 3 Gray 162 (explaining Emerson v. Cutler, and decided before the statute of 1836, now R. L., ch. 148, sec. 9). In some cases the proceeds of insurance policies in trust estates, not expended for purposes of the trust, will be regarded in equity as real property belonging to the owner of the reversion. Hawes v. Lothrop, 38 Cal. 493. Where land is converted by a will or otherwise, all parties in interest may, of course, by some un- equivocal act, elect to take it as realty. That is called reconversion. Mellon v. Reed, 123 Penn. 1. Trask v. Sturges, 170 N. Y. 482. Pomeroy, sec. 1175 et seq. 80 EQUITY AND ITS REMEDIES The Statute of Frauds. The doctrine of conversion was held to permit the transfer by parol, notwithstanding the Statute of Frauds, of a man's interest under a clause in a will requiring land to be converted into money, in Mellon v. Reed, 123 Penn. 1. (Oral exchange of his interest for a cow, held to be a mere assignment of a chose in action, even though subsequent reconversion by other heirs). In determining inheritance taxes, the doctrine is not to be invoked, so as to compel the executor to bring personalty from another jurisdiction to free from incumbrance real estate in Massachusetts and thereby increase the tax. McCurdy v. McCurdy, 197 Mass. 248. But see In re Shoenberger, 221 Penn. 112. Conversion in Land Contracts. After the making of a contract for the sale of land or other property as to which specific performance may be had, equity considers the agreed vendee the owner of the property and the agreed vendor the owner of the purchase money." Pomeroy, sees. 1161-1166. The agreed vendor, before conveyance is made, is sometimes called a trustee for the vendee, although the analogy between agreed vendor and mortgagee seems closer. 84 In case of the failure of the agreed vendee to complete the pur- chase, it is sometimes a vexing question as to when the relation ends. See decree foreclosing vendee's rights in Button v. Schroyer, 5 Wis. 598; Ames 225. SOME DOCTRINES IN EQUITY 81 Felch v. Hooper, 119 Mass. 52 (likened to trustee). Merrill v. Beckwith, 163 Mass. 503; Ames 19. Rayner v. Preston, L. R. 18 Ch. Div. 1; Ames 229. Button v. Schroyer, 5 Wise. 598; Ames 225. Ames 240, note (relation analagous to mortgagor and mortgagee). The validity of a contract is a requisite for con- version. Thomas v. Ho well, 34 Ch. Div. 166; Ames 196 (none where agreed vendor has no title). Blew v. McClelland, 29 Mo. 304; Ames 237 (none in oral contract to convey land). Curre v. Bowyer, 5 Beavan 6; Ames 196 (if contract valid, but specific performance impossible through laches, consequences of conversion are present). Effect of Death of Party. If an agreed vendor dies, 35 his legal title descends to his heirs, but they, being volunteers, hold it sub- ject to the duty to convey to the agreed vendee, in which case the purchase money goes to the agreed vendor's personal representative. The latter may even compel specific performance by the heirs and agreed vendee, although neither of them desires it.* 8 35 In Massachusetts, by statute, the executor or administrator of the agreed vendor may be ordered to make the conveyance. Mass. Rev. Laws, ch. 148, sec. 1. 86 Thus, if A agree to convey to B and die before doing so, there may be these actions: (1) B v. A's heirs (or devisees) and A'a administrator (or executor); (2) A's administrator (or executor) v. B and A's heirs (or devisees) ; (3) A's heirs (or devisees v. B and A's administrator or executor. Decree would be that A's heirs (or devisees) convey to B upon receipt by A's administrator (or executor) of purchase price. 82 EQUITY AND ITS REMEDIES Bubb's Case, Freeman Ch. 38; Ames 194. If an agreed vendee dies, his heirs or devisees are necessary parties to a suit for specific performance. If they seek to compel conveyance, the suit should be against the agreed vendor for the conveyance of the land, and the agreed vendee's administrator for the payment of the purchase money. 37 Conversion takes place though a valid contract is rescinded after the death of the agreed vendee. His heirs are then entitled to the purchase money which would have been paid for the land. Matthews v. Gadd, 5 So. Australia 129; Ames 193. Green v. Smith, 1 Atkyns 572; Ames 193. (Vendor's title defective; no conversion). Where a man has made a contract to sell real estate, and then makes a will devising it, the devisee will be entitled to the proceeds of the sale, because that is presumed to be the intention of the testator; but where, after having given the property by will, the testator agrees to sell it and the sale is afterward made, the interest of the devisee is taken away. Mayer v. Gowland, 2 Dickens 563; Ames 195. Townley v. Bidwell, 14 Vesey 591; Ames 199. Effect upon Dower and Curtesy. Where one before marriage has agreed to sell land, the spouse is held in equity to have no dower or curtesy in it (as the agreed vendor is but a trustee of the legal title). S7 Thus, if A agree to convey to B and B die before receiving con- veyance, there may be these actions: (1) B's heirs (or devisees) v. A and B's administrator (or executor) ; (2) A v. B's heirs (or devi- sees) and B's administrator (or executor) ; (3) B's administrator (or executor) . A and B's heirs (or devisees). SOME DOCTRINES IN EQUITY 83 Dooley v. Merrill, 38 216 Mass. 500 (in which woman was vendor). Dean v. Mitchell, 4 J. J. Marshall (Ky.) 451; Ames 204 (in which man was vendor). When the agreed vendee dies before obtaining a conveyance, his widow ordinarily has no dower, because a widow has no dower in the equitable estate of her husband. Lobdell v. Hayes, 4 Allen 187 (no dower where contract wholly executory at his death). But, in Massachusetts, the widow of an agreed vendee has been held to have dower in a case where the purchase money was paid during the lifetime of her husband. This was the result of the construction of a statute (now somewhat modified). Reed v. Whitney, 7 Gray 533 (discussion of principle). Effect of Loss before Conveyance. The agreed vendor may enjoin the vendee against waste which affects the security, and the vendee may likewise enjoin the vendor against waste. Crockford v. Alexander, 15 Vesey 138; Ames 221 (vendee's waste). Clarke v. Ramuz, L. R. 1891, 2 Q. B. 456; Ames 222 (vendor's waste). If the buildings are destroyed by fire or other casualty before the title is passed, in most jurisdictions 88 In Dooley v. Merrill, however, the court enjoined the husband from claiming curtesy. 84 EQUITY AND IT REMEDIES the loss falls upon the agreed vendee as the equitable owner. Paine v. Meller, 6 Vesey 349; Ames 227. And this is true in some jurisdictions, although the vendor is in possession and the time for passing title has not arrived. Brewer v. Herbert, 30 Md. 301. Contra: Goldman v. Rosenberg, 116 N. Y. 78. Where the rule in Paine v. Meller applies, if the vendor recovers insurance he ordinarily does so to the use of the vendee. Skinner v. Houghton, 92 Md. 68. Contra : Rayner v. Preston, L. R. 18 Ch. Div. 1; Ames 229. In Massachusetts, the rule ' in Paine v. Meller is not law, unless a contract for sale plainly implies that the vendee takes the chance that the building may be burned. A condition that the buildings shall exist is implied, and so the loss is on the vendor. 39 Hawkes v. Kehoe, 193 Mass. 419. Thompson v. Gould, 20 Pick. 134; Ames 234. Wells v. Calnan, 107 Mass. 514. Allyn v. Allyn, 154 Mass. 570 (where plainly implied that vendee took the chance). 89 This is sometimes said to be the legal rather than the equitable rule, but it appears to prevail in equity in Massachusetts and the following other jurisdictions: New Hampshire, Maine, Oregon and New York. Cases in all these except New York have held vendor liable even though vendee in possession, h For a discussion of this rule in a satirical vein, see "The Lawyers' Ignorance of the Law" in the Outlook for September 5, 1908. SOME SPECIFIC GROUNDS FOR RELIEF 85 CHAPTER VI. SOME SPECIFIC GROUNDS FOR RELIEF A. ACCIDENT. B. MISTAKE. 1. Excusable Ignorance of a Material Matter a. Mistakes of Law. b. Mistakes of Fact. 2. Mistakes in Written Instruments. 3. Relief Generally. C. FRAUD. 1. Jurisdiction. 2. Constructive Fraud. a. Apparent from the Bargain Itself. b. Presumed from the Circumstances of the Parties. c. Transactions Injurious to Third Per- sons Fraudulent Conveyances. d. Transactions Void as Against Public Policy. 3. Remedies in Fraud. a. Remedies at Law. b. Remedies in Equity. 86 EQUITY AND ITS REMEDIES A. ACCIDENT. Accident, as the term is used in equity, is an unfore- seen and unexpected event occurring to a party in- juriously affected by it, and not attributable to his neglect or misconduct, 1 which but for the relief in equity would result in an undue advantage to some other party. Equity has from earliest times relieved against the consequences of such accidents. Savannah Nat'l Bank v. Haskins, 101 Mass. 370. Pomeroy, sec. 823 (see, for a full definition). In the case of lost instruments under seal, there was early jurisdiction because of the impossibility of making profert at law, and, in the case of unsealed instruments, because of the impossibility of comply- ing with the legal right of the person paying to possess the note paid. In both cases equity required an indemnity bond from the plaintiff, to protect the defendant from the effects of an appearance of the instrument in the hands of a bona fide holder for value. Savannah Nat'l Bank v. Haskins, 101 Mass 370. Patton v. Kimball, 70 111. 72 (bond). In Massachusetts, before the courts had general equity jurisdiction, it was well settled (either as a rule of practice or of law) that recovery might be had at law on lost instruments provided the plain- tiff, if necessary to the protection of the defendant, gave an indemnity bond. Fales v. Russell, 16 Pick. 315 (bond). Munroe v. Weir, 177 Mass. 301 (no bond required). 1 Cases, referred by some writers to this general head of equity jurisdiction, seem to violate this requirement of the definition. SOME SPECIFIC GROUNDS FOR RELIEF 87 But such recovery is not allowed at law in Massachu- setts where a bond to indemnify would not ade- quately protect the defendant. Tuttle v. Standish, 4 Allen 481; (where defendant was an indorser; no recovery at law, though perhaps in equity). Savannah Nat'l Bank v. Haskins, 101 Mass. 370 (recovery in equity). Tower v. Appleton Bank, 3 Allen 387 (de- stroyed bank notes). Hinsdale v, Bank of Orange, 6 Wendell 678 (discussion on lost bank notes). Among the other accidents 2 from the results of which equity may relieve, are 1. The defective execution of powers, where the defect is a formal one. Coates v. Lunt, 210 Mass. 314. 2. Those that so prevent a defendant in an action at law, without any negligence on his part, or the part of his attorney, from setting up a good defense on the merits, that a judgment is rendered against him. See Chapter VIII, Part B, infra. 3. Certain kinds of forfeitures. 3 Relief from pecuniary forfeitures is a settled branch of equity. Relief from other kinds of for- feitures may be had in equity. J See generally Pomeroy, sees. 833-836; Eaton, chap. XI. 8 Some writers refer the whole subject of penalties and forfeitures, as applied to mortgages, etc., to the head of Accident. This is probably erroneous so far as pecuniary penalties are concerned. 88 EQUITY AND ITS REMEDIES Mactier v. Osborne, 146 Mass. 399 (acciden- tal breach of covenant in lease). Lilley v. Fifty Associates, 101 Mass. 432. 4. Certain contingencies arising in the settlement of estates, as payments made in good faith by execu- tors where later there proves to be a deficiency of assets. Story's Equity, sec. 90 et seq. 5. Alteration or mutilation of written instruments which would render them void or useless at law. Nickerson v. Sweet, 135 Mass. 514 (innocent change in interest rate in note). Niles v. Graham, 181 Mass. 41 (mutilation of patent assignment). But the equitable doctrine of accident may not be invoked to relieve one from the performance of a duty imposed by express agreement of the parties (except in the matter of relief from penalties in bonds). Milldam Foundry v. Hovey, 21 Pick. 417, at 441 (rule stated). Davis v. Alden, 2 Gray 309 (agreement to pay rent, with no provision against fire). Adams v. Nichols, 19 Pick. 275 (contract to build house; fire). The relief will not be granted against one equally entitled to equitable protection, as, for example, a bona fide purchaser without notice. Pomeroy, sec. 829. B. MISTAKE. Mistake, as a ground for affirmative relief in equity, is (1) Excusable ignorance of some material matter SOME SPECIFIC GROUNDS FOR RELIEF 89 of law or fact by which a party has been led to part with some right or to assume some obligation, or (2) An error or omission in a written instrument whereby it fails to express the actual agreement of the parties. 4 1. Excusable Ignorance. (a) Mistakes of Law. 5 A mere mistake as to general law by one party to a contract ordinarily affords, in the absence of fraud, no ground for relief at law or in equity. Utermehle v. Norment, 197 U. S. 40. Taylor v. Buttrick, 165 Mass. 547 (relief denied where ignorance of legal effect of voluntary settlement). Hunt v. Rousmaniere's Admr., 1 Peters 1; (creditor took power of attorney as se- curity. Debtor died. No relief. He got security he intended). But a clearly established mutual mistake of law "does create a basis for the interference of courts of equity, resting on discretion and to be exercised only in the most unquestionable and flagrant cases." In such cases the ground for relief is not that there has been a mistake of law, but that by means of a mistake of law the clear intent of the parties has failed of expression, 6 and that but for equitable relief there would result the unjust enrichment of one at the expense of the other. 4 Accident refers to an event external to the party injuriously affected and subsequent to some obligation; mistake is subjective, an erroneous mental condition at or before the incurring of an obligation. 5 Certain mistakes of law are considered mistakes of fact and remediable as such. See infra. 6 See Mistakes in written instruments, infra. 90 EQUITY AND ITS REMEDIES Reggio v. Warren, 207 Mass. 525 (full dis- cussion by Sheldon, J.). Griswold v. Hazard, 141 U. S. 260, (injunc- tion against suit on a ne exeat bond con- ditioned that the principal should "abide and perform" decrees of court; obligation thereunder to pay was misunderstood). Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45. So mistakes as to titles have been corrected, the word "heirs" substituted for "successors," the omission of words of inheritance supplied, a deed reformed to bind a partnership rather than an indi- vidual member, and a mortgage in the name of an agent rectified by inserting a principal's name. 7 J. P. Eustis Mfg. Co. v. Saco Brick Co., 198 Mass. 212 (and cases there collected). Mistake of law by one party to a contract, result- ing from "undue influence" of, or from "undue con- fidence" in, the other party, may be ground for relief as fraud. Eaton's Equity, sec. 112. See Constructive Fraud, infra. Money paid under mistake of law probably cannot, in the absence of fraud, be recovered at law or in equity. 8 It may, however, where paid under a mistake of fact. Haven v. Foster, 9 Pick. 112 (mistake of foreign law, a fact). 7 In this class of cases, the mistake is sometimes one of law and sometimes a mistake of the scrivener. See Mistakes in Written In- strument*, infra. 8 But see the reasoning of Sheldon, J., in Reggio v. Warren, 207 Mass. 525, regarding "unjust enrichment." SOME SPECIFIC GROUNDS FOR RELIEF 91 Gould v. Emerson, 160 Mass. 438 (mistake of fact; equity). (b) Mistakes of Fact. Mutual 9 mistake (not the result of a neglect of plaintiff's duty) as to a fundamental fact, past or present 10 (such as the existence or the identity of the subject matter), is such mistake of fact as to be the ground for relief in equity from the consequences of an agreement based thereon. Hammond v. Allen, 11 Peters 63 (subject matter had ceased to exist before contract was made). 9 There is much discussion in the cases and the textbooks as to whether or not mistakes, to be the basis of a remedy, must be mutual. Much of this discussion results from a lack of clear definition of the word "mutual." In a case such as Kyle v. Kavanagh (103 Mass. 356), the plaintiff was negotiating about one property and the defendant another. Strictly speaking, the mistake was not mutual. They did not share the same error, but each was in error as to the understanding of the other and there was no valid contract at law or in equity. In Dzuris v. Pierce (216 Mass. 132), the court says that such a misunderstanding touching the identity of the subject matter, in order to be ground for relief in equity, must not have arisen from the voluntary negligence or failure to obtain reasonably accessible knowledge on the part of the plaintiff, in the absence of fraud or duress. But, if there is no contract, why should equity not always relieve, by canceling the instrument, if there is one? Does not the court mean that where the language adequately describes the sub- ject matter but the plaintiff erroneously believes it refers to some other subject matter, he can only have relief under the foregoing circumstances? In Dzuris v. Pierce, the deed correctly described the property the grantor intended to sell, but not that the grantee thought he had bought. The mistake, therefore, was unilateral and relief was only had there because of facts which in similar cases have been called constructive fraud. In other cases, such as Spurr v. Benedict (99 Mass. 463) cited by Merwin as a case founded on unilateral mistake, there was clearly a mutual mistake as to the identity of the subject matter caused by misrepresentations, made through ignorance, by the defendant, who was the grantor in a deed. 10 Mistake as to probability of occurrence of an event in the future is not mistake of fact, withir the foregoing definition. Parke v. Boston, 175 Mass. 463. 92 EQUITY AND ITS REMEDIES Long v. Athol, 196 Mass. 497 (relief for contractor who relied upon erroneous engineering figures furnished by town). Gould v. Emerson, 160 Mass. 438 (note drawn for erroneous amount on settle- ment of partnership accounts). Bridgewater Iron Co. v. Enterprise Ins. Co., 134 Mass. 433 (existence of previous in- surance not a fundamental fact). But mutual mistake as to some matter collateral to the bargain itself (such as the value of property) is not a ground for relief in equity. 11 Hecht v. Batchelder, 147 Mass. 335 (no relief where promissory note is bought through broker, with belief of all parties that maker was solvent. At law; but probably same rule in equity). Wood v. Boynton, 64 Wis. 265 (stone sold for one dollar, mutually considered a topaz, proved to be diamond. No relief). Mutual mistake as to one's existing legal title, duties or liabilities of property or contract, or as to a right of ownership dependent on a special law or a foreign law, is analogous to mistake of fact and may be the basis of relief. 12 Livingstone v. Murphy, 187 Mass. 315 (mistake as to title leading to mistake in written instrument). Tarbell v. Bowman, 103 Mass. 341 (mistake as to area). 11 But see Chapman v. Cole, 12 Gray 141. (Trover for coin thought to be fifty-cent piece but in fact a private coin of gold). 13 This, of course, does not apply to compromises entered into for the purpose of settling rights. Pomeroy, sec. 849. SOME SPECIFIC GROUNDS FOR RELIEF 93 Short v. Currier, 153 Mass. 182 (mistake as to later incumbrances. Remedy was the changing of a mortgage discharge to an assignment). Spurr v. Benedict, 99 Mass. 463 (innocent misrepresentations of essential features of land sold). Boyden v. Hill, 198 Mass. 477 (a mistake by agreed vendor as to title, not mutual. No equitable relief for him, sued in con- tract). Haven v. Foster, 9 Pick. 112 (mistake as to foreign law). Shapira v. Wildey Sav. Bank, 213 Mass. 498 (bill to rescind purchase from de- fendant of a mortgage, part of which had been released). Mistake usually must be mutual to be ground for relief as such, unless the mistake of a single party is not due to his culpable negligence, and is as to a fun- damental fact in the transaction which was known or ought to have been known to, and should have been disclosed by, the other party, or unless there has been fraud or duress, actual or constructive. Dzuris v. Pierce, 216 Mass. 132. Clerk v. Boston, 179 Mass. 409 (contract. Voluntary ignorance or involuntary mis- interpretation affords no relief). Short v. Currier, 153 Mass. 182 (unilateral error as to condition of title relieved). Chute v. Quincy, 156 Mass. 189. Inasmuch as a claim that there has been a funda- mental mistake, so that there has been no valid agreement, is a disaffirmance of the alleged con- tract, the only relief that can be given is a cancel- lation of such contract, if executory, or a rescission, 94 EQUITY AND ITS REMEDIES if executed. Equity cannot make a new contract for the parties. Long v. Athol, 196 Mass. 497. Shapira v. Wildey Sav. Bank, 213 Mass. 498 (decree placing parties in statu quo). 2. Mistakes in Written Instruments. If a written instrument inter vivos clearly fails, through its form, or through an error of the scrivener, to express the prior agreement of the parties, equity will reform it upon clear proof of the agreement and of the mutual mistake in the writing, or the equiva- lent thereof (i. e. knowledge on the part of one that the other is laboring under a mistake as to the cor- rectness of the writing). Canedy v. Marcy, 13 Gray 373 (whole estate conveyed, through error, instead of "undivided two-thirds"). Bruce v. Bonney, 12 Gray 107 (discharge of mortgage on margin, instead of assign- ment). Snell v. Atlantic F. M. Ins. Co., 98 U. S. 85 (mistake in name ol insured in policy). Hodge v. Cole, 140 Mass. 116 (failure of holder of note to indorse, on transfer). Goode v. Riley, 153 Mass. 585 (both par- ties understood language in deed to describe smaller tract than actually de- scribed). Gaylord v. Pelland, 169 Mass. 356 (seal omitted ^by ^mistake, may be added by equity). Coates v. Lunt, 213 Mass. 401 (bill to require heirs of one who had defectively executed power, to confirm the deed). SOME SPECIFIC GROUNDS FOR RELIEF 95 Kennedy v. Poole, 213 Mass. 495 (to reform mortgage intended to be a deed. See decree of reformation) . J. P. Eustis Mfg. Co. v. Saco Brick Co., 198 Mass. 212 (see cases there collected). But if one party understood the original agree- ment to be substantially as written, the other may not ordinarily have relief for mistake, in the absence of fraud. 13 Sawyer v. Hovey, 3 Allen 331 (rule clearly stated). German- American Ins. Co. v. Davis, 131 Mass. 316. Page v. Higgins, 150 Mass. 27 (combination of unilateral mistakes). Chute v. Quincy, 156 Mass. 189. But a donor may have reformation of an instru- ment of gift that fails to express his intention at the time he made the gift. The donee, being a volun- teer, is not entitled to relief. German v. Grim, 32 Ind. 255. Eaton v. Eaton, 15 Wise. 259; 2 Ames 244. Mistakes in wills are not corrected in equity (except that the court may interpret latent ambiguities as to names, descriptions, etc.). Polsey v. Newton, 199 Mass. 450 (the word "grand-daughters" will not be reformed to "daughters"). 18 Mistake is sometimes said to be the formation of an incorrect mental picture of a situation. Fraud is mistake plus the unlawful causing of the incorrect mental picture by another. 96 EQUITY AND ITS REMEDIES Otis v. Coffin, 7 Gray 511 (devise in English will of "property at Boston, North America" held to include land in Brighton, Mass.). Inasmuch as a claim that a written instrument does not express the agreement of the parties, is an affirmance of the original contract, the only relief given under such circumstances is that of reforma- tion to conform to the agreement. "Mistake of Fact" (E. H. Abbott, Jr.), Harvard Law Review, June, 1910. 3. Relief Generally. Relief should be sought diligently, after the dis- covery of mistake. Canedy v. March, 13 Gray 373 (although, in this case, relief was given twenty years after deed, it was shortly after discovery of error). Gould v. Emerson, 160 Mass. 438 (statutes of limitations run from discovery, only). If the party against whom the equitable right existed has died, suit may be brought against his heirs or personal representatives, who are volunteers. Kennedy v. Poole, 213 Mass. 495. Coates v. Lunt, 213 Mass. 401. A party will usually be relieved from his own mistake only when no third person, without notice, has obtained rights; but he may recover the value of the property in place of the property, in an appro- priate case. Tarbell v. Bowman, 103 Mass. 341. SOME SPECIFIC GROUNDS FOR RELIEF 97 Dzuris v. Pierce, 216 Mass. 132 (where rights of an intervening mortgagee were protected). The evidence required in Massachusetts as a basis for reforming a written instrument is stronger than that required in ordinary civil cases. It must be beyond a reasonable doubt. Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 315. German American Ins. Co. v. Davis, 131 Mass. 316. Parol evidence, by the general rule, is competent to prove the existence of a mistake in a written instrument. Snell v. Atlantic etc. Ins. Co., 98 U. S. 85. Kennedy v. Poole, 213 Mass. 495. Where it is sought to correct a mistake by adding to an instrument something required by the Statute of Frauds to be in writing, the original agreement must have been in writing, unless the defendant for some reason is precluded from setting up the Statute of Frauds as a defence. Glass v. Hulbert, 102 Mass. 24. Williams v. Carty, 205 Mass. 396. If the plaintiff is an agent, and his principal who should have been liable under a contract is a non- resident, the plaintiff, instead of reformation, may have the defendant enjoined from enforcing the contract against him. J. P. Eustis Mfg. Co. v. Saco Brick Co. 198 Mass. 212. 98 EQUITY AND ITS REMEDIES The relief may take the form of re-establishing a mortgage of which a discharge has been taken in- stead of an assignment. Short v. Currier, 153 Mass. 182. C. FRAUD. 1. Jurisdiction. The jurisdiction of equity over actual fraud was earlier than that of the common law 14 and in Eng- land is today general. 16 In America, while the juris- diction of equity to administer equitable remedies in fraud (as well as to deal with cases of purely equitable fraud) 16 is exclusive, and to grant pecuniary remedies is concurrent, yet the equitable jurisdiction will commonly not be exercised in cases where the legal remedy is plain, adequate and complete. Pomeroy, sec. 914. Cook v. Scheffreen, 215 Mass. 444 (to set aside exchange of property). The tendency in Massachusetts, however, since the courts have had full equity jurisdiction, has been toward the liberal English rule as to the jurisdiction of ^courts of equity in cases of fraud. Billings v. Mann, 156 Mass. 203 (cancella- tion of deed; though writ of entry might have been had). Fuller v. Percival, 126 Mass. 381 (cancel- lation of notes fraudulent as to a partner). Stewart v. Joyce, 201 Mass. 301 (treasurer of company who put out untrue statement of condition in order to sell stock). Fraud, going to the motives of a conveyance, * Hill v. Lane, L. R. 11 Eq. 215. 15 Pomeroy, sec. 912. 16 See Constructive Fraud, infra. SOME SPECIFIC GROUNDS FOR RELIEF 99 renders it voidable. In England, when a convey- ance is avoided for fraud, reconveyance is regarded as necessary; in Massachusetts, upon avoidance, a writ of entry is permitted in a proper case, but the equitable remedy, requiring a reconveyance, is con- current. Billings v. Mann 156 Mass. 203. Speaking generally, those acts which would be sufficient ground for an action of tort for deceit 17 are sufficient for equitable relief where the relief afforded at law would not be adequate. Thompson v. Barry, 184 Mass. 429 (mis- statements of agent in purchasing prop- erty). Batty v. Greene, 206 Mass. 561 (to compel restoration of money to man by woman who had lived as wife, knowing she had husband living). Burleson v. Woodin, 212 Mass. 323 (decree for re-assignment of mortgage obtained by promoter). Stewart v. Joyce, 205 Mass. 371 (rescission of sale of stock; bill by vendor). Westlake v. Dunn, 184 Mass. 260 (deed fraudulently obtained and recorded set aside, even though innocent mortgagee had loaned). Johnson v. Scott, 205 Mass. 294 (bill to rescind purchase of land in Maine, because of misrepresentation as to title). Motherway v. Wall, 168 Mass. 333 (fraudu- lent statement as to grantor's title). Brackett v. Perry, 201 Mass. 502 (land owner induced to sell by representation 17 "It is still an open question here whether an action for a false representation of law will lie." Kerr v. Shurtleff, 218 Mass. 167. 100 EQUITY AND ITS REMEDIES of purchaser that no broker had acted in matter). Pogrotsky v. Levatinsky, 218 Mass. 116 (to compel re-assignment of mortgage obtained by misrepresentations). Equity may relieve from the results of such fraud. Brown v. Statter, 206 Mass. 119 (by re- straining the collection of notes, giving damages, etc.). Stewart v. Joyce, 205 Mass. 371 (bill by vendor of stock; defendant having parted with it, damages were decreed with value as of date of transfer of stock; different rule if defendant sold after bill). An unauthorized fraudulent representation (or promise) of an agent is good ground for rescission in a suit by the purchaser, against the principal. Rackemann v. Riverbank Imp. Co., 167 Mass. 1. Thompson v. Barry, 184 Mass. 429. 2. Constructive Fraud. Constructive fraud is that presumed by a court of equity from public policy or from the relationship and circumstances of the parties wholly apart from their intention. Under this designation are included, a. Fraud apparent from the bargain itself. Inadequacy of consideration, while not of itself fraudulent, if gross and supported by other slight evidence, warrants a finding of constructive fraud. Graffam v. Burgess, 117 U. S. 192 (where defendant, for $200, got property worth $10,000). Burrowes v. Locke, 10 Vesey, 471. SOME SPECIFIC GROUNDS FOR RELIEF 101 Davis v. Chicago Dock Co., 129 111. 180 (where defendant got $230,000 property at execution sale for $17.24). Illegal contracts, or such general limitations as those in restraint of marriage or business, are fraud- ulent. Otis v. Prince, 10 Gray 581. Contracts unduly affecting officers of the govern- ment or of corporations are fraudulent. West v. Camden, 135 U. S. 507 (permanent job to employees). b. Fraud presumed from the circumstances of the parties. 1. Where one party is infirm, insane, drunk or under duress, the contract is voidable as to him. 18 These are sometimes said to be cases of "undue in- fluence." Smith v. Kenney, 213 Mass. 6 (deed from aged man by undue influence). Campbell v. Lima, 212 Mass. 11 (deed from aged woman by undue influence). 2. Where one party holds a fiduciary or confiden- tial relation with the other, the latter way avoid. Purchases from, or sales to, himself, of trust prop- erty 19 by a trustee or by an attorney, by an agent of property entrusted him to sell, by an executor or administrator of any part of a decedent's estate, or by a guardian of his ward's property, whether directly or indirectly, at private sale or public auction, 18 In these cases, where the condition is established, there is a presumption of invalidity which may be overcome. Pomeroy, sec. 944. 19 For a case where conveyance to one of three trustees, through a conduit, was held good, see Warren v . Pazolt, 203 Mass. 328. 102 EQUITY AND ITS REMEDIES are voidable at the election of the cestui, principal, heir, or ward, without any proof of actual fraud or undue influence. Hawkes v. Lackey, 207 Mass. 425 (authori- ties collected). Kelley v. Allin, 212 Mass. 327. Rolikatis v. Lovett," 213 Mass. 545 (an attorney who bought at foreclosure). Contracts and conveyances, whether with or with- out consideration, between a lawyer and his client, a physician and his patient, a clergyman and his parishoner, a promoter and his corporation, or any other trusted advisor and his dependent, may be set aside 11 (or otherwise dealt with) in equity upon slight evidence of undue influence, or of failure to provide the dependent party with the fullest disclosure of facts 22 or with an independent advisor. This is also true where there has been a contract or con- veyance which is a breach of a fiduciary duty. Huguinon v. Basley, 15 Ves. 273 (will made by patient in favor of physician). Gargano v. Pope, 184 Mass. 571 (champart- ous contract between lawyer and client). Hill v. Hall, 191 Mass. 253 (sale of securities by lawyer to client). American Circular Loom Co. v. Wilson, 198 Mass. 182 (factory superintendent who takes assignment from inventor) 20 But see Clark v. Delano, 205 Mass. 224, where the agents' employment had been terminated by circumstances beyond his control. See also Manheim v. Woods, 213 Mass. 537, where trans- action between attorney and client was found to be good, on the facts. a As to who should be parties plaintiff where the defrauded per- son had died, see Parker v. Simpson, 180 Maes. 334. 22 Some of these cases may properly be classed under Actual Fraud, because there is in them the element of misrepresentation by a con- cealment of material facts by one bound to disclose. SOME SPECIFIC GROUNDS FOR RELIEF 103 Essex Trust Co. v. Enwright, 214 Mass. 507 (newspaper reporter obtained lease of property absolutely essential to his paper). Old Dominion Copper Co. v. Bigelow, 188 Mass. 315; 199 Mass. 488, 203 Mass. 159; 225 U. S. Ill (undisclosed profits of a promoter 23 recovered by corporation). Old Dominion Copper Co. v. Lewisohn, 136 Fed. Rep. 915; 148 Fed. Rep. 1020; 210 U. S. 206. Hawkes v. Lackey, 207 Mass. 425 (old ladies and law student). Butler v. Gleason, 214 Mass. 248 (release obtained by physician from a patient relying on his statement, of no value in suit by her against him). United Zinc Companies v. Harwood, 216 Mass. 474 (secret profits by director). c. Those transactions injurious to third persons. The most important class of these is Fraudulent Conveyances. A conveyance by a debtor with intent to delay hinder or defraud his creditors, although good as between the parties, is, since 13 Elizabeth chap. 5 void as against creditors. Mass. Rev. Laws, ch. 159, sec. 3, cl. 8 (the 23 For a case where all the stock was issued to the promoter and he was not liable to the corporation for profits, see Stratton Co. v. Stratton, 206 Mass. 117. 24 Such conveyances are usually fraudulent as to creditors. But there may also be fraud as to the marital rights of an intended spouse which equity will remedy where grantee is a volunteer or had knowl- edge of the fraud. Allen t;. Allen, 213 Mass. 29. Chase v. Phil- lips, 208 Mass. 245. 104 EQUITY AND ITS REMEDIES present Massachusetts statute to this effect). 26 Mass. Rev. Laws, ch. 153, sec. 3 (which excludes from valid gifts of husband to wife, 26 those in fraud of creditors). Shepherd v. Shepherd, 196 Mass. 179 (discussion of when a wife is a creditor of her husband, so as to get deed set aside). Present statutes usually include transfers of any "property, right, title or interest, real or personal." Such language covers choses in action and mortgages. Drake v. Rice, 130 Mass. 410 (assignment of interest in account). Gragg v. Martin, 12 Allen 498 (assignment of future wages). King v. Cram, 185 Mass. 103 (assignment of life insurance). York v. Flaherty, 210 Mass. 35 (payment of life insurance premiums and assign- ment of policies)". At common law one might prefer a single creditor by satisfying his claim in full, and the act was not fraudulent as to other creditors. Under insolvency and bankruptcy laws transfers for such purposes may usually be set aside if made within a given period. The remedy in equity, 28 to reach property con- 28 This statute has reference not only to fraudulent transfers, but also to purchases directly in the name of another, with fraudulent intent. 26 Valid to extent of $2000 if wearing apparel, articles of personal ornament, and articles necessary for her personal use. 27 See St. 1907, ch. 576, sec. 73, protecting policies payable to wife. See also Eldredge v . Mutual Life Ins. Co., 217 Mass. 444. 28 At law, -the debtor may be sued and the property fraudulently conveyed specially attached, under Mass. Rev. Laws, ch. 167, sees. 38-65. As the question of fraud is only settled after a writ of entry, this method is rather cumbersome compared with the equitable remedy. SOME SPECIFIC GROUNDS FOR RELIEF 105 veyed in fraud of creditors, is a bill to reach and apply an equitable interest, 29 brought by a creditor (with the debtor and his grantee as defendants), or a bill for cancellation and reconveyance by the debtor's executor, 30 administrator or bankruptcy trustee. Crompton v. Anthony, 13 Allen 33 (by sin- gle creditor). Busiere v. Reilly, 189 Mass. 518 (by a devisee to whom the right to sue was devised). Coggan v. Ward, 215 Mass. 13 (by trustee in bankruptcy to recover chattels alleged to have been fraudulently transferred). The transfers voidable under modern statutes are those made with an intent to defraud his creditors, by one actually insolvent, heavily in debt, or about to undertake a hazardous business, or by one who anticipates suit because of a present possible liability. Parkman v. Welch, 19 Pick. 231 (heavily in debt). Neuberger v. Klein, 134 N. Y. 35 (about to undertake hazardous business). Livermore v. Boutelle, 11 Gray 217 (threat- ened divorce). Shepherd v. Shepherd, 196 Mass. 179 (threatened separate support proceedings). Leonard v. Bolton, 153 Mass. 428 (threat- ened bastardy proceedings). Benson v. Benson, 70 Md. 253 (by a bank- rupt). 29 Such a bill need not be for the benefit of other creditors. Sillo- way v, Columbia Ins. Co., 8 Gray 199. 80 An executor or administrator ought, before bringing bill, to get a license of probate court to sell. Stockwell v. Shalit, 204 Mass. 270. If the executor himself is the fraudulent grantee, the creditor may have him removed. Fourth Nat'l Bank v. Mead, 214 Mass. 549. But this is not now necessary, Mass. St. 1915, ch. 151, sec. 7. 106 EQUITY AND ITS REMEDIES In such cases, ordinarily the grantee has paid no consideration but holds on a secret trust to reconvey. But even if a grantee has paid full consideration, if he participates in a fraudulent intent of the grantor, the sale may be set aside. Wadsworth v. Williams, 100 Mass. 126. But if the grantee has given a fair consideration and has no knowledge" of the fraudulent intent of the grantor at the time of his purchase, a transfer to him will not ordinarily be set aside." Pierce v. O'Brien, 189 Mass. 58 (and cases therein cited). Holmes v. Winchester, 133 Mass. 140 (wife's release of dower is a valuable con- sideration. Transfer of stock good, not- withstanding her knowledge at time oj transfer). If there is actual fraudulent intent known to gran- tee, subsequent as well as pre-existing creditors may avoid the transfer and so may the grantor's bank- ruptcy trustee or assignee in insolvency. Day v. Cooley, 118 Mass. 524, (and cases therein cited). 33 Even transfers without consideration, of real or personal property, when made without fraudulent intent, are good as against all but creditors existing at the time; and such a conveyance "especially if made on the meritorious consideration of blood, or affection for children, or as a settlement to a wife, 81 Knowledge of fraud, and not "reasonable cause to have knowl- edge," is required in Massachusetts. 82 But in many states sales of merchandise in bulk, not in the usual course of trade, is made by statutes fraudulent, if without notice to creditors, Mass. St. 1903, ch. 415. 85 Quaere. For how long does this right of subsequent creditora persist? SOME SPECIFIC GROUNDS FOR RELIEF 107 is not as a matter of law fraudulent." Deep indebted- ness may furnish strong evidence of fraud, but the question is one of fact for the jury. Matthews v. Thompson, 186 Mass. 14 (rule stated). Prewit v. Wilson, 103 U. S. 22 (promise of marriage on adequate consideration where wife ignorant of fraudulent intent, at time of ante-nuptial settlement). Huntress v. Hanley, 195 Mass. 236 (promise of marriage adequate consideration, con- veyance being made before marriage). Deshon v. Wood, 148 Mass. 132 (promise before marriage to transfer after, 34 in- adequate, where actual fraudulent intent, though wife ignorant). Clark v. McMahon, 170 Mass. 91 (in absence of fraud, voluntary conveyance to wife through third person not void as to cred- itors). Chase v. Phillips, 208 Mass. 245 (conveyance held not in fraud of future husband's marital rights). Briggs v. Sanford, 219 Mass. 572 (convey- ance to wife in satisfaction of equitable obligation not set aside for creditors). Under certain circumstances, a conveyance by one insolvent, with no consideration moving from the transferee may not be fraudulent. Bailey v. Wood, 211 Mass. 37 (execution of an oral trust imposed by a decedent from whom property was inherited). 84 In this case, the promise was oral and was not executed until after marriage. It was not enforceable as an antenuptial contract. 108 EQUITY AND ITS REMEDIES Hutchins w.Mead, 36 220 Mass. 348 (conveyance to wife in satisfaction of equitable obli- gation). A conveyance fraudulent as against creditors is good as between the parties. If the plaintiff can show a prima facie right to recover (as, for example, by reason of a resulting trust in his favor, or a con- tract to reconvey) without developing the fraud in the transaction, the court will not permit the de- fendant to set up his own fraud, or the plaintiff's fraud against a third person, as a defense. Lufkin v. Jakeman, 188 Mass. 528 (resulting trust). Taft v. Henry, 219 Mass. 78 (contract to convey). Schmidt v. Schmidt, 216 Mass. 572. At common law a conveyance of property to a creditor in satisfaction of a debt, made by one who was insolvent, was not fraudulent as to other credit- ors. Insolvency and bankruptcy laws, however, make such a transfer a preierence, and fraudulent, if within a given period before adjudication. Stockwell v. Shalit, 204 Mass. 270. U. S. Bankruptcy Act 1898, sec. 60. 85 The effect of certain transactions between husband and wife are thus summarized in Hutchins v. Mead, 220 Mass. 348 by Rugg, J., "A husband may hold the title to property in his own name, which in truth belongs to his wife, upon a valid trust for her benefit. Prop- erty originally belonging to her, which she has handed over to him and which has been kept by him for a considerable period, may be found to constitute such a trust. If she has permitted him to hold it so that he has been enabled to and has in fact gained credit on the strength of his apparent ownership thereof, she may be estopped to claim it. Where the husband has recognized the existence of the trust and has discharged his fiduciary obligation by transferring the corpus of the trust to his wife, there is a sufficient consideration to support the conveyance. In a sense the trust has been executed and it is not necessary to imagine whether it might have been en- forced at the suit of the wife." SOME SPECIFIC GROUNDS FOR RELIEF 109 d. Transactions void as against public policy. There are certain other transactions which from their very nature are fraudulent as to third persons and therefore void as against public policy. Palmbaum v. Magulsky, 217 Mass. 306. 3. Remedies in Fraud. Cases involving fraud are so numerous that the choice of a particular remedy is often of the highest importance. Some of the more common follow: a. Remedies at Law. 1. Action of tort for deceit. Huntress v. Blodgett, 206 Mass. 318. Brackett v. Perry, 201 Mass. 502. 2. Action of tort for deceit, to recover consider- ation paid, accompanied by tender back (rescission of an executed contract). Nash v. Minn. Title Ins. & Trust Co., 163 Mass. 574. 3. Action of contract, for fraudulent violation of agreement. Tuttle v. Batchelder & Lincoln Co., 170 Mass. 315 (fraudulent violation of agreement to appraise stock). 4. Action of contract against a debtor, attaching by means of general or special attachment (in the case of real estate) or by means of trustee process (in the case of personalty) property fraudulently con- veyed to a third person. Mass. Rev. Laws, ch. 167, sees. 38-65 (attachment). Mass. Rev. Laws, ch. 189 (trustee process). 5. Action of contract to recover money obtained by fraud. 110 EQUITY AND ITS REMEDIES Trecy v. Jefts, 149 Mass. 211. Hagar v. Norton, 188 Mass. 47. 6. Writ of entry, after avoidance of a conveyance (or foreclosure) for fraud. Marvel v. Cobb, 200 Mass. 293 (the proper remedy for one out of possession). 7. By way of defense (legal or equitable) to actions at law. Lima v. Campbell, 219 Mass. 253 (discussion of fraud as legal defence). Dexter v. Fuller, 217 Mass. 219. Harvey v. Squire, 217 Mass. 411 (but the fraud must have been part of the same transaction and have induced the contract). 8. Action of tort for personal injuries (in which case a release obtained by defendant, who was ia a fiduciary relation to plaintiff, may not avail de- fendant). Butler v. Gleason, 214 Mass. 248. b. Remedies in Equity. 1. Reformation of a deed or other instrument (as in case of fraudulent alteration). Niles v. Graham, 181 Mass. 41. 2. Cancellation 36 of an executory contract. Fuller v. Percival, 126 Mass. 381 (note). 3. Rescission of an executed contract (with or without damages). Cook v. Scheffreen, 215 Mass. 444 (rescission of exchange of property). 56 See the interesting decree in Rice v. Merrill, 215 Mass. 419, under which decree a trust was created for the benefit of the plain- tiff, an aged person who brought a bill to set aside a deed for support. SOME SPECIFIC GROUNDS FOR RELIEF 111 Hill v. Hall, 191 Mass. 253. O'Shea v. Vaughn, 201 Mass. 412 (giving incidents of rescission). Murphy v. Robinson, 214 Mass. 585 (giving various incidents of relief by cancellation of deeds). Stewart v. Joyce, 201 Mass. 301; s. c. 205 Mass. 371 (rescission, with rule for dam- ages). 4. Compensation in damages. Old Dominion Copper Co. v. Bigelow, 188 Mass, at 329 (violation of duty on the part of one in a fiduciary capacity, an "equitable tort"). Brown v. Statter, 206 Mass. 119 (compensa- tion for a partial failure of consideration, through fraud). 5. Specific redelivery (with execution of any papers necessary to revest legal title) of property fraudulently conveyed or detained that cannot be replevied, or of money or property obtained by undue influence. Batty v. Greene, 206 Mass. 561 (money obtained from man by woman fraudulently married to him). Gibbens v. Peeler, 8 Pick. 254. Holden v. Hoyt, 134 Mass. 181 (mortgage and note). Porter v. Stuart, 203 Mass. 46 (lodging house furniture obtained by agent's fraud). Stone v. Sargent, 220 Mass. 445 (insurance policy). 6. Injunctions against enforcement of obligations obtained by fraud; and temporary injunctions to prevent changes in subject matter during litigation. Metcalf v. Williams, 104 U. S. 93 (against enforcing judgment). 112 EQUITY AND ITS REMEDIES Brown v. Statter, 206 Mass. 119 (against collecting notes, etc.). 7. Redemption from fraudulent foreclosure. Clark v. Storey, 208 Mass. 36 (defendants chargeable with net profits; but allowed compensation for services). 8. By way of defense to specific performance. Features of the Equitable Remedies. The right to sue for fraud is not assignable at law or in equity. United Zinc Companies v. Harwood, 216 Mass. 474. But rights of action in equity to set aside instru- ments obtained by fraud are apparently assignable and pass by will. Busiere v. Reilly, 189 Mass. 518. There is a presumption that men act honestly. When, therefore, fraud is claimed, it must be alleged in detail and proven. Barron v. International Trust Co., 184 Mass. 440. A court of equity will not aid one who is guilty of laches. Marvel v. Cobb, 200 Mass. 293. A court of equity will refuse to act when its aid is sought by one who is a party to a fraud, to secure his share or the whole, of a fund created by that fraud, if his right to equitable relief is based upon the fraud. Wilson v. Jackson, 204 Mass. 432. Harvey v. Varney, 98 Mass. 118. An action in equity to follow trust property pro- cured by fraud does not fail on the death of the SOME SPECIFIC GROUNDS FOR RELIEF 113 defendant, although an action of tort for fraud fails under such circumstances. Love joy v. Bailey, 214 Mass. 134. In a case of constructive fraud, the Statute of Frauds has no application. Mass. Rev. Laws, ch. 147, sec. 1. Lurie v. Pinanski, 215 Mass. 229. In the absence of fraud, nothing less than conduct that amounts to an abrogation of the contract or goes to the essence of it, or takes away its foundation, can be made ground for rescission by the other party. Runkle v. Burrage, 202 Mass. 89. In certain cases one may have the benefit of sub- rogation though he has been guilty of constructive fraud. Adams v. Young, 200 Mass. 588. Where a bill is brought to rescind a contract for fraud and no fraud is found, the bill will not be re- tained to modify the contract. Equity will not construct a new agreement for the parties. Revere v. Revere Water Co., 218 Mass. 161. The effect of a rescission of a conveyance obtained by fraud is to restore to the defendant a right of action he gave up in consideration of the conveyance. Lima v. Campbell, 219 Mass. 253. Fraud in the making of a contract may present a defence to an action on it where antecedent fraud would not (because merged in the contract). Colonial Development Co. v. Bragdon, 219 Mass 170. A beneficiary under an oral trust may compel one who has fraudulently obtained title from the trustee 114 EQUITY AND ITS REMEDIES to restore it. That there is no trust within the Statute of Frauds is no defense to the person thus fraudulently acting. But the trustee may set up such defense. Reardon v. Ilcardon, 219 Mass. 594. SPECIFIC PERFORMANCE OF CONTRACTS 115 CHAPTER VII. SPECIFIC PERFORMANCE OF CONTRACTS. A. AFFIRMATIVE CONTRACTS GENERALLY. a. Contracts about Land. b. Contracts about Chattels. c. Stocks and Bonds. d. Agreements to Arbitrate and to Give Options. e. Contracts Involving the Performance of Labor. B. NEGATIVE CONTRACTS GENERALLY. a. Involving Personal Service. b. Limiting the Use of Property. c. Agreement not to Compete: 1. Express agreements; 2. Agreements implied from sale of good will. C. RELIEF FOR AND AGAINST THIRD PERSONS. a. Legal Easements. b. Certain Covenants Running with Land. c. Restrictions or Equitable Easements. D. STATUTE OF FRAUDS PART PERFORMANCE. E. PARTIAL PERFORMANCE. F. TIME THE ESSENCE OF THE CONTRACT. G. MARKETABLE TITLE. H. MUTUALITY. I. NECESSITY AND ADEQUACY OF CONSIDERATION. J. SUNDRY DEFENSES AND INCIDENTS OF THE REMEDY. 116 EQUITY AND ITS REMEDIES "Specific performance is a judicial order that a legal contract be carried into effect." The remedy is strictly an equitable one. 1 At common law a party to a contract has his option to perform or to pay damages. Ames, 37-38, note (a history of the rise of the remedy). The right to specific performance of an agreement is not absolute but rests in the discretion of the court, 2 to be exercised upon equitable considerations and in view of all the circumstances of the case. Banaghan v. Malaney, 200 Mass. 46 (superior mental ability of plaintiff, though not sufficient fraud to avoid contract). Curran v. Holyoke Water Power Co., 116 Mass. 90 (rights of third person are an equitable consideration). Chute v. Quincy, 156 Mass. 189 (defendant had a contract more onerous than he supposed). Richardson Shoe Mach. Co. v. Essex Mach. Co., 207 Mass. 219 (conditions changed so that to enforce contract would work very result contract was intended to prevent). 1 The penalty for disobedience is, of course, punishment for con- tempt. Under certain conditions (see Mass. St. 1910, ch. 376) the court may appoint a master to convey property under decree. Eastern Bridge etc. Co. v. Worcester etc., 216 Mass. 426. 2 Refusal of specific performance does not prevent a plaintiff suing at law for his damages and there proving ground on which decree was entered. The matter is not res judicata. Though refus- ing specific performance/ an equity court may assess damages, where there is no remedy at law (as in Jackson v. Stevenson, 156 Mass. 496), but this is discretionary, not ex debito justiciae. It may allow the plaintiff to amend to an action at law (as in Merrill v. Beckwith, 168 Mass. 72) or may give him an election to proceed for damages at law or in equity (as in Levi v. Worcester Con. St. Ry., 193 Mass. 116). Institution for Savings, etc. v. Puffer, 201 Mass. 41. Banaghan v. Malaney, 200 Mass. 46. SPECIFIC PERFORMANCE OF CONTRACTS 117 Mansfield v. Sherman, 81 Maine 365; Ames 385. Wentworth v. Manhattan, 216 Mass. 374. Nickerson v. Bridges, 216 Mass. 416 (see infra). Specific performance is decreed 1. When by reason of the specific subject matter of the contract and the impossibility of obtaining in the open market its exact counterpart, damages will not be an adequate compensation for its breach. 2. When by reason of special features making it impossible to arrive at a legal measure of damages, such compensation is impracticable. 3 Pomeroy, sec. 1401. Butterick Pub. Co. v. Fisher, 203 Mass. 122. A. AFFIRMATIVE CONTRACTS GENERALLY. a. Contracts about Land.* In the view of a court of equity a specific parcel of land has no duplicate. It is unique. An unob- jectionable, valid, wiitten, contract to convey an interest in land is therefore enforced as a matter of course in favor of vendor or vendee. This rule is not altered by the fact that similar land at a similar price, in the same neighborhood, is available. Pomeroy on Specific Performance, sees. 9-10. Ensign v. Kellogg, 4 Pick. 1. Squire v. Learned, 196 Mass. 134 (bill by lessee's administrator to enforce agreement to renew lease). 8 In the development of the subject herein, little attention is paid to the distinction herein suggested. Many of the examples given may as readily be referred to the one proposition as to the other. 4 See specific phases of the enforcements of land contracts under the headings (infra) of Agreements to Arbitrate and to Give Options, The Statute of Frauds Part Performance, Partial Performance, Marketable Title, and Mutuality. 118 EQUITY AND ITS REMEDIES Staples v. Mullen, 196 Mass. 132 (enforce- ment by agreed vendor). Galligan v. McDonald, 200 Mass. 299 (en- forcement by agreed vendor). But if the contract has been executed by the vendor so that nothing remains to be done except for the vendee to pay money, then the remedy at law is adequate, and the vendor may recover the purchase price, unless the Statute of Frauds is a good defence on the facts, in which case the vendor may recover the value of the property. Jones v. Newhall, 115 Mass. 244. 6 Kelley v. Thompson, 181 Mass. 122 (rule where contract was oral and within the statute). b. Contracts about Chattels. The ordinary chattel is not unique in the sense that a parcel of land is. If one may obtain its duplicate in the open market, a contract concerning the chattel will not be specifically enforced. Fothergill v. Rowland, L. R. 17 Eq. 132; Ames 111 (contract to sell all coal mined for five years). Jones v. Newhall, 115 Mass. 244 (dictum). But specific performance of a contract relating to personal property may be enforced, by vendor or vendee, if the property is unique. 6 Lowther v. Lord Lowther, 13 Vesey, 95 (a Titian). Adams v. Messinger, 147 Mass. 185; Ames 5 This case was decided before Massachusetts court had full equity jurisdiction. Under the facts there set forth, there would doubt- less be equitable relief today. See Staples v. Mullen, 196 Mass. 132. 6 See page 119 for note 6 SPECIFIC PERFORMANCE OF CONTRACTS 119 50 (contract (a) to sell patented article; (b) to assign patent). Cogent v. Gibson, 33 Beavan, 557; Ames 56 (specific performance obtained by vendor). Roberts v. Cambridge, 164 Mass. 176 (agreement to furnish water). Adderley v. Dixon, 1 Simons & Stuart 607; Ames 58 (to sell a claim of uncertain value) Herbst v. Fidelia, etc. Corp'n, 218 Mass. 181 (agreement to return a prize cup if not entitled to it). Howe v. Watson, 179 Mass. 30 (agreement to leave property by will). French v. Boston Nat'l Bank, 179 Mass. 404 (agreement to re-deliver pledged stock) So an agreement to compromise a will may ba enforced if all parties were sui juris and assented to the compromise. Parker v. N. E. Trust Co., 215 Mass. 226 (giving further requisites of Massachusetts statutory compromise). Blount v. Wheeler, 199 Mass. 330 (although property was personalty). 6 It is not uncommon to cite under this head cases which are really specific reparation of a tort, rather than performance of a con- tract. In the case of reparation of a tort the jurisdiction may arise from the conversion of a chattel so unique that nothing short of the return of the chattel itself will afford adequate relief. This remedy has been afforded in cases involving the conversion of deeds, papers of a society, heirlooms, securities of an estate, slaves, etc. Duke of Somerset v. Cookson, 2 P. Wms. 390; Ames, 39; and num- erous cases in note, Ames, 39. This remedy, sometimes called specific delivery or equitable replevin, has been made in Massachu- setts broad enough to allow the recovery of all articles (whether rare or not) "that have been taken or detained from the owner and so secreted or withheld that they cannot be replevied." Rev. Laws, ch. 159, sec. 3, cl. 1; Strickland v. Fitzgerald, 7 Cush. 530 (horse); Maxham v. Day, 16 Gray 213 (jewelry worn on the person); Gaff v. Cornwallis, 219 Mass. 226 (a specific legacy). 120 EQUITY AND ITS REMEDIES So an agreement of one partner to sell his interest in his business for a fixed sum to the other partner may be enforced. Murphy v. Murphy, 217 Mass. 233 (liquor saloon; bill against deceased partner's administrator). If the failure of a party who has agreed to sell an article of which there is only a limited supply (although the article itself be not unique) would result in irreparable damage, and perhaps utter destruction of the business of the agreed vendee, damages at law may not be adequate and specific performance may be had. Gloucester Isinglass, etc. Co. v. Russia Cement Co., 154 Mass. 92 (agreement to sell fish skins). Florence Sewing Machine Co. v. Grover, etc. Co., 110 Mass. 1. Equitable Gas Light Co. v. Baltimore Coal Tar Co., 63 Md. 285 (agreement to sell coal tar). But even though the subject matter be unique, money damages at law are adequate if the original agreement has set a value on the property. Dowling v. Betjemann, 2 Johnson & Hem- ming 544; Ames 40 (agreement as to painting, which set value at which pic- ture could be purchased). In some cases where there would ordinarily be no specific performance, it has been decreed when the plaintiff has paid full consideration but the insolvency of the other party has made a remedy at law inade- quate. Clark v. Flint, 22 Pick. 231 (against the Intended vendor's assignees). Parker v. Garrison, 61 111. 250; Ames 44. SPECIFIC PERFORMANCE OF CONTRACTS 121 Hamilton v. St. Louis Bank, 3 Dillon 230 (against assignee in bankruptcy to recover six bonds). Holmes v. Winchester, 133 Mass. 140 (dictum). The remedy at law may be equally inadequate, where the plaintiff has loaned money to the defendant upon his promise to give certain security. 7 "An agreement to give a mortgage is a mortgage in equity." Hermann v. Hodges, L. R. 16 Eq. 18; Ames 61. Westall v. Wood, 212 Mass. 540. c. Stocks and Bonds. A contract for the sale of stocks or bonds commonly dealt with in the market, in the absence of unusual circumstances, will not be enforced. The subject matter is not unique. Duncuft v. Albrecht, 12 Simons 189; Ames 55. But such a contract will be specifically enforced in the case of stock if the shares are such as are not readily procurable in the market. Adams v. Messinger, 147 Mass. 185; Ames 50. New England Trust Co. v. Abbott, 162 Mass. 148 (agreement, indorsed on share of stock, that in certain contingency stock should be transferred to corporation, enforced). d. Agreements to Arbitrate and to Give Options. An agreement to arbitrate an entire controversy, 7 But an agreement to lend or borrow money will not be enforced. Rogers v. Challis, 27 Beavan 175; Ames 61. 122 EQUITY AND ITS REMEDIES except an agreement made in conformity with some statute, 8 is not enforceable. There is no action at law for its breach and no enforcement of it in equity. The enforcement of such an agreement would tend to oust the courts of their jurisdiction of the subject matter. Wood v. Humphrey, 114 Mass. 185 (cancel- lation of royalty contract despite plain- tiff's failure to submit to arbitration). Vass v. Wales, 129 Mass. 38 (as to repairs in lease). Pearl v. Harris, 121 Mass. 390 (agreement in partnership papers). White v. Middlesex R. R., 135 Mass. 216 (corporation officer sole judge of forfeiture of deposit. Void). Miles v. Schmidt, 9 168 Mass. 339 (equity). But an agreement that certain minor questions shall be submitted to arbitration, though not enforce- able in equity, is not invalid. If made a condition precedent, no suit will lie until an offer to submit is first made. If not a condition precedent, it may be revoked before an award. 10 Lamson Consolidated etc. Co. v. Prudential F. Ins. Co., 171 Mass. 433 (arbitration clause in standard policy, a condition precedent). But see Reed v. Washington Ins. Co., 138 Mass. 572 (old form in policy. Not a condition precedent. Revocation by suit). 8 See Mass. Rev. Laws, ch. 194, for a statutory method. 9 The court in this case avers that if the question were then a new one (1896) no objection would be found to permitting parties to select their own tribunals. 10 In case of revocation of a valid agreement to submit to arbi- tration, the party aggrieved by the revocation may recover damages therefor. Pond t;. Harris, 113 Mass. 114. SPECIFIC PERFORMANCE OF CONTRACTS 123 But when an award under an agreement to arbi- trate has been made, equity may be invoked to en- force specific performance of it in a proper case. Hall v. Hardy, 3 P. Wins. 187; Ames 65. Penniman v. Rodman, 13 Met. 382 (award ordering conveyance). Bartlett v. Slater, 182 Mass. 208 (specific performance of statutory compromise of a will). Howe v. Nickerson, 14 Allen 400 (money award; remedy at law adequate). Duffy v. Hogan, 203 Mass. 397 (compromise of a will). A contract to buy or sell at a price to be fixed by arbitration will not be specifically enforced, unless the price has actually been fixed. Agar v. Macklew, 2 Simons & Stuart, 418; Ames 67. N. E. Trust Co. v. Abbott, 162 Mass. 148 (price fixed. Enforced) . Palmer v. Clark, 106 Mass. 373. Miles v. Schmidt, 168 Mass. 339. A contract to give the plaintiff an option on cer- tain property in case the defendant wishes to sell, is not enforceable. Fogg v. Price, 145 Mass. 513 (in which no price was named). Chandler v. McDonald-Weber Co., 215 Mass. 365. But see Manchester Ship Canal Co. v. Manchester Co., L. R. (1901) 2 Ch. 37 (an injunction against selling until offered to plaintiff). e. Contracts Involving the Performance of Labor. Contracts to do continuous acts or involving con- tinuous employment of people and oversight of the 124 EQUITY AND ITS REMEDIES court are not ordinarily enforced in equity. 11 Powell Duffryn Coal Co. v. Taff Vale Ry. Co., L. R. 9Ch. App. 331; Ames 79 (re- fusal to order a railway to keep its con- tract to operate signals for the plaintiff). Adams v. Messinger, 147 Mass. 185; Ames 50 (principle discussed, but performance ordered). Berliner Co. v. Seaman, 110 Fed. Rep. 30 (contract for agency of machine for sev- eral years. No performance). Ryan v. Mutual Ass'n, (1893) 1 Ch. 116 (contract by landlord to furnish porter service). Medford & C. R. Co. v. Somerville, 111 Mass. 232 (to build railroad track). See cases cited, Ames 81, note. But in many cases, the court has, in its discretion, enforced such contracts where particular hardship would otherwise result. Hood v. North Eastern Ry. Co., L. R. 8 Eq. 666; Ames 82 (contract of railroad with land owner that it will maintain station). Prospect Park etc. Co. v. Coney Island etc. Co., 144 N. Y. 152; Ames 83 (contract to run connecting cars). Adams v. Messinger, supra (manufacture of patented article, not otherwise obtain- able. No skill required). Newcomb v. Norfolk St. Ry. Co., 179 Mass. u "The court to the end of time may be called upon to determine not only whether the prescribed quantity . . . has been delivered, but also . . . whether it was of suitable size or shape or propor- tion." Marble Co. v. Ripley, 10 Wallace 340. SPECIFIC PERFORMANCE OF CONTRACTS 125 449 (enforcement under statute of pro- vision in franchise requiring street water- ing). See cases cited Ames 86, note. See also Turner v. Revere Water Co., 171 Mass. 329 (mandatory injunction order- ing water company to furnish plaintiff with water). So in the ordinary case of a contract for building repairs, enforcement will not be decreed. Flint v. Brandon, 12 7 Vesey 159; Ames 69 (repairs by lessor). Kansas etc. Co. v. Topeka etc. Co., 135 Mass. 34 (general reason not discussed; particular reason governed). But equity courts may enforce contracts requiring some building to be done, and will do so if the cir- cumstances require. Jones v. Parker, 163 Mass. 564; Ames 73. (specific performance of agreement in lease, to instal heating and lighting system. Lessor had control ol basement). Lane v. Newdigate, 10 Vesey 192; Ames 74 (to restore stop-gate. In form, an in- junction against depriving plaintiff of flow of water. The effect was to require complete repairs of stop-gate). Mayor v. Emmons L. R. (1901) 1 K. B. D. 515; Ames 76 (agreement to build on land, in consideration of conveyance). A contract for personal service will not be enforced in favor of employer or employee. Enforced labor is contrary to the spirit of the law. 12 For an earlier case, contra, see Holt v. Holt, 2 Vernon 322; Ames 68. 126 EQUITY AND ITS REMEDIES Robertson v. Baldwin, 165 U. S. 275. Wakeham v. Barker, 82 Cal. 46; Ames 87. See other cases cited Ames 87, note. B. NEGATIVE CONTRACTS GENERALLY. Certain contracts, negative in form, are enforced by enjoining a party from doing the act he has agreed not to do, even though the allied affirmative covenant is not enforceable in equity. Butterick Pub. Co. v. Fisher, 203 Mass. 122 (agreement to sell no other patterns than plaintiff's). " United Shoe Mach. Co. v. Kimball, 193 Mass. 351. Anchor Electric Co. v. Hawkes, 171 Mass. 101. Palmer v. Lavers, 218 Mass. 286 (agreement not to appeal a case brought in a lower court). a. Involving Personal Services. Certain contracts for personal services, the affirma- tive provisions of which will not be enforced, 14 may be specifically enforced (in some jurisdictions) 18 in respect to their negative provisions. Lumley v. Wagner, 1 DeGex, Macnaghten M But see Mass. Rev. Laws, ch. 56, sec. 1, referred to therein. 14 See supra, Contracts Involving The Performance of Labor. 15 The rule probably prevails in Massachusetts. In Rice v. D'Arville, 162 Mass. 559, the court expressly avoids deciding whether such negative contracts will ever be enforced, but in the case refused to enforce a negative contract of a singer not to sing elsewhere, because it did not appear that plaintiff (a theatrical manager) was able to carry out his financial part of the agreement. The case of Lumley v. Wagner has been cited with approval, however, in Peabody v. Norfolk, 98 Mass. 452, in Citizens' Loan Ass'n v. B. & M. R. R., 196 Mass. 528, and in Butterick Pub. Co. v. Fisher, 208 Mass. 122. See Mass. St. 1914, ch. 778, with reference to its possible effect on such a case. SPECIFIC PERFORMANCE OF CONTRACTS 127 and Gordon 604; Ames 93 (singer agreed to sing for one theatre and not to sing for any other. Latter provision enforced). Morris v. Colman, 18 Vesey437; Ames 89 (playwrights, partners, with agreement not to write except for their joint enter- prise). Harrison v. Glucose Sugar Ref. Co., 116 Fed. Rep. 304 (highly paid manager. Damage from use of trade secrets an element). If, however, the services of the defendant have no peculiar value but can readily be replaced, relief is ordinarily denied. Carter v. Ferguson, 58 Hun. 569; Ames 121 (ordinary actor. Relief denied). Phila. Ball Club v. Lajoie, 202 Penn. 210 (star ballplayer. Relief under rule). A contract to work for a party does not, in the absence of express language, imply a contract to work for no other. Whit wood Chemical Co. v. Hardman, L. R. (1891) 2 Ch. 416; Ames 117. Contra: Montague v. Flockton, L. R. 16 Eq. 189; Ames 105. An employee owes a duty 16 not to reveal the trade secrets of his employer. He may be enjoined from so doing. 18 This duty may arise under an express contract or be implied from his fiduciary employment. Professor Ames says that even a stranger discovering another's trade secrets by wrongful means or by mistake may be enjoined from disclosure. See also F. W. Dodge Co. v. Construction Information Co., 183 Mass. 62 (restraining defendant from publishing news, the property of the plaintiff, a rival). But an innocent purchaser of trade secrets may use them. Chadwick v. Covell, 151 Mass. 190. 128 EQUITY AND ITS REMEDIES Solomon v. Hertz, 40 N. J. Eq. 400; Ames 128 (tanning secrets). Peabody v. Nonolk, 98 Mass. 452 (express agreement as to machinery secrets). Simmons Medicine Co. v. Simmons, 81 Fed. Rep. 163 (formula). b. Limiting Use of Property. Contracts wholly in restraint of trade are void. But one by which a manufacturer agrees not to sell to his customers' competitors has been held valid and has been enforced in equity. N. Y. Bank Note Co. v. Kidder Press Mfg. Co., 192 Mass. 391. 17 Dietrichsen v. Cabburn, 2 Phillips 52; Ames 108 (patent medicine). But see Mass. St. 1908, ch. 454 ("an act relative to monopolies and discriminations in the sale of articles or commodities in common use")* And a contract made by a retailer with a manu- facturer that in consideration of a reduced rate he will not sell any other competing make of a certain kind of goods may be enforced. 18 Butterick Pub. Co. v. Fisher, 203 Mass. 122. 17 In this case the defendant did not plead 26 U. S. Stat. at Large 209 (Now U. S. Comp, Stat. 1901, p. 3200) commonly called the anti-trust act. This act must be pleaded specially if the defend- ant seeks the advantage of it. See also Mass. St. 1908, ch. 454, which apparently does not change the common law, except to give the Attorney General or District Attorney the right to ask for an injunction against certain illegal monopolies. 18 But see Mass. Rev. Laws, ch. 56, sec. 1, making it a criminal offense to impose a condition in the sale of goods that the purchaser shall not sell or deal in the goods of any other person. See also Mass. St. 1908, ch. 454, prohibiting certain monopolies. But such a negative agreement will not be implied. Fothergill v. Rowland, L. R. 17 Eq. 132; Ames 111. SPECIFIC PERFORMANCE OF CONTRACTS 129 Metropolitan Elec. Co. v. Gooder, L. R. (1901) 2 Ch. 799. John Bros. etc. Co. v. Holmes, L. R. (1900) 1 Ch. 188; Ames 149. But a restriction which has the effect to drive all competitors from the field is a monopoly and will not be protected. Merchants' Legal Stamp Co. v. Murphy, 220 Mass. 281 (trading stamps). A court of equity will refuse specific performance of a contract which is in direct aid of an illegal con- bination amounting to monopoly of trade or com- merce among the states, under the federal laws. United Shoe Mach'y Co. v. La Chapelle, 212 Mass. 467 (excellent discussion). The holder of a patent has an absolute monopoly of the invention, not affected by the Federal Anti- Trust Acts, and may annex such conditions as he chooses to the use of his invention. He has no immunity however from general lawsuits affecting his patent rights. Henry v. A. B. Dick Co., 224 U. S. 1. United Shoe Mach'y Co. v. La Chapelle, supra. c. Agreements not to Compete. 1. Express Agreements. An agreement not to compete made in connection with the sale of a business, will be enforced in equity, where reasonably necessary 19 for the preservation and 19 For cases where such covenants have been bad, see Bishop o. Palmer, 146 Mass. 469 (covenant unrestricted as to space made in connection with local business), and Gamewell Fire Alarm Tele- graph Co. v. Crane, 160 Mass. 50. For a review of the English authorities on contracts in restraint of trade, see Nordenfeltw. Maxim, Nordenfelt Guns & Ammunition Co., (1894) App. Cases 535. 130 EQUITY AND ITS REMEDIES protection of the property sold. Palmer v. Stebbins, 3 Pick. 188. Pierce v. Woodward, 6 Pick. 206. Dean v. Emerson, 102 Mass. 480 (mercantile business). Ropes v. Upton, 125 Mass. 258 (agreement not to compete in same town). Handforth v. Jackson, 150 Mass. 149. Anchor Electric Co. v. Hawkes, 171 Mass. 101 (history of enforcement of contracts in restraint of trade). Diamond Match Co. v. Roeber, 106 N. Y. 473; Ames 123. United Shoe Mach. Co. v. Kimball, 193 Mass. 351 (dictum that covenant may be un- limited in time and space). 2. Agreements Implied from Sale of Good Will. In Massachusetts, 20 a vendor (whether a sole trader or a partner) who has voluntarily sold the good will of a business may be enjoined from setting up a competing business that derogates from the grant made by the sale. Whether or not a business does this, is a question of fact. 21 The bill may be brought by the vendee or one who succeeds to his title. The English rule is that after a voluntary sale of a general mer- chandise business with the good will, the vendor may establish a new business in competition but may not solicit his former customers or direct his efforts against those activities which belong to the busi- ness for which he had been paid. Trego v. Hunt (1896) App. C. 7 (overruling Pearson v. Pearson, 27 Ch. D. 145). Labouchere v. Dawson, L. R. 13 Eq. 322. In the following American cases a former partner, having sold his good will, was allowed to solicit old customers by public adver- tisement or by direct and personal solicitation. Cottrell v. Bab- cock Co., 54 Conn. 122. Williams v. Farrand, 88 Mich. 473. Von- derbank t>. Schmidt, 44 La. Ann. 264. 21 See page 131 for note 21. SPECIFIC PERFORMANCE OF CONTRACTS 131 Angler v. Webber, 14 Allen 211 (express route). Dwight v. Hamilton, 113 Mass. 175 (phy- sician). Munsey v. Butterfield, 133 Mass. 492 (milk route). Old Corner Book Store v. Upham, 194 Mass. 101 (book store; suit by assignee of ven- dee). Foss v. Roby," 195 Mass. 292 (dentists). Marshall Engine Co. v. New Marshall K The history of this line of cases in Massachusetts is interesting. Bassett v. Percival, 5 Allen 345, decided in 1862, plainly stated there was no implied agreement not to compete (in that case by opening a grocery store across the street) raised from the sale of a business and good will. In Angier v. Webber, 14 Allen 211, there was an express stipulation not to injure the good will of an express business which the defendant sold and a violation of this was enjoined. In Dwight v. Hamilton, 113 Mass. 175, the sale of a "physician's prac- tise and good will" was said to raise an implied covenant not to disturb or injure the vendee in the enjoyment of that which he purchased. This rule, apparently contra to the rule in Bassett v. Percival, has been followed in all the later cases except Hoxie v. Chaney, 143 Mass. 592, where an attempt was made to re-state the rule somewhat as in Bassett v. Percival, and to distinguish that case from Angier v. Webber, Dwight v. Hamilton, etc., on the ground that in the former case the business was local and hi the latter cases extended over "considerable region or line of travel." In Old Corner Book Store v. Upham, 194 Mass. 101, and in Marshall En- gine Co. P. New Marshall Engine Co., 203 Mass. 410, further at- tempts are made to distinguish the two lines of cases, by saying that in Bassett v. Percival it was found as a fact that the new business did not derogate from the grant made by the sale, while in Angier v. Webber, and other cases it was found that it did. But this ia hardly true, for Bassett v. Percival is plainly decided on the ground that no contract is implied from the sale of good will. It is perfectly plain that Bassett v. Percival is not law today and that the implied agreements set forth in the text above express the law today. See statement in 10 L. R. A. (N. S.) 120 note, to the effect that Dwight t>. Hamilton, supra, and Foss v. Roby, supra, seem to be the only cases found anywhere which hold that the sale of the good will of a professional practise implies a covenant not to compete. B See this case for an award of damages, in addition to the injunc- tion. 132 EQUITY AND ITS REMEDIES Engine Co., 203 Mass. 410 (manufacturing engines). Hoxie v. Chancy, 143 Mass. 592 (wherein sale of "all right, title and interest" in partnership property included the good will contributed in partnership articles). A covenant not to compete, express or implied, may be enforced even though the vendor does not compete individually but as agent for, or partner with, another. Dean v. Emerson, 102 Mass. 480 (partner). Old Corner Book Store v. Upham, 194 Mass. 101 (retiring partner organized new cor- poration to compete). Boutelle v. Smith, 116 Mass. Ill (retiring partner drove bread cart as agent for another). The covenant not to compete implied from the sale of the good will of a business may be unlimited in time. The area covered is a question of fact. Foss v. Roby, 195 Mass. 292. D wight v. Hamilton, 113 Mass. 175. Marshall Engine Co. v. New Marshall En- gine Co., 203 Mass. 410 (unlimited area). Where there is a sale of the good will of a partner- ship by reason of the death or bankruptcy of a part- ner, such sale, 23 while carrying with it everything of B This is the rule in Massachusetts and many other jurisdictions. In England a sale of the good will by the surviving member of a firm is conducted on the same basis as a voluntary sale by a sole trader, that is, the seller may compete with the purchaser but may not solicit former customers. In the case of a sale in bankruptcy, however, the bankrupt may compete and solicit, as in Massachusetts. In re David, (1889) 1 Ch. 378. Trego v. Hunt, (1896) A. pp. C. 7. SPECIFIC PERFORMANCE OF CONTRACTS 133 advantage belonging to the existing business, 44 leaves the former member of the firm, or the bank- rupt, free to start a competing business and even to solicit former customers. Moore v. Rawson, 199 Mass. 493 (good discussion of value of such good will). Hutchinson v. Nay, 26 187 Mass. 262. When one sells a business with no mention of good will, although he may engage in the same kind of business under the old name, he may under some circumstances be enjoined from conducting the business so as to injure that which he has sold. Fairfield v. Lowry, 207 Mass. 352 (may not solicit former customers). A sale of goods and chattels as shown on the books does not imply a sale of the good will. Webster v. Webster, 180 Mass. 310. C. RELIEF FOB AND AGAINST THIRD PERSONS. In order to understand the equitable doctrine of restrictions, it is necessary to keep in mind certain distinctions between the following: a. Legal Easements,* 6 which are incorporeal rights" M The right to advertise as successors to the old firm is such an advantage; though the business may not be conducted under the old firm name. Moore v. Rawson, 199 Mass. 493. See also Mass. R. L. ch. 72, sec. 5. Lothrop Pub. Co. v. Lothrop, etc., Co., 191 Mass. 353. K See discussion of this case in Hutchins v. Page, 204 Mass. 284, where there was an accounting between parties after termination of the partnership. 26 Legal easements are referred to here, only to make clear the distinctions between them and equitable easements, so-called. For injunctions against interference with legal easements, see Chapter IX herein. v These rights are usually appurtenant to other property, called the dominant estate. They may, however, be in gross, that is, appurtenant to no particular premises, but belonging to the person possessing the easement, and if so created are inheritable and assign- able interests. Goodrich v. Burbank, 12 Allen 459 (right to take water from a well). 134 EQUITY AND ITS REMEDIES in real property of another (as, for example, rights of way) arising from grant, devise, reservation, pre- scription, implication, estoppel, or necessity. When once created they run, by way of benefit, with the dominant estate and pass to the assignee of the owner of the estate even though not mentioned in the deed to him. They bind by way of burden the assignee of the owner of the servient estate. Brown v. Thissel, 6 Gush. 254 (way created by reservation). King v. Wight, 155 Mass. 444 (reciprocal easements created by party wall indenture) Gorton Pew Fish. Co. v. Tolman, 210 Mass. 402 (implied easements discussed). Tufts v. Charlestown, 2 Gray 271 (easement by estoppel). An easement is commonly created by a deed poll" and concerns real estate only. It is a jus in rem as distinguished from a mere covenant or personal under- taking. It may, however, be created by words sound- ing in covenant, if the seeming covenant is for a present enjoyment of a nature recognized by law as capable of being treated as a jus in rem and not merely the subject of personal undertaking, and if the deed discloses that the covenant is for the benefit of adjoining land conveyed at the same time. Hogan v. Barry, 143 Mass. 538 (covenant of grantor in deed that no building will be erected on lot adjoining that conveyed, nearer than four feet to line). Norcross v. James, 140 Mass. 188; Ames 182 (discussion of certain "new and unusual incidents" which cannot be the subject of easement). 28 The usual form of deed in Massachusetts, signed by the grantor only. SPECIFIC PERFORMANCE OF CONTRACTS 135 b. Certain Covenants Running with Land 29 and Enforceable at Law. These include 1. Certain covenants in deeds, as that of warranty in a deed poll, which binds the grantor and his heirs and runs by way of benefit with the land to the gran- tee's heirs and assigns. Slater v. Rawson, 6 Met. 439. Peters v. Stone, 193 Mass. 179 (by lessee in indenture to make improvements and leave them at the end of the term). 2. Certain covenants 30 "touching and concerning land" (and not merely personal undertakings) 31 and creating interests in the nature of easements and enforceable between parties having privity of estate." Morse v. Aldrich, 19 Pick. 449 (agreement between mill owners as to use of mills). w See note on page 137 as to certain covenants that "run with the business" in equity and perhaps to some extent at law. 80 The obligation of a grantee arising from the acceptance of a deed poll is, of course, not a covenant of the grantee, but an under- taking which, at law, does not run with the land and is not an ease- ment, although in equity in certain cases it may amount to an ease- ment or restriction and run with the land. Martin v. Drinan, 128 Mass. 515 (stipulation that grantee shall repair building on grantor's adjoining land). Kennedy v. Owen, 136 Mass. 199 (stipulation that grantee shall fence between properties). Lincoln . Bur rage, 177 Mass. 378 (party wall agreement in deed poll). Childs v. B. & M. R. R., 213 Mass. 91 (stipulation in deed poll that grantee shall create a way in futuro over granted land). And see Equitable Easements, infra. 41 Where one party covenants with another in respect to land, and at the same time with and as a part of making the covenant, neither parts with nor receives any title or interest in the land, nor creates an easement or a right in the nature of an easement for the benefit of the land, such a covenant is at best a mere personal contract which does not run with the land. See King v. Wight, 155 Mass. 444 (dictum). 82 Privity of estate is necessary in order that these covenants shall run with the land. As to what constitutes privity of estate, see Norcross v. James, 140 Mass. 188. 136 EQUITY AND ITS REMEDIES Savage v. Mason, 3 Gush. 500 (party wall agreement). Bronson v. Coffin, 108 Mass. 175 (agree- ment of grantor to fence adjoining land). c. Restrictions, or Equitable Easements. An equitable easement is a stipulation as to the use of property, real or personal, which may be spe- cifically enforced 33 (by injunction) in equity by one who has no legal title or interest in the property re- stricted and no covenant which he may enforce at law. It is also enforceable in equity against one who is a purchaser (with notice actual or constructive) 34 from one originally bound by it. It is commonly created by the acceptance of a deed poll containing restrictive clauses. 35 It may also be created by a statute under which the state sells land. Whitney v. Union Railway Co., 11 Gray 359 (general discussion. Land restricted as to its use for trade). Schwoerer v. Boylston Market, 99 Mass. 285 (lot not to be built on). Tulk v. Moxhay, 2 Phillips, 774; Ames 147 (real estate). Mass. Inst. of Technology v. Boston Soc. w This enforcement is on the theory that one who buys property with notice that his predecessor in title has agreed to the restriction of its use, must in equity conform to that agreement. Bailey v. Agawam Nat'l Bank, 190 Mass. 20; Childs t>. B. & M. R. R., 213 Mass. 91. 84 Thus a mandatory injunction may issue against one who has inherited land and is actually ignorant of restrictions, if he has constructive notice. Allen v. Barrett, 213 Mass. 36. 85 As the restrictions, common in deeds, against building within a certain distance of the street or against using a building for offen- sive trades or for more than a certain number of families. See num- erous restrictions in Renals v. Cowlishaw, 9 Ch. D. 125; Ames 159. Clauses consisting of words apt to create a condition at common law are frequently interpreted as restrictions. Cassidy v. Mason, 171 Mass. 507. SPECIFIC PERFORMANCE OF CONTRACTS 137 Nat. History, 218 Mass. 189 (created by statute). John Bros. Abergarw Brewery Co. v. Holmes, 36 L. R. (1900) 1 Ch. 188; Ames 149 (agree- ment of innkeeper that he and assigns should sell only John Bros, beer, enforced by successors to John Bros, against lessee of innkeeper, with notice). Murphy v. Christian, etc., Publishing Co., 38 N. Y. App. Div. 426; Ames 157 (agree- ment between publisher owning copyright and a licensee as to minimum price for books, enforced by licensee against pur- chaser of publisher's business). Francisco v. Smith, 143 N. Y. 488; Ames 186 (agreement not to compete for five years enforceable by purchaser from vendee. It is an asset of business). Restrictions created by the acceptance of deeds poll, are the commonest in form. If intended to benefit other land, 37 the right to enforcement in equity is in the owner 38 or owners of the other land and his or their successors in title. 39 86 This, and the next two cases cited, have to do with the enforce- ment of covenants restricting the use of personal property. Between the original parties to the agreements, at least, there probably could have been recovery of damages at law, but the importance of these cases is that agreements apparently of a personal nature are here enforced in equity not between the parties thereto, but against third persons who have acquired the restricted personal property with knowledge of the restrictions. Quaere as to what extent in appropriate cases these covenants "run with the business" so as to give rights to enforce at law. 87 For cases where there were restrictive clauses but an absence of a general scheme from which the intent to benefit particular lots could be inferred, see Webber t;. Landrigan, 215 Mass. 221; Dana v. Wentworth, 111 Mass. 291. 88 A mortgagee has sufficient interest. Stewart v. Finkelstone, 206 Mass. 28 (where he joined with owners). 89 See also Mass. Rev. Laws, ch. 96, sec. 7, where a grantee from the Commonwealth may bring proceedings in equity to compel the Harbor and Land Commissioners to enforce certain rights in deeds. 138 EQUITY AND ITS REMEDIES The other land intended to be benefited may be, 1. Expressly named in the deed. Rogers t;. Hosegood,L. R. (1900) 2 Ch. 388; Ames 165. 2. Or inferred from the existence of a general building scheme. Hano v. Bigelow, 155 Mass. 341. Sprague v. Kimball, 213 Mass. 380. Bacon v. Sandberg, 179 Mass. 396. 3. Or determined from the fact that the grantor could have had no other idea. Peck v. Con way, 119 Mass. 546; Ames 162 (residence adjoining). 4. Or dependent on the language of a statute, and the attendant circumstances. Mass. Inst. of Technology v. Boston Soc., Nat. Hist. 218 Mass. 189. This intent is a question of the construction of the instrument in the light of attendant circumstances. In the absence of an intent to benefit other land, an apparent restriction may operate merely as a personal agreement not enforceable by the assigns of the person benefited. Nottingham Patent Brick & Tile Co. v. Butler, L. R. 16 Q. B. D. 778; Ames 169 (rule stated). Renals v. Cowlishaw, 9 Ch. D. 125; Ames 159 (intent to benefit the then occupant, not the land). Badger v. Boardman, 16 Gray 559 (rule stated). Lowell Inst. for Sav. v. Lowell, 153 Mass. 530, and cases therein cited. The person who originally creates restrictions SPECIFIC PERFORMANCE OF CONTRACTS 139 may enforce them for his grantees, although he is no longer interested. Riverbank Improvement Co. v. Bancroft, 209 Mass. 217. In the case of building restrictions affecting a whole neighborhood, each lot is commonly burdened 40 for the benefit of, and benefited by the burden upon, each other lot, whether previously or subsequently conveyed. Hopkins v. Smith, 162 Mass. 444. Barrow v. Richard, 8 Paige 351; Ames 173. But a provision intended to be a restriction for the benefit of an entire stranger will not be enforced. Hazen v. Matthews, 184 Mass. 388. Haverhill Sav. Bank v. Grifiin, 184 Mass. 419. Restrictions in favor of land, in order to be enforce- able in equity by or against persons other than those originally creating them, must be such as "make for greater pleasure and comfort in the occupation of the neighboring land." Norcross v. James, 140 Mass. 188; Ames 182 (agreement of grantor not to use other land in competition as a quarry not en- forced between assigns. Does not run with land at law or in equity). 41 40 The burden will not be implied, however, from the existence of restrictions on adjoining lots. As a matter of practise, a clause by which the grantor agrees similarly to restrict the remaining lots in the tract should be inserted in the deed of one who purchases a restricted lot. McCusker v. Goode, 185 Mass. 607; Sprague 0. Kimball, 213 Mass. 380. Compare with this, Hodge v. Sloan, 107 N. Y. 244; Ames 184, in which case the enforcement by the grantor himself was allowed, against an assignee of the grantee, of a restriction against the sale of sand from the granted land in competition with the grantor. Probably the original party to the contract could have enforced the Continued on page 140. 140 EQUITY AND ITS REMEDIES It has been held no objection (in Massachusetts, at least) that restrictions require active duties (such as repairing, or even paying money) although, in general, affirmative contracts bind only the coven- antor, his heirs, executors and administrators and do not run with the land. Whittenton Mfg. Co. v. Staples, 164 Mass. 319 (payment of money). Middlefield v. Church Mills Knitting Co.," 160 Mass. 267 (an anomalous case). Contra: Hayward t>. Brunswick, etc. Soci- ety, 8 Q. B. D. 403; Ames 176 (only covenants restricting use of land are enforceable). When a restriction is once created for the benefit of land, the right to enforce it passes to subsequent owners of the benefited land even though they are ignorant of it or have not contracted for it. Peck v. Con way, 119 Mass. 546; Ames 162. Restrictions not expressly limited in duration are construed, in the absence of statute, as permanent. Jackson v. Stevenson, 156 Mass. 496; Ames 179. Mass. Inst. of Technology v. Boston Soc. Nat. Hist., 218 Mass. 189 (dictum, that restrictions by individual that square should be "reserved from sale forever" would be invalid). See Mass. Rev. Laws, ch. 134, sec. 20 Continued from page 139 agreement in Norcross v. James. Professor Ames says it is not (in Norcross v. James) a question of "running with the land" but of public policy how far equity will go in holding assigns to a con- tract. See collection of cases in 17 Harvard Law Review (Jan. 1904) 175-6. 42 See comment on this case in Lincoln v. Burrage, 177 Mass, at page 380. SPECIFIC PERFORMANCE OF CONTRACTS 141 (limiting those not otherwise limited, to thirty years). See Davidson v. Sohier 220 Mass. 270 (restriction applying to first house to be built on lot). But equitable relief by injunction may be refused if the enforcement could have no other effect than to harass and injure the defendant, without effecting the purpose for which restrictions were originally made, or where the plaintiff has been guilty of laches," acquiescence, or the violation of the same restrictions, or where the plaintiff's interest is too remote. Jackson v. Stevenson, 156 Mass. 496; Ames 179 (character of neighborhood wholly changed. Actual damages 44 given, but no injunction). Stewart v. Finkelstone, 206 Mass. 28 (dis- cussion of laches). Codman v. Bradley, 201 Mass. 361 (no laches where work not discovered by plaintiff because done behind high fence; nor is change in use of buildings in neighborhood conclusive). 45 Loud f. Pendergast, 206 Mass. 122 (laches and violation of similar restrictions). Bacon v. Sandberg, 179 Mass. 396 (violation of same restriction by plaintiff). Johnston v. Hall, 2 K. & J. 414; Ames 187 (plaintiff's interest that of reversion after 999 year lease). 48 But it is not laches for one to fail to bring a bill if another has brought one seasonably and then settled by selling his land after rescript from the court. Daly v. Foss, 199 Mass. 104. 44 Money damages were here given, although the cause of action was purely equitable and not such as could be maintained at law. See also accrued damages in Childs v. B. & M. R. R., 213 Mass. 91. 45 The maintenance of a building line may be as important for business as for dwelling neighborhood. 142 EQUITY AND ITS REMEDIES In Massachusetts, by statute, land may be freed by the Land Court from restriction, to the extent required by the equities of the case or the public interest. Persons entitled to the benefit of such restrictions may have damages assessed. Mass. St. 1915, ch. 112. The mere probability that the character of a neigh- borhood will change in the near future is no ground for refusing to enforce a restriction. Evans v. Foss, 194 Mass. 513 (garage in residential neighborhood). A purchaser of a part of a restricted lot of land has no remedy in equity against the owner of the other part of the same lot. 46 Jewell v. Lee, 14 Allen 145. King v. Dickeson, L. R. 40 Ch. Div. 596; Ames 178. Restrictions, being interests in land, must, under statutes, be declared in writing, and agreements concerning them are within the Statute of Frauds. 47 Sprague v. Kimball, 213 Mass. 380 (an oral agreement not to restrict land not en- forced). Restrictions are not extinguished by non-user for twenty years unless it is accompanied by a use of the 46 Of course, the only duty of the lot owner, before division, or his successors after division, is toward the grantor or such persons as possess his estate in the land for the benefit of which the restric- tion was created. These cases should be distinguished from Sanborn v. Rice, 129 Mass. 387, in which an owner of a lot got relief against the owner of another, although their grantor obtained both lots in a single deed imposing restrictions. 47 There may be an exception in the case of a restriction created by estoppel or implied grant. See Tallmadge v. East River Bank, 26 N. Y. 105 (where line of restriction was shown on a plan). See also Sprague v. Kimball, 213 Mass. 380. SPECIFIC PERFORMANCE OF CONTRACTS 143 restricted land inconsistent with the existence of the restriction. Smith v. Price, 214 Mass. 298. Equitable relief will be refused where substantially all the landowners affected have so conducted them- selves as to indicate an abandonment of the right to enforce the restrictions. Loud v. Pendergast, 206 Mass. 122. But a mere failure to enforce the same restrictions against other violators, does not bar the plaintiff. Codman v. Bradley, 201 Mass. 361 (Tremont St., Boston). Nor does a mere technical violation by the plaintiff bar his enforcement. Stewart v. Finkelstone, 206 Mass. 28 (plain- tiff's building, built fifty years before, had an ell contrary to restrictions). But entrenchment behind considerable expenditure of money cannot shield premeditated efforts to evade or circumvent the obligation of restrictions. Stewart v. Finkelstone, 206 Mass. 28. D. STATUTE OF FRAUDS PART PERFORMANCE. The Statute of Frauds 48 requires that all contracts concerning land, in order to be enforceable, shall be in writing. 49 48 There are other statutes which should be distinguished from the Statute of Frauds, such as those requiring that the creation or transfer of all interests in land shall be in writing (see Mass. Rev. Laws, ch. 127, sec. 3). These statutes usually except such interests as are created by operation of law, such as constructive and result- ing trusts. 49 For a discussion of the requirements of the statute as to the nature of the written memorandum, as to the time of performance where contract is silent on this point, and as to the non-necessity for the plaintiff's signing the memorandum, see Nickerson v. Bridges, 216 Mass. 416. An oral promise to sign a written agreement is within the statute. Sarkisian v. Teele, 201 Mass. 596. 144 EQUITY AND ITS REMEDIES See Mass. Rev. Laws, ch. 74, sec. 1. But such contracts, though oral, if partly performed by the party seeking the remedy, may in equity be specifically enforced notwithstanding the statute. 60 The ground of enforcement is the equitable fraud" that would result from allowing the statute to be a bar, or the equitable estoppel of the defendant to set up the statute. Hubbell t;. Warren, 8 Allen 173. The acts of part performance must 1. Have been by the party seeking the remedy. Barnes v. B. & M. R.R., 130 Mass. 388. 2. Have been in pursuance of a contract and such as to alter the relations of the parties. Graves v. Goldthwaite, 153 Mass. 268 (per- formance of a collateral contract not sufficient). Burns v. Daggett, 141 Mass. 368; Ames 284. 3. Unequivocally, without parol assistance, point to the existence of the particular contract. So the conveyance of one parcel is not evidence of an agreement to convey any interest in an adjoining tract. Glass v. Hulbert, 102 Mass. 24 (fee in another tract)." 50 This doctrine is wholly repudiated in several of the southern states. It has no application, in Massachusetts, to agreements to sell personalty. But an entire agreement including realty and personalty is within the Statute of Frauds and delivery of the per- sonalty does not constitute part performance. Sarkisian v. Teele, 201 Mass. 596. 51 The mere non-performance of an oral contract where no relation of trust and confidence exists, is not such fraud. Sprague v. Kimball, 213 Mass. 380 (and cases cited). Montacute t;. Maxwell, 1 P. Wms. 618; Ames 274. 52 See page 145 for note 52. SPECIFIC PERFORMANCE OF CONTRACTS 145 Sprague v. Kimball, 213 Mass. 380 (an equitable interest in another tract). The mere payment of money 53 is not such evidence. Glass v. Hulbert, supra. Pengall v. Ross, 2 Eq. Abr. 46; Ames 276. Nor is the delivery of other alleged consideration unequivocal evidence. Barnes t>. B. & M. R.R., 130 Mass. 388 (failure to sue for damages for taking of location). Smith v. Hatch, 46 N. H. 146; Ames 277 (conveyance of one lot no evidence of contract to exchange). Bigelow v. Ames, 108 U. S. 10 (enforcement of ora i contract to exchange where con- veyance of one parcel and possession of other). Maddison v. Alderson 84 L. R. 8 App. Cases 467 ; Ames 295 (performance of services no evidences of contract to convey land). 4. Include a change of possession 65 from agreed M This case should be clearly distinguished from Williams v. Carty, 205 Mass. 396, where an oral agreement to convey the "Eph- raim Hatch" farm was held to contemplate the including of a parcel not in the deed. 58 There is an adequate remedy at law where money has been paid but no deed received; but if improvements have been made in the property there is no adequate remedy but is technical liability for trespass. 54 See various other cases in accord and contra, in note, Ames 303. 55 In Glass v. Hulbert, the entry for the purp.ose of possession was thought to be no more extensive in its operation than the descrip- tion contained in the deed, because the description in the deed cor- responded with the agreement, the alleged fraud touching the agree- ment and not the deed. In Williams v. Carty, the fraud related only to the deed. The agreement is alleged to have been for the sale of a unit of real estate, namely, the Hatch farm, of which the omitted lot was but a fraction. The allegation in the bill that the plaintiff took possession of the entire farm was held to mean the entire tract orally agreed upon. 146 EQUITY AND ITS REMEDIES vendor to vendee or agreed lessor to lessee, with the knowledge or consent of the agreed vendor or lessor. Barnes v. B. & M. R.R., 130 Mass. 388. Traveler Shoe Co. v. Koch, 216 Mass. 412 (agreement to lease). The continued possession of a tenant is not such a change, because equally consistent with tenancy at will, but the payment of increased rent or the making of extensive repairs by a tenant at the expiration of his lease may be evidence of a new lease. Wills v. Stradling, 3 Vesey 398; Ames 291. Mundy v. Jolliffe, 5 Mylne & Craig 167; Ames 289. This change of possession should be while the agreed vendor owns the property, not before. Kaufman v. Cook, 114 111. 11; Ames 309n. In some jurisdictions (including Massachusetts and the Federal Courts), in addition to the foregoing change of possession there must ordinarily be such expenditures for improvements known (or presumed to be known) to the agreed vendor, or such other change of situation, that adequate compensation can only be made by conveyance. Potter v. Jacobs, 111 Mass. 32 (house built before deed passed). Burns v. Daggett, 141 Mass. 368; Ames 284 (the above rule laid down). i Perkins v. Perkins, 181 Mass. 401. Williams v. Carty, 205 Mass. 396 (change of situation, without improvements). In some other jurisdictions the change of possession, if made with the acquiescence of the agreed vendor or SPECIFIC PERFORMANCE OF CONTRACTS 147 lessor need not be accompanied by improvements. 8 ' Butcher v. Stapely, 1 Vernon 363; Ames 279. Ungley v. Ungley, L. R. 5 Ch. D. 887; Ames 281 (consideration of marriage). The doctrine of part performance applies to agree- ments to convey easements, and to give leases. Barnes v. B. & M. R.R., 130 Mass. 388. E. India Co. v. Vincent, L. R. 35 Ch. D. 694; Ames 310. Harrell v. Sonnabend, 191 Mass. 310 (agree- ment to give a lease). Traveler Shoe Co. v. Koch, 216 Mass. 412 (agreement to give a lease). An agreement to make a gift may be enforced, if there has been part performance. Seavey v. Drake, 62 N. H. 393; Ames 308. Apart from the doctrine of part performance, there may be specific performance of an oral contract where there is antecedent fraud, resulting in the substitution of a fictitious agreement. Mullet v. Halfpenny, Free, in Ch. 404; Ames 315. Peek v. Peek, 77 Cal. 106. E. PARTIAL PERFORMANCE." Where there is a slight deficiency in quantity or quality, or a small incumbrance on the property, specific performance is sometimes decreed in favor of the vendor, with an allowance to the agreed vendee for the defects. 56 Except in a few jurisdictions (as by statute in Alabama) the payment of the purchase money does not seem to be an essential prerequisite for a bill for enforcement by vendee. 67 Because of the similarity of name, careful distinction should be made between this doctrine and that of Part Performance. 148 EQUITY AND ITS REMEDIES Dyer v. Hargrave, 10 Vesey, 505; Ames 245. Mansfield v. Wiles, 221 Mass. 75. The agreed vendee may usually have specific per- formance with compensation for what the seller cannot give him, provided the agreed vendee supposed at the time of the contract that the seller could convey all. Pingree v. Cofiin, 12 Gray 288. Tobin v. Larkin, 183 Mass. 389. But the agreed vendee may not have such relief where the agreement stipulates that the contract shall end if the agreed vendor cannot furnish a good title. Old Colony Trust Co. v. Chauncey, 214 Mass. 271. F. TIME THE ESSENCE OF THE CONTRACT. Where a certain time is fixed in the contract for performance, equity 88 ordinarily treats the provision as formal rather than essential and permits one to compel performance by the other, notwithstanding his own slight delay. Barnard v. Lee, 97 Mass. 92. Parkin v. Thorold, 16 Beavan 59; Ames 327. Mansfield v. Wiles, 221 Mass. 75. Equity commonly requires, however, in such a case that the party seeking the remedy shall have been "able and willing" to complete his contract substanti- ally at the time specified. The circumstances of each case will be considered. 68 The rule as to when a contract must be performed is not the same at law as in equity. At law it must be performed within the time specified in the contract or, if no time is specified, within a reasonable time. If not then performed it may be rescinded by either party. In equity, unless time is made "of the essence of the contract," the agreement need not be performed within the time specified. Mansfield v. Wiles, 221 Mass. 75. SPECIFIC PERFORMANCE OF CONTRACTS 149 Pomeroy, sec. 1408. Thaxter v. Sprague, 159 Mass. 397 (Offered to perform, several months late. Enforce- ment refused). Barnard v. Lee, 97 Mass. 92 (Contract stipulated payment on April 1; tender made May 25, vendee being in meantime in possession, though not ready. En- forced). A failure to make a tender of performance 59 at the agreed date, if time is not of the essence of the con- tract, and the defendant has repudiated the contract, will ordinarily not prejudice the plaintiff beyond the payment of costs. Tobin v. Larkin, 183 Mass. 389. Rutherford v. Haven, 11 Iowa 587; Ames 342. Staples v. Mullen, 196 Mass. 132 (bill by agreed vendor). It is better practise, however, always to make a tender, as it is sometimes a close question whether or not the other party has repudiated the contract. Smith etc. Co. v. Canady, 213 Mass. 122 (facts held not to be a repudiation). Time may, however, be made "of the essence of a contract," in which case a failure to perform or to tender performance at the time agreed upon may result in a loss of the right to compel the performance of the other party. For the general rule, see Barnard v. Lee, supra, and cases cited. Boston & Worcester St. Ry. Co. v. Rose, 194 Mass. 142. The time of performance may thus be made "of 59 A strict tender need not be made. It is sufficient if when the time comes the agreed vendee is able and prepared to pay and de- mands the deed. Cole v. Killam, 187 Mass. 213. 150 EQUITY AND ITS REMEDIES the essence 80 of the contract," a. By express stipulation to that effect. Garcin v. Penn. Furnace Co., 186 Mass. 405 (contract stipulated forfeiture of money and all rights if purchase not completed at date specified). Lloyd v. Rippingale, 1 Younge & Collyer, Exchequer 410; Ames 335. Heckard v. Sayre, 34 111. 142; Ames 340. But see Barnard v. Lee, supra. b. By the nature of the subject matter. Carter v. Phillips, 144 Mass. 100 (a going business). Goldsmith v. Guild," 10 Allen 239 (real estate of fluctuating value). c. By reason of the surrounding circumstances. Tilley v. Thomas, L. R. 3. Ch. App. 61; Ames 336. (vendee desired to use property at time specified). Where time is of the essence of the contract, the American rule is that the vendee loses what he has paid in, and all improvements if he fails to complete the contract at the agreed time. Keefe v. Fairfield, 184 Mass. 334. Heckard v. Sayre, 34 111. 142; Ames 340. The English rule is contra. Vernon v. Stephens, 2 P. Wms. 66; Amea 338. 60 The foregoing methods of making time "of the essence of a contract" are those set forth by Lord Justice Turner in Roberts c. Berry, 3 D., M., & G. 284. See more elaborate statements in Bar- nard v. Lee, supra. 61 This case occurred during the Civil War. The principal fluc- tuation seems to have been in the gold market. SPECIFIC PERFORMANCE OF CONTRACTS 151 The failure of an agreed vendee to appear at a tender or to offer explanation of his failure is equivalent to an absolute refusal on his part to perform and a waiver of his right to object to certain features of vendor's title, when sued at law for damages. Sleeper v. Nicholson, 201 Mass. 110 (a contract case). G. MARKETABLE TITLE. In order to maintain a bill for specific performance, an agreed vendor must show his title good beyond a reasonable doubt. First A. M. E. Society v. Brown, 147 Mass. 296. Jeffries v. Jeffries, 117 Mass. 184. Sturtevant v. Jacques, 14 Allen 523. Noyes v. Johnson, 139 Mass. 436 (a title by adverse possession held not good here). Galligan v. McDonald, 200 Mass. 299 (in which case title was found good). A title defective on the records may be marketable if actually good and such as a reasonable purchaser would accept. Aroian v. Fairbanks, 216 Mass. 215. Unless all persons concerned in an alleged defect are parties to the suit, a court in equity will not deter- mine whether or not a title is actually good, but whether or not there is a reasonable doubt as to its validity. Foster etc. Co. v. Sayles, 213 Mass. 319. But if the facts are clear and the dispute is purely a question of law, the court may decide whether or not the title is good, and make a decree accordingly. Chesman v. Cummings, 142 Mass. 65. It is not necessary that the vendor's title shall have 152 EQUITY AND ITS REMEDIES been good, or that he shall have had any title, at the time the agreement was made, so long as it is good at the date agreed upon for passing papers. Smith v. Greene, 197 Mass. 16. Dresel v. Jordan, 104 Mass. 407. If the title is not good on the date for conveying, the agreed vendee may terminate his contract, refuse a deed, and recover back any payments he has made, in an action of contract, without previous tender. Burk v. Schreiber, 183 Mass. 35. If the contract provides that the agreement shall be void if the agreed vendor cannot give a good title, and the title proves to be defective, the agreed vendee has no equitable rights against the agreed vendor. Old Colony Trust Co. v. Chauncey, 214 Mass. 271. H. MUTUALITY. Equity will not ordinarily compel one party to perform a contract if at the time performance is asked the only remedy of the other party is a suit for damage at law. Prof. Ames in 3 Columbia Law Rev. 1. Flight v. Bolland, 4 Russell 299; Ames 422 (Relief denied infant seeking to compel adult to convey, for infant having paid money could rescind and recover). Clayton v. Ashdown, 9 Viner's Abr. 393 ; Ames 421. (But after infant is of age he may enforce). The rule as sometimes stated is that the contract, to be enforced in equity, must be such that, at the time the bill was brought, it was enforceable by either party. Putnam v. Grace, 161 Mass. 237, at 247. Norris t;. Fox, 45 Fed. Rep. 406; Ames 426. SPECIFIC PERFORMANCE OF CONTRACTS 153 (Plaintiff who had agreed to "procure a warranty deed" for defendant from an- other, got title and brought bill. No enforcement because defendant could not compel at time of contract.) 62 The defense has no application to unilateral con- tracts or to bilateral contracts where the plaintiff has furnished the consideration or offers to do so at the time of performance. Howe v. Watson, 179 Mass. 30; Ames 429. (Agreement of defendant's intestate to leave all her property to plaintiff, if plain- tiff would care for her till death, which plaintiff did. Specific performanpe). Smith v. Greene, 197 Mass. 16 (agreed vendor need not have a good title at the time agreement is signed). Nor does it apply where the plaintiff is not bound in writing (in a case within the Statute of Frauds) and but for the offer in his bill could not be held to per- formance on his part. Mansfield v. Hodgdon, 147 Mass. 304. Hatton v. Gray, 2 Gas. in Ch. 164; Ames 421. O'Brien v. Boland, 166 Mass. 481; Ames 433. (Option for ten days to buy land, under seal, and therefore an irrevocable covenant ; accepted by plaintiff. Enforceable by him). An agreement enforceable by either party upon its acceptance within a time specified, is not void for want of mutuality. O'Brien v. Boland, 166 Mass. 481. It is sometimes said that the right of a plaintiff to 62 The reason here might well have been that the defendant never could enforce an agreement to procure a warranty deed from another. 154 EQUITY AND ITS REMEDIES enforce specific performance against a defendant in certain cases (as, for example, in the case of a vendor of land against a vendee) is dependent on the defend- ant's right against the plaintiff and therefore rests on the doctrine of mutuality. This is unsound. The doctrine is really a defense. It is the lack of mutuality that defeats the right of action. The true reason affording the remedy is that at law the vendor could recover 63 only the excess of the agreed price over the market value, and his land remains unsold. Old Colony R.R. v. Evans, 6 Gray 25. I. NECESSITY AND ADEQUACY OP CONSIDERATION. It is ordinarily said that where one agrees to make a gift, 64 though the agreement is under seal or recites a consideration, 66 equity will not enforce it unless there has been such part performance as to require it. Jefferys v. Jefferys, Craig & Phillips 139; Ames 261. Inadequacy of consideration unless it "shocks the conscience" is not of itself ground for refusing specific performance. Lord Eldon in Coles v. Trecothick, 9 Vesey 234. Lee v. Kirby, 104 Mass. 420. Nickerson v. Bridges, 216 Mass. 416. 68 When the vendor has conveyed land, he cannot collect in equity. He is then merely an unsecured creditor. Before, by the doctrine of conversion, he was in a position like that of a mortgagee. *But in Ferry v. Stephens, 66 N. Y. 321; Ames 262; a man agreed to sell land to his sister, and she to buy, for $1100; but the consideration was fictitious. He indorsed the receipt of the $1100 on the agreement. He died devising land to another. Held that as parol evidence was not admissible to vary the terms of the original contract, it bound both; and as nothing remained to be done but convey, specific performance was ordered. 65 As to the enforceableness of an option under seal, where there is no consideration, see O'Brien v. Boland (under Mutuality, supra). SPECIFIC PERFORMANCE OF CONTRACTS 155 J. SUNDRY DEFENSES, AND INCIDENTS OF THE REMEDY. A bill in equity for specific performance of a con- tract which equity will enforce is not inconsistent with a suit at law for the same cause, but is alternative. Both affirm the contract. But the plaintiff ultimately may be required to elect between his remedies. Connihan v. Thompson, 111 Mass. 270. Miller v. Hyde, 161 Mass. 472. It is a good defense to a bill for specific performance that the contract was obtained by mistake, fraud, misrepresentation or concealment. Kurinsky v. Lynch, 201 Mass. 28 (agreed vendor may defend on ground of fraudu- lent concealment of real purchaser). Breed v. Berenson, 216 Mass. 397 (agreement of attorneys to divide fees not enforced because of representations made as a basis for agreement). Mansfield v. Sherman, 81 Maine 365; Ames 385 (mistake of agreed vendor). Ames, pps. 351-373. Such misrepresentations as prevents the plaintiff from coming into a court with clean hands is a bar to relief. Chute v. Quincy, 156 Mass. 189. Cadman v. Homer, 18 Vesey 10; Ames 351. But such misrepresentations must not be too indefinite. Scott v. Hanson, 1 Simons 13; Ames 353. In equity, intentional misrepresentation by the plaintiff made for the purpose of deceiving, and relied upon, may be a good defense, though the defendant suffered no damage. Kelly v. Central Pacific R.R. Co., 74 Cal. 557; Ames 355 (damage to a third person). 156 EQUITY AND ITS REMEDIES But in the absence of fraud, the mere fact that the price at which the agreed vendor has contracted to sell is a low one, is no defense. Nickerson v. Bridges, 216 Mass. 416. If the plaintiff has misrepresented, he cannot en- force in part. Clermont v. Tasburgh, 1 J. & W. 112; Ames 358. If an agreement has been made by an agent, its specific performance against the alleged principal is dependent on the agent's authority. Harrigan v. Dodge, 216 Mass. 461. Record v. Littlefield, 218 Mass. 483. If an agreement specifies that property is to be delivered free of tenants, the vendor cannot enforce specific performance if the property is not free of tenants on the date set. Howe v. Conley, 16 Gray 552. That an agreement does not comply with the requirements of the Statute of Frauds is, of course, a good defense. See Statute of Frauds Part Performance (supra). Tobin v. Larkin, 183 Mass. 389. Nickerson v. Bridges, 216 Mass. 416. The absence of a proper tender by the plaintiff may be a good defense. Smith & Rice Co. v. Canady, 213 Mass. 122. But see Tobin v. Larkin, 183 Mass. 389. The fact that the defendant is not the owner of the real estate in controversy is a matter of defense, when the agreed vendee brings the bill. The plaintiff in such case need not allege the defendant's ownership. Harrigan v. Dodge, 200 Mass. 357. SPECIFIC PERFORMANCE OF CONTRACTS 157 But unless the plaintiff's bill alleges, in elucidation of an ambiguous memorandum, data identifying prop- erty, the bill is demurrable. Harrigan v. Dodge, 200 Mass. 357. Where one conveys to another on an oral promise to re-convey, the Statute of Frauds is a good defense to a bill for specific performance, 66 but the value of the land may be recovered at law. Cromwell v. Norton, 193 Mass. 291. See Creedon v. Mahoney, 193 Mass. 402. One who breaks an agreement to buy by failing to pay, cannot recover what he has paid if the other party is ready to perform. Keefe v. Fairfield, 183 Mass. 334. Where an agreement specifies that on the failure to make certain payments it shall become void, the vendee cannot by default avoid payment. The option is that of the vendor. Meagher v. Hoyle, 173 Mass. 577. 66 But if there has been no delivery, the deed may be cancelled as a cloud. Creeden v, Mahoney, 193 Mass. 402 (semble). 158 EQUITY AND ITS REMEDIES CHAPTER VIII. INJUNCTIONS. A. GENERALLY. B. RESTRAINING LEGAL PROOCEEDINGS AND JUDG- MENTS. C. RESTRAINING ILLEGAL ACTS OP PUBLIC OR CORPORATION OFFICIALS. A. GENERALLY. An injunction is a judicial order, operating in personam, requiring a party to do or to abstain from doing a particular act. Injunctions requiring the doing of acts are mandatory; those requiring the ab- staining from doing acts are prohibitive. An injunction may be either a final remedy or inter- locutory relief. In the former case it is a final decree and is perpetual; in the latter it is an interlocutory decree (or an order or writ) usually for the purpose of requiring the subject matter to be preserved in statu quo during litigation. It is fundamental that the restraining power of equity extends through the whole range of rights and duties and would be applied in every case of intended violation were it not for certain reasons of expediency and policy, such as the completeness and adequacy of the legal remedy. Pomeroy, sec. 1338. As a rule, American courts will not restrain purely personal torts, without violation of property right. Where no breach of trust or of contract appears, a bill in equity will not lie (in Massahusetts) to enjoin the publication of libelous statements injurious to the plaintiff's business, trade, or profession or which INJUNCTIONS 159 operate as a slander of his title to property. 1 Finnish Temperance Soc. v. Raivaaja Pub. Co., 219 Mass. 28 (libel). Boston Diatite Co.v. Florence Mfg. Co., 114 Mass. 69. Worthington v. Waring, 157 Mass. 421 (as to the right of a former employee to restrain blacklisting. See discussion of the case in Burnham v. David, 217 Mass. 35). Among the principal uses of the injunctive form of decree are 1. To restrain legal proceedings and judgments. See Section B in this chapter. 2. To restrain illegal acts by public or corporation officials. See Section C in this chapter. 3. To enforce negative contracts. See Chapter VII, Sections B and C. 4. To restrain torts. See Chapter I X. 5. To restrain violation of equitable rights, particularly rights under trusts. (Not treated in this book. See any text- book on Trusts). 6. To enforce duties created by statute. 7. To preserve (by interlocutory decree) the subject matter of litigation in statu quo pending a final decree. This is procedural rather than a matter of substantive law. 1 The contra appears to be the rule in England. See also Stevens v. Rockport Granite Co., 216 Mass. 486, where noise was enjoined as an "invasion of the right to comfortable living." 160 EQUITY AND ITS REMEDIES B. RESTRAINING LEGAL PROCEEDINGS AND JUDGMENTS. The restraining of legal proceedings and judgments was one of the first important branches of equity jurisdiction. See 1 Lord Campbell's Lives of the Chan- cellors 235, or 1 Hallam's Const. History 472, for full account of contest between equity and law, and its settlement under James I. Equity interferes with actions or judgments at law only when the complainant has an equitable defense not available at law, or a good defense at law which he was prevented from using through fraud or acci- dent, unmixed with negligence of himself or his agent. Hendrickson v. Hinckley, 17 Howard 443. Dehon v. Foster, 4 Allen 545. Payson v. Lamson, 134 Mass. 593. Moors v. Ladenburg, 178 Mass. 272. Platt v. Woodruff, 61 N. Y. 378. The necessity for interference in the first of the foregoing classes is largely eliminated by statutes per- mitting equitable defenses in suits at law. See Mass. Rev. Laws, ch. 173, sees. 28 and 32; Mass. St. 1913 ch. 307. But resort to an injunction may be necessary to obtain "equitable set off" of judgments. Cromwell v. Parsons, 219 Mass. 299 (against holder of execution and sheriff to enjoin collection of execution unless plaintiff's claim is set-off). Omission to present at law some legal defense, and failure to succeed at law through ignorance, negligence or mistake of counsel, are not grounds for equitable interference. INJUNCTIONS 161 Emerson Udall, 13 Vermont 477. Payson v. Lamson, 134 Mass. 393. Mayor of New York v. Brady, 115 N. Y. 599 at 616. Ames Cases, 4 (note). Since equity acts in personam, a court may restrain one within its jurisdiction from prosecuting a suit in another state or country, if he is thereby taking an inequitable advantage of another. Kempson v. Kempson, 58 N. J. Eq. 94; & Ames 26. Dehon v. Foster, 4 Allen 545. (Where A was enjoined from prosecuting an action in another state against B, a Mass, insolvent, whose property there A had attached. This would have operated to prevent property coming to B's Massa- chusetts assignee). Sundry cases in note, Ames 28. But such restraint will not be made simply because the interpretation of the law by the highest court of the other state, relative to the subject matter, is different from that of the Local or the Federal Supreme Court. Carson v. Dunham, 149 Mass. 52. (General rule that court first getting juris- diction holds it. Dunham's right to use South Carolina courts was as good as Carson's right to use Mass, or U. S. courts). The federal courts will not enjoin proceedings in the state courts except under bankruptcy or other special federal statutes, or in order to render effective their own decrees; nor as a rule will one court enjoin proceedings in another of co-ordinate jurisdiction. Peck v. Jenness, 7 How. 612 (cited in 162 EQUITY AND ITS REMEDIES Hill Man. Co. v. Prov. & N. Y. S. Co., 113 Mass. 495). Furnald v. Glenn, 64 Fed. Rep. 49. U. S. v. Parkhurst-Davis Mercantile Co., 176 U. S. 317. Riverdale Cotton Mills v. Alabama & G. Mfg. Co., 198 U. S. 188. (Defendant defeated in the federal courts in Alabama after ten years' fight, brought bill in state court attacking efficacy of decrees of federal court on ground of jurisdiction to which it had already sub- mitted. Federal court enjoined the liti- gation to make effective its own decree). Old Dominion Copper Co. v. Bigelow, 203 Mass. 159 (see sundry temporary in- junctions, in description of proceedings). U. S. Comp. Stat. 1901, sec. 720. Injunctions relating to suits at law are directed to the litigants, and not to the judges of the law courts. Although jurisdiction depends on the litigants, the Massachusetts court has restrained a suit between two non-residents concerning subject matter here, by a decree against the plaintiff in the law suit and his agents, with service ordered on his resident attorney. Moors v. Ladenburg, 178 Mass. 272. Even though the parties have been enjoined from proceeding, a judgment obtained in violation of the injunction is valid at law. Winston v. Westfeldt, 22 Ala. 760; Ames 3. C. RESTRAINING ILLEGAL ACTS OP PUBLIC OB CORPORATION OFFICIALS. The legal remedy of quo warranto is usually suf- ficient to test the right to a public office or to a INJUNCTIONS 163 corporation office or membership 2 of one who claims to hold it; and the legal remedy of mandamus suf- ficient to compel the reinstatement of officials im- properly removed, to obtain a view of corporation books, and to obtain relief from violations of law. Varney v. Baker, 194 Mass. 239 (mandamus to compel books to be shown). Andrews v. Mines Corporation, 205 Mass. 121. Aspinwall v. Boston, 191 Mass. 441. Longyear v. Hardman, 219 Mass. 405 (man- damus against one acting as director; good general discussion). Walworth v. Cassassa, 219 Mass. 20 (to test town solicitor's office). The remedies of mandamus and certiorari are ample where one threatens to perform a statutory duty wrongly. Moneyweight Scale Co. v. McBride, 199 Mass. 503; s. c. 223 U. S. 749. Equity courts may, however, restrain illegal acts of public or corporation officials where such acts tend to produce irreparable injury, to create a cloud on title 3 or to give rise to multiplicity of suits. Von Arnim v. American Tube Works, 188 Mass. 515 (excessive compensation taken by directors). Granara v. Italian Cath. Cem. Ass'n, 218 Mass. 387 (illegal issuance of shares). Moneyweight Scale Co. v. McBride, 199 Mass. 503 (enjoining action under uncon- stitutional statute). 2 But the unlawful expulsion of a member of a voluntary asso- ciation may be restrained by injunction. 8 But not if the remedy by writ of entry is adequate. Preston v. Newton, 213 Mass. 483. 164 EQUITY AND ITS REMEDIES Small v. Gaboon, 207 Mass. 359 (to restrain removal of church under illegal vote). Kelley v. Sullivan, 201 Mass. 34 (by member of lodge to restrain purchase of land in violation of by-law). Greene v. Fitchburg 219 Mass. 121 (by ice dealer to restrain city from illegally fixing ice prices.) Pomeroy, sec. 1345 (see note, for collection of cases). The corporation* is the proper plaintiff in such a case; but if sufficient demand has been made on it by a stockholder, or if such a demand if made would obviously be futile, a stockholder may bring suit in his own name. Brewer v. Boston Theatre, 104 Mass. 378. Bartlett v. N. Y., N. H. & H. RR. Co. 221 Mass. 530 (inefficient demand). Von Arnim v. American Tube Works, 188 Mass. 515. Granara v. Italian Cath. Cem. Ass'n, 218 Mass. 387. The right to restrain illegal appropriations of money by cities and towns does not fall within general equity jurisdiction, but is regulated by statute. Prince v. Crocker, 166 Mass. 347 (attempt to restrain Boston Transit Commission). Mass. Rev. Laws, ch. 25, sec. 100 (permitting ten taxable inhabitants to apply to enjoin town from illegal expenditure). Oliver v. Gale, 182 Mass. 39 (under Rev. Laws, ch. 25, sec. 100). Mass. Rev. Laws, ch. 27, sec. 26 (permitting bill to restrain illegal excess of debt limit.) 4 Under similar circumstances, a bond holder may sue if the trustee for the bondholders has failed, on request, to act. Young v . Haviland, 215 Mass. 120. REPARATION AND PREVENTION OF TORTS 165 CHAPTER IX. INJUNCTIONS SPECIFIC REPARATION AND PREVENTION OF TORTS. A. WASTE. B. TRESPASS AND DISTURBANCE OF EASEMENTS. C. NUISANCE. D. INFRINGEMENT OF PATENTS, COPYRIGHTS AND TRADEMARKS. UNFAIR COMPETITION. E. INTERFERENCE WITH BUSINESS OR CONTRACT. A. WASTE. Waste is an unreasonable or improper use, abuse, mismanagement, or omission of duty, touching real estate, by one rightly in possession thereof, which results in substantial injury. Delano v. Smith, 206 Mass. 365 (general discussion of waste). Pynchon v. Stearns, 11 Met. 304 (acts do not amount to actionable waste unless "pre- judicial to the inheritance," etc.) At common law 1 one immediately entitled to an estate of inheritance (but no other) might have a 1 The common law jurisdiction has been extended by statute in Massachusetts so as to afford relief to persons having the next immediate estate of inheritance or remainder, or reversion in fee simple or fee tail, after an intervening estate for life, and to a re- mainderman or reversioner for life or for years against a tenant in dower, by curtesy, for life or for years. Rev. Laws, ch. 185. And the statute gives one treble damages for waste by a co-tenant or joint tenant, who has not given thirty days' notice. It is held not to apply, however, where the defendant claims sole ownership. Jenkins v . Wood, 145 Mass. 494. 166 EQUITY AND ITS REMEDIES remedy by an action of waste, as in the case of a land- lord against his tenant. Pomeroy, sec. 1348. But waste may be restrained in equity though the plaintiff has an estate less than an estate of inherit- ance. 2 Mollineaux v. Powell, 3 P. Wms 268; Ames 468. (by tenant for life). Delano v. Smith, 206 Mass. 365 (by mort- gagee). And cases cited infra. And in general the basis of relief in waste is the irreparable injury to the property concerned. Attaquin v. Fish, 5 Met. 140 (good discussion, but no remedy on facts). Clark v. Holden, 7 Gray 8 (cutting timber may be waste, though to do so is good husbandry). Delano v. Smith, 206 Mass. 365 (use as small- pox hospital may be). Hawley v. Clowes, 2 Johns Ch. 122; Ames 484 (cutting timber). Small v. Gaboon, 207 Mass. 359 (removal of building). Whitfield v. Benit, 2 P. Wms 240; Ames 460 (taking minerals). Peters v. Stone, 193 Mass. 179 (to restrain removal of poultry building claimed by defendant as personalty). Poerther v. Russell, 33 Wise. 193 (removal of mill machinery). 3 Pomeroy says an injunction will lie in nearly all cases where a legal action would lie to recover possession of land wasted, or to obtain damages. Pomeroy, sec. 1348. It lies between co-tenants. Hawley v. Clowes, 2 Johns. Ch. 122; Ames 484. REPARATION AND PREVENTION OF TORTS 167 Brock v. Dole, 66 Wise. 140 (erecting chim- ney). Baugher v. Crane, 27 Md. 36 (changing character of building). Cannon v. Barney, 59 Miss. 289 (dismant- ling ginhouse). West Ham Board v. E. London Co., (1900) 1 Ch. 624 (covering land with rubbish). In some jurisdictions non-payment of taxes by a tenant for life is waste. In Massachusetts, the neglect of a life tenant to insure is not waste, however. Stetson v. Day, 51 Maine 434. Harrison v. Pepper, 166 Mass. 288 (neglect to insure). A common application of the equitable remedy 3 for waste is in decrees upon bills brought to restrain mortgagors from impairing the property mortgaged.* Thompson v. Heywood, 129 Mass. 401. Brady v. Waldron, 2 Johns. Ch. 148; Ames 483. Equity may enjoin waste though the property is held by a life tenant "without inpeachment of waste." Attaquin v. Fish, 5 Met. 140. But equity will not ordinarily enjoin a. "Permissive" waste; i. e. mere neglect to repair. Castlemain v. Craven, 22 Viner's Abr. 523; Ames 466. 8 For a full discussion of cases in which equity will protect and enforce legal rights in real estate, see Hart v . Leonard, 42 N. J. Eq. 416; Ames 549. 4 But the mortgagee has a remedy at law in trover against the mortgagor, or one who takes from him, to recover damages for por- tions of the property that have been wrongfully severed and con- verted. Searle v. Sawyer, 127 Mass. 491. But see Southbridge Savings Bank v. Mason, 147 Mass. 500 (in equity). 168 EQUITY AND ITS REMEDIES b. A technical waste with little or no damage. Mollineauxv. Powell, 3 P. Wms. 268; Ames 468. c. "Ameliorating" waste. A technical waste which improves the inheritance. Doherty v. Allman, L. R. 3 App. Cases 709; Ames 462 (a tenant altered storehouses to dwellings to suit changed character of neighborhood). Pynchon v. Stearns, 11 Met. 304 (opening ways, digging drains, erecting houses, etc.) Nor will equity enjoin the mere injuring of the reputation of property. Delano v. Smith, 206 Mass. 365. Equity having obtained jurisdiction to enjoin against waste will ordinarily award damages also. Pomeroy, sec. 237. In re Leeds Woolen Mills, 129 Fed. Rep. 922. B. TRESPASS. Trespass is a wrongful interference with the posses- sion of property by one not in possession, or not rightfully in possession. 6 Equity will not restrain a single act of trespass to property, temporary in nature and resulting in only nominal damage. Gates v. Johnston Lumber Co., 172 Mass. 495 ; Ames 520 (to restrain purchaser from removing bricks from plaintiff's land later than agreed time). But if the act threatened is such as to destroy the 5 The jurisdiction in equity to enjoin in the case of trespass is a recent development. There are few reported cases prior to 1800. For growth of the jurisdiction, see cases in Ames, pp. 486-499, espe- cially Lowndes v. Beetle, 33 L. J. Ch. 451; Ames 499. REPARATION AND PREVENTION OF TORTS 169 property or to cause irreparable damage, then equity will restrain it. Richards v. Dower, 64 Cal. 62; Ames 517 (tunneling under land). Erhardt v. Boaro, 113 U. S. 537; Ames 507 (taking ores from mine). Lowndes v. Beetle, 33 L. J. Ch. 451; Ames 499 (cutting timber). Echelkamp v. Schrader, 45 Mo. 505; Ames 511 (removal of building). If there has been repetition of an act of trespass and further repetition is threatened, although the act is one resulting in only nominal damage, there may be an injunction so as to avoid repeated actions at law. 8 Boston & Maine R.R. v. Sullivan, 177 Mass. 230 (repeated trespass by hackman). So, too, a trespass, continuous in its nature, may be enjoined. Szathmary v. B. & A. R.R. Co., 214 Mass. 42 (abutment wall). Goodson v. Richardson, L. R. 9 Ch. App. 221; Ames 502 (laying pipes through land). Wheelock v. Noonan, 108 N. Y. 179; Ames 527 (mandatory injunction to compel re- moval of large pile of stone from plaintiff's land) 7 Tucker v. Howard, 128 Mass. 361; Ames 548 (obstruction of plaintiff's way by wall of building). 6 When an injunction is asked for on this ground, it is true in most jurisdictions that irreparable damage need not be an element, except so far as it is implied from the repeated assaults upon one's rights. 7 But there will be no injunction to restrain one from trespassing, to remove his own property. Gates v. Johnston Co., 172 Mass. 495; Ames 520. 170 EQUITY AND ITS REMEDIES The projection of a structure over another's line is a continuing trespass. An injunction against its continuance is granted, 8 notwithstanding the hardship to the defendant and in spite of only nominal damage to the plaintiff. Otherwise the wrongdoer might deprive the other of his land without his consent or obtain as easement therein.* Tucker v. Howard, 128 Mass. 361 ; Ames 548. Curtis Mfg. Co. v. Spencer Wire Co., 203 Mass. 448 (disproportionate expense to defendant no defense). Milton . Puffer, 207 Mass. 416. Kershishian v. Johnson, 210 Mass. 135. Szathmary v. B. & A. R.R. Co., 214 Mass. 42 (railroad abutment a few inches over line). Brooks v. Rosenbaum, 217 Mass. 172 (founda- tion stones. Relief against tenant, who put them there, but not against owner of building). But in such cases where there is extreme hardship to a defendant innocent of wrongful intent, an injunc- tion may be refused where the plaintiff's interest is a short tenancy and he suffers only nominal damage. Lynch v. Union Inst. for Sav., 158 Mass. 394 (expensive vaults built by defendant over few feet of premises leased by plaintiff). Brande v. Grace, 154 Mass. 210 (structure 8 In Brooks v. Rosenbaum, 217 Mass. 172, there was a decree against a tenant who had built over the line, ordering him to remove the foundation or pay certain damages. As the plaintiff did not appeal from the decree, it was thus allowed to stand. See this case also for a discussion of the right to relief against the owner of the reversion, where the tenant builds over the line. 9 This would be unconstitutional. These abutment cases are sometimes classed under nuisance rather than trespass. The Mass- achusetts Supreme Court uses both designations. See Curtis Mfg. Co. v. Spencer Wire Co., cited in text. REPARATION AND PREVENTION OF TORTS 171 cutting off show-windows of short term tenant). Harrington v. McCarthy, 169 'Mass. 492 (foundations of building). Hunter v. Carroll, 64 N. H. 572; Ames 529 (two houses innocently built over disputed line on strip worth ten dollars. No injunction unless defendant refused to pay plaintiff fifteen dollars for the land). One may not ordinarily have an injunction against a defendant in possession in order to remove a cloud from a title or to recover land, a writ of entry being sufficient; although if a suit at law is pending a temporary injunction may issue, restraining injury to the property. Preston v. Newton, 213 Mass. 483. Deere v. Guest, 1 Mylne & Craig 516; Ames 492. Erhardt v. Boaro, 113 U. S. 537; Ames 507. Indeed, where the title to real estate is in dispute it has been held that in order that the plaintiff may prevail in equity it must appear that he has caused his rights to be determined at law, or that the defend- ant is insolvent, or that the plaintiff would be injured unless the relief is granted. Washburn v. Miller, 117 Mass. 376; Ames 515 (defendant claimed right of way over plaintiff's property). Slater v. Gunn, 170 Mass. 509 (extending Washburn v. Miller). Hart v. Leonard, 42 N. J. Eq. 416; Ames 549 (good discussion). The modern tendency, however, is to enlarge the jurisdiction of equity in such cases. Boston & Maine R.R. v. Sullivan, 177 Mass. 230. 172 EQUITY AND ITS REMEDIES Goodson v. Richardson, L. R. 9 Ch. App. 221; Ames 502. Billings v. Mann, 156 Mass. 203. A tenant in common may have a stranger restrained from trespass. Preston v. West's Beach Corp'n, 195 Mass. 482 (house built on beach). If the defendant (by demurrer) admits the title of the plaintiff, an injunction against continuing trespass may issue, especially if the defendant is financially irresponsible. Hodgson v. Duce, 2 Jur. (n. s.) 1014; Ames 523. Slater v. Gunn, 170 Mass. 509 (where defend- ant is insolvent). Disturbance of a private 10 easement by the erection of structures narrowing or impairing it may be enjoined, under principles similar to those in trespass. Crabtree v. Miller, 194 Mass. 123 (to restrain locking a gate on a way). Tucker v. Howard, 128 Mass. 361; Ames 548 (no preliminary injunction, but on final decree, after completion, defendant com- pelled to remove wall). O'Brien v. Goodrich, 177 Mass. 32. Kendall v. Hardy, 208 Mass. 20. Frost v. Jacobs, 204 Mass. 1 (building pro- jected eight feet above surface). The defendant will not be allowed to escape with damages by offering to built a better way. Downey v. Hood, 203 Mass. 4. 10 In case the easement disturbed is public, the attorney general may be the proper person to bring the bill. REPARATION AND PREVENTION OF TORTS 173 If the damages are nominal and the hardship 11 to the defendant so great as to be inequitable or oppres- sive, or if the injury is slight while to restore things would entail a great loss on the defendant, or if there is laches in enforcing the remedy, a mandatory injunc- tion may be refused. Starkie v. Richmond, 155 Mass. 188 (injunc- tion refused after nine years, the damage being waived). Levi v. Worcester Consol. Ry., 193 Mass. 116 (court ordered substitute way offered by defendant, or, if rejected, damages for permanent loss of the way). Where enjoyment of light and air is an easement, its disturbance may be enjoined. There is no such easement in Massachusetts, except by grant or reservation. Lipsky v. Heller, 199 Mass. 310 (bill to restrain violation of rights in an "open court"). Ames, pp. 534-543 (for English cases on such easements). Mass. Rev. Laws. ch. 130, sec. 1 (no such easement by prescriptive use). Duncan v. Goldthwaite, 216 Mass. 402 (de- fendant owning both sides of way, bridged across). Raynes v. Stevens, 219 Mass. 556 (no implied casement of light and air in rear of store hired). Equity may in an appropriate case enjoin trespass to personalty. Watson v. Sutherland, 5 Wallace 74; Ames 531 (threatened levy against chattels claimed by one not the defendant). 11 But see Koehl v. Burrell, 11 Ch. Div. 140 (expensive building ordered removed; no laches). 174 EQUITY AND ITS REMEDIES C. NUISANCE." Nuisance results from the conduct of one's property or of one's self in such a manner as to injure another to an extent contrary to public policy. Relief from nuisance is commonly sought in equity when the nuisance is of a continuing kind. Some examples 13 of nuisances are: Pollution of air by smoke or smell, except in territory commonly given over to such use (and it is no defense that others caused part of the pollution). Thorpe v. Brumfitt, L. R. 8. Ch. App. 650; Ames 547. Cf. Downing v. Elliot, 182 Mass. 28. Georgia v. Tennessee Copper Co., 237 U. S. 474 (gases injuring vegetation in adjoining state.) Escape of sand and acids on tenant below. Boston Ferrule Co. v. Hills, 159 Mass. 147. Noise 14 of machinery. Stevens v. Rockport Granite Co., 216 Mass. 486. Odors from restaurant. Campbell v. Seaman, 63 N. Y. 568. Vaughan v. Bridgham, 193 Mass. 392. Escaping water. Drake v. Taylor, 203 Mass. 528. 12 It is difficult to make an exact definition of nuisance or classi- fication of nuisance cases. Cases of the kind now classed as Inter- ference with Business were formerly called Nuisance (see Sherry v. Perkins, 147 Mass. 212), and the Massachusetts court calls encroach- ment by abutments both trespass and nuisance (see Curtis Mfg. Co. v. Spencer Wire Co., 203 Mass. 448). 18 See other examples collected in Ames 611, note. 14 For noise to amount to a nuisance, it must be harmful to the health or comfort of ordinary people and an "invasion of the right to comfortable living." Whether a certain amount of noise is, under the circumstances, a nuisance is usually a question of fact. Stevens v. Rockport Granite Co., 216 Mass. 486. REPARATION AND PREVENTION OF TORTS 175 Stoppage of brook. Melrose v. Cutter, 159 Mass. 461. Hittinger Fruit Co. v. Cambridge, 218 Mass. 220. Pollution of waters. McNamara v. Taft, 196 Mass. 597. Merrifield v. Lombard, 13 Allen 16. Parker v. American Woolen Co., 195 Mass. 591. But some pollution may be reasonable. Middlesex Co. v. McCue, 149 Mass. 103 (fertilizer). Downing v. Elliot, 182 Mass. 28 (soft coal in greenhouse injuring ice). The use of property so that its appearance is offens- ive to the eye is conmonly not held to be nuisance. Lane v. Concord, 70 N. H. 485. Formerly, in England, to obtain a permanent in- junction in equity for nuisance one must first succeed at law. 15 Weller v. Smeaton, 1 Brown's Chanc. 572; Ames 554. If the plaintiff's right and the defendant's wrong are clear, equity will now grant a permanent injunc- tion against nuisance without a prior action at law. Otherwise, it may temporarily enjoin until legal pro- ceedings are had. Merrifield v. Lombard, 13 Allen 16 (polluting a stream). 15 Since upon the plaintiff's success at law he was entitled as of course to an injunction in equity restraining the nuisance (Bemis v. Upham, 13 Pick. 169; Hill v. Sayles, 12 Cush. 454) the Massachusetts statutes now allow the Superior Court, at law, to issue (in addition to an execution) a warrant to an officer to abate the nuisance at the expense of defendant, or the court of law may even enjoin. Mass. Rev. Laws, ch. 186, sees. 1-5. 176 EQUITY AND ITS REMEDIES Woodward t;. Worcester, 121 Mass. 245 (diversion of stream). The equitable jurisdiction is sometimes said to be for the purpose of avoiding a multiplicity of suits. Stevens t>. Rockport Granite Co., 216 Mass. 486. A public nuisance is an injury to the property or rights of that part of the public that comes within its sphere of operation. The attorney general should bring the bill in this case. An individual may not. Brainard v. Conn. River Ry. Co., 7 Cush, 506' Attorney General v. Fitzsimmons, 35 Ameri- can Law Register, 100; Ames 622. (fight) Dwyer, v. N. Y., N. H. & H. R.R., 209 Mass. 419 (flow of creek diminished by grade crossing changes). Eaton v. Locke, 202 Mass. 324. Examples : 1. Obstruction of highways and. waterways. Dwyer v. N. Y., N. H. H,& R.R. 209 Mass. 419. 2. Affecting the public health. Attorney General v. Hunter 1 Devereux Eq 12; Ames 621. Attorney General v. Jamaica Pond Aqueduct 133 Mass. 361. 3. Affecting the public morals. Attorney General v. Fitzsimmons, 35 Am. Law Reg. 100; Ames 622. Carleton v. Rugg, 149 Mass. 550. 4. Statutory. Attorney General v. Williams, 174 Mass. 476. But an individual may have restraint of a public nuisance if it is also a private nuisance as to him in REPARATION AND PREVENTION OF TORTS 177 that his injury is different in kind, not merely in de- gree, from that of the rest of the public. Robinson v. Brown, 182 Mass. 266 (public nuisance not private, altho obstruction to highway in front of plaintiff's premises). French v. Conn. River Lumber Co., 145 Mass. 261. (Public nuisance, also private; a boom of logs in river near plaintiff's wharf). Eaton v. Locke, 202 Mass. 324. In some cases a nuisance may be enjoined on the suit of a city or town or even of a state. Taunton v. Taylor, 116 Mass. 254. Melrose v. Cutter, 159 Mass. 461 (where town was responsible for care of drain). Springfield v. Conn. River R.R., 4 Cush. 63 (railroad in highway). Rockport v. Elwell, 219 Mass. 287 (to enjoin pollution of city water supply, under statute). Georgia v. Tennessee Copper Co., 237 U. S. 474 (to enjoin noxious gases from adjoining state). The lessor of property or any owner of a reversion- ary interest may have an injunction only upon proof that there will otherwise be an irreparable damage to the reversion. Atkins v. Chilson, 7 Met. 398. Parker v. American Woolen Co., 195 Mass. 591. Because the enjoining of a nuisance is a matter of right, no amount of delay, short of the time necessary for the acquirement of a prescriptive right, will, in the absence of estoppel, prevent one from maintaining his action in equity to restrain the commission of a nuisance or a trespass. 178 EQUITY AND ITS REMEDIES Gal way v. Metropolitan Elevated Ry. Co., 128 N. Y. 132; Ames 600. Pomeroy, sec. 817. An injunction may be refused where the nuisance is occasional or temporary, or the injury is past. Swaine v. Great Northern Ry. Co., 4 De Gex Jones & Smith 211; Ames 569 (occasional dead cat in refuse pile). Kenney v. Consumers' Gas Co., 142 Mass. 417. In granting temporary injunctions the court will consider the relative hardship to the parties. Upon a final decree, if the plaintiff has established a case of permanent nuisance, the court cannot weigh the advantages, since the injunction is a matter of right and is granted even though the damages are nominal. 16 McNamara v. Taft, 196 Mass. 597 (plaintiff's farm of small value compared with defend- ant's mill). Mann v. Willey, 51 N. Y. App. Div. 169; Ames 572 (pollution by sewage, not noticeable to smell or sight, in water not yet used for drinking purposes; decree for plaintiff). Brookline v. Mackintosh, 133 Mass. 215. Melrose v. Cutter, 159 Mass. 461 (no actual damages proven). Hennessy v. Carmony, 50 N. J. Eq. 616; Ames 578. 16 In the matter of injunctions commonly granted as of right, there are cases where on the question of permanently enjoining, the relative hardships were considered by the court and the decree re- fused. Daniels v. Keokuk Water Co., 61 Iowa 549; Ames 585 (soft coal nuisance); Richards Appeals, 57 Penn. 105; Ames 574 (soft coal nuisance). That plaintiff's bill was in the nature of a holdup prevented a decree in Edwards v. Allouez Mining Co., 38 Mich. 46; Ames 608. REPARATION AND PREVENTION OF TORTS 179 If the plaintiff sustains in equity his right to a permanent injunction for a nuisance, he may be entitled to damages to date; and if there has been some change since the filing of the bill that would make an injunction ineffective, he may have damages. Potter v. Howe, 141 Mass. 357. Lexington Print Works v. Canton, 171 Mass. 414. Case v. Minot, 158 Mass. 577. As there is no such thing as an equitable nuisance, laches not amounting to a prescriptive right is no defense, but may be considered in granting prelimin- ary injunctions, or in granting permanent injunctions until after a suit at law. Galway v. Metropolitan Elevated Ry. Co., 128 'N.Y. 132; Ames 600. Dana v. Valentine, 5 Met. 8. But a prescriptive right to maintain a private nuisance may be gained by the statutory period. Dana v. Valentine, 5 Met. 8. New Salem v. Eagle Mill Co., 138 Mass. 8. In the case of a public nuisance no prescriptive right can be gained. Attorney General v. Revere Rubber Co., 152 Mass. 444. In the case of pollution amounting to a nuisance, it is sometimes immaterial that the pollution does not interfere with the present use of plaintiff's property. 17 Parker v. American Woolen Co., 195 Mass. 591. But see Dana v. Valentine, 5 Met. 8 (where 17 Actual damages need not be shown in a suit at law, where a party's right of property is invaded. Bolivar Mfg. Co. v. Neponset Mfg. Co. 16 Pick. 247. 180 EQUITY AND ITS REMEDIES relief was not afforded owners of vacant lots, from smells). It is immaterial to the plaintiff's right to relief that he acquired his property knowing that the defendant was maintaining a nuisance. Boston Ferrule Co. v. Hills, 159 Mass. 147. It is no defense that third persons are in part responsible for the results complained of. Parker v. American Woolen Co., 215 Mass. 176. But if one has let a building with full knowledge of the lessee's business, he is not entitled to have him enjoined from doing what is necessarily incident to the conduct of that business. He will be left to his legal remedy, if any. Browne v. Niles, 165 Mass. 276. The legislature may change the common law of nuisances by adding to or taking from its operation certain acts. 18 Hideout v. Knox, 148 Mass. 368 (spite fence; under Rev. Laws, ch. 33, sec. 19). Sawyer v. Davis, 136 Mass. 239 (ringing factory bell. See Rev. Laws, ch. 106, sec. 9). If a license to conduct a business complained of has been granted by a competent public body, duly authorized by the legislature, the business will not be enjoined as a nuisance. Injury in such case is "damnum absque injuria" White v. Kenney, 157 Mass. 12 (stable). 18 No attempt is made here to collect the large number of acts that under statutes are made nuisances. They include such diverse acts as advertisements on natural scenery, erections in tide waters, use of buildings for illegal sale of liquor or for gaming, etc. REPARATION AND PREVENTION OF TORTS 181 Levin v. Goodwin, 191 Mass. 341 (bowling alley, altho pecuniary damage shown). The decree in a nuisance case may direct the ces- sation of the result, though not necessarily of the thing causing it (e. g. the jarring of a machine, but not the use of the machine itself). Hennessy v. Carmony, 50 N. J. Eq. 616. Stevens v. Rockport Granite Co., 19 216 Mass. 486. Cronin v. Bloemecke, 58 N. J. Eq. 313; Ames 560 (games of baseball not enjoined, but the playing if it so as to be a nuisance to plaintiff, pendente lite). The decree may include damages. Parker v. American Woolen Co., 215 Mass. 176 (pollution of stream. Damages in- cluded diminution of rent and value and cost of cleaning out). D. INFRINGEMENT OF PATENTS, COPYRIGHTS AND TRADEMARKS. UNFAIR COMPETITION. Patents. Suits involving the infringement of patents must be brought in the federal courts. But suits involving assignments of patents and other agreements about them may be brought in the state courts. 20 Potterton v. Condit, 218 Mass. 216 (suit for royalty). Marshall Engine Co. v. New Marshall Engine 19 In this case the decree enjoined the operating of machines in such a manner as to interfere with the reasonable comfort and enjoyment of life by the plaintiffs. 20 Nor is the state court ousted of its jurisdiction because a question of invalidity is incidentally presented. Marshall Engine Co. v. New Marshall Engine Co., 199 Mass. 546. 182 EQUITY AND ITS REMEDIES Co., 199 Mass. 546 21 (suit for specific per- formance of an agreement to assign a patent). A preliminary injunction will usually be granted against a defendant if the plaintiff's right and the defendant's infringement are clear. Standard Elevator Co. v. Crane Elevator Co., 56 Fed. Rep. 718. Public acquiescence in the plaintiff's claim, a prior adjudication of a federal court in an infringement suit, or by the Patent Office in an interference pro- ceeding, are strong factors in determining the course of the court as to a temporary injunction. Blount v. Socite Anonyme, 53 Fed. Rep. 98. Dickerson v. De la Vergne, etc., Co., 35 Fed. Rep. 143. Leeds C. Co. v. Victor Talking Mach. Co., 213 U. S. 301. The giving of a bond by the plaintiff to indemnify the defendant if the bill is subsequently dismissed, may be made a pre-requisite to granting a temporary injunction; or a bond by the defendant to cover damages that may be ultimately recovered may be the condition on which a temporary injunction is refused. Consolidated Electric Storage Co. v. Ac- cumulator Co., 55 Fed. Rep. 485 (bond by plaintiff). Nat. Cash Register Co. v. Navy Cash Regis- ter Co., 99 Fed. Rep. 565 (bond by defendant). If the litigation results in the plaintiff's prevailing, a permanent decree against infringement is entered, lasting for the life of the patent. Affirmed in 223 U. S. 473. REPARATION AND PREVENTION OF TORTS 183 Copyrights. Copyrights 22 like patents are, under the constitution, within the exclusive jurisdiction of the federal govern- ment. Constitution of the United States, Article 1, Section 8. U. S. Comp. Stat. 1901, p. 3406. In cases involving an alleged infringement, it must first appear that the plaintiff is an "author or pro- prietor" under the statute. Callaghan v. Myers, 128 U. S. 617 (a reporter of decisions may be, as to head notes). Burrow-Giles Lithographic Co. v. Sarony 111 U. S. 53 (photograph as a work of art). One may make bona fide quotations from a book without necessarily being an infringer. The value of the material taken and the importance of it to the sale of the original work are considered. Baker v. Selden, 101 U. S. 99. Edward Thompson Co. v. American Law Book Co., 122 Fed. Rep. 922. Dun v. Lumbermen's Credit Ass'n, 209 U. S. 20. The granting of temporary injunctions is governed by considerations similar to those affecting their granting in patent cases. West Publishing Co. v. Lawyers' Co-op. Pub. Co., 53 Fed. Rep., 265 (refused here). The final decree, if in favor of the plaintiff, includes an accounting of the defendant's profits. 22 The issuance of a copyright (from the Office of the Librarian of Congress) differs from the granting of a patent in that it is made practically as a matter of course. Copyrights are issued covering books, maps, charts, paintings, drawings, music, photographs, statues, plays, etc. 184 EQUITY AND ITS REMEDIES Globe Newspaper Co. v. Walker, 210 U. S. 356 (discussion of remedies). Unpublished Manuscripts, Photographs, Letters, etc. The state courts have jurisdiction to restrain the unauthorized publication of unpublished manuscripts, business data, photographs, plays or works of art. Such publication is an invasion of the author's literary property at common law. Tompkins v. Halleck, 133 Mass. 32 (play). Pollard v. Photographic Co., L. R. 40 Ch. D. 345 (photograph). F. W. Dodge Co. v. Construction Information Co., 183 Mass. 62 (commercial informa- tion). Ferris v. Frohman, 223 U. S. 424 (play). In some jurisdictions a right of privacy 23 is recog- nized, in accordance with which one has a right not to have his portrait published in any form without his consent, although no property right is involved. Corliss v. E. W. Walker Co., 64 Fed. Rep. 280. Pavesich v. N. E. Life Ins. Co., 122 Ga. 190. The writer of the ordinary letter, or after his death his personal representative, has such a proprietary right in the publication or non-publication of it as to be able to enjoin its publication by the recipient. The latter has title to the letter itself, however, and will not be enjoined from selling it. Baker v. Libbie, 210 Mass. 599 (letters of Mrs. Eddy). Trade marks. A trademark is a peculiar name or device by which 28 For an interesting discussion of this right of privacy, see an article by Messrs. Warren and Brandeis in Harvard Law Review for Sec. 1890. REPARATION AND PREVENTION OF TORTS 185 a person dealing in an article designates it and of which he has exclusive use. An infringement of it is a wrongful invasion of a right at common law. The continued violation of it will be enjoined in equity. Weener v. Brayton, 152 Mass. 101. . Frank v. Sleeper, 150 Mass. 583 ("NS" as a cigar trademark). The wrong which equity redresses is 24 the palming off of one's goods as and for another's, the getting of another's business or the injuring of his business reputation by unfair means and perhaps the defraud- ing of the public. Chadwick v. Covell, 151 Mass. 190. Weener v. Brayton, 152 Mass. 101. To be entitled to the protection of the court for a trademark one must show that he has adopted the mark for some article of traffic and that such article has been placed on the market. 28 Weener v. Brayton, 152 Mass. 101. The adoption and use of a trademark creates a right under the common law. Registration affords prima facie evidence of its adoption and use. The owner's right may be protected in the state courts 26 whether the mark is registered in the United States 24 This statement of the law is based on the opinion of Holmes, J. in Chadwick v. Covell, 151 Mass. 190. He says further, "Some judges, noticeably Lord Westbury, have preferred to rest the pro- tection to trade marks on the notion of property rather than fraud, but he means no more than that the deception which equity will prevent need not have been intended." The Massachusetts cases have, however, for the most part proceeded on the theory that trade- marks were property. See Warren v. Warren Thread Co., 134 Mass. 247. 25 The temporary disuse of a mark does not lose its owner his rights. Burt v. Tucker, 178 Mass. 493. 26 The federal courts do not have sole jurisdiction as in patents. The right of Congress to legislate in the matter of trademarks falls under its power to "regulate commerce." 186 EQUITY AND ITS REMEDIES Patent Office" (or, in Massachusetts, with the Secre- tary of the Commonwealth 28 ) or is unregistered. Traiser v. Doty Cigar Co., 198 Mass. 327 ("Peep In" cigars held to infringe "Pip- pin." Both registered with U. S.) Apart from statute, 29 only one who in some form carries on business, may have a trademark that will be protected. Frank v. Sleeper, 150 Mass. 583 (cigar jobber). Nelson v. Winchell & Co., 203 Mass. 75. Weener v. Brayton, 152 Mass. 101 (a labor union does not carry on business). A word of territorial description or a common noun descriptive of the product is not a good trademark. Standard Paint Co. v. Trinidad Asphalt Mfg. Co., 220 U. S. 446 ("Ruberoid" and "Rubbero" roofing). American Waltham Watch Co. v. U. S. Watch Co., 173 Mass. 85 ("Waltham Watch"). Oilman v. Hunnewell, 122 Mass. 139. A word which might become a valid trademark when applied to an unpatented article may not be so when applied to a patented article. The right to the exclusive use of such a word expires with the patent, even though the word be registered as a trademark. Dover Stamping Co. v. Fellows, 163 Mass. 191 ("Dover" egg-beaters). Marshall Engine Co. v. New Marshall Engine Co., 203 Mass. 410. " See U. S. Stats. 1905, ch. 592. 28 See Mass. Rev. Laws, ch. 72, sec. 7. 29 See for example Mass. Rev. Laws, ch. 72; also Mass. St. 1904, ch. 235; St. 1907, ch. 232; St. 1909, ch. 514, sees. 31, 32. REPARATION AND PREVENTION OF TORTS 187 The owner of a trademark not purely personal 30 may assign it, in connection with the sale of good will, or may grant a limited interest therein by way of license. Courts of equity will recognize such interests, even though the effect may be to deprive the assignor of the right thereafter to use his name in a business way. Frank v. Sleeper, 150 Mass. 583 (NS Cigars). Herring-Hall-Marvin Safe Co. v. Hall's Safe Co., 208 U. S. 554. Warren v. Warren Thread Co., 134 Mass. 247 (passed to insolvency assignee). Burt v. Tucker, 178 Mass. 493. Hoxie v. Chaney, 143 Mass. 592. But trademarks which may be transferred with the sale of a going business are not capable of being assigned, apart from the business, so as to give the assignee an exclusive right to the use of them. Chadwick v. Covell, 151 Mass. 190 ("Dr. Spencer's Queen of Pain," etc.) Covell v. Chadwick, 153 Mass. 263 ("Dr. Spencer's Queen of Pain," etc.) A plaintiff will not be afforded a remedy in equity if his trademark contains misrepresentations calcu- lated to deceive purchasers; but merely collateral misrepresentations will not be a bar to relief. C. E. Worden & Co. v. California Fig Syrup Co., 187 U. S. 516 ("Syrup of Figs"). Nelson v. Winchell & Co., 203 Mass. 75. Jacobs v. Beecham, 221 U. S. 263 (use of the word "patent" medicine when it is not patented is not such a fraud as to bar relief. 80 But a trade name representing the skill of the individual using it is not assignable. Messer v . The Fadettes, 168 Mass. 140. 188 EQUITY AND ITS REMEDIES Trade Names. Unfair Competition. The protection of equity is not confined to technical trademarks. Words incapable of becoming trade- marks may become so associated with a particular kind of goods or with the specific product of a certain manufacturer that they acquire a secondary meaning. Under such circumstances, the use of them by another may be restrained as unfair competition (except in certain cases where such use is permitted when accom- panied by a statement showing that the article is not of the plaintiff's manufacture). The gist of such an action is not the use of particular words, but the appropriation of the plaintiff's business. Jacobs v. Beecham, 221 U. S. 263 ("Beecham's Pills"). C. A. Briggs Co. v. National Wafer Co., 215 Mass. 100 ("Boston wafers"). American Waltham Watch Co. v. U. S. Watch Co., 173 Mass. 85 ("Waltham Watch"). Grocers' Supply Co. v. Dupuis, 219 Mass. 576 ("Kormon 31 water," etc.) To obtain equitable relief because of unfair com- petition the plaintiff is not required to prove that customers have actually been deceived, but simply that they are likely to be deceived. And it is im- material that customers are indifferent whether they get the plaintiff's or the defendant's product. Reading Stove Works v. S. M. Howes Co., 201 Mass. 437. In the absence of a patent, or after the expiration of one, the freedom to manufacture an article similar to another's will not ordinarily be cut down under the guise of preventing unfair competition. 81 Quaere, as to the advantage, if any, derived from registering a trade name. REPARATION AND PREVENTION OF TORTS 189 Flagg Manufacturing Co. v. Holway, 178 Mass. 83 (zithers).' Dover Stamping Co. v. Fellows, 163 Mass. 191. But if the plaintiff has acquired a valuable reputa- tion in connection with the size, shape and condition of a certain article manufactured by him, or the package in which it is contained, the defendant may not, by adopting this combination, mislead the public to the plaintiff's detriment and his own advantage. If necessary for him to adopt the combination, it should be accompanied by a designation or statement plainly showing that his article is not of the plain- tiff's manufacture. N. E. Awl and Needle Co. v. Maryborough Awl & Needle Co., 168 Mass. 154 (pack- ages of awls). Geo. G. Fox Co. v. Glynn, 191 Mass. 344 (loaves of bread). Geo. G. Fox Co. v. Hathaway, 199 Mass. 99 (loaves of bread). Geo. G. Fox Co. v. Best Baking Co., 209 Mass. 251 (loaves of bread). Coats v. Merrick Thread Co., 149 U. S. 562 (thread). Trade Secrets. Although one who is the discoverer or inventor of formulae or secret processes of manufacture has no exclusive right as against the public, he may be pro- tected by injunction from the disclosure of these by one wrongfully obtaining possession of them, whether such disclosure is in violation of an express contract or the breach of confidence reposed. Peabody v. Norfolk, 98 Mass. 452 (machinery secrets intrusted to engineer). Noble v. J. Burnett Co., 208 Mass. 75 (formulae). 190 EQUITY AND ITS REMEDIES And generally an employer is entitled to equitable relief where an employee has made use of information which has come to him in his employment, to the detriment of the employer. Essex Trust Co. v. Enwright, 214 Mass. 507. Am. Circular Loom Co. v. Wilson, 198 Mass. 182 (constructive trust in patent assign- ment taken by employee in breach of duty). But the invention of a machine by an employee raises no implied agreement to assign the patent thereon to his employer; although under some con- ditions the employer may have a "shop right" in machines developed in his shop. American Circular Loom Co. v. Wilson, 198 Mass. 182. American Stay Co. v. Delaney, 32 211 Mass. 229. Accounting for Infringement, etc. The relief afforded in cases of trademark and p tent infringement and of unfair competition, usually in- cludes the right to an accounting for profits. Nelson v. Winchell, 203 Mass. 75 (with rules for such accounting). Forster Mfg. Co. v. Cutter-Tower Co., 215 Mass. 136. But where the wrongful use of a trademark or name has been accidental or without intent to defraud the plaintiff or to deceive the public, there is no account- ing for profits, though there may be an injunction. Regis v. Jaynes, 191 Mass. 245. In cases where profits are allowed the plaintiff, it 82 In this case the bill was retained to assess the damages which the employer had sustained from the breach of the defendant's con- tract to give all his time to the plaintiff (his employer). REPARATION AND PREVENTION OF TORTS 191 is not always easy to determine the elements entering into such profits. Whether or not there should be a deduction for the overhead expenses of the defendant depends upon whether or not such expenses have been increased by the transactions complained of. C. A. Briggs Co. v. National Wafer Co., 215 Mass. 100. Nelson v. Winchell & Co. 203 Mass. 75. Regis v. Jaynes, 191 Mass. 245. In addition to profits, the plaintiff may have dam- ages in appropriate cases; but such damages must arise from elements not satisfied by an accounting for the profits. Nelson v. Winchell & Co. 203 Mass. 75. Forster Mfg. Co. v. Cutter Tower Co., 215 Mass. 136. E. INTERFERENCE WITH BUSINESS (OR EMPLOYMENT), INTERFERENCE WITH CONTRACT. 33 At common law it is the right of every citizen to pursue his calling, whether of labor or business, as he in his judgment sees fit, so long as in so doing he does not violate his duties to others and to the public. Interference with his right is a tort and in proper cases, apart from statute, will be enjoined. Article I, Massachusetts Declaration of Rights. Carew v. Rutherford, 106 Mass. 1, at 14 (tort for extortion in obtaining money under threat of interfering with business). Pickett v. Walsh, 192 Mass. 572, at 581. Willcutt & Sons Co. v. Driscoll, 200 Mass. 110, at 117 (calling the right that of a "reasonably free labor market"). Vegelahn v. Guntner, 167 Mass. 92. McGurk v. Cronenwett, 199 Mass. 457 83 See note 33 on page 192. 192 EQUITY AND ITS REMEDIES (malicious interference with known con- tract; tort). But see Mass. St. 1914, ch. 778. See Mass. Rev. Laws, ch. 106, sec. 12" (a crime to make non-membership in union a prerequisite of employment). Intentional interference with the right of an in- dividual to dispose of his labor at his will or to have 88 This chapter was written prior to the passage in Massachusetts of St. 1914, ch. 778, and contains a summary of the principles care- fully worked out by the Massachusetts court through a series of years. The statute will radically change the application of some of them to cases arising in industrial disputes. But as it will require much judicial interpretation before its application is fully known, the author has decided to allow this summary of the law, as it stood at the time the statute was passed, to remain as written. The application of every proposition set forth in this section should be meas- ured in Massachusetts by the limitation prescribed in the act of 19 14, the first two sections of which are: "Section 1. It shall not be unlawful for persons employed or seek- ing employment to enter into any arrangements, agreements or combinations with the view of lessening the hours of labor or of increasing their wages or bettering their condition; and no restrain- ing order or injunction shall be granted by any court of the common- wealth or by any judge thereof in any case between an employer and employees, or between employers and employees, or between persons employed and persons seeking employment, or involving or growing out of a dispute concerning terms or conditions of employ- ment, or any act or acts done in pursuance thereof, unless such order or injunction be necessary to prevent irreparable injury to property or to a property right of the party making the application, for which there is no adequate remedy at law; and such property or property right shall be particularly described in the application, which shall be sworn to by the applicant or by his agent or attorney. "Section 2. In construing this act, the right to enter into the rela- tion of employer and employee, to change that relation, and to assume and create a new relation for employer and employee, and to perform and carry on business in such relation with any person in any place, or to do work and labor as an employee, shall be held and construed to be a personal and not a property right. In all cases involving the violation of the contract of employment either by the employee or employer where no irreparable damage is about to be committed upon the property or property right of either, no injunction shall be granted but the parties shall be left to their remedy at law." 34 The constitutionality of this statute may be questionable. REPARATION AND PREVENTION OF TORTS 193 the benefit of a contract is malice at law (even if from good motives and without express malice), unless such interference is by one acting in the exercise of an equal or superior right which comes in contact with the other, as in fair competition. Berry v. Donovan, 188 Mass. 353 (tort, brought by an operative for interference with his contract for employment). Hoban v. Dempsey, 217 Mass. 166 (fair com- petition between unions). 35 Burnham v. Dowd, 217 Mass. 351. Malicious interference with a contract of another 36 is a form of trespass on the case and is, apart from statute, ground for injunctive relief and damages, whether the interference is by an individual or by a combination of conspiring persons. N. E. Cement Gun Co., v. McGivern, 218 Mass. 198 (injunctive relief and damages to business; but no damages in this case for breach of contract because plaintiff assented to breach). Beekman v. Marsters, 195 Mass. 205, at 212 (a single defendant; not an industrial case). Reynolds v. Davis, 198 Mass. 294, at 298. Berry v. Donovan, 188 Mass. 353, at 357 (tort). Aberthaw Construction Co. v. Cameron, 194 Mass. 208 (a "conspiracy" resulting in a breach of contract). Walker v. Cronin, 107 Mass. 555 (tort; single defendant). 85 In this case, Rugg, C. J., speaks of a boycott as having for an essential element intentional injury to somebody. 86 But if the plaintiff has no contract, he may lack the "property interest" upon which to predicate equitable relief. Worthington v. Waring, 157 Mass. 421; Hoban v. Dempsey, 217 Mass. 166. And eee Mass. St. 1914, ch. 778. 194 EQUITY AND ITS REMEDIES Loughery v. Huxford, 206 Mass. 324 (tort case). But see Mass. St. 1914, ch. 778. The fact that a contract is terminable at will does not affect the right to recover for unlawful inter- ference with the contract. It does, however, affect the amount of damages. Berry v. Donovan, 188 Mass. 353. Irrespective of the presence of a contract, inten- tional wilful acts, 37 calculated to cause damage to the plaintiff's lawful business or calling, done with unjust purpose to cause damage, with actual resulting damage, may, apart from statute, be enjoined. Davis v. N. E. Railway Pub. Co., 203 Mass. 470 (causing competitors to be omitted from directory of expressmen). Walker v. Cronin, 107 Mass. 555 (malici- ously 38 inducing another's workman to leave). Plant v. Woods, 176 Mass. 492 (between two unions; interference with the employment of plaintiffs by intimidating the employer). Moran v. Dunphy, 177 Mass. 485 (tort). But see Holbrook v. Morrison, 214 Mass. 209 (suit by real estate dealer to restrain neighbor from advertising her home for sale to "colored people." No relief on facts). Competition is no justification for interference with contract; it may justify reasonable interference with 87 Such an act may be the strike itself in a case where the purpose of the strike is unlawful, or any one of many acts done in pursuance of a strike, whether the purpose of the strike is lawful or unlawful. See Martell v. White, 185 Mass. 255. But see Mass. St. 1914, ch. 778. 88 In this case the filing of a demurrer was an admission of the absence of "justifiable cause." REPARATION AND PREVENTION OF TORTS 195 the business of another. 89 Beekman v. Marsters, 195 Mass. 205, at 212 (competition between tourist agencies). Walker v. Cronin, 107 Mass. 555. Hoban v. Dempsey, 217 Mass. 166. A combination among persons (as in a labor union) merely to regulate their own conduct, is within allow- able competition 40 and is lawful, although others may be materially affected thereby. Snow v. Wheeler, 113 Mass. 179 (Order of Knights of St. Crispin not a trust for an illegal purpose). Mass. St. 1914, ch. 778. So the combining of employed persons in a strike is lawful in purpose if for a direct trade advantage to the strikers. Vegelahn v. Guntner, 167 Mass. 92. Willcut & Sons Co. v. Driscoll, 200 Mass. 110, at 1 14 (higher wages and a shorter day are such trade advantages). 39 "Everyone has a right to enjoy the fruits and advantages of his own enterprise, industry, skill and credit. He has no right to be protected against competition; but he has a right to be free from malicious and wanton interference, disturbance and annoyance. If disturbance and loss come as a result of competition or the exer- cise of the rights of others, it is damnum absque injuria, unless some superior right by contract or otherwise is interfered with; but if they come from the merely wanton or malicious acts of others with- out the justification of competition or the service of any interest or lawful purpose, it then stands upon a different footing." Walker . Cronin, 107 Mass. 555. 40 Although the struggle between employers and the employed in the attempt of each class to obtain as large a share as possible of the income from their combined efforts in the industrial field is in a strict sense hardly competition, yet, as between themselves, the principle which warrants competition permits also reasonable efforts, of a proper kind, which have a direct tendency to benefit one party in his business at the expense of the other. Knowlton, C. J., in Berry v. Donovan, 188 Mass. 353. This struggle between rival unions is called competition in Hoban v. Dempsey, 217 Mass. 166. 196 EQUITY AND ITS REMEDIES Minasian v. Osborne, 210 Mass. 250 (to pre- vent cross-handed lasting in shoe factory) . Lawful coercion and compulsion by strike are limited to strikes against persons with whom the organization striking has a trade dispute, and do not extend, unless under statutes, to sympathetic strikes or boycotts. The purpose of sympathetic strikes is unlawful. Pickett v. Walsh, 192 Mass. 572 (a sym- pathetic strike, 41 unlawful in purpose). N. E. Cement Gun Co. v. McGivern, 218 Mass. 198 (boycott; sympathetic strike). The purpose of a strike is unlawful (apart from statute), 42 1. Where employees seek to coerce and intimidate employers to discharge other workmen by strike or threat of strike, thereby interfering with the employment of the other workmen. Plant v. Woods, 176 Mass. 492. De Minico v. Craig, 207 Mass. 593 (foreman distasteful to strikers). 2. Where the strikers seek thereby to force on their employer a closed shop, or to compel him to submit to a delegate body of his employees and those of other concerns, all questions be- tween him and his employees. Reynolds v. Davis, 198 Mass. 294. 41 In other words, a strike against A, with whom the strikers have DO dispute, to compel A to force B to yield to the strikers' demands that B discharge C, is an unjustifiable interference with the right of C to enforce his calling, if he is a workman, as he thinks best (Pickett v. Walsh, supra), or with the right of C to transact his business, il he is an employer, as he thinks beet. (Secondary boycott.) Aber- thaw Construction Co. v. Cameron, 194 Mass. 208 (a strike for the purpose of inducing a breach of plaintiff's contract for the erection of Christian Science Church, for the purpose of compelling it to employ union men). N. E. Cement Gun Co. v. McGivern, 218 Mass. 198. See Mass. St. 1914, ch. 778. REPARATION AND PREVENTION OF TORTS 197 3. Where the strikers seek to enforce the dis- charge of a fellow workman for an arbitrary cause such as non-membership in a union. Pickett v. Walsh, 192 Mass. 572. Whether or not a strike is lawful in purpose is a question of law. De Minico v. Craig, 207 Mass. 593. What is lawful for an individual is not necessarily lawful for a combination 43 of individuals. The result of the conspiracy may be unlawful. Carew v. Rutherford, 106 Mass. 1. Pickett v. Walsh, 192 Mass. 572. Mogul Steamship Co. v. McGregor, 23 Q. B. D. 598. Aberthaw Cons. Co. v. Cameron, 194 Mass. 208 (see decree against conspiring). Martell v. White, 185 Mass. 255 (in this case the primary boycott was lawful but the coercive fines for carrying it out were not). Gompers v. Buck's Stove & Range Co., 221 U. S. 418. Burnham v. Dowd, 217 Mass. 351 (boycott). But see Mass. St. 1914, ch. 778. A combination of persons under contract, not to work for persons with whom they have a contract, is, apart from statute, an unlawful interference with business, although each may break his own contract without thereby committing a tort. Reynolds v. Davis, 198 Mass. 294 (Lynn building trades case, where open shop rules were posted). 43 It is suggested in Carew v. Rutherford, that one person may at the theatre express disapprobation of an actor, but if several per- sons combine to employ others to hiss, etc., the conduct may become actionable. 198 EQUITY AND ITS REMEDIES So, although a member of a union seeking employ- ment may lawfully offer such terms as to result in another being discharged and himself employed, the interference by a combination of persons to obtain the discharge of a workman under contract, because he refuses to comply with their wishes for their advantage in some matter in which he has a right to act independently (as in this case, by refusing to join a certain union), is tortious. Berry v. Donovan, 188 Mass. 353 (tort) (The foregoing is the case applicable when a manufacturer signs an agreement with a union that he will employ only union help and then discharges his non-union men). But a contract between employers and a labor union that the former will employ only members of that union where these are available, is not unlawful towards members of another union where the incite- ments are those of business advantage only. Hoban v. Dempsey, 217 Mass. 166. 44 What acts will be enjoined. 46 Even though a strike be lawful in purpose, the acts done in furtherance of it may be tortious and may be enjoined. 44 In this case, the court says the Sherman Anti-Trust Act was not made an issue. 45 The adequacy of the legal remedy in these cases has caused some confusion in Massachusetts. The rights of persons formerly em- ployed were said to be personal rights, not property rights, and without precedent for their enforcement in equity, in the case of a combination among employers of labor not to employ certain operatives who had struck in one of their shops, and the putting of the names of such persons on a blacklist. Worthington v. Waring, 157 Mass. 421. But see a discussion of Worthington v. Waring in Burnham v. Dowd, 217 Mass. 351. See also in Fairbanks v. Mc- Donald, 219 Mass. 291, the statement of the court that upon the point of refusing relief because the plaintiff's right was not a prop- erty right, Worthington v. Waring is now doubted as an authority. And see Mass. St. 1914, ch. 778, which purports to make the con- tract of employment a personal and not a property right. REPARATION AND PREVENTION OF TORTS 199 In a strike for an unlawful purpose, all acts, peaceful or otherwise, in furtherance of the strike may, except as otherwise provided by statute, be enjoined, such as the conspiracy, 46 the payment of strike benefits, and the putting of the employer on an unfair list, 47 as well as the various acts, infra. 48 In a lawful strike acts amounting to interference with business by coercion of employees, trespass to property, personal violence, or private nuisance, may, except as otherwise provided by statute, be enjoined. So the levying of fines on members and the threaten- ing to do so as a means of coercing them into remaining out, a matter which they have a right to decide for themselves, is, apart from statute, unlawful. Willcutt & Sons Co. v. Driscoll, 200 Mass. 110 (following Martell v. White, 185 Mass. 255, where a levied fine upon a member of a granite association for trading with a given concern was held unjustifiable). Picketing has been enjoined when part of a general scheme or of a conspiracy to interfere with business by coercion. Picketing may, perhaps, be lawful 49 if orderly and peaceable, but if there is an attempt in combination, by means of force, threats or intimida- tion, to coerce employees or those who wish to become so, this becomes unlawful, both as to employers and employees. Vegelahn v. Guntner, 167 Mass. 92. But persuasion not amounting to intimidation is lawful, and perhaps social ostracism, if without threat in business point of view. Willcut & Sons Co. v. Driscoll, 200 Mass. 110. See Mass. St. 1913, ch. 690. 46 Aberthaw Cons. Co. v. Cameron, 194 Mass. 208. 47 See Reynolds v. Davis, supra. 48 See also long decree in Plant v. Woods, 176 Mass. 492. 49 See mention of lawful persuasion in Plant v. Woods. See also Mass. St. 1913, ch. 690, defining and permitting peaceful persuasion. 200 EQUITY AND ITS REMEDIES So parading with a placard warning workmen away, if part of a general scheme to coerce, has been enjoined as unlawful. 60 Sherry v. Perkins, 147 Mass. 212. But see effect of Mass. St. 1913, ch. 690," and also of Mass. St. 1914, ch. 778. In the coercion of workmen actual force is not a necessary element. A suggestion of force resulting in coercion of persons of ordinary courage by forcing them to a course they would not ordinarily pursue, is sufficient, and this is true whether such persons are now in the plaintiff's employ, with or without contract, or about to enter his employ. Vegelahn v. Guntner,. 167 Mass. 92. Damages for loss already sustained and for the prospect that "inability to secure work may extend over a substantial period of time" are not inconsistent with an injunction in the same decree. Fairbanks v. McDonald, 219 Mass. 291. The public nuisance arisi ng from the blocking of an interstate highway, a railroad, may be made the basis 50 Before the ground of interference in labor cases was clearly established in Massachusetts, picketing and placarding were said to be akin to private nuisances. Sherry v. Perkins, supra (placarding) Vegelahn v. Guntner, supra (picketing). But see M. Steinert & Sons Co. v. Tagen, 207 Mass. 394, in which it was said that driving a banner about during a strike might be lawful, whereas the same act after the strike was over might not be. 51 This act reads as follows: "No person shall be punished criminally, or held liable or answer- able in any action at law or in equity, for persuading or attempt- ing to persuade by printing or otherwise any other person to do any- thing, or to pursue any line of conduct not unlawful or actionable cr in violation of any marital or other legal duty, unless such per- suasion or attempt to persuade is accompanied by injury or threat of injury to the person, property, business or occupation of the person persuaded or attempted to be persuaded, or by disorder or other unlawful conduct on the part of the person persuading or at- tempting to persuade, or is a part of an unlawful or actionable conspiracy." REPARATION AND PREVENTION OF TORTS 201 of interference in a suit by the Federal Attorney General. In re Debs, 158 U. S. 564. Parties to suit. If a union is unincorporated, it should not be made plaintiff or defendant. 52 The words "to your com- plainant unknown" should not be used, but persons should be named as proper representatives of a class, 53 with the allegation that the members are too numerous to be joined as parties. Reynolds v. Davis, 198 Mass. 294. Pickett v. Walsh, 192 Mass. 572. Hoban v. Dempsey, 217 Mass. 166. A corporation may be enjoined. Aberthaw Construction Co. v. Cameron, 194 Mass. 208 (where a board of directors of a church was enjoined as a "co-con- spirator"). 52 A union was made defendant in Vegelahn v. Guntner, supra, but this fact escaped attention (see Pickett v. Walsh at 590). 53 Multifariousness and migjoinder of plaintiffs should be avoided. In Reynolds v. Davis, various firms doing different kinds of business were joined as plaintiffs, apparently improperly, but the court calls attention to the fact that no objection was raised. See also Pickett v. Walsh, supra. 202 EQUITY AND ITS REMEDIES CHAPTER X. PECUNIARY RELIEF IN EQUITY. A. ACCOUNTING. B. EXONERATION. C. CONTRIBUTION. D. SUBROGATION. E. MARSHALING. A. ACCOUNTING. Equity has jurisdiction in accounting 1. Where there is a fiduciary relation, 1 Hewitt v. Hayes, 205 Mass. 356 (rules for following trust funds; or cestui may prove in bankruptcy). Newell v. Hadley, 206 Mass. 335 (leading case on mingled trust funds). Hutchins v. Page, 204 Mass. 284 (partner- ship). Moore v. Rawson, 199 Mass. 493 (partner- ship, including good will). Campbell v. Cook, 193 Mass. 251 (agency to manage property under power of attorney). Rolikatis v. Lovett, 213 Mass. 545 (attorney and client). Falardeau v. Washburn, 199 Mass. 363 (attorney and client). 1 In Massachusetts, an action for money had and received will also lie in a simple case of money held by the defendant to which the plaintiff has an equitable right. Cole v. Bates, 186 Mass. 584. PECUNIARY RELIEF IN EQUITY 203 Whitman v. Mclntyre, 199 Mass. 436 (by assignor against assignee for benefit of creditors). O'Brien v. McNeil, 199 Mass. 164 (mort- gagor against mortgagee in possession; rules governing; interest, etc.). Atty. Gen'l v. Bedard, 218 Mass. 378 (in- formation against managers of charitable fund for support of strikers' families). Von Arnim v. American Tube Works, 188 Mass. 515 (minority stockholder may require accounting of officers who are misusing corporation 2 funds). Quinn v. Hayden, 219 Mass. 343 (a joint enterprise) . Edwards v. Willey, 219 Mass. 443 (one furnished capital; other labor, in joint enterprise; no interest allowed former). The ordinary relation of creditor and debtor does not call for equitable accounting, even though trans- actions are numerous and plaintiff does not know them all, unless there is great complication. 3 Brown v. Corey, 191 Mass. 189 (broker and customer) . Peters v. Equitable Life Ass. Co., 196 Mass. 143. 2. Where there is great complication,* Mass. R. L., ch. 159, sec. 3, cl. 6 (accounts 3 The rule in such cases is that application should first be made to the corporation to bring the bill; but in some instances this is unnecessary. ID such case the corporation should be made a party defendant and relief should be for the benefit of the corporation. See discussion in Chapter VIII, Part B, supra, also Pomeroy, sec. 1095. 8 The bill should always allege the accounts to be complicated, where there is no fiduciary relation. * See note 4 on page 204. 204 EQUITY AND ITS REMEDIES that "cannot be conveniently and prop- erly adjusted and settled in an action at law"). Pierce v. Equitable Life Ass. Soc., 145 Mass. 56 (tontine insurance policy). Hallett v. Cumston, 110 Mass. 29. Thurston v. Hamblin, 199 Mass. 151 (to ascertain net profits; inventor against manufacturer). This jurisdiction is due not to absence of common law remedy but to its inadequacy 5 and inconvenience. 3. Where the accounting is incidental to some other right of relief. Sunter v. Sunter, 198 Mass. 137 (principles applied in constructive trusts). Clark v. Storey, 208 Mass. 36 (bill to redeem from fraudulent foreclosure; defendants charged with profits, and allowed com- pensation). Noble v. Jos. Burnett Co., 208 Mass. 75 (incidental to injunction against use of formulae). Reading Stove Works v. S. M. Howes Co., 201 Mass. 437 (for profits of trade name infringement). Nelson v. Winchell & Co., 203 Mass. 75 (trademark; rules for determining differ- ence between damages and profits). McKay v. Coolidge, 218 Mass. 65 (judgment In such casea, the inconvenience of the defendant's answering in this state will be considered if the plaintiff is a non-resident, but not where he is a resident. Peters v. Eq. Life Ass. Co., 196 Mass. 143. 5 Much of equity's control of estates and the winding up of cor porations was a development from its superior procedure in account ing. PECUNIARY RELIEF IN EQUITY 205 creditor in tort suit, to collect from deceased defendant's legatees). When an account is of such a nature that an action may be brought at law or in equity, the court which first acquires jurisdiction will decide the case. Nash v. McCathern, 183 Mass. 345. In accounting the following rules are observed as to the application of payments, where there are several debts between the parties. 1. Money paid to a creditor must be appropriated to the discharge of such debt, if any, as the debtor specifies at the time of payment. In some cases his direction has been inferred from circumstances. Reed v. Boardman, 20 Pick. 441. Gay v. Gay, 5 Allen 157. 2. If the debtor does not specify, expressly or by implication, the creditor may apply the payment to any account, except an illegal one, before action is brought. Rohan v. Hanson, 11 Gush. 44 (illegal one). He may even apply it to a debt barred by a statute of limitations, 6 or not enforceable because of the Statute of Frauds. Haynes v. Nice, 100 Mass. 327 (Statute of Frauds). 3. If neither party appropriates the payment to a specific debt, equity will appropriate the credits toward the discharge of debits in the order of their time, excluding, however, those barred by a statute of limitations. This is called the Rule in Clayton's Case. Crompton v. Pratt, 105 Mass. 255. 8 But he may not by such part payment remove the bar of a statute of limitations as to the balance. 206 EQUITY AND ITS REMEDIES Newell v. Hadley, 206 Mass. 335 (rule stated as between cestuis and distinguished from facts here). Hewitt v. Hayes, 205 Mass. 356 (modifica- tion of rule). B. EXONERATION. Whenever one pays a debt 7 for which another is primarily liable, he is entitled to indemnity from that person. There is usually relief at law under an express or implied contract. Tillotson v. Rose, 11 Met. 299 (surety, who paid a note). Rice v. Southgate, 16 Gray 142. If he has paid, he may recover only what he has properly paid, with interest and costs. He may compromise the debt before it is due, and then sue on maturity. Hayden v. Cabot, 17 Mass. 169. Tillotson v. Rose, 11 Met. 299. In certain cases he may, after he is liable and before he has been sued, compel in equity the principal to settle the debt. This is called exoneration. Minot, Pet'r, 164 Mass. 38. Wooldridge v. Norris, L. R. 6 Eq. 410. Rice v. Southgate, 16 Gray 142. Ascherson v. Tredegar Dry, etc. Co., (1909) L. R. 2 Ch. 404. Furber v. Dane, 203 Mass. 108. Pomeroy, sec. 1417. Brandt Sur. and Guar., sec. 243; sec. 261. But he may only do this where he admits his own secondary liability if the principal does not pay. 7 This principle does not apply to ex delicto claims. PECUNIARY RELIEF IN EQUITY 207 Getting v. Otis Elevator Co., 214 Mass. 294. C. CONTRIBUTION. Where one of several persons who have joint, or joint and several, contract obligations, or who are co-sureties, has paid more than his proportionate share of the obligation, he is entitled to recover such excess from the others liable with him. 8 Wolmershausen t>. Gullick, L. R. (1893) 2 Ch. 514 (history and review of English cases). Weeks v. Parsons, 176 Mass. 570 (between accommodation indorsers). Ray v. Powers, 134 Mass. 22 (members of a club). Barnes v. Boardman, 152 Mass. 391 (be- tween life tenant and reversioner). Newcomb v. Gibson, 127 Mass. 396 (sureties). Tomlinson v. Bury, 145 Mass. 346 (specific legatee against general legatees). Putnam v. Misochi, 189 Mass. 421 (stock- holders). Labbe v. Bernard, 196 Mass. 551 (surety who is also assignee of the contract assured must share with co-surety all advantage from contract). Where in a will property specifically 9 bequeathed is appropriated to pay debts or to satisfy the claims 8 While such relief msy be had in assumpsit on the theory of implied contract, it is not always adequate, as, for example, where several co-sureties must be sued separately or where one is insolvent, at law each is liable for an aliquot part (Griffen v. Kelleher, 132 Mass. 82) ; in equity, ratably, to the exclusion of insolvent and non-resident sureties. Hendrick v. Whittemore, 105 Mass. 23. Whitman . Porter, 107 Mass. 522. Gary v. Holmes, 16 Gray 127. 9 A specific legacy is one which separates and distinguishes the property bequeathed from the other property of the testator, so that it can be identified. 208 EQUITY AND ITS REMEDIES of testator's widow who has waived provisions a legatee 10 is entitled to contribution from other lega- tees under the will. Tomlinson v. Bury, 145 Mass. 346 (bill for contribution). See Mass. Rev. Laws, ch. 135, sec. 25 et seq. Where specific legacies must themselves contribute, they do so proportionally, except where the legacy is in lieu of a claim or debt, or the terms of the will or the position of a legatee otherwise require. Farnum v. Bascom, 122 Mass. 282. A surety who has paid a debt is entitled to share in all security taken for indemnity by a co-surety, and if a surety is released without the consent of a co-surety, the co-surety is relieved to the extent of the security surrendered. Guild v. Butler, 127 Mass. 386. Newcomb v. Gibson, 127 Mass. 396. But a mere renewal of a note by the maker does not give a co-surety any rights to be relieved. North Ave. Sav. Bank v. Hayes, 188 Mass. 135. In order to have contribution between sureties, the parties must be co-sureties. Longley v. Griggs, 10 Pick. 121. Among the many defenses to an action for con- tribution are that the plaintiff surety has collateral or has paid with funds of principal debtor; that time has been given the principal debtor or a co-surety without the defendant surety's consent; that the principal debtor or a co-surety has been released by the creditor or by the plaintiff surety; that the 10 This and the succeeding paragraph apply as well to devisees as to legatees. PECUNIARY RELIEF IN EQUITY 209 plaintiff surety has released or lost collateral; that the defendant surety is bankrupt or has a set-off against the plaintiff or is within the statute of lim- itations; or that the plaintiff surety has by his fraud contributed to the default of the principal. Spencer on Suretyship, sec. 158. In an action for contribution in some jurisdictions, it is a defense that the plaintiff surety paid after the claim of the creditor against him was barred by a statute of limitations, but no defense that the statute has run as against the creditor, in favor of the defendant surety, if it has not in favor of the plaintiff surety. Spencer on Suretyship, sec. 165. D. SUBROGATION. Whenever one not a volunteer, for the protection of his own rights, pays a debt for which another is primarily liable, he is in equity subrogated to the creditor's rights, i. e. he is entitled to enforce the right the creditor had against the debtor, including the application of all the securities the creditor has from the debtor. n Stetson v. Moulton, 140 Mass. 597. Blake v. Traders' Bank, 145 Mass. 13. North Nat'l Bank v. Hamlin, 125 Mass. 506 (negotiable paper, paid by indorser, kept alive). 11 The right of subrogation is of equitable origin. Skinner v. Tirrell, 159 Mass. 474. In most cases, of course, a surety who has paid the debt may have indemnity in a suit at law, but there are cases where his only adequate remedy is by proceeding to enforce the rights of the creditor against the principal debtor (which, though gone at law, are kept alive for certain purposes in equUy). For example, where the surety's right against the debtor is barred by a statute of limitations, but the creditor's right, being on a sealed in- strument, is not; or where the surety's right against the debtor is barred by a discharge in bankruptcy, but the creditor's right, being on a fiduciary debt, is not. Grower v. Grower, 29 Grattan 280. 210 EQUITY AND ITS REMEDIES Labbe v. Bernard, 196 Mass. 551 (surety, as assignee of principal, finished a con- tract). Lamb v. Montague, 112 Mass. 352 (second mortgagee who pays first mortgage). Athol Sav. Bank v. Bennett, 203 Mass. 480 (judgment creditor who paid pledgee's note secured by stock). Chicago St. Co. v. Car Co., 139 U. S. 79 (insurance company paying loss). Newell v. Hadley, 206 Mass. 335 (leading case on doctrine of unjust enrichment as between two trust funds held by one trustee). Fitcher v. Griffiths, 216 Mass. 174 (wife paying mortgage given by husband, sub- rogated). It is immaterial that the security has been given at a time subsequent to the making of the contract or without the knowledge of the surety. Johnson v. Bartlett, 17 Pick. 477. Hart v. Western R. R. Co., 13 Met. 99 (subrogation of an insurance company to tort rights). A mere volunteer has no rights of subrogation. Pearmain v. Mass. Hosp. Life Ins. Co., 206 Mass. 377 (second mortgagee paying taxes). Aetna Life Ins. Co. v. Middleport, 124 U. S. 534. Skinner v. Tirrell, 159 Mass. 474 (one fur- nishing a married woman money to buy necessaries is not subrogated to the rights of one who furnished necessaries). Title Guarantee & Trust Co. v. Haven, 196 N. Y. 487. PECUNIARY RELIEF IN EQUITY 211 When a purchaser of land agrees with a mort- gagor to assume and pay a mortgage debt but fails to do so, the mortgagor, if compelled to pay, will be subrogated to the rights of the mortgagee against the premises, or may look to the personal responsibility of the purchaser. Dean v. Toppin, 130 Mass. 517. Locke v. Homer, 131 Mass. 93. Reed v. Paul, 131 Mass. 129. One who has a lien on land, may, under some conditions, be subrogated in equity to the owner's chose in action against another for damages. Bates v. Boston Elevated Railway, 187 Mass. 328. One who sells land subject to a tax and later is sued for and pays the tax, is subrogated to the tax collector's lien on the property. Webber Lumber Co. v. Shaw, 189 Mass. 366. So although the purchase of merchandise in bulk without certain formalities is by statute 12 fraudulent, the purchaser, if innocent of actual fraud, will be subrogated to the claims of secured creditors he has paid. Adams v. Young, 200 Mass. 588. A surety who has paid a debt may ordinarily recover by subrogation or by way of indemnity only his actual loss, 13 but has a right of action whenever he pays any part of the obligation. The surety's remedy is conditional on his satis- fying the obligation or some part of it, and arises 12 Mass. St. 1903, ch. 415. 13 Compare Fowler v. Strickland, 107 Mass. 552, in which an accommodation indorser on a $2000 note for the maker's benefit, bought the note for $1000 from the holder, who had paid $2000 for it. He was entitled to recover from the maker $2000. 212 EQUITY AND ITS REMEDIES only then, except that he may compromise a claim before it is due, and wait until it matures to assert his right. Thayer v. Daniels, 110 Mass. 345. Chandler v. Brainard, 14 Pick. 285. Doolittle v. D wight, 2 Met. 561. To avoid circuity of action equity will, however, protect those who by an enforced payment will become entitled by subrogation to indemnity from the one who is to receive the payment. Harmon v. Weston, 215 Mass. 242. A surety, by failure to raise against the creditor his personal defenses (such as a statute of limitations or the Statute of Frauds), does not lose his right to subrogation or indemnity. Beal v. Brown, 13 Allen 114 (Statute of Frauds). Shaw v. Loud, 12 Mass. 447 (a statute of limitations) . A surety, by failure to raise against the creditor such defenses as would have excused the principal debtor, does not lose his right to indemnity if he acts in good faith and without knowledge of the defense. Warner v. Morrison, 3 Allen 566. Frith v. Sprague, 14 Mass. 455. E. MARSHALING. One who has a right to payment from a single fund may compel another who has a right to pay- ment from more than that one fund to exhaust those funds upon which the first has no claim. This is marshaling. Carter v. Tanner's Leather Co., 196 Mass. 163. Adams v. Young, 200 Mass. 588. PECUNIARY RELIEF IN EQUITY 213 Baker v. Davie, 211 Mass. 429. Bates v. Boston El. Railway, 187 Mass. 328. Pomeroy sec. 1414. The doctrine will not be enforced to the prejudice of a creditor against whom it is sought to be applied. Carter v. Tanner's Leather Co., 196 Mass. 163. INDEX INDEX 217 ACCIDENT (see MISTAKE) relief from, in equity and at law 86-88 jurisdiction in 86 relief from lost instruments 86 defective execution of powers 87 preventing defense on merits 87 forfeitures 87 arising in settlement of estates alteration or mutilation of instruments 88 no relief from express agreement 88 no relief against bona fide purchaser 88 distinguished from mistake 89 ACCOUNTING. between partners 19, 133 equitable jurisdiction in 202-206 where there is fiduciary relation 202, 203 between trust funds 202 where there is complication . t 203 incidental to other relief . 204 at law or in equity 205 rules observed in 205 ACTIONS . (see EQUITY JURISDICTION; CONTRACT; COURT OF COMMON LAW) early, at common law : 3 early, in chancery 3, 4 later, in chancery 4 against parties within the jurisdiction 34 affecting property outside the jurisdiction 34, 35 equitable restraint of actions at law 35, 160-162 relating to local property of non-residents 36, 37 ADEQUATE REMEDY AT LAW (see INADEQUACY OF LEGAL REMEDY) definition of 24 absence of, basis of equity relief presence of, a defense to equitable procedure .... where subject matter is ordinary personal property . 27 failure to raise defense of 30 to enforce assignments, . , 54 for fraud in some cases 98 where contract to convey has been executed by vendor 118 if price has been put on unique subject matter . . . 120 discussion of, in labor disputes 193 218 INDEX ADMINISTRATORS AND EXECUTORS (see DEATH; WILLS). not considered assignees 56 duty to perform decedent's agreements for sale of land 81, 82 accidents by, relieved from in equity 88 are volunteers 96 certain purchases and sales by, fraudulent 101 may bring bill to set aside fraudulent conveyance . . 105 AGENT. of non-resident may enjoin enforcement of contract here 97 fraudulent representation of, as ground for relief . . . 100 certain purchases and sales of, fraudulent 101, 102 vendor of good will may not compete as 132 AGREEMENT. (see SEALED INSTRUMENTS; WRITTEN INSTRU- MENTS; CONTRACT). ALTERATION. of instruments, relief from, 88 AMENDMENTS . to and from equity 9, 116 ARBITRATION. certain agreements for, not enforcible 121, 122 certain agreements for, enforcible 122 as condition precedent to suit 122 damages for revocation of agreement to submit to . . 122 award after, specifically enforced 123 ASSETS. of partnership may be distributed 18 distribution of, in equity, follows law 41 ASSIGNEE. (see ASSIGNMENTS). his right to sue at law in assignor's name 52 his right, under statutes, to sue 54 may sue in equity on equitable assignment 57 rights of, to enforce restriction 137, 138 ASSIGNMENTS. certain, not recognized at early common law 52 how made 53 delivery as an element in 53 as affected by modern statutes 54 what choses in action are assignable 54-56 equitable 52, 57 of fractional parts of funds 57 certain voluntary agreements not assignable .... 58 INDEX 219 stranger recognized as assignee, in equity 58 orders as 59 when assignee's title vests 60 nature of assignee's title 60 liability of lessee's assignee 60 rights under successive 60 under fictitious name, valid 61 none, of right to sue for fraud 112 of rights in equity to set aside instruments for fraud . 112 of trade marks and names 187 ATTORNEY. client not in part delicto in champertous contract 102 purchases and sales by, as constructive fraud against client 101, 102 service on, where defendant a non-resident 162 accounting with 202 ATTORNEY GENERAL may seek injunction against monopolies 128 should bring bill to enjoin public nuisance 176 AUTHOR. may have relief for infringement of copyright 183 AWARDS. specific enforcement of, after arbitration 123 B BANK BOOKS. as subjects of assignment 53 BANKRUPTCY. trustee in, may set aside fraudulent conveyance 105, 106 not ground for relief, where conveyance is of trust prop- erty 105 statutes defining fraudulent preference of debtor as ground for specific performance 120 effect of sale of good will, following 132, 133 as a ground for enjoining proceedings in state courts . . 161 as a defense to contribution 209 as a ground for subrogation 209 BILL TO REACH AND APPLY. an equitable interest 105 BONA FIDE PURCHASER. without notice 61 protected, where relief sought against accident protected where relief sought against mistake 96 220 INDEX BOND. (See SECURITIES). jurisdiction, to chancer jurisdiction to relieve against penalties benefit of, assignable 65 of indemnity in suits on lost instruments 86, 87 holder of, may bring certain suits 164 in patent litigation 182 BOUNDARIES. projection of structure over, enjoined 170 BOYCOTTS AND STRIKES. relief by injunction in 191-201 BUSINESS. (see PARTNERSHIP: PARTNERS). specific performance of agreement to sell 120 contracts not to compete in 129 et seq. contracts involving sale of good will of 129 et seq. whether sale of, implies agreement not to compete . . 133 restrictions following involuntary sale of 132, 133 right to advertise as successors of 133 restrictions enforced, after sale of 136, 137 landlord's right to enjoin particular lands 180 license to conduct, as a defense to nuisance action .... 180 injury to, as an element in trademark suits 185 injury to, as an element in unfair competition 188 injunctions to restrain interference with 191-201 C CANCELLATION. (See RESCISSION; REFORMATION). of deed of foreign property .._.... 35 of contract, as form of relief in mistake 93 of fraudulent conveyances 105 of executory contract, for fraud 110 CERTIORARI. adequate equitable remedy a defense to 26 as an adequate remedy for certain acts of officials 163 CHATTEL MORGAGES. of personalty to be acquired, operate how 57 CHATTELS. (see PERSONAL PROPERTY). CHOSES IN ACTION. assignment of 52-60 what, are assignable 54, 55 estoppel from entrusting another with evidence of .... 74 fraudulent transfer of . 104 INDEX 221 CLAYTON'S CASE, RULE IN defined 205 CLERGYMAN. certain contracts with parishioner, voidable 102 COMPETITION. (see MONOPOLY). enforcement of contracts not to compete 129 et seq. limited by sale of good will, when 130 et seq. no justification for interference with contract 194, 195 COMPLETE RELIEF. in equity, after jurisdiction had 30 COMPROMISE. no relief from mistake at basis of 92 agreement as to will, enforced 119 one liable for another's debt may 206, 212 CONCURRENT JURISDICTION. in some cases 28 necessity for election, no bar to 75 CONSIDERATION. in assignments 52 in certain estoppels 73 inadequacy of, as ground for relief 100 usually absent, in fraudulent conveyances 106 given for deed fraudulently obtained, must be restored on rescission 113 inadequacy of, as bar to specific performance 154 CONSPIRACY. as an element in labor disputes 193-201 CONSTRUCTIVE FRAUD. (see FRAUD). equitable relief from results of 100 et seq. different classes of 100 et seq. statute of frauds does not apply to 113 one guilty of, may yet have subrogation 113 CONTEMPT. penalty for disobedience of decree 34, 116 CONTRACT. (see AGREEMENT; COVENANT; CHOSES IN ACTION), when one rescinds, he must place other in statu quo . . 46 certain, not assignable 56 present interest in, may be assigned 56 estoppel by 70 222 INDEX conversion from land contracts 78-84 validity of, as requisite of conversion 81 between certain fiduciaries, voidable 102 action of, for fraudulent violation of agreement . . . 109 action of, with attachment, to remedy fraud 109 action of, to recover money obtained by fraud .... 109 cancellation or rescission, for fraud 110 specific performance of, 116 et seq. enforcements of affirmative 117 about certain chattels enforced 118 to sell business 120 to sell unique articles needed in business 120 negative in form, when enforced 126 et seq. affirmative, requiring the performance of labor . . . 123-126 negative, involving personal services 126-128 limiting use of property 128, 129 not to compete, express and implied 129 et seq. enforcement of those partly performed 143-147 partial performance of 147 time the essence of the contract 148-151 marketable title necessary to enforcement of 151 mutuality an essential feature 152 necessity and adequacy of consideration in 154 sundry defences to specific performance of 155 one breaking, cannot recover payment made 157 when option to.render void, is on vendor 157 injunctions to restrain interference with 191-201 indemnity in action of, after payment of another's debt 206 as basis of contribution 207 inadequacy of relief in action of, between co-sureties . 207 CONTRIBUTION. when one may have 207-209 at law and in equity 207 defenses to 208, 209 CONVERSION. (see EQUITABLE CONVERSION). CONVEYANCE. (see FRAUDULENT CONVEYANCE; RECORDING ACTS; TITLE; DEEDS). CO-OWNERS. (see CO-TENANTS; JOINT OWNERS). suits between, of personalty 20 COPYRIGHTS. nature of 183 bills to restrain infringement of 183 INDEX 223 CORPORATION. adequacy of legal relief in contracts relative to shares in 27 estopped to deny validity of incorporation 70 fraudulent contracts affecting officers of 101 promoter's frauds affecting 103 quo warranto and mandamus against officials of . 162, 163 restraint of acts of officials of 162, 164 may be enjoined as a conspirator in labor case . . . 201 when stockholders may require accounting of officers of 203 CO-TENANTS. suits between 19 waste between 166 one of, may restrain stranger's trespass 172 COURTS OF COMMON LAW. early 1 in England 2, 3 equitable defenses in 8 amendment of suits to and from 9 no jurisdiction over suits between husband and wife . 12 suits in, between partners 16, 17 adequacy of remedies in 24 formerly did not recognize assignments 52 remedies in, for fraud 109 equity jurisdiction to restrain suits in 160-162 jurisdiction of, in waste 165 jurisdiction over simple money trusts 202 concurrent jurisdiction in accounting 205 indemnity in 206,209,211 contribution between sureties in 207 COURTS OF EQUITY. (see EQUITY JURISDICTION). COVENANT. (see CONTRACT; AGREEMENT). not to compete, when enforcible 129-133 running with the land, at law 135 in deed and lease 135 enforcible between those having priority 135 obligation of grantee in deed poll, not a 135 may be a personal contract 135 effect of privity of estate on 135 restricting use of realty or personality 137 CREDITOR. avoidance of fraudulent conveyance by 103 el seq. conveyance to, not a preference at common law . . . 108 224 INDEX conveyance fraudulent against, good between parties . 108 may not always have equitable accounting 203 rules for accounting with debtor 205 application of payments by 205 CREDITORS' BILLS. because of inadequacy of legal remedy 26 CURTESY. how affected by conversion 82 D DAMAGES. in money in equity 24 rule for, in rescission Ill as a form of equitable relief for fraud Ill may be assessed in equity, after refusal of specific per- formance 116 inadequacy of legal, as ground for specific performance 117 recoverable for revocation of agreement to arbitrate . 122 for breach of restrictive covenants 137, 141 where land freed of restrictions by Land Court .... 142 in equity for waste 168 trespass restrained, though damage nominal .... 169 ,170 alternative decree for, in trespass 170 in place of injunction to restrain disturbance of easements 173 nuisance restrained, though damage nominal 178 may accompany injunction against nuisance . . . 179, 181 profits allowed in decrees for copyright violation . . . 183 for violation of trade secrets 190 profits and damages in various infringement suits _ .190, 204 as affected by length of contract, in malicious inter- ference cases 194 an element in interference with business or employment 194, 200 distinguished from profits 204 rules for, in certain accounting cases 204 DEATH. of agreed vendor, results of 81, 82 of agreed vendee, results of 81, 82, 83 of party against whom equitable right to relief for mis- take exists 96 of one who has made a fraudulent conveyance .... 105 does not bar following trust property, procured by fraud 112 a bar to action of tort for fraud . 113 of partner, affect in limiting competition 132, 133 DEBTS. of partnership, contribution as to 19 merger of contract debt, in judgment 67 INDEX 225 presence of, as basis for creditor's relief from conveyance 105 rules where there are several, between same parties . . 205 indemnity after payment of another's 206 compelling exoneration 206 DECEIT. (see MISREPRESENTATION; FRAUD; ESTOPPEL). as ground for estoppel 71, 72, 73 as fraud in equity 99 et seq. tort remedy for 109 how far an element in trade name relief 188 DECREES. (See EQUITY JURISDICTION). in interpleader 22 are in personam 34 disobedience of, how punished 34 may affect property outside the jurisdiction 34, 35 affecting local property of non-residents 36 against minors and insane persons 37 restraining suits at law 37 different forms of, in equity 110-112 rescinding deed obtained by fraud, should restore defen- dant's consideration 113 rendered effective by enjoining law suits 160-162 erroneous, effective because plaintiff did not appeal . . 170 in nuisance cases 181 in patent infringement suits 182 in copyright cases 183 DEEDS. (see WRITTEN INSTRUMENTS; LOST INSTRUMENTS). laches no defense to void 51 as a means of assigning a chose in action 53 right of entry for breach of condition in, not assignable 56 statutes for recording 61-64 notice as affecting 61-64 estoppel to deny effect of 67, 68 title by estoppel from warranty (or quitclaim), .... 68 mistake in, when and how remedied 90, 94 et seq. rescission of deed fraudulently obtained, restores defen- dant's rights 113 specific re-delivery of 119 whether covenants in, run with the land 135 acceptance of, may create restrictions 136, 137, 138 DEFENSES. (see STATUTE OF FRAUDS; STATUE OF LIMITATIONS). equitable, in law cases in interpleader 21, 22 226 INDEX that legal relief is adequate 26, 28 failure to raise defense of adequate legal remedy ... 29, 30 plaintiff's fraud as a defense 48 estoppel 64-76 to bills to relieve from accident 88 to bills to relieve from mistake 96 to bills for fraudulent conveyance 106, 108 that conveyance was in execution of oral trust .... 107 release obtained by fiduciary, may not be 109 as a form of equitable relief 110 to specific performance, as remedy for fraud 112 laches as a defense to fraud 112 that plaintiff was party to fraud 112 death of plaintiffs as defense to action for fraud ... 113 antecedent fraud may not be defense, because merged in contract 113 to suit for purchase price of land 118 anti-trust act must be pleaded 128 to enforcement of restrictions 141-143 Statute of Frauds, in specific performance 143 that time is of the essence of contract 148-151 that title not marketable 151, 152 lack of mutuality 152-154 inadequacy of consideration 154 sundry defenses to specific performance 155 lack of identification of property in bill to perform . . 157 equitable, as basis of injunction against suit 160 omission to present, not ground for relief in equity . . 160 to action for waste 167, 168 to actions for trespass 171-173, 177 prescription as a defense to bill for nuisance or trespass 177 to bills for nuisance 177-181 to bills for infringement of trademarks 187, 190 to bills for infringement of patents, marks, etc. ... 190 to bills for contribution 208, 209 to bills for subrogation 212 to bills for marshaling 212 DEMURRER IN EQUITY. where legal remedy adequate where laches appears in bill 50 where property not identified in bill to perform . . . 157 DIRECTORS. (See CORPORATIONS). secret profits by, as constructive fraud 103 DISCHARGE. of mortgage, corrected to assignment 98 DISCRETION. as to amending to and from equity 9, 116 INDEX 227 as to jury issues 33 revision of, as to jury issues 33 refusal to foreclose foreign mortgage as a matter of . 35 as to specific performance 116 to assess damages after refusal of specific performance . 116 DONATIONS MORTIS CAUSA. (see GIFTS), good between husband and wife 15 DOWER. estoppel from release of 69 how affected by conversion 82 of widow of agreed vendee 82, 83 DRAMATIC COMPOSITION. (see PLAYS). DRUNKENNESS. of partner, as ground of dissolution 18 of contracting party, as fraud 101 DURESS. (see UNDUE INFLUENCE). of contracting party, as ground of fraud 101 E EASEMENTS. legal, nature of 133-134 equitable (see RESTRICTIONS). doctrine of part performance applied to 147 restraint of disturbance of 172, 173 ELECTION. of remedies, a form of estoppel 74 where there is none 75 where two suits for same cause 75 does not prevent concurrent remedies 75 under Workingmen's Compensation acts 75 to proceed for damages, after specific performance refused 116 between suit at law or specific performance 155 EMINENT DOMAIN. conversion of proceeds, where land taken by 78 EMPLOYER AND EMPLOYEE, (see LABOR; BUSINESS), duty of employee not to reveal trade secrets . 127, 189, 190 employer's right in inventions 190 injunctions in disputes between 191-201 228 INDEX ENGLAND. early courts in 1, 2, 3 present law courts 2 early law actions in 3 adequacy of legal remedy in 26 chancery jurisdiction in, as affecting right to jury trial 32 EQUITABLE CONVERSION. based on maxim 45 definition of 76 enforced where 76 occur when 77, 78 duration of 78 of proceeds of insurance 79 re-conversion 79 Statue of Frauds in 80 in determining inheritance taxes 80 in land contracts 80 effect of death of agreed vendor or vendee 81, 82 effect on dower or curtesy 82, 83 effect of loss before conveyance 83, 84 EQUITABLE EASEMENTS, (see RESTRICTIONS). EQUITABLE LIENS the maxim that supports them 45 EQUITABLE MORTGAGE. where debtor has agreed to give mortgage 121 EQUITABLE REPLEVIN. jurisdiction of equity in 119 EQUITY JURISDICTION. history of the rise of 2-4 history of in Massachusetts 5 extent of present system 6 effect of, on legal rules effect of, on statutes 7 an outline of 9 because of subject matter 9 because of remedy sought 10 because of parties seeking remedy 12 et seq. actions exclusively within 12 et seq. effect of adequacy of legal remedy on 24 et seq. concurrent with law 24, 25, 28 because of legal inadequacy 24 not given in some cases by waiver of defense . . . . 28, 29 once obtained, retained for all purposes 30 dismissal for want of 30, 31 INDEX 229 formerly dependent on amount involved 31 retention of, though changes pendente lite 31 is in personam 34 over persons 34 over property outside the jurisdiction 34, 35 to enjoin suit in another state 35 to enjoin against tort in another state 35 to foreclose foreign mortgage 35, 36 over local property of non-residents 36, 37 affords relief where new right created 40 follows the law 40 one who seeks, must do equity 45 plaintiff in, must have clean hands 46 will not determine respective rights of wrong-doers . . 49 over assignments 52, 57, 58 in cases of equitable conversion 76 to relieve from accident 86-88 to relieve from mistake 88-98 to relieve from fraud 98-114 to recover and apply equitable interest 105 to enforce contracts specifically 115-157 over replevin 119 to enjoin, generally 158-201 to restrain law suits and judgments 160-162 to restrain acts of officials 162-164 in specific reparation and prevention of torts . . . 165-201 in accounting 202-206 in exoneration 206 in contribution 207-209 in subrogation 209-212 in marshaling 212-213 ESTOPPEL (see RES JUDICATA). adverse equity sometimes raised by 46 under recording acts 62, 73 definition of 64 legal 65 by record 65, 66, 67 against suit by same plaintiff, in another capacity . . 65 by deed 67, 68 title by 68, 69, 74 from release of dower 69 in pais 69 from contract 70 equitable (by misrepresentation) 70, 71, 72, 73, 74 from entrusting another with chattels 74 none from earlier inconsistent defense 67 election of remedies, as 74, 75 230 INDEX waiver as 75, 76 creation of restrictions by 142 doctrine of part performance based on ........ 144 EVIDENCE. same rules in equity as at law 41 nature of, required to correct mistake in instrument . . 97 EXECUTION. (see JUDGMENT). to restrain collection of 160-162 equitable set-off of 160 EXECUTOR. (see ADMINISTRATORS AND EXECUTORS: DEATH; WILLS). EXONERATION. when one may have 206 F FALSE REPRESENTATION. (see MISREPRESENTATION). FIDUCIARY RELATIONSHIP. as basis of fraud 101-103 various classes of persons holding 101-103 release obtained by one in, may be disregarded ... 110 as a basis for accounting 202 FIRE. destroying buildings agreed to be sold 83,84 no defense to building contract 88 no defense to agreement to pay rent 88 FORECLOSURE. of foreign mortgage 35, 36 redemption from fraudulent 112 FOREIGN LAW. mistake of, as basis of relief 92 FORFEITURES. relief against 7, 87 FRAUD. (see MISREPRESENTATION; ESTOPPEL; FRAUDU- LENT CONVEYANCE; FRAUDULENT PREFERENCE) between husband and wife 13, 14, 15 INDEX 231 between partners 17 of plaintiff as ground for refusal of relief 48 previously attempted by plaintiff, no defense .... 49 right to litigate for, not assignable 56 contrasted with mistake 92 jurisdiction in England and America ...... 98 et seq. relief from results of constructive 100 et seq. apparent from nature of bargain 100 illegal contracts, as 101 from contracts affecting public officers 101 presumed from circumstances of parties 101 by conveyance or transfer in fraud of creditors . 103 et seq. by conveyance in fraud of marital rights 103 by grantee as element in fraudulent conveyance ... 106 certain sales of merchandise in bulk, as 106, 211 not apparent in prima fade case, no bar to plaintiff's recovery . 108 as a legal or equitable defense 110 right to sue for. not assignable 112 right to set aside instruments for, assignable 112 claim of, must be alleged and proven 112 party guilty of, may not have relief 112 in procuring trust property, relieved after fraudulent actor's death 112 in absence of, contract will not be reformed to make less harsh 113 antecedent to contract may be merged in it 113 in substituting agreement, as ground for enforcing oral contract 147 as defense to specific performance 155, 156 as basis of equitable interference with suits and judg- ments 160 on the public as a basis of trademark suits 185 FRAUDULENT CONVEYANCE. void as against creditors 103 void, if in violation of martial rights 103 grantee's fraud as element in 106 certain sales of merchandise in bulk, as 106 extent of knowledge of, by grantee 106 execution of oral trust, not a 107 FRAUDULENT PREFERENCE. to certain creditors, a matter of statute 104, 108 FUND. ordering payment from 11 conversion where proceeds mixed in 78 marshaling of 212, 213 232 INDEX G GIFTS. (see DONATIONS CAUSA MORTIS). between husband and wife 15 validity of as assignments 52, 53 oral, of incorporeal personalty 53 of bank books, notes, policies, etc 53 donor may have reformation of instrument of gift . . 95 doctrine of part performance applied to 147 GOOD WILL. agreement implied from sale of 130-133 history of Massachusetts decisions on 131 GUARDIAN. certain purchases and sales by, fraudulent 101 H HEIRLOOMS. specific redelivery of 119 HEIRS. deeds reformed, to insert the word 90 rights in decedent's agreements to buy or sell . . . . 81, 82 HISTORY. of law courts in England 1, 2, 3 of legal actions 3 of early chancery jurisdiction 3, 4 of equity jurisdiction in Massachusetts 4, 5, 6 of rise of specific performance 116 of Massachusetts decisions on sale of good will .... 131 HUSBAND AND WIFE. suits between, at common law 12 suits between, in equity 13 to set aside ante-nuptial contracts 13 to protect equitable interests 13 to recover property 13, 14 15 none for money loaned 14 specific performance between 14 to obtain equity to settlement 15 dower and curtesy as affected by equitable con- version 82, 83 when creditors of each other 104 conveyances between, whether fraudulent 107 certain trusts between . . 108 INDEX 233 I ILLEGALITY. of contracts, as fraud 101 IMPROVEMENTS. as elements of part performance 146 effect on, of failure to complete contract 150 INADEQUACY OF CONSIDERATION. as an element of constructive fraud 100 INADEQUACY OF LEGAL REMEDY. (see ADEQUATE REMEDY AT LAW). as basis of equitable relief 24 el seq. where subject matter of contract is land, etc 27 in some cases immaterial 28 where damages at law inadequate 120 because of vendee's insolvency 121 where debtor has promised security 121 as basis of remedy in accounting 204 for obtaining contribution between co-sureties .... 207 INDEMNITY. bond of, in suit on lost instruments 86, 87 bond of, in patent suits 182 where one pays debt for which another is liable . 206, 209, 211 212 INFANTS. decrees against, as defendants 37, 38 not chargeable with laches 51 possession of money for, does not terminate conversion 79 constructive fraud of guardian of 101 INFRINGEMENT. of patents 181 of copyrights 183 of author's rights in unpublished plays, manuscripts, photographs, letters, etc 184 of right of privacy 184 of rights in letters 184 of trade marks 184-187 of trade names, unfair competition 188-189 INJUNCTION. against suits at law 8 against tort in another jurisdiction 35 against waste of agreed vendor or vendee 83 against husband's claim of curtesy 83 against enforcement of obligations obtained by fraud . Ill to enforce negative contracts 126 234 INDEX to enforce agreements implied from sale of good will . 130 as the method of enforcing restrictions 136 generally 158-201 kinds of and principal uses for 158, 159 to restrain suits and judgments 35, 160-162 to restrain acts of public or corporation officials . . 162-164 to restrain waste 165-168 to restrain trespass 168-173 to restrain disturbance of easement 172 to restrain nuisance 174-181 to restrain infringement of patents, copyrights, trade- marks, and unfair competition 181-191 to restrain interference with business or contract . . 191-201 in labor disputes 191-201 IN PARI DELICTO. client and attorney not, in champertous contract ... 48 IN PERSONAM. decrees, render equity flexible 25, 26 equity acts 34 el seq. INSANE PERSONS. decrees against, as defendants 37, 38 not chargeable with laches 51 possession of money for, does not terminate conversion 79 contract with, voidable as fraudulent 101 INSOLVENCY. (see BANKRUPTCY). INSURANCE. (see FIRE). assignment of policy of . . 53, 55, 60 estoppel from another's possession of policy 74 waivers arising in policies of 75, 76 conversion of proceeds of policies of 79 recovered by agreed vendor, for vendee 84 as subject of fraudulent conveyance 104 INTERFERENCE WITH BUSINESS OR CONTRACT. a tort at common law 191 will be enjoined in equity, when 191-201 INTERPLEADER. actions of 20 object of 21 plaintiff must be disinterested . . claims in, must not be distinct in origin 21 effect of judgment already rendered first decree in . . 22 INDEX 235 final decree in statutory interpleader 22 bill "in the nature of" to determine validity of equitable assignment .... 57 J JOINT OWNERS. (See CO-OWNERS ; CO-TENANTS). in suits at law, or in equity 20 JUDGMENT. foreign, various incidents of 35, 36, 37 as estoppel 65, 66, 67 merger of contract debt, in 67 upon constructive service, good in personam 65 in rem, effect of 66 for one of several parties 67 relief against improper 87 restraint of by court in equity 160-162 equitable set-off of 160 valid though in violation of injunction 162 JURISDICTION. (see EQUITY JURISDICTION). JURY IN EQUITY. constitutional rights 32 waiver of 32 must be claimed when 32 submission of issues, sufficient 33 statutory provision for 33 effect of verdict 33 K KING. early courts followed 1 originally heard petitions for grace 3 LABELS. (see TRADE NAMES). LABOR, enforcement of affirmative contracts requiring . . . 123-125 enforcement of negative contracts requiring .... 126-128 constitutional right to freedom of 191 interference with right to 191-201 LABOR UNIONS. injunctions in disputes with and between 192 et seq. how sued 201 236 INDEX LACHES. what constitutes 49-51 a form of estoppel 49 analogy of statutes of limitations 49 dependent on facts 49, 50, 51 when matter of law 50 requires knowledge of facts 51 certain suits not barred by 51 no defense, where plaintiff seeks relief from a void instrument 51 as defense to bill to reform for mistake 96 as a defense to restrictions 141 as a defense in nuisance 177, 179 LAND. (See TITLE; TRESPASS; FRAUDLENT CONVEYANCE), inadequacy of legal relief in contracts relative to ... 27 illegal taking of, not ground for equitable relief ... 27 possession of, as constructive notice of title 63 considered as personalty, under conversion 76 conversion in contracts regarding 78-84 sold under order or court, surplus treated as realty . . proceeds from taking of, by eminent domain 79 where conversion by will, there may be election to recon- vert valid contract to convey usually enforced 117 enforcement of restrictions on 135-143 part performance of agreement to sell 143-147 partial performance of agreement to sell 147-148 time in contracts to sell 148-151 marketable title in sales of 151-152 lack of mutuality in contracts to sell 152-154 inadequacy of consideration in agreement to sell . . . 154 should be identified in bill for specific performance . . 157 waste 165 et seq damage to reputation of, not waste 168 projection of structure over 170 LANDLORD AND TENANT. (see LEASE; TENANTS). LAW. (see COURTS OF COMMON LAW). absence of plain, adequate and complete remedy at 124 et seq effect of equity on rules of equity follows the law 40, 41 LEASE. covenant not to assign in, effect of 56 difference between liability of lessee and his assignee . 60 doctrine of part performance applied to 147 INDEX 237 LEGACY. (see WILLS; ADMINISTRATOR AND EXECUTOR). equitable replevin of specific 119 specific, defined 207 contribution between persons entitled to 207, 208 LETTERS. injunction against publication of 184 LIBEL AND SLANDER. will not be enjoined 158 LIENS, EQUITABLE. the maxims that support them 45 LIGHT AND AIR. disturbance of easement of 173 LIS PENDENS. referred to the doctrine of notice 64 LOST INSTRUMENTS. legal rules permitting suit on 7, 86 recovery on, in equity 86 indemnity bond in suit on 86 defenses to relief on 88 M MACHINERY. noise and jar or, as a nuisance 174, 181 invention of by employees 190 MANDAMUS. a remedy at law 10 as a remedy for certain official acts 162, 163 MANUSCRIPTS. injunctions against publication of 184 MARTIAL RIGHTS. conveyances in fraud of 103 MARKETABLE TITLE, (see TITLE), generally 151-152 MARRIAGE. effect of, on contracts to convey 82 contracts in restraint of, fraudulent 101 as a consideration in conveyances 107 238 INDEX MARRIAGE SETTLEMENTS. protected in equity 13, 14, 15, 107 MARRIED WOMEN. (See HUSBAND AND WIFE ; MARRIAGE ; MARITAL RIGHTS). rights against husband 12-15 rights on note of husband 12, 13 equitable interest protected 13 MARSHALING. as between funds 212, 213 MAXIMS. equity will not suffer a wrong to be without a remedy 39 equity follows the law 40 where the equities are equal, the law will prevail ... 43 where interests are purely equitable and in other res- pects equal, priority in time gives the better equity 44 equity treats that as done which ought to be done . . 45 he who seeks equity must do equity 45 he who comes into equity must come with clean hands 46 equity aids the vigilant 49 MERGER. of a debt in a judgment 67 of antecedent fraud, in contract 113 MINORS. (see INFANTS). MISREPRESENTATION. (see FRAUD; ESTOPPEL). as basis of estoppel 70-73 as fraud in equity 99 et seq. as a defense to specific performance 155-156 as a bar to relief in trademark suits ^ 187 as an element in trade name protection 188 MISTAKE.. as a ground for relief in equity 88 of law 89,90 mutual, of law, causing unjust enrichment 89 contrasted with accident 89 in deeds and titles 90, 92 of law and fact in payment of money 90 mutual, of fact 91-93 how and when remedied 93, 96-98 in written instruments inter vivos 94-96 in deed of gift 95 in wills, not relieved 95 contrasted with fraud 95 evidence required to remedy 97 of counsel no ground for equitable relief 160 INDEX 239 MONEY. paid under mistake of law not recoverable 90 paid under mistake of fact sometimes recoverable . . 90 equitable replevin of 119 loaned on agreement to give mortgage 121 equitable restraint of illegal appropriation of 164 contract action, for money trust 202 rules for application of, where several debts 205 MONOPOLY. (see COMPETITION). criminal statutes prohibiting 126, 128 civil statutes prohibiting 128 Sherman Anti-trust Act 128 enforcement of contracts affecting 128 holder of patent has a legitimate 129 MORTGAGES. relief from, in Massachusetts 5 equity jurisdiction over foreign 36 payment of additional sums as requirement for re- demption 45 rights of assignee 60 agreed vendor likened to mortgagee 80 forfeitures in 87 discharged by mistake, re-established in equity ... 98 as subject of fraudulent conveyance 104 redemption from fraudulent foreclosure of 112 holders of, may enforce restrictions 137 waste as between parties to 167 subrogation of one who pays 211 MULTIPLICITY OF SUITS. avoidance of 25, 30, 163, 176 MUTUALITY. lack of, as a defense to certain bilateral contracts . 152-153 N NE EXEAT REGNO, -WRIT OF. to prevent defendant's leaving, without bond 38 relief from mistake as to bond in 90 NEGATIVE CONTRACTS. enforcement of 126 et seq. involving personal services 126-128 limiting use of property 128-129 against competing 129-133 240 INDEX NEGLIGENCE. as a bar to relief from accident 86 as a bar to relief from mistake 93 NEGOTIABLE INSTRUMENTS, (see PROMISSORY NOTES). NOISE. injunction to restrain 174 NOTICE. effect of 61 under recording acts 61, 63, 64 under Mass. Land Court Act 61 estoppel from 61 as affecting personalty 62 actual 62, 64 constructive . 62, 63 presumed from evidence 63 recitals in deeds, as 63 lis pendens 64 acquired after payment, but before deed 64 immaterial, where grantor's title is good by estoppel . 74 NUISANCE. jurisdiction to restrain 174-181 distinguished from other torts 174 examples of private 174, 175 actions at law for 175 examples of public 176 lessor's right to enjoin 177 limitation of right to sue for 177 occasional, not enjoined 178 relative hardship of parties 178 damages in actions for 179, 181 prescriptive right to maintain 179 defenses to 179-181 legislature may create, by statute 180 licenses as affecting 180 decrees in bills for 181 strike may constitute public 200 O OFFICERS. (see CORPORATION; PUBLIC OFFICERS). OPTIONS. on property, not naming price, not enforcibte .... 123 how affected by doctrine of mutuality 153 ORDERS. as assignments 59 INDEX 241 P PAROL CONTRACT. (see STATUTE OF FRAUDS). PAROL EVIDENCE. competent to prove mistake in instrument ...... 97 PART PERFORMANCE. (see STATUTE OF FRAUDS). as basis for exception to Statute of Frauds .... 143-147 ground for enforcement 144 acts of 144-146 doctrine repudiated in certain states 144 doctrine applies to easements and leases 147 when doctrine is applied to gifts 147 PARTIAL PERFORMANCE, WITH COMPENSATION. when vendor and vendee may have 147-148 distinguished from part performance 147 PARTIES. equitable . 12 et seq suits between those having co-ownership 19, 20 husband and wife 12 et seq partners 16 et seq haying distinct rights 20 in interpleader 20 death of, as affecting conversion 81, 82 where defrauded person has died 102 to conveyance, cannot avoid because fraudulent as to creditors 108 guilty of fraud may not have relief 112 in labor disputes 201 PARTITION. of real estate in equity 19 of chattels in equity 19, 20 PARTNERS. suits between partners 16 et seq at common law 16 in equity 17 to establish and regulate partnership 17 to dissolve partnership 17, 18 accounting in 18, 19 contribution in 19 whether all but plaintiff should be defendants . 19 effect of judgment for one of three, on note ... 67 specific performance between, of agreement to sell business 120 242 INDEX vendor of good will may not compete as 132 surviving partner, certain rights in competition . . 132, 133 PARTNERSHIPS. (see PARTNERS; BUSINESS). suits between, having same members 16 effect of sale of good will of 132, 133 PATENTS. assignability of applications for 55 mutilation of assignments of 88 holder of, may enforce monopoly 129 suits for infringement of 181, 182 accounting in patent suits 190-191 no restraint, as unfair competition, after expiration of 188 PENALTIES. relief from 87 PERSONAL PROPERTY. (see CHATTEL MORTGAGES; ASSETS; CHOSES IN AC- TION; FUND; SPECIFIC DELIVERY OF CHATTELS). suits between co-owners of 19, 20 absence of notice, as affecting title to 62 no estoppel from entrusting another with ..... 74 considered as real estate, under doctrine of equitable conversion 76 contract for sale of, enforced if property is unique . 118, 120 enforcement of covenants restricting use of 137 trespass to, restrained 173 PERSONAL SERVICE. ordinarily required for jurisdiction 34 service on attorney may be 36 PHOTOGRAPHS. injunction against publication of 184 PHYSICIAN. certain contracts with patient, voidable 102 PICKETING. (see BOYCOTTS AND STRIKES; INTERFERENCE WITH BUSINESS OR CONTRACT), as an element in industrial disputes 199, 200 PLAYS. injunction against publication of 184 POLLUTION. of air by smoke or odor 174, 179 of water 175, 177, 178, 179 INDEX 243 POWERS. relief from defective execution of 87 PREFERENCE. (see FRAUDULENT PREFERENCE). PRESCRIPTION. may affect defendant's right to set up clean hands maxim 49 as a defense to bill for nuisance or trespass 177, 179 PRIORITIES. maxims respecting 42-44 between successive assignees 59-60 under recording acts 61, 63, 64 PRIVACY. injunction to protect the right of 184 PRIVITY OF ESTATE. necessary in order that covenants shall run with land 135 PROBATE COURT. equity jurisdiction in, in Massachusetts 6 PROCEDURE. three classes of modern 4 the jury in equity 32, 33 contempt 34 equity follows legal 41 PROFERT. formerly required, of sealed instruments 7, 86 PROFITS. (see DAMAGES). when allowed, of on redemption from foreclosure . . 112 allowed in decrees for copyright infringement 183 when allowed in infringement suits 190-191 distinguished from damages, in accounting 204 PROMISSORY NOTES. (see WRITTEN INSTRUMENTS and LOST INSTRU- MENTS). between husband and wife 12, 13 between partners 16, 17 assignments of 52, 53 ,54, 60 estoppel from judgment on, for partner 67 PROMOTERS. certain contracts of, with corporation, voidable . . . 102 PUBLIC NUISANCE. (see NUISANCE). 244 INDEX PUBLIC OFFICERS. fraudulent contracts affecting 101 quo warranto and mandamus against 162-163 restraint of illegal acts of . . . . 162-164 license from, as a defense to bill for nuisance . . . 180 PUBLIC POLICY. ground for holding certain transactions fraudulent . . 109 determines how far contracts bind assigns .... 139, 140 Q QUO WARRANTO. a remedy at law 10 as a remedy for certain official acts 162 R REAL ESTATE. (see LAND). RECEIVERS. equity courts may appoint 18 RECITALS. in deeds, as notice 63, 64 RECONVERSION. occurs when 79 RECORDING ACTS. effect of 61-64 REFORMATION. of written agreements; for mistake of deeds of gift, for mistake 95 of wills, not granted in equity 95 of contract, after fraudulent alteration 110 RELEASE. given to one in fiduciary relation, may be disregarded . 110 REMEDIES IN EQUITY. (see EQUITY JURISDICTION; DECREES). REPARATION OF TORTS, (see INJUNCTIONS). how jurisidction may arise 119 by injunction 165-201 REPLICATION. jury may be claimed in Massachusetts within ten days after ... 32 INDEX 245 REPRESENTATIONS. (see MISREPRESENTATION). RESCISSION. (See CANCELLATION). of contract requires that defendant be put in statu quo 46 of contract obtained by fraud 100 of contract, with action of tort for deceit 109 of contract, with equitable relief 110 of contract, only for fraud or acts going to essence of contract 113 effect of, is to restore defendant's earlier rights . . 113 RES JUDICATA. (see ESTOPPEL). or estoppel by record 65-67 follows judgment, not verdict 65 dismissal of bill is not 66 from judgment in rent 66 none, as to contract, from refusal to order specific per- formance 116 RESTRAINT OF TRADE. (see MONOPOLY; COMPETITION). RESTRICTIONS. certain obligations of grantee may be 135 definition of 135 how created and enforced 135-143 may apply to personalty or land 136, 137 general scheme to benefit other land necessary . . 137-140 resulting from statute 137, 138 creator of, may enforce 138 may not be for benefit of stranger 139 not to be implied 139 requiring active duties 140 burden and benefit of, pass to assigns 139-140 duration of 140, 141 when not enforcible 141 money damages for violation of 141, 142 land freed from by Land Court 142 no defense to, that neighborhood will change 142 effect of dividing lot subject to 142 Statute of Frauds applies to 142 created by estoppel 142 result of non-user or abandonment 142, 143 effect of plaintiff's technical violation 143 violator's expenditures no defense 143 S SALE. (see LAND; PERSONAL PROPERTY; ASSIGNMENTS), in bulk, may be fraudulent 106, 211 246 INDEX SEAL. effect of in equity 7 omission by mistake, corrected 94 SEALED INSTRUMENTS. (see LOST INSTRUMENTS; DEEDS; CONTRACTS; WRITTEN INSTRUMENTS). payment of, how pleaded 7 necessity for prof ert of 86 SECURITIES. specific redelivery of 119 sureties' rights in 208 rights in, upon subrogation 209, 210 SEPARATE ESTATE OF WIFE. basis of suits in equity 13, 15 SPECIFIC DELIVERY OF CHATTELS. as a form of relief from fraud Ill as reparation of tort '. 119 SPECIFIC PERFORMANCE. between husband and wife 14 may be only adequate remedy in land contracts, etc. . 27 bill for, where decree impossible, retained for damages 31 plaintiff in, must perform his part 45 generally 115 et seq definition and nature of 116 not an absolute right, but rests in discretion . . . . 116 none where vendor has conveyed 118 of contracts concerning chattels 119 of agreement to compromise as will 119 of contracts to sell stocks and bonds 121 of agreements to arbitrate 121-123 of agreements to give options 123 of award after arbitration 123 of contracts involving continuous labor 123-125 of negative contracts 126 et seq of contracts regarding trade secrets 127 of contracts in restraint of trade 128-129 of agreements not to compete 129 et seq. of contracts arising from sale of good will .... 129 et seq of contracts for and against third persons .... 133 et seq of restrictions 136 Statute of Frauds part performance ...... 143-147 of oral contract, where fictitious agreement substituted 14y partial performance, with compensation 147-l4g where time is of the essence of the contract l4g only where title is marketable 151-152 INDEX 247 inadequacy of consideration as affecting 154 sundry defenses to 155 alternative relief, with suit at law 155 STAKEHOLDER. may bring interpleader 20, 21 when sued may summon claimant 22 STATUTE OF FRAUDS. no bar to certain parol transfers under conversion . . 80 as bar to certain corrections in instruments 97 does not apply where oral trust has been executed . . 107 has no application to constructive frauds 113 no defense to fraudulent grantee from oral trustee . 113-114 as bar to suit for purchase price of executed contract . 118 applies to restrictions 142 distinguished from certain other statutes 143 effect of part performance on 143-147 various requirements of 143 agreement covering realty and personalty is within . . 144 no bar to enforcement of oral contract following certain frauds 147 as affecting necessity for mutuality 153 as a defense to specific performance ......... 156 value of land recovered, when agreement within . . . 157 application of payment to debt barred by ...... 205 subrogation by surety who does not raise defense against creditor 212 STATUTE OF LIMITATIONS. as a guide for determining laches 49 application of payment to debt barred by 205 subrogation by surety who does not raise defense against creditor 212 STATUTES. English Judicature Act 2 Statute of Westminister 3 denning equirtable procedure 4 conferring equity jurisdiction in Massachusetts ... 5, 6 permitting equitable defenses 8, 160 defining rights of married women in Massachusetts 12, 13, 15 permitting partition of chattels 20 "statutory interpleader" under 22, 23 limiting equity jurisdiction 26 removing money limit on equity jurisdiction ..... 31 affording new form of relief, ground for jury trial . . 31 giving right to jury trial 33 vesting title in new trustee 37 248 INDEX vesting title without conveyance 36, 37 appointing a trustee to complete sale 37 permitting suit by purchaser of stock on a margin . . 46 giving assignee right to sue at law 54 For recording deeds . . . . 61.62,63,64 requiring executor or administrator specifically to perform 81 relieving from fraudulent conveyances 103 et seq setting aside fraudulent preferences 104, 108 protecting insurance payable to wife 104 excluding from valid gifts to wife, those in fraud of creditors 104 broadening power of executors, etc. to sue for fraudulent conveyance 105 making certain sales in bulk, fraudulent 106, 211 allowing appointment of master to perform decree . . 116 allowing equitable replevin 119 permitting arbitration of controversies 122 criminal against monopolies 126, 128 civil against monopolies 128 prohibiting injunctions in certain labor disputes . . 126,195 Sherman Anti-trust Act 128, 198 limiting right to use another's name in business . . . 133 may create restrictions 136 allowing purchasers from state to enforce restrictions 137, 138 limiting enforcement of restrictions 140 permitting court to free land from restrictions .... 142 that resemble the Statute of Frauds 143 federal, on enjoining suits 162 to restrain illegal appropriations 164 concerning waste 165 preventing easement of light and air by prescription . 173 concerning abatement of nuisances 175 creating nuisances 176, 180 concerning injunctions in labor disputes 192 et seq. making non-membership in union a prerequisite to employment a crime 192 allowing peaceful persuasion of laborers 199, 200 governing accounting 203 STOCKHOLDERS. (See CORPORATIONS). specific performance of agreements of, to sell .... 121 may restrain acts of officers, how 162-164 STRIKES AND BOYCOTTS. as ground for equitable relief 191-201 SUBROGATION. one may have, though guilty of constructive fraud . . 113 when one may have 209-212 at law and in equity 209 extent of recovery 211, 212 INDEX 249 SUITS. (see EQUITY JURISDICTION; ACTIONS). SURETIES contribution between 207-209 subrogation of 209-212 T TAX. non-payment of, as waste 167 subrogation of one paying, to collector's lien 211 TENANTS. (See LEASE). waste between landlord and 165-166 when landlord may not enjoin business of 180 TENDER. not always a prerequisite to specific performance . . 45 when necessary at law and in equity 149, 151 lack of, as a defense 156 TIMBER. cutting of , as waste 166 TIME OF ESSENCE OF CONTRACT. for performance usually formal rather than essential . 148 different rule at law 148 necessity for tender 149, 151 how made in equity 149, 150 effect of 150 TITLE. (See' LAND; DEEDS; FEAUDULENT CONVEYANCE). notice as affecting 61, 62, 63, 64 by estoppel 68, 69 passes to whom 74 mistakes in, sometimes remedied 90, 92 fraudulent statements as to 99 partial performance where defects in 147 must be marketable, for specific performance .... 151 defective on records, may be marketable 151 when court will pass on marketability of 151 must be marketable at what time 151, 152 cloud on, as ground for equitable action 163, 171 should first be settled at law 171 TORT. (See INJUNCTIONS). early actions of 3 certain, not assignable 55, 56 remedy at law for deceit 109 reparation and prevention of 165-201 250 INDEX TRADE MARKS AND NAMES. injunctions against violation of marks 184-187 registration of marks 185 whether or not a trademark is property 185 assignability of 187 injunctions against violation of names 188-189 accounting in trademark suits 190-191 TRADE SECRETS. duty of employee not to reveal 127 innocent purchaser of, may use 127 injunctions against violation of 189-190 accounting for violation of 190-191 TRESPASS. definition of 168 when equity will restrain 168-173 by projection of structure 170 by disturbing private easements 172 to personalty 173 confusion with nuisance 174 TRIAL BY JURY right to, in equity 32, 33 TRUSTEE. judgment against, at law, no bar to certain equity suits 67 agreed vendor likened to 80 purchases or sales of trust property by, fraudulent . . 101 in bankruptcy may set aside fraudulent conveyance . 105 under oral trust, may convey, though insolvent .... 107 under oral trust, may set up Statute of Frauds; his grantee may not 114 TRUSTS. equitable subject matter 9, 10 oral, may be carried out, though trustee insolvent . . 107 between husband and wife 108 accounting, between funds 202 accounting, following a fund 202 U UNDISCLOSED PROFITS. of promoter, receivable by corporation 103 UNDUE INFLUENCE. causing mistake, relief from 90 as basis of relief for fraud 101 not a necessary element in constructive fraud .... 102 specific redelivery of property obtained by Ill INDEX 251 UNFAIR COMPETITION. injunctions to prevent 188-190 accounting on suits to restrain 190-191 UNILATERAL MISTAKES. not ordinarily relieved from 89-91, 93, 95 of law causing unjust enrichment 89, 90 UNJUST ENRICHMENT. as a basis of equitable relief 89, 90 between trust funds 210 V VERDICT. of jury in equity 33 certain tort claims assignable only after 55 VOLUNTEERS. heirs and personal representatives are 96 W WAIVER. of defense does not always give jurisdiction 28, 29 of defense may in certain cases give jurisdiction ... 30 of right to jury trial 32 as a form of estoppel 75, 76 of certain requisites in insurance policies 76 failure to make tender may be, of certain rights ... 151 WASTE. as between agreed vendor and vendee 83 at common law and in equity 165-168 basis of relief in 166 between co-tenants 166 non-payment of taxes as 167 failure of life tenant to insure as 167 between mortgagor and mortgagee 167 against life tenant 167 certain kinds not enjoined 167-168 in 168 WATER. escaping, as a nuisance 174 stoppage of, as a nuisance 175 pollution of, as a nuisance 175, 177, 178, 179 obstruction of naviagable, as a nuisance 176 WIFE. (see HUSBAND AND WIFE; DOWER; MARRIED WOMEN). her equity to a settlement " 15 252 INDEX WILLS. (see ADMINISTRATOR AND EXECUTOR; LEGACY). conversion ordered in 77, 79 rights of devisees, where testator made contracts to sell land 82 mistakes in, not remedied in equity 95 agreements to compromise, enforced 119 WRITS. ancient precedents for 3 WRITS OF ENTRY. as a method of relief from fraud 98, 99, 100 after a special attachment at law 104 adequacy of, as a bar to equitable action 163, 171 WRITTEN INSTRUMENTS. (see DEEDS; LOST INSTRUMENTS; SEALED INS- STRUMENTS). conversion in 77 alteration or mutilation of, relief from 88 relief from results of mistake in 94-98 mistakes in, inter vivos 94 et seq when donor may have relief 95 wills not reformed 95 how and when mistake in, is relieved 96-98 evidence required to reform 97-98 UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. JAN 221968 FEE 5 1 8 1969 FEE 2 5 1969 MAR 1969 Form L9-Series 444 A 000 692 078 9