SCHOOL OF LAW UNIVERSITY OF CALIFORNIA Los Angeles GUT OF Roscoe Pound l^^j CASES ON EQUITY JURISDICTION IN TWO VOLUMES EDITED WITH SUNDRY NOTES AND REFERENCES BY JAMES BROWN SCOTT A.M. (HAltVARD) ; J.U.D. ( HEIDELBERG) SOLICITOR FOR THE DEPARTMENT OF STATE PROFESSOR OF INTERNATIONAL LAW IN THE GEORGE WASHINGTON UNIVERSITY S0METI;ME PROFESSOR OF LAW IN COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK Not of the letter, but of the spirit: for the letter killeth, but the spirit giveth life. 2 Cor. 2:6. VOLUME I. NEW YORK BAKER, VOORHIS & COMPANY 1906 J T 1906 Copyright, 1906 By Baker, Vooriiis & Company TO GEORGE W. KIECHWEY FRIEND AND FORMER COLLEAGUE 7927fi6 PREFACE The present collection is meant to be a first book in equity. It is, therefore, an introduction and a guide, and as such deals with funda- mental and underlying principles. It is believed that there is a place for such a work, and that a thorough familiarity with the essentials of the subject should precede the detailed study of the various topics of equity jurisprudence. For this reason the first four hundred pages of the work deal with the origin, the nature, the extent and limitations of equity, the inter-rela- tion of law and equity, and the principles and maxims controlling the administration of equity. The cases selected for this part of the work do not merely illustrate: they develop the doctrine, and it is believed that a careful study of the various cases composing this part will prepare the student to cross the threshold and examine in detail with fulness of knowledge the various phases of the subject. It may be a source of surprise to some, and provoke not a little criti- cism, that the maxims should be treated in a work of this kind, for a maxim is supposed to be so general in its nature as to be inapplicable to a specific state of facts. That is perhaps true in common law where the maxims are wholly artificial : it is not true in equity where the maxims are natural, fundamental, and express in a happy form the compressed wisdom of centuries. If the maxim be not a truth in and for itself it nevertheless points the way to truth. It was therefore thought that a collection of cases developing the underlying principles, eventually crys- talized into a maxim, would be a genuine service to the student. Should this view be unjustified it is a simple matter to skip this portion of the book. In some instances the cases within a section are arranged logically; in others chronologically, as seemed best to suit the purpose in hand. The old cases have been constantly consulted, following in this respect the advice of my Lord Coke : "That in reading of these or any new reports, he neglect^ not in any case the reading of the old books of years reported in former ages, for assuredly out of the old fields must spring and grow the new corn." vi PEEFACE Even a casual examination of the book must disclose the fact that a constant and serious efiort has been made to select leading cases, and of these leading cases to select those decided by judges whose names add an additional weight to the authority of the case. Law is not a craft : it is a profession, and its history is both ancient and honorable. It is felt that association with the illustrious names in equity may call the student's attention to the traditions of the profession. The names of Nottingham, North, Macclesfield, Hardwicke, Thurlow, Eldon, Cotten- ham, Westbury, Cairns, Sir William Page Wood (Lord Hatherley), among the chancellors; Sir Joseph Jekyll, Sir William Grant, Lord Langilale, and Sir George Jessel among the Masters of the Rolls, and the Chancellor of Ireland, Lord Redesdale, should thus become familiar to the student. In our own country the decisions of Chancellor Desaussure and of Chancellor Kent have been freely drawn upon. Indeed the collection may seem at times to be based in large part upon the masterly, learned and profound decisions of Chancellor Kent. The Editor is deeply indebted to Mr. Joshua R. Clark, Jr., Assistant Solicitor for the Department of State, for constant assistance in the selection and annotation of cases; to Christopher B. Wyatt, Esquire, of the New York Bar, who rendered a similar service in the preparation of the Editor's cases on Quasi-Contracts ; and to Professor William C. Dennis, Assistant Solicitor for the Department of State. There is like- wise due a grateful acknowledgment of library courtesies extended by Professor George W. Kirchwey of Columbia University, and Dr. George Winfiold Scott, Custodian of the Law Library of Congress. The publishers placed Judge Keener's elaborate collection of cases at the disposal of the Editor, and while the present collection is independent as regards classification, arrangement and selection. Judge Keener's three volumes have been freely laid under contribution. It is perhaps proper to add that a collection of cases on Equity Pleading will be puldished shortly. This volume will bo separate and distinct, but may be used, it is hoped, in connection with the jiresent collection. Recalling tlw advi<'e of Lord Coke that the old books of the law be not neglected, the Ivlitor niipropriatos the concluding remarks of an apt addrcs/i to "llic gentle reader" prefixed to Sir Thomas Ireland's Abridge- ment of Dyer's Reyjorts: "You have iieen lately pleased to accept of a former peece of his. PREFACE vii which imboldeneth me to present you with this further fruit of his labors in the like nature, for the generall good of the Common»wealth. If any errors have passed the Presse, blame the Printers; I humbly conceive I have more reason to be sorry for that than yourself." And, finally, should any fellow-worker in the fields of Equity stand aghast at the crowd of familiar faces that rush upon him as he turns the pages of the present collection, he is referred to the lines of Mr. Rudyard Kipling that so deftly disclose the wiles of casebook making: When 'Onier smote 'is bloomin' lyre, He'd 'eard men sing by land an' sea ; An' what he thought 'e might require, 'E went an' took — the same as me! The market-girls an' fishermen, The shepherds an' the sailors, too, They 'eard old songs turn up again. But kep' it quiet — same as you! They knew 'e stole ; 'e knew they knoAved. They didn't teU, nor make a fuss. But winked at 'Omer down the road, An' 'e winked back — the same as us! Thus does the spirit of Poesy illumine, for one brief moment, law and equity. James Brown Scott. September 1, 1906. CONTENTS OF VOLUME I. PART I. Origin, Nature, Extent, and Limitations of Equity Jurisdiction. . 1 CHAPTER I. Origin, Growth, and Development of Equity 1 CHAPTER 11. Equity Jurisdiction is Exclusive, Concurrent or Auxiliary 31 Sec. 1. Exclusive Jurisdiction 31 Sec. 2. Concurrent Jurisdiction -±1 Sec. 3. Auxiliary Jurisdiction 45 CHAPTER III. Grounds of Equity Jurisdiction 58 Sec. 1. No Legal Right or Remedy 58 Sec. 2. Inadequacy of Legal Right 86 (a) Inadequacy of Damages 86 (h) Impracticability of legal remedy 97 Sec. 3. Discovery as a Source of Equity Jurisdiction 113, 45 Sec. 4. Jurisdiction over Part is Jurisdiction over the Whole. . . . 113 Sec. 5. Multiplicity as a Ground of Jurisdiction 124 CHAPTER IV. Fundamental Principles and Maxims Controlling the Administra- tion of Equity 133 Sec. 1. General Principles 133 Equity will not act when there is a legal remedy — unless the remedy is inadequate or doubtful 133 Equity will not be ousted because law courts have adopted an equitable remedy 138 Equity acts according to established rules 145 Equity acts only on a property right 149 X CONTENTS Copyrights — Patents — Franchises 160 Right of Privacy 178 Equity criminal jurisdiction 208 Libel or slander 228 Sec. 2. Maxims of Equity 233 (a) Equity acts in personam 233 (h) There is no right without a remedy 255 (c) He who seeks equity must do equity 264 (d) He who seeks equity must come with clean hands. 278 (e) Equity follows the law 288 (f) Equity looks to the intent rather than to the form. 300 (fir) Equity regards that as done which ought to be done 310 (h) Equity imputes an intent 324 (i) Where the equities are equal, the one prior in time prevails 329 (;') Where the equities are equal, the law prevails. .. . 340 (1-) Equality is equity 360 (Z) Equity aids the vigilant 377 CHAPTER V. Equitable Rights 399 Se( . 1. Accident 399 Sec. 2. Mistake 430 Sec. 3. Fraud 455 Sec. 4. Notice 498 Sec. 5. Estoppel 553 Sec. 6. Conversion, Reconversion, Election 594 PART 11. Remedies 642 CHAPTER I. In.J UNCTIONS 642 Rkc. 1. Waste 642 Sec. 2. Trespass 679 Sec. 3. Nuisance 717 Si:c. 4. Lai!(i|{ Displtes 763 TABLE OF CASES A. B. V. J. R Abrahall v. Biidd Ackroyd i\ Smithson Agnes Bale's Case Allen V. Dingley Allen V. Imlett Alleyn v. Alleyn Allfrey v. Allfiey Allison, ex parte Andrews v. Andrews Andrews v. Frierson Anonymous Anonymous Anonymous Anonj'nious Anonymous Anonymous Anonymous Anonymous Atkinson v. Leonard Atkinson v. Miller Att'y-Gren'l v. Fitzsimmons Att'y-Gen'l v. Manchester Baines v. Baker Barnsley v. Powell Barrington, In re Barrow v. Rhinelander Basset v. Nosworthy Bateman v. Hotchkin Bawdes v. Amhurst Beard v. Nutthall Bedford v. Backhouse Bernard's Case Berry v. Mutual Insurance C< Bewick v. Whitfield Blades v. Blades Blake v. Hungerford Blandy v. Widmore Bodly V • Bold V. Corbett Boulton r. Bull > Brace v. Duchess of IMarl- borough Bracebridge v. Bracebridge 80 Bradish v. Gee 636 059 Brady v. Waldron 601 G21 Brandlyn i\ Ord 501 97 Brandreth v. Lance 228 253 Breverton's Case 80 65 Brewer v. Herbert 425 598 Brown v. Allen 363 394 Bryant v. Peek 493 222 Bunn V. Winthrop 301 447 Burgess v. Wheate 58 108 Burgess v. Wheate 316 363 Burrowes v. Lock 559 133 Bush t'. Boutelle 317 133 Butler V. Buckingham 67 299 Buxton V. Snee 290 365 403 Cadman v. Horner 284 655 Calhoun v. Millard 388 660 Campyn Pynell's Case 250 138 Cannel v. Buckle 100 308 Carfoot V. Carfoot 594 724 Carleton v. Bridgman 253 721 Carter ii. Carter 345 Casborne v. Scarfe 33 720 Cave V. Cave 517 419 Champernoon i\ Gubbs 259 677 Chesterfield v. Janssen 455 469 Child V. Stephens 365 340, 498 Clare i\ Bedford 584 676 Clark V. Abbot 331 458 Clarke v. Franklin 628 300 Clench i\ Witherly 304 530 Company of Stationers' Case 160 646 Connolly i->. Branstler 583 0. 331 Coosaw Mining Co. v. South Caro ~ 676 lina 729 535 Corning v. Lowerre 734 329 Cotes V. Preston 252 326 Coulson V. White 679 278 Coulson V. White 720 301 County of Warren i\ Marcy 529 163 Courthope v. IMapplesden 684 Cowell r. Edwards 42 330. 350 Cow]>er V. Cowper 296 100 Craig r. Leslie 611 TABLE OF CASES Crockford r. Alexander Croton Turnpike Co. v. Ryder Crouch V. Martin Crowder v. Robinson Curteis v. Wormald Cuthbert v. Peacock Dalston v. Coatsworth Davie v. Beardsham Deacon v. Smith Deeth v. Hale Dempsie v. Darling Dering v. Winchelsea Dillon V. Heller Doherty v. Allman Dolliver v. Dolliver Douglass V. Wiggins Draper v. Borlace Earlom v. Saunders Edmunds v. Povey Edwards v. West Ellison V. Moffatt Emanuel College v. Evans Emperor of Austria v. Day Kossuth Erhardt v. Boaro Evroy v. Nicholas Ex parte Allison Ex parte Greenway Ex parte King Eyre v. Burmester FiiMiiing V. Dunham Farrant v. Lovcl Fletcher v. Ashburner Ford r. Hoskins Frederick v. Frederick Freeman v. Goodham Frost 17. Beekman Fry V. Porter Fulton r. l.oftis (Inrcejon, In re (Jiirdnor v. TruHtees (inrHon v. fireon (Joe t'. Pritchard (Jetchcll V. .Tcwott (lilbert v. SJinwermnn (lillcHpic V. Moon (;..d(') llunsden v. Chcyney 555 ■i:i7 /)/ /•(■ IJariiiigton 677 l')77 hi n: (Jarcclon 77 TABLE OF CASES In re Read & Huggonson Ireson v. Dcnn •Jackson v. Hammond Jeffreys v. Jeffreys Jerome v. Ross Jersey City P'nt'g Co. v. Jesus College v. Bloome Joan, Queen of England v John Horsnionger's Case Kane v. Vanderburgh Kemp r. Pryor Kennoule v. Bedford King, Ex parte King V. Arundel King V. Blundaville King V. Stuart King V. Twine Kirrington v. Astey Klie V. Von Broock Kopper V. Dyer Lake v. Gibson 367 Lambton v. Mellish 744 Xiammont's Heirs v. Bowly's Heirs 433 Lancy v. Randlett 409 Lanoy v. Athol 374 Lansdowne v. Lansdowne 650 Lawes v. Bennet 602 Leather Cloth Co. v. American Leather Co. 171 Legh V. Legh 83 Le Neve v. Le Neve 536 Lennon v. Napper 103 Littleton v. Burgess 218 Livingston v. Hubbs 470 Livingston v. Livingston 689 Livingston r. Van Ingen 164 Loker v. Rolle 259 Low V. Bouverie 565 Lowndes v. Bettle 697 Lowther v. Carleton 501 Lynch v. Metropolitan El. R. Co. 124 Lynch v. Sumrall 116 McCormick v. Grogan 241 McGowin v. Remington 90 McMullen r. Hoffman. 280 Mackreth r. Symmons 71 Manning v. Manning 147 Margrave v. Le Hooke 265 226 Marvel v. Ortlip 269 Massi V. Lavine Llaxwell V. Mountacute 415 Mayor v. Pilkington 303 Mayor v. Slaughter 692 Maytin v. Hoper Cassidy 768 Megod's Case 115 ,642 Merchants' Nat. Bank v. Paine . Bishop 208 Methodist Episcopal Church 233 Jacques Meux V. Cobley 661 INIichigan v. R. R. Co. 141 Milkman v. Ordway 364 Minturn v. Seymour 265 Mitchell V. Dors 406 Mogg V. Mogg 646 Mollineux v. Powell 712 Mortimer v. Cottrell 81 Mountain Copper Co. v. U. S. 324 Murray v. Ballou 668 Murray v. Lylburn 400 Mynn v. Cobb Neilson v. McDonald Nelthrop v. Hill Newly V. Chamberlaine Newton v. Swazey Nicholls V. Nieholls Northern Counties t\ Whipp Ocean City Assn. v. Schurch Ord V. Johnston Ormonde t'. Kynersley Osgood V. Franklin Packington's Case Parker v. Dee Parker v. Lilly Parsons v. Welles Pavesich v. New England Life Ins. Co. Pearce v. Creswick Pearne v. Lisle Peek V. Peek Penn v. Lord Baltimore Penny v. Martin Peter v. Rich Petetson v. Shelby Phelps V. Sage Phillips V. Phillips Phillips V. Phillips 561 286 461 210 258 364 64 130 08 665 589 119 302 682 679 664 681 759 520 526 144 482 361 258 109 481 353 215 40 653 422 649 113 83 35 194 117 86 463 236 454 41 646 34 333 511 TABLE OF CASES Pickering v. Kelling 300 Pierson v. Hutchinson 411 Pillsworth V. Hopton 681 Plumb V. Fluitt 543 Pope V. Onslow 265 Powell f. Powell 419 Powers' Appeal 264 Prentice v. Janssen 639 Proof r. Hines 479 Pusey V. Desbouvrie 430 Pusey V. Pusey 86 Rau V. Von Zedlitz 487 Read & Huggonson, In re 226 Rees V. \Yatertown 2G0 Reigal v. Wood 4G6 Reynolds v. Burgess Sulphite Co. 45,113 Rice V. Rice 334 Rich V. Sydenham 278 Roberson v. Folding Box Co. 178 Robinson v. Patterson 587 Rolt V. Lord Somerville 647 Roscarrick v. Barton 32 Ross V. Conway 474 Ross V. Singleton 579 Roswell's Case 256 Rowles V. Rowles 404 Rushnier v. Polsue & Alfiere 746 Russell & Wife v. 251 Salt i;. Chattaway 630 Saull V. Browne 212 Savage v. Foster 576 Scudaniore v. Scudamore 315,596 Seeley v. Jago 635 Sherly v. Fagg 343 Sherry v. Perkins 766 Hhiibrick v. Yuerard 687 Shuttlcworth v. Laycock 264 Sibley v. Baker 371 Simon Brit's Case 98 Simmons Creek Coal Co. v. Doran 549 Sir Simeon Stewart's Case 306 Skelton v. Skelton 656 Smith V. Chixton 625 Smith V. Clay 379 Smith XI. Collyer 683 Soltau V. Delield 717 Sourwine v. Supreme Lodge 320 Springhead Spinning Co. v. Riley 763 State V. Ohio Oil Co. Steel V. Dixon Sterry v. Arden Stevens v. Beekman Strawberry Valley Cattle Co. Chipman Swaine v. Railway Co. Sweeny v. Williams Teasdale v. Teasdale Thallhimer v. Brinckerhoff Thomas v. Oakley Thynn v. Thynn Toller V. Carteret Toilet V. Toilet Townsend v. Kilmurrey Turner v. Turner Underwood v. Swain United States v. Kirkpatrick Usqe's Case Vicksburg Waterworks Vicksburg Co. Wakeryng v. Baillie Warmstrey v. Tanfield Watson V. Hunter Watson V. Sutherland Watts V. Ball Watts V. Creswell Waj't V. Carwithen Werner v. Rawson Wheeler v. Smith Wheelock i\ Noonan White V. Love joy Whitfield v. Bewit Whitfield V. Fausset Wicknuin v. Robinson Wilcocks i;.* Wilcocks William Sysel's Case Williams v. Day Williams v. N. Y. C. R. R. Co. Willie V. Lugg Wollstoncroft r. Long Woml)ell V. Belasyse Wood V. Mann Wood V. Midgley 731 374 502 688 712 743 141 558 85 685 457 235 420 288 211 404 392 99 169 655 74 642 134 292 584 307 450 444 94,711 415 674 409 73 324 399 646 706 266 288 654 507 462 CASES ON EQUITY JURISDICTION PART I. OEIGIN, NATURE, EXTENT, AND LIMITATIONS OF EQUITY JUEISDICTION/ CHAPTER I. ORIGIN, GROWTH, AND DEVELOPMENT OF EQUITY JURISDICTION. What is Equity? 4^ ^^^' Ec[uity is that system of justice which was administered by the High Court f ^f P y \ of Chancc'r\ in J>iiirlaiui in the exercise nf its extraordinary jurisdictijgn. ^ - .j ^ ^jf^ This definition is rather sug<,'estive tlian precise; and invites inquiry rather than answers it. But this must necessarily be so. Equity, in its technical and scientific legal sense, means neither natural justice nor even all that portion of natural justice which is susceptible of being judicially enforced. It has, when ^ * -*^ employed in the language of English law, a precise, definite and limited signifi- — cation, and is used to denote a system of justice which was administered in a particular court — the nature and extent of which .system cannot be defined in a single sentence, but can be understood and explained only by studying the historj' of that court, and the principles upon which it acts. In order to begin to understand what equity is, it is necessary to understand what the English High Court of Chancery was, and how it came to exercise what is known as its extraordinary jurisdiction. E_veix_true definition of eqiiity must, therefore, be, to a greater or less extent, a history. — Bispham, Principles of Equity^ (Tni"ed:y,c. i. "By Juridical Equity is meant, a systematic appeal for relief from a cramped administration of defective laws to the disciplined conscience of a competent magistrate, applying to the special circumstances of defined and limited classes of civil cases the principles of natural justice, controlled in a measure as well by considerations of public policy as by established precedent, and by positive provisions of law." — Phelps, Juridical Equity § 143. In the Doctor and Student (Dial. 1, chap. 10), equity is thus described: "In some cases it is necessary to leave the words of the law, and to follow what reason and justice requireth, and to that intent equity is ordained; that is to say, to temper and mitigate the rigor of the law. * * * And so it appeareth that equity taketh not away the very right, but only that that seemeth not to be right by the general words of the law. ♦ ♦ » Equity is 'Lack of space has n^ade it necessary to omit from these extracts the various citations made by the different authors. The serious minded student may easily ". obtain them by referring to the original works. 2 WHAT IS EQUITY? righteousness that eonsidereth all the particular circumstances of the deed, which is also tempered with the sweetness of mercy." In Grounds and Rudi- ments (pp. 5, 6) it is said: "As summum jus summa est injuria since it cannot consider circumstances, and as equity takes in all the circumstances of the case, and judges of the whole matter according to good conscience, this shows both the use and excellency of equity above any prescribed law. * * * Equity is that which is commonly called equal, just, and good, and is a mitigatioti and moderation of the covimon law in some circumstances, either of the matter, person, or time; and often it dispenseth with the law itself. » * ♦ The matters of which equity holdeth cognizance in its abso- lute power are such as are not remediable at law: and of them the sorts may be said to be as infinite almost as the different afTairs conversant in human life. * * * Equity is so extensive and various that every particular case in equity may be truly said to stand upon its own particular circumstances ; and therefore, under favor, I apprehend precedents not of that great use in equity as some would contend, but that equity thereby may possibly be made too much a science for good conscience." In Finch's Law (p. 20) it is said: " The nature of equity is to amplify, enlarge, and add to the letter of the law"; and in the treatise called Eunomus (Dial. 3 § 60) it was called "the power of moderating the summum jus." Lord Bacon adds the weight of his authority to this view, saying in one place : " Habent similiter Curias Pra-toriae potestatem tam subveniendi contra rigorem legis, quam supplendi defectum legis" (the court of chancery in like manner has the power as well of relieving against the rigor of the law as of supplying its defects) ; and in another: "Chancery is ordained to supply the law, and not to subvert the law." Lord Kames states the same theory without any limitation (Kames's Eq., Introd., pp. 12, 15) : " It appears now clearly that a court of equity commences at the limits of the common law and enforces benevolence where the law of nature makes it our duty. And thus a court of equity, accom- panying the law of nature in its general refinements, enforces every natural duty that is not provided for at the common law. * » * ^ court of equity boldly undertakes to correct or mitigate the rigor, and what in a proper sense may be termed the injustice of the common law." In the well-known treatise called Fanblanque on Equity, the author says (b. 1, chap. 1, § 3) : " So there will he a necessity of having recourse to natural principles, that what is wanting to the finite may be supplied out of that which is infinite. And. this is properly what is called equity, in opposition to strict law. « * * And thus in chancery every particular case stands upon its own particular circumstances; and although the common law will not decree against the genera! rule of law, yet chancery doth, so as the example introduce not a general mischief. Every matter, therefore, that happens inconsistent with the design of the legislator, or is contrary to natural justice, may find relief here. For no man can be obliged to anything contrary to the law of nature; and indeed, no man in his senses can be presumed willing to oblige another to it. IJut if the law hath determined a matter with all its circumstances, equity cannot intermeddle." The same large view of equity has sometimes l)cen taken by the earlier judges, but not to any considerable extent since the Reformation. The following example will suffice: In Dudley v. Dudley, Proc. Ch. 241, 244, Sir John Trevor, M. R.. said: "Now, equity is no part of the law, but a moral virtue which qualifies, moderates, and reforms the rigor, hardness, and edge of the law, and is a universal truth. It does also EQUITY IN THE COMMON LAW COURTS 3 assist the law where it is defective and weak in the constitution, which is the life of the law; and defends the law from crafty evasions, delusions, and new subtleties invented and contrived to evade- and delude the common law, whereby such as have undoubted right are made remediless. And this is the office of equity, to protect and support the common law from shifts and con- trivances against the justice of the law. Equity, therefore, does not destroy the law, nor create it, but assists it." I shall end these citations by a quota- tion from Chancellor D'Aguesseau, the great French jurist (ffiuvres, vol. 1, p. 138) : " Premier objet du legislateur, d6positaire de son esprit, compagne inseperable de la loi, Tequit^ ne peut jamais §tre contraire & la loi m6me. Tout ce que blesse cette equite, veritable source de toutes les lois, ne resiste pas moins i la justice." — Pomeroy, Equity Jurisprudence, ('Srd ed.) vol. 1, p 48, note. Equity in the Common Law Courts. We have seen that the Common Law was founded on certain fixed prin- ciples, and that it was only by set forms of procedure that rights could be enforced aiid secured, or civil injuries redressed. It has ahvays been held by the great oracles of the law that the principles of the Common Law are founded on reason and equity ; and so long as the Common Law was in the course of formation, and therefore continued to be a lex non scripta, it was capable — as indeed it has ever continued to be, to some extent — of not only being extended to cases not expresslj^ provided for but which were within the spirit of the existing law, but also of having the prin- ciples of equity applied to it by the judges in their decisions, as circumstances arose which called for the application of such principles. This was more especially open to the judges as regards defences to actions which were not founded on writs, and were therefore under their own control. But in course of time, a series of precedents was established by the decisions, or responsa, as Bracton calls them, of the judges, which were considered as of almost equally binding authority on succeeding judges as were the acts of the legis- lature; and it became difficult to make new precedents without interfering with those which had already been established. Hence (though new prece- dents have ever continued to be made) the Common Law became, to a great extent, a lex scripta, positive and inflexible; so that the rule of justice could not accommodate itself to every case according to the exigency of right and justice. — 8pe)we^ Equitable Jurisdiction of The Court of Chancery, vol. 1, Part 2, B. 1, C. 1, pp. 321—322. The Chancellor, Before dealing in detail with the reference of petitions to the Chancellor, which led to the conferment upon him of an extraordinary jurisdiction anal- ogous to that of the King, Council and Parliament, it will be convenient to consider shortly the position of the Chancellor in and before the reign of Edward III. His office as the King's Secretary, Chaplain of his Chapel, and Keeper of his Seal was a very ancient office. Coke declares that it had existed from extreme antiquity, and it certainly existed before the Conquest. By reason of his position^as custodian of the Great Seal he was the head of the office in which the King's Charters were inrolled, and whence the original writs were issued, in the manner already described. All the petitions to Parliament and the Council passed through this office, and the records concerning them 4 THE CHANCELLOR were there inrolled, and, Mhere relief was granted upon them, as for instance that the judges should proceed with an action, it was usually carried into effect by a writ close out of the Chancery. From the time Becket held the oflBce it became of importance and dignity next after that of the Justiciar only. William Fitz Stephen, one of Becket's Clerks, describes the Chancellor as sealing all the King's ordinances and being present, even though unsummoned, at all his councils. Nothing was done without the Chancellor's consent and advice either in the Curia or in the Exchequer. It does not appear that he regularly held any court of his own before the reign of Edward II., and the antiquity assigned by Coke and Blackstone to his Common Law jurisdiction is far too gi'eat. Fleta, writing in the reign of Edward I., merely refers to his control over the issue of writs, and says nothing of his holding any Court. He does say, however, that recognizances and contracts were inrolled in the Chancery, and judicial writs issued to the Sheriffs to enforce them out of the Chancery, just as by the judges themselves. If the recognizance were newlj- en- rolled, when the creditor came to complain of the non-observance of the agree- ment, immediate execution issued, but if it were not, the debtor was summoned on a certain day to show cause why execution should not bo had, and if he appeared and said nothing in point, or failed to appear, the writ to the Sheriff issued. " Ex hac quidem constitutione," adds the writer, " oriuntur brevia judicialia in cancellaria sicut coram ipsis justiciariis." The Statute of Mer- chants 13 Edward I. which created the Statute Staple, expressly reserved the power of the Chancellor and Justices to take recognizances in form by law, usage and manner provided. Perhaps in the^se inquiries may be found the first beginning of the Chancellor's separate jurisdiction. It is clear that by the date now considered the Clianccllor was looked upon as a judicial personage. Becket, Chancellor under Henry II., was panegyrised as " qui regni leges can- cellat iniquas, et mandata pii principis sequa facit," and Neville, Chancellor under Henry III., is referred to as " singulis sua jura, pra?cipue pauperibus, juste reddens et indilite." He was too, as we have seen, the President of the Council, which was greatly occupied with judicial work, and since the fall of Hubert dc Burgh and the abolition of the Justiciarship, he was in fact ' head of the law ' in the kingdom. So important had his office become that, from the reign of Henry III. onwards, continual demands were made that he should be elected by the Council or Parliament, or with their assent. He had indeed already become, what Bacon's Selden calls him, ' the kingdom's darling.' The Statute 28 Edward I. c. 5 expressly associates the Chancellor with the Judges and directs him and tlicm to follow the King, " so that he may have at all times near him some sages in law Avhich be able duly to order all such matters as shall come into tlie Court at all times when need shall require." It is not then surprising that when the King or the Council appointed a delegate or commission to hear and decide jietitions, the Chancellor should have been almost invariably chosen, with or without assistants, marked out as he wnH for Hiu-h duties, not only by his connection witli tlie adininistration of the law, with the King's grants and mandates under seal, and with the presen- tation and recording of the fx't it ions, hut also by his position as a great cleric. annp'4ty ' or ' law and rcnson,' — the terms employed in the references to him — demanded. — Ktrly, Hislonj of JJijuity, ('. II. GEOWTII AND DEVELOPMENT OF CHANCERY 5 Growth and Development of Chancery. The i)erinanent C'ouuuil under the early Norman Kings consisted of the great officers of state, — the Chancellor, the great Justiciary, the Lord Treas- urer, the Lord Steward, the Chamberlain, the Earl Marshal, the Constable, and any other persons whom the King chose to appoint ; and of the two Arch- bishops, who claimed a right to form a part of every Council, public or pri- vate. Besides these were present, at times, the Comptroller of the Household, the Chancellor of the Exchequer, the Judges, the King's Serjeant, &e. This body was the ' Aula Regia,' or ' Curia Regis,' a Court which has been described in various and at first sight contradictory terms. Thus it has been called the highest Law Court, the Ministry of the King, a Legislative Assembly, &c. The apparent inconsistency of these descriptions vanishes on closer inspection, and throws great light on mediaeval history. For the ' Curia Regis ' possessed every attribute which has been ascribed to it. It was the executive. It was also a Law Court. It certainly took part in acts of legislation. Still, at the time of its existence it was no anomaly, since to the men of the eleventh century, not the combination but the severance of judicial and executive pow- ers would have appeared anomalous. The ' Aula Regia ' was in fact neither more nor less than the Court of the King; and he who was at once the ruler and judge of the whole nation, exercised the powers which he possessed, either directly (and this he did to a greater extent than modern students are apt to suppose), or indirectly, through the instrumentality of his great officers. Hence the authority of the ' Curia Regis ' was as immense and as undefined as that of the Monarch. * ♦ «• The rise of the Courts of Law made more definite the position of the Coun- cil, but the province of its authority was not marked out in the manner which would seem the most natural to a modern reader. It appears indeed at first sight a reasonable supposition, that the powers given to the Law Courts were taken away from the Council; that, in other words, the Council (which is nothing more than the ' Curia Regis ' when separated from the judicial tribunals,) and the Law Courts, occupied distinct provinces. Such an assump- tion is, nevertheless, confuted by facts. Long after the erection of the Law Courts the Council exercised considerable, though peculiar, judicial authority. This anomaly is easy to explain. The exercise of judicial power is a Royal prerogative. In every law court the King is supposed present. Originally he doubtless really presided, and administered justice, surrounded by his court (ciiria). The pressure of business soon made it impossible for him to perform all his duties in his own person, and he gradually delegated his authority to the regular judges. This delegation, however, did not strip the Crown of its prerogative. Though the King ordinarily exercised his judicial powers through judges, who acted according to set laws and precedents, it was still his right to try suits, either on his own authority or through the great men of his Council. It could, indeed, scarcely be supposed that when the King's Bench exercised its jurisdiction, as being ihe " Curia Regis coram ipso rege,' the King could not decide causes in that assembly, which was emphatically the 'Curia Regis.' This more direct exertion of the King's power was naturally and of neces- sity called into action, when for any reason the Law Courts were unable to give justice. They might fail to grant redress, either because, to use the expressive words of various ordinances, ' there was too great might on the one side, and too great unmight on the other,' or because the grievance referred 6 GEOWTH AND DEVELOPMENT OF CHANCERY to them was one which the technical rules of law did not meet. In each case the person aggrieved would naturally apply for aid to the King and his Coun- cil. In both instances the King would, among other counsellors, specially consult the Chancellor, his great legal officer. Hence the close connection between the Chancellor and the Council — a connection which, from the effects it produced, requires particular notice. At a period when the ' Aula Regia ' still constituted one individual body, one officer, the Chancellor, had, as his peculiar duty, to affix the great seal to writs, grants, &c. Hence, when the division of powers took place, he became the head of a Court, before which were brought all questions affecting the royal grants. As president of this Court, he may be considered to have exercised a jurisdiction as independent of the King's Council as did the Barons of the Exchequer, or the Justices of the King's Bench. Yet even in his capacity of Common Law Judge, the Chancellor was connected somewhat more closely with the Council than were tlie other judges, both because the passing of grants was a prerogative kept strictly in the Crown's own hands, on the e.%ercise of which the advice of the whole Coun- cil was frequently taken, and because, when the Council caused writs to be issued, it was forced to act through the Chancellor. He however, occupied another position besides that of Judge in a particular Court. As the greatest legal officer of the realm, after the office of Grand Justiciary was abolished; as an Ecclesiastic consulted by the King on all questions of conscience; as, from his possession of the great seal, having knowledge of every gi-ant made by the Crown, he was the Council's most influential Law Officer. Thus before he began to exercise an equitable jurisdiction of his own, he must, as may be certainly assumed, have been consulted about every legal matter debated in Council. All therefore who needed redress, Avhich the Law Courts could not afford, brought their complaints, either before the Council, or before the Chancellor, as the Council's highest official. Hence the union between the Chancellor's and the Council's jurisdiction. * * * The clearest view of the Council's relation to the Chancellor is given by the ordinance 8 Ed. 1. Its main object is ' that no petitions may come before the King and his Council, but by the hands of his said Chancellor and other chief ^linisters. So that the King and his Council may, without the load of other business attend to the Great business of his realm, and of other foreign Coun- tries.' Here again the Chancellor is seen acting as a member of the Council ; and the language of the Proclamation suggests the reason of the change, which, before the reign of Richard II, had taken place in the relative positions of the great law officer, and the deliberative body to which it belonged. As the Law Courts had branched off from the ' Curia Regis,' so the Chancery began to Hcparate from tlie Council. The exact steps, by which the process of sepa- ration was carried out, cannot be known. But it may readily be supposed that the pressure of other business, and a distaste to the niceties of legal discussion, )nade the Council glad to first refer matters of law to the Chancellor, and next to leave them entirely to his decision. Whatever the steps of the change, a great nltc-ation took place, and before the death of Edward III, the Chancellor decided matters of equity on his own authority, and gave assistance to those hindered by vif)leiiee from ol)taining aid throngli the regular course of law. The date of his establishment as a .Imlgr of Equity is approximately marked by a proclamation of Edward III, wliich referred matters of grace to the Chancellor's decision. Though, from al>out tliis date, the Chancellor exercised GROWTH AND DEVELOPMENT OF CHANCEEY 7 an independent jurisdiction, the Council's power suffered no diminution. Both the Council and the Chancellor aided those whom Common Law was unable to protect. Both the Chancellor and the Council enforced obligations binding in conscience though not in law. Attacks made on the power of the Chancellor are attacks on the authority of the Council, — and the Council in Chancery can hardly be distinguished from the Chancellor's own Court. — Dicey, The Privy Council, p. 7, and p. 12 ct seq. Having thus ascertained what is the true nature and character of Equity Jurisprudence as it is administered in countries governed by the common law, it seems proper, before proceeding to the consideration of the particulars of that jurisdiction, to take a brief review of its origin and progress in England, from which country x'\merica has derived its own principles and practice on the same subject. It is not intended here to speak of the Common Law Jurisdic- tion of the Court of Chancery, or of any of its speciallj- delegated jurisdiction in exercising the prerogatives of the Crown, as in cases of infancy and lunacy: or of its statutable jurisdiction in cases of bankruptcy. The inquiry will mainly relate to its equitable, or, as it is sometimes called, its extraordinary jurisdiction. The origin of the Court of Chancery is involved in the same obscurity which attends the investigation of many other questions of high antiquity relative to the common law. The administration of justice in England was originally confided to the Aula Regis, or great Court or Council of the King, as the Su- preme Court of Judicature, which in those early times undoubtedly adminis- tered equal justice according to the rules of both law and equity, or of either, as the case might chance to require. When that court was broken into pieces, and its principal jurisdiction distributed among various courts, the Common Pleas, the King's Bench, and the Exchequer, each received a certain portion, and the Court of Chancery also obtained a portion. But at that period the idea of a Court of Equity as contradistinguished from a Court of Law does not seem to have subsisted in the original plan of partition, or to have been in the contemplation of the sages of the day. Certain it is that among the earliest writers of the common law, such as Bracton, Glanvill, Britton, and Fleta, there is not a syllable to be found relating to the equitable jurisdiction of the Court of Chancery. Fleta indeed mentions the existence of a certain office called the Chancery, and that to the office ' it belongs to hear and examine the petitions and complaints of plaintiffs, and to give them, according to the nature of the injuries shown by them, due remedy by the icrits of the King.' That the Court of Chancery, in the exercise of its ordinary jurisdiction, is a court of very high antiquity, cannot be doubted. It was said by Lord Hobart that it is an original and fundamental court, as ancient as the kingdom itself. The name of the court. Chancery (Chancellaria), is derived from that of the presiding ofiicer, Chancellor (Cancellarius) , an officer of great distinction, whose office may be clearly traced back before the Conquest, to the times of the Saxon kings, many of whom had their chancellors. Lord Coke supposes that the title 'Cancellarius' arose from his cancelling (a cancellando) the king's letters patent when granted contrary to law, which is the highest point of jurisdiction. But the office and name of Chancellor (Mr. Justice Black- stone has observed) Avas certainly known to the courts of the Roman emperors, where it originally seems to have signified a chief scribe, or secretary, who was afterw-ards invested with several judicial powers, and a general superin- tendency over the rest of the officers of the prince. From the Roman emperors 8 GRO\YTH AND DEVELOPMENT OF CHANCERY it passed to the Roman Church, ever emulous of imperial state; and hence every bishop has to this day his chancellor, the principal judge of his con- sistory. And when the modern kingdoms of Europe were established upon the ruins of the empire, almost every state preserved its chancellor, with diflerent jurisdictions and dignities, according to their different constitutions. But in all of them he seems to have had the supervision of all charters, letters, and such other public instruments of the Crown as were authenticated in the most solemn manner; and therefore when seals came in use he always had tlie custody of the king's great seal. It is not so easy to ascertain the origin of the equitable or extraordinary jurisdiction of the Court of Chancery. By some persons it has been held to be as ancient as the kingdom itself. Others are of a different opinion. Lambard, who (according to Lord Coke) was a keeper of the Records of the Tower, and a Master in Chancery, says that he could not find that the chancellor held any Court of Equity, nor that any causes were drawn before the chancellor for help in equity before the time of Henry IV. ; in whose days, by reason of intestine troubles, feoffments to uses did first begin, as some think. Lord Coke says it has been thought that this Court of Equity began in the reign of Henry *V., and increased in the reign of Henry VI.; but that its principal growth was during the chancellorship of Cardinal Wolsey, in the reign of Henry VIII. And he adds, in another place, that we find no cases in our books reported before the reign of Henry VI. Lord Coke's known hostility to the jurisdiction of the Court of Chancery would very much abate our confidence in his re- searches, if they were not opposed by other pressing authorities. Lord Hale's account of the matter is as follows: 'There were many peti- tions referred to the Council (meaning either the Privatum Concilium or Legale Concilium Regis) from the Parliament; sometimes the answers to particular petitions, and sometimes whole bundles of petitions in Parliament which by reason of a dissolution could not be there determined, were referred, in the close of the Parliament, sometimes to the Council in general, and some- times to the chancellor. And this I take to be the true original of the Chan- cery Jurisdiction in matters of equity, and gave rise to the multitude of equitable causes to be there arbitrarily determined.' And he afterwards adds: 'Touching the equitable jurisdiction (in chancery), though in ancient time no such thing was icnown, yet it hath now so long obtained, and is so fitted to the disposal of lands and goods, that it must not be shaken, though in many things fit to be bounded or reformed. Two things might possibly give original [jurisdiction], or at least much contribute to its enlargement. (1) The usual committing of particular petitions in Parliament, not there determined, unto the detorminntion of the chancellor, which was as frequent as to the Council; and swell a foundation being laid for a jurisdiction, it was not difficult for it to actpiire more. (2) By the invention of uses (that is, trusts), which were frequent and necessary, especially in the times of dissension touching the Crown. In those proceedings the chancellor took himself to be the only dis- penser of I he king's conscience; and possibly the Council was not called, either as assistants or co-judges.' We shall ])resently see how far these suggestions have Ijcen established. Lord Hardwicke seems to have accounted for tlie jurisdiction in another manner. The clinncery is the grand Officina Justitia-, out of which all original writs issue under tlie great seal, returnable into the Courts of Common Law, to fonnd |)roccc(lings in actions cotiipcicnt, to tlie Connnon Law Jurisdiction. GROWTH AND DEVELOPMENT OF CHANCERY 9 The chancellor therefore (according to Lord Hardwicke) was the most proper judge whether upon any petition so referred such a writ could not be framed and issued by him as might furnish an adequate relief to the party; and if he found the common-law remedies deficient, he might proceed according to the extraordinary power committed to him bj^ tlie reference: Ne Curia Regis defi- ceret in justitia exercenda. Thus the exercise of the equitable jurisdiction took its rise from his being the proper olhcer to whom all applications were made for writs to gi'ound actions at the common law; and from many cases being brought before him in which that law would not afi'ord a remedy, and thereby being induced tlirough necessity or compassion to extend a discretionary remedy. If (Lord Hardwicke added) this account of the original of the jurisdiction in equity in England be historically true, it will at least hint one answer to the question how the forum of common law and the forum of equity came to be separated with us. It was stopped at its source, and in the first instance; for if the case appeared to the chancellor to be merely of equity, lie issued no original writ, without which the Court of Common Law could not proceed in the cause, but he retained the cognizance to himself. The jurisdic- tion then may be deemed in some sort a resulting jurisdiction in cases not submitted to the decision of other courts by the Crown, or Parliament, as the great fountain of justice. Lord King (or whoever else was the autlior of the treatise entitled, 'The Legal Judicature in Chancery stated ') deduced the jurisdiction of the Court of Chancery from the prerogative of the king to administer justice in his realm, being sworn by his coronation oath to deliver his subjects a>quam et rectam justitiam. This it was impossible for him to do in person; and therefore of necessity he delegated it, by several portions, to ministers and officers deputed under him. But inasmuch as positive laws must in their nature consist of general institutions, there was of necessity a variety of particular cases still happening where no proper or adequate remedy could be given by the ordinary courts of justice. Therefore to supply this want, and correct the rigor of the positive law, recourse was had to the king as the fountain of justice, to obtain relief in such cases. The method of application was by bills or petitions to the king, sometimes in Parliament and sometimes out of Parliament, commonly directed to him and his Council; and the granting of them was esteemed not a matter of right, but of grace and favor. When Parliament met, there were usually petitions of all sorts preferred to the king; and the distinguishing cf these petitions and giving proper answers to them occasioned a weight and load of business, especially when Parliament sat but a few days. Accordingly in the 8th of the reign of Edward I. an ordinance passed by which petitions of this sort were to be referred, according to their nature, to the chancellor and ihe justices ; and in matters of grace, to the chancellor. And if the chancellor and others could not do without the king, then they were to bring the matter with their own hands before the king, to know his pleasure. So that no peti- tions should come before the king and his Council, but by the hands of the chancellor and other chief ministers. And hence the writer deduces the eon- elusion that at this time all matters of grace were determinable only by the king. And he added that he did not find any traces of a Court of Equity in chancery in the time, of Edward II., and that it seemed to him that the equity side of the court began in the reign of Edward III., when by proclamation he referred matters of grace to the cognizance of the chancellor. And the juris- diction was clearly established and acted on in the reign of Richard II. 10 GROWTH AND DEVELOPMENT OF CHANCERY Mr. Justice Blackstone seems to rely on the same general origin of the jurisdiction of chancery, as arising from the reference of petitions from the Privy Council to the chancellor ; and also from the introduction of uses of land, about the end of the reign of Ed^vard III. Mr. Wooddeson deduces the juris- diction from the same sdurce, and lays great stress on the proclamation of 22 Edw. III.; and also on the statute of 36 Edw. III. (stat. 1, ch. 9), which he, as well as Spelman, considers as referring many things to the sole and exclusive cognizance of the chancellor. And he adds, that it seems incontro- vertible that the chancery exercised an equitable jurisdiction, though its practice perhaps was not very flourishing or frequent through the reign of Edward III. But all our juridical antiquaries admit that the jurisdiction of chancery was established, and in full operation, during the reign of Richard II.; and their opinions are supported by the incontrovertible facts contained in the remon- strances and other acts of Parliament. At this period the extensive use or abuse of the powers of chancery had become an object of jealousy with Parlia- ment, and various efforts wei-e Tnade to restrain and limit its authority. But the Crown steadily supported it. And the invention of the writ of subpoena by John Waltham, Bishop of Salisbury, who was Keeper of the Rolls, about the 5th of Ricliard II., gave great efficiency, if not expansion, to the jurisdiction. In the 13th of Richard II. the Commons prayed that no party might be required to answer before the chancellor or the Council of the king for any matter where a remedy is given by the common law, unless it be by writ of scire facias in the county where it is found by the common law. To which the king answered that he would preserve his royalty, as his progenitors had done before him. And the only redress gi-anted was by Stat. 17 Richard II., ch. 6, by which it was enacted that the chancellor should have power to award damages to the defendant, in case the suggestions of the bill were untrue, according to his discretion. The struggles iipon this subject were maintained in the subsequent reigns of Henry IV. and V. But the Crown resolutely re- sisted all appeals against the jurisdiction; and finally, in the time of Edward IV., the process by bill and subpoena was become the daily practice of the court. Considerable new light has been thrown upon the subject of the origin and antiquity of the equitable jurisdiction of the Court of Chancery by the recent publication of the labors of the Commissioners on the Public Records. Until that period the notion was very common (which was promulgated by Lord Ellfsiiioro) that there were no petitions of the chancery remaining in the office <yond the purlieus of its immediate ofhcers and ministers. Even in the State of New York, whose rank in jurisprudence has never been second to that of any State in the Union (if it has not been the first among its peers) equity was scarcely felt in the general administration of justice until about the period of the Reports of Caines and of Johnson. And perhaps it is not too much to say that it did not attain its full maturity and masculine vigor until Mr. Chan- cellor Kent brought to it the fulness of his own extraordinary learning, uncon- querable diligence, and brilliant talents. If this tardy progress has somewhat checked the study of the beautiful and varied principles of equity in America, it has on the other hand enabled us to escape from the embarrassing effects of decisions which might have been made at an earlier period, when the studies of the profession were far more limited and the benches of America were occasionally, like that of the English Chancery in former ages, occupied by men who, whatever might have been their general judgment or integrity, were inadequate to the duties of their stations, from their want of learning or from their general pursuits. Indeed there were often other circumstances which greatly restricted or impeded a proper choice; such as the want of the due enjoyment of executive or popular favor by men of the highest talents, or the discouragement of a narrow and incompetent salary. The Equity Jurisprudence at present exercised in America is founded upon, co-extensive with, and in most respects conformable to, that of England. It approaches even nearer to the latter than the jurisdiction exercised bj- the Courts of Common Law in America approaches to the common law as admin- istered in England. The common law w^as not, in many particulars, applic- able to the situation of our country when it was first introduced. Whereas Equity Jurisprudence in its main streams flows from the same sources here that it does in England, and admits of an almost universal application in its principles. The Constitution of the United States has in one clause conferred on the National Judiciary cognizance of cases in equity as well as in law; and the uniform interpretation of that clause has been that by cases in equity are meant cases which, in the jurisprudence of England (the parent country), are so called as contradistinguished from cases at the common law. So that in the Courts of the United States Equity Jurisprudence generally embraces the same matters of jurisdiction and modes of remedy as exist in England. In nearly all the States in which Equity Jurisprudence is recognized it is now administered in the modes and according to the forms which appertain to it in England ; that is, as a brancli of jurisprudence separate and distinct from the remedial justice of Courts of Common Law. In Pennsylvania it was for- merly administered through the forms, remedies, and proceedings of the common law; and was thus mixed up with legal rights and titles in a manner noteasily comprehensible elsewhere. This anomaly has been in a considerable v J ^' degree removed by some recent legislative enactments. In some of the States in the Union distinct Courts of Equity are established ; in others the powers are exercised concurrently with the Common Law Jurisdiction by the same tribu- nal, being at once a Court of Law and a Court of Equity, somewhat analogous U REASONS FOR APPLYING TO THE CHANCELLOR to the case of the Court of Exchequer in England. In others again no general equity powers exist; but a few specified heads of Equity Jurisprudence are con- fided to the ordinary Courts of Law, and constitute a limited statutable jurisdiction. — Htory, EquUy Jurisprudence, (13t/i cd.) , vol. I, C. 2. Reasons for Applying to the Chancellor. The Court of Chancery became necessary because it was found that the Courts of Common Law were, from various causes, frequently unable to do justice to suitors. This might result from two classes of reasons: (1) from , , the inelasticity of its principles and practice; (2) from the peculiar situation. i of the parties in cases which could otherwise have been dealt with at common ' ' law, The first of these classes constitutes what came at a later date to be called equitable matters — cases to be decided in Chancery on j^rinciples peculiar to itself, and will be dealt with later. J / The second class was not concerned in any way with the doctrines of equity; (and, some time towards the end of the fifteenth century, the Court of Chan- cery ceased to deal with them altogether. In the early days of that Court, ■^ however, such cases formed by far the principal bulk of the work of the Court. A.'^ Such matters, as has already been pointed out, came within the jurisdiction of r~ the Council. A reference to the first part of this volume will show how numer- iC^ ' ous such cases were, and how varied the detail, though the same principles \o,J(iYf underlay them all. ] Most of these early cases allege some special reason why the Chancellor should interfere, and these allegations throw a useful light on the principles from time to time guiding and influencing the Court. The reasons in what I may call the Council cases, that is, those for which in theory the common law provided a remedy, are mostly concerned with the power and violence of the defendant. In case 5, we are told that the defendants will not be justified by the sheriff of the county against their will, nor will they at any time, unless the King betakes himself against them seriously. In case 6, the plaintiffs, who are the constables of a Hundred, say that they dare not perform their office unless the defendants find sureties for the peace. In case 10, the plaintiff states that no one dare bring suit against the de- fendant, as the common law demands, because of his great maintenance. In other cases — 21, 2G, 29, &c. — the plaintiff simply states that he dares not sue at common law. In case 24, tlie plaintifT would have sued at Lincoln in the King's Bench, but could not find any one who dared to act as her counsel, for fear of the defendant's malice. In ease 31, the plaintiff says piteously that he can never recover at common law because the defendant is so rich and so strong in friends in the country where he dwells. In case 35, it is stated that no writs or orders of the King will bo obeyed, and no jurors will dare to do tlicir duty in those parts, if the defendants are not punisliod. In cjiHc .'if), tlio Chancellor is asked to interfere, so that the very good laws iif \\\c King and his nol)le realm may be honestly kept, virtues exalted, and crimes and oi)preflHions of the people punished and chastised. In case 41, the defendant has so many evildoers confederated with hinj, and , written between A. D. 125G and 1250, and which is an epitome or .syste- matic institute of the common law as it then existed, exhibits in the plainest manner the results of the judicial labor and scientific study which had pre- ceded it. A considerable portion of its doctrines, and even of the terms in which its rules are stated, is taken directly from standard treatises of the day upon the Roman jurisprudence. In the language of a recent writer: " As Roman legal matters obtained reception, although the written sources of the Roman law were not at all received as having a legislative authority, Bracton properly included such Roman legal matter among the leges et consuetudines AnglifV." — Pomeroy, Equity Jiirisprndcnce, (3d ed.) , vol. 1, § 14. The question how far precedent was regarded as binding on the Court and as limiting its jurisdiction under the early Chancellors and during the present period has excited much discussion. The more popular view is that of Black- stone and Lord Campbell, which Selden and Coke, Lord Ellesmere's con- temporaries, held, and which made Whitelock, when offered the Great Seal under the Commonwealth, object to the responsibilitj', for, he said, " the judges of the Common Law have certain fixed rules to guide them ; a Keeper of the Seal has nothing but his own conscience to direct him, and that is oftentimes deceitful. The proceedings in Chancery are ' secundum arbitrium boni viri,' and this arhitrium differs as much in several men as their counte- nances differ." Spence, on the other hand, has ably argued for the opposite conclusion. If the popular opinion be correct, he says, " it is a little extraor- dinary that causes" (under the Clerical Chancellors) "should have been brought to a hearing and heard with so much of ceremony and of regard to regularity " as the records exhibit. In his opinion the Clerical Chancellors, and, to a less extent, their lay successors, introduced the doctrines of the Civil Law. and were chiefly guided by adherence to its rules, and he shows how much similarity there is between many of its doctrines and the doctrines of equity as established by the end of the present period. But the importance of this similarity may, I suspect, be much overrated. Granting that the process of discovery by the oath of the Defendant, which the Chancery borrowed from the Canon Law, and of injunction to quiet possession, which Wolsey is charged with having introduced, bear close analogies to forms of procedure allowed at Rome, it is not clear that any of the doctrines of early equity can be traced to the Civil Law, although, when the construction of legacies and gifts mortis causa, at a later date, were taken over by Equity from the Ecclesiastical Courts, no doubt the Civil Law rules in regard to them were taken also. The Civil Law. as I have already said, was referred to as a repertory of moral principles, and, as such, it was accepted, not only in our Court of Chancery, but throughout the Western World. The Law of Nature to which the pub- licists of a later age constantly referred was nothing more than the Civil Law denuded of its technicalities, and modified occasionally by contrast with the positive morality of the Christian system. In this sense the Ecclesiastical Chancellors perhaps ..referred to the Civil Law, and guided their discretion by its rules, but in this alone. The protection of trusts may have been sug- gested by the double ownerships of the older code, but such ownerships, as Already shown, were known apart from it, and the wording of the earlier 20 PKINCIPLES ON WHICH THE CHANCELLOR ACTED bill3 in Chancery would suggest that it was due to the simple principle of compelling a Trustee to give up what he had only received on an express undertaking to do so. The great doctrine of Specific Performance of obliga- tions both arising ex contractu, and apart from agreement, is wholly without warrant from the Roman Law. * * » The influence of Roman Law upon equity has several times been adverted to in this essay, and a fresh perusal of these leading eases has confirmed the opinion I have already expressed, that the earlier has directly contributed very little to the later system. In cases relating to the descent of personality on an intestacy, or under a will, the Civil Law rules were, of course, more or less adhered to, for they had been originally adopted in such matters by the Ecclesiastical Courts. Thus the House of Lords in the case of the half- blood next-of-kin heard civil as well as common lawyers, and in cases like Asburner v. Macguire (2 \V. and T. 246, 1786, ademption of legacy) and Scott V. Tyler (2 W. and T. 120, 1787, legacy giving subject to a condition in re- straint of marriage ) there was much discussion of Roman Law. The sources from which the passages from the Institute and the Digest which was cited in Equity were almost invariably taken, — the text books of Ecclesastical law, Godolphin and Swinburne, — indicate clearly the uses to which they were ap- plied. References to the Digest and the later Civilians occasionally occurred in the arguments and judgments in cases of a different character, but they were rare, and were used merely as illustrations, or in support of arguments of a general nature, as a modern lawyer might employ references to the Code of Napoleon. The definitions of fraud and negligence propounded and discussed by the Roman jurists, for example, were employed in this way, and it was no doubt for the sake of these that, at a time when the authorities of equity were certainly to be found solely in the English reports. Lord Westbury ad- vised his pupils to make a constant study of the Digest. Certainly the general opinion has long been that the debt of equity to Roman Law was much greater than that here suc;gested, and comparisons between the two systems were common in the text books of the last century. The editor of the Reports of Lord Nottingham's time, for instance, annotated them with reference to Roman Law rules, for the assistance of practitioners. It was the fashion to trace prominent doctrines to the older law: thus Lord Eldon in Mackreth v. Bymmons (1 W. and T. 355 ) traces the vendor's lien for unpaid purchase money to the rule "quod vendidi non aliter fit accipients quam si aut pretium nol)is solutum sit, aut satis co nomine factum, vel ctiam fidcn habuerimus enip- tore sine ulla satisfactione," Diq, IS. 1, 50. 11, but on turning to the earliest case where the lien was allowed, it is found to have been grounded " on natural equity, that the lands should stand charged Avith so much of the purchase mf)ney as was not paid, and that without any special agreement for the purpose." Chapman v. Tanner, 1 Vcrn. 267, 1684. — Kcrly, TJistory of Ef/uity, p. 100, and 180. Tlie general princij)lcs on wliicli tlio (^liancory was supposed to act in such matters as were not remediable nf conmion law are variously expressed by the terms ' eonscicnce.' ' gnod faith.' ' reason,' and so on, and more rarely 'equity.' One or more nf Ihcso or some similar expressions occur in nearly all the early Clmnccry bills. The rarest of these, curiously enough, is the one that has survived and given i)~ riamc to all cases of this class, equity. The wnrd <]noH nf)t ncciir in tbi« vdlninc It will be found in the writ from TTenry V to the Chancellor in lllO (Cal. i. 16, and ante p. xiii), where the Chan- WHAT IS A CHANCERY PKOCEEDING? 21 cellor is directed to do both right and equity. Also in 7 Edw. IV, 1467-8, where the Keeper is directed to act according to equity and good conscience (Cal. i. 84). The word ' conscience ' is used frequently. In case 123, unfortunately not dated, the Chancery is called the 'Court of Conscience.' Such expressions as 'conscience and law' (case 138), 'the law of conscience' (case 143), 'law and conscience' (cases 121, 136), 'law and right' (case 8, &e.), 'law, right, and good conscience' (case 121), 'right and reason' (case 26, &c.), 'reason and good faith ' (case 72), &c. &c., are common enough. — Select Cases in Chan- cery, 10 Selden Society, Introduction p. xxix. What is a Chancery Proceeding? Before going further it will be well to define what is meant by the terra ' Chancery Proceeding." Petitions to the Chancellor in his capacity as a high officer of state are found at a very early period of our legal history, and many such are found among the ' Ancient Petitions,' as they are called, preserved at the Record Office. But clearly such petitions, although addressed to the Chan- cellor, are not in any sense 'proceedings.' There are four essentials to the Chancery Proceeding: (a) a petition addressed to the Chancellor or Keeper Oy a petitioner or plaintiff complaining of (b) an alleged wrong done by some specified person or persons, and asking (c) that the person complained of may be sent for to answer the complaint, and (d) that a remedy may be provided, a. The Petition or Bill. The actual form of the petition or bill needs little comment. There is wonderfully little variation in these from the earliest known down to their abolition by the Judicature Act of 187.3. They are almost invariably in French, down to the reign of Henry V, when English forms became customary. One Latin bill occurs in this volume, No. 9. As a general rule each bill is ad- dressed at_the top to the Chancellor or Keeper, mentioning him bj^ name, or by the name of his see when he is a Bishop. By this means it is possible to date approximately many bills which it would otherwise be impossible to date. Still, a goodly number are addressed simply to the Chancellor without giving any name, and most of these cannot be dated (Nos. 123-134). The bill, as I have said, is generally addressed to the Chancellor or the Keeper, but there are some interesting and instructive exceptions. It is occasionallv addressed to the king. There are no examples in this volume, but several will be found in the Calendar already referred to. Thus, in vol. 1, p. xvi, in 1419 the king is asked to write to the Chancellor 'to do clepe the parties afor him and examine hem and make an end by twene hem of all that hangeth bitwene hem in youre courtys.' The king accordingly writes to the Chancellor to that effect — ' ye doo calle before vow bothe parties speciffied in the same supplication, and thair causes herd, that ye doo unto hem both righte and equite. and in especial that ye see that the porer partye suffre no wrong.' In this volume, case 135 is a bill addressed to the Duke of Gloucester, the Protector, early in the reign of Henry VI, asking that the plaintiff may have of the Chancellor of England a writ that is called sub poena. The most interesting variations from the usual form are those in which the Council is mentioned. No. 107, which can be dated about 1384, is addressed ' To the Chancellor pf our most redoubted Lord the King, and to his most wise Council.' No. 19, which can be dated shortly after 1396, is addressed to the Chancellor, ' and to the other most wise Lords of the Council of our most redoubted Lord the King.' We shall see hereafter that the Council sat as 22 WHAT IS A CHANCERY PROCEEDING? judges in the Court of Chancery well into the fifteenth century; it is perhaps a matter of surprise, therefore, that more petitions are not addressed to them. b. The alleged ivrong. A petition to the Chancellor must allege some wrong done to the plaintiff if it is to be considered a Chancery Proceeding, and it must be a wrong of such a nature that the remedy thereof lies outside the administrative powers of the Chancellor. For it is obvious that many complaints could be remedied by the Chancellor of his own power and authority as a high official of state without calling for anything in the nature of legal proceedings or setting the machinery of the law in motion. At the same time it must be borne in mind that it is not easy by any means to draw a hard and fast line between the administrative and the judicial functions of the Chancellor in the fourteenth and early lifteenth centuries. Perhaps the safest plan is to say that when the Chancellor was asked to send for the defendant and to hear what he had to say, then the function was judicial, but not otherwise. Such a rule, however, must not be taken too strictly. For sometimes we find a petition asking for a general remedy without mentioning any writ, even though it may be per- fectly clear from the terms of the bill that a proper investigation could not be made, and ' the full complement of justice ' could not be given without the defendant's answer. Such a case must emphatically be considered as a Chan- cery Proceeding, and nos. 105 and 109 are therefore properly placed in this volume. V\e may reasonably suppose that such cases are early ones, and that the precise remedy was not clearly understood. c. The VTrit. The third essential is the writ by which the defendant is brought before the Court. This is in by far the majority of cases the personal writ of sub poena. The same end might be secured by arrest, by venire facias, or by corpus cum causa. The sub poena was the ordinary writ; two early examples dated in 1388 and 1394 will be found in this volume, cases 7 and 11. Its history is obscure. John Waltham, who is credited with its invention (see Rot. Pari. iv. 84), was Master of the Rolls from 1381 to 1386, and a Master in Chancery during the same period. It is not known if he had previously been a Clerk in the Chancery (Foss.) If the story is true, its inception must have been before his appointment to that office, as the writ was certainly known be- fore 1381. Palgrave gives a writ of sub poena dated in 1364, and that issued upon a bill addressed to the King and Council. {Rot. Pat. 38 Edw. Ill, pt. 1, m. 15.) The question is one of slight importance, for there was another and, I think, an earlier writ for compelling the defendant's appearance. This is generally known as the quibusdam certis de causis. The name is not a happy one, for the sub poena and the premunire also begin with the same words. Indeed, the form of these first two writs is almost identical save for the pen- alty; the f)ne enjoins attendance under the penalty of a certain sum of money, the other ' sub pericuio quod incumbit,' ' sub gravi indignatione,' or some similar expression. Sec cases 2, 8, 9. 14 and 35 for examples. Thus the ' ingenious author' (as Palgrave calls him) of the sub poena, whoever he may have been, simply substituted a definite pecuniarj' penalty for an indefinite iTJrcat of something terrible. For I think there can be little doubt that tKe indefinite writ, tlic quil)usdam certis de causis, was the older writ of the twoT As to the date when each writ first made its appearance, it is difficult to find any positive evidence. FUNDAMENTAL THEORIES AND PRINCIPLES 23 d. The remedy asked for. The fourth essential of a Chancery Proceeding is that the plaintiff prays for a remedy from the Chancellor. This is frequently in very general terms, especially in early cases. Sometimes the plaintiff evidently did not know what remedy to ask for, or whether he had any at all, but left it entirely to the Chancellor's superior wisdom and good graces. Thus in Case 58 the plaintiff asks for ' such a writ as to you shall seem reasonable in this case.' — Select Cases m Chancery, 10 Selden Society, Introduction, p. xii. Fundamental Theories and Principles of Equity. From time immemorial it was one of the prerogatives of the king to ad- minister justice to his subjects. He could do this personally, or delegate the power to others, at his option. As his prerogative did not extend to legislation, he was bound to administer justice according to law, and not according to his own ideas of right, — still less according to his own fancy or caprice. It seems to have been a part of his prerogative, however, to adopt such a system of procedure as he saw fit, at least in the absence of any legislation to the contrary. At an early period it became the established course for the king to delegate his judicial power in civil causes to judges appointed by him for the purpose. This delegation, however, was not general, but was made specifically in each case, i. e., when the king was applied to for the redress of some grievance, he gave the complainant a writ, requiring the party complained of to appear before the king's judges, and authorizing the latter to take cogni- zance of the case. The writ briefly stated the nature of the complaint ; and, if the case turned out to be different from what the ^^Tit stated, the judges would have no authority to proceed, and the plaintiff failed. Originally, it would seem, the judges were authorized to mould their procedure into such form as they saw fit ; but this power was in a great measure lost in process of time, the fundamental principles of their procedure becoming so fixed by long use thp.t they were binding upon the judges as a part of the law of the land. Sometimes it would happen that a case would be presented to which no existing writ was adapted, and yet the case would be one which demanded a remedy of some kind. In that event, the king must either take direct cogni- zance of the case, or he must have a new writ framed expressly for it. For reasons which it is not necessary here to inquire into, the latter -course became impracticable at an early day, and the former alone remained. So also cases arose in which it was useless to give the complainant a writ, since the king's judges, from the nature of their procedure, could either afford no remedy-, or only an inadequate one. Of such cases, therefore, the king alone could take effective cognizance. It was in this v.'ay that the jurisdiction in equity arose. It consisted of that portion of the king's judicial prerogative' in civil causes which he had retained in his own hands, having never delegated it to his judges by writ. It is true, the king did not take cognizance of equity cases personally, any jnore than he did of common-law cases, but in legal contemplation he did: and the chancellor differed from the common-law judges in this particular among others, namely, that he exercised the king's prerogative directly, his judicial acts deriving their efficacy from the fact that, in legal effect, they were the acts of the king, the chancellor being little more than the king's secretary. This is the explanation of several peculiarities of procedure in chancery. Thus, all writs which are issued in the prosecution or defence of a suit in chan- 2i FUNDAMENTAL THEORIES AND PRINCIPLES eery must be sealed with the king^'s great seal, and are tested in the king's name, no matter how slight or unimportant the occasion upon which they are to be used : and notwithstanding the serious expense, delays, and inconvenience which are caused by what seems upon its face to be a useless form. The com- mon-law courts have seals of their own, and when they have once received author it V from the king, by writ under the great seal, to take cognizance of an action, all further writs which are necessary in its prosecution or defence are issued under their own seal, and are tested by their chief justice. But the chancellor has never had a seal of his own, and he cannot even compel a wit- ness to appear and testify, except by a writ under the great seal. The chan- cellor also has to enforce his authority by writ in cases where, upon ordinary principles, a writ is neither necessary nor proper. Thus, all the decisions of the chancellor, upon questions brought before him, are embodied in orders or decrees, which are formally drawn up in writing, and which, as will be seen presently, always direct the party against whom they are made to do or not to do something. The normal mode of enforcing such orders and decrees would be to serve them upon the parties respectively by whom they are to be per- formed (generally by showing the original and delivering a copy), and, if they refuse obedience, to punish them for contempt of the authority of the court. But in chancery the mode is, to issue a writ under the great seal, incorpo- rating in it the tenor or the substance of the order or decree, and commanding the party to perform it; and, if he refuses obedience to the writ, he is guilty of a contempt, not to the chancellor, but to the king; and hence, when the chancellor proceeds to punish him for his contempt, he adopts a mode of pro- ceeding unknown to any mere court of justice, the delinquent being treated as a rebel and contemner of the king's sovereignty. Finally common-law judges can exercise their authority only when holding a court, the delegation of authority being to the court, and not to the judges individually; and this has the effect of limiting the action of common-law courts to term time, they having no authority to sit in vacation. But as the chancellor represents the king, his autliority is pers-onal, and may be exercised at any place within the kingdom, and equally in term time or vacation. It is commonly said that the court of chancery is always open; but in truth the chancellor does not hold a court in the strict sense of the term, and hence his sessions are not formally opened and adjourned, like those of common-law courts. Bearing in mind that the king, as well as the common-law judges, was bound to administer justice according to law; that he differed from the latter in being free to adopt such a system of procedure as he thought fit; and that the necessity for resorting to the king's prerogative jurisdiction arose from the inability of the common-law courts to afford an adequate remedy for all exist- ing rights, — it follows that equity originally differed from the common law in little else than in having a different system of procedure, and thus affording different remedies, and, in particular, it follows that the court of chancery did not administer a different system of law from the common-law courts, as the ecclesiastical and admiralty courts did. Wliat, then, were the defects of the common-law procedure which gave rise to equity, and how were these defects remedied by the system of procedure adopted in chancery? The common-law j)rncedure is founded upon the theory that the parties to an action owe no obedience tf) the court. Accordingly, a common-law court never redresses a wrong done to a j)laintiff by laying a command upon a de- fendant. Thu3, if a defendant in an action detains property belonging to the FUNDAMENTAL THEORIES AND PRINCIPLES. 25 plaintiff, the court gives judjJTiient that the phiintiff recover it, and thereupon issues a writ of execution directed to the sheriff, and commanding him to put the plaintiff in possession of the property, if real; if personal, to take it and deliver it to the plaintiff. But in the latter case, if the sheriff cannot find the property, a court of common law can do nothing for the plaintiff except give him damages. The defendant may know where the property is, having pur- posely removed it or concealed it from the sheriff; still he cannot be ordered to deliver it to the plaintiff. So, if a defendant has refused to perform a con- tract, a court of common law can only give the plaintiff damages, no matter how important to the latter actual performance may be. So a defendant may threaten to do the plaintiff an irreparable injury, or he may be actually doing it, and repeating it from day to day, yet a court of common law cannot prevent it. It can only give the plaintiff damages after the injury is committed. So the power of a common-law court to enforce a judgment for the recovery of money begins and ends with issuing a writ of execution to the sheriff, com- manding him to seize the property of the judgment-debtor and apply it to the satisfaction of the judgment. If the judgment-debtor has no property that is capable of seizure, or none that the sheriff can find, the judgment must remain unsatisfied, for anything the court rendering it can do, though the judgment- debtor have millions in choses en action or in shares in incorporated com- panies. So if A has received property to hold in trust for B, the latter can have no remedy at law; for A is confessedly the owner of the property, and a court of law cannot compel him to perform the trust. Nor can a court of law make a division or partition of property among several co-owners, though it formerly attempted to do so in case of real estate. To do this successfully in any but the simplest cases, it is necessary that the court should assume con- trol over the parties. In one instance courts of law seem formerly to have departed from their principles, namely, in entertaining the action of account, i. e., an action to compel the rendering of an account; but their methods were so ill adapted to such a purpose that this action long since became obsolete. The power of common-law courts is subject to another important limitation, intimately connected with the foregoing, if it does not indeed result directly from it. They cannot deal with a controversy to which there are more than two parties or two sets of parties. The contract of suretyship will serve as an illustration of this. To such a contract, in its simplest form, there are three parties, viz., the creditor, the principal debtor, and the surety; and no two of them are united either in interest or obligation. No more than two of them, therefore, can be parties to any action at law. If there are several sureties, the case is much worse: for though they may all be sued at law by the creditor, if their obligations be joint, yet, in any controversy with the debtor in Avhich they are all interested, the law can afford no remedy; for only one of tliem can be a party to an action by or against the debtor. In other words, a court of law can only entertain a controversy between the debtor and one surety. So, if a controversy arises between the several sureties, a court of law is equally powerless, as it can only entertain a controversy between two of them. It may be added that the jurisdiction of a court of law is contentious only, that is, it is strictly limited to deciding controversies. These defects in the common-law procedure could be effectually remedied in only one way, namely, by adopting a procedure founded upon the principle of compelling litigants to do whatever the chancellor decided that by law they ought to do. Such a system was furnished by the ecclesiastical courts. It 26 FUNDAMENTAL THEOKIES AND PRINCIPLES. was not only their constant practice to adjudicate upon the duties of litigants, and to compel performance thereof specifically; but, in consequence of their having no jurisdiction over property, it was their only mode of administering justice. It is true that they were equally without jurisdiction over the bodies of litigants, and had to confine themselves to punishments of a spiritual na- ture; but, when they had exhausted those without effect, they were entitled to apply to the king for a writ of capias, upon which the delinquent was arrested and imprisoned until he submitted. In this mode, therefore, their whole judicial power was exercised. It mattered not whether a party was to be re- quired to take some necessary step in a suit, or to pay a sum of money found to be due to his adversary, or to pay costs, or to perform some more specific duty to his adversary, or to refrain from committing some wrong against him: in either case he was first ordered by the court to do or refrain from doing the thing in question; if he refused obedience he was pronounced contumacious, and excommunicated; and lastly his excommunication was signified to the king, and thereupon a writ de excommunicato capiendo was issued, upon which he was arrested by the sheriff and imprisoned in the county jail. This system, was adopted literally by the chancellor, mutatis mutandis, in the exercise of the prerogative jurisdiction ; and it has continued in use with- out change to this day. Indeed, as a rule, the chancellor, like the ecclesiastical courts, had no jurisdiction in rem, and hence could only enforce his orders and decrees by process in personam; though whether this was a cause or a conse- quence of his adopting the ecclesiastical procedure may be doubtful. To some extent, however, the chancellor has asserted and maintained the right to pro- ceed in rem. Thus, when all process against the person has been exhausted without effect, he will issue a writ of sequestration against the property of the delinquent. So when a defendant has been decreed to deliver possession of land to the plaintiff, as a last resort a writ of assistance will be issued to the sheriff to put the plaintiff in possession. But, with these exceptions, chancery exer- cises all its powers by process of contempt against the person. [After all, these are scarcely exceptions to the rule that the chancellor has no jurisdiction in rem. When he issues and enforces a writ of sequestration, or a writ of assistance, he merely exerts physical power over the possession of prop- ertj', and this he can do, though he have no jurisdiction whatever in rem. A court which possesses that jurisdiction can by its judgment or decree take the title to property out of one person and put it in another. Thus, courts of admiralty are in the constant habit of ordering the sale of property against which proceedings in rem are taken, and when property is thus sold, all exist- ing titles to it are extinguished, and the entire ownership of it becomes vested in the purcliaser. So when the property of a judgment-debtor is seized and sold to satisfy tlie judgment, the title of the judgment-debtor is as effectively trans- ferred to tiie purcliaser as if the sale had been made by tlio judgment-debtor himself. So when conunon-law courts were in the habit of entertaining suits for the partition of land, the partition was made by the court itself without any act of the owners of the property whatever. The court first rendered judgment that partition be made (quod partitio fuit) ; whereupon a writ was issued to the sheriff, dirffting him to make a partition of the land pursuant to th(! judgment, inul Kpiit the same to tlie court. When this had been done, the court rendered aiiotlicr and final judgment that the partition so made remain firm sind stable fdrever {firma et stabilis in per])e(uum tencatur) ; and by force of this latter judgment each party accjuired the exclusive title to the FUNDAMENTAL THEORIES AND PRINCIPLES. 27 share allotted to himself, and ceased to have any title to the shares allotted to the others. This power of creating and extinguishing titles the chancellor never had nor claimed to have, except when it was given him by statute. It is true thiit he frequently directed the sale of property, but it was by his con- trol over the person of the owner that he made the sale effective, i. c, when the sale had been made he compelled the owner to execute a deed pursuant to the sale; and hence, when the owner was out of the jurisdiction, or labored under any incapacity, e. g., that of infancy, the chancellor was powerless. He could not even make the appointment of a new trustee effective, e.xcept by compelling the old trustee or his heir, or whoever held the legal title, to convey to the new trustee. When it became the practice to resort to chancery for the partition of land, what the chancellor really did was, first, to inquire and ascertain how the property should be divided, and then to compel the parties to divide ac- cordingly by the execution of mutual conveyances. So when the chancellor undertook the settlement of a disputed boundary, he first ascertained what the true boundary line was, and then compelled the parties by mutual convey- ances to establish that as the boundary line. When the chancellor placed property in the hands of a receiver, the latter acquired no title to the prop- erty, but possession merely. If he had occasion to assert a title to the property in a court of law, he had to do it in the name of the owner; and if the owner brought an action against him to recover the property, he had no defence to the action, and his only security was in the power of the chancellor to punish for contempt any one who interfered with the possession of his receiver. It is often said to have been one of the functions of the Chancellor to set aside, for fraud or other sufficient cause, judgments, awards, accounts stated, convey- ances, and contracts; but this is an incorrect use of language. If a judgment had been obtained by fraud, he would enjoin the judgment-creditor from en- forcing it; if an award or an account stated was infected with fraud, he would not permit it to be used against the defrauded party, either as a cause of action or as a defence to the original cause of action ; if a conveyance of prop- erty was obtained by fraud, he would compel a reconveyance of it ; if a written instrument purporting to constitute a contract was infected with fraud, he would, in a proper case, require it to be delivered up and cancelled; but he never did nor could set anything aside by liis decree. Indeed, it may be stated broadly that a decree in chancery has not in itself ( i. c, independently of what may be done under it) any legal operation whatever. If a debt, whether by simple contract or by specialty, be sued for in a court of law, and judgment recovered, the original debt is merged in the judgment, and extinguished by it, and the judgment creates a new debt of a higher nature, and of which the judgment itself is conclusive evidence. But if the same debt be sued for in the court of chancery (as it frequently may be) and a decree obtained for its pay- ment, not one of the effects before stated is produced by the decree. Un- doubtedly it has often been said by chancellors that their decrees are equal to judgments at law, but that only means that they will, to the extent of their power, secure for their decrees the same advantages that judgments have by law : it does not mean that a decree is by law equal to a judgment. Again, if a claim be made the subject of an action at law, and judgment be rendered for the defendent upon the merits, the judgment is conclusive evidence that the claim was not well founded, and it will therefore furnish a perfect defence to any future action upon the same claim; but a decree in equity against the validity of a claim is never a defence to an action at law upon the same claim. 28 FUNDAMENTAL THEORIES AND PRINCIPLES Here again, however, the chancellor will make his decrees equal to judgments so far as it is in his power to do so; and therefore a decree in chancery against a claim upon its merits will always be a defence to any future suit in chancery upon the same claim, not as destroying the claim or as proving conclusively its invalidity, but as furnishing a sufficient reason why chancery should not again take cognizance of it. Such a decree will also be (what is sometimes called) an equitable defence to any action at law upon the same claim, i. e., the chan- cellor will enjoin the prosecution of any such action, upon the ground that the plaintiff having elected to make his claim the subject of a suit in equity, and that suit having been defended successfully upon the merits, it is not right that the defendant should be vexed again by the same claim. Accordingly, when A and B demand the same thing of C, and for that reason C, the demand being a legal one, files a bill of interpleader against A and B, and the chan- cellor decides that the thing demanded belongs to A, and awards it to him, he also directs a perpetual injunction to issue against B to restrain him from suing C at law for the same thing, and that is C's only protection. Upon the whole, therefore, the weakness of the chancellor's jurisdiction is as conspicuous as its strength ; its strength being that it can always command the obedience of suitors ; its weakness being that it has substantially no resource beyond commanding such obedience. It should be observed, however, that, while its element of strength is necessary to the existence of the jurisdiction, its element of weakness is not. The chancellor might in the beginning, like the court of admiralty, have been clothed willi the same jurisdiction in rem as in personam; but if he had been, equity would now be a very different thing from what it is, and its machinery would be very different from what it is. If the system were to be constructed anew, probably its element of weakness would be eliminated from it, and if it could be reconstructed in an enlightened manner (a thing which is not at all likely to happen), it would probably be improved. However that may be, any one who wishes to understand the English system of equity as it is, and as it has been from the beginning, must study its weak- ness as well as its strength. — Note to 2d edition.] By the adoption of this system of procedure, the chancellor was not only enabled to enforce specific performance in the numerous cases where that was obviously either the sole remedy, or the only adequate one, but to give relief in many other cases in which the common-law courts were powerless. Thus the common law can only give the plaintiff, as a rule, what he was absolutely entitled to when he brought his action. If anything then remained to be done by him to perfect his right, or if more time must elapse, or some uncertain event must happen, before his right will accrue, his action must wholly fail; and he cannot even obtain a decision of the question in controversy. But as the chancellor in any event gives relief by directing and requiring the de- fendant to do something, there is no technical difficulty in the way of his directing the thing in question to be done at some fixed future time, or upon 'lie liapjicning of some event, or ujxui the |)orf(innaiice of some condition on tlie |)art of tlie plaintiff. Sf) lie cau iiiakc it a condition of giving relief that the plaintiff shall submit to do on his p;nt wliatever shall be required of him, and the plaintiff having so s\ihmitte(l, the decree will direct performance on his part as well as on the part of the defendant. So, too, it is immaterial to the chancellor, so far as regards his ability to deal with a controversy, how many different interests it affects, or how many ditTerent parties or sets of parties luivf to lie lirord Eldon put ITardwicke. above his doubts: "There is the authority of Lord Ilardvvicke upon the point, which would weigh down tlie most con- .-idcrablc dou])t that 1 could be disposed to entertain." Ex parte Ruffin (IHOl) y<:sn/, 12(5. ' A part of the case relating' 1o the (pu'stion of estoppel by a void deed has been omitted. CHAP. II.] PARSONS V. WELLES 35 objected, alleging that no payment of the money, or settlement of the debts, after the law-day had expired, could divest the plaintiff's title, and revest it in the mortgagor, but that the remedy was by application to a court of chancery. On this principle, the Court rejected the evidence. To the ruling of the Court, in both instances, the defendant filed his bill of exceptions. Smith, (of Woodbuiy,) for the plaintiff in error. The Superior Court erred, by rejecting our testimony, to shew, that the mortgage debt was paid, to the full satisfaction of the mortgagee. By the acceptance of the money, he waived any advantage, which he might have had by the lapse of the law-day. Daggett, for the defendant in error. The payment of the mortgage money, after the law-day, could only give a right to redeem. The legal title was in the plaintiff, and would there remain until she should transfer it to another. The only relief for the mortgagor is in chancery. Infinite mischiefs would accrue, if the jury were permitted, on the general issue, to settle the business between the mortgagor and mortgagee. By the Court (unanimously). The judgment was affirmed.* PARSONS V. WELLES. Supreme Judicial Court, 1821. [17 Massachusetts 419.]' Trial was had here? on the general issue, before Wilde J. February term 1819. — The facts stated in the report of the judge, and those ap- pearing by the papers referred to in that report, are briefly these. — In January 1800, Ellis, who was the former owner of the demanded prem- ises, conveyed a part thereof in fee and in mortgage to one Willia7n Cahot, and in the following March conveyed, in like manner, another part thereof to one James Otis: after which he made and executed the two mortgage deeds, under which the demandant claims; one dated in October 1804, and the other in December 1805. These deeds to the de- mandant included the lands mortgaged to Cahot and Otis, and some other lands. The deeds to Cahot and Otis were duly acknowledged, and ^ "Now. it is well settled, in this state, that if the mortgagor pays the debt after the law day has expired, he cannot sustain an action at law against the mortgagee for the possession, nor can anyone claiming title under him. He must first get in the legal title." Per Waite, J. Doton v. Russell (1845) 17 Conn. 146, 154. - Parts of the opinion discussing the rights of a second mortgagee, the effect of particular iMassachusetts Statutes, and the powers of the mortgagee to harass the mortgagor, have been omitted. 36 PARSONS V. WELLES [part i. recorded in the registry of deeds, previously to the execution of the mort- gages to the demandant ; and have since been duly assigned to the pres- ent tenants. Ellis not having paid the money, according to his stipulations in his deeds to Cabot and Otis, they severally instituted suits against him, to recover possession of the lands mortgaged to them; and judgments being recovered by them, possession was duly delivered to them, accord- ing to their respective rights, by virtue of writs of hahere facias possessionem. Evidence was offered by the demandant, to prove that after possession was thus delivered, Ellis paid the amount due on both those mortgages. The tenants objected to the admission of this evidence, on the ground that payment alone, after the mortgagee's estate had become absolute, and after judgment for possession, and entry after condition broken, was not sufficient to defeat their legal estate. — The judge overruled this objection, not, as he states, because he thought it unfounded ; but for the purpose of settling the question of fact as to the payment, and to prevent a new trial in case the court should be of opinion that such evidence was admissible. A verdict was returned for the demandant, which was to be set aside and a new trial granted, if the evidence was inadmissible ; otherwise judgment was to be rendered on the verdict. Wilde J. delivered the opinion of the court. — The question of law arising in this case, and which is now to be determined, is, whether the evidence of the payment by Ellis was properly admitted: — or in other words, whether, after failure by the mortgagor to pay the amount due on the mortgage, and judgment recovered and possession received by the mortgagee, the payment of the principal, interest and costs does ipso facto defeat the estate of the mortgagee, so that the mortgagor may lawfully enter, or maintain ejectment for the recovery of possession. — This is a question of considerable difficulty, and leads to the considera- tion of points, upon which learned judges and jurists have held different opinions. This difference of opinion has probably arisen in part from the peculiar nature of the contract of mortgage; but principally, I appre- hend, from a disposition, in most of the judges of late years, to adopt the rules of equity; and to combine them in practice, as far as possible, with the principles and rules of the common law. Thf! antient doctrine of the common law, in respect to mortgages, was plain and well understood. By a conveyance, by way of mortgage in fee, all the mortgagor's title passes to the mortgagee; subject however to be defeated by the performance of the condition. But if the condition be not strictly performed by the mortgagor, the estate of the mortgagee becomes absolute; no right remaining to the mortgagor afterwards to redeem. " Tf he," Cthe mortgagor) says Littleton, § 3.32. "doth not pay, "then llic IjukI, which is put in pledge upon condition for the pa>Tnent "fif tlif inoney, is taken from him forever, and so dead to him upon CHAP. II.] PARSONS V. WELLES 37 " condition &c. And if ho doth pay the money, then the pledge is dead " as to the mortgagee." " In case of failure," (to perform the condition) says Blackstone, " the mortgagee may enter and take possession without "any possibility at law of being afterwards evicted by the mortgagor." 2 Comm. 158. So that a mortgage, although a pledge at first, becomes an absolute interest, unless redeemed at the time limited for the pay- ment of the money, or other performance of the condition. If it be not literally performed by payment of the money at the day, the estate becomes subject to the dower of the wife of the mortgagee, and to all other incumbrances by him ; although the money should be afterwards paid, and the estate reconveyed to the mortgagor. — Powell on Mortgages 9, 10. To avoid the inconvenience and injustice, to Avhich the mortgagor might be thus exposed, it has been usual in England to substitute mort- gages for a long term of years, for mortgages in fee: and this practice prevailed very generally, until the courts of equity interferred ; who held that the power of redemption was an equitable right, inherent in the land, and binding all persons, whether claiming in the per, that is, by the act of the mortgagee, as tenant in dower, by statute staple, elegit &c. ; or in the post, that is, by the act of the law, as tenant by the curtesy, and the lord by escheat.— Powell 11.— Cro. Car. 191.— Hard. 465, 469. But although the legal estate is absolute at law in the mortgagee after forfeiture, yet the courts of equity, after their jurisdiction became well established in England, thought that conscience and equity required them to break in upon the common law, and to grant relief by permitting the mortgagor, at any reasonable time, to redeem. Still however the courts of equity admitted the legal estate to be in the mortgagee; but they considered him as the trustee of the mortgagor until a foreclosure : thereby turning the mortuum into a kind of vivum vadium. They however allowed the mortgagee to call upon the mortgagor to redeem presently, or in default thereof to be forever foreclosed. And they gen- erally refused to interfere in favour of the mortgagor, after twenty years' possession by the mortgagee. If there were no foreclosure, nor such length of possession by the mortgagee, the mortgagor was considered the true owner, a mortgage being considered as a mere security for the debt, even after forfeiture : and of course the discharge of the debt was held to be a determination of the interest of the mortgagee, and of all claim- ing under him. 1 Vern. 361. — Powell, 141, 142. — Prec. Chanc. 99. — Bernard. 93.— 1 Ves. 361. It cannot be denied, that these principles and rules of the courts of equity have had a favourable operation in the administration of justice, and have afforded relief where, by the strict principles of the common law, the mortgagor was without remedy. They were conformable to the spirit of the mortga^ge contract, and it is not surprising that they should have gained some footing in the courts of common law. It may be doubted however, whether in some particulars they have not been adopted 38 PAESONS V. WELLES [part i. to an extent, inconsistent with the established rules of the common law. In the case of Martin vs. Mowlin, 2 Burr. 978, lord Mansfield is reported to have said, that " a mortgage is a charge upon the land ; and whatever " would give the money, will carry the estate in the land along with it, "to every purpose. The estate in the land is the same thing as the " money due upon it. It will be liable to debts ; it will go to executors ; *' it will pass by a will not made and executed with the solemnities re- " quired by the statute of frauds. The assignment of the debt, or f or- " giving it, will draw the land after it, as a consequence: nay, it would " do it, though the debt were forgiven only by parole ; for the right to the " land would follow, notwithstanding the statute of frauds." No authorities are cited in support of these remarks, and it seems to me extremely difficult to reconcile some of them with well established principles of law, or with the true intention of the statute of frauds. Judge Trowhridge was of opinion, that they were accompanied with some restrictions, which the reporter omitted to notice: because he acknowl- edges, in his preface, that he did not always take down the restrictions, with which the speaker might qualify a proposition, to guard against its being understood universally, or in too large a sense. See 8 Mass. Rep. 558. This appears to be probable, for it is impossible, as it seems to me, to suppose that lord Mansfield meant to assert that " the estate in the land is the same thing as the money due upon it," without some qualifi- cation of the expression. This would confound all our notions, and break down every distinction between real and personal estate; between a title in land and choses in action ; between mortgages in fee and mort- gages for a term; and between mortgages of land and mortgages of goods. Probably lord Mansfield intended to say nothing more than that the estate of the mortgagee is worth no more than the debt, and is dependent upon it; that the discharge of the debt, at the time stipulated for pay- ment, would defeat the mortgagee's estate ; and even payment afterwards would have the same effect, by the aid of the court of chancery: or without such aid, by virtue of the statute of 7 Geo. 2, c. 20, which pro- vides that the mortgagee shall maintain no ejectment, after payment or tender by the mortgagor, of principal, interest and costs. All this would be true, and in some measure justify the expression imputed to lord Mansfield; which, withnv;t some such restriction or qualification, cannot, I think, be held for law. Nor can it bo true, as Judge Trowhridge has shewn, by very cogent arguments, " tbnt the assignment of the debt will draw the land after it, as a consequence," to every purpose. It can only be so by the aid of a court of equity. In a court of equity the debt is the principal, and the mort- gage is the accessory. And it is there hold tliat, as the mortgagee holds the estate in trust for llic mortgagor; so when the debt is assigned, he becomes a trustee for tlic l)onefit of the person having an interest in the debt. Omne principale trahit ad se accessorium. This too was one of CHAP. II.] PAKSONS V. WELLES 39 the grounds suggested by judge Spencer, for the opinion in the case of Green vs. Hart, 1 Johns. 580, in which it was held that the transfer of a. note, secured by mortgage, being in writing, the mere delivery of the mortgage security was a sufficient assignment. It is true that judge Spencer remarks, that " mortgages are not now considered as convey- ances of lands, within the statute of frauds." I know that this opinion has prevailed in courts of equity; but I have not been able to find any decided case, to support it at law : and it appears to me against the letter and intent of the statute. But however this may be, it can have but little bearing on the point in question. It is important only, so far as it may shew the nature and quality of an estate by mortgage. The question now to be decided is, what is the remedy for the mort- gagor, after payment of the debt, if the mortgagee, having entered for condition broken, refuses to relinquish the possession. And this court are all of opinion, that it is by a bill in equity, and that this is the only remedy. This was the doctrine held by the court in the case of Hill vs. Payson & al. 3 Mass. Rep. 560; and it has been frequently so ruled at nui prius. It is a doctrine, which is well supported hy the principles of the common law, as I think I have shewn : and it is strongly implied, if not expressly declared, in all the statutes relating to the subject. The remedy thus provided is by a bill in equity; and the courts are directed, in such cases, to enter up judgment agreeably to equity and good conscience; and by the statute last referred to, they are authorized to adjudge and determine what shall be a reasonable and equitable per- formance of the condition of the deed. If the mortgagee has made dis- bursements for repairs &c. above the amount of the rents and profits, the court is to make the computation. The court also is to judge of the evidence of payment, and may decide the case without the intervention of a jury: all of which provisions are inconsistent with the forms of proceeding in real actions. Thus has stood the law of Massachusetts for more than a century. And whatever doubts may remain as to the legal estate of the mortgagee in certain cases, the remedy for the mortgagor seems to be sufficiently plain. It is an adequate and convenient remedy, and well adapted to the great end of all judicial proceedings, the doing of impartial justice to all parties. For while, on the one hand, it moderates the rigour of the common law for the benefit of the mortgagor; it compels him, on the other hand, to perform whatever justice and equity may require, for the benefit of the mortgagee. It is as beneficial to the mortgagor as a suit at law, and may sometimes be more so ; for if the evidence of payment be doubtful, the mortgagee may be compelled to answer under oath to the fact. It is certainly more beneficial to the mortgagee; for it compels the mortgagor, when he applies for equity, to do equity. If ejectment would lie for the mortgagor, upon payment of the debt, the mortgagee 40 OKD V. JOHNSTON [part i. ^\'oulJ have no remedy, to recover any disbursements, made by him for repairs; for his right to demand these depends, either upon the statute, or the rules of equity. They are unknown to the common law, which con- siders the mortgagee as the absolute owner. Some other questions have been argued, which it is now unnecessary to decide. — It is the opinion of the court that the demandant is entitled to judgment for the lands, which were not included in the mortgages to Cabot and Otis, and not for the other parcels demanded. OED V. JOHNSTON. In Chancery, before Vice Chancellor Stuart, 1855. [1 Jurist, New Series, 1063.] Tlie bill in this case alleged that the plaintiff and the defendants entered into an agreement, whereby the defendants were to be appointed solicitors for a certain railway company and were to divide the fees and income resulting from the solicitorship with the plaintiffs. The prayer of the bill was that the aforesaid agreement might be declared ; for specific performance of the agreement for an account and payment of what might be found to be due ; for a receiver and an injunc- tion to restrain the getting in and receiving outstanding monies; and for further relief. The defendants' plea having been overruled, they answered denying breach of the agreement.' Sir J. Stuart, V. C, said — This is a bill of a very unusual kind, and there are palpable objections to the relief sought by the plaintiff, both in point of form and in point of substance. These objections seem to me to be insurmountable. In point of form, the bill asks in technical language for the specific perform.ance of an agreement between the plain- tiff and the defendants of the 8th October, 1844. It asks for the specific performance of the agreement by asking an account of the profits derived by the defendants from a certain employment, in Avhich profits, according to the terms of that agreement, the plaintiff says he was entitled to share in certain proportions. The jurisdiction of specific performance is one which seems to me to be wholly ina])j)licable to such a case as this. It is a jurisdiction which is always said to be discretionary in the Court. It is a jurisdiction assumed by this Court for the more perfect administra- tion (if justice — for giving to persons having a right under an agreement tbc very specific thing according to the provisions of the agreement, and is intended to give more (>ffectual relief in the case to whicli it applies; because, according to proceedings of Courts of law upon the breach of 'A Hhortoncd Htiitoiiifiit of facts is s\il)stit\itod for that of the report. tii.u'. II.] PETER V. RICH 41 an agreement, what a Court of law does is to give compensation in money, which shall amount to an equivalent to that which the agreement had stipulated should be performed.' The whole scoi^e and object of this bill are for a purely money demand; and it is admitted by the plaintiif's counsel during their struggle against the very obvious objections to this bill with which they have had to contend, that if the mere amount of profits was ascertained, they would be entitled to recover that amount by an action at law; shewing that all that is asked from this Court in the shape of relief under the jurisdiction of specific performance is a com- pensation in money on the footing of an account." Sir J. Stuart, V. C. — Order that, the defendants not asking for costs, the bill be dismissed. Section 2. Concurrent Jurisdiction. PETER V. RICH. In Chancery, 1630. [1 Reports in Chancery 34.] That the Plaintiff and Defendant with one Southcot and Grimes be- came bound to the Lord Ruff el in two Bonds of IGOO Z. apiece for pay- ment of 800 L, 100 1, being Purchase Mony, and the Plaintiff and Defendant entred into two Counterbonds to the said Southcot for his Indempnity, and the first Bond of 800 I. was paid, and the Plaintiff and Defendants Richard Sheppard came to account, upon which the Plaintiff appeared to have paid all his part of the said Purchase Mony save 40 I. for which the Plaintiff gave the Defendant Rich alone a Bond of 80 I. and thereupon was to be freed by the said Defendants of the 800 I. Bond, and was to give over the said Purchase wholly unto them; yet notwith- standing 100 I. of the said Purchase Mony being not paid, the Plaintiff was compelled to pay the same, being formerly bound with the De- fendants in the said Bond of 1600 I. together with 5 I. Interest thereof, which said 105 I. this Court conceived ought to have been paid by the ^ The balance of the opinion relating to the doctrine of mutuality and dis- cussing the bill as one to account for personal profits, lias been omitted. - "I am of opinion that, inasmuch as this Bill prays a delivery of tho Certificates which would constitute the Plaintiff the Proprietor of a certa^in quantity of Stock, the Bill in Equity will hold: because a Court of Law could not give the Property, but could only give a remedy in Damages, the beneficial effect of which must depend upon the personal responsibility of the Party." Per Sir John Leach in Dolorct v. Rothschild ( 1823) I S. & S. 590, 598. 42 HOLE V. HAKRISON [part i. said Sheppard as the Residue of his part of the said Purchase Mony, but the said Sheppard being insolvent, the said 105 I. in the Opinion of this Court ought to be equally paid and born by the Plaintiff and De- fendant Rich, and decreed accordingly.' HOLEv. HARRISON. In Chancery, 1676. [1 Cases in Chancery 246.] Hole, Harrison and S. were bound in a recognizance to the chamberlain of London. The plaintiff Harrison was sued thereon, and paid the whole money, and now sued Hole, who was bound with him for contribution. Hole, Harrison and S. being all bound, and J. H. was dead insolvent, and S. was run away. The question was in what proportion the contribu- tion should be, viz. of a third or moiety? Decreed a moiety, for S. is insolvent.' COWELL V. EDWARDS. Court of Common Pleas, 1800. [2 B'Osanquet and Puller 268.] Indebitatus assumpsit for money paid. John Cornell the plaintiff's intestate having entered into a joint and several bond with seven other persons, two of whom were principals and the five others as well as himself sureties, was together with his co- sureties called upon by the obligees to pay the sum engaged for; the defendant and two of the other sureties paid each a part of that sum, ' In Hyde v. Tracy (1807) 2 Day 401, 494, Daggett and Goddard, counsel, received a judgment on the following statement of principle: "Chancery in- terferes not merely where there can he no remedy at law, hut where such rem- edy under all the circumstances of the case, will not meet its exigencies. In this case it might ruin the petitioner, to pay the whole, and then go to law for a contribution. In (Jreat Britain it is the constant practice to go into cliancery to obtain a contribution." ■■"'The plaintiir has ])aid under his liability as surety, a sum of fSOO: there is no question but that he is entitled to contribution from each of the other ff)ur sureties, one-fifth of the amount i)aid, that is, if all were able to pay. I'.ut F. Green is quite unable. Therefore the plaintiff has a right to recover from the other three, one-fourth of the sum paid by him." Per Sir li. T. Kin- dcrnlcy, V. €., in llitchmnn v. Stcimrt (1855) 3 Drew. 271. CHAP. II.] COLWELL V. EDWARDS 43 but the present plaintiff's intestate paid the residue. Fpon this the PJaintiff considering the Defendant and one of the two sureties who had already contributed as the only solvent sureties, called upon them to pay their proportion and now brought this action to recover from the defendant such a sum of money, as when added to what had been already paid by him would make up one-third of the whole sum paid to the obligees, deducting only what had been contributed by the fourth surety not called upon at this time. The cause was tried before Lord Eldox Ch. J. at the sittings after last Easter term, when the plaintiff obtained a verdict for a sixth of the whole sum paid, not allowing for the sum paid by the fourth surety, with liberty to move the court to enter a verdict for the whole demand. Lens Serjt. however on the part of the defendant obtained a rule call- ing upon the plaintiff to shew cause why this verdict should 'not be set aside altogether and a new trial be had. He took these objections; that this action could not be maintained at law by one co-surety against another; that if the action could be maintained for one-sixth of the whole sum engaged for and which, under the circumstances of the present case, he insisted was all that could be recovered from the defendant; yet, that the insolvency of the two principals and of the three other co- sureties should have been proved in order to entitle the plaintiff to the present verdict. Shepherd and Vauglian Serjts. were proceeding on this day to shew cause, and cited Deering v. Lord Winchelsea (1 Cox ch. 318,) ' when they were stopped by The Court, who observed that it might now perhaps be found too late to hold that this action could not be maintained at law,^ though neither the insolvency of the principals or of any of the co-sureties were proved ; "but that at all events the plaintiff could not be entitled to recover at law more than one-sixth of the whole sum paid." ' S. C. I White and Tudor's Leading Cases in Equity, pt. 1, *100, vriih. notes. ^ The whole doctrine of contribution between securities originated with courts of equity. There is no express contract for contribution ; the bonds, obligations, bills, or notes, created liabilities from the obligors to the obligees. The contribution between co-securities results from the maxim, that equality is equity. Proceeding on this, a surety is entitled to every remedy which the creditor has against the principal debtor; to stand in the place of the creditor; to enforce every security, and all means of payment; to have those securities transferred to him, though there was no stipulation for that. This right of a surety stands upon a principle of natural justice. The creditor may resort to principal, to either of the securities, for the whole, or to each for his propor- tion, and as he has that right, if he, from partiality to one surety, or for other cause, will not enforce it, the court of equity gives the same right to the other surety, and enables him to enforce it. Natural justice says that one surety having become so with other sureties, shall n. t have the whole debt thrown upon him by the choice of the creditor, in not resorting to remedies in his power, without having contribution from those who entered into the ob- 44 COLWELL v. EDWAKDS [part i.. And Lord Eldon Ch. J. said, that he had conversed with Lord Kenyan upon the subject, who was also of opinion that no more than an aliquot part of the whole, regard being had to the number of co-sureties, could be recovered at law by the defendant ; though if the insolvency of all the other parties were made out, a larger proxwrtion might be recovered in a court of Equity.' ligation equally with him. The obligation of co-sureties to contribute to each other, is not founded in contract between them, but stood upon a principle of equity, until that principle of equity had been so universally acknowledged, that courts of law, in modern times, have assumed jurisdiction. This juris- diction of the courts of common law is based upon the idea, that the equitable principle had been so long and so generally acknowledged, and enforced, that persons, in placing themselves under circumstances to which it applies, may be supposed to act under the dominion of contract, implied from the universality of that principle. For a great length of time, equity exercised its jurisdiction exclusively and undividedly; the jurisdiction assumed by the courts of law is, comparatively, of very modern date; and is attended with great difficulty where there are many sureties; though simple and easy enough where there are but two sureties, one of whom brings his action against the other upon the implied assumpsit for a moiety. — Per Bibb, C. J., Lansdale's Administra- lors and Heirs v. Cox (1828) 7 T. B. Mon. (23 Ky) 401, 403. ^"1 am of opinion that the plaintiff in this case is entitled to recover one- third of the money which he has paid on account of this annuity. In equity, indeed, in the case of Peter v. Eich 1 Cha. Ca. 34, where one of three sureties had paid a sum of money, it was held, that he was entitled to recover one moiety from another of the co-sureties, the third having become insolvent ; but I think, that at law, one of three co-sureties can only recover against any one of the others an aliquot proportion of the money paid, regard being had to the number of sureties." Per Bayley, J. in Broicn v. Lee (1827) G B. d C. 689, 697. " Again it is an equitable principle of very general application that where one person is in the position of a mere surety for another, whether he be- came so by actual contract, or by operation of law, if he is compelled to pay the debt which tlie other in equity and justice ought to have paid, he is en- titled to relief against the other, who was in fact the principal debtor. And, when courts of law, a long time since, fell in love with a part of the jurisdic- tion of chancery, and substituted the equitable remedy of an action of as- sumpsit upon the common money counts, for the more dilatory and expensive proceeding by a bill in equity in certain cases, they permitted the person thus standing in the situation of surety, who had been compelled to pay money for the principal del)tor, to recover it back again from the person who ought to have i)aid it, in this equitable action of assumpsit as for money paid, hud out and expended for his URe and benefit." Per Walworth, Chancellor, in Hunt V. Amnion (1842) 4 Hill 345, 348. "it has lonf^ been settled, that, if there are co-sureties by the same in- strument, and the creditor calls upon either of them to pay the principal debt, or any part of it, that surety has a right in this Court, either upon a principle (if cfpiity, or upon contract, to call upon his co-surety for contribution; and I tiiink, that right is properly enough stated as depending rather upon a prin- CHAP. II.] REYNOLDS v. BURGESS SULPHITE FIBRE CO. 45 Section 3. Auxiliary Jurisdiction. REYNOLDS v. BURGESS SULPHITE FIBRE CO. In the Supreme Court of New Hampshire, 1902. [71 New Eampsliire 332.] Bill in Equity. The bill allep^es that the plaintiff has commenced an action at law against the defendants to recover damages for negligently causing the death of the plaintiff's intestate by furnishing him for use in his employment improper, unsuitable, and dangerous machinery; that on April 9, 1899, while the intestate was in the employ of the defendants, he was killed by falling against the governor of an engine; that the engine gave indications, by an unusual noise, that it was in a defective condition, and shortly afterward the strap on its connecting rod broke and caused the connecting rod to break through the outer casing with a loud crash, and thereby caused the intestate's fatal fall; that the broken pieces of the strap are in the defendants' possession; that to properly prepare the plaintiff's action at law for trial it is necessary that these pieces should be examined by the plaintiif's attorneys, and also by competent persons, with a view of testifying; and that the defendants, though requested, have refused to permit such examination. The prayer is for a discovery of the pieces of the broken strap, and for an inspection of the same by the plaintiff's attorneys and such other persons as she may desire. The defendants filed a demurrer, which was sustained pro forma by ciple of equity than upon contract: unless in this sense; that the principle of equity being in its operation established, a contract may be inferred upon the implied knowledge of that principle by all persons, and it must be upon such a ground, of implied assumpsit, that in modern times Courts of Law have assumed jiu-isdiction upon this subject: a jurisdiction convenient enough in a case simple and uncomplicated : but attended with great difficulty, where the sureties are numerous; especially since it has been held, Coiccll v. Edward, 2 Bos. d Pul., 268, that separate actions may be brought against the different sureties for their respective quotas and proportions. It is easy to foresee the multiplicity of suits to which that leads." Per Lord Eldon in Cray- thorne v. Sunnburne (1807) 14 Ves. 160, 164. See also, Deering v. Earl of Winchelsca (1787). 1 Cox Ch. 318, 321. 46 KEYNOLDS v. BURGESS SULPHITE FIBRE CO. [part i. Pike, J., at the April term, 1901, of the superior court, subject to the plaintiff's exception. Crawford D. Hening, for the plaintiff. Chamherlin & Rich and Orville D. Baker (of Maine), for the de- fendants. Chase, J, Wliatever may have been the fact prior to 1842 (Laws 1832, c. 89, s. 9; Dover v. Purtsmoitth Bridge, 17 N. H. 200), there can be no doubt that ever since that date courts of this state have possessed full equity powers in respect to discovery. R. S., c. 171, s. 6; G. S., c. 190, s. 1; G. L., c. 209, s. 1; P. S., c. 205, s. 1. In the grant of equity powers by the last-named statute, which is now in force, discovery is specially mentioned. The jurisdiction of the court over the subject generally is not questioned, but it is said that this case does not fall within the jurisdiction. In considering the reasons that have been offered in support of this position, it is necessary to have in mind the origin, purpose, and general nature of this remedy. " The common law laid down as a maxim. Nemo tenetur arraare ad- versarinm suum contra se; in furtherance of which principle it gen- erally allowed litigant parties to conceal from each other, up to the time of trial, the evidence on which they meant to rely, and would not compel either of them to supply the other with any evidence, parol or otherwise to assist him in the conduct of his cause." Best. Ev., s. 624; 1 Gr. Ev., s. 329. A different rule grew up in equity. The defendant there was obliged to answer under oath the allegations of the bill, and might be compelled to produce for inspection by the plaintiff documents that were in the defendant's possession and control and were material to the issues involved in the suit. In such cases the discovery was incident to the equitable relief sought. But it was not limited to the issues arising in suits in equity. " Many cases existed in which the plaintiff had a legal title, oi* a legal right, or was pursuing a legal remedy, but wherein no redress could be actually obtained, simply be- cause the plaintiff's evidence either rested in the breast of the defendant, or consisted, in whole or in part, of documents in the defendant's pos- session. Hence there was failure of justice at common law, and hence there arose the equitable remedy of bills for discovery, which was made use of simply for the purpose of assisting or supplementing the plain- tiff's remedy at common law." Bisp. Eq. (6th cd.), s. 557; 2 Sto. Eq. Jur., ss. 1484, 1485; 1 Pom. Eq. Jur., ss. 191, 195. The law expected from the testimony which a party might be compelled to furnish against himself in this way, testimony tending to convict him of a violation of the criminal law, or to subject him to a penalty or forfeiture; also communications between him and his attorney relating to the matters in suit, and, if a public officer, testimony a publication of which would be prejudicial to the community. With these exceptions, a party could be compelled '' to discover and set forth upon oath every fact and circum- t^tance within his l Ves. & B. 16, is to the same effect. These cases must be regarded as authorities for the plaintiff in this action. Occasion for the use of the remedy for the discovery of chattels and ffjr their insi)ection has undoubtedly arisen more frequently in patent CHAP. II.] REYNOLDS v. BURGESS SULPHITE FIBRE CO. 49 cases than in others, but the remedy itself has no special features peculiar to such cases. Their peculiarity consists in the manner of affording relief. " It may be by an interlocutory injunction in the first instance. But much more frequently, unless the case is of the strongest possible kind, it is by merely putting the matter in train for determination of the right at law, and then at the hearing a perpetual injunction is granted, upon the plaintiff succeeding in the action at law." Patent Type Found- ing Co. V. AYalter, Johns. V. C. 727, 730. It should be noted in this connection, also, that the same principles govern discovery, whether it be invoked in aid of other issues involved in the suit in equity, or be in- voked independently in aid of an action at law. Drake v. Drake, 3 Hare 523 ; Lyell v. Kennedy, 8 App. Gas. 217 ; Wig. Dis. 123. If discovery of personal chattels may be had in the former case, it may be had in the latter. In Bovill V. Moore, 2 Goop. G. G. 56, Lord Eldon, in 1815, said: '' There is no use in this court directing an action to be brought if it does not possess the power to have the action properly tried. The plaintiff has a patent for a machine used in making bobbin lace. The defendant is a manufacturer of that article, and, as the plaintiff alleges, he is making it with a machine constructed upon the principle of the machine pro- tected by the plaintiff's patent. Now the manufactory of the defendant is carried on in secret. The machine which the defendant uses to make "bobbin lace, and which the plaintiff alleges to be a piracy of his invention, is in the defendant's own possession, and no one can have access to it without his permission. The evidence of the piracy at present is the bobbin lace made by the defendant. The witnesses say that the lace must have been manufactured by the plaintiff's machine, or by a machine similar to it in principle. This is obviously in a great measure con- jecture. No court can be content with evidence of this description. There must be an order that the plaintiff's witnesses shall be permitted, before the trial of the action, to inspect the defendant's machine and to see it work." It is true, as the defendants in this case say in their brief, that the order was placed " upon the general doctrine that without such inspection the case could not be properly tried." As has been seen, the remedy for discovery in aid of actions at law was introduced for the very purpose of securing proper trials therein. The application of the remedy to the case was in accordance with the general rule. An action for infringing the patent was brought, — probably by direction of the court after compliance with this order, — and was tried by a jury. 8. C, 2 Marsh. 211. Browne v. Moore, 3 Bli. 178, was a similar case, in which the plaintiff was permitted to inspect the machine which he alleged in- fringed his patent. Russell v. Cowley, Web. Pat. Gas. 457, was a bill for discovery as to the defendant's infringement of the plaintiff's patent right for making irdn tubing, and for an accounting. The plaintiff's counsel acceded to terms proposed by the other side that an account should be kept and two persons appointed on each side, as inspectors of 50 EEYNOLDS v. BURGESS SULPHITE FIBRE CO. [part l the defendant's works, for the purpose of giving evidence at the trial of an action at law to be begun forthwith. An order was made accordingly, and an action was thereupon brought, at the trial of which the inspectors testified, giving expert testimony. The defendants question the authority of this case on the ground that the order of inspection was made with the consent of the parties. Whether the consent was of the nature which the defendants infer it was, is at least doubtful. It may have resulted from a consciousness that the court had power to make the order sought, and may have been given merely to expedite the proceedings. The case is cited as a precedent for the jurisdiction of the court to order an inspec- tion in such cases in Patent Type Founding Co. v. Lloyd, 5 H. & N. 192. In Morgan v. Seaivard, Web. Pat. Cas. 167, an order for inspection of paddle-wheels and machinery was ordered. Patent Type Founding Co. v. Lloyd was an action at law, in which the plaintiffs claimed to own a patent for type, the novelty being the use of a large proportion of tin, which made the tyjje hard, tough, and enduring. They moved, under 15 and 16 Vict., c. 83, s. 42, for leave to inspect the defendant's type, and if necessary to take specimens for analysis, in order that they might pro- duce evidence of the analysis at the trial. The court, being of the opinion that the statute did not give them authority to grant an order for speci- mens, denied the motion. 5 H. & N. 192. A few days later the plaintiffs filed a bill in equity praying for an injunction and for liberty to inspect the type and take samples. Liberty was granted, — the parties to make the inspection being named in the order, — and the defendant was ordered to furnish not exceeding four ounces of type for analysis. Patent Type Founding Co. v. Walter, (the defendant in one of the two actions re- ported in 5 H. & N. 192), Johns. V. C. 727. There is also a line of cases in which an inspection of real estate has been ordered. Lonsdale v. Curwen, 3 Bli. 168; Walker v. Fletcher, 3 Bli. 172; East India Co. v. Kynaston, 3 Bli. 153; Attorney-General v. Cham- bers, 12 Beav. 159; Lewis v. Marsh, 8 Hare 97. In a note to the first- named ease, Bligh, the reporter, says : " The practice in courts of equity of granting orders for inspection of mines, machines, etc., is well settled. But no notice has ever been taken of the point in the books of practice, and no authorities are to be found upon the subject in the reports of cases in equitj', except in the case in the court below of Kynaston v. East India Co., as reported 3 Swan. 248, and upon appeal to the house of lords, now reported in the text, and which case as it relates to warehouses is distinct from former authorities and new in its kind. Two cases of orders for inspection extracted from the register's book are therefore subjoined," — • being Walker v. Fletcher and Browne v. Moore, supra, — the former pro- viding ff)r an inspection of mines, and the latter, as has already been stated, for an inspection of machinery in a case for an infringement of a patent. Story, after speaking of the defect in the administration of justice in courts of common law, arising from their want of power to " compel the production of deeds, books, writings, and other things " CHAP. II.] KEYNOLDS r. BURGESS SULPHITE FIBRE CO. 51 material to the issues on trial, says the defect is " remediable in courts of equity, which will compel the production of such books, deeds, writings, and other things." 2 Sto. Eq. Jur., ss. 14S4, 1485. See, also, 1 Pom. Eq. Jur., a". 191. It would seem that these authors had in mind something besides books and documents. One reason suggested by the defendants why these cases do not support the plaintiff's claim is because, as they say, in all of them the plaintiffs set up an interest in the property to be inspected. As has been already observed, it is not perceived how this affects the question. The inspection was ordered in each case while the interest was undetermined, and there was no presumption that it would be determined in favor of the plaintiffs. If determined in favor of the defendants, the inspection would in fact be of their property^ the same as in the cases cited in which letters and other documents were subjected to inspection. The defendant in East India Co. V. Kynaston had no interest whatever in the warehouse, for the ex- amination of which he sought an order. The facts of this case, at least, do not support the defendants' contention. It is also to be noticed that none of the cases places the right of discovery upon this circumstance. The right, as in all other cases, depends upon the necessity for discovery in the administration of justice. To warrant discovery, it is not necessary that there should be absolutely no means of proving the plaintiff's case without it. In Bovill v. Moore, there were witnesses who would say that the lace made by the defendant was manufactured by the plaintiff's machine or one constructed on the same principle. The plaintiff had some evidence to sustain his case, but it was not satisfactory. A party may maintain a bill for discovery, " either because he has no proof, or because he wants it in aid of other proof." 2 Sto. Eq. Jur., s. 1483; Mer. Eq., ss. 853, 854. "When the plaintiff has any case to make out, he has a right to discovery of anything that may assist him in proving his case, or even the smallest tittle of it." Jenkins v. Buslihy, 35 L. J. Ch. 400. The defendants cite three New York cases in support of their con- tention — Kennedy v. Nichols, 68 N. Y. Supp. 1053, Ansen v. Tusha, 1 Rob. Sr. Ct. 663, and Cooke v. Company, 20 Hun. 641. In the first case provisions of the code and of general rules of practice adopted under the authority of the code, relating to discovery upon a motion in an action at law, are construed, and what is said respecting discovery is based upon Ansen v. Tusha. That was an action at law in which there was a motion under the code, by the defendant, for the production of the goods involved in the action and an inspection of them by persons to be selected by hi':i to enable them to testify as experts. In denying the motion, the court refer to the equitable remedy of discovery, and say in general terms that there is no authority or principle for discovery such as was asked for in the case. There is no discussion of the principles, and no authorities are cited relating to the matter. In Cooke v. Company, the question is dis- posed of without an examination of authorities. The reasons given for 52 EEYNOLDS v. BURGESS SULPHITE FIBRE CO. [part i. the holding are that a discovery and inspection of the personal property of an adverse party would be a ursurpation of authority to search and inspect his private premises, and that discovery of books and documents is discretionary with the court, and is exercised only where the party applying has some right or interest in the books and documents. While the defendant may be compelled to disclose whether he has the article in his possession and control, and if he has to produce it for inspection, the procedure is not a search in the sense indicated. It affords no just cause for the fear expressed by the court that " the dwellings of our citi- zens will be of small security to them if they may be invaded by their enemies and searched for articles of personal property to be inspected under an order of a court." Neither does the right of discovery of books and documents depend upon the discretion of the court (Wig. Dis. 51 ; Drake v. Drake, 3 Hare 523) ; nor upon the parties having some right or interest in them other than as items of testimony in his favor. Wig. Dis. 209, 210, 256; Kerr Dis. 202; 2 Sto. Eq. Jur., s. 1490; 1 Pom. Eq. Jur., s. 205; Attorney-General v. Thompson, 8 Hare 106; Arnold v. Water Co., 18 R. I. 189. The slight infringement of the right of property that is involved in an inspection of it under an order of a court of equity is justified by " due process of law " or " the law of the land," and is in no sense a violation of the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. A consideration of the origin of the equitable remedy for discovery, and of its nature and purpose, leads to the conclusion that it may be em- ployed to compel the production of personal chattels, as well as books, deeds, letters, and other documents, for inspection and examination, in aid of an action at law ; and the foregoing cases confirm this conclusion. The defendants' second objection is because the discovery and inspec- tion are sought for the purpose of having the broken strap examined by persons with a view of enabling them to testify as experts in the action at law. This objection must also be overruled. It is evident that expert testimony may be competent upon the issue to be tried, whether it relate to the form of the strap, the manner of its construction, or the character of the materials from which it was made. The defendants have ample opportunity to procure such testimony. Justice requires that the plain- tiff shall also have an opportunity to have the strap examined by persons in whose .^kill and scientific knowledge she has confidence. There cannot be a fair trial of the case unless such opportunity is given to the plain- tiff. Indeed, it may be that she cannot establish lier right — if she have one — without having the opportunity. The necessity for it is alleged, and admitted by the demurrer. The object of the plaintiff's bill is the dis- covery of testimony for use at the trial, but the discovery must necessarily take place prior to the trial. In Marsden v. Panshall, supra, the suit in oquity was begun before the action at law, in order that " the plaintiff should thereby be enabled to bring an action at law." See, also, Bovill v. Moore, supra; Heathcote v. Flente, 2 Vcrn. 442; Morse v. Buckworih, 2 CHAP. II.] REYNOLDS v. BURGESS SULPHITE FIBRE CO 53 Vern. 443; 2 Sto. Ecj. Jur., s. 1495; 1 Pom. Eq. Jur., s. 197. In Russell V. Cowley, Patent Type Founding Co. v. Walter, supra, and apparently in the other patent cases cited, the inspection was ordered to enable wit- nesses to give expert testimony at the trial of the actions at law. See, also, Burrell v. Nicholson, 1 Myl. & K. 680; Arnold v. Water Co., 18 R. I. 189. The defendants place much reliance upon their third point, viz., that the equitable remedy for discovery cannot be invoked in aid of an action at law for a personal tort. They do not question, and in view of the authorities cannot question, the proposition that discovery may be had in aid of actions of tort relating to property, such as trover, detinue, tres- pass, waste, etc. East India Co. v. Evans, 1 Vern. 307; Marsden v. Panshall, 1 Vern. 407; Heathcote v. Fleete, 2 Vern. 442; Morse v. Buck- worth, 2 Vern. 443; Sloane v. Hatfield, Bunb. IS; Taylor v. Crompton, Bunb. 95; Macclesfield v. Davis, 3 Ves. & B. 16; Burrell v. Nicholson, 3 B. & Ad. 649,-1 Myl. & K. 680. But they say that a defendant cannot be called upon to implicate himself directly or indirectly in a personal tort because it would tend to show moral turpitude, and so is inconsistent with principles of natural justice. It is true, as has already been stated, that a person cannot be called upon to furnish testimony in aid of such an action or any other which tends to show that he has committed a crime or misdemeanor, or that he is liable to a penalty or a forfeiture of prop- erty. Testimony of this kind is excepted from the operation of the remedy, in deference to the fundamental law that no subject shall be compelled to accuse or furnish evidence against himself in a criminal pro- ceeding. It is said also that this equitable jurisdiction will not be exercised in controversies involving moral turpitude and arising from acts clearly immoral, even though brought for the purpose of recovering pecuniary compensation. 1 Pom. Eq. Jur., s. 197; 2 Sto. Eq. Jur., s. 1494 ; Wig. Dis. 83 ; and authorities cited in notes. Jf this be so, this case is not thereby excluded from the jurisdiction ; for, so far as appears, it does not involve moral turpitude or immoral conduct on the part of the defendants. They are charged with negligence, merely, consisting of a failure to perform their implied contractual obligation to provide the plaintiff with suitable machinery for the performance of his duties, or a suitable place in which to work. Although the action at law is in form tort, it is in fact based upon the failure to perform a duty arising from an implied promise. It is as distinguishable in this respect from an action of trespass to the person, as an action against a common carrier for the loss of goods in his custody is distinguishable from an action for setting fire to one's house. Morse v. Buckvorfh, 2 Vern. 443. If the case is excepted from the equitable jurisdiction pertaining to discovery, it must be for some other reason than that a discovery would show moral turpitude or immoral conduct on the part of the defendants ; and none has been suggested excepting an absence of precedents sup- porting the jurisdiction. The plaintiff cites and relies upon Macaulay 54 EEYNOLDS r. BUEGESS SULPHITE FIBEE CO. [part i. V. Shaclcell, 1 Bli. N. S. 96, as an authority in her favor upon this point. Macaulay brought an action at law against Shackell and others for libel, and the defendants pleaded the truth of the alleged libelous matter, and in aid of their defence filed a bill for discovery and a commission for examining witnesses abroad. Macaulay filed a demurrer to the bill, which was overruled by Lord Eldon, Chancellor, and Macaulay appealed to the house of lords, where the judgment of the lord chancellor was affirmed, so far at least as it granted a commission for taking testimony abroad. There seems to be a difference of opinion regarding the scope of the decision, some holding that it required Macaulay to answer the bill and make the discovery sought, and others that it only granted a com- mission to take testimony abroad. See Eedfield's note to 2 Sto. Eq. Jur., s. 1494. The decision was rendered in 1827, and Mr. Shadwell (pre- sumably Sir Lancelot) was senior counsel for Macaulay. Four years later the case of Wilmot v. Maccahe, 4 Sim. 263, was before Sir Lancelot Shadwell as vice-chancellor. This was also a bill for discovery in aid of a defence alleging the truth of the libelous matter with which the party was charged in an action at law. The vice-chancellor, referring to Macaulay v. Shackell, said : " Lord Eldon, and the house of lords on appeal, decided that where a person brings an action for a libel it follows, as commensurate with the right to bring the action, that the party who complains is bound to give the discovery which the defendant at law claims to have by his bill." The vice-chancellor must have been familiar with the decision in the Macaulay case; and if the report of the case leaves a doubt regarding the decision, the statement of the vice- chancellor would seem to be sufficient to remove the doubt. In an earlier case of the same kind (Thorpe v. Macauley, 5 Mad. 218) the discovery sought was denied on the ground that it would show that the party had committed a misdemeanor, but the vice-chancellor. Sir John Leach, used the following language in disposing of the question : " It was next argued that a court of equity would not lend its aid, either for discovery or commission, to either party in an action at law proceeding ex delicto. * * * No such limitations of the jurisdiction as to discovery is hinted at in any book of practice or by the dictum of any judge. Courts of equity exercise a direct jurisdiction in matters of waste and public nuisance, which are ex delicto. I am not therefore prepared to say that a court of equity will refuse its ordinary aid to the parties in any action at law pro- ceeding for a civil remedy." This cannot be regarded as authority on the point, but it is worthy of notice in this connection. Chancellor Walworth regarded these cases as authorities in favor of the right of discovery in actions for libel unless the discovery would tend to incriminate the party or render him infamous. Marsh v. Davison, 9 Pai. Ch. 580, 584, 585, 586. A dictum of Lord Langdale, Master of the Eolls (who, Lord Campbell, in his Lives of the Lord Chancellors, vol. 12, /;. 351, says " is without vigor and has not a judicial mind"), in Glynn v. Houston, 1 Ke. 329, decided in 1836, has added to the doubts regarding the decision in CHAP. II.] REYNOLDS v. BURGESS SULPHITE FIBRE CO. 55 Macaulay v. Shackell. The case was a bill for the discovery of books and documents in aid of an action at law for an assault and false im- prisonment. The discovery was denied on the ground that it would incriminate the party called on to make it. The dictum referred to is as follows : " I have looked into the authorities, which tend very much to confirm my opinion that a bill of discovery cannot be sustained in aid of an action for a mere personal tort. If it were necessary to expressly decide this point, I think it is clear what the course of my duty would be; but it is not here necessary, because a bill of discovery cannot be sus- tained in any case where the matter sought to be discovered may be made the subject of a criminal charge." The defendants say that this is a de- cision upon the point, but it is apparent that it is far from being such. If it had been necessary to decide the point, it is highly probable that Macaulay v. Shacl-ell and Wilmot v. Maccahe would have been noticed and either distinguished, overruled, or set right. There is no distinction between libel and assault, as personal torts, which would account for a difference in the application of the doctrine of discovery to them. There are similar dicta by Cockhurn, C. J., in Pye v. Butterfield, 5 B. & S. 829, 830, and by Lord Fitzgerald, in Lyell v. Kennedy, 8 App. Cas. 217, 233. These dicta certainly cannot be regarded as settling the law on the subject. Attention has not been called to any English case in which they have been adopted as the law. The industry of the counsel on both sides in searching for English and American authorities bearing upon the case, manifested by the numerous citations which they have made, justifies a conclusion that no such case exists. Wigram cites Glynn v. Houston three times, but makes no mention of the point in Lord Langdale's dictum. Wig. Dis. 5, 81, 85. Kerr says " it seems " that a bill for dis- covery will not be entertained in aid of an action for a mere personal tort, citing Glynn v. Houston. In the next paragraph he says : " It is no objection that the discovery be sought in aid of actions which sound in tort. Bills may also be brought for discovery in aid of or in defence to actions of trespass and trover ; and, in general, there seems to be no civil right, the trial of which will not be aided by a bill of discovery." Kerr Dis. 6, 7. Evidently Lord Langdale's dictum did not appeal to him as having much weight. One American case has been cited in which the point was decided in favor of the defendants' contention, Rohinson v. Craig, 16 Ala. 50. The decision was based solely upon Glynn v. Houston and the absence of authorities the other way. There was no consideration whatever of the principles involved in the question. If the absence of authorities is en- titled to any weight, it is under the circumstances very slight. Cases for personal torts arising from the action of the defendant, — willful torts, so to speak, — in which the defendant could make discovery without in- criminating himself, must from the nature of the case be very rare. It is possible that there have been none excepting Macattlay v. Shackell, and cases of like nature that have been decided in accordance therewith 56 EEYNOLDS v. BUEGESS SULPHITE FIBRE CO. [part i. without again raising the question. Cases from negligence were not common prior to the middle of the last century. The use of steam and electricity, and the commercial activity consequent thereon, have im- mensely multiplied cases of this kind. Lord Campbell's act for giving compensation to the families of persons killed by the negligence of others was enacted in 1846. Eight years later a procedure bill was passed, largely through the agency of Lord Campbell (17 & 18 Vict., c. 125), by which, among other things, it was provided that either party to a civil action in the superior courts " shall be at liberty to apply to the court or a judge for a rule or order for the inspection by the jury, or by himself, or by his witnesses, of any real or personal property, the inspection of which may be material to the proper determination of the question in dis- pute." lb., s. 58. In speaking of this act. Lord Campbell says: "It brings about, as far as is now practicable, the fusion of law and equity, and establishes the principle on which our jurisprudence must henceforth be moulded, one court for one cause, — i. e., that the court in which the suit commences shall carry it through all its stages, and finally determine it and everything connected with it. Thus parties will no longer be kept oscillating between law and equity till the subject-matter in controversy is wasted in costs." Lives of the Lord Chancellors, vol. 12, p. 395. In passing, it may be remarked that if the act and the reason of its enact- ment do not show that its author understood that courts of equity had jurisdiction to order an inspection of real or personal property when such inspection was material to the proper determination of an issue, it certainly shows that he felt there was a necessity for such inspection in the administration of justice. The act relieved parties from the neces- sity of resorting to equity for discovery, and reasonably accounts for the absence, in England, of bills of discovery in aid of actions at law for negligence since that time. " Cases must arise from time to time which are new cases in specie, but which are not new cases with respect to the general principle by which they must be decided." 1 Bli. N. S. 133 ; Walker v. Walker, 63 N. H. 321 ; Boody V. Watson, 64 N. II. 162; Gage v. Gage, 66 N. II. 282. If Macaulay v. ShackeU and Wilmot v. Maccahe are not authorities in favor of the maintenance of the plaintiff's bill, the general principles governing the remedy of discovery certainly justify its maintenance. The case may be a new case in specie, so far as discovery is concerned, but it belongs to a class to which the remedy of discovery is applicable. It has been suggested that this is a " fishing bill," and should be dis- missed for that reason. The plaintiff is not endeavoring to ascertain what defence the defendants contem])late making, nor facts that exclusively relate to the defendants' case, but is seeking discovery of facts that will oTiribl'' lirr to jirove her case. It is not a fishing bill. 'I'lii> t doctrine was founded on the opinion of one of the greatest judges that ever sat in Westminster Hall, Lord Mansfield" (Wcst- mcath v. Wcstmeath (1830) 2 Doic d- CI. 543). 60 BURGESS v. WHEATE [part k trustee conveyed to Mrs. Harding after the husband's death (the only- purposes for which the trust was created being then ended), the heir, on the part of the mother, had undoubtedly been entitled. The king claims, as the deed of 1718 is a conveyance only of legal form^ and has in this court made no alteration in the beneficial estate ; but haa left it to go in this court as it would have gone before at law, as if the deed of 1718 had never been made. The trustee objects to the heir's claim, because he says the deed of 1718 has made no alteration as to the beneficial estate of which Mrs. Harding died seised ex parte paterna, and opposes the king's right because it has changed the right of escheat, both at law and in equity; and upon a general objection that the plaintiffs must recover upon their own strength to entitle them to relief: for it is not enough for the plaintiffs to shew that the defendant has no right, but that they have a better, upon equitable grounds; and, in the case of a trupt, must shew a better right within the terms of the creation of the trusts. It seems agreed in this case, that the heir ex parte materna cannot in- herit the trust because the trust ensues the nature of the land; which,, before the deed of 1718, could not have descended in the maternal line; and I am at present of that opinion. The doubtful question is, whether the king is entitled to this trust ? And that will depend upon arguments drawn from the nature and effect of a conveyance in trust, and from the nature of the right of escheat. I will follow the method which was used at the bar under the four following heads. First, the nature of trusts of land, and the rules which govern them. Secondly, the nature of that right, by which the king claims in the present case. Thirdly, whether, if the trustee had died sans heir, the king must not, in that case, have taken the land in a court of equity, subject to the trust. Fourthly, I shall apply the result of this inquiry as between the king and the trustee, to the particular point immediately in judgment. First, As to the nature of trusts of land, and the rules by which they are governed. By an in(]uiry into the nature of a use or trust of land, no more is or can be meant, than, as to uses, to find out historically, on what principles courts of equity, before 27 H. 8., received jurisdiction, in modifying or giving relief in rights or interests in lands, which could not be come at but by suing a subpoena; as to trusts, what the court does in modifying, directing, and giving relief in the said rights and interests. in cases where there is no remedy, but by bill in a court of equity.^ Trusts in England, under the name of uses, began, as they did in Rome, under no other security than the trustee's faith.^ They were founded in ' Only so nuK-h of Lord INlansfield's opinion is given as relates to the history and general natme of a trust estate. ^ "Xota, An use is a trust or onnfidcnoe reposed in some other, which is not issuing? out of tlie land, hut as a thing oollaterall, annexed in privitie to the estate of the hmd, ;iiid to thi' jxTSdH loucliiiig llic land, scilicet, that ccsfy CHAP. III.] BUEGESS V. WITEATE 01 fraud to avoid the statute of mortmain. Lord Bacon thinks them little known before Richard the Second's time.' Though the first hint of uses was probably to avoid the mortmain act, yet they were innocently applied soon after to other purposes. A benefit to issue out of lands could only be made by the interposition of uses : wills of land could only be made that way. Natural justice said, he who breaks his trust does wrong; so cestui/ que use was driven into Chancery by breach of faith. There were not six cases of uses before Edward the 4th's time. The court first inter- ^ue use shall take the profit, and that the terre-tenant shall make an estate according to his directions. So as cesly que use had neither jus in re, nor jus . 2C)H; I'omrroy, Et/uity Jurisprudence § 151; Perry on Trusts § 3; but a hitcr view regards their source as the early German law. See, Early Eng- lish Equity, hy Mr. Justice Holmes, in 1 Lain Q. Rev. 1C2; The Origin of Vsrs, hy Mr. F. W. Mnitlnvd, 8 liar. Law h'ev. 127; and 2 Pollock and M'lillnvirs llifath of the vendee does not alter the claim; for, as CHAP. III.] MACKRETir v. SYMMONS 71 Lord Redesdale observed, in a like case, (Hughes v. Kearney, 1 Schoale & Lefroy, 132,) " the heir cannot be permitted to hold what his an- cestor unconscientiously obtained; and is not a thing unconscientiously ■obtained when the consideration is not paid ?" Taking a note for the purchase money does not affect the vendor's lien, and if part be paid, the lien is good as to the residue, and the vendee becomes a trustee as to that which is unpaid. {BlacTchnrn v. Gregson, 1 Bro. 420.) The failure of the personal estate is sufficiently shown in the first instance; and there is nothing to gainsay it, and I shall, accordingly, decree a sale of the one third of the house and lot, towards satisfaction of ^^^ "°*^- Decree accordingly.' Mackretii v. Symmons (1808) 15 Ves., Jr. 329, 336.=— T/ip Lord Chaxcellor [Ei.don]. Upon the special circumstances of this case, T shall postpone my judgment : but I shall be very unwilling to leave some of the doctrine, that has been brought into controversy, with so much doubt upon it, as would be the consequence of deferring the judgment without taking some notice of it. The settled doctrine, notwithstanding the case of Fawell v. Heelis (Amh. 724. 1 Bro. C. C. 3d edit. 422, note. 2 Dick. 425.) is, that unless there are circumstances, such as we have been reasoning upon, where the vendor conveys, without more, though the consideration is upon the face of the instrument expressed to be paid, and by a receipt, endorsed upon the back, if it is the simple case of a conveyance, the money, or part of it, not being paid, as be- tween the vendor and the vendee, and persons, claiming as volunteers, upon the doctrine of this Court, which, when it is settled, has the effect of contract, though perhaps no actual contract has taken place, a lien shall prevail ; in the one case for the whole consideration ; in the other for that part of the money which was not paid. I take that to have been the settled doctrine at the time of the decision of BJachhurn v. Greyson (1 Bro. C. C. 420.); which case so far shook the authority of Fawell v. Heelis as to relieve me from any apprehension, that Lord Bathurst's doctrine can be considered as affording the rule, to be applied as between the vendor and vendee themselves, and persons claiming under them. There is a case. Smith v. Hihhard, (2 Dick. 730.) reported nowhere but in Dickens, which seems to decide this point. There is also another case, besides those which have been mentioned, showing the opinion of Lord Hardwicke, that the lien prevails: Harrison v. Southcote : (2 Ves. 389. See 393.) the case of a Papist vendor, for whom, Lord Hardwicke says, the lien would not be raised ; as that would be giving an interest in land to a Papist : the specialty of that proving, that the lien prevails in general cases. In the case of Elliot v. Edwards, (3 Bos. & Pid. 181. See 183.) Lord Alvanley was very strong upon it. There was ^ See, for a collection- of authorities, Mr. Waterman's to Warner r. Van AlstjTie (1832) 2 Paige Ch. 514. ^ S. C. I White and Tudoi-'s Leading Cases in Equity *289, with notes. 72 MACIvKETH v. SYMMONS [part i. a covenant for pajTiient of the money upon the first purchase; and also an undertaking by a surety: strong circumstances to show, that, as between the vendor and vendee, there is no intention to rely upon the lien. The point was not decided in that case: but Lord Alvanley lays down the doctrine as I have stated it ; that even in the hands of another person, with notice, the lien remains. In Gibbons v. Baddall (2 Eq. Ca. Ah. 632.) the lien was held to be clear against a second purchaser, with notice. There is a very old case in Can/, {Ream v. Botelers, Cary, 25.) which I have cited as one of this class : but I have some doubt, whether it is not a case of equitable interposition upon another ground. The circumstances, leading me to that doubt is, that there was a lost bond; and as the modern doctrine of dispensing with profert was not at that time known. The Lord Chancellor might, therefore, consider himself as having jurisdiction in that case to direct payment of the money, due upon that bond, out of the estate. In Austen v. Halsey (6 Ves. 475. See 483.) what I stated upon this subject was not said without much consideration. I had not at that time, nor have I now, the least doubt, that it is the doctrine. I have some doubt upon another point : taking the vendor to have the lien, whether the Court will, in case of the death of the vendee, marshal the assets; so as to throw the lien upon the purchased estate. It has often been said, and the case of Coppin v. Coppin (2 P. Will. 291. Sel ca ch. 28.) stated as an authority, that the Court will not do that. The Lord Chancellor in his judgment takes no notice of that point. In that case the vendor hap- pened to be the heir of the vendee; so that the estate was at home; and it was held, that being also the executor, he was entitled to retain the purchase-money out of the personal assets. That decision requires a good deal of consideration. If the estate had been in a third person, the general doctrine as to a person having two funds to resort to might be thought to have an immediate application ; and the express terms of the decree in Pollexfen v. Moore (3 Atk. 272.) might be found very in- consistent with it. It is not, however, necessary to decide that point; as this is an equity that in ordinary cases will affect a purchaser. LTpon principle, without authority, I cannot doubt that. It goes upon this; that a person, having got the estate of another, shall not, as between them, keep it, and not pay the consideration; and there is no doubt, that a third person, having full knowledge that the other got the estate without payment, cannot maintain, that though a Court of Equity will not permit him to keep it, he may give it to another person, without payment. It is not, however, necessary to discuss that upon general principles; as it has been repeat- edly stated by authorities, that ought at this time to bind upon that point." ' I'lii an iulmiriihlc discussion of the principle supposed to underlie the doctrine of the Vendors lien and for a collection of authorities, see Ahrend v. Odiurnc (1875) 118 Mass. 2G1 per Gray, J. CHAP. III.] WICKMAN v. ROBINSON 73 WICKMAN V. ROBINSON. In the Supreme Court ok Wisconsin, 1861. [14 Wisco7isin 493.] ' Apjteal from the circuit court for Dane county. The complaint alleged that the defendant Robinson agreed, in writing, under seal, to convey to the plaintiff a tract of land in return for certain work to be per- formed by the latter during a period of five years; that the amount agreed to be paid for said services was five hundred dollars; that after the plaintiff had worked under the contract two years and a half, Robinson refused to permit him to proceed further under the agree- ment; that the value of the services performed was three hundred dollars; that Robinson had, after the recording of the agreement, con- veyed to the defendant McBride the forty acres of land which he had agreed to convey to the plaintiff, and had become insolvent ; and that the plaintiff had never consented to a rescission of the contract, and would not consent to it until his claim should be paid. The complaint prayed that the sum of three hundred dollars, with interest, might be declared a lien upon said tract of land, and that it be decreed to be sold for its payment. The defendants demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and the circuit court sustained the demurrer. Other facts are stated in the opinion. By Court, Paine, J. This appeal presents the question whether one who has made a contract for the purchase of real estate, and has paid part of the purchase-money, has an equitable lien on the land for the amount paid, in case a completion of the contract is prevented by the default or wrongful act of the vendor. It must be conceded that there are not many cases where such a right has been sought to be enforced, but the right itself has been frequently recognized by courts, and re- ferred to as established by elementary writers. The following, cited by the appellant's counsel, may serve as illustrations : Burgess v. Wheate, 1 W. Black. 150; Mackreth v. Symmons, 15 Ves. 345; Money v. Dorsey, 7 Smed. & M. 22; Payne v. Atterhury, Harr. (Mich.) 418; }yiUis V. Farrar, 3 You. & J. 264; Miller on Equitable Mortgages, 45 Law Lib. 18, 19. We can see no reason why such a lien should not exist. All the rea- soning by which the vendor's equitable lien for the purchase-money, after conveyance, is established, is applicable in support of the vendee's lien after payment or part payment, and before conveyance. It is diffi- cult to imagine upoi\what principle a court of equity could enforce the ^ S. C. 80 American Dec. 789, and note; and see notes in 12 American De- cisions 2G2; and 77 t6. 101. 74 WARMSTEEY v. TAN FIELD [part i. one and deny the other. It is undoubtedly true that the more usual remedy is to enforce a specific performance. But in cases like the pres- ent, where the payment is to be made by the performance of partictJar services for the vendor, and after they are partly performed he refuses to allow them to be completed, it may be doubtful whether a specific per- formance could be enforced by the vendee; whether he would not be limited to his damages for the non-performance. However that may be, we are satisfied that it is the clear result of equitable principles, that if he chooses to waive every right except the recovery of that which he has paid, he should be held to have a lien on the land for that amount. The amount to be paid, in a case like this, would be the value of the services actually performed, estimated according to the contract price. The contract having been recorded, the plaintiff is entitled to the same remedy as against the purchaser that he would have if no conveyance had been made: In re Howe, 1 Paige, 129; Eeirsted v. Avery, 4 Id. 9; Iloagland v- Latourette, 1 Green's Ch. 256. That remedy is by a sale of the property to collect the amount due, it being in the nature of a fore- closure: 2 Story's Eq. Jur., sec. 1217. The demurrer to the complaint should have been overruled. The judgment is reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion. WARMSTEEY v. TANFIELD. In Chancery, before Lord Keeper Coventry, 1629. [1 Reports in Chancery 29.] ' The Plaintiff's Title appeared to be that one William Freeman being Possest of the third part of the Parsonage for the whole Term to come, granted all his Interest therein to one Alhorough in Trust for the use of the said William Freeman and Alice his Wife, during their Lives, and after to the use of such issue Male of their two Bodies as the said Wil- liam should by Will appoint, and after the said Will, appointed the Premises after the death of the said Alice imto Richard Freeman Son of the said William and Alice: And that the said Interest in Law of the said Alhorough came by mean Conveyance imto John and Robert Palmer, and that the said Richard Freeman during the Life of the said Alice, who not long after died, assigned the Premises unto the Plaintiff, and also released to the Plaintiff, and the said Palmers assured their Tntrrest in Law in the said Premises to the Plaintiff. ' S. C. 2 White and Tudor's Leading Cases in Eq. Pt. 2, 1530, (*729), with notes. CHAP. III.] HOBSON V. TKEVOR 75 The Defendant insists for Title, that the said Richard Freeman about two years after his Assignment aforesaid to the Plaintiff, made a Lease of the Premises to Walter Thomas and John Maherith who passed their Estate to one Evans and Hawkins in Trust for the Defendant the Lady Tanfield, and had Possession given her. This Court with the Judges taking Consideration of the said Assign- ments, Grants and Release, were of Opinion, and declared, that howbeit a Grant of future Possibility is not good in Law, yet a Possibility of a Trust in Equity might be assigned, and the said Richard Freeman's Assignment of his said Trust unto the Plaintiff is also confirmed by the Assignment of the said Palmer, who had the Interest in Law, and the said Plaintiffs Assignment is also precedent to the Deed made to the said Thomas, by which the said Defendant the Lady Tanfield claimeth the said lease. HOBSON V. TREVOR. In Chancery, before Lord Macclesfield, 1723. [2 Peere Williams 191.] The plaintiff Hohson was a younger son to lady Hohmn, and put apprentice to a linen-draper, and under age; the defendant Trevor was the eldest son of Sir John Trevor late Master of the Rolls, but had in- curred his displeasure and was not admitted to his presence, and it was uncertain whether he would inherit any part of his estate. The defendant Mr. Trevor encouraged the plaintiff Hohson to court his daughter without the privity of lady Hohson the plaintiff's mother, and the defendant Trevor before the marriage, gave a bond to the plain- tiff Hohson dated 8 Nov. 171G, in the penalty of 5000 I. and in the condi- tion the then intended marriage betwixt the said plaintiff and the defendant's daughter was recited, and that the defendant had agreed, in consideration of the said intended marriage, to settle and assure one third part of all such real estate, as should descend or come to him the said Trevor by and upon the decease of his said father the Master of the Rolls, to the use of the plaintiff Richard Hohson for life, remainder to the use of Elizaheth the defendant's daughter for her life, remainder to the heirs of the body of "the said Elizaheth by the said plaintiff Hohson, the remainder to the right heirs of the said defendant Trevor after which came these words, [now the condition of the obligation is, that if the said marriage shall take effect, and the said Edward Trevor, shall within three months after the death of his said father, settle and assure one third of all such real estate as shall descend or come to him after his father's death, then the bond to be void.] 76 HOBSON V. TREVOR [part i. The marriage took effect ; and soon after Sir John Trevor dj'ing in- testate, whereby a great real estate came to the defendant as eldest son and heir of his father, the plaintiff and his wife brought their bill for a specific performance of this agreement. Objected, The plaintiff shall have no more than the i:)enalty of 5000 Z. and it is a dangerous precedent to suffer an heir apparent to enter into any agreement to dispose of his father's estate before he has it; besides the plaintiff in this case makes no settlement, and it is in the discretion of a court of equity, whether they will execute this or any agreement that is brought before them. But by Lo7-d Chancellor :^ This is an agreement made upon a valuable consideration, that of the marriage of a child, and therefore fit to be executed in equity. And It seems the more reasonable, m regard it extends to no more than a third part of the real estate that was to come to the defendant from his father, and this was very hazardous; for if the defendant Trevor had died in the life-time of his father, or if there had been a will, the de- fendant, who was so well known to be under the displeasure of his father, had but an indifferent prospect, so that it might be reasonably thought that the plaintiff at that time, had the worst of the bargain. As to the plaintiff's making no settlement, it appears he was an infant and the defendant knew him to be so, and consequently that he could at that time make no settlement ; probably the plaintiff depended upon his success in trade, as he had been an apprentice to a linen-draper and was left a portion of upwards of 1000 I. by his father. Then it can be no argument to say, that the defendant ought only to pay the penalty of 5000 I. because the agreement is recited in the bond, and such agreement was not to be the weaker but the stronger for the penalty; and by the same reason, that had the penalty been higher and. beyond the value of a third part of the real estate, in such case the de- fendant would not have been bound to pay it, so now the penalty being beneath the value of a third part of the real estate, the plaintiff is not bound to accept it ; besides, it is to be a settlement for the benefit of the issue of the marriage, and the payment of the 5000 I. to the husband would not answer the end, nor provide for such issue. Wherefore let the agreement be executed in si^ecic; saving that a third part of the real estate, which came to the defendant from his father Sir John Trevor, must be settled upon the plaintiff Ilobson and his wife for their lives, remainder to their first, &c. sons in tail male, remainder to their daughters in tail general, remainder to the defendant Trevor in fee; and let the defendant account with the plaintiff for mesne profits ' In I'nnncll r. Taylcr (1S2.3) 1 Tur & R. 101, Lord Eldon toniiod "Lord Maccdcsficld a great coniiiu)!! lawyer, and Lord Ilardwicko a still greater conmion lawyer." Lord Redesdale, himself no mean judge, declared "Lord MaccIc'^rKld an able judge, botli in law and e(|uity, as ever sat on the bench." (Uijvcndcn v. Annesley (1806) 2 8ch. d Lcf. G32.) CHAP. III.] In re GARCELON ' 77 from the end of three months after his father's death, and be examined upon interrogatories touching' his father's real estate, and produce all books, papers and writings upon oath, and pay costs.' In re Garcelon (1894) 104 Cal. 570, 584.'— De Haven, J.— The first of these covenants is, in substance and effect, an agreement upon the part of the iietitioner to relinquish as heir presumptive his ex- pectancy in that portion of the estate of his aunt to which the agreement related. It is claimed by the petitioner that such an agreement is void under sections 700 and 1045 of the Civil Code of this state, the first of tvhich provides that " a mere possibility, such as the expectancy of an heir apparent, is not to be deemed an interest of any kind," and the latter section declaring that " a mere possibility, not coupled with an interest, cannot be transferred." These sections simply state the well-settled and well-understood rule of the common law upon the subject to which they relate. At common law a mere possibility, such as the expectancy of an heir, was '"There are two kinds of possibilities; the one, a bare possibility; that which the heir has from the courtesy of his ancestor, and which is nothing more than a mere hope of succession. Such a possibility undoubtedly is not the object of disposition; for if the heir were to dispose of it during the life of the ancestor, though it afterwards devolved on him from his ancestor, such disposition would be void." Per Lord Kenyon, Ch. J., in Jones v. Roe (1789) 3 T. R. 88, 93. In Carlton v. Leighton (1805) 3 Meriv. 6G7, f)71, Lord Chancellor Eldon is reported to have decided " That the expectancy of an heir presumptive or ap- parent (the fee simple being in the ancestor) was not an interest, or a pos- sibility, nor was capable of being made the subject of assignment or con- tract; that the cases cited were cases of covenant to settle or assign property which should fall to the covenantor; where the interest which passed by the covenant was not an interest in the land, but a right under the contract; therefore that no interest in the estate in question passed under the bargain and sale of the commissioners." To this statement of Lord Eldon, Mr. Spence says, — "But a man may make a binding contract, as in Bceklcy v. Newland, 2 P. W. 182; Eobson v. Trevor 2 P. W. 191, that if he should become possessed of a particular estate, he will execute a security upon it; the interest which passes by the covenant in such case is not an interest in the land till it comes in possession, but a right under the contract: Buckle v. Baines, 8 8im. 525." — 2 Jtirisdictioti of the Court of Chancery 614, n. (c). An earlier case than any cited is Wiseman v. Roper (1646) 1 Rep. in Ch. 158, in which the defendant is made to perform specifically an agreement to convey lands that might descend to him, the lands having descended. (On the question of consideration, however, the case seems no longer law.) -S. C. 43 Am. St. Rep. 134, with notes. 78 In re GARCELON [part i. not regarded as such an existing interest as to be the subject of a sale or capable of passing by assignment; but in equity the rule was di'fferent, and agreements for the sale or release of expectancies, if fairly made and for an adequate consideration, were enforced upon the death of the ancestor; and, in our opinion, it was not the intention of the legislature, in enacting the sections of the code just referred to, to make any change in the rule by which courts of equity were therefore governed in dealing with this class of contracts. This construction of these sections is in harmony with section 5 of the same code, which declares that the i^ro- visions of that code, " so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof, and not as new enactments " ; and also follows the presumption, that the legislature, in the enactment of statutes, does not intend ta overturn long-established principles of law unless such intention is made to clearly appear either by express declaration or by necessary implication. Mr. Story, in section 1040 c, volume 2, of his work on Equity Juris- prudence, states the equitable rule upon the subject of such agreements as the one before us as follows : " So, even the naked possibility or expectancy of an heir to his ancestor's estate may become the subject of a contract of sale or settlement ; and, in such a case, if made hona fide for a valuable consideration, it will be enforced in equity after the death of the ancestor; not, indeed, as a trust attaching to the estate, but as a right of contract." And see, also, as sustaining the same proposition, Pomeroy's Equity Jurisprudence, 2d ed., sees. 168, 953; Bacon v. Bon- ham, 33 N. J. Eq. 614. In accordance with this principle it has been held in many cases in which the question has arisen that an heir may release to the ancestor his expected share in the ancestor's estate. Thus, in Havens v. Thomp- son, 26 N. J. Eq. 383. It was held that a son, by such release to his father, estopped himself from claiming as heir any portion of the father's estate. In that case it appeared that the father gave to the son the sum of six hundred dollars, upon the condition that it should be accepted in full satisfaction of his interest in the father's estate, the son executing a receipt stating that the money was received " in full in lieu of dowry," The chancellor construed the receipt in view of the facts surrounding its execution as a release, and said : " I regard this in- strument as an agreement by which Benjamin, in consideration of the money paid to him by his father, agreed with the latter that he would make no claim to a share of his father's estate should the latter die intestate, but therefrom would be debarred by that instrument made- upon what was a satisfactory compensating consideration. Such an agreement may be made between a father and his child in regard to the- interest of the latter in the estate of the former, and the effect will be given to it in equity according to the intention of the parties "; and the rule thus declared was afterwards approved in Brands v, De Witt, 44 N, J, Eq. 545, CHAP. III.] In re GARCELON 79 In Bishop V. Davenport, 58 111. 105, it was shown that the father in his lifetime gave to certain of his children property, and took from them an instrument in writing in which they acknowledged that such property was received by them as their full share of his estate. The father died intestate, and the court, in passing upon the question, held that the transaction was not an advancement, and that the instrument signed by the children operated as a release by them of their expectancies in their father's estate, and should be upheld as such. So, also, in Kershaw v. Kershaw, 102 111. 307, a son accepted from his father a deed, the deed reciting that " said land is deeded as an advance- ment to said John W. Kershaw out of the estate of said Joseph Kershaw, and the deed is accepted by said John as his full share of his father's estate." The court in that case held that the acceptance of the deed bound the son to the same extent as if he had signed it, and that the conveyance did not constitute an advancement, but operated as " an executed contract, whereby an heir released his expectancy in his father's estate in consideration of a present grant of real estate." And it was further there decided that the son was estopped from making any further claim as heir at law to any portion of his father's estate. In Crum v. Sawyer, 132 111. 443, the court, in a well-considered opinion, held that a husband might, for an adequate consideration, enter into a valid contract with his wife, releasing all his interest as her heir in her lands and personal estate, saying : " There can be no question, then, that the complainant's contingent interest or expectancy as the heir of his wife in her real and personal estate was a proper subject of con- tract, and the contract in question having been made upon a valuable consideration by parties capable of contracting with each other, and, so far as the evidence shows, with entire fairness, it should, as to such contingent interest or expectancy, be enforced according to its terms." And in Powers' Estate, 63 Pa. St. 443, it was decided that a father might make a contract with his child which would bar the latter as his licir at law, and that when property had been received by the son from the father, the son giving a receipt reciting that the same was received in full of his share as heir at law, he was thereby estopped upon the death of the father from claiming any further part of his estate. Without multiplying authorities upon this point, and many others might be cited to the same effect, it is sufficient to say that we are en- tirely satisfied with the rule declared in the foregoing cases, and hold that it is competent for an heir under the limitations stated in that rule to relinquish to his ancestor all interest in the estate of the latter which might otherwise in the future vest in him as such heir. 80 BEEVERTON'S CASE [part i. A. B. V, J. R. In the Exchequer, before Lord Chancellor Waynflete, Bishop of Winchester, 1459. [Year Booh, 37 Henry VI, folio 13.] ' A. B. having bought from J. R. certain debts owing to him from various persons, and given his bond to J. R. for securing the price, prayed in equity to be discharged of the bond, on the ground that debts were choses in action and no property passed, and the bargain gave no action, and the debtors still remained the debtors of J. R., and he (A. B.) had nothing for the purchase-money. Thereupon A. B. obtained a subpoena; but inasmuch as the matter was doubtful to the Chancellor [Lawrence Booth, Bishop of Durham] he adjourned it into the Exchequer Chamber before himself and the judges of both Benches : and all the judges were of opinion that as the plaintiff could not have quid pro quo, the obligee ought to release the bond to the plaintiff. Upon this it was ordered in Chancery that the bond should be brought into Court, or that the obligee should make an acquittance or lease to the obligor; and the defend- ant refusing to do so was committed to the prison of the Fleet until he should choose to comply. BREVERTON'S CASE. In the Exchequer, 1538. [Dyer 30 b.] This case was debated in the exchequer: Breverhon, who was at- tainted of treason on the last day of Easter Term, had certain bonds which were forfeited to the king, and the king granted those bonds to the wife of Breverton, without any words to impower the grantee to bring actions upon the bonds in her own name; and yet the wife brings an action, viz. an information in her own name upon the bonds; and upon this, there was a demurrer in judgment, because the suit was in hor own name; and. Whether it ought to be in the name of the king? was the question. And it was adjudged {ut audivi) that the action was well brought, for the king alone may grant a cliose in action. And for the same reason that he has granted the bonds, which are the substance and foundation of the actions, the law implies that the grantee shall use the means to come at the things granted, &c.' ' Tlif fjiMO is prinlcd as it is translntod in 1 C. I'. Cnnprr's Rcporfu 515. I\Ir. Ames gives a less iil)ri(lj.'0(l translation of ilio sanio rase (1 <\iscs in Equity ./iirisfUrtion 1 ) . ■■' " 'Twas said for law that llio King may grant a thing in action, which is CHAP. III.] THE KING v. TWINE 81 THE KING V. TWINE. In the Exchequer, 1608. [Croke's James 179.] Upon demurrer, the case was, That one George Yorlc recovered against John Allen four thousand pounds damages in an action on the case. Afterwards George Yorl-, being oiitlawed in a personal action, died; and queen Elizaheth, in the thirty-fourth year of her reign (reciting that he was outlawed and dead), granted all his goods, chattels, and debts to Francis Anger, to the use of Mary York. Afterwards Francis Anger, by deed, assigned that debt and judgment to Christopher Tivine: and not- withstanding, an extent issued in the king's name, to extend all the lands which the said John Allen had at the time of the judgment; and the lands in the possession of Thomas Twine, which he purchased after the judgment, were extended. Thereupon he, as terre-tenant, pleaded against this extent, to be discharged thereof, it being upon assignment made 34. Eliz. by the queen; whereas by the assignment made by Anger to Twine, he is chargeable to him only, and not to the king. It was thereupon demurred, and argued divers times in the exchequer. The principal question was. Whether, after the assignment of this debt by queen Elizaheth, the king may extend in his own name for the benefit of the patentee, and the patentee thereby have the suit in the king's name? And all the Barons, after the argument at the bar, resolved, that as the king's grant of a thing in action is good enough, so this debt, which is forfeited to the king by the outlawry of York, is well granted ; and the grantee may have the benefit to levy this debt by action in his own name, or by extent in the king's name, altho' he hath not any words in his grant to sue it in the name of the king, as is usual in such cases. Eut the assignment over of this debt by Francis Anger (the king's patentee) to Christopher Twine, is merely void; for there cannot by law be any assignment made by a common person of this debt.^ It was there- fore adjudged, that the plea was ill, and no cause of discharge; and that the land should remain in extent for the king. Tide 4. Hen. 8. Dyer, fol. 1. and fol. 30. Breton's Case, 39. Hen. 6. pi. 26. personal: as debt, and damages, and the like, or a thing mixed; as the ward of body; but not a thing real, as an action of land, and the like, as Rights, Entries, Actions, and the like which Ahhois might have, (and that the King shall have these by the Statute of dissolution of A66ies 31. H. 8.) These things in action the King cannot grant. * * * 33. H. 8. B. Pattents 98." Brooke's New Cases, March's Translation, 34. ' " Here Littleton reciteth one of the maxims of the common law ; and the reason hereof is, for avoyding of maintenance, suppression of right, and stir- 82 CEOUCn V. MARTIN AND HARRIS [part i. CROUCH V. MARTIN and HARRIS. In Chancery, before Lord Keeper Cowper, 1707. [2 Vernon 595.] The plaintiff lent Arthur Harris, late husband of the defendant, 1001. on Bottom-Rhea; and as a farther security assigned to the plaintiff the wages, that would become due to him in the voyage to the Indies, as chirurgeon of the ship at 41. 10s. per month ; the ship returned safe to London, and 1451. became due on the Boffom-Rhea bond. Arthur Harris died in the voyage; the defendant, his widow, took out administration; and there being a bond given by her husband on her marriage to leave her 4001., if she survived him, she confessed judgment thereon, and in- sisted that judgment ought to be first paid, and the wages due to the husband applied to that purpose. Per Cur. Seamen's wages are assignable; and the assignment speci- fically binds the wages; and in truth the advancing the 1001. on the credit of the wages is, as it were, paying the wages before hand; and the seaman or his widow must not have his wages twice. It is a chose en action, being due by contract, although the service not then done, and a chose en action is assignable in equity upon a consid- eration paid.' ring up of suites, and therefore nothing in action, entrie, or re-entrie, can be granted over; for so under colour thereof pretended titles might bee granted to great men, whereby right might bee trodden downe, and the weake op- pressed, which the common law forbiddeth, as men to grant before they be in possession." — Co. Lit. 214a. ' "Though the law does not admit an assignment of a chose in action, this Court does; and any words will do, no particular words being necessary thereto." — Per Lord Hardwicke in Roiv v. Dawson (1749) 1 Vcs. 8r. 331, 332. The same high authority in a case a little later said: "There was a wise reason in the law's not allowing a right to sue to be assigned, that it tended to champerty and maintenance to pass debts into the hands of the more power- ful to oppress lower people. Yet it is now established in this court, that a chose in action^ niay be assigned for a valuable consideration." Wright v. Wright (174n-,5b) 1 Vcs. Sr. 40!), 411. " That a debt, or other chose in action, may be assigned in equity without any concurrence on tlie part of the debtor, and that no particular words are necessary, have been settled by a long series of decisions." J'cr Sir John liomilly in Bell v. R. R. Co. (1S.52) 1.5 Bcav. 548, 552. It may be of interest to note that Cowper was the first Chancellor to hold the great seal after the union of England and Scotland in 1707. He is there- fore the first Lord Chancollor of Great Ihitain. While deficient in logical faculty and grasp of law as a science. Pope and Chesterfield considered liim a consummate orator. Ilis namesake and kinsman, William Cowper, will always associate the name with literature. CHAP. III.] LEGn V. LEGH 83 PAKKEE V. LILLY. In the Queen's Bench, 1712. [10 Modern 102.] A man assigns his bond to B. B. sues this bond in the name of the assignor, and has judgment. On a \\Tit of error brought, the judgment is affirmed; and after execution is taken out, but before it was returned, the assignor gives a warrant of attorney to confess satisfaction upon record, which is accordingly done, and upon this a supersedeas is taken out to stop the execution. It was moved to set aside the supersedeas, because after assignment the Court will not suffer the assignor to give a warrant of attorney to acknowledge satisfaction; and for this 1. Kehle, 803. was quoted. But, as to this, it was said, that the assignment was matter of equity, and was more proper for chancery tlian for this court; and a late case was quoted in the common pleas, where a bond was taken in trust for another, and the obligee dying while the suit upon this bond pended, it was held that the cestuy que trust could not go on in the action, because this Court could not take notice of the trust, or of any other plaintiff than who appeared to be so upon record. And of this opinion was the Court. It was further insisted, in favour of the motion, that after execution was gone out, it was not regular to grant a supersedeas without a Judge's hand. The Court took time to inquire into the practice. LEGH V. LEGH. In the Common Pleas, 1799. [1 Bosanquet and Puller *447.] On a former day. Shepherd, Serjt, shewed cause against a rule Nisi obtained by Le Blanc, Serjt. for setting aside a plea of release in an action on a bond, and ordering the release to be cancelled. The case as disclosed by the affidavits in support of the rule appeared to be this: Frances Legh having giving a bond to Sarah Legh to secure 751. Sarah assigned it to John Legh as a security for the payment of a lesser sum, of which Frances had notice: John having brought an action on the bond against Frances in the name of Sarah, Sarah gave a release to Frances by whom she had been satisfied her debt, and this release was pleaded. 84 LEGH V. LEGH [part i. Eyre, Ch. J.' The conduct of this Defendant has been against good faith, and the only question is, wliether the Plaintiff must not seek relief in a Court of. Equity? The Defendant ought either to have paid the person to whom the bond was assigned, or have waited till an action was commenced against him, and then have applied to the Court. Most clearly it was in breach of good faith to pay the money to the assignor of the bond and take a release, and 1 rather think the Court ought not to allow the Defendant to avail himself of this plea, since a Court of Equity would order the Defendant to pay the Plaintifi the amount of his lien on the bond, and probably all the costs of the application. BuLLER^ J. There are many cases in which the Court has set aside a release given to prejudice the real Plaintiff. All these cases depend on circumstances. If the release be fraudulent, the Court will attend to the application. The Court recommended the parties to go before the prothonotary in order to ascertain what sum was really due to the Plaintiff on the bond. Shepherd, on this day, stated, that the Defendant objected to going before the prothonotary, upon which the Court said, that the rule must be made absolute. He then applied for leave to plead payment of the bond, and contended, that as this was not an application under the Statute to plead several pleas, the Court had no discretion. Eyre, Ch. J. The Court has in many cases refused to allow a party to take his legal advantage, where it has appeared to be against good faith. Thus, we prevent a man from signing judgment who has a right by law to do so, if it would be in breach of his own agreement. In order to de- feat the real Plaintiff, this Defendant has colluded with the nominal Plaintiff to obtain a release; and I think therefore the plea of release may be set aside consistently with the general rules of the Court. And if so, the Defendant cannot be permitted to plead payment of the bond, as that would amount to the same thing. Bi'LLEH, J. The Court proceeds on the ground, that the Defendant has in effect agreed not to plead payment against the nominal obligee. Upon this the Defendant consented to go before the prothonotary." ' "A name that has great authority with me * * * ITis judnments were very elaborate, and generally in writing; and when the energy of mind which he applied to them is considered, I am surprised that it could be supposed that he had contradicted himself and decided differently in the two cases. I think that upon an attentive perusal, they will be found to be reconcilable." ]'er Lord FAdon in Ihifik v. Lewis (1821) 1 Jac. Ch. 369. '•' In Andrcuft v. lirccLcr (ISOO) 1 Johns. Ca. 411, in an action of debt on a bond con(litif)n('d to execute a certain deed therein mentioned, it was resolved, Per Curiam, tliat " a release after the assiord Nottingham — has stood the test of time and criticism, than whicli there can be no greater praise. CHAP. HI.] PEAENE v. LISLE 87 to lOOZ. Antigua money: that the defendant refuses to pay for two years service, which is of the value of lOOL Sterling, and also refuses to deliver the Negroes to jilaintiff's agent; that defendant has declared he intends to leave England soon and go to Antigua: that plaintiff has no remedy at law, his witnesses being abroad, and therefore filed his bill in this Court. On motion to discharge this order. Lord Ilardwicke, C. declared the rule of the Court to be. not to grant a Ne exeat regno on a mere legal demand for money; if it is of such a value, the defendant may be arrested, and obliged to give bail, who will be liable unless they surren- der him; and he may be as easily taken by that process as on a Ne exeat regno. The almost only exception to that rule is in the case of alimo;iy decreed by the Spiritual Court ; that court cannot take bail, and therefore this Court will lend its assistance in favour of the woman. On consideration of the nature of the demand, the merits of the case, and the person of the defendant, and the place he is going to. which are all the reasons given for granting this writ, I will discharge the order. 1st, As to the nature of the demand. It is for the use of Negroes. A man may hire the servant of another, whether he be a slave or not, and will be bound to satisfy the master for the use of him. I have no doubt but trover will lie for a Negro slave ; it is as much property as any other thing. The case in Sail: 666. was determined on the want of proper description. It was trover pro uno ^thiope vocat. Negro, without saying slave; and the being Negro did not necessarily imply slave. The reason said at the bar to have been given by Lord Chief Justice Holt, in that case, as the cause of his doubt, viz. That the moment a slave sets foot in England he becomes free, has no weight with it,' nor can any reason be found, why they should not be equally so when they set foot in Jamaica, or any other English plantation. All our colonies are subject to the laws of England, although as to some purposes they have laws of their own. There was once a doubt, whether, if they were christened, they would not become free by that act, and there were precautions taken in the Colonies to prevent their being baptised, till the opinion of Lord Talbot and myself, then Attorney General and Solicitor General, was taken on that point. We were both of opinion, that it did not at all alter their state. There were formerly villains or slaves in England, and those ' "See Contra Somcrsett v. Steicart Lofft, p. 1. 8. C. 20. Hoiv. S. Tr. 1. See Mr. Hargrave's argument in this case, Ffarg. St. Tr. H. Vol. 339. Sharley v. Harvey, 2 Eden 126. See Williams v. Broirn 3 Bos. rf P. 69. See Lord Stowell's judgment in the matter of a slave woman called Grace, delivered in the Ad- miralty Court, 6 Nov. 1827, in which case his Lordship held, that a slave re- turning to the colony where she had been in slavery, was, notwithstanding her having been born in England, still liable to all the disabilities of slavery." Reporter's note to 2d Edition. The American student will find the case of Lemnwn v. People (1860) 20 ^^ r. .562 of great interest. Wm. M. Evarts and Chas. O'Connor appeared respectively for and against the slave. 88 HENDERSON v. VAULX [part i. of two sorts, regardant and in gross; and although tenures are taken away, there are no laws that have destroyed servitude absolutely. Trover might have been brought for a villain. If a man was to come into a court of record and confess himself villain to another (which was one way of being a villain), what the consequence would be I will not say,, but there is no law to abolish it at this time. As to the merits, a specific delivery of the Negroes is prayed; but that is not necessary, others are as good; indeed in the case of a cherry-stone, very finely engraved, and likewise of an extraordinary wrought piece of plate, for the specific delivery of which bills were brought in this Court, they could not be satisfied any other way; their value arose on circum- stances peculiar to themselves : but in others, as diamonds, one may be as good as another. The Negroes cannot be delivered in the plight in ^ which they were at the time of the demand, for they wear out with labour, as cattle or other things ; nor could they be delivered on demand, for they are like stock on a farm, the occupier could not do without them,, but would be obliged, in case of a sudden delivery, to quit the plantation. The person of the defendant is amenable, for he is a native of Antigua; he is going to Antigua; his effects, and likewise the Negroes, are there, and have been used in that place. It is a colony subject to England, and the plaintiff may have justice done him in the Courts there. ^J Henderson v. Vaulx (1836) 10 Yerger (18 Tenn.) 29, 37.— Eeese, J.— ^^^T'lt is but recently, in this state at least, that the peculiar nature and char- S^v acter of slave property, and of the relation between master and slave, have \ ^-^been regarded in our courts in the spirit of a rational and humane philos- X^^ophy. A few years ago, and any man who had a judgment debtor, might " by virtue of an execution against him, become the owner of the slave of a third party, if he chose in a suit at common law, to pay the value or more than the value. A court of chancery, if the owners had there sought to restrain the bill, or recover the possession, closed its doors upon him, with the information given him, that he had a clear and unembarrassed remedy at law. Afterwards it was discovered as wines, family pictures and plate, and ornamental trees. &c. were protected to the owner in a court of chancery against trespass, so might a slave, if a family slave, and a peculiar favorite with his master. But recently, upon grounds less technical and far higher and sounder, it has been determined that a court of chancery will protect the possession and enjoyment of this peculiar property, a property in intellectual and moral and social quali- ties, in sltill, in fidelity and in gratitude, as well as in their capacity for labor; and any owner may now say and show to a court of chancery, I am inastor, tliis is my slave, and he shall retain or recover the pos- session. These principles, founded ujion tiie nature of the property, will necessarily embrace the rights and liabilities affecting the present CHAP. HI.] HENDERSON v. VAULX 89 and future owners, the party in possession and the party in remainder. The remainder man is owner, and entitled to be secured in the specific slaves and their increase, and not merely in their value, or even more than their value. If the owner for life may remove with the negroes to Mississippi or Louisiana, how is the remainder to be secured? It is an- swered, by a bond with security here, to have the negroes forthcoming at the death of the remainder man. Without urging how precarious such security would be, after the lapse of some twenty or thirty years, by the death of sureties, the operation of our statutes of descents and distribu- tions, and the commercial and ever changing character of our country; without insisting how improbable it would be that those in remainder would get any available remedy upon the bonds, let us suppose that in this case a bond with ample security shall be taken, that the defendant, his wife, and his negroes go to his farm in Mississippi, and that contrary to the probability of the case, the wife dies in a short time, while the sureties are yet good. The complainants want the negroes specifically, they are favorite negroes, family negroes, at all events they wish the possession of them, how should they recover it ? They can only sue upon the bond. In that bond they will not recover the negroes, but their value here, or their value in Mississippi, but probably the former; but suppose the latter, the defendants in exoneration of his sureties pays the money here, as he, needing the negroes would be sure to do, and then the matter ends in a compulsory sale through the agency of this court, and a court of law. If complainants sue in Mississippi will they recover the negroes specifically; we know not their system of laws. This single view of the subject seems to be decisive. When the negroes leave this state and go beyond the jurisdiction of its laws, we have no further control over them; they may be hired, sold, emancipated, and dispersed through every slave- holding or non-slaveholding state in the Union, or out of the Union. And if, as matter of right the life estate owner can give the bonds and go where he pleases with the negroes, for it results in that, if he remove where we direct or permit him, he may afterwards remove a dozen-times ; if he can do this of right, then every owner of a life estate can, by giving bond, compel those in remainder hereafter to receive, if they can recover indeed, the money value of their negroes. There are many other views leading to the same results. Our state constitution prohibits the emanci- pation without compensation to the owner. If the negroes are taken to a state where the fundamental law differs, the title is less secure. The complainants are members of this political community, and have a voice in the formation of its laws : if removed, their slaves would be under a system of laws ; in the formation of which they would have no voice. Wa have a mild penal code, as regards slaves, as well as others; they might be taken where this would be otherwise. We have a much greater portion of free than of -slave population ; and the slave, without severity, is kept in a due and safe subordination; they might be taken where the proportion is the other way, and where weakness on one side and rashness 90 McGOWIN V. EEMINGTON [part i. on the other, might lead to insurrection and consequent destruction of the slave. Here there is a liberal philanthropy and protective public sentiment to the slave — there it might be otherwise. Here the annual profit of the slave's labor bears no very large proportion to his own value, and of course interest is on the side of humanity, and he may not be over- worked — there the annual profit may be one third of his entire value, and the temptation would be to overwork him. Here the moderate annual profit of the slave's labor makes an increase of the stock an object, and mothers and children are tenderly treated — there a difl^erent state of things may produce a different feeling and a different course. Here we have a temperate, healthful climate — there the climate may be less favor- able to life. Here, those in remainder could know the state and condi- tion of the property, ascertain whether it was humanely or cruelly treated, be informed of its increase, i)reserve the evidences of its identity, and their ownership — there, unless they should remove thither, they would be ignorant of all these subjects, and that ignorance would peril their title and interest in the property.' McGOWIN V. REMINGTON. In the Supreme Court of Pennsi lvaxia, 1849. [12 Peiuisylvania State 56.] The complainant's bill alleged that he was formerly a surveyor in the City of Pittsburg; that he deposited with the defendant, a trusted em- ployee, certain surveyor's maps, charts, and instruments, with the under- standing that the defendant, who contemplated taking up the business of surveying and whom the complainant desired to help in so doing, should use the same and then return them to the complainant on his de- mand, the latter intending to resume his business of surveyor at some future, time. The complainant after some time demanded from the de- fendant the loaned maps, charts, and instruments. The defendant re- fused to return them, asserting that there were some which he could not do without. The bill then prayed that the defendant McGowin be de- creed to deliver up to the complainant the said plots. &c., and any copies thereof made since demand, and further prayed an injunction to restrain McGowin from copying, and from destroying, or injuring, or secreting said plots, ." 'I'lint case was CHAP. III.] LYNCH V. METROPOLITAN EL. RY. CO, 131 upon a bill for specific relief and to restrain an action at law brought to recover the value of certain bank stock, and it set up certain equitable considerations as against the justice of a recovery in the other action. The chancellor below decided against the whole, relief sought by the bill, and decreed in favor of the defendants that the complainants should pay them the value of the stock and ordered a reference to state the account. This procedure the Court of Errors ujiheld as being right and the duty of the chancellor to follow. I do not consider the cases cited by the appellants to be at all con- trolling upon the question. In Murray v. Hay (1 Barb. Ch. 59), the bill was filed by two persons, who were owners of different dwelling-houses, in severalty, having no joint interest in either of them, to restrain a nuisance which was a common, but not a joint, injury to both complain- ants. The objection to the prayer for an account and compensation for their respective damages was upon the ground of multifariousness, and so considered. Another case of Hudson v. Caryl, (44 N. Y. 553), was an action to recover damages for the overflowing of plaintiff's lands and to compel the removal of the dam ; and the decision turned upon the ancient right to a jury trial, in such an action of nuisance, which the Code had not affected. It was not an action in equity to restrain a nui- sance, which, according to Judge Andrews' opinion in the Cogswell case {supra), would not be an action for a nuisance directed by the Code to be tried by jury. But the judge who delivered the opinion of the majority of the Com- mission of Appeals, in Hudson v. Caryl, spoke obiter in his remarks upon the general right of trial by jury, as his opinion indicates, for he says (p. 555) : "But whatever may be said or decided in regard to the trial of other actions, in which two causes of action, one exclusively of legal and another exclusively of equitable cognizance, arising out of the same transaction, are united, this action should, for an independent reason, have been tried by jury, and that is, that the action, when brought for the double object of removing the nuisance and recovering the damages occasioned by it, was always tried by jury;" and he proceeds to refer to Blackstone and to the old Revised Statutes. As, therefore, "a case is presented in which a trial by jury has been heretofore used," the com- missioner concluded it was error to refuse it. It does not seem to me necessary to pursue further the consideration of authorities. The respondent's counsel has cited others, in this and the lower courts. In a note to Arm,strong v. Gilchrist (supra) will be found reference to other early cases in this state, and in the United States Supreme Court, in support of the "settled rule, that when the Court of Chancery has gained jurisdiction of a cause for one purpose, it may retain it generally for relief." Underlying the system upon which courts of equity have exercised their power, as I understand it, is the principle that when they have gained jurisdiction of a cause by reason of the infirmity of the courts of law to entertain it, or to give full relief. 132 LYNCH V. METEOPOLITAN EL. EY. CO. [part i. they will retain their control of the cause generally, and settle up the whole matter between the parties. I have discussed the question here at considerable length, in order that a rule, long settled by careful judicial utterances, and, in itself, reason- able and commendable as promoting the public convenience in the dis- position of litigated causes, might not, at this day, be shaken by doubts. The conclusion which, I think, we must reach is that, in this complaint, the cause of action is single and constitutes a claim for equitable relief, and there is not mixed up with it a cause of action for legal relief. The facts alleged as a basis for an appeal to the court to exert its equit- able power may well have constituted a claim for legal relief, and might have been set up in an action at law ; but that consideration cannot affect nor change the equitable nature of the action itself. It was not error, therefore, to deny the motion for a trial by jury as to past damages, and the court could competently proceed with the trial of the cause in equity. The only other point, presented to us upon this appeal, is that it was error to award damages for portions of the property which were in the possession of tenants. As to this question the case is controlled by the decision of the Kernochan case, at this term. The judgment should be affirmed, with costs. All concur, except Earl and Peckham, JJ., dissenting. Judgment affirmed. CHAP. IV.] ANONYMOUS 133 CHAPTER IV. FUNDAMENTAL PRINCIPLES AND MAXIMS CONTROLLING THE EXERCISE OF EQUITY JURISDICTION. Section 1. General Principles. ANONYMOUS. In Chancery, before John Morton, M. R., 1479. [Cary 21.] A. made a deed of feoffment to his own use to B., but gave no livery of seisin. A. dieth : C, his heir, bringeth a subpoena against B. ; but by Morton, Master of the Rolls, C. was denied help here, because B. had nothing in the land; and if he abate, there is remedy at the common law against him. ANONYMOUS. In Chancery, before Lord Chancellor Hardwicke, 1752. [2 Vesey, Senior 414.] Motion for injunction to stay the use of a market set up by de- fendant Brown. Lord Chancellor refused it, saying this was a most extraordinary attempt, of which he never knew an instance before. The plaintiff has several remedies : there may be a Scire facias in the name of the crown to repeal letters patent granting a market to the prejudice of his market as being too near thereto; or without the aid of the crown he may have 134 WATSON V. SUTHERLAND [part i. a common action upon the case for the prejudice to his market ; * where- as the plaintiff comes originally into court for this injunction. What great confusion would it cause to bring all the persons who use this market into contempt upon the injunction; and to what purpose? If in any case this court ought to interpose, it would be after the title was established at law; which is done here, though there are so many means of doing it. Injunctions are granted to quiet in possession, as at the time of filing the bill and three years before: but that is drawn from the equity on the statutes of forcible entries. Upon the equity founded on that statute, where there has been such possession for three years, this court will prevent beforehand : but there is no such statute in this case: it is founded on the common law, which gives the above- mentioned remedies. This court will not interpose before the title at law is established: though I will not say, that even then the court will not interpose, because of the inconveniences. WATSON V. SUTHEELAND. In the Supreme Court of the United States, 1866. [5 ^Yallace 74.] Appellants, Watson & Co., levied on certain goods — a miscellaneous stock in retail trade, suitable for the then current season, and intended to be paid for out of the sales, the goods being in the possessian of the appellee, Sutherland, a young man but a few years from Ireland, and only recently established in trade but doing a profitable business. From the time of his immigration until setting up in business for himself, he had, so the answer set forth, "been salesman in a retail dry goods store, at a small salary, so low as to have rendered it impossible for him to have saved from his earnings any sum of money sufficient to have made any real purchase of the stock." The appellants alleged that these goods had been transferred to appellee by a bankrupt firm. Wroth & Fullertoti, fraudulently, to defeat and hinder creditors. Sutherland filed *A bill to be quieted in possession, by one who possessed a water-course for sixty years, was allowed, af,'ainst a mortgagee who foreclosed the equity ot re- demption, though the title at law was not established. Prec. Ch. 530. Vide 1 Vern. 120, 129; 2 Atk. 302; 3 Atk. 726; 1 Vol. 476. In the latter cases an injunction was refused, till the title was established at law. — Re- porter's note. CHAP. IV.] WATSON V. SUTHERLAND 135 the present bill for an injunction to restrain further prosecution by the appellants of the writs, issued on their judgments against the bankrupts, alleging exclusive ownership of the property, and, by reason of the season, the nature of the goods, and his own financial condition, ir- reparable injury and commercial ruin if they were permitted to sell him out. The lower court granted a temporary injunction, which, on full hearing, was made permanent. From this decision, the appellants brought this appeal.' Mr. Justice Davis delivered the opinion of the court.' There are, in this record, two questions for consideration. Was Sutherland entitled to invoke the interposition of a court of equity; and if so did the evidence warrant the court below in perpetuating the in- jimction ? It is contended that the injunction should have been refused, because there was a complete remedy at law. If the remedy at law is sufficient, equity cannot give relief, "but it is not enough that there is a remedy at law ; it must be plain and adequate, or in other words, as practical and efficient to the ends of justice, and its prompt administration, as the remedy in equity." How could Sutherland be compensated at law, for the injuries he would suffer, should the grievances of which he com- plains be consumated? If the appellants made the levy, and prosecuted it in good faith, with- out circumstances of aggravation, in the honest belief that Wroth & Ful- lerton owned the stock of goods (which they swear to in their answer), and it should turn out, in an action at law instituted by Sutherland for the trespass, that the merchandise belonged exclusively to him, it is well settled that the measure of damages, if the property were not sold, could not extend beyond the injury done to it, or, if sold, to the value of it, when taken, with interest from the time of the taking down to the trial. And this is an equal rule, whether the suit is against the marshal or the attaching creditors, if the proceedings are fairly conducted, and there has been no abuse of authority. Any harsher rule would interfere to prevent the assertion of rights honestly entertained, and which should be judiciously investigated and settled. "Legal compensation refers solely to the injury done to the property taken, and not to any collateral or consequential damages, resulting to the owners, by the trespass." Loss of trade, destruction of credit, and failure of business prospects, are collateral or consequential damages, which it is claimed would result from the trespass, but for which compensation cannot be awarded in a trial at law. Commercial ruin to Sutherland might, therefore, be the effect of clos- ing his store and selling his goods, and yet the common law fail to reach the mischief. To prevent a consequence like this, a court of equity ^ A statement of facts has been substituted for that in the report. ' Only a part of the opinion is printed. 136 MERCHANTS NAT. BANK v. PAINE [part i. steps in, arrests the proceedings in limine; brings the parties before it; hears their allegations and proofs, and decrees, either that the proceed- ings shall be unrestrained, or else perpetually enjoined. The absence of a plain and adequate remedy at law affords the only test of equity jurisdiction, and the application of this principle to a particular case, must depend altogether upon the character of the case, as disclosed in the pleadings. In the case we are considering, it is very clear that the remedy in equity could alone furnish relief, and that the ends of justice required the injunction to be issued.' MERCHANTS NATIONAL BANK v. PAINE. In the Supreme Court of Rhode Island, 1882. [13 Rhode Island 592.] Fehruary 11, 1882. Durfee, C. J. The bill alleges that Walter Paine, 3d, one of the defendants, is indebted to the complainant by promissory note in the sum of five thousand dollars and interest, and seeks to obtain pa;^Tnent thereof out of certain equitable interests, which came to him, under the will of his father, and which he is alleged to have conveyed to one of his co-defendants for the purpose of defeating the claims of the complainant. The bill also alleges that between the making and ma- turity of the note said Paine absconded, so that he cannot be found either in this State or in Massachusetts, the State of his domicile, and that he has left no property in this State which the complainant can attach and thereby secure service in any action to recover judgment against him, and that the complainant has exhausted all its remedies at law. The defendant demurs to the bill on the ground that it does not ^ "I have no doubt this was a case of equity jurisdiction. I do not say there was no defence at law; but the remedy was doubtful," Per Spencer, J., in Ifathbonc v. Warren (1813) 10 Johns. 587, 595. And see Chancellor Wal- worth's opinion in American Ins. Co. v. Fisk (1828) 1 Paige 390. "We have the authority of Lord Hardwicke, that if a case was doubtful, or the remedy at law difficult, he would not pronounce against the jurisdic- tion of this Court. The same principle has been laid down by Lord Bathurst." — I'cr Jiullrr, ./., in Weymoiith v. Hoyer (1792) 1 Ves. Jr. 416, 424. "The defendant's printed argument is mainly devoted to the support of the proposition that the case is not within the jurisdiction of a court of equity, and that if it is technically cognizable there, the evidence should have induced the chancellor to dismiss the plaintifT's bill, and thus referred the parties to another tribunal for an adjustment of their disputes. We do not assent to this view of the case. There is certainly no reasonable grounds for denying CHAP. IV.] MERCHANTS NAT. BANK v. PAINE 137 appear by tlie bill that the claim of the complainant has ever been re- duced to judgment at law, or that execution has ever been sued out thereon. The question is whether a suit in equity can be maintained to enforce payment of a purely legal claim out of equitable assets before the claim has gone to judgment and execution at law. The counsel for the com- plainant admit that as a rule it cannot; but they contend that the only reason why it cannot is because a court of equity will not interpose until the creditor has exhausted his remedies at law, and because the best evi- dence that he has exhausted them is a judgment, when recoverable, with execution sued out thereon and returned unsatisfied for want of property. And they also contend that, when this evidence cannot be procured be- cause the debtor is absent or has absconded, leaving no attachable estate, the court will proceed without it upon other satisfactory proof. They cite a Kentucky case in which this view is fully sustained by judicial decision. Scott V. McMillen, 1 Litt. 302. They also cite cases which contain favorable dicta, some of which appear to have been expressed after care- ful consideration. Russell v. Clark's Executors, 7 Cranch, 69, 89 ; Miller V. Davidson, 8 111. 518, 522; Greenway v. Thomas, 14 111. 271; Anderson v. Bradford, 5 J. J. Marsh. 69 ; Meux v. Anthony, 11 Ark. 411, 418. They cite other cases which hold that a judgment creditor may resort to equity before execution when, the debtor being insolvent, the execution would manifestly be of no avail. Turner v. Adams, 46 Mo. 95, 99; McDermutt V. Strong, 4 Johns. Ch. 687, 689. And they cite a New York case in which the court expressed itself strongly in support of the jurisdiction, in favor of a creditor who was prosecuting a judgment recovered in another State. McCartney v. Bostwicl; 32 N. Y. 53. Besides these cases, cited by counsel, we have found other cases which emphatically support the same view, cases, indeed, from which it appears that the jurisdiction contended for has been unequivocally affirmed in that in view of the nature and subject matter of the controversy a court of equity affords the most convenient remedy for a just disposition of the questions involved in it, while a remedy afforded by a court of law is obviously inconvenient, and the adequacy of it is at least doubtful. In Appeal of Brush Electric Co., 114 Pa. St. 574, Mr. Justice Gordon said: 'A bill may be sustained solely on the ground that it is the most convenient remedy.' In support of this statement he cited Kirkpatrick v. McDonald, 11 Pa. St. 393. See, also, on this point, Drake v. Lacoe, 157 Pa. St. 17, and Warner v. McMul- lin, 131, Pa. St. 370. The cases of Whiteman v. Fayette Fuel Gas Co., 139 Pa. St. 492, and Seicickley Borough School Dist. v. Ohio Valley Gas Co., 154 Pa. St. 539, are also in point." — Per McCollum, J., in Conemaugh Gas Co. v. Jack- son Farm Gas Co. (1898) 186 Pa. St. 443, 454; S. C. 65 Am. St. Rep. 865, 866, and notes. "In the present case, we think it sufficient, that the remedy in equity is more adequate, and better adapted to reach the justice of the case, and more complete by being at once more comprehensive and effectual." — Per Shaw, C. J., in Bemis v. Lpharti (1832) 13 Pick. 169, 171. 138 ATKINSON v. LEONARD [part i. Kentucky, Virginia, Indiana, South Carolina, and Missouri. Scott v. McMillen, supra; Peay v. Morrison's Executors, 10 Gratt. 149; Kipper V. Glancey, 2 Blackf . 356 ; O'Brien v. Coulter, 2 Blackf . 421 ; Farrar v. Haselden, 9 Eich. Eq. 331; Pendleton v. Perkins, 49 Mo. 565. In the last cited case the court, after reviewing the other cases, say, p. 56S : "It seems thus to be satisfactorily settled upon authority that when the debtor has absconded, so that no personal judgment can be obtained against him, and there is no statutory proceeding by which his property can be reached, a creditor's bill will lie, in the first instance,' and from the necessity of the case. It is analogous to a proceeding to subject the equities of a deceased debtor, or to satisfy a debt from a specific equitable fund, as to enforce a lien, in neither of which cases is a personal judg- ment required." If it were true that the only reason for the rule is the exhaustion of legal remedies, we should not hesitate at all to assert the jurisdiction, for very clearly where no legal remedy exists, none can be exhausted, and the reason for the rvile would cease, and with the reason the rule itself. "Cessante ratione legis, cessat ipsa lex." There is, however, another rea- son for the rule, namely, that a court of law is the proper tribunal not only to afford a remedy for legal claims, but also to adjudicate them. It seems to be well settled, however, that a creditor may proceed in equity without first getting judgment at law, if his debtor be dead. And if he can so proceed, if his debtor be dead, there can be no insuperable reason against his so proceeding while his debtor is alive. Thompson V. Brown et al. 4 Johns. Ch. 619; O'Brien v. Coulter, 2 Blackf. 421; Steere v. Hoagland, 39 111. 264; The Unl-nown Heirs of Whitney v. Kimhall, 4 Ind. 546; Thorp v. Feltz, Administrator, 6 B. Mon. 6; Everingham v. Vanderhilt, 19 N. Y. Supreme Court, 75; Offutt v. King, 1 McArthur, 312. If the claim be one that is peculiarly fit for legal, or peculiarly unfit for equitable cognizance, issues can be framed for jury trial. The jurisdiction ought to be, if it can be. upheld, since without it a debtor may have valuable property and yet escape the pay- ment of his debts. Our conclusion is, so far as this point is concerned, that the suit can be maintained. ATKINSON V. LEONARD In Chancery, before Lord Chancellor Thurlow, 1791. [3 Brown's Chancery Cases 218.] '^](l\](>]\ to discharge a writ of ne exeat regno, obtained against de- fendant. The plaintiff's affidavit on which he obtained the writ stated that the defendant and himself were inhabitants of Antigua; that the CHAP. IV.] ATKINSON v. LEONAED 139 plaintiff had advanced various sums of money to the defendant, who was his brother-in-law; that the defendant coming into bad circum- stances and having given to other creditors bonds and powers of attorney to confess judgments, on which bonds and powers judgments had been ■entered for considerable sums, the plaintiff asked for and received sim- ilar instruments in his own favor; that during his absence from home the defendant gained possession of these instruments which he removed; that the plaintiff had never since been able to recover them ; that both parties were now in England; that the plaintiff had made several demands upon the defendant for money due, but had obtained only a small sum; that the defendant intended soon to leave England without giving se- curity for the plaintiff's demands, and if he did so, the plaintiff would be in great danger of losing his money. Upon this writ, the defendant was arrested and gave bail; and put in his answer to the plaintiff's bill, admitting the execution of the bond and warrant of attorney, but stating claims upon the plaintiff. The defendant's motion to discharge the writ was based on the ground that the plaintiff had his remedy at law, since the action was on a lost tond, oyer of which was now, under proper circumstances, excused.' Lord Chancellor^ — The real question is, whether there is a sufficient equitable demand to sustain this equitable process. — I should be sorry a process should depend on so precarious circumstances as those stated. The case in Amhler did not go to the length now urged ; the Court thought he must give security to the extent of the demand. Lord Hardwicke is there made to take a difference between the English law, as administered at Gibraltar, and the Spanish law at Minorca. In both cases justice would be equally certain. Lord Northington thought the process ought not to be extended to foreigners; that could only apply where the justice of the case would be equally certain to be done. When the question is only between a. ne exeat regno, and taking security, I easily lean to the latter ; because, beyond securing the demand, I thinlc there is no reason for the ne exeat. The justice of the Court being satisfied, I think it would be better to abandon the process, than to apply it where the pur- * While it is not safe to vouch for Lord Thurlow's private or public char- acter, his law is sound. Sir R. Pepper Arden, M. R. said of him in Carruthcrs V. Carruthers (1794) 4 Bra. C. C. 11: "That is an express decision by Lord Thurlow, * * * and though it has not the sanction of the House of Lords, it is the opinion of a great judge." The student who enjoys good English and who wishes a vivid portrait of the legal advisers of the British Government during the American troubles, Thur- low and Wedderburn (later Lord Lougborough) — "The Moloch and the Belial of their profession" — is referred to Lecky's Englai d in the XVTIIth Century (New Edn) Vol. IV. pp. 465-466: "On a single question the excellence of the slave trade — he [Thurlow] appears to have had a genuine conviction arising almost to enthusiasm." " The statement of facts has been abridged. 140 ATKINSON v. LEONARD [part i. pose can be answered by giving security; it should he used only to com- pel the party to abide by the justice of the case. I shall not contradict the case in the King's Bench (Totty v. Nesbit) ' being law; but the question is, whether this Court is ousted of its juris- diction, so that a demurrer would lie to a bill, for a lost bond, and it must be dismissed: I thought there had not been any such way of de- claring, but there must be a profcrt; but, as it is, there must be proof of the bond's having had existence and being lost. But it does not follow, because the court of law will give relief, that this Court loses the con- current jurisdiction which it has always had: and till the law is clear upon the subject, the Court would not do justice in refusing to enter- tain the jurisdiction. Therefore the writ must be discharged, on giving such security as the Master shall thinlv proper, to pay what shall be found due upon the account. 'The case is thus reported in a note in 3 Term Reports 153 — Totty v. Nesbit, Tr, 24 Geo. 3 B. R. Peckham moved for a rule to show cause why the defendant should not waive his demand of oyer and plead. This was an action on a bond. The plaintiff had before filed a bill in the exchequer for a discovery, and the de- fendant in his answer admitted that he had executed such a bond, and that he had destroyed it. Buller, J. — You have declared with a profert; and after that the Court cannot say that the defendant shall not have oyer. You should have declared that the bond was destroyed, and then it would have appeared on the record that the defendant was not entitled to oyer. All we can do for you is to order that the production of a copy shall be oyer. But the plaintiff having no copy of the bond, and only the substance of it being stated in the bill in the Exchequer, Peckham obtained a rule to show why the declaration should not be amended. The same note reports Ashurst to have said, in the case of Matison v. Atkinson, E. 27 G. 3 B. R. that the better way in case of a lost or destroyed instrument was for the plaintiflF to state in his declaration circumstances to excuse profert. The doctrine excusing profert seems not to have been finally settled until Jfcad v. Brookman (1789) 3 T. R. 151, per Grose, J., p. 161. See Toulmin v. Price (1800) 5 Ves. 235, 238. "Until a recent period, there could be no remedy on a lost bond in a Court of Common Law, because there could be no profcrt of the instrument, without which the declaration would be defective. At present the Courts of law do entertain the jurisdiction, and dispense with the profert, if an allegation of loss by time and accident is stated in the declaration. 1 Story, Eq. Jur. §181 : Read v. Brookman, 3 T. R. 151; Totty v. Neshit, 3 T. R. 153; 1 Chitty. PI. (9th Am. ed.) .305, 360; Cuffs v. U. 8., 1 Gallis. 09; Powers v. Ware, 3 Pick. 451; Smith v. Emery, 7 Halst. 53; Rees v. Ovcrbaugh, 6 Cowen 748, 749; Kelly V. Piffrjs, 2 Root 120; Hinsdale v. Mills, 5 Conn. 331." — Summer's note to Ex parte Greenway (1802) Ves. 812. In Bromley v. Holland (1802) 7 Ves. 3, Lord Eldon discusses and criti- cises the exercise of such jurisdiction by courts of law. CHAP. IV.] SWEENY V. WILLIAMS 141 Kemp v. Pryor (1802), 7 Vesey, Jr., 237, 249. — Lord Chancellor (Eldox). — * * * Farther, I cannot admit, that if the subject would have been a subject of equitable demand previously to the extension of the exercise of the principle, upon which a Court of Law is authorized to act in the action for money had and received, that Court sustaining an action, they would not have sustained forty years ago, is an answer to a bill, that would have been sustained in this Court at that time. Upon what principle can it be said, the ancient jurisdiction of this Court is destroyed, because Courts of Law now, very properly perhaps, exercise that jurisdiction, which they did not exercise forty years ago? Demands have been fi-equently recovered in Equity, which now could be without difficulty recovered at Law; as in the cases in the Exchequer upon policies of insurance ; and others, in which you may recover money, that the policy of the law would not permit to be paid : as payments upon a marriage brocage contract. If a bill was filed for such a purpose, and requiring a commission, it could not be met by demurrer or otherwise with the objection, that the Plaintiff might obtain the relief at Law ; and the Court of Law could by imparlances give the benefit of a com- mission, which this Court had been in the habit of giving. I cannot hold, that the jurisdiction is gone, merely because the Courts of Law have exercised an equitable jurisdiction, more especially in the action for money had and received. I agree, that, where money could only be recovered at Law, the prayer for a commission will have no other opera- tion in this Court than the mere consideration of the question of juris- diction, as founded upon the simple fact, that a commissiou is prayed, would give it.' SWEENY V. WILLIAMS. In the Court of Errors and Appeals of New Jersey, 1883. [36 Neiv Jersey Equity 627.] The opinion of the court was delivered by Magie, J. The bill filed in this case prayed for a perpetual injunction restrain- ing the respondent, as receiver of the Mechanics and Laborers Savings ^In a later case, Eyre v. Everett (1826), 2 Russ. 331, 332, Lord Eldon said: "There are some cases in which the Court entertains jurisdiction, though there would be a good defence at law; but that is, because the matter was ot such a kind that there was an original jurisdiction belonging to this Court; and this court will not allow itself to be ousted of any part of it3 original jurisdiction, because a court of law happens to have fallen in love with the same or a similar jurisdiction, and has attempted (the attempt for the most part is not very successful) to administer such relief as originally to be had here and here only." 142 SWEENY v. WILLIAMS [part i. Bank, the said bank and one John Halliard, from bringing or maintain- ing any action against the appellant, who was the complainant, upon a certain bond and mortgage. The bond was dated November 1st, 187G; was made by appellant to said Halliard and was conditioned for the payment of $10,000 on November 1st, 1879, with interest, and was se- cured by the mortgage, which was likewise made by appellant to Hal- liard, on lands which Halliard had simultaneously conveyed to him, and recited that it secured a part of the purchase-money. The bond and mortgage had been assigned by Halliard to said bank. These facts were averred in the bill, and appellant therein stated, as grounds for the re- lief prayed, that the transaction between Halliard and himself waa merely nominal and that no real interest was acquired by him in the lands conveyed to him, and no consideration existed for the bond and mortgage. It was also averred that an action had been lately before brought by respondent, as receiver, in the supreme court, against appel- lant, upon the bond. An injunction against proceeding in said action pending the suit in equity was also prayed. Upon the advice of Vice-Chancellor Van Fleet, the bill was dismissed, and this appeal was taken. In the opinion of the vice-chancellor it is intimated that the court of chancery might have properly declined jurisdiction in the case, on the ground that the relief claimed was available to the complainant as a defence to the action at law, and that nothing appeared to afford a reason for changing the forum of litigation. This intimation has been considered by counsel arguing before us as implying a doubt as to the jurisdiction of courts of equity in cases where the relief formerly af- forded by those courts alone, may now by statute be afforded by courts of law. I do not understand the opinion as implying such a doubt, but if it is susceptible of that construction, it is in that respect er- roneous. When courts of law have of their own motion extended their juris- diction over cases theretofore solely cognizable in equity, the jurisdiction of the latter courts has been in no respect abridged, although when the jurisdiction at law has become well established, the equity jurisdiction has been in some cases declined. Eyre v. Everett, 2 Russ. 381; Kemp V. Byor, 7 Ves. 237; Bromley v. Holland, Id. 5; Wells v. Pierce, 27 N. H. 503; 2 Spen. Eq. Jur. § 693. When, by statute, a right to administer relief previously administered only by courts of equity is extended to courts of law, the jurisdiction of the courts of equity is undisturbed, un- less prohibitory or restrictive words are used in the statute; thenceforth the jurisdictioTis are concurrent. This was the view expressed by Chan- cellor Green, in Iricl- v. Bind; 2 C. E. Gr. 189, 199, and by Chancellor Zabriskie, in Shot veil v. Smith, 5 C. E. Gr. 79. Although questioned in the cases of McGough v. Ins. Banl; 2 Ga. 151, and Riopelle v. Doell- ner, 26 Mich,. 102, the proposition is sustained by a great weight of au- thority. Aity.-Gen. v. Aspinall, 2 M. & C. 613; Cannon v. McNah, 48 CHAP. IV.] SWEENY r. WILLIAMS 143 Ala. 99; MiUsaps v. Pfeiffer, 44 Miss. 805; Case v. Fish'bacJc, 10 B. Man 40; Hall v. //a^Z, 43 Ala. 488; IFesZe?/ Church v. 1/oore, 10 Fa. 6'^. 273 Bright v. Newland, 4 Sneed 440; A^i/Jf/ v. Payan, 18 4r^^ 583; People v Iloughtaling, 7 CaZ. 348; Crai??, v. Barnes, 1 il/d C/i. 151; Payne v. 5rJZ' .ar(/, 23 il/ws. 88; Mitchell v. O^ei/, /J. 230; CZar/.- v. //enry, 9 il/o. 339; Dohyns v. McGovern, 15 il/o. 662. But if there exists a concurrent jurisdiction in courts of law and courts of equity, the latter will decline to entertain jurisdiction after the jurisdiction of the courts of law has attached, unless the relief that the applying party is entitled to ask cannot be fully obtained in the court of law. Story's Eq. Jiir. § 599; Smith v. Smith's Admr., 3 Stew. Eq. 564; Salter v. Williamson, 1 Gr. Ch. 480; Van Mater v. Sickler, 1 Stock. 483 ; Clarke v. Johnston, 2 Stock. 287. It is this proposition that I understand the learned vice-chancellor to have maintained in the opinion below. But I do not think the proposition was applied by him to this case, nor is it, in my judgment, properly ap- plicable thereto. The complainant was entitled, if at all, to a relief broader than could be afforded him in the action at law. He asked, and if his contention is correct, was entitled to a perpetual injunction against the bond. At law, his relief as to the bond could be obtained only in case the plaintiff brought his action to trial. If he discontinued or submitted to a nonsuit, the relief could not be obtained there. The complainant was also entitled to relief on the whole transaction, in- cluding the mortgage securing the bond, a relief which woiild only be incidentally rendered by a successful defence at law, and to which Hal- liard was necessarily to be a party. Adequate relief was therefore not provided in the existing action at law. I think it indisputable that the court below had jurisdiction and a right to adjudicate on the merits of the case, as was done/ In Year Book, 4 Hen. 7, 4 b (1489) Archbishop Morton, Lord €han- •cellor said: It is against reason that one executor shoidd have all the goods, and give a release by himself. I know very well that every law should be consistent with the law of God; and that law forbids that an executor should indulge any disposition he may have to waste the goods of the testator; and if he does, and does not make amends, if he is able, he shall be damned in hell.' ^ Only a part of the opinion is printed. 2 In Year Book, 13 Edw. IV. fol. 9, case 5, the chancellor said the case must be determined by the law of nature. In Calvin's case, 7 Co. 12 b. this law is thus defined : "The law of nature is that, which God at the time of creation of the nature of man infused into his heart, for his preservation and direction and this is lex aeterna the moral law, called also the law of nature." In commenting upon Archbishop Morton's case. Lord Campbell observes: ^'Equity decisions at this time depended upon each chancellor's particular 144 MYNN V. COBB [part i. In the Earl of Oxford's case (1G16) 1 Cli. Rep. 1, 4, Lord Chancellor Ellesmere said : By the Law of God, He that builds a House ought to dwell in it ; and he that plants a Vineyard ought to gather the Grapes thereof; and it was a Curse upon the Wicked, that they should huild Houses and not dwell in them, and plant Vineyards and not gather the Grapes thereof. Deut. 28. V. 30. MYNN V. COBB. In Chancery, before Lord Chancellor Ellesmere, 1603. iCary 35.] Nota in la case Mynn v. Cohh, the trust was not so fully proved as the Lord Chancellor would make a full decree thereupon, so as it should be a precedent for other causes, and yet so far proved, as it satisfied him as a private man ; and therefore in this case he thought fit to write his let- ters to the defendant to conform himself to reason; and affirmed, that if he should find the defendant obstinate, then would he rule this cause specially against the defendant, sans la tires consequence.^ notions of the law of God and the manner in which heaven would visit the defendant for the acts complained of in the bill ; and though a rule is some- times laid down as to where 'a svibpcena will lie,' that is to say, where there might* be relief in chancery, it was not until long after that, authorities were cited by eliancellors, or that there was any stated reference by them to the doctrine of the court." (1 Lives of the Lord Chancellors, ch. XXVI). ^ "The court would not charge the lands with said money, the example being dangerous." Mannayring \. Dudley (1001-2) Tothill 119. In the culminating and final struggle between law and equity represented respectively by Cole and Bacon, Lord Chancellor Ellesmere was the dominant and deciding influence in 1G16 that assured the permanent triumph of Chancery. His exercise of the right to restrain an unconscientious judgment at law was so frequent that when he was created Viscount Brackley the wits of West- minster Hall not inappropriately dubbed him Viscount Break-law. J"]llesmere cuts a gicat figure in equity and he is not improperly considered a founder if not "the earliest foinidcr of our system of equity" (Campbell's. Lives of the Chancellors, Ch. XLV.). CHAP. IV.] FRY V. PORTER 145 FREEMAN v. GOODHAM. In Chancery, before Lord Chancellor Nottingham, 1676. [1 Cases in Chancery 295.] The wife when sole, bought goods for money, and after married, and died. The goods came to the husband's hands after her death, but the debt remained unpaid. The bill by the plaintiflF, the creditor, was to discover the goods, and a demurrer thereto, which was over-ruled by the Lord Chancellor, who with some earnestness said he would change the law in that point.^ Fry v. Porter (1670), 1 Mod. 300, 307.— Kelynge, Chief Justice. I do not see how an averment or proof can be received to make out a man's intention against the words of the will. In Vernon's Case, though it were a case of as much equity as could be, it was denied to be re- ceived : and so in my Lord Cheney's Case. Here was a case of Sir Thomas Hathon, somewhat like this case, wherein no relief could be had. Vaugiian, Chief Justice. I wonder to hear of citing of precedents in matter of equity. For if there be equity in a case, that equity is an "universal truth, and there can be no precedent in it. So that in any precedent that can be produced if it be the same with this case, the reason and equity is the same in itself. And if the precedent be not the same case with this, it is not to be cited, being not to that purpose. 'In 1682, at the Easter Term, Lord Nottingham said: "The common law relieves not particular cases against the general rule, but in chancery every particular case stands on its own particular circumstances; and though in general the law will not relieve, yet equity doth, so as the example introduce not a general mischief." Hcle v. Hele (1682) 2 Cas. in Ch. 87, 93. Lord Talbot, with the principal case before him, said: "If the law as it now stands be thought inconvenient, it will be a good reason for the Legis- lature to alter it, but till that is done, what is law at present, must take place." Heard v. Stamford (1735) 3 Feere Williams 409, 411, (infra). "Equity is a Rougish thing, for law we have a measure, know what to trust to, Equity is according to the Conscience of him that is Chancellor, and as that is larger or narrower, so is Equity. 'Tis all one as if they should make the Standard for the measure we call [a Foot] a Chancellor's foot, what an uncertain measure this would be? One Chancellor has a long Foot, another a short Foot, a Third an indifferent Foot; 'Tis the same thing in the Chan- cellor's Conscience." — Scldcn, Table Talk, tit. Equity. Spence remarks, — "Selden better than any man living knew what equity really was" — 1 Spence Jurisdiction of the Court of Chancery 414, n. (a). 146 FRY V. PORTER [part ij Bridgman, Lord Keeper.^ Certainly precedents are very necessary and useful to us, for in them we may find the reasons of the equity to guide us ; and besides the authority of them who made them is much to be regarded. We shall suppose they did it upon great consideration, and weighing of the matter; and it would be very strange, and very ill, if we should disturb and set aside what has been the course for a long series of time and ages. Thereupon it was ordered that they should attend with precedents, and then, they said, they would give their opinions." ' Of Lord Keeper Bridgnian, greater as Chief Justice than Chancellor, Lord Nottingham is reported to have said: "It is due to the memory of so great a man, whenever we speak of him, to mention him with reverence and with veneration for his learning and integrity." And Lord Ellenljorough, not over-given to compliments, pronounced him "a most eminent judge, distin- guished by the profundity of his learning and the extent of his industry." ^As early as 1595-6 the case of Mears v. iit. John appears to have been de- cided upon the strength of a precedent cited from 34 Henry 6, by Sir Thomas Egerton, Master of the Rolls (afterwards Lord Ellesmere). See 4 Co. Inst. 86. "A court of equity is as much bound by positive rules and general maxims concerning property (though the reason of them may now have ceased) as a court of law is." — Per Lord Mansfield, in Doe v. Laming (1760) 2 Burr. 1100, 1108. '"Some judges, when they seem doubtful what to determine in a cause, will be inquisitive after precedents; which I cannot conceive to what purpose it should be, unless that being desirous to pleasure a friend, and the matter being of that nature that they are ashamed to do it, they would faine know, whether any before them have done so ill as they intend to do. For do they think, that if any other have done the like, it is sufficient warrant for them therefore? Surely noe! But every judge, taking upon him that weighty calling ouglit to direct his orders secundum allegata et probata, and according to the rules of a good conscience, guided by the word of God, and upon certaine knowledge of the lawes of the realm, agreeable thereunto; and soe to divide between lawe and equity, that for the particular of any private person no violence be offered to the lawe; and not to be led like a bear by the nose after other men's examples, which, if it were admitted, thei-e is no injustice, however gross and palpal)le soever, bvit might by these means easily be ex- cused." Hargrave's Law Tracts 440 — ["From the contents it (the mss.) ap- pears to have been composed in the latter end of the reign of James the first, soon after the fall of Lord Bacon and the promotion of Bishop Williams to the great seal." — Introductory note.]. "The mention of this most liberal description of equitable jurisdiction, the urbitrium boni viri puts me in mind to say a few words upon another (piestion very properly stated by you. Whether a court of equity ought to bo governed by any general rules? "It is impossible to answer this question in a satisfactory manner witliout running into several distinct ions. "S()in(! general rules there ought to be, for otherwise the great inconvenience of Ju.H vagum et incertum will follow; and yet tlie Praetor nnist not be so absohiteiy and invariably bound by them, as the judges are l>y the rules of the CHAP. IV.] MANNING v. MANNING 147 Manning v. Manning (1815), 1 Johns. Ch. 527, 529. — The Chancellor [Kent]. The claim of [an executor to] an allowance has been pressed upon the court with much zeal, as if the denial of it would be extremely un- just, and as if this court was at liberty to deal with established rules just as it pleased. This very point was one that arose in the case of Green v. Winter; and it was, then, considered as a settled rule in the English chancery, that no such allowance was admissible, unless it rested upon contract, or was given by the will. The rule there must be the rule here ; for I take this occasion to observe, that I consider myself bound by those principles, which were known and established as law in the courts of equity in England, at the time of the institution of this court ; and I shall certainly not presume to strike into any new path, with visionary schemes of innovation and improvement; via antiqua via est tuta. It would, no doubt, be, at times, very convenient, and, j)erhaps, a cover for ignorance, or indolence, or prejudice, to disregard all English decisions as of no authority, and to set up as a standard my own notions of right and wrong. But I can do no such thing. I am called to the severer and more humble duty of laborious examination and study. It was Lord Bacon who laid it down as the duty of a judge to draw his learning from books, and not from his own head. This court ought to be as much bound as a court of law, by a course of decisions ap- plicable to the case, and establishing a rule. As early as the time of Lord Keeper Bridgman, it was held that precedents were of authority; and that it would be " very strange and very ill " to disturb a rule in chan- cery which had been settled. (1 Mod. 307.) The system of equity principles, which has grown up and become matured in England, and chiefly since Lord Nottingham was appointed to the custody of the great seal, is a scientific system, being the result of the reason and labours of learned men for -a succession of ages.' It contains the most en- common law; for if they were so bound, the consequence would follow which you very judiciously state, that he must sometimes pronounce decrees, ichich would he materially unjust since no rule can he equally just in the applica- tion to a whole class of cases, that are far from heing the same in every cir- cumstance. "This might lay a foundation for an equitable relief even against decrees in equity, and create a kind of superfoetation of courts of equity." — Letter from Lord Hardicicke to Lord Karnes, 1750. Parkes' History of Chancery 501, 506. ' The language of eulogy has been exhausted in the attempt to do justice to a man who kept his hands clean as befits Equity and served the Stuarts and the cause of justice with equal success. Of the many tributes but two are cited. Lord Henley considered him "very great in the knowledge of law and Equity'" (Burgess v. Wheate (1759) 1 Eden 249), and in Kemp v. Kemp (1801) 5 Vcs. 858, Sir R. P. Arden. M. R. spoke of him as "that great Judge Lord Nottingham, styled the Father of Equity." If the father be judged by tlie offspring, Nottingham's fame is coextensive with the system of Equity which he expounded scientifically, if he did not really create. 148 MANNING v. MANNING [part i. larged and liberal views of justice, with a mixture of positive and technical rules, founded in public policy, and indispensable in every municipal code. It is the duty of this court to apply the principles of this system to individual cases, as they may arise; and, by this moans, endeavour to transplant and incorporate all that is applicable in that system into the body of our own judicial annals, by a series of decisions at home. The Master of the Rolls, Sir Joseph Jelcyll^ disclaimed any discretion- ary power in the court, sometimes ignorantly imputed to it, to follow the private affections, or any arbitrary notions of abstract justice, in- stead of the established maxims of law and equity. Though proceedings in equity are said to be secundum discretionem honi viri, yet, when it is asked, Vir bonus est quisf The answer is Qui consuUa Patrum, qui Leges, Juraque servat; (Sir J. Jehyll, in 2 P. Wms. 753. See also 3 P. Wms. 411;) and it may be laid down as a certain truth, that the English system of equity jurisprudence forms an important and very essential branch of that " common law," which was recognised in the constitution of this state. If it were not so, this court would be a dangerous tribunal, with undefined discretion, and without either science or authority to guide it. The English decisions are, undoubtedly, the most authentic evidence of the English common law; and the dignity or independence of our courts is no more affected by adopting these decisions, than in adopting the English language; or than the independence of France or Holland is wounded by following, as they do, the civil code of the ancient Romans. Our business, then, as questions arise, is to discover what rule, if any, has been established by the courts in this state, and if none, then what was the existing rule in the English system of equity at the com- mencement of our revolution. And while engaged in this inquiry, we are not to blind our eyes against human knowledge, but it is incumbent on us to examine the several authorities, whether they be ancient or modern, whether they be before or since the revolution, whether they be foreign or domestic, which may tend in any degree to ascertain, explain, or illustrate, the point under consideration. When we have been able to deduce from them, with sufficient precision, the true, genuine rule of equity, that rule becomes the law of the case, and the case a precedent for the future.^ ' In Milboxtrnc v. Milhournc (1786) 1 Cox 248, Sir Lloyd Kenyon, M. R. took occasion to refer to Lord Talbot and Sir Joseph Jekyll, whom he justly termed "both men of consummate knowledge." ^ "Whatever may be called a legislative authority in this court, I utterly disclaim ; but so far as the court have already gone in cases, so far as Lord 'Nottingham, Lord Coicpcr, Lord King, and Lord Talbot have gone in the several cases before them, I think myself under an indispensable obligation of following. "I have spent so much time principally with this view, that the work of this CHAP. IV.] GEE V. PRITCIIARD 149 GEE V. PRITCHARD. In Chancery, before Lord Chancellor Eldon, 1818. [2 Swanston 402.] The bill charged that Pritchard was proceeding to print and pub- lish, or cause to be printed and published, the letters of the plaintiff, or true copies or copy thereof, and extracts therefrom, and that he and the defendant Anderson had caused public notice thereof to be given, by advertisement in the newspapers, and otherwise, and par- ticularly in a newspaper called The Morning Post, on Friday, the 9th of July, in the words following : " In the press, and speedily will be published by William Anderson, bookseller, Piccadilly, * The Adopted Son; or, Twenty Years at Beddington,' containing Memoirs day may not be misunderstood, as if the court had departed from their former precedents." Per Lord Hardwicke, in Chesterfield v. Janssen (1750) 1 Atk. 339, 353. In Bond v. Hopkins (1802) 1 Sch. & Lef. 428, 429, Lord Redesdale observed, "There are certain principles on which courts of equity act, which are very well settled. The cases which occur are various, but they are decided on fixed principles. Courts of equity have, in this respect, no more discretion- ary power than courts of law. They decide new cases, as they arise, by the principles on which former cases have been decided, and may thus illustrate or enlarge the operation of those principles ; but the principles are as fixed and certain as the principles on which the courts of common law proceed." It is of interest to note that ]Mr. Justice Story, in quoting and relying upon this decision of Lord Redesdale terms him ''one of the ablest judges that ever sat in equity." (1 Equity Jurisprudence § 20). From this opinion one would needs be bold in^ieed to dissent. "The correctness of this principle is abundantly established by the authori- ties cited in the opinion delivered by this court in the action at law, and its application to the case most forcibly and conclusively illustrated; that it cannot be less operative in a court of equity than m a court of law is obvious. The same rules of decision govern both courts ; the former cannot any more than the latter decide in opposition to legal principles, in a case to which these principles are applicable; to do so would be an assumption of an arbitrary discretion, as pernicious to the best interest of the community, as it is contrary to the fundamental principles of our government. Even those rules of law which in their nature are technical and positive, cannot be dis- regarded by a court of equity." Per Boyle, Ch. J., in Marshall v. Craig (1812) 1 Bibb (Ky.) 394, 395. "I now come to a modern case decided in the year 1866, and it is the first time I find any Judge stating that there was any law to prohibit such a will being carried into effect. Having examined, not only the authorities I have mentioned, but some others to which I have been referred, and have 150 GEE V. PEITCHAED [part r. of a Clergyman, written by himself, and interspersed with interesting correspondence " ; and that Anderson was printing and about to pub- lish the same, or some work in which the letters, or copies thereof, or extracts therefrom, were introduced. The bill also charged, that the plaintiff never consented or agreed that the letters, or any of them, or any extracts or extract therefrom, should be published. The bill prayed that the defendants might be respectively restrained by injunctions from printing or publishing the original letters, or any copies or copy of the original letters, so written by the plaintiff, or any extracts or extract therefrom, and might be decreed to deliver up to the plaintiff, or to destroy, the original copy of the letters so taken or made by the defendant Pritchard, and all printed and other copies thereof, or of any extracts 'therefrom, which they might respectively have in their possession or power. The allegations of the bill being verified by affidavit, a motion was made for an injimction, which the Lord Chancellor, after inquiring for an instance of an injunction issued against the person to whom the letters were addressed, granted on the authority of Thompson v. Stanhope. — Amh. 737.^ Mr. Hart, Mr. Wetherell, and Mr. Sidehottom, in support of the motion to dissolve the injunction. foaiid myself, I may say, I cannot find a trace of it before the case I am about to mention, and therefore if there is such a law it must have been made in the year 1866. Now it could only have been made in the year 1866 by statute, because in the year 1866, Equity Judges did not profess to make new law, and when they state what the law is, they do not mean as might have been said two or three centuries before, that that was law which they thonglit ought to be law." — Per Sir George Jcssel, M. R., in Johnson v. Crook (1879) L. R. 12 Ch. Div. 639, 649. "I intentionally say modern rules, because it must not be forgotten that the rules of Courts of Equity are not, like the rules of the Common Law, sup- posed to have been established from time immemorial. It is perfectly well known that they have been established from time to time — altered, improved, and refined from time to tiine. In many cases we know the names of the Chancellors who invented them. No doubt they were invented for the purpose of securing the better administration of justice, but still they were invented. Take such things as these: the sejjarate use of a married woman, the restraint on alienation, the modern rule against perpetuities, and tne rules of equitable waste. We can name the Chancellors who first invented them, and state the date when they were first introduced into Equity jurisprudence; and, there- forf. in cases of this kind, the older precedents in Equity are of very little vnliic. Tlic doctrines are progressive, refined, and improved; and if we want 1o know what tlie rules of I<]quily are we nuist look, of course, rather to the n;ore modern than the more ancient eases." — -Per Sir George Jcssel, M. R., In re llallctVs Estate (1879) 1.3 Ch. Div. 696, 710. ' Only a part of the statement of the case and the pleadings is given. CHAP. IV.] GEE V. PRITCIIAED 151 The Lord Ciiancellou.' It will not be necessary to trouble you with that view of the case. The publication of a libel is a crime; and I have no jurisdiction to prevent the commission of crimes; excepting, of course, such cases as belong to the protection of infants, where a dealing with an infant may amount to a crime — an exception arising from that peculiar jurisdiction of this court. Argument in support of the motion resumed. An attempt will be made to sustain the injunction, on the ground that the publication of the letters will be painful to the feelings of the plaintiff. The Lord Chancellor. I will relieve you also from that argument. The question will be, whether the bill has stated facts of which the court can take notice, as a case of civil property, which it is bound to protect. The injunction cannot be maintained on any principle of this sort, that if a letter has been written in the way of friendship, eitlier the continuance or the discontinuance of that friendship affords a reason for the interference of the court. Argument in support of the motion resumed. The injunction then must rest on one of two grounds: 1. That the plaintiff possesses, in the letters, a property either general or literary; 2. That the publication of them is a breach of trust. It will be difficult to establish, that letters may be the subject of literary property. The cases of Pope v. Curl, 2 Atk. 342, and Thompson V. Stanhope, Amh. 737, render it doubtful to what extent the court recognizes the doctrine of property in letters. Thus Pliny's letters are said to have been written or revised for publication, Plin. Episi. I. 1, ep. 1. The Lord Cil\ncellor. My predecessors did not inquire whether the intention of the writer was or was not directed to publication. The difficulty which I have felt in all these cases is this : If I had written a letter on the subject of an individual, for whom both the person to whom I wrote and myself had a common regard, and the question arose for the first time, I should have found it difficult to satisfy my mind that there is a property in the letter; but it is my duty to submit my judgment to the authority of those who have gone before me; and it will not be easy to remove the weight of the deci- sions of Lord Llardwicke and Lord Apsley. The doctrines of this court ought to be as well settled, and made as uniform almost as those of the common law% laying down fixed i^rinciples, but taking care that they are to be applied according to the circumstances of each case. ' In thinking of English Chancery the name of Eldon at once occivrs and his name has, to use a phrase of Lowell's, "grown smooth as honey on the lips of man." The judgments of Sir Thomas Plumer are far from impeccable but he was happily inspired when he termed his chief "the greatest judge in this country." {Copis V. Middlcton (1817) 2 Madd. 433). The student is referred to the life of Lord Eldon, in 3 volumes, by Horace Twiss. 152 GEE V. PKITCHARD [part i. I cannot agree that the doctrines of this court are to be changed with every succeeding judge. Nothing would intiict on me greater pain^ in quitting this place, than the recollection that I had done anything to justify the reproach that the equity of this court varies like the Chancellor's foot. I understand the Vice-Chancellor in the case of Lord and Lady Perceval v. Phipps, 2 Ves. & Beam. 19, not to have denied Lady Perce- val's property in the letters, but to have inferred, from the circum- stances, that she had authorized, and for that reason could not complain of, the publication. Argument in support of the motion resumed. Letters between public functionaries on public business, or between private individuals on private business, where the nature of the sub- ject discussed made it evident that the correspondence could not be designed for publication, may constitute an exception. The Lord Chancellor. Are the cases which establish the juris- diction founded in a right to restore the property, or to restrain the publication ? I think that the decisions represent the property as quali- fied in some respects; that by sending the letter, the writer had given, for the purpose of reading, and, in some cases, of keeping it, a prop- erty to the person to whom the letter was addressed, yet, that the gift was so restrained, that ultra the purposes for which the letter was sent, the property was in the sender. If that is the principle, it is immaterial whether the publication is for the purpose of profit or not. If for profit, the party is then selling; if not for profit, he is giving, that, a portion of which belongs to the writer. I doubt whether the court has proceeded so far as to decree the restoration of letters; for the principle on which it interferes recognizes a joint property in the writer and the person to whom they are addressed. Argument in support of the motion resumed. It is clear that the defendant was entitled to retain the letters, arid retaining, to read and show them to his friends or to strangers. These modes of publication there is no pretence for restraining: upon what principle then can the publication by printing be restrained? An equity, or jus proprietaiis, in the plaintiff, must apply equally to every mode of publication, and, confessedly, not authorizing the restraint of some modes, cannot by any rational distinction authorize the restraint of any mode. The argument is the same, whether the supposed right of the plaintiff is founded in property or breach of confidence. The Lord Chanckllor. Does the common iniunction ever go so far? When the court enjoins a defendant from publishing the book of an- other, has it ever restrained him from reading it, or showing it to his friends? Such an injunction will not prevent the defendant from carrying the book to a reading-room, or reciting it in public company;' * Acting a dramatic composition on the stage, is not a publication, within CHAP. IV.] GEE V. PRITCIIAED 153 but is that a reason for not restraining publication? The usage limits the extent of the jurisdiction. Argument in support of the motion resumed. Admitting that the right of proi^erty in the persons receiving the let- ter is qualified, the question whether that right of property includes a right of publication must depend on the circumstances of each case. WTienever the writer is entitled to the restoration of the letter, the party from whom he is entitled to recover it can have no right of publication. The exclusive property in the manuscript includes every right of using it, and, among other uses, for the purpose of publication. But where the correspondent is entitled to retain tlie manuscript, gi'eat difficulty occurs in restricting his right of pub- lication. In this case the defendant was unquestionably entitled to retain the letters; and he is now entitled to publish them for the vindication of his character. The cases of Pope v. Curl, and Thompson v. Stanhope, proceed, on the supposition, that the person in possession of the let- ters was the depositary only, and not the proprietor; but whenever the person to whom they are sent is entitled to retain them, being pro- prietor of the substance on which they are written, he is proprietor of their contents, and may therefore publish them. The injunction in V. Eaton, 13 April, 1813, 2 Ves. & Beam. 23, 2T, was granted on the fact of purchase of the letters by the writer from the defendant. On the ground of breach of trust, of which there is no evidence, the injunction could not be maintained; this court interferes with publi- cations only as the subject of property — Southey v. Sherwood, 2 Mer. 435. The injunction in the Earl of Granard v. Dunkin, 1 Ball & Beat. 207, was founded on a right of property in the receiver of the letters. The Lord Chancellor. The question is, what is the conduct of the plaintiff, which, by the defendant's affidavit, is represented as his justification in the publication of the letters? If the court possesses jurisdiction by reason of a right of property, and if the principle of the decision in Lord and Lady Perceval v. Phipps would require me to declare, that, notwithstanding that right of property, the plaintiflE's conduct had been such, that she was not entitled to the interference of the court, the defendant is at liberty to insist on either or both of those points; provided that he is not concluded by the act which Lord Apsley so strongly censured, of returning the originals and retain- ing copies. That act is particularly stated in the bill as an abandon- ment of property. If the defendant had any right of property, it was in the originals. He has not averred that the letters will prove the statement in his affidavit, though that is to be inferred. The defend- stat. 8 Ann. c. 19; but injunctions have been granted to restrain acting as an invasion of copyright. Morris v. Kelly, 1 Jac. & Walk. 48L. 154 GEE V. PRITCIIAKD [part i. ant might destroy the letters,' and so destroy the plaintiff's expecta- tion of profit from them. Sir Samuel Romilly' and Mr. Roupell for the injunction. It has been decided, fortunately for the welfare of society, that the writer of letters, though written without any purpose of profit, or any idea of literary jiroperty, possesses such a right of property in them, that they cannot be published without his consent, unless the pur- poses of justice, civil or criminal, require the publication.^ It is not necessary that they should be written for profit : Dr. Paley having pre- pared sermons designed for gratuitous distribution among his parish- ioners, the court held that his executors possessed a property in them, and, at their instance, interfered to restrain the publication by a book- seller. The question here is, whether the defendant has established that he is about to publish these letters for purposes essential to jus- tice ? Without that proof he cannot avail himself of the decision in Lord and Lady Perceval v. Phipps, a decision which admits much re- mark. No such case is established by his affidavit, and for the pur- pose of establishing one, a course more effectual than any affidavit would have been the production of the intended publication. The publication, not of a simple narrative of facts, but of a novel, is an extraordinary expedient for the vindication of character. The Lord Chancellor. The decision of the Vice-Chancellor pro- ceeded on the principle, that in that case the publication was necessary for the purposes of justice; the letter of the defendant, written in April, is decisive, that the publication here is not necessary for those purposes. What occasion was there for the defendant to inform the public, that he intended certain papers for distribution among his pri- vate friends? Argument for the injunction resumed. The present decision will constitute a most important precedent. 'See VVooddson Lectures, 415. — Reporter's note. -Inasmuch as Sir Samuel Romilly (not to be confused with his eminently respectable son, Sir John, Master of the Rolls) is generally considered as the t\qie, and model of man and lawyer, the editor cannot omit the opportunity of this passing mention, to refer to the delightful Life and Letters of Sir Sam- uel edited by his sons. Tlie reference is all the more appropriate inasmuch as the doctrine of the principal case is often credited directly to Sir Samuel rather than to Lord Kid on "At etiam literas quas me sibi misisse diceret, recitavit, homo et humani- tatis expers, et vita? communis ignarus. Quis enim unquam, qui paululilm modo bonorum consuetudinem nosset, literas ad sc ab amico missas, oflFensione aliqua interposita, in medium protulit, pali\mque recitavit? Quid est aliud lollere ft vita vita; societatem, quam tollere amieorum colloquia absentium? QuAm multa joca solent esse in cpistolis, qua- prolata si sint, inepta esse videantur? Quam multa seria, neque tanicn ullo niodo divulganda?" Cic. Phil ii. — Reporter's note. CHAP. TV.] GEE V. PRITCIIARD 155 If, on these affidavits, the injunction is dissolved, no man can be re- strained from publishing the letters which he has received from another; all that will be necessary to authorize the publication is a quarrel, an assertion, that the disclosure is required for the vindication of his character. When the defendant returned the originals, clandestinely retaining copies, he abandoned all right of property in the letters. The Lord Chancellor. This case came originally before me on a motion made ex parte by the plaintiff Mrs. Gee, the widow of the father of the defendant, who is represented in the pleadings as his illegitimate son. The affidavit of the defendant states his introduc- tion in that character; that he was known and received as a son, and treated by his father and his wife with great kindness; the affidavit seems to intimate some dissatisfaction with the representation made in the bill, of the circumstances of his introduction ; that is, perhaps, not very material, not a matter which much blends itself with the con- sideration that I must give to the subject; but his introduction is cer- tainly represented differently in the bill and in his affidavit. It is stated, that the plaintiff entertained a great kindness for him, and that she expressed that kindness by letters in the life of his father. I col- lect from the last affidavit, that Mr, Gee gave to the defendant a legacy of £4,000; the interest, for life, of £6,000, devoting the principle of that sum for the benefit of his children ; and that he gave to the plain- tiff the interest of £1Y,000 for her life, with a power which, under the circumstances, appears to me not unfit, to appoint that sum, not by deed merely, but by deed or will; and I am bound to take it to be his pleasure, that she should have the power, during the whole course of her life, of judging to whom, at her death, it should devolve; an abso- lute power, of the exercise of which no person has any right to com- plain. The testator also declares, that if his widow does not think proper to make a different disposition, that sum shall go to the de- fendant; but as, between the defendant and the plaintiff, the rule by which I am governed, is the will of his father. I understand that it was the intention, that he should have the living which he now has, which was in the gift of Mr. Gee's brother, but not vacant at his death ; the plaintiff contends, that she in some sense obtained it for him; it is not going far to conjecture, that if she had opposed, it would not have been given to him. The defendant had thus received £4,000 from his father's bounty, and the interest of £6,000, and had this contingent right in £17,000, with the prospect of the rectory. The plaintiff represents, that during many years she had addressed to the defendant letters of a private and confidential nature; that she afterwards had reason to be dissatisfied with his conduct, and they had ceased to be on terms of friendship; and as evidence of his in- tention to publish the letters, her affidavit states the advertisement. The defendant represents, that he neither did nor docs intend to publish the letters for profit ; and insists, that it is too hard a criticism to 156 GEE V. PRITCHAKD [part i. infer from the words, " to publish," after this explanation, that he must be understood to mean publication for sale; and yet I cannot but think, that the defendant will, on reflection, admit, that if it was his in- tention merely to give these letters to his friends and relations, it was not prudent to announce his intention by advertisement. The adver- tisement thus held out to the public, though of a publication intended only for private circulation, has this effect, that those who see the publication know its nature, but those who saw only the advertisement, might have been led to believe, that there was something in the letters more to the disadvantage of those concerned, than they really contained; and I cannot think this a prudent course. It has been said that the bill contains no allegation of a right of property; but there is an express charge, that by returning the origin- als, the defendant Pritchard abandoned any right of property which he might have had in the letters. The defendant Anderson has not ■filed any answer or affidavit; but I am bound, by the affidavit of the defendant Pritchard, to believe that he did not intend to publish the letters for sale. With reference to charges of wounding feelings, looking at the jur- isdiction of the court to be, if not entirely, mainly, relative to the ques- tion, whether the plaintiff has or has not, property, I shall trouble my- self no farther than by simply stating the circumstances of the case as they appear in the affidavits; if they prove a breach of trust, a viola- tion of a pledge which has been given to the plaintiff, concerning these letters, that is not the grovmd on which I profess to proceed; but it is necessary to refer to this for the purpose of pointing out the extreme difference between this case and the ease of Lord and Lady Perceval V. Phipps. The argument of Mr. Wetherell has confirmed doubts which have often passed in my mind relative to the jurisdiction of this court over the publication of letters; but I profess this principle, that if I find doctrines settled for forty years together, I will not unsettle them. I have the opinion of Lord Hardwicke and of Lord Apsley, pronounced in cases of this nature, which I am unable to distinguish from the present. Those opinions have been acquiesced in without application to a higher court. If I am to be called to lend my assistance to un- settle them, on any doubts which I may entertain, I will lend it only when the parties bring them into question before the House of Lords. The statement of the defendant's affidavit I take to be true, as I must have taken his answer. I cannot trust myself with any such question, as whether Mr. Gee should have left to him a larger fortune; what were the expectations that he might form in consequence of what passed between him and his father, is a point on which I cannot enter. The provision made by the will is th^t which this court is bound to say, as between the father and the son, must be considered jiroper. The defendant may most honestly entertain an opinion that CHAP. IV.] GEE V. PRITCHARD 157 more was intended ; but when I see such a power given to the widow, I must understand that his father meant that, to the time of her death, her will should be free. Supposing the affidavit of the defendant to have stated, with a great deal more precision, the representations which seem to him to call in question his veracity, and in consequence of which he is under a be- lief that it becomes him to set himself right in the opinion of the "world, the plaintiff's representations, that the defendant's marriage was disapproved by herself and her husband, and so as to all the rest; it would have been a more welcome duty to have considered, first. Whether the court has jurisdiction on this subject; secondly. Whether the motives which the defendant states to have led to this publication were so created by the plaintiff's conduct, that I ought to follow the ■example of the Vice-Chancellor in Lord and Lady Perceval v. Phipps, and to say, that, let it be ever so clear that the plaintiff has either a sole or a joint property in the letters, the court will not interfere be- tween the parties; but the affidavits state a transaction with regard to the letters, with no part of which am I acquained, except what ap- I)ears in the affidavits. Repeating that the testator had left £17,000 to the discretion of the plaintiff, that she had given to the defendant £4,000 since the testator's death, and had, at least in her own judg- ment, been instrumental in obtaining the living which he now holds, lier affidavit, asserting her husband's intention to intrust to her a con- trol on the defendant's conduct (and I take the facts to be, that she had given to him various sums, and that he continued to press for money), proceeds to state that the defendant returned her letters, having first taken copies, and now threatens to publish them. Whether that is an act which, if it can be done, ought to be done, the defend- ant is to decide. I am to decide whether it can be done. If it is sup- posed, that by reading the letters any impression may be made on my mind different from that which I am about to state, I will forbear to state it, till I have read them; otherwise I am now ready to proceed. The counsel for the defendant intimated, that they had read one of the letters and thought it unimportant. The Lord Chancellor. I am of opinion, that the plaintiff has a •sufficient property in the original letters to authorize an injunction, unless she has by some act deprived herself of it. Laying out of the case much of what Mr. Wetherell has urged with so much ingenuity, I say only that though a letter is a subject of property, capable of be- ing much more largely dealt with, in communication, than books, as, by reading to others, repeating passages, etc., yet the court has never iDeen alarmed out of the practice of granting injunctions relative to letters to the extent to which it grants them in the case of books, be- -eause persons may assemble others, and read and recite to them: it is not deterred from giving that relief because it cannot give other relief more effectual. I68": GEE L'. PRITCHARD [part i. In stating what Lord Hardwicke says on the subject, though I can- not at the moment refer to eases, I state that which, in cases, has been handed down as the law of the court. In Pope v. Curl, Lord Hardwicke went out of his way to state what he thought the doctrine on the sub- ject of letters. Though the letters of eminent men, no one can suppose that they were all meant for publication; there are many passages in Swift's letters which he would be unwilling to have published. Lord Hardwicke says, " Another objection has been made by the defendant's counsel, that where a man writes a letter it is in the nature of a gift to the receiver; but I am of opinion that it is only a special property in the receiver: possibly the property of the paper may belong to him, but this does not give a license to any person whatsoever to publish them to the world." If he had stopped there, doubt might have been entertained whether the receiver was not at liberty to publish them to the world, but he proceeds, " for, at most, the receiver has only a joint property with the writer." 2 Atk. 342. No one can read the case of Thompson v. Stanhope without seeing that this was understood at that time to be the doctrine of the court. Publication was there advertised in November, and the application to the court not made till March, and on that circumstance Lord Apsley proceeded in recommending the arrangement which he afterwards mentions : " The executors cannot be said to have given their con- sent, though his Lordship thought they would have done better if they had applied earlier, before the expense of printing was incurred." Amh. 739, 740. That is a strong part of the case. Those were letters of two classes, written by a father to his son; one class relating to the characters of individuals. The communication being made by letter is prima facie evidence, that that is all the communication which, on the subject of those characters, the writer intends to make. So of what relates to education : though they concern public characters, and a public subject — education, no one can maintain, that those discussions, found in private letters gave to the person who received the letters a right to carry into public the opinions of the writer on those public characters, and the system of education. Lord Apsley therefore granted the injunction, observing, that the defendant " did very ill in keeping copies of the characters, when Lord Chesterfield meant that they should be destroyed and forgotten." Lord Apsley also cites the case of Mr. Forrester,^ which certainly does not apply to letters. I believe the parties came to a compromise. The doctrine is thus laid down, following the principle of Lord '"In llio f-aso of Mr. Forrester v. Waller, 13 June 1741, an injunction for printing tlie plaintiff's notes, gotten surreptitiously without his consent, was granted." 4 T'.urr. 2;?31. In Donaldson r. Beckett, 2 Bro. P. C. Ed. Toml. 129, is enumerated anumg other "injunctions for printing unpuhlished MSS. with- out license from the author, 13 June 1741; Forrester v. Waller, for Forrester's Reports." Id. 138. CHAP. IV.] GEE V. PRITCIIARD I'S^; Ilardwicke: I do not say that I am to interfere because the letters are written in confidence, or because the publication of them may wound the feelings of the plaintiff; but if mischievous effects of that kind can be apprehended in cases in which this court has been accustomed, on the ground of property, to forbid i)ublication, it would not become me to abandon the jurisdiction which my predecessors have exercised, and refuse to forbid it. Such is my opinion; and it is not shaken by the case of Lord and Lady Perceval v. Phipps. I will not say that there may not be a case of exception, but if there is, the exception must be established on ex- amination of the letters; and I think that it will be extremely difficult to say where that distinction is to be fomid between private letters of one nature, and private letters of another nature. For the purposes of public justice publicly administered, according to the established institutions of the country, the letters must always be produced ; I do not say that of justice administered by private hands; nor do I say that there may not be a case, such as the Vice-Chancellor thought the case before him, where the acts of the parties supply reasons for not interfering: but that differs most materially from this case. In April last, the defendant having so much of property in these letters as be- longs to the receiver, and of interest in them as possessor, thinks proper to return them to the person who has in them, as Lord Hard- wicke says, a joint property, keeping copies of them without appris- ing her, and assigning such a reason as he assigns for the return. Now I say, that, if in the case before the Vice-Chancellor, Lady Perceval had given to Phipps a right to publish her letters, this case is the converse of that ; and that the defendant, if he previously had it, has renounced the right of publication. On these grounds the injunction must be continued. Motion refused.* ' "There are only two grounds upon which it has been insisted that private letters are an exception from the general doctrine. The first is, that the transmission of the letters vests the whole property in tae receiver, and op- erates as an absolute gift. The second, that if the writer retains any property at all, it is only in such letters as are stamped with the character and possess the attributes of literary compositions. "The first ground of exception, as plainly overruled by the decisions, was very properly abandoned by the counsel of the defendants. He rested his whole argimient upon the second; and, holding himself excused from any closer ex- amination of the English cases, relied upon the decision of Chancellor Wal- worth, in Hoyt v. McKenzie, as a binding and conclusive authority. (13 Barb. Ch. Cases. 324.) "The proposition Avhich we hold to have been settled as law, for more than a century before the judgment in Hoyt v. McKenzie was pronounced, is that which was laid down by Sir Samuel Romilly, and affirmed b]- the decision ot Lord Eldon, in Gee v. Pritchard (2 Swanston, 418). It is that "the writer of letters, though written without any purpose of publication or 160 HILLS V. UNIVEESITY OF OXFOED [part i. COMPANY OF STATIONEKS CASE. In Chancery, before Lord Chancellor Nottingham, 1681. [2 Cases in Chancery 76.]' The king granted to the company of stationers the printing and vend- ing of statute books. The defendant caused the statutes to be printed in Amsterdam, and in great bails and quantities to be imported to sell where they remained. The plaintiffs exhibited a bill complaining of it. The defendants appeared, but the time of answer was not expired till the 1st of October: I moved that the books might remain at the custom- house till answer. On debate. The Lord Chancellor ordered an injunction to stay the books there, not only till answer, but in perpetuum ; for the printing of the laws was matter of state, and concerned the state.^ But for other books, viz. the Whole Duty of Man, and other like books being imported and staid, he left them to the ordinary course. HILLS V. UNIVERSITY OF OXFORD. In Chancery, before Lord Keeper Guilford, 1684. [1 Vernon 275.] In the eighth year of King Charles the First, there was a patent granted to the University of Oxford to print bibles and other books not prohibited. 30 Martij. 8 Car. that patent is confirmed, and limits that profit, or any idea of literary property, possesses such a right of property in them that they can never be published without his consent, unless the purposes of justice, civil or criminal, require the publication." If tliis proposition be true, it follows that the distinction which has been supposed to exist between letters possessing a value as literary compositions, and ordinary letters of friendship or business, is wholly groundless. The right of property is the same in all, and in all is entitled to the same protection." Per Duer, J., in Woolsry v. Judd (18.55) 4 Duer, .379. Lack of space prevents the printing of this admirable opinion. The student cannot afford to neglect it. ' For subsequent proceedings against third parties in the same case, see 2 Cas. Ch. <)3. ' In Anonimous (1682) I Vern. 120 it was urged that Chancery was a Court of State and inasmuch as the sale of English Bibles printed beyond the CHAP. IV.] GYLES V. WILCOX 161 there shall be but two presses and three printers. The plaintiffs claim as the King's printers, undtT several patents continued down by mesne assignments, and bring their bill to restrain the defendants from print- ing bibles, &c. And it was observed, that the bible was translated at the King's own charge; so that the copy was his; and that printing was brought in by Henry 6th at his own charge. The Lord Keeper was of opinion, that it was never meant by the patent to the University, that they should print more than for their own use, or at least but some small number more, to compensate their charge: but as they now manage it, they would engross the whole profit of print- ing to themselves, and prevent the King's farmers of the benefit of their patent : however he said, the validity of the several patents was a matter proper to be determined at law, and the plaintiffs were now proper only for a discovery, and therefore ordered that the plaintiffs should bring an action at law in the King's Bench, against the University, or the defendants Parker and Guy who claimed under the patent to the Uni- versity, and that it should be tried at the bar: and the defendants were to admit they had printed a competent number of bibles at the trial. And though the plaintiffs pressed much for an injunction to stay the University printers from going on with the printing of bibles until the trial had settled the right, yet the Lord Keeper refused to grant it, in regard that in case the right should be found with them, they would by such prohibition receive a prejudice, that he could not compensate nor make good to them. GYLES V. WILCOX. In Chancery, before Lord Chancellor Hardwicke, 1740. [2 Atkyns 141.] A bill was brought by Fletcher Gyles, bookseller, for an injunction to stay the printing of a book in octavo, intitled Modern Crown Law; it being suggested by the bill to be colourable only, and in fact borrowed verbatim from Sir Matthew Hales Pleas of the Crown, only some old sea cause great miscliief, public policy might require the Court of State to en- join the sale. But Lord Keeper North said: "I do not apprehend the Chancery to be in the least a Covn't of State; neither can I grant an injunction in any case; but where a man has a plain right to be quieted in it." He therefore recommended a trial at law to establish the right, "and when the trial is over, come back again." 162 GYLES V. WILCOX [part i. statutes have been left out which are now repealed; and in this new work all the Latin and French quotations in the llistoria Placitorum Coronas are translated into English; and for this reason it is insisted the de- fendant is within the letter of an act of parliament, made in the eighth year of queen Ann, c. 19. intitled, An act for encouragement of learning, by vesting the copies of printed books in tlie authors, or purchasers of such copies, during the term of fourteen years. Lord Chancellor. The question is. Whether this book of the New Crown Law, which the defendant has published, is the same with Sir Matthew Hale's Histor. Placit. Corona?, the copy of which is now the property' of the plaintiff. Where books are colourably shortened only, they are undoubtedly with- in the meaning of the act of parliament, and are a mere evasion of the statute, and cannot be called an abridgment. But this must not be carried so far as to restrain persons from making a real and fair abridgment, for abridgments may with great propriety be called a new book, because not only the paper and print, but the inven- tion, learning, and judgment of the author is shewn in them, and in many cases are extremely useful, though in some instances prejudicial, by mistaking and curtailing the sense of an author. If I should extend the rule so far as to restrain all abridgments, it would be of mischievous consequence, for the books of the learned, les Journels des Scavans, and several others that might be mentioned, would be brought within the meaning of this act of parliament. In the present case it is merely colourable, some words out of the His- tor; a Placitorum Coronae are left out onh% and translations given instead of the Latin and French quotations that are dispersed through Sir Mat- thew Hale's works ; yet not so flagrant as the case of Read versus Hodges, for there they left out whole pages at a time: but I shall not be able to determine this properly, unless both books were read over, and the case fairly stated between the parties. Mr. Attorney General has said I may send it to law to be determined by a jury; but how can this possibly be done? It would be absurd for the chief justice to sit and hear both books read over, which is abso- lutely necessary, to judge between them, whether the one is only a copy from the other. The court is not under an indispensable obligation to send all facts to a jury, but may refer them to a master, to state them, where it is a ques- tion of nicety and difficulty, and more fit for men of learning to inquire into, than a common jury. This I think is one of those cases where it would be much better for tlic parties to fix upon two persons of learning and abilities in the possession of the law, who would accurately and carefully compare them, and report their opinion to the court. The IIouRo of Lords very often, in matters of account which are ex- tremely perplexed and intricate, refer it to two merchants named by the CHAP. IV.] BOULTON V. BULL 163 parties, to consider tho case, and report their opinions upon it, rather than leave it to a jury ; and I should think a reference of the same kind in some measure would be the properest method in the present case.' BOULTON V. BULL. In Chancery, before Lord Chancellor Loughborough, 1796. [3 Vesey 140.] Boulton and Watts had obtained a patent for a fire-enpine ; under which they had been in possession twenty-seven years/ The bill was filed for an injunction to restrain Defendants from infringing the patent; and an injunction was obtained, that the question as to the validity of the patent might be tried in an action. The Plaintiffs brought an action in ihe Court of Common Pleas; and obtained a verdict, subject to the opin- ion of the Court upon a case stated. Upon argument of that case the Court was equally divided.' Mr. Graham and Mr. Alexander moved to dissolve the injunction. Attorney General [Sir John Scott], for the Plaintiffs. It is the most ordinary jurisdiction of the Court to say, they will not alter the posses- sion, till the right is decided. In the case of waste it is the specific right of the party to have the interference of the Court. In that case the Court would not permit the timber to be cut upon giving security for the value. So here there is a specific right, which the law will protect. I admit, we are bound to bring another action. Lord Chancellor [Loughborough]. I cannot put the patentees upon the acceptance of terms, that upon collateral reasons they think may be disadvantageous to the exercise of the right, of which they are in full possession : neither can I put them out of possession upon the difference of opinion of the Court. That is not the fault of the Plaintiffs. What has passed in the Court of Common Pleas does not shake their right; but strongly supports it. The verdict, though it has failed of effect, is not to be disregarded. The opinions of the Judges on both sides are de- serving of great respect. If nothing can be done upon this, there must be another action. In the mean time the injunction must be continued. I will not put them to compensation. I will not disturb the possession of their specific right. It is of notoriety, that this fire-engine has been erected in many parts of the country with great advantage. ' See same case in 3 Atk. 269 in which the question of infringement was re- ferred to two arbiters for report. 'The patent, which was originally granted in 1769 for 14 years, was by Stat. 15, Geo. III. renewed for 25 years. — Reporter's note. '2 H. Blackst. 453; Hornblower v. Bolton, 8 Term Rep. 95.— Reporter's note. 164 LIVINGSTON v. VAN INGEN [part i. For the Defendants. It was then desired, that the action might be brought in the Court of King's Bench : to which it was answered, that they might have a special verdict in the Common Pleas; upon which there might be a writ of error. Lord Chancellor. I will not lay them under any terms in bringing the action.' LIVINGSTON V. VAN INGEN. Court of Errors of New York, 1812. [9 Johnson 507.] On appeal from the decree of the Chancellor refusing an injunction prayed by Robert E. Livingston and Robert Fulton to whom the legis- lature of the state had granted the exclusive right of " Constructing, making, using, employing, and navigating all and every species or kinds of boats, or water craft which might be urged or impelled through the water by the force of fire or steam, in all creeks, rivers, bays and waters whatsoever within the territory and jurisdiction of New York." The bill alleged that the respondents in contravention of this exclusive right were navigating a steamboat upon the Hudson without any license from the appellants. Kent, Chief Justice." If the legal right be in favor of the appellants, the remedy prayed for by their bill is a matter of course. One of the learned counsel for the respondents, with his usual frankness, seemed, in a great degree, to concede this point. Injunctions are always granted to secure the enjoyment of statute jirivileges of which the party is in the actual possession, unless the right be doubtful. This is the uniform course of the precedents. I believe there is no case to the contrary; and the decisions in the English Chan- cery, on this point, were the same before as since the American revolu- tion ; and we are, consequently, bound by them as a branch of the common law. It appears, by the facts stated in the bill, and which we must take to be true, as they have been sworn to, and are not answered or denied, that the appellants had been, for three years, in the actual and exclusive enjoyment of their statute privilege when the respondents in- terfered to disturb that right and that enjoyment. It will be necessary to attend, for a moment, to the most prominent English cases, on the subject of injunctions; and on this point I shall be very brief. ' Ilarnier v. Plane, post, vol. xiv., 1.30; Hill v. Thompson, 3 Mer. G22. — Re- poitfr's note. -Only ;i juirt of llic ()i)inion cf tlio learned Chief Justice is given. CHAP. IV.] LIVINGSTON i^. VAN INGEN 165 In Gyles v. Wilcox and others, which was as early as the year 1740, (2 Atk. 141. S. C. 3 Atk. 209,) there was a bill filed for an injunction to stay the printing of a book, on suggestion, that the book, pretend- ing to be a different work, was in truth, an invasion of the complainant's copyright, under the statute of Anne. The lord chancellor referred the cause, by consent, to arbitrators, to examine whether the one book was a copy from the other ; and though that point was not clear, he allowed an injunction and continued it in the mean time. So, also, in the case of Blackwell t'. Harper, in the year 1740, (2 Atk. 92,) a bill was exhibited to establish a right under a statute of 8 Geo. II. c. 13, for encouraging the arts of designing, engraving, &c. and to restrain the defendant from copying the complainant's engravings of medicinal plants, and an in- junction was decreed, though the statute said nothing about an injunc- tion, and had given, as against the offender, a forfeiture of the plates and sheets engraved, and an additional penalty of five shillings for every print, to be recovered by suit at law. In another case, in the same year, 1740, before the same chancellor, (1 Ves. 476,) he admitted, that when the right appeared by matter of record, or was grounded upon an act of parliament, it was a foundation for an injunction before answer. These cases I have particularly selected, because two of them w'ere cases of injunction, founded on a statute right, and where the statute had also given a forfeiture, and because these cases were long before our revolu- tion, and were the decisions of so correct and distinguished a chancellor as Lord Hardwicke. It is impossible, in any cause, to produce cases more in point or more controlling; and they put the authority and duty to grant an injunction, in a case of clear statute right, beyond contradiction. There are many other cases in the English Chancery, to the like effect, all of which I shall not stay to examine. (Baskett v. Parsons, 1718, decided by Sir J. Jekyl, and cited in 13 Ves. 493 ; Smith v. Clark, Dick. 455 ; Hicks v. Eaincock, Dick. 647; Pope v. Curl, 2 Atk. 342; Bell v. Walker and others, 1 Bro. 451.) It will be sufficient, by referring to a few of them, to show the uniform language of the equity courts. The case of The City of London i'. Pughs (3 Bro. Ch. Cas. 374) arose as early as 1727, and as it was decided by the House of Lords, upon an appeal, it merits the more attention. The question there was, on a penalty given by a lease of one hundred pounds an acre, for digging up the soil, and yet the court ordered that the chancellor issue an injunction until the hear- ing, to stay the trespass, notwithstanding the party had his remedy for the penalty. In the case of Bolton v. Bull, which was in chancery, as late as 1796, (3 Ves. 140,) there was a bill for an injunction against infringing a patent right for a fire engine, and it was granted, and the validity of the patent was left, in the mean time, to be tried at law. It was there admitted to be the most ordinary jurisdiction of the Court of Chancery, not to alter the possession until the right was decided, and the party in enjoyment of his patent privilege was considered as in such 166 LIVINGSTON v. VAN INGEN [part i. possession. In a late case, before the present Lord Chancellor Eldon, (The Universities v. Richardson, 6 Ves. 707) it was held, that in the case of a patent right, if the party gets his patent and puts it in execu- tion, his possession, under color of that title, is good enough to enjoin a disturber from interfering, and to continue the injunction until it is proved at law that he had no title. In a still later case, (14 Ves. 130,) the court expressed itself in strong terms against the invasion of a patent right, and said, that unless the injunction was granted, any per- son might violate the patent, and the consequence would be, that the patentee would be harassed with litigation. I cite these later cases to show that the law has been settled, in England, for the last seventy years at least, and has been preserved in a steady, uniform course, under a succession of their ablest and wisest men. The principle is, that statute privileges, no less than common law rights, when in actual possession and exercise, will not be permitted to be disturbed, until the opponent has fairly tried them at law, and over- thrown their pretension. And is not this a most excellent principle, calculated to preserve peace, and order, and morals, in the community; and if it was not the law, yet deserving to be the law, and well worthy of our encouragement and sanction ? The federal courts in this country have thought so ; for under the patent law of congress, they have equally protected the right by injunction. The case of Morse v. Reid was an injunction bill filed in 1796, to restrain the defendant from reprinting Winterbotham's History, which, the complainant alleged, was an inva- sion of the copyright of his American Geography. The propriety of the injunction was not questioned; it issued in the first instance. The com- plainant recovered 1,500 dollars, and the injunction was made per- petual. So in the late case of Whitney v. Fort, which arose in Georgia, upon a violation of the complainant's patent for a machine for cleaning cotton, an injunction was granted, in the first instance, and was after- wards made perpetual, at the Circuit Court, at which Judge Johnson presided. As far, then, as authority goes, it is in favor of the injunction, and if we are satisfied, in this case, of the appellants' right, we cannot hesitate about the remedy. The act which the legislature passed at the last session, making it expressly the duty of the Chancellor to grant an injunction as to all other boats except the two then built, proves very clearly the sense of the legislature that this was a fit and proper remedy in the case. Those two boats were excepted out of the law, merely be- cause it was improper to interfere with a pending suit, and the statute did not impair the pre-existing remedy by injunction; it only made it more clear and peremptory thereafter; and there is no reason why the in- jutictif)ri slu)nld issue against one set of boats, and not against another. It would only be productive of litigation and mischief, to allow the rcspoiidonts to continue the use of their boats, if the right be against lhc!n. Their counsel admit that they must not only forfeit the boats, but must answer in damages for all the intermediate profits. If the legal CHAP. IV.] LIVINGSTON v. VAN INGEN 167 right be with the appellants, this is the proper court, and this is the proper time to declare it. This court, from its peculiar constitutional structure, unites with it the highest court of common law, and nothing would be more useless than to withhold an injunction until the chan- cellor had sent the question to be tried at law, when the judges before whom it is to be tried, are members of this court, and have already declared their opinion. The legal (juestion can never be tried by a jury. It is not a question of fact. The single point is the constitutionality of the statutes. That point never can be more fully and more ably argued than it has been before this court, and if we are of opinion that the acts are constitutional, they must be obeyed. We are bound to cause them to be obeyed. There is no escape from this duty. If we refuse the injunction, it ought to be for some substantial reason. We must not put it upon the mei'e hoc vola, sic juheo, sit pro ratione voluntas. There must be some solid principle, that will correspond with the character, as well as satisfy the conscience of this court. If the laws are valid, it would be of pernicious consequence not to arrest the further progress of their violation. It is impossible for any act to be committed which attracts more universal notice, and if wrong and illegal, none which has a more fatal influence upon the general habits of respect and reverence for the legislative authority. The boats cannot run but in the face of day, and in the presence, as it were, of the whole people, whose laws are set at defiance, nor without seducing thousands, by the con- tagion of example, into an approbation and support of the trespass. I am sensible that the case is calculated to excite sympathy. I feel it with others, and I sincerely wish that the respondents had brought the laws to a test, at less risk and expense; for every one who had eyes to read, or ears to hear the contents of our statute book, must have been astonished at the boldness and rashness of the experiment. But in pro- portion to the respectability and strength of the combination, should be the vigor of our purpose to maintain the law. If we were to suffer the plighted faith of this state to be broken, upon a mere pretext, we should become a reproach and a by-word throughout the union. It was a saying of Euripides, and often repeated by Caesar, that if right was ever to be violated, it was for the sake of power. We follow a purer and nobler system of morals, and one which teaches us that right is never to be violated. This principle ought to be kept steadfast in every man's breast; and above all, it ought to find an asylum in the sanctuary of justice. I am accordingly of opinion, that the order of the Court of Chancery be reversed, and that an injunction be awarded. 168 CROTON TURNPIKE COMPANY v. RYDER [part i. CROTON TURNPIKE COMPANY v. RYDER. In the Court of Chancery of New York, before Chancellor Kent, 1815. [1 Johnson's Chancery 611.] A bill to enjoin interference of the defendant with the franchise of the plaintiffs to maintain a toll road. The Chancellor. The plaintiffs have shown a clear and undisputed right, by statute, to the taking of toll at the gates, and for the use of the turnpike road mentioned in the pleadings. They were, likewise, at the commencement of the suit, in the actual possession and exercise of that exclusive right; and the question is, whether the establishment of the open and common road, designated on the map by the figures 1, 2, 3, be not a disturbance of that right, amounting to a private nuisance. There can be no question as to the right of the plaintiffs. It was given to them by the acts of the legislature of the 13th of March, 1807, and the 18th of March, 1808; and it is shown and admitted, that they conformed to the conditions upon which the grant was made. The road was duly laid out, and report duly made by commissioners appointed according to law, and the gates were then erected in pursuance of the governor's license. The road, as worked and constructed, was also established by the act of the 8th of April, 1811. The defendants admit that they combined together to purchase jointly of William Haight, the strip of land on which the road marked 1, 2, 3, complained of, was estab- lished and opened. They admit the consideration of 250 dollars was raised by contribution, and a deed in fee taken to all of them, except I'rederick Graham, on the 10th of December, 1811. They admit that they purchased the land to be laid out as a road for their benefit, and because it would be a public advantage. They admit that this new road has not been established as a public road ; and that the distance by that road from A. to D., on the map, is only 4 chains and 1 link shorter than the distance between the same points by the way of the toll-gate. They admit that the new road has been kept open for public use and travel, and maintained as such by private expense, by not impeding travellers from using it; and they admit that this road may, and does, enable persons to avoid passing through the gate and paying toll to the plaintiffs. After these admissions, it is in vain for the defendants to allege that the road was established without any views injurious to the rights of the plain- tiffs. The facts speak for themselves; and I think it is impossible for any person to cast his eye upon the map, which is made an exhibit in the cause, without being struck, at once, with the conviction, that the injury is direct, palpable, and inevitable, and that, if no such turnpike gate existed, no such new road would have been purchased, made, and kept ox)en. CHAP. IV.] VICKSBURG WATERWORKS CO. v. VICKSBURG 169 It is, then, a plain case of a material and mischievous disturbance of the plaintiffs in the enjoyment of the statute privilege, which was granted to them by the legislature for public purposes, and founded on a valuable consideration. The only question is as to the remedy, and this appears to me to be equally certain. It is settled that an injunction is the proper remedy to secure to a party the enjoyment of a statute privilege, of which he is in the actual possession, and when his legal title is not put in doubt. The English books are full of cases arising under this head of equity jurisdiction. (Bush V. Western, Prec. in Chan. 530. Whitchurch v. Hide, 2 Atk. 391.) But I need not enter into this discussion, for the point has been recently settled in this state, in the case of Livingston and Fulton v. Van Ingen and others, (9 Johns. Rep. 50Y,) and I shall rest upon the authority of that case, and upon the application of the principles on which it was decided. The equity jurisdiction in such a case is extremely benign and salutary. Without it, the party would be exposed to constant and ruinous litigation, as well as to have his right excessively impaired by frauds and evasion. If such a contrivance as this case presents, is to be tolerated, all our statute privileges of the like kind, on which millions have been ex- pended, would be rendered of little value, and the moneys have been laid out in vain. I shall, accordingly, decree, that the defendants be perpetually enjoined from opening or using, or permitting to be opened and used, as a road for public use or travel, the road designated on the map by the figures 1, 2, 3; and that the same be closed up so as to hinder persons travelling on the turnpike road from using it as an open road ; and that the defend- ants, except Frederick Graham, pay the costs of this suit; and that the bill, as to him be dismissed. In ViCKSBURo Waterworks Co. v. Vicksburg (1902), 185 U. S. 65, 81, Mr. Justice Shiras said: The bill prays for an injunction to restrain the defendant from assuming to abrogate and take away the franchises and contract rights of the complainant, and from attempting to coerce the company to sell its works to the defendant for an inadequate price, and that said act of the legislature of Mississippi, adopted on March 9, 1900, and said resolution and ordinance adopted and passed by said city on the 7th day of November, 1900, be declared to impair the obligations of said contract between said city and said Bullock & Company and their assigns, and to cast a cloud upon the title, franchises and rights of complainant, and said act, ordinance and resolution, and each of them, are alleged to be in contravention of the Constitution of the United States in this, that 170 VICKSBUEG WATERWORKS CO. v. VICKSBURG [part i. they impair the obligations of said contract between said city and sai of article 3 of our Constitution. The title in question is as follows: "An act to prevent by means of the writ of injunction at the suit of CHAP. IV.] E:^ PAETE ALLISON 22;; the State or any citizen thereof the habitual use, actual, contemplated or threatened, of any premises, place, building or part thereof, for the purpose of gaming or of keeping or exhibiting games prohibited by the laws of this State." This title in our opinion very clearly and fully ex- presses the one subject of the act, and is therefore sufficient in that respect to sustain the statute. It is also insisted on behalf of the relator that the Legislature has no power to confer upon the courts the authority to enjoin the commission of crime or the establishment or continuance of a public nuisance. The Legislature, when not restrained by the Constitution of the State or of that of the United States, has the power to make law and to provide reme- dies for its enforcement. We find no express provision in either of these instruments which prohibits the lawmaking from either extending or abridging equitable remedies. The main argument against the power the Legislature has attempted to exercise by the passage of the act in question is that it deprives the defendant in the action of the right of trial by jury, and therefore violates the provision of our Bill of Rights which declares that " the right of trial by jury shall remain inviolate." This may present a serious difficulty in those jurisdictions in which, as at common law, legal and equitable remedies were kept distinct and administered in separate courts. In courts of law the parties are entitled to have the issues of fact determined by a jury, which is not the case in a court of equity. Hence it might be that in such jurisdictions a statute which attempted to confer upon a court of equity the power to try a cause which was previously cognizable in a court of law would be held obnoxious to the objection that it deprived the parties of the right of trial by jury. But under our system, in which law and equity are blended and the right of trial by jury exists, whether the remedy be legal or equitable, the difficulty vanishes. Before the injunction could be made perpetual under the statute in question it is the right of the defendant to have the jury pass upon the facts. It is true that in case of a violation of the injunction there is in the contempt proceedings no trial by jury; but no such right exists at common law in proceedings for contempt. Hence that does not contravene the provision which declares that "the right of trial by jury shall remain inviolate." That provision merely protects the right as it existed at the time the Constitution went into effect. Nor do we think that the act in question infringes that provision of the Bill of Rights which declares that "no person for the same offense, shall be twice put in jeopardy of life or liberty." It is true that, if he com- mits the act which he is enjoined from committing and such act be a violation of the penal laws of the State, he may under this statute be punished for the contempt and also for the violation of the criminal law. But these are not "the same offense." In the former case he is punished for a violation of the orders of the court; and in the latter for an offense 'Against the peace and dignity of the State." One who 224 EX PAKTE ALLISON [part i. makes an assault in the presence of the court in such a manner as to readily find other agents to represent it in the criminal proceeding. Courts of equity, therefore, deal only with civil and property rights. They have no jurisdiction to give relief in criminal cases, and they will not therefore interfere by injunction with the course of criminal justice." Mr. Justice Gray, delivering the opinion in Re Sawyer, supra, said: "The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, the punishment, or the pardon of crimes or misdemeanors, or over the appointment and removal of public officers. To assume such a jurisdiction, or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offenses, or for the removal of public officers, is to invade the domain of the courts of common law, or of the executive and administrative department of the government." It is contended, however, that equity will intervene to restrain a crimi- nal prosecution under a void statute. Let it be conceded. But it will not try the validity of the statute, and will not interfere until the statute has been declared void in the proper legal tribunal. In Poyer v. Des Plaines, supra, the court said : "The questions arising in the prosecution sought to be enjoined can be determined in the tribunal in which they are pending, or in that to which they may be taken by appeal. The legality or illegality of the ordinance is purely a question of law, which the common law court is competent to decide. If the defendant is not guilty of violating this provision, as alleged, the determination of that fact is peculiarly within the province of that court. In either event, appellant had a full and complete defense at law." In the same case, it is further held : "If the municipal law be of doubtful validity, the com- plainant cannot, by his wilful and repeated violation of its provisions, each furnishing separate grounds for prosecution, and depending upon separate facts, create this ground for equitable interposition without first settling the validity of the ordinance in the courts of law. If he fears the prosecution of other suits, he can refrain from the repetition of his acts in violation of its provisions until the proper forum has deter- mined its validity." In West v. New York, 10 Paige, 539, Chancellor Walworth, in delivering the opinion of the court, says: "The question as to the validity of the corporation ordinances does not proi)erly belong to this court for decision, where the complainants, as in this case, have a perfect defense at law, if the ordinances are invalid, or if they do not render the complainants, or those in their employ, liable for the penalty. And it would be an usurpation of jurisdiction by this court if it should draw to itself the settlement of such questions, when their decision was iK)t necessary in th(i discharge of the legitimate duties of the court." In Phillii)s V. Stone; Mountain, supra, where it was sought to restrain the municipal ;nilli<>ril ifs of the town of Stone Mountain, Georgia, from prosecuting the i)laiiitiff for the violation of an ordinance rocpiiring retail CHAP. IV.] EX PAKTE ALLISON 225 liquor dealers to close their places of business during the continuance of divine services, and alleging the invalidity of the ordinance, the court said: "Injunctions or orders in the nature of injunction are not granted by courts of equity to restrain proceedings in criminal matters. . . . For this reason, whatever may be the infirmities of the penal ordinances of Stone Mountain, an injunction in the present case was properly denied. If unlawful convictions take place before a municipal court, reversal can be had in the superior court, as a court of law, by certiorari. (This is a plain and adequate remedy, and a court of equity need not and cannot interfere. Chancery takes no part in the administration of criminal law. It neither aids the criminal courts in the exercise of jurisdiction, nor restrains nor obstructs them." We are of the opinion that the plaintiff has a clear and adequate remedy at law, not only to have the question of his guilt or innocence determined, but also the validity of the statute upon which the informations are based. It is contended that property rights are here involved; and that in- junction will lie to restrain a criminal prosecution when necessary to protect such rights. In such cases equity intervenes, if at all, not in restraint of the criminal proceedings, but rather in aid of the civil jurisdiction of the court. It merely suspends the criminal pro- ceedings until the property rights can be determined. It does not assume jurisdiction of the criminal action. It only prevents the criminal process from interfering with the exercise of its jurisdiction in the civil proceeding under consideration. The only right of the plaintiff affected is the enjoyment of the privileges afforded by the licenses. The per- mission granted by these licenses is not a property right. A license is a mere permit to do something that without it would be unlawful. It is not a contract, nor does it convey any vested right. It is issued in the exercise of the police power of the State, and may be modified, revoked, or continued at its pleasure. Statutes under which licenses have been granted, may be repealed, and it is held that such repeal is not any vio- lation of the constitutional provision forbidding the enactment of laws impairing the obligations of contracts; nor does such repeal deprive the licensee of his property without due process of law. 17 Am. & Eng. Enc. Law, 2d ed. p. 262. For the reasons above stated, the trial court committed no error in holding that the temporary injunction was improperly issued and in sus- taining the demurrer and dismissing the action. The judgment is affirmed. Potter, Ch.J., and Beard, J., concur. 226 In re T.EAD AND HUGGONSON |_i'-^^''T u IN EE EEAD AND HUGGONSON In Chancery^ before Lord Chancellor Hardwicke, 1742. [2 Atl-ijns 469.] A motion against the Printer of the Champion, and the Printer of the *S'^. James's Evening Post; that the former, who is abeady in the Fleet, may be committed close prisoner ; and that the other, who is at large, may be committed to the Fleet, for publishing a libel against Mr. Hall and Mr. Garden, (executors of John Roach, Esq. late major of the gar- rison of Fo7-t St. George, in the East Indies) ; and for reflecting like- wise upon Governor Mackray, Governor Pitt, and others, taxing them with turning aifidavit men, &c. in the cause now depending in this court, between Mrs. Roach and the executors : And insisting that the publishing such a paper is a high contempt of this court, for which they ought to be committed. Lord Chancellor, Nothing is more incumbent upon courts of justice, th^n to preserve their proceedings from being misrepresented ; nor is there anything of more pernicious consequence, than to prejudice the minds of the public against persons concerned as parties in causes, before the cause is finally heard. It has always been my opinion, as well as the opinion of those who have sate here before me, that such a proceeding ought to be discoun- tenanced. But, to be sure, Mr. Solicitor General has put it upon the right foot- ing, that notwithstanding this should be a libel, yet, unless it is a con- tempt of the court, I have no cognizance of it: For whether it is a libel against the public or private persons, the only method is to proceed at law. The defendant's counsel have endeavoured two things: 1st, To show this paper does not contain defamatory matter. 2dly, If it does, yet there is no abuse upon the proceedings of this court, and therefore there is no room for me to interpose. Now, take the whole together, though the latter is artfully penned, there can remain no doubt, in every common reader at a coffee-bouse, but this is a defamatory libel. There are three different sorts of contempt. One kind of contempt is, scandalizing the court itself. There may be likewise a contempt of this court, in abusing parties who are conceriuHl in causes here. There may be also a contempt of this court, in prejudicing mankind, against persons, before the cause is heard. CHAP. iv.J In re READ AND HUGGONSON 227 There cannot be any thing of greater consequence, than to keep tlie streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters. The case of Rakes, the Printer of the Gloucester Journal, who pub- lished a libel, in one of the Journals, against the commissioners of charitable uses at Burford, calling his advertisement. A hue and cry after a Commission of Charitable Uses, was of the same kind as this, and the court in that case committed him. There are several other cases of this kind; one strong instance, where there was nothing reflecting upon the court, in the case of Captain Perry, who printed his brief before the cause came on; the offence did not consist in the printing, for any man may give a printed brief, as well as a written one, to counsel; but the contempt of this court, was prejudicing the world with regard to the merits of the cause before it was heard. Upon the whole, there is no doubt, but this is a contempt of the court.' If these printers had disclosed the name of the persons who brought this paper to them, there might have been something said in mitigation of their offence; but as they think proper to conceal it, I must order Mrs. Read to be committed to the Fleet, and Huggonson to be taken into close custody of the warden of the Fleet. ' Parts of the case, including a detailed discussion of the facts, have been omitted. In the case of Kitcat v. Sharp (1882) L. J. 52 Ch. Div. 134, the plaintiff, a clergyman, had purchased shares of stock from the defendant, a stock broker. He filed his bill against the defendant, alleging false representations, and asking relief by rescission, or in the alternative damages. The defendant wrote the plaintiff a letter containing comments reflecting on the plaintiff's character. The defendant threatened to publish this, the plaintiff seeks an injunction. Fry, J. "It appears to me that if the threat contained in the letter were carried into effect, it would be calculated to interfere with the fair trial of the action; it would be calculated to prejudice the plaintiff, and render it difficult for him to obtain justice if justice were on his side. That such a course of action is a contempt of court I cannot entertain the slightest doubt. So long ago as 1742 it was laid down by Lord Hardwicke. in a motion against the printers of The Champion and St. James's Evening Post, 2 Atk. p. 469 {Case 291), 'that nothing is more incumbent on courts of justice than to preserve their proceedings from being misrepresented, nor is there anything of more pernicious consequence than to prejudice the minds of the public against -persons, parties in causes, before the cause is finally heard.' Further down in the same case he said, 'There are three different sorts of contempt. One is scandalizing the court itself. There may be likewise contempt of court in abusing parties who are concerned in causes here. There may be also a contempt of this court in prejudicing mankind against persons before the cause is heard." "It appears to me that the threatened act of the defendant would tend in this case to the two latter species of contempt. It is both abusing a party 228 BEANDRETH v. LANCE [part i. BRANDRETH v. LANCE. Court of Chancery of New York, 1839. [8 Paige 24.] This case came before the court upon the demurrers of Lance and Hodges, two of the defendants, to the complainant's bill. The com- plainant was the proprietor and vender of a nostrum known by the name of "Brandreth's Vegetable Universal Pills." And, as the bill alleged, by advertising this medicine extensively in the public papers in the State of New York and elsewhere, and thus giving publicity to it and its general efficacy in the cure of diseases, the complainant had derived and was still deriving therefrom a comfortable support for him- self and his family. The complainant also alleged that for the pur- concerned and prejudicing mankind before the cause is heard. It appears to me, therefore, clearly that there would be contempt of court. "If so, there arises the question whether I ought to stop that course of ac- tion, or whether the only proper course would be, as is contended by his counsel, to imprison him for contempt when committed. It appears to me I have plainly jurisdiction to prevent the threatened conduct. Only observe what would be the effect if I had not the jurisdiction. It would be that the court, seeing that a fair trial is likely to be interfered with by a con- tempt of court, would be powerless to prevent such contempt, and powerless to prevent the fair trial from being interfered with. It might be so because there might be a decision to that effect binding on me; but there is nothing of the sort ; and in the next place nothing is more familiar than cases where the court does interfere to prevent a threatened contempt of court. The case to which ]\Ir. Beaumont has referred, with respect to wards of court, is an exercise of that jurisdiction against persons not even parties to the action or cause. Lastly, if authority were wanted for the exercise of the jurisdiction in this very way, there is the case that has been cited of Coleman V. The West Hartlepool Railway Company, in which the Vice-Chancellor, Sir William Page Wood, restrained publication. "Against that no single case has been brought, though Mr. Beaumont has argued the case with his usual ability and industry. I hold, therefore, that I have tlie jurisdiction and the obligation in the present case to restrain the publication." And see the case of Dailey v. Superior Court (189G) 112 Cal. 94. The plain- tiff here advertised, while the jury was being impanelled in the celebrated Durrant case, that he would produce ?t a certain theatre in San Francisco a [i!;ty entitled "The Crime of a Century." The play was founded on the evidence hii)ii;.'ht out at Durrant's preliminary hearing. Durrant applied for and re- ceived an injunction. From this the petitioner here, defendant below, brought a writ of Certiorari. The upper court annuled the order, on the ground that it interfered with lil)erty of speech. CHAP. IV.] BKANDRETH v. LANCE 229 pose of vending his pills he had been in the habit of keeping various ofSces, and of employing many agents and clerks; that among others he had employed the defendant. Lance, but had been obliged to dis- charge him for improper conduct; that in consequence of being thus discharged, Lance became very much enraged and vowed revenge, and threatened to destroy the complainant ; and that he thereupon opened a rival establishment for the purpose of vending medicine or pills in the city of New York. The complainant further charged in his bill, that a short time previous to the filing thereof ho had been spoken to by the defendant Trust, and informed that Lance had applied to him to write the complainant's life, and that he was inclined to do so, but would relinquish the undertaking for a bonus of $50; that the com- plainant spurned the offer, and bade Trust not to presume to repeat such a proposition, and that shortly thereafter, and previous to the filing of the bill, the complainant received a printed sheet, enclosed to him in a letter, containing the title-page and preface and two other pages of a work or pamphlet entitled "The Life, Exploits, Comi- cal Adventures and Amorous Intrigues of Benjamin Brandling, M.D. V.P.L.V.S., a distinguished pill vender, written by himself; inter- spersed with racy descriptions of scenes of life in London and New York"; which work, by the title-page, purported to be printed at New York, by D. M. Hodges, for the proprietors, and to be had of all the booksellers. The residue of this first sheet of the work, which was set out at length in the bill, contained a ludicrous preface in which the complainant was represented as avowing his object in raking up and publishing all the vices and follies of his youth, to be for the double purpose of amusing himself and as a warning to others to avoid them. And the table of contents represented him as being filius nullius, or rather as being filius -populi, the child of many fathers, and as having passed through the various and successive grades of sailor, confectioner, painter, brass founder, peddler, jeweler, bagman to a pill vender, money broker, author, poet, and dramatist; until he had risen to the rank of a wholesale manufacturer of that rare medicine, upon which the smiles of fortune had been so freely bestowed. The complainant further charged that the before-mentioned book, or pamphlet, was then actually printing by the defendant, Hodges, for Lance, and under the direction and superintendence of the defendant, Trust, who was the author of the work; that the same, so far as appeared by the printed sheet set out in the bill, was a false, malicious, and highly injurious libel upon the complainant, and was intended to libel him and to bring him into public disgrace and contempt; although in the title-page the person whose life it purported to be was called Benjamin Brandling instead of Bran- dreth, his real name; and that the defendants were printing the work, and causing it to be printed for the purpose and with the intent of publishing the same and causing it to be widely distributed through- out the country. He therefore prayed for a perpetual injunction re- 230 BKANDEEIH v. LANCE [part i. straining the defendants from printing or publishing such book or pamphlet, or the contents thereof, or any part thereof; and that they might be decreed to deliver up the manuscript of the work, and all and every copy thereof, or of any part of the same printed by them, or either of them, to be cancelled and destroyed; and for such further or other relief as he might be entitled to in the premises. To this bill the defendants, Lance and Hodges, put in a separate demurrer, both as to the discovery and relief sought. The CHA^X'ELLOR [Walworth]. It is very evident that this court cannot assume jurisdiction of the case presented by the complainant's bill, or of any other case of the like nature, without infringing upon the liberty of the press, and attempting to exercise a power of preventive justice which, as the legislature has decided, cannot safely be entrusted to any tribunal consistently with the principles of a free government. 2 R. S. 737, § 1, and Revisers' note. This bill presents the sim- ple case of an application to the court of chancery to restrain the publication of a pamphlet which purports to be a literary work, un- doubtedly a tale of fiction, on the ground that it is intended as a libel upon the complainant. The court of star chamber in England, once exercised the power of cutting off the ears, branding the foreheads, and slitting the noses of the libellers of important personages. Hudson's Star Chamber, 2 Collect. Jurid. 224. And as an incident to such a jurisdic- tion, that court was undoubtedly in the habit of restraining the pub- lication of such libels by injunction. Since that court was abolished, however, I believe there is but one case upon record in which any court, either in this country or in England, has attempted, by an injunction or order of the court, to prohibit or restrain the publication of a libel, as such, in anticipation. In the ease to which I allude, the notorious Scroggs, chief justice of the court of king's bench, and his associates, decided that they might be safely entrusted with the power of prohib- iting and suppressing such publications as they might deem to be libel- lous. They accordingly made an order of the court prohibiting any person from printing or publishing a periodical, entitled "The Weekly Packet of Advice from Kome, or the History of Popery." The House of Commons, however, considered this extraordinary exercise of power on the part of Scroggs as a proper subject of impeachment. 8 Howell's State Trials, 198. And I believe no judge or chancellor from that time to the present has attempted to follow that precedent. There is, indeed, in the rei)orted case of Du Post v. Beresford, 2 Camp. Rep. 511, which was an action of trespass against the defendant for destroying a libel- lf>us picture, a most extraordinary declaration of Lord EUenborough, ihat the Lord Chancellor, upon an application to him, would have ^Tanted an injunction against the exhibition of the libellous painting. It is said, however, in a note to Home's case, in the state trials, that this declaration of Lord EUenborough, in relalicMi to the power of the I.oi.l Chaiic(;llor to restrain the publication of a libel by injunction, ex- CHAP. IV.] BRANDRETII v. LANCE 231 cited great astonishment in the minds of all the practitioners in the courts of equity. 20 Howell's St. Tr. 799. It must unquestionably be considered as a hasty declaration, made without reflection during the progress of a trial at nisi prius; and as such it is not entitled to any weight whatever. The utmost extent to which the court of chancery has ever gone in restraining any publication by injunction, has been upon the principle of protecting the rights of property. Upon this principle alone Lord Eldon placed his decision, in the case of Gee v. Pritchard, 2 Swanst. Kep. 403, continuing the injunction which restrained the defendant from publishing copies of certain letters written to him by the complainant. But it may, perhaps, be doubted whether his lordship in that case did not, to some extent, endanger the freedom of the press by assuming jur- isdiction of the case as a matter of property merely, when in fact the object of the complainant's bill was not to prevent the publication of her letters on account of any supposed interest she had in them as literary property, but to restrain the publication of a private corre- spondence, as a matter of feeling only. His decision in that case has, however, as I see, received the unqualified approbation of the learned American commentator on equity jurisprudence. See 2 Story's Eq. 222, § 94S. In this case the complainant does not claim the exercise of the ex- traordinary jurisdiction of this court on the ground of any violation of the rights of literary property, or because a work is improperly at- tributed to him which will be likely to injure his reputation as an author, or even as a manufacturer of pills. For although his counsel insist that it must necessarily have the effect to injure the sale of his pills, he has not alleged in his bill that he even believes it will have any such effect. And in the absence of such an allegation, I am as a matter of opinion, inclined to the belief that with that class of per- sons who would be likely to buy and take his "universal pills," as a general remedy for any and every disease to which the human body is subject, the supposition that he was the author of the publication in question, and was also the extraordinary personage which this table of the contents of the work indicates, would be very likely to induce them to purchase and use his medicine the more readily. As the publication of the work, therefore, which is sought to be re- strained, cannot be considered as an invasion of the rights either of literary or medical property, although it is unquestionably intended as a gross libel upon the complainant personally, this court has no juris- diction or authority to interfere for his protection. And if the de- fendants i)ersist in their intention of giving this libellous production to the public, he must seek his remedy by a civil suit in a court of law; or by instituting a criminal prosecution, to the end that the libellers, upon conviction, may receive their appropriate punishment, in the peni- tentiary or otherwise. 232 BEANDRETII v. LANCE [part i. The demurrers must be allowed, and the complainant's bill dismissed, as to these defendants, with costs.' ^ "The jurisdiction of a Court of Chancery does not extend to cases of lihel or slander, or of false representations as to the character or quality of the plaintiff's property, or as to his title thereto, which involve no breach of trust or of contract. Huggonson's case, 2 Atk. 469, 488 ; Gee p. Pritchard, 2 Swanst. 402, 413; Seeley v. Fisher, 11 Sim. 581, 583; Fleming v. Newton, 1 H. L. Cas. 363, 371, 376; Emperor of Austria v. Day, 3 De G., F. & J. 217, 238-241; Mulkern v. Ward, L. R. 13 Eq. 619. The opinions of Vice-Chan- cellor !Malins in Springhead Spinning Co. v. Riley, L. R. 6 Eq. 551. In Dixon V. Holden, L. R. 7 Eq. 488, and in Rollins v. Hinks, L. R. 13 Eq. 355, appear to us to be so inconsistent with these authorities and with well-settled prin- ciples, that it would be superfluous to consider whether, upon the facts be- fore him, his decisions can be supported. "The jurisdiction to restrain the use of a name or a trade-mark, or the pub- lication of letters, rests upon the ground of the phiintifF's property in his name, trade-mark or letters, and of the defendant's unlawful use thereof. Routh V. Webster, 10 Beav. 561 ; Leatlier Cloth Co. v. American Leather Cloth Co., 4 De G., J. & S. 137, and 11 H. L. Cas. 523; Maxwell v. Hogg, L. R. 2 Ch. 307, 310, 313; Gee v. Pritchard, 2 Swanst. 402. "The present bill alleges no trust or contract between the parties, and no use by the defendants of the plaintiff's name ; but only that the defendanta made false and fraudulent representations, oral and written, that the articles manufactured by the plaintiff were infringements of letters patent of the de- fendant corporation, and that the plaintiff had been sued by the defendant corporation therefor; and that the defendants further threatened divers per- sons with suits for selling the plaintiff's goods, upon the false and fraudu- lent pretence that they infringed upon the patent of the defendant corporation. If the plaintiff has any remedy, it is by action at law. Barley v. Walford, n Q. B. 197; Wren v. Weild, L. R. 4 Q. B. 730." Per Gray, C. J., in Boston Diatite Co. v. Florence Mfg. Co. (1873) 114 Mass. 69. The American courts generally are in accord with Justice Gray's statement. The English law, while formerly as stated above, has since been changed by statute. Common Law Procedure Act (1854) §§ 79, 82; Supreme Court of Judicature Act (1873) § 25 (8). For tlie scope of the power of the Court under these provisions, see eases collected by Professor Lewis in his volume of cases, "Restraint of Infringement of Incorporal Rights," p. 382 et seq. CHAP. IV.] JOHN HORSMONGER'S CASE 233 Section 2. Maxims of Equity.' A. Equity A els in Perstonam.. JOHN HORSMOxVGER'S CASE. In Ciianceuy, 1390-1403. [Select Cases in Chancery, 10 Selden Society, No. 123.] To the Chancellor of England, Humbly beseecheth John Horsmonger that whereas one John Pecham enfeoffed Reginald Pympe and Walter Judde, amongst others, in certain lands and tenements in the County of Kent, upon certain conditions, ' "It must not be supposed that all these maxims are equally important, or that all have been equally fruitful in the development of doctrines and rules; but it is not an fxaj^ncvation to say that he who has grasped tliem all with a clear com|ii(!unsinii df tlicir lull moaning and effect has ah'eady obtained an insiglrtr into whatever is essential and distinctive in the system of equity jurisprudence, and has found tlie explanation of its peculiar doctrines and rules." — Pomeroy, 1 Equity Jurisprndence, § 336. In closing a not overfriendly article on "The Use of Maxims in Jurispru- dence," Professor Jeremiah Smith uses the following language : "What then is the conclusion of the whole matter? Shall we say that Mr. Broom's book should be burned by the common hangman ; and that the citation of maxims in courts of justice should be forbidden by a legislative enactment framed upon the model of the statute passed in the early days of Kentucky, prohibit- ing the citation of English decisions. Far from it. On the contrary, Mr. Broom's excellent work should be in the library of every practitioner; and all lawyers should familiarize themselves with the leading maxims, which have the great merit of being -'easily learned and not easily forgotten." But it should always be remembered that these familiar phrases are not all of equal value ; that some ought to be amended, and others discarded altogether. Above all it sliould be remembered that these maxims ,even the best of them) are ^mlv_jnaxii)is; flint Ihey ;iro""ii(it meant to take the place of a digest;" that thev^nrc iicitlici- (Iclinitions imi- treatises; that while they are "a convenient currency," yet "tlioy rc(|iiii(' tlic test from time to time of careful analysis:" and that, in many in^taiicc^, they are merely guide-posts pointing to the right road, hut not the road itself." — 9 Harvard Law h'rvicir 13, 26. "A maxim is a pro])osition to be of all men confessed and granted without proofe, argument, or discourse." Co. Lift. 167 a. In speaking of the maxim of the common law — volenti non fit injuria — Lord Esher , M. R. said in Yarmouth v. France (1887) L. R. 10 Q. R. D. 647, 653: "I need hardlv repeat that I detest the attempt to fetter t lie_Laiii_by i maxims. They are ajmost invariably misleading: they are for the most part ^o large and general in their language that they always include somethingU whicli really is not intended to be included in them." ' 234 JOHN IIORSMONGER'S CASE [part i. amongst which it was contained that the wish of the said John Pecham was that when the said lands were sold he who should be the nearest of blood to the said John Pecham, to whom the heritage of the lands and tenements should descend, should have £40 to relieve his estate; which lands and tenements have now been sold by the said feoffees for 500 marks, which sum the said Reginald has in his keeping; And although the said suppliant, as kinsman and heir to the said John Pecham, that is to say, son of Thomas Horsmonger, son of Thomas Horsmonger, son of Agnes, late wife of GeoflErey Horsmonger and sister to Thomas Pecham, father of the said John Pecham, hath oftentimes requested the said Reginald to pay and deliver the said £40 to him, according to the wish of the said John Pecham; nevertheless he will not pay him a penny of it, to the great damage of the said suppliant : And so it is, most reverend [Lord], that the said suppliant cannot have any remedy in this behalf by the law of Holy Church, nor by the com- mon law of the land : May it please your most gracious Lordship, in honour of God and on account of righteousness, to grant writs to cause the said Walter and Reginald to come before you in the King's Chan- cery, which is the Court of Conscience,' there to answer thereto as reason and conscience demand, otherwise the said suppliant is and will be "without remedy, which God forfend. T,, , r .-, .. (John Richelot of Kingston. Pledges for the prosecution { „,.,,. tt n ,. r> I VVilliam Hall of burrey. ' "The word 'conscience' is used frequently. * * * Such expressions as 'conscience and law', 'the law of conscience', 'law and conscience', 'law and right', 'law, right, and good conscience', 'right and reason', 'reason and good faith', are common enough.' Select Cases in Chancery, 10 Sclden So- ciety * * * "In the use of the writs of suhpena the chancery is not a court of record, for it is only to examine the conscience. We here are bound to the law and cannot go beyond. It belongs to them to examine the conscience. For when the deed is good and always has been so, their examination will not make it bad, nor will their examination make it good and legal in our law. And since the defendants cannot have any remedy by our law, they shall sue then to be restored to their obligation; and the effect of their power and decree is to restore the party to his obligation, or to compel the plaintiff to make an acquittance or release. But to execute this the Chancery can do nothing but order him to prison, there to remain until ho will obey. And if the party will lie in prison rather than give up the obligation, the otlier is without remedy, and so the Chancellor has no power to nullify the obligation." Per Pricot, C. J. in J. R. V. M. P. (14.59) Y. B. 37 //. 17 f. 13, pi. 3, Common Bench, as printed by Mr Ames, Cases on Equity Jurisdiction 1. "If after all this a man will still suppose there is a secret trust, security, or agreement V)etween the parties to repurchase this rent, whicli no bill cliarges, no proof can make out, and the defendant denies upon oath, then it must be sucli a trust, security, or agreement as is only between a man and his confessor. With such a conscience as is only naturalis et interna, this court CHAP. IV.] TOLLER v. CARTERET 235 Greaves v. Tofield (1880), /.. R. U Ch. Div. 563, 577. Bramwell, L. J.: — 1 also think that this appeal must be allowed. I think so with great doubt and the greatest reluctance, but it seems to me that the authorities arc conclusive. I understand them to have established this beyond dispute, that if a man having an estate agrees to sell it, or under- takes to grant an interest in it, or a charge upon it, for a valuable con- sideration, and afterwards, disregarding the bargain he has made, con- veys to a third iierson, or so deals with it by bargain with a third person, that he is incompetent to convey the estate or grant the interest to the first which he had agreed to do, and the third person has all along had notice of the first contract, the conscience of the second purchaser is affected, and he cannot retain the estate without giving the i)erson who entered into the first contract that right in it for which he had stipu- lated, and if necessary he must join in a conveyance of the estate if the first person was a purchaser, or he must join in executing a charge if it was a charge that was to be executed, or a lease if it was a lease to be granted. I understand the authorities further to establish this, that that prin- ciple is not affected by these Acts of Parliament which require registra- tion in order to give or to prevent a priority, but that the conscience of the second purchaser, as I have called him, is equally affected, and that the intention of the Legislature in such acts as those I have referred to was to afford a protection to persons whose consciences were not affected, g^ and not to give the second purchaser whose conscience was affected an opportunity of joining in the commission of that which was a breach of contract and a wrong to the first person who made the bargain. TOLLER V. CARTERET. In Chancery, before Lord Keeper Cow^per, 1705. [2 Vernon 493.] Sir Philip Carteret, owner of the island of Sarhe, made a mortgage thereof to one Willowe the plaintiff's intestate, for five hundred years for 5001. The bill was that the defendant might redeem, or be foreclosed. has nothing to do; the conscience by Avhich I am to prooeed is merely cirilis et politica, and tied to certain measures; and it is infinitely better for the public that a trust, security, or agreement, which is wholly secret, should mis- carry, than that men should lose their estates by the mere fancy and imagina- tion of a Chancellor. The rule of nuUus recedat a canceUaria ftlne rcmedis, ^ was never meant of English proceeding,s, but only of original writs, when the Tj case would bear one'; and so the Chancellor in 5 Hen. 7 understood it ; for otherwise, says he, no man need to be confessed." — Fer Lord Nottingham in Cook V. Fountain (1676) 3 Swanst. 585, 600. 236 PENN V. LOED BALTIMORE [part i. The defendant pleaded to the jurisdiction of the Court, that the island of Sarke was part of the Dutchy of Normandy, and had laws of their own, and were under the jurisdiction of the Courts of Guernsey, and not within the jurisdiction of the Court of Chancery; and cited 4 Inst. 284. Andersons 2 Rep. 115. Kelloway 202. Lord Keeper over-ruled the plea, because the grant was of the whole island: and secondly, that the Court of Chancery had also a jurisdiction, the defendant being served with the process here, & aquitas agit in per- sonam, which is another answer to the objection.* PENN V. LORD BALTIMORE. In Chancery^ before Lord Chancellor Hardwicke, 1750. \lVesey Senior, 444.] The bill was founded on articles, entered into between the plaintiffs and defendant 10 May, 1732, which articles recited several matters as introductory to the stipulation between the parties, and particularly letters patent granted 20 June, 2 C. 1, by which the district, property, and government of Maryland under certain restrictions is granted to defendant's ancestor, his heirs and assigns: farther reciting charters or letters patent in KTSl, by which the province of Pennsylvania is granted to Mr. William Penn and his heirs; and stating a title to the plaintiffs derived from James Dul-ce of York, to the three lower coun- ties by two feoffments, both bearing date 24 August, 1682. The articles recite, that several controversies had been between the parties concern- ing the boundaries and limits of these two provinces and three lower counties, and make a particular provision for settling them by drawing part of a circle about the town of Newcastle, and a line to ascertain the boundaries between Maryland and the three lower counties, and a provision in whatever manner that circle and line should run and be drawn; and that commissioners should do it in a certain limited time, the final time for which was on or before 25 December, 1733. There was beside a provision in the articles, that if there should be a want of a Quorum of commissioners meeting at any time, the party by de- fault of whose commissioners, the articles could not be carried into execution, should forfeit the penalty of £5,000 to the other party: and a provision for making conveyances of the several parts from one to * For other cases stating this well established rule, and not noted in the cases printed here, see Earl of Athol v. Earl of Derby (1682-83) 1 Ch. Ca. 220; Earl of Derby v. Duke of Athol (1748-49) 1 Ves. 8r. 202; Kildare v. Eustace (1686) 1 Vcrn. 405, 419, 423, 428, 437, s. c. 1 Eq. Ahr. 133; Baylcy V. Edwards (1792) 3 Hwanst. 703, 710; Lord Cranstown v. Johnston (1796) 3 Ves. 170, 182; Gardner v. Ogden (1860) 22 N. Y. 327, Hart v. Sansom (1884) 110 TJ. H. 151; Arndt v. Grifjfis (1890) 134 U. S. 316; Allen v. Iturliaiuin. (1892) 97 Aln. 399; llnydcn v. Yale (1893) 45 La. Ann. 362; State V. Zachrilz (1901) 106 A/o. 307. CHAP. IV.] PENN V. LORD BALTIMORE 237 the other in these boundaries, and for enjoyment of the tenants and land- holders. The bill was for a specific performance and execution of the arti- cles; what else was in the cause came by way of argument to support, or objection to impeach, this relief prayed. When the cause came on before, it was ordered to stand over, that the Attorney-General should be made a party; who now left it to tht court to make a decree, so as not to prejudice the right of the crown. The first objection for defendant was, that this court has not juris- diction nor ought to take cognizance of it; for that the jurisdiction is in the King and council.' Lord Chancellor. I directed this cause to stand over for judg- ment, not so much from any doubt of what was the justice of the case, as by reason of the nature of it, the great consequence and impor- tance, and the great labor and ability of the argument on both sides; it being for the determination of the right and boundaries of two great provincial governments and three counties; of a nature worthy the judicature of a Roman senate rather than of a single judge: and my consolation is, that if I should err in my judgment, there is a judica- ture equal in dignity to a Roman senate that will correct it. It is unnecessary to state the case on all the particular circumstances of evidence; which will fall in more naturally, and very intelligibly, under the particular points arising in the cause. The relief prayed must be admitted to be the common and ordinary equity dispensed by this court; the specific performance of agreements being one of the great heads of this court, and the most useful one, and better than damages at law, so far as relates to the thing in specie; and more useful in a case of this nature than in most others; because no damages in an action of covenant could be at all adequate to what is intended by the parties, and to the utility to arise from this agree- ment, viz., the settling and fixing these boundaries in peace, to prevent the disorder and mischief, which in remote countries, distant from the seat of government, are most likely to happen, and most mischievous. Therefore the remedy prayed by a specific performance is more neces- sary here than in other cases : provided it is proper in other respects ; and the relief sought must prevail, unless sufficient objections are shown by defendant ; who has made many and various for that purpose. First, the point of jurisdiction ought in order to be considered: and though it comes late, I am not unwilling to consider it. To be sure a plea to the jurisdiction must be offered in the first instance, and put in primo die; and answering submits to the jurisdiction: much more * A part of the opinion given relates chiefly to this objection. It will be of interest to note that the line here drawn was the famous Mason and Dixon's line which was, for many years, not only the boundary between Maryland and Pennsylvania, but also the dividing line between tb» free and slave states. 238 PENN V. LORD BALTIMORE [part i. when there is a proceeding to hearing on the merits, which would be conclusive at common law : yet a court of equity, which can exercise a more liberal discretion than common-law courts, if a plain defect of jurisdiction appears at the hearing, will no more make a decree, than where a plain want of equity appears. It is certain, that the original jurisdiction in cases of this kind relating to boundaries between prov- inces, the dominion, and proprietary government, is in the King and council; and it is rightly compared to the cases of the ancient Com- motes and Lordships Marches in Wales; in which if a dispute is be- tween private parties it must be tried in the Commotes or Lordships; but in those disputes, where neither had jurisdiction over the other it must be tried by the King and council; and the King is to judge, though he might be a party; this question often arising between the crown and one Lord-Proprietor of a province in America; so in the case of the Marches it must be determined in the King's court, who is never considered as partial in these cases; it being the judgment of his judges in B. R. and Chancery. So where before the King and council, the King is to judge, and is no more to be presumed partial in one case than the other. This court therefore has no original juris- diction on the direct question of the original right of the boundaries; and this bill does not stand in need of that. It is founded on articles executed in England under seal for mutual consideration; which gives jurisdiction to the King's courts both in law and equity, whatever be the subject matter. An action of covenant could be brought in B. R. or C, B. if either side committed a breach : so might there be for the £5,000 penalty without going to the council. There are several cases, wherein collaterally, and by reason of the contract of the parties, matter out of the jurisdiction of the court originally will be brought within it. Suppose an order by the King and council in a cause, wherein the- King and council had original jurisdiction; and the parties enter into an agreement under hand and seal for performance thereof : A bill must be in this court for a specific performance; and perhaps it will ap- ]pear, this is almost literally that case. The reason is, because none but a court of equity can decree that. The King in council is the proper judge of the original right; and if the agreement was fairly entered into and signed, the King in council might look on that, and allow it as evidence of the original right: but if that agreement is dis- j)uted, it is impossible for the King in council to decree it as an agree- ment. That court cannot decree in personam in England unless in certain criminal matters; being restrained therefrom by Stat. 16 Car., and therefore the Lords of the council have remitted this matter very properly to be determined in another place on the foot of the contract. The con.science of the party was bound by this agreement; and being within the jurisdiction of this court, 4 Inst. 213," which acts in personam, ' "If thf rloffnd.'mi (hvoll mil of tbo county palatine, if any of the county palatine have cause to conij)lain a<,Minst them for matter of equity for lands CHAP. IV.] PENN V. LORD BALTIMORE 230 the court may properly decree it as an agreement, if a foundation for it. To go a step farther; as this court collaterally and in consequence of the agreement judges concerning matters not originally in its jurisdic- tion, it would decree a performance of articles of agreement to per- form a sentence in the Ecclesiastical court just as a court of law would maintain an action for damages in breach of covenant.' The next head of objection is taken from the general nature and cir- cumstances of the agreement. First it is true, the court never decrees specifically without a considera- tion : but this is not without consideration; for though nothing valuable is given on the face of the articles as a consideration, the settling bounda- ries, and peace and quiet, is a mutual consideration on each side; and in all cases make a consideration to support a suit in this court for perform- ance of the agi'eement for settling the boundaries. The objection of tb.e time for performance being lapsed may be answer- ed; for it is the business of this court to relieve against lapse of time in performance of an agreement ; and especially where the non-performance has not arisen by default of the party seeking to have a specific perform- ance ; as it plainly does not here. Next, these articles are not like submission to arbitration. In those cases generally the time is conditional, so as determination be made by such a day; here the line and circle are agreed on by distinct, independ- ent, covenants, and that they shall form the boundaries of these tracts of land; this therefore is a particular, certain, specific contract of the par- ties, that these shall be the boundaries; nothing left to the judgment of the commissioners, who are merely ministerial to run the line, &c. accord- ing to the agreement, and set the marks. Therefore it is not like an award, but is an agreement, which this court will see pursued. As to any imposition or surprise, the evidence is clearly contrary there- to. It would be unnecessary to enter into the particulars of that evi- or goods within the county palatine, the plaintiff my complain in the chan- cery of England, because he hath no means to bring them to answer, and the court of equity can bind but the person, for otherwise the subject should have just cause of suit^ and should not have remedy; and when particular couits fail of justice, the general courts shall give remedy, ne curiae regis deficcrent in justitia exhibenda." 4 Inst. 213. ' "Where the necessary parties are before a court of equity, it is immaterial that the res of the controversy, whether it be real or personal property, is beyond the territorial jurisdiction of the tribunal. It has the power to com- pel the defendant to do all things necessary, according to the lex loci rei slice, which he could do voluntarily, to give full effect to the decree against him. "Without regard to the situation of the subject-matter, such courts consider the equities between the parties, and decree in 'personam according to those equities, and enforce obedience to their decrees by process in personam. 2 Story, Eq., sect. 899; Miller v. Sherry, 2 Wall. 249; Penn v. Lord Baltimore, 1 Ves. 444; Mitchell v. Bunch, 2 Paige (N. Y.), GOG." Per Mr. Justice Swain, Phelps v. McDonald (1878), 99 U. S. 298, 308. 240 PENN V. LOKD BALTIMORE [part i. denee ; but it appears, the agreement was originally proposed by defendant himself: he himself produced the map or plan afterwards annexed to the articles: he himse'lf reduced the heads of it into writing, and was very well assisted in making it : and farther that there was a great length of time taken for consideration and reducing it to form. But there is something greatly supporting this evidence, viz. the defect of evidence on the part of the defendant, which amounts to stronger negative evidence, than if it was by witnesses; for it was in his own power to have shewn it if otherwise. Then am I to presume, he was imposed on, in a plan too sent to himself by his own agents: as to the plan itself, it was in his own power ; with regard to the original of these minutes of the agreement wrote by himself, though ordered by the court to be produced, they are not produced; which negative evidence supports the evidence of the fair- ness of carrying on this agreement on the part of the plaintiffs. As to the court's not enforcing the execution of their judgment, if they could not at all, I agree, it would be in vain to make a decree; and that the court cannot enforce their own decree in rem, in the present case : but that is not an objection against making a decree in the cause; for the strict primary decree in this court as a court of equity is in personam, long before it was settled, whether this court could issue to put into pos- session in a suit of lauds in England; which was first begun and settled in the time of James I. but ever since done by injunction or writ of assis- tance to the sheriif: but the court cannot to this day as to lands in Ireland or the plantations. In Lord King's time the case of Richard- son V. Ilnmilton, Attorney-General of Pennsylvania, which was a suit of land and a house in the town of Philadelphia, the court made a decree, though it could not be inforced in rem. In the case of Lord Anglesey of land lying in Ireland, I decreed for distinguishing and settling the parts of the estate, though impossible to inforee that decree in rem, but the party being in England, I could enforce it by process of contempt in per- sonam and sequestration, which is the proper jurisdiction of the court. And indeed in the present case, if the parties want more to be done, they must resort to another jurisdiction ; and it looks by the order in 1735, as if that was in view; liberty being thevel\y given to resort to that board. I am of opinion therefore to decree a specific performance of this agree- ment witlunit prejudice to any right, &c. of the crown.^ '"Wliilst Coin-ts of Equity hiive never claiiiiod to act directly upon land situated at)road, they liave purported to act upon the conscience of persons livinf,' here. In Lord Craiostoum v. Johnston (1 Cowp. 161, 180), Sir R. P. Allien, Master of the Rolls, said: 'Archer v. Preston, Lord Arglass v. Mus- rhiography, Article, Henley.) A further (luolnt imi finm (he same source will scarcely be out of place: "In his youth lie was a luud drinker, and when suffering in later life from a .severe fit of gout was overheard in the House of Lords muttering to himself, Mf I had known that these legs were one day to carry a chancellor I'd have taken better care of them when I was a lad.'" (Memoirs, p. 1.3.) °The statement of facts is abridged and the arguments of counsel omitted. CHAP. IV.] WILLIE V. LUGG 2G7 for the benefit of the plaintiff, who had the inheritance. The question is, whether she can come into this court for such an equity. Every mortgagee, when the mortgage is forfeited, has acquired an absolute legal estate. Upon what terms can this court proceed to a re- demption? By giving the mortgagee the value of his money, its fruit, and his costs, and upon those terms only: for it is obvious injustice to help to the restitution of the pledge, without a full restitution of what it is first pledged for. If a person makes two different mortgages of two different estates, the equity reserved is distinct in each, and the con- tracts are separate: yet if the mortgagor would redeem one, he cannot; because if you come for equity you must do equity;' and the general ' "It will be remembered that there were numberless cases which were al- lowed by the Praetors as sufficient, by way of exception or plea, to avoid a demand which would not have availed to give to a man an action, legal or «quitable, civilis vel utilis, as plaintifi'. An illustration taken from the rule as adopted by our ecclesiastical Courts^ may be referred to. In suits for divorce, recrimination is allowed in many cases where the circumstances would not of themselves afford grounds for an application to the court for a divorce, at the instance of the party who urges them. This principle, trans- mitted from the earliest times, is acted upon in the Court of Chancery at the present day. But the early Chancellors carried the principle farther, and held, that he' who applied to the court of equity, should himself do equity; and this is still a governing principle. Here one of the distinctive features of the proceedings in the Court of Chancery may be discerned. The nature of the pleadings and of the judgment at law, precluded the possibility of in- troducing cross demands in one action. "However, in the reign of Elizabeth and her immediate successors, the prin- ciple last alluded to, was carried to an extent far beyond its present limits. Even moral duties were enforced on the part of the plaintiff as a condition precedent to his obtaining relief. " [Mr. Phillips, as counsel for the plaintiflf, having moved before Sir C. Hatton, L. C, to set aside a decree of the late Lord Keeper Bromley, asserting, as one of his grounds, that it was without precedent to make an order against the plaintiflf; many precedents of such decrees in the reigns of Hen. VIII. and Edw. VI. having been produced, Mr. Phillips was for such his assertion committed to the Fleet. The following is an abstract of the order, which is curious in many respects: "And because the said Mr. Phillips could not excuse himself of rashness and oversight in making the aforesaid in- formation (though he protested he never meant by the same to impeach the honorable proceedings of this court, but was deceived therein by the untrue information of the plaintiff, and craved pardon). Therefore, and because the motion tended to the open accusation of the late Lord Chancellor and this honorable court, that they had not proceeded seriously, and according to right and equity in this cause, which might not for the honor of this court escape altogether unpunished: Ft is ordered, that ]\Ir. Phillips be committed to the prison of the Fleet for his rash motion only, and not for any other fault or respect." Reg. Lib. 1587, fol. 626, Brocas v. Savage Knight, and the Lady Eleanor his Wife. Mr. Phillips, as the subsequent books show, did not suffer in his business from this act of oppression. — n. (b)]. 268 WILLIE V. LUGG [part i. estate being liable to both mortgages, this court will not be an instru- ment to take illegally from a mortgagee that by which he will be de- frauded of a part of his debt. I cannot see any difference between that case and the case at present under consideration ; for the principle upon which the court proceeds subsists as long as the equity of redemption remains united. If you come to redeem separately, you come for equity without doing equity; paying a debt, in lieu of which the mortgagee can hold both your estates until this court interposes. There seems also a manifest distinction between this case and the case of a purchase subject to a mortgage; for there the purchaser acquires a right to redeem that particular mortgagee, and when he comes to re- deem, he offers to equity to pay all that his estate is a debtor for.* Bill dismissed without costs. "On this principle also decrees in favor of the defendant in the plaintiff's own suit, were frequently made, at least from the time of Henry VIII., where the defendant established a case against the plaintiff, in relation to the subject-matter of the suit. Thus the lands in dispute were sometimes decreed to the defendant, or it was decreed that the defendant should hold and en- joy, and that the plaintiff should deliver to him the deeds; and sometimes the plaintiff was enjoined by the decree from further troubling the defen- dant as to the subject of the suit: and even when the plaintiff had made out a clear case for relief, and obtained a decree, it was sometimes suspended in order to force him to do moral equity by complying with an offer of the defendant, which the Lord Keeper considered reasonable." — 1 Spence Jurisdic- tion of the Court of Chancery 422. ^ The rule, however, laid down in the old cases, Purefoy v. Purcfoy, 1 Yern. 26. Shuttleworth v. Laywick, ib. 245. Margrave v. Le Hooke, 2 Vern. 207. Pope v. Onslow, ib. 286. (the authority of which, however, was doubted by Lord Hardivicke in ex parte King, 1 Atk. 300.) Ex parte Carter, Amb. 733. Roe v. Soley, Bl. Rep. 726. that a mortgagor of two distinct estates, upon distinct transactions, to the same mortgagee, cannot redeem one with- out ix'deeming the other, seems, by modern decisions, to have been extended to a purchaser of the equity of redemption of one of the mortgaged estates, without notice of the other mortgage. Cator v. Charlton, cit. 2 Yes. jun. 377. Collet V. Munden cit. ib. Ireson v. Denn, 2 Cox, 425, Et vide Jones v. Smith, 2 Yea. jun. 372. — Keporter's note. CHAP. IV.] HOWARD V. MOFFATT 269 IRESON V. DENN. In Chancery, before Sir Richard Pepper Arden, M. R., 1796.* [2 Cox, Chancery 425.] Bill by the purchaser of the equity of redemption against the mort- gajree to redeem. Defendant, by his answer, stated a subsequent mortgage made to him by the same mortgagor of distinct premises, and for a distinct debt; and insisted that the plaintiff had no right to redeem the first mortgage with- out redeeming the second. And his Honour said he did not know why such a rule was ever laid down, but that it had been decided by many cases, that a mortgagee of two distinct estates upon distinct transactions from the same mortgagor was entitled to hold both, even against the purchaser of the equity of redemption of one of the mortgaged estates, without notice of the other mortgage, until payment of the whole money due on both mortgages. And his Honour thought the persons interested in the equity of re- demption of the second mortgage were necessary parties to this suit ; and directed the cause to stand over to make these parties accordingly. — Reg. Lib. A. 1796, fol. 399. HOWARD V. MOFFATT. In the Court of Chancery of New York, before Chancellor Kent, 1816. [2 Johnson's Chancery 206.] The bill stated that the father of the plaintiff's wife died intestate, leaving five children, and a large real and personal estate; that part of the real estate, by the consent of the plaintiff, and the proceeds of what ^ While the friendship of the younger Pitt accounted for Arden's various pro- motions, he was a sound lawyer and judge as well as ^^it and man of the world. Indeed, it is said that Arden's "decisions show him to have been a better equity judge than Thurlow, much as Thurlow would have been surprised at being considered inferior to 'little Peppy,' the man he most contemned." (Dictionary Biography, Article, Arden.) There is, however, ample justification for Arden's reputation: Chief Justice Best pronounced him "one of the safest guides in Westminster Hall." Newton V. Cowie (1827) 4 Bing. 234, 242; and Lord Ellenborough spoke of him as one "who, to a very sound judgment, joined a very accurate knowledge of the law ot real property." Goodtille v. White (1812) 15 East 174, 198. 270 HOWARD v. MOFFATT [part i. had been sold, are in the hands of the defendant, who refused to account, &c. The bill prayed that the defendant might account, and pay over the money to the plaintiff. The defendant, (who is the brother of the plaintiff's wife,) in his answer, admitted the death of the ancestor, and the estate, &c., and stated the personal estate had been duly distributed; that most of the real estate had been sold ; that he had in his hands moneys belonging to the wife of the plaintiff, amounting to 1,290 dollars and 90 cents; and that she had frequently requested him not to pay it over to her husband. The master's report stated, that there were 1,923 dollars and 77 cents due from the defendant; that it was proved before him, that the plaintiff was, by profession, a mariner, and poor; and that the defendant was a person of property, and a prudent man ; that the wife of the plaintiff was examined, by consent, and stated, that she had always lived har- moniously with her husband, who was captured, some years ago, by a French privateer, and remained in Europe for five years, and was absent from New-Yorh seven years: that when he went abroad he left money sufficient to maintain her during the time he expected to be absent; but the sum, and the credit he had given her, were soon exhausted, and she was obliged to sell the plaintiff's furniture for her maintenance; that before, and since the period of his absence, she had been exclusively maintained by him; and during his absence he had corresponded with her by every opportunity. That, as the plaintiff was now out of business, and might prove unfortunate, she wished the defendant to keep her money, as it would be safer with him ; and that she was, at present, main- tained by the plaintiff. The cause was now brought on for a final hearing. The Chancellor [Kent]. The general rule is, that where the aid of the Court is requisite to enable the husband to take possession of the wife's property, he must do what is equitable, by making a reasonable provision out of it for her maintenance and that of her children, and without that, the aid of the Court will not be afforded him. The prac- tice is, for the husband, on a reference, to make proposals of a settlement before a master, and, on the coming in of his report, the Court judges of its sufficiency. Whether the husband applies by himself, or a suit for the wife's debt, legacy, portion, &c., be brought by the legal representa- tives of the husband, as his executors, or assignees, the result is the same, and the aid of the Court will not be afforded without a suitable settle- ment, unless, perhaps, the wife comes into Court, and on examination voluntarily waives any provision. It seems now to be understood, (Sir Wm. Grant, in Murray v. Elihanh, 13 Yesey, 1.) that the wife may, at her option, waive any settlement, though in one case, Lord HardwicTce still sternly insisted on a provision for her, {ex parte Highham, 2 Ves. 579.) if indeed we may rely on a loose authority, and which was directly contrary to a prior and strong case in his time on that point. {Willais V. Cay, 2 A tic. 07.) The extent of the provision will depend upon the cir- CHAP. IV.] FANNING v. DUNHAM 271 cumstances of each case. If the husband can lay hold of the property without the aid of a Court of equity, it is understood that he may do it; the Court has not the means of enforcinj? a settlement by interfering with his remedies at law. These are the general rules which have been established' by a course of practice under this peculiar doctrine of the Court, and which has been steadily and uniformly observed, for above a century past. Lord Keeper Wright, in Oxenden v. Oxenden, 2 Vern. 494. Bosvil V. Brander, 1 P. W7ns. 459. Jacobson v. Williams, 2 P. Wms. 382. Broum v. Elton, 3 P. Wms. 202. Jewson v. Moulson, 2 Atk. 417. Grey v. Kentish, 1 Atk. 280. Burden v. Dean, and Oswell v. Robert, 2 Ves. jun. 607, 680. Brown v. Clarke, 3 Vesey, 166. Lump v. Milnes, 5 Vesey, 517. Vide also 1 Vesey, 539. 1 Ves. & Beame, 300, and Murray v. Elibank, 13 Ves. 1.) In the case before me there are sufficient reasons for requiring some provision for the wife out of the fund in question. Though there be real property of the wife still undisposed of, yet the husband has a life estate in it, and her residuary interest would not be very productive. The fact has also occurred, that she has been left for years unsupported by her husband, in consequence of his unavoidable absence; and it appears from the master's report, that his means of living are small, and the exercise of his maritime profession unusually hazardous. Under these circumstances, provision ought to be made for the wife out of the moneys now due to her from her father's estate, before the husband can receive the aid of the Court. I shall, therefore, suspend the decree, and recommend, in the mean time, that the amount of 1,000 dollars be secured for the wife and child, by an amicable arrangement between the parties, and that the residue be paid over to the husband. If this recommendation be not effective, I will then make some direction in the case. N. B. The arrangement recommended took place, and the cause was not brought again before the Court. In Fanning v. Dunham (1821) 5 Johns. Ch. 122, 142, Chancellor Kent said: With respect to the relief that can be afforded here I take the rule to be, that a plaintiff who comes to a Court of Equity for relief against a judgment at law, or other legal security, on the ground of usury, cannot be relieved, except upon the reasonable terms of paying to the defendant what is really and bona fide due to him. On the other hand, if the party claiming under such usurious judgment, or other security, resorts to this Court to render his claim available, and the de- fendant sets up and establishes the charge of usury, the Court will decide according to the letter of the statute, and deny all assistance, and set aside every security and instrument whatsoever, infected with usury. It is perfectly immaterial, in respect to the application of the principle 272 FANNING v. DUNHAM [part i. to the case of the debtor who sues here, whether the usury be confessed by the defendant in his answer, or be made out by proof. The plaintiff must still consent to do what is just and equitable on his part, or the Court will not assist him, but leave him to make his defence at law, as well as he can. The case of Taylor v. Bell, (2 Vern. 171.) is a striking, but very harsh illustration of the rule. The plaintiff had given bonds with sureties, for moneys borrowed at usury, and a warrant to confess judgment, and judgment was entered thereon. He then brought his bill to be relieved, and for an account, and though the answer confessed the facts from which the usury was deduced, relief was denied, and he was ordered to pay principal, interest, and costs. So, in a late case in the Exchequer, (Skyrne v. Byhot, cited in Orde on Usury, 113.) where a bond and warrant of attorney was taken in an usurious transaction, the decree was, to take an account of the money really paid, and that on pay- ment thereof, the bond and warrant of attorney were to be delivered up. In 8cott v. Neshit, (2 Bra. 641. 2 Cox, 183.) we have this strong observa- tion of Lord Thurlow : " I take it to be an universal rule," he observes, " that if it be necessary for you to come into this Court to displace a judgment at law, you must do it upon the equitable terms of paying the principal money really due, with lawful interest. I have no idea of displacing a judgment upon any other terms." He directed, in that case, that the judgment should stand as a security for the money actually paid, with legal interest. The equity cases speak one uniform language; and I do not know of a case in which relief has ever been afforded to a plaintiff, seeking relief against usury, by bill, upon any other terms. It is the fundamental doc- trine of the Court. Lord Hardiuicke (1 Vesey, 320.) said, that in case of usury, equity suffers the party to the illicit contract to have relief, but whoever brings a bill, in case of usury, must submit to pay principal and interest due. Lord Eldon, (3 Fes. & Bea. 14.) after an interval of more than sixty years, declared precisely the same rule. At law, says he, you must make out the charge of usury, and at equity, you cannot come for relief, without offering to pay what is really due; and you must either prove the usury by legal evidence, or have the confession of the party. In Earjlcfion v. Shotwell, (1 Johns. Ch. Rep. 536.) the same rule fol- lowed in this Court, where a party came to be relieved against usury in a mortgage. I have been thus particular in showing the rule of equity on this sub- ject, because the plaintiff' has sought by his bill to have all the securities taken by the defendant, and infected with usury, declared void, and or- dered to be cancelled, without offering to pay any thing. His counsel have also contended, at the hearing, that the rule in equity, where the defendant either confesses the usury, or it is established by testimony, is the same as it is when usury is set up as a defence to a demand in law or equity. All that I can do in this case, consistently with my view of the established doctrine of the Court is, to direct an account to be taken CHAP. IV.] FANNING v. DUNHAM 273 of the dealings between the parties, and to hold the securities which the defendant has taken, to be good only for the balance which may appear to be due to the defendant, after deducting all usurious excess in any of his commissions and charges. The objection that presses upon the subject is, that the statute of usury may be, in a great degree, eluded, by taking a judgment bond, which pre- cludes the debtor from an opportunity of pleading the usury in a Court of law ; and if he can only be relieved upon the principles of a Court of Equity, or by the summary powers of a Court of law, acting upon equitable principles, the usurious creditor is sure to preserve his principal sum, and the lawful interest. But this objection was for a long time perceived, and felt, and endured in the Courts of law, before any remedy could be applied ; and though they interfered, at first, most effectually, by vacating the warrant of attorney, and allowing the party to come in and plead, they seem now to have abandoned the case to equitable relief, and to choose to administer no other. It is the folly of the party to have pre- cluded himself from pleading, by confessing judgment. Leges vigilan- tihus non dormientihus suhveniunt. At any rate, though it were even to be regretted, that Courts of law cannot place the debtor in a condition to be enabled to annul the contract altogether, vuider the sanction of the statute; yet certainly I should introduce a new principle into this Court, if I was now to undertake to displace a judgment at law, upon any other terms than those I have mentioned. The same objection and difficulty occur in the case of a mortgage taken to secure an usurious loan, with a power to sell, annexed to it, by means of which the creditor forecloses his mortgage by an act in pais, without calling upon any Court to assist him. The debtor has no relief in that case, but by applying to this Court, and then he must comply with the terms of paying what was actually advanced. He deprives himself, in that case, by the power to sell, as he does in the other, by his warrant of attorney to confess judgment, of an opportunity to appear in the char- acter of defendant and plead the usury. These are cases in which the party, by his own voluntary act, deprives himself of his ability to inflict upon the creditor the loss of his entire debt. Many other cases may be stated in which the same result will follow. The party is in the same situation if, instead of resisting the usurious claim, he pays it. He can- not then expect assistance to recover back more than the usurious excess. If the warrant of attorney, or the power to sell, were procured by fraud, or surprise, or accident, that would form a distinct head of relief, and in no wise applicable to the case. And, perhaps, it is sufficient for the pur- poses of public justice, and public policy, that the law has enabled a debtor, in every case, in which he does not of his own accord deprive him- self of the means, to plead the statute in discharge of his usurious con- tract, and of his obligation to pay even what was received, and that in all cases he can, by paying the actual principal received, and the lawful interest, be reliev^ed from the usurious exaction. 2U HANSON V. KEATING [pabt i. HANSON V. KEATING. In Chancery^ before Vice-Chancellor Wigram^ 1844/ [4 Hare 1.] Husband and wife assigned by way of mortgage the equitable interest of the husband in right of his wife in a term of years. The mortgagee filed his bill against the husband and wife and the trustee of the legal estate, for a foreclosure and assignment of the term.^ Vice-Chancellor : — The argument in this ease for the Defendant Mrs. Keating was founded upon the well established rule of this court, that the plain- tiff who would have equity must do equity, — a rule by which, properly understood, it is at all times satisfactory to me to be bound. But it is a rule which, as it was used in the argument of this case, takes for granted the whole question in dispute. The rule, as I have often had occasion to observe, cannot per se decide what terms the Court should impose upon the plaintiff as the price of the decree it gives him. It decides in the ab- stract, that the Court, giving the plaintiff the relief to which he is entitled, will do so only upon the terms of his submitting to give the de- fendant such corresponding rights (if any) as he also may be entitled to in respect of the subject-matter of the suit; — what these rights are must be determined aliunde by strict rules of law, and not by any arbi- trary determination of the Court. The rule, in short, merely raises the question what those terms (if any) should be. If, for example, a plain- tiff seeks an account against a defendant, the Court will require the plaintiff to do equity by submitting himself to account in the same matter in which he asks an account; — the reason of which is, that the Court does not take accounts partially, and perhaps ineffectually, but requires that the whole subject be, once for all, settled between the parties. It is only (I may observe as a general rule) to the one matter which is the subject of a given suit that the rule applies, (Whitaker v. ^ Wigram is tlie author of two classics of the profession : An Examination of the Rules of Law respecting the Admission of Extrinsic Evidence in the In- terpretation of Wills (1831) ; Points in the Law of Discovery (1836). Of his standing and services as a judge Mr. Foss may be quoted: "Sir James Wigram presided over his court for nine years (1841-1850), his decrees being remarkable for the lucid exposition of the legal principles involved in the cases on which he had to adjudicate. They were the subject of general approbation, and were highly extolled by those most competent to form a judgment. As roporied by Mr. Tlioinas llarc, all of them have the special advantage of having been seen and aj)provcd by the judge l)efore publication." (Lives of the Judges.) ^This sialciiiciil of the case is taken from the headnote. CHAP. IV.] HANSON V. KEATING 275 Hall, 1 Glyn & Jam. 213), and not to distinct matters pending between the same parties. So, in the case of a bill for specific performance, the Court will give the purchaser his conveyance, provided he will fulfil his part of the contract by paying the purchase-money; and, e converse, if the vendor were plaintiff, the Court will assist him, only upon condition of his doing equity by conveying to the purchaser the subject of the contract upon receiving the purchase-money. In this, as in the former case, the Court will execute the matter which is the subject of the suit wholly, and not partially. So, if a bill be filed by the obligor in an usurious bond, to be relieved against it, the Court, in a proper case, will cancel the bond, but only upon terms of the obligor refunding to the obligee the money actually advanced. The reasoning is analogous to that in the previous cases. The equity of the obligor is to have the en- tire transaction rescinded. The Court will do this, so as to remit both parties to their original positions: it will not relieve the obligor from his liability, leaving him in possession of the fruits of the illegal transaction he complains of. I know of no case which cannot be ex- plained upon this or analogous reasoning; and my opinion is, that the Court can never lawfully impose merely arbitrary conditions upon a plaintiff, only because he stands in that position upon the record, but can only require him to give the defendant that which by the law of the court, independently of the mere position of the party on the record, is the right of the defendant in respect of the subject of the suit. A party, in short, does not by becoming plaintiff in equity give up any of his rights, or submit those rights to the arbitrary disposition of the Court. He submits only to give the defendant his rights in respect of the subject-matter of the suit, on condition of the plaintiff obtaining his own. Cases may perhaps be suggested (some cases of retainer, for ex- ample) in which a question never can arise except against a plaintiff; but, as a general proposition, it may, I believe, be correctly stated, that a plaintiff will never, in that character, be compelled to give a defendant anything but what the defendant might, as a plaintiff, enforce, provided a cause of suit arose: Lady Elihanh v. Montolieu, 5 Ves. 737, Sturgis v. Champneys, 5 Myl. & Cr. 102. I have gone at length into this question, because the opinion I have expressed — which I intimated during the argument — was combated with great earnestness, and was said to be opposed to the opinion of Lord Cottenham in Sturgis v. Champneys. I do not so understand Lord Cottenham in that case, or I should at once defer to his judgment. But I do know, that, in one of his most elaborate and able judgments, — I mean that in Brown v. Newall, 2 Myl. & Cr. 558, and with equal clear- ness in Agaheg v. Hartwell, in the House of Lords, 5 CI. & Fin. 484, nom., — he held, that a party loses none of his rights by becoming plaintiff in a suit in equity. The Vice-Chancellor of England, and Lord Brougham, on appeal, upon the general ground that he who would have equity mu^t do equity, required the plaintiff in the latter cause to 276 HANSON v. KEATING [part i. submit to an account of certain monies he had in his hands, in which the defendants claimed an interest, as the price of a decree for an account against the defendants; there being no necessary connexion between the two accounts. This decree, therefore, went to the House of Lords under every circumstance of disadvantage. The House of Lords investigated the case with a view to the question, whether the defendants were en- titled to have the two accounts blended; and being of opinion that the defendants had no such equity, the decree was reversed. I am clear, therefore, that T am not bound in this case to impose upon the PlaintiS the terms required by the Defendant, only because he is Plaintiff, (for that was the argument at the bar). The question is, what are the equitable rights of the parties independently of their relative positions on the record. Sir Edward Turner's case, 1 Vern. 7, if it be law, answers this question. Now it is true, that some judges have thought the resolutions in that case questionable; but it is equally true, that they have considered it as binding upon all courts until the House of Lords should alter its own resolutions: Pitt v. Hunt, 1 Vern. 18, Jewson V. Moidson, 2 Ath. 417; and, unless I am altogether under a mis- take, Sir Edward Turner's case has always been, and is at this day, con- sidered law by conveyancers, and is acted upon accordingly. And the more strong has been the dissent from the resolutions in that case, the more do the judges who express that dissent affirm the authority of the case by following it. I believe the understanding of the Profession prior to the decision in Stiirgis v. Champneys to have been, that Sir Edward Turner's case was in accordance with the principles of the Court, and I advert to that understanding the more, not only because the Vice- Chancellor of England concurs in it, but because I know the learned editor of Mr. Roper's book on the Law of Husband and Wife always lamented the decision in Sfurgis v. Champneys as having in his opin- ion unsettled the law. In some cases of mere personalty there is no doubt of the wife's equity. But prior to Sturgis v. Champneys, the opinion of the Profession had, I believe, become settled, that estates in land were not subject to the same equity, upon the broad and important principle of preserving a strict analogy between legal and equitable estates in land. In the case of Burdon v. Dean, 2 Ves. jun. 607, the order was made by consent, and Lord Cottenham notices that circumstance in Sturgis v. Champneys. I shall not, however, decide this case without attentively reading Sturgis v. Champneys in private. ViCK-ClIANCELLOR : — At the close of the argument in this case, I stated what my under- standing of the law was; and I reserved to myself the duty only of examining the case of Slurgis v. Champneys, to determine whether I ronld act in this case upon my individual opinion as to the law, without directly impugning the plain tenor of Lord Cottenham's judgment in that case. My opinion is that I cannot do so, and therefore, in deference CHAP. IV.] HANSON V. KEATING 277 to that judp:ment, I shall follow it, although, if that case were out of the way, I should probably have decided otherwise. There would be no difficulty in distinguishing the facts of this case from those in Sturgis v. Champnci/s ; but the reasoning in that case would remain, and I cannot disregard it. "The invariable maxim of equity is that he who asks equity must do it. But this maxim is confined exclusively to the cases in which there is an equity between the parties, where, although the plaintiff is entitled to relief, he yet owes in conscience, though possibly not at law, a debt or duty to the de- fendant. T'Vonn's's Max. 1. In such cases relief is given on condition that the plaintiff does what in conscience he is bound to do to the defendant. An equity which any third person may have against the plaintiff can never be available, under this maxim, to the defendant." — Garland v. Rives (1862) 4 Rand. 282, 308. The rule is applied to a defendant setting up an equitable defence. "But the maxim 'He who seeks equity must do equity' is as appropriate to the conduct of the defendant as to that of the complainant; and it would be strange of a debtor to destroy equality and accomplish partiality, could ignore its long acquiescence and plead an unsubstantial technicality to overthrow pro- tracted, extensive and costly proceedings carried on in reliance upon its con- sent. Surely no such imperfection attends the administration of a court of equity. Good faith and early assertion of rights are essential on the part of the defendant as of the complainant." — Brown v. Lake Superior Iron Co. (1889) 134 V. 8. 530, 535. The maxim applies only to equities arising out of the same transaction, Whitaker v. Hall (1822) 1 G. & J. 213, not to unconnected matters, Wilson v. Foiokes (1852) 9 Hare 592, and the equity must respect the subject mat- ter of the suit. Gibson v. Goldsmid (1854) 5 De G. M. & G. 757; U. S. v. McRae (1867) L. R. 3 Ch. app. 79. Pomeroy considers the maxim as "not wholly a rule for the guidance of the equity judge in measuring out and apportioning reliefs among liti- gants. It has exercised a moulding influence in the development of important branches of the equity jurisprudence; certain doctrines are plainly derived from it as their chief though not perhaps their only source." After naming and briefly discussing the doctrines of election and marshalling as being derived from the maxim, he concludes : "A few other doctrines might, I think, be specified as thus related by a common descent: but enough has already been said to show the gieat importance of the principle. He who seeks equity must do equity, both as a practical rule governing the adminis- tration of remedies, and as the germ of equitable doctrines." — 1 Equity Juris- prudence, §§ 394, 395, 396. Mr. Phelps considers this to be one of the maxims that "stand pre-em- inently for conscience." He regards it as "of universal and constant applica- tion in every variety of case in which a plaintiff seeks to set in motion the ma- chinery of equity for purposes of injustice or oppression, or to secure an undue advantage, or to profit by his own wrong, or in spite of his own neglect." He considers its applications to be the Wife's Equity, Estoppel, Election. In- junction (in certain actions), Partition, Compensation, and Breach of Trust. — Judicial Equity, §§ 244-255. 278 BODLT v. [part i. J), — He Who Seeks Equity Must Come in with Clean Hands. EICH V. SYDENHAM. In Chancery, before Lord Keeper Ashley, 1672. [1 Cases in Chancery 202.] The plaintiff upon the loan of 90 I. had gotten a bond from the de- fendant of 1600 I. for payment of 800 I. and judgment thereupon. The defendant in the right of his wife was entitled to certain lands that were estated in other persons in law in trust for her. The bill was to have those lands subjected to the plaintiff's satisfaction here, inasmuch as the defendant was entitled to the trust in the right of his wife. But the security being gotten from the defenydant when he was drunk, the Lord Keeper would not give the plaintiff any relief in equity, not so much as for the principal he had really lent; and so the bill was dismissed.^ BODLY V. In Chancery, before Lord Chancellor Nottingham, 1680-81. [2 Cases in Chancery 15.] Bodly gave bond of 500 I. to the brother of the defendant, conditioned to pay to the defendant's sister (partly also to the bill) 50 Z. and to main- tain a base child paying a certain yearly sum for it. There was no place in the condition where the 50 I. should have been paid. The plaintiff by his bill offers payment of the 50 I. and brought it into court, and the defendant set forth by answer that the plaintiff was suiter to her in way of marriage, but abused her and left her, and thereupon the court re- fused to grant an injunction to the plaintiff against the suit on the ^ "A suit in equity is an appeal for relief to the moral sense of the chancellor. A court of equity is the forum of conscience. Nothing but good faith, the obligations of duty, and reasonable diligence will luove it to action. Its decree is the exercise of discretion, — not of an arbitrary and fickle will, but of a wise judicial discretion, controlled and guided by the established rules and principles of equity jurisprudence. One of the most salutary of these principles is expressed by the maxims, "He who comes into a court of CHAP. IV.] THE HIGHWAYMAN'S CASE 279 bond; the plaintiff replied and acknowledged he was a suitor, and really intended marriage, but that after he had begun to woo the woman, he was informed, as the truth was, that she had formerly been taken in a bed with another man, and that this was known publicly, and her father trepanned him to woo her, &c. he being a young man in Oxford. Yet now the Lord Chancellor denied the injunction saying, this court should not be a court to examine such matters. THE HIGHWAYMAN'S CASE. Exchequer^ 1725. [2 Evans' Pothier on Obligations, 3, n. 1.'] The bill stated that the plaintiff was skilled in dealing in several commodities, such as plate, rings, watches, &c. ; that the defendant applied to him to become a partner; that they entered into partner- ship, and it was agreed that they should equally provide all sorts of necessaries, such as horses, saddles, bridles, and equally bear all ex- penses on the road, and at inns, taverns, or ale houses, or at markets, or fairs. " And your orator, and the said Joseph Williams proceeded jointly in the said business with good success on Houuslow-Heath, when they dealt with a gentleman for a gold watch, and afterwards the said Joseph Williams told your orator that Finchley, in the County of Middlesex, was a good and convenient place to deal in, and that commodities were very plenty at Finchley aforesaid, and it would be almost all clear gain to them; that they went accordingly, and dealt with several gentlemen for divers watches, rings, swords, canes, hats, cloaks, horses, bridles, saddles, and other things; that about a month afterwards the said Joseph Williams informed your orator that there equity must come with clean hands," and "He who has done iniquity cannot have equity." A court of equity will leave to his remedy at law — will refuse to interfere to grant relief to — one who, in the matter or transaction con- cerning which he seeks its aid, has been wanting in good faith, honesty, or righteous dealing. While in a proper case it acts upon the conscience of a defendant, to compel him to do that which is just and right, it repels from its precincts remediless the complainant who has been guilty of bad faith, fraud, or any unconscionable act in the transaction which forms the basis of his suit. 19 L. Ed. 955."— Michigan Pipe Co. v. Freem Ditch etc. Co. (1901) 111 Fed. 285, at 287, Sanhorn, Circuit Judge. ^ This case, under the name of Everett t'. Williams, was originally reported in European Magazine for May, 1787, vol. 1, 360. 280 Mcmullen v. hoffman [part i. was a gentleman at Blackheath who had a good horse, saddle, bridle, watch, sword, cane, and other things to dispose of, which he believed might be had for little or no money ; that they accordingly went, and met with the said gentleman, and after some small discourse they dealt for the said horse, &c. ; that your orator and the said Joseph Williams continued their joint dealing together until Michaelmas, and dealt together in several places, viz., at Bagshot in Surrey, Salisbury in Wilt- shire, Hampstead in Middlesex, and elsewhere to the amount of £2,000 and upwards." The rest of the bill is in the ordinary form for a partnership account. 3d October, 1725, on the motion of Sergeant Girdler, the bill referred for scandal and impertinence. 29th November, report of the bill as scandalous and impertinent confirmed; and order to attach White and Wreathcock, the solicitors. 6th December. The solicitors brought into court and fined £50 each; and ordered that Jonathan Collins, Esq., the counsel who signed the bill, should pay the costs. The plaintiff was executed at Tyburn in 1730, the defendant at Maidstone in 1735. Wreathcock, the solicitor, was convicted of robbing Dr. Lancaster in 1735, but reprieved and transported.' McMuLLEN V. HoFPJiAN (1898) 174 U. S. 639, 654.— Mr. Justice Peckham. There are several old and very familiar maxims of the common law which formulate the results of that law in I'egard to illegal contracts. They are cited in all law books upon the subject and are known to all of us. They mean substantially the same thing and are founded upon the same principles and reasoning. They are: Sx dolo malo non oritur actio; Ex pacto illicito non oritur actio; Ex turpi causa non oritur actio. About the earliest illustration of this doctrine is al- most traditional in the famous case of The Highwayman. It is stated that Lord Kenyon once said, by way of illustration, that he would not sit to take an account between two robbers on Hounslow Heath, and it was ^In Ridler v. Moore (1797) Clifford's Southwark Election Cases, 371, KIenyon, C. J., is reported to have said: "He had heard of a bill filed in the Court of Chancery, to obtain an account of the profits of a partnership trade carried on at Hounslow, but when it appeared that the trade was taking the purses of those who travelled over the heath, the Court would not endure it." In a still earlier case, (before Loud Mansfield) Faikney v. Reynons (1707) 4 Burr. 2009, 2071, the principal case was cited as an authority by counsel. The case was lonf^ regarded as a jest or hoax of some equity draftsman, but a careful examination of the original records by Sir Frederick Pollock has established its genuineness. As Sir Frederick exclaims: "Truth is stranger than fiction!" Sec 9 Law Quarterly lleview, 105, 197-199. CHAP. IV.] McMULLEN v. HOFFMAN 281 questioned whether the legend in regard to the highwayman did not arise from that saying. It seems, however, that the ease was a real one. He did file a bill in equity for an accounting against his partner, al- though it was no sooner filed and its real nature discovered than it was dismissed with costs, and the solicitors for the plaintiff were summarily dealt with by the court as for a contempt in bringing such a case before it. (1 Lindley on Partnership, 5th ed. 94, note n; 9 Law Quarterly Review, (London) pp. 105 — 197. The authorities from the earliest time to the present unanimously hold that no court will lend its assistance in any way towards carrying out the terms of an illegal contract. In case any action is brought in which it is necessary to prove the illegal contract in order to maintain the action, courts will not enforce it, nor will they enforce any illegal rights directly springing from such contract. In cases of this kind the maxim is Potior est conditio defendentis. The foJlowing are only a few of the numerous cases upon the subject in England and in this country: Ilolman v. Johnson, (1775) 1 Cowper, 341; Booth v. Hodgson, (1795) 6 T. R. 405; Thomson v. Thomson, (1802) 7 Ves. 468; Shiffner v. Gordon, (1810) 12 East, 296; Sykes v. Beadon, (1879) L. R. 11 Ch. Div. 170; Scott v. Brown, (1892) 2 Q. B. D. 724; Belding v. Pitkin, (1804) 2 Caines, 147a; Atcheson v. Motion, (1870) 43 N. Y. 147; Leonard v. Poole, (1889) 114 N. Y. 371; Wheeler v. Russell, (1821) 17 Mass. 258, 281; Snell v. Dwight, (1876) 120 Mass. 9; Marshall v. Baltimore & Ohio Railroad Co., (1853) 16 How. 314, 334; McBlair v. Gihhes, (1854) 17 How. 232; Coppell v. Hall, (1868) 7 Wall. 642 ; Trist v. Child, (1874) 21 Wall. 441, 448 ; Woodstock Iron Company V. Richm.ond & Danville Extension Co., (1888) 129 U. S. 643; 1 Lindley on Partnership, 5th ed. 93, note, giving the result of the American cases.' ^ "The plaintiff, on the fraudulent representations that a foot race had been 'fixed' and that he would be allowed to share in the winnings, was in- duced to bet money of the defendants, as though it was his own. He was also persuaded to put up $5,000 of his own with the stake holder "to make a showing," as he was informed in the event a count of the stake money was demanded. As a matter of fact all the money [bet] on both sides belonged to the defandants, who had thus conspired to swindle the plaintiff. Held, although the plaintiff was in delicto, he was not in pari delicto with the con- spirators, and when the plaintiff demanded back his money before the pre- tended race was run, the plea of moral turpitude constituted no defence. Wripht V. Stewart et al. (H)04) 130 Fed. 905. "The law encourages a repudiation of an illegal contract and allows a locus peritential to the guilty participator as long as it remains an executory eon- tract and the illegal purpose is not put into execution. Bernard i\ Taylor (1893) 23 Ore. 416. It has been held otherwise after the delictum has been consummated. Abbe v. Marr (1859) 14 Cal. 210; Anonymous (1889) 10 Ohio Dec. 649. There is a decided tendency among courts and text-writers to dis- tinguish between degrees of guilt in such cases on the theory that the delib- 282 DERING v. EARL OF WINCHELSEA [part i. BERING V. EARL OF WINCHELSEA. In Chancery, before Lord Chief Baron Eyre, 1787. [1 Cox Chancery 318.] Thomas Bering, Esq. having been appointed collector of some of the duties belonging to the customs, it became necessary upon such appoint- ment for him to enter into bonds to the crown with three securities for the due performance of this office. Sir Edward Bering his brother, the Earl of Winchelsea, and Sir John Rous, having agreed to become sureties for him, a joint and several bond was executed by Thomas Bering and Sir Edward Bering to the crown in the penalty of 4000 I., another joint and several bond by Thomas Bering and the Earl of Winchelsea, and a third by Thomas Bering and Sir John Rous in the same penalty of 4000 I., all conditioned alike for the due performance of Thomas Bering's duty as collector. Mr. Bering being in arrear to the crown to the amount of 3883 I. 14 s., the crown put the first bond in suit against Sir Edward Bering, and judgment was obtained thereon for that sum: whereupon Sir Edward filed his bill against the Earl of Winchelsea and Sir John Rous, claiming from them a contribution to- wards the sum so recovered against him. The cause had been argued at length, in Michaelmas Term last, and now stood for judgment. Lord Chief Baron [Eyre]. — This bill is brought by one surety against his two co-sureties, under the circumstances above mentioned. Mr. Bering's appointment, the three bonds, and the judgment against the plaintiff, are in proof in the cause; the original balance due, and the present state of it, are admitted. The demand is resisted on two grounds : 1st, that there is no foundation for the demand in the nature of the contract : and 2dly, that the conduct of Sir Edward Bering has been such as to disable him from claiming the benefit of the contract, though it did otherwise exist. There is also a formal objection which I shall take notice of hereafter. I shall consider the second ground of objection first, in order to lay it out of the case. The misconduct im- puted to Sir Edward is, that he encouraged his brother in gaming and other irregularities; that he knew his brother had no fortune of his own, and must necessarily bo making use of the public money, and that Sir Edward was privy to his brother's breaking the orders of the Lords of the Treasury, to keep the money in a i)articular box, and in a particular erate swindler should not be able to protect himself by the legal maxim 7n pari delicto potior est conditio possidentis.' Pomcroy, Equity II, Sec. 942; Smith V. Blacldey (1898) 188 Pa. St. 550; Timmerman v. Bidwell (1886) 62 Mich. 205." 4 Columbia Law Review 604. CHAP. IV.] BERING V. EARL OF WINCHELSEA 28.3 manner, &c. This may all be true, and such a representation of Sir Edward's conduct certainly places him in a bad point of view; and per- haps it is not a very decorous proceeding in Sir Edward to come into this court under these circumstances: he might possibly have involved his brother in some measure, but yet it is not made out to the satisfac- tion of the court, but these facts will constitute a defence. It is argued that the author of the loss shall not have the benefit of a contribution; but no cases have been cited to this point, nor any principle which ap- plies to this case. It is not laying down any principle to say that his ill conduct disables him from having any relief in this court. If this can be founded on any principle, it must be, that a man must come into a Court of Equity with clean hands; but when this is said, it does not mean a general depravity; it must have an immediate and necessary relation to the equity sued for; it must be a depravity in a legal as well as in a moral sense.^ In a moral sense, the companion, and perhaps the conductor, of Mr. Bering, may be said to be the author of the loss, but to legal purposes, Mr. Bering himself is the author of it ; and if the evil example of Sir Edward led him on, this is not what the court can take cognizance of. Cases indeed might be put in which the proposition would be true. If a contribution were demanded from a ship and cargo for goods thrown overboard to save the ship, if the plaintiff had actually bored a hole in the ship, he would in that case be certainly author of the loss, and would not be entitled to any contribution. But speaking of the author of the loss is a mere figure of speech as applied to Sir Edward Bering in this case.^ ' The earlier form of the maxim seems to have been, "He that hath com- mitted iniquity, shall not have equity." — Francis, Maxims of Equity 5, where a number of early cases involving the principle are cited and digested. Mr. Spence cites this passage with the remark that this principle is a "de- scendant" of the other, He who seeks equity must do equity. — 1 Spence, Jurisdiction of the Court of Chancery 423, n. (a). As to what circumstances will constitute such a legal iniquity see Wardour V. Berisford (1687) 1 Vern. 452, when a defendant had a degree on a bill for an accounting of personal estate ct a deceased, because the plaintiff had broken the seal of a packet of papers containing the statements of the ac- count, which had been sealed by the deceased and left in the plaintiff's handg. It does not appear in the case that any papers were shown to be missing or tampered with, though a reporter's note states that the entry in the Reg. Lib. shows that the court found that some of the papers were missing. - The balance of the opinion, relating to contribution among co-sureties, has been omitted. 284 CADMAN v. HORNER [part i. CADMAN V. HORNER. In Chancery, before Sir William Grant, M. R., 1810/ [18 Vesey Junior 10.] The Bill prayed the specific performance of an agreement, by which the Defendant contracted to sell the fee-simple of certain premises for the sum of 600Z., payable by instalments. The agreement was signed by both parties; and the Defendant having received part of the purchase- money, resisted the performance on the ground, that the Plaintiff, who was his agent, had misrepresented the value of the estate ; producing evidence, that it was worth near 1200L ; also that, the Plaintiff had pre- viously to the agreement represented to him, that the houses had been injured by a flood, and would require between 60L and 60Z. to repair them ; whereas in truth the premises at the time of the contract required no more than forty shillings to put them in complete repair. No evi- dence of the value of the premises was entered into by the Plaintiff: but the Defendant in his answer admitted, that the clear yearly rent amounted to 49Z. ; and stated, that in 1805 he had purchased these prem- ises for 700Z. ; and had afterwards expended 300L in repairing them. The Master of the Rolls. The evidence of the inadequacy of the price in this case is considerably shaken by the Defendant's admission of the clear rent of the premises. It is difficult to conceive, that he could be ignorant of the value ; having * Lord Kingsdowne considered Sir William Grant the ideal and model judge, even superior to Lord Eldon. Indeed, Sir Samuel Romilly suggested that the surest way to work off Lord Eldon's arrears was to confine Eldon to his quarters and have Grant sit for him, or to quote the exact language: "A year's illness of His Lordship would enable the Master of the Rolls, who, upon such occasions was always accustomed to supply the Chancellor's place, to get rid, with his ordinary despatch of business, of the whole an-ear." Memoirs of Sir Samuel Romilly, vol. III., 186. The greatness of Sir William Grant was not lost upon the noble Lord him- self. For example: "I feel therefore a strong inclination of opinion upon this question; but I shall not hold any opinion of my own without doubt, where the Master of the Rolls has held directly the contrary." [James v. Dean (1804-5) 11 Vcs. ;58.3, ."JOl.] And on another and later occasion Lord Eldon said: "I feel that, in differing, in case I should find myself bound to difi'er from so great a judge, my own decision will not hereafter possess all the authority which might otherwise attach to it." [Mills v. Farmer (1815) 1 Meriv. 55, 94.] The following summing up of the qualities of this great judge may well be permitted : "Thouf,'h Grant had acquired a far greater reputation as a parlia- mentary orator than as a leader of a chancery bar, his success as a jiulge was remarkable. Charles Butler declared tliat 'The most perfect model of judicial eloquence' wliich had comic under his observation was that of Sir William Grant. CHAP. IV.] CADMAN V. HORNER 285 so recently purchased the estate; and laid out money in the improve- ment of it; and it is not easy to comprehend his conduct: nor does mis- representation by the Plaintiff in regard to what was requisite for the repairs of the houses by any means account for the disparity be- tween the price, paid for the estate, and the sum, at which the witnesses value it: yet, as upon the evidence the Plaintiff has been guilty of a degree of misrepresentation, operating to a certain, though small, extent, that misrepresentation disqualifies him from calling for the aid of a Court of Equity; where he must come, as it is said, with clean hands. He must, to entitle him to relief, be liable to no imputation in the trans- action. Viscount Clermont v. Tashurgh, 1 Jac. & Walk. 112. Wall v. Stuhhs, 1 Madd. 80. This is not a case, where the Court is called upon to rescind an agreement, and to decree the conveyance, executed in pur- suance of it, to be delivered up to be cancelled; which would admit a different consideration. Savage v. Brocksopp, VI, 328, and the notes, 541. post, 335. Ante, Marquis of I, 226. Lowndes v. Lane, Townshend V. Stangroom, Vol. 2 Cox, 263. The Bill was dismissed without costs.' 'His exposition of facts, and of the consequences deducible from them, his dis- cussion of former decisions, and showing their legitimate weight and authority, and their real bearings upon the point in question, were above praise ; but that the whole was done with such admirable care and simplicity that, while real judges felt its supreme excellence, the herd of hearers believed that they should in his 'Diary,' referring to Grant's resignation, says: 'His eminent qualities have done the same.' Reminiscences, 4th edition, I, 134-5. While Romilly as a judge, his patience, his impartiality, his courtesy to the bar, his despatch, and the masterly style in which his judgments were pronounced, would at any time have entitled him to the highest praise.' Memoirs, 1840, III., 324-5. Though a tory in politics. Grant supported Romilly's reform of the criminal law, while his speech in defence of the definitive treaty of peace actually secured the approbation of Bentham, who pronounced him to be 'an animal sui generis amongst lawyers, and indeed' amongst parliamentary men,' and added, 'The notions of the master about colonies approach nearer to what I call reason than those of almost anybody else I have met with.' " Dictionary Biogi'aphy, Article, Grant. Finally, it may be said that Lord Kingsdowne considered Sir William Grant as second only, if indeed second only, to Lord Stowell in the domain of inter- national law. ' "The misconduct of Mosher was intimately connected with the entire matter in litigation here. It was in relation to a part of the common fund and property which is the subject of the action. The court might therefore according to the settled maxims of equity jurisprudence, decline to act at plaintiff's instance. Discussing the principle on which courts of equity refuse to act in the enforcement of unconscionable claims, Mr. Pomeroy says: 'It assumes that the suitor asking the aid of a court of equity has himself been guilty of conduct in violation of the fundamental conceptions of equity jurisprudence, and therefore refuses him all recognition and relief with refer- ence to the subject-matter or transaction in question. It says that whenever 286 MASSI V. LAVINE [part i. MASSI V. LAVINE. In the Supreme Court of Michigan, 1905. [102 Northwestern Reporter 665.] Suit by August Massi and another against Morris Lavine and another. From a decree for the defendants, the complainants appeal. The purpose of this suit is to obtain the cancellation of a deed made by complainants to defendant Morris Lavine. The complainant Massi was surety on a bond for $500. Being threatened with suit on it, he deeded to the defendant property worth $2,500, in order, as he alleged, to avoid liability on this bond, it being understood between the parties that the defendant should deed the property back when " the trouble was over." The defendant insisted the whole transaction was bona fide, and that he had given value for the property.' Grant, J. (after stating the facts). The main issue of fact in the case is, was the sale a bona fide one, and the consideration paid, or was the title transferred to assist the complainant August Massi to avoid the payment of a debt ? Upon this the testimony was in direct conflict. There is no room to find that either is mistaken. Either the one or the other has committed perjury. Each has produced some corroborating evidence to support his version. We find it unnecessary to determine this controversy, as the case must be determined upon the complainants^ own evidence. a party who, as actor, seeks to set the judicial machinery in motion and ob- tain some remedy, has violated conscience or good faith, or other equitable principle in his prior conduct, then the doors of the court will be shut against him in limine; the com-t will refuse to interfere on his behalf, to acknowl- edge his right, or to award him in remedy.' (1 Pomeroy, Equity Jurisprudence, sec. 397.) A familiar illustration of the doctrine is found in cases where courts have declined to grant specific performance of valid contracts, be- cause unfairly obtained. The plaintiff in this case bases his action on an unconscionable claim. He occupies no higher ground than his assignor. With- out offering to do equity, he has no claim upon a court of conscience." Lewis v. Holdredfjc (1808) 56 ^'eb. 379, 382. "It is not every unfounded claim Avhich a man may make, or unfounded defence which he may set up, which will bar him from proceeding in a court of equity. The rule that he who comes into equity must come with clean hands must be understood to refer to wilful misconduct in regard to the matter in litigation. Sncll's Principles 35. All the illustrations given in Francis, p. 5, under the maxim, as he states it, 'He that hath committed inirpiity shall not have equity' show this." Lewis cG Nelson's Appeal (1870) 67 Pa. Ht. 153, IfiO. See note to the j)riticipal case as reported in Summer's Edition of Vcsey^ * The statement of facts has been abridged. CHAP. IV.] MASSI V. LAVINE 287 No fiduciary or confidential relation existed between Mr. Massi and Mr. Lavine. They were dealing? with each other at arm's length. They had had various business transactions top:etliGr for some years. The land conveyed is conceded to be worth $2,500, the consideration expressed in the deed. The bond signed by Mr. Massi with another bondsman was for $500. He claims that he was threatened only with the payment of $115. This was contingent upon his principal, the administratrix, not performing her duty. The letter which he relies upon as containing the threat to enforce the claim against him only asked him to see that the administratrix performed her duty. He apparently took no steps to that end. He was accustomed to business affairs. He had 80 acres of land besides that involved in this suit, which he did not transfer. I can reach no other conclusion from his own testimony than that he conveyed this land, worth $2,500, to avoid a liability of only $115. He does not come into court with clean hands, and equity will leave him in the bed he chose to make. Under his own testimony, he is not entitled to relief. The record does not justify a finding that this is a case where the stronger has overpowered the weaker, or the superior has taken advantage of the inferior, and by his persuasion and influence has procured an unlawful act to be done. The case falls within Poppe v. Poppe, 114 Mich. 649, 72 N. W. 612, 68 Am. St. Rep. 503. The decree is affirmed, with costs.' '"The statute 13 Eliz. c. 5, against fraudulent conveyances, applies to con- tingent liability, Gannard v. Eslava (1852) 20 Ala. 732, 741; hence to sure- ties. Bay V. Vook (1863) 31 111. 337, 347. Such a conveyance is valid as be- tween the parties, Proscus v. Mclntyre (1849) 5 Barh. 424; but the courts generally will not entertain a suit to put the grantee in possession, Southenv Ev. Co. V. Diiffey (1873) 48 Ga. 358; Kirkpatrick v. Clark (1890) 132 III. 342; for that would be executing the illegality. Medians v. Granberry {Tex. 1905) 84 S. W. 1070; Harrison v. Thatcher (1872) 44 Ga. 638. However a con- veyance may be had if ( 1 ) the grantor asks it in the interest of his creditors, Carll V. Emery (1808) 148 Mass. 32; or if (2) he conveyed under duress, Anderson's Admr's v. Merideth (1885) 82 Ky. 565; Austin v. Wiy^ston (Va. 1806) 1 H. & M . 32, 3 Am. Dec. 583; Bump, Fraudulent Conveyances, 2nd ed. 442, the parties not being in pari delicto. Sanford v. Feed {Ky. 1905) 85 S. W. 213; 2 Fomeroy's Equity 916; see also, Einsdill v. White (1861) 34 Vt. 558." — 5 Columbia Law Review 473. For an elaborate note on the principle of Massi v. Lavine, see 3 Ameri- can St. Rep. 121 et seq. "One of the most common occasions for the enforcement of this rule arises in cases where a debtor has conveyed or assigned or in any manner trans- ferred his property for the purpose of defrauding his creditors, and after- wards seek to set aside the transfer as against the grantee or assignee and recover back the property. The door of a court of equity is always shut against such a claimant. Freeman v. Sedwick, 6 Gill, 28, 39, 46 Am. Dec. 050; Stewart v. Iglchart, 1 Gill d J. 132, 28 A. M. Dec. 202; Bolt v. Rogers 3 Paige, 156; Stark's Ex'rs v. Littlepage, 4 Rand. 372; Janey v. Bird's Adm'rSy 3 Leigh, 570.'' Pomeroy, Equity Jurisprudence, § 401, n. 2. S88 WOLLSTENCROFT v. LONG [part i. E. — Equity Follows the Law. TOWNSEND V. KILMURREY. In Chancery, before Lord Chancellor Clarendon. [Tothill 121.] Fee simple land purchased by the father and descended to the son, this land shall not be assets in law nor equity to pay debts.' WOLLSTENCROFT v. LONG. In Chancerv, before Lord Chancellor Clarendon, 1664.^ [3 Reports in Chancery 12.]' Debtor upon Bonds and simple Contract makes a Conveyance of Lands upon Trust, to sell for payment of his Debts, It was declared to be the constant Practice, and so ruled and decreed here, That all the Debts should be paid in proportion : And that if the Lands were not sufficient to pay, all the Creditors should lose in proportion; and so it is where * The law of this case has been since changed by statute. See 3 & 4 Will. IV. c. 104; Woerner American Law of Administration § 574. "And if the law helps him not conscience cannot help him in this case, for conscience must always be grounded upon some law, and it cannot in this case be grounded upon the law of reason nor upon the law of God, for it is ' As a faithful minister of the Crown and as a master-hand in literature, the good Earl stands well in the first rank. As a chancellor his decisions have been treated with scant respect. For example, Lord Kenyon once said: "But it must not be forgotten that that case was determined by Lord Chancellor Clarendon, who after an absence from courts of justice for many years was then recently returned to this country and had not been for some time in the habits of business." [Milbourn v. Ewart (1703) 5 T. R. 381, 384.] And Lord Lyndhurst said, in speaking of a case before his noble predecessor: "That, I woukl remark, is the only case wliir-h is open to the observation that was made at the bar of its- being a judgment pronounced immediatoly after the Restora- tion, and therefore not entitled to much weight. It was decided by Lord Clarendon." [Partridge v. Osborne (1828) 5 Russ. 195, 248.] Lord Clarendon had always two Masters in Chancery to keep him right in matters of practice, and he never made a decree without the assistance of two of tlie judges. (3 Campbell, Lives of the Lord Chancellors, Ch.. LXXIX.) ' S. C. Freeman 175; 1 Cases in Ch. 32. CHAP. IV.] WOLLSTENCKOFT v. LONG 289 Lands are given to pay Debts and Legacies, they shall be paid in equal proportion, because the Land is made liable to one as well as the other by the Debtor himself ; but otherwise it is in Case of Debts on Judgment, that in their own Nature charge the Lands/ not directly bye those laws that a man shall be tenant by the curtesy, but by the custom of the realme. And therefore if that custom help him not, he can nothing have in this case by conscience, for conscience never resisteth the law of man nor addeth nothing to it, but where the law of man is in itself directly against the law of reason or els the law of God, and then properly it cannot be called a law but a corruption, or where the generall groundes of the law of man worketh in a particular case against the sayde laws as it may do, and yet the law good as it appeareth in divers places in our fyrste epalogue in latin or els, where there is no law of man provided for him that hath right to a thynge by the law of reason or by the law of God. And then sometime there is a remedy given to execute that in conscience, as by a Sub pena but not in all cases for sometime it shalbe referred to the con- science of the partie, and upon this ground (that is to say) that when there is no title given by the common law, then there is no title by conscience." St. Germaine, Doctor and Student, f. 85 (1531). ^ See cases under the maxim, "Equality is equity." "We find that it was held in the Court of Chancery, in violation of the law established by legal decisions, that one executor and one joint tenant might in Chancery sue his companion: — that, although from loss or other accident an obligee could not produce his bond, without which by a positive rule of law he could have no remedy, yet he might enforce the obligation in Chan- cery: — that where the lessor entered on his tenant, and thus, by the rule of law, suspended the rent, he should have relief in equity. So the Court of Chancery in certain cases gave relief against forfeitures, which had been clearly incurred according to the rules of law; the court carrying its juris- diction to the extent of ordering restitution after judgment at law, and ex- ecution ; the court in those cases, avoiding to transgress the provisions of the statutes before adverted to, by not examining into the judgment itself, but prohibiting the party from putting it in force; * * * So notwithstand- ing the maxim before alluded to, where a remedy was provided by the law, which was held by the common law judges to be sufficient, yet the Court of Chancery in some cases gave a more effectual remedy of its own in- stead. * ♦ * Thus it appears that a jurisdiction to interfere, in some cases at least, with the rules and maxims of law on the ground of equity and conscience, as well as to supply its defects was clearly exercised." — 1 Spence, Jurisdiction of the Court of Chancery 409-411. "This consideration brings to my mind a cause which happened in the Court of Chancery very early in my first attendance of Westminster Hall as a student, which occasioned some mirth as well as attention. The decision is not reported in any book, and my memory does not serve me to state all the circumstances of it. In the law of England there is a process called an Audita Querela, which is a suit at common law, whereby a defendant may be relieved after and against a judgment or execution, upon particular equitable circumstances but limited and bound by certain rules. A defendant in a 290 BUXTON v. SNEE [part i. BUXTON V. SNEE. In Chancery, before Lord Chancellor Hardwicke, 1748. [1 Vesey Senior 154.] The demand by the plaintiff was for work done in repairing a ship. 1 Salk. 34. 1 Stra. 695. 1 Atk. 234. Douglas, 97. Cowper, 636. The defendants were part owners, or their representatives, who re- ceived the benefit thereof : and notwithstanding insisted, that they should not make a satisfaction. Lord Chancellor. This is undoubtedly a harsh defence. (It has been held, that where a captain contracts, for the use of the ship, credit is given him in respect of his contract: also to the owners as the contract is on their account, and the creditor has a specific lien on the ship; also a captain not per- sonally contracting is not answerable personally for the ship's neces- saries. Per Lord Mansfield, in Farmer and Davies, Hill. 26 Geo. 3. B. R. reported by Durnford and East. Their having received the benefit is not suflScient to make them liable : for the court will not do so, if the court cannot come at it by way of contract or consequential equity. The questions on this case are two. First, whether the part-owners by the employment of the plaintiff, either by the master or the husband are become personally liable for the debt created, and contracted for the repairs? The second, supposing they are not, whether the ship itself has contracted a lien by the Admiralty law allowed here; and then whether the money arising by the sale is answerable to the plaintiff? judgment had, by some fraudulent contrivance, artfully brought his case within some of those rules, and sued his Andita Querela: against which the plaintiff in the judgment was advised he could make no defence at law, and ln'ought his hill in Chancery to be relieved against the Audita Querela. It happened that both my Lord Cowper, then Lord Chancellor, and the Master of the Rolls were called away upon public business, and Mr. Justice Eyre, a strict common lawyer, who had never practiced at all in a Court of Equity, sat in Chancery that day, by virtue of the standing commission to hear causes in the absence of the Chancellor. The counsel for the defendant in Chancery, who was plaintiff in the Audita Querela, thought themselves sure of a victory, when so extraordinary a cause as a bill in Chancery, to be relieved against a common law suit of Equity, came to be heard before a comman law judge; and the Counsel for the plaintiff' were proportionately in despair. But the .Judge found that the plaintiff in Chancery had the merits on his side; and yet the court of common law must, by reason of their general rules established, have given judgment against him, and therefore he decreed an injunction to stay proceedings in the Audita Querela. This decree was upon a rehearing affirmed by my Lord Cowper, not without some observation upon the singularity of the case." — Letter of Lord Hardnicke to Lord Karnes, (ITT)!)) J'arkes' History of the Court of Chancery 501, 507. CHAP. IV.] BUXTON V. SNEE 291 I will consider the last question first, and am of opinion that the plaintiff is not intitled to follow the money into the hands of the de- fendants. Certainly by the maritime law, the master has power to hy- pothecate both ship and cargo for repairs, &c. during the voyage ; which arises from his authority as master, and the necessity thereof during the voyage : without which both ship and cargo would perish ; there- fore both that and the law of this country, admit such a power. But it is different, where the ship is in jjort, infra corpus comitalus, and the contract for repairs, &c. made on land in England; then the rule of that law must i)revail. I know no case, where the repairs, &c. whether it was by part-owners or sole owner, master or husbands, have been held a charge or lien on the body of the ship. Watki7ison v. Barnardiston, 2 P. Wms. 367, being a direct authority to the contrary; and if the river infra corpus comitatus should be proceeded against and stopi^ed for such debt, the courts of law would issue a prohibition ; the contract being at land, and not arising from necessity. See 1 Salk. 34 ace. If there- fore the body of the ship is not liable or hypothecated, how can the money arising by sale be effected or followed ; the one being consequen- tial of the other; so that the foundation of an equity's arising for the plaintiff fails. But it is said, that sounds harsh in a court of equity ; for even admitting there is no lien on the body of the ship, yet the de- fendants having received the benefit should make satisfaction ; but that follows not as an equitable consequence ; for suppose the owner of an house lays out a great sum of money in repairs; upon its descending to his heir at law he cannot be affected with the debt for these repairs, although he receives the benefit; for though that be the law of Holland, that it is a lien on the house, it is not so here : for if whoever receives a casual benefit, should be liable to make satisfaction, it would extend to several cases where it ought not. The demand then must rest on the first question : whether the defendants, or those in whose place they stand, are personally liable for the debt; of which I doubt; but will give the plaintiff all the assistance I can ; for it is just, that if he can come at it, he ought. Undoubtedly in general, whoever contracts with another, as factor or agent for a third person, it will bind his principal; (And see Cowp. 255. Bull. Ki. Pri. 130.) and there is an election, as in the case of B lac kiv ell- Hall, and several other factors, to being an action against either; and there are several cases, where an action may be brought against a principal, though not named at the time of the con- tract. As among the Brokers, who will not be allowed as witnesses to prove the contract, and that it was made for the principal, though they were not named. It is no answer therefore to say, that the part owners are not named. Then how far the act of the master, can create an Assumpsit be- tweeen the plaintiff and the part-owners. Had it been in the course of the voyage, it would have been another consideration; but here it seems the master did not act as agent for the part- owners, but the husband's. 292 WATTS v. BALL [part r. It is true that is in the answer under the words heard and helieve; but not being replied to, it must be taken as evidence, because no opportunity is given to prove it. Then the question, which is very material, and in respect of which I am not sufficiently informed of the course of trade, is upon the husband : whether the part-owners are bound by the contract with the husband; he being general agent? Supposing the principle upon which the plaintiff goes, is true, the contract with the husband is joint, and will survive. The most beneficial thing then, that can be done for him, is, to direct, that he be at liberty to bring an action against the survivors : to restrain the defendants from pleading the statute of limitations, or from in- sisting upon any discharge under a commission of bankruptcy against one of them. But let the bill be dismissed, so far as it seeks any relief against the body of the ship, or the money arising by the sale thereof.' WATTS V. BALL. In Chancery, before Lord Chancellor Cowper, 1708. [1 Pere Williams 108.] The case in effect was: one seised of lands in fee had two daughters, and devised his lands to trustees in fee, in trust to pay his debts, and to convey the surplus to his daughters equally. The younger daughter married and died, leaving an infant son and her husband surviving. The eldest daughter brought a bill for a partition ; and the only ques- tion was, whether the husband of the younger daughter should have an estate for life conveyed to him, as tenant by the curtesy? The husband in his answer had sworn, that he married the younger daughter, upon a presumption that she was seised in fee of a legal estate in the moiety; that at the time of the marriage she was in the actual receipt of the profits of such moiety; and it was admitted, that this trust was not discovered, until after the death of the younger daugh- ter, nor until it was agreed, that a partition should be made. ' "Work done for a ship in England is supposed to be on the personal credit of the employer." — Per Lord Mansfield in WiUcins v. Carmichael (1779) Douglas 97, 101. See notes to this case in Belt's Supplement to Vescy Senior. As to liability in assumpsit for necessaries supplied to the ship, see Rich v. Coe (1777) 2 Cowper C3G. CHAP. IV.] HEARD V. STANFORD 293 Decreed by Lord Chancellor, that trust estates were to be governed by the same rules, and were within the same reason, as legal estates;* and as the husband should have been tenant by the curtesy, had it been a legal estate, so should he be of this trust-estate ; and if there were not the same rules of property in all courts, all things would be, as it were, at sea, and under the greatest incertainty. His lordship added, that this being a case of some difficulty, he could have wished it had not come before him as a cause by consent; but his opinion was, that the husband ought to be tenant by the curtesy; and the rather because it appeared that he, upon his marriage, did conceive and presume his wife to be seised of a legal estate in the moiety, and had reason to think so, she being in possession thereof. Wherefore it was decreed, that an estate for life in a moiety in severalty, should be conveyed by the trustees to the husband, with re- mainder in fee to his son. In this cause Mr. How, (who was for the husband) cited the case of Sweetapple versus Bindon, where money was devised to be laid out, for the benefit of a feme sole, in the purchase of lands in fee; the feme married and had issue, and died, the husband surviving; and decreed in equity, that tho' the money was not invested in a purchase during the life of the wife, yet in regard, in this case, if it had been so laid out, the husband would have been tenant by the curtesy, and that this was as land in equity, therefore the husband was equally intitled. And Mr. Vernon told me, that tho' in the case of Lady Radnor and Vandehendy it was decreed in equity, and affirmed in the house of lords, that a feme dowress should not have the benefit of a trust term, where the husband died seised of the legal estate of the freehold, yet that the contrary, on consideration, was decreed by Sir John Trevor, Master of the Rolls, in the case of Dudley versus Dudley. HEARD V. STANFORD. In Chancery, beforp: Lord Chancellor Talbot, 1735.* [Forrester 173.]' The Defendant's Wife, before Marriage, gave a Promissory Note for 50 I. to the Plaintiff, in Consideration of five Years Service, at the Rate of 10 I. per Annum, and afterwards married the Defendant, who had a Fortune with her to the Amount of 700 I. Part whereof consisted of ^ See the opinion of Lord INIansfield, C. J., in Burgess t\ Wheate, supra 56. ^ There is but one view of the ability and character of this great and good man. Of the many tributes to him as a chancellor three may be quoted: *S. C. 3 Peere Williams 409. 294 HEAED v, STANFOKD [part i. Things in Action, some of which the Defendant received as Husband, and the rest he took as Administrator to his late Wife. The Bill was for the PajTnent of this Note, upon Suggestion of his having received a great Fortune with her, and never having made any Settlement upon her. The Defendant insisted, That that Part of his Wife's Fortune which was not reduced into Possession by him during the Coverture, and which he received after her Death as Administrator, was not near suf- ficient to pay her Debts; and that he had already paid more than that Part amounted to. The Question was, WTiether the Husband should be liable in Equity to the Payment of his deceased Wife's Debts; and the Fortune he had received with her should be looked upon as equitable Assets? it being clear, that at Law he is chargeable only during the Coverture, and no longer. For the Plaintiff was cited the Case of Freeman versus Goodham, 1 Chan. Ca. 295, where, upon a Bill brought against the Husband for Dis- covery of Goods bought by the Wife before Marriage, which after her Death came to his Hands, the Lord ISi ottingham said, he would change the Law in that Point. And also that of Powell versus Bell, Ahr. Eq. Ca. 60. pi. 7. Lord Chancellor. The Question is, Wliether the Husband, as such, be chargeable for a Debt of his Wife's after her Death in a Court of Equity? As on the one hand the Husband is by Law liable to all his Wife's Debts during the Coverture, although he did not get one Shilling Portion with her, and that her Debts should amount to 2000 I. or any other Sum whatever; so on the other hand it is as certain, that if the 8ir Lord Kenyon, M. R., considered him to be a man of "Consummate knowl- edge" [Milbourne v. Milbourne (1786) 1 Cox 247, 248]; Chief Justice Willes termed him a very great chancellor [Crispe v. Perritt (1744) Willes 467, 472] ; while Sir John Bayley rightly declared liim to be "one of the greatest real property lawyers that ever filled the office of Lord Chancellor" [Doe dem. Lloyd V. Passingham (1827) 6 Born & Cr. 305, 315]. "No man ever occupied the high position he had attained with more unmixed admiration; nor did the death of any great judicial dignitary ever cause so much general lamentation. Living too short a time to excite the jealousy of his colleagues in the ministry, or to become obnoxious to the opposition, he presided long enough in his court to prove himself a most efficient and impartial judge. His patience in listening to arguments, his discriminations in sifting facts, his readiness in applying precedents, and the reasons upon which he founded his judgments, made his decrees acceptable to the legal community, and prevented murmurs even among the unsuccessful litigants. The purity of his life, his iniblomished integrity, his humanity to the dis- tressed, his liberality to all, his gentleness of manners, his \nbanity, cheerful- ness, and wit, gained him so many friends, and were so universally recognized, that he not only escaped the vituperation of political writers during his life, but both parties after his death vied with each other, both in prose and verse, in uiKjualificd encomiums on his character." — Foss, Lives of the Judges. CHAP. IV.] HEARD v. STANFORD '295 Debt be not recovered during the Coverture, the Husband is no longer chargeable as such, let the Fortune he received with his Wife be never so great. The Case perhaps may be hard, but the Law hath made it so, that it may be equal on both sides, as well where the Husband is sued during the Coverture, for a Debt of his Wife's, with whom he had no Fortune, as where he by her Death is discharged from all her Debts, not- withstanding any Fortune he may have received in Marriage with her; so is the Law, r.nd the Alteration of it is the proper Work of the Legis- lature only. There are Instances indeed in which a Court of Equity gives Remedy where the Law gives none; but where a particular Remedy is given by Law, and that Remedy bounded and circumscribed by par- ticular Rules, it would be very improper for this Court to take it up where the Law leaves it, and extend it farther than the Law allows. Besides, if Relief was to be given in this Case, it would be very un- reasonable not to extend it to the former Case, where the Hardship lies on the Husband, which was never yet done. There is a Case which may, and probably does happen very often, that comes very near to this. Sup- pose Goods are sold for a certain Price to a Person, who just after the Delivery, and before the Price paid, becomes a Bankrupt, and these very Goods are vested in the Assignees; the Vendor can come in but as a Creditor for his Share; and can neither pretend to have the Price agreed, nor pursue the Goods in the Hands of the Assignees ; and yet this is a Hardship upon him, but not such as is relievable here. In the Case of Freeman versus Goodham, the Goods never came to the Husband's Hands until after the Wife's Death; which made it a very hard Case upon the Creditor, and probably occasioned the Saying of my Lord Nottingham: But even there he only overruled a Demurrer, put into a Bill for a Discovery of the Goods; and it does not appear what became afterwards of the Cause. And in that of Powell versus Bell the Wife was Administratrix of her first Husband, and it did not appear what she had in her own Right, and what as Administratrix of her Husband ; in which Case the Marriage is no Gift in Law of the Goods which she hath in Auter Droit: And upon this Reason only are founded all the Cases where a surviving Husband has been charged with his Wife's Debts after her Death. And so decreed an Account of what the Husband had received since his Wife's Death as her Administrator; and that he should be liable for so much only: But as to any further Demand against her dismissed the Bill.' ^ See note 3 to Rees v. City of Watertown. Poineroy, commenting on this passage, says, "It should be observed, how- ever, that equity had not, in developing its jurisdiction, invaded the partic- ular doctrine of the common law which was involved in this case ; but it had certainly disregarded other rules as positive and well settled, in its previous course of decision." Equity Jurisprudence § 425. "Thus in the first place it was said, that it is the business of a court of 296 COWPER V. EAEL OF COWPER [part i. CowPER V. Earl of Cowper (1754) 2 Peere Williams 720, 753.'— Sir Joseph Jekyll, M. E. — The Law is clear, and Courts of Equity ought to follow it in their judgments concerning titles to equitable estates: other- wise great uncertainty and confusion would ensue ; and though proceed- ings in Equity are said to be secundum cUscretvonem honi viri, yet when it is asked, vir botius est quis? the answer is qui consultia patrum qui equity to abate the rigour of the common law [Lord Karnes, Principles of Equity Tom. 1, p. 41 et seq.] But no such power is contended for. Hard wa^ the case of bond-creditors, whose debtor devised away his real estate: rigorous and unjust was the rule which put the devisee in a better condi- tion than the heir ; yet a court of equity had no power to interpose. Hard is the common law still subsisting, that land devised, or descending to the heir shall not be liable to simple contract debts of the ancestor or devisor, although the money was laid out in purchasing the very land; and that the father shall never immediately succeed as heir to the real estate of the son ; but a court of equity can give no relief; though in both these instances the artificial reason of the law, arising from feudal principles, has long ago en- tirely ceased. * * * In all such cases of positive law, the courts of equity as well as the courts of law, must say with Ulpian, "hoc quidem perquam durum est, scd ita lex scripta est." — 3 Black Com. 430. ' "In this case," says Pomeroy, "the court reluctantly adhered to the legal canon of descent which prefers the whole to the half blood, and held that an equitable estate in fee descended to a cousin of the whole blood, instead of to a brother of the half blood of the deceased owner." — Equity Jurispru- dence § 428, n. 3. "Equitas seqiiitur legem. Wlien the court finds the rules of law right, it will follow them, but then it will likewise go beyond. One case of that kind occurred to me during the argument. The statutes of forcible entry, only provide for removing the force; but what says this Court, even where a man has not a legal but only an equitable estate, or be it one or the other, we will here, not only remove the force, but grant him an injunction, to quiet the possession of such an estate as he had then, and three years before." — Per Lord Chancellor Hardwicke in Paget v. Gee (1753) Amb. (Blunt's edition) 807, 810. "It may be said, that honi est judicis ampliare legem. But this maxim is not to be understood as that a Judge in equity should alter the maxims of the common law, for this would be to assume a power paramount to the law. The utmost that can be meant by this maxim, if it has any meaning in it, is, that this coiirt, provided it has the law to justify it, should sometimes usurp upon the jurisdiction of the courts at law. If this court should extend its jurisdiction in this point, it might by a parity of reason extend it in other points, viz. determine how often distresses should be taken. A collateral warranty was certainly one of the hardest and most cruel points of the com- mon law, because there was not so much as an intended recompence, yet I do not find that this Court ever gave relief in it." — Per Lord Chancellor Cow- per, Earl of Bath v. liherwin (1710) 10 Mod. 1, 3. "And undoubtedly the warranty is collateral to the title of John, who claims by purchase, and not from the person who made the warranty; and as this was before the Stat. 4 4. 5 2. Anne, cap. 16 (how hard and unreasonable so- CHAP. IV.] COWPER V. EARL OF COWPER 297 leges juraque servat; and as it is said in Rook's Case, 5 Rep. 99 b. that discretion is a science, not to act arbitrarily according to men's wills and private affections; so the discretion which is executed here, is to be governed by the rules of Law and Equity, which are not to oppose, but each in its turn, to be subservient to the other; this discretion in some cases, follows the law implicitly, in others, assists it and advances ever it may be) there is no room for a court of equity, which cannot alter the law, to interpose." Per Lord Chancellor Talbot in Savage v. Tvenanted to be done is considered as done." — Per Sir William Grant, M. R., in Stead v. 'Neivdigate (1817) 2 Meriv. 521, 530. "Whatever is agreed to be done is considered in equity as done. It follows, from this principle, that a contract for the sale of real estate is considered, in equity, as a conversion of land into money. The vendor's interest ceases to be real estate. It becomes a chose in action, a personal demand for the con- sideration-money, which, in case of death, goes to his personal representatives. CHAP. IV.] BUSH V. BOUTELLE 317 place. Here Mrs. Harding never prayed a conveyance, and one can- not tell whether she ever would; and the maternal heir is not to be con- sidered as a privy in blood, but a mere stranger. This very cause warrants the distinction here taken, i. e. with regard to the mill, &c. mentioned in the opinion on the last question. It stands thus: Nicholas nar(]ing, after having agreed to release to Chandler the equity of redemption of a moiety of the mortgaged premises, agrees to purchase of Chandler the mill, &c. and makes Chandler stipulate to convey these premises to him and his heirs, or such person as he shall direct. The equity of redemption was released, and then Chandler stip- ulates to convey to Harding and his wife, and the survivor of them, and the heirs of the survivor; the consequence is, that Mrs. Harding takes this estate, not as the old use, but by purchase, under the appointment of her husband, which enlarges the course of descent beyond that of the old use. And since what is covenanted to be done is considered done, the mill goes in a course of descent (in fault of paternal heirs) to the heir ex parte materna. In the deed of 1718 there is nothing like such a covenant, nor any thing which shews she intended to enlarge the course of descent. Wherefore under these circumstances, as the opinion of the judges is proposed to be confirmed, I think there is ground for the claim of the maternal heir. BUSH V. BOUTELLE. In the Supreme Judicial Court of Massachusetts, 1892. [156 Massachusetis 1G7.] MoRTOX, J. The question in this case is whether the deeds from Cyrus E. Boutelle to the defendant were given in contravention of the insolvent law. It is stated in the agreed facts, that at the time the defendant took them, and when the loan was made for which they were given to him as security, Cyrus was insolvent and knew himself to be so, and the defend- and the legal title is held only as a security for the payment of the debt. The vendee becomes in substance the owner of the estate. In his hands it is sub- ject to dower curtesy, and to all the incidents of real estate; and upon his death it goes to his heirs and not to his personal representatives. This con- version takes place notwithstanding that it may afterwards be defeated by the non-payment of the purchase-money. Even when the conversion is subject to the happening of a contingency, the property will be taken to be as of the nature it was intended to be upon the happening of the coniingeney: Lawes v. Bennett, 1 Cox Ca. Ch. 167; Leigh & Dalzell on Equit. Conversion 19."— -Per Lewis, J., in Long^vell v. Bentley (1854) 23 Pa. St. 99, 102. 318 BUSH V. BOUTELLE [part i. ant had reason to believe him to be so. It is not stated that the deeds were taken or that the money was advanced by the defendant with a view to enable Cyrus to prefer the bank, or to evade in any way the in- solvent law. That is denied in the defendant's answer. We understand the question, therefore, to be whether, on the agreed facts as thy stand, without anything more, the deeds as matter of law were in contra- vention of the insolvent law. It appears that Cyrus had a note coming due at a bank in Fitchburg. The day before it fell due the indorsee declined to renew it. Cyrus thereupon applied to the defendant, saying that the action of the in- dorsee put him in a tight place, and asking the defendant to get the money for him on his (Cyrus's) note, and saying he would give the de- fendant security on two lots, naming them, either by mortgage or warranty deed. Instead of getting the money in the manner Cyrus sug- gested, the defendant himself advanced the money and kept the note, which was dated April 10, 1889. Owing to his absence at Worcester as a witness, and by reason of other pressing business, Cyrus was unable to complete the transaction till April 23, when he made and delivered as security to the defendant warranty deeds of the two lots. The petitioner contends that the arrangement between the defendant and Cyrus contemplated the giving of security at a future time, and not as a part of or contemporaneous with the lending of the money, and that when the defendant received the deeds he took them as an unsecured creditor receiving security for an unsecured debt. We do not think the transaction can be so regarded. The proposal to give security was made at the same time as and as a part of the request for the loan. It was made before the money was lent, to induce the lending of it, and the money was lent, for aught that appears, in good faith on the promise of the security. The only reasonable con- struction to be given to the letter of Cyrus is that it was expected and in- tended by the parties that the lending of the money and the giving of the security would be contemporaneous, and that Cyrus understood that he was to give, and the defendant that he was to receive, present security for a present loan. The accidental delay could not affect the real char- acter of the agreement, or what was done. The situation of the debtor remained unchanged, and there is nothing to show that the delay was for the purpose of giving credit. When the security was given, equity vi^ould treat it — on the principle that a thing is considered done at the time when it ought to have been done — as if it had been given at the time agreed, and at law possibly the interval might be disregarded, and the agreement and the giving of the deed be regarded as contemporaneous. Gardiner v. Gerrish, 23 Maine, 46. 1 Story, Eq. Jur. § 649. Nickerson v. Baker, 5 Allen, 142. Hawks v. Locke, 139 Mass. 205. Commonwealth v. Devlin, 141 Mass. 423, 431. Cartwright v. Wilmerding, 24 N. Y. 521, 533, 534. The cases relied on by the petitioner on this branch of the case are CHAP. IV.] BUSH V. BOUTELLE 319 readily distinguishable from this case. In Blodgett v. Hildreth, 11 Cush. 311, the agreement to give security was clearly executory, and at the time the security was given there was clearly an antecedent debt. In Forbes V. Howe, 102 Mass. 427, a former mortgage was surrendered and a new one was taken on other property to secure a debt that had existed some time. The second mortgage was clearly invalid. The same is in sub- stance true of Simpson v. Carlelon, 1 Allen, 109. Holmes v. Wijichester^ 135 Mass. 299, is the strongest case cited by the petitioner, but the con- veyance which was the subject of controversy was not made till two years and four months after the time when it should have been made. The court expressly said that the evidence was " consistent with the view that she [the plaintiff] did not expect a present conveyance from her husband, but left it to be made by him at some time in the future." The case of Copeland v. Barnes, 147 Mass. 388, stands on the same ground in effect as Forbes v. Howe, 102 Mass. 427, as does also Paine v. Waite, 11 Gray 190. On the other hand, we think the view which we have taken is supported by numerous authorities. Williams v. Coggeshall, 11 Cush. 442. Nich- erson v. Baker, 5 Allen, 142. Stetson v. O'Siillivan, 8 Allen, 321. Alden v. Marsh, 97 Mass. 160. Parsons v. Topliff, 119 Mass. 245. At- lantic National Bank v. Tavener, 130 Mass. 407. Holmes v. Winchester, 133 Mass. 140. James v. Newton, 142 Mass. 366. Tiffany v. Boatman's Institution, 18 Wall. 375. Cartwright v. Wilmerding, 24 N. Y. 521. Ex parte Ames, 7 Nat. Bankr. Eeg. 230. Sparhawk v. Richards, 12 Nat. Bankr. Keg. 74. The fact that the agreement related to the conveyance of real estate was not, in Nickerson v. Baker, 5 Allen, 142, regarded as a valid objec- tion. Moreover, the agreement has been executed and the defendant has got his security, and as the court said in Holmes v. Winchester, 135 Mass. 299, 302, " can set up * * * any equities that will avail her." As already said, the money was lent and the security taken, for aught that appears, in good faith. It is not enough to avoid the conveyance, that Cyrus was insolvent when it was made, and knew himself to be so, and that the defendant had reason to believe him to be so, if the convey- ance Vv-as not made to secure an antecedent debt, or with any intention on the part of the defendant to defeat the provisions of the insolvent law, or with reason to believe that such was the purpose of Cyrus, but was given as security for a debt then incurred. It does not appear from the agreed facts that the defendant had any reason to believe that there was to be any fraud upon, or evasion of, the provisions of the insolvent law. A majority of the court think that the decree of the Superior Court should be reversed, and that, as it is con- ceded that the deeds were taken as security, a decree should be entered to that effect, allowing the assignee, if he shall so elect, to redeem within a certain time, upon paying what shall appear to be due ; otherwise. Bill to be dismissed with costs. 320 SOTJKWINE v. SUPREME LODGE, K. of P. [part i. SOURWINE V. SUPREME LODGE, KNIGHTS OF PYTHIAS. In the Appellate Court of Indl\na, 1894. [12 Indiana Appellate Court 447.] The appellants are the beneficiaries of one Jonathan Croasdale who, in 1877, was admitted to membership in the appellee's endowment rank, entering classes first and second. At this time all members paid at the same rate. In 1884 a fourth class was created in which the amounts to be paid were graduated according to age. In 1888, by amendment to the constitution, transfers from the first, second and third classes to the fourth class were permitted, upon passing a medical examination which should be properly certified and upon payment of a necessary fee "before he can take the obligation admitting him to membership." The applicant was obliged to surrender his endowment certificates held in the other classes. The age limit, fifty years, imposed upon new applicants for admission to the fourth class was by express terms not to apply to members transferring from the lower classes to the fourth class. In March, 1889, Croasdale being then a member in good standing of the first and second classes, asked to be transferred to the fourth class. He was examined by appellee's physician, found to be in perfect mental and physical health, and was unconditionally recommended by the physician. Croasdale properly forwarded to the appellee's medical examiner-in-chief his application, with the proper fees, oifering to surrender his certificates, but that officer arbitrarily disapproved the examination and peremptorily rejected the application for no other reason than the applicant's age. On March 20, 1889, and on Jan. 30, 1891, Croasdale renewed his appli- cation and was met with the same arbitrary refusal. On ^[ay 5, 1892, Croasdale died. The first and second classes had then become so depleted that they paid but trifiing sums to beneficiaries. Proper proofs were made and the appellants in this action seek to recover upon the ground that Croasdale was equitably a member of the fourth class.' Gwi.x^ J. Clearly, Croasdale possessed all the necessary qualifica- tions, complied strictly with the requirements of appellee's constitution, and was in fact entitled to bo, and under the allegations of the plead- ings, ought to have been, transferred. Appellee's position is that nevertheless he was not transferred in fact, and could not be without the approval of the medical examiner-in-chief, and for this reason his beneficiaries can not recover. It is further contended that he had, by not asserting his legal right 'This staiciiK'iit of fiicts is abridged. The part of the opinion relating the facts is omitted. CHAP. IV.] SOURWINE v. SUPREME LODGE, K. of P. 321 to the transfer and not tendering the dues, acquiesced and abandoned his right to the transfer. The constitution and by-laws of such an organization are elements of the contract of insurance. They measure and determine the member's duties and liabilities, and not only these but his rights as well. Supreme Lodge K. of P. v. Knight, 117 Ind. 489. Not only the private members, but the officers, are under obligation to conform their conduct to them. Under the averments, the action of the medical examiner-in-chief, in rejecting the application solely by reason of Croasdale's age, was in direct violation of the constitution. Croasdale's fellows in the first and second classes had been per- mitted to transfer, and thus his classes had been depleted. In so doing they and the association only exercised their legal right, but the right to follow them, was vested, by the constitution, in Croasdale. He was al- ready a member of the rank, and this right of transfer was a contract right, and a beneficial one of which the officers could not arbitrarily de- prive him. Supreme Council, etc., v. Forsinger, 325 Ind. 52; Supreme Lodge K. of P. v. Knight, supra. His position was manifestly radically different from that of one who was not a member of the organization, but was seeking admission into its ranks, as in the case of Matkin v. Knights of Honor, 82 Tex. 301. The contractual rights and obligations were already existing between him and the association. Having done everything that was to be done by him to eifectuate the transfer, and being in all things entitled to it, it did not rest in the dis- cretion of the examiner to refuse him. Had the examiner refused him because he was not, in his judgment, possessed of the proper physical qualifications, it might well be that the examiner's action, in the absence of fraud or mistake, at least, would be final and conclusive against him; but no such question is here presented. On the contrary, the disapproval is arbitrary and without cavise, solely by reason of his age, which, by the express letter of the society's law, is not a reason for rejection. Here is a manifest wrong. Yet it is asserted that although there was a wrong there is now no remedy. To so hold would be, to use a favorite phrase of Judge Elliott's, a reproach to the law. The arm of the law has not been so shortened as to leave the appellants remediless. If the application of the stricter rules of law, as formerly admin- istered, do not furnish the remedy, the more expansive and beneficent principles of equity are ample for the purpose. An eminent law writer speaks thus: "Equitable remedies, on the other hand, are distinguished by their flexibility, their unlimited variety, their adaptabilitj^ to circumstances, and the natural rules which govern their use. There is in fact no limit to their variety and application, the court of equity has the power of devising its remedy and shaping it 322 SOUKWINE v. SUPREME LODGE, K. of P. [part i. so as to fit the changing circumstances of every case and the complex relations of all the parties." 1 Pom. Eq., section 109. Again he says, at section 111 : " It has, therefore, never placed any limit to the remedies vphich it can grant; either with respect to their sub- stance, their form, or their extent ; but has always preserved the elements of flexibility and expansiveness, so that new ones may be invented or old ones modified, in order to meet the requirements of every case, and to satisfy the needs of a progressive social condition, in which new primary rights and duties are constantly arising, and new kinds of wrongs are constantly committed." While this case is one of a peculiar nature, sui generis, for which neither the counsel nor the court have found any direct precedent, the application of a familiar rule of equity furnishes, as it seems to me, a safe guide to its disposition. That this application ought to have been approved and that the trans- fer ought to have been made can not be successfully controverted, nor are these propositions denied by appellee's counsel. They assert, however, that while these things ought to have been done they were not. Equity furnishes the remedy for just exactly that state of affairs, for the very first maxim with which we meet in equity is that it " will regard that as done which in good conscience ought to be done." This principle has been applied, says the same author, " to every instance where an equitable right, with respect to the subject-matter, rests upon one person towards another: to every kind of case where an affirmative equitable duty to do some positive act devolves upon one party and a corresponding equitable right is held by another party." Pom. Eq., section 364; vide, also, sections 369 and 370. In Kentuchy. etc., Ins. Co. v. Jenlis, 5 Ind. 96, it was objected that ihere could be no recovery because no policy had issued, but the court said : " Jenks having been entitled to a policy in his lifetime, a court of equity will consider that done which should have been done," and sus- tained a decree for a satisfaction. So, also, in Woody v. Old Dominion Insurance Co., 31 Graft. 362, and Tayloe v. Merchants' Fire Insurance Co., 9 How. (U. S. R.) 390, where insurance contracts were to be, but had not been, issued, it was held that equity would enforce payment of the losses directly without there having been a previous decree for specific performance. So equity will grant relief here, althought Croasdale never in his life- time comx)ellod the transfer, by mandate, as he might have done. We do not think it lies in appellee's mouth to complain that some hardship may be imposed on it by reason of his failure to insist on his rights in a court of law before his death. For whatever hardship may arise therefrom, appellee, and not he, is responsible. Neither do we think that appellee is in a position to take any ad- vantage from the plea that by allowing this action appellants are per- CHAP. IV.] SOUKWINE V. SUPREME LODGE, K. of P. 323 mitted to reap the benefits of Croasdale's membership without his having borne the burdens. That he did not bear these burdens during the fif- teen months after the final rejection of his application for transfer was due entirely to the wrongful conduct of appellee, and can in no de- gree be ascribed to any delinquency upon his part. Whatever unpleasant results may follow from appellee's own misconduct should be borne by appellee, and can not be shifted to others who are wholly innocent. It is a well known maxim that parties are not to be permitted to take advantage of their o\x\\ wrong. In Jackson v. Northwestern, etc.. Relief Assn., 78 Wis. 463, we find a case closely analogous to the one under consideration. The membership of the deceased had there been declared forfeited, but there was, under the by-laws, a right to reinstatement on certain terms, among which was furnishing a satisfactory certificate of health. The member took the necessary steps, and mailed the application and money, with a proper certificate of health, but died before these were received at the offico of the association, which thereupon, after notice of her death, rejected the application for reinstatement. It is said by the Supreme Court, per Orton, J. : " The court instructed the jury on that subject as follows: ' That Mrs. Jackson was dead before the reinstatement and money reached Madison, if you find such to be the fact, was good cause for the disapproval of her application.' This in- struction was also erroneous. If Mrs. Jackson mailed the papers and money in proper time, according to the by-laws or the custom of the com- pany, her rights became fixed by it, and her subsequent death, before the package reached the company, could not change them. She had done all that the companj^ required of her by the notice of reinstatement." Again it is said : " The court erred also by instructing the jury that the company had the right to reject her application for reinstatement ' upon the ground that it did not consider her statements in regard to health sufficient.' " If Mrs. Jackson secured any right whatever by so responding to this last reinstatement notice of the company, then the certificate of health she sent with the other papers and the money did not depend upon how the company considered it, but upon its sufficiency in fact." Thus it is held that one may be by the courts regarded as entitled to the rights of membership although not recognized as such by the officers. By deducting from the sums due appellants the amount of dues which would have been collectible from Croasdale in the fourth class, appellee will be in the same position it would have occupied had it complied with the requirements of its own laws and made the desired transfer. Appellee's laws are, as we have said, made for the government of its officers, as well as its members. Had the officer obeyed the law, as Croasdale did, all controversy would have been avoided. After Croasdale had so fully complied with appellee's rules we do not 324 WILCOCKS v. WILCOCKS [part r. think he can be deemed to have acquiesced in its officer's wrongful con- duct and to have abandoned his legal and equitable rights merely be- cause he did not commence a mandate or make a formal tender of fourth class dues, which would have been useless in the face of appellee's con- tinued refusal to make the transfer, which was equivalent to an an- nouncement that it would not receive dues from him in that class. Our conclusion, therefore, is that the trial court erred in sustaining the demurrer to the complaint. Judgment reversed. Eeinhard, J., did not participate. Filed April 25, 1895.' H. — Equity Imputes an Intent. KIKKINGTON v. ASTEY. In Chancery, 1637. [Toihill 78.] The grandfather deviseth lands to his son to pay ten pounds per annum to the son's three daughters, the father gives two hundred pounds in marriage with one, whether the ten pounds per annum should be in- cluded in the two hundred pounds or not ; decreed it shall be included. WILCOCKS V. WILCOCKS. In Chancery, before Lord Keeper Cowper, 1706. [2 Vernon 558.]' The plaintiff's father upon his marriage covenanted to purchase lands of 2001. per ann. and to settle the same upon himself for life, and on his wife for her jointure, and to the first and other sons in tail, re- mainder to the daughters. The father, who was a freeman of the city of London, died intestate, having purchased lands of the value of 2001. per * As suggested by Judge Gavin in the principal case, Professor Pomeroy con- sidered most important the maxim — equity regards that done which ought to be * ;e Prior in Time Shall Prevail. BLAKE V. SIR EDWARD HUNGERFORD. In Chancery, defore Lord Keeper Wright, 1701. [Precedents in Chancery 158.] ' Sir Edward Hungerford, seised in right of his wife of the manor of D. procures her to join with him in a fine by way of mortgage in fee for securing 15000 /. and the equity of redemption thereof upon payment of the money is limited to Sir Edward for life, without impeachment of waste: remainder to the wife, and her heirs and assigns. Sir Edward afterwards acknowledges a statute of 500 1, to George Arnold, to whom Sir Jeremy Samhrook is administrator; then the wife dies, and Anthony Hungerford- was her sou and heir. Sir Edward Hungerford contracted tvith Anthony his son, who had no notice of the statute, to sell him his estate for life in the manor for 3000 I. and accord- ingly Anthony procures 3000 I. more to be taken up upon the mortgage, and the mortgage to be transferred to the new mortgagee, who paid ofE the old ones, and furnished the 3000 I. to Sir Edward Hungerford, and the equity of redemption is limited to Anthony, and he covenants to pay the money; and the mortgagee's covenant on payment of the money to assign to him, or as he shall direct. Then Anthony acknowledges a statute to one Mellish (who had no notice of the 500 I. statute) and after makes his will, and devises legacies to the plaintiffs and chargcth them on the said manor, and deviseth the manor itself to Sir Edward Hungerford and his heirs; and the great question was. Whether Samhrook, who had the interest of the statute acknowledged by Sir Edward, whilst he was tenant for life, or Mellish, who was Conuzee of Anthony, after his purchase of Sir Edward's estate for life, should be preferred in payment ? The Master of the Rolls decreed, that Sir Jeremy Samhrook's statute must come in after the creditors and legatees of Sir Anthony Hunger- ford; and that Mellish must come in immediately after Anthony's legacies, by virtue of Mellish's statute, Mellish having joined in the decla- ration of trust; and this decree was affirmed by my Lord Keeper, with the assistance of Mr. Justice Blencow and Lord Chief Justice Trevor. The reasons urged for it were, that though neither had the legal estate, and that between two equities que prior est tempore potior est jure, yet that must be understood of bare equities, but in this case ' /S. C. 2 Eq. Cas. Abr. 256. 330 BRACE v. DUCHESS OF MARLBOROUGH [part r. Anthony Hungerford had more than a bare equity; that the case of Smith and Christ's Hospital did not come up to this case, for there was a term standing out, to which neither party had a right; but by An- thony's purchase the whole interest is united in him, and they who had the legal interest covenanted to assign to him, and are but his trustees after payment of the mortgage money, and it differs little from the com- mon case, where a third mortgagee buys in the first mortgage in trust for himself, and Anthony may make use of his trustee's name at law, either to defend or recover, and may have an action at law against them to assign. That though Sir Edward's equity for life would have entitled him, on payment of a third part, to redeem, and the 500 /. statute was a charge ^ upon that equity, yet that is liable to be defeated by a subsequent incum- brancer without notice; but such purchaser must not be a purchaser of a bare equity only, for then the first will prevail; but Anthony is a pur- chaser of Sir Ediuard's equity, and the legal estate together, and will have the protection of the legal estate. His deed of purchase takes notice of the case, and that the mort- gage is assigned at his instance and by his procurement, and so he purchases the benefit of the legal estate, together with the equity. If a third mortgagee takes only an agreement of the first mortgagee to convey to him, the second cannot in such case compel him to assign to him, because such agreement was no more than what they might have •done without any agreement: and in this case Anthony is not entitled upon the old equity of Sir Edward, but on the new equity raised on the new mortgage; and he is an absolute purchaser of the estate subject to the mortgage, and must have the protection of it ; and to decree a convey- ance to Sir Jeremy Samhrook, would be to decree a breach of a fair and lawful covenant and agreement. BRACE V. DUCHESS OF MARLBOROUGH. In Chancery, iii:roRK Sir Joseph Jekyll, M. R., 1728. [2 Peere Williams 49L] ' In this case it appeared that a puisne incumbrancer bought in a prior mortgage, in order to unite the same to the puisne incumbrance, but it being proved there was a mortgage prior to that, the court clearly held that the puisne incumbrancer where he had not got the legal estate, or whfrf the legal estate was vested in a trustee, could there make no " Only a part of tliis case is printed here. CHAP, iv.] BERRY /'. MUTUAL INSURANCE CO. 331 advantage of his mortgage; but in all cases where the legal estate is standing out, the several incumbrances must be paid according to their priority in point of time : qui prior est in tempore, potior est in jure.' Clark v. Abbot (1741) Barnard Ch. 457, 460.' — Lord Chancellor [Hardwicke] said his opinion was. That the PlaintiflF was entitled to Relief as far as he can take that Relief within the compass of the former Decree. He said, if the Plaintiff had got the legal Estate, either in him- self or a Trustee for him, so that he could have brought an Ejectment, and put the Defendants to have been Plaintiffs here, it might indeed have deserved Consideration, whether these Defendants would have been entitled to have redeemed the present Plaintiff. But as the Plaintiff has not the legal Estate, and is forced to come into Equity, he must sub- mit to be redeemed by Anthony Abbot, who is one of the Defendants, and can put no other Terms upon his redeeming him, than such as fall within the Compass of the Decree, which has been mentioned. Qui prior est tempore, potior est ]ure is a rule that holds in Respect of equitable Rights as well as in Respect of legal ones.' In the present Case, Robert had the first equitable Right, and therefore his Mortgage must be paid ■ofi in Preference to that of the Plaintiff. BERRY V. MUTUAL INSURANCE COMPANY. In the Court of Chancery of New York, before Ch.ancellor Kent, 1817. [2 Johnson's Chancery 603.] The Chancellor. The equitable rights of the parties, in this case, must have reference to the time when the knowledge of their respective mortgages was communicated to each other, in the winter of 1814, and prior to the registry of the elder mortgage. The subsequent registry by '"Then the rule in equity is, qui prior tempore potior jure; and as all the defendants as well as the plaintiff's have but an equity, that general rule must prevail with this distinction (which yet will conchide in favor of the plaintiffs) that it holds only where none of the parties have a better right to call for the legal estate than the others; for there are cases, where it is held, that they who have such a right shall be preferred. In Brace v. Duchess of Marlborough, 2 Will. 495, the general rule only is laid down without entering into any exception or particularity therefrom. But in another case in '^'ern. such exception appears." — Lord Hardwicke in Earl of Pomfret v. Lord Wind- sor (1752) 2 Ves. 8r. 472, 486. '-S. C. 2 Eg. Ca. Ahr. G06. *"And therefore among the males the elder brother and his posterity shall 332 BERRY v. MUTUAL INSURANCE CO. [part i. the plaintiffs was of no avail. The rights of the parties had become fixed, by means of the notice, previously, mutually and concurrently given, and which notice, as to them, answered all the purpose and object of a registry. Priority of registry never prevails over a previous notice of an unregistered mortgage. (10 Johns. Rep. 461, 2.) In considering this case, then, I shall place entirely out of view the fact of the registry. The real point in the case is, which of the unregistered mortgages had the preference in equity, when the information of their existence was given and received. If there be several equitable interests affecting the same estate, they will, if the equities are otherwise equal, attach upon it, according to the periods at which they commenced; for it is a maxim of equity, as well as of law, that qui prior est tempore potior est jure. This rule has been repeatedly declared; (Clarke v. Ahhott, 2 Eq. Cas. Ahr. 606 pi. 41. Bristol V. Hunger ford, 2 Vern. 525. Symmes v. Symonds, 1 Bro. P. C. 66. Brace v. Marlborough, 2 F. Wms. 492, 495.) and we are to see if there be anything in this case to prevent the application of it. There is no fraud charged or proved upon the plaintiffs, and if they are to be postponed, notwithstanding they have the elder mortgage, it must be on the ground of culpable negligence, either in leaving the lease with the mortgagor, when they took the mortgage of his term, or in not causing their mortgage to be seasonably registered. I feel strongly dis- posed to give to these circumstances all the weight to which they can be entitled. 1. Tt is understood to have been the old rule in the English chancery, that if a person took a mortgage, and voluntarily left the title deeds with the mortgagor, he was to be postponed to a subsequent mortgagee, with- out notice, and who was in possession of the title deeds. The reason of the rule was, that, by leaving the title deeds, he enabled the mortgagor to impose upon others who have no registry to resort to, except in the counties of Yorkshire and Middlesex, and who, therefore, can only look for their security to the title deeds, and the possession of the mortgagor. The rule was so understood and declared, by Mr. Justice Burnet, in Ryall v. Bowles, (1 Ath. 168, 172. 1 Vesey, 360.) and by Mr. Justice Buller, in Goodtiile v. Morgan, (1 Term Rep. 762.) and there are de- cisions which have given great weight to the circumstance of the title deeds being in possession of the junior mortgagee. Thus, in Head v. Edgarton, (3 P. Wms. 279.) the lord chancellor said, it was hard enough upon a subsequent mortgagee, that he had lent his money upon lands subject to a prior mortgage, without notice of it, and, therefore, he could not add to his hardship, by taking away from him the title deeds, inherit land? in fee simple as heirs before any younger brother, or any de- scending from him, because (as Littleton saith) he is pluis digne dc sanke. Quod privs est dignius est, and qui prior est tempore potior est jure. Si qiiis pliircs filios hahucrit, jus propriclatis primo desccndit ad primo gcnitum, eo qiK/d inventus est primo in rcrum natura.^' Co. Litt. 14 a. CHAP. IV.] PIIILLTPS V. PHILLIPS 333 and giving them to the elder mortgagee, unless the first mortgagee paid him his money; especially as the first mortgagee, by leaving the title deeds with the mortgagor, had been, in some measure, accessory in draw- ing in the defendant to lend him money. This case, however, so far from establishing what was supposed to be the old rule of equity, evidently contradicts it, and admits the better title in the first mortgagee. So, in case of Stanhope v. Veniey, before Lord Northington, {Butler's note io Co. Litt. 290. 296. § 13.) the second mortgagee, without notice, had possession of the title deeds, but the chancellor did not give him the pref- erence on that single circumstance, but because he also had got possession of an outstanding term. There does not seem, therefore, to be the requisite evidence of the existence of any such rule in equity, as has been stated by some of the judges; and if there was, a different rule has been since established. It is now the settled English doctrine, that the mere circumstance of leaving the title deeds with the mortgagor, is not, of itself, suificient to postpone the first mortgagee, and to give the pref- erence to a second mortgagee, who takes the title deeds with his mort- gage, and without notice of the prior encumbrance. There must be fraud, or gross negligence, which amounts to it, to defeat the prior mort- gage. There must be something like a voluntary, distinct, and un- justifiable concurrence, on the part of the first mortgagee, to the mort- gagor's retaining the title deeds, before he shall be postponed. Lord Thurlow, in Tourle v. Rand, (2 Bro. 650.) said, he did not conceive of any other rule by which the first mortgagee was to be postponed, but fraud or gross negligence, and that the mere fact of not taking the title deeds was not sufficient ; and that if there were any cases to the contrary, he wished they had been named. So the rule was also understood by Chief Baron Eyre, in Thumb v. Fluitt, (2 Anst. 432.) and has since been repeatedly recognized. (Lord Eldon, in 6 Vesey, 183. 190. Sir William Grant, in 12 Vesey, 130. 1 Fonh. 153. 155. note.) It is admitted, by these same high authorities, to be just, that the mortgagee, who leaves the title deeds with the mortgagor, so as to enable him to commit a fraud, by holding himself out as absolute owner, should be postponed; but the established doctrine is, that nothing but fraud, express or implied, will postpone him. Phillips v. Phillips (1861) 4 De G. F. & J. 208, 215.— The Lord Chancellor [Westbury]. * * * I take it to be a clear proposition that every conveyance of an equitable interest is an innocent convey- ance, that is to say, the grant of a person entitled merely in equity passes only that which he is justly entitled to and no more. If, therefore, a person seised of an equitable estate (the legal estate being outstanding), makes an assurance by way of mortgage or grants an annuity, and after- wards conveys the whole estate to a purchaser, he can grant to the pur- chaser that which he has, viz., the estate subject to the mortgage or 334 RICE V. RICE [part l annuity, and no more. The subsequent grantee takes only that which is left in the grantor. Hence grantees and incumbrancers chiiming in equity take and are ranked according to the dates of their securities; and the maxim applies, ''Qui prior est tempore potior est jure." The first grantee is potior — that is, potentior. He has a better and superior — because a prior — equity. The first grantee has a right to be paid first, and it is quite immaterial whether the subsequent incumbrancers at the time when they took their securities and paid their money had notice of the first incumbrance or not. These elementary rules are recognized in the case of Brace v. Duchess of Marlborough, 2 P. Wms. 491, and they are further illustrated by the familiar doctrine of the Court as to tacking securities. It is well known that if there are three incumbrancers, and the third incumbrancer, at the time of his incum- rance and payment of his money, had no notice of the second in- cumbrance, then, if the first mortgagee or incumbrancer has the legal estate, and the third pays him off, and takes an assignment of his se- curities and a conveyance of the legal estate, he is entitled to tack his third mortgage to the first mortgage which he has acquired, and to ex- clude the intermediate incumbrancer. But this doctrine is limited to the case where the first mortgagee has the legal title, for if the first mort- gagee has not the legal title, the third does not by the transfer obtain the legal title, and the third mortgagee by payment ofl' of the first acquires no priority over the second. RICE V. RICE. In Chancery, before Sir Richard Torin Kindersley, V. C, 1853.^ [2 Drewry 73.] This was the hearing of the cause on a motion for a decree. Michael Rice, the first Defendant, purchased from George Rice, E. Moore and his wife, Lydia Rice and W. Nail and his wife, certain leasehold prop- erty. On the execution of the assignment E. Moore received his share of the purchase-money; but no money was received by the other vendors, who allowed the pajTnent to stand over for a few days on the promise of the purchaser then to pay. However, the assignment recited the pay- ment of the whole purchase-money, and the usual receipt was endorsed on it, and the other title deeds were delivered up to the purchaser. The flay following the execution of the deed, Michael Rice deposited ^Thf principal caso will, it is hoped, confirm the foHowing statement: "He was not a politician, and was recommended only hy his deep learning and sound- judgment." Dictionary JJiography, Article, Kindersley. CHAP. IV.] RICE V. RICE 335 the assignment and title deeds with the Defendants Ede and Knight, with a memorandum of deposit, to secure an advance. Rice then ab- sconded, without paying either the vendors or the equitable mortgagees. These were the principal facts of the case. The other material cir- cumstances will be found stated in the judgment. The bill was for pay- ment of the purchase-money, or for sale of the premises; and it being admitted that there was not enough to pay both the vendors and the equitable mortgagees, the question in the cause was, which ought to have priority, the vendors or the equitable mortgagees. The VicK Chancellor took time to consider, and on the 12th January delivered the following judgment :— The question to be decided in this case is, whether the equitable in- terest of the Plaintiffs in respect of the vendor's lien for unpaid purchase money, is to be preferred to the equitable interest of the Defendant Ede as equitable mortgagee. What is a rule of a Court of Equity for determining the preference as between persons having adverse equitable interests? The rule is some- times expressed in this form: — "As between persons having only equit- able interests, qui prior est tempore potior est jure." This is an in- correct statement of the rule; for that proposition is far from being universally true. In fact not only is it not universally true as between persons having only equitable interests, but it is not universally true even where their equitable interests are of precisely the same nature, and in that respect precisely equal; as in the common case of two suc- cessive assignments for valuable consideration of a reversionary interest in stock standing in the names of trustees, where the second assignee has given notice, and the first hns omitted it. Another form of stating the rule is this : — "As between persons hav- ing only equitable interests, if their equities are equal, qui prior est tempore potior est jure." This form of stating the rule is not so ob- viously incorrect as the former. And yet even this enunciation of the rule (when accurately considered) seems to me to involve a contradic- tion. For when we talk of two persons having equal or unequal equi- ties, in what sense do we use the term " equity " ? For example, when we say that A. has a better equity than B., what is meant by that ? It means only that according to those principles of right and justice which a Court of Equity recognizes and acts upon, it will prefer A. to B., and will interfere to enforce the rights of A. as against B. And therefore it is impossible (strictly speaking) that two persons should have equal equities, except in a case in which a Court of Equity would altogether refuse to lend its assistance to either party as against the other. If the Court will interfere to enforce the right of one against the other on any ground whatever, say on the ground of priority of time, how can it be said that the equities of the two are equal; i. e., in other words, how can it be said that the one has no better right to call for the interference of a Court of Equity than the other? To lay down the rule therefore with 336 RICE V. RICE [part i. perfect accuracy, I think it should be stated in some such form as this : — "As between persons having only equitable interests, if their equities are in all other respects equal, priority of time gives the better equity; or, qui prior est tempore potior est jure." I have made these observations, not of course for the purpose of a mere verbal criticism on the enunciation of a rule, but in order to as- certain and illustrate the real meaning of the rule itself. And I think the meaning is this: that in a contest between persons having only equitable interests, priority of time is the ground of preference last re- sorted to ; i. e. that a Court of Equity will not prefer the one to the other, on the mere ground of priority of time, until it finds upon an examination of their relative merits that there is no other sufficient ground of preference between them, or in other words that their equi- ties are in all other respects equal ; and that if the one has on other grounds a better equity than the other, priority of time is immaterial. In examining into the relative merits (or equities) of two parties having adverse equitable interests, the points to which the Court must direct its attention are obviously these : the nature and condition of their respective equitable interests, the circumstances and manner of their acquisition, and the whole conduct of each party with respect thereto. And in examining into these points, it must apply the test, not of any technical rule or any rule of partial application, but the same broad principles of right and justice which a Court of Equity applies univer- sally in deciding upon contested rights. Now in the present case each of the parties in controversy has nothing but an equitable interest ; the Plaintiffs' interest being a vendor's lien for unpaid purchase money, and the Defendant Ede having an equitable mortgage. Looking at these two species of equitable interests ab- stractedly, and without reference to priority of time, or possession of the title deeds, or any other special circumstances, is there anything in their respective natures or qualities which would lead to the conclusion that in natural justice the one is better, or more worthy, or more en- titled to protection than the other? Each of the two equitable interests arises out of the forbearance by the party of money due to him. There is, however, this difference between them, that the vendor's lien for unpaid purchase-money is a right created by a rule of Equity, without any special contract; the right of the equitable mortgagee is created by the special contract of the parties. I cannot say that in my opinion this constitutes any suffi- cient ground of preference; though if it makes any difference at all, I should say it is rather in favour of the eqiiitable mortgagee, inasmuch as there is no constat of the right of the vendor to his lien for unpaid purchase-money until it has been declared by a decree of a Court of Equity; whereas there is a clear constat of the equitable mortgagee's title immediately on the contract being made. But I do not see in this any sufficient grounds for holding that the equitable mortgagee has the CHAP. IV.] KICE V. EICE 337 better equity. So far, then, as relates to the nature and quality of the two equitable interests abstractedly considered, they seem to me to stand on an equal footing; and this I conceive to have been the ground of Lord Eldon's decision in Mackreth v. Symmons, 15 Ves. 329, where, in a contest between the vendor's lien for unpaid purchase-money and the right of a person who had subsequently obtained from the purchasers a mere contract for a mortgage, and nothing more, he decided in favour of the former, as being prior in point of time. If, then, the vendor's lien for unpaid purchase-money, and the right of an equitable mortgagee, by mere contract for a mortgage, are equitable interests of equal worth in respect of their abstract nature and quality, is there any thing in the special circumstances of the present case to give to the one a better equity than the other ? One special circumstance that occurs is this, that the equitable mort- gagee has the possession of the title deeds. The question therefore arises, — Between two persons having equitable interests of equal worth, does the possession of the title deeds by one of them give him the better equity? In Foster v. Blachstotie, 1 Myl. & K. 307, Sir Jo/i?? Leach, M. R., says, — "A declaration of trust of an outstanding term, accom- panied by a delivery of the deeds creating and continuing the term, gives a better equity than a mere declaration of trust to a prior incum- brancer." That is a case in which the two parties have equitable in- terests in the term of precisely the same nature, viz., a declaration of trust of the term without an actual assignment; and there the delivery of the deeds to the subsequent incumbrancer gives him the better equity. To the same effect is the decision in Stanhope v. Lord Verney, ac- cording to Lord St. Leonards' view of it, as reported in Butler's Co. Litt., Page 290 b, note (1) sect. 15, (which seems a more satisfactory report than that in 2 Eden, Page 81. Lord St. Leonards, 3 Sugd. Vend. 218, states it thus: — "In Stanhope v. Earl Verney, Lord Northington held that a declaration of trust of a term in favour of a person was tantamount to an actual assignment, unless a subsequent incumbrancer, hond fide and without notice, procured an assignment ; and that the custody of the deeds respecting the term, with the declaration of the trust of it in favour of a second incumbrancer, was equivalent to an actual assignment of it, and therefore gave him an advantage over the first incumbrancer which equity could not take from him." The same doctrine appears to be recognized by Lord Eldon in Maundrell v. M., 10 Ves. 271, where he says, "It is clear, with regard to mortgagees and in- cumbrancers, that if they do not get in the satisiied term in some sense, either taking an assignment, making the trustee a party to the instru- ment or iahing possession of the deed creating the term, that term can- not be used to protect them against any person having mesne charges or incumbrances;" implying that taking possession of the deed creating the term would confer on a subsequent incumbrancer such right of pro- tection by means of the term. We have here, then, ample authority for 338 KICE V. EICE [paut i. the proposition, or rule of equity, that as between two persons whose equitable interests are of precisely the same nature and quality, and in that respect precisely equal, the possession of the deeds gives the better equity. And, applying this rule to the present case, it appears to me that the equitable interests of the two parties being in their nature and quality of equal worth, the Defendant having possession of the deeds has the better equity; and that there is, therefore, in this case no room for the application of the maxim qui prior est tempore potior est jure, which is only applicable where the equities of the two parties are in all other respects equal. I feel all the more confidence in arriving at this conclusion, inasmuch as it is in accordance with the opinion expressed by Lord St. Leonards in his work on Vendors and Purchasers. And I have no doubt that in Machreth v. Symmons, if the equitable mortgagee had, in addition to his contract for a mortgage, obtained the title deeds from his mortgagor. Lord Eldon would have decided in his favour. I must however guard against the supposition that I mean to ex- press an opinion that the possession of title deeds will in all cases and under all circumstances give the better equity. The deeds may be in the possession of a party in such a manner and under such circum- stances as that such possession will confer no advantage whatever. For example, in Allen v. Knight, 5 Hare, 272, (affirmed by the Lord Chan- cellor and reported on appeal in 11 Jur., Page 527), the deeds had beea delivered to the first equitable mortgagee, and by some unexplained means they had got back into the possession of the mortgagor, who de- livered them to a subsequent equitable mortgagee. It was insisted by the latter that it must be presumed that it was by the fault or neglect of the first mortgagee that the deeds had got out of his possession, or that at all events the Court should direct an enquiry as to the circumstances. But the Court held that the onus lay on the second mortgagee of proving such alleged fault or neglect of the first mortgagee; and as he had failed to prove it, the Court could not presume it. nor direct an enquiry on the subject; and decreed in favour of the first mortgagee. I think it may be clearly inferred from this case that if the first mortgagee had never had the deeds delivered to him, or if it had been proved that the deeds had got back to the mortgagor through his fault or neglect, the de- cision would have been in favour of the second mortgagee who had the deeds. So the deeds may have come into the hands of a subsequent equitable mortgagee by means of an act committed by another person which constituted a breach of an express t^ust as against the person having the prior equitable interest. In such a case it would be contrary to the principles of a Court of Equity to allow the subsequent mortgagee to MVJiil himself of the injury which had been thus done to the party having the prior etiiiitable estate or interest. Indeed it appears to me that in all cases of contest between persons having (•dly, Tho' tlic rule of equity has been so settled, it is not however CHAP. IV.] BEACE V. DUCPIESS OF MAELBOROUGH 351 without great apiiearance of hardship; for still it seems reasonable that each mortgagee should be paid according to his priority, and hard to leave a second mortgagee without remedy, who might know when he lent his money, that the land was of sufficient value to pay the first mortgage, and also his own ; to be defeated of a just debt, by a matter inter alios acta, a contrivance betwixt the first mortgagee and the third, is great severity; but this has been settled upon solemn debate in a case in 2 Vent. 3i7. Marsh versus Lee, wherein that great man Sir Mathew Hale (then (^hief Baron) was called by the Lord Chancellor to his as- sistance; though this be settled, there can be no reason to carry it far- ther, to a case not within the same reason, to a case where the lender of the money does not advance it upon the immediate credit of the land ; no precedents go so far, being all of them where a puisne mortgagee buys, in a first mortgage, not where a puisne creditor by judgment, statute, or recognizance does so, as appears from the case cited of Marsh versus Lee, reported also in 1 Chan. Cases 162. So in 1 Chan. Cases 149. Higgon & aV versus Si/ddal, Callamy & aV where Si/ddal seized in fee of land, granted a rent-charge of 300 I. per annum for 2000 I. to the plaintiff, and afterwards mortgaged the premises for 1200 I. to Callamy, who bought in a judg- ment precedent to the grant of the rent-charge, there the mortgagee of the land having no notice of the rent-charge, when he lent his money upon the mortgage, the grantee of the rent-charge was decreed to have no remedy in equity against the judgment, unless he would pay both the mortgage and the judgment; tho' it is to be observed in that case, the judgment creditor, who was the first incumbrancer, could at law extend but a moiety, and out of the remaining moiety the grantee of the rent-charge might distrain for the whole rent; but it seems, that if the first incumbrance had been a statute-staple, and the third mortgagee had bought it in, he should have had the whole land, until at law the cog- nizor of the statute by a feire facias ad computandum had got the statute vacated, and that could only be on payment of the penalty; for equity would not in such case have given any assistance against a third mortgagee without notice, until he was paid his mortgage as well as statute. So note a diversity where a third mortgagee buys in a statute which is the first incumbrance, and where a statute creditor, &c. being the third incumbrancer, buys in the first mortgage; in the latter case the statute or judgment creditor, because he did not lend his money on the credit of the land, shall not unite the first mortgage to his statute or judgment; but in the former, as the land was in the view and con- templation of the lender, he shall be allowed to imite the statute to his third mortgage. So in 1 Vern. 187. Edmunds versus Povcy, there was a first, second and third mortgage without notice, and the third mort- gagee bought in a judgment prior indeed to all, but it was satisfied, and the first mortgagee bringing his bill to be relieved against this judgment. Lord Keeper North would not allow it to be so much as de- bated, but took it to be settled in the above cited case of Marsh versus 352 BEACE v. DUCHESS OF MAELBOROUGH [part i. Lee, and not then to be disputed; tho' his Lordship admitted that it was at first a very disputable case, and very strong arguments and rea- sons had been urged on the other side. Athly, If a first mortgagee lends a further sum to the mortgagor upon a statute or judgment, he shall retain against a mesne mortgagee, till both the mortgage, and statute, or judgment be paid; because it is to be presumed that he lent his money upon the statute or judgment, as knowing he had hold of the land by the mortgage, and in confideiace ventured a farther sum on a security, which, tho' it past no present in- terest in the land, yet must be admitted to be a lien thereon, 5thly, If a puisne mortgagee without notice buys in a prior judg- ment or statute, and that judgment, &c. be extended upon an elegit at a value much under the real, the mesne mortgagee shall not make the puisne mortgagee, who has got in this judgment, account otherwise, or for more than the extended value; nor will this court give any relief against the judgment or statute, but leave the mesne mortgagee to get rid of them as well as he can at law. But, Qthly, his Honor said, in all these cases it must be intended, that the puisne mortgagee, when he lent his money, had no notice of the second mortgage, statute or judgment, for that was the sole equity; and therefore in the principal case where the creditor by recognizance who bought in the first mortgage, did not in his answer deny notice, tho' such notice was not charged in the bill (which was here brought by some puisne incumbrancers for a sale, and upon bill and answers first a de- cree to state the several incumbrances, then a report, and thereupon a farther decree was obtained for the Master to state the value of the land mortgaged to each of the mortgagees) yet after all these proceed- ings for a puisne judg-ment, &c. creditor, to insist upon his having had no notice, and offering to be examined vipon interrogatories was not suf- ficient; but this denying of notice ought to appear on the pleadings, whereupon the parties might go to issue, and have an opportunity of proving notice; and therefore tho' it were true that a puisne judgment creditor buying in a first mortgage, should in such case unite it to the judgment, (which was clearly otherwise) yet here the puisne judgment creditor came too late, it being a case not to be favoured, and in a cause very much intangled, which, if such indulgencies were to be given to the puisne judgment creditor, would never have an end. CHAP. IV.] FIRE INS. COMPANY i;. WHIPP 353 NORTHERN COUNTIES OF ENGLAND FIRE INSURANCE COMPANY V.' WHIPP. In tiik Supreme Court of Judicature, Chancery Division, 1884. [Laiv Reports, 26 Chancery Division 482.] ' One Crahtree, who was manager of the Plaintiff company, executed a legal mortgage of his freehold for £4500 to the company, delivered the title deeds to them, and received the money. The deeds were placed in the company's safe, of which Crahtree had a duplicate key. Crahtree took the deeds out of the safe, mortgaged the property to Mrs. Wliipy, who liad no notice of the company's mortgage, and handed over the deeds, Crahtree went into liquidation. The liquidator commenced, in the name of the company, this action against Mrs. Whipp and Crabtree's trustee in liquidation, for foreclosure. The trustee disclaiming, the action was dismissed as against him. Mrs. Whipp put in a defence and a counterclaim, by which she asked that the securities of the Plaintiff company might be declared fraudulent and void as against her, or in the alternative that they might be postponed to her security, and that the company might be ordered to convey the property to her, subject only to such equity of redemption as it was subject to under her mortgage. From a judgment postponing its rights, the company appealed.'' 1884. April 3. The judgment of the Court (Cotton, Bowen, and Fry, L.J J.) was now delivered by Fry, L.J., who after shortly stating the facts as to the securities in the same terms as above, proceeded as follows : — The Plaintiffs being possessed of mortgages earlier in date than the mortgage of the Defendant, and, under these instruments, being the owners of the legal estate, are prima facie entitled to priority over the Defendant, but the Defendant seeks to postpone the Plaintiff's legal estate on various grounds. The main contention on the part of the Defendant, which succeeded in the Court below, was that by reason of the negligent conduct of the Plaintiffs, after they had taken their mortgages, these securities ought to be postponed to the security of the Defendant ; and this point has been argued at such length and with so extensive a reference to the authori- ties, that it appears to us necessary to consider the matter fully. The question which has thus to be investigated is — What conduct in relation to the title deeds on the part of a mortgagee ^vho has the legal estate, is sufficient to postpone such mortgagee in favour of a subsequent equitable mortgagee who has obtained the title deeds without knowl- edge of the legal mortgage? The question is not what circumstances ' /S. C. Brett's Leading Cafies in Modern Equity 249 icith note. 'The statement of facts is abridged. 354 FIEE INS. COMPANY v. WHIPP [part i. may as between two equities give priority to the one over the other, but what circumstances justify the Court in depriving a legal mortgagee of the benefit of the legal estate. It has been contended on the part of the Plaintiffs that nothing short of fraud will justify the Court in post- poning the legal estate. It has been contended by the Defendant that gross negligence Is enough. The eases which assist In answering the question thus raised will be found to fall into two categories — (1), those which relate to the conduct of the legal mortgagee in not obtaining possession of the title deeds; (2), those which relate to the conduct of the legal mortgagee in giving up or not retaining the possession of the title deeds after he has obtained them. The two classes of cases will not be found to differ in the prin- ciples by which they are to be governed, but they do differ much in the kind of fraud which is to be most naturally looked for. In the case of a person taking the legal estate, and not seeking for or obtaining the title deeds from the mortgagor, the question may arise between the legal mortgagee and either a prior or a subsequent incum- brancer or purchaser. But in such transactioii the fraud about which the Courts are most solicitous is that which is practised when a man takes the legal estate with knowledge of a prior equitable sale or incum- brance, and yet strives to place himself in a position to show that he took without notice — that kind of fraud which Lord HardwicTce ex- plained in Le Neve v. Le Neve, Amb. 436, 445, when he said: — "The taking of a legal estate after notice of a prior right, makes a person a mala fide purchaser. * * * This is a species of fraud, and dolus malus itself; for he knew the first purchaser had the clear right of the estate, and after knowing that, he takes away the right of another person by getting the legal estate." On the other hand, when the legal mortgagee has obtained the posses- sion of the title deeds and subsequently gives them up, no question can arise between him and a prior equitable owner, and no suspicion of the particular fraud which we have referred to can arise; the estate of the legal mortgagee can never be improved by any subsequent dealings with the deeds, and therefore, before the Court can find a fraudulent intent in the legal mortgagee, it must be shewn that he concurred in some project to enable the mortgagor to defraud a subsequent mortgagee, or that he was a party or privy to some other fraud in fact. The kind of fraud most to be looked for in this class of cases is such as was described by the Lord Chancellor, Lord Cowper, in the case of the Thatched House, when he said, 1 Eq. Ca. Ahr. 322: — "If a man makes a mortgage and after- wards mortgages the same estate to another, and the first mort- gagee is in combination to induce the second mortgagee to lend his money, this fraud will without doubt in equity postpone his own mort- gage. So if such mortgagee stands by and sees another lending money on the same estate without giving him notice of his first mortgage, this is such a misprision as shall forfeit his priority." CHAP. IV.] FIKE INS. COMPANY v. WHIPP 355 On the head of huv now under consideration the observations of Lord Eldon in giving judgment in the case of Evans v. Bichnell, 6 Ves. 174, are without doubt tlie leading authority. That case is remarkable for several reasons, and not the least so because it is the leading authority on a point which did not naturally arise in it. In that case a settlement had been made on the marriage of Stansell and his wife, the defendant Bicknell being the trustee of the settlement, and as such having posses- sion of the title deeds. Bicknell had delivered the deeds to Stansell, and Stansell having obtained the deeds mortgaged the property to the plain- tiffs and delivered to them the deeds. The plaintiffs alleged that Bicknell so delivered the deeds to assist Stansell in his fraud. Bicknell, on the contrary, alleged and swore that he did it to enable Stansell to obtain credit in his trade by shewing that his wife was tenant for life of the property; and the real question for decision was whether Bicknell could, on the ground of his alleged participation in Stansell's fraud, be made liable for the difference between the value of Stansell's life interest under the settlement and the amount of the plaintiff's mort- gage. In considering this point the Lord Chancellor was led to discuss the question of postponing the legal estate on the ground of conduct. It is, we think, impossible to read the judgment and not to come to the con- clusion that Lord Eldon considered that the same fraud and the same kind of negligence which would support a suit for personal relief would justify the postponement of the legal estate, and that nothing less would have that effect. Having referred to the evidence of the principal wit- ness, Lord Eldon said, 6 Ves. 189 : " I still entertain great doubt, Avhether upon such a transaction a party should be charged personally; for even upon that it amounts to no more than that a trustee delivers the deeds into the hands of a party, who has the settlement. I do not say, it is not negligence ; but it is too dangerous upon such loose evidence to hold, that it is that gross negligence, that amounts to evidence of fraud." The Lord Chancellor then turned to consider a judgment in which Mr. Justice Buller had erroneously affirmed that it Avas an established rule in equity that a second mortgagee who has the title deeds without notice should be preferred, and after adverting to his mistake observed, 6 Yes. 190 : " The doctrine at last is, that the mere circumstance of parting with the title deeds, unless there is fraud, concealment, or some such purpose, or some concurrence in such purpose, or that gross negligence, that amounts to evidence of a fraudulent intention, is not of itself a sufficient groimd to postpone the first mortgagee." The expression " gross negligence that amounts to evidence of a fraud- ulent intention " is certainly embarrassing, for negligence is the not doing of something from carelessness and want of thought or attention; whereas a fraudulent intention is a design to commit some fraud, and leads men to do or omit doing a thing not carelessly but for a purpose. But Lord Eldon seems to have meant by his words to describe the not 35G FIRE INS. COMPANY v. WIIIPP [part i. doing of something, so ordinarily done by honest men under the given circumstances, as to be really attributable not to negligence or careless- ness, but to a fraudulent intention. In short, it appears to us that in the mouth of Lord Eldon the word " negligence " was used simply to express non-feasance. In a subsequent passage of his judgment the Lord Chancellor varies the form of his language, but without throwing any fresh light on his meaning. In one place, 6 Ves. 191, he speaks of " negligence so gross as to amount to fraud," which seems like speaking of carelessness so great as to amount to design ; in another place, Ihid. 192, of " negligence so gross as to amount to constructive fraud;" and again, Ihid. 193, of a '' circumstance of so gross negligence * * * that it is conclusive evidence of fraud." In the subsequent case of Martinez v. Cooper, 2 Russ. 198, 217, Lord Eldon referred to Evans v. Bichnell, 6 Ves. 174, as having settled the principle, which he again expresses in nearly similar language. " There must be," he says, " either direct fraud, or negligence amounting to evi- dence of fraud, to induce this Court to interfere for the purpose of post- poning a party who insists on the legal benefit of his deed." All this language of Lord Eldon, though loose and difficult to construe, appears to us to point to fraud, as the necessary conclusion before the Court can deprive the owner of the legal estate of his legal rights derived from that estate. This fraud, no doubt, may be arrived at either by direct evidence or by evidence circumstantial and indirect, and it does not cease to be fraud, because the particular object in contemplation of the parties may have been a fraud in some respects different from the fraud actually ac- complished ; or because the person intended to have been defrauded may be different from the person actually defrauded; or because the original fraudulent intention had no particular person in view: See Bechett v. Cordley, 1 Bro. C. C. 353, and per Lord Eldon in Evans v. Bicknell, 6 Ves. 192. That fraud and fraud alone was the ground for postponing the legal estate was, we think, the opinion of Lord Hardivicke in Le Neve v. Le Neve, Amh. 436, 447. " Fraud, or mala fides, therefore," he said, " is the true ground on which the Court is governed in the cases of notice." That Sir William Grant entertained the same view, and considered it as the result of Evans v. Bichnell, 6 Ves. 174, is apparent from his obser- vations in Barnett v. Weston, 12 Ves. 130, 133, where he said that the old cases for postponing the first mortgagee had been shaken unless a case of fraud could be made out.* That Lord Justice James adopted the same rule is plain from what he said in the case of Rntcliffe v. Barnard, Law Rep. 6 Ch. 652. " The legal mortgagee must," ho said, " have boon guilty of fraud, or of that wilful negligence which leads the Court to conclude that he is an accomplice in the fraud " From this consensus of expression as to the true rule, some departure CHAP. IV.] FIKE INS. COMPANY v. WHIPP 357 is said by the learned counsel for the Defendant to have occurred in the language used by Lord Cranworth, L. C, in the case of Colyer v. Finch, 5 //. L. C. 905, and of Roberts v. Croft, 2 De G. k J. 1. It is enough to say that in our opinion the Lord Chancellor plainly intended in both of these cases to lay down no new principle, and his use of the expression '' negligence so gross as to be tantamount to a fraud," and his emphatic reliance on the cases of Evans v. Bicknell and Martinez v. Cooper, 2 Buss. 198, in his judgment in Colyer v. Finch are sufficient evidence of this intention. Turning now to the decisions, mostly subsequent to that of Evans v. Bicknell, which have been cited in argument, it will be found that the cases which have arisen on the conduct of the mortgagee in not obtain- ing possession of the title deeds may be ranged in the following classes : — (L) Where the legal mortgagee or purchaser has made no inquiry for the title deeds and has been postponed, either to a prior equitable estate as in ]Vorthingto7i v. Morgan, 16 Sim.. 547, or to a subsequent equitable owner who used diligence in inquiring for the title deeds, as in Clarke v. Palmer, 21 Ch. D. 124. In these cases the Courts have considered the conduct of the mortgagee in making no inquiry to be evidence of the fraudulent intent to escape notice of a prior equity, and in the latter case that a subsequent mortgagee, who was, in fact, misled by the mortgagor taking advantage of the conduct of the legal mortgagee, could as against him take advantage of the fraudulent intent. (2.) Where the legal mortgagee has made inquiry for the deeds and has received a reasonable excuse for their non-delivery, and has accord- ingly not lost his priority, as in Barnett v. Weston, 12 Ves. 130; Hewitt V. Loosemore, 9 Hare, 449; Agra Bank v. Barry, Law Rep. 7 H. L. 135. (3.) Where the legal mortgagee has received part of the deeds under a reasonable belief that he was receiving all and has accordingly not lost his priority, as in Hunt v. Elmes, 2 D. F. & J. 578, Ratcliffe v. Barnard, Law Rep. 6 Ch. 652, and Colyer v. Fitich, 5 H. L. C. 905. (4.) Where the legal mortgagee has left the deeds in the hands of the mortgagor with authority to deal with them for the purpose of his raising money on security of the estate, and he has exceeded the col- lateral instructions given to him. In these cases the legal mortgagee has been postponed, as in Perry-Herrick v. Attwood, 2 De G. & J. 21. This case was decided not on the ground that the legal mortgagees had been guilty of fraud, but on the ground that as they had left the deeds in the hands of the mortgagor for the purpose of raising money, they could not insist, as against those who in reliance on the deeds lent their money, that the mortgagor had exceeded his authority. The cases where the mortgagee having received the deeds has sub- sequently parted with them, or suffered them to fall into the hands of the mortgagor, will be found to fall into the following classes: — (1.) Wliere the title deeds have been lent by the legal mortgagee to the mortgagor upon a reasonable representation made by him as to the 358 FIEE mS. COMPANY v. WIIIPP [part i. object in borrowing them, and the legal mortgagee has retained his priority over the subsequent equities, as Peter v. Russel, or Thatched House Case, 1 Eq. Ca. Ahr. 321; Martinez v. Cooper, 2 Russ. 198. (2.) Wlaere the legal mortgagee has returned the deeds to the mort- gagor for the express purpose of raising money on them, though with the expectation that he would disclose the existence of the prior security to any second mortgagee: Briggs v. Jones, Law Rep. 10 Eq. 92. In such cases the Court has, on the ground of authority, iiostponed the legal to the equitable estate. This is the same in principle as the decision in Perry-Herrick v. Attwood, 2 De G. & J. 21. No case has been cited in which the legal mortgagee has (as by the Vice- Chancellor in this case) been postponed by reason of negligence in the custody of the deeds. The decisions on negligence at common law have been pressed on us in the present case, but it appears to us enough to observe, that the ac- tion at law for negligence imports the existence of a duty on the part of the defendant to the plaintiff, and a loss suffered as a direct consequence of the breach of such duty; and that in the present case it is impossible to find any duty undertaken by the Plaintiff company to the Defendant, Mrs. Whipp. The case was argued as if the legal owner of land owed a duty to all other of Her Majesty's subjects to keep his title deeds secure; as if title deeds were in the eye of the law analogous to fierce dogs or destructive elements, where from the nature of the thing the Courts have implied a general duty of safe custody on the part of the person having their possession or control. This view is in our opinion impliedly nega- tived by the whole course of decisions, and it is expressly repelled by the observations of the present Lord Chancellor in Agra Banh v. Barry, Law Rep. 7 H. L. 157, where he said, " It has been said in argument that investigation of title and inquiry after deeds is ' the duty ' of a pur- chaser or a mortgagee; and, no doubt, there are authorities (not involv- ing any question of registry), which do use that language. But this, if it can properly be called a duty, is not a duty owing to the possible holder of a latent title or security. It is merely the course which a man dealing hond fide in the proper and usual manner for his own interest, ought, by himself or his solicitor, to follow, with a view to his own title and his own security. If he does not follow that course, the omission of it may be a thing requiring to be accounted for or explained. It may be evidence, if it is not explained, of a design, inconsistent with hond fide dealing, to avoid knowledge of the true state of the title. What is a sufficient explanation, must always be a question to be decided with reference to the nature and circumstances of each particular case." These observations appear to us conclusive gn the point, and they at the same time suggest the conclu- sion, tlijit if in iiny case it shall appear that a prior legal mortgagee has undertaken any duty as to the custody of the deeds towards any given person, and has neglected to perform that duty with due care, and has thereby injured the person to whom the duty was owed, there the legal CHAP. IV.] FIRE INS. COMPANY v. WIIIPP 359 estate might bo postponed by reason of the negligence. But no such case appears as yet to have arisen, nor does it seem one likely often to occur. The point certainly does not arise in the present case, and we therefore give no ojjinion upon it. The authorities which we have reviewed appear to us to justify the following conclusions : — (1) That the Court will postpone the prior legal estate to a sub- sequent ecjuitable estate: (a), where the owner of the legal estate has assisted in or connived at the fraud which has led to the creation of a subsequent equitable estate, without notice of the prior legal estate; of which assistance or connivance, the omission to use ordinary care in in- quiry after or keeping title deeds may be, and in some cases has been, held to be sufficient evidence, where such conduct cannot otherwise be explained; (h), where the owner of the legal estate has constituted the mortgagor his agent with authority to raise money, and the estate thus ■created has by the fraud or misconduct of the agent been represented as being the first estate. But (2) that the Court will not postpone the prior legal estate to the subsequent equitable estate on the ground of any mere carelessness or want of prudence on the part of the legal owner. Now to apply the conclusions thus arrived at to the facts of the pres- ■ent case. That there was great carelessness in the manner in which the Plaintiff company through its directors dealt with their securities seems to us to admit of no doubt. But is that carelessness evidence of any fraud? We think that it is not. Of what fraud is it evidence? The Plaintiffs never combined with Crabtree to induce the Defendant to lend her money. They never knew that she was lending it, and stood hj. They can have had no motive to desire that their deeds should be ab- stracted and their own title clouded. Their carelessness may be called gross, but in our judgment it was carelessness likely to injure and not to benefit the Plaintiff company, and accordinglj'- has no tendency to con- vict them of fraud. Then comes the inquiry whether the Plaintiff company constituted Crabtree their agent to raise money, in which case the Defendant might I)enefit the Plaintiff company, and accordingly has no tendency to con- tention was, in our opinion, the possession by Crabtree of the key. But the Defendant has not proved the circumstances attending this fact, or the duties for the performance of which the key may have been essential, with sufficient distinctness to enable us to conclude from the possession of the key tlwit it implied an authority to deal with the securities of the Plaintiff company. The cases in which Crabtree did so deal with the securities, when carefully considered, appear to us insufficient to support the authority claimed; and the fact that Crabtree in dealing with the Defendant suppressed his mortgage to the company and dealt with her, not as agent of the company having an authority to pledge its securities, ))ut as the unencumbered owner of the property, goes, we think, far to 360 FIEE INS. COMPANY v. WIIIPP [part i. negative the suggested authority. On this point, therefore, we agree with the Vice-Chancellor. * * * Differing as we do from the learned Vice-Chancellor on the one point on which he decided against the Plaintiffs, we conclude that his judg- ment must be discharged, and that instead of it the Court must declare the Plaintiffs entitled to priority and give the usual consequent relief. The Plaintiffs must add to their security so much of the costs of the ac- tion in the Court below as would have been incurred if the action had been a simple action for foreclosure and no question of priority had bet;n raised, and the Defendant must pay to the Plaintiffs the residue of the Plaintiffs' costs in the Court below and the whole of the costs of the appeal.^ ^ "A good illustration of the effect which equity gives to the acquisition of the legal title in those eases in which the equities are equal, is afforded by Thorndike v. Hunt [(1859) 3 Dc G. & J. 563]. There a trustee under two 3ifferent settlements, having misappropriated the funds of one, replaced them by a transfer of funds belonging to the other. In a suit instituted by a cestiu que trust under the first settlement, the trustee transferred the money into court, and the money was treated as belonging to that estate, the legal title consequently resting in the accountant general for the purpose of that trust. The question was whether the cestui que trust under the second set- tlement had a right to follow this fund, and it was held that he had not, because the transfer being without notice and for value (i. e, in discharge of the debt due by the defaulting trustee) the cestui que trust under the first settlement had just as strong an equity to retain the fund as the cestui que trust under the second settlement had to follow it; and it therefore followed that the circumstances of the legal title being held by the accountant general for the former was enough to create a preference in his favor." — Bispham, Principles of Equity § 40. "This maxim [equal equities, the legal title will prevail] and the one ex- amined in the last preceding section [equal equities, first in order of time prevails] must be taken in connection, in order to constitute the enunciation of a complete principle. The first applies to a certain condition of facts; the other supplements its operation l)y applying to additional facts by which equitable rights and duties may be affected. The two are in fact counterparts of each other, and taken together they form the source of the doctrines, in their entire scope, concerning priorities, notice, and purchasers for a valuable consideration and without notice." — Pomeroy, Equity Jurisprudence § 410. And see 2 Spcnce, Jurisdiction of the Court of Chancery 720 ct seq. CHAP. IV.] NELTIIROr v. HILL 3G1 K. — Equality is Equity. NELTIIKOP V. HILL. In Chancery, before Lord Keeper Bridgman, 1669.^ [1 Cases in Chanceri/ 135.] This cause was heard first before the Lord Keeper. The case. The plaintiff Margaret and the defendant Anne were the two daughters of Smith, who having made his will eighteen years since; and Hill, ex- ecutor and curator of the children (both then in infancy) by his will gave several legacies, and then gave the residue of his personal estate to be equally divided between his two daughters, Anne and Margaret ; and if both die before marriage or full age, then he deviseth it over to an- other. Biscoe raarrieth Anne the eldest sister, and then one moiety of the estate, which was good, and in the hands of the executor, is paid to Biscoe and his wife, and Biscoe settles a jointure for this on his wife, and gives the executor a discharge. Afterwards the executor puts out the other moiety (Margaret being still in minority) on security, and part of it is lost. Then Margaret mar- ries Nelthrop, and they bring this bill against the executor and Biscoe and his wife to have a contribution towards the loss borne by them, and to have Biscoe refund. Upon the first hearing it was so decreed, unless Biscoe showed prece- dents to the contrary. Now upon farther hearing this day, (viz. 10 Jan. 1669,) before the Lord Keeper, Mr. Jus. Wild and Mr. Baron Turner, it was for Biscoe insisted, that by the marriage of Anne, her moiety became dvie, and the devise over is defeated: so that if Biscoe and his wife had brought their bill for it, the executor could not have denied payment of it, and so Biscoe hath done no default, who hath not his money till due, and he is not concerned to look any farther; and in lieu of the portion a jointure is made, and a release for the legacy is given ; and probably, if the ex- ecutor would not have paid, Anne might have lost her preferment, and the executor was by the will the curator of the children. And it was said, that by Anne's marriage first, she became first entitled. And it was insisted, that where legacies are payable at several times, and the legacy that is first due is paid when due, and there is money in the executor's hands to pay the other legacies, that if a loss fall on that afterwards, there is equity in that case to put the first paid legatee to refund. For the plaintiff it was insisted, that there was in this case no time ^ Justice Windham and Baron Turner sat with the Lord Keeper. 362 NELTIIROP v. HILL [part i. limited for payment of either; and that by the marriage of Anne, the devise over being defeated, both became due and payable, the devise be- ing indefinite, without any express time of payment; and the plaintiff Margaret's infancy ought not to turn to her prejudice; and that it was the testator's intention that they should have it equally, one as much as the other. And if Biscoe had sued, the executor might have required security to refund. And it was said and admitted by the court, that if executors pay out the assets in legacies, and afterwards debts appear, and they be forced to pay them, of which they had no notice before the legacies paid, that the executors by a bill here might force the legatees to refund.' But as to that it was answered, that case was not like to this ; for there was not enough to pay all when the legacies were paid, but here was enough when the legacies were paid to pay all, and the loss since. And for the plaintiff it was farther insisted, that a division could not be made without the plaintiff Margaret called to it; and the case of Grove and Sanson insisted on, where Banson had a conveyance and statute for his wife's legacy, and yet put to refund. But as to that case it was answered, there was not any payment, but a security, and by that he would have had a redemption ; so this payment was not paid, but executory. And the plaintiff cited the case of Picks and Vincner upon Sir Henry Martin's certificate, which was 29 Oct. 1639, and was in substance thus: that an executor may not pay one, if he hath not enough to pay all; and an executor is not bound to pay a legacy without security to refund if there be want of assets to pay either debts or legacies. Which was not, as is said, to this purpose, there being at the time when this legacy was paid, enough to pay all. Ordered the cause be set down to be re-heard originally, as well against the executor, as the legatee Biscoe and his wife. Quoore, if there be not a difference between debts and legacies thus: ^ Lord Chancellor [Nottingham]. "There is a difference between a suit for a legacy in this court, and a suit for a legacy in the Spiritual Court. If in the Spiritual Court they would compel an executor to pay a legacy with- out security to refund, there shall go a prohibition, as was resolved in the case of Kni<,'l)t niid Clarke; but in this court, though there be no provision f()7- icfunding, yet the commcn justice of this court will compel a legatee to rcfmiil. It is certain thnt a creditor shall compel a legatee to refund, and so sliall one legatee compel the other, where the assets become deficient; but wheilier the executor himself, after he has once voluntarily assented unto a legafv. shall coinpel tlie legatee to refund, is causa primae impresKionis: and it nmst be admitted there is a great difference between a voluntary assent, and where the executor was compelled to assent. We know the com- mon case, if a man voluntarily pays money to a bankrupt, after he becomes a bankrupt, it is in his own wrong, and he may be forced to pay it again; but otherwise it is, if the bankrupt recover it against him by course of law; and a small matter may amf)unt to an assent to a legacy; an assent being but a rightful act." Noel v. Robinson, 1082, 1 Vcrn. 90, 93. CHAP. IV.] ANONIMOUS 303 debts may appear to the executors, but legacies appear in the will? and qucere, if therefore executors be not bound more strictly to take security against legacies that do appear, than debts that do not?' BEOWN V. ALLEN. In Chancery, before Lord Chancellor Nottingham, 1681. [1 Vernon 31.] It was declared by the Lord Chancellor, that where a man devises a specific legacy, there though the other legacies fall short, yet the legatee must have his specific legacy entire: But where a man devises several legacies, as 1001. to one, and 501. to another, &c. there although he directs the legacy of 100?. to be paid m the first place, yet if the other legacies fall short, there the legatee of the 100?. must make a proportion- able abatement of his legacy. ANONIMOUS. In Chancery, before Lord Keeper North, 1683. [1 Vernon 162.J A. being indebted unto B. makes C. his executor. C. wastes the estate and dies, and makes D. his executor, and by his will devises several legacies. D. pays the legacies. B. exhibits a bill against D. the executor of C. for his debt due from the first testator, and against the legatees in the will of C. to compel them to refund their legacies, there not being now sufficient assets of the first testator. Decreed that the legatees should refund. ^ "Equity is the suitable adjustment of things, which in like causes seeks to administer like rights, and adjusts all things well on an equal platform, and it is termed equity, as being as it were equality, and it is employed in things, that is, in the sayings and actions of men." Bracton, Lib. 1, Cap. 4, § 5. "While the common law looked at and protected the rights of a person as a separate and distinct individual, eqiiity rather regards and maintains, as far as possible, the rights of all who are connected by any common bond of interest or of obligation." Pomeroy Equity Jurisprudence § 405. For a collection of the early cases, with notes, see Francis IMaxims in Equity 9; and see also 2 Spence Jurisdiction of the Court of Chancery ch. 8, pp. 721, 817. 364 LOKD KENNOULE v. EARL OF BEDFORD [part i. GOSLING V. DORNEY. In Chancery, before Lord Chancellor Jefferies, 1687. [1 Vernon 482.] Where land is devised to be sold for the payment of debts and legacies : the Lord Chancellor was of opinion, that the debts and legacies should be paid in equal proportion without any preference to the debts: and so it was resolved in the case of Sir John Boioles by the Lord Nottingham, that debts and legacies should be paid pari passu; but the Lord North reversed that decree, and gave preference to the debts: and so the Lord North likewise in the case of Hixon and Witham, decreed the debts to be first paid; but the Lord Chancellor declared he was not satisfied with the opinion, but would consider of it. Maytin v. Hoper (1744) Cases Temp. Hardwicke {Ridgway) 206, 209: Mr. Attorney General: If an estate is devised in trust to be sold for payment of debts and legacies, the bond and simple contract creditors shall be paid in preference to the legatees, and though this might have been decreed otherwise formerly, yet it is now the established equity of this court, which will decree the testator to do as he ought to do, by being just, before he ventures to be bountiful ; and as a former Chancellor said, a court of equity shall not decree a man to sin in his grave. To which the Lord Chancellor Hardwicke assented, and said it was now settled for debts to be paid before legacies, out of equitable assets, or where the fund was merely a trust.' LORD KENNOULE v. EARL OF BEDFORD. In Chancery, before Lord Chancellor Nottingham, 1676. [1 Cases in Chancery 295.] The case was, the earl by his last will devised his debts to be paid by his lands in D. and if those sufficed not, by sale of his lands in S. and if those sufficed not, by sale of his park ; and if that sufficed not, by sale of his lands in Waltham, and devised that the plaintiff should have 600?. ' See to the same effect, Sir Wm. Grant in Kidney v. Coussruaker, 1806, 12 Vcs. 136, 154. I CHAP. IV.] CHILD V. STEPHENS 365 per annum, during his life out of liis lands in Waltham. The trustees sold D. and S. and a great part of his lands in Waltham, and paid the debts; but the park was not sold; but the lands in Waltham not sold are not sufficient to answer the annuity which was 4,000L arrear. It was prayed that since Waltham lands were sold instead of his park, that the park might be sold to satisfy the arrears, which was ordered accordingly, and the money to be so applied. But there arose some impediment in the sale by reason of some title pretended to the park by some who were no parties to the bill; and thereupon, however, the possession of the park was decreed to the plaintiff against the trustees, and all t'^e profits of Waltham lands unsold. ANONYMUS. In Chancery, before Lord Chancellor Nottingham, 1681. [2 Ventris 353.] Note: It is the Course here, that where a Man dies in Debt, and under several Incumbrances, {viz.) Judgments, Statutes, Mortgages, &c. and the Heir at Law buys in any of them that are of the first Date, if those which have the later Securities prefer their Bill, the Incum- brances bought in shall not stand in their Way for more than the Heir really paid for them. CHILD V. STEPHENS. In Chancery, before Lord Chancellor Nottingham, 1682. [1 Vernon 101.] This case came before the Lord Chancellor, upon a point reported specially by the Master for his lordship's judgment, and was in short no more than this. Upon Mr. Child's estate there were many mortgages, judgments, and statutes, and he likewise owed several debts upon bond and simple contract, and had both by deed in his life-time and by will conveyed and settled all his lands upon trustees for payment of his debts : now some parts of his estate he had mortgaged no less than thrice over; each time for near the full value. It was now insisted, that these subseqiient mortgages were not incum- brances on the land; for all the estate in law was in the first mortgagee, and so the subsequent mortgagees had only an equity; and likewise the 366 CHILD V. STEPHENS [part i. judgments, they would not immediately affect the land then in mort- gage: and it comes within the common case, where a man settles by deed, or devises by will, lands for payment of his debts; there all creditors shall be paid alike in proportion ; whether they are creditors by bonds or on simple contract, unless their security do affect the very land so settled or devised for payment of debts; and therefore the subsequent judgments and mortgages ought only to be paid in proportion with the bond creditors and debts upon simple contract, which the Lord Chan- cellor at first conceived ought to be so done; and asked what could be said against it. ' Whereupon it was insisted, that the mortgagees had a security for their money, which a court of equity would never take from them, and being so, there could be no sale made of this estate without their consent ; and so all the debts would remain unsatisfied : for they that had the sub- sequent securities, had still, in preservation of their own interest, a right to redeem : and to set this estate in a course of redemption, would make pretty work in this case, where there were more than thirty mortgages. Eor example, ^. is a subsequent mortgagee; B. has a prior mortgage of a moiety of the lands contained in A.'s mortgage, and also several other lands. C. has a prior mortgage of the other moiety of the lands com- prised in A.'s mortgage, and also of several other lands: now has A. a plain right to redeem all the lands contained in both the mortgages of B. and C. ; and so it may be carried on through the alphabet. And after long debate, the Lord Chancellor ordered, that the real se- curities should be first satisfied,^ and then the debts by bond and simple contract to be paid in average; for that any other method in this case would become impracticable. Afterwards at another day, viz. 5th of Decemher, being the first seal, a motion was made in this case on behalf of one Penruddocke, (who had a judgment on this estate) that he might be let into a satisfaction of his judgment, before the second mortgagees, he being at law intitkd to that preference, and therefore ought not to be deprived of it in equity. The Lord Chancellor declared, he thoiight the motion reasonable ; till upon repeating the reasons above mentioned he was satisfied, it was not to be done in this case: if legal preference should be precisely observed, it would end in confusion; and so made no order upon the motion; all the other creditors having consented to the former order; but left Pen- ruddocke^to get his satisfaction, as he could by law. ^ "But otherwise it is in case of debts on judgments, that in their own natiire charf^c the lands." Wolestoncroft v. Long, 1003, 1 Cases in Ch. 32 (see case printed, supra). For a collection of the early cases on this point, see Coniyn's Digest, Chan- cery, 3 A. 4. CHAP. IV.] BERING V. EARL OF WINCIIELSEA 367 LAKE V. GIBSON. In Chancery, before Sir Joseph Jekyll, M. R., 1729 [1 Equity Cases Abridged 290.J ' The Commissioners of Sewers had sold and conveyed lands to five per- sons and their heirs, who afterwards, in order to improve and cultivate those lands, entered into articles whereby they agreed to be equally con- cerned as to profit and loss, and to advance each of them such a sum to be laid out in the manurance and improvement of the land. Sir Joseph Jekyll, M. R., held that they were tenants in common, and not joint tenants, as to the heneficial interest or right in those lands, and that the survivor should not go away with the whole; for then it might happen that some might have paid or laid out their share of the money, and others, who had laid out nothing, go away with the whole estate. And his Honor held, that when two or more purchase lands, and ad- vance the money in equal proportions, and take a conveyance to them and their heirs, that this is a joint-tenancy; that is, a purchase by them jointly of the chance of survivorship, which may happen to the one of them as well as to the other; but where the proportions of the money are not equal, and this appears in the deed itself, this makes them in the nature of partners; and however the legal estate may survive, yet the sur- vivor shall be considered but as a trustee for the others, in proportion to the sums advanced by each of them. So, if two or more make a joint purchase and afterwards one of them lays out a considerable sum of money in repairs or improvements, and dies, this shall be a lien on the land, and a trust for the representative of him who advanced it; and that in all other cases of a joint undertaking or partnership, either in trade or any other dealing, they were to be con- sidered as tenants in common, or the survivors as trustees for those who were dead. BERING V. EARL OF WINCHELSEA. In Chancery, 17S7. [1 Cor Chancery 318.] Thomas Bering, Esq. having been appointed collector of some of the duties belonging to the customs, it became necessary upon such appoint- ment for him to enter into bonds to the crown with three securities for 'This case is printed as it appears in 1 White and Tudor's Leading Cases in Equity, 4th Am. ed. Pt. 1, p. 264 (* 177). See the same citation for a valu- able note on Sir Joseph JekyU's remark concerning purchases by equal and un- equal proportions, p. 268. 368 DEKING v. EARL OF WINCHELSEA [part i. the due performance of this office. Sir Edward Bering his brother, the Earl of Winchelsea, and Sir John Rous, having agreed to become sure- ties for him, a joint and several bond was executed by Thomas Bering and Sir Edward Bering to the crown in the penalty of 4000Z., another joint and several bond by Thomas Bering and the Earl of Winchelsea, and a third by Thomas Bering and Sir John Rous in the same penalty of 4000Z., all conditioned alike for the due performance of Thomas Ber- ing's duty as collector. Mr. Bering being in arrear to the crown to the amount of 3883/. 14s., the crown put the first bond in suit against Sir Edward Bering, and judgment was obtained thereon for that sum: whereupon Sir Edward filed this bill against the Earl of Winchelsea and Sir John Rous, claiming from them a contribution towards the sum so recovered against him. The cause had been argued at length, in Michaelmas Term last, and now stood for judgment. Lord Chief Baron [Eyre] / * * * The real point is whether a contribution can be demanded between the obligors of distinct and sepa- rate obligations under the circumstances of this case. It is admitted that if there had been only one bond in which the three sureties had joined for 12,000/. there must have been a contribution amongst them to the extent of any loss sustained ; but it is said that that case proceeds on the contract and privity subsisting amongst the sureties, which this case excludes; that this case admits of the supposition that the three sureties are perfect strangers to each other, and each of them might be ignorant of the other sureties, and that it would be strange to imply any con- tract as amongst the sureties in this situation; that these are perfectly distinct undertakings without connection with each other, and it is added, that the contribution can never be eodem mode, as in the three joining in one bond for 12,000/., for there, if one of them become insol- vent, the two others would be liable to contribute in moieties to the amount of 6000/. each, whereas here it is impossible to make them con- tribute beyond the penalty of the bond. Mr. MadocTcs has stated what is decisive, if true, that nobody is liable to contribute who does not ap- pear on the face of the bond ; if this means only that there is no contract, then it comes back to the question, whether the right of contribution is founded on contract. If we take a view of the cases both in law and equity, we shall find that contribution is bottomed and fixed on general X)rinciples of justice, and does not spring from contract; though con- tract may qualify it, as in Swain v. Wall, 1 Ch. Rep. 149. In the Regis- ter, 176, b. there are two writs of contributions, one inter-cohceredes, the other inter-cofeoffatos; these are founded on the statute of Marl- hridfji; : the great object of the statute is to protect the inheritance from more suits than are necessary. Though contribution is a part of the provision of the statute, yet in Fitz. N. B. 338, there is a writ of con- ' A part of tlio opinion (whicli was printed under the maxim as to the clean hands of a suitor, supra) has been omitted. CHAP. IV.] BERING V. EARL OF WINCHELSEA 369 tribution at common law amongst tenants in common, as for a mill fall- ing to decay. In the same page Fitzherhert takes notice of contribution between co-heirs and co-feoffees, and as between co-feoffees he supposes there shall be no contribution without an agreement, and the words of the writ countenance such an idea, for the words are " ex eorum assensu," and yet this seems to contravene the express provision of the statute: as to co-heirs the statute is express ; it does not say so as to feoffees, but it gives contribution in the same manner. In Sir William Herbert's case, 3 Co. 11. h., many cases of contribution are put; and the reason given in the books is, that in equali jure the law requires equality; one shall not bear the burthen in ease of the rest, and the law is grounded in great equity. Contract is never mentioned. Now the doctrine of equality operates more effectually in this court than in a court of law. The difficulty in CoJce's Cases was how to make them contribute; they were put to their audita querela, or scire facias. In equity there is a string of cases in 1 Eq. Ca. Ahr. tit. " Contribution and average." An- other case occurs in Harg. Law Tracts on the right of the King on the prisage of wine. The King is entitled to one ton before the mast, and one ton behind, and in that case a right of contribution accrues ; for the King may take by his prerogative any two tons of wine he thinks fit, by which one man might suffer solely; but the contribution is given of course on general principles which govern all these cases. Now to come to the particular case of sureties; it is clear that one surety may compel a contribution for another, towards payment of a debt to which they are jointly bound. On what principle? Can it be necessary to resort to the circumstance of a joint bond? What, if they are jointly and severally bound? What difference will it make if they are severally bound, and by what different instruments, but for the same principal, and the same engagement ? In all these cases the sureties have a com- mon interest, and a common burthen ; they are joined by the common end and purpose of their several obligations, as much as if they were joined in one instrument, with this difference only, that the penalties will ascertain the proportion in which they are to contribute, whereas if they had joined in one bond, it must have depended on other circumstances. In this case the three sureties are all bound that Mr. Dering shall accoimt for the moneys he receives ; this is a common burthen ; all the bonds are forfeited at law; and in this court, as far as the balance due; the balance might have been so great as to have exhausted all the penalties, and then the obligee forces them all to pay ; but here the balance is something less than one of the penalties. Now who ought to pay this ? the one who is sued must pay it to the crown, as in the case of prisage, but, as between themselves, there shall be a contribution, for they are in equali jure. This is carried a great way, where they are joined in one obligation, for if one should pay the whole 12,000/., and the second were insolvent, the third shall contribute a moiety, though he certainly never meant to be liable for more than a third: this circumstance, and the possibility of one being 370 DEEING v. EAllL OF WINCHELSEA [part i. liable for the whole, if the other two should prove insolvent, suggested the mode of entering into separate bonds; but this does not vary the reason for contribution, for there is the same principal and the same engagement; all are equally liable to the obligee to the extent of the penalty of the bonds when they are not all exhausted : if, as in the com- mon case of a joint bond, no distinction is to be made, why shall not the. same rule govern here ? As in the case of average of cargo in a court of law, qui sentit commodum sentire debet et onus. This principle has a direct application here, for the charging one surety, discharges the other, and each therefore ought to contribute to the onus. In questions of average there is no contract or i^rivity in ordinary cases, but it is the result of general justice from the equality of burthen and benefit: then there is no difficulty or absurdity in making a contribution take place in this case, if not founded on contract, nor any difficulty in adjusting the proportions in which they are to contribute; for the penalties will necessarily determine this. The objection in point of form, which 1 before mentioned, is, that the. bill cannot be sustained, inasmuch as it has not charged the insolvency of the principal debtor, and that such a charge is absolutely necessary. As a question of form, it ought to have been brought on by demurrer; but in substance the insolvency of Mr. Bering may be collected from the whole proceedings, which strongly imply it; for the plaintiff appears to have submitted to the judgment, and the defendants have made their defence on other grounds. Lawson v. White, ante, 276. On the whole, therefore, we think that the plaintiff is entitled to the relief he prays, and declare that the balance due from Thomas Derin^ being admitted on all hands to amount to the sum of 3883L 14s. 8^d. the plaintiff Sir Edward Bering, and the two defendants the Earl of Winchelsea and Sir John Rous ought to contribute in equal shares to the payment of that sum, and direct that the said plaintiff and defend- ants do pay in discharge thereof each of them the sum of 1294L lis. 7d. And that on payment thereof the Attorney-General shall acknowledge satisfaction on the record of the said judgment, and that the two bonds entered into by the Earl of Winshelsea and Sir John Rous, be delivered up tf) them respectively. But this not being a very favourable case to the plaintiff, and the equity he asks being doubtful, we do not think it a case for costs.' ' " "I'lic |niiicif)I<',' observed Lord Redcsdale, 'ostablisliod in the case of Dering r. Loid Winehelsea, is universal, that the riglit and duty of contribu- tion is founded in doctrines of equity; it does not de])end upon contract. If several persons aic indebted, and f)ne makes tlie jiaynient. the creditor is bonnd in conscience, if not by contract, to give to the party paying the debt all liis remedies against tlie other debtors. The cases of average in equity rest upon tlie same principle. It would be against equity for the creditor to exact or receive payment from one, and to permit, or by his conduct to cause, the other debtors to be exempt from payment. He is bound, seldom by con- CHAP. IV.] SIBLEY V. BAKER 371 SIBLEY V. BAKER. In the Supreme Court of Micihgan, 1871. [23 Michigan 312.] Appeal ill Chancery from Eaton Circuit. This was a foreclosure bill filed by Hiram Sibley against Jennie Baker, Alonzo Baker, Nelson G. Isboll and O. E. Winchester, trustee for the Winchester Repeating Arms Company. The facts are sufficiently set forth in the opinion. COOLEY, J.' This is a foreclosure case, and the questions ^Yhich arise relate to the marshaling of securities. It seems that the mortgagor first gave a mort- gage to complainant on three parcels of land, which for our present pur- pose we may designate as parcels one, two and three. Afterwards he gave a second mortgage to complainant on parcels one and two, and still later a third mortgage to defendant Winchester on parcels two and three. The complainant foreclosed the second mortgage in chancery, making Winchester a party to the suit, and the decree w4iich he obtained directed that parcel two, for Winchester's protection, should be sold last. The sale was made as directed, and defendant Isbell became the purchaser of both parcels for a sum in the aggregate equaling the amount due upon the decree, taking them subject to the first mortgage. The present suit was afterwards brought for the foreclosure of the first mortgage, and in this it is shown that defendant Isbell has become the purchaser of complain- ant's interest in parcels one and two, but on the understanding that when sale is made on the foreclosure of this mortgage, parcel three shall be sold first. And the question now is whether the decree shall be in accordance with this understanding, or whether, on the other hand, defendant Winchester has not a right to demand that the first parcel to tract, but always in conscience, as far as he is able, to put the party paying the debt upon the same footing with those who are equally bound. That was the principle of the decision in Bering v. Lord Winchelsca; and in that case there was no evidence of contract;' Stirling v. Forrester, 3 Bligh. 59. See also Craythorne v. Swinburne, 14 Ves. 160, 165, 169; Hartley v. O'Flaherty, 1 Beat. 77, 78; Ware v. Horwood, 14 Ves. 31; Mayhew v. Crickett, and note, 2 Swanst. 189, 192; Spottisword's Case, 6 De G. Mae. & G. 345, 371, 375; Whiting V. Burke, 10 L. R. Eq. 539; 6 L. E. Ch. App. 342; where the doctrine laid down in Bering v. Lord Winchelsea has been recognized and approved of." — Note to Bering v. Lord Winchelsea in 1 White & Tudor's Leading Cases in Equity, Pt. 1, 124 (* 106) ; and see the balance of the note. * It is scarcely necessary to state that the Cooley of the principal case is Thomas M. Cooley, an ornament of the bench and bar of the United States, as well as of Michigan. KnoAvn for his text? on Torts and Taxation, it is by his classical treatise on Constitutional Limitations that his name is familiar in Eurape and an unquestioned authority in America. 372 SIBLEY v. BAKER [part i. be sold shall be parcel one. The circuit judge thought he had, and made decree to that effect. To determine whether this decree was right, we may apply some very simple tests. It m.ust be conceded that complainant while holding the first and second mortgages had a right to have the latter protected on any foreclosure of the former, so far as the land mortgaged could give protection ; the just presumption being that both parties understood when giving and taking the same that both securities were to be made effectual, and not that any rule of law was to be applied by means of which one should be made to destroy the other. But in order to protect the second mortgage, the mortgagee must have had the right, on the foreclosure of the first mortgage, to have parcel three sold first, since, as the second mortgage only covered parcels one and two, if those should be first re- sorted to for the satisfaction of the first mortgage, and sufficient for the purpose should be realized from them, the effect would be that the second mortgage would thereby be cut off, and complainant would have received no benefit whatever from parcel three having been included in his mort- gage. It will not be claimed, we suppose, that the giving of a third mortgage could have the effect to take from the holder of the others any right he had to make his securities available; and if not, then parcel three, after such mortgage was given, must have remained as it was before, the primary fund for the satisfaction of the first mortgage. And this order of sale being established for the protection of the second mortgage, a pur- chaser on the foreclosure of that mortgage must have a right to insist upon being protected in his purchase, inasmuch as the right in the mort- gagee to have the securities marshaled would be of no value to him if it did not continue for the protection of the purchaser. This being the law, we must suppose defendant Winchester to have been aware of it, and to have understood when he took his security on parcel three that it was liable to be the first resort for the satisfaction of the first mortgage. We shall reach the same conclusion by a simple application of the familiar rule, that where a mortgage is foreclosed which covers several parcels, some of which have been sold or incumbered by the mortgagor since it was given, the sale of the parcels shall be decreed to be made in the inverse order of their alienation. This rule, as between the first and second mortgages, requires parcel three to be first sold when the former is foreclosed. If those mortgages had been given to different persons, this would be conceded; but we think it can make no difference that both were given to the same person. We perceive no reason in the fact of complainant holding one mortgage which should make a second any less available to him as a legal security, than it would have been if taken by n third person; and it couhl not be equally available if a purchaser under it would not Ix^ equally protected. And in this connection it may be well to bear in mi ml I lie design and object of lhe rul(>s for tlie marshaling of CHAP. IV.] SIBLEY V. BAKER 373 securities at the instance of subsequent incumbrancers. Those rules never assume to take from a prior incumbrancer any substantial right; their purpose is to require the prior incumbrancer to enforce his just rights in such order of priority as, without loss to himself, will protect, as far as may be practicable, the subsequently acquired interests of others. But the claim of defendant Winchester, if conceded, would have deprived complainant, as owner of the second mortgage, of a substantial right, as we have already seen. The right of this defendant may also be tested by ascertaining what privilege of redemption he would have had if the first mortgage had been foreclosed under the statute, and all the parcels sold separately. Parcel three he might redeem, because he has a mortgage on the equity of re- demption in that, which has never in any way been cut off or extinguished. But he could not redeem parcel two and claim a right to be subrogated to the rights of the mortgagee therein, because his lien on the equity of redemption in that parcel has been extinguished by the foreclosure and sale under the second mortgage. Neither could he redeem and claim the like right of subrogation as to parcel one, for upon that he never had any lien, nor has he had any right in respect to it, except that it should be made use of as a fund for the protection of his mortgage. But that right was claimed by, and conceded to, him on the foreclosure of the second mortgage, and to concede it again, on the foreclosure of the first, would be inconsistent with the corresponding right on the part of the purchaser under the second mortgage, which, being first in date, is also first in equity. It is said on behalf of defendant Winchester, that he has never, until now, had an opportunity to protect his interest in parcel three, because, had he bid, at the sale under the prior foreclosure, a sum greater than the amount due on the decree, it must have been paid over to the mort- gagor, and consequently would have been of no avail in reducing the securities. But this is a mistake; any surplus on that sale must have been paid into court, and would have been applied on some one of the securities on the proper petition being presented. It is also said that defendant Isbell made his purchase under the sec- ond mortgage subject to the first. This appears to be true, but it also appears that it was part of the arrangement that when the first mortgage was foreclosed parcel three should be first sold. As an agreement to this effect was in accordance with the order established by law, and therefore wronged no one, we discover nothing to preclude its being made. The substance of the arrangement was, that he bought subject to the first mortgage, but with the understanding that when that mortgage was fore- closed, the relative rights of parties as then established by law should not be disturbed. The decree of the circuit court in chancery must be so modified as to conform to these views, and the cause must be remanded for further pro- ceedings. The costs of defendant Isbell on this appeal will be taxed in 374 STEEL V. DIXON [part i. the cause and added to the amount for which sale is to be made under the decree. The otlier Justices concurred. Lanoy v. Duke and Dutchess of Atitol (1742) 2 Ath. 444, 446. — Lord Chancellor [Hardwicke]. Now the plaintiff is a daughter, and a child, and in this court considered in the nature of a creditor for the portion. If that be so, what will be the effect of it in equity ? By the Master's state of the account, there are great arrears of the 500 I. per ann. jointure upon the wife, and likewise of the 80 I. per arm. maintenance for the plaintiff, almost a deficiency of 4000 I. which must run on as a burden upon the inheritance, and, as has been truly said, it must exhaust the inheritance, if the Dutchess of Athol should live to be very old, which, in the course of nature, she may do. The Dutchess has two funds, real and personal assets, to answer her demands, the plaintiff has only one. Is it not then the constant equity of this court that if a creditor has two funds, he shall take his satisfaction out of that fund upon which another creditor has no lien. Suppose a person, who has two real estates, mortgages both to one per- son, and afterwards only one estate to a second mortgagee, who had no notice of the first; the court, in order to relieve the second mortgagee, have directed the first to take his satisfaction out of that estate only which is not in mortgage to the second mortgagee, if that is sufficient to satisfy the first mortgage, in order to make room for the second mortgagee, even though the estates descended to two different persons. And therefore I am of opinion, that so far as will secure the plaintiff her GOOO I. fortune, she ought to be considered as a creditor, and intitled to turn the Dutchess upon the copyhold and personal estate.^ STEEL V. DIXON. Ix the Hioti Court of Justice, Chancery Di^sion, 1881. [Law Reports, 17 Chancery Division 825.] Money was advanced to one Rohinson on the security of a promissory note for £800, which Dixon, Gurney, Steel, and Chater signed as sureties. Dixon and Ourney consented to sign on condition only that special se- curity be given them, and Uohinson afterwards assigned property, his ' From anothpr part of tho opinion it appears that the estate in contro- versy here was part f)f tliat which was litigated in Frederick v. Frederick, 1721, 1 I'eere Wnis. 710, supra. CHAP. IV.] STEEL V. DIXON 375 furniture, securing their share of money payable on the note. Steel and Chnter had no knowledge of this arrangement. This deed was registered under the Bills of Sale Act. Each of the; four sureties contributed equally to take up the note at the bank. Later Dixon and Gurney sold the furniture, realizing on it about £500. This action was brought by Steel and Chater who insisted that the Defendants were bound to account to them for the money so received.' Fry, J." In my opinion the Plaintiffs are entitled to share in the benefit secured by the deed to the Defendants. In coming to that con- clusion, I base myself on the general principle applicable to co-sureties, as established by the well-known and often-cited case of Dering v. Earl of Winchelsea, 1 W. & T. L. C. 5th Ed. p. 106; 1 Cox 318, the short effect of which I take to be that, as between co-sureties, there is to be equality of the burden and of the benefit. Wlien I say equality I do not mean necessarily equality in its simplest form, but what has been sometimes called propor- tionable equality. The result of that case was expressed by Baron Alder- son in Pendlebury v. Walker, 4 Y. & C. Ex. p. 441; in these terms, that *' where the same default of the principal renders all the co-sureties re- sponsible, all are to contribute : and then the law superadds that which is not only the principle but the equitable mode of applying the princijjle, that they should all contribute equally, if each is a surety to an equal amount ; and if not equally, then proportionably to the amount for which each is a surety." I hold, therefore, that the result of Dering v. Earl of Winchelsea is to require that the ultimate burden, whatever it may be, is, as between co-sureties, to be borne by them in proportion to the shares of the debt for which they have made themselves responsible. If that be the case, it follows that each surety must bring into hotchpot every benefit which he has received in respect of the surety- ship which he undertook, and if he has received a benefit by way of indemnity from the principal debtor, it appears to me that he is bound, as between himself and his co-sureties, to bring that into hotchpot, in order that it may be ascertained what is the ultimate burden which the co-sureties have to bear, so that that ultimate burden may be distributed between them, equally or proportionably, as the case may require. In coming to that conclusion, as I do upon principle, I am much strengthened by the American authorities to which my attention has been called by Mr. Caokson. Mr. Justice Story, in his Equity Jurisprudence, asserts the principle in these terms, 11th Ed. pi. 499: " Sureties are not only entitled to contribution from each other for moneys paid in dis- ^ The statement of the case is abridged. ^ The first paragraph of the opinion of the learned judge is omitted. This is the venerable and learned judge, Sir Edward Fry, whose treatise on Specific Performance {4th edit.) is a standard authority on both sides of the Atlantic. It Avill be of interest to note that Sir Edward represented Great Britain in the recent Dogger Bank Incident between Great Britain and Kussia (1905). 376 STEEL v. DIXON [part i. charge of their joint liabilities for the principal, but they are also entitled to the benefit of all securities which have been taken by any one of them to indemnify himself against such liabilities." And in the case of Miller v. Sawyer, 30 'Vermont, 412, which was before the Court of Chancery in the State of Vermoni, the principle is stated thus by Mr. Justice Barrett, the learned Judge who delivered the judgment of the Court. Having referred to Bering ;;. Earl of Winchelsea, 30 Vermont, 417, he said: "For present purposes it is needless to cite and discuss the books and cases to any considerable extent, in which this subject is treated, and the leading principles of it applied in settling the rights and duties of parties. It may be comprehensively stated, that persons subject to a common burden stand in their relation to each other upon a com- mon ground of interest and right, and whatever relief, by way of in- demnity, is furnished to either by him for whom the burden is assumed, enures equally to the relief of all the common associates;" and in the course of his judgment he refers, among other cases, to that of Hall v. Eobinson, 8 Iredell, 56, in which Chief Justice Ruffin said : " The relief between co-sureties in equity proceeds upon the maxim that equality is equity, and that maxim is but a principle of the simplest natural justice. It is a plain corollary from it to that, when two or more embark in the common risk of being sureties for another, and one of them subse- quently obtains from the principal an indemnity or counter-security to any extent, it enures to the benefit of all. The risk and the relief ought to be co-extensive." These American decisions are, as it seems to me, exactly in point. Mr. North has urged that a diiference may arise where the security taken by one co-surety is taken by virtue of a bargain entered into be- tween him and the principal debtor at the time of his becoming surety. In my judgment that is immaterial. I think it does not affect the prin- ciple of equity to which I have referred whether the security is the result of a contract with the debtor at the time when the co-surety becomes a surety, or is voluntarily given subsequently, or arises in any other man- ner whatever. I repeat, that whatever goes to diminish the total amount of the burden must, in my judgment, be brought into hotchpot. In saying that, however, I wish to guard myself against its being supposed that this equity may not in any case be varied or departed from. Those to whose benefit the security enures may, of course, contract them- selves out of the benefit, and the question may therefore well have to be considered in each case whether there has been such a contract between the co-sureties. But a contract between one surety and the debtor is not to be confounded with a contract between the co-sureties — a contract by which one co-surety renounces his equity in favour of another. In the next place, cases may arise in which one co-surety, by reason of his default in performing his duty towards the other, may estop himself from asserting the equity which he would otherwise have had against him. Some such cases have been suggested by Mr. North in the course of his CHAP. IV.] nOLLTNGSHEAD'S CASE 377 argument. But neither of those principles appears to me to apply in the present case, because here the contract upon which the security was given was made between the debtor and two of the co-sureties, and was not com- municated at the time of their contract of suretyship to the other co- sureties, and there appears to me to be nothing in the conduct of the Plaintiffs (upon the assumption on which I am now proceeding) which can deprive them of the benefit of their right against the co-sureties. Therefore, on this assumption I hold that the Plaintiffs would be en- titled to the benefit which they claim. It remains to be considered how far the assumptions are correct. The question was then argued whether the deed of the S-ith of Febru- ary, 1879, was invalid as against the trustee in the liquidation. Fry, J., held that the deed was valid as against the trustee, and that consequently the Plaintiffs were entitled to receive £200 from the Defend- ants Dixon and Gurney. L. — Equity Aids the Vigilant. GODDAKD V. GODDARD. In Chancery, 1640. [1 Reports in Chancery 1P)9.] Bill of Review to reverse a Decree 22 Jac. the Plaintiff for Error says, the Cause was referred to Four Commissioners, and but Three certified; and also that the Lease, which the Plaintiff now insists on was not then in Issue, and the Plaintiff never consented to the Certificate. This Court upon reading the Proofs, it appeared by Depositions of two Witnesses there was an Agreement for settling the Differences, and in regard the Decree was so long since and nothing done against the same in all this Time being 16 years, this Court would not reverse the Decree. HOLLINGSHEAD'S CASE. In Chancery, before Lord Chancellor Macclesfield, 1721, [1 Peere Williams 742.] A. is partner with B. in the trade of a mercer. A. dies intestate, and C. his administrator brings a bill in equity against B. for an account of the partnership effects. Whereupon the cause is heard, and an ac- count being decreed, the master makes a report, by which it appears, that 378 HUET V. FLETCHER [part i. there is nothing due from the defendant to the plaintiff. C. takes ex- ceptions to the master's report, and then dies, and the now plaintiff having taken out administration de bonis non of A. brought his bill of revivor to revive these proceedings. The defendant pleads the statute of limitations, and that above six years had passed after the death of the first administrator and the plaintiff's taking out letters of administration, before the filing of the bill of revivor. Lord Chancellor [Macclesfield] : The statute of limitations speaks nothing of bills in equity, yet these are construed to be within it. The case of not reviving a decree which is only to account, is within all the mischief designed to be prevented, viz. to sue a man after his vouchers may have been lost, or his witnesses dead. For if the party may delay six years before he revives his bill, he may by the same reason forbear twenty-six, thirty-six or forty-six years. There can be no doubt but that if this were only a bill and answer, and the suit abated, the executor must bring his bill of revivor within six years, else the suit would be barred. Now the reason holds still as strongly in case of a decree to account, which is in nature of a judgment qtiod computet; where, if the plaintiff had died, his executor or administrator could not formerly carry it on, as now by the late statute he may; and though it may seem a material objection, that when there is a decree to account, the defendant as well as plaintiff may revive; it would however be very hard for equity to force a man to revive a suit against himself at the same time that he swears he owes nothing. Therefore let the plaintiff amend his bill, and the defendant his answer, to bring the matter more fully before the court. After which the defendant died, and one Beeclier administering to him, the plaintiff brought another bill of revivor; whereupon the defendant Beecher pleaded the statute of limitations, and coming to be argued be- fore lord chancellor Ki7ig in Mich. 1727, his lordship disallowed the plea, saying that a bill of revivor after a decree to account, was in nature of a sci. fa. and not within or barrable by the statute of limitations; though the demand seemed to be a very stale one, and not to be countenanced. HUET V. FLETCHER. In Chancery, before Lord Chancellor Hardavicke, 1739. [1 Athjns 4G7.] The fiiflior of t])o phiintiff dies intestate, the mother possesses herself of all his personal estate, the son acquiesced for 40 years after the death of his father, and upon the mother's dying, accepts of a legacy under her CHAP. IV.] SMITH V. CLAY 379 will, in value at least equal to two thirds of what his father left, and was contented for some time, but brings his bill now against the executor of the mother to account for all the personal estate of the father which came to her hands. Lord Chancellor [IIaudwicke.] These are a sort of bills that deserve the utmost discouragement from this court, to oblige an executor to ac- count for a personal estate, which, through the great length of time, he is utterly incapable of doing, besides too, a personal estate of a third person, and that did not belong to his testatrix, and where the plaintiff himself has also accepted of a legacy under the will of his mother, and acquiesced for a considerable time, and therefore to deter others from such frivolous and vexatious suits, I will dismiss the bill with costs.' Smith v. Clay (1767) 1 Bro. C. C. 640 (s. c. 2 Amh. 645).— Lord Chan- cellor Ca]\[den : This bill of review is between thirty and forty years after the decree pronounced. There is a manifest error upon the face of the record. The question upon this petition is, whether it is barred by length of time. I am of opinion it is. It would be an useless curiosity to trace backwards the origin of this proceeding. It is at this time perfectly understood. It is in nature of a writ of error, to reverse a decree, for error apparent upon the record. This is the bill of review now before me, and to this my opinion shall be confined. There are two questions. First, What period of time is a bar to a bill of review ? Second, From what time this period shall be computed? To the first question, the answer here is easy. Twenty years is the period. Fdwards v. Carrol (5 Bro. P. C. 466), is decisive, and not now open to argument. A court of equity, which is never active in relief against conscience, or ' Francis in his Maxims, p. 38, cites a number of earlier cases decided on this principle. Among them, the following may be noted: Winchcomb v. Hall (1630) 1 Rep. in Ch. 40 [after twenty years and two purchasers, the court will not examine if the ancestor was nan compos mentis] ; Coles v. Emerson (1635) id. 78 [a bond is conceived satisfied, it not being demanded in 22 years, and must be delivered up and cancelled]; Godfrey v. Thorn (1635) id. 88 [to the same efl'ect the bond here being 23 years old]; Hales v. Hales (1637) id. 105 [a mortgage held unenforceable on which no demand had been made within forty years]. 380 SMITH V. CLAY [part i. public convenience, has always refused its aid to stale demands, where the party slept upon his right and acquiesced for a great length of time. Nothing can call forth this Court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the Court is passive, and does nothing. Laches and neglect are always discountenanced, and therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this Court. Therefore, in Fitter v. Lord Macclesfield, Lord North said, rightly, that though there was no limitation to a bill of review, yet, after twenty- two years, he would not reverse a decree but upon very apparent error. " Expedit reipuhlicoe ut sit finis litium," is a maxim that has pre- vailed in this Court in all times, without the help of an act of Parliament. But, as the Court has no legislative authority, it could not properly define the time of bar, by a positive rule, to an hour, a minute, or a year; it was governed by circumstances. But as often as Parliament had limited the time of actions and reme- dies to a certain period, in legal proceedings, the Court of Chancery adopted that rule, and applied it to similar cases in equity. For when the legislature had fixed the time at law, it would have been, preposterous for equity (which, by its own proper authority, always main- tained a limitation) to countenance laches beyond the period that law had been confined to by Parliament. And therefore, in all cases where the legal right has been barred by Parliament, the equitable right to the same thing has been concluded by the same bar. Thus, the account of rents and profits, in a common case, shall not be carried beyond six years. Nor shall redemption be allowed after twenty years' possession in a mortgagee. Jenner and Tracey, 1731. (Marginal notes on 3 Will. 287.) Same thing in Belch v. Harvey (ubi supra), adding, that the statute, having given ten years after disability, that ought to be observed. By the like analogy, the House, in Edwards v. Carrol, determined that twenty years should bar a bill of review, because the statute of Wil. 3, had barred all writs of error after that period.' ''I'll is extract of the opinion is taken from a foot-note in Belt's edition of r.rnwn's Chancery Cases, p. 640. It is tliere said: "This note is from Lord Canulcn's own hand-writing in his notebook." The report in Ambler is much less satisfactory. CHAP. IV.] HOVENDEN v. ANNESLEY 381 HOVENDEN v. ANNESLEY. In the High Court of Ciiaxceuy, Iheland, before Lord Chancellor Kedesdale, 180G. [2 ScJwales and Lefroy *607.] [The facts of the case are many and very much involved, but the essential points may be thus summarized: In the 11th year of his reign. King Charles I. granted certain estates in Ireland to one Thomas Hoven- den, on whose death, 1641, they descended to his son John. John, a papist, taking part in the Rebellion, his lands were declared forfeited and they were granted by Cromwell's government to Major William Walker. Shortly after the Restoration, Walker granted all the estates to Arthur Annesley, taking back a lease for 99 years. Under Charles' declaration for the settlement of Ireland, Thomas Hovenden, son of John, the papist, made claim to a part of the estates, and the Commissioners declared in his favor. By royal grant, Annesley was later given another part. The sons of William Walker, the lessee, granted to the great grand- father of the defendant Saunders the balance of the 99-year lease. The other defendants are descended from the original Annesley to whom Walker granted. The plaintiff is descended from Thomas Hovenden, the innocent papist, who was let in after the Restoration, and claims under his will. The plaintiff seeks to have transferred to him the pos- session of the estates " on the ground of equitable rights vested in him arising out of legal rights, which he states to have belonged to those under whom he derives his title, and which legal rights have been affected by acts done by those persons, rendering the assertion of those rights im- possible at law ; and these acts of his ancestors affecting their legal rights are the foundation of the plaintiff's coming into a court of equity: for otherwise the claim would be wholly in law." The lower court dis- missed the bill.] Lord Chancellor [Redesdale] :' ^ * * The last consideration in this case is the simple effect of lapse of time; and this is very material in respect of various other cases as well as this. The old maxim of law is, vigilantibus non dormientihus inservit lex. People are not to sleep on their titles : it would be injurious to the public that they should. There must not be perpetual litigation on the subject of title; according to the maxim upon which Lord Camden acted in Smith v. Clay, 3 Bro. C. C. 639, note, expedit reipuhlicw id sit finis litium. Lands which are the sub- ject of litigation, become waste for want of cultivation, and therefore it has been a fundamental law of state policy in all countries, and at all times, that there should be some limitation of time beyond which the ' Only so much of the opinion is given as deals with the question of laches in equity. ^ 382 HOVENDEN v. ANNESLEY [part i. question of title should not be agitated. In this country the limitation has been fixed (except in writs of right, and writs depending on questions of mere title) at twenty years. But it is said that courts of equity are not within the statute of limitations. This is true in one respect; they are not within the words of the statutes, because the words apply to particular legal remedies : but they are within the spirit and meaning of the statutes, and have been always so considered. I think it is a mistake in point of language, to say that courts of equity act merely hy analogy to the statutes; they act in obedience to them. The statute of limitations, applying itself to cer- tain legal remedies, for recovering the possession of lands, for recovering of debts, &c. Equity, which in all cases follows the law, acts on legal titles, and legal demands, according to matters of conscience which arise, and which do not admit of the ordinary legal remedies : nevertheless, in thus administering justice, according to the means afforded by a court of equity, it follows the law. The true jurisdiction of courts of equity in such cases, is to carry into execution the principles of law, where the modes of remedy afforded by courts of law are not adequate to the purposes of justice, to supply a defect in the remedies afforded by courts of law. The law has appointed certain, simple modes of proceeding, which are adapted to a great variety of cases; but there are cases, under peculiar circumstances and qualifications, to which, though the law gives the right, those modes of proceeding do not apply. I do not mean to say that, in the exercise of this jurisdiction, courts of equity may not, in some instances, have gone too far; though they have been generally more strict in modern times. So, courts of law, fancying that they had the means of administering full relief, have some- times proceeded in cases which were formerly left to covirts of equity: and, at one period, this also seems to have been carried too far. I think, therefore, courts of equity are bound to yield obedience to the statute of limitations upon all legal titles and legal demands, and cannot act contrary to the spirit of its provisions. I think the statute must be taken virtually to include courts of equity; for when the legislature by statute limited the proceedings at law in certain cases, and provided no express limitations for proceedings in equity, it must be taken to have contemplated that equity followed the law, and, therefore, it must be taken to have virtually enacted in the same cases a limitation for courts of equity also. This is, I think, established in a variety of cases, which prove that courts of equity have constantly acknowledged it to be the rule by which thoy are bound. Ill Smith V. Clay, in Amhl. 045. (but of which a note is given in 3 Bro. (;. ('. 689. which I know was taken from Lord Camden's note book, where he had inserted it for the purpose of giving judgment, and the original of which I have seen in his own hand- writing. Lord Camden examined tlic whole (luestion with that accuracy which peculiarly belonged to him. CHAP. IV.] HOVENDEN v. ANNESLEY 383 The question was, whether a bill of review could be brought after twenty years : there was manifest error on the face of the record ; yet Lord Camden held it barred by length of time. A bill of review, founded on new evidence, (as, for instance, the concealment of a deed,) might give a new equitable jurisdiction ; and therefore Lord Camdi^n carefully dis- tinguished (See Amh. 647) such a case from that before him. I have looked at a great number of cases for the purpose of seeing how far this rule has been adopted at diiferent times; and I think it is im- possible not to see that courts of equity have constantly guided them- selves by this principle, that wherever the legislature has limited a period for hiw proceedings, equity will, in analogous cases, consider the equitable rights as bound by the same limitation. In Ilollingsworth's case, 1 P. Wms. 742, before Lord Macclesfield, (an able judge both in law and equity, as ever sat on the bench,) there were exceptions to the master's report ; one of the parties died ; a bill of revivor was brought, and the statute of limitations pleaded. The decision of Lord Macclesfield was in favour of the bill. " The statute of limita- tions speaks nothing of bills in equity; yet they are construed to be within it :" (that is, they are within it according to their nature.) How- ever, he conceived that in that case there were circumstances, which, had they been brought before the court, would have taken the case out of the statute, and therefore he allowed both parties to amend. Upon the amended bill, there was another plea of the statute of limitations, and the case came before Lord King, who disallowed the plea; saying that a bill of revivor, after a decree to account, was in the nature of a scire facias, and not within or barrable by the statute : so that he still proceeded on the same idea, that the statute was to be extended to courts of equity as well as courts of law, though the latter only are mentioned by the statute. In Lockey v. Lockey, Prec. Ch. 518, the same doctrine occurs. " The Lord Chancellor was clearly of opinion that where one receives the profits of an infant's estate, and, six years after his coming of age, he brings a bill for an account, the statute of limitations is a bar to such suits, as it would be to an action of account at common law." That is also a case in which Lord Macclesfield considered a court of equity barred as much as a court of law by the statute of limitations. He observed, that the trust which is supposed in a court of equity in a person who receives the profits of an infant's estate, is not a trust of that nature that the statute of limitarions does not apply to. Now, I take it that the position which has been laid down, " that trust and fraud are not within the statute," is qualified just as he qualifies it here: that is, if a trustee is in possession^ and does not execute his trust, the possession of the trustee is the posses- sion of the cestui cine trust; and if the only circumstance is, that he does not perform his trust, his possession operates nothing as a bar, because his possession is according to his title: just as in the case of a lessee for years, though he does not pay his rent for 50 years, his possession is no bar to an ejectment after the expiration of this term, because his posses- 384 HOVENDEN v. ANNESLEY [part i. sion is according to the right of the party against whom he seeks to set it up. But the question of fraud is of a very different description ; that is a case where a person who is in possession by virtue of that fraud is not, in the ordinary sense of the word, a trustee, but is to be constituted a trustee by a decree of a court of equity, founded on the fraud, and his possession in the mean time is adverse to the title of the person who im- peaches the transaction, on the ground of fraud : and the decisions seem to have been in perfect conformity to that idea. With respect to the case of Booth V. Lord Warrington, 1 Bro. Pari. Cas. 455, it has been said, on the authority of that case, that length of time will not bar in case of fraud; but that is taken up without qualification, and without a just view of that case. The decision in that case was of this description; that as fraud is a secret thing, and may remain undiscovered for a length of time, during such time the statute of limitations shall not operate; be- cause until discovery, the title to avoid it does not completely arise. That I take to be the true ground of the case of Booth v. Lord Warring- ton, where the house of lords held that the discovery of the fraud, being alleged to be at a subsequent period, and arising out of circumstances collateral, and it being established that such was the fact, a court of equity was well warranted in avoiding the transaction, notwithstanding the statute of limitations: for, pending the concealment of the fraud, the statute of limitations ought not in conscience to run; the conscience of the party being so aifected that he ought not to be allowed to avail him- self of the length of time: but after the discovery of the fact, imputed as fraud, the party has a right to avail himself of the statute; he has a right to say, " you shall not bring this matter into discussion after such a length of time, when it is only through your own neglect that you did not do so within the time limited by the statute." This is a good deal illustrated in a case of Weston v. Cartwright, in a book of no great authority. Select Cases in Chancery, Sel. Cas. in Chan- cery, 34. 2 Eq. Abr. 10 pi. 11, the point appears more from the argu- ment of counsel than from any decision that is reported. That was a case where Lord King held that notwithstanding a fraud, the court, after a length of time, ought not to investigate the subject. It was insisted that the plaintiff's demand was barred by a length of time; he answered, that it was a case of fraud, and that the statute of limitations did not apply; and Booth and Lord Warrington was mentioned : but to this the reply was, that in that case there was a charge that the fraud was discovered within six years: and payment was decreed to one, though refused to the other. Tn the South Sea Company v. Wymond.^ell. 3 P. Wms. 143, this point is discussed, and on the same ground; that in a bill impeaching accounts for fraud, it must be charged that the fraud was discovered within six years. " Tf the fraud was known and discovered above six years before exhibiting the lijll, Ihis, though a fraud, would be barred by the statute of limita- tions;" that is, the discovery of the fraud gave a jurisdiction to equity. CHAP. IV.] HOVENDEN v. ANNESLEY 385 and a new right of action accrued at that time; and, therefore, if the l^laintitf did not proceed within six years from that time, he ought to be barred. Bicknell v. Gough, 3 Atk. 538. shows that Lord IIardwicke thought the statute of limitations (if properly pleaded) might be pleaded in bar of a bill brought for relief, though not for discovery; because the very dis- covery souglit might show that the right of action had accrued within the time. Lord IIakuwkkk thought that the ijlea, if properly pleaded, would have been a good plea to a bill for relief on the ground of fraud, in con- formity to the cases determined by Lord King and Lord Macclesfield. This brings me to consider the case finally in another point of view. Supposing the plaintiff might have had relief on the ground of fraud, if he had pursued his title with due diligence, the answer is, it appears that the alleged fraud was discovered by the party at least so long ago, that in 1735 a bill was filed, (by Thomas Hovenden, the son of Walter, immediately on attaining full age, against Morley Saunders and others, impeaching the deed of 172G as fraudulent, and praying to be decreed to the possession,) imputing the fraud, and impeaching the transaction on the same ground. Therefore, the position that fraud is not within the statute, because it is a secret thing, which cannot be discovered, is not applicable to this case; for the fraud imputed to this case is represented in the bill of 1735 ; that is, it is there stated that the release was a release which the party conceived he had a right to impeach on the ground of fraud, and for that purpose to obtain from the opposite party a discovery of all the facts and circumstances demonstrating the fraud. This was known to the person claiming in 1735. Therefore, whatever right of action might have accrued on discovering any particulars of the fraud different from what were apparent in 1726, must be taken to have accrued in 1735; but was not pursued in 1794, a period of near sixty years after the first bill filed. I hold it utterly impossible for the court to act in such a case. A court of equity is not to impeach a transaction on the ground of fraud, where the fact of the alleged fraud was within the knowledge of the party 60 years before. On the contrary, I think the rule has been so laid down, that every new right of action in equity that accrues to the party, whatever it may be, must be acted upon at the utmost within 20 years. Thus, in the case of redemption of a mortgage ; if the mortgagee has been in possession for a great length of time, but has acknowledged that his possession was as mortgagee, and, therefore, liable to redemption, a right of action accrues upon that acknowledgment. But if not pur- sued within 20 years, it is like the case at law of a promise of payment beyond the six years, and non assumpsit infra sex annos pleaded: and so in every case of equitable title, (not being the case of a trustee, whose pos- session is consistent with the title of the claimant,) it must be pursued Avithin 20 years after the title accrues. This was so considered by Lord Camden, in Smith v. Clay, referring to Jenner v. Tracy, 3 P. Wms. 287. note (B) : that the same length of time should bar a redemption that 386 HOVENDEN v. ANNESLEY [part i. would bar any other equity. In Floyer v. Lovington, 1 P. Wms. 270, it is laid down by Sir Joseph Jekyll, that as the statute of limitations had in the case of lands, after 20 years' possession, barred the plaintiff of his entry or ejectment, so the court of equity, in imitation of that law, would not allow the mortgagor to redeem the mortgage after the mortgagee had been 20 years in possession. It seems to me, therefore, that the statute of limitations would of itself be a complete bar to the relief sought in this bill, as it is impossible that any new right of action could have accrued since 1735. In the case of Lord Deloraine v. Brown, 3 Bro. C. C. 633, an attempt was made to take advantage of the length of time by demurrer. The de- cision of that case, as reported by Bnown, does not convey much satis- faction to my mind; and perhaps the note which follows will account for the judgment of the court being delivered somewhat in a hurry. (It was the last case decided by Lord Thurlow, before his resignation of the seals in June, 1792.) The first judgment, as reported, is hardly intelligible, and then there is an explanation given the next day : it is, however, rather contrary to what Lord Kenyon determined at the Cockpit in Beckford V. Close, 3 Bro. C. C. 644. S. C. cited 4 Ves. jun. 476, which is cited in that case. This arose, perhaps, from Lord Tiiurlow's not having, under the peculiar circumstances in which he stood, sufficiently considered that this was matter of the law of a court of equity ; that is, a rule, which is to be considered as the law of a court of equity. Lord Kenyon held. Vide 4 Ves, jun. 476, that a demurrer to a bill, because it did not show a good title to redemption within 20 years, was a good demurrer : Wliy ? because it was the rule of the court that no redemption should be allowed after twenty years ; and therefore the party should be put to bring his case by his bill within that rule. Lord Thurlow's opinion was given in a hurry; and many cases were then pending, in which much injury might have arisen to the parties, if the judgments had not then been given: but it seems to me that Lord Kenyon's opinion is perfectly tenable on Lord Thurlow's own qualification; that is, that when a party does not by his bill bring himself within the rule of the court, the other party may by demurrer, demand judgment whether he ought to be compelled to answer. If the case of the plaintiff, as stated in the bill, will not entitle him to a decree, the judgment of the court may be required by demurrer, whether the defendant ought to be compelled to answer the bill ; that I take to be matter of the law of a court of equity, to be decided according to its rules and principles. However, it is clear that in this case of Lord Deloraine v. Brown, Lord Thurlow was anxious that his overruling the demurrer should not bo considered as deciding upon the case; and the cause never came on again. Lord Deloraine being advised that the length of time was a bar. This subject came again into consideration in Hercy v. Dinwoody, 4 Bro. C. C. 257 : that was a case to which the statute of limitations could not be said directly to apply; for there was a decree to account; it was CHAP. IV.] ELLISON V. MOFFATT 387 not proceeded upon with effect; there was laches on all sides; it was a case, therefore, in which the court was to proceed according to its dis- cretion, rather than according to any rule in analogy to the statute of limitations. Lord Alvanley, in deciding that case, was of opinion, on grounds of public policy, that he ought not to permit the account sought to be carried on, because the party who otherwise would have been en- titled to it, had been guilty of such laches as to make it impossible to take the account fairly and justly. He did not say in that case what length of time would be sufficient to bar the claim, because it was a case so encumbered, that he conceived the court was to act according to its discretion : the statute was not pleaded, and all parties had slept upon their rights. The length of time during which the plaintiff in that case had slept, was from 1756 to 1790 ; and in this case the plaintiff has slept from 1726 to 1794, and clearly with full notice from 1735. On these grounds I think it would be impossible for the court to inter- fere, though the rights of the plaintiff were ever so clear. It ought not to interfere, because I think this is a case to which the statute of limita- tions directly applies: but I think it ought not to interfere, even if the statute of limitations did not exist; and if the question depended merely, on the discretion of the court. It never can be a sound discretion in the court to give relief to a person who has slept on his rights for such a length of time : for though it is said, and truly, that the plaintiffs in this suit, and those under whom they claim, were persons embarrassed and reduced by the fraud of others, yet the court cannot act upon such cir- cumstances. If it did, there would be an end of all limitation of actions in the cases of distressed persons ; for if relief might be given after twenty years, on the ground of such distress, so might it after thirty, forty or fifty; there would be no limitation whatever, and all property would be thrown into confusion. * * * On these grounds, I think the bill ought to be dismissed. On the ques- tion of costs, I think I ought not to give costs against this unfortunate claimant, who certainly had a great colour of claim, and is, perhaps, barred only by length of time; especially as the principal defendants are persons of considerable fortune. As to Lord MuJgravc, I must give him his costs : I do not see why he is brought before the court : it is not to assist the plaintiff, but to dispute the title with the co-defendants, and to hold up the colour of his title to their prejudice. But he is clearly barred by length of time, and adverse possession, even if he had a right to claim under the title supposed by the bill. Ellison v. Moffatt (1814) 1 Johns. Ch. 46, 48. — The Chancellor [Kent] : The parties lived in the same county, and, without accounting for the delay, the plaintiff suffered a period of 26 years to elapse, from the termination of t\\Q. American war, to the time of filing his bill. The offer 388 CALHOUN v. MILLAED [part i. made by the executors being for peace, and without any recognition of the justness of the demand, and being rejected by the plaintiff, cannot afiect the question. It would not be sound discretion to overhale accounts, in favour of a party who has slept on his rights for such a length of time; especially, against the representatives of the other party, who have no knowledge of the original transactions. It is against the principles of public policy, to require an account, after the plaintiff has been guilty of so great ladies. The bill must be dismissed on the ground of the staleness of the de- mand ; but without costs. Calhoun v. Millard (1890) 121 N. Y. 69, 81.— [In 1872, the town of Andes, N. Y., issued to a railway company bonds, due in thirty years, in exchange for stock. These bonds were sold by the company, some of them coming into the hands of the defendants. For nine years a tax was levied by the town to keep up the interest on these bonds. The plaintiffs, tax- payers of the town of Andes, now bring this action asserting that the bonds are void, and asking that they be delivered up and cancelled. The action was brought within the statutory period of limitations in equitable actions.] :^ Andrews, J.' * * * It is and always has been the prac- tice of courts of equity to remain inactive where a party seeking their interference has been guilty of unreasonable laches in making his ap- plication. (Story's Eq. Jur. § 1520.) The principle is stated with great force and clearness by Lord Camden in Smith v. Clay (2 Ambl. 6-45) : " Nothing can call forth this court into activity but conscience, good faith and reasonable diligence. Where these are wanting the court is passive and does nothing. Laches and neglect are discountenanced and, therefore, from the beginning of this court, there was always a limitation to suits in this court." Courts of equity, it has been said, act not so much in analogy to, as in obedience to statutes of limitation of legal actions, because where the legal remedy is barred, the spirit of the statute bars the equitable remedy also. In the present case, the cause of action for the cancellation of the bonds was not barred by the ten years' statute applicable to equitable actions. But a period of nine years had elapsed after the bonds were issued, before the commencement of the action. But we apprehend that the period of limitation of equitable actions, fixed by the statute, is not where a purely equitable remedy is invoked, equivalent to a legislative direction that no period short of that time shall be a bar to relief in any case, or precludes the court from denying relief in accordance with equitable principles for unreasonabh? delay, although the full period of ten years has not elapsed 'New York Code Civil Proccduro § .'JSS. 'Only \i [lart of tlic o})iiii(m is printed. CHAP. IV.] CALHOTJN v. MILLAED 389 since the cause of action accrued. The ten years' limitation was pri- marily designed to shield defendants (B. & N. Y. C. 11. K. Co. Dudley, 14 N. Y. 3.52), and it must be true that a court, in the exercise of its equitable jurisdiction, could not entertain or enforce a cause of action barred by the statute, and not within any exception, acting upon any general equitable considerations. But, in enforcing purely equitable remedies, depending upon general equitable principles, unreasonable and inexcusal)lc delay is an element in the plaintiiTs case, which a court of equity always takes into consideration in exercising its discretion to grant or refuse relief, and is not a mere collateral incident. Where there is a remedy at law, whereby the plaintiff can prosecute or defend his legal right, the refusal of relief leaves the parties where they were. If there are special circumstances which may change the situation of the iilain- tiff to his injury, unless the equitable remedy is interposed, this fact may be considered. But the right of the court to deny relief upon equitable grounds, for long delay, although short of the statute period of limitation, is in the nature of a defense, and is not, we think, taken away by the statute. There may be a well-founded distinction between the case of an application for an equitable remedy in aid of, or to enforce a legal right not barred by the statute, and the case where an exclusively equitable remedy is sought, such as to restrain proceedings at law, or upon the prin- ciple quia timet, to deprive an adversary of the muniment of his alleged legal right, which he inequitablj^ retains. In cases of the latter class, long delay or acquiescence, although short of the statute period for the limita- tion of equitable actions, may be a ground for refusing relief. (Pom. Eq. Jur. § 817.) The cancellation of securities is a purely equitable remedy, and cannot be claimed as an absolute right, nor is it applied for, or awarded in aid of a legal right or title. We conclude, therefore, that it was within the power of the court to dismiss the complaint, so far as relief was sought for a cancellation of the bonds, on the ground of delay in bringing the action. The circum- stances justified the conclusion on this branch of the case. The town and the taxpayers permitted the bonds to be dealt with and taken by savings banks and others for nearly ten years, not only without, so far as appears, a word of warning or protest, but by affirmative acts of recognition, en- couraged investment therein as safe and valid securities. The bonds, resting on the adjudication of the county judge, were apparently valid. The legislature has still the power to ratify them and make them valid obligations of the town. (Williams v. Town of Duanesburgh, 66 N. Y. 129; Horton v. Town of Thompson, 71 id. 513; Rogers v. Stephens, 86 id. 623.) They are now in the hands of hona fide holders, that is, of per- sons who have paid value for them without notice. The fact that if the plaintiffs are defeated here, the bonds may be sued upon and enforced in another jurisdiction, constitutes no equitable reason for maintaining the action. (Town of Venice v. Woodruff, supra.y 'And see Blakevi\ Gale, 1885, L. R. 31 Ch. Div. 196. 390 GEEGORY v. GREGORY [part i. GREGORY V. GREGORY. In Chancery, before Sir William Grant, 1815. ^Cooper's Chancery Cases tempore Eldon 201.] William Gregory by Will duly executed, dated February 11, 1778, devised his freehold Estate in Shalden, subject to an Annuity of £10, to William Gregory his Son, and his freehold Estates in Grewell and Upnately (subject to an Annuity of £20, to William Hornier and Jane his Wife for their Lives,) to his Son James Gregory and Theophila his Wife and his Friends Lyon and Cross and their Heirs, in Trust to receive the Rents and Profits until the youngest Child of James Gregory attained 21, and then as to the said Estate in Shalden, to sell and dispose thereof, and divide the Money among the then surviving Children of James Gregory and the Children of Testator's Son John Gregory deceased; and as to the Estates at Grewell and Upnately, to James Gregory for Life, and after his Decease the same to be also sold, and the Money to be equally divided amongst the said Testator's said Grand-children. James Gregory as acting Trustee entered into the Possession of the said Estates, and continued so till his Death in 1793. Li July 1793, shortly before his Death, James Gregory purchased of the three Children of John Gregory who were then all of Age their Shares and Interests under the said Will of their Grand-father at the Price of £250 each, being £750 for the whole, and by Indentures of Lease and Release dated July 11 and 12, 1793, in Consideration of £750, they conveyed their Estate and Interests in said Testator's real Estates to James Gregory for Life, and after his Decease to the Defendants in Fee who were James Gregory's Children. James Gregory dying on December 10, 1793, the Defendants took Possession of the said Estates. The Bill filed by two of John Gregory's Children and the Representa- tive of the third, charged that the Consideration for the said Conveyance was grossly inadequate, that the Plaintiffs were ignorant at the Time of the Value of their Interests, that James Gregory was at the Period in Question dangerously ill and died soon after, that the Plaintiffs were in indigent Circumstances, and that Advantage was taken of them. The Prayer of the Bill was that the said Conveyance might be declared void and set aside. It was proved on the Part of the Plaintiffs by Hanlcin a Surveyor that the whole of the said Estates were in 1793 worth £4800, and are now worth £0210. Another Witness confirmed the said Valuation; James Grr(ion/ was also proved at the Date of the said Transaction to have been in ill I leal til, having swoln Legs and a Complaint in his Chest, and that he iicvr'f recovered. Several Witnesses deposed to the Circumstances of John Gregory's Sons in July 1793, as being indigent, one being a working CHAP. IV.] GREG OK Y v. GREGORY 391 Wateh-fiuishor, earning Ten and Sixpence to Twelve and Sixpence per Week, and another a Barber and Ilair-dresser in a State of Poverty with three Children, and who had since gone to Sea ; and that the Husband of the other Plaintiff who was the third Son, and is since deceased, was also in 1793 in the same Trade of a Barber and Ilair-dresser, and his Wife obliged to take in Washing. The Mastkr of the Rolls. There are two Questions in this Case, 1st. Wliether the Plaintiffs had originally a Ground for setting aside this Conveyance ; and, 2dly. Whether the Lapse of Time which has taken Place is not a sufficient Bar. Now I think that if this Bill had been re- cently filed, the Plaintiffs would have had a Right to have had the Sale set aside. James Gregory the Purchaser was the acting Trustee from the Y'ear 1778 to the Year 1793, and must therefore have acquired a complete Knowledge of the Situation and Value of the Estates. It is true the Bargain is made for the Benefit of himself and his Children. But tl.c whole Transaction was managed by him only. He chooses that the Form of Transfer shall be to himself and his Children. In Principle it must be the same, whether the Estates were purchased by him for himself and his Children, or for himself alone; and the Danger must be as great to permit a Trustee to purchase in the Name of himself and his Children, as in his own Name. It is clear that he was not discharged, at the Time of his Purchase from his Situation of Trustee. As to Inadequacy of Price, one listens with great Reluctance to Evidence upon that Subject given, after a great Distance of Time from the Date of the Transaction. It is difficult for Surveyors afterwards to say what was then the Value of an Estate. It is however pretty clearly made out that there was Inadequacy of Price in this Case. If therefore the Purchase had been recent, I am of Opinion that it ought to have been set aside. Then as to the Length of Time which has elapsed, I do not see any Evidence of Fraud or Circum- vention in this Case. Can it then be said that there is no Distance of Time at which Circumstances originally entitling a Party to Relief may be considered as waved or abandoned ? Certainly there may. It is only a Rule of Equity, that a Trustee shall not purchase. In all the Cases in which Length of Time has not been allowed to operate against the Title to Relief, it has been shewn that there has been a Continuance of the Circumstances under which the Transaction first took Place, as of the Distress of the Parties, or of the improper Influence used, or of some other Circumstance. Here the Parties were independent of the Pur- chaser, or of his Bounty. They had also the Opportunity of objecting early to the Sale. The only Circumstance alleged in Answer to this is their Poverty, which is proved to have been the Fact at the Time of the Purchase. But the Evidence as to that stops at the year 1793, and does not in the least shew any Continuance of Distress. Can it then be said that eighteen Years which have since elapsed can go for Nothing? In Bonny v. Ridgard, a MS. Case cited by the Master of the Rolls, in Hill V. Simpson, 7 Ves. 1(37, a Case before Lord Kent/on, he dismissed the Bill 392 UNITED STATES v. KIEKPATKICK [part i. merely upon the Lapse of Time, though he thought that it was a Trans- action in which if recent the Court would have granted Relief. There would be no Security for Men's Rights if it were otherwise. Upon the Ground of Length of Time therefore, the Bill in this Case must be dis- missed; but it being upon that Ground only, it must be dismissed without Costs.^ UNITED STATES v. KIRKPATRICK. In the Supreme Court of the United States^ 1824, [9 Whealon 720.] In 1813, one S. M. Reed was appointed a collector of direct taxes and internal revenue. The defendants were sureties in his official bond, con- ditioned for the true and faithful performance of the duties of the office. One of these diities was the filing of quarterly reports with the Comp- troller of the Treasury, and if such reports were not filed, the latter official was bound by law immediately to issue warrants of distress against the negligent officer. From 1814 to 1818, Reed did not properly report and the distress warrants Avere not issued against him. His sureties being now sued on the bond, they set up the laches of the govern- ment." Mr. Justice Story' delivered the opinion of the court.* Then, as to the point of laches, we are of opinion, that the charge of the court below, which supposes that laches will discharge the bond, cannot be maintained as law. The general principle is, that laches is not imputable to the government; and this maxim is founded, not in the notion of extraordinary prerogative, but upon a great public policy. The government can transact its business only through its agents; and its fiscal operations are so various, and its agencies so numerous and scat- ^ "Then as to trusts being an cxce])tion to the statute of limitations: The rule liolds only as between trustees and cestui que trusts. It is true that a cestui que cannot set it up against his cestui que trust: but this is merely the case of a trustee by implication, and as such affected by an equity; but that equity must be pursued within some reasonable time. Both courts of law and equity preserve an analogy to the statute of limitations." Per Lord Com- missioner AsnuRST in Townshend v. Townshend, 1783, 1 Bro. C. C. 550, 554. ^ A substituted statement of facts. '"The writings of Story arc cited as authority in Westminster Hall, and Lord Campiikm., in iilluding to them in a debate in the House of T^ords, s])oke of their author as 'greater than any law writer of which England could boast since the (lays of Blackstone.' " — Speech on motion of thanks to Lord Asiiburton, 7th Aj.r. 1847. M)iily 80 much of tlic opinion as relates to the laches of the government is given. CHAP. iv.J UNITED STATES v. KIEKPATKICK 393 tered, that the utmost vigilance would not save the public from the most serious losses, if the doctrine of laches can be applied to its transactions. It would, in effect, work a repeal of all its securities. On the other hand, the mischiefs to the agents and their sureties would be scarcely less tolerable. For if, where the laws, as in the present instance, require quarterly accounts and settlements, a mere omission to account is to be deemed a breach of the bond, for which a suit must be immediately brought, upon the peril of loss from imputed ladies; the collector and their sureties would be oppressed with the most expensive and vexatious litigation; and their whole real estate, which by law is subjected to a lien, upon the commencement of a suit, would be perpetually embarrassed in its transfers. This consideration of public or private inconvenience, is not to overrule the settled principles of law, but it is certainly entitled to great weight, where a new doctrine is to be promulgated. It is ad- mitted, that mere laches, unaccompanied with fraud, forms no discharge of a contract of this nature, between private individuals. Such is the clear result of the authorities. Why, then, should a more rigid principle be applied to the government ? a principle which is at war with the general indulgence allowed to its rights, which are ordinarily protected from the bars arising from length of time and negligence? It is said, that the laws require, that settlements should be made at short and stated periods ; and that the sureties have a right to look to this as their security. But these provisions of the law are created by the gov- ernment for its own security and protection, and to regulate the conduct of its own oificers. They are merely directory to such officers, and consti- tute no part of the contract with the surety. The surety may place con- fidence in the agents of the government, and rely on their fidelity in office ; but he has of this the same means of judgment as the government itself; and the latter does not undertake to guaranty such fidelity. No case has been cited at the bar, in support of the doctrine, except that of People V. Jansen, 7 Johns. 332. In respect to that case, it may be observed, that it is distinguishable from the present in some of its lead- ing circumstances. But if it were not, we are not prepared to yield to its authority. It is encountered by other authorities, which have been cited at the bar ; and the total silence in the English books, in a case of so frequent occurrence, affords strong reason to believe, that it never has been supposed, that laches would be fatal in the case of the government, where it would not affect private persons. Without going more at large into this question, we are of opinion, that the mere laches of the public officers constitutes no ground of discharge, in the present case.^ '"These two cases [the principal case and U. 8. v. Vatizandt (182fi) 11 Wheat. 184] seem to fix the principle, that the laches of the officers of the government, however gross, do not of themselves discharge the sureties in an official bond, from the obligation it creates; as firmly as the decisions of this court can fix it." Per Chief Justice Marshall in Dox v. Postmaster-Gen- eral, 1828, 1 Peters 318, 326. 394- ALLFREY v. ALLFREY [part i. ALLFREY v. ALLFREY. In Chancery, before Lord Gotten ham, 1849. [1 Macnaughten and Gordon 87.] The Lord Chancellor [Cottenham] :' . . . Now in the present case there is no question about the fraud. It is as clear a case of fraud almost as can be stated; and without going through any great number of the instances of fraud, the one with regard to the stock is perfectly con- clusive. In the first place, what is it that constitutes the approval of the dealing with the stock? It is the signing of the memorandum, in the handwriting it is true of the Plaintiff, but it is quite obvious that it must have been done under the dictation of the party taking the benefit of that memorandum. The Plaintiff signs a memorandum, which states that he had had a satisfactory investigation of the account, and of the admin- istration account of the effects of his parent, both parties claiming under the parent ; but, the uncle having obtained administration, it must never be forgotten, under a false oath, under a most distinct, direct, and most inexcusable perjury, because there could be no misapprehension. The intestate having left a wife and children, his brother goes to the Ecclesiastical Court, and swears that he is the only next of kin, or the nearest next of kin, which entirely excludes all the family, his nephews and nieces, of whose existence of course he must have known; and he, deliberately swearing that there were no such persons in existence, obtains administration of the father's estate. A more distinct and palpable perjury cannot be stated; and that is the commencement of the transactions which have led to this litigation. Now, what the Defendants set up as a bar to the Plaintiff's relief in asking for an account of his father's estate, is, that he, the youngest son, not long after he became of age — about two years after he became of age — signed a memorandum, stating that he had had a satisfactory investigation of the account, and of the administration account of the effects of his parent. Now, it is that very account which contains the fraud. Then, according to the facts as they stand, what is it that constitutes a settlement, and where is the bar to the Plaintiff, to prevent him from having the relief which he prays? Is the statement true? Is that a satisfactory account? Could he have had a satisfactory investigation of that account, or could he have had a satisfactory investigation of the account of the administration of the effects of his parent? Why, this one fact — and one fact is quite sufficient for the present puri)oso — ai)i)ears, in regard to that account, coupled now Avitli th<' admitted fact, wliicli is not to be found in that account, that the ' There have b(?en oniitlcd the statciiient of facts (sufficient appearing in the oi)inion; and a part of the opinion which discusses tlie difference between a decree for an open account generally (whicli tlie court here allows) and a decree to surcharge and falsify. CHAP. IV.] ALLFREY v. ALLFREY 395 father left a sum of 9100Z., 3?. per cent, stock. It is now not In dispute : it is either admitted, or so proved that no contest is raised at the bar on the subject, that, in the year 1802, his brother, having so obtained adminis- tration, sold out 4000L of that stock, and had the rest transferred into his own name. Of that transaction not a vestige is to be found in the ac- count of which this young man states that he had had a satisfactory investigation; but entries are made in it, in the year 1808, six years after this transaction, as if the stock had been then sold, and other stock pur- chased. Now the plaintiff knew nothing, and still knows nothing of these entries, except so far as they appear in the account. He has been de- sirous of ascertaining what the real transaction was, and has applied to the bank for that purpose. The bank returns the obvious answer, that, it being the private account of the uncle, they are not in the habit of informing others of the state of such an account, without the leave of the party whose account it is, and that leave they have not been able to ob- tain. We therefore have these facts; that there was a sale by the uncle of 9100Z. stock, or a transfer to himself, which is the same thing, of that portion of the intestate's estate in the year 1802 ; that no entry was made in the account of that transaction at the time when it took place. The account, therefore, is false in that particular. There is an omission, a wilful and culpable omission, at that time ; and in the year 1808, there is an entry inconsistent with the facts as they really occurred, because it represents the stock so sold or transferred in 1802 as remaining in 1808. So far we know it to be false, because it is necessarily false from the fact which is proved as to the transaction in 1802. Wliether any one stock was bought, when it was alleged to have been bought, or what the trans- actions were with regard to that stock, is not before the Court, by the interposition of those who now represent the uncle's estate. We have from this account an omission of what took place in 1802, and a false entry in 1808, — a misrepresentation, a falsification of the real trans- action, — and therefore a fraudulent statement of account, of which the "uncle gets the nephew to sign a memorandum, that he had had a satis- factory investigation, as well as of the administration account of the parent's estate. Now, then, this memorandum, or rather this account, so proved to be false, so proved to have been obtained by misrepresentation and fraud, is of necessity set aside; and it is set aside on the well estab- lished fact of a fraud having been practiced by this personal representa- tive, also standing in the place of a parent, because he had placed himself in the position of one standing in loco parentis with regard to this family. He had acted as their uncle, and in many respects had acted kindly, but so far disqualified himself in settling the account, that, as between himself and them, he had assumed the character of a person acting in loco parentis. We have, therefore, a party acting in loco parentis exhibiting a falsified account, and getting his nephew to sign that false account, representing that he had had a satisfactory investiga- tion of it. Why, on the face of the account, he might have had a 396 ALLFEEY v. ALLFREY [part i. satisfactory investigation of it, because the account itself necessarily did not contain a statement, and least of all, proof of errors; therefore he may have investigated the account, but nobody could have discovered the fraud, or the omission, from the mere investigation of that account. The young man, however, had been deceived; the whole transaction had been mystified and misrepresented; and the party, who was entitled to have, as he states he had had, a satisfactory investigation of the administration account, as well as the account he signed, expressed his approval neces- sarily in ignorance of the fraud, which had been practiced upon him. That transaction, therefore, is most properly, by the decree of the Master of the Rolls, set aside. Now what possible security can the Court have, or can the Plaintiff have, that, in pursuing this enquiry, and endeavour- ing to shew in what other respects he may have been in a similar manner defrauded, he (the Plaintiff) has the materials to enable him to bring be- fore the Master any other case of fraud? It may exist; it may be covered by some false entry; and, if he could find it out, and have the means of proving it, he might be relieved under a decree to surcharge and falsify. But is it not rather the duty of those who rely upon the ac- count, who represent the party who made the account, who stand in the place of the author of the fraud, to substantiate and prove the actual state of the account, than to throw that burden on the party complaining, and who may with justice complain, of his having been de- ceived and defrauded in the ostensible settlement that took place. No doubt it may produce hardship; it is impossible to deny that, after the great length of time, which I say nothing upon, because, when fraud is so distinctly established, time becomes perfectly immaterial. The Plain- tiff, not having the means of discovering the fraud, did not in fact dis- cover it until within a comparatively recent period. Under these circumstances, difficulties may, beyond all doubt, arise in passiug the account. The Master of the Rolls has, however, adopted a plan, which has also been pursued in a great many recent cases, and which, in a degree, applies a remedy to the jiossible evil, arising from a loss of documents, or of evidence, from lapse of time. He has given the Master directions, that, if he finds a difficulty in taking the account, owing to the length of time that has elapsed, or to the loss of documents, he is to state specially the difficulty, which he finds, on circumstances that appear before him on that subject. The Court, then, according to the facts that appear on the Master's report, may be in a situation to apply such remedy, and give such further directions, as the circumstances of the case may require, which, in a great degree, guards against the pos- sibility of injustice being done even to an offending party; and I think it affords all the protection, which the party so offending is entitled to, or can in justice be allowed, in a decree between himself and the party so defrauded. I therefore approve of the decision of the Master of the Rolls in every part, and dismiss this appeal with costs.' '"The next question is in effect, whether delay will purge a fraud? Never CHAP. IV.] PRINCIPLES FOUNDED ON IN THIS WORK 397 while I sit here. Every delay arising from it adds to the injustice, and multi- plies the oppi-ession." Per Lord Cliancellor Noutiiington in Alden v. Gregory, 1764, 2 Eden 280, 285. "No length of time will bar a fraud." Per Lord Chancellor Talbot in Cotterell t\ Purchase, 1734, Forrester 61, 03. The maxims treated by the cases printed are not all that have been recog- nized, but it is believed they are all that are fundamental. Among those not treated, the following are noted by Francis in his Maxims of Equity, "It is equity that should have satisfaction which sustained the loss." "It is equity that should make satisfaction, which received the benefit." Neither of these is found in recent works, and the principles involved in them seem easy, if not indeed necessary, deductions from those considered. His maxim, "Equity will not suffer a double satisfaction to be taken," is covered by the cases in the text under, "Equity imputes an intent." Three others, "Equity relieves against accident." "Equity prevents mischiefs," and "Equity prevents multiplicity of suits," express principles that are now recognized rather as distinct, well defined occasions for the assumption of jurisdiction by the courts of equity than as principles controlling the exercise of a jurisdiction already acquired. They are treated from tliis standpoint in the body of the work. His one other maxim not illustrated in the text is "Equity suffers not advantage to be taken of a penalty or forfeiture where compensation can be made." This likewise is treated later, as belonging rather to equitable rights. Bispham, in his Principles of Equity, gives still another maxim, "Equity acts specifically." But this also seems rather a ground for taking jurisdiction than a general principle controlling its exercise. The principle has already re- ceived treatment under the section "Grounds of Equity Jurisdiction," supra. In addition to tlie collection of maxims in the standard works on equity, the student will find of interest and value Hening's Maxims, a book in which is reprinted the works of Noy, Francis, and Branch. Lord Kames, at the end of his two-volume work on the Principles of Equity, announced the following general principles under the title prefixed : PRINCIPLES FOUNDED ON IN THIS AVORK. A man who is innocent is not liable to repair any hurt done by him. When there is a right, some court must be empowered to make it effectual. For every wrong there ought to be a remedy. No interest of mine, not even the preservation of life itself, avithorizes me to do any mischief to an innocent person. Every man may prosecute his own right without regarding any indirect or consequential damage that another may suffer. Justice will not permit a man to exercise his right where his intention is solely to hurt another. An action at law will not be sustained if the plaintiff cannot show that it will benefit him. It is an immoral act to strip people of their property by throwing a strong temptation in their way. _^ He that demands equity must give equity. — 1 Equity holds a deed to be granted where it ought to be granted. 398 PKINCIPLES FOUNDED ON IN THIS WORK [part i. One is permitted to take advantage of another's error in damno evitando, not in lucro captando. No man is entitled to the aid of a court of equity when that aid becomes necessary by his own fault. No person, however innocent, ought to take advantage of a tortious act by which another is hurt. A man ought not to take advantage of an improvement or reparation made upon a common subject without refunding part of the expense, in proportion to the benefit he has received. A thought retained within the mind cannot have the effect to qualify an obligation more than to create it. To bind a man by words beyond consent is repugnant to justice. He who wills the end is understood to will the means proper for accomplish- ing the end. A person honoured in a deed can take no benefit by it if he counteract the declared will of the grantor. A man who has committed no fault cannot be deprived of his property. No person is bound to fulfill an obligation that answers not the end pur- posed by it. Cujus commodum ejus debet esse incommodum. Every crime against the law of nature may be punished at the discretion of the judge when the legislature has not appointed a particular punishment. A case out of the mischief is out of the meaning of the law, though it be within the letter. No man is permitted to take advantage of a defect in evidence when that defect is occasioned by his fraud. Portior debet esse conditio ejus qui certat de damno evitando, quam ejus qui certat de lucro captando. It is unjust to demand from the debtor privately, or even by legal execu- tion, any subject that he is bound to convey to another. No man is suffered to take benefit by his own fraud or wrong. No man is suffered to make a defence contrary to conscience more than to make a claim. Frustra petis quod mox es reflituturus. The motive of preventing loss will not justify an unjust act or the being accessory to it. These principles are printed at end of volume one of Fonblanque's Equity. CHAP, v.] WILLIAM SYSEL'S CASE 399 CHAPTER V. EQUITABLE RIGHTS. Section 1. Accident. WILLIAM SYSEL'S CASE. In Chancery, before Lord Chancellor Edmund de Stafford, 1398-1403. \Select Cases in Chancery, 10 Selden Society, No. 39.] ' To the most honourable and most reverend Lord and Father in God, the Bishop of Exeter and Chancellor of England, Beseecheth William Sysel, one of the lieges of our Lord the King, that whereas lately John Burdeyn, Prior of Leighs in the county of Essex, by his writing indented, and with the assent of his convent, granted to the said suppliant a corrody,° to be taken yearly in the said Priory, as in certain indentures between the said Prior and the said suppliant was more fully contained; of which corrody the said suppliant was peaceably possessed, by virtue of the said grant, until the Thursday after the Purification of our Lady in the 21st year of our Lord the King [1398], when certain persons, with the assent of the said Prior, entered the house of the said William within the said Priory against his con- sent and will, and broke the said house, and, with force and arms, took and carried off the deeds, evidences, and other muniments touching the said corrody and other debts between the suppliant and the said Prior, by [the direction of?] the said Prior; whereby the said suppliant is ^ In his arrangement of cases under the heading "Principles and Growth of Equity," the editor of "Select Pleas in Chancery," Mr. William Paley Baildon, has grouped this case under "Accident." His note to the case itself reads: "No equitable doctrine appears in this case, unless discovery is implied in the prayer. Specific performance is not asked for, although it might liave been expected." ^A right to certain allowances of food, and sometimes lodging and raiment; they were common in most English monasteries, and were frequently com- muted for a money payment. 400 KOPPEE V. DYEE [part i. ruined, and [hath] lost the substance of his living: May it please your most gracious Lordship to grant a writ of our most redoubted Lord the King directed to the said Prior [commanding him] to be before you in the Chancery on the quindene of Trinity next to come, to answer to this matter, and according to what is found by examination or by averment, to do what right, law and good faith demand; For God and in way of Charity/ KoppER V. Dyer (1887), 59, Vt. 477, 482.— Eowell, J. Kopper seeks relief on the ground of accident. That chancery may grant relief on that ground in cases of this kind cannot be doubted; and the first question that arises is, Has the orator made a case that calls for the interposition of the court in his behalf ? The term accident, in its legal signification, is difficult to define. Judge Story defines it as embracing " not merely inevitable casualty, or the act of Providence, or what is technically called vis major, or irre- sistible force; but such unforeseen events, misfortunes, losses, acts, or omissions as are not the result of any negligence or misconduct in the party " affected thereby. 1 Story Eq. s. 78. Mr. Pomeroy justly criti- cises this definition as including what are not accidents at all but mistakes, and as omitting the very central element of the equitable con- ception, and defines it thus : " Accident is an unforeseen and unexpected event, occurring external to the party afi^ected by it, and of which his own agency is not the proximate cause, whereby, contrary to his own intention and wish, he loses some legal right or becomes subjected to some legal liability, and another person acquires a corresponding legal right, which it would be a violation of good conscience for the latter per- ^ "Touching the affirmative part, what matters are relievable in the chan- cery, I have heard they must be one of these kinds, viz. matters of fraud, trust, extremity, or casualty; or else not lightly to be dealt in here. For almost all others besides these do arise from the remiss, careless, and neg- ligent dealings of men, who having precipitated themselves into some great inconveniences, come with open mouths into the chancery seeking relief; wherein how far they shall be thought tit to be holpen, I will not presume to determine." — Hargrave Law Tracts, 431. "Three things are to be judged in court of conscience: covin, accident, and breach of confidence. "All covins, frauds, and deceits, for the which there is no remedy by the ordinary courts of law. "Accident, as wlion a servant of an obligor, mortgagor, &c. is sent to pay the sum on the same day, and he is robbed &c., remedy is to be liad in tliis court against the forfeiture, and so in the liispeft of future obligations imposed by law than that such means shall he taken to fulfill them as will render CHAP, v.] ANONYMOUS 403 it reasonably certain, as far as human sagacity can foresee, that they will be performed. It is common in England to enlarge the time of redemption on applica- tion before the day of payment ; and though the indulgence is not granted of course, it is said not to require a very strong case to obtain it. And the time may be enlarged more than once. Thus, in Jones v. Creswicke, 9 Sim. 304, after the time had been enlarged, and after the order absolute had been made though not drawn up, the time was again enlarged, on the ground that the man who had agreed to lend the defendant the money was prevented by illness from going up to London on the day it was due, and his wife, whom he had deputed to carry it up, was prevented from doing so because the London coach was full the day before. And see Edwards V. Cunliffe, 1 Madd. 287. And the decree may be opened after the order absolute has been made and enrolled. Thus, in Ford v. Wastell, 6 Hare, 229, notwithstanding the order absolute had been drawn up and enrolled, the decree was opened because all the plaintiff's property was involved in an administra- tion suit that she was justified in believing would terminate in season to enable her to avail herself of her property with which to meet the pay- ment, but which had not yet terminated. See also Thornhill v. Manning, 1 Sim. N. s. 451, in which the promptness of the mortgagor in applying was regarded as the great and important feature in the case to guide the court in deciding what it ought to do. ANONYMOUS. In the Court of Common Pleas^ 1536-37. [Dyer 33a.] A lease for years was made of a meadow by which the river Exe runs, by deed indented ; and the lessee covenanted to sustain and repair the banks to prevent the water from overflowing, upon pain of forfeiture of ten pounds. And afterwards, by reason of a great, outrageous, and sudden flood, which happened lately by reason of the subversion of the weirs in Devonshire, the banks were decayed and perished, &c. And by the opinion of Fitzherbert and Shelley the law is, that the lessee is excused from the penalty; as if it were of an house which is burnt by lightning, or overturned by the wind, because it is the act of God. which cannot be refitted; but still he is bound to make and repair the thing in convenient time, because of his own covenant.' * In Atkinson v. Harman, 1553-58, 1 Calends, cxlii. (a case on all fours 404 UNDEKWOOD v. SWAIN [part i. EOWLES V. ROWLES. In Chancery, 1579-80. iCary 111.] The plainant'desireth to be relieved against an obligation of one hun- dred pounds, which had an intricate and insensible condition put in suit, for that the plainant, being desired by the defendant to seal a release, desired only time to be advised thereof, which the defendant would not yield unto, but hath put the bond in suit, though no ways damnified; and now the plainant is ready to seal the release; therefore an injunction is granted. UNDERWOOD v. SWAIN. In Chancery, 1649. [1 Beporis in Chancery 161.] The Case is. That Philip Swain being seized in Fee of the Lands in question, by Will devised the same to John Swain of Langston his Kinsman and his Heirs, in consideration that he should pay all his Debts and Legacies, by which Will the said Philip appointed his with tlip priiifipal case) the plaintiff filed his bill in Chancery asking relief from a deed by the terms of which he was bound, under penalty, to keep in repair certain banks, thus confining the water from the Thames. The bill set forth that tlie banks were so washed out by sudden and heavy rains, that the keeping of them in repair was impossible. Both the answer and the replication are given, but no endorsement. The disposition made of the case is therefore uncertain. Mr. Spence says: "The cases in which the Court of Chancery was first called upon to exercise this jurisdiction [founded on accident], so far as we can collect, was in the instance of penalties and forfeitures." — Jurisdiction of Comt of Chancery. 028. "It has sometimes been said by writers that this entire jiu'isdiction over jx-nalties and forfeitures is l)ased upon accident. It may be true that, in the earliest period of equity, the chancellors referred cases of relief against pen-, alties to the general head of accident; but to explain the whole jurisdiction as now administered by treating it as based on accident, is to disregard the plain facts and meaning of words." — Pomeroy, Equity Jurisdiction, § 833, n. 1. AL'.iin Mr. Spence says: "In the reign of Philip and Mary, we find bills filed to he relieved from penalties, expressly on the ground of accident, as where a person was bouiMJ to repair the banks of a river within a given time. CHAP, v.] UNDERWOOD v. SWAIN 406 Legacies to be paid within two Months after the death of Sibil his IFi/e, who had an Estate in the Premises for her Life, and lived about 12 years after tlie death of the said Philip, and in the mean time married the Plaintifl" Underwood, who having an Estate in right of his said W^ife for her l^ife. purchased the Keversion thereof after the death of the said John Swain of Langston of John Swain the Son and Heir of the said Joh)i Swain of Langston, the Devisee of the said Philip Swain, and afterwards the said Plaintiff Undertvood paid the Debts of the said Philip and all the Legacies, except two five pounds to two of the Lega- tees, and for Non-payment whereof the Defendant John Swain entred on the Premises as Heir at Law, the Condition being broken. But before the said Entry the Plaintiff Underwood sold the Premises to Tohy Payn, and the said Tohy Payn devised the Premises to the now Plaintiffs Thomas and John Payn, and died, pending this Suit, which the now Plaintiff revived. This Case was reduced to this short Question, viz. Whether a Court of Equity can control the Law, or give Relief against an Entry made by the Heir for the Breach of a Condition. and had been prevented by an extraordinary flood [citing Atkinson v. Har- mon, supra'l. Many instances of relief against penalties in money bonds, on the ground that payment had been prevented by some unforeseen event, appear in the time of Elizabeth." To this he has the following note: "As where a person was prevented from doing the act by a flood, Reg. Lib. 13. 1579, fo. 138; by the Plague B. 1582, fo. 2C9, and the like. In one case the plaintifl", the defendant's tenant, had paid his rent to the plaintiff's servant, who had no authority to receive it, so that he had to pay it over again ; being a poor man he had difiiculty in again procuring the money, and the landlord refused to receive it when tendered, saying the sun had gone down (which was doubtful, it being a cloudy day) and he brought an action of ejectment on the ground of forfeiture, 'which kind of dealing,' says the order, 'this court doth utterly condemn;' therefore an injunction was granted, B. 1575, fo. 42. Similar order, B. 1575, fo. 258. — Jurisdiction of Court of Chancery, 629, and n. (e). "If a man be bound in a penalty to pay money at a day, and place, by obligation, and intending to pay the same, is robbed bj' the way; or hath intreated by word some other respite at the hands of the obligee, or cometh short of the place by any misfortune ; and so failing of the payment, doth nevertheless provide and tender the money in short time thereafter ; in these and many such like cases, the Chancery will compel the obligee to take his principal, with some reasonable consideration of his damages (quantum ex- pediat) , for if this was not, men would do that by covenant which they do now by bond. "The like favor is extendable against them that will take advantage upon any strict condition, for undoing the estate of another in lands, upon a small or trifling default." — Cary 1. For cases illustrating the jurisdiction exercised by a court of equity in cases of lost bonds, see the cases of Atkinson v. Leonard, supra, p. 138, and cases following. . 406 THE KING v. ARUNDEL [part l This Court upon View of Precedents in Cases of like nature was clear of Opinion to give Relief to the Plaintiffs notwithstanding the said Forfeiture, and decreed the Plaintiffs and their Heirs to enjoy the Premises against the Defendants and their Heirs. THE KING V. ARUNDEL. In Chancery, before Lord Chancellor Ellesmere, 1617. [Hohart 109.]' In Chancery there was a Suit commenced by me, as Attorney General, in the Behalf of the King's Majesty, and the Lord Himsdon as the King's farmer for the Manor of West Harsley and Asalby in the County of York, against the Countess Dowager of Arundel, and the Lord William Howard and his Lady ; which Cause coming to Hearing after I was Chief Justice of the Common Pleas, my Lord Chancellor called to his Assistance in the hearing of it, the Lord Chief Justice Col:e and myself.^ This Cause hung long, and had many hearings and Briefs delivered, and after long Con- sideration was this Term, with uniform Consent of the Lord Chancellor, us the Judges, and Master of the Rolls, decreed for the King: Wherefore the decree is, with the Reasons thereof, advisedly and exactly penned and entred, as of this Trinity Term 14 Jac. Of this decree therefore at large I will say nothing but this, that the Reason of the Suit in Chancery was not for Want of good Title at Law (for it laid and affirmed the King's Title to be merely by Law, by the At- tainder of Francis Dacres, whose Land the Bill laid the Land to be, of an Estate in Tail) but the Cause of Suit was made, that the Deeds whereby the Estate was to come to Francis Dacres were not Extant, but very vehemently suspicious to have been suppressed and with-holden by some under whom the Defendants claimed, and therefore in the End the Decree ran, that the King and his Heirs, and his said Farmer, should hold and enjoy the Land 'till the Defendants should produce the Deeds, and the Court thereupon take further Consideration and Order.* ^The case is cited and facts givon in Cowper v. Cowper (1784) 2 Peers Wms. 720, 748, by Sir Joseph Jokyll, ]\I. R. See also 2 Eq. Cas. Abr. 287. ^ It appears from Sir Joseph Jekj'll's account that the Master of the Rolls, Sir Julius Ca-sar, also assisted at ihe detennination of this important case. ■■"'Again it has been said that fraud, accident, and trust are the proper and peculiar objects of a court of equity. . . . Many accidents are also supplied in a courl of law ; as, loss of deeds, mi.stakes in receipts or accounts, AVTong payments, dcatlis wliich make it impossible to perform a condition literally, and a multitude of other contingencies." — 3 Blackstone's Commen- taries, 431. CHAP, v.] DALSTON v. COATSWORTH 407 DALSTON V. COATSWORTH. In Chancery, befoue Sir Joseph Jekyi.l, M. R., 1721. [1 Peere Williams 731.] The plaintiff brought a bill for relief ajiainst the suppression of a deed, by which the plaintiff's uncle had settled a term in such a manner as that after his and his wife's death (which wife was the defendant) without issue, the same was to come to the plaintiff for the residue of the term. The plaintiff's uncle was dead without issue, and the defendant the wife had burnt the deed. The defendant by her answer but faintly denied it, (viz.) that she did not remember she ever burnt or destroyed the said deed. The witnesses swore the limitations of the settlement to be in trust for the husband for life, remainder to the defendant his wife for life, re- mainder to the heirs of their bodies [by one witness,] remainder to the issue of their bodies [by another,] and for want of issue by the defendant and her husband, remainder to the plaintiff. Objected for the defendant, that the limitations of the trust of the term being to the heirs of the bodies of the defendant and her husband, or to the issue of the bodies of the defendant and her husband, remainder over to the plaintiff, such a remainder over of the trust of the term was void in law; and therefore supposing the deed to have been suppressed, yet it could not, were it to be admitted, profit the plaintiff, or make him any title. But by the master of the rolls, it is true, where a term is limited to a man and wife for their lives, remainder to the heirs of their bodies, and for want of such issue, remainder over, this remainder over being but of a term is void : but on the other side, a term may be limited in the following manner, (viz.) to trustees in trust for the husband and wife for their lives, and afterwards for their children, or for their issue ; and for want of such children or issue living at the death of the said husband and wife, then to go over to the plaintiff, and such limitation (vide Stanley v. Leigh, post, 2 vol. 686) is good; now, since a term might be limited in such a manner, I will intend it to have been so limited in the present case, for every thing shall be presumed in odium spoliatoris. Then his honour considered in what manner the decree should be pronounced, and he cited the case in Hob. 109. The king and lord Huns- don versus countess dowager of Arundel, where the king and his farmer under him claimed title by the attainder of Francis Dacres who was at- tainted of high treason, and was supposed to be tenant in tail by virtue of a deed not extant, but vehemently suspected to be suppressed and withholden by some under whom the defendants claimed, and therefore it was decreed by the then lord chancellor, with the assistance of 408 DALSTON v. COATSWOETH [part i. the two chief justices (Coke and Ilohart) that the king and his farmer under him should hold the land until the defendants produced the deed, and the court made farther order thereon ; his honour said, that Sir John Trevor his predecessor had ordered this decree to be searched for, the term being mentioned in the report, but it could not then be found ; how- ever, that he himself having since ordered farther search to be made, had found the same, under the name of Hobart, attorney general versus L ' so that now any person might have access to the said decree. That the next case of this nature was, that of Sanson versus Eumsey town-clerk of Bristol where the defendant Rumsey had articled to give a portion to Sanson with his daughter, and the defendant had the deed in his custody; the plaintiff suing for the portion, and setting forth the purport of the articles by his bill, the defendant pretended in his answer, that the articles did vary from what the bill set forth, and afterwards burnt the articles; all which being made to appear, he was committed, and continued under confinement till he had admitted the articles to be as the bill had set them forth, which commitment was only by an inter- locutory order, and the cause never heard. The next was that of Hampden versus Hampden, heard the 8th of December 1708, where the plaintiff claiming as devisee under the defend- ant's father's will; by proof it appeared that there was such a will, though no exact account was given of the contents thereof; but inasmuch as the court was satisfied the defendant had suppressed the will, and for that (though no exact proof was made of the contents) the defendant might clear this by producing the will, therefore it was decreed that the plaintiff the devisee should hold and enjoy until the defendant produced the will and farther order. This cause was first decreed by the late master of the rolls, then affirmed by the lord chancellor on appeal, and afterwards by the house of lords. 1 Bro. P. C. 250. The last case was that of Woodruff and Burton, February 1719, and was thus : A devisee brought his bill against the heir, and it being made to appear that there was such a bill, as the plaintiff had suggested, and that the defendant had destro^-ed it, the lord chancellor Parher decreed the de- fondant to convey the premises to the plaintiff in fee, and to deliver up the possession, which (his honour said) seemed to him to be the most effectual and reasonable decree. But in the principal case the c^urt said, there could be no decree for the possession, nor any pi'esent conveyance to the plaintiff, it being only a remainder of a term after the defendant's death ; but let the defendant assign over the term to trustees, in trust for herself for life, and after- wards for the plaintiff; and let her bring the deeds relating to the title iiitr» court, and pay costs. Reg. Lib. A. 1722. fol. 232. Entered of Easter term 172:5. ' See also this case particularly wtatcil in the case of Cowper v. Lord Cowper, vol. 2, 720. CHAP, v.] LANCY V. Rx\NDLETT 409 Whitfield v. Fausset (1749-50) 1 Ves. Sr. 387, 392.— Lord Chancellor Hardwicke. — The loss of a deed is not always a ground to come into a court of equity for relief : for if there was no more in the case, although he is intitled to have a discovery of that, whether lost or not, courts of law admit evidence of the loss of a deed, proving the existence of it and the contents, just as a court of equity does. There are two grounds to come into equity for relief, annexing an affidavit to his bill. First where the deed is destroyed or concealed by the defendant ; and whenever that is the case, the plaintiff is intitled in this court to have relief upon the reason in Lord Iluiisdon's case in Hob. Another is where the plaintiff cannot recover at law without making profert of the deed in pleading at law. If a man has lost a bond, he is intitled to come into equity not only for a discovery, but to have a decree for payment; because he cannot declare without making profert^ the defendant being intitled to oyer.^ LANCY I'. RANDLETT. In the Supreme Judicial Court of Maine, 1888. [SO Maine 1G9.] Haskell, J. The orators ask to be confirmed in their title to land clouded by the loss of their title deed prior to its record. The respondents demur upon three grounds. I. For the want of jurisdiction in equity over the subject matter of the bill. II. For the want of equity shown on the face of the bill. III. Because of a plain and adequate remedy at law. Equity jurisdiction for discovery and relief in proper cases touching lost written instruments is as old as equity itself. Sto. Eq. Jur. §§ 79, 84; Whitfield v. Fausset, 1 Ves. 392; Blight's Heirs v. Banks, 6 T. B. Monroe, 192; Pom. Eq. Jur. § 1376, -note 3; Campbell v. Sheldon, 13 Pick. 8. The bill avers more than a dozen years' undisturbed possession under the lost deed, and that the grantor has repeatedly refused to execute a new deed in its stead, and puts searching interrogatories for answer upon oath concerning the execution and delivery and loss of the missing deed ; but it does not aver that the loss was not without even the culpable negligence of the orators themselves ; nor does it suggest that the ^ "Many [accidents] cannot be relieved even in a coui't of equity; as, if by accident a recovery is ill suffered, a devise ill executed, a continfjent remainder destroyed, or a power of leasing omitted in a family settlement." — 3 Black- stone's Commentaries, 431. 410 LANCY V. RANDLETT [part i. respondents were in any way responsible or chargeable for its loss or destruction. Equity withholds relief in causes when the party asking it deliberately makes the mischief from which he suffers. If the loss of a deed be accidental and without the fault of the grantee, thereby subjecting his title to hazard and peril, from which the law gives him no adequate relief, equity will afford that relief most suited to the necessities of the case. Hord v. Baugh, 7 Humph. 576 ; Dalston v. Coalsworth, 1 P. Wms. 731, 733. If the bill be for discovery, containing the averments essential to a bill of that sort, and the discovery is had showing facts that warrant relief in equity or at law, the court having obtained jurisdiction of the cause may award such relief as proper for courts of equity to grant, if relief as well as discovery be prayed for in the bill. Sto. Eq. Jur. §§ 71, 72; Eussell V. Clarke's Ex'rs, 7 Cranch, 69. If the discovery shows the proper relief to be an award of damages that ought to be ascertained by p. jury, an issue can be framed and tried in the same suit without send- ing the parties to an action at law. R. S., c. 77, § 30. But to obtain jurisdiction for relief in equity, over a cause purely legal, upon the ground of discovery, the bill must aver that the facts sought to be discovered are material to the cause of action, and that the orator has no means of proving them in a court of law, and that the dis- covery of them by respondent is indispensable as proof. Pom. Eq. Jur. § 229; Stor. Eq. Jur. § 74, and cases cited; and the want of such aver- ment is fatal on demurrer to the bill when jurisdiction is sought in equity for discovery and relief solely upon the ground of discovery. So, if by plea in such case these facts be traversed, it would seem that the issue must be decided in favor of the truth of the bill, before discovery could be decreed. If the discovery, as in most cases, be in aid of the averments of the bill that show the cause to be one of equitable jurisdiction, then the aver- ments of necessity for discovery are not essential, and a demurrer cannot be sustained for the want of them, but discovery must follow as a matter of course. The orators' bill is insufficient- for the want of equity, inasmuch as it fails to show the circumstances of the loss of the missing deed, or at lea.^t that the loss was occasioned without the orators' fault. For aught that appears in the bill, the orators may have designedly destroyed the missing deed for some fraudulent purpose. For this reason, the deniurrer is well taken and the exceptions must be overruled. Hoddy v. Hoard, 12 Tnd. 474. Nor can the bill be maintained for discovery and I'elicf \\\)(\\ tlie ground of discovery alone, for the necessary averments in such bill are wanting; but, if the orators can truthfully amend their bill so as to come within the reasoning of this opinion, they should be allowed to <|o so upon such terms as the court below shall consider just. If the deed has been lost without fault for which the orators are in CHAP, v.] PIEKSON v. HUTCHINSON 411 equity chargeable, it would seem that they have no plain and adequate remedy at law. It is true that, although the deed has not been recorded, its contents may be proved by parol in an action at law; Moses v. Morse, 74 Maine, 472; but the cloud is upon the record title, and the remedies pointed out by the learned counsellor for respondents fail to heal the apparent defect of title shown by the registry of deeds. That cloud can only be removed by an appropriate decree in a court of equity. Exceptions overruled.^ PIERSON V. HUTCHINSON. Cases at Nisi Prius, 1809. [2 Camphell 211.] ' This was an action by the endorsee against the acceptor of a bill of exchange. The Attorney-General in opening the plaintiff's case stated that he should not be able to produce the bill, as it had been lost; but he should prove that before the action was brought, the defendant had been regu- larly called upon for payment, and had been offered an unexceptionable indemnity. According to the usage of merchants, he was thereupon bound to honour his acceptance in the same manner as if the bill had still remained 'in the plaintiff's hands, and had been actually presented to him in the usual form. Lord Ellenborough. If the bill were proved to be destroyed, I should feel no difficulty in receiving evidence of its contents, and directing the jury to find for the plaintiff. Even on a trial for forgery, the destruction of the instrument charged by the indictment to be forged, is no bar to the proceedings. I remember a case before Mr. Justice Buller, where ' "A bill will undoubtedly lie, in many cases for the delivery up of title deeds, and it is a very ancient and important head of equity. Lord Redesdale refers to a case of that description so early as in the time of Edward IV. (Tr. Plead. 95, last Edit.). Where a party is in the Possession of Property to which the Deeds relate, such a Bill may, in some circumstances, be very proper; but where, as Lord Redesdale observes, 'the Title to the possession of Deeds and Writings, of which the Plaintiff prays Possession, depends on the validity of his Title to the property to which they relate, and he is not in Possession of that property, and the evidences of his Title to it is in his own power, or does not depend on the production of the Deeds or Writings of which he prays deliverj', he must establish his Title to the property at Law before he can come into a Court of Equity for delivery of tlie Deeds or Writings.' " Per Sir Thomas Plumer, V.C, in Armitage v. Wadsworth, 1815, 1 Madd. 189, 192. ' S. C. 6. Esp. 126. 412 HANSAED v. EOBINSON [part i. the prisoner had destroyed a bank note he was accused of having forged, b}' swallowing it. He was acquitted on the merits : but the learned judge who presided held, that he might have been convicted without the production of the bank note, and this doctrine was approved of by the whole profession. Plere, however, the instrument is not destroyed. It is lost after being endorsed by the payee. It may now be in the hands of a bona fide endorsee for value, who might maintain an action upon it against the defendant. This brings it to the indemnity. But whether an indemnity be sufficient or insufficient, is a question of which a court of law cannot judge. There are dicta to be sure, that upon the offer of an indemnity the endorsee of a lost bill may recover at law ; but these are so contrary to the principles on which our judicial system rests, that I cannot venture to proceed upon them. Since the plaintiff can neither produce the bill nor prove that it is destroyed, he must resort to a court of equity for relief. Hansard v. Eobinson (1827) 7 B. & C. 90, 93.— Lord Tenterden, C. J., now delivered the judgment of the court. This was an action on a bill of exchange brought by the indorsee against the acceptor. The bill was not produced at the trial, but proof was given of the signature of the parties, and other particulars of the bill, and that it was lost after it had become due, and after payment had been required of the defendant, and he had requested time and promised pajonent. It is not necessary to say whether any special action could have been framed and maintained upon the particular facts and the defendant's promise, because the declaration in the present cause is not founded upon such facts, but upon the bill itself, in the usual way. We would not, however, be understood to give any encouragement to such an action ; and we think the special facts cannot properly be considered as affording a satisfactory ground for decision in this case, but the case must be con- sidered generally, as an action brought upon a lost bill, and introducing the general question, whether such an action can be maintained. Upon this question the opinions of judges, as they are to be found in the cases quoted at the Bar, have not been uniform, and cannot be rec- onciled to each other. It is not necessary to advert again to the cases. Amid conflicting opinions the proper course is, to revert to the principle of these actions on bills of exchange, and to pronounce such a decision as may best conform thereto. Now the principle upon which all such actions are founded is the custom of merchants. The general rule of the English law does not allow a suit by the assignee of a chose in action. The custom of merchants, considered as part of the law, furnishes, in this case, an exception to the general rule. What, then, is the custom in this respect? It is, that the holder of the bill shall present the in- strument, at its maturity, to the acceptor, demand payment of its amount, and upon receipt of the money deliver up the bill. The ac- CHAP, v.] Hx parte GKEENWAY 413 ceptor paying the bill has a right to the possession of the instrument for his own security, and as his voucher and discharge pro tanto in his ac- count with the drawer. If, upon an offer of payment, the holder should refuse to deliver up the bill, can it be doubted that the acceptor might retract his offer or retain his money? And if this be the right of an acceptor, ready to pay at the maturity of the bill, must not his right remain the same if, though not ready at that time, he is ready after- wards; and can his right be varied if the payment is to be made under a compulsory process of law? The foundation of his right, his own security, his voucher, and his discharge toward the drawer, remain un- changed. As far as regards his voucher and discharge toward the •drawer, it will be the same thing whether the instrument has been •destroyed or mislaid. With respect to his own security against a demand by another holder there may be a difference. But how is he to be assured of the fact, either of the loss or destruction of the bill ? Is he to rely upon the assertion of the holder, or to defend an action at the peril of costs? And if the bill should afterwards appear and a suit be brought against him by another holder, a fact not absolutely improbable in the case of a lost bill, is he to seek for the witnesses to prove the loss, and to prove that the new plaintiff must have obtained it after it became due? Has the holder a right, by his own negligence or m.isfortune, to cast this burden upon the acceptor, even as a punishment for not discharging the bill on the day it became due? We think the custom of merchants does not authorise us to say that this is the law. Ts the holder, then, without remedy? Not wholly so. He may tender isuffieient indemnity to the acceptor, and if it be refused, he may enforce payment thereupon in a court of equity. And this is agreeable to the mercantile law of other countries. In the modern Code de Commerce of France, Liv. 1. TU. 9. Art. 1.51, 152., this is distinctly provided. And this provision is not new in the law of that country, but is found also in the rdonnance de Commerce of Lewis the Fourteenth, Tit. 5. Art. 19. The rule for ent !ring a verdict for the plaintiff must therefore be dis- -charged. Rule discharged. Ex parte GREENWAY. In Chancery, before Lord Chancellor Eldon, 1802. [6 Vesey Junior 812.] The object of this petition was to be admitted to prove under a Com- mission of Bankruptcy in respect of a bill of exchange, alleged to bQ Jest after indorsement. The affidavits stated, that the bill was returned from America protested; and the ship was captured in her return; and taken into the Isle of Rhe in Brittany. 414 Ex parte GREENWAY [part i. Lord Chancellor. To enable you to prove in respect of this bill, there must be a most extensive indemnity, even for the sake of the bankrupt, who is interested in this; a complete indemnity, going to all the conse- quences against the holder, if the bill has not been paid, and against any demand, that may be made by future possible holders, if it should have been paid. When I was Chief Justice, I tried an action in the Common Pleas upon a bill, alleged to be lost: which had been previously indorsed by the payee. An indemnity was offered by bond: but I nonsuited the Plaintiff. The counsel objected strongly upon the offer of indemnity; and it came before the Court upon a motion for a new trial; and there was a long discussion iipon the nature of these indemnities in a Court of Law. The Court had not come to a decision upon it, when I left them; and I do not know the result. But I never could understand, by what authority Courts of Law compelled parties to take the indemnity. L^pon the new doctrine of dispensation with the profert of a bond that difficulty does not arise; for there is the finding of the Jury upon the evidence, that the instrument is lost; which is conclusive between those parties. That has been settled at law, certainly in opposition to the opinions of some of the greatest lawyers. Since I have sat here, I have found in Lord Hardwiche's own hand (and he was one of the greatest lawyers who ever sat in Westminster Hall) his most positive declarations, that upon such an instrument it is impossible to maintain an action with- out Profert (1 Ves. 345, 393). The law is however now settled otherwise. I do not presume to dispute it; for it may be settled uppn grounds of pleading: it may proceed upon a supposed analogy to the proceedings in Courts of Equity; and it may proceed upon both. With regard to the supposed analogy to proceeidings in Equity, it is questionable, whether sufficient attention was paid to the consideration, that in equity the conscience is ransacked; and the party alleging, that the instrument is lost, must make an affidavit, that it is not in his possession or power. The consequence is, that if a man having an annuity deed differing from the memorial is dishonest enough to put it in the fire, and then to say, it is lost, he is to prove the contents. The best mode of doing that seems to be by producing the memorial; and yet that memorial, if the deed was produced, would have destroyed the deed. The order was, that the petitioner should be admitted to prove upon giving an indemnity; the Commissioners to settle a proper indemity. (Walrasley v. Child, 1 Ves. 341.) CHAP, v.] WHITE V. LOVE JOY 415 JACKSON r. HAMMOND. In the Supreme Court of New York, 1804. [1 Caincs 490.] In this cause, on an affidavit statinj? a verdict having been in 1792. taken for the pUiintiff, subject to the opinion of the court, on a case agreed on between the parties, on which judgment had been given, in 1798 for the plaintiff; and also, that the nisi prius record and issue roll were not to be found in the offiice of the clerk of this court, nor the nisi prius record among the papers of the former clerk of the circuit in which the cause was tried, and if left with the plaintiff's attorney, had been burnt or lost. Leave was given to make up and file a new nisi prius record, with a postea to be endorsed thereon, conformable to the minutes of the trial, and also to enter up judgment and issue execution for the plaintiff, ac- cording to the opinion of the court in 1798. No opposition. WHITE V. LOVEJOY. In the Supreme Court of New York, 1808. [3 Johnson 448.] A fieri facias was issued in this cause, and levied on the goods of the defendant, and afterwards, before a sale of the goods, it was burnt with other papers by an accidental fire, which consumed the house of the deputy-sheriff. N. Williams, for the plaintiff, now moved that a new fieri facias, similar to the one destroyed, might be made out and delivered to the sheriff. Per curiam. Take your rule for a new fieri facias to be made out, nunc pro tunc. . . . Keen v. Jordan (1869-70-71) 13 Fla. 327, 333. Eandall, C. J., de- livered the opinion of the court. ... II. The second ground of demurrer is, that the plaintiff is not entitled to relief upon the case stated in the bill, and the question presented is : Has a cOurt of chancery jurisdiction to supply to another court a record of the latter in place of one which has been destroyed by accident? The jurisdiction of the court of chancery, arising from accident, is a very old head of equity, and perhaps coeval with its existence. But every case of accident will not justify the interposition of a court of equity. The jurisdiction will 416 WHITE V. LOVEJOY [part i. be maintained only — first, when a court of law cannot give suitable re- lief, and secondly, when the party has a conscientious title to relief. Both grounds must concur in the given case, for otherwise a court of equity not only may but is bound to withhold its aid. 1 Story's Eq. Jur., 79. Is there then not merely some remedy, but is there adequate remedy at law? The Legislature, in cases like this, has provided a method of supplying records which have been destroyed or lost; but in such cases, if the court of chancery ever had jurisdiction, the legislative provision of a remedy will not take away the jurisdiction of equity, unless by express prohibition (Case v. Fishlack, 10 B. Mon. 40), for otherwise, a court of law might oust a jurisdiction rightfully attached in equity. The jurisdiction of the court of chancery in the case of lost instru- ments, as bonds, deeds, &c., was founded upon the doctrine that there could be no remedy, because there could be no profert of the instrument, ■without which a declaration would be fatally defective. And there was another ground for the interference of a court of equity, and that is, that no other court could furnish the same remedy with the fit limitations which might be demanded for the purposes of justice, by granting relief only upon the party's giving a bond of indemnity; a court of law being incompetent to require such a bond as a part of its judgment. 1 Story's Eq. Jur. 82. On the latter ground also, courts of equity had jurisdiction of remedies upon negotiable instruments which were lost or destroyed, for a court of law required that the plaintiff suing upon negotiable paper should produce it at the trial, which he could not do if it were lost. Williard's Eq. Jur. 52 ; Story's Eq. Jur. § 85. In coming into equity upon a lost bond or covenant on negotiable instruments, the party must have some object beyond the mere decree of the existence and loss of the paper ; he must be entitled to some relief or protection from the court beyond the establishment of the instru- ment. In the case of a lost bond or note, he may have a decree for its en- forcement and satisfaction. If a deed concerning land is lost, and the party prays discovery and to be established in possession under it, equity will relieve, for there is no remedy at law; and where the plaintiff is out of possession, there are cases in which equity will interfere upon lost or suppressed title deeds, and decree possession to the plaintiff; but in all such cases there must be other equities calling for the action of the court. 1 Ves. 434-35; 3 Atk. 132; 1 Fonblanque's Eq. P 1. ch. 1, sec. 3; id. ch. 3, sec. 3. These citations sufficiently indicate the grounds of equity jurisdiction in llic casos of lost or destroyed papers, without farther illustration. The power of sn])plying a now record when (lie original has been lost or destroyed, is one whicli {)ortains to courts of record of general juris- diction, independent of legislation. It is an inherent power in such courts, and has ])een acted upon in this State in Rhodes v. Mosely, 6 Fla., 12, and in Pcarce v. Thackeray, decided at Jan'y Term, 1870. CHAP, v.] WHITE V, LOVEJOY 417 In Douglass v. Yallop, 2 Burrow, 722, a new judgment roll, for a judg- ment rendered thirty years previous to a motion to supply the loss, was ordered to be made. In Jackson v. Smith, 1 Caines, 496, a new nisi prius record was allowed to be made up on motion and affidavit that the original had been lost or burnt, after six years. In White v. Lovejoy, 3 Johns. 448, a fi. fa. on which a levy had been made was burnt, and the court ordered a new fi. fa. to be substituted. The power has been long and frequently exercised in Alabama. McLendon v. Jones, 8 Ala. 298; Doswell V. Stewart, 11 Ala. 629 ; Dozier v. Joyce, 8 Porter, 303 ; Williams V. Powell, 9 Porter, 493 ; Wilkinson v. Brandam, 5 Ala. 608 ; Lyon v. Boiling, 14 Ala. 753 ; Bishop v. Hampton, 19 Ala. 792 ; 3 Ph. on Ev., 1066. Upon the destruction of any part of a record or of the process, plead- ings, or orders in a suit, the loss may be supplied by making up others in their stead, provided the court be reasonably satisfied that the pro- posed substitute is of the same tenor. Upon that, the court where the suit is must exercise its own judgment. Harris et al. v. McRae's adm'r. 4 Iredell, 81. The proceedings, in all the cases cited, v,'ere had in the absence of any statutory regulation, upon the acknowledged and necessary power of the court to control, amend, and supply its own records. The jurisdiction invoked by the complainant in the present case has not been exercised by any court of chancery in this country or in England (so far as we have been able to discover with our limited means of examination), and the principles upon which the court takes jurisdiction in the cases of lost instruments, come far short of embracing this case. The inherent power of the courts to control their own records, and to supply losses therein, it seems is antagonistic to the power of any other court to interfere and make records for them. By this proceeding, one court of special jurisdiction is invoked to take cognizance of and to supply to another court of general jurisdiction a record, in lieu of one which has been destroyed. This power, once admitted, will place the records of the courts of common law at the mercy of the court of chancery, and might lead to an absurd conflict between the law and equity side of the court over the records of the court of common law: one party imploring the conscience of the one to seize the power of the other and control the history of its past action, and perhaps to compel the court of law to adopt and acknowledge as a fact a thing of which it may deny any knowledge, and against which action the other party may justly ask it to revolt and treat as an usurpation, because its own power is ample and adequate. There is nothing here requiring the exercise of the conscience of the court which may not be attained by a simple proceeding according to the course of the common law, and therefore chancery has no office to perform. The decree of the court overruling the demurrer must be reversed upon both grounds of demurrer. 418 SIR JOHN HARRISON v. LORD NORTH [part i. SIR JOHN HARRISON v. LORD NORTH, Ex'r of Lady Montague, In Chancery, before Lord Chancellor Bridgman, 1667. [1 Cases in Chancery 83.] The plaintiff was tenant to the lady Montague of a house in London, at a certain rent: he left the house, and went to Oxon to the late king, and then sent his servant with the key of the house to the lady, and desired her to re-enter and accept the surrender. She said she would advise with the defendant her son-in-law, (who then set in the house of commons, and acted with them;) afterwards she refused to accept of a surrender. The house was made an hospital by the parliament for maimed soldiers. The defendant, as executor to the lady, brought debt at law against the plaintiff for rent incurred while the house was so used, and all the time. To be relieved against which action was the scope of the bill. Finch p. Quer. It is but reasonable, that if a tenant be put out by such against whom he can have his remedy over, that he notwithstanding be liable to pay his rent to the lessor. But here the plaintiff hath no remedy over ; and it was an act of force in the parliament, which is par- doned by the act of oblivion, and so no remedy over, and the king hath pardoned all his arrears of rent. The law of England is ex vi termini, stricter in the matter of rents than other nations; for redditus and reddere is accepted as restituere, and render implies apprendre. Maynard, for the defendant. The plaintiff hath a pitiful case ; but not such as this court can relieve; for the law and equity is all one in this case; and if the latter be no good bar at law, it is not good in equity. And he insisted, that if rebels, the king's own subjects, do an act of force, and hold a tenant out, that is no equity to excuse him from pay- ment of his rent; and cited the case of Carter and Cummins about two years since in this court, where the plaintiff' being a tenant of a wharf, which by an extraordinary flood was carried all away, brought his bill to be relieved against paying of his rent ; but all the relief he had was only against the penalty of the bond, which was broken for nonpayment of the rent ; and the defendant ordered only to bring debt for his rent. And he insisted, that a surrender of lands is no cause for apportionment of rent, which is stronger than the principal case. The Lord Chancellor took time to advise; but declared, if he could, he would relieve the plaintiff.' ' In J'anidiiio v. Jane, l(i7(), Alpyn 20, tlip j)1aintiiT defliircd in dclit on a lease rendering rent at the four usual feasts, for rent behind for three years. "The defendant pleads that a certain Cernian Prince, by name Prince Jlupcrt, an alien born, had invaded the realm with a hostile army of men; and with the same force did enter upon the defendant's possession, and him CHAP, v.] POWELL V. POWELL 419 BARNESLEY v. POWELL. In Chancery, before Lord Chancellor Hardwicke, 1750. [Ambler 102.] Petition, by the solicitor for Barnesley (who was a lunatic), setting forth, that he had expended great sums of money in prosecuting suits in this Court, and at law, against the defendant Powell, on behalf of the lunatic, and praying that he may be at liberty to enter up a judgment with a stay of execution against the lunatic, for such moneys, that thereby he may have a lien on his real estates. Lord Chancellor. An action cannot be maintained against a lunatic, but it must be against the person that employed the solicitor, who is the committee. If a solicitor prosecutes to a decree, he has a lien on the estate recovered in the hands of the person recovering for his bills; but if the client should die, the solicitor has no such lien on the estate in the hands of the heir at law, unless it should be necessary to have the suit revived, and then the lien will revive too. In the present case the committee has a lien on the lunatic's estate, and I will assist the solicitor as much as I can, therefore declare he stands in the place of the committee, and has a lien on the lunatic's estate. Q. If he had such lien ? The counsel for the solicitor doubted of it. N. B. Nobody appeared for Powell, and the petitioner had in his hands the title-deeds of the estate, which seems to be the best security. POWELL V. POWELL. In Chancery, 1708. [Precedents in Chancery 278.]' In this cs.se was cited a case where a tenant in tail contracted for sale of his lands, and received part of the consideration money; and upon his not making good the sale by fine or common recovery, a bill was expelled," so that the defendant was out of possession during the time. The Court sustained a demurrer to the plea. "And this difference was taken, that where the law creates a duty on charge, and the party is disabled to per- form it without any default in him, and hath no remedy over, there the law will excuse him. . . . But when a party by his own contract creates a duty or charge' upon himself, he is bound to make it good, if he may, not- withstanding any accident by inevitable necessity, because he might have provided against it by his contract." ^ S. C. case in 1 NEq. Ca. Abr. 265. 420 TOLLET v. TOLLET [part i. brought in equity to compel him thereto, and a decree pronounced ac- cordingly; he notwithstanding stood out all process against him to a contempt, and then died before the sale was perfected; and after his death a bill was brought against his issue in tail to revive the decree against him, but was dismissed; for though the tenant in tail had power by the fine or recovery to have barred his issue, yet since he did not make use of that power, his issue could not be bound by any other act of his.' TOLLET V. TOLLET. In Chancery, before Sir Joseph Jekyll, M, E., 1728. [2 Peere Williams 489.] ' The husband by virtue of a settlement made upon him by an ancestor, was tenant for life, with remainder to his first, etc., son in tail male, with a power to the husband to make a jointure on his wife hy deed under his hand and seal. The husband having a wife, for whom he had made no provision, and being in the Isle of Man, by his last will under his hand and seal, devised part of his lands within his power to his wife for her life. Object. This conveyance being by a will is not warranted by the power which directs that it should be by deed, and a will is a voluntary con- veyance, and therefore not to be aided in a court of equity. Master of the Rolls: This is a provision for a wife who had none before, and within the -same reason as a provision for a child not before provided for; and as a court of equity would, had this been the case of a copyhold devised, have supplied the want of a surrender, so where there is a defective execution of the power, be it either for payment of debts or provision for a wife, or children improvided for, I shall equally supply any defect of this nature : the difference betwixt a non-execution and a defective execution of a power; the latter will always be aided in equity under tlie circumstances mentioned, it being the duty of every man to pay his debts, and a husband or father to provide for his wife or child. l>ut this court will not help the non-execution of a power, since it is ' "And tho case of Weale and Lower was cited, where tenant in tail had sold at a full value, and received the consideration money, and had covenanted to levy a fine, and was decreed to do it; yet dying (though in prison for con- tempt for not performing the decree) the issue in tail could not be bound l)y it." Cited in Fox v. Crane, 1693, 2 Vern. 304, 30G. This is probably the principal case. 'S. C. iMosely 4C>; 2 Eq. Cas. Abr. 233, pi. 10; 1 Smith's Leading Cases in Kquity, Ft. 1, 3G5, with notes. CHAP, v.] TOLLET V. TOLLET 421 against the nature of a power, wliich is left to the free will and election of the party whether to execute or not, for which reason equity will not say he shall execute it, or do that for him which he does not thinlt fit to do for himself.' ^ In Williams v. Cudd, 1886, 26 S. C. 213, 218, a married woman, having,' pre- viously conveyed the land for value, her husband joining, had attempted to relinquish to her vendee her inheritance. In her relinquishment the word "inheritance" had been omitted frimi the formula "all her estate, interest, and inheritance" which was prescribed by statute. The heirs now sue the vendee for a partition, asserting that the instrument was inefTectual to re- linquish their inheritance. The court found the law as follows: "But it is strongly pressed upon us that, this being a case for partition, the extraordinary jurisdiction of equity may be invoked to consider that done which was intended to be done, and to reform the instrument by adding the word "inheritance," so as to conform to the requirements of the law. We regret to say that we know of no authority to do so, either in law or equity. If this were one of those cases in which the court may interpret executory contracts so as to effectuate the intention, there might be much force in some of the views presented in behalf of the appellant. But clearly this is not one of the cases in which the intention of the parties is a controlling considera- tion. The question is not what was intended to be done, but sharply what was actually done. "It is true, according to the authorities, that there are cases in which the Court of Equity will aid the defective execution of a power, provided the parties really intended to execute it, and only failed in a matter of form, and pro- vided also that the power was created by a will, family settlement, or other similar instrument. But, as we understand it, the Court of Equity will not undertake to do so in respect to powers created by statute. "The doctrine is confined to powers created by the voluntary act of persons in wills, deeds, and settlements ; it does not extend to those created and regulated by statute. The defective execution of statutory powers, in the failure to comply with the prescribed requisites cannot be aided in equity." 2 Pom. Eq. Jur., § 287, and numerous authorities in note. "And, indeed, it may be stated as gen- erally, although not universally true, that the remedial power of Courts of Equity does not extend to the supplying of any circumstance, for the want of which the legislature has declared the instrument void; for otherwise equity would, in effect, defeat the very policy of the legislative enactments." 2 Story Eq. Jur., § 177, and note. "This is specially true in regard to statutory powers given to married women, who, outside of the enabling act, are entirely without capacity. "As it is incompetent to show by parol that all the requirements of the law were complied with by the officer taking the acknowledgment, it follows that a Court of Equity has no power to act upon such evidence or to correct or amend a defective certificate. The sufficiency of the acknowledgment is to be determined solely by what appears upon the certificate. 2 Scrib. Dower, 344, 345 ; Stewart Husb. & Wife, §§ 376, 404, and notes ; Knowles v. McCamly, 10 Paige 342. In this latter case it was held, that 'when the legal estate is in a feme covert, her deed or contract, conveying or agreeing to convey such estate, if not acknowledged by her according to the statute, is void in equity as well as« at laWj' etc." 1422 OSGOOD v. FRANKLIN [part i. And in this case, the legal estate being in trustees, they were decreed to convey an estate to the widow for life in the lands devised to her by her husband's will. Osgood v. Franklin, 1816, 2 Johns. Ch. 1, 19.— The Chancellor [Kent]. 1. The first question arising on the merits is, whether Mary Osgood, as sole surviving executor of Walter Franklin, deceased, was authorized to sell the real estate. The part of the will of Walter Franklin relating to the question is as follows: "The xvhole residue of my estate I give and bequeath as follows : one eighth to Sarah Corsa, &c. ; one eighth to Mary Wister, &c. ; to ray wife, one eighth, &c. ; to my daughters, Maria and Sarah, each one eighth; to my brothers, John, Thomas, and Samuel, each one eighth, &c. And / order that the money or effects he distrihiited and divided from time to time, as it can be raised from my debts and estate by my ex- ecutors, hereafter named, &c. ; and they are to keep a sufficiency un- divided, to pay off all legacies, and to keep the estate as much on interest or rents as they can for the general benefit. And I appoint my wife with my three brothers aforesaid to be executors, but on this condi- tion, that if they owe me any money at my decease, their appointment, or acting as executors, shall not be a release of their debts, but the same shall be paid; and if they do not act on this condition, they are not to be executors. 1 give to my executors that (they) may act, and to the major part of them, their heirs or executors, full power to sell any or all my real estate not already devised, &c. I give to each of my ex- ecutors who shall act, 2001. in lieu of all other commissions and re- wards, &c." If the case turned upon the dry question, whether by the common law a naked power without interest to executors to sell, would survive, I should deem the authority of Lord Coke decisive. He lays down the rule repeatedly in his Institutes, (Co. Lift. 112. b. 113. a. 181. b.) as one well established, that the yjower would not survive; and the same law was declared by Dodderidge, J., the contemporary of Coke, and author of the Touchstone. (Shep. Touch, tit. Testament, pi. 9. p. 429.) These writers were, in their time, and have been in every period since, regarded as oracles of the common law, and they must have been familiar with the old authorities. I do not, therefore, consider the observations of Mr. Ha^-grave, (Co. Litt. 113. a. note.) even after giving them ;ill the wo'^ilit justly due to bis talents and learning, as being sufficient to overturn a rule so strongly established; and especially when it has been shown by Mr. Powell. (Treatise on Devises, p. 292-310.) that he is by no moans borne out by the cases to which he refers. The statute of 21 Hon. VIII. c. 4. affords no small confirmation of the doctrine in Coke; for the preamble declares the opinion that a sale by executors under a power in a will " cjui in no wise be good or effectual in the law, CHAP, v.] OSGOOD V. FRANKLIN 423 unless the same bargain and sale be made by the whole number of the executors named to and for the same." But while I thus acknowledge the rule of the common law, I am equally satisfied that this cause is not governed by it. In the first place, this case comes within the exception stated by Lord Coke; for here wag an interest sufficient to feed the power, and keep it alive in the hands of the surviving executors. The executors were vested by the will with an absolute interest in an undivided moiety of the whole residuary es- tate, on which the power was to operate, and they were also directed to keep the whole of this residuary estate as much as possible on interest, or rents, for the general benefit. This authority to lease, and this interest in the subject itself, must be sufficient to exempt the power from the character of a mere naked authority to a stranger. It is not necessary that the interest coupled with the power should be a legal interest. An equitable estate is sufficient, and is regarded in this Court as the real interest. So it was held by Lord Hardwicke in Hearle v. Greenbank; (3 Atk. 714.) nor does the character of the power depend upon the quan- tity of interest. A trustee invested only with the use and profits of the land for the benefit of another, has an interest connected with his power. This was so understood in Bergen v. Bennett, (1 Gaines's Cases in Error, 16.) and in Eyre v. Countess of Shaftsbury, (2 P. Wms. 102.) a testa- mentary guardian, with authority to lease, was held to possess a power coupled with an interest, and capable of survivorship. In the next place, here was a trust charged on the executors, in the direction given to them to distribute the proceeds of the residuary estate ; and according to the settled doctrine of the Court, the trust does not become extinct by the death of one of the trustees. It will be continued in the survivor, and cannot be permitted, in any event, to fail of execu- tion for want of a trustee. In this case, one of the trusts under the will depended upon a sale. In Garfoot v. Garfoot (M. 15 Car. II. 1. Ch. Cas. 35.) lands were devised to the wife for life, and then to be sold by the executors, for younger children's portions, and the wife and ex- ecutors died, and the younger children exliibited their bill to compel the heir to sell ; and on demurrer by the heir, on the ground that the executor had but an authority which died with him, the demurrer was overruled. So, also, in Barnes's case, (Sir Wm. Jones, 352. Cro. Car. 382. S. C.) lands were devised to the wife for life, and then to be sold by the ex- ecutors for payment of debts and legacies, or as one of the reports of the case says, to be divided among the nephews. One of the executors died, and it was held, on a case sent from chancery for the opinion of the judges at law, that the survivor could sell, though the executors had an authority, and no interest. Whatever, therefore, might have been the character of the power in this case, the strict rule of the common law could never be permitted, in this Court, to defeat the trust connected with the execution of the power. Wliether the residuary legatees might not have come in and taken the land itself, instead of the proceeds 424 OSGOOD v. FRANKLIN [part i. which the executors, as trustees, were to distribute, and thereby have arrested the execution of the power to sell, is a iwint not now before me. No such application was ever made; the power to sell was left by the legatees to its full operation ; and they come too late, after the sale, to make their election, or to raise such a question. Either of these grounds appears to me to be sufficient to support the sale by Mrs. Osgood, as the sole surviving executor. There are other considerations, also, which add great weight to this conclusion. The intention of the testator is much regarded in the construction of these powers, and they are construed with greater or less latitude in ref- erence to that intent. It was evidently the testator's intention here, that the power should not fail as long as there was an executor to execute it, for the power is given even to the major part of the acting executors, and it was to descend to the legal representatives, both real and personal, of the executors. In other words, it was made transmissible by descent and by will; and though it is left doubtful as to the portion of the ex- ecutors from whom that transmission was to proceed,. I should take the better opinion to be, that it was to proceed, as in the case of other joint interests or trusts, from the last survivor, and that the testator could not have intended such incongruity and confusion as the union of the heirs and executors of a deceased executor with the surviving executors. The testator had also in contemplation the possible case of his wife act- ing alone; for he imposes a condition upon the other executors, without complying with which they were not to be considered as appointed. I am satisfied, for these reasons, that it would be repugnant to the in- tention of the will, to the rules of law, and to the principles of this Court, to defeat a power uniting so much trust, confidence, and interest, by applying to it the strict doctrine of the common law, relative to mere naked authorities.' ^ "Mj'. Sugden infers [2 Siigd. on Pow. 173], from the authorities, that although equity will supply the defective execution of a power in proper cases, yet it is an immutable rule, that a non-execution shall never be ?,ided; nor is it a ground for relief that the party was prevented by death from an in- tended execution. . . . "But when there is a trust the court will interfere. In Brown v. Higgs, 8 Ves. .574, Lord Eldon states the principle of all the cases on this subject to be, that if the power is one which it is tlie duty of the party to execute, made his duty by the requisition of the will, put upon him as such by the testator, who has given him ayi interest extensive enough to enahle him to discharge it, he is a trustee for the exercise of his power, and without discretion whether he will exercise it or not; and the court adopts the principle relative to trusts, and will not permit his negligence, accident, or other circumstances, to disappoint the interest of those for whose benefit he is called ujjon to execute it." Per Johnston, Ch., in Withers v. Yeadon, 1845, 1 Kich. Eq. 324. CHAP, v.] BEEWER V. IIEEBERT. 425 BREWER V. HERBERT. In the Court of Appeals of Maryland, 1869. [30 Maryland 301.] Miller, J., delivered tlie opinion of the Court.' After the execution of the written contract for the sale of the house and lot, and before the day fixed for delivery of possession and payment of the first instalment of purchase money, the house was accidentally destroyed by fire, without fault of either party or of the tenant then in possession of the same. The vendor had a fee simple title to the property, and at the proper time, under the contract, offered to deliver possession of the premises in the condition in which they then were. This the vendee refused to receive because of the destruction of the house by fire, and the main question in the case is, can he on this ground successfully resist this application in equity by the vendor for a specific performance of the contract ? In contracts of this kind between private parties, the vendee is in. equity the owner of the estate from the time of the contract of sale, and must sustain the loss if the estate be destroyed between the agree- ment and the conveyance, and will be entitled to any benefit which may accrue to it in the interim. This doctrine, notwithstanding the dictum in Stent v. Bailey, 2 P. Wms. 290, to the contrary, was plainly an- nounced and settled by the decision of Lord Eldon, in Paine v. Meller, 6 Ves. 349, a case very similar in its circumstances to the present, where it was held that if there was no objection to the title of the vendor, or it had been accepted in fact by the vendee before the houses were burned, no solid objection to the bill for specific performance could be founded on the mere effect of the accident before conveyance : ''for if the party," says the Lord Chancellor, "by the contract has become in equity the owner of the premises, they are his to all intents and purposes. They are vendible as his, chargeable as his, capable of being encumbered as his; they may be devised as his; they may be assets; and they would descend to his heir." This decision has always been regarded as fixing the true equitable rule in such cases. It was recognized by Sir Thomas Plumer, in Harford v. Purrier, 1 Madd. Ch. 287, and in Rawlins v. Burgis, 2 Ves. & Bea. 387, and by Lord Chancellor Manners, in Revell v. LIussey, 2 Ball & Beatt. 287. From these and other authorities of equal weight annovmcing the maxim that equity regards as done that which, was agreed to be done, is deduced as the established doctrine in equity, that from the time the owner of an estate enters into a binding agree- ment for its sale, he holds the same in trust for the purchaser, and the latter becomes a trustee of the purchase money for the vendor, and being *A statement of facts and arguments of attorneys have been omitted. 426 BREWER v. HERBERT [part i. thus in equity the owner, the vendee must bear any loss 'fhich may happen, and is entitled to any benefit which may accrue to the estate in the interim between the agreement and the conveyance. 1 Sug. on Vend. 228, 388 to 391: 2 Powell on Cont. 69; Dart on Vend. & Pur- chasers, 114 to 118; 2 Story's Eq., sec. 1212. The contract here is not for a sale at a future day; it does not use in this respect prospective or contingent terms. Its language is, the vendor ^^has this day sold tu" the vendee his house and lot, which clearly imports a binding contrae^, ihen executed and consumated. By such terms the title in equity passe.* from the date of the contract, and if there were nothing else in it thert- would be no room for argument, for it would be impossible to withdraw* the case from the operation of the rule above stated. But it has been earnestly and strenuously urged by the appellant's counsel, that as the contract contains an agreement by the vendor to deliver possession of the house and lot to the vendee, on the first of April, 1866, the destruction of the house by fire before that period, rendered performance by the vendor of this part of the contract impossible, and he cannot, therefore, either in law or equity ask the vendee to perform his part of it; and this circumstance, it is insisted, distinguishes the case from those cited and prevents it from falling within the principle established by them. Let us test the soundness of this argument. The vendee knew before and at the time of the contract there was a tenant in possession, whose term would not expire until the first of April, and the first instalment of the purchase money is made payable on, and in- terest on the deferred payments runs from that day. The subject matter of sale is realty — a lot of ground with a house upon it, described as a house and lot. The agreement as to delivery is not like the usual cov- enant by a tenant in a lease, to deliver in as good condition and repair as when the contract was made. There is also no difficulty about delivery, except that the premises were not, as to the buildings upon them, in the same condition as at the date of the contract. The question then resolves itself into this, does the fact of the insertion into a contract like the present for the sale of real estate, of an agreement to deliver posses- sion at a future day, make any difference in the application of the rule ? It is true it does not appear in the cases cited there were in the con- tracts any stipulations as to delivery of possession at a future day, nor is this circumstance alluded to, but they explicitly say it is the passing of the title in equity which throws the risk of loss upon the vendee, and entitles him to accruing benefits. To this, as we have seen, a convey- ance is not necessary, nor is payment of the purchase money or any part of it; for in TTampson v. Edelen, 2 II. & J. 66, this Court has decided that ^'a contract for liiiid J)nna fide made for a valuable consideration, vests the equitable interest in the vendee from the time of the execution of the contract, although the money is not paid at that time." See also Siter, James & Co.'s Appeal, 26 Penn. State, Rep. 180. Neither can possession nor delivery of possession be necessary, for if the contract had been silent CHAP, v.] BREWER V. HERBERT 427 on this subject, the vendor would have had the right to retain possession at least until the first of April, when the first instalment of the pur- chase money was payable, and if the vendee had obtained possession be- fore, he would have been restrained in equity from exeroisinpr any acts of ownership prejudicial to the inheritance; (Crockford v. Alexander, 15 Ves. 138; Reed v. Lukens, 44 Penn. Rep. 202) and yet the equitable title would all the while have been in him, subject to his disposition by deed or will, and liable for his debts. If then in the absence of a stipulaton to deliver at a future day, there is an implied right in the vendor to retain possession until that period, and this would make no ■difference as to the liability of the vendee for an intermediate loss, how can the insertion of such a stipulation have in equity any different effect? The whole foundation of this doctrine of equity is that the equitable title and interest passes by the contract of sale, and from the time of its execution, and it contemplates delivery of possession as well as pay- ment of purchase money, and a conveyance at a future period. Hence, Sir Edward Sudoen and Sir Thomas Plumer both cite, as in exact accord with the decision of Lord Eldon, the rule of the civil law, where the very case is put in the Institutes : "Cum autem emptio et vendiiio <;ontracta sit, periculum rei venditce statim ad emptorem periinet, tametsi adhuc ea res emptori tradita non sit: Itaque, si cedes total vel aliqua ex parte incendio consumptw fuerint — emptoris damnum est, cui necesse est, licet rem non fuerit nactus, pretium solvere." In sales of personal property, delivery of the goods sold is not necessary to pass title as between the parties, where the statute of frauds has been gratified by 4?iving something in earnest, or payment of the whole or part of the purchase money, or a sufficient note or memorandum in writing of the bargain; and in such case the property is at the buyer's risk before de- livery. Franklin & Armfield v. Long, 7 G. & J. 418. And even where the seller remaining in actual possession agrees to deliver the property at a particular place, and it is destroyed by fire before such delivei-y, the loss will fall on the purchaser. Terry v. Wheeler, 25 N. Y. Rep. 520. Where sales are made under authority of a Court, the contract is not regarded as consummated until it has received the Court's sanction or ratification, and, therefore, any loss happening before confirmation falls upon the vendor. Ex parte Minor, 11 Ves. 559 ; Wagner & Marshall v. Cohen, 6 Gill, 102. But where a loss occurs after confirmation, by which the contract is consiimmated, it falls upon the vendee, even though no purchase money has been paid, and the vendor remains in possession. This was expressly decided in Robertson v. Skelton, 12 Beav. 260, where Lord Langdale also said : "In equity the estate belongs to the purchaser from the date of the order to confirm the report, and the right of pos- session belongs to the vendor till the purchase money, for which it is security, has been paid." Again, if we look to the contract itself, and gather therefrom the intent of the parties, it is clear from the language used, their intention was that the equitable title and interest should pass 423 BEEWER v. HERBERT [part i. from the day of its execution. Upon this point its terms are too positive and explicit to admit of doubt. Delivery of possession and payment of purchase money were postponed to a future day for the convenience of each party respectively, and we cannot construe the agreement to deliver, into a condition that the contract shall be void if there is any change in the state or value of the property on the day of delivery, nor interpolate any such words into the instrument. We are, therefore, constrained to hold the argument founded on this delivery clause, to be unavailing to the appellant. But it is said specific execution of contracts is in all cases not a matter of absolute right, but of sound discretion in the Court, and as the vendor cannot now deliver the house which was the main inducement to the vendee to buy, and constituted the chief value of the property, it would be inequitable to enforce the contract as against him. If this objection were sound, this doctrine of losses and benefits could never have been established. But whilst it is conceded an application for specific performance is always addressed to the sound discretion of the Court, yet where a contract respecting real estate is in writing, and is in its nature and circumstances unobjectionable, it is as much a matter of course for a Court of equity to decree a specific performance of it, as it is for a Court of law to give damages for a breach of it. Smoot v. Rea & Andrews, 19 Md. 405; 2 Story's Eq. sec. 751. "The fairness or hardship of a contract like all its other qualities, must be judged of at the time it was entered into, not by subsequent events." If it was then certain, mutual, fair in all its parts, and for an adequate consideration, it is immaterial that by force of subsequent circumstances, it has become less beneficial to one party unless such change is in some way the fault of the party seeking its specific execution. Revell v. Hussey, 2 Ball. & Beatt. 288; Lawder v. Blachford, Beatty's Rep. 526; Webb v. Railway Co. 9 Hare, 129; Low v. Treadwell, 3 Fairfield, 541; Fry on Specific Performance, 93, 98. Adherence to principle compels the Courts to overlook the hardship of particular cases. But the doctrine upon which this decision rests, is founded in strict justice and equity, for whilst the vendee may think it hard to be compelled to pay for that which he can- not have in the condition it was when he purchased it, the vendor, with equal justice, might think it hard to lose his money after a bona fide sale of his property, because of an accident accruing to it without fault on his part. It is to be remembered too that whilst the rule burthens the vendee with a loss, it also entitles him to all benefits. Thus where a reversionary interest is agreed to be purchased and lives drop, or one agrees to pur- chase an estate in consideration of a life annuity to the vendor, and the cestui que vie dies, or whore there is a sudden rise in the value of the land from its being required for a public purpose, before conveyance, in all such cases the vendee reaps the benefit. So in the case before us, if a valuable mine had been discovered on the premises the day after the contract, or by any unforeseen or unexpected circumstances their value CHAP, v.] BREWEK V. HERBERT 429 had been increased a hundred fold, the benefit would have resulted to the vendee, and the vendor could not have been released from his con- tract. We cannot therefore, sustain this objection to the bill. It appears that at the date of the contract the vendor held a policy of insurance upon the house, which by accident he allowed to expire without renewal before the fire, and of this the vendee received from him no notice. A similar state of facts existed in Paine v. Meller, and was held to constitute no objection to the vendor's bill. It is admitted there was no understanding between the parties that the vendor should keep the policy alive. They did not contract on any such basis. After the contract the vendee had an insurable interest in the house and in the absence of all agreement on the subject, the presumption is, he intended to protect himself by insuring in his own name, or to take the risk of a failure to insure. The vendor was not bound to keep up the insurance or give notice to the vendee of its having expired. If the policy had existed at the time of the loss, the vendor could have recovered from the insurance company, but being trustee of the premises for the vendee, he would be bound in equity to account to the latter for the money so received (Reed v. Lukens, 44 Penn. Rep. 200) ; but his failure to renew or to give notice cannot deprive him of his right to enforce the con- tract of sale. It also appears there was at the date of the contract a judgment against the vendor for $2,363.38, but he had at that time entered an appeal from the judgment to the Court of Appeals, and given an appeal bond with security amply sufficient for that purpose to pay the amount of the judgment with costs, in case he should fail to prosecute his appeal with eifect. The authorities are clear that equity will not compel a vendee to take an imperfect or defective title, yet cases of high authority are to be found in which a pecimiary charge against which adequate security has been given, has been held not to constitute a defect in title, and also where equity has enforced the agreement where a perfect title can be made at the time of the decree. But this judgment thus appealed from, with appeal bond given, does not in the sense in which Courts of equity use the terms, make this such an imperfect, or defective, or encumbered title, as will prevent specific execution, and especially not where the decree itself, as that appealed from in fact does, can pro- tect the vendee by providing that the judgment debt may be paid by him out of the purchase money due on the contract and in discharge thereof. We have bestowed upon the case our best care and consideration. We find nothing in the authorities cited by the appellant's counsel sufiScient to overthrow the doctrine upon which we have based our decision, and can discover no ground upon which in justice and equity, the appellee can be denied the relief he seeks. The decree must be affirmed. Decree affirmed. 430 PUSEY V. SIR EDWAED DESBOUVRIE [part i. Section 2. Mistake. PUSEY V. SIR EDWARD DESBOUVRIE. In Chancery, defore Lord Chancellor Talbot, 1734. [3 Peere Williams 315.] ' Sir Edward Desbouvrie was a freeman of London, and possessed of a very great personal estate. He had a wife, with whom he had com- pounded as to her customary part, and had a son (the defendant) to whom he had given very considerable sums of money in order to enable him to trade. He had also one daughter. The father made his will, giving (inter al.) to his daughter £10,000, upon condition that she should release her orphanage part, together with all her claim or right to his personal estate by virtue of the custom of the city of London, or otherwise, and made his son executor, his daughter being about the age of twenty-three years. After the father's death it was agreed between the daughter and the brother that she should accept of her legacy of £10,000, and upon the terms whereon it was given her by her father's will, that is, she to release all her right by virtue of the custom, etc., which release was accordingly prepared, and before she executed it, her brother informed her that she had it in her election to have an account of her father's personal estate, and to claim her orphanage part, and her uncle was then present. But the daughter at that time declared she would accept of the legacy left her by her father, that being a sufficient provision for any young woman ; and thereupon she executed the release, being then about twenty-four years old, and the brother paid to her the £10,000 and interest. The daughter afterward married one Mr. Pusey, an attorney at law, who brought a bill to set aside this release, charging that the personal estate of which the father died possessed was much above £100,000, the daugh- ter's share of which by the custom would amount to upward of £40,000, that the mother having been compounded with for her customary part, the freeman's personal estate was to be distributed as if there was no wife, consequently the dead man's part was one moiety, and the children's part the other; and that the brother, the defendant, Sir Edward Desbou- vrie, had been advanced in his father's lifetime by his father at different times with several great sums of money, the whole whereof would amount to a full advancement of the son; so that the plaintiff Pusey, in right of the daughter his wife, was entitled to a moiety of her father the freeman's personal estate. The defendant the brother pleaded this release. Against which, on behalf of this plaintiff, at first it was argued that as the bill was brought to set aside the release, the defendant ought not to be admitted to plead it in bar, the rule being, von potest adduci ex- * Same case is more briefly reported in 2 Equity Cases Abridged, 270, pi. 24. CHAP, v.] PUSEY V. SIR EDWARD DESBOUVRIE 431 ceptio ejusdem rei cujus petitur dissolutio. But the Lord Chancellor here interrupted the counsel, saying, this was every day's practice; and that otherwise no release or award could be pleaded to a bill that was brought to set aside the same. Then it was urged that no computation or account had as yet been taken of the father's personal estate, and that it could not be imagined the daughter intended to present her brother with £30,000, or that she knew what her right was ; that she was not apprised that, by reason of her mother's being compounded with, the children's share, instead of a third, was a moiety; or that her brother, the defendant, being fully advanced by his father in his lifetime, this was a bar to him of his orphanage part; and though at law it was said ignorantia juris non excusat, yet if any one should take advantage of another's mistake in the law, even without any fraudulent suggestion or practice made use of by him, it would be against conscience so to do, and they put this case : Suppose A should devise lands to B and his heirs, and B should die in the life of the testator, and then the testator dies, after which the testa- tor's heir, not knowing that by law the devise to B is void (by B's dying in the life of the testator) should for a trifle release his right to a val- uable estate to the heir at law of such devisee ; surely such release would not stand good ; and as it was out of the father's power by devise or otherwise to debar any of his children of that share which they are entitled to by virtue of the custom; so here it was somewhat hard in the father to induce his daughter by any words in his will to give away and release what she had an undoubted right to; and admitting there was no direct fraud or misrepresentation, here was, however, suppressio veri. though not suggestio falsi; and in this case, since it would not be pre- tended that the daughter could have meant to give away £30,000 to her brother, though he had asked for it, therefore this release ought not to be made use of in a court of equity to bar the daughter of that right which she did not know she herself had, and much less intended to give away. On the other side, it was said to deserve consideration that the father did by his will give this legacy of £10,000 to his daughter, upon condition that she should release all her right by the custom ; and though it could not be said here was a positive injunction on the daughter to do so, yet in all probability it was intended as a recommendation by the father, who might think £10,000 a reasonable and honorable provision for the daughter, as she herself declared she thought it was when she gave this release ; and the father might be desirous that his son, who was to support his name, should have the rest of his estate; that the daughter might reasonably have a great regard for the intentions of her deceased father (for which she was highly to be commended) and might thereby be induced to comply with such intention, at the same time that she knew in strict justice there was more due to her by virtue of the custom. That however it was plain the brother had acted in this case without 432 PUSEY V. SIE EDWAED DESBOUVRIE [part r. the least appearance of fraud when he told her, before she executed the release, that she might, if she pleased, call him to account for the whole personal estate of her father, and have her orphanage part thereof; that this being the solemn act and deed of the party, executed by her freely and without any sort of compulsion or misrepresentation, and in compli- ance with her own father's will; and since, if the daughter was not informed of the custom of London, it was her own fault and not her brother's; for these reasons it was said the deed of release ought not to be set aside. Lord Chancellor. I do not see that any manner of fraud has been made use of in this case, but still it seems hard a young woman should suffer for her ignorance of the law, or of the custom of the City of London ; or that the other side should take advantage of such ignorance. T remember well that in this very case where the wife has been com- pounded with as to her customary part, not only the counsel have differed, but the court themselves have varied in their determinations. It has for instance been held and determined by the court that if the husband, a freeman of London, has compounded with the wife before the marriage as to her customary part, this being the husband's own pur- chase, he ought to have as well his wife's customary part as his own ; but now a different resolution seems to have prevailed, viz., that where the wife is compounded with before marriage, it should be taken as if there was no wife, and consequently the testator shall have one half and the children the other. And if the court themselves have not, till very lately, agreed in what shares or proportions these customary parts shall go, the daughter surely might be well ignorant of her right and ought not to suffer, or give others any advantage, by such her ignorance. Neither can it be inferred with sufficient certainty what the father recommends in this case; he rather seems to leave it to his daughter's option, either to claim her customary part or release her right thereto and accept the legacy. It is true, it appears, the son, the defendant, did inform the daughter that she was bound, either to waive the legacy given by the father or to release her right by the custom; and so far she might know that it was in her power to accept either the legacy or orphanage part ; but I hardly think she knew she was entitled to have an account taken of the personal estate of her father, and first to know what her orphanage part did amount to ; and that, when she should be fully apprised of this, then, and not till then, she was to make her election, which very much alters the case; for probably she would not have elected to accept her legacy had she known, or been informed, what her orphanage part amounted unto before she waived it .iikI accepted the legacy. It would give light into this cause to know what might be the value of the father's personal estate at his death, and (if the parties think fit) what was the value thereof when the will was made; because it has been said to have been increased by the father between the time of making his CHAP, v.] LAMMONT'S HEIRS v. BOWLY'S HEIRS 433 will and his death; and also to know what the son has received in his father's lifetime from his father for or toward his advancement. Therefore let the plea stand for an answer, saving the benefit thereof until the hearing; and let the defendant, the son, answer not as to par- ticulars (for that I do not expect) but by way of computation in gross as to these points.' LAMMONT'S HEIRS AND DEVISEES v. BOWLY'S HEIRS. In the Court of Appeals of Maryland, 1825. [6 Harris v. Johnson's 500.] One William Lux by his will, devised to Agnes Lux, his wife, "for and during her natural life, my tract of land called Chatsworth, with the dwelling house, and all the buildings and improvements thereon (save and except the rope- walk). And I give to my son George Lux, his heirs, &c., my tract of land called Chatsworth, &c., but in case my said son should die before he attains of legal age, and without issue, then I be- queath the said land to my son's wife and her assigns to be at her own will and disposal, as it originally was (save and except five acres to be laid oif in a long square, &c., and that said five acres, together with the rope-walk and all the buildings, &c., I give to my nephew and partner, Daniel Bowly, his heirs,") &c. Daniel Bowly, the nephew, believed that he had no title to the five acres, unless George Lvix, the testator's son, died ivithin age and without ■issue, and on his having issue, supposed the son to have a clear title to the five acres. Under that impression he was privy to a sale of that part of Chatsworth by George Lux, to Daniel Lammont (ancestor of the com- plainants), for a fair and valuable consideration, and permitted Daniel Lammont to take possession of it and to enjoy it for many years un- molested. Afterwards being advised that the effect of the devise was to give him these five acres, independent of the contingency of George Lux's coming of age, or dying ivithout issue, he instituted an ejectment for them and recovered. Whereupon the purchaser, Lammont, filed his bill to stay proceedings at law. From the decree of the Baltimore County Court, sitting as a court of equity, dismissing the bill the complainants appealed.^ ' It appears from the Register's book that on the 8th of May, 1735, upon the defendant's motion it was alleged, that the suit was agreed between the parties; it was therefore prayed that the plaintiflF's bill might be dismissed without costs; which on consent of the plaintiff's counsel was ordered ac- cordingly. — Reporter's note. " The statement pf the case is shortened. 434 LAMMONT'S IIEIES v. BOWLY'S HEIRS [part u Williams, Taney and Harper for the appellants. R. Johnson and Wirt (Attorney-General of U. S.) for the respondents. Stephen, J., delivered the opinion of the Court/ The complainants, who are representatives of Lammont, filed a bill on the equity side of Baltimore county court, to obtain an injunction to stay proceedings at law, and to have a conveyance of all the right and title of Bowly's representatives, to the purchases made by Lammont in his life-time, executed to them. The county court, with the consent of the parties, decreed pro forma a dismissal of the complainant's bill, with costs to the defendants; from which decree the defendant's have ap- pealed to this court. The question now to be decided is, whether or not they have shown sufBcient grounds of equity to entitle them to the relief, which they come here to obtain ? And whether they are so entitled, depends upon the agency which Bowly had in the purchases made by their deceased ancestor, and the knowledge he had of his rights at the time they were made. The principle involved in the decision of this question is an important one, as well on account of its immediate bearing upon this case, as of the influence and operation it may hereafter have in deciding questions of title which may arise under similar circumstances. The question presented for the decision of this court is simply this, whether a man, having a legal title to a parcel of land, but who is igno- rant of his right, forfeits his title to that land, by concealing his right, when he knows that another is abovit to purchase it from a third person ? And this question is to be decided upon the principles of equity and con- science, which can never inflict a punishment upon innocence, or decree a forfeiture, when there has been no fault. On the contrary, it is at all times the anxious wish of a court of chancery to relieve against for- feitures and penalties, where the principles of justice and equity do not forbid it. Has then the conduct of Daniel Bowly been such as to merit the infliction of punishment at the hands of this court? Because a punishment it is termed by the authorities which treat upon the sub- ject, and they speak of the forfeiture as a punishment inflicted by reasoia of the guilt of the party in not disclosing his right. It would, at the first blush, seem quite siifficient to ask, how can a man disclose a title of Avhich he has no knowledge ? To the common sense of the world this would seem to be an impossibility, and the law, which is a system of written reason, never enforce? a vain or impossible thing. It is proved by all the witnesses who speak upon the subject, that they never heard of Bowly's claiming any title to the property in question, until long after the purchases were made by Lammont, and all of them were his neighbours, and some of them his most intimate friends. Nor is it a matter of surprise that Bowly was unacquainted with the operation of law upon that clause of William Lux's will, under which his representa- tives now claim title to the property in controversy, since it appears that the judicial tribunals of the state entertained different opinions upon the- ' Only a part of ilu; opinion is given. CHAP, v.] LAMMONT'S HEIRS v. BOWLY'S HEIRS 435 true construction of it, aided as they were by all the lif;hts of science in their exposition of it. It may then be safely asslamed to have been at least a doubtful question, and one upon which it is not unreasonable to say, that Bowly might have been in the dark. If then he was ignorant of his title, what says the law upon the subject? In 1 Powell on Con- tracts, 131, 132, 133, after stating that there might be either an express or tacit assent to a contract or agreement, he says, " a tacit assent may arise in several ways — It may be inferred from inaction, or forbearance of acting. Thus a man, by his silence, in case he be present, and ac- quainted with what is doing, is supposed to give his assent to what is then done; unless it appears that he was awed into silence, or any way hindered from speaking." " And in such cases, assent is presumed even against an infant; for it is meant as a punishment for his concealing his right, by which, an innocent person is drawn in to advance his money." If then a tacit assent is imputed to infants, who are peculiarly the objects of a court of chancery's care and protection, it can only be upon the ground of knowing their rights, and a culpable and fraudulent concealment of such knowledge. The same author says, in page 134, " in order to warrant us in concluding from a man's silence, that he has relinquished his right, two things are necessary — The first is, that he should know that what belongs to him is conveying to another; for when one forbears to act through mere ignorance, it can have no eifect " — and " secondly, that he should be voluntarily silent, though he has full liberty to speak." So in 1 Fonblanque, 161 — The author says, " there is also an implied as well as an express assent; as where a man, who has a title and knows of it, stands by, and either encourages, or does not forbid the purchase, he shall be bound, and all claiming under him, by it. Neither shall infancy or coverture be any excuse in such case. And this seems a just punishment for his concealing his right, by which an innocent man is drawn in to lay out his money." It is then upon the principle, that the party committed a fraud by concealing his right, that he becomes bound, and all claiming under him. In Niven vs. Belknap, 2 Johnson's Rep. 589, the same principle is recognized by Thompson, Justice, that where a man has a title, and knows of it, and either encourages, or does not forbid the purchase, he, and all claiming under him, shall be bound by such purchase; and in support of his opinion he refers to 1 Fonblanque, 161. In Levy vs. The Bank of the United States, 1 Binney's Rep. 27, the case was this; a forged check was credited as cash in the holder's bank book, and he being afterwards informed that the check had been forged, under a mistake of his legal rights, agreed that if the check was a forgery, he would not take advantage of the deposit. Shippen, chief justice, decided, that the party was not bound by his agreement, it being made under a mistake of his right. In this case the chief justice says, " the case of Penn and Lord Baltimore is decisive to this point. I was present at the agreement half a century ago, and heard Lord Hardwicke say, though it is not mentioned in the printed report, that if Lord 436 LAMMONT'S HEIES v. BOWLY'S HEIES [part i. Baltimore made tlie agreement in question, under a mistake of his right to another degree of latitude, he ought to be relieved, but that he was not mistaken." In Green vs. Price, 1 Munford, 453, Judge Tucker lays down the law to be, that if a man has an equitable title to lands, and knows of it, and either encourages, or does not fori)id the purchase, he, and all claiming under him, shall be bound, by it; and in support of his opinion he refers to 1 Fonblanque, B. 1 ch. 3, s. 4. Thus it appears, that some of the most enlightened and eminent judges of our country, liave given their sanction to the doctrine, that a party is not bound by his silence, unless he has a knowledge of his right, and fraudulently conceals it where he ought to speak. In Bize vs. Dickason, 1 T. R. 285, Lord Mansfield in delivering the opinion of the court, is reported to have said, ''the rule had always been, that if a man has actually paid, what the law would not have compelled him to pay, but what in equity and con- science he ought, he cannot recover it back again in an action for money had and received. But where money is paid under a mistake, which there was no ground to claim in conscience, the party may recover it back again by this kind of action." Evans, in his essays, treating upon mis- takes of law, lays down the law to be, that where no natural obligation intervenes, even what is paid under a mistake in law, may be recovered back; and he refers, in support of his opinion, to certain decisions of Lord Kexyon and Lord Mansfield, to the same effect, and observes, that he conceives it may now be positively stated, that this opinion is adopted in the English law. In Evans vs. Llewellyn, 2 Brown's Chancery Cases, 150, it is decided, that a conveyance obtained from persons uninformed of their rights, should be set aside, though there was no actual fraud or imposition. In Hunt vs. Rousmanier, 8 Wheat. 214, the chief justice, in speaking of the case of Lansdowne vs. Lansdowne, says, if it be law, it has no inconsiderable bearing on this cause. There are certainly strong objections to this decision in other respects ; but as a case in which relief has been granted, or a mistake in law, it cannot be entirely disregarded. He then goes on to say — " Although we do not find the naked principle that relief may be granted on account of ignorance of law, asserted in the books, we find no case, in which it has been decided, that a plain and acknowledged mistake in law, is beyond the reach of equity." We have here, then, the high authority of this most distinguished man, and eminent judge, that a party acting under a clear and unequivocal mistake of his legal rights, is entitled to relief in a court of equitable jurisdic- tion ; and that the doctrine of a court of chancery is not, as has been contended, that equity will not administer relief upon that ground, upon the principle that every man is bound to know the law. It is not in- tended to say, that the plea of ignorantin juris would in all instances be available in civil oases, (in criminal it never can be,) because some legal propositions are so plain and familiar, even to ordinary minds, that it would be doing violence to probability to impute ignorance in such cases ; but it is only meant to sa^', that where the legal principle is confessedly CHAP, v.] GILLESPIE V. MOON '437 doubtful, and one about which ifjcnorance may well be supposed to exist, a person acting under a misapprehension of the law in such a case, shall not forfeit any of his legal rights, by reason of such mis- take. So Newland, in his treatise on contracts, says, that mistake or misapprehension of the law, is a ground of relief in equity; as if a man purchases his own estate, and pays for it, the court will order the pur- chase money to be refunded, on the ground that there was a plain mis- take. It appears then, from what has been observed in the foregoing opinion, that some of the most enlightened and celebrated men, whose characters are recorded in judicial history, have given the sanction of their illustrious names to the doctrine, that no man, acting under a plain and acknowledged mistake of his legal rights, shall forfeit those rights, in consequence of such misapprehension. The authorities in support of this princijile, might be multiplied to an almost indefinite extent, but it is deemed unnecessary further to enlarge upon the subject. It is the opinion of this court, that the decree of the court below be affirmed, with costs to the appellees.' Decree affirmed. GILLESPIE V. MOON. In the Court of Chancery of New York^ before Chancellor Kent, 1817. [2 Johnson's Chancery 585.] The Chancellor. The bill is brought to rectify a mistake in the con- veyance to the defendant, which, by an error in the description of the land, conveyed the whole lot, or 250 acres, instead of 200 acres, parcel of the same. The mistake is positively denied in the answer; and it is objected, that patrol proof of the mistake is inadmissible, in opposition to the plain language of the deed, and especially, in opposition to the defendant's answer. 1. Assuming the parol testimony to be competent, the fact of the mis- take, on the part of the grantor, is made out to my entire satisfaction. There are circumstances, independent of the parol proof, that afford pretty strong presumptive evidence of mistake. The deed to Mrs. Mann, in 1799, after mentioning the number and describing the boundaries of the lot, adds, that it contains 250 acres, more or less. The defendant lived on part of the lot, and other tenants occupied other parts of it, at the Tor a vahiable case commenting upon and approving the doctrine of the principal case see Ciunberland Coal & Iron Co. v. Sherman et al., 1863, 20 Md. 117. See also Kearney v. Sascer, 1872, 37 Md. 264; Carpenter v. Jones, 1876, 44 Md. 625. ^ 438 GILLESPIE v. MOON [part i. time of the purchase by the defendant, and the number of acres was a fact likely to be known by the several persons interested in the lot. It is not pretended in the case, that the lot did not contain 250 acres, and when the defendant applied to purchase, it is extremely probable that he and Mrs. Mann equally well knew so important and so notorious a fact, as the number of actual or reputed acres. But the agreement for the purchase, signed by both of them, on the day of the date of the deed, stated that Mrs. Mann had agreed to convey to the defendant, a tract of land containing 200 acres; and the deed itself, which follows, in the description of the boundaries, the words of the former deed to Mrs. Mann, adds containing 200 acres, more or less. Why did it vary, in this particular, from the former deed, and not follow the description throughout? This was a circumstance which would probably attract attention, as soon as the other parts of the description. A purchaser being on the lot, and well acquainted with it, would ordinarily attach much importance to a declaration of the quantity of acres. If the whole lot was intended to have been sold, it is inconceivable why that part of the description, in the former deed, should have been varied in so great a degree, as from 250 to 200 acres, and why the previous agreement, in writing, should speak of a tract of land of 200 acres, instead of the lot itself, well known to contain 250 acres. The two receipts for rents, dated the 8th and 9th of June, 1804, do not appear to me to afford much inference, one way or the other. The first receipt was for the payment of the arrears due from the defendant for his 100 acres, and the second for arrears* from the other occupants. It says, in full for rent for lot 57, occupied hy defendant. This was a loose, and very inaccurate expression, and it is difficult to know what was meant. These receipts appear to me to be of no moment in the case. But if we resort to the parol proof, it is clear and overwhelming, when connected with the inference from the documents, that Mrs. Mann did not intend to sell, and that the defendant did not intend to buy, more than 200 acres, and that the 50 acres occupied by Cable were not in- cluded in the bargain. Elizabeth Crossby was present when the parties were making the contract, and she remembers that Mrs. Mann was positive and absolute in her refusal to sell more than 200 acres, or to sell the part occupied by Cable, and that she assigned as a reason, that Cable held the land under lease. We have also the testimony of several witnesses residing near the land, and who had been long and well acquainted with the lot and with the defendant, who testify to the great value of Cable's part in 1804, and to the confession of the defendant, after his return from making the purchase at New York, that he purchased 200 acres only, and did not purchase Cable's part of 50 acres, hut that he found, afterwards, that his deed included the whole lot. The witnesses, who testify to these confessions and declarations of the defendant, are Josiah Corbet, Jona- than Wood, David Brown, Caleb Brown, Daniel Case, and Jonathan CHAP, v.] GILLESPIE v. MOON 439 Cable. These six witnesses are all unimpeached ; most of them are neighbors to the defendant, and strangers to the plaintiifs, and it is im- possible not to give full credit to such a mass of testimony all going to one point. In addition to this, we have the testimony of David Austin, who was in New York, with the defendant, in June, 1804, and he under- stood from him, at the time, that his business was to purchase 200 acres of the lot. It is also proved by Cable, that the defendant told him, a short time before the purchase, that he was going to purchase 200 acres of the lot. Some of these witnesses falsify the answer in other parts, and prove it untrue as to a matter of fact within the defendant's own knowledge. The answer says, that immediately on receiving the deed, the possession of the whole lot was delivered to him by the tenants, all of whom either surrendered their possession to him, or took deeds under him, and that he offered deeds to all the tenants, and particularly to Jonathan Cable, who refused a deed, and voluntarily surrendered his possession to the defendant. Cable not only contradicts the fact of any such offer to, or surrender by him, but it is proved, by Charles and John Blowers, that the defendant entered forcibly, and took possession of the mill belonging to Cable. .2. It is unnecessary to enter more minutely into the parol proof of the act of the mistake. On that point there is no room for doubt. The only doubt with me is, whether the defendant was not conscious of the error in the deed, at the time he received it and executed the mortgage, and whether the deed was not accepted by him in fraud, or with a voluntary suppression of the truth. That fraudulent views very early rose in his mind, is abundantly proved. He asked Corbet (a witness) if he could not so run the line as to save the lower mill-seat to himself; and he told David Brown that he meant to take counsel, and if he found he could hold the whole lot, he intended to do so, as it was not his fault that the deed was made as it was. It would be a great defect in what Lord Eldon terms the moral juris- diction of the Court, if there was no relief for such a case. Suppose Mrs. Mann had applied for relief, instantly, on discovery of the mistake, and immediately after the delivery of the deed; was there no power in the whole administration of justice competent to help her? It has been the constant language of the Courts of equity, that parties can have relief in a contract founded in mistake, as well as in fraud. The rule in the Courts of law is, that the written instrument does, in con- templation of law, contain the true agreement of the parties, and that the writing furnishes better evidence of the sense of the parties, than any that can be supplied by parol. But equity has a broader jurisdiction, and will open the written contract to let in an equity arising from facts perfectly distinct from the sense and construction of the instrument itself. "It must be an essential ingredient," says Lord Thurlow (1 Bro. 350) "to any relief under this head, that it should be on an accident per- 440 GILLESPIE v. MOON [part i. fectly distinct from the sense of the instrument." I have looked into most, if not all, of the cases on this branch of equity jurisdiction, and it appears to me to be established, and on great and essential grounds of justice, that relief can be had against any deed or contract, in writing, founded in mistake or fraud. The mistake may be shown by parol proof, and the relief granted to the injured party, whether he sets up the mistake affirmatively, by bill, or as a defence. In Henkle v. The Royal Exchange Assurance Company, 1 Vesey, 317, Lord Chancellor Hardwicke said, the Court had jurisdiction to relieve, in respect of a plain mistake in contracts in writing, as well as against frauds in contracts. The same doctrine appears to have been held by him in Simpson v. Vaughan, and in Langley v. Brown, 2 Atk. 31, 203, and by Lord Thurlow in Taylor v. Eadd, cited in 3 Bro. 454; 5 Vesey, 595. So, again, in Baker v. Paine, 1 Vesey, 456, Lord Hardwicke ob- served, "How can a mistake in an agreement be proved but by parol evidence? It is not read to contradict the face of the instrument, but to prove a mistake therein." In Irnham v. Child, 1 Bro. 94, Lord Thurlow said, that a mistake creating an equity dehors the deed, should be proved as much to the satisfaction of the Court, as if it were admitted ; and, afterwards, in Shelburne v. Inchiquin, 1 Bro. 341, 344, he held that parol proof was not incompetent to prove that words taken down in writing were, by mistake, contrary to the concurrent testimony of all parties. Lastly, it was said by Lord Eldon, in the case of The Marquis of Townsend v. Stangroom, 6 Vesey, 328, that it would be very singular, if the jurisdiction of the Court should not be capable of being applied to cases of mistake and surprise, as well as of fraud. He owned that those who undertook to rectify an agi-eement, by showing a mistake, undertook a task of great difficulty, but he could not say the evidence was incompetent, though it was not possible to reconcile all the cases on this question. The cases concur in the strictness and difficulty of the proof, but still they all admit it to be competent, and the only question is, Does it satisfy the mind of the Court? Lord Hardwicke said, it must be proper proof, and the strongest proof possible ; and Lord Thurlow^ that it must be strong, irrefragable proof; and, he said, the difficulty of the proof was so great, that there was no instance of its prevailing against a party insisting that there is no mistake. We are now considering the question of competency, and not of the amount of the parol proof, and it appears to be the steady language of the English chancery, for the last seventy years, and of all the compilers of the doctrines of that Court, that a party may be admitted to show, by parol proof, a mistalce, as well as fraud, in the execution of a deed or other writing. We will next look into the cases for the application of this principle. On bills for a specific performance of an agreement in writing, the defendant has frequently been admittod to show, by parol proof, a mistake in such agreement, and by that means, to destroy the equity of the bill. CHAP, v.] GILLESPIE v. MOON 441 The relief on such bills is said to rest in discretion, and if the de- fendant can show surprise or mistake, it makes the special performTinco of such an agreement unjust. The cases of Joynes v. Statham, 3 Atk. 388 ; the Marquis of Townsend v. Stangroom, G Vesey, 328 ; Rambottom v. Gordon, 1 Vesey & Beames, 165 ; Clowes v. Higginson, 1 Vesey & Beames, 524; and Flood v. Finlay, 2 Ball & Beatty, 9, are all to this point. But this is only one class of cases: there is another class in which the object of the parol proof is to correct mistakes in bonds, deeds of settlements, mortgages, and, generally, in all contracts and agreements, and where the proof is introduced to aid the plaintiff in his bill, as well as to aid the defendant in his defence. Whether such proof be admissible on the part of a plaintiff who seeks specific performance of an agreement in writing, and at the same time seeks to vary it by parol proof, has been made a question. Lord Hard- wiCKE, in Joynes v. Statham, seemed to think it might be done ; but such proof was rejected by the master of the rolls, in Woollam v. Hearn, 7 Vesey, 211. and again in Higginson v. Clowes, 15 Vesey, 516, and when Lord Redesdale said, in Clinan v. Cooke, 1 Schoales & Lefroy, 39, that he could find no decision in which a plaintiff had been permitted to show an omission in a written agreement, by mistake or fraud, he must be understood to refer to the cases of bills for a specific performance of an agreement, which was the case then before him. There are numerous instances in which the plaintiff has claimed and obtained relief, by showing a mistake in the agreement ; and there would be a most deplora- ble failure of justice, if the mistakes could only be shown and corrected when set up by a defendant to rebut an equity. In Henkle v. The Royal Exchange Assurance Company, the bill was brought by the plaintiff to have a policy rectified, so as to charge the de- fendants after a loss, and when, without such correction, they would not be charged. The parol proof was admitted, and because the proof was insufficient and uncertain, the bill was dismissed, though without costs. In Baker v. Paine, the plaintiff sought, by bill, to be relieved from a mistake in articles of agreement, containing a bargain and sale of goods, and the parol proof was admitted, thoiigh objected to, and the articles were rectified. Again, in Watts v. Bullas, 1 P. Wms. 60, a voluntary defective conveyance of land was made good, on a bill by a person holding under it, against the heir of the grantor ; and in Simpson V. Vaughan, 2 Atk. 31, and Crosby r. Middleton, Prec. in Ch. 309, and Burn V. Burn, 3 Vesey, 573, a mistake in a bond was shown by parol proof, on the part of the plaintiffs, and the bond amended, though in two of these cases the obligor was dead, and in the third, the lapse of time had been very great, and the party, against whom the correction was allowed, was a surety. So, in The South Sea Company v. D'Oliffe (cited in 2 Veset', 377, and 5 Vesey, 601) there was a mistake in a bond, given by way of security, by inserting six instead of two months, and the party was relieved, upon evidence of mere verbal communications. 442 GILLESPIE v. MOON [part i. The cases of Randal v. Randal, 2 P. Wms. 4G4; of Cocking v. Pratt, 1 Vesey, 400; of Rogers v. Earl, Dickens, 294; and of Barstow v. Kil- vington, 5 Vesey, 593, were bills filed to rectify mistakes in settlements; in all of them proof aliunde was admitted, though the admission was resisted ; and, in two of the cases, by the defendant, who claimed as heir against the mistake. Defects in mortgages, contrary to the intention of the parties, have also been made good against subsequent judgment creditors, who came in under the party, who was bound in conscience to correct the mistake. 2 Vern. 565, 609; 1 Eq. Cas. Abr. 320, pi. 1; 1 P. Wms. 279. It has been said, that there was no instance of a mistake corrected in favor of a plaintiif, against the answer of defendant, denying the fact of mistake. But I do not understand any of the dicta on this point to mean, that the answer, denying the mistake shuts out the parol proof, and renders relief unattainable, however strong that proof may be. The observations of Lord Eldon, in the case of The Marquis of Town- send V. Stangroom, certainly imply no more, than that the answer is entitled to weight, in opposition to the parol proof; but it certainly can be overcome by such proof. In that very case, the answer denied tlie mistake, yet parol proof was held admissible. The lord chancellor only said, that the evidence must be taken with due regard heing had to the answer, and that it must not be forgotten, to what extent the answer of one of the parties admits or denies the intention. Lord Thurlow said, that there was so much difficulty in establishing the mistake, to the entire satisfaction of the Court, that it had never prevailed against the answer denying the mistake. I am not inclined, on light grounds, to contradict such high authority, but, as I read the case of Pitcairn v. Ogbourne, 2 Vesey, 375, before Sir John Strange, the bill was to be relieved against an annuity bond, and to reduce the sum of 1501. to lOOZ., according to the original understanding and agreement of the parties. The answer denied positively all the circumstances, and every particular of the private agreement, and parol proof, by several witnesses, was objected to and admitted, which falsified the answer, and made out the real agreement to the satisfaction of the Court, and though relief was not granted, it was refused upon other and distinct grounds no ways connected with the question, as to the competency and effect of the proof. It is the settled law of this Court, as was shown in the case of Boyd v. McLean, 1 Johns. Ch. Rep. 582, that a resulting trust may be estab- lished by parol proof, in opposition to the deed, and in opposition to the answer denying the trust. There is no reason why the answer should have greater effect in this than in that case, and there would be muiiifest inconsistency in the doctrines of the Court, if such a distinc- tion existed. The case of Marks v. Poll, 1 Johns. Ch. Rep. 5S-9, which was referred to by the defendant's counsel, admitted, that parol proof CHAP, v.] GILLESPIE v. MOON 443 of mistakes was competent ; and it was held not to be sufficient, in that case, because it consisted of naked confessions of a party, made seven- teen years after peaceable possession, under a deed. The confessions, in that case, were also of a negative kind, and deduced from tacit acquiescence : the party who made them was dead, and the possession had been, for thirty years, under the deed, and there were no corroborating circumstances in aid of the confessions. Surely there is nothing to bo drawn from that case, in opposition to the competency of the jn'oof in this. We have a strong case on this subject, in Washburn v. Merrills, which was decided on the equity side of the Supreme Court of Connecticut, in 1801. 1 Day's Cas. in Error, 139. A mortgagor, in that case, made, by mistake, in 1784, an absolute deed, which he did not discover luitil some time after. The mortgagee got into possession, and, in March, 1801, sold to a purchaser, by a deed with covenant of warranty. In August, 1801, a purchaser under the mortgagor filed his bill, or petition, against the purchaser under the mortgagee, to redeem. The answer set up the statute of frauds as a defence ; and, on the trial, parol proof of the mistake was offei'ed by the plaintifp, objected to and admitted, and the deed established as a mortgage, and a right of redemption decreed. This decree was afterwards unanimously confirmed in the Court of Errors of that state. My opinion, accordingly, is, that the parol proof, in this case, was competent and admissible, and that it establishes, most clearly and con- clusively, the fact of the mistake, as charged in the bill. I am, also, of opinion, that there is no acquiescence here to bar the plaintiffs. Mrs. Mann was but a trustee for one of the plaintiffs, then an infant ; and it is in proof, that when she discovered the mistake, she communicated the fact, as early as 1806, to Joseph Harris, who called upon her, as agent for the defendant, when she told him of her intention to commence a suit in this Court. She died in 1814, and the present suit, by the cestui que trust, was commenced with all due diligence. There is no pretext for the suggestion of any delay, or acquiescence, injurious to the just rights of the plaintiffs. Courts have been liberal on this head. A mistake was rectified, after seven years' acquiescence, in East v. Thornbury, 3 P. Wms. 126, and if Lord Hardwicke refused it in Bell V. Cundall, Amb. 101, it was after a lapse of forty-four years, and where there was a purchaser without notice. Nor has the defendant any equitable claim for compensation for his improvements made upon those fifty acres. They were made by him after he knew of the mistake, and had declared his intention to take advantage of it, and fraudulently carried that intention into effect. Such an allowance would be confounding all moral distinctions, and be giving countenance and sanction to the most flagrant in- justice. I shall, therefore, decree, that the defendant release and convey to the 444 WIIEELEK v. SMITH [part i. plaintiffs, with proper covenants against his own acts, the fifty acres leased to Jonathan Cable, and possessed by him, and that he pay the costs of the suit. Decree accordingly/ WHEELER V. SMITH. In the Supreme Court of the United States, 1850. [9 Howard 55.] The complainant executed a release to the executors of his uncle's will induced thereto by the executors, who assured him that the bequest to trustees for the city of Alexandria, in Virginia, was a valid bequest; whereas, the bequest was void for vagueness and uncertainty. Upon dis- covering that the bequest was void, and that he, as heir at law, was entitled to his uncle's estate, the complainant, Wheeler, filed his bill praying that the release be set aside as inoperative and void. Mr. Justice McLean delivered the opinion of the court.^ It appears from the bill, that the complainant resides in the State of Pennsylvania, and that so soon as he could raise the means of paying his expenses, after he heard of the death of his uncle, he came to Alexan- dria. He had an interview with the executors, and stated to them his ^In Snell v. Insurance Co., 1878, U. S. 95, 89, Mr. Justice Harlan said for a unanimous Court: " "That a court of equity can afford relief in such a case, is, we think, well settled by the authorities. In Simpson v. Vaughan, 12 Atk. 33, Lord Hardwicke said that mistake was 'a head of equity on which the court always relieves.' In Henkle v. Royal Exchange, 1 Ves. Sen. 318, the bill sought to reform a written policy after loss had actually happened, upon the ground that it did not express the intent of the contracting parties. The same eminent judge said: 'No doubt but this court has jurisdiction to relieve in respect of a plain mistake in contract, so that if reduced to writing con- trary to the intent of the parties, on proper proof would be rectified.' In Gillespie v. Moon, 2 Johns. (N. Y.) Ch. 585, Chancellor Kent examined the question both upon principle and authority, and said: 'I have looked into most, if not all. of tlic casos in this branch of equity jurisdiction, and it appears to me established, and on great and essential gi-ounds of justice, that relief can be had against any deed or contract in writing founded in mistake or fraud. The mistake may be shown by parol proof and the relief granted to the injured party, whether he sets up the mistake affirmatively by bill, or as a defence.' In the same ease he said: 'It appears to be the stead lan- guages fif the English Chancery for the last seventy years, and of all the com- pilers of the doctrines of that court, that a party may be admitted to show, V)y parol proof, a mistake, as well as fraud, in the execution of a deed or other writing.' .\nd such is the settled law of this court." '.\ jtiirt nation. 448 ANDREWS v. ANDREWS [part i. Co., 3 Mason, 373; Kilmer v. Smith, 77 N. Y. 226, 232; German & Am. Ins. Co. V. Davis, 131 Mass. 317. For if the plaintiff only was mis- taken, a reformation obviating her mistake would only result in the inequitable consequence of shifting from the plaintiff to the defendant the burden of abiding by a contract which he never made. Hence if the parties differently understood the original agreement as to the identity of the premises, the relief would take on the form of cancellation rather than reformation. Young v. McGowan, 62 Maine, 56, 61.' ^The learned judge found the mistake to be mutual and accordingly de- creed reformation as prayed. '"An action to reform a written agreement rests upon the theory that the parties came to an understanding, but in reducing it to writing, through mutual mistake, or through mistake on one side and fraud on the other, omitted some provision agreed upon, or inserted one not agreed upon. The object of such an action is to so change the instrument, as written, as to conform it to the agreement, as made, by inserting the provision omitted, or striking out the one inserted by mutual mistake. In the ab- sence of fraud nothing can be put in or taken out by the court, unless it was the intention of both parties that it should go in or be left out when the agreement was written. The sole office of such an action 'is to cor- rect mistakes by writing out the contract according to the actual agree- ment.' Thomas v. Harmon, 122 N. Y. 84, 89. Equity will not make a new agreement for the parties, nor, under color of reforming one made by them, add a provision which they never agreed upon and did not want when the contract was written, 'although it may afterward appear very expedient or proper that it should have been incorporated.' When the Avriting expresses the actual agieement it cannot be reformed and a stip- ulation, not assented to, can never be added. Nevius v. Dunlap, 33 N. Y. 676; Bryce v. Lorillard Fire Ins. Co., 55 N. Y. 240, 242; Paine v. Jones, 75 N. Y. 593; Born v. Schrenkeisen, 110 N. Y. 55; Albany City Savings Institution v. Burdick, 87 N. Y. 40; Paine v. Upton, 87 N. Y. 327: Pitcher v. Hennessey, 48 N. Y. 415; Many v. Beekman Iron Co., 9 Paige 188, 195; Snell v. Ins. Co., 98 U. S. 85; Story's Equity Jur. § 408; Pomeroy's Eq. Jur. §§ 855, 870, 1370. The remedy of reformation for mistake should not be confounded with that of recission for fraud. No fraud is claimed in this action, and the mere fact that an instrument 'ought not to be enforced is insufficient, standing alone, to justify a resort to equity.' Beach on Eq. Jur. §§ 540, 552. 'Mistake,' said Mr. Pollock, 'does not of itself affect the validity of contracts at all. But mistake may be such as to prevent any real agreement from being formed, in which case the agreement is void; or mistake may occur in the expression of a real agreement, in which case, subject to rules of evi- dence, the mistake can be rectified.' Pollock on Contracts, 392. "A mistake on one side may be a ground for rescinding a contract, or for re- fusing to enforce its specific provisions, but it cannot be a gi-ound for altering its terms.' Adams Equity, 171." Curtis v. Albee, 1901, 107 N. Y. .•500, 304. CHAP, v.] IIAERIS V. PEPPERELL 449 HARRIS V. PEPPERELL. In Chancery, before Lord Romh.i.y, M. R., 1867. \^Laio Reports, 5 Equity 1.] This was a suit by a vendor to rectify a conveyance on account of a mistake in the quantity of land therein comprised. Lord Romilly, M. R. The first defence set up by the Defendant is that, in cases of mistake arising in deeds, the Court will not interfere to rectify the error unless it is clearly proved to have been common to both parties, and in support of this view the case of Earl of Bradford v. Earl of Romney, 30 Beav. 431, which was a decision of mine, was cited. Against this another decision of mine, in Garrard v. Frankel, 30 Beav. 445, was cited on behalf of the PlaintifP, where a lease was executed re- serving a rent of a much less amount than was intended, and the Court interfered to relieve the lessor. These decisions may seem at first sight inconsistent, but they both appear to have been acquiesced in, and were not appealed from, and they are, in my opinion, easily reconcilable, and both correct. Where, as in the case of Earl of Bradford v. Earl of Romney, there has been a settlement on marriage, and the marriage has taken place, and children have been born, then, if the Court is called upon to rectify the instrument on the ground of mistake, it is necessary for the Court to see whether it is carrying into effect the contract which was intended to be entered into on both sides, for it is impossible to undo the marriage, or to remit the parties to the same position that they were in before. In such cases, therefore, the Court acts with great caution in granting relief, and requires i^roof of the exact contract which both parties in- tended to enter into. . But the same rule does not apply in cases arising between vendors and purchasers (using these words in their widest sense). In such cases, where a deed is not actually executed, the Court will not enforce specific performance of a contract which one party has entered into under a mis- take, and where, as in Garrard v. Frankel, 30 Beav. 445, a person sup- poses that he has entered into a contract for a lease at one rent, and then it turns out that the rent specified is of a different amount, then, as it is in the power of the Court to put the parties in the same position as if the contract had not been executed, the Court will interfere, provided the party aggrieved comes speedily for redress. In the present case it is clear that the Court can put the parties in the same position as before the conveyance was executed, for if I hold that there has been a mistake, and that the deed ought to be rectified, then T can give the Defendant the option of having the whole contract annulled, or else of taking it in the form which the Plaintiff intended. It is. 450 WEENER v. RAWSON [part i. therefore, a ease where the Court can grant relief, and I am of opinion that the mistake was clearly proved. [His Lordship then stated the result of the evidence on this point.] The deed, with this error in the parcels, was executed by the Plaintiff without any examination, and he did not discover it till he was on the point of selling the plot to which the piece of land in question was sup- posed to belong, when he discovered that it was already included in the conveyance to the Defendant. With regard to costs in such cases, they must depend on the conduct of the parties. When the mistake is entirely owing to the conduct of the Plaintiff, then he must pay all the costs of the suit. When the De- fendant has been aware of the mistake from the beginning, and refused to rectify it, then the costs must be given against him. In the present case it is clear that the Defendant, if not aware of the mistake at the time of the execution of the deed, knew it as soon as the Plaintiff told him. On the other hand, the negligence on the part of the Plaintiff is inconceivable, for he allowed this additional piece of land to be in the plan, and never caused it to be examined to see whether it was correct. It is a case of gross negligence on his part, and therefore no costs can be given on either side. There will be a declaration that the Plaintiff did not intend to convey the additional strip of land in question, and is entitled to have the con- veyance rectified accordingly, with an option to the Defendant to annul the contract. WERNER V. RAWSON. In the Supreme Court of Georgia, 1892. [89 Georgia 619.] Action by Mrs. Werner against Rawson, to recover possession of cer- tain real estate, and for the restoration of a deed (by the establishment of a copy or by requiring the execution of one similar) which Rawson had executed and which conveyed to her the property in question. The defendant pleaded that the deed was executd as the result of a mistake or misunderstanding between himself and the plaintiff's brother, Simon, who negotiated with him in the purchase and sale of the property; and hence he prayed that the deed be rescinded and set aside. By amendment hf ;illeged that Simon by design had the deed so prepared as to convey lh(! property in question, embracing two houses and lots, for the con- sideration named by the defendant in the negotiation as the price of one of them, so as to entrap him into signing the same. The jury found for the defendant, and that the contract be rescinded. To the overruling of her motion for a new trial the plaintiff excepted. I3lkcki,ky, Chief Justice. CHAP, v.] WERNER I'. RAWSON 451 The action was brought by Mrs. Werner to recover the land and to establish a copy of tlio deed of conveyance which Rawson, the defendant, had executed to her and afterwards destroyed. The controlling legal question arises upon the eciuitable relief ptrayed for by Rawson in his answer, to wit : that the deed of conveyance be cancelled and set aside on the ground of mistake. The mistake, if any, was not alone in the deed, but in the contract itself, and consisted primarily of a difference of opinion or understanding as to the price at which the property was to be sold and conveyed by the defendant, Rawson, to the plaintiff, Mrs. Werner, the vendor understanding the price to be $5,000.00, and the pur- chaser (who contracted by her agent, Mr. Simon) understanding it to be $2,500.00. Both the consideration expressed in the deed and the amount of the check delivered in payment of the purchase money conformed to the understanding of the purchaser, so that relatively to these documents, the mistake was not mutual, but only unilateral. Relatively to the con- tract itself, the mistake was mutual in so far as mutuality consists of mutual misapprehension ; for the vendor had one understanding of the price supposed to be agreed upon, and the purchaser another. But the case may be dealt with as one of mistake on the part of the vendor alone, which mistake, looking to the whole scope of it, consisted, first, in an honest belief that he had named $5,000.00 as the price of the property, and that the purchaser had agreed to pay it; secondly, in a like belief that such was the amount for which the check he received in payment was drawn, when in fact that amount was only $2,500,00. 1. There is a plain distinction between reforming a writing and can- celling it. Unquestionably it is true that to enable a court to reform an agreement evidenced by writing on the ground of mistake, it must af- firmatively appear that the mistake was common to both parties, and that the writing as executed expresses the contract as understood by neither. The reason for the rule is forcibly stated by Ames, C. J., in Diman v. Railroad Co., 5 R. I. 134, who says : " A court of equity has no power to alter or reform an agreement made between parties, since this would be in truth a power to contract for them ; but merely to correct the writ- ing executed as evidence of the agreement, so as to make it express what the parties actually agreed to. It follows, that the mistake which it may correct in such a writing must be, as it is usually expressed, the mistake of both parties to it; that is, such a mistake in the draughting of the writing as makes it convey the intent or meaning of neither party to the contract. If the court were to reform the writing to make it accord with the intent of one party only to the agreement, who averred and proved that he signed it as it was written by mistake, when it exactly expressed the agreement as understood by the other party, the writing, when so altered, vrould be just as far from expressing the agreement of the parties as it was before; and the court would have been engaged in the singular office, for a court of equity, of doing right to one party at the expense of a precisely equ^l wrong to the other." 452 WERNER v. RAWSON [part i. " Equity will not reform, a written contract unless the mistake is proved to be the mistake of both parties, but may rescind and cancel a contract upon the ground of a mistake of facts material to the contract of one party only." 15 Am. & Eng. Enc. of Law, 647. The mistake " must be mutual if the complainant wishes to have the instrument reformed and not simply set aside, because equity cannot undertake to reform on the ground of the ignorance or misapprehension of one of the parties as to any facts, though it may rescind." Bispham's Prin. of Eq., 4th ed., § 191. So, " Cancellation is appropriate when there is an apparently valid written agreement or transaction embodied in writing, while in fact, by reason of a mistake of both or one of the parties, either no agreement at all has really been made, since the minds of both parties have failed to meet upon the same matters, or else the agreement or transaction is different, with respect to its subject-matter or terms, from that which was intended." 2 Pom. Eq. Jur., 2d ed., § 870. " A mis- take on one side may be a ground for rescinding a contract, or for re- fusing to enforce its specific performance ; but it cannot be a ground for altering its terms." Adams Eq. *171. And see Douglas v. Grant, 12 111. App. 273 ; Dulany v. Rogers, 50 Md. 524 ; Diman v. Railroad Co., supra. Our code, § 3124, expressly declares : " A distinction exists between re- forming a contract and executing a contract in case of mistake. To authorize the former, the court must be satisfied by the evidence that the mistake was mutual ; but the court may refuse to act in the latter case, if the mistake is confined to the party refusing to execute." The next sec- tion provides that, " In all cases of a mistake of fact material to the con- tract, or other matter affected by it, if the party complaining applies within a reasonable time, equity will relieve." Another section, 2636, de- clares: " Mistake of a material fact may, in some cases, justify a rescis- sion of the contract." For some of the circumstances under which the courts have thought the complaining party entitled to relief, refer to Brown V. Lamphear, 35 Vt. 252, where it appeared that plaintiff unin- tentionally omitted from a deed conveying land to defendant a reserva- tion of the right to use water from a certain spring; Paget v. Marshall, L. R. 28 Ch. Div. 255, where plaintiff, in executing a lease of certain buildings, included therein by mistake a warehouse he had intended to re- serve for his own use, which he had refused to rent, but which defendant (■hiiin<;d to be included in the offer he had accepted; Harris v. Pepperell, L. R. 5 Efj. 1, where tlic plaintiff included in a deed to defendant a piece of land not intended to be so conveyed; also, the similar case of Baxen- dale V. Scale, 19 Beav. 601. In Webster v. Cecil, 30 Beav. 62, it appeared tliat defendant, by letter, offered to sell certain property to 7)laintiff for 1250?., and the plaintiff, by letter, accepted the ofTcr. The defendant had, by mistake, inserted in his letter 1250/. instead of 2250Z., and he immediately gave notice of the error. The court refused to enforce the contract. See, also, Burkhalter v. Jones, .'52 K:in. 5. CHAP, v.] WEKNER V. RAWSON 453 In view of the authorities above cited, we do not think the contention of the plaintiff in error can be maintained/ ' Balance of opinion dealing with instructions to jury omitted. Not only does equity rescind and decree cancellation, but if the instrument has been cancelled by mistake, equity restores it. In Skip v. Huey, 1744, 3 Atk. 91, 93, Lord Habdwicke said: "There are many cases where equity will set up debts extinguished at law against a surety, as well as against a principal ; as where a bond is burnt or cancelled by mistake, and much stronger, if a principal procure the bond to be delivered up by fraud, in such a case the court would certainly set it up, because he shall not avail himself of the fraud of any of the debtors." In Langley v. Brown, 1741, 2 Atk. 195, 203, the same great Chancellor said: "The third ground of relief is, mistakes and misapprehensions in the drawer of deeds contrary to the design of the parties. "And to be sure this is as much a head of relief as fraud and imposition." In Hearne v. Marine Ins. Co., 1874, 20 Wall. 488, 490, Mr. Justice Swayne said for the court: "The reformation of written contracts for fraud or mistake is an ordinary head of equity jurisdiction. The rules which govern the exercise of this power are founded in good sense and are well settled. Where the agreement as reduced to writing omits or contains terms or stipulations contrary to the common intention of the parties, the instrument will be corrected so as to make it conform to their real intent. The parties will be placed as they would have stood if the mistake had not occurred; Kerr on Fraud and Mis- take, 419, 420. "The party alleging the mistake must show exactly in what it consists, and the correction that should be made. The evidence must be such as to leave no reasonable doubt upon the mind of the court as to either of those points. Beaumont v. Bradley, 1 Turner & Russell, 41-50; Marquis of Breadalbane V. Marquis of Chandos, 2 Mylne & Craig, 711; Fowler v. Fowler, 4 De Gex & Jones, 255; Sells v. Sells, 1 Drewry & Smales, 42; Loyd v. Cocker, 19 Beavan, 144. The mistake must be mutual and common to both parties to the in- strument. It must appear that both have done what neither intended. Rooke V. Lord Kensington, 2 Kay & Jonson, 753; Eaton v. Bennett, 34 Beavan, 196. A mistake on one side may be a ground for rescinding, but not for reforming, a contract; Mortimer v. Shortall, 2 Drury & Warren, 372; Sells v. Sells, supra. Where the mind of the parties have not met there is no contract, and hence none to be rectified: Bentley i'. McKay, 31 L. J. Chancery, 709; Baldwin et al. V. Mildeberger, 2 Hall, 176; Coles v. Browne, 10 Paige, 534; Calverley V. Williams, 1 Vesey Jr., 211." Perhaps there is no neater statement of the reason for relief than in the following few sentences. "If the defendants' representation of ownership related to the four lots, it was a falsehood and a fraud. If it related to the Bronx river lots, it was not so understood by the plaintiff, and he was mis- led by a mistake. There was thus either fraud or mistake against which equity may relieve. The defendants' mistake was that they conveyed what they did not owTi and did not mean to sell. The plaintiflF's was that he bought what he meant to buy, but without the asserted title in his grantors. What one meant to sell t|ie other did not mean to buy, and what one meant to buy 454 S. & P. PENNY v. MAETIN and others [part i. S. & P. PENNY V. MAETIN and others. In the Court of Chancery of New York, before Chancellor Kent, 1820. [4l Johnson's Chancery 506.] The Chancellor. The. facts in this case are few and simple. The plaintiffs sued the defendants, E. and M., as partners in assumpsit , at law, and M. only was taken. The suit was carried on, under the pro- vision in the statute, against M., who was taken, and judgment rendered against both E. and M.; and the remedy under it is limited by the statute to an execution against the joint property of both the defendants, and the separate property and person of the one taken. On issuing execution, it was found that there was no joint property, and that M., the defend- ant taken, was insolvent. Since that time, the plaintiffs have discovered that the other three defendants in this suit were partners with E. and M. in the contract sued at law; and the question is, whether, upon these facts, the plaintiffs are entitled to the aid of this Court, to recover by its decrees, their demand against the dormant partners. There is no doubt that E., who was not taken in the suit at law, can be sued upon the judgment which was rendered jointly against M. and E. This was settled by the Supreme Court in the case of the Bank of Col- umbia V. Newcomb, 6 Johns. Eeps. 98, and it was strongly intimated in that case, that the defendant not taken in the original suit, would be entitled to make any defence which he might have made in his distinct individual capacity, had he been arrested in the original suit. This con- clusion can work no prejudice to the plaintiffs, and it would seem to follow from the plainest principles of justice. It is equally certain that the present defendants, who now join in the demurrer, might have been sued at law in the original action. The demand is on a contract, to which it is alleged they were parties, as being dormant partners with E. and M. The omission to make them parties in the action at law, arose, according to the allegation in the bill, from ignorance of the fact that they were such partners. Is that ignorance a sufficient ground for transferring to this Court, jurisdiction of a matter properly, if not ex- clusively, cognizable at law? The ignorance might have been removed by due vigilance and inquiry, and perhaps by the assistance of a bill of discovery here. The plaintiff's have no particular equity entitling them to relief. Ignorance, as Lord TjonoHBOROUGn said, is not a mistake. They iu!ver inriuirod whether E. and M. had secret partners, and they gave the whole credit, to them. If tlicy have now got into embarrassment and tlift fither (lid not inoan to sell." Per FiNcn, J., in (^rowc cl al. v. Lewin, 1884, 95 N. Y. 423, 42G. €iiAP. v.] C]TT:STEKFIELD v. JANSSEN 455 difficulty, in respect to their legal remedy, by pursuing t"he ostensible partners at law, without such inciuiry, I do not know of any principle that will authorize this Court to take jurisdiction of a case where the remedy was, in the first instance, full and adequate at law, because the ])arty may have lost that remedy by ij^norance, founded on neglif?ence, not on accident, or mistake, or on any misrepresentation or fraud. Gen- t?rally speaking, a jurisdiction does not arise here from the mere circum- stance that a party has omitted to make a proper case at law. There is no such head of equity jurisdiction. The general rule is, that if the liarty becomes remediless at law by negligence, he shall not be relieved in equity. ITe must show that he has been deprived of his legal remedy by accident, casualty, misfortune, &c. 1 Fonb. Tr. b. 1 ch. 3. sec. 3, § 3. It is to be observed, that here are no special circumstances disclosed by the bill. We have only the naked fact, that the plaintiffs discov- ered, since the judgment at law, that the defendants were partners; but whether they were kept in ignorance by undue means, or took any pre- vious steps to remove it, does not appear, and is not, therefore, to be ]-)resumed. Whether they have, or have not, lost their remedy at law, (and on which I give no opinion,) the demurrer must be pronounced to be well taken, and the bill dismissed, without costs. Decree accordingly/ Section 3. Fraud. This court can certainly relieve against all kinds and species of fraud. Fraud may either be dolus mains, a clear and express fraud, or fraud may arise from circumstances, and the necessity of the person at the time. There are also hard unconscionable bargains, which have been con- strued fraudulent. Barnardiston v. Lingwood, post. 2 vol. 133. Gwyne v. Heaton, 1 Bro. Cha. Rep. 10. Sed vide Willis v. Jernegan, post. 2 vol. 251, and there are instances where even the common law hath re- lieved for this reason expressly. James v. Morgan, 1 Lev. Ill, was a case of this kind. Assumpsit to pay for a horse, a barley corn, a nail, and double every nail, and avers that there were 32 nails in the shoes of the horse, which, doubling each nail, comes to 500 quarters of barley; and upon non assumpsit pleaded, the cause being tried before Mr. Jvistice Hide at Hereford; he directed the jury to give the value of the horse in damages, being 81. and so they ^ The learned Chancellor subsequently quoted as authority Willings & Fran- cis r. Consequa, 1S16, 1 Peters' C. C. 301. So in Craft v. Dickens, 1875, 78 111. 131, Equity refused to reform an attachment bond for mistake, as the bond might have been corrected at law. 456 CHESTERFIELD v. JANSSEN [part i. did; and it was afterwards moved in arrest of judgment upon a slip in the declaration which was overruled and judgment given for the plaintiff. But this court will relieve against presumptive fraud, so that equity goes further than the rule of law, for there fraud must be proved, and not presumed only. To take an advantage of another man's necessity, is equally bad, as taking advantage of his weakness, and in such situation, as incaijable of making the right use of his reason, as in the other. In the marriage-brocage bonds, one of the parties to the marriage only is deceived and defrauded, and not either of the parties to the marriage- brocage bond, and yet the court have relieved, for they hold it infected by the fraud, and relieve for the sake of the publiek, as a general mis- chief. In like manner, where a debtor enters into an agreement with a par- ticular creditor, for a composition of 10s. in the pound, provided the rest of the creditors agree, and this creditor at the same time makes a private clandestine agreement for his whole debt, and though no particular fraud to the debtor, yet as it is a fraud on the creditors in general, who entered into the agreement, on a supposition the composition would be equal to them all, the court has relieved. Surrett v. Spiller, ante 105. 2 Ves. 156. See Middleton v. Onslow, 1 P. W. 768. So in bargains to procure offices, neither of the parties is defrauded or unapprized of the terms, but it serves to introduce unworthy objects into publiek offices ; and therefore, for the sake of the publiek, the bargain is rescinded. Political arguments, in the fullest sense of the word, as they concern the government of a nation, must, and have always been of great weight in the consideration of this court, and though there may be no dolus malus, in contracts as to other persons, yet if the rest of mankind are concerned as well as the parties, it may properly be said, that it regards the publiek utility. In the cases before this court, there have been sometimes proof of actual fraud, such as Berney v. Pitt, the Earl of Ardglass v. Muschamp, and several others. In these cases too, fraud has been constantly presumed, or inferred from circumstances, and conditions of parties; weakness and necessity on one side, and extortion and avarice on the other, and merely from the intrinsic unconscionableness of the bargain. The next kind of deceit is, upon other persons who were not parties^ as ancestor and father, and the heir and expectant, where by contrivance an heir or a son have been kept from disclosing his affairs to a father, or other relation, and by that means prevented from being set right, and undeceived; and the ancestor or father, have likewise been sediiced to leave their fortunes, to be divided among a set of dangerous persons, and common adventurers. Per Lord TTardwk'ke in Chesterfield v. Janssen (1750,) 1 Atkyns, 314, or.i or'> CHAP, v.] THYNN V. THYNN 457 THYNN t'. THYNN. In Chancery, before Lord Keeper Guilford, 1684. [1 Vernon 296.] The case was, that Mr. Thynii, of Eagham, deceased, having made a will, and thereby made his wife sole executrix; the defendant Mr. Thynn the son, hearing of this will, came to his mother in the life-time of his father, and persuaded her, that there being many debts, the executorship Avould be troublesome to her; and desired that he might be named exe- cutor; for that he by reason of his privilege of Parliament could struggle the better with the creditors, and persuaded his mother to move his father in it; declaring, that he would be only an executor in trust for her: and the mother accordingly prevails on the father that it might be so: and thereupon Mr. Thynn the son gets a new will drawn, whereby a legacy of 501. only is given to his mother, and therein he makes himself sole executor; and cancels the former will, though the father opposed the doing thereof; and the last will was read over so low, that the testator could not hear it ; and when he called to have it read louder, the scrivener cried, he was afraid of disturbing his worship. The defendant having thus made himself sole executor, and procured this will to be executed,^ where only a legacy of 501. was given to his mother, set up for himself, and denied the trust for his mother: and in his first two answers he denied the will was drawn by his directions, and that the 501. therein, given to his mother was without the testator's privity; but in his third answer he confessed it. Upon the whole matter, it appearing to be, as well a fraud, as also a trust, the Lord Keeper, notwithstanding the statute of frauds and per- juries, (The statute seems to relate only to trusts concerning lands and hereditaments, vide stat. 29 Car. 11. cap. 3. Vide Devinish v. Baynes, Pre. Ch. 3. Selwyn v. Selwyn, 11 Dec. 1758, before Henley, Lord Keeper, L. I. Hall,) though no trust was declared in writing, decreed it for the plaintiff, and ordered that the defendant should be examined on inter- rogatories for discovery of the estate. The defendant was to pay costs to the hearing, to be taxed by the Master out of his own estate, not to wait the taking the account, Keg. Lib. 1684, B. fol. 259.' ' "Should an heir, or personal representative, whose interests would b& affected by the regular insertion of a bequest in a will, induce the testator to omit making a formal provision for an intended object of his bounty, by assurances that the testator's wishes shall be as fully executed as if the be- quest were formally made, this promise and vmdertaking will raise a trust, which, though not available at law, will be enforced in Equity on the ground of fraud. Chamberlain v. Agar, 2 Ves. & Bea, 262; ]Mestaer v. Gillespie. 11 Ves. 638; Strickland v. Aldridge, 1) Ves. 519; Chamberlaine v. Chamber- 458 BAWDES v. AMHURST [part i. BAWDES V. AMHUEST. In Chancery, before Lord Chancellor Cowper, 1715. [Precedents in Chancery 403.]' On the plaintiffs application in way of marriage to his new wife, the defendant's sister, her father proposed to give her a portion of 45001. and the plaintiff proposed to settle on her, by way of jointure, a rent charge of 4501. per ann. and in order thereunto, the plaintiff and the young lady's father went to Mr. Minshull's chambers in the Temple, who was to draw the settlement, as counsel for the lady, and Mr. Minshull hearing the proposals on both sides, took down minutes or heads thereof in writing, and the same day gave them to his clerk, to draw articles according to the substance thereof: the next day the young lady's father was taken ill suddenly, and died in about two hours after: The next morning the plaintiffs intermarried, and now brought this bill to compel a specific execution of the marriage agreement, and to haw the portion paid. The defendant pleaded the Statute of Frauds and Perjuries, and on arguing that plea, the benefit thereof was saved to the hearing. It was now argued by Mr. Cooper and Mr. Vernon for the plaintiffs, that this was such an agreement as a coiirt of equity might well carry into execution; that the statute did not require all agreements to be signed hy the parties themselves, but if they were signed by any one lawfully authorized thereto, it was sufficient; that here Mr. Minshull had authority and directions from both parties to draw the articles; that he took down These minutes or lieads from the parties' own mouths ; and reduced them into writing; and that therefore this could not be looked upon as a parol Mgreeiijent, or any danger of perjury, since there was a writing of it, nor ( ould there be any variety of evidence concerning it ; for the same reason, that in the case of Maseall and Cooke, 2 Vern. 200. S. C, in this court, where only a draught of a marriage settlement was prepared, and before it was ingrossed the parties intermarried, and the father was present, and gave the wedding dinner, he was afterwards decreed to pay the mar- laine v. f'hiiiiibfrlaino, 2 Froom. 34; Oldliam v. Litchford, 2 Freem. 285. And suc-li an ongagciiK'nt may be entered into, not only by words, but by silent assent to siieli a proposed undertaking, which will equally raise a trust. Bryn r. flodfrey. 4 Ves. 10; Paine r. TIall, IS Ves. 475. Of coin-se, the case would ti(- still s1i(iri;,'ci- if the iiiseiiioii of Ihc bequest in Ihe will liad been prevented by any violi'iil interference. i)ixon v. Olmiiis, 1 Cox, 414." Barrow v. Greenough, 17!H;, .■? Ves. 152 (note Sumner's edition). M Eq. abr. 21, pi. 8. S. C. 2 Chan. Rep. 284. S. C. Gilb. Chan. 238. Antfe, 208. 374. 380. Post, 526. 530. Vid. Lord Hardwicke's observation iipnii tliis ease, 2 Atk. 504. — Ileportcr's Note. CHAP, v.] BAWDES V. AMHUEST 459 riage portion, tliough the agreement was never signed by either party; that in several cases, though there he nothing of the agreement reduced into writing, yet it has been decreed to an execution in this court; Ante, 208. 304, as if a man, by his answer, confesses the agreement as charged in the bill, he cannot avoid it, by insisting it was never reduced into writing, because, when he himself confesses it, there can be no danger of perjury or cantrariety of evidence; no more can there be in this case, when there is a writing or memorandum of the substance. But it was argued on the other side, and decreed to be no such agree- ment as this court could carry into execution; and my Lord Chancellor said, he had been always tender in laying open that wise and just pro- vision the parliament had made; that the act had not only directed such agreements to be in writing, as if that alone were sufficient, but went further, and directed them to be signed by the parties themselves, or. some other lawfully authorized by them for that purpose; that to obviate the pretence of such an.d such cases being out of the mischief of the statute, the parliament had in general words comprehended all, and di- rected that all agreements should be in writing, and signed by the party; that he knew no case where an agreement, though it were all written with the party's own hand, had been held sufficient, unless it had been likewise signed by the party, and said, that the party's not signing it was an evidence that he did not think it compleat; that he had left it to an after consideration, and might afterwards make alterations or additions in it ; and therefore, unless it were either signed by him, or something equivalent done, to shew that he looked uj^on it as compleated and perfected, he thought such writing b\^ the party himself was not sufficient to bind him within that statute, and cited the case of Mallet and Halfpenny, 1 Eq. abr. 20, pi. 6. S. C. 2 Vern. 373. S. C, where the defendant, on a treaty of marriage for his daughter with the plaintiff, signed a writing, comprising the terms of the agreement, and afterwards designing to elude the force thereof, and get loose from his agreement, ordered his daughter to put on a good humour, and get the plaintiff to deliver up that writing, and then to marry him, which she accordingly did, and the defendant stood at the corner of a street to see them go to be married, and afterwards forced the plaintiff to bring his bill in this court to be relieved; and my Lord Chancellor said, he remembered very well, that this cause was heard before the Master of the Rolls, and the plaintiff had a decree; but he said, this was on the point of fraud, which was proved in the cause, and Halfpenny walked backwards and forwards in the court, and bid the Master of the Rolls observe the statute, which he humorously said, 7 do, I do. And in the principal case it was decreed to be no agreement, which this court could carry into execution, being only preparatory heads, which were afterwards to be drawn into form, and might then receive several alterations or additions, or the agreement en- tirely broke off, upon some further enquiry or information of the parties' circumstances. 460 BAWDES v. AMHUEST [part i. But Note ; It seemed to be agreed, both by the court and counsel, that if the mariage had been had upon the foot of this writing, and the father had been privy and consenting to it, that he should afterwards have been, obliged to execute his part thereof/ ^In Welford v. Beazley, 1747, 3 Atk. 503, 504, Lord Hardwicke "denied the general doctrine as laid down in Prec. in Chan. 402. Bawdes v. Am- hurst, though true as applied to that case by Lord Cowper" on the ground "that the writing there, though in the father's hand, was only a sketch of an agreement not settled or confirmed by the parties." In Wooldridge v. Scott, 1879, 60 Mo. 669, 073, Sherwood, C.J., said: "It seems to be thought by counsel for plaintiff that the desired feature capable of taking this case out of the ordinary routine is furnished by what took place between the parties in the presence of Mr. Boyd. It is to the last degree doubtful whether the language itself will bear the construction placed upon it by counsel. Mr. Boyd says: 'Both parties admitted that the note due from Francis M. Wooldridge was given for a tract of land sold by Jane Chambers to Francis M. Wooldridge; that a lien was to be held on the land until the purchase-money was paid.' The admission with regard to the lien would apply as well to what took place between Jane Chambers and her vendee, as to what occurred between the latter and the plaintiff. But con- ceding that the language imports all that plaintiff's counsel claims, that the vendee was to give a lien upon the land until the purchase-money was paid, still we are met by the formidable objection presented by the Statute of Frauds. Giving the language this very favorable construction, it is quite evident that plaintiff relied on the word of the vendee to make him secure in accordance with what had been promised. If the vendee had made this with a fraudulent purpose of obtaining an advantage, and then breaking faith with plaintiff, we might be disposed to afford relief, notwithstanding the statute 'on the foot of the fraud.' Halfpenny v. Ballot, 2 Vernon 373. But there is no indication in this record of a fraudulent purpose on the part of the vendee, and unless this is the case the statute forms an absolute bar. Chambers v. Lecompte, 9 Mo. 566, and cases cited; 2 Story on Contracts, § 1466, and cases cited. And it is said that even in case of fraudulent non- performance, where a writing was to evidence the contract, there must be an express promise to reduce the contract to writing, and not a mere parol promise to do the act agreed on, not looking to such reduction. If, as above seen, there was in the present instance neither fraud of the character spoken of, nor any contract respecting the land to be reduced to writing, the whole matter thus rested in parol and under the ban of the statute." CHAP, v.] SIR G. MAXWELL v. LADY MOUNTACUTE 461 SIR GEORGE MAXWELL v. LADY MOUNTACUTE, his wife. In Chancery, before Lord Chancellor Parker, 1719. [Precedents in Chancery 526.]' In this case a distinction was taken, and agreed by the court, that "where, on a treaty for a marriage, or any other treaty, the parties come to an agreement, but the same is never reduced into writing, nor any pro- posal made for that purpose, so that they rely wholly on their parol agreement, that unless this he executed in part, neither party can compel the other to a specific performance, for that the Statute of Frauds is directly in their way; but if there were any agreement for reducing the same into writing, and that is prevented by the fraud and practice of the other party, that this court will in such case give relief; as where instructions are given, and preparations made for the drawing of a mar- riage settlement, and before the compleating of it the woman is drawn, by the assurances and promises of the man, to perform it, and after to marry him. Ante, 370, and 402. 2 Vern. 200, and 372. So where a man treated to lend money on a mortgage, and the con- veyance proposed was an absolute deed from the mortgagor, and a deed of defeasance from the mortgagee, and after the mortgagee had got the conveyance he refused to execute the defeasance, yet my Lord Notting- ham decreed it against him on the fraud after the statute. 2 Atk, 98. 3 Atk. 388. So where an absolute conveyance is made for such a sum of money, and the person to whom it was made, instead of entering and receiving the profits, demands interest for his money, and has it paid him, this will be admitted to explain the nature of the conveyance; and (2 Ventris, 361. 1 Vern. 110. 2 Vern. 332.) a letter has heen held a sufficient agreement in writing, if it were signed by the party, to bring it out of the statute; and cited the case of Leicester and Foxcroft, Post, 560, and 1 Atk. 12, fecits. Ante, 519 S. C. cited and stated, and other cases.' ^Antfe, 519. Post. 533, and 560. Gilb. Chan. 244. 1 Eq. abr. 19, pi. 4. and 20, pi. 5. — Reporter's note. "The above case is more amply and accurately statfxl by Peere Williams: it is there mentioned, tliat there was a letter from the husband. Sir G. Max- well (who was defendant, and not plaintiff, as erroneously appears from the above statement), that evidenced the agreement; yet Lord Chancellor Parker held the plea of the statute to be valid, and allowed it. 1 Wms. 618. Strange, 236, S. C. See also the case of Ayliffe v. Tracy, 2 Wms. G5, where it is held that a letter from the father to his daughter, by which he agrees to give her 30001. portion, and this is not shown to the party, who afterwards married her, does not take the promise out of the Statute of Frauds. — Vid. the case of Taylor v. Beech, 1 Vesey, 297. — Reporter's note. 462 WOOD V. MIDGLEY [part l WOOD V. MIDGLEY. In the Court of Appeal in Chancery, 1854. [5 De Gex, Macnaghten and Gordon 41.] This was an appeal from the decision of Vice-Chancellor Stuart over- ruling the demurrer of the defendant to a bill for speeitic performance filed by vendors of leasehold property. The ground of the demurrer was that the bill alleged no sufficient agreement in writing within the Statute of Frauds. The substance of the material statements of the bill are set out in the report of the case below, in the second volume of Messrs. Smale and Giffard's Heports, page 115. The case made by them was that the premises were put up for sale by the directions of the plaintifi:"s, subject to certain printed particulars and conditions ; that the defendant called upon the auctioneer, and went with him to the plaintiiis' solicitor, and that the conditions of sale were then altered and turned into an agreement for sale by private contract by the direction of the defendant, who approved of the draft so prepared, and agreed to sign it. That the auctioneer then signed the following memorandum : " Memorandum : Mr. Thomas Midgley has paid to me the sum of £50, as a deposit, and in part payment of £1,000, for the purchase of the Ship and Camel Public-house, at Dockhead ; the terms to be expressed in an agree- ment to be signed as soon as prepared. William Love.ioy. " 5th of July, 1853." The bill alleged that the above-mentioned draft was the agreement referred to in the memorandum. It also stated that the defendant's solicitors, by letter to the auctioneers, stated that the defendant declined to enter into the agreement, and demanded back the deposit. The demurrer was as follows: "The defendant demurs in law to the said bill, and for cause of demurrer shows that it appears by the bill that neither the agreement which is alleged by the bill, and of which the bill prays the specific performance, nor any memorandum or note thereof, was ever signed by this defendant, or any person thereunto by the defend- ant lawfully authorized within the meaning of the Statute of Frauds." The Lord Justice Turner.' The Vice-Chancellor in his judgment says that this is a case on which different minds may arrive at different conclusions, and it is one on which my conclusion differs from his Honor's. LTpon the merits the argument is threefold. First, it is said that the defendant has so acted as to avoid signing the agreement, holding the other party bound by the agreement, and Maxwell v. Mountacute, Prec. in Ch. 526, is referred to on this head. But the principle of that and ' Only so miicli of Uio opinion is givon ns relates to the question of fraud. CHAP, v.] LEE PEEK v. NETTIE A. PEEK 463 similar cases is fraud. If a party has been guilty of fraud, beyond all doubt the court will not let him take advantage of the Statute of Frauds. All the cases referred to. including Ilannnersley v. De Biel, 12 CI. & Fin. 45; Walker v. Walker, 2 Atk. 98, and Muckleston v. Brown, 6 Ves. 52, rest on this principle. Is there, then, a case alleged by this bill of this nature, that the defendant did by his fraudulent act prevent the agree- ment from being reduced to writing? I think that there is no allegation on the bill bringing forward a case of fraud. The case alleged is simply this, that there was an agreement for a sale by the plaintiffs to the defendant for £1,000, and the defendant said that he would not sign any agreement. The law has said that the defendant is not to be sued unless upon an agreement signed by him. Is it a fraud on that law for him to say, I have agreed, but I will not sign an agreement? The demurrer must be allowed. The LoKD Justice Knight Bruce concurred. LEE PEEK V. NETTIE A. PEEK. In the Supreme Court of California, 1888. [77 California 106.] Appeal from a judgment of the Superior Court of San Bernardino County, and from an order refusing a new trial. The facts are stated in the opinion. Hayne, C. Ejectment, with a cross-complaint by defendant praying for a conveyance of the legal title. The facts are as follows : One L. R. Peek orally promised the defendant that if she would marry him he would, on or before the marriage, convey to her the prop- erty in controversy. She relied upon this promise, and married him " for no other reason or consideration." The conveyance was not made. He put it ofi by excuses and protestations, and on the morning of the marriage, without the knowledge of defendant, conveyed the property to his son by a former marriage, who was then a boy about ten years old. The marriage with defendant did not prove a happy one, and after a year's residence upon the property, Peek deserted the defendant, and the son, Lee Peek, brought the present action to recover possession of the property. The court below gave judgment for the plaintiff, and the de- fendant appeals. The foundation of the defendant's claim being the promise of L. R. Peek, the first question to be considered is whether such promise was of any validity. It is clear that it was within the Statute of Frauds. But it is contended that there was such part performance and fraud as 464 LEE PEEK v. NETTIE A. PEEK [part i. ■would induce a court of equity to give relief, notwithstanding the statute/ We think that if the actual fraud of L. R. Peck be left out of view, there was no such part performance as would take the case out of the statute. There may undoubtedly be cases of a part performance of oral antenuptial agreements sufficient to warrant their enforcement in equity. See Neale v. Neale, 9 Wall. 1. But it seems to be generally agreed that the marriage alone does not amount to such part performance. See Atherly on Marriage, 90; Browne on Statute of Frauds, 4th ed., § 459; Henry v. Henry, 27 Ohio St. 121. With reference to this subject. Story says : " The subsequent marriage is not deemed a part jjerf ormance, taking the case out of the statute, contrary to the rule which prevails in other cases of contract. In this respect it is always treated as a peculiar case standing on its own grounds." 1 Story's Eq. Jur. § 768. Nor does the fact that the defendant resided with her husband upon the property make any difference. The reason assigned for holding possession to be part performance is, that unless validity be given to the agreement the vendee would be a trespasser. But it is manifest that this reason would not apply where the vendor was the husband and the vendee the wife, living with him upon the property. The possession which is referred to by the cases which hold it to be sufficient part performance is a posses- sion exclusive of the vendor. Browne on Statute of Frauds, 4th ed., §474. But the fact that the marriage was brought about by the actual fraud of L. R. Peek seems to us to make a difference. There can be little doubt upon the record that there was actual fraud on his part. He denies that he made any promise to convey the property in controversy. But the court finds that he did make it, and taking this to-be the fact, we think that the defendant's account, as to the time of the promise and of the reason she married him without the conveyance, must be accepted as the true one. According to her testimony, the promise was repeated up to the time of the marriage, and she was induced to have the cere- mony performed before the conveyance was executed by means of ex- cuses and protestations which must have been made for the purposes of deceiving her. On the day before the marriage he pretended that he was going to have the deed executed at once. He said to the defend- ant : " The officers are in town that are required to draw up the papers. Come to-night and I will have the place deeded to you, and the fifteen thousand dollars put in your name. Tie left me in the hotel, and in a few minutes he came and told me that Mr. Frank McKenny was out of town, and it could not be attended to that evening." The next day, " he said he would have the deeds drawn, and he went up and said that they were all busy at the court-liouse, and he couldn't have it done at lli;i( time, and he called on mc again with the same story — that the gentlemen at the court-house were busy, and that he could not have the deeds fixed, and that I could rest contented." He, however, succeeded ' Only so nnicli of tlio o|»iiiion is given as relates to this question. €HAP. v.] LEE PEEK v. NETTIE A. PEEK 465 in inducing the defendant to marry him that evening, by protesting that the papers should be executed as soon as practicable. After the mar- riage he kept up for a short time the pretense that he was going to ful- fil his promise, but never did so. It seems clear that he never intended to have the deed executed. The story that he could not have it done because the officers at the court-house were busy is ridiculous. On the very day that he was making this excuse, he got a deed executed, conveying the property to his son. And the fact that he induced the defendant to marry him by promising to convey the property to her, when at that very time he was conveying it to somebody else, seems conclusive as to his fraudulent intent. We think, therefore, that the conclusion of the court belov/ that the deed was not made " with any fraudulent intent whatever " is not sustained by the facts. This fraud on the part of L. R. Peek, by which he induced the de- fendant to irretrievably change her condition, seems to us to be ground for relief in equity. It has been laid down that if the agreement was intended to be reduced to writing, but was prevented from being so by the fraudulent contrivance of the party to be bound by it, equity will compel its specific performance. 1 Story's Eq. Jur. § 768; Atherly on Marriage, 85. And the recent case of Green v. Green, 34 Kan. 740; 55 Am. Hep. 256, is exactly in point. In that case a widow, owning 160 acres of land, orally promised a man that if he would marry her she would devote the proceeds of the land to their joint support. Relying upon this promise he married her, but subsequently ascertained that on the eve of the marriage she had conveyed the property to her children by former marriage, " in consideration of love and affection." The court held that he could maintain an action to have the deed set aside on the ground of fraud. Compare also Petty v. Petty, 4 B. Mon. 215; 39 Am. Dec. 501. We do not say that the mere fraudulent omission to have an agree- ment reduced to writing would of itself be ground for specifically en- forcing the agreement. But where the fraudulent contrivance induces an irretrievable change of position, equity will enforce the agreement. And the marriage brought about by the fraudulent contrivance is a change of position within the meaning of the rule. In Glass v. Hul- bert, 102 Mass. 24 ; 3 Am. Rep. 418, in reasoning upon somewhat different facts, to the conclusion that, in order to be ground for the enforcement of the oral contract, the fraudulent contrivance must have induced some irretrievable change of position, the court said : " The eases most fre- quently referred to are those arising out of agreements for marriage settlements. In such cases the marriage, althoiigh not regarded as a part performance of the agreement for a marriage settlement, is such an irre- trievable change of situation, that if procured by artifice, upon the faith that the settlement had been made, or the assurance that it would be executed, the other "party is held to make good the agreement, and not 466 REIGAL v. WOOD [part i. permitted to defeat it by pleading the statute." This, we think, is a correct statement of the law. We therefore advise that the judgment and order denying a new trial be reversed, and the cause remanded for a new trial. Belcher, C. C, and Foote, C, concurred.' REIGAL V. WOOD. In the Court of Chancery of New York, before Chancellor Kent, 1815. [1 Johnson's Chancery 402.] The bill which was for an injunction, stated, that on the 23d of Jan- uary, 1801, the plaintiffs purchased of John Smith, 200 acres of land in lot No. 54, in the township of Manlius, for 1,900 dollars. That the land was then subject to a mortgage by Smith to Michael Myers, for 800 dollars, which the plaintiffs paid to Myers, who agreed that the mort- gage might remain for their use, and to secure their title. The plaintiffs took possession of the land, which they divided equally between them. That, in June, 1810, the plaintiffs were informed that Thaddeus M. Wood, defendant, had caused the land to be sold, at the sheriff's sale,, under a judgment in the name of Daniel Avery, (defendant,) against John Smith and Aaron Wood, obtained 13 or 14 years ago, in the Onon- daga court of common pleas, on a promissory note for sixty dollars, for goods sold by Avery, as trustee, to one Dickout, an absconding debtor. That the defendants, T. M. Wood and George Plall, purchased the land at the sheriff's sale. That the plaintiffs applied to Wood on the subject, who, at first, agreed to accept 40 dollars on the judgment, and release the pur- chase, but afterwards demanded payment of another judgment against John Smith, in favour of Peter Smith, for 300 dollars, which Wood alone, or inconjunction with two of the defendants, Isaac and John Delamater, had before purchased off Peter Smith. That the plaintiffs, through ignorance, yielded to the terms demanded, and gave Wood their bonds and mortgages on the promises, for 308 dollars, payable in a short time, with interest. The sum being divided into four equal parts, for which four bonds were given, and Wood and Hall released their claim to the land to each of tlie plaintiffs separately. Tlint, afterwards, on inves- * And son the interesting case of Creen v. Green, 1886, 34 Kas. 740, in which the def(!ndant — a widowed woman — persuaded the one armed plaintiff tf) marry her solely, it would seem, upon the promise to convey to him land which after marriage she conveyed to other parties in trust for the children by lier foriner marriage. CHAP, v.] KEIGAL V. WOOD 467 tigation, the plaintiffs found that John Smith, after the judgment against him, in favour of Avery, had paid the amount of the judgment to John Rappolye, the creditor who had instituted the proceedings against Dickhout, and had paid, in boards, the costs to Wood. That Wood, in order to overreach the purcliase of the land by the plaintiffs, had caused the judgment to be revived by scire facias, v^^ithout the knowledge or con- sent of Avery or Kappelye; and that John Smith, being insolvent, aged, and having removed out of the county, did not attend to the suit. That the judgment of Peter Smith was assigned as above mentioned, with an express agreement that the land of the plaintiffs should not be affected by it, and made solely for the purpose of securing and protecting an- other piece of land claimed by Wood and the Delamaters. That on the revival of the judg-ment by the scire facias, Wood well knew of the pur- chase of the land by the plaintiff's, and their settlement thereon : that the plaintiff, Frederick Reigal, has paid off his mortgage to Wood; but the other plaintiffs being unable to pay, Wood has advertised their lands for sale, under the mortgage, and also put their bonds in suit. And the plaintiffs prayed for an injunction to stay his proceedings, and for relief, &g. The Chancellor [Kent]. It appears to me, from a view of all the facts and circumstances attending this case, that I am bound to consider the judgment upon the scire facias as unduly obtained, and that the de- fendant cannot, in justice and good conscience, be permitted to hold any advantage which he may have obtained under it. It is a well-settled principle, in this court, that relief is to be obtained not only against writ- ings, deeds, and the most solemn assurances, but against judgments and decrees, if obtained by fraud and imposition. Barnesly v. Powell, 1 Ves. 120, 284, 289. Wood, the principal defendant, admits, in his answer, that when he undertook to revive the judgment of Avery & Bennet v. Smith & Wood, there was but 3 dollars and 96 cents of the debt due. His object, cer- tainly, was not that small balance; and it does not even appear that, as to that sum, he had any direction to issue the scire facias, from the per- sons in whose names it was issued, or to whom the money was due. It is evident his object was to secure another and larger demand against Smith, totally unconnected with the judgment, and that, as Smith was insolvent, as well as old, blind, and helpless, he sought to secure this de- mand by a contrivance calculated to defeat the title of the unsuspecting purchasers holding lands under Smith. It is in proof, that he knew that Smith had conveyed his interest in lot 54, in Manlius, to third persons; and the interference is irresistible, from his frequent intercourse with that town, that he knew that the land was in the actual occupation of the purchasers, and had received large and valuable improvements. No notice, however, is given to them, as ter-tenants, of the scire facias. We have reason to presume it was intentionally avoided, and he is content with a service o^the writ on that very old and blind pauper, who had 468 REIGAL v. WOOD [part i. neither interest nor disposition to take care of the suit, and who, about that time, had gone, or removed, to a distant county. A verdict is, accordingly, obtained upon the scire facias, without any opposition from Smith's uninstructed counsel, for the whole amount of the original judg- ment, though he knew, at the time, that it had long before been nearly, if not entirely discharged. He issues his execution, and directs the whole of the judgment to be levied; and the sheriff, under his direction, sells, not upon the premises, but in another town, all the lands of the present plaintiffs, and which had cost them, eight years before, near 2,000 dollars. This sale, as well as the previous proceedings, was unknown to the plain- tiffs, and the lands were bid off by a partner of Wood, for his use, at a nominal sum. This partner says, that he bid to save the debt of him and Wood, and which, as it appears, consisted chiefly of an antiquated ac- count of costs and charges, as attorneys for Smith. Having thus acquired a title. Wood imposes terms upon the plaintiffs as the previous owners of the land. He insists upon the payment of the principal part of his demand against Smith, and compels them to redeem their land by giving him bonds and mortgages to the amount of 308 dollars. Smith denies that any part of the demand is due; and whether it be so or not, the settlement cannot be binding upon the plaintiffs; for the same im- position which attended the judgment, also infected this settlement, as it was made by them, totally uninformed of their rights, and in ignorance of the fraud by which the judgment was procured. I think the weight of evidence is, that the whole of the original judg- ment, costs as well as debt, had long before been satisfied. Smith testifies that he had paid not only the small balance of the debt, but the costs, in boards; and another witness (Hall) says, that Wood had the benefit of some boards upon some claim which Wood had against Smith; and in the account exhibited by Wood, in this cause, he gives no credit, and makes no mention of the boards. I am of opinion, therefore, that Wood cannot be permitted to acquire and hold any advantage whatever under the judgment obtained upon the scire facias, and that the whole proceeding was an imposition upon the plaintiffs. I shall accordingly decree, that the bonds and mortgages men- tioned in the pleadings be given up and cancelled, and that the money which has been paid upon one of the bonds and mortgages be re- funded, with interest; and that the defendant, Wood, pay the costs of this suit; and that the bill, as to the other defendants, be dismissed with- out costs. Decree accordingly. CHAP, v.] BAREOW V. RlilNELANDER 469 BARROW V. RIIINELANDER. In the Court of Chancery op New York, before Chancellor Kent, 1815. [1 Johnson's Chancery 550.] The Chancellor [Kent]. This is a strong and peculiar case, which calls for relief. There appears to be very great reason to presume an abused confidence. The defendant was the confidential clerk of Prior, and kept his cash accounts, and had free access to all his papers and moneys. From the beginning almost of their connection, Prior was em- barrassed, and had i*ecourse to the defendant for the loan of moneys. This created, at once, a delicate relation between the master and the servant; and the rapidity with M'hich loans and debts were accumulated, securities exacted, the load of dependency increased, and blind and necessitous submission yielded, is distressing to learn, even as told in the defendant's answer. There are two witnesses to the charge of usury; and the attempt made, by the defendant, to get rid of the charge, under the explanation of taking compound interest, is not sufficient. The de- fendent does not put himself upon the benefit of the settlements made from time to time, but he, in fact, opens the accounts by his answer, and admits that the entries in the cash books were generally made by him, and that they contain the evidence of his loans. There is, also, proof of mistakes and deficiencies in the cash books, and of alterations. One mis- take, for instance, of a charge, by the defendant, of 5001., on the 15th of June, 1792, is not in the books. Other mistakes are alleged and shown ; other instances of abused confidence are charged, as taking property from Prior, without his assent. In short, there are so many unpleasant and suspicious circumstances attending this case, leading so strongly to an inference of usury, oppression, and fraud, that it appears essential to the honour of the court, and the ends of justice, that all these multiplied settlements and obligations should be set aside, and that an account, at large, from the commencement of their dealings, should be taken and stated. The cases cited by the counsel for the plaintiff, bear very pointedly upon the circumstances of this case, and show, that there is nothing un- usual in granting the relief. Thus, in Bosanquet v. Dashwood, Cases temp. Talbot, 37, a bill was filed by the assignees of a bankrupt, charg- ing the defendant's testator with lending on usury, and that agreements for that purpose were made and repeated from 1710 to 1724. It was a case of apparent extortion and oppression, and the accounts were ordered to be opened, and the demands reduced to moneys really lent, with law- ful interest thereon. So, also, in Vaughan v. Lloyd, cited in 5 Vesey, 48, which was a case of principal and agent, and of abused influence and 470 LIVINGSTON v. IIUBBS [part i. confidence by the agent. A variety of deeds and settled accounts were opened, though the accounts had been settled from time to time, and the defendant insisted on the benefit of those settlements. It appeared that several sums of money were charged imi^roperly, and the accounts were impeached in several points, and the defendant was compelled to prove his accoxmts though he might suffer ; for the Chancellor approved of the doctrine in Piddock v. Brown, 3 P. Wms. 288, that where there are manifest signs of fraud, the obligee ought to be put to the proof of actual payment, and if he suffered, it was owing to his own conduct. The same decision was made in Watt v. Grove, 2 Schoale & Lefroy, 492, which was, also, the case of an agent availing himself of the negligence and extravagance of his principal. Indeed, the taking advantage of a man's necessities is as wrong as taking advantage of his weakness. This is not the case of merely showing mistakes and omissions in a stated ac- count, in which the party is allowed to do no more than surcharge and falsify. Appearances wear a more serious aspect, and the whole account ought to be opened from the beginning, as was done in Vernon v. Vawdy, 2 Atk. 119, after a period of 23 years. I do no more in this case, than has been repeatedly done in other cases which were not more oppressive in appearance. LIVINGSTON V. IIUBBS. In the Court of Chancery of New York, before Chancellor Kent, 1817. [2 Johnson's Cliancery 512.] The bill charged, that Daniel Baldwin, in his lifetime, procured a deed from the plaintiff, of a house and lot, in Brooklyn, by fraudulent repre- sentations and practices; and that the defendant Hubbs was concerned with Baldwin in the fraud; and that, immediately after the deed was so procured, Baldwin confessed a judgment to Ilubbs for 839 dollars, which Hubbs, shortly thereafter, assigned to the defendant Kobbins, and, as the bill charged, with knowledge of the fraud. After the answers of the defendants, the cause was put at issue, and proof taken, and the cause set down for hearing. The Chancellor. The allegation of fraud is abundantly established; and the only point admitting of any real discussion is, how far Bobbins, who appeared to be a purchaser of the judgment for a valuable considera- tion, and to whom no charge of fraud could be imputed, was to be pro- tected in liis lien on the land. Bobbins purchased the judgment subject to all the equity of the plaintiff against it, while it existed in the hands of Ilubbs; and as the title of Baldwin was infected with gross fraud, it CHAP, v.] HOWELL v. BAKEK 471 was null from the bej^inning. The fraudulent judgment, therefore, created no valid subsisting lien. The title to the land never passed from the plaintiff; and there is no rule of law, or equity, to protect the judg- ment in the hands of Robbins, though he may be an assignee for a val- uable consideration, without notice of the fraud, for he took the assign- ment of the judgment at his peril. He took it subject to all the existing vights of the debtor; and these rights could not be varied, or affected, by the assignment, though, perhaps, the right of a third person, depend- ing upon a secret trust, might be affected. Murray & Winter v. Lylburn and others. Ante. 441. The judgment was not an article of ordinary commerce, and it would be repugnant to justice and sound policy, to per- mit fraud to be successful by such a contrivance. The land, therefore, must be decreed to be reconveyed to the plaintiff, discharged of the judgment, and a perpetual injunction awarded against the execution of the judgment upon that land. Decreed accordingly. HOWELL V. BAKER. In the Court of Chancery of New York, before Chancellor Kent, 1819. [4 Johnson's Chancery 118.] Bill filed January 19th, 1818, to redeem land, purchased by C. Baker, defendant, at the sheriff's sale, under circumstances which, as was al- leged, constituted him a trustee for P. Howell, the defendant in the execution. A judgment was recovered in September, 1809, in the Ulster Court of C. P. against P. H., at the suit of J. R. Boyd, for 112 dollars and 95 cents, in which suit C. B., the defendant, and another, were the attorneys for the plaintiff. A fi. fa. was issued, and in 1810, the property of P. H., being a house and about forty acres of land, was advertised for sale. On the 29th of December, 1810, P. H. pa'd the defendant C. B., fifty dollars, and the sale was postponed. The bill stated, that P. H. had paid the deputy sheriff, in November, 1809, 27 dollars and 50 cents, and IS dollars on the execution, in December, 1809. The property was again advertised for sale, and sold on the 15th of May, 1812, at public auction, by the sheriff, to C. B., (who attended as attorney of the plain- tiff, Boyd,) as the highest bidder, for 10 dollars. The bill stated, that P. H. had made several small payments on the judgment ; and that, in 1814, he tendered to C. B. the balance due on the judgment, together with the 10 dollars paid by him, amounting, with interest, to 35 dollars and 15 cents, which he refused to accept; and that C. B. afterwards 3old the 472 HOWELL v. BAKER [part i. premises for 1,200 dollars, to the defendant Clark, who purchased, with full knowledgre of all the circumstances. The bill prayed, that the de- fendants might be decreed to release the premises to the plaintiff, and deliver up the possession, etc. The defendant B., in his answer, denied that he purchased the prop- erty with intent to hold it as security only for the balance due on the judgment, but that he purchased for his own benefit. He alleged, that he afterwards paid Boyd, the plaintiff, the balance due on the judgment; and that 80 dollars were due at the time of sale. It appeared from the evidence taken in the cause, that the property, when it was sold at auction in 1812, was worth about 2,000 dollars; that P. H. was absent from the state at the time; that it was a stormy day, and no persons but the deputy sheriff and B. were present at the sale; that after the sale, B. frequently said, that he would give up the prop- erty to P. H. if he would pay the balance due on the judgment, and the ten dollars, and compensate him for his trouble ; that he had told Boyd, the plaintiff, that he had bid off the property for him ; and that the de- fendant C, before he purchased, knew all the circumstances. The Chancellor. The defendant B. was one of the attorneys to the execution under which the sheriff sold the land, and it might be a question whether an attorney can, in such case, become a purchaser for his own benefit. He is the agent of the plaintiff, and generally, has the control of the execution, and may direct the time and place of sale. It is well known that the sheriff receives his instructions from the attorney, and usually follows them, under the general regulations of the statute, in pressing, or in postponing the sale, and as to the terms to be pre- scribed, and the particular parts of the real estate to be selected. It is dangerous to allow a person who has such a material agency in the sale, the capacity of buying in, on his own account. He who is entrusted with the business of others, ought not to be allowed to make that business an object of interest to himself. It tends to abuse and corruption. It is upon this principle that the assignees of a bankrupt are not allowed to become purchasers on the sale of the bankrupt's estate. The bringing it to sale, and the time and manner of the sale, are very much in their power. A purchase by the solicitor of the assignees is supposed to be within the reason of the prohibition, for he is their agent to direct the sale ; and those who have a duty to perform for others, should not, in the discharge of that very duty, deal for themselves. It has accordingly been held, in England, {ex parte Hughes, 6 Ves. 617. Ex parte James, 6 Ves. 337.) that purchases of the bankrupt's estate, at public sale, by the assignees, or their agent or solicitor, are not valid, but will be con- sidered as made in trust for the persons entitled to the surplus, and will be set aside on equitable terms. In Hall v. Ilallet. 1 Cox, 134, Lord TiiuRLOW observed, that " no attorney can be permitted to buy in things in a course of litigation, of which litigation he has the management. This the policy of justice will not endure." CHAP, v.] HOWELL V. BAKER 473 But though the rule disiiualifying trustees, and particularly solicitors and attorneys, from purchasing at sales brought about through their agency, has strong pretensions to be applied to this very case, I do not perceive it to be incumbent upon me, at present, to decide that point. The purchase by the defendant B. was made under special circumstances, which are sufficient, of themselves, (and i^articularly when taken in con- nection with his character as attorney to the execution,) to constitute him a trustee for the parties, whose interests were concerned in the sale. Boyd, who was plaintiff in the execution, directed the defendant B. to attend and bid off the property, and the defendant B. afterwards con- fessed to his client, that he had done so, and that the deed would be executed to Boyd. He, also, admitted to Howell, the defendant in that execution, that he had made a temporary sale of the property, to prevent the expense of further advertising it, and that he would receipt the exe- cution as soon as it was paid up. These two witnesses establish the fact that the purchase was not intended, at the time, to be absolute, and for the benefit of B. In addition to this proof, the facts admitted by the defendant B., in his answer, that there was not above eighty dollars due on the execution, at the time of sale, including his costs, and that he bid only ten dollars, though he afterwards discharged the execution, and sold the farm for 1,200 dollars, lead strongly to the same conclusion. It would be very inequitable, even if it were lawful, to allow the pur- chaser, in such case, to appropriate the bid to himself. Non omne, quod licet, honestum est, is the observation of Palus, as quoted in the Digest, 50, 17, 144, and we have a similar observation from another Paul, who received inspiration from a purer source than the Roman law, 1 Cor. vi. 12. Indeed, such gross inadequacy of price, when taken in connection with, the fact that the sale was on a stormy day, and that no persons were pres- ent but the sheriff and the defendant B., would well warrant an inference of fraud on any other ground than the one I have taken. The most rea- sonable conclusion, and the only one honourable to the defendant B., is, that the purchase was intentionally made, at the time, in trust for the respective interests of the parties to the execution. Howell did nothing, afterwards, to release his right, and discharge the trust, and when B. sold to the defendant C, the right of Howell, or his assignee, to redeem the property, existed in full force. Nor is the defendant C. entitled to protection as a bona fide purchaser, without notice. It is clearly established by the testimony, that he pur- chased with knowledge of all the material circumstances attending the purchase by B., and the right of redemption remained in full force against him. He purchased at his peril, and after being duly apprized of the infirmity of the title of B. I shall, accordingly, decree, that the plaintiff is entitled to redeem the estate, upon paying the balance due upon the execution, with interest, after deducting all payments made by Howell to the sheriff, or to the de- 474 ROSS V. CONWAY [part i. feiidant B., and upon paying the amount, with interest, of all the incum- brances upon the estate existing at the time of the sale, and subsequently discharged by either of the defendants, and upon paying the cash value of all hona fide and substantial improvements made by the defendant C, since his purchase. I shall direct a reference to ascertain the amount of the same. Decree accordingly.^ ROSS V. CONWAY. In the Supreme Court of California, 1892. [92 California 632.] Appeal for a judgment of the Superior Court of Sonoma County, and from an order denying a new trial. The facts are stated in the opinion of the court. Harrison, J. — The plaintiff, as the sole heir of his mother, Elizabeth G. Ross, brought this action to cancel and annul two certain deeds of trust conveying certain real estate in Santa Rosa, executed by his mother, August 11, 1888, and August 18, 1888, respectively, alleging that at the time of their execution his mother was weak in body and that her mind was impaired, and that the defendant Conway, who was the pastor of the Roman Catholic church of Santa Rosa, of which she had been for many years a member, and who was also her spiritual adviser, had there- by acquired great influence over her, and, taking advantage of such influence and of her mental weakness, had caused her to execute the said deeds of trust for the benefit of himself and of the church of which he was the pastor. The defendant denied these allegations, and the cause was tried by the court, a jury having been called in as advisory to the court upon certain issues. The verdict of the jury and the findings of the court were in support of the allegations of the complaint, and judgment was rendered in favor of the plaintiff. A motion for a new trial having been made and denied, an appeal has been taken from both the judgment and the order denying a new trial. The two deeds of trust are substantially the same, the last one having been executed merely for the purpose of correcting an crroneoiis descrip- tion in the first. Under the trust created by the deeds, the trustees are directed to sell one of the parcels of land " as soon as practicable," and out of the proceeds thereof apply eight thousand dollars in the improve- ment of the other parcel, and pay the remainder of the proceeds to the defendant Conway. Out of the income to be derived from the parcel 'And sec further, tlio opinions of Cliancollor Kent in tlic following cases: Troup V. Wood, 1810, 4 .Tohns. C'h. 228; Lupton v. Cornell, 1819, 4 id. 262; Chcsterman v. Gardner, 1820, 5 id., 29. CHAP, v.] ROSS r. CONWAY 475 to be improved, seventy-five dollars per month was to be paid to the plain- tiff, and the remainder, monthly, "to the pastor of the Roman Catholic church in Santa Rosa, to be disbursed by him in such manner as he may deem charitable." Other provisions, contingent upon the death or change in circumstances of the plaintiff, are imnecessary to be rej eated here. The issues before the court were, in substance, whether Mrs. Ross was, at the respective dates on which the deeds of trust were executed, of weak mind, or able to comprehend the provisions of the instruments; and, whether the defendant Conway used the influence which he had acquired over her by virtue of being her spiritual adviser for the purpose of pro- curing her to make such disposition of her property. Upon these issues there was much conflicting evidence before the court, both in the testi- mony of the witnesses who were examined, as well as in the circum- stances under which the instruments were executed and the purposes held by Mrs. Ross with reference to her son and to the church. Upon the evidence before it, the court found in favor of the plaintiff. This finding was in accordance with the verdict of the jury, and upon a motion lor a new trial, in which the evidence was again brought before the court for consideration, it adhered to its former conclusion. Under these circum- stances, we cannot disregard its finding. Inasmuch, however, as counsel have elaborately argued the facts, we have examined the record, and are of opinion that the evidence fully justifies the findings of the court. The court finds that at the dates of the execution of the deeds of trust Mrs. Ross was of weak mind and in a dying condition, and that she died on the 20th of August; that the defendant Conway was, and had for a long time previously been, the pastor of the Roman Catholic church at Santa Rosa, and the spiritual adviser of Mrs. Ross; that a confidence was reposed in him by her, and that there existed on his part an influence and apparent authority over her arising out of his relation to her as her spiritual adviser, and that he took an unfair advantage of this influence, and used this confidence and authority for the purpose of procuring her to execute the two deeds of trust. The court also finds that Mrs. Ross had in December, 1887, executed a will of all her estate, with the exception of some minor legacies, in favor of the plaintiff herein, and that the provision in the deeds of trust for the defendants other than the defendant Conway were without any consideration from them, but were made solely through the influence of Conway. The rule is inflexible that no one who holds a confidential relation towards another shall take advantage of that relation in favor of himself, or deal with the other upon terms of his own making; that in every such transaction between persons standing in that relation the law will presume that he who held an influence over the other exercised it unduly to his own advantage, or in the words of Lord Langdale in Casborne v. Barsham, 2 Beav. 78, "the inequality between the transacting parties is so great, that, without proof of the exercise of power beyond that 476 ROSS V. CONWAY [part i. which may be inferred from the nature of the transaction itself, this court will impute an exercise of undue influence" ; that the transaction will not be upheld, unless it shall be shown that such other had independ- ent advice, and his act was not only the result of his own volition, but that he both understood the act he was doing and comprehended its result and effect. This rule finds its application with peculiar force in a case where the effect of the transaction is to divert an estate from those who by the ties of nature would be its natural recipients, to the person through whose influence the diversion is made, whether such diversion be for his own personal advantage, or for the advantage of some interest of which he is the representative. It has been more fre- quently applied to transactions between attorney and client or guardian, and ward, than to any other relation between the parties, but the rule itself has its source in principles which underlie and govern all con- fidential relations, and is to be applied to all transactions arising out of any relation in which the principle is applicable. It is termed by Lord Eldon " that great rule of the court that he who bargains in any matter of advantage with a person placing confidence in him is bound to show that a reasonable use has been made of that confidence." Gibson i'. Jeyes, 6 Ves. 278. It was said by Sir Samuel Romilly, in his argument in Huguenin v. Baseley, 14 Ves. 300, that " the relief stands upon a general principle applying to all the variety of relations in which dominion may be exercised by one person over another," — a principle which was afterwards affirmed by Lord Cottenham in Dent v. Bennett, 4 Mylne & C. 277, saying that he had received so much pleasure from hear- ing it uttered in that argument that the recollection of it had not been diminished by the lapse of more than thirty years. That the influence which the spiritual adviser of one who is about to die has over such person is one of the most powerful that can be exercised upon the human mind, especially if such mind is impaired by physical weakness, is so consonant with human experience as to need no more than its statement; and in any transaction between them wherein the adviser receives any advantage, a court of equity will not enter into an investigation of the extent to which such influence has been exercised. Any dealing between them under such circumstances will be set aside as contrary to all principles of equity, whether the bene- fit accrue to the adviser or to some other recipient who, through such influence, may have been made the beneficiary of the transaction. These principles have been so invariably announced whenever the ques- tion has arisen, that a mere reference to the authorities will suffice. Norton v. Relly, 2 Eden, 280; Huguenin v. Baseley, 14 Ves. 273; Thompson v. ITeffernan, 4 T)ru. & War. 201 ; Dent v. Bennett, 4 Mylne & C. 269; In re Welsh. 1 Redf. 24G; Richmond's Appeal, 59 Conn. 226; Ford v. Ilennessy, 70 Mo. 580; Pironi v. Corrigan, 47 N. J. Eq. 135; Connor v. Stanley, 72 Cal. 556; 1 Am. St. Rep. 84; 1 Bige- low on Fraud, 352; Story's Eq. .Tur., sec. 311. CHAP, v.] ROSS V. CONWAY 477 The finding of the court that Mrs. Ross did not have any independent advice upon the subject of making the deeds of trust is fully sustained by the evidence. It appears from the record that the attorney who pre- pared the instruments was introduced to her by Conway, and that the only persons with whom she had any interview, or from whom she could receive any advice respecting the same, were this attorney and the defendant Conway. On the 9th of August she had expressed to Conway a desire to make a testamentary disposition of her property, and upon his suggestion that Mr. Collins was a suitable person, she requested that he would send him to her at the hospital where she was lying. He thereupon sought Collins, and, telling him the wish of Mrs. Ross, accompanied him to the hospital. On their way he told Collins of the mode in which she proposed to dispose of her property, and, after their arrival, remained in the room with them while she was giving directions about the will, going out, however, occasionally, for short intervals, to visit other people in the hospital, and leaving the building before the will was formally executed. Two days later he visited Collins at his office, and after hearing the will read, he made to Collins a suggestion of some changes, and whether a deed of trust would not be preferable to a will. An appointment was then made between him and Collins to meet that afternoon in the room of Mrs. Ross at the hospital. After their arrival at the hospital, Conway made a suggestion to her that she execute a deed of trust instead of a will, and also other suggestions in reference to her disposition of the property. Only himself and Collins were in the room during this consultation, he, however, leaving it temporarily a few times during the period over which the interview extended, but remaining until Collins had received all the directions that she gave. Assuming that by virtue of his relation to her he had acquired an influence over her, it must be held that in the transaction under investi- gation there was an undue exercise of such influence; that by not in- sisting that she should have independent advice, and by continuing to remain in her presence during the interview with the only other per- son whom he permitted to see her, he exercised an influence over her actions, which, though unseen and inaudible, was none the less effective in its results. "The question is," said Lord Eldon in Huguenin r. Base- ley, 14 Ves. 300, "not whether she knew what she was doing, had done, or proposed to do, but how the intention was produced; whether all that care and providence was placed round her, as against those who ad- vised her, which from their situation and relation with respect to her they were bound to exert on her behalf." "Wliile the contract of purchase made between the defendant Con- way and the trustees under the instruments sought to be annulled was irrelevant to any material issue before the court, and would have been properly excluded from evidence, we are unable to see that its admission could in any way have been prejudicial to the rights of the appellants. 478 ROSS V. CONWAY [part i. The judgment and order denying a new trial are affirmed.' ' Corporation of Latter Day Saints v. Watson, 1902, 25 Utah, 45. In Allcard v. Skinner, 1887, L. R. 36 Ch. Div. 145, the facts appeared to be that the plaintiff, a young woman of twenty-seven, becoming interested in charitable work, was introduced, through the good offices of a Rev. Mr. Nihill, her confessor, to the defendant, the founder and lady superior of a Protestant sisterhood. After some considerable association with the members of the sisterhood in charitable work, the plaintiff was admitted as a member of the organization. On entering the society she made certain vows (framed by the Rev. Mr. Nihill), by which she promised to devote her property to the purposes of the sisterhood. In accordance with these she made a will, leaving all of her property to the defendant. She also made valuable gifts to the defendant, including large sums of money and certain railway stock. Some eight years later, becoming dissatisfied, she left the order, and a few days later joined the Roman Catholic Church. She then brought suit to recover certain of the gifts made to the defendant. In the course of his opinion, Lindley, L. J., said: "There is no statutory law in this country prohibiting such gifts unless what is given is land or money to be laid out in land. These are provided for by the Mortmain and Charitable Uses Acts. But they have no appli- cation to this case. The common law, as distinguished from equity, does not invalidate such gifts as these. There being no duress or fraud, the only gi'ound for impeaching such gifts at law would be want of capacity on the part ot the donor; and although the plaintiff was a religious enthusiast, no one could treat her as in point of law non compos mentis. There is no authority whatever for saying that her gifts were invalid at law. It is to the doctrines of equity, then, that recourse must be had to invalidate such gifts if they are to be invalidated. The doctrine relied upon by the appellant is the doctrine of undue influence expounded and enforced in Hugiienin r. Baseley, 1 4 Ves. 273. and other cases of that class. These cases may be sub- divided into two gioups, which, however, often overlap. "First, there are the cases in which there has been some unfair and improper conduct, some coercion trom outside, some overreaching, some form of cheating, and generally, though not always, some personal advantage obtained by a donee placed in some close and confidential relation to the donor. Norton v. Relly, 2 Eden, 286 ; Nottridge v. Prince, 2 Giff. 246 ; Lyon v. Home, Law Rep. 6 Eq. 655, and Whyte v. IMeade, 2 Ir. Eq. Rep. 420, all belong to this group. In Whyte v. Meade a gift to a convent was set aside, but the gift was the result of coercion, clearly proved. The evidence does not bring this case within this group. "The second group consists of cases in which the position of the donor to the donee has been such that it has been the duty of the donee to advise the donor, or even to manage his property for him. In such cases the Court throws upon the donee the burden of proving that he has not abused his position, and of proving that the gift made to him has not been brought about by any undue influence on his ])art. In this class of cases it has been considered necessary to shew that the donor had independent advice, and was removed from the influence of the donee when the gift to him was made. CHAP, v.] PROOF V. IIINES 479 PROOF V. IIINES. In Chancery, before Lord Chancellor Talbot, 1735. [Cases Tempore Talhot 111.] The plaintiff being intitled, in right of his wife, to some part of the hite Sir Thomas Coleby's estate, and being a very mean illiterate person, and in very poor circumstances, applied to the defendant, (a brazier by trade,) and his wife to assist him in making out his pedigree, and getting such proofs as were necessary to the making out his title to this estate; the defendant telling him. That such things could not be done without nionej^; and he answering. That he had none, nor did not know where to raise any without the defendant's assistance, desired him to advance it, and he would repay him : The defendant accordingly laid out several sums; and the defendant's wife employed several persons to search regis- ters, &c. for the plaintiff; pending the suit the defendant's wife often declared, That she thought herself and her husband intitled to a good gratuity for their trouble and assistance of the plaintiff ; but was resolved not to trust to the plaintiff's generosity, but to bind him as fast as pen and ink could bind him. The plaintiff coming some time after to the de- fendant's wife, desired her to continue her and her husband's care for his affairs; she thereupon pressed him very much for the payment of what money had been laid out by them ; whereupon he offered to give a bond for 10001. payable to the defendant in a year, for what services they had already done, and for such care as they would hereafter take of his af- fairs; to which the defendant's wife replied, he might take what time he pleased for payment of the bond, but pressed him very hard for re- payment of what had been laid out by her husband and her : the plaintiff gave her his bond for 10001. for the use of the defendant her husband Hugiienin v. Baseley was a case of this kind. The defendant had not only acquired considerable spiritual influence over the plaintiff, but was intrusted by her with the management of her property. His duty to her was clear, and it was with reference to persons so situated that Lord Eldon used the language so often quoted and so much relied on in this case. He said, 14 Ves. 299: 'Take it that she (the plaintiff) intended to give it to him (the defendant) ; it is by no means out of the reach of the principle. The question is not whether she knew what she was doing, had done or proposed to do, but how the intention was produced; whether all that care and provi- dence was placed around her as against those who advised her, which, from their situation and relation with respect to her, they were bound to exert on her behalf.' This principle has been constantly recognized and acted upon in subsequent cases, but in all of them, as in Huguenin v. Baseley, 14 Ves. 273, itself, it was the duty of the donee to advise and take care of the donor. Where there is no such duty, the language of Lord Eldox ceases to be applicable." n 480 PEOOF V. HINES [paet i. after the recovery of some part of the estate by the plaintiff; this bond was put in suit, and now the plaintiff brought his bill to have it set aside as unduly and unconscionably obtained, by taking advantage of the dis- tress he was then under. It was in proof in the cause, that at the time he gave this bond he was in the meanest circumstances, being reduced so low as to live upon what broken scraps of meat he could get from taverns and such places. Lord Chancellor. I have been a good deal doubtful in this case : for, as on the one hand it is intirely reasonable to leave people at liberty to dispose of their property as they think fit; so on the other hand, it is reasonable to prevent any imposition in such disposal : and if here has been no imposition on the plaintiff, and that all his defence be his poverty, or the inconvenieney it may be to him to pay this sum, that will not be a ground for relief. But as this case is circumstanced, the plain- tiff's poverty is not to be omitted in the consideration of the transaction. His circumstances were as mean as can be imagined, and no certainty that he should be ever able to discharge any part of this bond; and yet he gives an obligation for 10001. to be paid, at all events, within the year. A poor illiterate man, who applies to the defendant and his wife for aid in pursuing his claim : they answer, that registers could not be searched, nor other things done without money: he thereupon replies, that he has none, but desires the defendant to lay it down for him. The cause goes on, and pending this suit, the defendant's wife presses for the money laid out ; whereupon the plaintiff declares, that for the services they have done, and he hoped they would continue, he would give a bond; upon which the wife replies, he might take what time he pleased for the pay- ment of the bond; but at the same time again presses for repayment of the money laid out by her husband and her, and then the bond is given. So that here is a plain contract between them : and how can I consider it as a gratuity, or otherwise than as a contract? Now though a mere voluntary contract is not to be set aside purely and simply because it is voluntary; yet that differs widely from the present case; which was not intended as a bounty, but as an execution of an original contract for the services already done. Had an attorney, pending the suit, taken such a bond as this upon the same transaction, would not the court set it aside? or would it suffer it to stand any farther than as a security for what was justly and legally due? The rule. That a mischief is rather to he suf- fered than a general inconvenience, docs not at all affect this- case ; for, it would be a much greater inconvenience to leave men under difficulties and distresses ojkhi to all the oppression that other people may please to make them undergo. This is the reason upon which the court relieves against bonds given by young heirs, (Walter v. Dalt, 1 Chanc. Cas. 276; Barny v. Beak, 2 Cha. Cas. 136; Barny v. Pitt, 2 Vern. 14; Nott v. Hill, 1 Vern. 167; Knott v. Johnson, 2 Vern. 27; Wiseman v. Beake, 2 Vern. 121; James v. Oades, 2 Vern. 402; Earl of Ardglasse v. Muschamp, 1 Vern. 237; Bill v. Price, 1 Vern. 467; Lamplugh v. Smith, 2 Vern. 77; CHAP, v.] NICHOLLS v. NICIIOLLS 481 Curwen v. Milner, 3 P. Will. 292, in notes (c) ; Twisleton v. Griffith, 1 P. Wil. 310; Earl of Chesterfield v. Jansen, 1 Atk. 342, 351, and 2 Ves. 144, 155, S. C. ; Barnardiston v. Lingood, 2 Atk. 133 ; Sir Will. Stanhope v. Cope, 2 Atk. 231 ; Gwyne v. Heaton, 1 Bro. Cha. Rep. 1 ; Heathcote v. Paignon, 2 Bro. Cha. Rep. 167, are eases in which this court has relieved against unconscionable bargains, and cancelled improvident contracts en- tered into by young heirs.) and marriage-brocage bonds; and will not suffer any advantage to be taken of the extravagance and want of judg- ment, ill the one case, and of the strong bias to obtain what is desired in the other. The only difficulty that arose with me was, whether the de- fendant had any share himself in the transaction? and that where fraud is pretended it must be fully proved. Here indeed the husband was not present when the bond was executed; but still, I think, there is sufficient ground for relief: for, here the wife was party to all the transactions in searching registers, &c. The contract for the bond was for their joint service; and though she did not press for the bond, yet she pressed for what worked more strongly, viz., the repayment of the money which she and her husband had lain out at the time that he was not worth a shilling, and in the midst of the pursuit of his cause: and when this comes to be coupled with that other saying of her's, That she would not trust to his generosity, hut hind him as fast as pen, ink and paper could hind him, it makes it plain that it was obtained of the plaintiff when under fo?'ce and necessity; the pressing for the repayment being almost as strong as if she had actually required the bond. And so decreed the bond to stand as a security only for so much as had been actually laid out with interest ; and left the defendant at liberty to bring his quantum meruit at law for what he deserved for his pain and trouble. Reg. Lib. 1734. fol. 289. 414 S. C. NICHOLLS V. NICHOLLS. In Chancery, before Lord Chancellor Hardwicke, 1737. [1 AtTcyns 409.] Though a man is arrested by due process at law, if a wrong use is made of it against the person under such arrest, by obliging him to execute a conveyance which was never under consideration before, this Court will construe it a duress, and relieve against a conveyance executed under such circumstances. 482 NEILSON v. McDONALD et al. [part i. NEiLSON V. Mcdonald et al. In the Court of Chancery, of New York, before Chancellor Kent, 1822. [6 Johnson's Chancery, 201.] The Chancellor [Kent]. Before I enter on the discussion of the merits of this case I must dispose of a preliminary question respecting' the competency of the testimony of the defendants G. and L., who were examined as witnesses for their co-defendants, saving all just exceptions.' In the examination of the merits the testimony of the two defendants does not appear materially to alter or affect the conclusions which follow necessarily from a review of the pleadings and proofs. The sale complained of was very evidently held and conducted by concert among all the defendants, and the object of the combination was to enable the defendants McD. and E. to buy in the property of the plaintiff at an enormous sacrifice of it, in order to indemnify themselves for the hazard or the loss of their debts against an insolvent son of the plaintiff, or else to coerce the plaintiff by these means to assume those debts of his son. Either motive was unconscientious and one which the law will not recognize and sanction. The defendants disclaim any such combination, but the facts admitted and proved do, in ray judgment, dis- credit their denial. The defendant McD., who was the chief author of the transaction, and the most deeply interested in the success of the plot, admits in his answer that " he did require payment in specie at the sale, with the view of making advantageous purchases of property at the sale, in the hope of thereby saving a portion of the large amount justly due him from the son of the plaintiff." The defendant G., who was bound to have exercised a sound discretion, according to his own judgment, in the time, mode, and terms of sale, admits that when the plaintiff asked for a postponement of the sale he replied " that he should follow the directions of McD., the plaintiff in the execution, and proceed to sell " ; and " that before the sale commenced W. McD. informed him that he would require payment from him in specie, and that G. then declared that he should sell the property for ready pay in specie." The defendant L., who disclaims in his answer of having an interest in the execution under which the sale was made, and all concert and combina- tion in the sale, admits that he purchased a number of articles, such as three pleasure sleighs, a riding chair, a wagon and harness, and a quan- tity of corn and hay, for very small prices, which he states, to the extent of $25; and that all the purchasers except McD. and him had been required to make payment in specie, and that upon the settlement be- tween the plaintiff and McD. he consented to give up what he purchased; ' So mucli of tlic ojiiiiion us relates to this question has been omitted. CHAP, v.] NEILSON V. McDonald et al. 483 and yet he says there was no combination ! So the defendant E. admits in his answer that he attended the sale, " in the hope of making ad- vantageous purchases thereat, and of thereby saving his demand against the son of the plaintiff, or some portion thereof." It is in proof that the defendant E. came to the sale prepared with specie in his pocket; and he gave up his purchases after the plaintiff had assumed his sou's debt to him ; and yet he also denies all concert and combination ! The deputy sheriff, G., plainly lent himself to be the agent of McD. in this scene of oppression, and he is justly censurable for the abuse of his discretion as a public officer, and by an unwarrantable use of his process, for the purpose of giving effect to this unlawful combination. The case, under all its circumstances, strikes me as a grievous instance of the abuse of power, for the purpose of oppression and extortion. To give a just view of the case it will only be necessary to state a few of the prominent facts. The plaintiff was a man of large real and personal estate, to the amount of from ten to seventeen thousand dollars, according to different estimates. This fact was of public notoriety, and well known to the defendants. The forced sale and the refusal of delay, and the demand of specie, were unmitigated acts of severity for the sole purpose of ex- tortion. The execution was for $480.83, and it was levied while the plaintiff was absent at New York, and the day of sale was fixed at the early day of the 22d of November, which was some weeks before the return day of the execution^ The defendant G. told a witness (John Hunter) that his object was to seize and sell the property of the plain- tiff as soon as the law would permit, and he showed the execution to the witness, and mentioned that the plaintiff was absent at New York, and that he was afraid he would be home before the sale, and get an order to stay it. This witness was a deputy sheriff, and said that the conversation took place on the day of levying the execution. The de- fendant G., whose deposition has been admitted, for the reasons already stated, admits he had a conversation with Hunter relative to the execu- tion and his proceeding on it, and undertakes to give, " as near as he can recollect," the conversation. He admitted he told the witness that when the plaintiff directed him to close the execution immediately he always did it; and that, "according to the best of his recollection," he did not make the observation charged upon him. This defendant G. is not an unexceptionable witness, considering the charges against him which have been made in the bill and proved, and considering that he was testifying under the influence which his character as a defendant, and his hazard of responsibility for costs in that character, would natur- ally promote. I have no doubt he used substantially the language im- puted to him, and which marked the design of the combination. So, also, on the evening of the day of the sale all the defendants, and princi- pally McD. and G., were engaged in conversation on the events of the day, and they said, -in effect, that they had brought matters to bear just 484 NEILSON v. McDONALD et al. [part i. as they wished, and had bought in the ont-door personal property of the plaintiff for about $200, and brought him to a compromise for the debt due from his son. At the sale the defendant G. resisted all reasonable offers for delay, and he admits that before the sale the plaintiff' requested a postpone- ment, and he said he should follow the directions of McD. A son of the plaintiff (John Neilson, Jr.) says that before the sale commenced G. said he had come to make a forced sale of the property of the plaintiff, and that he must have the money immediately and in specie, and he resisted the offers of the plaintiff of giving any security for a delay of a few hours, or until the next day. The defendant G., in his answer, denies the fact of this previous conversation; yet his conduct and declarations, during the whole course of the day, were precisely of the same character. A neighbor of the plaintiff (John Walker), of property and credit, and known as such to the defendant McD., purchased for $61 some articles worth $140, and he offered to pay in current bills im- mediately, or in specie the next day, and both offers were rejected by the defendant G., at the instance of the defendant McD., and the same articles were immediately put up again and bid off by the defendant McD. for $30. The defendant McD. then told the witness lie did not dispute his word or credit, but he had then got the business so fixed that it would not do to take any man's word, for he could then get his money, and he would have it. Another witness (Jacob Sanford) heard the plaintiff offer the defendant G., that if he would wait until the next day he would pay him in specie, and give him satisfactory security for the payment. Another witness (R. M. Livingston) remonstrated with the defendant G. against the proceedings at the sale, as oppressive and un- just, and contrary to his duty, and he repeated to the defendant G. the offers of the plaintiff to procure the money in one hour, or if specie was required to procure it as soon as possible from Waterford, and to give any seciirity for the fulfillment of the offer. The defendants wholly disregarded the offer, and the defendant G. declared the determination not to stay the sale on any security or on any account, unless the exe- cution was immediately paid in specie. In the evening, after the sale, either the defendant G., or McD., in the presence of the other, said, in the hearing of the witness (Walter Broughton), that the plaintiff wished to stop the sale to get an opportunity to procure the money, but that McD. had directed the sale to proceed, declaring "he must be a Turk that day." Property to the value of $1,800 or $2,000 was sold for less than $300; and about three o'clock in the afternoon, when all the out-door prop- erty of the plaintiff had ])een swept off, and the defendant G., with his coadjutors, was about to 7)roceed to sell the furniture within the house, the friends of the plaintiff, to save his family from distress and him from ruin, pressed him loudly to come to terms of accommodation. He did so, and the defendant McD. extorted a bond and mortgage from him CHAP, v.] NEILSON V. McDONALD et al. 485 for $2,500, covering not only tlie ainount of tlio execution, but nearly $2,000 for demands which the defendant McD. had against a son of the plaintiff. A decisive proof of the concert with which the three defendants, McD., L., and E., acted at the sale, and of the unjust and oppressive design with which they were actuated, is derived from the fact that upon the settlement all those defendants readily surrendered up the property which they had purchased. It is perfectly apparent that this settlement, and the giving of the bond and mortgage and note, was not a free and voluntary act of the plaintiff, but that he was coerced into it by the distress under which he labored, from the severe conduct of the officer, and the ruin that was overwhelming him. There was no time given for the parties to cool and reflect, nor for the mind of the plaintiff to be relieved from the terror of the proceeding. The settlement was made dum fervet opus, and to talk of a bond and mortgage being freely given, while the victim lay bleeding at the spoiler's feet, is absurd. Such abuse of process is not to be tolerated. It would bring disgrace upon the administration of justice. Nothing can be more injurious to public morals, or excite greater alarm in the minds of the people, than to suffer the process of law to be made the instrument of extortion. It cannot be doubted that this court ought to afford ample redress in such a case, and the relief .sought is conformable to the established principles of equity, and within the undoubted and indispensable jurisdiction of the court. In Proof V. Hines, Cases temp. Talbot 111, a bond was obtained, not purely voluntarily, but under necessity. Advantage was taken of the party's circumstances and distress, and the Chancellor ordered the bond to stand as a security only for what was truly due at the time. So, in Gould V. Okeden, 3 Bro. P. C. 560, a conveyance obtained by taking an unreasonable advantage of the party's distress, ignorance, and depend- ence, was ordered to stand as a security for what was bona fide due. The same doctrine was declared in Kendrick v. Hudson, 6 Bro. P. C. 614, and in Thornhill v. Evans, 2 Atk. 330. In the latter case Lord Hard- wiCKE set aside a deed obtained by fraud and imposition, and declared that where there was an act of extortion the court would decree the party to refund. The opinion of the Chancellor in Nicholls v. Nicholls, 1 Atk. 409, is much in point. He said that though a man be arrested by due process of law, yet if a wrong use be made of the arrest by obliging him to execute a conveyance which was never under consideration before, the court would construe it a duress, and relieve him. The cases which have been mentioned are only familiar illustrations of the ordinary doctrine and practice of the court. The conduct of the plaintiff in reference to other and prior transac- tions has nothing to do with this act, and forms no justification or ex- cuse for it. The execution itself, which was so misapplied, was the result of a replevin suit mentioned in the proofs, and embraced all the 486 FULTON v. LOFTIS [part i. claims of the defendant McD. in relation to it. If the plaintiff was ac- countable to that defendant for the proceeds of the timber, of which so much has been said in. the case, the defendant McD. had his remedy by- suit, in the regular course of justice. It is altogether inadmissible to receive any counter-claim or demand, by way of set-off, against the right of the plaintiff, resting in tort, and founded on the illegal combina- tion, the abuse of process, and the oppression of which he has been made the victim. The plaintiff was not liable for the debts of his son, and the pretense that the plaintiff voluntarily undertook to discharge those debts with the anticipated portion of his son's share, in expec- tancy of the paternal estate, is a very lame pretext for the extortion, and is no alleviation of the proceeding. There is no rule of law founded on sounder principles of policy or more conducive to the safety of private right than that which forbids one tort or injury to be set off by way of compensation for another. It would be allowing parties to avenge with their own hands their own injuries, and would in its consequences recall the tumult and violence of the barbarous ages. In the case of spoliation under the Eoman law no compensation was allowed to be opposed against the demand for restitution, according to the maxim of the civil and which is that of the common law: Spoli- atus ante omnia restituendus. Pothier Trait, des Ob. s. 589; 2 Inst. 714. It is admitted that the plaintiff has made a tender of the debt and costs due on the execution, and offered to deliver up the assignment of the judgment and the note to the defendant McD., and has demanded a return of his bond and mortgage.^ FULTON V. LOFTIS. In the Supreme Court of North Carolina, 1869. [63 North Carolina 393.] Bill, set down for hearing upoai pleadings and proofs, at Spring Term 1868 of the Court of Equity for Buncombe, and by consent transferred to this Court. The plaintiff alleged, that in 1859, he contracted to sell a tract of land to the defendant, at the price of $412.50, for which he took two notes of the defendant, payable in one and two years, and executed a bond to make title when the purchase money was paid, and that the ' Tlift Ifarncd Clinnffllor tlioreforo docliirod tlie sale oppressive and illegal; llie hfind and mortfjajie, as liaving heen unduly and fraudulently obtained, were directed to stand only for tlie ajnount due on the exeention. with interest and eosts, and on payiiient of that amount, to I)e delivered up and cancelled. CHAP, v.] EAU V. CATHERINE B. VON ZEDLITZ 487 defendant was put into possession; that afterwards, in 1865, the de- fendant, on the pretence of calculating the interest, induced the plaintiff to let him take the notes into his hands, whereupon he put them into his pocket, pulled out a pistol, and walked off, telling the plaintiff not to follow him. The bill admits a payment of $100 in Confederate notes, in 1863. The prayer is for a decree rescinding the contract; an account of the rents and profits; and that the defendant be also decreed to give up possession. Pearson, C. J. The plaintiff has misconceived his remedy. When a contract is obtained by fraud or duress, a Court of Equity will entertain a bill for its rescission ; but the plaintiff must allege that he was induced to enter into the contract, by reason of such fraud or duress. A bill for recission on the ground of fraud or duress perpetrated after the contract is made, is one of the first impression, and there is no principle upon which it can be maintained. The question is too plain to allow of discussion: Addington v. McDonnell, at this term. The plaintiff having the legal title, may take possession, and thus force the defendant to file a bill for a specific performance, when the plaintiff may rely upon the alleged fraud, or duress, as a ground to induce the Court to refuse to entertain the bill; or the plaintiff may file a bill for specific performance, and ask for a reference as to the amount of the purchase-money remaining unpaid, and thus bring up the question, as to the manner in which the defendant obtained possession of the notes, and thus the controversy may be settled. But as we have seen, the idea of a decree for recission, for matters occurring six years after the contract was made, and after it had been in part performed, is out of the question. Let the bill be dismissed, but without costs as to the defendant Loftis. Per Curiam. Bill dismissed. RAU V. CATHERINE B. VON ZEDLITZ and Others. In the Supreme Judicial Court of Massachusetts, 1882. [132 Massachusetts, 164.] Exdicott, J. This is a bill in equity, under the Gen. Sts. c. 113, § 2, cl. 11, brought against the Baron and Baroness Von Zedlitz and the trustee under her marriage settlement. The plaintiff alleges therein that the Baroness is indebted to him upon two drafts, accepted by her at Dresd;m, in Saxony, on the day previous to her marriage, which are now due and unpaid, and he seeks to obtain a decree that the trustee of the marriage 488 KAU V. CATHEKINE B. VON ZEDLITZ [part i. settlement shall apply to the payment of the drafts so much of the trust fund as is necessary. The defense is that the acceptance of the drafts was forced upon, the Baroness by threats and undue influence, and is therefore invalid and cannot be enforced in a court of equity, and that, under the pro- visions of the marriage settlement, the fund cannot be applied to the payment of these drafts. As the case is presented to us, no question arises upon the second branch of the defense. The presiding judge heard the case on the evi- dence and dismissed the bill on the ground that the acceptance of the drafts was obtained by threats and undue influence; from his decision the plaintiff appeals, and the evidence upon which the finding is based is reported. Upon a careful examination of the evidence, we cannot say that the decision upon the question of undue influence is erroneous. The record is voluminous, but the principal and material facts are as follows : The Baroness Von Zedlitz, whose maiden name was Kelscy, and who was a native of this commonwealth, was married on April 12, 1877. While traveling in Europe she became engaged, in December, 1876, to the Baron Von Zedlitz. She possessed considerable property in her own right, and a marriage settlement was prepared here at her request and sent to Dresden the following April. It was executed by her and her intended husband on April 10, two days before her marriage. The Baron Von Zedlitz was at that time largely indebted to the plaintiff, and there was evidence that some of the money was advanced to the Baron upon the promise by him to repay the plaintiff on his marriage with Miss Kelsey, whom he represented to be possessed of a large fortune. On April 9 the plaintiff went to Dresden for the purpose of obtaining from Miss Kelsey payment of his debt. Being informed of the mar- riage settlement, he endeavored without success to persuade the Baron to prevent its execution. On the following day, which was April 11, Miss Kelsey was induced to go to the office of a notary public to make some arrangement about a sum of money which the Baron's mother, ^Irs. Von Winning, informed her the Baron owed to the plaintiff. She went, accompanied by the Baron and his mother, about five o'clock in the afternoon, and found there the notary, the plaintiff, another creditor of the Baron by the name of Muller, and Mr. Von Winning. An inter- preter was also present during the interview, which continued till eight o'clock. And the evidence reported relates chiefly to what then took place. She was told that the Baron was indebted to the plaintiff in the sum of 1.5,000 marks, and she was requested to sign the drafts to that amount, copies of which are annexed to the bill. Tt appears in the evidence that she refused, saying that it was impossible; that she had no money, and that she had parted with all her pro])erty. She was solicited again and again to sign the; drafts and was told by Mrs. Von Winning that. CHAP, v.] KAU V. CATHERINE B. VON ZEDLITZ 489 if she did not, disagreeable consequences would follow ; that, unless the drafts were signed, the marriage on tlie following day would not take place; that the police would prevent their leaving their dwelling or would stop them at the door of the church, and that the whole affair would be published in the newspapers. It also appears from the testi- mony of the plaintiff that he intended to have the Baron arrested unless Miss Kelsey paid the debt. She desired to leave the room, and was told that she could not go until the matter was arranged. Upon the suggestion being made that Mr. Lehman, a lawyer who had been em- liloyed in connection with the settlement, might be sent for, it was opposed by the plaintiff. The plaintiff could not speak English, and Miss Kelsey could not speak German, and Mrs. Von Winning, who spoke English, appears to have been the medium of communication between them, and was passing from one to the other during the interview. There was evidence that a portion of the money lent by the plaintiff to the Baron had been re- ceived by her, and it is evident that she was very desirous that Miss Kelsey should sign the drafts; and the presiding judge might well find, upon the evidence reported, that she was acting in behalf of the plain- tiff, or in collusion with him, in persuading Miss Kelsey to sign, before the magistrate, the acceptances and other documents, among them a protocol, so called. During this time Miss Kelsey was very much excited, and at the last of it was in tears, and there was evidence that she fainted. She stated in her testimony: "I think for a moment or two I must have lost con- sciousness, for the first thing I knew the Baron was holding me at an open window and somebody gave me a glass of water" ; and again, "I was so worn out and tired and overcome that just as soon as I recov- ered conscioi:sness, which I lost, Mrs. Von Winning came up to nie and said, 'Now you had better sign,' and I thought at that time that I would do almost anything she asked me, and so I consented." She then signed the acknowledgment of the indebtedness of the Baron and the agreement that she would assume and pay it, and also signed the drafts. This was near eight o'clock. While in the room she paid some money to Rau and also to Muller, and there was a violent altercation between the Baron and Muller, during which the Baron seized Muller and shook him. It appears that Miss Kelsey was of a nervous and excitable temperament, and not familiar with business or the care of property. There was conflicting evidence in regard to what took place before the notary. But we are of opinion that the presiding judge, before whom the case was heard, and who saw the principal witnesses, namely, the plaintiff and the Baron and Baroness, might well find that the accept- ance of the drafts was forced upon Miss Kelsey by threats and undue influence. The contract she entered into was without consideration, and it was purely a question of fact whether she was induced to sign it 490 RAU V. CATHERINE B. VON ZEDLITZ [part i. by threats and undue persuasions, and through fear that her marriage would be prevented. This in equity will constitute a good defense to the bill. Upon an appeal from a decree of a single justice, on a ques- tion of fact, the evidence being reported, the full court will not reverse the decision, unless it appears clearly to be erroneous. Reed v. Reed, 114 Mass. 372; Montgomery v. Pickering, 116 Mass. 227. See also Singer Manuf. Co. V. Long, 18 Ch. D. 39.5, 427. A young woman, upon the eve of her marriage and in a strange coun- try, requested and urged to assume and pay the debts of her intended husband, being led to believe if she does not comply with the solicita- tions pressed upon her that her marriage may be prevented, her intend- ed husband arrested, and the whole affair published in the newspapers, certainly is the object of undue and improper influence, and in yielding to it at last, after long resistance, and without independent advice, can- not be said to be acting as a free and voluntary agent, for the circum- stances preclude the exercise of free and deliberate judgment. The contract which she assumed was utterly without consideration; and it was said by Lord Westbury, in Williams v. Bayley, L. H., 1 R. L. 200, 218, "A contract to give security for the debt of another, which is a con- tract without consideration, is, above all things, a contract that should be based upon the free and voluntary agency of the individual who enters into it. But it is clear that the power of considering whether he ought to do it or not, whether it is prudent to do it or not, is altogether taken away from a father who is brought into the situation of either refusing and leaving his son in that perilous condition or taking on himself the amount of that civil obligation." In that case the threat was to prose- cute the son for forgery. The case of Ivempson v. Ashbee, L. R., 10 Ch-. 15, resembles the case at bar. The plaintiff, a young lady living with her step-father, at his solicitation, soon after she was of age became surety on his bond to pay a debt, payable to the defendant at the end of six years. The defendant, on the maturity of the bond, brought an action and recovered judgment against the step-father, and the plaintiff, who still lived with her step- father, was induced by him to execute a second bond as surety to pay the judgment and costs. Both bonds were prepared by the step-father's solicitor, and without independent advice. The defendant brought an action against the plaintiff on the bonds. On a bill brought by her both bonds were set aside as against her, and it was held that the second bond was connected with the first, and that, as there was no proof that she was aware of the invalidity of the first bond, the second was no con- firmation. Dent V. Bennett, 4 M. & C. 269; Lyon v. Home, L. R. 6 Eq. 655; Eadie v. Slimmon, 26 N. Y. 9; Baldwin v. Parker, 99 Mass. 79; Central Bank v. Copcbuid, IS Md. 305. The plaintiff conteiids that by her subsequent acts she confirmed the transaction. While living in Germany after her marriage, the plaintiff pressed for payinont and throafened legal proceedings, and she paid to CHAP, v.] RAU V. CATHERINE B. VON ZEDLITZ 491 him money on account of the drafts, and wrote letters to her trustee, requesting him to send her money for that purpose. But to constitute a confirmation the acts must have been done with that intention by one who was not under the influence of the previous transaction (Mont- gomery V. Pickering, IIG Mass. 227, and cases cited), and with a knowl- edge of its invalidity (Kempson v. Ashbee, uhi supra). She was ignorant of her rights at that time, and supposed she was compelled to pay by reason of the obligations she had entered into. It is also contended by the plaintiff that his forbearance to sue is a sufficient consideration for her acceptance of the drafts. But this prin- ciple of law has no application here. His forbearance to sue cannot prevent her from avoiding the contract on the ground that he exercised fraud or undue influence in obtaining it. If it were so, a party fraudu- lently or unduly persuaded to be responsible for the debt of another could never, after ascertaining his rights, rescind the contract, if the party guilty of the fraud or undue influence forbore to sue tbe principal. A party thus guilty cannot make an illegal contract binding by any act of conduct of his. If he had forborne to sue, or anything had inter- vened to his injury, after the party defrauded had ascertained the fraud, a different case would be presented. But of this there is no evidence in this case. In this connection the plaintiff further contends that his forbearance to sue is not all ; that "Miss Kelsey herself received direct and lasting benefits, a husband and a title, considerations to be enjoyed forever, and which to her were beyond the possibility of any pecuniary measure- ment." In support of this position the language of Mr. Justice Wilde, in Walker v. Sherman, 11 Met. 170, 172, is quoted, that "The slightest damage to the plaintiff or benefit to the defendant is a sufficient consid- eration to support his promise." But the concluding portion of the sen- tence, namely, "there being no fraud practiced upon him in obtaining his acceptance of the order," would seem, to cover the case at bar. The inference from the plaintiff's argument is that he would have prevented the marriage unless she had signed the acceptance, or, as stated by the counsel for the defendants, "the argument for the plaintiff is, in effect, that she cannot rescind because she is married, and the plaintiff can no longer prevent her marriage." It is sufficient to say that the fact of lier marriage cannot furnish a legal consideration for her acceptance of the drafts, if she was fraudulently or unduly influenced to accept the same. We have no doubt that where a contract is sought to be enforced in equity, undue influence niay be set up by answer as a defense, though a cross-bill would be necessary if the defendant seeks relief by the de- livery up or the concellation of the contract. It was therefore open to the defendant to set up the undue influence by answer, and, so far as this case is concerned, it was not necessary to file a cross-bill, as she does not seek the deliv^ery or the cancellation of the drafts. Andrews v. 492 EAU V. CATHERINE B. VON ZEDLITZ [part i. Gilman, 122 Mass. 471; Richards v. Todd, 127 Mass. 167; 2 Dan. Cli. Pract. 4th. ed., 1550. It is conceded that in the absence of any evidence of the law of Sax- ony, the question of duress t»r undue influence is to be determined by the law of this commonwealth. But it is argued that although this is a bill in equity, yet the rule at law is to be followed in determining the validity of the debt, and the question is whether there was duress at law, and not whether there was undue influence according to the rule in equity; although the liability of the trust fund to satisfy such debt is to be determined as in equity. The plaintiff says he was forced into equity because the property has been placed in trust, and therefore the defend- ant cannot rely on an equitable defense. But the plaintiff was not forced into equity to prove his debt; he could have established his debt at law, and then have sought in equity to charge the trust fund with its payment. Having come into a court of equity voluntarily, with his whole case, asking to be allowed to prove his debt and thereby obtain equitable relief, the defenses in equity to his demand are open to the defendant. Whenever a plaintiff seeks to enforce a contract in equity, an equitable defense may be set up, though the remedy may not be so complete as by cross-bill seeking to set the contract aside. If the plain- tiff had sued the drafts, an injunction might have issued in equity to re- strain the further prosecution of his suit, and equitable relief could have been obtained and the drafts set aside, so far as the female defendant is concerned, as in Kempson v. Ashbee, uhi supra. Nor do the rules applicable to creditors' bills govern this case. Under such a bill strictly so called an injunction may issue against all other creditors from suing at law or prosecuting suits, except under the direc- tion of the court where the bill is pending. Creditors being thus forced into a court of equity, it is said that the legal rights of every creditor and the validity of his debt must be determined in equity upon the same principles as it would be at law. 1 Story Eq. Jur. § 549. In Whittaker V. Wright, 2 Hare 310, it was remarked by Vice-Chancellor Wigram : "But nothing would be more unjust than that the court should restrain the creditor from proceeding to enforce his rights at law, except upon the principle of allowing him to bring his legal rights with him into the office of the court, which it substitutes for the proceedings at law." ^^^lether in such a case this defense of threats and undue influence could be set up we need not inquire. This is not a creditors' bill brought in behalf of all the creditors. It may be brought by a single creditor, and the other creditors cannot be compelled to come in, and have no right to come in and share with the plaintiff the benefit obtained by the suit. It is in the nature of an equitable trustee jirocess, as distinguished from a creditors' bill. Pha'nix Ins. Co. v. Abbott, 127 Mass. 558; Chapman v. Banker & Tradesman Publishing Co., 128 Mass. 478. Decree affirmed with costs. CHAP, v.] DOLLTVER v. DOLLIVEK 493 BRYANT V. PECK AND WHIPPLE COMPANY. In the Supreme Judicial Court of Massachusetts, 1891. [154 Massachusetts, 4G0.] Holmes, J. According to the allegations of the bill, the plaintiff be- came a party to a note from which he prays to be relieved, and trans- ferred his stock, in consideration that the defendant would not proseciite his son for perjury, and under a threat from it that otherwise his son would be prosecuted. The transaction was illegal ; Pub. Sts. c. 205, § 27 ; Gorham v. Keyes, 137 Mass. 583 ; and if the parties stood on an equal footing, neither of them would have a remedy against the other. At- wood V. Fisk, 101 Mass. 363. But it is well recognized that, although both parties are chargeable with knowledge that their agreement is con- trary to some rule of law, yet if one of them acts under duress, or what the law regards as undue influence on the part of the other, they do not stand on an equal footing, and the weaker one may be granted affirmative relief. Worcester v. Eaton, 11 Mass. 368, 376; Belding v. Smythe, 138 Mass. 530, 533. It is settled that such threats as are alleged to have been addressed to the plaintiff constitute duress. Harris r. Carmody, 131 Mass. 51. See Ran v. Von Zedlitz, 132 Mass. 164. And accordingly it has been decided in other jurisdictions, in cases like the present, that the plaintiff was entitled to relief in equity. Foley v. Greene, 14 R. I. 618; Schooner v. Lissauer, 107 N. Y. Ill; Williams v. Bayley, L. R. 1 H. L. 200; Davies v. London & Provincial Ins. Co., 8 Ch. D. 469, 477. See Sharon v. Gager, 46 Conn. 189; Rau v. Von Zedlitz, 132 Mass. 164, 167-169. In Atwood V. Fisk, uhi supra, cited as establishing a different con- clusion, it seems to have been found or assumed that the plaintiffs had not been subject to any undue pressure, as the decision states that there was " no such inequality in position, or abuse of advantages, as to entitle them to the aid of the court on the ground of public policy." Demurrer overruled. DOLLIVER V. DOLLIVER. In the Supreme Court of California, 1892. [94 California, 642.] Harrison, J. — Action for the rescission of a contract. The court below rendered judgment in favor of the plaintiff, and the defendant has ap- pealed from the judgment, bringing the case here upon the 'judgment roll alone. The court finds, that the parties are husband and wife, having been 494 DOLLIVER v. DOLLIVER [part i. married in 1873, and that the plaintiff, at the time of their marriage, was the owner of certain real estate as her separate property, at that time of the value of one hundred and twenty-five thousand dollars, and that after her marriage with the defendant she acquired certain other prop- erty, which was also her separate estate. On the 27th of August, 1885, the defendant abandoned the plaintiff, and thereafter ceased to live with her, and on the evening of that day, after leaving her, he caused her to be served at her residence with a summons and copy of a complaint in a suit for divorce, brought by him against her. The court finds that at that time, and for some time previously, the plaintiff was a sufferer from gen- eral nervous prostration, and that the abandonment by the defendant, and the nature of the charges in the complaint for divorce, caused her great agitation and distress of mind, and greatly aggravated her bodily infirmity ; and that while so distressed in mind and sick in body, she al- most immediately sought out the defendant and urged him to dismiss the suit and return to her; and that on the 31st of August they met by ap- pointment at the office of Mr. A. N. Drown, who was his attorney, and to whom he introduced the plaintiff, with the statement that they had come to make a settlement. At that interview certain memoranda of the settle- ment were prepared by Mr. Drown in the presence of both parties, and signed by them, and on the next day formal instruments of settlement, which in the mean time had been prepared by his attorney, were exe- cuted by them. By these instruments, the plaintiff made to the defendant her promis- sory notes, amounting to thirty thousand dollars, and secured their pay- ment by a mortgage upon certain of her real estate, and a memorandum of agreement was signed by both parties, reciting that "all of the prop- erty belonging to both of said parties has hitherto been and is now held by Mary \Y. Dolliver," and that "differences have arisen between said parties relating to such property, and the respective rights of each con- cerning the same," and that "in mutual consideration of the premises,'* it was agreed by them that the property that day conveyed by him to her should be her separate property, and that the property transferred by her to him, together with the aforesaid promissory notes and mortgage, should be his separate property. It is for the rescission of these agree- ments, and the restitution of the plaintiff to the property so conveyed, and the surrender of the notes and mortgage, that this action was brought. The court finds that the above recitals in the memorandum of agree- ment had no foundation in fact; that no property of the defendant had been held by the plaintiff, and that he had no property; that there had been, in point of fact, no differences in the sense assumed in the memor- andum; that the claim set up by the defendant, and which the settlement pur[)orted to adjust, was not a hona fide claim on his part, and that the iriemoraiidum puri)orted to give to tlu; plaintiff nothing which was not in point of law and fact already hers, and effected nothing for her pecuniary CHAP, v.] DOLLIVER v. DOLLIVER 495 advantage. The coui't also finds that the abandonment of the plaintiff "was without just cause, was made in bad faith, and the suit instituted by him, ostensibly to obtain a divorce, was brought by him merely to harass and vex the plaintiff, and as a means of coercing her into a sur- render to him of a portion of her separate estate, and for no other pur- pose"; that the matters set forth in his complaint as substantive grounds for divorce were untrue in point of fact, and known by the de- fendant at the time to be untrue, and that the alleviations inserted 1 herein as to the amounts of money which had been turned over by him to his wife were not true in point of fact, and that those amounts were grossly and purposely exaggerated for the purpose of alarming her, and influencing her to make a settlement; that the plaintiff executed the instruments in manner and form as they had been prepared by the attorney for the defendant; that she had no independent advice concern- ing them or their legal effect and operation, and did not in fact compre- hend their effect in point of law upon her property rights; that she was constrained to their execution by considerations of the immunity she hoped to obtain from the personal disgrace apprehended by her from the trial of the suit for divorce upon the charges made against her in the complaint, and that it was under the moral pressure exerted upon her by these various considerations that she acted in executing the said instruments. An action for the rescission of a contract may be maintained when- ever the consent of the party seeking to rescind was obtained through any fraud or undue influence of the other party. Civ. Code, sec. 1689. " Undue influence " is defined in the Civil Code, sec. 1575, to consist. — "1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or au- thority for the purpose of obtaining an unfair advantage over him; 2. In taking an unfair advantage of another's vpeakness of mind; or 3. In taking a grossly oppressive and unfair advantage of another's necessities or distress."' The plaintiff and defendant were husband and wife, and by virtue of that relation a personal trust and confidence had been created be- tween them, which imposed upon the defendant the obligation of exercis- ing the highest good faith towards the plaintiff in any dealings be- tween them, and precluded him from obtaining any advantage over her by means of any misrepresentation, concealment, or adverse pressure. Civ. Code, sec. 2228. This relation and the obligation arising from it were not destroyed by the mere fact that an action for divorce was pend- ing between them. They were still husband and wife, and so long as that relation existed between them, the law would not permit any inquiry into the extent of the trust and confidence which is presumed to be placed by one in the other; nor can the husband, by bringing an action for divorce against his wife, divest himself of the obligations which are imposed upon him by virtue of such relation. 496 DOLLIVEE v. DOLLIVER [part i. The suit for divorce was brought by the husband on the 27th of August, under such circumstances as naturally to surprise and distress the wife. They had been living together for many years as husband and wife, and in the exercise and enjoyment of the confidential relations in- cident thereto. On that day he dined at home with her and the family, together with an invited guest, and immediately after dinner announced to her his intention of abandoning her, and on the same evening caused her to be served with the summons and complaint in the suit for divorce. Instead of resisting the suit, or assenting to its prosecution, she ahnost immediately sought him out and urged him to dismiss the action and return to her. Although he at that time refused to do this, the parties, within four days after the commencement of the action, met by ap- pointment at the office of his attorney to make a "settlement." Instead of insisting that the plaintiff should have the benefit of some independent and disinterested advice, he refrained from calling in any adviser for her, but took upon himself the duty of formulating the instruments by which the "settlement" was to be effected, and had himself the benefit of the presence and advice of his own attorney. The intervention of Mr. Drown in the preparation of the instruments cannot be considered as any pro- tection to the plaintiff. He was the attorney of the defendant, had in- stituted the suit in his behalf, and was under his professional obliga- tion to protect the interests of his client, and would feel under no ob- ligation to protect the interest of the plaintiff, or to give to her any advice or counsel in reference thereto. The court finds : "In the progress of the settlement, particularly on August 31st, when its precise terms Avere being formulated, the defendant here had the benefit of the pres- ence and advice of his attorney, Mr. Drown, who in fact instructed him as to the advisability in his interest of a certain important detail of the settlement; the plaintiff here, the wife, in point of fact, upon her part, had no advice or assistance of any character in adjusting the terms, nor in the conduct of the negotiations which culminated in the settle- ment in question." Under these circumstances, the husband must be held to have been bound to the exercise of all those duties towards the wife wdiich spring from the existence of the relation between them, and to be subject to that familiar rule in equity, "that he who bargains in matter of advantage with a person placing confidence in him is bound to show that a rea- sonable use has been made of that confidence," and thus be precluded from gaining any advantage from the transaction between them. When, therefore, the court found that the transaction was without any pecuniary advantage to the wife; that the husband had received great pecuniary advantage therefrom; that the consideration recited in the instrument of sottlement, and upon which it purported to have been made, was untrue; that the suit i'or divorce had been brought by him as a means of coercing her into a surrender of a portion of her separate estate, and for no other purpose; that it had the effect to aggravate her CHAP. V.J DOLLIVER v. DOLLIVER 497 bodily infirmity; and that sh? was constrained to execute the instruments of settlement by reason of the moral pressure exerted upon her by the consideration of the effect upon her that would be produced by the prose- cution of the suit ; and that she had no independent advice concerning the legal effect and operation of said instruments, — its conclusion of law and judgment that the defendant should surrender to the plaintiff all the fruits of said settlement, and that the settlement should be in all re- spects rescinded, was the necessary result of such findings, and must be affirmed. 3. The objection by the appellant to that portion of the judgment re- quiring the transfer of the Hyde Street lot is without merit. The court finds that after the execution by the plaintiff to the defendant of her promissory notes aforesaid, he hypothecated them to the Security Sav- ings Bank for a loan of nine thousand dollars, and that he applied six thousand five hundred dollars of the money so received by him to the purchase of the Hyde Street lot, giving at the same time a mortgage to the vendor for the sum of six thousand dollars to secure the unpaid por- tion of the purchase price thereof. The plaintiff had the right, as against the appellant, to an absolute surrender and concellation of these notes; but inasmuch as the Security Savings Bank was a bona fide holder of a lien thereon to the extent of nine thousand dollars, she had the right, at her option, to follow the proceeds of the notes into the property into which they had been converted. The defendant thereby suffers no in- jury, as he merely surrenders to the plaintiff the property which he ob- tained by the unauthorized use of her promissory notes, and the plaintiff can become the owner of the property only by the payment of the un- paid portion of the purchase price for which the property is held in mortgage. For the purpose of sustaining the judgment of the court, we can assume that the defendant was unable or unwilling to redeem the notes from the bank, or that the plaintiff elected to take the property into which the money for whose payment they were held had been con- verted, and in the absence of any evidence upon the point, we must also assume that the purchase price of the property was its actual value. The proposition on the part of the appellant that he may be liable to a suit for the unpaid amount of the purchase price is sufficiently answered by the fact that it does not appear from the record that he gave any personal obligation therefore. If the defendant had desired to retain this prop- erty as his own, it was at least incumbent on him to offer to return to the plaintiff her promissory notes, freed from the claim of the bank. She was under no obligation to accept in lieu thereof the obligation of the defendant to return them when this lien should be discharged, or to accept the encumbrance on the property as their equivalent. 4. The provision in the judgment in reference to the lots in the Paul tract is not prejudicial to the defendant. The terms of the judgment are, that he shall execute to her " a good and sufficient deed of all the interest acquired, or claimed tp have been acquired, ... by virtue of any in- 498 BASSET v. NOSWOKTHY [part i. strument executed by the plaintiff to said defendant on the thirty-first day of August, 1885, or one the first day of September, 1885." The com- plete terms of the "settlement" between the plaintiff and defendant are not found by the court, and the allegation of the plaintiff that she signed other instruments than those set forth in the complaint is not denied. If the defendant did not acquire any interest in the Paul tract lots by virtue of any instrument executed on either of those days, he can suffer no injury by a compliance with the judgment. And as the injury to the plaintiff is found by the court to have resulted solely and directly from the wrongful acts of the defendant, it is not for him to complain that the court has required of him as complete restitution as is within his power to make, so long as he sustains no injury or diminution of his estate.^ The judgment is affirmed. Section 4. Notice. BASSET V. NOSWOKTHY. In Chancery, before Lord Keeper Nottingham, 1673. {^Reports Tempore Finch, 102.] The Plaintiff, Sir William Basset, intitled himself, as Son and Heir of Elizabeth Seymour, who was the only Daughter and Heir of Sir Joseph Killegrew, who was Brother and Heir of Sir Henry Killigrew, whose Estate the Lands in the Bill mentioned formerly were; the Defendant's Title being under a pretended Purchase (as the Plaintiff alledged) of these Lands at Drury-house, and under the Will of Sir Henry Killi- grew, the Purchase being from .Jane Davis, afterwards the Wife of Mr. Berkley, and from Henry Hill, the pretended natural Son of the said Sir Henry Killigrew, of which Will the Plaintiff alledged there was a Revocation by some subsequent Deed or Will ; and for a Discovery thereof, and what Mr. Nosworthy really paid for the Purchase, and what Deeds and Writings he had, and to set aside the Incumbrances which he had bought to protect his l^urchase, and that Mrs. Seymour might try ' TIh' opinion of the Court on a question of practice is omitted. ^ On tlie Hubject of the protection to property accorded to innocent purchasers for vahie without notice, see an article by Professor James TJarr Ames in 1 Harv. Law Rev. 1 ; Langdell's Summary of Equity Pleading, 209-227. For a collection of cases see Ames' Trusts, 286-289. CHAP, v.] BASSET V. NOSWOKTHT 499 her Title at Law upon the supposed Eevocation against the Title of the Defendant, as a purchaser luider the said Will, the now PlaiiitifTs ex- hibited this Bill: To which the Defendant pleaded a Dismission of a Bill in the Court of Exchequer signed and inrolled, which Bill was there brought for the same Matter as in this Bill, and fully examined and dismissed upon a full Hearing, but without Prejudice, and the Dismission duly signed and in- rolled; and he farther pleaded, that he was a Purchaser for a valuable Consideration, bona fide, paid without Notice of any Revocation.' The Cause being then set right before the Court upon the true Merits thereof, there were only two Points which were considerable : 1. What the Law of this Court is concerning Purchasers. 2. Whether the Defendant was a Purchaser within that Law. As to the first Point, the Purchaser, bona fide, without Notice of any Defect in his Title at the Time of the Purchase made, may lawfully buy in a Statute or Mortgage, or any other Incumbrance; and if he can de- fend himself at Law by any such Incumbrances bought in his Adversary shall never be aided in a Court of Equity by setting aside such Incum- brances; for Equity will not disarm a Purchaser, but assist him; and Precedents of this Nature are very antient and numerous, viz., where the Court hath refused to give any assistance against a Pvirchaser either to an Heir, or to a Widow, or to the Fatherless, or to Creditors, or even to one Purchaser against another. 1. And this Eule, in a Court of Equity, is agreeable to the Wisdom of the Common Law, where the Maxims which refer to Descents, Discon- tinuances, Nonclaims, and to collateral Warranties, are only the wi?e Arts and Intentions of the Law to protect the Possession, and to strengthen the Rights of Purchasers. 2. As to the second Point the Court declared, that the Defendant had sufficiently proved his Plea, and himself to be a Purchaser within the Protection of this Court, because no Fraud or Circumvention appeared; and it was evident, that the Defendant had paid several great Sums to discharge Statutes, which incumbered those Lands, over and above what was paid to Mrs. Jane Berkley for her Estate for Life, and to Henry Hill for his Reversion ; and tho' the Lands were proved to be of much greater Value at this Time, by the falling of several Lives, than what they were at the Time of the Purchase, yet that will not alter the Case in. Equity, because in Purchases the Question is not, whether the Considera- tion he adequate, hut whether 'tis valuable; for if it be such a Considera- tion as will make the Defendant a Purchaser within the Statute 21 Eliz. and bring him within the Protection of that Law, he ought not to be im- peached in Equity. And since Henry Hill had nothing to subsist on during his Minority but this Reversion, and being a Bastard could have no Kindred by the Law, and probably but few Friends, there was some Hazard of the Money, * Part of the ease \dealing with pleading and practice is omitted. 500 HAKRISON v. FORTH [part i. which was advanced during his Minority, if he died before the Fine and Recovery suffered. Therefore the Court allowed the Plea and dismissed the Bill, and sup- pressed all the Depositions taken in this Cause before April last, and all since, but only such which relate to this Plea of the Defendant. HARRISON V. FORTH. In Chancery, before Lord Keeper Somers,^ 1695. [Precedents in Chancery 51.] The Master of the Rolls was of opinion in this case, that if A. pur- chases an estate, with notice of an incumbrance, or that it is redeemable, and then sells it to B. who has no notice; who afterwards sells it to C. who had notice; that by this, the first notice to A. the first purchaser, is thereby revived, and that C. the last purchaser shall be liable to the incumbrance or redemption, as if it had never been in the hands of one who had no notice. Afterwards, on appeal to my Lord Keeper, it being urged, that in such case an innocent purchaser without notice may be forced to keep his estate, and cannot sell it, and shall be accountable for all the profits received ab initio, his Lordship held, that though A. and C. had notice, yet if B. had no notice, the plaintiff could not be relieved against the defendant C. and ordered C. to be examined on interrogatories, if he ever saw the conveyance from the plaintiff to her sisters, and then to be tried if tlie defendant C paid any, and what consideration for the said lands; and if B. had notice at the time of his purchase that it was redeemable; for if he had not, the plaintiff could not be relieved, though A. and C. had notice. * "I,earning, patience, industry, instinctive equitablene-ss of judgment, com- prehensiveness of view, subtlety of discernment, and command of apt and perspicuous language; in short, all the qualities best fitted to adorn the woolsack are ascribed to Somers by his contemporaries. Yet, partly by fault of his reporters, partly in consequence of the dearth of causes celehrcs, partly liy reason of his early surrender of the great seal, his recorded achievement is by no moans commensurate with his reputation. Of his decrees in chancery only the meagie summaries given by Vernon and Peere Williams are extant." Article on John, Lord yoniers, in Diet. Natl. Biography. CHAP, v.] LOWTHEK v. CARLTON 501 BRANDLYN v. ORD. In Chancery, before Lord Chancellor Hardwicke, 1738. [1 Atkyns 571.] It was said by Lord Chancellor in this cause, that a man who purchases for a valuable consideration, with notice of a voluntary settlement from a person who bought without notice, shall shelter him- self under the first purchaser, yet it must be the very same interest in every respect. He likewise said, he never knew a man defend himself in this court, as a purchaser for a valuable consideration under articles only; if he is injured, he must sue at law upon the covenants in the articles.^ LOWTHER V. CARLTON. In Chancery, before Lord Chakcellor Hardwicke, 1741. [2 Atkyns 242.] This is a bill brought to impeach a purchase made 32 years ago : the defendant was a purchaser with notice, from the Marquis of Wharton, who bought without notice. It is certainly the rule of this court, that a man who is a purchaser with notice himself from a person who bought without notice, may shelter himself under the first purchaser, or otherwise it would very much clog the sale of estates. If a counsel or attorney is employed to look over a title, and by some other transaction foreign to the business in hand has notice, this shall not affect the purchaser; for if this was not the rule of the court it would be of dangerous consequence, as it would be an objection against the most able counsel, because of course they would be more likely than others of less eminence to have notice, as they are engaged in a great number of affairs of this kind. ' The balance of the ease dealing with questions of practice is omitted. 502 STEHEY v. AEDEN [part i. STERRY V. ARDEN. In the Court of Chancery of New York, before Chancellor Kent, 1814. [1 Johnson's Chancery 261.] Louisa Ann, one of the plaintiffs in this case, and one of the daughters of James Arden, and Robert Sterry, her husband, filed their bill to obtain the benefit of a conveyance made to the defendants, Richard D. Arden and DeWitt Clinton, in trust for her, by her father, James Arden, and for an account. The circumstances attending the execution and delivery of this deed are the same as those stated in the preceding case, in regard to the deed of the plaintiff's sister, Eliza B. Arden; and which it is, therefore, unnecessary to repeat. The circumstances peculiar to this case, stated in the bill, were, that on the 11th of December, 1809, the plaintiffs married, and had a child born, which is still living. That the plaintiff, Robert Sterry, when the marriage took place, understood, and believed that Louisa Ann had a beneficial interest in the trust premises according to the conveyance. That James Arden fraudulently executed a deed of conveyance of the trust premises to the defendant, Philip Verplank, a relation, who, knowing the interest of the plaintiffs in the premises, fraudulently accepted such deed, and claimed to hold the premises by virtue thereof: they, James Arden and Philip Verplank, thereby intending to defraud the plaintiffs, and defeat the deed in trust for Louisa Ann, and the estate thereby created. That the pretended deed to Verplank was dated the 11th of December, 3809, and expressed to be in consideration of a large sum of money paid, by him, to James Arden ; but that, in fact, the deed was not executed on that, but on some subsequent day, and fraudulently dated anterior to its actual delivery; and that, if, in fact, it was executed on the 11th of December, 1809, it was so executed and accepted, at an hour subsequent to, and with full knowledge of the marriage of the plaintiffs; and that the consideration, mentioned in the deed to Verplank, was never truly paid, or secured by him, to James Arden, from the proper funds of Verplank. The Chancellor [Kent.] The opinion which I have already given in the other case [Souverbye v. Arden, 1 Johns. Ch. 240], would then apply to, and govern this, was it not for a new matter of defence set up by Verplank, who claims to be a subsequent hona fide purchaser. This necessarily leads me to the consideration of two very important points arising out of this case: 1. Whothor the voluntary conveyance to ihe daughter was fraudulent and void, umlcr the 3d section of the act of the 2Gth of February, 1787, CHAP, v.] STERKY V. AEDEN 503 (s. 10. c. 44., and which is the same, precisely, as the statute of 27th Eliz. c. 4.,) as against a subsequent i^urchaser for valuable consideration ; and, if so, then, 2. Whether the intervening marriage of the plaintiffs, between the settlement and the purchase, did not restore the first deed, and give it value and validity. 1. I shall consider Verplank as a purchaser for a valuable considera- tion. He gave 16,000 dollars in cash, and, though it may have been a very cheap purchase, there was not such inadequacy of price as to justify an inference of fraud. I shall, also, consider him as a purchaser without actual notice of the settlement upon the plaintiff. He declares in his answer, that he had no knowledge or notice of the conveyance of 1805, when he purchased, and there is not proof to contradict this answer. But I hold him chargeable with constructive notice, or notice in law, because he had information sufficient to put him upon inquiry. He admits that, before the execution of the deed, he had heard that the grantor had made some provision for his daughters out of property in Greenwich street ; and there is no evidence in the case, that the grantor owned any other property in that street, except the lots included in the settlement. Here, then, is the case of a fair voluntary conveyance, made by a father to his daughter, he not appearing to be indebted at the time, and a subsequent sale made by him. with intent to defeat that settlement, but made for a valuable consideration, and to a purchaser chargeable only with notice in law. The question arising on this first point is definitely settled, in England, by determinations of a recent date in the four great courts at Westminster; and it is impossible not to feel all the respect which is justly due to decisions of so much weight and authority. Evelyn v. Templar, 2 Bro. 148 ; Doe, ex dem. Ottley v. Manning, 9 East, 59 ; Doe I'. Martyn, 4 Bos. & Pull. 332; Hill v. The Bishop of Exeter, 2 Taunt. 82 ; Doe v. Hopkins, in the Excheq., cited in 9 East 70. The voluntary deed is considered fraudulent and void against the subsequent deed; and it is to be held immaterial whether the purchaser had, or had not, notice of the prior deed; and it was an old settled rule, decided in Gooch's case, (5 Co. 60.,) that notice to a purchaser, of a fraudulent deed, was of no consequence, as it was still void. It has been suggested, that this is a principle settled in England since our revolution ; but it appears to me that the late cases have declared no new doctrine, and have only followed the rule as they found it, long before settled by a series of judicial decisions of too much authority to be there shaken. In t^ie late case in East's Rep. Lord Ellenborough, in delivering the opinion of the K. B., gave a full and accurate view of most of the cases on both sides of the question, from the time of the statute of Elizabeth; and no one who examines that opinion attentively, and, especially, if he also inspects the original cases referred to, can well hesitate as to the correctness of the conclusion drawn by the cour|, that " the weight, number, and uniformity of the 504 STERRY v. ARDEN [part i. authorities, in favour of the rule as there decided, do very much pre- ponderate." It cannot be expected that I should attempt to go over in dctuil, the numerous cases which have been so ably arranged and reviewed, and so fairly stated in the opinion referred to. I shall content myself with merely alluding to them, and with the remark, that those cited in favour of the position, that the voluntary deed is only, prima facia, fraudulent as against the subsequent purchaser, are, generally, mere dicta, and not solemn adjudications upon the point. In favour of the voluntary settlement, are Sir Ralph Bovey's case, 1 Vent. 193; Jenkins v. Kemeshe, Hard. 398; 1 Lev. 150; Lavender v. Blackstone, 2 Lev. 146; Garth v. Mois, 1 Keb. 486; Anon. Sty. 446; Gilbert's Law of Ev. 201; Standon v. Charlwood, MSS. cited 9 East, 64; Lord Mansfield, in Cadogan v. Kennett, Cowp. 434., and in Doe v. Routledge, Cowp. 708. 710. In favour of the subsequent purchaser, are Woodie's case, cited in Colville V. Parker, Cro. Jac. 158; Prodgers v. Langham, 1 Sid. 133; White V. Ilussey, Pree. in Ch. 14; Tonkins v. Ennis, 1 Eq. Gas. Abr. 334, pi. 6; White v. Sansom, 3 Atk. 412; Townsend v. Windham, 2 Ves. 10; Roe v. Milton, 2 Wils. 356; Goodright v. Moses, 2 Bl. Rep. 1019; Chapman v. Emery, Cowp. 278; Lord Kenyon, in Nunn v. Wilsmore, 8 Term, 628. There are, however, some cases which are not mentioned in the opinion delivered by Lord Ellexborouoii, and which, as it seems to me, give additional weight to the opinion which has been adopted. Thus in Walker v. Burrows, 1 Atk. 93, Lord Hardwicke observes, " It has been said, all voluntary settlements are void against creditors, equally the same as they are against subsequent purchasers, under the statute of 27 Eliz. ch. 4, but this will not hold;" and he afterwards adds, " But, upon the statute of the 27 Eliz., which relates to purchasers, there, indeed, a settlement is clearly void, if voluntary, that is, not for a valuable consideration, and the subsequent purchasers shall prevail to set aside such settlement." Again, in Upton v. Basset, which was shortly after the statute, (Cro. Eliz. 445.,) there was an evident admission and understanding of all the judges, that a voluntary conveyance was void, under the 27 Eliz., against a subsequent bona fide purchaser for valuable consideration. The case of Taylor v. Stile is cited by Sugden, p. 483., as being decided in chancery, in 1763, and in which Lord NoRTHiNOTON held it to be clear, that a subsequent purchaser for valuable consideration, though with notice, should set aside; a voluntary settlement; and Mr. J. Bathurst said, ho knew that Lord IIarijvvicke had determined so in twenty instances. In Douglass v. Waad, 1 Ch. Cas. 99, the court of chancery set aside a voluntary con- veyance as fraudulent against a subsequent purchaser, and though the court are reported to have said, " that all voluntary conveyances are, prima facie, to be looked upon as fraudulent against purchasers, unless the contrary be made to appear," yet the decree was conformable to the CHAP, v.] STERRY V. ARDEN 505 principle contended for by the purchaser, for it set aside the voluntary conveyance as fraudulent, though nothinj? appeared but the want of valuable consideration to make it so. It is, also, worthy of notice, that, in the original text of the treatise of equity, published in 1737, and of which Fonblanque is the editor, (1 Fonb. 2G8.,) the same doctrine is explicitly laid down. In short, the principle set up in favour of the purchaser, has been so long and so well established, by a series of authoritative decisions, supported by the most eminent judges, that I feel bound by them, whatever doubts I might have had upon this con- struction of the statute, if I had been at liberty to follow my own reflections. When a principle has taken such deep root, and received such uniform support, it belongs to the legislature, and not to the courts of justice, to suppress or destroy it. It has been observed that the present defendant was not a purchaser with actual notice of the deed of settlement. He does not, therefore, come within the exception for which some have contended. Doubts have been frecpiently expressed, whether the better construction of the statute would not have been to support the voluntary conveyance against purchasers for a valuable consideration, with notice; (and to that opinion I strongly incline;) yet it is pretty evident, that the allusion here was only to the case of actual notice, where the purchaser was intentionally and premeditatingly defeating the fair claims and expec- tations of the prior grantee. 9 East, 71 ; 4 Bos. & Pull. 335 ; 1 Fonb. 2G9. n. g. Equity does make a distinction between purchasers with and without notice of the prior voluntary settlement made without fraud; but it is only when the former comes for the aid of the court to compel a specific performance, and it then refuses its aid, and leaves him to his remedy at law. Bennet v. Musgrove, 2 Yes. 52 ; Oxley v. Lee, 1 Atk. 625. 2. The next point is, whether the marriage of the plaintiffs, before the purchase, did not give a new character to the first deed, so as to entitle it to preference. It is admitted that the deed to Yerplank was made and executed after the marriage, and in consequence of it, and the testimony in the case is decisive, (I refer to the depositions of Mrs. Servant and Colonel Hawkins,) that the plaintiff, Robert Sterry, married with previous knowledge of this deed of settlement on his wife. Under these cir- cumstances, I consider the law to be, that the first deed became good and valuable, and ought to prevail. The marriage was a valuable considera- tion, which fixed the interest in the grantee against all the world; she is regarded from that time as a purchaser, and as much so as if she had then paid an adequate pecuniary consideration. It has been a principle of long standing, and uniformly recognised, that a deed, voluntary or fraudulent in its creation, and voidable by a purchaser, may become good by matter ex post farhn. 1 Sid. 133. 1 East, 95. It is the constant language of the books, and of the courts, that a voluntary deed is m^ade good by a subsequent marriage, and a marriage 50G STERRY v. ARDEN [part i. lias always been held to be the highest consideration in law. Co. Litt. D b. The eases do not require that the settlement should have been made with a view to any particular marriage; it is sufficient that the settlement was afterwards known to third persons, and was one probable inducement to the subsequent marriage. Indeed, in Brown v. Carter, 5 Yes. 877, 888, 889, Lord Alvanley did not think it very material to prove that the marriage was even made with notice of the voluntary settlement, as the knowledge of the circumstances of the party, and the inducement, were to be presumed. The principle is, as it is there stated, that it would be a fraud on the husband, if the probable inducement was to be afterwards withdrawn, and that it would be gross injustice to take away the benefit of the settlement from the married parties, and their issue. The case of Prodgers v. Langham, 1 Sid. 133, is a leading one on this point, and it has always been mentioned as good law. That was a case of a voluntary conveyance, in trust, for an only daughter for twenty-one years, to the intent that the profits, before marriage, should be applied to her maintenance, and, if she married with the father's consent, then in trust for her during the residue of the term. The court held, that the conveyance to the daughter was a voluntary con- veyance, and would have been void as against the defendant, a subsequent purchaser for valuable consideration, if the marriage had not intervened, yet when that took effect, it ceased to be voluntary, and became sup- ported by a valuable consideration, which was unimpeachable, inasmuch as the marriage was an advancement to the daughter, and the husband was induced (though that fact does not appear in the case) by the prospect of this provision. The case of Kirk v. Clark, Free, in Ch. 275 ; 2 Eq. Cas. Abr. 45, pi. 13, is equally in point; it was there held, by Lord Ch. CowPER, that a voluntary settlement on a son, before any treaty of marriage, or the contemplation of any, became valuable upon his mar- riage, which was made with notice of it, the settlement being regarded as a principal inducement. A similar decision was made in the case of the East India Company v. Clavell, Free, in Ch. 380, 381, and the proof here, brings this case precisely within the reach of those I have cited; for here was not only actual notice of the settlement, but induce- ment to marry in consequence of it. The conclusion from these cases, and from the principles which they lay down, appears to me to be, that the marriage of the daughter, in this case, changed the character of the previous settlement, and placed her in the light of a purchaser for a valuable consideration, and gave her preference to any subsequent purchaser. I shall, therefore, set aside the deed to Veri)la)ik, and make the same decree as in the former case. N. B. This decree was unanimously affirmed, on appeal to the court of errors, March 28th, 1815. [See 12 Johns. Rep. 536.] CHAP, v.] "WOOD V. MANN and others 507 WOOD V. MANN and others. In the United States Circuit Court, 1833. [1 Sumner 506.] Bill in Equity to set aside a certain conveyance, made by the plaintiff to one John R. Adams, (a defendant,) asserted to have been procured by fraud and imposition upon the plaintiff. The bill averred, that Elisha Fuller, one of the defendants, had notice of the alleged fraud and imposi- tion, in the following terms, namely : " That the said Fuller, then and there well hnowing all and singular the premises, and combining and confederating as aforesaid, the nominal consideration of the said deed, being stated to be forty thousand dollars; but what consideration, or whether any consideration, was paid therefor by the said Fuller, your orator knows not ; and the said Fuller, combining and confederating as aforesaid, well knowing all the premises," &c. Fuller pleaded, that he was a hona fide purchaser under Mann of parcel of the premises, without notice of the asserted fraud or imposition; that he had paid a part of the consideration money, and that the residue was secured by a mortgage. Upon motion of the plaintiff, the plea was set down for argument, as to its validity in matter as well as in form; and the questions were argued by Rand for the plaintiff, and by Washburn for the defendant, Fuller. Story, J. The first question made at the bar is, whether, if the plain- tiff asserts a legal title, the plea of a hona fide purchase for a valuable consideration, without notice, is a good bar in equity to a bill, like the present, which is for discovery and relief. Without doubt, a plea to the whole bill, which is bad in part, and good in part, may be allowed to the extent to which it is good, and overruled as to the residue. It may be good as to the discovery, and bad as to the relief. See Cooper, Eq. plead. 230; Mitf. Plead., 4th edit, by Jeremy, pp. 294, 295. Upon the question, whether a bona fide purchase for a valuable consideration, with- out notice, is a good plea in bar to a legal title asserted, as it certainly is to an equitable title, there is considerable contrariety in the authorities. Lord Nottingham is reported, in the case of Burlase v. Cooke, 2 Free- man, R. 24, to have held the plea to be a good bar. But he is said, in the subsequent case of Rogers v. Seale, 2 Freeman, R. 84, to have changed his opinion. Both these cases, however, are, as Mr. Sugden has well observed, very ill reported. Sugden on Vendors, 762, 7th edition. In Parker v. Blythmore, 2 Eq. Abridg. G. p. 79 ; S. C. Prec. Ch. 58, the Master of the Rolls held the plea good. Afterwards, in Williams v. Lambe, 3 Brown, Ch. R. 264, Lord Thurlow held the plea bad to a bill for discovery and relief. And in the later case of Jerrard v. Saunders, 2 Ves. Jr. R. 453, Lord Loughborough held the plea good, adhering to, and approving, \the doctrine of Lord Nottingham in the case of 508 WOOD V. MANN and others [part i. Basset v. Nosworthy, Finch, R. 102. The elementary writers, too, on this subject are as ill agreed as to the result of the authorities ; Mr. Sugden adopting one view and Mr. Belt and Mr. Beames another. Sugden on Vendors, 762, 763, 7th. edition; Belt's note to 3 Brown, Ch. R. 263; Beames's Plead, in Equity, 234, 245. Mr. Chancellor Kent has come to the conclusion, that the rule in England is according to the decision of Lord Thurlow. Methodist Episcopal Church v. Jaques, 1 Johns. Ch. R. 74. If it were material to decide this point in the present case, I should take more time to consider it. It appears to me, that some of the cases admit of distinctions, which may reconcile them. There may be good ground to refuse a discovery against such a purchaser, when the bill might be maintained for relief. And there may also be good ground not to interfere with such a purchaser, so far as to take from him any paramount legal title, which he has honestly obtained; and yet, when this title is not paramount to the legal title of the plaintiff, to give him full relief. The case of dower before Lord Thurlow may stand upon this distinction ; and perhaps others. But it is, in my judgment, wholly unnecessary to decide the point ; and therefore I leave it for farther consideration. See Rancliffe v. Parkyns, 6 Dow, R. 149, 230; Walwyn v. Lee, 9 Ves. 24; Strode v. Blackmore, 3 Ves. R. 211. In Payne v. Compton, 2 Younge & Coll. 457, Lord Abixger held the plea of a bona fide purchase for a valuable consideration without notice, was good in Equity as a defence against a plaintiff relying on a legal title. The groundwork of the argument here fails ; for it is not true, that the plaintiff does assert a title strictly legal in all aspects of the case. The argument insists, that the conveyance of the plaintiff to Adams was a mere nullity; not voidable, but utterly void. But, however it may be treated as between the original parties, in a loose and general sense, as a nullity, it is not so in fact, or in law. The title was voidable for the fraud, and not void. A ho7ia fide purchaser, for a valuable consideration, and without notice, under the fraudulent grantee, would hold the estate at law against the original grantor. That doctrine has been repeatedly affirmed by this Court; and particularly in the case of Bean v. Smith, 2 Mason, R. 252, 272, &c. It has more recently been fully sanctioned by the Supreme Court of Massachusetts in Somes v. Brewer, 2 Pick. R. 184. So that, according to the well-established doctrine in this Com- monwealth, the deed of the plaintiff to Adams cannot be treated as utterly void, but as voidable only. See Picket v. Salway, 2 Barn. & Aid. R. 360; Fletcher v. Peck, 6 Cranch, R. 133. Rcs(;rt, then, is now hnd to a Court of Equity, not to enforce a legal title, but to obtain a declaration, that the original deed was fraudulently ol;tairied, and of course to procure from the defendant. Fuller, a re-con- veyance, if he purchased with notice, as the bill asserts in general terms that he did. The plaintiff asks for a discovery, which itself is equitable relief, for the purpose of having a surrender of the asserted fraudulent titles of the defendants, which is also equitable relief. Wliatever, then. CHAP, v.] WOOD V. MANN and others 509 may be the ease, as to a purely legal title asserted in a Court of Equity, it does not strike me, that this can be treated as a case of that sort upon the actual structure of the bill and plea. But it is very clear, that the plea furnishes no bar to the bill. In order to make it a good bar, it is necessary, that it should aver, that the whole consideration of the purchase had -been paid before notice of the plain- tiff's title. Now, the plea admits, that part of the purchase money has been paid, and that the residue is unpaid. It is plain, then, upon the unshaken doctrine of the authorities, that the plea is bad. Lord Redes- dale has laid down this doctrine in full and exact terms in his excel- lent work on Pleadings in Equity. Speaking upon the subject of a plea of this sort by a purchaser, he says : " It (the plea) must aver the con- sideration and actual payment of it ; a consideration secured to be paid is not sufficient." Mitfords Pleadings, 4th edition, by Jeremy, p. 275; Cooper's Eq. Pleadings, 282. And he is fully borne out by authority. Hardingham v. Nicholls, 3 Atk. 304, is directly in point; and indeed the doctrine has passed into common axiom of equitable jurisprudence. Harrison v. Southcote, 1 Atk. E. 538; Story v. Lord Windsor, 2 Atk. 630; Jewett v. Palmer, 7 Johns. Ch. K. 65; Wormley v. Wormley, 8 Wheat. R. 449. Therefore I have no doubt, that the plea must be over- ruled. And the only question, then, will be, whether it should be over- ruled generally, or should be permitted to stand for an answer, with liberty to the plaintiff to except; for without such liberty, it would be establishing it as a good answer; Maitland v. W^ilson, 3 Atk. R. 813; Sellon V. Lowen, 3 P. W. R. 239, or whether the benefit thereof should be reserved to the hearing of the cause, to avail, quantum voire possit. Lord Redesdale has fullj^ stated the appropriate effect of each of these courses : " If, (says he) upon argument the benefit of a plea is saved to the hearing, it is considered, that, so far as appears to the Court, it may be a defence; but that there may be matter disclosed in the evidence, which would avoid it, supposing the matter pleaded to be strictly true; and the Court, therefore, will not preclude the question. Where a plea is ordered to stand for an answer, it is merely determined, that it contains matter, which may be a defence, or part of a defence ; but that it is not a full defence; or it has been informally offered by way of plea; or it has not been properly supported by answers, so that the truth of it is doubt- ful." Mitford's Pleadings in Eq. p. 303, 4th edition, by Jeremy. See also 1 Turner «& Ven. Pr. p. 826, 6th edition. The same doctrine was held by Mr. Chancellor Walworth in Orcutt v. Ormes, 3 Paige, R. 459. It appears to me, that the proper course in the present case is, to over- rule the plea absolutely, and to order the party to answer generally; in which case he may insist upon the same matters of defence by way of answer, and have the full benefit of them. The matter of the plea does not furnish a complete bar to the bill ; for even if the title in the defend- ant, Fuller, is unimpeachable^ because he had no notice of the fraud or im- position ; still, as the whole purchase money has not been paid, the plain- 510 WOOD V. MANN and others [part i. tiff may be entitled to relief to the extent of the unpaid purchase money. It is unnecessary now to decide, whether, if the defendant stands in the predicament of a bona fide purchaser without notice, having paid part of the purchase money, the deed to him can be set wholly aside, or set aside pro tanto; or whether the remedy of the plaintiff against him is to have the residue of the purchase money paid over to him, if, upon the full hearing of the cause, the plaintiff establishes the case, as put forth in his bill. The other parties have an interest in the decision of these points; and therefore they should be reserved to the hearing. But what is to me decisive for overruling the plea is, that it does not expressly and in terms deny, by proper averments, notice of the fraud and imposition, which are charged in the bill, and of which, (though in a very loose and inartificial manner,) the defendant. Fuller, is charged by the bill as having notice. It is clear, by the authorities, that it is not sufBcient to deny generally notice of such facts, so charged, in the answer in support of the plea; but the answer must deny them specially and par- ticularly, as charged in the bill. This was the decision of Lord Hard- wiCKE in Eedford v. Wilson, 3 Atk. R. 815, and it has been constantly adhered to, as undoubted law. See Mitford on Plead., p. 276, 4th edi- tion, by Jeremy; Cooper's Eq. Plead., p. 283, 238, 239; Beames's Plead, in Eq. p. 247; Jerrard v. Saunders, 2 Ves. Jr. R. 187; S. C. 4 Brown, Ch. R. 322; Senhouse v. Earl, 2 Ves. R. 450; Willis's Plead, in Eq. p. 568. note; Sugden on Vendors, p. 761, 7th edition; Rancliffe v. Parkyns, 6 Dow, R. 230.' Plea overruled.^ ^ The balance of the case dealing with the question of pleading is omitted. "''Tlie defendant, May, avers, that the deed to him was executed and delivered on the 1st of March, 1819; and the subpoena and injunction in the case, were served on the 9th of March, 1819. Part of the consideration for the purchase by May, is averred to have been paid at the time of the execu- tion and delivery of the deed, by the transfer and delivery to Palmer of several promissory notes, given by William Eaton to May, and which are alleged to have been good and valid. But another part of the consideration, viz., 100 dollars, was not paid until the 20th of March, 1819; and 527 dollars and 72 cents, not until the autumn of 1820. These payments were made, not only after the pendancy of the suit, which was notice in law^, but after act\ial notice of the claim of the plaintiffs must be taken to have been received. They were, therefore, payments ^nadc by the defendant, M., in his own wrong, and his character as a purchaser will not protect him. A plea of a purchase for a valuable consideration, without notice, must be with the money actually paid : or else, according to Lord Hahowickk you are not hurt. The averment must be, nf)t only that the purcliaser had not notice, at or before the time of the execution of the deeds, but that the pinvhase money was paid before notice. There must not only be a denial of notice before the purchase, but a denial of notice before the payment of the money. Harrison v. Southcote 1 Atk. 538. Story v. Lord Windsor, 2 Atk. G30. Even if the purcliase- moncy be secured to be paid, yet if it be not in fact paid, before notice, the CHAP, v.] PHILLIPS V. PHILLIPS 511 PHILLIPS V. PHILLIPS. In Chancery, before Lord Chancellor Westbury/ 1862. [4 De Gex, Fisher & Jones 208.] The Lord Chancellor [Westbury.] — When I reserved my judgment at the conclusion of the argument in this case, it was rather out of respect to that argument than from a feeling of any difficulty with regard to the question that had been so strenuously contested before me. The case is a very simple one. The plaintiff claims as the grantee of an annuity granted by a deed dated in the month of February, 1820, to issue out of certain lands in the County of Monmouth, secured by powers of distress and entry. The annuity or rent-charge was not to arise until the death of one Rebecca Phillips, who died in the month of December, 1839, and the first payment of the annuity became due on the 8th of March, 1840. The case was argued on both sides on the admitted basis that the legal estate was outstanding in certain incumbrancers, and is still outstanding. Subject to the annuity the grantor was entitled in fee-simple in equity. In February, 1821, the grantor intermarried with one Mary Phillips. On the occasion of that marriage, a settlement, dated in February, 1821, was executed, and under this deed the defendant's claim; and claim, therefore, as purchasers for a valuable consideration. No pay- ment has ever been made in respect of the annuity. plea of a purchase for valuable consideration, will be overrruled. Hardingham V. Nieholls, 3 Atk. 304." Per Chancellor Kext in Jewett v. Pelmer, 1S23, 7 Johns. 65, 67. * "The judgments which he has left are in many ways unique. Our law reports contain no more perfect examples of precise and lucid statement, of concise reasoning, or of polished English ; and no judge has ever striven more persistently than did Lord Westbury to bring every qiiestion to the test of principle, and to restrain within due limits what seemed to him the excessive authority of precedents. His habit was to brush aside, or pass by unnoticed, the crowd of cases which had accumulated during the argument, to treat with scant respect judicial opinions which might stand in his way, and to come to his decision by the light of 'a few elementary rules of law' — a phrase which he had a malicious fondness for using wlien about to reverse Lord Campbell. Following this method, indeed, he fre- quently decided a great deal more than the facts of the case required, and the authority of his judgments has been thereby much weakened; but where he had a comparatively clear field, as in the subject of domicile, he suc- ceeded in building up a gi'eat portion of the existing law (see an estimate of his judgments in Campbell Smith's Writings by the Way, p. 397). With one exception, however, the cases in which he took part have only a legal interest." Article on Bethell, Richard, first Lord Westbury, in Diet. Xatl. Biogi-aphy. 512 PHILLIPS V. PHILLIPS [part i. The bill was filed within twenty years, and seeks the ordinary relief applicable to the case. The defendants by their answer insist that the deed was voluntary, and therefore void under the statute of Elizabeth as against them in their character of purchasers for valuable considera- tion, and they also insist upon the Statute of Limitations. But in the answer the defence of purchase for valuable consideration without notice is not attempted to be raised. At the hearing, an affidavit of Mary Phillips and another person was produced denying the fact of notice of the annuity at the time of the grant and at the time of the creation of the marriage settlement, and the contention at the bar was that the defence of purchase for valuable consideration without notice was available for the defendants, imder these circumstances, and ought to be allowed as a bar to the claim by the Court. The Vice-Chancellor in his judgment refused to admit the defence of the purchase for valuable consideration without notice, and I entirely agree with him in the conclusion that such a de- fence requires to be pleaded by the answer, more especially where an answer has been put in. But I do not mean to rest my decision upon that particular ground because I have permitted the argument to proceed with reference to the general proposition, which was maintained before me with great energy and learning, viz., that the doctrine of a Court of Equity was this, that it would give no relief whatever to any claimant against a pur- chaser for valuable consideration without notice. It was urged upon me that authority to this effect was to be found in some recent decisions of this Coiirt, and particularly in the case decided at the Rolls of The Attorney-General v. Wilkins, 17 Beav. 285, I undoubtedly was struck with the novelty and extent of the doctrine that was thus advanced, and in order to deal with the argument it be- comes necessary to revert to elementary principles. I take it to be a clear proposition that every conveyance of an equitable interest is an innocent conveyance ; that is to say, the grant of a person entitled merely in equity passes only that which he is justly entitled to, and no more. If, therefore, a person seised of an equitable estate (the legal estate being outstanding), makes an assurance by way of mortgage or grants an annuity, and afterwards conveys the whole estate to a purchaser, he can grant to the purchaser that which he has, viz., the estate subject to the mortgage or annuity, and no more. The subsequent grantee takes only that which is left in the grantor. Hence grantees and incumbrancers claiming in equity take and are ranked according to the dates of their securities; and the maxim applies, " Qui prior est tempore potior est jure." The first grantee is potior — that is, potentior. He has a better and superior — because a prior — equity. The first grantee has a right to be paid first, and it is quite immaterial whether the subsequent incum- brancers at the time when they took their securities and paid their money had notice of the first incumbrance or not. These elementary rules are CHAP, v.] PHILLIPS V. PHILLIPS 513 recognized in the case of Brace v. Duchess of Marlborough, 2 P. Wms. 49J, and they are further illustrated by the familiar doctrine of the Court as to tacking securities. It is well known that if there are three incum- brancers, and the third incumbrancer, at the time of his incumbrance and payment of his money, had no notice of the second incumbrance, then, if the first mortgagee or incumbrancer has the legal estate, and the third pays him off, and takes an assignment of his securities and a con- veyance of the legal estate, he is entitled to tack his third mortgage to the first mortgage which he has acquired, and to exclude the intermediate incumbrancer. But this doctrine is limited to the case where the first mortgagee has the legal title; for if the first mortgagee has not the legal title, the third does not by the transfer obtain the legal title, and the third mortgagee by payment off of the first acquires no priority over the second. Now the defence of a purchaser for valuable consideration is the creature of a Court of Equity, and it can never be used in a manner at variance with the elementary rules which have already been stated. It seems at first to have been used as a shield against the claim in equity of persons having a legal title. Bassett v. Nosworthy, Finch, 102, S. C. Bassett v. Nosworthy, 2 White & T. L. C. 1, is if not the earliest, the best early reported case on the subject. There the plaintiff claimed under a legal title, and this circumstance, together with the maxim which I have referred to, probably gave rise to the notion that this defence was good only against the legal title. But there appear to be three cases in which the use of this defence is most familiar: — First, where an application is made to an auxiliary jurisdiction of the Court by the possessor of a legal title, as by an heir-at-law (which was the case in Bassett v. Nosworthy, Finch, 102; S. C, 2 White & T. L. C. 1,) or by a tenant for life for the delivery of title-deeds (which was the case of Wallwyn v. Lee, 9 Ves. 24,) and the defendant pleads that he is a l}ona fide purchaser for valuable consideration without notice. In such a case the defence is good, and the reason given is that as against a purchaser for valuable consideration without notice the Court gives no assistance; that is, no assistance to the legal title. But this rule does not apply where the Court exercises a legal jurisdiction concurrently with Courts of Law. Thus it was decided by Lord Titurlow, in Williams v. Lambe, 3 B. C. C. 264, that the defence could not be pleaded to a bill for dower; and by Sir. J. Leach, in Collins v. Archer, 1 R. & M. 284, that it was no answer to a bill for fines. In those cases the Court of Equity was not a?.ked to give the plaintiff any equitable as distinguished from legal relief. The second class of cases is the ordinary one of several purchasers or incumbrancers each claiming in equity, and one who is later and last in time succeeds in obtaining an outstanding legal estate not held upon existing trusts or a judgment, or any other legal advantage the possession of which may be a protection to himself or an embarrassment to otheT claimants. He will not be deprived of this advantage by a Court of 514 PHILLIPS V. PHILLIPS [part i. Equity. To a bill filed against him for this purpose by a prior purchaser or incumbrancer, the defendant may maintain the plea of purchase for valuable consideration without notice; for the principle is, that a Court of Equity will not disarm a purchaser, that is, will not take from him the shield of any legal advantage. This is the common doctrine of the tahula in naufragio. Thirdly, where there are circumstances that give rise to an equity as. distinguished from an equitable estate,— as, for example, an equity ta set aside a deed for fraud, or to correct it for mistake, — and the pur- chaser under the instrument maintains the plea of purchase for valuable consideration without notice, the Court will not interfere. Now there are three cases in which the defence in question is most commonly found. None of them involve the case that is now before me. It was indeed said at the bar that the defendants, being in possession, had a legal advantage in respect of the possession, of which they ought not to be deprived. But that is to confound the subject of adjudication with the means of determining it. The possession is the thing which ia the subject of controversy, and is to be awarded by the Court to one or to the other. But the subject of controversy, and the means of deter- mining the right to that subject, are perfectly different. The argument, in fact, amoimts to this : " T ought not to be deprived of possession, be- cause I have possession." The purchaser will not be deprived of any- thing that gives him a legal right to the possession, but the possession itself must not be confounded with the right to it. The case therefore that I have to decide is, the ordinary case of a person claiming under an innocent equitable conveyance that interest which existed in the grantor at the time when that conveyance was made. But, as i have already said, that interest was diminished by the estate that had been previously granted to the annuitant, and as there was no ground tor pretending that the deed creating the annuity was a voluntary deed, so there is no ground whatever for contending that the estate of the person taking under the subsequent marriage settlement is not to be treated by this Court, being an equitable estate, as subject to the antecedent annuity, just as effectually as if the annuity itself had been noticed and excepted out of the operation of the subsequent instru- ment. I have no difficulty, therefore, in holding that the plea of purchase for valuable consideration is upon principle not at all applicable to the case before me, even if I could take notice of it as having been rightly and regularly raised. We next come to examine the authorities upon which the defence re- lies. Now, undoubtedly, 1 cannot assent to some observations which I find attributed to the Master of the Rolls in the report of the case of The Attorney-General v. Wilkins, 17 Beav. 285, but to the decision of that case, as explained by his Honor in the subsequent case of Colyer v. Finch, 19 Beav. 500, I sec no reasonable objection, and the principles that CHAP, v.] EYRE V. BURMESTER akd others 515 I have here been referring to are fully explained and acted on by the Master of the Rolls in the case of Colyer v. Finch, 19 Beav. 500. It is impossible, therefore, to suppose that he intended to lay down any- thing in the case of The Attorney-General v. Wilkins, 17 Beav. 285, which is at variance with the ordinary rules of the Court as I have already ex- plained them, or which could give countenance to the argument that has been raised before me at the bar. I have consequently no difficulty in holding that the decree of his Honor the Vice-Chancellor is right upon the grounds on which he placed it in the Court below, and that also it would have been right if he had considered the grounds wdiich have been urged before me in support of this petition of rehearing. I therefore affirm the decree and dismiss the petition of rehearing; but inasmuch as the plaintiff sues in forma pau- peris, of course it must be dismissed without costs. EYRE V. BURMESTER and others. In the House of Lords, 1862. [10 Clark's House of Lords 90.] The Lord Chancellor [Westbury] (20 May). — My Lords, the facts material for the decision of this appeal are few, and may be shortly stated. In October 1854 the late Mr. John Sadlier made a mortgage to the Appellant, Mr. Eyre, of certain estates in Ireland, to secure the pay- ment by Sadlier to Eyre of considerable sums of money. Afterwards, and in September 1855, John Sadlier being very largely indebted to the London and County Joint Stock Bank, conveyed these estates and other large estates in Ireland to the Respondents, who represent the bank, to secure such debt and farther advances then made by the bank to Sadlier. No mention was made by Sadlier to the Respondents of the fact of the mortgage to Eyre; but the estates in question were conveyed by Sadlier to them as free from any incumbrance. Before this mortgage to the bank was completed by registration of the deeds in Ireland, the fact of Eyre's mortgage was discovered by the agents of the Respondents, who therefore refused to allow the arrangement between Sadlier and them- selves to remain unless he obtained a release from Eyre of the estates in question. This Sadlier engaged to do; and he prevailed upon Eyre to execute a deed of reconveyance to Sadlier himself of these estates, in consideration of Eyre's receiving from Sadlier other securities of equal or greater value. The substituted securities consisted chiefly of a large number of shares in the Royal Swedish Railway, and of a promissory note for £12,000, expressed to be made and signed by Mr. Dargon. But 516 EYEE V. BURMESTER and others [part i. the shares were fictitious, having been fabricated by John Sadlier for the purpose, and the promissory note was a forgery. An actual fraud of a gross and criminal character was therefore committed by Sadlier upon Eyre; and by means of that fraud the release of Eyre's mortgage was obtained. The release was obtained in a deed dated the 5th, but executed on the 13th of October 1S55. By it Mr. Eyre reconveyed, granted, released, and confirmed unto John Sadlier the estates comprised in the mortgage deed of October 1854. No consideration for this reconveyance is expressed in the deed itself, but the real agreement between the parties is contained in a contemporaneous agreement of the 6th of October 1855. After the execution of this deed of reconveyance to John Sadlier no farther conveyance was made by Sadlier to the Respondents. They were assured of the fact of the reconveyance, and the mortgage was either completed or allowed to continue. The estate so reconveyed by Eyre remained in John Sadlier until he committed suicide in the month of February 1856. On that event, the fraud of Sadlier was discovered. These estates have been since sold by an order of the Incumbered Estates Court in Ireland. With respect to the proceeds of that sale, a contest has arisen between Eyre and the London and County Bank ; Eyre claims the benefit of his original mortgage, and insists that the reconvey- ance is void for fraud. The bank directors claim the benefit of the re- conveyance as purchasers for valuable consideration, without notice of the fraud committed by Sadlier on Eyre, and on that ground the Court below has given judgment in their favour. A purchaser for valuable consideration without notice, will not be de- prived by a Court of Equity of any advantage at law which he has fairly obtained for his protection. But in the present case the estate recon- veyed by Eyre, remained in Sadlier, and was never conveyed by Sadlier to the bank. In answer to this objection, the Respondents insist on the estoppel created by the previous conveyance. This answer would be good as against Sadlier and all claiming under him. The estoppel created by the antecedent contract and conveyance by Sadlier would bind parties and privies, that is, Sadlier and those claiming under him. But the claim of Eyre is against Sadlier by paramount right, to recover the estate of which Eyre had been deprived by fraud, and Sadlier acquired no interest to feed his prior contract by virtue of that fraudulent trans- action. It is urged by the Respondents that the reconveyance when made by Eyre, enabled Sadlier to obtain money from the bank, and that the mortgage was completed on the faith of the reconveyance. The evidence does not appear to me to prove either of these positions. But granting that it does, the reconveyance was to Sadlier and was obtained by him by fraud and covin. There was no contract or direct communication be- tween the Rcgpoinlonts and Eyre, who acted with perfect l>ona fides. The Respondents left Snillicr in ()])tain the reconveyance, and they can claim CHAP, v.] CAVE V. CAVE 517 the benefit of it only under Sadlier, whose act they must take as it is. If (which is not proved) they had advanced money to Sadlier on the faith of the release and their actual possession of it, but without taking a con- veyance, they might have had a lien on the deed itself; but their interest in the estate being equitable only, would still, in my opinion, have been subject to the superior equity of Eyre. Whilst the estate remained in Sadlier, so long- was it liable to be pursued and recovered by Eyre. But there is no sufficient proof of any such advance by the bank; and the only foundation of the bank's claim, is the mortgage by Sadlier prior to the deed of reconveyance. That mortgage and contract would bind any interest subsequently acquired by Sadlier. But under the reconveyance he obtained none; for, as between Sadlier and Eyre, the latter was still the owner, and might at any time during the life of Sadlier, by bill in equity, have set aside the release, and obtained a reconveyance of the estate, and an interim injunction to restrain any alienation of it by Sad- lier. This equitable title still remains unimpaired, and ought to be pre- ferred to any claim by the bank. I therefore advise your Lordships that the orders of the Court below be reversed, and that it be declared that the claim of the Appellant to priority in respect of his mortgage, ought to have been allowed ; and that the case be remitted, with that declaration, to the Landed Estates Court. If the Appellant has obtained any additional security under the agree- ment of the 6th October 1855, not comprised in his original mortgage, that must be given up or accounted for to the bank.* CAVE V. CAVE. In the Chancery Division, 1880. [Law Reports, 15 Chancery Division 639.] The plaintiffs were cestuis que trusient under the settlement executed on the marriage of Mr. and Mrs. Frederick Cave. The defendant, Charles Cave, was the sole trustee. Part of the trust funds which came into his hands, he invested in certain freeholds, improperly acting in the transaction both as trustee and as solicitor for himself and Frederick Cave, in whose name the conveyance was made though the deeds were held by Charles. Later other lands were purchased under similar illegal circumstances. After these purchases, the defendant Chaplin, Charles Cave, acting as his solicitor, took a mortgage from Frederick on this land, and the question arose whether or not the knowledge of his solicitor, Charles Cave, was constructive notice to him. Subsequently, the other *The concurring opinions of Lords Cranworth, Chelmsford and Kings- down are omitted, v 618 CAVE V. CAVE [part i. defendants took mortgages on the same property, without notice of the first mortgage. In April, 1879, Frederick Cave became a bankrupt, and the Plaintiffs claimed to prove against his estate for these breaches of trust, and they also claimed priority over all the liens claimed on the land by the several Defendants, on the ground that when they took their charges they had constructive notice of the breach of trust. The Defendants denied that they had notice, and relied especially on the fraud of Charles Cave as a circumstance raising a presumption that he would not have communicated the circumstances of his fraud to the mortgagees.' Fry, J., stated the facts, and continued : — ^ Between the Plaintiff and Chaplin the course of argument has been this : It has been proved that the same solicitor, Mr. Charles Cave, who was also surviving trustee, acted in the matter of Chaplin's mortgage both for Chaplin and for the mortgagor, Frederick Cave. The Plaintiffs say, " You employed the same solicitor as the mortgagor, and you therefore had knowledge of the circumstances affecting Frederick Cave's title against us." To that Chaplin replies that Charles Cave was a party to a fraud, and that the circumstances are such as to render it impossible to conceive that the facts which were known to Charles Cave were communicated by him to Chaplin. The question I have to determine is whether the Defendant Chaplin is right or wrong in that contention. The doctrine applicable to the question has been commonly called that of constructive notice. Lord Cheljisford, in the case of Espin v. Pemberton, 3 De G. & J. 547, considered that to be an inaccurate descrip- tion, and thought that the expression " imputed notice " was the correct one. It is not very material to consider which of the two terms is the more accurate, because there is undoubtedly an exception to the con- struction or imputation of notice from the agent to the principal, that exception arising in the case of such conduct by the agent as raises a con- clusive presumption that he would not communicate the fact in contro- versy. This exception has been put in two ways. In the very well- known case of Rolland v. Hart, Law Eep. 6 Ch. 678, Lord Hatiierley put it substantially in this way, that you must look at the circumstances of the case, and inquire whether the Court can see that the solicitor intended a fraud, which would require the suppression of the knowledge of the incumbrance from the person upon whom he was committing the fraud. In Thompson v. Cartwright, 33 Beav. 178, the late Master of the Rolls put it rather differently, and it would appear that in his view you must inquire whether there are such circumstances in the case, independently of the fact under inquiry, as to raise an inevitable con- clusion that the notice had not been communicated. In the one view *The statement of facts lias been ahiidyed. ''The ()j)eiiiii;,' sciilciici's of tlic ni)iiii()n are omitted. CHAP, v.] CAVE V. CAVE 519 notice is not imputed, because the circumstances are such as not to raise the conclusion of law, which does ordinarily arise from the mere existence of notice to the agent; in the other view — that of Lord Chelmsford and Lord Hatiierly — the act done by the agent is such as cannot be said to be done by him in his character of agent, but is done by him in the character of a party to an independent fraud on his princi- pal, and that is not to be imputed to the principal as an act done by his agent. Those being the principles to the decision of this case, I must ask myself what are the circumstances.' The conclusion I arrive at is, that Chaplin has sustained the burden cast upon him of proving that the circumstances are such as repel the construction or imputation to the principal of notice to the agent. Therefore I hold that Mr. Chaplin's mortgage has a priority over the Plaintiifs'. The next question arises between the Plaintiffs and White, and also be- tween all the other incumbrancers upon the fund. That question is of this nature : all these incumbrancers allege that they are purchasers for value without notice, and they plead that, being purchasers for value without notice, they have a sufficient and conclusive defence. That defence, as we all know, has been the subject of a great deal of de- cision, and it is by no means easy to harmonise the authorities and the opinions expressed upon the subject. Criticisms upon old cases lie many strata deep, and eminent Lord Chancellors have expressed diamet- rically opposite conclusions upon the same question. The case of Phillips V. Phillips, 4 D. F. & J. 208, is the one which has been principally urged before me, and that, as being the decision of a Lord Chancellor, is binding upon me, notwithstanding the subsequent comments upon it of Lord St. Leonards in his writings. That case seems to me to have laid down this principle, that, as between equitable interests, the defence will not prevail where the circumstances are such as to require that this Court should determine the priorities between them. The classes of cases to Avhich the defence will apply are other than that." Now the question I have to determine is this, is the right of the parties to follow this money into the land an equitable estate or interest, or is it an equity as distinguished from an equitable estate? The decision of Lord Eldon many years ago appears to me to be perfectly conclusive upon the law. I refer to the case of Lewis v. Madocks, 17 Ves. 48, 57, where on further consideration directions had been given for an inquiry as to certain trust moneys which had gone into land, the wife claiming an interest in the land as against the heir; and Lord Eldon said this : "The claim of the wife is put in this way, that personal property bomid by the trust or obligation, whatever it is called, of this bond is traced into the purchase of a real estate, which estate must ' The discussion of the circumstances is omitted. - A part of the opi«ion, quoting from Lord Westbury, has been omitted. 620 MUERAY & WINTER v. BALLOU & HUNT [part i. therefore be hers; but I do not know any case in its circumstances sufficiently like this to authorize me to hold that doctrine. I am pre- pared to say that the personal estate bound by this obligation, and which has been laid out in this real estate, is personal property that may be demanded out of the real estate that the estate is chargeable with it; but it was not so purchased with it, that the estate should be decreed to belong not to the heir but to the wife." In other words, his Lordship held that the estate descended to the heir subject to the charge. That charge appears to me to be a charge in equity, or, in other words, an equitable estate or interest. Very similar was the question which Vice- Chancellor Kindersley had to determine in the case of Rice v. Rice, 2 Drew, 73, He had there to adjudicate between two equities, one arising from the right of an unpaid purchaser to come upon the land, and the other arising by contract creating an equitable mortgage. It is a very leading and instructive case, in which the Vice- Chancellor considered very fully the application of the maxim, "Qui prior est tempore potior est jure," and laid it down thus: "To lay down the rule with perfect accuracy, I think it should be stated in some such form as this. As between persons having only equitable interests, if their equities are in all other respects equal, priority of time gives the better equity, or, ' Qui prior est tempore potior est jure.' "^ In my judgment, the right of a vendor for the unpaid purchase-money is an equitable lien, and the right of the cestui que trust, whose trust money has been invested in the lands, is also an equitable lien. I do not think I can really distinguish this equity from such an equitable lien as the Vice- Chancellor held to be in that case an equitable estate or in- terest of the same description as the equity of an equitable mortgagee. Therefore I shall conclude that, within the case of Phillips v. Phillips, 4 D. F. & J. 208, the interest of the Plaintiff in this case is an equitable interest, and not merely an equity like the equity to set aside a deed, and therefore it must take its priority according to the priority of date. MURRAY AND WINTER v. BALLOU and HUNT. In the Court of Chancery of New York, before Chancellor Kent, 1815. [1 Johnson's Chancery 5G6.] The Chancellor [Kent]. The purchase, by Ballou, of Winter was made in August, 1810. The lot purchased was held, at the time, by Winter, in trust, for Temperance Green ; and a suit was then, and for a year preceding had been, pending in this court by Mrs. Green 'Justice Fry lioio made a further quotation from Rice v. Rice, which is j)rintf'(l in full, supra. CHAP, v.] MirREAY & WINTEE v. BALLOU & HUNT 521 against Winter, charfiing him with a breach of trust, and praying that his authority as trustee, might cease; and an injunction had been issued and served, enjoining him from any sale, disposition, or use of any of the lands or securities held by him in trust. The plaintiff, Murray, was, afterwards, appointed receiver, with authority to sue; and upon a refer- ence and report, which took place in the progress of the suit, Winter was found in arrcar to the amount of 20,510 dollars; and the amount of the above sale to Ballou, as being invalid and not binding on the cestui que trust, was not allowed as a charge to Winter. By the final decree. Win- ter was ordered to convey and surrender to Mary Green and Henry Green, the person for that purpose appointed by Mrs. Green, all the property and interest whatever held by him in trust. The suit so commenced against Winter, having been in a course of continued and diligent prosecution, and having been finally conducted to a decree by which the charges in the bill were established, a question arises, and has been discussed in this case, whether the purchase by Bal- lou, of part of the trust property, pendente lite, ie binding on the cestui/ que trust? Ballou has, in his answer, denied any knowledge of the suit at the time of his purchase. There is no proof to contradict the answer, and it is to be taken for true. But though he had no knowledge of the suit, it is not pretended that he was ignorant of the existence of the trust ; and it is to be presumed, from his silence, that when he purchased from Winter, he knew that Winter held and sold the land, not in his own right, but as trustee. The bill charges, that it was generally known, at the time of the sale, that W^inter's authority was questioned. The answer goes no further than to deny any knowledge of the chancery suit, or of the in- junction, or of any suspension or defect of power in Winter to sell. The answer of Hunt is to the same limited extent ; and the probability is, that it was a matter of public notoriety at the time, that Winter held the large real estate in his possession as a trustee. It has been said by the counsel for the plaintiffs, that Ballou was chargeable with notice of the trust, by means of the registry of the deed from Heatley to Mrs. Green, which recited the declaration of trust exe- cuted by Winter. This deed, containing this recital, was registered on the 9th of April, 1810, but I cannot perceive any justice in obliging Bal- lou to take notice of the contents of that deed. By what clue was he to be directed to look into the deed froin Heatley to Mrs. Green? He was dealing with Winter; and supposing Winter's trust to be, otherwise, totally unknown to him, he might as well be required to examine the contents of every deed on record. If there had been any deed on record to which Winter was a party, he would have had a specific object and guide for inquiry; cceca regens filo vestigia. I have, therefore, not thought it reasonable to charge Ballou with a knowledge of the existing trust, by reason of the registry of Heatley's deed, but rather to infer that knowledge from what is charged in the bill, and from the silence 522 MUKRAY & WINTER v. BALLOU & HUNT [part i. and the strong- implied admission in the answer. The inference from the answer is decisive. If a party means to defend himself, on the ground that he was a bona fide purchaser for a valuable consideration, without notice of a trust, he must deny the fact of notice, and of every circumstance from which it can be inferred. Bodmin v. Vandenbendy, 1 Vern. 179 ; Anon. 2 Vent. 361 ; 3 P. Wms. 244. n ; 2 Vesey, jun. 458 ; 9 Vesey, jun. 32. And if notice of the trust existed when the purchase was made, then the general rule is, that the purchaser becomes himself the trustee, notwithstanding any consideration paid; Saunders v. De- liew, 2 Vern. 271 ; 2 Fonb. 152, 153 ; and, though he may not, perhaps, be bound, in most cases, if the sale is fair, to look to the application of the moneys, yet, if the trust be suspended by process of the court, and the sale be made, as it was here, in contempt of that process, the pur- chaser, with notice, ought not to be allowed to defeat it. The question of notice of the trust is also material, inasmuch as the purchaser's knowledge of it goes to lessen or destroy the hardship, if any there should be, in the application of the maxim, caveat emptor. If every man pur- chases at his peril, and is bound to look to the title and the competency of the seller, the duty is the stronger, if he knowingly purchases of one acting as agent or trustee for others, for then he is bound to look into the validity and the continuance of the authority, and to call for an exi)lanation of the nature and existing circumstances of the trust. But it will not be necessary to rest the cause on this ground. The other point, which has been pressed for consideration, appears to be alto- gether conclusive. Admitting that Ballou had no knowledge, in fact, of the suit of Mrs. Green against Winter, when he made the purchase, he is, nevertheless, chargeable with legal or constructive notice, so as to render his purchase subject to the event of that suit. The established rule is, that a lis pendens, duly prosecuted, and not collusive, is notice to a pur- chaser so as to affect and bind his interest by the decree; and the lis pendens begins from the service of the subpoena after the bill is filed. The counsel for the defendants have made loud complaints of the in- justice of this rule, but the complaint was not properly addressed to me, for if it is a well-settled rule, I am bound to apply it, and it is not in my power to dispense with it. I have no doubt the rule will sometimes operate with hardship upon a purchaser without actual notice; but this seems to be one of the cases in which private mischief must yield to general convenience; and, most probably, the necessity of such a hard application of the rule will not arise in one out of a thousand instances. On the other hand, we may bo assured the rule would not have existed, and have been supported for centuries, if it had not been founded in great public utility. Without it, as has been observed in some of the cases, a man, upon the service of a subprena, might alienate his lands, and prevent the justice of the court. Its decrees might be wholly evaded. In this very case, the trustee had been charged with a gross breach of CHAP, v.] MUREAY & WINTER v. BALLOU & HUNT 523 his trust, and had been enjoined by the process of the court, six months before the sale in question, from any further sales. If his subsequent sales are to be held valid, what temptation is held out to waste the trust property, and destroy all the hopes and interest of the cestuy que trust? A suit in chancery is, in such cases, necessarily tedious and expensive, and years may elapse, as in this case, before the suit can be brought to a final conclusion. If the property is to remain all this time subject to his disposition, in spite of the efforts of the court to prevent it, the rights of that helpless portion of the community, whose property is most fre- quently held in trust, will be put in extreme jeopardy. To bring home to every purchaser the charge of actual notice of the suit, must, from the very nature of the case, be in a great degree impracticable. The only safe and efficient means of preventing such fraud and injustice, is to charge the purchaser with dealing with the trustee at his peril. The policy of the law does, in general, cast that peril upon the purchaser. Caveat emptor, is the settled maxim of the common law. It is his busi- ness to inquire and to look to the person with whom he deals. If he knows him to be a trustee, then let him inquire of the cestuy que trust, or let him ask at the register's office, whether there be any suit pending Against such trustee. He can always be safe if he uses due diligence; but the other party has no means of safety beyond his application to the court. Whatever may be thought of the rule, it appears to me to be less severe than that acknowledged rule of the common law, on which our courts have repeatedly acted, that a conveyance of land, without any warranty or covenant of title, will not enable the purchaser to resort back to the seller, even if the title should fail. Frost v. Raymond, 2 Caines' Rep. 188; and if he has covenants to secure his title, he can seek for no more than the consideration which he has paid, without any allowance for the rise in value of the land, or the value of the improve- ments. Pitcher r. Livingston, 4 Johns. Rep. 1. I have said that the lis pendens was, of itself, notice to the purchaser, and it will now be proper to show that this rule is well established in eur law. It is no more than an adoption of the rule in a real action at common law, where, if the defendant aliens after the pendency of the ■writ, the judgment in the real action will overreach such alienation. It was one of the ordinances of Lord Bacon, laid down for the better and more regular administration of justice in the court of chancery, that *'no decree bindeth any that cometh in bona fide, by conveyance from the defendant, before the bill exhibited, and is made no party, neither by bill nor order: but where he comes in pendente lite, and while the suit is in full prosecution, and without any colour of allowance or privity of the court, there regularly the decree bindeth." Lord Bacon's works, vol. 4. 511. Here we fuid the rule declared above two centuries ago, and by the highest authority to which we can appeal ; and it will appear to have received, support and application down to this day. In the case of Mar- tin V. Stikes (cited hj Lord Nottingham, in his Prolegomena of Equity, 524 MFERAY & WINTER v. BALLOU & HUNT [part i. and, again, in 11 Ves. 200), the bill was filed in 1640, and was abated, by death, in 1648; and a bill of revivor was filed in 1662, and the pur- chase was made in 1651, and yet, as the purchase was, by relation of the bill of revivor, made pendente lite, the purchaser was held bound, and by no less a character than Lord Clarendon. I cite this case, not with approbation, but merely to show the great extent to which the rule has been anciently carried. When this very case was, afterwards, in a new shape, brought before Lord Keeper Bridojiian^ 1 Cas. in Ch. 150 he observed, that it was not form, but the substance of a decree, that all are bound by it who come in, pendente lite. The case of Cul- pepper V. Austin, which was a few years subsequent, 2 Ch. Cas. 115, 221, is a strong determination on the same point: in that case the testator had conveyed his lands to his executors, in fee, to pay his debts; and after his death the defendant purchased the lands of the executors for a valuable consideration. The heir brought his bill, to have the land, on the ground that the lands were not wanted to pay debts ; and the Lord Chancellor held, that the suit pending between the heir and the trustee, to have an account, was sufficient notice, in law, without actual notice of the suit, and the party purchased at his peril ; so that if, in the event of the suit, it appeared that the sale was unnecessary and improper, the heir would recover against the purchaser. It turned out, afterwards, that the defendant lost his purchase, though he had no actual notice of the suit, and though he had purchased and paid the same day the bill was exhibited. Vide, as to this result, what was said by the Chancellor in Baens v. Canning, 1 Ch. Cas. 301. The case of Fleming v. Page and Blaker arose during the time of Lord Nottingham, Rep. temp. Finch, 321. These were purchases made by the defendants for a valuable con- sideration, but they were made pendente lite, and for that reason the purchasers were decreed to reconvey and deliver up the writings. The same general principal, that all persons who come in as purchasers, pendente lite, though they are no parties to the suit, they and their interests shall be bound and avoided by the decree, is laid down as the known law, in several cases to be found in Vernon, and to which it will be sufficient only to refer. Preston v. Tubbin, 1 Vern. 286; Anon. 1 Vern. 318; Goldson v. Gardner, cited in Self v. Madox, 1 Vern. 459; Finch V. Newnham, 2 Vern. 216. If we come down to more modern times, when the principles of equity may be supposed to have been more highly cultivated, and more pre- cisely defined, we shall find the rule recognised with equal force. Thus, in Sorrel v. Carpenter, 2 P. Wms. 482, the defendant purchased an estate, pendente lite, from one Ligo, after subpoena served on Ligo, and before answer, for the full value, and without any notice of the plaintiff's title, or actual notice of the suit. This was the strongest case that could be imagined, and under circumstances far more favourable to the pur- chaser than the present ; and Lord Chancellor King said, that it was a very hard case to set such a purchase aside, yet he admitted that such was CHAP, v.] MUKEAY & WINTER v. BALLOU & HUNT 525 the rule, and that it was taken from analogy to alienations pending a real action at law. This doctrine came frequently under the review of Lord Hard WICK K, and he always held that a purchaser, pendente lite, was bound by the decree in the suit. The pendency of the suit was, of itself, notice; and he observed, that the rule was to prevent a greater mischief that would arise by people's purchasing a right under litigation. Garth V. Ward, 2 Atk. 174; Worsley v. Scarborough, 3 Atk. 392. Lord Camden, afterwards, enforced the same rule. "I hold it," he said, "as a general rule, that an alienation pending a suit is void." Walker v. Smalwood, Amb. 676. I shall conclude this view of the English authorities with noticing the observations of the Master of the Rolls in the case of The Bishop of Winchester v. Paine, 11 Ves. 194. "He who purchases during the pendency of the suit, is bound," says Sir William Grant^ "by the decree that may be made against the person from whom he derives title. The litigating parties are exempted from the necessity of taking any notice of a title so acquired. As to them it is as if no such title existed. Otherwise, suits would be interminable, or which would be the same in effect, it would be in the pleasure of one party at what period the suit should be determined. The rule may sometimes operate with hard- ship, but general convenience requires it." It would be impossible, as I apprehend, to mention any rule of law which has been established upon higher authority, or with a more uni- form sanction; and 1 should have thought it necessary to apologize for wasting so much time on the point, if I had not found the rule, ancient and stable as it is, questioned and resisted by plausible considerations ad- dressed to the feelings. I may, also, be permitted to add, that as I am without the aid of any public reports, or any distinct knowledge of the decisions of this court during the time of my predecessors, I am obliged, in almost every case, to reassert, expound, and vindicate the principles of our equity jurisprudence. Many a point is now raised which would, probably, never have been disturbed, if the means had been afforded to learn the doctrines of the court; and it cannot be too often repeated, and too deeply impressed, that established principles in equity can no more be dispensed with than the rules of law, and for this plain reason, that I am not clothed with a dispensing i^ower. The persons in whose behalf this suit was instituted are, consequently, entitled to a conveyance of the land sold to Ballou, equally as if the title had remained in Winter. The suit is, also, against Hunt, the assignee of the bond and mortgage given by Ballou; and the counsel for the plaintiffs seek either the land or the proceeds of the sale, and appear to be equally willing to accept of either. Hunt purchased the bond and mortgage, as he says, without knowing or inquiring as to the consid- eration for which they were given ; and though he took them subject to all the equitable claims of Ballou, yet, as between him and the plaintiffs, the question may not be the same ; and I think it will be unnecessary for me to decide, at present, whether the doctrine of this case reaches him. 526 MURRAY & WINTER v. LYLBURN and others [part i. so as to protect from assignment all the bonds and other securities taken by Winter in his character of trustee. This point underwent much discussion in the House of Lords, in Red- fearn v. Ferrier and others, 1 Dow's Rep. 50; and it was there held, on appeal in a Scotch case, that a latent equity, in a third person, shall not defeat a bona fide assignee of a right without notice, except it be an assignment by an executor, which carried on the face of it notice of his fiduciary character. See p. 54, 59, 60, 66, 72. The claim raised by the bill against Ballou, for the land, and against Hunt, for the proceeds of the sale, are inconsisteait with each other; for the one annuls, and the other affirms, the sale. The claim to the land is clear of all difficulty, and comes within all the cases ; and the only use I shall make of the demand in the alternative, for the lands or the proceeds, will be to relieve Ballou as far as it is possible from the loss of his im- provements, by giving him the alternative, to convey the land, or keep the land, and pay the amount of the consideration he gave, together with the interest thereon. MURRAY AND WINTER v. LYLBURN and Others. In the Court op Chancery of New York, before Chancellor Kent, 1817. [2 Johnson's Chancery, 441.] The Chancellor [Kent]. The question is, whether the executors of Lylburn are to be held accountable to the cestui que trusts (in whose behalf Murray, as receiver, instituted the suit) for the bond and mort- gage, in like manner as W^inter may be, or would have been, had he not assigned them. The ease states, that the bill has been taken pro confesso against Sprague, the purchaser, and against Davis, who holds under him. It also states, that Davis is in possession. The cestui que trusts are not entitled to the land, and also to the pur- chase-money. The two claims, as I observed in the analogous case of Murray v. Ballou and Hunt, 1 Johns. Ch. Rep. 581, are inconsistent with each other. The one sets aside, and the other affirms the sale. If the cestui que trusts choose to disregard the alienation made by the trustee, pending the suit against him (as they may do, according to the settled doctrines of the Court), then they have nothing to do with these se- curities, but are to look solely to the land, taking no notice of the alienation by Winter. They ought to be put to their election. I am in- clined to think they may, if they please, affirm the sale, and look to these CHAP, v.] MURKAY & WINTER v. LYLBURN and others 527 securities; and if they do, then the bill, as against Sprague and Davis, ought to be dismissed. It is a general and well-settled principle, that the assignee of a chozs in action takes it subject to the same equity it was subject to in the hands of the assignor. 2 Vern. 691, 764; 1 P. Wms. 496; 1 Ves. 123; 4 Vesey, jun. 21. But this rule is generally understood to mean the equity residing in the original obligor or debtor, and not an equity residing in some third person against the assignor. He takes it subject to all the equity of the obligor, say the judges in the very elaborately argued case of Norton V. Rose, 2 Wash. Rep. 233, 254, on this very point, touching the rights of the assignee of a bond. The assignee can always go to the debtor, and ascertain what claims he may have against the bond, or other chose in action, which he is about purchasing from the obligee; but he may not be able, with the utmost diligence, to ascertain the latent equity of some third person against the obligee. He has not any object to which he can direct his inquiries; and, for this reason, the claim of the assignee, without notice of a chose in action, was preferred, in the late case of Redfearn v. Ferrier and others, 1 Dow. Rep. 50, to that of a third party setting up a secret equity against the assignor. Lord Eldon observed, in that case, that if it were not to be so, no assignments could ever be taken with safety. I am not aware that this decision was the introduction of any new principle, in the case of actual bona fide purchases or assign- ments by contract; though Lord Thurlow said, in one case, 1 Vesey, jun. 249, that the purchaser of a chose in action must abide by the case of the person from whom he buys ; but he spoke this on a question between the assignee and the debtor. In assignments, by operation of laiv, as to as- signees of bankrupts, the case may be different ; for such assignments are said to pass the rights of the bankrupt, subject to all equities, and precisely in the same plight and condition as he possessed them. 1 Atk. 162; 9 Vesey, 100. The ground, however, on which I place the right of the cestui que trusts, in this case, to pursue the bond and mortgage in the hands of the assignee of Winter, is the constructive notice to all the world, arising from the bill and supplementary bill, filed in 1809, against Winter, for a breach of trust. The object of that suit was to take the whole subject of the trust out of his hands, together with all the papers and securities relating thereto. If Winter had held a number of mort- gages, and other securities, in trust, when the suit was commenced, it cannot be pretended, that he might safely defeat the object of the suit, and elude the justice of the Court, by selling these securities. If he possessed cash, as the proceeds of the trust estate, or negotiable paper not due, or perhaps movable personal property, such as horses, cattle, grain, &c., I am not prepared to say the rule is to be carried so far as to effect such sales. The safety of commercial dealing would require a limita- tion of the rule; but bonds and mortgages are not the subject of ordinary commerce; and they formed one of the specific subjects of the suit against Winter, and the injunction prohibited the sale and assignment 628 MUERAY & WINTER v. LYLBURN and others [part i. of them as well as of the lands held in trust. If the trustees, pending the suit, changed the land into personal security, as he did in this case, I see no good reason why the cestui que trusts should not be at liberty to affirm the sale, and take the security; and whoever, afterwards, purchased it, was chargeable with notice of the suit. He was dealing with a subject out of the ordinary course of traffic, and always understood to be subject to certain equities ; and there can be very little ground for the complaint of hardship in the application to such a case, of the general doctrine of the Court. There is no principle better established, nor one founded on. more indispensable necessity, than that the purchase of the subject mat- ter in controversy, pendente lite, does not vary the rights of the parties in that suit, who are not to receive any prejudice from the alienation. The latent equity here might easily have been discovered by Lylburn, when he purchased, by applying to the records of this Court. If the cestui que trust be entitled, as between him and his trustee, to take the securities or the land, at his election, it ought not to be in the power of the trustee to defeat that election, by selling the securities. The litigating parties are not to have their rights affected by any alienation during the pendency of the suit. This doctrine was fully considered, and the authorities reviewed, in the case of Murray v. Ballou, 1 Johns. Ch. Rep. 566, and I do not know that it is in my power to add anything material to what was there said. That case must be considered as the established law in this Court. If it were necessary to give further proof of the uncontradicted existence and uni- form support of the rule, I might refer to the ancient rule at law, Jack- son V. Ketchum, 8 Johns. Rep. 479, that a purchase of land, pending a suit concerning it, was champerty. It was also the maxim of the common law that pendente lite nihil innoventur. In the recent case of Mfttcalf V. Pulvertoft, 2 Ves. & Beame, 200, the English Vice-Chancellor reviewed the cases, and vindicated this doctrine. So, in the case of Gaskell v. Durdin, 2 Ball & Beatty, 167, the present Lord Chancellor of Ireland declared the rule in the following clear and emphatical language : " The rule of this Court undoubtedly is, that any inter- est acquired in the subject matter of a suit, pending the suit, is so far considered as a nullity, that it cannot avail against the plaintiff's title; and if this rule were not attended to, there would be no end to any suit ; the justice of this Court would be evaded, and great hardship and inconvenience to the suitor necessarily introduced. It is extremely difficult to draw any line, and very dangerous to allow of the rule being fritted away by exceptions." I shall, accordingly, decree, that the plaintiffs, by their solicitor, signify, by an election in writing, signed by such solicitor, and tiled in the register's office, their determination whether to proceed against the defendants Sprague and Davis for the land, or against the defendants Lylburn and Isham for the bond and mortgage mentioned in the plead- ings. That if such election be to proceed against the defendants Sprague CHAP, v.] COUNTY OF WAKEEN v. MARCY 529 and Davis, then the bill, as against the defendants Lylburn and Isham shall, from the time of filing such writing, stand dismissed and the defendants S. and D. shall, within thirty days, convey the lot in the pleadings mentioned to the present trustees, &c., and pay the costs of the suit against them; but that if such election be to proceed against the defendants Lylburn and Isham, then the bill, as against the defcjidants Sprague and Davis, shall, from the time of filing such writing, stand dismissed, and the said defendants Lylburn and Isham shall, within thirty days from the service of a copy of this decree, and of such election, at their own expense, reassign and deliver to the said solicitor, or his order, for the use of the cestui qve tnisls, for whose benefit this suit was instituted, the said bond and mortgage together with all the right and interest of their testator, at the time of his death, therein, and shall also pay the sum of 157 dollars and five cents, which they have admitted, by their answer, to have been received by their testator, on the bond and mortgage, subsequent to the assignment thereof, together with lawful interest thereon, from the 30th of November, 1811, when it was re- ceived; and that if the plaintifts shall not make and file their election, as aforesaid, within forty days from the date of this decree, then the bill, as to all the defendants, shall be dismissed. As to the question of costs, I have not charged the executors with costs, because there is no evidence that their testator purchased the securities under any other than constructive notice of the suit against Winter; and actual notice denied. The case, therefore, falls within the decision in Murray v. Ballou. But Sprague and Davis are made chargeable, in one event, with costs, because they are charged with notice, in fact, of the suit and injunction, and thej^ have admitted it, by suffering the bill to be taken pro confesso. And in the cases in which the bill is to be dis- missed, there having existed a just cause of suit, which is lost only in consequence of an election, or a default founded upon the direction in the decree, the defendants, even then, will have no equity to entitle them to the costs of the suit, and the dismissal is to them a favor. Decree accordingly. In County of Warren v. Marcy (1877) 97 TT. S. 96, 105-106, Mr. Justice Bradley said : It is a general rule that all persons dealing with property are bound to take notice of a suit pending with regard to the title thereto, and will, on their peril, purhase the same from any of the parties to the suit. But this rule is not of universal application. It does not apply to negotiable securities purchased before maturity, nor to articles of or- dinary commerce sold in the usual way. This exception was suggested by Chancellor Kent, in one of the leading cases on the subject in this country, and has been xjonfirmed by many subsequent decisions. 530 BEDFORD v. BACKHOUSE [part i. The learned Chancellor gave the history and grounds of the general doctrine of lis pendens, in 1815, in the case of Murray v. Ballou, 1 Johns., N. Y., Ch. 566, which is the leading American case on the subject, and deserves the careful study of every student of law. The fundamental proposition was stated in these words : " The established rule is, that a lis pendens, duly prosecuted, and not conclusive, is notice to a purchaser so as to affect and bind his interest by the decree ; and the lis pendens begins from the service of the subpoina after the bill is filed." p. 576. That case related to land, with regard to which the doctrine is uniformly applied. In the subsequent case of Murray v. Lylburn, 2 id. 441, decided in 1817, the same doctrine was held to apply to choses in action (in that case, a bond and mortgage) assigned by one of the parties pendente lite. But the Chancellor, with wise prevision, indicated the qualification to which the rule should be subject in such cases. Speaking of the trustee, whose acts were in question, he said : " If Winter had held a number of mortgages, and other securities, in trust, when the suit was com- menced, it cannot be pretended that he might safely defeat the object of the suit, and elude the justice of the court, by selling these securities. If he possessed cash, as the proceeds of the trust estate, or negotiable paper not due, or perhaps movable personal property, such as horses, cattle, grain, etc., I am not prepared to say the rule is to be carried so far as to affect such sales. The safety of commercial dealing would require a limitation of the rule; but bonds and mortgages are not the subject of ordinary commerce; and they formed one of the specific sub- jects of the suit against Winter, and the injunction prohibited the sale and assignment of them, as well as of the lands held in trust." Here we have the whole law on the subject. Subsequent cases have only carried it out and applied it.^ BEDFOED V. BACKHOUSE. In Chancery before Lord Chancellor King, 1730. [2 Equiti/ Cases Ahridged 615, pi. 12.] A. lent money on a Mortgage of Lands in Middlesex, and the Mortgage was duly registered. Afterwards B. lent Money on the same Security, and his Mortgage was registered. Then A. advanced a further Sum upon the same Lands, without Notice of the Second Mortgage. And it was held by Lord Chancellor KiNc; that the Registry of the second Mortgage was not constructive Notice to the first Mortgagee before his 'And sec the a(lniirn>)lo eases of Newman v. Chapman, 1823, 2 Randolph, 9.3. and Turner v. Iloupt. 1895, 53 N. J. Eq. 526, in which tlie doctrine is develof)('d and discussed on principle. CHAP, v.] FROST V. BEEKMAN 531 Advancement of the latter Sum, for tho' the Statute avoids Deeds not rec:istered as against Purchasers, yet it gives no greater Efficacy to Deeds that are registered than they had before; and the constant Rule of Equity is, that if a first Mortgagee lends a further Sum of Money wWvout Notice of a second Mortgage, his whole Money shall be paid in the first place. FROST V. BEEKMAN. In the Court of Chancery of New York, before Chancellor Kent, ISl-i. [1 Johnson's Chancery 288.] The Chancellor [Kent].' — Another and a more interesting question, is respecting the extent and effect of the registry of the defendant's mortgage, as notice to purchasers. It was a mortgage for 3,000 dollars, and, by mistake, the registry was only for 300 dollars. This mistake is the whole cause of the controversy. The mortgage act of the sess. 24 eh. 156, declared, among other things, that the registry of a mortgage should contain, not, indeed, the mortgage at large, but the essential parts of the mortgage, and among other specified parts, " the mortgage money, and the time, or times, when payable." To this register all persons whomsoever, at proper seasons, are at liberty to have recourse ; and the act declared that mortgages were to have preference, as to each other, according to the times of registry, and that " no mortgage should defeat or prejudice the title of any bona fide purchaser, unless the same should have been duly registered, as aforesaid." This registry is notice of the mortgage to all subsequent purchasers and mortgagees; and so the act was construed, and the law declared, by the court of errors, in the case of Johnson v. Stagg, 2 Johns. Rep. 510. The English authorities on this point do not, therefore, govern the case. The language of those authorities, undoubtedly, is, that the registry is not notice, though that doctrine is much questioned, and the point seems still to be floating and unsettled. Bedford v. Back- house, 3 Eq. Cas. Abr. 615, pi. 12; Wrightson v. Hudson, lb. 609, p. 7; Morecock v. Dickins, Amb. 678; Latouche v. Dunsany, 1 Schoale & Lefroy, 157. Sugden, 3d. Lond. ed., 524—7. Com. Dig. tit. 32 Deed, ch. 21. s. 11. The only question with us is, when, and to what extent, is the registry notice? Is it notice of a mortgage unduly registered? or is it notice beyond the contents of the registry? The true construction of the act appeiars to be, that the registry is ' A part of the opinion of the learned Chancellor dealing with the question of delivery and its essentials is omitted. Same case on appeal, 18 Johns. 544 (reversed.) 532 FEOST v. BEEKMAN [part i. notice of the contents of it, and no more, and that the purchaser is not to be charged with notice of the contents of the mortgage, any further than tliey may be contained in the registry. The purchaser is not bound to attend to the correctness of the registry. It is the business of the mortgagee, and if a mistake occurs to his prejudice, the consequences of it lie between him and the clerk, and not between him and the hona fide purchaser. The act, in providing that all persons might have recourse to the registry, intended that as the correct and sufficient source of informa- tion ; and it would be a doctrine productive of immense mischief to oblige the purchaser to look, at his peril, to the contents of every mortgage, and to be bound by them, when different from the contents as declared in the registry. The registry might prove only a snare to the purchaser, and no person could be safe in his purchase, without hunting out and inspecting the original mortgage, a task of great toil and difficulty. I am satisfied that this was not the intention, as it certainly is not the sound policy, of the statute; nor is it repugnant to the doctrine contained in the books, that notice to a purchaser, of the existence of a lease, is notice of its contents. Taylor v. Stibbert, 2 Ves. juri. 437; Hiern v. Mill, 13 Ves. jun. 118, 120; Hall v. Smith, 14 Ves. jun. 426. In that case, the party is put upon inquiry, and he must make it, or abide the conse- quences. The decision, in Jackson v. Neely, 10 Johns. Hep. 374, was made upon the same principle; and it was held that the recital in a deed of a letter of attorney, by which it was made, was notice to the purchaser of the existence of such a power. But here the statute did not mean to put the party upon further inquiry. The registry was intended to con- tain, within itself, all the knowledge of the mortgage requisite for the purchaser's safety. The question does not necessarily arise, in this case, how far the un- authorized registry of a mortgage, as one made, for instance, without any previous legal proof, or acknowledgment, would charge a purchaser with notice of the mortgage. The better opinion, in the books, seems to be, that it would not be notice, and that equity will not interfere in favour of an encumbrancer, when he has not seen that his mortgage was duly registered. Sugden's Law of Vend. 527; 1 Schoale «fe Lefroy, 157; Iliester v. Fortner, 2 Binney, 40. But here everything was done that could have been previously required of the mortgagee. The mortgage was duly presented for registry, and he was not bound to inspect and correct the record. This was the exclusive business and duty of the clerk, and there is no reason why the registry should not operate as notice, to the amount of the sum mentioned therein; and, indeed, so far the obligation of the registry is admitted by the bill. I conclude, therefore, that' the registry was notice to purchasers, to the amount, and only to the amount, of the sum specified in the registry. We arc next Iccl to consider how far relief can be granted to the defendant consistently with these principles. CHAP, v.] FROST V. BEEKMAN 533 Whatever claims the defendant may have to favour, arising from the misfortune attending his case, yet it is an established rule, in equity, to give no assistance against a purchaser for a valuable consideration, with- out notice. Wallwyn v. Lee, 9 Ves. 24. He has equal claims upon the equity of the court. But, whenever actual notice of the true sum in the mortgage can be brought home to the purchaser, he is from that time, so far as the former purchase is left incomplete, either as to the deed on the one hand, or as to payments on the other, bound by the prior equitable lien, and all subsequent payments, by him, are made in his own wrong, so far as the rights of the mortgagee are concerned. As soon as notice is received, it arrests all further proceedings towards the completion of the purchase and payment, and, if persisted in, they are held to be done in fraud of the equitable encumbrance. Wigg v. Wigg, 1 Atk. 384 ; Story V. Lord Windsor, 2 Atk. 630. Thus, in Tourville v. Naish, 3 P. Wms. 306, it was held, that where a man purchases an estate, and pays part, and gives a bond for the residue, notice of an equitable encum- brance, before payment, thovigh after the giving of the bond, was suffi- cient to stop payment, and to entitle the obligor to relief, in equity, against the bond. Again, in Hardingham v. Nicholls, 3 Atk. 304, it was ruled to the same effect, that, if the purchaser for a valuable consideration had not paid the money when notice of the lien was received, though it was secured to be paid, the plea of such a purchase was not good against the plaintiff's title. There can be no doubt as to the rule of equity in this case, and the only difficulty is, to determine from what time the plaintiffs are to be charged with notice of the mistake in the registry of the mortgage. Frost and M. Goddard are to be treated as bona fide purchasers, without notice. It is so averred in the bill, and there is no proof to contradict it. The last deeds from Corl to them, though bearing date in September, 1805, were acknowledged in September, 1806, and are proved by the witnesses on the part of the plaintiffs, (Healy and Taylor), to have been executed in September, 1806. At that time, as Frost avers, they had no notice, in fact, of the registry, though they were chargeable with notice, in law; and when the notice, in fact, not only of the registry, but of the mistake in the registry, came to their knowledge, is left to be inferred from circumstances. They have not thought proper to dis- close the precise time, and the obscurity in which this fact is left by the plaintiffs, authorizes the presumption that they may have known it sooner than they are willing to declare. The bill does not state at what time the discovery was made of the registry, but only that, " on such discovery," Frost applied to the defendant, to pay him the 300 dollars, and was then first informed of the mistake. One of the witnesses (Whit- ney), would lead us to conclude that the first actual knowledge which the parties had of the registry was in September, 1807; and it was in September and November, 1807, as appears by the acknowledgments upon the deeds, that Frost and Martin Goddard sold to the other plain- 534 FROST v. BEEKMAN [part i. tiffs. I think that actual notice of the true mortgage ought to be fixed on Frost and Martin Goddard, as early, at least, as September, 1807. The purchasers from them, who are the other plaintiffs in the bill, make no averment of being bona fide purchasers, without notice of the true mortgage. They are perfectly silent on the fact of notice, and the bill is rather equivocal on this point, even as to Frost. He only says, that he and Martin Goddard alienated " without any knowledge or suspi- cion of any encumbrance, except the mortgage registered as aforesaid." In all cases in which a party sets up his title to relief in equity, as a bona fide purchaser, he must deny notice, though it be not charged. 3 P. Wms. 244. n., Bodman v. Bon Den Bendy, 1 Vern. 179. It is a general rule in pleading, that whatever is essential to the right of the party, and is necessarily within his knowledge, must be positively and precisely alleged; and the plaintiffs coming in the character of bona fide purchasers, were bound to state, affirmatively, the equity of their case ; if they will not aver the fact, that they were purchasers without notice, we are not bound to presimie it. The fact rests in their own knowledge. In Gerard v. Saunders, 2 Ves. jun. 454, the defendant pleaded a purchase for a valuable consideration, without notice ; and Lord Loughborough held, that he was bound to deny, fully, and in the most precise terms, every circumstance from whence notice could be inferred. One of the deeds to Frost, for 200 acres, was dated in 1803, and recorded in 1805, prior to the mortgage; and whatever payments were made upon that purchase before Frost was chargeable with notice of the true mortgage, though made prior to the time of the delivery of the defendant's deed to Corl, ought equally, with subsequent payments, to be protected against any further sum than that contained in the registry of the mortgage. Frost cannot be in a worse situation by paying money before Corl's title was perfected, than if he had paid it immediately after. As a bona fide purchaser without notice, and so long as that character is preserved, he is not bound beyond the sum in the registered mortgage ; and though no prior transaction between Corl and him could gain a preference over the mortgage as registered, because Corl had no title until the delivery of the deed to him, in consequence of that registry, yet, when the delivery took place, the prior deed to Frost, and the prior record of it, operated, instantly, so as to protect Frost's title from that time, and to render him a bo?ia fide purchaser, except as to the registered mortgage. It follows, of course, that all prior payments made by him became equally effectual, subject to the same limitation. A contrary rule would work odious injustice. The subject of the payments requires this further explanation: and payments to the endorsee or assignee of Corl, before notice, are the same as payments to him ; and if any part of the debt created by the purchasers, or either of them, has been duly transferred, so as to vest the interest in the assignee; and if either Frost or Goddard, before notice, had changed the debt in the hands of the assignee, by giving new notes or obliga- CHAP, v.] BLADES v. BLADES 535 tions to the bona fide holder, he ought to be allowed for this as payment, because he has extinguished so much of the old debt, and become abso- lutely bound to the new creditor.' BLADES V. BLADES. In Chancery, before Lord Chancellor King, 1727. [1 Equity Cases Abridged 358, pi. 12.] So in a Case between two Purchasers of Lands in Yorkshire, where the second Purchaser having Notice of the first Purchase, but that it was not registered, went on and Purchased the same Estate and got his Purchase registered; yet it was decreed, that having Notice of the first Purchase, though it was not registered, bound him, and that his getting his own Purchase first registered was a Fraud, the Design of those Acts being only to give Parties Notice, who might otherwise, without such Registry, be in Danger of being imposed on by a prior Purchase or Mortgage, which they are in no Danger of when they have Notice thereof in any Manner, tho' not by the Register.^ *"The principal question in this case is whether the deed of Stephen Dow, conveyed to the grantee a title which is superior to that of any grantee by a prior unrecorded deed of the grantor. This question was fully considered and discussed in Woodward v. Sartwell, 129 Mass. 210. In that case it was held that a deed by an officer, upon a sale or execution of 'all the right, title, and interest, of the judgment debtor in land specifically described in the deed, took precedence of a prior vmrecorded deed of the judgment debtor, and con- veyed to the purchaser a good title. The court put the decision upon the ground that an attaching creditor has the same standing as a bona fide purchaser, and that the deed of the officer 'is equivalent to a conveyance made by the debtor at the time the attachment was made; and in the case at bar, as the record title then stood in the name of the debtor, as to bona fide pur- chasers, he was the owner of the land.' "We are satisfied that these views are correct. We can see no sound dis- tinction between a deed made by an officer upon a sale on execution, and a deed made by the debtor himself. In either case the deed conveys all the title which the debtor had. and no more: but a prior unrecorded deed has no effect except as to the parties to it, and others having notice of it, and as to creditors and purchasers loaves the title in the grantor. Earle v. Fiske, 103 Mass. 491." Per Morton, C.J., in Dow r. Whitney, 1888, 147 Mass. 1, G. -In a valuable case at law, Lord IMansfield said: "But in respect of voluntary family settlements, to be sure, notice varies miich. In the case of a later statute. 7 Ann. C. 20, though it is said there positively, 'that a reg- istered deed shall take place of an unregistered deed' from whence it might 536 LE NEVE v. LE NEVE [part i. LE NEVE V. LE NEVE. In Chancery before Lord Chancellor Hardvvicke, 1747.' [1 Vesey, 8r. 64.] Edward Le Neve in 1718 married his first wife, who then had a considerable fortune ; a freehold and personal estate, with more personal estate in expectancy. His father had a leasehold estate which by articles were covenanted in consideration for the marriage, and her personal estate, to be settled on trustees and their heirs for Edward Le Neve for life, then for his intended wife for life, for a jointure if she sur- vived him: after their death, in trust for the issue of the body of Edward by her in such manner as he by deed in life, or by his will should appoint : in default of such issue, to Edward and his heirs. The marriage was had, and a settlement made in pursuance of the articles; there was issue; the wife died: the only children now be argued, that if a person knew of an unre.gi.stered deed, it should stand against him : Equity says, if the party knew of the unregistered deed, his registered deed shall not set it aside: because lie has that notice which the act of Parliament intended he should ha\e. "I now come to the consideration of the third question, 'whether the deed of 1773 is such a deed as is entitled to protection, and ought to set the other aside?' "In order to do that it should be a ho7W fide transaction, and a fair pur- chase, in the understanding of mankind; or for a good consideration, as a settlement upon a marriage, in consideration of the marriage; and then, such a settlement would set aside and take place of a former fraudulent deed. It is not necessary that it should be for money: but it must be a fair bona fide transaction: if it is colorable only it cannot stand." Doe i\ Rut- ledge, 1777, Cowp. 705, 712. And so in Stroud v. Lockhart, 1797, 4 Dall. L5.'], where it appeared that the defendant, Lockhart, knew of the existence of the mortgage at the time of purchase, and said he would pay it, although then unrecorded. The Court in a per curiam decision held : "The case is too plain for argument. The plaintifT must have a verdict; and all the trouble of the jury will bo to calculate the interest." Finally, in Agra Tiank. Lid. r. Harry. 1874, 7 H. L. 13,5. 148, Loid Chan- cellor Caikns said : ".And, my TiOrds, I take the explanation of those decisions to be that, which was given by Lord Ktn(! in the case of Blades v. Blades. 1 Eq. C. .\b. pi. 12, p. liryfi. npwaid of 150 years ago, the case which was mentioned just now at your Lord^hip'^' Bar." ' "I. Old ll.\i:iiwifKK, ihe s\iccessor of Lord TAT.nnT, held the greal seal for upwards of twenty years, and the present wise and rational system of English wpiity jurispriulencp owes more to him than perhaps to any of his predecessors, iris decisions are reported in Ihe elder Vesey and Atkyns, and partly in Ambler and Dickens: and though none of them are eminent reporters, either (■iiAP. v.] LE NEVE V. LE NEVE 537 living were the present plaintiffs, a son and a daughter. In 1743 Edward Le Neve married a second wife; but previously entered into articles with her trustees, for settling this very estate on himself for life, then on her for her jointure, and on the issue of that marriage; pursuant to which a settlement was made. This estate was subject to the Stat. 7 Queen Anne, cap. 20. which requires registry. The first marriage articles and settlement were never registered; the second were. Edward Le Neve also mortgaged this leasehold estate, as absolute owner. for acciuacy or precision in the statements of the cases, or in giving the judgment of the court, yet the vahie of his oi)inions, and the great extent (if his learning, and the solidity of his judgment, have been suflieiently per- ceived and understood. There is no judge in the judicial annals of England whose judicial character has received greater and more constant homage. His knowledge of the law, said a very competent judge, was most extraordinary, and he was a consummate master of the profession. His decisions, at this day, and in our own courts, do undoubtedly carry with them a more commanding weight of authority than those of any otlier judge; and the best editions of the elder Vesey and Atkyns will continue to fix the attention and study of succeeding ages." 1 Kent's Commentaries, 494. "Among English lawyers his position is unique. With less than the ordi- nary advantages of education, he proved more than competent in youth for offices which usually tax the powers of mature age. His maturity fulfilled the promise of his prime, and his later career crowned the whole with unperishable lustre. The term of his chief -justiceship was, indeed, too brief and uneventful to afford him an occasion of displaying his qualities to full advantage, but during his prolonged tenure of the great seal they found such scope as had been allowed to none of his predecessors ; nor did he fail to turn his opportunity to noble account. It is hardly too much to say that in the course of somewhat less than twenty years he transformed equity from a chaos of precedents into a scientific system. This grand revolution he effected in the quiet, unob- trusive, almost imperceptible manner in which the most dvnable results are usually achieved. Far from despising precedent, he diligently sought for and followed it whenever practicable. But the use which he made of it was such as the Baconian philosopher makes of the instances positive and negative upon which he founds a generalization. Each case as it came before him he reviewed in the light of all discoverable relevant authorities, and never rested vmtil he had elicited from them an intelligible ground of decision. Where English precedents failed he drew freely upon the learning of the civilians, and, in the last resort, upon his own large and luminous sense of natural justice. Thus in Hardwicke the rational and architectonic spiiit of the Roman jiuisprudence penetrated English equity, with the result that in a multitude of intricate questions his decisions have traced the lines within which his successors have undeviatingly proceeded ; and close and frequent scrutiny has only served to confirm their authority. His judgments, which in important cases were usually written, were always models of logical arrangement and perspicuous style. Only three of them were ever reviewed by the House of Lords, and in each case the decision was affirmed." Article on Yorke, Philip, first Earl of Hardwicke, in Diet. Nat'l Biography. 538 LE NEVE v. LE NEVE [part i. The bill (vide ante, 61). Such notice must, however, be in the same transactions. Eitzgib. 207, 2 Atk. 242 ; 3 Atk. 294, 392 ; Barn. Ch. 220, was brought by the children of the first marriage, to have an execution of the trust of the leasehold estate settled thereby ; and in order thereto to have the subsequent articles and settlement postponed, though registered : on the foundation of notice to the second wife, or her agent or trustee, of the first articles previous to her marriage, and the execution of the second articles; and to have the leasehold estate disincumbered of the mortgages made in prejudice of the trust : and that the plaintiffs may be let in according to the contingency. Lord Chancellor, having taken time to consider of the case, now pronounced his decree. The first settlement of this leasehold estate is an odd one, for it is settled as a freehold estate : however that will not affect the question, as it will vest in a proper manner. The plaintiffs admit the law to be against them from the defendant's registering; because the act gives the legal estate where the register has placed it, so that the general question is, whether there is sufficient equity for the plaintiffs to get the better of the legal estate vested in the defendant's trustee, who is a purchaser for valuable consideration? which will depend on the point of notice, and the consequences of it. To determine this, several questions have been considered : first, whether it sufficiently appears, that one Norton was agent or attorney for the second wife? Secondly, whether there is sufficient evidence of notice to him of the first articles; such as will be admitted according to the rules of this court ? Thirdly, supposing there is sufficient evidence, whether in equity it will affect the defendant's purchase, and oblige the court to postpone the second articles and settlement to the first ; notwithstanding the registry act. 7 Ann. c. 20. The first question will depend upon the answer of the defendant the second wife; who in general has denied notice of the first articles and settlement ; but says, that Norton was not employed for her, but as an attorney for her intended husband ; admitting that, he might prepare the articles, she having a confidence in him from her husband's recommenda- tion. So that her general denial must be taken with this admission ; which leaves it open to the proof of notice to her agent, although personal notice is denied. It is said, that notice to her husband's attorney or agent will not affect her; but she has sufficiently admitted, that he was agent or attorney for her, by bor consenting to his preparing the articles, from a confidence in her husband. So that no matter what ground she went upon, or on whose recommendation or advice ; it being the same to the plaintiffs : for it would be very inconvenient and mischievous to take inU) consideration the recommendation, from whence an agency arose; nr)r is it material, that the husband also employed him ; there being .several cases where in marriage settlements the same counsel or attorney arc employed on both sides, who would be both affected with notice to him; it Ix ing the same (o ji person having an e(iuity. There are two very CHAP, v.] LE NEVE V. LE NEVE 539 strong cases for this ; as Brotherton v. Ilatt, 2 Vern. 574, where the agent, whose notice affected the party, was employed on both sides, as I take it, and which is very clear authority: next Jennings v. Moor, 2 Vern. 609, S. C. ace. Bro. P. C. 278. (oct. ed.) under title "Blenkarne v. Jennens." See Maddox v. Maddox, ante, 62. post, 2 Vol. 370; Merry V. Abney, 1 Ch. Ca. 38 ; Sheldon v. Cox, Amb. 624, where the subsequent approbation of an agent affected the party with notice; though that was going much farther than is necessary to go in the present case. These cases clearly prove it to be not material to the plaintiffs, upon whose recommendation or advice Norton was employed, or that he was em- ployed by both; it being good notice to her, that he was employed by her. As to the second question : it is objected for the defendant, that notice being denied by her answer, and proved by one witness, it is contrary to the rules of the court to admit it ; which is generally true : but that admits of this distinction ; where the defendant's answer is a clear denial of a fact, which is proved only by one witness, the court will not decree against the answer. But where it is not a positive denial of the same fact, but admits of a difference, that it is only a denial with respect to herself, whereas in other respects it will equally affect her, there are several cases, where the court on one undoubted witness will decree against the answer (see 1 Vern. ]3G, 161, post, 97; 2 Atk. 19, 140; 9 Ves. 275; 12 Ves. 278, etc.) ; then here she denies only personal notice: which is a negative pregnant, that still there may be notice to her agent, and is a fact equally material. Then Norton swears, that a copy of the first article was delivered to him previous to the second, to take counsel's opinion, and that he might have verbal notice before: which is very strong; and the copy was delivered, to see, if they could get the better of this very settlement. So that this is such an evidence of notice, as to be admitted here. The last question depends on two things : first, whether any notice whatsoever would be sufficient to take away from the defendant a pur- chaser for valuable consideration, the benefit of the act? Secondly, whether notice to the agent would do so? The first is of great consequence and extent. The intent of the pre- amble of the act was to secure subsequent purchasers and mortgagees, against prior secret conveyances, and fraudulent incumbrances; for the last of which there was no occasion to provide. The first means, that a subsequent purchaser having registered, should prevail against a prior secret conveyance, of which he had no notice : but if he had notice of a prior conveyance, for valuable consideration, which was vested properly, that is not a secret conveyance; the act does not say, that a subsequent purchaser shall be affected with no equity whatsoever; therefore, though its manifest operation is to vest the legal estate according to the prior registry; yet it is left open to all equity; for there is no danger to the subsequent purchase^, who might refuse, if he had notice of the prior 540 LE XEVE i-. LE XEVE [part i. good conveyance. This act therefore is properly compared to 27 H. cap. 10. of inroknents or bargains and sales; being much to the same effect, though not in the same words. The meaning of this act was, because before, when uses were in being, any agreement passed the use to the bargainee from the bargainor ; which occasioned great mischief ; being prejudicial to the crown, intangling purchasers, and overturning the common law as the solemnity of livery : to prevent which it enacted inrolment. But the rule thereon ever since is, that an inrolment by a subsequent bargainee having notice of a prior bargain for valuable con- sideration, whether by actual agreement to pass immediately or by articles, is not material : for he is equally affected with that notice, as if his conveyance was by feoffment, or lease and release. So that the operation of equity on both those acts is the same, and is reasonable ; for it were strange, that a conveyance in such a form should exclude any equity; which would give an opportunity to take advantage of having the legal estate to commit fraud : and to this purpose the cases put for the plaintiffs are material. As suppose a purchaser employs an attorney, takes a conveyance, and pays the money and orders the attorney to register; which he neglects, but purchases it himself and registers it, that would be a ground for relief : so if it had not been his attorney, but one who prevailed with him not to register : or if it was done by one, who was privy to the first transaction, and knew it was not registered. These cases clearly shew, there may be relief against the force of those words, which gave a prior right to the prior registry: which brings it to the consideration of the cases on this head; which are but three. The first is. Lord Forbes v. Denniston, 4 Bro. P. C. 189, octavo edit., and S. C. 13 Vin. Ab. 550. and 19 Vin. Ab. 514, which not being rightly understood, shall be mentioned particularly. It arose in Ireland, where a General Register Act, 6 Queen Anne (there is a material difference between the Registers Act for Ireland and those in England. By the Irish act, 6 Ann. c. 2, an absolute priority is expressly given to the instrument first regis- tered. Vide Sch. & Lef. Rep. 9S. Et. ibid. 159, 160— The registry of a deed in Ireland is not. of itself, notice, ibid. 90. 157) ; Lord Graxard was seised of a large estate, of which he was only a tenant for life by mar- riage settlement, remainder to his first and every other son in tail, with power to make leases for three lives, or twenty-one years in possession : in 1715. there were tenants, who surrendered and took a new lease from him for three lives at £30 per ann. but it was not registered: he becoming indebted came to an agreement with his first son Lord Forbes, who thereby took upon himself to pay his father's debts, and to pay an annuity to him, and another to his wife; in consideration of which the father conveyed his estate for life to trustees for Lord Forbe.'j, but Lord Forbes had no personal transaction in this, the whole being done by one Stewart ; who during the treaty had notice of a lease made, and got the last conveyance registered, which the lease was not. The trustees brought an ejectment to recover the estate from the lessees; who brought a bill for relief in the CHAP, v.] LE NEVE V. LE NEVE 541 Chancery there, before Lord Chancellor Middlkton ; who at first made a declaration, rather titan a decree, that the conveyance to the trustees was prejjared to destroy the lease, which was not registered ; and was therefore fraudulent against the tenants, though done without the intention of the father or son ; and recommended it to have the lease established ; if not he would give judgment. The parties not agreeing, he decreed it fraudu- lent, though Stewart alone had notice, and decreed a perpetual injunction against the ejectment. I^pon appeal to the Lords here, it was fully considered; and they made a decree 23d February, 1722, which requires explanation: for it is commonly cited as if the judgment were affirmed; whereas it was reversed; not because the Lord Chancellor there went on a wrong principle; but because he made a wrong decree upon that prin- ciple; for thereby the lease would be good, though not warranted by the father's power. The Lords therefore reduced it to what was right; giving the tenants full relief against the defect of the registry; quieting the possession during the father's life; and granting an injunction against the judgment in ejectment : but after the father's death left it open to dispute the lease, if not made in pursuance of the power; for after death of the father, who was only tenant for life, the register act was out of the case. The second is the case of Blades v. Blades, 1 Eq. Ca. Ab. 358. pi. 2, May 2, 1727, by Lord King; which is a very material authority. A will not being registered, the heir at law gets into posses- sion, and mortgages to one who registers; and so having the legal estate, and being a purchaser for valuable consideration, insisted that the devisee had no equity, to take from him the benefit of the registry act. But the mortgage was declared fraudulent and set aside, on the foot of the mortgagee's having had notice of the will's not being registered; yet it does not appear in the bill or answers, that there was any charge of actual fraud ; the only charge being notice. The third case happening on the registry act is, Chival v. Niccols & Hall, 1 Stra. 664, in the Exchequer, December 10, 1725, which is a clear authority for relief against the registry act, on the circumstance of notice : but it is not material to state it, because there was a charge of fraudulent circum- stances in the party claiming the benefit of the act ; and therefore so far not applicable to the present case. The two other cases went on notice only, and the first on notice to the agent ; for the Lord Chancellor excused the father and son from notice of the contrivance. The ground, on which all the cases went, was that taking the real estate after notice of a prior right for valuable consideration was a fraud, and took away the hona -fides of the second purchaser, and making it mala fides; which is agreeable to the definition of fraud in the civil law. Digest, lib. 4 tit. 3 et fraus nemini patrocinari debet, 3 Co. Rep. 17Sb. This being so on notice in general : the next consideration under this head is, whether notice to the attorney or agent is sufficient ; which is a consequence of the former decision. It must' be admitted, that some notice would be sufficient, as actual personal notice ; and such as in the 542 LE NEVE v. LE NEVE [part i. cases put for the plaintiff; and fraud in the party being the foundation, it is the same whether in the party himself, or the person employed. These articles were put into Norton's hands, to see if they could get the better of them, and circumvent the issue by the first marriage; to which it is objected for the defendant, that here may be a fraud upon her; for admitting Norton knew of this, it might be done by collusion with the husband to cheat her ; which indeed may be true, and has happened in several cases ; but ought not the person who trusted and employed him, at whosesoever recommendation, to suffer by this fraud, rather than a stranger? The rule is, that he, who trusts most, must suffer most. This imposition happened in the two cases in Vern. and that of Lord Forbes : and yet they were affected with notice ; and otherwise it would overturn, several cases determined on notice to agents, and make it very precarious; for agents do frequently use imposition. But this case is stronger ; for Norton was not only her agent in the transaction, but her trustee ; and there are several cases, where notice to a trustee, who is not barely nominal, being privy to the transaction and accepting the trust, will affect the party : so it will here, and take from the defendant the benefit of the register act. Then the question is, what decree should be made? It is objected, that the plaintiff's interest under the articles is merely contingent : and it is true, that without issue, it will go to the father, at whose death the will or deed appointing must be known. Yet the plaintiffs are intitled to come here for relief: for a contingent interest is such, as the court will take care for the benefit of the party when it happens. Decreed that Norton having full notice of the first marriage articles and settlement, the second should be postponed thereto ; and the trustees in the second to convey and assign the leasehold estate accordingly, at the expense of the defendant the father : but as to the other defendants the mortgagees, no notice of the first articles being proved on them, the plaintiffs have no right, but on redeeming them for what is due for principal, interest and costs. But the plaintiffs have a clear right to have the leasehold estate disincumbered against these mortgages by the father ; and as the court has in several instances given credit to an answer, so as to make it the foundation of an inquiry, let the master inquire what portion or provision the father gave his daughter upon her marriage; for it would be hard to direct a disincumbrance as to her, who had already received a portion. The father to pay costs hitherto; and had not the plaintiffs examined Norton as a witness, they should have costs against him. Note. The case of Irons v. Kidwel, October 29, 1728, was cited by the Attorney-General ; where the bill was to set aside a purchase by the defendant, subsequent to the plaintiff's title, which was not registered, whereas the defendant's was: and it was there insisted, that the registry act should not avail the defendant, because he had notice; which notice was only that a bill was filed in Chancery, and that lis pendens should CHAP, v.] PLUMB v. FLUITT 543 afEect the defendant : but Lord King, though he allowed the general rule of notice, thought it not such a notice as should take away the de- fendant's benefit of the statute; for that what did afEect the party's conscience, would not be ground for equity to relieve.^ PLUMB V. FLUITT. In the Exchequer, 1791. [2 Anstruther 432.] It was a bill brought for a sale, in order to obtain payment of two mortgages made by one Basnett of the lands in question, and to restrain the defendant from proceeding at law to recover possession of the premises. It appeared that about the beginning of the year 1779, Basnett being indebted to Pattison Ellames, and then obtaining a further loan from him, amounting together to the sum of 3161. delivered to him the title- deeds of one of the premises in question, called Massey's Lodge, as a security, and signed a memorandum stating himself to have done so, and binding himself to mortgage the same to Ellames, for his further se- curity, when requested. Being about the same time indebted to the plain- tiff Plumb in the sum of 12,0001. he deposited with him the title-deeds of the other premises in question, called Massey's Office, or The Warren, as a security for that sum. The bill also charged an undertaking to com- plete this security by a mortgage, when required; but no memorandum to that effect was entered into. About the month of June 1779, Basnett appearing to be in declining circumstances, and then indebted to the defendant Fluitt in 5301. was pressed by him for pa\anent or security of that sum; and accordingly, on the 2d of July in that year, executed to him a mortgage to that amount of both the estates above-mentioned. The circumstances of thii transaction were disputed. The plaintiff en- deavoured to fix the defendant with actual notice of the deposits, and for that purpose read the testimony of Basnett, who swore that he had in- formed the defendant of the deposits of the title-deeds before the execution of the mortgage. Eyre, Chief Baron. — The legal estate being in the defendants, the question is, whether the plaintiff can raise a trust upon his estate, so as to gain a priority for his own demand ? It is now fully settled, that a deposit of title-deeds, as a security for * Same case is reported at greater length in 3 Atk. 646 ; 2 White and Tudor's Equity Cases, Jth ed., 175, with elaborate annotations. 544 PLUMB V. FLUITT [part i. a debt, does amount to an equitable mortgage. If the plaintiff can prove actual or constructive notice of the deposit in the defendant, it raises a trust in him to the amount of that equitable mortgage. As to the evi- dence of actual notice, the testimony of Basnett alone, unsupported and opposed, is too weak to found a decree or even to direct an issue upon it. Swearing to the fraudulent intention of his own deed, he can expect little credit in a Court of Equity. A great deal has also been said about constructive notice. Constructive notice I take to be in its nature no more than evidence of notice, the presumptions of which are so violent that the Court will not allow even of its being controverted. Thus, if a mortgagee has a deed put into his hands which recites another deed which shews a title in some other person, the Court will presume him to have notice, and will not permit any evidence to disprove it. The only reason that can raise in this case a notion of constructive notice is, that the deeds were not forthcoming. But is it possible that this circumstance can, of itself, be notice of the hands into which they are fallen, or the purpose to which they have been applied? At the utmost it can only be a circumstance of evidence, to shew that there was reason for further inquiry; but being unsupported by any other circumstances, it proves nothing. It is said, no man will advance money upon an estate without seeing the title-deeds, unless with a fraudulent intention. I wish I saw, in a Court of Equity, some solid distinction established between a consideration which is an old debt, and a sum advanced de novo; there certainly is a great difference; in the one case the creditor jumps at every security he can get ; he takes the deed of conveyance now, and trusts to getting the title-deed afterwards: but till such a distinction is established, it is difficult to apply the reasoning which would belong to it. The person who takes the legal estate without the deeds, in a case like this, appears to me, unless there be fraud, to be less blamable than he who takes the deeds without the estate. Upon all the circumstances, I can see nothing in the case that amounts to constructive notice. With respect to the general question, the effect of leaving the title- deeds in the hands of the mortgagor, the most intelligible rule, and in my opinion the most agreeable to justice, would have been to say, that if a man takes, as his security for his mortgage, a single deed, and leaves the other deeds in the hands of the mortgagor, so as to enable him to commit a fraud, that he shall, in all such cases, be postponed, without reference to the quantity of pains or diligence which he exercised to obtain the deeds; for whether the pains be more or less, the mischief is the same; and if I found the rule so laid down, I should have been perfectly satisfied. But it has been decided otherwise in the late cases. Beckett v. Cordley, Penner v. Jemmat, 2 Bro. B. G52, and Tourle v. Rand, which CHAP, v.] PLUMB V. FLUITT 545 establish the rule that nothinj^ but fraud, or gross and voluntary negli- g-ence in leaving the title-deeds, will oust the priority of the legal claimant. As for the case of Goodtitle v. Morgan, the mortgagee must always risk there being an outstanding term, in which case the legal estate is out of him. The opinion of Justice Burnett in Ryal v. Howies, when taken altogether and explained by the context, is not contrary to the rule that is now established. The case of Mocatta v. Murgatroyal is a strong case ; but I find no one that goes the length of saying, that a failure of the utmost circumspec- tion shall have the same effect of postponing a mortgagee as if he were guilty of fraud or wilful neglect. In the present case, all the negligence, or all the activity in the world would have left the defendant in exactly the same situation in which he now is. He took this mortgage as the only security he could get; if it was already mortgaged, he was only where he was before; he seizes it as a plank to save something; for as a second mortgage it was worth something. The plaintiff having therefore failed in making out his case of fraud, either by actual or constructive notice, and the general proposition not being supported, which, if established, must apply to purchases as well as to mortgages, the bill must be dismissed with costs.' ^ "The plaintiff is to be considered as a bona fide purchaser. A conveyance in trust to pay debts is a valid conveyance founded on a good consideration. Stephenson v. Hayward, Prec. in Ch. 310. Nor do I think that the plaintiff is chargeable with notice sufficient to postpone the operation of his assignment in trust. All the notice in the ease is contained in the schedule to the assign- ment, stating that the title to the 50 lots is, in the name of the defendant, given as collateral secvu'ity to pay certain notes. The notice that is to break in upon the registry acts must be such as will, with the attending circum- stances, affect the party with fraud : and here is certainly no fraudulent in- tention to be imputed to the plaintiff. Tlie gi-ound of the numerous decisions on this subject seems to be, the actual fraud of the party in taking a second conveyance with knowledge of the first, and with intent to defeat it. There may possibly be cases, as Lord Hardwicke observes in Hine v. Dodd, 2 Atk. 275, in which the registry acts are set aside upon notice devested of fraud; but then the proof must be extremely clear. In this case, the notice arising from the schedule was lame and defective. There was no notice as to the amount of the notes, or how many, or when payable; whereas every registry of a mortgage must specify, with certainty, the mortgage money, and when payable. The plaintiff in this case might not have inferred from the schedule that the defendant held any thing more than a nominal title, and, perhaps, as a mere trustee upon some extinguished debt. It was not even said to be a subsisting debt. If notice that is to put a party upon inquiry be sufficient to break in upon the policy and the express provisions of the act, then, indeed, the conclusion would be different; but I do not apprehend that the decisions go that length. Tliis would be too slight a foundation to act on in opposition to the statute. Here is no evidence that any possession was ever taken under the mortgage. There was nothing except the loose information in the 546 GKESS v. EVANS et al. [part i. GEESS V. EVANS et al. In the Supreme Court of Dakota, 1877. [1 Dalcota 387.] This action was brought to quiet plaintiff's title to certain land set out in detail and to remove a cloud from his title caused by certain deeds executed and delivered to defendants for said land, and which were by them placed on record before the plaintiff's deeds were recorded.^ Shannon, C. J. — As to the title of the plaintiff, Gress, the Judge found " that the chain of title from the general government to plaintiff is complete, and the deed from Byron M. Smith to plaintiff vested in him absolutely the fee-simple title, where it still remains unless it has been divested by the subsequent conveyances to defendants." And as to these, it is further found that " the deeds from Jane L. Titus and Moses S. Titus to Evans, and from Evans to Burbank, were executed and delivered subsequent to, but recorded before the deeds to Smith and from Smith to plaintiff." And this, from the pleadings themselves, is the substantial paramount point in the whole controversy. The complaint substantially alleges fraudulent designs and intentions on the part of the defendants in pro- curing and recording their deeds, and charges that before the dates of their deeds they had full, complete, and actual notice of the prior unre- corded deed from the Tituses to Smith. The defendants, in their answers, deny all fraudulent purposes, and assert that they were pur- chasers in good faith and for a valuable consideration, and had no notice, either actual or constructive, and claim that they should be protected. The defendants having, admittedly, their deeds first duly recorded, the direct and vital issue before the trial court was : — were the defendants purchasers in good faith and for a valuable consideration? Had they notice either actual or constructive? Upon this issue the findings are, that " the deed from Jane L. and M. S. Titus to Evans, dated May 17th, 1871, as before stated, is in form a quit claim — 'by these presents grant, bargain, sell, release, and quit claim ... all their right, title, interest, claim, or demand. . . . schedule; and under such an equitable and meritorious assignment as this, 1 do not deem that sufTicient to render the assignment fraudulent in the hands of the piaintifT. Nothing can he stronger than the language of Lord Alvan- LEY in Jolland v. Stainbridge, 3 Ves. 478. 'The person,' he says, 'who takes subsequently, must know exactly the situation of the prior deed, and have meant to defraud.' All the cases appear to me to turn upon fraud resulting from the notice." Per Chancellor Kent in Dey v. Dunham, 1816, 2 Johns. Ch. 182, 189. ' A short statement is substituted for tlie elaborate facts of the report, and of the opinion only a portion is printed relating to question of notice. CHAP, v.] GEESS V. EVANS et al. 547 To have and to hold the above quit claimed premises ... so that neither the said party of the first part, their heirs or assigns, shall have any right, title, or interest in and to the aforesaid premises.' " " The second deed to Evans, dated August 11th, 1871, is the same in form, with the exception of the covenants which are as follows : ' and the said party of the first part . . . doth covenant with the said party of the second part . . . that they have not made, done, or executed, or suffered any act or thing whatsoever whereby the above premises, or any part thereof, now are, or at any time hereafter shall or may be imperilled, charged, or incumbered in any manner whatsoever.' " The next important finding is : — " That Evans was not a purchaser in good faith, but that he obtained his deed by fraud and misrepresenta- tion." And again that " it is disclosed by the evidence that Mr. and Mrs. Titus were induced to make this deed by the representations of Evans that he was the person entitled to it; that he was the owner of the land, but that there was some defect in his title which he wished remedied," etc. And furthermore it is found, that " when he " (Evans) " applied to Mr. Titus for a deed he was told by Titus that they had sold the scrip, and that they did not claim any right in the land, that they considered the land sold so far as they were concerned." To this the Judge imme- diately adds as follows : " Evans knew he was not the purchaser of the scrip, or his assignee, and he made no inquiry as to who had pur- chased the scrip, or whether they had previously executed a deed." There is another finding relative to non-inquiry from Smith, which concludes by stating that Evans "at no time asked him" (Smith) "if he had received a deed, although from previous conversations he must have known that Smith had, or claimed to have, some interest in the land." But as to the defendant, Evans, there is yet another significant finding, which is as follows : " The evidence clearly establishes the fact that he " (Evans) " paid no consideration whatever. No consideration was men- tioned or alluded to. After the deed was executed and delivered, Evans made a present to Mrs. Titus of ten dollars, as he then stated, to com- pensate them for their trouble. It was neither given nor received as a consideration for the deed. The grantors neither asked nor expected anything, but made the deed to Evans because they supposed him to be the party entitled to it, and for the purpose of curing some defect in his title." Such are the prominent findings of fact in relation to the defendant, Evans, on the issue of his being a purchaser in good faith and for a valuable consideration. And we must next turn attention to the findings regarding the other defendant, Burbank. As to him, the Judge has found as follows, to-wit : " He " (Burbank) " admits that he was told that Smith had a power of attorney from Titus and husband to locate certain scrip upon the land in controversy, and might hold a power of attorney to convey said land, or a deed to the same. It does not appear that he made any effort to find out anything further in relation to the 548 GEESS v. EVANS et al. [part i. matter, except to examine the records. He did not inquire of Smith, or attempt to ascertain his address or anything of the kind. It does not even appear that he was ignorant of Smith's whereabouts, or that he might not have readily applied to him for information. He claims to have inquired of others, but their names he does not disclose." From these findings, the trial court deduced the conclusions that " Bur- bank cannot stand as a hona fide purchaser without notice," and that Evans was in the same position ; and that " the equities of this cause are with the plaintiff, and that the deeds to defendants are fraudulent and void as against him." Is there any error in this? Our Civil Code makes void a conveyance not recorded, only as against a subsequent purchaser of the same property, or any part thereof in good faith and for a valuable consideration. See Civil Code of 1866, § 530; revised Codes, page 341, § 671. Actual notice of a prior un- recorded conveyance, or of any title, legal or equitable, to the premises, or knowledge and notice of any facts which would put a prudent man upon inquiry, impeaches the good faith of the subsequent purchaser. There should be proof of actual notice of prior title, or prior equities, or circuna- stances tending to prove such prior rights, which affect the conscience of the subsequent purchaser. Actual notice, of itself, impeaches the subsequent conveyance. Proof of circumstances, short of actual notice, which should put a prudent man upon inquiry, authorizes the Court, or jury, to infer and find actual notice. Or to express it exactly, good faith consists in an honest intention to abstain from taking any unconscientious advantage of another, even through the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction \n\- conscientious. And notice is either actual or constructive. Actual notice consists in express information of a fact. Constructive notice is notice imputed by the law to a person not having actual notice ; and every person who has actual notice of circumstances sufiicient to put a prudent man upon inquiry as to a particular fact, and who omits to make such inquiry with reasonable diligence is deemed to have con- structive notice of the fact itself. Civil Code of 1866, §§ 2007-8-9-10-11; Ptevised Codes, pages 504-5, §§ 2105-6-7-8-9. Viewed in the light of this law on the subject, from the findings, clearly the plaiutiflf's unrecorded conveyances were not void as against Evans; and as the admissions of Burbank are to be taken most strongly against himself, he must be considered as having had notice of circum- stances sufficient to put a prudent man upon inquiry, and having omitted to make such inquiry with reasonable diligence, he must be deemed to have had constructive notice of the fact itself. The learned Judge who tried the issues, arrived at a conclusion of law which in a case like the present, so pregnant with other over- shadowing circumstances, it is unnecessary now to examine or determine. He was of opinion that by a deed which (like those to Evans) simply CHAP, v.] SIMMONS CKEEK COAL CO. v. DOEAN 549 purports to pass "the right, title, interest, claim, or demand" of the grantor, the grantee does not obtain anything which the grantor had previously parted with, although the subsequent deed was first re- corded; that such grantee cannot be regarded as a bona fide purchaser without notice; that, therefore, Burbank took nothing under his deed from Evans, as Evans had nothing to convey, and that the terms of the quit claim conveyances to Evans were, of theriiselves, notice to both Evans and Burbank. Brown v. Jackson, 3 Wheaton, 450; Oliver v. Piatt, 3 How. 396; May v. McClair, 11 Wallace, 232; Smith's Heirs v. Bank of Mobile, 21 Alabama, 124; Eogers v. Burchard, 34 Texas, 441; Bragg V. Paulk, 42 Maine, 502 ; Walker v. Lincoln, 45 Maine, 67 ; Doe v. Eeed, 5 Ills. 117; Coe v. Persons Unknown, 43 Maine, 452; Martin v. Brown, 4 Minn. 282; Everett v. Ferris, 16 Minn. 26; Marshall v. Eoberts, 18 Minn. 405. But see Graff v. Middleton, 43 Cal. 341 ; Jackson v. Fish, 10 Johns. 456 ; 3d Wash, on E. P. 314, 417 ; 33 N. H. 22 ; 34 Miss. 18 ; 23 Ver. 104 ; 5 Iowa, 66 ; 11 N. H. 74 ; 23 Texas, 614, and other authorities cited. It would seem there is much in the authorities quoted, although they are somewhat conflicting, to sustain the positions assumed by him. At all events, whatever the fact may have amounted to, Burbank was cognizant from the records that his grantor had only "the right, title, interest, claim or demand" of his grantors, in and to the land. In Simmons Creek Coal Co. v. Doran (1891), 142 II. S. 417, Fuller, C. J., said : The coal company insists, however, that it occupies the posi- tion of a bona fide purchaser for value without notice, and as such is entitled to the protection of the court. None of the original deeds in appellant's chain appear to have been pro- duced on the hearing, though certified copies were attached to the plead- ings, but no independent evidence was adduced of the payment by any of the defendants of any money whatever. As against complainant the re- citals in these deeds cannot be relied on as proof of the payment of the purchase-money. Boone v. Chiles, 10 Pet. 177 ; Flagg v. Mann, 2 Sumner, 486 ; Kyles v. Tait. 6 Gratt. 44 ; Warren v. Syme, 7 West Va. 474 ; Brown V. Welch, 18 Illinois, 343 ; Lloyd v. Lynch, 28 Penn. St. 419. Apart from this we hold appellant chargeable with notice. The rule is thus stated by the Virginia Court of Appeals, in Burwell's Adm'rs V. Fauber, 21 Gratt. 446, 463 : " Purchasers are bound to use a due degree of caution in making their purchases, or they will not be entitled to protection. Caveat emptor is one of the best settled maxims of the law, and applies exclusively to a purchaser. He must take care, and make due inquiries, or he may not be a bona fide purchaser. He is bound not only by actual, but also by constructive notice, which is the same in its effect as actual notice. He must look to the title papers under which he 550 SIMMONS CKEEK COAL CO. v. DORAN [part i. buys, and is charged with notice of all the facts appearing upon their face, or to the knowledge of which anything there appearing will conduct him. He has no right to shut his eyes or his ears to the inlet of informa- tion, and then say he is a hona fide purchaser without notice." Jones r. Smith, 1 Hare, 43, 55 ; Le Neve v. Le Neve, 3 Atk. 646 ; S. C. 1 Ves. Sen. 64 ; S. C. 2 Leading Cas. Eq. 109, 4th Am. ed. ; and Brush v. Ware, 15 Pet. 93, 114, are cited. In Mundy v. Vawter, 3 Gratt. 518, relied on by appellant, the registry 01 a deed of " all the estate both real and personal, to which the said James was in any manner entitled in law or in equity," was held not to be notice in point of law to a subsequent purchaser of the existence of the deed, nor would notice in point of fact of such existence and contents affect such purchaser, unless he had further notice that the land purchased by him was embraced by the provision of the deed ; "and the proof of such notice, whether direct or positive, or circumstantial and presumptive, must be such as to affect the conscience of the purchaser, and is not sufficient if it merely puts him upon inquiry, but must be so strong and clear as to fix on him the imputation of mala fides." But the latter branch of this ruling was disapproved of in Warren v. Syme, 7 West Va. 474 ; and in Fidelity Company v. Railroad Company, 32 West Va. 244, 259, it is said that " whatever is sufficient to put a person on inquiry is considered as conveying notice; for the law imputes a personal knowledge of a fact, of which the exercise of common prudence might have apprised him. When a subsequent purchaser has actual notice that the property in question is incumbered or affected, he is charged con- structively with notice of all the facts and instruments, to the knowledge of which he would have been led by an inquiry into the incumbrance or other circumstance affecting the property of which he had notice." Lord Hardwicke observed in Le Neve v. Le Neve, Amb. 436; 3 Atk. 646 ; 1 Ves. Sen. 140 : " That the taking of a legal estate, after notice of a prior right, makes a person a mala fide purchaser;" and the notes to that case in 2 Leading Cases in Eq. 109, discuss at length the doctrine of knowledge, actual notice, express or implied, and constructive notice, with abundant citation of authority. The conclusion of the Ameri- can editor is that actual notice embraces all degrees and grades of evidence, from the most direct and positive proof, to the slightest cir- cumstances from which a jury would be warranted in inferring notice, while constructive notice is a legal inference from established facts, and, like other legal presumptions, does not admit of dispute. Mr. Justice Story in his work on Equity Jurisprudence, § 399, adopts the language of Chief Baron Eyre, in Plumb v. Fluitt, 2 Anstr. 432, 438, that constructive notice is in its nature no more than evidence of no- tice, the presumption of which is so violent, that the court will not allow even of its being controverted. In later editions of that work. Judge Redfikld, lltli ed. § 410, a, says that the term constructive notice "is applied, indiscriminately, to such CHAP, v.] SIMMONS CREEK COAL CO. v. DORAN 551 notice as is not susceptible of being explained or rebutted, and to that which may be. It seems more appropriate to the former kind of notices. It will then include notice by the registry, and notice by lis pendens. But such notice as depends upon possession, upon knowledge of an agent, upon facts to put one upon inquiry, and some other similar matters, although often called constructive notice, is rather implied notice, or presumptive notice, subject to be rebutted or explained. Constructive notice is thus a conclusive presumption or a presumption of law, while implied notice is a mere presumption of fact." Vice-Chancellor Wigram in Jones v. Smith, supra, laid it down that cases in which constructive notice had been established, resolved them- selves into two classes; first, those in which the party charged had ac- tual notice that the property in dispute was in some way affected, and the court has thereupon bound him with constructive notice of facts to a knowledge of which he would have been led by an inquiry into the matters affecting the property, of which he had actual notice; and, sec- ondly, those where the court has been satisfied that the party charged had designedly abstained from inquiry for the purpose of avoiding no- tice. If there is not actual notice that the property is in some way affected so that the case does not fall within the first class, and no fraudulent turning away from a knowledge of facts which the res gestae would suggest to a prudent mind or gross and culpable negligence, so as to bring it within the second, then the doctrine of constructive no- tice would not apply. Each case must be governed by its own peculiar circumstances, and in that in hand we think appellant either had actual knowledge, or ac- tual notice of such facts and circumstances, as by the exercise of due diligence would have led it to knowledge of complainant's rights, and that if this were not so, then its ignorance was the result of such gross and culpable negligence that it would be equally bound. Again, actual and unequivocal possession is notice, because it is incum- bent on one who is about to purchase real estate to ascertain by whom and in what right it is held or occupied ; and the neglect of this duty is one of the defaults which, unexplained, is equivalent to notice. 2 Lead. Cas. Eq. 180; Landes v. Brant, 10 How. 348; McLean v. Clapp, 141 U. S. 429, 436 ; French v. Loyal Company, 5 Leigh, 627, 641 ; Western Mining Company v. Peytona Coal Company, 8 West. Va. 406, 441; Core v. Fau- pel, 24 West Va. 238; Morrison v. Kelley, 22 Illinois, 610. "Posses- sion," said Walker, J., in the case last cited, "may be actual or con- structive; actual, when there is an occupancy, such as the property is capable of, according to its adaptation to use; constructive, as when a person has the paramount title, which, in contemplation of law, draws to and connects it with the possession. But to be adverse it must "be a pedis possessio, or an actual possession." In Ewing v. Burnett, 11 Pet. 41, 53, it was held that neither actual occupancy nor cultivation nor residence necessary to constitute actual possession; that where 552 SIMMONS CREEK COAL CO. v. DORAN [part i. the property is so situated as not to admit of any permanent useful im- provements, and the continued claim of the party has been evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own right, and would not exercise f)vcr prop- erty he did not claim, such possession will create a bar under the statute of limitations; that what acts may or may not constitute a possession are necessarily varied, and depend to some extent upon the nature, local- ity and use to which the property may be applied, the situation of the parties, and a variety of circumstances which have necessarily to be taken into consideration in determining the question. And so possession of an improved portion of a tract of land, under a conveyance in fee of the whole, is construed to be co-extensive with the grant. And where a party purchases land adjoining a tract of which he is already in the occupancy, he will be considered as at once, in point of law, in the possession of the newly-acquired tract, when the latter is vacant, or at least not held under an adverse possession. ^ For further consideration of the question of notice, see the following weighty cases: Rogers v. Jones, 1836, 8 N. H. 264, per Parker, J.; Rorer Iron Co. V. Trout & Wife, 1887, 83 Va. 397; Robinson v. Crenshaw, 1888, 84 Va. 348. CHAP, v.] GYNN v. EDMONDS 553 Section 5. Estoppel/ GYNN V. EDMONDS. In Chancer\, before Lord Keeper Coventry, 1625-40.^ [Nelson's Chancery 28.] Rowland Owen being seised in fee of the premises in question, made a lease thereof to the defendant Edmonds for 21 years, and afterwards granted the reversion to the plaintiff Gynn. The term expired, but Edmonds refused to deliver the possession, alledging that before Rowland Owen had any estate or interest in the premises, one Owen ap. John was seised thereof in fee, and made a lease to the said Edmonds for 21 years, and afterwards granted the revision to one Griffith Edmonds, brother to the defendant, who released his right to the defendant, and affirmed that the first lease made by Rowland Owen was only to prevent suits at law which might arise, for that after the said release Griffith Edmonds had delivered the deed, viz., the grant of the reversion, to the said Rowland Owen, who was heir at law to Owen ap. John, the grantor, and that the acceptance of the lease from Rowland Owen ought only to be an estoppel during the term. But it appearing to the Court, that Griffith Edmonds, 1 In Morgan v. Railroad Co., 1877, 96 U. S. 716, 720, Mr. Justice Swayne uttered a happy epigram which states the law and its reason in a single sentence. "It proceeds upon the ground that he who has been silent as to his alleged rights when he ought in good faith to have spoken, shall not be heard to speak when he ought to be silent." The following cases at law are fundamental statements of the doctrine. Pickering v. Bush, 1812, 15 East 45; Pickard v. Sears, 1837, 6 A. & E. 469; Freeman v. Cooke, 1848, 2 Ex. 654, per Baron Parke; Cornish v. Abington, 1859, 4 Hurl. & N. 549; See more especially Horn v. Cole, 1868, 51 N. H. 287, where Chief Justice Perley discusses the doctrine in a masterly way and enumerates the authorities. For detailed treatment of the law see 2 Pom- eroy's Equity Jurisprudence, 3d ed., §§ 801-821; Bigelow's Estoppel, 5th ed., 556-672; Ewart's Exposition of the Principles of Estoppel by Misrepre- sentation. ^ Lord Hardwtcke has stated that Lord Keeper Co\'entry was "very able and contributed a great deal towards modelling the Court of Chancery." (Letter to Lord Kames in Parke's Chancery 508.) And another and later Lord Chancellor, while criticising his politics, says: "As an Equity Judge, he seems to have given entire satisfaction. He cer- tainly must have been familiarly acquainted with the law of England, and with the doctrines and practice of the Court of Chancery." (2 Campbell's Lives of the Chancellors, ch. LXII.) 554 HOBBS v. NORTON [part i. the grantee of the reversion, and under whom the defendant claimed by vertue of the said release, had made a feoffment of the premises to the plaintiff Gwynn, Anno 7 Jac, which was executed by Livery and Seisin, and to which the defendant Edmonds was a witness, and for that the defendant's title by the release was never set on foot until the lease was expired. Therefore the possession was decreed to Gwynn and his heirs, according to the grant of the reversion to him by Rowland Owen as aforesaid. HOBBS V. NORTON. In Chancery, before Lord Keeper North, 1683. [1 Vernon 136.] Sir George Norton's younger brother having an annuity of £100 per annum, charged on lands by his father's will, contracts with Mr. Hobbs for selling to him this annuity. Mr. Hobbs goes to Sir George Norton and tells him he was about to buy this annuity of his younger brother, and desired to know of him, if his younger brother had a good "title to it, and whether his father was seized in fee at the time of the making the will, and whether the will was ever revoked; Sir George Norton told him, he believed his brother had a good title to it, and that he had paid him this annuity these twenty years, but withal told him, that he heard there was a settlement made of his father's lands before the will; and that the said settlement was in Sir Timothy Baldwin's hands, and that he had never seen it, and therefore could not tell him what the contents of it were, but encouraged him to proceed in his purchase telling him, he had not only paid his brother his annuity to that time, but had paid to his sisters £3000 lender the same will. Afterwards Sir George Norton gets this settlement into his hands, and would avoid this annuity, the lands being thereby entailed. Hobbs's bill was to have this annuity decreed, or repayment of his purchase money. The cause coming on to be heard, there was no proof that Sir George Norton, at the time he encouraged Hobbs to proceed in this pur- chase, had any notice of this settlement. But one witness swore, that Sir George promised to confirm the annuity to Hobbs : but that being but by one witness, and contrary to Sir George Norton's answer, was looked upon as no evidence. It not being probable that Sir George should agree to confirm this annuity, for then he would have been made a party to the deed. Lord Keeper decreed the payment of the annuity, pvirely on the en- couragement Sir George gave Hobbs to proceed in his purchase, and that it was a negligent thing in him not to inform himself of his own CHAP, v.] HUNSDEN v. CHEYNEY 555 title, that thereby he might have informed the purchaser of it, when he came to enquire of him: and therefore decreed Sir George to confirm the annuity to Hobbs. But as to the case between Sir George and his younger brother, that might admit of another consideration, being it was in proof in the cause, that the younger brother all along was knowing of this settle- ment, and therefore possibly he should not have taken advantage of drawing in a stranger to purchase his title: but the cause between them not being ready for hearing, was left to come on, as it could, by the course of the court.' HUNSDEN V. CHEYNEY. In Chancery, before the Lords Commissioners, 1690. [2 Vernon 150.] The mother to whom a term was limited in tail, stands by at a treaty of a marriage, intended to be had betwixt her son and the plaintiff's mother, and hears her son upon that marriage declare, that the term was to come to him after the death of his mother, and is a witness to the ■deed, whereby the son took upon him to settle the reversion of the term expectant on his mother's decease, on the issue of that marriage, and did not mention or insist she had more than an estate for life therein: the bill was brought by the son of that marriage, complain- ing that his grandmother, notwithstanding the premises, gave out she was tenant in tail of the term, and could dispose of the term at her pleasure, and threatened to alien it, and prayed the benefit of the mar- riage-settlement, and that the defendant might be compelled to make it good, as to the reversion of the term after her decease. ^In Storrs v. Barker, 1822, 6 Johns Ch. 166, 170, the learned Chancellor Kent says, that Dyer v. Dyer, 2 Ch. Cas. 108, is the earliest case on this point. The principal case arose about the same time. In referring to the latter, the Chancellor says: '"The facts in this case are so exceedingly analogous to those in Dyer v. Dyer, that one is strongly induced to think it must be the same, under different names, and which, as we have seen, had been directed a short time before, to stand over. Be this as it may, it appears that Lord Chancellor Nottingham gave no decision on the question, whether ignorance of a man's legal right will protect him against the consequences of encouraging others to deal with his property as their own. The first authoritative decision on this point was made by Lord Keeper North, who succeeded to the great seal in January, 1683, as Lord Nottingham's successor." See also in Tilton v. Nelson, 1857, 27 Barb. 595; Smith v. Cramer, 1874, 39 Iowa 413; and note in 10 Am. Dec. 328-329. 556 DEAFER & AL. v. BORLACE, IVE & AL. [part i. And though it was insisted on for the defendant, that she was not guihy of any fraud or ill practice, but was ignorant of her title, and knew not that she, as being tenant in tail of a term, might dispose of it, and was no party to the marriage agreement, or concerned in it, and that it might rather be presumed, that she was imposed upon by her son and made to believe that she had but an estate for life, when she had in truth the ownership of the whole term in her. Yet the court decreed it for the plaintiff. And as a like case cited the case of Dr. Amyas, who stood by and suffered a purchaser to go on without disclosing of his title, and the case between Charles Clare and the Earl of Bedford, who only witnessed a deed, and told the money lent at his master's chamber, being his clerk, and for that alone had his own security postponed.' DRAPER & AL. v. BORLACE, IVE & AL. In Chancery, 1699. [2 Vernon 370.] Draper. Naylor and Hill having lent Borlace £8,000, Naylor £3,000, Draper £3,000 and Hill £2,000 on a mortgage in fee of his manor of Treludro, and on a statute of £1 6,000 penalty, as a farther security ; the said Hill being a counsellor of Lincoln's-Inn, was afterwards advised with by Mr. Ive, in lending £2,000 to Borlace on a mortgage of the manor of Gargoll, being a lease for three lives held of the Bishop of Exeter ; Mr. Hill encouraged Ive's lending of the money, drew the mort- gage, and therein was a covenant that the estate was free from incum- brances, making no mention of the statute. Treludro being supposed to be deficient, the question was, whether Hill should be admitted to take advantage of the statute, to lessen Ive's security upon Gargoll. Per Cur. If he who only conceals his incumbrance shall be postponed, much more ought Mr. Hill, who was intrusted as counsel by the mortga- gee, and encouraged the lending of the money, and drew the deed with covenant that the estate was free from incumbrances, and decreed that Ive should be satisfied his £2,000 out of Gargoll before Hill should charge the same with his statute. ' Vido TTobhs v. Norton, anto 1 vol. ISfi; Mocntta v. Murgatroyd, 1 P. Wms. 394, and cases cited in note ( 1 ) there. — Reporter's Note. CHAP, v.] HUNING V. FERRERS HUNING V. FERRERS. In the Court op Chancery, 1712. [Gilhert's Equity Reports 85.'] The Plaintiff having a lease of certain Mills for 12 Years, which were near expired, the Lessor, upon his Marriage, makes a Settlement of those Mills to the Use of himself for Life, then to the first and other Sons of that Marriage in Tail Male, Remainder to his own right Heirs; after- wards the Plaintiff takes a new Lease of these Mills from the Father for 30 Years, and lays 28001. in new Building, and improving them. The Defendant was the eldest Son of the Issue Male of the Lessor, and during the Time the Plaintiff was making the Improvements, went to his Father, and told him, he had not Power to make any such Lease ; that after his Death, the Estate would be his, but never acquainted the Plaintiff with that, or of the Settlement made on his Father's Marriage; but on the contrary, writ to the Plaintiff to take Care to keep one of his Mills in particular in Repair ; then the Father dies, and the Son recovers in Ejectment against the Lessee, who thereupon brought this Bill to be quieted in the Possession of the Mills, during the Residue of his Lease, for that the Defendant was fully acquainted with the Circum- stances of this Lease, and knew his Father had not Power to make it, and yet never forbid or cautioned the Plaintiff' from going on with the Repairs, but on the contrary, stood by, and encouraged him in the Pro- ceeding therein ; and so the Plaintiff had a Decree to hold, during the Residue of his Term; for though the Defendant was not Privy to the making of this Lease, but that was only the Fraud of the Father, yet he being to have the Estate after his Father's Death, and taking Notice thereof to his Father, and that he had not such Power to make any such Lease, and yet suffering the Plaintiff to go in the Repairs thereof, with a Design to reap the whole Benefit thereof when his Father was dead, was such a Fraud and Practice in him,* as ought to be discountenanced in this Court. For Qui tacit consentire videtur; and Qui potest and debet vetare juhet. And it was decreed, that the Plaintiff should enjoy, during the Residue of his Lease. See 2 Lev. 152. Edlin v. Battaley in Chancery." ^ S. C. in 1 Eq. Cas. Abr. 356, is reported as Harming v. Ferrers. ^ For a case similarly circumstanced see Wendell r. Van Rensselaer, 1S15. 1 Johns. Cli. 344, in which Chancellor Kent discussed the question in the light of reason and authority. See the admirable case of Storrs v. Barker, 1822, G Johns. Ch. 166, in which the same learned Chancellor held, citing the authorities, that a person having the legal title, who acquiesces in the sale of the land by another claiming or having color of title to it, is estopped from asserting his title against a purchaser; especially if he has advised and encouraged the parties to such, sale to deal with each other. 55S TEASDALE v. TEASDALE [part i. TEASDALE v. TEASDALE. In Chancery, before Lord Chancellor King, 1726. \_Seleci Cases in Chancery 59.] A son who was only tenant for life, tho' by the father looked on to be tenant in fee, makes a settlement on his intended wife for her jointure, (in which was a covenant), with the knowledge and consent of his father, who was a witness to the deed; he saluted and wished the intended bride joy. The marriage was had; the son dies, and makes his wife executrix, leaving a personal estate of the value of £3,000. The father, after the decease of the son, discovers that the son was only tenant for life, and that the fee was in himself; on which title he had verdict, and judgment at law. The wife of the son brings bill to be relieved. For the plaintiff it was said, that a multitude of cases have been ad- judged, that where a party is privy to the transaction, he shall take no advantage of it; for it is a fraud, and would be doing an innocent person an injury. 1 Vern. 136. Hobbs v. Norton; and in Lord Macclesfield's time. Watt v. Creswell, a purchase relieved against a mortgagee who ap- peared to be privy to the purchase, tho' he was an infant. Econtra it was insisted, that this case was very different from the cases cited; for there they appear to have been cognisant of their titles, and concealed them, but here he did not know of his title, and therefore can- not be said to conceal it; and further in this case it appears that the father had another estate, which he knew he had in fee, for the settling of which he had an adequate consideration; so extremely iDlain he would have so done in respect of this, had he known his own title. Lord Chancellor : I shall make no difference, whether he knew of his title or not at that time, considering the near relation of father and son; it is plain, it was thought the son had the fee ; and had it been known it was in the father, it would have been insisted on that he should have joined, else the marriage would not have been had; as he knew of the settlement, he shall not take advantage against it. Then it was insisted, that she should be obliged to have recourse to the covenant against the personal estate; and that it would be very hard to make a person suffer for ignorance of his title, when she may have ample satisfaction against the personal estate; whereby equal justice will be done, and she will have the fruit of her agreement. But the Chancellor said he would compleat her jointure, for that was what was intended to be had, and would not oblige her to have recourse to the covenant. CHAP, v.] BUKKOWES v. LOCK 559 N. B. By the settlement the husband was made tenant for life, and the wife tenant in tail, which the court would not decree, but ordered an usual jointure to be made on her; viz., an estate for life, impeachable of waste.* BUREOWES V. LOCK. In Chancery, 1805. [10 Vesey 470.] Edward Cartwright, being entitled under a Will to the ninth part of the residue of the testator's personal estate, the whole of which had been distributed, except an outstanding debt, and being pressed by the Plain- tiff for a debt due to him in his trade, as a baker, in consideration of 1321. executed an assignment to the Plaintiff of his share of what re- mained due on accotmt of the residue, amounting to 2881. The expence of the transaction, amounting to 101., was also paid by the Plaintiff. Previously to this assignment the Plaintiff consulted Lock, the trustee of the fund; who represented Cartwright as being entitled to the full sum of 2881.; though he had ten years before created an incumbrance to the extent of a tenth part of the fund by an assignment to his brother. Under these circumstances the bill was filed against Cartwright, and Lock, who admitted notice of the prior incumbrance, when he made the representation to the Plaintiff; alleging as an excuse, that he forgot the circumstance. ^In Tongne's Lessee v. Nutwell, 1861, 17 Md. 212, 230, the court said: " It is insisted that, ' when one stands by and sees another laying out money and making large investments upon property, to which he or she has some claim or title, and does not give notice of it, he cannot afterwards, in equity and good conscience, set up such claim or title.' This language is quoted from Chief Justice Shaw, in the case of Gray v. Bartlett, 20 Pick. Rep. 103, where he further says, 'We think this is a very just and well settled principle when well understood and properly applied. The principle insisted on requires some qualifications, and can only be held to apply against one who claims under some trust, lien or other right, not equally open and ap- parent to the parties, and in favor of one who would be deceived or misled by such want of notice. But where the act of one is an encroachment on the soil or rights of another, an acknowledged tort, equally well known or eqiially open to the notice of both parties, it gives no right until it has continued for such length of time, without interruption, as to found the presumption of a grant, or give effect to the limitation of the right of action for the disturbance, as determined by the common law or by statute.' "We regard this a soimd illustration of an esioppeHw pais, and are sustained in the adoption of it by this court in the case of Casey's Lessee v. Inloes, et al., 1 Gill. 502, where the^ case in 20 Pickering is quoted with approbation." 560 BUKEOWES v. LOCK [part i. The Master of the Rolls [Sir William Grant/] The only remaining question is that with respect to the trustee. It is objected on his part, that this is a demand for damages : also, that this was not a wilful mis- representation. As to the first point the demand is properly made in equity; and the Lord Chancellor in Evans v. Bicknell, Ante. Vol. 6, 174, declared that the case of Pasley v. Freeman, 3 Term Rep. 51, and all others of that class were more fit for a Court of Equity than a Court of Law : but his Lordship was clearly of opinion, that at least there is a concurrent jurisdiction; and says, "It has occurred to me, that that case upon the principles of many decisions in this Court might have been maintained here; for it is a very old head of equity; that if a representation is made to another per- son, going to deal in a matter of interest upon the faith of that repre- sentation, the former shall make that representation good, if he knows it to be false." In this case the Plaintiff was going to deal with Cartwright upon a matter of interest; and applied to the person, best qualified to give information, the trustee, to know, what Cartwright was entitled to; who told the Plaintiff expressly, that Cartwright was entitled to 2881.; and had an undoubted right to make an assignment to that extent; knowing, that he had not a right to make such assignment; having previously agreed to give another person 101. per cent, out of the fund. There is therefore a concurrence of all the circumstances, which the Lord Chan- cellor thinks requisite to raise the equity. The excuse alleged by the trustee is, that, though he had received information of the fact, he did not at that time recollect it. But what can the Plaintiff do to make out a case of this kind, but shew, 1st, that the fact, as represented, is false; 2dly, that the person, making the representation, had a knowledge of a fact, contrary to it, Ante Vol. 7, 182-183. The Plaintiff cannot dive into the secret recesses of his heart : so as to know, whether he did or did not recollect the fact; and it is no excuse to say, he did not recollect it. At least it was gross negligence to take upon him to aver positively and dis- tinctly, that Cartwright was entitled to the whole fund, without giving himself the trouble to recollect, whether the fact was so or not; without thinking upon the subject. This is a much stronger case than Hobbs V. Norton, 1 Vern. 136, and the negligence infinitely greater. Lock therefore must be answerable, in case Cartwright cannot an- swer the demand; and must first pay over to the Plaintiff the residue of the trust fund, deducting the 101. per cent.; then Cartwright must make up the deficiency; and, if he fails, Lock must make it good. But un on Sir (Jioorcje Jessel, in Diet, of Nat'l Biography. CHAP, v.] SEELEY v. JAGO 635 personal representatives have no equity to have it converted, but it must go to the heirs or devisees of the next of kin according as they died in- testate or testate. The decision of the Master of the Rolls must be affirmed.' SEELEY V. JAGO. In Chancery, before Lord Chancellor Cowper, 1717, [1 Peere Williams, 389.] One devised that 10001. should be laid out in a purchase of lands in fee, to be settled upon A. B. and C. and their heirs, equally to he divided; A. dies leaving an infant heir; and B. and C. together vpith the infant heir, bring a bill for this 10001. Lord Chancellor. The money being directed to be laid out in lands for A. B. and C. equally, (which makes them tenants in common,) and B. and C. electing to have their two thirds in money, let it be paid to them; for it is in vain to lay out this money in land for B. and C. when the next moment they may turn it into money, and equity, like nature, will do nothing in vain." ^ "Nearly all of the testator's property consisted of land, and as, by the terms of the will, the part of this land so devised was to be sold, and the proceeds reinvested in other land, the bequest, notwithstanding this double conversion, continued to be real estate." Lane v. Eaton, 1897, 69 Minn. 141, 143. "In order to become personal estate for the purposes of adminstration the money must have belonged to the decedent as personalty. Whatever once descended to her heirs cannot be divested from them, except for the purpose of liquidating some superior claim. . . . The conversion of the land into money was only made for a special purpose ; and that having been accomplished, the surplus, by a fiction of equity, is reconverted into land. "The truth of this view can be easily shown by supposing that the mortgaged property had consisted of separate lots, and no more had been sold on the fore- closure than was necessary to satisfy the mortgage. The unsold residue would then, of course, belong to "Mrs. Dunning's heirs or devisees. Could it possibly have made any difference, if the lots had happened to be sold and a surplus realized?" Per Dwight, J., in Dunning v. Ocean National Bank, 1875, Gl N. Y. 497. There has, however, been some fluctuation in doctrine in New York. See Bogert v. Furman, 1843, 10 Page 496. ^Accord Benson v. Benson, 1710. 1 Peere Williams, 130; Short v. Wood, 1718, 1 Peere Williams, 470; Howell v. Tompkins, 1886, 42 N. J. Eq. 305. 636 BEADISH v. GEE [part i. But as to the share of the infant, that must be brought before the Master, and put out for the benefit of the infant, who, by reason of his infancy, is incapable of making an election. Besides, that such election might, were he to die during his infancy, be prejudiced to his heir.' BEADISH V. GEE. In Chancery, before Lord Chancellor Hardwicke, 1754. [Amhler 229.] Lord Hardwicke, Chancellor. Where a decree is made by consent of counsel, there lies no an appeal or rehearing, though the party did not really give his consent; but his remedy is against his counsel, &c., but if such decree was by fraud and covin, the party may be relieved against it, not by rehearing or appeal, but by original bill. Richmond v. Talli- cur, Floyd r. Mansell. So at law, defendant may plead judgment was by fraud and covin against his testator. In the above cases, the decree itself was pleaded, but the fraud itself was not sufiiciently denied ; but if fraud is denied in the answer, the decree which is impeached may be pleaded to such a bill. * Pomeroy speaks of those who may make an election as follows: "A person absolutely entitled and sui juris. Benson v. Benson, 1 P. Wms. 1.30; Sisson v. Giles, 32 L. J., N. S., Ch., 606; 3 De Gex, J. & S. 614; Prentice V. Janssen, 79 X. Y. 478. "Infants cannot elect, but the court may, for their advantage. See Seeley v. Jago, 1 P. Wms. 389; Carr v. Ellison, 2 Brown. Ch. 56; Van v. Barnett, 19 Ves. 102; Robinson v. Robinson, 19 Beav. 494; In re Harrop, 3 Drew. 726, 734. "Lunatics cannot. Ashby v. Palmer, 1 Mer. 296; In re Wharton, 5 De Gex, M. & G. 33; In re Barker, L. R. 17 Ch. Div. 241. "ilarried Women. — Under the former law they could only elect by means of a fine, or by a consent in open court. Oldham •;;. Hughes, 2 Atk. 452, 453 ; Binford v. Bawden, 1 Ves. 512; 2 Ves. 38; Frank v. Frank, 3 Mylne & Co. 171 ; May V. Roper, 4 Sim. 360; Standering v. Hall, L. R. 11 Ch. Div. 652; Wal- lace V. Greenwood, L. R. 16 Ch. Div. 362. Under the statute 3 and 4 Wm. IV., c. 74, sec. 77, a wife may elect by means of a deed in which her husband join.s, and which is properly acknowledged by her. Briggs v. Chamberlain, 11 Hare 69; Bowyer v. Woodman, L. R. 3 Eq. 313; Tuer v. Turner,, 20 Beav. 560; Forbes v. Adams, 9 Sim. 462. A deed by husband and wife, not so acknowledged, or by either alone, would be insufTiciont. Sisson v. Giles, 32 L. J., N. S., Ch. 606; 3 De Gex, J. & S. 614; Franks v. Bollans, L. R. 3 Ch. 717. In this country a married woman can doubtless elect by means of any instrnmont sniruient to enable her to convey real estate." 3 Pomeroy JMiuity .lurisprudcncc, § 1176 n. (1). CHAP, v.] EARLOM V. SAUNDERS 637 Where money is directed to be turned into land, or vice versa, the per- son entitled to it may elect in which way he will take it, as money or land ; and very slight evidence of his intention by acts done will be suffi- cient; but his Lordship said, he could not admit that parol declaration would, as was intimated by Lord Macclesfield in Edwards v. Earl of Warwicke; and when he has once signified that intention, he is bound by it. In the present case, one tenant in common had consented to a decree for sale of the whole estate, and his Lordship said, he was bound by it; for the other parties were interested in that consent, because their shares of the estates would not sell so well separate as if the whole was sold together ; and his Lordship said, even if he had afterwards petitioned that the land should not be sold, yet the decree would not be varied, and the money arising by the sale would go to his personal representative.' EARLOM t'. SAUNDERS. In Chancery, before Lord Chancellor Hardwicke, 1754. [Amhler 241.] William Powell, by will of 21st October, 1729, devised his lands in Cheame, or elsewhere in Surrey, to trustees and their heirs, to the use of his wife Elizabeth for life, remainder to his first, etc., sons in tail male, remainder to his daughters in tail, remainder to Widdrington and William Powell in fee, as tenants in common. And directed £400 should be raised by his executrix out of his personal estate with all convenient speed after his decease, and paid by her to his trustees, or one of them, who should lay out the same in a purchase of lands, or any other security or securities as they should think proper and convenient ; and directed the lands so to be purchased, and the security or securities on which the £400 should be so laid out, should be made to and settled on the trustees, their heirs and assigns, in trust and to the use of his wife for life, and after * "Where the law has impressed real property and uses upon moneys, it is necessary, in order to put an end to that impression, that it be sho\vn either that the party entitled to the property and havinc; a right to elect in what shape he will take it, has declared that election or done some act denoting his intention thereto ; or the property must, according to an expression, used in some of the cases at home — that is, the person being the absolute owner must have in himself the entire qualification of heir and executor. - He must not only have the just in re but no other person must have an outstanding jus ad rem. In that case if he makes no declaration of his intention in re- lation to it, it shall go according to the quality in which it was left at his death." Per Masqn, J., in Foreman v. Foreman, 1849, 7 Barb. 215, 220. 638 EAELOM v. SAUNDEES [part i. to such uses, and under such provisions, conditions, and limitations as his lands before devised were limited. There was no issue of the testator. After hia death, Widdrington died ; and after him, the testator's widow died. William Powell also died afterwards, two days under the age of 21 years, having by will given all his estate in general words to plaintiff. Question. Whether the £400 is to be considered as money, not having been laid out in land by the trustees, who, it was contended, had an election- to lay it out in purchase of land or on security, and by not having invested it in land, had determined that election, and therefore it was well devised by the will of William as money ? Lord Hardwicke, Chancellor, after hearing only one counsel for de- fendant, gave his opinion, in which he said he had no doubt William Powell, who became entitled to the remainder in fee, had a proper election to consider it as mone;^ or land, and had he been at age, might have done some act to determine it either way; but as he died under 21, he could not do such act, nor make his election. This court never admits trustees to have such election to change the rights, unless it is expressly given them. Here the money is to be laid out in land or securities, for such uses as the land is before settled. If it is laid out in securities (which are personal), all the limitations might not take place; for if there was a son born he would take the whole money, as being tenant in tail, and the subsequent limitations would be defeated. The only way to make the clause consistent is, that the money be laid out on securities till lands are purchased, and the interest and dividends, in the meantime, to go to such persons as would be entitled to the land.* ^ "The executors cannot sell by attorney. The power given to them by the will was a personal trust and confidence, to be exercised by them jointly, according to their best judgment, under the circumstances contemplated by the will. One executor in this case cannot commit his judgment and dis- cretion to the other, any more than to a stranger; for delegatus non potest delegari. The testator intended that his representatives should have the benefit of the judgment of each of the executors applied to the given case so long as both of them were alive. The agreement to sell was not valid, being made by one executor without the personal assent and act of the other. The power was not capable of transmission or delegation from one executor to the other, and the rule of law and equity on this point is perfectly well settled. 9 Co. 75, Comb's case; Ingram v. Ingram, 2 Atk. 88; Sir Thomas Clarke in Alexander v. Alexander, 2 Ves. 643 ; Lord Hardwtcke in Attorney- General V. Scott, 1 Ves. 417: Lord Redesoai.e in 2 Sch. & Lef. 330; Hawkins v. Kemp. 3 East 410; Sudgen on Powers, 2d edit., 167." Per Chancellor Kent, in Berger v. Duff, 1820, 4 Jolins. Ch. 368, 369. CHAP, v.] PKENTICE V. JANSSEN 63» PRENTICE t;. JANSSEN. The Court of Appeals of New York, 1880. [79 N. Y. 478.] Miller, J. The complainant in this action demands an equitable parti- tion or sale of several pieces of land therein described, upon a portion of which was erected a hotel, called the Pavilion Hotel, together with the personal property, consisting of furniture in said hotel, and that an account be taken of the disbursements and expenditures made by the plaintiff, Augustus Prentice, for the benefit of and as additions to said property, end that the share of the defendant, Mary Ann Janssen, be charged upon the same and deducted from her portion of the proceeds of the sale of the property. The land belonged to Francis Blancard at the time of his decease in 1868, and the title is derived under the provisions of his last will and testament. The plaintiff, Augustus Prentice, holds three-fourths, by conveyances from the residuary legatees or their repre- sentatives, and the defendant, Mary Ann Janssen, the remaining one- fourth. The defendant last named has joined with the plaintiff in mak- ing leases of the property since 1873 ; large sums have been expended in making improvements by the owners, and the rents have been received and applied in part, if not entirely for that purpose. The residuary clause in the will of Francis Blanchard devised and be- queathed his property to five of his children, among whom were Francis H. Blancard and the defendant, Mary Ann Janssen. It also authorized Francis H. Blancard to carry on the hotel business in the Pavilion Hotel, for the term of five years, if he so desired, and the executors were em- powered and directed, after the testator's death, to sell and convert intO' money all the real and personal property of which he should be seized or possessed, including the hotel property, after the right of occupancy of his son had ceased, as they should deem advisable, and divide the pro- ceeds equally among the residuary legatees. The son, Francis H., died before the testator, and no action was ever taken by the executors to sell the property, and it remained undisposed of, and was used and regarded by the owners as real estate to which they had title. Only one of the executors, the defendant, Gerhard Janssen, was living at the time of the commencement of this action, and he is made a party, as the husband of the defendant, Mary Ann Janssen, and does not by his answer claim any rights as executor or that he is a proper party as such. The answers admitted that plaintiff and the defendant, Mrs. Janssen, ovsTied the prop- erty as tenants in common. We think that under the provision cited from the testator's will, the executors who were donees of a power took no estate in the Idnds as trustees, but merely a power in trust to be ex- 640 PRENTICE v. JANSSEN [part i. ecuted for the purposes of distribution, according to the will, which was liable to be defeated by a reconversion of the property, which was made personal by the will, into real estate. The testator, by the authority and direction to his executors to sell the real estate, and, being thus converted, the residuary legatees were en- titled to take the same as such and had a right at their election to recon- vert into real estate. No distinct and positive act is required for such a purpose, and the rule applicable to such a case is that "in the recon- version of real estate, a slight expression of intention will likewise be con- sidered sufficient to demonstrate an election on the part of those abso- lutely entitled." Leigh & Dalzell on Eq. Conversion, 5th vol. of Law Library, m. p., 168; Mutlow v. Bigg, L. R., 1 Chan. Div., 385; 1 Jarman on Wills, 523, et seq. The real estate was not disposed of by the executors under the provisions contained in the will, and as there was no obstacle to prevent a reconversion of the same by the parties in interest from personal into real estate. This they elected to do by positive and unequivocal acts. Three of the four residuary interests were conveyed to the plaintiff, Augustus Prentice, and the defendant, Mary Ann Janssen, retained the other one-fourth. The whole has since been enjoyed, possessed and treated the same as real estate. This was done by the acquiescence of the executors and all the parties in in- terest, not only by possession, but by acts showing their intention beyond any question. In Story's Equity Jurisprudence, § 793, it is said that if land is directed to be converted into money merely, the party entitled to the beneficial interest may, if he elects so to do, prevent any conver- sion of the property and hold it as it is. This has been done by the residuary legatees here; and as the lands were not sold and disposed of by the executors, and no diversion made, the rule applies that the person entitled to the money, being of lawful age, can elect to take the land, if the rights of others will not be affected by such election. Hetzel v. Bar- ter, G9 N. Y., 1, 11. No rights of other parties were injured by the election to reconvert; and as three-fourths of the residuary interests had been sold and conveyed to the plaintiff by those who were entitled to the proceeds of a sale, if one had been made under the power, and the owner of the remaining one-fourth had assented to the reconversion, by exer- cising acts of ownership, and the purpose of the power had become unat- tainable, the power to sell became extinguished, and the plaintiff and defendant already named became owners as tenants in common. CHAP, v.] DEETH V. HALE 641 DEETH V. HALE. In Chancery in Ireland, before Lord Chancellor Manners, 1809. [2 Molloy, 317.] Testator had ordered lands to be sold, and the produce divided amongst certain persons of whom plaintiff is one. The other persons entitled wished the property as it was to be divided, but plaintiff filed this bill for a sale. Lord Chancellor Manners : The testator desired the land to be sold and the money shared, and though the others oppose it, the court must order it to be done, and the costs of all paid out of the fund.' 1 Accord: Halloway v. Radcliffe, 1857, 23 Beaven, 165; Wayne v. Fonts, 1901, 108 Tenn. 145; Fletcher v. Ashburner, 1779, 1 Bro. C. C. 497; McDonald v. O'Hara, 1895, 144 N. Y. 566; Bank of Ukiah v. Rice, 1904, 143 Cal. 265; McWilliams v. Gough, 1903, 116 Wis. 576; but see Reed v. Underbill, 1851, 12 Barb. 113; where it was held that one of the beneficiaries could pass his interest hy a conveyance. "Sale of land by order of the court. Where land is thus sold, and there Is any surplus of money after satisfying the purpose for which the sale was made, such surplus is always regarded and treated as real estate. Cooke V. Dealey, 22 Beav. 196; Jermy v. Preston, 13 Sim. 356; but see Steed V. Preece, L. R. 18 Eq. 192, per Sir George Jessel. Infants' estates: In general a court of equity will not direct a conversion of one kind of property belonging to an infant into another kind. Ex parte Phillips, 19 Ves. 118, 122. As to the proceeds of timber ordered to be cut on an infant's estate, see Dyer v. Dyer, 34 Beav. 504; Field v. Bro\ATi, 27 Beav. 90. If the infant is owner in fee, the proceeds are realty; if he is a life tenant, they are personalty. Lunatics' estates: The court will not, without sufficient cause, change the nature of a lunatic's property. Oxenden v. Lord Compton, 2 Ves. 69, 72 ; In re Badcock, 4 Mylne & C. 440. If lunatics' lands are sold by order of court, the surplus of the money always remains real estate. In re Wharton, 5 De Gex, M. & G. 33; In re Sloper, cited 22 Beav. 198; In re Barker, L. R. 17, Ch. Div. 241; and see Smith v. Bayright, 34 N. J. Eq. 424. The same rule prevails in sales ordered for purpose of partition. Foster v. Foster, L. R. 1 Ch. Div. 588; Mildmay v. Quicke, L. R. 6 Ch. Div. 553; Mordaunt v. Benwell, L. R. 19, Ch. Div. 302." 3 Pomeroy's Equity Juris- prudence, § 1167, n. (2). 642 WATSON v. HUNTER & McCLAY [part ii. PART II. REMEDIES. CHAPTER I. INJUNCTIONS. Section 1. Waste. JESUS COLLEGE v. BLOOME. In Chancery, before Lord Chancellor Hardwicke, 1745. [3 Atkyns 262.] ' [Printed ante page 115.] WATSON V. HUNTER & McCLAY. In the Court of Chancery of New York, 1821. [5 Johnson's Chancery 169.] The bill stated, that the plaintiff had a deed in fee for the premises mentioned, under a declaration of trust, in favor of Samuel S. Haight, to be executed on payment of 1,668 dollars and 36 cents : to secure which payment, the fee of the land was vested in the plaintiff. That the de- fendants were in possession, under a lease for four years ; that the princi- pal value of the land, as a security, consisted in the pine timber growing^ thereon. That the defendants were committing great waste in the timber, and had already cut down large quantities of it, and were sawing it, at their mills, for sale. That the premises were a slender security for the debt due to the plaintiff, charged thereon. Prayer for an injunction, re- straining the defendants from cutting down any more timber, or from, removing that already cut down and not sawed, and that which was con- verted into boards or plank ; and for general relief. Ward, for the motion. The Chancellor [Kent.] Injunctions to the extent prayed for may have been granted ; but as I am not satisfied as to the propriety of such extensive and summary interference, I have been led to look into the ' For tlif rotiicdy nt law and equity in matters of waste, see Jefferson v. Bisliop of Durham, 1707, 1 Bos. & P. 105, per Eyre, C.J. ; Moore v. Town- shend, IHfiO, 4 Vroom, N. J., 284, in which Mr. Justice Depue discussed the common law of waste with learning and accuracy; Duvall v. Waters, 1827, 1 Bland's C'hancery, ."lOO, in which the learned Chancellor outlined the juris- diction and remedies at common law and equity and digested the authorities. Accord Iligginbotham v. Hawkins, 1870, L. R. 7 Ch. App. 676. CHAP. I.] WATSON V. HUNTER & McCLAY 643 course of the English authorities and practice on the point. After timber is cut, it ceases to be part of the realty, and is converted into I)orsonal property, and trover will lie for it. The question is, whether this Court ought to interfere in the first instance, to control the dispo- sition of that personal property; and that, too, without any special or extraordinary necessity stated for such interference. The practice of granting injunctions, in cases of waste, is to prevent or stay the future conunission of waste; and the remedy for waste already committed, is merely incidental to the jurisdiction in the other case, assumed to prevent multiplicity of suits, and to save the party the necessity of resorting to trover at law. Thus, in the case of Jesus College V. Bloom, 3 Atk. 262, Ambl. 54, a bill was filed for an account and satisfaction for waste in cutting down trees, and no injunction was prayed for, and the tenant's estate had been assigned and determined. Lord Hardwicke held, that the bill was improper, and would not lie merely for satisfaction for timber cut down, and that an action of trover was the remedy. Where the bill was for an injunction to prevent waste, and for waste aiready committed, the Court, to prevent a double suit, would award an injunction to prevent future waste, and decree an account and satisfaction for what was past. The ground for coming into Chancery, was to stay waste, and not for satisfaction for the damages, as the commission of waste was a tort, and the remedy lay at law. But to prevent multiplicity of suits, the Court, on bills for injunc- tion to stay waste, and where waste had already been committed, would make a complete decree, and give the injured party a satisfaction for what had been done, and not put him to another action at law. The bill, in that case, was consequently dismissed. In the subsequent case of Smith v. Cooke, 3 Atk. 381, Lord Hardwicke observed, that if the estate of the lessee was determined, and he had quit, a party could not come into equity, merely for an account of timber cut wrongfully; but where he continued in possession, and in a condition to commit more waste, the party might come into equity to stay future waste, and also be entitled to an account for the waste committed. So, again, in the case of Lee v. Alston, 1 Vesey, jun. 78, the same doctrine was de- clared by Lord Thurlow. A bill was filed by a remainder man in fee, against a tenant for life, for an account of timber cut, and for an in- junction. The answer admitted the cutting of the timber wrongfully, as charged, and an account was decreed. It was observed, that the plaintiff, on the discovery by the answer, might have resorted to trover at law, but he was not obliged to do so, and might have an account under the admission in the answer. The Chancellor referred to the case of Whitfield v. Bewit, 2 P. Wms. 240, which was a bill for an in- junction to stay waste, and for an account of timber cut, and in which it seemed to be held that the right to the timber cut might be pursued in Chancery, as well as by trover at law. The same doctrine was declared by Lord Hardwicke, in Garth v. 644 WATSON v, HUNTER & McCLAY [part ii. Cotton, 1 Vesey, 528, and that the decree for an account of the waste already committed was " an incident " to the injunction to stay waste. It would seem, then, to be a stretch of jurisdiction to apply the injunc- tion to this incidental remedy, and to stay the use or disposition of the chattel. This would be enlarging the substituted remedy in this Court much beyond the remedy at law; and if it had been the established Eng- lish practice, we should not have been without the most clear and ex- plicit cases in proof of it. The recovery in this Court is not the timber itself, in specie, but damages for the value of it; and why should the personal chattel be bound by injunction in this ease, more than in any other case, where the remedy is for a tort sounding in damages? This Court will stay the commission of waste, or the transfer of negotiable paper, in certain cases, in order to prevent irreparable mischief; but the only mischief that can arise in the present case, as to the timber already cut and drawn to the mills of the defendants, is the possible inability of the party to respond in damages. That is a danger equally applicable to all other ordinary demands, and it is not an impending and special mischief, which will justify this extraorditiary preventive remedy by injunction. If the injunction could be ordinarily applied to waste, already committed, I apprehend we should very rarely hear of a special action on the case, in the nature of waste, in the courts of common law. In the case of the Bishop of London v. Webb, 1 P. Wms. 527, an in- junction was called for against a lessee for years, to prevent digging the ground for brick, as it was destroying the field and carrying away the soil. The Lord Chancellor said, "Let the defendant carry off the brick he has dug, but be enjoined from further digging." In Packington's Case, 3 Atk. 213, the bill stated, that the defendant had cut down a great number of trees, and had threatened to cut down and destroy them all, but the injunction only went to restrain him "from cutting down timber trees growing." The only case I have met with, applicable to the very point, is a very loose note of an anonymous case of 1 Vesey, jun. 93, in which the solici- tor-general moved for an order to prevent the removal of timber wrong- fully cut down. In what stage of the cause, or upon what state of plead- ings and proofs, this motion was made, does not appear. Lord Thurlow is said to have observed, "I have no doubt about the interference of this Court to prevent waste. The only difficulty I have is, as to what shall be done with the timber cut. Trover might be brought for it; but as the Register says many orders of this kind have been made, take the order." Such a case is not a sufficient authority to extend the injunction to the timber already cut. There must be a very special case made out to authorize me to go so far, and such cases may bo supposed. A lease, for instance, may have been fraudulently procured by an insolvent person, for the very purpose of plundering the timber under the shelter of it. Perhaps, in that and like cases, where the mischief would be irreparable, it might be necessary to interfere in this extraordinary way, and prevent CHAP. 1.] WATSON V. HUNTER & McCLAY 645 the removal of the timber. I do not mean to be understood to say that the Court will never interfere, but that it ought not to be done in ordinary cases like the present. I shall accordingly confine the injunction to the timber standing or growing at the time of the service of the process. Order accordingly.^ A tenant for life, without impeachment of waste, is clearly not com- pellable to cut timber in such way as a tenant in fee would think most advantageous, but is entitled to cut down anything that is timber. This motion requires an affidavit pledging deponent, that the trees about to be cut are not fit for timber. It is settled that a tree which a tenant in fee, a(;ting in a husband-like manner, would not cut, may be cut by a tenant for life, unimpeachable of waste, provided that it is fit for the purpose of timber. A tenant for life unimpeachable of waste might cut down all these trees, without question, at law; and to subject him, in this court, to the rules which a tenant in fee might observe, for the purpose of husband-like cultivation, would deprive him of almost all his legal rights. Per Lord Eldon, in Smythe v. Smythe (1818) 2 Swanst. 251. At law a tenant for life without impeachment of waste has the absolute power and dominion over the timber upon the estate, but this court con- trols him in the exercise of that power, and it does so, as I apprehend, upon this ground, that it will not permit any unconscientious use to be made of a legal power. It regards such an unconscientious use of the legal power as an abuse, and not as a use of it. When, therefore, the court is called upon to interfere in cases of this description, it is boiuid, I think, in the first place, to consider whether there are any special cir- cumstances to affect the conscience of the tenant for life, for in the ab- sence of special circumstances it cannot be unconscientious in him to avail himself of the power which the testator has vested in him. We have then to consider what are the special circumstances which the Court will regard as affecting the conscience of a tenant for life, and I apprehend that what is particularly to be regarded is the intention of the settlor or devisor. If by his disposition or by his acts he has indicated an in- tention that there should be a continuous enjoyment in succession of that which he has himself enjoyed, in the state in which he has himself en- joyed it, it must surely be against conscience that a tenant for life, claim- ing under his disposition, should by the exercise of a legal power, defeat that intention. Turner, L. J., in Micklethwait v. Micklethwait, (1857) 1 De G. & J. 504, 524.=^ ^ "For past injuries or trespasses, the only remedy is an action at law for compensation in damages. Injunction furnishes no relief. It is resorted to and applied only when an injury to real or personal property is threatened, and to prevent the doing of a legal wrong when an adequate remedy cannot be afforded by an action for damages." Per Wagner, J., in Owen i^. Ford, 1872, 49 Mo. 436.^ - See language of Jessel, M.R., in Baker v. Sebright, 1879, L. R. 13 Ch. Div. 179. 646 LOKD BERNAED'S CASE [part ir. PETETSON V. SHELBY. In Chancery, 1577. [Choyce Cases in Chancery 117.] The plaintiff hath a lease in reversion granted unto him of certain lands in the defendant's occupation by lease almost expired within a year, and the plaintiff hath Wood and Timber granted to him, and the defendant having no authority to sell the said woods, doth cut down the same and make waste. Therefore a siibpoena awarded against him to show cause why an injunction should not be granted against him. KING V. BLUNDAVILE. In Chancery, 1608-09. iTothill 83.] The defendant having an estate for life without impeachment of waste, was ordered not to do waste both upon woods and houses. WILLIAMS V. DAY. In Chancery, before Lord Chancellor Nottingham, 1680. [2 Chancery CasesJ] The Lord Chancellor declared, that he would stop pulling down Houses, or Defacing a Seat by Tenant after Possibility of Issue extinct, or by Tenant for Life, who was dispunishable of Waste by express Grant, or by Trust. LORD BERNARD'S CASE. In Chancery, before Lord Chancellor Cowper, 1716. \ Precedents in Chancery 454.] Lord Bernard was tenant for life, without impeachment of waste; and tliis bill was brought against him by those in remainder, for an in- juiictioii to stay his committing of waste; and by the proofs in the cause it af)f)oared, that he had almost totally defaced the mansion house, by pulling down great part, and was going on entirely to ruin it; where- CHAP. I.] ROLT V. LORD SOMERVILLE 647 upon the court not only granted an injunction against him, to stay his committing further waste, but also ordered a commission to issue to fix commissioners, whereof he to have notice, and to appoint three on his part; or, in default thereof, the six commissioners to be named ex parte, to take a view, and to make a report, of the waste committed; and that he should be obliged to rebuild, and put it in the same plight and condition it was at the time of his entry thereon : and it was said, that the like injunctions had frequently been granted in this court; and that the clauses of without impeacliment of waste never were extended to allow the very destruction of the estate itself, but only to excuse from permissive waste; and therefore such a clause would not give leave to sell and cut down the trees which were for the ornament or shelter of a house, much less to destroy or demolish the house ; and so it was ruled in my Lord Nottingham's time, 2 Chan, Cases, 32.' ROLT V. LORD SOMERVILLE. In Chancery^ before Lord Chancellor Hardvvicke, 1737. [2 Equity Cases Abridged, 759.] The case in effect was thus : A very considerable real estate was limited to Mrs. Rolt (who afterwards married the defendant the Lord Somerville) for life, without impeachment of waste, remainder to the plaintiff Rolt for life, without impeachment of waste, with several remainders over. The defendant the Lord Somerville, to make the most of this estate dur- ing the life of his wife, pulled down several houses and out-buildings upon the estate, and sold the same, and also took up lead water pipes that were laid for the conveyance of water to the capital messuage, and dis- 'See Bishop of London v. Web, 1718, 1 P. Wms. 527; Anonymous, 1729, Mosely, 237; Peirs v. Peirs, 1750, 1 Ves. Sr. 522. In Morris v. Morris, 1885, .3 De Gex & Jones, 323, a tenant for life built a new manor house out of the materials from an old house which he had torn down in a suit brought by the remainderman for an account on the ground of waste, Lord Jiistice Turner said, at page 328 : "I do not rest my decision in this case upon the fact of the estate having been improved by the building of the new mansion house and the pulling down of the old one; for I am not at all satisfied that the question of improvement or no improvement is one by which the court ought to be guided. I apprehend that the principle upon which the court proceeds in these cases is, that the tenant for life of an estate is liable to account in equity for profit derived by him from an improper use of his legal powers in committing equitable waste. If, therefore, the materials of this house had been sold, and the deceased tenant for life had received the proceeds, in my opinion this \vould have been a case for an account. But all that can 648 EOLT V. LORD SOMERVILLE [part ii. posed thereof, and he also cut down several groves of trees that were planted for the shelter or ornament of the capital messuage. Upon this a bill was brought by the plaintiff to compel the defendant to account for the money raised by the particulars before mentioned, and to put the estate in the same plight and condition that it was before. To this the defendant demurred, and thereby insisted that this waste was committed by tenant for life without impeachment of waste, and therefore he was not liable to be called to an account for what he had done either in law or equity, and if he was, yet the plaintiff could not call him to an account, because he was not a remainderman of the inheritance. Lord Chancellor Hardwicke. Though an action of waste will not lie at law for what is done to houses, or plantations for ornament or con- venience, by tenant for life without impeachment of waste, yet this court hath set up a superior equity, and will restrain the doing such things on the estate. In Lord Bernard's Case the court restrained him from going on, and ordered the estate to be put in the same condition. In Sir Blun- del Charleton's Case the Master of the Eolls decreed that no trees should be cut down that were for the ornament of the park ; but Lord Chancellor King reversed that, and extended it only to trees that were planted in rows. My only doubt is, as to the trees that have been cut down, for if this bill had been brought before such trees had been cut down as were for the ornament or shelter of the estate, this court would have inter- posed; but here the mischief is done, and it is impossible to restore it to the same conditions as to the plantations, and therefore it can lie in sat- isfaction only ; and I cannot say the plaintiff is entitled to a satisfaction for the timber which is a damage to the inheritance, yet as to the pulling down the houses and buildings, and laying the lead pipes, they may be restored, or put in as good condition again. In the case of my Lord Bernard there were directions for an issue at law to charge his assets with the value of the damages, he not having performed the decree in his lifetime. The demurrer was allowed as to satisfaction on account of the timber, but overruled as to the rest. be said in the present case, as to any benefit that has been derived by the deceased tenant for life, is this, that he enjoyed the use of the materials of the old house during his life, in a diiferent state from that in which they originally existed on the estate. They remained on the estate, but they re- mained as materials attached to a new house, and not to the original house to which they were formerly attached; and I do not find any evidence in the case that there has been any sale of the materials, or any other profit derived by the tenant for life, than by the enjoyment of the materials in an altered state. 1 think that such enjoyment is not the subject of an account of profits, but that the right to such an account arises only where the tenant for life has disposed of the materials and received the j)rofits. I am of opinion, there- fore, that this part of the bill was rightly dismissed." CHAP. I.] PACKINGTON'S CASE 649 PACKINGTON'S CASE. In Chancery, before Lord Chancellor Hardwicke, 1744. [3 Atkyns 215.] Sir Herbert Packington, tenant for life, without impeachment of waste, of an estate at Westwood, in Worcestershire, being out of the kingdom,' his agent was made defendant to a bill brought to stay waste by Mr. Packington, son of Sir Herbert, and first tenant in tail, and has put in an answer. The motion now was, for an injunction to stay Sir Herbert Packing- ton's agent from cutting down trees in the park at Westwood, which are either an ornament or shelter to the mansion house. Lord Chancellor. It might be for the interest of private families if the common law had not given so large a power to tenant for life, without impeachment of waste, vide Payne v. Dor, 1785, 1 Durn. & East, 55, equal to a tenant in fee ; but the common law thought it for the interest of the public, as timber might thereby circulate for shipping and other uses. But this court has restrained their power greatly, in comparison of what it was formerly. The first case came before Lord Cowper, of Vane v. Bernard, 1816, 2 Vern. 738, where the defendant was restrained from pulling down Raby Castle. The court has gone farther, and has restrained such tenant for life from cutting down timber, either for ornament or shelter of the house; and farther still in the case of Charlton v. Charlton, in extending it to the case of a park. There was, indeed, a difference of opinion between Lord Chancellor King, and the Master of the Rolls, but only in part, for Lord King continued the injunction as to trees for ornament, or shelter, but dis- solved it as to straggling trees. It is very proper for the court to preserve trees that are a shelter to the mansion house. In the present case, only three oaks have been cut down, and if there was no intention to commit further waste, it would be material, but thia appears to be but the beginning of waste; for Sir Herbert Packington's ^ The plaintiff alleged, that the defendant, Sir H. Packington, had cut down a great number of trees, and had threatened to cut down and destroy them all ; that Sir H. Packington's agent had agreed for the sale of 2,000 trees, and that in consequence thereof some trees had been actually felled. Note, it does not appear from the allegations of the plaintiff in the present motion, whether the agent had admitted this fact by his answer. Sir H. Packington'a answer had not come in. Reg. Lib. B. 1744, fol. 325. <550 LANSDOWNE v. LANSDOWNE [part ii. letter has been read in 1741 (the purport of this letter does not appear in the Register's book in the place above cited), whilst he was abroad, in which he says, if his son will not join with him in cutting off the intail, he will give orders for cutting down all the ornamental timber trees. The question is, whether these are grounds for an injunction to stay waste ? The first objection is, that these trees grow in a wood, and have arisen naturally, and by accident, and not from planting. But I do not think this will hold, because, whether trees grow natural, or were planted, if they serve as an ornament, or shelter, it amounts to the same thing; and it is very probable the situation of the house was chosen for the sake of cutting ridings and vistas through the woods; and I can mention two of this kind of my own acquaintance, Hamp- stead, a seat of Lord Craven's, and another in Essex. I will restrain the defendant, therefore, from cutting down trees in lines, or avenues, or ridings in the park ; and likewise from cutting down trees that are not of a proper growth to be cut. Upon a suggestion that this might create disputes, as to what were of proper growth, and that very little young timber grows in this park, his Lordship left out the last part of the order, and as to the other granted the injunction.' LANSDOWNE v. LANSDOWNE. In Chancery, before Sir Thomas Plumer, V. C, 1815. [1 Maddoch, 116.] The Vice-Chancellor.' Upon this demurrer, two points are to be considered : 1st. How the case stood as to the deceased Marquis ? 2dly. How the case stands as to his representatives? The late Marquis was tenant for life, without impeachment of waste, and as such had a right at law to cut timber on the estate, and had a property in the trees, but having abused that power by cutting ornamental trees, and trees not ripe for cutting, a court of equity says, he shall not do these things with impunity, but interposes to restrain the legal right; and equity not only restrains him from doing further waste, but directs an account of the waste done, and will not suffer the individual to pocket the produce of the wrong, hut directs the money produced by siich waste to be laid up for the benefit of those who succeed to the estate. Mil C'odin V. CoHhi, 1821, Jacob, 70, Lord Eldon said: The court does not protect timber because it is ornamental, but it protects it, if it was planted for ornament, whether it is or is not ornamental, ^Oiily the <)|)irii(jii is given. CHAP. I.] LANSDOWNE v. LANSDOWNE 651 A bill was filed against the late Marquis, by Wilmot and Baring, the trustees to preserve contingent remainders, and not by a person having the next estate of inheritance; no such person appearing; but there were contingent remainders, and the present Marquis, the n^xt tenant for life, was entitled to the timber cut, or the substitute for it. The late Marquis did not demurr to that bill. Many of the objections taken to this supplemental bill would have applied to the bill filed against the late Marquis. They obtained an injunction, and thereby their competency to sustain the suit was sanctioned ; and Garth and Cotton, 1753, 1 Dick, 182, certainly was a conclusive authority in support of that suit. The injunction would not have been granted if the trustees had no right to file such a bill. What is said in Jesus Coll. and Bloom, as to not enter- taining a bill after the estate of the tenant for life is determined, applies only to cases where legal waste has been committed, and where the party is liable at law in respect of the waste committed; but here it was equitable waste, as to which a court of law gives no remedy. Lord Hardwicke^ in that case, says, "the party ought to be sent to law" ; which shows he was alluding to legal waste. The party had for such waste a remedy under the statute of Marlbridge, 52 Henry 3, c. 23, or might have brought an action of trover; but the court never sends a party to law in cases of equitable waste ; they being exclusively of equitable cog- nizance. As against the late Marquis, therefore, a bill might have been filed, though no injunction were prayed. This court will not permit a man to commit equitable waste, and retain the produce of the injury, which is recoverable in no other court. Eelief is given for the benefit of those who come after. The case, therefore, of Jesus College and Bloom is distinguishable from the present. In Garth and Cotton, Lord Hardwicke, alluding to his decision in that case, says, "It affords no conclusive argument that a bill for an account of waste can- not be maintained without praying an injunction." Dick, p. 211. The Marquis died, after having sold, and converted to his use the money produced by his wrongful act ; and upon general principles, independent of decision, the assets ought to be liable to pay in respect of his conduct, such assets having been augmented by it. It has been urged, that if the Marquis had committed legal waste, and died, his representatives would not have been answerable, it being a maxim. Actio personalis moritur cum persona, and that the same doc- trine applies, by analogy, to cases of equitable waste. Let us see in what manner this maxim has been interpreted even at law. In Hambly v. Trott, 1776, Cowp. 376, Lord Mansfield says, " "When the cause of action is money due, or a contract to be performed, gain or acquisition of the testator by the work and labor, or property, of another, or a promise of the testator, express or implied; where these are the causes of action, the action survives against the executor. But where the cause of action is a tort, or arises ex delicto, supposed to be by force, and against the King's peace, there the action dies, as battery, false imprisonment, tres- 652 LANSDOWNE v. LANSDOWNE [part ii. pass, words, nuisance, obstructing lights, diverting a water-course, es- cape against the sheriff, and many other cases of the like kind. If it is a sort of injury by which the offender acquires no gain to himself at the expense of the sufferer, as beating, or imprisoning a man, etc., there, the person injured has only a reparation for the delictum in damages to be assessed by a jury. But where, besides the crime, property is acquired which benefits the testator, there an action for "the value of the property shall survive against the executor. As, for instance, the executor shall not be chargeable for the injury done by his testator in cutting down another man's trees; but for the benefit arising to his testator for the value or sale of the trees, he shall. So far as the tort itself goes, an executor shall not be liable ; and therefore it is, that all public and private crimes die with the offender, and the executor is not chargeable; but so far as the act of the offender is beneficial, his assets ought to be answerable ; and his executors therefore shall be charged." This I take to be a just exposition of the qualifications under which the maxim. Actio personalis moritur cum persona, is received at law; and if eqi;ity is to decide in analogy to a court of law, the question in the present case will be. Whether, by the equitable waste committed by the late Marquis, he derived any benefit; or, whether it was a naked injury, by which his estate was not benefited? It is clear it was ben- efited; and as at law if legal waste be committed, and the party dies, an action for money had and received lies against his representative, so upon the same principle, in cases of equitable waste, the party must, through his representations, refund in respect of the wrong he has done. "It would," says Lord Cowper, in Bishop of Winchester v. Knight, 1 P. Wms. 407, "be a reproach to equity to say, where a man has taken my ore or timber, and disposed of it in his lifetime, and dies, that in this case I must be without remedy." It has been argued, that as when legal waste is committed, and there are no persons in being, or appearing, who coidd authorize it, or bring an action in respect of the waste, the wrong is without remedy; so here, there being no persons in esse, or appearing, when the waste was committed, who could authorize it, a bill will not lie in respect of such waste ; but it signifies not, whether such person were in esse or not, for waste of this description could not be authorized; such destruction cannot be authorized; the court says •it shall not be done. The produce of the waste is laid up for the benefit of the contingent remaindermen. To adopt such an analogy to the law, in a case where relief is given against the law, would be singular. Upon these grounds I think the supplemental bill for an account by the new trustees, the tenant for life, and tenant of the inheritance, was properly brought. The trustees wore the proper persons to file the bill against the late Marquis, and the present plaintiffs were the proj)er persons to file the supy)lemental bill, though one of the plain- tiffs was not in esse when the first bill was filed, inasmuch as the money CHAP. I.] ORMONDE V. KYNERSLEY a\d others 653 produced by the waste is not to be pocketed, but to be laid up for the benefit of those who in succession will take the estate. I think the demurrer objectionable on other grounds; but I decide this case upon the broad principle, that where equitable waste has been committed, which never could have been authorized, the court has juris- diction to make the representatives of the party committing such waste accountable. Demurrer overruled. MAEQUIS OF OEMONDE v. KYNEESLEY and others. In Chancery, before Sir John Leach, V. C, 1820. [5 MaddocJc 369.] This bill was filed by the remainderman against the executor of the deceased tenant for life, whose estate had been unimpeachable of waste, for an account of the produce of ornamental timber, which had been cut by the tenant for life. The plaintiff early in 1808 had filed his bill against the tenant for life himself for the same purposes, and had obtained an injunction. The tenant for life put in his answer to that bill on the 1st of June, 1808, and by consent an order was made on the 31st of July, 1808, referring it to the master to inquire as to the ornamental and other timber which had been cut by the tenant for life. This order was never acted upon; and the tenant for life lived till April, 1815, without any further proceeding being had in the cause. The present bill was not supplemental to that suit, but to a subse- quent original bill. The case was much argued. I was not present at the argument, but am informed that it was, first, contended that such a bill could not be filed ; and the following cases were cited, viz. : Bishop of Winchester v. Knight, 1 P. Wms. 406; Garth v. Cotton, 1 Dick. 183, s. c. 3 Atk. 751, and 1 Ves. 524, 546 ; Hambly v. Trott, Cowp. 376 ; Lee v. Alston, 1 Bro. C. C. 194 ; Marquis of Lansdowne v. Marchioness Dowager of Lansdowne, 1 Maddock, 116. And secondly, that as no timber had been cut since the injunction in 1808, and the plaintiff had not proceeded in the former cause, he must be taken to have waived his claim in that respect. The Vice-Chancellor held, that though there was much ground for the latter defense, yet, as it was not made by the answer, he could not notice it. Upon the general point, whether such a bill could be maintained. His Honor stated: That the restraint upon the legal owner as to equitable waste was to be considered as founded on a breach of that trust and confidence which the devisor reposed in the tenant for life, that 654 WOMBELL v. BELASYSE [part ik he would use his legal estate only for the purpose of fair enjoyment. That it was a trust implied in equity from the subsequent limitations, and from the presumed intention of the testator that he meant an equal benefit to all in succession. That in all cases, the assets of a testator were answerable for a profit made by breach of trust : and an account was de- creed according to the prayer of the bill. WOMBELL V. BELASYSE. In Chancery, before Lord Chancellor Eldon, 1825. [6 Vesey (Sumner's edition) 110 a, note.'] The Lord Chancellor. The doctrine of the court is extremely well settled. If the object in planting timber, or in leaving timber standing, is ornament, whether that object is effected, whether the effect is truly ornamental, or the most absurd exhibition that ever was produced, this court will protect that timber; and the protection is not confined to trees planted, or left standing, as ornamental to a house or park: nor does it depend on the distance from the mansion, but I do not recollect that it has gone to this extent, that, if a ride is made through a wood, in which wood the proprietor has been in the habit of cutting timber for the use and repair of the mansion, that ride shall protect the whole wood from being cut at the time of making the ride, and in all future times : as, if the purposes of that ride can be as well consulted by leaving a tenth part of the wood standing, it would be most absurd to require that the whole should be left. Neither do I recollect any issue ever directed upon this; and in directing an issue attention must be had to the interests of all parties; that, if the injunction restrains the legal right to cut timber, security shall be given, that in case of the death of him, whose enjoyment of that legal right may have been restrained improperly, his estate shall, to the extent of the benefit he would have derived from the exercise of that right, be reimbursed by those who restrained him. I think, also, that two issues would be necessary; not only whether the timber was planted, or left standing, for ornament, but also, how far, consistently with that object, trees might be cut; as I cannot hold that the effect of making a ride through a wood is to be, that an axe shall not be laid to the root of a tree in that wood; which would be carrying this doctrine to an extent to which it has never yet gone. In framing the issue another thing also must be attended to; by whom the trees were planted or left standing for ornament: as, if they had been planted by tenant for life without impeachment of waste, unless afterwards left standing with iIkiI view by some person having the inheri- tance, they would not be entitled to this protection. • CHAP. I.] ANONYMOUS 655 WAKERYNG v. BAILLIE. In Chancery, 1461-67. ' [1 Calendars in Chancery LXII.] To compel the defendant Baillie to make an estate to the said hospital and to stay waste, the complainant besought "the right worshipfull and revent Fadir in God the bishop of Excestre Chanceller of England," upon the following facts : It appeared that John Wakeryng was master of the hospital of St. Bartholomew in West Southfield; that the defendant Baillie was feoffee in trust of an estate " called Dokettys "... amortized to the said hospital "to thintent to fynde a prest p'petually to syng and office in a chapell then all of newe made"; that the said Baillie "knowyng well the said place called Dokettys, w'out the seasonable wode growyng uppon the same is not of the yerly value to fynde a prest honestly to syng and office in the said chapell and to kepe thobsvancez above specified, hath sold and doo feld great part of the saide wode and in hasty syme poposeth to doo felle the most part of all the same wode to the value of xl. ti. and tanspose the said place with thappurtenancez agayn thintent, desires, and devout willes of the said Richard and Robert above specified, and agayn all right, reason, and conscience. Please it your good and gacious lord- ship to considere the pymsses, and to grant a writ subpena direct to the said Nicholas to appere by fore your said lordship at a ctain day by you to be lymytted, there to be ruled to relese his right in the said place with thappurtenancez to his said ofeffees to thenlent that he may have noe power to do noe more wast upon the said place, and to make sufficient and due satisfaccion for the said wode so sold and feld, as all good consciens requireth, and that the said cofeffees may ac- complyssh and fulfille the devout willes and desires aforesaid, for the love of God and in wey of charita." ANONYMOUS. In Chancery. [Carij 27.] A lease is made for life, the remainder for life, the remainder over in fee; the first lessee maketh waste; and because he in the fee hath no remedy by the common law, and waste is a wrong prohibited, he shall be holpen in Chancery^, Crompton 48, 6. €56 SKELTON v. SKELTON [part n. HALE V. HALE. ' In- Chancery before Lord Keeper Somers, 1692. [Precedent in Chancery 51.] A. conveys a term for years to J. S. upon trust, to raise £1500 for such child or children of A. as should be living at the time of his death; A. dies, leaving no child, his wife ensient with a daughter, which was after- wards born. My Lord Keeper declared that this posthumous daughter is a child living, at the death of A. within the meaning of the trust, and that a direction of a trust is not to be so strictly construed, as a limitation of an estate at law.' And one Lutterel's case was cited in my Lord Bridgeman''s time, where a bill was exhibited on behalf of an infant in ventre sa mere to stay waste, and an injunction granted upon it.^ SKELTON V. SKELTON. In Chancery, before Lord Chancellor Nottingham, 1677. [2 Swanston 170.] The bill was exhibited against a jointress to stay maresme in felling limber, and notwithstanding the defendant's answer, who claimed the inheritance by a deed which the plaintiff controverted, an injunction was obtained until hearing; and now, at the hearing, she proved her- self to be jointress in tail; and it was urged by Mr. Attorney, that' the defendant being a jointress, within the statute of 11 H. 7, which restrains all power of alienation by fine or discontinuance, she ought likewise to be restrained in equity from committing waste, which is also in disherison of the heir. But this I would by no means allow, that equity sho\ild enlarge the restraints or the disabilities introduced by act of Parliament; and as to the granting of injunctions to stay waste, '"There have been several cases put which have never been determined, as that of a child in ventre sa mere, but always said arguendo, and I should make no scruple in such a case to grant an injunction." Per Lord Hard- wiCKE, in Robinson v. Litton, 1744, 3 Atk. 209, 211. "J3ut the books go further, and say a bill may be brought for an injunction to stay waste on behalf of an infant en ventre sa mere. And so is Mus- grave v. Parry, 2 Vern. 710, which is liable to much more difficulty, for that must be as amicus curiae on the iniborn child's behalf." Per Lord Haed- WICKE, ill rjartli V. Cotton, 1753, 1 Dick. 183, 108. CHAP. I.] SKELTON v. SKELTON 657 I took a distinction where the tenant hath only impunitatem, and where he hath jus in arhorihus. If the tenant have only a bare in- demnity, or exemption from an action if he commited waste, there it is fit he should be restrained by injunction from committing it; but if he have a right in the thing itself, when it was wasted and cut down, there it is no way reasonable that he should be restrained: as, for example, if there be tenant for life, the remainder for life, the rever- sion in fee; here the tenant for life has no right nor power to fell timber or commit waste; yet if he do so he cannot be punished for it in an action of waste, during the life of him in the remainder for life ; for that intervening remainder is an impediment to the action; so it is most just to grant an injunction to stay waste; and so it was ruled in the Chancery by advice of judges, P. 41 El. Sir F, Moor, 554, pi. 748;' and Egerton, C, said he had seen a precedent of such an injunction, 5 R. 2, and so it had been done before, temp. E. 6, Vandemot v. Eyr and with this agrees 16 Jac. B. R., 1 Roll. 377, pi. 13, per curiam. And the reason of this is most convincing; for when such a tenant for life hath cut down the trees, he in the re- mainder in fee may take them away, notwithstanding the mean re- mainder for life, or he may have a trover and conversion against the tenant for life, if he remove them; which shows that such tenant for life hath no property in the trees; it were, ergo, most absurd to put the reversioner to recover damages for his inheritance in the trees, or to seize them as chattels, when they may better be preserved to him in specie, by granting an injunction to stay the felling of them. And upon the like reason it may seem that tenant after possibility may be restrained by injunction from committing waste, for so if he fell trees the reversioner may have a trover and conversion, as was held 24 Car. 1; B. R. Udar i;. Udal's case, p. Rolle et curiam and yet temp. E. B. placita parliament. Ryley, Appendix, 653. Kirbrok petitions "quod hreve de waste poet giser versus Roger son frere" (against Maud, the widow of Roger) "tenant in tail, apres possihilite; Response, ley nest mye uncore ordein en ce cas." Probably this was before 21 Ed. 3, for in 21 Ed. 3, Rot. Pari. n. 46, the commons petition for a general * "Per Egerton, Keeper of the Great Seal, that he had seen a precedent in the time of Richard II., that where there is a tenant for life, remainder for life, remainder over in fee, and therefore waste in the first tenant for life is dispunishable by the common law; yet it had been deemed in chancery by the advice of the judges, upon complaint of him in remainder in fee, that the first tenant shall not commit waste, and an injunction gi-anted." In Cotton V. Garth, 1753, 1 Dick, 183, 208, Lord Hardwicke said: "There- fore the case already put, of an intermediate remainder for life, though the law allows no action of waste, this Court sustains a bill for an injunction, and this abantiquo, according to the case in Moore, 554, where Lord Eixsmere says, he has seen a precedent for it, so long ago as in the reign of Richard II. 1st Roll's Abridg. 377, 1 Vern. 23, and many cases in practice." 658 SKELTON v. SKELTON [part ii. law, that tenant after possibility might be liable to an action of waste, as being in effect but tenant for life, yet could not obtain it ; but this serves only to keep the tenant after possibility in a state of im- punity, if he commit waste, not to give him a right to commit it. On the other side, if there be tenant for life, with an express charge to hold without impeachment of waste, he is not to be restrained by in- junction, for he hath more than a bare impunity, viz., a right in the trees to fell them; a fortiori, in the case in question, no restraint can be put upon a jointress in tail who hath the inheritance; and yet all this notwithstanding, he that hath a lawful power and liberty to com- mit waste may be restrained by Chancery from using this power, when the waste which he is about to do is signally contra honum pub- licum (V. 19 Car. 1, B. R. 1 Roll. 380, T. 3), though a lease for years was made without impeachment of waste by the Bishop of Win- chester, yet when the lessee for years, towards the end of his term, was about to cut up all the trees, an injunction was awarded by the advice of all the Judges, pro hono publico, and in favor of the church, whereof the King is patron, notwithstanding the agreement of the parties. But in my Lord of Orford's case, where the Earl was tenant for life without impeachinent of waste, the reversion in fee to the co-heirs of the Lady Banning, and the Earl was about to pull down a house near Colchester, no injunction could be obtained, but the co-heirs and Sergeant Peck, who was a purchaser from one of them, were fain to compound with the Earl. So it seems there is some discretionary latitude in these cases ; but that which is more remarkable is, that he who hath a power to commit waste may sometimes be restrained from the exercise of that power, when it tends only to a private damage ; as for example, the Lady Evelyn was tenant for life in jointure, remainder to Sir John Evelyn, her eldest son, for life, without impeachment of waste, with several remainders over; the jointress let the land to a tenant at will; Sir John Evelyn enters by consent of the undertenant, and cuts down trees; resolved, though no injunction had lain against Sir John Evelyn if his re- mainder had fallen into possession, yet now it does; for although the license of tenant at will to enter excuse the entry from being a trespass, yet no possession by such entry can enable him to cut down the trees pres- ently, for the jointress hath right during her life to the shade and the mast; and to reasonable bootes; ideoque Lord Bridgman, Custos, awarded an injunction during the life of the jointress. 1 Dec. 1670, 22 Car. 2. Lord Nottincitam's MSS. : " This court sees no color of cause to give the said plaintiff any relief in this court, and doth there- fore think fit and order that the matter of the said plaintiff's bill be from henceforth clearly and absolutely dismissed out of this court; and it is hereby referred to Sir J. F., etc., to tax the said defendants their moderate costs of this suit." Reg. Lib. B., 1G77, fol. 33. CHAP. I.] ABRAHALL i;. BUDD 659 ABRAHALL v. BUDD. In Chancery, before Lord Chancellor Nottingham, 1680. [2 General Ahridgment of Cases in Equity, 757.'] A. upon his marriage settled lands to the use of himself and M. his wife and the heirs of their two bodies. Afterwards A. died sa^is issue. M. married D. (the defendant) being then tenant in tail after possibility of issue extinct, and M. and D. having felled some trees in a grove that grew near, and was an ornament to the mansion house, and having an intention to sell the rest, the plaintiff, to whom the land did belong in remainder, brought his bill to restrain M. from selling those trees, and to have an injunction to stay the committing of waste. The cause was re- ferred, and if the parties could not agree then to be set down again. But Lord Chancellor Nottingham discovered this inclination fortiter for granting an injunction.^ ^This case is also reported in 2 Shower; 2 Freeman's C. C. 53 (incorrectly) ; 2 Swanston, 172 (correctly from Lord Nottingham's MSS.). ^ "But this Court hath gone still further in the case of Abrahall v. Budd, 2 Freeman 53, and Lord Nottingham cites the case of a Lady Evelyn, where there was a tenant for life, remainder to the first son for life, without im- peachment of waste, with remainders over, and the first son by leave of the lessee of the tenant for life, came upon the land and felled timber, which was not under the description of trees growing for shelter, or ornament; and this Court granted an injunction against this, though no action whatsoever could be maintained at law. "And upon the same ground, I did the like in the case of Flemming against the late Bishop of Carlisle, and others: there the Bishop was tenant for life, remainder to his eldest son for life, without impeachment of waste, with remainder over in fee; the eldest son by permission of the Bishop entered, and began to cut down the timber, and the reversioner in fee, brought a bill for an injunction, and I granted it, because he was not to be allowed to exercise his power of doing waste by anticipation; and before the estate to which this privilege was annexed, came into possession; and this in reason comes near to the case of the late Sir John Hind Cotton's bringing himself by collusion, into possession of the timber, before his time. "The ease of Robinson against Lytton, 3 Atk. 209, 2 Eq. Cas. Abr. 528, went still further than the common law. That cause was heard in this Court, the 12th of Dec. 1744. There was a devise to the defendant and his heirs, and if he should die before his age of 21 years, leaving no issue, then to the testator's first, etc., daughters in tail; remainder to the testator's own right heirs; but if the defendant should live to attain the age of twenty-one years, then the estate should be sold, and the money applied for the benefit of the testator's daugh- ters. The defendant, being under the age of twenty-one years, began to commit waste, and the daughters brought their bill in this case; and though the de- fendant had the inheritance in him in point of law at the time, yet by reason GGO FAKEANT v. LOVEL ' [part ii. ANONYMOUS. In Chancery^ before Sir John Trevor, M. E., 1704. [2 Freeman 278.] A woman tenant in tail, after possibility of issue extinct, was restrained from committing waste in pulling down houses, or in cutting down trees, which stood in defence of the house, and fruit trees in the garden; but for some turrets of trees, which stood a land's length or two from the court, would grant no injunction, because she had by law power to com- mit waste; and yet notwithstanding, she was restrained in the particulars aforesaid, because that seems to be malicious.^ FAEEANT v. LOVEL. In Chancery, before Lord Chancellor Hardwicke, 1750. [13 AtTcyns 723.] A bill was brought by a ground landlord to stay waste in an under- lessee, who held by lease from the original lessee. Lord Chancellor. A certificate being produced of the waste, I am of opinion the plaintiff has the same equity as in other cases of injunctions. As where there is tenant for life, remainder for life, remainder in fee, yet the court, on a bill broiight by remainderman in fee, to stay waste in the first tenant for life, will, notwithstanding the intermediate estate for life, upon a certificate of the waste grant an injunction. So, where a mortgagee in fee in possession commits waste by cutting down timber, and the money arising by the sale of the timber is not applied in sinking the interest and principal of his mortgage, the court, on a bill brought by the mortgagor to stay waste, and a certificate thereof, will grant an injunction.^ of tlio fDntingont executory limitation, the Court granted an injunction, and at the hearing of the cause after it's being fully argued, made that injunction perpetual." P<"r Lord TIardwicke, in Garth v. Cotton, 1753, 1 Dick. 183, 209- 210. ' In (Jarth v. Cotton, 1753, 1 Dick. 183, 209, Lord Hardwicke said: "There is the like case before Sir John Trevor, M.R., and this has been followed since by several cases of tenant for life without impeachment of waste generally, who liave attempted to pull down a mansion hcmse or to cut down timber growing for shelter, or ornament of the mansion house." ^^ Yoiile V. Richards, 1832, 1 N. J. Eq. 534; S. C. 23 Am. Dec. 722; Givens v. McCalmont, 1835, 4 Watts (I'a.) 4(50. cuAP. I.] KANE V. VANDERBURGH and others 661 So, likewise, where there is only a mortgage for a term of years, and the mortgagor commits waste, the court, on a bill by the mortgagee to stay waste, will grant an injunction, for they will not suffer a mortgagor to prejudice the incumbrance. For these reasons his Lordship granted an injunction to stay waste. BRADY V. WALDRON AND WALDRON. In the Court of Chancery of New York^ before Chancellor Kent, 1816. [2 Johnson's Chancery 148.] The bill was filed by the plaintiff, a mortgagee, for an injunction to stay waste in cutting timber on the mortgaged premises, whereby the land would become an insufficient security for the debt. There was no suit pending for a foreclosure. The Chancellor.^ An injunction lies against a mortgagor in possession to stay waste. The Court will not suffer him to prejudice the security. Dick. Rep. 75; 3 Atk. 210, 237; 3 Vesey, 105. Injunction granted. KANE V. VANDERBURGH and others. In the Court of Chancery of New York^ before Chancellor Kent, 1814. [1 Johnson s Chancery 11.] The bill, which was for an injunction to stay waste, stated, that Abra- ham Tenbroeck, being seised in fee of the premises, devised them in fee to his daughter, Margaret, who devised them to her sister, Elizabeth Schuyler, for life, remainder to her children living at her death, and in default of such children, remainder to the children of her brother, Dirck Tenbroeck, in fee. After the death of the two testators, Elizabeth Schuyler, and her husband, released her interest to the plaintiff. Eliza- beth is still living, but without issue ; and the defendants are tenants ' See Bishop of London v. Web, 1718, 1 P. Wms. 527; Anonymous, 1729, Mosely, 237; Peirs v. Peirs, 1750, 1 Ves. Sr. 522. An injunction to stay waste will be granted, though there is no suit pending, and though no action can be maintained against the tenant at law. 662 KANE v. VANDERBURGH and others [part ii. from year to year. The bill further stated, that actions of ejectment were intended to be brought against the defendants, who had been served with notices to quit, which would expire on the 1st May next; and it charged also, " that the defendants, by themselves, and others hired by them, are daily committing great waste on the premises by cutting down large quantities of valuable wood and timber, for sale, and carrying the same to market, to the great and irreparable injury of the land, and of the estate of the plaintiff." No answer has yet been put in the bill. The Chancellor. The waste is explicitly and sufficiently charged in the bill to support the injunction. Nor is it essential to this remedy that there should be an actual lis pendens in a court of law. There are numerous cases in chancery, as Lord Hardwicke has frequently ob- served, Perrot v. Perrot, 3 Atk. 94; Robinson v. Litton, 3 Atk. 210; Earrant v. Lovell, 3 Atk. 723; Garth v. Cotton, 1 Ves, 556, in which the court has interposed to stay waste, by the tenant, where no action can be maintained against him at law. Thus, where there is lessee for life, remainder for life, remainder in fee; the mesne remainderman cannot bring waste, nor the remaindermen in fee, but chancery will in- terpose and stay the waste. So equity will, in many cases, restrain waste, though the lease con- tain the clause without impeachment of waste, and which takes away the remedy at law, as where this power is exercised in an unreasonable manner, and against conscience. Aston v. Aston, 1 Ves. 264; Strath- more V. Bowes, 2 Bro. 88. Chancery goes greater lengths than the courts of law in staying waste. It is a wholesome jurisdiction, to be liberally exercised in the prevention of irreparable injury, and depends on much latitude of discretion in the court. The tenant for life is here suffering injury to his own interest, and he, by his tenants, is doing great injury to the inheritance, which it is his duty to prevent. He is bound to stop the mischief, or be responsible him- self. To suppose that an ejectment must be actually commenced be- fore the injunction can issue, is certainly an error ; this would be placing the operation of waste beyond the reach of control during the period of the six months' notice. Indeed, the notice to quit may be con- sidered as the commencement of an adverse proceeding at law, and sufficient to bring the case within the spirit of the decision in Lathrop V. Marsh, 5 Ves. 259. Motion denied, with costs. CHAP. I.] HAWLEY V. CLOWES 663 HAWLEY V. CLOWES. In the Court of Chancery of New York, before Chancellor Kent. [2 Johnson's Chancery 122.] The bill prayed for a partition of land, and for an injunction to stay waste in cutting down and carrying away the timber. It stated, that the plaintiff and defendant owned the land as tenants in common, in equal undivided moieties, and that the defendant is in the actual possession of the whole by himself, or his tenant, and is cutting down the timber, and threatening to persevere; but admitted the plaintiff's title as tenant in common. An injunction was granted on filing the bill, which was sworn to. The defendant, in proper person, moved to dissolve the injunction, on the ground that an injunction to stay waste between tenants in common will not lie, and cited Goodwyn v. Spray, Dickens, 667, in 1786, and Smallman v. Onions, 3 Bro. 621. But if the motion could not be granted in toto, he then moved that he might have liberty to carry off the wood already cut before the service of the process. No answer was put in. The Chancellor. The injunction must be modified, so as to confine it to timber then standing and growing on the premises, and not wanted for the necessary use of the farm. The last-cited case admitted the authority of the Court to grant the writ between tenants in common, in special cases, as where the defendant was sworn to be insolvent; and Lord Eldon, in the subsequent cases of Hole v. Thomas, 7 Vesey, 589, and of Tworl v. Tworl, 16 Vesey, 128, admitted the propriety and neces- sity of this power in the Court, between tenants in common, where the waste was destructive to the estate, and not within the usual and legiti- mate exercise of enjoyment. The case, therefore, of the exercise of this power, must rest in sound discretion; it is not a case of a want of juris- diction. Here is a bill for partition, and pending the suit it appears to be extremely fit that the tenant in common in possession should not be permitted to strip the land of its timber. It is destructive, in many cases, of the value of the estate, and not consistent with a prudent en- joyment by the real owner. The statute of W. 2. 13 Edw. I. c. 22, sess. 10 ch. 6, gives an action of waste by one tenant in common against another. It is, therefore, an injviry recognized by law, and the remedy by injunction is applicable to every species of waste, it being to prevent a known and certain injury; this remedy is peculiarly proper and appropriate pending a bill for partition of the very land. It comes within the equity of the statute of sess. 10 ch. 50. s. 29, which prohibits a defendant, pending a suit for the land, from making waste, and directs 664 DOHERTY v. ALLMAN [part ii.' the Court, where the suit is pending, to prevent it. The injunction, therefore, under the above modification, must be continued until answer, and further order/ Injunction continued. MOLLINEUX V. POWELL. In Chancery, before Lord Chancellor King, 1730. [3 Peere Williams 268, note F.'\ A., tenant for years, remainder to B. for life, remainder to C. in fee; A. is doing waste; B., though he cannot bring waste, as not having the inheritance, yet he is entitled to an injunction. See Roll. Abr. Koswell's case, 377. But if the waste be of a trivial nature, and a fortiori, if it be meliorating waste, as by building on the premises (see 1 Inst. 53) the court will not enjoin ; nor if the reversioner or remainderman in fee be not made a party, who possibly may approve of the waste. In Doherty v. Allman (1878) L. R. 3 App. Cas. 709, 724. It appeared that two leases were granted on pieces of land with some buildings on them in 1798 for 999 years, the other in 1824 for 988 years. The premises had been used as corn stores for some years; afterwards for artillery barracks. As they were unoccupied and dilapidated, the lessee bethought him of turning the stores into dwelling houses whereby he would put money in his purse as well as benefit realty. The lessor however sought to enjoin him and filed his bill alleging waste. The injunction was re- fused. Lord O'Hagan saying: Now we have, I think, established for the purposes of this decision the principles in this case by which we ought to abide. In the case of Mollineux v. Powell, 3 P. Wms. 268, n. (F), which contains the clearest dictum we have upon the matter, two conditions as to the exercise of jurisdiction in cases of waste have been very clearly pointed out, and one at least of those conditions is expressly recognized afterwards in the Irish case of Coppinger v. Gubbins, 3 J. & Lat. 411. Those conditions are that the waste with which a Court of Equity, or your Lordships acting as a Court of Equity, ought to interfere, should be not ameliorating waste, nor trivial waste. It must be waste of an injurious character — it must be ' In .iddition to tho parties enumorated in the text who may enjoin the commis.sion of waste, t)ie following may enjoin or be enjoined: An e\-ff'iitf)ry devisee, Kohinson v. Litton, 1744, .3 Atk. 200; a contingent remainderman in general, University v. Tucker, 1888, 31 W. Va. 621; a de- visee in fee with an executory devise, Turner v. Wright, 18G0, 2 De G. F. & J. 234. CHAP. I.] MEUX V. COBLEY 665 waste of not only an injurious character, but of a substantially injurious character, and if either the waste be really ameliorating waste — that is, a proceeding which results in benefit and not in injury — the Court of Equity, and your Lordships acting as a Court of Equity, ought not to interfere to prevent it. I think that is perfectly well established. On the other hand, if the waste be so small as to be indifferent to the one party or the other — if it be, as has been said by a great authority in our law, such a thing as twelvepence worth of waste, a Court of Equity, and your Lordships acting as a Court of Equity, ought not to interfere on account of the triviality of the matter. Now, in my view of the case, those prin- ciples decide the question so far as this portion of it is concerned ; for it appears to me that we have here established to the full satisfaction of your Lordships, by a series of authorities to which I shall not refer, that the waste, to be of any sort of effect with a view to an injunction, must be a waste resulting in substantial damage. Your Lordships are the judges not only of the propriety of exercising your discretion, but of the facts by which the exercise of that discretion ought to be regulated. Now, with reference in the first place to the materiality of the waste, we have in the analogy of proceedings in the courts of law a very important guide for the exercise of our equitable jurisdiction. It is established not only in The Governors of the Harrow School v. Alderton, 2 B. & P. 86, before Lord Eldon, but in every case, that if there be a trial at law, and if the result of such trial is that the jury is compelled to give nominal damages, such as three farthings in that case, the verdict will be entered, not for the man who obtained the nominal damages, but for the defendant in the case. It is rather an extraordinary jurisdiction, no doubt — it is an equitable jurisdiction exercised by a court of law — but it seems to be quite established and quite recognized, and being so I think it is impos- sible to say that when we come to exercise our jurisdiction, which is a discretionary jurisdiction, we should act upon any other principle, or to say that if we see that the damage has not really been substantial and important, we should do that in a Court of Equity according to our dis- cretion, which even in the strictness of a court of common law is not done because of the reason given." MEUX V. COBLEY. In the Supreme Court of Judicature, Chancery Division, 1891. [Law Reports (1892) 2 Chancery Division 253.] Under an agricultural lease, in 1889, of a farm near London, consisting of arable and pasture land, the lessee covenanted to yield up the premises at the end of the term, together with all fixtures and " improvements " which might during the term be fixed to or erected on the demised CGG MEUX V. COBLEY [part ii. premises, except such fixtures as should be erected by the lessee, and which he should be at liberty to remove in case the lessor should object to purchase the same by valuation ; and also that he would " in all respects cultivate and manage the farm, and every part thereof, in a good, proper, and husbandlike manner, according to the best rules of husbandry prac- tised in the neighbourhood." The lessee converted part of the demised premises into a market garden, erecting glass-houses thereon for the culti- vation of hothouse produce for the London market. The lessor brought an action for an injunction to restrain the lessee from converting the farm into a market garden, alleging that his doing so was a breach of covenant and was waste, causing injury to the inheritance. At the trial it was proved that other farms in the neighbourhood had been con- verted into market gardens, that being found to be the most profitable mode of cultivation." ^ Kekewich, J.^ Now, is what the Defendant is doing waste ? Perhaps, technically, it is. But supposing it to be technically waste, it does not follow that the Plaintiff would recover damages; and if it followed that he would recover damages, it by no means follows that he would get an injunction. The case of Jones v. Chappell, Law Eep. 20 Eq. 539, was referred to usefully, because there Sir George Jessel sums up the law shortly in this way. Ibid. 641 : " The erection of buildings upon land which im- prove the value of land is not waste. In order to prove waste you must prove an injury to the inheritance." That is borne out by many cases, including Governors of Harrow School v. Alderton, 2 Bos. & P. 86, where, on the Plaintiff obtaining a farthing damages, the Defendant got leave to enter judgment for himself. But I think it unnecessary to refer to any other case on this point except Doherty v. Allman, 3 App. Cas. 709, That case seems to me to be entirely consistent with Jones v. Chappell, and to lay down the law in a manner applicable to this case. Besides the passage which was read from Lord Cairns' speech. Ibid. Y22, there is an- other passage immediately following, which I think was not read, but which seems to me also in point. His Lordship said. Ibid. 723 : " I doubt, further, whether it must not be taken as clear from the evidence here that any jury, or any tribunal judging upon the question of fact, would not say that, if there be technically what in the eye of the Common Law is called waste, still it is that ameliorating waste which has been spoken of in sev- eral of the cases cited at the Bar. That which is done if it be technically waste — and here again I will assume in favour of the ap- pellant that it is technically according to the Common Law, waste — yet it seems to me to be that ameliorating waste which so far from doing injury to the inheritance, improves the inheritance." Lord Blackburn went into the same point, and says, App. Cas. 733: " But even supposing there was an injury, and that there was something for which there might ' The statement of the case is taken from the headnote. ' Only part of the opinion ia printed relating to waste. CHAP. I.] DOUGLASS V. WIGGINS 667 be damages recovered, is it obligatory upon a Court of Chancery to grant an injunction to prevent it under all circumstances? I think not." So again Sir George Jessel, in the case of Jones v. Chappell, Law Rep. 20 Eq. 539, to which I have already referred, says, Law Rep. 20 Eq. 542, that the landlord would be entitled to an injunction against the tenant " if the injury were sufficiently serious." So that all that is asked here being an injunction — and rightly so, be- cause, unless the injunction is granted the Plaintiff will get nothing worth having — the question I have to consider is, is there any damage, a.x\\ injury to the inheritance? It has been jiroved to me conclusively, that what the Defendant is doing, so far from being an injury to the inheritance, is of the greatest possible advantage ; and that the addition of these houses, if they are substantially built, and if they are kept in good order, is a most advantageous addition to a farm of this kind in the neighbourhood of London.' DOUGLASS AND OTHERS V. WIGGIlSrS and another. In the Court of Chancery of New York, before Chancellor Kent, 1815. [1 Johnson's Chancery 435.] This was a bill for an injunction, to stay waste. It stated, that the defendants had taken a lease of a dwelling house in Pearl street, in the city of New York, for four years, from the first of May, 1815 ; that the lease provided, that the defendants were to lay out 300 dollars in im- provements, to be approved of by the lessors ; that, against the consent of the lessors, the defendants were converting the whole dwelling house into a store, and were prostrating partitions, and cutting through the ceilings and floors in the second and third stories, and fLxing a wheel and tackle in the third story to raise heavy packages, which would be to the great and constant injury of the building, as the timbers in the third story were weak. Anthon, for the plaintiffs, cited Bonnett v. Sadler, 14 Ves. 526. Amb. 209. Anon, and Bacon, tit. Waste, c. 5. The Chancellor. Let the injunction issue. Motion granted. * Inasmuch as waste is an injury to the inheritance, it follows that a positive improvement to the freehold should not be waste, at least not in a court of equity. See Winship v. Pitts, 1832, 3 Paige 259; Shine v. Wilcox, 1837, 1 Der. & Bat. Eq. 631; Sherrile -i;. Connor, 1890, 107 N. C. 630; Keeler v. Eastman, 1839, 11 Vt. 293; Pynchon v. Stearne, 1846, 11 Met. 304, per Wilde, J. Smith V. Carter, 1853, 18 Beav. 78, contra, is generally discredited. 668 KLIE V. VON BKOOCK [part ii. KLIE V. VON BEOOCK. In the Court of Chancery of New Jersey, 1897. [56 New Jersey Equity 18.] The defendants obtained permission from the Hoboken Land and Im- provement Company to cut the doorway through the partition wall, but, clearly, that company could not give them the right to do so without the permission of the complainants, who owned one-half of the wall. And the result is the same whether we consider that ownership as of the particular one-half which was on their side of the line or as to the undivided one-half of the whole. The question, then, is whether or not, under the terms of the lease, the defendants acquired such a right in the premises as authorized them to make the opening. The opening, as first made, was between four and five feet wide and seven or eight feet high. The bricks and mortar were actually removed, and these composed an essential part of the building itself. Pitney, V. C. Now, it seems to me too plain for argument that such an abstraction amounted to waste at the common law. It was a "spoil" and "destruction," pro tanto, of the building. 2 Bouv. Law Diet. tit. "Waste;" 6 Jac. Law Diet. tit. "Waste" 393 (at p. 399), where the author uses this language, citing authorities : " If a lessee flings down a wall between a parlor and a chamber, by which he makes a parlor more large, it is waste ; it cannot be intended for the benefit of the lessor, nor is it in the power of the lessee to transpose a house. So, if he pulls down a partition between chamber and chamber, it is waste. Or, if a lessee pulls down a hall or parlor and makes a stable of it, it is waste. If a lessee pulls down a garret overhead, and makes it all in one and the same thing, it is waste. Breaking of a wall covered with thatch, and of a pale of timber covered, is waste." To the same effect precisely arc 7 Bac. Abr. tit. " Waste " (at p. 256) and Tayl. Land & T., § 348; Kerr. Inj. 250, 251, where the author says: " An alteration of l)nn(lings which changes their nature and character is waste, oven although the value of the premises be thereby increased. Thus, the converting two chambers into one, or e converso, or the con- verting a hand-mill into a horse-mill, or a corn-mill into a fulling-mill, or a malt-mill to a corn-mill, or a logwood-mill to a cotton-mill, have been hcjld to bo waste. So, also, the conversion of a private house into a shop i.s waste. So, also, may the building of a new house where there was one before be waste if it impair the evidence of title." And he cites Lord Romilly^ in Smith v. Carter, 18 Beav. 78, for CHAP. I.] KLIE V. VON BROOCK 669 authority that a tenant will be restrained from pulling down a house and building another, which the landlord objected to. " It is not suffi- cient," said his lordship, " that the house proijosed to be built is a better one. The landlord has a right to exercise his own judgment and caprice whether there shall be a change; if he objects the court will not allow a tenant to pull down one house and build another in its place." And see 1 Wash. Real. Prop. 113, where the learned author adopts the rule as laid down by Lord Rom illy. This restriction on the right of a tenant for years is based upon the character of his tenancy. " He has the use, but not the dominion of the property." Farrant v. Thompson, 5 Barn. & Aid. 826, per Mr. Justice IIOLROYD. Evidence was given as to whether or not the destruction in this case materially injured the party wall. I think that the weight of the evidence is that it did materially injure it. The wall itself, being only twelve inches in thickness, was, at best, a very slight affair to maintain a four- story building; so much so, that it will, sooner or later, require a shoring on each side. Now it seems to be contrary to common knowledge and common sense to say that taking out and absolutely abstracting a piece of the wall four or five feet wide and seven or eight feet high, will not weaken it, and materially weaken it. A contrary view would result in holding that several such openings could be made in this wall without injuring the building. Then the evidence satisfies me that the attempt to properly secure and support the wall over the opening was not well carried out, and was not successful. New jambs of brick were added to the ragged edges of the opening, in order to make it square and proper to be stopped by doors. Those jambs, being of new material, required the greatest care in their construction in order to make them unite and be homogeneous with the old work, but the complainants' architect swears that upon an inspection made during the hearing he found a crack and opening between the new and the old work. Then iron beams or lintels were placed upon these new jambs to sustain the weight of the wall above. The architect in question gave it as his opinion — and I agree with him — that the proper mode of sustaining those lintels was to place them upon iron plates, placed in turn upon the top of the old part of the wall on each side, and then to key them up with iron wedges so as to make them bear up and press against the old brick work. Instead of this, they were simply laid upon the bare bricks of the new jambs, which, as we have seen, were, from defective construction, insufficient for that purpose. The result of this mode of adjusting them was to render them substantially useless so far as regards preventing any subsidence in the wall above the opening. The architects called by the defendants swear that the opening was made in the usual manner, and well done. But I cannot accept their judgments on this subject. It seems to me they are not sound. But, in my judgment, the test in such a case is not alone whether a 670 KLIE V. VON BROOCK [part ii. material injury is done to the building, but whether it is altered in a naaterial manner, and to an extent beyond what is fairly implied from the terms of the original contract of letting. It is said by the treatise writers, and authorities are cited for the position, that the severity of the ancient rule of waste has been relaxed, and that many alterations are now held not waste, which in ancient times would have been held as waste. I have examined the cases which are said to illustrate this modification, and my conclusion is that in most of them a permission by the owner to the tenant to alter and change the building is either found in the terms of the demise, or is to be implied from the circumstances of the case. Thus, if the owner of a dwelling in a neigh- borhood which is rapidly being converted from a dwelling region into a business region, lets it to a party for a long term of years, knowing that he expects to use it for business purposes, that, by implication, is permission to him to make such alterations as are necessary and usual for that purpose. And so where a demise is made for a great number of years — say one hundred or two hundred — for a fair rental value of the premises, there it must be presumed that the parties intended that the tenant for years should have well-nigh unrestricted use of the premi- ses, provided he does not reduce their rental value. For, in such a case, the reversion, independent of the rent, is of mere nominal value. So, I should say that if a building be erected and let for a hotel, and through oversight or miscalculation some mistake in the interior ar- rangements occurs which materially interferes with its beneficial use for that purpose, and requires a change, it is probable that the right to make such change could properly be inferred from the circumstances. An illustration is found in this case. At the special request of the tenants the landlords divided the basement into two parts by a cross- wall of brick, not a part of the original plan and not necessary for the support of the building. This was done in order to keep the heat of the range in the kitchen from penetrating to the front part of the basement. When the building came into actual use it was found that this wall was an injury rather than a benefit, and was in whole or in part removed by the defendants. They assert that it was done with the consent of the landlords; but the landlords deny this. Be that as it may, I think it was not waste, and its removal was not relied upon as part of complainants' case. The cases in this country relied upon to show an amelioration of the strict English rule are Jackson v. Tibbits, 3 Wend. 341, and Winship v. Pitts, 3 Paige 2.59. Jackson v. Tibbits was an ejectment by landlord against tenant. based upon waste committed by the tenant in the leased premises, which were a tavern in the village of Utica, and the waste was the cutting a door between two rooms in the second story, and putting a window in the df)f)r of the cellar kitchen. It appeared that thoy wore beneficial, and not injuricjus, to the premises. The judge, at the trial, charged the jury CHAP. I.] KLIE V. VON BROOCK 671 that they amounted to waste and worked a forfeiture of the defendants* rights in all the premises. There was evidence, however, of waiver by the plaintiff of the waste. The opinion was per curiam, by Mr. Justice Marcy, and he granted a new trial, not only on the ground that the act committed was not waste, but also that, according to the authorities, the whole premises were not forfeited, but only the part wasted; and further, that there was proof from which the jury might have inferred a waiver. Of course, in considering the effect of this case, and others like it, we must bear in mind that the courts are always anxious to save an actual forfeiture of the term. Winship V. Pitts, supra, was decided by Chancellor Walworth. There a tenant of a corner lot, which had vacant land in the rear abutting on a side street, proposed to erect a stable there, and the landlord, own- ing other property in the neighborhood, filed a bill for an injunction. The Chancellor held that the mere erection of a stable on vacant land was not waste. In fact, it never was waste; a dictum to the contrary by Lord Coke was very shortly afterward overruled. After a full review of all the cases in both countries, Professor Dwight, sitting in the commission of appeals, in Agate v. Lowenbein, 57 N. T. 604, declares that " there can be no pretence of any relaxation of the rule against waste in the case of tearing down houses or taking away inner walls or partitions. It would be difficult to set any limits to such acts by judicial decisions. Where such changes are desired they should be left to the agreement of the parties." In this view I heartily concur. Then there is a distinction taken by the judges between an alteration in the outside walls of a building forming a property boundary and those more trifling alterations which may be made in the interior partitions — taking away or cutting a door through an interior partition or altering a street window into a door. As late as 1817 Lord Ellenborough, after hearing the most distinguished counsel of the day, held that the cutting of a doorway through the outside wall of a demised house into an ad- joining house and keeping it open for a long space of time, amounted to a breach of a covenant to repair, which was a continuing breach, and which caused a forfeiture and entitled the landlord to recover in an action of ejectment against his tenant. Doe, ex dem. Vickrey, v. Jackson, 2 Stark, 260. In Doe V. Jones, 4 B. & Ad. 126, attempt was made to forfeit a lease on account of a breach of covenant to repair. The term was for forty years, and the lease contained a covenant to keep in repair the premises " and all such buildings, improvements and additions as shall be made by the lessee during the term," with a proviso for re-entry in case of breach. The lessee changed the lower windows opening on the street, and stopped up a doorway, making a new one in a different place in an interior partition of the house, and it was held that there was no waste because it appeared that the changes were not injurious and were con- 672 KLIE V. VON BROOCK [part ii. templated by the language of the lease. Doe v. Jackson, supra, was cited, but the judges distinguished it on the ground that in that case the break- ing was of a wall between two houses, and not in an interior partition of the house. Young V. Spencer, 10 B. & C. 145, was an action on the case by land- lord against tenant for injury to the leased premises. It appeared that the defendant had opened a door from the house into the street, and the jury found specially that no injury was done to the house itself or to any of the other houses owned by the plaintiff on that street. The judge directed a judgment for the plaintiff, but the court held that it was for the jury to say whether there was any injury to the plaintiff's reversion- ary right, and granted a new trial. Some of the authorities cited by the defendants' counsel were cases of equitable waste, and so not applicable here ; the distinction being that equitable waste is an abuse by a tenant, without impeachment of waste, of his legal right to commit waste. I can find no authority holding that a breach in and partial destruction of a wall dividing the demised premises from those adjoining owned by another party is not waste. In the present instance there can be no pretence that the right to make such a breach can be implied from anything contained in the contract or found in the circumstances surrounding its inception and conclusion. The building was designed especially for a restaurant, to be used in con- nection with the complainants' liquor saloon, and the defendants were consulted and knew and agreed to all the details of its construction. Indeed, in their answer they claim a greater voice in those details than the complainants admit. It was not contended that, as constructed, it did not answer the expectation of the parties. There was and can be no pretence that the change effected by the opening in question tends to make the building more convenient for the use for which it was designed and leased. These considerations lead to the conclusion that the case is not covered by any well-considered authority in which tenants have been held justified in changes of this character. Fourth, as to the remedy. In the prayer of complainants' bill they ask that the defendants may be ordered either to restore the opening in the party wall, or to give security for its restoration at the end of the term. By thus praying for alternative relief T understand that the complainants did not intend to give to the defendants an option of submitting to the latter remedy, but simply to ask that the court should give it if the first remedy of imme- diate restoration was not considered by the court proper and equitable. The defendants, by their answer, and at the hearing, offered to give security for restoration at the end of the term, but complainants at the hearing insisted upon immediate restoration. It is well settled that complainants are entitled to immediate relief, <;hap. I.] KLIE v. VON BROOCK 673 and are not obliged to wait until the end of the term. Agate v. Lowen- bein, 57 N. Y. C04, and cases cited at p. 612 et seq. In the present case the waste was committed against the known wishes and protest of complainants, and with such haste that it was substantially- completed before comi^lainants could obtain preventive relief from this court. In the somewhat similar case of Bonnett v. Sadler, 14 Ves. 526, Lord Eldon did not think it inequitable. In that case the complainants were the jjroprietors of a carriage factory and salesroom, and owned an adjoining house, which was a dwelling. The defendants leased the dwelling, concealing from the complainants the fact that they intended to set up a rival establishment, and after getting possession proceeded to change the front and interior of the building so as to make it fit for that purpose, and Lord Eldon remarked upon their conduct in that respect as inequitable. And Lord Selborke, in Goodson v. Richardson, L. R. 9 Ch. App. 221, 1874, at p. 224, spoke approvingly of a landowner, who was interested in a water company, standing on his strict rights in equity to prevent a rival company from laying its water mains in the street in front of his lands. The presumption is that the restriction against selling liquors con- tained in the lease affected the amount of the rent. At all events, the com- plainants are entitled to the benefit of their contract, and are justified in using all legal means to preserve it. For these reasons complainants, in my judgment, have a clear right to relief in this court. The authorities justify the use of a mandatory injunction in such cases. The leading case is Vane v. Lord Barnard, 2 Vern, 738, known as the Raby Castle Case. This was followed by Rolt v. Lord Somer- ville, 1737, decided by Lord Hardwicke and reported in 3 Eq. Cas. Abr. at p. 759, where there was a cutting of trees and also pulling down houses and buildings. The prayer was that the premises might be restored. Lord Hardwicke said that he could not compel the restora- tion of the trees, but he said, " yet, as to the pulling down the houses and buildings and laying the lead pipes they may be restored or put in as good condition again," citing with approbation the case of Vane v. Lord Barnard. I think the present a proper case for immediate restoration. I will advise a decree that the defendants be restrained from permitting the opening in the party wall, made by them on or about May 10th, 1896, to remain in its present condition, or from permitting the party wall between the leased premises and those of the Hoboken Land and Improvement Company on the west, to be in any other condition than it was prior to the opening made therein by the defendants ; and further, if complainants desire themselves to do the work of restoration, then that the defendants be restrained from preventing the complainants from so doing, at a reasonable time and in a reasonable manner, and the court 674 ■ WHITFIELD v. BEWIT [part ii. will name a special master, under whose supervision the work of restora- tion shall be done, if the parties cannot agree thereupon. The provision for restoration may also include the window opening upon the area, if the brickwork has not already been restored to its original condition/ WHITFIELD V. BEWIT. In Chancery^ before Lord Chancellor Macclesfield, 1724. [2 Peere Williams 240.] One seised in fee of lands in which there were mines, all of them un- opened, by deed conveyed those lands and all mines, waters, trees, etc., to trustees and their heirs, to the use of the grantor for life (who soon after died), remainder to the use of A. for life, remainder to his first, etc., son in tail male successively, remainder to B. for life, remainder to his first, etc., son in tail male successively, remainder to his two sisters C. and D. and the heirs of their bodies, remainder to the grantor in fee. A. and B. had no sons, and C, one of the sisters, died without issue^ by which the heir of the grantor, as to one moiety of the premises, had the first estate of inheritance. A., having cut down timber, sold it and threatened to open the mines; the heir of the grantor being seised of one moiety ut supra by the death of one of the sisters without issue, brought this bill for an account of the moiety of the timber and to stay A.'s opening of any mine. * "The American doctrine on the subject of waste is somewhat varied from the English law and is more enlarged, and better accommodated to the circum- stances of a new and growing country," 4 Kent's Commentaries 76; see also the opinion of Van Syckel, J., in Gaines v. Green Pond Iron Co. et al., 1881, 33 N. J. Eq. 603. "The doctrines of the Common Law, however, require considerable mod- ifications when they are applied to social, domestic, and political conditions different from those which prevail in the country of its origin. And their in- herent wisdom is strikingly manifested in the ease and flexibility with which they were adapted to new and altered circumstances. The law of waste, as understood in England, would have made it impossible for tenants to cultivate the wild lands of this country." Per Bryan, J., in Crowe v. Wilson, 1886, 65 Mo. 479, 481. "Following the same general line of reasoning, it was early held in the United States that, while the English doctrines as to waste was a part of our American law, still the cutting of timber in order to clear up wild land and fit it for cultivation, if consonant with the rules of good husbandry, was not wa.ste, altbougli such acts would have been clearly waste in England." Per WlNBLOW, J., in Mclro.se v. Pabst Brewing Co., 1809, 104 Wise. 7, 11. CHAP. I.] WHITFIELD v. BEWIT 675 1st Obj. As to the plaintiff's claim of the moiety of the moneys arising by sale of the timber, in regard the plaintiff comes into equity for the same, it would be more agreeable to the rules of equity that the moneys produced by the timber should be brought into court and put out for the benefit of the sons as yet unborn and which may be born. That these contingent remainders being in gremio legis and under the protection of the law, it would be most reasonable that the moneys should be secured for the use of the sons when there should be any born ; but as soon as it became impossible there should be a son, then a moiety to be paid to the plaintiff; and the case would be the same if there were a son in ventre sa mere; or the plaintiff might bring trover, and then what reason had he to come into equity ? Cur. : The right to this timber belongs to those who at the time of its being severed from the freehold were seised of the first estate of inherit- ance, and the projoerty becomes vested in them. As to the objection that trover will lie at law, it may be very necessary for the party who has the inheritance to bring his bill in this court, be- cause it may be impossible for him to discover the value of the timber, it being in the possession of, and cut down by, the tenant for life. This was the very case of the Duke of Newcastle v. Mr. Vane, where at Welbeck (the Duke's seat in Nottinghamshire) great quantities of timber were blown down in a storm; and though there were several tenants for life, remainder to their first and every other son in tail, yet these having no sons born, the timber was decreed to belong to the first remainderman in tail. Neither do I think the defendant ought (as he insists) to be allowed out of this timber what money he has laid out in timber for repairs, since it was a wrong thing to cut down and sell the same, and shows quo animo it was done, not to repair but to sell. Secondly, it was urged that the mines, being expressly granted by this settlement with the lands, it was as strong a case as if the mines them- selves were limited to A. for life, and like Saunder's Case in 5 Co. 12, where it is resolved, that on a lease made of land together with the mines, if there be no mines open, the lessee may open them ; so in this case, there being no mines open, the cestui que use for life might open them. But Lord Chancellor, contra. A. having only an estate for life subject to waste, he shall no more open a mine than he shall cut down the timber trees, for both, are equally granted by this deed ; and the meaning of in- serting mines, trees, and water was, that all should pass, but as the timber and mines were part of the inheritance, no one should have power over them but such as had an estate of inheritance limited to him. Of which opinion was Lord Chancellor King on a rehearing. 67G BATEMAN v. HOTCHKIN [part ii. BEWICK V. WHITFIELD. In Chancery, before Lord Chancellor Talbot, 1734. [3 Peere Williams 267.] A. was tenant for life, remainder to B. in tail, as to one moiety, re- mainder as to tlie other moiety to C. an infant in tail, remainder over. There was timber upon the premises greatly decaying; whereupon B. the remainderman, brought a bill, praying, that the timber that was decay- ing might be cut down and that the plaintiff the remainderman in tail, together with the other remainderman, the infant, might have the money arising by the sale of this timber. On the other hand, the tenant for life insisted to have some share of this money. Lord Chancellor. The timber, while standing, is part of the inheri- tance ; but whenever it is severed, either by the act of God, as by tempest, or by a trespasser and by wrong, it belongs to him who has the first estate of inheritance, whether in fee or in tail, who may bring trover for it ; and this was so decreed upon occasion of the great windfall of timber on the Cavendish estate. Secondly. As to the tenant for life, he ought not to have any share of the money arising by the sale of this timber; but since he has a right to what may be sufficient for repairs and botes, care must be taken to leave enough»upon the estate for that purpose; and whatever damage is done to the tenant for life on the premises by him held for life, the same ought to be made good to him. Thirdly. With regard to the timber plainly decaying, it is for the bene- fit of the persons entitled to the inheritance, that it should be cut down, otherwise it would become of no value; but this shall be done with the approbation of the Master; and trees, though decaying, if for the defence and shelter of the house, or for ornament, shall not be cut down. B., that is, the tenant in tail (and of age), of one moiety, is to have a moiety of the clear money subject to such deductions as aforesaid, the other moiety belonging to the infant, must be put out, for the benefit of the infant on government or real securities, to be approved of by the Master. BATEMAN v. HOTCHKIN. In Chancery, before Lord Eomilly, M. K., 1862. [31 Beavan 486.] A question arose as to the right of a tenant for life impeachable for waste to a fund derived i^artly from wood blown down by a storm. The :t]. This is not the case of a stranger entering upon the land, as a trespasser, without pretence of right, and cutting down timber. In such a case, Lord Thurlow, in Mogg v. Mogg, Dickens, Hep. 670, refused to interfere by injunction. This is analogous to a case before Lord Camden^ referred to by the counsel in Mogg v. Mogg, and which Lord Thurlow seemed to approve of. It was, where a defend- ant claimed a right to estovers, and, under that right, cut down tim- ber. There was a claim of right, and, until it was determined, it was proper to stay the party from doing an act, which, if it turned out he had no right to do, would be irreparable. So, also, in Hanson v. Gar- diner, 7 Vesey 305, the injunction was granted, where the defendant, claimed common of pasture and estovers ; and, in that case. Lord Eldon observed, that the law, as to injunctions, had changed very much, and they had been granted much more liberally than formerly. They were granted in trespass, when the mischief would be irreparable, and to prevent a multiplicity of suits. In Mitchell v. Dors, C Ves. 147, the defendant, in the process of tak- ing coal, had begun to work into the land of the plaintiff, and though this was strictly a trespass, yet the injunction was granted, because ir^ reparable mischief would be the consequence if the defendant went on. In Hamilton v. Worsefold, and in Courthope v. Mapplesden, 10 Vesey 290, and note, ibid., injunctions were granted against a trespasser enter- ing with permission, or by collusion with the tenant and cutting timber. Lord Eldon repeatedly suggested the propriety of extending the in- junction to trespasses, as well as waste, and on the ground of prevent- ing irreparable mischief, and the destruction of the substance of the inheritance. The distinction on this point, between waste and tres- pass,' which was carefully kept up during the time of Lord Hardwicke, was shaken by Lord TiiuRi,ow, in Flamang's case, respecting a mine, and seems to be almost broken down and disregarded by Lord Eldon. This protection is now granted in the case of timber, coals, lead ore, quarries,^ CHAP. 1.] LIVINGSTON v. LIVINGSTON 691 etc. ; and "the present established course," as he observed in Thomas v. Oakley, 18 Ves. 184, "was to sustain the bill for the purpose of injunc- tion, connecting it with the account, in both cases, and not to put the plaintiff to come here for an injunction, and to go to law for damages." The injunction was granted in Crockford v. Alexander, 15 Ves. 138, against cutting timber, when the defendant had got possession under articles for a purchase; and in Tworl v. Tworl, 16 Ves. 128, against cut- ting timber between tenants in common; and in Kender v. Jones, 17 Ves. 110, where the title to boundary was disputed ; and in the case of Eai'l Cowper v. Baker, 17 Ves. 128, against taking stones of a peculiar and valuable quality at the bottom of the sea, within the limits of a manor, and in Gray v. Duke of Northumberland, 17 Ves. 281, against digging coal upon the estate of the plaintiff; and in Thomas v. Oakley, against exceeding a limited right to enter and take stone from a quarry. In all these cases, the injury was considered a trespass, and in two of them it was strictly so ; and the principle of the jurisdiction was to preserve the estate from destruction. But I can safely allow the injunction in the present case, without going to the extent of these lat- ter cases, or following the habit, as Lord Eldon termed it, in Field v. Beaumont, 1 Swanston 208, of the English Chancery, in granting in- junctions in cases of trespass as well as of waste. Here has been one action of law, in which the claim of the defendant to estovers in the lands of the plaintiff has received a decision against him, and there is another suit at law still depending, in which the same question arises. It is just and necessary to prevent multiplicity of suits, that the further disturb- ance of the freehold should be prevented, until the right is settled ; and the case decided by Lord Camden is a sufficient authority for the inter- position asked for in this case. The recent decision by the Vice-Chancellor, in Garstin v. Asplin, 1 Madd. Ch. Rep. 150, shows, that it is not the general rule, that an injunc- tion will lie in a naked case of trespass, where there is no privity of title, and where there is a legal remedy for the intrusion. There must be something particular in the case, so as to bring the injury under the head of quieting possession, or to make out a case of irreparable mischief, or where the value of the inheritance is put in jeopardy. Injunction granted.* • In N. Y. Printing & Dyeing Establishment, 1828, 1 Paige, 97, Chancellor Walworth said: "The case of Livingston v. Livingston, and the several cases there referred to, settle the principle that an injunction will lie to restrain trespasses, even where there is a legal remedy for the intrusion; but there must be something particular in the case, to sustain the jurisdiction of the court so as to bring the injury under the head of quieting the possession, or to make out a case of irreparable mischief; or the value of the inheritance must be put in jeopardy by the continuance of the trespass." 692 JEROME v. ROSS [part n. JEROME V. ROSS. In the Court of Chancery of New York, before Chancellor Kent, 1823. [7 Johnson's Chancery 315.] The Chancellor [Kent]. This is the case of an appeal from inter- locutory decree. The order, continuing the injunction, overruled the two grounds, taken in support of the motion for dissolving the injunction, and which were, 1. The want of equity in the hill. 2. The sufficiency of the justification set up in the answer. 1. I have not been able to satisfy myself that the bill contains suf- ficient equity to warrant the injunction.^ The bill contains a charge of trespass, by entering upon the land of the plaintiff, and digging, throwing up, and carrying away, large parcels of stone, from a ledge of stone and mass of rock on the premises. Several actions have been commenced in a court of record to recover damages for this trespass; but it is not stated that any of these actions have been brought to trial. One action has likewise been instituted be- fore a justice of the peace, and that action has been tried, and the plain- ' Only the opinion of the learned Chancellor is given on the first point. The injunction was dissolved. This was Chancellor Kent's last case. Two days later, July 31, 1823, the Chancellor having completed his sixtieth year, left the bench in accordance with a provision of a foolish law limiting the tenure of judicial office to the sixtieth year. Considering the delay of English Chancery, the Reporter's note will have a double and peculiar interest: "This day the Chancellor terminated his judicial labours, having heard and decided every case and motion brought before him." It is not too much to say that these various cases before Chancellor Kent, based as they were upon enlightened English precedent, established the law upon a firm, intelligent and intelligible basis before the masterly decision of Vice-Chancellor Kinuersley in Lowndes v. Bettle. In Wood V. Braxton, 1892, 54 Fed. 1005, 1008, Goff, Circuit Judge, truly and impressively said : "The judisdiction of courts of equity by way of injunction to restrain waste, to prevent the cutting of timber, and the mining of minerals, is one of com- ])aratively recent origin, but it is now fully recognized and well established in this country as well as in England. A leading case, in which the question of Mjuiiy jurisdiction in such controversies was fully considered and previous authorities discussed, is that of Jerome v. Ross, 7 Johns. Ch. 315. This is the last decree rendered by that illustrious Chancellor, whose able, clear, and eru- dite opinions not only charm, but instruct and convince us — Kent — and it is replete with the wisdom of the English and American decisions on that ques- CHAP. I.] JEROME V. ROSS 693 tiff recovered damages to the amount of 25 dollars. The plaintiff has his complete and perfect remedy at law for the trespass, as often as it may be repeated; and the only question is, whether the injury be so ruinous and irreparable as to call for the extraordinary interposition of a court of equity. The bill does not pretend that the ledge of rock, upon which the trespass was committed, was of any particular use or value to the plaintiff, or that he ever did or ever intended to apply it to any valuable purpose. The plaintiff speaks of the injury as irreparable, because the loads of stone, taken from the mass of rock, cannot be* replaced or restored; but as he does not state that the rock was of any use to him, as proper or fit for building, fencing, etc., or that it was even desirable as an object of ornament or taste, there was no need of having the same identical fragments of stone replaced, and the injury was not, in the sense of the law, irreparable. It was susceptible of a perfect pe- cuniary compensation. The case, therefore, seems to resolve itself into this single point, whether a court of equity ought to interpose, by in- junction, to restrain a trespass, when the injury does not appear to be irremediable and destructive to the estate, and when the ordinary legal remedy in the courts of law can afford adequate satisfaction. The English Court of Chancery is now in the habit of granting in- junctions in trespass, when the case is peculiar and special; and even this practice came into use long subsequent to the date of our revolution. As late as 1786, Mogg v. Mogg, Dickens, 670, Lord Thurlow directed a search to be made, to see if ever there was an instance of an injunction, tion. See also Anderson v. Harvey, 10 Grat. 386; McMillan v. Ferrell, 7 W. Va. 223; Moore v. Ferrell, 1 Ga. 7; Erhardt v. Boaro, 113 U. S. 537, 5 Sup. Ct. Rep. 565. "If the nature of the inquiry complained of goes to the substance of the estate, thereby producing irreparable mischief, equity will interfere in limine, and not require the party to resort to an action at law, and this independent of the question of the insolvency of the defendant. The chief value of the land in the bill mentioned is charged to be in its timber, and this the defendants, it is conceded, have made extensive arrangements to remove, having expended many thousands of dollars for that purpose. This removal goes to the very substance of the inheritance, to the destruction of that which is the main element of value to it. The fact that the value of timber can be estimated, that it can be determined by the thousand feet, or by the car load, does not deprive a court of equity of the right to interfere by way of injunction, in cases where it is being cut and removed or destroyed, and where the owner- ship is in controversy. The products of mines and forests have a value that can generally be fixed, yet it was in prevention of trespasses to property of that character that the jurisdiction in question had its origin, and is now most frequently exercised. While it is true that, when this jurisdiction for equity was first claimed, 'Lord Tiiurlow hesitated' and 'Lord Eldon doubted,' it is now well determined — the decisions coming from courts of such character as to command our respect and of such grade as to compel our approval — that the jurisdiction not c^nly exists, but that it is absolutely essential for the preservation of right and the suppression of wrong." 694 JEROME v. ROSS [part ii. where a mere trespasser entered upon land and cut timber; and as no such precedent could be found, he denied it even in a case of trespass in cutting down timber. But since that time, the practice has been introduced and justly and reasonably applied to special cases, where irre- parable ruin would have followed the refusal to enjoin the trespass. It was allowed by Lord Thurlovv, in Fleming's case, cited 6 Vesey, 147, where the defendant had worked from his own land into the coal mine of the plaintiff; and that case was followed by Lord Eldon, 6 Vesey, 147; 7 Ves. 307, on the principle that irreparable mischief and ruin of the property, as a mine, would be the consequence, if the party was not stopped. On the same ground, the injunction- is granted against diverting a water-course from a mill, 1 Bro. 588 ; against the destruction of timber, 10 Vesey, 290; against the taking of stones of a peculiar value, 17 Vesey, 128; or stones from a quarry, 18 Vesey, 184. But all these are cases of great and irremediable mischief, which damages could not compensate, because the mischief reaches to the very substance and value of the estate, and goes to the destruction of it in the character in which it is enjoyed. The present case is, in no reasonable sense, analo- gous to those cases. The plaintiff does not aver, or show, that the "ledge of stone and mass of rock," on which the trespass is committed, is of any essential use, or that he does or can apply it to any valuable purpose. It is very possible that this "ledge of rock" may be some precipitous, naked, barren hill, absolutely worthless for any other purpose than that to which the defendants apply it. Is the case, then, to be com- pared to that of a lead or coal mine, or a quarry of marble, or a fine build- ing, or precious stone, or a grove of timber, or a mill establishment, which the Court of Chancery has thought proper to protect from trespass and ruin, by the strong and menacing hand of an injunction? Certainly not; and if the plaintiff is entitled to an injunction in this case, I do not see why every man, in possession of land, may not call for an injunction to protect him from his neighbor's trespasses in every pos- sible case. The objection to the injunction, in cases of private trespass, ex- cept under very special circumstances is, that it would be productive of public inconvenience, by drawing cases of ordinary trespass within the cognizance of equity, and by calling forth, upon all occasions, its power to punish by attachment, fine and imprisonment, for a further commission of trespass, instead of the more gentle common law remedy by action, and the assessment of damages by a jury. In ordinary cases, this latter remedy has been found amply sufficient for the protection of property; and I do not think it advisable, upon any principle of jus- tice or policy, to introduce the chancery remedy as its substitute, ex- cept in strong and aggravated instances of trespass, which go to the destruction of the inheritance, or where the mischief is remediless. Tbis was tbc opinion and doctrine which I had occasion to declare in the case of Stevens v. Beekman, 1 Johns. Ch. Rep. 318, and it ap- CHAP. I.] JEROME V. ROSS 695 pears to be the English doctrine, and the practice of this court has been in conformity to it. I do not know a case in which an injunction has been granted to restrain a trespasser, merely because he was a trespasser, without showing that the property itself was of peculiar value, and could not well admit of due recompense, and would be de- stroyed by repeated acts of trespass. In ordinary cases, the damages to be assessed by a jury will be adequate for a check and for a recom- pense. Every man is undoubtedly entitled to be protected in the pos- session and enjoyment of his property, though it may be of no intrinsic value. He may have on his land a large mound of useless stone or sand, which he may not deem worth the expense of inclosing, and yet it would be a trespass for any person to remove any portion of the stone or sand without his consent ; and he would be entitled to his action, even though the damages were nominal. But would it be proper for this Court to assume cognizance of such a trespass, and lay the interdict of an in- junction upon it ? I apprehend not. The bill, to which I am still confining myself, does not, except in a very imperfect manner, disclose the pretences or claim of right under which the trespass has been committed. It only states, that the de- fendants are engaged in building a dam in Hudson's river, near the north line of the city of Troy, and that the materials taken from the ledge of rock are applied to the dam; that one of the defendants acts as engineer in that operation, and that the defendants pretend that they are acting in behalf of this state, and by authority of the statutes relative to canals. But admitting that the defendants do pretend to act by public authority in their commission of the trespass, it does not alter the principle; and the trespass itself must be of the character I have described, before a court of equity can be called upon to interfere by injunction. All the cases referred to, were those in which the trespass went to the destruction of the property, as it had been held and enjoved. In the case of Agar v. The Regent's Canal Company, Cooper's Eq. Rep. 77, the defendants were empowered by a private act of parliament to cut a canal; the line of the canal had been prescribed, and they departed from that line, and were carrying the canal through a garden and rickyard ; and Lord Eldon allowed an injunction. So, in the case of Shand v. Henderson, 2 Dow, 519, the Aberdeen Canal Navi- gation Company were charged with having taken and appropriated lands to their use, by unwarrantably deviating from the line particularly pre- scribed by statute, and an injunction to restrain the Canal Company within their limits was admitted to be proper. But in both these cases, the companies were making a permanent appropriation f)f the land, and destroying the inheritance; and upon the acknowledged principle, in all the cases, it was necessary to restrain them. In the case, also, of Hughes V. The Trustees of Merton College, 1 Vesey, 188 and Belt's Supp., the commissioners of a turnpike company entered, took possession of, and were destroying, by digging for gravel, large garden grounds of the G96 JEROME v. ROSS [part il plaintiff, who was a gardener by trade. The turnpike act had specially excepted gardens, as well as orchards, planted walks, etc.; and Lord Hardwicke thought it a clear case of trespass, and of such a nature that the plaintiff was entitled to seek his remedy by injunction, though he had his remedy at law. But he admitted, that if there had been any ground for doubt, whether or not the commissioners had authority, he would not have interposed until the doubt had been removed, and the matter finally determined at law. And it is to be observed, that here was the destruction of what a man was using as his trade or liveli- hood. Several cases have occurred in this court, in which public trustees have been restrained by injunction from acts of trespass; but the acts were such as went to destroy the enjoyment of valuable property and privileges. Thus, in the case of Gardner v. The Trustees of Newburgh, 2 Johns. Ch. Rep. 162, the trustees were going to divert a stream of water that had flowed immemorially, and had supplied the brickyard, the dis- tillery, and mill erections of the plaintiff; and the case not being deemed within the provisions of the act in favor of those trustees, an injunction was granted. Afterwards, in Belknap v. Belknap, 2 Johns Ch. Rep. 463, an injunction was allowed upon the same principle, of preventing a great and irreparable mischief. In that case, inspectors under an act of the legislature for draining certain swamps and bog meadows, for the benefit of some individuals, undertook to lower a large pond of 400 acres, by cutting down the outlet which would destroy the value of the pond and outlet as a source of water for the use of mills established on the outlet. It was considered to be an interference not warranted by the statute, and to be a great and special trespass, leading to lasting mischief, and the destruction of the estate. It was further observed, that it was not a case which concerned the public, but one of mere private convenience and profit, and the act ought to be strictly construed. These cases all show, that, in respect to acts of trespass committed upon land, even by persons in a public trust, under color of law, the Court has not interfered by injunction, unless where the trespass was per- manent, as well as grievous, or went to destroy the value of the property to the owner. It is not sufficient that the act be simply, per se, a tres- pass; but it must be a case of mischief and of irreparable ruin to the property, in the character in which it has been enjoyed. In all other cases, the common law remedy is deemed to be adequate, and perfectly competent to give compensation, as well as to deter and prevent the rejoetition of the trespass, by the exemplary damages which it will in- flict. A court of equity will sometimes interfere to prevent a multiplicity of suits, by a bill of peace. The principle is stated in Lord Tenham v. Herbert, 2 Atk. 483, and in Eldridge v. Hill & Murray, 2 Johns. Ch. CHAP. I.] LOWNDES V. BETTLE 697 Rep. 281. But that is only in cases where the right is controverted by numerous persons, each standing on his own pretensions; and it has no application to the case of one or more persons choosing to persevere in acts of trespass, in despite of suits and recoveries against them. A troublesome man may vex and harrass his neighbor, by throwing down his fences, and turniiig cattle upon his grounds, or by passing over them, or otherwise annoying him; but it is to be presumed, that re- peated recoveries for damages, with the punishment of costs, and such smart money as a jury would naturally give, would soon effectually cor- rect any such disposition. At any rate, I do not know that a court of equity has ever interfered merely to correct such a practice ; and it would certainly require very strong evidence of the inefficacy of the ordinary legal remedies for compensation, as well as for correction, before this Court would venture to assume a jurisdiction hitherto unknown. For these reasons, I am of opinion, that the bill itself does not con- tain matter sufficient to warrant or sustain the injunction; and that the plaintiff ought to have been left to his remedy at law. LOWNDES V. BETTLE. In Chancery, bkfore Sir R. T. Kindersley, V. C, 1864. [33 Law Journal, Chancery, 451.'] A testator in 1768 devised his estate to his heir-at-law, but if no heir- at-law could be found, he declared that William Lowndes should be his heir. The testator died in 1772; and in 1773 William Lowndes filed a bill to have his rights so ascertained. No heir-at-law could be found, and in 1783 a decree was made establishing the will, and declaring that the estate was to be considered as belonging to William Lowndes, and that he was to be put in possession. The estate continued in his family ever since, and the plaintiff was one of his descendants, and the present owner. The defendant claimed to be heir-at-law of the testator, and in Septem- ber, 1861, and since, had sent notices to the plaintiff threatening to come on the estate, and to cut trees and turf, in order, as he said, to keep up his rights, and to bar the Statute of Limitations. On a motion for an interim injunction the defendant did not appear, and the injunction was granted ; the case now came on to have the in- junction made perpetual. Kindersley, V.C. (Jan. 23), after remarking on the threats of litiga- 'The case is even more elaborately reported in 10 Jurist. N. S. 226. A shorter, and in some respects, more satisfactory report of the case is to be found in 3 New Reports, 409. The above statement of the facts of the case is taken from this latter report. 698 LOWNDES v. SETTLE [part ii. tion, and the vulgarity of their terms, said: Of course, the defendant has a right to assert his claim, but he insists on his right to do so by perpetually doing some mischief to the property, evidently supposing that the continuity of his claim bars the operation of the statute of limitations: whether feigned or real, such appears to be his impression; but assuming it to be honest, it is a most absurd one. The defendant has not gone into any evidence, but has put in his answer, by which (in effect) he says, " There being an injunction, while that is pending, I do not mean to do any of the acts complained of." About the facts, which, at the hearing, there is evidence to prove, there is, indeed, no dispute. It was contended, for the defendant, that assuming the truth of all those facts, the court could not, according to the law as administered by it, interfere to restrain such acts as had been threatened; and several cases were cited, although only some of the many which exist on the subject. I have thought it necessary to go through all that I have found (although I may have overlooked some) with great care, because they present a very unsatisfactory state of the law, and there is great difficulty in — I may even say an impossibility of — reconciling them. The difficulty arises (in part, no doubt) from the very considerable change which has taken place in the views of this court on the subject of granting injunc- tions to restrain injury to property, and from the fact that the court will now do what in the time of Lord Thublow^ and the earlier days of Lord Eldon, it would not have done. Lord Eldon, in the earlier part of his time, alluded to the change even then in progress, and to the facility in granting injunctions as being even then greater than in former times. The other judges subsequently advert to the continuous modifications, which in some degree also, and not unnaturally, accounts for the conflict of authorities that now exists. Another cause for such apparent conflict is, the not distinguishing the cases under certain heads. Now the proper mode of arranging them, I think, is this, — at least, it would be convenient thus to distinguish them. There should be two distinct classes of cases : the one where the party against whom the application for the injunction is made is in possession; and the other, where the plaintiff is in possession and is asking the court to protect the estate. A priori, it is obvious that the court will draw a clear distinction between the two classes of cases. If a man claims to be owner of an estate of which he either is in pos- session, or in a position tantamount to that, the court will be very slow to interfere to restrain such an apparent owner from doing those acts which an owner so situated may properly do. There is a wide difference between such a case and that of a person claiming to be owner (whatever the ground of his claim), not taking proceedings at law to recover, but coming on the owner's estate, and doing acts injurious to it. Therefore, it appears to me the cases are to be arranged imder these two heads. I hnvf fiidcavorcd to do that, but at the same time I am bound to say, tliiit llic !.'Tc;i1 (lifliculty is to ascertain which party is in possession; not- withstanding that these arc the two obvious heads (which I have men-? CHAP. I.] LOWNDES V. BETTLE 699 tioned), and having so divided them, the next thing is to discover the law of this court on the subject, so far as it can be extracted from the authorities. First, then, I may observe that, according to the older cases, a wider distinction was taken between what was then called waste and trespass. The term " waste " was used in the sense of spoliation, though with a technical and personal application. It was considered waste when the plaintiff and defendant had a privity of title, such as that of tenant for life and remainderman. If the tenant for life committed waste the remainderman could ask for an injunction. So in the case of landlord and tenant; then there was a privity, and the tenant in pos- session doing acts amounting to waste the landlord could have got an injunction. It was by reason of the privity of title that the law called it waste. But when parties did not claim in that way, but by an adverse title, any act done by the one or by the other of them was then called " trespass." That act might have been one of destruction or spoliation. That broad distinction runs through all those cases. I am not now going to consider the cases of waste, but only those of trespass, as distinguished from waste, which, in strictness, ought to be ■called spoliation, and not waste. Referring then only to cases of trespass, those ought to be ranged again under two heads, viz., the one where the defendant is in possession and the plaintiff seeks the injunction, and the other where the plaintiff is in possession and asks to restrain some acts done by the defendant who claims adversely. With respect to the cases where the defendant is in possession, of course, one can hardly conceive a jilaintiff asking for an injunction un- less on an adverse claim, each claiming to be the real owner of the estate. The earliest case under this head was that of Hamilton v. Worsefold, be- fore Lord Thurlow, which is to be found in a note of Sir Samuel Eomilly's, 10 Ves. 290. That was a case in which it could hardly be con- sidered that either party was actually in possession : perhaps the defen- dant was; but the plaintiffs had never received rent, and Lord Thurlow, after some hesitation, granted an injunction, restraining not only the de- fendant but the tenants from committing waste. Not much reliance can be placed on that case, because there may have been collusion between the defendant and the tenants, and it may be that the defendant was not in possession. Lord Thurlow at first considered it as trespass, but ulti- mately did restrain the defendant and the tenants, Reg. Book (A) 1786, fol. 1. The next case was Pillsworth v. Hopton, in 1801. There, the defendant being in possession, the plaintiff claimed under an adverse title, and Lord Eldon refused the injunction. The next case was Crockford v. Alexander, 15 Ves. 138, in 1808,- a case of vendor and purchaser, a peculiar case, and hardly in point. The plain- tiff there had contracted to sell an estate to the defendant, who obtained possession, and began to cut timber. It is difficult, therefore, to say there might have bfeen privity there. Lord Eldon says : " Although at 700 LOWNDES v. BETTLE [part ik law the defendant is a trespasser, he is in equity, by the effect of the con- tract, the owner of this estate, having taken possession under the contract, and the vendor is in the situation of an equitable mortgagee. This court has occasionally granted an injunction in cases of trespass as well as waste; and having thought much upon this subject, I will grant the protection against cutting timber, until the power of the court to grant the injunction against trespass shall be fully discussed. Lord Thurlow refused the injunction in this case: a man, possessed of two fields, de- mised one with the mines under it; the lessee found his way, working under ground, to the mines under the other field which was not demised. Lord Thurlow held that to be trespass, not waste, and did not grant the injunction. In Lord Byron's case it was destruction, not waste; there being no privity between Lord Byron and the persons who had the mill." [I shall come to speak of Lord Byron's case by and by; Lord Eldon goes on:] — "There is no difference between destruction and tres- pass where there is no privity of estate, and at law the writ of estrepement may be had to prevent repetition of waste." The report adds, that the order for the injunction was made. It is somewhat curious that Lord Eldon in other cases refers to that before Lord Thurlow, which he men- tioned in Crockford v. Alexander, but does so as if he sometimes thought Lord Thurlow had granted the injunction, at other times that he had refused it. Perhaps he did refuse it at first, but afterwards granted it. Jones V. Jones, 3 Mer. 161, was before Sir Willl\m Grant. In that case a demurrer was filed by the defendant to a bill by an heir-at-law, seeking discovery and relief, including an injunction to stay waste and destruction pending litigation. Sir William Grant allowed the de- murrer. In that case it was held that an heir-at-law out of possession could not have an injunction against a devisee in possession. Sir William Grant says, p. 173, " In Smith v. Collyer, an injunction was refused when applied for by the devisee against the heir. I own I cannot see a very good reason why the court, which interferes for the protection of personal property pending a suit in the Ecclesiastical Court, should not interpose to preserve real property pending a suit concerning the validity of the devise." The next case is that of Haigh v. Jaggar, 2 Collyer, 231. There, there was a house and land with coal under it. It did not appear that the plaintiffs were working, but the defendants were working out of their own mines into those of the plaintiffs. The latter parties brought two actions, and the Vice-Chancellor (Knight Bruce) refused the injunction, expressing dissatisfaction with the strange state of the law. The next case was Talbot v. Hope Scott. The court there stated in effect how much more reluctant it is to entertain a suit against a person in possession than where he is not. The question, " What is possession ? " is evidently of groat importance, and ought, I think, to be made the foundation of the distribution of the cases. In Neale v. Cripps an in- junction to restrain stripping timber off an estate was granted, on the CHAP. I.] LOWNDES V. BETTLE 701 ground that the acts done by the defendant in possession tended to de- struction. There were two other cases, before Sir Anthony Hart, in Ire- land, Lord Fingal v. Blake, 2 Molloy 542, and Lloyd v. Lord Trimleston, Ibid. 81, where he acted upon the same principles. Those are all the cases in which the plaintiff was out of possession, and the result of them is, that the court will refuse to interfere except where there is fraud or collusion, or where the acts perpetrated or threatened are so injurious as to tend to the destruction of the estate. T now come to the cases which resemble the present one, where the plaintiff was in possession. Those again are to be divided under two subordinate heads: first, where the defendant claims under a color of right ; and, secondly, where he is an absolute stranger. It is not easy to distinguish these cases ; the latter may be cases of mere spite : still there are such. In Mogg v. Mogg, 2 Dickens 670, the injunction was refused on the ground that the defendant was a mere trespasser, and an action would lie. In Mortimer v. Cottrell, 2 Cox 205, the injunction to stay waste was refused, because It was a case of trespass and the defendant might at law have been turned out immediately. Mitchell v. Dors, 6 Ves. 147, was a case of coal mines in work; there it was held to be trespass and not waste, and yet an injunction was granted, because being coal mines the mischief was considered irreparable. I must confess I cannot see why the mischief done in the case of coals is more irreparable than in that of trees, for in both cases the injury, -whether great or small, may be made the subject of money compensation. Courthope v. Mapplesden, 10 Ibid. 90, was a case relating to timber, where the injunction was granted, the fact being that a stranger was colluding with the tenants. In Earl Cowper v. Baker, 17 Ibid. 128, a party was restrained from taking argillaceous stones under the sea. That case was also one of a stranger. In it the mischief was considered to be irrepa- rable. The plaintiff was the lord of the manor, and his rights extended out beyond low-water mark, as far as a certain small barrel, which could be seen from the shore. Lumps of clay had formed within the limit, and had become an article of great value for particular manufactures. Great profit was derived from the sale of the article, and Lord Eldon consid- ered the damage then done to the plaintiff to be irreparable; not because it was a destruction simpliciter, but because it was a taking away of the substance of the inheritance. Great stress was laid in that case on the character of the mischief, and therefore it was that relief was given in equity, although money would have been a remuneration. I now come to the cases which more immediately resemble the present one. In this case Mr. Lowndes and his ancestors have been in possession of the property for eighty years, and the defendant claims a title, not as a mere stranger, but saying that he is the heir to the property, and that the statute is no bar, because he has removed it by having come, and by claiming to come upon the estate, and by having cut down trees as he pleased in order to assert his right. With respect to cases of this kind. Y02 LOWNDES v. SETTLE [part ir. I may observe that an injunction was granted in all cases but one; but there were elements in some of the eases which are not to be found here. Those cases are six in number: one was before Lord Camden, not reported originally, but cited in Mogg v. Mogg. No name is there given to it ; but it was a case where persons were cutting timber under color of a right to estovers. The plaintiff, who was the lord of the manor, prob- ably alleged the cutting to be beyond what was wanted for estovers ; at all events, the injunction seems to have been granted. Lord Thurlow, how- ever, said that the case did not apply to Mogg v. Mogg; for in that case (as referred to by the plaintiff's counsel in Mogg v. Mogg), there ap- peared to be a right to something in the defendants, though perhaps they carried it beyond what such right went to ; and that until such right was determined, it was very proper to stay them from doing an act which, if it turned out that they had no right to do, would be irreparable. But in Mogg V. Mogg the defendant had no interest; he was a mere trespasser. As such, an action of trespass would lie against him; and therefore Lord Thurlow would not grant the motion. It was not, as I take it, because the mischief might not have been capable of compensation, but because it was a destruction of part of the inheritance. In the case of Robinson v. Lord Byron, 1 Bro. C. C. 588, the plaintiff was in possession of his own water mill. The defendant was the owner of the stream above the mill, and in order to vex the plaintiff, sometimes kept back water from the mill, and sometimes deluged it with water. In that case it was difficult to say which was in possession; but Lord Byron was restrained from so using the stream as to do mischief to the plaintiff's mill. In Smith v. Collyer the injunction was refused by Lord Eldon, because it was a case of tres- pass. There infants were in possession by their guardian, and the de- fendant claimed as heir. Lord Justice Knight Bruce, in Haigh v. Jag- gar, hesitated to say that Lord Eldon was wrong in Smith v. Collyer. He was not satisfied that in Ihe same circumstances the court would not now grant an injunction; and he referred to the change which had taken place in the law on the subject. Grey v. The Duke of Northumberland, 13 Ves. 236, was a case of copyhold ; and there an ex parte injunction was. granted to restrain the opening of a mine. The defendant claimed as lord of the manor ; and Lord Eldon on motion to dissolve the injunction, 17 Ibid. 281, said he would do so, unless some means of producing a speedy trial of the right at law could be insured. Kinder v. Jones was also a case of the lord of a manor, the subject-matter of the suit being trees. There Sir Wh.lia.m Grant, sitting for the Lord Chancellor, granted the injunction. The last case on this head is Thomas v. Oakley, 18 Ibid. 184. The defendant there having the right, as an easement, of tak- ing stone from the plaintiff's quarry for building and other purposes on a c(!rtiiin part of his own estate, took stone for the like purposes on other parts of his estate. The plaintiff filed his bill for an injunction and an account. The defendant demurred, and the demurrer was overruled on the ground Ibat the defendant was subtracting from the inheritance. In CHAP. I.] LOWNDES V. BETTLE 70a all those cases (except Smith v. Collyer), where the plaintiff was in pos- session and the motion was made for an injunction to restrain the de- fendant, who claimed under an adverse title, the injunction was granted. Many other cases might be referred to containing dicta which tend to show the continually increasing feeling and opinion among the learned judges, of the impropriety of preserving the distinction between trespass and waste, and the injustice of refusing to interfere in all cases of tres- pass. ' But I have now to consider what the court is to do in this case, where the plaintiff is in possession, as it seems lawfully, and is asking for an injunction to restrain the defendant who is out of possession, but who claims a title (however incapable it may be of being supported) as heir-at- law to the property. He has also given notice that whenever it suits his convenience he will cut down trees, cut sods, etc., and he has reminded the plaintiff of twelve trees cut down by him or his family on a former occasion, which is as much as to say that he will do the same thing again. If a person desires to do a certain act for the purpose of asserting a right, or keeping alive a claim, this court will not restrain him from doing the act if it is necessary to his title, and for his benefit, but nothing ^an be more absurd than the notions, not to say the delusion of the de- fendant; he has only to refer to any lawyer, who would say to him, " How can you do any good by cutting down trees ? " etc. ; but his own opinion was, that although the plaintiff has an eighty years' title, he had a right to the property as heir. Then, again, even assuming that he is the heir, and means to show his title, he has not shown it. No doubt, under the old rule, his acts would have been tantamount to a trespass. He might, as it is, come on the land and do irremediable damage, incapable of being compensated by money. He might injure the most valuable and orna- mental trees, the cost of which could not be compensated for by money. The question, then, would be, whether such acts were against his con- science ? That would be the test. It appears to me that the case comes tinder the head of "irremediable waste," as defined by Lord Eldon, that is, a destruction of the substance of the inheritance; and I think it comes within the cases in which the plaintiff being in possession and the defendant not, an injunction has been granted. I think, therefore, that "under the circumstances, and having regard to what appears to me to he the constant tendency of the decisions upon the subject, viz., to break •down the unreasonable distinction between trespass and waste, that this ■is a case in which the injunction ought to be granted. I have gone into this case at great length, because of the difiiculty of finding the principle upon which to act ; I should say, however, that it is this: where a defendant is in possession, and a plaintiff claiming posses- sion seeks to restrain him from committing acts similar to those here complained of, the court will not interfere, unless, indeed (as in Neale v. Cripps), the acts amount to such flagrant instances of spoliation as to justify the court in departing from that general principle. Where the 704 ERHARDT v. BOARO and others [part ii. plaintiff is in possession, and the person doing the acts complained of is an utter stranger, not claiming under the color of right, then the ten- dency of the court is not to grant an injunction, unless there are special circumstances, but to leave the plaintiff to his remedy at law, though "where the acts tend to the destruction of the estate, the court will grant it. But where the person in possession seeks to restrain one who claims by an adverse title, the tendency of the court will be to grant the injunction, at least when the acts done either do or may tend to the destruction of the estate. I am of opinion, therefore., that this injunction must be made I)erpetual. ERHARDT v. BOARO and others. In the Supreme Court of the United States, 1885. [113 United States 537.] The facts which make the case are stated in the opinion of the court. Mr. Elihu Root for appellant. Mr. T. M. Patterson and Mr. C. S. Thomas for appellees submitted on their brief. Mr. Justice Field delivered the opinion of the court. This is a suit in equity ancillary to the action for the possession of the mining claim just decided. It is brought to restrain the commission of waste by the defendants pending the action. The bill sets forth the discovery by one Thomas Carroll, a citizen of the United States, while searching on behalf of himself and the plaintiff, also a citizen, for valu- able deposits of mineral on vacant unoccupied land of the United States, of the outcrop of a vein or lode of quartz and other rock bearing gold and silver in valuable and paying quantities, the posting by him in his name and that of the plaintiff, at the point of discovery, of a notice that they claimed 1,500 feet on the lode, the intrusion of the defendants upon the claim, their ousting the locators, and other facts which are detailed by the record in the case decided, and the commencement of the action at" law. It also alleges that the defendants were working the claim, and had extracted from it one himdred and fifty tons, or thereabouts, of ore, con- taining gold and silv^or of the value of $25,000, and that about one hun- drc(l tons remain in their possession on the premises. The bill prays for a writ of injunction restraining the defendants from mining on the <']aim, or extracting ore therefrom, or removing any ore already extracted, until the final d(!termination of the action at law. The principal facts stated in the bill are supported by affidavits of third parties. The court |?ranted a preliminary injunction, but, after the trial of the action at law, judgment being rendered therein in favor of the defendants, it CHAP. I.] EEHAEDT v. BOARO and others 705 dissolved the iiijiiiictioii and dismissed the bill. From the decree of the court the case is brought here by appeal. It was formerly the doctrine of equity, in cases of alleged trespass on land, not to restrain the use and enjoyment of the premises by the de- fendant when the title was in dispute, but to leave the complaining party to his remedy at law. A controversy as to the title was deemed sufficient to exclude the jurisdiction of the court. In Pillsworth v. Ilopton, 6 Vesey, 51, which was before Lord Eldon in 1801, he is reported to have said that he remembered being told in early life from the bench "that if the plaintiff filed a bill for an account and an injunction to restrain waste, stating that the defendant claimed by a title adverse to his, he stated himself out of court as to the injunction." This doctrine has been greatly modified in modern times, and it is now a common practice in cases where irremediable mischief is being done or threatened, going to the destruction of the substance of the estate, such as the extracting of ores from a mine, or the cutting down of timber, or the removal of coal, to issue an injunction, though the title to the premises be in litiga- tion. The authority of the court is exercised in such cases, through its preventive writ, to preserve the property from destruction pending legal proceedings for the determination of the title. Jerome v. Ross, 7 Johns. Ch. 315, 332 ; Le Roy v. Wright, 4 Sawyer, 530, 535. As the judgment in the action at law in favor of the defendants has been reversed, and a new trial ordered, the reason which originally existed for the injunction continues. The decree of the court below must, therefore, be reversed, and the cause remanded, with directions to restore the injunction until the final determination of that action ; and it is so ordered.' *In Griffith v. Hilliard, 1890, 64 Vt. 643, 645, Stakt, J., after citing and following the principal case, said: "When it appears that the title is in dispute, the court may, in its discre- tion, issue a temporary injunction and continue it in force for such time as may be necessary to enable the orator to establish his title in a court of law, and may make the injunction perpetual when the orator has thus established his title ; or the court may proceed and determine which party has the better title ; or it may dismiss the bill and leave the orator to his legal remedy. Bacon v. Jones, 4 Mylne & Craig 433; The Duke of Beaufort v. Morris, 6 Hare 340; Campbell v. Scott, 11 Simons 31; Kerr on Injunctions, 209; Ingraham v. Bunnell et al., 5 Met. 118; Rooney v. Soule, 45 Vt. 303; Wing, Admr. v. Hall et al., 44 Vt. 118; Lyon v. McLaughlin, 32 Vt. 423; Hastings, Admr., v. Perry et al., 20 Vt. 278; Barnes v. Dow, 59 Vt. 530; Barry v. Harris, 49 Vt. 392." The form of a decree so framed to do justice alike to plaintiff and defendant is that of Judge Goff, in Wood v. Braxton, 1892, 54 P'ed. R. 1005, 1010. 706 WILLIAMS v. N. Y. C. R. R. CO. [part ii. WILLIAMS V. THE NEW YORK CENTRAL RAILROAD CO. In the Court of Appeals of New York, 1857. [16 New York 97.] Selden, J.' This is a suit in equity, the object of which is to obtain a perpetual injunction, restraining the defendants from continuing to use and occupy with their railway a portion of a certain highway or street in the village of Syracuse, known as Washington street, and to recover damages for its past occupation. Washington street was gratuitously dedicated to the use of the public by the plaintiff and others, through whose land it was laid; and the Utica and Syracuse Railroad Company, to the rights and liabilities of which the defendants have succeeded, constructed their railway upon it without making any com- pensation to the plaintiff, and without his consent. At the time the track was laid the plaintiff was the owner of a large number of lots fronting upon the street, a portion of which he has since sold, with a reservation of his claim against the railroad company for damages, and a portion of which he still owns. The damages which have accrued, both upon the sold and unsold portions of the premises, are claimed in this suit. It is conceded that, by the dedication, the public acquired no more than the ordinary easement or right to use the premises as a highway; and that the plaintiff continues the owner in fee, in respect to the unsold lots, to the center of the street, subject only to this easement. I concur with the learned chief justice, and have no hesitation in com- ing to the conclusion that the dedication of land to the use of the public as a highway is not a dedication of it to the use of a railroad company; that the two cases are essentially different; and that, consequently, a railway cannot be built upon a highway without compensation to the owners of the fee. It follows that the defendants, in constructing their road upon Wash- ington street without the consent of the plaintiff, and without any appraisal of his damages or compensation to him in any form, were guilty of an unwarrantable intrusion and trespass upon his property, and that he is entitled to relief. Although he had a remedy at law for the trespass, yet, as the trespass was of a continuous nature, he had a right to come into a court of equity, and to invoke its restraining power to prevent a multiplicity of suits, and can of course recover his damages as incidental to this equitable relief. There may be doubt as to his right to recover in this suit the damages upon the lots which have been sold; because, as to those lots, there was no occasion to ask any equitable relief, and to permit the damages to be assessed in this suit, in effect dejjrives the defendants * Only HO much of the opinion is given as relates to the right to an injunction. CHAP. I.] HENDERSON v. N. Y. C. R. R. CO. Y07 of the right to have them assessed by a jury. But as this question has not been raised, it is unnecessary to consider it. The judgment must be reversed, and there must be a new trial, with costs to abide the event. ^ , , , • t i , Judgment reversed and new trial ordered. On the third trial of the ease then called Henderson v. The New York Central R. R. Co. the referee ordered judgment in favor of the plaintiffs, successors in interest of the original party, for $19,508.79 damages, be- sides, costs, and further ordered that if the plaintiffs tender to the defendants a conveyance of their interest in the land in question, in said street, and a release of their damages, except said sum of $19,508.79, the defendants shall pay to the plaintiffs the further sum of $4,339.43 and interest from the date of the report ; and in default of such payment, the defendants shall be perpetually enjoined from using such portions of said street, and if the plaintiffs fail to make such tender, the injunction is denied. On this, the second appeal in the action now entitled Henderson v. N. Y. Central R. R. Co., 1879, 78 N. Y. 423, Danforth, J., delivered the opinion of the court as follows :^ " The relief sought is : First, damages. Second, an abatement of the use of the railroad, and a removal of the track. Third, an injunction against the running of trains, or if the defendants are permitted to use the track to do so only on condition that the plaintiff shall first be paid his damages. The amount of the depreciation is stated, and the allowance of this item, and the admission of evidence relating to it, presents one of the principal questions before us. The other arises upon the conclu- sion of the referee that if the plaintiffs shall, within a time limited, tender to the defendant a conveyance of all the interest which Williams at the time of his death had in the land lying in front of the lots above referred to, and on which the defendant's road is located, and release the defendant from all claim from damages arising from the location, construction, and use of its railroad in said street (except the damages above referred to), then the defendant shall pay the plaintiffs the further sum of $4,339.43, and interest from the date of the report, or in default of such payment the defendant shall be enjoined from using said rail- road upon the land in front of the lots specified. As to the question last stated, the case is plainly for the plaintiffs. Equitable relief is awarded, not as the defendant's counsel claims by way of menace, or as a means of compelling the payment of money, but that the defendant may desist from the unauthorized use of the plaintiff's property, and forbear from any further interference with their rights. To hold otherwise would leave the citizen remediless against the power of a corporation to acquire and use property without compensation, and to prevent that, the court ought not to be reluctant to exercise its juris- diction. The facts in this case show that the entry upon the land in * Part of the opinion citing and discussing authorities is omitted. 708 HENDEKSON v. N. Y. C. R. R. CO. [part ii. Question was under the belief that the right to do so had been obtained, but it was not so, and the decree in this particular is just. The defendant is not required to pay the money. It may submit to the injunction. Nor did the referee exceed his jurisdiction in awarding it. All the issues in the action were referred to him to try and determine, and it was his duty to award the proper judgment. In the exercise of its equitable jurisdiction the court, or referee acting in its place, may give full relief, having regard to the rights and interests of both parties. It has done so in this case. In view of the annoyance and expense incident to the stoppage of the defendant's trains, it was just to open the doors of escape and permit the defendant at once to acquire title to the land occupied, and thus avoid the delay incident to other proceedings for that purpose, but it was, notwithstanding, optional with the defendant to comply with the conditions. The plaintiffs could not require it, but they would be bound by the judgment, and the defendant become, on per- forming the condition, purchaser of the land with rights not inferior to those obtained by appraisement and payment of damages under the statute. Wood v. Auburn and Rochester R. R. Co., 8 N. Y. 160. But the decision of this court upon the former appeal, Williams v. N. Y. C. R. R. Co., 16 N. Y. 97, established the plaintiff's right to an injunction, and nothing need be added upon this point. As to the other question it was also then held that the right of the plaintiff to come into a court of equity, rested upon the fact that the trespass complained of was of a continuous nature, and that he might invoke its restraining power to prevent a multiplicity of suits, and could of course recover his damages as incidental to this equitable relief. It would seem, therefore, that the plaintiff should recover in this action all his damages, for if not, then the apprehended evil would not be averted, and the defendant would be subjected to fresh litigation from day to day, and neither party be better off than if the plaintiff had resorted to the other forum; but as it is, the court has power to do com- plete justice^ and a purpose to render it must have been in the mind of the court upon the first appeal, or its language would have been qualified, and not general. McRae v. The London, Brighton, and South Coast Railway Co., 37 Law Jour. R., 1868, Eq. p. 267, was not unlike the case before us. At the time of filing the bill the plaintiffs were entitled to an injunction against the railroad company, and damages were awarded at the hearing, although no injunction was in fact obtained, and the plaintiffs' interest in the land had meanwhile determined. The railroad had taken pos- session in good faith, but without making compensation. The Chan- cellor said : " I certainly entertain the impression that on questions of this kind whore there is a doubt about the jurisdiction, or whether the court ought to interfere both for the sake of the plaintiff and the de- fendant, the court ought to stretch, rather than to narrow its jurisdiction, and that finding a question actually raised upon the pleadings which CHAP. I.] HENDERSON v. N. Y. C. R. R. CO. 709 either party has a right to have decided, it ought not to send a plaintiff who has fairly brought that question before the court to pursue his relief elsewhere," and so an inquiry was ordered as to the sum proper to be awarded the plaintiff in respect of the damages for the matters complained of in the bill. It is, however, objected that the plaintiff should have in this action no damages save for the actual trespass up to the time of bringing the action, and should by successive actions have accruing damages, for the maintenance of the railroad, subsequent to the commencement of the action, or only nominal damages for the original trespass until by the action of ejectment he has possession, and that for damages for the depreciation in value above referred to he should wait until the defendant institutes proceedings to acquire title under the statute relating to that matter. If that is so, a court of equity is powerless, the multiplicity of actions not prevented, and a new and altogether useless litigation encouraged for no good purpose. I thinlv the objections not tenable, and discover no reason for denying any relief to which the plaintiff would in any action, or before any tribunal, be entitled. The defendant has, for the purposes of its incorporation, entered upon an exclusive and permanent occupation of the land ; embedded therein its track, and is enjoying it as fully as if the right to do so had been legally secured; in that event compensation must have been made to the owner, and the two things concurring, the title of the defendant would be complete, and the owner legally satisfied. The same result should be reached in this proceeding. The parties are before the court ; they have had their day : Those matters have been passed upon which might have gone before commissioners under the statute, and for every trespass the plaintiff" may recover in this action. For that reason only was it entertained. No doubt an action might have been brought for -the original trespass, in entering and placing the railroad structures upon the land, and other successive actions for continuing it, for in such a case it is said that recovery of damages in the first action by way of satisfaction for the wrong, would not operate as a purchase of the right to continue the injury. Mahon v. N. Y. C. R. R., 24 N. Y., 658. In the case at bar the injurious consequence was single, the result of one wrongful act, and could not be divided or estimated from day to day ; it was not temporary, but permanent. The street was practically taken away so far as its uses as a street were concerned, and the injury was direct as affecting the property of the plaintiff, Beckett v. The Midland Railway Co., L. R. 3 C. P. 81, and the immediate depreciation of its value. In The Town of Troy v. The Cheshire R. R. Co., 3 Foster, 23 N. H. 83, while it was held that the plaintiff could recover only for the damages which had been sustained at the time of the commence- ment of the suit, yet it was considered that all the damages which the plaintiff had sustained, or could sustain, accrued when the defendant's road was built, and that only one recovery could be had; the court in 710 HENDEKSON v. N. Y. C. R. R. CO. [part ii. that case say : " Whenever the nuisance is of such a character, that its continuance is necessarily an injury, and when it is of a permanent character that will continue without change from any cause but human labor, then the damage is an original damage, and may be at once fully compensated, since the injured person has no means to compel the indi- vidual doing the wrong to apply the labor necessary to remove the cause of injury, and can only cause it to be done, if at all, by the expenditure of his own means," and there are other cases to the same effect. This doctrine is of little practical importance if the power of a court of equity to give damages, when it has acquired jurisdiction, is confined to cases in which the plaintiff could recover damages at law, or if it is to measure them by the same rule. It is not. In Mayne on Damages, page 465, the learned author, speaking of the assessment of damages in the Court of Chancery, says : " The damages awarded differ from those which could be obtained at law, in being given by way of comjjensation for permanent injury once for all, not as at law where successive actions may be brought, and damages recovered toties quoties." Citing the language of Lord Cransworth in Stokes v. The City OiEces Co., limited, 13 L. T. N. S. 81; and see 2 Story's Eq. Jur. § 994. In Watson v. Hunter, 5 John. Ch. 169, Chancellor Kent says : " The remedy for waste already committed is merely incidental to the jurisdiction assumed to prevent multiplicity of suits, and to save the party from resorting to trover at law," and citing Jesus College v. Bloom, 3 Atk. 262, says : " The ground for coming into chancery was to stay waste, and not for satisfaction for the damages, as the commission of waste was a tort, and the remedy at law; but to prevent multiplicity of suits, . . . the court would make a complete decree, and give the injured party a satisfaction for what had been done, and not put him to an action at law." To the same effect is Smith V. Cooke, 3 Atk. 381 ; Bird v. The W. and M. R. R. Co., 8 Richard- son Eq. 46. These views are also sustained by the decision of this court upon the first appeal. After discussing the rights of the respective parties, Selden, J., says : " It follows that the defendants in construct- ing their road upon Washington street without the consent of the plain- tiff, and without any appraisal of his damages or compensation to him in any form, were guilty of an unwarrantable intrusion, and the trespass upon his property, and he is entitled to relief," and indicating, as it seems to me, the measure of relief, the learned judge says: "Although he had a remedy at law for the trespass, yet as the trespass was of a con- tinuous nature he had a right to come into a court of equity, and to invoke its restraining power." Why? To prevent a multiplicity of suits, and can of course recover his damages as incidental to this equitable relief. And this general rule is well stated by Earl, J., in a recent case. Mad. Ave. Bapt. Church v. Bapt. Church in Oliver St., 73 N. Y. 95. " It is," he says, " the practice of courts of equity, where thoy have once f)bfained a jurisdiction of a case, to administer all the relief which the Tiaturt; of the case and the facts demand, and to bring such relief down CHAP. I.] WHEELOCK v. NOONAN Yll to the close of the litigation between the parties." Again the court as one of equity may not only render full compensation to the plaintiff, but may do it on such terms as will secure to the defendant, rights corres- ponding to those given by the statute as a consequence of proceedings to acquire the right they have wrongfully taken. It has been done in this case. If the defendant complies with the conditions of the judgment, it is protected to the largest extent in the enjoyment of the roadway, and can be no longer, or in any other action, vexed. If it does not accept the conditions and chooses to proceed under the statute, the record of this judgment will prevent the allowance of any damages for injury to the land not actually taken, or for any cause covered by its provisions, Vedder v. Vedder, 1 Denio 257, and leave the defendant liable only for those which may be assessed for the roadway. The judgment should be affirmed, with costs. All concur, except Earl, J., dissenting. Judgment affirmed. WHEELOCK V. NOONAN.' In the Court of Appeals of New York, 1888. [108 Nevj York, 179.] Printed ante, p. 94. * The doctrine of the principal case is of well-nigh universal application, and ■whether the injury sought to be enjoined is a repeated or continuous trespass equity will intervene and by a single decree right the wrong and bind the trespassers to keep the peace. A striking example of the continuing trespass is that of a railroad running its trains over land belonging to the plaintiflF. It is obvious that a right of action accrues with each passage, but the damages suffered and received will be limited to the act for which suit is brought. The plaintiff does not want damages ; he wants the trespasses stopped. This the strong arm of equity does, and having taken jurisdiction for one purpose, holds it for all. In one and the same action damages may be recovered for the trespasses as well as the injunction against the trespassers. See on this i?ubject the interesting and principal cases, Williams v. N. Y. C. R. R. Co., 1857, 16 N. Y. 97; Henderson v. N. Y. Central R. R. Co., 1879, 78 N. Y. 423 swpra; in which the Williams suit was ended after twenty years of litigation. See for other acts of trespass, for which injunctions were granted, Hodg- son V. Druce, 1856, 9 Jurist, n.s., 1014; Richards v. Dower, 1883, 64 Cal. 62, in which a defendant was properly enjoined from tunnelling under plain- tiff's land; Goodson v. Richardson, 1874, L. R. 9 Chancery App. 221, in Avhich defendant was enjoined from placing waterpipes in plaintiff's land. For a collection of authorities on trespass, and the rules regulating the granting of injunctions, see the elaborate notes in 11 Am. Dec. 497-507; 22 L. R. A. 235-238.^ 712 KING V. STUART [part il STRAWBERRY VALLEY CATTLE CO. v. CHIPMAN. In the Supreme Court of Utah, 1896. [13 Utah, 454.] Action by the Strawberry Valley Cattle Company against John I. Chipman for damages sustained by plaintiff in consequence of the tres- pass of defendant's sheep upon the land leased by the plaintiff from the Indians on their reservation at Uintah. Damages were asked for and also an injunction to prevent further injury to the grazing lands. From a judgment sustaining the validity of plaintiff's lease and enjoining de- fendant from further trespass, the latter appeals. AfRrmed. Bartch, J. The evidence tended to show that the trespass com- plained of was continued and continuing until the service upon the defendant of the restraining order, and that grass and verdure were de- stroyed, and a portion of the leased land rendered worthless for the re- mainder of the term of the lease. Where acts of trespass are repeated, continuing, and ruinous, or the damage irreparable, and a remedy at law would be inadequate, an injunction will lie. Spell. Extr. Rem. § 337; High, Inj. § 097; Lembeck v. Nye (Ohio Sup.) 24 N. E. 686; Erhardt V. Boaro, 113 U. S. 537, 5 Sup. Ct. 565; Haines v. Hall (Or.) 20 Pac. 831; Hicks v. Compton, 18 Cal. 206; Boyce's Ex'rs. v. Grundy, 3 Pet. 210. We are of the opinion that the respondent is entitled to the pos- session of the land in question, by virtue of its lease, and that there is no reversible error in the record. The judgment is affirmed. Miner, J., and Street, District Judge, concur. KING V. STUART. Circuit Court of the United States, Western Division of Virginia, 1897. [84 Federal Reports, 546.] Paul, District Judge. This is a suit brought by the plaintiff, Henry C. King, to restrain the defendants from cutting and carrying away the timber of the j)laiiitiff on certain lands claimed by him, lying in Buchanan County, Va., the same being part of a tract of 500,000 acres lying in the States of Virginia, West Virginia, and Kentucky. The phiiiitiff traces his title from a grant by the commonwealth of Vir- CHAP. I.] KING V. STUART 713 ginia to Robert Morris, dated June 23, 1795, and, through successive con- veyances to himself. The defendant II. C. Stuart demurs to the bill, and assigns as grounds of demurrer: "First. That the said plaintiff has a full, complete, and adequate rem- edy at law, and is not, therefore, entitled to relief in equity for the matters complained of in said bill. Second. The said bill is in other respects uncertain, informal, and insufficient, and for other reasons to be assigned at bar." The first ground of demurrer, viz. "that the plaintiff has a full, com- plete, and adequate remedy at law, and is, therefore, not entitled to relief in equity for the matters complained of in said bill," presents a clearly defined and important question for decision. A demurrer to a bill in equity admits the truth of the allegations of fact in the bill so far as the same are well pleaded. 1 Fost. Fed. Prac. § 108. The defendants in this cause, by their demurrer, admit that the complainant has title to the land mentioned in the bill lying within this district, and that he is in possession of the same. They likewise admit that the defendants have no title to said land ; that they are not in possession thereof. They admit that the land is wild and uncultivated; that it is heavily timbered with a valuable growth of poplar, oak, walnut, and other valuable trees, and is practically worthless for agricultural purposes; that it was purchased by the complainant solely on account of the timber; that they have, against the protest of the plaintiff, entered upon said land, and have cut down, and are preparing and threatening to remove, a large quantity of valuable walnut and other timber; that they enjoy ready facilities for re- moving the same out of the State of Virginia into the States of Ken- tucky and West Virginia. They further admit the facts upon which it is alleged that these trespasses, if permitted to continue, will result in permanent and irreparable injury and damage to the land and to the plaintiff. Admitting these facts, the defendants insist that a court of equity cannot, by injunction, prevent an actual or threatened trespass going to the destruction of the growing timber, and thereby causing irre- parable damage to the plaintiff. It has frequently been held by this court, and by the circuit court of appeals for this circuit, that, pending an action at law to try the title to land, an injunction will lie to prevent the cutting and removal of timber until the question of the title has been determined at law; that the interests of the parties should remain in statu quo pending the litigation of the title. The defendants in this cause insist that, as there is no action pending at law involving the title to the land, an injunction will not lie to prevent the destruction of timber, which the plaintiff alleges will result in irreparable injury to him. The contention of the defendants is that the plaintiff has a full, adequate, and complete remedy at law for any damage he may suffer by reason of the trespasses of which he complains ; that this remedy is an action at law for damages, to be measured by the value of the timber re- 714 KING V. STUART [part ii. moved. That this was the doctrine at common law is admitted, but that its strictness has been greatly modified by the decisions of courts of equity in England and in this country is too well established to admit of discussion. A leading case in this country on this subject is that of Jerome v. Ross, 7 Johns. Ch. 315. In this case Chancellor Kent, while closely adhering to the common-law doctrine, said: "In ordinary cases, this latter remedy (an action at law) has been found amply sufficient for the protection of property, and I do not think it advisable, upon any principle of justice or policy, to introduce the chancery remedy as its substitute, except in strong and aggravated in- stances of trespass which go to the destruction of the inheritance, or where the mischief is remediless." He further says : "I do not know a case in which an injunction has been granted to re- strain a trespasser merely because he was a trespasser, without showing that the property itself was of peculiar value, and could not well admit of due recompense, and wovdd be destroyed by repeated acts of tres- pass." As cautiously and carefully as Chancellor Kent states the law, it seems that his view of the doctrine would cover the case at bar, and entitle the plaintiff to an injunction. But the law of injunction against trespass has, since the decision in Jerome v. Ross, been relaxed and expanded until now it it held that an injunction will lie to restrain trespass whenever the injury done or threatened would result in irre- parable injury, or the defendant is insolvent. It will also be granted ■where the entire wrong cannot be redressed by one action at law for damages; this on the principle that equity will interpose by injunc- tion to prevent a multiplicity of suits. The result of the recent English and American decisions is very clearly stated in Pom. Eq. Jur. § 1357, as follows : "If a trespass to property is a single act, and is temporary in its nature and effects, so that the legal remedy of an action at law for damages is adequate, equity will not interfere. The principle determining the jurisdiction embraces two classes of cases, and may be correctly for- mulated as follows: (1) If the trespass, although a single act, is or would be destructive, if the injury is or would be irreparable, — that is, if the in- jury done or threatened is of such a nature that, when accomplished, the property cannot be restored to its original condition, or cannot be replaced by means of compensation in money, — then the wrong will be prevented or stopped by injunction. (2) If the trespass is continuous in its nature, if repeated acts of wrong are done or threatened, although fach of these acts, taken by itself, may not be destructive, and the legal reirifdy may therefore be adequate for each single act if it stood alone, tlicri also the entire wrong will be prevented or stopped by injunction, on. the ground of avoiding a repetition of similar actions. In both cases the ultimate criterion is the inadequacy of the legal remedy." CHAP. I.] KING V. STUART 715 A note to this section says : " The legal remedy is not adequate simply because a recovery of pecuniary damages is possible. It is only adequate when the injured party can, by one action at law, recover damages which constitute a complete and certain relief for the whole wrong, — a remedy virtually as efficient as that given by a court of equity. This conclusion is sustained by the concensus of modern decisions of the highest authority, although it can- not be claimed that the cases are unanimous in its acceptance." In Spell. Extr. Relief, § 14, it is said that : " Injunction will lie to prevent threatened trespass, though the dam- ages be susceptible of compensation, or otherwise there is a probability of the wrong being often repeated, and the plaintiff thereby involved in a multiplicity of suits." In Id. § 346, it is said : " Especially will relief be granted where trespass of cutting timber amounts to the destruction of the essential value of the estate in the char- acter in which it has been enjoyed." Beach, Mod. Eq. Jur. § 22 : "While, ordinarily, courts of equity will not interfere merely to redress a trespass, they will do so where the trespass is a continuing one, and a multiplicity of suits is involved in the legal remedy." Id. § 721 : " Where trespass to property is a single act, and is temporary in its nature and effects, so that the legal remedy at law for damages is adequate, equity will not interfere; but, if repeated acts of trespass are done or threatened, although each of these acts, taken by itself, may not be destructive, or involve irreparable injury, and the legal remedy may, therefore, be adequate for each single act if it stood alone, the entire -wrong may be prevented or stopped by injunction. . . . Equity will also interfere where the trespass is a continuous one, and the legal remedy would involve a multiplicity of suits." The contention of counsel for the defendants that an Injunction to pre- sent the destruction of trees is confined to trespasses which destroy groves kept for beautifying the owner's home or lands, or to shade and ornamental trees, cannot be sustained. The modern decisions apply the relief by way of injunction to coal, iron, and other mines, and to growing timber in a forest. Applying the doctrine laid down in the authorities above quoted, I find no difficulty in deciding that the temporary injunction in this cause was properly awarded, and should be perpetuated. The trespass com- mitted is not a single act, temporary in its nature, and such as might be compensated for by a single action for damages, but is continuous from day to day, and, if permitted to continue, will ultimately result in the entire destruction of the valuable timber admitted to belong to the plain- tiff. The damage done the plaintiff to-day by cutting his timber is the foundation for an Action of damages. The measure of recovery, on the 716 KING V. STUART [paut ik damages laid in the writ in an action brought for this trespass will be the injury suffered by the plaintiff to the time of bringing his suit. To- morrow the defendant commits further injury by cutting other timber, thus giving the plaintiff" another cause of action, and requiring him to bring another suit, if he is to be remitted to his remedy at law ; for it is not to be presumed that the plaintiff will stand idly by until the destruc- tion of his property is complete, and, by his acquiescence, perhaps en- danger his right of recovery of damages for the injury done him. This statement shows the multiplicity of suits to which the plaintiff would have to resort for redress, and at the same time it shows the futility of the plaintiff's reinedy at law, — a remedy which must be full, complete, and adequate. The remedy by an action at law for damages against a trespasser may have been an efficient remedy at common law. But at this day, when property of all kinds readily and easily changes hands; when a man who is solvent to-day may be insolvent to-morrow; when the ready means of transportation quickly conveys personal property from one section of the country to another, perhaps out of the jurisdiction of the courts which have been established for the protection of property rights; and when we consider the long delays that often precede a trial,^ a judgment, and execution, — ^we see how entirely inadequate is the remedy at law to secure compensation to a person whose property is destroyed by a trespasser. So far from his remedy at law being full, complete, and adequate, he may find himself, at the end of his litigation, with a naked execution in his hands, with no means for its satisfaction. In the meantime his most valuable property interests have been destroyed. The only remaining question for discussion is: Is the damage that will result to the plaintiff if the defendants are permitted to cut and carry away his valuable timber irreparable? It must be conceded that every man has a right to enjoy his own property in his own way; that he has a right to say how long he will keep it, and when and how he Avill di'spose of it. In the case of a heavily-timbered tract of land, like that of the plaintiff, it is his right to say what part of it, if any, or what particular trees or kinds of trees, he will cut, and what he will leave standing. It is rlifficult to find any kind of property that will suffer more by unrestrained trespasses, or that is more difficult to be compensated for in damages after its destruction than a forest of growing timber such as the plaintiff's. The trees are increasing in size and value from year to year; the younger trees are constantly reaching nearer the size at which they can be profitably utilized, and are constantly rendering the estate more valuable. Coal and ore, if taken from mines, may be measured as to quantity and value. They have no increasing value by reason of growth, but are of fixed ciuaiitity. Yet the removal of coal and ore from Triiii's is Ik'IiI to work irreparable damage to the property of the owner of the mi lie. Tlu! court knows of no measure of damages that could be ad'iplcd liv a jury tliat would iiroporly estimate what would be the value of a l)od,v of tiiidicr five years hence that is destroyed by a trespasser to- CHAP. I.] SOLTAU V. DE HELD 717 day. The court has no hesitancy in holdinfj^ that the destruction of the plaintiff's timber by the defendants, as they threaten to do, and were doing when restrained, would result in irreparable damage to the prop- erty of the plaintiff, and that the plaintiff is entitled to the protection of a court of equity. Section 3. Nuisance. SOLTAU V. DE HELD. In Chancery, before Lord Cranworth, V.C, 1851. [2 Simons, New Series, 133.] The plaintiff occupied a messuage as a private dwelling which adjoined a messuage used as a chapel by a religious order called "The Eedemp- torist Fathers." The plaintiff alleged that the ringing of the chapel bells at the times and in the manner practiced by the defendant rendered the occupation of the plaintiff's messuage uncomfortable and amounted to a nuisance and prayed for an injunction. The Vice-Chancellor.^ The next ground insisted upon in support of the demurrer, was that the plaintiff had not established his right at law. Now, it is true that equity will only interfere, in case of nuisance, where the thing complained of is a nuisance at law : there is no such thing as an equitable nuisance; but it is no ground of demurrer that the matter has not been tried at law. It very often is a ground for refusing an in- junction; but it is not ground of demurrer, as appears from Berkley V. Ryder, and from Lord Cottenham's judgment in Elmhirst v. Spencer, where his Lordship expresses himself thus : "The plaintiff, before he can ask for the injunction, must prove that he has sustained such a substantial injury, by the acts of the defendant, as would have entitled him to a ver- dict at law, in an action for damages." And then, in another part of the same judgment, he says : "This court will not take upon itself to adjudi' ' The balance of the ease has been omitted. "The English Court of Chancery rarely uses this process, except where the right is first established at law, or the exigency of the case renders it indispensable. Thus, in Brown's case, in 2 Vesey 414, a motion was made for an injunction to stay the use of a market, and Lord Hardwicke said it was a most extraordinary attempt, and that the plaintiffs had several remedies which he might use. He said it would cause great confusion to bring into contempt upon the injunction all persons who might use the market, and that if the Court ought to interpose at all, it would be after the title was established at law. So he observed, in another case, Amb. 209 Anon., that the Court granted an injunction to stay the working of a colliery 718 SOLTAU V. DE HELD [part u. cate upon the question whether this is a nuisance or not: that must- be ascertained in a Court of Law, as laid down by Lord Eldon in The Attorney-General v. Cleaver." Now, in The Attonery-General v. Cleaver, which was a case of public nuisance. Lord Eldon directed the in- dictment, which had been already brought and was pending, to be prose- cuted, and ordered the motion to stand over until the hearing of it. Therefore, Lord Cottenham, in that case, is referring to this; that you cannot ask for the injunction if there be a question about its being a nuisance at law. But I do not know where it is laid down that a bill will not lie, that is, that it is ground of demurrer because tlje action has not yet been brought.^ However, whether that be so or not, the plaintiff in this case has brought his action at law, and obtained a verdict. with great reluctance, and will not do it, except where there is a breach of an express covenant, or an uncontroverted mischief. In ?. late case before Lord Eldon, Attorney-General v. Nichol, 16 Vesey 338, on an information filed to restrain the defendant from obstructing the ancient lights of an hospital he stated that the foundation of this jurisdiction by injunction was that head of mischief, or those mischievous consequences, which required a power to prevent as well as to remedy, and that there might be nuisances which would support an action, but which would not support an injunction." Per Chancellor Kent in Attorney-General v. Utica Insurance Co., 1817, 2 John- son's Ch. 371, 379. For the reasons stated in the next principal case, equity prefers not to grant an injunction if the title be doubtful, or has not been established at law. White V. Cohen, 1852, 1 Drew. 312; but equity should not hesitate if the title is clear, though untried. Turner v. Mirfield, 1865, 34 Beav. 390. An interlocutory injunction should be granted irrespective of title if necessary to preserve the property. Irwin v. Dixon, 1850, 9 How. 10, citing authorities. See also Tex. & Pac. R. R. v. Interstate Trans. Co., 1894, 155 U. S. 385. The course of development in nuisance is similar to that of trespass, and the final result will doubtless be the same. ' "But after a court of equity has entertained a bill, and, instead of sending the case to be tried at law, has itself tried the questions of fact involved, and settled the legal right in favor of the complainant, it certainly would be a result much to be deprecated, if, at such a stage of the controversy, it was the law that the chancellors were required to say to such a complainant, 'your right is clear; if you sue at law you must inevitably recover, and after several such recoveries, it then will be the duty of this court, on the ground of avoid- ing a multiplicity of suits, to enjoin the continuance of this nuisance; still, you must go through the form of bringing such suits, before this court of equity can or will interfere.' In those cases in which, to the mind of the Chancellor, the rij.'lit, (if the conqilainant is clear ... so that his right to recover damages at law is indisputable, and the Chancellor has considered and established his right, I think it not possible that any authority can be produced which Hustains the doctrine contended for by the counsel of the defendant," i.e., that the plaintiff must first recover at law. Per Bkasley, C.J., in Iliggins v. Flem- ingU)n Water Co., 1883, 36 N. J. Eq. 538, 544-5. CHAP. I.] DUKE OF GRAFTON v. HILLIARD 719 DUKE OF GRAFTON v. HILLIARD. In Chancery, before Lord Chancellor Talbot, 1736. [1 Amhler (Blunt's edition), 160, note.'] Defendant had taken a building lease of some ground behind New Bond Street and the soil there being proper for that purpose he had made a very large quantity of bricks and was going to burn them upon the spot, and now the plaintiffs brought a bill suggesting it would be a very great nuisance, that the smoke would make the air very unwholesome and would spoil the houses and furniture of plaintiffs who were near neighbours, and upon the coming in of defendant's answer they moved upon the merits for an injunction to hinder the defendants from burning the bricks so near the plaintiff's houses. Defendant coming to shew cause insisted that as he had a property in the soil he might make use of it to what purpose he pleased, that by the terms of his agreement he was obliged to burn the bricks before such a particular day, which if an in- junction was granted the time would be elapsed before the cause could be heard, and so the defendant would quite lose the opportunity of burn- ing the bricks he had already made to the value of at least £500 and interest, and insisted that this was no nuisance, but if it was the parties injured had their remedy by action after their damages sustained. The Lord Chancellor recommended it to them to try it immediately in a feigned action whether it would be a nuisance or not, but defendants would not come into that, and therefore the Lord Chancellor declared that it was too much for him to determine, upon a motion, whether this would be a public nuisance or not, especially seeing how many brick kilns are now standing in all parts, and in some places almost in the heart of some of the principal streets; that if he should grant an injunc- tion and it should come out on the hearing that it was no nuisance, he could not possibly make the defendant amends, for his time for burning would be expired; and if it was a nuisance defendant would be sufficient- ly punished by actions which might be brought against him by every one of the parties that suffered any damage ; and this was not like the cases of cutting down avenues or the like, which if done no possible amends or satisfaction could be made to the parties; but here if the furniture or goods were hurt by the smoke, the sufferer would have a remedy at law; and if brick kilns were general nuisances it seemed strange that so many of them should be permitted to stand in the several quarters of this town.' * On the question of brick kilns, see the valuable and sensible case of Phillips V. Lawrence Vitrified Brick & Tile Co., 1905, 82 Pac. 787; S. C. 2 L. R. A., n.s., 92, with note collecting authorities. This case is considered by some a public, as distinct from a private, nuisance, no BATNES V. BAKER [part u. COULSON V. WHITE. In Chancery, before Lord Chancellor Hardwicke, 1743. [3 Athyns 21.] See case as printed ante, p. 679. BAINES V. BAKER. In Chancery, before Lord Chancellor Hardwicke, 1752. [3 Athyns, 750.'] A motion was made for an injunction to stay the building of a house to inoculate for the smallpox in Cold Bath Fields. Lord Chancellor: — The application is to be considered in two lights: First, Whether the thing complained of be a nuisance? Secondly, If a nuisance, whether of a public or a private nature? Now it is not settled, that a house for the reception of inoculated pa- tients is a nuisance. L^pon an indictment of that kind there hath been lately an acquittal after a trial at Rye in the County of Sussex. and has been cited as an authority that the hxw in 1730 permitted a private person to file a bill to abate a public nuisance. If the nuisance be public, it is such a precedent. Lord Eldox, however, was of the opinion that it was a private nuisance, and that it therefore was not such an authority. In The Attorney-General i\ Cleaver, 1811, 18 Ves. 211, 218, the following cases were cited before Lord Eldon: Coulson v. Wliite, Ryder v. Bentham, and The Attorney-General v. Doughty; upon which liis Lordship commented as follows: "Ryder v. Bentham is a case of private nuisance. I can find no other cases than those which have been mentioned, except The Dulord llAi.suritY, !..('., in Cowper v. Local Board of Acton, 1889, L. R. 14 Ai)p. Cas. ).").•'., 160-1. CHAP. I.] ATTORNEY-GENEEAL v. FITZSIMMONS 727 State, flinging defiance in its face, and saying to the constituted authori- ties of the State government, "we will be protected by local authorities, and you are powerless to vindicate the majesty of your laws, to preserve the good name of the State, to uphold its institutions, or to conserve its peace." The Governor has run the gamut of executive functions to find legal power or authority, lodged in him as the chief executive, to lay hold of the threatened infraction of the statutes, and by reason of the restrictive con- stitutional limitations upon his power, he could legally do nothing, with- out the aid of some court, to accomplish a proper conservation of the peace in that part of Arkansas' domain. The Attorney-General of the State for a few days preceding the day fixed for the fight was in the city of Hot Springs — on the ground — and on his return filed the bill in this •case, which was by him duly verified. He says in the bill of complaint " that in open defiance of the laws of the State, of its peace and good order, of its good name and general wel- fare, all the defendants herein, and many others whose names are to the plaintiff unknown, undertook such measures as were deemed necessary by them to bring about said fight in said Garland County, in or near said city of Hot Springs. They publicly, boldly and defiantly proclaimed that said fight would occur. They advertised the fact throughout the entire country that the fight would occur for the championship of the world, and in every way and by all means, sought to induce persons to come from all over the land to witness the fight, and openly stated that the attendance would be some fifty thousand people; that accom- modations would be made to seat that number to view the fight." He also avers in the bill "that if said fight occurs, it will seriously endanger the lives of the participants who are gifted with extraordinary strength and skill, fight for a very large stake, as well as for the cham- pionship of the world, and entertain feelings of intense hostility towards each other. That it will bring together from all parts of the country a lawless, violent, turbulent and dangerous assemblage of many thousand of persons, and will cause riots and affrays, seriously endangering the safety of many others, to the prejudice of the good name and general welfare of the State. That the assemblage and fight contemplated would constitute a public nuisance, which would endanger not only the lives of persons not engaged or participating in it, but property generally; and if the Governor of the State exercises his power to call out the militia, its efforts to prevent the fight will be resisted and many persons will be injured, perhaps killed, as defendants, their aiders and abettors, now declare." However, we need not resort to any consideration of a public necessity to maintain the laws and dignity of the State, nor to that principle of equity jurisprudence, that courts of chancery will intervene to prevent a multiplicity of suits, to sustain the jurisdiction of the court over the sub- ject-matter of this action. While conceding that courts of equity have 728 ATTORNEY-GENERAL v. FITZSIMMONS [part ii. no power to enforce the criminal statutes of the State, and no jurisdiction to enjoin the commission of crimes ordinarily, yet where the crime arises from, or is a constituent part of a public nuisance, they should not fail to exercise their extraordinary powers to abate the nuisance ; and in doing this, they may, by proper orders, prevent the commission of the crime. Vice-Chancellor Shadwell so thought when he delivered his opinion in Attorney-General v. R. Co., 4 De G. & S. 75. The case of Columbia Athletic Club v. State, 28 L. R. A. 727, from which a number of quotations have been made, and in which several cases cited in this opinion are used, was one instituted to enjoin an athletic association from "pulling off" an industriously advertised prize fight, and to put the property of the association in the hands of a receiver. The Chief Justice, who delivered the opinion of the court, affirmed the judg- ment of the lower court in making the injunction perpetual, and going a step farther than I have gone in this case, by appointing a receiver to take charge of the club house and grounds of the association, in order to prevent the fighting of the pugilists, says : " It would be monstrous to adjudge that, because acts constituting the abuse of corporate privileges are crimes, therefore the corporation may persist in doing them. This would be to encourage corporations to perpetuate the gravest abuses, since, under such a rule, the graver the abuse the less the power of the civil branch of our law. It comes with an ill grace from a corporation to aver that, because the abuse of its corporate privileges consist of com- mitting crime, civil remedies are unavailable. It would outrage common sense unspeakably to give ear to a corporation defending itself against a civil preceeding by asserting its own infamy and insisting that redress can only be had under the laws punishing the crimes." A like conclu- sion was reached in Massachusetts, in the case of Carleton v. Rugg, 149 Mass. 550, 5 L. R. A. 193, the language of the court being: " The fact that keeping a nuisance is a crime does not deprive a court of equity of the power to abate the nuisance." See, also, Morawetz Priv. Corp., par. 1043. . . . " Judge Brkwer, in re Petition of Debs, 158 U. S. 564, for the Supreme Court of the United States, says: The jurisdiction of the court of chancery with regard to public nuisances is founded on the irreparable damage to individuals, or the great public injury which is likely to ensue. 3 Daniell's Ch. Pr. 3d ed., Perkin's, 1740. Indeed, it may be affirmed that in no well-considered case has the power of the court of ccjuity to interfere by injunction in cases of public nuisance been denied, the only denial ever being that of a necessity for the exercise of that juris- diction under the circumstances of that particular case. Story's Eq. Jur. par. 921, 923, 924; Pomeroy's Eq. Jur. par. 1349; High on Injunc- tions, par. 745 and 1554; 2 Daniell's Ch. PI. and Pr. 4th ed., p. 1G3G." That the complainant filed by the Attorney-General in this case alleges facts which fonstitute a menace to the lives of citizens, with destruction of their proix-rty, the disturbance of the peace and tranquility of the CHAP. I.] COOSAW MINING CO. v. SOUTH CAROLINA 729 community, the general welfare and reputation of the State, and a great public nuisance, calling for the exercise of all the legitimate powers of this court to abate and prevent the consummation of the threats alleged in the bill, I think, is not open to question. . . . Recurring to the remedy, I find that in cases of public nuisances, it must be either preventive or punitive, the one accomplished by injunc- tion, and the other by an indictment on behalf of the public. The most efficient, humane and flexible remedy is that of injunction. Under this form the court can prevent that from being done which, if done, would cause a nuisance; it can command an observance of peace before it is broken; it can save suffering, and sometimes disgrace, to those who are in no way responsible; in some instances, and I believe this case presents one of them, it can secure an obedience to the laws of the country that a court of law, pursuing the other remedy, could not do. My conclusions are : (1) That jurisdiction over the persons of such of the defendants as voluntarily came into Pulaski County, and were summoned here, is given by the statute quoted in this opinion ; (2) That the complaint charges such a state of facts as constitute a public nuisance in the eyes of the laws of this State; (3) That the demurrer admits the material allegations of the com- plaint to be true; (4) That a court of equity has ample jurisdiction to prevent, or abate by injunction, a public nuisance, in a civil action instituted by the sovereign on the relation of her Attorney-General ; (5) That the power to prevent or abate the nuisance involves the jurisdiction to make all orders that may be necessary, and that of a pre- ventative character, to effectuate the orders for prevention or abatement ; and this involves the jurisdiction to enjoin the commission of a crime which inheres in, or constitutes a part of the nuisance. COOSAW MINING CO. v. SOUTH CAROLINA. In the Supreme Court of the United States, 1891. [144 United States 550.] This suit was brought by the appellees, March 23, 1891, in one of the courts of South Carolina, and, subsequently, on the petition of the appel- lant, the defendant below, was removed into the Circuit Court of the United States. 45 Fed. Rep. 804. Its object was to obtain a decree en- joining the Coosaw Mining Company, its servants, agents and employees, from claiming any right, title, interest or grant in or to the phosphate 730 COOSAW MINING CO. v. SOUTH CAROLINA [part ii. rock and phosphatic deposits in Coosaw River in that State; from digging, mining or removing such rock and deposits in the bed of that river; and from obstructing by suit or otherwise any agent or other per- son, acting by authority of the State Board of Phosphate Commissioners, from digging, mining and removing the same. The grounds of equity jurisdiction in such cases as the one before us are, substantially, those upon which courts of equity interfere in cases of waste, public nuisance and purpresture.^ The case of the United States v. Gear, 3 How. 120, 121, 123, bears upon this question. The United States, claiming to be the owner of cer- tain lands upon which there was a lead mine, brought an action of trespass quare clausum fregit against the party in possession. They also brought a suit in equity for an injunction to stay waste. This court held, in the equity case, that digging ore from lead mines upon the public lands was such waste as entitled the United States to a writ of injunction to restrain it. These principles are applicable to the present case. The remedy at law for the protection of the State in respect to the phosphate rocks and phosphatic deposits in the beds of its navigable waters is not so effica- cious or complete as a perpetvial injunction against interference with its rights by digging, mining and removing such rocks and deposits without its consent. The Coosaw Mining Company, unless restrained, will not only appropriate to its use property held in trust for the public, but will prevent the proper administration of that trust, for an indefinite period, by obstructing others, acting under lawful authority, from enjoying rights in respect to that property derived from the State. These con- flicting claims cannot be so effectively or conclusively settled by proceed- ings at law, as by a comprehensive decree covering all the matters in controversy. Proceedings at law or by indictment can only reach past or present wrongs done by the appellant, and will not adequately protect the public interests in the future. What the public are entitled to have is security for all time against illegal interference with the control by the State of the digging, mining and removing of phosphate rock and phos- phatic deposits in the bed of Coosaw River. Such security was properly given l)y the decree below .^ Decree affirmed. * A part of the opinion discussing other cases is omitted. "" In Georgetown v. Alexandria Canal Co., 1838, 12 Pet. 96, 97, Mr. Justice Barbour said: "It is unnecessary, however, to prosecute this inquiry, because there is a view of the subject which we think decisive of the case. Were it even admitted that the canal company had exceeded the authority under which they are acting, nevertheless, as the Potomac River is a navigable stream, a part of the jus pub- licum, any obstruction to its navigation would, upon the most established prin- ciples, be wliJit is declared by law to be a public nuisance. A public nuisance being the sul)ject of criminal jurisdiction, the ordinary and regular proceeding at law is by indictment or infoniiation, by which the nuisance may be abated. CHAP. I.] STATE V. OHIO OIL CO. 731 State v. Ohio Oil Co. (1897) 150 Ind. 21. McOabe, J.— The sub- stance of the complaint is, that for many years heretofore there has been underlying Madison, Grant, Howard, Delaware, Blackford, Tip- ton, Hamilton,' Wells and other counties in Indiana a large deposit of natural gas, utilized for fuel and light by the people of those counties and of many other counties and cities in Indiana, including Indianapolis, Ft. Wayne, Richmond, Logansport, Lafayette and others of the most populous cities of the State, to which cities the gas is conducted, after being brought through wells to the surface of the ground, by pipes and conduits, by means of which many hundreds of thousands of the people of Indiana are supplied with gas for light and fuel. The natural gas underlying the counties named, and other portions of Indiana, is con- tained in and percolates freely through a stratum of rock known as " Trenton Rock," comprising a vast reservoir in which the gas is confined under great pressure, and from which it escapes, when permitted to do so, with great force. The fuel supplied by the natural gas thus obtained is the cheapest and best known to civilization, and the value of the nat- ural gas deposit to the State and its citizens is many millions of dollars. Since the discovery of the gas deposit in 1886, vast sums of money have come into the State and have been invested in building up large manu- facturing interests, and vast sums of money belonging to the people of Indiana have been invested in similar enterprises, causing a great in- crease of population, principally in the territory underlying which gas is found. Natural gas exists in large reservoirs, or a series of reservoirs con- nected with each other, underlying the gas territory, and the diminu- tion or consumption of natural gas taken from any part of them affects or reduces correspondingly the common supply. If the gas supply is accordingly husbanded and protected it will last for many years, and con- tinue to supply the various interests named with abundant fuel, and the population, wealth, and other material interests of the State will continue to be benefited and enhanced, and the comfort, enjoyment, and happiness of the people of the State greatly increased. It is next contended that there is no authority or right of action in the State at common law, and especially that the State cannot maintain a suit in equity, either under the statute or at common law. This being a suit in equity, as the law existed prior to the adoption of the civil code of 1852, if the objection last mentioned be well taken, it is fatal to the complaint. The reason assigned in argument why the State cannot main- and the person who caused it may be punished. If any particular individual shall have sustained special damage from the erection of it, he may maintain a private action for such special damage, because to that extent he has suffered beyond his portion of injury in common with the community at large. 5 Bac. Abr. Nuisance, B. p. 51 ; 2 Ld. Raym. 1163." And see for Federal and State cases following the principal case 12 Rose, Notes on U. S. Reports 185-186. 732 STATE v. OHIO OIL CO. [part ik tain the action for an injunction is that the statute provides a different remedy, namely, the recovery of a penalty of $200.00 for each violation of the act, and a further penalty of $200.00 for each ten days during which such violation shall continue, to be recovered in a civil action in the name of the State, for the use of the county in which such well is located, with attorney's fees and costs of suit. And another remedy provided in an- other section of the act is that certain persons in the vicinity are author- ized to go upon the land where any well is situate from which gas or oil is allowed to escape in violation of the act, and shut up the same, and pack and tube said well so as to prevent the escape of gas or oil, and maintain a civil suit against the owner for the costs of such closing of said well, with attorney's fees and costs of suit. But this court has gone much further than to hold that the fact that the civil remedy given to recover penalties and the other remedies for violation of the act, does not bar the right to an injunction. In the case of the Peoples Gas Co. V. Tyner, supra, it was said : " No authority has been cited, and we know of none, supporting the position of the appellants that the appellee is not entitled to an injunction because the accumulation of nitroglycerine within the corporate limits of a town or city is a crime. It has long been settled that a private citizen may maintain an action for a public wrong if he suffers an injury peculiar to himself and not sustained by the public in general." In that case it was held that the extraordinary equitable remedy by injunction could be invoked by a private citizen, even though the act to be enjoined was made a crime by statute. The supreme court of Kansas, in State v. Crawford, 28 Kansas, 726, said : " Every place where a public statute is openly, publicly, repeat- edly, continuously, persistently and intentionally violated, is a public nuisance." The demurrer to the complaint admits that the wells of the appellee are in this category. Appellee's counsel have conceded that the pressure in gas wells since the discovery of gas in this State has fallen from 350 pounds to 150 pounds. This very strongly indicates the possibility, if not the prob- ability, of exhaustion. In the light of these facts, one who recklessly, defiantly, persistently, and continuously wastes natural gas, and boldly declares his purpose to continue to do so, as the complaint charges appellee with doing, all of which it admits to be true by its demurrer, ought not to complain of being branded as the enemy of mankind. But appellee tries to excuse its conduct on the score that it cannot mine and utilize oil under and in its land without wasting the gas. But there is nothing in the record to bear out that claim. However, if there was, it would not furnish a valid excuse. It is not the use of unlimited quanti- ties of gas that is prohibited, but it is the waste of it that is forbidden. The object and policy of that inhibition is to prevent, if possible, the ex- haustion of the storehouse of nature, wherein is deposited an element that ministers more to the comfort, happiness, and well-being of society than any other of the bounties of the earth. Even if the appellee cannot draw CHAP. I.] STATE V. OHIO OIL CO. 733 oil from its well without wasting gas, it is not denied that it may draw gas therefrom, and utilize it without wasting the oil. But, even if it can- not draw oil from such wells without wasting gas, and is forbidden by injunction so to do, it is only applying the doctrine that the owner must so use his own property as not to injure others. It may use its wells to produce gas for a legitimate use, and must so use them as not to injure others or the community at large. The continued waste and exhaustion of the natural gas of Indiana through appellee's wells would not only deny to the inhabitants the many valuable uses of the gas, but the State, whose many quasi public corporations have many millions of dollars in- vested in supplying gas to the State and its inhabitants, will suffer the destruction of such corporations, the loss of such investments and a source of large revenues. To use appellee's wells as they have been doing, they injure thousands and perhaps millions of the people of Indiana, and the injury, the exhaustion of natural gas, is not only an irreparable one, but it will be a great public calamity. The oil appellee produces is of very small consequence as compared with that calamity which it mer- cilessly and cruelly holds over the heads of the people of Indiana, and, in effect, says : " It is my property, to do as I please with, even to the destruction of one of the greatest interests the State has. and you people of Indiana help yourselves if you can. What are you going to do about it ?" We had petroleum oil for more than a third of a century before its discovery in this State, imported from other States, and we could con- tinue to do so if tlie i:)roduction of oil should cease in this State. But we cannot have the blessings of natural gas unless the measures for the preservation thereof in this State are enforced against the lawless. We therefore conclude that the facts stated in the complaint make a case of a public nuisance which the appellant has a right to have abated by in- junction, and that the complaint states facts sufficient to constitute a cause of action. Hence, the circuit court erred in sustaining appellee's demurrer to the complaint. The judgment is reversed, and the cause remanded, with instructions to overrule said demurrer, and require the defendant to answer the complaint, and for further proceedings in accordance with this opinion. 734 CORNING and others t;. LOWERRE [part ii. CORNING AND OTHERS V. LOWERRE. In THE Court of Chancery of New York, before Chancellor Kent, 1822. [6 Johnson's Chancery, 439.] Bill for an injunction to restrain the defendant from obstructing Ves- try street, in the City of New York, and averring that he was building a house upon that street, to the great injury of the plaintiff, as owners of lots on and adjoining that street, and that Vestry street has been laid out, regulated, and paved, for about twenty years. The Chancellor distinguished this case from that of the Attorney-Gen- eral V. The Utica Insurance Company, 2 Johns. Ch. Rep. 371, inasmuch as here was a special grievance to the plaintiffs, affecting the enjoyment of their property, and the value of it. The obstruction was not only a common or public nuisance, but worked a special injury to the plaintiffs. Injunction granted.' ^ In Georgetown v. Alexandria Canal Co., 1838, 12 Peters, 91, 98, Mr. Justice Barbour, speaking for a unanimous court, said: "Besides this remedy at law, it is now settled that a court of equity may take jurisdiction in cases of public nuisance by an information filed by the Attorney-General. This jurisdiction seems to have been acted on with great caution and hesitancy. Thus, it is said by the Chancellor in 18 Ves. 217 that the instances of the interposition of the court were confined and rare. He referred, as to the principal authority on the subject, to what had been done in the court of exchequer upon the discussion of the right of the Attorney-General, by some species of information, to seek on the equitable side of the court relief as to nuisance and preventive relief. Chancellor Kent in 2 Johns. Ch. 382 remarks that the equity jurisdiction in cases of public nuisance, in the only cases in which it had been exercised — that is, in cases of encroachment on the King's soil — had lain dormant for a century and a half; that is, from Charles I. down to the year 1795. Yet the jurisdiction has been finally sustained, upon the principle that equity can give more adequate and complete relief than can be obtained at law. Whilst, there- fore, it is admitted by all that it is confessedly one of delicacy, and accordingly the instances of its exercise are rare, yet it may be exercised in those cases in which there is imminent danger of irreparable mischief before the tardiness of the law could reach it. "The court of equity, also, pursuing the analogy of the law that a party may maintain a private action for special damage, even in case of a public nuisance, will now take jurisdiction in case of a public nuisance at the instance of a private person where he is in imminent danger of suffering a special injury, for which, under the circumstances of the case, the law would not afford an adequate remedy. Amongst other cases, this doctrine is laid down in the case of Crowder v. Tinkler, 19 Ves. 616. In that case, page 022, the Chancellor says: 'Upon the question of jurisdiction, if the CHAP. I.] DEMPSIE V. DAELING et al. 735 DEMPSIE V. DARLING et al. In the Supreme Court of Washington, 1905. [81 Pacific Reporter 152.] Dunbar, J. The complaint in this case alleged, in substance, that the appellant owns a parcel of vacant ground in the City of Spokane ; that contiguous to this ground is a house and lot owned by the respondent, Philadelphia Securities Company; that the house has three stories; that the respondent Philadelphia Securities Company for a long time has been and is renting the second and third stories of the house to respon- dent F. L. O. Dai'ling as and for a house of ill-fame, and for the pur- pose of enabling her, as proprietress, to conduct a house of prostitution therein, and to enable her to have and harbor therein prostitutes and lewd and abandoned women for the purposes of prostitution ; that pursuant to said purpose the said respondent F. L. O. Darling has been and is con- ducting a house of prostitution in the second and third stories of said house, and that prostitution has been and is practiced in the second and third stories by the said proprietress and the other respondents, who are lewd and abandoned women, and reside therein ; that it is the wish and purpose of appellant to build at once upon his said vacant ground a subject was represented as a mere public nuisance, I could not interfere in this case, as the Attorney-General is not a party; and if he was a party, upon the dicta, unless it was clearly a public nuisance generally, the court would not interpose by injunction until it had been tried at law. The complaint is, therefore, to be considered as of not a public nuisance simply; but what, being so in its nature, is attended with extreme probability of irreparable injury to the property of the plaintiffs, including, also, danger to their existence; and on such a case, clearly established, I do not hesitate to say an injunction would be granted.' The principle is also distinctly asserted and acted on by Chancellor Kent in the ease of Corning v. Lowerre, 6 Johns. Ch. 439. In that case a bill was filed for an injunction to restrain the defendant from obstructing Vestry street, in the City of New York, and averring that he was building a house upon that street, to the great injury of the plaintiffs, as owners of lots on and adjoining that street; and that Vestry street had been laid out, regulated and paved for about twenty years. The injunction was granted. The Chancellor said that here was a special grievance to the plaintiffs affecting the enjoyment of their property and the value of it. The obstruction was not only a common or public nuisance, but worked a special injury to the plaintiffs. The principle, then, is, that in case of a public nuisance, where a bill is filed by a private person asking for relief by way of prevention, the plaintiff cannot maintain a stand in a court of equity unless he avers and proves some special injury." For the cases in the Federal and State courts of like holding, see note to the case last cited inx3 Rose, Notes on United States Reports, pp. 709-712. 736 DEMPSTE v. DARLING et al. [part ii. house, to be by him devoted to and occupied for some respec- table and lawful purpose; that, by reason of the conducting of a house of prostitution in the aforesaid second and third stories of said house, and the presence of prostitutes therein, any house which appellant might build upon his ground would be undesirable for any lawful use, and he could not occupy it or rent it for any lawful purpose; and that, by reason of the facts above stated, his ground is being continuously and irreparably damaged by diminution in value; and an injunction was prayed for. The respondents interposed a demurrer to the effect that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and, the appellant having refused to plead further, a final judgment of dismissal of the action was rendered in favor of respondents, from which judgment this appeal is taken. We think the court erred in sustaining the demurrer in this complaint. It is contended by the respondents, in sustentation of the action of the court, that inasmuch as the plaintiff's lot was a vacant lot, and a house had not already been built upon it which would be affected by the nui- sance complained of, the damages are therefore too remote and specula- tive; that the plaintiff has not yet built upon said lot; and that he may never do so. But the allegation of the complaint is to the effect that it is the purpose of the plaintiff to build at once upon this lot a house for the purpose of lease or rent for some reputable and lawful purpose ; and it would seem unreasonable to compel the plaintiff to wait until he had been to the expense of constructing a house, and advertising the same for rent for a reasonable time, before applying to the courts for a remedy which would necessarily, in the natural process of litigation, be delayed for a considerable length of time, thereby depriving him of a right to which he is entitled, viz., to enjoy the use of his property without hind- rance through the operation of a nuisance. It may be conceded at the outset that, when a party seeks the aid of a court of equity by injunction, he must show not only a clear legal or equitable right, but also a well- grounded apprehension of immediate injury to his rights, and that, where no necessity is shown for the injunction as a means of protection to such rights, it should not be granted. But it seems to us that the immediate injury is sufficiently set forth in the complaint under consideration. The case of Dana v. Valentine, 5 Mete. 8, cited by respondents, and which it is claimed is exactly in point, seems to us not to reach the case under consideration at all. There, it is true, the court used the following language, quoted in respondents' brief, viz. : "Upon no principle of equity can the court interpose in their favor by injunction on the defendant to desist from carrying on his trade; there being no certainty that dwelling houses will ever be erected on these premises, or, if there should be, it is uncertain when such erections may be made. To require this extraor- dinary r('li«!f. the injury complained of must actually exist, or the danger must appear to be certain and immediate, and not depending on any con- tingency. We think it therefore very manifest that these owners of va- CHAP. I.] DEMPSIE v. DAELING et al. 737 cant lots have made out no title to the interposition of a court of equity." An examination of that case, however, reveals the fact that that action was brought against the defendant both by the owners of vacant lots and by the owners of buildings adjacent to the alleged nuisance, which was the business of manufacturing soap and candles and of slaughtering cattle, and the injunction was denied on two grounds, viz. : First, that the plaintiffs, if they had been injured, had a complete and adequate rem- edy at law; and, second, that the defendant had made out a good pre- scriptive right and justification. So that in any event the complaint of the parties who owned the vacant lots would have failed under the gen- eral ruling of the court on the two propositions just above mentioned, and what was said in relation to them was purely without the case. But in any event their right to relief was denied specially upon the ground that they had a complete and adequate remedy at law, and that an action at law for the recovery of damages for the diminution of the value of their lands by the nuisance alleged was available to them; there being no certainty that any dwelling houses would ever be erected upon the premises, or, if they should be, when such erections would be made, and that equity would not reach beyond these contingencies to afford relief. But as we have before noticed, so far as the certainty of the building is concerned, and also the certainty of the time, the allegation of the complaint, which must be taken to state the truth, is to the effect that the building will be erected at once. And as to the second proposition there decidedly the court, that an action for damages was the only resort of the plaintiffs, the owners of vacant lots, that question was decided adversely to the respondents' contention by this court in Ingersoll v. Rousseau, 35 Wash. 92, 76 Pac. 513, where it was held that injunction lies to abate the maintenance of a bawdy house as a public nuisance specially injurious to plaintiff's adjoining property, used for residence purposes — the common-law remedies of indictment and action on the case being inadequate — and that this rule has not been changed by statute in this State. The above conclusion was reached after a lengthy and evidently painstaking investigation of the law and an investigation of the authori- ties, ancient and inodern, on this subject, and puts at rest the contention made by the respondents that the remedy by injunction was not open to the plaintiff in this case if the petition in other respects stated a cause of action. The respondents also cite 1 High on Injunctions, 774, where it is said by that author: "To justify a court of equity in enjoining a nuisance of the class under consideration, the person aggrieved must show to the court some actual, substantial damage, and not merely a remote, con- tingent, or prospective injury." But the preceding section discloses the class under consideration. The author there was discussing injunctions which were asked for against the operation of legitimate biisinesses, such as the burning of brick, the erection of a chandlery or of slaughter houses, or of livery stables, or the operation of limekilns or gas works — busi- 738 HARNISS et al. v. BULPITT [part ii. nesses that were in themselves lawful enterprises, which the government is anxious to foster under proper regulations and locations. But the nui- sance complained of in this case is of an entirely different character. It is degrading, immoral, indecent, and always under the ban of the law, and courts ought not to be too exacting with citizens who are asking relief from such impositions upon their rights. An examination of the other cases cited by respondents shows that they are not applicable to the facts stated in this complaint, as construed by the decision of this court in Ingersoll v. Rousseau, supra. The judgment will be reversed, with instructions to overrule the de- murrer to the complaint.' Mount, C. J., and Root, Crew, Hadley, Fullerton and Rudkin, J.J., concur. HARNISS ET al. v. BULPITT. Court of Appeal, Second District, California, 1905. [81 Pacific Reporter, 1022.] Allen, J. This is an action for damages and to procure an order for the abatement of a nuisance alleged to exist by reason of obstruction by fences at both ends of a public alley in the town of Bishop, Inyo County, this State, upon which alley plaintiffs' property abuts, by which ^ The following comment on the principal case was made in 6 Columbia Law Review, p. 56: "Since Hamilton v. Whittridge, 1857, 11 Md. 128, the courts have generally granted injunctions restraining the maintenance of such nuisances, though the question seems always to have arisen between owners of adjoining occupied houses. Blagden v. Smith, 1899, 34 Or. 394; Crawford v. Tyrrell, 1904, 128 N. Y. 341; Weakley v. Page, 1899, 102 Tenn. 178; Marson v. French, 1884, 61 Tex. 173; contra, Neaf v. Palmer, 1898, 103 Ky. 496; Anderson v. Doty, 1884, 33 Hun. 160. And the fact that land is unoccupied should not cut off relief, occupancy aflfecting merely the extent, not the right of recovery. Ruck- man V. Green, N. Y., 1876, 9 Hun 225; Busch v. Railroad Co., 1890, 12 N. Y. Supp. 85; but see Dana v. Valentine, Mass., 1842, 5 Met. 8. The courts denying the relief seem not to have distinguished between what must be shown to constitute a nuisance and what is necessary to constitute special damages, the fact of the nuisance being established. In this latter situation, mere diminution in value is sufficient special damage on which to base an injunction. High, Injunctions. § 785; and see Harrison v. Good, 1871, L. R. 11 Eq. 338. In the principal case, the maintenance of a bawdy house being a nuisance per sc, Wood, Nuisance, § 29, and tiie allegation of reduced value constituting the neccHsary special damages being admitted by the demurrer, the court properly holds that the complaint states a case for injunction." CHAP. I.] HARNISS et al. v. BULPITT 739 plaintiflFs are deprived of the free use of their propertj-, and from going from their property out upon said alley, or through the same to Church street, a public street in said town. The damages were claimed on ac- count of the depreciation in value and by reason of being deprived of the use of said alley. To the complaint a demurrer was interposed upon the grounds, first, that plaintiffs had no legal capacity to sue; and, second, that the complaint did not state facts sufficient to constitute a cause of action. The demurrer being overruled, defendant answered, denying all the material averments of the complaint other than the construction of the fences at the places designated in the complaint. The defendant further alleges that the strip of ground denominated a public alley in plaintiffs' complaint was not an alley, but the private property of defen- dant. Findings and judgment went for plaintiffs, and a decree was en- tered enjoining the defendant from maintaining such fences or obstruct- ing said alley. From the judgment defendant appeals. There being nothing apparent upon the face of the complaint as in- dicating plaintiffs' want of capacity to sue, the demurrer upon that ground was properly overruled. The principal contention of defendant presented in his points and authorities is that the complaint does not state a cause of action, because no injury is alleged different in kind from that sustained by the public at large. The nuisance complained of, being the obstruction of a public alley, is a public one. That plaintiff may have redress in a private action, it must appear by proper averment that the plaintiff will suffer some injury therefrom in its nature special and peculiar to him, and different in kind from that to which the public is subjected. Civ. Code, § 3493; Siskiyou Lumber Co. v. Eostel, 121 Cal. ,513, 53 Pac. 1118. Applying this test to the complaint, we regard it as sufficient. The allegations that ingress and egress to and from the abut- ting property owned by plaintiffs upon or through the alley is prevented by the obstruction is an allegation of an injury to a private right inci- dental to private property. The owner of property abutting upon a street or alley owns the incidental rights to ingress and egress as com- pletely as he does the property to which the rights are an incident. Brown v. Board of Supervisors, 124 Cal. 280, 57 Pac. 82. An infringe- ment upon these rights is, therefore, a private wrong. " When the alleged nuisance would constitute a private wrong by injuring property or creating personal inconvenience and annoyance for which an action might be maintained in favor of the party injured, the same is none the less actionable because the wrong is committed in a manner which would render the party liable to indictment for a common nuisance." Wesson v. Washburn Printing Co., 13 Allen, 95, 90 Am. Dec. 181 ; Lind V. City of San Luis Obispo, 109 Cal. 344, 42 Pac. 437. Appellant's final contention is that the complaint alleging that the strip of ground was a public alley, and had been so used for twenty-five years as a means of ingress and egress to and from plaintiffs' property, was an insufficient statement of fact, in that the manner in which it be- 740 GARDNER v. THE TRUSTEES [part ii. came such alley was not averred; and the finding was challenged in the same regard. There is no merit in this contention. The allegation was sufficient, and the findings support the judgment. Judgment affirmed. We concur: Gray, P. J.; Smith, J. GARDNER v. THE TRUSTEES OF THE VILLAGE OF NEW- BURGH. In the Court of Chancery of New York, 1816. [2 Johnson's Chancery 162.] The bill, which was for an injunction, stated, that the plaintiff is owner of a farm in the village of Newburgh, through which a stream of water has, from time immemorial, run, having its source from a spring in the adjoining farm of the defendant, Hasbrouck, and after entering the plaintiff's land, continues its whole course through his farm until it empties into the Hudson River. That this stream greatly fer- tilizes his fields, and, running near his house, serves for watering his cattle, and for various domestic and economical purposes. That it supplies water to a brick-yard on the farm of the plaintiff where most of the bricks used in Newburgh are made ; it also supplies a large distillery erected by him at great expense, and a churning-mill, and water for a mill-seat, where the plaintiff is about to erect a mill for grinding plaster of paris. That the trustees of the village of New- burgh, the defendants, by false representations, obtained an act of the Legislature, passed the 27th of March, 1809, to enable the said trustees to sui)ply the inhabitants of the village with pure and wholesome water. That the trustees applied to the plaintiff for leave to divert the stream, offering him a trifling and very inadequate compensation, which he ]-efused. That the said trustees, having obtained leave from the de- fendant, Hasbrouck, the owner of the stream, to use and divert the water, or a part thereof, that is, a stream one inch and a quarter in diameter, taken from a great elevation, have commenced a conduit, and threaten to divert the stream, or a great part thereof, from the plaintiff's farm. That the plaintiff is apprehensive that if this is done, there will not, in a dry season, be water sufficient even for his cattle, etc. The plaintiff, therefore, prayed an injunction to prevent the defendants from diverting the water, etc. The bill was sworn to, and the plaintiff produced several affidavits, which stated that the stream was not more than sufficient for the distillery, brick-yard, etc., of the plaintiff, and if diverted through a pipe, or tube, of the pro- CHAP. I.] GAEDNER v. THE TRUSTEES 741 posed diameter, would greatly injure, if not render the \yorks useless. One of the affidavits stated, that the whole stream would pass through a tube of one inch diameter, with a head of five feet. The Chancellor [James Kent.] — The statute under which the trustees of the village of Newburgh are proceeding, Sess. 32, ch. 119, makes adequate provision for the party injured by the laying of the con- duits through his land, and also affords security to the owner of the spring, or springs, from whence the water is to be taken. But there is no provision for making compensation to the plaintiff, through whose land the water issuing from the spring has been accustomed to flow. The bill charges, that the trustees are preparing to divert from the plaintiff's land, the whole, or the most part of the stream, for the purpose of sup- plying the village. The plaintiff's right to the use of the water is as valid in law, and as useful to him as the rights of others who are indem- nified or protected by the statute ; and he ought not to be deprived of it, and we cannot suppose it was intended he should be deprived of it, with- out his consent, or without making him a just compensation. The act is, unintentionally, defective, in not providing for his case, and it ought not to be enforced, and it was not intended to be enforced, until such provision should be made. It is a clear principle in law, that the owner of land is entitled to the use of a stream of water which has been accustomed, from time imme- morial, to flow through it, and the law gives him ample remedy for the violation of this right. To divert or obstruct a watercourse is a private nuisance; and the books are full of cases and decisions asserting the right and affording the remedy, F. N. B. 184; Moore v. Browne, Dyer 319 b; Lutterel's case, 4 Co. 86; Glynne v. Nichols, Comb. 43, 2 Show. 507; Prickman v. Trip, Comb. 231. The court of chancery has also a concurrent jurisdiction, by injunc- tion, equally clear and well established in these cases of private nuisance. Without noticing nuisances arising from other causes, we have many cases of the application of equity powers on this very subject of diverting streams. In Einch v. Resbridger, 2 Vern. 390, the Lord Keeper held, that after a long enjoyment of a watercourse running to a house and garden, through the ground of another, a right was to be presumed, unless dis- proved by the other side, and the plaintiff was quieted in his enjoyment, by injunction. So, again, in Bush v. Western, Prec. in Ch. 530, a plaintiff who had been in possession, for a long time, of a watercourse, was quieted by injunction, against the interruption of the defendant, who had diverted it, though the plaintiff had not established his right at law, and the court said such bills were usual. These cases show the ancient and established jurisdiction of this court ; and the foundation of that jurisdiction is the necessity of a preventive remedy when great and im- mediate mischief, or material injury would arise to the comfort and use- ful enjoyment of property. The interference rests on the principle of a clear and certain right to the enjoyment of the subject in question, and 742 GARDNEE v. THE TRUSTEES [part ii. an injurious interruption of that right which, upon just and equitable grounds, ought to be prevented. Anon. 1 Vern. 120 ; East India Company V. Sandys, 1 Vern. 127; Hills v. University of Oxford, 1 Vern. 275; Anon. 1 Vesey 47G; Anon. 2 Vesey 414; Whitchurch v. Hide, 2 Atk. 391 ; 2 Vesey 453 ; Attorney-General v. Nichol, 16 Vesey 338. In the application of the general doctrines of the court to this case, it appears to me to be proper and necessary that the preventive remedy be applied. There is no need, from vphat at present appears, of sending the plaintiff to law to have his title first established. His right to the use of the stream is one which has been immemorially enjoyed, and of which he is now in the actual possession. The trustees set up no other right to the stream (assuming, for the present, the charges in the bill), than what is derived from the authority of the statute; and if they are suffered to proceed and divert the stream, or the most essential part of it, the plaintiff would receive immediate and great injury, by the suspension of all those works on his land which are set in operation by the water. In addition to this, he will lose the comfort and use of the stream for farming and domestic purposes; and, besides, it must be painful to any one to be deprived, at once, of the enjoyment of a stream which he has been accustomed always to see flowing by the door of his dwelling. A right to a stream of water is as sacred as a right to the soil over which it flows. It is a part of the freehold of which no man can be disseised " but by lawful judgment of his peers, or by due process of law." This is an ancient and fundamental maxim of common right to be found in magna charta, and which the Legislature has incorporated into an act declaratory of the rights of the citizens of this State. I shall, accordingly, upon the facts charged in the bill, and supported by affidavits, as a measure immediately necessary to prevent impending injury, allow the injunction, and wait for the answer, to see whether the merits of the case will be varied. Injunction granted.' ^"The right of the riparian owner to have the stream flow by his land in its natural condition extends to the quality as well as the quantity of the water, and an upper proprietor has, prima facie, no right to so use his land or the water of the stream as to cause pollution of the latter. This right of a lower riparian proprietor to have the water come to him free from pollution is subject, however, to the right of the upper proprietor to make a reasonable use of the water; and whether a use which affects the purity of the water is reasonable in a particular case is, like the question as to excessive use, one of fact, to be determined by a consideration of the character and ordinary use of the stream, the extent of the pollution, its necessity for the purpose of making a beneficial use of the water, and the resulting injury to lower proprietors." 1 Tidany, Real Property, § 207. In tlic footnote lo the j)iiragraph quoted the student will find cited the leading autliorities, which amply support the text. CHAP. I.] SWAINE V. KAILWAY CO. 743 SWAINE V. THE GREAT NORTHERN RAILWAY COMPANY. In Chancery, 1864. [4 De Gex, Jones and Smith 211.] This was an appeal by the plaintiff from the dismissal of his bill with costs by his Honor the Vice-Chancellor Wood. The case made by the bill was in substance as follows : The plaintiff owned a house on land adjoining certain premises on which the defendant railway maintained a siding. The defendants had formerly used the siding for discharging the contents of their wagons and trucks but more recently had used it for discharging large quantities of dung and other manure, together with decomposing animal remains. In some instances this was immediately carried away and so caused no in- convience ; at other times the material had been placed in stacks or heaps and allowed to remain so for a considerable time. The plaintiff alleged that the effluvium arising from the heaps, rendered the enjoyment or occupation of his house impossible, without the greatest discomfort, inconvenience, and danger to health. The appellant asked for an injunction to restrain the respondents from using the siding, for the deposit of manure in such a manner as to in- terfere with the quiet and wholesome enjoyment by the appellant of his house and premises. The appellant, it appeared, had taken no steps to try his right against the respondents at law, nor had he moved in the suit for an interlocutory injunction. The Lord Justice Turner : But upon the facts of this case there are two points — first, whether the appellant is entitled to an injunction; and secondly, whether, if not en- titled to an injunction, he is entitled to damages in this court. I do not understand it to be contended that, if the manure was brought to the station in a proper manner, and was properly dealt with when "there, the appellant would have a case for the interference of the court. The case made by the bill and argued at the bar is this : first, that the manure was not proper manure; and secondly, that it was not removed from time to time as often as it ought to have been removed. Upon the evidence, it cannot be denied that in some instances dead dogs and cats have got into this manure — that occasionally the manure which was carried was not proper manure. Nor can it be denied that in some instances the manure has remained at the station longer than it ought to have remained. The manure is brought down ; the farmer does not send for it on the day it arrives. It must be emptied out of the trucks, and deposited in some place or other. But the real question is, whether there has been such a continued 744 LAMBTON v. MELLISH [part ii. system of carrying manure of a description not proper to be carried, and therefore prejudicial to the appellant, and such a continued system of keeping manure at the station beyond the time necessary or proper for disposing of it, as to induce the court to interfere by injunction. With reference to this point, and adliering to the opinion expressed by both Lord Cranwor'JM and myself in the case of The Attorney-General V. The Sheffield Gas Company, 1853, 3 De G. M. & G. 304, that it is not in every case of nuisance that the court will interfere by injunction; and holding that occurrences of nuisances, if temporary and occasional only, are not grounds for the interference of this court by injunction, except in extreme cases. There is not in my judgment here a sufficient case for interference. The Lord Justice Knight Bruce. I agree. LAMBTOJ^ V. MELLISH. LAMBTON V. COX. In the Supreme Court of Judicature, Chancery Division, 1894. [Law Reports [1894] 3 Chancery, 163.] The plaintiff was the lessee and occupier of a house adjoining Ashstead Common in Surrey. The premises of the defendant Mellish were about' 60 or 70 yards from the plaintiff's premises, and those of the defendant Cox were about 120 or 130 yards from the plaintiff's premises and about 100 yards from those of the defendant Mellish, and were separated from, both by a line of railway. It appeared that during the summer months a large number of school treats and assemblages of that description took place on Ashstead Common. The defendants Mellish and Cox were rival refreshment contractors who catered for visitors and excursionists to the common, and both the defendants had merry-go-rounds on their premises, and were in the habit of using organs as an accompaniment to the amusements. It appeared from the evidence that these organs were for three months or more in the summer continuously being played together from 10 or 11 A.M. till 6 or 7 P.M., and that the noise caused by the two organs was "maddening." The organs used by Mellish had been changed, and it was alleged by him that the organ in use when the motion was made was a small port- al)le hand organ making comparatively little noise. That used by Cox was a niiifh larger one provided with trumpet stops and emitting sounds whifli could \)c heard at the distance of one mile. The plaint ill now n)oved against the defendant in each action for an CHAP. I.] LAMBTON v. MELLISII 745 injunction restraining: him from playing any organs so as to cause a nuisance or injury to the. plaintiff or his family, or other the occupiers of the plaintiff's property. Chitty, J. Notwithstanding the conflict of evidence, I am of opin- ion that the plaintiff is entitled to the injunction he asks for as against the defendant in each action. A man may tolerate a nuisance for a short period. A passerby or a bystander would not find any nuisance in these organs; but the case is very different when the noise has to be continuously endured : under such circumstances it is scarcely an exaggeration to term it " madden- ing," going on, as it does, hour after hour, day after day, and month, after month. I consider that the noise made by each defendant, taken separately, amounts to a nuisance. But I go further. It was said for the defendant Mellish that two rights cannot make a wrong — by that it was meant that if one man makes a noise not of a kind, duration, or de- gree sufficient to constitute a nuisance, and another man, not acting in concert with the first, makes a similar noise at the same time, each is responsible only for the noise made by himself, and not also for that made by the other. If the two agreed and acted in combination each would be a wrongdoer. If a man shouts outside a house for most of the day, and another man, who is his rival (for it is to be remembered that these defendants are rivals) does the same, has the inhabitant of the house no remedy? It is said that that is only so much the worse for the inhabitant. On the ground of common sense it must be the other way. Each of the men is making a noise and each is adding his quantum until the whole constitutes a nuisance. Each hears the other, and is adding to the sum which makes up the nuisance. In my opinion each is separately liable, and I think it would be contrary to good sense, and, indeed, contrary to law, to hold otherwise. It would he contrary to common sense that the inhabitants of the house should be left without remedy at law. I think the point falls within the prin- ciple laid down by Lord Justice James in Thorpe v. Brumfitt, 1873, L. R. 8 Ch. 13, p. 50. That was a case of obstructing a right of way, but such obstruction was a nuisance in the old phraseology of the law. He says: "Then it was said that the plaintiff alleges an obstruction caused by several persons acting independently of each other, and does not show what share each had in causing it. It is probably impossible for a person in the plaintiff's position to show this. Nor do I think it necessary that he should show it. The amount of obstruction caused by any one of them might not, if it stood alone, be sufficient to give any ground of com- plaint, though the amount caused by them all may be a serious injury. Suppose one person leaves a wheelbarrow standing on a way, that may cause no appreciable inconvenience, but if a hundred do so, that may cause a serious inconvenience, which a person entitled to the use of the way has a right to prevent ; and it is no defence to any one person 74G EUSHMEE v. POLSUE & ALFIEEI [part ii. among the hundred to say that what he does causes of itself no dam- age to the complainant." There is in my opinion no distinction in "these respects between the case of a right of way and the case, such as this is, of a nuisance by noise. If the acts of two persons, each being aware of what the other is doing, amount in the aggregate to what is an actionable wrong, each is amenable to the remedy against the aggregate cause of complaint. The defendants here are both responsible for the noise as a whole so far as it constitutes a nuisance affecting the plaintiff, and each must be restrained in respect of his own share in making the noise. I therefore grant an interim injunction in both the actions in the terms of the notices of motion.' EUSHMEE V. POLSUE & ALEIEEI. In the Supre^me Court of Judicature, Chancery Division, 1906. [Laiv Reports (1906) 1 Chancery 234.] Appeal from the judgment of Warrington J. granting a perpetual injunction to restrain a nuisance arising from noise. The facts of the case, as shown by the evidence, were as follows : — The plaintiff was a dairyman, living and carrying on his business at No. 8 Gough Square, Fleet Street, in the City of London, — a district spe- cially devoted to printing and allied trades. Although a large printing establishment directly opposite was operated, at certain seasons of the year at night, as was also, at all times, the printing works of a daily newspaper a little further away, it was shown that no disturbance or in- convenience resulted from either of these. The defendants, owners of an adjoinintr house (separated by a party wall), previously used for printing purposes, but operated during the day only, set up a printing press which later they bc^an to operate at night. The press itself was of an improved kind, quieter, it was said, than most machines of its kind. It had always been carefully and properly worked. When first set up it was driven through the medium of a shafting fixed to the ceiling of the room; but after a complaint by the plaintiff this was altered and the machine was driven by a belt passing directly to it from the motor. Later the plain- tiff again complained, and caused a formal letter of complaint to be ' '"Supfto^f one person loaves a wlieelbarrow standing on a way, that may fausf! no approcialile inconvenience, but if a hundred do so, that may cause a serious inconvenience, wliich a person entitled to the use of the way has a right to prevent ; and it is no defence to any one person among the hundred to say tliat what he does causes of itself no damage to the complainant." Per Sir \V. M. .Ja.mks in Thorpe v. IJrumfitt, 1871, L. R. 8 Ch. App. G50, G56. CHAP. I.] RTJSHMER v. POLSUE & ALFIERI 747 written by his solicitor. No reply being made, the plaintiff issued the writ in this action agajnst the defendants for an injunction to restrain them from so working their machinery and carrying on their printing works, as, by reason of noise or otherwise, to cause a nuisance or annoy- ance to the plaintiff as lessee and occupier of the house, No. 8, Gough Square, or to his family, or to the persons inhabiting or resorting to that house. In their defence to the plaintiff's statement of claim, the defendants denied that their printing machine was being so worked as to cause a nuisance to the plaintiff, and they insisted that, as his premises were situated in the heart of a district almost entirely devoted to the printing and allied trades, he was not entitled to an injunction. At the conclu- sion of the trial, before Warrington J., he delivered his judgment, in which he commenced with the following statement of the legal principles which, in his opinion, were applicable to the case : — "The question I have to answer is whether the defendants, by working the machine in question, seriously interfere with the comfort, physically, of the plaintiff and his family in the occupation of his house according to the ordinary no- tions prevalent among reasonable English men and women: Walter v. Selfe, 4 De G. & Sm. 315, 322; and for the purpose of answering this question I am not to look at the defendants' operations in the abstract and by themselves, but in connection with all the circumstances of the locality, and in particular in reference to the nature of the trades usually carried on there, and the noises and disturbance existing prior to the commencement of the defendants' operations: Sturges v. Bridg- man, 11 Ch. D. 852, 865 ; St. Helen's Smelting Co. v. Tipping, 11 H. L. •C. 642. But if, after taking these circumstances into consideration, I find a serious and not merely a slight additional interference with the plaintiff's comfort as above defined, I think it is the duty of the Court to interfere: Crump v. Lambert, L. R. 3 Eq. 409. This seems to me to be the true result of the authorities." His Lordship then pro- ceeded to deal with the evidence, and stated the three following defiiiite findings of fact: — First, that although in the day time the plaintiff must have been subject to some noise from printing works in the im- mediate neighbourhood, no disturbance at night had been caused by noise arising from any of those sources. Secondly, that as regarded the ordinary working hours in the daytime, the plaintiff had not proved such a substantial addition to pre-existing noises as would amount to a legal nuisance. And, thirdly, that the night working of the de- fendants' machine caused a serious disturbance to the plaintiff and his family such as had not previously been experienced by them; and his Lordship held that to be a legal nuisance entitling the plaintiff to an injunction. Accordingly he granted a perpetual injunction restraining the defendants, their workmen, servants and agents from so working their machinery and so carrying on their printing works at No. 10, Wine Office Court, as by reason of noise to cause a nuisance to the plaintiff as ?48 EUSHMER v. POLSUE & ALFIERI [part ii. lessee and occupier of the adjoining house, No. 8, Gough Square, or to his family, or to the persons inhabiting or resorting to such house.' Vaughan Williams L.J., after shortly stating the object of the action and the nature of the evidence, and reading the principles stated by Warrington J., in the portion of his judgment above quoted, as being applicable to the case, proceeded : — ^ It was urged upon us by counsel for the defendants, that, if one takes these findings of the judge in conjunction with the finding at the end of his judgment — namely that, as a fact, the night work caused serious disturbance to the plaintiff and his family, and that such disturbance had not been previously experienced by them — it becomes apparent that, although the learned judge referred to the principles laid down in Walter V. Selfe, 4 De G. & Sm. 315, 322 ; Sturges v. Bridgman, 11 Ch. D. 852, 865 ; St. Helen's Smelting Co. v. Tipping, 11 H. L. C. 642, and Crump v. Lambert, L. R. 3 Eq. 409, as the principles governing the present case, and that although the passages referred to, taken by themselves, may not be inconsistent with the judgment in this case, yet, if those cases are examined, it would seem that the learned judge has not applied the principle? established by them, and that this especially appears to be so if the findings at the end of the judgment in this case are read in connec- tion with the evidence, and that if they are not so read those findings are contrary to the evidence. There are, in my opinion, considerable grounds for this conclusion. The findings of the learned judge are quite consistent with the view that the cases above referred to establish the principle that in an action for nuisance not alleged to be a public nuisance the standard of comfort to be applied — when the tribunal deal- ing with the facts asks itself the question whether the acts done by the defendants constitute a material interference with the ordinary com- fort, physically, of human existence — is the same in a district devoted to a trade carried on by traders in a particular and established manner as it would be outside such a district so devoted to a particular trade. To put it in another way, the findings of the learned judge, and his judgment, are consistent with his having taken the view that if a man lives in a district or street where there are numerous printing establishments, and a printing office is opened next door to him which, in a district devoted to the printing trade, is car- ried on in the particular and established manner of the printing trade of that district, he has ground for complaint and a cause of action for nui- sance, because to him individually there may arise serious discomfort from th(> printing operations carried on next door in a house not previously used as a printing office, or in a house not previously used for night printing. This was the argument, in fact, presented to us by Mr. Terrell as counsel for the plaintiff, who contended that on this view the finclings of the learned judge was amply established by the evidence, ' The statement of facts has been abridged. *A part only of the opinion is given. CHAP. I.] EUSHMER v. POLSUE & ALFIERI 749 which clearly shewed, in the language of Lord Romilly in Crump v. Lambert, L. R. 3 Eq. 409, which he cited, that there was a material in- terference with the ordinary comfort of human existence. I may ob- serve that I do not myself think that Lord Rom illy meant by his decision to exclude the proposition of law that in a district or street devoted to trade a different standard of comfort should be applied when answer- ing the question whether there has been a material interference with or- dinary comfort in such a district from that which would otherwise be applied; for he says, L. R. 3 Eq. 414: "The smoke of the defendants' factory has produced a completely new state of things as regards the plaintiffs house and grounds." I cannot, however, but see that these words are not inconsistent with the contention that, even in a district or street devoted to trade, if a new factory or printing-house is opened, subjecting the occupier of some house in that district or street to an amount of noise interfering materially with human comfort, this is sufficient to constitute an actionable wrong, and that the words are con- sistent with the law, namely, that the defendant in such a case could not ask to have Lord Romilly's words, "ordinary comfort of human exist- ence," qualified by the addition, "as enjoyed in this district devoted to a particular trade." But if Lord Romilly did mean this, it seems to me that his words are plainly inconsistent with these words of Lord West- bury in the St, Helen's Case, 11 H. L. C. 642, 650 : "If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade, or occupation, or business, is a material in- jury to property, then there unquestionably arises a very different con- sideration. I think, my Lords, that in a case of that description, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbours, would not apply to cir- cumstances the immediate result of which is sensible injury to the value of the property." And, further, it seems to me that Lord Romilly's words, if they are to have the above meaning, are also inconsistent with the words of Lord Cranworth in the same case, 11 H. L. C. 653, where, speaking of a case tried by him in the County of Durham as a Baron of the Exchequer, he says : "It was proved incontestably that smoke did come and in some degree interfere with a certain person; but I said, * You must look at it not with a view to the question whether, abstracted- ly, that quantity of smoke was a nuisance, but whether it was a nui- sance to a person residing in the town of Shields.' " The view that the standard of what amount of freedom from smoke, smell, and noise a man may reasonably expect will vary with the locality in which he dwells^ seems to me confirmed by the following passage in 750 KUSHMER v. POLSUE & ALFIERI [part ii. Lord Halsrury's judgment in Colls v. Home and Colonial Stores, A. C. 179, 185 : " A dweller in towns cannot expect to have as pure air, as free from smoke, smell, and noise as if he lived in the country, and dis- tant from other dwellings, and yet an excess of smoke, smell, and noise may give a cause of action, but in each of such cases it becomes a question of degree, and the question is in each case whether it amounts to a nuisance which will give a right of action." The view I have just stated is confirmed also by the judgment of Lord Hardwicke in Fish- mongers' Co. V. East India Co., 1752, 1 Dick. 163, cited by Lord Mac- xaughten and also by Lord Davey. It should also be observed that the present action is an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal dis- comfort, and not upon the ground that the alleged nuisance produces material injury to the plaintiffs property. And Lord Westbury, in St. Helen's Smelting Co. v. Tipping, 11 H. L. C. 650, draws a distinction between these cases, saying of the case, where the thing alleged to be a nuisance is productive merely of personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, that anything that discomposes or injuriously affects the senses or nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly upon the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, and which are actually neces- sary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. These observations seem peculiarly applicable to the case of a plaintiff who, as in the present case, carries on, in fact, the business of supplying milk to the persons employed in the very trade to which the district is devoted, and who gets compensation for the personal annoyance to which he is subjected when residing, for the convenience of his milk trade, in a district in which there are very few other residents. My brethren arc, I believe, of opinion that the evidence in this case, and in particular the evidence of the expert called by the plaintiff and the evidence with reference to the noise made at night by the printing ma- chines of the Daily Telegraph and of Messrs. Pardon, is not of such a character as to justify the conclusion that the learned judge, in his ulti- mate finding, in fact failed properly to apply the law as laid down in the House of Lords in St. Helen's Smelting Co. v. Tipping, 11 H. L. C. 642, and in the Court of Appeal in Sturges v. Bridgman, 11 Ch. D. 852, and acted on a view of Lord Romilly's decision in Crump v. Lambert, L. R. 3 Eq. 409, inconsistent with those decisions. I do not think I ought to differ from this conclusion or inference of fact; and, accepting this con- clusion, it would not be right to review the decision in fact of the judge who tried the case and saw and heard the witnesses. I think, however, that I ouglit to point out that, in my opinion, it would be inconsistent CHAP. I.] EUSHMEE V. POLSUE & ALFIEEI 751 with the view expressed by Lord Westbuky in St. Helen's Smeltinfi: Co. V. Tipping, 11 H. L. C. 650, in the passage I have already read, and also inconsistent with the view expressed by Tiiesiger, L.J., in Sturges v. Bridgman, 11 Ch. D. 852, to hold that the fact that night work caused a serious disturbance to the plaintiff and his family, in a locality devoted to a particular trade carried on by the traders in a particular and established manner, constituted private and actionable wrong. In Sturges v. Bridg- man, 11 Ch. D. 865, Thesiger L.J. expresses his view thus : "Whether any- thing is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circum- stances; what would be a nuisance in Belgrave Square would not neces- sarily be so in Bermondsey; and where a locality is devoted to a particu- lar trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance, judges and juries would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private or actionable wrong." Again, I do not think the fact that the noise of the defendants' printing machine was a substantial addition to pre-existing noises would amount to a legal nuisance, if such noise was only the result of carrying on the trade in the district devoted to that trade according to the particular and established manner. So to hold would, in my judgment, be to disregard the standard of comfort which a person living in such a district would have a right to expect, and, in effect, to hold, as Mr. Terrell argued, that the plaintiff in such circum- stances would have suffered a private actionable wrong, unless the de- fendant could establish a prescriptive right, which I much doubt whether he could ever do in respect of a nuisance which he could not prevent, and therefore could not acquiesce in. I do not think, to use the words of Lord Westbury, that the plaintiff would have, in such a district, a good cause of action merely " because to himself individually there may arise much discomfort from the trade carried on in " the newly-opened printing office. It may be, however, that Warrington J. did not intend by his judgment anything to the contrary of this, and that he really intended to find that the defendants' trade was not being carried on in the particular and established manner of the printing district, but caused serious dis- turbance to the plaintiff and his family by making noises in excess of those made by carrying on the trade in the particular and established manner of the trade of the district. I should not myself have arrived at this conclusion on the evidence as it appears from reading the notes, but I agree that this is not a sufficient ground for reviewing the de- cision of the learned judge if he, in fact, applied the principles estab- lished by St. Helen's Smelting Co. v. Tipping, 11 H. L. C. 642, and Sturges V. Bridgman, 11 Ch. D. 852. In my opinion this appeal should be dismissed.' ^ The concurring opinions of Lord Justices Sterling and Cozens-Hardt are omitted. \ 752 HENNESSY v. CARMONY [part ii. Hennessy v. Carmony, 1892, 50 N. J. Eq. 616.— [The plaintiff owned a house adjoining premises on which the defendant conducted dyeing works. A part of the latter's equipment was two small engines used in driving two rotary cylinders, "whizzers," in which were placed the dyed fabrics for drying, the water being driven out by centrifugal force. The rapid motion of these engines caused vibrations that, owing to a stratum of quicksand under the buildings, more or less seriously affected the plaintiff's house. The plaintiff filed his bill alleging that this vibration constituted a private nuisance.] Pitney, Vice-Chancellor. The familiar ground on which the extraordinary power of the court is invoked in such cases is that it is inequitable and unjust that the injured party should be compelled to resort to repeated actions at law to recover damages for his injury, which, after all in this class of cases, are incapa- ble of measurement ; and I presume to add the further ground that in this country limiting the injured party to such remedy must result in giving the wrongdoer a power not permitted by our system of constitutional government, viz., to take the injured party's property for his private pur- poses upon making, from time to time, such compensation as the whims of a jury may give. This ground of equitable action is of itself sufficient in those cases where the injury, though not irreparable, promises to be repeated for an indefinite period, and so is continuous in the sense that it will be persevered in indefinitely. See Ross v. Butler, 4 C. E. Gr. 302. Several matters have at various times and on various occasions been held to stand in the way of granting an injunction in this class of cases. The principal one is what may be called the ^'de minimis" — " balance of injury " and " discretion " doctrine. It has been said, and held on some 8ee note on this case in 6 Cohimbia Law Review 458. "In an action of this kind, a fundamental question is, by what standard, as against the interests of a neighbor, is one's right to use his real estate to be measured. In densely populated communities the use of property in many ways which are legitimate and proper necessajiily affects in greater or less degi'ee the property or persons of others in the vicinity. In such cases the inquiry always is, when rights are called in question, what is reasonable under the circumstances. If a use of property is objectionable solely on account of the noise which it makes, it is a nuisance, if at all, by reason of its effect ufion the health or comfort of those who are within hearing. The light to make a noise for a proper pvnpose must be measiued in reference to the degree of annoyaJice which others may reasonal)ly be required to sub- mit to. In connection with the importance of the business from which it proceeds, that nnist be determined by the effect of noise upon people generally, and not upon tliosc, on the one liand, who are peculiarly susceptible to it. or those, on the other, who by long experience have learned to endure it without inconvenience; not upon tliose whose strong nerves and robust health enable them to endure tiie greatest disturbances without suffering, nor iqion tliose whose mental or physical condition makes them painfully sensitive to everytliing about tluiii." I'cr Knowlton, J., in Rogers v. Elliott, 1888, 146 Mass. 349, 351. CHAP. I.] IIENNESSY v. CARMONY 753 occasions, that where the injury to the complainant by the continuance of the nuisance is small and the injury to the defendant by its discontinu- ance is great, the court will consider that circumstance, and if the balance is greatly against the complainant will, in the exercise of a sound dis- cretion, refuse the injunction and leave the complainant to his remedy at law. As instances in which this motion has been advanced in this State may be cited Quackenbush v. Van Riper, 2 Gr. Ch. 350; Van Winkle v. Curtis. 2 Gr. Ch. 422; Railroad Company v. Prudden, 5 E. Gr. 530, in the court of errors and appeals; and in the later case of Demarest v. Hardham, 7 Stew. Eq. 469. Demarest v. Ilardham was on final hearing, and while some expressions of the learned vice-chancellor there found standing by themselves may seem to hold that the granting an injunction on final hearing as part of the decree rests in the discretion of the chancellor, I think that, taking what was said on that topic as a whole, it does not bear that interpreta- tion.^ ^ In Demarest v. Hardham, 1881, 34 N. J. Eq. 469, 472, Van Fleet, V.C, said : "The important question presented by the case is, does the manner in which the defendant conducts his business interfere with or injure the business of the complainants to such an extent as to create a nuisance which it is the duty of a court of equity to enjoin? The defendant's business is not only lawful, but necessary. It is carried on in a part of the City of Newark devoted almost exclusively to manufacturing and business purposes. No objection can there- fore be made to it on the ground that its location is not a fit one. It is not necessarily or inherently noxious, offensive or injurious. It should not, there- fore, be enjoined except under a stern necessity. The complainants ask that it be absolutely interdicted, their prayer being that the defendant be restrained from further operating his engine and presses. To grant their prayer is to destroy the defendant's bvisiness. Power attended with such disastrous consequences should always be exercised sparingly, and with the utmost caution. All doubts should be resolved against its exercise. Attorney-Gen- eral V. Nichol, 16 Ves. 338. Relief by injunction, in such cases, is not a matter of right, but rests in discretion. If the legal right is not clear, or the injury is doubtful, eventual or contingent, equity will give no aid. Rich- ard's App., 57 Pa. St. 105; Rhodes v. Dunbar, Id. 274; Huckenstine's App., 70 Pa. St. 102. "And so, too, the court is boimd to compare consequences. If the fact of an actionable nuisance is clearly established, then the court is boimd to consider whether a greater injury will not be done by granting an injunction, and thus destroying a citizen's property and taking away from him his means of livelihood, than will result from a refusal, and leaving the injured party to his ordinary legal remedy; and if, on thus contrasting consequences, it appears doubtful whether gi'eater injury will not be done by granting than by withholding the injunction, it is the duty of the court to decline to inter- fere. Hilton V. Earl of Granville, 1 C.r. & Ph. 283. The duty of granting or refusing an injunction is a matter resting in sound discretion. It should never be granted when it will operate oppressively, or contrary to the real justic* of the case, or where it is not the fit and appropriate method of redress 754 HENNESSY v. CAEMONY [part ii. With regard to the insignificancy of the injury to the complainant, it seems to me it cannot be taken into account if it be appreciable and such as would clearly entitle him to damages at law. That consideration was urged and overruled, and with it, as I think, the balance of injury and convenience notion above stated by the court of errors and appeals in Higgins V. Water Co., 9 Stew. Eq. 538, at p. 541, which is the latest ex- pression by that court on this subject. This seems to me to settle the rule in this State. And I desire here for myself to say that I have never been able to see how the question of the right of the complainant to an injunction on final hearing could ever be a matter properly resting in the " discretion "' of the chancellor, as I understand the force of that word in that connec- tion. If by " discretion " is here meant that the judge must be discreet, and must act with discretion, and discriminate, and take into considera- tion and give weight to each circumstance in the case, in accordance with its actual value in a court of equity, then I say that that is just what he must do in every case that comes under his consideration — no more and no less. And that is the sense in which I understand the word he used in Demarest v. Hardham. But if the word " discretion " in this connec- tion is used in its secondary sense, and by it is meant that the chancellor has the liberty and power of acting, in finally settling proijerty rights, at his discretion, without the restraint of the legal and equitable rules gov- erning those rights, then I deny such power. It seems to me that the true scope of the exercise of this latter sort of discretion in the judicial field is found in those matters which affect procedure merely, and not the ulti- mate right. I have taken the trouble to examine many of the cases which seem to hold more or less the contrary of what I understand to be the rule laid down by the court of errors and api)eals in Higgins v. Water Company, and find most of them distinguishable. The majority of them are rulings upon preliminary injunctions, where the right was not yet settled, or where the injury was not a continuing one and the remedy at law ample, or, if on final hearing, there was something inequitable in the com- plainant's conduct or case which would amount to a defence in equity to- an action at law. And of the English cases, it is proper further to observe that some of under all the circumstances of the case, or when it will or may work fatal injury to the person enjoined. "The principle to be deduced from the authorities I understand to be this: That an injunction to restrain a lawful business, on the ground that it is so conducted as to render it a nuisance, should never be granted, except the complainant shows an invasion of a clear legal right, resulting in permanent and serious injury, which cannot be adccjuatcly redressed liy action at law, and that the allowance of the writ will not inflict upon the defendant a more serious injury than the complainant will sustain if the writ is denied and lie l)c left to his ordinary legal remedy." CHAP. I.] HENNESSY v. CARMONY 755 them gave damages, instead of an injunction, under the authority of the acts of Parliament for that purpose, called Lord Cairn's and Sir John Rolt's acts. The giving of damages for continuing nuisances is quite within the omnipotent power of Parliament, which is competent to take private property for private purposes. In this country, under our con- stitutional system, as before remarked, that course is forbidden. I think the language of Lord Cuanwortii, quoted by the learned chief justice in Iliggins V. Water Company, applies with increased force in this country. While the " balance of injury " notion has found frequent place in many English cases, the later and best considered of them put the rules governing courts of equity in such cases upon their true ground. Clowes V. Staffordshire Works, L. R. 8 Ch. App. 125, 142, 1-13 ; Wilts v. Water Works, L. R. 9 Ch. App. 451 ; Goodson v. Richardson, 9 Ch. App. 221, are examples. This last was a case of an injury to a bare right of property without any actual damage. Defendant had laid a water-main in a public street, the fee of which was in the complainant, and Lord Sel- BORNE held he was entitled to a mandatory injunction compelling it to remove it. Another objection taken was, that if the fact that the vibration as felt in this case is due to the presence of an underlying layer of quicksand, then the defendant should not be held responsible for it. I am unable to discover any strength in that position. I do not see how the fact that nature has provided a very convenient medium through which my neigh- bor may injure my property should be held to give him the right to injure it. I will advise a decree that the defendant be restrained from so using his machines as to cause the complainant's house to vibrate, and also from allowing the water and spray from the exhaust of his engines to come on to the complainant's lands." ^"Is the evil of such a nature as to justify the court in interfering? It is said that the defendants are about to tear up the streets to an extent, on one side represented as 70 miles, on the other as 100 miles. Take it that 100 miles of the streets are to be torn up. It may be that before the defendants complete their works they will have taken up the pavement over 100 miles, but they will never have up above 20 yards at the same time, and they will never have even that length up, they say, for above two days. That agrees with one's experience from what one observes when similar works are going on in the metropolis. They are no sooner begun than ended. "The circumstance of the works being performed in this case in a vast number of places in the course of the next two or three years, or the next year, during which time the process of laying down the pipes will be going on, does not appear to me at all to vary the case. One must look at the quantum of evil at each particular place and at each particular moment of time to determine whether this injunction ought to be granted. "It may be asked by way of illustration, why does not the court restrain persons from coming with barrel-organs through a town and disturbing the peace of the inhabitants? No doubt it would be a very serious nuisance 756 GILBEET v. SIIOWEEMAN [part ii. Gilbert v. Showerman, 1871, 23 Mich. 448. — Cooley, J. . . . Generally speaking, it may be said that every man has a right to the exclusive and undisturbed enjoyment of his premises, and to the proper legal redress if this enjoyment shall be interrupted or diminished by the act of others. The redress, if the injury is slight or merely casual, or if it is in any degree involved in doubt, should be by action for the re- covery of damages ; but if permanent in its nature, so that by persis- tence in it the wrongdoer might, in time, acquire rights against the owner, it is admissible for the court of chancery to interfere by injunc- tion, provided the injury is conceded or clearly established. Webb v. Portland Manuf. Co., 3 Sum. 189; Walker v. Shepardson, 2 Wis. 384; though the power to do so should be cautiously and sparingly exercised. Attorney-General v. Niehol, 16 Ves. 338; Rosser v. Randolph, 7 Port. 238. An offensive trade or manufacture may call as legitimately for the in- terference of equity as any other nuisance, for, as is said by Sir William Blackstoxe, though these are lawful and necessary, yet they should be exercised in remote places. 2 Bl. Com. 217; Catlin v. Valentine, 9 Paige, 675 ; Hackney v. State, 8 Ind. 494. The right, nevertheless, to have such a business restrained is not absolute and unlimited, but is, and must be in the nature of things, subject to reasonable limitations which have re- gard to the rights of others not less than to the general public welfare. One man's comfort and enjoyment with reference to his ownership of a parcel of land cannot be considered by itself distinct from the desires and interests of his neighbors, as otherwise the wishes of one might control a whole community, and the person most ready to complain might regulate to suit himself, the business that should be carried on in his neighborhood. In a crowded city some annoyance to others is inseparable from almost any employment, and while the proximity of the stables of the dealers in horses, or of the shops of workers in iron or tin, seems an intolerable nuisance to one, another is annoyed and incommoded, though in less degree, by the bundles and boxes of the dealer in dry goods, and the noise and jar of the wagons which deliver and remove them. Indeed, every kind of business is generally regarded as undesirable in the parts of a city occupied most exclusively by dwellings, and the establishment of the most cleanly and quiet warehouse might, in some neighborhoods, if a person \\\i\\ a barrel-organ or bag-pipes were to station himself under one's window all day; that would be a nuisance. But when he is going through a city, you know, he will stop ten minutes at one place and ten minutes at another, and so he will go on all day. If the one sort of nuisance cfnild be restrained, I do not see why the other could not. There is a dis- linclifin, no doubt; the one interferes with the soil, the other does not involve any interference with the soil. T do not see in point of principle that llii-< distinction makes any great difference." Per Lord Chancellor Ckanworth, in Alty. f;en. v. SliefTield Gas Consumers' Co., 18.53, 3 DeG. M. & G. 304, 336; hcv also, Harrison v. Southark and Vauxhall Water Company, 1891, L. R. 2 Ch. Div. 409. CHAP. 1.] GILBERT v. SIIOWERMAN 757 give serious offense and cause great annoyance to the inhabitants. This cannot be otherwise so long as the tastes, desires, judgments and interests of men differ as they do, and no rule of law can be just which, in en- deavoring to protect the interests and subserve the wishes of a com- plaining party, fails to have equal regard to the interests and wishes of others. The true principle has been said by an eminent jurist to be one "growing out of the nature of well ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be in- jurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property is held subject to those general regulations which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient." — Shaw^ Ch.J., in Commonwealth v. Alger, 7 Cush. 84. In the case before us we find that the defendants are carrying on a business not calculated to be especially annoying, except to the occupants of dwellings. They chose for its establishment a locality where all the buildings had been constructed for purposes other than for residence. Families, to some extent, occupied these buildings, but their occupation was secondary to the main object of their construction, and we must suppose that it was generally for reasons which precluded the choice of a more desirable neighborhood. The number of these families, moreover, was decreasing, and in view of the size of the block, was really insignifi- cant at the time this machinery was put in. Some kinds of business were then carried on in the block, which were likely to be equally offensive to adjoining proprietors with that of the defendants, and it is not shown that any complaint was made of them. In view of these facts we think it is not shown that the defendants were bound to know they were in- vading the legal rights of other persons when they established their present business, nor can we say that the evidence satisfies us that they selected an unsuitable locality for the purpose. We cannot shut our eyes to the obvious truth that if the running of this mill can be enjoined, almost any manufactory in any of our cities can be enjoined upon similar reasons. Some resident must be in- commoded or annoyed by almost any of them. In the heaviest bvisiness quarters and among the most offensive trades of every city, will be found persons who, from motives of convenience, economy or necessity, have taken up their abode ; but in the administration of equitable police, the greater and more general interests must be regarded rather than the inferior and sj)ecial. The welfare of community cannot be otherwise subserved and its necessities provided for. Minor inconveniences must 758 GILBERT v. SHOWERMAN [part n. be remedied by actions for the recovery of damages rather than by the severe process of injunction. On the whole case we are of opinion that the complainant, having taken up his residence in a portion of the city mainly appropriated to business purposes, cannot complain of the establishment of any new business near him, provided such new business is not in itself objection- able as compared with those already established, and is carried on in a proper manner. We do not find from the evidence that the business of defendants was thus objectionable, or that in the manner of conducting it there is special ground of complaint. And the decree dismissing the bill must, therefore, be affirmed with costs. But the dismissal is to be without prejudice to any proceeding the complainant may be advised to take at law. The other justices concurred.* ^ Where the occupier of lands grants a license to another to do certain acts on the land, and the licensee in doing them commits a nuisance, the occupier may be made a defendant to a suit to restrain the nuisance. White v. Jameson, 1873, L. R., 18 Eq. 303. A tenant may bring a bill to enjoin a nuisance af- fecting the demised property during his tenancy; while the landlord protects his reversion in like manner. Shelfer v. London Electric Lighting Company, 1895, 1 Ch. Div. 287. But in such a ease the landlord must show injury to the reversion as distinguished from the tenancy, Jones v. Chappell, 1875, L. R. 20 Eq. 539. "My Lords, in matters of this description it appears to me that it is a very desirable thing to mark the difference between an action brought for a nuisance on the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter, namely, the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal free- dom, anything that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must un- doubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for com- plaint, because to himself individually there, may arise much discomfort from tlie trade carried on in the shop. But when an occupation is carried on by one person in tlie neighborhood of another, and the result of that trade, or f)ccupatiori, or business, is a material injury to pro])erty, then there unques- tioniibly arises a very different consideration. 1 think, my Lords, that in a case of tliat (lesfrription, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbors, would not apply to circum- CHAP. I.] MOUNTAIN COPPER CO. v. U. S. 759 MOUNTAIN COPPER CO. v. UNITED STATES. In the United States Circuit Court of Appeals, Ninth Circuit, 1906. [142 Federal Reporter 625.] The United States, in its capacity of landowner, brings a bill to enjoin the defendant Copper company from continuing to injure and destroy the timber and other vegetation upon the complainant's land by the fumes and smoke produced in the process of roasting and burning its ores. Ross, Circuit Judge.' We have, then, the ownership in the complainant of a little over 4,000 acres of land within the damaged zone, mountainous in character, with little or no soil, practically worthless for agriculture or horticulture, upon which most of such trees and undergrowth as existed had, prior to the commencement of this suit, been killed by the fumes generated by the appellant company (for which it is, of course, liable in damages for whatever they may have been worth), and upon which but little more vege- tation of any kind remains, susceptible of destruction. In view of these facts, about which there can be no question upon the record, can it be doubted that the maximum injury that can result to the lands of the com- plainant embraced by the bill is but a mere trifle in comparison to the loss inflicted by the injunction in question upon the appellant company and those dependent upon and benefited by it ? And, such being the case, would it be a wise exercise of the sound discretion we are called upon to exercise to sustain such injunction ? We are of the opinion that it would not be, and we are not without abundant authority to sustain that position. No one, we apprehend, will contend that the smelting of copper ores is, in and of itself, unlawful. On the contrary, it has become one of the most useful and necessary employments, especially since the use of copper, in its manifold forms, has increased so enormously, to the benefit, not only of those actually producing it, but to the state, nation, and world at large. Brickmaking is also a useful and legitimate employment. In considering and deciding a case of that sort Mr. Justice Agnew, in de- livering the opinion of the Supreme Court of Pennsylvania, in Hucken- stine's Appeal, 70 Pa. 102, 106, ]0 Am. Rep. 669, said: " It, as many other useful employments do, may produce some discom- fort, and even some injury, to those near by. But it does not follow that a chancellor would enjoin therefore. The heat, smoke, and vapor of a brick kiln cannot compare with those of many manufactories carried on stances the immediate result of which is sensible injury to the value of the property." Per Lord Westbury, in St. Helen's Smelting Co. v. Tipping, 1865, 11 H. L. C. 642, 650. ^ A part only of 1^he opinion is printed. 760 MOUNTAIN COPPER CO. v. U. S. [part ii. in the very heart of such busy cities as Pittsburg and Allegheny. A court, exercising the power of a chancellor, whose arm may fall with crushing force upon the every-day business of men, destroying lawful means of support, and diverting property from legitimate uses, cannot approach such cases as this with too much caution. Its aid is not of right, but of grace, and it must be sure that the exercise of this kingly power is just, wise, and proper, before it takes from a citizen his means of livelihood, and destroys the value of his property for legitimate uses." ' In Tuttle V. Church, C. C, 5o Fed. 422, an injunction was sought to restrain the defendants from the manufacture of fish oil and fertilizers, on the ground that the smoke and offensive odors from the defendants' factory blew over the complainants' dwelling, thereby corrupting the air, destroying the comfortable and convenient use of the premises, and diminishing their value. The defendants employed 450 men in their works, and their plant was valued at $300,000. The complainants' prop- erty cost them, with improvements, $2,750, and they had offered to sell it for $3,500. Other facts are stated in the opinion in the case. Judge Colt, in refusing the injunction sought, said, among other things : " A motion for an injunction is addressed to the sound discretion of the court, guided by certain established rules. This means that the court is to consider all the circumstances of each case before it will exercise this extraordinary remedy. Among the considerations which should influence a chancellor is the relative effect upon the parties of granting or refusing the injunction. Unless the public good calls for the injunction to issue, it should not be granted where a large number of people are in favor of the acts to be restrained and no serious damage to individuals is made to appear. Where the right of law is doubtful, the ease resolves itself into a question of comparative injury — whether the defendants will be more injured by the injunction being granted, or the plaintiffs by its being withheld. In the present case the effect of an injunction, according to the evidence, will be to close the defendants' works, destroy their business, and thereby cause the loss of a large amount of invested capital, while the injury to the plaintiffs if the injunction is refused, is comparatively slight" — citing a number of cases. The nuisance complained of in Powell v. Bentley & Gerwig Furniture Co., W. Va., 12 S. E. 1085, 12 L. R. A. 53, was the noise of the factory. The court there said: " Although a court of equity in such cases follows precedent, and goes by rule as far as it can, yet it follows its own rules — and among them is the one that to abate or restrain in case of nuisance is not a matter of strict right, but of orderly and reasonable discretion, according to the right of the particular case — and hence will refuse relief and send the party to a court of law when damages would be a fairer approximation to common justice, because to silence a useful and costly factory is often ' Tho fourt here quotes from Demarest v. Hardham, 1881, 34 N. J. Eq. 4(')'J. See note to page 753. CHAP. I.] MOUNTAIN COPPER CO. v. U. S. 761 a matter of serious moment to the state and town, as well as to the owner." Indeed, that the comparative convenience or inconvenience to the parties from the granting or withholding the injunction sought should be considered, and that none should be granted whenever it would operate oppressively or inequitably, or contrary to the real justice of the case, is the well-established doctrine, and we need hardly multiply authori- ties to that effect. Amelia Milling Co. v. Tennessee Coal Co., C. C, 123 Fed. 811; Sellers v. Parvis, C. C, 30 Fed. 166; Peterson v. City of Santa Eosa, 119 Cal. 391, 51 Pac. 557; 1 Spelling on Injunctions, § 417; 2 Story's Eq. Jur. § 959 ; Kerr on Injunctions, 231. In Madison v. Ducktown Sulphur, Copijer & Iron Co., Tenn., 83 S. W. 658, it appeared that several farmers had brought suit to enjoin the operation of a copper smelting plant because of injury to their lands by the fumes. The plant was in a basin of the mountains. The com- plainants' farms were in the surrounding hills, and were far more seriously injured than have been the lands of the United States involved in the present case; for they had timber and crops which were prac- tically destroyed. In that case it was found that the defendant company was conducting its business in a lawful way, without any purpose to injure any of the complainants, and was following the only known method by which copper smelting could be successfully carried on, but was unable to dispose of the sulphurous fumes, and that there was no more remote place to which its operations could be transferred ; that the defendant employed about 2,500 men in its works, supporting about 12,000 people, whereas, before the commencement of their operations, the popu- lation of the vicinity did not exceed 200; that the company paid to its employees about $1,000,000 annually for wages, and paid about one-half of the taxes of the county in which its property was situated, besides pay- ing out a large amount for supplies; that if the injunction sought were granted the defendant company would be compelled to stop the operation of its plant and its property would become valueless. The facts in that case, which arose in Tennessee, were, therefore, strikingly similar to those in the case at bar, except for the important difference that there the complainants were actual resident proprietors, who had suffered serious pecuniary loss. The Supreme Court of Tennessee declared that the con- trolling principle in such cases is — " That the granting of an injunction is not a matter of absolute right, but rests in the sound discretion of the court, to be determined on a con- sideration of all of the special circumstances of each case, and the situa- tion and surroundings of the parties with a view to effect the ends of justice, A judgment for damages in this class of cases is a matter of absolute right, where injury is shown. A decree for an injunction is a matter of sound legal discretion, to be granted or withheld as that dis- cretion shall dictate, after a full and careful consideration of every element appertaining to the injury." 762 MOUNTAIN COPPER CO. v. U. S. [part ii. And after citing numerous authorities in support of that principle, thus applied it to the case then before the court: " The question now to be considered is, what is the proper exercise of discretion, under the facts appearing in the present case? Shall the complainants be granted, in the way of damages, the full measure of relief to which their injuries entitle them, or shall we go further, and grant their request to blot out two great mining and manufacturing en- terprises, destroy half of the taxable values of a county, and drive more than 10,000 people from their homes? We think there can be no doubt as to what the true answer to this question should be. In order to protect by injunction several small tracts of land, aggregating in value less than $1,000, we are asked to destroy other property worth nearly $2,000,000, and wreck two great mining and manufacturing enterprises that are engaged in work of very great importance, not only to their owners, but to the State, and to the whole country as well, and to de- populate a large town, and deprive thousands of working people of their homes and livelihood, and scatter them broadcast. The result would be practically a confiscation of the property of the defendants for the bene- fit of the complainants — an appropriation without compensation. The de- fendants cannot reduce their ores in a manner different from that they are now employing, and there is no more remote place to which they can remove. The decree asked for would deprive them of all their rights. We appreciate the argument based upon the fact that the homes of the complainants who live on the small tracts of land referred to are not so comfortable and useful to their owners as they were before they were affected by the smoke complained of, and we are deeply sensible of the truth of the proposition that no man is entitled to any more rights than another on the ground that he has or owns more property than that other. But in a case of conflicting rights, where neither party can enjoy his own without in some measure restricting the liberty of the other in the use of the property, the law must make the best arrangement it can between the contending parties, with a view to preserving to each one the largest measure of liberty possible under the circumstances. We see no escape from the conclusion in the present case that the only proper decree is to allow the complainants a reference for the ascertainment of damages, and that the injunction must be denied to them, except in the qualified manner indicated." In the case before us the land of the complainant within the damaged zone is, according to the evidence, not timber land, and is practically worthless for agricultural and horticultural purposes, for the reason that it has little or no soil. Most of such trees and underbrush that has stood thereon had been killed prior to the beginning of this suit, and such vege- tation as then remained was of very small value. The testimony in re- spect to the lack of value in this land of the complainant is corroborated by the circumstance ilia I, iilthongh it is in close proximity to tlic railroad connecting the cities of San Francisco and Portland, and but a com- CHAP. I.] SPKINGIIEAD SPINNING CO. v. EILEY 763 paratively short distance from the towns of Redding and Shasta, yet no purchaser seems to have taken any of it at the government price of $1.25 per acre, though it has been open to purchasers for about 50 years, nor did a single homesteader, so far as appears, ever settle upon any of it during all of the years it was offered by the government as a gift to such settlers. For the reasons stated the judgment is reversed, and the cause re- manded, with directions to the court below to dismiss the bill. Section 4. Labor Disputes. SPEINGHEAD SPINNING CO. v. RILEY. In Chancery, before Sir Richard Malins, V. C, 1868. [L. R., 6 Eq. 551.] July 31. Sir R. Malins, V. C, after stating the facts, and referring to the Acts 6 Geo. 4, c. 129, the Masters and Workmen's Act, and the Act of 1859, 20 & 21 Vist. c. 43, continued :— These Acts have received an authoritative construction in the direc- tion of Mr. Baron Bramwell to the jury in the case of Reg. v. Druitt, 16 L. T. N. S. 855. The substance of that judgment, in which I entirely concur, is this : — That every man is at liberty to induce others, in the words of the Act of Parliament, " by persuasion or otherwise," to enter into a combination to keep up the price of wages, or the like; but directly he enters into a combination which has as its object intimi- dation or violence, or interfering with the perfect freedom of action bf another man, it then becomes an offence not only at common law, but also an offence punishable by the express enactment of the Act 6 Geo. 4, c. 129. It is clear, therefore, that the printing and publishing of these placards and advertisements by the Defendants, admittedly for the purpose of intimidating workmen from entering into the service of the Plaintiffs, are unlawful acts, punishable by imprisonment under the 6 Geo. 4, c. 129, and a crime at common law. But if these acts amount to the commission of a crime only, it is clear that this Court has no jurisdiction to restrain them. In the celebrated case of Gee v. Pritehard, 2 Sw. 402, 413, the object of which was to restrain the publication of letters written by the Plaintiff to the Defend- ant, Lord Eldon s^ys : " The publication of a libel is a crime, and I 764 SPKmGHEAD SPINNING CO. v. EILEY [part ii. have no jurisdiction to prevent the commission of crimes, excepting, of course, such cases as belong to the protection of infants where a dealing with an infant may amount to crime — an exception arising from that peculiar jurisdiction of this Court." Further on Lord Eldon says: " The question will be, whether the bill has stated facts of which the Court can take notice, as a case of civil property, which it is bound to protect." Lord Campbell, in the case of the Emperor of Austria v. Day, 3 D. E. & J. 239, quotes that passage with approbation. The jurisdiction of this Court is to protect property, and it will inter- fere by injunction to stay any proceedings, whether connected with crime or not, which go to the immediate, or tend to the ultimate, destruction of property, or to make it less valuable or comfortable for use or occupa- tion. It will interfere to prevent the destruction of property, as shown by Lowndes v. Bettle, 33 L. J. Ch. 451. The familiar cases of light and air, nuisance, and trade-marks, will illustrate what I have said, namely, that the Court will interfere where the acts complained of go to the destruction or material diminu- tion of the value of property. It is distinctly charged by this bill, and it is consequently admitted by the demurrers, that the acts of the Defen- dants which are complained of do tend to the immediate destruction of the value of the Plaintiffs' property. The 30th and 31st paragraphs of the bill go distinctly to this point, and in the 17th paragraph it is stated that these placards and advertisements are, in fact, part of a scheme of the Defendants whereby they, by threats and intimidation, prevent persons from hiring themselves to or accepting work from the Plain- tiffs. If the Defendants Riley and Butterworth had carried on a manu- factory in the neighbourhood of the Plaintiffs' works, and had by any process poured noxious vapours into the Plaintiffs' mill to such an ex- tent as to render it Impossible for them to procure workmen to carry on their operations, that would have been a nuisance tending to the destruc- tion of the Plaintiffs' property which this Court would have restrained by injunction; and so it would if the Defendants had, by darkening their ancient lights, rendered it impossible or even difficult to carry on their trade; and so if the Defendants had, by constructing a material obstruc- tion, such as building a wall, rendered the access by the work- people of the Plaintiffs to their mill impossible. Why should the Defendants be less amenable to the purisdiction of this Court because they proceed to destroy the value of the Plaintiffs' property in another but not less efficacious mode, namely, by their threats and intimidation rendering it impossible for the Plaintiffs to obtain workmen, without whose assistance the property becomes utterly valueless for the purposes of their trade? The truth, I apprehend, is, that the Court will interfere to prevent acts amounting to crime, if they do not stop at crime, but also go to the destruction or deterioration of the value of property. That was the CHAP. I.] SPKINGHEAD SPINNING CO. v. RILEY 765 principle on which the Court restrained the proceedings of M. Kossuth, with regard to the Hungarian notes in the case of the Emperor of Austria V. Day, 3 D. F. & J. 217. Lord Chancellor Campbell says, 3 D. F. & J. 232: — "I agree that the jurisdiction of this Court in a case of this nature rests upon injury to property actual or prospective, and that this Court has no jurisdiction to prevent the commission of acts which are merely criminal or merely illegal, and do not affect any rights of property, but I think there are here rights of property quite sufficient to found jurisdic- tion in this Court. I do not agree to the proposition that there is no remedy in this Court if there be no remedy at law, and still less do I agree to the proposition that this Court is bound to send a matter of this description to be tried at law." The same rule is in effect laid down by Lord Eldon in the celebrated case of Macaulay v. Shackell, I Bli. N. S. 96, 127. Lord Eldon there says: — "The Court of Equity has no criminal jurisdiction, but it lends its assistance to a man who has, in the view of the law, a right of prop- erty, and who makes out that an action at law will not be a sufficient rem- edy and protection against intruding upon his publication." In the present case, the acts complained of are illegal and criminal by the Act of Geo. 4, and it is admitted by the demurrers that they were designedly done as part of a scheme, by threats and intimidation, to pre- vent persons from accepting work from the Plaintiffs, and, as a conse- quence, to destroy the value of the Plaintiffs' property. It is, in my opinion, within the jurisdiction of this Court to prevent such or any other mode of destroying property, and the demurrers must, therefore, be over- ruled. The Defendant Carrodus, as stated in the bill, persisted in re- printing and re-publishing the placards and advertisements after a warning from the Plaintiffs, and his demurrer must consequently be overruled. In coming to this conclusion I desire to be understood as deciding simply on what appears upon this bill and these demurrers. For the reasons I have stated I overrule these demurrers, because the bill states, and the demurrers admit, acts amounting to the destruction of property. Upon the general question whether this Court can interfere to prevent . these unlawful proceedings by workmen issuing placards amounting to intimidation, and whether acts of intimidation generally would go to the destruction of property, that will probably have ultimately to be decided at the hearing of this cause. In the meantime I would only make this observation, that by the Act of Parliament it is recited that all such proceedings are injurious to trade and commerce, and dangerous to the security and personal freedom of individual workmen, as well as the security of the property and persons of the public at large; and if it should turn out that this Court has jurisdiction to prevent these misguided and misled workmen from committing these acts of in- timidation, which go to the destruction of that property which is the 766 SHEKRY v. PERKINS [part iu source of their own support and comfort in life, I can only say that it will be one of the most beneficial jurisdictions that this Court ever exercised. With regard to the costs, I do not intend, considering the novelty and importance of the question raised by this bill and these demurrers, to overrule them with costs in the ordinary course, but I shall reserve the costs. SHERRY AND OTHERS V. PERKINS and another. In the Supreme Judicial Court of Massachusetts, 1888. [147 Massachusetts 212.] Bill in equity, filed April 20, 1887, alleging that the first-named plain- tiff was engaged in the business of manufacturing boots and shoes in Lynn, and that he had admitted the other plaintiffs, who were in his employment as operatives, to share in the profits of the business; that there was a voluntary association in Lynn called the Lasters' Protective Union, composed of persons engaged in lasting boots and shoes, of which the first-named defendant was the president, and the other defendant, Charles H. Leach, was the secretary; that on January 5, 1887, Leach, acting for himself and Perkins, called upon Sherry to inquire as to the wages of his lasters, and was told that such wages were to be fixed by the lasters ; that on January 8, 1887, certain lasters left the plain- tiff's employment, giving as a reason therefore that they did not dare to work for them further on account of the defendants; that, in order to intimidate others from taking their places and to prevent such lasters from re-engaging in their employment, the defendants, on January 8, 1887, with the assent of the association and out of its moneys, caused to be carried in front of Sherry's factory, by a boy hired for that purpose, a banner bearing the following inscription : "Lasters are requested to keep away from P. P. Sherry's. Per order L. P. IT." The bill further alleged, that, because of such banners, crowds of people gathered in front of the factory when the lasters left their work; that the lasters were injured and threatened with bodily harm if they con- tinued in the plaintiff's employment; that various lasters, whose names were given, were subsequently called upon by the defendants, and so CHAP. I.] SHEKRY V. PERKINS 767 intimidated and injured that one of them was confined to his house and another left the plaintiff's employment; that the banner and the acts of the defendants were part of a scheme to prevent persons from entering the plaintiff's employment, and that the banner was carried in front of the factory until March 22, 1887, when the defendants, with a like purpose and at a time when there was no strike in the factory or trouble with the operatives, caused another banner to be carried in like manner before the factory, with the following inscription: "Lasters on a strike and lasters are requested to keep away from P. P. Sherry's until the present trouble is settled. Per order L. P. U." The bill also alleged that Sherry had remonstrated with the defendants without effect ; that the business carried on by the plaintiffs was a large one, and that the good-will was of considerable value, both of which, if the defendants were permitted to continue, would be seriously injured and destroyed. The prayer of the bill was, that the defendants might be restrained from making such banners, and from causing them to be similarly carried, and for further relief. Hearing before C. Allen, J., who found as facts, that members of the Lasters' Protective Union entered into a scheme, by threats and intimidation, to prevent persons in the employment of the plaintiffs as lasters from continuing in such employment, and in like manner to prevent other persons from entering into such employment as lasters; that the defendants participated in this scheme; that the use of the banners was a part of the scheme ; that the first banner was carried from January 8, 1887, to March 22, 1887, and the second banner from March 22, 1887, to the time of the hearing; and that the plain- tiffs have been and are injured in their business and property thereby; and the judge reported the case for the consideration of the full court. W. Allen^ J. The case finds that the defendants entered, with others, into a scheme, by threats and intimidations, to prevent persons- in the employment of the plaintiffs from continuing in such employ- ment, and to prevent others from entering into such employment; that the banners with their inscriptions were used by the defendants- as part of the scheme; and that the plaintiffs were thereby injured in their business and property. The act of displaying banners with devices, as a means of threats- and intimidation to prevent persons from entering into or continuing in the employment of the plaintiffs, was injurious to the plaintiffs, and illegal at common law and by statute, Pub. Sts. c. 74, § 2 ; Walker v. Cronin, 107 Mass. 555. We think that the plaintiffs are not restricted to their remedy by an action at law, but are entitled to relief by in- junction. The acts and the injury were continuous. The banners were used more than three months before the filing of the plaintiff's bill, and continued to be used at the time of the hearing. The injury 768 JERSEY CITY PRINTING CO v. CASSIDY [part ii. was to the plaintiff's business, and adequate remedy could not be given by damages in a suit at law. The wrong is not, as argued by the defendants' counsel, a libel upon the plaintiffs' business. It is not found that the inscriptions upon the banners were false, nor do they appear to have been in dis- paragement of the plaintiffs' business. The scheme in pursuance of which the banners were displayed and maintained was to injure the plaintiffs' business, not by defaming it to the public, but by intimi- dating workmen, so as to deter them from keeping or making engage- ments with the plaintiffs. The banner was a standing menace to all who were or wished to be in the employment of the plaintiffs, to de- ter them from entering the plaintiffs' premises. Maintaining it was a continuous unlawful act, injurious to the plaintiffs' business and property, and was a nuisance such as a court of equity will grant relief against.. Gilbert i'. Mickle, 4 Sandf. Ch. 357; Springhead Spinning Co. V. Riley, L. R. 6 Eq. 551. Boston Diatite Co. v. Florence Manuf. Co., 114 Mass. 69, was a case of defamation only. Some of the language in Springhead Spinning Co. V. Riley has been criticised, but the decision has not been overruled. See Boston Diatite Co. v. Florence Manuf. Co., uhi supra; Prudential Assurance Co. v. Knott, L. R. 10 Ch. 142 ; Saxby v. Easterbrook, 3 C. P. D. 339 ; Thorley's Cattle Food Co. v. Massam, 14 Ch. D. 763 ; Thomas i'. Williams, 14 Ch. D. 864; Day v. Brownrigg, 10 Ch. D. 294; Gaskin v. Balls, 13 Ch. D. 324; Hill v. Davies, 21 Ch. D. 798; Hermann Loog v. Bean, 26 Ch. D. 306. Decree for the plaintiffs. THE JERSEY CITl^ PRINTING CO. v. CASSIDY et al. In the Court of Chancery of New Jersey, 1902. [63 New Jersey Equity 759.] On motion, on order to show cause, for an injunction to restrain de- fendants, former employes of the complainant, and now on strike, from unlawful interference with the complainant's business, the employment of worJsmen, etc. Heard on bill, answer and affidavits. Upon filing the bill an order was made restraining the defendants "from in any manner knowingly and intentionally causing or attempting to cause by threats, offers of money, payment of money, offering to pay or the payment of transportation expenses, inducements or persuasions to any f;niployo or the coininainant under contract to render service to it to break siicli (•(nitriicl liy (iiiittiiig such service; from any and all personal CHAP. I.] JEKSEY CITY PRINTING CO. v. CASSIDY 769 molestation of persons willing to be employed by complainant with intent to coerce such persons to refrain from entering such employment; from addressing persons willing to be employed by complainant against their will and thereby causing them personal annoyance with a view to per- suade them to refrain from such employment; from loitering or picket- ing in the streets near the premises of complainant, Nos. 68 and 70 York street, and No. 37 ]\Iontgomery street, Jersey City, with intent to procure the personal molestation and annoyance of persons employed or willing to be employed by complainant and with a view to cause persons so em- ployed to quit their employment, or persons willing to be employed by complainant to refrain from such employment; from entering the prem- ises of complainant, Nos. 68 and 70 York street, Jersey City, against its will with intent to interfere with its business; from violence, threats of violence, insults, indecent talk, abusive epithets practiced upon any per- sons without their consent with intent to coerce them to refrain from entering the employment of complainant, or to leave its employment." Stevenson^ V.C. (orally). The bill is filed to restrain a body of workmen, who are on a strike, and other persons associated with them, from doing certain things which are alleged to be injurious to the complainant, their former employer. The things that they are restrained from doing are specified in the restraining order. That order was not made hastily. It was for- mulated with care on the part of the court, and I do not understand that counsel for the defendant criticises its terms on the ground that they are too broad. The defence is that the persons who are enjoined have not been doing, and are not threatening now to do, any of those things that are interdicted. That is the sum and substance of the defence, which has been presented by a great many affidavits and with very great force. The order does not interfere with the right of the workmen to cease his employment for any reasons that he deems sufiicient. It does not undertake to say that workmen may not refuse to be employed if certain other classes of workmen are retained in employment. It leaves the work- man absolutely free to abstain from work — for good reasons, for bad reasons, for no reasons. His absolute freedom to work, or not to work, is not in any way impaired. The restraining order is based upon the theory that the right of the workman to cease his employment, to refuse to be employed, and to do that in conjunction with his fellow- workmen, is just as absolute as is the right of the employer to refuse further to em- ploy one man, or ten men, or twenty men who have theretofore been in his employment. From an examination of the cases and a very careful con- sideration of the subject I am unable to discover any right in the courts, as the law now stands, to interfere with this absolute freedom on the part of the employer to employ whom he will, and to cease to employ whom he will ; and the corresponding freedom on the part of the workman, for any reason or no reason, to say that he will no longer be employed ; and th6 further right of the workmen, of their own free will, V70 JEKSEY CITY FEINTING CO. v. CASSIDY [part ii. to combine and meet as one party, as a unit, the employer who, on the other side of the transaction, appears as a unit before them. Any dis- cussion of the motives, purposes or intentions of the employer in exer- cising his absolute right to employ or not to employ as he sees fit, or of the free combination of employes in exercising the corresponding absolute right to be employed or not as they see fit, seems to me to be in the air. Thus, there is a wide field in which employes may combine and exercise the arbitrary right of "dictating" to their common employer "how he shall conduct his business." The exact correlative of this right of the employe exists, in an equal degree, in the employer. He may arbitrarily "dictate" to five thousand men in his employ in regard to matters in respect of which their conduct ought, according to correct social and ethical principles, to be left entirely free. But if the "dictation" is backed up solely by the announcement that, if it is not submitted to, the dictating party will refrain from employing, or refrain from being employed, as the case may be, no legal or equitable right be- longing to the party dictated to, which I am able to discern, is thereby invaded. It is easier, I think, to obtain a correct idea of the legal and equit- able right which underlies many of the injunctions which have been granted in these strike cases restraining combinations of workmen from interfering with the natural supply of labor to an employer, by means of molestation and personal annoyance, if we exclude from consideration the conduct of the defendants as a cause of action on behalf of the imme- diate victims of their molestation — i. e., of the workman or workmen whom the combination are seeking to deter from entering into the em- ployment which is offered to them, and which they, if let alone, would wish to accept. I say this, although I firmly believe that the molested workman, seeking employment and unreasonably interfered with in this efi"ort by a combination, has an action for damages at common law, and, where the molestation is repeated and persistent, has the same right to an injunction, in equity, which, under the same circumstances, is ac- corded to his contemplated employer. The underlying right in this particular case under consideration, which seems to be coming into general recognition as the subject of protection by courts of equity, through the "instrumentality of an in- junction, appears to be the right to enjoy a certain free and natural condition of the labor market, which, in a recent case in the House of Lords, was referred to, in the language of Lord Ellenborough, as a "j)robablo expectancy." This underlying right has otherwise been broadly defined or described as the right which every man has to earn his living, or to pursue his trade or business, without undue interference, and might otluTwise be descril)0(l as the right which every man has, whether em- j)loyer or employe, of al)so]uto freedom to emjjloy or to be employed. The peculiar eleinciit of ibis perhaps newly-recognized right is that it is an interest whidi one man has in the freedom of another. In the case before CHAP. I.] JERSEY CITY PRINTING CO. v. CASSIDY 771 this court the Jersey City Printing Company claims the right, not only to be li'ce in employing labor, but also the right that labor shall be free to be employed by it, the Jersey City Printing Company. A large part of what is most valuable in modern life seems to depend more or less directly upon "probable expectancies." When they fail, civ- ilization, as at present organized, may go down. As social and industrial life develops and grows more complex these "probable expectancies" are bound to increase. It would seem to be inevitable that courts of law, as our system of jurisprudence is evolved to meet the growing wants of an increasingly complex social order, will discover, define and protect from undue interference more of these "probable expectancies." In undertaking to ascertain and define the rights and remedies , of employers and employes, in respect of their "probable expectancies" in relation to the labor market, it is well not to lose sight altogether of any other analogous rights and remedies which are based upon similar "probable expectancies." It will probably be found in the end, I think, that the natural expectancy of employers in relation to the labor market and the natural expectancy of merchants in respect to the merchandise market must be recognized to the same extent by courts of law and courts of equity and protected by substantially the same rules. It is freedom in the market, freedom in the purchase and sale of all things, including both goods and labor, that our modern law is en- deavoring to insure to everj^ dealer on either side of the market. The valuable thing to merchant and to customer, to employer and to employe, manifestly is freedom on both sides of the market. The merchant, with his fortune invested in goods and with perfect freedom to sell, might be ruined if his customers were deprived of their freedom to buy; the pur- chaser, a householder, seeking supplies for his family, with money in his pocket and free to buy, might find his liberty of no value and might suffer from lack of food and clothing if the shopmen who deal in these articles were so terrorized by a powerful combination as to be coerced into refusing to sell either food or clothing to him. It is, however, the right of the employer and employe to a free labor market that is the particular thing under consideration in this case. A man establishes a large factory where working people reside, tak- ing the risk of his being able to conduct his industry and offer these working people employment which they will be willing to accept. He takes the risk of destructive competition and a large number of other risks, out of which, at any time, may come his financial ruin and the suspension of his manufacturing works. But our law, in its recent development, undertakes to insure to him, not only that he may employ whom he pleases, but that all who wish to be employed by him may enter into and remain in such employment freely, without threats of harm, with- out imreasonable molestation and annoyance from the words, actions or other conduct of any X)thcr persons acting in combination. What is the 772 JEKSEY CITY PRINTING CO. v. CASSIDY [part ii. measure or test by which the conduct of a combination of persons must be judged in order to determine whether or not it is an unlawful inter- ference with freedom of employment in the labor market, and as such in- jurious to an employer of labor in respect of his "probable expectancies," has not as yet been clearly defined. Perhaps no better definition could be suggested than that which may be framed by conveniently using that important legal fictitious person who has taken such a large part in the development of our law during the last fifty years — the reasonably prudent, reasonably courageous and not unreasonably sensitive man. Precisely this same standard is employed throughout the law of nuisance in determining what degree of annoyance on the part of one's neighbor one must submit to, and what degree of such annoyance is excessive and the subject of an action for damages or a suit for an injunction. A man may not be liable to an action for slander for calling a workman a "scab" in the street, but if a hundred men combine to have this work- man denounced as a "scab" in the street, or followed in the streets to and from his home, so as to attract public attention to him and place him in an annoyingly conspicuous position, such conduct, the result of such combination, is held to be an invasion of the "probable expectancy" of his employer or contemplated employer, an invasion of this employer's right to have labor flow freely to him. Without any regard to the rights and remedies which the molested workman may have, the injunction goes at the suit of the employer to protect his "probable expectancy" — to secure freedom in the labor market to employ and to be employed, upon which the continuance of his entire industry may depend. I think it is safe to say that all through this development of strike law, during the last decade, no principle becomes established which does not operate equally upon both employer and employe. The rights of both classes are absolutely equal in respect of all these "probable expectancies." An operator upon printing machines has the right to offer his labor freely to any of the printing shops in Jersey City. These shops may all combine to refuse to employ him on account of his race, or membership in a labor union, or for any other reason, or for no reason, precisely as twenty employes in one printing shop may combine and arbitrarily refuse to be further employed unless the business is conducted in accordance with their views. But in the case of the operative seeking employment, he has a right to have the action of the masters of the printing shops, in refer- ence to employing him, left absolutely free. If, after obtaining, or seek- ing to obtain, employment in a shop, the master of that shop should be subjected to annoyances and molestation, instigated by the proprietors of other j)rinting shops, who combine to compel, by such molestation and annoyance, this one master printer, against his will and wish, to exclude the operative from employment, this operative, in my judgment, would have a right to an action at law for damages, and would have a right to an injunction if his case presented the other ordinary conditions upon which injunctions issue. Uut the common law courts have not had time CHAP. I.] JERSEY CITY PRINTING CO. v. CASSIDY 773 to speak distinctly on this subject as yet, and it is necessary to be cau- tious in dealing with a subject in which both courts of law and courts of equity as yet are feeling their way. I think that the leading principle enforced in the restraining order in this case is not inconsistent with any authorities which control this court. This principle is that a combination of employers, or a combination of employes, the object of which is to interfere with the freedom of the employer to employ, or of the employe to be employed (in either of which cases there is an interference with the enjoyment of a "probable expec- tancy," which the law recognizes as something in the nature of property), by means of such molestation or personal annoyance as would be liable to coerce the person upon whom it was inflicted, assuming that he is reason- ably courageous and not unreasonably sensitive, to refrain from employ- ing or being employed, is illegal and founds an action for damages on the part of any person knowingly injured in respect of his "probable expec- tancy" by such interference, and also, when the other necessary condi- tions exist, affords the basis of an injunction from a court of equity. The doctrine which supports that portion of the restraining order in this case which undertakes to interdict the defendants from molesting applicants for employment as an invasion of a right of the complainant, is apx)licable to a situation presenting either an employer or an employe as complainant, and containing the following elements: First. Some person or persons desiring to exercise the right of em- ploying labor, or the right of being employed to labor. Second. A combination of persons to interfere with that right, by molestation or annoyance, of the employers who would employ, or of the employes who would be employed, in the absence of such moles- tation. How far the element of combination of a number of persons will finally be found necessary, in order to make out the invasion of a legal or eqiii- table right in this class of cases, need not be discussed. We are dealing with cases where powerful combinations of large numbers, in fact, exist. Third. Such a degree of molestation as might constrain a person having reasonable fortitude, and not being unreasonably sensitive, to abandon his intention to employ or to be employed, in order to escape such molestation. Fourth. As the result of the foregoing conditions, an actual pecuniary loss to the complaining party, by the interference with his enjoyment of his "probable expectancies" in respect of the labor market. I do not think that the constraining force brought to bear upon the employer or employe which the law can interdict can ever include the power of public opinion or even of class opinion. Every man, whether an employer or an employe, constitutes a part of a great industrial system, and his conduct is open to the criticism of the members of his own class. While, therefore, a combination of union men have no right to cry "scab" in the stre'ets to non-union employes, or follow them in the 774 JEESEY CITY FEINTING CO. v. CASSIDY [part ii. street in a body to and from their homes, or do many other things in com- bination, which, if done once by a single individual, would not found an action of tort, such combinations, I think, have left a fairly wide field of effort towards the creation and application of public opinion as a constraining force upon conduct of any kind which they wish to dis- courage. I have endeavored to exi^lain, in a general way, my own view of the most important and least understood principle embodied in the restrain- ing order in this case, in order that the defendants, and, in fact, all parties interested, may have all possible light in construing and applying the exact terms of the order. What I have said may be found to be sub- ject to modifications, without subjecting the terms of the order to any change. All generalizations on such a subject — such a novel subject as the one under consideration — are dangerous. There may be conduct on the part of a combination of employers, or of employes, which would seem to come within the general definition or description of illegal and prohibited conduct, which I have attempted to frame, but which conduct, nevertheless, might be justified, and hence could not be adjudged illegal. Molestation and personal annoyance, however, the terms which I have employed, do not seem to be inclusive of any justifiable conduct, especially if no one is allowed to complain that he is molested or annoyed by being subjected peaceably to the judgment and criticism of public opinion.' 'See Coeur d'Alene Consolidated & Mining Co. v. Miners' Union, 1892, 51 Fed. 260, 267. The following extract from the opinion of the court in Union Pacific Railway Co. V. Ruef, 1902, 120 Fed. 102, seems to outline the doctrines generally pre- vailing in the majority of the jurisdictions in the United States : "I believe, and that without a doubt, that, in so far as propositions are involved in this case, the law is as follows: (1) The defendants acted within their right when they went out on a strike. Whether with good cause, or without any cause or reason, they had the right to quit work for the Union Pacific Railroad Company, and their reasons for quitting work were reasons they need not give to any one. And that they all went out in a body, by agreement or preconcerted arrangement, does not militate against them or affect this case in any way. (2) Such rights are reciprocal, and the company had the right to discharge any or all of the defendants, with or without cause, and it cannot be inquired into as to what the cause was. (3) It is im- material whether the defendants are not now in the service of the company because of a strike or a lockout. (4) The defendants have the right to combine and work together in whatsoever way they believe will increase their earnings, shorten their hours, lessen their labor or better their condition, and it is for them, and they only, to say whether they will work by the day or by piece work. All such is part of their liberty. And they can so conclude as indi- viduals, or as organizations, or as unions. (5) And the right is also reciprocal. The railroad company has the right to have its work done, by the premium or piece system, without molestation or interference by defendants or others. This is liberty for the company, and the company alone has the right to CHAP. I.] JERSEY CITY PRINTING CO. v. CASSIDY 775 determine as to that matter. (G) When the defendants went on a strike, or when put out on a lockout, their relations with the company were at an end; they were no longer employes of the company; and the places they once occupied in tlie siiops were no longer their places, and never can be again, excepting by mutual agreement between the defendants and the company. (7) No one of the defendants can be compelled by any law, or by any order of any court, to again work for the company on any terms or under any conditions. ( 8 ) The company cannot be compelled to employ again any of the defendants, or any other person, by any law, or by any order of any court, on any terms, or under any conditions. (9) Each, all, and every of the foregoing matters between the company and the defendants are precisely the same, whether applied to the company or to the defendants. (10) The com- pany has the right to employ others to take the places once filled by de- fendants ; and in employing others the defendants are not to be consulted, and it is of no lawful concern to them, and they can make no lawful com- plaint by reason thereof. And it makes no difference whether such new emploj'es are citizens of Omaha or of some other city or State. A citizen of Chicago or from any State in the Union, has the same rights as to work in Omaha as has a citizen of Omaha. (11) Defendants have the right to argue or discuss with the new employes the question whether the new employes should work for the company. They have the right to persuade them if they can. But in presenting the matter they have no right to use force or violence. They have no right to terrorize or intimidate the new employes. The new employes have the right to come and go as they please, without fear or molestation, and without being compelled to discuss this or any other ques- tion, and without being guarded or picketed; and persistent and continued and objectionable persuasion by numbers is of itself intimidating and not allowable. (12) Picketing in proximity to the shops or elsewhere on the streets of the city, if in fact it annoj* or intimidates the new employes, is not allowable. The streets are for public use, and the new employe has the same right, neither more nor less, to go back and forth, freely and without molestation, and without being harassed by so-called arguments, and without being picketed, as has a defendant or other person. In short, the rights of all parties are one and the same." INDEX TO VOLUME I. Accident, penalties and forfeitures, 399-429. Definition and nature, 399-403. Destroyed records, 415-417. Exceptions to rule, 419-429. Lost deeds, 406-411. Lost negotiable instruments, 411-414. Accidental destruction of property under contract of sale throws loss on vendee, 425. Ante-nuptial agreement enforceable in equity though not at law, 100. Assignment of mere possibility in equity, 74, note. Choses in action, assignable at law, 80. By the King, 81. In equity, 82. Release after assignment formerly, but not now, good at law, 83-84. Chancellor, the, 3. Principles on which Chancellor acted, 16. Chancery, growth and development, 5. Eeasons for applying to, 14. What is chancery proceeding, 21. Contribution, acknowledged at law, though not as full or adequate, 42 and note; note, p. 43. Among sureties a natural as well as contractual equity, 41. Chattel may be specifically conveyed, 86-93. Continuing trespass enjoined, 94, 700-717. Cancellation of an instrument invalid at law, 104. Compromise, mistake in, relieved, 444. Conscience, equity acts on, 143-145, note. Consideration necessary in equity, 303. Conversion, 310, 313, 315, 594, 641. Contribution among sureties, 115-117. Criminal jurisdiction in equity, 208-232. Discovery, a remedy in equity in aid of legal right. 45. As ground, and limitation, 117; notes, 118-120. Duress 487-498. Arising from threat of prosecution, 493. Divorce as means of duress, 493. In securing payment of debts contracted by prospective husband, 487. Of husband over wife, 493. Duty of legatees to refund, 361-377. Election, 035 et seq. Equitable estate of wife, 66-69. Equitable lien of vendor, 71. Of vendee, 73. 778 INDEX Equitable rights, 309, 642. Equity acts according to established rules, 144-147, and notes, 148-150. Equity acts in controvention of a statute, 235. Equity asserts law, 258. Equity decrees agreement to be mortgage, although agreement is in a formal instrument; or formal conveyance will be decreed mortgage if that is intent of parties, 304-310. Equity enforces, but neither changes nor creates contract, 259. Equity, fundamental theories and principles of, 23-30, 133 ct seq. Equity gives no remedy if remedy is complete at law, although judgment at law is worthless, 259. Equity gives remedy only where plaintiff does full equity, 2G4-277. Equity gives remedy when right exists, but remedy is lacking at law, 255-264. Equity grants full relief when jurisdiction is assumed, 113. But refuses relief for part to be tried by jury, 116. Equity in courts' of common law, 3. Equity jurisdiction, grounds of — jvirisdiction of part is jurisdiction of whole, 113. Equity jurisdiction is exclusive, concurrent, auxiliary or supplemental, 31-57. Equity may not enforce voluntary agreement, although under seal, 303. Equity, origin, growth and development, 1-30. Equity protects a property right, 149 et seq. Equity restrains proceedings at law, 250-254. Equity takes jurisdiction if land is outside jurisdiction, provided defendant is within jurisdiction, 235-24G. Equity takes jurisdiction if land is within jvirisdiction, although defendant is only constructively within jurisdiction, 246. Equity will not act where legal remedy exists, 133. Unless remedy be inadequate or doubtful, 134, and note, 136. Estoppel, 553-593. Classification and nature of, 565. Does and does not lie against government, 589. Does not lie against public policy, 587. Of married women, 576-583. Of minors, 584. Fraud arising from necessitous condition, 479. As ground of rescission, must exist at time of transaction, not sub- sequently, 486. Classes of, 455. In abvise of process of the law, 481-486. In a confidential or fiduciary relation, 469. In agent against principal as ground of relief, 471. In judgment creditor renders purcliase of judgment voidable, 470. In making of will, 457. In marriage agreement, 458, 461, 403. Is a shield, not a sword, 462, 463. Resulting frmii imposition, 466. Ilcir is not lialile for contract to convey of deceased tenant in tail, 419. Heir is not liable to attorney for lien against ancestor's land, 419. Heirloom, sjiccifu; conveyance of, 86. INDEX 779 Inadequacy of legal right or remedy, 80-112. Injunctions to restrain labor disputes, 703-775. Nuisance, 717-703. Trespass, 079-717. Waste, 042-078. Jurisdiction, auxiliary, 45-57. Concurrent, 41-44. Exclusive, 31-41. Grounds of, 58-132. Inadequacy of legal right or remedy, 80-97. No legal right or remedy, 58-85. Not ousted, even although law has adopted equitable remedy, 138-143. Labor disputes, 703-775. Laches as affecting equitable right or remedy, 377-390. Legal remedy impracticable, 97-112. Because of defendant's change of residence, 97. Because of defendant's powerful position, 98-100. Legal remedy must be exhausted, 130. Libel and slander in equity, 228; note, 232. Lien of an attorney does not revive and lie against heir, 419. Limitations, statute of, in equity, 381-390. Lost deed or instrument set up and enforced in equity, 112. Maxims of equity: Equity acts in personam, 233-254. There is no right without a remedy, 255-204. He who seeks equity must do equity, 204-277. He who seeks equity must come with clean hands, 278-287. Equity follows the law, 288-299. Equity looks to the intent rather than the form, 300-310. Equity regards that as done which ought to be done, 310-324. Equity imputes an intent, 324-328. Where the eqviities are equal, the one prior in time shall prevail, 329-340. Where the equities are equal the legal title prevails, 340-300, Equality is equity, 301-377. Equity aids the vigilant, 377-390. Mistake: As between vendor and vendee and rectifications thereof, 449. In sele