A = : ] 8 5 9 3 8 m i9l« .U>< M THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW A TREATISE EQUITY JURISPRUDENCE, AS ADMINISTERED IN THE UNITED STATES OF AMERICA; ADAPTED FOE ALL THE STATES, AND TO THE UNION OF LEGAL AND EQUITABLE REMEDIES UNDER THE REFORMED PROCEDURE By JOHN NORTON POMEROY, LL.D. FOURTH EDITION BY JOHN NORTON POMEROY, Jr., A.M., LL.B. Professor of Law in the University of Illinois IN FOUR VOLUMES VOLUME I BANCROFT-WHITNEY COMPANY SAN FRANCISCO THE LAWYERS CO-OPERATIVE PUBLISHING COMPANY ROCHESTER, N. T. 1918 Entered according to act of Congress in the years 1881, 1882, and 1883, by JOHN NORTON POMEROY, In the office of the Librarian of Congress, at Washington, Entered according to act of Congress in the year 1892, by ANNIE R. POMEROY, In the office of the Librarian of Congress, at Washington. Copyright, 1905, By CARTER P. POMEROY, HARRIET H. THOMPSON, AND JOHN NORTON POMEROY, Jr. Copyright, 1918, By HARRIET H. THOMPSON, JOHN NORTON POMETJOY, Jr., CHRISTINE M. BROOKE, and HARRIET H. POMEROY. 19(8. San Francisco The Filmer Brothers Electrotype Company Typographers and Stereotypers TO STEPHEN J. FIELD, LL.D.. ONE OF THE ASSOCIATE JUSTICES OF THE SUPREME COUET OF THE UNITED STATES: NOT ONLY AS A TRIBUTE TO HIS EMINENT PUBLIC SERVICES IN THE MOST AUGUST TRIBUNAL OF ANY MODERN NATION, BUT ALSO AS AN ACKNOWLr EDGMENT OF HIS PRIVATE FRIENDSHIP, AND OP THE author's ESTEEM AND RESPECT, THIS WORK IS DEDICATED. B48217 PEEFACE TO THE FOUETH EDITION. In preparing this edition, the editor has found no occasion to depart from the plan and method of the third edition, save in one particular. A consolidated Index and Table of Cases to the original work and the editor's supplement, now form the final volume of the series. This has necessitated the inclusion of the author's brief Part Fourth (Equitable Remedies) in the first of the editor's sup- plementary volumes, — Vol. IV. of the series. It is believed that both of these changes will serve the reader's convenience. No addi- tions have been made to the author's text. The additions to the editor's notes, however, are greater than in either of the previous editions, and have increased the size of these three volumes by nearlv six hundred pages. As the editor has obtained his material directly from the original sources, by the laborious process of reading the reports of the last thirteen years from end to end, he trusts that no Equity case of general interest, within that period, has escaped attention. It is hoped that this edition, the cumulative result of twenty-nine years of editorial research, may meet from the pro- fession the same cordial reception that hsis been accorded to its predecessors. J. N. P., Jr. Beekeley, Cal,, September, 1918. (V) PEEFACE TO THE THIRD EDITION. An edition of a standard text-book in double the number of volumes of the first edition appears to call for some explanation, if not apology. The motives which induced the present editor to add to his father's work, by way of an attempt to carry out and complete the original scheme of that work, the two volumes on "Equitable Remedies," are stated in the preface to those volumes. It was found, when the editing of the remaining parts of the work was taken up, that an adequate statement of the twelve years' growth of their many topics would swell the three volumes, already bulky, to an inconvenient size; and it further appeared that in a large range of these topics a treatment less general and elementary than the author.'s limits of space allowed would more truly repre- sent their present relative importance. The editor has therefore, — while supplying all portions of the book with citations much more numerous than those added in the second edition, — under- taken to annotate at considerable length, drawing upon the older as well as the latest cases, such subjects as, e. g. the Equity Juris- diction of the United States Couiis ; many topics in the chapters on Notice, Priorities, and Bona Fide Purchase; and many in the law of Trusts. The subject of the Jurisdiction to avoid Multi- plicity of Suits, which the author was the first to treat in a man- ner and to an extent adequate to its intrinsic importance, has had an astonishing growth under the impetus given by his well known chapter; in presenting, in some detail, the result of this growth, the editor has ventured to add two paragraphs (§§ 25114, 251%) to the text, for the purpose of emphasizing and illustrating an important limiting principle, which had, indeed, been recognized by the author, but has only come into prominence in recent years. With this one exception no new paragraphs have been interpolated ; the author's text and notes have been left as they were written, the editor believing that the peculiarly authoritative character con- ceded by the courts to that text required that no chance should be afforded of confusing the author's language with his own. The results of the editor's labor — which has included a careful re- (vii) viii Preface to the Third Edition. examination of all the cases added in the second edition, — have, therefore, been cast into a series of separate notes, distinguished from the author's notes by reference letters instead of numerals. The reader's attention has been called to several thousands of eases citing or quoting the text ; from the number of these some notion may be obtained of the extent to which the author's statements have been accepted as authority. An editorial task involving the reading of tens of thousands of cases can rarely be accomplished single handed. The editor desires to acknowledge his indebtedness to his painstaking assistants, Mr. F. W. Doan, now of Tucson, Ariz., and Mr. E. S. Page, of Oak- land, Cal. The chapter on Trusts (excepting Charitable Trusts) was for the most part annotated by Mr. Doan ; as to the rest of the editorial notes, it may be said in general that those in Vol. Ill are chiefly Mr. Page's work, those in Vols. I and II, and all those Btating the results of English cases, are chiefly the editor's. Pomeroy's Equity Jurisprudence was written at a fortunate time, — a time almost coincident with the completion of the labors of Jessel and others of that brilliant group of English Chancery Judges of the seventh and eighth decades of the last century, whose restatements of the doctrines and principles of Equity amounted almost to a re-creation. It is hardly too much to say, that the author accomplished the same result for large parts of the equity jurisprudence in this country. Few law boote in any fleld have been relied on by American Courts in the last twenty years with anything like the same frequency. The instances are rare in which the author's conclusions on debatable questions have not been accepted, almost without dispute. The hope earnestly expressed in his preface, that his work "may maintain the equity jurispru- dence in its true position as a constituent part of the municipal law ' ' appears to have been abundantly fulfilled. J. N. P., Jr. San Fkancisco, March, 1905. PEEFACE TO THE SECOND EDITION. The author of this treatise departed this life so soon after the publication of the first edition, that he had no opportunity to do anj^thing in the way of preparation for this edition. By a testa- mentary request, he charged that work upon the present editors. This duty the editors, with filial reverence, have performed to the best of their ability, and now submit the result of their labors to the profession. In the preparation of this edition, a careful examination has been made of all the cases — English and American — which have appeared since the publication of the first edition, involving matters falling within the scope of this work. These cases are upwards of eight thousand in number. In gathering this large mass of mate- rial, the editors have not, in any instance, made use of the often fallible assistance of the digests, but have gone directly to the reports. A considerable proportion of the material thus gathered has, of course, been discarded, as involving merely the enunciation of familiar doctrines ; but the nearly universal desire among mem- bers of the legal profession to be guided by the latest authority has generally been respected. While it has not been found neces- sary or desirable to add to or alter the text, except for the purpose of correcting a few typographical errors, the editors have not con- fined their labors to the mere enumeration of recent decisions. Without attempting to enlarge the general scope of the work, whose contents are so well known, it has been found possible to give a treatment considerably more in detail of many important topics. It is also hoped that the insertion of numerous cross-references will prove to be a material convenience in the use of the book. In order that those who make use of this edition may be able to dis- tinguish between the work of the author and that of the present editors, all the new matter inserted in this edition has been inclosed within brackets. (ix) X Peeface to the Second Edition. In submitting this result of their labors to the legal profession, the editors desire to express the hope that they will be found to have done nothing to impair the original character of their father's work, or to lower the high place which it has found in the estimation of the Bench and Bar. C. P. POMEROY. J. N. P., Jr. San Fkancisco, April, 1892, PREFACE. The author herewith submits to the legal profession a text-bonk which treats, in a somewhat comprehensive manner, of the equitable jurisdiction as it is now held by the national and state tribunals, and of the equitable jurisprudence as it is now administered by the courts of the United States, and of all those states in which the principles of equity, originally formulated by the English Court of Chancery, have been adopted and incorporated into the municipal law. It is proper that he should, in a few words, explain the motives which led to the preparation of such a work, and describe the plan which he has pursued in its composition. While the supreme court of judicature act was pending before the British Parliament, there appeared in the Saturday Review a series of articles written by one of the ablest lawyers and most profound thinkers of the English bar, which pointed out a grave danger threatening the jurisprudence of England in the plan, as then proposed, for combining legal and equitable rights and remedies in the same action, and administering them by the same tribunal. The writer showed, as the inevitable result of the system, that equitable principles and doctrines would gradually be sup- pressed and disappear in the administration of justice; that they would gradually be displaced and supplanted by the more inflex- ible and arbitrary rules of the law; until in time equity would practically cease to be a distinctive branch of the national juris- prudence.! The reasoning of these remarkable articles was so 1 The reality of the clanger, and the importance of the legislative enact- ment by which it was averted, are most unmistakably shown in the current series of English reports. Able common-law judges, taking a part in the decision of equity causes, are frequently represented as attacking, and even denouncing, equitable principles and doctrines which have for centuries been treated by the court of chancery as fundamental and elementary, — principles which have been most fruitful in results, and have been applied in numberless forms to the equity jurisprudence. Can there ba a doubt that equity, exposed to such judicial attacks from members of the highest court, would gradually have succumbed, and finally ceased to be a dis- tinctive part of the English municipal law? (xi) xii Preface. cogent and convincing that it produced a deep impression, not only upon the English bench and bar, but even upon Parliament, and it ultimately led to an amendment of the act by the addition of the following clause, which has undoubtedly averted the antici- pated danger: "Generally, in all matters in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail." I have referred to this incident simply for the purpose of indi- cating its application, under like circumstances, to the law of our own country. The arguments of the English essayist were purely a priori, and were confined to the judicial system of England. They would apply with equal force to a large portion of the Amer- ican states ; and the correctness of his conclusions is established by the judicial experience of those commonwealths during the past thirty years. Since the first New York Code of Practice in 1848, about one half of the states and territories have adopted the Re- formed Procedure. As the central conception of this system is the abolition of all external distinctions between actions at law and suits in equity, the union of legal and equitable rights and remedies in one proceeding, and the substitution of many important equitable in place of legal methods, it was confidently supposed that in progress of time the doctrines of equity would obtain a supremacy over those of the law in the administration of justice, and that the entire jurisprudence of a state would gradually become more equitable, more informed with equitable notions. It must be confessed, I think, that the experience of the past thirty years in these states points to a directly contrary result. Every careful observer must admit that in all the states which have adopted the ■Reformed Procedure there has been, to a greater or less degree, a weakening, decrease, or disregard of equitable principles in the administration of justice. I would not be misunderstood. There has not, of course, been any conscious intentional abrogation or rejection of equity on the part of the courts. The tendency, how- ever, has plainly and steadily been towards the giving an undue prominence and superiority to purely legal rules, and the ignoring, forgetting, or suppression of equitable notions. The correctness of this conclusion cannot be questioned nor doubted; the consent- ing testimony of able lawyers who have practiced under both systems corroborates it; and no one can study the current series of Pkeface. xiii state reports without perceiving and acknowledging its truth. In short, the principles, doctrines, and rules of equity are certainly disappearing from the municipal law of a large number of the states, and this deterioration will go on until it is checked either by a legislative enactment, or by a general revival of the study of equity throughout the ranks of the legal profession. I would not be understood as condemning the Reformed Pro- cedure on this account. The tendency which I have mentioned may be checked; the danger is incidental, and can easily be pre- vented. A brief legislative enactment, substantially the same as that added to the English Judicature Act, would render the system perfect in theory, and would secure to equity the life and prom- inence which properly belong to it, and which should be preserved. The state of Connecticut has incorporated the clause into its recent reformatory legislation ; that it should not have been added to all the Codes of Procedure is very surprising. I need not dwell upon the disastrous consequences of the tend- ency above described, if it should go on to its final stage. Even a partial loss of equity would be a fatal injury to the jurisprudence of a state. So far as equitable rules differ from those of the law, they are confessedly more just and righteous, and their disappear- ance would be a long step backward in the progress of civilization. It is of vital importance, therefore, that a treatise on equity for the use of the American bar should be adapted to the existing condition of jurisprudence throughout so large a part of the United States. It should be based upon, and should present in the clearest light, those principles which lie at the foundation of equity, and which are the sources of its doctrines and rules. In this re- spect, the plan of the present work wa^ deliberately chosen, and has been steadily pursued, even when it has led to amplifications which might, perhaps, be regarded by some readers as unneces- sary. It has been my constant endeavor to present the great under- lying principles which sustain the whole superstructure of equity, and to discuss, explain, and illustrate them in the most complete manner. Some of these principles are so comprehensive and fruit- ful, that one who has grasped them in their fullness of conception has already mastered the system of equity; all else is the mere application of these grand truths to particular circumstances. Such a treatise, designed for the American profession, if it would at all meet and satisfy the needs of the bench and bar, must also xiv Preface. be based upon and adapted to the equitable jurisdiction which is actually possessed by the state and national courts, and the equi- table jurisprudence which is actually administered by them. It must recognize the existing condition, both of law and equity, the limitations upon the chancery jurisdiction resulting from varying statutes, and the alterations made by American legislation, institu- tions, and social habits. Many departments of equity, many doc- trines and modes of applying the jurisdiction which were important at an earlier day, and are perhaps still prominent in England, have become practically obsolete in this country ; while others have risen in consequence, and are constantly occupying the attention of the courts. It has been my purpose and endeavor to discuss and de- scribe the equity jurisprudence as viewed in this light, and to pre- sent the actual system which is now administered by the courts of the United States and of all the states. As an illustration, I have attempted to ascertain and determine the amount of jurisdiction held by the different state tribunals, as limited and defined by statutes, and established by judicial interpretation; and have not confined the treatment of this subject to a mere account of the gen- eral jurisdiction possessed by the English Court of Chancery. It is true that the fundamental principles are the same as those which were developed through the past centuries by the English chancery ; but the application of these principles, and the particular rules which have been deduced from them, have been shaped and deter- mined by the modern American national life, and have received the impress of the American national character. It has been my design, therefore, to furnish to the legal profession a treatise which should deal with the equity jurisdiction and jurisprudence as they now are throughout the United States; with their statutory modi- fications and limitations, and under their different types and forms in various groups of states; and thus to prepare a work which would be useful to the bench and bar in all parts of our country. During its composition I have constantly had before me a high ideal. The difficulty in carrying out this conception has been very great; the labor which it has required has been enormous. . That I may have fallen short of this ideal in all its completeness and perfection, I am only too conscious ; its full realization was perhaps impossible. If the book shall be of any help to the courts and the profession in administering equitable doctrines and rules ; if it shall be of any assistance to students in disclosing the grand principles Preface. xv of equity; if it shall to any extent maintain the equitable juris- prudence in its true position as a constituent part of the municipal law, — then the time and labor spent in its composition will be amply repaid. The internal plan, the system of classification and arrangement, the modes of treatment, and especially the reasons for departing from the order and methods which have usually been followed by text-writers, are described at large in the third, fourth, and fifth sections of the Introductory Chapter. To that chapter I would respectfully refer any reader who may at the outset desire a full explanation of these matters, which are so important to a full un- derstanding of an author's purposes, and to a correct appreciation of his work. The book is submitted to the profession with the hope that it may be of some aid to them in their judicial and forensic duties, and may accomplish something for the promotion of justice, righteousness, and equity in the legal and business transactions and relations of society. J. N. P. Hastings (College of the Law. San Feancisco, May, 1&81. TABLE OF CONTENTS. CONTENTS OF VOLUME I. INTRODUCTORY CHAPTER. ' SECTION I. THE ORIGIN OF EQUITY JURISDICTION AND JURISPRU- DENCE. § 1. Object of this Introduction, §§ 2-9. Mquitas in the Roman Law. §§ 10-42. Origin of Equity in the English Law. §§ 10-13. Primitive condition of the law and the courts. §§ 14, 15. Early influences of the Roman Law. §§ 16-29. Causes which made a court of equity necessary. §§ 21-23. The earliest common-law actions and procedure. § 24. Statute of Edward I. concerning new writs. §§ 25-29. Limited results of this legislation. §§ 30-42. Commencement and progress of the chancery jurisdiction. § 31. Original powers of the King's Council. §32. Original common-law jurisdiction of the Chancellor. §§33-35. Jurisdiction of grace transferred to the Chancellor; Statute 24 Edward III. §§ 36-39. Development of the equitable jurisdiction. § 40. Abolition of the court in England and in many American statea. §§ 41, 42. Equity jurisdiction in other American states. SECTION n. THE NATURE OF EQUITY. § 43. Importance of a correct notion of equity. §§44,45. Various meanings given to the word. §§46,47. True meaning as a department of our jurisprudence, §§ 48-54. Theories of the early chancellors concerning equity as both supply- ing and correcting the common law. §§55-58. Sources from which the early chancellors took their doctrines; theii notions of "conscience" as a ground of their authority. §§ 59-61. Equity finally established upon a basis of settled principles. § 62. How the equitable jurisdiction is determined at the present day. §§63-67. Recapitulation: Nature of equity stated in four propositions. (xvii) XVlll TABLE OF CONTENTS. SECTION III. THE PRESENT RELATIONS OF EQUITY WITH THE LAW. § 68. Importance of correctly understanding these present relations. § 69. Changes in the relations of equity to the law effected partly by statute and partly by decisions. §§ 70-88. Important instances of such changes in these relations. § 70. In legal rules concerning the effect of the seal. § 71. iji'ifo suits on lost instruments. § 72. Ditto forfeitures and penalties. §§ 73, 74. Ditto mortgages of land. § 75. In statutes concerning express trusts. § 76. Ditto recording and doctrine of prioritiea. § 77. Ditto administration of decedents' estates. § 78. Ditto jurisdiction over infants. §§ 79, 80. Ditto married women's property. § 81. . In statutory restrictions upon the equitable jurisdiction. §§ 82, 83. In the practical abolition of the "auxiliary" jurisdiction. §§ 84-88. In the Reformed Procedure combining legal and equitable methods. SECTION IV. THE CONSTITUENT PARTS OF EQUITY. § 89. Object of this section. §§ 90, 91. Rights are either "primary" or "remedial"; each described. §92. Divisions of "primary" rights, viz: 1. Those concerned with per- sonal status; 2. Those concerned with things. §§ 93-9'5. Two general classes of rights concerned with things, viz.: "real" and "personal" ; each described. §§ 96, 97. What of these kinds of rights are embraced within equity; both "primary" and "remedial." §§ 98-107. I. Equitable primary rights, kinds and classes of. §§ 108-116. II. Equitable remedial rights, kinds and classes of. § 112. General classes of equitable remedies. §§ 113-116. Mode of administering them. § 116. How far legal and equitable modes can be combined. § 117. Recapitulation. SECTION V. THE PRINCIPLES OF CLASSIFICATION. § 118. Importance and difficulty of a correct classification. §§ 119, 120. Different grounds which might be taken for a classification. §§ 121-125. Ordinary mode of classification according to the nature of the jurisdiction. § 121. In the three divisions of exclusive, concurrent, and auxiliary. TABLE OF CONTENTS. XIX §§122, 12.S. DilTcront modes of carrying out this system by various writers. §§]24, 125. I\indaniental objections to this system of classification. §§ 126, 127. The true principles of classification in the present condition of Equity. § 128. Plan and order of arrangement adopted in this treatise. PART FIRST. THE NATURE AND EXTENT OF EQUITY JURISDICTION. CHAPTER FIE ST. THE GENERAL DOCTRINE CONCERNING THE JURISDICTION. SECTION I. FUNDAMENTAL PRINCIPLES AND DIVISIONS. § 129. Equity jurisdiction defined. § 130. Eequisitea in order that a case may come within it. § 131. Distinction between the existence of equity jurisdiction and the proper exercise of it. § 132. . Inadequacy of legal remedies, how far the test. §133, Equity jurisdiction depends on two facts: the existence of equi- table interests, and the inadequacy of legal remedies. §§ 134, 135. How far the jurisdiction is i/n personam, how far ih rem. § 136. Equity jurisdiction threefold, — exclusive, concurrent, and aux- iliary. §§ 137, 138. What embraced in the exclusive jurisdiction. §§ 139, 140. What embraced in the concurrent jurisdiction. § 141. Cases may fall under both. §§ 142-144. What embraced in the auxiliary jurisdiction. § 145. Order of subjects. SECTION II. THE EXCLUSIVE JURISDICTION. § 146. Equitable primary rights and "equities" defined. §§ 147-149. Equitable estates described. § 150. Certain distinctive equitable doctrines forming part of equity jurisprudence. §§ 151-155. Trusts described. § 156. Executors and administrators. §§157,158. Fiduciary relations. §§ 159, 160. Married women's separate property. § 161. Estates arising from equitable conversion. XX TABLE OF CONTENTS. §§162,163. Mortgages of land. § 164. Mortgages of personal property. §§ 165-167. Equitable liens. §§ 168, 169. Estates arising from assignment' of things in action, possibilities, etc., and from an equitable assignment of a fund. §§ 170-172. Exclusive equitable remedies described. SECTION III. THE CONCURRENT JURISDICTION. §§ 173, 174. What embraced in the concurrent jurisdiction; inadequacy of legal remedies defined. § 175. The remedies given must be legal in their nature. §§ 176-179. General principle; when no concurrent jurisdiction exists. §§177,178. Examples of such cases. § 179. Where a law court has first taken cognizance of a case. § 180. General principle; where concurrent jurisdiction does exist. § 181. Eule Urst. Where equity has jurisdiction for any partial pur- pose, it may retain the cause for all purposes. § 182. Eule second. Where equity originally had jurisdiction, and the law subsequently acquires jurisdiction over the same matter, the equity jurisdiction still continues. § 183. Effect of the reformed procedure upon the equity jurisdiction. §§ 184^189. Enumeration of the principal matters over which the concurrent jurisdiction ordinarily extends. § 185.^ Suits for the recovery of lands and of chattels. §§ 186-188. Suits for pecuniary recoveries. § 188. Suits arising from accident^ mistake, or fraud. § 189. Other special eases. SECTION IV. THE AUXILIARY JURISDICTION. § 190. The auxiliary jurisdiction defined. §§ 191-209. Of discovery. § 191. Definition and kinds of discovery, § 192. Origin of, in English and in Roman law. §§193,194. Effect of modern legislation; how far discovery proper has been abolished by statutes. § 195. General doctrine; when discovery will or will not be enforced. §§ 196, 197. I. What judicial proceedings, in what courts, will be aided by discovery in equity. §§ 198-200. II. The parties; their situation and relations to each other, in order that a discovery may be granted. § 198. The plaintiff. § 199. The defendant. § 200. A l}ona fide purchaser. TABLE OF CONTENTS. XXI §§ 201-207. III. The nature, subject-matter, and objects of the discovery itself; of what the plaintiff may compel discovery, and the defendant must make discovery. §201. General doctrine; of what facts discovery will be compelled. § 202. Of what kinds of facts discovery will not be compelled. § 203. What is privileged from discovery. § 204. The manner in which the defendant must make discovery. §§ 205-207. Production and inspection of documents. § 208. IV. When, how far, and for whom may the answer in the dis- covery suit be used as evidence. § 209. How far the foregoing rules have been altered by statute. §§ 210-215. Of the examination of witnesses. § 210. This branch of the jurisdiction described. §§211,212. I. Suit to perpetuate testimony. § 212. Statutory modes substituted. §§ 213-215. II. Suits to take the testimony of witnesses de bene esse, and of witnesses in a foreign country. § 215. Statutory modes substituted. CHAPTER SECOND. GENERAL RULES FOR THE GOVERNMENT OF THE JURIS- DICTION. SECTION I. INADEQUACY OF LEGAL REMEDIES. § 216. Questions to be examined stated. § 217. Inadequacy of legal remedies is the very foundation of the con- current jurisdiction. § 218. Is only the occasion for the rightful exercise of the exclusive jurisdiction. § 219. Operation of the principle upon the exclusive jurisdiction ; does not affect the first branch, which deals with equitable estates and interests. g§ 220, 221. Is confined to the second branch, which deals with equitable remedies. § 222. Summary of the equity jurisdiction as affected by the inade- quacy of remedies. SECTION II. DISCOVERY AS A SOURCE OR OCCASION OF JURISDICTION. § 223. General doctrine as to discovery as a source of concurrent and an occasion for exclusive jurisdiction. §§224,225. Early English rule. § 226. Present English rule. XXn TABLE OF CONTENTS. §§ 227-229. Broad rule established in some American states. § 229. The limitations of this rule. § 230. The true extent and meaning of this rule examined. SECTION III. THE DOCTRINE THAT JURISDICTION EXISTING OVER SOME PORTION OR INCIDENT EXTENDS TO AND EMBRACES THE WHOLE SUBJECT-MATTER OR CONTROVERSY. § 231. The doctrine as applied in the concurrent jurisdiction. § 232. As applied in the exclusive jurisdiction. § 233. Limitations on the doctrine. 6§ 234-241. Illustrations of the doctrine. § 234. In cases of discovery. § 235. In cases of administration. § 236. In cases of injunction. § 237. In cases of waste, nuisance, damages. §§ 238-241. In various other cases. § 242. Effect of the reformed procedure on the doctrine. SECTION IV. THE DOCTRINE THAT JURISDICTION EXISTS IN ORDER TO PREVENT A MULTIPLICITY OF SUITS. § 243. The doctrine applies to both kinds of jurisdiction. § 244. The questions to be examined stated. § 245. Four possible classes of cases to which the doctrine may apply. §§ 246-248. "Bills of peace," rationale of, and examples. § 248. Bills "to quiet title" explained. §§ 249-251. Eationale of the doctrine examined on principle. [§25114. Jurisdiction not exercised when that would be ineffectual; sim- plifying of the issues essential. § 251%. There must be a practical necessity for the exercise of the juris- diction.] §§ 252-261. Examination of the doctrine upon judicial authority. § 252. First class. §§ 253, 254. Second class. §§ 255-261. Third and fourth classes. §256. Community of interest: "Fisheries Case"; "Case of the Duties." § 257. Where proprietors of distinct tracts of land have been injured by one wrong. § 258. Where proprietors of distinct tracts of land have been relieved from illegal local assessments. §§ 259, 260. General rule as to relief from illegal taxes, assessments, and public burdens, on the ground of multiplicity of suits. § 261. Other special cases of the third and fourth classes. TABLE OF CONTENTS. XXlll §§ 262-266. Examination of opposing decisions; conclusions reached by such decisions. § 263. In the first and second classes. §§ 264-266. In the third and fourth classes. §§ 265, 266. In cases of illegal taxes and other public burdens. §§ 267-270. Conclusions derived from the entire discussion. §§ 268-270. Ditto as to the third and fourth classes. §§ 271-274. Enumeration of cases in which the jurisdiction to avoid a multi- plicity of suits has been exercised. § 271. Cases of the first class. § 272. Cases of the second class. § 273. Cases of the third class. § 274. Cases of the fourth class. § 275. The jurisdiction based upon statute. SECTION V. THE DOCTRINE THAT THE JURISDICTION ONCE EXISTING IS NOT LOST BECAUSE THE COURTS OF LAW HAVE SUBSE- QUENTLY ACQUIRED A LIKE AUTHORITY. § 276. The doctrine is applied to both kinds of jurisdiction. §§277,278. "Where the jurisdiction at law has been enlarged entirely by the action of the law courts. § 278. Ditto, examples. §§ 279-281. "Where the jurisdiction at law has been enlarged by statutes. § 280. Ditto, examples. § 281. "Where such statute destroys the previous equity jurisdiction. CHAPTEK THIRD THE JURISDICTION AS HELD BY THE COURTS OF THE SEV- ERAL STATES, AND BY THE COURTS OF THE UNITED STATES. SECTION I. ABSTRACT OF LEGISLATIVE PROVISIONS. § 2S2. Source of jurisdiction, both legal and equitable, of the courts in the American states. § 283. Division of the states into four classes with respect to the amount of equity jurisdiction given to their courts. § 284. The first class of states. § 285. Tlie second class of states. § 286. The third class of states. § 287. The fourth class of states. § 288. Summary of conclusions. XXIV TABLE OF CONTENTS. SECTION II. THE JURISDICTION AS ESTABLISHED BY JUDICIAL INTER- PRETATIuN. § 289. The questions to be examined stated. § 290. Diversity of statutory interpretation in different states. §§ 291-298. United States courts, equity jurisdiction of. § 292. First principle: Uniformity of jurisdiction. § 293. Second principle: Identity of jurisdiction. §294, Third principle: Extent of tlie jurisdiction. § 295. Fourth principle : Inadequacy of legal remedies. §§ 296, 297. Illustrations. §297. Ditto; effect of state laws on the subject-matter of the juris- diction. § 298. Territorial limitations on the jurisdiction. g§ 299-341. States in which only a special and partial jurisdiction has been given by statute. §§ 299-310. New Hampshire. §§ 311-321. Massachusetts, §§ 322-337. Maine. §§ 338-341. Pennsylvania. §§ 342-352. The other states in wWch a general jurisdiction has been given. § 342. "What states are included in this division. § 343. Questions to be examined stated. § 344. Interpretation of statute limiting the jurisdiction to eases for which the legal remedy is inadequate. §345. General extent of the statutory jurisdiction; the states arranged in the foot-note. §§ 346-352. How far this equity jurisdiction extends to the administration of decedents' estates. § 347. Probate courts, jurisdiction and powers of. § 348. Class first: The ordinary equity jurisdiction over administrations expressly abolished. § 349. Class second : Such jurisdiction practically abrogated or obsolete. §350. Class third: Such jurisdiction still existing and actually con- current. §§ 351, 352. Special subjects of equity jurisdiction connected with or grow- ing out of administrations. §§ 353-358. States which have adopted the reformed system of procedure. § 354. General effect of this procedure on the equity jurisdiction. §§ 355-358. Its particular effects upon equity. § 356. On certain equitable interests and rights. § 357. On certain equitable remedies. § 358. On the doctrine as to inadequacy of legal remedies. TABLE OF CONTENTS. XXV PART SECOND. THE MAXIMS AND GENERAL PRINCIPLES OF EQUITY JURISPRUDENCE, AND THE EVENTS WHICH ARE OCCASIONS OF EQUITABLE PRIMARY OR REMEDIAL RIGHTS. PRELIMINARY SECTION. § 359'. Objects, questions, and divisions, stated. § 360. Equitable principles, described. § 361. Equitable doctrines, described. § 362. Occasions of equitable rights. CHAPTER FIRST. THE FUNDAMENTAL PRINCIPLES OR MAXIMS OF EQUITY. SECTION I. EQUITY REGARDS THAT AS DONE WHICH OUGHT TO BE DONE. § 363. List of equitable maxims. §364. Equity regards as done what ought to be done; its importance. §§ 365-377. Its true meaning, and its effects upon equitable doctriues. §§ 366-369. Is the source of equitable property and estates. § 366. Sources of legal property or titles described. § 367. Effect of an executory contract at law. § 368. Effect of an executory contract in equity. § 369. Sources of aU kinds of equitable property described. §§ 370-376. The equitable estates which are derived from this principle. § 371. Conversion. § 372. Contracts for the purchase and sale of lands. §373. Assignments of possibilities; sale of chattels to be acquired in the future; assignments of things in action; equitable assign- ments of moneys; and equitable liens. § 374. Express trusts. § 375. Trusts arising by operation of law. § 376. Mortgage; equity of redemption. § 377. Conclusions. SECTION II. EQUITY LOOKS TO THE INTENT RATHER THAN TO THE FORM. § 378. Its meaning and effect. § 379. Legal requirements of mere form. XXVI TABLE OF CONTENTS. §§ 380-384. Is the source of equitable doctrinea. § 380. Of equitable property. §381. Of penalties and forfeitures. § o82. Of mortgages. § 383. Effect of the seal. § 384. Other special instances. SECTION III. HE WHO SEEKS EQUITY MUST DO EQUITY. § 385. General meaning of the principle. §§386,387. In what eases applicable. § 388. Is a general rule regulating the administration of reliefs. §§ 389-393. Illustrations of the principle. § 389. The wife's equity. § 390. Equitable estoppel. § 391. Relief against usury. §§ 392, 393. Other special instances. §§ 394-396. Is also the source of certain equitable doctrines. § 395. Of election. § 396. Of marshaling securities. SECTION IV. HE WHO COMES INTO EQUITY MUST COME WITH CLEAN HANDS. § 397. General meaning of this principle. § 398. Is based upon conscience and good faith. § 399. Limitations upon it. §§ 400-403. Illustrations of its application. § 400. In specific performance. § 401. In cases of fraud. § 402. In cases of illegality. §403. Limitation in cases of fraud and illegality; parties not in pari delicto. § 404. Conclusion. SECTION V. EQUALITY IS EQUITY. § 405. Its general meaning. §§ 406-411. Its effects upon certain equitable doctrines. §§ 406, 407. Of pro rata distribution and contribution. § 408. Ownership in common. § 409. Joint indebtedness; liability of estate of deceased joint debtor. §410. Settlement of insolvent estates; marshaling of assets. §411. Abatement of legacies; apportionment of liens; appointment un- der trust powers; contribution among co-sureties and co-con- tractors. § 412. Conclusion. TABLE OF CONTENTS. XXVll SECTION VI. WHERE THERE ARE EQUAL EQUITIES, THE FIRST IN ORDER OF TIME SHALL PREVAIL. § 413. Its application. § 414. Its true meaning; opinion in Rice v. Bice. § 415. Its eifect upon equitable doctrines. SECTION VII. WHERE THERE IS EQUAL EQUITY, THE LAW MUST PREVAIL. § 416. its appHeation. § 417. Its meaning and eifects. SECTION VIII. EQUITY AIDS THE VIGILANT, NOT THOSE WHO SLUMBER ON THEIR RIGHTS. § 418. Its meaning; is a rule controlling the administration o£ remedies. § 419. Its application and effects. SECTION IX. EQUITY IMPUTES AN INTENTION TO FULFILL AN OBLIGATION. § 420. Its meaning and application. §§421,422. Is the source of certain equitable doctrines. § 421. Performance of covenants. § 422. Trust resulting from acts of a trustee. SECTION X. EQUITY WILL NOT SUFFER A WRONG WITHOUT A REMEDY. ■ § 423. Its general meaning and effects. § 424. Limitations upon it. SECTION XL EQUITY FOLLOWS THE LAW. §§ 425, 426. Twofold meaning of the principle. § 425. First, in obeying the law : Heard v. Stamford, per Lord Chan- cellor Talbot. §426. Second, in applying certain legal rules to equitable estates: Cow- per V. Cowper, per Sir J. Jckyll, M. R. § 427. Operates within very narrow limits. XXVlll TABLE OF CONTENTS. SECTION XII. EQUITY ACTS IN PERSONAM, AND NOT IN REM. § 428. Origin and original meaning of this principle. § 429. In what sense equitable remedies do operate in rem. §§ 430,431. The principle that courts of equity act upon the conscience of a party explained. § 431. The same, per Lord Westbury. CHAPTER SECOND. CERTAIN DISTINCTIVE DOCTRINES OF EQUITY JURISPRU- DENCE. SECTION I. CONCERNING PENALTIES AND FORFEITURES. §432. 433-447. §433. §434. 435, 436. §436. 437-445. §437. §438. §439. 440-445. §440. 441-445. §441. §442. §443. §444. §445. §446. §447. 448-460. 449-458. §450. Questions stated. Penalties; equitable relief against. General ground and mode of interference. Form of relief; when given at law. What are penalties. To secure the payment of money alone. Stipulations not penalties. Stipulations in the alternative. Ditto, for the reduction of an existing debt upon prompt payment. Ditto, for accelerating payment of an existing debt. Ditto, for "liquidated damages." "Liquidated damages" described in general. Rules determining between liquidated damages and penalties. 1. Payment of a smaller sum secured by a larger. 2. Agreement for the performance or non-performance of a single act. 3. Agreement for the performance or non-performance of several acts of different degrees of importance. 4. The party liable in the same amount for a partial and for a complete default. 5. Stipulation to pay a fixed sum on default in one of several acts. Specific performance of a contract enforced, although a penalty is attached; party cannot elect to pay the penalty and not per- form. Otherwise as to stipulation for liquidated damages. Of forfeitures. When equity will relieve against forfeitures. General ground and extent of such relief. TABLE OF CONTENTS. XXIX § 451. Relief when forfeiture is occasioned by accident, fraud, mistake, surprise, or ignorance. § 452. No relief wlien forfeiture is occasioned by negligence, or is willful. 453, 454. Relief against forfeitures arising from covenants in leases. § 455. Ditto, from contracts for the sale of lands. § 456. Ditto, from other special contracts. § 457. Ditto, of shares of stock for non-payment of calls. § 458. Ditto, when created by statute. 459, 460. Equity will not enforce a forfeiture. SECTION n. CONCERNING ELECTION. § 461. Questions stated. §§ 462-465. Batio7iale of the doctrine discussed. § 463. In the Roman law. § 464. Foundation, the presumed intention of the donor. § 466. The true foundation is the principle, He who seeks equity muat do equity. §§466-470. Meaning, extent, and effects of the doctrine. § 466. Election in conformity with instrument of donation. §§467,468. Election in opposition thereto; rules; compensation. § 469. No election unless compensation can be made. § 470. Applies to all instruments of donation. §§471-505. Applications; classes of cases in which the necessity for an elec- tion does or does not arise. § 472. Fundamental rule; what creates the necessity for an election. §§ 473-475. Subordinate rules of interpretation. §§473,474. Donor has only a partial interest; evidence of intention not ad- missible; a general gift raises no election. § 475. Other special rules of interpretation. §§ 476—486. First class: Donor gives property wholly another's. § 477. Ordinary case, gift of specific property. §§ 478-480. Under appointments in pursuance of powers. §§ 481-486. Where testator has attempted to give property by a will which is ineffectual. § 482. Infancy or coverture of testator. § 483. Will valid as to personal, invalid as to real, estate. § 484. Will invalid as to property in another state or country. § 485. Will devising after-acquired lands. § 486. Will of copyholds. §§ 487-505. Second class: Donor gives property in which he has a partial interest. § 488. The general doctrine. § 489. Donor owns only an undivided share. § 490. Donor owns only a future interest. § 491. Devise of lands encumbered. XXX TABLE OF CONTENTS. §§492-502. Dower; widow's election between dower and gifts by her hus- band's will. § 493. The general rule. § 494. Contrary legislation in various states. ■*§§ 495-502. Classes of testamentary dispositions. § 496. Express declaration. § 497. Devise of a part of testator's land to the widow, and the rest to others. § 498. Devise to the widow for life. § 499. Devise in trust' to sell, or with a power of sale. § 500. Gift of an annuity, etc., to widow, charged upon the lands devised to others. § 501. Devise with express power of occupying, leasing, etc. § 502. Devise to widow and others in equal shares. §§ 503-505. Election in devises of community property. § 506. The remaining questions stated. §§507-510. Who may elect; married women; infants; lunatics. §§511,512. Eights and privileges of persons bound to elect. § 513. Time of election; state statutes. §§514,515. Mode of election, express or implied; conduct amounting to an election. §§ 516, 517. Effects of an election. §§518,519. Equitable jurisdiction in matters of election. TABLE Oi'^ CONTENTS. XXXI CONTENTS OF VOLUME II. SECTION TIL CONCERNING SATISFACTION. § 520. Questions stated. § 521. Definition. §§ 522-525. Various conditions of fact. § 523. Eationale of the doctrine. § 524. Ademption and satisfaction. § 525. Extrinsic evidence. § 526. Divisions of the subject. §§ 527-543. I. Satisfaction of debts by legacies. §§ 527-540. Legacy by a debtor to his creditor, §§ 528-536. Various circumstances which prevent the presumption of satis- faction. § 537, Direction in will to pay debts, § 538, Legacy in pursuance of agreement, or in express payment. § 539. Debt owing to a child or wife. § 540. Debt to child satisfied by an advancement. §§ 541, 542. Legacy by a creditor to his debtor. § 543. Satisfaction of debt, how enforced. §§ 544—552. II. Satisfaction of legacies by subsequent legacies. § 545. Kule first : Specific legacies. §§546-548, Eule second: Legacies of quantity by different instruments. § 549. Kule third: Legacies of equal amounts by the same instrument. §§550,551. Eule fourth: Legacies of unequal amounts by the same instru- ment, § 552. Extrinsic evidence. §§ 553-564, III, Satisfaction of legacies by portions and advancement's. § 554, Presumption of satisfaction. § 555. Subsequent gift less than the legacy. § 556. Person in loco parentis. §§ 557-560. Circumstances which do or do not prevent the presumption. § 559. Payment to husband of a female legatee. § 560. What prevents the presumption. § 561. Effect of a codicil. § 562, Satisfaction of legacies between strangers. 5§ 563, 564, Satisfaction, when not presumed, but expressed, §§565-568, IV, Satisfaction of portions by subsequent legacies, or other sim- ilar provisions. §§ 566, 567. Differences between the gifts which do not and which do defeat the presumption. 8 568. Election by the beneficiary. XXXll TABLE OF CONTENTS. §§ 5&9-577. V. Admissibility and effect of extrinsic evidence. § 570. General principles discussed and explained. §§ 571-575. When the subsequent benefit is given by a writing. § 572. The writing expressly states the donor's intention. § 573. The writing silent as to donor's intention, and no presumption arises from it § 574. The writing silent as to donor's intention, but a presumption of satisfaction arises from it. § 575. Cases to which the foregoing rules apply. § 576. When the subsequent benefit is given verbally. § 577. Amount of evidence. SECTION IV. CONCERNING PERFORMANCE. § 678. EationcUe. § 579. Definition. §§ 580-583. I. Covenant to purchase and settle or convey. § 580. General rule : Lechmere v. Earl of Carlisle. § 581. Forms of covenant to which the rule applies. § 582. Special rules. § 583. Such covenant creates no lien. §§ 584-586. II. Covenant to bequeath personal property. § 584. General rule: Blandy v. "W^idmore; Goldsmid v. Goldsmid. § 585. Limitations on the rule; covenant must not create a debt in life- time of deceased. §586. A legacy not a performance; distinction between "performance" and "satisfaction of legacy." § 687. Presumption of performance by trustees. §§ 588-590. Meritorious or imperfect consideration; theory of. §§589,590. Defective execution of powers; relief of. § 590. Requisites for such relief; a partial execution necessary. SECTION V. CONCERNING NOTICE. § 591. Questions stated: Le Neve v. Le Neve. § 592. Knowledge and notice distinguished. § 593. Kinds; actual and constructive. § 594. Definition. §§ 595-603. Actual notice. § 596. When shown by indirect evidence. §597. What constitutes; rumors; putting on inquiry, etc. §§ 598-602. Special rules concerning actual notice. § 603. Effect of knowledge instead of notice. §§ 604-609. § 605. §§606,607. §608. § 609. §§ 610-613. §§ 614-625. §§614,615. §§616-618. §§ 619-622. §§623,624. §625. §§ 626-631. §626. §§ 627-631. §§ 632-640. §632. §§ 633, 634, §§635,636. §§637,638. §§ 639,640. §§ 641-643. §§ 644-665. §§ 645,646. §§ 647-649. §§ 650-654. § 655. §§ 656-658. §657. §658. §§ 659, 660. §§ 661-665. §662. §§ 663, 664. §665. §§ 666-676. §§ 666-669. §§670-675. § 670. 8§ 671.672. §673. §§ 674, 675. § 676. TABLE OF CONTENTS. XXXiil Constructive notice in general. Jones V. Smith, opinion of Wigram, V. C When the presumption is rebuttable; due inquiry. When it is conclusive. Species of constructive notice. 1. By extraneous facts; acts of fraurl, negligence, or mistane; general rule as to putting on inquiry; visible objects, etc. 2. By possession or tenancy. General rules, English and American. Extent and effect of the notice. Nature and time of the possession. Whether the presumption is rebuttable or not. Possession by a tenant or lessee. 3. By recitals or references in instruments of title. General rules. Nature and extent of the notice; limitations; instances, etc. 4. By lis pendens. Bationale: Bellamy v. Sabine. General rules ; requisites. To what kind of suits the rule applies. What persons are affected. Statutory notice of lis pendens. 5. By judgments. 6. By recording or registration of instruments. (1) The statutory system; abstract of statutes. (2) General theory, scope, and object of the legislation. (3) Requisites of the record, in order that it may be a notice, (4) Of what the record is a notice. (5) To whom the record is a notice. Not to prior parties. To subsequent parties holding under the same source of title; effect of a break in the record. (6) Effect of other kinds of notice, in the absence of a record. (7) What kinds of notice will produce this effect. English rule. Conflicting American rules; actual or constructive notice. True rationale of notice in place of a record. 7. Notice between principal and agent. Scope and applications. Requisites of the notice. (1) Notice must be received by agent during his actual employ- ment. (2) And in the same ttansaction; when in a prior transaction. (3) Information must be material; presumption that it was com- municated to the principal. Exceptions; agent's own fraud. True rationale of this rule. XXXIV TABLE OF CONTENTS. SECTION VI. CONCERNING PRIORITIES. § 677. Questions stated. §§ 678-692. First. The fundamental principles. §§ 679-681. I. Estates and interests to which the doctrine applies. § 682. II. Equitable doctrine of priority, in generaL §§ 683-692. in. Superior and equal equities. § 683. When equities are equal. §§ 684-692. Superior equities defined and described. § 685. 1. From their intrinsic nature. §§686,687. 2. From the effects of fraud and negligence. §§ 688-692. 3. From the effects of notice. § 688. General rules and illustrations. § 689. Notice of a prior covenant. §§ 690-692. Time of giving notice, and of what it consists. §§ 693-734. Second. Applications of these principles. §§ 693-715. Assignments of things in action. § 693. Dearie v. Hall. §§ 694-696. I. Notice by the assignee. § 694. Notice to debtor not necessary as between assignor and assignee, §§ 695-697. English rule, notice to debtor necessary to determine the priority among successive assignees. §§ 698-702. II. Diligence of the assignee. § 698. General rules : Judson v. Corcoran. §§ 699-701. Assignment of stock as between assignee and assignor and tha company, judgment creditors of assignor, and subsequent pur- chasers. § 702. Notice to the debtor necessary to prevent his subsequent acts. §§ 703-715. m. Assignments of things in action subject to equities. §§ 704-706. 1. Equities in favor of the debtor, § 704. General rule: assignments of mortgages; kinds of defenses. §§ 705, 706. Provisions in codes of procedure. §§ 707-713. 2. Equities bet-ween successive assignors and assignees. § 707. Conflicting decisions; mode of reconciling. §§708,709. General rule: assignment subject to latent equities; illustrations. §§ 710,711. When the rule does not apply; effect of estoppel; true limits of the estoppel as applied to such assignments. § 712. Subsequent assignee obtaining the legal title protected as a bona fide purchaser. § 713. Successive assignments by same assignor to different assignees. §§ 714, 715. 3. Equities in favor of third persons. § 714. General rule: assignments subject to such equities. § 715. Contrary rule: assignments free from all latent equities. ,?§ 716-732. Equitable estates, mortgages, liens, and other interests. § 717. Doctrine of priorities modified by recording acts, §§ 718, 719. I. Priority of time among equal equities. § 719. Illustrations: simultaneous mortgages, substituted liens, etft. TABLE OP CONTENTS. XXXV §§ 720-726. II. One equity intrinsically the superior. § 720. Prior geTieral and subsequent specific lien. §§ 721, 722. Prior unrecorded mortgage and subsequent docketed judgment. § 723. Same, where judgment creditor had notice. § 724. Prior unrecorded mortgage and purchase at execution sale under a subsequent judgment. § 725. Purchase money mortgages. § 726. Other illustrations. §§ 727-729. III. A subsequent equity protected by obtaining the legal title. § 728. Legal estate obtained from a trustee. § 729. Legal estate obtained after notice of prior equity. § 730. IV. Notice of existing equities. §§731,732. V. Effect of fraud or negligence upon priorities. §§ 733, 734. Assignments of mortgages, rights of priority depending upon them. SECTION VIL CONCERNING BONA FIDE PURCHASE FOR A VALUABLE CONSIDERATION AND WITHOUT NOTICE. § 735. General meaning and scope of the doctrine. § 736. General effect of the recording acts. §§ 737-744. First. Bationaie of the doctrine. § 738. Its purely equitable origin, nature, and operation. § 739. It is not a rule of property or of title. §§740,741. General extent and limits; kinds of estates protected. §§742,743. Phillips v. Phillips; formula of Lord Westbury. §§ 745-762. Second. What constitutes a bona fide purchase. §§ 746-751. I. The valuable consideration. § 747. 1. What is a valuable consideration ; illustrations. §§ 748, 749. Antecedent debts, securing or satisfying; giving time, etc §§750,751. 2. Payment; effect of part payment; giving security. §§ 752-761. II. Absence of notice. § 753. 1. Effects of notice in general. § 754. Second purchase without notice from first purchaser with, also second purchaser ivith from first purchaser without notice. §755. 2. Time of giving notice; English and American rules. § 756. Effect of notice to a hoiia fide purchaser of an equitable interest before he obtains a deed of the legal estate. §§ 757-761. 3. Eecording in connection with notice. § 758. Interest under a prior unrecorded instrument. § 759. Requisites to protection from the first record by a subsequent purchaser. § 760. Purchaser in good faith with apparent record title from a grantor charged with notice of a prior unrecorded conveyance. §761. Break in the record title; when purchaser is still charged with notice of a prior instrument. § 762. III. Good faith. XXX VI TABLE OF CONTENTS. §§ 7G3-778. Third. Effects of a bona fide puiclmse as a defense. § 764. I. Suits by holder of legal estate under the auxiliary jurisdic- tion of equity, discovery, etc. § 765. Same: exceptions and limitations. §§ 766-774. II. Suits by holder of an equitable estate or interest against a purchaser of the legal estate. § 767. Legal estate acquired by the original purchase. § 768. Purchaser first of an equitable interest subsequently acquires the legal estate; tabula in naufragio. § 769. Extent and limits of this rule. § 770. Purchaser acquires the legal estate from a trustee. §§ 771-773. The rule as applied in the United States. § 774. Other instances; purchase at execution sale; purchase of things in action. §§ 775-778. IIT. Suits by holders of an "equity." § 776. For relief against accident or mistake. §§ 777, 778. For relief from fraud, upon creditors, or between parties. §§ 779-783. Fourth. Affirmative relief to a bana fide purcliaser. § 779. General rule. §§ 780-782. Illustrations. § 783. Kemoving a cloud from title. §§ 784, 785. Fifth. Mode and form of the defense. § 784. The pleadings. § 785. Necessary allegations and proofs. SECTION VIII. CONCERNING MERGER. § 786. Origin and nature of the doctrine. §§ 787, 788. First. Merger of estates. § 787. I. The legal doctrine. § 788. II. The equitable doctrine. §§ 789-800. Second. Merger of charges. § 790. I. The owner of the property becomes entitled to the charge. § 791. Same. Intention prevents a merger. § 792. Time and mode of expressing the intention. §793. Conveyance to the mortgagee; assignment to the mortgagor or to his grantee. § 794. Merger never prevented when fraud or wrong would result. § 795. Life tenant becomes entitled to the charge. § 796. II. The owner of the land pays off a charge upon it. § 797. Owner in fee personally liable for the debt pays off a charge. § 798. Owner who is not liable for the debt pays off a charge. § 799. Life tenant pays off a charge. § 800. Priorities affected by merger. TABLE 01-' C0^TE2sTS. XXXVll SECTION IX. CONCERNING EQUITABLE ESTOl'l^l^L. § 801. Nature of the rights created by estoppel. § 802. Origin of equitable estoppel. § 803. How far fraud is essential in equitable estoppels. § 804. Definition. § 805. Essential elements constituting the estoppel. § 806. Theory that a fraudulent intent is essentinl. § 807. Fraudulent intent necessary in an estoppel affecting the legal title to land. §§ 808-812. Ecquisites further illustrated. § 808. The conduct of the party estopped. § 809. Knowledge of the truth by the party estopped, § 810. Ignorance of the truth by the other party. § 811. Intention by the party who is estopped. § 812. The conduct must be relied upon, and be an inducement for the other party to act. § 813. Operation and extent of the estoppel. § 814. As applied to married women. § 815. As applied to infants. §§ 816-821. Important applications in equity. § 816. Acquiescence. § 817. Same: as preventing remedies. § 818. Same: as an estoppel to rights of property and contract. § 819. As applied to corporations and stockhclders. § 820. Other instances of acquiescence. § 821. Owner estopped from asserting his legal title to land. CHAPTER THIRD. CERTAIN FACTS AND EVENTS WHICH ARE THE OCCASIONS OF EQUITABLE PRIMARY OR REMEDIAL RIGHTS. § 822. Introductory paragraph. SECTION I. ACCIDENT. § 823. Definition. § 824. Eationale of the jurisdiction. § 825. General limitations on the jurisdiction. §§ 826-829. Instances in which the jurisdiction does not' exist. § 826. Non-performance of contracts. § 827. Supplying lost or destroyed records. XXXVlll §828. §829. §§ 830-837. §831. §832. §833. §834. §835. §836. §837. TABLE OF CONTENTS. Other special instances. Parties against whom the jurisriiction is not exercised* Particular instances of the jurisdiction. 1. Suits on lost instrument's. Same; instruments not under seal. 2. Accidental forfeitures. 3. Defective execution of powers. Powers held in trust will be enforced, 4. Belief against judgments at law. 5. Other special instances. SECTION n. MISTAKE. § 838. Origin and purpose of this jurisdiction, § 839. I. Definition. §§ 840-856. II. Various kinds of mistakes which furnish an oeeasiO'n for relief. §§ 841-851. First. Mistakes of law. § 842. The general rule and its limitations. § 843. Mistake as to the legal import or effect of a transaction. §§ 844-851. Particular instances in which relief will or will not be granted. § 845. Eeformation of an instrument on account of a mistake of law. §846. Mistake common to all the parties: mistake of a plain rule. § 847. Mistake of law accompanied with inequitable conduct of the other party. § 848. Same : between parties in relations of trust. § 849. Belief where a party is mistaken as to his own existing legal rights, interests, or relations. § 850. Compromises and voluntary settlements made upon a mistake as to legal rights. § 851. Payments of money under a mistake of law, §§ 852-856. Second, Mistakes of fact. § 853. How mistakes of fact may occar. § 854. In what mistakes of fact may consist. § 855. Compromises and speculative contracts. §856. Eequisites to relief; mistake must be material and free from culpable negligence. §§857-867. III. How mistake may be shown: when by parol evidence. § 858. Parol evidence in general in cases of mistake, fraud, or surprise. § 859. In suits for a reformation or cancellation: character and effect of the evidence. § 860. Parol evidence in defense in suits for a specific performance. § 861. Parol evidence of mistake on the plaintiff's part in suits for a specific performance: English rule. §862. Same: American rule : evidence admissible. § 863. Evidence of a parol variation which has been part performed. TABLE or CONTENTS. XXXIX §§ 864-867. Effect of the statute of frauds upon the use of parol evidence in equitable suits. § 865. Two classes of cases in which the use of parol evidence may be affected by the statute. § 866. General doctrine: parol evidence of mistake or fraud admissible in both these classes of cases. § 867. Glass v. Hulbert : examination of proposed limitations upon this general doctrine. §§ 868-871. rv. Instances of equitable jurisdiction occasioned by mistake. § 868. When exercised by way of defense. § 8'69. By way of affirmative relief : recovery of money paid by mistake. §870. Affirmative relief: reformation and cancellation. § 871. Ck)uditions of fact which are occasions for affirmative relief. SECTION in. ACTUAL FRAUD. § 872. Objects and purposes. §873. Description; essential elements. § 874. Four forms and classes of fraud in equity. § 875. Nature of actual fraud. §§ 876-899. First. Misrepresentations. § 877. I. The form ; an affirmation of fact. § 878. Misrepresentation of matter of opinion. § 879. II, The purpose for which the representation is made. § 880. Presumption of the purpose to induce action. § 881. False prospectuses, reports, and circulars. § 882. III. Untruth of the statement. §§ 883-889. IV. The intention, knowledge, or belief of the party making the statement. § 884. The knowledge and intention requisite at law. § 885. The knowledge or intention requisite in equity. §§ 886-888. Six forms of fraudulent misrepresentations in equity. § 889. Eequisites of a misrepresentation as a defense to the specifle enforcement of contracts in equity. J§ 890-897. V. Effect of the representation on the party to whom it is made. § 890. He must rely on it. § 891. He must be justified in relying on it. § 892. When he is or is not justified in relying on it. § 893. Information or means of obtaining information possessed by the parties receiving the representation. §894. Knowledge possessed by him; patent defects. § 895. When the knowledge or information must be proved and not presumed. § 896. Words of general caution. S 897. Prompt disaffirmance necessary. Xl TABLE OF CONTENTS. § 898. VI. Materiality of the misrepresentation. Effects of a misrepresentation. Second. Fraudulent concealments. General doctrine; duty to disclose. When duty to disclose exists. Concealments by a vendee. Concealments by a vendor. Non-disclosure of facts a defense to the specijBc enforcement of contracts in equity. Concealments by buyers on credit. Contracts and transactions essentially fiduciary; suretyship. Liability of principals for the fraud of their agents. Third. Jurisdiction of equity in cases of fraud. Fundamental principles of the jurisdiction. The English doctrine. Exception : fraudulent wills. The American doctrine. Incidents of the jurisdiction and relief. The same; plaintiff particeps doli; ratification. The same; promptness; delay through ignorance of the fraud. Persons against whom relief is granted; tona fide purchasers. Particular instances of the jurisdiction; judgments; awards; fraudulent devises and bequests; preventing acts for the bene- fit of others; suppressing instruments. The same; appointment under powers; marital rights; trusts. The statute of frauds not an instrument for the accomplishment of fraud. SECTION IV. CONSTRUCTIVE FRAUD. § 922. Definition : essential elements. § 923. Three principal classes. §§ 924-942, First. Constructive fraud apparent from the intrinsic nature and subject of the transaction itself. § 925. I. Inadequacy of consideration. § 926. Inadequacy pure and simple. § 927. Gross inadequacy amounting to fraud. § 928. Inadequacy coupled with other inequitable incidents. §§ 929-936. II. Illegal contracts and transactions. § 930. 1. Contracts illegal because contrary to statute: usury, gaming, smuggling. §§ 931-935. 2. Transactions illegal because opposed to public policy. § 931. A. Contracts interfering with the freedom of marriage ; marriage brokerage; in restraint of marriage; rewards for marriage; secret contracts in fraud of marriage; secret contracts to marry ; rewards for procuring wills. § 932. Agreements for a separation. §899. 900-907. §901. §902. §903. §904. §905. §906. §907. 908, 909. 910-921. §911. §912. §913. §914. § 915. §916. §917. §918. §919. §920. §921. TABLE OF CONTENTS. xli § 933. B. Conditions and limitations in restraint of marriage. § 934. C. Contracts directly belonging to and affecting business rela- tions; restraint of trade; interfering with bidding at auctions and governmental lettings; puflfers; fraudulent trade-marks; violating policy of statutes prescribing business methods; trading with alien enemies. § 935. D. Contracts affecting public relations; interfering with the election or appointment of officers; interfering with legislative proceedings; ditto, executive proceedings; ditto, judicial pro- ceedings. §936. 3. Contracts illegal because opposed to good morals; for illicit intercourse; champerty and maintenance; compounding with a felony or preventing a prosecution. § 937-942. III. Equitable jurisdiction in case of illegal contracts. § 937. In usurious contracts; usurious mortgages. § 938. In gaming contracts. §939. In other illegal contracts; explanation of maxim, In pari, etc. § 940. In pari delicto, general rules. § 941. In pari delicto, limitations on general rules. § 942. Not in pari delicto. i 943-965. Second. Constructive fraud inferred from the condition and rela- tions of the immediate parties to the transaction. § 943. General description and divisions. I 944-954. 1. Transactions void or voidable with persons wholly or partially incapacitated. § 945, Coverture ; infancy. § 946. Insanity. § 947. Mental weakness. § 948. Persons in vinculis; ditto, illiterate or ignorant. § 949. Intoxication. § 950. Duress. § 951. Undue influence. § 952. Sailors. § 953. Expectants, heirs, reversioners. § 954. Post ohit contracts. 955-965. II. Transactions presumptively invalid between persons in fidu- ciary relations. § 955. Circumstances to which the principle applies. § 956. The general principle. § 957. Two classes of cases in which it operates. § 958. Trustee and beneficiary. § 959. Principal and agent. § 960. Attorney and client. § 961. Guardian and ward. § 962. Parent and child. §963. Other relations: executors and administrators; physician and patient; spiritual advisers; husband and wife; partners, etc. Xlii TABLE OF CO:s' TENTS. §964, Confirmation or ratification. § 965. Acquiescence and lapse of time. 5§ 966-974. Third. Frauds against third persons who are not parties to the transaction. § 967. Secret bargains accompanying compositions with creditors, § 968. Conveyances in fraud of creditors. § 969. The consideration. § 970. The fraudulent intent. § 971. Modes of ascertaining the intent. § 972. Existing creditors. § 973. Subsequent creditors. S 974. Conveyances in fraud of subsequent purchasers. TABLE Oi' CONTENTS. xHi) CONTENTS OF VOLUME IH. PART THIRD. THE EQUITABLE ESTATES, INTERESTS, AND PRIMARY RIGHTS RECOGNIZED AND PROTECTED BY THE EQUITY JURISPRUDENCE. § 975. Preliminary paragraph. CHAPTER FIRST. TRUSTS. SECTION I. ORIGIN OF USES AND TRUSTS. § 976. The testament in the Roman law. § 977. Fidei commissa in the Boman law. § 978. Origin of uses. § 979. The use at law. § 980. The use in equity. §981. Resulting uses; equitable theory of. consideration. § 982. Double nature of property in land, the use and the seisin. § 983. The "statute of uses." § 984. Kinds of uses not embraced within the statute. § 985. A use upon a use not executed by the statute. S 986. Trusts after the statute; eflfect of the statute in the American states. SECTION II. EXPRESS PRIVATE TRUSTS. § 987. Classes of trusts. 5§ 988-990. Express passive trusts. § 989. Estates of the two parties ; liability for beneficiary's debts, etc. § 990. Rules of descent, succession, and alienation. §§ 991-995. Express active trusts. § 992. Classes of active trusts. § 993. Voluntary assignments for the benefit of creditors; English doctrine. § 994. The same; American doctrine. § 995. Deeds of trust to secure debts. 6§ 996-999. Voluntary trusts. § 997. The general doctrine ; incomplete voluntary trusts not enforced. xIjv table of contents. § 908. When the donor is the legal owner. § 999. When the donor is the equitable owner. §§1000,1001. Executed and executory trusts. § 1001. Definition and description. § 1002. Powers in trust. §§ 1003-1005. Legislation of various states. § 1004. Judicial interpretation; validity of trusts. § 1005. Interest, rights, and liabilities of the beneficiary. SECTION III. HOW EXPRESS TRUSTS ARE CREATED. § 1006. Trusts of real property; statute of frauds; writing necessary. § 1007. Written declaration by the grantor; ditto, by the trustee; examples. § 1008. Trusts of personal property may be created verbally; what trusts are not within the statute. Words and dispositions sufficient to create a trust ; examples. Express trusts inferred by construction, sometimes improperly called "implied trusts." 1. From the powers given to the trustee. 2. Provisions for maintenance; examples. 3. To carry out purposes of the will. 4. From "precatory" words; Knight v. Knight; examples. Modern tendency to restrict this doctrine; in the United States. What intention necessary to create the trust; the general criterion ; examples. § 1017. Objections to the doctrine. SECTION IV. PUBLIC OR CHARITABLE TRUSTS. § 1018. General description. § 1019. A public, not a private, benefaction requisite. § 1020. What are charitable uses and purposes: "Statute of charitable uses." 1021-1024. Classes of charitable uses. § 1021. 1. Religious purposes. § 1022. 2. Benevolent purposes. § 1023. 3. Educational purposes. § 1024. 4. Other public purposes. §1025. Creation of the trust: certainty or uncertainty of the object and of the bene"ficiaries. § 1026. Certainty or uncertainty of the trustees. § 1027. The doctrine of cy-pres. § 1028. Origin and extent of the equitable jurisdiction. § 1029. Charitable trusts in the United States. § 1009. 0-1017. §1011. § 1012. § 1013. § 1014. § 1015. § 1016. TABLE OF CONTENTS. xlv SECTION V. TRUSTS ARISING BY OPERATION OF LAW— RESULTING AND CONSTRUCTIVE TRUSTS. § 10'30. General nature and kinds. §§ 1031-1043. First. Kesulting trusts. §§1032-1036. First form: trusts resulting to donor. § 1032. 1. Property conveyed on some trust which fails. § 1033. Same; essential elements. § 1034. 2. A trust declared in part only of the estate conveyed. § 1035. 3. In conveyances without consideration. § 1036. Parol evidence, §§ 1037-1043. Second form: conveyance to A, price paid by B. § 1038. Special rules. § 1039. Purchase in name of wife or child. § 1040. Admissibility of parol evidence. § 1041. The same; between family relatives. § 1042. Legislation of several states. § 1043. Interest and rights of the beneficiary. §§ 1044-1058. Second. Constructive trusts. § 1045. Kinds and classes. § 1046. 1. Arising from contracts express or implied. § 1047. 2. Money received equitably belonging to another. § 1048. 3. Acquisition of trust property by a volunteer, or purchaser with notice. § 1049. 4. Fiduciary persons purchasing property with trust funds. § 1050. 5. Renewal of a lease by partners and other fiduciary persons. § 1051. 6. Wrongful appropriation or conversion into a different form of another's property. § 1052. 7. Wrongful acquisition of the trust property by a trustee or other fiduciary person. § 1053. 8. Trusts ex maleficio. § 1054. (1) A devise or bequest procured by fraud. § 1055. (2) Purchase upon a fraudulent verbal promise. § 1056. (3) No trust from a mere verbal promise. § 1057. 9. Trust in favor of creditors. § 1058. Eights and remedies of the beneficiaries, SECTION VI. POWERS, DUTIES, AND LIABILITIES OF EXPRESS TRUSTEES. § 1059. Divisions. § 1060. First. Powers and modes of acting. §§ 1061-1083. Second. Duties and liabilities. §§ 1062-1065. I. To carry the trust into execution. § 1062. 1. The duty to conform strictly to the directions of the trust. § 1063. § 1064. § 1065. §§ 106&-1074. § 1067. § 1068. § 1069. § 1070. § 1071. 1 1072. § 1073. § 1074. fiS 1075-1078. § 1075. § 1076. § 1077. Xlvi TABLE OF CONTENTS. 2. The duty to account. 3. The duty to obey directions of the court. 4. The duty to restore the trust property at the end of th« trust. II. To use care and diligence. 1. The duty of protecting the trust property. 2. The duty not to delegate his authority. 3. The duty not to surrender entire control to a eo-trustee. 4. The amount of care and diligence required. 5. The duty as to investments. The necessity of making investments. Kinds of investments: When particular securities are expresslj authorized. The same: When no directions are given. III. To act with good faith. 1. The duty not to deal with the trust property for his own advantage. 2. The duty not to mingle trust funds with his own. 3. The duty not to accept any position, or enter into any re- lation, or do any act inconsistent with the interests of th«e beneficiary. § 1078. 4. The duty not to sell trust property to himself, nor to buy from himself. §S 1079-1083. rv. Breach of trust, and liability therefor. § 1080. Nature and extent of the liability. § 1081. Liability among co-trustees. § 1082. Liability for co-trustees. § 1083. The beneficiary acquiescing, or a party to the breach of trust. 5 1084. Third. The trustee's compensation and allowances. § 1085. Allowances for expenses and outlays; lien therefor. § 1086. Fourth. Removal and appointment of trustees. S 1087. Appointment of new trustees. SECTION VII. CORPORATION DIRECTORS AND OTHER QUASI TRUSTEES. § 1088. Quasi trustee; fiduciary persons. § 1089. Corporation directors and officers. § 109O. Trust relations in stock corporations. § 1091. Liability of directors for a violation of their trust. § 1092. First class: Directors guilty of fraudulent misrepresentations, etc. § 1093. Second class: Ultra vires proceedings of directors. § 1094. Third class : Wrongful dealing vdth corporate property. § 1095. Fourth class: The same; the corporation refuses to sue. § 1096. Special classes. § 1097. Guardians. TABLE OF CONTENTS. xlvii CHAPTER SECOND. ESTATES AND INTERESTS OF MARRIED WOMEN. SECTION I. THE SEPARATE ESTATE OF MARRIED WOMEN. § 1098. Origin and general nature. § 1099. Statutory legal separate estate in the United States. § 1100. How the separate estate is created; trustees not necessary. § 1101. The same: By what modes and instruments. § 1102. The same: What words are sufficient. § 1103. What property is included. § 1104. Her power of disposition. § 1105. The same in the United States. § 1106. Her disposition under a power of appointment, § 1107. Eestraints upon anticipation. § 1108. What words are' sufficient to create a restraint. § 1109. Effect of the restraint. § 1110. End of the separate estate; its devolution on the wife's ^eatk. § 1111. Pin-money. § 1112. Wife's paraphernalia. § 1113. Settlement or conveyance by the wife in fraud of the marriage. SECTION n. THE WIFE'S EQUITY TO A SETTLEMENT. § 1114. General nature. §1115. Extent of the wife's equity: to what property and agaiBst what person. § 1116. When the equity does not arise. § 1117. Amount of the settlement. § 1118. Form of the settlement. § 1119. Maintenance of wife. § 1120. Alimony. SECTION III. THE CONTRACTS OF MARRIED WOMEN. § 1121. The general doctrine. § 1122. Eationale of the doctrine. § 1123. Extent of the liability. § 1124. For what contracts her separate estate is liable. § 1125. The same; the American doctrine. § 1126. To what contracts the American doctrine applies. XlVlJi TABLE OF CONTENTS. CHAPTER THIRD. ESTATES AND INTERESTS ARISING FROM SUCCESSION TO A DECEDENT. SECTION I. LEGACIES. § 1127. Jurisdiction of equity. § 1128. The same: where originally exclusive. § 1129. The same: in the United States. §§ 1130-1134. Kincis of legacies. § 1130. Specific legacies. § 1131. Ademption of specific legacies. § 1132. General legacies. § 1133. Demonstrative legacies. § 1134. Annuities. §§ 1135-1143. Abatement of legacies. § 1135. Abatement in general: order of appropriating assets. § 1136. Nature of abatement. § 1137. Abatement of specific legacies. § 1138. Abatement of demonstrative legacies. § 1139. Abatement of general legacies. § 1140. Limitations; intention of testator. §1141. Exceptions; legacies to near relatives. § 1142. The same; legacy for a valuable consideration. § 1143. Appropriation of a fund. § 1144. Lapsed legacies. § 1145. The same; statutory changes. SECTION n. DONATIONS CAUSA MORTIS. § 1146. General nature. § 1147. Is not testamentary. § 1148. The subject-matter of a valid gift. § 1149. Delivery. § 1150. Eevocation. § 1151. Equitable jurisdiction. SECTION III. ADMINISTRATION OF ESTATES. § 1152. Equitable jurisdiction in the United StatM. § 1153. The same; fundamental principle; Eosenburg v. Frank. § 1154. The jurisdiction as administered in the several states; general resume — the states alphabetically arranged in foot-note. TABLE OF CONTEXTS. xlix SECTION IV. CONSTRUCTION AND ENFORCEMENT OF WILLS. § 1155. Origin of the jurisdiction. § 1156. Extent of the jurisdiction; a branch of that over trusts. § 1157. The same; a broader jurisdiction in some states. § 1158. Suit to establish a wiU. CHAPTER FOURTH. EQUITABLE ESTATES ARISING FROM CONVERSION. SECTION I. THE CONVERSION OF REAL ESTATE INTO PERSONAL, AND OF PERSONAL ESTATE INTO REAL. § 1159. Definition and general nature. § 1160. I. What words are suflScient to work a conversion. § 1161. The same; under a contract of sale, § 1162. II. Time from which the conversion takes effect. § 1163. The same; in contracts of sale with option. § 1164. III. Effects of a conversion; land directed or agreed to be sold. § 1165. The same; money directed or agreed to be laid out in land. § 1166. Limitations on these effects. §1167. Conversion by paramount authority; compulsory sale of land under statute; sale by order of court. § 1168. Conversion as between life tenant and remainder-man. SECTION II. RESULTING TRUST UPON A FAILURE OF THE PURPOSES OF THE CONVERSION. § 116&. The questions stated; object and extent of the doctrine. § 1170. A total failure of the purpose. § 1171, Partial failure; wills directing conversion of land into money. § 1172. The same; wills directing the conversion of money into land. § 1173. The same; deeds directing the conversion of land into money. § 1174. The same; deeds directing the conversion of money into land. SECTION III. RECONVERSION. §1175. Definition: Rationale of the doctrine. § 1176. Who may elect to have a reconversion. § 1177. Mode of election. § 1178. Double conversion. TABLE OF CONTENTS. CHAPTER FIFTH. MORTGAGES OF LAND. SECTION I. THE ORIGINAL OR ENGLISH DOCTRINE. § 1179. The common-law doctrine: Statute of 7 Geo. II., c. 20. § 1180. Origin and development of the equity jurisdiction; the "equity of redemption." § 1181. The equitable theory. § 1182. The double system at law and in equity. § 1183. The legal and the equitable remedies. § 1184, Peculiarities of the English system. S 1185. Subsequent mortgages equitable, not legaL SECTION II. THE AMERICAN DOCTRINE. §1186. In general: Two methods prevailing. §1187. First method: Both the legal and the equitable theories; states arranged alphabetically in foot-note. 8 1188. Second method: The equitable theory alone; states arranged in foot-note. § 1189. The same : The mortgagee in possession. § 1190. The same: Equitable remedies of the parties. S 1191. Definition of mortgage. SECTION HL VARIOUS FORMS AND KINDS OF MORTGAGE. S 1192. In equity a mortgage is a security for a debt. § 1193. Once a mortgage always a mortgage. § 1194. Mortgage and conveyance with an agreement of repurchase, distinguished. § 1195. The general criterion: the continued existence of a debt. § 1196. A conveyance absolute on its face may be a mortgage. 1197-1199. Mortgage to secure future advances. § 1197. As between the immediate parties. § 1198. As against subsequent incumbrancers and purchasers. § 1199. As affected by the recording act. 1200-1203. Mortgages to secure several different notes. § 1200. As between the original parties. § 1201. Assignees of the notes; order of priority among them, § 1202. Effect of an assignment of the notes. § 1203. Priority between an assignee and the mortgagee. TABLE OF CONTENTS. li SECTION IV. INTERESTS, RIGHTS, AND LIABILITIES OF THE MORTGAGOR AND OF THE MORTGAGEE. § 1204. General interests of the mortgagor and the mortgagee. §§ 1205-1208. I. Conveyance by the mortgagor. § 1205. Conveyance "subject to" the mortgage; effect of, § 1206. Grantee "assumes" the mortgage; effect of. § 1207. Eationale of the grantee's liability. § 1208. Assumption by a mortgagee. §§ 1209-1214. II. Assignment of the mortgage. . § 1209. Assignment at law and in equity. § 1210. Assignment of the debt is, in equity, an assignment of the mortgage; what operates as such assignment. § 1211. Equitable assignment by subrogation. § 1212. In whose favor such equitable assignment exists. § 1213. In whose favor such equitable assignment does not exist. § 1214. Eight to compel an actual assignment. §§ 1215-1218. III. Eights and liabilities of mortgagee in possession. § 1215. To whom the doctrine applies in different states. § 1216. With what he is chargeable; rents and profits, willful default. § 1217. His allowances and credits, disbursements, repairs, improve- ments, compensation. § 1218. Liability to account. §§ 121^-1226. rv. Eedemption from the mortgage. § 1219. By the mortgagor; suit to redeem. § 1220. By other persons. §§ 1221-1226. Eights of contribution and of exoneration upon redemption. § 1221. General doctrine; classes of eases; equities equal or unequal. § 1222. (1) Where their equities are equal; titles simultaneous. § 1223. (2) Where their equities are unequal, although the titles are simultaneous; tenants for life or for years and remainder- men; dowress and reversioner. § 1224. (3) Inequality of equities where titles are not simultaneous; between mortgagor and his grantee of a parcel; between successive grantees; inverse order of alienation. § 1225. The same ; what circumstances disturb these equities, and de- feat this rule. § 1226. (4) A release by the mortgagee of one or more parcels. § 1227. V. Foreclomre; foreclosure proper or "strict foreclosure.** § 1228. Foreclosure by judicial sale. lii TABLE OF CONTENTS. CHAPTER SIXTH. MORTGAGES OF PERSONAL PROPERTY AND PLEDGES. ' § 1229. General nature of, at law. § 1230. Jurisdiction and remedies in equity. § 1231. Pledges: Equitable jurisdiction and remedies. § 1232. Chattel mortgages in California. CHAPTER SEVENTH. EQUITABLE LIENS. SECTION I. THEIR GENERAL NATURE. § 1233. What are included in this term; what is an equitable lien. § 1234. Origin and rationale of the doctrine. SECTION II.- ARISING FROM EXPRESS CONTRACT. § 1235. The general doctrine; requisites of the contract. § 1236. On property to be acquired in future. § 1237. The form and nature of the agreement; illustrations of par- ticular agreements; agreements to give a mortgage; defec- tive mortgages; assignments; bills of exchange, etc. SECTION HI. ARISING FROM IMPLIED CONTRACTS. I 1238. Nature of "implied contract" in equity. § 1239. General doctrine as to liens arising ex CBquo et hono. § 1240. Expenditure by one joint owner. § 1241. Expenditure for the' benefit of the true owner. § 1242. Expenditure by a life-tenant. § 1243. In other special cases. SECTION IV. ARISING FROM CHARGES BY WILL OR BY DEED. § 1244. General doctrine; nature of a charge. § 1245. What amounts to a charge creating such a lien. § 1246. The same; express charge. § 1247, The same; implied charge; English and American rules stated in foot-note. § 1248. Observations upon the rules adopted by American courts. TABLE OF CONTENTS. liii SECTION V. THE GRANTOR'S LIEN, ON CONVEYANCE. §§ 1249-1254. The ordinary grantor's lien for unpaid purchase price. §1249. General doctrine; in what states adopted or rejected; states classified in foot-notes. § 3250. Origin and rationale; Ahrend v. Odiorne discussed. §1251. Requisites, extent, and effects of this lien; great uncertainty and conflict in the results of judicial opinion. § 1252. How discharged or waived; effect of taking other security, etc. § 1253. Against whom the lien avails. § 1254. In favor of whom the lien avails; whether or not assignaBle. §§ 1255-1259. Grantor's lien by reservation. § 1255. General description. § 1256. "What createsi a lien by reservation. § 1257. Essential nature of the lien. § 1258. Its operation and effect. § 1259. The grantor's dealing with this lien; waiver; assignment. SECTION VI. THE VENDOR'S LIEN AND THE VENDEE'S LIEN, ON CONTRACT FOR SALE AND PURCHASE. §§ 1260-1262. Vendor's lien under contract of sale. § 1260. General doctrine; vendor's lien and grantor's lien distin- guished. § 1261. Essential nature and effects; vendor's interest determined by doctrine of equitable conversion. § 1262. How enforced. § 1263. Vendee's lien for purchase money paid. SECTION VII. ARISING FROM A DEPOSIT OF TITLE DEEDS. § 1264. The English doctrine. § 1265. The doctrine in the United States. § 1266. Distinction suggested, as a conclusion from American cases. § 1267. How this lien is enforced. SECTION VIII. VARIOUS STATUTORY LIENS. § 126S. General nature and tendency of American legislation on this subject ; various examples. § 1269. How such liens are enforced. liv TABLE 0¥ CONTENTS. CHAPTER EIGHTH. ESTATES AND INTERESTS ARISING FROM ASSIGNMENTS. SECTION I. ASSIGmiENT OF THINGS IN ACTION. § 1270. Original doctrines at law and in equity. § 1271. Rationale of the equitable doctrine. § 1272. Assignment of things in action at common law. § 1273. The same; under statutory legislation. § 1274. Interpretation of this legislation as contained in the Eeformed Procedure. § 1275. What things in action are or are not thus legally assignable. § 1276. Assignments forbidden by public policy. § 1277. The equitable jurisdiction; under the Reformed Procedure. §1278. The equitable jurisdiction; under the common-law procedure. § 1279. Incidents of an assignment. SECTION n. EQUITABLE ASSIGNMENT OF A FUND BY ORDER OR OTHER- WISE. §1280, The general doctrine; its requisites, scope, operation, and effects. § 1281. Notice to the creditor-assignee, essential. § 1282. A mere mandate to a depositary or agent, is not an equitable assignment, but is revocable; an appropriation is necessary. § 1283. Funds not yet in existence. § 1284. Operation of bills of exchange and checks. SECTION IIL ASSIGNMENT OF POSSIBILITIES, EXPECTANCIES, AND PROP- ERTY TO BE ACQUIRED IN FUTURE. § 1285. Equitable jurisdiction under modern legislation. § 1286. Essential elements and grades of contingencies, expectancies, and possibilities. § 1287. Assignment of possibilities. § 1288. Assignment of personal property to be acquired in the future; rationale of the doctrine: Holroyd v. Marshall. § 1289. Assignment of future cargo or freight. § 1290. Eequisites of an assignment of property to be acquired m the future. § 1291. Extent of the doctrine, to what property and persons it appGea. TABLE OF CONTENTS. Iv CHAPTER NINTH. CONTRACTS IN EQUITY. SECTION I. GENERAL DOCTRINE CONCERNING CONTRACTS. § 1292. Object of this chapter, § 1293. What constitutes a contract. § 1294. Equitable contract by representations and acta. § 1295. ETflEects of a contract in equity; covenajit creating an equitable servitude. §1296. Effects of contracts in general. S 1297. Enforcement of contracts in equity. SECTION H. EQUITABLE DEBTS. § 1298. General nature. § 1299. Husband's liability for wife's necessaries. § 1300. Liability for money advanced to pay debts of a person in- capable of contracting. § 1301. On death of one joint debtor. S 1302. On death of a joint surety. CHAPTER TENTH. PERSONS NOT SUI JURIS. SECTION I. INFANTS. S 1303. Questions stated. § 1304. Origin of the equitable jurisdiction over infanta. § 1305. How jurisdiction is acquired; infant made a "ward of court." §§ 1306-1307. Extent of the jurisdiction. § 1306. Appointment of guardians. § 1307. Custody of infants; custody of parents when controlled. §§ 1308-1310. How the jurisdiction is exercised. § 1308. Supervision of the guardian. § 1309. Management of property. § 1310. Marriage of infant ward. Ivi TABLE OF CONTENTS. SECTION II. PERSONS OF UNSOUND MIND, § 1311, Orifrin of this jurisdiction. § 1312. Mode of exercising the jurisdiction in England. § 1313. Jurisdiction in the United States. 8 1314. Jurisdiction in cases of weak or unsound mind. TABLE OF CO^■TENTS. IvU CONTENTS OF VOLUME IV. PART FOURTH. THE REMEDIES AND REMEDIAL RIGHTS WHICH ARE CONFERRED BY THE EQUITY JURISPRUDENCE. PRELIMINARY SECTION. § 1315. General object. § 1316. Classification. § 1317. Remedies acting in rem or in personam. § 1318. Eemedies in personam beyond tlie territorial jurisdiction. FIRST GROUP. REMEDIES PURELY ANCILLARY AND PROVISIONAL. CHAPTER FIRST. INTERPLEADER. § 1319. Description of this group. § 1320. General nature and objects of interpleader. § 1321. The claims legal or equitable. § 1322. Essential elements. § 1323. First. The same thing, debt, or duty. § 1324. Second. Privity between the opposing claimants. § 1325. TMrd. Plaintiff a mere stakeholder. § 1326. Fourth. No independent liability to one claimajit. § 1327. By bailees, agents, tenants, and parties to contracts. § 1328. Pleadings and other procedure. § 1329. Interpleader in legal actions by statute. CHAPTER SECOND. RECEIVERS. § 1330. Definition, general nature, and objects. § 1331. The appointment discretionary. §§ 1332-1335. Oases in which a receiver may be appointed. § 1332. First class. § 1333. Second class. § 1334. Third class. § 1335. Fourth class. § 1336. Their powers, rights, duties, and liabilities. Iviii TABLE OF CONTENTS. SECOND GROUP. REMEDIES PURELY PREVENTIVE. CHAPTER FIRST. INJUNCTIONS. SECTION I. TO PROTECT OR RESTRAIN THE VIOLATION OF OBLIGATIONS AND RIGHTS OF PROPERTY OR OF CONTRACT, EITHER LEGAL OR EQUITABLE. § 1337. General nature and objects: Interdicts. § 1338. Fundamental principle. § 1339. To protect purely equitable estates or interests, and in aid of purely equitable remedies. § 1340. The same : Particular instances. §§ 1341-1344. To prevent the violation of contracts. § 1341. General doctrine. § 1342. (1) Restrictive covenants creating equitable easements. § 1343. (2) Contracts for personal services or acts. § 1344. (3) Other agreements, generally negative in their nature. § 1345. Miscellaneous cases: Corporations and their officers; between mortgagor and mortgagee; public officers; cloud on title; married women's property; partners, etc. SECTION n. TO PREVENT OR RESTRAIN THE COMMISSION OF TORTS. § 134&. The estates and interests generally legal. § 1347. Kinds and classes of torts restrained. § 1348. Waste. § 1349. Nuisance: Public. § 1350. Nuisance: Private; when restrained. §1351. Same: Instances; violations of easements. § 1352. Patent rights and copyrights. § 1353. Literary property as distinct from copyright. § 1354. Trade-marks. § 1355. Good-will. § 1356. Trespasses. § 1357. General doctrine; cases in wMcli trespass may te engoined. § 1358. Slander of title; libels; wrongful use of name. SECTION ni. MANDATORY INJUNCTIONS. 1 1359. Nature and object; when granted. TABLE OF CONTENTS. lix SECTION IV. TO RESTRAIN ACTIONS OR JUDGMENTS AT LAW. § 1360. Origin of the jurisdiction, §1361. When the jurisdiction is not exercised; General doctrine. § 1362. When the jurisdiction may be exercised: First class; exclu- sive equitable interests or rights involved. § 1363. The same : Second class ; legal remedies inadequate. § 1364. The same: Third class; fraud, mistake, or accident in the trial at law. § 1365. Jurisdiction to grant nev? trials at law in the United States. CHAPTER SECOND. EQUITABLE DEFENSES INTERPOSED IN LEGAL ACTIONS, AS A SUBSTITUTE FOR INJUNCTIONS. § 1366. General object. § 1367. Equitable pleas under the common-law procedure. § 1368. Equitable defenses under the reformed procedure. § 1369. Meaning and nature of an equitable defense. § 1370. General effect: Injunction against actions at law unnecessary. § 1371. Cases in which an injunction may still be necessary: First class; to avoid multiplicity of suits. § 1372. The same: Second class; new parties needed. §1373. The same: Third class; no affirmative relief. § 1374. Some illustrations of equitable defenses. THIRD GROUP. REMEDIES WHICH INDIRECTLY ESTABLISH OR PROTECT INTERESTS AND PRIMARY RIGHTS, EITHER LEGAL OR EQUITABLE. CHAPTER FIRST. REFORMATION AND CANCELLATION. § 1375. General nature and object. 5 1376. Reformation and re-cxecution of instruments. S 1377. Cancellation, surrender up, or discharge of instrument!. IX TABLE OF CONTENTS. FOURTH GROUP. REMEDIES BY WHICH ESTATES, INTERESTS, AND PRI- MARY RIGHTS, EITHER LEGAL OR EQUITABLE, ARE DIRECTLY DECLARED, ESTABLISHED, OR RECOV- ERED, OR THE ENJOYMENT THEREOF FULLY RE- STORED. CHAPTER FIRST. SUITS BY WHICH PURELY LEGAL ESTATES ARE ESTAB- LISHED, AND THE ENJOYMENT THEREOF RECOVERED: NAMELY, ASSIGNMENT OF DOWER: ESTABLISHMENT OF DISPUTED BOUNDARIES; PARTITION OF LAND, AND OF PERSONAL PROPERTY. § 1378. General nature and object of this group. § 1379. Nature and object of the first class. §§ 1380-1383. Assignment of dower. § 1380. Legal remedies. § 1381. Origin and grounds of the equitable jurisdiction. § 1382. The jurisdiction now concurrent. § 1383. Exclusive jurisdiction over dower in equitable estates. § 1384. Establishment of disputed boundaries. § 1385. The same; equitable incidents and grounds, §§ 1386-1390. Partition of lands. § 1386. Common-law remedy. § 1387. Equitable jurisdiction and remedies. § 1388. The title of the plaintiff. § 1389. Mode of partition. § 1390. Partition by means of a sale. § 1391. Partition of personal property. § 1392. The same: issue of title. CHAPTER SECOND. SUITS BY WHICH SOME GENERAL RIGHT, EITHER LEGAL OR EQUITABLE, IS ESTABLISHED. BILLS OF PEACE, AND BILLS QUIA TIMET; QUIETING TITLE. § 1393. Nature and object. § 1394. Bill? of peace; bills quia timet; quieting title. TABLE OF CONTENTS. 1x1 CHAPTER THIRD. SUITS BY WHICH SOME PARTICULAR ESTATE, INTEREST, OR RIGHT, EITHER LEGAL OR EQUITABLE, IS ESTABLISHED. STATUTORY SUIT TO QUIET TITLE; SUIT TO REMOVE A CLOUD FROM TITLE. § 1395. Nature and object. § 1396. Statutory suit to quiet title; legislation. § 1397. The same; essential features and requisites; possession; title. § 1398. Suit to remove a cloud from title; to prevent a cloud. § 1399. The same; when the jurisdiction is exercised; general doctrine. FIFTH GROUP. REMEDIES BY WHICH EQUITABLE OBLIGATIONS ARE SPECIFICALLY AND DIRECTLY ENFORCED. CHAPTER FIRST. SPECIFIC PERFORMANCE OF CONTRACTS. § 1400. Nature and object. § 1401. Specific peTformanee of contracts; grounds of the jurisdiction. § 1402. Extent of the jurisdiction; inadequacy of damages; various kinds of contracts. §1403. The same: Impracticability of the legal remedy. § 1404. The jurisdiction discretionary. § 1405. Essential elements and incidents. § 1406. Rights under the contracts; effect of events without the agency of the parties. § 1407, Performance by plaintiff a condition precedent. § 1408. Time as affecting the right to a performance. § 1409. Enforcement of verbal contracts part performed. § 1410. Damages in place of a specific performance. CHAPTER SECOND. SPECIFIC ENFORCEMENT OF OBLIGATIONS ARISING FROM TRUSTS AND FIDUCIARY RELATIONS. § 1411. General nature, kinds, and classes. § 1412. Suits against corporations to compel the transfer or issue of stock. Ixii TABLE OF CONTENTS, SIXTH GROUP. REMEDIES IN WHICH THE FINAL RELIEF IS PECUNIARY, BUT IS OBTAINED BY THE ENFORCEMENT OF A LIEN OR CHARGE UPON SOME SPECIFIC PROPERTY OR FUND. CHAPTER FIRST. FORECLOSURE SUITS; MARSHALING SECURITIES; CRED- ITORS' SUITS. § 1413. Nature, kinds, and classes. § 1414. Suits for marshaling of securities. § 1415. Creditors' suits. .SEVENTH GROUP. REMEDIES IN WHICH THE FINAL RELIEF IS WHOLLY PECUNIARY, AND IS OBTAINED IN THE FORM OF A GENERAL PECUNIARY RECOVERY. CHAPTER EIRST. SUITS FOR CONTRIBUTION, EXONERATION, AND SUBROGA- TION. § 1416. General nature, kinds, and classes. § 1417. Exoneration; rights of suretj against the principaL § 1418. Contribution. § 1419. Subrogation. CHAPTER SECOND. SUITS FOR AN ACCOUNTING. § 1420. Origin of the equitable jurisdiction. S 1421. Extent of the equitable jurisdiction; when exercised. EQUITABLE REMEDIES. OUTLINE TABLE OF CONTENTS. Introduction. Interpleader. Appointment of Keceivers. The Eeeeiver's Possession; and Conflicting Appointmeutt. Action Against the Receiver. Suits by the Receiver. Receiver's Relation to Pending Suits; and When He ia a Necessary Party. Receivers; Management and Disposition of Property. Receivers; Claims and Allowances. Removal and Discharge of Receiver. Foreign Receivers; Ancillary Receivers. Injunctions; General Principles; Injunction to Protect Equitable Estates and Interests. Injunctions to Prevent the Violation of Contracts. Injunctions Against Corporations and Their Officers. Injunctions Relating to Voluntary Associations and Non- stock Corporations. Injunctions Between Mortgagor and Mortgagee. Injunctions Against Public Officers. Injunctions Against Municipal Corporations and Their Officers. Injunction Against Taxation; and Against Special or Local Assessments. Chapter I. Chapter IL Chapter IIL Chapter IV. Chapter V. Chapter VL Chapter VIL Chapter VHL Chapter IX. Chapter X. Chapter XL Chapter XIL Chapter XIII. Chapter XIV. Chapter XV. Chapter XVI. Chapter xvn. Chapter xvin. Chapter XIX. Chapter XX. Chapter XXI. Chapter XXII. Chapter XXIII. Cliapter XX rv. Chapter XXV. Chapter XXVI. CONTENTS OF VOLUME Y. Injunction Against Exercise of the Power of Eminent Domain. Injunctions to Prevent or Restrain the Commission of Torts in General; to Restrain Criminal Acts. Injunction Against Waste. Injunction Against Trespass. Injunction Against Nuisance. Injunctions to Protect Easements. Injunctions for the Protection of Water Rights. (Ixiii) Ixiv TABLE OF CONTENTS. Cliapter XXVII. Chapter XXVIII. Chapter XXIX. Chapter XXX. Chapter XXXI. Chapter XXXII. Chapter XXXIII. Chapter XXXIV. Chapter XXXV. Chapter XXXVI. Chapter XXXVII. Chapter XXXVIU. Chapter XXXIX. Chapter XL. Chapter XLI. Chapter xm. Chapter XLHL Chapter XLIV. Chapter XLV. Chapter XLVI. Chapter XLVII. Chapter XLVIIL Chapter XLIX. Injunctions to Protect Patents; Copyrights and Literary Property; Trade-marks and Trade Names; Exclusive Franchises. Injunction Against Interference With Freedom of Trade or Employment; Combinations, Strikes, Boycotts, etc. Injunctions; Miscellaneous Torts. Mandatory Injunctions. Equitable Relief Against Actions, Judgments, and Exe- cutions at Law. Reformation and Cancellation. Assignment of Dower; and Establishment of Disputed Boundaries. Partition. Bills of Peace. Suit to Prevent or Remove Cloud on Title — Statutory Suit to Quiet Title. Specific Performance of Contracts — Ground and Extent of the Jurisdiction. Elements and Incidents of the Contract Essential to Specific Performance. Specific Performance; Default and Delay by Plaintiff. Specific Performance of Parol Contracts, Part Performed. Partial Performance With Compensation — Damages in Place of a Specific Performance. Equitable Estates and Interests Under the Contract of Sale and Purchase of Land. Suits to Compel Transfer ui Issue of Stock. Marshaling of Securities. Creditors' Suits. Creditors' Bills Against Stockholders. Suits for Reimbursement, Contribution^ Exoneration, and Subrogation. Suits for an Accounting. Partnership Bills. TREATISE ON EQUITY JURISPRUDENCE. (Ixv) TREATISE EQUITY JURISPEUDENCE. IISTRODUCTORY CHAPTER. SECTION I. THE ORIGIN OF EQUITY JURISDICTION AND JURISPRU- DENCE. ANALYSIS, § 1. Object of this Introduction. §§ 2-9. Mquitas in the Roman Law. §§ 10-42. Origin of Equity in the English Law. §§ 10-13. Primitive condition of the law and the courts. §§ 14, 15. Early influences of the Roman Law. §§ 16-29. Causes which made a court of equity necessary. §§ 21-23. The earliest common-law actions and procedure. § 24. Statute of Edward I. concerning new writs. §§ 25-29. Limited results of this legislation. §§ 30-42. Commencement and progress of the chancery jurisdiction. § 31. Original powers of the King's Council. §32. Original common-law jurisdiction of the Chancellor. §§ 33-35. Jurisdiction of grace transferred to the Chancellor; Statute 24 Edward III. §§ 36-39. Development of the equitable jurisdiction. § 40. Abolition of the court in England and in many American states. §§ 41, 42. Equity jurisdiction in other American states. § 1. Object of This Introduction. — It is not my purpose to attempt a complete and detailed history of equity as it exists in England and in the United States. That work has already been done by Mr. Spence, in his Equitable Jurisdiction of the Court of Chancery. Some general ac- i-i (1) § 2 EQUITY JURISPEUDENCE. 2 count, however, of the origin of the equitable jurisdiction, of the sources from which the principles and doctrines of the equity jurisprudence took their rise, and of the causes which led to the establishment of the Court of Chancery, with its modes of procedure separate and distinct from the common-law tribunals, with their prescribed and rigid, forms of action, is absolutely essential to an accurate con- ception of the true nature and functions of equity as it exists at the present day. I shall therefore preface this introductory chapter with a short historical sketch, exhibit- ing the system in its beginnings, and describing the early movements of that progress through which its principles have been developed into a vast body of doctrines and rules which constitute a most important department of the municipal law. § 2. ^quitas in the Roman Law. — The growth and func- tions of equity as a part of the English law were anticipated by a similar development of the same notions in the Roman jurisprudence. In fact, the equity administered by the early English chancellors, and the jurisdiction of their court, were confessedly borrowed from the cequitas and judicial powers of the Eoman magistrates; and the one cannot be fully understood without some knowledge of the other. This intimate connection between the two systems is a sufficient reason or excuse for the following brief state- ment of the mode in which cequitas was introduced into the Eoman law, and of the important part which it performed, under the great jurists and magistrates of the empire, in shaping the doctrines of that wonderful jurisprudence. The researches of modern juridical scholars have exposed the falsity of much that has been written by English authors, such as Blackstone and Coke, with respect to the origin of their law, and have demonstrated the existence of the closest relations between the Roman jurisprudence and the early English common law. These relations with the growing common law were disturbed, and finally broken, 3 OEIGIN OF EQUITY JURISPRUDENCE. § 3 from political motives and considerations; but with the equity jurisprudence they became, for that very reason, even more intimate, and have so continued until the present day.i § 3. In the earliest period of the Roman law of which there is any certain trace remaining, and thenceforward for a considerable time after the epoch of the legislation known as the Twelve Tables, there were five actions {legis actiones) for the enforcement of all civil rights. Nothing could exceed the arbitrariness and formalism of these judicial proceedings. Absolute accuracy was required in complying with the established phrases and acts; any omission or mistake of a word or a movement was fatal. Gains, who wrote long after they were abolished, says of them: ''But all these actions of the law fell gradually into great discredit, because the over-subtlety of the an- cient jurists made the slightest error fatal."! These ac- tions finally became obsolete and disappeared, except one of them, which under a modified form was retained for certain very special cases until a late period of the empire. The analogy between them and the old "real actions" of the English common law is striking and complete. Their place, in all ordinary controversies, was supplied by a species of judicial proceedings much more simple and natural, to which the generic name "formula" was given.2 § 2, 1 See Bracton and his relations with the Roman law, by C. Giiter- bock; translated by Brinton Coxa. § 3, 1 Institutes, b. iv., § 30. § 3, 2 As to "formulas," see Gaius's Institutes, b. iv., §§ 30-52; Poste's ed. of Gaius, pp. 423-441; Sandars's Institutes of Justinian, pp. 63-67. It should be remembered that the formula was drawn up by or under the direction of the magistrate. I add, as an illustration, one of the most simple kinds of formulas, as given by Gaius, with a brief explanation of its various parts. It is a simple action to recover the price of a thing sold. "Judex esto, Quod Aulus Agerius Numerio Negidio hominem ven- diditj si paret Numerium Negidium Aulo Agerio sestertium X milUa dare § 4 EQUITY JUEISPEUDENCE. 4 § 4. These formulas were the regular steps or processes in a cause prior to the trial, reduced to writing, but always carefully regulated by fixed rules, and conducted in accord- oportere, judex Numerium Negidium Aulo Agerio sestertium X niillia condemnato, si non paret, absolvito. The judex esto, "let there be a judex," is merely the order for tlie appointment of a judex. The formula consists of three distinct parts. From quod to vendidit is the demonstratio , from si paret to dare oportere is the intentio; and from judex to the end is the condemnatlo. The formula ordinarily contained only these three parts. The demonstratio is the general statement of facts which are the cronnd of plaintiff's claim to recover. As in this case Aulus Agerius, the i Inin^ tiff says "that Aulus Agerius sold a slave to Nuraerius Negidius." The demonstratio varied, of course, in each particular ease. The intentio is the most important part. It is the precise statement of the legal demand made by the plaintiff; it presents and embodies the exact question of law involved in the case, and depending upon the facts as they shall, be established one way or the other. It must, therefore, exactly meet the law which would govern the facts alleged by the plaintiff, if true. Whether in this case the plaintiff sold the slave to the defendant at the price alleged, and whether the debt is still owing, is the matter to be decided by the judex. If it appear to the judex {si paret) that Numei-ius Negidius ought to pay to Aulus Agerius ten thousand sesterces, then the judex is to pronounce judgment against him; if it does not so appear to the judge, then he is to acquit. The condemnatio is the direction to the judex to condemn or to acquit, according to the true circumstances of the ease. The condemnatio was always pecuniary, a direction to condemn the defendant to pay a sum of money. The various modifications in the actions by the praetors largely consisted in their adding other kinds of specific reliefs, which might be awarded. Thus in three actions, to par- tition a family inheritance, to divide the property of partners, and to settle boundaries, the judex was directed "to adjudicate" the thing, in the sense of distributing it among the litigants entitled to portions. In these actions there was a fourth part of the formula containing such direction, and called the adjudicatio. Where the action was brought to recover a thing, and not a sum of money, the condemnatio sometimes left the sum to be paid by defendant to be fixed by the judex, at his discre- tion; and sometimes inserted the words nisi restituat, so that the defend- ant was only ordered to pay the sum of money, if lie refused or neglected to restore or deliver up the thing to the plaintiff. See Pomeroy's Intro- duction to Municipal Law, §§ 183, 184. 5 OEIGIN OF EQUITY JURISPRUDENCE. § 4 ance with prescribed forms. The parties appeared before the magistrate, and the formula was prepared by him, or under his direction. It contained, as the most important elements, what we would call the "pleadings," namely, a statement of the plaintiff's cause of action, bearing different names in different actions, which was expressed in certain technical language, varying with the nature of the action, of the claim, and of the relief asked; the defendant's an- swer, also varying according to the action and the defense ; it also contained the appointment of the lay person who was to try the issue and render judgment, the judex or the arbiter ; the rule of law which was to govern him, not stated, however, as an abstract proposition, but simply as a direc- tion, in short and technical terms, to render such a judg- ment if the plaintiff proved the case stated in the pleading, otherwise to dismiss the suit. The whole formula was con- tained in a few brief sentences, and the technical words or phrases used indicated clearly the nature of the action, the relief to be given, the defenses to be admitted, and the legal rule to be followed. The contrast between its brevity^ simplicity, and at the same time comprehensiveness, and the repetitions, redundancy, verbiage, and obscurity of the later common-law special pleadings, is very striking and instructive. The formula being thus prepared before the magistrate (the cause being at that stage in jure), the parties then went before the "judex," or "arbiter," and proceeded with the trial (the cause being then in judicio). He heard the testimony and the arguments of counsel, and rendered the judgment ; but the cause was thereupon taken before the magistrate a second time, who enforced the judgment and also possessed a revisory authority over the decision of the judex. It is plain that the functions of the "judex" corresponded closely with those of our jury; and even his power in rendering the judgment was not essentially different from that of the jury in giving their verdict, since the judgment itself, which ought to be ren- dered, was prescribed in the direction of the formula, and § 5 EQUITY JUEISPKUDENCE, 6 the judex had no more authority than the jury has in deter- mining the rule of law whioh should govern the rights of the parties.! The functions of the magistrates were more complex. § 5. The most important magistrates, after the develop- ment of the Roman law had fairly commenced, and down to the period under the empire at which the administration was entirely remodeled, were the praetors Urban and Pere- grine {Prcctor IJrhanus, Prcetor Peregrinus). The praetor, in the totality of his juridical functions, corresponded both to the English common-law courts and the Chancellor. As the English courts, by means of their legislative function, have built up the greater part of the law of England, so did the praetors, by the exercise of the same function, con- struct the largest part of the Roman jurisprudence, which was afterwards put into a scientific shape by the great jurists of the empire, and was finally codified in the Pan- dects of Justinian. This legislative work of theirs was done in a manner and form so outwardly different from that of the English judges, that many writers, and espe- cially the German commentators, who seem utterly unable to comprehend in its fullness the legislative attributes, both of the English and the Roman judicial magistrates, have failed to perceive the identity. The identity, however, ex- ists, and the differences are wholly formal. The legislative work of the English and American courts has been and still is done in the judgments and opinions rendered upon the decision of cases after the events have happened which § 4, 1 Of course it is not claimed by me that tbe "judex." or "arbiter," was identical with our jury, nor that he was the historical source of the jury. AH that I assert is, that there are striking analogies between the two; and of this no unprejudiced student of jurisprudence can, for a moment, doubt. I make this remark because the teachings of some Ger- man professors indicate an entire incapacity on their part to understand the development of the Roman jurisprudence under the light thrown upon it by the historical progress of the English law. See Pomeroy's Introduction to Municipal Law, §§ 315, 316, 317. 7 ORIGIN OF EQUITY JURISPRUDENCE. § 6 called for such official utterances. The same work of the Roman prretors was done in the edicts (edicta) which they issued upon taking office, and which in process of time be- came one continuous body of law, each magistrate taking what had been left by his predecessors, and altering, amend- ing, or adding to the same, as the needs of an advancing civilization required. The form of this edict was peculiar. Instead of laying down abstract propositions defining pri- mary rights and duties, or publishing formal commands similar to modern statutes, the magistrates announced that under certain specified circumstances a remedy would be granted by means of a designated action, where the prior law gave no such remedy; or that under certain circum- stances, if a person attempted to enforce a rule of the prior law by action, a defense which had not existed before would be admitted and sustained. § 6. The jurisdiction of the praetors, which was exer- cised by means of formulas, and in which a judex or other lay person was called in to decide the issues of fact, was called his ''ordinary" jurisdiction. In the later periods of the republic, there arose another jurisdiction termed the "extraordinary" {extra ordinem). In causes coming under this jurisdiction, the magistrate himself decided both the law and the facts, without the intervention of any judex, and unhampered by any technical requirements as to the proper formula or kind of action. The plaintiff al- leged the facts making out his cause of action, the defend- ant set forth his defense, and the magistrate decided. By this method remedies could be given which were not pro- vided for in any of the existing forms of action, and equi- table notions could be more freely applied, and thus incorporated into the growing mass of the national juris- prudence. In this extraordinary jurisdiction we can plainly see the prototype of English chancery procedure; while the ordinary methods by formulas were as certainly the analogues of the common-law forms of action. The § 7 EQUITY JURISPRUDENCE. 8 extraordinary jurisdiction continued for a long time side by side with the ordinary, growing in extent and importance until it became the only mode in common use. By a con- stitution of the Emperor Diocletian (A. D. 294), all causes in the provinces were required to be tried in this manner; and finally the same rule was made universal throughout the empire. Here, again, we may see another of the repeti- tions which history exhibits under the operation of like social forces. This event in the Eoman jurisprudence was in all its essential elements similar to the recent legislation of Great Britain and of the American states, by which all distinction between suito in equity and actions at law has been abolished, and the two jurisdictions have been com- bined in the same proceeding and conferred upon the same tribunal. § 7. As has been already stated, the legislative work of the praetors was accomplished by the introduction of new actions, whereby a right could be enforced, which the law prior to that time did not recognize, or which it perhaps absolutely denied. The number of particular actions thus invented or allowed by the praetorian law was large, and they have been separated by the commentators into many classes, according to various lines of division. It will be sufficient for my purposes of description to arrange them in three groups. The early law of Rome which existed prior to the time when the praetorian development fairly commenced, and the external form or shell of which was preserved through a large part of that development, — the jus civile, — was exceedingly stern, rigid, formal, and arbi- trary, pajdng little attention to abstract right and justice, reflecting in every part the character and customs of the primitive Romans. It admitted certain prescribed actions and defenses appropriate for certain facts and circum- stances, but for other facts and circumstances differing from those to which the existing actions or defenses were exactly adapted, it furnished no remedy. In their work of y ORIGIN OF EQUITY JURISPRUDENCE. § 7 building up a broader jurisprudence upon the narrow basis of this ancient jus civile, the praetors, in the first place, introduced a class of actions which were substantially the same as those provided by the existing law, unaltered in any of their essential features, but enlarged in the scope of their operation. In other words, the magistrates em- ployed the old-established actions of the jus civile, with- out changing the technical words, phrases, and parts of their formulae, but extended their application to new cases, facts, and circumstances. These new facts and circum- stances did not differ widely from the subject-matter to which the actions had been originally adapted by the former law ; they necessarily came within the same general principle which had furnished the rule of decision before the scope of the actions was thus enlarged. In a similar manner, the English law courts have, in later times, used the ancient actions of debt, covenant, and trespass, without altering their technical forms, for the decision of issues which had not arisen in the earlier periods of the common law. The second of the three groups or classes contained a large number of new actions first allowed by the praetors, which, though not substantially the same, were analogous or similar in their nature and objects to those which ex- isted in the ancient jus civile. The formulas of these new actions bore a general resemblance to those of the old, and were indeed patterned after them, but still differed from them in various important particulars. Necessary changes were made in the statement of the plaintiff's cause of ac- tion, of the defendant's defense, or of the direction for the judgment addressed to the judex or the arbiter. New cases were thus provided for; new rules of law were intro- duced, old ones were modified or repealed. The number of particular actions embraced in this class was large, and in the course of the legal development from age to age, the praetors were enabled by their means to soften the rigor of the old law, to remove its arbitrariness, and to mold its doctrines into a nearer conformity with the principles of § 8 EQUITY JUEISPRUDBNCE. 10 right and justice. The actions comprised in this class, and the service which they rendered in improving the Homan law, were strictly analogous to the actions of ejectment, case, trover, and especially assumpsit, and the work which they have performed in expanding and ameliorating the common law. The third class consists of the new actions introduced from time to time, which were wholly different, both in principle and form, from any that had existed under the old law. In their invention the magistrate dissevered all connection with the ancient methods, and by their use, more than by any other means, he constructed a jurispru- dence founded upon and interpenetrated by equitable doc- trines which finally supplanted the old jus civile, and be- came the Roman law as it was scientifically arranged by the great jurists of the empire, and is known to us as the Pandects and Institutes of Justinian.^ § 8. In their work of improving the primitive jus civile, the magistrates who issued edicts (who possessed the jus edicendi), and the jurisconsults who furnished authorita- tive opinions (respo7isa) to aid the praetors (those who possessed the jus respondendi),^ obtained their material §7, 1 Pomeroy's Introduction to Municipal Law, §§ 185-1 92 ; San- dars's Institutes of Justinian, pp. 67-71; Poste's Institutes of Gains, pp. 368, 400-406; Phillimore's Private Law among the Romans, pp. 150-159. § 8, 1 I have not, in the foregoing paragraphs, discussed the peculiar functions of the jurisconsults, and the effect of their "responses," because it was my object, not to describe the Roman law at large, but simply to point out the analogies between its modes of development, and those of our own law. I will, however, state the conclusion readied by the ablest modern scholarship : That although the responses of the jurisconsults always had a high authority, and although during a long period of time the magistrates were bound under certain limitations to adopt their official opinions as precedents, yet the magistrate alone possessed the creative function of legislating^ of making law. He went to the opinions of the official jurisconsults for his material, for the sources of his legislation ; but those opinions did not obtain the compulsive efficacy of laio^ until they had been adopted by the judicial magistrate, and reissued by him 11 OKIGIN OF EQUITY JURISPRUDENCE. § 8 from two sources, namely : At first, from what they termed the jus gentium, the law of nations, meaning thereby those rules of law which they found existing alike in the legal systems of all the peoples with which Rome came into con- tact, and which they conceived to have a certain universal sanction arising from principles common to human nature ; and at a later day, from the Stoic theory of morality, which they called lex nahirce, the law of nature. The doctrines of this jus gentium and of this lex naturce were often iden- tical, and hence arose the conception, generally prevalent among the juridical writers of the empire, that the ''nat- ural law" {lex naturce) and the ''law of nations" {jus gen- tium) were one and the same; or in other words, that the doctrines which were found common to all national systems were dictated by and a part of this natural law. The par- ticular rules of the Roman jurisprudence derived from this morality, called the law of nature, were termed ^'cequitas,^^ from cequum, because they were supposed to be impartial in their operation, applying to all persons alike. The lex naturcB was assumed to be the governing force of the world, and was regarded by the magistrates and jurists as having an absolute authority. They felt themselves, therefore, under an imperative obligation to bring the juris- prudence into harmony with this all-pervading morality, and to allow such actions and make such decisions that no moral rule should be violated. Whenever an adherence to the old jus civile would do a moral wrong, and produce a result inequitable {inmquum), the praetor, conforming his edict or his decision to the law of nature, provided a remedy by means of an appropriate action or defense. Gradually the cases, as well as the modes in which he would thus in- terfere, grew more and more common and certain, and thus a body of moral principles was introduced into the Roman through the means of his edict or his decisions. The theory long main- tained, that the jurisconsults possessed the power of legislating, and (hat they created the Roman jurisprudence, has been abandoned. See Pom- eroy's Introduction to Municipal Law, § § 315-317. § 9 EQUITY JUEISPBUDENCE. 12 law, which constituted equity {(Equitas) .^ This resulting equity was not a separate department; it penetrated the entire jurisprudence, displacing what of the ancient system was arbitrary and unjust, and bringing the whole into an accordance with the prevailing notions of morality. In its original sense, cequitas, cequum, conveyed the conception of universality, and therefore of impartiality, a having regard for the interests of all whose interests ought to be regarded, as contrasted with the having an exclusive or partial regard for the interests of some, which was the essential character of the old jus civile. At a later period, and especially after the influence of Christianity had been felt, the signification of cequitas became enlarged, and was made to embrace our modern conceptions of right, duty, justice, and morality. § 9. There are certainly many striking analogies be- tween the growth of equity in the Roman and in the Eng- lish law; the same causes operated to make it necessary, the same methods were up to a certain point pursued, and in principle the same results were reached. The differ- ences, however, are no less remarkable. No separate tri- bunal or department was made necessary in the Eoman jurisprudence, because the ordinary magistrates were will- ing to do what the early English common-law judges ut- terly refused to perform; that is, to promote and control the entire legal development as the needs of an advancing civilization demanded. While these common-law judges resisted every innovation upon their established forms, and shut up every way for the legal growth, the Eoman magis- trates were the leaders in the work of reform, and constantly anticipated the wants of the community. The English judges made a new court and a separate depart- ment indispensable; the Eoman prsetors accomplished § 8, 2 See Sandars's Institutes of Justinian, pp. 13, 14 ; Phillimore's Private Law among the Romans, pp. 21, 22; 2 Austin on Jurisi:)rudence, pp. 240-267. 13 ORIGIN OF EQUITY JURISPRUDENCE. §§10,11 every reform by means of their own jurisdiction, and pre- served in the jurisprudence a unity and homogeneity which the English and American law lacks, and which it can perhaps never acquire. Both these resemblances and these contrasts are exhibited in the following paragraphs, which describe the introduction of equity into the English system of jurisprudence. § 10. Origin of Equity in the English Law — Primitive Condition of the Law and the Courts. — During the Anglo- Saxon and early Norman periods, the law of England was, like that of all peoples in the first stages of their develop- ment, to a large extent consuetudinary. The primitive Saxon Codes, except so far as they re-enacted certain pre- cepts taken from the Holy Scriptures, or borrowed a few provisions from the then known remains of the Roman law, were chiefly redactions of prior existing customs. The Saxon local folk courts, and even the supreme tribunal of the Witana-gemote, not being composed of professional judges, were certainly guided in their decisions of particu- lar controversies by customs which, when established and certain, were considered as having the same obligatory character which we give to positive law.i § 11. In the reign of William the Conqueror the local folk courts of the Saxon polity were left in existence ; and they, together with the manor courts of the Norman barons, con- tinued to be the tribunals of first resort (to use a modern term) for the trial of ordinary disputes, through several succeeding reigns; but they gradually lost their functions and sunk into disuse as the more strictly professional tri- bunals grew in importance and extended their jurisdiction, until they were finally superseded by the itinerant justices appointed by the crown or by the King's Court as repre- sentative of the crown. William, however, made some § 10, 1 As to the apccount in following paragraphs, see 1 Speuce's Eq. Jur., pp. 87-128. § 12 EQUITY JURISPRUDENCE. 14 most important innovations. In the Curia Regis, King's Court, which then, and for a considerable time afterwards, was a body composed of barons and high ecclesiastics with legislative, judicial, and administrative functions as yet un- separated, he appointed a Chief Justiciary to preside over the hearing of suits. This creation of a permanent judicial officer was the germ of the professional common-law tri- bunals having a supreme jurisdiction throughout England, which subsequently became established as a part of the government, disti:' t from the legislative and the executive. He also appointed, from time to time, as occasion required, itinerant justices to travel about and hold "pleas" or pre- side over the Shire Courts in the different counties. These officers were temporary, and ceased when their special duties had been performed, but they were the beginning of a judicial system which still prevails in England, and which has been adopted in many of the American states. § 12. The organization thus made or permitted by "Will- iam continued without any substantial change, but yet with gradual modifications and progressive improvements, through several of the succeeding reigns. The business of the King's Court steadily and rapidly increased; under Henry II. its judicial functions were finally separated from the legislative, and from that time until its abolition in 1874, it has continued to be the highest common-law tribu- nal of original jurisdiction, under the name of the Court of King's Bench. In the reign of Henry I. itinerant justices were sometimes appointed, as by William the Conqueror, and under Henry II. their office and functions were made permanent; but during the reign of Edward III. their places were filled and their duties performed by the jus- tices of the Superior Courts, acting under special commis- sions empowering them to hold courts of oyer and terminer and of nisi prius. These itinerant justices — *' justices in eyre" — went from county to county, holding pleas civil and criminal, and as a consequence the old local 15 ORIGIN OF EQUITY JURISPEUDENCE. § 12 courts of the shire, hundred, and manor were abandoned as means of determining controversies between litigant ])ar- ties. The King's Court, even after it became a purely judi- cial bod}^, was attached to the person of the King, and fol- lowed him in his journeys and residences in different parts of the realm. The great inconvenience to suitors resulting from this transitory quality of the court was remedied Ijv Magna Charta, which provided in one of its articles that * ' Common Pleas shall no longer follow the King. ' ' In obe- dience to this mandate of the Charter, justices were ap- pointed to hear controversies concerning lands, and other matters purely civil, — known as ''common" pleas, — and the new tribunal composed of these judges was fixed at Westminster. Thus commenced the Court of Common Bench. The third superior common-law tribunal acquired its powers in a much more irregular manner. In arran- ging his government, William the Conqueror had estab- lished a board of high officials to superintend and manage the royal revenues, and a number of barons, with the chief justiciary, were required to attend the sittings of this board, in order to decide the legal questions which might arise. These judicial assessors, in the course of time, be- came the Court of Exchequer, a tribunal whose authority originally extended only to the decision of causes directly connected with the revenue, but its jurisdiction was subse- quently enlarged, through the use of legal fictions, and thus made, to a certain extent, concurrent with that of the two other Superior Law Courts. The office of Chancellor was very ancient. It had existed before the conquest, and was continued by William. Under his successors, the Chancellor soon became the most important functionary of the King's government, the personal adviser and repre- sentative of the crown, but, in the very earliest times, without, as it seems, any purely judicial powers and duties annexed to the position. How these functions were ac- quired, it is the main purpose of this historical sketch to describe. The three superior law courts whose origin has § 13 EQUITY JURISPRUDENCE. 16 thus been stated have remained, with some statutory modi- fication, through the succeeding centuries, until, by the Judicature Act of 1873, which went into operation Novem- ber 2, 1875, they and the Court of Chancer}^, and certain other courts, were abolished as distinct tribunals, and were consolidated into one ' * Supreme Court of Judicature. ' ' ^ § 13. The local folk courts left in existence at the con- quest, and even the itinerant justices and the central King's Court, for a while continued to administer a law which was largely customary. The progress of society, the increase in importance of property rights, the artificial system which we call feudalism, with its mass of arbitrary rules and usages, all demanded and rapidly produced a more com- plete, certain, and authoritative jurisprudence for the whole realm than the existing popular customs, however ancient and widely observed. This work of building up a positive jurisprudence upon the foundation of the Saxon customs and feudal usages, this initial activity in creating the common law of England, was done, not by parliamentary legislation nor by royal decrees, but by the justices in their decisions of civil and criminal causes. The law which had been chiefly customary and therefore unwritten, preserved by tradition, lex non scripta, was changed in its form by being embodied in a series of judicial precedents preserved in the records of the courts, or published in the books of reports, and thus it became, so far as these precedents ex- pressed its principles and rules, a written law, lex scripta^ § 12, 1 36 & 37 Vict., chap. 66, § 3 : "From and after the time ap- pointed for the commencement of this act, the several courts hereinafter mentioned (that is to say), the High Court of Chancery of England, the Court of Queen's Bench, the Court of Common Pleas at Westminster, the Court of Exchequer, the High Court of Admiralty, the Court of Probate, the Court for Divorce and Matrimonial Causes, and the London Court of Bankruptcy, shall be united and consolidated together, and shall consti- tute, under and subject to the provisions of this Act, one Supreme Court of Judicature in England." § 13, 1 The division of "written" and "unwritten" law made by Black- stone, and writers "who have copied his notions, which makes the "written" 17 ORIGIN OF EQUITY JUKISPRUDENCE. § 14 § 14. Early Influences of the Roman Law. — In this work of constructing a jurisprudence, the early common- law judges, as well as the Chancellor at a later day, drew largely from their own knowledge of the Eoman law. The evidence, both internal and historical, is conclusive that the common law of England, in the earliest formative period, was much indebted to that Roman jurisprudence which enters so largely into the judicial systems of all the western nations of the European continent. Besides the proof furnished by the law itself, several important facts connected with the external history of its primitive stages point to this conclusion. The clergy, who possessed all the learning of the times, were students of the Roman law. The earliest justices of the common-law courts, as well as the chancellors, were generally taken from the higher or- ders of ecclesiastics ; and on all occasions where it was necessary for them to legislate in the decision of particular cases, to create new rules for relations hitherto undeter- mined, they naturally had recourse to the code with which they were familiar, borrowed many of its doctrines, and adopted them as the ground of their judgments. Nor was a knowledge of the Roman law confined to the courts; its study became a part of what would now be called the higher education. When the spirit of free inquiry was suddenly awakened at the commencement of the twelfth century, one of its most remarkable manifestations was shown in the scientific study of the Roman law which began at the Uni- versity of Bolog-na in 1120, and soon extended over western Europe. In 1143, Archbishop Theobald, who had himself studied at Bologna, brought a distinguished civilian, Vaca- ideutical with the statutory, and describes the entire portion embodied in judicial decisions as "unwritten," is simply absurd. This definition is another instance of Blackstone's mistaking the meaning of Roman law terms. The lex non scripta is customary, traditional, preserved in the popular memory; a law expressed in judicial records or in statutes is written. The Roman prgetorian edicts formed a part of the lex scripta as much as the leges or the imperial "constitutions." 1—2 § 15 EQUITY JUEISPRUDENCE, 18 rius, into England, and this jurist in 1149 established a school of the Roman law at the University of Oxford, which soon rose to an eminence second only to those of Paris and of Bologna. King Stephen afterwards prohibited Vaca- rius from public teaching, but this act, instead of stopping the study in England, produced the contrary effect of stim- ulating and promoting it. Bracton's celebrated work, De Legibus et Consuetudinibus Anglige, written between A. D. 1256 and 1259,^ and which is an epitome or systematic in- stitute of the common law as it then existed, exhibits in the plainest manner the results of the judicial labor and scien- tific study which had preceded 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 recep- tion, although the written sources of the Roman law were not at all received as having a legislative authority, Brac- ton properly included such Roman legal matter among the leges et consuetudines AnglicB." ^ § 15. Had it not been for several powerful causes, partly growing out of the English national character, or rather, the character of the Norman kings and barons who ruled over England, and partly arising from external events con- nected with the government itself, it is probable that this work of assimilation and of building up the common law with materials taken from the never-failing quarries of the Roman legislation, would have continued throughout its entire formative period. As the corpus juris civilis con- tains the results of the labors of the great philosophic jurists who brought the jurisprudence of Rome to its high- est point of excellence, and as its rules, so far as they are concerned with private rights and relations, are based upon § 14, 1 Braetou and his relations with the Roman law, by Carl Guter- bock; translated by Brinton Coxe, p. 24. § 14, 2 Ibid, p. 62. 19 ORIGIN OF EQUITY JUEISPRUDENCE. § 16 principles of justice and equity, it is also certain that if this work of assimilation had thus gone on, the common law of England would from an early day have been molded into the likeness of its original. Through the decisions of its own courts the principles of justice and equity would every- where have been adopted, and would have appeared throughout the entire structure. All this would have been accomplished in the ordinary course of development, by the ordinary common-law tribunals, without any necessity for the creation of a separate court which should be charged with the special function of administering these principles of right, justice, and equity. The growth of the English law would have been identical in its external form with that of Rome; it would have proceeded in an orderly, unbroken manner through the instrumentality of the single species of courts, and the present double nature of the national juris- prudence — the two great departments of ''Law" and ** Equity" — would have been obviated. This result, how- ever, was prevented by several potent causes which checked the progress of the law towards equity, narrowed its devel- opment into an arbitrary and rigid form, with little regard for abstract right, and made it necessary that a new juris- diction should be erected to administer a separate system more in accordance with natural justice and the rules of a Christian morality. These causes I proceed to state. § 16. Causes Which Made a Court of Equity Necessary. The one which was perhaps the source and explanation of all the others consisted in the rigid character, external and internal, which the common law soon assumed after it began to be embodied in judicial precedents, and the unreasoning respect shown by the judges for these decisions merely as precedents. There was, of course, a time, before the char- acter of the law as a lex scripta became well established, when this rigidity and inflexibility was not exhibited. ^ The § 16, 1 Thus Bracton, who wrote during this formative period, before the law had entirely assumed its rig^id character, adopting the maxim § 16 EQUITY JURISPRUDENCE. 20 history of civilized jurisprudence can show nothing of the' same kind comparable with the blind conservatism with which the common-law judges were accustomed to regard the rules and doctrines which had once been formulated by a precedent, and the stubborn resistance which they inter- posed to any departure from or change in either the spirit or the form of the law which. had been thus established. The most that was ever allowed was the extension of a doc- trine to facts and circumstances presenting some points of difference from those which had already formed the subject-matter of adjudication, but in which this difference was not so great as to require a substantial modification of the principle. The frequent occurrence of cases in which the rules of the law produced manifest injustice, and of cases to which the legal principles as settled by the prece- dents could not apply, and the unwillingness of the common- law judges to allow any modification of the doctrines once established by their prior decisions, furnished both the occasion and the necessity for another tribunal, which should adopt different methods and exhibit different ten- dencies.2 which he found in the Roman law, In omnibus, maxime tamen in jure, eequitas spectanda est, asserts that the common-law courts should be guided by equity even in questions of strict law: Lib. 2, chap. 7, fol. 23 b; Lib. 4, fol. 186. But this doctrine was soon abandoned. § 16, 2 This position of resistance, so soon assumed by the common- law judges, is well desci'ibed by Mr. Spence in the following passage: "It has always been held by the great oracles of the law that the prin- ciples of the common law are founded on reason and equity; and as long as the conmion 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 expressly provided for, but which were within the spirit of the existing law, but also of ha^'ing the principles of equity applied to it by the judges in their decisions, as circumstances arose which called for the application of such principles. But in the course of time a series of precedents was established by the decisions, or responsa, as Bracton calls them, of the judges, which were considered of almost equally binding authority on succeeding judges as were the acts of the legislature; and it 21 ORIGIN OF EQUITY JURISPRUDENCE. § 17 § 17. When the same difficulty of rigidness, arbitrari- ness, and non-adaptation to the needs of society began to be severe!}^ felt in the administration of the law at Rome, the magistrates, as I have before shown, supplied the remedy by means which they already possessed. The praB- tors constantly invented new actions and defenses, which preserved, however, a resemblance to the old ; and at length they boldly freed the jurisprudence from the restraints of the ancient methods, and introduced the notion of ccquitas by which the whole body of judicial legislation be- came in time reconstructed. All the process of develop- ment was completed without any violent or sudden change in the judicial institutions, and the Roman law thus pre- served its unity and continuity. The English common-law judges, on the other hand, set themselves with an iron de- termination against any modification of the doctrines and rules once established by precedent, any relaxation of the settled methods which made the rights of suitors to depend upon the strictest observance of the most arbitrary and technical forms, any introduction of new principles which should bring the law as a whole into a complete harmony with justice and equity. I would not be understood as as- serting that the conservatism of the courts was so absolute as to prevent any improvement or progress in the law from age to age. I only describe the general attitude and tend- ency during the period in which the court of chancery took its rise and for a long time thereafter. The improvement became difficult to make new precedents without interfering with those which had already been established. Hence (though new precedents have ever continued to be made) the common law soon became to a great ex- tent 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" : 1 Spence's Eq. Jur., pp. 321, 322. The description of the text is not intended to apply to the entire history of the common law. Another spirit has animated its judges since the example set by Lord Mansfield, and its inherent power of development, when freed from the narrow and obstructive notions of the earlier judges, has been fully ex- hibited both in England and in the United States. § 17 EQUITY JURISPRUDENCE. 22 which an advancing civilization effected in the nation itself was to a partial extent reflected in the law. It is certain, however, beyond the possibility of dispute, that the English common law was always far behind the progress of the English people, and in very many particulars retained the impress of its primitive barbarism down to the present century. By the continental jurists contemporary with Coke, Lord Hale, or Blackstone, it was regarded with min- gled feelings of wonder and contempt as a barbarous code ; and except in its provisions securing the personal and political rights of the individual, and in its antagonism to the slavish doctrine of the Roman jurisprudence. Quod placuit principi legis vigorem hahet, it was a barbarous code. Parliamentary legislation occasionally interfered and effected a special reform; and the principles of equity as administered by the Court of Chancery reacted to a slight degree upon the law; but still the common-law judges as a body exhibited the blind conservatism which I have described down to a period wholly modern. With the par- tial exception of Lord Holt, whose masculine intellect some- times broke away from the trammels,^ Lord Mansfield was § 17, 1 Lord Holt was never thoroughly emancipated from a fanatical devotion to the ancient law, and sometimes resisted innovations which even his inferior associates on the bench could see were demanded by the necessities of society and of business. A remarkable instance may be seen in his refusal to adopt the customs of merchants in regard to promis- sory notes, a refusal which compelled Parliament to interfere by statute and place these contracts upon the same basis as inland bills of exchange. On the other hand, his celebrated opinion in Coggs v. Bernard was an unprecedented departure from the ordinary modes of the court, and opened the way for subsequent judges to follow into the rich mines of the Roman jurisprudence. And his no less celebrated judgment in Ashby V. White exhibited, more clearly than has perhaps been done by any other judge, the unlimited power of development inherent in the common law where its essential principles are freely carried out and its bondage to form and established precedent is broken. Among the recent English judges who have represented the ancient rather than the modern ten- dencies of the law, and who have exalted its rules of form, Baron Parke ■ stands the foremost, and has actually obtained the reputation of a 23 OBIGIN OF EQUITY JURISPRUDENCE. § 18 the first great English judge who consciously, and with sys- tematic and persistent purpose, adopted the policy of the Eoman praetors, endeavored to impart a new life and give a new direction to the growth of the common law, and by means of equitable principles in combination with its own methods to reform the law from within. As a reward for these innovations. Lord Mansfield was charged in his own day — and the accusation has been handed down as a part of judicial history — with ignorance of the English law. Although the work which Lord Mansfield began was inter- rupted by his narrow-minded successor. Lord Kenyon, it has been taken up and carried on in the same spirit by many of the able judges who have adorned the English bench within the present century, and by the state and national courts of this country, until the common law has now become a truly scientific and philosophical code. § 18. A second cause which prevented a development of the national jurisprudence in harmony with and by the aid of the equitable notions contained in the Roman codes, and which therefore tended to the creation of a separate court of chancery, was the fact that the rules concerning real property and, to a considerable extent, those concerning personal status and relations, were feudal in their origin and nature. From whatever source the ultimate notion of feudal tenure was derived, whether from the Roman em- phyteusis or from German tribal customs, it is certain that there was nothing in common between the institutions of feudalism as they existed under the Norman kings, and the doctrines of the Roman law. As long, therefore, as these institutions continued to flourish there was of necessity a jurist, because he was able to discuss and state these arbitrary dogmas in a scientific manner, and to clothe them with some appearance of a philosoi^hie system. But in no series of English reports are the rights of suitors made to depend upon a compliance with mere forms, and the decisions made to turn upon mere technicalities, more than in the volumes of Meesou and Welsby. §§19,20 EQUITY JUEISPRUDENCE. 24 large and most important part of the English law which could receive no accession or improvement from doctrines of the Roman jurisprudence; no combination of the two w^as possible. Roman principles were subsequently intro- duced by the Court of Chancery in its enforcement of uses as a special kind of property in lands ; but there was even then no combination. Feudal dogmas were maintained by the courts of law, and Roman notions by the court of equity; and the two systems ran on, confronting and even hostile to each other, until the Parliament interposed in the reign of Henry VIII., and by the celebrated Statute of Uses effected a partial union. § 19. Although the feudal institutions in their integrity were undoubtedly an obstacle to the introduction of Roman law principles, and the development of one homogeneous jurisprudence for the English people, still the obstacle was not insuperable. The same institutions existed on the con- tinent, and in Germany, especially, they have largely modi- fied the law down to the time when the present system of codes was adopted. Notwithstanding this fact, the Roman law has entered as the principal element into the juris- prudence of every western continental nation, and through it the doctrines of equity have been everywhere accepted, not as constituting a separate department, but as pervading and influencing the whole. § 20. The third cause which I shall mention, and it was an exceedingly important one in its effects upon the juris- diction of chancery, which had already become quite exten- sive, arose from the position and policy of the kings, the Parliament, and the nation towards the church of Rome. The English kings had maintained a long and bitter struggle with the Pope and his emissaries among the higher ecclesiastics to maintain the independence of the crown and of the Anglican branch of the church. In the reign of Edward III., the exactions of the Papal See became pecu- liarly hateful to the King and to the nation. Having the 25 ORIGIN OF EQUITY JURISPRUDENCE. § 20 support of his Parliament, Edward refused payment of the tribute which had been demanded by the Pope, and meas- ures were taken to prevent any further encroachments. A general hostility, or at least a sentiment of opposition, to the Papal court and to everything connected with it had sprung up and spread among all ranks of the laity. The Eoman law fell under this common aversion. Partly from its name, partly because it was supported by the Papal See, both on account of its connection with the canon law, and on account of its doctrines favorable to absolutism, and partly because a knowledge of it prevailed most extensively among the ecclesiastics, so that it was popularl}^ regarded as an instrument of the church, the Roman law, which had been treated with favor by Henry II., Henry III., and Ed- ward I., and by the judges themselves in former reigns, became an object of general dislike, and even antipathy. In the reign of Henry III. the barons formally declared that they would not suffer the kingdom to be governed by the Roman law ; ^ and the common-law judges prohibited it from being any longer cited in their courts. This action of the barons and judges was certainly a mistake, and it produced an opposite effect from the one intended. The Roman law, instead of being banished, was simply trans- ferred to another court, which was not governed by com- mon-law doctrines. As the law courts intentionally cut themselves off from all opportunity of borrowing equitable principles from this foreign source, the necessity arose for a separate tribunal, in which those principles could be § 20, 1 "Quod noluerunt leges Angliaj mutare, quae usque ad illud tem- pus usitatae fuerunt et approbatce." The occasion upon which this memorable declaration was made, at the Parliament of Merton, A. D. 1236, was the attempt of the ecclesiastics to introduce the doctrine that illegitimate children are made legitimate by the subsequent marriage of their parents. This doctrine was peculiarly distasteful to the English barons, since it interfered Avith the feudal rules of inheritance. For a full account of the controversy in all its stages, see Bracton and his relations with the Roman Law, p. 129. Blackstone states the time and place to have been the Parliament of Tewksbuiy, A. D. 1234. § 20 EQUITY JURISPRUDENCE. 26 recognized. It therefore followed, immediately upon this prohibition, that the hitherto narrow jurisdiction of the Court of Chancery was greatly increased, and extended over subject-matters which required an ample and constant use of Roman law doctrines. To the same cause was chiefly due the selection, which was really a necessity, of chancel- lors from among the ecclesiastics, during the period while the jurisdiction of the court was thus enlarged and established. 2 § 20, 2 In confirmation of the text, I quote the following passages from Mr. Spence. Speaking of the prohibition by the common -law judges mentioned in the text, he says: "Perhaps one object of the judges might have been to exclude the doctrine as to fidei-commissa, or trusts, which first came distinctly into notice during this reign (Richard II.). The effect, however, of the exclusion of the Roman law from the com- mon-law tribunals was that a distinct code of laws was formed and administered in the Court of Chancery, by which the enjoyment and alienation of property were regulated on principles varying in many essential particulars from the system which those who originated and carried into effect the exclusion of the Roman law were so anxious to preserve. Nor were these united endeavors for the exclusion of the Roman law less important in fixing the appointment of the office of Chancellor in the members of the clerical body. Notwithstanding all the efforts that were made to repress them, trusts soon became general. Some rules for their regulation were absolutely necessary. It was from the Roman law they had sprung up; who so proper to introduce and system- atize the rules necessary for their regulation as those who were now ex- clusively conversant with this law, and who alone, as it was excluded from the common-law courts, could resort to it for their guidance? Ac- cordingly, from this time, with some exceptions, none but clerical chan- cellors were appointed, down to the twenty-first year of Henry VIII. It may be well doubted whether but for the last circumstance the system of equitable jurisprudence which we find established in the reign of Henry VIII., on which the doctrine of uses and much of the modem jurisdiction of the court is founded, would then have existed. The antip- athy to the Roman law which in the reign of Elizabeth was extended, as regards a considerable portion of the community, to everything Roman, and the intensity of which has scarcely yet subsided, broke forth in the latter end of the reign of Elizabeth, and in that of James I., in a way that leaves little doubt as to what would have become of the equitable principles of the Court of Chancery, if that court in its infancy had been permanently committed to common-law judges as chancellors. I cannot 27 ORIGIN OF EQUITY JUKISPEUDENCB. § 21 § 21. The Earliest Common-law Actions and Procedure. The last cause which I shall mention, and practically the most immediate and efficient one in its operation fo prevent any expansion of the common law, so as to obviate the necessity of a separate equitable jurisdiction, was the pecu- liar procedure which was established by the courts at a very early day, and to which they clung with a surprising tenacity. This procedure furnished a fixed number of **forms of action." Every remedial right must be en- forced through one of these forms; and if the facts of a particular case were such that neither of them was appro- priate, the injured party was without any ordinary legal remedy, and his only mode of redress was by an application made directly to the King. The initial step in every action but here notice, as some confirmation of the conjecture which is hazarded above, that a writer of the reign of James I., who, if not, as he styles himself, a sergeant, was evidently speaking the sentiments of that order, says : 'The common law commandeth all that is good to be done' ; 'The suit by subpoena is against the common weal of the realm.' The whole of the system which fonnerly prevailed in the Court of Chancery as to uses, and which was then applied to trusts, is also denounced by him in terms which show that under chancellors taken from the professors of the common law merely, the modern system of equitable jurisprudence would never have been reared, at least in the Court of Chancery. One of his complaints is, that relief was given where the amount secured by a bond or recognizance had been paid, and no release obtained." (It was one of the absurd doctrines of the old common law, that a sealed instrument could only be discharged by another instrument of as high a character. If the debtor on a bond paid the full amount, and failed to obtain an acquittance under seal, or a surrender up of the instrument, even though he took a written receipt in full, he was still liable, and could have no defense to an action on the bond ! One of the first measures of equity was to overthrow this iniquitous rule by enjoining the action at law brought under such circumstances against the debtor, and it is of this interference that the writer in question bitterly complains. He says:) "When a bill has been made to the Chancellor that such a man should have great wrong to be compelled to pay two times for one thing, the Chancellor, not knowing the goodness of the common law ( !), has timor- ously directed a subpoena to the plaintiff (in the action at law) ; and the Chancellor, regarding no law, but trusting to his own wit and wisdom, giveth judgment as it pleaseth him" : 1 Spence's Eq. Jur., p. 347. § 21 EQUITY JURISPRUDENCE. 28 was a written document issued in the name of the King, called a writ, which was both the commencement and the foundation of all subsequent proceedings. This document gave a brief summary of the facts upon which the right of action was based, and contained certain technical formulas indicating what form of action was brought and what remedy was demanded. If it had been possible for suitors or the officers of the court to multiply these writs indefi- nitely, so as to meet all possible circumstances and social relations, there would have been no difficulty, and the proce- dure could have been expanded so as to embrace every variety of wrong and every species of remedial right which might subsequently arise in the course of the national de- velopment. But there was absolutely no such possibility, and herein was the essential vice of the system. The nature of these writs was fixed, and could not be substantially changed. A writ had been settled, not only for each of the different ''forms of action," but for the facts, circum- stances, and events which could constitute the subject- matter of the particular actions embraced within each one of these several "forms of action." The precedents of all the writs which had been thus established were kept in an office connected with the chancery, called the Registra Bre- vium. Certain officers of the chancery were charged with the duty of issuing the writs to plaintiffs, and this they did by selecting and copying the one which agreed with the facts of the applicant's case. If no writ could be found in the collection which substantially corresponded with the facts constituting the ground of complaint, then the plain- tiff could have no action. The chancery clerks could not draw up entirely new writs, nor alter the existing ones in any substantial manner; it is probable, however, that they assumed to make some slight changes, so as to accommo- date the recitals to the facts of special cases, but this power could only be exercised within the narrowest limits. There were, however, certain kinds of facts connected with every cause of action, which might be varied. The statements in 29 ORIGIN OF EQUITY JURISPRUDENCE. § 22 the writs were somewhat general in their terms, some ap- plying to land, some to chattels, others to persons, debts, torts ; and, of course, the particulars of quantity, size, value, time, place, amount of damage, and the like, were not mate- rial, and could be varied without limit. One other fact of the utmost importance remains to be mentioned. Although the chancery clerks decided in the first place upon the form and kind of writ in every case, and thus determined the species of action to be brought, this decision did not in the least protect or secure the plaintiff after he had com- menced his action. When the action came before the com- mon-law courts, the judges assumed and constantly exer- cised the power of determining the sufficiency of the writ; and if they held that it was not the proper one for the case, or that its recitals of facts or formulas were imperfect or mistaken, no attention was given to the prior decision of the chancery officials, the writ and action were dismissed, and the plaintiff thrown out of court. § 22. The ancient actions of the common law, prior to the statutory legislation hereafter mentioned, as described by Bracton, were of two general classes : 1. Those which concerned lands and all estates or interests therein; and 2. Those which concerned persons, chattels, contracts, and torts. The former class, the Real Actions, included a con- siderable number of particular actions, adapted to various estates and rights, some for determining the title, others for the recovery of possession merely; and were all techni- cal and arbitrary in their modes of procedure. The action of ejectment by which they were superseded was a growth of later times. The second class, the Personal Actions, con- tained two actions ex contractu, ''Debt" and ''Covenant," and two ex delicto, "Trespass" and "Detinue." "Ee- plevin," which was one of the most ancient judicial pro- ceedings known to the English law, was so restricted in its use to special circumstances and inferior courts that it was not classified among the ordinary common-law forms of § 23 EQUITY JUEISPRUDENCE. 30 action. The functions of these four personal actions are so well known that no description of them is necessary. § 23. From this enumeration it is plain that the common law furnished a verj- meager system of remedies, utterly insufficient for the needs of a civilization advancing beyond the domination of feudal ideas. The appliances. for main- taining rights over land were perhaps sufficient in num- ber and in variety, but they were excessively cumbrous, and the rights of suitors were liable to be defeated by some failure in technical matters of form. The lack of remedial instruments was chiefly felt in the class of personal actions. No contract could be enforced unless it created a certain debt, or unless it was embodied in a sealed writing. No means was given for the legal redress of a wrong to person or property, unless the tortious act was accom- panied with violence, express or implied. The injuries and breaches of contract which now form the subject-matter of so much litigation were absolutely without any legal rem- edy. It is true, the ancient records show a few instances in which the action of trespass was extended to torts with- out violence, such as defamation, but these cases were exceptional and governed by no legal rule. The chief de- fect, however, of the legal procedure, which rendered it incomplete as a means of administering justice, and wholly insufficient for the needs of a people whose social relations were constantly growing more complex, consisted in its in- ability to adapt its actual reliefs to the varying rights and duties of litigants. Whatever might be the form of action used, the remedy conferred by its judgment was either a recovery of the possession of land, a recovery of the pos- session of chattels, or a recovery of money. Although these simple species of relief might be suited to a primitive society, the necessity of other and more specific forms, adapted to various circumstances and relations, was felt as soon as the progress of the nation towards a higher civilization had fairly begun. From the causes which I 31 ORIGIN OF EQUITY JURISPRUDENCE. §§24,25 have thus brie% described, the common-law courts were closed against a large and steadily increasing class of rights and remedies, and a distinct tribunal, with a broader and more equitable jurisdiction and mode of i^rocedure, became an absolute necessity, or else justice would be denied. § 24. Statute of Edward I. Concerning New Writs. — Par- liament at length interposed with a reformatory measure which was intended to be radical, and which perhaps might have checked the growing jurisdiction of chancery if the common-law judges had treated the statute in the same liberal spirit with which it was enacted. As all writs for the commencement of actions were drawn up by the clerks in chancery, the legislature attempted to remove all the existing difficulties by enlarging the powers of these offi- cials, and conferring upon them a wide discretion in the invention of new forms of writs, suitable to new condi- tions of fact, and providing for remedial rights hitherto without any means of" enforcement. In the reign of Ed- ward I. the following statute was passed: ^ ''Whensoever from henceforth it shall fortune in chancery that in one case a writ is found, and in a like case falling under like law and requiring like remedy is found none, the clerks of the chancery shall agree in making the writ, or the plain- tiff may adjourn it into the next Parliament, and let the cases be written in which they cannot agree, and let them refer themselves to the next Parliament, and by consent of men learned in the law a writ shall be made, lest it should liappen after that the court should long time fail to minister justice unto complainants." § 25. Limited Results of This Legislation. — The general intent of this enactment is perfectly clear, and it should have been liberally and largely construed in accordance with that intent. The common-law judges, however, ap- § 24, 1 13 Edw. I., chap. 1, § 24. § 26 EQUITY JURISPRUDENCE. 32 plied to it a strict and narrow construction, a literal and verbal interpretation, wholly foreign to its design and meaning. Although by its means the new common-law forms of action known as ''Case," ''Trover," and "As- sumpsit" were invented, which in later times have been the most potent instruments for the development and im- provement of the common law itself,^ yet so far as the legislature proposed to enlarge the scope of the law by the introduction of equitable principles and remedies, and thereby to stop the growth of the equitable jurisdiction of chancery, that purpose was wholly frustrated by the action of the law judges in construing and enforcing the statute. The main points in which this restrictive interpretation was made effective, so as to defeat the ultimate object of the statute, were the following: — § 26. 1. The act permitted the framing of new writs in cases "falling under like law and requiring like remedy" with the existing ones. Upon this permissive language the courts put a highly restrictive meaning. As the common- law forms of action gave only three different kinds of reme- dies, every remedy obtained through the means of the new writs must be like one of these three species. Thus at one blow all power was denied of awarding to suitors any spe- cial equitable relief which did not fall within one or the other of these three classes, and parties who required such special forms of remedy were still compelled to seek them from another tribunal. The same was true, irrespective of the particular kinds of relief, of all cases which might arise, quite dissimilar in their facts and circumstances from those to which the existing forms of action applied; not falling under "like law," they were held to be without the scope of the statute, and the complainants could obtain no redress from the common-law courts. § 25, II have elsewhere described the manner in which these new ac- tions were invented, — one of the most interesting events in the history of the English law. See Pomeroy's Introduction to Municipal Law, §§ 200- 204. 33 OKIGIN OF EQUITY JUKISPEUDENCE. §§ 27-29 § 27. 2. The statute only provided for new writs on bo- half of plaintiffs. As civilization progressed, and the rela- tions of men g-rew more intricate from increase of com- merce, trade, and other social activities, new defenses as well as new causes of action constantly arose. Although these were not within the letter of the act, they were fairly within its spirit. But the law courts adhered to the letter, and ignored the spirit. If, therefore, the new matter of defense did not fall within the prescribed formulas of the legal actions, and did not conform to the established rules defining legal defenses, the party must seek relief in some manner from the jurisdiction of the chancellor.^ § 28. 3. Although the statute authorized the ' ' clerks of chancery" to frame the new writs, and seemed by implica- tion to confer upon them the absolute powers with respect to the matter which, it was conceded, were held by Parlia- ment, still the common-law judges assumed for themselves the same exclusive jurisdiction to pass upon the propriety and validity of the new writs which they had always exer- cised over those issued by the clerks prior to the statute. They did not regard the action of the chancery officials in sanctioning a writ which would give a new remedial right to the plaintiff as at all binding, and in fact rejected all the new writs contrived in pursuance of the statute, which did not closely conform to some one of the existing precedents. The chancery clerks, being ecclesiastics and acquainted with the Roman law, seem to have fashioned most of their new writs in imitation of the Roman formulm; but all these innovations upon the established methods the law courts refused to accept. § 29. This legislation, however, produced in the course of time the most beneficial effects upon the development § 27, 1 This jurisdiction, to be effective, would generally be exercised by means of enjoining the legal action brought against the party apply- ing to the chancellor, and in which his attempted defense had been rejected. 1—3 § 29 EQUITY JURISPRUDENCE. 34 of the common law itself, independently of the chancery jurisdiction. Upon the basis of certain new writs con- trived by the chancery clerks and adopted by the law judges, three additional legal actions were invented, "Tres- pass on the Case," and its branches or offshoots, "Trover," and "Assumpsit," which have been the most efficient and useful of all the forms of legal actions in promoting the growth of an enlightened national jurisprudence. With- out the action of ' ' Case ' ' applicable to an unlimited variety of wrongs, and affording an opportunity for enforcing the maxim, Ubi jus ihi remedium, and the action of "Assump- sit," by which the multiform contracts growing out of trade and commerce could be judicially enforced, it is safe to say that the common law of England would have re- mained stationary in the condition which it had reached at a time not later than the reign of Edward III. These two actions resembled the actiones bonce fidei of the Roman law, in admitting motives of natural right and justice for the decision of causes, instead of purely technical and arbi- trary rules of form. When at a still later day the prin- ciples of equity began to react upon the law, and the common-law judges freely applied these equitable doctrines in adjudicating upon legal rights, it was chiefly through these actions of Case and Assumpsit that the work of re- forming and reconstructing the common law was accom- plished. The actions of Trespass, Covenant, and Debt have remained, even to the present day, technical in their modes and arbitrary in their rules; but the actions of Case, Trover, and Assumpsit have been free from for- mal restraints, flexible in their adaptability, capable of being administered in conformity with equitable doctrines. Through their means, many of the rules which were origi- nally established by the Chancellor have been incorporated into the law, and are now mere legal commonplaces. i § 29, 1 For au account of the origin and progress of these actions, see 1 Spence's Eq. Jur., pp. 237-254; Pomeroy's. lutroduetion to Municipal Law, §§ 200-204. 35 ORIGIN OF EQUITY JURISPRUDENCE. §§30,31 § 30. Commencement and Progress of the Chancery Ju- risdiction. — I have thus far described the causes existing in the early condition of the common law, and in the attitude of the law courts, which rendered necessary a separate tribunal with an equitable jurisdiction, and a procedure capable of being adapted to a variety of cir- cumstances, and of awarding a variety of special remedies. I now proceed to state the origin of this tribunal, and the principal events connected with the establishment of its jurisdiction. § 31. Original Powers of the King's Council. — Under the early Norman kings, the Crown was aided by a Coun- cil of Barons and high ecclesiastics, which consisted of two branches, — the General Council, was was occasionally called together, and was the historical predecessor of the Parliament, and a Special Council, very much smaller in number, which was in constant attendance upon the King, and was the original of the present Privy Council. It was composed of certain high officials, as the Chancellor, the Treasurer, the Chief Justiciary, and other members named by the King. This Special Council aided the Crown in the exercise of its prerogative, which, as has been stated, em- braced a judicial function over matters that did not or could not come within the jurisdiction of the ordinary courts. The extent of this judicial prerogative of the King was, from its nature and from the unsettled condi- tion of the countr}^, very ill defined. It appears from an ancient writer that in the time of Heniy I. the Select Council generally took cognizance of those causes which the ordinary judges were incapable of determining. From later records it appears that the council acted on all applications to obtain redress for injuries and acts of oppression, wherever, from the heinousness of the offense, or the rank and power of the offender, or any other cause, it was probable that a fair trial in the ordinary courts would be impeded, and also wherever, by force and vio- § 32 EQUITY JURISPRUDENCE. 36 leiice, the regular administration of justice was hindered. The council also seems to have had a jurisdiction in cases of fraud, deceit, and dishonesty, which were beyond the reach of common-law methods. It is evident, however, that this extraordinary^ jurisdiction of the King and coun- cil was not always exercised without opposition, especially when the matters in controversy fell within the authority of the common-law courts. § 32. Original Common-law Jurisdiction of the Chan- cellor. — Side by side with this extraordinary or preroga- tive judicial function exercised by the King, or by the Select Council m his name and stead, there grew up a jurisdiction of the Chancellor. This is not the place to detail the numerous special powers of that officer, for we are only concerned with those which were judicial. It is certain that the Chancellor possessed and exercised an im- portant ordinary — that is, common-law — jurisdiction, simi- lar to that held by the common-law courts, and wholly independent of the extraordinary prerogative jurisdic- tion originally possessed by the King and council, and afterwards delegated to the Chancellor himself. The proceedings in causes arising before the Chancellor, under this, his ordinary jurisdiction, were commenced by com- mon-law process, and not by bill or petition; he could not summon a jury, but issues of fact in these proceedings were sent for trial before the King's Bench. When this ordinary common-law jurisdiction of the Chancellor com- menced is not known with certainty; it had risen in the reign of Edward III. to be extensive and important, and it had probably existed through several reigns. i^ § 32, 1 Many of the cases appearing by the earliest records to have been decided by the Chancellor, and which have been regarded h\ some writers as showing that his equitable powers were then ill defined, and included matters of purely legal cognizance, should undoubtedly be re- §32, (a) This paragraph is cited Aliceville Lumber Co. (Ala.), 74 in Alabama, T. & N. Ey. Co. v. South. 441. 37 ORIGIN OF EQUITY JURISPEUDENCE. §§33,34 § 33. Jurisdiction of Grace Transferred to the Chan- cellor. — In addition to this ordinary function as a com- mon-law judge, the Chancellor began at an early day to exercise the extraordinary jurisdiction — that of Grace — by delegation either from the King or from the Select Council. The commencement of this practice cannot be fixed with any precision. It is probable that the judicial power of the Chancellor as a law judge, and his conse- quent familiarity with the laws of the realm, and expe- rience in adjudicating, were the reasons why, when any case came before the King which appealed to his judicial prerogative, and which for any cause could not be prop- erly examined by the council, such case was naturally referred either by the Crown or by the council to the Chancellor for his sole decision. Wliatever may have been the motives, it is certain that the Chancellor's ex- traordinary equitable jurisdiction commenced in this manner. At first it was a tentative proceeding, governed by no rule, the reference being sometimes to the Chan- cellor alone, sometimes to him in connection with another official, and even occasionally to another official without the Chancellor. In the reign of Edward I., such refer- ences of cases coming before the King and council to the Chancellor, either alone or in connection with others, were very common, although the practice of selecting him alone had not yet become fixed. § 34. The practice of delegating the cases which came before the prerogative judicial function of the Crown and its council to the Chancellor, for his sole decision, having once commenced, it rapidly grew, until it became the com- mon mode of dealing with such controversies. The fact that the attention of the King and of his high officials was constantly engaged in matters of state administration ferred to this his common-law, and not to his equitable, jurisdiction. He was, in fact, during this early period, and before the equitable jurisdiction became established, a common-laiv judge. § 35 EQUITY JUEISPKUDENCE. 3b rendered this method natural and even necessary. In the reign of Edward III., the Court of Chancery was in full operation as the ordinary tribunal for the decision of causes which required an exercise of the prerogative juris- diction, and the granting of special remedies which the common-law courts could not or would not give. Edward III. established this jurisdiction, which hitherto had been merely permissive, upon a legal and permanent founda- tion. In the twenty-second year of his reign, by a general writ, he ordered that all such matters as were of Grace should be referred to and dispatched by the Chancellor, or by the Keeper of the Privy Seal. The Court of Chancery, as a regular tribunal for the administering of equitable relief and extraordinary remedies, is usually spoken of as dating from this decree of King Edward III. ; but it is certain that the royal action was merely confirmatory of a process which had gone on through many preceding years. § 35. The delegation made by this order of the King conferred a general authority to give relief in all matters, of what nature soever, requiring the exercise of the pre- rogative of Grace. This authority differed wholly from that upon which the jurisdiction of the law courts was based. These latter tribunals acquired jurisdiction in each case which came before them by virtue of a delega- tion from the Crown, contained in the particular writ on which the case was founded, and a writ for that purpose could only be issued in cases provided for by the positive rules of the common law. This was one of the funda- mental distinctions between the jurisdiction of the English common-law courts, under their ancient organization, and that of the English Court of Chancery. ^ The principles § 35, 1 This distinction has never existed in the United States. The highest courts of law and of equity, both state and national, derive their jurisdiction either from the constitutions or from the statutes. There is no such thing as a delegation of authority from the executive or the 39. OEIGIN OF EQUITY JURISPRUDENCE. § 36 upon whicli the Chancellor was to base his decision in con- troversies coming within the extraordinary jurisdiction thus conferred upon him were Honesty, Equity, and Con- science. 2 The usual mode of instituting suits in chancery became, from this time, that by bill or petition, without any writ issued on behalf of the plaintiff. § 36. Development of the Equitable Jurisdiction. — Having thus shown the historical origin of the chancery as a court distinct from the common-law tribunals, I shall now describe the growth of the equitable jurisdiction until it became settled upon the certain basis of principles which has continued without substantial change to the present time. In the earliest periods the jurisdiction was ill de- fined, and was in some respects even much more extensive than it afterwards became when the relations between the equity and the common-law tribunals were finally adjusted. This was chiefly due to the troublous times, the distuii^ed condition of the country, while violence and oppression ever^^where prevailed, and the ordinary courts could give but little protection to the poor and the weak; when the powerful landowners were constantly invading the rights of their inferiors and overawing the local magistrates. In the reign of Richard II. the Chancellor actually exercised some criminal jurisdiction to repress violence, and re- strain the lawlessness of the great against the poor and helpless. He also entertained suits concerning land, for legislature to these courts; for the authority of the courts and of the other branches of the government is directly derived from the same source, — the organic body politic composing the state or the nation. § 35, 2 The following ease illustrates the kind of matters brought be- fore the King and referred to the Chancellor : Lady Audley, without join- ing her husband, sued her father-in-law to obtain a specific performance of certain covenants in her favor in the deed of settlement made on her marriage. Nothing could be more opposed to common-law doctrines. This was in 35 Edward III., and it shows that two most important heads of equity jurisprudence were then known, — the protection of the wife's separate interests, and specific performance of contracts. See Sir F. Pal- grave's History of the Council, pp. 64, 67. § 37 EQUITY JURISPRUDENCE. 40 the recovery of possession or the establishment of title, and even actions of trespass, when there had been dispos- session with great violence. ^ A strong opposition nat- urally arose to these alleged usurpations by the Chancel- lors; but they persevered as long as was necessary, and were supported by the King and council. § 37. There were other reasons, inhering in the nature of its procedure and extent of its remedial functions, which operated to extend the authority and increase the business of the chancery court. It possessed and exercised the power, which belonged to no common-law court, of ascer- taining the facts in contested cases by an examination of the parties under oath, — the ''probing their consciences,'^ • — a method which gave it an enormous advantage in the discovery of truth, and which has only within our own times been extended to all other tribunals. Again, the Chancellor was able to grant the remedy of prevention, which was wholly beyond the capacity of the law courts; and he seems to have used this kind of relief with great freedom, unrestrained by the rules which have since been settled with respect to the injunction. As the business of the court increased and became regular and constant, the practice was established in the reign of Eichard II. of addressing the suitor's bills or petitions directly to the Chancellor, and not to the King or his council. During the same reign a statute was passed by Parliament for the purpose of regulating the business of the court and re- straining its action, which enacted that when persons were compelled to appear before the council or the chancery on suggestions found to be untrue, the Chancellor should have power to award damages against the complainant, in his § 36, 1 The instances of the kind mentioned in the text are probably all referable to the notion, which seems to have been entertained by the early chancellors, that one important head of their jurisdiction, founded upon the principle of conscience, was the protection of the poor, weak, helpless, and oppressed against the rich and powerful. This early notion has left some traces in the subsequent equity jurisprudence. 4:1 OEIGIN OF EQUITY JUEISPRUDENCE. § 38 discretion.^ This statute was a solemn recognition by Parliament of the court as a distinct and permanent tri- bunal, having a separate jurisdiction and its own modes of procedure and of granting relief; and the enactment was an important event in the legal history of the chancery. § 38. In the reign of Richard II., Uses first came dis- tinctly into notice and were brought under judicial cog- nizance. This species of interest in land was utterly un- known to the common law, and foreign to the feudal notions ; it was therefore ignored by the law courts, and fell under the exclusive control of chancery. As uses were de- rived, with much modification, from the Eoman law, the doctrines of that jurisprudence were naturally resorted to in deciding controversies respecting them, and in settling the rules for their government. The action of the law judges in banishing the Roman law from their courts, which has already been described, ^ also operated very powerfully to throw the consideration of these matters into the chancery, and greatly augmented and strengthened its authority. No one subject has contributed so much to enlarge and perfect the jurisdiction of the Court of Chancery as the uses thus surrendered to its exclusive cog- nizance. The principles which underlie them and the trusts which succeeded them have been extended to all de- partments of equity, and have been more efficient than any other cause in building up an harmonious system of equi- table jurisprudence in conformity with right and justice. These flexible principles have been applied to almost every relation of life atfecting property rights, and have been molded so as to meet the exigencies of the infinite variety of circumstances which arise from modern civilization. They have even reacted upon the common law, and have been recognized by the law judges in their settlement of the rules which govern the rights and obligations grow- ing out of contract. § 37, 1 17 Rich. 11., chap. 6. g 38, 1 See ante, § 20. § 39 EQUITY JURISPRUDENCE. 42 § 39. In the reigns of Henry IV. and Henry V., the Com- mons, from time to time, complained that the Court of Chancery was usurping powers and invading the domain of the common-law judges. It is a very remarkable fact, however, that this opposition never went to the extent of denouncing the equity jurisdiction as wholly unnecessary; it was always conceded that the law courts could furnish no adequate remedy for certain classes of wrongs, and that a separate tribunal was therefore necessary. As the re- sult of these complaints, statutes were passed which for- bade the Chancellor from interfering in a few specified instances of legal cognizance, but did not abridge his gen- eral jurisdiction. In the reign of Edward IV. the Court of Chancery was in full operation; the mode of procedure by bill filed by the complainant, and a subpoena issued thereon to the defendant, was settled; and the principles of its equitable jurisdiction were ascertained and estab- lished upon the basis and with the limitations which have continued to the present time. No more opposition was made to the court by the Commons, although the law judges from time to time, until as late as the reign of James I., still denied the power of the Chancellor to interfere with matters pending before their own courts, and especially disputed his authority to restrain the proceedings in an action at law, by means of his injunction. This contro- versy between the law and the equity courts, with respect to the line which separates their jurisdictions, has in fact never been completeh^ settled; and perhaps it must neces- sarily continue until the two jurisdictions are blended into one, or at least are administered by the same judges in the same proceeding. ^ § 39, 1 Wherever the distinctions between suits in equity and actions at law have been abolished, and equitable and legal rights may be enforced, and equitable and legal remedies may be obtained, in the same proceeding, we might suppose this contest would necessarily have disappeared, and it necessarily would have disappeared if the courts had carried out the plain intent of the legislation; unfortunately, however, in some of the states where this legislation has been adopted, the distinction between the 43 ORIGIN OF EQUITY JURISPRUDENCE. § 40 § 40. Abolition of the Court in England and in Many American States. — The court of equity, having existed as a separate tribunal for so many centuries, has at length disappeared in Great Britain and in most of the American states, and the reforming tendency of the present age is strongly towards an obliteration of the lines which have hitherto divided the two jurisdictions. By the recent legislation of England and of many of the states in this country, the separate tribunals of law and of equity have been abolished ; the two jurisdictions have been so far com- bined that both are administered by the same court and judge; legal and equitable rights are enforced and legal and equitable remedies are granted in one and the same action ; and the distinctions which hitherto existed between the two modes of procedure are as far as possible abro- gated, one kind of action being established for all judicial controversies. 1 legal and equitable jurisdictions is kept up as sharply as though there were the separate tribunals, and the different systems of procedure. § 40, 1 The English Judicature Act of 1873, already quoted, after unit- ing all the higher tribunals into one Supreme Court of Judicature, enacts that "in every civil cause or matter, law and equity shall be concurrently administered" by this court according to certain general rules; and that generally in all matters not particularly mentioned in other provisions of the act, in which there is any conflict or variance between the rules of equity and the rules of the common law, with reference to the same mat- ter, the rules of equity shall prevail: 36 & 37 Vict., chap. 66, §§ 24, 25. This great reform, which was inaugurated by New York in 1848, has been adopted by the states of Ohio, Kentucky, Indiana, Wisconsin, Iowa, Minnesota, Missouri, Kansas, Nebraska, Nevada, California, Oregon, North Carolina, South Carolina, Arkansas, Connecticut, Colorado, and by the territories of Washington, Montana, Idaho, Dakota, Wyoming, Arizona, Utah. The form of legislation which has generally been adopted is substantially the following: "The distinction between actions of law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and there shall be in this state hereafter but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action." In two or three of the states a slight external distinction between legal and equitable actions is still preserved. Their codes of procedure contain § 41 EQUITY JURISPRUDENCE. 44 § 41. Equity Jurisdiction in Other American States. — In the national courts of the United States, and in most of the states which have not adopted the reformed procedure, the two departments of law and equity are still maintained distinct in their rules, in their procedure, and in their remedies; but the jurisdiction to administer both systems the following provision : "All forms of action are abolished ; but the pro- ceedings in a civil action may be of two kinds, 'ordinary' or 'equitable.' The plaintiff may prosecute his action by equitable proceedings in all cases where courts of equity had jurisdiction, and must so proceed in all cases where such jurisdiction was exclusive. In all other cases the plain- tiff must pi'osecute his action by ordinary proceedings. An error of the plaintiff as to the kind of proceedings adopted shall not cause the abate- ment or dismissal of the action, but merely a change into the proper pro- ceedings, and a transfer of the action to the proper docket. The provi- sions of this code concerning the prosecution of a civil action apply to both kinds of proceedings, whether ordinary or equitable." As one court has jurisdiction over both kinds of proceedings, it is plain that the dis- tinction here preserved is wholly superficial; it really goes no further than the designation to be put at the commencement of the plaintiff's pleading, and the placing the cause on the proper docket or trial list of the court. In 1879 Connecticut adopted a Practice Act, which contains the fundamental and essential features of the reformed system of pro- cedure, although it rather resembles the English Judicature Act than the Codes of Procedure in the various states, since it only enacts these funda- mental and essential principles, and leaves the details of practice to be regulated by rules established by the courts. It provides, in section 1, that there "shall be but one form of civil action" ; and in section 6 ; "All courts which are vested with jurisdiction, both at law and in equity, may hereafter, to the full extent of their respective jurisdictions, administer legal and equitable rights, and apply legal and equitable remedies, in favor of either party, in one and the same suit, so that legal and equi- table rights of the parties may be enforced and protected in one action; provided, that wherever there is any variance between the rules of equity and the rules of the common law, in reference to the same matter, the rules of equity shall prevail." It will be noticed that this last clause is the same in effect as one contained in the English Judicature Act, and this alone gives the Connecticut system a supei'iority over that prevailing in the other American states. It is remarkable that the codes of all the other states have not been amended hy the introduction of this most admirable provision. Equitable and legal defenses and counterclaims are also permitted. 45 OEIGIN OF EQUITY JURISPRUDENCE. § 42 is possessed and exercised by the same tribunal, which in one case acts as a court of law, and in the other as a court of equity. The organization of the judiciary differs widely in the states of this class, and no attempt need be made to describe it. The procedure at law is based, although in most instances with extensive modifications, upon the old common-law method, and retains in whole or in part the ancient forms of action. The equity procedure is the same in its essential principles with that which long prevailed in the English Court of Chancery, but is much simplified in its details and rules. ^ § 42. In a very few of the states the policy of separa- tion is still maintained. Law and equity are not only dis- tinct departments, but they are administered by different tribunals, substantially according to the system, both in respect to jurisdiction and procedure, which existed in England prior to the recent legislation. There is a court of general original jurisdiction at law, and another court of equity, consisting of one or more chancellors, and the two are entirely distinct in the persons of the judges, and in the judicial functions which they possess. Even in these states, however, there is generally but one appellate tribunal of last resort, which reviews on error the judg- ments of the law courts, and on appeal the decrees of the Chancellor.! § 41, 1 This mode of judicial organization and of maintaining the two jurisdictions with one tribunal has been adopted by the United States for the national judiciai-y, and by the following States : Connecticut, Florida, Georgia, Illinois, Maine, Maryland, Massachusetts, Michigan, New Hamp- shire, Pennsylvania, Rhode Island, Texas, Vermont, Virginia, West Vir- ginia. Connecticut no longer belongs to this class. By a statute of 1879 the reformed procedure was, in its essential features, adopted : See ante, note to § 40. § 42, 1 This system exists in Alabama, Delaware, Mississippi, New Jersey, Tennessee. §43, §§44,45. §§46,47, §§ 48-54. §§ 55-58. §§ 59-61. §62. §§ 63-67. 43 EQUITY JURISPBUDENCB. 46 SECTION n. THE NATURE OF EQUITY. ANALYSIS. Importance of a correct notion of equity. Various meanings given to the word. True meaning as a department of our jurisprudence. Theories of the early chancellors concerning equity as both supply- ing and correcting the common law. Sources from which the early chancellors took their doctrines; their notions of "conscience" as a ground of their authority. Equity finally established upon a basis of settled principles. How the equitable jurisdiction is determined at the present day. Eecapitulation : Nature of equity stated in four propositions. § 43. Importance of a Correct Notion of Equity. — I pur- pose in this section to ascertain the nature of equity as it now exists in one of the great departments into which the law of the United States and of England is divided, and to fix its exact relations with the other department, which, by a most confusing use of terms, is called the "Law" or the "Common Law." This inquiry is not purely theo- retical; it is, on the contrarj^, in the highest degree prac- tical. An accurate conception of equity is indispensable to the due administration of justice. If a certain theory of its nature, which now prevails to some extent, should become universal, it would soon destroy all sense of cer- tainty and security which the citizen has, and should have, in respect to the existence and maintenance of his juridical rights. Since the combination of legal and equitable reme- dies in one judicial proceeding which has been effected in many of the states, the notion seems to have been revived, somewhat vague and undefined perhaps, but still widely diffused among the legal profession, that equity is noth- ing more or less than the power possessed by judges — and even the duty resting upon them — to decide every case according to a high standard of morality and abstract right; that is, the power and duty of the judge to do jus- 47 THE NATURE OF EQUITY. § 44 tice to the individual parties in each case. This concep- tion of equity was known to the Roman jurists, and was described by the phrase, Arbitrium honi viri, which may be freely translated as the decision upon the facts and circumstances of a case which would be made by a man of intelligence and of high moral principle; and it was un- doubtedly the theory in respect to their own functions, commonly adopted and acted upon by the ecclesiastical chancellors during the earliest periods of the English Court of Chancery. It needs no argument to show that if this notion should become universally accepted as the true definition of equity, every decision would be a virtual arbi- tration, and all certainty in legal rules and security of legal rights would be lost.* § 44. Various Meanings Given to the Word. — ^Before proceeding to examine the nature of English and American equity, as above stated, I shall briefly mention some of the meanings which have been given to the word, taken in its general sense, and not as designating a particular depart- ment of the municipal law. The original or root idea of the word, as first used by the Roman jurists, universality, and thence impartiality, has already been explained. From this fundamental notion, equity has come to be em- ployed with various special significations. It has been applied in the interpretation of statutes, when a legislative enactment is said to be interpreted equitably; or, as the expression often is, according to the equity of the statute. This takes place when the provisions of a statute, being perfectly clear, do not in terms embrace a case which, in the opinion of the judge, would have been embraced if the legislator had carried out his general desig-n. The judge, supplying the defective work of the legislator, interprets the statute extensively, or according to its equity, and treats it as though it actually did include the particular § 43, (a) The text is quoted in L. E. A. 1917E, 633, 162 N. W. 399, Wade V. Major, 36 N. D. 331, dissenting opinion. § 45 EQUITY JURISPRUDENCE. 48 case. The word was sometimes used in this sense by the Roman jurists, when applied to modes of interpretation, and also by the earlier English text-writers and judges; but is not often employed with such a meaning by writers of the present day. § 45. Another signification sometimes given to equity is that of judicial impartiality ; the administration of the law according to its true spirit and import, uninfluenced by any extrinsic motives or circumstances ; the application of the law to particular cases, in conformity with the special intention or the general design of the legislator.^ A third meaning makes equity synonjTiious with natural law as that term is used by modern writers, or morality; so that it practically becomes the moral standard to which all law should conform. It is in this sense that the epithet ''equitable" is constantly used, even at the present day, by judges and text-writers, in order to describe certain doctrines and rules which, it is supposed, will tend to pro- mote justice and right in the relations of mankind, or be- tween the litigant parties in a particular case.^ The only other signification which I shall mention does not greatly differ from the one last given. In that use of the term, equity is the unchangeable system of moral principles to which the law does or should conform; but in this use it rather describes the power belonging to the judge — a power which must, of course, be exercised according to § 45, 1 In accordance with this conception, the following definitions have been given : "The application of the statute law to a given case, agreeably to the specific intention or the general design of the legislator." "^quitas nihil est quam benigna et humana juris scripti interpretation non ex verbis, sed a mente legislatoris facta." (Equity is nothing but the liberal and humane interpretation of the written law, made, not according to its words, but in conformity with the intent of the legislator.) "Benignius leges interpretandoe sunt, quo voluntas earum conservaretur." (Positive laws ought to be interpreted liberally, so that their design will be preserved.) § 45, 2 It is with this meaning of the word that French jurists have said : "L'equite est V esprit de non lois"; and a Roman jurist said: ''JSquitas est Iwnestas." 49 THE NATURE OF EQUITY. § 46 liis own standard of right — to decide the cases before him in accordance with those principles of morality, and so us to promote justice between suitors, even though in thus deciding some rule of positive law should be violated or at least disregarded. This conception of equity regards it, not as a system of juridical principles and rules based upon morality, right, and justice, but rather as a special function or authority of the courts to dispense with fixed legal rules, to limit their generality, or to supplement their defects in particular cases, not in obedience to any higher and more comprehensive doctrines of the same positive iiational jurisprudence, but in obedience to the dictates of natural right, or morality, or conscience. ^ § 46. True Meaning as a Department of Our Jurispru- dence. — I am now prepared to examine, and if possible de- termine, the true nature of equity considered as an estab- lished branch of our American as well as of the English jurisprudence. We are met at the very outset by numer- ous definitions and descriptions taken from old writers and judges of great ability and high authority, many of which are entirely incorrect and misleading, so far at least as they apply to the system which now exists, and has existed for several generations. These definitions attribute to equity an unbounded discretion, and a power over the law unrestrained by any rule but the conscience of the Chancellor, wholly incompatible with any certainty or security of private right. For the purpose of illus- trating these loose and inaccurate -conceptions, I have §45, 3 This theory was known to the Roman juridical writers; it was the notion constantly maintained by Cicero, who says : "^quitas est laxi- mentum juris," and traces of it are found throughout the Digest. It was universally adopted by the clerical chancellors in the earliest stages of the chancery jurisdiction; and the English equity commenced, and for a con- siderable period continued, its growth as a direct result of this conception : See 2 Austin on Jurisprudence, pp. 272-280. 1—4 § 46 EQUITY JUKISPBUDENCE. 50 placed in the foot-note a number of extracts taken from the earlier writers.^ §46, 1 In the Doctor and Student (Dial. 1, cbap. 16), equity is thus described: "In some cases it is necessary to leave the words of the law, and to follow Avhat 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. . . . Efjuity is righteousness that considereth all the particular circumstances of the deed, which is also tempered with the sweetness of mercy." In Grounds and Rudiments (pp. 5, 6) it is said: "As summum jus summa est injuria since it cannot consider circumstances, and as equity takes in all the circum- stances of the case, and judges of the whole matter according to good' conscience, this shows both the use and excellency of equity above any pre- scribed law. . . . Equity is that which is commonly called equal, just, and good, and is a mitigation and moderation of the common law in some cir- cumstances, either of the matter, person, or time; and often it dispenseth with the law itself. . . . The matters of which equity holdeth cognizance in its absolute 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 affairs con- versant 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 Praetorise 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 suppljdng 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, accompanying the law of nature in its general refinements, enforces every natural duty that is not provided for at the common law. ... A court of equity boldlj^ undertakes to correct or mitigate the rigor, and what in a proper sense may be termed the injus- tice, of the common law." In the well-known treatise called Fonblanque 51 THE NATUEE OF EQUITY. § 47 § 47. It is very certain that no court of chancery juris- diction would at the present day consciously and inten- tionally attempt to correct the rigor of the law or to supf)ly its defects, by deciding contrary to its settled rules, in any manner, to any extent, or under any circumstances beyond the already settled principles of equity jurisprudence.* on Equity, the author says (b. 1, chap. 1, § 3) : "So there will be a neces- sity 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 general 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. But if the law hath determined a matter with all its circumstances, equity cannot intermeddle." The same large view of equity has sometimes been taken by the earlier judges, but not to any 'considerable extent since the Reforma- tion. The following example will suffice : In Dudley v. Dudley, Prec. 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 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 contrivances against the justice of the law. Equity, thei-efore, does not destroy the law, nor create it, but assists it." I shall end these citations by a quotation from Chancellor D'Aguesseau, the great French jurist (GEuvres, vol. 1, p. 138) : "Premier objet du legislateur, dopositaire de son esprit, compagne inseperable de la loi, I'equite ne pent jamais etre contraire a la loi meme. Tout ce que blesse cette equite, veritable source de toutes les lois, ne resiste pas moins a la justice." § 47, (a) The text is quoted in in Sell v. West, 125 Mo. 621, 46 Am. Harper v. Clayton, 84 Md. 356, 57 St. Eep. 508, 28 S. W. 969; also in Am. St. Eep. 407, 35 L. K. A. 211, Wade v. Major, 36 N. D. 331, L. R. A. 35 Atl. 1083; Henderson v. Hall, 134 1917E, 633, 162 N. W. 399, dissenting Ala. 455, 32 South. 840; and cited oinuiou. § 48 EQUITY JUEISPRUDENCE. 52 Those principles and doctrines may unquestionably be ex- tended to new facts and circumstances as they arise, which are analogous to facts and circumstances that have already been the subject-matter of judicial decision, but this pro- cess of growth is also carried on in exactly the same manner and to the same extent by the courts of law. Nor would a chancellor at the present day assume to decide the facts of a controversy according to his own standard of right and justice, independently of fixed rules, — he would not attempt to exercise the arhitrium honi viri; on the contrary, he is governed in his judicial functions by doctrines and rules embodied in precedents, and does not in this respect possess any greater liberty than the law judges. § 48. Theories of the Early Chancellors Concernini^ Equity. — It is nevertheless true that there was much in the proceedings of the early clerical and some of the lay chancellors which furnished a ground for the theories given in the foregoing note. In the commencement of the jurisdiction, and down to a time when the principles of equity as they now exist had become established, every decision made by chancery, every equitable doctrine which it declared, every equitable rule which it announced, was of necessity an innovation to a greater or less extent upon the then existing common law, sometimes supplying de- fects both with respect to primary rights and to remedies which the law did not recognize, and sometimes invading, disregarding, and overruling the law by enforcing rights or conferring remedies with respect to which the law was not silent, but which it actually denied and refused. The very growth of equity, as long as it was in its formative period, was from its essential nature an antagonism to the common law, either by way of adding doctrines and rules which the law simply did not contain, or by way of creating doctrines and rules contradictory to those which the law had settled and would have applied to the same 53 THE NATURE OF EQUITY. § 49 facts and circumstances. It would be a downright absurd- ity, a flat contradiction to the plainest teachings of his- tory, to deny that the process of building up the system of equity involved and required on the part of the chan- cellors an invasion, disregard, and even open violation of many established rules of the common law; in no other way could the system of equity jurisprudence have been commenced and continued so as to arrive at its present proportions.^ § 49. Nor can it be denied that the early clerical and even lay chancellors, in their first processes of innovating upon the law, and laying the foundations of equity, were constantly appealing to and governed by the eternal prin- ciples of absolute right, of a lofty Christian morality; that in these principles they sought and found the mate- rials for their decisions ; that they were ever guided in their work by Conscience, not by what has since been aptly termed the civil or judicial conscience of the court, but by their own individual consciences, by their moral sense apprehending what is right and wrong, by their own con- ceptions of bona fides. The very ground of the delegated authority required them to do so, and the function which they possessed and exercised was literally the arbitrium boni viri. In this manner the first precedents were made, and undoubtedly for a considerable space of time the de- cisions in chancery varied and fluctuated according to the personal capacity and high sense of right and justice pos- sessed by individual chancellors. In the lapse of time, however, the precedents had multiplied, and from the uni- versal conservative tendency of courts to be controlled by what has been already decided, a system of doctrines had developed and assumed a comprehensive shape; and § 48, (a) The text is quoted in following paragraphs are cited, to Eoberson v. Eoehester Folding Box the effect that modern equity is a Co., 171 N. Y. 538, 546, 89 Am. St. system of settled rules, in McElroy Eep. 828, 59 L. R. A. 478, 64 N. E. v. Mastcrson (Miss.), 156 Fed. 36, 84 442, by Parker, C. J. This and the C. C. A. 202. § 50 EQUITY JURISPRUDENCE. 54 finally, when it Lad attained a reasonable completeness with respect to fundamental principles and general rules, this accumulation became the storehouse whence the chan- cellors obtained the material for their decisions, and both guided and restrained their judicial action. Wlien this time arrived, all "assumption that the Chancellor was to be governed by his own standard and conception of nat- ural justice disappeared from the court of equity, and individual conscience was no longer the motive power in that tribunal; The accuracy of this general account will appear from a brief review of what the early chancellors actually did during the formative period of their jurisdic- tion, and of the principles which they adopted in the prose- cution of their reformatory work. § 50. In the original delegation of general authority by the Crown to the Chancellor, over matters falling under the King's judicial prerogative of grace, such authority was to be exercised according to Conscience, Equity, Good Faith, and Honesty. It was undoubtedly a maxim, even in the earliest times, that the equitable jurisdiction of chancery only extended to such matters as ivere not reme- diable by the common law. At the same time great lati- tude was used in determining what matters were not thus remediable. The chancellors therefore exercised a juris- diction which was supplementary to that of the law courts, and to this there was never any real opposition. At the same time they exercised a jurisdiction which was correc- tive of the law, and this was undoubtedly the most impor- tant part of their functions. It is absolutely certain from all the existing records, and from the result itself of their work, that they did not refrain from deciding any par- ticular case, according to their views of equity and good conscience, merely because the doctrine which they fol- lowed or established in making the decision was inconsis- tent with the rule of law applicable to the same facts, nor because the law had deliberately and intentionally refused 55 THE NATUliE OF EQUITY. § 51 to acknowledge the existence of a primary right, or to give a remedy under those facts and circumstances.^ * That this corrective authority was possessed by the chancellors, and freely exercised by them in the periods of which I am speaking, is recognized by the ancient writers. ^ § 51. How far the early chancellors went in recognizing and upholding primary rights and granting remedies, which were not only overlooked, but were expressly denied, refused, and prohibited by positive and well-settled rules of the common law, is seen from a brief summary of a few instances in which such equitable doctrines were estab- lished in contradiction to legal dogmas. One executor or joint tenant might sue his coexecutor or cotenant in the Court of Chancery in respect to their joint interests, although forbidden to do so by the law.^ When an obligee, by reason of loss or other accident, could not pro- duce the bond, he was prohibited by an express rule of the law from maintaining an action upon it; but the Court of Chancery, upon proof of such facts, would grant him full relief, by enforcing the obligation. Conversely, if an obligor or other debtor upon a sealed instrument had paid § 50, 1 Thus in a case before Chancellor Morton, Archbishop of Canter- burj^ in the reign of Henry VII., it was argued that he should grant no relief, because upon the facts in the case the common law admitted no right and gave no remedy. The Chancellor replied to this argument: "It is so in all cases where there is no remedy at the common law and no right, and yet a good remedy in equity." "Et per ceo nul remedy per comen ley, ergo ne per conscievs, issit est in tout cases nul remedy per comen ley ne nid droit et imcore bon remedy per consciens" : Yeai*-Book, 7 Hen. VII., fol. 12. § 50, 2 Thus in Doctor and Student, which was written in the early part of the reign of Henry VIII., it is stated: "Conscience (i. e., equity) never resisteth the law nor addeth to it, but only when the law is directly in itself against the law of God or law of reason." § 50, (a) The text is cited, to this § 51, (a) The text is cited in effect, in Fagan v. Troutman, 25 Peterson v. Vanderburgh, 77 Minn. Colo. App. 251, 138 Pac. 442, dissent- 218, 77 Am. St. Rep. 671, 79 N. W. ing opinion. 828. § 52 EQUITY JUEISPRUDENCE. 56 the debt in full, but had neglected to take a release or a surrender of the bond, the law held him still liable, and gave him no defense in an action brought to recover pay- ment of the debt a second time ; but chancery admitted and enforced this conscientious defense by restraining the creditor from prosecuting his legal action. Again, the Court of Chancery, acting upon its equitable principles, re- lieved parties in many instances from forfeitures which had been clearly incurred according to express rules of the law, and which courts of law still enforced according to the strictest letter of the provisions from which they re- sulted. Notwithstanding statutes wliich prohibited the Court of Chancery from reviewing judgments rendered by the courts of law, the Chancellor gave relief, where it was demanded by equity and good conscience, against, the operation of such judgments. He avoided the express prohibitory language of the statutes by not assuming to act directly upon the judgment itself, but upon the parties personally, by restraining the one who had recovered the judgment from taking or prosecuting any measures for its enforcement, and even by compelling him to restore the property which he had acquired by its means. There is no higher example of the equity jurisdiction than this, nor one which more directly interferes with the administration of the law, since the legal right controverted and over- thrown by chancery no longer existed in the form of an abstract rule, but had been established in a concrete form as the right existing between the parties. § 52. In another class of cases, notwithstanding the general maxim that chancery should only have jurisdiction of such matters as were not remediable by the common law, the Chancellor interfered, and extended his authority over facts and circumstances for which a legal remedy was pro- vided, and gave a ditferent and more efficient remedy wholly unknown to the common law. The equitable rem- edy of specific performance of contracts, although the law 57 THE NATURE OF EQUITY. § 52 gave the remedy of damages, is an illustration of this class. The whole doctrine of equity concerning uses, and afterwards concerning trusts, exhibits in the clearest light the action of the Chancellor, not only in supplementing but in evading and contradicting legal rules of the most positive and mandatory character. An estate was recog- nized and treated as the real, essential interest, which the law ignored; an owner was protected, and his rights of property were enforced, whom the law declared not to be the owner; and as a consequence, the feudal dogmas, the feudal incidents of landed proprietorship, and the right of the feudal lords, all of which the law upheld, were over- ruled and destroyed. Still another most remarkable illus- tration of the extent and manner in which the Court of Chancery invaded the rules and contradicted the policy of the common law was exhibited by its doctrine concerning the separate estate of married women, and their power to deal therewith as though they were unmarried. Nothing was more diametrically opposed to the principles of the ancient common law than this capacity to be a separate proprietor conferred upon the wife ; ^ and no equitable doctrine perhaps interfered with a greater number of legal rules concerning the status of marriage, and the proprie- tary rights of the husband which it created. The fore- going instances, which have been selected merely as examples, show beyond all possible doubt that the juris- diction of equity, while passing through its period of growth, was constantly exercised in relaxing, contradict- ing, and defeating legal rules which were deemed too harsh, unjust, and unconscientious in their practical opera- tion, as well as in supplying omissions, and granting reme- dies which the law courts were unable to administer. § 52, 1 This equitable doctrine not only interfered with the legal rules as to property : it contradicted one of the principles which the common law regarded as the foundation of society, — the unity of the family produced by the absolute headship of the husband. Fleta (b. iii., chap. 3) expressly states the doctrine that conveyance to a stranger for the benefit of a mar- ried woman is void as being against the policy of the law. § 53 EQUITY JUEISPRUDENCB. 58 § 53. While tlie early chancellors did much, they stopped very far short of consummating the work of re- form by extending it to the entire body of the common law. They left untouched, in full force and operation, a great number of legal rules which were certainly as harsh, un- just, and unconscientious as any of those which they did attack ; and their successors upon the chancery bench have never assumed to complete what they left unfinished. That task has since been accomplished, if at all, either by the legislature, or by the common-law courts themselves. Among these legal rules with which equity did not inter- fere, the following may be mentioned as illustrations : The doctrine by which the lands of a delator were generally exempted from all liability for his simple contract debts ;i the entire doctrine of collateral warranty, which was con- fessedly most unjust and harsh in its operation, and rest- ing wholly upon that kind of verbal reasoning which really had no meaning; 2 and in fact, most of the particular rules concerning real estate, which had been logically derived by the courts of law from the feudal institutions and cus- toms. There might, perhaps, have been a sufficient reason for leaving this latter mass of rules, as such, untouched. The introduction of uses, and afterwards of trusts, and the invention of the married woman's separate estate, with- drew the greater part of the land, so far as its actual en- joyment and control were concerned, from the operation of the common-law dogmas, and placed it under the do- main of equity; and as the Court of Chancery had an exclusive jurisdiction over these new species of estates, and treated them as the true ownerships, and in dealing with them disregarded the most objectionable of the feudal § 53, 13 Black Com., p. 430. § 53, 2 Lord Cowper said of this doctrine, in Earl of Bath v. Sherwin, 10 Mod. 4: "A collateral wai-ranty was certainly one of the harshest and most cruel parts of the eomimon law, because there was no such pretended recompense (as in the case of a lineal warranty) ; yet I do not find that the court (of chancery) ever gave satisfaction." 59 THE NATURE OF EQUITY. § 54 incidents, tlie cliancellors probably thought that these rules of the common law had been practically abrogated, or at least evaded en masse, and that there was therefore no necessity for any further attack upon them in detail. § 54. Sir William Blackstone, citing these and some other instances in which the Court of Chancery refrained from interfering with legal doctrines, and using them as the basis of his argument, goes to the extent of denying that equity has or ever had any power to correct the com- mon law or to abate its rigor.^ This is one example among many of Blackstone 's utter inability to comprehend the real spirit and workings of the English law. That equity did to a large extent interfere with and prevent the practical operation of legal rules, and did thus furnish to suitors a corrective of the harshness and injustice of the common law, history and the very existing system incontestably show; and that the chancellors, from motives of policy or otherwise, refrained from exercising their reformatory function in certain instances, is not, in the face of the his- § 54, 13 Blark. Com., p. 430. His lang^iage is : "It is said that it is the business of a court of equity in England to abate the rigor of the common law. But no such power is contended for. Hard was the case of a bond creditor whose debtor devised away his real estate ; rigorous and unjust the rule which put the devisee in a better condition than the heir; yet a court of equity had no power to interfere. Hard is the common law still subsisting that land devised or descending to the heir should not be liable to simple contract debts of the ancestor or devisor, although the money was laid out in the purchase of 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 since ceased." The statement in this quotation, that "equity had no power to interfere," is merely a gratuitous assumption ; it certainly had the same power to interfere which it possessed and exercised in the case of an obligor who had paid the debt secured by his bond but had neglected to take a release. The most that can be truthfully said is, that "equity did not interfere." Blackstone, being purely a common-law lawyer, had little knowledge of equity, and his authority concerning its principles and juris- diction was never great. § 55 EQUITY JURISPRUDENCE. 60 torical facts, any arg-ument against the existence of tlie power. And even in the present condition of equity as an established department of the national jurisprudence, whenever a court determines the rights of parties by en- forcing an equitable doctrine which differs from and per- haps conflicts with the legal rule applicable to the same facts, such court does still, in very truth, exercise a cor- rective function, and wield an authority by which it relieves the rigor and often the injustice of the common law. It is undoubtedly true that a court of equity no longer inaug-u- rates new attacks upon legal doctrines, and confines itself to the application of principles already settled; but it is none the less true that a large part of the equity which is daily administered consists in doctrines which modify and contradict as well as supplement the rules of the law.2 § 55. Sources from Which the Early Chancellors Took Their Doctrines. — Having thus described the action of the early chancellors in the formative period of their juris- diction, I shall now endeavor to explain the motives by which they were governed, and the speculative sources whence they drew their principles and constructed their doctrines. They were directed in their original delega- tion of authority, and they assumed, in compliance with the direction, to proceed according to Equity and Conscience. There can be no doubt that they took their conception of equity from the general description of it given by the Roman jurists, understood and interpreted, hoiuever, ac- cording to their oivn theory of morality as a Divine laiu, and also borrowed many of the particular rules by which this equity was applied from the Roman law. As the great Roman jurists, disciples of the Stoic philosophy, conceived of jEquitas as synonymous with the *' natural law," or ''lex naturce/' the governing spirit or reason of the universe {ratio mundi), and regarded it as a constituent part of § 54, 2 See dictum of Sir George Jessel, M. R., in Johnson v. Crook, L. R. 12 Ch. Div. 639, 649, quoted jmst, in note to § 62. 61 THE XATUEE OF EQUITY. § 56 their national system, so the clerical chancellors, interpret- ing the language of the Roman jurists according to their own Christian philosophy, conceived of equity as synony- mous with the Divine law of morality, and therefore as compulsory upon human tribunals in their work of adjudi- cating upon the civil rights and regulating the personal conduct and relations of individuals. In this view, the authority and duty to decide according to equity (as dis- tinguished from conscience) seems to have embraced all those cases in which a party, without having committed any act which would be considered as contrary to conscience or good faith, might yet, by the rigorous provisions of the positive law, or by its silence, — the particular case not hav- ing been provided for at all, — have obtained an advantage which it was contrary to the principles of equity that he should be permitted to enforce or to retain. In such cases, the general principles of equity, which were found in the rules of morality, and were superior to all merely human law, were invoked. If the rigor of the law favored the position of a party who had committed any unconscientious act or breach of good faith, the one who had suffered thereby would be relieved under the head of ''conscience" as well as of ''equity." ^ § 56. The conception of "Conscience" as an element in determining jural relations was wholly due to the clerical courts. In its practical operation and results, however, conscience, considered as a source of the equity jurisdic- tion, was synonymous with the "good faith," ''bona fides," which forms so important a feature in the later and philo- sophical Roman jurisprudence. It embraced all those obli- gations which rested upon a person who, from the circum- stances in which he was placed towards another and the relations subsisting between them, was bound to exercise good faith in his conduct and dealings with that other per- son. Under the head of conscience as thus understood, a § 55, 1 See 1 Spence's Eq. Jur., pp. 412, 413. § 57 EQUITY JURISPRUDENCE. 62 wide field of jurisdiction was opened, wliicli included all departures from honesty and uprightness.^ j § 57. The question is naturally suggested, whether this ** conscience" was interpreted as the personal conscience of the individual chancellor, or whether it was a kind of judicial conscience, limited by and acting according to definite rules, and constituting a fixed and common stand- ard of right recognized and followed by all the equity judges. Beyond a doubt, during the infancy of the juris- diction, the former of these conceptions was the prevailing one, and each Chancellor was governed in his judicial work by his own notions of right, good faith, and obligation, by his own interpretation of the Divine code of morality. Even during the reigns of Henry VIII. and of Elizabeth, some of the chancellors seem to have taken a view of their authority which freed them from the restraints of prece- dent and even of principle, and enabled them to decide according to their private standard of right. It was this mistaken theory, so satisfying to an ambitious and self- reliant judge, but so dangerous to the equable and certain administration of justice, which provoked the sarcastic criticism of Selden so often quoted, and so often applied, in complete ignorance either of the subject or the occasion, to the equity jurisdiction in general. ^ After the period of infancy was passed, and an orderly system of equitable principles, doctrines, and rules began to be developed out of the increasing mass of precedents, this theory of a per- § 56, 1 See 1 Spence's Eq. Jur., p. 411. § 57, 1 Table Talk, tit. Equity : "Equity is a rogaiish thing. For law we have a measure, and know what we trust to. Equity is according to the conscience of him that is Chancellor; and as that is larger or naiTower, so is equity. 'T is all one as if they should make his foot the standard for the measure we call a Chancellor's foot. What an uncertain measure would this be! One Chancellor has a long foot, another a short foot, a third an indifferent foot. 'T is the same thing in the Chancellor's con- science." Mr. Spence very truly remarks: "Selden, better than any man living, perhaps, knew what equity really was." 6o THE NATURE OF EQUITY. § 58 sonal conscience was abandoned; and tlie ''conscience" which is an element of the equitable jurisdiction came to be regarded, and has so continued to the present day, as a metaphorical term, designating the common standard of civil right and expediency combined, based upon gen- eral principles and limited by established doctrines, to which the court appeals, and by which it tests the conduct and rights of suitors, — a juridical and not a personal con- science.^- This theory was at length announced by Lord Nottingham as the one which regulated the equity jurisdic- tion: ''"With such a conscience as is only naturalis and in- terna, this court has nothing to do; the conscience by which I am to proceed is merely civilis and politica, and tied to certain measures. "^ §58. After "conscience" became thus defined as a common civil standard, it was practically the same as "equity"; the distinctions between them had disappeared, and both terms were and have since been used interchange- ably. From the time of Henry VI., precedents of decisions made in the Court of Chancery were recorded in the Year- Books, and special collections of them were made in the reigns of Elizabeth, James I., and Charles I. By the time of Charles I. the number of precedents had so accumulated, either in published or in private collections, or handed down traditionally, that they substantially contained the entire principles of equity, and the chancellors yielded almost wholly to their guidance. In fact, they sometimes fell into the mistake of refusing relief in a case plainly within the scope of established principles, because there was no precedent which exactly squared with the facts in controversy. § 57, 2 Cook V. Fountain, 3 Swanst. 585, 600 (1676). §57, (a) The text is quoted in N. E. 442, by Parker, C. J. This Eoberson v. Rochester Folding Box paragraph is cited in International Co., 171 N. Y. 538, 546, 89 Am. St. Paper Co. v. Bellows Falls Canal Co., Eep. 828, 832, 59 L. R. A. 478, G4 SS Vt. 93, 90 Atl. 943. § 59 EQUITY JURISPRUDENCE. 64 § 59. Equity Finally Established upon a Basis of Settled Principles. — The result of this review is very clear, and enables us to define with accuracy the general character of 'the English and American equity. After its growth had proceeded so far that its important principles were all de- veloped, equity became a system of positive jurisprudence, peculiar indeed, and differing from the common law, but founded upon and contained in the mass of cases already decided. The Chancellor was no longer influenced by his own conscience, or governed by his own interpretation of the Divine morality. He sought for the doctrines of equity as they had already been promulgated, and applied tliem to each case which came before him. No doubt (and this is a point of the highest importance) the system was, and is, much more elastic and capable of expansion and exten- sion to new cases than the common law. Its very central principles, its foundation upon the eternal verities of right and justice, its resting upon the truths of morality rather than upon arbitrary customs and rigid dogmas, necessarily gave it this character of flexibility, and permitted its doc- trines to be enlarged so as to embrace new cases as they constantly arose. It has, therefore, as an essential part of its nature, a capacity of orderly and regular growth, — a growth not arbitrary, according to the will of individual judges, but in the direction of its already settled principles. It is ever reaching out and expanding its doctrines so as to cover new facts and relations, but still without any break or change in the principles or doctrines themselves. It is certainly, therefore, a mistaken theory which is main- tained by many writers like Blackstone, and even by those of a later day and higher authority, and which represents the English and American equity as entirely an artificial system, embodied wholly in unyielding precedents, and incapable of further development. It is true that there can be no more capricious enlargement according to the will of individual chancellors; but the principles of right, justice, and morality, which were originally adopted, and 65 THE NATURE OF EQUITY. § 60 have ever since remained, as tlie central forces of equity, gave it a necessary and continuous power of orderly ex- pansion, which cannot be lost until these truths themselves are forgotten, and banished from the courts of chancery.^ * § 60. The general language of some writers, and par- ticularly of Blackstone, presents an erroneous theory as to the office of precedents in equity, and if followed, would check and abridge the beneficent operation of its jurisdic- § 09, 1 Tlie dootrine of the text was clearly stated by Lord Redesdale, in Bond v. Hopkins, 1 Sehoales & L. 413, 429 : "There are eertam prin- ciples on wliich courts of eqnity act, which are very well settled. The cases which occur are various, but they are decided on fixed principles. Coui'ts of equity have in this respect no more discretionary power than courts of common law. They decide new cases as they arise, by the principles on which former eases have been decided, and may thus illustrate or enlarge the operation of these principles, but the principles are as fixed and certain as the principles on which the courts of common law proceed." In Gee v. Pritchard, 2 Swanst. 402, 414, Lord Eldon states the same theory : "The doctrines of this court ought to be as well settled and made as uniform almost as those of the common law, laying down fixed principles, hut talcing care that they are to he applied according to the circumstances of each particular case." The old case of Fry v. Porter, 1 Mod. 300, 307 (22 Car. II.), exhibits the strange notions concerning equity then held by the common-law judges. On the hearing, Chief Justice Keylinge, Chief Jus- tice Vaughan, and Chief Baron Hale wei-e called in to assist. During the argument C. J. Keylinge cited an old case; at which C. J. Vaughan said : "I wonder to hear of citing precedents in matter of equity, for if there be equity in a case, that equity is a 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." To this Lord Keeper Bridgman replied: "Certainly, precedents ai'e 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 those w4io made them is much to be regarded. We shall suppose that they did it upon great consideration and weighing of the matter, and it would be veiy strange and very ill if we should disturb and set aside what has been the course for a long series of time and ages." § 59, (a) The text is cited in 251, 138 Pac. 442, dissenting opin- Fagan T. Troutman, 25 Colo. App. ion. 1—5 § 60 EQUITY JURISPRUDENCE. 66 tion. The true function of precedents is that of illustrat- ing principles ; they are examples of the manner and extent to which principles have been applied; they are the land- marks by which the court determines the course and direc- tion in which principles have been carried. But with all this guiding, limiting, and restraining efficacy of prior de- cisions, the Chancellor always has had, and always must have, a certain power and freedom of action, not possessed by the courts of law, of adapting the doctrines which he administers. He can extend those doctrines to new rela- tions, and shape his remedies to new circumstances, if the relations and circumstances come within the principles of equity, where a court of law in analogous cases would be powerless to give any relief. In fact, there is no limit to the various forms and kinds of specific remedy which he may grant, adapted to novel conditions of right and obli- gation, which are constantly arising from the movements of society.^ "While it must be admitted that the broad and fruitful principles of equity have been established, and can- not be changed by any judicial action, still it should never be forgotten that these principles, based as they are upon a Divine morality, possess an inherent vitality and a capa- city of expansion, so as ever to meet the wants of a pro- gressive civilization. Lord Hardwicke, who was, I think, the greatest of the English chancery judges, and who, far more than Lord Eldon was penetrated by the genius of equity, indicated the true theory in a letter to Lord Karnes : ''Some general rules there ought to be, for otherwise the great inconvenience of jus vaguni et incertum will follow. And yet the Praetor [Chancellor] must not be so absolutely and invariably bound by them as the judges are by the rules of the common law. For if he were so bound, the § 60, (a) This paragraph ia cited, boldt Savings Bank V: McCleverty, to the effect that equity may so mold 161 Cal. 285, 119 Pac. 82; and in and adjust its decree as to award Fagan v. Troutman, 25 Colo. App. substantial justice according to the 251, 138 Pac. 442, dissenting opinion, requirements of the case, in Hum- 67 THE NATURE OF EQUITY. § Gl consequence would follow that lie must sometimes pro- nounce decrees which would be materially unjust, since no rule can be equally just in the application to a whole class of cases that are far from being the same in every cir- cumstance.i § 61. I have thus far described the growth of equity, and the shape which it finally assumed in the English Mu- nicipal Law, and as it was thence borrowed by the Ameri- can states, with but little reference to judicial opinions. I have supplied this intentional omission by collecting in the foot-note a number of extracts in which eminent judges have expressed their conceptions of its nature. Some of these judges have attempted to place the subject upon a broad and secure foundation. While there is a general unanimity in their views, it is still impossible to reconcile all the judicial opinions, and some of them maintain a theory of the jurisdiction which is certainly too partial and restricted.^ § 60, 1 Parke's Histoi-y of Chancery, pp. 501, 506. Judge Story severely criticises this language, pronounces it very loosely said, and virtually repudiates it. But with all deference to Judge Story, these few sentences, although undoubtedly not written in a scientific form, contain the central truth of the system, the truth which must always be recognized and acted upon in the administration of equity. Lord Hardwicke does not deny the existence nor the necessity of general principles, — no other Chancellor was ever more governed in his judicial work by principles, — but he would guard against the theoi-y which locks these principles up in the already existing precedents, and limits their free application to facts, circum- stances, and relations similar to those which had been the subject-matter of former adjudications. In other words. Lord Hardwicke in this short passage states the same view which I had given in the text. Although equity is and long has been in eveiy sense of the word a system, and , although it is impossible that any new general principles should be added to it, yet the truth stands, and always must stand, that the final object of equity is to do right and justice. § 61, 1 In Cowper v. Cowper, 2 P. Wms. 720, 753, Sir Joseph Jekyl, M. R., defined the scope and powers of equity as follows: "The law is clear, and courts of equity ought to follow it in their judgments concerning titles to equitable estates; othenvise great uncertainty and confusion would § 62 EQUITY JURISPRUDENCE. 68 § 62. How the Equitable Jurisdiction is Detennined at the Present Day. — Although the jurisdiction of chancery was originally based in great measure upon the omissions of the common law, the injustice of many of its rules, and its inabilit}", from its modes of procedure, to grant the variety of remedies adequate to the wants of society and the demands of justice, yet since the equitable system has become fully established, and its principles settled, this origin of the jurisdiction is no longer regarded as furnish- ing the real criterion. The whole question by which the ensue. And though proceedings in equity are said to be secundum discre- tionem boni viri, yet when it is asked, Vir bonus est quis? the answer is, Qui consulta patrum, qui leges juraque servat. (Who is the good man? He who maintains the opinions of his predecessors, and the laws and decisions.) And it is said in Rook's Case, 5 Coke, 99b, 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 disci'etion, in some cases, follows the law implicitly ; in others, assists it and advances the remedy ; in others, again, it relieves against the abuse, or allays the rigor of it; but in no case does it contradict or overturn the grounds or principles thereof, as has been some- times ignorantly imputed to this court. That is a discretion ai*y power which neither this nor any other court, not even the highest, acting in a judicial capacity, is by the constitution entrusted with." This language was expressly adopted and approved by Sir Thomas Clarke, M. R., in Burgess v. Wheate, 1 W. Black. 123, 152. The general propositions at the beginning of this extract are undoubtedly correct; but it is strange that, in the face of the equitable doctrines concerning uses and trusts, or the separate estates of married women, or the enforcing of contracts void by the statute of frauds, or the relief anciently given to an obligor who had paid the debt without taking a release, and numerous other instances, some of which have been mentioned in the text, — it is strange, I say, in the face of all these facts, that an equity judge could lay down a proposition so palpably untrue as the one just quoted, that in no case does equity contradict or overturn the grounds and principles of the law; a gi-eat part of its doctrines being in direct contradiction to the rules of law governing the same circumstances at the time when these doctrines were first enunciated. Lord Hardwicke, who always looked at the reality, and not at mere conventional formulas, stated the true relation between equity and the law in a short but pregnant proposition. It 69 THE NATURE OF EQUITY. § 62 extent of the equity jurisdiction is practically determined is no longer, whether the case is omitted by the law, or the legal rule is unjust, or even the legal remedy is in- adequate, — although the latter inquiry is still sometimes made and treated as though it were controlling, — the ques- tion is, rather, whether the circumstances and relations presented by the particular case are fairly embraced within any of the settled principles and heads of jurisdiction which are generally acknowledged as constituting the being argued in a case before him that equity follows the law, JEquitas sequitur legem, he replied: "When the court finds the rules of the law right it will follow them ; but then it will likewise go bej'ond them" : Paget V. Gee, Ambl. App. 807, 810. In the ease of Manning v. Manning, 1 Johns. Ch. 530, Chancellor Kent explained his own position as an Amer- ican chancellor, and his conception of equity as a whole : "I take this occasion to observe that I consider myself bound by these 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 inno- vation and improvement; Via antiqua via est tuta. . . . This court ought to be as much bound as a court of law by a course of decisions applicable to the ease, and establishing a ri;le. As early as the time of Lord Keeper Bridgman, it was held that precedents were of authority (1 Mod. 307. See the citation ante, in the note under §59). 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 gi-eat seal, is a scientific system, being the result of the reason and the labors of learned men for a succession of ages. It contains the most enlarged 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 means endeavor 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 propositions here quoted are undoubtedly true, and yet the feeling can- not be avoided that they do not represent the entire truth. The character of Chancellor Kent's mind was eminently conservative; and this con- servative tendency has led him to suppress, or at least to refrain from expressing, the element of vitality and expansion which inheres in the system, and the power of the court in its fullness to enlarge the equitable ])rinciples, to extend them over new facts and relations, and to render them fruitful in the constant production of new rules. § 62 EQUITY JURISPRUDENCE. 70 department of equity.^^ Two results therefore follow: First, a court of equity will not, unless perhaps in some very exceptional case, assume jurisdiction over a contro- versy the facts of which do not bring it within some general principle or acknowledged head of the equitable jurispru- dence; and secondly, if the circumstances do bring the case within any of these principles or heads, a jurisdiction over it will be maintained, although the law may have been so altered by judicial action or by positive legislation that it has supplied the original omission, or has brought the legal § 62, 1 The position which I maintain is well illustrated by a dictum of Jessel, M. R., — one of the most clear-headed and able judges of this generation, — in the recent ease of Johnson v. Crook, L. R. 12 Ch. Div. 639, 649. He is discussing the question whether a certain rule of equity jurisprudence had been established, and has cited a series of decisions to show that it had not been established, but that the contrary rule had been acted upon. He then adds : "Having examined all the authorities, I cannot find a trace of it (i. e., the rule in question) 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 thought ought to be law." To avoid a mis- understanding of this position, it must be remembered that I am speaking of the equity system as a whole, as it exists in England, and in those American states which have clothed their courts with the entire equitable jurisdiction of the chancery. In several of the states, a partial jurisdic- tion only has been gi-anted, and it is by the express language of the statutes restricted to those cases in which an adequate remedy cannot be obtained at law. In giving a construction to this legislation, the ques- tion whether the legal remedy is adequate becomes of great practical importance. This subject, as to the extent of the jurisdiction, which is here merely alluded to, will be fully examined in a subsequent chapter. § 62, (a) The text is quoted and peal, 72 N. J. E'q. 910, 14 L. K. A. followed in the interesting case of (N. S.) 30-1, 67 Atl. 97; quoted, also, Vanderbilt v. Mitchell, 71 N. .J. Eq. in Wagner v. Armstrong, 93 Ohio St. 632, 63 Atl. 1107 (no jurisdiction to 443, 113 N. E. 397. See, also, Earle cancel or correct a birth certificate v. American Sugar Refining Co., 74 in which the plaintiff is falsely N, J. Eq. 751, 71 Atl. 391, 395. named as father), reversed on ap- ' 71 THE NATQEE OF EQUITY. § 63 rule into a conformity with justice, or has furnished an adequate legal remedy. This latter proposition is true as the general doctrine concerning the extent of the equity jurisdiction, but its operation has sometimes been pre- vented, and the jurisdiction itself denied, in such cases by express statute.^ ^ § 63. Recapitulation: Nature of Equity Stated in Four Propositions. — I shall bring this examination into the gen- eral nature of equity to an end by formulating four dis- tinct propositions : 1. The moral law, as such, is not an element of the human law. Whatever be the name under which it is described, — the moral law, the natural law, the law of nature, the principles of right and justice — this code, which is of divine origin, and which is undoubtedly compul- sory upon all mankind in their personal relations, is not per se or ex propria vigore a part of the positive jurispru- dence which, under the name of the municipal law, each independent state has set for the government of its own body politic. This truth, so simple and so plain, and yet so often forgotten by text-writers and judges, removes at once all doubt and difficulty from a clear conception of the positive human law, and of its relations with the higher and divine law which we call morality. Speculative writers upon the natural law may well see in it the foundation of all perfected human legislation, and it is not surprising that they should confound the two. It is surprising that those who treat of the human jurisprudence alone, and § 62, 2 In support of tlie general doctrine, see Shotwell v. Smith. 20 N. J. Eq. 79 ; Segar v. Parish, 20 Gratt. 672 ; Pratt v. Pond, 5 Allen, 59 ; King V. Baldwin, 2 Johns. Ch. 554; Cannon v. McNab, 48 Ala. 99; Collins V. Blantern, 2 Wils. 341; Bromley v. Holland, 7 Ves. 19, 21; Atkinson v. Leonard, 3 Brown Ch. 218. But, per contra, see Ainsley V. Mead, 3 Lans. 116; HaU v. Joiner, 1 Rich. (N. S.) 186; Riopelle v. Doellner, 26 Mich. 102. § 62, (b) The text is cited in quoted in Wagner v. Armstrong, 93 Wheeler v. Ocker & Ford Mfg. Co., Ohio St. 443, 113 N. &. 397 (parti- 162 Mich. 204, 127 N. W. 332; and tion is still an equitable remedy). § 64 EQUITY JURISPRUDENCE. 72 especially, those who administer that jurisprudence, should confound the commands uttered by the divine Law-giver with those issued by human law-makers. It is true that many of the precepts of this moral code relate to man- kind considered as members of an organized society, — the state, — and prescribe the obligations which belong to them as component parts of a national body ; and therefore these precepts are jural in their nature and design, and the duties which they impose upon individuals are of the same kind as those imposed by the human authority of the state. It is also true that human legislation ought to conform it- self to and embody these jural precepts of the moral code ; every legislator, whether he legislate in a Parliament or on the judicial bench, ought to find the source and mate- rial of the rules he lays down in these principles of mor- ality; and it is certain that the progress towards a per- fection of development in every municipal law consists in its gradually throwing off what is arbitrary, formal, and unjust, and its adopting instead those rules and doctrines which are in agreement with the eternal principles of right and morality. But it is no less true that until this work of legislation has b'^en done, until the human law-giver has thus borrowed the rules of morality, and embodied them into the municipal jurisprudence by giving them a human sanction, morality is not binding upon the citizens of a state as a part of the law of that state. In every existing municipal law belonging to a civilized nation, this work of adaptation and incorporation has been performed to a greater or less degree. § 64. 2. Another very large portion of the precepts of morality are not jural in their nature; they do not relate to mankind considered as forming a society, as organized into a state, but only to individuals, prescribing their per- sonal duties towards each other and towards God. These moral precepts create obligations resting upon separate persons, which the state and human law do not and cannot 73 THE NATUKE OF EQUITY. § 65 recognize or enforce; and they are left to be enforced solely by the divine sanction, acting in and upon the conscience of each person. Such obligations are often called "im- perfect," which is in every point of view a very incor- rect and misleading designation. Eegarded as parts of the divine code of morals, and as enforced by the divine sanction, they are as ''perfect" and binding as any others; considered as parts of human jurisprudence to be en- forced by human sanction, they are not simply imperfect, but are absolutely non-existent; they are no obligations at all. With this entire class of moral rules and pre- cepts the law of the state does not and cannot deal; they do not act within the sphere of human legislation ; they are not jural principles. The question then arises, Does the system of equity established in the United States and in England contain all the jural principles of morality which have been borrowed and incorporated into the municipal jurisprudence? The answer to this inquiry is contained in the two following propositions. §65. 3. "Equity" alone does not embrace all of the jural moral precepts which have been made active prin- ciples in the municipal jurisprudence. The "law," even the "common law," as distinct from statutory legislation, has in the course of its development adopted moral rules, principles of natural justice and equity, notions of abstract right, as the foundation of its doctrines, and has infused them into the mass of its particular rules. Unquestionably at an early day the common law of England had compara- tively little of this moral element; it abounded in arbitrary dogmas, as, for example, the effect given to the presence or absence of a seal; but this was the fault of the age, and the sin was chiefly one of omission; the ancient law was, after all, rather unmoral than immoral. But this has been changed, and at the present day a large part of the "law" is motived by considerations of justice, based upon notions of right, and permeated by equitable principles, § G6 EQUITY JURISPRUDENCE. 74 as truly and to as great an extent as the complementary department of the national jurisprudence which is tech- nically called ''equity." This work of elevating the law has been accomplished by two distinct agencies, judicial legislation and parliamentary legislation. At the present day the latter agency is the most active and by far the most productive; but prior to the epoch of conscious legal re- form, which began in England about 1830, and at a con- siderably earlier day in this country, the great work of legislation within the domain of the private law, except in a few prominent instances, such as the Statute of Uses, of Wills, etc., was done by the law courts. In expanding the law, the judges in later times have designedly borrowed the principles from the moral code, and constructed their rules so as to be just and righteous. The legislature also has conformed the modern statutes to the precepts of a high morality, and their legislation has tended to correct any mistakes and to supply any omissions in the body of rules constructed by the legislative function of the courts. § 66. While the foregoing description is true of a large portion of the "law," it is also true that from the very necessities of the case there is another large part of the law which is and must be founded upon expediency rather than upon morality. The influence of ancient institutions, the motives of policy, the primary importance of certainty, the necessity of rules which shall correspond with the aver- age conduct of men, — such, for example, as many rules of presumption which may produce great wrong in particular cases, — these and other facts of equal importance must exist in every society, and must prevent a determinate part of its law from being constructed upon a basis of morality, and from admitting the creative force of purely moral prin- ciples. This inherent necessity of a constituent part which is arbitrary and expedient, rather than just and righteous, is a most important distinction between the ''law" and ** equity." The element, however, of the English and 75 THE NATURE OF EQUITY. § 66 American law, which has operated by far the most power- fully to retard its development in the direction of morality, which has placed an insuperable barrier to its perfected growth, which has rendered it incomplete as an embodiment of jural rights, unable to administer justice to the citizen in all his relations, and unequal to the needs of society, has been and is its mode of procedure, its remedial system as a whole. This narrow, technical, arbitrary procedure, ad- mitting growth in only one direction, granting but few remedies, and incapable of enlarging their number or changing their nature, was the fact which more than all else made it impossible for the "law" to borrow all the jural precepts of the moral code, incorporate them into its own rules, and administer the full remedial justice which these equitable principles demanded. The legal growth was stunted, its development was checked, its tendencies to do justice in all the private relations of society were thwarted by its partial remedies and its imperfect means of admin- istering them. From this cause the necessity of a distinct department of equity, with its own mode of procedure, and with absolute freedom and elasticity in the forms of its remedies, and their adaptation to the rights and duties of parties, has continued to the present day, and must con- tinue until the principles and rules of the common-law remedial system are utterly abandoned.^ § 66, II quote the following passage from Mr. Snell's Principles of Equity (Introd., pp. 2, 3), which expresses substantially the same theory as that given in the text: "Are we, then, to infer that the equity of our Court of Chancery represents the residue of natural equity, or, to put it conversely, the whole of that portion of natural equity which may be enforced by legal sanctions, and administered by legal tribunals'? The slightest acquaintance with English jurisprudence will show us that were we to arrive at this conclusion, we should ignore the claims of the common law and the statute law. Although, when we make use of the term 'common law/ we use it as contradistinguished from equity, technically so called, that circumstance should by no means blind us to the fact that in the main the common law is a system as much founded on the basis of natural justice and good conscience as our equity system ; that § G7 EQUITY JURISPRUDENCE. 76 §67. 4. As the expansive tendencies of the common law are thus confined within certain limits, and as its power to administer justice and to grant the variety of remedies needed in the manifold relations of society is incomplete, the English and American system of equity is preserved and maintained to supply the want, and to render the na- tional jurisprudence as a whole adequate to the social needs. It is so constructed upon comprehensive and fruit- ful principles, that it possesses an inherent capacity of ex- pansion, so as to keep abreast of each succeeding genera- tion and age. It consists of those doctrines and rules, pri- mary and remedial rights and remedies, which the common law, by reason of its fixed methods and remedial system, if it has fallen short in its operation, its failure is rather to be attributed to defects in the modes of administering those principles than to any inherent weakness or deficiency of the principles themselves. Clearly, therefore, another large portion of enforceable equity, often enfeebled though it be by a defective mode of administration, is to be found in the common law. And finally, we must look to the enactments of the legislature, the statute law, as embodying and giving legal sanction to many of those principles of natural equity Vv'hieh, though capable of being administered by courts, have been omitted to be recognized as such, — an omission arising from that tendency of all human institutions founded on a body of principles to assume a defined and solidified mass, refusing to receive further accessions even from a cognate source, and thus to become after a time incapable of expansion. Having thus mapped out the whole area of what is termed natural justice, — having seen tliat a large portion of it cannot be enforced at all by civil tribunals, that another large section of it is administered in courts of common law, and a third part enforced by legislative enactments, — we are in a position to indicate approximately the province of equity, technically so termed. Putting out of consideration all that part of natural equity sanctioned and enforced by legislative enactments, equity may then be defined as that i^ortion of natural justice which, though of such a nature as prop- erly to admit of its being judicially enforced, was, from circumstances, omitted to be enforced by common-law courts, — an omission which was supplied by the Court of Chancery. In short, the whole distinction be- tween equity and law may be said to be, not so much a matter of sub- stance or principle as of form and histoi-y." These concluding sentences hardly contain an adequate conception of the English and American equity. 77 THE NATURE OF EQUITY. § 67 was either unable or inadequate, in the regular course of its development, to establisli, enforce, and confer, and which it therefore either tacitly omitted or openly rejected. On account of the somewhat arbitraiy and harsh nature of the common law in its primitive stage, these doctrines and rules of equity were intentionally and consciously based upon the precepts of morality by the early chancel- lors, who borrowed the jural principles of the moral code, and openly incorporated them into their judicial legisla- tion. This origin gave to the system which we call equity a distinctive character which it has ever since preserved. Its great underlying principles, which are the constant sources, the never-failing roots, of its particular rules, are unquestionably principles of right, justice, and morality, so far as the same can become the elements of a positive human jurisprudence; and these principles, being once in- corporated into the system, and being essentially unlimited, have communicated their own vitality and power of adap- tation to the entire branch of the national jurisprudence of which they are, so to speak, the substinicture. It follows that the department which we call equity is, as a whole, more just and moral in its creation of right and duties than the correlative department which we call the law. It does not follow, however, that the equity so described is ab- solutely identical with natural justice or morality. On the contrary, a considerable portion of its rules are confessedly based upon expediency or policy, rather than upon any no- tions of abstract right. § 68 EQUITY JUKISPRUDENCB. 78 SECTION m. THE PRESENT, RELATIONS OF EQUITY WITH THE LAW. ANALYSIS. § 68. Importance of correctly understanding these present relations. § 69. Changes in the relations of equity to the law effected partly by statute and partly by decisions. §§ 70-88. Important instances of such changes in these relations. § 70. In legal rules concerning the effect of the seal. § 71. Ditto suits on lost instruments. § 72. Ditto forfeitures and penalties. §§ 73, 74. Ditto mortgages of land. § 75. In statutes concerning express trusts. § 76. Ditto recording and doctrine of priorities, § 77. Ditto administration of decedents' estates. § 78. Ditto jurisdiction over infants. §§ 79, 80. Ditto married women's property. § 81. In statutory restrictions upon the equitable jurisdiction. §§ 82, 83. In the practical abolition of the "auxiliary" jurisdiction. §§ 84-88. In the Reformed Procedure combining legal and equitable methods. § 68. Importance of Correctly Understanding These Present Relations. — In accounting for the historical origin of equity, and in describing its general nature, it is neces- sary to go back to the period of its infancy and early growth, when the common law was also in its primitive and undeveloped condition. We thus naturally form a picture of the two systems standing in marked contrast and even opposition, acknowledging different sources, controlled by different principles, exhibiting different tendencies, each complete in itself and independent of the other. The im- pression which is thus obtained of their relations is too apt to be retained in describing the equity as it has existed at subsequent times, and even as it exists at the present day. The effect of such a tendency to confuse different epochs and conditions is shown in some of the treatises upon equity jurisprudence, which tacitly assume that all of the original antagonism still prevails, and which, ignor- 79 PRESENT EELATIONS OF EQUITY WITH THE LAW. § 69 ing the great and often radical changes made in the law, discuss their subject-matter as though the relations be- tween law and equity continued to be the same as they were in the reign of Charles IL, or even later, in the reigns of George III. and George IV., and under the chancellorships' of Lord Thurlow and Lord Eldon, — as though all the harsli, arbitraiy, unjust rules which then disgraced the law re- mained unmodified. Such neglect to appreciate the actual condition of the law will lead to the useless discussion of equitable doctrines which have become obsolete, since all occasion for their application has been removed, and will produce, almost as a matter of course, a distorted repre- sentation of equity as a whole. In order, therefore, to form an accurate notion of equity, its present relations with tlie law must be carefully observed, and to that end the changes which have been made in the law itself, and which have modified those relations, must be pointed out at every stage of the discussion. Without undertaking to give an ex- haustive enumeration, or any detailed description, I shall simply mention some of the most important classes of al- terations which have been made in the law since the prin- ciples and doctrines of equity were definitely settled. § 69. Changes in the Relations of Equity to the Law. — These changes have certainly been very great. They have been effected, first, by the legislative work of the common- law courts; and secondly, "by statutory legislation. Since thft doctrines of equity began to react upon the law, and especially since the impulse given by the brilliant career of Lord Mansfield, the common-law courts have consciously adopted and applied, as far as possible, purely equitable notions — not so much the technical equity of the Court of Chancery, but the principles of natural justice — in their decision of new cases, and in the development of the law, until a large part of its rules are as truly equitable and righteous in their nature as those administered by the ^ 70 EQUITY JUEISPRUDENCE. 80 Chancellor.^ From time to time, the legislature has inter- posed, and by occasional statutes has aided this work of reform. During the past generation, since about 1830 in England, and an earlier date in the United States, this legislative process of amendment has been more constant, more systematic, and more thorough, extending to all parts of the law, and has been the chief agency in the work of legal reform. The result is, that many doctrines and rules which were once exclusively recognized and enforced by chancery have become incorporated into the law, and are now, and perhaps long have been, administered by the law courts in the decision of cases. In this manner, the law has been brought at many points into a coincidence with equity. . Nor has the legislative work been confined to the law; it has largely acted upon the system of equity, and has brought that system into a closer resemblance, external at least, with the law. These changes have naturally gone much further in the United States than in England; the law has been more essentially altered, and equity itself has been subjected to more limitations. The following in- stances are taken from the legislation, statutory or judicial, of this country. § 70. 1. Effect of a Seal. — One of the earliest instances of equity breaking in upon the common law was the relief which it gave to a debtor on a sealed instrument who had paid the debt in full, but had neglected to obtain a release or a surrender up of the contract. The legal rule was, that a sealed instrument could only be discharged by another instrument of as high a character, or else by a surrender of it, so that the creditor could not ''make profert" of it in an action at law.* Equity justly regarded the debt as § 69, (a) Adoption of Equitable § 70, (a) Quoted and cited in Principles l)y Common-law Courts. Lacey v. Hutchinson, 5 Ga. App. 865, This sentence of the text is quoted 64 S. E. 105. The opinion in this in McCreary v. Coggeshall, 74 S. C. case contains an interesting histori- 42, 7 Ann. Gas. 693, 7 L. R. A. cal review of the subject. (N. S.) 433, 53 S. E. 978 (doctrine as to merger of estates). 81 PEESENT RELATIONS OP EQUITY WITH THE LAW. § 70 the real fact, its payment as a satisfaction, and the seal as a mere form. It therefore relieved the debtor who had thus paid, and against whom an action at law was brought on the obligation, by restraining this action; and the debtor was thus practically safe, although technically his legal lia- bility still subsisted. Generalizing this particular rule, equity never gave the consequence to a seal which the com- mon law gave ; it always looked below this mere form into the real relations of the parties, and rejected the dogma that a seal can only be discharged by an act of equal de- gree. These equitable doctrines have been transferred into the ''law" of the United States. The special head of equitable relief first mentioned has become utterly obso- lete, since the defense of payment in such cases has long been admitted by the common-law courts. In most of the states all distinction between sealed and unsealed instru- ments is abolished, except so far as the statute of limita- tions operates to bar a right of action ; in others, the only effect of the seal upon executory contracts is to raise a prima facie presumption of a consideration, while it is still required on a conveyance of land ; in a very few, the com- mon-law rule is retained, which makes the seal conclusive evidence of a consideration.^ By this legislation, all the distinction between the legal and the equitable doctrines concerning contracts and other rights, except those grow- ing out of a conveyance of land, founded upon the presence § 70, 1 In some states the seal is only presumptive e^ddence of a con- sideration: See New York, 2 R. S. 406, § 77; Alabama, Rev. Code (1867),- p. 526, § 2632; Michigan, Comp. Laws (1871), vol. 2, p. 1710, § 90; Oregon, Gen. Laws (1872), p. 258, § 743; Texas, Paseh. Dig., vol. 1, § 228. In many states all distinction between sealed and unsealed instruments is abolished, and a seal is never essential; See California, Civ. Code, § 1629; Indiana, 2 R. S. (G. & H.), p. 180, § 273; Iowa, Rev. Code (1873), p. 383, §§2112-2114; Kansas, Gen. Stats. (1868), p. 183, §§6-8; Kentucky, 1 R. S. (Stanton's), p. 267, §§ 2, 3; Nebraska, Gen. Stats. (1873), p. 1001; Tennessee, Gen. Stats. (1871), §§ 1804, 1806; Texas, Pasch. Dig., vol. 1, § 5087 (on contracts and conveyances "respecting real or personal property"). 1—6 § 71 EQUITY JUEISPRUDENCB. 82 or absence of the seal, has been abrogated. The equitable doctrines, of course, remain, but they have become a part of the law, and no necessity remains of applying to courts of equity for their enforcement. Even the equitable rule permitting a sealed agreement to be modified or replaced by subsequent parol contract is generally adopted by the law courts, except in cases where the statute of frauds prevents its operation.^ § 71. 2. Lost Instruments. — By another ancient doctrine of the common law, the creditor on a sealed instrument which had been lost or accidentally destroyed was prohib- ited from maintaining an action upon it, because he could not make the ^^profert" which the inflexible rules of the legal procedure required. Equity, disregarding this form, gave him relief by enforcing the demand.^- At a latter day, when negotiable paper came into use, the owner of a bill or note so drawn that it could be negotiated by delivery, who had lost it, was debarred from suing upon it at law, because the common-law courts had no means, according to theii' rigid forms of procedure, of compelling him to indem- nify the defendant against a second claim made by any bona fide holder into whose hands the paper might have come. As the Court of Chancery has such power, through its ability to shape its remedial processes so as to meet any new emergency, it acquired jurisdiction in this class of cases, and for a long time all suits upon such lost negotia- ble paper were necessarily brought in equity. Both of § 70, 2 See notes to Rees v. Berrington, 2 Eq. Lead. Cas. 18G7, 1S96 (4th Am. ed.); Hurlbut v. Phelps, 30 Conn. 42; Headley v. Goundry, 41 Barb. 279 ; Clark, v. Partridge, 2 Pa. St. 13 ; 4 Pa. St. 166 ; Keissel- brach v. Livingston, 4 Johns. Ch. 114; Kidder v. Kidder, 33 Pa. St. 268. § 71, (a) The text is cited to the cil, Eoyal Arcanum, 70 N. J. Eq. 607, point that equity takes jurisdiction 61 Atl. 982. This paragraph is also to give relief on a sealed instrument cited in Lacey v. Hutchinson, 5 Ga. ■which is lost or destroyed or which App. 865, 64 S. E. 105; Eeeves v. has come into the hands of the de- Morgan, 48 N. J. Eq. 415, 21 Atl. fendant: Hoagland v. Supreme Coun- 1040. 83 PBESENT RELATIONS OF EQUITY WITH THE LAW. § 72 these legal rules have been changed. The courts of law have long been able to entertain actions upon lost or de- stroyed bonds and other sealed instruments, since the an- cient requirement of a profert by the plaintiff has been ab- rogated. Statutes have generally been enacted in the American states which permit actions at law on lost nego- tiable paper to be brought by the owner, who is simply re- quired, as a preliminary step, to execute and file a bond of indemnity to the defendant. ^ In this manner the neces- sity for equitable interference has been removed, and all such actions to recover a money judgment upon lost obliga- tions or negotiable instruments are brought in courts of law according to the legal modes of procedure.^ §72. 3. Penalties. — Another most important class of changes in the law consists in the adoption, to a consider- able extent, of the equitable doctrines concerning penalties and forfeitures. The ancient common law rigidly exacted all penalties and enforced all forfeitures if the act which should prevent them was not done at the very time and in the precise manner stipulated. Equity from the earliest period of its growth adopted the policy of relieving against penalties and forfeitures, by generally treating the time of performance as immaterial, and a substantial conform- ity to the stipulated manner of it as sufficient, and by giving to the creditor what was justly and equitably his due, and compelling him to forego the surplus which he had exacted, and which the law permitted him to retain. These equi- table doctrines have to a great extent been transferred into the law of the American states. Law courts give judgment for the amount really due, and not for the penalty, and often accept a subsequent performance without exacting the forfeiture. The most familiar example is that of a §71, 1 Examples of such statutes are, 3 N Y. R. S., p. 691, §§ 106, lOS (5th ed.) ; Civil Code of Cal., § 3137. § 71, (b) This paragraph of the text is cited in Beeves v. Morgan, 48 N. J. Eq. 415, 21 Atl. 1040. § 73 EQUITY JUEISPRUDENCB. 84 bond with penalty, conditioned for the payment of a smaller sum which represents the real debt. The equitable doctrine restricting the recovery to the sum constituting the actual debt, with interest for the delay, has been every- where accepted as a settled rule of the law. This modifica- tion of the common law has generally been extended so as to include, all cases where a penalty or forfeiture has been agreed- upon as security for the payment of a certain or ascertainable sum of money. § 73. 4. Mortgages. — Intimately connected with the equitable doctrine relating to forfeiture is the remarkable change which has been made in the law of the American states concerning mortgages of land. Without attempting to describe either the common law or the equity doctrine as to mortgages, it is sufficient for my present purpose to ,state very briefly their results. Under the common law and equity in combination, two different kinds of interests or estates, the legal and the equitable, are simultaneously held in the mortgaged premises by the two parties. The mortgagee is the legal owner, and after a default is entitled to the possession of the land ; he can convey his estate, not by an assignment of the mortgage, but by a deed of the land itself ; on his death it descends to his heirs or passes to his devisees, and does not go to his administrators or execu- tors; in short, he is at law clothed with all the rights and powers of legal ownership. ^ On the other hand, the estate of the mortgagor, after default, is purely an equitable one, a right to redeem the land from the mortgagee, his heirs, devisees, or grantees, and therefore very properly denomi- nated ''an equity of redemption." Equity regards this interest of the mortgagor as the real beneficial estate in the land, subject, however, to the lien and encumbrance of the mortgage, and as such it can descend to his heirs, pass to his devisees, or be conveyed by deed to his grantees. Ac- § 73, II have assumed in this description that the mortgage is in fee, which is the common case in the United States. 85 PRESENT RELATIONS OF EQUITY WITH THE LAW. § 74 cording to the equitable theory, the interest of the mort- gagee is simply a lien and encumbrance on the premises, and not an estate in the land itself. These legal rules, and this double ownership resulting therefrom, prevail in Eng- land, and are still retained in most of the New England states and in a few of the other commonwealths; but throughout the greater part of the country a radical change has been made in the law, and its doctrines as to the re- spective rights and interests of the mortgagor and mort- gagee have been substantially conformed to those of equity. I shall take the law of New York as the type. § 74. In New York — and its legislation has been sub- stantially followed in so many of the states that it may fairly be said to express the American doctrine — there is no longer any double ownership nor any equitable estate in the land; there is one legal estate only, and that belongs to the mortgagor until it is cut off by foreclosure and sale. The interest of the mortgagee, under ordinary circum- stances, is not an estate of any kind in the land ; he is sim- ply a creditor holding a lien upon the mortgaged premises as security for his debt, which lien he must enforce by a foreclosure and sale.^ He is not entitled to possession, and cannot maintain ejectment either against the mortgagor or a stranger. On his death his interest is wholly personal assets, and goes to his administrator or executor. He can- not convey the land, and his deed of it could operate (if at all) only as an assignment of the mortgage. He can assign the mortgage by mere delivery; but so completely is the debt the principal thing and the mortgage an incident, that an assignment of the debt carries with it the mortgage as a collateral, while an assignment of the mortgage with- §74, (a) The text is cited in also cited, to the same point, in First Tapia v. Demartini, 77 Cal. 383, 11 State Bank of Le Sueur v. Sibley Am. St. Rep. 288, 19 Pae. 641, to the County Bank, 96 Minn. 456, 105 point that a trust may be declared N. W. 485, 489, following Tapia v. in a mortgage by parol, since it is Demartini, and reviewing cases. not an estate in land. The text is § 75 EQUITY JURISPRUDENCE. 86 out the debt is a nullity. On the other hand, the mortgagor is the owner of the entire legal estate, subject to the lien and encumbrance of the mortgage, until his title is divested by a foreclosure and sale; the term ''equity of redemp- tion," when used to designate his interest, is therefore a complete misnomer, productive only of confused and mis- taken notions. As such owner, the mortgagor can convey, mortgage, or devise the land, and if he dies intestate, it descends to his heirs. These rules no longer form a part of the equitable doctrine merely ; they are, partly as the results of statutes and partly of judicial decision, rules of the law, constantly recognized and enforced in all the courts of com- mon-law jurisdiction.! The effect of these alterations in the law upon the equity jurisdiction has certainly been very great. § 75. 5. Express Trusts. — Another important change in the relations between law and equity has been effected by the statutes of many states concerning express trusts in land. By the English law, in the absence of any statutory restriction, express active trusts may be created for all pos- sible purposes, and express passive trusts corresponding with all the various legal estates, in fee, for life, for years, in possession, and in remainder, as the case may be. In the latter class of trusts the naked legal title only is vested in the trustee, while the equitable interest of the beneficiary is the one which possesses all the attributes of real owner- ship. The field of equity jurisdiction which these trust estates presented has been greatly narrowed by the policy of American legislation. The statutes of New York and of many other states have at one blow abolished all express § 74, 1 For example, every court of law will recognize and enforce an assignment of the debt and mortgage made by the mortgagee; and in every such court, as well as in courts having jurisdiction of probate matters, the interest of the mortgagee, upon his death, is recognized as devolving upon his personal representatives, while that of the mortgagor is treated as descending to his heirs or as passing to his devisees. 87 PRESENT RELATIONS OF EQUITY WITH THE LAW. §§ 76, 77 passive trusts, and have restricted express active trusts to a very few specified objects, ^ declaring void all those at- tempted to be created for other purposes. Even in the iaw. cases where these trusts are permitted, the entire estate is vested in the trustee; the beneficiary has no ownership, legal or equitable, in the land; his sole interest is simply a right in equity to compel a performance by the trustee of the obligations created by the trust, — a right of action merely, and not an equitable estate of any kind in the subject-matter. This great alteration in the relations of the law and equity with respect to trusts in land has neces- sarily produced an important effect upon the extent and scope of the equity jurisdiction throughout a great part of the United States. § 76. 6. Recording and Priorities. — The system of re- cording conveyances and mortgages of land which univer- sally prevails throughout this country has greatly modified and simplified the doctrines of equity concerning notice which affect titles to real estates. While the fundamental principles with respect to notice are unchanged and form a part of our own equitable jurisprudence, it is not too much to say that most of the particular rules relating to titles which have been developed from these principles by the English Court of Chancery have little or no application in the United States. § 77. 7. Administration. — ^Equity, in the exercise of its unrestricted powers, has jurisdiction in the matter of set- § 75, 1 The following are the objects for which express active trusts are generally permitted in the states which have adopted this legislation, namely: 1. To sell the land for the purpose of paying debts; 2. To sell, mortgage, or lease the land for the purpose of paying legacies or other charges upon it; 3. To hold and manage the land for the purpose of receiving its rents and profits and applying them to the use of a bene- ficiary; 4. To hold and manage the land for the purpose of receiving its rents and profits and accumulating them during the minorities of infant beneficiaries. § 77 EQUITY JURISPRUDENCE; 88 tliiig the personal estates of deceased persons; and in England this is undoubtedly the most important branch of the equitable jurisprudence, — a very large proportion of the suits brought in the Court of Chancery are administra- tion suits. The jurisdiction may theoretically remain in some of the states which have conferred full equity powers upon their courts ; it does not even nominally exist in the others ; and it is practically unknown throughout the entire country. As administered in England, this head of juris- diction includes everything pertaining to the settlement of decedents' estates, except the probate of wills, and the issue of letters testamentary and of administration;^ and there is a considerable discrepancy between the legal and the equitable rules concerning the nature, distribution, and marshaling of assets. In the American states these mat- ters are all governed by statutes, which determine the na- ture and regulate the application and distribution of assets by fixed and certain rules binding alike upon all tribunals. Probate courts are established for the settlement of dece- dents' estates, and all questions arising in the course of ad- ministration are decided by them, to the practical exclusion of the equity jurisdiction.^ Equitable suits growing out of pending administrations are still frequent, but they are brought for some special and partial relief, for the con- struction of a will, the determination of a controversy aris- ing with respect to a particular legacy, the adjustment of conflicting claims to a particular fund, and the like. It is true that the statutory rules for the settlement of estates are largely based upon the principles which had been set- tled in equity, and that equitable doctrines are constantly enforced by the courts of probate ; but it is no less true that §77, (a) The text is quoted in Cilley, 58 Fed. 977, 986 (proceeding Moulton V. Smith, 16 R. I. 126, 27 to establish a will is not a "suit in Am. St. Eep. 728, 12 Atl. 891; cited, equity"). The text is cited, also, Toland v. Earl, 129 Cal. 148, 79 Am. in Cabin Valley Min. Co. v. Hall St. Rep. 100, 61 Pac. 914. (Old.), 1.55 Pac. 570 (jurisdiction § 77, (b) The text is cited in In re over guardians). 89 PRESENT RELATIONS OF EQUITY WITH THE LAW. § § 78, 79 this important head of equity jurisdiction has been greatly restricted, or even practically abandoned, in all the states. § 78. 8. Infants. — ^Another branch of the jurisdiction equally familiar to the English lawyer, and equally un- known in the United States, is that over Infants. When- ever an infant succeeds to property, the English chancery takes the management of his person and his estate. A proper suit having been commenced, the court appoints a guardian (in the absence of a testamentary appointment), and the infant is thenceforward a ''ward of the court," under its actual paternal care. In some of the states, the courts possessing full equitable jurisdiction have theoreti- cally the power to appoint a guardian; but even if this power should be exercised, the court does not make the infant its ward and extend a personal oversight over him. In this matter, however, as in the administration of dece- dents' estates, the legislature has intervened, and the pro- bate courts practically appoint all guardians, and control their official actions. Under their general power in cases of trust and of accounting, the American courts of equity may give all proper relief to wards against their guard- ians; but the peculiar jurisdiction over the persons and estates of infants possessed by the English chancery does not, to any extent, exist in the American equity jurispru- dence.^ § 79. 9. Married Women. — One of the most important of the alterations made in the relations between law and equity is that caused by the legislation concerning married women's property and capacity to contract. The follow- ing outline will give a general notion of this legislation ; its details must be postponed for a subsequent examination. In nearly all the states the common-law rules giving the husband an ownership or interest in his wife's property have been abrogated; the wife is clothed with a full legal §78, (a) The text is cited in New- 679, 6S0, 118 C. C. A. Ill; Messner berry v. Wilkinson, 199 Fed. 673, v. Giddings, 65 Tex. 301. § 80 EQUJTY JURISPRUDENCE. 90 estate in and riglit to all the property, real and personal, which she has at the time of the marriage, or which she may acquire by inheritance, by will, conveyance, grant, or gift, during its continuance; and she has generally the entire power of its management and disposition, as though she were unmarried. This is the prevailing type of statute, but in some of the states the husband must join in a deed or mortgage of her land, and in a very few he is still en- titled to its possession. In addition to the foregoing, there are certain special forms of legislation prevailing over large portions of the country. A number of the western and southwestern states have substantially adopted the French system of ''community of assets," whereby the two spouses are co-owners of the community property, which is under the husband's exclusive management during their joint lives. With reference to the wife's capacity of en- tering into contracts, there are two general types or classes of the legislation. By the first, which is confined to a comparatively few states, she is clothed with full power to contract in any business, trade, or profession which she carries on, and also with reference to her own property, and the latter embraces all agreements made for the bene- fit of her property, and all agreements made for any pur- pose which are expressly charged upon such property. All these contracts are legal in every sense of the term, and not equitable. "When once made, they become per- sonally binding upon her, and are enforced by ordinary legal actions, legal pecuniary judgments, and executions. By the second class, which prevails in most of the states, the wife's capacity is limited to agreements made with reference to her property; these contracts are wholly equital3le in their nature and obligation, and can only be enforced by an equitable action against the property itself, and not against the wife personally. § 80. The effect of this legislation upon the equity ju- risdiction in the United States must be veiy great. In the 91 PRESENT RELATIONS OF EQUITY WITH THE LAW. § 80 first place, the married woman's equitable separate estate, and the doctrines of equity directly concerned with its maintenance, are, for the future at least,^ superseded. The fabric constructed by the chancellors with so much acumen and skill, in order to protect the natural rights of wives which the law ignored, is virtually overthrown. The law, by conferring full legal ownership upon married women, has done for them much more than family settlements or nuptial contracts can do, even when enforced by courts of equity. Equity in the United States is thus at one blow relieved of a subject-matter which in England occasions a very large part of its actual jurisdiction. With respect to the contracts of married women, the effect of the modern legislation has been directly the opposite in different states. In those commonwealths where wives have been clothed with the large capacity to contract, and their contracts have been made legal, the equitable jurisdiction over their agree- ments has been virtually abrogated. Whatever kind of con- tract is within the power of a married woman falls under the ordinary jurisdiction of the law courts, and a suit in equity to enforce it as a charge upon any specific property belonging to her would be useless, even if it could now be maintained. In all the other states where the wife's con- tracts are not yet made legal, the equitable jurisdiction is to a certain extent enlarged. It is no longer confined in its operation to her separate equitable estate held in trust for her by an express or implied trustee ; it reaches to and § 80, 1 These statutes, of course, do not affect existing estates held in trust for wives ; but in many of the 'states they authorize the wife, by means of an order of court, to convert such equitable interests into legal estates; that is, to compel a conveyance of the land directly to themselves by the trustees. Nor do these statutes forbid the creation of trusts in favor of married women in future, and such trusts are even now occa- sionally created; but all necessity for them, in order to protect wives against the acts or defaults of husbands, is removed, and the only ad- vantage of such a trust is the protection of the land against the acts of the wives themselves, by so arranging the ownership that they can neither aUenate nor encumber it. §§81,82 EQUITY JURISPRUDENCE. 92 operates upon all her property of which she holds the full legal title and interest. While the wife's power to make contracts which shall be a charge upon her property is not increased, the property thus affected, and which can be reached by a court of equity, is all which the wife holds in her own name and right by a legal title. § 81. 10. Statutory Limitations of Equity. — The changes in the relations of law and equity described in the fore- going paragraphs are chiefly those resulting from altera- tions made in the law itself^ by which it has assumed more of an equitable character; those to be hereafter described have resulted from modifications of equity jurisdiction or jurisprudence. In several of the states the full equitable jurisdiction exercised by the English chancery has never been conferred upon any tribunal, A partial jurisdiction only is possessed by some designated court, derived from and measured by statute, defined, limited, confined to cer- tain enumerated classes of subject-matters. This fact, which is most important to members of the profession practicing in all parts of the counti^^, should not be over- looked in a treatise upon equity as it is administered in the United States. § 82. 11. The Auxiliary Jurisdiction.^ — A distinct de- partment of equity jurisdiction which arose at an early day from the imperfection of the legal procedure was termed Auxiliary, since it was exercised, not to obtain any equitable remedy, nor to establish any equitable right or estate, but to aid in maiiitaining a legal right, and in prosecuting actions pending or to be brought in a court of law. This ancillary function of chancery was the neces- sary result of certain inflexible legal rules — especially those concerning the examination of witnesses and the ob- taining of evidence — which interfered with the administra- tion of justice in the common-law courts. The most § 82, (a) Sections 82 and 83 are cited in Chapman v. Lee, 45 Ohio St. 356, 13 N. E. 736. 93 PRESENT RELATIONS OF EQUITY WITH THE LAW. § 82 important and common instances of this auxiliary juris- diction were ''Suits for Discovery" and ''Suits for Per- petuations of Testimon}^," or for taking testimony "r/e bene esse." A brief description of these proceedings — once so essential for the attainment of justice — will suf- fice for my present purpose. An action at law affecting property rights is pending between A and B. Eitlier one of the parties, — I will assume it to be the defendant, B, — fearing that he cannot succeed without the help of facts within the personal knowledge of his adversary, com- mences a suit in equity against A, setting forth in his bill all the facts of the case, and adding thereto such inter- rogatories as he thinks will elicit the truth from A. A is thereupon obliged to answer this bill under oath, fully, and without reservation or evasion. No further relief is asked by the plaintiff, no decree is made, and as soon as the answer is complete, the function of the equity court is ended. Having thus obtained the written statements of his adversary under oath, B can, if he please, use them as evidence on the trial of the action at law ; and under certain circumstances the same privilege may be enjoyed by A to use his answer as evidence in his own behalf. Such was the nature and ofifice of the ''Bill of Discovery"; and for a long time it was the only means of obtaining the evidence of the parties for use on the trial of legal actions. The "Suits to Perpetuate Testimony" or to take testimony de bene esse were special modifications of this contrivance. Wliere a dispute with respect to property rights existed between A and B, and in the one case no action had yet been brought, and could not yet be brought, while in the other case an action had already been commenced, and im- portant evidence is within the knowledge of persons who, from age, sickness, or other sufficient cause, may not be able to testify upon the expected trial, either of the con- testants may bring a suit in equity against the other, not for the purpose of trying and deciding the matters in con- troversy, but for the purpose merely of eliciting the facts § 83 EQUITY JUEISPRUDENCE. 94 through the answer and of taking the testimony of the wit- nesses. The answer and depositions, being preserved in the offices of the chancery, can then be nsed npon the trial, of the legal action, whenever it shall take place. In other words, a court of equity entertained jurisdiction of the matter to the extent of taking the evidence and putting it into a permanent form, so that it might be '' perpetuated' ' for future use in a court of law.^ § 83. These instances of auxiliary jurisdiction have wholly disappeared from the English system under the late reorganization of the courts and the procedure,^ and have almost entirely disappeared from the equity as ad- ministered in the United States. 2 In England, in the states of this country generally, and in the United States courts, parties are permitted to testify in their own behalf, and are required to testify in behalf of their adversaries, in all actions and proceedings of a civil nature, so that every ground or reason for a "bill of discovery" has been re- moved, by the far more efficient means of an oral and per- sonal examination conducted by counsel in open court. In the states which have adopted the reformed American pro- cedure, suits for mere discovery have been expressly abolished, since the defendant in all actions, with certain exceptions, can be compelled to answer under oath and to §82, 1 See pos^, §§ 238-242, where these proceedings are more fully described. § 83, 1 See Judicature Act, Rules of Procedure, 25-27. § 83, 2 It should be carefully observed that this proposition is confined to "bills of discover^'," properly so called, as described in the test. The term "discovery" is often applied, but very improperly applied, to the statements and admissions made by the defendant in his answer, which may be useful to the plaintiff as evidence in the same suit in which the answer is filed. There is nothing m either the English or the American procedure which prevents the plaintiff in any action from taking advan- tage of all such admissions and disclosures of fact which the defendant in ^tiiat action may make by his answer; on the contrai'y, such disclosures in the pleadings are favored and sometimes required. But this is not "dis- covery," teehnieaUy and properly so called. 95 PBESENT RELATIONS OF EQUITY WITH THE LAW. § 84 testify as a witness. In other states wliich keep up tlie two jurisdictions of law and equity administered l)y the same tribunal, discovery as an auxiliary to trials at law is no longer necessary; and is, I believe, practically o])solete even where not formally abrogated.^ ^ In the few states which still retain a separate Court of Chancery, this juris- diction may be "nominally preserved. The jurisdiction to perpetuate testimony has generally been supplanted by simple, inexpensive, and more summary and efficient methods prescribed by statute, which can be applied to all actions for the purpose of obtaining and preserving any species of evidence. It seems to be still retained, however, upon the statute-books of several of the states. § 84. 12. The Reformed Procedure. — The most radical and extensive alteration in the relations between law and equity has been wrought by the Reformed American Pro- cedure, which prevails in more than half the common- wealths of this country, and all the essential features of which are enacted by the recent English Judicature Act.^ The grand underlying principle of this system consists in the abolition of all the forms of legal actions, the aboli- tion of all distinctions between actions at law and suits in equity, and the establishment of one Civil Action for the enforcement of all remedial rights. In and by this one civil action, legal and equitable causes of action, legal and equitable defenses, and legal and equitable remedies may be united, and may be determined by the same judgment. It has been settled by numerous decisions, wherever this system exists, that the legislative changes, being confined § 83, 3 In several of the states which have not adopted the reformed procedure, "bills of discovery" are expressly abolished. § 84, 1 See ante, § 40, note. § 83, (a) The text is cited to this The text is cited, also, in Becker v. effect in Chapman v. Lee, 45 Ohio Frederick W. Lipps Co. (Md.), 101 St. 356, 13 N. E. 736; Turnbull v. Atl. 783. Crick, 63 Minn. 91, 65 N. W. 135. § 85 EQUITY JURISPRUDENCE. 96 to procedure, have not affected the substantial doctrines either of law or of equity, — those doctrines which define and declare the primary rights and duties of individuals, and the remedies or reliefs to which they may be entitled. This proposition must, however, be accepted and under- stood with its proper and necessary limitations. The legis- lation has done much more than alter the mere external forms and modes of procedure ; it has necessarily affected to a certain extent the equity jurisdiction in the granting of its remedies, and has in some instances rendered the exercise of that jurisdiction unnecessary, by removing the ground and occasion for the remedies. In other words, the legislation has made it unnecessary, under certain circum- stances, to bring a suit in equity and to obtain specific equi- table relief. The most important of these results I shall point out in a very brief manner.a § 85. In the first place, the permission to set up an equi- table defense against a legal cause of action has in a great number of instances removed all occasion for bringing a suit in equity by which the equitable right of the defend- ant constituting his defense may be established and the prosecution of the legal action may be restrained. I take a simple example of a very large class of cases. A, the vendor in a contract for the sale of land, brings an action of ejectment against B, the vendee, who is in possession, and having the legal title, must of course recover at law. B was therefore obliged to file a bill in equity against A, and obtain thereby a decree of specific performance, and in the meantime an injunction restraining the further prosecu- tion of the action at law. Having obtained a conveyance of the legal title under his decree, B would be in a position to defend the action of ejectment, or any subsequent one which might be brought against him. By the reformed procedure, when the vendor commences a legal action to recover pos- session of the land from the vendee, the latter need not § 84, (a) See post, § 354, and note. 97 PRESENT EELATIONS OF EQUITY WITH THE LAW, § 86 resort to a second equitable suit, nor obtain an injunction. The whole controversy is determined in the one proceedinj^. B's equitable estate and right to a conveyance is not only a negative defense to A's legal cause of action, but entitles B in the same action to assume the position of an actor, and to obtain the full affirmative relief which he would formerly have obtained by his separate bill in equity, — a decree for a specific performance and a conveyance of the legal estate. Although no substantial doctrines of equity have been altered, still, the vendee is no longer compelled in such circumstances to sue in equity, nor to demand the ancillary remedy of an injunction. § 86. This familiar example may be generalized into the following universal proposition: Whenever, under the former procedure, one party. A, had a legal estate or right which entitled him to recover in an action at law brought against B ; and where B, having no legal defense to this action, was still possessed of an equitable estate or right which entitled him to some particular affirmative equitable remedy, — as, for example, a specific performance. a reformation or correction, a cancellation, a rescission, etc., — which remedy when obtained would clothe him with the legal estate or right, and enable him thereby to defeat the plaintiff A's action at law; and where, under these cir- cumstances, B would be obliged to go into a court of equity jurisdiction, and file a bill therein against A, and obtain a decree granting the desired equitable relief, and, as an in- cident thereto, procure an injunction restraining A's action at law, — in all such cases, the necessity, and even the pro- priety, of bringing the separate equity suit and enjoining the legal action are completely obviated, since B can set up all his equity by way of defense or counterclaim, recover a judgment for the affirmative relief which he seeks, and defeat the action brought against him by A, in that very action itself. It would not be correct to say that the equity jurisdiction has been abrogated in this class of cases, since 1—7 § 87 EQUITY JUKISPRUDENCB. 98 the defendant B might possibly follow the former method, and bring a separate action instead of setting up his equi- table rights as a defense and counterclaim; .but this cir- cuitous mode of proceeding is seldom adopted, and will ultimately, perhaps, be prohibited by the courts, so that this direct equity jurisdiction will doubtless, in time, be- come obsolete. 1 ^ § 87. One other equally important change produced by the reformed procedure should be mentioned. Under the system of separate jurisdiction, when a person possesses an equitable right or estate entitling him to some particular equitable remedy which, when obtained, would, in turn, confer upon him a legal right or estate in respect to the subject-matter, and enable him therewith to maintain an action at law, he is obliged (except in a few special cases) first to bring a suit in equity and procure a decree estab- lishing his right and granting him the needed equitable remedy, which clothes him with the legal title or estate. Having thus acquired a legal basis for his demand, he must go into a court of law and enforce his newly perfected legal § 86, 1 The following cases illustrate the operation of equitable de- fenses: Dobson V. Pearee, 12 N. Y. 156, 62 Am. Dec. 152; Pitcher v. Hennesey, 48 N. Y. 415; Heermans v. Robertson, 64 N. Y. 332; Crary V. Goodman, 12 N. Y. 266, 268, 64 Am. Dec. 506; Hoppough v. Struble, 60 N. Y. 430; Bartlett v. Judd, 21 N. Y. 200, 203, 78 Am. Dec. 131; Cavalli V. Allen, 57 N. Y. 508, 514; Andrews v. Gillespie, 47 N. Y. 487, 490; McClane v. White, 5 Minn. 178; Richardson v. Bates, 8 Ohio St. 257, 264; Petty v. Malier, 15 B. Mon. 604; Harris v. Viuyard, 42 Mo. 568; Onson V. Cown, 22 Wis. 329; Talbot v. Singleton, 42 Cal. 390, 395, 396; Bruek v. Tucker, 42 Cal. 346, 352; Lombard v. Cowham, 34 Wis. 486, 492. There may still be cases in which the defendant in the action at law cannot obtain full relief by means of an equitable defense, and is obliged to bring a separate suit in equity, and to obtain his equitable remedy by an affirmative decree, and in the mean time an injunction restraining the action at law. See this question quite fully discussed by Folger, J., in Erie Railway Co. v. Ramsey, 45 N. Y. 637. §86, (a) The text is cited to the such judgment, under the reformed effect that fraud in obtaining a procedure: Hogg v. Link, &0 Ind. judgment is an equitable defense to 346, 350. 99 PRESENT RELATIONS OF EQUITY WITH THE LAW. § 87 demand by means of a legal action. As familiar illustra- tions, if a person holds an equitable estate under a land eon- tract, he must compel a specific performance in equity be- fore he can recover possession of the land at law; if he holds the equitable estate under an implied trust, he must in general obtain a transfer of the legal title from the trus- tee before he can maintain ejectment for the possession; if the instrument under which he claims is infected with mistake, and his full rights under it depend upon a correc- tion of the mistake, he must obtain the remedy of reforma- tion or re-execution in equity, and may then enforce his per- fected legal right by the proper action at law; if his estate in land is purely an equitable one because a deed voidable through fraud has conveyed the legal title to another per- son, the equitable remedy of cancellation or rescission must be granted before a legal action for the possession can be successful. Wherever the reformed procedure has been administered according to its plain intent, the necessity of this double judicial proceeding has been obviated; indeed, if the true spirit of the new procedure is accepted by the courts, siich a separation of equitable and legal rights and remedies, and their prosecution in distinct actions, will not perhaps be allowed. The plaintiff brings one civil action in which he alleges all the facts showing himself entitled to both the equitable and the legal reliefs needed to com- plete his legal right, and asks and obtains a double judg- ment, granting, first, the proper equitable, remedy, and secondly, the legal remedy, by which his juridical position with respect to the subject-matter is finally perfected ;ia §87, 1 As illustrations, see Laub v. Buckmiller, 17 N. Y. 620, 626; Lattin V. ]\IcCarty, 41 N. Y. 107, 109; N. Y. lee Co. v. N. W. Ins. Co., 23 N. Y. 357; Cone v. Niagara Ins. Co., 60 N. Y. 619; Turner v. Pierce, 34 Wis. 658, 665; Gray v. Dougherty, 25 Cal. 266; Henderson v. Dickey, 50 ]\ro. 161, 165; Guernsey v. Am. Ins. Co., 17 Minn. 104, 108. But see Supervisors v. Decker, 30 Wis. 624. §87, (a) The text is quoted and Wash. 74, 70 Pac. 264, for the facts followed in Browder v. Phinney, 30 of which see post, § 183, note. § 88 EQUITY JUEISPRUDEN-CE. 100 or he may simply demand and recover a judgment confer- ring only the final legal remedy, the preliminary equitable relief being assumed as an essential prerequisite to the recovery, but not being in terms awarded by the court.^ It follows, as an incident of this union of rights and reme- dies in one action, that all occasion for the ancillary or provisional equitable remedy of injunction to restrain the defendant from proceeding at law is often, and indeed gen- erally, avoided in this class of cases. § 88. The results of this reform in the procedure might be described with much more detail; but I have already accomplished my purpose, which was to indicate some of the great changes made by judicial decisions and by acts of the legislatures in the relations formerly subsisting be- tween law and equity, and in the body itself of equity juris- prudence. The foregoing sketch, mere outline as it is, also shows very plainly that a treatise which would accurately represent to the reader the equity jurisprudence of the United States, must conform to modem facts, rather than follow ancient traditions. It must recognize the. existing condition, both of the law and of equity, the limitations upon the chancery jurisdiction, the alterations made by American legislation, institutions, and social habits. Many doctrines and modes of applying the jurisdiction which were important at an earlier day, and are perhaps still prominent in England^ have become practically obsolete in this country, while others have risen in consequence, and are constantly occupying the attention of the courts. It is my purpose to discuss and describe the equity jurispru- dence as viewed in this light, and to present the system which is now administered by the state and national courts of the United States. It is true that the fundamental prin- ciples are the same as those which were developed through §87, 2 See BidweU v. Astor Ins. Co., 16 N. Y. 263, 267; Phillips v. Gorham, 17 N. Y. 270 ; Caswell v. West, 3 Thomp. & C. 383 ; McNeady v. Hyde, 47 Cal. 481, 483 ; Sternberger v. McGovem, 56 N. Y. 12, 21. lUl THE CONSTITUENT PAETS OF EQUITY. §§89,90 the past centuries by the English chancery; but the appli- cation of these principles, and the particular rules which have been deduced from them, have been shaped and deter- mined by modern American national life, and have received the impress of the American national character. SECTION IV. THE CONSTITUENT PARTS OF EQUITY. ANALYSIS. § 89. Object of this section. §§90,91. Eights are either "primary" or "remedial"; each described. §92. Divisions of "primary" rights, viz: 1. Those concerned with per- sonal status; 2. Those concerned with things. §§93-95. Two general classes of rights concerned with things, viz.: "real" and "personal"; each described. §§ 96, 97. What of these kinds of rights are embraced within equity; both "primary" and "remedial." §§98-107. I. Equitable primary rights, kinds and classes of. §§ 108-116. II. Equitable remedial rights, kinds and classes of. § 112. General classes of equitable remedies. §§ 113-116. Mode of administering them. § 116. How far legal and equitable modes can be combined. § 117. Recapitulation. § 89. Object of This Section. — I have thus far described the historical origin of equity, and its general nature con- sidered simply as a separate department of the national ju- risprudence, and in its relations with the other department called the ''law." It is necessary now to make a closer investigation into the internal elements and features of equity, and to determine its constituent parts, — the char- acter of the rights and duties created by its doctrines and rules. § 90. Classes of Rights. — ^Laying out of view the rules which form the ''public law" and the "criminal law," all the commands and rules which constitute the ' ' private civil law" create two classes of rights and duties, the "pri- mary" and the "remedial." The primary rights and du- § 91 EQUITY JUIIISPRUDENCE. 102 ties form tlie body of the law; tliey include all the rights and obligations of property, of contract, and of personal status; they are the very end and object of all law. If mankind were so constituted that disobedience to legal rules was impossible, then the law would be entirely made up of the rules which create these primary rights and duties. But since all these primary rights and duties may be violated, another branch of the law becomes necessar}^, which may enforce obedience by means of the "Remedies" which it provides. All possible remedies are either substi- tutes or equivalents given to the injured party in place of his original primary rights which have been broken, or they are the means by which he can maintain and protect his primarj^ rights in their actual form and condition. Reme- dial rights are those which a person has to obtain some appropriate remedy when his primary rights have been vio- lated by another. Remedial duties are those devolving upon the wrong-doer in such case to give the proper remedy prescribed by law. § 91. Primary and remedial rights and duties stand towards each other in the following relations : Every com- mand or rule of the private civil law creates a primary right in one individual, and a primary duty corresponding thereto resting upon another person or number of persons. These rights and duties are, of course, innumerable in their variety, nature, and extent. If a person upon whom a pri- mary duty rests towards another fails to perform that duty, and thereby violates the other's primary right, there at once arise the remedial right and duty. The one whose primary right has been violated immediately acquires a secondary right to obtain an appropriate remedy from the wrong-doer, while the wrong-doer himself becomes sub- jected to the secondary duty of giving or suffering such remedy.^ It is the function and object of courts, both of §91, 1 See 2 Austin on Jurisprudence, pp. 450, 453; vol. 3, p. 1G2; Pomeroy on Specific Performance of Contracts, § 1; Pomeroy on Reme- dies and Remedial Rights, §§1, 2. 103 THE CONSTITUENT PARTS OF EQUITY. § 92 law and of equity, to directly enforce these remedial rights and duties by conferring the remedies adapted to the in- jury, and thus to indirectly maintain and preserve inviolate the primary rights and duties of the litigant parties. It is plain from this anal^^sis that the nature and extent o:^ reme- dial rights and duties, and of the remedies themselves, must depend upon two distinct factors taken in combination, namely, the nature and extent of the primary rights which are violated, and the nature and extent of the wrongs in and by which the violation is effected. The same primary right may be broken by many kinds of wrong-doing; and the same wrongful act or default may invade many differ- ent rights. The wrongs which are breaches of primary rights may be either positive acts of commission or nega- tive omissions; their variety, form, and nature are prac- tically unlimited, and no classification of them is necessary for the purposes of this discussion. § 92. Primary Rights. — ^A very general analysis and classification of Primary Eights and Duties will, however, be essential to an accurate notion of the constituent parts of equity. The rules and their resulting primary rights and duties which make up the private municipal law — omitting, as before stated, the public and the criminal law — fall by a natural line of separation into two grand divi- sions, namely: 1. Those directly and exclusively concerned with or relating to Persons; 2, All the remaining portions, which, in a broad sense, relate to or are concerned with Things. The first of these divisions, under a natural and logical system of arrangement, comprises only those rules the exclusive object of which is to define the status of per- sons ; or in other words, those which determine the capaci- ties and incapacities of persons to acquire and enjoy legal rights, and to be subject to legal duties.^ In the United States, where nearly all distinctions of class have been § 92, 1 See 2 Austin on Jurisprudence, pp. 10, 382, 386, note, 412; vol. 3, pp. 170-172. § 93 EQUITY JURISPRUDENCE. 104 abolished, and all persons sui juris stand upon an equality with respect to their capacity of enjoying civil rights, and of being subject to civil duties, this division contains but a very small part of the law, as compared with the corre- spondijig department in the Eoman law, or even in the existing law of many European countries. It also follows, as a necessary consequence of this principle of classifica- tion, that most of the matter which Blackstone, and after him Kent and other institutional writers, have treated as belonging to the so-called ''Eights of Persons," has been misplaced. Such matter has no connection whatever with personal status or capacity, and if any scientific or consis- tent system of arrangement is pursued, it plainly belongs among those rules which relate to Things.^ § 93. The primary^ rights embraced in the second grand division of the law — those concerned with or relating to Things — are naturally separated into two principal classes, namely, Eights in rem, or Eeal rights, and Eights in personam, or Personal rights. Eights in rem, or real rights, are those which, from their very nature, avail to § 92, 2 Simply as illustrations of this improper classification, and with- out attempting to enumerate all the cases, I mention the following: All the rules concerning the property and contracts of married women, and the contracts actually made by infants, have no proper place in the diW- sion which treats of the "Law as to Persons"; they form a part of the law concerning Things, in exactly the same manner, and for exactly the same reason, that the rules regulating the property and contracts of adult men or of single women belong to the law of things. The same is true of the rules defining rights which Blackstone calls "absolute rights of persons," but which are no more absolute than their rights of property, or rights growing out of contract. The rules defining the rights and duties existing between husband and wife, parent and child, guardian and ward, master and servant, also come within the law concerning things, as truly as do those which define the rights and duties existing between the parties to any and every contract. The subject of corporations, with all of its ramifications involving every department of the private Municipal Law, has not even the semblance of belonging to the division which comprises the "Law concerning Persons." 105 THE CONSTITUENT PARTS OF EQUITY. § 94 their possessor against all mankind, and a correlative duty rests alike upon every person not to molest, interfere with, or violate the right. Rights in personam, or personal rights, are those which avail to their possessor against a specified, particular person, or body of persons only, and the correlative duty not to infringe upon or violate the right rests alone upon such specified person or body of persons. § 94. Real Rights. — The first of these classes, the rights in rem, embraces three distinct genera, which differ from each other in the subject-matter over which the rights ex- tend, but not in the essential nature of the rights them- selves. These three genera are: 1. Rights of property of every degree and kind over lands or chattels, things real or things personal; 2, The rights which every person has over and to his own life, body, limbs, and good name; 3. The rights which certain classes of persons, namely, hus- bands, parents, and masters, have over certain other per- sons standing in domestic relations with themselves, namely, wives, children, and servants and slaves. In all kinds and degrees of property the right plainly avails to its possessor over the subject-matter — the land or the chattel — against all mankind, and a corresponding duty rests upon every human being not to interfere with or molest him in the enjoyment of the property. The right which every person has over his own life, body, limbs, or good name is of the same general nature. It imposes an equal duty upon every one not to injure, or in any manner disturb or molest, the possessor of the right in the free use and enjoyment of his own life, body, limbs, or good name. The rights of the husband, parent, or master over the wife, child, or servant are in our law very meager and limited, but so far as they exist at all, they resemble the more com- plete rights of property, because they avail against all man- kind, and impose an equal duty upon every human being. Thus the husband is, by virtue of this right, entitled to the ^ 95 EQUITY JUIilSPKUDENCE. 106 society of his wife, and the father is entitled to the services of his infant children, while a duty rests upon every person not to violate these rights by enticing away, seducing, or injuring the wife or child. This latter group of rights must not be confounded with those which the husband and wife, parent and child, master and servant, hold against each other, and which resemble in their nature the rights arising from contract. § 95. Personal Rights. — The second class, rights in per- sonam, personal rights (caUed by the Roman law ''Obliga- tions") includes two distinct genera, namely: 1. Rights arising from contract ; and 2. Rights arising, not from con- tract, but from some existing relation between two specific persons or groups of persons, which is generally created by the law. In every case of contract the right is held by one of the contracting parties and avails to him against the other party alone, while the corresponding duty rests only upon that other party, and not upon every human being. As contracts must of necessity be made between specified determinate persons, it follows that the rights and duties arising from contract must always avail against and rest upon some particular, definite person or number of persons. The same is true of the rights and duties arising from special relations existing between particular persons, cre- ated, not by contract, but by the law. The legal effect of these special relations is so similar to that produced by contract, that the rights flowing from them were said by the Roman law to arise from quasi contract (quasi ex con- tractu). The important and ordinary examples of this genus are the rights and duties against each other subsist- ing between husband and wife, parent and child, guardian and ward, executors or administrators and legatees, dis- tributees, or creditors, and in many cases between trustees and cestuis que trustent. This general classification em- braces all primary rights and duties, both legal and equi- table, which belong to the private civil law. 107 THE CONSTITUENT PAETS OF EQUITY. §§96,97 § 96. Equitable Rights. — The foregoing analysis will aid us in forming a clear and accurate conception of the con- stituent elements which make up the equity jurisprudence. Comparing the two great divisions of the private municipal law, law and equity, are they antagonistic, or simply com- plementary to each other? or does one merely occupy a sphere which the other does not? Are the rules creating the primary rights and duties embraced in the law different from the same class of rules, rights, and duties embraced in equity? Or does the distinction lie solely in the remedial rights and remedies which arise from the violation of rules common to both, and in the judicial modes by which these remedies are obtained? Equity does certainly deal largely in remedies and rights to them, and the opinion has been maintained by some modern writers, that it consists in nothing else ; that all the rights peculiar to it and which it confers are remedial rights, — rights to obtain certain forms of remedy unknown to the law. That this opinion is a mistaken one is clearly demonstrated by an examination of the doctrines and rules of equity as now established, and the results which they have produced. § 97. Equity, as a branch of the national jurisprudence, and so far as it differs from the law, consists in fact of two parts, two different kinds of rules and rights. First, it contains a mass of rules which create primary rights and duties, — entirely irrespective of the remedies, — which are different from the corresponding rules, rights, and duties, with respect to the same subject-matter, contained in and enforced by the law. Secondly, it contains another mass of rules defining and conferring a variety of special remedies and remedial rights, both of which are to a very great extent unknown to the law. These remedies and rights to them are peculiarly ''equitable," in contradistinction to those of the law, and irrespective of any difference in the primary rights for the violation of which they are granted. There may be four kinds of cases arising in the administra- § 97 EQUITY JURISPRUDENCE. 108 tion of tlie equity jurisdiction. 1. The primary right of the complaining party which has been broken may be purely legal, — that is, a right which the rules of law confer, — while his remedial right and the remedy which he obtains may be entirely equitable, recognized, and given by equity alone. 1 2. His primary right which has been violated may be one which the rules of equity alone create, while his remedial right and remedy may also be only known to equity. 2 3. His primary right broken may be entirely equi- table, but his remedial right and remedy may be legal, such as are recognized, enforced, and granted by the law.3 4. In some cases, few in number, his primary right may be legal, while his remedial right and remedy are also § 97, II give simple illustrations of these four classes. Of the first class is a suit by one who holds the legal title to land, — his primary right, of course, being legal, — to restrain the commission of waste upon it, or of trespasses doing irreparable damage; also the suit by the owner in fee of land in possession, to declare his own title against other claimants not in possession, whether their claims be legal or equitable. This latter kind of remedy is given by statute in many states. It is very plain in these eases that the plaintiff's estate and right are wholly legal, and the remedies are clearly equitable. The instances of this class are very numerous. § 97, -2 As simple illustrations : A suit by the vendee in a parol contract for the sale of land part performed, to obtain a specific performance. The right and estate under the contract are recognized by equity alone, and the remedy is purely equitable. Also a suit brought by a mortgagor of land who has made default, to redeem. According to the original legal and equitable doctrines, the estate of such mortgagor is purely equitable. Ac- cording to the doctrine prevailing generally in this country, the estate of the mortgagor is legal, and the case would fall within the first class. Suits by which a plaintiff's equitable title is turned into a legal estate, by the remedy of reformation, cancellation, and the like, also belong to this second class. § 97, 3 In this class are some suits for accounting, the plaintiff's claim or interest in the fund or other subject-matter being equitable, and the accounting and pecuniary recovery being a legal remedy ; also many suits in which the plaintiff's interest is equitable, and he recovers damages; also suits, by an equitable assignee of a fund in the hands of a third person, to recover the amount thereof, where the plaintiff's ownership is wholly equitable, but his relief is simply a recovery of a certain sum of money. 109 THE CONSTITUENT PARTS OF EQUITY. § 98 legal, such as are administered by courts of law."* The peculiar feature which distinguishes equity from the law does not therefore consist solely in the fact that it pos- sesses remedies which the law does not admit, nor solely in the fact that it creates and confers primary rights and duties different from any which the law contains, but in both these facts combined. These two elements will be examined separately. § 98. I. Equitable Primary Rights. — Equity consists in part of rules creating primary rights and duties differing from those relating to the same subject-matter, which are purely legal. Kecurring to the classification given in a former paragraph (§ 92), it will enable us to fix the limits of these primary rights, and to determine the classes in which they are all found, with great ease and precision. No equity primary rights belong to the first grand division of rights relating to or concerned with the status of per- sons. All the rules which define the capacities and incapa- cities of persons to acquire rights or to be subject to duties are strictly legal. The only apparent exceptions to this proposition are the statutory special proceedings for de- termining whether a person is a lunatic, or non compos mentis, or a confirmed drunkard, and the statutory suits for divorce, which in many of the states are confided to the Chancellor, or to a judge or court possessing equity powers. But in the first place, these proceedings are wholly statutory, and do not belong to the equity jurisdic- tion as such; and in the second place, they are wholly remedial.^ All the primary rights, therefore, which form § 97, 4 The suits of this class are generally, if not always, actions for accounting, in which the rights and interests in the subject-matter are purely legal, and the action is brought in equity merely for convenience. The accounting and recoveiy of money are of course a legal remedy. The case of an ordinary suit to settle accounts among partners, where neither of them is insolvent, and no equitable liens or claims to marshal the assets arise, is a familiar example. § 98, 1 These proceedings are in truth remedies ; they are intended to ascertain and establish the status of lunacy, unsoundness of mind, etc., § § 99, 100 EQUITY JURISPBTJDENCE. 110 a part of equity are referable to the second division of Eights relating to Things. § 99. From this division, also, there must be a process of elimination. In the department of Real rights, Rights in rem, very important and broad limitations are to be made. No equitable primary rights are contained in the second of the three genera into which real rights are divided, — or those which a person possesses over his own life, body, limbs, or good name. All the rights of this kind are purely legal ; they are the very flower and fruit of the common law, — its highest excellence; and equity does not intrude upon this peculiar field of the law. Nor are any equitable primary rights contained in the third of these genera, — the rights held by certain classes of persons over certain other persons occupying special domestic relations to\Yards themselves. The rules which define these rights, and determine the powers of husbands over their wives, parents over their children, guardians over their wards, masters over their servants, belong exclusively to the do- main of the law ; equity does not interfere with these purely personal relations. It is only when some property rights or questions concerning property arise between husband and wife, parent and child, guardian and ward, that equity can possibly have jurisdiction, and even in such cases the jurisdiction does not extend to the merely personal relations.^ § 100. We are now prepared by this process of elimina- tion to define with exactness the classes of primary rights and duties which alone come within the domain of equity, or to dissolve the status of marriage; but they do not determine the capacities or incapacities of hmatics, etc., — all the rules which detennine who are lunatics, insane, married, etc., and their capacities, are wholly legal, and not equitable. § 99, (a) The text is cited to this bilt v. Mitchell, 71 N. J. Eq. 632, 63 effect in Lombard v. Morse, 155 Atl. 1107; reversed on appeal, 72 Mass. 136, 14 L. R. A. 273, 29 N. E. N. J. Eq. 910, 14 L. R. A. (N. S.) 205. The text is quoted in Vander- 304, 67 Atl. 97. Ill THE CONSTITUENT PABTS OF EQUITY. § 101 and thus form a part of its jurisprudence. Among the rights in rem, real rights, it is only those of the first genus, the rights of property, which do or can come within the scope of equity. Among the rights in personam, personal rights, both of the genera, those arising from contract and those arising from particular relations subsisting between two or more specific persons, may come within the domain of equity. The rights and duties of the parties growing out of contracts, and especially those. growing out of cer- tain determinate relations not based upon contract, but directly concerned with property, such as trustee and cestui que trust in all its forms, guardian and ward, executor or administrator and legatees, distributees, or creditors, and the like, constitute a large and important part of the pri- mary rights falling under the equitable jurisdiction. Hav- ing thus referred the primary rights which equity creates to their general classes, I shall now describe with more of detail their essential nature and qualities. § 101. It must be premised that in most instances the legal primary right, and the corresponding but different equitable primary right, arise from the same facts, circum- stances, acts, or events which are the occasion of both. But in some instances, facts, circumstances, or events which are not the occasion of any legal right at all give rise to a primary right in equity.^ With respect to the equitable primary rights taken as a whole, it is proper to say that most of them are simply different from or addi- tio7ial to those which exist at law; they do not contradict any rules upon the same subject-matter which the common § 101, 1 A familiar example will illustrate both of these cases. From the same fact, namely, a valid written contract for the sale of land, there arise the legal right of the vendee, and also his very different equitable right. From a verbal contract for the sale of land when part performed, there arises no legal right whatever; but these facts, the verbal contract together with the part performance, are the occasion of an equitable right in the vendee which is even a right of property, an equitable estate in the land itself. § 102 EQUITY JURISPKUDENCE. 112 law provides; but they are supplementary, touching. upon particulars in relation to which the law is silent. Between this class of equitable rights and the corresponding legal rights there is, therefore, no conflict; each is absolutely true at all times and in all places ; equity courts recognize and administer the one, and law courts the other, without clashing or discord. With respect to another portion of these primary equitable rules and rights, it must be said that they are not merely additional to, but they are in actual conflict with, the legal rules and rights concerning the same subject-matter, or arising from the same circum- stances; between the kind of equitable rules and rights and the corresponding portions of the law, there is, therefore, an antagonism ; the equity courts admit and uphold a par- ticular right as resulting from a certain state of facts, which the law courts not only refuse to recognize, but which they would deny and oppose. This contrariety existed to a much larger extent in the infancy of the system than it does now; it has gradually become less as the law itself has grown more liberal and equitable. That there should be any such conflict between two departments of a mu- nicipal law is undoubtedly a blemish upon the national jurisprudence; but this condition had a strictly historical origin, and the very progress towards perfection largely consists in the elimination of these instances of antagonism. It should be remembered, also, that equity sometimes fur- nishes its remedies for the violation of primary rights* which are strictly legal, as, for example, in many cases of accounting. § 102. A few examples will serve to illustrate the fore- going description of equitable rules and rights, and will exhibit its correctness in the clearest manner. Although the first of the cases selected no longer exists, it is none the less appropriate for the purpose of showing the exact nature of equitable doctrines in their relations with the law. As has already been mentioned, at an early day the 113 THE CONSTITUENT PAETS OF EQUITY. § 102 law declared that when a debtor on a sealed obligation had paid the debt, but had failed to take an acquittance under seal, or a surrender of the instrument, he was still liable, and the creditor could recover the amount a second time by action. Equity interfered and gave the debtor the remedy of a perpetual injunction against any action at law, and perhaps the delivery up or cancellation of the bond. It is not the form of the remedy to which I now call atten- tion, but the primary equitable right for the maintenance of which the remedy was given. Compare the rights and duties of the two parties at law and in equity. The law said that notwithstanding the payment already made, the primary right of the creditor arising from the contract to demand the money, and the primary duty of the debtor to pay it, still existed in full force, and it therefore gave the remedial right of an action to collect the debt. Equity said the exact opposite of this. It declared that the primary right of the creditor and the primary duty of the debtor had been ended; that the obligation of the debtor to pay had been destroyed, and in its place there had arisen a right to have the evidence of that obligation canceled or to have evidence of the payment created in a formal manner. It therefore gave to the debtor the remedial right and the remedy of an injunction and of a cancellation. It is an entirely mistaken and even absurd explanation of this and other analogous cases, to assert that equity simply granted a remedy which the law did not give. Remedies are not conferred by equity courts, any more than by law courts, unless a primary right and duty exist, which have been violated, so that a remedial right arises from such viola- tion. Equity did not, in this case, interpose its remedy in favor of the debtor for the violation of any legal right; for the law most peremptorily affirmed that the primary right of the creditor, which it gave him on the occasion of the sealed contract being executed, was in full force, and that the primary duty which it imposed upon the debtor 1—8 § 103 EQUITY JURISPRUDENCE. 114 remained unaffected. Equity as empliatically denied all this, and asserted that no such primary right and duty were left existing, but that the position of the two parties had been exactly reversed. There was a plain and direct conflict in the primary rights and duties flowing from the same facts and events. It is true, this particular instance of antagonism no longer exists, since the absurd rule of the law has long been changed, so as to harmonize with the equitable doctrine ; but I have thus dwelt upon the case at large, because it is a most admirable illustration of the class of equitable primary rights which are in conflict with, and not merely supplementary to, the legal primary rights resulting from the same circumstances. § 103. I give another example of the same class. Under the prohibition of the Statute of Frauds, a contract for the sale of land, when not in writing, cannot be enforced in law, even though part performed. It makes no difference whether the statute says, as in England and in some of the states, that no action can be maintained on such an agree- ment, or says, as in the other states, that the agreement is void ; the result is practically the same in either form of the statute : the verbal contract is no contract at law, but is simply a nullity. ^ Equity speaks a very different language. It says that such a verbal contract, if part performed in a proper manner, shall be enforced. The processes of rea- soning through which courts of equity have reached this § 103, 1 1 am, of course, aware of the theory so often stated by courts, that the statute only affects the evidence, and not the right. But a right which cannot under any possible circumstances be enforced is certainly no right. This purely technical doctrine in relation to the statute was invented in order to admit a legal basis for certain collateral results flow- ing from a verbal contract; it has never been carried to the extent of maintaining that any legal right arose from such an agreement. It is strictly correct, therefore, to say that with either form of the statute no legal primary right results from a verbal contract within the statute ; for if there were any such right, its violation would give rise to a legal remedy, which is impossible. 115 THE CONSTITUENT PARTS OF EQUITY. § 103 conclusion, and the theory which they have adopted to reconcile their judicial action with the prohibitions of the statute, are wholly immaterial; the result is patent upon any theory, that equity from certain acts and events creates primary rights and duties in the parties .diametrically op- posed in their nature to those which the law creates on the occasion of the same facts. The law declares that from the verbal contract, although part performed, no primary right arises in favor of either party, and no corresponding duty devolves upon either; and if either refuses to do what he has thus verbally promised, the law admits no remedial right in the other, and gives him no remedy! Very different is the result in equity. Whatever be the grounds of its action, the plain fact is, that when such a verbal agreement has been properly part performed, say by the purchaser, equity recognizes in him exactly the same primary right which would have existed if the contract had been written, — the right to have the very thing done which was agreed to be done, — and devolves upon the vendor exactly the same duty which would then have rested upon him ; and if this primary right or duty is vio- lated by the vendor's refusal to perform, equity gives to the vendee its remedy of a specific enforcement. The same is true when the part performance has been by the vendor. In this instance, also, the primary rights and duties created by equity are not only additional to, but in direct conflict with, those created by the law between the same parties under the same circumstances.^ In both the foregoing examples the equitable rights and duties belong to the class of ''Personal," — Rights m personam, being against a specific or determined person. § 103, (a) Equitable primary Sanguinetti v. Eossen, 12 Cal. App rights, arising from part perform- 623, 107 Pae. 560; in Miller v. Jack ance of parol contract for sale of son Township, 178 Ind. 503, 99 N. E land, in direct conflict with legal 102. Cited, also, in D'Elissa v primary rights. This paraiiraph is D'Amato, 85 N. J. Eq. 466, 97 Atl cited, by way of illustration, in 41. § lOi EQUITY JUKISPRUDENCE. 116 § 104. Anotlier remarkable example of equitable primary lights, in direct conflict with those created by the law under the same facts, is shown in those contracts of married women which are treated as valid and enforced by equity. At the common la^w every agreement of a married woman was simply a nullity, not merely voidable, but absolutely void. Equity did not in a direct manner abolish this legal dogma. It did, however, in the cases reached by its doc- trine, create a primary right and duty from the contract, which, being violated, it enforced in its own manner and by its own peculiar remedy; it even enforced an agreement between the husband and wife, if beneficial to her rights of property. So far as equity went, there was thus a direct antagonism between its rules and those of the law. The law said most peremptorily that no right or duty arose from the transaction. Equity said that the contract was the occasion of a full right and duty of performance, and although in deference to the common law it did not enforce the duty against the wife personally, it enforced it against her separate estate, upon which it was a charge. And in agreements made by the married woman for the benefi^t of her separate estate, equity gave her its remedy of specific performance.! * § 104, 1 I add one more striking illustration. When there are two or more joint promisors and debtors, — A, B, and C, — and one of them, C, dies, then at the common law all his liability ceases absolutelj'. The cred- itor can maintain no action at law, under any circumstances, against his personal representatives to recover the debt or any portion thereof; the creditor's sole primary right growing out of the original contract, and his sole remedy by action, are against the survivors, A and B. Equity, how- ever, has altered these relations. Equity regards the original demand of the creditor as still subsisting against the estate of the deceased joint debtor, C, and such estate as still remaining bound by the obligation; and therefore enables the creditor to maintain a suit against the representa- tives of C, for the purpose of recovering the amount due. Here the antagonism is plain and direct; and it makes no difference whether we § 104, (a) This paragraph is cited, arguendo, in Miller v. Jackson Town- ship, 178 Ind. 503, 99 N. E. 102. 117 THE CONSTITUENT PARTS OF EQUITY. § 105 § 105. I pass to examples of other kinds. Wherever the books or the courts speak of ''equitable estates," either in land or in chattels, as held by a person, there are in reality equitable real rights, rights in rem, rights of prop- erty, in the land or chattels, different from or additional to the rights arising from the same facts which the law con- fers upon the same party. The kinds and degrees of these equitable rights of property are numerous, ranging from the most complete, beneficial ownership, simply wanting the legal title, through various grades to mere liens; the spe- cial rules concerning them constitute an important part of equity jurisprudence. I shall mention a few examples for purposes of illustration. The most familiar case in this country is that of the ordinary executory contract for the sale of land. The law recognizes from this transaction nothing but "personal" rights and duties. As long as the agreement remains executory, the vendee acquires no right of property in the land, nor the vendor in the pur- chase-money; each party has the right against the other that the contract shall be fulfilled according to its terms; but for the violation of this primary right the only legal remedy is a pecuniary compensation. The view which equity takes of the juridical relations resulting from the transaction is widely different. Applying one of its fruit- ful principles, that what ought to be done is regarded as adopt the English rule that the creditor may sue the representatives of the deceased at his election, or the rule prevailing in some of our states, that the creditor can only sue C's representatives, when he is unable to enforce his demand against the survivors. In either form of the rule, equity regards the primary right of the creditor gi-owing out of Ihe original contract, and the obligation of the deceased debtor, as still exist- ing, and therefore gives its remedy by suit; while the law regards such right and obligation as wholly gone, and therefore refuses any remedy. It is true that the legislature, in some states, has abrogated this legal doctrine, and has made the estate of the deceased joint debtor liable at law. Similar remarks might be made concerning the case of two or more joint creditors, where one of them dies, and the contrasting doctrines of law and of equity applicable thereto. § 105 EQUITY JUKISPRUDENCE. 118 done, equity says that from the contract, even while yet executory, the vendee acquires a ''real" right, a right of property in the land, which though lacking a legal title, and therefore equitable only, is none the less the real, beneficial ownership, subject, however, to a lien of the vendor as se- curity for the purchase-price as long as that remains un- paid. This property in the land, upon the death of the vendee, descends to his heirs, or passes to his devisees, and is liable to the dower of his widow.* The vendor still holds the legal title, but only as a trustee, and he in turn acquires an equitable ownership of the purchase-money; his prop- erty, as viewed by equity, is no longer real estate, in the land, but personal estate, in the price, and if he dies be- fore payment, it goes to his administrators, and not to his heirs. In short, equity regards the two contracting parties as having changed positions, and the original estate of each as having been "converted," that of the vendee from per- sonal into real property, and that of the vendor from real into personal property.^ Although these primary rights which equity thus creates are very different from those which the law recognizes, there is still no conflict or antag- onism between the two.<^ While equity gives to the pur- chaser a property in the land, and furnishes him with its specific remedies to maintain and enforce that ownership, at the same time it does not deny nor interfere with his legal primar}'' right against the vendor personally arising from the contract. The vendee in fact has an election. Relying upon the mere personal primary right of contract, he or his executors or administrators may sue in a court § 105, (a) The text is quoted in Pac. 732. The language of the text Parks V. Sraoot's Admrs., 105 Ky. 63, is stated, in substance, in Ayles- 48 S. W. 146; Walker v. Goldsmith, worth v. Aylesworth (Ind. App.), 14 Or. 125, 12 Pac. 537. 106 K E. 907. § 105, (b) The text is quoted in § 105, (c) See, further, as to the Parks V. Smoot's Admrs., 105 Ky. 63, equitable estates arising from the 48 S. W. 146; Clapp v. Tower, 11 executory contract for the sale of N. D. 556, 93 N. W. 862; cited, land, post, §§367, 368, 372, 1160, Schenck v. Wicks, 23 Utah, 576, 05 1161, 1260, 1261, 1263, 1406. 119 THE CONSTITUENT PARTS OF EQUITY. §§106,107 of law to recover damages for a violation of the agree- ment; or relying upon the real right, his ownership of the land, he or his heirs may sue in a court of equity, and pro- cure his ownership to be fully established, and the legal muniments of his title perfected. § 106. In all eases of implied trusts there is the same diiference between the legal primary right, purely "per- sonal" in its nature, and the equitable estate, or right of property. One instance will illustrate the entire class. A receives from B a sum of money under an agreement to purchase therewith a parcel of land for B, and to take the conveyance in the latter 's name; he purchases the land, but takes the deed to himself in violation of his duty, and with the design of obtaining all the benefit and of retaining the ownership. The law under these and all similar cir- cumstances sees only a contract, express or implied, be- tween the parties, with the purely '^ personal" rights which spring from contract. B has no property in the land, and his only legal remedy is compensation by dainages. In equity, however, B acquires a "real" right, an estate in the land, which is regarded as the true and beneficial owner- ship, with all the incidents of real property; and he can establish that ownership by compelling A to convey the legal title and deliver the possession. § 107. The same and sometimes even a greater differ- ence between the legal and equitable rights exists in all in- stances, so common in England, but no longer permitted in many American states, but seldom known, even if theo- retically possible, in the others, of express passive trusts in lands. At law the cestui que trust never acquires any property in the land so long as the trust is subsisting, and in many cases he obtains no right whatever, either of prop- erty or of contract. In equity, however, the cestui que trust is the real owner ; his primary right ^is one of prop- erty in the land, either in fee, for life, or for years. An- other exceedingly instructive example is the estate of the § 108 EQUITY JURISPRUDENCE.' 120 mortgagor created by equity, while the law, unless altered by statute, regards all the property as vested in the mort- gagee. I need not add any more examples. I have already given a sufficient number and variety to illustrate and show the truth of my main proposition, — that equity is not wholly a system of remedies; but that it consists in part of primary rights and duties, and of the rules concerning them, differing from, sometimes conflicting with, but more often additional to, the primary rights, duties, and rules relating to the same matters established by the law. § 108. II. Equitable Remedies. — Equity consists, to a very great extent, of Eemedies and Eemedial Eights dif- ferent from any which the law administers by means of its ordinary actions ;i although it does, under certain circum- § 108, 1 I intentionally pass by the specific legal remedies which the law gives by means of Mandamus, Quo "Warranto, and certain other special proceedings, and which have some general resemblance to the reliefs ■granted by equity. The principle of equitable primary rights, as distinguished from legal primary rights, and of equitable remedies, was very clearlj' recognized and illustrated by the doctrine concerning the liability of a married woman's separate estate to be appropriated in equity in satisfaction of her con- tracts, by the English Court of Appeal in the veiy recent case of Ex parte Jones, L. R. 12 Ch. Div. 484, 488-490. Speaking of the nature and grounds of this equitable liability, James, L. J., said : "If she is not liable to be sued as a feme sole in what used formerly to be called a common- law action, she is not liable to be sued for a debt at all. In equity the liability was to have her separate estate taken from her for the benefit of the person with whom she had contracted on the faith of it. That was a special equitable remedy, arising out of a special equitable right. But the married woman who contracts in that way is not a debtor in any sense of the word" (that is, she is not liable under a contract binding at law, which creates the legal liability of indebtedness and the corresponding legal right of a creditor). Brett, L. J., said: The equitable procedure "did not enable any one to sue a married woman as -iipon and for a debt in a court of equity. It was a peculiar remedy against the separate property of the married woman so long as it existed, but it was not a remedy against her as and for a debt." Cotton, L. J., said : "A debtor must be a person who can be sued per- sonally for a debt, and who is liable to all the consequences of a personal 121 THE CONSTITUENT PARTS OF EQUITY. § 108 stances, grant remedies which are legal in their nature, and are capable of being conferred by a judgment at law, namely, a mere recovery of money, or of the possession of specific land or chattels. Many of the ordinary equitable remedies are derived directly from the nature of the pri- mary right which they are intended to protect. For ex- ample, in the case of a contract for the purchase of land, or of an implied trust in land, or of any other transaction from which the equitable primary right consists in a right of property, this equitable estate, although the real, bene- ficial ownership is subject to some great inconveniences which lessen its value, the holder of the legal title in trust for the equitable owner cannot defeat the latter 's right as long as he retains such title in his own hands, but he can convey it to another bona fide purchaser, and thus cut off the existing equitable estate. To prevent this, and to secure his full enjoyment of the property, a peculiar rem- edy is given to the equitable owner, by which he establishes his right, perfects his interest, compels a conveyance of the legal title, and a transfer of the possession, if neces- sary, and thus acquires a full and indefeasible estate, legal as well as equitable, in the land.^ A large class of reme- dies are thus based upon and exactly fitted to the nature of the primary right; these remedies are distinctively equitable ; and their intimate correspondence with the pri- mary rights which they enforce has, more than anything else perhaps, led to the mistake, alluded to in a former paragraph, of confounding all equitable primary rights judgment against him. But that is not at all the position of a married woman, even though she has separate estate. ... It is not the woman, as a woman, who becomes a debtor, but her engagement has made that par- ticular part of her property which is settled to her separate use a debtor and liable to satisfy the engagement." §108, (a) This paragraph of the a municipality), and in Tennant's text is cited in Provisional Munici- Heirs v, Fretts, 67 W. Va. 569, 1-iO pality of Pensacola v. Lehman, 57 Am. St. Rep. 979, 29 L. E. A. (N. S.) Fed. 324, 330, 13 U. S. App. 411, G25, 68 S. E. 387. (suit for specific performance against § 109 EQUITY" JURISPRUDENCE. 122 with remedial ones, and of supposing that equity is wholly a system of remedies. § 109. The distinguishing characteristics of legal rem- edies are their uniformity, their unchangeableness or fixed- ness, their lack of adaptation to circumstances, and the technical rules which govern their use. The legal remedies by action are, in fact, only two: recovery of possession of specific things, land or chattels, and the recovery of a sum of money. When a person is owner of land or of chattels in such a way that he is entitled to immediate possession, he may recover that possession; but since the action of ''Ejectment" has taken the place of the old real actions, a recovery of the land by its means does not necessarily determine or adjudge the title, and in a recovery of chat- tels by the action of replevin, the title is only determined in an incidental manner.^ For all other violations of all possible primary rights, the law gives, as the only remedy, the recovery of money, which may be either an ascertained sum owed as a debt, or a sum by way of compensation, termed damages. Equitable remedies, on the other hand, are distinguished by their flexibility, their unlimited variety, their adaptability to circumstances, and the nat- ural rules which govern their use. There is in fact no § 109, 1 It should be remembered that I am speaking of the common- law forms of action, and not of the system introduced by the I'eforraed procedure. Since in the action of ejectment the plaintiff was a fictitious person, and not the real party in interest, a judgment was no bar to any number of succeeding actions; it required a suit in equity and a perpetual injunction to restrain the continuous bringing of such actions in a given case, and to declare the title. In the American states, statutes have put a limit upon the number of separate actions which may be brought. Under the reformed procedure, the action to recover laud really has nothing in common with "ejectment"; it rather resembles the old "real action" in detennining the title as well as the possession, and it is so regarded in some of the states. But by a strange inconsistency, the statutes of other states treat it as only a simplified ejectment, and the judgment recovered by it as not finally adjudicating upon the title. In a few of the states, the old common-law "real action" is still used instead of ejectment. 123 THE CONSTITUENT PARTS OF EQUITY. § 110 limit to their variety and application; the court of equity has the power of devising its remedy and shaping it so as to fit the changing circumstances of every case and the complex relations of all the parties.^' § 110. Notwithstanding this unlimited power of expan- sion and invention, there are certain species of equitable remedies which have become well established and famil- iarly known, and which are commonly designated by the term "equitable remedies" whenever it is used. They may be separated into three classes: 1. Those which are entirely different from any kind of reliefs known and granted by the law. Of this class are the preventive rem- edy of Injunction, the restorative remedy of Mandatory Injunction, the remedies of Reformation, Specific Perform- ance, and many others.^ 2. Those which the legal proce- dure recognizes, but does not directly confer, and the bene- ficial results of which it obtains in an indirect manner. A familiar example is the relief of Rescission or Cancella- tion. A court of equity entertains a suit for the express purpose of procuring a contract or conveyance to be can- celed, and renders a decree conferring in terms that exact relief. A court of law entertains an action for the re- § 109, (a) Flexibility of Equita"ble (remedy by redemption and recon- Eemedies, and their adaptability to veyance where land has been con- circumstances. The text is quoted veyed with trust for payment of in The Salton Sea Cases, 172 Fed. surplus on sale thereof to grantor). 820, 97 C. C. A. 242 (injunction The text is cited in Boring v. Ott, against overflow of land, decree pro- 138 Wis. 260, 19 L. R. A. (N. S.) tecting all rights); in Sourwine v. 1080, 119 N. W. 865 (enjoining judg- Supreme Lodge, 12 Ind. App. 447, ment because of perjury). 54 Am. St. Rep. 532, 4;0 N. E. 646; §110, (a) This paragraph of the in Turner's Admr. v. Citizens' Bank, text is cited in Provisional Munici- 111 Va. 184, 68 S. E. 407 (devisees pality of Pensacola v. Lehman, 57 whose shares have been lost by elec- Fed. 324, 330, 13 U. S. App. 411, tion , entitled to compensation for 6 C. C. A. 349 (suit for specific per- their loss out of fund in court); in formance against a municipality). Campbell v. Alsop's Admrs., 116 Va. Cited, also, in Mc Williams v. Burnes, 39, 81 S. E. 31; in Weltner v. Thur- 115 Mo. App. 6, 90 S. W. 735; mond, 17 Wyo. 268, 129 Am. St. Rep. Shepard v. Pabst, 149 Wis. 35, 135 1113, 98 Pac. 590, 99 Pac. 1128 N. W. 158. § 110 EQUITY JUBISPRUDENCE. 124 covery of the possession of chattels, or, under some cir- cumstances, for the recovery of land, or for the recovery of damages, and although nothing is said concerning it, either in the pleadings or in the judgment, a contract or a conveyance, as the case may be, is virtually rescinded ; the recovery is based upon the fact of such rescission, and could not have been granted unless the rescission had taken place. Here the remedy of cancellation is not expressly asked for, nor granted by the court of law, but all its effects are indirectly obtained in the legal action. ^ ^ It is true, the equitable remedy is much broader in its scope, and more complete in its relief; for its effects are not confined to the particular action, but by removing the obnoxious instrument they extend to all future claims and actions based upon it. 3. Those which are substantially the same both in equity and at the law. Familiar examples of this class are the partition of land among co-owners, and the admeasurement of dower, in which the final relief granted by equity is the same as that obtained through the now almost obsolete legal actions ; 2 the process of accounting and determining the balance in favor of one or the other § 110, 1 It would perhaps be more correct to say that the legal judg- ment proceeded upon the assumption that one of the parties had himself rescinded the contract or conveyance prior to the suit, and that he was justified in so doing; but this explanation does not alter the result or modify the statement of the test. In either theory, the legal procedure recognizes the rescission as a fact, and its benefits are secured indirectly by the judgment; as in actions by defrauded vendors to recover the goods or their value. § 110, 2 The ancient legal actions of partition and admeasurement of dower, though long discarded in England, are still, retained in a modified form in Massachusetts, Pennsylvania, and perhaps in two or three addi- tional states. In other states, where the reformed procedure has not been introduced, "ejectment" is sometimes used for the same purpose. § 110, (b) Rescission at law and This paragraph is cited in Wataon in equity. The text is quoted in v. Borah, 37 Okl. 357, 132 Pac. 347 State V. Snyder, 66 Tex. 687, 18 (cancellation); Taylor v. Brown, 92 S. W. 106, 108; in Bruner v. Miller, Ohio 287, 110 N. E. 739. 59 W. Va. 36, 52 S. E. 995. 125 THE CONSTITUENT PARTS OF EQUITY. § 111 party;* and even, under special circumstances, the award of pecuniary damages expressly.^ This mode of classi- fying equitable remedies was both common and convenient while the jurisdictions of law and equity were wholly dis- tinct and confided to different tribunals, but has lost much of its efficacy since they have been conferred upon the same court, and under the reformed procedure, which coml)ines legal and equitable remedies in one action, it has become positively misleading, § 111. Abandoning, therefore, this method of arranging and describing remedies, as no longer adapted to the ad- ministration of equity jurisprudence at the present day, I shall classify them according to their essential natures. Equity has followed the true principle of contriving its remedies so that they shall correspond both to the primary right of the injured party, and to the wrong by which that right has been violated. It has, therefore, never placed any limits to the remedies which it can grant, either with respect to their substance, their form, or their extent ; but has always preserved the elements of flexibility and ex- pansiveness, 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 aris- ing, and new kinds of wrongs are constantly committed.* §110 (c) The text is cited in Eus- 54 Am. Rep. 532, 40 N. E. 646; sell V. McCall, 141 N. Y. 437, 38 quoted, also, in The Salton Sea Am. St. Kep. 807, 36 N. E. 498. Cases, 172 Fed. 820, 97 C. C. A. § 110, (d) This paragraph of the 242 (injunction against overflow of text is cited in Hicks v. Rupp, 49 land; decree protecting all rights); Mont. 40, 140 Pac. 97. Harrison v. Woodward, 11 Cal. App. § 111, (a) The text is quoted in 15, 103 Pac. 933 (suit against one Union Pacific R. Co. y. Chicago, R. I. holding papers in escrow to recover & P. R. Co., 163 U. S. 564, 16 Sup. the papers); and cited in Kessler Ct. 1173; Columbia Ave. Sav. Fund & Co. v. Ensley Co., 129 Fed. 397; etc. Co. V. City of Dawson, 130 Fed. Montgomery Light & Power Co. v. 152, 176; Harrigan v. Gilchrist Montgomery Traction Co. (Ala.), (Wis.), 99 N. W. 909; Sourwiue v. 191 Fed. 657, 664 (growing liberality Supreme Lodge, 12 Iiul. App. 447, of courts in enforcing specific per- § 112 EQUITY JURISPRUDENCE. 126 § 112. Although the number and variety of particular remedies are great, those in common use may be grouped into certain general classes according to their essential ele- ments, which, as said above, are based upon the primary right violated and the wrongful act or default in combina- tion. These classes are the following: 1. Declarative Reniedies, or those whose main and direct object is to de- clare, confirm, and establish the right, title, property, or estate of the plaintiff, whether it be equitable or legal. The remedies of this class are often granted in combination with others, and in fact they sometimes need other kinds of relief as a preliminary step to make them effective ; but on the other hand, they are often granted by themselves, unconnected with anything else. 2. Restorative Remedies, or those by which the plaintiff is restored to the full enjoy- ment of the right, property, or estate to which he is en- titled, but which use and enjoyment have been hindered, interfered with, prevented, or withheld by the wrong-doer.^ The legal remedies of this kind are simple recoveries of possession either of land or of chattels. The equitable remedies of restoration are much more various in their form and complete in their effect. Like those of the first class, they are often granted in combination with other kinds of relief, and frequently need some other special equitable remedy, such as cancellation or reformation of instruments, to remove a legal obstacle to the full enjoy- ment of the plaintiff's right, and to render them efficient in restoring him to that enjoj^ment. 3. Preventive Reme- dies, or those by which a violation of a primary right is prevented before the threatened injury is done, or by which the further violation is prevented after the injurj^ has been partially effected, so that some other relief for the formanee); Board of Commrs. v. §112 (a) The text is quoted in A. V. Wills & Sons, 236 Fed. 362 Churcliill v. Capen, 84 Vt. 104, 78 (under special circumstances, con- Atl. 734, pointing out the difference tract for construction of works between this class of remedies and specifically enforced). reformation. 127 THE CONSTITUENT PARTS OF EQUITY. § 112 wrong actually accomplislied can be granted. The ordi- nary injunction, whether final or preliminary, is the familiar example of this elass; the mandatory injunction is essentially a restorative remedy. 4. Remedies of Spe- cific Performance, or those by which the party violating his primary duty is compelled to do the very acts wliicli his duty and the plaintiif's primary right require from him. The remedies of this class are very numerous in their special forms and in respect to the juridical relations in which they are applicable. "Specific performance" is often spoken of as though it was confined to the case of executory contracts; but in reality it is constantly em- ployed in the enforcement of rights and duties arising from relations between specific persons which do not re- sult from contracts, as, for example, between cestuis que trustent and their trustees, wards and their guardians, legatees, distributees, or creditors and executors or admin- istrators, and the like.^ In these latter cases, however, as well as in that of the specific performance of an executory contract at the suit of a vendor, the form and nature of the final relief is often the same as that of accounting, pecu- niary compensation, or restoration. 5. Remedies of Ref- ormation, Correction, or Re-execution, by means of wliioh a written instrument, contract, deed, or other muniment of title, which for some reason does not conform to the actual rights and duties of the parties there'to, is reformed, corrected, or re-executed."^ Sometimes this remedy is asked for and obtained simply on its own account, merely for purpose of correcting the instrument; but it is often, and perhaps generally, obtained as a necessary prelim- inary step to the granting of a further and more substan- tial relief needed by the plaintiff, such as a restoration to full rights of property, or the specific performance of the §112, (b) The text is cited in ment lien against estate of deced- Hibernia Sav. & L. Soc. v. London ®° -'• T T T^- T n ^oo n ^ § ^^^' ^'^^ '^^^^ paragraph is cited & Lancashire Fire Ins. Co., 138 Cal. ■ -yr /-> i /m <-,• . x ' m May v. Cearley (Tex. Civ. App.). 257, 71 Pac. 334 (enforcing judg- 133 g.W. 165. § 112 EQUITY JURISPRUDENCE. 128 contract after it lias been corrected. 6. Remedies of Rescission or Cancellation, or those by which an instru- ment, contract, deed, judgment, and even sometimes a legal relation itself subsisting between two parties, is, for some cause, set aside, avoided, rescinded, or annulled.*^ This remedy, like the preceding, is sometimes conferred as the sole and final relief needed by the plaintiff, but is often the preliminary step to a more effective remedy by which his primary right is declared or restored. 7. Remedies of Pecuniary Compensation, or those in which the relief con- sists in the award of a sum of money. These remedies, whose final object is the recovery of money, are of three distinct species, which differ considerably in their external form and incidents, but which agree in their substance, — in the intrinsic nature of the final relief. They are the following : First. Those in which the relief consists simply in the recovery of a general pecuniary judgment; that is, a judgment to be enforced or collected out of the debtor's property generally, — any property which he may own liable to be taken in satisfaction. This simple pecuniar}'' recovery is, in the vast majority of cases, legal, and not equitable, but it is not unknown in equity.® A court of equity occasionally grants the relief of compensatory dam- ages in connection with some other specific relief,^ and under very peculiar circumstances it decrees the payment of damages alone. Several kinds of equitable suits are wholly pecuniary in their relief, as those for contribution and exoneration.! Secondly. Those cases in which the § 112, 1 A few well-known equitable actions are wholly pecuniary in their object and relief, although not generally described as such. For § 112, (d) This paragraph is cited in Cumberland Telephone & Tel. Co. in Watson v. Borah, 37 Okl. 357, v. Williamson, 101 Miss. 1, 57 South. 132 Pac. 347. 559. § 112, (e) The text is cited in § 112, (f ) The text is cited to this State V. Sunapee Dam Co. (N. H.), effect in Blair v. Smith, 114 Ind. 55 Atl. 899, 912, where the question 114, 5 Am. St. Rep. 593, 15 N. E. of damages in equity suits ia very 817; and to the effect that damages elaborately discussed. Cited, also, in equity are only awarded as ancil- 129 THE CONSTITUENT PARTS OF EQUITY. § 112 relief is not a general pecuniary judgment, but is a decroe of money to be obtained and paid out of some particular fund or funds. The equitable remedies of this species are many in number and various in their external forms and incidents. They assume that the creditor has, either by operation of law, or from contract, or from some acts or omissions of the debtor, a lien, charge, or encumbrance upon some fund or funds belonging to the latter, either land, chattels, things in action, or even money; and the form of the remedy requires that this lien or charge should be established, and then enforced, and the amount due ob- tained by a sale total or partial of the fund, or by a sequestration of its rents, profits, and proceeds.? These preliminary steps may, on a casual view, be misleading as to the nature of the remedy, and may cause it to appear to be something more than compensatory; but a closer view shows that all these steps are merely auxiliary, and that the real remedy, the final object of the proceeding, is the pecuniary recovery. Among the familiar examples of this species are the suit to foreclose a mortgage of land, common throughout the United States, by a sale of the mortgaged premises ; ^ the suit to foreclose a chattel mort- example, the suit by the vendor for the specific performance of an ordinary land contract is really brought for the recovery of money alone, and it differs from the suit to enforce the vendor's lien in the fact that the judgment is for the recovery of the mOney generally, and not out of tlie land itself as a special fund. § 112, 2 The strict foreclosure by which the mortgagor's equitable right of redernption is cut off, and the mortgagee's legal estate is perfected, is a remedy of an entirely different class; it is in fact a recovery of land, the acquisition of a comj^lete title, the establishment of a perfect legal ownership. lary to the main relief, and are com- § 112, (g) The text is quoted in pensatory, not exemplary or puni- Weldon v. Superior Court, 138 Gal. tive, in Karns v. Allen, 135 Wis. 427, 71 Pac. 502 (a case of equitable 48, 15 Arm. Cas. 543, 115 N. W. 357. garnishment, authorized by statute. As to compensatory damages in by a materialman, of funds due the equity, see post, § 237. contractor) ; and in Knapp, Stout & 1—9 § 112 EQUITY JURISPRUDENCE. 130 gage by a sale of the goods; a suit to enforce a vendor's lien by a sale of the land; the creditor's suit to enforce his equitable lien upon the debtor's property by sale; the suit to enforce payment of a married woman's contract by a sale of the separate estate upon which it is charged; and generally, all similar suits the object of which is to enforce an equitable lien upon a fund, and thereby to ob- tain satisfaction of the demand which it secures. Thirdly. There is also another species of pecuniary remedies, closely analogous to the last, and differing from it only in the additional element of a distribution of the final pecuniary awards among two or more parties having claims either upon one common fund or upon several funds.^ The final relief in all these cases is simply pecuniary; the amounts to which the different parties are entitled are ascertained, and are obtained by a distribution of the fund or funds upon which they are chargeable. Of this species are suits to wind up partnerships and distribute partnership assets ; to settle and distribute the personal estates of decedents; to marshal assets; and the statutory proceeding to wind up the affairs of insolvent corporations. 8. The Remedy of Accounting. This is closely analogous to the remedy of Compensation, and is generally used in connection with and auxiliary to some forms of it. It is also a legal rem- edy, but has become to a great extent equitable. It is a necessary step in many forms and varieties of pecuniary relief, and sometimes is an essential preliminary in es- tablishing rights of property in lands or chattels. 9. Remedies of Conferring or Removing Official Functions. Courts of equity are empowered by statute in many of the states to remove and to appoint trustees of private trusts, and under certain circumstances to remove and to appoint, or provide for the election of, the managing officers of private business corporations. 10. Remedies of Establish- Co, V. McCaffrey, 178 HI. 107, 69 §112, (h) The text is quoted in Am. St. Rep. 290, 52 N. E. 898 (en- Weldon v. Superior Court, 138 Cal. forcing bailee's lien in equity). 427, 71 Pac. 502. 131 THE CONSTITUENT PARTS OF EQUITY. § 113 i)ig or Destroying Personal Status. This speeios of reme- dies does not belong to the original jurisdiction of chan- cery, and so far as it exists, is wholly of statutory origin.^ I would include in it suits to obtain a divorce and to annul a marriage,J which in several of the states are entertained by equity courts, and proceedings by which a person is judicially declared to be of unsound mind or an habitual drunkard. Other species of equitable remedies have been created by statute in different states, which do not prop- erly belong to any of the foregoing classes. The most important are the proceedings for the dissolution and winding up of corporations, and of enforcing the official duties of corporate officers. The remedial powers of equity are so broad and so flexible that there may be many other special forms of remedy belonging to its general jurisdiction, but depending so closely upon the peculiar circumstances and relations of the litigant parties that they do not admit of classification. § 113. The equitable remedies also differ from the legal ones in the manner of their administration. The common- law rules of procedure are fixed, rigid, arbitrary, technical, while those of the equity suit are natural and flexible. In no features is the contrast greater than in respect to parties and to judgments. The doctrines of the common law concerning the parties to actions, their joint or several rights and liabilities, and the form of judgment based upon these respective kinds of right and liability, are the crown- ing technicality of the system, resting upon verbal prem- ises which mean nothing, and built up from these premises by the most accurate processes of mere verbal logic. It was a fundamental principle that no one could be a plain- § 112, (i) The text is quoted in vorce is a "case in equity" within Vandorbilt v. Mitchell, 71 N. J. Eq. the moaning of a constitutional pro- 632, 63 Atl. 1107; reversed on ap- vision conferring appellate jurisdic- peal, 72 N. J. Eq. 910, 14 L. R. A, tion in all cases in equity, see (N. S.) 304, 67 Atl. 97. Sharon v. Sharon, 67 Cal. 185, 7 §112, (j) That an action for di- Pac. 456, 635, 8 Pac. 709. § 113 EQUITY JUEISPEUDENCE. 132 tiff unless he was alone or jointly with the co-plaintiffs entitled to the whole recovery, nor a defendant unless he was alone or jointly with the co-defendants liable to the entire demand. The common law knew no such thing as the making a person plaintiff who did not share the right of recovery, or defendant who was not liable for the whole claim, merely for the purpose of binding him by the jiidrj- ment and cutting off any possible right on his part?- The judgment must be one single, entire recovery, both as affects the plaintiffs and the defendants ; and no one could be a plaintiff who did not thus hold the legal title, even though all beneficial interest in the cause of action be- longed to another. On this ground the assignor of a thing in action not negotiable must be the plaintiff, and the abil- ity of an assignee to bring an action is wholly the result of statute. "Where the action was by two or more plain- tiffs, the judgment was necessarily a single one in favor of all considered as one undivided body. It was impossible that each one of several plaintiffs could recover a differ- ent sum of money by way of debt or damages. Even if the action was for the possession of chattels or land, dif- ferent plaintiffs could not recover distinct chattels or tracts of land; the judgment was for all the chattels as one subject-matter, or for the whole land as a unit, and if the plaintiff's rights were different they must be undivided, so that each share, being as yet unpartitioned, should ex- § 113, 1 This rule has been changed by the new procedure as adopted in several of the western states, which very properly requires that when an action is brought by the assignee of a thing in action, except of nego- tiable paper, the assignor must be made a party either plaintiff or defendant, so that he may be heard, if necessaiy, on the question as to the validity of the alleged assignment, and any future claim against the debtor on his part may be barred by the judgment. This innovation, which strikes at the very root of the common-law theoiy as to parties and judgments, has been in operation for years without the slightest diffi- culty, and its advantages are patent. This single fact demonstrates the utter worthlessness, the mere verbal character, of the so-called legal rea- soning by which the common-law dogmas have been upheld. 133 THE CONSTITUENT PARTS OF EQUITY. § 114 tend throughout the entire mass, and the judgment be for ^11 as joint or co-owners. The same rule extended to the defendants. If there were two or more, one single judg- ment must be rendered against all; different recoveries against separate defendants in the same action were im- possible. The common law permitted no affirmative re- lief, no recovery of debt or damages, land or chattels, in favor of a defendant against a plaintiff, except perhaps in the little used and now virtually obsolete legal action of "account." Even in the case of "Recoupment of Dam- ages," which was a recent invention of the common-law courts, the demand on behalf of the defendant was only used defensively. The exceptional case of "Set-off," in which alone an affirmative recovery always pecuniary was ever possible in favor of the defendant, was wholly of a statutory origin.^- § 114. The equitable doctrines with respect to parties and judgments are wholly unlike those which prevailed at the common law, different in their fundamental concep- tions, in their practical operation, in their adaptability to circumstances, and in their results upon the rights and duties of litigants. The governing motive of equity in the administration of its remedial system is to grant full re- lief, and to adjust in the one suit the rights and duties of all the parties, which really grow out of or are connected with the subject-matter of that suit.^ Its fundamental principle concerning parties is, that all persons in whose favor or against whom there might be a recovery, however partial, and also all persons who are so interested, although indirectly, in the subject-matter and the relief granted, §113, (a) Common-law Doctrines 170 Fed. 24, 95 C. C. A. 298; in Concerning Parties and Judgments. Nichols v. Nichols, 79 Conn. 644, The text is cited in Hayden v. Doug- 66 Atl. 161; in Seiver v. Union Pac. las County, 170 Fed. 24, 95 C. C. A. E. Co., 68 Neb. 91, 110 Am. St. Rep. 298. 393, 61 L, R. A. 319, 93 N. W. 943; § 114, (a) Equitable Doctrines Con- in Sexton v. Sutherland (N. D.), 164 cernlng Parties. — The text is quoted N. W. 278. in Hayden v. Douglas County (Wis.), § 115 EQUITY JUKISPKUDENCE. 134 that their rights or duties might be affected by the decree, although no substantial recovery can be obtained either for or against them, shall be made parties to the suit; and it is not ordinarily a matter of substantial importance whether they are joined as plaintiffs or as defendants, although this question of procedure is regulated to a cer- tain extent by rules based upon considerations of con- venience rather than upon any essential requirements of the theory. The primary object is, that all persons suffi- ciently interested may be before the court, so that the re- lief may be properly adjusted among those entitled, the liabilities properly apportioned, and the incidental or con- sequential claims or interests of all may be fixed, and all may be bound in respect thereto by the single decree.^ § 115. The fundamental principle of equity in relation to judgments is, that the court shall determine and adjust the rights and liabilities concerning or connected with the subject-matter of all the parties to the suit, and shall grant the particular remedy appropriate in amount and nature to each of those entitled to any relief, and against each of those who are liable, and finally shall so frame its decree as to bar all future claims of any party before it which may arise from the subject-matter, and which are within the scope of the present adjudication.^ In rendering its de- cree, a court of equity is not hampered by any of the arbi- trary regulations which restrict the action of common-law tribunals ; and especially, it is not bound to give a single §114, (b) The text is quoted in 79 N. J. Eq. 342, 81 Atl. 36.8 (prin- Seiver v. Union Pac. K. Co. 68 Neb. ciple applied to specific performance 91, 110 Am. St. Eep. 393, 61 L. E. A. suit). 319, 93 N. W. 943 (injunction against § 115, (a) The text was quoted in a multiplicity of garnishment suits Union Mill & Mining Co. v. Dang- to reach exempt wages); in Sexton berg, 81 Fed. 73, 119, by Hawley, V. Sutherland (N. D.), 164 N. W. D. J., and the principle applied in a 278; cited in Behlow v. Fisher, 102 decree apportioning the use of the Cal. 208, 36 Pac. 509 (dissenting waters of a stream among numerous opinion; dissolution of partnership); riparian proprietors. The text is in Peeples v. Yates, 88 Miss 2S9, cited in Hayden v. Douglas County, 40 South. 996; in Day v. Devitt, 170 Fed. 24, 95 C. C. A. 298. 135 THE CONSTITUENT PARTS OF EQUITY. § 116 judgment in favor of the co-plaintiffs regarded as one body, nor against the defendants as a group of persons jointly or equally liable. In this respect it possesses a full freedom to adapt its relief to the particular rights and liabilities of each party, and to determine the special in- terests of all, so far as they are legitimately connected with the subject-matter, and properly within the scope of the adjudication. It has power to grant relief to some of the co-plaintiffs, and not to others, aiid against some of the co-defendants, and not against others; it can confer different reliefs in kind and extent to different plaintiffs and against different defendants ; it can bestow affirmative relief upon all or some of the defendants against all or some of the plaintiifs; and finally, it can determine and adjust the rights and duties of the co-plaintiffs, or of the co-defendants, as between themselves. I would not be understood as asserting that this extreme flexibility or apportionment of remedies and obligations is common in ordinary equitable suits, nor that it is without limit and control; on the contrary, it is regulated by rules of plead- ing and procedure so contrived that all parties may be in- formed of the claims made against them, and of the liabili- ties to which they are exposed. My object here is simply to state the general principles of the Equity Remedial System, and to describe the power which inheres in a court of equitable jurisdiction to mold its decree and to adjust its reliefs so as to establish and enforce the particular rights and liabilities, legitimately connected with the sub- ject-matter, and within the scope of the judgment, of all the parties to the action. The modes in which this power should be exercised according to the rules of pleading and procedure must be considered in another place. § 116. The remedial system of equity as a whole, with its great variety of specific remedies which enforce the very primary rights and duties of persons rather than give pecuniary equivalents for their ^dolation, with its power to § 116 EQUITY JURISPRUDENCE. 136 enlarge the scope of these ordinary forms of relief, and even to contrive new ones adapted to new circumstances, with its comprehensive rules concerning parties, and with its unlimited control over the form and material of its judg- ments, possesses enormous advantages over the narrow, inflexible, and artificial methods of the common law. The reformed American procedure has attempted to combine the two, or rather to enlarge the equity doctrines and rules, so that they may embrace all actions, legal as well as equi- table; and in those states where the courts have accepted and carried out the reform in its true spirit, this attempt has been successful as far as is possible from the essential elements of the two jurisdictions. A complete amalgama- tion, however, is not possible, so long as the jury trial is retained in legal actions. There is certainly no impossi- bility nor even difficulty in requiring a jury to decide the issues of fact upon which the right to many kinds of equi- table remedy depends; this is the province of a jury in legal actions, the court pronouncing the judgment upon their verdict. A jury is clearly incompetent to frame and deliver a decree according to the doctrines and methods of equity; but there can be no real obstacle in the way of its ascertaining the facts by its verdict, and leaving the court to shape the decree and award the relief based upon these facts in many species of equitable remedy. That the issues of fact may be complicated is no insurmountable difficulty; for no issues of fact are ordinarily more com- plicated than those involving elements of fraud, which have always been regarded as peculiarly within the province of a jury.i There are, however, classes of equitable suits in § 116, 1 This proposition of the text, which might otherwise have been regarded as a mere theoretical conception, has been actually wrought out into practice by the courts of Pennsylvania. For a long term the legis- lature of that state refused to confer any equitable jurisdiction upon its courts. As a consequence, and in order to prevent a failure of justice, the courts contrived a system of administering many equitable remedies and enforcing many equitable rights by means of the common-law forms 137 THE CONSTITUENT PARTS OF EQUITY. § 117 which the issues of fact upon which the relief depends are so intimately connected with the relief itself that their decision is plainly beyond the competence of a jury, and must of necessity be left to the court or judge. Of this character, for Example, are all suits for the distribution and marshaling of assets, and in fact all those in which the final relief depends upon an accounting. ^Tiile a par- tial amalgamation of law and equity into one remedial system may be theoretically possible by extending the jury trial to certain equitable actions in which it is not now used, I am strongly of the opinion that the jury trial in civil causes of a legal nature is a practical obstacle to any more complete combination of the two systems than has already been accomplished by the reformed procedure.^ § 117. To sum up the discussions of the foregoing sec- tion: The entire municipal law, so far as it is concerned with private civil relations, comprises, — 1. Legal rules defining legal primary rights and duties applicable to most of the facts and circumstances which have been brought within the range of jural relations; 2. Legal rules defin- ing legal remedial rights and duties and remedies, which are few in number, and very limited in their nature and form; 3. Equitable rules defining equitable primary rights and duties applicable to certain classes of jural relations, which rights and duties are supplementary and additional rather than contradictory to the legal ones affecting the of action. This was accomplished in the manner suggested in the text. In the common-law action the facts showing the equitable right were admitted into the pleadings, the jury passed upon the issues of fact, legal and equitable, and on their verdict the court rendered its judgment, which, by being made conditional, was enabled in an indirect manner to main- tain the equitable right and grant the equitable remedy. In this manner the common-law action of ejectment was made the means of enforcing specific performance, and of protecting the equitable estates of parties, where their land was held under an implied trust, etc. § 116, 2 See Pomeroy on Remedies and Remedial Rights, §§ 51, 52, in which this question is more fully examined. § 117 EQUITY JURISPRUDENCE. 138 same relations; 4. Equitable rules defining equitable pri- mary rights and duties applicable to a comparatively few facts and circumstances, which are actually conflicting with the corresponding legal rights and duties; 5. Equitable rules defining equitable remedial rights and duties and remedies, which are much more various in their nature and form, specific in their object, and flexible in their opera- tion, than the remedies supplied by the law. There is, therefore, no clashing nor uncertainty with respect to the final absolute rights and duties of individuals, except so far as such conflict or doubt may arise from the compara- tively few rules of the fourth class, where the antagonism between equity and the law does actually exist. It is cer- tainly strange, inexplicable except upon historical grounds, that in an age and country advanced in civilization, the municipal law should present such an anomaly, that a married woman's agreement, for example, should be utterly void by the rules of the law, while, according to the doctrines of equity, it might be valid and enforceable out of her separate estate; or that a certain contract for the sale of land should be treated as an absolute nullity by a court of law, and should be regarded as binding and specifically executed by a court of equity. If any change, however, is to be made for the purpose of removing this discord, it must be in the legal and not in the equitable rules. The latter are, in all instances, the more just, and more in accordance with the sentiments and opinions of the age ; while the former are necessarily subordinate, some of them have become practically obsolete, and all of them would be totally abandoned in any thorough revision or scientific codification of our entire jurisprudence. 139 THE PRINCIPIiES OF CLASSIFICATION. §§ 118, 119 SECTION V. THE PRINCIPLES OF CLASSIFICATION. ANALYSIS. § 118. Importance and difficulty of a correct classification, f § 119, 120. Different grounds which might be taken for a classification. §§ 121-125. Ordinary mode of classification according to the nature of the jurisdiction. § 121. In the three divisions of exclusive, concurrent, and auxiliary. §§ 122, 123. Different modes of carrying out this system by various writers. §§ 124, 125. Fundamental objections to this system of classification. §§ 126, 127. The true principles of classification in the present condition of Equity. § 128. Plan and order of arrangement adopted in this treatise. § 118. Importance and Difficulty of a Correct Classifi- cation. — The practical as well as the scientific value of a treatise on equity jurisprudence must largely depend upon the Principles of Classification adopted in the arrange- ment and discussion of the subject-matter. At the very outset, however, we encounter a most serious obstacle. From the partial character of equity as a system, from the fact that it covers only a comparatively small portion of the doctrines and rules, facts and circumstances, embraced in the entire national jurisprudence, its orderly and con- sistent arrangement necessarily becomes a matter of great difficulty. There are so many breaks, omissions, and, so to speak, empty spaces in the system of equity, that it is almost impossible to follow any one plan or method throughout the whole extent. It is plain, however, that the principles and modes adopted should conform to the present condition of equity, and to its existing relations with the law. § 119. Different Grounds of Classification. — There are several features or elements of the equity jurisprudence which might, with more or less propriety, be selected as the basis of a classification. Among these are certain im- § 119 EQUITY JUEISPRUDENCE. 140 portant external facts or events, such as Fraud, Mistake, Accident, and the like, which are the occasions of numer- ous equitable rules. These external facts have been treated by some writers as distinct heads or departments of equity jurisprudence, and they are often so described in the general language of judicial opinions. A jurispru- dence, however, does not consist of the mere facts or events which are the occasions of rules and rights, but of the rules which create the rights, and of the rights and duties them- selves which result from these rules. Although such ex- ternal facts and events as fraud, mistake, accident, and the like are the occasions of numerous equitable rules, and therefore figure largely in the practical workings of the equitable jurisdiction, they are also the occasions from which many legal rules and rights take their origin; they are not peculiar to equity, and if adopted as a basis of classification, would tend to confuse its doctrines with those of the law. There is another objection, of much more weight. These external facts are the sources of a great variety both of rights and remedies. Fraud, for example, affects a large part of equity jurisprudence. It is the occa- sion of equitable rights of property, of equitable rights con- cerning contract, of equitable rights growing out of special personal relations, such as cestui que trust and trustee, and of many equitable remedies, such -as cancellation, reformation, specific enforcement, accounting,^ and others. It is plain, therefore, that these species of external facts and events, important as they undoubtedly are, do not fur- nish any sufficient basis for a practical nor for a scientific classification. They do not suggest any grounds for dis- criminating between rights and remedies which are essen- tially different; they would tend to produce confusion, rather than to supply a means of analyzing and arranging the doctrines in an orderly and distinct manner. § 119, (a) The text is cited in also, in Walls v. Brundidge, 109 Ark. Stockton V. Anderson, 40 N. J. Eq. 250, Ann. Cas. 1915C, 980, 160 S. W. 486, 4 Atl. 642; McCormick v. Hart- 230; Stapleton v. Haight, 135 Iowa, ley, 107 Ind. 248, 6 N". E. 357. Cited, 564, 113 N. W. 351. 141 THE PRINCIPLES OF CLASSIFICATION. §§120,121 § 120. Another possible basis for a classification miglit be found in certain grand iinderl3ing principles, wliich are often called the Maxims of Equity, of which the following are given merely as examples: lie who seeks equity must do equity; equality is equity; equity regards as done what ought to be done; equity looks at the substance and real intent, and not at the form, etc. It must be said of these grand principles, that they are a component part of equity jurisprudence, and not mere external facts or events, like fraud and mistake. They are the fruitful sources of doc- trine whence are derived a vast number of particular rules concerning both primary rights and remedies. But the objection last mentioned in the preceding paragraph ap- plies with even greater force to them. These principles are -too broad, comprehensive, and, so to speak, universal, to be taken as the basis of any practical classification. They run through all parts of the system, and are the source of so many and different rights and remedies, that they furnish no lines of division nor grounds of distin- guishing one from another, and of arranging the whole according to any fixed plan. These principles in them- selves are of the highest importance to an accurate under- standing of equity as a whole ; they are the unfailing foun- tains whence flow the various streams of right and justice ; the perennial sources of practical rules applicable to the ever-changing events of the social life; the foundation- stones upon which the beautiful structure of equity has been erected. The student who has made all these prin- ciples a part of his mental habit, who has, as it were, in- corporated them into his very intellectual being, has already mastered the essence of equity, and has made the acquisition of its particular rules an easy and delightful labor.S' § 121. Ordinary Mode of Classification. — The plan of arrangement which has been followed by most authors of § 120, (a) The text is cited in Otis v. Gregory, 111 Ind. 504, 13 N. E. 39. § 122 EQUITY JURISPRUDENCE. 142 general treatises is based upon the relations wliicli for- merly existed between equity and the law when the two jurisdictions were as yet wholly distinct, and were admin- istered by separate tribunals. Its divisions were made, not according to any inherent quality or nature either of rights or remedies, but according to a purely accidental quality of the jurisdiction. The fact that this jurisdic- tional criterion was merely accidental and incidental, is demonstrated by its having been utterly abolished in Eng- land and in many of our states without any change in the equitable rights and remedies themselves, but with only a change in the mode of administering those rights and remedies by a separate judicial proceeding. This plan of classification separates the whole body of equity into the three following grand divisions: 1. That containing the matters in respect of which courts of equity had an exclu- sive jurisdiction ; 2. That containing matters in respect of which courts of equity had jurisdiction concurrently with courts of law; 3. That containing matters in respect of which the equity jurisdiction, though exclusive, was wholly exercised in aid of certain actions or proceedings which belonged exclusively to courts of law. In brief, the classi- fication which has ordinarily been adopted in the text- books is, the Exclusive Jurisdiction, the Concurrent Juris- diction, and the Auxiliary Jurisdiction. § 122. Before examining the merits of this plan, a brief description of the manner in which it has been fol- lowed by different authors will be given. A great diver- sity exists among text-writers who have adopted this plan, in the modes which they have employed, in the accuracy and consistency with which they have adhered to the prin- ciples, in the criteria which they have taken to determine the nature and scope of the three grades of jurisdiction, and, as a consequence, in their arrangement of particular topics and heads of equity in one or the other of these three divisions. By some writers the element of exclusiveness 143 THE PRINCIPLES OF CLASSIFICATION. § 123 or of concurrence in the jurisdiction has been regarded more in connection with the primary rights, estates, and interests created by equity than with its remedies. But they have not followed this method consistently, since their order of arrangement has, to a partial extent, been deter- mined by the nature of the remedies, and even by mere external facts or events which are the occasions of rights and duties. It has resulted from this radical difference in their mode of interpreting and carrying out the plan, that there is no agreement among these authors in their arrangement of particular topics under the three general divisions of jurisdiction. ^ §123. -Other authors, in adopting this general plan of classification, have applied the criterion of exclusiveness or concurrence wholly to the remedies which equity gives, and have determined the various topics falling within one or the other of the three divisions in accordance with the nature of these remedies ; that is, whether they belong ex- clusively to the equity jurisdiction, or are conferred by the § 122, 1 1 take simply as an illustration the Principles of Equity, by E. H. T. Snell (London, 1874). In the "Concurrent" jurisdiction, this author places both "Specific Performance" and "Injunction," although as remedies both are exclusively equitable. The reason of this arrangement seems to be that the law has jurisdiction over contracts generally, and over some of the rights and interests which may be protected by injunc- tion. Under the "Auxiliary" jurisdiction, he strangely enough places the remedy of "CanceUation," "Bills to Establish Wills," "Bills Quia Timet," and "Bills of Peace." The first of these is an exclusive equitable remedy, and is constantly used as a means of establishing or restoring equitable rights and estates. The three others are in evei-y case final reliefs, de- claring and establishing rights of property. It is difficult to conceive how a suit to "quiet title" can be regarded as belonging to the "Auxiliary" jurisdiction. This author, like many others, places fraud, actual or con- structive, mistake, and accident as distinct heads of concuiTent juris- diction. The objections to such an arrangement are patent. In the first place, as already said, these matters are not in any sense parts of equity jurisprudence. In the second place, they are the occasions whence equi- table primary rights and remedies of the most exclusive character take their rise, as well as those which are legal. § 123 BQUITT JUKISPRUDENCE. 144 law courts, or are entirely auxiliary to the prosecution of legal actions. This method has the advantage of consist- ency and simplicity, and is not open to the objection of confusion ; but it necessarily places the primary rights and duties of equity in a very subordinate position, and thus presents a one-sided and even misleading view of the equity jurisprudence considered in its totality.^ Some text-writers of high reputation, while professing to class- ify particular topics under the three divisions according to the nature of the remedies, have failed to carry out this mode of arrangement with consistency, and have thus left the student without any certain clew to their system of classification.2 § 123, 1 By far the best example of this method, I think, is the Doctrine of Equity, by John Adams, 6th Am. ed., 1873. His three chief divisions are : 1. Jurisdiction in cases in which the law courts cannot enforce a right; meaning thereby a remedial right, and intending to include in the division those remedies which are exclusively equitable. Under this head he places Specific Performance, Reformation, Cancellation and Rescission, Injunction, Bills of Peace and to Quiet Title, Suits to Foreclose or to Redeem Mortgages, Enforcement of Trusts, and others. 2. Jurisdiction in cases in which the law courts cannot administer a right, — that is, cannot fully and advantageously enforce it ; the division including remedies which are within the concurrent jurisdiction of equity. Under this head he ranges Account, Partition, Settlement of Partnership Matters and Estates of Decedents, Marshaling of Assets, Contribution and Exoneration, etc. 3. Jurisdiction which is wholly auxiliary, including only Discovery, Per- petuation of Testimony, and Examination of Witnesses abroad. This author is perfectly consistent in following out the principles which he has adopted; and he does not fall into the common error of taking fraud, mistake, accident, and the like as distinct heads of equity jurisprudence. The result is, that Mr. Adams's book is clear, distinct, Avithout confusion, and from his stand-point presents a very correct and consistent view of equity. But this view is certainly a partial one. The representation of equity as consisting wholly of remedies is incorrect in its fundamental conception, and when all equitable primary rights, interests, and estates are treated merely as incidents of the remedies, such a representation is actually made, even though it was undesigned on the part of the author. § 123, 2 It cannot be denied that Judge Story's Commentaries are liable to this criticism, axid the result is plainly shown in his classification and 145 THE PRINCIPLES OF CLASSIFICATION. § 124 § 124. Even if the plan of classification according to the nature of the equity jurisdiction, considered in its re- lations with that of the law, possessed at one time certain practical advantages which on the whole rendered it pref- erable to any other (and I do not admit this proposition as unquestionably true), the recent and great changes made by statute have, in England, and in many of the states entirely, and in other states to a large extent, de- stroyed the basis of fact — the relations between equity and the law — upon which the very principles of the classifica- tion were founded. In England and in all the common- wealths of this country where the reformed procedure pre- vails, there is no longer any auxiliary jurisdiction of equity, nor any reason for calling its remaining functions either exclusive or concurrent, since legal and equitable primary rights are maintained, legal and equitable reme- dial rights are enforced, and legal and equitable remedies are granted by the same tribunal and in the same action. In most of the remaining states where the two jurisdic- tions are still kept distinct, the ''auxiliary" equitable pro- ceedings have either been abolished or have become prac- tically obsolete;^ and in all of them the powers of the law courts have been so enlarged, equitable rights and in- terests are to such an extent cognizable by way of defense in legal actions, and so many matters which once came within the province of equity have been placed under a complete system of statutory regulation, and their admin- (•cirrangement and treatment of particular topics. While certain remedies f;ae properly ranged under the exclusive jurisdiction, and others under fjie concurrent, as is done by Mr. Adams, this criterion is often abandoned ; ;no clear distinction is made between remedies or the rights to them, and I he equitable estates, interests, rights, and obligations which are primary in their nature; and finally, the mere external facts of fraud, mistake, etc., are regarded as veritable and important heads of equity jurispru- dence, and are discussed at great length. § 124, (a) The text is cited to this effect in Becker v. Frederick W. Lipps Co. (Md.), 101 Atl. 783. I— 10 § 125 EQUITY JURISPRUDENCE. 146 istration given to special tribunals, that the ancient sep- aration into exclusive jurisdiction no longer furnishes an adequate nor even a true principle upon which to classify the body of equity jurisprudence. This method, which has been commonly adopted by text-writers, is therefore in direct conflict with the reformed procedure now used in more than half of the states and territories, as well as in England and its chief colonial dependencies; and it is also opposed to the tendencies of legislation in all the other states, with a very few exceptions. There is nothing which so hinders the progress of legal reform, and so long de- lays the general acceptance according to its true intent of a new legal system, as the persistent retention of the nomenclature, methods, and classification which had been established as the outgrowth and formal expression of the ancient notions discarded and abandoned by the legislative enactment. For this reason, if for no other, I am strongly of the opinion that a plan of arranging and presenting the equity jurisprudence which had its origin solely in the fact that law and equity were originally two distinct jurisdic- tions, and were administered by separate tribunals, is not at all adapted to the condition of the municipal law, and of the relations between its departments, which now exists throughout the United States, nor to the national tenden- cies shown in the changes which are constantly made by the state legislatures, especially the tendencies towards a scientific revision and codification of the municipal law, which will more and more obliterate the external distinc- tions between equity and the law. § 125. There is, however, another, and as it seems to me more fundamental, objection to this method of classifi- cation, based upon the assumed relations between legal and equitable jurisdiction. Whenever some single feature or partial element of an extensive system is taken as the basis of classifying its component parts, the inevitable re- sult must be an imperfect and even incorrect view of the 147 THE PRINCIPLES OF CLASSIFICATION. § 126 system as a whole. The choice of the equitable remodios alone as the fixed points to which all doctrines and rules are referred, and the classification of these remedies solely- according to their relations with the jurisdictions pos- sessed by the two courts, have tended irresistibly to pro- duce a confused and one-sided conception of the nature and functions of equity.^ Under the influence of such a conception, some writers have taught that equity consists entirely of certain remedies, and have denied that it creates any primary rights and duties whatever. I have already shown the erroneous character of this theory, and shall not dwell upon it further. § 126. True Principles of Classification. — A comprehen- sive treatment of equity which shall conform to its real nature and its present condition as a branch of the juris- prudence now existing in the United States should pre- sent all of its component parts in their true relations with each other and with the law, and should adopt such prin- ciples of classification as will follow the essential lines of separation between these parts, and furnish a correct and practical guide for the student and the lawyer. No method can be accurate nor really practical which, in the first place, does not recognize the fact that equity consists of two grand divisions, the Primary Rights and Duties, Es- tates and Interests which it creates, and the Remedial Rights and Duties enforced by the various Remedies which it confers; and which, in the second place, does not pre- sent the principles, doctrines, and rules concerning these Primary Rights, Estates, and Interests, separate and dis- tinct from those which relate to the Remedial Rights and Remedies. The classification of the remedies, being no § 125, 1 As an illustration of this proposition, it is impossible to lay down any comprehensive, complete, and accurate rules concerning the extent of the equity jurisdiction, when the equitable and legal remedies are taken as the only elements for determining the question. The primary rights, estates, and interests created by equity must necessarily enter into any general solution of the problem. § 127 EQUITY JURISPRUDENCE. 148 longer based upon any notion of exclusive and concurrent jurisdictions, should be made in accordance with their own inherent nature and the nature of the primary rights, the violation of which they are intended to redress or relieve. Underlying these equitable estates, interests, and rights, and these equitable remedies, and constituting the sources from which most of them have been derived, there are cer- tain equitable principles of a most broad, comprehensive, and general nature and application. These principles run through every branch of th"e equity jurisprudence; from them a large part of the particular doctrines and rules of that system, both concerning equitable estates and inter- ests, and equitable remedies, have been developed. They seem to require, therefore, in any well-constructed arrange- ment, a separate treatment, preliminary to the examina- tion of those more special topics which are directly con- nected with the equitable estates, interests, rights, and remedies. § 127. The order which should be observed in the treat- ment of these two grand divisions which make up the whole of equity jurisprudence may well be determined by consid- erations of convenience, rather than by the requirements of a scientific precision. The division of equity which is concerned solely with remedies is much broader and more comprehensive than that which is concerned with equitable primary rights and interests. The remedies administered by equity are not confined to cases in which equitable pri- mary rights have been violated; they are not restricted to the single purpose of maintaining equitable estates and interests. As has already been stated in a preceding sec- tion, the peculiar reliefs of equity are given, under certain well-established conditions of fact, for the violation of legal primary rights and for the protection and support of legal estates and interests. In other words, while every equi- table right and interest is enforced and preserved by an appropriate equitable remedy, the remedial jurisdiction of equity extends beyond these somewhat narrow limits, and 149 THE PRINCIPLES OF CLASSIFICATION. § 128 embraces many classes of legal rights and interests for the violation of which, under the existing circumstances, the law gives no adequate relief. Before, however, enter- ing upon either of these two grand divisions of the work, a preliminary investigation into the nature and extent of the equity jurisdiction is necessary as a foundation for all subsequent discussions. § 128. I shall in the following treatise adopt the general plan, principles of classification, and method of treatment described in the foregoing paragraphs. The entire work will be separated into four parts. Part First will contain an inquiry into the nature and extent of the Equity Juris- diction as it now exists in the United States, both in its original and general form, and as limited or regulated by the statutory legislation of the various states and of the Congress of the United States. The three remaining parts will treat of the Equity Jurisprudence, or the doctrines which are administered by the courts in the exercise of their equitable jurisdiction. Part Second will discuss the grand principles and maxims which are the foundation of Equity Jurisprudence, and the sources of its particular doctrines, and will also describe some of the most impor- tant facts and events which are the occasions of equitable primary and remedial rights and duties. Part Third will contain that portion of Equity Jurisprudence which con- sists of Primary Rights and Duties, or in other words, of equitable estates, titles, and interests. Part Fourth will contain that portion of Equity Jurisprudence which con- sists of remedial rights and duties and of remedies. This description does not include any discussion of mere pro- cedure. The term ** Remedies," as it has been defined, and as it will be used throughout the book, does not em- brace the rules of procedure, but only the reliefs which are granted for a violation, actual or threatened, of legal and equitable rights. PART FIRST. PART FIRST. THE NATURE AND EXTENT OF EQUITY JUKISDICTION. CHAPTER FIRST. THE GENERAL DOCTRINE CONCERNING THE JURISDICTION. SECTION I. FUNDAMENTAL PRINCIPLES AND DIVISIONS. ANALYSIS. Equity jurisdiction defined. Requisites in order that a case may come within it. Distinction between the existence of equity jurisdiction and the proper exercise of it. Inadequacy of legal remedies, how far the test. Equity jurisdiction depends on two facts: the existence of equi- table interests, and the inadequacy of legal remedies. How far the jurisdiction is in personam, how far in rem. Equity- jurisdiction threefold, — exclusive, concurrent, and aux- iliary. What embraced in the exclusive jurisdiction. What embraced in the concurrent jurisdiction. Cases may fall under both. What embraced in the auxiliary jurisdiction. Order of subjects. § 129. Equitable Jurisdiction Defined. — It is important to obtain at tlie outset a clear and accurate notion of what is meant by the term ** Equity Jurisdiction." It is used in contradistinction to "jurisdiction" in general, and to ''common-law jurisdiction" in particular. In its most general sense the term ''jurisdiction," when applied to a court, is the power residing in such court to determine (153) §129. §130. §131. §132. §133. §§ 134, 135. §136. §§ 137, 138. §§ 139, 140. §141. §§ 142-144. §145. § 129 EQUITY JUEISPRUDENCE. 154 judicially a given action, controversy, or question pre- sented to it for decision. If this power does not exist with reference to any particular case, its determination by the court is an absolute nullity; if it does exist, the determina- tion, however erroneous in fact or in law, is binding upon the parties until reversed or set aside in some proceeding authorized by the practice, and brought for that express purpose. 1 «• It is plain that the term used in this strict § 129, 1 The true meaning of "jurisdiction" is so often misunderstood, and the word is so often misapplied, that I shall quote a passage from the opinion of Mr. Justice Folger in the recent case of Hunt v. Hunt, 72 N. Y. 217, 228-230, 28 Am. Rep. 129, in which the subject is ex- plained in a very clear and convincing manner: "Jurisdiction of the subject-matter does not depend upon the ultimate existence of a good cause of action in the plaintiff in the particular case. See Groenvelt v. Burwell, 1 Ld. Raym. 466, 467. A court may have jurisdiction of all actions in assumpsit of that subject-matter. An action by A in which judgment is demanded against B, as the indorser of a promissory note, falls within that jurisdiction. Such court may entertain and try the action, and give a valid and effectual judgment in it. Though it should appear in proof that there never had been presentment and demand, nor notice of non-payment, yet a judgment for A against B, though against the facts, without facts to sustain it, would not be void as rendered without jurisdiction. It would be erroneous, and liable to reversal on review. Until reviewed and reversed, it would be valid and enforceable against B, and entitled to credit when brought in play collaterally. Juris- diction of the subject-matter is power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case, arising, or which is claimed to have arisen, under that general question. One court has jurisdiction in crim- inal cases; another in civil cases; each in its sphere has jurisdiction of the subject-matter. Yet the facts, i. e., the acts of the party proceeded against, may be the same in a civil case as in a criminal case; as, for instance, in a civil action for false and fraudulent representations and deceit, and in a criminal action for obtaining property by false pretenses. We should not say that the court of civil poAvers had jurisdiction of the § 129, (a) The text is quoted in structive case, Miller v. Rowan, 251 Venner y. Great Northern Ey. Co., HI. 344, 96 N. E. 285 (decree con- 153 Fed. (N. Y.) 408; in Tonnele struing will where only legal estates V. Wetmore, 195 N. Y. 436, 88 N. E. involved, though erroneous, not 1068; cited and followed in the in- void). 155 FUNDAMENTAL. PRINCIPLES AND DIVISIONS. § 129 sense may be applied to courts of equity as well as to any other tribunals. With this signification of the word, it would be said that an equity court has no jurisdiction to try the issues arising upon an indictment, and to render judgment in a criminal prosecution; the entire proceeding would be null and void. On the other hand, it is equally plain that this strict meaning is not always given to the term ^'equity jurisdiction," as it is ordinarily used. The proceedings and judgment of a court of chancery or of a court clothed with equity powers are not necessarily null and void because the action is not one which comes within the scope of the ''equity jurisdiction" in the common acceptation of that phrase, or in other words, because the claim is one for which there is a full, adequate, and com- plete remedy at law.^ ^ This well-settled rule furnishes a criminal action, nor vice versa, though each had power to pass upon allegations of the same facts. So there is a more general meaning to the phrase 'subject-matter,' in this connection, than power to act upon a particular state of facts. It is the power to act upon the general, and, so to speak, the abstract, question, and to determine and adjudge whether the particular facts presented call for the exercise of the abstract power. A suitor for a divorce may come into any court of the state in which he is domiciled, which is empowered to entertain a suit therefor, and to give judgment between husband and wife of a dissolution of their married state. If he does not establish a cause for divorce, jurisdiction to pro- nounce judgment does not leave the court. It has power to give judgment that he has not made out a case. That judgment would be so valid and effectual as to bind him thereafter, and to be res adjudicata as to him in another like attempt by him. If that court, however, should err, and give judgment that he had made out his case, jurisdiction remains in it so to do. The error is to be corrected in that very action. It may not be shown collaterally to avoid the judgment, while it stands unreversed. The judgment is in such case also res adjudicata against the party cast in the judgment. We conclude that jurisdiction of the subject-matter is the power lawfully confen-ed to deal with the general subject involved in the action." § 129, 2 Bank of Utica v. Mersereau, 3 Barb. Ch. 528 ; Cummings v. Mayor, etc., 11 Paige, 596; Creely v. Bay State B. Co., 103 Mass. 514; §129, (b) The text is quoted in Tonnele v. Wetmore, 195 N, Y. 436, 88 N. E. 1068. § 130 EQUITY JURISPRUDENCE. 156 decisive test, and shows that when ordinarily speaking of the ''equity jurisdiction" we do not thereby refer to the general power inherent in a court to decide a controversy at all, — a power so essential that its absence renders the decision a mere nullity, but we intend by the phrase to de- scribe some more special and limited judicial authority. §130. ** Equity jurisdiction," therefore, in its ordinary acceptation, as distinguished on the one side from the gen- eral power to decide matters at all, and on the other from the jurisdiction "at law" or ''common-law jurisdiction," is the power to hear certain kinds and classes of civil causes according to the principles of the method and procedure adopted by the court of chancery, and to decide them in accordance with the doctrines and rules of equity jurispru- dence, which decision may involve either the determination of the equitable rights, estates, and interests of the parties to such causes, or the granting of equitable remedies. In order that a cause may come within the scope of the equity jurisdiction, one of two alternatives is essential ; either the primary right, estate, or interest to be maintained, or the violation of which furnishes the cause of action, must be equitable rather than legal ; ^ * or the remedy granted must Amis V. Myers, 16 How. 492, 493 ; Sexton v. Pike, 13 Ark. 193. In some instances where the facts very clearly bring the ease within the common- law jurisdiction, the court of equity will itself take the objection at any stage of the suit and dismiss it, even though no objection had been raised by the parties; but even in such cases a judgment of the equity court sustaining the action and granting the relief would not necessarily be a nullity. See Parker v. Winnipiseogee Co., 2 Black, 545, 550, 551 ; Hipp V. Babin, 19 How. 271, 277, 278. § ISO, 1 Reese v. Bradford, 13 Ala. 837 ; Sessions v. Sessions, 33 Ala. 522, 525; Torrey v. Camden, etc., R. R. Co., 18 N. J. Eq. 293; Ontario Bank v. Mumford, 2 Barb. Ch. 596, 615; Woodruff v. Robb, 19 Ohio, 212, 214; Wolfe v. Scarborough, 2 Ohio St. 361, 368; Heilman v. Union Canal Co., 37 Pa. St. 100, 104; McCullough v. Walker, 20 Ala. 389, 391; Wol- § 130, (a) The text is quoted in Deposit & Trust Co. v. Cahn, 102 Venner v. Great Northern Ey. Co. Md. 530, 62 Atl. 819. (C. C. N. Y.), 153 Fed. 408; in Safe 157 FUNDAMENTAL PRINCIPLES AND DIVISIONS. § 130 be in its nature purely equitable, or if it be a remedy which may also be given by a court of law, it must be one which, under the facts and circumstances of the case, can only be made complete and adequate through the equitable modes of procedure. 2 At the same time, if a court clothed with the equity jurisdiction as thus described should hear and decide, according to equitable methods, a case which did not fall within the scope of the equity jurisprudence, be- cause both the primary right invaded constituting the cause of action and the remedy granted were wholly legal, and belonging properly to the domain of the law courts, such judgment, however erroneous it might be and liable to re- eott V. Robbins, 26 Conn. 236; Green v. Spring, 43 111. 280; Vick v. Percy, 7 Smedes & M. 256, 268, 45 Am. Dec. 303; Abbott v. Allen, 2 Johns. Ch. 519, 7 Am. Dec. 554; Waddell v. Beach, 9 N. J. Eq. 793, 795; Milton V. Hogue, 4 Ired. Eq. 415, 422; Johnson v. Connecticut Bank, 21 Conn. 148, 157; Perkins v. Perkins, 16 Mich. 162, 167; BoUes v. Carli, 12 Minn. 113, 120; Echols v. Hammond, 30 Miss. 177; Hipp v. Babin, 19 How. 271, 277, 278; Wing v. HaU, 44 Vt. 118, 123; Detroit v. Board of Public Works, 23 Mich. 546, 552; Simmons v. Hendricks, 8 Ired. Eq. 84-86, 55 Am. Dec. 439; Pratt v. Northam, 5 Mason, 95, 104; Thompson V. Brown, 4 Johns. Ch. 619, 631; Hunt v. Danforth, 2 Curt. 592, 603; Gay V. Edwards, 30 Miss. 218, 230; Bush v. Golden, 17 Conn. 594; GiUiam V. Chancellor, 43 Miss. 437, 5 Am. Rep. 498. § 130, 2 Brinkerhofie v. Brown, 4 Johns. Ch. 671 ; Mason v. Piggott, 11 111. 85, 89; Claussen v. Lafrenz, 4 G. Greene, 22^227; Kimball v. Grafton Bank, 20 N. H. 347, 352 ; Person v. Sanger, Daveis, 252, 259, 261 ; Curtis V. Blair, 26 Miss. 309, 327, 59 Am. Dec. 257; Dickenson v. Stoll, 8 N. J. Eq. 294, 298; Perkins v. Perkins, 16 Mich. 162, 167; Barrett v. Sargeant, 18 Vt. 365, 369 ; Jordan v. Faircloth, 27 Ga. 372, 376 ; Bassett v. Brown, 100 Mass. 355; Morgan v. Palmer, 48 N. H. 336; Hall v. Joiner, 1 S. C. 186; Matter of Broderick's Will, 21 Wall. 503, 504; Comstock v. Henneberry, 66 111. 212; Suter v. Matthews, 115 Mass. 253; Santacruz v. Santacruz, 44 Miss. 714, 720; Glastenbury v. McDonald's Administrator, 44 Vt. 450, 453; Brandon v. Brandon, 46 Miss. 222, 231; Scruggs v. Blair, 44 Miss. 406, 412; Carr v. Silloway, 105 Mass. 543; Sanborn v. Braley, 47 Vt. 171; Doremus v. Williams, 4 Hun, 458; Carlisle v. Cooper, 21 N. J. Eq. 576; Edsell v. Briggs, 20 Mich. 429; McGunn v. Huntin, 29 Mich. 477; Gay V. Edwards, 30 Miss. 218, 230. § 130 EQUITY JURISPRUDENCE. 158 versal, would not necessarily be null and void.^ ^ On the contrary, as will be more fully stated hereafter, the objec- tion that the case does not come within this so-called equity jurisdiction must ordinarily be definitely raised by the de- fendant at the commencement of the proceedings, or else it will be regarded as waived, and the judgment will not even be erroneous.^ <^^ In some instances, however, where the equitable functions of the court are specitically defined by statute, or the facts show very clearly that the rights involved in the controversy and the remedies demanded are purely legal, and completely within the scope of ordinary legal proceedings, the court of equity will itself take the objection at any stage of the cause, and will dismiss the suit, although no objection has in any way been raised by the parties.^ ^ § 130, 3 This conclusion results from the principle laid down by Folger, J., in the passage above cited. If the court has jurisdiction over the subject-matter of equitable rights, interests, and remedies, its jurisdiction does not depend upon its deciding correctly as to the existence of such rights, or as to the granting of such remedies. The jurisdiction itself exists independently of the particular case over which it is exercised; jurisdiction, in its most general and accurate sense of a power to decide concerning certain subject-matter, involves the power to decide wrongly as well as correctly. §130, 4 Cummings v. Mayor, etc., 11 Paige, 596; Bank of Utica v. Mersereau, 3 Barb. Ch. 528; Amis v. Myers, 16 How. 492; Creely v. Bay State B. Co., 103 Mass. 514; Sexton v. Pike, 13 Ark. 193. § 130, 5 Hipp V. Babin, 19 How. 271, 278 ; Parker v. Winnipiseogee Co., 2 Black, 545, 550, 551. § 130, (b) The text is quoted in v. Eowan, 251 HI. 344, 96 N. E. 285 Venner v. Great Northern Ry. Co. (decree construing will where only (C. C. N. Y.), 153 Fed. 408; in Ton- legal estates involved, though er- nele v. Wetmore, 195 N. Y. 436, 88 roneous, not void). N. E. 1068; cited to this effect in §130, (c) The text is quoted in Freer v. Davis, 52 W. Va. 1, 94 Am. Tonnele v. Wetmore, 195 N. Y. 436, St. Rep. 895, 43 S. E. 164, 172, dis- 88 N. E. 1068. See, also, Miller v. senting opinion; the majority hold- Eowan, 251 111. 344, 96 N. E. 285; ing that consent cannot confer Hill v. St. Louis & N. E. Ey. Co., jurisdiction to try a disputed title 243 HI. 344, 90 N. E. 676. in suit to enjoin trespass. The text § 130, (d) This passage of the text is supported by the case of Miller is quoted in Hanna v. Eeeves, 22 159 FUNDAMENTAL PRINCIPLES AND DIVISIONS. § 131 § 131. It is plain, from the foregoing definitions, that the question whether a given case falls within the equity jurisdiction is entirely different and should be most care- fully distinguished from the question whether such case is one in which the relief peculiar to that jurisdiction should be granted, or in which the equity powers of the court should be exercised in maintaining the primary right, es- tate, or interest of the plaintiff. The constant tendency to confound these two subjects, so essentially different, has been productive of much confusion in the discussion of equi- table doctrines. Equity jurisdiction is distinct from equity jurisprudence. One example will suffice to illustrate this important proposition. A suit to enforce the specific per- formance of a contract, or to reform a written instrument on the ground of mistake, must always belong to the equity jurisdiction, and to it alone, since these remedies are wholly beyond the scope of common-law methods and courts; but whether the relief of a specific performance, or of a refor- mation, shall be granted in any given case, must be deter- mined by an application of the doctrines of equity jurispru- dence to the special facts and circumstances of that case.* The same is true of every species of remedy which may be conferred, and of every kind of primary right, estate, or in- terest which may be enforced or maintained, by a court pos- sessing the equitable jurisdiction. In other words, the equity jurisdiction may exist over a case, although it is one which the doctrines of equity jurisprudence forbid any re- lief to be given, or any right to be maintained. This con- clusion is very plain, and even commonplace; and yet the ''equity jurisdiction" is constantly confounded with the right of the plaintiff to maintain his suit, and to obtain the Wash. 6, 60 Pac. 62, but held not (C. C. N. Y.), 153 Fed. 408. The applicable to the facts of the case. text is cited in Thorn & Hunkins § 131 (a) Distinction Between the Lime & Cement Co. v. Citizens' Bank, Existence of EcLUity Jurisdiction and 158 Mo. 272, 59 S. W. 109; Hanson the Proper Exercise of It.— The first v. Neal, 215 Mo. 256, 114 S. W. half of this paragraph is quoted in 1073. Venner v. Great Northern Ey. Co. § 132 EQUITY JURISPRUDENCE. 160 equitable relief. This is, in fact, making the power to de- cide whether equitable relief should be granted to depend upon, and even to be identical with, the actual granting of such relief. § 132. Extent of the Jurisdiction. — Having thus gener- ally defined ''equity jurisdiction," I shall proceed with the most important and practical inquiry as to its extent and limitations, and with the examination of the kinds and classes of cases over which it may be exercised. The at- tempt has been made to furnish one comprehensive test for the solution of all questions which may arise as to the exist- ence of the jurisdiction, — to reduce all special rules to one general formula. To this end, it has often been said by courts as well as by text-writers that the equity jurisdic- tion extends to and embraces all civil cases, and none others, in which there is not a full, adequate, and complete remedy at law.i As has already been stated, some writers have gone so far as to assert that equity jurisprudence con- sists wholly in a system of remedies, and that the only rights created and conferred by it are remedial rights, that is, rights to obtain some remedy; and according to their theory, its jurisdiction is of course to be measured by the absence or existence of adequate remedies at the law.^ § 132, 1 See, as illustrations, the following among many such cases : Earl of Oxford's Case, 1 Ch. Rep. 1, 2 Lead. Cas. Eq. 1291, and notes; Grand Chute v. Winegar, 15 Wall. 373; Insurance Co. v. Bailey, 13 Wall. 616; Hipp V, Babin, 19 How. 271, 278; Parker v. Winnipiseogee Lake, etc., Co., 2 Black, 545, 550, 551. § 132, 2 See Adams's Equity, Introduction, p. 9, 6th Am. ed. Mr. Adams says : Eqiaity "does not create rights which the common law denies ; but it gives effectual redress for the infringement of existing rights, where, by reason of the special circumstances of the case, the redress at law would be inadequate." See also Introd., p. 12: Now, if equity "gives effectual redress for the infringement of existing rights" (and the whole passage shows that he is speaking of existing primary rights), it is plain that the "existing rights" thus infringed upon and redressed must have drawn their existence from some source, either from the law or from equity. It is absolutely certain that many of the "existing rights" which are 161 FUNDAMENTAL PRINCIPLES AND DIVISIONS. § 133 § 133. The general criterion which has thus been pro- posed is, however, insufficient and misleading. Althoiiiih the inadequacy of legal remedies explains, and is even necessary to explain, the interposition of equity in certain classes of cases, it wholly fails to account in any consistent and correct manner for the entire equity jurisdiction. Tlie history of the court of chancery shows that all its powers cannot be referred to this source. It is true that the common-law modes of procedure are utterly inadequate to meet all the ends of justice, and to administer all the reme- dies which are granted by equity; and that in some general sense equity is established to supply this defect in the law. But the absence of full, adequate, and complete remedies at law does not constitute a basis upon which to rest the whole equity jurisdiction, nor furnish a practical explana- tion of all the doctrines and rules which make up the equity jurisprudence. No theory is scientifically complete, nor thus redressed by equity, even if not denied by the law, are neither created nor recognized by the law. Whence, for example, do the rights of the cestui que trust of land arise? Such rights "exist," and when infringed upon they are "effectually redressed" by equity. Rights cannot exist without some creative source from which they derived their efficacy. The law certainly does not create, nor even acknowledge, the existence of any rights belonging to the cestui que trust. The conclusion is inevitable that these rights are created by equity. Even Mr. Adams admits the existence of these primary rights independent of the remedies for their violation; and to deny that they are created by equity is to run into a palpable absurdity for the purpose of maintaining an untenable theory. If it should be said, in opposition to this conclusion, that the only rights which the law does not itself create nor recognize are the very remedial rights themselves given by equity, the rights to obtain the remedies furnished by the equity methods, the answer is very simple. In the first place, this argument is a mere begging of the question, a mere reasoning in a circle ; and in the second place, the statement is without any foundation in fact. There are large and numerous classes of rights, estates, and interests maintained and enforced by equity, but not recognized by the law, which are in every sense of the term primary, — as much so as the legal estate in fee in land; and some of these equitable primary rights are, in truth. not merely unrecognized, but actually denied by the law. I— 11 § 134 EQUITY JURISPRUDENCH. 162 practically efficient, which does not recognize two distinct sources and objects of the equity jurisdiction, namely, the primary rights, estates, and interests which equity juris- l^rudence creates and protects, and the remedies which it confers. These two facts in combination can alone define the extent and fix the limits of the equity jurisdiction. ^ § 134. Some writers have argued that the equitable jurisdiction is to be regarded as wholly remedial, and that equity itself does not create any rights of property or other primary rights, because the court of chancery, as they say, .only acts in personam against the parties, and never in rem upon the subject-matter of a judicial controversy. It is said that a decree of the court never operates by virtue of its own inherent efficacy to create or to transfer an es- tate, right, or interest; that such decree never executes itself, nor furnishes any means or instruments by which it may be executed without the intervention and act of the party against whom it is rendered; that the plaintiff in equity ne;ver, merely by means of the decree in his favor, either recovers possession of the land or other subject- matter, or becomes vested with a title to or estate therein ; and that the court simply orders some act to be done, a conveyance to be executed, an instrument to be surrendered up and canceled, possession to be delivered, and the like, and then merely uses a moral coercion upon the defendant, by means of fine and imprisonment, to compel him to do what is directed to be done in the judgment. This radical difference between the effect of a decree in equity and a judgment at law, it is urged, shows that there are no equi- table primary rights, no equitable estates or interests, dis- § 133, 1 The correctness of this view of the equitable jurisdiction and of equity jurisprudence is acknowledged and asserted by the most able and learned among modern text-writers. Mr. Spence, in particular, though using a terminology' somewhat different from that which I have adopted, makes this theory the basis of his classification and of his whole treatment of equity jurisprudence. 163 FUNDAMENTAL PRINCIPLES AND DIVISIONS. § 135 tinct and separate from the rights to obtain such remedies as are administered by the court of chancery. § 135. There may be some plausibility in this argument on its surface, but when it is examined with care, and under the light of history, all its force disappears. The early chancellors, from prudential motives alone, and to avoid a direct conflict with the common-law courts, adopted this method of acting, as they said, upon the consciences of de- fendants; and the practice which they invented has, with the English national devotion to established forms, con- tinued to modern times. But it is certainly a complete confounding of the essential fact with the external form, to say that such a mere method of procedure, adopted solely from considerations of policy, determines the nature of the equitable jurisdiction, and demonstrates the non- existence of an}^ equitable primary rights, estates, and in- terests. If there had been any necessary connection be- tween the proceedings and remedies of chancery and this mode of enforcing its decrees in personam, if it had been intrinsically impossible to render these decrees operative in rem, then the argument would have had some weight; but in fact there is no such connection, no such impossi- bility; the decrees of a court of equity may be made to operate in rem to the same extent and in the same manner as judgments at law.^ Furthermore, whatever of plausi- bility there might be in the theory as applied to the English court of chancery has been entirely destroyed by the legis- lation of this country. The statutes of the several states have virtually abolished the ancient doctrine that the de- crees in equity can only act upon the person of a party, and have generally provided that in all cases where the ends of justice require such an effect, and where it is pos- sible, a decree shall either operate ex proprio vigor e to create, transfer, or vest the intended right, title, estate, §135, (a) The text is quoted in (N. S.) 625, 68 S. E. 387 (jurisdic- Tounant's Heirs v. Fretts, 67 W. Va. tion to pronounce a decree in rem is 569, 140 Am. St. Rep. 979, 29 L. R. A. not dependent on statute). § 135 EQUITY JURISPRUDENCE. 164 or interest, or else that the acts required to be done in order to accomplish the object of the decree shall be per- formed by an officer of the court acting- for and in the name of tEe party against whom the adjudication is made. In the vast variety of equitable remedies, there are, of course, some which directly affect the person of the defendant, and require some personal act or omission on his part, and these are still enforced, and can only be enforced, in per- sonam. In regard to all other classes, the statutes of our states have, as a general rule, either made them operative per se as a source of title, or as conferring an estate or right, or have given the requisite power to certain officers to carry them into effect. ^ This modern legislation has not, however, deprived a court of equity of its power to act in personam in cases where such an effect is necessary to maintain its settled jurisdiction; as, for example, where the parties being within its jurisdiction, the subject-matter of the controversy, whether real or personal property, is situated within the territory of another state or nation. ^ ^ § 135, 1 For example, wherever a decree orders a conveyance to be made by the defendant, the statutes of many states provide that the deed may be executed by a commissioner or other ofl&cer of the court, with the same effect as though done by the defendant himself; others declare that decrees may vest a title in the party in whose favor they are rendered. All decrees which require the sale of property real or personal, or the distribution of moneys, are executed by an officer of the court, and his deed upon the sale conveys all the estate and title of the defendant. Pre- ventive decrees, like ordinary injunctions, and some kinds of restorative decrees, as mandatory injunctions, must still operate in personam^ and be enforced by attachment process against the defendant, with fine and imprisonment in case of disobedience. § 135, 2 See Topp v. White, 12 Heisk. 165 ; Moore v. Jaeger, 2 Mc Ar. 465; Penn v. Lord Baltimore, 1 Ves. Sen. 444, 2 Lead. Cas. Eq., and notes thereto; Caldwell v. Carrington, 9 Pet. 86; Watkins v. Holman, 16 Pet. 25; Mead v. Merritt, 2 Paige, 402; Hawley v. James, 7 Paige, 213, 32 Am. Dec. 623; Sutphen v. Fowler, 9 Paige, 280; Newton v, Bronson, 13 § 135, (b) The text is cited in ber Ashpalt Paving Co., 151 Wis. 48, Bethell v. Bethell, 92 Ind. 318 (suit Ann. Cas. 1914B, 53, 138 N. W. 94. to reform a deed); McMillan v. Bar- 1G5 FUNDAMENTAL PRINCIPLES AND DIVISIONS. § 136 § 136. Divisions. — Adopting, therefore, the primary rights, estates, and interests which equity creates, and the remedies which it confers, as the objects which define and limit the extent of the equity jurisdiction, I shall state the principles by which the extent and limits of that juris- diction are ascertained. It has been customary among writers to distinguish the equitable jurisdiction as exclu- sive and concurrent, and some have added the third sub- division, auxiliary. I have already given reasons which appear to be sufficient for not following this method of division in treating of the matters which constitute the body of equity jurisprudence; but I shall adopt it as the most convenient in discussing the jurisdiction. This dis- tinction or opposition between the "exclusive" and the "concurrent" relates wholly to the nature and form of the remedies which are administered by equity courts, and properly belongs, therefore, to that part of the jurisdiction alone which is based upon these remedies. As has already been stated, the equity jurisdiction embraces both eases for the maintenance or protection of primary rights, es- tates, and interests purely equitable, and cases for the maintenance or protection of primary rights, estates, and interests purely legal; and in the latter class of cases the remedies granted may be of a kind which are peculiar to equity courts, such as reformation, cancellation, injunc- tion, and others, or may be of a kind which are adminis- tered by courts of law, as the recovery of money, or of the possession of specific things. ^ It is evident that the dis- tinction between the exclusive and the concurrent jurisdic- tion represents the fact that the two kinds of remedies, equitable and legal, may, under proper circumstances, be N. Y. 587, 67 Am. Dec. 89; Bailey v. Ryder, 10 N. Y. 363; Gardner v. Ogden, 22 N. Y. 332-339, 78 Am. Dec. 192; Pingree v. Coffin, 12 Gray, 304; Davis v. Parker, 14 Allen, 94; Brown v. Desmond, 100 Mass. 267. §136, (a) This passage of the Trust Co. v. Cahn, 102 Md. 530, 62 text is quoted in Safe Deposit & Atl. 819. § 137 EQUITY JURISPRUDENCE. 1C6 obtained in the last-mentioned class of cases ; no sncli divi- sion could have existed if the equity jurisdiction had been confined to the first class. § 137. Exclusive Jurisdiction. — With these preliminary explanations we are prepared for a description, in general terms, of the various kinds and classes of cases which come within the equitable jurisdiction of courts. The exclusive jurisdiction extends to and embraces, first, all civil cases in which the primary right violated or to be declared, main- tained, or enforced — whether such right be an estate, title, or interest in property, or a lien on property, or a thing in action arising out of contract — is purely equitable, and not legal, a right, estate, title, or interest created by equity, and not by law.i ^ All cases of this kind fall under the equitable jurisdiction alone, because of the nature of the primary or substantive right to be redressed, maintained, or enforced, and not because of the nature of the remedies to be granted; although in most of such instances the remedy is also equitable. It is a proposition of universal application that courts of law never take cognizance of cases in which the primary right, estate, or interest to be maintained, or the violation of which is sought to be re- dressed, is purely equitable, unless such power has been ex- pressly conferred by statute; and if the statutes have inter- fered and made the right or the violation of it cognizable by courts of law, such right thereby becomes to that extent legal. 2 One example will sufficiently illustrate this propo- § 137, 1 See 1 Spence's Eq. Jur., pp. 430^34. § 137, 2 For example, by a peculiar rule in Georgia, a person who has a high equitable estate in land, called a "complete equity," may main- tain the legal action of ejectment on it to recover possession of the land : Goodson V. Beacham, 24 Ga. 153; Jordan v. Faircloth, 27 Ga. 372, 376. A vendee in a contract for the sale of land who had paid the agreed price, and was entitled to a deed and to the possession, and who simply needed the legal title to complete his ownership, would have the "complete equity" intended by this rule. In my own opinion, the same result should §137,- (a) This paragraph of the text is quoted in Brissell v. Knapp (C. C. Nev.), 155 Fed. 809 (trusts). 167 FUNDAMENTAL PRINCIPLES AND DIVISIONS. § 137 sition. At the common law (in its earliest stages), an assignment of a thing in action conveyed no right or inter- est whatever to the assignee which would be recognized to any extent or for any purpose by a court of law. In pro- cess of time, however, an interest in the assignee came tO be acknowledged, and to be in some measure protected; but he was never regarded as obtaining a full legal right or title, so that he could maintain an action in his own name as assignee of the thing in action. ^ Equity, however, treated the assignee as succeeding to all the right and litle of the assignor, as possessing a full interest in, or, so to speak, ownership of, the thing in action transferred, and therefore permitted him to maintain the proper suit in his own name. It is an entirely mistaken view to say that equity only gave a remedy in this case, for there could be no remedy without an antecedent right. The assignee ac- quired a substantive right, an absolute interest; but it was equitable, and could therefore only be enforced by a suit in equity ; while a court of law would only permit an action to be prosecuted in the name of the assignor, in whom it said the title was still vested.'* ^ The statutes of many states have abolished this common-law xule, and enabled the assignee to sue in his own name in a court of law. The necessary effect of this legislation is to change the right follow in all the states which have adopted the reformed procedure abol- ishing all distinctions between legal and equitable actions; but the de- cisions are nearly all opposed to this view. See the question stated and discussed in Pomeroy on Remedies and Remedial Rights, §§ 98-!! 03. § 137, 3 2 Black. Com. 442 ; 1 Spenee's Eq. Jur., p. 181 ; Lampet's Case, 10 Coke, 47, 48: Winch v. Keeley, 1 Term Rep. 619; Master v. Miller, 4 Term Rep. 340; Westoby v. Day, 2 El. & B. 605, 624; Raymond v. Squire, 11 Johns. 47 ; Briggs v. Dorr, 19 Johns. 95 ; Conover v. Cutting, 50 N. H. 47. § 137, 4 1 Spenee's Eq. Jur., p. 643; Row v. Dawson, 1 Ves. Sen. 331, 2 Lead. Eq. 1531, 1559, and notes thereto. § 137, (b) The text is cited in Cloae v. Independent Gravel Co. 156 Mo. App. 411, 138 S. W. 81. § 138 EQUITY JURISPRUDENCE. 168 acquired by the assignee of a thing in action, from being purely equitable, into a legal title, interest, or ownership.^ ° § 138. The exclusive jurisdiction includes, secondly, all civil cases in which the remedy to be granted — and, of course, the remedial right — is purely equitable, or one which is recognized and administered by courts of equity, and not by courts of law. In the cases' of this class, the primary right which is maintained, redressed, or enforced is sometimes equitable and is sometimes legal ; but the juris- diction depends, not upon the nature of these rights, estates, or interests, but wholly upon the nature of the remedies.^ Cases in which the remedy sought and obtained is one which equity courts alone are able to confer must, upon any con- sistent system of classification, belong to the exclusive juris- diction of equity,^ even though the primary right, estate, or interest of the party is one which courts of law recognize, and for the violation of which they give some remedy. Thus a suit to compel the specific performance of a contract falls under the exclusive jurisdiction of equity, although a legal right also arises from the contract, and courts of law § 137, 5 See, as to these state statutes and their effect, Poraeroj' on Remedies and Remedial Rights, chap. 2, sec. 2, § § 124-138 ; Petersen v. Chemical Bank, 32 N. Y. 21, 35, 88 Am. Dec. 298, per Denio, J. : "The law of maintenance prohibited the transfer of the legal property in a chose in action, so as to give the assignee a right of action in his own name. But this is now abrogated, and such a demand as that asserted against the defendant in this suit [an ordinary debt] may be sold and conveyed, so as to vest in the purchaser all the legal as well as the equi- table rights of the original creditor." See also Cummings v. Morris, 25 N. Y. 625, 627, per Allen, J. Some dicta of judges to the contrary, to be found in a few cases, must be regarded as mistaken ; as, for example, McDonald v. Kneeland, 5 Minn. 352, 365, per Atwater, J. § 137, (c) This paragraph of the 1005, an action to quiet title. The text is cited in Deering v. Schreyer, text is cited in Curtice v. Dixon, 171 N. Y. 451, 64 N. E. 179. 73 N. H. 393, 62 Atl. 492. § 138, (a) The text is quoted in § 138, (b) The text is quoted in Montana Ore Purchasing Co. v. Bos- Mclsaac v. McMurray, 77 N. H. 466, ton & M. Consol. C. & S. Min. Co., L. R. A. 1916B, 769, 93 Atl. 115. 27 Mont. 536, 70 Pac. 1114, 71 Pac. 169 FUNDAMENTAL PRINCIPLES AND DIVISIONS. § 138 will give the remedy of damages for its violation. The remedies peculiar to equity are not confined to cases in which the primary right of the complaining party, what- ever be its kind, is equitable; they are given in numerous classes of instances where such right, estate, or interest is wholly legal. Thus a legal estate in land may be pro- tected by the exclusively equitable remedy of injunction against nuisances or continued trespasses; or the legal estate may be established against adverse claimants by a suit to quiet title, or by the remedy of cancellation to re- move a cloud from title. Again, the particular fact or event which occasions the peculiar equitable remedy, and gives rise to the right to such remedy, may also be the occasion of a legal remedy and a legal remedial right simultaneous with the equitable one. This is especially true with ref- erence to fraud, mistake, and accident. Fraud, for ex- ample, may at the same time be the occasion of the legal remedy of damages and of the equitable relief of cancella- tion. These two classes of cases cannot, however, be re- garded or treated as belonging to the concurrent jurisdic- tion ; such a mode of classification could only be productive of confusion. The criterion which I have given is always simple and certain in referring to the exclusive jurisdiction all cases in which the remedy is given by courts of equity alone, without regard to the nature of the substantive right which forms the basis of the action, or to the fact or event which is the occasion of the required relief. In this manner only is the notion of jurisdiction preserved distinct from all questions as to the propriety of exercising that jurisdic- tion and of granting relief by equity courts in particular cases. It is proper to remark here that the statutoiy legis- lation of many states has increased the number of cases in which purely equitable remedies are granted for the pur- pose of maintaining, enforcing, or defending primary rights, estates, and interests which are legal in their nature, and has thus enlarged this department of the original ex- clusive jurisdiction of equity. As examples merely, I ^ 139 EQUITY JURISPRUDENCE. 170 mention the statutory suit to quiet title and determine the legal estate by the holder of the fee in possession or not in jDossession, against an adverse claimant or claimants rely- ing perhaps upon another legal title ; ^ the suit by heirs to set aside an alleged will of lands; the ordinary equitable suit in many stated to enforce a mechanic's lien and other similar liens ; and the suits given by statute in most states to dissolve corporations or to remove their officers, and the like. § 139. Concurrent Jurisdiction. — The concurrent juris- diction embraces all those civil eases in which the primary right, estate, or interest of the complaining party sought to be maintained, enforced, or redressed is one which is cognizable by the law, and in which the remedy conferred is of the same kind as that administered, under the like cir- cumstances, by the courts of law, — being ordinarily a re- covery of money in some form.^ The primary right, the estate, title, or interest, which is the foundation of the suit, must be legal, or else the case would belong to the exclusive jurisdiction of equitj^ ; and the law must, through its judicial procedure, give some remedy of the same general nature as that given by equity, but this legal remedy is not, under the circumstances, full, adequate, and complete. The fact that the legal remedy is not full, adequate, and complete is, therefore, the real foundation of this concurrent branch of the equity jurisdiction.^ a Ti^is principle is well illustrated § 139, 1 See 1 Spence's Eq. Jur., pp. 430-i34. § 139, 2 There is a distinction here of gTeat importance, but which has often been overlooked. The want of a full, adequate, and complete remedy at law, under the circumstances of the particular case, is also §138, (c) The text is quoted and editor's note; and Pomeroy's Equi- cited in Montana Ore Purchasing Co. table Remedies, chapter "Quieting V. Boston & M. Consol. C. & S. Min. Title." Co., 27 Mont. 536, 70 Pac. 1114, 71 § 139, (a) The text is cited in Pac. 1005, discussing the equitable Henderson v. Johns, 13 Colo. 280, jurisdiction in such suits as depend- 22 Pac. 461 (suit to compel sur- ent on the plaintiff's possession. render of notes); in Gill v. Ely- See, on this subject, post, § 292, Norris Safe Co., 170 Mo. App. 478, 171 FUNDAMENTAL PRINCIPLES AND DIVISIONS. § 139 by the case of contribution among sureties. The surety entitled to reimbursement may maintain an action at law, and recover a pecuniary judgment against each of the per- sons liable to contribution, but this legal relief is subject to so many limitations that it may often fail to restore the plaintiff to his rightful position. The equity suit for a con- tribution gives exactly the same final remedy, — a recovery of money ; but on account of the greater freedom and adapt- ability to circumstances incident to the equitable procedure, it enables the plaintiff in one proceeding to obtain such the reason why the jurisdiction of equity is actually exercised, and a de- cision is made in favor of the plaintiff granting him equitable relief, in some instances of the exclusive jurisdiction; as, for examj^le, in suits for the specific performance of contracts. But such fact is not in these instances the foundation of the jurisdiction; it is only the occasion on which a decision is rightfully made in pursuance of the doctrines of equity jurisprudence by courts already possessing the jurisdiction. The juris- diction exists because courts of equity alone are competent to administer these remedies. In all instances of concurrent jurisdiction, both the courts of law and those of equity are competent to administer the same remedy, and the foundation of the jurisdiction in equity is the inadequacy of the relief as it is administered through means of the legal procedure. The exclusive jurisdiction of equity rests upon an entirely different founda- tion, and exists absolutely without reference to the adequacy of legal reliefs. This distinction is a plain one, but is often lost sight of; the two classes of cases are often confounded, and the equitable jurisdiction, in all instances exclusive and concurrent, is made to rest merely upon the inadequacy of legal remedies. This error grows out of the tendency to confound questions as to the equitable jurisdiction; i. e., the power of equity courts to hear and decide, with the altogether different questions as to the rightfulness of their decision; i. e., whether, according to the doctrines of equity, a case unquestionably within their jurisdiction was properly decided. 156 S. W. 811 (court has at least in Myers t. Sierra Valley Stock & concurrent jurisdiction, as relief Agric. Assn., 122 Cal. 669, .55 Pac. prayed was to have bill of sale 689 (remedy to enforce contribution declared a mortgage and canceled among stockholders is at law) ; Buck for fraud; and hence may administer v. Ward, 97 Va. 209, 33 S. E. 513 complete relief); in State v. Chicago (suit to recover money expended by & N. W. Ey. Co., 132 Wis. 345, 112 reason of defendant's fraud). N. W. 515 (accounting); and quoted § 140 EQUITY JURISPRUDENCE. 172 complete reimbursement as relieves him effectually from all the burden which does not properly rest upon him, and produces a just equality of recompense as well as of loss among all the parties. ^ The incidents and features of legal remedies which render them inadequate are various in their kind and extent, and will be described in a subsequent section. One of the most common and important of these features which is frequently the ground for the equitable jurisdiction is the necessity of obtaining whatever remedies the law furnishes, by means of several separate actions, either simultaneous against different persons, or succes- sive against the same person; while in equity the plaintiff may obtain full relief by one suit brought against all the parties liable or interested. This power, which the equity courts possess, of deciding the whole matter in one judicial proceeding, and of thus avoiding a repetition or circuity of legal actions, is a fruitful source of the concurrent equitable jurisdiction.'* ^ § 140. The cases included within the concurrent juris- diction may, for purposes of convenience and clearness in their discussion, be arranged under two general classes. The first contains all those cases, belonging to the concur- rent jurisdiction, in which the primary right violated, the estate, title, or interest to be protected, is, of course, legal, and the subject-matter of the suit, and the act, event, or fact which occasions the right to a remedy, may be brought within the cognizance of the law courts, and made the foun- dation of a legal action, but in respect of which the whole § 139, 3 Bering v. Earl of Winchelsea, 1 Cox, 218, 1 Lead. Cas. Eq. 120, and notes. § 139, 4 New York, etc., R. R. v. Schuyler, 17 N. Y. 592; McHenry v. Hazard, 45 N. Y. 580; Third Ave. R. R. v. Mayor, etc., 54 N. Y. 159; Eldridge v. Hill, 2 Johns. Ch. 281; West v. Mayor, etc., 10 Paige, 539; Oelrichs v. Spain, 15 Wall. 211, 228; Woods v. Monroe, 17 Mich. 238; Earl of Oxford's Case, 2 Lead. Cas. Eq. 1337, note. §139, (b) The text is cited in McMullin's Admr. v. Sandars, 79 Va. 356. See post, §§243-275. 173 FUNDAMENTAL PRINCIPLES AND DIVISIONS. § 141 system of legal remedies is so partial and insufficient that complete justice can only be done by means of the equity jurisdiction. The most important acts, events, and facts which thus require or permit the interposition of equity in the cases forming this branch of the concurrent jurisdiction are fraud, mistake, and accident. ^ ^ The second class con- tains all the remaining cases in which the primary right to be redressed or protected is legal, and the relief is of the same kind as that given by the law, but in which, from the special circumstances of the case itself, or from the inherent defects of the legal procedure, the remedy at law is inade- quate, and equity takes jurisdiction, in order to do complete justice. Among the familiar examples of this class are suits for an accounting,^ for contribution, for exoneration, in all of which the remedy, both at law and in equity, is a recovery of money ; suits for partition of land,<^ admeasure- ment of dower, and settlement of boundaries, in all of which the final relief, both at law and in equity, is the obtaining possession of specific tracts of land; and suits which result in an award of damages. § 141. It should be remarked, however, that the fore- going divisions of the jurisdiction cannot always be strictly observed in the actual practice, since one suit may often § 140, 1 All cases of equitable cognizance arising from fraud, accident, or mistake do not belong to the concurrent jurisdiction merely because the law has jurisdiction of cases arising from the same facts. Suits occasioned by fraud, in which the remedy granted is cancellation, and those occasioned by mistake, in which the remedy is a reformation, and the like, fall within the exclusive jurisdiction. The concun-ent jurisdic- tion, however, embraces a large variety of cases in which the cause of action springs from, or is occasioned by, fraud or mistake. § 140, (a) This paragraph of the 141 N. Y. 437, 38 Am. St. Eep. 807; text is cited in Stockton v. Ander- and in State v. Chicago & N. W. By. son, 40 N. J. Eq. 486, 4 Atl. 642. Co., 132 Wis. 345, 112 N. W. 515. The author's note is cited in Curtice § 140, (c) This paragraph of the V. Dixon, 73 N. H. 393, 62 Atl. 492. text is cited in Daniels v. Benedict, §140, (b) This paragraph of the 50 Fed. 347. text is cited in Eussell v. McCall, §§142,143 EQUITY JURISPRUDENCE. 174 include different kinds of the same jurisdiction, and may even embrace both the exclusive and the concurrent juris- dictions. For example, both the equitable estate of the cestui que trust and the legal estate of the trustee may be protected by means of one action based upon the exclusive jurisdiction, and many remedies belonging to the exclusive jurisdiction are combined in the same suit with a pecuniary recovery. The explanation is to be found in the general principle of the equity procedure, which requires all the parties interested in the subject of an action to be brought before the court, and the whole controversy to be settled by one adjudication. § 142. Auxiliary Jurisdiction. — The auxiliary jurisdic- tion, in its original and true scope and meaning, is in fact a special case of the ''exclusive," since its methods and objects are confined to the equity procedure. In all suits which belong to this jurisdiction in its original and proper sense, no remedy is either asked or granted; their sole object is the obtaining or preserving of evidence to be used u*pon the trial of some action at law. The cases em- braced within this proper auxiliary jurisdiction are suits for discovery, to obtain an answer under oath from a party to a pending or anticipated action at law, which answer may be used as evidence on the trial of such action; suits for the perpetuation of evidence; and suits for the obtaining of evidence in a foreign country. The latter two species of suits are practically obsolete in this country, having been superseded by more summary and efficient proceedings au- thorized by statutes.* § 143. Although the auxiliary jurisdiction for a discov- ery was originally exercised for the sole purpose above mentioned, to obtain evidence from a party litigant to be offered on the trial of a legal action, so that as soon as its §142, (a) This paragraph of the 156 Fed. 500; Turnbull v. Crick, 63 text is cited in Balfour v. San Minn. 91, 65 N. W. 135; Chapman v. Joaquin Valley Bank (C. C. Cal.), Lee, 45 Ohio St. 356, 13 N. E. 736. 175 FUNDAMENTAL PRINCIPLES AND DIVISIONS. § 144 purpose was accomplished by the filing of a proper answer the suit itself was ended, and no decree was possible, yet in some of the American states such a discovery in relation to matters in controversy purely legal has been made the ground of enlarging the concurrent jurisdiction of equity, by extending it to the very issues themselves in respect of which the discovery is obtained. In other words, where the court of equity has exercised its auxiliary jurisdiction to obtain discovery concerning any matter in controversy, even though purely legal, it thereby acquires complete juris- diction over the controversy itself, and may go on and decide the issues and grant the proper relief, although the case is one cognizable at law, and the legal remedy is fuUp adequate. Mere discovery is thus made the foundation of a concurrent jurisdiction over cases which are purely legal, both in the primary rights involved and in the remedy, without any regard to the adequacy or inadequacy of this legal remedy. This doctrine prevails, or has prevailed, in certain of the states, but it is clearly opposed to the true theory of the equitable jurisdiction. ^ It should be re- marked that in many of the states the whole auxiliary juris- diction for discovery has become useless and obsolete, through great changes made in the general law of evidence, or has been expressly abolished by statute. ^ a §144. The suit for a ''discovery" belonging to the auxiliary jurisdiction, as described in the foregoing para- graphs, should be carefully distinguished from the so-called "discovery" which may be, and ordinarily is, an incident of every equitable action. It is a part of the ordinary equity procedure, that whatever be the relief sought, and whether the jurisdiction be exclusive or concurrent, the plaintiff may, by means of allegations and interrogatories § 143, 1 See post, chap, ii, §§ 250 et seq. § 143, 2 See post, section iv. § 143, (a) The text is cited to this effect in Becker v. Frederick W. Lipps Co. (Md.), 101 Atl. 783. § 145 EQUITY JURISPRUDENCE. 176 contained in his pleading, compel the defendant to disclose by his answer facts within his own personal knowledge which may operate as evidence to sustain the plaintiff's contention. The name ''discovery." is also given to this process of probing the defendant's conscience, and of ob- taining admissions from him, which accompanies almost every suit in equity; but it should not be confounded with ''discovery" in its original and strict signification, nor with that mentioned in the last preceding paragraph, which is sometimes made the ground for extending the concurrent jurisdiction of equity over cases otherwise belonging to the domain of the common-law courts.* § 145. The foregoing summary may be appropriately concluded by a statement of the order to be pursued in the further discussion of the equitable jurisdiction thus briefly outlined. The whole subject will be distributed into three chapters, which will respectively treat of, — Chapter I., doctrines concerning the jurisdiction generally, its extent when unaffected by statutory limitations ; Chapter II., gen- eral rules for the government of this jurisdiction; Chapter III., particular jurisdiction of the courts in the various states, and of the United States courts. The three remain- ing sections of the present chapter are devoted in order to a more detailed description of the exclusive, the concurrent, and the auxiliary jurisdictions. § 144, (a) Discovery as an ordi- graph of the text is quoted in full nary incident of an action for in Balfour v. San Joaquin Valley equitaWe relief distinguished from Bank (C. C. Cal.), 156 Fed. 500. the suit for discovery. This para- §146. §§ 147-149. §150. §§ 151-155. §156. §§157,158. §§ 159, 160. §161. §§162,163. §164. §§ 165-167. §§ 168, 169. §§ 170-172. 177 THE EXCLUSIVE JURISDICTION.. § 14G SECTION n. THE EXCLUSIVE JURISDICTION. ANALYSIS. Equitable primary rights and "equities" defined. Equitable estates described. Certain distinctive equitable doctrines forming part of equity jurisprudence. Trusts described. Executors and administrators. Fiduciary relations. Married women's separate property. Estates arising from equitable converoioa. Mortgages of land. Mortgages of personal property. Equitable liens. Estates arising from assignment of things in action, possibilities, etc., and from an equitable assignment of a fund. Exclusive equitable remedies described. § 146. Equitable Estates, Interests, and Rights in Prop- erty. — It was stated in the preceding section that the exclu- sive jurisdiction included, first, all civil cases based upon or relating to equitable estates, interests, and rights in property as the subject-matter of the action, whatever may be the nature of the remedy ; and secondly, all civil cases in which the remedy granted is purely equitable, that is, ad- ministered by courts of equity alone, whatever may be the nature of the primary right, estate, or interest involved in the action. I purpose now to describe these two classes in a general manner. Equitable primary rights, interests, and estates may exist in things real and in things personal, in lands and in chattels. They are also of various amounts and degrees, from the substantial beneficial ownership of the subject-matter down to mere liens. In all cases, how- ever, they are rights in, to, or over the subject-matter, recognized and protected by equity, and are to be distin- guished from the so-called * * equities, ' ' a term which, when properly used, denotes simply the right to some remedy 1—12 § 147 EQUITY JURISPRUDENCE. 178 administered by courts of equity.^ ^ A cestui que trust, a mortgagee, a vendee in a contract for the sale of land, is clothed with an equitable estate or interest ; while the mere right to have an instrument reformed or canceled, or to have a security marshaled, and the like, is properly "an equity. ' ' § 147. Equitable Estate Defined. — An equitable estate, in its very conception, and as a fact, requires the simulta- neous existence of two estates or ownerships in the same subject-matter, whether that be real or personal, — the one legal, vested in one person, and recognized only by courts of law; the second equitable, vested in another person, and recognized only by courts of equity. These two in- terests must be separate, and as a rule, must be held by different persons ; for if the legal estate and the equitable estate both become vested in the same person by the same right, then, as a general rule, a merger takes place, and the legal estate alone remains. ^ There are indeed ex- ceptions to this general doctrine; for under certain cir- cumstances, as will appear hereafter, equity prevents such a merger, and keeps alive and distinct the two interests, although they have met in the same owner.^ In all cases of equitable estates, as distinguished from lesser interests, whether in fee, for life, or for years, they are in equity what legal estates are in law; the ownership of the equi- table estate is regarded by equity as the real ownership, and the legal estate is, as has been said, no more than the § 146, 1 The term "an equity" is thus synonymous with what I have denominated an equitable remedial right. It is, however, constantly used in a broader and improper sense, as describing every kind of right which equity jurisprudence recognizes, — estates and interests in land, or chattels, liens, and rights to obtain remedies. Such indiscriminate use of the term only tends to produce confusion of thought. § 147, 1 Selby v. Alston, 3 Ves. 339. § 147, 2 These apparent exceptions really confirm the general rule. § 146, (a) This paragraph of the Coal & Nav. Co., 24 Pa. Co. Ct. Rep. text is cited in Mengel v. Lehigh 152. 179 THE EXCLUSIVE JURISDICTION. § 148 shadow always following the equitable estate, which is the substance, except where there is a purchaser for value and without notice who has acquired the legal estate.^ a This principle of a double right, one legal and the other equi- table, is not confined to equitable estates, properly so called; it is the essential characteristic of every kind of equitable interest inferior to estates. In the total owner- ship resulting from mortgages, or from the operation of the doctrine of conversion, or from the assignment of things in action, and other interests not assignable at law, and in liens, there is always a legal title or estate vested in one person, recognized by courts of law alone, and an equitable interest, ownership, or claim, distinct from a mere right of action or remedial right, vested in another person, which is recognized, and, according to its nature, protected or enforced by courts of equity. § 148. Equitable estates and interests of all kinds are separated by a broad line of distinction, with respect to their nature and the mode in which equity deals with them, into two classes. The first class contains those in which the equitable estate is regarded as a permanent, subsist- ing ownership; the separation between the legal and equi- table titles is not treated as an anomaly, much less a wrong, but as a fixed and necessary condition to be pre- § 147, 3 Attorney-Gen. v. Downing, Wilm. 23 ; Burgess v. Wheate, 1 Eden, 223 ; Mansell v. Mansell, 2 P. Wms. 681 ; Williams v. Owens, 2 Ves. 603; Brydges v. Brydges, 3 Ves. 120. As to the descent of equitable estates as contradistinguished from mere equitable rights of action or "equities," see Trash v. Wood, 4 Mylne & C. 324, 328; Roberts v. Dix- well, 1 Atk. 609. For example of equitable estate in fee under the doe- trine of conversion descending to heir, see Martin v. Trimmer, L. R. 11 Ch. Div. 341. §147, (a) This paragraph of the Co. v. Cahn, 102 Md. 530, 62 Atl. text is quoted in Patty v. Middleton, 819; in Watts v. Spencer, 51 Or. 262, 82 Tex. 586, 17 S. W. 909, discussing 94 Pac. 39 (equitable title to a the equitable estate of the wife in water right protected by injunc- "community" property under the tion). Texas law; in Safe Deposit & Trust § 148 EQUITY JURISPRUDENCE. 180 served as long as the equitable interest continues ; and the various rules and doctrines of equity are concerned with the respective rights and liabilities of the two owners, while the remedies given to the equitable owner are in- tended to preserve his estate, and to protect it both against the legal owner and against third persons. The class em- braces most species of express trusts, the interests created by mortgages as originally established by the court of chancery, the interests resulting from an assignment of things in action. These various species of equitable es- tates and interests might well be described by applying to them the term ''permanent." In the second class the separation of the two interests is regarded as always temporary, and in many instances as actually wrongful. There is a certain antagonism between the equitable and the legal ownership or right, and the very existence of the legal estate is often in complete violation of the rights of the equitable owner. The doctrines and rules of equity concerning this class do not contemplate" a permanent separation between the two interests; the rights of the equitable owner are hostile to those of the legal pro- prietor; while the remedies given to the equitable owner always have for their object the perfecting of his rights against the legal estate, and very generally consist in com- pelling a complete transfer of the legal estate, so that the equitable owner shall obtain the legal title in addition to the equitable interest which he already possesses. The class embraces resulting, implied, and constructive trusts, the interests arising from the operation of the doctrine of conversion, and liens, including the equitable interest of mortgagees according to the doctrine which prevails in many of the states. Equitable estates of the first class are very numerous in England, by reason of the customs of landed proprietors and the frequency of marriage settle- ments, provisions for families in wills, the separate prop- erty of married women, charitable foundations, and other species of express trusts ; and a very large part of equity 181 THE EXCLUSIVE JURISDICTION". §§149,150 as administered in England is concerned with these perma- nent equitable estates. Although not unknown, they are, from our widely different social customs and practices of land-owners, comparatively very infrequent in this country. § 149. From the universality of this double ownership, or separation of the legal and equitable titles between two proprietors or holders, which is an essential feature of trusts, all species of equitable estates and interests might possibly be regarded as particular kinds of trusts, or as special applications of the general principles concerning trusts. Thus the holder of the legal title in assignments of things in action, in cases of conversion, in mortgages and in liens, no less than in trusts proper, is frequently spoken of as the trustee, and the holder of the equitable interest as the cestui que trust. It would be possible, therefore, to treat the entire jurisdiction of equity over equitable estates and interests, and these estates and in- terests themselves, as based upon and included within the single subject of trusts. ^ But this method, while resting upon some analogies and external resemblances, would overlook essential differences between the various estates and interests created by equity, and would therefore be misleading. Still, as this form of a double ownership or right originated in the notion of trusts, and as all the species of equitable interests are connected by analogy, more or less closely, with trusts, it becomes necessary to explain the essential nature of trusts, and to describe the introduction and development of their conception with some detail. § 150. I would remark, in this connection, so as to pre- vent misunderstanding, that there are many important and even fundamental principles and doctrines which are applied in all parts of the equity jurisprudence, but which § 149, 1 This method has been pursued partially, if not wholly, by some text-writers: See Willard's Eq. Jur. § 150 EQUITY JUKISPRUDENCE. 182 do not belong to a statement of its jurisdiction. These doctrines do not determine the existence of equitable es- tates and interests, nor fix the form and nature of equitable remedies; but they aid in defining and regulating the rights, duties, and liabilities incident to such estates and interests, and furnish rules concerning their enjoyment, transfer, devolution, and the like; and they also serve to determine the occasions on which rights of action arise, the extent to which parties are entitled to remedies, and the kind of remedy appropriate' to secure or restore the primary right invaded. Among these important prin- ciples and doctrines of equity I mention, as illustrations, the rules established for the construction of wills and deeds; the principles which are especially concerned with the administration of estates, and the settlement of the claims of creditors, encumbrancers, devisees, legatees, and others, upon funds belonging to the same debtor, including the doctrines of equitable and legal assets, of contribution and exoneration, of marshaling assets and securities, of election, of satisfaction and performance, of priorities, and of notice ; and other principles of equal importance, the equitable position of bona fide purchasers, the theory of valuable and meritorious consideration, the appropria- tion of pa\Tnents and the apportionment of liabilities, the relations between sureties and their creditors and the prin- cipal debtors, the control of transactions between persons in fiduciary relations, the equitable theory as to forfeitures and penalties, and the general doctrines concerning fraud, mistake, accident, public policy, and the like. These and other fundamental principles and doctrines are invoked and applied throughout every branch of equity jurispru- dence; they aid, to a greater or less extent, in controlling every species of equitable primary right, estate, or inter- est, and in regulating every kind of remedial right and remedy recognized by courts of equity. While they form no part of the jurisdiction, properly so called, they consti- tute a most important feature of the equity jurisprudence, 183 THE EXCLUSIVE JURISDICTION. § 151 and will be discussed under their appropriate connections in subsequent chapters. The purely equitable estates and interests which come within the exclusive jurisdiction and constitute the first branch thereof are the following, sepa- rated, for purposes of convenience as to treatment, into general groups: Trusts; married women's separate prop- erty; equitable interests arising from the operation of the doctrine of conversion; equitable estates or interests aris- ing from mortgages of real or of personal property, and from pledges of chattels or securities; equitable liens on real and on personal property; equitable interests of as- signees arising from assignments of things in action, pos- sibilities, and the like, not assignable at law, or arising from transactions which do not at law operate as assign- ments. i I shall describe with only so much detail as is necessary each one of these groups in order. § 151. Trusts.a — The whole theory of trusts, which forms so large a part of the equity jurisprudence, and which is, in a comprehensive view, the foundation of all equitable estates and interests, has undoubtedly been developed from its germ existing in the Eoman law, a peculiar mode of disposing of property by testament called the '^fidei-commissum/' In a fidei-commissum the tes- tator gave his estate directly to his heir, but accompanied the bequest with a direction or request that the heir should, on succeeding to the inheritance, at once transfer it to a specified beneficiary. At first the claims of the beneficiary were purely moral, resting wholly upon the good faith of the heir; but in process of time they became vested rights, § 150, 1 See 1 Spence's Eq. Jur., 429-434, 435-593, 594-598, 599-604. 642. To these might be added, as an example of equitable primary rights not being estates or interests in nor liens on specific property, the right in equity of a creditor against the personal representatives of a deceased joint debtor, although his right is wholly gone at law; and the similar right of the personal representatives of a deceased joint creditor. § 151, (a) This paragraph is cited in Brissell t. Knapp (C. 0. Nev.), 155 Fed. 809. § 151 EQUITY JURISPJIUDENCE. 184 recognized by the law and enforced by the magistrates. ^ Borrowed from this Roman conception, ''uses," by which land was conveyed to or held by A to the use or for the benefit of B, seem to have been invented during the latter part of the reign of Edward III.2 They grew rapidly into favor, and it is said that during the reign of Henry V. the greater part of the land in England was held in this manner. The ''trusts," however, of modern equity juris- prudence are all directly based upon the celebrated ''Stat- ute of Uses," passed in the twenty-seventh year of the reign of Henry VIII. (A. D. 1535), although the principal doctrines which define their kinds and classes and regu- late their operation may be traced to the uses existing jjrior to the statute. Henry VIII., in compelling Parlia- ment to enact the statute of uses, undoubtedly intended to destroy the entire system of conveyances to uses, by which the legal and equitable estates in land were separated, and vested in different owners, and which, for many reasons, he regarded as a fraud upon his legal rights and pre- rogatives; but in fact no such result followed. From the peculiar language of the enacting clause, and by the judi- cial interpretation placed thereon, all the various kinds of double ownership which had before existed under the name of "uses" were preserved under the name of "trusts." The whole system fell within the exclusive jurisdiction of chancery ; the doctrine of trusts became and continues to be the most efficient instrument in the hands of a chancellor for maintaining justice, good faith, and good conscience; and it has been extended so as to embrace not only lands, but chattels, funds of every kind, things in action, and moneys.^ I shall merely state, without de- § 151, 1 See Institutes of Justinian, b. ii, tit. 23, § 1 j Sandars's ed., pp. 237, 238; Institutes of Gaius, ii., §§ 246-259. § 151, 2 1 Spence's Eq. Jur. 439-442. § 151, (b) The text is quoted in Clark v. Spanley, 122 Ark, 366, 183 Mitchell V. Bank of Indianola, 98 S. W. 964. Miss. 658, 54 South. 87; and cited in 185 THE EXCLUSIV-E JURISDICTION. §§ 152, 153 scribing in this part of my work, the various kinds and classes of trusts which are thus subject to the exclusive equitable jurisdiction. § 152. All possible trusts, whether of real or personal property, are separated by an important line of division into two great classes : those created by the intentional act of some party having the dominion over the property, done with a view to the creation of a trust, which are ex- press trusts; those created by operation of law, where the acts of the parties may have had no intentional reference to the existence of any trust, which are implied trusts. Express trusts are again separated into two general classes: private and public. Private trusts are those created by some written instrument, deed, or will, or in some trusts of personal property by a mere verbal declara- tion, without any writing, for the benefit of certain and designated individuals, in which the cestui que trust, or "beneficiary," is a known and certain person or class of persons. Public, or as they are frequently termed, chari- table, trusts are those created for the benefit of an unas- certained, or uncertain, and sometimes fluctuating body of individuals, in which the cestuis que trustent may be a class or portion of a public community, as, for example, the poor of a particular town or parish.^- § 153.a Express private trusts are either ** passive" or '^ active." An express private passive trust exists where land is conveyed to or held by A in trust for B, without any power expressly or impliedly given to A to take the actual possession of the land, or to exercise acts of owner- ship over it, except by the direction of B. The naked legal title only is vested in A, while the equitable estate of the cestui que trust is to all intents the beneficial ownership, § 152, (a) This paragraph is cited Crane, 80 N. J. Bq. 509, 43 L. R. A. • TT -4. J oi. X Ti:;i V* p r. „ (N. S.) 604, 85 Atl. 408. in United States Fidelity & Guar- ^ ' ' § 153, (a) This paragraph is cited anty Co. v. Smith, 103 Ark. 145, 147 .^ ^^^^^^^ ^ ^^^^^^^ ^^ ^^^ ^ ^^ S. W. 54; Franklin Township v. 425 72 Atl. 960. § 153 EQUITY JURISPRUDENCE. 186 virtually equivalent in equity to the corresponding legal estate.^ Express private active, or as they are sometimes called, special, trusts are those in which, either from the express directions of the written instrument declaring the trust, or from the express verbal directions, when the trust is not declared in writing, or from the very nature of the trust itself, the trustees are charged with the per- formance of active and substantial duties in respect to the management of and dealing with the trust property, for the benefit of the cestuis que trustent. They may, except where restricted by statute, be created for every purpose not unlawful, and as a general rule, may extend to every kind of property, real and personal. In this class, the interest of the trustee is not a mere naked legal title, and that of the cestui que trust is not the real ownership of the subject-matter. The trustee is generally entitled to the possession and management of the property, and to the re- ceipt of its rents and profits, and often has, from the very nature of the trust, an authority to sell or otherwise dis- pose of it. The interest of the beneficiary is more limited than in passive trusts, and in many instances cannot with accuracy be called even an equitable estate. He always has the right, however, to compel a performance of the trust according to its terms and intent.^ The foregoing classes of express private trusts are all embraced within the general exclusive jurisdiction of equity as it is estab- lished by the English court of chancery; and they belong to the same jurisdiction as it is administered in the states of this country, except so far as they have been abrogated or modified by statute. In some of the states the legis- lature has not interfered, so that all these species of pri- §153, 11 Spence's Eq. Jur. 495-497; Cook v. Fountain, 3 Swanst. 591, 592, per Lord Nottingham; Adair v. Shaw, 1 Schoales & L. 262. per Lord Redesdale; Lloyd v, Spillett, 2 Atk. 150; Raikes v. Ward, 1 Hare, 447, 454. §153, 2 1 Spence's Eq. Jur. 496, 497; Lord Glenorchy v. Bossville. Cas. t. Talb. 3. 187 THE EXCLUSIVE JURISDICTION. § 154 vate trusts have a theoretical, even if not an actual, exist- ence. In several of the states, however, great changes have been made by statute. By the common type of this legislation, wherever it has been adopted, all express pri- vate passive trusts in land have been abolished, and the express private active trusts have been restricted to a few specified forms and objects. ^ § 154. Express Public Trusts or Charities. — In private trusts there is not only a certain trustee who holds the legal estate, but there is a certain specified cestui que trust. It is an essential feature of public or charitable trusts, that the beneficiaries are uncertain, a class of persons de- scribed in some general language, often fluctuating, chan- ging in their individuals, and partaking of a quasi public character. The most patent examples are ''the poor" of a specified district, in a trust of a benevolent character, or ''the children" of a specified town, in a trust for educa- tional purposes. It is a settled doctrine in England and in many of the American states, that personal property, and real property except when prohibited by statutes of mortmain, may be bequeathed or conveyed in trust for charitable uses and purposes, for the benefit of such un- certain classes; and if the purposes are charitable within the meaning given to that term, the trust falls within the jurisdiction of equity, and will be enforced. ^ The trusts § 153, 3 As examples of this type of legislation, see 1 R. S. of N. Y., p. 727, §§45-65; CivU Code of Cal., §§847, 852, 857-871. § 154, 1 Moriee v. Bishop of Durham, 9 Ves. 399, 405, 10 Yes. 522, 541; Mitford v. Reynolds, 1 Phila. 185; Nash v. Morley, 5 Beav. 177; Kendall v. Granger, 5 Beav. 300; Townsend v. Cams, 3 Hare, 257; Nightingale v. Goulburn, 5 Hare, 484; Attorney-General v. Aspinal, 2 Mylne & C. 613, 622, 623; British :Musenm v. White, 2 Sim. & St. 594, 596; Coggeshall v. Pelton, 7 Johns. Ch. 292, 11 Am. Dec. 471; Salton- stall V. Sanders, 11 Allen, 446 ; American Academy v. Harvard College, 12 Gray, 582; Jackson v. Phillips, 14 Allen, 539, per Gray, J. Trusts for private objects do not fall within the jurisdiction over charitable trusts, and are void if they create perpetuities; as, for example, those for the erection or repair of private tombs or monuments : In re Rickard, § 154 EQUITY JURISPRUDENCE. 188 over which this peculiar jurisdiction extends, and which mark its special nature, should not be confounded with gifts to corporations which are authorized by their char- ters to receive and hold property, and apply it to objects which fall, perhaps, within the general designation of *' charitable." Such gifts are regulated either by the rules of law applicable to corporations, or by the provisions of their individual charters. 2 There is a wide divergence among the states of this country in their acceptance of the doctrine concerning charitable trusts. In some of them, either from a statutory abolition of trusts, or from the general provisions of statutes concerning perpetuities, or from the general public policy of the state legislation, it is held that charitable trusts do not exist at all, except in the instances expressly authorized by statute, which are all gifts to corporations. 3 In a much larger number of the states, the jurisdiction over charitable trusts, either on the ground that the statute of Elizabeth is in force, or as a part of the ordinary powers of equity, has been accepted in a modified form and to a limited extent, and such trusts are upheld only when the property is given to a trustee sufficiently certain, and for purposes and beneficiaries sufficiently definite. In a very few of the states the juris- diction seems to be accepted to its full extent, and to be exercised in substantially the same manner as it is by the English court of chancery.'* 31 Beav. 244; Fowler v. Fowler, 33 Beav. 616; Hoare v. Osborne, L. R. 1 Eq. 585; or those to found a private museum: Thompson v. Shakespeare, 1 De Gex, F. & J. 399; or those for the benefit of a private company: Attorney-General v. Haberdashers' Co., 1 Mylne & K. 420; or for a mere private charity; Ommanney v. Butcher, Turn. & R. 260. § 154, 2 See Levy v. Levy, 33 N. Y. 97, 112-118, per Wright, J. ; Baseom v. Albertson, 34 N. Y. 584, 587-621, per Porter, J. § 154, 3 New York is a leading example of this class : See Baseom v. Albertson, 34 N. Y. 584 ; Levy v. Levy, 33 N. Y. 97 ; Beekman v. Bonsor, 23 N. Y. 298, 80 Am. Dec. 269; Holmes v. Mead, 52 N. Y. 332, 339; Burrill v. Boardman, 43 N. Y. "254, 263, 3 Am. Rep. 694; Adams v. Perry, 43 N. Y. 487. § 154, 4 See Part Third, Chapter of Charitable Trusts, post. 189 THE EXCLUSIVE JURISDICTION. § 155 § 155. Trusts Arising by Operation of Law. — The sec- ond great division of trusts, and the one which in this country especially affords the widest field for the jurisdic- tion of equity in granting its special remedies so superior to mere recoveries of damages, embraces those which arise by operation of law from the deeds, wills, contracts, acts, or conduct of parties, without any express intention, and often without any intention, but always without any words of declaration or creation.^ They are of two species, "resulting" and ''constructive," which latter- are some- times called trusts ex maleficio; and both these species are properly described by the generic term "implied trusts." ^ Resulting trusts arise where the legal estate is disposed of or acquired, not fraudulently or in the violation of any fiduciary duty, but the intent in theory of equity appears or is inferred or assumed from the terms of the disposi- tion, or from the accompanying facts and circumstances, that the beneficial interest is not to go with the legal title. § 155, 1 There is another kind which are sometimes, but very improp- erly, called "implied" trusts; namely, where a party, by a written instru- ment, deed, or will, has intended to create a trust for some specific object, and has used language showing that intent; but the language he has employed does not in express terms declare and create the trust, so that the court, in deciding upon the effect of the instrument, is obliged to construe or interpret the words, in order that they may amount to a declaration of the trust. The most familiar illustration is that of a trust arising from mere precatory words in a deed or will. These trusts have no resemblance whatever to those which "arise by operation of law"; they are in every respect express trusts, either active or passive; they only differ in form from ordinary express trusts from a certain vagueness or incompleteness of the language used to create or declare them, so that a court is forced to interpret this language. When interpreted, it be- comes in every sense an express declaration of the trust. To include these instances among implied trusts is to violate every principle of true classification, and to introduce an unnecessary confusion into the subject. All true implied trusts differ from express trusts, not only in the manner of their creation, but also in their essential features and qualities. §155, (a) The text is quoted in Morris v. Newlin Lumber Co., 100 Ark. 253, 140 S. W. 1. § 155 EQUITY JURISPRUDENCE. 190 In such a case a trust "results" in favor of the person for whom the equitable interest is thus assumed to have been intended, and whom equity deems to be the real owner.^^ Constructive trusts are raised by equity for the purpose of working out right and justice, where there was no in- tention of the party to create such a relation, and often directly contrary to the intention of the one holding the legal title. All instances of constructive trust may be re- ferred to what equity denominates fraud, either actual or constructive, including acts or omissions in violation of fiduciary obligations. If one party obtains the legal title to property, not only by fraud or by violation of confidence or of fiduciary relations, but in any other unconscientious manner, so that he cannot equitably retain the property which really belongs to another, equity carries out its theory of a double ownership, equitable and legal, by im- pressing a constructive trust upon the property in favor of the one who is in good conscience entitled to it, and who is considered in equity as the beneficial owner.^c Courts § 155, 2 The following cases furnish illustrations : Ackroyd v. Smith- son, 1 Brown Ch. 503, 1 Lead. Cas. Eq. 1177; Robinson v. Taylor, 2 Brown Ch. 589; Berry v. Usher, 11 Ves. 87; Watson v. Hayes, 5 Mylne & C. 125; Jessop v. Watson, 1 Mylne & K. 665; Eyre v. Marsden, 2 Keen, 564; Burley v. Evelyn, 16 Sim. 290; Wood v. Cone, 7 Paige, 472, 476; Wood V. Keyes,- 8 Paige, 365, 369; Millard v. Hathaway, 27 Cal. 119; Malony v. Sloans, 44 Vt. 311. § 155, 3 1 Perry on Trusts, § 166 ; 1 Spenee's Eq. Jur. 511, 512 ; Mc- Laue V. Johnson, 43 Vt. 48; Collins v. Collins, 6 Lans. 368; Thompson V. Thompson, 16 Wis. 94; Pillow v. Brown, 26 Ark. 240; Ryan v. Dox, §155, (b) The text is quoted in 252; Morris v. Newlin Lumber Co., Springer v. Young, 14 Or. 280, 12 100 Ark. 253, 140 S. W. 1; Teich Pac. 400. The text is cited in v. San Jose Safe Deposit Bank Flesner v. Cooper, 39 Okl. 133, 134 of Savings, 8 Cal. App. 397, 97 PaC •Pac. 379; Aylesworth v. Aylesworth 167; in Davenport v. Burke (Idaho), (Ind. App.), 160 N. E. 907; and 167 Pac. 481; in Holliday v. Perry, quoted in Morris v. Newlin Lumber 38 Ind. App. 588^ 78 N. E. 877 Co., 100 Ark. 253, 140 S. W. 1. (the fraud which gives rise to a § 155, (c) Constructive Trusts. — constructive trust need not be in The text is quoted in Patterson v. the inception of the transaction); Dickinson, 193 Fed. 328, 113 C, C. A. in Springer v. Young, 14 Or. 280, 12 191 THE EXCLUSIVE JURISDICTION. § 156 of equity, by tliiis extending the fundamental principle of trusts — that is, the principle of a division between the legal estate in one and the equitable estate in another — to cases of actual or constructive fraud and breaches of good faith, are enabled to wield a remedial power of tremendous efficacy in protecting the rights of property. § 156. Executors and Administrators — Estates of De- ceased Ov/ners. — The theory of trusts express and implied having been established, it was easily extended to certain other analogous subjects which were thus brought within the equitable jurisdiction. One of the most important of these was the administration of the estates of deceased persons. The relation subsisting between executors and administrators on the one hand, and legatees, dis- tributees, and creditors on the other, has so many of the features and incidents of an express active trust, that it has been completely embraced within the equitable juris- diction in England, and also in the United States, where statutes have not interfered to take away or to abridge the jurisdiction.^- At the common law no action lay to re- 34 N. Y. 307, 90 Am. Dec. G96; Dodd v. Wakeman, 26 N. J. Eq. 484; Green v. Ball, 4 Bush, 5S6; Hunt v. Roberts, 40 Me. 187; Hodges v. Howard, 5 R. I. 149; Laing v. McKee, 13 Mich. 124, 87 Am. Dec. 738; Nelson v. Worrall, 20 Iowa, 469; Coyle v. Da\is, 20 Wis. 593; Hidden v. Jordan, 21 Cal. 92; Sandfoss v. Jones, 35 Cal. 481. Pac. 400; in Clongh v. Dawson, 69 oil leases for his principal, purchases Or. 52, 133 Pac. 345, 138 Pac. 233; for himself); Harrop v. Cole, 85 Kersey v. Kersey, 76 W. Va. 70, 85 N. J. Eq. 32, 95 Atl. 378 (agent to S. E. 22. The text is cited in Bris- buy purchases with his own money sell V. Knapp (C. C. Nev.), 155 Fed. for himself); and paraphrased in 809; in Sanguinetti v. Eossen, 12 Wellner v. Eckstein, 105 Minn. 444, Cal. App. 623, 107 Pac. 560 (con- 117 N. W. 830, in the very instructive structive trust arising from convey- opinion of Elliott, J., holding that ance to attorney on his oral promise in case of inheritance by a murderer to execute a writing reciting the from the person murdered, he takes terms of the trust) ; in Bellevue title as trustee ex malef.cio. State Bank v. Coffin, 22 Idaho, 210, § 156, (a) The text is quoted in 125 Pac. 816; Fox v. Simons, 251 111. Newberry v. Wilkinson, 199 Fed. 316, 96 N. E. 233 (agent to purchase 673, 678, 118 C. C. A. 111. § 156 EQUITY JURISPRUDENCE. 192 cover a legacy, unless it was a specific legacy of goods, and the executor had assented to it so that the property therein vested in the legatee. ^ Although individual creditors might recover judgments at law for the amount of their respective claims, the legal procedure furnished absolutely no means by which the rights and claims of all distributees, legatees, and creditors could be ascertained and ratably adjusted, the assets proportionably distributed among those having demands of an equal degree as to priority, and the estate finally settled. The power of the ancient '* spiritual courts" over the subject-matter was also very limited and imperfect; in many instances it could furnish no relief, and was at best but ''a lame jurisdiction." 2 Where the claim against an estate was purely equitable, as where a testator had charged land with his debts or legacies, thus creating an equitable lien, or had devised property in trust for the payment of debts or legacies, and the like, the court of chancery had, of course, an original and exclusive jurisdiction. In all other cases it obtained a jurisdiction because its relief was more complete, and it alone could provide for the rights and claims of all par- ties. This jurisdiction at length became firmly estab- lished and practically exclusive on this ground of trusts; that the relation between the executor or administrator and the parties interested in the estate is virtually one of express trust, which equity has always the power to en- force.3i> Throughout the great majority of the United States, however, this jurisdiction of equity, even where not expressly abrogated, has become virtually obsolete. ° § 156, 1 Deeks v. Strutt, 5 Tenn Rep. 690 ; Doe v. Guy, 3 East, 120. § 156, 2 See Pamplin v. Green, 3 Cas. Chan. 95 ; Matthews v. Newby, 1 Vern. 134, 2 Freem. 189; Petit v. Smith, 5 Mod. 247. § 156, 3 See Adair v. Shaw, 1 Sehoales & L. 262, per Lord Redesdale; Anonymous, 1 Atk. 491, per Lord Hardwieke. § 156, (b) The text is cited to this § 156, (c) The text is quoted in effect in Siglin v. Smith, 168 Ala. Price v, Laing, 67 W. Va. 373, 68 398, 53 South. 260. S. E. 24. 193 THE EXCLUSIVE JURISDICTION". § 157 Partly from prohibitory and partly from permissive stat- utes, the jurisdiction over the administration of decedents' estates in all ordinary cases has been wholly withdrawn from the equity tribunals and exclusively exercised by the probate courts in all the states, with very few exceptions.^ Although the general jurisdiction of equity over the sub- ject of administrations is thus practically, and even in some instances expressly, abolished in so many states, still the jurisdiction remains in all matters of trust created by or arising from the provisions of wills; and thus a large field is left for the exercise of the equitable jurisdiction in the construction of wills, and in the determination and en- forcement of equitable rights, interests, and estates created and conferred thereby.^ ^ § 157. Fiduciary Relations. — The equitable doctrine of trusts has also been extended so as to embrace, either wholly or partially, many other relations besides those of trusts created by private owners of property. Guardians of infants, committees or guardians of the insane, re- ceivers, directors, and other managers of stock corpora- tions, and the like, are in a general sense trustees, or rather quasi trustees, in respect of the particular persons towards whom they stand in a fiduciary relation, — the § 156, 4 See post, chap, iii., sec. ii., §§ 346-352, where this matter is more fully described. § 156, 5 Whitman v. Fisher, 74 111. 147; Campbell's Appeal, 80 Pa. St. 298; Harris v. Yersereau, 52 Ga. 153; Dorsheimer v. Rorback, 23 N. J. Eq. 46 ; Youmans v. Youmans, 26 N. J. Eq. 149 ; Haag v. Sparks, 27 Ark. 594; Jones v. Jones, 28 Ark. 19; Duncan v. Duncan, 4 Abb. N. C. '275; Marlett v. Marlett, 14 Hun, 313; Chipman v. Montgomery, 63 N. Y. 221; Bailey v. Briggs, 56 N. Y. 407; Brundage v. Brundage, 65 Barb. 397; Collins v. Collins, 19 Ohio St. 468; Perkins v. Caldwell, 77 N. C. 433; Heustis v. Johnson, 84 111. 61; Matter of Broderick's Will, 21 Wall. 504. § 156, (d) This paragraph is cited South. 84. See, as to the jurisdic- in Jenkins y. Jenkins, 83 S. C. 537, tion in administration of decedents' 65 S. E. 736. The text is cited in estates, post, §§ 1152-1154, and notes. Benedict v. Wilmarth (Fla.), 35 1—13 § 158 EQUITY JURISPRUDENCE. 194 wards, stockholders, etc.^^ But the analogy should not be pushed too far. The trust which exists in these and simi- lar cases is not of so high and complete a character that equity has an exclusive jurisdiction over the rights and interests of the beneficiaries, to maintain and enforce them against the trustees. The law, by means of its actions ex cequo et bono, supplies the beneficiaries with sufficient remedies for many violations of such fiduciary relations. The relations in which such persons stand towards their beneficiaries partake so much of the trust character, how- ever, that equity possesses a jurisdiction in many instances where its remedies are more effective, or its modes of procedure enable the court to do more complete justice by its decrees. § 158. While the jurisdiction of equity in these last- mentioned cases of fiduciary relations is concurrent and depends upon the superiority of its remedies, the exclusive jurisdiction in the cases before described of private ex- press trusts proper, whether passive or active, is wholly § 157, 1 Keech v. Sanford, Sel. Cas. Ch. 61, 1 Lead. Cas. Eq. 48; Fox V. Maekreath, 2 Brown Ch. 400, 2 Cox, 320, 1 Lead. Cas. Eq. 188; Monet V. Paske, 2 Atk. 54 ; Kimber v. Barber, L. R. 8 Ch. 56 ; Powell v. Glover, 3 P. Wms. 252; Wedderburn v. Wedderbum, 4 Mylne & C. 41; Gt. Luxembourg R'y Co. v. Magnay, 25 Beav. 586 ; Docker v. Somes, 2 Mylne & K. 665; Knox v. Gye, L. R. 5 H. L. 656, 675; Gresley v. Mousley, 4 De Gex & J. 78, 3 De Gex, F. & J. 433; Holman v. Loynes, 4 De Gex, M. & G. 270; Hesse v. Briant, 6 De Gex, M. & G. 623; Knight v. Bowyer, 2 De Gex & J. 421, 445; Savery v. King, 5 H. L. Cas. 627; Dodge v. Woolsey, 18 How. 331, 341 ; Koehler v. Black R., etc., Co., 2 Black, 715 ; Butts v. Wood, 37 N. Y, 317; Bliss v. Matteson, 45 N. Y. 22; Neall v. Hill, 16. Cal. 145, 76 Am. Dec. 508. §157, (a) The text is cited in Hammersmith (Ind. App.), 81 N. E'. Benedict v. Wilmarth (Fla.), 35 614 (same) ; Mitchell v. Bank of In- South. 84; in Donahue v. Quacken- dianola, 98' Miss. 658, 54 South, 87. bush, 75 Minn. 43, 77 N. W. 430 See, also, Campbell's Automatic (receiver as trustee) ; in Frieker v. Safety Gas Burner Co. v. Hammer, American Mfg. & Imp. Co., 124 Ga. 78 Or. 612, 153 Pac. 475 (joint ad- 165, 52 S. E. 65 (corporation di- venturers), rectors and managers) ; Tevis v. 195 THE EXCLUSIVE JURISDICTION. § 155 independent of the nature of the remedies given. The actual remedies which a court of equity gives depend upon the nature and object of the trust; sometimes they are spe- cific in their character, and of a kind which the law courts cannot administer, but often they are of the same general kind as those obtained in legal actions, being mere re- coveries of money. A court of equity will always by its decree declare the rights, interest, or estate of the cestui que trust, and will compel the trustee to do all the specific acts required of him by the terms of the trust. It often happens that the final relief to be obtained by the cestui que trust consists in the recovery of money. This rem- edy the courts of equity will always decree when necessary, whether it is confined to the payment of a single specific sum, or involves an accounting by the trustee for all that he has done in pursuance of the trust, and a distribution of the trust moneys among all the beneficiaries who are entitled to share therein.* § 159. Married Women's Separate Property. — The married woman's separate estate, prior to any legislation on the subject, is merely a particular case of trusts, and the jurisdiction of equity over it has been long estab- lished.i As the wife's interest in the property held to her separate use is wholly a creature of equity, the equitable jurisdiction over it is of course exclusive; and in direct antagonism to the common-law theory, equity regards and treats the wife, with respect to such separate estate, as though she were unmarried.^ This equitable separate es- § 159, 1 See Drake v. Storr, 1 Freem. 205, which shows that in 1695 the wife's separate estate was a well-settled doctrine of equity. § 159, 2 Lady Arundel v. Phipps, 10 Yes. 140 ; Grigby v. Cox, 1 Ves. Sen. 517 ; Hulme v. Tenant, 1 Brown Ch. 16 ; Field v. Sowle, 4 Russ. 112 ; Owens V. Dickenson, Craig & P. 48; Nantes v. Con-oek, 9 Ves. 189; Aylett § 158, (a) Exclusive Jurisdiction Indianola, 98 Miss. 658, 54 South. Embraces All Cases of Express 87; and cited in Warren v. Warren, Trusts.— This paragraph of the text 75 N. J. Eq. 415, 72 Atl. 960. is quoted in Mitchell v. Bank of §^ IGO, 161 EQUITY JUEISPRUDENCE. 196 tate of married women being only a species of trust prop- erty held upon express trust, either passive or active, it is of course embraced within the legislation of various states abolishing or restricting and regulating such trusts. § 160. This jurisdiction of equity, so far as it is con- cerned with the contracts of married women, and their other dealings with their separate property, has been greatly enlarged by the modem legislation in many of the states. These statutes, it is true, do not create any equi- table estate; their effect is to vest a purely legal title in the wife, and to free such title from the interests and claims and rights which the common law gave to the hus- band. But while the legislation thus acts upon her title, it does not, in general, remove the common-law disability of entering into contracts, or clothe the wife with a gen- eral capacity of making contracts which are binding at law, and enforceable against them by legal actions. The matter of married women's contracts is therefore left ex- clusively to courts of equity, and is governed by equitable doctrines. The jurisdiction of equity in the enforcement of married women's liabilities against their separate prop- erty has thus been enlarged, since it has been extended in these states to all the property which a wife may hold by a legal title, and is not confined to such equitable estate as is held for her separate use.i § 161. Equitable Estates Arising from the Doctrine of Conversion. — The doctrine of "conversion" is a particular application of the principle that equity regards as done what ought to be done. The doctrine itself was thus stated by an eminent English equity judge in the leading case V. Ashton, 1 Mylne & C. 105, 112 ; La Touche v. La Touche, 3 Hurl. & C. 576 ; Heatley v. Thomas, 15 Ves. 596 ; McHenry v. Davies, L. R. 10 Eq. 88 ; Murray v. Barlee, 3 Mylne & K. 209 ; Owen v. Homan, 4 H. L. Cas. 997; Johnson v. Gallagher, 3 De Gex, F. & J. 494, 521. § 160, 1 See post, part iii., chapter on Married Women's Separate Property, where an abstract of the legislation in the various states is given. 197 THE EXCLUSIVE JURISDICTION. § 162 upon the subject: ''Nothing is better settled than this principle, that money directed to be employed in the pur- chase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted; and this, in whatever manner the direction is given, whether by will, by way of contract, marriage articles, settlement, or other- wise ; and whether the money is actually deposited or only covenanted to be paid, whether the land is actually con- veyed or only agreed to be conveyed, the owner of the fund, or the contracting parties, may make land money, or money land. The cases establish this rule universally." ^ As this doctrine of conversion is wholly a creation of the equitable jurisprudence, the estates or interests which re- sult from it are entirely equitable in their nature, and equity has an exclusive jurisdiction to maintain and pro- tect such interests, whether the remedy which it gives in any particular case consists in establishing a person's right to a specific piece of land, or merely in granting a recovery of money .^ § 162. Mortgages.^ — At the common law a mortgage of land is a conditional conveyance of the legal title, subject to be defeated by the mortgagor's performing the condi- tion, paying the debt on the very day stipulated. If the § 161, 1 Fletcher v. Ashburner, 1 Brown Ch. 497, per Sir Thomas Sewell, M. R. ; Lechmere v. Carlisle, 3 P. Wms. 223 ; Wheldale v. Par- tridge, 5 Ves. 396, 8 Ves. 227; Harcourt v. Seymour, 2 Sim. N. S. 12, 45; In re Pedder, 5 De Gex, M. & G. 890; Craig v. Leslie, 3 Wheat. 564; Peter V. Beverly, 10 Pet. 534, 563; Lorillard v. Coster, 5 Paige, 173, 218; Gott V. Cook, 7 Paige, 523, 534; Kane v. Gott, 24 Wend. 641, 659, 660, 35 Am. Dec. 641; Pratt v. Taliaferro, 3 Leigh, 419, 421, 427; Siter v. Mc- Clanachan, 2 Gratt. 280; Smith v. McCrary, 3 Ired. Eq. 204, 207; Samuel V. Samuel's Adm'rs, 4 B. Mon. 245, 253; Allison v. Wilson's Ex'rs, 13 Serg. & R. 330, 332. §161, (a) The text is cited in §162, (a) Sections 162, 163, aro Greenland v. Waddell, 116 N. Y. cited in Savings & Loan See. v. 239, 15 Am. St. Rep. 400, 22 N. E. Davidson, 97 Fed. 696, 713, 38 367. C. C. A. 365. § 162 EQUITY JURISPRUDENCE. 198 condition for any reason was not performed on that day, the conveyance ipso facto became absolute, the mort- gagee's estate became a perfect legal title, in fee, for life, or for years, according to the terms of the deed, and all the mortgagor's interest under the instrument was com- pletely gone. In other words, the law applied to a mort- gage the same strict rules which had been establishe'd with regard to every conditional conveyance. Side by side with this harsh system of the law, the court of chancery developed another theory, which may justly be regarded as the most magnificent triumph of equity jurisprudence over the injustice of the common law. The source of this theory was found in the principle that equity can and will relieve against legal penalties and forfeitures, whenever the person who seeks to enforce them may be fairly com- pensated by an award of money. As early as the reign of James I. the court of chancery had begun to relieve the mortgagor; and in the reign of Charles I. his right to re- deem, after a failure to perform the condition, had become fully recognized as a part of the equity jurisprudence.^ This equitable right 'of the mortgagor was termed his "equity of redemption"; that is, his "right in equity to redeem." At first this equity of redemption was re- garded as a mere right or thing in action, and at the close of the reign of Charles II. it was said to be a mere right to recover the land in equity after a failure to perform the condition, and not to be an estate in the land.^ This nar- row view, however, was soon abandoned; the equitable theory became more consistent and complete, until in 1737 Lord Hardwicke laid down the doctrine as already estab- lished, and which has since been regarded as the very cen- tral notion of the equitable theory, that an equity of re- demption is (in equity) an estate in the land, which may be devised, granted, or entailed with remainder; that it § 162, 1 Emanuel College v. Evans, 1 Rep. Chan. 18; 1 Jones on Mort- gages, §§6, 7; Coote on Mortgages, 21. § 162, 2 Roscanick v. Barton, 1 Cas. Chan. 217. 199 THE EXCLUSIVE JURISDICTION. § 163 cannot be considered as a mere right only, but such an estate whereof there may be a seisin ; and that the person therefore entitled to the equity of redemption is consid- ered as the owner of the land, and a mortgage in fee is considered as personal assets. 3 It should be carefully ob- served that by this theory the mortgagor's estate is wholly an equitable one; neither in equity nor at law is he regarded as retaining the legal estate. Being purely a creation of equity, it fell, of course, under the exclusive jurisdiction of chancery, and was maintained and pro- tected by means of the remedy obtained in a suit for re- demption. This double mode of dealing with mortgages, the legal, the only one recognized and administered by the courts of law, and the equitable, prevailing alone in the court of chancery, has continued to exist in England until the present day. § 163. The English system has not been adopted to its full extent in any of the American states. Two entirely different methods of viewing the mortgage have become established in the states of this country, and the states themselves must be separated into two great classes with respect to their adoption of one or the other of these methods : 1. In nearly half of the states and territories the conflict between the legal and the equitable -conceptions is entirely removed. The legal theory of mortgages has been abandoned, and the equity theory has been left in full force, furnishing a single and uniform collection of rules, recognized and administered, so far as necessary, alike by courts of law and of equity. The mortgage is not a con- veyance; it confers no estate in the land upon the mort- gagee. It simpy creates a lien on the land as security for the debt due. The mortgagor's estate, instead of being equitable, an equity of redemption, is, for all purposes, and between all parties, the legal estate, but encumbered by the lien created by the mortgage. This simple concep- § 162, 3 Casborne v. Searfe, 1 Atk. 603. § 1G4 EQUITY JURISPEXJDENCE. 200 tion is carried out with all its consequences, not only as between the immediate parties, but as between all persons who have or acquire any interest in or claim upon the mortgage itself or the land which is subject to the mort- gage.i 2. The second method, which prevails in the resi- due of the states and territories, may be briefly described as follows: Between the immediate parties — the mort- gagor and mortgagee and persons holding under them — the legal conception is acknowledged, and the legal rights and duties flowing from the mortgage as a conveyance of the legal estate are recognized and enforced by the courts of law. But as between the mortgagor and his repre- sentatives and all other persons not holding under or through the mortgagee, the legal conception has been en- tirely abandoned, and the equity view has been adopted by all courts, of law as well as of equity. Finally, the equity theory exists, is in fact the only one administered by courts of equitable jurisdiction, and is applied by them to all par- ties in the same manner and to the same extent as by the court of chancery in England. ^ § 164. Mortgage of Personal Property. — While a mort- gage of personal property is, at the common law, a condi- tional sale, which becomes absolute, passing a perfect legal ownership on the mortgagor's failure to perform the condi- tion, yet the doctrine is well settled that an equity of re- demption exists; and the equitable jurisdiction is un- doubted to relieve the mortgagor by a suit to redeem, even though the mortgagee has taken possession of the chattels, § 163, 1 This method has been adopted in the following states and terri- tories: California, Colorado, Dakota, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Michigan, Minnesota, Nebraska, Nevada, New York, Oregon, South Carolina, Texas, Utah, and Wisconsin. § 163, 2 The second method has been adopted in the following states : Alabama, Arkansas, Connecticut, Delaware, Illinois, Kentucky, Maine, Maryland, Massachusetts, Mississippi, Missouri, New Hampshire, New Jersey, North Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, and West Virginia. 201 THE EXCLUSIVE JURISDICTION. § 164 at any time before the mortgagor's right has been fore- closed by a piiblic sale of the mortgaged property.* Even after such a sale, if there has been any element of bad faith or inequitable conduct on the part of the mortgagee, the mortgagor may still sometimes maintain a suit for an ac- counting.! The jurisdiction also extends to the mort- gagee's interest, which may be protected and enforced by a suit brought to foreclose the mortgagor's right of re- demption, and to sell the mortgaged property, similar to the suit so common in the United States for the foreclos- ure of a mortgage of land.^^ A like jurisdiction exists over pledges of chattels or of things in action ; the pledgee may enforce his security by a suit for a foreclosure and sale. 3 c Under special circumstances the pledgor may maintain an equitable action for a redemption.'* In some of the states the common-law view of the chattel mortgage as a conditional sale has been totally abandoned ; the mort- gage itself has been assimilated to the mortgage of land as only creating a lien, — a mere hypothecation, — the legal §164, iHart v. Ten Eyck, 2 Jolms. Ch. 100, 101; Stoddard v. Deni- son, 7 Abb. Pr. N. S. 309; Flanders v. Chamberlain, 24 Mich. 305; Hey- land V. Badger, 35 Cal. 404. § 164, 2 Hart v. Ten Eyck, 2 Johns. Ch. 100 ; Lansing v. Goelet, 9 Cow. 372, per Jones, C. ; Charter v. Stevens, 3 Denio, 33, 45 Am. Dec, 444; Huntington v. Mather, 2 Barb. 538 ; Mattison v. Baucus, 1 N. Y. 296. § 164, 3 Ex parte Mountford, 14 Ves. 606 ; Freeman v. Freeman, 17 N. J. Eq. 44; Dnpuy v. Gibson, 36 111. 197; Donohue v. Gamble, 38 Cal. 340; Civ. Code of Cal., § 3011. § 164, 4 Jones v. Smith, 2 Ves. 372; Bartlett v. Johnson, 9 Allen, 530; Hasbrouck v. Vandervoort, 4 Sand. 74. § 164, (a) The text is cited to Cleghorn v. Minnesota T. I. & T. Co., this effect in Lang v. Thacher, 48 57 Minn. 341, 47 Am. St. Rep. 615, App. Div. (N. Y.) 313, 62 N. Y. Supp. 59 N. W. 320. This section of the 958. text was cited in Knapp, Stout & §164, (b) This paragraph of the Co. v. McCaffrey, 178 111. 107, 69 text is cited in M'Cormick v. Hart- Am. St. Rep. 290, 52 N. E. 898. and ley, 107 Ind. 248, 6 N. E. 357 (juris- the principle applied, by analogy, diction to protect the mortgagee's to the enforcement in equity of a interest before the debt is due). bailee's lien. §164, (c) Cited to this effect in § § 1G5, 166 EQUITY JURISPEUDENCB. 202 ownership with all its incidents, including the right of pos- session, being left in the mortgagor until the lien is en- forced and the mortgagor's interest extinguished, either by means of an equitable suit or by a public sale.^ § 165. Equitable Liens, analogous to mortgages, con- sidered from the purely equitable point of view, are the class of interest embraced under the denomination of ''equitable liens." An equitable lien is not an estate or property in the thing itself, nor a right to recover the thing, — that is, a right which may be the basis of a pos- sessory action; it is neither a jiis ad rem nor a ju^ in re.^ It is simply a right of a special nature over the thing, which constitutes a charge or encumbrance upon the thing, so that the very thing itself may be proceeded against in an equitable action, and either sold or sequestered under a judicial decree, and its proceeds in the one case, or its rents and profits in the other, applied upon the demand of the party in whose favor the lien exists. It is the very essence of this conception, that while the lien continues, the possession of the thing remains with the debtor or per- son who holds the proprietary interest subject to the encumbrance.2 a § 166. The doctrine of equitable liens is one of great importance, and of wide application in administering the remedies peculiar to equity jurisprudence, and a brief ex- planation of the foundation and reasons of the jurisdiction is essential to a full understanding of the subject. It is § 164, 5 As, for example, in California: Civ. Code, §§ 2920, 2923, 2927, 2931, 2936, 2967-2970, 3000-3002. § 165, 1 See Peek v. Jenness, 7 How. 620, per Grier, J. § 165, 2 Brace v. Duchess of Marlborough, 2 P. Wms. 491 ; Ex parte Knott, 11 Ves. 617. § 165, (a) This paragraph is cited Barlow Drug Co., 194 Ala. 507, 69 in American Can Co. v. Erie Pre- South. 931 (foreclosure of seller's serving Co. (C. C. N. Y.), 171 Fed. lien where contract provides no 548. Sections 165-167 are cited in method of enforcing) ; Boyett v. Averyt Drug Co. v. Ely-Robertson- Hahn (Ala.), 73 South. 79. 203 THE EXCLUSIVE JURISDICTION. § 16G sometimes, although unnecessarily and even incorrectly in my opinion, spoken of as a branch of implied trusts; but it is more accurate to describe these liens as analogous to trusts ; for although they have some similar features, they are unlike in their essential elements. The common-law remedies upon all contracts, except those which transfer a legal estate or property, such as conveyances of land and sales or bailments of chattels, are always mere recoveries of money; the judgments are wholly personal, in ancient times were enforced against the person of the debtor, by his imprisonment until he voluntarily paid the amount, and in modern times, against the property generally of the judgment debtor, by means of an execution. This species of remedy is seldom granted by equity, and is opposed to its general theory. The remedies of equity are as a class specific. Although it is commonly said of them that they are not m rem, because they do not operate by the in- herent force of the decree in an equitable suit to change or to transfer the title or estate in controversy, yet these remedies are, as a general rule, directed against some spe- cific thing; they give or enforce a right to or over some particular identified thing, land, or personal property, or a fund, rather than a right to recover a sum of money generally out of the defendant's assets. Eemedies in equity, as well as at law, require some primary right or in- terest of the plaintiff, which shall be maintained, enforced, or redressed thereby. When equity has jurisdiction to enforce rights and obligations growing out of an executory contract, this equitable theory of remedies cannot be car- ried out, unless the notion is admitted that the contract creates some right or interest in or over specific property, which the decree of the court can lay hold of, and by means of which the equitable relief can be made efficient. The doctrine of ''equitable liens" supplies this necessary ele- ment, and it was introduced for the sole purpose of fur- nishing a ground for the specific remedies which equity confers, operating upon particular identified property, in- § 167 EQUITY JURISPRUDENCE. 204 stead of tlie general pecuniary recoveries granted by courts of law. It follows, therefore, that in a large class of executory contracts, express or implied, which the law regards as creating no property right nor interest analo- gous to property, but only a mere personal right and obligation, equity recognizes, in addition to the ohligation, a peculiar right over the thing with which the contract deals, which it calls a ''lien," and which, though not prop- erty, is analogous to property, and by means of which the plaintiff is enabled to follow the identical thing, and to enforce the defendant's obligation by a remedy which operates directly upon that thing.^ § 167. These equitable liens may be created by express executory contracts relating to specific property then exist- ing,i or property to be afterward acquired ;2 and some- times by implied contracts, upon the maxim that he who seeks the aid of equity in enforcing some claim must him- self do equity.3 The following are some of the important kinds of equitable liens which are recognized as falling under this branch of the jurisdiction : Those resulting from § 167, 1 Ex parte Wills, 1 Ves. 162, 2 Cox, 233 ; Card v. Jaffray, 2 Sehoales & L. 379; In re Howe, 1 Paige, 125, 19 Am. Dec. 395; Chase V. Peck, 21 N. Y. 581; Daggett v. Rankin, 31 Cal. 321, 326; Love v. Sierra Nevada Co., 32 Cal. 639, 652, 653, 91 Am. Dec. 602; Pinch v. Anthony, 8 Allen, 536; Adams v. Johnson, 41 Miss. 258; Morrow v. Turney, 35 Ala. 131. § 167, 2 Holroyd v. Marshall, 10 H. L. Cas. 191 ; Wellesley v. Wellesley, 4 Mylne & C. 561, 579, per Lord Cottenham; Metcalfe v. Archb. of York, 6 Sim. 224, 1 Mylne & C. 547, 556; Lyde v. Minn, 4 Sim. 505, 1 Mylne & K. 683; Otis V. Sill, 8 Barb. 102. § 167, 3 Lake v. Gibson, 1 Abr. Cas. Eq. 290, pi. 3 ; Lake v. Craddock, 3 P. Wms. 158, 1 Lead. Cas. Eq. 177, 179; Gladstone v. Birley, 2 Mer. 403; Bright v. Boyd, 1 Story, 478, 2 Story, 605; Miner v. Beekman, 50 N. Y. 337; Smith v. Drake, 23 N. J. Eq. 302; McLaughlin v. Barnum, 31 Md. 425 ; Sale v. Crutchfield, 8 Bush, 636. • § 166, (a) The text is quoted in Bisby v. Quinby, 92 Kan. 86, 140 Pac. 635. 205 THE EXCLUSIVE JURISDICTION. § 167 charges on property by will or by deed; '* the grantor's lieu on land conveyed for the unpaid price ;^ the vendee's lien for the money paid in a contract for the purchase of land; 6^ the vendor's lien for the purchase price in the same contract;"^ the grantor's lien for unpaid price created by express reservation in a deed of conveyance;^ the lien in favor of a lender, created by a deposit of title deeds ;^ various statutory liens.^ In addition to the liens above mentioned, which belong to the general equitable jurispru- dence, the legislation of many states has created or allowed other liens, which often come within the equity jurisdiction, § 167, 4 King V. Denison, 1 Ves. & B. 272, 276 ; Hill v. Bishop of Lon- don, 1 Atk. 620; Craig v. Leslie, 3 Wheat. 582; Gardner v. Gardner, 3 Mason, 178. § 167, 5 Mackreth v. Symmons, 15 Ves. 329, 1 Lead. Cas. Eq. 289 ; Blackburn v. Gregson, 1 Brown Ch. 420; Rose v. Watson, 10 H. L. Cas. 672 ; Smith v, Evans, 28 Beav. 59. This lien is established in a large num- ber of the states, but not in all. § 167, 6 Cator v. Earl of Pembroke, 1 Brown Ch. 301; Rose v. Watson, 10 H. L. Cas. 672; Wythes v. Lee, 3 Drew. 396; Lane v. Ludlow, 6 Paige, 316, note; Chase v. Peck, 21 N. Y. 585; Wickman v. Robinson, 14 Wis. 494, 80 Am. Dec. 789; Stewart v. Wood, 63 Mo. 252; Willis v. Searcy, 49 Ala. 222. §167, 7 Smith v. Hibbard, Dick. 730; Smith v. Evans, 28 Beav. 59; Haughwout V. Murphy, 22 N. J. Eq. 531; Hall v. Jones, 21 Md. 439; Yancy v. Mauck, 15 Gratt. 300; Hill v. Grigsby, 32 Cal. 55; Smith v. Row- land, 13 Kan. 245. § 167, 8 This species of lien, peculiar to the United States, is fully established in several of the states; Heist v. Baker, 49 Pa. St. 9; Carpenter V. Mitchell, 54 111. 126; Markoe v. Andras, 67 111. 34; Davis v. Hamilton, 50 Miss. 213; Stratton v. Gold, 40 Miss. 781; White v. Downs, 40 Tex. 226; King v. Young Men's Ass'n, 1 Woods, 386. § 167, 9 This lien is very common in England, and has been recognized in some of the states: Russell v. Russell, 1 Brown Ch. 269; Ex parte Hooper, 1 Mer. 7; Parker v. Housefield, 2 Mylne & K. 419; Whitbread v. Jordan, 1 Younge & C. 303. § 167, (a) The text is cited in & Lancashire Fire Ins. Co., 138 Cal. Stults v. Brown, 112 Ind. 370, 2 Am. 257, 71 Pac. 334 (action to enforce St. Rep. 190, 14 N. E. 230. a judgment lien against property of § 167, (b) The text is cited in decedent), Hibernia Sav. & L. See. v. London § 168 EQUITY JURISPRUDENCE. 206 in respect, at least, to their means of enforcement. The so-called ** mechanics' liens" may be taken as the type and illustration of this class.® § 168. Equitable Estate or Interest Arising from an As- signment of Things in Action, Possibilities, Contingencies, or Expectancies, and from an Equitable Assignment of a Fund. — By the ancient common law, things in action, pos- sibilities, expectancies, and the like, were not assignable; an assignee thereof acquired no right which was recog- nized by courts of law. Equity, however, has always held that the assignment of a thing in action for a valuable con- sideration should be enforced at the suit of the assignee; and has also given effect to assignments of every kind of future and contingent interests and possibilities in real and personal property, when made upon a valuable con- sideration. ^ ^ As soon as the assigned expectancy or pos- sibility has fallen into possession, the assignment will be enforced.2 It followed, therefore, that the assignee of a thing in action acquired at once an equitable ownership therein, as far as it is possible to predicate property or ownership of such a species of right; while the assignee of an expectancy, possibility, or contingency acquired at once a present equitable right over the future proceeds of the expectancy, possibility, or contingency, which was of § 168, 1 Warmstrey v. Lady Tanfield, 1 Ch. Rep. 16; Wright v. Wright, 1 Ves. Sen. 411; Hobson v. Trevor, 2 P. Wms. 191; Bennett v. Cooper, 9 Beav. 252; Lindsay v. Gibbs, 22 Beav. 522; Spragg v. Binkes, 5 Ves. 588 ; Stolfes v. Holden, 1 Keen, 152, 153 ; Jewson v. Moulson, 2 Atk. 421. § 168, 2 Holroyd v. Marshall, 10 H. L. Cas. 191. § 167, (c) The text is cited in ing that as the lien was statutory, Gilchrist v. Helena Hot Springs & and not equitable, the "clean hands" Smelter R. Co., 58 Fed. 708, 710, maxim did not apply. holding that equity has jurisdiction § 168, (a) The text is cited to to enforce statutory liens when the this effect in In re Garcelon, 104 Cal. statute itself provides no method of 570, 32 L. R. A. 595, 43 Am. St. Rep. enforcement. Sections 165-167 are 134, 38 Pae. 414; Hale v. Hollon, 14 cited in Schmulbach v. Caldwell. Tex. Civ. App. 96, 35 S. W. 843, 36 196 Fed. 16, 115 C. C. A. 650, hold- S. W. 288. 207 THE EXCLUSIVE JUEISDICTION. § 168 such a certain and fixed nature that it was sure to ripen into an ordinary equitable property right over those pro- ceeds, as soon as they came into existence by a trans- formation of the possibility or contingency into an inter- est in possession. There was an equitable ownership or property in abeyance, so to speak, which finally changed into an absolute property upon the happening of the future event. Equity permitted the creation and transfer of such an ownership.^ At an early day, this species of equitable ownership arising from assignments prohibited by the common law was very important, and was the occa- sion of an extensive branch of the equitable jurisdiction. This special jurisdiction has, however, been greatly cur- tailed. Modern statutes, both in England and in the American states, permit, with certain well-defined excep- tions, things in action, possibilities, expectancies, and con- tingencies to be assigned, and the assignee to sue there- upon in his own name. As far as this legislation has gone, it has, in effect, turned the equitable right or ownership of the assignee into a legal one, and has thus removed the very foundation of the equitable jurisdiction over the subject-matter. The jurisdiction is therefore abrogated, except so far as it is preserved by the operation of the general principle, that where the jurisdiction of equity has been established over any given subject, it is not abolished by subsequent statutes conferring jurisdiction over the same subject upon the courts of law. Whatever may be the effect of these statutes in abridging, or rather in re- moving occasion for, the jurisdiction of equity, it is plain that the jurisdiction must still exist in the cases where a thing in action or demand purely equitable in its nature is assigned, and where the assignment itself is equitable, — that is, does not operate as an assignment at law, — and where any species of possibility or expectancy not within the scope of the statutes is transferred. ^ § 168, (b) The text is quoted in § 168, (c) The text is quoted in Stott V. Praney, 20 Or. 410, 23 Am. Stott v. Franey, 20 Or. 410, 23 Am. St, Rep. 132, 26 Pac. 271. St. Rep. 132, 26 Pae. 271. § 169 EQUITY JURISPRUDENCE. 208 § 169. Among these cases which are untouched by the legislation, and over which the exclusive jurisdiction of equity still continues unabridged, is the equitable assign- ment of a specific fund which is in the hands of a third person, an assignment which does not operate at law, and therefore creates no legal rights of property in the as- signee. If A has a specific fund in the hands of B, or in other words, if B is a depositary or otherwise holds a specific sum of money which he is bound to pay to A, and if A agrees with C that the money shall be paid to C, or assigns it to C, or gives to C an order upon B for it, the agreement, assignment, or order creates an equitable ownership of the fund in the assignee C, so that he can re- cover it by a suit in equity, and it is not necessary that B should consent or promise to hold it for or pay it to such assignee. 1 It is not necessary that the entire debt or fund should be thus assigned; the same doctrine applies to the assignment of a definite portion of it.2» § 169, 1 Rodick v. Gandell, 1 De Gex, M. & G. 763; Ex parte Imbert, 1 De Gex & J. 152 ; Jones v. Farrell, 1 De Gex & J. 208 ; Gurnell v. Gard- ner, 9 Jur., N. S., 1220; Ex parte South, 3 Swanst. 393; Burn v. Car- valho, 4 Mylne & C. 702; Lett v. Morris, 4 Sim. 607; Watson v. Duke of Wellington, 1 Russ. & M. 605; Yeates v. Groves, 1 Ves. 281; Lepard v. Vernon, 2 Ves. & B. 51; Ex parte Alderson, 1 Madd. 53; Collyer v. Fal- lon, 1 Turn. & R. 470, 475; Adams v. Claxon, 6 Ves. 230; Row v. Dawson, 1 Ves. Sen. 331 ; Freddy v. Rose, 3 Mer. 86, 102 ; Ex parte Carruthers, 3 De Gex & S. 570; Malcolm v. Scott, 3 Hare, 39; Mandeville v. Welch, 5 Wheat. 277, 286; Tiernan v. Jackson, 5 Pet. 598; Gibson v. Finley, 4 Md. Ch. 75; Wheatley v. Strobe, 12 Cal. 92, 98, 73 Am. Dec. 522; Walker V. Mauro, 18 Mo. 564; Shaver v. Western Union Tel. Co., 57 N. Y. 459, 464. § 169, 2 Watson v. Duke of Welling-ton, 1 Russ. & M. 602, 605, per Sir John Leach; Lett v. Morris, 4 Sim. 607; Smith v. Everett, 4 Brown Ch. 64; Morton v. Naylor, 1 Hill, 583; Grain v. Aldrieh, 38 Cal. 514, 99 Am. Dec. 423. §169, (a) The text is cited and 610; Rivers v. A. & C. Wright Co., followed in The Elmbank, 72 Fed. 117 Ga. 81, 43 S. E. 499. 209 THE EXCLUSIVE JURISDICTION. § 170 § 170. Exclusively Equitable Remedies.^ — Having thus explained the equitable primarj^ rights, estates, interests, and charges in and upon property over which the exclusive jurisdiction of equity extends, I now proceed to enumer- ate the remedies which are wholly equitable, administered by courts of equity alone, and which therefore constitute the other department of the exclusive jurisdiction. There are certain general qualities belonging to all these rem- edies, which should be clearly and correctly understood; otherwise our notions of the remedial functions of equity will be partial, confused, and even erroneous. 1. These exclusive remedies may be granted in order to protect, maintain, or enforce primary rights, estates, or interests which are legal as well as those which are equitable; they are not administered in behalf of equitable substantive rights alone. As illustrations, an injunction is often given to prevent the invasion of a legal ownership or interest, a decree quieting title is often rendered to establish an existing legal estate, and the like.^ And in many in- stances where the existing primary right, estate, or inter- est of the complainant is equitable, the very object and effect of the remedy is to clothe him with the correspond- ing legal right, estate, or interest; as, for example, when the beneficiary under a constructive trust, or the vendee under a contract for the sale of land, obtains a decree directing a conveyance of the legal title. 2. Although it was said in the earliest days of the jurisdiction of chan- cery, and has been constantly repeated by writers and judges to the present time, that equitable remedies act wholly on the person, in personam, and not upon property, in rem, the exact meaning and limits of this rule must be accurately understood, or else it will be very misleading, and will entirely misrepresent the theory of the equity remedial system. It has no significance beyond the fact § 170, (a) Sections 170-172 are §170, (b) The text is quoted in cited in McCracken v. McBee, 96 Curtiee v. Dixon, 72 N. H. 393, &2 Ark. 251, 131 S. W. 450. Atl. 492. 1—14 § 170 EQUITY JURISPRUDENCE. 210 that, according to the practice adopted by the court of chancery from prudential motives, the decrees of the court did not, so to speak, execute themselves by divesting the defendant of estates or interests, and vesting the same in the plaintiff; defendants were ordered to do specified acts, such as the execution of conveyances, the delivery up and cancellation of instruments, and the like, which would, when done, establish, perfect, and secure the rights ad- judged to be held by the plaintiffs; the decree that a con- veyance of land should be made by the defendant to the plaintiff did not of itself operate as a title, did not of itself transfer the estate to the plaintiff; nor was an officer of the court authorized to execute the conveyance ; the defend- ant himself was ordered to do the act, and he alone could perform it; his refusal simply brought on him the punish- ment of fine and imprisonment until he consented to obey.*' This ancient quality in the operation of equitable rem- edies has been greatly modified by various statutes in the United States, which, in some instances, provide that a de- cree establishing an estate, interest or right of property in the plaintiff shall execute itself, shall be of itself a muni- ment of title, by divesting the defendant of the interest and vesting the same in the plaintiff, without any convey- ance or other instrument of transfer. The decree alone, being on record, operates as a sufficient security of the plaintiff's rights as adjudged. In other instances, an offi- cer of the court, commissioner, master, or referee is au- thorized to carry out the provisions of the decree by executing the necessary instruments, which are thereupon the plaintiff's muniments of title, with the same effect as though they had been executed by the defendant himself. Finally, in many instances, the decree must, from the nature of the remedy, — e. g., an injunction, — act directly against the defendant personally, and order him to do or to refrain from certain acts. The maxim referred to has § 170, (c) The text is cited in 53, 138 N. W. 94; Collins v. Bradley McMillan v. Barber Asphalt Pav- Co., 227 Fed. 199. ing Co., 151 Wis. 48, Ami. Cas. 1914B, 211 THE EXCLUSIVE JURISDICTION. § 170 therefore a very limited application. When we turn from this mere external manner in which equitable remedies were enforced according to the original chancery procedure to the essential, and so to speak internal, nature and quali- ties of the remedies themselves, instead of their being merely personal, it is one of the distinctive and central principles of the equity remedial system that it deals with property rights, — estates, interests, liens, — rather than with the mere personal rights and obligations of the liti- gant parties. This tendency of equity to base its reme- dies upon the rights of property, in their various grades, from complete estates to liens or charges, is exhibited in the clearest manner in all its suits brought to enforce the rights and duties growing out of contracts. Although the contract is executory, even though it stipulates only with respect to things not yet in existence, — things to be ac- quired in future, — the remedial right is worked out b}" con- ceiving of a present ownership, interest, lien, or charge, as arising from the executory provisions, or a present pos- sibility which will ripen into such an interest, and by establishing this proprietary right, protecting and en- forcing it. The decree, with a few exceptional cases, passes over the personal rights of the plaintiff, and the personal obligations of the defendant, deals with rights or interests in property, and shapes its relief by conferring rights, or imposing duties growing out of or connected with some grade of property. Even when the executory contract creates what at law would be a debt, and when the recovery at law would be a general pecuniary judg- ment, the equitable remedy views this debt as an existing fund, and awards its relief in the form of an ownership of or lien upon that fund. A general pecuniary judgment to be recovered from the debtor's assets at large — as an award of damages — ^is only granted by a court of equity under very exceptional circumstances.^ 3. Another qual- § 170, 1 The same conception is shown in the jurisdiction which equity exercises over the persons of those who are non sui juris, such as infants, § 170 EQUITY JURISPRUDENCE. 212 ity of the distinctively equitable remedies, connected with and perhaps growing out of the one last mentioned, is their specific character, both with respect to substance and form. Except in actions to recover possession of land or of chat- tels ("action of right," "ejectment," or "replevin"), the legal remedies by action are all general recoveries of speci- fied sums of money, which may be collected by execution out of any property of the debtor not exempted. The equitable remedies, with a few exceptions, are specific; deal with specific things, land, chattels, choses in actions, funds; establish specific rights, estates, interests, liens, and charges in or over these things; and direct specific acts to be done or omitted with respect to these things, for the purpose of enforcing the rights and duties thus de- clared. Even when the controversy is concerning pecuni- ary claims and obligations, and the final relief is wholly pecuniary, the equitable remedies are administered by re- garding the subject-matter as a specific fund, and by ad- judging such fund to its single owner, or by apportioning it among the several claimants. It is the distinctive fea- ture of the system, which gives it a superior efficacy over the legal methods, that it ascertains a rightful claimant's interest in or over a specific thing, land, chattels, choses in action, debts, and even money in the form of a fund, and follows it through the hands of successive possessors as long as it can be identified. The two qualities which I have thus described, that equitable remedies deal with property rights rather than with personal rights and obli- gations, and that they are specific in their nature, are the peculiar and important features of the system, and give it the power of expansion and of application to an unlimited variety of circumstances, which enables equity to keep lunatics, etc. Although the jurisdiction, when existing, extends over the persons, the fact upon which it rests, and which is the necessary* occasion for its exercise, is the existence of property belonging to the person. An infant, for example, cannot be made a ward of the court merely because he is an infant, but because he is an infant possessing property which the court can administer. 213 THE EXCLUSIVE JURISDICTION". § 171 abreast with the progress and changing wants of society. 4. Another quality of equitable remedies is their unlim- ited variety of form. It is absolutely impossible to enu- merate all the special kinds of relief which may be granted, or to place any bounds to the power of the courts in shap- ing the relief in accordance with the circumstances of par- ticular cases. As the nature and incidents of proprietary rights and interests, and of the circumstances attending them, and of the relations arising from them, are prac- tically unlimited, so are the kinds and forms of specific relief applicable to these circumstances and relations.*^ The ordinary remedies, however, which are administered by equity, those which are appropriate to the circum- stances and relations most frequently arising, are well as- certained and clearly defined, both as to their form and nature. Certain species of these belong to tbe exclusive jurisdiction, and the doctrines and rules which regulate their administration constitute a large portion of the equity jurisdiction. I shall complete my survey of the exclusive jurisdiction by enumerating these kindp of reme- dies which are commonly administered, and which are sus- ceptible of a definite classification and arrangement. They may be grouped according to their nature and ob- jects in the following classes. § 171. 1. The first class embraces those remedies which are wholly ancillary or provisional; which do not either directly or indirectly affect the nature of any primary right, but are simply means and instruments by which primary rights may be more efficiently preserved, pro- tected, and enforced in judicial proceedings. This class § 170, (d) Unlimited Variety of N. E. 191. This paragraph is cited Eciuitable Remedies. — • The text is in Hoffman Motor Trust Co. v. quoted in Sharon v. Tucker, 144 Erickson, 124 Minn. 279, 144 N. W. U. S. 542, 12 Sup. Ct. 720, by Field, 952 (holding that a plaintiff is en- J.; quoted, also, in Eector, etc., of titled to such relief as the facts St. Stephen's Church v. Rector, etc. proved require, regardless of the of Church of Transfiguration, 201 prayer for relief). N. Y. 1, Ann. Cas. 1912A, 760, 94 § 171 EQUITY JURISPRUDENCE. 214 includes tlie ordinary preventive injunction, receivers, and interpleader.^ 2. The second class embraces those reme- dies which operate indirectly to establish or protect pri- mary rights, either legal or equitable. They do not ex- pressly nor directly declare, establish, and enforce the ultimate right, estate, or interest of the complaining party; but their object is to perfect and complete the means by which such right, estate, or interest is evidenced or secured, — the title, — or to remove obstacles which hinder the enjoyment of such right.^ They are therefore in their nature not final remedies, but are often granted as prelim- inary to the final relief by which the party 's primary right, estate, or interest is established and enforced. The im- portant remedies contained in this class are re-execution of instruments, reformation of instruments,*^ surrender or discharge of instruments, and cancellation or rescission.^ 3. The third class embraces those remedies by which a primary right of property, estate, or interest is directly declared, established, acquired or enforced; and they often consist in the conveyance by defendant of a legal estate, corresponding to the complainant's equitable title. These remedies deal directly with the plaintiff's right of prop- erty, and grant to him the final relief which he needs, by establishing and enforcing such right. The particular §171, (a) The text is quoted in §171, (c) The text is cited in Smith V. United States (C. C. Or.), Bickley v. Commercial Bank of Co- 142 Fed. 225 (receivers) ; and cited in lumbia, 43 S. C. 528, 21 S. E. 886; Vila V. Grand Island E. L., I. & C. S. Martin v. Hempstead County Levee Co. (Neb.), 97 N. W. 613 (ancillary District No. 1, 98 Ark. 23, 135 S. W. character of the remedy of appoint- 453. This and the preceding para- ing a receiver); Freer v. Davis, 52 graph are cited to the effect that W. Va. 1, 94 Am. St. Rep. 895, 59 equity has exclusive jurisdiction L. R. A. 556, 43 S. E. 164 (ancillary over reformation, in Pickrell & character of the remedy of injunc- Craig Co. v. Castleman Blakemore tion to restrain trespass). Co., 174 Ky, 1, 191 S. W. 680. §171, (b) Quoted in Sharon v. §171, (d) The text is cited in Tucker, 144 U. S. 542, 12 Sup. Ct. Bruner v. Miller, 59 W. Va. 36, 52 720, by Field, J., a suit to establish, S. E. 995 (rescission) ; Watson v. as a matter of record, a title de- Borah, 37 Okl. 357, 132 Pac. 347 pending on prescription. (cancellation). 215 THE EXCLUSIVE JURISDICTION". § 171 remedies properly belonging to this class may assume an almost unlimited variety of forms, since their form de- pends upon anji corresponds to the nature of the primary'- right to be established, and of the subject-matter over which that right extends; it is chiefly in its relation with this class that the peculiarly elastic quality of the equity remedial system is found. The remedies belonging to the class may, for purposes of clearer description, be again subdivided into three principal groups. Some are simply declarative; that is, their main and direct object is to de- clare, confirm, and establish the right, title, interest, or estate of the plaintiff, whether legal or equitable ; they are usually granted in combination with others, and often need other kinds of relief as a preliminary step to making them efficient; as, for example, a preliminary reformation, re- exlecution, or cancellation. « Others are restorative, or those by which the plaintiff is restored to the full enjoy- ment of the right, interest, or estate to which he is entitled, but the use and enjoyment of which has been hindered, interfered with, prevented, or withheld by the wrongdoer. These also are often granted in combination with other kinds of relief, and frequently need some other prelim- inary equitable remedy, such as cancellation or reforma- tion, to remove a legal obstacle to the full enjoyment of the plaintiff's right, and to render them efficient in restoring him to that enjoyment. Others are remedies of specific performance, or those by which the party violating his pri- mary duty is compelled to do the very acts which his duty and the plaintiff's corresponding primary right re- quire from him. The following particular instances are examples of the remedies belonging to this general class: Establishing and quieting title and possession of land ; ^ §171, (e) This paragraph of the §171, (f) The text is cited in text is cited in Bohart v. Chamber- Mason v. Fichner, 120 Minn. ISo, lain, 99 Mo. 622, 13 S. W. 85, decree 139 N. W. 485 (when a suit to de- establishing the existence of a lost termine adverse claims is of equi- instrument; Sharon v. Tucker, 144 table cognizance). U. S. 542, 12 Sup. Ct. 720. § 171 EQUITY JURISPRUDENCE. 216 establishing some general right (''bills of peace") ; estab- lishing wills ;g construing wills and determining the rights under them of devisees and legatees,^ establishing disputed boundaries ; redeeming lands or chattels from mortgages, pledges, and thus establishing the plaintiff's right of prop- erty and possession therein; strict foreclosure of mort- gages; specific performance of contracts and of other similar obligations; performance of duties arising from implied trusts, resulting or constructive, by compelling a conveyance of the legal title; performance of the duties arising from express trusts, by compelling the trustee to fulfill the trust according to its terms ; and numerous other cases of the same nature. 4. A fourth class embraces those remedies which establish and enforce liens and charges on property, rather than rights and interests in property, either by means of a judicial sale of the prop- erty itself which is affected by the lien and a distribution of its proceeds, or by means of a sequestration of the prop- erty, and an appropriation of its rents, profits, and income, until they satisfy the claim secured by the lien.i The im- portant examples are: The foreclosure of mortgages of land or of chattels, and of pledges, by a sale and applica- tion of the proceeds; the similar enforcement of grantors' or vendees' liens on land; the enforcement of mechanics' and other like statutory liens ; J the enforcement of charges created by will and other equitable liens; creditors' suits to enforce the equitable liens of judgment creditors and other §171, (g) This paragraph of the §171, (i) The text is quoted in text was cited in In re Cilley, 58 Knapp, Stout & Co. v. McCaffrey, Fed. 977, 986, where, however, it 178 111. 107, 69 Am. St. Rep. 290. 52 was held that a proceeding to estab- N. E. 898 (enforcing lien of bailee lish a will was not a "suit at com- in equity). mon law or in equity" within the § 171, (j) The text is cited in meaning of the statute authorizing Hibernia Savings & Loan Society v. removal to a federal court on the London & Lancashire Fire Ins. Co., ground of diverse citizenship. 138 Cal. 257, 71 Pac. 334 (jurisdic- §171, (h) The text is cited in tion to enforce judgment lien against Matthews v. Tyree, 53 W. Va. 298, property of decedent). 44 S. E. 526. 217 THE EXCLUSIVE JURISDICTION. § 172 similar liens on the assets of debtors, ^ and the like. 5. A fifth class contains certain special remedies which do not belong to the original jurisdiction of chancery, but are wholly the results of statutory legislation. Among them are suits to set aside wills; suits to establish or to destroy some kinds of official status, as proceedings against cor- porations and their officers, brought by stockholders or creditors or officials on behalf of the state, to dissolve and wind up the corporations, and to remove or institute cor- poration officers, and the like; and suits for divorce abso- lute and limited, and for alimony, in many of the states. 6. The last class comprises proceedings in which jurisdic- /tion is exercised over persons not sui juris, — infants, per- sons non compotes mentis, confirmed drunkards. The foregoing six general classes include all the important species, and most of the particular instances of the reme- dies which belong to the exclusive jurisdiction, those which are administered alone by courts of equity. § 172. "When, under what circumstances, for what pur- poses, to what extent, and with what limitations and re- strictions these remedies, or any one of them, will actually be granted to and against litigant parties, are questions which do not belong to a statement of the equitable juris- diction; they belong alone to the equity jurisprudence, and their answer involves, to a large extent, a discussion of its doctrines and rules. The administration of those purely equitable remedies is the judicial function which marks and fixes one branch of the exclusive jurisdiction; the de- termination of the scope and extent of that jurisdiction only requires a knowledge of what these remedies are, and not of the particular circumstances under which they will be conferred. In a word, all cases in which the purely equitable remedies are granted fall within the exclusive jurisdiction of equity; what those cases are constitutes a § 171, (k) The text is cited in Huff v. Bidwell, 151 Fed. 563, 81 C. C. A. 43 (creditors' suits). § 173 EQUITY JURISPRUDENCE. 218 large portion of the equity jurisprudence, and is ascer- tained only by an application of its principles, doctrines, and rules.* §§ 173, 174. §175. §§ 176-179. §§177,178. §179. §180. §181. SECTION in. THE CONCURRENT JURISDICTION". ANALYSIS. What embraced in the concurrent jurisdiction; inadequacy of legal remedies defined. The remedies given must be legal in their nature. General principle; when no concurrent jurisdiction exists. Examples of such cases. Where a law court has first taken cognizance of a case. General principle; where concurrent jurisdiction does exist. Rule -first. Where equity has jurisdiction for any partial pur- pose, it may retain the cause for all purposes. § 182. Rule second. Where equity originally had jurisdiction, and the law subsequently acquires jurisdiction over the same matter, the equity jurisdiction still continues. § 183. Effect of the reformed procedure upon the equity jurisdiction. §§ 184r-189. Enumeration of the principal matters over which the concurrent jurisdiction ordinarily extends. § 185. Suits for the recovery of lands and of chattels, §§ 186-188. Suits for pecuniary recoveries. § 188. Suits arising from accident, mistake, or fraud. § 189. Other special cases. § 173.a Description and Test. — The Concurrent Juris- diction, as stated in a former section in this chapter, em- braces all those civil cases in which the primary right, es- tate, or interest of the complaining party sought to be maintained, enforced, or redressed is one which is created and is cognizable by the law, and in which the remedy con- § 172, (a) The text is cited in ler, 59 W. Va. 36, 52 S. E. 995. Sec- Brickley v. Commercial Bank of tions 173, 174, cited, to the effect Columbia, 43 S. C. 528, 21 S. E. 886. that the remedy of accounting is em- §173, (a) Section III, §§173-189, braced in the concurrent jurisdiction, cited generally in Illinois Finance in Balfour v. San Joaquin Valley Co. V. Interstate Rural Credit Assn. Bank (C. C. Cal.), 156 Fed. 500. (Del.), 101 Atl. 870; Bruner v. Mil- 219 THE CONCURRENT JURISDICTION. § 173 ferred is also of the same kind as that administered, under the like circumstances, by the courts of law. The primary right, estate, title, or interest which is the foundation of the suit must be legal, or else the case would belong to the exclusive jurisdiction of equity ; and the law must, through its judicial procedure, give some remedy of the same gen- eral nature as that given by equity; but this legal remedy is not, under the circumstances, full, adequate, and com- plete. The actual foundation of this, concurrent branch of the equitable jurisdiction, the essential principle to which every instance of its exercise must finally be referred, is therefore the inadequacy, incompleteness, or insufficiency of the legal remedies which can be granted by courts of law to the litigant parties. This inadequacy or insuffi- ciency inheres, not in the essential nature of the relief itself, but generally in the modes in which the relief is ad- ministered by courts of law, the inflexible and often arbi- trary rules of legal procedure concerning parties to ac- tions, trials, judgments, and the like. Although the exclusive jurisdiction of equity does not rest upon the inadequacy of legal remedies as its foundation, yet, as has already been said, the rules which govern its exercise, the doctrines of equity jurisprudence which guide and limit the court of chancery in its decision of causes falling within the exclusive jurisdiction, do also depend in some measure upon the insufficiency and inadequacy of the remedies granted by the law. This inadequacy of legal remedies, in its relations with the exclusive jurisdiction of equity, almost always exists in the yery nature of the remedies themselves. The equitable remedies are differ- ent from and superior to those conferred by the law, and for this reason a court of equity may interfere and grant them, although the primary right, interest, or estate of the plaintiff is legal in its nature, and he might obtain some remedy for the violation of his right from a court of law. This is not true of the concurrent jurisdiction. The very definition of that jurisdiction assumes that the reme- § 174 EQUITY JURISPRUDENCE. 220 dies administered under a given state of circumstances, by equity and by the law, are substantially the same, — re- coveries of money, or of specific tracts of land, or of spe- cific chattels. The incompleteness or insufficiency of the legal remedy upon which the concurrent equitable juris- diction rests must therefore necessarily exist in the modes of legal procedure, its arbitrary and unbending rules, its want of elasticity and adaptability to circumstances, and all the other incidents of legal methods which often pre- vent them from doing full justice to the litigant parties. § 174.a The cases coming within the concurrent juris- diction may, for purposes of convenience only, and not from any difference of principle, be arranged under two general classes. The distinguishing feature of the first class is the act, event, or fact which is the occasion of the remedial right. It contains all those cases in which the primary right violated, the estate, title, or interest to be protected, is of course legal, and the subject-matter of the suit, and the act, event, or fact which occasions the right to a remedy, may be brought within the cognizance of the law courts, and made the foundation of a legal action, but in respect of which the whole system of legal proce- dure and remedies is so partial and insufficient that com- plete justice can only be done by means of the equity juris- diction. The most important acts, events, or facts which are the occasions of remedial rights, and which thus per- mit or require the interposition of equity in the cases com- posing this class, are fraud, mistake, and accident. The second class contains all the remaining cases in which the primary right to be redressed or protected is legal, and the relief is of the same kind as that given at law, but in which, from the special circumstances of the case itself, or from the inherent defects of the legal procedure, the remedy at law is inadequate, and equity assumes jurisdic- § 174, (a) Cited approval in Stockton v. Anderson, 40 N. J. Eq. 48S, 4 Atl. 642. 221 THE CONCURRENT JURISDICTION". § 175 tion, in order to do comi^lete justice. As mere illustra- tions of this class may be mentioned suits for an aceount- ing,b for contribution, and the like, in which both the legal and the equitable remedy is a recovery of money; suits for partition,^ for admeasurement of dower, and for set- tlement of boundaries, in which the relief in both courts is the obtaining possession of land ; and the suits which may be maintained under peculiar circumstances for the re- covery of specific chattels. § 175. The Remedies Legal.^ — ^In order that a suit may fall under the concurrent jurisdiction of equity, the remedy — that is, the sulistantial relief obtained by the de- cree — must be of the same general nature as that which would be obtained by means of an action at law under like circumstances. All the general kinds of remedy, or final relief, which are possible by means of legal actions are de- fined with absolute certainty and fixedness. Omitting the particular species of relief obtainable through certain writs or special judicial proceedings, such as "man- damus," the writ of "prohibition," '* habeas corpus," the law, through its actions, is confined to three general kinds of remedies, — the obtaining possession of specific tracts of land, the obtaining possession of specific chattels, and the recovery of ascertained sums of money, either debts or damages, by way of compensation. In every case, there- fore, properly belonging to the concurrent jurisdiction of equity, the final and substantial relief granted by the de- cree must be either an award of possession of some piece of land, or a delivery of possession of some specific chattel, including written instruments, such as deeds, which with this respect are regarded as chattels, or a pecuniary re- § 174, (b) Cited in Balfour v. San § 175, (a) Cited with approval in Joaquin Valley Bank (C. C. Cal.), State v. Donegan, 94 Mo. 66, 6 S. W. 156 Fed. 500. 693; Bindseil v. Smith, 61 N. J. Eq. § 174, (c) This paragraph of the 654, 47 Atl. 456 (jurisdiction to de- text is cited in Daniels v. Benedict, cree the transfer of written instru- 50 Fed. 347 (partition), ments). § 175 EQUITY JURISPRUDENCE. 222 covery.i While the equitable relief must be of the same general nature as that granted by the law courts, it need not be of the same external form, nor be accompanied by the same incidents.^ Thus where a decree in equity awards to the plaintiff, as his ultimate relief, the possession of certain land, it may, as a preliminary to and basis of such award, adjudge his estate and title — in fee, for life, or for years — in and to such land; while the judgment in an ac- tion of "ejectment" simply awards the possession, with- out expressly adjudicating upon the estate or title. Also, in most instances of pecuniary recoveries in equity, the money is regarded and treated as a fund, which is either awarded to the single claimant, or is distributed among the several claimants in the shares to which they are ad- judged to be entitled. The cases are very few indeed in which a court of equity, in the same manner and form as a court of law, decrees the payment to the plaintiff of a sum of money merely as a debt or as compensatory dam- ages.^ Another important element of the concurrent § 175, 1 In respect to no other topic connected with equity has there been such confusion of treatment, and such utter lack of any consistent prin- ciple, among text-writers, as in relation to the matter of the concurrent jurisdiction. As illustrations: Because some purely legal rights and legal causes of action may be occasioned by fraud, accident, or mistake, many text-writers have therefore placed fraud, accident, and mistake, and every- thing pertaining to them, wholly within the concurrent jurisdiction of equity. Although the primary right arising therefrom may be entirely equitable, and although the remedy conferred may be one which can be administered only by a court of equity, such as reformation, cancellation, injunction, etc., they are all, right and remedy, treated as though belong- ing to this branch of equity jurisdiction. In the same manner, the sub- ject of partnership, as an entirety, is referred to this jurisdiction, although the interest to be maintained and the remedy to be obtained are wholly equitable in their nature. These instances are examples merely of a mode of treatment which fails to draw any true line of distinction between the two great departments of the equity jurisdiction. § 175, (b) For an instance where Bally v. Hornthal, 154 TT. Y. 64S, Bucli relief was required, and a mere 661, 61 Am. St. Eep. 645, 652, 49 personal judgment was rendered, see N. E. 56. 223 THE CONCURRENT JURISDICTION. § 175 equitable jurisdiction exists in the marked difference be- tween the modes of procedure at law and in equity with reference to the actual rendition of final judgment and the form of such judgment. The judgment in an action at law, unaltered by modern statutes, is most truly a yea, yea, or a nay, nay; that is, it is a single, undivided award, or denial of some one of the three kinds of relief above de- scribed as alone possible; no adjustment of opposing rights, no partial relief to each of the opposing litigants, is permitted. The judgment is either for the defendant wholly, that the plaintiff take nothing by his action, or for the plaintiff wholly, that he recover possession of a speci- fied tract of land, or of a specified chattel, or that he re- cover a single sum of money from the defendant, or from all the defendants if there are more than one. The doc- trine of set-off, by which a defendant may recover judg- ment for a debt against the plaintiff, is wholly of a statu- tory origin; and the doctrine of recoupment, by which the plaintiff's pecuniary recovery may be lessened by means of a claim for damages in favor of the defendant, is a very recent innovation upon the common-law methods of pro- cedure. The modes of procedure in a court of equity have never been thus restricted. Its decree is not confined to a single adjudication for or against the defendant; but as a preliminary, and leading up to the final award in favor of either party, or even in the very final award itself being thus partially in favor of both litigants, it may make any adjustments, admit any limitations, and determine upon any cross-demands and subordinate claims which complete justice done to the parties shall require. The decree in equity can thus easily shape itself to the circumstances of each case, even when the final relief is only an award of money, or of possession of land or of chattels. <^ The in- stances to which the concurrent jurisdiction extends may § 175, (c) For example, although estate by a cancellation of his in- an administrator cannot, to the dividual liability to the debtor of detriment of creditors, distributees, the estate, yet such debtor is en- or legatees, discharge a debt due the titled to a credit by way of equi- § 176 EQUITY JURISPRUDENCE. 224 therefore be described, in a general way, as follows : First, those cases where the primary right, interest, or estate is of course legal, and where the law gives its remedy, but from the superior flexibility of the equitable procedure, and the greater power of the equitable decrees to do com- plete justice, the relief conferred by equity, although of the same kind as that given by the law, is more efficient and complete ; and secondly, those comparatively few cases where, from the arbitrary, rigid, and technical nature of its rules of procedure, the law can give no remedy at all.^ In further treatment of this subject, I shall state the gen- eral doctrines upon which the jurisdiction rests, and which regulate all possible instances of its exercise, and shall then enumerate and explain the important and well-settled cases which come within its scope. § 176. General Principle — No Concurrent Jurisdiction.a The principle may be stated in its broadest generality, that in cases where the primary right, interest, or estate to be maintained, protected, or redressed is a legal one, and a court of law can do as complete justice to the mat- ter in controversy, both with respect to the relief granted § 175, 2 As illustrations of this second class : by the ancient rules of common-law procedure, at the time when the equity jurisdiction com- menced, there could be no recovery at law on a lost bond; and for the same reason, one partnership cannot maintain an action at law against another firm, when the two firms have a common member. table set-off, where, by its allowance, equitable set-off has not been spe- justice will be done as between him cifically pleaded. State v. Donegan, and the administrator, without af- 94 Mo. 68, 6 S. W. 693. fecting the rights of any one except § 176, (a) Cited with approval in those of the administrator as heir Rogers v. Eogers, 17 R. I. 623, 24 or devisee. And where evidence of Atl. 46. Cited, generally, to the such equitable set-off has been re- effect that damages awarded by ceived without objection, being thus equity are only such as are ancillary before the court with the implied to the main relief, in Karns v. Allen, admission that the pleadings were 135 Wis. 48, 15 Ann. Cas. 543, 115 broad enough to allow its reception, N. W. 357; cited in Gill v. Ely- such judgment may be given upon Norris Safe Co., 170 Mo. App. 478, the facts as the right of the matter 156 S. W. 811. required, although the defense of an 225 THE CONCURRENT JURISDICTION. § 176 and to tlie modes of procedure by which such relief is conferred, as could be done by a court of equity, equity will not interfere even with those peculiar remedies which are administered by it alone, such as injunction, cancella- tion, and the like, much less with those remedies which are administered both by it and by the law, and which therefore belong to its concurrent jurisdiction.! This prin- ciple, however, must be understood as referring to the original condition of law and equity, at a period wheu equity was establishing its jurisdiction, and before the remedial powers of the law courts had been extended by statutes, or enlarged by the gradual adoption of equitable notions; for, as will be more fully shown hereafter, the present power of the law courts to grant complete relief does not, in general, deprive equity of a jurisdiction which it had formerly acquired, because the law courts then pos- sessed no such power.2 But in order that the general principle may apply, the sufficiency and completeness of the legal remedy must be certain; if it is doubtful, equity may take cognizance.^ Wliile the concurrent jurisdiction of equity thus depends upon the inadequacy of legal rem- § 176, 1 Southampton Dock Co. v. Southampton, etc., Board, L. R. 11 Eq. 254; Collins v. Clayton, 53 Ga. 649; Craft v. Dickens, 78 111. 131; Dart V. Barbour, 32 Mich. 267, 271; Ross v. Buchanan, 13 111. 55, 58; Mason v. Piggott, 11 111. 85, 89; and the same doctrine applies under the reformed system of procedure: Kyle v Frost, 29 Ind. 382; Claussen v. Lafrenz, 4 G. Greene, 224, 225-227. See also, sustaining the general principle as stated in the text, Grand Chute v. Winegar, 15 Wall. 373 ; Insurance Co. v. Bailey, 13 Wall. 616 ; Hipp v. Babin, 19 How. 271 ; South Eastern R'y v. Brogden, 3 Macn. & G. 8; Phillips v. Phillips, 9 Hare, 471; Moxon v. Bright, L. R. 4 Ch. 292; Smith v. Leveaux, 2 De Gex, J. & S. 1; Foley v. Hill, 1 PhiU. Ch. 399, 2 H. L. Cas. 28. § 176, 2 Varet v. New York Ins. Co., 7 Paige, 560, 568 ; King v. Bald- win, 2 Johns. Ch. 554, 17 Johns. 384, 8 Am. Dec. 415; Bromley v. Hol- land, 7 Ves. 3, 19, per Lord Eldon; Atkinson v. Leonard, 3 Brown Ch. 218, 224, per Lord Thurlow; Billon v. Hyde, 1 Atk. 126, per Lord Hard- wicke. And see post, § 209. § 176, 3 Rathbone v. Wan-en, 10 Johns. 587; King v. Baldwin, 2 Johns. Ch.554,17 Johns. 384, 8 Am. Dec.415;Bateman v. Willoe, 1 Schoales & L. 1—15 § 177 EQUITY JURISPRUDENCE. 226 edies for the particular controversy, or for the class of cases of which the particular controversy is an instance, it is impossible to define, by any single formula, what is the adequacy or sufficiency of the remedy at law which shall prevent an exercise of the equitable jurisdiction. Instead of attempting to formulate such a comprehensive proposition, we must describe the various classes of cases in which this adequacy exists, and over which, as a conse- quence, the concurrent jurisdiction of equity does not extend. §177 Illustrations. a — In all cases where the plaintiff holds or claims to have a purely legal estate in land, and simply seeks to have his title adjudicated upon,^ or to re- cover possession, against an adverse claimant who also relies upon an alleged legal title, there being no equitable feature of fraud, mistake, or otherwise, calling for the application of equitable doctrines or the granting of pecu- liar equitable reliefs, the remedy at law is adequate, and the concurrent jurisdiction of equity does not exist. A suit in equity, under its concurrent jurisdiction, will not be maintained to take the place of the action of ejectment, and to try adverse claims and titles to land which are wholly legal, and to award the relief of a recovery of pos- session.i ^ "While this general doctrine is well established, 205, per Lord Redesdale; Southampton Dock Co. v. Southampton, etc., Board, L. R. 11 Eq. 254; South Eastern R'y v. Brogden, 3 Macn. & G. 8 § 177, 1 Welby v. Duke of Rutland, 6 Brown Pari. C. 575 (vol. 2, p. 39, in Tomlins's ed.') ; Hill v. Proctor, 10 W. Va. 59, 77; Caveds v. Billings, 16 Fla. 261; Strubher v. Belsey, 79 111. 307; Phelps v. Harris, 51 Miss. § 177, (a) Cited with approval in souglit to remove cloud on title be- Woodsworth v. Tanner, 94 Mo. 124, long to the exclusive jurisdiction. 7 S. W. 104; Eogers v. Kogers, 17 §177, (c) Ejectment Bills. — The E. I. 623, 24 Atl. 46; cited, also, in text is cited in Porter v. Armour & Illinois Steel Co. v. Sehroeder, 133 Co., 241 111. 145, 89 N. E. 356; in Wis. 561, 126 Am. St. Rep. 977, 14 Watkins v. Childs, 79 Vt. 234, 65 L. R. A. (N. S.) 239, 113 N. W. 51. Atl. 81 (suit concerning disputed §177, (b) It must be borne in boundaries). In the following cases, mind that cases where relief is the plaintiff being out of possession, 227 THE CONCURRENT JURISDICTION. § 177 still, in addition to the particular cases of disputed bound- aries, partition, and assignment of dower, over wliich the concurrent jurisdiction may extend, and in which a remedy- strictly legal may be granted, a court of equity will also confer the final relief of possession, and will decree a de- fendant to deliver up possession of land to the owner, when such relief is incidental to the main object of the suit, and the action is brought for some object otherwise within the 789, 793; Lewis v. Cocks, 23 Wall. 466, 469; Boston Diatite Co. v. Flor- ence Mfg. Co., 114 Mass. 69, 19 Am. Rep. 310 ; Whitehead v. Kitson, 119 ]\Iass. 484; Griswold v. Fuller, 33 Mich. 268; First Nat. Bank v. Bininger, 26 N. J. Eq. 345; Woodi'ufie v. Robb, 19 Ohio, 212, 214; Wolfe v. Scar- borough, 2 Ohio St. 361, 368; Woleott v. Robbins, 26 Conn. 336; Green V. Spring, 43 111. 280; Roberts v. Taliaferro, 7 Iowa, 110, 112; Shotwell v. Lawson, 30 Miss. 27, 64 Am. Dec. 145 ; Bobb v. Woodward, 42 Mo. 482, 488; Waddell v. Beach, 9 N. J. Eq. 793, 795; Milton v. Hogue, 4 Ired. Eq. 415, 422; Pell v. Lander, 8 B. Mon. 554, 558; Doggett v. Hart, 5 Fla. 215, 58 Am. Dec. 464; Dickerson v. Stoll, 8 N. J. Eq. 294, 298; Topp v. Williams, 7 Humph. 569; Hale v. Darter, 5 Humph. 79; Hipp v. Babin, 19 How. 271, 277; Bowers v. Smith, 10 Paige, 193, 200. the bill was held to be an ejectment Pac. 50, 106 Pac. 1052; Williams v. bill, and relief was refused: Fussell Mathewson, 73 N. H. 242, 60 Atl. V. Gregg, 113 U. S. 550, 5 Sup. Ct. 687; Pittman v. Burr, 79 Mich. 539, 631; Laeassagne v. Chapuis, 144 44 N. W. 951; Leininger v. Summit U. S. 119, 12 Sup. Ct. 659; Smyth Branch R. Co., 180 Pa. St. 289, 36 V. New Orleans Canal & Banking Atl. 738; Saunders v. Racquet Club, Co., 141 U. S. 656, 12 Sup. Ct. 113; 170 Pa. St. 265, 33 Atl. 79, 37 Ringo V. Binns, 35 U. S. (10 Pet.) Wkly. Notes Cas. 130; Chambersburg 269; McGuire v. Pensacola City Co., Borough School Dist. v. Hamilton 105 Fed. 677, 44 0. C. A. 670; John- Tp. School Dist., 228 Pa. St. 119, 77 son V. Munday, 104 Fed. 594, 44 Atl. 414; Rogers v. Rogers, 17 R. I. C. C. A. 64; E'rskine v. Forest Oil 623, 24 Atl. 46; New York & N. E. Co., 80 Fed. 583; Eiffert v. Craps, 58 R. Co. v. City of Providence, 16 Fed. 470, 7 C. C. A. 319, 8 U. S. App. R. L 746, 19 Atl. 759; Chandler v. 436; Jordan v. Phillips & Crew Co., Graham, 123 Mich. 327, 82 N. W. 126 Ala. 561, 29 South. 831; Morgan 814; .Jones v. Fox, 20 W. Va. 370. V. Lehman, Durr & Co., 92 Ala. 440, As stated in Frost v. Walls, 93 Me. 9 South. 314; Ohm v. City and 405, 45 Atl. 287, "It is not the busi- County of San Francisco (Cal.), 25 ness of equity to try titles and put Pac. 155; Gage v. Mayer, 117 III. one party out and another in." A 632, 7 N. E. 97; Atkinson v. J. R. lessee out of possession cannot try in Crowe Coal & Min. Co., SO Kan. 161, equity the right of one in possession 18 Ann. Cas. 242, 39 L. R. A. 102 claiming to hold under a prior lease. §177 EQUITY JURISPRUDENCE. 228 equity jurisdiction. 2 d in \[]^q manner, the concurrent jurisdiction does not embrace suits by the legal owner to §177, 2 Green v. Spring, 43 111. 280; Roberts v. Taliaferro, 7 Iowa, 110, 112. Weiss V. Levy, 166 Mass. 290, 44 N. K. 225. A receiver cannot maintain a bill to recover possession of land from a stranger to the equity case in which he was appointod. Coles v. Northrup, 66 Fed. 831, 14 C. C. A. 138, 30 U. S. App. 270. The mere fact that the 'dispute involves a question of boundary does not give jurisdiction, iiuless the case is one of which equity, under its established juris- diction, has cognizance. Walker v. Leslie, 90 Ky. 642, 14 S. W. 682; Watkins v. Childs, 79 Vt. 234; 65 Atl. 81 (citing text); Carberry v. West Virginia & P. R. Co., 44 W. Va. 260, 28 S. E. 694. In some juris- dictions it is held that where a ques- tion of title is raised in a 2} court of equity, having obtained jurisdiction of the cause for the purpose of an injunction, may decide the whole controversy and render a final decree, even though all the issues are legal in their nature, capable of being tried by a court of law, and the legal remedies therefor are ade- quate. ^ ^ In fact, the rule is more general still in its opera- § 235, 2 Gilliam v. Chancellor, 43 Miss. 437, 448, 5 Am. Rep. 498, and cases cited. This seems to be the system prevailing in a considerable number of states. § 236, 1 Cornelius v. Morrow, 12 Heisk. 630 ; Mays v. Taylor, 7 6a. 238, 243, 244; Rust v. Ware, 6 Gratt. 50, 52 Am. Dec. 100; Billups v. Sears, 5 Gratt. 31, 37, 38, 50 Am. Dec. 105 ; Parker v. Kelly, 10 Smedes & M., 184; Oelriehs v. Spain, 15 Wall. 211, 228. In the very recent case of Cornelius v. Morrow, 12 Heisk. 630, which was a suit to enjoin §236, (a) Suits to Enjoin Actions §§ 236-240 are cited in Hagen v. or Judgments — Full Relief. — Cited in Lyndonville Nat. Bk., 70 Vt. 543, Coons V. Coons, 95 Va. 434, 64 Am. 556, 67 Am. St. Eep. 680, 689, 41 St. Rep. 804, 28 S. E. 885; United Atl. 1046, 1051. See, also, Ducktown, States Min. Co. v. Lawson, 115 Fed. S. C, & S. Co. v. Barnes (Tenn.), 60 1005; Fife v. Gate, 85 Vt. 418. 82 S. W. 593; W. V. Davidson Lumber Atl. 741 (although the injunction Co. v. Jones (Tenn. Ch. App.). 62 covers only part of the controversy). S. W. 386; Hickman v. White (Tex. § 236 EQUITY JURISPRUDENCE. 368 tion, and extends to all suits brought to obtain the special relief of injunction, and is not confined to suits for the purpose of enjoining actions or judgments at law. It may a judgment recovered at law by default, on a note, it was held that where defendant at law has a legal defense available at law, but not free from difficulty in its establishment, and a second defense wholly equitable, he may resort to equity at once, enjoin the action or judgment at law, and have all the issues tried in the equity suit. In Mays v. Taylor, 7 Ga. 238, 243, 244, which was a suit to enjoin a judgment at law and the execution thereon, on the ground that the judgment creditor had violated an agreement made with the complainant (the judgment debtor) concern- ing the issuing of an execution and the enforcement of the judgment, the court held that the complainant could have had an adequate remedy at law by an action for damages for the breach of such agreement, but still, as equity had jurisdiction for the purpose of enjoining the execution, the court would retain and decide the whole cause, and grant full relief to the complainant. It therefore decreed that defendant should repay all the money which had been collected on the execution in violation of the agreement.** In Rust v. Ware, 6 Gratt. 50, 52 Am. Dec. 100, which was a suit to enjoin a judgment at law on ground of a palpable mistake by the jury and newly discovered evidence, it was held that as the court had a jurisdiction to enjoin the judgment, it would retain and decide the whole cause on the merits, and not send it back for a new trial at law. In Billups V. Sears, 5 Gratt. 31, 37, 38, 50 Am. Dec. 105, the facts were similar and the ruling the same. Civ. App.), 29 S. W. 692; Houston possession have been retained for Rice Milling Co. v. Hankamer, 43 full relief. Probert v. McDonald, 2 Tex. Civ. App. 576, 97 S. W. 119; S. D. 495, 39 Am. St. Rep. 796, 51 Butler V. Scottish-American Mort- N. W. 212; Leighton v. Young, 52 gage Co., 93 Miss. 215, 46 South. 829. Fed. 439, 18 L. R. A. 266, 3 C. C. A. In Gulf, C. & S. F. R. R. Co. v. 176, 10 U. S. App. 298. Compare Schneider (Tex. Civ. App.), 28 S. W. Deepwater R. Co. v. D. H. Motter 260, an injunction was issued against & Co., 60 W. Va. 55, 116 Am. St. the enforcement of a judgment of a Rep. 873, 53 S. E. 705 (A sues B on justice of the peace, bul the court contract, and A's creditors garnish retained the case to try the original B; injunction on B's behalf against cause of action, although the amount the creditors should not draw A's involved was less than the limit of suit into equity, as it ia an inde- jurisdiction. In Coons v. Coons, 95 pendent matter and can best be Va. 434, 64 Am. St. Rep. 804, 28 tried by jury). S. E. 885, it was held that a hill to §236, (b) See, also, the similar enjoin an award of arbitrators may case, Everett v. Tabor, 127 Ga. 103, be retained for legal relief. Bills to 119 Am. St. Rep. 324, 56 S. E'. 123. enjoin execution sales and writs of 3G9 JUKISDICTION EMBRACES WHOLE MATTER. § 236 be stated as a general proposition, that wherever the court of equity has jurisdiction to grant the remedy of in- junction for some special purpose, even though the injunc- tion covers only a portion of the controversy, it may go on and decide all the issues, and make a final decree granting full relief.2 c § 236, 2 People v. Chicago, 53 111. 424, 428 ; Armstrong v. Gilchrist, 2 Johns. Cas. 424, 430, 431; Jesus College v. Bloom, 3 Atk. 262, 263, per Lord Hardwicke. People v. Chicago, 53 111. 424, 428, is a strong case. A statute required that all the proceedings of the city common council should be published in the German newspaper having the largest circula- tion. The common council designated a certain German newspaper. Tlie owners of another paper claimed to be entitled, and brought a suit in chancery against the city officers and the designated paper, praying an injunction and general relief. The court held "that while there may be grave doubts whether a court of equity would take jurisdiction for the mere purpose of compelling the proper execution of the statute in ques- tion on the part of the common council, yet, having acquii'ed jurisdiction for a purpose clearly within the province of a court of chancery, — that of awarding an injunction,^ — it may retain the bill for the purpose of ascertaining and enforcing all the rights of the parties properly involved § 236, (c) Injunction Suits, in Gen- Bessemer Irr. Ditch Co. v. WtooUey eral: Retaining Jurisdiction. — Cited (Colo.), 76 Pac. 1053; My Laundry in Danielson v. Gude, 11 Colo. 87, Co. v. Schmeliiig, 129 Wis. 597, 109 17 Pac. 283; Richi v. Cliattanooga N. W. 540 (damages in connection Brewing Co., 105 Tenn. 651, 58 S. W. with injunction against breach of 646; quoted. Freer v. Davis, 52 W. covenant not to engage in competing Va. 1, 94 Am. St. Rep. 895, 59 L. R. A. business). But see Graeff v. Felix, 556, 43 S. E. 164 (dissenting opin- 200 Pa. St. 137, 49 Atl. 758, where ion) ; Garden City Sand Co. v. South- complainant sought to enjoin parties ern Fire Brick and Clay Co., 260 claiming to be water commissioners 111. 231, Ann. Cas. 1914D, 173, 103 from purchasing land on the ground N. E. 207 (injunction against re- that they were no longer in office, moving clay from land with notice The court held that the main pur- of plaintiff's prior contract to take pose of the bill was to try title to the clay, damages awarded as inei- office, and that it would not take dent to injunctio'n). See, also, Na- jurisdiction. "It is quite true, as tional Docks & N. ,T. J. C. E. R. Co. held by the learned judge below, v. Penn. R'y Co., 54 N. J. E'q. 10, 33 that equity, having acquired juris- Atl. 219; Gaffey v. Northwestern diction of a case, may decide all Mut. Life Ins. Co. (Neb.), 98 N. W. matters incidentally connected with 826; Getheil Park Inv. Co. v. Town it, so as to make a final determina- of Montclair (Colo.), 76 Pac. 1050; tion of the whole subject; but this 1—24 § 237 EQUITY JURISPRUDENCE. 370 § 237. Particular instances of the operation of the above general rule concerning the remedy of injunction may be seen in the cases of waste and of private nuisance. Origi- nally the jurisdiction over cases of waste was confined to courts of law; the legal remedy by action for damages was regarded as adequate, and as the only remedy. The same was true of private nuisance. In time it was felt that this merely compensatory relief was insufficient under some cir- cumstances, and that a preventive remedy was necessary' to the ends of justice. Equity therefore assumed a jurisdic- tion to grant an injunction restraining the commission of actual or threatened waste; and having obtained jurisdic- tion for the purpose of awarding this special relief, which, in many instances, is not complete, the court will retain the cause, and decree full and final relief, including damages, and when necessary, an abatement of whatever creates the in the subject-matter of the controversy." In Armstrong v. Gilchrist, 2 Johns. Cas. 424, 430, 431, the general doctrine was thus stated by Rad- cliffe, J., and Kent, C. J. (pp. 430, 431) : "The court of chancery, having acquired cognizance of the suit for the purpose of discovery or injunction, will, in most cases of account, whenever it is in full possession of the merits, and has sufficient materials before it, retain the suit, in order to do full justice between the parties, and to prevent useless litigation and expense." In the well-known case of Jesus College v. Bloom, 3 Atk. 262, 263, Lord Hardwioke, speaking of the principle under discussion, said: "So in bills for an injunction, the court will make a complete decree, and give the party a satisfaction, and not oblige him to bring an action at law as well as a bill here." rule does not extend to a ease where ferentially." And for a similar in- only some incidental matter is of stance, see Broadis v. Broadis, 86 equitable cognizance, and thereby Fed. 951, citing text, §§ 231-242. In enable the court to draw in a main a suit to enjoin unfair competition, subject of controversy which, has a it was held, in New Jersey, improper distinct and appropriate legal rem- to award damages in addition to an edy of its own. That is the present accounting of profits: L. Martin Co. case. The only subject of equitable v. L. Martin & Wilckes Co., 75 N. J. cognizance in the case is found in Eq. 257, 20 Ann. Cas. 57, 21 L. R. A. the contemplated purchase, which is (N. S.) 526, 72 Atl. 294. reversing a mere incident to the main purpose 75 N. J. Eq. 39, 71 Atl. 409. of the bill, and is only pleaded in- 371 JUEISDICTION EMBRACES WHOLE MATTER. §237 waste or causes the nuisance. ^ '^ The same description will apply to all cases of private nuisance in which a court of § 237, 1 Jesus College v. Bloom, 3 Atk. 262, 263. This was a suit for an account of waste and payment of whatever was found due, no injunc- tion being asked for. Held, that the suit could not be maintained unless an injunction was prayed. Lord Hardwicke said (p. 263) : "The ground of coming into this court is to stay waste, and not for the satisfaction for the damages, but for a i^revention of the wrong, which courts of law can- not do in those instances where a writ of prohibition of waste will not be granted. But in all these cases the court has gone further, mainly upon the maxim of preventing a multiplicity of suits, which is the reason that determines this court in many eases." §237, (a) The text is quoted in United States v. Denver & Rio Grande R. Co., 190 Fed. 825 (waste on public lands) ; The Salton Sea Cases, 172 Fed. 792, 97 C. C. A. 214. This section is cited generally in Robinson v. Appleton, 124 111. 276, 15 N. E. 761; In re Leeds Woolen Mills, 129 Fed. 922. Injunction Against Trespass and Waste; Retaining Jurisdiction for Damages, etc. — "Where a bill shows cause for equitable relief by injunc- tion to stay destructive and contin- uous trespass in the nature of waste, the court will decree an account and satisfaction for the injuries already done." (U. S. v. Guglard, 79 Fed. 21, citing text, §§ 231-237. See, also, Peck V. Ayers & Lord Tie Co., 116 Fed. 273, 53 C. C. A. 551, where the court retained the bill to try title. The principle applies to suits to en- join continuing trespasses. Brown V. Solary, 37 Fla. 102, 19 South. 161; W/atson V. Watson, 45 W. Va. 290, 31 S. E. 939. See, also, Chicot Lum- ber Co. V. Dardell, 84 Ark. 140, 104 S. W. 1100 (damages on cross-com- plaint, for cutting of timber by plaintiff pending suit); Atlantic & C. Air Line Ry. Co. v. Victor Mfg. Co., 79 S. C. 266, 60 S. E. 675. But it has been held that while the legislature may authorize an injunc- tion against simple acts of trespass, it cannot authorize the assessment of damages in actions to enjoin such acts of trespass which would not have come within the cognizance of chancery courts independently of statute. Wiggins v. Williams, 36 Fla. 637, 30 L. B. A. 754, 18 South. 859; McMillan v. Wiley (Fla.), 33 South. 992. The question of retain- ing jurisdiction to award damages in cases of injunction against continu- ing trespass is carefully examined in Lynch v. Metropolitan El. R'y Co., 129 N. Y. 274, 26 Am. St. Rep. 523, 15 L. R. A. 287, 29 N. E. 315, where it is held that the amount of such damages does not present an issue upon which the parties are entitled to a trial by jury; citing Williams v. New York Cent. R. R. Co., 16 N. Y. 97, 69 Am. Dec. 651; Henderson v. New York Cent. R. R. Co., 78 N. Y. 423; Shepard v. Manhattan R'y Co., 117 N. Y. 442, 23 N. E. 30, and other cases. In Whipple v. Village of Fair Haven, 63 Vt. 221, 21 Atl. 533, the court took jurisdiction to en- join a town from draining on to § 237 EQUITY JUKISPRUDENCE. 372 equity may have jurisdiction to interfere by injunction. ^ ^ There are some other instances, in addition to those of in- junction, waste, nuisance, and continuous or irreparable trespass, where equity, having obtained jurisdiction for some particular purpose, will complete the possible relief by decreeing damages; but this application of the prin- ciple is not general; on the contrary, it is rather excep- tional. The award of mere compensatory damages, which are almost always unliquidated, is a remedy peculiarly belonging to the province of the law courts, requiring the aid of a jury in their assessment, and inappropriate to the judicial position and functions of a chancellor. It may be stated, therefore, as a general proposition, that a court of equity declines the jurisdiction to grant mere compensatory damages, when they are not given in addition to or as an incident of some other special equitable relief, unless under special circumstances the exercise of such jurisdiction may be requisite to promote the ends of justice. <^ There are, § 237, 2 Additional instances of nuisance and of waste will be found in the next subsequent section on preventing a multiplicity of suits. complainant's land, and then re- (in suit by state to enjoin liquor tained the bill to award damages. nuisance, may render judgment for In Parker v. Shannon, 114 111. 192, the statutory penalties). See, also, 28 N. E. 1099, it was held, however, Cobia v. Ellis, 149 Ala. 108, 42 South, that chancery will not try the title 751 (damages in suit to enjoin diver- to land, on having acquired jurisdic- sion of water) ; Barnett v. Tedescki, tion, merely to enjoin waste tem- 154 Ala. 474, 45 South. 904 (in suit porarily while the legal title is in to abate bawdy-house as a nui- dispute. To the same effect, see sance); but see Norton v. Colusa P. Freer v. Davis, 52 W. Va. 1, 94 Am. M. & S. Co., 167 Fed. 202. St. Rep. 895, 59 L. E. A. 556, 43 §237, (c) The text is quoted in S. E. 164. Sadlier v. City of New York, 185 §237, (b) Injunction Against Nul- N. Y. 408, 78 N. E. 272; and cited sance. — Cited to this effect in Fleish- in Manville Covering Co. v. Bab- ner v. Citizens' E. E. & I. Co., 25 Or. cock, 28 E. I. 496, 14 L. R. A. (N. S.) 119, 35 Pac. 174; Morris v. Bean, 123 900, 68 Atl. 421. Fed. 618 (suit to restrain diversion Damages, Without Other Relief, of water) ; Eichi v. Chattanooga Rarely Awarded. — Accordingly, ex- Brewing Co., 105 Tenn. 651, 58 S. W. cept in the instances stated below in 646; State v. Marshall, 100 Miss. 626, the text and notes, a case will not Ann. Cas. 1914A, 434, 56 South. 79.2 be retained when no right to equi- 373 JURISDICTION EMBBACES WHOLE MATTER. §237 however, special circumstances in which the principle un- der discussion is invoked and is extended to the award of table relief is made out. "If such. a procedure could be tolerated, a party having an action maintainable at law, but which he would prefer not to have presented to the con- sideration of a jury, could quite fre- quently so frame his pleadings as to entitle him to go to trial before the court on its equity side, and then claim the right to have the court award the damages in violation of the constitutional guaranty of a right of trial by jury." Green v. Stewart, 45 N. Y. Supp. 982. 19 App. Div. 201. Thus, "when an action at law is sought to be restrained by suit in equity, and part of the grounds on which the bill rests are purely of equitable cognizance, and part, when considered separately, are strictly of legal cognizance, and the proofs do not establish the alle- gations which are of purely equi- table cognizance, a court of equity has not jurisdiction to further re- strain the action at law, and pro- ceed to determine the legal rights of the parties." Collier v. Collier (N. J. Eq.), 33 Atl. 193. See, also, Dugan V. Cureton, 1 Ark. (1 Pike) 31, 31 Am. Dec. 727; Eoddy v. Cox, 29 Ga. 298, 74 Am. Dec. 64; Boon- ville Nat. Bank v. Blake, 166 Ind. 427, 76 N. E. 529 (where bill can be maintained only on theory of con- spiracy, and no conspiracy proved, not retained for legal relief) ; Barnes v. N. Eoy & Son, 27 R. I. 534, 65 Atl. 277 (where bill for injunction by public scavenger to restrain others from removing dead animals from streets fails, court will not retain bill to award mere money damages); Rock County v. Weirick, 143 Wis. 500, 128 N. W. 94. The subject is considered in the mono- graphic notes to Deepwater R. Co. V. D. H. Hotter & Co., 60 W. Va. 55, 116 Am. St. Rep. 873, 877-880, 53 S. E. 705; and to .Johnston & Grom- mett Bros. v. Bunn, IDS Va. 490, 19 L. R. A. (N. S.) 1064 et seq., 62 S. E. 341. In Crowell v. Young (Ind. T.), 64 S. W. 607, it was held that a money judgment cannot be given upon a bill for foreclosure when the right to equitable relief is not made out; but see Johnston & Grommett Bros. v. Bunn, 108 Va. 490, 19 L. R. A. (N. S.) 1064, 62 S. E. 341. In Bittenbender v. Bittenbender, 185 Pa. St. 135, 39 Atl. 838, the com- plainant failed in a bill to annul a contract for the dissolution of a partnership. It was held that the bill would not be retained for the purpose of working out the equities under the contract. In Toplitz v. Bauer, 49 N. Y. Supp. 840, 26 App. Div. 125, the court refused to set aside an assignment of an insurance policy for fraud. It was held that the bill should not be retained to award damages. On the general principle, see, also, Alger v. Ander- son, 92 Fed. 696, and eases there re- viewed; Kinsey v. Bennett, 37 S. C. 319, 15 S. E. 965; Boston Blower Co. V. Carman Lumber Co., 94 Va. 94. 26 S. E. 390; Hawes v. Dobbs, 18 N. Y. Supp. 123; Whyte v. Builders League, 54 N. Y. Supp. 822, 35 App. Div. 480; Vincent v. Moriarty, 52 N. Y. Supp. 519; Dowell v. Mitchell. 105 U. S. 430; Lamb Knit Goods Co. v. Lamb, 119 Mich. 568, 78 N. W. 646; Miller v. St. Louis & K. C. E. Co., 162 Mo. 424, 63 S. W. 85; Gamage §237 EQUITY JURISPRUDENCE. 374 mere damages.*^ If a court of equity obtains jurisdiction of a suit for the purpose of granting some distinctively- equitable relief, such, for example, as the specific perform- ance of a contract, or the rescission or cancellation of some instrument, and it appears from facts disclosed on the hearing, but not known to the plaintiff when he brought his suit, that the special relief prayed for has become im- practicable, and the plaintiff is entitled to the only alter- native relief possible of damages, the court then may, and generally will, instead of compelling the plaintiff to incur the double exj^ense and trouble of an action at law, retain the cause, decide all the issues involved, and decree the payment of mere compensatory damages. ^ ® § 237, 3 Holland v. Anderson, 38 Mo. 55, 58 ; Wiswall v. McGovern, 2 Barb. 270; Cuff v. Borland, 56 Barb. 481. Holland v. Anderson, 38 V. Harris, 79 Me. 531, 11 Atl. 422; Ahl's Appeal, 129 Pa. St. 49, 18 Atl. 475, 477; Kerlin v. Knipp, 207 Pa. St. 649, 57 Atl. 34. Exemplary or Punitive Damages not awarded in equity: See Karns v. Allen, 135 Wis. 48, 15 Ann. Cas. 543, 115 N. W. 357. §237, (d) The text is quoted in Sadlier v. City of New York, 185 N. Y. 408, 78 N. K 272. §237, (e) Alternative Relief of Damages, When Special Relief Fa;ls. Cited with approval in Blair v. Smith, 114 Ind. 114, 5 Am. St. Rep. 593, 15 N. E. 817; Koberts v. Leutzke, 39 Ind. App. 577, 78 N. E. 635 (cancellation of note); .Johnson V. Carter, 143 Iowa, 95, 120 N. W. 320 (cancellation of conveyance for fraud); Martin v. Martin, 44 Kan. 295, 24 Pac. 418; Sprinkle v. Well- born, 140 N. C. 163, 111 Am. St. Rep. 827, 3 L. R. A. (N. S.) 174, 52 S. E. 666 (cancellation of deed of insane grantor) ; Van Dusen v. Bigelow (N. D.), 100 N. W. 723 (damages as alternative relief to cancellation and reconveyance); Luetzke v. Eoberts,. 130 Wis. 97, 109 N. W. 949 (cancella- tion of notes); quoted in Cole v. Getzinger, 96 Wis. 559, 71 N. W. 75; quoted also in Muskingum County Com'rs v. State, 7S Ohio St. 287, 85 N. E. 562 (specific perform- ance); Wright V. Chandler (Tex. Civ. App.), 173 S. W. 1173 (suit for cancellation of notes which, have got into the hands of bona fide pur- chasers retained for damages); Het- rick v. Gcrlinger Motor Car Co., 84 Or. 133, 164 Pac. 379 (same). See, also. Van Rensselaer v. Van Rens- selaer, 113 N. Y. 208, 21 N. E. 75. In the author's note are rules as to specific performance. The text is applicable to other actions. Thus, in Bigelow v. Town of Washburn, 98 Wis. 553, 74 N. W. 362, a suit was brought to enjoin the collection of a tax. Pending the suit, an officer levied on the property, and to pre- vent a sale the tax was paid. It was held that the court would retain the 375 JURISDICTION EMBRACES WHOLE MATTER. §238 § 238. The extent and operation of the general principle are also illustrated by the following instances, which do Mo. 55, was a suit by the vendee to cancel a contract for the sale of land, on the ground of the vendor's fraud. A rescission was found to be impossible, because the property had been changed, and the parties could not be restored to their original condition. The general doctrine was staled that "a court of equity will sometimes give damages, which are gen- erally only recoverable at law, in lieu of equitable relief, when it has obtained jurisdiction on other grounds." The application of the prin- ciple to the relief of damages has frequently occurred in suits for a specific performance. The following rules have been established by Amer- ican decisions : If through a failure of the vendor's title, or any other cause, a specific performance is really impossible, and the vendee is aware of the true condition of affairs before and at the time he brings his suit, the court, being of necessity obliged to refuse the remedy of specific performance, will not, in general, retain the suit and award com- pensatory damages, because, as has been said, the court never acquired a case for complete relief. In Moon V. National Wall-Paper Co., 66 N. Y. Supp. 33, 31 Misc. Kep. 631, the com- plainant sued to abate a nuisance which was voluntarily abated after the suit was commenced, and the court retained the ease for the pur- pose of awarding damages. In Lewis V. Town of Kingston, 16 E. I. 15, 27 Am. St. Rep. 724, 11 Atl. 173, com- plainant sought to enjoin a town from removing his building and grading his lot. The town com- pleted the work after the filing of the hill, and the court retained juris- diction to give damages. In Case V. Minot, 158 Mass. 577, 22 L. R. A. 536, 33 N. E. 700, a tenant sued his landlord to enjoin a nuisance. The right to the injunction was lost because of the termination of the lease before the hearing. It was held that the suit should be retained for the purpose of awarding dam- ages. In general, whenever a court of equity has jurisdiction to enter- tain a bill for an injunction against the commission or continuance of a wrongful act, it may award damages in substitution for such injunction, where the defendant by his acts committed subsequent to the service of process upon him has rendered re- lief by injunction ineffectual. Hazen v. Lyndonville Xat. Bank, 70 Vt. 543, 556, 67 Am. St. Rep. 680, 689, 41 Atl. 1046, 1051, citing the text; Lewis V. Town of North Kingston, 16 E. I. 15, 26 Am. St. Rep. 724. 11 Atl. 173; Hayden v. Yale, 45 La. Ann. 362, 40 Am. St. Rep. 232, 12 South. 633; Westphal v. City of New York, 177 N. Y. 140, 69 N. E. 369. See, also, Stiefel v. New York Nov- elty Co., 43 N. Y. Supp. 1012. 14 App. Div. 371; Atkinson v. Folder, 78 Miss. 83, 29 South. 767; Eobinson v. Braiden, 44 W. Va. 183, 28 S. E. 798; State v. Sunapeo Dam Co. (N. H.), 55 Atl. 899; Sadlier v. City of New York, 185 N. Y. 408, 78 N. E. 272 (quoting the text and holding that the grant of equitable relief is not indispensable where tlie §238 EQUITY JUKISPEUDENCE. 376 not admit of any regular classification: In a. suit to redeem land sold under a trust deed made by a former owner, on jurisdiction over the cause for any purpose:' Hatch v. Cobb, 4 Johns. Ch. 559; Kempshall v. Stone, 5 Johns. Ch. 194; Morss v. Elmendorf, 11 Paige, 277; Smith v. Kelley, 56 Me. 64; McQueen v. Chouteau, 20 Mo. 222, 64 Am. Dec. 178; Doan v. Mauzey, 33 111. 227; Gupton v. Gupton, 47 Mo. 37; Milkman v. Ordway, 106 Mass. 232, 253; Sternberger v. Mc- Govern, 56 N. Y. 12, 20; and see also cases next cited. A second rule is, that if the remedy of specific performance is possible at the commence- ment of a suit by the vendee, and while the action is pending the vendor action is properly brought and the facts on which equitable relief is claimed are established, but where through special circumstances money damages only are given); Cincinnati & C. Traction Co. v. American Bridge Co., 202 Fed. 184, 120 C. C. A. 398 (bill to enforce an alleged lien; lien held invalid, but as the ques- tion of its validity was doubtful and undetermined at the time suit was brought, the case was retained for the award of damages) ; Shultz V. Shively, 72 Or. 450, 143 Pac. 1115 (in suit to foreclose logging lien, where it is impossible or difl&cult to identify the logs, court may give judgment for damages). The case of Kosen v. Mayer, 224 Mass. 494, 113 N. E. 217, presents an interesting extension of the principle laid down in the text. The purchaser of a theater sued to rescind his purchase on the ground that it was induced by his vendor's fraudulent misrepre- sentations as to the profits. Pend- ing suit the plaintiff succeeded in putting the business on a paying basis. Held, not an abuse of dis- cretion to permit him to waive his prayer for rescission, to retain the suit, and to award him damages for the fraud. The case is noteworthy in that the plaintiff voluntarily abandoned his equitable remedy, and was not forced to abandon it be- cause it had become impracticable. § 237, (f) Damages in Lieu of Spe- cific Performance, When not Granted. See, also, Hurlbut v. Kantzler, 112 111. 482; Amick v. Ellis, 53 W. Va. 421, 44 S. E. 257 (contract on its face is unenforceable). If specific performance is refused because the contract is within the statute of frauds, damages will not be allowed for its breach: Lydick v. Holland, 83 Mo. 703; and see Lavery v. Pur- sell, L. R. 39 Ch. Div. 518. Specific performance of a building contract being refused because calling for the exercise of skill and judgment, the case, in the absence of some special equity, will not be retained for the award of damages: Bromberg v Eugenotto Const. Co., 158 Ala. 323 19 L. R. A. (N. S.) 1175, 48 South 60, citing this paragraph of the text Where the suit for specific perform ance was dismissed without compen sation because of plaintiffs knowl- edge of the defect in vendor's title, plaintiff may sue at law, and the lat- ter suit is not subject to be enjoined on the claim that the subject-matter had already been determined in the equity suit: Logan v. Flattau, 73 N. J. Eq. 222, 67 Atl. 1007. On the subject of these notes, see, further, Pom. Eq. Rem. 377 JURISDICTION EMBRACES WHOLE MATTER. § 238 the ground that the sale was voidable, brought by a plain- tiff holding by a subsequent conveyance from such fonner renders this remedy impracticable by conveying the subject-matter to a bona fide purchaser for value, the court will not compel the plaintiff to bring a second action at lavp, but having acquired jurisdiction, will do full justice by decreeing a recovery of damages : ^ Morss v. Elmendorf, 11 Paige, 277 ; Woodcock v. Bennet, 1 Cow. 711, 13 Am. Dec. 56S ; Milk- man V. Ordway, 106 Mass. 232, 253, per Wells, J. The third rule is as . follows : If a specific performance was originally possible, but before the commencement of the suit the vendor makes it impossible by a convey- ance to a third person; or if the disability existed at the very time of entering into the contract on account of a defect in the vendor's title, or other similar reason, — in either of these cases, if the vendee brings his suit in good faith, without a knowledge of the existing disability, supposing, and having reason to suppose, himself entitled to the equitable remedy of a specific performance, and the impossibility is first disclosed by the defendant's answer or in the course of the hearing, then, although the court cannot grant a specific performance, it will retain the cause, assess the plaintiff's damages, and decree a pecuniary judgment in place of the purely equitable relief originally demanded. This rule is settled by an overwhelming preponderance of American authorities : ** Milkman v. Ord- §237, (s) Cited to this effect in lar relief, yet, if the facts be such Head v. Meloncy, 111 Pa. St. 99, 2 that the plaintiff might fairly and Atl. 195. See, also, Conemaugh Gas reasonably have expected the court to Co. V. Jackson Farm Gas Co., 186 Pa. grant the equitable relief of specific St. 443, 65 Am. St. Rep. 865, 40 Atl. performance, there would be such 1000. The rule applies where the con- a show of equitable cognizance and tract is performed after commence- doubtful remedy and probable cause ment of suit. Grubb v. Sharkey, 90 as would save the plaintiff from the Va. 831, 20 S. E. 784. penalty of a dismissal of the bill §237, (l») Mitchell v. Knudston for want of jurisdiction because of Land Co., 19 N. D. 736, 124 N. W. a plain, adequate and complete rem- 946. In McAllister v. Harman edy at law." Waite v. O'Neil, 72 (Va.), 42 S. E. 920, a suit by the Fed. 348; affirmed, 76 Fed. 408, 34 vendor, which failed, was retained L. R. A. 550, 22 C. C. A. 248. In for an account of money paid and Aday v. Echols, 18 Ala. 353, 52 Am. rents received. Dec. 225, specific performance was Another rule has been suggested refused because the contract was not in addition to those stated in the clearly proved, but the bill was re- author's note. "Even though the tained for damages. And see God- court should deny a specific perform- dard v. American Queen, 59 N. Y. ance of the contract in the exercise Supp. 46, 27 Misc. Rep. 482. So, of that judicial discretion which it where the suit failed for lack of has in all cases asking that particu- proof of the contract, but there was § 238 EQUITY JURISPRUDENCE. 378 owner, against a defendant deriving title partly from the trust sale and partly from another source, the court not only dismissed the plaintiff's bill, but by an affirmative way, 106 Mass. 232, 253; Chartier v. Marshall, 56 N. H. 478; Attorney- General V. Deerfield River Bridge €o., 105 Mass. 1; Peabody v. Tarliell, 2 Gush. 226 ; Andrews v. Brown, 3 Gush. 130 ; Pingree v. Goffin, 12 Gray, 288, 305 ; Woodcock v. Bennet, 1 Gow. 711, 13 Am. Dec. 568 ; Phillips v. Thompson, 1 Johns. Gh. 131; Parkhurst v. Van Gortlandt, 1 Johns. Gh. 273; Morss v. Elmendorf, 11 Paige, 277; Woodward v. Harris, 2 Barb. 439; Berry v. Van Winkle, 2 N. J. Eq. 269; Gopper v. Wells. 1 N. J. Eq. 10; Rees v. Smith, 1 Ohio, 124, 13 Am. Dec. 599; Gibbs v. Ghampion, 3 Ohio, 335; Jones v. Shackelford, 2 Bibb, 410; Fisher v. Kay, 2 Bibb, 434; Rankin v. Maxwell, 2 A. K. Marsh. 488, 12 Am. Dec. 431 ; Hopkins v. Gil- man, 22 Wis. 476 ; Tenney v. State Bank, 20 Wis. 152 ; Hall v. Delaplaine, 3 Wis. 206, 68 Am. Dec. 57; McQueen v. Ghouteau, 20 Mo. 222, 61 Am. Dec. 178; O'Meara v. North Am. Min. Go., 2 Nev. 112; GarroU v. Wilson, 22 Ark. 32 ; Harrison v. Deramus, 33 Ala. 463 ; Foley v. Grow, 37 Md. 51 ; Stevenson v. Buxton, 37 Barb. 13; Hamilton v. Hamilton, 59 Mo. 232; Gupton V. Gupton, 47 Mo. 37, 47 ; Denton v. Stewart, 1 Gox, 258 ; Groena- way V. Adams, 12 Ves. 393. In the recent case of Millkman v. Ordway, 106 Mass. 232, 253, the opinion of Wells, J., is a vei-y full, able, and in- structive examination of the doctrine in all of its aspects. I add a number of English decisions, giving construction to the statute known as "Lord Gairn's Act" (21 & 22 Vict., chap. 27, § 1, A. D. 1858), which permits a court of equity to award damages in certain cases, instead of the particular equitable relief prayed for, when the latter is found to be impracticable : Wicks V. Hunt, Johns. 372, 380; Lewers v. Earl of Shaftesbury, L. R. 2 Eq. 270; Scott v. Ra^Tnent, L. R. 7 Eq. 112; Ferguson v. Wilson, L. R. 2 Gh. 77; Durell v. Pritchard, L. R. 1 Gh. 244; Rogers v. Ghallis, 27 Beav. proof of a parol license for the con- formance and the relief is granted, struction of a building, the case was the bill will be retained for corn- retained to award compensation for plete relief. Thus, where the bill preventing the use of the building: seeks specific performance of a con- Shipley v. Fink, 102 Md. 219, 2 tract to deliver certain instruments, L. R. A. (N. S.) 1002, 62 Atl. 360. the court may decree specific per- In Combs v. Seott, 76 Wis. 662. 45 formance and then award a money N. W. 532, the statute of limitations recovery on the instruments. Clarke having run upon the contract pend- v. White, 37 U. S. (12 Pet.) 178; ing suits for specific performance. Union Cent. Life Ins. Co. v. Phillips, the cause was retained for the pur- 102 Fed. 19, 41 C. C. A. 263. See, pose of granting compensation. also, Grifiin v. Griffin, 163 III. 216, Of course when the court takes 45 N. E. 241. jurisdiction of a bill for specific per- 379 JUEISDICTION EMBRACES WHOLE MATTER. § 238 decree declared and established the defendant's title. ^ In a suit brought by the holder of a vendor's lien to enjoin the sale of land covered by the lien, about to be made by a judgment creditor of the owner, the court went on and decreed a sale of the land, and the application of its pro- ceeds in satisfaction, first, of the plaintiff's vendor's lien, and then of the judgment creditor's demand. 2 A suit being brought to reform a policy of insurance after a loss had occurred, the court retained the cause and gave the plain- tiff final and complete relief by ordering a payment of the amount due on the policy as reformed, although the remedy would ordinarily and naturally have belonged to a court of law.3 a- 175; Chinnock v. Sainsbury, 30 L. J., N. S., 409; Collins v. Stubly, 7 Week. Rep. 710 ; Corporation of Hytlie v. East, L. R. 1 Eq. 620 ; Middle- ton V. Greenwood, 2 De Gex, J. & S. 142; Soames v. Edge, John. 669; Lillie V. Legh, 3 De Gex & J. 204; De Brassac v. Martin, 11 "Week. Rep. 1020; Cory v. Thames, etc., 11 Week. Rep. 589; Howe v. Hunt, 31 Beav. 420; Norris v. Jackson, 1 Johns. & H. 319, 3 Giff. 396; Samuda v. Law- ford, 8 Jur., N. S., 739. § 238, 1 Farrar v. Payne, 73 111. 82, 91. § 238, 2 Parker v. Kelly, 10 Smedes & M. 184. A vendor had given a bond to convey land, and had taken the vendee's notes for the price, one of which notes he assigned to the plaintiff, and aftenvards gave a deed of the land to the vendee. Subsequently to this conveyance, A recovered a judgment against the vendee, and was about to sell the land in question upon an execution. The plaintiff thereupon brought this suit to enjoin such execution sale, on the ground that the vendor's lien securing his note given by the vendee was prior to the lien of A's judgment. The court held that, having jurisdiction to enjoin said sale, it would go on and settle the rights of all the parties by decreeing a sale of the land, and a payment of the plaintiff's note, and then of A's judgment out of the proceeds. § 238, 3 Franklin Ins. Co. v. McCrea, 4 G. Greene, 229 ; Com. v. Niagara Ins. Co., 60 N. Y. 619, 3 Thomp. & C. 33 ; Bidwell v. Astor Ins. Co., 16 N. Y. 263. It should be remarked, however, that all these decisions were made under the reformed procedure, by which legal and equitable reme- dies may be combined in the same "civil action." §238, (a) In Union Cent. Life Ins. compel the delivery of a life insur- Co. v. Phillips, 102 Fed. 19, 41 anee policy after the death of the C. C. A. 263, a bill was brought to insured. The court retained the bill §239 EQUITY JUEISPKUDENCE. 380 § 239. A suit was brought by creditors of a firm against the administrator of a deceased partner, to restrain him from using and disposing of certain assets which were really firm assets, under the claim that they belonged to the decedent's individual estate. The court, expressly in- voking the general principle, held that, having acquired jurisdiction over a part of the matter, it would go on and decree a full and final winding up and settlement of all the partnership matters. ^ ^ In a certain judicial proceeding in which a preliminary injunction had been issued, two injunc- tion bonds had been given by the same party as principal, but with different sureties. The injunction having been § 239, 1 Martin v. Tidwell, 36 Ga. 332, 345. to give final relief on the policy. In North British & Merc. Ins. Co. v. Lathrop, 63 Fed. 508, 70 Fed. 429, 433, 25 U. S. App. 443, an injunction was issued against an action at law on an insurance policy. The defend- ant filed a cross-bill to enforce payment. The injunction was con- tinued until it was too late to sue at law. Accordingly it was held that the court would grant the legal relief prayed for by the cross-bill, "If its object is to obtain complete relief concerning the matters set out in the original bill, even though it be affirmative in character, it need not, as against the plaintiff in such original bill, show any ground of equity to support the jurisdiction of the court." In Continental Ins. Co. V. Garrett, 125 Fed. 589, it was held that the court having obtained juris- diction to set aside an award of insurance arbitrators may properly retain the case to determine the amount of damages. Contra, in Stout V. Phoenix Assur. Co. (N. J. Eq.), 56 Atl. 691, a bill to set aside an appraisement of property de- stroyed by fire, the court refused, under the view of the jurisdiction entertained in New Jersey, to retain the case in order to determine the extent of liability. Reformation and Full Relief. — When equity takes jurisdiction to reform an instrument, it may go on and decree full relief thereon. Haynes v. Whitsett, 18 Or. 454, 22 Pae. 1072; Imperial Shale Brick Co. V. Jewett, 169 N. Y. 143, 62 N. E. 167; Kelly v. Galbraith, 186 111. 593, 58 N. E. 431; Keith v. Henkleman. 173 111. 137, 50 N. E. 692; also, Cas- tle v. Gleason, 35 S. D. 98, 150 N. W. 895, citing this paragraph of the text. And see Harvey v. United States, 105 U. S. 671, where the Court of Claims gave such relief under authority of a special statute. §239. (a) Likewise, in Kayser v. Mongham, 8 Colo. 232, 6 Pac. 803, suit was brought by one claiming to be an equitable owner of realty be- cause of partnership transactions for the purpose of compelling a convey- ance of the legal title. This relief was denied, but the court retained the case for an account and a set- tlement of the partnership affairs. 381 JURISDICTION EMBRACES WHOLE MATTER. § 240 finally dissolved, the several persons enjoined were sep- arately injured by the injunction, and therefore claimed dif- ferent amounts of damages. These several persons joined as coplaintiffs in an equity suit against the obligors, princi- pal and sureties, on the two bonds, to recover the amounts of damages to which they were respectively entitled. The court retained the cause, and decreed complete relief, deter- mining the sums to be paid by the defendants, and also the share of each plaintiff. Having jurisdiction to settle the rights of the several obligees, the plaintiffs, to the pro- ceeds, the court could in one equity suit finally settle the rights and liabilities of all the parties, and thus save time, expense, and unnecessary litigation.^ In a suit brought in the United States circuit court for the infringement of a patent right, which, under the constitution and statutes of Congress, belongs to the exclusive jurisdiction of that tri- bunal, the court retained the cause, and gave to the plain- tiff full relief by injunction, and an account of profits on a contract which had been made between the parties for the use of the patent by the defendant, which contract had been violated by the defendant. It should be particularly noticed that the cause of action arising out of the breach of this contract alone did not of itself come within the equity jurisdiction of the United States courts.^ § 240.a In a suit by a vendee to set aside a contract for the sale of land, on the ground of the vendor's fraud, or because he is unable to give a good title, the court will award a repayment of the purchase-money already paid, or damages, or make any other additional decree which § 239, 2 Oelrichs v. Spain, 15 Wall. 211, 228, per Swayne, J. § 239, 3 Brooks v. Stolley, 3 McLean, 523, 529, per McLean, J. : "Hav- ing jurisdiction [i. e., by the infringement], the court may decide other matters between the parties, which of themselves might not afford ground for the original exercise of jurisdiction." §240, (a) This paragraph is cited, 140 N. C. 163, 111 Am. St. Rep. 827, generally, in Sprinkle v. Wellborn, 3 L. R. A. (N. S.) 174, 52 S. E. 666. § 241 EQUITY JURISPRUDENCE. 382 the justice of the case may require.^ In a similar manner, a suit having been brought by the heirs of the next of kin or a decedent against his administrator, to set aside a decree of a probate court confirming his accounts and ordering a sale of real estate, which the administrator had obtained by fraud, the court held that, having obtained jurisdiction to set aside this fraudulent decree, it would grant complete and final relief, by directing an account of all his proceedings by the administrator, and a settlement and distribution of the estate, although the general juris- diction over administrations had been conferred by statute upon the probate court.^ § 241. Money arising from a sheriff's sale made in the course of a pending suit was paid into court. This fund, after an examination before a master, was found by him to be applicable upon a certain judgment in favor of one S. One L. alleged that such judgment had in fact been given to secure a debt due to himself, and he therefore claimed the money. The court held that it had incidental jurisdiction to decide these conflicting claims arising in the course of the principal suit, and to distribute the fund among the rightful owners. ^ The defendant, by one wrongful act and in one mass, detained a quantity of chat- § 240, 1 Hepburn v. Dunlop, 1 Wheat. 179, 197, per Washington, J. : "Generally speaking, a court of law is competent to afford an adequate relief to either party for a breach of the contract by the other, from what- ever cause it may have proceeded ; and whenever this is the case, a resort to a court of equity is improper. But if the contract ought not in con- science to bind one of the parties, as if he had acted under a mistake, or was imposed upon by the other party, or the like, a court of equity will interfere and afford a relief which a court of law cannot, by setting aside the contract; and having thus obtained jurisdiction of the principal ques- tion, that court will proceed to make such other decree as the justice of the case may require." § 240, 2 Keeton v. Spradling, 13 Mo. 321, 323. § 241, 1 Souder's Appeal, 57 Pa. St. 49S, 502. "Where a court of equity once obtains rightful jurisdiction of a subject, it will comprehend within its grasp and decide all incidental matters necessaiy to enable it 383 JUBISDICTION EMBRACES WHOLE MATTER. § 241 tels belonging to the plaintiff. A part of these were arti- cles of a special nature and personal value, for which dam- ages could not adequately be ascertained, and in respect of which the equity jurisdiction to compel their restoration was clear. The remaining portion were ordinary chattels, of a kind readily purchasable in the market, and for which damages could be assessed without difficulty. The plain- tiff brought a suit in equity to compel the restoration of the entire mass of chattels. The court held that since its jurisdiction attached over the one class of articles, it would decide the whole controversy in the one suit, and decree a return of the entire amount, the two kinds being con- nected by the single wrongful act of the defendant. ^ Cer- tain lands had been assigned to a widow, by virtue of her dower right. Part of these lands were occupied by ten- ants under a lease made by her husband during his life- time, and a part were occupied by tenants under leases made by the administrator after the husband's death and before the assignment to the widow. She brought a suit in equity against the administrator and these tenants, to recover the rents of the lands assigned to her which had accrued after her husband's death and before the assign- ment, namely, the rents under the lease made by her hus- band, and the rents arising under the leases made by the administrator. The suit was held to be properly brought; and the jurisdiction having attached, the court would do full justice by settling an account of the rents due or paid by the tenants of the administrator up to the time when the administrator's possession was terminated by the as- signment and delivery of the land to the widow, althougli such rents might be recovered by her in an action at law.^ to make a full and final determination of the whole controversy, and thus to terminate litigation, while it facilitates the remedy: McGowin v. Rem- ington, 12 Pa. St. 56, 51 Am. Dec. 504." § 241, 2 McGowin v. Remington, 12 Pa. St. 56, 63, 51 Am. Dec. 584. The whole opinion in this case is able and instructive. § 241, 3 Boyd v. Hunter, 44 Ala. 705, 719 ; citing Stow v. Bozeman's Ex'rs, 29 Ala. 397. § 241 EQUITY JUEISPEUDENCE. 384 In a suit to compel the delivery of certain written instru- ments under an agreement, the court decreed that defend- ant should repay moneys expended by the plaintiff in connection with their contract.* One or two other cases depending upon j)eculiar circumstances will be found in the foot-note.5 » § 241, 4 Clarke v. White, 12 Pet, 178, 187, 188. § 241, 5 Phelan v. Boylan, 25 Wis. 679 : The owners in fee in reversion of certain lands after a life tenant by the curtesy in possession brought a suit to compel him to hold a tax title of the premises which he had obtained, for the benefit of their reversionary estate as well as for his own life interest. The court held that, having acquired jurisdiction for this purpose, it would grant further relief necessary to maintain the rights of the plaintiffs; viz., it compelled the defendant to refund moneys which the plaintiffs had been compelled to pay for the taxes assessed on the premises through several years, in order to save them from tax sale, he having intentionally neglected to pay such taxes; and it might compel him to give security to pay the taxes which might be assessed in future. State V. McKay, 43 Mo. 594, 698 : The attorney-general brought this suit against certain executive officers of the state, and against the vendees, charging fraud in the sale of a railroad which had belonged to the state, and praying for a rescission of the sale, an accounting, and general relief. While the suit was pending, the legislature passed a statute confirming the sale, and the title to the road of the vendees. The defendants claimed that the jurisdiction of the court was thereby ended. The court, however, asserted its continued jurisdiction, invoking the general principle under discussion, and holding that it might sometimes award damages when it had obtained jurisdiction on other grounds. "And so, too, it will afford such relief as the altered situation of the parties or of the subject-matter requires, if sufficient remains to warrant equitable interference." §241, (a) This paragraph of the Civ. App. Ill, 49 S. W. 160, or it text is cited in Electric Boat Co. v. may be some purely equitable relief. Lake Torpedo Boat Co., 215 Fed. In Shipman v. Furniss, 69 Ala. 555, 377. 44 Am. Rep. 528, a bill was brought Miscellaneous Instances. — Where a to cancel a deed obtained by fraud proper case is made out for can- as a cloud on title. The court said: cellation of an instrument, full relief "It is true that the jurisdiction of a may be given. United States v. court of equity cannot be invoked Union Pac. R. Co., 160 U. S. 1, 16 when the sole ground of equitable Sup. Ct. 190. This relief may con- interference is a removal of a cloud sist of money damages, as in Pioneer from the title, unless the complain- Sav. & Loan Co. v. Peck, 20 Tex. ant is, at the time, in possession. 385 JURISDICTION EMBRACES WHOLE MATTER. 242 § 242. Effect of the Reformed Procedure on the Doc- trine. — It was a fundamental conception of the equity jurisprudence, from the earliest periods as soon as its juris- But the rule is different when other distinct grounds of jurisdiction are averred." Similarly, when equity takes juris- diction to quiet title it may retain the case for such further relief as may be proper. Slegcl v. Herbine, 148 Pa. St. 236, 15 L. R. A. 547, 23 Atl. 996; Elk Fork Oil & Gas Co. v. Jennings, 84 Fed. 839; Bryan v. Mc- Cann (W. Va.), 47 S. E. 143 (suit to remove cloud on title). See, fur- ther, Brown v. Bonds, 125 Ga. 833, 54 S. E. 933 (suit to cancel deed as cloud on title); Aster v. Uhl, 122 Ky. 114, 87 S. W. 307, 93 S. W. 29 (court having jurisdiction to remove cloud from title, may quiet title against adverse claims, under the statute); Bell v. Dingwell, 91 Neb. 699, 136 N. W. 1128 (plaintiff out of possession may also have accounting as to rents and profits, and parti- tion); Wehrheim v. Smith, 226 111. 346, 80 N. E. 908 (in a suit to quiet title against a judgment lien, equity may revive the judgment on its be- coming dormant during suit, lien- holder not being compelled to resort to law for the purpose). In Hard- ing V. Fuller, 141 111. 308, 30 N. E. 1053, a bill to quiet title was re- tained to put the complainant in possession. Under the Burnt Kocord Act in Illinois it has been held that such a bill may be retained although the right to possession is involved. Gormley v. Clark, 134 U. S. 338, 10 Sup. Ct. 554. In Salem Imp. Co. v. McCourt, 26 Or. 93, 41 Pac. 1105, it was held that a bill to quiet title may be retained for the purpose of determining a boundary, 1—25 The principle applies as well to bills to set aside fraudulent convey- ances, and full relief will be granted. Chrislip v. Teter, 43 W. Va. 356, 27 S. E. 288; Brock v. Berry, 132 Ala. 95, 90 Am. St, Rep. 896, 31 South. 517; Adee v. Hallett, 3 App. Div. 308, 38 N. Y. Supp. 273; Carpenter v. Osborn, 102 N. Y. 552, 7 N, E. 823. In Chase v. Boughton, 93 Mich. 285, 54 N. W. 44, a bill to set aside a forfeiture of a contract was re- tained to award damages. In Vir- den V. Board of Pilot Commission- ers, 8 Del. Ch. 1, 67 Atl. 975, as inci- dent to injunction against a for- feiture the court gave relief against a pecuniary fine. The principle was applied to a proceeding by a holder of warrants to have the funding pf the warrants set aside; the plaintiff was not re- mitted to a separate action at law on the warrants: De Roberts v. Town of Cross, 23 Okl. 888, 101 Pac. 1114. In actions for partition it is some- times held that the court may deter- mine the legal title. Cecil v. Clark, 44 W. Va. 659, 30 S. E. 216; Wilson v. Dresser, 152 111. 387, 38 N. E. 888. But see Kilgore v. Kilgore, 103 Ala. 614, 15 South. 897. In Holloway v. Holloway, 97 Mo. 628, 10 Am. St. Rep. 339, 11 S. W. 233; Herrick v. Lynch, 150 111. 283, 37 N. E. 221, bills for partition were retained for purposes of an account. Bills to enforce or foreclose liens are frequently retained for money judgments. Evans v. Kelly, 49 W. Va. 181, 38 S. E. 497; Fidelity Tr. & G. Co. v. Fowler Water Co., 113 Fed. 560; Albrecht v. C. C. Foster §242 EQUITY JUKISPRUDENCE. 386 difition became established and its peculiar methods be- came developed, that the court of chancery, in any cause coming before it for decision, if the circumstances of the case would permit, and all the parties in interest were or could be brought before it, would strive to determine the entire controversy, to award full and final relief, and thus to do complete justice to all the litigants, whatever might be the amount or nature of their interest in the single pro- ceeding, and thus to bring all possible litigation over the subject-matter within the compass of one judicial deter- Lumber Co., 126 Ind. 318, 26 N. E. 157; Bison v. Moon, 91 Va. 384, 22 S. E'. 165. In Hathaway v. Hagan, 64 Vt. 135, 24 Atl. 131, a bill was brought to foreclose a mortgage. The court found that the notes had been more than paid, and retained jurisdiction to relieve the defendant on a cross-bill. Likewise, the jurisdiction will be retained when a bill is brought to redeem. Schmid t. Lisiewski, 53 N. J. Eq. 670, 31 Atl. 603; Vick v. Beverly, 112 Ala. 458, 21 South. 325; Middle States L., B, & C. Co. v, Hagerstown, M. & U. Co., 82 Md. 506, 33 Atl. 886. A bill to discharge a mortgage was retained to award the surplus due from the mortgagee for rents. Whetstone v. McQueen, 137 Ala. 301, 34 South. 229. In Walters v. Farmers' Bank, 76 Va. 12, it is held that when a suit is brought on a note of a married woman to charge her separate estate, and her indorser is joined as defend- ant, if for any cause developed in the suit recourse against her sepa- rate estate fails, the plaintiff may have relief against the indorser. In Beecher v. Lewis, 84 Va. 630, it was said that the doctrine was expressly applicable where there are accov/nts to be discovered and examined; and that where jurisdiction has once been acquired to settle accounts aris- ing under a trust deed, the court may render a personal decree for the balance due from the debtor beyond the sum realized by the sale under the trust deed. In the following miscellaneous cases the principle is applied: Bank of Stockham v. Alter, 61 Neb. 359, 85 N. W, 300; Kirschbaum v. Coon (Va.), 25 S. E. 658; Hotchkiss v. Fitzgerald P. P. P. Co., 41 W. Va. 357, 23 S. E. 576; Hanly v. Watter- son, 39 W. Va. 214, 19 S. E. 536; Schwab V. Frisco M. & M. Co., 21 Utah, 258, 60 Pac. 940; Swingle v. Brown (Tenn. Ch. App.), 48 S. W. 347; Evins v. Cawthon, 132 Ala. 184, 31 South. 441; Vicksburg & Y. C. Tel. Co. v. Citizens' Tel. Co., 79 Miss. 341, 89 Am. St. Eep. 056, 30 South. 725; Whipple v. Farrar, 3 Mich. 436, 64 Am. Dec. 99; Ecyburn v. Mitchell, 106 Mo. 365, 27 Am. St. Rep. 350, 16 S. W. 592; Vaught v. Meador, 99 Va. 569, 86 Am. St. Rep. 908, 39 S. E. 225; Gleason & Bailey Mfg. Co. v. Hoffman, 168 111. 25, 48 N. E. 143; Pinkum v. City of E'au Claire, 81 Wis. 301, 51 N. W. 550; Balsley v. Balsley, 116 N. C. 472, 21 S. E. 954; Williamson v. Moore, 101 Fed. 322; Olson v. Lamb, 61 Neb. 484, 85 N. W. 387 JURISDICTION EMBRACES WHOLE MATTER. §242 mination.a "We have seen, in the foregoing paragraphs, that this conception of the equity jurisprudence has been steadily applied throughout the whole history of the court to a great variety of circumstances, litigations, and reliefs. By virtue of its operation, and in order to promote justice, the court, having obtained jurisdiction of a controversy for some purpose clearly equitable, has often extended its judi- 397; Cunningham v. City of Cleve- land, 98 Fed. 657, 39 C. C. A. 211; Bath Paper Co. v. Langley, 23 S. C. 129; Watson v. Watson (Tenn. Ch. App.), 57 S. W. 385; Nichol v. Stew- art, 36 Ark. 612; Central Trust Co. V. Wabash, St. L. & P. Ry. Co., 29 Fed. 546; Little Eock etc. R. R. Co. V. Perry, 37 Ark. 164; Buchanan r. Griggs, 20 Neb. 165, 29 N. W. 297; Winton's Appeal, 97 Pa. St. 385; Conger v. Cotton, 37 Ark. 286; Marine etc. Mfg. Co. v. Bradley, 105 U. S. 182; Swift v. Dewey, 20 Neb. 107, 29 N. W. 254; Ober v. Gal- lagher, 93 U. S. 199; Howards v. Selden, 4 Hughes, 310, 5 Fed. 465, 473; City of Centerville v. Fidelity Trust & Guaranty Co., 118 Fed. 332, 55 C. C. A. 348; Barrett v. Twin City Power Co., 118 Fed. 861; Twin City Power Co. v. Barrett, 126 Fed. 302; State V. Fredlock, 52 W. Va. 232, 94 Am, St. Rep. 932, 43 S. E. 153. See, al?o, Farmers' Pawnee Canal Co. v. Henderson, 46 Colo. 37, 102 Pac. 1083 (where court has jurisdiction to de- clare assessment of stock invalid, it may retain jurisdiction to direct transfer on books of corporation) ; Cook V. Warner, 41 Okl. 781, 140 Pac. 424; Templeton v. Bockler, 73 Or. 494, 144 Pac. 405; Hoi den v. Bernstein Mfg. Co., 232 Pa. 366, 81 Atl. 428 (in a suit for account of royalties for the use of patented articles, it is proper to settle the amount of salary and commissions due to plaintiff). In Norton v. Sinkhorn, 61 N. J. Eq. 508, 48 Atl. 822; modified, 63 N. J. Eq. 313, 50 Atl. 506, it was held that a court of equity will not give a decree for unliquidated dam- ages. The court ordered the case re- tained until the damages could be assessed at law. "When a complainant files a bill that properly falls under one or an- other of the heads of ordinary chan- cery jurisdiction, the right of the de- fendant to maintain a cross-bill that is germane to the original bill is not dependent upon the validity of the claim made in the original bill." Biegler v. Merchants' Loan & Tr. Co., 164 HI. 197, 45 N. E. 512. In this case the plaintiff sought to enjoin the collection of notes. The defend- ant set up that he was a fair pur- chaser, and asked judgment for the amount due. This relief was given. See, also, Pratt v. Boody, 55 N. J. Eq. 175, 35 Atl. 1113. In some jurisdictions it is held that a bill will not be retained for complete relief unless the legal re- lief is asked for in the bill. Hawes V. Dobbs, 137 N, Y. 465, 33 N. E. 560; Dinwiddle v. Bell, 95 HI. 360. See, also, Waldron v. Harvey (W. Va.), 46 S. E. 603. § 242, (a) The text is quoted in Paine v. Germantown Trust Co., 136 Fed. 527, 69 C. C. A. 303; Asher v. Uhl, 122 Ky. 114, 87 S. W. 307, 93 S. W. 29. § 242 EQUITY JURISPBUDENCE, 388 cial cognizance over rights, interests, and causes of action which were purely legal in their nature, and has awarded remedies which could have been adequately bestowed by a court of law.^ This same grand principle is one of the fundamental and essential thoughts embodied in the "re- formed system of procedure, ' ' which first appeared in 1848, in the New York Code of Civil Procedure, has since ex- tended through so many states and territories of this coun- try and colonies of Great Britain, and was substantially adopted for England in the ''Supreme Court of Judica- ture Acts." That system of procedure, by combining the actions at law and suits in equity into one "civil action," by permitting the union of legal and equitable primary rights, and interests, and causes of action in the one judi- cial proceeding, and the granting of legal and equitable remedies in the one judgment, and by the substitution of many equity rules concerning the prosecution of suits in place of the arbitrary rules of the law regulating the con- duct of actions, has greatly enlarged the operation and increased the efficiency of the general doctrine under dis- cussion. Wherever the true spirit of the reformed pro- cedure has been accepted and followed, the courts not only permit legal and equitable causes of action to be joined, and legal and equitable remedies to be prayed for and obtained, but will grant purely legal reliefs of possession, compensatory damages, pecuniary recoveries, and the like, in addition to or in place of the specific equitable reliefs demanded in a great variety of cases which would not have come within the scope of the general principle as it was regarded and acted upon by the original equity jurisdic- tion, and in which, therefore, a court of equity would have refrained from exercising such a jurisdiction.^ The full § 242, (b) The text is quoted in under the statute, against adverse Asher v. Uhl, 122 Ky. 114, 87 S. W. claims). 307, 93 S. W. 29 (the court having § 242, (e) Cited in Thomson v. jurisdiction to remove cloud from Locke, 66 Tex. 3S3; Swope v. Mis- plaintiff's title may quiet his title, souri Trust Co., 26 Tex. Civ. App. 389 JURISDICTION EMBRACES WHOLE MATTER. §242 discussion of this great change wrought by the modern legislation is postponed to a subsequent chapter; I shall merely place in the foot-note a few illustrative cases as examples of the manner in which the scope of the equitable jurisdiction has been thus enlarged.^ §242, 1 Laiib v. Buckmiller, 17 N. Y. 620, 626; Lattin v. McCarty, 41 N. Y. 107, 109, 110; Davis v. Lamberton, 56 Barb. 480, 483; Brown v. Brown, 4 Rob. (N. Y.) 688, 700, 701; Welles v. Yates, 44 N. Y. 525; Cone V. Niagara Ins. Co., 60 N. Y. 619, 3 Thomp. & C. 33 ; Anderson v. Hunn, 5 Hun, 79 ; N. Y. Ice Co. v. N. W. Ins. Co., 23 N. Y. 357, 359 ; Cahoon v. Bank of Utica, 7 N. Y. 486; Broiestedt v. South Side R. R., 55 N. Y. 220, 222; Linden v. Hepburn, 3 Sand. 668, 671; Bidwell v. Astor Ins. Co., 16 N. Y. 263, 267; Phillips v. Gorhani, 17 N. Y. 270; Caswell v. West, 3 Thomp. & C. 383 ; Graves v. Spier, 58 Barb. 349, 383, 384 ; Stern- berger v. McGovern, 56 N. Y. 12; Marquat v. Marquat, 12 N. Y. 336; Barlow v. Scott, 24 N. Y. 40, 45; Emery v. Pease, 20 N. Y. 62, 64; Brad- ley v. Aldrich, 40 N. Y. 504, 100 Am. Dec. 528 ; Walker v. Sedgwick, 8 Cal. 398 ; Gray v. Dougherty, 25 Cal. 266 ; Henderson v. Dickey, 50 Mo. 161, 165; Guernsey v. Am. Ins. Co., 17 Minn. 104, 108; Montgomery v. McEwen, 7 Minn. 351 ; Turner v. Pierce, 34 Wis. 658, 665 ; McNeady v. Hyde, 47 Cal. 481, 483 ; Tenney v. State Bank, 20 Wis. 152 ; Leonard v. Logan, 20 Wis. 540, 542; Foster v. Watson, 16 B. Mon. 377, 387; Wliite 133, 62 S. W. 947; McMullen Lum- ber Co. V. Strother, 136 Fed. 295, 69 C. C. A. 433 (having jurisdiction for accounting may grant full re- lief though some of the breaches of contract might be tried at law) ; Louisville & N. R. Co. v. Bitterman, 144 Fed. 34, 75 C. C. A. 192; Sprinkle V. Wellborn, 140 N. C. 163, 111 Am. St. Rep. 827, 3 L. R. A. (N. S.) 174, 52 S. E. 666 (personal judgment against grantee who has conveyed to a io7ia fide purchaser) ; Liverman V. Cahoon, 156 N. C. 187, 72 S. E. 327, dissenting opinion; Pritchard v. Smith, 160 N. C. 79, 75 S. E. 803 (damages where fraudulent grantee has conveyed to bona fide purchaser) ; quoted, Armstrong v. Mayer (Neb.), 95 N. W. 51. See, also, Kayser v. Mongham, 8 Colo. 232, 6 Pac. 803; Danielson v. Gude, 11 Colo. 87, 17 Pac. 283; Bullion, B. & C. Min. Co. V. Eureka Hill Min. Co., 5 Utah, 3, 11 Pac. 515; Giant Powder Co. v. San Diego Flume Co., 78 Cal. 193, 20 Pac. 419; Murtha v. Curley, 90 N. Y. 373; Larrabee v. Given (Neb.), 91 N. W. 504; Evans v. McConnell (Iowa), 63 N. W. 570; Disher v. Disher, 45 Neb. 100, 63 N. W. 368; Green Bay Lumber Co. v. Miller (Iowa), 62 N. W. 742; Turner v. Newman (Ky.), 39 S. W. 504; Val- entine V. Eichards, 126 N. Y. 272, 27 N. E. 255; Hull v. Bell, 54 Ohio, 228, 43 N. E. 584; Hanna v. Reeves, 22 Wash. 6, 60 Pac. 62; Field v. Holz- man, 93 Ind. 205; Watson v. Sutro, S6 Cal. 500, 24 Pac. 172, 25 Pac. 64; McLennan v. Church, 163 Wis. 411, 158 N. W. 73. EQUITY JURISPRUDENCE. 390 V. Lyons, 42 Cal. 279, 282. The decisions, however, are not entirely unanimous. In some cases the court has not only refused to accept and act upon the spirit of the reformed procedure, but has even, as it would seem, failed to recognize the principle which belonged to the original jurisdiction of equity, the principle that, having obtained a jurisdiction for any purpose, the court might and should give full relief and do com- plete justice. See Hudson v. Caryl, 44 N. Y. 553 ; Supervisors v. Decker, 30 Wis. 624, 626-630 ; Noonan v. Orton, 21 Wis. 283 ; Horn v. Ludding- ton, 32 Wis. 73 ; Dickson v. Cole, 34 Wis. 621, 625 ; Turner v. Pierce, 34 Wis. 658, 665; Deery v. McClintock, 31 Wis. 195; Lawe v. Hyde, 39 Wis. 345; Cord v. Lackland, 43 Mo. 139; Bobb v. Woodward, 42 Mo. 482; Peyton v. Rose, 41 Mo. 257, and other similar cases in Missouri, whick were all, however, overruled in the later case of Henderson v. Dickey, 50 Mo. 161, 165, in which the court adopted and acted upon the true spirit and intent of the reformed procedure. 391 TO PREVENT A MULTIPLICITY OF SUITS. § 243 SECTION IV. THE DOCTRINE THAT JURISDICTION EXISTS IN ORDER TO PREVENT A MULTIPLICITY OF SUITS. ANALYSIS. § 243. The doctrine applies to both kinds of jurisdiction. § 244. The questions to be examined stated. § 245. Four possible classes of cases to which the doctrine may apply. §§ 246-248. "Bills of peace," rationale of, and examples. § 248. Bills "to quiet title" explained. §§ 249-251. Rationale of the doctrine examined on principle. [§2511/^. Jurisdiction not exercised when that would be ineffectual; sim- plifying of the issues essential. S 261%. There must be a practical necessity for the exercise of the juris- diction.] §§ 252-261. Examination of the doctrine upon judicial authority. § 252. First class. §§ 253, 254. Second class. §§ 255-261. Third and fourth classes. §256. Community of interest: "Fisheries 'Case"; "Case of the Duties." § 257. Where proprietors of distinct tracts of land have been injured by one wrong. § 258. "Where proprietors of distinct tracts of land have been relieved from illegal local assessments. §§259,260. General rule as to relief from illegal taxes, assessments, and public burdens, on the ground of multiplicity of suits, § 261. Other special cases of the third and fourth classes. §§ 262-266. Examination of opposing decisions; conclusions reached by such decisions. § 263. In the first and second classes. §§ 264-266. In the third and fourth classes. §§265,266. In cases of illegal taxes and other public burdens. §§ 267-270. Conclusions derived from the entire discussion. §§ 268-270. Ditto as to the third and fourth classes. §§ 271-274. Enumeration of cases in which the jurisdiction to avoid a multi- plicity of suits has been exercised. § 271, Cases of the first class. § 272. Cases of the second class. § 273. Cases of the third class. § 274. Cases of the fourth class. § 275. The jurisdiction based upon statute. §243.a Applies to Both Kinds of Jurisdiction.— The doctrine that a court of equity may take cognizance of a §243, (a) This section is cited in Clunie, 88 Fed. 160, 167; Pretopa v. Liverpool & L. & G. Ins. Co. v. Maxwell Land Grant Co. (C. C. A.), §2-13 EQUITY JURISPRUDENCE. 392 controversy, dotermine the rights of all the parties, and grant the relief requisite to meet the ends of justice, in order to prevent a multiplicity of suits, has already been briefly mentioned in a preceding section upon the "concur- rent jurisdiction." The same remarks which were made at the commencement of the last section concerning the general principle that when a court of equity has acquired jurisdiction over part of a matter, or over a matter for some particular purpose, it may go on and determine the whole controversy and confer complete relief, apply with equal truth and force to the doctrine now under considera- tion, and need not therefore be repeated.^ Like that gen- § 243, 1 See ante, § 181. 50 Fed. 674; Kellogg v. Chenango Valley Sav. Bk., 42 N. Y. Supp. 379, 11 App. Div. 458; Golden v. Health Department, 47 N. Y. Supp. 623, 21 App. Div. 420; State v. Sunapee Dam Co. (jST. H.), 55 Atl. 899; Dennrs r. Mobile & Montgomery R'y Co., 137 Ala. 649, 657, 97 Am. St. Rep. 69, 72, 35 South. 30; and in City of St. Mary's v. Hope Natural Gas Co., 71 W. Va. 76, 43 L. R. A. (N. S.) 994, 76 S. E. 841. The chapter is cited gener- ally in Hale v. Allinson, 188 U. S. 56, 23 Sup. Ct. 244, a case recognizing but distinguishing the author's "fourth class"; Pollock v. Okolona Sav. Inst., 61 Miss. 293, a case recognizing the author's "fourth class"; Van Auken V. Dammeier, 27 Or. 150, 40 Pac. 89, recognizing but distinguishing the "third class"; Hughes v. Hannah, 39 Fla. 356, 379, 22 South, 613; Wad- dingham v. Eobledo, 6 N. M. 347, 28 Pac. 663; Bradley v. Bradley, 165 N. Y. 183, 58 N. E'. 887; McCon- naughy v. Pennoyer, 43 Fed. 342; Muncie Nat. Gas Co. v. City of Muncie, 160 Ind. 97, 66 N. E. 436; Turner v. City of Mobile, 135 Ala. 73, 33 South. 133, 140; and in Steger & Sons Piano Mfg. Co. ▼. MacMaster, 51 Tex. Civ. App. 527, 113 S. W. 337 (affirmed by supreme court of Texas); Simpson v. McGuirk (Tex. Civ. App.), 194 S. W. 979; Illinois Central R. Co. v. Baker, 155 Ky. 512, 49 L. E. A. (N. S.) 496, 159 S. W. 1169. The proofs of this chapter, in the third edition, were read by the late Professor James Barr Ames, Dean of the Harvard Law School, who wrote to the editor expressing his entire agreement with both the text and the editorial notes. As Profes- sor Ames was, beyond question, the profoundest student of Equity in the generation succeeding the author, it is a great satisfaction to be able to cite his authority in support of the author's conclusions. It is a further satisfaction to find that the cases which have subjected those conclu- sions to hostile criticism, within the last thirteen years, were, without ex- ception, cases which, on their facts, fell within the limitations of the doctrine as explained in §§ 250, 251, 251%, and 251%; and which, there- fore, were not, on any theory, proper 393 TO PREVENT A MULTIPLICITY OF SUITS. § 244 €ral principle, the ** prevention of a multiplicity of suits" produces a material effect upon both the concurrent and the exclusive jurisdictions.^ It is sometimes one of the very foundations of the concurrent jurisdiction, — an effi- cient cause of its existence. In fact, the ''multiplicity of suits" which is to be prevented constitutes the very inade- quacy of legal methods and remedies which calls the con- current jurisdiction into being under such circumstances, and authorizes it to adjudicate upon purely legal rights, and confer purely legal reliefs.*^ On the other hand, the prevention of a multiplicity of suits is the occasion for the exercise of the exclusive jurisdiction. The multiplicity of suits to be avoided, which are generally actions at law,st, note (f). While fully 90 Atl. 943; Southern Steel Co. v. recognizing the principle of jurisdic- Hopkins, 174 Ala. 465, Ann. Cas. tion contended for by the author, 1914B, 692, 40 L. R. A. (N. S.) 464, Mr. .Justice Peckham observes: "To 57 South. 11; and cited in Watson say whether a particular case comes v. Huntington, 215 Fed. 472, 131 within the principle is sometimes a C. C. A. 520; Vandalia Coal Co. v. much more difficult task. Each case, Lawson, 43 Ind. App. 226, 87 N. E. if not brought directly within the 2511/2 EQUITY JUEISPBUDENCB. 410 or upon the separate and distinct claim of one plaintiff, in cases resembling those of the third class. In refusing to entertain these spurious ''bills of peace," courts of equity impose no real limitation upon their jurisdiction, which, by its very definition, exists not because of multiplicity of suits, but to avoid them, when their rules of procedure can avail to that purpose; indeed, they merely apply to bills of this character the ordinary rules of equity pleading relating to multifariousness.^ principle of some preceding case, must, as we think, be decided upon its own merits and upon a survey of the real and substantial convenience of all parties, the adequacy of the legal remedy, the situations of the different parties, the points to be contested, and the result which would follow if jurisdiction should be as- sumed or denied; these various mat- ters being factors to be taken into consideration upon the question of equitable jurisdiction on this ground, and whether within reasonable and fair grounds the suit is calculated to be in truth one which will prac- tically prevent a multiplicity of liti- gation, and will be an actual con- venience to all parties, and will not unreasonably overlook or obstruct the material interests of any. The single fact that a multiplicity of suits may be prevented by this as- sumption of jurisdiction is not in all cases enough to sustain it. It might be that the exercise of equi- table jurisdiction on this ground, while preventing a formal multipli- city of suits, would nevertheless be attended with more and deeper in- convenience to the defendants than would be compensated for by the convenience of a single plaintiff; and where the case is not covered by any controlling precedent the in- convenience might constitute good ground for denying jurisdiction. . . . Is there, upon the complainant's theory of this case, any such com- mon interest among these defend- ants as to the questions of fact tliat may be put in issue between them and the plaintiff? Each defendant's defense may, and in all probability will, depend upon totally different facts, upon distinct and particular contracts, made at different times, and in establishing a defense, even of like character, different witnesses would probably be required for each defendant, and no defendant has any interest with another." In Boon- ville Nat. Bank v. Blakey, 166 Ind. 427, 76 N. E. 529, the court, quoting this section of the text, says: "To justify the interposition of a court of chancery on the ground that a multiplicity of actions at law will be avoided, the court ought to be able to perceive from the issues tendered and the other averments in aid of the jurisdiction that the bill, if en- tertained, will not be multifarious, that the questions involved are of such a nature that a multiplicity of actions will in fact be avoided, and that the avoidance of such actions will promote justice." §2511/2, (b) Lehigh Valley E. R. Co. V. McFarlan, 31 N. J. Eq. 730, 759, 1 Keener's Cas. Eq. Jur. 133. "In this respect there is no differ- 411 TO PREVENT A MULTIPLICITY OF SUITS. § 2511/^ The following cases may serve to illustrate under what circumstances the court will decline to exercise its juris- diction because it would prove ineffective to avoid a mul- tiplicity of suits. (1) Cases where the plaintiff's were numerous and sought to join. The plaintiffs, twelve in number, had by one contract assigned to the defendants their interests in an option for the purchase of a mine, in consideration of the defendants' promise to refund to each the amount previously advanced by him for the purposa of developing the mine. The plaintiffs joined in one suit to recover these separate amounts. Obviously, the case was not one of equitable cognizance, since the issues be- tween each plaintiff and the defendants were, though simi- lar, entirely distinct and, save as they grew out of the same transaction, unconnected.^ Several complainants, owners ence between such bills [i. e., those in causes of purely equitable cogni- zance'] and bills of peace. A bill of peace which shall draw within equi- table cognizance causes of action which are purely legal in their char- acter, must conform to the rules and principles of ordinary equity plead- ing. ... In such cases there must be such a unity of interest on the one side or the other, as would jus- tify a joinder of the parties in causes of purely equitable cogni- zance." The very common misconception of the objects that may be attained by a "bill of peace," to the correc- tion of which the present § 2511/4 is addressed, appears to be nearly as ancient as the jurisdiction itself; as witness the amusing instance re- corded in 2 Ames Cas. Eq. Jur,, p. 88, note. "In a note to Best v. Drake, 11 Hare, 371, the reporter reproduces the following extraor- dinary bill of peace, in the time of Lord Nottingham, given in the Diary of Narcissus Luttrell: 'A bill in Chancery was this term preferred by a widow against 500 persons, to an- swear what moneys they ow'd her husband; the bill was above 3000 sheets of paper, to the wonder of most people; but the Lord Chan- cellor looking on it as vexatious, for it would cost each Defendant a 1001. the copyeing out, he dismissed the bill, and ordered Mr. Newman, the councellour, whose hand was to it, to pay the Defendants the charges they have been att.' " §2511/2, (c) Van Auken v. Dam- meier, 27 Or. 150, 40 Pac. 89. Bean, C. J., recognizing the principles laid down in the present chapter, says, in part: "The rights of the plaintiffs, as against the defendants, are purely legal, and wholly separate and dis- tinct. There is no community of interest among them either in the subject-matter of the suit, or in the relief sought. . . . Where the rights of the several plaintiffs are purely legal, and in themselves perfectly distinct, so that each party's case depends upon its own peculiar cir- § 2511/2 EQUITY JURISPRUDENCE. 412 of property of the same character, which they asserted to be not subject to assessment for taxes, joined in a suit to enjoin the collection of taxes levied thereon, claiming as the ground of jurisdiction the avoidance of a multiplicity of suits. There was no complaint that the tax as a whole was not legal, and the complainants did not sue as repre- sentatives of all the property-owners of the community.** **A, upon being sued in ejectment for a parcel of land to cumstances, and the relief demanded is a separate money judgment in favor of each plaintiff and against the defendant, there is no 'practical necessity' for the interposition of a court of equity, and we can find no authority for holding that it will assume jurisdiction simply because the parties are numerous." Indeed, cases of classes third and fourth where the jurisdiction can be suc- cessfully invoked for purely pecuni- ary relief, while not unknown (see post, § 261, note (b) "Class Third," (I) (f); "Class Fourth," (I) (h)), are necessarily rare. It has even been held that plaintiffs who may join to restrain a nuisance common to them all cannot in the same suit recover damages for their respec- tive injuries. Barham v. Hostet- ter, 67 Cal. 272, 7 Pac. 689; Fore- man V. Boyle, 88 Cal. 290, 26 Pac. 94; Geurkink v. Pctaluma, 112 Cal. 306, 44 Pac. 570; Younkin v. Mil- waukee Co., 112 Wis. 15, 87 N. W. 861; Nahte v. Hansen, 106 Minn. 365, 119 N. W. 55; Norton v. Colusa P. M. & S. Co., 167 Fed. 202. (Query, why is this not an instance for the application of the familiar principle that in case of injunction against a private nuisance the cause may be retained for the purpose of award- ing damages? See ante, % 237. The rule against multifariousness surely does not require that all the parties should be interested in all the mat- ters set forth in the bill. In State V. Sunapee Dam Co. (N. H.), 55 Atl. 899, a case of this character, the court was evenly divided on the question of jurisdiction to award damages to the numerous plaintiffs in lieu of injunction, but the juris- diction to award them in addition to equitable relief appears to have been unquestioned). Further instances of attempted joinder of causes of action for pe- cuniary relief: Parties complaining of breaches of separate guaranties on separate sales of fertilizers by defendant, at different times, and claiming varying amounts of dam- ages, joined in a bill to avoid mul- tiplicity of suits; the bill was dis- missed: Newton Oil & Mfg. Co. v. Sessum, 102 Miss. 181, 59 South. 9. Numerous creditors cannot join as plaintiffs in a suit in equity against stockholders on their statutory lia- bility to recover on their several claims; each claim stands on its own merits and against each of them the defendants are entitled to make a separate defense: Miller v. Willett, 71 N. J. Eq. 741, 65 Atl. 981, affirm- ing 70 N. J. Eq. 396, 62 Atl. 178. §251V2, (d) Schulenberg-Boeckeler Lumber Co. v. Town of Hayward, 20 Fed. 422, 424. "Each complainant must make his own ease upon the facts. One might succeed and an- 413 TO PEEVENT A MULTIPLICITY OF SUITS. § 2511/2 which he claims to have the legal title, or which he claims the legal right to hold against the plaintiff," cannot "main- tain a bill to enjoin the action at law, and have his legal title or defense adjudged and his possession conserved thereunder, solely upon the ground that B, C, D, E, and F, are also being sued by the same plaintiff for other and dis- tinct parcels of land which the plaintiff claims under the same chain of title that he relies on against A. " « ether fail. I know of no case, and hare been referred to none, in which persons so severally interested have been permitted to join in either a legal or equitable suit, and to allow it would be to confound the estab- lished order of judicial proceeding, and lead to interminable confusion and embarrassment." Plaintiifs jointly complaining of a void ordinance must be affected in the same way. The ordinance in question contained many detailed provisions concerning the licensing of the sale of "soft drinks." The different plaintiffs were affected by various parts of the ordinance. There was no community of interest in the questions involved: Kearney V. City of Canton, 273 111. 507, 113 N. E. 98. § 2511/2, (e) Turner v. City of Mo- bile, 135 Ala. 73, 33 South. 133, 141- 143. McClellan, C. J., carefully analyzes the author's definition of the "third class" in § 245, and his groups of cases illustrating that class in § 273, and shows that the case in hand falls neither within any of these groups nor within the prin- ciple underlying them. "The com- munity idea, so to speak, in each of tliem, lies in two facts, which are absent in the case before us. In the first place, the wrong done to the 'numerous persons' of the text is one and the same wrong against them all, affecting each precisely alike. Here, assuming that the in- stitution of an action of ejectment to which a defense is developed is a wrong, and that it is a wrong to bring thirty or more such actions, there can be no pretense that the institution of thirty or more sepa- rate suits against thirty or more separate parties for thirty or more distinct lots of land is one wrong, or that the institution of the one suit sought here to be enjoined was a wrong against and common to each and all the defendants, in the twenty-nine or more separate and distinct actions. In the next place, in each of the cases put in the last four clauses of the section [§ 273, post], a decree in favor of one or more of the parties against all [of] whom the one wrong was committed and all [of] whom it injures in the same way would necessarily and di- rectly inure to the benefit of all said persons. Thus, a decree at the suit of A canceling a conveyance as a fraud on creditors as effectually re- moves and destroys the conveyance as an impediment in the way of cred- itors B, C, and D as if they had been parties complainant with A in the bill. ... Of course, in such cases all may join in a bill, or one may exhibit it on behalf of himself and the others or on his own behalf alone, for that in either case the re- EQUITY JURISPRUDENCE. 414 § 25iy2 (2) Cases ivliere the plaintiff sought to join numerous defendants. A bill was filed to collect the amounts pre- viously assessed against the stockholders of a corporation suit to them all is the same — relief to all of them from the consequences of the wrong that was done to all of them. But not so in the case here. To enjoin the city of Mobile to pros- ecute its action against A would not be to enjoin it to prosecute its other and distinct several actions against twenty-nine or more other persons who are not parties to the suit, and might never be, even if the suit is allowed to continue, and in whose favor no relief whatever has been or could be prayed by A. ... A de- cree for these complainants would not bind either the plaintiff or the defendant in any of the other suits. It would not put an end to any one of them, nor prevent the city of Mobile instituting any number of other like suits, and having a sepa- rate trial in each. The decree, in short, would not prevent the rmdti- plicity of suits alleged to be pending or imminent." McClellan, C. J., dis- tinguished the often cited decision of Mr. Justice Harlan, in Osborne v. Railroad Co., 43 Fed. 824 (for which see post, at beginning of editor's note to § 261), a very similar case, on the grounds that there "all the ejectment defendants in whose be- half relief was sought were actual complainants in the bill," and "the legal title of each of the complain- ants had, in effect, been adjudged and settled at law." (The latter statement, however, appears to have been true of only a portion of the complainants in the Osborne case.) The decision of this able court is plainly correct, and not at variance with any proposition advanced by the author. When the jurisdiction, is invoked because of separate wrongs, each involving the samS question of law and fact, it is plain that the individuals severally af- fected must usually be made parties to the bill, in order that the relief awarded may be effectual to prevent a multiplicity of suits. The court appears to have gone too far, how- ever, if it attempts to assert, as a test of the jurisdiction in "class third," the existence of a single wrong, having a common effect upon the numerous persons, and capable of being remedied, as to its effect upon them all, by the surTof a sin- gle plaintiff in his own behalf alone. While in cases where the wrongs are separate, though similar, there is great danger that the joint suit of the persons severally injured may fall within the condemnation of the principle explained in this section, viz., that the issues as to each plain- tiff will remain as separate in the / single equity suit as in the numerous legal actions — yet the instances are numerous where such suits have been successful; see post, § 261, first part of editor's note, for illustrations; also § 269, and note 1. In Sullivan Timber Co. v. City of Mobile, 110 Fed. 186, which was apparently a part of the same liti- gation, the court likewise refused to sustain jurisdiction because it did not appear that the issues between the defendant and each of the plain- tiffs depended upon the same ques- tions of law or fact. Suit to enjoin distinct causes of action for damages against complain- 415 TO PBEVENT A MULTIPLICITY OP SUITS. § 251 V2 under a statute niaking them severally and individually liable for its debts to an amount equal to the value of their respective shares. While an inquiry to determine how large the assessment should be should properly be made ants arising from a single contract: Crawford v. Bosworth, 72 W. Va. 543, 78 S. E. 623. See, also, the following cases, where each of the complainants might have been entitled to equi- table relief, but their joinder was held improper. Purchasers of dis- tinct parcels of land, by separate contracts, made at different times, cannot join in a suit against their common vendor to compel convey- ance (Winslow v. Jenness, 64 Mich. 84, 30 N. W. 905) or reformation (Hendriekson v. Wallace, 31 N. J. Eq. 604). Neither plaintiff has the slightest interest in, or connection with, the contract of the other. "The only respect in which it can be said that they have the same interest is, that their positions are similar. They each happen to have a right of action against the same person, for causes almost identical in their facts." Attempted joinder of separate suits for specific performance. Fourteen separate owners of land, each having a separate written con- tract with a water company to fur- nish each all the water necessary to irrigate his land, cannot join as plaintiffs, as the question in each suit is the amount of water which the defendant is required to deliver to each plaintiff: Creer v. Bancroft Land & Irr. Co., 13 Idaho, 407, 90 Pac. 228. In Eipinsky v. Hinchman, 181 Fed. 786, 105 C. C. A. 462, plain- tiffs claiming parcels of land each under a different chain of title joined in a suit to remove the cloud of defendant's claim to ownership under a homestead survey; held, a misjoinder. In Demarest v. Hard- man, 34 N. J. Eq. 472, it was held that several persons owning distinct parcels of land, or occupying differ- ent dwellings, and having no com- mon interest, cannot join in an action to restrain a nuisance caused by the vibration of machinery in defend- ant's building, in consequence of the special injury to the particular prop- erty of each. The case seems a somewhat extreme application of the rule. For an admirable illustration, see Marselis v. Morris Canal Co., 1 N. J. Eq. 31, post, note to § 264, and the author's explanations and comments (distinct but similar tres- passes by the same defendant). The question may also arise, whether a single plaintiff suing in behalf of a class so represents the class that he may pray for relief in behalf of all persons that constitute it. Thus, in a case where an im- porter of liquors sued to enjoin their seizure by state officials under color of an unconstitutional statute, it was held that he could not obtain relief in behalf of all other citizens of the state who were importers of liquors. "It is, indeed, possible that there may be others in like case with the plaintiff, and that such persons may be numerous, but such a state of facts is too conjectural to furnish a safe basis upon which a court of equity ought to grant an injunction." Scott V. Donald, 165 U. S. 107, 17 Sup. Ct. 262. Compare § 256, note (e), post. § 2511/2 EQUITY JURISPBUDENCB. 416 in equity, "after the rate of assessment has been fixed, and the individual liability of each stockholder has thus been ascertained, the enforcement of such liability is the proper subject of a suit at law, in which the separate rights of the defendant stockholders are distinctively to be considered."* §251V2, (f) Tompkins v. Craig, 93 Fed. 885, 2 Ames Cas. Eq. Jur. 87, by McPherson, D. J. "The liability is legal, and not equitable. It is based upon the stockholder's con- tract of subscription, an implied term of that contract being the dec- laration of the statute that a certain contingent liability should follow the subscription. Each contract is a separate obligation, and should be separately enforced. It is plain, also, that each defendant may desire to set up a different defense. One stockholder may have paid his as- sessment in whole or in part; an- other may seek to raise the question whether the Iowa court had juris- diction to make the levy; a third may wish to attack the amount of the assessment; another may aver that his subscription was void from the beginning; and still other de- fenses, which need not be specified, are readily conceivable. We say nothing about the validity of these defenses. Some of them may not be available, and others may not be successful, but each defendant has the right to make whatever objec- tion he may see fit to raise, in order that it may be passed upon by the court. If the defendants are numer- ous, as they are in the pending suit, it would be almost, perhaps wholly, impossible to apportion fairly the costs of hearing and of determining many unrelated issues." See, also, the opinion of the same judge in the similar case of Hale v. Allinson, 102 Fed. 790; affirmed and opinion adopted, 106 Fed. 258 (C. C. A.). Quoting the text, §§ 251, 269, and 274, he says in part: "The receiver's cause of action against each defend- ant is, no doubt, similar to his cause of action against every other, but this is only part of the matter. The real issue, the actual dispute, can only be known after each defendant has set up his defense, and defenses may vary so widely that no two controversies may be exactly or even nearly alike. If, as is sure to hap- pen, differing defenses are put in by different defendants, the bill evi- dently becomes a single proceeding only in name. In reality it is a con- geries of suits with little relation to each other, except that there is a common plaintiff, who has similar claims against many persons." The decision in Hale v, Allinson was affirmed by the Supreme Court (Hale V. Allinson, 188 U. S. 56, 23 Sup. Ct. 244), and the language of McPher- son, D. J., adopted by the court as expressing its own views. For a portion of the opinion of Peckham, J., see ante, note (a). See, further, Adams v. Coon, 109 U. S. 380, 3 Sup. Ct. 263; O'Brien v. Fitzgerald, 143 N. Y. 377, 38 N. K 371; Marsh v. Kaye, 168 N. Y. 196, 61 N. E. 177, 2 Ames Cas. Eq. .Jur. 89. Com- pare Bailey v. Tillinghast, 99 Fed. 801, 806, 807 (C. C. A.), post, note to § 261, Fourth Class, (I), (h), where a common question existed be- tween the receiver and each share- holder; also. Brown v. Allebach, 156 Fed. 697. In New York Life Ins. 417 TO PEEVE NT A MULTIPLICITY OF SUITS. § 2511/2 A bill was brought to cancel numerous notes held by several defendants, all purporting to have been made by the com- plainant, and claimed by him to be forgeries. The court, while recognizing the jurisdiction in cases of the "fourth class," says: "It is not enough that the grounds of the invalidity of the several instruments are, as in this case, similar. So far as the instruments sought to bo can(M'l(*d here, as forged, are concerned, the forgeries are several. The ground of the invalidity of these notes is not a common one within the sense of the cases cited. The character of one of these notes, as to its being forged, has no bearing as to the others. The questions touching the validity of these notes are as several as the holdings. There is, in other words, a multiplicity of issues of facts to be tried, which the jurisdiction invoked cannot avoid or lessen, "s Co. V. Beard, 80 Fed. 66, the statu- tory liability of numerous stock- holders was enforced in a single suit, although there appears to have been no such common question; but in this case equity already had jurisdiction to compel payment of unpaid sub- scriptions, and properly retained ju- risdiction for complete relief against each defendant. Further instances of pecuniary re- lief against numerous defendants refused: Bill to enforce the sepa- rate liabilities of members of an in- solvent insurance association, there being no common question; Burke V. Scheer, 89 Neb. 80, 33 L. R. A. (N. S.) 1057, 130 N. W. 962. The supreme court of Massachusetts, in Rogers v. Boston Club, 205 Mass. 261, 28 L. R. A. (K S.) 743, 91 N. E. 321. while recognizing as settled the gen- eral principle laid down by the author in § 269, post, refused to en- tertain a bill by the receiver of a social club against its members to recover the annual dues of each; 1—27 though there was a question in which they all had a common interest, — viz., whether there was a certain by-law and liability of members under it, — there were other questions which pertained to each individual defendant, depending on the date of his membership, etc. §2511/2, (g) Scott V. McFarland, 70 Fed. 280, by Bellinger, D. J. Bill to set aside separate fraudu- lent preferences: "In the nature of things the questions which would be common to all of the defendants in such a suit as this would be likely to be the subsidiary questions, while the questions as to whether each of the appellants had reasonable cause to believe that a preference was in- tended would be likely to be the important questions, and it would also be probable that the inquiries concerning them would prove widely divergent": Boonville Nat. Bank v. Blakey, 166 Ind. 427, 76 N. E. 529, 533. § 2511/2 EQUITY JURISPRUDENCE. 418 A party owning and maintaining a dam across a river, under a claim of right so to do, cannot maintain an action in the nature of a bill of peace against two groups of par- ties, who have brought separate actions against him to recover damages for alleged torts claimed to have been done to them by reason of the dam; one group claiming to be injured by back-water resulting from the maintenance of the dam at an unlawful height; the other claiming to be injured by the diversion of the water. "The causes from which the injuries to the parties respectively re- sulted, instead of being coincident, are divergent."^ Per- §2511/2, (h) Lehigh Valley E. R. Co. V. McFarlan, 30 N. J. Eq. 135, 2 Ames Gas. Eq. Jur, 85, 31 N. J. Eq. 730, 754, 759-761, 1 Keener Cas. Eq. Jur. 133, citing and commenting on Sheffield Water Works v. Yeo- mans, L. R. 2 Ch. App. 8; New York & N. H. R. R. Co. V. Schuyler, 17 N. Y. 592; Fellows v. Fellows, 4 Cow. 682, 15 Am. Dec. 412; Bouverie v. Prentice, 1 Bro. C. C. 200; Dilly v. Doig, 2 Ves. 486; Rayner v. Julian, 2 Dick. 677; Whaley v. Dawson, 2 Schoales & L. 367, and many other cases. See quotation from the opin- ion of Depue, J., ante, note (b). "To justify a bill of peace, therefore, there must be in dispute a general right in the complainant, in which the defendants are interested, of such a character that its existence may be finally determined in a single issue. It is not indispensable that the de- fendants should have a co-extensive common interest in the right in dis- pute, or that each should have ac- quired his interest in the same man- ner, or at the same time, but there must be a general right in the complainant, in which the defend- ants have a common interest, which may be established against all who controvert it, by a single issue." Further instances of attempted injunction of separate actions at law f6r damages against the single com- plainant: Actions for damages for alleged nuisance committed by com- plainant: Roanoke Guano Co. v. Saunders, 173 Ala. 347, 35 L. R. A. (N. S.) 491, 56 South. 198 (nuisance from noxious smoke; complainant seeks to have damages of the sev- eral defendants assessed in equity) ; Hamilton v. Alabama Power Co., 195 Ala. 438, 70 South. 737 (actions for alleged nuisances resulting from building of dam might involve dif- ferent issues, some being grounded on negligence, some on the theory that the injuries were the natural result of the construction of the dam, etc.) ; Mayor & Common Coun- cil of Newark v. National Silk Dye- ing Co., 83 N. J. Eq. 470, 91 Atl. 877 (actions for damages by twelve mill owners for wrongful abstraction of water). Actions for damages by twelve different persons for services rendered: Central Iron & Coal Co. V. Ballard, 177 Ala. 664, 59 South. 47. Actions for negligent handling of cotton, replevin, etc.; Gulf Com- press Co. V. Wooten Cotton Co., 98 Miss. 651, 54 South. 86. Four per- sons brought tort actions against 419 TO PKEVENT A MULTIPLICITY OF SUITS. § 2511/2 sons whose alleged interests in lands advertised for sale by an administrator are antagonistic, and who file separate and independent claims thereto, cannot be properly joined as co-defendants to an equitable petition brought by the administrator, praying that the prosecution of the claims be enjoined, and that the conflicting claims of title be ad- judicated and settled by the judgment to be rendered upon such petition.^ A bill alleged that the complainant's agent. plaintiff company for the removal of their telephones by plaintiff. Each claimed to be a subscriber to a local telephone which the plaintiff had bought out. What common defense, if any, the plaintiff had, does not appear: Cumberland Tel. & Tel. Co. V. Williamson, 101 Miss. 1, 57 South. 559. Entirely different causes of action in favor of various parties concerned in a collision at the cross- ing of two railroads: Gulf & S. I. R. Co. V. Barnes, 94 Miss. 484, 48 South. 823 (instructive opinion by Whit- field, C. J., relying on § 250 of the text). Actions for damages for an alleged nuisance committed by com- plainant brought by persons claim- ing to have been injured in different ways, sought to be consolidated and tried as one suit in the chancery court: Gulf & Ship Island R. Co. v. Walker, 103 Miss. 836, 60 South. 1014. Actions for damages by nu- merous persons injured by a mine explosion sought to be consolidated: Vandalia Coal Co. v. Lawson, 43 Ind. App. 226, 87 N. K 47. In the last case the court says: "Should the court take jurisdiction of this case in equity and the issues tried out therein, it would be necessary to submit the questions of fact — the amount of damages done the several injured persons, etc. — to a jury. The possibility that the jury might eonfuse the evidence relating to so many separate parties is strong. Great difficulty might arise in ad- justing the rights of all parties in one decree, and justice would be more likely obtained by separate trials." Southern Steel Co. v. Hop- kins, 174 Ala. 465, Ann. Cas. 1914B, 692, 40 L. R. A. (N. S.) 464, 57 South. 11 (facts similar to last case: See end of opinion). For further instances of attempted consolidation in one suit in equity of suits for damages to which there was no common defense, see ante, § 250, note (b). §2511/2, (i) Webb v. Parks, 110 Ga. 639, 36 S. E. 70. Lumpkin, P. J., after distinguishing the case of Smith v. Dobbins, 87 Ga. 303, 13 S. E. 496, which well illustrates the author's "fourth class," continues, in the picturesque language character- istic of his court: "When, however, a number of persons are at variance among themselves as to their alleged rights with respect to particular property, each claiming antagonis- tically to all the others, and there is no 'community of interest among them in the questions of law and fact involved in the general contro- versy, or in the kind and form of relief which they, respectively, and each, for himself, demand,' equity will not compel them to consolidate and engage in a pellmell struggle. In other words, if we may borrow §2511/2 EQUITY JURISPEUDENCB. 420 without authority, made sales of complainant's crops, and used their proceeds, and that he wrongfully appropriated to his use moneys supplied to him as such agent, and joined with the agent as defendants the persons to whom he had so disposed of the property, alleging its conversion by them, and that to sue them all would require a great multi- plicity of suits. The matters relied on for relief against these defendants, therefore, depended on unconnected tor- tious acts.J a warlike illustration, it would not be just or fair to constrain soldiers at enmity with each other to fight side by side against a common foe, nor to allow the latter the advantage of having the attention of the ad' versaries diverted from attacks they might successfully make upon him by pressing distractions and causes of quarrel among themselves." See, also, to the same effect, Portwood v. Huntress, 113 Ga. 815, 39 S. E. 299. §251V2, (j) Jones v. Hardy, 127 Ala. 221, 28 South. 564, 2 Ames Gas. Eq. Jur. 91. "To settle several con- troversies in a single suit, and there- by prevent a multiplication of suits, equity will assume jurisdiction un- der a variety of circumstances, but it will never interfere to forestall legal remedies when the causes of suit are entirely separate and dis- tinct from each other and depend for their adjustment on no common or connected right, relation or ne- cessity. When the jurisdiction is invoked by a single complainant against several to whom his interest is separately opposed, he must show that the interests of the defendants are related to each other as being connected with, or convergent in, the property right or question involved in the suit. Pom. Eq. Jur., § 274." See, also, the somewhat similar case, Hamner v. Garrett (Tex. Civ. App.), 133 S. W. 1058 (A, owner of land, arranged with B to sell it in lots at not less than specified prices; B effected a number of contracts of sale with third persons; A claimed that B did not carry out his agree- ment and brought this suit to re- strain suits by B and his vendees to compel A to convey). For further illustrations, see Scott V. Erie R. R. Co., 34 N. J. Eq. 354; Buffalo Chemical Works v. Bank of Commerce, 79 Hun, 93, 29 N. Y. Supp. 663; National Union Bank v. London & E. P. Bank, 37 N. Y. Supp. 741, 2 App. Div. 208; Kirwan v. Murphy, 189 U. S. 35, 23 Sup. Ct. 599; Ducktown Sulphur, Copper & Iron Co. v. Fain, 109 Tenn. 56, 70 S. W. 813. See, also, these recent cases: United States v. Bitter Root Development Co., 200 U. S. 451, 50 L. Ed. 550, 26 Sup. Ct. 318 (trespass and conversion of timber by many separate defendants; accounting sought); St. Louis, Iron Mountain & Southern Ry. Co. v. McKnight, 244 U. S. 368, 61 L. Ed. 1200, 37 Sup. Ct. 611 (an injunction suit against the enforcement of statutory rates had been directed by the supreme court to be dismissed. The railroad company then sued to restrain ac- tions by shippers and passengers in the state court for damages, on the theory of multiplicity of suits. The 421 TO PREVENT A MUJ.TIPLICITY OF SUITS. § 251% § 2513/4. There must be a Practical Necessity for the Ex- ercise of the Jurisdiction.^ — Since the existence or exercise of the jurisdiction, in classes third and fourth, depends on defects in the legal rules as to joinder of parties, where the legal remedy is not thus defective, but permits the joinder of the numerous parties or consolidation of the numerous suits, equity v^ill not take jurisdiction for the purpose of awarding substantially the same relief that may be ob- tained at law.^ Again, it has been held that, if danger of only common question — whether the statutory rates promulgated by the railroad commission were confisca- tory — had been settled against the complainant in the first suit. The claim of each defendant in the pres- ent suit presented a separable con- troversy unconnected with any of the others. There was no common controverted question of law) : Bel- lamy V. St. Louis, I. M. & S. Ey. Co., (C. C. A.), 220 Fed. 876. Bills to quiet title against numer- ous defendants in possession of par- cels of a large tract claimed by plaintiff have frequently fallen with- in the condemnation of the principle of the text. See New Jersey & N. C. Land & Lumber Co. v. Gardner Lacy Lumber Co., 161 Fed. 768; Sayers v. Tallassee Falls Mfg. Co., 167 Ala. 553, 52 South. 892; Chaput v. Bock, 224 Mo. 73, 123 S. W. 16 (each de- fendant sets up adverse possession, presenting a separate issue) ; Penis- ton v. Hydraulic Press Brick Co., 234 Mo. 698, 138 S. W. 532; Illinois Steel Co. v. Schroeder, 133 Wis. 561, 126 Am. St. Rep. 977, 14 L. R. A. (N. S.) 239, 113 N. W. 51, (relying on tho above paragraph of the text). In the last case, according to the allegations of the complaint, each defendant claimed title by adverse possession only by tacking his pos- session to the former possession of one M. If complainant succeeded in disproving the possession of M^, therefore, it would appear that the title of each individual defendant would fall with it. While the facts are by no means clear, it would seem that there was a sufficient singleness of issue to warrant the court's tak- ing jurisdiction of the case. As pointed out in the vigorous dissent- ing opinion of Marshall, J., the prin- ciple of the text does not require — as the court appears to assume — • that the whole case against each defendant should be the same. Doubt is cast upon the decision by the opinion in Franke v. H. P. Nel- son Co., 157 Wis. 241, 147 N. W. 13, for which see post, note to § 261. § 251%, (a) This paragraph is cited in International Paper Co. v. Bellows Falls Canal Co., 88 Vt. 93, 90 Atl. 943; Watson v. Huntington, 215 Fed. 472, 131 C. C. A. 520; Southern Steel Co. v. Hopkins, 174 Ala. 465, Ann. Cas. 1914B, 692, 40 L. B. A. (N. S.) 464, 57 South. 11; Vandalia Coal Co. v. Lawson, 43 Ind. App. 226, 87 N. E. 47; Cumberland Tel. & Tel. Co. v. Williamson, 101 Miss. 1, 57 South. 559. § 251%, (b) As where adequate relief may be obtained by joining the numerous defendants or plain- tiffs in an action of ejectment: Smythe v. New Orleans C. & B. Co., § 25134 EQUITY JURISPBUDENCE. 422 vexatious suits by the same party or numerous parties is the ground of jurisdiction alleged by the single complain- ant, he must show more than a mere possibility of such litigation; the danger to which he is exposed must be a real one.<5] 34 Fed. 825; Northern Pac. E. R. Co. V. Amacker, 46 Fed. 233, 49 Fed. 529, 1 C. C. A. 345, 7 U. S. App. 33; McGuire v. Pensacola City Co., 105 Fed. 677, 44 C. C. A. 670; City of San Francisco v. Beideman, 17 Cal. 461; Burroughs v. Cutter, 98 Me. 178, 56 Atl. 649. See, also, Manchester Fire Assur. Co. v. Stock- ton C. H. & A. Works, 38 Fed. 378; Myers v. Sierra Val. S. & A. Assn., 122 Cal. 669, 55 Pac. 689 (by stat- ute, all stockholders may be joined in suit at law to enforce their indi- vidual liability); Imperial Fire Ins. Co. V. Gunning, 81 111. 236 (injunc- tion sought against numerous gar- nishments; complainant has adequate remedy by consolidating the gar- nishment suits) ; Mayor etc. of City of Gainsville v. Dean, 124 Ga. 750, 53 S. E. 183. §251%, (c) See Town of Venice V. Woodruff, 62 N. Y. 462, 20 Am, Rep. 495, as explained in Town of Springport v. Teutonia Sav. Bank, 75 N. Y. 397, 401 (the numerous in- struments sought to be canceled did not create eA'en a prima facie lia- bility); Farmington Village Corpo- ration V. Sandy R. Nat. Bank, 85 Me. 46, 26 Atl. 965 (a similar case: "The evil complained of is based more upon fear than reality. No vexatious litigation by any of these respondents has been shown. No evidence has been adduced of threats, even, of vexatious suits. The mere allegation of a belief that the holders intend to harass the com- plainant is not sufficient") ; Fellows V. Spaulding, 141 Mass. 92, 6 N. E. 548 (against numerous creditors at- tempting to prove their claims against the plaintiff in a court of insolvency: "The same questions of law are raised in each case, and there is no reason why one suit in the usual course of proceedings in insolvency, the others being con- tinued to abide the result, should not settle all the cases"); Andel v. Starkel, 192 111. 206, 61 N. E. 356 (no suits threatened save the one actually brought); Nash v. McCath- ern, 183 Mass. 345, 67 N. E. 323 (all defendants save one disclaim any intention of suing plaintiff) ; Kellett v. Ida Clayton & G. W. W. R. Co., 99 Cal. 210, 33 Pac. 885. See, also, Equitable Guarantee & T. Co. v. Donahue (Del.), 45 Atl. 583, post, note to § 266. It has been held that two suits against the plaintiff do not constitute a "multiplicity" of suits. Druon v. Sullivan, 6G Vt. 609, 30 Atl. 98. In Pacific Exp. Co. v. Sei- bert, 44 Fed. 310, a case of the "second class," to enjoin the collec- tion of taxes, the court said: "It is real and not imaginary suits, it is probable and not possible danger of multiplicity of suits, that will war- rant the assumption of jurisdiction on that ground. While it is true, as the plaintiff contends, that the state might bring a separate suit for each day's penalty, the court would hardly be justified in acting on the assump- tion that it would do so. . . . What- ever the rule may be in the case of natural persons, the court will pre- 123 TO PREVENT A MULTIPLICITY OF SUITS. §252 § 252. Examination of the Doctrine upon Authority — First Class.a — I shall now examine the nature, extent, and limitations of the general doctrine upon authority. The cases belonging to the first class of the arrangement made in a preceding paragraph, i where a court of equity inter- feres because the plaintiff would be obliged to bring a suc- cession, perhaps an indefinite number, of actions at law in order to obtain relief appearing even to be sufficient have generally been cases of nuisance, waste, trespass to land, disputed boundaries involving acts of trespass by the de- fendant, and the like, the wrong complained of being in its very nature continuous. If the plaintiff's title to the sub- ject-matter affected by the wrong is admitted, a court of equity will exercise its jurisdiction at once, and will grant §252, ISee ante, ^245. sume that a state is incapable of such a vulgar passion, and, until the fact is shown to be otherwise, will act on the assumption that a state will not bring anj^ more suits than are fairly necessary to establish and maintain its rights." See, further, the following recent cases: Boise Artesian Hot & Cold Water Co. v. Boise City, 213 U. S. 276, 53 L. Ed. 796, 29 Sup. Ct. 426 (suit in "class second"; something more is required than the beginning of a single action by defendant with honest purpose of settling rights of parties); Kansas City Southern R. Co. V. Quigley, 181 Fed. 190; City Council of Augusta v. Timraerman, 233 Fed. 216, 147 C. C. A. 222 ("class second"; owner of exempt property fears taxation in successive years; held, danger of tax officers trying a second or a number of times to col- lect an improper tax after being once defeated is slight) ; Gallon Iron Works Co. V. Ohio Corrugated Cul- vert Co. (C. C. A.), 244 Fed. 427 (bill to enjoin prosecution in the same federal court of five actions by various licensees for infringement of the same patent; no allegation that the plaintiffs in these actions refused to let one be a test case, or that the court could not so arrange the trial of the actions as to prevent hardship or oppression); J. W. Kelly & Co. V. Conner, 122 Tenn. 339, 25 L. R. A. (N. S.) 201, 123 S. W. 622 (injunction suit to test the validity of certain prohibition legislation; not to be presumed that the prosecuting officers would harass the complain- ant after the invalidity of the legis- lation should once be determined at law). §252, (a) This section is cited in Prcteca v. Maxwell Land Grant Co. (C. C. A.), 50 Fed. 674, and in Coombs V. Lenox Realty Co., Ill Me. 178, 47 L. R. A. (N. S.) 1085, 88 Atl. 477. Sections 252-260 are cited in Crawford County v. Hathaway (Neb.), 93 N. W. 781, 796. § 252 EQUITY JURISPRUDENCE. 424 full relief to the plaintiff, without compelling him to resort to a prior action at law.^ Whenever the plaintiff's title is disputed, the rule is settled that he must, in general, pro- cure his title to be satisfactorily determined by at least one verdict in his own favor, by at least one successful trial at law, before a court of equity will interfere; but the rule no longer requires any particular number of actions or trials. The reason for this requisite is, that courts of equity will not, in general, try disputed legal titles to land. But the rule is one of expediency and policy, rather than an essen- tial condition and basis of the equitable jurisdiction. 2 c In § 252, 2 Hanson v. Gardiner, 7 Ves. 305, 309, 310 ; Livingston v. Living- ston, 6 Johns. Ch. 497, 500, 10 Am. Dec. 353; Parker v. Winnipiseogee, etc., Co., 2 Black, 545, 551; Hacker v. Barton, 84 111. 313; Carlisle v. Cooper, 21 N. J. Eq. 576, 579; Corning v. Troy Iron Factory, 39 Barb. 311, 327, 34 Barb. 485, 492, 493; Webb v. Portland Mfg. Co., 3 Sum. 189; Lyon v. McLaughlin, 32 Vt. 423, 425, 426; Sheetz's Appeal, 35 Pa. St. 88, 95; Holsman v. Boiling Spring Co., 14 N. J. Eq. 335; Sheldon v. Rockwell, 9 Wis. 166, 179, 76 Am. Dec. 265 (interfering with easements of water) ; McRoberts v. Washburne, 10 Minn. 23, 30; Letton v. Goodden, L. R. 2 Eq. 123, 130 (interfering with an exclusive ferry franchise) ; East- man V. Amoskeag, etc., Co., 47 N. H. 71, 79, 80. For the limitations on this application of the doctrine, see Hughlett v. Harris, 1 Del. Ch. 349, 352, 12 Am. Dec. 104. In Parker v. Winnipiseogee, etc., Co., 2 Black, 545, 551, the rule was thus stated by Swayne, J. : Equity will restrain a pri- vate nuisance by injunction, in order "to prevent oppressive and intermin- able litigation or a multiplicity of suits, or when the injury is of such a nature that it cannot be adequately compensated by damages at law, or is such, from its continuance or permanent mischief, as must occasion a constantly occurring grievance, which cannot be prevented otherwise than by an injunction." In Eastman v. Amoskeag, etc., Co., 47 N. H. 71, 79, the court refused to interfere and restrain an alleged private nuisance, because the plaintiff's title was disputed, and had not been established by even one action at law. § 252, (b) The text is cited, to the § 252, (c) The text is quoted in point that on demurrer admitting First National Bank of Fort Wayne complainant's title, resort to an ae- v. Savin, 47 Ind. App. 266, 94 N. E. tion at law to establish his title is 347. This section is cited, to the not 'necessary: Cragg v. Levinson, eflfect that title must be first 'estab- 238 111. 69, 21 L. E. A. (N. S.) 417, lished at law, in Carney v. Hadley, 87 N. E. 121. 32 Fla. 344, 37 Am. St. Eep. 101, 22 425 TO PREVENT A MULTIPLICITY OF SUITS. §252 addition to these ordinary cases of nuisance and similar continuous wrongs to property, there are some other spe- cial instances in which a court of equity has interfered and determined the entire controversy by one decree, in order to prevent a multiplicity of suits, where otherwise the plain- tiff would be compelled to bring several actions at law against the same adversary, and with respect to the same subject-matter. 3 § 252, 3 Biddle v. Ramsey, 52 Mo. 153, 159, is an example. Plaintiff alleged that he had leased premises to the defendant, and by the lease it L. R. A. 233, 14 South. 4; Wabash. R. Co. V. Engleman, 160 Ind. 329, 66 N. E. 892; Bowling' v. Crook, 104 Ala. 130, 16 South. 131; Kennedy v. Elliott, 85 Fed. 832; also, in Dill v. Dill (Del.), 91 Atl. 450. The fol- lowing cases are illustrations of re- lief against continuing trespasses: Carney v. Hadley, 32 Fla. 344, 37 Am. St. Rep. 101, 22 L. R. A. 233, 14 South. 4; Nichols v. Jones, 19 Fed. 855; Blondell v. Consolidated Gas Co., 89 Md. 732, 46 L. R. A. 187, 43 Atl. 817; Boston & M. R. R. Co. V. Sullivan, 177 Mass. 230, 58 N. E. 689; Davis v. Frankenlust Tp., 118 Mich. 494, 76 N. W. 1045; Warren Mills V. N. O. Seed Co., 65 Miss. 391, 4 South. 298; Birmingham Trac- tion Co. V. S. B. T. & T. Co., 119 Ala. 144, 24 South. 731; Golden v. Health Dep't, 47 N. Y. Supp. 623, 21 App. Div. 420; Hahl v. Sugo, 61 N. Y. Supp. 770, 46 App. Div. 632; Olivella v. New York & H. R. Co., 64 N. Y. Supp. 1086, 31 Misc. Rep. 203; Gibbs v. McFadden, 39 Iowa, 371; Ten Eyck v. Sjoburg, 68 Iowa, 625, 27' N. W. 785; Hackney v. Mc- Ininch, 79 Neb. 128, 112 N. W. 296. But see Roebling v. First Nat. Bank, 30 Fed. 744. For further discussion of this subject, see Pom. Eq. Rem., "Injunction against Trespass." In the following cases relief was granted against continuing nui- sances: Campbell v. Seaman, 63 N. Y. 568, 20 Am. Rep. 567; Coatsworth v. Lehigh Val. R. Co., 156 N. Y. 451, 51 N. E. 301, affirming 48 N. Y. Supp. 511, 24 App. Div. 273; Sullivan v. Jones & Laughlin Steel Co. (Pa. St.), 57 Atl. 1065. See, further. Pom. Eq. Rem., "Injunction against Nui- sances." In Nevitt v. Gillespie, 1 How. (Miss.) 108, 26 Am. Dec. 696, a case of waste, the rule was laid down as follows: "A court of equity will not entertain a bill of peace, when the right is controverted by two persons only, until after the right has been established satisfactorily by a trial at law." See, also, Taylor v. Pearce, 71 111. App. 525 (trespass). In Kellett v. Ida Clayton, etc., Co., 99 Cal. 210, 33 Pac. 885, it was held that a party who by contract claimed a right to pass over a road without paying toll could not enjoin interfer- ence with this right until it was es- tablished at law. Although equity will not interfere if the complainant's title be denied, until he has vindicated it at law, it may retain the bill until that has been done. Washburn's Appeal, 105 Pa. St. 480. § 253 EQUITY JUEISPEUDENCB. 426 § 253. Second Class. — The second class, according to my previous arrangement, consists of two branches. In the was stipulated that near the end of the term each should name an appraiser, and they a third; and that these three appraisers should unanimously assess the value of the improvements made by the defendant, and the yearly rental ; and that the plaintiff should have an option to buy such improvements at the sum thus fixed, or to grant a new lease to the de- fendant at the rent thus fixed, etc.; that defendant had by his fraud pre- vented any unanimous action of the appraisers, and had kept possession of the premises for more than three years after the end of the term with- out paying any rent. Held, that the suit in equity was proper, in order to give the plaintiff full relief, and to prevent a multiplicity of actions at law; viz., plaintiff would be obliged to bring an action of ejectment to recover possession of the premises, and then other actions to settle questions as to the payment for the buildings and other improvements. I think the correctness of this decision may be doubted. The plaintiff's interest and causes of action were wholly legal, and the relief which he obtained was also purely legal. It is plain, at all events, that the special cases mentioned in the text must be few in number. For a clear state- ment of the restrictions upon this mode of exercising the equitable juris- diction to prevent a multiplicity of suits, see Richmond v. Dubuque, etc., R. R. Co., 33 Iowa, 422, 487, 4SS,d Black v Shreeve, 7 N J. Eq. 440, 456 457, is a much more appropriate and instructive example. A very long, peculiar, and complicated agreement had been executed by the plaintiffs and a large number of other persons, by which each agreed to pay a cer- tain contributory share, the amount depending upon many contingencies, towards making up an expected deficiency. The plaintiffs paid the whole, and would necessarily be obliged to maintain numerous and successive ac- tions at law in order to establish their own rights, and to ascertain and recover the amounts payable by the other parties. It was held that, to avoid this multiplicity of actions, the plaintiffs could sue in equity, and have the whole matter settled by one decree. It should be observed that the rights, liabilities, and remedies of all the parties were purely legal, since they were in no sense sureties.® § 252, (d) Post, in note to § 263. ring breach of the contract would The above note is cited in Clark v. require numerous actions at law, and Sipple (Del.), 84 Atl. 1. consequently granted an injunction. § 252, (e) In Stovall v. McCutchen, For another instance of specific per- 107 Ky. 577, 92 Am. St. Eep. 373, 47 formance of a contract on the ground L. E. A. 287, 54 S. W. 969, a num- that it called for a continuous series ber of merchants agreed' to close of acts, see Shimer v. Morris Canal their stores at a certain hour each & B. Co., 27 N. J. Eq. 364. On the day. The court held that the recur- same ground, specific performance 427 TO PREVENT A MULTIPLICITY OF SUITS. § 253 first of these the defendant has brought, or threatens to bring, successive actions at law to recover the same subject- matter from the plaintiff, where from the rules of the legal procedure the title is not determined by a judgment in any such action or number of actions. This branch has there- fore been ordinarily confined to cases of successive actions of ejectment to recover the same tract of land from the plaintiff. It follows as a matter of course that equity will not interfere on behalf of the plaintiff, and restrain the defendant's proceedings, until the plaintiff's title has been sufficiently established by the decision of at least one action at law in his favor.^- Indeed, the interference of equity as- sumes that the plaintiff's legal right and title have been clearly determined, and its sole object is to quiet that title by preventing the continuance of a litigation at law which has become vexatious and oppressive, because it is unneces- sary and unavailing. A court of equity will not therefore interfere to restrain the defendant's litigation as long as the plaintiff's title is uncertain.^ ^ And in analogous cases, § 253, 1 Leighton v. Leighton, 1 P. Wms. 671 ; Earl of Bath v. Sherwin, Free. Ch. 261, 10 Mod. 1, 1 Brown Pari. C, 266, 270, 2 Brown Pari. C, Tomlins's ed., 217; Devonshire v. Newenham, 2 Schoales & L. 208, 209; Waller v Smeaton, 1 Cox, 102, 1 BroAXTi Ch. 573; Earl of Darlington v. Bowes, 1 Eden, 270, 271, 272; Alexander v. Pendleton, 8 Cranch, 462, 468; Trustees of Huntington v. Nicoll, 3 Johns. 566, 589, 590, 591, 595, 601, 602; Eldridge v. Hill, 2 Johns. Ch. 281; Woods v. Monroe, 17 Mich. 238; Knowles v. Inches, 12 Cal. 212; Patterson v. McCamant, 28 Mo. 210; Bond V. Little, 10 Ga. 395, 400 ; Harmer v. Gwynne, 5 McLean, 313, 315. of a contract to pay alimony in cer- § 253, (b) This paragraph is cited tain amounts at fixed periods was in Wehrman v. Conklin, 155 U. S. enforced in Fleming v. Peterson, 314, 15 Sup. Ct. 129; Kennedy v. 167 III. 465. Injunction necessary Elliott, 85 Fed. 832; Gordon v. Jack- to prevent monthly breaches of a son, 72 Fed. 86. The text is quoted contract extending over a number of in Dishong v. Finkbiner, 46 Fed. 12, years: Minnetonka Oil Co. v. Cleve- 16, where many cases are reviewed, land Vitrified Brick Co., 27 Old. 180, and it is held that the defendant 111 Pac. 326. in ejectment will not generally be §253, (a) The text is quoted in granted relief in equity when his United Cigarette Mach. Co. v. Win- title has Tseen determined in only ston Cigarette Mach. Co., 194 Fed. one action. See, also. Craft v. 947, 114 C. C. A. 583. Lathrop, 2 Wall. Jr. 103, Fed. Cas. §253 EQUITY JURISPKUDENCB. 428 not of ejectment, the court will interfere and restrain tlie defendant's further prosecution of successive actions at law, and will thus establish and quiet the plaintiff's right, when all the questions of law and fact involved in these actions have already been fully determined in the plaintiff's favor by some former judicial proceeding between the same parties.2 § 253, 2 As in Paterson, etc., R. R. v. Jersey City, 9 N. J. Eq. 434, the city ofiScials had assessed the property of the railroad for taxes, state, county, and city. The railroad brought a writ of certiorari to the supreme 'court, which held that all these taxes were invalid because the corporation was by its charter exempted from all general taxation, and this decision was affirmed by the court of errors. Notwithstanding these decisions, the No. 3,318; Pratt v. Kendig, 128 111. 293, 21 N. E. 495 (immaterial whether the proceeding in which the right has been established is an action at law or a suit in equity); Marsh v. Reed, 10 Ohio, 347; Caro V. Pensacola City Co., 19 Fla. 766; Holland V. Challen, 110 U. S. 15, 19, 3 Sup. Ct. 495; Sharon v. Tucker, 144 U. S. 542, 12 Sup. Ct. 720; Boston & Montana C. C. & S. M. Co. v. Montana Ore P. Co., 188 U. S. 632, 23 Sup. Ct. 434. Ante, notes to § 248. In Texas, where the courts are empowered to give such relief as the case may require, whether legal or equitable, it is held that the rules that one will not be quieted in his title until he has established it at law, and that one not in possession cannot maintain an action to remove a cloud from his title, have no appli- cation: Thomson v. Locke, 66 Tex. 383, 389, citing the text, §§ 242, 253, 254, 258. In Thompson's Appeal, 107 Pa. St. 559, a married woman in pos- session of her separate estate was allowed to maintain a bill in equity to restrain repeated actions of eject- ment by a purchaser at sheriff's sale of said property, under a judgment against her husband, where such ac- tions were not brought in good faith and were not prosecuted to judg- ment, but were brought with the alleged purpose of compelling the payment of her husband's debt; and where the actions sought to be re- strained are of such a nature that there is no opportunity to determine the title, a bill will lie, without the title having been first determined at law: Langdon v. Templeton, 61 Vt. 119. In Porter v. Eeed, 123 Mo. 587, 27 S. W. 351, there had been one verdict only in complainant's favor, but several other actions had been brought against him and abandoned. Where defendant has obtained judg- ment in an action at law, and one ef the parties thereupon brings re- peated vexatious suits in equity to obtain a new trial, dismissing each suit and immediately commencing another, the defendant may obtain an injunction without further es- tablishing his legal title: Shevalier V. Stephenson, 92 Neb. 675, 139 N, W. 233. See, also, Lyons v. Importers & Traders' National Bank, 214 Pa. 428, 63 Atl. 827 (repeated attach- ments). 429 TO PREVENT A MULTIPLICITY OF SUITS. § 254 § 254.a In the second branch of the same class the single defendant has brought a number of simultaneous actions at law against the plaintiff, all depending upon similar facts and circumstances, and involving the same legal questions, so that the decision of one would virtually be a decision of all the others. A court of equity may then interfere and restrain the prosecution of these actions, so that the deter- mination of all the matters at issue between the two parties may be brought within the scope of one judicial proceeding and one decree, and a multiplicity of suits may thereby be prevented. It must be admitted that this exercise of the equitable jurisdiction is somewhat extraordinary, since the' rights and interests involved are wholly legal, and the sub- stantial relief given by the court is also purely legal. It may be assumed, therefore, that a court, of equity will not exercise jurisdiction on this particular ground, unless its interference is clearly necessary to promote the ends of city afterwards assessed the same kind of taxes again upon the same prop- erty of the railroad in two successive years, and was taking the steps provided by law for the collection of these latter taxes by a compulsory sale of the company's property. The railroad thereupon brought this suit in equity for an injunction against the city and its officials. Held, a proper occasion for equity to restrain a multiplicity of suits. If the plaintiff's right has been established by a decision at law, there is no requirement of any particular number of actions at law before a suit in equity can be maintained; one judgment at law may be sufficient." §253, (c) After the illegality of a (Neb.), 93 N. W. 943, the institu- tax has been established at law, tion of successive garnishment pro- equity will restrain future suits to ceedings to reach complainant's collect. Bank of Kentucky v. Stone, wages, which had been adjudged to 88 Fed. 383. In Union & Planters' be exempt, was enjoined. Bank v. Memphis, 111 Fed. 561, 49 §254, (a) This section is cited in C. C. A. 455, the complainant alleged Eureka & K. E. R. Co. v. Cal. & N. that the right of the defendant to E. Co., 109 Fed. 509, 48 C. C, A. 517; tax it-B capital stock had been tried Thomson v. Locke, 66 Tex. 383, 389; and denied. Accordingly, an injunc- Galveston, H. & S. A. E'y Co. v. tion to prevent future repetitions of Dowe, 70 Tex. 5, 7 S. W. 368; also in the assessment was allowed in order Aimee Eealty Co. v. Haller, 128 Mo. to prevent a multiplicity of suits. App. 66, 106 S. W. 588. In Siever v. Union Pac. E. Co. §254 EQUITY JURISPRUDENCE. 430 justice, and to shield the plaintiff from a litigation which is evidently vexatious.^ It should be carefully observed that a court of equity does not interfere in this class of cases to restrain absolutely and completely any and all trial and decision of the questions presented by the pending actions at law; it only intervenes to prevent the repeated or numer- ous trials, and to bring the whole within the scope and effect of one judicial investigation and decision. It should also be observed that if the pending actions at law are of such a nature or for such a purpose, that, according to the settled rules of the legal procedure, they may all be consolidated into one, and all tried together by an order of the court in which they or some of them are pending, then a court of equity will not interfere ; since the legal remedy of the plain- tiff is complete, certain, and adequate, there is no necessity for his invoking the aid of the equitable jurisdiction. i ^ § 254, 1 Kensington v. White, 3 Price, 164, 167; Third Avenue R. R. v. Mayor, etc., of N. Y., 54 N. Y. 159, 162, 163; West v. Mayor of N. Y., §254, (b) The text is quoted in United Cigarette Mach. Co. v. Win- ston Cigarette Mach. Co., 194 Fed. 947, 114 C. C. A. 583; in Chicago, R. I. & G. Ry. Co. V. Liberal Elevator Co. (Tex. Civ.), 182 S. W. 355; and cited to this effect in Boise Artesian Hot & Cold Water Co. v. Boise City, 213 U. S. 276, 53 L. Ed. 796, 29 Sup. Ct. 426. §254, (c) The case of Galveston, H. & S. A. R'y Co. v, Dowe, 70 Tex. 5, 7 S. W. 368, was very similar to that of Third Avenue R. R. Co. v. Mayor of N. Y., 54 N. Y. 159, 162, 163. A railroad contractor had issued a number of time-checks, thirty of which, by assignment, had become the property of the defendant. The latter brought separate suits on a large number of these claims in a justice's court, which had no power to consolidate the actions. An in- junction was granted against the prosecution of the separate suits, al- though the plaintiff had not estab- lished his right in an action at law. In Norfolk & N. B. Hosiery Co. v. Arnold, 143 N. Y. 265, 38 N. E. 271, the plaintiff at law recovered judg- ment for royalties. The defendant appealed, whereupon plaintiff threat- ened successive actions for further in- stallments. The plaintiff was finan- cially irresponsible, and ample se- curity had been given. The court granted an injunction to stay the further suits. Third Avenue R. R. Co. v. Mayor, 54 N. Y. 159, was cited. Featherstone v. Carr, 132 N. C. 800, 44 S. E. 592, was a similar case (prosecution of monthly suits for rent, pending appeal from judg- ment awarding possession of the premises, enjoined). In Cuthbert v. Chauvet, 60 Hun, 577, 14 N. Y. Hupp. 385, 20 Civ. Proc. Kep. ^yi, the plaintiff at law brought ten ac- 431 TO PREVENT A MULTIPLICITY OF SUITS. §255 § 255. Third and Fourth Classes.^ — In pursuing this in- quiry into the extent and limitations of the doctrine, the 10 Paige, 539. In Kensington v. White, 3 Price, 164, defendant had brought five separate actions at law on five different policies of insurance effected on different ships, but between the same parties and at the same time; the defense was substantially the same in all, — fraud of the assured. The complainants (defendants in the five actions), the insurers, then brought this suit in equity, to have all the matters tried in one suit, pray- ing for a discovery, and an injunction against the actions at law. The bill was held proper, in order to avoid a multiplicity of suits, as the whole was really one transaction. In Third Avenue R. R. v. Mayor of N. Y., tiona of ejectment simultaneously and depending upon the same facts. An injunction was issued against all the actions but one. Third Avenue K. B. Co. V. Mayor, 54 N. Y. 159, was cited. In Peters v. Prevost, 1 Paine C. C. 64, Fed. Cas. No. ll,031i, the complainant sought to enjoin ninety-two simultaneous actions of ejectment. The court held that the actions might be consolidated at law, and refused relief. In Cleland V. Campbell, 78 111. App. 624, injunc- tion was refused against the prose- cution of twenty-three simultaneous actions at law, until the complain- ant's right should be established at law. Further instances of exercise of the jurisdiction: Guice v. Illinois Central E. Co., Ill Miss. 36, 71 South. 259 (numerous suits against railroad company for recovery of statutory penalties) ; Aimee Realty Co. V. Haller, 128 Mo. App. 66, 106 S. W. 588 (plaintiff threatened with successive actions at law growing out of the same contract, and in- volving the same questions of fact and law, the right to have the ac- tions consolidated being doubtful). Exercise of the jurisdiction re- fused: City of Newark v. Chestnut Hill Land Co., 77 N. J. Eq. 23, 75 Atl. 644 (action at law was brought against complainant city for dam- ages for the diversion of water; the city sought an injunction because the injury was continuing and it would be exposed to successive suits ; held, that the privilege of coming into equity on that ground is the privilege of the party injured, not of the wrong-doer) ; St. Louis Southwestern Ey. Co. v. Woldert Grocery Co. (Tex. Civ. App.), U^S fcJ. W. 1174 (a shipper brought seventeen actions for negligence of the complainant or its connecting carriers in handling as many sep- arate shipments of fruit; as a com- bination of the actions into one suit in equity would not result in a simplification of the issues of law and fact, under the principle of § 251 1^, ante, jurisdiction was re- fused) ; Wells Fargo & Co. v. Guil- heim (Tex. Civ. App.), 169 S. W. 1053 (a similar case) ; Chicago, R. 1. & G. Ry. Co. V. Liberal Elevator Co. (Tex. Civ. App.), 182 S. W. 355 (analogous case). ■ § 255, (a) This paragraph is cited, generally, in Brizzolara v. City of Ft. Smith, 87 Ark. 85, 112 S. W. 181; Supreme Lodge of Fraternal Union of America v. Ray (Tex. Civ, App.), 166 S. W. 46. Sections 255 et seq. are cited in City of Houston v. Richter (Tex. Civ. App.), 157 S. W. 189. § 255 EQUITY JURISPRUDENCE. 432 third and fourth of my classes may with advantage he con- sidered together. In the third, a number of persons have 54 N. Y. 159, 162, 163, the city had brought seventy-seven actions in a justice's court to recover penalties for violating a city ordinance concern- ing the running of cars without a license, each action for a separate pen- alty. All the actions depended upon similar facts and upon the same question of law, viz., whether the railroad Avas liable under the ordinance; and a decision of one would virtually decide all. The company brought this suit in equity to restrain the prosecution of all these actions except one, offering to abide the final decision in that one. The suit was sus- tained, and the relief granted, because a justice court had no power ta consolidate these actions. The decision was placed expressly upon the power of equity to prevent a multiplicity of suits, and the impossibility of the plaintiff's being relieved in any other manner from a vexatious litigation. The case was held to be distinguishable from West v. Mayor, etc., 10 Paige, 539, in which an apparently contrary decision was made, because in the latter case the plaintiff, West, sought to restrain absolutely all the actions which were pending against him. I would add that some of the language in the chancellor's opinion in West v. Mayor, etc., 10 Paige, 539, goes much further than the distinction thus made, and can hardly be reconciled with the decision of the court of appeals; but the decision in West v. Mayor, etc., 10 Paige, 539, is clearly distinguishable. In West V. Mayor, etc., 10 Paige, 539, the city had brought a considerable number of actions against the plaintiff, to recover penalties for alleged violations, all similar in their nature, of a city ordinance. None of these actions had yet been tried. Plaintiff then sued in equity to have all these actions enjoined, and to try the whole matter in the single equity suit. Chancellor Walworth held that a court of equity could not interfere, because, — 1. That equity would never assume jurisdiction in a case analogous to the present until the plaintiff had established his right by a successful defense in at least one of the actions ; and 2. That equity would never interfere when the whole question was one of law, and if the law was with the plaintiff he would have a perfect defense in each action. Such suits in equity have been sustained where the questions were of fact, or of mixed law and fact; but no bill can be sustained to restrain a de- fendant from suing at law, where only a question of law is involved, and when the defendant at law (the plaintiff in equity) must finally succeed in his defense if the law is in his favor. It is plain that both of these general grounds adopted by the chancellor are irreconcilable with the sub- sequent decision by the court of appeals last quoted.* § 254, (d) Injunction Against Nu- question whether the complainant's merous Prosecutions for Violation right must first be established at of a Municipal Ordinsuice. — On the law, the recent cases are conflict- 433 TO PREVENT A MULTIPLICITY OF SUITS. §255 separate and distinct interests, but still united by soine common tie, against one determined party, and these in- terests may perhaps be enforced by one equitable suit brought by all the persons joining as co-plaintiffs, or by ing. In some jurisdictions, relying, largely, on the authority of West v. Mayor, 10 Paige, 539, successive prosecutions under a municipal ordi- nance will not be enjoined on the ground of the prevention of a multi- plicity of suits, unless the complain- ant has first established the invalid- ity of the ordinance by a successful defense in a suit at law. Poyer v. Village of Des Plaines, 123 111. Ill, 5 Am. St. Eep. -194. See, also, Chi- cago, B. & Q. R. R. Co. V. City of Ottawa, 148 111. 397, 36 N. E. 85; Yates V. Village of Batavia, 79 111. 500; Ewing v. City of Webster City, 103 Iowa, 226, 72 N. W. 511; City of Bisbee v. Arizona Ins. Agency, 14 Ariz. 313, 127 Pae. 722; City of Chicago V. Chicago City Ry. Co., 222 111. 560, 78 N. E. 890 (distinguishing cases of class third, where the ordi- nance affects numerous persons). The majority of the recent deci- sions, however, appear to be in ac- cord with the text. Joseph Schlitz Brewing Co. v. City of Superior, 117 Wis. 297, 93 N. W. 1120 (enforce- ment of void ordinance enjoined though none of the threatened pros- ecutions had in fact been com- menced); Milwaukee El. R. & L. Co. v. Bradley, 108 Wis. 467, 84 ]N. W. 870. In City of Hutchinson v. Beckham, 118 Fed. 399 (C. C. A.), a suit to enjoin the enforcement of an illegal city ordinance imposing a license tax, Thayer, Cir. J., ob- serves: "Now, conceding that the validity of the ordinance might have been tried in any one of the criminal prosecutions thus brought by the city, yet, as the right of ap- 1—28 peal existed from any judgment which might have been rendered therein, it is apparent that months, and possibly some years, might have elapsed before the invalidity of the ordinance would have been defi- nitely established, and that in the meantime the plaintiffs might and probably would have been compelled to defend a multitude of suits, and submit to daily interruptions of their business, which would have proven to be very annoying and probably disastrous." In Silvester Co. v. St. Louis, 130 Mo. 323, 51 Am. St. Rep. 566, 32 S. W. 649, an adjudication at law of the invalid- ity of the ordinance was held un- necessary. The court said: "While, under the former system of juris- prudence, in which relief in equity was administered by a different tri- bunal, and by a different procedure from those that gave relief at law, courts of equity have sometimes re- fused to interfere before the right was established at law (West v. Mayor, etc., 10 Paige, 539), there seems no good reason, under the present system, in code states, where both are blended, why such relief should not be granted in the first instance by injunction." See, also, Davis v. Fasig, 128 Ind. 271, 27 N. E. 726; City of Rushville v. Kush- ville Natural Gas Co., 132 Ind. 575, 15 L. R. A. 321, 28 N. E. 853. See, also, the recent cases: Minneapolis General Electric Co. v. City of Minneapolis, 194 Fed. 215; Kansas City Gas Co. v. Kansas City, 198 Fed. 500 (ordinance fixing price of gas) ; Board of Commissioners of § 255 EQUITY JURISPRUDENCE. 434 one suing on behalf of himself and all the others, or even by one suing for himself alone> The fourth is the exact converse of the third. One determined party has a general right against a number of persons, common to all in some of its features, but still affecting each individually, and only with respect to his 'separate, distinct interests, so that each of these persons has a separate and distinct claim in opposi- tion to the asserted right.^ It is plain that the same funda- mental questions must arise in both of these classes. The first and most important question which meets us is, What must be the character, the essential elements, and the ex- ternal form of the common right, claim, or interest held by the number of persons against the single party in the third class, and by the single party against the number of persons in the fourth class, in order that a court of equity may ac- quire or exercise jurisdiction for the purpose of preventing a multiplicity of suits, and may determine the rights of all and give complete relief by one decree? Is it necessary that the common bond, element, or feature should inhere in the very rights, interests, or claims themselves which sub- sist between the body of persons on the one side and the single party on the other, and should affect the nature and form of those rights, interests, or claims to such an extent that they create some positive and recognized existing legal City of Mobile v. Orr, 181 Ala. 308, ion of Sanborn, Cir. J.; Macon, etc., 45 L. B. A. (N. S.) 575, 61 South. R. B. Co. v. Gibson, 85 Ga. 1, 21 Am. 920; Dibrell v. City of Coleman St. Eep. 135, 11 S. E. 442 j Osborne (Tex. Civ. App.), 172 S. W. 550. For v. Wisconsin Cent. R. Co., 43 -b'ed. further cases on this subject, con- 824, by Harlan, J., all illustrating suit Pomeroy's Eq. Rem., "Injunc- the author's "third class." tion Against Municipal Corpora- §255, (c) This and the following tions." For relief in equity depend- sections are cited in Smith v. i>ob- ent on the fact that the ordinance bins, 87 Ga. 303, 13 S. E. 496, a case affects numerous persons, see post, of the "fourth class." This section §261, note, Third Class, (I), (b). is cited in Illinois Cent. R. Co. v. § 255, (b) This section is cited in Garrison, 81 Miss. 257, 95 Am. St. Liiverpool & L. & G. Ins. Co. v. Clu- Rep. 469, 32 South. 996; Kellogg v. nie, 88 Fed. 160, 167; Washington Chenango Valley Sav. Bk., 42 N. Y. County V. Williams, 111 Fed. 801, Supp. 379, 11 App. Div. 458, cases of 815, 49 C. C. A. 621, dissenting opin- the "fourth class." 435 TO PREVENT A MULTIPLICITY OF SUITS. § 256 relation or privity between the individual members of the group of persons, as well as between each of them and the single determined party to whom they all stand in an ad- versary position? Or is it enough that the common bond or element consists solely in the fact that all the rights, in- terests, or claims subsisting between the body of persons and the single party have arisen from the same source, from the same event, or the same transaction, and in the fact that they all involve and depend upon similar ques- tions of fact and the same questions of law, so that while the same positive legal relation exists between the single determined party on the one side and each individual of the body of persons on the other, no such legal relation exists between the individual members themselves of that body? — as among themselves their respective rights, in- terests, and claims against the common adversary party, otherwise than above stated, are wholly separate and dis- tinct. This question lies at the foundation of the whole discussion. Others have been suggested, and have been considered by the courts, but they are all finally resolved into this, and all depend upon its final solution for their answer. It is in the solution of this most important ques- tion, and in its application to particular circumstances, that most of the conflict of opinion among the American courts especially has arisen. I shall endeavor to present all these conflicting views briefly but fairly, and to suggest my own opinion concerning their correctness and the weight of authority : to reconcile them all would be simply impossible. § 256. Community of Interest. ^ — The two leading cases are generally known as * ' The Case of the Fisheries, ' ' i and "The Case of the Duties." ^ The former was a bill to re* § 256, 1 Mayor of York v. Pilkington, 1 Atk. 282. § 256, 2 City of London v. Perkins, 3 Brown Pari. C, Tomlins's ed., 602. §256, (a) This paragraph of the Southern Pac. R. Co., 117 Fed. 544, t-ext is cited in United States v. a suit of the "fourth class." § 256 EQUITY JURISPRUDENCE. 436 strain a large number of trespassers, and to establish the 23laintiff 's right as against them. The corporation had ex- ercised and claimed an exclusive right of fishery over an extent of nine miles in the river Ouse. The defendants were numerous lords of manors and owners of separate tracts of land adjacent to the river, and each claimed, in opposition to the city, an individual right of fishery within the specified limits by virtue of. his separate and distinct riparian proprietorship. Lord Hardwicke sustained the bill, although the plaintiff had not established his exclu- sive title by any action at law, and although the claims of the various defendants were thus wholly distinct, and ex- pressly placed his decision upon the equitable jurisdiction to prevent a multiplicity of suits, since otherwise the cor- poration would be obliged to bring endless actions at law against the individual trespassers. The second case was brought to establish the right of the city of London to a duty payable by all merchants importing a certain article of merchandise. It has ordinarily been quoted and treated as though it was a bill filed by the city against a number of individual importers separately engaged in the trade, for the purpose of establishing and enforcing the city's common right to the duty or tax in question. An examination of the record shows that this is not an accurate account of the proceeding; but still the case has generally been regarded as an important authority in support of the equity jurisdic- tion under the circumstances described, and such seems to have been the view taken of it by Lord Hardwicke in decid- ing the Fisheries Case. There are other English decisions to the same effect, depending upon strictly analogous facts, and involving the same doctrine, which are referred to in the foot-note.2 There is an opinion of Lord Eedesdale in § 256, 3 Lord Tenham v. Herbert, 2 Atk. 483, per Lord Hardwicke (see the passage from his opinion quoted ante, in note to § 247) ; How v. Ten- ants of Bromsgrove, 1 Vern. 22, a suit by the lord of a manor to establish a right of free warren against the tenants of his manor; Ewelme Hospital V. Corp'n of Andover, 1 Vern. 266, a suit to establish the right to hold 437 TO PREVENT A MULTIPLICITY OF SUITS. § 256 the case of Whaley v. Dawson, which has sometimes been quoted as though it were intended to furnish the true rule a fair at a particular place, and to have certain profits and dues from persons trading at such fair; Cowper v. Clerk, 3 P. Wms. 155, 157, a bill filed by a single copy-holder against the lord of the manor, to be relieved from an excessive fine. Lord Chancellor King held that a bill by a single copy-holder could not be sustained, because the defense of an excessive fine would be admitted in an action at law brought against him by the lord. But the chancellor added that a bill would lie hy several copy-holders to he relieved from a general fine, on the ground of its being excessive, in order to prevent a multiplicity of suits. This case, in my opinion, is extremely important in the extent to which it carries the operation of the doctrine. In Weale v. West Middlesex Water Co., 1 Jacob & W. 358, 369, there is a very important opinion of Lord Chancellor Eldon concerning the opera- tion of the doctrine in these classes of eases. The defendant was required by its charter to furnish water to the inhabitants of a specified district at reasonable rates. The defendant had raised its rates, and the plaintiff, who had been a customer, filed a bill to compel the company to keep on furnishing water at the old rates, and to restrain it from cutting off the water supply, etc. Lord Eldon said (p. 369) : In Mayor of York v. Pilk- ington, 1 Atk. 282, the plaintiff had an exclusive right of fishery in a cer- tain river; many persons claimed that they had a right; and the corpora- tion sued to establish its own exclusive right; and it was held that the bill was proper, because if the corporation showed itself to have an exclusive right, the rights of no other individual persons could stand. "If any per- son has a common right against a great many of the king's subjects, inasmuch as he cannot contend with all the king's subjects, a court of equity will permit him to file a bill against some of them, taking care to bring so many persons before the court that their interest shall be such as lead to a fair and honest support of the public interests; and when a decree has been obtained, then the court will carry the benefit of it into execution against other individuals, who were not parties. . . . This would be more like that case if it were the direct converse of what it is; because it is impossible in the nature of the thing that Weale (the plaintiff) can maintain a suit on behalf of himself and other inhabitants of the district; he can only come into court on the footing of his own independent right." See, also, Bouverie v. Prentice, 1 Brown Ch. 200; and Ward v Duke of Northumberland, 2 Anstr. 469; Arthington v. Fawkes, 2 Vern. 356. The doctrine was applied under analogous circumstances in the very recent cases of Sheffield Water Works v. Yeomans, L. R. 2 Ch. 8, 11, and Phillips V. Hudson, L. R. 2 Ch. 243, 246. The first of these cases is a very strong one. A reservoir of the water company had bixrst, and damaged a large number of persons. Under a special statute, commissioners were ap- § 256 EQUITY JURISPRUDENCE. 438 concerning the nature of the common interests and common relations which must subsist among the individual members of the numerous body of persons in the two classes of cases pointed to examine the claims of all these persons, and to give a certificate to each one whose claim was satisfactorily proved. Each certificate would be prima facie a legal demand against the company for the amount of damage certified in it; but to enforce such certificate, each holder must bring an action at law. The commissioners issued a large number of cer- tificates, and among them a certain class, fifteen hundred in number, which the company claimed to be illegal. To avoid the multiplicity of actions against itself on these certificates, the company brought this suit in equity against certain of the holders sued on behalf of all the others, praying to have the certificates adjudged invalid, and canceled. Here was no com- munity of right or of interest in the subject-matter among these fifteen hundred certificate holders. In the form in which their demands existed, they did not all arise from the one wrongful act of the water company. Each holder's demand and separate right arose solely from the dealings of the commissioners with him individually. The only community of in- terest among them was in the question of law at issue upon which all their rights depended, and in the same remedy to which each might be entitled. The suit was sustained on demurrer first by Kindersly, V. C, and on appeal by Chelmsford, L. C. The latter said: "Strictly speaking, this is not a bill of peace, as the rights of the claimants under the alleged cer- tificates are not identical; but it appears to me to be within the principle of bills of this description. The rights of the numerous claimants (cer- tificate holders) all depend upon the same question. ... It seems to me to be a very fit ease, by analogy, at least, to a bill of peace, for a court of equity to interpose and prevent unnecessary litigation," etc. This case has a strong resemblance in its circumstances, object, and principle to the celebrated suit growing out of the Schuyler fraud, described under a subse- quent paragraph. It certainly cannot be reconciled with the theory, main- tained by some of the American courts, that there must be a common interest in the subject-matter, or a common title among the numerous body of claimants, in order that a court of equity may interfere by such a suit.* In Phillips V. Hudson, L. R. 2 Ch. 243, 246, Lord Chancellor Chelmsford § 256, (b) The pertinency of Shef- L. R. A. (N. S.) 491, 56 South. 198, field Water Works v. Yeomans to on the ground that the multiplicity the author's discussion has been as- of suits involved therein did not sailed (see Southern Steel Co. v. confer jurisdiction, but that it was Hopkins, 174 Ala. 465, Ann. Cas. based upon an independent equity, 1914B, 692, 40 L. R. A. (N. S.) 464, viz., the cancellation of invalid 57 South. 11, and Roanoke Guano instruments. This criticism rests Co. V. Saunders, 173 Ala. 347, 35 upon the rather naive assumption 439 TO PREVENT A MULTIPLICITY OF SUITS. § 256 now under consideration.'* It is very evident, however, that Lord Redesdale is not alluding to, nor even contemplating, in this decision, any kind of case in which equity assumes jurisdiction to prevent a multiplicity of suits; he is merely decided that a suit will lie by one copyholder suing on behalf of himself and the others, against the lord of a manor, to establish their rights of common in the manor; but such a suit cannot be maintained by a single copyholder suing alone." See the very recent and instructive case of Board of Supervisors v. Deyoe, 77 N Y. 219, 225.* § 256, 4 Whaley v. Dawson, 2 Schoales & L. 367, 370. This was a suit praying partition of certain lands against the defendant D., and also alleg- ing that by fraud the defendant C. had obtained from the plaintiff a lease of a certain part of said land, and praying, as against the defendant C, that such lease might be set aside. This bill was demurred to on the ground of multifariousness, and the demurrer was sustained. Lord Redes- dale said (p. 370) : "In the cases where demurrers on the ground that plaintiff demanded by his bill matters of distinct natures against several defendants not connected in interest have been overruled, there has been a general right in the plaintiff covering the whole case, although the rights of the defendant may have been distinct. But I take it that where the subjects of the suit are in themselves perfectly distinct, there is a common gi'ound of demurrer." Even if this opinion can be regarded as having any reference to the eases under consideration, in which a court of equity may exercise jurisdiction in order to prevent a multiplicity of suits, it very plainly does not place any practical limit to the operation of the doctrine; it does not in the least ascertain and fix the common nature of the interests or relations which must subsist among the body of persons, or between them individually and their single adversary. See, also, Bouvei'ie v. Prentice, 1 Brown Ch. 200; Ward v. Duke of Northumberland, 2 Anstr. 469. that jurisdiction will always be ex- § 256, (c) See, also, the similar ease ercised for the cancellation of an in- of Smith v. Brownlow, L. R. 9 Eq. valid instrument, regardless of the 241. adequacy of the defense at law to § 256, (d) A bill in the nature of that instrument. It is obvious from a bill of peace may be brought by the facts of this case that if there a single plaintiff, claiming rights in had been involved only one or a the waters of a stream against nu- few invalid certificates, the remedy merous- defendants, to determine by setting up the invalidity in the and define conflicting rights to or legal proceedings would have been claims upon the waters of the same perfectly simple and adequate. It stream: Crawford Co. v. Hathaway, was the necessity of setting up that (JNeb.) &3 N. W. 781, 796. H'ot defense seven thousand times, and other analogous cases, see post, § ^61, that necessity alone, which rendered note, the legal remedy inadequate. §256 EQUITY JURISPRUDENCE. 440 discussing the familiar objection of multifariousness, where the plaintiff has united two entirely separate subject-mat- ters and defendants in the suit over which equity had an undoubted and exclusive jurisdiction. The other English decisions very clearly do not require any privity between the members of the numerous body, nor any common ele- ment or feature inhering in the very nature of their indi- vidual interests as between themselves.^ ® § 256, 5 There is a marked distinction between the case of "Weale v. West Middlesex Water Co., 1 Jacob & W. 358, 369, and the Fisheries Case and others quoted in the preceding notes. There was no common right of any kind among the water consimiers of the district and the company. It is true, the company was bound by charter to supply all who wished the water and paid the rates; but the immediate basis of the supply in each individual case, and the only legal relation between each consumer and the company, was a distinct, separate, voluntary contract made between such consumer and the company. Each consumer stood upon his own distinct contract as the single source of his right. There was no sort of com- munity of interest among the consumers of the district; their rights were not only separate, but did not arise from the same legal cause, or event, or transaction ; nor did they depend upon the same questions of law or of fact. Very plainly, therefore, they were not in such a position that they could all join as co-plaintiffs in a suit against the company; nor could Weale sue on behalf of the others. § 256, (e) The recent case of Duke of Bedford v. Ellis, [1901] App. Cas. (H. of L.) 1, affirming Ellis v. Duke of Bedford, [1899] 1 Ch. 494, is of importance as defining the right of one person to sue as representative of a class. There, several persons sued on behalf of all "growers" of fruit, etc., to enforce preferential rights which they claimed under statutes, to stands in Covent Garden Market, seeking a declaration of their rights, and an injunction against their infringement. It was declared (pp. 8, 10) that Order XVI, Eul(> 9, to the effect that "where there are numerous persons having tb.s same interest in one cause or matter, one or mors of such persons may sue or be sued ... in such cause or matter on behalf or for the benefit of all persons so interested," simply extended to all courts the practice of the court of chancery, which in this respect "remains very- much as it was a hundred years ago." The rule was not confined to persons who have or claim some beneficial proprietory right which they are asserting or defending, to justify a person suing in a repre- sentative capacity it is enough that he has a common interest with those whom he claims to represent. Dicta in Templeton v. Russell, [1893] 1 Q. B. 435, were overruled. 441 TO PREVENTS MULTIPLICITY OF SUITS. §257 § 257. Distinct Proprietors Injured by One Wrong.^ — There is another important group of cases, presenting on their face a very different condition of facts, which illus- trate the question as to the community of interests which must subsist among the individuals of a numerous body of persons in opposition to a single party, in order that a court of equity may take jurisdiction, and grant them relief upon the ground of preventing a multiplicity of suits. These are the cases in which a number of individual pro- prietors of separate and distinct parcels of land have all been interfered with and injured in the same general man- ner, with respect to their particular lands, by a private nuisance, so that they all have a similar claim for legal re- dress against the author of the nuisances. As, for example, where a number of different owners have separate mills and water-powers along the banks of a stream, and some party wrongfully erects a dam or diverts the water, and by this unlawful act the property rights of each owner are injuriously affected in the same general manner, although in unequal amounts. The instances are numerous in which courts of equity have interfered, under these and analogous circumstances, avowedly on the ground of preventing a multiplicity of suits, and have given complete relief to all the injured proprietors by a single decree. ^ ^ The cases of § 257, 1 Cadigan v. Brown, 120 Mass. 493, 495; Ballou v. Inhabitants of Hopkinton, 4 Gray, 324, 328 ; Mi;rray v. Hay, 1 Barb. Ch. 59. 43 Am. Dec. 773; Reid v. Gifford, Hopk. Ch. 416, 419, 420; but see Marselis v. Morris Canal Co., 1 N. J. Eq. 31. In Cadigan v. Brown, 120 Mass. 493, 495, the §257, (a) This section is cited in following cases separate riparian Washington Co. v. Williams, 111 owners properly joined in a suit to H'ed. 801, 815, dissenting opinion of restrain the diversion or pollution of Sanborn, Cir. J.; Osborne v. Wis- the stream: Barham v. Hostcttor, consin Central E. Co., 43 Fed. 824, 67 Cal. 272, 7 Pac. 689; Churchill v. by Harlan, J.; also, in Brown v. At- Lauer, 84 Cal. 233, 24 Pac. 107; lantic & B. R. Co., 126 Ga. 248, 7 Foreman v. Boyle, 88 Cal. 290, 26 Ann. Cas. 1026, 55 S. E. 24. Pac 94; Middleton v. Flat R. B. §257, (b) The text is cited to this Co., 27 Mich. 533; Emery v. Erskine, effect in Watson v. Huntington, 215 66 Barb. 9; Lonsdale Co. v. Woon- Fed. 472, 131 C. C. A. 520. In the socket, 21 R. I. 498, 44 Atl. 929, and § 257 EQUITY JUEISPBUDENCB. 442 this group are exceedingly important in their bearing upon the question under examination as to the true meaning and plaintiffs were individual owners of separate lots abutting on a passage- way, each holding under a distinct title from a different grantor. Defend- ant began an erection which would permanently block up the passage and interfere with each plaintiff's right of way, and was therefore a nuisance. The plaintiffs brought this suit to restrain the further erection, and to remove the obstruction. Held, that the suit should be sustained, and that all the plaintiffs could join in one suit in equity on the ground of prevent- ing a multiplicity of suits, since at law each owner must biing a separate action. "The plaintiffs, although they hold their right under separate titles, have a common interest in the subject of the bill. They are affected in the same way by the acts of the defendant, and seek the same remedy against him. The rights of all parties can be adjusted in one decree, and a multiplicity of suits is prevented"; citing Ballou v. Hopkinton, and Murray v. Hay. In Ballou v. Inhabitants of Hopkinton, 4 Gray, 324, 328, the plaintiffs were individual owners of separate mills on the banks of a stream, and each drew a supply of water for his own mill from a dam higher up on the stream, which had been built by all of these proprietors. The defendants had begun to draw water from this dam, not removing or in any way interfering with the structure itself, but simply diverting the water, so that the supply for each mill was lessened, and might be rendered insufficient. It was held that the plaintiffs could join in one cases cited; Strobel v. Kerr Salt Co., Middlebury Electric Co., 80 Vt. 109, 164 N. Y. 303, 79 Am. St. Rep. 643, 11 L. R. A. (N. S.) 693, 66 Atl. 10o9 51 L. R. A. 687, 58 N. E. 142. In (flooding); Norton v. Colusa P. M. the last case the court says: "They & S. Co., 167 Fed. 202 (pollution), all have a common grievance against Owners of distinct lots abutting the defendant for an injury of the upon a street joined in suits to re- same kind, inflicted at the same strain common nuisances, in Geur- time and by the same acts. The kinli v. Petaluma, 112 Cal. 306, 44 common injury, although differing Pac. 570 (watercourse so diverted in degree as to each owner, makes as to interfere with plaintiffs' ease- a common interest, and warrants a ment in the street); Younkin v. Mil- common remedy.'' See the well-con- waukee Co., 112 Wis. 15, 87 N. W. sidered case of State v. Sunape© 861 (railway unlawfully constructed Dam Co. (N. H.), 55 Atl. 899, where in street; but see contra, Fogg v. the court was evenly divided on the Nevada C. V. E. Co., 20 Nev. 429, 23 question of jurisdiction to award Pac. 840) ; Sullivan v. Phillips, 110 damages in lieu of injunction. See, Ind. 320, 11 N. E. 300 (drain so con- also, the following recent cases: structed as to flood plaintiff's Hough V. Porter, 51 Or. 318, 95 Pac. lands). Other nuisances affecting 732, 98 Pac. 1083, 102 Pac. 728; Teel plaintiffs similarly: flooding plain- V. Rio Bravo Oil Co., 47 Tex. Civ. tiff's lands by deepening a certain App. 153, 104 S. W. 420; Cloyes v. ditch, Foot v. Bronson, 4 Lans. 47; 443 TO PREVENT A MULTIPLICITY OF SUITS. § 257 extent of the doctrine concerning the prevention of a multi- plicity of suits. At law, the only remedy was an action for equity suit, and restrain the defendants by injunction, in order to prevent a multiplicity of suits. In Murray v. Hay, 1 Barb. Ch. 59, 43 Am. Dec. 773, the plaintiffs were in like manner owners of separate dwellings, which were all injured by a single nuisance, of which the defendant was the author. It was held that they could all unite and obtain full relief of injunction and removal by one decree ; citing Kensington v. White, 3 Price, 164; Mills v. Campbell, 2 Younge & C. 389; Reid v. Gifford, Hopk. Ch. 416; Trustees of Watertown v. Cowen, 4 Paige, 510, 27 Am. Dec. 80. In Reid v. Gifford, Hopk. Ch. 416, the plaintiffs were in the same manner owners of separate parcels of land on a mill stream, and of separate water rights in such stream. Defendant owned another mill-site on the same stream. He had cut a ditch or canal, by which he diverted water from the stream, and thereby injured all the plaintiffs in the same manner, but in varying amounts. Plaintiffs united in this suit to obtain an in- junction, and to abate the nuisance. Their suit was sustained. It was expressly held that they all had such a community of interest in the subject- matter of the suit that they could join in the bill. It was further held that since they had long been seised in fee of their respective premises, and in undisturbed possession thereof, no verdict or judgment at law was necessary to establish their rights, and as a prerequisite to their invoking the aid of equity. establishing a cemetery, Jung v. affect all the complainants, not pre- Nerez, 71 Tex. 396, 9 S. W. 344; cisely at the same instant, and in erecting a wooden building within the same degree, but in the same the fire limits of a town, First Nat. general period of time, and in a Bank v. Sarlls, 129 Ind. 201, 28 Am. similar way, so that the same re- fit. Rep. 185, 13 L. R. A. 401, 28 N. E. lief may be had in the single 434 ("their common danger and com- suit, whether there be one, two, men interest in the relief sought or a dozen plaintiffs." See, further, authorizes them to join in the ac- American Smelting & Refining Co. v. tion") ; offensive manufacture, Blunt Godfrey, 158 Fed. 225, 14 Ann. Cas. v. Hay, 4 Sandf. Ch. (N. Y.) 362; 8, 89 C. C. A. 139 (nuisance from Whipple V. Guile, 22 R. I. 576, 4S noxious gases): Gus Blass Dry Atl. 935 (nuisance from noise), re- Goods Co. v. Reinman, 102 Ark. 287, viewing many eases; maintaining lu- 143 S. W. 1087 (livery-stable); natic asylum carelessly, Rowbotham Brown v. Atlantic & B. R. Co., Iii6 V. Jones, 47 N. J. Eq. 337, 20 Atl. Ga. 248, 7 Ann. Cas. 1026, 55 S. E. 731, reviewing the New Jersey cases 24 (persons living along the line of and concluding that "the meaning of a railroad united in a suit to enjoin the rule, so far as it permits several the company from tearing up its to join as complainants, is that all tracks and abandoning the line; the grievances complained of shall citing this paragraph). § 257 EQUITY JURISPKUDENCB. 444 damages by each owner against the author of the nuisance or trespass. It cannot be pretended that there existed among the various owners with respect to each other, or as between their entire body and the defendant, any com- mon bond or interest to which the term ''privity" can be applied, or which bore the slightest resemblance to any species of privity. In fact, there did not exist among them as individual owners, or between them as a body and the defendant, any distinct legal relation whatever which the law recognizes. The only common bond among them as individuals, or between them as a body and the defendant, consisted in the fact that they each and all suffered the same kind of wrong to their separate properties, arising at the same time and from the same tortious act of the defendant, and in the fact that the legal causes of action and remedial rights of each and all were the same, depend- ing upon similar matters of fact and the same rules of law. They were in exactly the same position as that of any body of men who have all separately and individually suffered the same kind of injury to their persons or their properties by one trespass or other wrongful act; only in their cases the subject-matter which directly received the injury — the parcels of land — and the wrong itself — the nuisance or con- tinued trespass — were of such a nature as brought them within the possible jurisdiction of equity, since a court of equity could never take jurisdiction in a case of mere wrong to the persons or the reputation of the injured parties. And yet in each decision it was expressly held that there was a sufficient community of interest in the subject-matter of the suit to enable a court of equity to exercise its juris- diction on behalf of the united plaintiffs. The conclusion, therefore, seems to me irresistible, that this group of de- cisions cannot be reconciled with that theory of the juris- diction which requires, in cases of the third and fourth classes, a privity of interest or common legal relation exist- ing among all the individuals of the body of persons who assert their separate claims against a single adversary 445 TO PREVENT A MULTIPLICITY OF SUITS. §257 party, in order that a court of equity may interfere on tlieir united behalf against him, or on his behalf against them.^ « § 257, 2 It may, perhaps, be said, in explanation of the judicial action in this group of cases, that on account of the continuous nature of the vfvong — the nuisance or trespass — each separate owner, in addition to his actions at law for damages, would be entitled to maintain a separate suit § 257, (c) This seems an appro- priate place to notice a criticism urged with much earnestness against the author's treatment of his "Thirtl and Fourth Classes," viz., that he has confused "distinct things in his view of this subject, to wit: joinder of parties, and avoidance of multi- plicity of suits. It has been found that many of the cases he pressed into service to support his assertion are on the subject of joinder, where confessedly there could be no doubt that the matter was of equity cogni- zance,'' etc. Tribette v. Illinois Central R. E. Co., 70 Miss. 182, 35 Am. St. Rep. 642, 19 L. R. A. 660, 12 South. 32, 1 Keener's Cas. Eq. Jur. 148, 2 Ames Cas. Eq. Jur. 74. It would seem that a very moderate degree of reflection should suflBce to show that a statement of the ac- cepted rules as to the joinder of parties is an essential and vital part of the author's arguments. It is conceded on all hands that the nu- merousness of parties is, under cer- tain circumstances, viz., the exist- ence of a "privity of interest" among them — an independent ground of equity jurisdiction. It has been established by eases innumerable that this "privity of interest" among numerous parties is not, as was once supposed, a requisite to their joinder in an ordinary suit in equity. Why, then, make it a requi- site to the jurisdiction based on numerousness of parties, and thus spply to cases within that jurisdic- tion a rule as to parties wholly arbi- trary and narrower than the rule aa to joinder of parties in other suitslf It is not the relation of privity among the parties that gives rise to the jurisdiction of a court of equity, but their multitude, and the facili- ties of the procedure in that court for joining them and disposing of all the numerous legal issues in a single equitable issue. In any logical view of the subject, the measure of the jurisdiction to enter- tain a bill of peace should be as broad as the measure of the court's ability, in accordance with its set- tled rules, to join the numerous par- ties in a single suit. Such is the nature of the author's argument, as the editor understands it; and, clearly, a most important link in the chain is the statement and proof of the modern rules as to joinder of parties, based, as these rules are, not on the relationship of the parties among themselves, but on their com- munity of interest in the questions involved in the suit. This identity between the rules as to joinder in all other equity actions, and the rules as to joinder which, as the author shows, guide the exercise ot the jurisdiction in bills of peace, is clearly recognized in Lehigh Valley R. R. Co. V. McFarlan, 31 N. J. Eq. 730, 759, 1 Keener's Cas. Eq. Jur. 133. "The question [of joinderj has generally arisen on demurrer to bills in causes of purely equitable cognizance. But in this respect there is no difference between such bills and bills of peace. A bill ot § 258 EQUITY JURISPRUDENCE. 446 § 258.a Distinct Proprietors Relieved from Local Assess- ments. — I pass now to consider another and even more in- teresting group of cases, which cliiefly belong, with one or two exceptions, to the judicial history of this country, and in which more than in any other has arisen the direct con- flict of judicial opinion already mentioned. I refer to cases brought by or on behalf of a body of individual tax-payers in equity on his own behalf, and thereby restrain the further wrong. It would be enough to answer that in no instance was the decision put upon any such ground. In every instance the court rested its decree upon the broad ground that the legal remedies of the individual plaintiffs were im- perfect, and that as there was a sufficient community of interest in the subject-matter among them, they could properly unite in the single equi- table proceeding, in order to prevent a multiplicity of suits. But even admitting the facts above stated to their fullest extent, they do not in the slightest degree alter or affect the conclusions reached in the text, nor furnish any different explanation of the action of the courts in exercising their jurisdiction. Even if each individual plaintiff would have had a right to equitable relief as well as to the legal relief of damages, the equitable jurisdiction to prevent a multiplicity of suits is never made to rest upon the particular kind or extent of relief which an individual party might otherwise have obtained in a separate suit. It always as- sumes that some relief, either legal or equitable, could have been thus obtained; and the only question, in cases of the third and fourth classes, is, whether there is a sufficient common bond among the body of similarly situated persons on the one side of the controversy to authorize the court to interfere and give complete relief to them or against them aU in one proceeding, and thus avoid a multiplicity of suits.* peace which shall draw within equi- table cognizance. 17 N. Y. 608, table cognizance causes of action Comstock, J." See, also, Williams v. which are purely legal in their char- County Court, 26 W. Va. 488, 516, acter, must conform to the rules 53 Am. Rep. 94. and principles of ordinary equity § 257, (d) This sentence of the pleading, and, in addition thereto, note is quoted by Parker, C. J., in must possess another element aris- Mack v. Latta (N. Y.), 71 N. E. 97. ing from the number of the parties § 258, (a) This and the two f ol- interested and the multitude of ac- lowing sections are cited with ap- tual or threatened suits. In such proval in Carlton v, Newman, 77 cases there must be such a unity of Me. 408, 415, 1 Atl. 194; Allen v. interest on the one side or the Intendant, etc., of La Fayette, 89 other, as would justify a joinder of Ala. 641, 9 L. E. A. 497, 8 South. 30. the parties in causes of purely equi- 447 TO PREVENT A MULTIPLICITY OF SUITS. § 259 or owners of distinct tracts of land to be relieved from il- legal assessments upon their separate properties, made by municipal corporations to defray the expense of local im- provements ; or from general taxes, either personal or made liens on property, unlawfully assessed and levied by coun- ties, towns, or cities ; or to set aside, annul, and be relieved from some unlawful public, official, and corporate act of a county, town or city, — by means of which a public debt would be created, and the burden of individual taxation would be ultimately increased. Those instances in which the jurisdiction has been exercised and the relief granted will alone be considered at present; those in which it has been denied to exist will be postponed to subsequent para- graphs, in which the general limitations upon the doctrine are examined. I shall take up first in order the cases of local assessments, and secondly, those of general taxes and of official acts creating public indebtedness and final taxa- tion. § 259. Relief from lUegaJ Taxes and Other Public Bur- dens in General. — There are numerous decisions to be found in the reports of several states of equity suits brought by land-owners to set aside illegal assessments or taxes laid upon their property, in which one court after another has repeated the formula that the suit would be sustained and the relief granted whenever it was necessary to remove a cloud from title, or to prevent a multiplicity of suits. In none of these cases is any attempt made to determine when the relief would be necessary or appropriate for the pur- pose of preventing a multiplicity of suits; and in most, if not all, of them the relief was refused and the suit dismissed expressly on the ground that it did not come within the equitable jurisdiction to prevent a multiplicity of suits. It is plain, therefore, that these decisions, notwithstanding the general formula which they all announce, do not affirma- tively define the extent of the jurisdiction; but their au- thority, so far as it goes, is opposed to the exercise of the § 260 EQUITY JURISPRUDENCB. 448 jurisdiction, under all ordinary circumstances, in tlie class of cases described.^ § 2Q0.^ I pass to a line of cases mucli more definite and direct in their bearing upon the questions under discussion. Assessments for local improvements by municipal corpora- tions are generally made a lien upon the lands declared to be benefited thereby; and where such is the case, the in- stances are numerous in which suits in equity brought by a number of individual owners of separate lots, or by one owner suing on behalf of himself and all the others similarly situated, to procure the enforcement and collection of the assessment to be enjoined, and the assessment itself to be set aside and annulled on account of its illegality, have been sustained upon the avowed ground that such relief granted* in a single proceeding was both proper and necessary in order to prevent a multiplicity of suits. In all these cases each separate land-owner had, of course, some kind of legal remedy, either by action for damages against the officer en- forcing the unlawful collection, or by writ of certiorari to review the assessment itself. But such remedy was inade- § 259, 1 Guest v. Brooklyn, 69 N. Y. 506, 512, 513; Heywood v. Buffalo, 14 N. Y. 534, 541; Mayor of Brooklyn v. Messerole, 26 Wend. 132, 140; Ewing V. St. Louis, 5 Wall. 413, 418, 419 ; Dows v. Chicago, 11 Wall. 108, 110, 111; Scribner v. Allen, 12 Minn. 148; Minnesota Oil Co. v. Palmer, 20 Minn. 468; White Sulphur Springs Co. v. Holley, 4 W- Va. 597; Bouton V. City of Brookl}^!, 15 Barb. 375, 387, 392; Harkness v. Board of Public Works, 1 McAr. 121, 131-133. In each of these eases the general proposi- tion was laid down as stated in the text, but in each the court refused to exercise jurisdiction and to give any equitable relief, on the ground that such a case does not come within the operation of the doctrine con- cerning a multiplicity of suits. In Guest v. Brooklyn, 69 N. Y. 506, 512, 513, it was further held that the assessment, being divided into a number of installments payable annually, did not bring the case within the doc- trine, because each lot-owner had a sufficient remedj* at law, and a decision on one installment would settle his liability as to all. §260, (a) This section is cited Keese v. City of Denver, 10 Colo, with approval in Dumars v. City of 113, 15 Pac. 825. Denver (Colo. App.), 65 Pac. 580; 449 TO PREVENT A MULTIPLICITY OF SUITS. §260 quale wlien compared with the comprehensive and complete relief furnished by the single decree in equity.^** The ju- § 260, 1 Ireland v. City of Rochester, 51 Barb. 415, 435; Scofield v. City of Lansing, 17 Mich. 437; City of Lafayette v. Fowler, 34 Ind. 140; Ken- nedy V. City of Troy, 14 Hun, 308, 312; Clark v. Village of Dunkirk, 12 Hun, 181, 187. In Ireland v. City of Rochester, 51 Barb. 415, about ninety owners of distinct lots on a certain avenue united in the suit to restrain the collection of an illegal and void assessment, made in different amounts on their lots by the city authorities, in a proceeding to improve the avenue. The assessment was held void, and the suit was sustained on the express ground that a multitude of suits was thereby prevented. Henry R. Selden, Esq., who was counsel for the plaintiffs, said (p. 420) : "If the collection had been proceeded with, more than eighty suits would have been necessary to accomplish what can better be done by this suit alone. Avoiding a multii^licity of suits is good ground for equity juris- §260, (b) Enjoining Municipal Assessments. — The conclusions of the author with respect to classes third and fourth were approved, and the principle applied to the en- joining of illegal special assess- ments, in Keese v. City of Denver, 10 Colo. 113, 15 Pac. 825, and in Dumars v. City of Denver (Colo. App.), 65 Pac. 580. In the latter case it is said: "While void proceed- ings cast no cloud upon title to real estate, and a single individual, mov- ing only in his own behalf, and for his own purposes, to restrain such proceedings, will be remitted to his remedy at law, yet where a number of persons are similarly affected, and the rights of all may be ad- justed in one proceeding, a court of equity will assume jurisdiction, not- withstanding there is no cloud to remove, and the ground of its juris- diction is the prevention of a multi- plicity of suits. [Citing several cases, and Pom. Eq. Jur., §§ 260, 273.] The complaint in this case shows that a number of persons are affected by the same assessment, and that to determine their rights at 1—29 law would require as many suits as there are individuals; and it also shows that, while they have no com- mon ownership in the property af- fected by the assessment, they have a community of interest in the ques- tions of law and fact involved in the controversy; and upon author- ity so overwhelming as to be prac- tically unanimous, the case is one peculiarly of equitable cognizance. See, also, Pom. Eq. Jur., § 269." In Michael v. City of St. Louis, 112 Mo. 610, 20 S. W. 666, the text was approved, but it was held by the majority of the court that the com- plaint did not set out such facts that it could be seen from the face of the pleadings that the questions of law to be decided were the same as to all the plaintiffs. See, fur- ther, in support of the text, Brizzo- lara v. City of Ft. Smith, 87 Ark. 85, 112 S. W. 181; Drainage Com'rs Dist. No. 2 v. Kinney, 233 HI. 67, 84 N. E. 34; Kvello v. City of Lis- bon (N. D.), 164 N. W. 305, citing the text; Coleman v. Eathbun, 40 Wash. 303, 82 Pac. 540. § 260 EQUITY JURISPRUDElSrCE. 45D risdiction has been carried mucli further. In a large num- ber of the states the rule has been settled in well-considered and often-repeated adjudications by courts of the highest character for ability and learning, that a suit in equity will be sustained when brought by any number of tax-payers joined as co-plaintiffs, or by one tax-payer suing on behalf of himself and all others similarly situated, or sometimes even by a single tax-payer suing on his own account, to en- diction." The argument of counsel is not often cited as authority. But all who know Mr. Selden will agree with me that no member of the bar of the state of New York had a more extensive knowledge of or a greater familiarity with the principles of equity jurisprudence and jurisdiction than he; and his intellect had that peculiar integi'ity which would not per- mit him to maintain as counsel any legal position which he did not thor- oughly believe as a lawyer. I esteem his opinion as a very strong evidence in support of the equitable jurisdiction in cases of this kind. Scofield v. City of Lansing, 17 Mich. 437, was a bill filed by a large number of owners of separate lots fronting on a street, to enjoin collection of an illegal assessment, which was declared by statute to be a lien on all the lands assessed. Pronouncing the assessment void, the court held that the suit could be sustained on the ground that the questions to be decided were common to all the plaintiffs, and it prevented a multiplicity of suits. City of Lafayette v. Fowler, 34 Ind. 140, in which the facts were similar, was decided in conformity with a general doctrine, which, as we shall see, is settled in that state with reference to all kinds of illegal taxes, assessments, and public burdens. In the recent cases of Kennedy v. City of Troy, 14 Hun, 308, 312, and Clark v. Village of Dunkirk, 12 Hun, 181, 187, upon facts similar to those in the Ireland case, the supreme court of New York held that a suit by one lot-owner suing on behalf of himself and all others in the same situation, to set aside an illegal assessment which was made a lien on their lands, would be sustained on the express ground that it came within the familiar jurisdiction of equity to grant relief for the purpose of preventing a multiplicity of suits. These decisions are the more emphatic because the courts of New York had previously held in many cases that the jurisdiction did not extend to suits brought by one or by many tax-payers to be relieved from ordinary, general, and personal taxes on the ground of their illegality. It is very evident that the proposi- tion stated in the text and the decisions cited in this note would be fol- lowed, and the owners of lots would be relieved from illegal municipal local assessments in all those states where the courts have exercised a like jurisdiction to relieve tax-payers from all kinds of taxes and public burdens which axe found to be illegal. 451 TO PREVENT A MULTIPLICITY OF SUITS. § 2G0 join tlie enforcement and collection, and to set aside and, annul, any and every kind of tax or assessment laid by county, town, or city authorities, either for general or special purposes, whether it be entirely personal in its na- ture and liability, or whether it be made a lien on the prop- erty of each taxpayer, whenever such tax is illegal ; and in like manner to set aside and annul any and every illegal public official action or proceeding of county, town, or city authorities, whereby a debt against such county, town, or city would be unlawfully created, the public burden upon the community would be unlawfully enhanced, and the amount of future taxation would be unlawfully increased; as, for example, unlawful proceedings of the municipal authorities to advance money or to loan the public credit to a railroad, or to bond the municipality in aid of a railroad, or to offer and pay bounties to soldiers, or to erect public buildings, and numerous other analogous proceedings which would necessarily result in a public debt and in taxation for its payment.*' In the face of every sort of objection urged against a judicial interference with the governmental and executive function of taxation, these courts have uniformly held that the legal remedy of the individual tax-payer against an illegal tax, either by action for damages, or per- haps by certiorari, was wholly inadequate; and that to re- strict him to such imperfect remedy would, in most in- stances, be a substantial denial of justice, which conclusion is, in my opinion, unquestionably true. The courts have therefore sustained these equitable suits, and have granted the relief, and have uniformly placed their decision upon the inherent jurisdiction of equity to interfere for the pre- vention of a multiplicity of suits. The result has demon- strated the fact that complete and final relief may be given to an entire community by means of one judicial decree, which would otherwise require an indefinite amount of sep- § 260, (c) Quoted and approved in County Court, 26 W. Va. 488, 53 County Court v. Boreman, 34 W. Va. Am. Rep. 94. 362, 368, 12 S. E. 490; Williams v. § 2G0 EQUITY JURISPRUDENCE. 452 arate litigation by individuals, even if it were attainable by any means.^ ^ In several of the states there is a long § 260, 2 Cases where the suit was by a number of tax-payers as co- plaintiffs, or by one suing on behalf of all others: Attorney-General v. Heelis, 2 Sim. & St. 67, 76; Newmeyer v. Missouri, etc., R. R. Co., 52 Mo. 81, 84-89, 14 Am. Rep. 391; Rice v. Smith, 9 Iowa, 570, 576; Stokes v. Scott Co., 10 Iowa, 166 ; McMillan v. Boyles, 14 Iowa, 107 ; Rock v. Wal- lace, 14 Iowa, 593; Ten Eyck v. Keokuk, 15 Iowa. 486; Chamberlain v. Burlington, 19 Iowa, 395; Williams v. Peinny, 25 Iowa, 436; Hanson v. Vernon, 27 Iowa, 28, 1 Am. Rep. 215; Zorger v. Township of Rapids, 36 Iowa, 175, 180 ; Board of Commissioners v. Brown, 28 Ind. 161 ; Lafayette V. Fowler, 34 Ind. 140; Noble v. Vincennes, 42 Ind. 125; Board of Com- missioners V. Markle, 46 Ind. 96, 103-105; Galloway v. Chatham R. R. Co., 63 N. C. 147, 149, 150; Brodnax v. Groom, 64 N. C. 244, 246, 247; Worth V. Board of Commissioners, 1 Winst. Eq. 70; Vanover v. Davis, 27 Ga. 354, 358; Mott v. Pennsylvania R. R. Co., 30 Pa. St. 9, 62 Am. Dec. 664; Sharpless v. Philadelphia, 21 Pa. St. 148, 59 Am. Dec. 759; Moers v. Reading, 21 Pa. St. 188; Bull v. Read, 13 Gratt. 78, 86, 87; Mayor of Baltimore v. Gill, 31 Md. 375, 392-395; Barr v. Deniston, 19 N. H. 170, 180; Merrill v. Plainfield, 45 N. H. 126, 134; New London v. Brainard, 22 Conn. 552, 556, 557; Webster v. Town of Harwinton, 32 Conn. 131, 140; Terrett v. Town of Sharon, 34 Conn. 105; Scofield v. Eighth School Dis- trict, 27 Conn. 499, 504; Colton v. Hanchett, 13 111. 615, 618; Robertson §260, (d) Enjoining Taxation; All. 962, 2 Ames Cas. Eq. Jur. 71; One or More Plaintiffs Suing on Be- Quimby v. Wood, 19 R. I. 571, 35 half of All Taxpayers.— The au- All. 149; McClung v. Livesay, 7 W. thor's and editor's notes are cited in Va. 329; Doonan v. Board of Educa- fawker v. City of Milwaukee, 133 tion, 9 W. Va. 246; Corrothers v. Wis. 35, 113 N. W. 417. The conclu- Board of Education, 16 W. Va. 527; sions of the text are supported by Williams v. County Court, 26 W. Va. the following cases: Greedup v. 488, 53 Am. Eep. 94; Blue Jacket v. Franklin County, 30 Ark. 101 ; Bode Seherr, 50 W. Va. 533, 40 S. E. 514. V. New England Inv. Co., 6 Dak. See, further, the recent cases: Drain- 499, 42 N. W. 658; Knopf v. First age Com'rs Dist. No. 2 t. Kinney, Nat. Bk., 173 111. 331, 50 N. E. 660; 233 111. 67, 84 N. E. 34; Gray v. City of Chicago v. Collins, 175 111. Foster, 46 Ind. App. 149, 92 N. E. 445,67 Am. St. Rep. 224, 49 L. R. A. 7; City of Houston v. Baker (Tex. 408, 51 N. E. 907; German Alliance Civ. App.), 178 S. W. 820. In Texas, Assur. Co, T. Van Cleave, 191 111. while the general doctrine appears 410, 61 N. E. 94; Carlton v. New- to be recognized, injunction will not man, 77 Me. 408, 1 Atl. 194; Clee v. lie after suits have already been Sanders, 74 Mich. 692, 42 N. W. 154; begun for the collection of taxes: Ranney v. Bader, 67 Mo. 476; Sher- McMickle v. Hardin, 25 Tex. Civ. man v. Benford, 10 R. I. 559; Mc- App. 222, 61 S. W. 322. In Arkan- Twiggan v. Hunter, 18 R. I. 776, 30 sas the jurisdiction is now expressly 453 TO PREVENT A MULTIPLICITY OF SUITS. § 260 series of these cases, extending through a considerable period of time, and it may well happen that in the earliest V. City of Rockford, 21 111. 451; Perkins v. Lewis, 24 111. 208; Butler v. Dunham, 27 111. 474; Drake v. Phillips, 40 111. 3S8, 393; Vieley v. Thomp- son, 44 111. 9, 13; Allison v. Louisville etc. R. R. Co., 9 Bush, 247, 252; Lane v. Schomp, 20 N. J. Eq. 82, 89 ; Noesen v. Port Washington, 37 Wis. 168. Cases where the suit was hy only one tax-payer, purporting to sue for himself alone: Board of Commissioners v. Templeton, 51 Ind. 266; Board of Commissioners v. McClintock, 51 Ind. 325, 328; Board of Commission- ers V. Markle, 46 Ind. 96, 103-105; Lafayette v. Cox, 5 Ind. 38; Nill v. Jenkinson, 15 Ind. 425; Coffman v. Keightley, 24 Ind. 509; Oliver v. Keightley, 24 Ind. 514; Nave v. King, 27 Ind. 356; Board of Commis- sioners V. McCarty, 27 Ind. 475 ; Harney v. Indianapolis etc. R. R. Co., 32 Ind. 244, 247, 248; English v. Smock, 34 Ind. 115, 7 Am. Rep. 215; Will- iams V. Peinny, 25 Iowa, 436 ; Hanson v. Vernon, 27 Iowa, 28, 1 Am. Rep. 215; Zorger v. Township of Rapids, 36 Iowa, 175, 180; Merrill v. Plain- field, 45 N. H. 126, 134; Webster v. Town of Haminton, 32 Conn. 131, 140 ; Terrett v. Town of Sharon, 34 Conn. 105 ; Prettyman v. Supervisors, 19 lU. 406, 71 Am. Dec. 230; Clarke v. Supervisors, 27 111. 305, 311; Tay- lor v. Thompson, 42 111. 9; Cleghorn v. Postlewaite, 43 111. 428, 431; Vieley conferred by the Constitution, 1874, to stop in a single suit in equity; art. 16, §13: Little Eock v. Prather, we have no means of ascertaining 46 Ark. 471; Taylor v. Pine Bluff, the number of tax-payers in Frank- 34 Ark. 603; Little Eock v. Barton, lin county, but may suppose that 33 Ark. 436; but was recognized they exceed two thousand. Of these previously: Greedup v. Franklin perhaps five hundred may be able to County, 30 Ark. 109. The necessity assert their rights at law, whilst fif- of the jurisdiction was stated with teen hundred, who pay less tax, are great force, in the case last cited: in moderate circumstances or too "These plaintiffs have sued in be- poor to employ counsel to stop the half of themselves and of the other payment of an erroneous tax ten tax-payers of the county; this they times less than it would cost to em- may do in a court of equity. But ploy counsel to prosecute their suit, suppose we send them back to a The mere suggestion of the situ?i- court of law, to assert their rights; tion, if left to redress at law, shows we know that at the common law that it in effect would amount to there can be no combination of par- a denial of redress to offer it to ties; each tax-payer must sue in his them. In such cases chancery will own right to recover the tax errone- interfere to prevent multiplicity of ously assessed against him. What suits." Eanney v. Bader, 67 Mo. a multiplicity of suits at law must 47(5, 480, by Norton, J.: "Equity be brought, in order to get redress will maintain jurisdiction to prevent for one injury which it is proposed multiplicity of suits, and no stronger §260 EQUITY JURISPRUDENCE. 454 decisions of such a series the court has stated the reasons for its judgment at large, and has expressly announced the principle of preventing a multiplicity of suits as the ground V. Thompson, 44 111. 9, 13 ; Allison v. Louisville etc. R. R. Co., 9 Bush, 247, 252. It should be observed that all of this latter group of cases arose in states where the courts had already decided that a suit by many tax-payers joined as plaintiffs, or by one suing on behalf of the others, would be sus- tained on the ground of preventing a multiplicity of suits, and they re- garded a suit by one tax-payer alone as substantially the same in its effect, and treated it in the same manner, citing the same precedents indiscrimin- ately in support of one or the other form. Indeed, in many of these latter cases, the court expressly said that the suit might be brought in either form, by many tax-payers joining as plaintiffs, by one suing on behalf case could be put for entertaining jurisdiction under this rule, than 13 presented, when one tax-payer for himself and all other tax-payers of a township or county, similarly inter- ested, brings his bill, asking the chancellor to put forth restraining process to prevent the imposition end collection of an authorized tax^ and thus settle in one suit, what it would take hundreds and, perhaps, thousands to do, if such relief were denied, and the parties subjected to the payment of such tax were driven, each one, to his action at law for redress." In Carlton v. Newman, 77 Me. 408, 1 Atl. 194, the conclusions of the author with re- Bpect to the third and fourth classes are approved and supported by quotations from many of the au- thor's cases, and from Woodruff v. North Bloomfield G. M. Co., 8 Sawy. 628, 16 Fed. 25, and Cummings v. Nat. Bank, 101 TJ. S. 157. The court says, by Virgin, J.: "More- over, it is generally held that a bill to restrain the collection of a tax cannot be maintained on the sole ground of its illegality. . . . There must be some allogation pre- senting a case of equity jurisdiction. . . . But we are of the opinion that when it appears that an entire school district tax is illegal because assessed without authority of law, a bill to enjoin its collection brought by all of the tax-payers of the dis- trict jointly on whose polls and es- tates the tax has been assessed, or by any number thereof on behalf of themselves and all the others simi- larly situated, may be sustained upon the ground of the inherent jurisdiction of equity to interpose for the purpose of preventing a multiplicity of suits; that although each tax-payer has some legal rem- edy, it is grossly inadequate when compared with the comprehensive and complete relief afforded by a single decree." Knopf v. First Nat. Bank, 173 HI. 331, 50 N. E. 660, by Cartwright, J.: "In a ease where a proposed tax is illegal, complete re- lief may be given to thousands of tax-payers by one decree, which would otherwise require an indefi- nite number of suits by different tax-payers who all have the same remedial right, and where the threatened tax would be an injury 455 TO PREVENT A MULTIPLICITY OP SUITS. §260 of its jurisdiction, while in the succeeding ones the judges have not thought it necessary to repeat the reasons and of the others, or by one suing alone. No distinction in principle was made between the three.® The case of Attorney-General v. Heelis, 2 Sim. & St. 67, 76, is important, since it shows that the doctrine was applied in exactly the same manner, under exactly analogous circumstances, by an English court of equity. A rate had been laid on a parish which was claimed to be illegal. The court held that as the inhabitants of the parish have a common interest to avoid the rate (i. e., a local tax), any one or more of them may sue oii behalf of himself and the other inhabitants to enjoin the enforcement of the rate. Newmeyer v. Missouri etc. R. R. Co., 52 Mo. 81, 84-89, is an instructive to aU alike. It is the only method of doing substantial justice by re- lieving the whole body of tax- payers, where each of them must otherwise maintain an action at the same time and on the same ground" reviewing the Illinois cases. In Williams v. County Court, 26 W. Va 488, 53 Am. Rep. 94, the whole sub ject was most exhaustively dis cussed, the author's cases re-exam ined, and his conclusions adopted save in a minor point which la noticed below, note (e). For tax cases of the author's fourth class, see jios^t § 261, note b. Class Fourth, (I), (b); of the sec- ond class, see ante, § 253, notes 2 and (c). Relief Against Acts of Municipal Corporations Whereby Public Bur- dens are Unlawfully Increased. — The author's treatment of this sub- ject is mentioned with approval in Allen v. Intendant, etc., of La Fay- ette, 89 Ala. 641, 9 L. R. A. 497, 8 South. 30; Macon, etc., R. E. Co. v. Gibson, 85 Ga. 1, 21 Am. St. Rep. 135, 11 S. E. 442; County Court v. Boreman, 34 W. Va. 362, 363, 12 S. E. 490, and in Dillon on Munici- pal Corporations (4th ed.), § 922, note. The jurisdiction of equity to interfere in such cases on behalf of the tax-payer is hardly questioned at the present day. See Pom. Eq. Rem. Comparatively few of the in- numerable recent cases which illus- trate this jurisdiction have inquired into its grounds; but the rationale of the doctrine advanced by Judge Dillon has frequently received the sanction of the courts, viz., that the relation of the inhabitants of a municipality to its governing body, for the purposes of equitable juris- diction, is analogous to that of the stockholders of a private corpora- tion to its board of directors. It is plain, however, that this analogy is not a perfect one. Injunction against the enforce- ment of an invalid municipal ordi- nance affecting many persons. See post, § 261, note b. Class Third, (I), (b). §260, (e) Quoted, Williams v. County Court, 26 W. Va. 488, 501, 53 Am. Rep. 94. The author's and editor's notes are cited in Cawker v. City of Milwaukee, 133 Wis. 35, 113 N. W. 417. In West Virginia the suit must be expressly in behalf of all the tax-payers: Id.; McClung v. Livesay, 7 W. Va. 329; Doonan v. Board of Education, 9 W. Va. 246; Blue Jacket, etc., Co. v. Schorr, 50 W. Va. 533, 40 S. E. 514. Com- § 260 EQUITY JURISPRUDENCE. 456 ground which had already been fully explained.* It is plain that the latter cases, no less than the former ones, are an authority for the doctrine under examination. In all these suits by lot-owners to be relieved from a local assessment, and by tax-payers to be relieved from a tax or burden of public debt, there is no pretense of any privity, or existing case. Being recent, the court had before it a large number of decisions, all the leading ones in -which the jurisdiction had been denied, as well as those in which it had been sustained. Its examination of these authorities was very full. The plaintiffs sued for themselves and all other tax-payers in the county of Macon, as owners of separate property, real and personal, to set aside a resolution or order of the county officials subscrilnng one hundred and seventy-five thousand dollars to the stock of the railroad, and to have the bonds issued by the county for the said amount canceled, on the ground that the whole proceeding was illegal, and would unlawfully increase taxation. The suit was sustained and the relief granted. In Lane v. Schomp, 20 N. J. Eq. 82, 89, which was also a suit on behalf of the tax-payers of a town to prevent an unlawful bonding of the town, the chancellor of New Jersey expressly held that the case was not controlled by the principle asserted in some decisions, and particularly described hereafter, that where an individual has suffered some injury from a public act, in coumion with all members of the same community or local district, he has no cause of action or remedial right enforceable in any court of justice. pare Knopf v. First Nat. Bank, 173 not, in set phrase, purport to be on 111. 331, 50 N. E. 660: "The right of behalf of all others having iiidi- each one is individual and separate, vidual and separate interests of the but the common relation has been same character." deemed sufficient to authorize the It has not seemed necessary to exercise of the power of equity add to the author's citation of cases either where the suit is by a num- from those states — Illinois, Indiana, ber of tax-payers on behalf of them- Iowa, etc. — which permit the injunc- selves and others similarly situated, tion of illegal taxation at the suit or by one suing on behalf of all of the single plaintiff on the mere others, or even where the suit is by ground of its illegality. For a fur- one suing for himself alone, where ther discussion of equitable relief the effect would be to settle the against taxation, and a statement rights of all. In this case the suit of the varying rules established in is to maintain the rights of the the different states, see Pom. Eq. stockholders [of the plaintiff], but Eem. the necessary effect is to determine § 260, (f ) Quoted, Williams v. the right of every tax-payer in the County Court, 26 W. Va. 488, 502, 53 district, and it would be an irrele- Am. Rep. 94. vant distinction that the bill does 457 TO PREVENT A MULTIPLICITY OF SUITS. § 261 legal relation, or common property or other right, among the plaintiffs individually, or between them as a body and the defendant. There is no common right of the single ad- versary party against them all, as is found in the case of a parson against his parishioners for tithes, or of the lord of a manor against his tenants for a general fine, or for certain rights of common; nor is there any common right or interest among them against their single adversary. The only community among them i^ in the questions at issue to be decided by the court; in the mere external fact that all their remedial rights arose at the same time, from the same wrongful act, are of the same kind, involve similar questions of fact, and depend upon the same questions of law.g This sort of community is sufficient, in the opinion of so many and so able courts, to authorize and require the exercise, under such circumstances, of the equitable juris- diction, in order to prevent a multiplicity of suits. §261. Other Special Cases of the Third and Fourth Classes.^ — There are some other cases, belonging to the third or fourth of my general classes, which present a special condition of facts, and do not admit of being ar- ranged in either of the foregoing groups. I have placed them in the f oot-note.^ ^ §261, IBrinkerhoff v. Brown, 6 Johns. Ch. 139, 151, 156; New York & N. H. R. R. V. Schuyler, 17 N. Y. 592, 599, 600, 605-608, 34 N. Y. 30, 44-46; but see County of Lapeer v. Hart, Harr. (Mich.) 157. In Brinker- hoff V. Brown, 6 Johns. Ch. 139, which was a bill by a number of individual judgment creditors, having wholly distinct and separate judgments and demands, to reach the property of their common debtor. Chancellor Kent said (p. 151) : "The plaintiffs are judgment creditors at law, seeking the §260, (g) (Quoted with approval, §261, (b) In arranging the very Michael v. City of St. Louis, 112 numerous recent cases illustrating Mo. 610, 20 S. W. COG. classes third and fourth, the editor §261, (a) This section is cited in has collected, in each class, first, Enright v. Graut, 5 Utah, 334, 15 cases where the prevention of a Pac. 268, a case of the "third class"; multiplicity of suits was the sole also in City of Iloustou v. Kichter ground of equitable jurisdiction, or (Tex. Civ. App.), 157 S. "W. 189, a was relied on by the court as an in- case of the "third class.'' dependent ground of jurisdiction; §262 EQUITY JURISPRUDENCE. 45S § 262. Opposing Decisions Examined. — Thus far tlie dis- cussion has been chiefly confined to the various instances in which the jurisdiction has been established, upheld, and con- firmed; I now proceed to consider the opposite side of the question, and to examine those groups of cases in which the aid of this court to render their judgments and executions effectual against certain fraudulent acts of their debtor equally affecting all of them. The question is, whether judgment creditors, whose rights are established and their liens fixed at law, may not unite in a bill to remove impediments to the remedy created by the fraud of the opposite party. It is an ordinary case in this court for creditors to unite, or for one or more on behalf of themselves and the rest, to sue the representative of the debtor in posses- sion of the assets, and to seek an account of the estate. This is done to prevent a multiplicity of suits, a very favorite object with this court." And at page 156: "A bill may be filed against several persons relative to matters of the same nature, forming a connected series of acts, and all intended to defraud and injure the plaintiff, and in which all the defend- ants were more or less concerned, though not jointly, in each act." This opinion of Chancellor Kent shows that the uniting of numerous distinct judgment creditors in one creditor's suit against the same defendant, or the suing by one such creditor for himself and all others, which has now become so familiar a mode of obtaining relief, was originally permitted and adopted on the ground of preventing a multiplicity of suits. This second, cases where other grounds of jurisdiction appear to exist, and the question is chiefly one of joinder of parties. Cases in the first groups, of course, afford stronger proof of the existence of the jurisdiction than those in the second. In some instances, however, it is difficult to determine to which group the case is properly assignable, for the obvi- ous reason, that if the doctrine is accepted as a ground of jurisdiction, it is immaterial to the court, in its decision of the case, whether the separate causes of action consol- idated therein are legal or equitable in their nature; see a7ite, notes at end of § 257. Third Class. (I), Cases Where the Multiplicity of Suits Conferred Jurisdiction or Warranted Its Exer- cise. — (a) Actions at Law Against Numerous Parties, where each had the same defense, enjoined: Defend- ant, a railroad, claiming certain land under a land grant act, brought or threatened to bring separate ac- tions of ejectment against the plain- tiffs, who were in possession of separate tracts and claimed to be owners thereof under the home- stead and pre-emption laws. By Harlan^ J.: "They have thus a com- munity of interest in the questions of law and fact upon which the is- sue between the railroad company and each plaintiff depends. The company's claim is good or bad against all the plaintiffs, as it may be good or bad against any one of them; and yet a judgment in favor of one, in an action of ejectment 459 TO PREVENT A MULTIPLICITY OF SUITS. § 262 jurisdiction has either been positively denied under the same circumstances in which it had been asserted and exer- faet is of gi-eat importance in illustrating the meaning and extent of that doctrine; since the only bond of union among the separate creditors is their community of interest in the relief demanded, in the questions at issue and decided by the court.* New York & N. H. R. R. Co. v. Schuyler, 17 N. y. 592, was certainly one of the most remarkable actions recorded in the annals of litigation. Schuyler, the treasurer of a railroad com- pany, had during a period of two or three years fraudulently issued spurious certificates of stock of the company, until at last such certificates were scattered among about one hundred bona fide holders. Each fraudu- lent issue was accomplished by a similar contrivance and similar acts of deception ; but each was, of course, an entirely distinct and separate trans- action from all the others. The railroad, claiming that these certificates were null and void, brought this suit against all the holders for the pur- pose of having them surrendered up and canceled. The suit was sustained by analogy to a bill of peace, in an elaborate opinion of the court which is too long for quotation. See 17 N. Y. 592, 599, 600, 605-608, 34 N. Y. 30, 44-46. Here the only pretense of common interest among the certifi- cate-holders was in the similar questions of fact and the same question of law at issue upon which all their claims depended; there was no common title from which these questions sprung, nor any community of interest in the subject-matter. See, also, the recent and strongly analogous case of Sheffield Water Works v. Yeomans, L. R. 2 Ch. 8, 11; ante, note to § 256; and Black v. Shreeve, 7 N. J. Eq. 440, 456, 457; ante, note to § 252; and Board of Supervisors v. Deyoe, 77 N. Y. 219, 225. brought by the company, would not similar case of Lovett t. Prentice, avail the others in separate actions 44 Fed. 459, quoting this chapter, of ejectment against them. The Suits by one insured against numer- case is peculiarly one in which the ous insurance companies were en- jurisdiction of a court of equity joined, where each had the defense may be invoked in order to avoid a that its policy was obtained by the multiplicity of suits [citing Pom. same fraudulent misrepresentations Eq. Jur., §§ 245, 255, 257, 268, 269, of the insured: Virginia-Carolina 273]. The fact that the several Chemical Co. v. Home Ins. Co., 113 tracts of land here in dispute were Fed. 1 (C. C. A.), citing this chap- entered at different dates, and by ter, S. C, 109 Fed. 681; see, also, different persons, is of no conse- American Cent. Ins. Co. v. Landau, quence, as the validity of each 56 N. J. Eq. 513, 39 Atl. 400, by Pit- entry, as against the railroad com- ney, V. C, quoting or citing this pany, depends upon precisely the . same questions of law and fact": §261, (c) The author's note is Osborne v. Wisconsin Central R. Co., cited in the similar case of Enright 43 Fed. 824, 826, 827. See, also, the v. Grant, 5 Utah, 340, 15 Pac. 270. §262 EQUITY JURISPRUDENCE. 4G0 cised by tlie authorities previously quoted, or has been care- chapter and reviewing many cases: Rochester German lus. Co, v. Schmidt, 126 Fed. 998; Tisdale T. Insurance Co. of North America, 84 Miss. 709, 36 South. 568. To the same effect, see Dixie Fire Ins. Co. V. American Confectionery Co., 124 Tenn. 247, 34 L. R. A. (N. S.) 897, 136 S. W. 915, with exhaustive re- view of cases. (b) Injunction Against the En- forcement of an Invalid Municipal Ordinance affecting many persons. In City of Chicago v. Collins, 175 111. 445, 51 N. E. 904, 2 Ames Cas. Eq. Jur. 92, numerous residents and tax-payers sued in behalf of them- selves and all others similarly sit- uated to enjoin the enforcement of an ordinance providing for the pay- ment of a license fee on vehicles. The court, quoting § 245 of the text, and upholding the injunction, says in part: "In this case three hundred and seventy-three complainants pre- sent facts showing that between 200,000 and 300,000 citizens and tax- payers are affected by the provi- sions of the ordinance, and if com- pelled to pay the illegal tax, hard- ship and injustice will result to an enormous number of persons. If they pay the tax and are compelled to resort to a court of law to re- cover back the amount so paid, the business of the courts will be ob- structed by the number of actions of the same character. Long delay will ensue, and the costs to the per- sons so paying such illegal tax or license fee will be greater than the amount to be recovered." See, also, the similar cases of Wilkie v. City of Chicago, 188 111. 444, 80 Am. St. Rep. 182, 58 N. E. 1004; and the re- cent cases: Brizzolara v. City of Fort Smith, 87 Ark. 85, 112 S. W. 181 ^ordinance requiring property own- ers to construct sidewalks, etc.; rely- ing on §§ 255, 269 of the text); Grossman v. City of Indianapolis, 173 Ind. 157, 88 N. B. 945, 89 N. E. 262 (ordinance regulating business of junk dealers) ; City of Houston v. Eichter (Tex. Civ. App.), 157 S. W. 189 (plumbers). (c) Injunction Against Trespass, or Other Wrongful Act of the De- fendant, Affecting Numerous Plain- tiffs, where each suing singly might have an "adequate" remedy at law: Suit by a number of importers of tea which was about to be destroyed by the collector of customs under color of a statute alleged by the plaintiffs to be unconstitutional. Though damages would be an ade- quate compensation to each plaintiff for any loss which he would sustain by reason of the destruction of the tea, and though each has a separate and distinct interest in the tea, they have "a common interest in the question whether the defendant is authorized by law to destroy such tea": Sang Lung v. Jackson, 85 Fed. 502. Numerous owners of fishing interests in a lake united in a suit to enjoin an unauthorized and ille- gal act of certain commissioners, in opening a channel between the lake and the ocean. It did not appear that the threatened act would cause any of the plaintiffs such damage as to justify an injunction at his single suit. "The principal, if not the only, ground upon which the court can properly take jurisdiction in this case is that there are many parties plaintiff, all of whom, as land-owners on Great Pond, have the same rights, which can be set- tled in one action in equity, so as to avoid a multiplicity of suits at 461 TO PREVENT A MULTIPLICITY OF SUITS. §262 fully explained, restricted, and limited within strict and law. Upon that ground it seems to be our duty to determine tlie rights of the parties in this form of pro- ceeding." Smith V. Smith, 148 Mass. 1, 18 N. E. 595, 2 Ames Cas. Eq. Jur. 64. An interesting illustration of "class third" is found in Breimeyer V. Star Bottling Co., 136 Mo. App. 84, 117 S. W. 119. This was a suit to enjoin the use by the defendant, in selling its beverages, of bottles belonging to numerous unrelated plaintiffs, bearing their respective trade names. Actions at law to re- cover the bottles or their value would be innumerable. Avoidance of a multiplicity of suits was the sole ground of jurisdiction. (d) Injunction Against Breach of Contract affecting numerous parties. A contract by a city with a gas com- pany, authorizing the use of the city's streets, fixed maximum rates to be charged its inhabitants. Jurisdiction of a suit to enjoin en- forcement of excessive rates was rested chiefly on the ground of the avoidance of a multiplicity of suits by the inhabitants against the gas company, and the city was held a proper party to sue as representa- tive of its inhabitants. Muncie Natural Gas Co. v. City of Muncie, 160 Ind. 97, 66 N. E. 436, 441, citing this chapter. (e) Cancellation in Favor of Nu- merous Plaintiffs. — Promissory notes were obtained from fifty-seven per- sons by the defendant's same fraud- T-ilent misrepresentation. A suit by these persons to cancel their several notes was sustained, jurisdiction be- ing rested on the grounds main- tained by the author. Ilightower v. Mobile, J. & K. C. E. R. Co. (Miss.), 36 South. 82. The situation here is the converse of that stated post, in this note, Class Fourth (e). So, where a number of persons had guaranteed a note, each in a sep- arate amount, and all relied on a common defense to defeat recovery on the note, they were permitted to join in a suit to cancel the note: Webb V. Cope (Mo.), 192 S. W. 934, citing § 269 of the text. (f) Pecuniary Relief to Numerous Plaintiffs.— In Smith v. Bank of New England, G9 N. H. 254, 45 Atl. 1082, 2 Ames Cas. Eq. Jur. 79, the holders of numerous certificates of deposit were permitted to join in an action charging the defendants with a negligent breach of trust affecting them all alike, although each plain- tiff might maintain his action at law for damages; since the "ques- tion of the defendant's negligence would be exactly the same in all the actions and would necessarily be de- termined upon the same evidence." See extract from the opinion of the court, post, § 267, note. See, also, the somewhat similar case of Boyd V. Schneider (C. C. A.), 131 Fed. 223, reversing 124 Fed. 239, and re- lying on the author's text, § 245 (suit by numerous depositors in bank against negligent directors). See, further, the recent cases: Slater Trust Co. v. Randolph Macon Coal Co., 166 Fed. 171 (suit by bond- holder in behalf of himself and others against directors for fraud in inducing purchase of bonds); Blumer v. Ulmer (Miss.), 44 South. 161 (suit by several depositors against directors of a bank for de- ceit in inducing deposits when the bank was insolvent; the cause of ac- tion of each depositor individually being purely legal). In Washington County V. Williams, 111 Fed. 801, S262 EQUITY JURISPRUDENCE. 462 narrow bounds. I shall follow the same order as before, 49 C. C. A. 621, numerous separate owners of a certain issue of county bonds joined in a suit to have their validity established and a part pay- ment of the sums due on each made from the fund in the county treas- ury. It was held in the dissenting opinion of Sanborn, Cir. J., that since the "only point of litigation is a common one," viz., whether or not the issue of the bonds was author- ized by the statutes of Nebraska, and since "the complainants' rights and causes of action arise from a common source — from the act of the county in issuing the bonds, . . . involve similar facts . . . are gov- erned by the same legal rules . , . the case falls far within the familiar rule which has been quoted from Pomeroy"; citing the text, §§ 245, 255, 257, 268, 269, 273. For the de- cision of the majority of the court, distinguishing the case from the operation of the principle, see post, § 267, note. The principle of the "third class" has sometimes been invoked in sup- port of a suit by numerous plaintiffs claiming to share ratably in a fund of limited amount; Pennefeather v. Baltimore Steam Packet Co., 58 Fed. 481, quoting § 245 of the text. But there seems to be here some miscon- ception as to the particular doctrine discussed by the author. It is true that in cases like the one last men- tioned the jurisdiction depends in part upon the existence of several plaintiffs, but its exercise does not depend on the existence in favor of each plaintiff of the same question of fact or of law. Each plaintiff's right may be, not merely distinct, but different, and require a separate issue for its establishment. Indeed; the cases in question present little. if any, analogy with bills of peace. The jurisdiction is exercised because of the difficulty or impossibility of effecting an apportionment of the fund in separate suits at law. See Snowden v. General Dispensary, 60 Md. 85, and the recent case, Guf- fanti V. National Surety Co., 196 N. Y. 452, 134 Am. St. Rep. 848, 90 N. E. 174, quoting § 269 of the text. Familiar illustrations are found in suits by creditors of a corporation to enforce the liability of the direc- tors or stockholders for its debts, where that liability is limited in amount, and is treated as a fund for the benefit of all the creditors. Bauer v. Piatt, 72 Hun, 326, 25 N. Y. Supp. 426; Pfohl v. Simpson, 74 N. Y. 137; Barton Nat. Bank v. At- kins, 72 Vt. 33, 47 Atl. 176. II. Joinder, Where Each of the Numerous Plaintiffs has an Equi- table Cause of Action. — In addition to the class of cases described above, § 257, see the following analogous cases: In the states where the ille- gality of a tax clouding the plain- tiff's title is a ground for enjoining its collection at the suit of a single plaintiff, owners of separate tracts who are alike affected by the illegal- ity may unite as plaintiffs: Bobbins V. Sand Creek T. Co., 34 Ind. 461; Brandriff v. Harrison Co., 50 Iowa, 164; Thomas v. Moore, 120 Mich. 535, 79 N. W. 812; Bull v. Read, 13 Gratt. 79. Numerous foreign insur- ance companies affected by the act of the insurance commissioner in threatening to revoke their licenses to do business may join in an action for an injunction, on account of their common interest in the ques- tion involved; Liverpool & L. & G. Ins. Co. V. Clunie, 88 Fed. 160, 167, citing this chapter. Other injunc- 463 TO PREVENT A MULTIPLICITY OF SUITS. §262 arranging all the cases in the four classes described in a preceding paragraph. tion cases: A board of education ^yas enjoined from excluding from school, on the ground of non-resi- dence, the inmates of an orphan asylum, the case of each plaintiff presenting the same questions of law and fact: Ashley v. Board of Education, 275 111. 274, 114 N. E. 20. The several lot-owners in a cemetery having a common interest in its decent and proper mainte- nance, one may sue in behalf of all where an injury is threatened to the cemetery and the monuments and dead bodies therein: Chew v. First Presbyterian Church of Wilmington, 237 Fed. 219, quoting § 245 of the text. A number of railroads, each of which is threatened with re- peated actions for recovery of a statutory penalty for its failure to display on a bulletin-board the times of the arrival and departure of trains, may join in a suit to enjoin these actions: Guice v. Illinois Cen- tral E. Co., Ill Miss. 36, 71 South. 259. Several persons who by the same fraudulent misrepresentations are induced to subscribe for stock in a corporation may join in an action to set aside their subscriptions and recover moneys paid thereon; Bosher V. Eichmond H. Land Co., 89 Va. 455, 37 Am. St. Eep. 879, 16 S. E. 360, citing § 269 of the text; Carey V. Coffee-Stemming Mach. Co. (Va.), 20 S. E. 778, citing § 269 of the text; Hamilton v. American Hulled Bean Co., 143 Mich. 277, 106 N. W. 731 (said to be immaterial whether the representations are made to the prospective shareholders at the same time or to them separately at dif- ferent times, provided the repre- sentations are identical) ; so, two plaintiffs who were induced by the same fraud to sell their stock may join in a bill to rescind the sale; Bradley v. Bradley, 165 N. Y. 183, 58 N. E. 887; citing this chapter and many cases. Joinder of plaintiffs deriving title from a common source in a suit to quiet title; Prentice v. Duluth Storage Co., 58 Fed. 437; or to remove a cloud on their title; Dart v. Orme, 41 Ga. 376. Wliere the re- cording of a quitclaim deed would cast a cloud on the title of hundreds of land-owners, one plaintiff was per- mitted to bring a suit in behalf of all, in Tucker v. Wadlow (Mo.), 184 S. W. 69. Joinder in a creditor's bill of plaintiffs who have recovered separate judgments against their common debtor; Sheldon v. Packet Co., 8 Fed. 769 (Harlan, J.); En- right v. Grant, 5 Utah, 334, 15 Pae. 268, citing note to this section. Bill by all the creditors of an insolvent, Or some in behalf of the rest, to en- force a trust; Libby v. Norris, 142 Mass. 246, 7 N. E. 919. Bill by one bondholder in behalf of others to enforce a trust under a reorganiza- tion agreement; Indiana, I. & I. E. Co. V. Swannell, 157 111. 616, 30 L. E. A. 290, 297, 41 N. E. 989, cit- ing § 269 of the text. Stockholders in a corporation were allowed to join in an action for equitable re- lief, where the majority were pur- suing an illegal course, although their interests in the subject-matter of the litigation were separate, and not joint; Barr v. N. T., etc., E. E. Co., 96 N. Y. 444. One or more stockholders of a mutual insurance company may on behalf of all bring a suit to set aside the appointment of an assignee, and to cancel assess- ments, and for other relief. Corey v. Sherman, 96 Iowa, 114, 32 L. E. A. §263 EQUITY JURISPRUDENCE. 464 § 263. In the First and Second Classes. — As tlie doctrine 490, 509, 64 N. W. 828', quoting § 2G9 of the text. Class Fourth. (I) Cases Where the Avoidance of a Multiplicity of Suits Conferred Jurisdiction or War- ranted Its Exercise. — (a) Injunction Against Numerous Defendants Pros- ecuting Suits at Law. — Sundry own- ers of property abutting on a street occupied by the tracks of the com- plainant railroad brought suits at law for damages resulting to them from the construction and operation of the railroad, claiming that it was a mere trespasser in the street. The complainant, asserting a charter from the state to occupy the street, brought an action in the nature of a bill of peace to enjoin these suits and determine its rights; the bill was upheld on the ground of avoid- ing a multiplicity of suits; Guess v. Stone Mountain I. & R. Co., 67 Ga. 215, and the similar case of South Carolina R. Co. v. Steimer, 44 Ga. 546. Illinois Central R. Co. v. Gar- rison, 81 Miss. 257, 95 Am. St. Rep. 469, 32 South. 996, appears to be a case of the same general character, so far as may be judged from the imperfect statement of facts. Com- plainant claimed the right to over- flow, by means of its dam, the lands of the numerous defendants, under a dedication by the defendant's predecessors in title; held, that it might properly bring its bill to es- tablish this right and enjoin actions at law for damages brought by the defendants, citing the text, § 268; Mayor of York v. Pilkington, 1 Atk. 282, and other cases. The court also indicated that it was the proper practice in such cases to issue a tem- porary writ enjoining each of the defendants from further prosecution of Mb action at law during the pendency of the equitable action. "No constitutional rights of defend- ants are taken away by the mere postponement of their actions at law; for if plaintiff is herein suc- cessful they are not entitled to an assessment of damages, and if un- successful the actions at law will duly proceed": City of Albert Lea v. Nielsen, 83 Minn. 246, 86 N. W. 83; same litigation, City of Albert Lea V. Davies, 80 Minn. 101, 81 Am. St. Rep. 242, 82 N. W. 1104, and State v. District Judge, 85 Minn. 215, 88 N. W. 742. The receiver of a na- tional bank brought an action in the nature of a bill of peace against numerous holders of pass-books is- sued by a savings bank in the name of the national bank. Several of the defendants had brought suits against the plaintiff, each present- ing the common question of the au- thority of the savings bank to bind the national bank. It was held that the bill of peace was properly brought, though the defendants' claims each arose from an entirely separate and distinct transaction; citing the text, §§ 255, 269, 274, and reviewing the New York cases; Kel- logg V. Chenango Valley Sav. Bank, 42 N. Y. Supp. 379, 11 App. Div. 458. A large number of actions were brought by policy-holders in a bene- ficial association, each involving the right to raise the rate of assess- ment; on account of the single ques- tion of law involved, equity took jurisdiction to consolidate the ac- tions and enjoin their further pros- ecution in the court of law: Su- preme Lodge of Fraternal Union of America v. Ray (Tex. Civ. App.), ]06 S. W. 46 (an instructive case; citing various paragraphs of the text). See, also, Smyth v. Ames, 465 TO PREVENT A MULTIPLICITY OF SUITS. §263 of preventing a multiplicity of suits has been firmly estab- 169 U. S. 466, 18 Sup. Ct. 418, an ac- tion brought by railroad companies to test the validity of a statute regulating rates, where "the trans- actions of a single week would ex- pose any company questioning the validity of the statute to a vast number of suits by shippers, to say nothing of the heavy jjenalties named in the statute"; Dinsraore v. Southern Express Co., 92 Fed. 714, a similar case, and Haverhill Gaslight Co. V. Barker, 109 Fed. 694, injunc- tion against state officers fixing rates for gas, where the action of the officers would involve the plain- tiff in a multitude of suits with its customers; Jordan v. Western U. T. Co. (Kan.), 76 Pac. 396. See, also, the similar recent cases, where an ordinance or statute exposed a pub- lic service company to numerous suits by its patrons, workmen, etc.; Chicago City Ey. Co. v. City of Chi- cago, 142 Fed. 844; Ozark-Bell Tele- phone Co. v. City of Springfield, 140 Fed. 666 (enjoining ordinance fix- ing rates, where company had two thousand and fifty subscribers whose contracts might be subject of suit, and would be liable to prosecution and fine in case of each); Illinois Central R. Co. v. Baker, 155 Ky. 512, 49 L, K. A. (N. S.) 496, 159 S. W. 1169 (a well-considered case, quot- ing § 245 of the text. A statute imposed penalties on railroad compa- nies for failure to furnish cars. Nu- merous workmen — miners — brought suits to collect penalties in small amounts, claiming under the stat- ute, because the shortage in cars threw them out of employment. The company obtained an injunc- tion against them because they had no legally enforceable demand, and because of the multiplicity of suits; 1—30 the court distinguishing the cases where the plaintiffs at law have sep- arate, meritorious causes of action); Southern Pacific Co. v. Robinson, 132 Cal. 408, 12 L. R. A. (N. S.) 497, 64 Pac. 572 (suit to enjoin and con- solidate several hundred actions at law against a railroad company for refusal to comply with a statute re- quiring it to issue* tickets with stop- over privileges, where the tickets were bought by persons who did not clesire to exercise such privilege, but merely to enforce the penalties for its refusal). In National Park Bank v. Goddard, 62 Hun, 31, 16 N. Y. Supp. 343, 2 Ames Cas. Eq. Jur. 82; affirmed, 131 N. Y. 503, 30 N. E. 566, 1 Keener Cas. Eq. Jur. 142, the plaintiff, claiming a lien by . at- tachment on a stock of goods, en- joined numerous replevin suits sub- sequently brought for the recovery of different portions of the stock by numerous defendants, jurisdiction being taken on the ground of pre- venting a multiplicity of suits. In the striking case of Southern Steel Co. V. Hopkins, 157 Ala. 175, 131 Am. St. Rep. 20, 16 Ann. Cas. 690, 20 L. R. A. (N. S.) 848, 47 South. 274, the facts are thus stated by the court: An explosion occurred in a mine owned by the complain- ant's predecessor, by which one hun- dred and ten persons lost their lives, and one hundred and ten separate suits were brought by their repre- sentatives to recover damages for alleged negligence by the owner of the mine, by which the accident oc- curred. Complainant, alleging that it had a perfect defense applicable alike to all these suits, filed its bill to enjoin actions at law until this defense could be determined. The §263 EQUITY JURISPRUDENCE. 466 lished from an early day, with respect to the facts and cir- allegations showed that it would be impossible for the complainant to properly present the defense^ at law, because many of the cases would be on trial in different courts at the same time, and the expenses and costs of the litigation at law would be ruinous, though successful against every plaintiff. In an able opinion by Tyson, Ch. J.,- pointing out the practical necessity of the jurisdic- tion for the speedy and economical administration of justice, the bill was sustained; following earlier Alabama cases, distinguishing Tur- ner V. Mobile, 135 Ala. 73, 77, 33 South. 132 (anfe, §2511/2, note (e)), and declining to follow Tribette v. Illinois Cent. R. Co., 70 Miss. 182, 35 Am. St. Rep. 642, 19 L. R. A. 660, 12 South. 32 {post, §264, note (b). On a second appeal, however, the deci- sion was reversed and the bill dis- missed: See post, § 264, note (b); the relief sought by the amended bill in- cluding a trial in the equity suit of the numerous issues as to damages, in case the company should be found to have no defense. In Whitlock v. Yazoo & M. V. R. R. Co., 91 Miss. 779, 45 South. 861, a number of suits had been in- stituted by passengers on the com- plainant's train, alleging that they were unreasonably delayed through the negligence of the complainant. and demanding actual and punitive damages; the complainant brought its bill to enjoin the maintenance of these suits, praying that they might be ordered to be tried in one trial in the chancery court. The bill was sustained. It does not appear from the very brief report of the case that the complainant set up any common defense to the suits at law; if this was the fact, the bill clearly comes within the condemnation of the principle explained in§251i/^, ante, and should have been dis- missed. (b) Injunction Against Tax Pro- ceedings which involve the single plaintiff in litigation with numer- ous parties. The situation in these cases is the converse of that de- scribed in §§ 258-260, supra. Where a bank or other corporation is re- quired by law to pay the taxes as- sessed on all of its shares, and re- imburse itself by withholding pro- portionate parts of the dividends from its shareholders, it may enjoin an illegal tax, since its payment thereof would subject it to a suit by each shareholder: Cummings v. Mer- chant's Nat. Bank, 101 U. S. 153; followed in Hills v. National Albany Exch. Bank, 105 U. S. 319, 5 Fed. 248; Albany City Nat. Bank v. Maher, 19 Blatchf. 184, 6 Fed. 417; Whitney Nat. Bank v. Parker, 41 Fed. 402; Third Nat. Bank v. Mylin, 76 Fed. 385; also, Charleston Na- tional Bank v. Melton, 171 Fed. 743. By the practice in many of the states, taxes on railroad companies, telegraph companies, and the like are assessed by a state board on all the property of the company within the state, and proportionate parts of these taxes are certified for collec- tion to the tax officials of the vari- ous counties in which the company operates. An illegality in the as- sessment by the state board may thus expose the company to separate suits in many counties, and has fre- quently been the subject of an in- junction on the ground of prevent- ing a multiplicity of suits: Western Union Tel. Co. v. Poe, 61 Fed. 449, 453, by Taft. Cir. J.; Sanford v. Poe, G9 Fed. 546, 548, 60 L. R. A. 641; 467 TO PREVENT A MULTIPLICITY OF SUITS. §263 cumstances which constitute the first and second classes, 16 C. C. A. 305; Western Union Tel. Co. V. Norman, 77 Fed. 13, 21; Tay- lor V. Louisville & N. E. R. Co., 88 Fed. 350 (C. C. A.), by Taft, Cir. J.; Chesapeake & 0. R. R. Co. v. Miller, 19 W. Va. 408; Western Union Tel. Co. V. Trapp, 186 Fed. 114; 108 C. C. A. 226; but see, where the officers in other counties are not par- ties to the suit and would not be bound by the decree, Pullman Co. t. Tamble, 173 Fed. 200. See, also, the following cases, in which railroad companies were exposed to tax suits in different counties, all involving a common question: Union Pac, R. R. Co. T. McShane, 3 Dill. 303, Fed. Cas. No. 14,382; affirmed, 22 Wall. 444; Union Pac. R. R. Co. v. Chey- enne, 113 U. S. 516, 5 Sup. Ct. 601; Northern Pac. R. R. Co. v. Walker, 47 Fed. 681 (quoting § 274 of the text); Mobile & 0. R. R. Co. v. Mose- ley, 52 Miss. 127, 137. In Pyle v. Brenneman, 122 Fed. 787, the plain- tiff, in pursuit of his legal remedy, would hare been compelled to sue a number of different municipalities among whom the tax collected would be distributed. (c) Injunction Against Numerous Attachments or Executions on prop- erty claimed adversely by complain- ant. "Where several executions in favor of different plaintiffs have been levied on the same property, and one person has filed in resist- ance to each levy a separate claim, and the claim cases thus made are pending in court, all involving the same question, and it being one upon the decision of which the sub- jection or iion-subjection of the property to all the executions de- pends, an equitable petition will lie in favor of the claimant against all the plaintiffs, jointly, to bring to trial aU of the claims together, and dispose of them by one verdict and judgment": Smith v. Dobbins, 87 Ga. 303, 13 S. E. 496, relying on § 269 of the text. Similarly, where a debtor has made a transfer of his property, and thereafter successive attachments are levied and threat- ened thereon by his creditors, each claiming that the transfer was fraudulent, the transferee may main- tain an action against all of the attaching creditors to have further attachments enjoined and his right to the property determined; Bishop V. Rosenbaum, 58 Misa. 84 (though the statute provides a method for third persons to assert their claims to property attached); Pollock v. Okolona Sav. Inst., 61 Miss. 293 (re- lying on this chapter) ; Lowenstein v. Abramsohn, 76 Miss. 890, 25 South. 498. See, also, the analogous case of National Park Bank v. God- dard, 62 Hun, 31, 16 N. Y. Supp. 343, 2 Ames Cas. Eq. Jur. 82; af- firmed in 131 N. Y. 503, 30 N. E. 566, 1 Keener's Cas. Eq. Jur. 142; and Chase v. Cannon, 47 Fed. 674, which was a suit by a receiver to determine what liens by garnish- ment certain creditors had upon property he was suing to recover, there being a question of law com- mon to the claim of each defendant. (d) Injunction Against Numerous Trespassers where the relief might not be granted against a single de- fendant. In Stockwell v. Fitzger- ald, 70 Vt. 468, 41 Atl. 504, it was held that equity has jurisdiction of a bill to maintain a right of way against the encroachments of sev- eral owners who have distinct inter- ests to avoid a multiplicity of suits. "Proceedings at law might result in his having no passage-way, although §263 EQUITY JURISPRUDENCE. 468 there are no decisions which positively deny the jurisdiction given a strip two rods wide as against each lot." In "Woodruff v. North Bloomfield, etc., Min. Co., 8 Saw. 628, the conclusions of the text were expressly approved; this was an action brought by a riparian pro- prietor to restrain a large number of mining companies who severally owned mines on the affluents of a river, which were worked inde- pendently of each other by the hy- diaulic process, from discharging their waste, earth, and other debris into the affluents of the stream, whence it flowed down into the river, to the injury of the complain- ant. The defendants demurred to the bill, on the express ground that the complainant's cause of action was distinct and several as against each of the defendants. In passing on the question thus raised, Sawyer, C. J., said: "I also think this bill maintainable against all the defend- ants on the jurisdictional ground of avoiding a multiplicity of suits. There is a common interest — a common, though not joint, right claimed; and the action on the part of all the defendants is the same in contributing to the common nui- sance. The rights of all involve and depend upon identically the Fame questions, both of law and fact. It is one of the class of cases, like bills of peace and bills founded on analogous principles, where a single individual may bring a suit against numerous defendants, where there is no joint interest or title, hut where the questions at issue and the evidence to establish the rights of the parties and the relief de- manded are identical. Without ana- lyzing and discussing the numerous cases upon the subject separately. this case appears to me to be clearly within the principle stated in and established by the following authori- ties." The learned judge then cites Pomeroy's Eq, Jur., §§ 256-269; and Mayor of York v. Pilkington, 1 Atk. 283; Sheffield W. W. v. Yeomans, L. K. 8 Ch. 8; Ware v. Horwood, 14 Ves. 28; Supervisors v, Deyoe, 77 N. Y. 219; Schuyler Fraud Cases, 17 N. Y. 592; Cent. P. Co. v. Dyer, 1 Saw. 650; Gaines v. Chew. 2 How. 642; and Oliver v. Piatt, 3 How, 412. Percy Summer Club v. Astle, 145 Fed. 53, like the leading case of Mayor of York v. Pilkington, ante, § 256, was a bill of peace to protect an exclusive right of fishery against members of the general public. The trespass of each defendant was too trifling to warrant injunction against him separately. In Dumont V. Peet, 152 Iowa, 524, 132 N. W. 955, members of a telephone associa- tion sought to enjoin members of another association from connecting with their lines. The injury result- ing from each act of trespass was trifling, but suits for damages would of necessity have been numerous. (e) Cancellation. — A leading case is Town of Springport v, Teutonia Savings Bank, 75 N, Y, 397. This was a suit for the cancellation of certain bonds issued by the plaintiff and held by numerous defendants. Extrinsic proof would be required to show the invalidity of the bonds in defense to a suit thereon, but that fact, with the "mere ordinary dan- ger of losing evidence" would not, according to the rule established in New York, be a sufficient ground for their cancellation. Eapallo, J,, dis- tinguishing the case of Town of Venice v. Woodruff, 62 N. Y. 462, 20 469 TO PEEVEXT A MULTIPLICITY OF SUITS. §263 or the proi^riety of its exercise in cases belonging to either Am. Rep. 495, sajs (p. 402): "It was not intended to be denied that in the case of instruments creating a prima facie liability, and requir- ing an affirmative defense, to be supported by extrinsic proof of facts, the circumstance that they ■were held by numerous parties who might bring numerous suits upon them in different places, might under some circumstances be re- garded as a ground for equitable interposition, even though, if there were but a single claimant, equi- table relief would be denied and the party left to his legal defense, nor that where a party was subjected to or threatened with numerous vexa- tious actions, equity might not under proper circumstances restrain them." In the similar case of Farmington Village Corp. v. Sandy River Nat. Bank, 85 Me. 46, 26 Atl. 965, the jurisdiction was fully recognized but its exercise declined on the ground that no vexatious litigation appeared to be threatened. See, also, Brown v. Trousdale, 138 U. S. 389, 11 Sup. Ct. 308. In Louisville N. A. & C. R. Co. V. Ohio Val. I. & C. Co., 57 Fed. 42, 45, the plaintiff sued for the cancellation of its guar- anty which had been indorsed upon several hundred bonds issued by an- other company illegally and fraudu- lently. The court was of the opin- ion that there was an adequate de- fense at law to a suit upon each bond, considered by itself, but that the multiplicity of suits threatened, and the common question involved of the validity of the guaranties and of the contract in pursuance of which they were made, rendered the case one for the exercise of its juris- diction; quoting § 269 of the text. and citing Railway Co. v. Schuyler, 17 N. Y. 592; Supervisors v. Deyoe, 77 N, Y. 219; Waterworks v. Yeo- mans, L. R. 2 Ch. App. 11. This case was distinguished in Scott v. McFarland, 70 Fed. 280, where the numerous instruments sought to be canceled were obtained by distinct and separate acts of fraud, present- ing no common question for deci- sion. Town of Fairfield v. Southport Nat. Bank, 77 Conn. 423, 59 Atl. 513, a case for the cancellation of notes held by several defendants, also relies on § 269 of the text; but the question in the case appears to be one of joinder rather than of jurisdiction. (f) Quieting Title, etc., Against Numerous Defendants. — The doc- trine is applicable to a suit by an equitable owner of a large tract of land, to enforce and declare a trust against a large number of defend- ants, each claiming a distinct por- tion of the land, but under one fraudulent title: Dodge v. Briggs, 27 Fed. 160; and to an action to quiet title, brought by a person claiming title to a single piece of mining property, against numerous defend- ants, each of whom separately claims a distinct portion of the property, but all of whose claims are similar in origin, and the de- termination of which depends upon similar rules of law: Hyman v. Wheeler, 33 Fed. 630; and to an ac- tion brought by a land-owner against a large number of defendants, each claiming a separate portion of the land under a void sale thereof m.ado under the same order of court: De Forest v. Thompson, 40 Fed. 375, citing this chapter. See, also, Pro- §263 EQUITY JURISPRUDENCE. 470 of them. The instances are few in which even any special teca V. Maxwell Land Grant Co. (C. C. A.), 50 Fed. 674, citing this chapter; Lasher v. McCreery, 6G Fed. 834, 843, citing § 245, supra; "Waddingham v. Eobledo, 6 N. M. 347, 28 Pae. 663. See, further, the recent case, Asher v. Uhl, 122 Ky. 114, 87 S. W. 307, 93 S. W. 29. In all these cases the jurisdiction was placed wholly or partly on the ground of avoiding a multiplicity of suits. A similar action has been sustained to settle disputed bound- aries by one plaintiff against nu- merous defendants, owners in sev- eralty of a certain tract of land, the boundaries of which, through the lapse of time, the carelessness of oc- cupants, and the absence of natural monuments, had become confused and uncertain: Beatty v. Dixon, 56 Cal. 622. In this case the avoidance of a multiplicity of suits was deci- sive in favor of the jurisdiction. Central Pacific R. Co. v. Dyer, 1 Saw. 641, Fed. Cas. No. 2,552, was a statutory suit to quiet title against numerous defendants. By Mr. Jus- tice Field: "The jurisdiction would, therefore, exist in the present case 3 there were only one defendant as- serting an interest or estate adverse to the plaintiff, but the fact that there are numerous defendants claiming distinct and separate par- cels by a similar title, and threaten- ing distinct actions for injuries to their respective parcels, furnishes a further ground for entertaining the bill. A court of equity will always interfere to prevent a multiplicity of suits, where the rights of the par- ties can be fairly determined by a single proceeding." Citing Crews v. Burcham, 1 Black, 352; Mayor of York V. Pilkington, 1 Atk. 282; and Gaines v. Chew, 2 How. 640. See, also, Ellis v. Northern Pac. R. Co., 77 Wis. 114, 45 N. W. 811, where de- fendants deriving title from differ- ent sources were joined by a plain- tiff seeking to quiet hi^ title. Quieting Title to Numerous Choses in Action. — In Franke v. H. P. Nel- son Co., 157 Wis. 241, 147 N, W. 13, the plaintiff claimed to be owner, by assignment, of numerous notes exe- cuted by purchasers of pianos from the H. Co., each note being secured by a lien on the piano. In each in- stance the H. Co. had exacted of the purchaser execution of the contract in duplicate or triplicate, and these additional evidences of purchaser's indebtedness had, in turn, been as- signed to other parties. The main purpose of the plaintiff's suit was to be declared the true owner of the notes and contracts outstanding and of the right to collect such notes from the makers. The action was sustained on the ground of preven- tion of a multiplicity of suits. The ground appears to be jurisdictional, since if there had been but a single debtor, an action at law against him (in which action he might inter- plead the rival claimant) would, presumably, have been an adequate remedy. The case makes no men- tion of, and would seem to be in- consistent with the opinion in, the case of Illinois Steel Co. v. Schroe- der, 133 Wis. 561, 126 Am. St. Eep. 977, 14 L. R. A. (N. S.) 239, 113 N. W. 51. (g) Recovery of Specific Chattels. One of the earliest of the Ameri- can cases, and one of the most strik- ing illustrations to be found in the books, is that of Vann v. Hargctt, 22 N. C. (2 Dev. & B. Eq.) 31, 32 471 TO PREVENT A MULTIPLICITY OF SUITS. 26^ or additional limitation has been placed upon the operation Am. Dec. 689 (1838). The bill al- leged that the plaiutiffs were own- ers of a remainder interest in cer- tain slaves; that the life tenant had sold them, and that the numerous defendants had possession of some of the issue of the slaves, assert- ing an absolute title therein. The prayer was that the defendants might surrender the slaves or ac- count for their value, if they had been sold. The case, therefore, pre- sents a clear illustration of the "con- current jurisdiction" as defined by the author, the relief demanded be- ing purely legal in its nature. The defendants demurred on the ground that the plaintiffs had a remedy at law by action of trover or detinue, and on the ground of multifarious- ness. The opinion of Daniel, J., states the doctrine with admirable clearness. He says, in part: "The title of the plaintiffs seems to be ad- mitted on both sides to be a legal title; we also think it is a legal title. But if the plaintiffs could by any possibility recover at law, that is not a reason sufficient, in a case like the one disclosed by this bill, why they may not also proceed in equity. The plaintiffs claim by, and seek to establish in themselves, one legal title to the slaves, as against each and all the numerous defend- ants now holding the same. . . . Lord Eedesdale says, courts of equity will take jurisdiction and prevent multiplicity of suits at law. And the cases in which it is at- tempted, and the means used for that purpose, are various. With this view, where one general legal right is claimed against several dis- tinct persons, a bill may be brought to establish the right. Mitford's Pleadings, 145." The judge there states the case of Mayor of York v. Pilkington, 1 Atk. 282 ("The Case of the Fisheries," ante, § 256), and the defendant's argument, that there jurisdiction existed agaiust each defendant on the ground of continuous trespass, and that it was merely decided that the numerous defendants, each of whom might have been separately pursued in equity, were properly joined in a single suit. The court replies: "The answer which we give to this argu- ment is, that the case put by the counsel is but one among many where equity will interfere to pre- vent a multiplicity of suits at law. The cases in which it is attempted, and the means for that purpose, 'are various,' says Lord Eedesdale. The case in Atkins is put as one among many in illustration of this rule. The object of a court of equity in entertaining such a bill, is to pre- vent multiplicity of suits at law by determining the rights of parties upon issues directed by the court, if necessary, for its information, in- stead of suffering the parties to be harassed by a number of separate suits, in which each suit would only determine the particular right in question between the plaintiff and the defendant in it. The notion, that equity interposes only to pre- vent a multiplicity of actions, toties quoties as the trespasses are com- mitted, is answered again by stat- ing, that such a bill can scarcely be sustained where a right is disputed between two persons only, until the right has been tried and decided at law. Mitford, 146." In other words, the defendants' counsel was mistaken in his assumption that in §263 EQUITY JURISPRUDENCE. 472 of the doctrine, other than what is contained in the general the "Case of the Fisheries" the court would have taken jurisdiction of a bill against each of the defend- ants separately. On the question of multifariousness the court says: "The court will not permit a plain- tiff to demand by one bill several matters of different natures against several defendants; for this would tend to load each defendant with an unnecessary burthen of cost, by swelling the pleadings with the state of the several claims of the other defendants, with which he has no connexion. But a demurrer of this kind would hold only when the plaintiffs claim several matters of different natures. But when one general right is claimed by the bill, though the defendants have sepa- rate and distinct rights, a demurrer will not hold." (h) Pecuniary Relief Against Nu- merous Defendants, — The opinion in Bailey v. Tillinghast, 99 Fed. 801, 806, 807 (C. C. A.), is very instruc- tive. This was a suit in equity by the receiver of a national bank against forty-six stockholders, for the purpose of recovering an assess- ment of $61 per share levied by the comptroller of the currency upon their personal liability on account of the stock held by them. By Sev- erens, D. J.: "We are clearly of opinion that the bill should be main- tained for the purpose of avoiding a multiplicity of suits. . . . There is a common question in the case be- tween the receiver and the defend- ants, namely, the question whether the latter were released from their stock subscription by the fact that, whereas the resolution for increas- ing the stock in the sum of $300,000 was that under which their subscrip- tion took place, yet subsequently by proceedings to which they did not consent, the proposed increase was reduced to $150,000. . . . And these circumstances, namely, the great number of the parties on one side or the other, the identity of the question of law, and the similar- ity of facts in the several contro- versies between the respective par- ties, are the basis on which the jurisdiction rests. The object is to minimize litigation, not only in the interest of the public, but also for the convenience and advantage of the parties. If the receiver was compelled to bring separate suits, it would entail a vast expense upon the fund in trying over and over again the identical questions of law and fact with each stockholder, and with no substantial advantage to him, but injury, rather, in the in- creased cost in the immediate suit, and the larger burden upon the fund, created by the many suits against the others. Nor is it neces- sary, as counsel seem to suppose, that there should be any privity of interest between the stockholders, other than that in the question in- volved and the kind of relief sought, the right of their claims be- ing common to them all, in order to bring the case within the jurisdic- tion [citing several of the cases mentioned in this chapter]. It is true there are occasional cases where it seems to have been sup- posed that there must be some com- munity of interest. — some tie be- tween the individuals who make up the great number; but the great weight of authority is to the con- trary, and there is a multitude of cases which either in terms deny the 473 TO PREVENT A MULTIPLICITY OF SUITS. §263 rule itself defining its operation, which was stated in a necessity of such a fact or ignore it by granting relief where the fact did not exist. And, indeed, it is difficult to find any reason why it should be thought necessary. It has no relevancy to the principle or pur- pose of the doctrine itself, which stands not merely as a makeweight when other equities are present, but as an independent and substantive ground of jurisdiction." See, also, Cook V. Carpenter, 212 Pa. St. 165, 108 Am. St. Rep. 854, 4 Ann. Cas. 723, 1 K R. A. (N. S.) 900, 61 Atl. 799 (bill by assignee of corporation to recover unpaid stock subscrip- tions: said that "the question in- volved in all the cases is substan- tially the same, namely, ought the corporation to collect in its unpaid capital? It is a pure question of law, and may be decided once for all in one suit as well as in a thou- sand") ; Brown v, AUebaeh, 156 Fed. 697; New York Life Ins. Co. v. Beard, 80 Fed. 66; Wyman v. Bow- man, 127 Fed. 257, 262-265; Boyd v. Schneider (C. C. A.), 131 Fed. 223, reversing 124 Fed. 239, and relying en author's text, § 245 (suit by de- positors in bank against negligent bank directors). For limitations on the jurisdiction in cases of this char- acter, see Hale v. Allinson, 188 U. S. 56, 23 Sup. Ct. 244, ante, § 2511/2- (II) Joinder of Numerous De- fendants Against Each of Whom the Plaintiff has a Similar Cause of Ac- tion for Equitable Relief. — It has been frequently held that a riparian proprietor may restrain several tort feasors from diverting or polluting the waters of a stream, although they were not acting in unity of de- sign or with concert of action; Woodruff V. North Bloomfield G. M. Co., 8 Saw. 628, 16 Fed. 25, citing this chapter; Union Mill & M. Co. V. Dangberg, 81 Fed. 73, 88; Lock- wood Co. V. Lawrence, 77 Me. 297, 52 Am. Rep. 763, quoting § 269 of the text; Miller v. Highland Ditch Co., 87 Cal. 430, 22 Am. St. Rep. 254, 25 Pac. 550; Hillman v. Newington, 57 Cal. 56; Draper v. Brown, 115 Wis. 361, 91 N. W. 1001; Graham v. Dahlonega Co., 71 Ga. 296. See, also, Norton v. Colusa, P. M. & S. Co., 167 Fed. 202. Joinder of par- ties contributing to a nuisance, in general: American Smelting & Re- fining Co. ▼. Godfrey, 158 Fed. 225, 14 Ann. Cas. 8, 89 C. C. A. 139; La- dew v. Tennessee Copper Co., 179 Fed. 245, So a riparian proprietor on a private stream could maintain a single action against several de- fendants, each of whom acted inde- pendently of the others, but who claimed a common right to float logs down the stream, to restrain them from so doing, and to quiet his title as against all the defendants; Meyer V. Phillips, 97 N. Y. 485. 49 Am. Rep. 538. On the same principle an injunction has been granted in a suit by the owner of a large body of land, valuable only for its pastur- age rights and privileges, to protect that right from use by cattle and stock-owners, neighbors of the land of complainant, under authority of an unconstitutional statute; Smith v. Bivens, 56 Fed. 352. 2 Ames Cas. Eq. Jur. 62; and in a suit by a rail- road company to restrain numerous ticket "scalpers" or brokers from purchasing and reselling partly used tickets which by their terms wore non-transferable; Nashville, C. & St. L. R. Co. V. M'Connell, 82 Fed. 65, 75, citing this chapter. Bitterman §263 EQUITY JUEISPEUDENCE. 474 former paragraph ; ^ namely, tliat if the plaintiff's right, in- terest, or estate in the subject-matter is contested, he is gen- erally required to establish it by an action at law, before he can invoke the aid of equity. As most of these cases have § 263, 1 See ante, § 252. V. Louisville & Nashville R. Co., 207 U. S. 205, 12 Ann. Cas. 693, 52 L. Ed. 171, 28 Sup. Ct. 91 (the acts com- plained of are of like character, and their operation and effect on the rights of the complainant identical, relief sought against each defendant is the same, and the defenses are common and involve like legal ques- tions) ; Pennsylvania Co. v. Bay, 150 Fed. 770. In the five cases last cited it does not clearly appear that an injunction would have been granted against a single defendant; these cases may, therefore, be au- thority on the question of jurisdic- tion as well as of joinder. On the authority of the ticket-scalping cases, in Goldfield Consolidated Mines Co. v. Richardson, 194 Fed. 198, the defendants, who were sepa- rate and distinct purchasers of ore stolen in innumerable small quanti- ties by complainants' employees, were held properly joined in a suit to enjoin further purchases. "The operation and effect of each act upon complainants' rights is identi- cal. The injunctive relief sought against each defendant is the same, und the defenses thus far suggested are common to all the defendants, and involve like legal questions." In a suit by a railroad company to protect its right of way against nu- merous land-owners who interfere with and deny its right, they may all be joined, when there is only one question to be settled. Louisville & N. R. Co. V. Smith (C. C. A.), 128 Fed. 1, 6, citing this chapter. It is well settled that a creditor's bill may be maintained against sev- eral defendants, although they are not united in interest, to reach as- sets of the debtor in their several possession: Sheldon v. Packet Co., 8 Fed. 769 (Harlan, J.); Hayden v. Thrasher, 18 Fla. 795; Robinson v. Springfield Co., 21 Fla. 203, 238; Bobb V. Bobb, 76 Mo. 419; Rinehart V, Long, 95 Mo. 396, 8 S. W. 559; Parish v. Sloan, 3 Ired. Eq. (N. C.) 611. On the same principle the stockholders in a corporation may join in a single suit the grantees in distinct conveyances of the corpo- rate property which they seek to cancel because made under an in- valid resolution of the directors; Hardie v. Bulger, 66 Miss. 577, 6 South. 186. And an assignee in bankruptcy may file his bill against all the encumbrances of the bank- rupt's property to ascertain the validity, priority, and amount of the encumbrances; McLean v. Lafayette Bank, 3 McLean, 415, 419, Fed. Cas. No. 8,886. In the last case it was distinctly held by Mr. Justice Mc- Lean that privity among the parties plaintiff or defendant is not neces- sary in a bill of peace, and it was pointed out that Lilly v. Doig, 2 Ves. Jr. 486, is wholly irreconcilable with the leading case of Mayor of York V. Pilkington, 1 Atk. 282 ("The Case of the Fisheries," ante, § 256). Equity has jurisdic- tion, partly on the ground of pre- venting a multiplicity of suits, of a suit by the receiver of an insol- 475 TO PREVENT A MULTIPLICITY OF SUITS. § 263 already been cited in connection with the foregoing affirma- tive discussion, I shall simply collect them here in the f oot- note.2 §263, ZHnghlett v. Harris, 1 Del. Ch. 349, 352, 12 Am. Dec. 104; Kichmond v. Dubuque etc. R. R. Co., 33 Iowa, 422, 487, 488; Eastman v. Amoskeag, etc. Co., 47 N. H. 71, 79, 80; Eldridge v. Hill, 2 Johns. Ch. 281; West V. Mayor, etc., of N. Y., 10 Paige, 539. For the facts and particu- lar points decided in these cases, see ante, in notes under § § 252, 253, and 254. Richmond v. Dubuque etc. R. R. Co., 33 Iowa, 422, 487, 488, con- tains the following dictum by Beck, C. J. : "It is said that equity will take jurisdiction of this case in order to avoid a multiplicity of suits between the parties. This is sometimes a ground for the exercise of chancery powers, but it is not of such controlling nature as to require the jurisdic- tion to be assumed even though other equitable principles are disregarded. The rule relied on is usually applied in cases where chancery has ji;risdic- tion. for a proper purpose, of a subject-matter out of which grow other questions requiring adjudication. In such cases the parties will not be turned over to the law court which has cognizance of the matter, but it will be retained, that all rights relating thereto may be settled: 1 Story's Eq. Jur., §§ 64-67. We do not understand the mere fact that there exist divers causes of action, which may be the foundation of as many different suits between the parties thereto, is a ground upon which equity may be called upon to assume jurisdiction, and settle all such matters in one suit. The case would not be different if some of the causes of action were not matured. We have never heard it claimed that equity will entertain an action upon a contract requiring tin payment of money daily, monthly, or yearly. Yet in such a case an action would accrue at each of such periods, and there would thus be jDrospectively a gi'eat multiplicity of actions. In the case before us, admitting the contract to be divisible, and that an ac- tion may be maintained upon every breach, this is no ground for inter- ference by a court of chancery. If the contract be divisible, and the plain- tiff has a right of action thereon to recover money accruing every day, equity cannot take the right from him, and substitute a remedy which will award him damages in gross for the whole amount which he may ultimately recover." This case was an equitable action to compel the specific per- formance of a long and complicated agreement, extending in its operation over several years, and containing numerous provisions, but relating wholly to personal services and personal property. The plaintiff claimed, among vent national bank against all its at a time when the bank was in- shareholdcrs to recover dividends solvent. Haydon v. Thompson, 17 that have been unlawfully paid to C. C. A. 592, 71 Fed. 60, 36 U. S. them out of the capital of the bank App. 361. § 264 EQUITY JURISPRUDENCE. 476 § 264. In the Third and Fourth Classes.^ — T pass, then, to the denial or the restrictions and limitations of the doc- trine in its application to cases of the third and fourth classes. There are instances of such absolute denial, or of stringent limitations, in suits brought by a number of per- sons to establish some individual but common right existing on behalf of each and all, against a single wrong-doer or trespasser; or brought by a single plaintiff to restrain a number of simultaneous actions commenced against him by different persons, upon the allegation that they all in- volved similar facts, and depended upon the same questions of law, and therefore had a common nature. In these cases the jurisdiction was denied, on the ground that there was no privity or legal relation or community of interest and other arguments, that equity had jurisdiction to prevent a multiplicity of suit?, since from the continuous nature of the agreement, and the number and variety of its provisions, there would be many breaches, and conse- quently many actions at law to recover damages. The decision that such a case does not come within the doctrine as to preventing a multiplicity of suits, since the plaintiff's remedy at law is adequate, simple, and certain, is plainly con-eet. The correctness of the learned judge's remarks con- cerning the origin and nature of the jurisdiction in general to prevent a multiplicity of suits is much more doubtful.* § 263, (a) The above note is cited, tiff might wait until the term of and the decision in Eichmond v. the contract had expired and then Dubuque etc. R. Co., 33 Iowa, 422, bring a single action at law. So, followed, in General Electric Co. v. where a cotton merchant sought to Westinghouse El. & Mfg. Co., 144 enjoin a public warehouseman from Fed. 458, holding it not to be a overcharges for storage, he might in ground for jurisdiction to enjoin one action at law sue to recover for breach of a contract, that the com- all the overcharges paid during the plainant must bring many actions at entire cotton season; hence ther© law to recover damages for succes- was no necessity for a multiplicity sive breaches. The demurrer to the of suits: Gulf Compress Co. v. Har- amended complaint in this case was ris, Cortner & Co., 158 Ala. 343, 24 overruled in 151 Fed. 667. In At- L. R. A. (N. S.) 399, 48 South. 477. torney-General v. Board of Educa- § 264, (a) Sections 264-269 are tion (Mich.), 95 N. W. 746, it was cited in American Cent. Ins. Co. v. held that the avoidance of a multi- Landau, 56 N. J. Eq. 513, 39 Atl. plicity of suits was no ground for 400, a case recognizing the author's injunction against the breach of a "third class." continuing contract when the plain- 477 TO PREVENT A MULTIPLICITY OF SUITS. 261 right among the individuals of the numerous body, which, it was held, must exist in order that a court of equity may interfere, under such circumstances, for the purpose of preventing a multiplicity of suits.^ *> My critical examina- §264, 1 County of Lapeer v. Hart, Harr. (Mich.) 157; Marselis v. Morris Canal Co., 1 N. J. Eq. 31, 35-39. In County of Lapeer v. Hart, Harr. (Mich.) 157, sixty-seven actions at law had been begun, against the county supervisors on certain drafts or orders for the payment of money in various sums issued by them, and owned by the respective plaintiffs in said actions, individually. These orders had all been issued by the super- visors in pursuance of the same supposed authority, and in the same pro- ceeding. An action was brought by each holder to recover the amount of his order. "Whatever defense the county had in each action was wholly legal. The county thereupon filed this bill in equity against all the holdei-s of said orders, seeking to restrain their actions at law, and to have the orders declared void, etc. It was held that no such suit could be main- tained by the county, since there was no common interest among the order holders; it was not a case which came within the principle of a "bill of §264, (b) Cases of the Fourth Class Denying the Jurisdiction. — The following cases deny the juris- diction with more or less emphasis; but most of them are distinguish- able as eases where the exercise of the jurisdiction was unnecessary, or would be ineffectual: Swift v. Lar- rabee, 31 Conn. 225, 239 (dictum) ; Equitable Guarantee, etc., Co. v. Donahoe (Del.), 45 Atl. 583; Dog- gett v. Hart, 5 Fla. 215, 58 Am. Dec. 464; Hughes v. Hannah, 39 Fla. 365, 22 South. 613 (bill of peace does not lie to quiet title against numerous defendants in possession); Penin- sula Const. Co. V. Merritt, 90 Md. 589, 45 Atl. 172; Zahnhizer v. Hef- ner, 47 W. Va. 418, 35 S. E, 4; Tri- bette V. Illinois Cent. E. Co., 70 Miss. 182, 35 Am. St. Eep. 642, 19 L, R. A. 660, 12 South. 32, 1 Keener Cas. Eq. Jur. 148, 2 Ames Cas. Eq. Jur. 74; Ducktowu, etc., Co. v. Fain, 109 Tenn. 56, 70 S. W. 813. In Peninsula Const. Co. v. Merritt, supra, it was held that equity would not take jurisdiction to enjoin nu- merous garnishment procoedings against the complainant, to all of which he had the same defense, that he owed nothing to the common debtor. In Zahnhizer v. Hefner, supra, the court refused to take jurisdiction to enjoin several attach- ments on goods claimed by the plaintiff, who was not a party to the attachment suits. The decision is partly rested, however, on the ade- quacy of the statutory remedy by which the plaintiff might reclaim his property. In other West Virginia cases the jurisdiction as contended for by the author has been fully rec- ognized. In Equitable Guarantee, etc., Co. V. Donahoe, supra, a case of the fourth class, the jurisdiction was invoked to restrain taxation; for a statement of the case see post, § 266, note. The opinion in Tribette V. Illinois Cent. E. Co., supra, is so sensational in many of its state- § 264 EQUITY JURISPRUDENCE. 478 tion of these cases is placed in the foot-note, where it is shown that with respect to their material facts they are clearly distinguishable from all those adjudications, quoted peace/' or of preventing a multiplicity of suits. The opinion in Marselis V. Morris Canal Co., 1 N. J. Eq. 31, is one of the most carefully considered and elaborate presentations of this restricted and negative view of the doctrine to be found in the reports, and I shall therefore quote from it at some length. Many separate owners of distinct tracts of land along the line of the defendant's canal united as plaintiffs, suing on behalf of themselves and all others, etc., charging that the defendant entered on their separate parcels of land and dug a canal, without peiTnission or agreement, and without making any compensation; that defendant was in- solvent. They prayed an account of damages for the injuries done, com- pensation for the lands taken, and an injunction to restrain the defendant from occupying or using their lands without compensation. Defendant demurred to the whole bill, and plaintiffs moved for a preliminary injunc- tion, and the argument of both came on together. The chancellor said (pp. 35-39) : "The complainants are several owners having distinct rights in the several tracts of land through which the canal passes. The injuries sustained by one of them have no necessary nor natural connection with those sustained by another. Admitting the jurisdiction of the court, each of these complainants might sue separately, either in a court of law or of equity, without consulting with any other one, and without in the least ments, and has been so frequently that the plaintiffs in the different reprinted, that it appears to call for actions are wrongfully seeking to special notice. Campbell, C. J., recover damages by their several ac- etates the facts as follows: "A num- tions, all of which grew out of the ber of different owners of property same occurrence, and depend for in the town of Terry, destroyed by their solution upon the same ques- fire from sparks emitted by an en- tions of fact and of law. Where- gine of the appellee, severally sued fore, to avoid multiplicity of suits, in the circuit court to recover of the and the consequent harassment and appellee damages for their respec- vexation, all of the said plaintiffs live losses by said fire, alleged to are sought to be enjoined from have resulted from the negligence prosecuting their different actions, of the defendant. While these ac- and to be brought in and have the tions were pending, the appellee ex- controversies settled in this one suit hibited its bill against the several in equity. There is no common in- plaintiffs, averring that no liability, terest between these different plain- as to it, arose by reason of the fire, tiffs, except in the questions of fact which arose, not from any negli- and law involved." Campbell, C, J., genee or wrong of it or of its ser- asserts that on the facts as thus vants, but from the fault of others, stated "the granting and maintain- for which it is not responsible; and ing the injunction are fully sus- 479 TO PREVENT A MULTIPLICITY OF SUITS. § 264 under the foregoing paragraphs, by which the jurisdiction has been asserted and exercised, so that there is no conflict between the decisions as actually made. With the judicial degree affecting his rights. On the other hand, the suit is brought by all of them against one common defendant. They all complain of injuries similar in their character, and seek a similar relief, and therefore have a common object in view. Complainants allege that the suit is brought for the benefit of all land-owners who will come in and contribute. Such is the complainants' case. Let us examine some of the leading authorities for the principle that should govern it. In Bouverie v. Prentice, 1 Brown. Ch. 200, Lord Thurlow held that where a number of persons claim one right in one subject, one bill may be sustained to put an end to suits and litiga- tion. That was the case of a bill filed by the lady of a manor against several tenants for quitrents due, and the method was adopted to prevent multiplicity of suits. But it was not considered as coming within the principle laid down by the courts. The lord chancellor remarked that no one issue could try the cause between any two of the parties (defendant) ; and he could not conceive upon what principle two different tenants of distinct estates should be brought before him together to hear each other's rights discussed. In Ward v. Duke of Northumberland, 2 Anstr. 469, the court says that the cases where unconnected parties may join in a suit are, where there is one common interest among them all, centering in the point in issue in the cause. Lord Redesdale, in Whaley v. Dawson, 2 tained by Pomcroy Eq. Jur., Vol. I, correct: See avie, § 25114. The § 255 et seq." With this the editor opinion, however, consists of a agrees, if the bill really presented sweeping denial of the author's the single question, a denial of the conclusions as to classes third and complainant's negligence. But it fourth. Says the learned chief jus- appears from the briefs of counsel tice: "There is no such doctrine in that the point was argued, that nu- the boohs (!), and the zeal of the merous unrelated issues of fact were learned and usually accurate writer presented, which the suit in equity mentioned, to maintain a theory, has would not avail to lessen. Neither betrayed him into error on this sub- the court nor the reporter enlightens jeet. . . . Every case he cited to us further as to the facts of the support his text will be found to be case; but it is evident that if the either where each party might have complainant's real defense to the resorted to chancery or been pro- plaintiffs' suits was, say, eontribu- eeeded against in that form, or to tory negligence on the part of the rest on some recognized ground of several plaintiffs, a separate issue equitable interference other than to with each of them could not be avoid multiplicity of suits. The avoided by removing the cases to a cases establish this proposition, viz.: court of equity. The decision of the Where each of several may proceed court would then be unquestionably or be proceeded agaiust in equity, § 264 EQUITY JURISPRUDENCE. 480 opinion, however, it is otherwise. Laying out of view the groups of cases concerning assessments, and taxes, and public burdens, with respect to which there has been so Sehoales & L. 367, held this principle, that where there was a general right claimed by the bill covering the whole case, the bill would be good, though the defendants had separate and distinct rights; but if the subjects of the suit were in themselves perfectly distinct, a demurrer would be sustained. The same rule is recognized in Saxton v. Davis, 18 Ves. 72; in Hester v. Weston, 1 Vern. 463; and in Mayor of York v. Pilkington, 1 Atk. 282. In Cooper's Eq. PI. 182, this rule is given : 'The court will not permit several plaintiffs to demand by one bill several matters perfectly distinct and unconnected against one defendant; nor one plaintiff to de- mand several matters of distinct natures against several defendants.' And to exemplify the rule, the following case is given from 2 Dick. 677 : If an estate was sold in lots to different persons, the purchasers could not join in one bill against the vendor for a specific performance ; for each party's case would be distinct, and would depend upon its own peculiar circum- stances, and there must be a distinct bill upon each contract. Nor could such vendor, on the other hand, file one bill for a specific performance against all the purchasers. Lord Kenyon, in Birkley v. Presgrave, 1 East, 227, gives the same illustration ; and adds that, in general, a court of equity win not take cognizance of distinct and separate claims of different per- sons in one suit, though standing in the same relative situation. In the their joinder as plaintiffs or defend- presented no other possible ground ants in one suit is not objectionable; of jurisdiction; Pollock v. Okolona but this is a very different question Sav. Inst., 61 Miss. 293, ante, note from that, whether, merely because to §261, Class Fourth, (I), (c). We many actions at law arise out of the have already shown that the state- same transaction or occurrence, and ment and proof of the rules of depend on the same matters of fact equity relating to joinder of parties and law, all may proceed or be pro- forms a vital and necessary part of ceeded against jointly in one suit in the author's argument: Ante, note chancery; and it is believed that it (c) to § 257. In regard to the cases has never been so held, and never selected by Campbell, C. J., for will be, in cases like those here in- special animadversion we may ob- volved," etc. It may be remarked, serve: that if Osborne v. Wisconsin in passing, that the language itali- Cent. R. Co., 43 Fed. 824, ante, note cized is a severe reflection upon the to § 261, Third Class, (I), (a), was learned judge's own court, which, a case in which each plaintiff only nine years before, rendered a "might have brought his separate decision, concurred in by this same bill to quiet title," there is nothing judge, adopting the author's conclu- in the opinion of Harlan, J., from sions and applying them to a case which that fact may be inferred; which, as the court then admitted, that in Keese v. Denver, 10 Colo. 481 TO PEEVE NT A MULTIPLICITY OF SUITS. § 264 much antagonism on the part of the courts, there is much in these opinions, in the course and tendency of their rea- soning, and in the rules which they lay down as tests of case of Brinkerhoff v. Brown, 6 Johns. Ch. 139, Chancellor Kent reviews the leading authorities, and comes to this conclusion, that a bill filed against several persons must relate to matters of the same nature, and having a connection with each other, and in which all the defendants are more or less concerned, though their rights in respect to the general sub- ject of the case may be distinct." The chancellor then remarks that suits by creditors, legatees, etc., depend upon the principle that there is such a privity between them that a complete decree may be made determining the rights of all. Also cases of lord and tenants concerning the common rights, of parson and parishioners concerning a modus, and some others, are, as he asserts, governed by the same notion. He proceeds : "These last may, with more propriety, be classed under that branch of equity which relates to bills of peace. These bills have no affinity with the one now before the court. It is true, the legitimate object of them is to avoid a multiplicity of suits; and the ancient practice of the court was, not to interfere until the legal right had first been tried at law in an individual case; after which the court of equity would interfere to quiet that right by injunction. This is not a bill of peace, and I believe it has not been contended that a land-owner in the county of Warren or ]\Iorris, not com- ing in and making himself a party to this suit, would be in any wise 112, 15 Pac. 825, ante, note (b) to adequate; that in New York, etc., § 260, the demurrer was both to the E. R. Co. v. Schuyler, 17 N. Y. 592, misjoinder and to the want of the court expressed the opinion that equity in the complaint, and in the suit could be sustained as a bill overruling it the text was cited on of peace, even if there were no other both grounds; that in Carlton v. element of equity jurisdiction. But Newman, 77 Me. 408, the court the author's critic even ventures the states in the plainest and most em- astounding assertion that Sheffield phatic manner that illegality is no Water Works v. Yeomans, L. R. 2 ground for enjoining a tax at the Ch. 8, aiite, note to § 256, "furnishes suit of the single plaintiff, and bases no sort of support to the text of the the injunction squarely on the au- author." The case in question, con- thor's text; that in De Forest v. stantly relied on as one of the Thompson, 40 Fed. 375, Jackson, J., strongest authorities in support of and Harlan, J., so far from holding the doctrine, is too plain and simple that "a bill might have been exhib- to admit of misconception. The ited against each defendant sepa- learned chief justice admits that the rately," concede that as against each author's text has frequently been defendant, separately considered, cited or quoted by the courts; but the remedy at law would have been claims that all these cases are "re- 1—31 § 264 EQUITY JURISPRUDENCE. 482 the jurisdiction, which conflicts directly and unmistakably with the doctrines and rules necessarily contained in numerous well-settled and well-known authorities, both affected by it. I think the principle laid down in Cooper is the correct one, that it is fairly deducible from the cases, and must govern this. Ac- cording to that principle, I feel constrained to say that the bill cannot be sustained. There is no kind of privity between these complainants; there Is no general right to be established as against the defendant, except the general right that the wrong-doer is liable to answer for his misdeeds to the injured party, which surely does not require to be established by such a proceeding as this. The utmost that can be said is, that the defendant stands in the same relative position to all these complainants. There is no common interest in them centering in the point in issue in the cause, which is the rule in 2 Anstruther. Nor is there any general right claimed by the bill covering the whole case, which is the principle adopted by Lord Redesdale. Chancellor Kent's rule is quite as broad as any authority will warrant, but it is not broad enough for the case now before the court. It requires that a bill against several persons must relate to matters of the same nature, and having a connection with each other, and in which all the defendants are more or less concerned." In whatever manner we may regard the general course and tendency of the chancellor's reasoning in this opinion, it is very evident that the actual decision made upon the facts does not in tho slightest degree conflict with any of the cases heretofore solvable upon other grounds of equi- closed, against the unconnected table interference." An examina- claims of numerous suitors; and tion of the recent cases cited, ante, afterwards was tacitly overruled in in note to § 261, will show that this Hightown v. Mobile, J. & K. C. E. claim is true of only a few of Co. (Miss.), 36 South. 82, and Tis- these decisions. dale v. Insurance Co. of N. A. The opinion in the "Tribette case" (Miss.), 36 South. 568, cases of the was followed in Duckworth, etc. Co. "third class," in neither of which V. Fain, 109 Tenn. 56, 70 S. W. 813; was there any possible pretense of but in the latter case the exercise of connection among the numerous the jurisdiction would clearly have plaintiffs, except with reference to been ineffectual, within the principle the questions of fact and law in- of §2511^, ante. The Mississippi volved. court has since abandoned its ex- The Tribette case has had some treme position; the "Tribette ease" following in the thirteen years was first distinguished in Illinois elapsing since the preparation of the Central R. Co. v. Garrison, 81 Miss. third edition of this work. It is be- 257, 95 Am. St. Rep. 469, 32 South. lieved that all those cases, however, 996, where the plaintiff successfully are readily distinguishable as being asserted in equity a "common right," governed by the principles explained the character of which is not dis- ante, in §§ 2511/^ and 251%. Thus, 483 TO PREVENT A MULTIPLICITY OF SUITS. §2G4 Englisli and American. All attempt to reconcile or to pro- nounce upon tliis contradiction is postponed to a subsequent paragraph. quoted, in which the jurisdiction has beeh exercised. The facts of this case clearly distinguish it from each and all of them. Although on the first superficial view there may appear to be the same community, since the single defendant was all the time prosecuting one enterprise, viz., con- structing its canal, yet in the case of each plaintiff there was a separate, distinct trespass upon his land; the claim of each land-owner resulted from a separate injury to his own property, unconnected with the injuries done to the others. This is the vital distinction in the facts which removes this case from the operation of the doctrine. In the group of decisions where many land-owners have united in a suit to restrain a trespass or a nuisance, such as a diversion of water from their mills, or an erection blocking up a passage to all their buildings, the one wrongful act of the defendant, una flatu, did the injury complained of to the land of each plaintiff; in that group where many lot-owners united to obtain relief from an illegal assessment, the one official act of the municipality placed an unlawful burden on the lot of each plaintiff, and by this single wrong all of the lot-owners sustained their individual but common injuries. The same is true in the suits by tax-payers to be relieved from an illegal tax or public debt. In the present case, the transaction was otherwise, both in form and in its nature. There was no single wrongful act of the canal in Kansas City Southern E. Co. v. Quigley, 181 Fed. 190, the complain- ant railroad company claimed to be threatened with, numerous injunc- tion suits and other suits growing out of its proposed removal of its shops and divisional point. The court points out, however (p. 203), that no multiplicity of suits, on com- plainant's showing, was reasonably to be apprehended; the case, there- fore, falls within §251%. The case of Vandalia Coal Co. v. Lawson, 43 Ind. App. 226, 87 N. E. 47, like the Hopkins case in Ala- bama (ante, § 261, note, "Class Fourth," (I), (a), arose from a mine explosion. In this case the complainant company prayed that the numerous actions for damages arising from the explosion be con- solidated and tried as one case in equity. It is obvious that such a bill falls squarely within the con- demnation of the principle of § 2511/^, ante. It is one thing for A to seek an injunction against nu- merous actions, all presenting the common defense, A's lack of negli- gence; but it is an entirely different thing, unwarranted by the decisions or by the author's text, for A to ask that on his failure to establish his defense, the case be retained for the purpose of establishing, in a court of equity, numerous claims of damages for personal injuries against A, each claim involving a separate and dis- tinct issue as to the character and amount of the claimant's injury. "A court of equity cannot exercise its jurisdiction ... in Cases where the §2G5 EQUITY JURISPRUDENCE. 484 § 265. In Cases of Illegal Taxes and Public Burdens. — I pass to cases concerning local assessments, general taxes, and public debts or burdens. The line of decisions lias already been mentioned, where, upon an equity suit brought in most instances by one proprietor, to restrain or to set aside some illegal assessment or tax which imposed a lien or liability upon the plaintiff and others in the same posi- tion, the court has held that it would exercise its jurisdic- tion and grant the relief only where such judicial action company, which by its comprehensive nature produced the same injury upon the land of each proprietor. On the contrary, the company com- mitted a separate and wholly independent trespass upon the land of each by itself, and these trespasses were not simply distinct in contemplation of law, but they were different in their form, nature, and extent. It neces- sarily follows, therefore, that thei-e was not among the plaintiffs even any community of interest in the relief sought, nor in the questions at issue,, plaintiff invoking such jurisdiction has not any prior existing cause of action" or defense: Ante, § 250, and note (b). It appears (see end of opinion) that the complainant did not distinctly aver its absence of liability to the numerous claimants. "Nothing short of a specific state- ment of facts establishing, without aid of presumptions, the absolute non-liability of appellant to any of the appellees in any event, can be accepted as a basis upon which to invoke equitable action." This dis- poses of the case; and the general discussion of the doctrine is entirely superfluous. It should be noticed that the same court, in the follow- ing year, recognized the case as sup- porting the jurisdiction to prevent a multiplicity of suits (Gray v. Fos- ter, 46 Ind. App. 149, 92 N. E. 7). It is regrettable that the court is guilty of such inaccuracies as the statement that "the case at bar comes within the third class" of the author's classification; and that the present editor "acknowledges that the decision of the court [in the Tribette case] was correct." The facts in the Hopkins case, and the decision of the court on the first appeal, Southern Steel Co. v. Hopkins, 157 Ala. 175, 131 Am. St. Rep. 20, 16 Ann. Cas. 690, 20 L. R. A. (N. S.) 848, 47 South. 274, have al- ready been stated: Ante, § 261, note, "Class Fourth," (I), (a). On the second appeal it appears that the complainant by its amended bill, prayed that in case it failed to es- tablish its common defense, the court should determine the extent of its liability to the numerous claimants. The case, therefore, is on all-fours with the Vandalia Co. case, on which it largely relies. It was wholly unnecessary for the court, in order to support its decision, to re- ject the author's conclusions and to confine the jurisdiction to cases in- volving "a common title to, or a common interest in, the subject-mat- ter involved." The bill in Eoanoke 485 TO PREVENT A MULTIPLICITY OF SUITS. 265 was necessary to prevent a multiplicity of suits, or to re- move a cloud from title, or to avoid irreparable mischief. These decisions therefore assort affirmatively that a court of equity may relieve from illegal assessments and taxes on the ground of preventing a multiplicity of suits; but they make no attempt to determine when or under what circumstances such ground for its interference would exist ; and they all hold that the mere facts of the assessment or tax being illegal and of its creating an illegal personal lia- whieh, it is conceded, must exist in order that the court may interfere, and which did exist in all the groups of cases heretofore cited. The decision of the chancellor was therefore unquestionably correct; but I cannot ac- cept the whole course and tenor of his reasoning as equally correct. It is the case, not uncommon, of a judge who seeks to sustain a foregone con- clusion by giving an imperfect consti-uction or improper bias to the authorities which he cites.® The very recent case of Board, etc., v. Deyoe, 77 N. Y. 219, is directly contrary to County of Lapeer v. Hart, Harr. (Mich.) 157. Guano Co. v. Saunders, 173 Ala. 347, 35 L. R. A. (N. S.) 491, 56 South. 198, was subject to the same fatal defect — an attempt to enjoin numer- ous damage suits for the purpose of consolidating them in one chancery trial. The opinion admits that the author's text has been followed in, probably, a majority of the cases. A series of similar attempts at con- solidation of damage suits, in Ala- bama and in Mississippi, are listed ante, in note (h), § 251^^. The ease of Cumberland Tele- phone & Telegraph Co. v. "V^'illiam- son, 101 Miss. 1, 57 South. 559, in which the Tribette case was rein- stated as the law for Mississippi, was one in which the complainant had no common defense (so far as the report discloses) to the actions sought to be enjoined, and must, therefore, fail, on any theory of the jurisdiction; and the same is true, as is pointed out by the court, of the recent decision, Hamilton v. Ala- bama Power Co., 195 Ala. 438, 70 South. 737. For some highly pertinent obser- vations on the extraordinary vacil- lation of the Mississippi and Ala- bama courts, owing to their "great confusion of thought upon the subject and a failure to distin- guish the cases to which Pomeroy's rule is applicable from the cases to which it is not applicable," see. opinion of Rogers, Cir. J., in Watson V. Huntington, 215 Fed. 472, 486, 131 C. C. A. 520. See, also, 25 Har- vard Law Eeview (1912), p. 559. Cases of the Third Class Denying the Jurisdiction. — See yost, § 267, note. § 264, (c) For many further in- stances where the court refused to interfere because there was no "com- munity of interest in the relief sought, nor in the questions at is-- sue," see ante, § 251%, and notes. § 266 EQUITY JURISPRUDENCE. 486 bility or unlawful lien, and of its affecting numerous tax- payers and owners in the same manner, do not furnish the ground for equitable interference, nor bring the case within the jurisdiction based upon the prevention of a multiplicity of suits.i ^ § 266. The cases, however, to which I now refer go much further than these. There are well-considered adjudica- tions of several courts, certainly among the ablest courts of this country, which hold that, as a general rule, or except under very special circumstances, a court of equity will not exercise its jurisdiction and grant relief upon the doctrine of preventing a multiplicity of suits in a suit brought by a single tax-payer and property owner, or by one or more suing on behalf of himself and others, or by many indi- viduals united as co-plaintiffs to restrain the enforcement of, or to set aside and annul, or to be otherwise relieved from, any local municipal assessment, or any tax, purely personal or made a lien on property, laid by a county, town, city, or other district, or any official act, proceeding, or transaction of a county, town, city, or district, whereby § 265, 1 See ante, § 259 ; Mayor, etc., of Brooklyn v. Meserole, 26 Wend. 132, 140 ; Haywood v. Buffalo, 14 N. Y. 534, 541 ; Guest v. Brooklyn, 69 N. Y. 506, 512, 513; Bouton v. Brooklyn, 15 Barb. 375, 387, 392; Ewing v. St. Louis, 5 Wall. 413, 418 ; Dows v. Chicago, 11 Wall. 108, 110, 111 ; Scribner V. Allen, 12 Minn. 148; Minnesota Oil Co. v. Palmer, 20 Minn. 468; While Sulphur Springs Co. v. Holley, 4 W. Va. 597; Harkness v. Board of Pub. Works, 1 McAr. 121, 131-133. It should be observed that almost aU of these cases, I believe with hardly an exception, are avowedly de- cided upon the authority of the opinion given in Mayor v. Meserole, 26 Wend. 132, and the other New York cases following and adopting it. §265, (a) Cited, Strenna v. Mont- 108, 22 Am. St. Rep. 345; Wilkerson gomery, 86 Ala. 340, 5 South. 115. v. Walters, 1 Idaho, 564; Bradtsh v. See, also, Schulenberg-Boeckeler Lucken, 38 Minn. 186, 36 N. W. 454; Lumber Co. v. Town of Hayward, Coulson v. Harris, 43 Miss. 728, 20 Fed. 422 (distinguished ante, 754 ff.; Hoboken L., etc., Co. v. City §2511/2); People's Nat. Bank v. of Hoboken, 31 N. .J. Eq. 462; Dyer Marye, 107 Fed. 570; Murphy v. v. School District, 61 Vt. 96, 17 Atl. City of Wilmington, 6 Houst. (Del.) 788. 487 TO PREVENT A MULTIPLICITY OF SUITS. § 266 a public indebtedness is or would be created, and the bur- den of taxation is or would be enhanced, upon the ground that such assessment, tax, official proceeding, or public debt was illegal, and either voidable or void. These cases there- fore present a direct conflict of judicial opinion with those quoted in the preceding paragraphs. The most important reasons given by the courts in support of the general con- clusion which they all reach are placed in the accompany- ing foot-note.^ ^ § 266, 1 1 have arranged these cases into classes according to their sub- ject-matter; and those in each class, wherever possible, according to their forms, viz., those brought by or on behalf of numerous plaintiffsy and those by a single plaintiff suing alone. Cases concerning some public official action not directly involving taxa- tion : Doolittle v. Supervisors, 18 N. Y. 155 ; Roosevelt v. Draper, 23 N. Y. 318. Cases concerning local assessments by numerous lot-owners: Dodd v. Hartford, 25 Conn. 232, 238 ; Howell v. City of Buffalo, 2 Abb. App. 412, 416; Bouton v. Brooklyn, 15 Barb. 375, 387, 392-394. Cases concerning taxes or proceedings which would create a public debt, and thus increase taxation, — 1. By numerous tax-payers: Youngblood v. Sexton, 32 Mich. 406, 20 Am. Rep. 654; Sheldon v. School District, 25 Conn. 224, 228; Harkness v. Bd. of Pub. Works, 1 McAr. 121, 127-133; Kilbourne v. St. John, 59 N. Y. 21, 27, 17 Am. E-ep. 291; Ayres v. Law- rence, 63 Barb. 454; Tift v. Buffalo, 1 Thomp. & C. 150; Comins v. Super- visors, 3 Thomp. & C. 296; Barnes v. Beloit, 19 Wis. 93; Neweomb v. Hor- ton, 18 Wis. 566, 568, 569; Cutting v. Gilbert, 5 Blatchf. 259, 261-263. 2. By a single tax-payer: Phelps v. Watertown, 61 Barb. 121, 123; Ayres V. Lawrence, 63 Barb. 454; White Sulphur Springs Co. v. Holley, 4 W. Va. §266, (a) The recent case of volved in a multiplicity of suits if Equitable Guarantee & T. Co. v. it paid tlie tax. Nicholson, Ch., re- Donahoe (Del.), 45 Atl. 583, is note- ferring to this chapter, but dotlin- worthy for its statement of those ing to discuss the scope of the doe- motives of public policy which, in trine here laid down, bases his re- many states, serve to prevent the fiisal of relief on several grounds; operation of the jurisdiction in mat- viz., (1) that the equitable jurisdic- ters of taxation. The complainant, tion in Delaware is restricted by the a trust company, sought to restrain constitution to cases where there is the collection of an alleged illegal not sufficient remedy by common law personal tax, on the ground that it or statute; (2) that the complainant was trustee or guardian in a large stood in no real danger of repeated number of estates and would be in- litigation, as it was probable that i2G7 EQUITY JURISPRUDENCE. 488 § 267. Summary of Conclusions. — The theories concern- ing the doctrine advocated by different judges, and the con- chisions reached by different decisions, have been so fully explained, compared, and examined in the accompanying foot-notes, that I only need state here in the text the propo- 597. The cases of Doolittle v. Supervisors, 18 N. Y. 155, and Roosevelt V. Draper, 23 N. Y. 318, are in some respects leading. They have exerted a marked influence, and have even been controlling upon many of the sub- sequent decisions, but, in my opinion, through a misapprehension of their true significance and effect, since they really have no legitimate connection "whatever with the equitable jurisdiction based upon the prevention of a multiplicity of suits. The rationale of the decision — the ratio decidendi — in each consisted solely in motives of public policy and governmental expedi- ency. They hold that vphen local officers, as of a county or a city, having quasi legislative*and administrative functions, do some official act which is illegal or in excess to their powers, an individual citizen, who suffers thereby only the injuries which are sustained in comxaon by all other members of the community, — that is, who suffers no special injury, and nothing which the tax collector would abide by the result of a single suit at law; quot- ing Fellows V. Spaulding, 141 Mass. 92, 6 N. E. 549, and Express Co. v. Seibert, 44 Fed. 315; (3) motives of public policy. The chancellor ob- serves with much force, "As society becomes more and more complex, and interests become more and more interlaced, the value and necessity of equity's preventive remedies be- comes greater. But, just as their beneficent possibilities have in- creased in consequence of the mag- nitude of the evils to be averted by their legitimate use, so in exact pro- portion has the possible mischief in- creased that may be caused by their illegitimate use. The English and American equitable jurisprudence is a unique system; a complex inter- weaving of principle and precedent, of reason and experience. It has progressed by slow and careful steps, guided always by careful ob- servation of the practical conse- quences of what had been done al- ready. And in no department has the adherence to precedent been so marked, in no sphere of action does it behoove the equity judge to be so careful 'to keep within the ancient merestones,' as when there is ques- tion of wielding the tremendous power of the injunction process." The chancellor distinguishes the case of Cummings v. Bank, 101 U. S. 153, ante, note to § 261, on several grounds, and cites many cases deny- ing the jurisdiction to restrain il- legal personal taxes. U. S. Kev. Stats., § 3224, provides that no suit to restrain the assess- ment or collection of any tax shall be maintained in anv court. The fact, therefore, that many suits would have to be brought at law to recover taxes paid under an uncon- stitutional statute did not warrant an injunction: Dodge v. Osborn, 240 U. S. 118, 60 L. Ed. 557, 36 Sup. Ct. 275. 489 TO PREVENT A MULTIPLICITY OF SUITS. § 267 sitions as to the extent, and operation of the doctrine which, in my opinion, appear to be supported by principle and by authority. With respect to cases of the first and the second classes, where the whole judicial controversy is always be- ds not also suffered alike by all other citizens of the district, — has no cause of action whatever, either legal or equitable, no right to any remedy from a court of justice. His only relief is an appeal to the legislature to ob- tain, if possible, a correction of the wrong, or an exercise of the elective franchise, by which perhaps other and better officers may be chosen. Cer- tain passages of the opinions may, when isolated from their context, seem to go some further; but this is the true force and effect of these cele- brated cases. No question could arise whether, under such circumstances, many citizens could unite as co-plaintiffs, or one could sue on behalf of others, since no one had any right which a court of justice could recognize. I have thus explained the true value of these decisions, because they obvi- ously lie at the foundation of many of the cases cited in this note, in which courts have pronounced against the claims of tax-payers. That they really differ most essentially, in their most vital principle, from these lat- ter cases is evident from the fact universally conceded that a tax-payer upon whom an illegal tax has been imposed has some cause of action, some remedial right; he has, at least, the right to maintain an action at law to recover damages when an illegal tax has been enforced. There is there- fore a fundamental difference between him and the citizen mentioned in Doolittle V. Supervisors, 18 N. Y. 155, and Roosevelt v. Draper, 23 N. Y. 318 ; and the principle established by those cases has no legitimate applica- tion to the questions concerning the equitable jurisdiction to grant relief to a body of tax-payers. In Howell v. Buffalo, 2 Abb. App. 412, 416, it was held that a suit by numerous owners of separate lots to set aside an illegal assessment does not come within the equity jurisdiction to prevent a multiplicity of suits; the plaintiffs cannot unite in an equitable action merely to avoid the neces- sity of separate actions. The court gave the following theory of the doctrine as the reason for their conclusion : "It is not a case for the appli- cation of the rule for the prevention of a multiplicity of suits. No one of the plaintifs is threatened with many suits or much litigation." I need only remark, that if this test of the doctrine be correct, then many English and American judges have often fallen into grievous error. In Dodd v. Hartford, 25 Conn. 232, 238, a similar suit upon similar circumstances, the same ruling was made, on the ground that each plaintiff had an ade- quate remedy at law. Youngblood v. Sexton, 32 Mich. 400, 410, 20 Am. Rep. 054, was a suit by numerous tax-payers to enjoin the collection of a personal tax claimed § 267 EQUITY JURISPRUDENCE. 490 twecn one distinct partj^ complaining and one party defend- ant, there is no substantial disagreement; the rule has been to be illegal. Held to be settled in Michigan that in case of such a per- sonal tax equity has no jurisdiction to restrain its collection, even if illegal, the ordinary remedy by action at law being adequate. Cooley, J., said (p. 410) : ''The jurisdiction cannot be rested on the doctrine of preventing a multiplicity of suits, because the principles that govern that jurisdiction have no application to this ease. It is sometimes admissible when many parties are alike affected or threatened by one illegal act, that they shall unite in a suit to restrain it; and this has been done in this state in the case of an illegal assessment of lands : Scofield v. Lansing, 17 Mich. 437. But the cases are very few and veiy peculiar, unless each of the complain- ants has an equitable action on his own behalf. Now, the nature of this case is such that each of these complainants, if the tax is invalid, has a remedy at law, which is as complete and ample as the law gives in any other cases. He may resist the sheriff's process as he might any other trespass; or he may pay the money under protest, and at once sue for and recover it back. But no other complainant has any joint interest with him in resisting this tax. The sum demanded of each is distinct and sepa- rate, and it does not concern one of the complainants whether another pays or not. All the joint interest the parties have is a joint interest in a question of law; just such an interest as might exist in any ease where separate demands are made of several persons. [Gives one or two ex- amples.] We venture to say that it would not be seriously suggested that a common interest in any such question at law, when the legal interests of the parties were wholly distinct, could constitute any ground of equitable jurisdiction, where the several controversies affected by the question were purely legal controversies. Suits do not become of equitable cognizance because of their number merely. This was afiinned in Lapeer Co. v. Hai't, Harr. (Mich.) 157, and in the two cases of Sheldon v. School Dist.. 2."> Conn. 224, and Dodd v. Hartford, 25 Conn. 232. In these cases tlie single assessment of a school tax was involved, and the parties concerned, if per- mitted to unite, might have had the whole controversy determined in one suit. In this case, the controversy is either separate, as the tax is several against each individual; or it is general, as it affects all the persons taxed under the law"; citing also Jones v. Garcia, 1 Turn. & R. 297, and Yeaton V. Lenox, 8 Pet. 123, and Adam's Equity, 198-202.^ I have thus quoted at some length from Judge Cooley's opinion, because it is one of the cleai-- § 266, (1») It has been observed decided weight of authority." "U'ill- that "Judge Cooley in his work on iams v. County Court, 26 W. Va. 488, Taxation in the edition of 1879, in 503, 53 Am. Rep. 94, by Green, J., effect, admits that his views as criticising Youngblood v. Sexton, above expressed are opposed to the 491 TO PKEVENT A MULTIPLICITY OF SUITS. § 267 settled with unanimity. The only apparent exception con- sists in the fact that formerly the courts of equity required est statements of the theory which it supports to be found in the reports. It should be observed that he nowhere adopts the test laid down by some judges, that each of the numerous persons must himself he exposed to many actions, in order that a court of equity may interfere. With respeet to the reasoning of the opinion, it would, if correct, overturn at one blow many well-settled cases not relating to taxation, in which the jurisdiction has been asserted both by English and American courts. For example, it has been held that one copyholder cannot maintain a suit in equity against his lord of the manor, to enjoin or to set aside an excessive fine, because the question is legal, and the defense would be perfectly available to him in an action at law brought to recover the fine. But numerous copyholders or all copyholders of the manor may unite in a bill in equity to set aside excessive fines imposed on each, for the purpose of avoiding a multiplicity of suits. I cannot perceive any material distinction, or why every position of Judge Cooley's opinion would not apply to and contra- dict this case. Many more examples might be given from cases quoted in preceding paragraphs. The objection that the primary remedy of each tax-payer is legal is certainly too broad; for it would deny the jurisdic- tion in the vast majority of cases where it is confessedly proper and uni- versally admitted. The chief object of the jurisdiction, the fundamental ground and reason for its existence, is, that it furnishes a complete and final remedy by one equitable decree to parties whose primary rights, cause of action, and remedies are wholly legal, either to a single party who must otherwise maintain or be subjected to numerous actions at law, or to a body of persons, where each of them must otherwise maintain or be subjected to a similar action at law. Sheldon v. School District, 25 Conn. 224, 228, was a suit by thirty-nine tax-payers to enjoin the enforce- ment against them of an illegal school tax. Held, that each plaintiff had an adequate remedy at law, and the case did not come within the doctrine as to the prevention of a multiplicity of suits. The court said: "The mere saving the expense of separate suits is no ground for the plaintiffs uniting in a bill in equity to obtain an injunction against the doing of an act which would give each of them a right of action at law." The Con- necticut court seems to have subsequently abandoned this position, for it has since, in several instances, sustained such actions on behalf of tax- payers. See cases cited ante, under § 2G0. In Harkness v. Board of Pub- lic Works, 1 McAr. 121, 131-133, it was held that equity will set aside an illegal tax assessed on the property of a tax-payer, when necessary, — 1. To remove a cloud from his title; or 2. To avoid irreparable mischief; or 3. To prevent a multiplicity of suits. But that when individual tax- payers have been assessed under an illegal tax on property owned by them § 267 EQUITY JURISPRUDENCE. 492 the complainant to establish his disputed legal estate, in- terest, or primary right by repeated recoveries at law, whereas one successful trial at law is now generally re- garded as sufficient. It is also possible that there might separately, and they unite in an action, this is not a case coming within the doctrine as to the prevention of a multiplicity of suits, and equity has no jurisdiction. The opinion gives different reasons, and does not show very clearly on what ground the court places its conclusion. While it seems to use arguments similar to those emploj^ed by Judge Cooley, supra, the adequacy of the legal remedy, the absence of any joint interest, etc., it also seems to rely chiefly on the theory that each tax-payer is only in- jured in common with all others, and that he, therefore, has no cause of action or remedial right which any court of justice can recognize and protect. See supra. The New York cases, Kilbourne v. St. John, 59 N. Y. 21, 27, 17 Am. Rep. 291, Ayres v. Lawrence, 63 Barb. 458, Tift v. Buffalo, 1 Thomp. & C. 150, and Comins v. Supervisors, 3 Thomp. & C. 296, were suits brought to set aside or to restrain town or city bonding proceedings, unauthorized by law, by which a municipal debt would be created, and the burden of individual taxation would be increased. The courts held that no such suit could be maintained, either by tax-payers uniting, or by one or some suing on behalf of others, or by a single tax-payer suing by himself alone. But the reasons for this conclusion have no real connection with nor bearing upon the doctrine concerning the prevention of a multiplicity of suits. The ground upon which the judgment of the court was rested is the same that had been before announced in Doolittle v. Supervisors, 18 N. Y. 155, and Roosevelt v. Draper, 23 N. Y. 318, viz., that the individual tax-payer, under these circumstances, has no cause of action, legal or equitable, — has no remedial right acknowledged by a court of justice. If he has no right or remedy individually, he does not obtain any by joining himself with other tax-payers in the same situation, as co-plaintiffs. This theory does not and cannot affect the doctrine as to multiplicity of suits. The jurisdiction to prevent a multiplicity of suits never confers upon a party a remedial right where none of any kind existed before ; its exercise neces- sarily and always assumes that the parties had some prior existing cause of action or remedial right, either equitable or more commonly legal. In Barnes v. Beloit, 19 Wis. 93, and Newcomb v. Horton, 18 Wis. 566, 568, it was held that a number of separate lot-owners or tax-payers cannot unite, and one cannot sue on behalf of himself and others, to restrain the enforcement of an invalid tax or assessment, since there is no sufficient common interest among them; but one lot-owner or tax-payer is permitted in Wisconsin to bring such an action for himself alone. In the case of 493 TO PEEVENT A MULTIPLICITY OF SUITS. § 267 still be some difference among individual equity judges in regard to the extent to which they would compel a com- plainant to establish his legal title, and to prosecute or suffer repeated actions at law, before they would interfere Cutting V. Gilbert, 5 Blatehf, 259, 261-263, six firms of bankers united in the bill on behalf of themselves and others, etc., to restrain United States revenue officers from assessing and collecting a certain United States tax. Nelson, J., was of the opinion that the plaintiffs Avere not liable for the tax, but held that the bill could not be sustained, since the remedy by ac- tion at law was adequate. He stated his view of the doctrine in the fol- lowing clear and unmistakable language: "The interest that will allow parties to join in a bill, or that will allow the court to dispense with the presence of all the parties, when numerous, except a determinate number, is not only an interest in the question, but one in common in the subject- matter of the suit; such as the case of disputes between the lord of a manor and his tenants, or between the tenants of one manor and those of another; or where several tenants of a manor claim the profits of a fair; or in a suit to settle a general fine to be paid by all the copyhold tenants of a manor, or in order to prevent a multiplicity of suits. In all these and the like instances given in the books, there is a community of interest growing out of the nature and condition of the right in dispute: for al- though there may not be any privity between the numerous parties, there is a common title out of which the question arises, and which lies at the foundation of the proceedings. ... In the case before me the only matter in common among the plaintiffs, or between them and the defendant, is an interest in the question [of law] involved, which alone cannot lay a foun- dation for the joinder of parties." He goes on to show that an injunction at the suit of a single tax-payer would not, as a matter of fact, prevent a multij^licity of actions. There is no room here for misunderstanding. Is the learned judge correct, upon the authorities, in the test which he lays down? Undoubtedly, in many of the decided cases, there is some- thing more than a community of interest in the question at issue, or in the remedy demanded; there is a community of interest in the subject- matter, in the right, or, to use the expressive language of Mr. Justice Nel- son, "a common title out of which the question arises." As, for example, where all the tenants of a manor assert a right of common of some kiiul arising from the customs of the manor; or where the lord asserts some claim of rent against all the tenants arising in the same manner; or where all the parishioners assert a modus against the parson; and other like in- stances. But there certainly are many cases, relating to various kiiuls of subject-matter, in which there is no common title, no community of in- terest in the subject-matter or in the right, but only a community of § 267 EQUITY JURISPRUDENCE. 494 on his behalf; but this difference, if it exists, only affects the application of a well-settled rule, and not the rule itself. In cases belonging to the third and fourth classes, when a body of persons assert some claim against a single distinct party, or conversely a single distinct party asserts some claim against a body of persons, the fundamental question, upon which the exercise of the jurisdiction confessedly rests, and over which there has been a direct antagonism of judicial opinion, relates to the nature, extent, and object interest in the question at issue or in the remedy demanded. In most of them this community among the numerous body of interest in the ques- tion and in the remedy arises from the fact that one wrongful act or one legal injury was done to all alike; but still the legal right of each is wholly separate and distinct. The group of cases where separate owners have united to obtain relief against a single nuisance, or trespass, or evasion of water privileges, etc., are examples. The many cases in which sepa- rate lot-owners have been relieved from an illegal assessment imposing a lien upon their individual lands are also examples. But even this bond of union has not always been present, nor always been required. The mere community of interest in the question at issue and in the relief to be obtained has been held sufficient, although the wrongful act done, the injury inflicted, was separate and distinct to each individual of the nu- merous body of claimants. The celebrated case growing out of Schuyler's fraud in making unlawful overissues of stock to different persons at dif- ferent times, as described under a former paragraph (see ante, § 261), is a striking illustration of the power of courts to disregard mere formal restrictions for the purpose of doing substantial justice. I would remark, in passing, that the court which sustained the Schuyler case as a proper exercise of the equitable jurisdiction to prevent a multiplicity of suits cannot with much consistency refuse to relieve a body of tax-payers or separate lot-owners from an illegal tax or assessment, on the gi'ound that there is not a sufficient community of interest among them. The conclu- sion from the foregoing examination seems to be irresistible, that the test suggested by Mr. Justice Nelson in the well-known case of Cutting v. Gilbert, 5 Blatchf. 259, is not supported by authority or by principle. In Phelps V, City of Watertown, 61 Barb. 121, 123, a suit by a single citizen and tax-payer to restrain the city officials from making unau- thorized and unlawful contracts which would create a public debt and result in additional taxes and assessments, was held not to be within the equitable jurisdiction of preventing a multiplicity of suits. Johnson, J., said (p. 123) : "Nor is there any ground to apprehend that the plaintiff 495 TO PREVENT A MULTIPLICITY OF SUITS. 267 of the common interest which must exist among the indi- vidual members of the numerous body, and between them and their single adversary, in order that a court of equity may interfere. Incidental to this main element, the fur- ther question has been raised. What party is entitled to relief for the pui-jDose of preventing a multiplicity of suits? — whether the plaintiff who invokes the aid of a court upon that ground must himself be the person who would otherwise, and against his own choice, be exposed to a re- peated and vexatious litigation?* We have also seen, in will become involved in a multiplicity of actions by the acts complained of, unless he seeks them voluntarily." So far as this passage has any meaning as an argument, it implies that the jurisdiction to prevent a multiplicity of suits will never be exercised on behalf of a plaintiff, when he himself would otherwise be obliged voluntarily — that is, of his own option or choice — to bring numerous actions in order to obtain justice, — a position which is directly opposed to the universally admitted and familiar rules, since the most important branch of the jurisdiction applies to parties in exactly that situation. § 267, (a) Cases of the "Third Class" Denying the Jurisdiction. — See Baker v. Portland, 5 Saw. 566, Fed. Cas. No. 777 (no "privity of in- terest" among the complainants) ; Scottish Union, etc., Ins. Co. v. J. H. Molihnan Co., 73 Fed. 66; Thomas v. Council Bluffs Canning Co., 92 Fed. 422, 34 C. C. A. 428; Washington Co. V. Williams, 111 Fed. 801, 49 C. C. A. 621; Turner v. City of Mo- bile, 135 Ala. 73, 33 South. 133, 147, and the tax cases cited in the notes to §§ 265, 266. But several of these cases may be distinguished, for the reason that the exercise of the juris- diction was unnecessary or would be ineffectual, under the principles of §§ 251%, 251%, ante. Scottish Union, etc., Ins. Co. v. J. H. Mohlman Co., supra, was a bill by several insur- ance companies against the same in- sured to enjoin actual or prospective suits at law growing out of the same loss, to each of which the complain- ants had the same defense. La- combe, Cir., J., cited no authorities in support of his denial of the juris- diction, but was of the opinion that the plaintiff in the suits at law, if unsuccessful in one or two suits, would not prosecute the other. For bills sustained under circumstances precisely similar, see ante, § 261, note (b), near beginning of the note. For bills brought by several insurers against the same insured, where ju- risdiction was properly declined be- cause there was no common defense, see ante, § 250, note (b), Thomas v. Council Bluffs Canning Co. was a bill by numerous complainants for spe- cific performance of contracts for the sale of their shares of stock. The relief sought was in substance pecuniary, and the court intimated §267 EQUITY JURISPRUDENCE. 496 a certain class of cases growing ont of some nnanthorized public official act, the principle has been announced that, under the circumstances, the injured persons, citizens, or inhabitants of a local district had no cause of action of any- kind, no claim to any relief from a court of justice. This principle, which may be correct, is avowedly based alone upon considerations of governmental policy and public expediency, and has therefore no legitimate connection that the complainants might avoid a multiplicity of legal actions equally as well by assigning their claims to one of their number. Washington County V. Williams was a suit by numerous holders of an issue of county bonds, payable from the pro- ceeds of a special tax, to establish the validity of the bonds and re- cover the amount due thereon. Cald- well and Thayer, Cir. JJ. (Sanborn, Cir. J., dissenting), denied that the jurisdiction of equity existed in such a case on the ground of avoiding a multiplicity of suits; but also pointed out that a court of equity was powerless to grant complete re- lief in the premises, since it could not command the levy of a tax, and hence the complainants, even if suc- cessful in equity, would be com- pelled to resort to their legal reme- dies by mandamus in order to enforce the decree. The opinion of McClellan, C. J., in Turner -v. City of Mobile contains a vigorous denial of the jurisdiction in case of class third where there is no "privity" among the plaintiffs. The learned chief justice clearly points out, how- ever, as we have seen above, ante, note (e) to § 251%, that the decision in the case is not necessarily at va- riance with any principle contended for by the author, and in making the question of jurisdiction depend on the question of "privity," ignores the early decision of his court in Morgan v. Morgan, 3 Stew. (Ala.) 383, 21 Am. Dec. 638, where any dis- tinction, based on "privity," in bills of peace, is expressly repudiated. The majority opinion in Watson v, Huntington, 215 Fed, 472, 131 C. C. A. 520, a case of "class third," denies the jurisdiction as laid down by the author and follows the recent Ala- bama and Mississippi cases men- tioned in the note to § 264. This, in essence, was a suit by thirty-eight stockholders who had invested on the faith of the fraudulent represen- tations of the defendant, an offi- cer of the corporation, to recover from him the amount of their invest- ments. The facts are far from clear; but inasmuch as the plain- tiffs' investments took place through a series of years, it would seem highly probable that they were the result, in part at least, of separate misrepresentations and acts of mis- conduct on defendant's part, and hence presented separate and dis- tinct issues between him and each plaintiff; if that be the case, it is governed by the principle of § 251^/4, ante. The instructive dissenting opinion of Eogers, Cir. J., earnestly upholding the author's conclusions, is entitled to especial weight, owing to his many years' experience as pro- fessor of Equity and dean of the Law School in Yale University. 497 TO PREVENT A MULTIPLICITY OF SUITS. 267 with the doctrine concerning the prevention of a multi- plicity of suits. The principle has, however, in some sub- sequent decisions, been regarded and acted upon, very im- properly in my opinion, as though it directly applied to, interfered with, abridged, or regulated the equitable juris- diction to prevent a multiplicity of suits. The error in- volved in the mingling of two entirely distinct matters has, I think, been shown with sufficient clearness in a previous note. Judge Eogers points out, at page 488, that a dictum of Mr. Justice Peckham in Equitable Life Assur. See. V. Brown, 213 U. S. 25, 51, 53 L. Ed. 682, 693, 29 Sup. Ct. 404, is not to be taken as a denial of the jurisdiction in class third. The dic- tum was this: "It does not rest with complainant to urge as a foundation for his suit that the defendant may thereby be saved a multiplicity of suits by other parties when the de- fendant raises no objection to such possible suits and urges no such ground for jurisdiction in equity of the complainant's suit." In this case the suit was by a single plain- tiff, suing for himself alone, and not as the representative of a class. The mere possibility of other suits like the plaintiff's is not a sufficient ground for jurisdiction, as has been shown in § 251%. Cases which deny the jurisdiction in "class third" appear to be rela- tively more numerous than those that deny the jurisdiction in "class fourth." In support of such denial of the jurisdiction in the former class the courts, so far as the editor has noticed, content themselves, in the main, with the dogmatic asser- tion that "the jurisdiction to prevent a multiplicity of suits cannot prop- erly be invoked except by the person 1—32 who may be subjected to them"; or that the numerous plaintiffs "cannot individually complain that others are compelled to sue, for they have no share in the expense or vexation of each other's suits." A convincing answer to this objection may be found in the two considerations clearly set forth in Smith v. Bank of New England, 69 N. H. 254, 45 Atl. 1082, by Carpenter, C. J.: "For the determination of one issue the public must provide seventy-nine sessions of the court and seventy- nine juries. In short, a single issue, upon which the rights of all parties interested in the controversy depend, must be tried seventy-nine times, and the parties and the public be subjected to the worse than useless expense of seventy-eight trials. . . . A speedy and inexpensive adjudica- tion of their common right is quite as important to the numerous plain- tiffs as to the single defendant, and it may be much more so. Cases may often happen where a rejection of their application for equitable inter- vention to prevent a multiplicity of suits would operate practically as a denial of justice. Suppose, e. g., that each of one hundred persons held an interest coupon for $6, on bonds issued by a town or other cor- poration, and that the only contro- 268 EQUITY JURISPRUDENCE. 498 § 268. Conclusions as to the Third and Fourth Classes.^ From a careful comparison of the actual decisions em- braced in the third and fourth classes, and which are quoted under the foregoing paragraphs, the following proposi- tions are submitted as established by principle and by authority, and as constituting settled rules concerning this branch of the equitable jurisdiction. In that particular family of suits, whether brought on behalf of a numerous body against a single party, or by a single party against a numerous body, which are strictly and technically "bills of peace," in order that a court of equity may grant the relief and thus exercise its jurisdiction on the ground of preventing a multiplicity of suits, there does and must exist among the individuals composing the numerous body, or between each of them and their single adversary, a com- verted question was as to the valid- itj of the bonds. Each coupon-holder would have a clear and, in a legal sense, an adequate remedy at law. But if he recovered in an action at law, he would realize nothing, as the necessary expenses of the suit would exceed the amount recovered. If, on the other hand, the question were de- termined in one suit, each might realize substantially the amount of his demand. To hold that equity will intervene in behalf of the corpora- tion, but not in behalf of the coupon- holders, to compel the issue to be tried in one suit, would bring de- served reproach upon the administra- tion of justice." Indeed, the conjecture may be hazarded that the denial of the juris- diction may frequently effect a greater practical injustice in cases of "class third" than in most cases of class fourth. In a typical case of class fourth, where the single party is assailed by numerous suits involv- ing the same issues, a determination of one or a few of these in his favor will generally, perhaps, result in the abandonment of the others, even without the interposition of equity; while in very many cases of class third, the burden of a single great wrong is made to fall upon a large number of individuals, few of whom can, unaided, afford the expense of litigation, and thus practical immu- nity is secured for the wrong-doer. See the forcible observations of Walker, J,, in Greedup v. Franklin County, 30 Ark. 101, quoted ante, note (d) to § 260. §268, (a) This section is cited in Washington County v. Williams, 111 Fed. 801, 815, 49 C. C. A. 621, dis- senting opinion of Sanborn, Cir. J.; in Barton Nat. Bank v. Atkins, 72 Vt. 33, 47 Atl. 176; Osborne v. Wis- consin Cent. E. Co., 43 Fed. 824, by Harlan, J., cases illustrating the "third class"; in City of Albert Lea V. Nielsen, 83 Minn. 246, 86 N. W. 83, a case of the "fourth class." Sec- tion 268 et seq. are cited in Kansas City Southern Ey. Co. v. Quigley, 181 Fed. 190. 499 TO PREVENT A MULTIPLICITY OF SUITS. § 268 mon right, a community of interest in the subject-matter of the controversy, or a common title from which all their separate claims and all the questions at issue arise; it is not enough that the claims of each individual being sep- arate and distinct, there is a community of interest merely in the question of law or of fact involved, or in the land and form of remedy demanded and obtained by or against each individual.^ The instances of controversies between the lord of a manor and his tenants concerning some general right claimed by or against them all arising from the cus- tom of the manor, or between a parson and his parishioners concerning tithes or a modus affecting all, and the like, are examples. It must be admitted, as a clear historical fact, that at an early period the court of chancery confined this branch of its jurisdiction to these technical ''bills of peace." The above rule, as laid down in them, was for a consider- able time the limit beyond which the court would not exer- cise its jurisdiction in cases belonging to the third and fourth classes. For this reason many passages and dicta found in the judicial opinions of that day must be regarded as merely expressing the restrictive theory which then pre- vailed in the court of chancery, and as necessarily modified by the great enlargement and extension of the jurisdiction which has since taken place; and at all events, these dicta and incidental utterances should, on any correct principle of interpretation, be treated as confined, and as intended to be confined, to the technical "bills of peace" in which they occurred, or concerning which they were spoken. Notwith- standing this general theory of the jurisdiction which pre- vailed at an early period, it is certain that even then the court sometimes transcended the arbitrary limit, and exer- cised the jurisdiction, where there was no pretense of any § 268, (b) Quoted, Carlton v. New- Lawson, 43 Ind. App. 226, 87 N. E. man, 77 Me. 408, 1 Atl. 194; Zahn- 47; Illinois Steel Co. v. Schroeder, hizer v. Hefner, 47 W. Va. 48, 35 133 Wis. 561, 126 Am. St. Rep. 977, S. E. 4; also, in Town of Fairfield v. 14 I.. E. A. (N. S.) 239, 113 N. W. Southport Nat. Bank. 77 Conn. 423, 51. 59 Atl. 513; Vandalia Coal Co. v. §269 EQUITY JURISPRUDENCE. 500 community of right, or title, or interest in the subject- matter. § 269.a This early theory has, however, long been aban- doned. The jurisdiction, based upon the prevention of a multiplicity of suits, has long been extended to other cases of the third and fourth classes, which are not technically ''bills of peace," but "are analogous to" or ''within the principle of" such bills. Under the greatest diversity of circumstances, and the greatest variety of claims arising from unauthorized public acts, private tortious acts, inva- sion of property rights, violation of contract obligations, and notwithstanding the positive denials by some American courts, the weight of authority is simply overwhelming that the jurisdiction may and should be exercised, either on be- half of a numerous body of separate claimants against a § 269, (a) This section is cited with approval in San Lung v. Jackson, 85 Fed. 502; Liverpool & L. & G. Ins. Co. V. Clunie, 88 Fed. 160, 167; Vir- ginia-Carolina Chemical Co. v. Home Ins. Co., 113 Fed. 1, 5; Washington County V. Williams, 111 Fed. 801, 815, 49 C. C. A. 621; dissenting opin- ion of Sanborn, Cir. J.; Osborne v. Wisconsin Cent. K. Co.. 43 Fed. 824, by Harlan, J,; Dumars v. City of Denver (Colo. App.), 65 Pae. 580; Macon, etc., E. Co. v. Gibson, 85 Ga. ], 21 Am. St. Rep. 134, 11 S. E. 442; Indiana, I. & I. R. Co. v. Swannell, 157 111. 616, 30 L. R. A. 290, 297, 41 N. E. 989; Barton Nat. Bank v. At- kins, 72 Vt. 33, 47 Atl. 176; Carey V. Coffee-Stemming Mach. Co. (Va.), 20 S. E'. 778; Bosher v. Richmond, etc.. Land Co., 89 Va. 455, 37 Am. St. Rep. 879, 16 S. E. 360; and in Brizzolara v. City of Ft. Smith, 87 Ark. 85, 112 S. W. 181; and Webb v. Cope (Mo.), 192 S. W. 934. All these are cases illustrating the author's "third class." This section is cited with approval in De Forest v. Thompson, 40 Fed. 375; United States v. Southern Pac. R. Co., 117 Fed. 544, 554; Wyman v. Bowman (C. C. A.), 127 Fed. 257, 264; Farmington Corp. v. Bank, 85 Me. 46, 52, 26 Atl. 965; Kellogg v. Chenango Valley Sav. Bank, 42 N. Y. Supp. 379, 11 App. Div. 458; and in Supreme Lodge of Fraternal Union of America v. Ray (Tex. Civ. App.), 166 S. W. 46; cases of the fourth class. This section is cited, generally, in Southern Steel Co. v. Hopkins, 174 Ala. 465, Ann. Cas. 1914B, 692, 40 L. R. A. (N. S.) 464, 57 South. 11; Vandalia Coal Co. v. Lawson, 43 Ind. App. 226, 87 N. E. 47; Healy v. Smith, 14 Wyo. 263, 116 Am. St. Rep. 1004, 83 Pac. 583; sections 269-274 are cited in Southern Steel Co. v. Hopkins, 157 Ala. 175, 131 Am. St. Rep. 20, 16 Ann. Cas. 690, 20 L. R. A. (N. S.) 848, 47 South. 274. 501 TO PREVENT A MULTIPLICITY OF SUITS. 269 single party, or on behalf of a single party against such a numerous body, although there is no '* common title," nor ^'community of right" or of ''interest in the subject- matter," among these individuals, but where there is and because there is merely a community of interest among them in the questions of law and fact involved in the general controversy, or in the kind and form of relief de- manded and obtained by or against each individual member of the numerous body> In a majority of the decided cases, this community of interest in the questions at issue and in the kind of relief sought has originated from the fact that the separate claims of all the individuals composing the body arose by means of the same unauthorized, unlawful, or illegal act or proceeding. Even this external feature of unity, however, has not always existed, and is not deemed essential. Courts of the highest standing and ability have § 269, (b) Quoted with approval, Carlton v. Newman, 77 Me. 408, 1 Atl. 194; Keese v. City of Denver, 10 Colo. 113, 15 Pac. 825; Smith v. Bank of New England, 69 N. H. 254, 45 Atl. 1082; and in the re- cent cases: Creer v. Bancroft Land & Irr. Co., 13 Idaho, 40-7, 90 Pac. 228; Breimeyer v. Star Bottling Co., 136 Mo. App. 84, 117 S. W. 119; Kvello v. City of Lisbon (N. D.), 164 N. W. 305; Guffanti v. National Surety Co., 196 N. Y. 452, 134 Am. St. Kep. 848, 90 N. E. 174; Cloyes v. Middlebury Electric Co., 80 Vt. 109, 11 L. R. A. (N. S.) 693, 66 Atl. 1039; cases of the "third class"; Corey v. Sherman, 96 Iowa, 114, 32 L. R. A. 490, 509, 64 N. W. 828, case of a single plaintiff suing in behalf of a rumerous body ; Louisville, N. A. & C. R. Co. V. Ohio V. L & C. Co., 57 Fed. 42, 45; Smith v. Dobbins, 87 Ga. 303, 13 S. E. 496; Siever v. Union Pac. R. Co. (Neb.), 93 N. W. 943; and the recent cases: Goldfield Con- solidated Mines Co. v. Richardson, 194 Fed. 198; Town of Fairfield v. South- port Nat. Bank, 77 Conn. 423, 59 Atl. 513; cases of the "fourth class"; Hale V. Allinson, 102 Fed. 790, 791, 792, distinguishing the "fourth class." The text is also quoted in Watson v. Huntington, 215 Fed. 472, 131 C. C. A. 520, dissenting opinion of Rogers, C. J.; and in Rogers v. Boston Club, 205 Mass. 261, 28 L. R, A. (N. S.) 743, 9] N. E. 321, where it is said to be settled by the great preponder- ance of authority. "We are not dis- posed to deny that jurisdiction on the ground of preventing a multiplicity of suits may~ be exercised in many cases on behalf of a single complain- ant against a number of defendants, although there is no common title or community of rights or interest in the subject-matter among such defend- ants, but where there is a community of interest among them in the ques- tions of law and fact involved in the general controversy." Hale v. Allin- son, 188 U. S. 56, 23 Sup. Ct. 244, 252. § 269 EQUITY JURISPRUDENCE. 502 repeatedly interfered and exercised this jurisdiction, where the individual claims were not only legally separate, but were separate in time, and each arose from an entirely separate and distinct transaction, simply because there was a community of interest among all the claimants in the question at issue and in the remedy.^' The same over- whelming weight of authority effectually disposes of the rule laid down by some judges as a test, that equity will never exercise its jurisdiction to prevent a multiplicity of suits, unless the plaintiff, or each of the plaintiffs, is him- self the person who would necessarily, and contrary to his own will, be exposed to numerous actions or vexatious liti- gation. This position is opposed to the whole course of decision in suits of the third and fourth classes from the earliest period down to the present time.^ While the fore- going conclusions are supported by the great weight of judicial authority, they are, in my opinion, no less clearly sustained by principle. The objection which has been urged against the propriety or even possibility of exercis- ing the jurisdiction, either on behalf of or against a numer- ous body of separate claimants, where there is no '^ common title," or community ''of right" or *'of interest in the subject-matter," among them, is, that a single decree of the court cannot settle the rights of all; the legal position and claim of each being entirely distinct from that of all §269, (c) {Quoted with approval in ion of Eogers, Car. J.; Guffanti v. Lockwood County v. Lawrence, 77 Me. National Surety Co., 196 N. Y. 452, 297, 309, 52 Am. Rep. 763, a case of 134 Am. St. Rep. 848, 90 N. E. 174; the "third class"; Corey v. Sherman, Cloyes v. Middlebury Electric Co., 80 96 Iowa, 114, 32 L. R. A. 490, 509, 64 Vt. 109, 11 L. R. A. (N. S.) 693, 66 N. W. 828, case of a single plaintiff Atl. 1039. suing in behalf of a numerous body; §269, (d) Quoted with approval in Louisville, N. A. & G. R. R. Co. v, Carlton v. Newman, 77 Me. 408, 414, 1 Ohio Val. L & C. Co., 57 Fed. 42, 45, Atl. 194, a case of the "third class"; a case of the "fourth class." The and in the recent cases: Goldfield text is also quoted in the following Consolidated Mines Co. v, Richardson, recent cases: Goldfield Consolidated 394 Fed. 198; Watson v. Huntington, Mines €o.. v. Richardson, 194 Fed. 215 Fed. 472, 131 C. C. A. 520, dis- 198; Watson v. Huntington, 215 Fed. senting opinion of Rogers, Cir. J. 472, 131 C. C. A. 520, dissenting opin- 503 TO PREVENT A MULTIPLICITY OF SUITS. § 269 the others, a decision as to one or some could not in any manner bind and dispose of the rights and demands of the other persons, and thus the proceeding must necessarily fail to accomplish its only purpose, — the prevention of fur- ther litigation. This objection has been repeated as though it were conclusive ; but like so much of the so-called ' ' legal reasoning" traditional in the courts, it is a mere empty formula of words without any real meaning, because it has no foundation of fact, — it is simply untrue; one arbi- trary rule is contrived and then insisted upon as the reason for another equally arbitrary rule.^ The sole and suffi- cient answer to the objection is found in the actual facts. The jurisdiction has been exercised in a great variety of cases where the individual claimants were completely sep- arate and distinct, and the only community of interest among them was in the question at issue and perhaps in the kind of relief, and the single decree has without any difficulty settled the entire controversy and determined the separate rights and obligations of each individual claimant. ^ The same principle therefore embraces both the technical § 269, I While this result has been accomplished in the Schuyler fraud case, 17 N. Y. 592, in the water company case, L. R. 2 Ch. 8, in the case of the complicated contract, 7 N. J. Eq. 440, and in other like instances where the separate demands of the claimants had no common origin, but each arose from a distinct transaction, and in the various tax-payers' cases, it is plain that the objection under consideration is merely illusory; that it is truly what I have called it, an empty formula of words without any real meaning. Much of this a priori reasoning explaining why a par- ticular thing could not be done, repeated by judge after judge, has in like manner been exploded simply by doing the thing which had, through ver- bal logic, been shown to be impossible. This one fact is the essence of a great deal of the modern legal reform. §269, (e) "It is true that there are which either in terms deny the neces- occasional cases where it seems to sity of such a fact or ignore it by have been supposed that there must be granting relief where the fact did not some community of interest, — some exist. And, indeed, it is difficult to tie between the individuals who make find any reason why it should be up the great number; but'the great thought necessary. It has no rele- weight of authority is to the contrary vancy to the principle or purpnsr, of and there is a multitude of cases the doctrine itself, which stau § 277. Jurisdiction at Law Enlarged by the Law Courts. This subsequent jurisdiction of the courts of law may be acquired in either of two modes: by the virtual legislative action of the common-law judges themselves, or by express statutory legislation. In many instances it has happened that the law courts, by abandoning their old arbitrary rules, and by adopting notions which originated in the court of chancery, and by enlarging the scope and effect of the common-law actions, have in process of time obtained the power of gi^'ing even adequate relief in cases and under circumstances which formerly came within the exclusive domain of equity. In all such instances, the courts of equity have continued to assert and to exercise their own jurisdiction, for the reason that it could not be destroyed, or abridged, or even limited by any action of the common- law courts alone. The enlargement of the jurisdiction at law, by the ordinary process of legal development, has not, in general, affected the pre-existing jurisdiction of equity.^ » § 276, 1 See ante, § 182. § 277, 1 Ej^re v. Everitt, 2 Riiss. 381, 382, per Lord Eldon : "This court will not allow itself to be ousted of any part of its original jurisdiction because a court of law happens to fall in love with the same or a similar 104 N. E. 247; Eooney v. Michael, §277, (a) Cited with approval in 84 Ala. 585, 4 South, 421; Condon v. Converse v. Sickles, 44 N. Y. Supp. Knoxville, C. G. & L. E. R. Co. 1080, 16 App. Div. 49 (affirmed, 161 (Tenn. Ch. App.), 35 S. W. 781. N. Y. 666, 57 N. E. 1107). § 276, (b) Quoted in Chaves v. The rule is stated in Sweeny v. Myer, 13 N. M. 368. 6 L. R. A. Williams, 36 N. J. Eq. 627, as fol- (N. S.) 793, 85 Pac. 233. lows: "When courts of law have of 517 JURISDICTION ONCE EXISTING NOT LOST. § 278 § 278. The following are some of the most important classes of cases in which this principle has been applied and the equitable jurisdiction has been exercised, although a court of law may maintain an action or allow a defense upon the same facts, and may give an adequate and per- haps the very same relief: In suits to recover a fund im- pressed with a trust, or where a trust relation in view of equity exists between the parties, where the plaintiff might recover the same sum by an action of assumpsit for money had and received, or like legal action ;i* in suits involving- fraud, mistake, or accident, the equitable jurisdiction being exercised to give appropriate relief to the injured party, although a court of law has assumed power to grant relief either affirmatively l3y action, or negatively by allowing a defense ;2 in suits growing out of the relation of suretyship, jurisdiction." See, also, Collins v, Blantern, 2 Wils. 341, 350, per Wilmot, C. J.; Atkinson v. Leonard, 3 Brown Ch. 218, 224; Harrington v. Du Chatel, 1 BroAvn Ch. 124; Bromley v. Holland, 7 Ves. 3, 19-21; Kemp v. Pryor, 7 Ves. 237, 249, 250 ; Varet v. N. Y. Ins. Co., 7 Paige, 560, 567, 568; Rathbone v. Warren, 10 Johns. 587, 595; People v. Houghtaling, 7 Cal. 348, 351; Wells v. Pierce, 27 N. H. 503, 511-514; Irick v. Black, 17 N. J. Eq. 189, 198; Sailly v. Elmore, 2 Paige, 497, 499; Lane v. Marshall, 1 Heisk. 30, 34; State v. Adler, 1 Heisk. 543, 547, 548. § 278, 1 Kemp v. Pryor, 7 Ves. 237, 249, 250 ; New York Ins. Co. v. Roulet, 24 Wend. 505; Varet v. N. Y. Ins. Co., 7 Paige, 560, 567, 568; Kirkpatrick v. McDonald, 11 Pa. St. 387, 392, 393. § 278, 2 People v. Houghtaling, 7 Cal. 348, 351 ; Wells v. Pierce, 27 N. H. 503, 511-514; Babcock v. McCamant, 53 111. 214, 217; Boyce's Ex'rs V. Grundy, 3 Pet. 210, 215; Humphries v. Bartee, 10 Smedes & M. 282, 295, 296. their own notion extended tbeir and cited in Traders' Bank of jurisdiction over cases theretofore Canada v. Fraser, 162 Mich. 315, 127 solely cognizable in equity, the N. W. 291. Thus, in Converse v. jurisdiction of the latter courts has Sickles, 44 N. Y. Siipp. lOSO, 16 App. been in no respect abridged, al- Div. 49 (affirmed, 161 N. Y. 666, 57 though when the jurisdiction at law N. E. 1107), goods were obtained by has become well established, the fraud, and the creditor was allowed equity jurisdiction has been in some to maintain a bill to impress a trust cases declined." upon the proceeds derived from tha §278, (a) The text is quoted in sale. This section of tbo text waa Chaves v. Myer. 1.^ N. M. 368, 6 cited as authority. L. R. A. (N. S.) 793, 85 Pac. 233; § 278 EQUITY JURISPRUDENCE. 518 brought by a surety against bis principal for an exonera- tion, or against co-sureties for a contribution, or against the creditor or the principal to be relieved from liability on account of the creditor's conduct, or for any other ap- propriate relief, although courts of law may give adequate relief to the surety by action upon implied contract, or by defense to an action brought against him by the credi- tor ;2 b in suits by the assignee of a thing in action, brought in his own name as equitable owner, to collect the amount due ;^ <5 and in suits to set aside or to be relieved from, or to restrain an action or judgment at law upon, a contract which is illegal, although the illegality may, either by au- thority of the law courts themselves or by express statute, be set up as a defense to an action at law brought to enforce the contract, and may thus defeat a recovery thereon; as, for example, where the contract is usurious, or given for a gambling debt, or other illegal consideration, or is contrary to good morals.^ ^ §278, 3 Eyre v. Everitt, 2 Russ. 381, 382; Sailly v. Elmore, 2 Paige, 497, 499; Minturn v. Farmers' Loan & T. Co., 3 N. Y. 498, 500, 501; Rathbone v. Wan-en, 10 Jolins. 587, 595, 596 ; King v. Baldwin, 17 Johns. 384, 388, 8 Am. Dec. 415; Irick v. Black, 17 N. J. Eq. 189, 198, 199; Wesley Church v. Moore, 10 Pa. St. 273, 278-282 ; Montagne v. Mitchell, 28 lU. 481, 486; Smith v. Hays, 1 Jones Eq. 321, 323; Viele v. Hoag, 24 Vt. 46, 51; Hempstead v. Watkins, 6 Ai'k. 317, 355, 368, 42 Am. Dec. 696; Heath v. Derry Bank, 44 N. H. 174. § 278, 4 Dobyns v. Mc Govern, 15 Mo. 662, 668 ; but the jurisdiction in such cases is practically very much limited. See Ontario Bk, v. Mumford, 2 Barb. Ch. 596, 615 ; post, § 281. § 278, 5 Collins v. Blantern, 2 Wils. 341, 350, per Wilmot, C. J. ; Brom- ley V. Holland, 7 Ves. 3, 18-20; Han-ington v. Du Chatel, 1 Brown Ch. § 278, (b) Suit for contribution, the conduct of the suit regard the though, there is ample remedy at usee as the real plaintiff. "Because law: Briggs v. Barnett, 108 Va. 404, the law tribunals have derived an 61 S. E. 797. indirect remedy it should not oust § 278, (c) See Taylor v. Reese, 44 the original jurisdiction of the chan- Miss. 89. In this case it was held eery." that the equity courts were not §278, (d) The text is cited in ousted of jurisdiction because the Hightower v. Coalson, 151 Ala. 147, law courts permit a suit in the name 125 Am. St. Rep. 20, 12 L. E. A. of the payee, for the use of the (N. S.), 659, 44 South. 53. beneficial equitable holder, and in 519 JURISDICTION ONCE EXISTING NOT LOST. § 279 § 279. Jurisdiction at Law Enlarged by Statute. — "Where, on the other hand, the new power is conferred upon the law courts by statutory legislation, the rule is well settled that unless the statute contains negative words or other language expressly taking away the pre-existing equi- table jurisdiction, or unless the whole scope of the statute, by its reasonable construction and its operation, shows a clear legislative intent to abolish that jurisdiction, the for- mer jurisdiction of equity to grant its relief under the cir- cumstances continues unabridged.* It follows, therefore, that where the statute merely by affirmative words em- powers a court of law to interfere in the case, and to grant a remedy, even though such remedy may be adequate, and even though it may be special and equitable in its nature, the previous jurisdiction of equity generally remains. ^ ^ 124; Fanning v. Dunham, 5 Johns. Ch. 122, 9 Am. Dec. 283; Gough v. Pratt, 9 Md. 526; Thomas v. Watts, 9 Md. 53C, note; Lucas v. Waul, 12 Smedes & M. 157; West v. Beanes, 3 Har. & J. 568; White v. Washington, 6 Gratt. 645, 649; but, as examples of circumstances in which the juris- diction will not be exercised, see Thompson v. Berry, 3 Johns. Ch. 394, 398; Sample v. Barnes, 14 How. 70, 73, 75. § 279, 1 Atkinson v. Leonard, 3 Brown Ch. 218, 224; Toulmin v. Price, 5 Ves. 235, 238, 239; Ex parte Greenway, 6 Ves. 812, 813; East India Co. V. Boddam, 9 Ves. 464, 466-469; Howe v. Taylor, 6 Or. 284, 291, 292; Force v. City of Elizabeth, 27 N. J. Eq. 408 ; Case v. Fishback, 10 B. Mon. 40, 41; Holdron v. Simmons, 28 Ala. 629; Bright v. Newland, 4 Sneed, 440, 442; Payne v. Bullard, 23 Miss. 88, 90, 55 Am. Dec. 74; Grain v. Barnes, 1 Md. Ch. 151, 154; Mitchell v. Otey, 23 Miss. 236, 240; Wells V. Pierce, 27 N. H. 503, 511-514. §279, (a) Quoted in Crass v. Moiilton v. Smith, 16 E. I, 126, 27 Memphis & C. R. Co., 96 Ala. 447, 11 Am. St. Rep. 728, 12 Atl. 891; Wash- South. 480; in Greil Bros. Co. v. burn v. Van Steenwyk, 32 Minn. 336, City of Montgomery, 182 Ala. 291, 349. For other statements of the Ann. Cas. 1915D, 738, 62 South. 692; rule see Darst v. Phillips, 41 Ohio at, in Chapman v. American Surety Co., 614; Sweeney v. Williams, 36 N. J. 261 111. 594, 104 N. E. 247. Eq. 627; Ludlow v. Simond, 2 Caines §279, (b) Cited with approval in Cas. 1, 2 Am. Dec. 291; Filler v. Howell V. Moores, 127 111. 67, 19 Tyler, 91 Va. 458, 22 S. E. 235; N. E. 863; Rooney v. Miehael, 84 Brandon v. Carter, 119 Mo. 572, 581, Ala. 585, 4 South. 421; Black v. 41 Am. St. Rep. 673, 675, 24 S. W. Boyd, 50 Ohio St. 46, 33 N. E. 207; 1035. See, also, Arnett v. Williams, §280 EQUITY JURISPRUDENCE. 520 § 280. The following are some of the instances in which this rule has been applied, and the equitable jurisdiction has been asserted, notwithstanding the statutory power given to the courts of law under the same condition of facts :^ In suits upon lost instruments, bonds, notes, bills, 226 Mo. 109, 125 S. W. 1154. In Black V. Boyd, 50 Ohio St. 46, 33 N. E. 207, the court said: "Statutes, however, that abrogate or abridge that jurisdiction are to be strictly construed, and if the restrictive pur- pose is not clear, it will not be extended by construction." In Thrasher v. Doig, 18 Fla. 809, the rule is stated as follows: "We can- not assent to the proposition that a remedy in equity once existing is taken away by the fact that a spe- cific remedy at law has been created, unless the latter is expressly de- clared by the law to be the only remedy." But see Osborn v. Ordi- nary, 17 Ga. 123, 63 Am. Dec. 230, where the court said: "In reference to partitions, the establishment of lost papers, the foreclosure of mort- gages, the settlement of accounts, etc. . . , notwithstanding, by the English law as adopted here, chan- cery may have had concurrent, or even exclusive jurisdiction over these or any other subject, still if full redress has been provided by statute, equity in that case is ousted of its jurisdiction, unless a special case is made by the bill." The rule of the text does not ap- ply to those cases, necessarily rare, where courts of equity have invented a remedy subsequently to the crea- tion of a remedy by statute in a particular state; the statutory rem- edy is exclusive in that state; Van Frank v. St. Louis, C. G. & Ft. S. R'y Co. (Mo.), 67 S. W. 688, 691. In that case the statutory remedy granting a lien to certain persons upon the property of an insolvent railroad company, being prior in re- spect to the time of its creation to the equitable remedy invented by the federal courts, giving priority over mortgage indebtedness to cer- tain classes of floating debts of such companies, was held to be exclusive of the latter remedy. §280, (a) Miscellaneous Illustra- tions of the Principle. — In Crass v. Memphis & C. R. R. Co., 96 Ala. 447, 11 South. 480, it is held that a com- mon carrier may maintain a bill to enforce a lien although a statute au- thorizes the sale of freight to pay charges. In Black v. Boyd, 50 Ohio St. 46, 33 N. E. 207, it was held that a statute providing for jury trial in actions for the recovery of money only does not abrogate the equitable jurisdiction in matters of account. In Kelly v. Lehigh Min. & Mfg. Co., 98 Va. 405, 81 Am. St. Eep. 736, 36 S. E. 511, it was held that a code provision which makes more effective the common-law rem- edy of detinue does not affect the jurisdiction of equity to decree the specific delivery of title papers to heirs-at-law, devisees and other per- sons properly entitled to the custody and possession of the title deeds of their respective estates, where they are wrongfully detained or withheld from them. In Filler v. Tyler, 91 Va. 458, 22 S. E. 235, it was held that a married woman may obtain an injunction for the protection of her equitable separate estate al- 521 JURISDICTION ONCE EXISTING NOT LOST. §280 and other contracts to recover the amount due;i^ in suits for the establishment or admeasurement of dower, although § 280, 1 Atkinson v. Leonard, 3 Brown Ch. 218, 224; Toulmin v. Price,; 5 Ves. 235, 238 (and see note 2, at end of the case, p. 240, Perkins's ed.) ; Ex parte Green way, 6 Ves. 812, 813 (see notes at end of the case, p. 813, Perkins's ed.) ; East India Co. v. Boddam, 9 Ves. 464, 466-469; Howe v. Taylor, 6 Or. 284, 291, 292; Allen v. Smith, 29 Ark. 74; Hickman v. Painter, 11 W. Va. 386; Force v. City of Elizabeth, 27 N. J. Eq. 408; Patton V. Campbell, 70 111. 72; Hardeman v. Battersby, 53 Ga. 36, 38 (ease of a warehouseman's receipt for cotton lost or destroyed; a court of equity has jurisdiction of a suit to recover the cotton described in the eon- tract) ; but see Mossop v. Eadon, 16 Ves. 430, 433, 434, in which the chan- cellor refused to entertain a suit on a lost note not negotiable, since the holder could recover at law. The reason given for this decision was, that in all such cases (where no profert was ever required at law), the only gi'ound of the equitable jurisdiction was the power of the court to order indemnity, where indemnity was necessary, as in suits on lost negotiable instruments; but no indemnity being needed in cases of non-neootiable though a statute may furnish a com- plete and adequate remedy at law. A statute enlarging the jurisdiction of courts of law in matters relating to husband and wife does not de- prive equity of jurisdiction of a con- tract between husband and wife re- lating to separate property. Schroe- der v. Loeber, 75 Md. 195, 23 Atl. 579, 24 Atl. 226. State statutes pro- viding for set-offs at law do not de- prive courts of the United States of jurisdiction in equity. Sowles v. First Nat. Bank, 100 Fed. 552. The settled jurisdiction of equity over corporate affairs not cut off by the enactment of statutory remedies: Ashton V. Penfield, 233 Mo. 391, 135 S. W. 938. So, the jurisdiction, in- dependent of statute, to appoint a receiver of an insolvent corporation at the suit of creditors is not af- fected by a statute providing for an action, in certain cases, by the at- torney-general: Richardson v. Peo- ple's Life & Accident Ins. Co., 28 Ky. Law Rep. 919, 92 S. W. 284. The statutory suit to quiet title does not deprive equity of jurisdic- tion: Hutchinson v. Dennis, 217 Pa. 290, 66 Atl. 524; and the creation by statute of the Massachusetts land court did not oust courts of equity of their jurisdiction to remove clouds from title, since the remedy given by statute is not as compre- hensive, adequate and complete: Me- Arthur v. Hood Rubber Co., 221 Mass. 372, 109 N. E. 162. The general jurisdiction to author- ize a trustee to borrow money for the purposes of the trust is not abridged by a statute authorizing borrowing for certain purposes; Shirkey v. Kirby, 110 Va. 455, 135 Am. St. Rep. 949, 66 S. E. 40. § 280, (b) See, also, supporting and citing the text, Bohart v. Chamberlain, 99 Mo. 622, 13 S. W. 85; and in further support of the text, see German Nat. Bk. v. Moore, 116 Ark. 490, 173 S. W. 401. § 280 EQUITY JURISPRUDENCE. 522 a statutory authority over matters of dower has been given to other courts ;2 <^ in suits to be relieved from a contract lia- bility on account of a failure of consideration, although a statute has permitted the fact to be set up as a defense in an action at law brought on the contract ;2 in suits to en- force a partnership liability or the payment of a firm debt by the estate of a deceased partner, although a statute has allowed a recovery by action at law under the same circum- stances, and this legal remedy is adequate ;^ where a statute had authorized similar relief in the action by a court of law, it did not interfere with the equitable jurisdiction by suit to enforce an inchoate lien on a judgment debtor's land, created by an imperfect levy by execution, where the exe- cution and other papers had all been lost by the defend- ant's fraud or negligence;^ <^ a statute authorizing a gar- nishment or attachment by a proceeding at law does not notes, equity could not interfere. This reasoning does not apply to those lost instruments of which profert was originally requisite in actions at law. § 280, 2 Jones v. Jones, 28 Ark. 19, 20 ; Menifee v. Menifee, 8 Ark. 9. § 280, 3 Case v. Fishback, 10 B. Mon, 40, 41 ; and see Bromley v. Hol- land, 7 Ves. 3, 18-20. § 280, 4 Holdron v. Simmons, 28 Ala. 629 ; Ala. Code, § 2142. § 280, 5 Bright v. Newland, 4 Sneed, 440, 442. § 280, (c) See, also, Efland v. equity is necessary to the assertion Efland, 96 N. C. 493, 1 S. E. 858. In of the widow's right to dower, or to Bishop V. Woodward, 103 Gti. 281, 29 secure to her the enjoyment of the S. E. 968, the court said: "Under the dower estate, a court of equity will, practice prevailing in this state, the notwithstanding the provision of the remedy provided in the Code must Code, entertain a petition praying be followed as the exclusive remedy for the assignment of dower, and when it is applicable to the facts of appropriate and adequate relief in the case, and the aid of a court of aid thereof." equity is not necessary to the asser- § 280, (d) The statutory proceed- tion of the right of dower, or the ings supplementary to execution protection and preservation of the have been held not to exclude the dower estate. Where this remedy equitable remedy by creditor's bill, cannot, by its terms, be made to Enright v. Grant, 5 Utah, 334; apply, or where, if it be applicable contra, § 281, note. See on this ques- 80 far as the assignment of dower is tion Pom. Eq. Eem., "Creditors* concerned, but the aid of a court of Bills." 523 JURISDICTION ONCE EXISTING NOT LOST. § 280 take away nor abridge the equity jurisdiction to enforce an equitable attachment or sequestration by suit under the same circumstances ;6 « i^ suits by a ward against his guardian for an accounting or to enforce the trust duty, where a statute has given jurisdiction to common-law courts to grant any similar relief ;'^ * suit by a creditor to reach the separate property of a married woman, where an action at law for the same purpose has been permitted by statute ;Sg in suits to be relieved from an illegal con- tract, or to restrain an action brought or judgment obtained thereon, although a statute has permitted the illegality to be set up as a defense in bar of any recovery on the con- tract;^ statutes permitting actions at law against an execu- tor or administrator under particular circumstances, or for special purposes, do not interfere with the general equity jurisdiction over the administration of decedents' es- §280, 6 King v. Payan, 18 Ark. 583, 587, 588; Payne v. BuUard, 23 Miss. 88, 90, 55 Am. Dec. 74 (suit by a judgtaent creditor of a corpora- tion to recover from a stockholder the unpaid amount due on his stock, not affected by a statute allowing a garnishment at law of such stock- holder) ; Lane v. Marshall, 1 Heisk. 30, 34; but see, per contra, McGough V. Insurance Bank, 2 Ga. 151, 153, 154, 46 Am. Dec. 382. § 280, 7 Grain v. Barnes, 1 Md. Ch. 151, 154. § 280, 8 Mitchell v. Otey, 23 Miss. 236, 240. § 280, 9 Bromley v. Holland, 7 Ves. 3, 18-20; Harrington v. Du Chatel 1 Brown Ch. 124; Clay v. Fry, 3 Bibb. 248, 6 Am. Dec. 654; Fanning v Dunham, 5 Johns. Ch. 122, 9 Am. Dec. 283; Gough v. Pratt, 9 Md. 526 Thomas v. Watts, 9 Md. 526, note; Lucas v. Waul, 12 Smedes & M. 157 West V. Beanes, 3 Har. & J. 568 ; White v, Washington, 5 Gratt. 645, 648 Day V. Cummings, 19 Vt. 495; but, per contra, see Thompson v. Berry, 3 Johns. Ch. 394, 398; Sample v. Barnes, 14 How. 70, 73, 75. §280, (e) The text is quoted in §280, (g) Cited to this effect in Chaves v. Myer, 13 N. M. 368, 6 First Nat. Bank v. Albertson (N. J. L. E. A. (N. S.) 793, 85 Pac. 233 Ch.), 47 Atl. 818. See, also, Eooney (does not affect equitable remedy of v. Michael, 84 Ala. 585, 4 South, following trust funds). 421; Phipps v. Kelly, 12 Or. 213, 6 § 280, (f) Chapman v. American Pac. 707. Surety Co., 261 111. 594, 104 N. E. 247. § 280 EQUITY JUEISPRUDENCE. 524 tates;^®^ and statutes authorizing courts of law to grant some distinctively equitable relief to sureties, by means of proceedings in actions at law, do not alter nor abridge the equitable jurisdiction over suretyship, even in giving the very same relief ;iii and a statute giving common-law courts the power to correct a judgment fraudulently ob- tained does not affect the equity jurisdiction to relieve against fraudulent judgments; fraud is a matter of equi- table cognizance, and the jurisdiction is not lost by legisla- tion giving the same authority to courts of law ; 12 j it is held in several of the states which have not adopted the reformed system of procedure that the statutes permitting parties to actions at law to testify as witnesses on their own behalf, and to be examined on behalf of their adversaries, do not in any manner interfere with the ancillary jurisdiction of equity to maintain suits for a discovery without relief, in § 280, 10 Clark v. Henry's Adm'r, 9 Mo. 336, 338-340; Oliveira v. Uni- versity of North Carolina, 1 Phill. Eq. 69, 70. § 280, 11 Irick v. Black, 17 N. J. Eq. 189, 198, 199; Smith v. Hays, 1 Jones Eq. 321, 323; Hempstead v. Watkins, 6 Ark. 317, 355, 368, 42 Ajn. Dec. 696 ; Harlan v. Wingate's Adm'r, 2 J. J. Marsh. 139, 140. § 280, 12 Babcock v. McCamant, 53 lU. 214, 217. §280, (h) A statute giving pro- eery powers of a court of equity. bate courts jurisdiction of claims Security Co. v. Hardenberg, 53 Conn, against estates, when the decedent 169, 2 Atl. 391. has received money in trust for any § 280, (i) Missouri Eev. Stats, purpose, does not exclude the juris- 1899, §§ 4504-4509, providing for diction of a court of equity to en- contribution between sureties, and force the trust; Howell v. Moores, authorizing an action at law by one 127 111. 67, 19 N. E. 863, citing this surety, who has paid more than his section of the text. And an act proportion of the debt, to recover authorizing the court of probate, in contribution from other sureties, all cases, upon request of the life- does not deprive such surety of his tenant, to order the executor to de- right to sue in equity for contribu- liver the property to him upon his tion. Dysart v. Crow, 170 Mo. 275, giving a bond that it shall be forth- 70 S. W. 689. coming for the remainderman at the §280, (j) See, also, Darst v. Phil- termination of the life estate does lips, 41 Ohio St. 514. not interfere with the general chan- 525 JURISDICTION ONCE EXISTING NOT LOST. § 281 aid of proceedings at law;i3k \)^\^ this conclusion is by no means unanimous. It has been decided in Pennsylvania that the peculiar system heretofore existing in that state of administering some equitable remedies through the ma- chinery of actions at law is not abrogated by statutes which conferred a limited equity jurisdiction upon the courts.^'* The radical change in the equitable and legal procedure ef- fected in many states, which permits equitable defenses to be set up, and even affirmative equitable relief to be ob- tained, by the defendant in an action at law has not, it has sometimes been held, abridged the former well-established jurisdiction of equity to restrain actions and judgments at law on the ground that the controversy involved some equi- table right or interest ;^^^ but this question has been dif- ferently answered by different courts, and on account of its great importance it will be separately examined in the fol- lowing chapter.16 § 281. When Such Statute Destroys the Equity Jurisdic- tion. — On the other hand, the decisions all admit that if the statute contains words negativing or expressly taking away the previous equitable jurisdiction, or even if, upon a fair and reasonable interpretation, the whole scope of the stat- ute shows, by necessary intendment, a clear legislative in- §280, 13 Cannon v. McNab, 48 Ala. 99; Millsaps v. Pfeiffer, 44 Miss. 805; but per contra, Riopelle v. Dbellner, 26 Mich. 102; Hall v. Joiner, 1 S. C. 186; and see ante, §§ 193, 194. §280, 14Biddle v. Moore, 3 Pa. St. 161, 175, 176; Wesley Church v. Moore, 10 Pa. St. 273, 279-282. These cases arose under early statutes?, which gave only a partial equity jurisdiction. § 280, 15 Dorsey v. Reese, 14 B. Mon. 127, 128; and see, on this ques- tion, Erie Railway Co. v. Ramsey, 45 N. Y. 637; Schell v. Erie R'y Co., 51 Barb. 368. §280, 16 See post, §357. § 280, (k) In Union Passenger R'y chancery did not abrogate the chan- Co. V. Mayor, etc., of Baltimore, 71 eery jurisdiction. Md. 239, 17 Atl. 933, it was held §280, (1) See Black v. Smith, 13 that a statute allowing discovery at W. Va. 780. law where it might be allowed in § 281 EQUITY JURISPRUDENCE. ' 526 tention to abrogate such jurisdiction, then the former jurisdiction of equity is thereby ended. ^ ^ The following examples will illustrate the effect of such enactments : ^ A statute authorizing common-law courts to render a judg- ment abating a private nuisance complained of in an action brought to recover damages therefor was held to have abrogated the equitable jurisdiction to entertain a suit for the same relief, although the jurisdiction to restrain a pri- vate nuisance remained unaltered. 2 c A statute permitting an action at law to recover compensation for work and labor or other services rendered to a trust estate on the employment of a trustee has taken away the jurisdiction of equity by suit to enforce such a demand as a lien upon the trust property.2 ^ It has been held that a court of equity has no jurisdiction to entertain a suit to recover the amount due on a lost non-negotiable note, since the holder has a complete remedy at law.* The statutes permitting the par- § 281, 1 See cases cited ante, in first note under § 279. § 281, 2 Remington v. Foster, 42 Wis. 608, 609. § 281, 3 Askew v. Myrick, 54 Ala. 30. § 281, 4 Messop v. Eadon, 16 Ves. 430, 433, 434; see cases cited, ante, under §§ 279, 280. § 281, (a) See Maclaury v. Hart, it was held that a surety cannot 121 N. Y. 636, 24 N. E. 1013, where maintain a suit in equity to compel the court said that "a court of the owner of a promissory note to equity is never at liberty to draw to bring suit on it and proceed to col- its general jurisdiction a question lect it, for an adequate remedy is remitted to a competent and suffi- provided by sections 1210, 1211, cient authority by express command Eev. Stats. 1881. of a statute, unless under some very § 281, (c) Compare, however, exceptional circumstances, which do Bushnell v. Eobeson, 62 Iowa, 540, 17 not exist here." A statute provided N. W. 888, where a similar statute for consolidation of church corpora- was held not to have imposed any tions upon consent of the supreme exception upon a general statutory court. It was held that equity could provision which read: "An injunc- not take jurisdiction. tion may be obtained in all cases § 281, (b) In Moore v. Mclntyre, where such relief would have been 110 Mich. 237, 68 N. W. 130, a granted in equity previous to the statutory remedy by certiorari in adoption of this code." matters of special assessments was §281, (d) It has been held that held to be exclusive. In Barnes v. statutory proceedings supplementary Sammons, 128 Ind. 596, 27 N. E. 747, to execution are exclusive of the 527 JURISDICTION ONCE EXISTING NOT LOST. § 281 ties to actions at law to be examined as witnesses are held, in several of the states, to abolish the auxiliary equitable ju- risdiction of discovery in aid of proceedings in courts of law. 5 Whenever a legal right is wholly created by statute, and a legal remedy for its violation is also given by the same statute, a court of equity has no authority to inter- fere with its reliefs, even though the statutory remedy is difficult, uncertain, and incomplete. ^ © Finally, where there is no statute, the equitable jurisdiction may become unused, obsolete, and practically abolished, since the courts of law have assumed the power to grant a simple, certain, and per- fectly efficient remedy. The practical abandonment of the equity jurisdiction over suits by the assignees of ordinary things in action is a striking illustration of the change which may thus be effected. As a general rule, a court of equity will not now entertain a suit brought by the assignee § 281, 5 Hall V. Joiner, 1 S. C. 186 ; Riopelle v. Doellner, 26 Mich. 102. See §§193, 194,209. § 281, 6 Janney v. Buel, 55 Ala. 408 ; Coleman v. Freeman, 3 Ga. 137. equitable remedy of a creditor's bill: which prescribes a mode of foreclos- Pacific Bank t. Eobinson, 57 Cal. ure, the prescribed remedy is usually 520, 40 Am. Rep. 120; contra, see exclusive, but such lien may be en- aiite, § 280, note. See on this ques- forced in chancery when necessary tion Pom. Eq. Rem., "Creditors' to do complete justice between the Bills." parties or when there is a special § 281, (e) See Dimmick v. Dela- cause for chancery interposition and ware, L. & W. R. R. Co., 180 Pa. St. the enforcement in equity of such 468, 36 Atl. 866. This paragraph of Hen is incidental and necessary to the text is cited to the same effect the enforcement of such other equi- in Sheffield City Co. v. Tradesmen's ties in the suit, but in such cases the Nat. Bank, 131 Ala. 185, 32 South. prerequisites of the statute for en- 598; citing Chandler v. Hanna, 73 forcement must be complied with in Ala. 392 (statutory remedy for en- so far as practicable in a court of forcement of mechanics' lien is ex- equity: Wynn v. Tallapoosa County elusive) ; Walker v. Dainwood, 80 Bank, 168 Ala. 469, 53 South. 228. Ala. 245; Corrugating Co. v. Thacher, A statute providing how boundary 87 Ala. 458, 465, 6 South. 366; Phil- pillars in mines should be deter- lips V. Ash's Heirs, 63 Ala. 414; mined, both as to necessity and Wimberly v. Mayberry, 94 Ala. 255, width, provided an exclusive rem- 14 L. R. A. 305, 10 South. 157. edy: Curran v. Delano, 235 Pa. 478, Where a lien is given by statute, 84 Atl. 452, § 281 EQUITY JURISPRUDENCE. 528 of a debt or of a chose in action which is a mere legal de- mand.'^ f The recent statutes of many states, as well as of England, requiring the assignee to sue at law in his own name confirm and establish this rule. § 281, 7 Ontario Bank v. Mumford, 2 Barb. Ch. 596, 615, per Walworth, C. : "As a general rule, this court will not entertain a suit brought by the assignee of a debt or of a chose in action which is a mere legal demand; but will leave him to his remedy at law by a suit in the name of the as- signor (citing Carter v. United Ins. Co., 1 Johns. Ch. 463; Hammond v. Messinger, 9 Sim. 327; Moseley v. Boush, 4 Rand. 392; Adair v. Win- chester, 7 Gill & J. 114; Smiley v. Bell, Mart. & Y. 378, 17 Am. Dec. 813). Where, however, special circumstances render it necessary for the assignee to come into a court of equity for relief, to prevent a failure of justice, he will be allowed to bring a suit here upon a mere legal demand"; citing as an example, Lenox v. Roberts, 2 Wheat. 373. § 281, (f ) The text is cited to tbis 101 Atl. 870 (courts of equity not effect in Close v. Independent Gravel ousted of this jurrsdiction, but will Co., 156 Mo. App. 411, 138 S. W. 81; not entertain suits unless adequate and quoted in Illinois Finance Co. v. relief cannot be given at law). Interstate Bural Credit Ass'n (Bel.), 529 ABSTRACT OF LEGISLATIVE PROVISIONS. § 282 CHAPTER III. THE JURISDICTION AS HELD BY THE COURTS OF THE SEVERAL STATES, AND BY THE COURTS OF THE UNITED STATES. SECTION I. ABSTRACT OF LEGISLATIVE PROVISIONS. ANALYSIS. § 2S'2. Source of jurisdiction, both legal and equitable, of tbe courts in tlie American states. § 283. Division of the states into four classes with respect to the amount of equity jurisdiction given to their courts. § 284. The first class of states. § 285. The second class of states. § 286. The third class of states. § 287. The fourth class of states. § 288. Summary of conclusions. § 282. Source of the Jurisdiction of the American Courts. In the preceding chapters I have described the general equitable jurisdiction in its condition of complete develop- ment, unabridged by any express statutory legislation, as it has been exercised by the English court of chancery. As a matter of fact, however, this unlimited jurisdiction is not now possessed by any American tribunal, state or national. In every commonwealth some important branch of it has been lopped off by statute. It becomes necessary, there- fore, that I should give, in addition to the foregoing gen- eral discussion, some account of the particular jurisdiction which now exists in the courts of each state and of the United States ; that I should show to what extent the powers of the English chancery have been conferred or withheld by the state and national constitutions and legislation. To this end I shall first exhibit the statutory basis and author- ity for the jurisdiction which are found in the laws of the 1—34: § 282 EQUITY JURISPRUDENCE. 530 United States and of all tlie individual states. This pre- liminary explanation is absolutely essential to a correct un- derstanding of the American equity jurisprudence, since the equitable powers held by all our courts, whether of the nation or of the states, are wholly derived from and measured by the provisions of statutes or of constitutions. The highest courts of original jurisdiction in each of the states are understood to derive their common-law powers, substantially co-extensive with those possessed by the superior law courts of England, merely from the fact of their being created as such tribunals, and without any ex- press grant of authority being essential. Although such a grant of authority or enumeration of powers has frequently been made either by the constitutions or by the statutes of different states, this was really unnecessary. These tri- bunals are deemed to possess by their very creation all the common-law powers, not incompatible with our institu- tions, which have not been expressly withheld or prohibited, in the same manner as the state legislatures are understood to hold by their very creation all the authority of the English Parliament not expressly withdrawn by the na- tional and state constitutions. It is not so with the equi- table jurisdiction of the American courts. For that there must be an authority either expressly conferred, or given by necesssary implication from the express terms, in some , provision of the constitution or of a statute. In other words, the American state courts do not derive their equi- table powers, as they do their common-law functions, as a part of the entire common-law system of jurisprudence which we have inherited from England, and which is assumed to exist even independently of legislation; their equitable jurisdiction is wholly the creature of statute, and is measured in each state by the extent and limitations of the statutory authority.^ § 282, 1 It hardly need be said that the constitution of the state is here indnded under the designation "statute"; for the constitution is only a hio-lier and more compulsory statute. Certain decisions may be found in 531 ABSTRACT OF LEGISLATIVE PROVISIONS. § 283 § 283. Amount of Equity Jurisdiction — Four Classes of States. — In some of the states this statutory delegation of power is so broad and comprehensive that the jurisdic- tion which it creates is substantially identical with that possessed by the English court of chancery, except so far as specific subjects, like administration, have been expressly given to different tribunals; but in others the delegation of power is so special in its nature and limited in its extent that a reference to the statutes themselves on the part of the courts as the source and measure of their jurisdiction is a matter of constant practice and of absolute necessity. A correct knowledge of these statutory provisions in the various states is of the highest importance from another point of view; without it the force and authority of deci- sions rendered in any particular state cannot be rightly ap- preciated by the bench and bar of other commonwealths.^ It will not be found necessary to examine in detail the stat- utes of each state separately. A comparatively few distinct types of legislation have been adopted and closely followed throughout the constitutions and statutes; and it is pos- sible to arrange all the states into a few classes, in each of which the equitable jurisdiction is substantially the same with respect to its statutory origin, nature, and extent, although some differences may exist in the judicial inter- pretation given to these legislative provisions. Such dif- ferences will be noticed in a subsequent section of this chapter. This classification is made without any reference to the external form and organization of the courts, and is a very few states holding that the equity jurisdiction of those states is commensurate with that possessed by the English ehaneeiy. In all these states, however, a constitutional provision not only created a court of equity, but in some sufficient words conferred upon it such a general jurisdiction. § 283, 1 As an illustration, the modern decisions in Massachusetts upon questions of general equity jurisprudence, able and learned as they are, would often be very misleading in other states, if the statutes upon which the jurisdiction of its courts rests were not accurately known. § 284 EQUITY JURISPRUDENCE. 532 based wholly upon the amount of equitable jurisdiction created and conferred by the legislation. § 284. 1. Class First. — The first class embraces those states in which the constitutions or statutes have in ex- press terms created and conferred an equity jurisdiction identical or co-extensive with that possessed by the English court of chancery, so far as is compatible with our forms of government, political institutions, and public policy.^ The jurisdiction thus taken as the criterion and measure is that held and exercised by the English court of chancery by virtue of its general powers as a court of justice; and it does not include that special authority or jurisdiction dele- gated to the chancellor individually, as a representative of the crown in its capacity of parens patrice. This latter authority, so far as it exists at all, is possessed only by the state legislatures. The following states compose this class : Michigan, New York, Vermont.^ § 284, 1 It should be noticed, however, that in all these states, notwith- standing the broad grant of* general power, certain particular subjects be- longing to the jurisdiction of the English chancery have been given to the exclusive cognizance of some other tribunal, and thus the general equitable jurisdiction has been abridged. The administration of decedents' estates is a very striking example, which has been intrusted to the probate courts. §284, 2 Michigan. — The constitution (art. VI.) establishes a supreme court with appellate jurisdiction only (§3), and circuit courts which "shall have original jurisdiction in all matters, civil and criminal, not ex- cepted in this constitution, and not prohibited by law." 2 Comp. Laws 1871, chap. 176, § 1.* "The several circuit courts of this state shall be courts of chancery within and for their respective counties"; and Comp. Laws 1871, § 21 : * "The powers and jurisdiction of the circuit courts in chanceiy in and for their respective counties shall be co-extensive with the powers and jurisdiction of the court of chancery in England, with the ex- ceptions, additions, and limitations created and imposed by the constitution and laws of this state." These provisions were also found in the Revised Statutes of 1846 (chap. 90), which abolished the former separate court of chancery. The latter of the two sections above quoted (viz., § 21) was also §284, (*) Michigan. — Howell's §284, (b) Michigan.— RoweWa Stats. 1882, § 6592. Stats., § 6611. 533 ABSTRACT OF LEGISLATIVE PEOVISIONS. § 285 §285. 2. Class Second. — The second class embraces those states in which the constitutions, not in express terms, but by necessary implication, create and confer a general equity jurisdiction substantially the same as that possessed by the English court of chancery, except so far as modified or limited by other portions of the state legis- lation. In this type of legislative action, no attempt is made by any clause to particularly define the extent of the jurisdiction by comparing it with that held by the Eng- lish chancery; the language employed is always general; it declares that certain courts ''have power to decide all cases in equity" ; or that they ''have jurisdiction in equity," or that they shall exercise their powers "according to the course of equity"; and it thereby plainly implies that the equity powers and jurisdiction thus recognized and con- ferred are substantially those possessed by the English found in the Revised Statutes of 1838 (p. 365, § 23), and applied to the then existing separate court of chancery. New York. — The constitutions of 1777 and 1822 established a separate court of chancery, and a supreme court with general original jurisdiction in law. The constitution of 1846, in its original form, and as amended in 1869, provides (art. VI., § 6), that "the supreme court shall have general jurisdiction in law and equity"; and by article XIV., sections 5 and 6, that all the powers of the former court of chancery are transferred to the supreme court. The Revised Statutes, which went into operation in 1830, while the court of chancery was in existence, enact (5th ed., vol. 3, pt. III., chap. 1, tit. 2, art. 2, § 42, p. 264) : "The powers and jurisdiction of the court of chancery are co-extensive with the powers and jurisdiction of the court of chancery in England, with the exceptions, additions, and limita- tions created and imposed by the constitution and laws of this state." This continues to be the measure of the equitable jurisdiction of the courts of New York, although both the legal and the equitable powers are now administered together by the same court and in the same proceeding. Vermont.— Hhe General Statutes of 1862-70 (tit. XV., chap. 20, § 4)c confer the equity jurisdiction upon the judges of the supreme court vir- tually acting as chancellors; and (Gen. Stats., §2)* define the extent of that jurisdiction in language identical with that found in the statutes of Michigan and of New York, quoted above. § 284, (c) And the Eevised Laws of § 284, (d) Rev. Laws, 695. 1880, § 698. § 285 EQUITY JURISPRUDENCE. 534 court of chancery. In many of these states the general clause is added by way of limitation, that equity powers shall not exist where there is "a plain, adequate, and com- plete remedy at law." The effect given to this provision will be explained in the following section. It should be added, however, in this connection, that in many of the states the ordinary jurisdiction of equity thus conferred in such general terms is greatly abridged, restricted, or modified, with respect to some of its branches or heads, by other statutes, especially by those defining and regu- lating the powers of the various subordinate courts.^ In this class, which is the most numerous of all, are included the following states: Alabama, California, Connecticut, Delaware, Florida, Georgia, Illinois, Iowa, Kentucky, Maryland, Mississippi, Nebraska, Nevada, New Jersey, North Carolina, Oregon, Ehode Island, Tennessee, Virginia, West Virginia, Wisconsin, and the United States.^ § 285, 1 As illustrations, in several of the states the original jurisdic- tion over trusts is limited by statutes abolishing or restricting express trusts, and the like; and in nearly all, if not all, of them the jurisdiction over the administration of decedents' estates is greatly restricted, or per- haps taken away, by statutes giving exclusive power in such matters to courts of probate. § 285, 2 I omit, in this note, all reference to courts of appellate juris- diction, as unnecessary. It is enough to say that in every state, and in the United States, there is a tribunal with such a jurisdiction both in law and in equity. United States. — Rev. Stats., § 629 : "Circuit courts have jurisdiction in all suits of a civil nature, at common law and in equity, where the matter ia dispute exceeds the sum or value of five hundred dollars," in the cases provided for by the constitution, and in a number of specified cases aris- ing under statutes of Congress. § 723 : "Suits in equity shall not be sus- tained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may be had at law." These provi- sions formed sections "11 and 16 of chapter 20 of the Laws of 1789, com- monly known as the "Judiciary Act." Alabama. — Rev. Code 1867, § 698 : * "Ordinary jurisdiction. The powers and jurisdiction of the courts of chancery extend, — 1. To all civil causes in which a plain and adequate remedy is not provided in the other judicial § 285, (a) Alabama.— Code 1886, § 720. 535 ABSTRACT OF LEGISLATIVE PROVISIONS. § 286 § 286. 3. Class Third. — The third class embraces those states in which the constitutions and statutes do not confer tribunals; 2. To all cases founded on a gambling consideration, so far as to sustain a bill of discovery and grant relief; 3. To subject an equitable title or claim to real estate to the payment of debts; 4. To such other cases as may be provided by law." Rev. Code 1867, § 699 :*» Extraordi- nary jurisdiction. Chancellors may exercise the extraordinary jurisdiction granted to such officer by the common law in cases of necessity when ade- quate provision has not been made for its exercise by some other officer or in other courts, and with the exceptions, limitations, and additions imposed by the laws of this state." The whole state is separated into three "chancery divisions," and a chancellor is appointed in each : Rev. Code 1867, §§ 695, 697.« California. — Const. 1879, art. VI., § 4 : "The supreme court shall have appellate jurisdiction in all cases in equity, except such as arise in jus- tices' courts," and in all cases at law. § 5 : "The superior courts shall have original jurisdiction in all cases in equity," and in eases at law. Code Civ. Proc, § 57 : "The jurisdiction of the superior courts extends, — 1. To all civil actions for relief formerly given in courts of equity," and also to other civil actions. Connecticut. — Gen. Stats. 1875, p. 40, § 2 : "The superior court shall have jurisdiction of all suits in equity which are not within the sole juris- diction of other courts." P. 413, § 2 : Jurisdiction, where the amount involved does not exceed five hundred dollars, is given to the court of com- mon pleas, and for cases exceeding that amount, to the superior court. § 5 : "Courts having jurisdiction in suits in equity shall proceed therein according to the rules and practice of equity, and take cognizance only of matters in which adequate relief cannot be had in the ordinary course of law." Note, however, that this clause, so far as it speaks about the "proceeding in suits in equity according to the practice of equity," has l)een modified by more recent legislation, which has adopted substantially the principles and methods of the reformed procedure (Practice Act of 1879), and which is mentioned in a subsequent paragraph. Delaware. — The constitution (art. VI., § 3) establishes a court of chan- cery. § 5 : "The chancellor shall hold the court of chancery. This court shall have all the jurisdiction and powers vested by the laws of this state in the court of chancery." § 13 : "Until the general assembly shall other- wise provide, the chancellor shall exercise all the powers which any law of this state vests in the chancellor, besides the general powers of the court of chancery." Rev. Stats. 1852, p. 320, chap. 95, § 1 : "The court of chan- §285, (t») Code 1886, § 721. now four in number. CJode 188S, §285, (c) These "divisions" are §713. § 286 EQUITY JUEISPRUDENCB. 536 a general equity jurisdiction by any single comprehensive provision, or single grant of power, but enumerate and eery shall have full power to hear and decree all matters and causes in equity; . . . provided, that the chancellor shall not have power to deter- mine any matter wherein sufficient remedy may be had, by common law or statute, before any other court or jurisdiction of this state." Jurisdiction in several particular cases, or for particular reliefs, is also given by other statutory provisions. Florida.— Bush's Digest of Statutes, 1872, chap. 92, § 22 :* "Circuit courts shall have original jurisdiction in all cases of equity," and also of law. The constitution (art. VI., § 8) contains exactly the same provision. There is no further definition or description of the equitable jurisdiction. Georgia. — Const. 1868, art. V., sec. 2, § 2 : The supreme court has only an appellate jurisdiction. Sec. 3, § 2 : The superior courts have "exclusive original jurisdiction in equity cases." Code 1873, p. 45, § 218 :® The supreme court has an appellate jurisdiction only. Code 1873, p. 50, § 246 :' The superior courts have original jurisdiction and authority in all civil causes, — "2. To exercise the powers of a court of equity." Illinois. — Const., art. VI., §12: "Circuit courts have original jurisdic- tion in all causes in law and equity." Gross's 111. Stats. 1871-74, vol. 2, p. 31, chap. 21, § 1:^ The circuit courts and the superior courts of Cook county (i. e., of Chicago), "in all causes of which they may have jurisdic- tion as courts of chancery, shall have power to proceed therein according to the mode herein provided, and when no provision is made by this act, according to the general usage and practice of courts of equity." Iowa. — Const., art. 5, § 6 ; "The district court shall be a court of law and equity, which shall be distinct and separate jurisdictions." Code of 1873, § 161 : "The district courts shall have and exercise general original jurisdiction, both civil and criminal, when not otherwise provided." § 162 : "The circuit court shall have and exercise general original jurisdiction con- current with the district courts in all civil actions and special proceedings." § 2507 : All forms of action are abolished ; but two kinds of proceeding by the "civil action" are allowed ; namely, the "ordinary" and the "equitable." § 2508 : "Plaintiff may prosecute his action by equitable proceedings in all cases where courts of equity, before the adoption of this code, had juris- diction, and must so proceed in all cases where such jurisdiction was exclusive." Kentucky. — Stanton's Rev. Stats. 1867, vol. 1, p. 310:** "The circuit court has original jurisdiction of all matters, both in law and equity, within § 285, (d) Florida.— MeJjeWan's Di- § 285, (s) 7Z?Mi^ts.— Hurd's El. gest, 1881, chap. 52, § 22. Rev. Stats. 1889, p. 212, chap. 22, § 1. §285, (e) Georgia.— Gode 1882, §285, (h) Kentucky.— Gen. Stats. p. 55. 1887, p. 353. § 285, (f) Code 1882, p. 62. 537 ABSTRACT OF LEGISLATIVE PEOVISIONS. § 286 specify the particular and partial heads or divisions of equity jurisprudence over which the jurisdiction of the its county, of which jurisdiction is not by law exclusively delegated to some other tribunal." Pp. 343, 3G0 : A special court is establislied in cer- tain districts for the hearing and decision of all equitable actions which would otherwise be heard by the circuit courts of those districts. Maryland. — Code 1860, p. 82, § 56 :* "The judges of the several judicial circuits, and the judge of the circuit court for Baltimore city, shall each, in his respective circuit, have and exercise all the power, authority, and jurisdiction which the court of chancery formerly held and exercised, ex- cept in so far as the same may be modified by this code." These courts also have original jurisdiction in cases at law. Mississippi. — Const. 1868, art. VI., § 4 : The supreme court has only an appellate jurisdiction. § 16 : Chancery courts shall be established in each county. Rev. Code 1871, p. 191, chap. 9, art. 3, § 974 i "The chancery courts shall have full jurisdiction in all matters in equity, and of divorce and alimony; in all matters testamentary and of admmistration, in minors' business, and allotment of dower; and in cases of idiocy, lunacy, and per- sons non' compos mentis, as well as of such other matters and cases as may be provided for by law." Nebraska. — Const., art. XIV., %Z:^ "The supreme court and the district courts shall have both chancery and common-law jurisdiction." * Nevada. — Const., art. VI., § 6 : "The district courts in the several judi- cial districts shall have original jurisdiction in all cases in equity," and also in cases at law. Comp. Laws 1873, § 925 ; Gen. Stats. 1885, § 2439 : A provision exactly the same as the last preceding. Comp. Laws 1873, § 1064:"* "There shall be in this state but one form of civil action," etc. This is section 1 of the Code of Civil Practice, passed March 8, 1869. New Jersey. — The constitution (art. VI., § 1) establishes a court of errors and appeals of the last resort in all cases; a court of chancery; a supreme court; and circuit courts. § 4: The court of chancery shall con- sist of a chancellor. § 5 : The supreme court and circuit courts have juris- diction at law only. The Digest of Laws by Nixon (1709-1868) contains no statutory provision defining the extent of the chancery jurisdiction. A late statute has created the office of vice-chancellor. §285, (1) Maryland.— 'Pu.h. Gen. 19, §24: "The district courts shall Laws 1888, art. XVI, § 70. have and exercise general, original, §285, (J) Mississippi. — Rev. Code and appellate jurisdiction in all mat- 1880, § 1829, ters both civil and criminal, except § 285, (k) Nebraska. — Const. 1875, where otherwise provided." art. VI, § 9. § 285, (m) Nevada.— Gen. Stats. § 285, (1) Ck>mp. Laws 1889, chap. 1885, § 3023. § 286 EQUITY JURISPRUDENCE. 538 courts shall extend, with various restrictions and limita- tions. The equitable jurisdiction thus created in any state North, Carolina. — The constitution of 1868 (art. IV., § 1) abolishes the distinction between actions at law and suits in equity; and (§4) creates a supreme court and superior courts having jui'isdiction in law and in equity. A code of procedure identical with that originally adopted in New York has been enacted. Rev. Code 1854, chap. 32, §1: "Each superior court of law shall also be and act as a court of equity in the same county, and possess all the powers and authorities within the same that the court of chancery which was formerly held within this state under the colonial government used and exercised, and that are properly and rightfully inci- dent to such a court." Oregon. — The constitution (art. VII., § 1) creates a supreme court and circuit courts, etc., "having general jurisdiction, to be defined, limited, and regulated by law." § 9 : "All judicial power, authority, and jurisdiction not vested by this constitution, or by laws consistent therewith, exclusively in some other court shall belong to the circuit courts." The Code of Civil Procedure (§1), General Laws of Oregon, 1872 (p. 105), abolishes all forms of action at law, but not the distinction between actions at law and suits in equity. Code Civ. Proc, § 376; Gen. Laws, p. 189: "The enforce- ment or protection of a private right, or the prevention of or redress for an injury thereto, shall be obtained by a suit in equity, in all cases where there is not a plain, adequate, and complete remedy at law ; and may be obtained thereby in all cases where courts of equity have been used to exercise concurrent jurisdiction with courts of law, unless otherwise spe- cially provided in this chapter." Rhode Island. — The constitution (art. IV., § 1) creates a supreme court. § 2: "The court shall have such jurisdiction as may from time to time be granted by law. Chancery powers may be conferred on- the supreme court, but on no other court to any greater extent than is now provided by law." Gen. Stats. 1872, p. 404, chap. 181, § 4 :»» "The supreme court shall have exclusive cognizance and jurisdiction of all suits and proceedings whatso- ever in equity, with full power to make and enforce all orders and decrees therein, and to issue all process therefor, according to the course of equity." Tennessee.— The constitution (art. VI., § 1) establishes a supreme court, and "such circuit, chancery and other inferior courts as the legislature shall from time to time establish." § 8 : "The jurisdiction of the chancery . . . courts shall be as now established by law until changed by the legis- lature." Comp. Stats. 1872, § 4279 :« "The chancery courts shall continue to have all the powers, privileges, and jurisdiction properly and rightfully §285, (n) Ehode Island. — Pub. §285, (o) Tennessee. — Code 1884, Stats. 1882, p. 506, chap. 192, § 8. § 5022. 539 ABSTRACT OF LEGISLATIVE PROVISIONS. § 286 is not co-extensive with that possessed by the English court of chancery, but is partial, and to a considerable extent fragmentary, since the more general clauses of the statutes have naturally been confined or restricted in their judicial interpretation by the enumeration of special powers con- tained in other clauses. In all these states the legislation on the subject has been progressive. At an early day the incident to a court of equity by existing laws." Comp. Stats. 1872, § 4280 :P "They have exclusive original jurisdiction in all cases of an equitable nature, where the debt or demand exceeds fifty dollars, unless otherwise provided by this code." Other provisions give a power to gi-aut equitable relief in certain specified cases, all of which, however, are em- braced within the foregoing general authority. Virginia. — Code 1860, chap. 158, § 5, p. 667 :*i "The circuit court of each county shall have jurisdiction in all cases in chancery and all actions at law." Certain local courts are also established in particular districts hav- ing the same jurisdiction. The high court of errors and appeals is entirely an appellate tribunal. No change in this jurisdiction seems to be made by subsequent statutes. West Virginia. — Const., art. VI., § 6 :' "Circuit Courts shall have origi- nal and general jurisdiction of all matters at law and of all cases in equity." The Code of 1868 (chap. 112, § 1),* contains a provision identi- cal with the foregoing. Wisconsin. — Const., art. VII., § 2 : "The judicial power of the state, both as to matters of law and equity, shall be vested in a supreme court, circuit courts," etc. § 8: Circuit courts have original jurisdiction "in all matters civil and criminal not excepted by this constitution or prohibited by law." Gen. Stats. 1871, vol. 2, chap. 116, § 5, p. 1303 : Circuit courts "have origi- nal jurisdiction in all cases, both of law and equity"; and (§9) "shall have power to issue writs of injunction, . . . and all other writs, process, . . . according to the common usage of courts of record of common law and of equity jurisdiction."* Gen. Stats. 1871, § 22, p. 1306 : "Circuit courts shall have original jurisdiction of all civil actions." The distinc- tion between actions at law and suits in equity is abolished, and one "civil action" is established for all private rights and remedies. §285, (P) Code 1884, § 502.S. §285, (t) Wisconsiyi.— Stats. 1889, §285, (a) Virginia.— Code 1887, §2420: "The circuit courts have the § 3058. ■ gemeral jurisdiction prescribed by the § 285, (') West Virginia. — Art. constitution. . . . They have the power VIII, § 12. to hear and determine, within their §285, (s) And the Code of 1884, respective circuits, all civil actions ajid chap. 112, § 2. pruceedings." § 286 EQUITY JUEISPRUDENCE. 540 equity jurisdiction was either wholty withdrawn from the courts, or else existed within extremely narrow bounds, and it has from time to time been enlarged by the legislalare. For this reason the judicial decisions of all these states should be carefully examined and compared with the stat- utes in force at the time when they were rendered; other- wise their true scope and effect may be misapprehended. The following states are embraced in this class: Maine, Massachusetts, New Hampshire, Pennsylvania.^ § 286, 1 Maine.— Jiev. Stats. 1871, chap. 77, § 2, p. 581 : The supreme judicial court has jurisdiction in law. § 5, p. 582 : "It has jurisdiction as a court of equity in the following cases: 1. For the redemption of estates mortgaged; 2. For relief from forfeiture of penalties to the state, and from forfeitures in civil contracts and obligations, and in recognizances in criminal cases; 3. To compel the specific performance of written con- tracts, and to cancel and compel the discharge of written contracts, whether under seal or othenvise, when a full performance or payment has been made to the contracting party ; 4. For relief in cases of fraud, trusts, acci- dent, or mistake; 5. In cases of nuisance or waste; 6. In cases of partner- ship, and between the part owners of vessels and of other real and per- sonal property, for adjustment of their interests in the pi'operty and accounts respecting it; 7, To detennlne the construction of wills, and whether an executor not expressly appointed a trustee becomes such from the provisions of a will; and in cases of doubt, the mode of executing a trust, and the expediency of making changes and investments of property held in trust; 8. In cases where the power is specially given by statute; and for discovery in the cases before named, according to the course of chancery practice; 9. When counties, cities, towns, or school districts, for a purpose not authorized by law, vote to pledge their credit, or to raise money by taxation, or to pay money from their treasury; or for such pur- pose any of their officers or agents attempt to i:>ay out such money, the court shall have equity jurisdiction on application of not less than ten taxable inhabitants therein." § 7 : "Writs of injunction may be issued in cases of equity jurisdiction, and when specially authorized by statute." Laws 1873, chap. 140 : "The supreme judicial court shall have jurisdic- tion in equity between partners or part owners, to adjust all matters of partnership between such part owners, compel contribution, and make final decrees." Laws 1874, chap. 175, p. 126: Chapter 77 of the Revised Statutes (§ 5), quoted above, is amended by adding the following subdivision : "10. And shall have fully equity jurisdiction, according to the usage and practice of 541 ABSTRACT OF LEGISLATIVE PROVISIONS. § 287 § 287. 4. Class Fourth. — The fourth class embraces those states in which, from an abandonment of the ancient modes of procedure inherited from the law of England, the constitutions and statutes, in their grants of jurisdiction to courts of equity, in all other cases, where there is not a plain, adctjuate, and complete remedy at law." Laws of 1876 (chap. 101, p. 74) is amended by Laws of 1877 (chap. 158, p. 119). The same chapter 77 of the Revised Statutes (§ 5) is amended again, by adding the following subdivision : "10. In suits for the redelivery of goods or chattels taken or detained from the owner, and secreted or with- held, so that the same cannot be replevied; and in bills in equity by a creditor or creditors to reach and apply in payment of a debt any property, right, title, or interest, legal or equitable, of a debtor or debtors residing or found within this state, which cannot be come at to be attached or taken on execution in a suit at law against such debtor or debtors, and which is not exempt by law from such attachment and seizure, and any property or interest conveyed in fraud of creditors." Laws 1877, chap. 197, p. 143 : The same chapter 77 of the Revised Statutes (§5) is amended by adding to the sixth subdivision the following words : "And in cases arising out of the law providing for the application of receipts and expenditures on railroads by trustees in possession under mortgage." In addition to the foregoing grants of power, various provisions of the Revised Statutes also give an equitable remedy, or permit the court to interpose as a court of equity, in certain other special cases, as follows: P. 139, § 48, suits for the redemption of lands sold for non-payment of taxes; p. 245, § 29, suits by town otScers to restrain county officials from improperly constructing a highway through the town ; p. 331, § 10, suits between general and special partners; p. 336, § 5, suits by owners of cargo against ship-owners for discovery and payment, in cases of embezzle- ment, loss, or destruction of goods by master or seamen ; p. 396, § 19, suits by a creditor or stockholder to wind up an expired corporation; p. 398, § 31, suits to compel contribution by stockholders, and to enforce their lia- bility for the corporation debts ; p. 399, § § 34, 35, suits by judgment cred- itors against a corporation when its property cannot be reached by attach- ment or execution, or when it has made illegal dividends; pp. 410. 411, §§40, 46, suits by creditors against directors and stockholdei's of a bnnk for unlawful acts ; p. 411, § 47, suits by a stockholder who has paid debts of a bank, against the directors and other stockholders for a contribution; p. 413, § 57, suits by ofiicial bank examiner to enjoin bank which has made over-issues, or is unsound ; p. 417, § 74, suits by receivers of banks to recover unpaid assessments from stockholders, when necessary to meet demands against the bank; p. 422, §§ 99, 100, 101, suits by the trustees or § 287 EQUITY JUiRISPRUDENCB. 542 tlie courts, make no distinction between, nor even any men- tion of, either the "law" or "equity." All these states, ex- cepting Louisiana and Texas, have adopted the reformed American system of procedure. Their constitutions and by any depositor of an insolvent savings bank to compel a ratable distribu- tion of its property; p. 450, § 10, suit by the person entitled against a railroad to compel payment of land damages awarded, when land has been taken, and to enjoin the railroad until they are paid; p. 458, § 53, suits by railroads to redeem from mortgages ; p. 4G2, § 70, in all controversies relating to trustees, mortgages, and the foreclosure or redemption of mort- gages of railroads ; p. 464, § 77, suits to enforce awards made by railroad commissioners concerning controversies between connecting raili'oad lines and companies; p. 492, § 9, suits by a married woman to control and in- vest for her own use the damages awarded to her when her own separate property has been taken for public uses; p. 517, § 63, all controversies be- tween co-executors or co-administrators, in the same manner as those be- tween copartners; p. 541, §§ 10, 11, suits to enforce and regulate the execution of trusts; p. 565, § 14, suits to compel contribution among heirs, devisees, and legatees, whenever they are liable to contribute ; p. 705, § 13, suits for redemption from mortgages; p. 787, § 6, suits to compel the specific performance of land contracts, after the vendor has died, against his heirs, devisees, administrators, or executors. Massachusetts. — The following provisions, except where the date of their enactment is specially stated, are also found, with some difference of lan- guage, in the Revised Statutes of 1830 : Gen. Stats. 1873, p. 558, chap. 113, § 2.* "The court may hear and determine in equity all cases hereinafter mentioned, when the parties have not a plain, adequate, and complete remedy at the common law, namely: 1. Suits for the redemption of mort- gages, or to foreclose the same : 2. Suits and proceedings for the enforcing and regulating the execution of trusts, whether the trusts relate to real or personal estate ; 3. Suits for the specific performance of written contracts, by and against either party to the contract, and his heirs, devisees, execu- tors, administrators, and assigns; 4. Suits to compel the redelivery of goods and chattels taken or detained from the owner, and secreted or with- held so that the same cannot be replevied; 5. Suits for contribution by or between legatees, devisees, or heirs, who are liable for the debts of a de- ceased testator or intestate, and by or between any other persons respec- tively liable for the same debt or demand, when there is more than one person liable at the same time for the same contribution; 6. Other cases where there are more than two parties having distinct rights or interests which cannot be justly or definitely decided or adjusted in one action at §286, (a) Massachusetts.— Gen. Stats. 1882, chap. 151, §2. 543 ABSTRACT OF LEGISLATIVE PROVISIONS. § 287 statutes confer upon the courts complete power and juris- diction to hear and determine all civil causes, or to grant all civil remedies; and they thus implicitly include a full jurisdiction in cases and over remedies of an equitable char- the common law; 7. Suits between joint tenants, tenants in common, and co-partners and their legal representatives, with authority to appoint re- ceivers of rents and profits, and apportion and distribute the same to the discharge of encumbrances and liens on the estates, or among co-tenants; 8. Suits between joint trustees, co-administrators, and co-executors, and their legal representatives; 9. Suits concerning waste and nuisance, whether relating to real or personal estate; 10. Suits upon accounts, when the nature of the account is such that it cannot be conveniently and prop- erly adjusted and settled in an action at law; 11. Bills by creditors to reach and apply in pajonent of a debt any property, right, title, or inter- est, legal or equitable, of a debtor, within this state, which cannot be come at to be attached or taken on execution in a suit at law against such debtor (Laws 1851, chap. 206; Laws 1858, chap. 34) ; 12. Cases of fraud and conveyance or transfer of real estate in the nature of mortgage (Laws 1855, chap. 194) ; 13. Cases of accident or mistake; 14. Suits or bills for discovery, when a discovery may be lawfully required according to the course of proceedings in equity; 15. And shall have full equity jurisdiction according to the usage and practice of courts of equity in all other cases where there is not a plain, adequate, and complete remedy at law (Laws 1857, chap. 214)." By the laws of 1875 (chap. 235), »» jurisdiction is given to entertain creditors' suits by judgment creditors to reach property of the debtors fraudulently transferred to or held by others. Other statutes confer special powers and remedies in particular cases, most of which, however, are covered by some one of the foregoing provisions. Laws 1877, chap. 178, p. 558, § 1 :® "The supreme judicial court shall have jurisdic- tion in equity of all cases and matters of equity cognizable under the gen- eral principles of equity jurisprudence; and in respect of all such cases and matters shall be a court of general equity jurisdiction." Laws 1877, chap. 178, § 2 : "The last paragi-aph of section 2 of chapter 113 of the General Statutes, beginning with the words 'And shall have,' is hereby re- pealed; but this repeal shall not affect any cause or proceeding now pend- ing." This statute of 1877, it will be seen, confers a much broader and more unlimited jurisdiction than had been given by any previous legisla- tive grant.* § 286, (b) Massacliusetts. — Gen. Laws of 1883, similar jurisdiction in Stats. 1882, cliap. 151, § 3. equity is conferred upon the superior §286, (c) Laws 1882, chap. 151, courts. Section 14 of the act pCTmits § 4. equitable defenses in actions at law. §286, (d) By chapter 223 of the § 287 EQUITY JUKISPRUDENCE. 544 acter, as well as those of a legal nature. From consider- ations of convenience, and because the same principle of administration is now common to the whole group, I have added to this class all those other states which have adopted New Hampshire.— Gen. Stats. 1867, p. 388, chap. 190, § 1 : "The su- preme court shall have the powers of a court of equity in cases cognizal)le in such courts, and may hear and determine, according to the course of equity, in cases of charitable uses, trusts, fraud, accident, or mistake; of the affairs of co-pai'tners, joint tenants or owners, or tenants in common ; of the redemption and foreclosure of mortgages; of the assignment of dower; of contribution; of waste and nuisance; of specific performance of contracts; of discovery, when discovery may be had according to the course of proceeding in equity ; and in all other cases where there is not a plain, adequate, and complete remedy at law, and such remedy may be had by proceedings according to the course of equity; may grant writs of injunc- tion whenever the same is necessary to prevent fraud or injustice." § 2 : "When goods or chattels are unlawfully withheld from the owner, pro- ceedings in equity may be had for a discovery, for a restoration of the property, and for such other relief as the nature of the case and justice may require." Section 3 provides for a creditor's bill by a judgment cred- itor whose execution has been returned unsatisfied. Laws 1874, chap. 97, p. 340: This statute reorganizes the entire judicial system, changes the courts, and transfers all jurisdiction to the new courts; but makes no( alteration in the existing jurisdiction itself. Pennsylvania. — Prior to the legislation hereinafter mentioned, the courts of Pennsylvania possessed no equity jurisdiction whatever. To prevent the absolute failure of justice, which would otherwise have followed, they had invented a curious system, by means of which some equitable principles and rules were enforced, and some equitable reliefs were given, through the ordinary common-law foiTQS of action. For example, in the action of ejectment, an equitable right or title was permitted to be set up by the defendant, and then after the verdict of the jury the equities of the parties were worked out by an alternative or conditional judgment. This whole system was, of course, cumbrous, and could only be applied within narrow limits. The change made by the legislature has been gradual, and the final steps were quite recent, of which the following is a summary: Const, (as amended in 1838), art. V., § 6: "The supreme court and the several courts of common pleas shall, besides the powers heretofore usually exercised by them, have the power of a court of chancery, so far as relates to the per- petuation of testimony, the obtaining of evidence from places not within the state, and the eases of the persons and estates of those who are non compos mentis; and the legislature shall vest in the said courts such other 545 ABSTRACT OF LEGISLATIVE PROVISIONS. § 287 the reformed procedure, but which have already been men- tioned either in the first or the second of the foregoing classes. As a matter of fact, in all the commonwealths where the reformed procedure prevails, there is substan- powers to grant relief in equity as shall be found necessary ; and may from time to time enlarge or diminish those powers, or vest them in such other courts as they shall judge proper for the due administration of justice." Const. 1873, art. V., § 1 : A supreme court and courts of common pleas are established. § 3 : The jurisdiction of the supreme court is appellate, except that "the judges shall have original jurisdiction in cases of injunc- tion where a corporation is defendant." § 20 : "The several courts of common pleas, besides the powers herein conferred, shall have and exer- cise, within their respective districts, subject to such changes as may be made by law, such chancery powers as are now vested by law in the several courts of common pleas of this commonwealth, or as may hereafter be conferred on them by law." Brightly's edition of Purdon's Digest (1700-1872), vol. 1, p. 589 (Act of June 16, 1836, § 1) :® "The supreme court and the several coui-ts of common pleas shall have the jurisdiction and power of a court of chancery, so far as relates to, — 1. The perpetuation of testimony; 2. The obtaining of evidence from places not within the state; 3. The case of the persons and estates of those who are non compos mentis; 4. The control, removal, and discharge of trustees, and the appointment of trustees and the settle- ment of their accounts; 5. The supervision and control of all corporations other than those of a municipal character, and unincorporated societies and associations and partnerships; 6. The care of trust moneys and property, and other moneys and property made liable to the control of the said courts ; and in such other cases as the said courts have heretofore possessed such jurisdiction and powers under the constitution and laws of this com- monwealth." § 2 : "The supreme court when sitting in bank in the city of Philadelphia (extended by act of July 26, 1842, to the judges thereof sitting at nisi prius in said city), and the court of common pleas for the said city and county shall, besides the powers and jurisdiction aforesaid, have the powers and jurisdiction of courts of chancery so far as relates to,— 1. The supervision and control of partnerships and corporations other than municipal; 2. The care of trust moneys and property and other moneys and property made liable to the control of the said courts; 3. The discovery of facts made material to the just detennination of issues and other questions arising or depending in said courts; 4. The determination of rights to property or money claimed by two or more persons, in the hands or possession of a person claiming no right or property therein ; §286, (e) Ed. of 1883, vol. i, p. 689. 1—35 § 287 EQUITY JURISPRUDENCE. 546 tially the same amount of equitable jurisdiction, and there are also the same limitations upon the extent and exercise of that jurisdiction growing out of the radical change in the modes of administering it effected by the reformatory 6. The prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals; 6. The affording specific relief when a recovery iu damages would be an inadequate remedy." Act of June 13, 1840 : "The equity jurisdiction of the supreme court within the city of Philadelphia and of the court of common pleas for said city shall be extended to all cases arising in said city over which courts of chancery entertain jurisdic- tion on the grounds of fraud, mistake, accident, or account." By the act of April 11, 1845, it was declared that this provision "should be construed to include'"all cases of fraud, actual or constructive." Act of October 13, 1840: "The supreme court, district courts, and courts of common pleas within this commonwealth shall have all the powers and jurisdiction of courts of chancery in settling partnership accounts and such other accounts and claims as by the common law and usages of this commonwealth have hitherto been settled by the action of 'account render,' and plaintiff can sue either in equity or at law." Act of April 10, 1848: "The supreme court and court of common pleas in Philadelphia shall have the jurisdiction of courts of chancery in all suits for the discovery of facts." Act of April 25, 1850: The powers conferred (by act of June 16, 1836, above), concerning the perpetuation of testimony, are extended to all cases of perjjetuating lost records. Act of AprU 8, 1852 : The jurisdiction con- ferred by the foregoing acts upon the supreme court in and for the city of Philadelphia is extended throughout the entire state; "provided that said court shall not have original jurisdiction by virtue of this act to supervise any partnerships or unincorporated associations or societies." Act of February 14, 1857: The jurisdiction vested by the foregoing acts in the district court or the court of common pleas in and for Philadelphia is extended to all the courts of common pleas, throughout the state. In addition to the foregoing somewhat general grants of authority, other statutes have from time to time given jurisdiction or power to grant spe- -cial relief under various particular circumstances, the most important of which are the following: Act of June 16, 1836: Bills for discovery in favor of judgment creditors are allowed. Act of March 17, 1845 : The supreme court for the eastern district of the state, and the court of common pleas for Philadelphia, have jurisdiction of all cases of dower and of partition within Philadelphia; and by act of April 15, 1858, the same courts have a like jurisdiction in cases of disputed boundary within the same city. Act of April 25, 1850: Suits in equity for au accounting between eo- 547 ABSTRACT OF LEGISLATIVE PKOVISIONS. § 287 legislation. The fourth class is thus composed of the fol- lowing states: Arkansas, Indiana, Kansas, Louisiana, Minnesota, Missouri, Ohio, South Carolina, Texas, and those which have already been mentioned : California, Con- necticut, Iowa, Kentucky, Nebraska, Nevada, New York^ North Carolina, Oregon, Wisconsin. To these may be added several of the territories. ^ owners of mines or minerals are allowed. Act of April 11, 1862 : The supreme court has all the powers of chancery in all cases of mortgages i^ven by corporations. Statute of March 15, 1873, p. 301: The act of April 5, 1860, abridging the equity jurisdiction in Philadelphia, is re- pealed, and the equity jurisdiction of the district court in Philadelphia is restored as it was before said act. Statutes of 1876, May 5, p. 123: All courts of common pleas have all the powers of a court of chancery in all cases of or for the enforcing of mortgages on the property or franchises of any railroad, canal, or navigation corporation situated within the state. Statutes of 1876, May 8, p. 134: Equity jurisdiction in partition is en- larged so that any and every proper relief may be given by the decree of the court. §287, "i- Arkansas. — Const. 1868, art. VII., §1: A supreme court and circuit courts are created. § 4 : "The supreme court shall have general supervision and control over all inferior courts of law and equity." § 5 : "The inferior courts of the state as now constituted by law shall remain with the same jurisdiction as they now possess," subject to the power of the legislature to alter. Dig. of Stats, 1874, § 1182 :«• Circuit courts have original jurisdiction in all civil actions. Dig. 1874, § 1183 :^ "They shall have exclusive original jurisdiction in each county in which they may be held, except in the county of Pulaski, as courts of equity, in all eases where adequate relief cannot be had by the ordinary course of proceed- ings at law." Dig. 1874, § § 1208, 1209 ;* A separate chancery court is established in the county of Pulaski, which has jurisdiction of all equity cases arising in that county. Dig. 1874, p. 798, § 4450 :•* All fomis of ac- tion are abolished. Dig. 1874, § 4451 :® There shall be one form of action for the maintenance of all private rights and the granting of all private remedies, called the civil action. Dig. 1874, §4453:' The proceedings in civil actions may be either at law or in equity. Dig. 1874, § 4454 :« The civil action "mai/ be by equitable proceedings in all cases where courts of equity, before the adoption of this statute, had jurisdiction, and must be §287, (a) Arkansas — Big. of § 287, (d) Dig. 18S4, § 4914. Stats. 1884, §1357. §287, (e) Dig. 1884, §4915. §287, (b) Dig. 1884, §1358. §287, («) Dig. 1884, §4917. §287, (c) Dig. 1884, §§ 1380, 1381. §287, (s) Dig. 1884, §4918. § 288 EQUITY JURISPRUDENCE. 548 § 288. Conclusions. — Although it is apparent from the foregoing summary that there is a very general agreement with respect to the amount of equity jurisdiction conferred upon the courts by this fundamental legislation of the vari- in all cases where such jurisdiction was exclusive." This provision is substantially the same as the corresponding one in Iowa, Kentucky, and Oregon. h Connecticut. — In addition to the citations given ante, in not describing the second class, the recent Practice Act of 1879 (Pub. Acts 1879, p. 432 )» contains the following provisions : § 1 : "There shall be hereafter but one form of civil action." § 6 : "All courts which are vested with jurisdiction both at law and in equity may hereafter, to the full extent of their re- spective jurisdictions, administer legal and equitable rights, and apply legal and equitable remedies, in favor of either party, in one and the same suit; so that legal and equitable rights of the parties may be enforced and pro- tected in one action ; provided, that wherever there is any variance between the rules of equity and the rules of the common law in reference to the same matter, the rules of equity shall prevail." The other states included in this fourth class because they have also adopted the reformed system of procedure are described ante, in notes to the first and second classes. Indiana. — Const., art. VII., § 8 : "Circuit courts shall have such civil and criminal jurisdiction as may be prescribed by law." § 20: Commissioners must be appointed to simplify the practice. "They shall provide for abolishing the forms of actions at law now in use, and that justice shall be administered in a uniform mode of pleading, without distinction be- tween law and equity." Gavin and Hord's Ind. Stats., vol. 2, p. 7, chap. 14: "Circuit courts shall have jurisdiction of all kinds of civil actions." "Such courts shall have power to make all proper judgments, sentences, decrees, orders, and injunctions, and to issue all processes, and to do such other acts as may be proper to carry into effect the same, in conformity with the constitution and laws of this state."J § 287, (1») Colorado. — Const., art. tion for the enforcement or protec- VI §11: "The district courts shall tion of private rights, and the redress have original jurisdiction of all or prevention of private wrongs, causes, both at law and in equity." which shall be the same at law and Code Proc, § 1 : "The distinction be- in equity, and which shall be denomi- tween actions at law and suits in nated a civil action." equity, and the distinct forma of ac- § 287, (i) Connecticut. — Gen. Stats, tion, and suits heretofore existing 1888, §§ 872, 877. are abolished, and there shall be in §287, (J) /ndmna.— Eev. Stats, this state but one form of civil ac- 1888, §1314; Stats. 1881, p. 102: 549 ABSTRACT OF LEGISLATIVE PROVISIONS. § 288 ous states, since the whole power belonging to a court of chancery seems to be given either expressly or impliedly in all the commonwealths with a few exceptions, yet practi- cally such a complete uniformity by no means exists. The Kansas.— Const., art. III., §6: "District courts shall have such juris- diction as may be provided by law;" that of the supreme court is entirely appellate. Gen. Stats. 18G8, p. 304, chap. 28, § 1 : District courts "shall have a general original jurisdiction of all matters, civil and criminal, not .otherwise provided by law." Minnesota. — Stats, at Large of 1873, p. 723, § 17: "District courts shall have original jurisdiction of all civil actions." § 18 : "The district courts have original jurisdiction in equity, and all suits or proceedings instituted for equitable relief are to be commenced, prosecuted, and conducted to a final decision and judgment by the like process, pleadings, trial, and pro- ceedings as in civil actions, and shall be called civil actions." Stats. 1SG6, chap. 64, tit. I. Missouri. — Const., art. VI., § 13 : Circuit Courts "shall have exclusive original jurisdiction in all civil cases which shall not be cognizable before justices of the peace." Wagner's Stats. 1870, p. 431, § 2: "Circuit courts shall have . . . exclusive original jurisdiction in all civil cases which shall not be cognizable before county courts and justices of the peace." k, 1. Ohio. — Const., art. XIV., § 3 : Courts of common pleas are the tribunals of original general jurisdiction throughout the state; and (§ 4) they have "such jurisdiction as shall be conferred by law." There is also a superior court of the city of Cincinnati possessing the same jurisdiction within cer- tain territorial limits. Swan and Critchfield's Rev. Stats. 1870, p. 386, chap. 32, § 33 :"* Courts of common pleas "shall have original jurisdiction in all civil cases where the sum or matter in dispute exceeds the exclusive "Circuit courts shall have original ex- shall be but one form of civil action, elusive jurisdiction in all cases at law and law and equity may be adminis- and in equity whatsoever, . . . ex- tered in the same action." cept where exclusive or concurrent § 287, (1) North Dakota. — Const., jurisdiction is or may be conferred § 103 : "The district court shall have by law upon justices of the peace." original jurisdiction, excerpt as other- Section 287 of the text is cited in wise provided in this constitution, of Blair v. Smith, 114 Ind. 114, 15 N. E. all causes, both at law and equity." 817, By section 111, provision is made for § 287, (k) Montana. — Const., art. conferring general jurisdiction on VIII., § 11: "The district courts shall certain county (probate) courts, have original jurisdiction in all cases §287, (n») Ohio. — Smith & Bene- at law and in equity." §28: "There dicfs Eev. Stats. 1890,_ p. 124, §456. § 288 EQUITY JURISPRUDENCE. 550 real condition of the jurisdiction as it is administered in the different groups of states requires a brief statement of the judicial interpretation which has been given to the con- stitutional and statutory grants of power, either taken sep- arately or arranged according to their respective types. This judicial intei'pretation is described in the following section. original jurisdiction of justices of the peace." A like power is given to the superior court of Cincinnati within its territorial limits. South Carolina. — The constitution of 1868 provides for an appellate court and lower courts of original jurisdiction; and that the distinction between suits in equity and actions at law shall be abolished. Prior to this revision of the constitution, law and equity had been administered by distinct tribunals. In 1870 a code of procedure was adopted similar in all respects to the like code which had prevailed in New York since 1849, by which the legal and equitable jurisdictions are combined in the same proceedings. n In two other states of this class all distinction between legal and equi- table actions has been abandoned, but the peculiar methods of the refonned procedure have not been adopted. The law of Louisiana, both with re- spect to substantive or primary I'ights and to remedies, is based upon the "civil law" as that had been modified and reconstructed by the French codes. The substantive law of Texas has also a large element of the "civil law," but recognizes the common law and the principles of equity. Its remedial procedure provides one form of action for all kinds of relief, but does not copy either the common-law or the chancery methods. In each of these states many of the principles, doctrines, and remedies of equity constitute a part of the jurisprudence, for no enlightened system could be without them. Texas. — Const. 1869, art. V., § 3 : The supreme court has only an appel- late jurisdiction. §7: "District courts have original jurisdiction of all suits, without regard to any distinction between law and equity, when the value of the matter in controversy is one hundred dollars or more." o, p. §287, (n) South Dakota. — Const., art. IV., §6: "The .superior court art. v., § 14: "The circuit courts shall have original jurisdiction in all shall have original jurisdiction of all cases in equity," and in many cases actions and causes, both at law and at law. in equity." General jurisdiction may § 287, (p) Wyoming. — Const., art. be conferred by statute on county V., § 10: "The district court shall (probate) courts. have original jurisdiction of all § 287, (o) Washington, — Const.^ causes, both at law and in equity." 551 JUDICIAL INTERPRETATION OF JURISDICTION. § 289 SECTION 11. THE JURISDICTION AS ESTABLISHED BY JUDICIAL INTER- PRETATION. ANALYSIS. § 289. The questions to be examined stated. § 290. Diversity of statutory interpretation in different statei. S§ 291-298. United States courts, equity jurisdiction of. §292. First principle: Uniformity of jurisdiction. §293. Second principle: Identity of jurisdiction. §294. Thiird principle: Extent of the jurisdiction. §295. Fourth principle: Inadequacy of legal remedies. §§296,297. Illustrations. §297. Ditto; effect of state laws on the subject-matter of the juris- diction. § 298. Territorial limitations on the jurisdiction. §§ 299-341. States in which only a special and partial jurisdiction has been given by statute. §§ 299-310. New Hampshire. §§ 311-321. Massachusetts. §§ 322-337. Maine. §§ 338-341. Pennsylvania. §§ 342-352. The other states in which a general jurisdiction has been given. § 342. What states are included in this division. § 343. Questions to be examined stated. § 344. Interpretation of statute limiting the jurisdiction to cases for which the legal remedy is inadequate. §345. General extent of the statutory jurisdiction; the states arranged in the foot-note. 81 346-352. How far this equity jurisdiction extends to the administration of decedents' estates. § 347. Probate courts, jurisdiction and powers of. §348. Class first: The ordinary equity jurisdiction over administrations expressly abolished. § 349. Class second : Such jurisdiction practically abrogated or obsolete. §350. Class third: Such jurisdiction still existing and actually con- current. §§351,352. Special subjects of equity jurisdiction connected with or grow- ing out of administrations. §§ 353-358. States which have adopted the reformed system of procedure. § 354. General effect of this procedure on the equity jurisdiction, §§ 355-358. Its particular effects upon equity. § 356. On certain equitable interests and rights. § 357. On certain equitable remedies. § 358. On the doctrine as to inadequacy of legal remedies. § 289. Questions Stated. — Having collected the legisla- tive grants of equitable jurisdiction, I shall now, for the § 290 EQUITY JURISPRUDENCE. 552 purpose of arriving at a practical result, describe in a very brief and condensed manner the judicial interpretation which has been given to them. It will not be necessary to examine each of them separately ; they may, with a very few exceptions, be conveniently grouped and discussed accord- ing to three or four prevailing types. It was remarked at the close of the last section that while there appeared to be a very general agreement on the amount of equitable ju- risdiction conferred by the constitutions and statutes, yet practically such a complete uniformity does not exist. This actual condition results from several causes. § 290. Different Theories of Interpretation. — In the first place, a marked diversity will be found in the fundamental motives and theory of the judicial interpretation put upon these legislative provisions by the courts of different states. In some of them a strong tendency has been shown to lay much stress upon the limiting clauses contained in the stat- utory grants of authority, and to give a broad meaning and controlling operation to such clauses as those which restrict the equitable jurisdiction to cases ''where there is no plain, adequate, and complete remedy at law." In others, the tendency has been towards a more liberal construction ; to hold that these and similar clauses are simply declaratory of a familiar principle embodied in the general theory of equity jurisdiction, and add no restriction whatever to the extent of jurisdiction which would have been conferred without their presence; in short, that they merely state a limitation which is necessarily involved in the very concep- tion of the equitable jurisdiction. In the second place, the apparent uniformity in the jurisdiction created by these general provisions has been greatly interfered with, and even destroyed, by the different systems of legislation adopted by various states with reference to many important branches of the municipal law, which originally, and prior to any statutory interposition, formed a part of the equity jurisprudence. In man}^, and perhaps most, of the states, subjects which fell within the domain of equity, and which 553 JUDICIAL INTERPRETATION OF JURISDICTION. § 291 were governed by equitable doctrines as administered by the court of chancery, have been wholly subjected to a statu- tory regulation, and committed to special tribunals, such as the courts of probate, so that the interference of equity is no longer necessary^ even if it is possible. Other depart- ments of the municipal law — as, for example, trusts and married women's property — have been modified by legis- lation, so that the material upon which the equity jurisdic- tion acted has been altered, limited, or perhaps enlarged. Some of these changes have already been described. This same method of modifying the equitable jurisdiction has even been carried out to a much greater extent. In several of the states, the municipal law has been, either wholly or in large part, reduced to a codified form, and the doctrines and rules, both of law and equity, have thus been combined into one statutory system; or at least, the division walls between them have, to a considerable extent, been broken down. From these facts, the conclusion is evident, that in order to ascertain the actual jurisdiction of equity as it now exists in the different states, an examination is requisite both of the judicial decisions interpreting its fundamental grants of power, and of the statutes which have modified the subject-matter upon which it acts. In the brief ex- amination of the judicial construction which follows, I shall consider first and separately the United States, and shall then take up the several states, arranged in a few groups. § 291. The United States. — The constitution of the United States recognizes equity as a part of the national juris- prudence inherited from England at the time of the Revolu- tion, and the equitable jurisdiction as a part of the judicial powers conferred upon the national tribunals. The stat- utes of Congress have, as is seen by the extracts given in the preceding section, acted upon this constitutional provi- sion ; and have, in broad terms, intrusted the exercise of this jurisdiction to the courts of original jurisdiction, which are established throughout the states, and to the supreme court created by the constitution as the -appellate tribunal of last § 292 EQUITY JURISPRUDENCE. 554 resort. In giving a judicial interpretation to these consti- tutional and statutory enactments, the national courts have, by numerous decisions, settled the following principles, which may justly be regarded as the foundations of the equitable powers possessed by the national judiciary. § 292. First Principle: Uniformity. — The equitable juris- diction of the national courts, being derived wholly from the United States constitution and statutes, exists uni- formly and to its full extent throughout the entire Union, in- dependent of and unaffected by any state laws, or any peculiar system of jurisprudence and legislation adopted by individual states. It is the same in Louisiana with its civil-law code, in California with its code combining legal and equitable doctrines, and in New Jersey, which has pre- served the ancient English system of common law and equity almost unaffected by modem legal reform. What- ever may be the municipal law of any particular state, either in its substance or its form, the United States courts in that state preserve their equitable jurisdiction, and ad- minister the equitable jurisprudence unchanged by such local legislation. It follows, as a necessary consequence from this principle, that the reformed system of procedure now prevailing in many states and territories, whereby all distinction between suits in equity and at law is abolished, and all rights are maintained and all reliefs procured by means of one judicial proceeding, called the "civil action," has not in the least affected either the doctrines of equity jurisprudence administered, nor the extent and modes of equity jurisdiction exercised, by the national courts situ- ated and acting within the same commonwealth.^ » § 292, 1 This result of the principle stated in the text is recognized and followed by the most recent legislation of Congi'ess upon the subject. U. S. Rev. Stats., § 914 (Laws of 1872, chap. 255, § 5, 17 Stats, at Large, p. 197), provides that practice, pleading, forms, and modes of proceeding §292, (a) The text is cited in Ne- port of the principle of this and the vada-California Power Co. v. Hamil- next following paragraph, see Bojle ton, 235 Fed. 317. In further .sup- v. Zacharie & Turner, 6 Pet. 648, 8 555 JUDICIAL INTERPRETATION OF JURISDICTION. § 293 § 293. Second Principle: Identity. — The second prin- ciple is a corollary of the first. The equitable 'jurisdiction is the same with respect to its nature and extent in all the states, and is wholly unmodified and unabridged by state in civil causes, other than in equity or in admiralty, shall conform as near as may be to the forms, pleading, etc., existing at the time in like causes in the courts of record of the state within which the United States court is held. This provision preserves the equity methods unchanged by the state laws. The following cases maintain the doctrine formulated in the text: Bodley v. Taylor, 5 Cranch, 191, 221, 222; Livingston v. Story, 9 Pet. 632 (equity jurisdiction in Louisiana) ; Clark v. Smith, 13 Pet. 195, 203; Watkins v. Holman, 16 Pet. 25, 26, 58, 59; Bennett v. Butterworth, 11 How. 669, 674, 675; Stinson v. Dousman, 20 How. 461, 464; Greer v. Mezes, 24 How. 268, 277, per Grier, J.; Lessee of Smith v. McCann, 24 How. 398, 403; Barber v. Barber, 21 How. 582, 591, 592; Noonan v. Lee, 2 Black, 499, 509; Thompson v. Railroad Co., 6 Wall. 134, 137; Dunphy V. ICleinsmith, 11 Wall. 610, 614; Walker v. Dreville, 12 Wall. 440 (in Louisiana) ; Basey v. Gallagher, 20 Wall. 670, 679, 1 Mont. Ter. 457; Case of Broderick's Will, 21 Wall. 503; Shuford v. Cain, 1 Abb. (U. S. C. C. A.) 302, 305; Loring v. Downer, 1 McAll. 360, 362; Mezes v. Greer, 1 McAU. 401, 402; Byrd v. Badger, 1 McAll. 443, 444; Lorman v. Clarke, 2 McLean, L, Ed. 532, by Story, J.; Russell v. 632; Gaines v. Relf, 15 Pet. 9; Mc- Southard, 12 How. 148, 13 L. Ed. Collum v. Eager, 2 How. 61; Bein v. 931; Neves v. Scott, 13 How. 270, 14 Heath, 12 How. 168; Walker v. Dre- L. Ed. 140; Pennsylvania v. Wheel- ville, 12 Wall. 440; Eidings v. John- ing Bridge Co., 18 How. 460, 15 L. Ed. son, 128 U. S. 212, 217, 9 Sup. Ct. 449; Hipp v. Babin, 19 How. 271, ;-^ 72, 74; New Orleans v. Louisiana L. Ed. 633; Bronson v. Schulten, 104 'i^onstruction Co., 129 U. S. 46, 47, 9 U. S. 410, 26 L. Ed. 797; In re Saw- Sup. Ct. 223, 224; Fleitas v. Rich- yer, 124 U. S. 200, 210, 8 Sup. Ct. ardson, 147 U. S. 538, 545, 13 Sup. 487; Willard v. Wood, 135 U. S. Ct. 429, 432. 309, 10 Sup. Ct. 831; Dodge v. Tul- Effect of the Codes.— The federal leys, 144 U. S. 451, 12 Sup. Ct. 728; courts refuse to ccnform to those California v. Southern Pae Co., 157 provisions of the codt* which per- il. S. 229, 15 Sup. Ct. 591; Nalle v. mit the uniting of legal ind equi- Young, 160 U. S. 624, 16 Sup. Ct. table causes of action in the same 420; Fitts v. McGhee, 172 U. S. 516, suit: Hurt v. Hollingsworth, 100 531, 19 Sup. Ct. 269, 275; Fletcher V. V. S. 100, 103, 25 L. Ed. :>71 Morey, 2 Story, 567, Fed. Cas. No. (Texas); La Mothe, etc., Co. ,> . 4,864; Alger v. Anderson, 92 Fed. Tube, etc., Co., 15 Blatchf. 436, Fed. 696, 700, 710. Cas. No. 8,033; Kenton, etc., Co. v. As to the equity jurisdiction of McAlpin, 5 Fed. 737, 740; Gudger v. the United States courts in Louisi- Western, etc., R. Co., 21 Fed. 81, 84| ana, see Livingston v. Story, 9 Pet. Phelps v. Elliott, 23 Blatchf. 473, § 293 EQUITY JURISPRUDENCE. 556 legislation wliicli deals with subjects belonging to tbe gen- eral system of equity jurisprudence. State laws subtract- ing from or limiting the scope of equity do not act upon the equitable powers and jurisdiction held by the national 668 ; Putnam v. City of New Albany, 4 Biss. 365. The principle was con- cisely and clearly stated in Shuford v. Cain, 1 Abb. (U. S. C. C. A.) 302, 305, by Erskine, J. : "In the courts of many states — Georgia, for example — law and equity are in a greater or less degree blended. This commingling is unknown in the national courts. ... As courts of equity, they entertain suits in which the relief is sought according to the principles, and in gen- eral the practice, of the equity jurisdiction as established in English juris- prudence ;" citing Parsons v. Bedford, 3 Pet. 447 ; Robinson v. Campbell, 3 Wheat. 212; United States v. Rowland, 4 Wheat. 108; Pennsylvania v. Wheeling Bridge Co., 13 How. 519. In Thompson v. Railroad Co., 6 Wall. 134, 137, the supreme court distinctly held that the state codes abol- ishing the distinction between legal and equitable proceedings, and estab- lishing one civil action, etc., do not affect the jurisdiction or methods of the United States courts in such states. In Putnam v. New Albany, 4 Biss. 365, it was held that the Indiana code of procedure giving certain equitable remedies in courts of law does not oust a court of equity of its former jurisdiction to give the same or similar remedies by suit. 26 Fed. 881, 883; Cherokee Nation 315, 30 Fed. 547, 561; Kircher v. V. Southern Kansas Ey., 33 Fed. 900, Murray, 54 Fed. 617, 626, 60 Fed. 914; Union Pac. R. Co. v. United 52, 23 U. S. App. 214 (trespass to States, 59 Fed. 813, 19 U. S. App. try title cannot be sustained on the 531, 8 C. C. A. 282; Blalock v. Equi- wife's equitable interest in the com- table L. Assur. Soc, 75 Fed. 43, 21 munity property); Stone v. Perkins, C. C. A. 208 (in action at law for 85 Fed. 616, 620 (plaintiff in eject- fraud and deceit in obtaining the ment can get no support on ground surrender of an insurance policy, a of estoppel); Beatty v. Wilson, 161 prayer for equitable relief should be Fed. 453; or which permit an equi- treated as surplusage); In re Foley, table defense to be set up in a legal 76 Fed. 396; Coit v. Sullivan, etc., action: Jones v. McMasters, 20 How. Co., 84 Fed. 724, 725; Berkey v. Cor- 8, 22, 15 L. Ed. 805 (Texas); Greer nell, 90 Fed. 711, 717; First Nat. v. Mezes, 24 How. 268, 277, 16 Bank v. Prager, 91 Fed. 689, 692, 63 L. Ed. 661; Singleton v. Touchard, U. S. App. 709; or which permit 1 Black, 345, 17 L. Ed. 50; Burnes legal relief, such as ejectment, to be v. Scott, 117 U. S. 582, 587, 6 Sup. based upon an equitable title: Fenn Ct. 863 (reviewing cases); Northern V. Holme, 21 How. 484, 16 L. Ed. Pac. R. R. v. Paine, 119 U. S. 561, 199; Hooper v. Scheimer, 23 How. 563, 7 Sup. Ct. 323; Butler v. Young, 235, 16 L. Ed. 452; Sheirburn v. De 1 Flipp. 277, Fed. Cas. No. 2,245; Ccrdova, 24 How. 423, 16 L. Ed. Montijo v. Owen, 14 Blatchf. 325, 741; Bouldin v. Phelps, 12 Sawy. Fed. Cas. No. 9,722; Lerma v. Ste- 557 JUDICIAL INTERPRETATION OF JURISDICTION. §293 courts. But while state legislation cannot thus influence the jurisdiction negatively so as to narrow it, it may oper- ate affirmatively so as, at least indirectly, to enlarge it. The actual jurisdiction of the United States courts in large measure depends upon the personalty of the litigant par- venson, 40 Fed. 356, 359; Boggs v. Wann, 58 Fed. 681; Wilcox, etc., Co. V. Phoenix Ins. Co., 61 Fed. 199; Davis V. Davis, 72 Fed. 81, 84, 30 U. S. App. 723, 18 C. C. A. 438; Owens V. Ileidbrcder, 78 Fed. 837, 24 C. C. A. 362 (Texas: trespass to try title); Daniel v. Felt, 100 Fed. 727; Mulqueen v. Schlichter Jute Cordage Co., 108 Fed. 931; Highland Boy Gold Min. Co. v. Strickley, 116 Fed. 852; McManus v. Chollar (C. C. A.), 128 Fed. 902; Tegarden v. La Marchel, 129 Fed. 487. Thus, a federal court has no power to per- mit an equitable set-off or counter- claim in an action at law: Scott v. Armstrong, 146 U. S. 499, 512, 13 Sup. Ct. 148, 152; Snyder v. Pharo, 25 Fed. 398, 399, 400; Jewett Car Co. V. Kirkpatrick Constr. Co., 107 Fed. 622; nor an equitable plea, in an action of ejectment, that the de- fendant had in good faith and with the plaintiff's knowledge put valu- able improvements on the land; Doe V. Eoe, 31 Fed. 100; nor a defense of fraud or usury in an action on a judgment: Buller v. Sidell, 43 Fed. 116; Turner v. Hamilton, 88 Fed. 467, 473. In an action on contract, persons claiming labor liens cannot intervene to have them enforced; Gravenburg v. Laws, 100 Fed. 1, 40 C. C. A. 240. Where, in an action for damages, a release was set up, the plaintiff cannot, in the same ac- tion, procure the release to be set aside on the ground of fraud or un- due influence: Johnson v. Merry Mount Granite Co., 53 Fed. 569; Hill V. Northern Pac. R. Co., 104 Fed. 754, 113 Fed. 914, 51 C. C. A. 544; also. Pacific Mutual Life Ins. Co. v, Webb, 157 Fed. 155, 13 Ann. Cas. 752, 84 C. C. A. 603. In Bennett v. Butterworth, 11 How. 669, 674, 675, 13 L. Ed. 859, Taney, C. J., speaks thus of the ef- fect of state statutes abolishing the distinction between legal and equi- table actions: "Whatever may be the laws of Texas in this respect, they do not govern the proceedings in the courts of the United States. And although the forms of proceed- ings and practice in the state courts have been adopted in the district court, yet the adoption of the state practice must not be understood as confounding the principles of law and equity, nor as authorizing legal and equitable claims to be blended together in one suit. The constitu- tion of the United States in creat- ing and defining the judicial power of the general government estab- lishes this distinction between law and equity; and a party who claims a legal title must proceed at law, and may undoubtedly proceed ac- cording to the forms of practice in such cases in the state court. But if the claim is an equitable one, he must proceed according to rules which this court has prescribed (un- der the authority of the Act of Aug. 23, 1842) regulating proceedings in equity in the courts of the United States." The provision of the codes requir- ing suits to be in the name of the § 293 EQUITY JURISPRUDENCE. 558 ties, — their state citizenship, — and extends to all subjectr matters belonging to such tribunals. The primary rights, interests, or estates of the litigant parties, which are dealt with by the exercise of this jurisdiction, must often, there- fore, be created by state laws, and not by statutes of Con- gress. It has accordingly been repeatedly held that while the equitable jurisdiction cannot be narrowed or limited by any state legislative or judicial action, on the other hand, if equitable primary rights, interests, or estates have been enlarged, or if entirely new equitable primary rights or interests have been created, by state laws, such enlarged or new rights will necessarily come within the equity jurisdiction of the national courts, and may be protected, maintained, and enforced in appropriate suits by proper remedies. ^ * A very striking illustration of § 293, 1 Pratt v. Northam, 5 Mason, 95, 105 ; Lorman v. Clarke, 2 Mc- Lean, 568; Livingston v. Van Ingen, 1 Paine, 45; Canal Co. v. Gordon, 6 Wall. 561, 568 ; Barber v. Barber, 21 How. 582, 591, 592 ; Case of Broder- ick's Will, 21 Wall. 503 ; Noonan v. Lee, 2 Black, 499, 509 ; Livingston v. Story, 9 Pet. 632; Clark v. Smith, 13 Pet. 195, 203; Putnam v. New Albany, 4 Biss. 365. In Pratt v. Northam, 5 Mason, 95, Story, J., thus stated the general doctrine: "It has been often decided by the supreme court that the equity jurisdiction of the courts of the United States is not limited or restrained by the local remedies in the different states; that it is the same in all the states, and is the same which is exercised in the land of our ancestors, from whose jurisprudence our own is derived"; citing Robinson v. Campbell, 3 Wheat. 212; United States v. Rowland, 4 Wheat. 108, 115. In Lorman v. Clarke, 5 McLean, 568, McLean, J., decided in the circuit court for Michigan, that the "United States courts derive their equity as well as their common-law jurisdiction from the con- stitution and laws of the United States. In states where there is no chancery court, the equity jurisdiction of the United States courts is ihe "real party in interest" is followed Biss. 338, Fed. Cas. No. 120; Weed, on the law side of the federal etc., Co. v. Wicks, 3 Dill. 265, Fed. courts; consequently there is no Cas. No. 17,348; Daniels v. Citizens' necessity for the assignee of a chose Ins. Co., 10 Biss. 120, 5 Fed. 425, in action to sue in equity; Thomp- 429. son V. Central Ohio K. K. Co., 6 § 293, (a) Jurisdiction not Abridged Wall. 134, 18 L. Ed. 765; Hay ward by State Legislation. v. Andrews, 106 U. S. 678, 1 Sup. Injunction. — The jurisdiction, on Ct. 544, 549; Akerly v. Vilas, 3 the ground of avoiding a multiplic- 559 JUDICIAL INTERPRETATION OF JURISDICTION. §293 this principle may be seen in tbe power of the United same as in other states. A state cannot enlarge nor restrict the jurisdic- tion of the United States courts. But the primary rights of parties may be governed by or created by the laws of a state; and the jurisdiction of the United States to adjudicate upon those rights, and the modes whether equitable or legal, are governed by United States laws." In Barber v. Barber, 21 How. 582, 591, 592, Wayne, J., said: "It is no objection to the equity jurisdiction in the courts of the United States, that there is a remedy under the local law, for the equity jurisdiction of the federal courts is the same in all the states, and is not affected by the existence or nonexistence of an equity jurisdiction in the state tribunals. - It is the same in nature and extent as the jurisdiction of England, whence it is derived;" citing Livingston v. Story, 9 Pet. 632. In Case of Broderiek's Will, 21 Wall. 503, the supreme court held that "alterations in the juris- diction of state courts cannot affect the equitable jurisdiction of the United States courts, so long as the equitable rights themselves remain; but an enlargement of equitable rights may be administered by United States courts as well as by the state courts." ity of suits, to enjoin the enforce- ment of a state statute providing for the fixing of railroad rates, is unaffected by the fact that the stat- ute provides a legal remedy; Smyth V. Ames, 169 U. S. 466, 516, 18 Sup. Ct. 418, 422. The right to enjoin illegal taxation upon some recognized equitable ground, such as cloud upon title to real estate, is not barred by the existence of special statutory remedy: Gregg v. Sanford, 65 Fed. 151, 157, 28 U. S. App. 313 Third Nat. Bank v. Mylcn, 76 Fed 385; Brown v. French, 80 Fed. 166, 169; Taylor v. Louisville & N. R. Co., 88 Fed. 350, 359, 60 U. S. App 185, 31 C. C. A. 537; Bank of Ken tucky V. Stone, 88 Fed. 383, 391 also. Western Union Tel. Co. v Trapp, 186 Fed. 114, 108 C. C. A 226; Nevada California Power Co v. Hamilton, 235 Fed. 317 (statute provided for a defense as to the ex- cess in a suit to collect the tax) ; but see Union Pae. R. Co. v. Board of Com'rs, 222 Fed. 651, 138 C. C. A. 175, relying on Singer Sew- ing Machine Co. v. Benedict, 229 U. S. 481, 57 L. Ed. 1288, 33 Sup. Ct. 942. The subject is examined fur- ther in Pom. Eq. Remedies, Chapter on Injunction Against Taxation. Jurisdiction to enjoin trespass is not ousted by the statutory action of forcible entry and detainer: Poke- gama S. P. L. Co. v. Klamath R. L. & L Co., 96 Fed. 34, 55. The right to an injunction in the federal courts against the enforcement of a state court judgment procured by fraud, accident, or mistake cannot be impaired by a state statute giv- ing a new remedy against the un- conscionable judgment in the state courts: National Surety Co. v. State Bank, 120 Fed. 593 (C. C. A.); Breo- den V. Lee, 2 Hughes, 488, Fed. Cas. No. 1,828; Davenport v. Moore, 74 Fed. 945, 952; Missouri, K. & T. Co. v. Elliott, 56 Fed. 775. It is proper for the federal court in such cases to be guided by a state statute which requires the complainant to §293 EQUITY JUKISPEUDENCB. 560 States circuit courts to entertain a suit for the gen- show that he is equitably not bound to pay the judgment; Massachusetts Benefit Life Ass'n. v. Lohmiller, 74 Fed. 23, 29, 20 C. C. A. 274, 46 U. S. App. 103. Injunction against the levying of an execution on partner- ship property in which the judgment debtor had no interest will not be denied because the state statute pro- vides a legal remedy; Cropper v. Coburn, 2' Curt. 465, 472, Fed. Cas. No. 3,416. Cancellation. — A bill by a mort- gagee to set aside a fraudulent tax sale of the premises is not aifected by a state statute limiting the rem- edy to the owner; Singer Mfg. Co. V. Yarger, 2 McCrary, 585, 12 Fed. 487, 488. Jurisdiction to cancel a forged instrument on the ground of possible loss of evidence in a future suit thereon cannot be abridged by the existence of state statutes pro- viding for the perpetuation of testi- mony; Schmidt v. West, 104 Fed. 272. See, also. United States Life Ins. Co. V. Cable, 98 Fed. 761, 39 0. C. A. 756. Statutory remedy by motion to vacate an award of arbi- trators does not deprive the federal courts of jurisdiction to set aside the award and enjoin actions there- on; Hartford Fire Ins. Co. v. Bonner Mercantile Co., 44 Fed. 151, 11 L. E. A. 623. Partition. — The general jurisdic- tion of the federal courts as courts of equity cannot be limited by a state statute confining the remedy to complainants in possession; Lamb V. Starr, Deady, 350, Fed. Cas. No. 8,021. Specific Performance of a con- tract to convey lands may be en- forced against a municipality, al- though there is an adequate remedy by mandamus in the state courts; Provisional Municipality of Pensa- cola V, Lehman, 57 Fed. 324, 331, 13 U. S. App. 411. And specific per- formance by a municipality of an obligation in the nature of an im- plied trust to deliver certain bonds may be compelled, notwithstanding that the state provides a special statutory remedy; Kimball v. Mo- bile, 3 Woods, 565, Fed. Cas. No. 7,774. Foreclosure of Mortgages. — The existence of a state statutory rem- edy does not oust the federal equity jurisdiction: Benjamin v. Cavaroc, 2 Woods, 172, Fed. Cas. No. 1,300; Bay V. Tatum, 72 Fed. 112, 30 U. S. App. 635 (deed absolute in form); H. B. Claflin Co. v. Furtick, 119 Fed. 429 (chattel mortgage). The juris- diction is not affected by the fact that the mortgagor has made a stat- utory general assignment for the benefit of creditors, which would have the effect of limiting a citizen of the same state to enforcing the mortgage in the court which was ad- ministering the property; Edwards V. Hill, 59 Fed. 723, 19 U. S. App. 493. Eq.uitable Liens may be enforced in the federal courts, although no remedy is provided for the enforce- ment of such liens by the state ju- risprudence in the state courts; Bur- don Cent. Sugar Eefin. Co. v. Ferris Sugar Mfg. Co., 78 Fed. 417, 422. Creditor's Bills wUl lie in the fed- eral courts, in accordance with the general principles of equity, notwith- standing that the judgment creditor may have a legal remedy available in the courts of the state. See United States v. Howland, 4 Wheat. 108, 4 L. Ed. 526 (a leading case; 561 JUDICIAL INTERPRETATION OF JURISDICTION. 293 eral administration and settlement of a decedent's legal remedy in state courts against the debtor of complainants' debtor) Byrd v. Badger, 1 McAll. 445, Fed Cas. No. 2,266 (proceedings supple mentary to execution, being cqui table in thoir nature, cannot be pur sued on the law side of the court) ; Orendorf v. Budlong, 12 Fed. 24 (setting aside fraudulent convey- ance) ; Fleisher v. Greenwald, 20 Fed. 547 (setting aside fraudulent deed of assignment); First Nat. Bank v. Steinway, 77 Fed, 661; Mississippi Mills v. Cohn, 150 U. S. 202, 14 Sup. Ct. 75. Miscellaneous. — See United States V. Parrott, 1 McAll, 2SS, Fed. Cas. No. 15,998 (injunction against waste); Pittsburgh, C. & St. L. R. Co. V. Keokuk & H. Bridge Co., 68 Fed. 19, 46 U. S. App. 530 (account- ing); General Electric Co. v. West Asheville Imp. Co., 73 Fed. 386 (winding up affairs of defunct cor- poration); Sowles V. First Nat. Bank, 100 Fed. 552 (establishing a set-off) ; Barrett v. Twin City Power Co., 118 Fed. 861. Federal court has jurisdiction to remove a cloud on title at the suit of a party in possession, though under the en- larged scope of the remedy of eject- ment the remedy in the state court was at law: Acord v. Western Poco- hontas Corporation, 156 Fed. 989; and to reform deeds in complain- ant's chain of title containing a mis- description of the land intended to be conveyed, though the state stat- ute (Teunessee) authorizes relief in a eo.irt of law: American Ass'n v. Williams, 166 Fed. 17, 93 C. C. A. 1; and see Butterlield v. Miller, 195 Fed. 200, 115 C. C. A. 152. Enlargement of Jurisdiction as Result of State Legislation. — That 1—36 an "enlargement of equitable rights" effected by state legislation may be administered by the federal courts is a familiar doctrine. "Although a state law cannot give jurisdiction to any federal court, yet it may give a substantial right of such a character that, when there is no impediment arising from the residence of the parties, the right may be enforced in the proper federal tribunal, whether it be a court of equity, ad- miralty or of common law"; Rey- nolds V. Crawfordsville Bank, 112 U. S. 410, 5 Sup. Ct. 216. This prin- ciple, however, is subject to impor- tant limitations produced by section 723 of the Revised Statutes, and by the seventh amendment of the Con- stitution of the United States. The state law "cannot control the pro- ceedings in the federal courts, so as to do away with the force of the law of congress declaring that 'suits in equity shall not be sustained in either of the courts of the United States, in any case where a plain, adequate, and complete remedy may be had at law,' or the constitutional right of parties in actions at law to a trial by a jury"; Whitehead v. Shattuck, 138 U. S. 146, 11 Sup. Ct. 277, by Field, J. "All actions which seek to recover specific property, real or personal, with or without damages for its detention, or a money judgment for breach of a simple contract, or as damages for injury to person or property, are legal actions, and can be brought in the federal courts only on their law side. Demands of this kind do not lose their character as claims cogni- zable in the courts of the United States only on their law side, be- cause in some state courts, by virtu© §293 EQUITY JURISPRUDENCE. 562 personal estate, when the citizenship of the parties is of state legislation, equitable relief in aid of the demand at law may be sought in the same action. Such blending of remedies is not permis- sible in the courts of the United States": Scott v. Neely, 140 U. S. 106, 11 Sup. Ct. 712, 714, by Field, J. See, also, South Penn. Oil Co. v. Miller, 175 Fed. 729, 99 C. C. A. 305. The following cases, among many others, illustrate this principle: The federal courts will follow a state statute extending the right to an in- junction against illegal taxation; no constitutional right to a jury trial is infringed by such remedy; Cum- mings V. National Bank, 101 U. S. 157, 25 L. Ed. 904; Lindsay v. First Nat. Bank, 156 U. S. 485, 493, 15 Sup. Ct. 472, 475; Grether v. Wright, 75 Fed. 742, 746, 43 U. S. App. 770; Lander v. Mercantile Nat. Bank (C. C. A.), 118 Fed. 785, 791; but see Illinois Life Ins. Co. v. New- man, 141 Fed. 449; dispensing with an allegation or proof of defend- ant's insolvency in an action to en- join the cutting of timber; Lanier v. Allison, 31 Fed. 100, 102; extending the remedy of interpleader to cases where the conflicting claims are in- dependent of each other; Wells, Fargo & Co. v. Miner, 25 Fed. 533; allowing jiartition of joint posses- sory rights to a mining claim; As- pen Mining & S. Co. v. Eucker, 28 Fed. 220; contra, Strettell v. Ballou, 3 McCrary, 46, 9 Fed. 256; declaring a preferential assignment to be a trust for the benefit of all the cred- itors of the assignor; George T. Smith M. P. Co. v. McGroarty, 136 U. S. 240, 10 Sup. Ct. 1019; dispen- sing with the requirement that the complainant must do equity, in a suit to set aside a usurious contract; Missouri, K. & T. Trust Co. v. Krumseig, 172 U. S. 359, 361, 19 Sup. Ct. 179, 182, 183,' affirming 77 Fed. 41, 40 U. S. App. 620; empowering courts of equity to pass the title to real estate by decree, without any act on the part of the respondent; A. & W. Sprague Mfg. Co. v. Hoyt, 29 Fed. 421, 428; Single v. Scott Paper Mfg. Co., 55 Fed. 553, 556; Deck V. Whitman, 96 Fed. 873, re- viewing many cases; authorizing the appointment of a receiver of a cor- poration on the sole ground of its insolvency, at the suit of mortgage creditors; United States Shipbuild- ing Co. V. Conklin (C. C. A.), 126 Fed. 132, authorizing the winding up of an insolvent corporation at the suit of a stockholder; .Jacobs v. Mexican Sugar Co., 130 Fed. 589. State statute extending the defini- tion of "cloud on title" to include an instrument void on its face: Louisville & Nashville E. Co. v. Western Union Tel. Co., 234 U. S. 369, 58 L. Ed. 1356, 34 Sup. Ct. 810 (statute of Mississippi) ; citing Eey- nolds V. First Nat. Bank, 112 U. S. 405, 28 L. Ed. 733, 5 Sup. Ct. 213. Authorizing a suit in equity to settle the relative priorities of all persons claiming water from the same stream or source; Ames Eealty Co. V. Big Indian Mining Co., 146 Fed. 166. It is often a question of doubt whether the new right or remedy is legal or equitable in its nature. "Whenever a new right is granted by statute, or a new remedy for vio- lation of an old right, or whenever such rights and remedies are de- pendent on state statutes or acts of Congress, the jurisdiction of such cases, as between the law side and 663 JUDICIAL INTERPRETATION OF JURISDICTION. §293 such as to confer the jurisdiction. In very many of the equity side of the federal courts, must be determined by the essential character of the case; and unless it comes within some of the recognized heads of equitable jurisdiction, it must be held to belong to the other." Van Norden v. Morton, 99 U. S. 378, 380, 25 L. Ed. 455; Cherokee Nation V. Southern Kan. E'y Co., 135 U. S. 641, 651, 10 Sup. Ct. 965, 969, 33 Fed. 900, 914; Thomas v. American Freehold, etc., Co., 47 Fed. 550, 12 L. R. A. 686; Cummings v. National Bank, 101 U. S. 157, 25 L. Ed. 904; Robinson v. Campbell, 3 Wheat. 212, 223, 4 L. Ed. 372. In the following cases it was held that the new right created by stat- ute should be asserted on the equity side of the federal court: When the relief prayed for was in the nature of a decree enjoining the collection of taxes; Lindsay v. First Nat. Bank, 156 U. S. 485, 493, 15 Sup. Ct. 472, 475; statutory proceedings for partition which, by the state prac- tice, were triable without a jury; Klever v. Seawell, 65 Fed. 393, 22 U. S. App. 715, 12 C. C. A. 661; pro- ceedings without a jury, to enforce the right of an occupying claimant of land to compensation for im- provements made thereon in good faith; Bank of Hamilton v. Dudley's Heirs, 2 Pet. 492; Griswold v. Bragg, 18 Blatchf. 204, 48 Fed. 520; proceedings to enforce a mechanics' or laborers' lien, where the state statute gives an action at law for the purpose; Sheffield Furnace Co. v. Witherow, 149 U. S. 574, 579, 13 Sup. Ct. 936, 939; De La Vergne Refrig. Mach. Co. v. Montgomery Brewing Co., 46 Fed. 829; Idaho, etc.. Land Imp. Co. v. Bradbury, 132 U. S. 509, 515, 10 Sup. Ct. 179; or provides no means for enforcing it; Gilchrist v. Helena H. S. & S. R. Co., 58 Fed. 708, 711, 712. See, also, Healy Ice Machine Co. v. Green, 181 Fed. 890; Armstrong Cork Co. v. Merchants' Refrigerating Co., 184 Fed. 199, 107 C. C. A. 93; Sehmul- bach v. Caldwell, 196 Fed. 16, 115 C. C. A. 650; proceedings to deter- mine and enforce other statutory liens upon land; Alexander v. Mort- gage Co. of Scotland, 47 Fed. 131, 134; Mortgage Security Co. v. Gay, 33 Fed. 636; Thomas v. American Freehold L. & M. Co., 47 Fed. 550, 553, 12 L. R. A. 681; proceedings to enjoin the sale of land under an exe- cution against a third person (Geor- gia "claim law"); Hall v. Yahoka R. Min. Co., 1 Woods, 547, Fed. Cas. No. 5,955. "Proceedings supplemen- tary to execution" cannot be substi- tuted for a creditor's bill; Byrd v. Badger, Fed. Cas. No. 2,266; Regina Music Box Co. V. F. G. Otto & Son, 124 Fed. 747; unless they are founded on a common-law judgment, in which case the state statute may be followed, by the express authori- zation of Act July 1, 1872, chap. 255, §6; Re Boyd, 105 U. S. 647, 2^ L. Ed. 1200. In the following cases the statu- tory remedy is held to be legal in its nature: Special proceedings by an administrator for leave to sell lands to pay the debts of a decedent, al- though held by the state court to be essentially equitable, must be placed upon the law docket of the federal court, since the case does not come within any of the recognized heads of equity jurisdiction; Elliott v. Shuler, 50 Fed. 454; a state statute conferring equity jurisdiction in eases of accounting where "the na- §293 EQUITY JURISPRUDENCE. 564 the states the whole subject of administration has been ture of the account is such that it cannot be conveniently and properly adjusted and settled in a court of law" does not extend the jurisdic- tion of the federal courts; Hunton V. Equitable Life Assur. Soc, 45 Fed. 661; and a bill cannot be enter- tained for partition where the com- plainant has been disseised, and the lands are held adversely by the de- fendants, although such a bill is permitted by the state practice; Sanders v. Devereux, 60 Fed. 311, 315, 19 U. S. App. 630; Frey v. Wil- loughby, 63 Fed. 865, 27 U. S. App. 417, 11 C. C. A. 463; or when the complainant's title is disputed; American Ass'n v. Eastern Kentucky Land Co., 68 Fed. 721. Garnishment proceedings cannot be entertained on the equity side of the federal court; United States v. Swan, 65 Fed. 647, 652, 31 U. S. App. 112. Where a new liability, and a legal remedy to enforce the same, are cre- ated by statute, that remedy, and that alone, must be enforced; so held of the statutory liability of stock- holders for the debts of the corpora- tion, in Fourth Nat. Bank v. Franck- lyn, 120 U. S. 755, 7 Sup. Ct. 757, 762; National Park Bank v. Peavey, 64 Fed. 912; First National Bank v, Peavey, 69 Fed. 455; and see Alder- son V. Dole, 74 Fed. 29, 33 U. S. App. 460, 20 C. C. A. 280. Enlargement of Jurisdiction; Stat- utory Suit to Quiet Title. — A fre- quent application of these principles is found in the federal jurisdiction over statutory suits to quiet title. In the absence of statute, an owner of land can protect his title in equity only by a bill of peace or by a bill quia timet to remove a cloud upon the title. A bill of peace prop- erly lies against an individual reiter- ating an unsuccessful claim to real property only where the plaintiff is in possession and his right has been successfully maintained at law. The equity arises from the protracted litigation for the possession which the common-law action of ejectment permits. A bill quia timet to re- move cloud upon title differs from a bill of peace in that it does not seek so much to put an end to vexatious litigation as to prevent future liti- gation by removing existing causes of controversy as to its title. To maintain a suit of this character it is generally necessary that the plain- tiff be in possession, and, except where the defendants are numerous, that his title be established at law or founded on undisputed evidence or long-continued possession. The statutes in various states authorize a suit in either of these classes of cases without reference to any pre- vious judicial determination of the validity of the plaintiff's right, and, in some instances, without reference to his possession. Where the statute limits the right to parties in possession, the federal courts will take jurisdiction without question. The point arose in the early case of Clark v. Smith, 13 Pet. 195, 203, where the right was claimed under a statute of Kentucky. Ca- tron, J., said: "Kentucky has the undoubted power to regulate and pro- tect individual rights to her soil, and to declare what shall form a cloud on titles; and having so de- clared, the courts of the United States, by removing such clouds, are only applying an old practice to a new equity created by the legisla- ture, having its origin in the pecu- 565 JUDICIAL INTERPEETATION OF JURISDICTION. §293 taken from the equity tribunals, and conferred upon liar condition of the country." In speaking of such a statute, the court, in Central Pac E. R. Co. v. Dyer, 1 Sawy. 649, Fed. Cas. No. 2,552, said: "It dispenses with the neces- sity of the previous establishment of the right of the plaintiff by repeated judgments in his favor in actions at law. To that extent it confers upon the possessor of real property a new right, one which enables him, without the delay of previous proceedings at law, to draw to himself all outstand- ing inferior claims. That right the national courts will enforce in the same manner in which they will en force other equitable rights of par ties." See, also. Chapman v. Brewer 114 U. S. 171, 5 Sup. Ct. 799, 805 Bardon v. Land & Eiver Imp. Co. 157 U. S. 327, 330, 15 Sup. Ct. 650 651; Wickliffe v. Owens, 17 How. 47 51; Provident, etc., Trust Co. v Mills, 91 Fed. 435; Book v. Justice 58 Fed. 830; Bayerque v. Cohen, 1 McAll. 117, Fed. Cas. No. 1,134; Law rence v. Bowman, 1 McAll. 423, Fed Cas. No. 8,134; Prentice v. Duluth etc., Co., 58 Fed. 437, 442, 7 C. C. A 293, 19 U. S. App. 100; Gillis v Downey, 85 Fed. 483, 56 U. S. App 577; Harmer v. Gwynne, 5 McLean 317, Fed. Cas. No. 6,075. For a review of the supreme court deci sions up to 1894, see Wehrman v Conklin, 155 U. S. 314, 15 Sup. Ct 132. See, also, the following recent cases: Lawson v. United States Min- ing Co., 207 U. S. 1, 52 L. Ed. 65, 28 Sup. Ct. 15; Union Pac. R. Co. v. Cunningham, 173 Fed. 90; New Jer- sey & N. C. Land & Lumber Co. v. Gardner-Lacy Lumber Co., 178 Fed. 772, 102 C. C. A. 220, 190 Fed. 861. An actual possession of part of the premises and a constructive posses- sion of the rest is sufficient; Rob- erts V. Northern Pac. R. Co., 158 U. S. 1, 30, 15 Sup. Ct. 756, 766. Where the statute allows the suit by a party either in or out of pos- session, and the complainant is, as a matter of fact, in possession, the bill may be maintained in the federal court: Connor v. Alligator Lumber Co., 98 Fed. 155; Langstraat v. Nel- son, 40 Fed. 783; Field v. Barber Asphalt Co., 117 Fed. 925; Hanley V. Beatty, 117 Fed. 59. See, also, North Carolina Mining Co. v. West- feldt, 151 Fed. 290; A. G. "WIneman & Sons V. Reeves, 245 Fed. 254, It is immaterial that there may be an action of ejectment pending against the complainant: Langstraat v. Nel- son, 40 Fed. 783. Where the statute allows a suit by a party out of possession, a federal court will not as a general rule en- force it if the complainant is, as a matter of fact, out of possession, and defendant is in possession. It is pro- vided by Rev. Stats., § 723, that fed- eral equity courts shall not have jurisdiction where a plain, complete, and adequate remedy may be had at law, and the seventh amendment to the constitution of the United States secures the right of jury trial in all actions at law where the value in controversy exceeds twenty dollars. When the plaintiff is out of and the defendant in possession, the remedy by ejectment is said to be adequate, and there must be a jury trial if de- sired. "The right which in this case the plaintiff wishes to assert is his title to certain property; the remedy which he wishes to obtain is its pos- session and enjoyment; and in a contest over the title both parties have a constitutional right to call 293 EQUITY JUEISPRUDENCE. 566 probate courts acting under special statutory authority. for a jury"; Whitehead v. Shattuck, 138 U. S. 146, 11 Sup. Ct. 276, 277. See, also, Davidson v. Calkins, 92 Fed. 230,- Gordon v. .Jackson, 72 Fed. 86; Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 4, 61 L. R. A. 230, 50 C. C. A. 79; U. S. Min. Co. V. Lavvson, 115 Fed. 1005; Cal. Oil & Gas Co. V. Miller, 96 Fed. 12; Adoue V. Strahan, 97 Fed. 961; Gom- bert V. Lyon, 80 Fed. 305; Boston & Mont. C. C. & S. M. Co. v. Montana Ore P. Co., 188 U. S. 632, 23 Sup. Ct. 434; Morrison v. Marker (C C. A.), 93 Fed. 692, 695 (suit not maintain- able by purchaser at execution sale, who is not in possession, to set aside prior conveyance as in fraud of cred- itors) ; Giberson v. Cook, 124 Fed. 986. See, also. New Jersey Land & Lumber Co. v. Gardner Lacy Lumber Co., 190 Fed. 861. The same result was reached in United States v. Wil- son, 118 U. S. 86, 6 Sup. Ct. 993, under a provision of the Tennessee code giving the chancery court juris- diction over an action of ejectment. The practice in such cases is not to dismiss but to remand to the state court; Gombert v. Lyon, 80 Fed. 305. In Greeley v. Lowe, 155 U. S. 58, 75, 15 Sup. Ct. 24, 28, it is said that the federal courts will enforce a state statute allowing a party in or out of possession to sue to quiet title, pro- vided it does not infringe the consti- tutional right to a trial by jury. In Southern Pac. R. Co. v. Goodrich, 57 Fed. 879, it was held that the plaintiff must allege possession iiT himself or deny possession in defend- ant. It is not sufficient that it does not appear who is in possession. But see Union Pac. R. Co. v. Meier, 28 Fed. 9. In Morse v. Steinbach. 127 U. S. 70, 8 Sup. Ct. 1067, 1072, it was held that a failure to allege and prove possession is not fatal where the statute allows a party out of possession to maintain the bill. Like- wise, in Reynolds v. First Nat. Bank, 112 U. S. 410, 5 Sup. Ct. 212, 216, it was held that a federal court will allow a party either in or out of pos- session to maintain the suit. Appar- ently the defendant was in posses- sion, but the relief was allowed. In both of these cases, Holland v. Chal- len, 110 U. S. 15, 3 Sup. Ct. 495, was relied upon. As is shown in White- head v. Shattuck, 138 U. S. 146, 11 Sup. Ct. 276, the case of Holland v. Challen does not go to this extent. It applies simply where both plain- tiff and defendant are out of posses- sion. Hence both must be consid- ered as overruled, so far as they are contrary to the principles laid down above. Although a party be out of posses- sion, if equity alone can award the entire relief sought, and the right to possession arises only incidentally, the bill will be retained for complete relief and the right to possession de- termined. Thus, under the Burnt Records Act of Illinois, a federal court has taken jurisdiction of a bill by a party out of possession to re- store a destroyed record of title, and incidentally has decided the question of possession. Gormley v. Clark, 134 U. S. 338, 348, 10 Sup. Ct. 554. Like- wise, the bill has been retained when the plaintiff has sought to redeem from a fraudulent foreclosure; Hud- son v. Randolph, 66 Fed. 216, 23 U. S. App. 681, and to set aside fraudu- lent proceedings under which deeds were made; Sayers v. Burkhardt, 85 Fed. 246, 42 U. S. App. 742. Where the facts are such that ejectment 567 JUDICIAL INTERPRETATION OF JURISDICTION. 293 This legislation, it is held, has not affected the origi- will not lie, or plaintiff has no ade- quate remedy at law, equity should take jurisdiction: Stuart v. Union Pac. E. Co., 178 Ted. 753, 103 C. C. A. 89. Where neither party is in posses- sion and the land is unoccupied, the case is different. In such a case there can be no controversy at law respecting the title or right of pos- session, for an action of ejectment will lie only against a party in pos- session. Accordingly the federal courts will take jurisdiction and en- force the equitable right. Holland V. Challen, 110 U. S. 16, 3 Sup. Ct. 495. The reasons are well stated in a recent case: "As it appears that the defendant was not in possession of the lands, and that the plaintiff has no adequate remedy at law, and that the defendant is not deprived of the right of a trial by jury, there is no valid objection to the jurisdic- tion of the United States circuit coart"; Southern Pine Co. v. Hall, 105 Fed. 84, 44 C. C. A. 363. See, also, Dick v. Foraker, 155 U. S. 404, 415, 15 Sup. Ct. 124, 129; Eob- erts v. Northern Pac. R. R. Co., 158 U. S. 1, 30, 15 Sup. Ct. 756, 766 Davidson v. Calkins, 92 Fed. 230 Gordon v. Jackson, 72 Fed. 86; U. S, Min. Co. v. Lawson, 115 Fed. 1005 Grand Rapids, etc., R. Co. v. Spar row, 36 Fed.. 210, 211, 1 L. R. A. 482 Harding v. Guice, 80 Fed. 162, 42 U. S. App. 411. See, also, "Warren V. Oregon & Washington Realty Co., 156 Fed. 203; North Star Lumber Co. V. Johnson, 196 Fed. 56; Baum v. Longwell, 200 Fed. 450. In Blythe v. Hinckley, 84 Fed. 246, 256, it was held that the bill cannot be main- tained when a public administrator is in possession, although both the parties to the suit are out of posses- sion. Of course, where the statute expressly authorizes a suit when the land is vacant, the bill will be sus- tained; Bigplow v. Chatterton, 51 Fed. 614, 10 U. S. App. 267, 2 C. C. A. 402. The mere fact that the decisions of the state courts warrant the re- lief does . not authorize the federal courts to grant it. Thus, in Peck v. Ayers & Lord Tie Co., 116 Fed. 273, "It is not claimed that there is any statute in Tennessee which enlarges the principles of equity in this re- gard, but it is claimed that the de- cisions of the supreme court of the state respecting the right to file a bill to quiet title have established a different rule from that generally prevailing in the courts of the United States, and hold that posses- sion by the plaintiff is not necessary. But this is a mere variation of decision in respect of a principle of general equity, and we are not aware of any precedent for holding that the rule so established can be ad- mitted to change the doctrines of equity as recognized and applied in the federal courts." But see, contra. Lamb v. Farrell, 21 Fed. 5, 8. Statutory Creditors' Suits by Sim- ple Contract Creditors. — In some of the states statutes have been passed allowing simple contract creditors to maintain creditors' bills without the establishment of their claims at law. The supreme court has declined to enforce these statutes. In the lead- ing case of Scott v. Ne'oly, 140 U. S. 106, 11 Sup. Ct. 712, Justice Field said: "All actions which seek to re- cover specific property, real or per- sonal, with or without damages for its detention, or a money judgment §293 EQUITY JURISPRUDENCE. 568 nal equitable jurisdiction of the national courts sit- f or breach of a simple contract, or as damages for injury to person or prop- erty, are legal actions, and can be brought in the federal courts only on their law side. Demands of this kind do not lose their character as claims cognizable in the courts of the United States only on their law side, because in some state courts, by virtue of state legislation, equitable relief in aid of the demand at law may be sought in the same action. Such blending of remedies is not per- missible in the courts of the United States." Following this case, Mr. Chief Justice Fuller, in Gates v. Al- len, 149 U. S. 457, 13 Sup. Ct. 883, after pointing out that the right to maintain a creditor's bill is based upon a lien upon the property, said: "The fact that section 1845 aims to create a lien by the filing of the bill does not affect the question, for, in order to invoke equity interposition in the United States courts, the lien must exist at the time the bill is filed, and form its basis; and to al- low a lien resulting from the issue of process to constitute such ground would be to permit state legislation to withdraw all actions at law from the one court to the other, and unite legal and equitable claims in the same action, which cannot be allowed in the practice of the courts of the United States, in which the distinc- tion between law and equity is matter of substance, and not merely of form and procedure." To the same effect, see Smith v. Fort Scott, etc., E. E. Co., 99 U. S." 401; Mississippi Mills v. Cohn, 150 U. S. 202, 14 Sup. Ct. 76; Hollins v. Brierfield, etc.. Iron Co., 150 U. S. 371, 379, 14 Sup. Ct. 127, 128; Peacock, Hunt & West Co. V. Williams, 110 Fed. 917; United States v. Ingate, 48 Fed. 251; At- lanta, etc., E. Co. V. Western E. Co., 50 Fed. 790, 794, 2 U. S. App. 227, 1 C. C. A. 776; England v. Eus- sell, 71 Fed. 818, 821, 824; Childs v. N. B. Carlstein Co., 76 Fed. 86, 92, 95; Tompkins Co. v. Catawba Mills, 82 Fed. 780, 783; First Nat. Bank v. Prager, 91 Fed. 689, 692, 63 U. S. App. 709; Morrow Shoe Co. v. Now England Shoe Co., 60 Fed. 341, 24 L. R. A. 425, 18 U. S. App. 616, 8 C. C. A. 652; Jacobs v. Mexican Sugar Co., 130 Fed. 589. See. also, the recent cases: Davidson-Wesson Implement Co. v. Parlin & Orendorf Co., 141 Fed. 37, 72 C. C. A. 525; Mathews Slate Co. v. Mathews, 148 Fed. 490; Smith v. Lloyd, 207 Fed. 815. Likewise, a federal court has no jurisdiction over a proceeding for equitable attachment, although al- lowed under the state law. Hall v. Gambril, 92 Fed. 321, 63 U. S. App. 751, 34 C. C. A. 190. In Gates v. Allen, however, th«re is a vigorous dissenting opinion by Mr. Justice Brown, which seems to have much reason on its side (13 Sup. Ct. 977). He held that the statute creates a substantial right which the federal courts should enforce. "In this case the court of equity proceeds to establish the debt, not as a per- sonal judgment against the debtor, which may be sued upon in any other court, but for a purpose special to that ease, in order to reach property which has been fraudulently con- veyed, and to appropriate it to the payment of the debt. If the object of the proceeding were the establish- ment of a debt for all purposes, which should become res adjudicata in other proceedings, and be suable elsewhere as an established claim 569 JUDICIAL INTERPRETATION OF JURISDICTION. §293 ting in such states, nor interfered with their power to against the debtor, or were not a mere incident to the chancery juris- diction, I can understand why the constitutional provision might apply. But in this case I see no more reason for requiring a common-law action to establish the debt than in case of the foreclosure of a mortgage, or the enforcement of a mechanic's lien, where proof of an existing debt is equally necessary to warrant a de- cree." And referring to the stand taken by the majority, he said: "The logical consequence of the position assumed by the court in this case is that it is compelled to remand the case for a reason entirely outside the removal acts, and thus to deny to the removing party the benefit of the act." "I have never known of a fed- eral court admitting its inability to do justice between the parties, and remanding the case upon that ground." For earlier cases, sustain- ing the right to maintain the bill, see Flash v. Wilkerson, 22 Fed. 689, 691; Johnston v. Straus, 4 Hughes, 636, 26 Fed. .57, 67; Buford v. Holley, 28 Fed. 680. The effect of the supreme court decisions is to compel a non-resident creditor to resort to the state courts or else be placed at a disadvantage as compared with the resident credi- tors. Consequently some of the fed- eral courts are inclined to confine the decisions strictly, and upon any possible ground of distinction to al- low the bill. Thus, in Darragh v. H. Wetter Mfg. Co., 78 Fed. 7, 23 C. C. A. 609, a bill by a simple contract creditor to wind up a corporation was allowed, under a statute of Ar- kansas. In the well-considered case of Jones V. Mutual Fidelity Co., 123 Fed. 506 (Bradford, D. J.), jurisdic- tion was entertained, at the suit of simple contract creditors, of a bill under the Delaware statute for the appointment of a receiver to ad- minister the affairs of an insolvent corporation. It was held (p. 524), that the statute "created a substan- tial right of a purely equitable na- ture, and a purely equitable proce- dure to enforce it," and that the pursuit of and exhaustion of the legal remedy by an application of the assets of the insolvent corpora- tion to final process at law would be destructive of the right conferred by the statute. The decisions in Scott V. Neely, 140 U. S. 106, 35 L. Ed. 358, 11 Sup. Ct. 712, and Gates v. Allen, 149 U. S. 451, 37 L. Ed. 804, 13 Sup. Ct. 977, and dictum in Hol- lins v. Brierfield Coal & Iron Co., 150 V. S. 371, 37 L. Ed. 1113, 14 Sup. Ct. 127, were interpreted as refer- ring only to cases where the com- plainants pursue, ah initio, a purely equitable remedy for purpose merely of removing "some obstacle or diffi- culty in the way of the due and beneficial execution of the final pro- cess." In Hudson v. Wood, 119 Fed. 764, it was held that a creditor's hill brought by a simple contract credi- tor may be retained for a discovery and for the establishment of "the right to an equitable lien ('equitable levy,' as it is sometimes called) upon any indebtedness of his to the judgment debtors, such lien to be- come effective and to be enforced when such indebtedness, if denied, shall have been ascertained in an ac- tion at law." This rule at least has the merit of protecting the party who resorts to the federal courts from being postponed to those who resort to the state courts. By the §293 EQUITY JURISPRUDENCE. 570 entertain a suit for administration in a proper case.^ ^ § 293, 2 Pratt v. Northam, 5 Mason, 95, 105, per Story, J. laws of South Dakota, a fraudulent assignment acts as a trust for the benefit of all the creditors. Under this legislation a federal court has allowed a simple contract creditor to sue to enforce the trust: Wyman V. Mathews, 53 Fed. 678. In Crad- dock V. Fulton (C. C. W. Va.), 140 Fed. 426, it was held that a suit in equity authorized by the "West Vir- ginia statute, based on an attachment on the property of a non-resident, was removable to the federal court, and that such suit, being based on a legal lien acquired before the in- stitution of the suit in equity, did not offend against the rule of Scott V. Neely. Where a judgment would be use- less and the debt has been admitted, the bill has been sustained. Thus, in Talley v. Curtain, 54 Fed. 43, 8 U. S. App. 347, the debtor made a general assignment, in which complainant's debt was recognized. It was held that complainant, although he had not established his claim at law, might maintain a bill to set aside the assignment. §293, (b) Jurisdiction Over Ad- ministration of Estates of Decedents. This original jurisdiction of courts of equity in the administration of estates has been exercised by the United States courts in a very great number of cases. "As a part of the ancient and original jurisdiction of courts of equity, it is vested, by the constitution of the United States, and the laws of Congress in pursu- ance thereof, in the federal courts, to be administered by the circuit courts in controversies arising between citi- zens of different states. It is the fa- miliar and well-settled doctrine of this court that this jurisdiction is independent of that conferred by the states upon their own courts, and cannot be affected by any legislation except that of the United States. . , . The only qualification in the application of this principle is that the courts of the United States, in the exercise of their jurisdiction over the parties, cannot seize or control property while in the custody of a court of the state." Borer v. Chap- man, 119 U. S. 587, 600, 7 Sup. Ct. 342, 348. See, in addition to the cases cited infra, in this note, Green's Adm'r v. Creighton, 23 How. 90, 105, 16 L. Ed. 419, 423; Payne v. Hook, 7 Wall. 425, 430, 19 L. Ed. 262 (a leading case); Hess v. Reynolds, 113 U. S. 78, 5 Sup. Ct. 378; Arrow- smith V. Gleason, 129 U. S. 86. 98, 100, 9 Sup. Ct. 237, 241; Clark v. Bever, 139 U. S. 96, 103, 11 Sup. Ct. 468, 470; Johnson v. Powers. 139 U. S. 156, 157, 11 Sup. Ct. 525; Lau- rence v. Nelson, 143 U. S. 224, 12 Sup. Ct. 440, 443; Hayes v. Pratt, 147 U, S. 557, 570, 13 Sup. Ct. 503, 507; Ball v. Tompkins, 41 Fed. 486, 489 (a very clear statement) ; Semmes v. Whitney, 50 Fed. 666; Comstock V. Herron, 55 Fed. 803, 811, 6 U. S. App. 626; Martin v. Fort, 83 Fed. 19, 23, 54 U. S. App. 325; Davis v. Davis, 89 Fed. 532, 537; Hampton Lumber Co. v. Ward, 95 Fed. 3; Hale v. Tyler, 115 Fed. 833 (a most instructive opinion). The jurisdiction does not, however, extend to matters which were within the exclusive cognizance of the Eng- lish ecclesiastical courts, such as the probate of wills, the appointment of 571 JUDICIAL INTERPRETATION OF JURISDICTION. 294 § 294. Third Principle: Extent. — The third principle re- lates to the extent of the jurisdiction. While the equitable administrators, or the confirmation of executors. Ball v. Tompkins, 41 Fed. 489; Oakley v. Taylor, 64 Fed. 245, 246. The jurisdiction has been exercised in the following cases, among many others: Suits by creditors of the decedent to establish their claims: Hagan v. Walker, 14 How. 29, 33; Green's Adm'rs v. Creighton, 23 How. 90; Hess v. Eeynolds, 113 U. S. 78, 5 Sup. Ct. 378; Borer v. Chapman, 119 U. S. 587, 600, 7 Sup. Ct. 342, 348, 1 McCrary, 50, 51, 1 Fed. 274; Clark V. Bever, 139 U. S. 96, 103, 11 Sup. Ct. 468, 470 (to enforce de- ceased's liability as stockholder) ; Covington v. Burnes, 1 Dill. 17, Fed. Cas. No. 3,291; Fiske v. Gould, 11 Biss. 297, 12 Fed. 372, 374 (to reach partnership assets in hands of repre- sentatives); Terry v. Bank of Cape Fear, 20 Fed. 773, 775; Wiekham v. Hull, 60 Fed. 326, 330 (to establish claim against estate in possession of state probate court, but not to en- force the same); Hale v. Tyler, 115 Fed. 833 (to set aside a fraudulent conveyance by decedent. See, also, to the same effect, Connecticut Mut. Life Ins. Co. v. Schurmeier, 117 Minn. 473, Ann. Cas. 1913D, 462, 136 N. W. 1. The jurisdiction of the federal court in such cases cannot be ousted or impaired by any provision of a state law requiring creditors to ap- pear before a state court and present their claims within a limited time: Chewett v. Moran, 17 Fed. 820 (bill to subject real estate in the hands of heirs to the payment of debts, after administration has been closed) ; Johnston v. Eoe, 1 McCrary, 162, 1 Fed. 692 (same); Hartman v. Fishbeck, 18 Fed. 295, and note; Heaton v. Thatcher, 59 Fed. 731. See, to the effect that jurisdiction will not be taken to establish a purely legal demand in equity on the mere ground that the demand is against the estate of a deceased per- son. Walker v. Brown, 63 Fed. 204, 208-212; Bedford Quarries Co. v. Thomlinson, 95 Fed. 208, 36 C. C. A, 272; Thiol Detective Service Co. v. McClure, 130 Fed. 55. So, the peti- tion of an illegitimate child to estab- lish his statutory right to share in the estate presents a legal, not an equitable, issue; In re Foley, 70 Fed. 390. Suit for recovery of a legacy: Mayor v. Foulkrod, 4 Wash. C. C. 356, Fed. Cas. No. 9,341 (though ac- tion at law provided by state stat- ute); Pulliam V. Pulliam, 10 Fed. 23, 30 (although executor's accounts have been settled in state court) ; Brendel v. Charch, 82 Fed. 262. 263. See, also, Higgins v. Eaton, 183 Fed. 388, 105 C. C. A. 608. Suit by heirs to declare void a bequest to charity: Spencer v. Watkins, 169 Fed. 379, 94 C. C. A. 659. Suit to set aside a fraudulent distribution of the estate: Sullivan v. Andoe, 4 Hughes, 299, 6 Fed. 641, 650; as, where a distributee is fraudulently induced to accept less than his share of the estate; Payne V. Hook, 7 Wall. 430; Costello v. Cos- tello, 4 McCrary, 547, 14 Fed. 207, 209 (suit to remove cloud from title to personal property) ; or where a widow is fraudulently induced to elect to take a small annuity under the will, instead of her statutory es- tate: Eddy V. Eddy, 168 Fed. 590, 93 C. C. A. 586; Cowen v. Adams. 78 Fed. 536, 543, 47 U. S. App. 676; or §294 EQUITY JUEISPEUDENCE. 572 jurisdiction of the national courts is derived wholly from the United States constitution and statutes, it is identical where an administrator, by fraud and connivance, gives an unwar- ranted preference to the claims of certain creditors to the exclusion of others; Dodd v. Ghiselin, 27 Fed. 405, 410, by Brewer, J.; or to sur- charge and correct a settlement of accounts by administrators which has been confirmed by decree of the probate court; Bertha L. & M. Co. v. Vaughan, 88 Fed. 566, 571. Suit against an executor de son tort, for accounting and distribution, where there has been no administration upon the estate; Eich v. Bray, 37 Fed. 273, 2 L. R. A. 225. Suit for the construction of a probated will: Toms V. Owen, 52 Fed. 417; Colton v. Colton, 127 U. S. 301, 308, 8 Sup. Ct. 1164; Wood v. Paine, 66 Fed. 807. Suit by ward against guardian, set- ting aside orders of probate court: Hull V. Dills, 19 Fed. 658; Arrow- smith V. Gleason. 129 U. S. 86, 98, 100, 9 Sup. Ct. 237, 241. See, also, Pulver V. Leonard, 176 Fed. 586, a suit by the guardian of an incompe- tent against a former guardian. No Original Probate Jurisdiction. "It has never been a part of the function of courts of law or equity, by a proceeding having that especial purpose in view, either to establish or reject wills. This jurisdiction was committed exclusively to the ecclesi- astical courts in England, for which are substituted, with a jurisdiction extending to probate of wills of real estate, by the several states of the Union, courts of probate, variously styled probate, surrogate, or orphans' courts, not, however, exercising com- mon-law or chancery cognizance; and these courts have always enjoyed this jurisdiction exclusive of either courts of common law or equity, tending a field of business from which other courts were excluded by the very na- ture of their organization and pro- cedure." Oakley v. Taylor, 64 Fed. 246. The United States courts have no jurisdiction, by virtue of their general equity powers, to establish a will: In re Frazer, Fed. Cas. No. 5,068; In re Cilley, 58 Fed. 982, 984, 985, 989; Copeland v. Bruning, 72 Fed. 5, 8; In re Aspinwall's Estate, 83 Fed. 851; Cilley v. Patton, 62 Fed. 498; nor to set aside a will or the probate thereof: In re Broder- ick's Will, 21 Wall. 503, 22 L. Ed. 599; Fouverne v. New Orleans, 18 How. 470, 15 L. Ed. 399; Ellis v. Davis, 109 U. S. 498, 3 Sup. Ct. 327, 335, affirming 4 Woods, 11, Fed. Cas. No. 4,402; Oakley v. Taylor, 64 Fed. 245; Carran v. O'Calligan (C. C. A.), 125 Fed. 657, reviewing the cases; also, Stead v. Curtis, 191 Fed. 529. 112 C. C. A. 463; Goodrich v. Ferris, 145 Fed. 844; post, §913; contra, O'Callaghan v. O'Brien, 116 Fed. 934; nor to set aside letters of adminis- tration: Simmons v. Saul, 138 U. S. 439, 454, 460, 11 Sup. Ct. 369, 376; nor to prevent the probate of a will: Miller v. Weston, 199 Fed. 104, 119 C. C. A. 358. When, however, jurisdiction to set aside wills or the probate thereof has been vested by state statute in courts of equity, the federal court of equity, sitting in the state where such stat- ute exists, will also entertain such jurisdiction in a case between proper parties: Gaines v. Fuentes, 92 U. S. 10, 21, 23 L. Ed. 528; Williams v. Crabb, 117 Fed. 193, 59 L. R. A. 425, reviewing the authorities; Richard- son v. Green, 61 Fed. 423, 429, 15 573 JUDICIAL INTERPRETATION OF JURISDICTION. 294 or equivalent in extent with that possessed by the English high court of chancery at the time of the Revolution. The U. S. App. 488, 9 C. C. A. 565, 159 U. S. 264, 15 Sup. Ct. 1042; but see Eeed v. Reed, 31 Fed. 49, 53; Oakley V. Taylor, 64 Fed. 245 (holding that the statute in question provided merely a remedy by appeal, which could not be enforced by a federal court); Sawyer v. White, 122 Fed. 223 (statutory remedy of a legal na- ture, enforced by federal court on its law side). See, also, to the same effect, O'Callaghan v. O'Brien, 199 U. S. 89, 50 L. Ed. 101, 25 Sup. Ct. 727. So state statutes which treat a proceeding to establish a will, in certain cases, as one of equity and not of probate jurisdiction, may be enforced in a federal court of equity; see Southworth v. Adams, 9 Biss. 523, 524, 4 Fed. 1 (proceeding to es- tablish a lost will) ; Brodhead v. Shoemaker, 44 Fed. 518, 11 L. B. A. 569 (proceeding to probate will in "solemn form"). When Estate is in Custody of the State Court. — The limitation of the jurisdiction in administration mat- ters consequent upon the possession of the estate by the probate court presents some questions of difficulty. In Byers v. McAuley, 149 U. S. 616- 623, 13 Sup. Ct. 908-911, many of the previous cases in the supreme court are reviewed by Mr. Justice Brewer, who says, in part: "In or- der to pave the way to a clear under- standing of this question, it may be well to state some general proposi- tions which have become fully set- tled by the decisions of this court; and, first, it is a rule of general ap- plication that, where property is in the actual possession of one court of competent jurisdiction, such posses- sion cannot be disturbed by process out of another court. . . . Sec- ondly, an administrator appointed by a state court is an officer of that court. His possession of the dece- dent's property is a possession taken in obedience to the orders of that court. It is the possession of the court, and it is a possession which cannot be disturbed by any other court." The result of the discussion is thus summed up by the learned justice: "A citizen of another state may establish a debt against the es- tate (Yonley v. Lavender, 21 Wall. 276; Hess v. Reynolds, 113 U. S. 73, 5 Sup. Ct. 377); but the debt thus established must take its place and share of the estate as administered by the probate court, and it cannot be enforced by process directly against the property of the decedent (Yonley v. Lavender, supra). In like manner, a distributee, citizen of another state, may establish his right to a share in the estate, and en- force such adjudication against the administrator personally, or his sure- ties (Payne v. Hook, 7 Wall. 425), or against any other parties subject to liability (Borer v. Chapman, 119 U. S. 587, 7 Sup. Ct. 342), or in any other way which does not dis- turb the possession of the property by the state courts." In support of the general principle of Byers v. Mc- Auley, see Northrup v. Browne, 204 Fed. 224, 122 C. C. A. 496. The following acts have been held to constitute an interference on the part of the federal court with prop- erty in the possession of the probate court: An execution levied on such property: Williams v. Benedict, 8 How. 107, 112; Yonley v. Lavender, 21 Wall. 276; Wickham v. Hull. 60 §294 EQUITY JURISPRUDENCE, 574 judicial functions and powers of the English court of chan- cery are held to have been conferred en masse upon the national judiciary; but not the peculiar administrative functions held by the chancellor as representative of the Fed. 326, 330; appointing a receiver to displace the executor: Haines v. Carpenter, 1 "Woods, 269, 270, Fed. Cas. No. 5,905; Lant v. Manley, 71 Fed. 7, 12; Johnson v. Ford, 109 Fed. 501; appointing a receiver, where a petition for the appointment of ad- ministrators has already been filed in the state court: Smith v. Jennings, 238 Fed. 48, 151 C. C. A. 124; com- pelling an executor to turn over cer- tain property to an administrator: Watkins v. Eaton, 183 Fed. 384, 105 C. C. A. 604; compelling a surviving partner, who was one of the execu- tors of the deceased, to account and pay the amount found due to the executors for distribution, the pro- bate court having full jurisdiction to compel such accounting: Moore v. Fidelity Trust Co., 138 Fed. 1, 1008, 70 C. C. A. 663, affirming 134 Fed. 4S9; adjudging that certain claims should be placed on equality with others which, under the state law, were entitled to a preference: Dodd V. Ghiselin, 27 Fed. 405, 407-410 (Brewer, J.) ; setting aside a sale of trust property comprising the re- siduary estate, while the estate is in the process of administration, and before the executors have rendered any account: Jordan v. Taylor, 98 Fed. 643. See, also, In re Foley, 80 Fed. 951. The following acts have been held not to constitute an interference: Establishing a debt against the es- tate: Hess V. Eeynolds, 113 U. S. 78, 5 Sup. Ct. 378; Black v. Scott, 9 Fed. 186, 191; Wickham v. Hull, 60 Fed. 326, 330; Connecticut Mut. Life Ins. Co. v. Schurmeier, 117 Minn. 473, Ann. Cas. 1913D, 462, 136 N. W. 1, In Hess v. Eeynolds the court says, by Miller, J.: "It may be convenient that all debts to be paid out of the assets of a deceased man's estate shall be established in the court to which the law of the domi- cile has confided the general adminis- tration of these assets. And the courts of the United States will pay respect to this principle in the execu- tion of the process enforcing their judgments out of these assets, so far as the demands of justice require. But neither the principle of conveni- ence nor the statutes of a state can deprive them of jurisdiction to hear and determine a controversy between citizens of difi'erent states when such a controversy is distinctly presented, because the judgment may affect the administration or distribution in an- other forum of the assets of the de- cedent's estate." It appears that a lien upon specific property entitling the lien-holder to a special remedy is not impaired by the death of the owner, and such special remedy may be applied in proceedings against his executor or administrator in the fed- eral courts: German Sav, & Loan Soc. V. Cannon, 65 Fed. 542, 545; Erwin v. Lowry, 7 How. 172, 181; and see Lant v. Manley, 75 Fed. 627, 634, 43 U. S. App. 623. When suits by distributees do not constitute an interference: see Payne v. Hook, supra; Byers v. McAuley, supra; Brcndel v. Charch, 82 Fed. 262; also. Waterman v. Canal-Louisiana Bank & Trust Co., 215 U. S. 33, 54 575 JUDICIAL INTERPRETATION OF JURISDICTION. 294 crown in its character of parens patricE. These latter func- tions of the English chancellor have not been granted to the United States courts, but are given to the several states, and are exercised either by the state legislatures or by the L. Ed. 80, 30 Sup. Ct. 10 (to establish plaintiff's interest in an alleged lapsed legacy and in the residue of the estate); McClellan v. Garland, 217 U. S. 268, 54 L. Ed. 762, 30 Sup. Ct. 501, 187 Fed. 915, 110 C. C. A. 49 (to have plaintiff adjudicated heir of decedent, whose property has been administered, where all debts have been paid and the net proceeds were held by the administrator) ; Eddy v. Eddy, 168 Fed. 590, 93 C. C. A. 586 (to set aside widow's election as pro- cured by fraud, and to take an ac- count to determine the amount she was entitled to receive under the statutes of descent and distribu- tion); American Baptist Home Mis- sion Society v. Stewart, 192 Fed. 976. Establishing a lien on the in- terests of heirs at law in an estate in the hands of an administrator: In- gersoll v. Coram, 127 Fed. 418; In- gersoll V. Coram, 211 U. S, 335, 53 L, Ed. 208, 29 Sup. Ct. 92. Enfor- cing an assignment of a distributive share, the validity of which is con- troverted: Gatzert v. Lucey, 218 Fed. 395. In the following cases the property was held not to be in the custody of the probate court, and the limitation of the jurisdiction of the federal court, therefore, did not apply: Herschberger v. Blewett, 55 Fed. 170; Briggs v. Stroud, 58 Fed. 717, 720; where the assets have been dis- tributed; Borer v. Chapman, 119 U. S. 587, 600, 7 Sup. Ct. 342, 348; where they are in the hands of the committee of a lunatic; Sullivan v. Andoe, 4 Hughes, 299, 6 Fed. 641, 650; or of an executor in his capa- city as trustee; Ball v. Tompkins, 41 Fed. 489; Herron v. Comstock, 139 Fed. 370, 71 C. C. A. 466 (where nothing remains but the management and disposition of trust real estate, the federal court has jurisdiction to decree an accounting and final dis- tribution and settlement of the trust) ; where real property fraudu- lently conveyed by the decedent is sought to be reached, and the pro- bate court, though empowered by statute to take possession of it, baa not done so; Hale v. Tyler, 115 Fed. 833 (examining the cases with great thoroughness). In Ball v. Tompkins, supra, the court says, at page 490: "The possession contemplated as sufficient to make it exclusive is that which the court by its process, or some similar mode, has, either for the direct purpose of the proceeding, or for some other purpose ancillary to the main object, drawn into its do- minion and custody some thing. That thing may be corporeal or in- corporeal, — a substance or a mere right. But a controversy, a ques- tion, an inquiry, is not such a thing. These may be the subject-matter of jurisdiction in a pending cause, which often proceeds, from the be- ginning to the judgment, without the court's having taken actual do- minion of anything. But there is no exclusive jurisdiction over such a matter. The result may be a judg- ment which will establish a right, but the court has not had any pos- § 295 EQUITY JURISPBUDENCE. 576 state tribunals. The United States supreme court has fre- quently laid down and acted upon this principle in decid- ing cases brought for the purpose of enforcing charitable trusts.! ^ § 295. Fourth Principle: Inadequacy of Legal Remedies. The fourth principle also relates to the extent of the equi- table jurisdiction, as that is affected by the most important provision of the statute. ^ In the judicial interpretation of this clause, it has been well settled that the section of the statute is merely declaratory of a familiar doctrine § 294, 1 Bodley v. Taylor, 5 Cranch, 191, 221, 222 ; Fontain v. Ravenel, 17 How. 369, 384; Canal Co. v. Gordon, 6 Wall. 561, 568; Case of Broder- ick's Will, 21 Wall. 503; Noonan v. Lee, 2 Black, 499, 509; Loring v. Marsh, 2 Cliff. 469, 493; Livingston v. Van Ingen, 1 Paine, 45. In Fon- tain V. Ravenel, 17 How, 369, a suit to establish a charitable trust, Mr. Justice McLean stated the doctrine as follows: "The courts of the United States cannot exercise any equity powers except those conferred by acts of Congress, and those judicial powers which the high court of chancery in England, acting under its judicial capacity as a court of equity, possessed and exercised at the time of the formation of the constitution of the United States. Powers not judicial, exercised by the chancellor merely as the representative of the sovereign, and by virtue of the king's preroga- tive as parens patrice, are not possessed by the United States circuit courts." In Noonan v. Lee, 2 Black, 499, 509, Swayne, J., said: "Equity jurisdiction of the courts of the United States is derived from the con- stitution and laws of the United States. Their powers and rules of deci- sion are the same in all the states. Their practice is regulated by themselves and by rules established by the supreme court. In all these respects they are unaffected by state legislation;" citing Neves v. Scott, 13 How. 270; Boyle v. Turner, 6 Pet. 658; Robinson v. Campbell, 3 Wheat. 323. § 295, 1 1 refer to the United States Revised Statutes, section 723, being the same as section 16 of the Judiciary Act of 1789, quoted ante, in note under section 312. § 294, (a) See, also, Mormon to cancel a patent for fraud will not Church V. United States, 136 U. S. 1; be entertained, since in England the King v. McLean Asylum of Massa- power to cancel a patent was in the chusetts General Hospital, 64 Fed. nature of a royal prerogative; 331, 352, 26 L. E. A. 795, 21 U. S. United States v. American Bell Tele- App. 481 (C. C. A.). In absence of phone Co., 32 Fed. 591, 605, 606. statute, a bill bv the United States 577 JUDICIAL INTERPRETATION OF JURISDICTION. § 296 belonging to the general system of equity jurisdiction and jurisprudence. It does not take away or abridge the juris- diction which is affirmatively granted, nor deprive the United States courts of any part of the field of powers occupied by the English court of chancery so far as the functions of that tribunal are judicial. In short, this sec- tion does not substantially affect the equitable jurisdiction of the national courts; their powers would have been the same, and subject to the same limits, if the provision had not been enacted.^ § 296. Illustrations. — The four foregoing principles may be justly regarded, I think, as the very foundations of the equitable jurisdiction of the United States courts. They give it whatever peculiar character it possesses growing- out of the double organization of the national and state governments, and they clearly distinguish it from the juris- diction possessed by any state tribunals. In the practical administration of their equitable powers, the national judi- § 295, 2 Boyee's Executors v. Grundy, 3 Pet. 210, 215 ; Baker v. Biddle, 1 Bald. 394, 403; Barber v. Barber, 21 How. 582, 591; Hunt v. Dan- forth's Ex'rs, 2 Curt. 592, 603 ; Bunce v. Gallagher, 5 Blatchf . 481, 487. The doctrine of the text was clearly stated in Boyee's Executors v. Grundy, 3 Pet. 210, 215, by Johnson, J., and has been repeated by the subsequent cases: "This court has been often called upon to consider section 16 of the Judiciary Act of 1789, and as often, either expressly or by the course of its decisions, has held that it is merely declaratory, making no altera- tion whatsoever in the rules of equity on the subject of legal remedy. 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." * §295, (a.) In the recent case of existed when the .Judiciary Act of McConehay v. Wright, 121 U. S. 20', 1789 was adopted, unless subse- the supreme court of the United quently changed by Congress, and is States, again laid down the rule not the existing remedy in a state or that the test of the equity jurisdic- territory by virtue of local legisla- tion of the courts of the United tion. See, also, Payne v. Kansas & States, so far as the same was de- A. Val. R. R. Co., 46 Fed. 546; Rich- termined by the adequacy of the ardson v. Pennsylvania Coal Co., 203 remedy at law, is the remedy which Fed. 743. 1—37 § 296 EQUITY JURISPRUDENCE. 578 ciary have constantly affirmed and steadily adhered to the doctrine in its negative form, that the equitable jurisdic- tion does not exist, or will not be exercised, in any case or under any circumstances where there is an adequate^ complete, and certain remedy at law, sufficient to meet all the demands of justice.^ ^ I have collected and placed in the foot-note a number of examples which will sufficiently illustrate the uniformity and consistency with which the United States judiciary have applied this negative rule under a great variety of circumstances.^ § 296, 1 Thompson v. Railroad Co., 6 Wall. 134, 137; Parker v. Winni- piseogee, etc., Co., 2 Black, 545, 550; Knox v. Smith, 4 How. 298, 316; Wright V. Ellison, 1 Wall. 16, 22; Oelriehs v. Spain, 15 Wall. 211; Lewis V. Cocks, 23 Wall. 466, 470; Hungerford v. Sigerson, 20 How. 156; Hipp V. Babin, 19 How. 271; Baker v. Biddle, 1 Bald. 394, 405; Blakeley v. Biscoe, 1 Hempst. 114, 115; United States v. Meyers, 2 Brock. 516; Andrews v. Solomon, 1 Pet. C. C. 356; Shapley v. Rangeley, 1 Wood. & M. 213, 216, 2 Ware, 242; Pierpont v. Fowle, 2 Wood. & M. 23; Foster V. Swasey, 2 Wood. & M. 217. § 296, 2 It has thus been decided that the jurisdiction, if concurrent, does not exist, and if exclusive, will not be exercised, in the following eases: Not to try the mere legal title to lands, or to recover possession of lands when only the legal title is disputed: Mezes v. Greer, 1 McAll. 401, 402 ; • Hipp v. Babin, 19 How. 271 ; Lewis v. Cocks, 23 Wall. 466, 470 : *• nor for a breach of a simple contract of agency : Blakeley v. Biscoe, 1 Hempst. 114, 115; nor of suit by principal against his agent to recover for losses occasioned by the latter's negligence or misconduct: Vose v. Philbrook, 3 Story, 335, 344, 345; nor of suit by insurance companies to cancel a fire policy, and enjoin action at law thereon, on the ground of fraudulent representations in procuring the same, where the suit was brought after a loss : Home Ins. Co. v. Stanchfield, 1 Dill. 424, 429, 431- 438, 2 Abb. 1 ; *' whether the suit for a discovery has been abrogated by statutes making parties liable to be called as witnesses for their adver- § 296, (a) See, also, the following § 296, (b) See, also, Killian v. Eb- leading cases: Insurance Co. v. binghaus, 110 U. S. 568. Bailey, 13 Wall. 616, 620, 20 L. Ed. § 296, (c) See, also, Insurance Co. 501; Grand Chute v. Winegar, 15 v. Bailey, 13 Wall. 616, 20 L. Ed. Wall. 373, 21 L. Ed. 170; Buzard v. 501. If a defendant, an insurance Houston, 119 U. S. 347, 351, 30 L. Ed. company, has an adequate remedy at 451, 4 Sup. Ct. 249; Whitehead v. law by defense to an action on a Shattuck, 138 U. S. 151, 34 L. Ed, policy, and a right to a removal of 873, 11 Sup. Ct. 276. the action from a state to a federal 579 JUDICIAL INTERPEETATION OF JURISDICTION. § 297 §297. Effect of State Laws.— On the other hand, the affirmative form of the rule has also been uniformly as- serted and maintained, that the equitable jurisdiction exists and will be exercised in all cases, and under all circum- stances, where the remedy at law is not adequate, complete, and certain, so as to meet all the requirements of justice. That there is a legal remedy is not enough; such remedy, in order to oust or prevent the equitable jurisdiction, must saries: Home Ins. Co. v. Stanehfield, 1 Dill. 424, 429, 431^38, 2 Abb. 1; when suit will not be sustained to set aside a sale on ground of fraud: Andrews v. Solomon, 1 Pet. C. C. 356; Foster v. Swasey, 2 Wood. & M. 217; nor to recover on contract which has been entirely performed, ex- cejDt the payment of the money due thereon; and equity has no jurisdic- tion to compel municipal officers to levy a tax in order to provide a fund for the payment of such a contract: Heine v. Loan Commissioners, 19 Wall. 655, 1 Woods, 246; nor of a suit brought to enforce a decree in equity for the payment of money alone: Telford v. Oakley, 1 Hempst. 197; nor of a suit to declai'e the future rights which may arise under a will : Cross v. De Valle, 1 Wall. 1, 1 Cliff. 282 ; nor of a suit for a divorce or for alimony: Barber v. Barber, 21 How. 582, 584; nor of a suit to establish the probate of a will, nor to set aside the probate of a will on any gi'ound: Fouverne v. New Orleans, 18 How. 470, 473: nor of a suit to set aside a will or the probate thereof, on the gi'ound of forgery or of fraud; nor to declare the executor, or legatee, or devisee in such a will a trustee: Case of Broderick's Will, 21 Wall. 503; nor to maintain the "jDroceedings supplementary to execution," authorized by a state code of procedure, the proper equitable remedy being a "creditor's suit" : Byrd v. Badger, 1 McAU. 443, 444-446; when the jurisdiction will not be exer- cised in a case of private nuisance : Parker v. Winnipiseogee Co., 2 Black, 545, 550 ; nor to enjoin any suit pending in a state court : Rogers v. Cin- cinnati, 5 McLean, 337; nor to enjoin a sheriff under ordinary circum- stances from levying on and selling, under an execution against a third party, any property in which the plaintiff is interested, an action at law for damages being ample remedy: Knox v. Smith, 4 How. 29S, 316; nor to enforce a forfeiture : Horsburg v. Baker, 1 Pet. 232, 236 ; for limitations upon the jurisdiction of the national courts in enforcing vague and uncer- tain charities: See Fontain v. Ravenel, 17 How. 369, 384. court by reason of diverse citizen- quate as to afford an occasion for ship, the fact that such removal may the exercise, by a federal court, of subject it to a revocation of its li- equitable jurisdiction to cancel the cense to do business in the state does policy; Cable v. United States Life not render its legal remedy so inade- Ins. Co. (U. S.), 24 Sup. Ct. 74. § 297 EQUITY JUKISPRUDENCE. 580 be in all respects as satisfactory as the relief furnished by a court of equity. ^ ^ Not intending to re-examine the ques- tions concerning jurisdiction which have been discussed in the preceding chapters, I have merely collected and placed in the foot-note a few decided cases as examples, which will illustrate the manner in which the United States courts have applied the foregoing affirmative rule, and have exer- cised their equitable powers under a variety of circum- stances. 2 In order to prevent a misconception of the fore- § 297, 1 Pratt v. Northam, 5 Mason, 95, 105 ; Baker v. Biddle, 1 Bald. 394, 403^11 ; United States v. Meyers, 2 Brock. 516. In the case of Baker V. Biddle, 1 Bald. 394, 405, Baldwin, J., said : "It follows that wherever a court of law is competent to take cognizance of a right, and has power to proceed to a final judgment which affords a remedy plain, adequate, and complete, without the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right of trial by jury. If the right is only an equitable one, or if the right being legal, the remedy is only equitable, or both legal and equitable, partaking of the character of both, and a court of law is unable to afford a remedy according to its old and settled proceedings commensurate with the right, then the suit for its assertion may be in equity. . . . The tests of the relative jurisdic- tion over suits at law and in equity are, — 1. The subject-matter; 2. The relief; 3. Its application; 4. The competency of a court of law to afford it." The judgment of Mr. Justice Baldwin in this case is, in my opinion, one of the ablest, clearest, and most accurate statements of the true doc- trines concerning the equitable jurisdiction to be found in the whole range of reports, English and American. § 297, 2 The equitable jurisdiction has been held to exist and has been exercised in the following cases, on the ground that the legal remedy is inadequate: On behalf of the one having the equitable estate in land, to compel a conveyance to him of the legal estate: Bodley v. Taylor, 5 Crancb 191, 221, 222 ; in "creditors' suits" and suits similar thereto : Dunphy v. Kleinsmith, 11 Wall. 610, 614; Lorman v. Clark, 2 McLean, §297, (a) Cited, Mann v. Appel, Wall. 466, 470, 23 L. Ed. 70; Drexel 31 Fed. 378, 383, a creditors' bill. v. Berney, 122 U. S. 241, 252, 30 See, also, the following leading cases L. Ed. 1219, 7 Sup. Ct. 1200; Allen enunciating this principle: Boyce's v. Hanks, 136 U. S. 300, 311, 34 Ex'rs v. Grundy, 3 Pet. 210, 215, 9 L. Ed. 414, 10 Sup. Ct. 961; Kilbourn L. Ed. 127; Watson v. Sutherland, 5 v. Sunderland, 130 U. S. 505, 514, 9 Wall. 74, 78, 18 L. Ed. 580; Insur- Sup. Ct. 594; Rich v. Braxton, 158 ance Co. v. Bailey, 13 W^all. 616, 620, U. S. 375, 406, 39 L. Ed. 1022, 15 Sup. 20 L. Ed. 501; Lewis v. Cocks, 23 Ct. 1006. 581 JUDICIAL INTERPRETATION OF JURISDICTION. § 297 going rules concerning the equitable jurisdiction of the national courts, there is one limitation which must be con- stantly borne in mind. Since the original jurisdiction of the United States courts — especia-lly of the circuit courts — in large measure depends upon the state citizenship of the litigant parties as its sole basis, it follows that in solne cases of ordinary controversies — in all those which do not directly arise under statutes of Congress or provisions of the United States constitution — the subject-matter of the 568; Bean v. Smith, 2 Mason, 252, 267, 268; in suit to foreclose a mort- gage, even in a state where the common-law mortgage is not known : Walker v. Dreville, 12 Wall. 440; in a suit to enforce a lien created by statute, and to enforce liens generally: Canal Co. v. Gordon, 6 Wall. 5G1, 568; Heine v. Loan Com'rs, 19 Wall. 655, 1 Woods, 246;* to remove a cloud from title : Loring v. Dorner, 1 McAU. 360, 362-365 ; in an "admin- istration suit": Pratt v. Northam, 5 Mason, 95, 105; to enforce charitable trusts, so far as the same can be done by judicial action : Fontain v. Ravenel, 17 How. 369, 384; to regulate and control one railroad company in the construction of its tracks across those of another company, where the state legislation has not prescribed any manner: Chicago & N. W. R. R. V. Chicago & Pac. R. R., 6 Biss. 219, 221, 222; to carry into full effect the provisions of a bankrupt act passed by Congi-ess, and in mat- ters of accounting generally: Mitchell v. Great Works, etc., Mfg. Co., 2 Story, 648; in cases of fraud, misrepresentation, and concealment, to give the relief of cancellation, etc. : Jones v. Bolles, 9 Wall. 364, 369 ; in suit by insurance company brought before a loss to cancel a fire policy on the ground of fraud and its procurement: Home Ins. Co. v. Stanch- field, 1 Dill. 424, 429, 431-438, 2 Abb. 1; to set aside and cancel a written agreement on the ground of fraud: Boyce's Ex'rs v. Grundy, 3 Pet. 210, 215; when equity can give relief against a forged or fraudulent will which has been admitted to probate, to parties entitled to the estate: Case of Broderick's Will, 21 Wall. 503; to set aside a forged deed of land at the suit of the pretended grantor, although the deed is absolutely vojd: Bunce v. Gallagher, 5 Blatchf. 481, 487; citing Peirsoll v. Elliott, 6 Pet. 95; Hamilton v. Cummings, 1 Johns. Ch. 517; in a suit for a dis- covery and an accounting: Baker v. Biddle, 1 Bald. 394. 403-411; to re- cover amount due on a decree for alimony rendered by a state court in § 297, (b) This note and paragraph 334, holding that the enforcement of of the text are cited in Hibernia S. statutory liens is a matter of equity & L. Soc. V. London & Lancashire jurisdiction. Fire Ins. Co., 138 Cal. 257, 71 Pac. § 297 EQUITY JURISPRUDENCE. 582 suit, the primary rights, interests, or estates to be main- tained and protected, are created and regulated by state laws alone. While, therefore, it is correctly held that the equitable jurisdiction of the national courts, their power to entertain and decide equitable suits and to grant the remedies properly belonging to a court of equity, is wholly .derived from the constitution and laws of the United States, and is utterly unabridged by any state legislation, yet, on the other hand, the primary rights, interests, and estates which are dealt with in such suits and are protected by such remedies are within the scope of state authority, and may be altered, enlarged, or restricted by state laws.^ ^ The equitable jurisdiction of the national courts is not directly affected by the state statutes, but what may be a suit for divorce, where the husband had removed to another state: Barber v. Barber, 21 How. 582, 584, 591 ; to restrain a private nuisance : Parker v. Winnipiseogee, etc., Co., 2 Black, 545, 550-553; in a case of trust : United States v. Meyers, 2 Brock. 516 ; by a married woman against an executor to recover money given by the will to her separate use: Hunt v. Danforth, 2 Curt. 592, 603; by stockholders against a cor- poration and its managers to prevent or redress wrongful acts and deal- ings with corporate property and franchises: Pond v. Vermont Valley R. R,, 2 Blatchf. 280, 287; to enforce a payment of a judgment for money recovered at law against a municipal corporation which is wholly insolvent: Putnam v. New Albany, 4 Biss. 365; "to enforce by appropriate remedies any equitable rights which may be created by state laws : Clark V. Smith, 13 Pet. 195, 203. § 297, 3 As a familiar illustration of this proposition, I mention the statutes in many states modifying and reconstructing the whole subject of trusts in real and personal property, and creating the separate prop- erty of married women, and the like. While such state statutes do not abridge the jurisdiction of the national courts to entertain equitable suits concerning trusts or married women's property, they, of course, determine the rights growing out of these tinists or of the married women holding separate property. §297, (c) The text, and note 3, Beard, 83 Fed. 5, 13-16, and cases supra, are quoted or paraphrased in cited; Irvine v. Marshall, 20 How. the dissenting opinion in Tucker v. 565, 15 L. Ed. 998; Andrews Bros. Curtin, 148 Fed. 929, 78 C. C. A. 557, Co. v. Youngstown Coke Co., 39 Fed. reversing 131 Fed. 647. See, also, 353; Deek t. Whitman, 96 Fed. 873. Independent District of Fella v. 583 JUDICIAL INTERPRETATION OF JURISDICTION. § 298 finally accomplished by the exercise of that jurisdiction, what estates, property rights, and other interests of the litigants may be maintained, enforced, or enjoyed by its means, must depend to a great extent upon the policy of legislation adopted in each individual state. § 298. Territorial Limitations. — There is one other spe- cial feature of the jurisdiction which remains to be con- sidered, growing out of the peculiar organization of the national judiciary, and the restriction of the powers of each court within certain territorial limits or districts which are either coincident with or definite parts of the separate states, 1 This feature to which I refer is the locality of the subject-matter of the suit — its territorial position within a certain state or district — in its effect upon the jurisdic- tion. In respect to this matter, the following propositions have been established by repeated and unanimous deci- sions : Where the subject-matter of the suit is strictly local, the jurisdiction of the United States court depends upon such locality, and can only be exercised in the state where the subject-matter is situated; in other words, vdiere the subject-matter is local, and the suit is brought for the pur- pose of directly affecting or acting upon this subject-matter, and the decree when rendered and the relief when granted would operate directly upon such subject-matter, and not merely upon the person of the party defendant, then the situation of the subject-matter determines the proper place for the exercise of the jurisdiction; the jurisdiction can only be exercised in the state where such subject-matter is located.2 It follows as a necessary consequence that where § 298, 1 In most instances, a state constitutes a single judicial district of the United States. Some of the larger states, like New York, Penn- sylvania, Ohio, and others, are divided into two or more judicial dis- tricts. In no instance does a district embrace two states, or portions of different states. §298, 2 Miss. & Mo. R. R. v. Ward, 2 Black, 485; Massie v. Watts, 6 Cranch, 148 ; North. Indiana R. R. v. Mich. Cent. R. R., 15 How. 233, 5 McLean, 444; Tardy v. Morgan, 3 McLean, 358. These cases will § 298 EQUITY JURISPRUDENCE. 584 a court of the United States is sitting in one state, no de- cree which it renders can directly affect land situated in another state. On the other hand, although the subject- matter may be local, — as, for example, a tract of land, — still if the object of the suit is to directly deal with and affect the person of the defendant party, and not this subject-matter itself, and the decree when rendered and the relief when granted would in fact directly affect and oper- ate upon the person of the defendant only, and would not directly operate upon the subject-matter, then the suit may be maintained in any state or district where the court ob- tains jurisdiction of the person of the defendant, although the subject-matter of the controversy referred to and de- scribed in the decree, and ultimately but indirectly affected by the relief granted, may be situated in another state. Under this rule, it is well settled that equitable suits for the specific performance of contracts, for the enforcement of trusts, for relief on the ground of fraud, actual or con- structive, or for the final accounting and settlement of a partnership, are not local, although the land or other subject-matter may be situated in a state different from that in which the action is pending. Such a suit may be brought in any state where jurisdiction is obtained of the defendant's person. It should be carefully observed, how- ever, that a decree in such a suit directing a conveyance of the land under the contract, or in pursuance of the trust, or directing a sale or conveyance of the partnership land, sufficiently illustrate both the meaning of the rule and its application. In Miss. & Mo. R. R. v. Ward, 2 Black, 485, it was held that the United States circuit court in Illinois had no jurisdiction of a suit brought, to abate a nuisance which was situated across the Mississippi River, within the territory of Iowa. In Massie v. Watts, 6 Cranch, 148, it was held that a suit on behalf of the one holding the equitable estate in certain land to compel a conveyance to him of the legal title is thus local, and can only be maintained in the state where the land is situated. In North. Indiana R. R. v. Mich. Cent. R. R., 15 How. 233, a suit brousht in Michigan, directly dealing with the title and ownership of a railroad situated in Indiana, was dismissed for want of jurisdiction. 585 JUDICIAL INTERPEETATION OF JURISDICTION". § 298 or a transfer of the estate affected by the fraud, only binds and operates upon the person of the defendant; it is not of itself a muniment of title, and does not of itself transfer any title; it can only be carried into effect by an actual conveyance executed by the defendant; and the execution of such conveyance can only be compelled by proper pro- ceedings directed against the defendant personally, such as attachment, fine, and imprisonment. ^ I have thus de- scribed the distinctive elements of the jurisdiction held by the United States courts, and proceed to consider the several states as they may be arranged in a few groups § 298, 3 Massie v. Watts, 6 Cranch, 148 ; Watkins v. Holman, 16 Pet. 25, 26; Briggs v. French, 1 Sum. 504; Lyman v. Lyman, 2 Paine, 11, 13; Carrington's Heirs v. Brents, 1 McLean, 167; Watts v. Waddle, 1 Mc- Lean, 200; Tardy v. Morgan, 3 McLean, 358. In Massie v. Watts, 6 Cranch, 148, the supreme court held that while a suit by the equitable owner of land to compel a conveyance of the legal estate is local, and can only be brought in the state where the land is situated, a suit on contract, or trust, or fraud is not thus local. Watkins v. Holman, 16 Pet. 25, is a leading authority. It decided that a United States court in one state may by its decree order the conveyance of land in another state, and the decree may be enforced against the defendant personally. But the decree itself does not operate on the land nor on the title, nor does any conveyance made under the decree by an officer, nor by any one else other than the very person himself in whom the title to the land is vested. In Briggs v. French, 1 Sum. 504, the same rule was applied by Story, J., to cases of fraud, either actual or constructive. In Lyman v. Lyman, 2 Paine, 11, the rule was applied to a suit for the settlement of a partnership and a sale of firm lands situated in another state. In Tardy v. Morgan, 3 McLean, 358, the same rule was reaffii-med, and it was further held that the conveyance made by the defendant in pursu- ance of the decree operates under the deed of conveyance itself, and not under the decree merely.** § 298, (a) See, also, Montgomery tained to restrain the prosecution of V. United States, 36 Fed. 4, a case a suit in another state. This para- of the specific performance of a con- graph of the text is cited in Banco tract for the sale of land outside the Minero v. Ross (Tex. Civ. App.), 138 state; and Hart v. Sansom, 110 U. S. S. W. 224. The subject is further 155, 3 Sup. Ct. 586; Cole v. Cunning- considered in Pom. Eq. Rem., Intro- ham, 133 U. S. 107, 10 Sup. Ct. 269. duction. In the latter case, a suit was sus- § 299 EQUITY JURISPRUDENCE. 586 or classes, and take first in order the class in which the jurisdiction is or has been wholly statutory, special, and restricted. § 299. New Hampshire — General Extent and Nature. — The statute quoted in the preceding section,^ while it par- ticularly mentions several important specific heads of equity jurisprudence and equitable cognizance, also con- tains in its general clauses a very broad and comprehen- sive grant of equity jurisdiction. The courts of New Hampshire have given a very liberal interpretation to this enactment. Unlike the courts of Massachusetts, they have not regarded the language '*in all other cases where there is not a plain, adequate, and complete remedy at law" as restrictive, or as imposing any new and statutory limita- tion upon the jurisdiction otherwise belonging to the court of chancery; but, following the example of the United States courts in dealing with a similar provision of the Judiciary Act, they have treated the clause as merely de- claratory of the well-known principle which forms an essential element of the general equitable jurisdiction as exercised in England and throughout this country. In fact, according to the conclusions reached by the court after a careful historical examination, it seems to be decided that the equitable jurisdiction now possessed by the New Hamp- shire courts is not derived from this statute ; that it existed to its full extent during the colonial period, and has never been abrogated or abandoned ; and that the provisions now contained in the Revised Statutes of the state, which were adopted in 1832, instead of being the original source of the equitable powers, are simply regulative and limiting in their effect. The practical conclusion to be derived from a comparison of the leading decisions is, that with respect to the heads of equitable cognizance enumerated in the statute, and with respect to the matters embraced in the broader and more general grant of authority, the courts § 299, 1 See ante, note under § 286. 587 JUDICIAL INTERPEETATION OF JURISDICTION. § 299 of New Hampshire possess the full equitable jurisdiction, equal in all respects to that exercised by the high court of chancery in England, so far as it has power to deal with the same subject-matter. As the statute, like some por- tions of the United States constitution, enumerates, rather than describes, the courts, in their liberal mode of inter- pretation, have held that their jurisdiction includes all the incidental and auxiliary details, powers, and remedies be- longing to the general system of equity jurisprudence, and reasonably necessary to render their principal functions effective in the due administration of justice according to the methods and usages of equity; and that this jurisdic- tion has not been restricted, abridged, or modified, because the courts of law may have obtained the concurrent power to grant similar remedies which in some cases may be re- garded as adequate. 2 In other words, while the equitable § 299, 2 Wells v. Pierce, 27 N. H. 503, 512 (1853) ; Walker v. Cheevcr, 35 N". H. 339, 349; Bean v. Coleman, 44 N. H. 539, 547; Samuel v. Wiley, 50 N. H. 353, 354, 355 ; Craft v. Thompson, 51 N. H. 536, 542. Since the discussion in several of these cases is very able, and since the conclu- sions reached will apply in other states as well as in New Hampshire, and will aid in determining the extent of their equitable jurisdiction, I shall quote some instructive passages from one or two of these opinions. The case of Wells v. Pierce, 27 N. H. 503, is especially interesting. The historical review by Mr. Justice Bell might doubtless throw much light upon the equitable system in others of the older states. I quote from his opinion, at page 512 : "This court has a broad jurisdiction as a court of equity in all cases of trust, fraud, accident, or mistake. The limits of its jurisdiction in these cases are co-extensive with those of the court of chancery and other courts of equity in England. Equity, as a great branch of the law of their native country, was brought over by the colonists, and has always existed as a part of the common law, in its broadest sense, in New Hampshire. While our territory was under the colonial government of Massachusetts, there is reason to believe that the general court exercised original chancery jurisdiction: Wash. Jud. Hist, of Mass. 34; Ann. Charters of Mass. 94. Under the first royal governor of this province, Robert Mann was appointed chancellor of the province, and among the early records are to be found bills in equity which were heard and decided before him : 1 Belk. Hist. 198, 200. In 1692, by 'An act for establishing courts of judicature,' it was provided that 'there § 299 EQUITY JURISPRUDENCE. 588 jurisdiction of New Hampshire is not in its extent actually commensurate with that of the English court of chancery, yet so far as it does extend, and with respect to all matters embraced within its scope, it is identical with the jurisdic- tion held by any court of general equitable powers. Hav- ing thus shown the liberal spirit in which the courts of New Hampshire have interpreted the statutes, and their tendency to maintain and enlarge their own equitable powers, and the comprehensive equitable jurisdiction which they possess, I shall now describe, in a very brief and sum- mary manner, the practical results which have been reached by applying this mode of interpretation to the most impor- tant subjects of equitable cognizance. It will appear that a complete system of equity jurisprudence has been de- veloped within the limits which fix the extent of the equi- table jurisdiction. shall be a court of chancery within this province, which said court shall have power to hear and determine all matters of equity, and shall be es- teemed and accounted the high court of chancery of this province; that the governor and council be the said high court of chancery,' etc. It is not known that this law was ever repealed, and it is supposed that the governor and council, who composed the court of appeals, continued to exercise chancery powers till the Revolution. . . . Equity having thus always constituted a part of the law of New Hampshire, though there was a long period after the Revolution when there was no chancery court, and the jurisdiction conferred on this court in 1832 being as broad as equity itself, the question whether this court will lose its jurisdiction because there is adequate remedy at law is to be decided here as it would be in England. If courts of equity had jurisdiction in certain cases for which the ordinary proceedings at common law did not then afford an adequate remedy, that jurisdiction will not be lost because authority to decide in such cases has been conferred on courts of law by statute, unless there are negative words excluding the juris- diction of courts of equity. ... It is well known that equitable relief can be but very imperfectly obtained in courts of law, because the power of those courts and their modes of practice are ill adapted for that pur- pose. On the investigation of all questions of fraud, the discovery by the oath of the party is one of the effectual means for its detection. The common law affords no means of obtaining such discovery, and the recent statutory enactments [in New Hampshire] are but an untried 589 JUDICIAL INTERPRETATION OF JURISDICTION. § 300 § 300. Specific Performance. — The courts of New Hamp- shire possess the full power to decree the specific perform- ance of executory contracts, whenever^ according to the doctrines of equity jurisprudence, such remedy is or may be granted, without any exception or limitation, i The jurisdiction includes, in its fullest extent, the specific en- forcement of verbal contracts for the purchase and sale of lands, either where the agreement is admitted by the defendant in his pleading, or where a part performance has taken the case out from the operation of the statute of frauds. The interpretation put upon their statutes by the courts of Massachusetts and of Maine, whereby the power to enforce the specific performance of such verbal contracts experiment which may fall much short of the discovery in chancery." Walker v. Cheever, 35 N. H. 339, 349, per Eastman, J.: "Whatever doubts may have been entertained heretofore, we regard it as now set- tled that this court, as a court of equity, has full chancery powers, and a general equity jurisdiction : Wells v. Pierce, 27 N. H. 503 ; and that it will administer relief in all cases falling within equity jurisdiction, where the statutes of the state have not provided other means of redress." The court further held that the objection that there was an adequate remedy at law would not apply to the case, since it is a well- established principle that the equitable jurisdiction once existing will not be lost or ousted because the courts of law have adopted equitable principles and give relief under circumstances which formerly belonged to the domain of equity alone. Craft v. Thompson, 51 N. H. 536, 542, per Foster, J.: "The jurisdiction of a court of equity, especially under the statute, is very comprehensive, and in all cases of fraud, mistake, or accident, courts of equity may, in virtue of their general jurisdiction, interfere to set aside awards, upon the same principles and reasons which justify their interference in regard to other matters where there is no adequate remedy at law. And this court may, by statute, 'grant writs of injunction whenever the same is necessary to prevent fraud or injus- tice': Gen. Stats., chap. 190, § 1." § 300, 1 Newton v. Swazey, 8 N. H. 9, 11 ; Tilton v. Tilton, 9 N. H. 385, 389 ; Powers v. Hale, 25 N. H. 145 ; Pickering v. Pickering, 38 N. H. 400, 407; Bunton v. Smith, 40 N. H. 352; Eastman v. Plumer, 46 N. H. 464, 478; Chartier v. Marshall, 51 N. H. 400; Ewins v. Gordon, 4S N. H. 444. § 301 EQUITY JURISPRUDENCE. 590 has been denied, is expressly rejected. 2 In administering this remedy the courts have adopted all the settled rules of equity which govern its use, admitting all of the equitable limitations and defenses which are really meant by the ordinary language which describes it as " discretionary. " 3 § 301. Mortgage, Foreclosure, and Redemption. — As the statute in express terms gives jurisdiction in cases "of the redemption and foreclosure of mortgages," no question could arise as to the existence of a full power to grant these remedies under all circumstances of equitable cogni- zance. It is decided, however, that this grant of equitable jurisdiction in cases of redemption has not repealed by implication a prior statute passed in 1829, by which it is provided that if the mortgagee should be in quiet posses- sion of the mortgaged premises for one year after condi- tion broken, without payment or lawful tender of the debt within that time, the mortgagor should be thereby forever barred and foreclosed of his right to redeem. This statu- tory foreclosure or bar is not abrogated by the right of redemption by means of a suit in equity. ^ A suit in equity may be maintained to redeem a pledge, if an accounting § 300, 2 Newton v. Swazey, 8 N. H. 9, 11 ; Tilton v. Tilton, 9 N. H. 385, 389 ; Bunton v. Smith, 40 N. H. 352. In Tilton v. Tilton, 9 N. H. 385, Wilcox, J., said: "It is no objection to the power of a court of equity to decree a specific performance, that the contract is proved only by parol testimony. Cases in Massachusetts and Maine are not in point on this subject, as they rest upon the peculiar provisions of their stat- utes conferring chancery powers. This court has the power to decree the specific performance of contracts generally without qualification; and it is a reasonable construction that our powers on this subject conform substantially to the practice of courts of chanceiy in England, so far as that practice may be applicable to our condition." § 300 3 Powers v. Hale, 25 N. H. 145 ; Pickering v. Pickering, 38 N. H. 400, 407; Eastman v. Plumer, 46 N. H. 464, 478; Chartier v. Marshall, 51 N. H. 400. In Ewins v. Gordon, 49 N. H. 444, a unilateral contract in the form of a penal bond for the conveyance of land was enforced. § 301, 1 Wendell v. New Hampshire Bank, 9 N. H. 404, 416. 591 JUDICIAL INTERPRETATION OF JURISDICTION. § 302 is necessary to ascertain tlie amount due, or there lias been an assignment of the pledge. 2 §302. Discovery. — The statute mentions cases "of dis- covery, where discovery may be had according to the course of proceedings in equity." The earlier decisions plainly admit a discovery, in suits brought both for discovery and relief, as a source of jurisdiction, or rather, perhaps, as an aid to the exercise of the jurisdiction in cases where the subject-matter, such as fraud, is of itself one of equitable cognizance. The more recent decisions leave no doubt that the so-called ''American rule," formerly adopted in some of the states, whereby a discovery is regarded as an inde- pendent ground of a concurrent jurisdiction to adjudicate upon purely legal rights and to grant purely legal remedies in cases not otherwise belonging to the equitable jurisdic- tion, is rejected by the courts of New Hampshire. ^ The § 301, 2 White Mts. R. R. v. Bay State Iron Co., 50 N. H. 57 (1870). § 302, 1 Tappan v. Evans, 11 N. H. 311, 325 ; Stevens v. Williams, 12 N. H. 246; Stone v. Anderson, 26 N. H. 506, 518; Miller v. Scammon, 52 N. H. 609, 610 (1873). In the first three of these cases the suit was for a discovery and relief, and the discovery was held proper, and even the jurisdiction of the court was spoken of as partly, at least, based on the discovery. But in each case the relief was sought on the gTound of fraud, and the jurisdiction was expressly held to exist independently of any discovery. In the latest case of Miller v. Scammon, 52 N. H. 609, 610, which was also one of fraud, Foster, J., after stating the gen- eral jurisdiction of equity in cases of fraud, added : "And it is said that in some cases of fraud for which the common law affords complete and adequate relief, chancery may have concurrent jurisdiction. This gen- eral proposition, however, is too broad when applied to our practice, under the rules of evidence which permit and require parties to testify. In the English practice, and perhaps in some American states, equity may entertain this concurrent jurisdiction, because, although the remedy at law may be said to be adequate, the means of obtaining the truth, where discovery by the oath of the party is essential, may be wanting or deficient in the courts of common law. . . . But to a very great extent the right to enforce discovery and search the conscience of the party, which was formerly only to be had in chancery, is afforded in the prac- tice and by the statutes of our law courts as fully and effectually as § 303 EQUITY JURISPRUDENCE. 592 suit for a discovery proper witliout any relief, in aid of an action or defense at law, seems to be admitted, altliough the decisions are not very explicit.^ * § 303. Fraud, Cancellation, Rescission, and Other Reme- dies.a — The general equitable jurisdiction in cases of fraud, and the power to grant a cancellation, a rescission, an in- junction, an accounting, or any other kind of remedy, neces- sary, under the circumstances, to attain the ends of justice, are asserted in the most emphatic manner.^ I have placed in the foot-note some illustrations of the manner in which this branch of the jurisdiction has been exercised, and of the remedies which have been granted.^ by a court of equity." This opinion fully sustains the conclusions reached by me in the text of a former paragraph, concerning the effect of the modern statutes upon the doctrine respecting discovery as an inde- pendent source of jurisdiction. See ante, § 230. § 302, 2 Stevens v. Williams, 12 F. H. 246; Dennis v. Riley, 21 N. H. 50; Robinson v. Wheeler, 51 N. H. 384. In Stevens v. Williams, 12 N. H. 246, which was a bill for discovery and relief, the court expressly declined to discuss the question whether a suit for a discovery alone in aid of an action or defense at law was within the jurisdiction. But in the two other cases cited, the propriety of such a suit is admitted, by judicial dicta at least. § 303, 1 Dodge v. Griswold, 8 N. H. 425 ; Tappan v. Evans, 11 N. H. 311, 325; Stevens v. Williams, 12 N. H. 246; Rand v. Redington, 13 N. H. 72, 76, 38 Am. Dec. 475; Brewer v. Hyndman, 18 N. H. 9, 17; Tracy v. Herrick, 25 N. H. 381, 394; Stone v. Anderson, 26 N. H. 506, 518 ; Wells v. Pierce, 27 N. H. 503, 512 ; Lyme v. Allen, 51 N. H. 242 ; Craft V. Thompson, 51 N. H. 536, 542 ; Miller v. Scammon, 52 N. H. 609, 610; Marston v. Durgin, 54 N. H. 347, 374; Gordon v. Gordon, 55 N. H. 399 ; Moore v. Kidder, 55 N. H. 488 ; Hathaway v. Noble, 55 N. H. 508. § 303, 2 Remedy of cancellation in general : Tappan v. Evans, 11 N. H. 311, 325 ; Stone v, Anderson, 26 N. H. 506, 518 ; setting aside or canccl- § 302, (a) That an action for dis- Atl. 1075, where the right of inspec- covery, without relief, is permissible tion of personal property belonging in New Hampshire was determined to the defendant, in aid of an action in the very interesting and impor- for a personal tort, was enforced, tant case of Eeynolds v. Burgess Sul- § 303, (a) This paragraph is cited phite Fiber Co., 71 N. H. 332, 93 in Druon v. Sullivan, 66 Vt. 609, 30 Am. St. Bep. 535^ 57 L. E. A. 949, 51 Atl. 98. [)'J3 JUDICIAL INTERPRETATION OF JURISDICTION. § 304 § 304. Mistake: Reformation, and Other Remedies. — Tlie jurisdictiou over all cases of mistake which are mat- ters of equitable cognizance, and to grant all the appro- priate remedies therein, is asserted in the same broad and mirestricted terms as that over cases of fraud. ^ The equi- table doctrines concerning the reformation of written in- struments on account of mistake are fully accepted. The American rule which permits parol evidence of such a mis- take on behalf of the plaintiff who seeks to reform an agree- ment and then to compel its specific performance as thus reformed, as well as on behalf of the defendant who seeks to defeat its performance by proving a mistake, is also adopted.2 The remedy of rescission may also be granted; as, for example, where an award is set aside on account ing a deed fraudulent as against creditors ; Dodge v. Griswold, 8 N. H. 425 ; setting aside an award on the ground of fraud : Rand v. Redington, 13 N. H. 72, 77, 38 Am. Dec. 475; Tracy v. Herrick, 25 N. H. 381, 394; Craft V. Thompson, 51 N. H. 536, 542; setting aside a fraudulent mort- gage; Brewer v. Hyndman, 18 N. H. 9, 11; setting aside a decree of a probate court obtained through fraud : Gordon v. Gordon, 55 N. H. 399 ; injunction to restrain commission of fraud : Marston v. Durgin, 54 N. H. 347, 374; injunction against a judgment at law obtained by fraud, or to which there was a defense of fraud : Lyme v. Allen, 51 N. H. 242 ; Craft V. Thompson, 51 N. H. 536, 542; suit in aid of a proceeding at law to prevent a party from fraudulently transferring his property so as to defeat the collection of a judgment to be recovered against him: Moore V. Kidder, 55 N. H. 488; delay and laches of the defrauded party, their effect upon his right to relief against the fraud: Hathaway v. Noble, 55 N. H. 508. § 304, 1 Rand v. Redington, 13 N. H. 72, 76, 38 Am. Dec. 475 ; Bellows V. Stone, 14 N. H. 175; Smith v. Greeley, 14 N. H. 378; UnderAvood v. Campbell, 14 N. H. 393; Craig v. Kittredge, 23 N. H. 231; Tracy v. ITorrick, 25 N. H. 381, 394; Wells v. Pierce, 27 N". H. 503, 512; Busby V. Littlcfield, 31 N. H. 193, 199, 33 N. H. 76; Avery v. Bowman, 40 N. II. 453, 77 Am. Dec. 728; Craft v. Thompson, 51 N. H. 536, 542; Bradford V. Bradford, 54 N. H. 463. § 304, 2 Bellows v. Stone, 14 N. H. 175 (parol evidence on behalf of tlie plaintiff in case of reformation and specific performance, as well as on part of the defendant); Smith v. Greeley, 14 N. H. 378; Busby v. Littlefield, 31 N. H. 193, 199, 33 N. H. 76 ; Bradford v. Bradford, 54 N. H. 463 (when a reformation will not be granted). 1—38 §§305,306 EQUITY JURISPRUDENCE. 594 of mistake. 3 Other reliefs may be given, depending upon the special circmnstances of the case.* § 305. Trusts. — Jurisdiction is expressly given by the statute in cases of trust as well as of fraud and mistake. This embraces, it has been held, not merely the general power to enforce the performance of a trust against the trustee at the suit of the beneficiary, but all the incidental and auxiliary powers and remedies which may be neces- sary to maintain and protect the rights of all the parties interested; as, for example, the removal of trustees, the appointment of trustees, the interpretation and construc- tion of instruments creating a trust, the direction and man- agement of trustees in the performance of their duties, the supervision of investments of trust property, and other like incidents.! § 306. Accounting. — Althougli this remedy is not speci- fically mentioned in the statute, the jurisdiction to compel an accounting and to settle accounts exists, and is exer- cised by the courts, under the regulations, restrictions, and limitations governing its use, which form a part of equity jurisprudence.! §304, 3 Rand v. Redington, 13 N. H. 72, 76, 38 Am. Dec. 475; Tracy V. Herrick, 25 N. H. 381, 394; Craft v. Thompson, 51 N. H. 536, 542. § 304, 4 Avery v. Bowman, 40 N. H. 453, 77 Am. Dec. 728. A mistake was made in levying an execution by which a too large amount of land was taken and transferred to the execution creditor. Such mistake may be corrected by a decree compelling the creditor to reconvey the excess to the judgment debtor. §305, 1 Wells V. Pierce, 27 N. H. 503, 512; Wheeler v, Perry, 18 N. H. 307, 311 (construction of the trust, aiding and directing the trus- tee, in the management of the trust property) ; Petition of Baptist Church, 51 N. H. 424 (same as the last) ; Methodist Epis. Soc. v. Heirs of Harriman, 54 N. H. 444, 445 (charitable trusts, direction of invest- ments, etc.) ; but under this general power over trusts, the courts of New Hampshire do not possess the jurisdiction to entertain the "administra- tion suit" under ordinary circumstances: Walker v, Cheever, 35 N. H. 339, 349. § 306, 1 Walker v. Cheever, 35 N. H. 339, 349 (will not exercise the jurisdiction when the account is all on one side, and no discovery is 595 JUDICIAL INTERPRETATION OF JURISDICTION. §§307,308 § 307. Injunction. — The statute expressly authorizes an injunction ''whenever tlie same is necessary to prevent fraud and injustice." The jurisdiction has been exercised in a very careful and guarded manner, and the courts have shown a tendency to restrict rather than to enlarge its use.^ Where the facts and circumstances are sufficient, and the remedy at law is inadequate, it may be granted to restrain a private nuisance,^ to prevent waste, ^ to restrain a tres- pass when it is continuous or would produce irreparable injuiy,^ and to stay an action, judgment, or execution at law.^ An injunction may also be proper in a suit by stock- holders to restrain the managing officers of a corporation from improper dealings with the corporate property and franchises,^ but there is no jurisdiction of equity to restrain the collection of a tax illegally assessed and laid."^ § 308. Nuisance and Waste. — The statute expressly men- tions these heads in its enumeration of powers. The su- preme court, while asserting the full equitable jurisdiction to restrain or abate nuisances of all kinds, has exercised it with great caution, and has evidently preferred to leave the injured party to his legal remedy wherever that was asked) ; Treadwell v. Brown, 41 N. H. 12 (accounting and settlement of a partnership at suit of a creditor of one individual partner) ; Dennett V. Dennett, 43 N. H. 499, 501, 503 (account of waste) ; White Mts. R. R. V. Bay State Iron Co., 50 N. H. 57 (accounting in suit to redeem a pledge). § 307, 1 Marston v. Durgin, 54 N. H. 347, 374; B. & M. R. R. v. P. & D. R. R., 57 N. H. 200; Webber v. Gage, 39 N. H. 182. § 307, 2 Coe V. Winnipiseogee M. Co., 37 N. H. 254; Webber v. Gage, 39 N. H. 182; Burnham v. Kempton, 44 N. H. 78, 79, 92; Eastman v. Amoskeag M. Co., 47 N. H. 71, 78; Bassett v. Salisbury M. Co., 47 N. H. 426, 437. § 307, 3 Dennett v. Dennett, 43 N. H. 499, 501, 503. § 307, 4 Hodgman v. Richards, 45 N. H. 28. § 307, 5 Ilibbard v. Eastman, 47 N. H. 507, 508, 93 Am. Dec. 467 ; Lyme v. Allen, 51 N. H. 242; Robinson v. Wheeler, 51 N. H. 384; Craft V. Thompson, 51 N. H. 536, 542. . § 307, 6 March v. Eastern R. R., 40 N. H. 548, 567, 77 Am. Dec. 732. § 307, 7 Brown v. Concord, 56 N. H. 375. Si 309, 310 EQUITY JURISPRUDENCE. 596 at all practicable.^ The same is true concerning waste ^ and trespass.^ J § 309. Creditor's Suit. — The statute in express terms permits the "creditor's suit" by a judgment creditor whose legal remedies have been exhausted. The supreme court has sustained the full equitable jurisdiction on behalf of the judgment creditor to reach the equitable rights and estates of the debtor, or assets not subject to lev^^ by execu- tion or attachment, or property fraudulently assigned and transferred ; and has even held that jurisdiction exists inde- pendently of the express statutory grant.i § 310. Other Special Cases. — In addition to the forego- ing general heads of equitable cognizance, the jurisdiction has been asserted or exercised in the following cases: To remove a cloud from title by setting aside a deed of land ;i in a suit for the partition of real estate ;2 for the estab- lishment of a widow's dower right and the assignment of her dower ;3 to define and limit a right of way and to regu- late its use ;4 in a suit by stockholders against the corpora- tion and its managers to prevent or redress any improper dealings with the corporate property or franchises;^ in a suit for an accounting and settlement of partnership mat- ters ;6 to order the arrest of a party to a suit who is in- § 308, 1 Coe V. Winnipiseogee M. Co., 37 N. H. 254; Webber v. Gage, 39 N. H. 182; Burnliam v. Kempton, 44 N. H. 78, 79, 92; Eastman v. Amoskeag M. Co., 47 N. H. 71, 78; Bassett v. Salisbury M. Co., 47 N. H. 426, 437. The discussion of the doctrine in some of these cases is very elaborate and able. § 308, 2 Dennett v. Dennett, 43 N. H. 499, 501, 503. § 308, 3 Hodgman v. Richards, 45 N. H. 28. §309, IBay State Iron Co. v. Goodall, 39 N. H. 223, 230; Sheafe v. Sheafe, 40 N. H. 516, 518 ; Treadwell v. Brown, 44 N. H. 551. § 310, 1 Downing v. Wherrin, 19 N. H. 9, 91, 49 Am. Dec. 139. § 310, 2 Whitten v. Whitten, 36 N. H. 326, 332. § 310, 3 Norris v. Morrison, 45 N. H. 490. § 310, 4 Bean v. Coleman, 44 N. H. 539, 547. § 310, 5 March v. Eastern R. R., 40 N. H. 548, 567, 77 Am. Dec. 732. § 310, 6 Treadwell v. Brown, 41 N. H. 12. 597 JUDICIAL INTERPRETATION OF JURISDICTION. § 311 tending to leave the state for the purpose of avoiding the decree which will be rendered therein.*^ On the other hand, it is held that a court of equity in New Hampshire does not possess jurisdiction to entertain a suit for the administra- tion and settlement of a decedent's estate, that subject hav- ing been intrusted to the courts of probate ;^ nor the juris- diction to restrain the collection of a tax illegally assessed.^ §311. Massachusetts: General Extent and Nature — The Statutory Construction. — The courts of Massachusetts origi- nally possessed the narrowest possible equitable jurisdic- tion; and the legislation successively enlarging the scope of their equitable powers has, until within a few years past, been very gradual and exceedingly cautious. The earliest statute of 1798, chapter 77, conferred an authority only in cases of foreclosure or redemption of mortgages. In the Laws of 1817, chapter 87, the legislature gave to the su- preme court jurisdiction in equity over ''all cases of trust arising under deeds, wills, or in the settlement of estates, and all cases of contract in writing, where a party claims the specific performance of the same, and in which there may not be a plain, adequate, and complete remedy at law." Other statutes were passed, and additional powers were given, enlarged, or modified in the Revised Statutes of 1830, and in 1851, 1853, 1855, 1857, and 1858, until the various provisions were completed which are collected and con- densed in chapter 113, section 2, of the Revised Statutes of 1873, quoted in the preceding section. ^ Finally, by the Laws of 1877, chapter 178, the last subdivision of said chapter 113, section 2, of the Revised Statutes, which reads, *'And shall have fully equity jurisdiction according to the usage and practice of courts of equity, in all other cases where there is not a plain, adequate, and complete remedy at law," was repealed, and instead thereof was substituted § 310, 7 Samuel v. Wiley, 50 N. H. 353-355. § 310, 8 Walker v. Cheever, 35 N. H. 339, 349. § 310, 9 Brown v. Concord, 56 N. H. 375. § 311, 1 See ante, in note under § 286. § 312 EQUITY JURISPRUDENCE. 598 the following most comprehensive provision: **The su- preme judicial court shall have jurisdiction in equity of all cases and matters of equity cognizable under the general principles of equity jurisprudence; and in respect of all such cases and matters shall be a court of general equity jurisdiction." § 312. The language of this last enactment seems to be as strong, in its grant of powers, as any which could pos- sibly be used. There can be no reasonable doubt that under it a complete equitable jurisdiction commensurate in its nature and extent with that held by the English court of chancery is conferred upon the supreme judicial court, — a jurisdiction absolutely unrestricted and unlimited save by the principles inherent in the system of equity jurispru- dence itself,^ and except, perhaps, with respect to some par- ticular matters, by positive mandatory provisions of other statutes of the state.i The supreme judicial court is now a tribunal of general equitable powers and functions. It seems to be wholly unnecessary, therefore, to examine the course of past decision and the judicial interpretation put upon the prior series of statutes for the purpose of ascer- taining the amount of equitable jurisdiction at present established in Massachusetts. The act of 1877 has swept away the results of more than a half-century of careful judicial labor. It is very important, however, to examine this course of past decision, and to state in a summary manner the interpretation given to the prior statutes, in order to show the value of the decisions themselves — many § 312, 1 As an illustration of my meaning, it may very well be held, as it is in many other states, that, notwithstanding this sweeping grant of a general equitable jurisdiction, the ordinary jurisdiction over admin- istrations and the settlement of decedents' estates is exclusively given by other statutes to the courts of probate. § 312, (a) So held in numerous re- in Massachusetts) ; Niles v. Graham, cent cases. See Parker v. Simpson, 181 Mass. 41, 62 N. E. 986; Gorgam 180 Mass. 334, 62 N. E. 401 (a full v. Pope (Mass.), 69 N. E. 343. historical review of the jurisdiction 599 JUDICIAL INTERPRETATION OF JURISDICTION. § 313 of them most able, elaborate, and learned — as precedents, to discover their probable bearing upon the future develop- ment of equity within the state, and to understand their relations with the general system of equitable jurisdiction and jurisprudence throughout the entire country. Unless the methods of interpretation and of dealing with their equitable powers pursued by the Massachusetts judges were described, and the restrictive effects necessarily pro- duced by the former legislation were explained, many of these decisions would be exceedingly misleading as authori- ties upon the powers and doctrines of equity in other states. I purpose, therefore, to exhibit, in a very condensed and summary form, the course and results of the judicial in- terpretation put upon the prior statutory grants of juris- diction. § 313. a The following single principle lies at the basis of and explains this entire course of interpretation, and separates the decisions made in it from the equitable sys- tem prevailing in any other state except Maine. It has been constantly asserted that the courts of Massachusetts possess no inherent equitable functions and authority what- soever, but are, in their original creation and endowment, purely common-law tribunals ; that all the equitable powers which they hold are those conferred by the express terms of some statute; that all these statutory grants have been coupled with the condition that such powers shall only exist in cases where there is no plain, adequate, and certain remedy at law, and this clause, instead of being merely formal, is the very test and criterion of the jurisdiction, limiting and restricting it on all sides, and applying not simply to the remedies known to the ancient common-law system of procedure, but to those legal remedies from time to time created and furnished by the state legislation. In giving effect to the statutes, the strictest mode of interpre- §313, (a) This paragraph of the R. I. 126, 27 Am. St. Rep. 728, 12 text is cited in Moulton v. Smith, 16 Atl. 891. § 313 EQUITY JURISPRUDENCE. 600 tation has been uniformly adopted. In following out tho policy assumed to have been intended by the legislature, it has been settled that the courts took no powers nor jurisdic- tion over' any equitable right or to administer any equitable remedy, except those plainly permitted by the express and positive language of the statutes; and that this language could never be enlarged by judicial construction, so as to include and confer by implication any authority which was not thus expressly mentioned in the terms used by the legis- lature. This restrictive method of interpretation has been pursued without any exception, and has sometimes pro- duced very strange results. Over all these express grants extends the clause limiting their operation to cases in which there is no adequate remedy at law. In dealing with this clause the courts have followed a course directly opposed to that adopted by the national judiciary, and have given the strongest effect to its restrictive words. As a neces- sary result of this judicial action, the equitable jurisdiction and jurisprudence of Massachusetts have been fragmentary in form, and curtailed and limited in every portion and with respect to every kind of subject-matter, unlike the equitable system prevailing in England or in most of the other states. 1 This peculiar character will doubtless be changed in the future. To the general description thus given of the jurisdiction as it depended upon the former statutes, I shall add very briefly the results which have been reached with respect to some of the most important subject-matters of equitable cognizance. § 313, 1 The following cases are given as examples of the mode of interpretation, and illustrations of the principle described in the text, selected from several important heads of the equitable jurisprudence: Kelleran v. Brown, 4 Mass. 443 (equitable itiortgage) ; Dwight v. Pome- roy, 17 Mass. 302, 324, 327, 9 Am'. Dec. 148, per Parker, C. J. (specific performance of contract) ; Putnam v. Putnam, 4 Pick. 139-141, per Parker, C. J. (bill of revivor to redeem a mortgage) ; Black v. Black, 4 Pick. 234, 236, per Parker, C. J. (implied or constructive trust) ; Jones V. Boston Mill Corp'n, 4 Pick. 507, 509, 511, 512, per Parker, C. J. (specific performance of an award) ; Hunt v. Maynard, 6 Pick. 489 (re- 601 JUDICIAL INTERPKETATION OF JURISDICTION. § 314 § 314. Specific Performance. — The power to decree the specific execution of written contracts was given by an early statute, and the provisions contained in the revision of 1873, quoted in the preceding section, confer this par- ticular jurisdiction in ample terms. The courts have there- fore had no difficulty in decreeing the specific execution of written contracts in accordance with the settled doctrines deeming a mortgage) ; Campbell v, Sheldon, 13 Pick. 8 (lost deeds and trusts created by foreign wills) ; Dimmock v. Bixby, 20 Pick. 368, 372 (assignment for the benefit of creditors) ; Wright v. Dame, 22 Pick. 55, 60, per Wilde, J. (implied trust) ; Eaton v. Green, 22 Pick. 526, 529, 531, per Wilde, J. (equitable mortgage) ; Whitney v. Stearns, 11 Met. 319 (fraud and trust) ; Clarke v. Sibley, 13 Met. 210 (equitable mortgage or lien) ; Parker v. May, 5 Cush. 336, 341 (charitable trusts) ; Jacobs v. Peterborough, etc., R. R. Co., 8 Cush. 223, 225 (specific performance of a verbal contract for the sale of land) ; Bowditch v. Banuelos, 1 Gray, 220, 228, per Shaw, C. J. (trusts arising from a deed) ; Harvard Coll. v. Society for Promoting Theol. Education, 3 Gray, 280, 282, per Dewey, J. (charitable trusts); Treadwell v. Cordis, 5 Gray, 341, 348, per Shaw, C. J. (construction of a will with trusts) ; Old Colony R. R. Co. v. Evans, 6 Gray, 25, 30, per Dewey, J. (specific performance of a contract) ; San- born V. Sanborn, 7 Gray, 142 (specific performance of a verbal contract for the sale of land) ; Miller v. Goodwin, 8 Gray, 542 (specific perform- ance against heirs and administrator of deceased vendor) ; CamiDbell v. Wallace, 10 Gray, 162, 163, per Thomas, J. (trusts created by a foreign will) ; Buck v. Dowley, 16 Gray, 555, 557, per Chapman, J. (specific per- formance of a verbal contract, and enforcement of parol trusts) ; BroAvn v. Evans, 6 Allen, 333, 336, per Merrick, J. (specific enforcement of an award) ; Drury v. Inhabitants of Natick, 10 Allen, 169, 175 (charitable trusts); Jackson v. Phillips, 14 Allen, 539, 593 (charitable trusts); Bas- sett v. Brown, 100 Mass. 355 (no jurisdiction at suit of defrauded grantor to set aside a conveyance of land obtained by fraud) ; Carlton v. City of Salem, 103 Mass. 141 (suit by taxable inhabitants to restrain municipal officers from illegal acts) ; Suter v. Matthews, 115 Mass. 253 (no concurrent jurisdiction in equity over cases of fraud Avhere there is an adequate remedy at law) ; Jones v. Newhall, 115 Mass. 244, 247, 15 Am. Eep. 97, per Wells, J. (no jurisdiction to compel the specific per- formance of a contract at a suit of the vendor when the only substantial relief would be the recovery of the purchase price, the remedy at law being held adequate) ; Frue v. Loring, 120 Mass. 507 (no jurisdiction to recover an amount of money alleged to be due in consequence of an im- plied trust, the remedy af law being adequate). I have purposely ar- § 314 EQUITY JURISPRUDENCE. G02 of equity jurisprudence between the original parties,^ and in favor of an assignee of the vendee against the vendor,^ and in favor of the heirs and administrator of a deceased vendee, or against the heirs and administrator of a de- ceased vendor.^ The jurisdiction did not, however, include the specific execution of awards,^ nor of verbal contracts for the sale of land on the ground of part performance. ^ In one of the recent cases it was held, after a very elaborate examination of the legislative system and policy, that there was no jurisdiction to decree the specific performance of a contract on behalf of the vendor when the only substantial relief to be obtained was the payment of the purchase- money by the vendee.^ ranged these cases in the order of their dates, rather than according to their subject-matters, so that the method of interpretation running through them might be the more clearly shown. It will be seen that in the very latest ones of the series, decided after the powers of the court had been so much enlarged by successive statutes, the principle of inter- pretation concei-ning the equitable jurisdiction stated in the text was asserted with even greater emphasis than in the earlier cases. § 314, 1 Dwight V. Pomeroy, 17 Mass. 302, 327, 9 Am. Dec. 148 ; Salis- bury V. Bigelow, 20 Pick. 174 ; Hilliard v. Allen, 4 Cush. 532, 535 ; Old Colony R. R. Co. v. Evans, 6 Gray, 25, 30, 66 Am. Dec. 394; Boston & Me. R. R. V. Bartlett, 10 Gray, 384. § 314, 2 Currier v. Howard, 14 Gray, 511. § 314, 3 Reed v. Whitney, 7 Gray, 533 ; Miller v. Goodwin, 8 Gray, 542; Davis v. Pope, 12 Gray, 193, 197; Bell v. City of Boston, 101 Mass. 506, 511. §314, 4 Jones v. Boston Mill Corp'n, 4 Pick. 507, 512; Brown v. Evans, 6 Allen, 333, 336; Howe v. Nickerson, 14 Allen, 400, 406. § 314, 5 This ruling was placed upon the ground that the express terms of the statute only mentioned written contracts; and the court refused to exercise any enlarged powers by implication from other heads of the statutory jurisdiction: Dwight v. Pomeroy, 17 Mass. 302, 9 Am. Dec. 148; Jacobs v. Peterborough, etc., R. R., 8 Cush. 223, 225; Sanborn v. Sanborn, 7 Gray, 142 ; Buck v. Dowley, 16 Gray, 555, 557. § 314, 6 Jones v. Newhall, 115 Mass. 244. In this opinion the statu- tory restriction to cases where there is no adequate remedy at law was applied with great stringency and in a very general manner. And there is no jurisdiction to compel the specific performance by the vendee of an agreement to purchase certain stocks : Noyes v. Marsh, 123 Mass. 286 ; 603 JUDICIAL INTERPRETATION OF JURISDICTION. § 315 § 315. Trusts.— The statute of 1817 gave power to the supreme court to determine in equity ''all cases of trust arising under deeds, wills, or in the settlement of estates." This language was afterwards enlarged into the provision contained in the revision of 1873, quoted in the preceding section: ''Suits and proceedings for the enforcing and regulating the execution of trusts, whether the trusts relate to real or personal estate." Under the first of these stat- utes the equitable powers of the courts were exceedingly- narrow. They held that their jurisdiction embraced only trusts expressly created by the terms of a will or deed, and they refused to extend it by implication to resulting, con- structive, and implied trusts, or even to those created by foreign wills. ^ By the second form of the statute, the jurisdiction over this subject was, of course, greatly en- larged. It embraced not only cases of ordinary express trusts created by the terms of a deed or will, but assign- ments for the benefit of creditors, charitable trusts, and resulting, implied, or constructive trusts, as recognized by the doctrines of equity jurisprudence. The court exercised a power to compel the due performance of a trust at the suit of the beneficiary, and to give construction to an in- strument creating a trust, and to define the nature of a trust, and direct the trustees in the discharge of their fidu- ciary duties, and to appoint trustees. But still the juris- diction was held not to be commensurate in its extent with that general power over trusts belonging to the unlimited system of equity jurisprudence, and possessed by the Eng- lish court of chancery. The statutorj^ grant was restricted by the clause confining its operation to cases where there citing Thomdike v. Locke, 98 Mass. 340; Somerby v. Buntin, 118 Mass. 279, 287, 19 Am. Eep. 459; Jones v. Newhall, 115 Mass. 244; nor to en- force an agi'eement to submit matters to arbitration : Pearl v. Harris, 121 Mass. 390. § 315, 1 Black v. Black, 4 Pick. 234, 236 (implied and resulting trusts) ; Hunt V. Maynard, 6 Pick. 489 (no trust created by a mortgage in favor of the mortgagor) ; Campbell v. Sheldon, 13 Pick. 8 (tmst created by a I'oreign will). § 316 EQUITY JURISPKUDENCE. 604 was no adequate remedy at law. The Massachusetts courts liave therefore denied the existence of an equitable juris- diction even in cases of trust, where the substantial relief would be the payment of money due under a trust relation, which could be recovered by an action at law for money had and received.^ § 316. Mortgages. — The earliest grant of an equitable jurisdiction, continued in the General Laws of 1873, pro- vides merely for the redemption and foreclosure of mort- gages, although a later statute adds ** cases of the convey- § 315, 2 Dimmoek v. Bixby, 20 Pick. 368, 372 (assignment for the benefit of creditors); Wright v. Dame, 22 Pick. 55; National Mahaiwc Bank v. Barry, 125 Mass. 20 (implied trust) ; Parker v. May, 5 Cush. 336; Harvard College v. Society for Theological Education, 3 Gray, 280, 282 ; Drury v. Inhabitants of Natiek, 10 Allen, 169 ; Jackson v. Phillips, 14 Allen, 539, 593 (charitable trusts) ; Sears v. Hardy, 120 Mass. 524 (resulting trust). The following are cases of express trusts under a deed or will, or of the construction of a will creating trusts : First Con- gregational Society v. Trustees, etc., 23 Pick. 148; Hooper v. Hooper, 9 Cush. 122, 127; Bowditeh v. Banuelos, 1 Gray, 220, 228, per Shaw, C. J.; Treadwell v. Cordis, 5 Gray, 341, 348; Russell v. Loring, 3 Allen, 121, 125, per Dewey, J. But under this statutory grant it was held that there was no jurisdiction over a case of fraudulent conversance of his land by a debtor on the ground of a resulting or constructive trust aris- ing therefrom in favor of the defrauded creditors : Whitney v. Stearns, 11 Met. 319 ; nor a jurisdiction to enforce a mere equitable lien or mort- gage on the ground of an implied trust: Clarke v. Sibley, 13 Met. 210; nor to enforce performance of an express trust created by a foreign will: Campbell v. Wallace, 10 Gray, 162, 163; nor to enforce a parol trust: Buck v. Dowley, 16 Gray, 555, 557. Finally, in Fi-ue v. Loring, 120 Mass. 507, the court decided that there was no equitable jurisdiction to recover an amount of money, where the liability gi'ew out of a trust or trust relation, since the legal remedy by action for money had and received was adequate. Under its general jurisdiction over trusts the court may appoint a trustee, although no express provision for an ap- pointment is made by the statute, nor is contained in the instiiiment creating the trust: In re Eastern R. R., 120 Mass. 412; citing Bowditeh V. Banuelos, 1 Gray, 220, 228; Bailey v. Kilbum, 10 Met. 176, 43 Am. Dec. 423 ; Winslow v. Cummings, 3 Cush. 358 ; Felch v. Hooper, 119 Mass. 52; Parker v. Parker, 118 Mass. 110; Ellis v. Boston, H. & E. R. R., 107 Mass. 1; and see also Attorney-General v. Barbour, 121 Mass. 568. (305 JUDICIAL INTERPRETATION OF JURISDICTION. § 317 ance or transfer of real estate in the nature of mortgage." It Las been decided that the former of these clauses is con- fined in its operation to mortgage deeds by which the legal estate is conveyed to the mortgagee according to the common-law theory; and the court has repeatedly denied the existence, by implication from this or other statutory grants, of any jurisdiction to enforce or redeem equitable mortgages or equitable liens. ^ Of the power to redeem or to foreclose legal mortgages, there was no question. 2 This narrow jurisdiction has, beyond a doubt, been enlarged by the later enactment above mentioned. Thus it is held that the court may, in a proper equitable suit for that purpose, declare a deed of land absolute on its face to be a mortgage, and decree a redemption and reconveyance. ^ § 317. Creditors' Suits. — The power to aid creditors in reaching the property of their debtors is given by the stat- ute in very broad terms. In addition to the ordinary § 316, 1 Kclleran v. Brown, 4 Mass. 443, 444, per Parsons, C. J. ; Eaton V. Green, 22 Pick. 526, 529, per Wilde, J. ; Clarke v. Sibley, 13 Met. 210, 214, per Wilde, J. § 316, 2 Saunders v. Frost, 5 Pick. 259, 267, 16 Am. Dec. 394, per Parker, C. J. ; Boyden v. Partridge, 2 Gray, 190 (suit to redeem a mort- gage and to set aside a release of the equity of redemption obtained by fraud) ; Shaw v. Norfolk Co. R. R., 5 Gray, 162, 182 (foreclosure of a railroad mortgage) ; Putnam v. Putnam, 4 Pick. 139, 140, per Parker, C. J. (redeeming a mortgage by a bill of revivor). In King v. Bronson, 122 Mass. 122, the jurisdiction to set aside a sale of the mortgaged premises made under a power of sale contained in the mortgage, and to redeem, was fully admitted, but the relief was refused on the facts. Where a mortgage is given to secure an indebtedness arising from an agi-eement illegal, as being in violation of the bankrupt law and in fraud of other creditors, the mortgage itself is also tainted with the illegality, and the mortgagee can maintain no suit to redeem a prior mortgage : Blasdel v. Fowle, 120 Mass, 447, 21 Am. Rep. 533. With respect to the foreclosure and redemption of mortgages of personal property under the Massachusetts statutes, see Burtis v. Bradford, 122 Mass. 129, 131; Bushnell v. Avery, 121 Mass. 148; Boston, etc.. Iron Works V. Montag-ue, 108 Mass. 248. § 316, 3 Hassam v. Barritt, 115 Mass. 256. The relief was refused on the facts, but the jurisdiction was fully admitted. § 318 EQUITY JURISPRUDENCE. 606 "creditors' suits" by judgment creditors whose executions have been returned unsatisfied, for the purpose of reach- ing equitable assets or impeaching fraudulent transfers, it is held that a suit may be maintained by a creditor to reach any property, interest, or right, legal or equitable, of his debtor, which cannot be come at so as to be attached or taken on execution, even though the complainant has not exhausted his legal remedies, nor put his demand into the form of a judgment.^ § 318. Fraud. — For a considerable time there was no statutory grant of any jurisdiction expressly on the ground of fraud; but subsequently the provision was adopted in § 317, 1 Bresnihan v. Sheehan, 125 Mass. 11 (1878). A wife secretly accumulated her husband's wages placed in her hands for safe-keeping, and used tlie amount, with other money of her own, in the purchase of a piece of land, taking the title in her own name. Held, that the hus- band had an equitable interest in the land, and a creditor could maintain the suit described in the text. Colt, J., said: "A creditor may maintain a bill in equity to reach any property, right, title, or interest, legal or equitable, of the debtor which cannot be come at to be attached or taken on execution. He may thus reach the equitable assets of his debtor without having exhausted his remedies at law or reduced his claim to a judgment"; citing Tucker v. McDonald, 105 Mass. 423. With respect to "creditors' suits," ordinarily so called, Trow v. Lovett, 122 Mass. 571, decides that a judgment creditor who has not issued an execution does not by filing a creditor's bill under the statute of 1875 (General Laws, quoted in preceding section), to reach land fraudulently conveyed by his debtor, acquire a lien thereon. In Massachusetts a judgment does not create a lien on land. To create an eqxiitable lien upon land of the debtor fraudulently transferred, the creditor must exhaust his legal remedies, or must at least issue an execution: Wiggin v. Heywood, 118 Mass. 514; the same rule as that laid down in Beck v. Burdett, 1 Paige, 305, 19 Am. Dec. 436 ; Crippen v. Hudson, 13 N. Y. 161 ; Jones v. Green, 1 Wall. 330. In Massachusetts, land conveyed away by a debtor in fraud of his creditors can be attached and taken on execution. Prior to the act of 1875, above mentioned, this was the only mode of reaching such prop- erty, and there was no jurisdiction to maintain a suit in equity, on behalf of a creditor, to enforce his demand against the lands: Taylor v. Robinson, 7 Allen, 253 ; Mill River Ass'n v. Claflin, 9 Allen, 101. 607 JUDICIAL INTERPRETATION OF JURISDICTION. § 318 broad terms, which is now found in the General Laws of 1873, namely, "cases of fraud." Prior to this statute, the courts unifonnly denied the existence of an authority to administer equitable rights or remedies directly growing out of fraud, and they only dealt with fraud as it arose in- cidentally in cases belonging to some other head of equi- table jurisdiction.! Full jurisdiction was undoubtedly given by the subsequent statute in ''cases of fraud"; but the qualifications stated in a former paragraph concerning "trusts" will apply to it with equal force. The exercise of the jurisdiction has been limited by the clause so often, quoted, and the courts have, until quite recently, shown a strong tendency to confine it within narrow bounds. ^ § 318, 1 Boyden v. Partridge, 2 Gray, 190. And see other cases cited ante, in note under § 313 ; Woodman v. Saltonstall, 7 Gush. 181 ; Thayer V. Smith, 9 Met. 469. §318, 2 Jurisdiction denied: Bassett v. Brown, 100 Mass, 355; Suter V. Matthews, 115 Mass. 253 ; White v. Thayer, 121 Mass. 226, 228 ; citing Boardman v. Jackson, 119 Mass. 161; Lewis v. Gocks, 23 Wall. 466. In Bassett v. Brown, 100 Mass. 355, and White v. Thayer, 121 Mass. 226, 228, it was held that there was no jurisdiction of a suit on behalf of the grantor to set aside a deed of land procured from him by fraud, since the land could be recovered by an action at law, — a writ of entry; and in Suter v. Matthews, 115 Mass. 253, the court laid down the general doctrine that there was no concurrent equitable jurisdiction in cases growing out of fraud where the remedy at law was adequate, and there- fore a suit couuld not be maintained to recover money obtained through fraud. Jurisdiction exercised: Gilson v. Hutchinson, 120 Mass. 27; Gheney v. Gleason, 125 Mass. 166; Smith v. Everett, 126 Mass. 304; Fuller v. Per- cival, 126 Mass. 381. In Gilson v. Hutchinson, 120 Mass. 27, a husband had conveyed his land without consideration and on a secret verbal trust to defendant, for the purpose of defrauding his wife of her dower, and died before obtaining a reconveyance. His widow was appointed administratrix, and at her suit the transfer to the defendant was set aside and the title vested in the husband's heirs. In Gheney v. Gleason, 125 Mass. 166, the plaintiff, through fraud of an agent, had been induced to convey his land to A, who was privy to the fraud, and to take in payment certain securities which were worthless. The land having been again conveyed to B, an innocent purchaser, the court sustained a suit by the plaintiff to reach a mortgage for the purchase price given back § 319 EQUITY JURISPKUDENCE. 608 § 319. Other Special Cases. — In addition to the forego- ing important branches of equity jurisprudence, the follow- ing are some of the other subjects over which the statutory jurisdiction has been exercised, although the courts have, in every instance, steadily adhered to the principle that no equitable jurisdiction existed in cases where an adequate remedy could be obtained by an action or proceeding at law. The jurisdiction has been upheld, in this somewhat guarded manner, to restrain or abate nuisances of various kinds ;i to grant the remedy of injunction in a variety of circum- stances, — as, for example, to restrain nuisances and other such tortious acts, to prevent the violation of contracts, to prevent the use and transfer of securities fraudulently ob- tained, and to prevent the accomplishment of other fraudu- lent transactions ; to restrain actions or judgments at law ;2 in suits for an accounting under the strict limitation that by B to A, and for damages. In Smith v. Everett, 126 Mass. 304, the defendant, by fraudulent representations, procured the plaintiff to enter into a co-partnership for a definite period. Held, that the court had jurisdiction to decree a cancellation of the partnership agreement, and to enjoin the defendant from using the firm name; and having thus ob- tained jurisdiction of the case, it would give full relief by ordering a repayment of all moneys advanced or expended by the plaintiff on ac- count of the firm. In Fuller v. Percival, 126 Mass. 381, a promissory note having been obtained by fraud, a suit by the defrauded maker was sustained to enjoin the payee from transferring the note, and to compel its surrender and cancellation. The court, by these decisions, has cer- tainly shown a much more liberal tendency in the exercise of its jurisdiction. § 319, 1 Such as interferences with water rights, rights of way, and other easements or servitudes: Jenks v. Williams, 115 Mass. 217; Cadi- gan v. Brown, 120 Mass. 493; Atlanta Mills v. Mason, 120 Mass. 244; Breed v. City of Lynn, 126 Mass. 367; Tucker v. Howard, 122 Mass. 529; Woodward v. City of Worcester, 121 Mass. 245. § 319, 2 The remedy of injunction seems to have been used by the Massachusetts courts with some freedom. To restrain private nui- sances: Jenks V. Williams, 115 Mass. 217; Cadigan v. Brown, 120 Mass. 493; Atlanta Mills v. Mason, 120 Mass. 244; Woodward v. Worcester, 121 Mass. 245 ; Tucker v. Howard, 122 Mass. 529 ; Breed v. Lynn, 126 Mass. 367 ; to restrain unlawful use of water-power by a mill-owner : Agawam Canal Co. v. Southworth Mfg. Co., 121 Mass. 98; to prevent a 609 JUDICIAL INTERPRETATION OF JURISDICTION. § 319 an accounting in equity is really necessary, because no ade- quate remedy can be obtained at law;^ to reform deeds and other written instruments in which there was a mutual mis- take as to some matter of fact.* Other instances in which violation of a contract by which defendant had sold his stock in trade and good-will to the plaintiff, and had agreed not to carry on the same business at the same place, under a liability for one thousand dollars as liquidated damages in case of a breach : Ropes v. Upton, 125 Mass. 258 ; citing Angier v. Webber, 14 Allen, 211, 92 Am. Dec. 748; Dwight v. Hamilton, 113 Mass. 175; Boutelle v. Smith, 116 Mass. Ill; to restrain the transfer of negotiable instruments obtained by fraud: Fuller v. Percival, 126 Mass. 381; citing Hamilton v. Cummings, 1 Johns. Ch. 517; Commer. Ins. Co. v. McLoon, 14 Allen, 351; Martin v. Graves, 5 Allen, 601; to restrain a fraudulent use of plaintiff's name as a partner: Smith V. Everett, 126 Mass. 304; to restrain an unlawful use of plaintiff's trade-mark or an imitation thereof: Gelman v. Hunnewell, 122 Mass. 139 (the opinion in this case contains an elaborate discussion of the law concerning trade-marks, with a full citation of authorities) ; to prevent the use of a mistaken deed, and to restrain an action at law to recover on its covenants: Wilcox v, Lucas, 121 Mass. 21. § 319, 3 Badger v. McNamara, 123 Mass. 117, 119. The jurisdiction in this case was denied upon the facts. Gray, C. J., stating the rule as follows: "In order to maintain a bill in equity for an accounting, it must appear from the specific allegations that there was a fiduciary rela- tion between the parties, or that the account is so complicated that it cannot be conveniently taken in an action at law. The general allegation that the account is of such a character is not sufficient to sustain the juris- diction in Massachusetts" ; citing Frue v. Loring, 120 Mass. 507 ; Blood v. Blood, 110 Mass. 545 ; Fowle v. Lawrason, 5 Pet. 495 ; Dinwiddie v. Bailey, 6 Ves. 136; Foley v. Hill, 2 H. L. Cas. 28; Smith v. Leveaux, 2 De Gex, J. & S. 1 ; Moxon v. Bright, L. R. 4 Ch. 292. This suit was brought by a consignor of goods sent to be sold against the commission merchant for an account of the proceeds, and especially of the commissions retained ; and it was held that the case was wholly unlike suits between pai-tners or persons between whom accounts are settled in the same manner as those of partners, requiring mutual charges and credits, as in Bartlett v. Parks, 1 Cush. 82; Hallett v. Cumston, 110 Mass. 32. No suit for an accounting growing out of a business or trading or transaction in which the parties were engaged which is illegal: Snell v. Dwight, 120 Mass. 9; Dunham v. Presby, 120 Mass. 285. § 319, 4 Reforming a mistaken deed : Wilcox v. Lucas, 121 ]\Iass. 21 ; citing Glass v. Hulbert, 102 Mass. 24 ; 3 Am. Rep. 418 ; Jones v. Clifford, 1—39 § 320 EQUITY JURISPRUDENCE. 610 tlie jurisdiction has been exercised under special circum- stances or for special reliefs are collected in the foot-note.^ § 320. Many important subjects, in respect of which the equitable jurisdiction has been denied, are mentioned in the foregoing paragraphs. It has also been decided that a court of equity either has no jurisdiction, or will not exer- cise any, under the following circumstances, or for the fol- L. R. 3 Ch, Div. 792. But there is no equitable jurisdiction to recover back money paid through mistake; as where the grantee, through a mis- take as to the amount, had paid too large a sum of purchase-money, it was held that no suit in equity could be maintained to recover back the excess, since the remedy at law by an action for money had and received was ample: Pickman v. Trinity Church, 123 Mass. 1, 25 Am. Rep. 1. § 319, 5 Cases "where there are more than two parties having distinct rights or interests which cannot be justly decided in one action at law" : Gen. Laws 1873, chap. 113, § 2, subd. 6 ; Carr v. Silloway, 105 Mass. 543, 549; Hale v. Cushman, 6 Met. 425; and see McNeil v. Ames, 120 Mass. 481. When a suit in equity will or will not be retained to assess and decree payment of the plaintiff's damages, the special relief demanded being impracticable : Milkman v. Ordway, 106 Mass. 232 ; Tainter v. Cole, 102 Mass. 162. Where the plaintiff was owner of certain shares of the stock of a corporation, and the certificate thereof was, without his fault, fraudulently transferred by means of a forged power of attorney, and was surrendered, and a new certificate issued by the corporation to the purchaser, such original owner may maintain a suit in equity against the corporation, and may obtain a decree compelling it to procure a like num- ber of shares of its own stock, and to issue a certificate therefor to the plaintiff, and to pay him all the dividends which have accrued thereon in the meantime : Pratt v. Boston, etc., R. R. Co., 126 Mass. 443 ; citing Pratt V. Taunton Copper Co., 123 Mass. 110, 25 Am. Rep. 37; Machinists' Nat. Bank v. Field, 126 Mass. 345; Salisbury Mills v. Townsend, 109 Mass. 115; Loring v. Salisbury Mills, 125 Mass. 138; Telegraph Co. v. Daven- port, 97 U. S. 369 ; Duncan v. Luntley, 2 Macn. & G. 30, 2 Hall & T. 78 ; Taylor v. Midland R'y Co., 28 Beav. 287, 8 H. L. Cas. 751; Holbrook v. New Jersey Zinc Co., 57 N. Y. 616. When a suit may or may not be maintained for the purpose of enforcing an equitable set-off: Spaulding V. Backus, 122 Mass. 553, 23 Am. Rep. 391 (the opinion contains an elaborate discussion of the doctrine, with a full citation and review of the authorities). 61 1 JUDICIAL INTERPRETATION OF JURISDICTION. § 320 lowing purposes: Over lost deeds ;i in suits brought by individual inhabitants or tax-payers to compel the perform- ance of a public duty by a municipal corporation, or by its officers ; nor to restrain the collection of a tax on the ground of its illegality ;2 in administration suits, unless under spe- cial circumstances;^ in suits brought by the assignee of § 320, 1 "This court has no equity jurisdiction in cases of lost deeds, independently of some other ground of equity jurisdiction": Campbell v. Sheldon, 13 Pick. 8. § 320, 2 Cariton v. City of Salem, 103 Mass. 141. And see Attorney- General V. Salem, 103 Mass. 138. (This case construes the statute (Gen. Stats., chap. 18, § 79), which gives authority to the court to interfere under special circumstances at the suit of not less than ten taxable in- habitants, and to restrain the illegal acts of municipal authorities in the matter of taxation or creating a public debt, but restricts the operation of the statute to the exact condition of facts mentioned by it; any such jurisdiction, independently of the statute, is emphatically denied). No suit in equity can be maintained by a trustee against two towns to deter- mine in which one of them he is taxable: Macy v. Nantucket, 121 Mass. 351; and there is no jurisdiction in equity to determine whether or to whom a tax is due, nor to restrain its collection. The only remedy for an illegal tax is for the persons to pay it, and sue the town or city at law, in order to recover it back: Loud v. Charlestown, 99 Mass. 208; Norton V. Boston, 119 Mass. 194. § 320, 3 There is no equitable jurisdiction to compel an administrator to account or for the final accounting and settlement of decedents' estates, except under special circumstances, where adequate relief cannot be ob- tained in the court of probate: Wilson v. Leishman, 12 Met. 316. The court said: "It was not the intention of the legislature, by conferring equity powers upon this court, to take away or to intrench upon the juris- diction of the probate court in the settlement of estates, but distinctly to enable this court, among other things, to enforce and regulate the execution of trusts, whether relating to real or personal estate." After showing that all the facts of this case came within the express powers conferred upon the probate court, and all the relief asked, both of an accounting and of a discovery of moneys concealed by the widow, could be effectually given by that tribunal, the opinion adds: "It is true that this court is expressly authorized to hear and determine in equity 'all suits and proceedings for enforcing and regulating the execution of trusts, whether the trust relate to real or personal estate.' It is also true that a court having general equity jurisdiction will treat, as a trustee, an administrator who has prop- erty in his hands for the parties entitled according to the statutes of § 320 EQUITY JURISPRUDENCE. 612 a legal thing in action to recover the amount due upon sucli demand, where an action at law can be maintained in the name of the assignor;^ and in other instances collected in the foot-note.5 distribution, on the ^ound that the property thus held is a trust, and the enforcing of a distribution of it is the execution of a trust." But this latter branch of the jurisdiction over trusts is not possessed by the courts of Massachusetts as a part of their limited equitable poAvers; it has been expressly conferred upon the probate courts, and will not be assumed nor exercised by means of any enlarged interpretation put upon the language of the statutes. See, also, Southwiek v. Morrell, 121 Mass. 520; Sykes v. Meaeham, 103 Mass. 285. A creditor cannot maintain a suit in equity against the administrator of his debtor, to recover a debt barred by the statute of limitations, on the ground that he was a non-resident alien, and did not learn of the debtor's death, etc. § 320, 4 A court of equity will not entertain a bill in equity by the assignee of a strictly legal right, merely upon the ground that he cannot bring an action at law in his own name, nor unless it appears that the assignor prohibits and prevents such action being brought in his name, or that an action in the assignor's name would not afford the assignee au adequate remedy: Walker v. Brooks, 12 Mass. 241; citing Hammond v. Messinger, 9 Sim. 327, 332, per Shadwell, V. C. The contrary rule as stated by Judge Story in Eq. Jur., § 1057a, and in Eq. PL, § 153, is shown to be erroneous. See the elaborate discussion and review of the decisions in the opinion at pages 244-248. § 320, 5 Equitable jurisdiction does not extend to cases of libel or slander, or false representation as to the character or quality of plaintiff's property, or as to his title thereto, which involves no breach of trust or contract. The plaintiff's bill alleged no trust nor contract, nor use of plaintiff's name, but only that defendant had made false and fraudulent representations, oral and written, that the articles manufactured by plain- tiff were an infringement of defendant's patent rights, and that plaintiff had been sued by defendant therefor, and that defendant had threatened with suit divers persons who had purchased plaintiff's said articles, pray- ing an injunction, etc. Held, that there was no equitable jurisdiction in such a case ; the jurisdiction in cases of trade-mark rests upon the right of property therein: Boston Diatite Co. v. Florence Manufacturing Co., 114 Mass. 69, 19 Am. Rep. 310; Whitehead v. Kitson, 119 Mass. 484; citing Gee V. Pritchard, 2 Swanst. 402, 413 ; Seeley v. Fisher, 11 Sun. 581, 583 ; Fleming v. Newton, 1 H. L. Cas. 363, 371, 376; Emperor of Austria v. Day, 3 De Gex, F. & J. 217, 238-241 ; Mulkem v. Ward, L. R. 13 Eq. 619. The opinion of Malins, V. C, in Springhead Spin. Co. v. Riley, L. R. 6 C13 JUDICIAL INTERPRETATION OF JURISDICTION. §§ 321, 322 § 321. Jurisdiction Enlarged by Recent Statute. — The partial, and in some respects much limited, equitable juris- diction which I have thus sketched in outline is without doubt greatly enlarged, and perhaps rendered complete, by the statute of 1877, quoted in the preceding section; and several of the cases referred to in the foregoing paragraphs or quoted in the notes might now be differently decided. Indeed, the few decisions made since that statute, although not expressly referring to its language, exhibit, as it seems to me, a very evident purpose on the part of the Massachu- setts court to exercise its equitable jurisdiction in accord- ance with a much more liberal and comprehensive theory than that which it formerly held, and upon which it has long acted. 1 It is impossible, however, to state with any certainty the full effect of this most recent enactment. § 322. Maine: General Extent and Nature — The Statu- tory Construction. — The course of legislation and of judicial construction in this state, on the general subject of equity jurisdiction, has followed very clearly after that of Massa- chusetts. The provisions of the Massachusetts statutes Eq. 551, Dixon v. Holden, L. R. 7 Eq. 488, and Rollins v. Hinks, L. R. 13 Eq. 355, was expressly criticised and rejected. There is no. jurisdic- tion to compel a lessee, whose term has been sold on execution, to deliver up to the purchaser — the plaintiff — the counterparts of his lease and subleases which are recorded, and there is no jurisdiction under General Laws. chap. 113, § 2, subd. 6, of a suit by an assignee in law of the lessee's estate against the lessee who claims rent from a subtenant : McNeil v. Ames, 120 Mass. 481. In a suit for discovery and relief, even if dis- covery be obtained, the relief will not be granted when the plaintiff has an adequate remedy at law : Ward v. Peck, 114 Mass. 121, 122. Gray, J., said : "This bill cannot be maintained for relief, because the plaintiff has a plain, adequate, and complete remedy at law by an action for money had and received." The notion that discovery can be made the foundation of a jurisdiction in cases where no jurisdiction would otherwise have ex- isted, is plainly rejected in Massachusetts. § 321, 1 See, as illustrations, Bresnihan v. Sheehan, 125 Mass. 11 (1878); Ropes v. Upton, 125 Mass. 258; Cheney v. Gleason, 125 Mass. 166; Smith v. Everett, 126 Mass. 304 (1878); Fuller v. Percival, 126 Mass. 381 (1879) ; Pratt v. Boston, etc., R. R., 126 Mass. 443. § 322 EQUITY JURISPEUDENCE. 614 have been copied almost identically by the legislature of Maine, and the methods adopted by the Massachusetts courts have been fully accepted by the judiciary of Maine. At an early day the powers of the supreme court to grant distinctively equitable relief according to the modes of chancery were extremely narrow, extending to but one or two topics of minor importance. The jurisdiction was gradually, but very cautiously, enlarged by successive acts of the legislature; and these statutes, collected, arranged, and condensed, form the chapter 77, section 5, of the revi- sion of 1871, which is quoted in the notes of the preceding section.^ All of the decisions, with very few exceptions, are the judicial construction given to these legislative grants of equitable powers. This restrictive policy has re- cently been abandoned. In 1874 the legislature of Maine, in this also following the example of Massachusetts, by a brief enactment, but in comprehensive terms, conferred full equity jurisdiction and powers, with respect to all matters where the remedy at law is not complete and adequate.^ We are thus relieved from the necessity of a thorough and accurate discussion of the reported decisions for the pur- pose of ascertaining what equitable jurisdiction is now held by the courts of Maine, and what are the limitations upon it. We need only to inquire in a very general manner what amount of jurisdiction has been held and exercised prior to the enlarging statute of 1874, in order that the true meaning and force of the reported cases as precedents may be apprehended, and their application to the general sys- tem of equity jurisprudence may be understood. I purpose, therefore, to describe in the briefest manner the theory of interpretation with respect to its own equitable powers uniformly acted upon by the supreme court, and to enumer- ate the most important heads of equity jurisdiction which it asserted and exercised under the former statutes. I § 322, 1 See ante, § 286, in notes. § 322, 2 See ante, § 286, note. 615 JUDICIAL INTERPRETATION OF JURISDICTION. § 323 § 323. Througliout the whole series of decisions ren- dered in cases arising prior to the act of 1874, above men- tioned, the supreme court of Maine has constantly denied the possession by itself of a full, general, equitable jurisdic- tion commensurate with that held by the English court of chancery ; has declared that its only equitable powers were those conferred in express terms by successive statutes of the legislature; and in the interpretation of these enact- ments, has always insisted that their language should be strictly construed, and that no equitable powers arising by implication should be assumed or exercised. Furthermore, these legislative grants were all given under the limitation that ''no adequate and certain remedy could be had at law." This limitation has invariably been regarded as con- stituting the test of the jurisdiction; and the principle seems to have been settled that even where a case came within the very terms of the statute, the equitable powers of the court could not be exercised if there was also a cer- tain and adequate remedy at law. These conclusions are fully sustained by the decisions cited in the foot-note. ^ The very few reported decisions in cases arising since the stat- ute of 1874 recognize the complete change in the legislative § 323, 1 In fact almost every eqiaity case decided by the court is an authority for the propositions of the text, but in the following the point was distinctly presented and determined: Getchell v. Jewett, 4 Me. 350, 359, per Mellen, C. J.; Frost v. Butler, 7 Me. 225, 231, 22 Am. Dec. 199; French v. Sturdivant, 8 Me. 246, 251; Coombs v. Warren, 17 Me. 404, 408; Chalmers v. Hack, 19 Me. 124, 127; Danforth v. Roberts, 20 Me. 307; Thomaston Bank v. Stimpson, 21 Me. 195; Russ v. Wilson, 22 Me. 207, 209; Shaw v. Gray, 23 Me. 174, 178; Bubier v. Bubier, 24 Me. 42; Chase v. Palmer, 25 Me. 341 ; Woodman v. Freeman, 25 Me. 531, 532, 543 ; Pratt V. Thornton, 28 Me. 355, 366, 48 Am. Dec. 492 ; Baldwin v. Bangor, 26 Me. 518, 524; Farwell v. Sturdivant, 37 Me. 308; Hayford v. Dyer, 40 Me. 245 ; Fletcher v. Holmes, 40 Me. 364 ; York, etc., R. R. v. M3'ers, 41 Me. 109, 119 > Fisher v. Shaw, 42 Me. 32; Tucker v. Madden. 44 Me. 206, 215; McLarren v. Brewer, 51 Me. 402, 407; Stephenson v. Davis, 56 Me. 73; Crooker v. Rogers, 58 Me. 339; Spofford v. B. & B. R. R., 66 Me. 51; Pitman v. Thornton, 65 Me. 469; Richardson v. Woodbury, 43 Me. 206, 210. § 324 EQUITY JUmSPRUDENCE. 616 policy shown in that enactment, and seem to admit that the court is clothed by it with the full equitable jurisdiction; but the extent and limits, if any, have not yet been judicially defined. 2 I shall now describe very briefly the extent to which the important heads of jurisdiction had been settled under the former statutory system. § 324. Mortgages. — The exceedingly cautious and re- stricted manner in which the court was accustomed to deal with its equitable jurisdiction is shown in the doctrines which were settled concerning mortgages. The only powers which it possessed were those given in the clause expressly relating to mortgages, and could not be enlarged by any of the other more general provisions conferring jurisdiction in cases of fraud, trusts, mistake, and the like ; and even the powers thus apparently given in very terms were held to be restricted by other mandatory portions of the statutes. 1 In accordance with this view, it was settled that the court had no equitable powers to declare a deed of con- veyance of land absolute on its face to be in fact a mort- gage ;2 nor any power over equitable mortgages or ven- dor's liens either to enforce them or to redeem from them;^ nor any power to entertain equitable suits for the fore- § 323, 2 See Rowell v. Jewett, 69 Me. 293, 303. This suit was brought to have a deed absolute and unconditional on its face declared to be a mortgage. It had been well settled by a series of former decisions that the court had no jurisdiction to grant such relief; that the case came under no species of equitable powers given to the court. This ruling, however, was not followed; the former decisions were disregarded, and the relief was granted, solely on the ground that full equitable powers were now held by the court. The discussion of the opinion opens with the follow- ing language: "Prior to the statute of 1874 giving this court full equity Jurisdiction," etc. § 324, 1 See French v. Sturdivant, 8 Me. 246, 251, which describes the general jurisdiction in equity over mortgages. §324, 2 Richardson v. Woodbury, 43 Me. 206, 210; Thomaston Bank V. Stimpson, 21 Me. 195. §324, 3philbrook v. Delano, 29 Me. 410, 414; Thomaston Bank v. Stimpson, 21 Me. 195; Richardson v. Woodbury, 43 Me. 206, 210. 617 JUDICIAL INTERPRETATION OF JURISDICTION. § 324 closure of mortgages, although jurisdiction in "cases of foreclosure" was expressly mentioned in the clause con- ferring equitable powers, because a proceeding for fore- closure was described and regulated by other sections of the statute.* Some, if not all, of these conclusions reached by the court under the former legislation must be regarded as reversed and abrogated by the statute of 1874.^ The only substantial equitable power over mortgages possessed by the court was that of entertaining suits for a redemp- tion; and even that such a suit might be maintained, the plaintiff must have fully complied with certain other statu- tory provisions regulating the mode of redemption.^ The § 324, 4 The court said that the legislature could not have intended to provide for two different modes of foreclosure, — the statutory and the suit in equity, — and it therefore pronounced the clause giving equitable jurisdiction "in cases of foreclosure" to be a mere nullity: Gardiner v. Gerrish, 23 Me. 46, 48 ; Shaw v. Gray, 23 Me. 174, 178 ; Chase v. Palmer, 25 Me. 341, 345 ; Brown v. Snell, 46 Me. 490, 496. In Shepley v. Atlantic, etc., R. R., 55 Me. 395, 407, a special provision of a railroad mortgage in favor of the mortgagees upon a default of the mortgagors was specifically enforced. § 324, 5 See Rowell v. Jewett, 69 Me. 293, 303. A deed absolute on its face was held to be a mortgage, the decision being expressly placed upon the ground that now, under this statute, the court has a "full equity juris- diction," the earlier cases and the former rule having been the results solely of a lack of equitable powers in the court. § 324, 6 Pitman v. Thornton, 65 Me. 469 ; Shaw v. Gray, 23 Me. 174, 178; Farwell v. Sturdivant, 37 Me. 308; York, etc., R. R. v. Myers, 41 Me. 109; Richardson v. Woodbury, 43 Me. 206, 210; Thomaston Bank V. Stimpson, 21 Me. 195; Brown v. Snell, 46 Me. 490, 496. With respect to the mode of redemption, who may redeem, and the preliminaries requi- site on the part of the plaintiff as prescribed by other statutory clauses, see the following cases : True v. Haley, 24 Me. 297 ; Gushing v. Ayer, 25 Me. 383; Pease v. Benson, 28 Me. 336; Roby v. Skinner, 34 Me. 270; Sprague v. Graham, 38 Me. 328; Baxter v. Child, 39 Me. 110; Jewett v. Guild, 42 Me. 246; Mitchell v. Burnham, 44 Me. 286, 302; Stone v. Bart- lett, 46 Me. 439; Stone v. Locke, 46 Me. 445; Williams v. Smith, 49 Me. 664; Crooker v. Frazier, 52 Me. 405; Wing v. Ayer, 53 Me. 138; Pierce V. Faunce, 53 Me. 351; Phillips v. Leavitt, 54 Me. 405; Randall v. Brad- ley, 65 Me. 43, 48 ; Wallace v. Stevens, 66 Me. 190 ; Dinsmore v. Savage, 68 Me. 191, 193; Rowell v. Jewett, 69 Me. 293; Chamberlain v. Lancey, 60 Me. 230, 233. §§325,326 EQUITY JURISPRUDENCE. 618 court seems to have admitted its power to enforce the claim of a pledgee of personal property by an equitable suit for a foreclosure and sale of the articles pledged.'^ § 325. Penalties and Forfeitures. — The jurisdiction given in general terms by the statute to relieve from forfeitures and penalties seems to have been admitted and exercised without abridgment, according to the settled doctrines of equity jurisprudence. ^ § 326. Specific Performance. — The jurisdiction under the statute to compel the specific performance of written contracts for the purchase and sale of land was fully ad- mitted and exercised wherever the terms of the agreement were such with respect to fairness, consideration, certainty, reasonableness, and the like, as to bring the case within the well-settled doctrines of equity jurisprudence; these doctrines were adopted and acted upon as regulating the jurisdiction. 1 It was held, however, that the court had no such equitable power to decree a specific performance, even though the agreement was in writing, where the remedy at law was adequate, — as, for example, where the undertak- ing was in the alternative, either to convey land or to pay a definite sum of money, not as a penalty, or where the only relief to be obtained was damages,^ — nor the power to § 324, 7 Boynton v. Payrow, 67 Me. 587. § 325, 1 Eveleth v. Little, 16 Me. 374; Gordon v. Lowell, 21 Me. 251; Mai-wick v. Andrews, 25 Me. 525; Downes v. Reily, 53 Me. 62; Sliepley V. Atlantic, etc., R. R., 55 Me. 395, 407. §326, 1 GetcheU v. Jewett, 4 Me. 350, 359, per Mellen, C. J.; Stearns V. Hubbard, 8 Me. 320; Rogers v. Saunders, 16 Me. 92, 33 Am. Dec. 635; Haskell v. Allen, 23 Me. 448, 451 ; Bubier v. Bubier, 24 Me. 42, 47 ; Foss V. Haynes, 31 Me. 81, 89 ; Hill v. Fisher, 34 Me. 143, 40 Me. 130 ; Fisher V. Shaw, 42 Me. 32, 40; Hull v. Sturdivant, 46 Me. 34, 41; Shepley v. Atlantic, etc., R. R., 55 Me. 395, 407; Portland, etc., R. R. v. Grand Trunk R. R. Co., 63 Me. 90, 99 ; Snell v. Mitchell, 65 Me. 48 ; Chamber- lain V. Black, 64 Me. 40; Roxbury v. Huston, 37 Me. 42; against grantee of the vendor : Linscott v. Buck, 33 Me. 530, 534 ; Foss v. Haynes, 31 Me. 81, 89. § 326, 2 Contracts in the alternative : Fisher v. Shaw, 42 Me. 32 ; re- lief of damages: Haskell v. Allen, 23 Me. 448, 451; Marston v. Hum- 619 JUDICIAL INTERPRETATION OF JURISDICTION. §§327,328 compel the specific performance of a verbal agreement for the sale of land on the ground of its part performance.^ § 327. Fraud. — The jurisdiction to grant the equitable reliefs directly arising from frauds was fully admitted, since it was given in very general language by the statute. ^ But the court steadily refused to extend the jurisdiction over frauds by implication to other matters which were not within the express terms of some statutory grant, or for which there was an adequate remedy at law; and for this reason it denied the existence of any equitable powers in cases, even of actual fraud, where the only relief to be ob- tained was a recovery of damages.^ § 328. Creditors ' Suits. — Ample authority to entertain these suits is given by a statute; but, independently of this special enactment, and under the general jurisdiction in cases of fraud, the court exercised a power to relieve phrey, 24 Me. 513, 517. Nor can the court decree a specific performance when the plaintiff has already recovered a judgment at law upon the contract; for his suit is not then based upon an agreement in writing: Bubier v. Bubier, 24 Me. 42, 47. § 326, 3 Stearns v. Hubbard, 8 Me. 320 ; Wilton v. Harwood, 23 Me. 131, 133; Marston v. Humphrey, 24 Me. 513, 517; Hunt v. Roberts, 40 Me. 187; Patterson v. Yeaton, 47 Me. 308, 315. But in Chamberlain v. Black, 64 Me. 40, the court decreed the complete specific performance of an agreement partly oral and partly written. § 327, 1 Dwinal v. Smith, 25 Me. 379 ; Given v. Simpson, 5 Me. 303, 309; Traip v. Gould, 15 Me. 82; Gardiner v. Gerrish, 23 Me. 46; Sargent V. Salmond, 27 Me. 539, 547; Caswell v. Caswell, 28 Me. 232, 236; Foss V. Haynes, 31 Me. 81, 89; Hartshorn v. Eames, 31 Me. 93, 96; Fletcher V. Holmes, 40 Me. 364; Stover v. Poole, 67 Me. 217; Webster v. Clark, 25 Me. 313, 315 ; Woodman v. Freeman, 25 Me. 531, 540. § 327, 2 Jurisdiction refused where the only relief was damages : Woodman v. Freeman, 25 Me. 531, 540; Piscataqua, etc., Co. v. Hill, 60 Me. 178 ; Denny v. Gilman, 26 Me. 149, 153. The general jurisdiction in cases of fraud did not enlarge the equity powers of the court over mort- gages: French v. Sturdivant, 8 Me. 246, 251; nor its powers to compel the specific performance of verbal contracts for the sale of land: Wilton § 32^ EQUITY JUEISPEUDENCE. 620 judgment creditors against the fraudulent transfers by debtors of their property, either real or personal.^ By virtue of other sections of the statute, the court has power to give equitable relief to the parties interested in a levy made under an execution upon land of the judgment debtor ;2 and also to redeem lands thus levied upon. 3 § 329. Trusts.— The chapter of the Revised Statutes con- tains two distinct sections relating to trusts, — one of them in general terms giving jurisdiction ''in all cases of trust," the other conferring power to construe wills and to ad- minister testamentary trusts. "With reference to the first and more general grant, it was held in an early case, that, under a former provision of the statute, the jurisdic- tion was confined to express trusts.^ This construction, however, no longer prevails. By the broad terms of the present statute the jurisdiction embraces all express trusts, ^ all trusts arising by operation of law, and recognized by the doctrines of equity jurisprudence, whether resulting, V. Harwood, 23 Me. 131, 133; nor in cases of attachment: Skeele v. Stan- wood, 33 Me. 307.a § 328, 1 Gordon v. Lowell, 21 Me. 251; Webster v. Clark, 25 Me. 313; Traip v. Gould, 15 Me. 82; Sargent v. Salmond, 27 Me. 539, 547; Cas- well V. Caswell, 28 Me. 232, 236; Hartshorn v. Eames, 31 Me. 93, 96; Webster v. Clark, 25 Me. 313, 315. § 328, 2 Maine Rev. Stats., chap. 76, §§ 14, 20, pp. 572, 573; Warren V. Ireland, 29 Me. 62; Garnsey v. Garnsey, 49 Me. 167; Thayer v. Maj'^o, 34 Me. 142; Glidden v. Chase, 35 Me. 90, 56 Am. Dec. 690; Keen v. Briggs, 46 Me. 469; Day v. Swift, 48 Me. 369; Wilson v. Gannon, 54 Me. 384. § 328, 3 Maine Rev. Stats., chap. 76, § 25 ; Boothby v. Commercial Bank, 30 Me. 361, 363. § 329, 1 Given v. Simpson, 5 Me. 303. § 329, 2 Morton v. Southgate, 28 Me. 41 ; Pratt v. Thornton, 28 Me. 355, 366, 48 Am. Dec. 492; Tappan v. Deblois, 45 Me. 122, 131; Cowan V. Wheeler, 25 Me. 267, 43 Am. Dec. 283. §327, (a) The present jurisdiction See Taylor v. Taylor, 74 Me. 582; in matters of fraud is much broader. Merrill v. McLaughlin, 75 Me. 64. 621 JUDICIAL INTERPRETATION OF JURISDICTION. § 330 implied, or constructive,^ and charitable trusts.'* By the other clause there is a complete jurisdiction for the con- struction of wills which create any trust relation, and for the execution of testamentary trusts, supervision of trus- tees, regulating the disposition and investment of trust property, and the like.^ § 330. Mistake and Accident — Reformation. — The juris- diction ordinarily possessed by courts of equity growing out of mistake or accident, and to grant the remedy of reforma- tion according to the settled rules of equity jurisprudence, seems to have been fully conferred by the statute, and to have been freely exercised without any special limitations. i § 329, 3 Linscott v. Buck, 33 Me. 530, 534 ; Roxbury v. Huston, 37 Me. 42; Richardson v. Woodbury, 43 Me. 206; Tappan v. Deblois, 45 Me. 122, 131 ; McLarren v. Brewer, 51 Me. 402 ; Crooks v. Rogers, 58 Me. 339, 342; Russ v. Wilson, 22 Me. 207, 210. § 329, 4 Tappan v. Deblois, 45 Me. 122, 131 ; Preachers' Aid Soc. v. Rich, 45 Me. 552, 559; Howard v. Am. Peace Soc, 49 Me. 288, 306; Nason v. First Church, etc., 66 Me. 100. § 329, 5 Construction of wills : Morton v. BaiTett, 22 Me. 257, 39 Am. Dec. 575; Wood v. White, 32 Me. 340, 52 Am. Dec. 654 (correction of a mistake in the christian name of a legatee) ; Howard v. Am. Peace Soc, 49 Mc 288, 306; Baldwin v. Bean, 59 Me. 481; Richardson v. Knight, 69 Me. 285, 289; Jones v. Bacon, 68 Me. 34, 28 Am. Rep. 1; Slade v. Patten, 68 Me. 380; Everett v. Carr, 59 Me. 325. Executing testa- mentary trusts: Morton v. Southgate, 28 Me. 41; Bugbee v. Sargent, 23 Me. 269; Bugbee v. Sargent, 27 Me. 338; Tappan v. Deblois, 45 Me. 122, 131; Preachers' Aid Soc v. Rich, 45 Me. 553, 559; Howard v. Am. Peace Soc, 49 Me. 288, 306; Elder v. Elder, 50 Me. 535; Richardson v. Knight, 09 Me. 285, 289 ; Nason v. First Church, etc., 66 Me. 100. § 330, 1 In most of these cases a reformation was granted : Wood v. White, 32 Me. 340, 52 Am. Dec. 654 (mistake in name of a legatee in a will corrected); Farley v. Bryant, 32 Me. 474; Tucker v. Madden, 44 Me. 206, 216; Adams v. Stevens, 49 Me. 362, 366; Stover v. Poole, 67 Me. 218; Jordan v. Stevens, 51 Me. 78, 81 Am. Dec. 556. In this case the court held that the jurisdiction given by statute was not confined to mistakes of fact, and that a court of equity has power, under some circumstances, to relieve from a mistake of law.* § 330, (a) To the same effect, Tarbox v. Tarbox, 111 Me. 374, 89 Atl. 194. §§331,332 EQUITY JURISPRUDENCE. 61^2 § 331. Nuisance and Waste. — Under tlie statutory pro- vision concerning these subjects, the court has held that its jurisdiction extends to all cases of proper waste or nuisance, according to well-settled doctrines of equity jurisprudence, where the remedy at law is inadequate, and where the plain- tiff's title is clear, or if disputed has been established by a recovery at law, and enables it to grant the relief of abate- ment and of injunction; but there is no jurisdiction in cases where the only relief is a recovery of damages.^ § 332. Partnership, Part Owners, and Accounting. — The statutes do not in terms give the jurisdiction ordinarily possessed by courts of equity over all matters of account- ing; the only express grant of power is that contained in this subdivision of the statute relating to partners and other part owners. The supreme court seems to have given a restricted construction to the clause, and to have con- fined the equitable jurisdiction under it to cases between true legal partners, or between joint owners or co-owners of real or personal property, for the purpose of determin- ing, by means of an accounting, their respective shares, and adjusting their mutual claims.^ § 331, 1 Cases of nuisance : Porter v. Witham, 17 Me. 292 ; Andros- coggin, etc., R. R. V. Androscoggin R. R., 49 Me. 392, 403; Varney v. Pope, 60 Me. 192. Cases of waste : The jurisdiction is confined to cases of technical waste, and the statute cannot be extended by implication to embrace cases of trespasses: Leighton v. Leighton, 32 Me. 399, 402. § 332, 1 Cases of partnership : Reed v. Johnson, 24 Me. 322, 325 ; Woodward v. Cowing, 41 Me. 9, 12, 66 Am. Dec. 211; Holyoke v. Mayo, 50 Me. 385; Pray v. Mitchell, 60 Me. 430. Cases of part owners: Maguire v. Pingree, 30 Me. 508 ; Ripley v. Crooker, 47 Me. 370, 378, 74 Am. Dec. 491; Mustard v. Robinson, 52 Me. 54; Carter v. Bailey, 64 Me. 458, 465, 18 Am. Rep. 273; Somes v. White, 65 Me. 542, 20 Am. Rep. 718. With respect to accounting in general, see McKim v. Odom, 12 Me. 94; Carter v. Bailey, 64 Me. 458, 465, 18 Am. Rep. 273.^ § 332, (a) A bill for an accounting shares, is not maintainable, since the by the owners of a vessel against remedy at law is ample. Bird v. the master, who had taken her on Hall, 73 Me. 73. 623 JUDICIAL INTERPRETATION OF JURISDICTION. §§333,334 § 333. Injunction. — While tlie statute authorizes injunc- tions ''in cases of equity jurisdiction," this language, it was held, referred only to the limited jurisdiction con- ferred upon the courts of Maine, and did not permit an injunction under all the circumstances in which it may be used by a tribunal clothed with full equitable powers. The supreme court has therefore dealt with injunctions in a very cautious and guarded manner.^ § 334. Taxation by Municipal Corporation. — A modern statute gives a special jurisdiction, which perhaps does not exist independently of statutory authority, to interfere at the suit of taxable inhabitants, and prevent counties, cities, towns, and school districts from pledging their credit, lay- ing taxes, or paying out public money for any purpose not authorized by law. The nature, extent, and limits of this judicial power are discussed and determined in the cases collected in the foot-note.^ § 333, 1 The injunction has been allowed to restrain an action or judg- ment at law on the ground of fraud, or mistake, or purely equitable de- fense, but with great caution : Chalmers v. Hack, 19 Me. 124, 127 ; Cowan V. Wheeler, 25 Me. 267, 282, 43 Am. Dec. 283 ; Titcomb v. Potter, 11 Me. 218; Russ v. Wilson, 22 Me. 207; Devoll v. Scales, 49 Me. 320; Marco v. Low, 55 Me. 549; to restrain waste or nuisance; Porter v. Witham, 17 Me. 292; Androscoggin, etc., R. R. v. Androscoggin R. R., 49 Me. 392, 403 ; Vamey v. Pope, 60 Me. 192 ; Leighton v. Leighton, 32 Me. 399, 402 ; and in extreme cases to restrain trespasses: Leighton v. Leighton, 32 Me. 399, 402 ; Spofford v. Bangor, etc., R. R., 66 Me. 51. For cases con- cerning injunctions in general, see Russ v. Wilson, 22 Me. 207; Smith V. Ellis, 29 Me. 422, 425; York, etc., R. R. v. Myers, 41 Me. 109; Morse V. Machias, etc., Co., 42 Me. 119, 127 ; Lewiston Falls Mfg. Co. v. Frank- lin Co., 54 Me. 402. § 334, 1 Clark v. Wardwell, 55 Me. 61 ; Johnson v. Thorndike, 56 Me. 32, 37 ; Allen v. Inhabitants of Jay, 60 Me. 124, 11 Am. Rep. 185 ; Marble V. McKenney, 60 Me. 332. There is no power whatever in a court of equity to review the proceedings of county, town, or city officials in the matter of laying out or establishing ro'ads or streets : Baldwin v. Bangor, 36 Me. 518, 524. §§ 335-337 EQUITY JURISPRUDENCE. 624 § 335. Discovery. — Discovery as an independent source of jurisdiction is distinctly repudiated. No suit could therefore be maintained for discovery and relief unless there was otherwise a jurisdiction to entertain the suit for the relief alone. Nor, as it seems, was a bill of discovery, properly so called, without relief in aid of an action or defense at law authorized by the statutory language. The only discovery permitted was in aid of a relief which could be obtained under some of the specified heads of jurisdiction conferred by the statute.^ § 336. Damages. — The power to award damages in a proper case, as a necessary incident to other purely equi- table relief and in the same decree, is fully admitted, and even to award damages alone in very special cases; but the jurisdiction has been exercised with the utmost caution and reserve.^ §337. Other Special Subjects. — In addition to the fore- going general grants of jurisdiction, the statutes of Maine contain numerous other provisions authorizing an equitable suit and equitable relief under the special circumstances and for the special purposes therein described. ^ The most important of these clauses which have received any judicial construction are those relating to banks and other corpora- § 335, 1 Coombs v. Warren, 17 Me. 404, 408 ; Woodman v. Freeman, 25 Me. 531, 543 (no discovery without relief in aid of an action or de- fense at law) ; Russ v. Wilson, 22 Me. 207, 210; Warren v. Baker, 43 Mc. 570, 574 (no jurisdiction for a bill of discovery alone in aid of an action at law) ; Dinsmore v. Grossman, 53 Me. 441; Foss v. Haynes, 31 Me. 81. § 336, 1 Woodman v. Freeman, 25 Me. 531, 532, 543. The opinion in this case contains a most able, full, and instinictive discussion of the whole subject of damages in equity. See, also, Piscataqua, etc., Co. v. Hill, 60 Me. 178; Haskell v. Allen, 23 Me. 448, 451; Denny v. Gilman, 26 Me. 149, 153. The supreme court has constantly felt itself restricted and cramped as a court of equity fey a provision in the state constitution preserving a right to trial by jury. § 337, 1 Ante, § 286, note. 625 JUDICIAL INTERPEETATION OF JURISDICTION. § 338 tions,2 and to the affairs of railroad companies. ^ Cases illustrating one or two other matters incidentally relating to the equitable jurisdiction may be found in the foot- note. ^ It is plain from the foregoing summary that the decisions made by the supreme court of Maine are not safe guides in ascertaining the nature, extent, and limits of the powers possessed by tribunals having a full equitable juris- diction, like the English court of chancery, or the courts in many of our states. At the same time many of its opinions dealing with doctrines of equity jurisprudence which belong to branches of the jurisdiction conferred upon it are exceed- ingly valuable and instructive, both for the learning and the ability of their discussions. § 338. Pennsylvania. — The equitable jurisdiction in Pennsylvania, until the recent legislation quoted in the last section, has been so peculiar, so unlike that prevailing in any other state, that I shall only attempt to describe it in a very general manner. A full and detailed account, with all the modes of operating the system, can only be given by means of an extended examination of numerous decided cases, and many quotations from judicial opinions. I must leave the reader to make his own examination of the cases cited in the foot-notes, the perusal of which will give him a clear notion of the system in all its theory and practical working. §337, 2 Me. Rev. Stats., chap. 47, §§46, 47, 57, 74, 99; Hewitt v. Adams, 50 Me. 271, 277; Bank of Mut. Redemption v. Hill, 56 Me. 385, 388, 96 Am. Dec. 470 ; Wiswell v. Starr, 48 Me. 401 ; American Bank v. Wall, 56 Me. 167; Dane v. Young-, 61 Me. 160; Baker v. Atkins, 62 Me. 205 ; Jones v. Winthrop, 66 Me. 242. § 337, 3 Me. Rev. Stats., cliap. 51, §§ 10, 53; Illsley v. Portland, etc., R. R. Co., 56 Me. 531, 537; In re Bondliolders of York, etc., R. R., 50 Me. 552, 564 ; Kennebec, etc., R. R. v. Portland, etc., R. R., 54 Me. 173. § 337, 4 The statute of limitations and lapse of time ; their effects upon the exercise of the jurisdiction: Chapman v. Butler, 22 Me. 191; Lawrence v. Rokes, 61 Me. 38, 42. Equitable set-off: Smith v. Ellis, 29 Me. 422, 426. 1—40 §§339,340 EQUITY J UEISPRUDENCE. 626 § 339. Equitable Powers of the Common-law Courts. — The courts of original general jurisdiction have been strictly common-law tribunals, and the common-law forms of action have continued in use until the present day. The equitable jurisdiction prevailing until recently may be de- scribed, in one sentence, to consist of the adoption by the courts of the doctrines of equity, and the application of such doctrines, in combination with rules of the common law, in the trial and decision of legal actions, and the granting of equitable reliefs so far as was possible by means of enlar- ging the scope and molding the operation of the various com- mon-law forms of action. The resulting jurisprudence of the state was therefore one uniform system containing an admixture of legal and equitable doctrines and rules, legal and equitable rights and duties, legal remedies, and to a limited extent equitable remedies. There was, however, no power in the courts to entertain a distinctively equitable suit, and to render a decree giving purely equitable relief ; the only equitable reliefs possible were those obtainable, sometimes directly, but more often indirectly, through the verdict of a jury and the judgment of the court thereon in some common-law action, — as, for example, an action of ejectment, or of covenant. § 340. For a long time the legislature refused not only to create any separate court of chancery, but even to confer any distinctively equitable powers, with one or two trivial exceptions, upon the courts of law. The judges were there- fore compelled, in order to prevent a failure of justice, to invent some mode of administering equity. This was ac- complished by the adoption of the principles, doctrines, and rules of equity jurisprudence as a part of the law of the state. The decision of common-law actions was made to depend, not upon the strict rules of the common law alone, but, as well, upon the rules of equity; and of course the scope, object, and effect of these actions were greatly modi- fied. Purely equitable demands were enforced by legal 627 JUDICIAL INTERPRETATION OF JURISDICTION. § 340 actions and judgments ; purely equitable defens.es were per- mitted in sucli actions; purely equitable reliefs were, to a considerable extent, obtained by means of actions at law. All this was accomplished by the intervention of the judges, by the control which they exercised over the action of juries, and by their molding the judgment entered upon a verdict so as to render it special and adapted to the circumstances of the particular case, and the equitable rights of the liti- gant parties. By these most admirable contrivances the evil effects of ignorance and prejudice in the legislature were in a great measure obviated, and the courts were able to exercise, in effect, a wide equitable jurisdiction, and to incorporate all the principles and important doctrines of equity jurisprudence into the municipal law of Pennsyl- vania. I have collected in the foot-note a number of cases to illustrate the foregoing conclusions, and to explain the system, not only in its general theory, but in all the detail of its practical operations. ^ * § 340, 1 Pollard v. Shaffer, 1 Dall. 210, 211, 1 Am. Dec. 239 ; Wikoff V. Coxe, 1 Yeates, 353, 358; Hollingsworth v. Fry, 4 Dall. 345, 348; Wharton v. Morris, 1 Dall. 124, 125; Dorrow v. Kelly, 1 Dall. 142, 144; Stansbury v. Marks, 4 Dall. 130 ; Ebert v. Wood, 1 Binn. 217, 2 Am. Dec. 436 ; Murray v. Williamson, 3 Binn. 135 ; Jordan v. Cooper, 3 Serg. & R. 564, 578, 579, 589 ; Funk v. Voneida, 11 Serg. & R. 109, 115 ; Hawthorn v. Bronson, 16 Serg. & R. 269, 278; Lehr v. Beaver, 8 Watts & S. 106; Kuhn V. Nixon, 15 Serg. & R. 118, 125; Cope v. Smith's Ex'rs, 8 Serg. & R. 110, 115; Bixler v. Kunkle, 17 Serg. & R. 298, 303; Martzell v. Stauffer, 3 Penr. & W. 398, 401; Patterson v. Schoyer, 10 Watts, 333; Seitzinger v. Ridgway, 9 Watts, 496, 498; Cassell v. Jones, 6 Watts & S. 452 ; Torr's Estate, 2 Rawle, 552. §340, (a) See, also, Kussell v. 513; Wheeling, etc., B. E. Co. v. Baughman, 94 Pa. St. 400; Eennyson Gourley, 99 Pa. St. 171; Edwards v. V. Rozell, 106 Pa. St. 412; Appeal of Morgan, 100 Pa. St. 330; Elbert v. Fidelity, etc., Deposit Co., 99 Pa. St 443; Hall's Appeal, 112 Pa. St. 54 Eowand v. Finney, 96 Pa. St. 192 Kensinger v. Smith, 94 Pa. St. 384 Winpenny v. Winpenny, 92 Pa. St 440; Connolly v. Miller, 95 Pa. St O'Neil, 102 Pa. St. 302; Wills v. Van Dyke, 109 Pa. St. 330; Bell v. Clark, 111 Pa. St. 92; Curry v. Curry, 114 Pa. St. 367; Reno v. Moss, 120 Pa. St. 49; Wylie v. Mausley, 132 Pa. St. 08; Barclay's Appeal, 93 Pa. St. 50. § 341 EQUITY JUEISPKUDENCB. 628 § 341. Separate Equity Jurisdiction Given by Statutes. A change at length took place in the legislative policy. The statutes cited in the preceding section show that, as the first step, a few specified and distinctively equitable powers were conferred upon a certain court of limited territorial jurisdiction. The court, thus clothed with this new authority, was thereby enabled to entertain equitable^ suits and to administer equitable reliefs, according to the course and proceeding in chancery. The same powers were subsequently given to other tribunals. In the prog- ress of time, and by successive enactments, the equitable powers themselves were gradually enlarged and multiplied, until by the latest statute of the series, passed at quite a re- cent date, a full equitable jurisdiction is granted to all the courts of original general jurisdiction throughout the state. It is settled with absolute unanimity of decision that these statutory grants of a distinctive chancery jurisdiction, and the equity functions conferred thereby, do not in the least abridge, interfere with, or affect the powers always hereto- fore held by the courts of applying equitable doctrines and administering equitable reliefs through the means of legal actions and as a part of the law; this peculiar province of the courts still remains unchanged by the modem legisla- tion. The total result seems to be that the courts of Penn- sylvania in reality' possess two equitable jurisdictions, — the one arising from their own judicial action, and exercised in combination with the law, according to the methods and procedure of common-law actions ; the other expressly con- ferred by the statutes, and exercised by means of proper suits in equity, according to the methods and procedure of the court of chancery.^ I will merely remark, in conclusion, § 341, 1 See ante, § 286, note. With reference to the amount and ex- tent of the distinctively chancery jurisdiction given by the legislature, the earlier statutes of the series were strictly interpreted. The courts invariably refused to exercise any powers under them except those which were expressly conferred; enlarging their jurisdiction by implication was steadily resisted. Under the later and more comprehensive enactments, 629 JUDICIAL INTERPRETATION OF JURISDICTION. § 342 that while the decisions of the Pennsylvania courts may be referred to as authorities upon the principles, doctrines, and rules of equity jurisprudence, — and many of them are exceedingly valuable from their breadth of view, — they are, from the necessities of their peculiar conditions, of com- paratively little value upon questions of the equitable juris- diction. This may at least be regarded as true of the de- cisions made prior to the latest statutes conferring a general jurisdiction in chancery. § 342. The Other States— What States Included in This Division. — In describing the extent of the equitable juris- diction as established by judicial decision in the remaining states, I may, for all the purposes of the present inquiry, a full equitable jurisdiction is asserted, subject to the limitation inherent in the very conception of equity jurisdiction, that an adequate remedy cannot be obtained at law. This limitation, however, is liberally dealt with, and is not treated as having received any larger or more imperative or restrictive force from the statute. I collect the cases into two gi'oups : 1. Those which hold that the ancient and peculiar equitable functions of the court and the system of applying equitable doctrines in adminis- tering the law remain unaffected; and 2. Those which deal with the ex- tent of chancery jurisdiction granted by the statutes. The latter group are arranged chronologically. 1. Cases relating to the general effect of the statutes upon the former equity system: Church v. Ruland, 64 Pa. St. 432, 441; Hauberger v. Root, 5 Pa. St. 108, 112; Robinson v. Buck, 71 Pa. St. 386, 391; Biddle v. Moore, 3 Pa. St. 161, 176; Aycinena v. Peries, 6 Watts & S. 243, 257; Wesley Church v. Moore, 10 Pa. St. 273 ; Painter v. Harding, 3 Phila. 59. 2. Cases relating to the extent and amount of equity jurisdiction : Gil- der v. Merwin, 6 Whart. 522, 540-543 ; Dalzell v. Crawford, 1 Pars. Cas. 37, 41 ; Comm. v. Bank of Pa., 3 Watts & S. 184, 193 ; liagner v. Hey- terger, 7 Watts & S. 104, 106; Bank of U. S. v. Biddle, 2 Pars. Cas. 31 Bank of Ky. v. Schuylkill Bank, 1 Pars. Cas. 181, 219; Kirkpatrick v McDonald, 11 Pa. St. 387, 392; Skilton v. Webster, Bright. N. P. 203 Strasburgh R. R. Co. v. Ecliternaeht, 21 Pa. St. 220, 60 Am. Dec. 49 Mulvany v. Kennedy, 26 Pa. St. 44; Patterson v. Lane, 35 Pa. St. 275 Gallagher v. Fayette Co. R. R., 38 Pa. St. 102 ; Hottenstein v. Clement, 3 Orant Cas. 316 ; Gloninger v. Hazard, 42 Pa. St. 389, 401 ; Weir v. Mun- 30 Miss. 177; Haynes v. Thompson, 34 Miss. 17; Boyd v. Swing, 38 Miss. 182; Barnes v. Lloyd, 1 How. 584; Freeman v. Guion, 11 Smedes & M. 58, 65 (all the foregoing cases deal with the question of there being an adequate remedy at law or not) ; Farish v. State, 2 How. 826, 829; Farish V. State, 4 How. 170, 175. See, also, cases cited post, § 350, in note, as to the jurisdiction in the administration of decedents' estates. Missouri. — A full general jurisdiction as held by the English chancery: Clark V. Henrj-'s Adm'r, 9 Mo. 336, 339 ; Cabanne v. Lisa, 1 Mo. 682 ; Jan- ney v. Spedden, 38 Mo. 395; Biddle v. Ramsey, 52 Mo. 153; Meyers v. Field, 37 Mo. 434, 441; Maguire v. Tyler, 47 Mo. 115, 128; Lackland v. Garesche, 56 Mo. 267, 270. £ Nebraska. — A full jurisdiction administered by the single civil action: Wilcox v. Saunders, 4 Neb. 69. Nevada. — ^A full equity jurisdiction administered by the single civil ac- tion in all cases where there is not a complete, certain, and adequate remedy at law: Champion v. Session, 1 Nev. 478; Shei-man v. Clark, 4 Nev. 138, 97 Am. Dec. 516 ; Conley v. Chedic, 6 Nev. 222. New Hampshire. — See atite, § § 299-310, and notes. New Jersey. — A full general jurisdiction held and exercised to the same extent and under the same limitations as by the English court of chancery. § 345, (*) Montana. — See Zimmerman v. Zionmerman, 7 Mont. 114, 14 Pac. 665. 639 JUDICIAL INTERPRETATION OF JURISDICTION. § 346 quently demands the attention of the chancery courts, than the accounting, final settlement, and administration of the personal estates of decedents. A very large percentage of the suits brought in the English equity tribunals are admin- The whole course of decisions in the chancery court assumes such a juris- diction, although it is not defined by any legislation, and seldom by any judicial opinion: Jackson v. Darcy, 1 N. J. Eq. 194; Wooden v. Wooden, 3 N. J. Eq. 429; Hopper v. Lutkins, 4 N. J. Eq. 149; Hoagland v. Town- ship, etc., 17 N. J. Eq. 106; Winslow v. Hudson, 21 N. J. Eq. 172. In 19 N. J. Eq., at page 577, may be found an interesting history of the chan- cery court in New Jersey, written by Mr. Chancellor Zabriskie, and pub- lished as an appendix to the volume. See, also, post, § 350, and note, for decisions concerning the jurisdiction in the administration of decedents' estates. New York. — An equity jurisdiction commensurate with that of the English chancery is expressly given by the legislation. It follows that the supreme court, and the other tribunals of the same original jurisdiction with reference to subject-matter, although somewhat restricted as to per- sons within certain territorial districts, possess all the jurisdiction which was held by the equity courts of the colony at any time, and which was held by the high court of chancery in England on the fourth day of July, 1776, with the exceptions, additions, and limitations created and imposed by the legislation of the state. This jurisdiction is now exercised by means of the single "civil action." It will be seen that the only material excep- tion or limitation created by the state legislation consists in the practical withdrawal of the control of administrators from the courts of equity, and the placing of that important branch of equity jurisprudence under the cognizance of the probate or surrogates' courts. The decisions involv- ing the general question of jurisdiction are exceedingly numerous, but they all show that the equitable powers are to be exercised in eveiy case where there is no complete, certain, and adequate remedy at law, but that this limitation is treated as an essential element of the original jurisdiction of chancery, and not as abridging or curtailing that jurisdiction : Sherman v. Felt, 2 N. Y. 186; Newton v. Bronson, 13 N. Y. 587, 591, 67 Am. Dec. 89; Barlow v. Scott, 24 N. Y. 40, 45; Wilcox v. Wilcox, 14 N. Y. 575, 579; Gareie v. Freeland, 1 N. Y. 228, 232, 235; Burch v. Newbury, 10 N. Y. 374, 387; Onderdonk v. Mott, 34 Barb. 106, 112; Boyd v. Dowie, 65 Barb. 237, 242; Brockway v. Jewett, 16 Barb. 590, 592; Gareie v. Sheldon, 3 Barb. 232; Matter of Bookhout, 21 Barb. 348, 349; De Hart v. Hatch, 3 Hun, 375, 380 ; Matter of McConihe v. Exchange Bank, 49 How. Pr. 422, 424: Fellows v. Herrmans, 13 Abb. Pr., N. S., 1, 6; Van Pelt v. U. S. Metallic Springs, etc., Co., 13 Abb. Pr., N. S., 325, 327. In Youngs \. § 346 EQUITY JURISPRUDENCE. 640 ifctration suits. I shall not attempt to discuss tlie origin of this jurisdiction over administrations. By some judges it has been described as a natural outgrowth of the authority over trusts ; by others, as resulting from the frequent neces- sity of applying to the court of chancery for a discovery of Carter, 10 Hun, 194, 197, it was held that the equity jurisdiction thus given "includes of necessity all cases properly comprehended within estab- lished principles of equity jurisprudence. Nor can the test of the juris- diction be restricted to the existence of some definite precedent for the action which may be brought; the case need only fall within the limits of any defined equitable principle; and equitable principles are as broad as the just wants and necessities of civilized society require." This is, in my opinion, a correct description of the equitable jurisdiction as it now exists in all the states of the three classes under consideration. Compare the equally correct views of Mr. Justice Currey, in Dougherty v. Creary, 30 Cal. 290, 297, 89 Am. Dec. 116. North Carolina. — Complete jurisdiction exercised according to the in- herent limitation when there is no certain and complete remedy at law, enforced at present by the one "civil action" : Glasgow v. Flowers, 1 Ha3Tv. (N. C.) 233; Perkins v. Bullinger, 1 Hayw. (N. C.) 367; Martin v. Spier, 1 Hayw. (N. C.) 369; Wells v. Goodbread, 1 Ired. Eq. 9; Thorn v. Will- iams, 1 Car. Law Rep. 362; Hook v. Fentress, Phill. Eq. 299, 233; Powell V. Howell, 63 N. C. 283. Ohio. — The equitable jurisdiction is the same as that held by the English chancery. The early statute confining the jurisdiction to the cases where there is no plain and adequate remedy at law merely states an essential rule, and leaves the jurisdiction in exactly the same condition which it would have occupied had there been no such express statutory provision : Hulse V. Wright, Wright, 61, 65 ; Bank of Muskingum v. Carpenter's Ad- ministrator, Wright, 729, 732; Critchfield v. Porter, 3 Ohio, 518, 522; Oliver V. Pray, 4 Ohio, 175, 192, 19 Am. Dec. 595; Heirs of Ludlow v. Johnson, 3 Ohio, 553, 561, 17 Am. Dec. 609 ; Cram v. Green, 6 Ohio, 429, 430 ; Mawhorter v. Armstrong, 16 Ohio, 188 ; Douglas v. Wallace, 11 Ohio, 42, 45; Nicholson v. Pim, 5 Ohio St. 25; Lessee of Love v. Truman, 10 Ohio St. 45, 55; Clayton v. Frat, 10 Ohio St. 544, 546; Goble v, Howard, 10 Ohio St. 165, 168 ; Hager v. Reed, 11 Ohio St. 626, 635 ; Dixon v. Cald- well, 15 Ohio St. 412, 415, 86 Am. Dec. 487. Oregon.— See ante, § 344, and note; Howe v. Taylor, 6 Or. 284, 291, 292; Wells, Fargo & Co. v. Wall, 1 Or. 295; Hatcher v. Briggs, 6 Or. 31, 41. South Carolina. — See ante, § 344, and note; Hall v. Joiner, 1 S. C. 186, 190; Eno v. Calder, 14 Rich. Eq. 154; Mattison v. Mattison, 1 Strob. Eq. 387, 391, 47 Am. Dec. 541. See, also, 1 Desaus. Eq. lii., for a sketch of the chancery jurisdiction in this state. 641 JUDICIAL INTERPRETATION OF JURISDICTION. § 346 assets; by all, it is admitted that no adequate relief could be obtained from the common law or tlie ecclesiastical courts. "Whatever be the correct explanation, the result was that the equitable jurisdiction of administrations, though often called concurrent, practically became exclu- sive. Tennessee. — A complete general equitable jurisdiction exercised under the inherent limitation that no certain and adequate remedy can be had at law: Dibrell v. Eastland, 3 Yerg. 533, 535; University v. Cambreling, 6 Yerg. 79, 84; Porter v. Jones, 6 Cold. 313, 317; Almony v. Hicks, 3 Head, 39, 42.» Texas. — There is not in the jurisprudence of this state any clear line of distinction between "law" and "equity," either with reference to the rules which define and determine primary rights and duties, or those which regu- late remedies and procedure. Although the principles of the common law have been adopted by statute, yet they are blended with and modified by equity. This "equity" seems in part to be the natural justice of the civilians, but also in large part the equitable jurisprudence developed by the English court of chancery. It may with accuracy be said that the courts of Texas have full jurisdiction to recognize and give effect to any principles and doctrines of the equity jurisprudence to maintain any equitable rights, and to gi'ant any equitable remedies. All rights and remedies, whether legal or equitable, are administered together by one ac- tion and in the same modes of procedure. These conclusions will be found fully sustained by the following decisions, and are assumed or implied in a great number of other cases: Ogden v. Slade, 1 Tex. 13, 15; Smith v. Clopton, 4 Tex. 109, 113; Spann v. Stem's Administrators, 18 Tex. 556; Seguin v. Maverick, 24 Tex. 526, 532, 76 Am. Dec. 117; Herrington v. Williams, 31 Tex. 448, 460, 461; Jones v. McMahan, 30 Tex. 719, 728; Newson v. Chrisman, 9 Tex. 113, 117; Smith v. Smith, 11 Tex. 102, 106; Coles V. Kelsey, 2 Tex. 541, 553, 47 Am. Dec. 661 ; Carter v. Carter, 5 Tex. 93, 100; Wells v. Barnett, 7 Tex. 584, 586, 587; Purvis v. Sherrod, 12 Tex. 140, 159, 160. Vermont. — The decisions assume a full general equitable jurisdiction, with perhaps a somewhat greater weight given to the limitation that there is no adequate remedy at law than is given to it by the courts of many other states: Barrett v. Sargent, 18 Vt. 365, 369. ■ Wisconsin. — A full jurisdiction in all matters of equitable cognizance, administered by the "civil action": Janesville Bridge Co. v. Stoughton, 1 Pinn. 667; Danaher v. Prentiss, 22 Wis. 311. §345, (g) See, especially, J. W. 25 L. R. A. (N. S.) 201, 123 S. W. Kelly & €o. v. Oonner, 122 Tenn. 339, 622, 625. 1—41 § § 347, 348 EQUITY JUKISPRUDENCE. 642 § 347. Probate Courts. — From a very early period of our history the policy has prevailed throughout the states of legislating with respect to the subject of administrations. This policy has been pursued with such uniformity and to 6uch an extent, that in all the states, I believe without ex- ception, special tribunals, unknown to the ancient judicial system of England, have been created, under different names, — probate courts, surrogates' courts, orphans^ courts, — which possess a statutory jurisdiction over all matters of probate and administration, the proof of wills, the appointment of executors and administrators, the ac- counts of executors and administrators, the final settlement and distribution of the estates of deceased persons, both testate and intestate, and many other kindred subjects. Not only have such courts been established, but in very many states the doctrines and rules of the law regulating the administration of decedents' estates, whether testate or intestate, have been reduced to a statutory and often to a minutely codified form. The provisions of these statutes are to a large extent the principles and doctrines concern- ing the subject-matter which have been settled by the Eng- lish and American courts of equity through a long course of decision. The effect of this entire legislation upon the equitable jurisdiction existing in the same states remains to be considered. § 348.a Class First. Ordinary Equity Jurisdiction Over Administrations Abolished. — The general effect produced by this legislative system may be briefly stated in one prop- osition. In a great majority of the states the original equi- table jurisdiction over administrations is in all ordinary cases — that is, in all cases without any special circum- stances, such as fraud, or without any other equitable fea- ture, such as a trust — either expressly or practically abro- gated. The courts of equity, in the absence of such special § 348, (a) This and the two follow- v. Wilkinson, 199 Fed. 673, 118 C. C. ing paragraphs are cited in Newberry A. 111. 643 JUDICIAL INTERPRETATION OF JURISDICTION. § 348 circumstances or distinctively equitable feature, either do not possess or will not exercise the jurisdiction, but leave the whole matter of administrations to the special probate tribunals. To describe this result more accurately, the states must be separated into two divisions. In the one class, the statutes creating the probate courts and defining their powers are drawn in such mandatory terms that the jurisdiction conferred upon them is held by the judicial in- terpretation to be exclusive; and no concurrent jurisdiction over administration is possessed by the courts of equity in any case, unless it involves some additional incident or fea- ture — such as trust or fraud — which of itself, and inde- pendently of the administration, would be a sufficient ground for the interference of an equity court. In other words, this most important and extensive department has been completely cut off from the purely equitable jurisdic- tion, and transferred to that of the probate courts, although most of the doctrines concerning administration in general, hitherto settled by the courts of equity, and which form an integral part of the equity jurisprudence, have been pre- served and made more compulsory in the statutes which regulate the proceedings and furnish rules for the decisions of these special probate tribunals. ^ § 348, 1 The decisions by which the result described in the text has been accomplished throughout the various states composing this class are col- lected and compared in this note. Mississippi. — This view of the equitable jurisdiction for a long time pre- vailed in the state of Mississippi and was regarded as settled in the fol- lowing among many other cases : Gilliam v. Chancellor, 43 Miss. 437, 448, 5 Am. Rep. 498; Blanton v. King, 2 How. 856; Carmichael v. Browder, 3 How. 252 ; but by an alteration in the statutes, and a change in the judicial interpretation, and especially by the latest constitution reconstructing the judiciary, this theory has been abandoned, and the original jurisdiction of equity over administrations has been fully re-established, as will appear in the note under the next paragraph. The line of decisions, of which the above are examples, have therefore been overruled. Pennsylvania. — The doctrine of the text is firmly settled in this state by numerous decisions, of which the following are among the most recent. § 349 EQUITY JURISPRUDENCE, 644 '§ 349. Class Second. Such Jurisdiction Practically Ob- solete. — In the other and more numerous division, the stat- utes creating the probate courts and defining their powers are not so negative and mandatory in their terms that they ipso facto render the probate jurisdiction absolutely exclu- sive. The equitable jurisdiction is theoretically left exist- ing, and is sometimes spoken of as "concurrent with," and sometimes as "auxiliary to," that of the probate courts. Practically, however, it is abolished, or perhaps it would be more strictly accurate to say that its exercise is sus- pended, in all ordinary cases. The meaning of this propo- sition as explained in varying language by different judges is, that unless the case involves some special feature or exceptional circumstances of themselves warranting the in- terference of equity, such as fraud, waste, and the like, or unless it is of such an essential nature that a probate court is incompetent to give adequate relief, or is one of which the probate court, having taken cognizance, has completely miscarried and failed to do justice by its decree, the courts of equity will refuse to interpose and to exercise whatever dormant powers they may possess, but will leave the subject-matter and the parties to the jurisdiction of the statutory forum, which the legislature plainly regarded aa sufficient and intended to be practically exclusive. Accord- ing to this theory, the courts of equity do not deny the existence of any jurisdiction over administrations; but they treat their own jurisdiction as auxiliary and supple- mentary, and not as concurrent, only to be exercised in the exceptional cases where the probate jurisdiction is Dundas's Appeal, 73 Pa. St. 474, 479; Linsenbigler v. Gourley, 56 Pa. St. 166, 172, 94 Am. Dec. 51; Whiteside v. Whiteside, 20 Pa. St. 473, per Black, C. J.; Campbell's Appeal, 80 Pa. St. 298. Massachusetts. — This state may also be included in the class, although the extent of its equitable system has already been described: Wilson v. Leisman, 12 Met. 316. See quotations from the opinion in note under §320. 645 JUDICIAL INTERPRETATION OF JURISDICTION. § 349 confessedly inadequate, or has actually shown itself in- sufficient. ^ * § 349, 1 The following states properly belong to this division, although it will be seen by examining the decisions that a somewhat varying lan- guage has been employed by different courts to describe the condition of the jurisdiction : Arkansas. — In Haag v. Sparks, 27 Ark. 594, it was held that generally sourts of equity will not take jurisdiction of an administration when it is before the probate court; citing Moren v. McCown, 23 Ark. 93; Free- man V. Reagan, 26 Ark. 373. But when the circumstances are special, and the probate court cannot give adequate relief, equity will take juris- diction. In Freeman v. Reagan, 26 Ark. 373, 378, the rule was stated that courts of chancery will not, in general, take jurisdiction of an ad- ministration going on before the probate court; but still there may be cases of fraud, waste, etc., which would enable courts of chancery to inter- fere, and exercise powers not held by the probate court. In applying this rule, it may be remarked that whenever a probate court has, in any case, issued letters testamentary or of administration, admitted a will to probate, or taken any other judicial step, the administration will then be "pending" or "going on before" such probate court within the meaning of the language above quoted. Connecticut. — Bailey v. Strong, 8 Conn. 278, 280. Georgia.— B.arris v. Tisereau, 52 Ga. 153, 159-163, 21 Am. Rep. 242, The probate court has, in all ordinary eases, an exclusive jurisdiction in the probate of wills, in the appointment of executors and administrators, and in administrations ; citing Georgia Code, § 331 ; Slade v. Street, 27 Ga. 17; and Walton v. Walton, 21 Ga. 13. But equity has full jurisdiction in all cases of fraud ; and where fraud thus exists, it may draw after it as an incident a jurisdiction over matters of administration. It had been held in an early case, decided under a former statute, that the original juris- diction of equity in administrations still existed in Georgia : Walker v. Morris, 14 Ga. 323, 325-327; but this decision is no longer an authority. See, also, Collins v. Stephens, 58 Ga. 284. Illinois. — Heustis v. Johnson, 84 111. 61; Freeland v. Dazey, 25 111. 294. In Heustis v. Johnson, 84 111. 61, which was a suit in equity against an administrator for a final accounting and settlement, the court stated the rule : "Courts of equity wiU not exercise jurisdiction over the adminis- tration of estates except in extraordinary cases. Some special reason must be shown why the administration should be taken from the probate court ;" citing Freeland v. Dazey, 25 111. 294; and see Strubher v. Belsey, 79 III. § 349, (a) The text is quoted and followed in Welsh v. Krause, 38 S. D. 264, 161 N. W. 189. § 350 EQUITY JURISPRUDENCE. 646 §350. Class Third. Such Jurisdiction Existing and Concurrent. — There is, however, still a third division, com- prising a few of the states, in which, notwithstanding the probate courts with all the powers given them by statute, the original and full equitable jurisdiction over administra- tions is held to remain unimpaired. The authority of 307, 308. And yet in Heward v. Slagle, 52 111. 336, which was an appeal by the distributees (or heirs) from a decree of the probate court finally settling the administrator's accounts, the supreme court said: ''When the probate court has settled an administrator's account, and discharged the administrator, and the heirs are dissatisfied and wish a review and resettle- ment, and the estate is complicated, the better mode is by a bill in chancery, and not by appeal from the probate court." New Jersey.— Frey v. Demarest, 16 N. J. Eq. 236, 239. For a state- ment of this decision and a more full explanation of the rule which seems to prevail in New Jersey, see the note under the next succeeding paragraph. New Torfc.— Chipman v. Montgomery, 63 N. Y. 221, 235, 236. Since this decision is quite recent, and since the reasoning and conclusions of the court will apply with equal force to the legislation of many other states besides New York, and fully illustrate the propositions of the text, I shall quote from the able opinion of Allen, J., at some length. The suit was equitable, brought by next of kin against an executor, praying various kinds of relief. In dismissing the suit, the court, by Allen, J., said (pp. 235, 236) : "Again, as an action for accounting as to the personalty, as in case of intestacy, the action ought not to be sustained. The laws give full powers to the surrogate's court to call executors and adminis- trators to account, and to distribute the estate among the next of kin, and to pass upon every question that may arise, directly or indirectly, in the progress of the accounting and final distribution. That is the appropriate tribunal, conceding that, to a limited extent, concurrent jurisdiction exists in a court of equity. The jurisdiction of courts of equity in respect to accounts in the course of administration, and the marshaling of assets, grew out of the defects in the process and powers of ecclesiastical courts, and the early courts of probate. The jurisdiction over cases of adminis- tration was made to rest upon the notion of a constructive trust in execu- tors and administrators, as well as the necessity of taking accounts and compelling a discovery. But these considerations do not apply in ordinary cases to the settlement of estates in this state; and to withdraw a case of mere settlement of an estate, disconnected with the enforcement of a spe- cial and express trust, as distinguished from what is called a constructive trust in all administrations, from the tribunal created for that purpose with ample powers, special reasons should be assigned, and facts stated 647 JUDICIAL INTERPRETATION OF JURISDICTION. § 350 courts of equity over the general subject of administration, which forms a part of the unabridged system of equity jurisprudence, still continues in those tribunals concurrent with that conferred upon the probate courts, and it may be exercised even though the case does not involve any spe- cial incidents or features which of themselves would consti- to show that full and complete justice cannot be done in that court. Upon a final accounting, — and that is what the plaintiffs are entitled to if they have any rights as next of kin,— creditors, as well as legatees and next of kin, are entitled to be heard; and they may much more easily be cited be- fore a surrogate than made parties to a formal suit in equity. Chancellor Kent recognizes the rule that creditors may come into the court of chancery for the discovery of assets; but that draws the whole settlement of the estate into chancery, which certainly is not to be encouraged : Thompson v. Brown, 4 Johns. Ch. 619. In Seymour v. Seymour, 4 Johns. Ch. 409, the chancellor refused to take jurisdiction, and interfere with the ordinary ex- ercise of the powers of the surrogate in the settlement of the accounts of administrators and the distribution of the estate, without some special reasons set forth in the bill. The province of the court of chancery was to aid by a discovery, and when necessary by injunction, the courts of surrogates in the exercise of their general powers, and the jurisdiction should be regarded rather as auxiliary than concurrent. But there is no action now possible for a discovery, and the plaintiffs do not make a case for or ask for an injunction. It is not optional with executors and admin- istrators accounting on their own motion, or creditors, legatees, or next of kin calling them to an accounting, to pass by the surrogate's court having ample jurisdiction in the premises, and, without assigning any special reasons, proceed by formal action in equity, making all persons whose presence is necessary to a final accounting parties to the action. It would be unreasonable to subject the parties to the vexation and- delay, and the estate to the unnecessary costs, of such a litigation: Adams v. Adams, 22 Vt. 50." Ohio— Fiatt v. Longworth's Ex'rs, 27 Ohio St. 159, 186 : "Since the act of 1853, the probate court has exclusive jurisdiction of the settlement of the accounts of executors and administrators. When that remedy proves inadequate, the aid of a court of equity may be invoked." Rhode Island. — Blake v. Butler, 10 R. I. 133, 137, 138. An adminis- trator had filed his accounts in the probate court, and a final decree of settlement and distribution had been made therein. The plaintiffs — next of kin — appealed to the supreme court under the statute. Pending this appeal the plaintiffs commenced a suit in equity in the supreme court against the administrator, charging fraud in the administration and in his § 350 EQUITY JURISPRUDENCE. 648 tute distinctive and independent grounds of equitable inter- ference. This continued existence of an active equitable jurisdiction results in some instances from positive provi- sions of the legislation, in others from the merely permis- sive terms of the statute defining the powers of probate courts, or perhaps from the absence of any negative or suffi- ciently mandatory language.^ accounts, and praying for general relief, an accounting, and settlement. The sui^reme court held that it had no jurisdiction of the suit under such circumstances; that the plaintiff could obtain full relief in the probate court or on the appeal; that the jurisdiction in equity is only concurrent with that of the probate court, and the jurisdiction of the probate court having first attached thereby became, under a general principle, exclusive. According to this decision, the doctrine adopted in Rhode Island is, per- haps, not in full harmony with the proposition formulated in the text; it appears that equity has an active concurrent jurisdiction over adminis- trations, and may regulate and decree the settlement of decedents' estates. Still, the state can hardly be regarded as fully belonging to the third class, described in the next succeeding paragraph. § 350, 1 The following states may properly be placed in this division : — Mississippi. — Walker v. State, 53 Miss. 532, 535 ; Bank of Miss. v. Dun- can, 52 Miss. 740; Brunini v. Pera, 54 Miss. 649; Evans v. Robertson, 54 Miss. 683, In Walker v. State, 53 Miss. 532, the court held that under the constitution of 1832, the rule was settled that chancery had no juris- diction of administration, but that the jurisdiction belonged exclusively to courts of probate. Under the present constitution, such original juris- diction has been restored to courts of equity, and they may entertain suits for administration proper, and also suits upon administration bonds against the administrator or executor and his sureties. The same ruling is repeated in the other cases cited, and a long line of previous decisions is of course overruled. Neio Jersey.— Trey v. Demarest, 16 N. J. Eq. 236, 238, 239. In this carefully considered case, the court expressly holds that the concurrent jurisdiction of equity with the probate courts over the administration of assets has long been well settled, and may be exercised on behalf of lega- tees, next of kin, creditors, and executors or administrators. The suit by a next of kin for his share was established in the reign of Charles II. In New Jersey, the equity jurisdiction over the accounts of executors and ad- ministrators, and to enforce the claims of creditors, legatees, and next of kin, has been repeatedly affirmed and is constantly exercised; it is well settled, and also its limitations; citing Meeker v. Marsh, 1 N. J. Eq. 198; King V. Ex'rs of Bei-ry, 3 N. J. Eq. 44, 261; Salter v. Williamson, 2 649 JUDICIAL INTERPBETATION OF JUEISDICTION. § 351 § 351. Special Subjects of Equitable Cognizance in Aid of Administrations. — While the original jurisdiction of equity over the subject of administration in general is thus abolished in so many states, the power to interfere for some special and partial purpose, or to grant some special and partial relief in the course of the administration and settlement of decedents' estates, exists in all the common- wealths as a part of the general functions belonging to equity courts.^ The jurisdiction over estates, interests, and primary rights purely equitable, and to administer equi- table remedies, is nowhere lost merely because the interest, right, or remedy grows out of or is connected with the estate of a deceased person which is in the course of ad- ministration, even though the administration proper, the accounting, and final settlement are carried on under the exclusive supervision of another tribunal. In all such cases the jurisdiction must, of course, be based upon some dis- tinctive and independent ground or matter of equitable cog- nizance, and its exercise may then result in a remedy which is a material aid f o a pending administration, or which re- moves an impediment from the final settlement of an estate ; N. J. Eq. 480, 489, 35 Am. Dec. 513; Smith v. Moore's Ex'rs, 4 N. J. Eq. 485; Van Mater v. Siekler, 9 N. J. Eq. 483; Clark v. Johnston, 10 N. J. Eq. 287. To this explicit statement of the doctrine, the court adds a conclu- sion which may seem somewhat inconsistent with it : "But, unless for some special cause, a court of equity will not interfere with the ordinary juris- diction of the probate court in the settlement of the accounts of adminis- trators or executors." Rhode Island.— Blake v. Butler, 10 E. I. 133, 137, 138. See the state- ment of this case and comments upon it in the note under the preceding paragraph. It appears that in Rhode Island the equitable jurisdiction of the supreme court is concurrent, and of course may be exercised ; but if the probate court has already taken cognizance of a particular adminis- tration, equity will not then interfere, unless for some special and excep- tional reason, but will leave the matter under the exclusive control of the probate tribunal. § 351, (a) The text is quoted in generally, in Cook v. Warner, 41 Okl. Settle V. Settle, 141 N. C. 553, 54 781, 140 Pac. 424. S. E. 445. This paragraph is cited, § 351 EQUITY JURISPRUDENCE. 650 as, for example, the construction of a will containing trust provisions, the enforcement of trusts created by a will, the establishment of a will lost or fraudulently destroyed, the canceling and setting aside a fraudulent transfer made by an executor or administrator, and the like. Wliile these and similar instances of the reliefs which may always be furnished by courts of equity are not in any sense parts of or derived from the original jurisdiction over adminis- trations, and have not therefore been withdrawn from the courts by the legislation on the subject,^ yet they may prop- erly be regarded as incidental and auxiliary to that juris- diction, even where it has been exclusively intrusted to the probate tribunals. In some of the states belonging to the second division as described above, where the general equity jurisdiction over administrations is not absolutely abolished, but is rather suspended or dormant, when such a suit is properly brought to obtain a particular relief which necessarily operates to aid some pending administra- tion, or to remove some obstacle from its completion, the rule is settled, in accordance with a familiar principle,^ that the court, having thus acquired a partial jurisdiction over the subject-matter, or for a partial purpose, will go on and decree full and final relief. The court will there- fore, in addition to the particular remedy demanded, take control of the entire administration; will even withdraw it from the probate court if already begun therein, and to that end will enjoin all further proceedings before such tribunal, and will order a final accounting ancj decree a final settle- ment and distribution, whether the deceased died testate or intestate. 2 c § 351, 1 See ante, chap. II., see. iii., §§ 231-243. § 351, 2 Alabama. — Pearson v. Darrington, 21 Ala. 169, 176, holds that equity has jurisdiction of a suit brought to settle the accounts of compli- § 351, (b) See, by way of illustra- § 351, (c) The text is quoted in tion, Howell v. Moores, 127 111. 67, Settle v. Settle, 141 N. C. 553, 54 19 N. E. 863, citing th© text; ante, S. E. 445. §280. 651 JUDICIAL INTERPRETATION OF JURISDICTION. § 352 § 352. Any discussion at present "of the cases in which a court of equity may thus interfere and grant particular reliefs connected with a pending administration, which will operate in aid of its complete settlement, would necessarily require me to anticipate many subjects properly belonging to subsequent portions of this work ; I have, therefore, for the purpose of more clearly explaining the statements of the preceding paragraph, merely placed in the foot-note a few examples which will sufficiently illustrate the meaning of the text.i ^ There are a few states in which, by the cated transactions entered into by an administrator, and to enforce the due execution of tnists created by a will; and when it takes jurisdiction in such a case by the commencement of a suit, the whole administration is thereby withdrawn from the probate court : Cowles v. Pollard, 51 Ala. 445, 447. When the trusts of a will are doubtful, equity has jurisdiction to construe the will and to direct the executor in the execution of its pro- visions: Sellers v. Sellers, 35 Ala. 235; Trotter v. Blocker, 6 Port. 269. And when chancery takes jurisdiction upon any such independent ground of equitable cognizance, it will retain the entire administration and decree a final settlement of the estate. In such a case the court of equity will apply the same rules of law concerning the settlement of estates which would govern the probate court, but in its procedure will follow the methods and rules of chancery practice : Stewart v. Stewart, 31 Ala. 207 ; Wilson V. Crook, 17 Ala. 59 ; Hunley v. Hunley, 15 Ala. 91 ; Hall v. Wil- son, 14 Ala. 295 ; Taliaferro v. Brown, 11 Ala. 702. New Jersey. — Youmans v. Youmans, 26 N. J. Eq. 149; and Mallory v. , Craige, 15 N. J. Eq. 73. In a suit properly brought for the construction of a will, all parties being before the court, a final accounting by the executor and settlement of the estate will be decreed. § 352, 1 This jurisdiction, based upon distinct and independent grounds of equitable cognizance, to grant remedies which will more or less directly aid, or remove obstacles from, a pending administration is well settled, and constantly exercised for the following purposes, among others : To construe doubtful provisions of a will, and to direct the executors with respect to their duties when a trust is created by it; but there is no such equitable jurisdiction to interpret a will — or a deed— which only deals with and disposes of purely legal estates or interests, and which makes no attempt to create any trust relations with respect to the property donated. This special jurisdiction to interpret a will is wholly an outgrowth and applica- § 352, (a) The text and note are 667, 57 South. 442 (bill to construe cited in Ashurst v. Ashurst, 175 Ala. will). § 352 EQUITY JURISPRUDENCE. 652 operation of peculiar and mandatory language of the stat- utes, certain other subjects which belong to the equitable jurisdiction in its original form have been withdrawn from the cognizance of equity courts, and given into the exclu- sive control of special tribunals, ordinarily to those having probate powers; as, for example, the assignment of dower, tion of the general power over trusts: Chipman v. Montgomery, 63 N. Y. 221, 230 ; Bailey v. Briggs, 56 N. Y. 407 ; Post v. Hover, 33 N. Y. 593, C02, 30 Barb. 312, 324; Bowers v. Smith, 10 Paige, 194; Woodruff v. Cook, 47 Barb. 304; Onderdonk v. Mott, 34 Barb. 106; Walrath v. Handy, 24 How. Pr. 353 ; Cowles v. Pollard, 51 Ala. 445, 447 ; Youmans v. Youmans, 26 N. J. Eq. 149 ; Strubher v. Belsey, 79 111. 307, 308 ; Whitman v. Fisher, 74 111. 147; Simmons v. Hendricks, 8 Ired. Eq. 84, 85, 86, 55 Am. Dec. 439. The doctrine is clearly and concisely stated by Allen, J., in the recent ease of Chipman v. Montgomery, 63 N. Y. 221, and I quote a short passage from his opinion at page 230 : "The rule is, that, to put a court of equity in motion, there must be an actual litigation in respect to matters which are the proper subjects of the jurisdiction of that court as distinguished from a court of law. ... It is by reason of the jurisdiction of courts of chancery over trusts that courts having eqi;itable powers as an incident of that jurisdiction take cognizance of and pass upon the interpretation of wills. They do not take jurisdiction of actions brought solely for the construction of instruments of that character, or when only legal rights are in controversy. Judge Folger, in Bailey v. Briggs, 56 N. Y. 407, well expresses the rule in these words : 'It is when the court is moved on be- half of an executor, trustee, or cestui que trust, and to insure a correct ad- ministration of the power conferred by a will, that jurisdiction is had to. give a construction to a doubtful or disputed clause in a will. The juris- diction is incidental to that over trusts.' This is in accord with all the cases in which the question has been considered by the courts in this state." Suits based upon the actual fraud, misconduct, waste, or misappropriation of funds by the administrator or executor in the performance of his fiduciary duties, either to set aside transfers fraudulently made by him, or decrees of the probate court fraudulently obtained, or to reach property under his control belonging to the estate: Clark v. Henry's Adm'rs, 9 Mo. 336; Freeman v. Reagan, 26 Ark. 373, 378; Haag v. Sparks, 27 Ark. 594. Suits to establish a will which had been fraudulently destroyed : Harris V. Tisereau, 52 Ga. 153, 159-163, 21 Am. Rep. 242, holds that equity has full jurisdiction in all cases of fraud, except fraud in the execution of a will, and this includes fraud in the destruction of a will, notwithstanding 653 JUDICIAL INTERPRETATION OF JURISDICTION. § 353 and the partition of real estate. These instances, however, are so few and comparatively unimportant that they do not substantially affect the general system of equitable juris- diction existing throughout the country, and their con- sideration will be postponed to a subsequent chapter. The radical changes in the doctrines concerning trusts made by the legislation of several states belong rather to the equity jurisprudence than to the jurisdiction, and they will be fully described in the division of this work which treats of equi- table estates. § 353. States Which have Adopted the Reformed System of Procedure. — In dealing finally with the states composing this fourth class, I shall no longer inquire into the extent the jurisdiction over administrations given to the probate court. Suits to aid or remove an obstacle from the due course of administration, either by establishing or setting aside a settlement mfide by the decedent upon his wife, and by determining her rights under it, and to the estate : Campbell's Appeal, 80 Pa. St. 298. A husband had executed a post-nuptial settle- ment upon his wife, and afterwards died, leaving a will. The widow elected not to take under the will, claiming her dower and share of the personal property as though her husband had died intestate. She also brought suit in equity to set aside the post-nuptial settlement on account of fraud. The equitable jurisdiction was sustained; the decree would remove an obstacle to the settlement and distribution of the estate by the probate court, and it was not an invasion of the jurisdiction given to that tribunal over administration. And in Carmichael v. Browder, 3 How. (Miss.) 252, a portion had been given to a wife by a man-iage contract, and afterwards a legacy by her husband's will, which the executor claimed was intended to be in satisfaction of the portion, but the widow to be in addition thereto. A suit in equity to determine the rights of the widow under the nuptial contract and the will, and in the meantime to restrain her from suing in the probate court to recover her legacy, was sustained. Suits to recover distributive shares : In New Jersey, and perhaps in some other states, the rule still prevails that a next of kin may sue the adminis- trator in equity to recover his distributive share of the estate, although the courts of law and the orphans' court also have jurisdiction if there has been a decree for a distribution made in the administration; when no decree of distribution has yet been made, the only remedy of the next of kin is by such suit in equity: Dorsheimer v. Rorback, 23 N. J. Eq. 46; Frey y. Demarest, 16 N. J. Eq. 236, 238. § 354 EQUITY JURISPRUDENCE. 654 of the equitable jurisdiction as compared with that of the English court of chancery. The only question which now remains for consideration is, — assuming that either a full or a limited equitable jurisdiction had been conferred by the constitution or the statutes upon the courts of any state belonging to this class, — what is the effect produced upon the nature, extent, and exercise of such jurisdiction by the reformed procedure, which has abolished all distinctions between actions at law and suits in equity, and which pro- vides that all rights, legal and equitable, shall be main- tained, and all remedies, legal and equitable, shall be obtained, by means of the one civil action? It would be impossible, and indeed wholly unnecessary, for me to follow the course of judicial discussion and decision upon this question in each individual state; all that I can do is to formulate, in as brief and comprehensive terms as possible, the conclusions which have been reached by the courts in all the states of this class. § 354. Its General Effect on the Jurisdiction. — ^When- ever the judges of any state have dealt with this subject generally, whenever they have in general terms described the total effect of the reformed procedure upon the equity jurisprudence and jurisdiction, they have all used language of the same import and leading to the same result. From this entire course of judicial decision and dicta in all the states, the following proposition may be formulated as expressing the unanimous conclusion of the courts with respect to the general effect of the reformed procedure. The reformed procedure, in its abolition of all distinction between actions at law and suits in equity; in its abrogation of the common-law forms of action, and its institution of one "civil action" for all remedial purposes; in its allow- ing both legal and equitable rights to be maintained, and legal and equitable remedies to be conferred in combination by the single "civil action"; and in the uniform rules which it has established for the regulation of this civil action 655 JUDICIAL INTERPRETATION OF JURISDICTION. § 354 whenever and for whatever purposes it may be used, — pur- ports to deal with, and does in fact deal with, the procedure alone, with the mere instrumentalities, modes, and external forms by which justice is administered, rights are pro- tected, and remedies are conferred. The new system was not intended to affect, and does not affect, the differences which have heretofore existed, and still exist, between the separate departments of "law" and ''equity"; it was not intended to affect, and does not affect, the settled prin- ciples, doctrines, and rules of equity jurisprudence and equity jurisdiction. To sum up this result in one brief statement, all equitable estates, interests, and primary rights, and all the principles, doctrines, and rules of the equity jurisprudence by which they are defined, determined, and regulated, remain absolutely untouched, in their full force and extent, as much as though a separate court of chancery were still preserved. In like manner all equitable remedies and remedial rights, — that is, the equitable causes of action, and the rights to obtain the reliefs appropriate therefor, — and the doctrines and rules of equity jurispru- dence which define and determine these remedies and reme- dial rights, and the doctrines and rules of equity jurisdic- tion which govern and regulate, not the mere mode of obtaining them, but the fact of obtaining such remedies, also remain wholly unchanged, and still control the action of courts in the administration of justice. While the ex- ternal distinctions of form between suits in equity and actions at law have been abrogated, the essential distinc- tions which inhere in the very nature of equitable and legal primary or remedial rights still exist as clearly de- fined as before the system was adopted, and must continue to exist until t'he peculiar features of the common law are destroyed, and the entire municipal jurisprudence of the state is transformed into equity. If, therefore, the facts stated in the pleadings show that the primary rights, the cause of action, and the remedy to be obtained are legal, then the action is one at law, and falls within the jurisdic- § 354 EQUITY JURISPRUDENCE. 656 tion at law.^' If, on the other hand, the facts stated show that the primary rights, or the cause of action, or the remedy to be obtained are equitable, then the action itself is equitable, governed by doctrines of the equity juris- prudence, and falling within the equitable jurisdiction of the court. It should be carefully observed, however, that, under the reformed system of procedure, the same action may be both legal and equitable in its nature, since it may combine both legal and equitable primary rights, causes of action, defenses, and remedies. It is this fact which, more than any other, has tended to produce whatever confusion may have arisen in the actual workings of the new system. I have collected and arranged in the foot-note cases selected from the decisions of various states, by which the foregoing general conclusions are fully sustained.^ § 354, 1 My limits of space will not permit of much extended citation from judicial opinions, and I shall only quote a few passages which state the doctrines upon which the conclusions of the text are founded in a peculiarly clear and forcible manner. I have collected these cases accord- ing to the states, arranged in alphabetical order. Arkansas.— Talhot v. Wilkins, 31 Ark. 411, 422; Gantt's Dig., §§ 4461, 4463, 4464. California.— De Witt v. Hays, 2 Cal. 463, 468, 56 Am. Dec. 352, per Murray, C. J.; Smith v. Rowe, 4 Cal. 6; Grain v. Aldrich, 38 Cal. 514, 99 Am. Dec. 423; Wiggins v. McDonald, 18 Cal. 126; Bowen v. Aubrey, 22 Cal. 566, 569 ; White v. Lyons, 42 Cal. 279, 282. In two of these cases the whole theory, both in its positive and its negative aspects, was stated in so clear a manner that I may be permitted to make short extracts from the opinions, especially as other cases have, from necessity, only repeated the same conclusions. In De Witt v. Hays, 2 Cal. 463, 468, 56 Am. Dec. 352, Mr. C. J. Murray said : "The legislature, in providing that 'there shall be but one form of civil action/ cannot be supposed to have intended at one fell stroke to abolish all distinction between law and equity as to actions. Such a construction would lead to infinite perplexities and endless diffi- culties. ... So cases legal and equitable have not been consolidated; and though there is no difference between the form of a bill in chancery and a common-law declaration under our system, where all relief is sought in the § 354, (a) The text is quoted in ing that an action to enforce the stat- Myers v. Sierra Val. Stock & Agric. utory right of contribution among Assn., 122 Cal, 669, 55 Pac. 689, hold- stockholders is at law. C57 JUDICIAL INTERPRETATION OF JURISDICTION. § 355 § 355. Its Particular Effects. — While this iinanimons conclusion of the courts is, in general, correct; while, when we look at the effects of the reformed procedure as a whole, — en masse, — it is true that equity and the law remain same way from the said tribunal, the distinction between law and equity is as naked and broad as ever. To entitle the plaintiff to the equitable inter- position of the court, he must show a proper case for the interference of a court of chancei-y, and one in which he has no adequate or complete relief at law." In White v. Lyons, 42 Cal. 279, 282, Mr. Justice Crockett said : "Under the code there is but one form of action in this state. ... If the facts stated are such as addi'ess themselves to the equity side of the court, the appropi'iate relief will be granted by the court sitting as a court of equity. On the other hand, if the facts alleged are purely cognizable in a court of law, the proper relief will be administered in that form of proceeding." Indiana.— Matlock v. Todd, 25 Ind. 128, 130, per Elliott, J. ; Woodford V. Leavenworth, 14 Ind. 311, 314, per Worden, J.; Emmons v. Kiger, 23 Ind. 483, 487; Troost v. Davis, 31 Ind. 34, 39; Scott v. Crawford, 12 Ind. 411. Iowa. — Claussen v. Lafrenz, 4 G. Greene, 224, 225-227; Kramer v. Reb- man, 9 Iowa, 114; Laird v. Dickerson, 40 Iowa, 665, 669; Sherwood v. Sherwood, 44 Iowa, 192. Kansas. — Shoemaker v. Brown, 10 Kan. 383, 390; Sattig v. Small, 1 Kan. 170, 175. Kentucky.— Garret v. Gault, 13 B. Mon. 378, 380; Martin v. Mobile & O. R. R., 7 Bush, 116, 124; Richmond, etc., T. Co. v. Rogers, 7 Bush, 532, 535 ; Hord v. Chandler, 13 B. Mon. 403 ; Hill v. Barrett, 14 B. Mon. 67. Minnesota. — Gates v. Smith, 2 Minn. 30, 32; Guernsey v. Am. Ins. Co., 17 Minn. 104, 108 ; Montgomery v. McEwen, 7 Minn. 351. Missouri. — Henderson v. Dickey, 50 Mo. 161, 165; Lackland v, Garesche, 56 Mo. 267, 270; Magwire v. Tyler, 47 Mo. 115, 128; Meyers v. Field, 37 Mo. 434, 441 ; Richardson v. Means, 22 Mo. 495, 498 ; ]\Iaguire v. Vice, 20 Mo. 429 ; Rogers v. Penniston, 16 Mo. 432 ; and see also Curd v. Lackland, 43 Mo. 139 ; Wynn v. Cory, 43 Mo. 301 ; Gray v. Payne, 43 Mo. 203 ; Bobb V. Woodward, 42 Mo. 482, 487 ; Peyton v. Rose, 41 Mo. 257, 262 ; Gott v. Powell, 41 Mo. 416; Reed v. Robertson, 45 Mo. 580; Rutherford v. Will- iams, 42 Mo. 18, 23 ; Fithian v. Monks, 43 Mo. 502, 517. Nebraska. — Wilcox v. Saunders, 4 Neb. 569, 587. Nevada. — Crosier v. McLaughlin, 1 Nev. 348; Champion v. Sessions, 1 Nev. 478; Shennan v. Clark, 4 Nev. 138, 97 Am. Dec. 516; Conley v. Chedic, 6 Nev. 222. 1—42 § 355 EQUITY JURISPRUDENCE. 658 unchanged, — still, this proposition is not true in every par- ticular; there are some important and necessary limita- tions. When we descend from such a general survey of the entire domain, and make a close inspection of each portion New YorA;.— Reubens v. Joel, 13 N. Y. 488, 493, per S. L. Selden, J.; Voorhis V. Child's Ex'rs, 17 N. Y. 354, 357-362, per S. L. Selden, J.; Peck V. Newton, 46 Barb. 173, 174; Cole v. Reynolds, 18 N. Y. 74, 76; Lattin v. MeCarty, 41 N. Y. 107, 110, per Hunt, C. J.; Cropsey v. Sweeney, 27 Barb. 310; Dobson v. Pearce, 12 N. Y. 156, 165, 62 Am. Dec. 152; Crary v. Goodman, 12 N. Y. 266, 268, 64 Am. Dec. 506; N. Y. Cent. Ins. Co. V. Nat. Protect. Ins. Co., 14 N. Y. 85, 90; Bidwell v. Astor Ins. Co., 16 N. Y. 263, 267; Phillips v. Gorham, 17 N. Y. 270, 273, 275; Laub v. Buckmiller, 17 N. Y. 620, 626; N. Y. Ice Co. v. Northwest Ins. Co., 23 N. Y. 357, 359, 360; Brown v. Brown, 4 Rob. (N. Y.) 688, 701; Grinnell V. Buchanan, 1 Daly, 538; Ireland v. Nichols, 1 Sweeny, 208; Wright v. Wright, 54 N. Y. 437, 442; Giles v. Lyon, 4 N. Y. 600; Anderson v. Hunn, 5 Hun, 79 ; Barlow v. Scott, 24 N. Y. 40, 45 ; De Hart v. Hatch, 3 Hun, 375, 380; Wilcox v. Wilcox, 14 N. Y. 575, 579, 581. In the first two cases above cited (Reubens v. Joel, 13 N. Y. 488; Voorhis v. Child's Ex'rs, 17 N. Y. 354), Mr. Justice S. L. Selden undoubtedly carried this principle of interpreting the codes of procedure altogether too far. By his theory not only the inherent distinctions between law and equity are retained, but all the differences of external form between suits in equity and actions at law, and even among the various kinds of legal actions, are substantially preserved. While his views on this point have been rejected by all the authoritative decisions, his statement of the effect of the new system upon what is essential and inherent in the equity jurisprudence and jurisdiction is both accixrate and admirable. From this long list of New York decisions I will make one or two short quotations. Lattin v. McCarty, 41 N. Y. 107, is a very leading and authoritative case, because its facts presented the question in the most direct manner. Mr. C. J. Hunt said (p. 109) : "Assuming that the complaint does contain two causes of action, as is insisted, the judgment was still erroneous. The argument principally relied upon to sustain the demurrer is this, that the two causes of action are of different characters, one an action of eject- ment, being an action at law, the other an action to set aside a deed as fraudulent, and of an equitable nature; that the latter may be tried by the court, while in the former the party is entitled to have his case passed upon by a jury. The eodifiers labored assiduously to anticipate and to overrule this objection." He cites certain sections of the code, and pro- ceeds : "In these provisions and in others, the distinction between legal and equitable causes of action is recognized. There is no attempt to abolish 659 JUDICIAL INTERPEETATION OF JURISDICTION. § 355 in detail, we shall find that some modifications have been made in the body of equity jurisprudence. This result was in fact inevitable. Certain equitable interests and primary rights, and certain equitable remedies and remedial rights, this distinction, which would be quite unavailing. The attempt is to abolish the distinction between the forms of action and the modes of pro- ceeding in the several cases. The difficulty under consideration has been expressly overruled by this court in the eases that I shall presently cite." He cites several cases, all of which are placed in the above list. The case of Wright V. Wright, 54 N. Y. 437, is also a very instructive one. The action was by a wife against her husband upon a promissory note given by him to her before the marriage, and in contemplation thereof. The complaint was in the usual form of an action on a note, but stating the relation between the parties, and how the note was given. Reynolds, J., said (p. 442) : "While it is admitted that the rights of the plaintiff could be enforced by a suit in equity, yet it is insisted that this, being an action at law, cannot be maintained by a married woman against her husband. It might be asked hy what authority the defendant names this an action at law. What additional allegation in the complaint would have enabled the defendant to designate it as a suit in equity? While regard is still to be had in the application of legal and equitable principles, there is not of necessity any difference in the mere form of procedure so far as the case to be stated in the complaint is concerned. All that is needful is to state the facts sufficient to show that the plaintiff is entitled to the relief demanded; and it is the duty of the court to afford the relief without stopping to speculate upon the name to be given to the action. These prin- ciples have been frequently acted upon by the court. . . . When, as in our system, a single court has jurisdiction both in law and in equity, and administers ji;stice in a common form of procedure, the two jurisdictions of necessity became to some extent blended. This must be especially the result when the forms of pleading and proceeding are alike." I know of no opinion which more accurately and completely expresses the true intent and effects of the reformed procedure than this. In Wilcox v. Wilcox, 14 N. Y. 575, 579, 581, it was decided that individual judges act- ing in chambers have all the powers and functions which were possessed and exercised by the chancellor in chambers. Ohio— lUonne v. Bradstreet, 7 Ohio St. 322, 325; Lamson v. Pfaff, 1 Handy, 449, 452; McCrory v. Parks, 18 Ohio St. 1; Ellithorpe v. Bucks, 17 Ohio St. 72; Clayton v. Freet, 10 Ohio St. 544, 546; Goble v. Howard, 12 Ohio St. 165, 168 ; Hager v. Reed, 11 Ohio St. 626, 635 ; Dixon v. Caldwell, 15 Ohio St. 412, 415, 86 Am. Dec. 487. In the last-named case, the court held that the code had abolished the distinction between actions at law and suits in equity, and had substituted in their place one form of "civil § 355 EQUITY JURISPRUDENCE. 660 were so essentially bound up with and dependent upon the forms peculiar to the suit in equity, and to the administra- jtion of justice by the methods of chancery, that any aboli- tion of the peculiar forms must of necessity work some action"; but the rights and liabilities of parties, both legal and equitable, as distinguished from the mode of procedure, remain the same since as before the adoption of the code. Oregon. — Hatcher v. Briggs, 6 Or. 31, 41. Wisconsin, — Bonesteel v. Bonesteel, 28 Wis. 245, 250; Dickson v. Cole, 34 Wis. 621, 625 ; Mowiy v. Hill, 11 Wis. 146, 149 ; Leonard v. Rogan, 20 Wis. 568; Supervisors v. Decker, 30 Wis. 624, 626-630; Turner v. Pierce, 34 Wis. 658, 665; Lawe v. Hyde, 39 Wis. 345; Noonan v. Orton, 21 Wis. 283 ; Horn v. Ludington, 32 Wis. 73. From these and other eases which might be cited, it is plain that the supreme court of Wisconsin, while main- taining the doctrine that law and equity are unaffected by the reformed procedure, has also preserved in actual practice more of the external dis- tinctions of form between equitable suits and legal actions than has been done by the courts of any other state where the new system of procedure is adopted. There are two other states in which law and equity are blended, an^ are administered by means of the same kind of action, with the same forms of pleading and rules of practice, although the peculiar system known as the "refoi-med procedure" does not prevail therein. These states are Louisiana and Texas, and they should properly be included in this fourth class. Louisiana. — The "equity" recognized in this state is the power of the court to decide according to natural justice in all cases where the positive law is silent. See remarks, ante, § 345, in note ; Welch v. Thorn, 16 La. 188, 196; Kittridge v. Breaud, 4 Rob. (La.) 79, 80, 39 Am. Dec. 512; Clarke v. Peak, 15 La. Ann. 407, 409. Texas.— Ogden v. Slade, 1 Tex. 13, 15; Smith v. Clopton, 4 Tex. 109, 113; Spann v. Stern's Adm'rs, 18 Tex. 556; Seguin v. Maverick, 24 Tex. 526, 532, 76 Am. Dec. 117; Herrington v. Williams, 31 Tex. 448, 460; Jones V. McMahan, 30 Tex. 719, 728; Newson v. Chrisman, 9 Tex. 113, 117; Smith v. Smith, 11 Tex. 102, 106; Gross v. McClaran, 8 Tex. 341, 344; Coles v. Kelsey, 2 Tex. 541, 553, 47 Am. Dec. 661; Carter v. Carter, 5 Tex. 93, 100; Wells v. Barnett, 7 Tex. 584, 586; Pui-vis v. Sherrod, 12 Tex. 140, 159. The peculiar system of administering justice, with respect to the distinctions between law and equity which prevails in Texas, can only be fully understood by an examination of these decisions. I add a single quotation from an early case. In Smith v. Clopton, 4 Tex. 109, 113, Hemphill, C. J., said: "Before the introduction of the common law, the distinction between law and equity was altogether unknown. The parties stated their causes of complaint and grounds of defense, and on the alle- 661 JUDICIAL INTERPRETATION OF JURISDICTION. § 356 change in this class of interests, rights, and remedies. It is easy to say that the distinctive modes of equity proce- dure are alone abrogated by the legislature, while the prin- ciples, doctrines, and rules of the equity jurisprudence and jurisdiction are wholly unaffected; but in the very nature of things this is simply impossible with respect to all the details of the system. Some particular changes in equity jurisprudence and jurisdiction have therefore been made; they have been distinctly recognized and unqualifiedly ad- mitted by the courts; but their necessary connection with the general effects produced by the reformed procedure has not always been clearly perceived and announced, I shall describe the most important of these instances, which must be regarded as exceptions to or limitations upon the general propositions contained in the last preceding paragraph. §356. On Certain Equitable Interests. — The first and most palpable of these necessary changes is the complete abrogation of a certain class of equitable primary rights, gations and proofs such relief was afforded as they were entitled to under any and all the laws of the land, without reference to that peculiarity of the English system of jurisprudence which renders the rights of parties, or at least their reliefs, dependent not only upon the facts of their case, but also upon the form in which redress was sought. Upon the intro- duction of the common law, the intention of the legislature is manifest to prevent such distinction from being recognized, at least, to an extent which would deprive parties of any relief to which they may be entitled under the rules and principles of either law or equity. By the constitution of the state, and by subsequent legislation, the distinction between these two systems is, in a great measure, if not totally, disregarded. . . . The only inquiry, then, to be made at the institution of a suit is, whether the facts of the case are such as to entitle a party to a judgment in his favor in either law or equity; and if he have rights cognizable by either, such relief will be adjudged by the court as the nature of the case demands. The rule that courts of equity will interfere only where the party is remediless at law has but little application under a system in which the litigants in a suit can demand and obtain all the relief which can be granted by either courts of law or of equity." See. also, the opinion in Coles V. Kelsey, 2 Tex. 541, 553, 47 Am. Dec. 661, and the remarks ante, in note under § 345. § 356 EQUITY JURISPRUDENCE. 662 and the transformation of them into strictly legal rights. This result may not, under the circumstances, be of much practical importance, but it certainly exists. Prior to the codes, the assignment of a thing in action conferred upon the assignee only an equitable primary right, an equital)le demand. It is true that the courts of law had, in the course of time, come to recognize and protect this right, by permit- ting the assignee to sue at law in the name of his assignor, to control the action and judgment, and to receive the pro- ceeds; but still the 7~ight was no less equitable; the assignee could not assert his own claim by an action at law brought in his own name. In all the states where it prevails, the reformed procedure not only permits but requires the as- signee of a thing in action to sue upon it in his own name in any legal action brought for its recovery. This statu- tory rule removes the last vestige of the equitable nature of the assignee's interest, and transforms his claim into a purely legal one, and thus at one blow abolishes a well- defined division or portion of the equity jurisprudence.^ The courts have recognized this effect of the legislation § 356, 1 It is idle to say, as has been said by some judges, that the codes- merely adopt a rule of practice and extend to legal actions the rule as to parties which had prevailed in courts of equity, and that the right of the assignee given by the codes is only an equitable one (as, for example, in McDonald v. Kneeland, 5 Minn. 352, 365), because, — 1. The assignment of a thing in action conferred a complete equitable interest upon the assignee prior to the codes, so that the provision of the codes does not create his equitable right; and 2. The doctrine of equity was not a mere rule regulat- ing the parties to a suit; it treated the assignee as equitable owner, as clothed with all the rights of his assignor, and therefore permitted him to sue in his own name; but 3. The sole remaining reason why the assignee did not obtain a legal right of ownership was found in the purely technical rule which forbade him to sue at law in his own name. When this arbi- trary rule was abolished, his right of necessity became a legal one. The origin of the rule at law is found in the ancient common-law doctrines con- cerning maintenance; but these had long ceased to be operative in the United States. The true effect of the reformed procedure was perceived and stated by that most able and learned judge Mr. Justice Denio, in Peterson v. Chemical Bank, 32 N. Y. 21, 45, 88 Am. Dec. 298 : "The law of maintenance . . . prohibited the transfer of the legal property in a 663 JUDICIAL INTERPRETATION OF JURISDICTION. § 357 in changing the assignee's right from an equitable into a legal one; but they have not perceived, or at least x)ointed out, its bearing upon the general mode of describing the results produced by the new system. It is hardly neces- sary to say that this effect is confined to direct assignments of legal things in action. The equitable results arising from the assignment of equitable demands, and from the equitable assignment of funds, and the like are, of course, unmodified. § 357. On Certain Equitable Remedies. — But there is an- other and still more important limitation of the general proposition. While it is undoubtedly true that with the exception just mentioned of the right conferred upon the direct assignee of a legal thing in action, all the equi- table estates, interests, property, liens, and other primary rights 1 recognized by the equity jurisprudence, and all the cJiose in action, so as to give the assignee a right of action in his own name. But this is now abrogated; and such a demand . . . may be sold and conveyed, so as to vest in the purchaser all the legal as well as the equitable rights of the original creditor." * § 357^ 1 It might perhaps be said that the case of one of two or more joint debtors dying, and the equitable claim of a creditor against the estate of such decedent, was also an exception. At the common law no indebted- ness exists against the estate of a deceased joint debtor; but in equity the creditor has a demand still continuing which he can enforce by an equitable suit, under certain restrictions. In several of the states the creditor is permitted to sue the representatives of the deceased debtor at law, either alone or jointly with the survivors, and without having exhausted his remedies, or even taken any steps against the survivors. In short, the ancient common-law doctrine is wholly abrogated, and the demand against the estate of the deceased joint debtor is transformed into an ordinaiy legal claim ; the original legal debt is unaffected by the death. Great as is this change, I do not include it among those described in the text, because it is not a part of the reformed procedure as an entire system. This par- ticular result is confined to a few of the states, and depends upon peculiar and express causes of their own codes. In the states where such legisla- tion has been adopted, the effect undoubtedly is a change, as above §356, (a) The text is cited and Gravel Co., 156 Mo. App. 411, 138 adopted in aose v. Independent S. W. 81. See, also, § 1273. § 357 EQUITY JURISPRUDENCE. ' 664 principles, doctrines, and rules of that jurisprudence which define them, determine their existence, and regulate their acquisition, transfer, and enjoyment, are untouched and unaffected, it is no less true that some of the equitable remedies and remedial rights belonging to the equity juris- prudence, and coming within the equity jurisdiction, are materially modified, if not indeed destroyed as equitable remedies and remedial rights, by the reformed procedure. The union of legal and equitable causes of action in the same suit, and the granting of legal and equitable reliefs by the same judgment, and above all, the granting of ulti- mate legal relief by the judgment as though some prior auxiliary equitable relief which was a necessary prerequi- site had actually been granted, have very much lessened the instances in which it is proper, or even possible, for a party to maintain distinctively equitable suits, enforce purely equitable remedial rights, and obtain strictly equi- table remedies according to the settled course of the equi- table jurisdiction.2 The same consequences must result in even a still more marked manner, from the setting up of equitable defenses and counterclaims, and the obtaining affirmative equitable relief against the plaintiffs in actions which at their inception are purely legal. While these pro- visions of the new system do not absolutely take away the jurisdiction to entertain suits for the enforcement of equi- table rights, and, in connection therewith, for the restrain- ing of pending or threatened actions at law, yet they cer- described, in equitable primary rights, by transforming them into strictly legal rights. § 357, 2 One example will sufficiently illustrate this point. A plaintiff sues upon a written agreement, setting forth the facts entitling him to a reformation, and seeking to recover the amount due upon the instrument as reformed. The judgment actually rendered is merely a legal judgment for the recovery of debt or damages, the equitable relief of a reformation not being actually decreed, but being assumed; the purely legal relief is awarded exactly as though the prior auxiliary equitable relief had been in terms granted. See Bidwell v. Astor Ins. Co., 16 N. Y. 263, 267; Phillips V. Gorham, 17 N. Y. 270 ; Caswell v. West, 3 Thomp. & C. 383. 665 JUDICIAL INTERPRETATION OF JURISDICTION. § 358 tainly modify that jurisdiction, and in a great number of instances render its exercise unnecessary, improper, and even impossible.^ § 358. On the Inadequacy of Legal Remedies. — Finally, if the true spirit and intent of the refoniied procedure were fully carried out by the courts, I think that in all the states where it prevails the question whether or not an adequate remedy can be obtained at law would cease to have the slightest importance in the actual decision of causes. One of the plainest purposes of the new system is, that if a cause of action is stated in the pleading, the relief to which the plaintiff is entitled should be granted, whether that relief be legal or equitable. A suit should never be dis- missed on the ground that a court of equity has no juris- diction of the matter because the plaintiff has an adequate remedy at law; it should be retained and decided as an action at law, and the adequate legal relief should be awarded. 1 * The correctness of this theory is generally admitted, but the courts too often fail to carry the theory into practice. § 357, 3 I cannot at present enter into any discussion of this most im- portant question ; it will be examined in a subsequent chapter which deals with injunction. It is sufficient now to cite a few eases which illustrate the subject mentioned in the text: Erie R'y Co. v. Ramsey, 45 N. Y. 637, per Folger, J.; Platto v. Deuster, 22 Wis. 482, per Dixon, C. J.; Rogers V. Gwinn, 21 Iowa, 58; Uhlf elder v. Levy, 9 Cal. 607; Anthony v. Dunlap, 8 Cal. 26; Rickett v. Johnson, 8 Cal. 34. § 358, 1 Mr. Chief Justice Hemphill clearly apprehended this necessary result of the system in Smith v. Clopton, 4 Tex. 109, 113, quoted above, in the note under § 354. §358, (a) The text is cited and followed in Madden v. McKenzie, 144 Fed. 64, 75 C. C. A. 222. PART SECOND. PART SECOND. THE MAXIMS AND GENERAL PRINCIPLES OF EQUITY JURISPRUDENCE, AND THE EVENTS WHICH ARE OCCASIONS OF EQUITABLE PRIMARY OR REMEDIAL RIGHTS. PRELIMINARY SECTION. ANALYSIS. 8 3i59. Objects, questions, and divisions stated. § 360. Equitable principles described. § 361. Equitable doctrines described. § 362. Occasions of equitable rights. §359. Questions and Divisions Stated. — Thus far the discussion has been confined to the equity jurisdiction, or the power of courts to entertain and determine controver- sies involving equitable estates, interests, and rights, or to award remedies, in pursuance of the doctrines, methods, and procedure of equity. I now proceed to the examina- tion of the doctrines and rules which make up the equity jurisprudence. In the introductory chapter it was shown that equity jurisprudence, considered as a department of the municipal law, as a collection of practical rules adminis- tered by the courts, is separated by a natural line of divi- sion into two parts, namely, equitable estates, interests, and primary rights, which are all either equitable rights of property or rights analogous to property, and equitable remedies and remedial rights. There are, however, certain elements underlying and running through the entire body of equity jurisprudence, which must be explained and de- scribed in all their fullness and force, before either of these two great divisions can be dealt with in a complete and accurate manner. As clearly appears in our preliminary (669) § 360 EQUITY JURISPRUDENCE. 670 historical sketch, the doctrines and rules of equity jurispru- dence are not arbitrary; they are, to a very great extent, based upon and derived from those essential truths of morality, those unchangeable principles of right and obli- gation which have a juridical relation with and application to the events and transactions of society. These ethical truths do not, however, appear in equity jurisprudence in their purely abstract form. As they must be applied by the courts to juridical relations alone, they have been made to assume a concrete and juridical character, without losing at the same time any of their inherent ethical nature. In fact, these juridical precepts of right and duty are the broad foundations upon which the superstructure of equity jurisprudence has been constructed; they are the sources from which most of those doctrines and rules have been drawn which define and regulate equitable estates, inter- ests, and rights, and control the administration of equitable remedies. A careful examination and full comprehension of these sources — these fundamental principles — are plainly a prerequisite to any complete and accurate knowledge and understanding of the doctrines and rules which result from them. §360. Equitable Principles. — The juridical principles ^ of morality which thus constitute the ultimate sources of equitable doctrines and rules are of two classes or grades. Underlying the entire body of equity jurisprudence, extend- ing through every one of its departments, and shaping to a greater or less extent its doctrines concerning almost every important subject, are certain broad comprehensive precepts which are commonly denominated maxims of equity. These maxims are in the strictest sense the priii- § 360, 1 It is important to obtain an accurate notion of the distinction between "principles" and doctrines. "All principles are doctrines, but all dnr-trines are not principles. Those properly are principles which contain the principia, the beginnings or starting-points of evolution, out of which any system of truth is developed" : De Quincey. "Rules" are still more particular in their application and narrow in their scope than doctrines. 671 . PRELIMINARY SECTION". § 361 cipia, the beginnings out of which has been developed the entire system of truth known as equity jurisprudence.^ They are not the practical and final doctrines or rules which determine the equitable rights and duties of individual per- sons, and which are constantly cited by the courts in their decisions of judicial controversies. They are rather the fruitful germs from which these doctrines and rules have grown by a process of natural evolution. They do not exclusively belong either to the department which treats of equitable estates, property, and other primary rights, nor to that which deals with equitable remedies; their creative and molding influence is found alike throughout both of these departments. Among the most important of these principia which have been crystallized into the pithy form of maxims are the following: Equity regards that as done which ought to have been done; equity looks at the intent, rather than the form; equality is equity; he who seeks equity must do equity; he who comes into equity must come with clean hands. While it cannot be said that these and other similar principles have all produced the same or equal effects upon the development of equity juris- prudence, yet it is undeniable that a vast proportion of the actual doctrines and rules which make up the system of equity are necessary inferences from or direct applications of some one or more of these fundamental maxims. It is evident, therefore, that any full and accurate discussion of the doctrines and rules which constitute the two main divi- sions of equity jurisprudence as heretofore described must he preceded by an examination into the nature, meaning, extent, and effects of these few germinal principles. § 361. Equitable Doctrines. — In addition to these true principia, these principles which run through and affect all parts of equity jurisprudence, there are also certain other comprehensive doctrines which are purely equitable, and §360, (a) The text is quoted in Gavin v. Curtin, 171 111. 640, 49 N. E, 523. § 362 EQUITY JURISPRUDENCE. 672 largely serve to distinguish the system from the "law." The doctrines to which I refer are neither equitable estates, nor property, nor remedies, nor are they exclusively con- cerned either with equitable estates and other similar rights, or with equitable remedies; on the contrary, they affect to a greater or less extent both the equitable rights of property and the administration of equitable remedies. It seems expedient, therefore, in order to avoid unneces- sary repetition, — even if this arrangement is not essential in any scientific method, — that the investigation of these peculiar doctrines should precede the discussion of equi- table estates, interests, and other primary rights, and of equitable remedies. The following are illustrations of the doctrines which constitute this special class : The equitable doctrines concerning penalties and forfeitures ; the doctrine concerning priorities; the doctrine concerning notice; the doctrine of election. All of these are very comprehensive in their nature and effects, and are the immediate sources of numerous rules in all branches of equity jurisprudence. § 362. Occasions of Equitable Rights. — Finally, there are certain facts or events which are the occasions of numerous equitable rights, both primary and remedial, and which thus give rise to important doctrines and rules in every branch of equity jurisprudence. These facts and events have sometimes been described as forming a part of the concurrent jurisdiction ; but this view, as has already been shown, is superficial and erroneous. The facts and events which are thus peculiarly the occasions of equitable rights are fraud, mistake, and accident. Under the system of classification which I have adopted, these subjects do not exclusively belong either to the department of equitable estates and other primary rights, nor to that of equitable remedies. Although not the sources of rules, like the prin- ciples and doctrines mentioned in the foregoing paragraphs, they are the occasions which give rise to a large number of rules, and their examination should, in any proper order, t)73 PRELIMINARY SECTION. § 362 precede the discussion of equitable property and equitable remedies. This second part will therefore be separated into three chapters, of which the first will be devoted to the fundamental maxims of equity, the second to the group of peculiarly equitable doctrines above describe4, and the third to the special facts and events which are the occa- sions of many equitable rights and remedies. 1—43 § 363 EQUITY JURISPBUDENCE. 674 CHAPTER I. THE FUNDAMENTAL PRINCIPLES OR MAXIMS OF EQUITY. SECTION I. EQUITY REGARDS THAT AS DONE WHICH OUGHT TO BE DONE. ANALYSIS. § 363. List of equitable maxims. §364. Equity regards as done what ought to be done; its importance. §§ 365-377. Its true meaning, and its effects upon equitable doctrines. §§ 366-369. Is the source of equitable property and estates. § 366. Sources of legal property or titles described. § 367. Effect of an executory contract at law. § 368. Effect of an executory contract in equity. § 369. Sources of all kinds of equitable property described. 5§ 370-376. The equitable estates which are derived from this principle. § 371. Conversion. § 372. Contracts for the purchase and sale of lands. §373. Assignments of possibilities; sale of chattels to be acquired in the future; assignments of things in action; equitable assign- ments of moneys; and equitable liens. § 374. Express trusts. , § 375. Trusts arising by operation of law. §376. Mortgage; equity of redemption. § 377. Conclusions. § 363. List of Maxims. — Those principles whicli are so fundamental and essential that they may with propriety be termed the maxims of equity are the following: Equity regards that as done which ought to be done; equity looks to the intent, rather than to the form ; he who seeks equity must do equity; he who comes into equity must come with clean hands ; equality is equity ; where there are equal equi- ties, the first in time shall prevail; where there is equal equity, the law must prevail; equity aids the vigilant, not those who slumber on their rights, or Vigilantibus non dormientibus, cequitas subvenit; equity imputes an inten- G75 REGARDS THAT DONE WHICH OUGHT TO BE DONE. § 364 lion to fulfill an obligation; equity will not suffer a wrong without a remedy: and equity follows the law. 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 exaggeration to say that he who has grasped them all with a clear comprehen- sion of their full meaning and effects has already obtained an insight into whatever is essential and distinctive in the system of equity jurisprudence, and has found the explana- tion of its peculiar doctrines and rules.^ I purpose, in the successive sections of this chapter, to discuss them in the order given above. § 364. First Maxim: Its Importance and General Opera- tion.a — The first maxim in the list has been stated in some- what varying language by different text-writers, but with- out any substantial variation in the meaning. i I think the following form is both strictly accurate and sufficiently com- prehensive in expressing the equitable principle: Equity regards and treats that as done which in good conscience ought to be done. Some writers have failed to apprehend the full significance of this maxim, and have described its effects in altogether a too narrow and partial manner. ^ Others have correctly looked upon it as the very foundation § 364^ 1 "Equity looks upon that as done which ought to have been done": Story's Eq. Jur., §64g; gnell's Equity, 37 (10). "What ought to be done is to be considered as done": 2 Spence's Eq. Jur. 253; Adams's Equity, 135. §364, 2 Thus, Mr. Justice Story (1 Eq. Jur., § 64g), and Mr. Snoll (Snell's Equity, 37) following him, say: "The true meaning of this maxim is, that equity will treat the subject-matter of a contract, as to collateral consequences and incidents, in the same manner as if the final acts contem- plated by the parties had been executed exactly as they ought to have § 363, (a) The text is cited in Otis guinetti v. Rossen, 12 Cal. App. 623, V. Gregory, 111 Ind. 504, 13 N. E. 39. 107 Pac. 560. Sections 363 et seq. are cited in Lee § 364, (a) Sections 364 et seq. are V. Foushee, 91 Ark. 468, 120 S. W. cited in Woodbury v. Gardner, 77 Me. 160. 68, 75. Sections 363-381 are cited in San- § 364 EQUITY JURISPRUDENCE. 676 of all distinctively equitable property rights, of all equi- table estates and interests, both real and personal. ^ It is in fact the source of a large part of that division of equity jurisprudence which is concerned with equitable property; the doctrines and rules which create and define equitable estates or interests are in great measure derived from its operation. So far from the maxim being confined to ex- press executory contracts, and to those dispositions of prop- erty which give rise to an equitable conversion, it has been applied by the most eminent courts to all classes of equities ; to every instance where an equitable ought 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 corre- sponding equitable right is held by another party.^ ^ When- been, not as they might have been, executed. . . . The most frequent cases of the application of the rule are under agreements." This description is merely the substituting one practical result of the principle in the place of the principle itself. § 364, 3 Adams's Equity, 135 (6th Am. ed., p. 295) : " 'What ought to be done is considered in equity as done' ; and its meaning is, that whenever the holder of property is snbject to an equity in respect of it, the court will, as between the parties to the equity, treat the. subject-matter as if the equity had been worked out, and as impressed with the character which it would then have borne. The simplest operation of this maxim is found in the rule that trusts and equities of redemption are treated as estates; but its effect is most obvious in the constructive change of property from real to personal estate, and vice versa, so as to introduce new laws of devolution and transfer." The examples given of trusts and equities of redemption plainly show that Mr. Adams's definition was intended to in- clude all equitable property as resulting from this single principle. This is also the view of Mr. Spence. He expressly represents all trust and otlier equitable estates, whether growing out of executory contract creating the trust, or out of a will, or otherwise, as the consequences of this fruit- ful maxim. See 2 Spence's Eq. Jur. 253 et seq., and also the titles Trusts and Equitable Estates. § 364, 4 Frederick v. Frederick, 1 P. Wms. 710. A person had con- tracted to become a citizen of London, but died before he had carried this § 364, (b) The text is quoted in App. 447, 452, 453, 54 Am. St. Rep. Sourwine v. Supreme Lodge, 12 Ind. 531, 536, 40 N. E. €46; Western Lum- (577 EEGARDS THAT DONE WHICH OUGHT TO BE DONE. § 364 ever courts of high authority have dealt with the principle in a narrower manner, and have given to it a more re- stricted operation and effect, their language, although per- haps very general in its terms, should be taken as confined, agreement into effect by taking up his freedom. His widow thereupon brought a suit to procure his personal estate to be distributed in accordance with the customs of London, which applied to citizens only, and which prescribed a very different mode of distribution from that which prevailed under the statute in other parts of England. The court, invoking the maxim, held that the deceased should be regarded as though he were actu- ally a citizen at the time of his death, and that his estate should be dis- tributed in pursuance of the custom. This decision clearly exhibits the universality of the maxim: Burgess v. Wheate, 1 W. Black. 123, 129, 1 Eden, 177; Lechmere v. Earl of Carlisle, 3 P. Wms. 211; Brewer v. Her- bert, 30 Md. 301, 96 Am. Dec. 582; McCaa v. Woolf, 42 Ala. 389; Jordan V. Cooper, 3 Serg. & R. 585; Gardiner v. Gerrish, 23 Me. 46; Peter v. Beverly, 10 Pet. 534, 563 ; Taylor v. Benham, 5 How. 234, 269 ; Common- wealth V. Martin, 5 Munf. 117, 122; Pratt v. Taliaferro, 3 Leigh, 428: Coventry v. Barclay, 3 De Gex, J. & S. 320, 328, per Lord Chancellor West- bury. In this case the question in dispute was, whether a partner — Bevan — was bound by certain accounts settled with his co-partners, or wlietlier he could disregard them, and have a general accounting gone into. By the partnership articles it was stipulated that on a certain day each year the accounts of the whole past year should be made up, presented to all the ber & Pole Co. v. City of Golden, 23 ber of a beneficial association in good Colo. App. 461, 130 Pac. 1027; cited, standing and entitled under its con- O'Daniel v. Gaynor, 150 Ala. 205, 43 stitution and by-laws to be trans- South. 205; Sanguinetti v. Rossen, 12 f erred from one endowment class to Cal. App. 623, 107 Fac. 560; Lynch v. another, requested to be so trans- Moser, 72 Conn. 714, 46 Atl. 153; f erred, and did all that could be re- Scott V. Scott, 51 Ind. App. 194, 99 quired of him to entitle him to enter N. E. 435 : Martin v. Martin, 250 Mo. such class, but his request was wrong- 539, 157 S. W. 575 (husband, in con- fully and arbitrarily refused. After sideration of marriage, agreed to his death, the court, recognizing the sdopt his wife's child, but failed to flexibility of equitable remedies, and take the statutory steps; equity en- quoting the above passage of the text, forces the rights growing out of such granted relief as though the transfer duty) ; Shipman v. Lord, 58 N. J. Eq. had been effected. For limitations on 380, 44 Atl. 215; affirmed, 60 N. J. the application of the maxim to at- Eq. 484, 46 Atl. 1101; Preston v. Rus- tempted change of beneficiary in such sell, 71 Vt. 151, 44 Atl. 115. In Sour- an association, see Modern Woodmen wine V. Supreme Lodge, supra, 12 of America v. Headle, 88 Vt. 37, 90 Ind. App. 447, 452, 453, 54 Am. St. Atl. 893; Knights of Columbus v. Eep. 532, 536, 40 N. E. 646, a mem- Chirran (Conn.), 99 AtL 485; and § 365 EQUITY JURISPBUDENCE. 678 and as intended by the court to be confined, to the particular application of the maxim then under judicial investigation.^ § 365. Its Meaning and Effects. — What is the true mean- ing of the principle, taken in its most comprehensive and generic sense? and what are its true effects upon the system of distinctive doctrines and rules which constitute the equity partners, settled, and signed by each. At the appointed day in one year the accounts were thus made up, and laid before all the firm, except Bevan, settled and signed by them. Bevan was not present, on account of ill- ness, and never signed these accounts, but afterwards saw them, and verbally assented or agreed to their correctness. The same took place on another year. On these facts Lord Westbury said (p. 228) : "It is the rule of a court of equity to consider that as done which ought to be done ; and if, therefore, I find that the accounts and valuation of July, 1860, at the making of which Mr. Bevan was not present, were afterwards accepted and agreed to by him, I shall hold that the account was in equity signed by him at the time when it was so accepted." Here, it will be seen, this most able judge applied the maxim, not to the title and property in land or chattels, but to a purely personal act, and held that equity would regard such a personal act as done, although in fact it never was done, because it ought to be done. The case is in exact harmony with Frederick v. Freder- ick, 1 P. Wms. 710. § 364, 5 This is the universal rule for the interpretation of judicial dicta, and it is the only mode of avoiding irreconcilable conflict of opinion. The narrow and restricted effect given to the maxim is most frequently found in decisions concerning equitable conversion; and it has no other legiti- mate meaning than that of defining the limits within which th« principle can operate in such cases. See Burgess v. Wheate, 1 W. Black. 123, 129, 1 Eden, 177; Craig v. Leslie, 3 Wheat. 563, 577, per Washington, J.; Douglas Co. V. Union Pacific R. R., 5 Kan. 615. compare Walsh v. St. Louis Union may be enforced) ; Petty v. Gaeking, Trust Co. (Walsh v. Sovereign Camp, 97 Ark. 217, 33 L. R. A. (N. S.) 175, Woodmen of World), 148 Mo. App. 133 S. W. 832 (one who promised in 179, 127 S. W. 645. For other illus- writing to sign a note with another, trations of the maxim, see Ames v. held in equity to be a joint maker) ; Richardson, 29 Minn. 330, 13 N. W. Ogden v. Delaware Eiver & A. R. Co., 137; Newkirk v. Marshall, 35 Kan. 80 N. J. E'q. 191, 83 Atl. 991 (one 77, 10 Pac. 571. See, also, Murphey who advanced money to a corporation V. Brown, 12 Ariz. 268, 100 Pac. 801 under promise of a deposit of stock (where there is a valid contract to as security will be regarded as a lease, relation of landlord and tenant stockholder in equity) ; Goodell v, exists in equity, and landlord's lien Monroe (N. J. Eq.), 100 Atl. 238. t)7y REGARDS THAT DONE WHICH OUGHT TO BE DONE, § 3G5 jurisprudence? In the first place, it should be ohserved that the principle involves the notion of an equitable obli- gation existing from some cause; of a present relation of equitable right and duty subsisting between two parties, — a right held by one party, from whatever cause arising, that the other should do some act, and the corresponding duty, the ought resting upon the latter to do such act.^ Equity does not regard and treat as done what might be done, or what could be done, but only what ought to be done. Nor does the principle operate in favor of every person, no mat- ter what may be his situation and relations, but only in favor of him who holds the equitable right to have the act per- formed, as against the one upon whom the duty of such per- formance has devolved.! ^ Wherever between two parties, § 365, 1 This time meaning of the principle was admirably stated by Sir Thomas Clarke, M. R., in Burgess v. Wheate, 1 W. Black. 123, 129, 1 Eden, 177; "Nothing is looked upon in equity as done but what ought to have been done, not what might have been done. Nor will equity consider things in that light in favor of everybody; but only of those who had a right to pray it might be done. The rule is, that it shall either be between the parties who stipulate what is to be done, or those who stand in their place." In the last sentence the judge is merely speaking by way of illus- tration of the case where the right and duty arise from an express execu- tory contract ; he has no intention of confining the operation of the maxim to such contracts. While this passage presents the maxim in its true meaning and with its true limitations under all circumstances of its ap- plication, there are some other judicial dicta which must be carefully confined to the particular facts of the case in which they were uttered, or else they would be quite misleading, and some, perhaps, which do not even admit of this explanation, but must be regarded as essentially ei'roneous. Thus in the leading American case of Craig v. Leslie, 3 Wheat, 563, 577, a testator, citizen of the United States, devised all his lands to trustees, with directions to convert the same into money and pay the proceeds to tlie testator's brother, who was an alien. The attorney-general of Virginia, in §365, (a) The text is quoted in 205 (maxim does not apply to judi- Western Lumber & Pole Co, v. City cial acts). of Golden, 23 Colo. App. 461, 130 §365, (b) The text is quoted in Pac. 1027; Geiger v. Bitzer, 80 Ohio Geiger v. Bitzer, 80 Ohio St. 65, 17 St. 65, 17 Ann. Cas. 151, 22 L. R. A. Ann. Cas. 151, 22 L. R. A. (N. S.) (N. S.) 285, 88 N. E. 134; O'Daniel 285, 88 N, E. 134. V, Gaynor, 150 Ala. 205, 43 South, § oG5 EQUITY JURISPRUDENCE. 680 A and B, an ** equity" exists with respect to a subject- matter held by one of them, B, in favor of the other, A, then as between these two a court of equity regards and treats the subject-matter and the real beneficial rights and inter- ests of A as though the "equity" had actually been worked out, and as impressed with the character and having the which state the lands were situated, claimed that the lands of the testator had escheated to that state. The only question for decision was, whether, by the doctrine of equitable conversion, the real estate devised by the tes- tator was to be regarded as money, so that the alien legatee could chiini and hold the bequest, or whether it remained real estate, and so was liable to an escheat. The court, with a very elaborate examination of the authorities and discussion of the rules upon the subject, held that an equi- table conversion had taken place, and the gift was therefore valid as a bequest of personal property. In his opinion Mr. Justice Washington said : "The principle upon which the whole of this doctrine is founded is, that a court of equity, regarding the substance, and not the mere form and circumstances' of agreements and other instruments, considers things directed or agreed to be done as having been actually performed, where nothing has intervened to prevent a performance. This qualification of the more concise and general rule that equity considers that to be done which is agreed to be done will comprehend the cases which come under this head of equity." It is evident that the judge is here speaking of the maxim solely in its connection with the particular doctrine of "equitable conversion." He shows no intention of narrowing it, or of stating any qualification upon it, in its application to or effect upon the equity juris- prudence in general. In Douglas Co. v. Union Pae. R. R., 5 Kan. 615, the only question was, whether lands held by the railroad were liable to be taxed for county purposes. The company was in possession of the land under a statute or contract with the United States, but their ultimate right and title to the land depended upon their performance of numerous stringent conditions, none of which were yet performed. By the terms of the contract, all these conditions must be fully performed at the very times specified, and a failure to perform any one within the time forfeited the company's whole right. The county officers invoked the maxim, and claimed that the railroad were equitable owners. The court held that the interest of the company was so conditional, contingent, and uncertain that it was not property susceptible of taxation. This disposed of the whole case. The maxim under discussion plainly had no application, for as yet there was no obligation upon the United States to convey. Equity could not regard anything as done, because there was nothing yet which ought to be done. Notwithstanding this, the court went on as follows; "In equity 681 EEGARDS THAT DONE WHICH OUGHT TO BE DONE. § 365 nature which they then would have borne. ^ When in tliis proposition it is said that an ''equity" exists between the two parties, the meaning is, that some equitable obligation to do some positive act with respect to the subject-matter, arising from a cause recognized by the rules of equity juris- prudence, rests upon B, and a corresponding equitable right to have the act done by B with respect to the same subject- matter springing from the same efficient cause, is held by A. This active relation subsisting between the two parties, a court of equity, partly acting upon its fundamental principle of going beneath the mere external form and appearance of things and dealing with the real fact, the real beneficial truth, and partly for the purpose of making its remedies more complete, treats the resulting rights of A as though the obligation of B had already been performed; regards A, in fact, as clothed with the same ultimate interests in the subject-matter which he would receive and hold if B had actually fulfilled his obligation by doing the act which he ought to do. Of course this interest thus possessed by A is and must be a purely equitable one, recognized by courts there is a maxim that equity will consider as done that which ought to be done, and that it will look upon all things agreed to be done as actually performed. As an application of this maxim, equity generally considers that when land is sold on credit, and the deed is to be made when the pur- chase-money is to be paid, that the land at the time the sale is made be- comes the vendee's and the purchase-money the vendor's; that the vendor becomes at once the trustee of the vendee with respect to the land, and the vendee the trustee of the vendor with respect to the purchase-money. But this maxim never applies where time is of the essence of the contract, and where the land is subject to absolute forfeiture on failure of some condi- tion of the sale being performed; for there is no necessity in such a case for courts of equity to resort to any such fictio7t," etc. I only wish to notice this very remarkable expression of the court, which represents the operation of this fundamental principle of equity jurisprudence as a fic- tion. If the equitable estate of the vendee in an executoiy contract for the sale of land is a fiction, then every other species of equitable properly and interest must be equally a fiction, for they all stand upon the same principle, and in fact the greater part of equity jurisprudeuco must be fictitious: See Daggett v. Rankin, 31 Cal. 321, 326, per Currey, J. § 365, 2 See Adams's Equity, 135 (6th Am. ed., p. 295). § 366 EQUITY JURISPRUDENCE. 682 of equity alone, since no legal interest in the subject-matter could become vested in A except by the complete perform- ance of his obligation on the part of B, — his really doing the act which his duty bound him to do. § 366. Is the Source of Equitable Property — Sources of Legal Property or Titles. — All kinds of equitable property, as distinguished from legal ownership, are, with perhaps one or two particular exceptions, derived from this fruitful and most just principle. Its full operation can best be understood and appreciated from a brief comparison of the modes in which absolute property — that is, the perfect right of ownership, dominium — arises or is acquired at law, with the modes in which the analogous right of property arises according to the doctrines of equity. In the earliest and rudest periods of the common law absolute property could only be acquired inter vivos by the accurate observ- ance of certain arbitrary, external forms, or symbolic acts and gestures. 1 Although with an advancing civilization these external and symbolic acts have disappeared, still, down to the present time the only absolute property or right of ownership which the law recognizes, and which courts of law protect by their legal actions and remedies, whether in land or in things personal, must arise and be acquired in certain fixed, determinate methods, which alone constitute the "titles" known to the law, — using that word in its strict and true sense as means of acquiring property. Without following some one of these certain modes, no legal property can be obtained or transferred as between persons in their private capacities. ^ The most important of these § 366^ 1 This is true of every system of national law in its earliest, semi-barbarous, and purely customary stage. The "livery of seisin" of the Saxon and ancient common law was identical in principle with the "mancipation" by which complete dominion could alone be transferred in the primitive Roman law, — the early jus civile. § 366, 2 As I am speaking only of private relations, I purposely omit all mention of the public modes in which property might be acquired by the state, — escheat, forfeiture, eminent domain, and the like, — and also 683 REGARDS THAT DONE WHICH OUGHT TO BE DONE. § 366 common-law methods which must he pursued in order that a legal property may be acquired in land are: A conveyance under seal whereby the seisin was transferred; a will; in- heritance; marriage whereby a freehold estate Tor life might be vested in one of the spouses ; actual disseisin with an adverse possession during the period prescribed by the statute of limitations; and under very special circumstances, accession. 3 The important modes of acquiring a legal prop- erty in things personal are : A true present sale or bailment where the chattel is in existence and capable of immediate manual transfer; a will; a succession in case of intestacy as regulated by the statute of distributions; marriage; adverse possession aided by the statute of limitations ; occu- pancy; and the various acts which are included under the generic term "accession." ^ Unless a person has obtained the legal property in a specific tract of land through some one of the foregoing modes, he cannot as demandant main- tain a real action to recover such land, or as lessor of the plaintiff under the ancient practice, or as plaintiff under the modern, maintain an action of ejectment for the same purpose. A legal estate acquired by some legal title is in- dispensable. Upon the same principle, unless a person has a legal property in a specific chattel, obtained through some mode recognized by the law, he cannot as plaintiff main- tain any of the proprietary actions at law for the purpose of recovering the article itself, or its value in money, or those semi-public methods allowed by statutes in which property is vested in certain official persons, such as assignees in bankruptcy or insolvency, and the like. § 366, 3 The case of "alluvion," where the proprietor's land grows, as it were. § 366, 4 In all the instances whei'e property is divested and transferred through the agency of some administrative officer, — e. g., a sheriff acting in pursuance of a judicial authority, — the final means of transfer and of acquisition is a sale in case of chattels, and a conveyance in case of land. The only real distinction between these cases and those of ordinary sales and conveyances lies in the person who as vendor or grantor makes the transfer. § 367 EQUITY JURISPRUDENCE. 684 damages for an invasion of his ownership, replevin or det- inue, trespass or trover. While he may have legal rights with respect to the thing, which courts of law will protect, and for the violation of which he may be entitled to appro- priate legal remedies, his legal right of property can only arise and exist upon the occasion of certain, determinate acts or events.^ § 367. Effect of an Executory Contract at Law. — Wh at is the effect at law of a contract whereby the owner agrees to sell and convey a designated tract of land, but which is not a true conveyance operating as a present transfer of the legal estate and the legal seisin? It is wholly, in every particular, executory, and produces no effect upon the re- spective estates and titles of the parties, and creates no interest in nor lien or charge upon the land itself. The vendor remains, to all intents, the owner of the land; he can convey it to a third person free from any legal claim or encumbrance ; he can devise it in the same manner ; on his death intestate, it descends to his heirs. The contract in no manner interferes with his legal right to and estate in the land, and he is simply subject to the legal duty of per- forming the contract, or to the legal liability of paying such damages for its non-performance as a jury may award, which are collectible from his property generally. On the § 366, 5 The Roman law furnished a complete analogy to this condition in our own jurisprudence. The absolute do^ninium, or property ex jure quiritum, the "quiritary property" of the early law, which could only be held by a Roman citizen, and could only be acquired by certain arbiliary modes, as by the symbolic process of mancipation in case of res mancipi, or by usucaption, or by a testament executed in strict compliance with the prescribed formalities, or by succession to the agnates in case of intes- tacy, was the exact analogue to our legal property or legal estates; while the property in bonis — the "bonitary property" — gradually permitted by the jjretorian legislation, which could be acquired in derogation of these modes, as, for example, by an ordinary sale and delivery without the sym- bolism of a mancipation, or by a testament executed without a compliance with the ancient forms, or by a succession to the cognates, etc., was sub- stantially identical with our equitable property or equitable estates. 685 REGARDS THAT DONE WHICH OUGHT TO BE DONE. § 368 other hand, the vendee acquires no interest nor property right whatever; he can maintain no proprietar}^ nor posses- sory action for its recovery; his right is a mere thing in action to recover compensation in damages for a breach from the vendor, and his duty is a debt, — an obligation to pay the stipulated price; on his death both this right and this duty pass to his personal representatives, and not to his heirs. In short, the vendee obtains at law no real prop- erty nor interest in real property. The relations between the two contracting parties are wholly personal. No change is made until, by the execution and delivery of a deed of conveyance, the estate in the land passes to the vendee.^ It is unnecessary to describe the similar legal effects pro- duced by agreements to sell chattels, sales of articles to be acquired by the vendor in the future, and all other contracts which are executory in their nature. § 368. Effect of an Executory Contract in Equity. — The full significance of the principle that equity regards and treats as done what ought to be done throughout the whole scope of its effects upon equity jurisprudence is disclosed in the clearest light by the manner in which equity deals with executory contracts for the sale of land or chattels, which presents such a striking and complete contrast with the legal method above described. While the legal rela- tions between the two contracting parties are wholly per- sonal, — things in action, — equity views all these relations from a very different stand-point. In some respects, and for some purposes, the contract is executory in equity as well as at law; but so far as the interest or estate in the land of the two parties is concerned, it is regarded as exe- cuted, and as operating to transfer the estate from the § 367, (a) This paragraph is quoted not have to reconvey anything to in Ciimmings v. Duncan, 22 N. D. the vendor). The text of Pomeroy 534, Ann. Cas. 1914B, 976, 134 N. W, on Contracts, § 314, which is almost 712. The greater part of the para- identical with the above, is quoted graph is quoted in Miller v. Shel- in Davis v. Williams, 130 Ala. 530, burn, 15 N. D. 182, 107 N. W. 51 537, 89 Am. St. Eep. 55, 60, 54 L. E. (vendee, in order to rescind, does A. 749, 30 South. 488. §368 EQUITY JURISPRUDENCE. 686 vendor and to vest it in the vendee. By the terms of the contract the land ought to be conveyed to the vendee, and the purchase price ought to be transferred to the vendor ; equity therefore regards these as done: the vendee as having ac- quired the property in the land, and the vendor as having acquired the property in the price. The vendee is looked upon and treated as the owner of the land; an equitable estate has vested in him commensurate with that provided for by the contract, whether in fee, for life, or for years; although the vendor remains owner of the legal estate, he holds it as a trustee for the vendee, to whom all the bene- ficial interest has passed, having a lien on the land, even if in possession of the vendee, as security for any unpaid por- tion of the purchase-money.i ^ The consequences of this § 368, 1 It is a great mistake, opposed to the fundamental notions of equity, to suppose that the equity maxim does not operate, and the vendee does not become equitable owner until and as far as he has actually paid the stipulated price. This erroneous view has sometimes been suggested, and sometimes even held, in a few American decisions; but it shows a mis- conception of the whole equitable theory. See, merely as an example, some of the dicta in Douglas Co. v. Union Pac. R. R., 5 Kan. 615. In truth, the vendee becomes equitable owner of the land, and the vendor equitable owner of the purchase-money, at once, upon the execution and §368, (a) The text is quoted in Marvin v. Stimpson, 23 Colo. 174, 46 Pac. 673; also in Speicher v. Lacy, 28 Okl. 541, 35 L. R. A. (N. S.) 1066, 115 Pac. 271; in Fonts v. Foudray, 31 Okl. 221, Ann. Cas. 1913E', 301, 38 L. R. A. (N. S.) 251, 120 Pac. 960; in Phillis v. Gross, 32 S. D. 438, 143 N. W. 373; in Taylor v. Interstate Inv. Co., 75 Wash. 490, 135 Pac. 240; cited, Peay v. Seigler, 48 S. C. 496, 59 Am. St. Rep. 731, 26 S." E. 885 (vendor's lien) ; Savings & Loan Soc. V. Davidson, 97 Fed. 696, 38 C. C. A. 365; United States v. Cooper, 196 Fed. 584; Stubbs v. Pitts, 84 Ark. 160, 104 S. W. 1110 (though the pur- chase price is not paid); Lee v. Fou- shee, 91 Ark. 468, 120 S. W. 160; Ehrenstrom v. Phillips, 9 Del. Ch. 74, 77 Atl. 80; Manning v. North British Mercantile Ins. Co., 123 Mo. App. 456, 99 S. W. 1095 (though ven- dee is out of possession) ; Marion v. Wolcott, 68 N. J. Eq. 20, 59 Atl, 242; Woodward v. MeCoIlum, 16 N. D. 42, 111 N. W. 623; Singleton v. Cuttino (S. C), 92 S. E. 1046; Sanderson v. Wellsford, 53 Tex. Civ. App. 637, 116 S. W. 382. The text of Pomeroy on Contracts, § 314, which is almost identical with the above, is quoted with approval in Davis V. Williams, 130 Ala. 530, 537, 538, 89 Am. St. Rep. 55, 60, 61, 54 L. R. A. 749, 30 South. 488. 687 BEGARDS THAT DONE WHICH OUGHT TO BE DONE, § 368 doctrine are all followed out. As the vendee has acquired the full equitable estate, — although still wanting the con- firmation of the legal title for purposes of security against third persons, — he may convey or encumber it; may devise it by, will; on his death intestate, it descends to his heirs, and not to his administrators ;« in this country, his wife is entitled to dower in it; a specific performance is, after his death, enforced by his heirs ; in short, all the incidents of a real ownership belong to it. As the vendor's legal estate is held by him on a naked trust for the vendee, this trust, impressed upon the land, follows it in the hands of other persons who may succeed to his legal title, — his heirs and his grantees, who take with notice of the vendee's equitable right. In other words, the vendee's equitable estate avails against the vendor's heirs, devisees, and other voluntary assignees, and his grantees with notice;^ it is only when delivery of the contract, even before any portion of the price is paid.^' It is true that the vendee's equitable estate is encumbered or charged with a lien as security for the unpaid price, and he, therefore, may, by the enforcement of this lien upon his final default in making payment, lose his whole estate, in the same manner as a mortgagor may lose his interest by a foreclosure. But this lien of the vendor is not inconsistent with the vendee's equitable estate, any more than the equitable lien of an ordinary mortgage is inconsistent with the mortgagor's legal estate. See cases cited in note at end of this paragraph. §368, (b) Quoted in Wiseman v. §368, (d) The text is cited in Beckwith, 90 Ind. 185, 190, holding Walker v. Goldsmith, 14 Or. 125, 12 that the equitable estate of the ven- Pac. 537, dissenting opinion where dee is vested in him by the contract, it is urged that the vendee's estate and cannot be impaired by subse- should not prevail against the lis quent legislation. See, also, Young pendens of a subsequent suit against V. Guy, 87 N. Y. 462. the vendor. On this question see § 368, (c) The text is quoted in post, § 637, and notes. The text is Marvin v. Stimpson, 23 Colo. 174, 46 cited in Woodbury v. Gardner, 77 Pac. 673; and in Stubbs v. Pitts, 84 Me. 68, 75, to the effect that the Ark. 160, 104 S. W. 1110; Hill v. vendor's sole devisee is the proper Heard, 104 Ark. 23, Ann. Gas. 1914C, party defendant to a suit for specific 403, 42 L. R. A. (N. S.) 446, 148 performance by the vendee. The S. W. 254; and cited in Waite v. text is cited in White v. Patterson, Stanley, 88 Vt. 407, 92 Atl. 633, dis- 139 Pa. St. 429, 21 Afl. 360; Cross v. Banting opinion. Bean, 83 Me. 62, 21 Atl. 752; to the § 368 EQUITY JURISPRUDENCE. 688 the vendor has conveyed the land to a third person who is a bona fide purchaser for vahie without notice that other equitable principles come into play, and cut off the vendee's equitable estate.^ It follows also, as a necessary conse- quence, that the vendee is entitled to any improvement or increment in the value of the land after the conclusion of the contract, and must himself bear any and all accidental injuries, losses, or wrongs done to the soil by the operations of nature, or by tortious third persons not acting under the vendor.* The equitable interest of the vendor is correlative with that of the vendee; his beneficial interest in the land is gone, and only the naked legal title remains, which he holds in trust for the vendee, accompanied, however, by a lien upon the land as security when any of the purchase price remains unpaid. This lien, like every other equitable lien, is not an interest in the land, is neither a jtis ad rem nor a jus in re, but merely an encumbrance. The vendor is re- garded as owner of the purchase price, and the vendee, be- fore actual payment, is simply a trustee of the purchase- money for him.g Equity carries out this doctrine to its consequences. Although the land should remain in the pos- session and in the legal ownership of the vendor, yet equity, in administering his whole property and assets, looks not upon the land as land, — for that has gone to the vendee, — but looks upon the money which has taken the place of the land; that is, so far as the land is a representative of the effect that the vendee's estate pre- 55 Ind. App. 155, 102 N. E. 160; vails against a purchaser from the Manning v. North British & Mercan- vendor with notice. tile Ins. Co., 123 Mo. App. 456, 99 S. §368, (e) The text is cited in W. 1095; Marion v. Wolcott, 68 N. J. Coleman v. Dunton (Me.), 58 Atl. Eq. 20, 59 Atl. 242; Woodward v. 430. McCollum, 16 N. D. 42, 111 N. W. §368, (f) The text is quoted in 623. Speicher v. Lacy, 28 Okl. 541, 35 §368, (g) The text is quoted in L. R. A. (N. S.) 1066, 115 Pae. 271 Phillis v. Gross, 32 S. D. 438, 143 (vendee has equitable title to grow- N. W. 373; and in Taylor v. Inter- ing crops) ; in Fouts v. Foudray, 31 state Inv. Co., 75 Wash, 490, 135 Pae. Okl. 221, Ann. Cas. 1913E, 301, 38 240; and cited in Waite v. Stanley, L. R. A. (N. S.) 251, 120 Pae. 960; 88 Vt. 407, 92 AtL 633, dissenting and cited in Kimberlin v. Templeton, opinion. 089 REGARDS THAT DONE WHICH OUGHT TO BE DONE. § 368 vendor's property, so far as it is an element in Ms total assets, equity treats it as money, as though the exehaM:«'e had actually been made, and the vendor had received the money and transferred the land. Although the legal title to the land would still descend to the vendor's heirs upon his death, still when the vendee afterwards completes the contract, takes a conveyance of the legal title from the heirs, and pays the price, the money, being all the time an element of the vendor's assets, and being, therefore, all the time a part of his personal and not of his real property, goes to his administrators or executors, to be by them admin- istered upon with the rest of his personal assets, and does not go to the heirs.^ ^ § 368, 2 The following are a few oiat of the very many authorities by which all the foregoing propositions of the text are fully sustained : Farrar V. Winterton, 5 Beav. 1, 8, per Lord Langdale, M. R. A testatrix made a will devising certain real estate. After making the will she entered into a contract to sell the same land. The contract was not fully carried into effect by conveyance and payment of the price until after her death, and the only question presented by the case was, whether the purchase-money thus paid belonged to the executors as part of the general assets of her estate, or whether it belonged to the devisees. Lord Langdale said (p. 8) : "The question whether the devisees can have any interest in that part of the purchase-money which was unpaid depends on the rights and interests of the testatrix at the time of her death. She had contracted to sell her beneficial interest. In equity, she had alienated the land, and instead of her beneficial interest in the land, she had acquired a title to the purchase- money. What was really hers in right and equity was not the land, but the money, of which alone she had the right to dispose; and though she had a lien upon the land, and might have refused to convey until the money v/as paid, yet that lien was a mere security, in or to which she had no right or interest except for the purpose of enabling her to obtain the payment of the money. The beneficial interest in the land which she had devised was not at her disposition, but was by her act wholly vested in another at I he time of her death." This opinion is a very clear and accurate state- ment of the doctrine, and the passage which I have italicized shows how erroneous is the notion, advanced by way of dictum or as ground of deci- sion in a few American cases, that the ecjuitable estate of the vendee §368, (h) The last statement of Estate, 134 Iowa, 603, 12 L. E. A the text is cited in In re Bernhard's (N. S.) 1029, 112 N. W. 86. 1—44 § 369 EQUITY JURISPRUDENCE. 690 § 369. Sources of All Equitable Property. — In the fore- going description is shown how, in one particular manner, by the operation of the fundamental principle, the equitable estate in land, the beneficial property, the real ownership, arises, although no one of the acts or events has taken place which the common law so imperatively demands as a pre- requisite to the existence of ownership or property. This only arises when and as far as he makes actual payment of the purchase price: Haughwout v. Murphy, 22 N. J. Eq. 531. "In equity, upon an agreement for the sale of lands, the contract is regarded for most purposes as if specifically executed. The purchaser becomes the equitable owner of the lands, and the vendor of the purchase-money. After the contract, the vendor is the trustee of the legal estate for the vendee : Crawford v. Bertholf, 1 N. J. Eq. 460; Hoagland v. Latourette, 2 N. J. Eq. 254; Huff- man V. Hummer, 17 N. J. Eq. 264; King v. Ruckman, 21 N. J. Eq. 599. Before the contract is executed by conveyance, the lands are devisable by the vendee, and descendible to his heirs as real estate ; and the personal representatives of the vendor are entitled to the purchase-money : Story's Eq. Jur., §§ 789, 790, 1212, 1213. If the vendor should again sell the estate, of which, by the first contract, he is only seised in trust, he will be considered as selling it for the benefit of the person for whom, by the first contract, he became a trustee, and therefore liable to account; or the second purchaser, if he had notice at the time of his purchase of the previous contract, will be compelled to convey the property to the first purchaser: Hoagland v. Latourette, 2 N. J. Eq. 254; Downing v. Risley, 15 N. J. Eq. 94. A purchaser from a trustee, with notice of the trust, stands in the place of his vendor, and is as much a trustee as he was : 1 Eq. Cas. Abr. 384; Story v. Lord Windsor, 2 Atk. 631. The cestui que trust may follow the trust property in the hands of the purchaser, or may resort to the purchase-money as a substitute fund : Murray v. Ballon, 1 Johns. Ch. 566, 581. It is upon the principle of the transmission by the contract of an actual equitable estate, and the impressing of a trust upon the legal estate for the benefit of the vendee, that the doctrine of the specific perfoi-mauce of contracts for the sale and conveyance of land mainly dej^ends." See, also, Fletcher v. Ashburner, 1 Brown Ch. 497, 1 Lead. Cas. Eq., 4th Am. ed., 1118, 1123, 1157; Yates v. Compton, 2 P. Wms. 308; Green v. Smith, 1 Atk. 572, 573; Trelawny v. Booth, 2 Atk. 307; Pollexfen v. Moore, 3 Atk. 273; Maekreth v. Symmons, 15 Ves. 329, 336; Rose v. Cunyngbame, 11 Ves. 554; Kirkman v. Miles, 13 Ves. 338; Peters v. Beverly, 10 Pet. 532, 533; Taylor v. Benham, 5 How. 234; Champion v. Brown, 6 Johns. Ch. 403, 10 Am. Dec. 343; Wood v. Cone, 7 Paige, 472; Wood v. Keyes, 8 Paige, 365; Worrall v. Munn, 38 N. Y. 691 KEGARDS THAT DONE WHICH OUGHT TO BE DONE. 369 instance is given simply as an example. An analysis of all the different equitable estates, property, and interests anal- ogous to property, either real or personal, known to the equity jurisprudence will disclose the fact that nearly all, if not absolutely all, arise in the same general manner, by 139; Thompson v. Smith, 63 N. Y. 301, 303; Seaman v. Van Rensselaer, 10 Barb. 86 ; Kerr v. Day, 14 Pa. St. 112, 53 Am. Dec. 526 ; Robb v. Mann, 1 Jones, 300, 51 Am. Dec. 551; Richter v. Selin, 8 Serg. & R. 425, 440; Brewer v. Herbert, 30 Md. 301, 96 Am. Dec. 582 ; Lindsay v. Pleasants, 4 Ired. Eq. 321; Phillips v. Sylvester, L. R. 8 Ch. 173, 176, per Lord Selborne.* §368, (1) That the interest of the vendor in the purchase-money passes to his personal representa- tive, who is the proper plaintiff in a suit for specific performance, see Solt V. Anderson (Neb.), 93 N. W. 205; Bender v. Luckenback, 162 Pa. St. 18, 29 Atl. 295, 296; Williams v. Haddock, 145 N. Y. 144, 39 N. E. 825. In Clapp v. Tower, 11 N. D. 556, 93 N. W. 862, it was held that when the executors have canceled the contract of sale for default of the purchaser, and thus regained title, they may sell and convey the land and account to the court of their appointment for the proceeds as personalty, and the title so con- veyed is good as against the heirs of the vendor claiming title by suc- cession. The equitable rights of the next of kin of the vendor are not defeated where the vendee, by his laches, after the death of the vendor, loses his right to specific perform- ance, provided the contract was en- forceable in equity at the death of the vendor; Keep v. Miller, 42 N. J. Eq. 100, 6 Atl. 495. The equitable estate of the ven- dee will pass by his deed purporting to convey the land. Wilson v. Fair- child, 45 Minn. 203, 47 N. W. 642. Since the vendee is a trustee of the purchase-money, the statute of limitations does not run against an action to enforce the vendor's lien until the trust relationship is ter- minated. Williams v. Young (Ark.), 71 S. W. 669. The assertion by a tenant of the right to have a contract of purchase specifically enforced against bis land- lord, depending as it does upon the existence of the vendee's equitable estate, involves a denial of the land- lord's title, within the meaning of the rule by which the tenant is es- topped to deny such title. Davis v. Williams, 130 Ala. 530, 89 Am. St. Rep. 55, 54 L. R. A. 749, 30 South. 488. That the purchaser is entitled to a homestead in the land, subject to the vendor's lien for the unpaid pur- chase-money, see Dortch v. Benton, 98 N. C. 190, 2 Am. St. Rep. 331, 3 S. E. 638. See, in general, on the subject of this paragraph, Marvin v. Stimpson, 23 Colo. 174, 46 Pac. 673, quoting the text; Whittier v. Stege, 61 Cal. 238. For further treatment of the sub- ject, and special rules arising from the relationship of vendor and ven- dee in equity, see post, §§ 1161, 1163, 1260, 1261; Pom. Eq. Rem., chapter on Specific Performances. § 3G9 EQUITY JURISPRUDENCE. 692 tlie operation upon the particular circumstances of the same fundamental principle, and with the same general results.* Thus an assignment or conveyance of that peculiar interest in land called a '' possibility" is at the common law a mere nullity, so far at least as it attempted to create or transfer any ownership. At the time when the instrument is exe- cuted there is no present, certain, vested property right in the assignor upon which its granting language can attach; and if at some future time the contingency happens, the possibility changes into a certainty, and a property right becomes vested in the assignor, the arbitrary and technical rules of the common law concerning conveyances of real estate did not allow the words of assignment to act upon this newly arisen and vested interest so as to transfer it to the assignee. The effect of such a transaction in equity is wholly different. Although when the assignment is exe- cuted there is no present certain right of property in the assignor which can be transferred, yet in the view of equity the instrument operates at least as an executory agreement on the part of the assignor, and creates a present obligation resting upon him with reference to the land, which obliga- tion, though noiu contingent, may in future become absolute. If, therefore, at a subsequent time the contingency happens, and a certain present property thereupon vests in the as- signor, the obligation, now become absolute, at once attaches to it. By virtue of that obligation this property or estate of the assignor ought to be conveyed to the assignee by an efficient legal assurance ; and equity, regarding what ought to be done as done, treats the property as transferred, and the assignee as vested with the complete beneficial owner- ship. In this manner equity, in pursuance of the funda- mental principle under discussion, gives full effect to an as- signment or conveyance of a "possibility," and makes it the source of an equitable property in land. Again, a sale of a chattel not yet in existence, or not yet in the possession of §369, (a) The text is cited .in App. 447, 54 Am. St. Rep. 532, 40 Sourwine v. Supreme Lodge, 12 Ind. N. E. 04(5. 693 EEGARDS THAT DONE WHICH OUGHT TO BE DONE, § 369 the vendor, but to be acquired in future, passes no property in the thing to the buyer at law, even when it subsequently comes into the seller's ownership and possession. Such contract gives to the buyer a right of action for damages, but no property; he can maintain an action of assumpsit, but not replevin, or trover, or trespass.^ But as such a con- tract, although using language in prcBsenti, is, in effect, an executory agreement, and creates a definite obligation upon the vendor, equity, upon the same principle and in the same manner as last above explained, regards it as an assign- ment ; and when the thing comes into existence, or into the ownership of the seller, the real, beneficial property in it is at once transferred to and vested in the buyer, and he is the equitable owner. It is in consequence of the same prin- ciple that an assignment of a thing in action, completely nugatory at the common law as a transfer, and indeed opposed to the ancient theories of the law, is regr.rded in equity as clothing the assignee with all the rights of his assignor. These illustrations have all been taken from express contracts. The principle also extends to cases where the legal relations arise from conveyances inter vivos, or wills in which one of the parties is a volunteer, and even to transactions in which the legal relations arise from no such definite cause, but are merely implied from the prior conduct of the parties. In all express active trusts to convey the corpus of the trust property directly to the cestui que trust, and in all express passive trusts to hold the land for the use of the cestui que trust, created either by deed or by will, an equity exists between the beneficiary and the trustee, an obligation rests upon the latter, and this equity is treated as worked out, the obligation as performed, and the beneficiary as clothed with an equitable estate, depend- ing in kind, quality, and degree upon the special provisions of the instrument. Finally, in tinists arising by operation § 369, 1 I am stating, of course, the general rule, and need not describe the special excepted case of things having a "potential existence," such as an expectal ofop, etc. § 370 EQUITY JURISPRUDENCE. 694 of law, implied, constructive, and resulting trusts, the equity subsisting between the cestui que trust and the holder of the legal title, and the obligation resting upon the latter, are treated as though worked out, by regarding the bene- ficiary as vested with an equitable but no less real owner- ship.^ § 370. The Equitable Estates Derived from This Prin-' ciple. — Having thus examined the meaning of the grand principle, — equity regards that as done which ought to be done, — and explained the rationale of its operation upon equity jurisprudence in giving rise to various kinds of equi- table property and rights analogous to property, I shall finish the discussion by very briefly enumerating the most important of these equitable estates, interests, and prop- erty rights which are the immediate effects of the principle. As has already been shown, the maxim applies whenever an equity exists between two determinate parties with refer- ence to some subject-matter; that is, an obligation rests upon one, and a corresponding right is held by another.^ Such a right and duty may arise from a contract between the parties, and by the doctrines of equity a contract must be made upon an actual valuable consideration, in order that any equitable right and obligation may be created by it;i or from the dispositions contained in a deed or will, where the party clothed with the right is a volunteer; or § 370, 1 A seal alone is not enongh to show a consideration in equity : Jefferys v. Jefferys, Craig & P. 138; Hervey v. Audland, 14 Sim. 531; Meek v. Kettlewell, 1 Phill. Ch. 342, 1 Hare, 464; Ord v. Johnston, 1 Jur., N. S. 1063; Wycherley v. Wyeheiley, 2 Eden, 177; Estate of Webb, 49 Cal. 541, 545; Minturn v. Seymour, 4 Johns. Ch. 497; Burling v. King, 66 Barb. 633; Shepherd v. Shepherd, 1 Md. Ch. 244; Vasser v. Vasser, 23 Miss. 378; Kekewich v. Manning, 1 De Gex, M. & G. 176; Jones v. Lock, L. R. 1 Ch. 25; Wason v. Colburn, 99 Mass. 342; Pomeroy on Specific Performance, § 57, notes 2, 3. §369, (b) The last statement of Sourwine v. Supreme Lodge, ]2 Tnd. the text is cited in Heinrich v. Hcin- App. 447, 54 Am. St. Rep, 532, 40 rich, 2 Cal. App. 479, 84 Pac. 326. N. E. 646. §370, (a) The text is cited in 695 REGAIiDS THAT DONE WHICH OUGHT TO BE DONE. § 371 from the conduct and relations of the parties, where the equity neither grows out of any express contract, convey- ance, or will, as in trusts arising solely by operation of law.b The various estates and interests resulting from the maxim might therefore be arranged in classes according to this threefold division; but it will be much more con- venient to state them under their accepted names and titles as separate species of equitable property. § 371. Conversion. — One of the most direct and evident results of the principle is the equitable property which arises from the doctrine of conversion, — when real estate is treated by equity as personal property, or personal estate as real property; land as money, or money as land, — ''noth- ing is better established than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be con- sidered as that species of property into which they are directed to be converted; and this in whatever manner the direction is given, whether by will, by way of contract, marriage articles, settlement, or otherwise, or whether the money is actually deposited, or only covenanted to be paid ; whether the land is actually conveyed, or only agreed to be conveyed ; the owner of the fund or the contracting parties may make land money or money land. "^ A conversion may thus take place where, by a will, a deed, or family set- tlement, land is actually devised or conveyed, or money or securities are actually assigned to trustees, with direc- tions in the one case to sell the land, and pay over the pro- ceeds to the beneficiary, and in the other to invest the fund in the purchase of the land to be then conveyed to him ; or it may in like manner take place where, by marriage arti- cles or other executory agreement, land is covenanted to § 371, I Per Sir Thomas Sewell, M. R., in Fletcher v. Ashburner, 1 Brown Ch. 497, 1 Lead. Cas. Eq., 4th Am. ed., 1118, 1120. I-'^TO, (b) The text is cited to this effect m Heinrich v. Heinrich, 2 Cal. App. 479, 84 Pac. 326. § 372 EQUITY JURISPRUDENCE. 696 be conveyed, -or money is covenanted to be assigned, in like manner and for like purposes. The effect of the conver- sion is a direct consequence of the principle in question. Personal estate becomes, to all intents and purposes, in the view of equity, real, and real estate personal. Money directed to be invested in land descends to the heir of the original beneficiary, or passes under a general description of real property in his will, while land directed to be con- verted into money goes to his personal representatives, or is included in a residuary bequest of his '* personal prop- erty." These are some of the incidents of a conversion, and are sufficient at present to illustrate its nature and results.2 a § 372. Contracts for the Purchase and Sale of Lands. — Another immediate and evident consequence of the prin- ciple is the equitable property created by mere agreements § 371, 2 Fletcher v. Ashburner, 1 Brown Ch. 497, 1 Lead. Cas. Eq., 4th Am. ed., 1118, 1123, 1157; Kettleby v. Atwood, 1 Vern. 298; Crabtree v. Bramble, 3 Atk. 680; Babington v. Greenwood, 1 P. Wms. 532; Lechmere V. Earl of Carlisle, 3 P. Wms. 211; Guidot v. Guidot, 3 Atk. 254; Sweet- apple V. Bindon, 2 Vern. 536; Wheldale v. Partridge, 5 Ves. 396, 8 Ves. 227; Stead v. Newdigate, 2 Mer. 521; Elliott v. Fisher, 12 Sim. 505; Har- court V. Seymour, 2 Sim., N. S., 45; In re Pedder, 5 De Gex, M. & G. 890; Ashby v. Palmer, 1 Mer. 296; Craig v. Leslie, 3 Wheat. 563, 577, and cases cited; Dunseomb v. Dunscomb, 1 Johns. Ch. 508, 7 Am. Dec. 504; Lorillard v. Coster, 5 Paige, 173, 218; Gott v. Cook, 7 Paige, 523, 534; Kane v. Gott, 24 Wend. 641, 660, 35 Am. Dec. 641; Allison v. Wilson's Ex'r, 13 Serg. & R. 330, 332; Morrow v. Brenizir, 2 Rawle, 185, 189; Hurtt V. Fisher, 1 Har. & G. 88, 96; Leadenham v. Nicholson, 1 Har. & G. 267, 277; Siter v. McClanachan, 2 Gratt. 280; Pratt v. Taliaferro, 3 Leigh, 419, 421; Tazewell v. Smith's Adm'rs, 1 Rand. 313, 320, 10 Am. Dec. 533; Conunonwealth v. Martin's Ex'r, 5 Munf. 117, 121; Smith v. McCraiy, 3 Ired. Eq. 204, 207; Peter v. Beverly, 10 Pet. 534, 563; Taylor V, Benham, 5 How. 234, 269. §371, (a) The text is quoted in 315 (conversion by direction to in- Geiger V. Bitzer, 80 Ohio, 65, 17 Ann. vest money in land); Gilbrcath v. Cas. 151, 22 L. R. A. (N. S.) 285, 88 Cosgrove, 193 Mo. App. 419, 185 S. W. N. E. 134; and cited in In re Thin- 1181. phy's Estate, 147 Cal. 95, 81 Pac. 697 REGARDS THAT DONE WHICH OUGHT TO BE DONE. § 373 to purchase and sell lands. If the contract is made upon an actual valuable consideration, and complies in other re- spects with the requisites prescribed by equity, then, as soon as it is executed and delivered, the vendee acquires an equitable estate in the lands subject simply to a lien in favor of the seller as security for payment of the price,* while the vendor becomes equitable owner of the purchase- money. There is in this case, as in the last, an equitable conversion; the vendee's interest is at once converted into real property with all its features and incidents, while the vendor's interest is, to the same extent, personal estate. ^ ^ § 373. Assignments of Possibilities ; Sales of Chattels to be Acquired in the Future; Assignments of Things in Ac- tion; Equitable Assignments of Moneys; and Equitable Liens. — The operation of the grand principle that equity regards that as done which in good conscience ought to be done is perhaps less immediate and evident in producing these species of equitable propert}'-, or interest, but is no less real and certain. In all these instances an equity exists between the two parties, growing either out of an assi.gn- ment which at law creates or transfers no property right, either present or future, in the subject-matter, or out of § 372, 1 Fletcher v. Ashburner, 1 Lead. Cas. Eq., 4th Am. ed., 1118, 1123, 1157, in notes; Burgess v. Wheate, 1 W. Black. 123, 129, 1 Eden, 177; Harford v. Furrier, 1 Madd. 532; Paine v. Meller, 6 Ves. 349; Raw- lins V. Burgis, 2 Ves. & B. 387; Revell v. Hussey, 2 Ball. & B. 287; Hamp- son V. Edelen, 2 Har. & J. 66, 3 Am. Dec. 530; Siter's Appeal, 26 Pa. St. 180; Jackson v. Small, 34 Ind. 241; Lewis v. Smith, 9 N. Y. 502, 510, 61 Am. Dec. 706; Moyer v. Hinman, 13 N. Y. 180; Thomson v. Smith,, 63 N. Y. 301, 303 ; Moore v. Buitows, 34 Barb. 173 ; Adams v. Green, 34 Barb. 176; Schroppel v. Hopper, 40 Barb. 425; and see ante, § 368, note. §372, (a) The text is cited, as to 99 S. W. 1085 (loss by fire falls on the vendor's lien, in Peay v. Seiglcr, vendee) ; Jersey City v. Jersey City 48 S. C. 496, 59 Am. St. Rep. 731, 26 Water Supply Co., 70 N. J. Eq. 514, S. E. 885; Sehenck v. Wicks, 23 61 Atl. 714; Sanderson v, Wellsford, Utah, 576, 65 Pac. 732. 53 Tex. Civ. App. 637, 116 S. W. §372, (b) This paragraph is cited 382; Ainger v. White's Adm'r, 85 Vt. in Manning v. North British & Mer- 446, 82 Atl. 666. cantile Ins. Co., 123 Mo. App. 456, § 373 EQUITY JUMSPEUDENCB. 698 an executory contract which at law only creates a personal demand, — a mere right of action, — and equity, laying hold of the obligation thus assumed by or imposed upon one of the parties, transforms it, so to speak, upon the hap- pening of the contingent event contemplated, into the real, beneficial, equitable ownership, property, or interest, of whatever nature and extent, absolute or qualified, it may be, according to the terms of the instrument. Thus the assignee of a possibility becomes equitable owner of the estate when the event takes place; the vendee of chattels to be acquired becomes their equitable owner ; the equitable assignee of a fund becomes the real owner of the money; and from a mortgage or other transfer inoperative as such at law, or from the mere executory stipulations of an agree^ ment, complete equitable liens upon specific lands, chattels, or funds are created.^ «• § 373, 1 For authorities illustrating each of these species, see ante, § 369, and notes thereunder. In describing equitable liens, Currey, C. J., in Daggett v. Rankin, 31 Cal. 321, 326, used the following language : "The doctrine seems to be well established that an agreement in writing to give a mortgage, or a mortgage defectively executed, or an imperfect attempt to create a mortgage, or to appropriate specific property to the discharge of a particular debt, will create a mortgage in equity, or a specific [equitable] lien on the property intended to be mortgaged. The maxim of equity upon which this doctrine rests is, that equity looks upon things agreed to be done as actually perfoimed; the true meaning of which is, that equity will treat the subject-matter, as to collateral consequences and incidents, in the same manner as if the final acts, contemplated by the parties, had been executed exactly as they ought to have been." § 373, (a) As to equitable liens, comb Co. v. Glasgow Cooperage Co., see post, § 1235; Howard v. Delgado 173 Ky. 5, 19, 191 S. W. 275 (mort- County, 121 Fed. 26; Lynch v. Moser, gage of future property); Klauster- 72 Conn. 714, 46 Atl. 153 (agreement meyer v. Cleveland Trust Co., 89 to give a mortgage) ; Shipman v. Ohio St. 142, 105 N. E. 278 (equi- Lord, 58 N. J. Eq. 380, 44 Atl. 215, table lien arising from contract to 46 Atl. 1101; National Bank of De- pledge securities). As to equitable posit V. Rogers, 166 N. Y. 380, 59 assignment of a fund, see post, N. E. 922. See, also, In re Imperial §§ 1280-1284; Preston v. Kussell, 71 Textile Co., 239 Fed. 775 (assignment Vt. 151, 44 Atl. 115. of future accounts) j Moulder-Hol- 699 REGARDS THAT DONE WHICH OUGHT TO BE DONE. § 374 § 374. Express Trusts.^ — In everj^ particular instance of that vast section of peculiar ownerships to which the gen- eric name of ** Trusts" is given, where the legal title to the subject-matter is vested in one person, and the equitable title is held by another, this equitable property is the direct and plain effect of the principle which we are discussing. The truth of this statement is undeniable in all those cases of express trusts which thus divide the total ownership into the legal estate of the trustee, and the equitable estate of the cestui que trust. In express passive trusts, a naked legal title remains in the trustee, but the equitable and real property, with all its features and incidents, belongs to the beneficiar}^, so that he is treated in every sense as the true owner. Where land is given to a trustee merely upon the trust to convey the same to a specified beneficiary, the prin- ciple applies with equal force, and the cestui que trust is clothed with the equitable property, although the directions of the trust have not yet been carried into effect by an actual transfer to him of the legal estate. In another class of express active trusts, where by the terms of the creation the possession of the subject-matter, and the control, man- agement, and disposition of it during the time for which the trust is to last, are given to the trustee, to be exercised by him according to his own discretion, no such equitable prop- erty passes to the cestui que trust, and his right for the time being is only a thing in action, not an estate ; no obli- gation rests upon the trustee as a part of his fiduciary duty to make a transfer of the title to the beneficiary; the *' ought" required by the maxim is not present, and the principle itself does not apply as long, at least, as the trust remains alive.^ § 374, 1 For illustrations, see ante, § 153, and notes. It should be re- membered that, according to the legislation of several states, in the only express trusts of land which are permitted by the statutes, it is enacted that all estate and title, legal and equitable, shall be vested in the trustee, §374, (a) Sections 374-376 are Davidson, 97 Fed. 696, 38 C. C. A. cited in Savings & Loan Soc. v. 3C5. § ^75 EQUITY JURISPRUDENCE. 700 § 375. Trusts Arising by Operation of Law. — The prin- ciple is no less truly and directly the source of the equitable ownership regarded as held by the beneficiary in all trusts which arise by operation of law, resulting, implied, or con- structive. Although the fiduciary relation is not created by the terms of any direct conveyance, devise, assignment, or agreement, yet by the settled doctrines of the equity jurisprudence, an equity exists between the parties which is treated as worked out; an obligation to convey the sub- ject-matter rests upon the holder of the legal title, which is treated as though performed. Some modern judges of great learning and ability have said that the relations com- monly known as ''constructive" or ''resulting" trusts are only trusts suh modo, are called trusts only by way of anal- ogy, and for want of a better and more distinctive name. Even if this criticism upon the ordinary nomenclature be well founded, it does not deny, and was not intended to deny, the existence of the real, beneficial, equitable property in the beneficiary. He is admitted to be the equitable owner, with all the incidents of ownership, although the legal title is vested in another person. The beneficiary may not have anything which the law requires as a "title," he may even be without any written evidence of his right, his proprietor- ship may rest wholly upon acts and words, but still he is the equitable owner because equity treats that as done which in good conscience ought to be done.i * and that the cestui que trust shall have no estate, but only a right of ac- tion to compel a faithful perfonnance by the trustee. § 375^ I See illustrations, ante, § 155, and notes. The ojDinion of the lord chancellor, Lord St. Leonards, will apply to all such cases. A man had conveyed his land in fee by a deed which was fraudulent as against himself, so that he could have procured the deed to be set aside in equity; still the legal estate was wholly conveyed to the grantee. Afterwards the grantor devised the same land, and the question was, What interest did he have in the land, and was it devisable'? See Stump v. Gaby, 2 De Gex, M. § 375, (a) This paragraph is quoted in Heinrich v. Heinrieh, 2 Cal. App. in full in Ferryman v. Woodward, 479, 84 Pae. 326. 37 Okl. 792, 133 Fac. 245; and cited 701 REGARDS THAT DONE WHICH OUGHT TO BE DONE. § 376 § 376. Mortgage; Equity of Redemption. — There remains but one important equital)le estate to be considered, that of the mortgagor, called his equity of redemption; and a careful analysis will show that the existence of this as a part of equity jurisprudence can be accounted for upon no principle whatever other than the one under discussion. By a mortgage in fee the legal estate is vested in the mort- gagee, and upon the condition being broken, this legal estate becomes absolute. Nevertheless an equity with respect to the land exists between the two parties, a right in the mort- gagor and an obligation upon the mortgagee. ''Equity of redemption" is only an abbreviation of "right in equity to have a redemption. ' ' The mortgagor is clothed with this equitable right to a redemption, or in other words, this right to compel a reconveyance and redelivery of posses- sion at any time upon payment of the debt secured and interest, while the corresponding obligation rests on the mortgagee to make the conveyance and delivery. Upon thy universal principle of treating everything as done which in good conscience ought to be done, equity regards this right of the mortgagor, not as a mere thing in action, but as property, as an estate, as the real, beneficial ownership of the land, subject, however, to the lien created by the & G. 623, 630. Lord St. Leonards said: "What, then, is the interest of a party in an estate which he has conveyed under circumstances which would give a right in this court to have the deed set aside? In the view of this court he remains the owner, and the consequence is, that he may devise the estate, not as a legal estate, but as an equitable estate. The testator therefore had a devisable interest." Now, where, as in this case, the legal title had vested in the grantee, upon what principle was the grantor still regarded as the equitable owner, with all the incidents of the beneficial ownership? Plainly because from the fraud an equity with respect to the land existed between the grantee and the grantor, and an obligation rested upon the former to reconvey. Since the grantee in good conscience ought to reconvey, equity treated the parties as though this had been done, and the grantor as holding the equitable property. Upon the same principle is based the notion of equitable property in the beneficiary in all constructive and other implied ti-usts. See, also, Gresley v. Mousley, 4 De Gex & J. 78 ; Uppington v. Bullen, 2 Dru. & War. 184. § 377 EQUITY JURISPRUDENCE. 702 mortgage as a security to the mortgagee for the payment of his demand. The mortgagor's equitable property is, in this respect, exactly analogous to the equitable estate of a vendee subject to a lien in favor of the vendor as security for payment of the purchase priced § 377. Conclusions. — In the foregoing discussion I have shown, in the most conclusive manner, that every species of purely equitable property, and of equitable interests analogous to property, except those which are intentionally created by the direct and affirmative operation of some in- strument similar in its action to a conveyance at law,i is a certain and necessary result of the principle, that equity treats that as done which in good conscience ought to be done. It is no exaggeration, therefore, to say that the prin- ciple lies at the very foundation of tlie department of equity jurisprudence which deals with equitable estates, property, and interests analogous to property.* SECTION n. EQUITY LOOKS TO THE INTENT RATHER THAN TO THE FORM. ANALYSIS. § 378. Its meaning and effect. § 379. Legal requirements of mere form, §§ 380-384. Is the source of equitable doctrineB. § 380. Of equitable property. § 381. Of penalties and forfeitures. § 382. Of mortgages. § 383. Effect of the seal, § 384. Other special instances. § 376, 1 For authorities and illustrations, see ante, § § 162, 163, and notes. § 377, 1 The lien held by the mortgagee, created by the affirmative operation of the mortgage, and some other equitable liens, are examples of tliis class. § 377, (a) This paragraph is quoted City of Golden, 23 Colo. App. 461, in Western Lumber & Pole Co. v. 130 Pac. 1027. 703 LOOKS TO INTENT BATHER THAN TO FORM. § 378 § 378. Its Meaning and Effect. — The principle involved in this maxim, which is one of great practical importance, pervades and affects to a greater or less degree the entire system of equity jurisprudence, and is inseparably con- nected with that which forms the subject of the preceding section. In fact, it is only by looking at the intent rather than at the form, that equity is able to treat that as done ivhich in good conscience ought to he done.^ In explaining the meaning and operation of the one maxim, and the effects produced by it, I have necessarily described the significance and workings of the other. The two principles act together and aid each other, and it is by their universality and truth that much of equity jurisprudence which is peculiar and distinctive, in contrast with the law, has been developed. Equity always attempts to get at the substance of things, and to ascertain, uphold, and enforce rights and duties which spring from the real relations of parties. It will never suffer the mere appearance and external form to con- ceal the true purposes, objects, and consequences of a trans- action.^ This principle of looking after the intent and giv- ing it effect was fully recognized and distinctly formulated at an early day. In one leading case Lord Chancellor Macclesfield said: '^The true ground of relief against pen- alties is from the original intent of the case, where the penalty is designed only to secure money, and the court gives the party all that he expects or desired." i In an- other case Lord Thurlow said: "The rule is, that where § 378, I Peachy v. Duke of Somerset, 1 Strange, 447, Prec. Ch. 568, 2 Eq. Cas. Abr. 227, 228. §378, (a) The text is quoted in Co. (C. C. A.), 129 Fed. 274, 287; in Petty V. Gacking, 97 Ark. 217, 33 Western Union Tel. Co. v. Postal L. R. A. (N. S.) 175, 133 S. W. 832; Tel. Co., 217 Fed. 533, 133 C. C. A. Spaulding Mfg. Co. v. Godbold, 92 385; in State Life Ins. Co. v. Nel- Ark. 63, 135 Am. St. Rep. 168. 19 son, 46 Ind. App. 137, 92 N". E'. 2. Ann. Cas. 947, 29 L. R. A. (N. S.) This paragraph is cited in Ogden 282, 121 S. W. 1063. v. Stevens, 241 111. 556, 132 Am. St. § 378, (b) The text is quoted in Rep. 237, 89 N. E. 741. Heinze v. Butte & B. Consol. Min. § 379 EQUITY JURISPRUDENCE. 704 a penalty is inserted merely to secure the enjoyment of a collateral object, the enjoyment of that object is considered as the principal intent of the deed, and the penalty only as occasional." 2 It is true that in both of these cases the court was dealing with penalties; but the principle stated in them is of universal application, that equity always seeks for the real intent under the cover of whatever forms and appearances, and will give effect to such intent unless pre- vented by some positive and mandatory rule of the law. § 379. Legal Requirements of Form. — The ancient com- mon law paid great deference to matters of pure form, as, for example, in the symbolical process called 'Mivery of seisin," by which alone a freehold estate in land could be transferred. Although such observances have long been abandoned, still the present rules of the law permit prop- erty in land or chattels to be created, transferred, or acquired only in certain defined modes, by means of the certain specified acts or events which constitute all the pos- sible legal titles. 1 It was also one characteristic feature of the ancient law that it held contracting parties to a most rigid observance of all the stipulations of their valid agreements; performance to the very letter of every cove- nant or promise was the inflexible rule. 2 Still another purely formal element of the law consisted in the extreme importance which it attached to the seal. The momentous § 378, 2 Sloman v. Walter, 1 Brown Ch. 418. And see 2 Lead. Cas. Eq., 4th Am. ed., 2014, 2022, and notes. § 379, 1 See an enumeration of these modes, ante, § 366. § 379, 2 For example, if A boi-rowed one hundred pounds to be repaid in six months, and as security gave his creditor a conditional conveyance in fee of an estate worth one hundred thousand pounds, to become void if the money was paid on the specified day, and in default of such pay- ment to be absolute, and for any reason the debtor suffered the pay day to pass without performance, the ancient law would no more relieve the debtor from the onerous provisions of his conveyance, or modify their rigor, than it would discharge him from his obligation to pay the debt of one hundred pounds; both would be regarded as standing ui^on exactly the same foundation of express contract. 705 LOOKS TO INTENT RATHER THAN TO FORM. § 380 and often most arbitrary results which flowed from tlie presence or absence of a seal, and its ,effect upon private rights of property and of contract, rendered many of the rules of the early law peculiarly rigid and almost barbarous. The equity jurisprudence, in all these respects, differed widely from the common law; from the very beginning it was distinguished by an entire absence of these arbitrary and purely formal incidents. That they have now, in a great degree, disappeared from the law itself, which has in consequence become more enlightened and more just, is wholly due to its gradual adoption of equitable principles, to its acceptance of doctrines originating in the court of chancery.* § 380. Is the Source of Equitable Doctrines — Of Prop- erty. — I shall now state, by way of illustration, some of the most important instances in which the principle has been applied, and the settled doctrines of equity jurisprudence which are its immediate results. The first, and by far the most important consequence of the principle, reaching through a large part of the equity jurisprudence, is found in every species of equitable property, estate, or interest, and of equitable lien, so far as these exist by the doctrines of equity, but not by those of the law. While, as is shown in the last section, all these purely equitable property inter- ests and liens arise from the direct operation of the grand principle, equity treats that as done which in good con- science ought to be done, still this maxim could only produce such effects in consequence of the other principle, that equity looks at the intent rather than at the form.^- In every kind of equitable property, or interest analogous to property, the external acts or events peremptorily required § 379, (a) This paragraph of the § 380, (a) The text is cited in text is cited in Williams v. Uneom- Clarke v. Clarke, 46 S. C. 230, 57 pahgre Canal Co., 13 Colo. 477, 22 Am. St. Rep. 675 (as to the doctrine Pac. 806; Hooper v. Central Trust of conversion), Co., 81 Md. 559, 29 L. R. A. 262, 32 Atl. 505. 1—45 § 380 EQUITY JURISPRUDENCE. 706 by the law in order to the existence of any property are wholly wanting; so that if the external form of the trans- action had been regarded, no property, nor right resembling property, could possibly exist. It is by disregarding these forms and looking at the real relations involved in the acts of the parties, at the real substance and intent of the transaction, that the court of chancery has built up its magnificent structure of equitable property, estates, and proprietary interests. The same is true of a large part of equitable liens. The external form is either an assignment, which at the law is wholly nugatory, or an executory agree- ment, which at law only creates a mere personal right of action, — at most a claim for damages; but equity, going below this mere appearance, and seeing the real intent, gives effect thereto by treating the assignment or agree- ment as creating a definite lien upon specific lands, or chat- tels, or securities, or other kind of fund, as the case may be.i^ The discussions of the last preceding section fully § 380, 1 As a single illustration : An instrument purporting to be a mortgage of law, but imperfectly executed by the omission of a seal or in some other manner, so as to be defective in form, is wholly nugatory at law as a valid mortgage, or as giving any interest in or claim upon the parcel of land described. Equity, however, not saying that the instrument is a true legal mortgage, declares that it is an efficient agreement to give a mortgage, and, as such, that it creates an equitable lien upon the land, valid for all purposes, and as against all parties, except a purchaser of the land for a valuable consideration and without notice : See Love v. Sierra Nevada, etc., Co., 32 Cal. 639, 653, 654, 91 Am. Dec. 602, and cases cited. § 380, (b) A deed defective in form Eayburn, 18 Or. 3, 22 Pae. 521; will generally be treated in equity Hyne v. Osborn, 62 Mich. 235, 28 N. as a contract to convey, specific per- W. 821. See, also, Barnes v. Banks, formance of which will be decreed 223 111. 352, 114 Am. St. Eep. 331, 8 when that remedy is not inequitable. L. R. A. (N. S.) 1037, 79 N. E. 117 See Munds v. Cassidy, 98 N. C. 558, (unsealed instrument of gift of real 4 S. E. 355 (lack of seal) ; Sparks v. property conveys an equitable title) ; Woodstock Iron, etc., Co., 87 Ala. Francis v. Preachers' Aid Society, 294, 6 South. 195 (defective attesta- 149 Iowa, 158, 126 N. W. 1027. As tion) ; Dreutzer v. Lawrence, 58 Wis. to the equitable lien created by de- 594, 17 N. W. 423 (same); Wood v. fective mortgages, see §1237. 707 LOOKS TO INTENT KATHER THAN TO FORM. § 381 illustrate and demonstrate the correctness of this conclu- sion. § 381. Penalties and Forfeitures. — It was an inflexible doctrine of the ancient common law that parties must be held to a strict performance of all the stipulations of their valid agreements ; that is, unless the agreement was wholly void from its illegality. "Whenever, therefore, a contract provided for a penalty or a forfeiture, the full penalty or forfeiture would be enforced by a court of law without the slightest regard to the amount of damages actually sus- tained by the obligee or promisee from the default. The action of equity in such cases affords a most striking illus- tration of the principle which we are discussing. It was at first confined to contracts for the payment of some definite sum of money, in which the debtor also bound himself, in case of his default, to pay a larger sum by way of penalty, or that the creditor might become absolute owner of specific property of a larger value by way of forfeiture, where the intent was plain that the penalty or forfeiture was added simply as a security for the payment of the real indebted- ness. This action of equity with reference to purely money contracts was soon extended to other agreements in which a party undertook to perform some act, to render some ser- vice, to transfer some property, to surrender some right, and a penalty or forfeiture was added. The general doc- trine was finally settled that, wherever a penalty or forfeit- ure is inserted merely to secure the payment of money, or the performance of some act, or the enjoyment of some right or benefit, equity regards such payment, performance, or enjoyment as the real and principal intent of the instru- ment, and the penalty or forfeiture as merely an accessory, and will therefore relieve the debtor partly from such pen- alty or forfeiture, whenever the actual damages sustained by the creditor party can be adequately compensated. The application of the principle in such cases, and the relief against penalties or forfeitures, must always depend upon the question whether compensation can or cannot be made. § 381 EQUITY JURISPRUDENCE. 708 If the principal contract is merely for the payment of money, there can be no difficulty; the debtor party will always be relieved from the penalty or forfeiture upon pay- ing the amount due and interest. If the principal contract is for the performance of some other act or undertaking, and its non-performance can be pecuniarily compensated, the amount of such damages will be ascertained, and the debtor will be relieved upon their payment. ^ But the prin- ciple, in this scope of its operation, is not confined to agree- ments ; it has been extended so as to prevent the forfeiture of a tenant's estate under a clause of re-entry for the non- payment of rent, or for the breach of some, though not of all, the covenants contained in a lease ;2 and to prevent the enforcement of a forfeiture for the non-performance of con- ditions subsequent.^ * As equity will often interfere in this manner to relieve against a penalty or forfeiture which per- haps would be entirely valid at law, it follows as a matter of course that a court of equity will never, by its affirmative § 381, 1 Peachy v. Duke of Somerset, 1 Strange, 477 ; Sloman v. Walter, 1 Brown Ch. 418, 2 Lead. Cas. Eq., 4th Am. ed.; 2014, 2023, 2044; Elliott V. Turner, 13 Sim. 477; Rogan v. Walker, 1 Wis. 527; Grigg v. Landis, 21 N. J. Eq. 494 ; Giles v. Austin, 38 N. Y. Sup. Ct. 215 ; Hagar v. Buck, 44 Vt. 285, 8 Am. Rep. 368. § 381, 2 The tenant will be relieved from a forfeiture incurred by his breach of a condition for a nonpayment of rent, because the extent of the lessor's real claim, the amount of rent due, can easily be ascertained, and satisfied by a pajTuent. The relief may be given on the breach of some other covenants, but is not generally extended to covenants to repair, to insure, etc. See 2 Lead. Cas. Eq., 4th Am. ed., 2014, 2023, 2044, and notes; Hill v. Barclay, 16 Ves. 402, 18 Ves. 56, 62; Reynolds v. Pitt, 19 Ves. 134; White v. Warner, 2 Mer. 459; Ex parte Vaughan, Turn. & R. 434; Green v. Bridges, 4 Sim. 96; Elliott v. Turner, 13 Sim. 477; Gregory V. Wilson, 9 Hare, 683; Croft v. Goldsmid, 24 Beav. 312; Palmer v. Ford, 70 111. 369. § 381, 3 Smith v. Jewett, 40 N. H. 530 ; Warner v. Bennett, 31 Conn. 408; Robinson v. Loomis, 51 Pa. St. 78; Rogan v. Walker, 1 Wis. 527; Hagar v. Buck, 44 Vt. 285, 8 Am. Rep. 368 ; Orr v. Zimmerman, 63 Mo. 72. § 381, (a) The greater part of this N. Y. R. Co. v. Bouvier, 70 N. J. Eq, paragraph is quoted in Baltimore & 158, 62 Atl. 868, by Pitney, V. C. 709 LOOKS TO INTENT RATHER THAN TO FORM. § 382 action, or by the affirmative provisions of its decree, enforce a penalty or forfeiture, or any stipulation of that nature, but will always leave the party entitled to prosecute his claim in a court of law according to legal rules.* § 382. Mortgages. — Another most remarkable applica- tion of the principle, from which arose an entire department of equity jurisprudence, was the equity of redemption, — the equitable right and estate of the mortgagor, after the legal title of the mortgagee had become absolute by a non- performance of the condition. Looking at the real intent of the parties, and considering the debt as the substantial feature, and the conveyance as a security, only, for its pay- ment, the court of chancery declared that a breach of the condition was in the nature of a penalty which ought to be relieved against, and that the mortgagee had an equity to redeem on payment of the debt and interest, notwithstand- ing the forfeiture at law; and furthermore, that this right of redemption could not be given up, waived, or parted with by any stipulation or covenant in the deed.i * The whole system of equity jurisprudence presents no finer example of the triumph of equitable principles over the arbitrary and unjust dogmas of the common law than this. § 381, 4 Livingston v. Tompkins, 4 Johns. Ch. 415, 431, 8 Am. Dec. 598; McKim v. Whitehall Co., 2 Md. Ch. 510; Shoup v. Cook, 1 Cart. 135; Warner v. Bennett, 31 Conn. 468, 478; Lefforge v. West, 2 Ind. 514, 516 (will not decree forfeiture of an estate on account of waste) ; Smith V. Jewett, 40 N. H. 530, 534; Clark v. Drake, 3 Chand. 253, 259; Eveleth V. Little, 16 Me. 374, 377; Gordon v. Lowell, 21 Me. 251, 257 (will not enforce a penalty created by statute) ; Fitzhugh v. Maxwell, 34 Mich. 138 (will not enforce a forfeiture for non-performance of a condition subse- quent in a contract for the sale of land) ; Beecher v. Beecher, 43 Conn. 556 (same rule) ; Palmer v. Ford, 70 111. 369 (forfeiture for non-payment of rent) ; Orr v. Zimmerman, 63 Mo. 72. § 382, 1 Casborne v. Scarfe, 1 Atk. 603 ; Howard v. Harris, 1 Vern. 190, 2 Lead. Cas. Eq., 4th Am. ed., 1945, 1949, 1952, 1983; see, also, ante, §§162, 163, and notes. §382, (a) The doctrine that a deed of the maxim: See post, § 1196; Stitt absolute in form may be shown to be v. Eat Portage L, Co., 96 Minn. 27, a mortgage is a striking illustration 104 N. W. 561. § 383 EQUITY JURISPRUDENCE. 710 § 383. Effect of the Seal. — The imxwrtant part played by the seal in the early common law, and the intensely technical and arbitrary effects produced by it according to the legal rules are too well known to require any statement. Equity has applied its principle of looking at the intent rather than at the form, in some instances, by treating the presence of a seal as a matter of no consequence, as producing no effect upon rights and duties of parties; in other instances, by disregarding its absence where such absence would be fatal at the law. Although the common law, in theory, required a valuable consideration in order to render any agreement valid and binding, yet it declared that a seal was conclusive evidence of such a consideration, and under no circum- stances would it permit this arbitrary effect to be removed by evidence showing, no matter how clearly, the absence of any consideration. Equity, disregarding such form and looking at the reality, always requires an actual considera- tion, and permits the want of it to be shown, notwithstand- ing the seal, and applies this doctrine to covenants, settle- ments, and executory agreements of every description.^ ^ § 383, 1 In Ord v. Johnston, 1 Jur., N. S., 1063, 1065, Stuart, V. C, said : "This court never interferes in support of a purely voluntary agree- ment, or where no consideration emanates from the individual seeking the performance of the agreement." In Houghton v. Lees, 1 Jur., N. S., 862, 863, the same judge said: "Of the general doctrine of the court on this subject, there is no doubt whatever. This court will not perform a volun- tary agreement, or what is more, a voluntary covenant under seal. Want of consideration is a sufficient reason for refusing the assistance of the court." See, also, Jefferys v. Jefferys, Craig & P. 138, 141, per Lord Chancellor Cottenham, who says the doctrine extends to contracts, cove- nants, and settlements, and in other cases it is applied to voluntary execu- tory trusts; the seal produces no effect whatever in such voluntary under- §383, (a) Selby v. Case, 87 Md. McCoy, 138 Fed. 696, in support of 459, 39 Atl. 1041. This paragraph the dictum that the lack of consid- is cited, and the text quoted, in eration in an option, rendering it a Lacey v. Hutchinson, 5 Ga. App. revocable offer, may be shown not- 865, 64 S. E. 105, a historical review withstanding that the option is un- of the doctrines at law and in equity der seal. This is a question on relating to the effect of the seal. which the authorities are at vari- This paragraph is cited in Couch v. ance: See Pom. Eq. Eem. 711 LOOKS TO INTENT RATHER THAN TO FORM. § 383 Another application of the principle is still more striking and just. The early common law attributed such an efficacy to the seal that a written obligation under seal could only be discharged by an instrument of the same high character, — that is, by a writing under seal. A subsequent written but not sealed agreement, revoking or modifying the terms of the prior specialty, or a parol accord, or even payment in full unaccompanied by technical release, or any other matter in pais, could not alter the rights and liabilities arising from the sealed instrument; it could still be en- forced against the obligor by an action at law, and such acts furnished him no legal defense whatever. Such a doc- trine was abhorrent to the spirit of equity. Paying no attention to the form of the transaction, if the act done was, in substance, a discharge, the court of equity treated it as equivalent in its effects to a technical release, and would relieve the obligor in any manner required by the circum- stances of the case, even by a decree for a delivery up or cancellation of the sealed undertaking.^ c One most im- takings: Cochrane v. Willis, 34 Beav, 359; Meek v. Kettlewell, 1 Phila. 342, 1 Hare, 464 ; Hervey v. Audland, 14 Sim. 531 ; Shepherd v. Shepherd, 1 Md. Ch. 244; Yasser v. Vasser, 23 Miss. 378; Minturn v, Seymour, 4 Johns. Ch. 497; Burling v. King, 66 Barb. 633; Estate of Webb, 49 Cal. 541, 545 ; Stone v. Hackett, 12 Gray, 227. In a few early cases it was held that voluntary agreements, if under seal, should be enforced; but these decisions and dicta have long since been oveiTuled; as, for example, see Beard v. Nutthall, 1 Vem. 427; Wiseman v. Koper, 1 Ch. Cas. Ch. 84; Tyrrell v. Hope, 2 Atk. 562 ; Edwards v. Countess of Wai-wick, 2 P. Wms. 176.^ § 383, 2 Of course the discharge must be upon a valuable consideration in order that equity might enforce it : Cross v. Sprigg, 6 Hare, 552 ; Tuf- nell V. Constable, 8 Sim. 69; Yeomans v. Williams, L. R. 1 Eq. 184; Taylor V. Manners, L. R. 1 Ch. 48; Hurlbut v. Phelps, 30 Conn. 42; Campbell's Estate, 7 Pa. St. 100, 47 Am. Dec. 503; Kidder v. Kidder, 33 Pa. St. 268. The early common law was so monstrous in its adherence to this rule, that if the debtor on a bond or other specialty had paid the demand in full, §383, (b) The latter part of note N. Y. 1, 16 Am. St. Rep. 793. 6 L. R. is cited in Lacey v. Hutchinson, 5 A. 506, 23 N. E. 198. This paragraph Ga. App. 865, 64 S. E. 105. is cited in Riggs v. Gillespie (C. C. §383, (c) McCreery v. Day, 119 A.), 241 Fed. 311. § 383 EQUITY JURISPRUDENCE. 712 l^ortant consequence of this principle is seen in the legal and equitable liabilities of sureties. Where the surety's contract is under seal, he is not, by the strict common-law rules, discharged by any conduct of the creditor towards the principal debtor, by an alteration of the principal debtor's undertaking, or by an agreement with the principal debtor extending his time of payment, since the surety's liability could only be discharged by an instrument under seal.^ Equity was therefore compelled to interfere under these circumstances, and relieve the surety by restraining the creditor from suing at law, and compelling him to sur- render and cancel the guaranty.'* There are other instances of the disregard shown by equity to the presence or absence of a seal in determining the rights of parties. If, for an example, an instrument, from its imperfect execution in wanting a seal, is inoperative at law as a conveyance or as a mortgage of land, equity may treat it as an agreement to convey or to give a mortgage, and as therefore creating an equitable interest in or lien upon the land.® and had even taken a written receipt therefor, but had failed to procure a surrender up of the instrument or a release of his liability, the creditor might still sue at law and recover the full amount again, and the law gave no redress or defense. One of the first steps by which equity broke in upon the rigor of the law was the remedy which it gave to the obligor under these circumstances, as stated in the text. It is a fact that the com- mon-law lawyers vehemently inveighed against the court of chancery for this alleged invasion of legal rules. The equitable doctrine long ago be- came a part of the law, but it should not be forgotten that it originated in the court of chancery.* § 383, 3 Archer v. Hale, 1 Moore & P. 285 ; Aldridge v. Harper, 3 Moore & S. 518 ; Brooks v. Stuart, 1 Beav. 512. In most of our states, if not indeed in all, this particular rule of the common law does not prevail. § 383, 4 Rees v. Berrington, 2 A^es. 540, 2 Lead. Cas. Eq., 4th Am. ed., 1867, 1870, 1896. §383, (d) The latter part of note 440; Allis v. Jones, 45 Fed. 148; and 2 is cited in Lacey v. Hutchinson, 5 cited generally in Williams v. Un- Ga. App. 865, 64 S. E. 105. compahgre Canal Co., 13 Colo. 477, §383, (e) The text is cited to this 22 Pac. 806. See § 1237; as to im- point in Scott v. Jenkins (Fla.), 35 perfectly executed deeds, atite, § 380, South. 101; Frost v. Wolf, 77 Tex. note. 455, 19 Am. St. Rep. 761, 14 S. W. 713 HE WHO SEEKS EQUITY MUST DO EQUITY. §§384,385 § 384. Other Special Instances. — Other doctrines of equity, by which the strict terms of contracts, and the some- what arbitrary rules of law relating thereto, are disre- garded in order to promote the ends of justice, may also be referred, at least partly, to this principle of looking at the real intent rather than at the form. As a mere illus- tration, I mention the doctrine which generally treats as joint and several the rights and liabilities arising from contracts which are regarded by the law as strictly joint, and the many important consequences which flow from this difference. Enough has been said, however, to show that the principle is one of very extensive application, and from it, either alone or in connection with others, are derived large portions of equity jurisprudence.* SECTION m. HE WHO SEEKS EQUITY MUST DO EQUITY. ANALYSIS. 5 385. General meaning of the principle. §§ 386, 387. In what cases applicable. § 388. Is a general rule regulating the administration of reliefs. §§ 389-393. Illustrations of the principle. § 389. The wife's equity. § 390. Equitable estoppel. § 391. Belief against usury. §§ 392, 393. Other special instances. §§ 394-396. Is also the source of certain equitable doctrines. § 395. Of election. § 396. Of marshaling securities. § 385. Its Meaning. — This maxim expresses the govern- ing principle that every action of a court of equity, in determining rights and awarding remedies, must be in ac- cordance with conscience and good faith. In its broadest sense it may be regarded as the foundation of all equity, § 384, (a) The text is cited in Williams v. Uncompahgre Canal Co., 13 Colo. 477, 22 Pac. 803. § 385 EQUITY JURISPRUDENCE. 7M as tlie source of every doctrine and rule of equity juris- prudence; since it is undeniable that courts of equity do not recognize and protect the equitalile rights of litigant parties, unless such rights are, in pursuance of the settled juridical notions of morality, based upon conscience and good faith. But as a practical principle, guiding the equity courts in their administration of justice, the maxim is only used in a much narrower and more special meaning. Even in this narrow signification it is a principle of most exten- sive application; it may be applied, in fact, in every kind of litigation and to every species of remedy.^ The mean- ing is, that whatever be the nature of the controversy be- tween two definite parties, and whatever be the nature of the remedy demanded, the court will not confer its equitable relief upon the party seeking its interposition and aid, un- less he has acknowledged and conceded, or will admit and provide for, all the equitable rights, claims, and demands justly belonging to the adversary party, and growing out of or necessarily involved in the subject-matter of the con- troversy.^ It says, in effect, that the court will give the plaintiff the relief to which he is entitled, only upon con- dition that he has given, or consents to give, the defendant such corresponding rights as he also may be entitled to in respect of the subject-matter of the suit.<^ This meaning of the principle was more definitely expressed by an emi- nent judge in the following terms: ''The court of equity refuses its aid to give to the plaintiff what the law would §385, (a) The text is quoted in 553, 102 Pac. 956; Cuthbertson v. Lov.e V. Park, 95 Neb. 729, 146 N. W. Morgan, 149 N. C. 72, 62 S. E. 744. 941. §385, (c) This sentence is quoted § 385, (b) This portion of the text in Charleston & W^ C. E'y Co. v. is quoted in Charleston & W. C. R'y Hughes, 105 Ga. 1, 70 Am. St. Eep. Co. V. Hughes, 105 Ga. 1, 70 Am. St. 17, 30 S. E. 972; Mack v. Hill, 28 Rep. 17, 30 S. E. 972; De Walsh v. Mont. 99, 72 Pac. 307; Compton v. Braman, 160 HI. 415, 43 N. E. 597; Jesup, 68 Fed. 263, 316, 31 U. S. App. Hooper v. Central Trust Co., 81 Md. 486, 15 C. C. A. 397; in Cuthbertson 559, 29 L. E. A. 262, 32 Atl. 505; r. Morgan, 149 N. C. 72, 62 S. E. Compton V. Jesup, 68 Fed. 263, 316, 744; Rosenthyne v. Matthews-McCul- 31 U. S. App. 486. 15 C. C. A. 397; loch Co. (Utah), 168 Pac. 957, dis- and in Cox v. Hughes, 10 Cal. App. senting opinion. 715 HE WHO SEEKS EQUITY MUST DO EQUITY. § 385 give liim if the courts of common law had jurisdiction to enforce it, without imposing upon him conditions which the court considers he ought to comply with, althougli the su))- ject of the condition should be one which the court would not otherwise enforce."*^ In this narrow and particular sense the principle becomes a universal rule governing the courts of equity in administering all kinds of equitable re- lief, in any controversy where its application may be neces- sary to work out complete justice.^ ® § 385, I In the two following quotations this aspect of the principle is stated in the most accurate manner: Hanson v. Keating, 4 Hare, 1, 4, per Wigram, V. C. : "The argument in this case for the defendant was founded upon the well-established rule of this court, that a plaintiff 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 obsem'e, 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 abstract 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 defendant such corresponding rights (if any) as he also may be entitled to in respect of the subject-matter of the suit. What those rights are must be detemiined aliunde by strict rules of law [meaning, of course, rules of equity, not of common law], and not by any arbitrary determination of the court. The rule, in short, merely raises the question what those terms, if any, should be. If, for example, a plaintiff seeks an account against a defendant, the court will require the § 385, (d) The text is quoted in terstate Sav. & L. Assn. v. Badgley, Bourgeois v. Eisley Real Estate Co., 115 Fed. 390; Bensiek v. Thomas, 66 82 N. J. Eq. 211, 88 Atl. 199; Reeves Fed. 104; Brunner v. Warner (Tenn. v. White, 84 N. J. Eq. 661, 95 Atl. Ch. App.), 52 S. W. 668; also in Co- 184. burn v. Coke, 193 Ala. 364, 69 South. §385, (e) The text is quoted in 574; Ilo Oil Co. v. Indiana N. G. & Kempe v. Campbell, 44 Ohio St. 210, O. Co., 174 Ind. 635, 30 L. R. A. 216, 6 N. E. 566; cited in Mahoney (N. S.) 1057, 92 N. E. 1; Kerr v. Me- v. Bostwick, 96 Cal. 53, 31 Am. St. Creary, 84 Neb. 315, 120 N. W. 1117 Rep. 175, 30 Pac. 1020; Wells v. (suit to quiet title); Swanson v. Francis, 7 Colo. 336, 4 Pac. 49, 55; Brawner (Tex. Civ. App.), 155 S. W. Otis V. Gregory, 111 Ind. 504, 13 N. 1191 (rescission); Hanna v. Haynes, E. 39; Snow v. Blount, 182 Mass. 42 Wash. 284, 84 Pac. 861 (rescis- 489, 65 N. E. 845 (citing this and sion). following sections of the text) ; In- § 386 EQUITY JURISPRUDENCE. . 71G § 386. When Applicable. — If we analyze this general formula, we shall obtain a more accurate notion of the real scope and effect of the principle. In the first place, the rule only applies where a party is appealing as actor to a court of equity in order to obtain some equitable relief ; that is, either some relief equitable in its essential nature, as an injunction or a cancellation, or equitable because it may 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: Clarke v. Tipping, 4 Beav. 594, 595. 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, and not to distinct matters pending between the same parties: Wliitaker v. Hall, 1 Glyn & J. 213. So, in the case of a bill for specific performance, the court will give the purchaser his conveyance, provided he will fulfill his part of the contract by paying the purchase-money; and e converso, 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 usuri- ous 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 previ- ous cases. The equity of the obligor is to have the entire 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 explained upon this or analogous rea- soning ; and my opinion is, that the court can never lawfully impose merely arbitrary conditions upon a plaintiff, only because he stands in that posi- tion 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 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 wiU never, in that character, be 717 HE WHO SEEKS EQUITY MUST DO EQUITY. § 386 come within tiie power of the court to administer by virtue of its concurrent jurisdiction, as an accounting, or a pecu- niary recovery; and it is necessarily assumed that the party would, but for the operation of the rule, be entitled to all the relief which he demands.^' Unless the party were otherwise so entitled, there would plainly be no occasion for invoking the rule. With respect to the terms which may be imposed upon the party as a condition to his obtaining compelled to give a defendant anything but what the defendant might, as plaintiff, enforce, provided a cause of suit arose: Lady Elibank v. Monto- lieu, 5 Ves. 737; Sturgis v. Champneys, 5 Mylne & C. 102." It will ap- pear subsequently that this last proposition of the learned judge is ex- pressed in somewhat too strong terms, and requires important limitations upon its generality. See, also, the same view expressed by the same judge in Neeson v. Clarkson, 4 Hare, 97, 101; Sturgis v. Champneys, 5 Mylne & C. 97, 101, per Lord Cottenham: "There are many eases in which this court will not interfere with a right which the possession of a legal title gives, although the effect be directly opposed to its own principles as ad- ministered between parties having equitable interests only, such as in cases of subsequent encumbrancers without notice gaining a preference over a prior encumbrancer by procuring the legal estate. It may be to be re- gretted that the rights of property should thus depend upon accident, and be decided upon, not according to any merits, but upon gi'ounds purely technical. This, however, has arisen from the jurisdiction of law and equity being separate, and from the rules of equity, though applied to subjects without its own exclusive jurisdiction, not having, in many cases, been extended to control matters properly subject to the jurisdiction of the courts of common law. Hence arises the extensive and beneficial rule of this court, that he who asks for equity must do equity; that is, this court refuses its aid to give to the plaintiff what the law would give him if the courts of common law had jurisdiction to enforce it, without imposing upon him conditions which the court considers he ought to comply with, although the subject of the condition should be one which this court woidd not otherwise enforce. If, therefore, this court refuses to assist a husband who has abandoned his wife, or the assignee of an insolvent husband who claims against both, in recovering the property of the wife, without secur- ing out of it for her a proper maintenance and support, it not only does not violate any principle, but acts in strict conformity with a rule by which it regulates its proceedings in other cases." §386, (a) The text is cited to this siek v. Thomas, 66 Fed. 104; Otis v. effect in Flanary v. Kane (Va.), 46 Gregory, 111 Ind. 504, 13 N. E. 39. S, E. 312; and cited generally in Ben- § 386 EQUITY JURISPRUDENCE. 718 the relief in accordance with the rule, — that is, the "equity" which he must do, — it is undoubtedly true, as said by Vice- Chancellor Wigram, that the court obtains no authority from this principle to impose any arbitrary conditions not warranted by the settled doctrines of equity jurisprudence ; the court cannot deprive a plaintiff of his full equitable rights, under the pretense of awarding to the defendant something to which he has no equitable right, something which equity jurisprudence does not recognize. The prin- ciple only requires the plaintiff to do ''equity." Accord- ing to its true meaning, therefore, the terms imposed upon the plaintiff, as the condition of his obtaining the relief, must consist of the awarding or securing to the defendant something to which he is justly entitled by the principles and doctrines of equity, although not perhaps by those of the common law, — something over which he has a distinc- tively equitable right.^ In many cases, this right or relief thus secured to or obtained by the defendant, under the operation of the rule, might be recovered by him, if he as plaintiff, the parties being reversed, had instituted a suit in equity for that purpose. But this is not indispensable, nor is it even always possible. The rule may apply, and under its operation an equitable right may be secured or an equitable relief awarded to the defendant which could not be obtained by him in any other manner, — that is, which a court of equity, in conformity with its settled methods, either would not, or even could not, have secured or con- ferred or awarded by its decree in a suit brought for that purpose by him as the plaintiff. ^ ^ § 386, 1 Upon this point the last proposition of V. C. Wigram, in his opinion quoted ante, under § 385, is stated in much too strong terms, with- § 386, (b) The text is quoted in bursing the purchaser in the amount Cuthbertson v. Morgan, 149 N. C. 72, received by the guardian but not 62 S. E. 744; and cited in Nugent v. received by the infant plaintiff: Stofella (Ariz.), 84 Pae. 910. Thus, Manternach v. Studt, 240 111. 464, a sale of an infant's property, void 130 Am. St. Rep. 282, 88 N. E. 1000. on its face, may be set aside by him §386, (c) This portion of the text on his coming of age, without reim- is quoted in De Walsh v. Braman, 719 HE WHO SEEKS EQUITY MUST DO EQUITY. § 387 § 387. Finally, tlie principle will not apply so as to compel the plaintiff to do equity, where the relief sought by the plaintiff, and the equitable right or relief secured or awarded to the defendant, belong to or grow out of two out the necessary qualifications. Indeed, one of the examples cited by him in a preceding sentence shows the incorrectness of his conclusion in this particular. The statement of the principle by Lord Cottenham is more accurate in this respect. One or two simple examples will illustrate. One of the most familiar applications of the rule is the "wife's equity," so called, the securing to her a portion of her own property, to which her husband becomes legally entitled by the marriage; whenever her husband or his assignee comes into a court of equity and seeks its aid to reach her property, the court may, under certain circumstances, compel the plaintiff, as a condition of his obtaining relief, to secure a portion of the property to the separate use of the wife by a settlement, although at law she has no right over it. This is sometimes done in a case where the wife herself could, by means of her own suit, have obtained the same relief; but it may also be done where, under the settled doctrines of equity, no such suit could be maintained by the wife. Under statutes against usury, which make void all usurious debts and obligations, the debtor may maintain a suit in equity for the purpose of procuring the usurious bond or other security to be surrendered up and canceled; but this relief will only be granted upon the condition that the plaintiff does equity by repaying to his creditor the amount which was actually loaned upon the security.* In this instance, by the operation of the principle, the defendant obtains a relief which he could not possibly have obtained in any other manner; for if he had sued the debtor either at law or in equity to enforce the security 160 111. 415, 43 N. E. 597, and in limitations or otherwise, the latter Bourgeois v. Eisley Eeal Estate Co., could not enforce in any other way; 82 N. J. Eq. 211, 88 Atl. 199 (a judg- cited to the same effect in Union ment creditor who has purchased his Central Life Ins. Co. v. Drake, 214 debtor's land for a small fraction of Fed. 536, 131 C. C. A. 82; United its value, and seeks the aid of equity Cigarette Machine Co. v. Brown, 119 to set aside a fraudulent conveyance Va. 813, L. R. A. 1917F, 1100, 89 of the land, is only entitled to the S. E. 850; cited, generally, in Hol- value of his debt, and not to the land v. Hotehkiss, 162 Cal. 366, L. R. land). The text is cited in Farm- A. 1915C, 492, 123 Pac. 258 (suit to ers' Loan & T. Co. v. Denver, L. & cancel tax sale) ; Swanson v. Brawner G. R. Co., 126 Fed. 46, 51, citing also (Tex. Civ. App.), 155 S. W. 1191 many cases and holding that relief (rescission). to the complainant maj' be condi- § 386, («1) This portion of the note tioned on the enforcement of a claim is quoted in Cox v. Hughes, 10 Cal. or equity held by the defendant App. 553, 102 Pac. 956. which, by reason of the statute of § 387 EQUITY JURISPRUDENCE. 720 entirely separate and distinct matters. The true meaning of the rule in this respect is, that the equitable right or relief secured to or conferred upon the defendant must be something connected with the subject-matter of the very suit or controversy for the proper decision of which the principle is invoked. Or, to state the same doctrine in more detailed and particular terms, ''the rule is applied where the adverse equity to be secured or awarded to the defend- ant grows out of the very controversy before the court, or out of such transactions as the record shows to be a part_ of its historj^, or where it is so connected with the cause in litigation as to be presented in the pleadings and proofs, with full opportunity afforded to the party thus recrim- inated to explain or refute the charges. " ^ ^ If the con- and recover the debt, the defense of usury would be a complete bar. Again, in many of the states a tax-payer may maintain a suit in equity and restrain the collecting officer from enforcing payment of illegal taxes ; but the relief of injunction will not be granted unless the plaintiff pays in full all that part of the tax assessed against him which is legal. Here also the defendant obtains a relief, under the operation of the principle, which he could obtain from the court of equity in no other manner; for the court would not sustain a suit in equity brought by the collecting officer to enforce payment of the tax ; his only affirmative remedy would be either at law or by special statutory proceedings. § 387, 1 Comstock v. Johnson, 46 N. Y. 615. Plaintiff and defendants were owners of adjoining mills. Plaintiff had the right to draw water for his mUl from a dam belonging to defendants. Plaintiff, without any right, as it was held, erected a buzz-saw on an open space in front of defendants' mill, and propelled it by water from defendants' dam. Defendants there- upon shut off all the water supply to the plaintiff's works, that to the mill as well as that for the saw. Plaintiff brought a suit to restrain them from § 387, (a) The text is cited in Ma- 668. See, also, Bethea v. Bethea, 116 honey v. Bostwick, 96 Cal. 53, 31 Ala. 265, 22 South. 561; Mackenna Am. St. Rep. 175, 30 Pae. 1020; City v. Fidelity Trust Co., 184 N. Y. 411, of Chicago V. Union Stock Yards & 112 Am. St. Rep. C20, 6 Ann. Cas. Transit Co., 164 111. 224, 35 L. R. A. 471, 3 L. R. A. (N. S.) 1068, 77 N. E. 281, 45 N. E. 430; Wells v. Francis, 721 (cannot be required to satisfy 7 Colo. 396, 4 Pac. 49, 55; John Ams- an independent judgment held by de- field Co. V. Edward B. Grossman & f endant) ; Peters v. Case, 62 W. Ya. Co., 98 ni. App. 180; Brunner v. 33, 13 L. R. A. (N. S.) 408, 57 S. E. Warner (Tenn. Ch. App.), 52 S. W. 733. 721 HE WHO SEEKS EQUITY MUST DO EQL ITY. § 387 duct of tlie plaintiff, growing out of matters entirely dis- tinct and unconnected with those embraced within the suit, can affect his right to obtain relief which would be other- wise proper, it must be by virtue of another equitable maxim, He who comes into a court of equity must come with clean hands. depriving him of the water. He was held to be entitled to the relief, but only upon condition that he discontinued the use of the saw. Church, C. J., said : "The rule of equity is, that he who asks equity must do equity. The plaintiff was in fault in using the buzz-saw on the defendants' prem- ises. It is said that this was an indei:»endent transaction, for which the defendants might have an action ; and this was the view of the court below. The rule refen-ed to will be applied where the adverse equity grows out of the very transaction before the court, or out of such circumstances as the record shows to be a part of its histoi-y, or where it is so connected with the cause in litigation as to be presented in the pleadings and proofs, with full opportunity afforded to the party thus recriminated to explain or refute the charges : Tripp v. Cook, 26 \yend. 143 ; McDonald v. Neilson, 2 Cow. 139, 14 Am. Dec. 431 ; Casler v. Shipman, 35 N. Y. 533. It is not indispensable to the application of this rule that the fault of the plaintiff should be of such a character as to authorize an independent action for an injunction against him." This case well illustrates the point stated in the last preceding paragraph. The defendants here obtained, by operation of the rule, a relief which they could have obtained from a court of equity in no other manner. They could certainly have maintained no suit in equity to recover damages from the plaintiff, and it is probable that the court would not have sustained a suit brought by them to restrain the plaintiff's act, or to abate it as a nuisance, since the injury was not irre- parable. For additional authorities which sustain the text, see Hanson v. Keating, 4 Hare, 1, 5, 6, per Wigram, V. C; Whitaker v. Hall, 1 Glyn & J. 213; Colvin v. Hartwell, 5 Clark & F. 484; Com. Dig., tit. Chancery, 3, F, 3, citing Shish v. Foster, 1 Ves. Sr. 88 ; McDonald v. Neilson, 2 Cow. 139, 14 Am. Dec. 431; Tripp v. Cook, 26 Wend. 143; Casler v. Shipman, 35 N. Y. 533; N. Y. & N. H. R. R. v. Schuyler, 38 Barb. 534, 554; Finch v. Finch, 10 Ohio St. 501, 507. In this case the court say that the prin- ciple does not apply, "unless the mutual equities supposed by the maxim arise out of the subject-matter of the suit, and are such as have a founda- tion in established rules of law or of equity. The maxim invests courts of equity with no arbitrary discretion." There are cases in which the court has disregarded this restrictive feature of the rule laid do\vn in the text. Thus, Secrest v. McKenna, 1 Strob. Eq. 356, was a suit for the specific performance of a conti-act for the sale of land, brought by the 1—46 § 388 EQUITY JURISPRUDENCE. 722 § 388. Is a General Rule Regulating Equitable Reliefs.— With this explanation of its scope and meaning, it may be regarded as a universal rule governing the court of equity in the administration of its remedies, that whatever may be the nature of the relief sought by the plaintiff, the equi- table rights of the defendant, growing out of or intimately connected with the subject of the controversy in question, will be protected; and for this purpose the plaintiff will be required, as a condition to his obtaining the relief which he asks, to acknowledge, admit, provide for, secure, or allow whatever equitable rights (if any) the defendant may have, and to that end the court will, by its affirmative decree, award to the defendant whatever reliefs may be necessary in order to protect and enforce those rights. This prin- ciple is not confined to any particular kind of equitable rights and remedies, but pervades the entire equity juris- prudence, so far as it is concerned with the administration of equitable remedies. ^ * vendee. The plaintiff had fully paid the purchase price, and was clearly entitled to the usual decree for a conveyance, so far as the agreement itself was concerned. But defendant had become a surety on the official bond of the plaintiff as a sheriff, and, as such surety, had incurred liabilities on behalf of the plaintiff, which still remained undischarged. On this ground the defendant had refused to fulfill his agreement by conveying the land. The court sustained the defendant's contention, and refused to grant the relief sought by the plaintiff, expressly on account of the plaintiff's pecuniary liability arising from the sheriff's bond, saying: "It is a settled principle of the court not to grant merely equitable relief without requiring the party asking it to do equity himself, — to do what is morally right, — of which many examples might be given." This decision, plainly, cannot be sustained, in view of the overwhelming weight of opposing authority, English and American. See, also, "Walling v. Aiken, 1 McMull. Ch. 1. § 388, 1 Com. Dig., tit. Chancery, 3, F, 3, citing Towers v. Da^-ys, 1 Vern. 480; Bradburne v. Amand, 2 Carth. 87; Smithson v. Thompson, 1 Atk. 520; Shish v. Foster, 1 Ves. Sr. 88; Shuttleworth v. Layeock, 1 Vern. 244; Kirkbam v. Smith, 1 Ves. Sr. 258; Anonymous, 2 Show. 282; Lady §388, (a) The text is quoted with Allen v. McMannes, 156 Fed. 615; in approval in Chaney v. Coleman, 77 Levy v. Stofella, 14 Ariz. 262, 127 Tex. 100, 13 S. W. 850; State v. Sny- Pac. 725; in Dreyer v. Southard der, 66 Tex. 687, 18 S. W. 106; in (Tex. Civ. App.), 148 S. W. 1103; in 723 HE WHO SEEKS EQUITY MUST DO EQUITY. § 389 §389. Illustrations: The Wife's Equity.— Having thus explained the principle in its generality, I shall now, by way of illustration, state some of the instances in which it has been applied. The most common and striking in- stance, at all events in England, is the "wife's equity," so called. By the common law the husband became absolute owner of all the wife's moneys, goods, and chattels, and things in action which he had reduced to possession, and estates for years, and acquired a life interest in all her free- hold estates, and was entitled to their rents and profits. The only mode of securing any of her property to her own use during the marriage was by a marriage settlement. Courts of equity have, from a very early period, provided the wife a remedy against these harsh doctrines of the com- mon law, where no proper settlement had already been made by the parties, by giving her a right to a provision out of her own property, when the circumstances were such that the principle, he who seeks equity must do equity, could be applied; and this right is known as her "equity to a set- tlement." 1 This right of the wife was first recognized in cases where the husband himself, or his assignee or cred- Elibank v. Montolieu, 5 Ves. 737; Murray v. Lord Elibank, 10 Ves. 84, 1 Lead. Cas. Eq., 4th Am. ed., 623, 639, 670, and notes; Peacock v. Evans, 16 Ves. 512; Fanning v. Dunham, 5 Johns. Ch. 122, 9 Am. Dec. 283; Lanning v. Smith, 1 Pars. Cas. 16; Corby v. Bean, 44 Mo. 379; Richard- son V. Linney, 7 B. Mon. 574; Sporrer v. Eifler, 1 Heisk. 636; Mumford V. Am. Life Ins. & T. Co., 4 N. Y. 463, 483; N. Y. & Harlem R. R. v. Mayor, etc., 1 Hilt. 562, 587;. Linden v. Hepburn, 3 Sand. 668; Creath's Adm'r v. Sims, 5 How. 192, 204; Lewis v. Baird, 3 McLean, 56, 83. § 389, 1 See Jewson v. Moulson, 2 Atk. 417, per Lord Hardwicke ; and Sturgis V. Champneys, 5 Mylne & C. 101, 105, per Lord Cottenham. Kilbornv. Johnson (Tex. Civ. App.), 517, 140 Pac. 495; Holland v. 164 S. W. 1108; in Kowan v. Texas Hotchkiss, 162 Cal. 366, L. R. A. Orchard Development Co. (Tex. Civ. 1915C, 492, 123 Pac. 258 (cancellation App.), 181 S. W. 871; and cited in of tax sale); Reiger v. Turley, 151 Price V. Stratton (Fla.), 33 South. Iowa, 491, 131 N. W. 866; St. Louis 644; Swope v. Missouri Trust Co., & S. F. B. Co. v. Richards, 23 Okl. 26 Tex. Civ. App. .133, 62 S. W. 256, 23 L. E. A. (N. S.) 1032, 102 947;. Provident. Mutual Building- Pac. 92. Loan Assn. v. Schwertner, 15 Ariz. § 389 EQUITY JURISPRUDENCE. 724 itor, or some other party claiming under or through him, resorted to the court as plaintiff, and sought its aid to en- force the husband's legal interest, and thus to obtain pos- session of property belonging to the wife. Avowedly act- ing upon the rule under discussion, the court established the doctrine that it would always require, as a condition of its granting the relief, that an adequate part of the prop- erty should be secured to the wife by a settlement.^ Sub- sequently the court took a further step, and allows the wife, as plaintiff, under proper circumstances, to assert her equi- table right by a suit in her own name.^ It may therefore be regarded as the established general rule of equity, whether the wife is plaintiif suing on her own account, or the husband or some other party claiming under him is the plaintiff suing to reach the property, if the wife's property is within the reach of the court, as if it is vested in trustees, or has been paid into court, or is in any other situation which brings it within the control of the court, it will not be permitted to be removed out of that jurisdiction and control until an adequate provision is made for the wife, un- less she has already been sufficiently provided for, or on her personal examination she waives her right. ^ This same § 389, 2 Bosvil V. Brander, 1 P. Wms. 459. § 389, 3 Lady Elibank v. Montolieu, 5 Ves. 737 ; Sturgis v. Champneys, 5 Mylne & C. 101, 105; Hanson v. Keating, 4 Hare, 1, 6; Eedes v. Eedes, 11 Sim. 569 ; Osbom v. Morgan, 9 Hare, 432, 434. § 389, 4 1 Lead Cas. Eq., 4th Am. ed., 623, 639, 670, and notes; Macau- ley V. Philips, 4 Ves. 19; Burden v. Dean, 2 Ves. 607; Oswell v. Probert, 2 Ves. 680; Turner's Case, 1 Vern. 7, and notes; Ball v. Montgomery, 4 Brown Ch. 338; Pryor v. Hill, 4 Brown Ch. 139; Brown v. Clark, 3 Ves. 166; Freeman v. Parsley, 3 Ves. 421; Mitford v. Mitford, 9 Ves. 87; Wright V. Morley, 11 Ves. 12 ; Elliott v. Cordell, 5 Madd. 149 ; Vaughan v. Buck, 13 Sim. 404; Stanton v. Hall, 2 Russ. & M. 175; WHkinson v. Charlesworth, 10 Beav. 324 ; Tidd v. Lister, 10 Hare, 140, 3 De Gex, M. & G. 857, 870; Ex parte Norton, 8 De Gex, M. & G. 258; Gleaves v. Paine, 1 De Gex, J. & S. 87; Spirett v. Willows, 3 De Gex, J. & S. 293, L. R. 1 Cb. 520, 522; Coster v. Coster, 9 Sim. 597; Bagsbaw v. Winter, 5 De Gex 6 S. 466 ; Ex parte Pugh, 1 Drew. 202 ; Napier v. Napier, 1 Dru. & War. 407; Scott V. Spashett, 3 Macn. & G. 599; Gilchrist v. Cator, 1 De Gex 725 HE WHO SEEKS EQUITY MUST UO EQUITY. § 389 rule was adopted and occasionally enforced in many of the American states, at a time when the common-law doctrines concerning the property relations between husband and wife were still unaltered, that is, prior to the modern legislation as to married women's property.^ The importance of the rule, however, has been greatly lessened in England, and the rule itself has certainly become entirely useless and obsolete in a great majority, if not indeed in all, of the states, from the effect of modern legislation. Recent stat- utes in nearly all, if not quite all, the states have deprived the husband of all interest in his wife's property during the marriage, have secured to her a perfect title in it, have removed it from all claims of her husband and of his cred- itors, have placed it under her exclusive control and sepa- rate use, and have generally given her full power or dis- position over it. 6 It is perfectly obvious, therefore, that no circumstances could possibly arise under which the rule could be invoked and enforced on behalf of a married woman, in order to secure her own property, since it is already more completely secured to her by the statutes, and neither the husband, nor his assignee, nor his creditors, & S. 188; Dunkley v. Dunkley, 2 De Gex, M. & G. 390, 396; Barrow v. Barrow, 5 De Gex, M. & G. 782; In re Ford, 32 Beav. 621; Marshall v. Fowler, 16 Beav. 249 ; Carter v. Taggart, 1 De Gex, M. & G. 286. § 389, 5 Kenny v. Udall, 5 Johns. Ch. 464; Haviland v. Bloom, 6 Johns. Ch. 178, 180; Davis v. Newton, 6 Met. 544; Howard v. Moffatt, 2 Johns. Ch. 206, 208; Glen v. Fisher, 6 Johns. Ch. 33, 36, 10 Am. Dec. 310; Page v. Estes, 19 Pick. 269, 271; Gassett v. Grout, 4 Met. 486, 489; Gardner V. Hooper, 3 Gray, 398; Durr v. Bowyer, 2 MeCord Eq. 368, 372; Duvall V. Farmers' Bank, 4 Gill & J. 283, 290, 23 Am. Dec. 558; Groverman v. Diffenderffer, 11 Gill & J. 15, 22; Tucker v. Andrews, 13 Me. 124, 128; Chase v. Palmer, 25 Me. 342, 348; Short v. Moore, 10 Vt. 446, 451; Barroa V. Barron, 24 Vt. 375; Smith v. Kane, 2 Paige, 303. § 389, 6 Statutes substantially to the effect described in the text are found in the following states: New York, California, Texas, Louisiana, Illinois, Iowa, Kansas, Massachusetts, Michigan, Nebraska, New Hamp- shire, Maine, Wisconsin, Alabama, Florida, Kentucky, IMaryland, Minne- sota, New Jersey, Oregon, Ohio, Pennsylvania, Rhode Island, Tennessee, Vermont, and without doubt in others. §§390,391 EQUITY JURISPRUDENCE. 726 could ever maintain a suit in equity for the purpose of reaching it.^ § 390. Equitable Estoppel. — As another example of the application of the principle: If the owner of an estate stands by and suffers another person, who is ignorant of his title or supposes himself to be entitled, to go on and expend money upon the estate, either by erecting buildings or by making other improvements, a court of equity will compel such owner, when he afterwards comes into it to assert his title, to indemnify the one who made the expend- iture, either by making a pecuniary compensation, or in some cases, if the expenditure were by a lessee under a defective lease, by confirming and establishing the leasehold interest.! ^ § 391. Usury. — Another remarkable application of the principle is seen in the action of the courts towards parties seeking its aid under the statutes against usury. Wlierever the statutes have made usurious loans and obligations abso- lutely void, if a borrower brings a suit in equity for the purpose of having a usurious bond or other security sur- rendered up and canceled, the relief will be granted only upon condition that the plaintiff himself does equity by repaying to his creditor what is justly and in good faith due, that is, the amount actually advanced, with lawful interest; unless, indeed, the statute has gone so far as to expressly prohibit the court from imposing such terms as § 390, 1 If the owner should resort to a court of law and bring an ac- tion of ejectment, a court of equity, at the suit of the party making the expenditure, would work out the equitable principle by restraining the ejectment until compensation was made : See Powell v. Thomas, 6 Hare, 300; Ramsden v. Dyson, L. R. 1 H. L. Cas. 129. §389, (a) For a discussion more §390, (a) For a similar applica- in detail of the wife's equity, see tion see Broumel v. White, 87 Md. §§ 1114-1118. This paragraph is 521, 39 Atl. 1047. See, also, § 818. cited, by way of illustration, in Allen V. McMannes, 156 Fed. 615. 727 HE WHO SEEKS EQUITY MUST DO EQUITY. §391 the price of its relief.ia The same principle has been ap- plied to a lender seeking the aid of the court to reform a security tainted with usury.2 The case is entirely different, and another maxim governs its decision, when the lender sues in a court of equity to enforce a usurious obligation. The borrower may set up the defense and defeat the suit, § 391, I Fanning v. Dunham, 5 Johns. Ch. 122, 142, 143, 144, 9 Am. Dec. 283 ; Rogers v. Rathbun, 1 Johns. Ch. 367 ; Williams v. Fitzhugh, 37 N". Y. 444; Ballinger v. Edwards, 4 Ired. Eq. 449; Ware v. Thompson, 13 N. J. Eq. 66 ; Ruddell v. Ambler, 18 Ark. 369 ; Noble v. Walker, 32 Ala. 456; Sporrer v. Eifler, 1 Heisk. 633, 636; Mason v. Gardiner, 4 Brown Ch. 436. An amendment to the New York statute took away from the court the power of imposing such terms upon the bon-ower. See Bissell V. Kellogg, 60 Barb. 617.»» § 391, 2 Corby v. Bean, 44 Mo. 379. By the statute of Missouri, usuri- ous contracts are not void in toto, but only as to the excess above the leyal interest. Plaintiff brought the suit for the refonnation of a trust deed, which, as appeared, had been given in the nature of a mortgage, to secure the payment of a promissory note upon which usurious interest had been charged. Before the court would grant the relief of reformation, it com- pelled the plaintiff to produce the note, and rebate the usurious interest. § 391, (a) The text is quoted in Kemper v. Campbell, 44 Ohio St. 210, 216, 6 N. E. 566; cited in Scott v. Austin, 36 Minn. 460, 32 N. W. 89; American Freehold L. & M. Co. v. Sewell, 92 Ala. 163, 13 L. E. A. 299, 9 South. 143. See, also, Ferguson v. Soden, 111 Mo. 208, 33 Am. St. Rep. 512., 19 S. W. 727; American Freehold L. & M. Co. V. Jefferson, 69 Miss. 770, 30 Am. St. Eep, 587, 12 South. 464; Cook V. Patterson, 103 N. C. 127, 9 S. E. 402; Euppel v. Missouri Guar- antee, S. & B. Ass'n, 158 Mo. 613, 59 S. W. 1000. .See, further, Kush v. Pearson, 92 Miss. 153, 45 South. 723 ; Gund V. Ballard, 73 Neb. 547, 103 N. W. 309; Bolen v. Wright, 89 Neb. 116, 131 N. W. 185; Owens v. Wright, 161 N. C. 127, Ann. Caa. 1914D, 1021, 76 S. E. 735; Corey v. Hooker, 171 N. C. 229, 88 S. E. 236 (though stat- ute declares all interest forfeited). § 391, (b) Arkansas has a similar statute: Lowe v. Loomis, 53 Ark. 454, 14 S. W. 674; and Minnesota: Scott V. Austin, 36 Minn. 460, 32 N. W. 89, 864; Exley v. Berryhill, 37 Minn. 182, 33 N. W. 567; Mathews V. Missouri, K. & T. Trust Co., 69 Minn. 318, 72 N. W. 121; Mis- souri, K. & T. Co. V. Krumseig, 172 U. S. 359, 19 Sup. Ct. 182; S. C. 77 Fed. 32, 23 C. C. A. 1, citing the au- thor's note. Alabama: Code 1907, § 4623, provides that payment of legal interest on the debt cannot be exacted: First Nat. Bank v. Clark, 161 Ala. 497, 49 South. 807; Barclift V. Fields, 145 Ala. 264, 41 South. 84. § 392 EQUITY JURISPRUDENCE. 728 without repaying any amount.^ c The rule extends to all cases where a party seeks to have a contract set aside and canceled on the ground of its illegality in violating the pro- visions of some statute ; the court will require him, as a con- dition to its granting the relief, to pay what is really due on the agreement, unless the illegality is a malum in se, or the statute itself prevents the imposition of such terms. ^ ^ § 392. Other Special Instances. — It is also an application of the principle, that where there has been some misde- scription of the property on the part of the vendor, a court of equity will not decree a specific performance of the con- tract at his suit, except upon the terms that he makes proper compensation for the injury which the defendant has sustained from the misdescription. ^ Indeed, it is also by virtue of the rule, that the decree is made in all suits for specific performance of contracts, the plaintiff, whether purchaser or vendor, being compelled to perform his part of the agreement as a condition to his obtaining relief against the defendant.^ The same is true with respect to the relief granted in suits for redemption brought either § 391, 3 The maxim, He who comes into a court of equity must come with clean hands, applies to the plaintiff in this case: Mason v. Gardiner, 4 Brown Ch. 437; Union Bank v. Bell, 14 Ohio St. 200; Kuhner v. Butler, 11 Iowa, 419; Hart v. Goldsmith, 1 Allen, 145; Smith v. Robinson, 10 Allen, 130 ; Sporrer v. Eifler, 1 Heisk. 633, 636. § 391, 4 Mumford v. Am. Life Ins. & T. Co., 4 N. Y. 463, 483. See, as to relief in case of illegal transactions, the next section. § 392, 1 Hughes v. Jones, 3 De Gex, F. & J. 307, 315 ; KnatchbuU v. Grueber, 1 Madd. 153; Scott v. Hanson, 1 Russ. & M. 128; Richardson v. Smith, L. R. 5 Ch. 648; Shaw v. Vincent, 64 N. C. 690; Davison v. Per- rine, 22 N. J. Eq. 87; Foley v. Crow, 37 Md. 51. § 392, 2 Hanson v. Keating, 4 Hare, 1, 4, 5, per Wigram, V. C. §391, (c) See Bigler v. Jack, 114 Investment Co., [1907] 1 Ch. 300 Iowa, 667, 87 N. W. 700. (borrower from an unregistered §391, (d) Cited to this point in money lender who sues to get back Dean v. Robertson, 64 Miss. 195, 1 the securities mortgaged must repay South. 159; New England M. S. Co. the money advanced to him). For V. Powell, 97 Ala. 483, 12 South. 55. a fuller discussion of the subject of See, also, Lodge v. National Union this paragraph, see § 937. 729 HE WHO SEEKS EQUITY MUST DO EQUITY. § 393 by a mortgagor or by a subsequent encumbrancer.^ a And where a trustee had purchased land in his own name, but really for the benefit of the cestui que trust, and had paid the purchase-money with his own funds, and was also a creditor of the cestui que trust for other advances made to or for him, it has been held that such beneficiary could not compel a conveyance from the trustee to himself, except upon payment of his entire indebtedness, as well that grow- ing out of this purchase as that arising from the other advances.'*^ § 393. The following are some additional miscellaneous examples : A contract for the purchase of lands was made in 1854, when the price was payable in gold. Subsequently, when the value of the premises had very greatly increased, and after the passage of the legal-tender act, the purchaser offered to pay the price in the United States legal-tender notes, which were then much depreciated, and, upon the vendor's refusal, brought this suit to compel a specific per- formance. The supreme court held that, under these cir- § 392, 3 Lanning v. Smith, 1 Pars. Cas. 16. § 392, 4 Com. Dig., tit. Chancery, 3, F, 3, citing Bradburne v. Amand, 2 Cas. Ch. 87; and see Walling v. Aiken, 1 McMull. Ch. 1, where a mort- gagor, on condition of redeeming the mortgage, was compelled to pay other and separate debts which he owed to the mortgagee. I doubt the correct- ness of these decisions. It is certainly difficult to reconcile either of them with the established doctrine that the adverse equities must both be con- nected with the subject-matter of the suit. §392, (a) See Levi v. Blackwell, N. W. 941. In support of the text, 35 S. C. 511, 15 S. E. 243. Likewise, see, also, Levy v. Stofella, 14 Ariz, a suit cannot be maintained to have 262, 127 Pac. 725; Whitehead v. a deed declared a mortgage unless Stevens (Okl.), 152 Pac. 445. there is an offer to redeem: Mack v. §392, (b) The text is cited in San Hill, 28 Mont. 99, 72 Pac. 307. So, Antonio & G, S. R'y Co. v. San An- in a suit to recover stock that has tonio & G. R. Co., 25 Tex. Civ. App. been pledged, plaintiff must pay the 167, 60 S. W. 338; and in Wells v. amount due, notwithstanding that Francis, 7 Colo. 396, 4 Pac. 49, 56, by the technical rule of law the where, also, the correctness of this pledge lien has been extinguished: extension of the rule is questioned. Love v. Park, 95 Neb. 729, 14S § 393 EQUITY JURISPRUDENCE. 730 cumstances, tlie plaintiff was not entitled to the relief ex- cept upon the condition of paying the price in gold.^ In states where a court of equity exercises a jurisdiction to set aside or to restrain the collection of illegal assessments or taxes, the relief will not be granted unless the plaintiff pays such portion of the tax or assessment as is lawful and justly due.^ a Where a ward, immediately upon com- ing of age, transferred all his property to his guardian for an inadequate consideration, and released the guardian from all liabilities growing out of his trust, and afterwards brought a suit to set aside and cancel such conveyance, and for an accounting, the relief was only granted upon the terms of refunding the amount thus paid by the guardian, or giving him credit for such amount in the accounting.^ Some further illustrations may be found in the foot-note. ^ ^ § 393, 1 Willard v. Tayloe, 8 Wall. 557; Wales v. Coffin, 105 Mass. 328; McGoori V. Shirk, 54 111. 408. § 393, 2 Board of Com'rs v. Elston, 32 Ind. 27, 2 Am. Rep. 327; Smith V. Auditor-General, 20 Mich. 398; Merrill v. Humphrey, 24 Mich. 170; Morrison v. Hershire, 32 Iowa, 271; Dean v. Charlton, 23 Wis. 590, 99 Am. Dec. 205. § 393, 3 Richardson v. Linney, 7 B. Mon. 574. § 393, 4 An invalid tax deed of the plaintiff's land was set aside as a § 393, (a) People's Nat. Bank v. See, on thia subject. Pom. Marye, 191 U. S. 272, 24 Sup. Ct. 68; Equit. Eemedies, chapter "Injunction Koen V. Martin, 110 La. 242, 34 Against Taxation." South. 429. See, also, Cottle v. ■ § 393, (b) It has been held (citing Union Pacific E. Co., 201 Fed. 39, the editor's note to the second edi- 119 C. C. A. 371, Kohlhamer v. Smie- tion), that relief to the plaintiff may tanka, 239 Fed. 408; Savings & Loan be conditioned on the enforcement Society v. Burke, 151 Cal. 616, 91 of a claim held by the defendant Pac. 504; Imperial Land Co. v. Im- which is barred by the statute of perial Irrigation Dist., 173 Cal. 660, limitations: Farmers' Loan & T. Co. 161 Pac. 113. But where the tax is v. Denver, L. & G. R. R. Co., 126 entirely invalid, the rule, of course, Fed. 46. This is in accordance with does not apply: Boals v. Bachman, that phase of the principle which is 201 111. 340, 66 N. E. 336. See, also, explained ante, end of § 386. See, Clark V, Maher, 34 Mont. 391, 87 also. Union Central Life Ins. Co. v. Pac. 272 (the maxim does not com- Drake, 214 Fed. 536, 131 C. 0. A. 82, pel the tender of tax on property citing the editor's note (may give not assessed, as condition to injunc- defendant benefit of a claim which tion against illegal tax). he could not enforce aflSrmatively) ; 731 HE WHO SEEKS EQUITY MUST DO EQUITY. §394 § 394. Is the Source of Certain Equitable Doctrines. — Thus far I have discussed the principle in the view taken of cloud upon his title, only upon condition that he refunded all the taxes Bank of Alma v. Hamilton, 85 Neb. 441, 133 Am. St. Rep. 676, 123 N. W. 458; United Cigarette Machine Co. V. Brown, 119 Va. 813, L. R. A. 1917F, 1100, 89 S. E. 850, citing this paragraph of the text. A mortgagor seeking to quiet title against an illegal sale under the mortgage must offer to do equity by paying what is equitably due: Johnston v. S. F. Sav. Union, 75 Cal. 134, 7 Am. St. Rep. 129, 16 Pac. 753; Loney v. Courtnay, 24 Neb. 580, 39 N. W. 616; even though the statute of limitations has barred the debt; Booth v. Haskins, 75 Cal. 271, 17 Pac. 225; De Cazara V. Orena, 80 Cal. 132, 22 Pac. 74; Hall V. Arnot, 80 Cal. 348, 22 Pac. 200. The same is true of relief against other void judicial sales: Galveston, etc., R. R. Co. v. Blake- ney, 73 Tex. 180, 11 S. W. 174; Eobertson v. Bradford, 73 Ala. 116. A mortgagor who seeks to cancel a mortgage on his homestead as a cloud on his title, on the general ground of defects in its execution and acknowledgment, must offer to do equity by refunding the mort- gage money with lawful interest: Grider v. American Freehold L. & M. Co., 99 Ala. 281, 42 Am. St. Rep. 58, 12 South. 775. And, in general, while the cases are somewhat con- flicting, an unsatisfied mortgage se- curing a debt barred by the statute of limitations cannot be removed as a cloud on title unless the plaintiff pays or tenders the debt, or recog- nizes it as constituting an existing lien: Power & Irr. Co. v. Capay Ditch Co., 226 Fed. 634, 141 C. C. A. 390 (bill to redeem) ; Provident Mutual Building Loan Ass'n v. Schwertner, 15 Ariz. 517, 140 Pac. 495; Sturdivant v. MeCorley, &'3 Ark. 278, 11 L. R. A. (N. S.) 825, and note, 103 S. W. 732 (grantor of land as security, seeking aid of equity to defeat grantee's eject- ment, must recognize debt as exist- ing lien) ; Burns v. Hiatt, 149 Cal. 617, 117 Am. St. Rep. 157, 87 Pac. 196; Marschutz v. Seltzor, 5 Cal. App. 140, 89 Pac. 877; Cory v. Santa Ynez Land & Imp. Co., 151 Cal. 778, 91 Pac. 647 (mortgagee in possession cannot be ousted until debt is paid) ; Green v. Thornton, 8 Cal. App. 160, 96 Pac. 382 (same; Baggio V. Palmtag, 155 Cal. 797, 103 Pac. 312 (same); Bulson v. Moffatt, 173 Cal. 685, 161 Pac. 259; Hobson V. Huxtable, 79 Neb. 340, 116 N. W. 278 (where defendant ia entitled to be subrogated to the mortgage) ; Barney v. Chamberlain, 84 Neb. 785, 124 N. W. 482; Pettit v. Louis, 88 Neb. 496, 34 L. R. A. (N. S.) 356, 129 N. W. 1005 (mortgagee in possession cannot be ousted until debt is paid) ; Tracy v. Wheeler, 15 N. D. 248, 6 L. R. A. (N. S.) 516, 107 N. W. 68; Cotton v. Ilor- ton, 22 N. D. 1, 132 N. W. 225; Keller v. Souther, 26 N. D. 358, L. R. A. 1916B, 1218, 144 N. W. 671. In accordance with the same gen- eral principle, an insurance com- pany, suing to cancel a policy for fraud, must return the premiums, though the insured could not sue to recover them: Metropolitan Life Tns. Co. V. Freedman, 159 Mich. 114, 32 L. R. A. (N. S.) 298, 123 N. W. 547, and cases collected in note. §394 EQUITY JURISPRUDENCE. 732 it by the great majority of judicial opinions, namely, as a universal rule guiding the court of equity in its administra- which had been advanced or paid by the party to whom the deed was And the exercise of an invalid power of attorney to collect future wages cannot be enjoiued, unless plaintiff pays the defendant the money due him: Cox v. Hughes, 10 Cal. App. 553, 102 Pae. 956. And an infant seeking to set aside a mortgage on the theory that the defendant is a non-resident corpora- tion and had no power to make the loan must tender the amount due under the mortgage: Coburn v. Coke, 193 Ala. 364, 69 South. 574. One who seeks the reformation of a deed in his own favor will be de- nied relief, unless he is willing that other mistakes in the deed be re- formed in favor of the defendants: Morisey v. Swinson, 104 N. C. 555, 10 S. E. 754. If a husband, after voluntarily conveying property to his wife, again conveys the same property in trust to secure money advanced at his request to discharge an existing lien against the prop- erty, the deed of trust cannot be set aside as a cloud on the wife's title, unless the money so advanced is re- paid: Martin v. Martin, 164 111. 640, 56 Am. St. Rep. 219, 45 N. E. 1007. In Interstate Sav. & L. Ass'n v. Badgley, 115 Fed. 390, the maxim was applied, and the court held that a complaint by a savings and loan association to foreclose a mortgage was without equity, where it ap- peared that in order to procure the loan the mortgagor was obliged to subscribe for stock, and that the withdrawal value of the stock, plus the premiums paid by the mortga- gor, etc., more than equaled the face of the loan, and that the interest paid on the average balance due on the loan amounted to about twelve per cent. See the follow- ing cases for miscellaneous illustra- tions: Neal V. Briggs, 110 Fed. 477; Allen v. McMannes, 156 Fed. 615 (a court of bankruptcy in set- ting aside a voidable preference may enforce the equities of defend- ant against the other creditors) ; Hobbs T. Nashville, C. & St. L. R'y Co., 122 Ala. 602, 82 Am. St. Eep. 103, 26 South. 739; Taylor v. Dwyer, 131 Ala. 91, 32 South. 509; De Walsh v. Braman, 160 HI. 415, 43 N. E. 597; Springfield Traction Co. V. Warrick, 249 111. 470, Ann. Cas. 1912A, 187, 94 N. E. 933 (in- junction sought to restrain action of ejectment brought for breach of con- dition subsequent; equity may im- pose as condition of the injunction that complainant -pay damages for breach of covenant) ; Wicks v. Dean, 103 Ky. 69, 44 S. W. 397; Bunnell v. Bunnell, 23 Ky. L. Rep. 800, 64 S. W. 420; Anderson v. McXeal (Miss.), 34 South. 1; Hanson v. Neal, 215 Mo. 256, 114 S. W. 1073 (suit to set aside sale under trust deed) ; Trenton Pass. R'y Co. v. Wilson (N. J.), 40 Atl. 597; San Antonio & A. P. R'y Co. v. Gurley (Tex.), 47 S. W. 513; Harrison v. Manson, 95 Va. 593, 29 S. E. 420; Ensign v. Batterson (Conn.), 36 Atl. 51. For the im- portant application of the maxim to parties seeking rescission or cancel- lation of transactions on the ground of fraud, mistake, etc., and the equi- table theory of restoring all the par- ties to their original position, see § 910, and Pom. Equit. Remedies, 733 HE WHO SEEKS EQUITY MUST DO EQUITY. § 394 tion of every kind of relief, and to be applied in practice according to the circumstances of the particular case be- fore the court for decision. In this aspect of the principle it is not regarded as the source of any special doctrine of the equity jurisprudence, nor as the foundation of any given: Reed v. Tyler, 56 111. 288.® A co-surety, asking to be relieved from a judgment against him for the whole demand secured, can only obtain the relief by paying his own contributory portion of the debt : Creed v. Scruggs, 1 Heisk. 590. A widow suing for her dower must account for the use, rent, and profits of the land which she has occupied in excess of her third : McLaughlin v. McLaughlin, 20 N. J. Eq. 190. On the other hand, if the heir sues to set aside his deed to the widow, and for an accounting, he must allow to her one-third of the income in respect of her dower right : Ames v. Ames, 1 Cin. Rep. 559. A plaintiff suing in equity for a partition must contribute his proportion of a mortgage on the land which had been paid off by the defendant : Campbell v. Campbell, 21 Mich. 438; and see Comstock v. Johnson, 46 N. Y. 615 {ante, § 387, in note) ; Phillips v. Phillips, 50 Mo. 603; Kinney v. Con. Virginia M. Co., 4 Saw. 383; Boskowitz v. Davis, 12 Nev. 446; Scammon v. Kimball, 5 Biss. 431; Anderson v. Little, 26 N. J. Eq. 144; Lohman v. Crouch, 19 Gratt. 331; Lanning v. Smith, 1 Pars. Cas. 16. It is held that the principle also applies to a defendant who sets up an affirmative equitable defense claim- ing some affirmative relief, since he is then in exactly the same position as a plaintiff: See Tongue v. Nutwell, 31 Md. 302.* This must be the true chapter on "Cancellation." For its 163 Pac. 425; but see Laffitte v. City application to the cancellation of of Superior, 142 Wis. 73, 125 N. W. deeds, etc., of insane persons, see 105 (otherwise where right of tax- § 946, For its application in behalf title claimant has been extinguished of persons holding under defective by statute of limitations), title who in good faith have made § 393, («i) Defendant Claims Af- improvements, see § 1241, note. firmative Relief. — This sentence of § 393, (c) Setting Aside Invalid the note is quoted in Martin v. Tax Deed. — See, also, Hickman v. Spaulding, 40 Okl. 191, 137 Pac. 882, Kempner, 35 Ark. 505; Alexander v. holding, in accordance with the au- Merriek, 121 111. 606, 13 N. E. 190; thor's statement following, that a Peckham v. Millikan, 99 Ind. 352; vendor, defendant in a suit for spe- Steuart v. Meyer, 54 Md. 454; and cific performance, who sets up as a the recent cases: Elder v. Board of defense that he elected to rescind on Com'rs of Chaffee County, 33 Colo. account of the delay or default of 475, 81 Pac. 244; Wagner v. Under- plaintiff, and who asks no affirma- hill, 71 Kan. 637, 81 Pac. 177; Mor- tive relief, is not obliged to tender rison v. Semer, 164 Mich. 208, 129 the portion of the purchase price or N. W. 1; Bagley v. Bloch, 83 Or. 607, other consideration received. To the § 395 EQUITY JUEISPRUDENCE. 734 special equitable interest or primary right. There is, how- ever, another phase of the principle ; it may be looked upon in another light. It is not wholly a rule for the guidance ^of the equity judge in measuring out and apportioning re- liefs among litigants. It has exercised a molding 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. The full scope and effect of such doctrines can only be under- stood by a clear perception of the relations which connect them with this their common origin. I shall therefore con- clude the discussion of the present section by a brief men- tion of the doctrines which are thus, as it. seems to me, directly referable to the principle that he who seeks equity must do equity. § 395. Of Election. — The relation which plainly connects all these doctrines with the principle in question is the fact that the equitable right or interest of one party, recognized and protected by each of them, always grows out of, or is necessarily connected with, the recognition and maintenance limitation of the principle in its application to defendants; it certainly does not and cannot apply to defendants generally, who merely seek to defeat the plaintiff's demand, and ask no affirmative relief for themselves, either directly or indirectly. Por example, the borrower, when sued upon a usurious obligation, may set up the defense of usury, without paying anything. same effect, Garbutt & Donovan v. relief, and should be granted to de- Mayo, 128 Ga. 269, 13 L. R. A. fendant without imposing the con- (N. S.) 58, 57 S. E. 495; and espe- dition, by way of doing equity to cially City of Columbus v. Mercan- the bondholders of the company, tile Trust & Deposit Co. of Balti- that the city should purchase por- more, 218 U. S. 6-15, 54 L. Ed. 1193, tions of the waterworks system). 31 Sup. Ct. 105 (complainant water For examjjle of application of maxim company sued to enjoin city from to defendant's cross-complaint in constructing municipal waterworks suit to quiet title, see Kerr v. Me- in violation of its contract with Creary, 84 Neb. 315, 120 N. W. 1117. complainant; city by cross-bill In Charleston & W. C. E'y Co. v. sought rescission of the contract for Hughes, 105 Ga. 1, 70 Am. St. Rep. non-performance by complainant; 17, 30 S. E. 972, it is held that the held, that this was merely defensive maxim applies to an iuterveuor. 735 - HE WHO SEEKS EQUITY MUST DO EQUITY. § 395 of the equitable right or interest of another party arising from the same transaction or subject-matter. In other words, the equity of one exists by the operation of the doc- trine only because the equity of another is admitted and provided for The doctrine itself is thus based upon the preservation of reciprocal or correlative equities. The first of the doctrines which I shall notice is that of election. This doctrine involves the notion that no man can claim in- consistent rights with regard to the same subject, and that any one who asserts an interest under an instrument is bound to give full effect to that instrument ; he cannot both accept and reject it, or avail himself of its benefits as to a part, and defeat its provisions as to other parts. Election then originates in inconsistent or alternative donations, — two gifts, with the intention, express or implied, that one shall be a substitute for the other. The donee is entitled, not to both, but to the choice of either.^ The doctrine is applied under two somewhat differing states of circum- stances, but the principle is the same in each. If the indi- vidual to whom, by an instrument of donation, a benefit is offered possesses a previous claim on the donor, and an intention appears that he shall not both receive the donation and enforce the claim, he is required by the doctrine to elect between his original and his substituted rights; the gift being designed as a satisfaction of the claim, he cannot accept the former without renouncing the latter. In the second case, the owner of an estate having, in an instrument of donation, applied to the property of another expressions which, were that property his own, would amount to an effectual disposition of it to a third person, and having by the same instrument disposed of a portion of his own estate in favor of the proprietor whose rights he assumed, the doctrine imposes upon that proprietor the duty of electing either to relinquish the benefit conferred upon him by the instrument, if he asserts his own inconsistent proprietary §395, (a) The text is quoted in Cooley v. Houston, 229 Pa. St. 495, 78 Atl. 1129. § 396 EQUITY JUKISPRUDENCE. 736 rights, or if he accepts that benefit, to complete the intended disposition by conveying, in conformity to it, that portion of his own property which it purports to affect. ^ It is very evident that this doctrine is based upon the principle that the party who, under such circumstances, asserts his equi- table claim to one of his rights must also do equity by re- linquishing the other to the persons who in that case are entitled to it, and to that end he is compelled to make an election between the two. § 396. Of Marshaling. — The second doctrine which I shall notice is that known as the marshaling of securities. *'If a person who has two real estates mortgages both to one person, and afterwards only one estate to a second mort- gagee, the court, in order to relieve the second mortgagee, has directed the first to take his satisfaction out of that estate only which is not in mortgage of the second mort- gagee, if that is sufficient to satisfy the first mortgage, in order to make room for the second mortage." ^ The same rule applies wherever one has any lien or security on two funds, and another has a subsequent lien on only one of them. This doctrine is plainly referable to the principle. The holder of the security on two funds is compelled to shape his own remedy, so as to preserve, if possible, the equity of the one whose lien extends to but one fund.* In fact, the whole theory with respect to the marshaling of assets seems to be derived, in part at least, from the same §395, 1 SneU's Equity, 178, 179; Gretton v. Haward, 1 Swanst. 433, and note ; Noys v. Mordaunt, 2 Vern. 581 ; Streatfield v. Streatfield, Cas. t. Talbot, 176, 1 Lead. Cas. Eq. 503, 510, 541. § 396, 1 Per Lord Hardwicke, in Lanoy v. Duke of Athol, 2 Atk. 446; Hughes V. Williams, 3 Maen. & G. 690; Tidd v. Lister, 10 Hare, 157, 3 De Gex, M. & G. 857; Heyman v. Dubois, L. R. 13 Eq. 158; Evertson v. Booth, 19 Johns. 486; Doit v. Shaw, 4 Johns. Ch. 17; Kendall v. New England Co., 13 Conn. 384; House v. Thompson, 3 Head, 512. § 396, (a) The text is quoted in National Bank of Auburn, 68 N. Y. Boone v. Clark, 129 111. 466, 5 Sup. 68, 57 App. Div. 468, affirmed, L. E. A. 276, 21 N. E. 850; Breed v. 171 K Y. 648, 63 N. E. 1315. 737 MUST COME INTO EQUITY WITH Ci.EAN HANDS. § 397 source. A few other doctrines might, I think, be speci- fied as thus related by a common descent ; but enough has already been said to show the great importance of the prin- ciple, lie who seeks equity must do equity, both as a prac- tical rule governing the administration of remedies, and as the germ of equitable doctrines. SECTION IV. HE WHO COMES INTO EQUITY MUST COME WITH CLEAN HANDS. ANALYSIS. § 397. General meaning of this principle. § 398. Is based upon conscience and good faith. § 399. Limitations upon it. §§ 400-403. Illustrations of its application. § 400. In specific performance. § 401. In cases of fraud. § 402. In cases of illegalitj. § 403. Ldmitation in cases of fraud and illegalitj; parties not in pari delicto. § 404. Conclusion. § 397. Its General Meaning.^ — This maxim is sometimes expressed in the form, He that hath committed iniquity shall not have equity. Like the one described in the preced- ing section, it is not, in its ordinary operation and effect, the foundation and source of any equitable estate or interest, nor of any distinctive doctrine of the equity jurisprudence ; it is rather a universal rule guiding and regulating the action of equity courts in their interposition on behalf of suitors for any and every purpose, and in their adminis- tration of any and every species of relief. Eesembling the former maxim in this respect, it differs from that principle § 397, (a) Sections 397-404 are Keener v. Moslander, 171 Ala. 533, cited in Snow v. Blount, 182 Mass. 54 South. 8S1; Ilo Oil Co. v. Indiana 489, 65 N. E. 845, and in Drennen v. N. G. & O. Co., 174 Ind. 63o, 30 Heard, 211 Fed. 335, 128 C. C. A. L. R. A. (N. S.) 1057, 92 N. E. 1. 14. Sections 397-399 are cited in 1—47 § 397 EQUITY JURISPRUDENCE. 738 in some most important and essential features. In apply- ing the maxim, He who seeks equity must do equity, as a general rule regulating the action of courts, it is necessarily assumed that different equitable rights have arisen from the same subject-matter or transaction, some in favor of the plaintiff and some of the defendant; and the maxim re- quires that the court should, as the price or condition of its enforcing the plaintiff's equity and conferring a remedy upon him, compel him to recognize, admit, and provide for the corresponding equity of the defendant, and award to him also the proper relief. The maxim does not assume that the plaintiff has done anything unconscientious or in- equitable ; much less does it refuse to him all relief ; on the contrary, it grants to him the remedy to which he is en- titled, but upon condition that the defendant's equitable rights are protected by means of the remedy to which he is entitled. On the other hand, the maxim now under con- sideration. He who comes into equity must come with clean hands, is much more efficient and restrictive in its opera- tion. 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 a party, who, as actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable prin- ciple, in his prior conduct, then the doors of the court will be shut against him in limine; the court will refuse to in- terfere on his behalf, to acknowledge his right, or to award him any remedy.^ §397, (b) Quoted in Lewis v. Hoi- App. 59, 116 Pac. 296; in Miller v. drege, 56 Neb. 379, 76 N. W. 890; Kraus (Cal. App.), 155 Pac. 834; in Pineville Land & Lumber Co. v. Wellsville Oil Uo. v. Miller, 44 Okl. Hollingsworth, 21 Ky. L. Eep. 899, 493, 145 Pac. 344; in Conners v. 53 S. W. 279; in Ashe-Carson Co. v. Conners Bros. Co., 110 Me. 428, 86 Bonifay, 147 Ala. 376, 41 South. 816; Atl. 843; the greater part of the in Allstead v. Laumeister, 16 Cal. paragraph is quoted in Harton r. 739 MUST COME INTO EQUITY WITH CLEAN HANDS. § 398 § 398. Is Based upon Conscience and Good Faith. — The principle involved in this maxim is merely the expression of one of the elementary and fundamental conceptions of equity jurisprudence. We have seen that in the origin of the jurisdiction the theory was adopted that a court of equity interposes only to enforce the requirements of con- science and good faith with respect to matters lying out- side of, or sometimes perhaps opposed to, the law. The action of the court was, in pursuance of this theory, in a certain sense discretionary; and the terms ''discretionary" and ''discretion" are still occasionally used by modern equity judges while speaking of their jurisdiction and reme- dial functions. Whatever may be the strictly accurate theory concerning the nature of equitable interference, the principle was established from the earliest days, that while the court of chancery could interpose and compel a defend- ant to comply with the dictates of conscience and good faith with regard to matters outside of the strict rules of the law, or even in contradiction to those rules, while it could act upon the conscience of a defendant and force him to do right and justice, it would never thus interfere on be- half of a plaintiff whose own conduct in connection with the same matter or transaction had been unconscientious or unjust, or marked by a want of good faith, or had vio- lated any of the principles of equity and righteous dealing which it is the purpose of the jurisdiction to sustain. While a court of equity endeavors to promote and enforce justice, good faith, uprightness, fairness, and conscientiousness on the part of the parties who occupy a defensive position in judicial controversies, it no less stringently demands the Little, 188 Ala. 640, 65 South. 951. C, C. A. 499, dissenting opinion of Cited itt Michigan Pipe Co. v. Fre- Sanborn, J.; Union Central Life Ins. mont Ditch, etc., Co., Ill Fed. 284, Co. v. Drake, 214 Fed. 536, 131 C, C. 49 C. C. A. 324; City of Chicago v. A. 82; International Land Co. v. Union Stock Yards & Transit Co., Marshall, 22 Okl. 693, 19 L. R. A. 164 111. 224, 35 L. B. A. 281, 45 (N. S.) 1056, 98 Pac. 951; Miller v. N. E. 430; Scott v. Austin, 36 Minn. Jackson Township, 178 lud. 503, 9!) 460, 32 N. W. 89, 864; also in N. E. 102. Stewart v. Wright, 147 Fed. 321, 77 §398 EQUITY JURISPRUDENCE. 740 same from the litigant parties who come before it as plain- ti.iS or actors in such controversies.* This fundamental principle is expressed in the maxim, He who comes into a court of equity must come with clean hands; and although not the source of any distinctive doctrines, it furnishes a most important and even universal rule affecting the entire administration of equity jurisprudence as a system of reme- dies and remedial rights. ^ ^ § 398, 1 Overton v. Banister, 3 Hare, 503 ; Lewis's Appeal, 67 Pa. St. 166; Johns v. Norris, 22 N. J. Eq. 102; Walker v. HUl, 22 N. J. Eq. 513; Wilson V. Bird, 28 N. J. Eq. 352; Blealdey's Appeal, 66 Pa. St. 187; Creath v. Sims, 5 How. 192; Weakley v. Watkins, 7 Humph. 356, 357; Atwood V. risk, 101 Mass. 363, 100 Am. Dec. 124; Gannett v. Albee, 103 Mass. 372; Marcy v. Dnnlap, 5 Lans. 365; Paine v. Lake Erie, etc., R. R., 31 Ind. 283. §398, (a) The text is quoted in Weegham v. Killefer, 215 Fed. 168; affirmed, 215 Fed. 289, L. B. A. 1915A, 820, 131 C. C. A. 558; Harton v. Little, 188 Ala. 640, 65 South. 951; in Wellsville Oil Co. v. Miller, 44 Okl. 493, 145 Pac. 344; in Sanders V. Cauley, 52 Tex. Civ. App. 261, 113 S. W. 560. It has been held that the maxim assumes some de- gree of moral guilt on the part of the complainant; that the fraud of an agent imputed by law to his principal does not render the lat- ter's hands "unclean," within the meaning of the maxim: Vulcan De- tinning Co. V. American Can Co., 72 N. J. Eq. 387, 12 L. R. A. (N. S.) 102, 67 Atl. 339, per Garrison, J., reversing 70 N. J. Eq. 588, 62 Atl. 881. Bed quwre. Fraud, in equity, often consists in the unconscien- tious use of a legal advantage orig- inally gained with innocent intent: See post, chapters on Actual and Constructive Fraud, passim. § 398, (b) Cited in Michigan Pipe Co. V. Fremont Ditch, etc., Co., Ill Fed. 284, 49 C. C. A. 324; American Ass'n v. Innis, 109 Ky. 595, 60 S. W 388; also in Union Central Life Ins Co. v. Drake, 214 Fed. 536, 131 C. C A. 82; Stewart v. Wright, 147 Fed 321, 77 C. C. A. 499, dissenting opin ion of Sanborn, Cir. J.; Baird v Howison, 154 Ala. 359, 45 South. 668 Colby V. Title Ins. & Trust Co., 160 Cal. 632, Ann. Cas. 1913A, 515, 35 L. R. A. (N. S.) 813, 117 Pac. 913; Prudential Life Ins. Co. v. La Chance, 113 Me. 550, 95 Atl. 223; Caldwell V. Virginia Fire & Marine Ins. Co., 124 Tenn. 593, 139 S. W. 698; Miller V. Jackson Township, 178 Ind. 503, 99 N. E. 102; and quoted in Wells- ville Oil Co. V. Miller, 44 Okl. 493, 145 Pac. 344. It is held, in accord- ance with the maxim, that a plain- tiff who maintains a nuisance has no standing in equity to enjoin its unauthorized abatement: Pittsburgh, C, C. & St. L. E'y Co. v. Town of Crothersville, 159 Ind. 330, 64 N. E. 914. 741 MUST COME INTO EQUITY WITH CLEAN HANDS. § 399 § 399. Its Limitations. — Broad as the principle is in its operation, it must still be taken with reasonable limitations ; it does not apply to every unconscientious act or inequitable conduct on the part of a plaintiff. The maxim, considered as a general rule controlling the administration of equi- table relief in particular controversies, is confined to mis- conduct in regard to, or at all events connected with, the matter in litigation, so that it has in some measure affected the equitable relations subsisting between the two parties, and arising out of the transaction; it does not extend to any misconduct, however gross, which is unconnected with the matter in litigation, and with which the opposite party has no concern. When a court of equity is appealed to for relief it will not go outside of the subject-matter of the controversy, and make its interference to depend upon the character and conduct of the moving party in no way affect- ing the equitable right which he asserts against the defend- ant, or the relief which he demands. ^ «■ § 399, 1 Lewis's Appeal, 67 Pa. St. 166; Meyer v. Yesser, 32 Ind. 294. In Lewis's Appeal, 67 Pa. St. 166, the court say: "It is not every un- founded claim which a man may make, or unfounded defense 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 wiUful misconduct in regard to the matter in liti- gation : Snell's Equity, 25. All the illustrations given in Francis's Maxims of Equity, 5, under the maxim, as he states it, He that hath committed iniquity shall not have equity, show this." §399, (a) The text is quoted in App. 261, 113 S. W. 560; cited in Be- American Ass'n v. Innis, 109 Ky. thea v. Bethea, 116 Ala. 265, 22 595, 60 S. W. 388; Rice v. Eocke- South. 561; Foster v. Winchester, 92 feller, 134 N. Y. 174, 30 Am. St. Ala. 497, 9 South. 83; Moseler v. Rep. 658, 17 L. R. A. 237, 31 N. E. Jacobs, 66 111. App. 571; John Ams- 907; quoted, also, in Ashe-Carson Co. field Co. v. Edw. B. Grossman & Co., V. Bonifay, 147 Ala. 376, 41 South. 98 111. App. 180; Woodward v. Wood- 816; Lyman v. Lyman, 90 Conn. 399, ward, 41 N. J. Eq. 224, 4 Atl. 424; L. R. A. 1916E, 643, 97 Atl. 312; Carr Langdon v. Templeton, 66 Vt. 173, V. Craig, 138 Iowa, 526, 116 N. W. 28 Atl. 866; Liverpool & L. & G. Ins. 720; Funck v. Farmers' Elevator Co., Co. v. Clunie, 88 Fed. 160; Viertel v. 142 Iowa, 621, 24 L. R. A. (N. S.) Viertel (Mo. App.), 75 S. W. 187; 108, 121 N. W. 53, dissenting opin- cited, also, in Camors-McConnell Co. ion; Sanders v. Cauley, 52 Tex. Civ. v. McConnell, 140 Fed. 412; affirmed, §400 EQUITY JUEISPBUDENCE, 742 § 400. Illustrations — Specific Performance. — I shall now give some examples to illustrate the circumstances under which this principle operates in the administration of equi- table relief, and the manner in which it is applied. The 140 Fed. 987, 72 C. C. A. 681; Sperry & Hutchinson Co. v. Louis Weber Co., 161 Fed. 219; Bentley v. Tib- balB, 223 Fed. 247, 138 C. C. A. 489; Bradley Co. v. Bradley, 165 Cal. 237, 131 Pac. 750; American-Hawaiian Engineering & Construction Co. y. Butler, 165 Cal. 497, 133 Pac. 280; Miller v. Kraus (Cal. App.), 155 Pac. 834; Shotwell v. Stickle, 83 N. J. Eq. 188, 90 Atl. 246; Cheuvront V. Horner, 62. W. Va. 476, 59 S. E. 964. See, also, Coeur d'Alene Cons. & M. Co. V. Miners' Union, 51 Fed. 260, 19 L. R. A. 382; Shaver v. Hel- ler & Merz Co., 108 Fed. 831, 48 C. C. A. 48, affirming 102 Fed. 882; General Electric Co. v. Wise, 119 Fed. 922; Trice v. Comstock, 121 Fed. 620, 61 L. R. A. 176, and cases cited; Knapp v. S. Jarvis Adams Co., 135 Fed. 1008, 70 C. C. A. 536; Camors-McConnell Co. v. McConnell, 140 Fed. 412; affirmed, 140 Fed. 987, 72 C. C. A. 681 (defense that in- junction sought to enforce contract is in aid of a combination in re- straint of trade) ; Cunningham v. Pettigrew, 169 Fed. 335, 94 C. C. A. 457; Primeau v. Granfield, 180 Fed. S47 (rule laid down that maxim applies only when prosecution of suitor's rights itself involves the protection of wrong-doing) ; Chute V. Wisconsin Chemical Co., 185 Fed. 115 (reprehensible conduct of plain- tiff, subsequent to bringing suit, and unconnected with cause of action); Cropper v. Davis (C. C. A.), 243 Fed. 310; Yale Gas Stove Co. v. Wil- cox, 64 Conn. 101, 128, 42 Am. St. Rep. 159, 173, 20 Atl. 303; Delaware Surety Co. v. Layton (Del. Ch.), 50 Atl. 378; Brown v. Jacobs Pharmacy Co., 115 Ga. 429, 90 Am. St. Rep. 126, 41 S. E. 553; City of Chicago v. Union Stock Yards & Transit Co., 164 111. 224, 35 L. R. A. 281, 45 N. E. 430; Pitzele v. Cohn, 217 III. 30, 75 N. E. 392; Ely y. King- Richardson Co., 265 111. 148, L. R. A. 1915B, 1052, 106 N. E. 619 (plaintiff, an employee of defendant, having been discharged for bad faith in organizing a rival company, sought an accounting to determine his past compensation; held, the maxim did not apply, as the relief was not founded in any way on his wrongful conduct) ; Mason v. Carrothers, 105 Me. 392, 74 Atl. 1030; Beekman v. Marsters, 195 Mass. 205, 122 Am. St. Rep. 232, 11 Ann. Cas. 332, 11 L. R. A. (N. S.) 201, 80 N. E 817; Lurie v. Pinanski, 215 Mass 229, 102 N. E. 629; Cuba Colony Co, T. Kirby, 149 Mich. 453, 112 N. W. 1133; Williams v. Beatty, 139 Mo. App. 167, 122 S. W. 323 (a prior trespass by plaintiff is no defense to injunction against defendant's sim- ilar trespass) ; Hodge v. United States Steel Co., 64 N. J. Eq. 90, 53 Atl. 553; Kinner v. Lake Shore & M. S. R'y Co., 69 Ohio, 339, 69 N. E. 614; Dempster v. Baxmyer, 231 Pa. 28, 79 Atl. 805 (fact that plaintiff agreed to improper use of a portion of a fund will not bar his right to an account for balance) ; Upchurch V. Anderson (Tenn. Ch. App.), 52 S. W. 917; Post V. Campbell, 110 Wis. 378, 85 N. W. 1032. This maxim "denies all relief to a suitor, 743 MUST COME INTO EQUITY WITH CLEAN HANDS. § 400 first instance which I shall mention is found in the familiar doctrine which controls the equitable remedy of the specific performance of contracts. A contract may be perfectly valid and binding at law ; it may be of a class which brings however well founded his claim to equitable relief may otherwise be, if, in granting the relief which he seeks, the court would be required, by implication even, to affirm the validity of an unlawful agreement, or give its approval to inequitable conduct on his part. But a court of equity is not an avenger of wrongs committed at large by those who re- sort to it for relief, however careful it may be to withhold its approval from those which are involved in the subject-matter of the suit, and which prejudicially affect the rights of one against whom relief is sought"; Kin- ner v. Lake Shore & M. S. B'y Co., 69 Ohio St. 339, 69 N. E. 614. Thus, it has been held or stated that the fact that plaintiff was a member of an illegal association or combination was no defense to a suit to enjoin ticket "scalping" (Kinner v. Lake Shore & M. S. R'y Co., 69 Ohio St. 339, 69 N. E. 614; Pennsylvania Co. V, Bay, 138 Fed. 203; and see Kirby V. Union Pac. R. Co., 51 Colo. 509, Ann. Cas. 1913B, 461, 119 Pac. 1042); or infringement of a patent (General Electric Co. v. Wise, 119 Fed. 922; United States Fire Escape Counterbalance Co. v. Joseph Hal- sted Co., 195 Fed. 295); or a suit to enjoin unfair and fraudulent com- petition (Coca-Cola Co. v. Gay-Ola Co., 200 Fed. 720, lift C. C. A. 164) ; or unlawful interference by a labor union (Coeur d'Alene Cons. & M. Co. V. Miners' Union, 51 Fed. 260, 19 Ii. R. A. 382. But see Cornellier v. Haverhill Shoe Mfrs. Ass'n, 221 Mass. 554, L. E. A. 1916C, 218, 109 N. E. 643 (plaintiff, suing for in- junction against blacklisting, denied relief because he was in a combina- tion to strike and joined in unlawful methods of conducting the strike). To a suit for injunction against the unfair use of the trade-name of one of complainant's products, it is no defense 4;hat other products manu- factured by the complainant bore misleading names: Shaver v. Heller & Merz Co., 108 Fed. 821, 48 C. C. A. 48, affirming 102 Fed. 882. A rail- road may enjoin a city from remov- ing its tracks, although it has used its road for certain unauthorized purposes not involved in the suit; City of Chicago v. Union Stock Yards & Transit Co., 164 111. 224, 35 L. R. A. 281, 45 N. E. 430. To an injunction against a combination to destroy complainant's business it is no defense that complainant has on some occasions sold spurious goods: Brown v. Jacobs Pharmacy Co., 115 Ga. 429, 90 Am. St. Rep. 126, 57 L. R. A. 547, 41 S. E. 553. In Dela- ware Surety Co. v. Lay ton (Del. Ch,), 50 Atl. 378, the plaintiff sought an injunction to prevent the secre- tary of state from taking the plain- tiff's certificate of incorporation into another state for use in a prosecu- tion against its president and secre- tary for perjury in swearing to the certificate; it was held that such perjury was not so connected with the subject-matter as to justify the application of this maxim to the plaintiff's suit. The correctness of this decision seems doubtful. ^ 400 EQUITY JURISPRUDENCE. 744 it witliin the equitable jurisdiction, because the legal rem- edy is inadequate; but if the plaintiff's conduct in obtain- ing it, or in acting under it, has been unconscientious, in- equitable, or characterized by bad faith, a court of equity will refuse him the remedy of a specific performance, and will leave him to his legal remedy by action for damages.* It is sometimes said that the remedy of specific perform- ance rests with the discretion of the court; but, rightly viewed, this discretion consists mainly in applying to the plaintiff the principle, lie who comes into a court of equity must come with clean hands, although the remedy, under certain circumstances, is regulated by the principle, He who seeks equity must do equity. The doctrine, thus applied, means that the party asking the aid of the court must stand in conscientious relations towards his adversary; that the transaction from which his claim arises must be fair and just, and that the relief itself must not be harsh and oppressive upon the defendant.^ By virtue of this prin- ciple, a specific performance will always be refused when the plaintiff has obtained the agreement by sharp and un- scrupulous practices, by overreaching, by concealment of important facts, even though not actually fraudulent, by trickery, by taking undue advantage of his position, or by any other means which are unconscientious; and when the contract itself is unfair, one-sided, unconscionable, or affected by any other such inequitable feature; and when the specific enforcement would be oppressive upon the de- fendant, or would prevent the enjoyment of his own rights, or would in any other manner work injustice. ^ ^ This appli- §400, IWillard v. Tayloe, 8 Wall. 557, 565, per Field, J.; Marble Co. V. Ripley, 10 Wall. 339, 356, 357; Fish v. Leser, 69 lU. 394, 395; Stone V. Pratt, 25 111. 25, 34; Quinn v. Roath, 37 Coun. 16, 24; Cooper v. Pena, 21 Cal. 403, 411; Bruck v. Tucker, 42 Cal. 346, 353; Aston v. Robinson, §400, (a) The text is quoted in Smith v. Price, 125 Ark. 589, 1S9 Wcegham v. Killefer, 215 Fed. 168; S. W. 167. affirmed, 215 Fed. 289, L. R. A. §400, (c) The text is quoted in 1915A, 820, 131 C. C. A. 558. Harton v. Little, 188 Ala. 640, 65 §400, (b) The text is quoted in South. 951. Cited in Michigan Pipe 745 MUST COME INTO EQUITY WITH CLEAN HANDS. § 401 cation of the principle, better perhaps than any other, illus- trates its fuPl meaning and effect; for it is assumed that the contract is not illegal ; that no defense could he set up against it at law; and even that it possesses no features or incidents which could authorize a court of equity to set it aside and cancel it. Specific performance is refused simply because the plaintiff does not come into court with clean hands.d § 401. Fraud. — Another familiar illustration of the prin- ciple may be found in all cases where the plaintiff's claim is affected by his own fraud. Whatever be the nature of the plaintiff's claim and of the relief which he seeks, if his claim grows out of or depends upon, or is inseparably connected with, his own iDrior fraud, a court of equity will, in general, deny him any relief, and will leave him to whatever reme- dies and defenses at law he may have.^ * The maxim is 49 Miss. 348, 351; Weise's Appeal, 72 Pa. St. 351, 354; Snell v. Mitchell, 65 Me. 48, 50; Blackwilder v. Loveless, 21 Ala, 371, 374; Seymour v. De Laneey, 6 Johns. Ch. 222, 224; Eastman v. Plumer, 46 N. H. 464; Crane V. De Camp, 21 N. J. Eq. 414; Plummer v. Kepler, 26 N. J. Eq. 481; Sherman v. Wright, 49 N. Y. 227 ; Smoot v. Rea, 19 Md. 398 ; Phillips v. Stauch, 20 Mich. 369; Auter v. Miller, 18 Iowa, 405; Burke v. Seely, 46 Mo. 334; Mississippi, etc., R. R. v. Cromwell, 91 U. S. 643; Lamare v. Dixon, L. R. 6 H. L. 414, 423, per Lord Chelmsford. § 401, 1 Overton v. Banister, 3 Hare, 503, 506. An infant, fraudulently representing himself to be of age, obtained from trustees delivery of a Co. V. Fremont Ditch, etc., Co., Ill 1104. See, also, Trice v. Comstock, Fed. 284, 49 C. C. A. 324; Stewart v. 115 Fed. 765; Eichardson v. Walton, "Wright, 147 Fed. 321, 77 C. C. A. 49 Fed. 88S' (fraud by a partner pre- 499, dissenting opinion of Sanborn, eludes bill by him to set aside con- Cir. J.; Union Central Life Ins. Co. V. tract dissolving partnership); Han- Drake, 214 Fed. 536, 131 C. C. A. 82. ley v. Sweeny, 109 Fed. 712, 48 C. C. See, also, § 1404, and note to § 1405. A. 612 (plaintiff by fraud procured § 400, (d) The text is quoted in the insertion of his name as pur- Harton v. Little, 188 Ala. 640, 65 chaser in order confirming adminis- South. 951. trator's sale, and accordingly cqui- § 401, (a) The text is quoted in table relief to set aside deed to de- Sanders V. Cauley, 52 Tex. Civ. App. fendant, the true purchaser, was 2G1, 113 S. W. 560; Kallison v. denied); Primeau v. Granfield, 193 Poland (Tex. Civ. App.), 167 S. W. Fed. 911. 114 C. C. A. 549 (plaintiff's ■101 EQUITY JUMSPKUDENCE. 746 more frequently invoked in cases upon fraudulent con- tracts.^ If a contract has been entered into through fraud, or to accomplish any fraudulent purpose, a court of equity will not, at the suit of one of the fraudulent parties, — a par- certain amount of stock, to which he would be entitled upon his coming of age, and afterwards, when he did come of age, he demanded and re- ceived the rest of the stock. On account of this fraud, it was held that neither he nor his assignees could compel repayment by the trustees of the amount which they had thus paid over during the minority, although such payment was in fact a breach of trust, and in the absence of the fraud the trustees would have been liable. Upon the subject of an infant's cause of action for an accounting in- extricably bound up in the proof that the business was that of defrauding investors in mining schemes); Miller v. Kraus (Cal. App.), 155 Pac. 834 (plaintiff's de- ceit in inducing defendant to be- come his partner, defense to suit for accounting); Union Nat. Bank v. Hines, 177 III. 417, 53 N. E. 83; Morley Bros. v. Stringer (Mich.), 95 N. W. 978 (fraudulent grantee who pays a mortgage is not entitled to reimbursement from plaintiff in a creditor's bill) ; Morrison v. Juden, 145 Mo. 282, 46 S. W. 994; Hart v, Deitrich (Neb.), 96 N. W. 144 (part- ner who absconds with firm funds cannot subsequently obtain an ac- counting in equity) ; Roche v. Hoyt, 71 N. J. Eq. 323, 64 Atl. 174; Far- row v. Holland Trust Co., 74 Hun, 585, 26 N. Y. Supp. 502; Southern Mut. Aid Ass'n v. Blount, 112 Va. 214, 70 S. E. 487; Robinson v. Brooks, 31 Wash. 60, 71 Pac. 721 (one who files a lien knowing it to contain nonlienable items, cannot maintain bill to foreclose it) ; Raasch v. Raasch, 100 Wis. 400, 76 N. W. 591. A creditor who obtains an assignment through fraud is not entitled to the aid of a court of equity to enforce his claim under the assignment: Commercial Nat. Bank v. Burch, 141 111. 519, 33 Am. St. Rep. 331, 31 N. E. 420. Know- ingly and consciously making an un- true and excessive claim will defeat the right to a lien under a statute: Camden Iron Works v. City of Cam- den, 64 N, J. Eq. 723, 52 Atl. 477. One engaged in a fraudulent enter- prise cannot complain that his part- ner in fraud did not keep faith: Bagwell V. Johnson, 116 Ga. 464, 42 S. E. 733. In Edward Thompson Co. v. American Law Book Co. (C. C. A.), 122 Fed. 923, there are dicta to the effect that the publisher of a law en- cyclopaedia which in some instances was guilty of "piracy" in copying the language of copyrighted works without the consent of the owners of the copyrights has no standing in a court of equity to complain of in- fringement of its copyright by a rival encyelopajdia, consisting in copying lists of cases and author- ities from complainant's work. But qucere, whether complainant's mis- conduct was not unconnected with the matter in litigation, within the principle of § 399, ante. 401, (b) The text is quoted in Haymond v. Hyer (W. Va.), 92 S. E. 854. 747 MUST COME INTO EQUITY WITH CLEAN HANDS. 401 ticeps doli, — while the agreement is still executory, either compel its execution or decree its cancellation, nor after it has been executed, set it aside, and thus restore the plain- tiff to the property or other interests which he had fraudu- lently transferred.2 c Equity will leave such parties in fraud in general, and its effect as viewed by equity, see Evroy v. Nicholas, 2 Eq. Cas. Abr. 488; Cory v. Gertcken, 2 Madd. 40; Nelson v. Stocker, 4 De Gex & J. 458, 464, per Knight Bruce, L. J.; Wright v. Snowe, 2 De Gex & S. 321. As another example, a party who fraudulently or wrongfully alters a written instrument cannot maintain a suit to obtain the remedy of a reformation: Marcy v. Dunlap, 5 Lans. 365; and see Bleakley's Appeal, 66 Pa. St. 187. § 401, 2 Reynell v. Sprye, 1 De Gex, M. & G. 660, 688, 689 (decision dismissing the cross-bill of the defendant, Sprye) ; Wheeler v. Sage, 1 Wall. 518; Paine v. Lake Erie, etc., R. R., 31 Ind. 283; Creath v. Sims, 5 How. 192; White v. Crew, 16 Ga. 416, 420. 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 transferred his property for the purpose of defrauding his creditors, and afterwards seeks to set aside the transfer as against the grantee or assignee and recover back the projj- erty. The door of a court of equity is always shut against such a claim - ant.** Freeman v. Sedwick, 6 Gill, 28, 39, 46 Am. Dec. 650 ; Stewart v. § 401, (c) The text is quoted in Allstead v. La.uineister, 16 Cal. App. 59, 116 Pac. 296; Stewart v. Wright, 147 Fed. 321, 346, 77 C. C. A. 499, dissenting opinion of Sanborn, Cir. J.; and cited in McClintock v. Lois- seau, 31 W. Va. 865, 2 L. E. A. 816, 8 S. E. 612. See, also, In re Great Berlin S. Co., L. R. 26 Ch. Div, 616; Kitchen v. Eaybum, 86 U. S. (19 Wall.) 254; Selz v. Unna, 73 U. S. (Q, Wall.) 327; Eandall v. Howard, 67 U. S. (2 Black) 585; Bartle v. Cole- man, 29 U. S. (4 Pet.) 184; Scher- merhorn v. De Chambrum, 64 Fed. 195, 12 C. C. A. 81, 26 U. S. App. 212 (contract to defraud creditors); Clark V. Buffalo Hump Min. Co., 122 Fed. 243; Warshaw v. A. Elwood & Son, 83 Conn. 430, 76 Atl. 531 (agree- ment between plaintiff and defend- ant to defraud public in sale of mis- branded goods; no contribution to costs and expenses, accounting, or receivership) ; Kirkpatrick v. Clark, 132 111. 342, 22 Am. St. Kep. 531, 8 L. E. A. 511, 24 N. E. 71; Pearce v. Ware, 94 Mich. 321, 53 N. W. 1106; Pendleton v, Gondolf, 85 N. J. Eq. 308, 96 Atl. 47; Helsley v. Futz, 76 Va. 671; Smith v. Chilton, 84 Va. 840, 6 S. E. 142; Bearden v. Jones (Tenn. Ch. App.), 48 S. W. 88; Low- ther Oil Co. v. Miller-Sibley Oil Co., 53 W. Va. 501, 97 Am, St. Eep. 1027, 44 S. E. 433 (specific performance). §401, (^« P"°- cipal advancing no part of the price, (partnership real estate is held in ^^^^^ .^ ^^ resulting trust: Dongan trust for the firm). v. Bemis, 95 Minn. 220, 5 Ann. Cas. 253, 103 N. W. 882. § § 423, 424 EQUITY JURISPRUDENCE. 790 SECTION X. EQUITY WILL NOT SUFFER A WRONG WITHOUT A REMEDY. ANALYSIS. § 423. Its general meaning and effects. § 424. Limitations upon it. § 423. Its General Meaning". — This principle, wliicli is the somewhat restricted application to the equity juris- prudence of the more comprehensive legal maxim, Ubi jus ihi remedium, — wherever a legal right has been infringed, a remedy will be given, — is the source of the entire equi- table jurisdiction, exclusive, concurrent, and auxiliary. A full treatment of it, including an explanation of its scope and meaning, with its various applications and illustra- tions, would simply be a restatement of all the doctrines and rules concerning jurisdiction which have already been discussed in the first part of this work. No such unneces- sary repetition will be attempted. It is enough that the principle finds its development in the whole body of doc- trines and rules which define and regulate the equitable jurisdiction as distinguished from the jurisdiction at law. § 424. Its Limitations. — There are, however, certain im- portant limitations upon the generality of the maxim which may properly be stated here, although they have all been referred to in the Introductory Chapter, where the nature of equity is described, or in the chapters of Part First, where the doctrines concerning the exclusive and concurrent jurisdiction are explained. The first of these limitations is, that equity cannot interfere to give any remedy, unless the right in question, the invasion of which constitutes the wrong complained of, is one which comes within the scope of juridical action, of juridical events, rights, and duties. The right must belong to the purview of the municipal law, — ^must be one which the municipal law, through some of its departments, recognizes, maintains, and protects. Equity 791 WILL NOT SUFFER WRONG WITHOUT REMEDY. § 424 does not attempt, any more than the law, to deal with obli- gations and corresponding rights which are purely moral, which properly and exclusively belong to the tribunal of conscience.! * The second limitation is, that equity does not interfere to remedy any wrong where the right and the § 424, 1 It is upon this ground that where a right, undoubtedly belong- ing to the domain of the municipal law, is strictly legal, equity will not interfere merely because, under the particular circumstances of any case every legal means and instrument of obtaining relief has been tried and exhausted without avail. It is plain that if equity should interfere in any such case, it could only be on the ground that the party had a moral right; that he was morally entitled to redress; because on the assumption, the right, being strictly legal, comes within no recognized head of the equitable jurisdiction, and the only possible reason for interference by a court of equity would be that, the legal remedies proving absolutely fruit- less, and the party having no other means of redress, he has a claim upon a court of equity based upon the intrinsic righteousness of his demand. To such a purely moral claim equity does not and cannot respond. See Finnegan v. Fernandina, 15 Fla. 379, 21 Am. Rep. 292; Rees v. City of Watertown, 19 Wall. 121 ; Heine v. Levee Com'rs, 19 Wall. 658. In Rees V. Watertown, 19 Wall. 121, a holder of bonds issued by the city alleged in his bill that he had obtained judgment thereon against the city, and had also obtained a writ of mandamus to compel the city officers to raise and apply funds to satisfy the judgment, but had wholly failed of obtain- ing any redress. He prayed that the taxable property of the citizens, which he claimed was a fund for the payment of municipal debts, might be subjected to the payment of his judgment, and that the marshal might be empowered to seize and sell so much of such property as should be necessary for that purpose. The court refused relief on the ground that the demand was wholly a legal one, and that the proper remedy was by mandamus, and the mere fact that the mandamus had failed under the particular circumstances of this case did not give a court of equity any jurisdiction. The court said a court of equity "cannot assume control over that large class of obligations called imperfect obligations, resting upon conscience and moral duty only, unconnected with legal obligations." The decisions in the other cases above cited are to the same effect.** §424, (a) This paragraph of the Ct. 140; Preston v. Chicago, St. L. & text is cited in Harrigan v. Gilchrist N. 0. R. Co., 175 Fed. 487; affirmed, (Wis.), 99 N. W. 909, 933. 183 Fed. 20, 105 C. C. A. 312; Pres- § 424, (l») See, also, the analogous ton v. Sturgis Milling Co., 183 Fed. cases: Thompson v. Allen County, 1, 32 L. R. A. (N. S.) 1020, 105 C. 115 U. S. 550, 29 L. Ed. 472, 6 Sup. C. A. 293, and cases cited. § 424 EQUITY JURISPKUDENCB. 792 remedy, assuming that the right falls within the purview of the municipal law, both completely belong to the domain of the law. In order that the principle may apply, one of three facts must exist, viz., either, — 1. The right itself must be one not recognized as existing by the law ; or 2. The right existing at the law, the remedy must be one which the law cannot or does not administer at all ; or 3. The right exist- ing at the law, and the remedy being one which the law gives, the remedy as administered by the law must be inadequate, incomplete, or uncertain. Of these three alternatives, the first and second denote the exclusive jurisdiction of equity ; the third, the concurrent jurisdiction. The third limitation upon the principle is, that it does not apply where a party, whose case would otherwise come within one of the three alternatives above mentioned, has destroyed or lost or waived his right to an equitable remedy by his own act or laches. With these limitations upon its operation, the prin- ciple has been developed into the vast range of the equi- table jurisdiction, which, considered in its entirety, gives, — • 1. Legal remedies for the violation of legal rights in a more certain, complete, and adequate manner than the law can give ; 2. Equitable remedies for the violation of legal rights, which the law has no power to give with its means of pro- cedure f and 3. Remedies, either equitable or legal in their nature or form, for the violation of rights of which the law takes no cognizance, — rights which the law does not recog- nize as existing, and which it either cannot or does not protect and maintain. §424, (c) It has been laid down, this class . of cases; see Gavin v. as a principle of jurisdiction, that Curtin, 171 111. 640, 40 L. S. A. 776, equity will always give a remedy in 49 N. E. 523. 793 EQUITY FOLLOWS THE LAW. § 425 SECTION XL EQUITY FOLLOWS THE LAW. ANALYSIS. §§ 425, 426. Twofold meaning of the principle. §425. First, in obeying the law: Heard v. Stamford, per Lord Chan- cellor Talbot. I 426. Second, in applying certain legal rules to equitable estates : Cow- per V. Cowper, per Sir J. Jckyll, M. R. § 427. Operates within very narrow limits. § 425. Twofold Meaning — First. In Obeying the Law.a This maxim in its Latin form, Z^quitas sequitur legem, was frequently quoted by the earlier chancellors before the extent of the equitable jurisdiction had been fully de- termined, and an importance, even a supreme and con- trolling efficacy, has been attributed to it by some writers which it does not and never did possess. So far as it can truly be called a general principle, guiding and regulating the action of equity .courts, its meaning and effect are now settled within well-defined and narrow limits. As a prac- tical rule, and not a mere verbal theory, it is wholly re- strictive in its operation, and its only object is to keep the jurisdiction of equity from overstepping the boundaries which have been established by the prior course of adjudi- cation. With this respect the maxim has a double import and operation: First. Equity follows the law, in the sense of obeying it, conforming to its general rules and policy, whether contained in the common or in the statute law. This meaning of the principle was very clearly stated by Lord Chancellor Talbot in the following passage: ^' There are instances, indeed, in which a court of equity gives a remedy, where the law gives none; but where a particular remedy is given by the law, and that remedy bounded and circumscribed by particular rules, it would be very improper § 425, (a) Sections 425-427 are cited in Eowloy v. Shepardson, 90 Vt. 25, 96 Atl. 374. § 426 EQUITY JURISPRUDENCB. 794 for this court to take it up where the law leaves it, and to •extend it further than the law allows."!^ It should be observed, however, that equity had not, in developing its jurisdiction, invaded the particular 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. § 425, 1 Heard v. Stamford, Cas. t. Talb. 173. In this ease the chan- cellor was asked to disregard a well-settled doctrine of the common law. By the then existing law, if a man married he at once became personally liable for all his wife's antenuptial debts; but this liability ceased upon the wife's death. If the creditor had not recovered judgment at the time the wife died he was remediless, no matter how large a fortune the wife may have brought to and left with her husband. This rule was grossly vmjust in both of its branches. Defendant's wife was indebted at the time of the marriage, and brought her husband a large fortune, but died soon after. One of her creditors brought this suit against the husband, urging that he should be held liable in equity, under the circumstances. The chancellor held that he was not liable, and refused to decree against a settled rule of the law. § 426. Secondly. In Applying Legal Rules to Equitable Estates. — Equity follows the law in the sense of applying § 425, (b) This paragraph is cited Eambo v. First State Bank of Ar- in support of the rule that equity gentine, 88 Kan. 257, 128 Pac. 182 does not try title to land or per- (where legislature has prescribed sonal property where the parties rules of law which govern rights of claim by distinct titles, in Jenkins parties, equity, equally with courts V. Jenkins, 83 S. C. 537, 65 S. E. 736. of law, is bound, and cannot disre- See Henderson v. Hall, 134 Ala. 455, gard such provisions); Scott v. 32 South, 840; Davis v. Williams, Waynesburg Brewing Co., 256 Pa. 130 Ala. 530, 89 Am. St. Rep. 55, 54 158, 100 Atl. 591 (the existence, va- L. R. A. 749, 30 South. 488; Game- lidity and extent of a judgment lien well Fire Alarm Tel, Co. v. City of are matters purely legal, dependent Laporte (C. C. A.), 102 Fed. 417. upon statute). When a contract is See, also, Adams v. Murphy, 165 void at law for want of power to Fed. 304, 91 C. C. A. 272 (plaintiff make it, a court of equity has no attempted to evade the rule against jurisdiction to enforce such contract, suing an Indian tribe by suing its or in the absence of fraud, accident, chief; held, that if the law out of or mistake to so modify it as to considerations of public policy de- make it legal, and then enforce it: nies a remedy, equity will follow the Hedges v. Dixon County, 150 U. S. law and refuse to grant one) ; 182, 14 Sup. Ct. 71. 795 EQUITY FOLLOWS THE LAW. § 426 to equitable estates and interests some of the same rules by which at common law legal estates and interests of a similar kind are governed. Equity, having by the exer- cise of its creative power called into existence the system of equitable estates, determined that these estates should partake, to a certain extent, of the quality of the correspond- ing legal estates. Thus a use in fee was held to descend according to the same rules as a legal estate in fee, and the husband was entitled to curtesy in such a use. It should be carefully observed, however, that courts of equity carried out the principle in this its second sense only to a partial and quite limited extent. A careful examination will show, I think, that the only important rules of law adopted by the early chancellors to regulate equitable estates were tliose concerning descent and inheritance.^ The feudal incidents of legal estates were held not to apply to uses; equitable estates in fee could be conveyed without livery of seisin, and could be devised by will, and were not subject to dower. It is an evident error to say that equitable estates were regulated by all the rules of the law applicable to the corresponding legal estates. This second sense in which the principle is understood was admir- ably stated in a celebrated opinion of Sir Joseph Jekyll, of which the following is the important passage: ''The law is clear, and courts of equity ought to follow it in their judgments concerning titles to equitable estates ; otherwise great uncertainty and confusion would ensue. And though proceedings in equity are said to be secundum discretionem boni viri, yet when it is asked, Vir bonus est quisf the an- swer is. Qui consulta patrum, qui leges juraque servat. And it is said in Rooke's Case^ that discretion is a science not § 426, 1 The early chancellors, in dealing with uses and other equitable estates, plainly shrank from interfering with the legal rules of descent and inheritance, which were so dear to the landed proprietors. Yet they held that equitable estates in fee were not subject to dower, although they were to curtesy; perhaps this distinction was not displeasing to the body of land-owners. § 426, 2 Rooke's Case, 5 Coke, 99b. § 427 EQUITY JURISPRUDENCE. 796 to act arUtrarily according to men's wills and private affec- tions, so the discretion which is executed here is to be gov- erned 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 the remedy ; in others again, it relieves against the abuse, or allays the rigor of it; but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly im- puted to this court. That is a discretionary power, which neither this nor any other court, not even the highest, act- ing in a judicial capacity, is by the constitution intrusted with. "3 Some of the sentences of this often quoted pas- sage must, I think, be accepted only with considerable modi- fication. Taken literally, they certainly contradict a large portion of the established equitable jurisdiction, and of the settled doctrines of the equity jurisprudence. The same twofold import of the principle has also been expressed in the following formulas: 1. Equity is governed by the rules of the law as to legal estates, interests, and rights. 2. Equity is regulated by the analogy of such legal inter- ests and rights, and the rules of the law affecting the same, in regard to equitable estates, interests, and rights, where any such analogy clearly subsists A * § 427. Operates Within Very Narrow Limits. — The maxim is, in truth, operative only within a very narrow range; to raise it to the position of a general principle would be a palpable error. Throughout the great mass of its jurisprudence, equity, instead of following the law, either § 426, 3 Cowper v. Cowper, 2 P. "Wms. 720, 752. In this case 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. § 426, 4 Snell's Equity, 14. §426, (a) This paragraph is cited 86 Atl. 932 (equity follows the law in Birch v. Baker, 81 N. J. Eq. 264, in construction of statutes). 797 EQUITY ACTS IN PERSONAM, AND NOT IN REM. § 428 ignores or openly disregards and opposes the law. As was shown in that portion of the Introductory Chapter whicli deals with the nature of equity, one large division of the equity jurisprudence lies completely outside of the law; it is additional to the law ; and while it leaves the law concern- ing the same subject-matter in full force and efficacy, its doctrines and rules are constructed without any reference to the corresponding doctrines and rules of the law. An- other division of equity jurisprudence is directly opposed to the law which applies to the same subject-matter; its doctrines and rules are so contrary to those of the law, that when they are put into operation the analogous legal doc- trines and rules are displaced and nullified. As these con- clusions cannot be questioned, it is plain that the maxim, Equity follows the law, is very partial and limited in its application, and cannot, like all the other maxims discussed in this chapter, be regarded as a general principle. SECTION xn. EQUITY ACTS IN PERSONAM, AND NOT IN REM. ANALYSIS. S 428. Origin and original meaning of this principle. § 429. In what sense equitable remedies do operate in rem. §§430,431. The principle that courts of equity act upon the conscience of a party explained. § 431. The same, per Lord Westbury. § 428. Origin and Original Meaning.* — I have already had occasion, while describing the nature of equity and of equitable remedies in a former chapter, to explain the origin of this maxim, and the leading conception which it origi- nally embodied. In the infancy of the court of chancery, §428, (a) Sections 428 et seq. are 706. Section 428 is cited in Orfield cited in Warfield-Pratt-Howell Co. v. v. Harney, 33 N. D. 568, 157 N. W. Williamson, 233 III. 487, 84 N. E. 124. § 428 EQUITY JURISPRUDENCE. 798 while the chancellors were developing their system in the face of a strong opposition, in order to avoid a direct col- lision with the law and with the judgments of law courts, they adopted the principle that their own remedies and de- cree should operate in personam upon defendants, and not in rem. The meaning of this simply is, that a decree of a court of equity while declaring the equitable estate, interest, or right of the plaintiff to exist, did not operate by its own intrinsic force to vest the plaintiff with the legal estate, interest, or right to which he was pronounced entitled; it was not itself a legal title, nor could it either directly or indirectly transfer the title from the defendant to the plain- titf. A decree of chancery spoke in terms of personal command to the defendant, but its directions could only be carried into effect by his personal act. It declared, for example, that the plaintiff was equitable owner of certain land, the legal title of which was held by the defendant, and ordered the defendant to execute a conveyance of the estate; his own voluntary act was necessary to carry the decree into execution; if he refused to convey, the court could endeavor to compel his obedience by fine and impris- onment. The decree never stood as a title in the place of an actual conveyance by the defendant; nor was it ever carried into effect by any officer acting in the defendant's name. It has also been shown that this original character of equitable remedies and decrees has been greatly modified by statute in the United States. Under this legislation 'decrees are made to operate of themselves, wherever neces- sary, as a sufficient title ; they either transfer the estate by their own force, without any actual conveyance from the defendant, or they are carried into execution by officers pur- porting to act in the defendant's name and stead. Side by side with this most important statutory change, the original personal character of the remedies is still left wherever the alteration would be impossible, as, for example, wherever a decree simply restrains the defendant from doing any specified act, and wherever the jurisdiction is exercised with 799 EQUITY ACTS IN PERSONAM, AND NOT IN REM. §§ 429, 430 reference to a subject-matter situated beyond the territorial cognizance of the court^ ^ § 429. In What Sense Equitable Remedies do Operate in Rem. — It has also been shown, when explaining the nature of equitable remedies, that they generally are, in another special sense, essentially in rem, and not in personam. Equitable remedies very seldom consist of personal judg- ments, general recoveries payable out of the defendant's assets. The fundamental theory of the remedial action of equity is, that it deals with specific and identified land or chattels, or specific funds, whether consisting of securities and other things in action or of money, and it seeks to de- termine, declare, and maintain the estates, interests, and rights of the litigant parties in and to such identified lands, chattels, or funds.^ § 430. Operation of Equity upon the Conscience of a Party. — There is still a third aspect of the remedial action of equity which should be accurately understood, since it lies at the foundation of much of the dealing of the court of chancery with the legal estates and rights, and especially those conferred by the positive provisions of statutes. I mean the most important principle, that equity acts upon the conscience of a party, imposing upon him a personal obligation of treating his property in a manner very dif- ferent from that which accompanies and is permitted by his mere legal title. Whenever a legal estate is, by virtue of some positive rule of either the common or statute law, § 428, 1 See Penn v. Lord Baltimore, 1 Ves. Sr. 444, 2 Lead. Cas. Eq., 4th Am. ed., 1806, and notes. § 428, (b) Subject-matter beyond with reference to its etfect upon the jurisdiction: Schmaltz v. York Mfg. different kinds of equitable reme- Co., 204 Pa. St. 1, 93 Am. St. Rep. dies, see post, §§ 1317, 1318, and 782, 53 Atl. 522 (citing and discuss- Pom. Eq. Rem. ing many authorities on this point). §429, (a) Cited in Sharon v. For a more detailed exposition of Tucker, 144 U. S. 542, 12 Sup. Ct. the doctrine that equity acts in per- 720. sonam^ and not in rem, especially § 430 EQUITY JURISPKUDENCB. 800 vested in A, but this legal estate in A is of itself a violation of some settled equitable doctrines and rules, so that B is equitably entitled to the property or to some interest in or claim upon it, equity grants its relief, and secures to B his right, not by denying, or disregarding, or annulling, or set- ting aside A's legal estate, but by admitting its existence, by recognizing it as wholly vested in A, and then by work- ing upon A's conscience, and imposing upon him the duty of holding and using his legal title for B's benefit, so that, in the ordinary language of the courts, he is treated as a trus- tee for B. One or two familiar examples will illustrate the working of this fundamental principle. A testator has given certain lands to A by a will properly executed ; but A procured the devise by wrongful representations made to the testator, and the lands should, by the doctrines of equity, belong to B. The statute of wills, however, is peremptory in its prescribed mode of executing a will ; there can be no will without conforming to the statutory requirements. Equity does not attempt to overrule the statute; it admits the validity of the will, and the legal title vested in A, but on account of A's wrongful conduct in procuring the devise to himself, it says that he cannot conscientiously hold and enjoy that legal title for his own benefit, and imposes upon his conscience the obligation to hold the land for B 's benefit, as the equitable owner thereof ; and then arises the further obligation upon his conscience to perfect and complete B's equitable ownership by a conveyance.^ In exactly the same manner the equity of a party is worked out in all those cases where the peremptory provisions of the statute of frauds stand in the way of any legal right or claim, as in the specific enforcement of a verbal contract for the sale of land, which has been part performed by the plaintiff. Another illustration of the principle may be seen in the doc- trine established by courts of equity concerning the effect of the registry or recording acts. These statutes declare, in §430, (a) See post, §§919, 1054. N. C. 198, 18 Ann. Cas. 802, 65 S. E. The first half of this paragraph is 902, concurring opinion. quoted in Sumner v. Staton, 151 801 EQUITY ACTS IN PEESONAM, AND NOT IN REM. § 431 general terms, and without any exception, that a subsequent grantee or mortgagee who first puts his deed or mortgage uj^on record shall thereby acquire the precedence over a prior unrecorded conveyance. Courts of equity have added the rule that if the subsequent party, who thus obtains the legal benefit of a record, has notice, his recorded instrument shall still be subordinate to the prior unrecorded convey- ance of which he was charged with notice. In giving tliis effect to a notice, the courts of equity do not assume to nullify the provisions of the recording act ; they admit that a subsequent grantee has, by means of his record, obtained the complete legal title, which cannot be directly set aside nor disturbed ; but they say that the notice of the prior con- veyance makes it unconscientious for him to hold and enjoy that legal title for his own benefit, and they impose upon his conscience the obligation of holding it for the benefit of the prior unrecorded grantee.^ § 431. This principle which I have attempted to explain and illustrate in the preceding paragraph, and which under- lies a very large part of the remedial action of equity, was stated with his usual clearness and accuracy by Lord West- bury in the following passage: "The court of equity has^ from a very early period, decided that even an act of Par- liament shall not be used as an instrument of fraud; and if in the machinery of perpetrating a fraud an act of Par- liament intervenes, the court of equity, it is true, does not set aside the act of Parliament, but it fastens on the indi- vidual who gets a title under that act, and imposes upon him a personal obligation, because he applies the act as an in- strument for accomplishing a fraud. In this way the court of equity has dealt with the statute of wills and the statute of frauds." 1 ^ Although Lord Westbury here speaks only § 431, 1 McCortniek v. Grogan, L. R. 4 H. L. 82, 97. This case was concerning a devise which had been obtained by fraud. §430, (b) See §§659-665. Sumner v. Staton, 151 N. C. inS. IS §431, (a) The text is quoted in Ann. Cas. 802, 65 S. E. 902, concur- 1—51 § 431 EQUITY JURISPRUDENCE. 802 of a case where the equitable rights of one person arise from the fraud of another who has thereby obtained the legal estate, yet the principle applies, whatever be the grounds and occasion of the equitable interests and claims which are asserted in opposition to the one having the legal title.2 b § 431, 2 In the very recent case of Greaves v. Tofield, L. R. 14 Ch. Div. 563, 577, which arose upon the effect of a recording act, and of actual notice to a subsequent encumbrancer who obtained the first registry, Bram- well, L. J., stated the principle as follows: "I understand the authori- ties to have established this beyond dispute, that if a man having an estate agi'ees to sell it, or undertakes to grant an interest in it, or a charge upon it, for a valuable consideration, and afterwards, disregarding the bargain he has made, conveys to a third person, 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 giv- ing the person who entered into the first contract that right in it for which he had stipulated, 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 ring opinion. This paragraph i3 attacked on the ground that the de- cited in Wirtz v. Guthrie, 81 N. J. cree was obtained by fraud. "The Eq. 271, 87 Atl. 134 (equity will de- fact that a statute does not ex- prive a defendant of the protection pressly provide that fraud shall in- of the statute of frauds where such validate acts authorized to be done protection would allow him to per- under it does not deprive the courts petrate a fraud). of the general power to protect the § 431, (b) The text is quoted in rights of parties. The principles Sumner v. Staton, 151 N. C. 198, 18 which are recognized and enforced Ann. Cas. 802, 65 S. E. 902, concur- in courts of equity underlie our en- ring opinion. See, also, in support tire system of jurisprudence. They of the general principle of the text are no more excluded by the failure the interesting ease, Baart v. Mar- to insert an exception in the statute tin, 99 Minn. 197, 116 Am. St. Rep. than by the failure of parties to in- 394, 108 N. W. 945, holding that a sert a similar exception in a private decree of registration under the contract. . . . When necessary to Minnesota Torrens law, which, un- prevent a fraud, a court of equity der the terms of the statute, vested will read an exception into a statute in the registered owner an abso- which is expressed in general terms" lutely indefeasible title, could be (Elliott, J.). 803 EQUITY ACTS IN PEKSONAM, AND NOT IN REM. § 431 establish this, that that principle is not affected by those acts of Parlia- ment which require registration 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 con- sciences were not affected, 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." This is a clear statement of the principle, and one would have supposed that the very statement would have carried convic- tion of its essential justice. But the observations added by Mr. Justice Bramwell, in which he expresses a strong dissent from this principle, and condemns other familiar principles of equity which have been so long and so firmly established that they may be regarded as the foimdations of its jurisprudence, show very clearly the danger to be apprehended from associating purely law judges in the administration of equity. His criticisms are trivial, and his reasoning is weak, but even such criticism and reasoning coming from the bench may, in time, undermine the whole system of equity. The danger was pointed out at the time when the judicature act was passed in England; it has been realized in some of the states of our own country, where equity and law have been combined, in which, beyond a doubt, equity, as a system, is being supplanted by the law as administered from the bench.® § 431, (c) The author's obserra- lish case, In re Monolithic Building tions apply with equal force to much Co., [1915] 1 Ch. 643, of the reasoning in the similar Eng- EQUITY JURISPKUDENCE. 804 CHAPTER 11. CERTAIN DISTINCTIVE DOCTRINES OF EQUITY JURISPRUDENCE. SECTION I. CONCERNING PENALTIES AND FORFEITURES. § 432. Questions stated. §§433-447. Penalties; equitable relief against. § 433. General ground and mode of interference, § 434. Form of relief ; when given at law, §§ 435, 436. What are penalties. § 436. To secure the payment of money alone. §§ 437-445. Stipulations not penalties. § 437. .Stipulations in the alternative. § 438. Ditto, for the reduction of an existing debt upon prompt payment. § 439. Ditto, for accelerating payment of an existing debt. §§ 440-445. Ditto, for "liquidated damages." § 440. "Liquidated damages" described in general. §§ 441-445. Rules determining between liquidated damages and penalties. § 441. 1. Payment of a smaller sum secured by a larger. § 442. 2. Agreement for the performance or non-performance of a single act. § 443. 3. Agreement for the performance or non-performance of several acts of different degrees of importance. § 444. 4. The party liable in the same amount for a partial and for a complete default. § 445. 5. Stipulation to pay a fixed sum on default in one of several acts. § 446. Specific performance of a contract enforced, although a penalty is attached; party cannot elect to pay the penalty and not per- form. § 447. Otherwise as to stipulation for liquidated damages. §§ 448-460. Of forfeitures. §§ 449-458. "When equity will relieve against forfeitures. § 450. General ground and extent of such relief. § 451, Relief when forfeiture is occasioned by accident, fraud, mistake, surprise, or ignorance. § 452. No relief when forfeiture is occasioned by negligence, or is willful. 805 CONCEKNING PENALTIES AND FORFEITURES. §§432,433 §§ 453, 454. Belief against forfeitures arising from covenants in leases, § 455. Ditto, from contracts for the sale of lands. § 456. Ditto, from other special contracts. § 457. Ditto, of shares of stock for non-payment of calls. § 458. Ditto, when created by statute. §§459,460. Equity will not enforce a forfeiture. § 432. Questions Stated.-'^ — In this chapter I purpose to discuss certain peculiarly equitable doctrines which, to a greater or less extent, run through and atfect the entire system of equity jurisiH'udence. As neither of them is con- fined in its operation to any single equitable estate or in- terest, nor to any one equitable remedy, it seems expedient, in order to avoid unnecessary repetitions, that they should be treated of in a preliminary division by themselves. Each of them may be, and is, applied to several different equitable estates or interests, and may be carried into effect by means of several different equitable remedies ; and they may all, therefore, be considered as general, although not perhaps universal. Furthermore, all these doctrines are distinctively equitable in their nature ; they are peculiar to the equity system of jurisj)rudence, and, so far as they go, serve to distinguish it from the law. The particular doctrines which will be treated of in the sections of this chapter are those concerning penalties and forfeitures, elec- tion, satisfaction, priorities, notice, performance, and the like. In the present section I shall examine the doctrine concerning penalties and forfeitures, and shall treat, in order, first, of penalties, and second, of forfeitures. § 433. Penalties — Ground and Mode of Interference. a — The true ground of equitable interposition and relief in cases of penalties and forfeitures which might be enforced at law §432, (a) This chapter, §§432- Am, St. Rep. 657, 26 N. E. 316; Gay 460, is cited in Cook-Keynolds Co. v. Mfg. Co. v. Camp, 65 Fed. 794, 13 , Chipman, 47 Mont. 289, 133 Pac. C.'C. A. 137, 25 U. S. App. 134; Lake 694; Eoss Tin Mine v. Cherokee Tin View M. & M. Co. v. Hannon, 93 Mining Co., 103 S. C. 243, 88 S. E. 8. Ala. 87, 9 South. 539; also in Eckert §433, (a) Cited with approval in v. Searcy (Miss.), 74 South. 818. Noyes v. Anderson, 124 N. Y. 175, 21 § 433 EQUITY JURISPRUDENCE. 806 was stated by Lord Macclesfield, in the leading case of Peachy v. Duke of Somerset, to be ''from the original intent of the case, and the court can give a party, hy ivay of recom- pense, all that he expected or desired." He confined the interference of equity, however, to those cases in which the penalty is intended only to secure the payment of money.^ The doctrine was soon extended, so that it embraces cases where the penalty is used not merely to secure a money payment, but as a security for the performance of some collateral act.^ In its most general scope and operation the doctrine may be stated as follows: Wherever a penalty or a forfeiture is used merely to secure the payment of a debt, or the performance of some act, or the enjoyment of some right or benefit, equity, considering the payment, or per- formance, or enjoyment to be the real thing intended by the agreement, and the penalty or forfeiture to be only an accessory, will relieve against such penalty or forfeiture by awarding compensation instead thereof, proportionate to the damages actually resulting from the non-payment, or non-performance, or non-enjoyment, according to the stipulations of the agreement.^ The test which determines § 433, 1 Peachy v. Duke of Somerset, 1 Strange, 447. § 433, 2 Soloman v. Walter, 1 Brown Ch. 418, per Lord Thurlow. The doctrine of equitable interference to relieve against penalties and for- feitures has been described and discussed by some writers as a branch of the jurisdiction in cases of accident. In very ancient times, when the powers of the court of chancery were restricted by the language of the royal decree to certain specified heads, as good faith, conscience, fraud, mistake, and accident, and it was necessary that every new exercise of power should be referred to some one of these heads, it may have been claimed that the jurisdiction over penalties belonged to the head of acci- dent. But it is evident that this is not the true source of the jurisdic- tion; there can be no pretense of any accident in the execution of agree- ments containing penalties. The doctrine has a deeper foundation in universal principles of right, as shown in the preceding chapter, section II. §433, (b) The text is quoted in 385, 132 S. W. 255; and in Ross Tin Williams v. Pratt, 10 Cal. App. 625, Mine v. Cherokee Tin Mining Co., 103 Pac. 151; Swofford Bros. Dry 103 S. C. 243, 88 S." E. 8. Goods Co. V. Randolph, 151 Mo. App. 807 CONCERNING PENALTIES AND FORFEITURES. § 433 whether equity will or will not interfere in such cases is the fact whether compensation can or cannot be adequately made for a breach of the obligation which is thus secured. If the penalty is to secure the mere payment of money, compensation can always be made, and a court of equity will relieve the debtor party upon his paying the principal and interest.^ If it be to secure the performance of some col- lateral act, and compensation for a non-performance can be made, a court of equity will ascertain the amount of dam- ages, and relieve upon their payment.^ It is a familiar doctrine, therefore, that if the penalty is inserted to secure the payment of a pecuniary obligation, relief against it will be granted to the debtor upon his payment of the real amount due and secured, together with interest and costs, if any have accrued.'* Where the penalty is to secure the performance of some collateral act or undertaking, equity will interpose, if adequate compensation can be made to the creditor party. The original practice in such cases was for the court of equity to retain the bill, direct an issue to ascer- tain the amount of damages, and to grant relief upon pay- ment of the damages thus assessed by the jury.^ By the §433, 3 2 Lead. Cas. Eq., 4th Am. ed., 2014, 2023, 2044, and notes; Reynolds v. Pitt, 19 Ves. 140, and cases cited in the two following notes; Bowser v. Colby, 1 Hare, 128; Gregory v. Wilson, 9 Hare, 683; Brace- bridge V. Buckley, 2 Price, 200; Nokes v. Gibbon, 3 Drew. 681; Bargent V. Thomson, 4 Giff. 473; Hagar v. Buck, 44 Vt. 285, 8 Am. Rep. 368; Hancock v. Carlton, 6 Gray, 39; Thompson v. Whipple, 5 R. I. 144; Walker v. Wheeler, 2 Conn. 299; Michigan St. Bank v. Hammond, 1 Doug. (Mich.) 527; Giles v. Austin, 38 N. Y. Sup. Ct. 215, 62 N. Y. 486. § 433, 4 Elliott V. Turner, 13 Sim. 477 ; In re Dagenham Dock Co., L. R. 8 Ch. 1022; Skinner v. Dayton, 2 Johns. Ch. 535, 17 Johns. 357; Deforest v. Bates, 1 Edw. Ch. 394; Giles v. Austin, 38 N. Y. Sup. Ct. 215; Bowen v. Bowen, 20 Conn. 126; Carpenter v. Westcott, 4 R. I. 225; Walling V. Aiken, 1 McMuU. Eq. 1; Moore v. Platte, 8 Mo. 467; Bright V. Rowland, 3 How. (Miss.) 398. § 433, 5 Hardy v. Martin, 1 Brown Ch. 419, note ; 1 Cox, 26 ; Benson V. Gibson, 3 Atk. 395; Errington v. Arnesly, 2 Brown Ch. 341, 343; §433, (c) The text is cited to this eflfect in Bell v. Scranton Coal Mines Co., 59 Wash. 659, 110 Pac. 628. § 434 EQUITY JURISPRUDENCE. 808 C more modern practice the court of equity would doubtless / determine the amount of damages itself, without the inter- vention of a jury.^ § 434. Form of Relief.^ — While the two jurisdictions at law and in equity were kept distinct, although perhaps given to the same tribunal, the form of the remedy in which relief was obtained against a penalty was that of a suit brought by the debtor party to procure the agreement to be surrendered up and canceled, or the forfeiture perhaps to be set aside, upon payment of the debt or damages ; and this decree would often be accompanied by an injunction re- straining an action at law upon the agreement brought or threatened by the creditor party. Under the modern legis- lation, and especially under the reformed procedure, the rights of the debtor party would be protected, and the relief obtained, without any separate suit in equity, but by an [ equitable defense set up in the action at law by which the creditor sought to enforce the literal terms of the agree- ment. It has, however, become unnecessary, in many in- stances, to invoke the purely equitable jurisdiction in order to avoid penalties. The equitable doctrine, as above de- scribed, has to a considerable extent been incorporated into the law, partly as the result of statute, and partly from the gradual development of equitable principles in the com- mon law. Whatever be the true explanation, the rule is now very general, even if not universal, that a recovery in Skinner v. Dayton, 2 Johns. Ch. 534, 535; Bowen v. Bowen, 20 Conn. 127; Gould V. Bugbee, C Gray, 371, 375; Hagar v. Buck, 44 Vt. 285, 8 Am. Rep. 368; Pittsburgh R. R. v. Mt. Pleasant R. R., 76 Pa. St. 481, 490 ; Hackett v. Alcock, 1 Call, 4C3. § 433, (d) The text is quoted in retain jurisdiction to award dam- Baltimore & N. Y. R. R. Co. V. Bou- ages, unless there is some equitable vier, 70 N. J. E'q. 158, 62 Atl. 868, relief granted to which damages by Pitney, V. C; and in Ross Tin would be incidental). Mine v. Cherokee Tin Mining Co., § 434, (a) Cited in Lake View M. 103 S. C. 243, 88 S. E. 8 (where & M. Co. v. Hannon, 93 Ala. 97, 9 equity refuses to declare a forfeit- South. 539. ure or enforce a penalty, it will not 809 CONCERNING PENALTIES AND FORFEITURES. § § 435, 486 actions at law upon contracts which contain an express stipulation for a penalty is limited to the actual debt due, or the actual damages sustained. ^ The law courts have not, however, gone to the same length in adopting the equitable '. principle in cases of forfeiture. § 435. Penalties Defined. — Such being the general doc- trine, the important and practical inquiry in the vast ma- jority of cases is. What are the distinctive features of a penalty? or. What kind of stipulation or provision in an agreement amounts to a penalty, so that it may come within the scope of the equitable doctrine? When the stipulation is intended to secure merely the payment of money, the test is easy and plain, and well established. When it is designed to secure the performance of some collateral act, the question is much more difficult to answer, and involves a statement of the differences between penalties and pro- visions for the payment of ''liquidated damages." The question what is and what is not a penalty I now proceed to examine. § 436. To Secure the Payment of Money Alone. — Where the act secured to be done is merely the payment of money, the test is simple and well established. It may be regarded as a rule of universal application, that if a party for any reason is liable to pay, or binds himself to pay, a certain sum of money, and adds a stipulation to the effect that in case such sum shall not be paid at the time agreed upon he shall then be liable to pay, or become bound to pay, a larger sum of m,oney, the stipulation to pay the larger sum is in- variably and necessarily a penalty. Of course, in this prop- osition it is understood that the "larger sum" is not simply the lawful interest accruing upon the principal actually § 434, 1 In most of the states the judgment at law is limited to the amount of debt or damages actually due or sustained; in a few, however, the judgment is formally entered for the whole sum mentioned in the penalty, but with a provision that it is to be satisfied by a payment of the actual debt or damages. § 436 EQUITY JUmSPEUDENCE. 810 due.^ The same doctrine may be stated in more compre- hensive terms, in the language of one of the most able of modern English chancellors: ''The law is perfectly clear that where there is a debt actually due,i and in respect of that debt a security is given, be it by way of mortgage, or be it by way of stipulation, that in case of its not being paid at the time appointed, a larger sum shall become pay- able and be paid, — in either of these cases equity regards the security that has been given as a mere pledge for the debt, and it will not allow either a forfeiture of the property pledged or any augmentation of the debt as a penal pro- vision, on the ground that equity regards the contemplated forfeiture which might take place at law with reference to the estates as in the nature of a penal provision against which equity will relieve when the object in view, viz., the securing of the debt, is attained, and regarding also the stipulation for the payment of a larger sum of money if the sum be not paid at the time it is due, as a penalty and a forfeiture against which equity will relieve. "^ The cri- terion here given, for all cases where the mere payment of a pecuniary obligation is intended to be secured, applies, it will be observed, alike to a penalty and to a forfeiture. If the additional stipulation involves a liability for a larger sum of money only, it is a penalty; if it involves the loss of lands, chattels, or securities pledged, it is a forfeiture.'' The same test, in substance, determines the nature of the- provision by which the performance of some collateral act is secured. If the act thus secured be single, and the com- pensatory damages justly resulting from its non-perform- ance can be ascertained with reasonable certainty, and the § 436, 1 It should be observed by the student that the word "due" is used here in its legal meaning, of something agreed to he paid, and not in its popular sense, of something already payable. § 436, 2 Thompson v. Hudson, L. R. 4 H. L. Cas. 1, 15, per Hatherley, L. C. § 436, (a) The text is quoted in § 436, (b) The text is cited to this Wrenn v. University Land Co., 65 effect in Bell v. Scranton Coal Mines Or. 432, 133 Pac. 627. Co., 59 Wash. 659, 110 Pac. 628. 811 CONCERNING PENALTIES AND FORFEITURES. § 437 stipulation binds the debtor party to pay a fixed sum larger than such amount of damages, then the stipulation is a penalty.^ § 437. Stipulations not Penalties — Alternative Stipula- tions. — Such being the general test by which to determine the nature of a penalty, there are certain kinds of stipula- tions not unfrequently inserted in agreements which have been judicially interpreted and held not to be penalties, and therefore not subject to be relieved against by courts of equity. The nature and effect of these stipulations I shall briefly explain. The first instance is that of a contract by the terms of which the contracting party so binds himself that he is entitled to perform either one of two alternative stipulations, at his option ; and if he elects to perform one of these alternatives, he promises to pay a certain sum of money, but if he elects to perform the other alternative, then he binds himself to pay a larger sum of money. To state the substance of the agreement in briefer terms, the contracting party may do either of two things, but is to pay higher for one alternative than for the other. In such a case equity regards the stipulation for a larger payment, not as a penalty, but as liquidated damages agreed upon by the parties. It will not relieve the contracting party from the payment of the larger sum, upon his performance of the latter alternative to which such payment is annexed; nor, on the other hand, will it deprive him of his election by com- pelling him to abstain from performing whichever alter- native he may choose to adopt. ^ ^ §436, 3 See post, §§ 440-445, where this subject is more fully ex- amined, under the head of ''liquidated damages." §437, 1 French v. Macale, 2 Dru. & War. 274; Parfitt v. Chambre, L. R. 15 Eq. 36 ; Herbert v. Salisbury, etc., R'y, L. R. 2 Eq. 221 ; Hardy § 437, (a) This paragraph is Mass. 236, 10 L. B. A. 768, 26 N. E. quoted in full in Cavanaugh v. Con- 690, the defendant covenanted never way, 36 E. I. 571, 90 Atl. 1080. to practice his profession in a cer- Thu3, in Smith v. Berg«ngren, 153 § 438 EQUITY JURISPRUDENCE. 812 § 438. For the Reduction of an Existing Debt upon Prompt Payment. — The second instance is that of an agree- ment in substance for the reduction of an existing debt, on condition of prompt payment by the debtor. A stipulation reserving to a creditor the right to have full payment of the money due on an existing contract, in case there should be a failure to pay a smaller sum on a specified day, is not a penalty. Wlierever, therefore, a certain sum of money is V. Martin, 1 Cox, 27. The leading case in which the doctrine of the text was sustained is French v. Macale, 2 Dru. & War. 274. Lord St. Leon- ards states the law therein as follows: "If a man covenant to abstain from doing a certain act, and agree that if he do it he will pay a sum of money, it would seem that he will be compelled to abstain from doing that act; and just as in the converse case, he cannot elect to break his engagement by paying for his violation of the contract. . . . The ques- tion for the court to ascertain is, whether the party is restricted by cove- nant from doing the particular act, although if he do it, a payment is reserved; or whether, according to the true construction of the contract, its meaning is, that the one party shall have a right to do the act, on payment of what is agreed upon as an equivalent. If a man let meadow- land at two guineas an acre, and the contract is, that if the tenant choose to employ it in tillage he may do so, paying an additional rent of three guineas an acre, no doubt this is a perfectly good and unobjectionable contract; the plowing up the land is not inconsistent with the contract which provides that in case the act is done the landlord is to receive an increased rent." Parfitt v. Chambre, L. R. 15 Eq. 36, is also a very strong case. An award of arbitrators (which was, of course, binding as a contract) directed that defendant should pay to plaintiff for her life an annuity of twelve hundred pounds a year; and that in order to secure the annuity, defendant should within two months purchase, on behalf of plaintiff, a government annuity of twelve hundred pounds a year; and that if the annuity should not be thus purchased within the two months, then, in addition to the annuity, a further sum of one hundred pounds should become due and payable by defendant to plaintiff on the last day of the second month, and a like sum of one hundred pounds on the last day of each successive month, until such annuity should be purchased. tain town so long as plaintiff should to be neither liquidated damages nor be in practice there, provided, how- a penalty, but a price fixed for what ever, that he should have the right the contract permitted him to do. to do so at any time after five years See, also, Taylor v. Smith, 24 App. by paying the plaintiff $2,000, but Div. 519, 49 N. Y. Supp. 41. not otherwise. The court held this 813 CONCERNING PENALTIES AND FORFEITURES. § 438 actually due, either from a present advance or from any other cause, and the creditor enters into an agreement with his debtor to take a lesser sum in satisfaction, provided that lesser sum is secured in a specified manner and paid at a specified day, but if any of the stipulations of the agreement are not performed by the debtor according to the terms thereof, then the creditor shall be entitled to be paid and to recover the whole of the original debt, such provision for a return by the creditor to his original rights does not con- The award added : "These monthly payments are to be considered as addi- tional to the payments due in respect of the annuity, and as a penalty for delay in the purchase and securing of the same." The defendant never purchased any annuity. This suit is brought to recover six hun- dred pounds, one half-year's installment due of the annuity, and also seven hundred pounds for seven monthly payments unj^aid of the one hundred pounds additional. The counsel for the plaintiff claimed (p. 38) that the contract was one in the alternative, either to purchase and settle an annuity or to pay an annuity plus one hundred pounds a month, until purchase and settlement. The defendant's counsel claimed that the pro- vision for the one hundred pounds per month was only a penalty, and would not be enforced, and that plaintiff was only entitled to recover the six hundred pounds, with nominal damages for the delay. Bacon, V. C, held (pp. 39, 40) that the use of the word "penalty," in the con- tract, was not decisive; and after repeating the substance of the contract as above, said : "Whenever the defendant saw fit he might have relieved himself from the obligation of that payment [the one hundred pounds a month] by performing the other branch of the contract, namely, the pur- chase of a government annuity. Nothing can be clearer and plainer. 'Penalty' it is, but penalty in order to secure the performance of the other branch of the contract, with perfect power and liberty for the per- son upon whom the burden is cast to relieve himself from the penalty or additional jjayment whenever he shall think fit. That is not a penalty which courts of common law or courts of equity can allow to be relin- quished or satisfied, except upon the terms of performing that very thing which the introduction of the penalty imposes in order to effectuate it." In Hardy v. Martin, 1 Cox, 27, Lord Rosslyn, speaking of such an alter- native contract as is described in the text, said: "It was the demise of land to a lessee, to do with it as he thought pi'oper; but if he used it in one way he was to pay one rent; and if in another, another; that is a different case from an agreement not to do a thing, with a penalty for doing it." To the same general effect is Herbert v. Salisbury, etc., R'y, L. R. 2 Eq. 221, 224, 225, per Lord Romilly, M. R. § 438 EQUITY JURISPEUDENCE. 814 stitute a penalty, and equity will not interfere to prevent its enforcement.!* § 438, 1 Thompson v. Hudson, L. R. 4 H. L. 1; reversing L. R. 2 Eq. 612; L. R. 2 Ch. 255. The agreement in this case was the same as de- scribed in the text; a certain sum was due, and the creditor agreed to take a less sum in satisfaction if it was secured by mortgage in a speci- fied manner and was paid on a specified day; otherwise the original sum was to become due. The mortgage for the lesser sum was given, but was not paid. The master of rolls, Lord Romilly, held the provision a penalty, and that the creditor could only recover the smaller sum. This decision was affirmed on appeal by a divided court, Lord Chancellor Chelmsford agreeing with the view taken by the master of rolls, and Lord Justice Turner dissenting. On appeal to the house of lords, the decisions below were reversed, and the provision was declared not to be a penalty, but a contract binding in equity as well as at law. Lord Chan- cellor Hatherley, after the passage quoted in the note under the preced- ing paragraph, proceeded as follows: "It is equally clear, upon the other hand, that where there is a debt due, and an agreement is entered into at the time of that debt having become due, and not being paid, in regard to further indulgence to be conceded to the debtor, or further time to be accorded to him for the payment of the debt, or in regard to his paying it immediately, if that be a portion of the stipulations of the agreement, §438, (a) See, also, U. S. Mort- penalty. "Public policy . . . pro- gage Co. V. Sperry, 138 U. S. 313, 11 hibits the enforcement of contracts Sup. Ct. 321; Walsh v. Curtis to pay more than lawful interest foi (Minn.), 76 N. W. 52 (section 430 of the breach of a simple contract to the text is cited in this case, but the pay a debt at the time agreed, but is rule as laid down is a paraphrase of does not forbid creditors from mak- this section of the text); United ing enforceable agreements to grant Shoe Machinery Co. v. Abbott, 158 their debtor's discounts far in excess Fed. 762, 86 C. C. A. 118. In this of lawful interest for the payment case a lessee of machinery agreed to of their obligations before they are pay certain rentals at the ends of due. It wisely leaves them free to the months succeeding those in make their own contracts in this re- which they were earned, and the gard, because the subject and the lessor agreed that in every case in consideration of such agreements is which the lessee should pay the ren- the extension of credits, and not the tals earned in any month on or be- mere delay or forbearance of collec- fore the fifteenth of the succeeding tion of overdue debts. . . . Counsel month, or fifteen days before they argue that the actual debt was the became due, the lessor would grant agreed rentals less the discount, a discount of fifty per cent in cou- But the parties to the agreemept sideration of such payment. It was were competent to contract and they held, on appeal, that this was not a expressly agreed to the contrary." 815 CONCERNING PENALTIES AND FORFEITURES. § 439 § 439. For Acceleration of Payment of an Existing Debt. The third instance of wliat is not a penalty is that of a con- tract, not that the amount of a debt should be increased, but that in a specified event the time for the payment of a certain sum due shall be accelerated. It is therefore set- tled by the overwhelming weight of authority that if a certain sum is due and secured by a bond, or bond and mortgage, or other form of obligation, and is made pay- able at some future day specified, with interest thereon made payable during the interval at fixed times, annually, or semi-annually, or monthly, and a further stipulation provides that in case default should occur in the prompt payment of any such portion of interest at the time agreed upon, then the entire principal sum of the debt should at once become payable, and payment thereof could be en- forced by the creditor, such a stipulation is not in the nature of a penalty, but will be sustained in equity as well as at law. In exactly the same manner, if a certain sum or at some future time which may be named, and the creditor is willing to allow him certain advantages and deductions from that debt, as well as to extend the time of its payment, if adequate and satisfactory security is afforded him as a consideration, then it is perfectly competent to the creditor to say that if the payment is not made modo et forma according to the stipulation, the right to the original debt reverts." Lord West- bury, in the same case, said (p. 27) : "It is right and rational for a credi- tor to say to his debtor, 'Provided you pay me half of the debt or two thirds of the debt on an appointed day, I will release you from the rest, and will accept the money so paid in discharge of the whole debt; but if you do not make payment of it on that day, then the whole debt shall remain due to me, and I shall be at libert}^ to recover it'; and this is the view which a court of equity will adopt. ... If you were to put that proposition to any plain man walking the streets of London, there could be no doubt at all that he would say that it is reasonable, and accordant with common sense. But if he was told that it was requisite to go to those tribunals before you could get that plain principle and conclusion of common sense accepted as law, he would undoubtedly hold up his hands with astonishment at the state of the law." See, also, Ford v. Lord Chesterfield, 19 Beav. 428 ; Davis v. Thomas, 1 Russ. & M. 506 ; Ex parte Bennet, 2 Atk. 527; Herbert v. Salisbury, etc., R'y, L. R. 2 Eq. 221, 224, per Lord Romilly; and see cases cited under the next paragraph. § 439 EQUITY JURISPRUDENCE. 816 is due and is secured by any form of instrument, and is made payable in specified installments, with interest, at fixed successive days in the future, and a further stipula- tion provides that in case of a default in the prompt pay- ment of any such installment in whole or in part at the time prescribed therefor, then the whole principal sum of the debt should at once become payable, and payment thereof could be enforced by the creditor, such stipulation has nothing in common with a penalty, and is as valid and operative in equity as at the law.i «■ The stipulation is §439, 1 Sterne v. Beck, 1 De Gex, J. & S. 595, 11 Week. Rep. 791; Stanhope v. Manners, 2 Eden, 197; People v. Superior Court of New York, 19 Wend. 104; Noyes v. Clark, 7 Paige, 179, 32 Am. Dec. 620 Ferris v. Ferris, 28 Barb. 29; Baldwin v. Van Vorst, 10 N. J. Eq. 577 Martin v, Melville, 11 N. J. Eq. 222; Robinson v. Loomis, 51 Pa. St. 78 Sehooley v. Romain, 31 Md. 574, 579, 100 Am. Dec. 87; Ottawa Plank Road Co. V. Murray, 15 111. 337; Basse v. Gallegger, 7 Wis. 442, 76 Am. Dec. 225; Marine Bank v. International Bank, 9 Wis. 57, 68; Ber- rinkott v. Traphagen, 39 Wis. 219; Bennett v. Stevenson, 53 N. Y. 508; Malcolm v. Allen, 49 N. Y. 448; Mallory v. West Shore, etc., R. R., 35 N. Y. Sup. Ct. 175; Willis v. O'Brien, 35 N. Y. Sup. Ct. 536; Gulden v. O'Byrne, 7 Phila. 93; Mobray v. Leckie, 42 Md. 474; Wilcox v. Allen, 36 Mich. 160 ; Harper v. Ely, 56 III. 179 ; Meyer v. Graeber, 19 Kan. 165 ; Pope v. Hooper, 6 Neb. 178 ; Howell v. Western R. R., 94 U. S. 463. In Malcolm v. Allen, 49 N. Y. 448, the doctrine was carried to its utmost § 439, (a) Quoted and applied in 121 N. W. 842. In general, see Caldwell v. Kimbrough, 91 Miss. 877, Hawkinson v. Banaghan, 203 Mass. 45 South. 7. Cited with approval in 591, 89 N. E. 1054. In Whelan v. Moore v. Sargent, 112 Ind. 484, 14 N. Reilly, 61 Mo. 565, a deed of trust E. 466; Connecticut Mut. Life Ins. Co. provided that the whole amount v. Westerhoff, 58 Neb. 379, 76 Am. should become due upon default in St. Rep. 101, 78 N. W, 724; Curran payment of interest. Default was v. Houston, 201 111. 442, 66 N. E. made and the trustee advertised a 228. See, also, Magnusson v. Will- sale. The debtor tendered the iams, 111 111. 450; Hoodless v. Eeid, amount of interest together with 112 111. 105; Whitcher v. Webb, 44 costs before the sale, but the trustee Cal. 127; Mullen v. Gooding Imple- refused to receive it unless the ment & Hardware Co., 20 Idaho, 348, amount of the principal was paid, 118 Pac. 666; Kerbaugh v. Nugent, and proceeded with the sale. The 48 Ind. App. 43, 95 N. E. 336; Roche court held that under these cireum- v. Hiss, 84 N. J. Eq. 242, 93 Atl. stances the sale should be set aside. 804; Russell v. Wright, 23 S. D. 338, 817 CONCERNING PENALTIES AND FORFEITURES. § 43i> sometimes to the effect that if a default in payment con- tinues for a specified number of days, and sometimes that possible length. The mortgage provided that upon non-payment of in- terest for thirty days after it became due, the mortgagee might elect (o treat the whole principal sum as due. An installment and interest fell due and were not paid. Before the thirty days were ended in which to make his election, the mortgagee commenced a foreclosure suit based only upon the installment and interest then due and payable. The thirty days having expired while this suit was pending, and the installment and in- terest not having been paid, the mortgagee elected to treat the whole as due ; the court held that, having thus made his election, he could not l)e compelled to accept the installment and interest and waive the stipula- tion; also, that he did not estop himself from enforcing the stipulation by commencing the suit before the thirty days had expired, in order to foreclose merely for the installment and interest then becoming payalile, nor even by receiving payment of the installment of principal after the thirty days had ended. In Howell v. Western R. R., 94 U. S. 463, it was held that where a railroad company was authorized by statute to issue its bonds which should not mature for thirty years, to be secured by a mortgage of its projDerty, a provision in the mortgage, that on default in tte payment of any interest coupon the whole principal sum mentioned in the bond should become payable, was void, as being contrary to the statutory authority. But the mortgage was held otherwise valid. Not- withstanding this array of authority, a few of the earlier cases pro- nounced such a provision in a bond or mortgage to be a penalty, and therefore contrary to the well-settled doctrine of equity jurisprudence. See Mayo v. Judah, 5 Munf. 495. It has also been held in at least one ease that where a certain sum is due and payable by installments, wilh- out interest, a stipulation, that upon default in the prompt payment of any installment the whole principal shall at once become payable, is, in effect, a penalty, or rather a forfeiture of the interest which the debtor would be entitled to have discounted or rebated upon his payment of the debt before it was due and payable, and therefore such a stipulation should be relieved against by a court of equity : Tiernan v. Hinman, 16 111. 400. I will add that in Sterne v. Beck, 1 De Gex, J. & S. 595, 600, GOl, the lords justices, while laying down the rule which they approve, state, apparently with great care, that the debt is payable in installments, with interest; and this expression is repeated by them on every occasion when the terms of the agreement to which the rule applies are mentioned. It is hardly possible to avoid the inference that they regarded the pay- ment of interest with the installments as an important element of the rule which they adopt. 1—52 § 439 EQUITY JURISPEUDENCB. 818 the creditor may elect to treat tlie whole debt as payable; hut the same rule applies to all such forms. The provision for accelerating the time of payment of the whole debt in this manner may, of course, be waived by the creditor, especially when it is made to depend upon his election.^ ^ It seems also that a court of equity may relieve against the effect of such provision, where the default of the debtor is the result of accident or mistake, and a fortiori when it is procured by the fraud or other inequitable conduct of the creditor himself.^ c § 439, 2 Langridge v. Payne, 2 Johns. & H. 423. § 439, 3 In Martin v. Melville, 11 N. J. Eq. 222, it was held that equity may relieve where the default of the debtor in such a case is the result of accident or mistake; and in Wilcox v. Allen, 36 Mich. 160, it was held that the forfeiture from such a clause should not be enforced where the cause of the delay in payment was that the mortgagor in good faith, though erroneously, denied his liability. But, on the other hand, in Fer- ris V. Ferris, 28 Barb. 29, where the party, who was a married woman, relied upon the absence of her husband and her own ignorance as the reasons for the default, and as excusing it, the stipulation was neverthe- less enforced. Bennett v. Stevenson, 53 N. Y. 508, clearly intimates and concedes that fraud or improper conduct on the part of the creditor in procuring the default would operate as an excuse, and be a sufficient ground for a court of equity to interfere and restrain an enforcement of the clause. § 439, (b) In Moore v. Sargent, tage of a default in the payment of 112 Ind. 484, 14 N. E. 466, it was interest. The debtor made an at- held that where the agreement was tempt to pay, but did not make a absolute that the whole amount technical tender. It was held that should become due upon failure to the creditor could not enforce the pay one note, and nothing was said payment of the principal. In Haw- of any option, the right to insist kinson v. Banaghan, 203 Mass. 591, upon an immediate payment was not 89 N. E. 1054, the court said: lost by an acceptance of the amount "Where there is no language in the due upon one note after its matur- mortgage touching the subject other ity. Compare Franklin v. Long, 191 than the statement of the time when Ala. 310, 68 South. 149. But see the installments become payable, Huston v. Fatka, 30 Ind. App. 693, and when the only breach of condi- 66 N. E. 74. tion is a failure to pay an early in- § 439, (c) Thus, in Adams v. Euth- stallment before others have become erford, 13 Or. 78, 8 Pac. 896, the due," equity may relieve, creditor purposely absented herself See post, §§ 826, 833. in order that she might take advan- 819 CONCERNING PENALTIES AND FORFEITUEES. § 440 § 440. Liquidated Damages Described in General.^ — The fourth instance to be mentioned of a stipulation which is not a penalty within the scope and meaning of the equi- table doctrine is that for ''liquidated damages." If the stipulation is one properly for liquidated damages, and not for a penalty, equity will not interfere with its enforce- ment, but if the case was one coming within the equitable jurisdiction, it would be treated as binding, and carried into effect by a court of equity.^ In general, where the contract is for the performance or non-performance of some act other than the mere payment of money, and there is no certain measure of the injury which will be sustained from a violation of the agreement, the parties may, by an express clause inserted for that purpose, fix upon a sum in the nature of liquidated damages which shall be payable as a compensation for such violation.^ <5 The question § 440, 1 Rolfe V. Peterson, 2 Brown Pari. C, Toralins's ed., 436 ; Lowe V. Peers, 4 Burr. 2225; Astley v. Weldon, 2 Bos. & P. 346; Jones v. Green, 3 Younge & J. 298; Woodward v. Gyles, 2 Vern. 119; Sainter v. Fergu- son, 1 Maen. & G. 286; Bagley v. Peddie, 16 N. Y. 469, 69 Am. Dec. 713; Mott V. Mott, 11 Barb. 127; Dakin v. Williams, 17 Wend. 447, 22 Wend. 201; Smith v. Coe, 33 N. Y. Sup. Ct. 480; O'Donnell v. Rosen- berg, 14 Abb. Pr., N. S., 59; Shute v. Hamilton, 3 Daly, 462; Wolfe Creek, etc., Co. v. Schultz, 71 Pa. St. 180; Streeper v. Williams, 48 Pa. St. 450 ; Pierce v. Fuller, 8 Mass. 223, 5 Am. Dec. 102 ; Gushing v. Drew, 97 Mass. 445; Tiugley v. Cutler, 7 Conn. 291; Gammon v. Howe, 14 Me. 250; Peine v. Weber, 47 111. 41; Low v. Nolte, 16 111. 478; Brown v. Maulsby, 17 Ind. 10; Hamilton v. Overton, 6 Blaekf. 206, 38 Am. Dec. 136 ; Yenner v. Hammond, 36 Wis. 277. §440, (a) The text, §§440-445, is §§440-446, is cited and the rules as cited in Eikcnberry v. Thorn, 61 to liquidated damages are laid down Ind. App. 468, 112 N. E. 112 (pen- as in the paragraphs cited. In Con- alty). don v. Kemper, 47 Kan. 126, 13 L. - §440, (b) Cited to this effect in R. A. 671, 27 Pae. 829, §§440-447 Moore v. Durnam, 63 N. J. Eq. 96, are cited. This section is cited with 51 Atl. 449. approval in Illinois Cent. R. R. Co. § 440, (c) The text is quoted in v. Southern Seating & Cabinet Co., In re Ross & Son (Del. Ch.), 95 104 Tenn. 568, 78 Am. St. Rep. 933, Atl. 311. In Keeble v. Keeble, 85 50 L. R. A. 729, 58 S. W. 303; South- Ala. 552, 5 South. 149, the text, era Menhaden Co. v. How, 71 Fla. §440 EQUITY JUEIS PRUDENCE. 820 whether a sum thus stipulated to be paid is a "penalty" or is ''liquidated damages" is often difficult to determine. It depends, however, upon a construction of the whole instru- ment, upon the real intention of the parties as ascertained 128, 70 South. 1000. See, also, Eas- ier V. Beard, 39 Minn. 32, 38 N. W. 7:j3. The controlling consideration seems to be that it would be diffi- cult, if not impossible, to ascertain the damages actually sustained. Muse V. Swayne, 70 Tenn. (2 Lea) 251, 31 Am. Eep. 607; Tobler v. Aus- tin, 22 Tex. Civ. App. 99, 53 S. W. 706; Studabaker v. Wlhite, 31 Ind. 211, 99 Am. Dec. 628; Schroeder v. Cal. Yukon Trading Co., 95 Fed. 296; Peekskill, S. C. & M. K. Co. v. Village of Peekskill, 47 N. Y. Supp. 305, 21 App. Div. 94 (affirmed in 59 N. E. 1128, 165 N. Y. 628); Willson V. Mayor, etc., of Baltimore, 83 Md. 203, 55 Am. St. Eep. 339, 34 Atl. 774; Mansur & Tebbetts Impl. Co. v. Willet (Okl.), 61 Pac. 1066; Bren- nan v. Clark, 29 Neb. 385, 45 N. W. 472; Nilson v. Town of Jonesboro, 57 Ark. 168, 20 S. W. 1093; May v. Crawford, 150 Mo. 504, 51 S. W, 693; De Graff, Vrieling & Co. v. Wickham, 89 Iowa, 720, 52 N. W. 503; Mcintosh v. Johnson, 8 Utah, 359, 31 Pac. 450; Pogue v. Kaweah Power & Water Co. (Cal.), 72 Pac. 144; Haier v. MacDonald, 21 Okl. 47, 96 Pac. 654; Chicago, B. & Q. R. E. Co. V. Dockery, 195 Fed. 221, 115 C. C. A. 173; City of Summit v. Mor- ris County Traction Co., 85 N. J. L. 193, L. R. A. 1915E, 385, 88 Atl. 1048; Stratton v. Fike, 166 Ala. 203, 51 South. 874; Cox v. Smith, 93 Ark. 371, 137 Am. St. Rep. 89, 125 S. W. 437; Burley Tobacco Society v. Gil- laspy, 51 Ind. App. 583, 100 N. E. 89; Merica v. Burget, 36 Ind. App. 453, 75 N. E. 1083; St. Louis & S. F. E. Co. V. Gaba, 78 Kan. 432, 97 Pac. 435; Walker v. Bement, 50 Ind. App. 645, 94 N. E. 339; Joeckel v. .John- son (Iowa), 159 N. W. 672; Ross v. Loescher, 152 Mich. 386, 125 Am. St. Eep. 418, 116 N. W. 193; Calbeck v. Ford, 140 Mich. 48, 103 N. W. 516; Kaplan v. Gray, 215 Mass. 269, 102 N. E. 421; Sheffield-King Milling Co. V. Domestic Science Bkg. Co., 95 Ohio, 180, 115 N. E. 1014; Hull V. Angus, 60 Or. 95, 118 Pac. 284; Kellam v. Hampton, 58 Tex. Civ. App. 484, 124 S. W. 970; Sheard v. United States Fidelity & Guaranty Co., 58 Wash. 29, 107 Pac. 1024, 109 Pac. 276; Grand Union Laundry Co. V. Carney, 88 Wash. 327, 153 Pac. 5. It is immaterial whether the un- certainty lies in the nature of the subject itself, or in the particular circumstances of the case: Herberger V. H. E. Orr Co., 62 Wash. 526, 114 Pac. 178. In Ward v. H. R. B. Co., 125 N. Y. 230, 26 N. E. 256, the rule was stated as follows: "We may, at most, say that where they have stipulated for a payment in liquida- tion of damages which are in their nature uncertain, and unascertain- able with exactness, and may be de- , pendent upon extrinsic considera- tions and circumstances, and the amount is not, on the face of the contract, out of all proportion to the probable loss, it will be treated as liquidated damages." "Whether a contract is such that 'from the nature of the ease' it would be impracticable or extremely difficult to fix the actual damage sus- 821 CONCERNING PENALTIES AND FORFEITURES. §440 from all the language which they have used, from the nature of the act to be performed, or not to be performed, from the consequences which naturally result from a viola- tion of the contract, and from the circumstances generally tained by a breacli thereof is a ques- tion of fact, which must be deter- mined in each particular ease." Pa- cific Factor Co. v. Adler, 90 Cal. 110, 25 Am. St. Rep, 102, 27 Pac. 36. "Whether the sum mentioned shall be considered as a penalty or as liqui- dated damages is a question of con- struction on which the court may be aided by circumstances extraneous to the writing. The subject-matter of the contract, the intention of the parties, as well as other facts and circumstances, may be inquired into, although the words are to be taken as proved exclusively by the writ- ing." Foley V. McKeegan, 4 Iowa (4 Clarke), 1, 66 Am. Dec. 107. See, also, Wallis Iron Works v. Mon- mouth Park Ass'n, 55 N. J. L. 132, 39 Am. St. Rep. 626, 19 L. R. A. 456, 26 Atl. 140; Sanford v. First Nat. Bank, 94 Iowa, 680, 63 N. W. 459; Taylor v. Times Newspaper Co., 83 Minn. 523, 85 Am. St. Rep. 473, 86 N. W. 760; Muse v. Swayne, 70 Tenn. (2 Lea) 251, 31 Am. Rep. 607; Emery v. Boyle, 200 Pa. St. 249, 49 Atl. 779; City of New Britain v. New Britain Tel. Co., 74 Conn. 326, 50 Atl. 881; Little v. Banks, 85 N. Y. 259; Kilbourne v. Burt & Brabb Lumber Co., 23 Ky. L. Rep. 985, 55 L. R. A. 275, 64 S. W. 631; Keck V. Bieber, 148 Pa. St. 645, 33 Am. St, Rep, 846, 24 Atl, 170; De Graff, Vrieling & Co, v, Wiekham, 89 Iowa, 720, 52 N. W. 503; Hennessy V. Metzger, 152 III. 505, 43 Am, St, Rep, 267, 38 N, E, 1058; United States V. Bethlehem Steel Co., 205 U, S. 105, 51 L. Ed, 731, 27 Sup. Ct. 450; Nakagawa v. Okamoto, 164 Cal. 718, 130 Pac. 707; Florence Wagon Works V, Salmon, 8 Ga, App. 197, 68 S. E. 866; Ross v. Locscher, 152 Mich. 386, 125 Am, St, Rep. 418, 116 N. W, 193; Gougar v, Buffalo Specialty Co,, 26 Colo. App. 8, 141 Pac. 511. See, also, notes to § 442. In Florence Wagon Works v, Sal- mon, 8 Ga. App, 197, 68 S, E. 866, the court said that the question is whether the provision was inserted for the purpose of deterring a party from breaching his agreement and penalizing him if he should do so, or whether it was a sum which the parties in good faith agreed upon as representing those damages which would ensue if the contract should be broken. Thus, "in a contract to support and maintain one for the remainder of his life, fixing a sum to be paid in case of breach and denominating it a 'penal sum,' the amount cannot be construed to be liquidated dam- ages, when there is nothing in the nature of the case and the tenor of the agreement indicating that the parties themselves fairly estimated and adjusted the damages at the time of making the contract": Wilkes V, Bierne, 08 W, Va. 82, 31 L. R. A. 937, 69 S. E. 366, Where the contract does not evi- dence an intention to treat a sum as liquidated damages, it will be hold to be a penalty: Kollam v. Hampton, 58 Tex. Civ. App. 484, 124 S. W. 970. "If the sum be evidently fixed to evade a statute or to cloak oppres- sion, the court will relieve by treat- §440 EQUITY JURISPRUDENCE. 822 surrounding the transaction. It Las been repeatedly held that the words "penalty" or 'liquidated" damages, if actually used in the instrument, are not at all conclusive as to the character of the stipulation. ^ If upon the whole agreement the court can see that the sum stipulated to be paid was intended as a penalty, the designation of it by the parties as ''liquidated damages" will not prevent this construction ; if, on the other hand, the intent is plain that the sum shall be "liquidated damages," it will not be treated as a penalty because the parties have called it by that name. It is well settled, however, that if the intent is at all doubt- ful, the tendency of the courts is in favor of the interpre- tation which makes the sum a penalty.^ e The mere large- §440, 2Dimech v. Corlett, 12 Moore P. C. C. 199; Jones v. Green, 3 Younge & J. 304; Green v. Price, 13 Mees. & W. 701, 16 Mees. & W. 34G; Betts v. Burch, 4 Hurl. & N. 511, per Bramwell, B.; Cbilliner v. Chilliner, 2 Ves. 528; Coles v. Sims, 5 De Gex, M. & G. 1; Gushing v. ing it as a penalty." Kilbourne v. Burt & Brabb Lumber Co., 23 Ky. L. Kep. 985, 55 L. R. A. 275, 64 S. W. 631. In the case of Williston v. Mathews, 55 Minn. 422, 56 N. W. 1112, there was a stipulation that in case of breach the other party might go into the market and buy at the expense of the defaulting party. It was held that before a provision in the contract can be given the effect of a stipulation fix- ing a measure of damages either greater or less than the law would give, it must fairly appear from its language, construed in the light of the nature of the contract and the situation of the parties, that they intended it to have that effect. It has been held that the fact that the amount of the stipulated damages increases with time does not make the provision a penalty: Bilz V. Powell, 50 Colo. 482, 117 Pac. 344. This seems correct when the damages actually increase with time, as in Eilers Music House v. Oriental Co., 69 Wash. 618, 125 Pae. 1023. But in the absence of such a show- ing it seems doubtful. §440, (d) The text is quoted in In re Eoss & Son (Del. Ch.), 95 Atl. 311. § 440, (e) Language of the Agree- ment not Conclusive. — The text is quoted in Sherburne v. Herst, 121 Fed. 998. See Foley v. McKeegan, 4 Iowa (4 Clarke), 1, 66 Am. Dec. 107; Weedon v. American Bonding & Trust Co., 128 N. C. 69, 38 S. E. 255. The text is cited in Zenor v, Pryor, 56 Ind. App. 222, 106 N. E. 746; Elzey v. City of Winterset, 172 Iowa, 643, 154 N. W. 901; Bell v. Scranton Coal Mines Co., 59 Wash. 659, 110 Pac. 628. In the following cases the stipu- lations were held to be for liqui- dated damages, although the word "penalty" was used: Kunkle v. 823 CONCERNING PENALTIES AND FORFEITURES. §440 ness of the sum fixed upon for the doing or not doing a Drew, 97 Mass. 445; Shute v. Taylor, 5 Met. 61; Wallis v. Carpenter, 13 Allen, 19; Lynde v. Thompson, 2 Allen, 456; Streeper v. Williams, 48 Pa. St. 450; Hatch v. Fogarty, 33 N. Y. Sup. Ct. 166; Hahn v. Horst- man, 12 Bush, 249; Yenner v. Hammond, 36 Wis. 277 (the word "pen- alty" used, but construed to be liquidated damages) ; White v. Arlith, 1 Bond, 319; Hamaker v. Schroers, 49 Mo. 406; Shute v. Hamilton, 3 Daly, 462; Gillis v. Hall, 7 Phila. 422, 2 Brewst. 342. See, also, the cases cited in the next succeeding note. In Gushing v. Dtew, 97 Mass. 445, the rule was thus stated by Chapman, J.: "The tendency and preference of the law is to regard a sum stated to be payable if a contract is not fulfilled as a penalty, and not as liquidated damages. Yet courts endeavor to learn from the subject-matter of the contract, the nature of the stipula- tions, and the surrounding circumstances, what was the real intent of the parties, and are governed by such intent." In Gillis v. Hall, 7 Phila. 422, 2 Brewst. 342, it was said that when a person has bound himself in a Wherry, 189 Pa. St. 198, 69 Am. St. Rep. 802, 42 Atl. 112; Muse v. Swayne, 70 Tenn. (2 Lea), 251, 31 Am. Rep. 607; Duffy v. Shockey, 11 Ind. 70, 71 Am. Dec. 348; Pastor v. Solomon, 54 N. Y. Supp. 575, 25 Misc. Eep. 322; Hardee v. Howard, 33 Ga. 533, 83 Am. Dec. 176; Kobin- son V. Centonary Fund & Preachers Aid Soc, 68 N". J. L. 723, 54 Atl. 416; In re White, 84 L. T. 594, 50 Wlkly. Eep. 81; Erickson v. Green, 47 Wash. 613, 92 Pac. 449. In the following cases the stipula- tions were held to be for liquidated damages, although the word "for- feiture" or "forfeit" was used: Mc- Curry v. Gibson, 108 Ala. 451, 54 Am. St. Rep. 177, 18 South. 806; Sanford v. First Nat. Bank, 94 Iowa, 680, 63 N. W. 459; Goldman v. Gold- man, 51 La. Ann. 761, 25 South. 555; Pendleton v. Electric Light Co. (N. C.) 27 S. E. 1003; Pressed Steel Car Co. V. Eastern R'y Co., 121 Fed. 609; Dobbs v. Turner (Tex. Civ. App.), 70 S. W. 458; Eakin v. Scott, 70 Tex. 442, 7 S. W. 777; Hardie Tynes Foundry & Mach. Co. v. Glen Allen Oil Mill (Miss.), 36 South. 262; Barber Asphalt Paving Co. v. City of Wabash, 43 Ind. App. 167, 86 N. E, 1034; Western Gas Co. v. Dowagiac Gas & Fuel Co., 146 Mich. 119, 10 Ann. Cas. 224, 109 N. W. 29. In the following cases provisions were held penalties, although called liquidated damages by the parties: Condon v. Kemper, 47 Kan. 126, 13 L. R. A. 671, 27 Pac. 829; Gay Mfg. Co. v. Camp,- 65 Fed. 794, 13 C. C. A. 137, 25 U. S. App. 134; Wilhelm v. Eaves, 21 Or. 194, 14 L. R. A. 297, 27 Pac. 1053; J. I. Case Threshing Co. v. Souders, 48 Ind. App. 503, 96 N. E. 177; Chicago, B. & Q. R. Co. v. Dock- ery, 195 Fed. 221, 115 C. C. A. 173; Sanders v. McKim, 138 Iowa, 122, 115 N. W. 917; Stoner v. Shultz, 69 Wash. 687, 125 Pac. 1026; Coker v. Brevard, 90 Miss. 64, 43 South. 177; Gougar v. Buffalo Specialty Co., 26 Colo. App. 8, 141 Pac. 511. In Wright v. Dobie, 3 Tex. Civ. App. 194, 22 S. W. 66, the word "forfeit" was used, and the court held that it was for the jury to say whether the intent was for a penalty 440 EQUITY JURISPRUDENCE. 824 particular act — that is, the fact of its being dispropor- certain sum lo do or not to do a certain thing, the court will look at the language of the contract, the intention of the parties as gathered from all its provisions, the subject-matter of the contract and its surroundings, the ease or difficulty of measuring the breach in damages, and the sum stipulated; and from the whole decide whether equity and good conscience require that said sum shall be treated as liquidated damages or only as a penalty. It does not seem possible to formulate the rule in any more comprehensive and accurate a manner than this. In White v. Arlith, 1 Bond, 319, it was held that if a sum stipulated to be paid on a breach is termed in the instrument a "penalty," it will always be treated only as a penalty; but if it is termed "liquidated damages," it may be treated as a penalty, if that appears to be the intent. This attempted distinc- tion between the effect of using the word "penalty," and that of using the words "liquidated damages," is not only unsupported by authority, but is directly opposed to the whole cun-ent of authority, English and American. or for liquidated damages. In Van Buren v. Degges, 52 U. S. (11 How.) 461, the court said: "The term 'for- feiture' imports a penalty; it has no necessary or natural connection with the measure or degree of injury which may result from a breach of contract, or from an imperfect per- formance. It implies an absolute in- fliction, regardless of the nature and extent of the causes by which it is superinduced. Unless, therefore, it shall have been expressly adopted and declared by the parties to be a measure of injury or compensation, it is never taken as such by courts of justice, who leave it to be en- forced where this can be done in its real character, viz.: that of a pen- alty." In Smith v. Brown, 164 Mass. 584, 42 N. E. 101, there was an agreement not to engage in busi- ness "under a penalty of one thou- sand dollars." The court said: "Even if the use of that word is not conclusive, it has been declared by this court and by others that very strong evidence would be required to authorize them to say that the par- ties' own words do not express their intention in this respect. The in- tention to liquidate damages may not prevail in all cases, but, if the intent expressed is to impose a pen- alty, the court cannot give the words a larger scope." In Kilbourne v, Burt & Brabb Lumber Co., 23 Ky. L. Eep. 985, 55 L. R. A. 275, 64 S. W. 631, the court said: "Wliere the word 'penalty' is used, it is generally con- clusive against its being held liqui- dated damages." In Iroquois Fur- nace Co. V. Wilkin Mfg. Co., 181 111. 582, 54 N. E. 987, the court said: "The word 'penalty' prima facie ex- cludes the notion of stipulated dam- ages, although the use of either the word 'penalty' or the words 'liqui- dated damages' is not conclusive." In Williams v. Vance, 9 S. C. (9 Eich.) 344, 30 Am. Eep. 26, the court said: "When the parties declare that the sum or rate fixed shall be deemed liquidated damages, and the case is one in which they are at liberty so to declare, such declaration must 825 CONCERNING PENALTIES AND FORFEITURES. 440 tioned in amount to the damage which results therefrom — will not of itself be a sufficient reason for holding it to be a penalty.^ ^ § 440, 3 Astley v. Weldon, 2 Bos. & P. 351 ; Chilliner v. Chilliner, 2 Ves. 528; Roy v. Duke of Beaufort, 2 Atk. 190; Logan v. AVienholt, 1 Clark & F. 611 ; Clement v. Cash, 21 N. Y. 253 ; Shiell v. MeNitt, 9 Paige, stand unless inconsistent with other parts of the same instrument or un- reasonable in itself. In inquiring whether it is reasonable it is not necessary to ask whether it is wise or considerate, but whether it is in conflict with the principles and practices that govern transactions of a like nature." But in Ross v. Loe- scher, 152 Mich. 386, 125 Am. St. Eep. 418, 116 N. W. 193, the court said: "Courts will disregard the ex- press stipulation of the parties only in those cases where it is obvious from the contract before them and the whole subject-matter that the principle of compensation has been disregarded." See, also, Kaplan v. Gray, 215 Mass. 269, 102 N. E. 421. In Mayor etc. of Brunswick v. Aetna Indemnity Co., 4 Ga. App. 722, 62 S. E. 475, it was held that the fact that a bond was said to be in a penal sum, while not control- ling, was evidence that it was in- tended as a penalty. To the same effect, Giesecke v. CuUerton, 28 111. 510, 117 N. E. 777. In Selby v. Matson, 137 Iowa, 97, 14 L. R. A. (N. S.) 1210, 114 N. W. 609, it is said that "when the stipu- lation on its face purports to desig- nate liquidated damages, the burden of proof to show that such was not the design in making it is always on the party so contending." That the parties have used the term "liquidated damages" is impor- tant: General Electric Co. v. West- inghouse Electric & Mfg. Co., 144 Fed. 458, and cases cited. Where Meaning is Doubtful, the stipulation will be construed as a penalty. Heatwole v. Gorrell, 35 Kan. 692, 12 Pac. 135; Wallis Iron Works V. Monmouth Park Ass'n, 55 N. J. L. 132, 39 Am. St. Rep. 626, 19 L. R. A. 456, 26 Atl. 140; Foley V. McKeegan, 4 Iowa (4 Clarke), 1, 66 Am. Dec. 107; Johnson v. Cook, 24 Wash. 274, 64 Pac. 729; Amanda Consol. G. M. Co. v. People's M. & M. Co., 28 Colo. 251, 64 Pac. 218; Day Bros. Lumber Co. v. Ison, 23 Ky. L. Rep. 80, 62 S. W. 516; Baird V. Tolliver, 25 Tenn. (6 Humph.) 186, 44 Am. Dec. 298; Wilson v. Mayor, etc., of Baltimore, 83 Md. 203, 55 Am. St. Rep. 339, 34 Atl. 774; Brennan v. Clark, 29 Neb. 385, 45 N. W. 472; Iroquois Furnace Co. V. Wilkin Mfg. Co., 181 III. 582, 54 N. E. 987; Wilhelm v. Eaves, 21 Or. 194, 14 L. R. A. 297, 27 Pac. 1053; Gillihan v. Rollins, 41 Neb. 540, 59 N. W. 893; Gougar v. Buf- falo Specialty Co., 26 Colo. App. 8, 141 Pac. 511; Zenor v. Pryor, 56 Ind. App. 222, 106 N. E. 746; Kellam v. Hampton, 58 Tex. Civ. App. 484, 124 S. W. 970; Miller v. Moulton, 77 Wash. 325, 137 Pac. 491; Mayor etc. of Brunswick v. Aetna Indemnity Co., 4 Ga. App. 722, 62 S. E. 475. § 440, (f ) Disproportion of tLe Sum Fixed not Conclusive. — The text is quoted in Cavanaugh v. Conway, 36 R. I. 571, 90 Atl. 1080. The text 441 EQUITY JURISPKUDENCE. 826 § 441. Rules Determining Liquidated Damages and Pen- alties. — ^^While it is impossible to formulate one universal criterion by which the question of penalty or liquidated damages can be determined in every instance, certain par- 101; Dwinel v. Brown, 54 Me. 4G8; Mor^e v. Ratliburn, 42 Mo. 594, 97 Am. Dec. 359; Gower v. Saltmarsh, 11 Mo. 27; Peine v. Weber, 47 111. 41 ; Gamble v. Linder, 76 111. 137 ; Williams v. Green, 14 Ark. 313 ; Hodges V. King, 7 Met. 583, Still the amount of the sum may always be taken into consideration as an aid to the court in determining the intention of the parties; and if it be altogether excessive, this may turn the scale in favor of declaring it intended as a penalty: Barry v. Wisdom, 5 Ohio St. 241; Perkins v. Lyman, 11 Mass. 76, 6 Am. Dec. 158; Lynde v. Thomp- son, 2 Allen, 456, 459; Hodgson v. King, 7 Met. 583; Streeper v. Will- iams, 48 Pa. St. 450; Curry v. Larer, 7 Pa. St. 470, 49 Am. Dec. 486; Colwell v. Lawrence, 38 Barb. 643, 38 N. Y. 71. is supported in the recent case of Sun Printing and Pub. Ass'n v. Moore, 183 U. S. 642, 22 Sup. Ct. 240. The court reviewed a long list of authorities, expressed disapproval of the cases of Chicago House- Wrecking Co. V. U. S., 166 Fed. 385, 53 L. R. A. 122, 45 C. C. A. 343, and Gay Mfg. Co. t. Camp, 65 Fed. 794, 25 U. S. App. 134, 13 C. C. A. 137, 68 Fed. 67, 25 U. S. App. 376, 15 C. C. A. 226, and announced its con- clusion as follows: "It may, we think, fairly be stated that when a claimed disproportion has been as- serted in actions at law, it has usually been an excessive dispropor- tion between the stipulated siim and the possible damages resulting from u trivial breach apparent on the face of the contract, and the question of disproportion has been simply an element entering into the considera- tion of the question of what was the intent of the parties, whether bona fide to fix the damages, or to stipu- late the payment of an arbitrary sum as a penalty, by way of secur- ity." See, also, Taylor v. Times Newspaper Co., 83 Minn. 523, 85 Am. St. Rep. 473, 86 N. W. 760. And see Keeble v. Keeble, 85 Ala. 552, 5 South. 149. In this case it was ar- gued that inasmuch as it was pos- sible for a breach to occur with no actual damages, other than nominal, the amount agreed upon should be construed as a penalty. In answer, the court pointed out that such is the character of most agreements, and held that it could not enter into an investigation of the quantum of damages. Where the amount stipulated for is unreasonable it is evidence that the parties did not intend to provide for compensatory damages, and the provision will be held a penalty. Condon v. Kemper, 47 Kan. 126, 13 L. R. A. 671, 27 Pac. 829. See, also, Iroquois Furnace Co. v. Wilkin Mfg. Co., 181 111. 582, 54 N. E. 987; Northwest Fixture Co. v. Kilboiirne & Clark Co. (C. C. A.), 128 Fed. 256; J. I. Case Threshing Co. v. Sen- ders, 48 Ind. App. 503, 96 N. E. 177; Selby V. Matson, 137 Iowa, 97, 14 L. R. A. (N. S.) 1210, 114 N. W. 609. 827 CONCERNING PENALTIES AND FORFEITURES. §441 ticular rules have been well settled by the decisions, which apply to many important and customary forms and kinds of agreements, although there are, of course, numerous cases which cannot easily be brought within the operation of See, also, Cowart v. Walter Connolly & Co. (Tex. Civ. App.), 108 S. W. 973. "Although a sum be named as 'liqui- dated damages' the courts will not so treat it, unless it bear such pro- portion to the actual damages that it may reasonably be presumed to have been arrived at upon a fair estimation by the parties of the com- pensation to be paid for the pro- spective loss. If the supposed stipu- lation greatly exceed the actual loss, — if there be no approximation be- tween them, and this be made to ap- pear by the evidence, — then, it seems to us, and then only, should the ac- tual damages be the measure of re- covery"; Collier v. Betterton, 87 Tex, 442, 29 S. W. 468. Accordingly, in Wilcox V. Walker (Tex. Civ. App.), 43 S. W. 579, where there was a stipulation to keep property insured or pay a certain amount in case of fire, it was held that the defendant might show that the property was of no value. In Weedon v. American Bonding & Trust Co., 128 N. C. 69, 38 S. E. 255, damages for delay in com- pleting a building were fixed at $10 per day. The rental value of the building was $30 per month. It was held that the sum was a penalty, the court saying (quoting from Ward v. Building Co., 125 N. Y. 230, 26 N. E. 256) that "when the sum specified in the contract as liquidated damages is disproportionate to the presumed or probable damage or to a readily as- certainable loss, the courts will treat it as a penalty, and will relieve on the principle that the precise sum was not of the essence of the con- tract, but was in the nature of se- curity for performance." A similar result on similar facts was reached in Cochran v. People's E'y Co., 113 Mo. 359, 21 S. W. 6; Jennings v Wilier (Tex. Civ. App.), 32 S. W. 24. In J. G. Wagner Co. v. Cawker, 112 Wis. 532, 88 N. W. 532, t'Ae question arose over a stipulation for liquidated damages for delay. The court intimated that if the amount were greatly disproportionate to the actual damage it should be consid- ered a penalty. See, also, Elzey v. City of Wintersett, 172 Iowa, 643, 154 N. W. 901 (twenty-five dollars a day for delay in completing contract for street improvements; no show- ing of any injury whatever to the city by reason of the delay) ; Joeckel V. Johnson (Iowa), 159 N. W. 672; Ward V. Haren, 183 Mb. App. 569, 167 S. W. 1064; Golden v. McKim, 37 Nev. 205, 141 Pac. 676. Where the amount is unreasonable and the enforcement would work a hardship, the stipulation will be held to be a penalty; Dennis v. Cummins, 3 Johns. Cas. 297, 2 Am. Dec. 160. In Gilli- han V. Eollins, 41 Neb. 540, 59 N. W. 893, the court held that stipulations will be held to be for liquidated dam- ages only "when to do so will no more than compensate for his loss." Ordinarily, if at the time the con- tract is entered into the amount of damage which will be sustained by a breach appears to be uncertain and difficult of ascertainment, the par- ties will be allowed to stipulate for liquidated damages. The fact that when the breach occurs the damage §441 EQUITY JURISPRUDENCE. 828 either of them. The following are the rules which have thus been established by judicial authority. First. Wherever the payment of a smaller sum is secured by a larger, the larger sum thus contracted for can never be treated as liquidated damages, but must always be con- sidered as a penalty.! ^ § 441, 1 Aylett v. Dodd, 2 Atk. 239 ; Astley v. Weldon, 2 Bos. & P. 350-354; Lampman v. Cochran, 16 N. Y. 275; Clement v. Cash, 21 N. Y. 253, 260 ; Bagley v. Peddle, 16 N. Y. 469, 471, 69 Am. Dec. 713 ; Dakln v. Williams, 17 Wend. 447, 22 Wend. 401; Tlernan v. Hamman, 16 111. 400. The stipulation creates a penalty within this rule, whatever be the fonn of the contract secured, if it be in effect one for the payment of money; that is, where it may not in express terms provide for the payment of money, but its performance results in such payment. As examples: In an agreement to stay the enforcement of a decree of mortgage foreclosure for a specified time, a stipulation to pay a fixed sum upon default in per- forming the decree was held to be a penalty: Kuhn v. Meyers, 37 Iowa, 351; and in an agreement to pay the plaintiff's debts, and to save him harmless from any suit which might be brought upon such demands, a proves to be less than the estimate will not vary the rule, unless the difference is so great as to lead to •the conclusion that the estimate was not bona fide: Baltimore Bridge Co. V. United Rys. & Electric Co., 125 Md. 208, 93 Atl. 420. In Banta v. Stamford Motor Co., 89 Conn. 51, 92 Atl. 665, a stipulation for fifteen dollars a day for delay in perform- ance of a contract relating to a motor boat was sustained, although it appeared that the only actual loss to the owner was depriving him of a cruise to Chesapeake Bay. But see The Colombia, 197 Fed. 661, where the court held that no provi- sion in a contract for the payment of a fixed sum as damages will be enforced in a case where the court sees that no damage has in fact been sustained. § 441, (a) The text is quoted in Zenor v. Pryor, 56 Ind. App. 222, 106 N. E. 746; Stoner v. Shultz, 69 Wash. 687, 125 Pae. 1026. See Chicago House-Wrecking Co. v. U. S., 106 Fed. 385, 53 L. R. A. 122, 45 C. C. A. 343; Brennan v. Clark, 29 Neb. 385, 45 N. W. 472; Kilbourue v. Burt & Brabb Lumber Co., 23 Ky. L. Rep. 985, 55 L. R. A. 275, 64 S. W. 631; Walsh v. Curtis, 73 Minn. 254, 76 N. W. 52. A stipulation in a mort- gage that if default is made in the payment of interest or principal at the times designated, the mortgagors will pay interest on the principal at the rate of twelve per cent per an- num from the date of the note until payment is made, the rate of interest in the absence of such default being only seven per cent per annum, is a stipulation for a penalty, and not enforceable in equity: Krutz v. Bob- bins, 12 W'ash. 7, 50 Am. St. Rep. 871, 28 L. R. A. 676, and cases cited, 40 Pac. 415; Richardson v. Campbell, 31 Neb. 181, 33 Am. St. Rep. 633, 51 N. W. 753. But see National Life 829 CONCERNING PENALTIES AND FORFEITURES. §44^ § 442. Second. Where an agreement is for the perform- ance or non-performance of only one act, and there is no stipulation to pay a fixed sum upon default Avas held to be a penalty: Morris v. McCoy, 7 Nev. 399. The stipulation is held to be a penalty, not only when it thus certainly provides for the payment of a larger sum upon a default in paying a smaller amount, but also where it may possibly lead to such a result: Spear v. Smith, 1 Denio, 465; Hoag v, McGinnis, 22 Wend. 163; Niver v. Rossman, 18 Barb. 50; Gregg v. Crosby, 18 Johns. 219, 226; Curry v. Larer, 7 Pa. St. 470, 49 Am. Dec. 486. In Spear v. Smith, 1 Denio, 465, there was an agreement to comply with the decision of arbitrators to whom a controversy had been submitted, or else to pay one hundred dollars, and the latter sum was held to be a penalty, because the award might be for the payment of a sum of money, as in fact it was.** It is partly for this reason that where a contract con- tains several stipulations, some for the payment of money, and others for the doing or not doing of specified acts, an additional provision bind- ing a party to pay a fixed sum in case of his default in any of these Ins. Co. v. Hale (Okl.), 154 Pac. 536, and cases cited: Rvissell v. Wright, 23 S. D. 338, 121 N. W. 842. In Goodyear Shoe Mach. Co, v. Selz, Schwab & Co., 157 111. 186, 41 N. E. 625, a lessor agreed that "if the rents and royalties due on the first day of any month shall be paid on or before the fifteenth day of that month, it will, in consideration thereof, grant a discount of fifty per cent." This was held to provide for a penalty. In Gay Mfg. Co. v. Camp, 65 Fed. 794, 13 C. C. A. 137, 25 U. S. App. 134, there was an agreement for stipulated damages in case of a de- fault by a lessee in the payment of rent. The court held the provision to be a penalty. In Mason v. Callender, 2 Minn. 350, 72 Am. Dec. 102, a promissory note which provided for a greater rate of interest after ma- turity than before was before the court. It was held that after ma- turity only damages could be recov- ered, and that the provision had the effect of making a larger sum due upon failure to pay a smaller. Hence the provision was held to be a penalty. See, also, Gower v. Car- ter, 3 Iowa (3 Clarke), 244, 66 Am. Dec. 71. But see Close v. Riddle, 40 Or. 592, 91 Am. St. Rep. 580, and note, 67 Pac. 932. In Morrill v. Weeks, 70 N. H. 178, 46 Atl. 32, the court said: "The intention of the parties is generally the test to deter- mine whether a promise to pay a fixed sum of money for any default in the performance of a contract is in the nature of a penalty or of liquidated damages. But a promise to pay a large sum of money in the event of a default in the payment of a much smaller sum is an exception to this rule; for the law makes in- terest the measure of damages for failure to pay money when it is due, and will not permit parties to avoid the usury laws in this way. Such a promise will be treated as a penalty, and not as liquidated damages." § 411, (b) This portion of the note is quoted in Colonua Dry Dock Co. v. Colonna, 108 Va. 230, 61 S. E. 770. § 442 EQUITY JURISPRUDENCE. 830 adequate means of ascertaining the precise damage which may result from a violation, the parties may, if they please^ by a separate clause of the contract, fix upon the amount of compensation payable by the defaulting party in case of a breach; and a stipulation inserted for such purpose will be treated as one for *' liquidated damages," unless the intent be clear that it was designed to be only a penalty.! ^ matters is necessarily a penalty : Whitfield v. Levy, 35 N. J. L. 149 ; Shiell V. McNitt, 9 Paige, 101, 106; Niver v. Rossman, 18 Barb. 50. In Whit- field V. Levy, 35 N. J. L. 149, the purchaser of a gi-ocery promised to pay one thousand three hundred dollars as the price, and the seller prom- ised not to engage in the same business for ten years, and the contract added that the parties "bound themselves to each other under the penalty of five hundred dollars, to be paid by him who should fail to carry out this agreement." The five hundred dollars was held to be a penalty as to both the parties, since it was necessarily so with resj^ect to the pur- chaser's covenant to pay the price. Although this rule with respect to penalties intended as a security for payment of money is generally adopted and enforced by courts of law as well by those of equity, yet it seems that a contract in express terms to pay a larger sum, exceeding the interest, as compensation for delay in paying a smaller amount, may be valid and operative at law, when not contrary to the statutes against usury: See Davis v. Hendrie, 1 Mont. Ter. 499; Hardee v. Howard, 33 Ga. 533, 83 Am. Dec. 176; Sutton v. Howard, 33 Ga. 536; Goldworthy v. Strutt, 1 Ex. 659, 665; Lynde v. Thompson, 2 Allen, 456, 459. Eveiy such contract would, however, be relieved against in equity. § 442, 1 The leading case under this rule is Rolfe v. Peterson, 2 Brown Pari. C, Tomlins's ed., 436, where a lessee covenanted not to plow up any §442, (a) This section is quoted Maney, 16 Wash. 552, 48 Pac. 243. in Erickson v. Green, 47 Wasli. 613, To provide quick transit for the in- 92 Pac. 449; and cited in Bilz v. habitants of a village: Peekskill, S. Powell, 50 Colo. 482, 38 L. R. A. C. & M. E. Co. v. Village of Peek- (N. S.) 847, 117 Pac. 344. Provi- skill, 47 N. Y. Supp. 305, 21 App. sions for damages for the breach of Div. 94 (affirmed 59 N, E. 1128, 165 the following agreements have been N. Y. 628). By a manufacturing held to be liquidated damages: To company, donee of a free site from provide a theater for plaintiff's the- the chamber of commerce of a city, atrieal company: Mawson v. Leavitt, to maintain a pay-roll of $50,000 a 37 N. Y. Supp. 1138, 16 Misc. Eep. year: Board of Commerce of Ann 289. To build on land conveyed to Arbor v. Security Trust Co., 225 Fed. defendant: Everett Land Co. v. 454, 140 C. C. A. 486. By a tele- 831 CONCERNING PENALTIES AND FORFEITURES. §44- § 443. Third. Where an agreement contains provisions of the ancient meadow or pasture land, and if he did he was to pay an additional rent of five pounds per acre. This additional rent was held by the house of lords to be liquidated damages. The same has been held phone company, not to cease compe- tition: City of New Britain v. New Britain Tel. Co., 74 Conn. 326, 50 Atl. 881. To submit a controversy to a judge without service of sum- mons, etc.: Pendleton v. Electric Light Co. (N. C), 27 S. E. 1003. Not to sell a patent medicine at less than the regular price: Garst v. Har- ris, 177 Mass. 72, 58 N. E. 174. To keep an account and pay a certain percentage for the rent of machines, the breach being the failure to keep the account: Standard Button Fast- ening Co. v. Breed, 163 Mass. 10, 39 N. E. 346. Not to publish a libel on plaintiff: Emery v. Boyle, 200 Pa. St. 249, 49 Atl. 779. To employ plain- tiff and pay him a certain percent- age, the breach being a discharge: Glynn v. Moran, 174 Mass. 233, 54 N. E. 535. To work for one party: Fisher v. Walsh (Wis.), 78 N. W. 437. A contract for services stipu- lating that if the employee shall leave the service without giving two weeks' previous notice of his inten- tion to do so, he shall forfeit a specified sum, which may be de- ducted from the wages due him, is valid, especially if the circumstances and nature of the employment are such that it will be difficult to calcu- late with any certainty the actual loss resulting to the employer from the abandonment of the employment without previous notice: Tennessee Mfg. Co. v. James, 91 Tenn. 154, 30 Am. St. Rep. 865, 15 L. R. A. 211, 18 S. W. 262. In Werner v. Finley, 144 Mo. App. 551, 129 S. W. 73, a con- tract of employment for three years at sixty dollars per month provided that in case of breach by the em- ployee he should pay ten dollars per month for the unexpired term. After one year he left the employ- ment and entered the service of a competitor. It was held that the provision was for liquidated dam- ages. See, also, Bilz v. Powell, 50 Colo. 482, 38 L. R. A. (N. S.) 847, 117 Pac. 344. But see Schrimpf v. Tennessee Mfg. Co., 86 Tenn. 219, 6 Am. St. Rep. 832, 6 S. W. 131. In Missouri-Edison Elect. Co. v. M. J. Steinberg Hat & Fur Co., 94 Mo. App. 543, 68 S. W. 383, plaintiff agreed to give defendant a discount if defendant should use plaintiff's power for a year. Defendant broke the contract, and plaintiff sued to recover the amount of the discount. It was held that plaintiff was en- titled to this relief. In Knox Rock- Blasting Co. V. Grafton Stone Co., 60 Ohio St. 361, 60 N. E. 563, it was agreed that if defendant should con- tinue to use a patent after the ter- mination of his license, without ob- taining a new one, he should pay double the former fees for the time of such user. This was held to be a stipulation for liquidated damages. In Keeble v. Keeble, 85 Ala. 552, 5 South. 149, it was held that a stipu- lation by a business manager to wholly abstain from the use of in- toxicating liquors was for liquidated damages. Section 442, note 1, of this work was cited as authority. In Burley Tobacco Society v. Gil- laspy, 51 Ind. App. 583, 100 N. E. 89, a number of persons had formed §443 EQUITY JURISPRUDENCE. 832 for the performance or non-performance of several acts of in other cases with respect to similar covenants by lessees: Woodward v. Gyles, 2 Vern. 119; Jones v. Green, 3 Younj^e & J. 298. This rule has been applied in many cases, where a party, either in connection with a themselves into an association to pool their tobacco crops and thus raise the price. The members bound themselves by a provision for pay- ment of twenty per cent of the crop in case of breach. It was held that the provision called for liquidated damages: Compare Webster v. Bos- anquet, [1912] A. C. 394. But a contrary result was reached in a similar case in California: Naka- gawa V. Okamoto, 164 Cal. 718, 130 Pac. 707. In Gussow v. Beineson, 76 N. J. L. 209, 68 Atl. 907, the agree- ment was to enter into a partner- ship, but if a partnership should not be entered into, defendant was to pay plaintiff $500 as further com- pensation for his services. The stipulation was held to be for liqui- dated damages. In Illinois Trust & Sav. Bank v. City of Burlington, 79 Kan. 797, 101 Pac. 649, it was held that a provision in a contract stipulating that if a water company shall be temporarily unable to sup- ply water, no rentals shall be paid during such period, and if the dis- ability shall be the fault of the com- pany, the rebate shall be for double the period of disability, was for liquidated damages. In Chicka- sawba R, Co. v. Crigger (.Jonesboro, Lake City & E. R. Co. v. Crigger), 83 Ark. 364, 103 S. W. 1153, a rail- road agreed to build a station on certain land and to transact usual business there, and $600 was fixed as liquidated damages. The provision was held valid. In general, see City of York V. York Rys. Co., 229 Pa. 236, 78 Atl. 128; Yatsuyanagi v. Shimamura, 59 Wash. 24, 109 Pac. 282 (breach of partnership agree- ment) ; Herberger v. H. E. Orr Co., 62 Wash. 526, 114 Pac. 178; Gann v. Ball, 26 Okl. 26, 110 Pac. 1067; Cox V. Smith, 93 Ark. 371, 137 Am. St. Rep. 89, 125 S. W, 437 (failure to build partition wall). In the following cases the breaches of the agreements were held to be such that damages were easily ascer- tainable, and therefore the stipula- tions were held to be penalties: Agreement between creditors to grant an extension and not to pur- chase stock of the debtor: Hill v. Wertheimer-Swarts Shoe Co., 150 Mo. 483, 51 S. W. 702. Agreement to pay a certain sum if a lighter hired should be lost: Wilmington Transp. Co. v. O'Neil, 98 Cal. 1, 32 Pac. 795. Where the utmost liability is $1,800, a provision for $3,000 damages is a penalty: Stoner v. Shultz, 69 Wash. 687, 125 Pac. 1026. Where the con- tract relates to a subject as to which the law has a fixed or reasonably definite rule for ascertainment of damages, and the parties in advance attempt to stipulate the amount, especially where the amount is in excess of what the damages would ordinarily be if estimated according to the law's measure, the stipulation is generally held to be a penalty: Florence Wagon Works v. Salmon, 8 Ga. App. 197, 68 S. E. 866. For mis- cellaneous examples, ?oe Carey v. Mackey, 82 Me. 516, 17 Am. St. Rep. 500, 9 L. R. A. 113, 20 Atl. 84; Menges v. Milton Piano Co. (Mo.), 70 S. W. 250; Deuninck v. West Gal- 833 CONCERNING PENALTIES AND FORFEITURES. §443 different degrees of importance, and then a certain sum sale of bis stock in trade and good-will, or under other circumstances, covenants that he will not carry on his trade or business within certain limits, and adds a clause making himself liable to pay a specified sura upon any violation of the covenant; such sum is liquidated damages.** Green V; Price, 13 Mees. & W. 695, 16 Mees. & W. 354; Atkins v. Kin- latin Irr. Co., 28 Mont. 255, 72 Pac. 618; Caesar v. Eubinson, 174 N. Y. 492, 67 N. E. 58; Stony Creek Lum- ber Co. V. Fields (Va.), 45 S. E. 797. Where it appears that the amount stipulated for is to be in addition to actual damages, it will be construed to be a penalty. Meyer V. Estes, 164 Mass. 457, 32 L. R. A. 283, 41 N. E. 683; Foote & Davies Co. V. Maloney, 115 Ga. 985, 42 S. E. 413. § 442, (b) Covenant not to Carry on a Business. — See McCurry v. Gib- son, 108 Ala. 451, 54 Am. St. E«p. 177, 18 South. 806; Franz v. Bieler, 126 Cal. 176, 56 Pac. 249, 58 Pac. 466; Potter v. Ahrens, 110 Cal. 674, 43 Pac. 388; California Steam Nav. Co, V. Wright, 6 Cal. 258, 65 Am. Dec. 511; Duffy v. Shockey, 11 Ind. 70, 71 Am. Dec. 348; Miller v. El- liott, 1 Ind. (1 Cart.) 484, 50 Am. Dec. 475; Studabaker v. White, 31 Ind. 211, 99 Am, Dec. 628; Goldman v. Goldman, 51 La. Ann. 761, 25 South. 761; Holbrook v. Tobey, 66 Me. 419, 22 Am, Rep. 581; Dunlop v. Gregory, 10 N. Y. (6 Seld.) 241, 61 Am, Dec, 746; Breck v. Eingler, 59 Hun, 623, 13 N, Y. Supp. 501; Kelso v. Reid, 145 Pa, St, 696, 27 Am. St. Rep, 716, 23 Atl, 323; Muse v, Swayne. 70 Tenn, (2 Lea) 251, 31 Am. Rep, 607; Tobler v. Austin, 22 Tex. Civ, App. 99, 53 S, W. 706; Rucker v. Campbell (Tex. Civ. App.), 79 S. W. 627; Shafer v, Sloan, 3 Cal. App. 335, 85 Pac. 162; Schoolniek v. Gold, 89 Conn. 110, 93 Atl, 124; Merica v. 1—53 Burget, 36 Ind, App. 453, 75 N. E, 1083; Geiger v. Cowley, 146 Mich. 550, 109 N, W, 1064; Orenbaum Bros, V, Lowell Bros, (Tex, Civ. App.), 153 S. W. 905; Canady v. Knox, 43 Wash. 567, 86 Pac. 930. In Smith v. Brown, 164 Mass, 584, 42 N. E, 101, however, where the stipulation was penal in form, it was held to be a penalty; and in Wlilkinson v, Colley, 164 Pa, St, 35, 30 Atl, 286, 35 Wkly, Notes Cas. 177, 26 L. R. A. 114, where the defendant sought to have the stipulation declared to be for liquidated damages in order to pre- vent the issuance of an injunction and where the amount stipulated was much less than the actual dam- age, a like result was reached. And in Heatwole v. Gorrell, 35 Kan. 692, 12 Pac. 135, where the defendant bound himself "in the sum of $500" not to engage in business, the court held that the stipulation was for a penalty, saying that an instrument containing such words is always prima facie penal. See, also, Radloff V. Haase, 196 111. 365, 63 N, E. 729; Moore v. Colt, 127 Pa. St. 289, 14 Am. St. Rep, 845, 18 Atl. 8. A stip- ulation to act for plaintiff and not to violate the agreement "under a penalty of five hundred dollars" was held to be for liquidated damages in Pastor v, Solomon, 54 N, Y. Supp. 575, 25 Misc. Rep. 322. In Borley V. McDonald, 69 Vt. 309, 38 Atl. 60, an employee agreed not to solicit insurance for others within a certain time after leaving plaintiff's employ. § 443 EQUITY JURTSPRUDENCB. 834 is stipulated to be paid upon a violation of any or of all nier, 4 Ex. 776; Rawlinson v. Clarke, 14 Mees. & W, 187; Galesworthy V. Strutt, 1 Ex. 659; Streeter v. Rush, 25 Cal. 67; Gushing v. Drew, 97 Mass. 445. In the leading case of this class (Green v. Price 13 Mees. & W. 695) defendant had covenanted not to carry on the business of a hair-dresser or perfumer within sixty miles of London, and bound him- self in the sum of five thousand pounds in case of a violation. Having violated the contract, he was held liable in that sum, whether it did or did not exceed the actual damage sustained by the plaintiff. In Gushing V. Drew, 97 Mass. 445, the plaintiff had sold his business as an express- man to the defendant for six: hundred dollars, and agreed not to carry on the same business within specified limits, and if he failed to observe this agreement he was to pay the defendant nine hundred dollars. This sum was held to be liquidated damages. The test was stated by the court as follows: "The stipulation is for a simple thing, namely, to abstain from interference with the business which the plaintiff had sold to the defendant, and it is difficult to ascertain the damages that may result from the breach of such a contract." Another, not uncommon instance under this rule, in which the sum is liquidated damages, is found in con- tracts for the sale and purchase of land, where the vendor agrees to exe- cute a deed by a specified day, or if not, that he will be liable to pay a certain sum:* Ghamberlain v. Bagley, 11 N. H. 234; Durst v. Swift, 11 Tex. 274; or the vendee agrees to accept the deed and complete the purchase at a day named, or else that he will pay a certain sum: Mundy v. Culver, 18 Barb. 336; Holmes v. Holmes, 12 Barb. 137; Gammon v. Howe, 14 Me. 250; Williams v. Green, 14 Ark. 315; Yenner V. Hammond, 36 Wis. 277; or in a contract for the exchange of lands, the parties insert a similar stipulation: Gibb v. Linder, 76 111. 137. The rule has been applied in like manner to the stipulation in a lease by which the lessee is to be liable in a certain amount if he violates some single specified covenant on his part; as where a lessee covenanted and agreed "to forfeit and pay" a agreement called for liquidated dam- certain sum as liquidated damages ages. In general, see Selby v. Mat- in case of breach. The court held son, 137 Iowa, 97, 14 L. R. A. (N. S.) this to be a provision for liquidated 1210, 114 N. W. 609. damages. Penalties. — Agreement to deliver § 442, (c) Transfer of Land — Liqui- possession of land: Eva v. McMa- dated Damages. — In Lorins v. Ab- hon, 77 Cal. 467, 19 Pac. 872. Agree- bott, 49 Neb. 214, 68 N. W. 486, it ment to buy land: Monroe v. South was agreed that if defendant should (Tex. Civ. App.), 64 S. W. 1014. fail to convey certain property to Agreement to quitclaim a mining lo- the plaintiff, the latter was to have cation if plaintiff should secure a the use and control of the premises patent: O'Keefe v. Dyer, 20 Mont, for one year. It was held that the 477, 52 Pac. 196. 835 CONCERNING PENALTIES AND FORFEITURES. §443 such provisions, and the sum will be in some instances that he would not, before a day named, negotiate for, or accept, or be interested in any lease of certain premises, except from the plaintiff, under a forfeiture of ten thousand dollars, and this was held to be liqui- dated damages, so that defendant was liable for that amount : «* Smith V. Coe, 33 N. Y. Sup. Ct. 480; and where a lessee stipulated to pay five hundred dollars if he failed to surrender up the premises by a certain day: Peine v. Weber, 47 111. 41. The following are further examples of the rule, the certain sum of money stipulated to be paid for a violation of the main agreement being in each case liquidated damages. In a build- ing contract containing clauses fixing the days for completing various parts of the work, a stipulation that for any failure by the builder to comply with these provisions and to finish the work as agreed, the em- ployer might claim compensation at the rate of ten dollars per day for every day of such detention : ® O'Donnell v. Rosenberg, 14 Abb. Pr., N. S., 59; and in a contract to furnish a coal company all the timber needed § 442, (d) Agreements Between Lessor and Lessee — Liquidated Dam- ages. — By a lessor, to lease real prop- erty: Englehardt v. Batla (Tex. Civ. App.), 31 S. W. 324, 40 S. W. 150. Not to oust a tenant before the ter- mination of his lease: Guerin v. Stacy, 175 Mass. 595, 56 N. E. 892. Not to hold over after expiration of tenancy: Poppers v. Meagher, 184 111. 192, 35 N. E. 805. By a lessee under a coal lease, to mine not less than a certain number of tons per year and pay a royalty thereon: Martin v. Berwind-White Coal Min. Co., 114 Fed. 553. By lessee under oil lease to complete three wells within twelve months: Davidson v. Hughes, 76 Kan. 247, 91 Pac. 913. In Borghuis v. Schultz, 119 Minn. 87, 137 N. W. 201, a provision in a con- tract that $200 should be forfeited in the event that a lessor should lease stores in a building to another mer- cantile firm within a year was held to provide for liquidated damages. Penalties. — Agreement by tenant to pay a certain sum in ease he should be evicted for non-payment of rent: Jack v. Sinsheimer, 125 Cal. 563, 58 Pac. 130. § 442, (e) Building Contracts.— If the amount of damage caused by de- lay is uncertain, the parties are allowed to stipulate for a fixed amount: Texas, etc., R'y Co. v. Rust, 19 Fed. 239; Lincoln v. Little Rock Granite Co., 56 Ark. 405, 19 S. W. 1056; Young v. Gaunt, 69 Ark. 104, 61 S. W. 372; Lawrence County v. Stewart Bros. (Ark.), 81 S. W. 1059; De Graff, Vrieling & Co. v. Wick- ham, 89 Iowa, 720, 52 N. W. 503; McKee v. Rapp, 35 N. Y. Supp. 175; Hutton Bros. v. Gordon, 2 Misc. Rep. 267, 23 N. Y. Supp. 770; Ward v. Hudson River Bldg. Co., 125 N. Y. 230, 26 N. E. 256; White v. School Dist. of Braddock Borough, 159 Pa. St. 201, 28 Atl. 136; Carter & Co. v. Kaufman (S. C), 45 S. E. 1017; Mills V. Paul (Tex. Civ. App.), 30 S. W. 558; Brown Iron Co. v. Nor- wood (Tex. Civ. App.), 69 S. W. 253; Drumheller v. American Surety Co., 30 Wash. 530, 71 Pac. 25; Chapman Decorative Co. v. Security Mutual Life Ins. Co., 149 Fed. 189, 79 C. C. §443 EQUITY JURISPRUDENCE. 836 too large and in others too small a compensation for the for their mine during a year, to be paid for at the rate of eighteen cents on each ton of all the coal mined during the year, but if the amount mined during the year should not equal seventy-live thousand tons, then the company were "to pay the difference between the amount mined and A. 137; Caldwell v. Schmulbach, 175 Fed. 429; Dean v. Connecticut To- bacco Corp., 88 Conn. 619, 92 All. 408; Stratton v. Fike, 166 Ala. 203, 51 South. 874; Parker-Washington Co. V. City of Chicago, 267 111. 136, Ann. Cas. 1916C, 337, 107 N. E. 872; St. Louis & S. F. R. Co. v. Gaba, 78 Kan. 432, 97 Pac. 435; Western Gas Con. Co. V. Dowagiac Gas & Fuel Co., 146 Mich. 119, 10 Ann. Cas. 224, 109 N. W. 29; Thompson v. St. Charles County, 227 Mo. 220, 126 S. W. 1044; Mosler Safe Co. v. Maiden Lane Safe Deposit Co., 199 N. Y. 479, 37 L. B. A. (N. S.) 363, 93 N". E. 81; Strode v. Smith, 66 Or. 163, 131 Pac. 1032; Crawford v. Heatwole, 110 Va. 358, 34 L. R. A. (N. S.) 587, 66 S. E. 46; Erickson v. Green, 47 Wash. 613, 92 Pac. 449. In Charleston Lumber Co. v. Fried- man, 64 W. Va. 151, 61 S. E. 815, a provision for damages of ten dollars per day for delay in construction of a store was sustained. The court held that while the rental value may be the measure of damages for de- lay in construction of a dwelling, the court may consider the use intended in saying whether damages can be easily measured. See, also, United Surety Co. v. Summers, 110 Md. 95, 72 Atl. 775, where damages were difficult to estimate because the building was to be used as a store for a growing business. The con- tract provided a bonus for early completion, and the court held that it should be given mutuality of in- terpretation. Such provisions in the following contracts have been sus- tained: To build a public bridge. — Malone V. City of Philadelphia, 147 Pa. St. 416, 23 Atl. 628, 29 Wkly. Notes Cas. 251. To build a public building. — Heard v. Dooly County, 100 Ga. 619, 28 S. E. 986 (court house); Terrier V. Knox County (Tex. Civ. App.), 33 S. W. 896; Harris County v. Donald- son, 20 Tex. Civ. App. 9, 48 S. W. 791 (furnishing a court room) ; Brooks V. City of Wichita, 114 Fed. 297, 52 C. C. A. 209. To perform public work. — Thorn & Hunkins Lime & Cement Co. v. Citizens' Bank, 158 Mb. 172, 59 S. W. 109 (construction of sewer); Hipp v. City of Houston, 30 Tex. Civ. App. 573, 71 S. W. 39 (paving streets). To construct a mill or factory. — Hen- nessy v. Metzger, 152 111. 505, 43 Am. St. Rep. 267, 38 N. E. 1058 (mill); Curtis v. Van Bergh, 161 N. y. 47, 55 N. E. 398 (factory). To erect a church. — Bird v. Rector, etc., of St. .John's Episcopal Church, 154 Ind. 138, 56 N. E. 129. Miscel- laneous. — Manistee Iron Works Co. V. Shores Lumber Co., 92 Wis. 21, 65 N. W. 863 (refitting a barge); Kil- bourne v. Burt & Brabb Lumber Co., 23 Ky. L. Rep. 985, 55 L. R. A. 275, 64 S. W. 631 (delivery of logs); Illinois Cent. R. R. Co. v. Southern Seating & Cabinet Co., 104 Tenn. 568, 78 Am. St. Rep. 933, 50 L. R. A. 729, 58 S. W. 303 (delivery of church pews) ; Hardie Tynes Foun- dry Co. V. Glen Allen Oil Mill (Miss.), 36 South. 262 (delay in de- 837 CONCERNING PENALTIES AND FORFEITURES. §443 injury thereby occasioned, that sum is to be treated as a seventy-five thousand tons, at a rate of eighteen cents per ton"; this eighteen cents per ton on the difference, etc., was held liquidated dam- ages : Wolf Creek, etc., Co. v. Schultz, 71 Pa. St. 180 ; and see a similar conti-act in Powell v. Burroughs, 54 Pa. St. 329, 336; an agreement to livering engine) ; Baltimore Bridge Co. V. United Rys. & Electric Co., 125 Md. 208, 93 Atl. 420; Winston v. City of Pittsfield, 221 Mass. 356, 108 N. E. 1038 (provision for seventy- five dollars per day for delay in con- struction of reservoir) ; Barber As- phalt Pav. Co. V. City of Wabash, 43 Ind. App. 167, 86 N. E. 1034; Mayor etc. of City of Washington v. Poto- mac Engineering & Con. Co., 132 Ga. 849, 65 S. E. 80 (delay in construc- tion of waterworks) ; Tilton v. Mc- Laughlin, 83 N. J. L. 107, 84 Atl. 1044 (contract to do grading); Mayor etc. of Jersey City v. Flynn, 74 N. J. Eq. 104, 70 Atl. 497 (dam- ages of $500i per day to be paid for delay in construction of reservoir). In United States v. Bethlehem Steel Co., 205 U. S. 105, 51 L, Ed. 731, 27 Sup. Ct. 450, the government called for bids for gun carriages. Defend- ant put in two bids, based on time of delivery, the bid for early de- livery being the higher. This latter bid was accepted. The contract con- tained a provision for a deduction of a certain amount per day for delay, equivalent to the difference between the short and long time for delivery. The provision was held to call for liquidated damages. Where a build- ing is being constructed for a partic- ular use, and it would be impossible to estimate the value of that use correctly, a provision against delay will bo sustained, although the build- ing may have some ascertainable value for other purposes. Such is the case in a contract for the con- struction of a home for aged men: Kelly V. Fejervary (Iowa), 78 N. W. 828. In Reichenbach v. Sage, 13 Wash. 364, 52 Am. St. Rep. 51, 43 Pac. 354, such a provision in a con- tract for the construction of a resi- dence was upheld. The court said: "Values of rents are fluctuating, and dwelling-houses of the character and description of this one are ordinarily not built for rent at all, but for the convenience and comfort of the own- ers; and, inasmuch as the parties saw fit to settle in advance the ques- tion of damages, and it seems to be on an equitable basis, we do ' not feel justified in disturbing that con- tract, and holding that it was a con- tract which the parties had no right to make." If the rental value is a proper measure of damage the pro- vision, in some jurisdictions, is held to be a penalty: Patent Brick Co. v. Moore, 75 Cal. 205, 16 Pac. 890; Brennan v. Clark, 29 Neb. 385, 45 N. W. 472. But the party who is maintaining that a provision is a penalty because there is an ascer- tained rental value must show what the rental value is: De Graff, Vriel- ing & Co. V. Wickham, 89 Iowa, 720, 52 N. W. 503. It is quite frequently stated that the amount agreed upon must not be unreasonable and out of proportion to the probable damages. The rule is well stated in Collier v. Betterton, 87 Tex. 440, 29 S. W. 467: "Therefore the principle would seem to be that, although a sum be named as 'liquidated damages,' the courts will not so treat it, unless it bear §443 EQUITY JURISPRUDENCE. 838 penalty, and not as liquidated damages.* This rule lias improve land on which the other party has a mortgage or lien: Pearson V. Williams, 24 Wend. 246, 26 Wend. 630; an agreement guaranteeing the validity of a patent right: Brewster v. Edgerly, 13 N. H. 275; an agreement to perform certain work and lahor, or to furnish certain mate- such proportion to the actual dam- ages that it may reasonably be pre- sumed to have been arrived at upon a fair estimation by the parties of the compensation to be paid for the prospective loss. If the supposed stipulation greatly exceed the actual loss, if there be no approximation between them, and this be made to appear by the evidence, then, it seems to us, and then only, should the actual damages be the measure of the recovery." See, also, Mills v. Paul (Tex. Civ. App.), 30 S. W. 558. In the following cases it was held that the amounts stipulated for were reasonable: "Ward v. Hudson Eiver Bldg. Co., 125 N. y. 230, 26 N. E. 256; Curtis v. Van Bergh, 161 N. T. 47, 55 N, E. 398; Bird v. Eector, etc., of St. John's Episcopal Church, 154 Ind. 138, 56 N. E. 129; De Graff, Vrieling & Co. v. Wickham, 89 Iowa, 720, 52 N. W. 503; Heard v. Dooly County, 101 Ga. 619, 28 S. E. 986; Lincoln v. Little Rock Granite Co., 56 Ark. 405, 19 S. W. 1056; Thorn & Hunkins Lime & Cement Co. v. Citizens' Bank, 158 Mo. 172, 59 5. W. 109. But in Cochran v. Peo- ple's R'y Co., 113 Mo. 359, 21 S. W. 6, the amount stipulated for was held to be so disproportionate to the actual damage as to be a penalty. See, also, Weedon v. American Bonding & Trust Co., 38 S. E. 255, 128 N. C. 69; Cochran v. People's R'y Co., 113 Mo. 359, 21 S. W. 6; Jennings v. Wilier (Tex. Civ. App.), 32 S. W. 24: J. G. Wagner Co. v. Cawker, 112 Wis. 532, 88 N. W. 532; Lee v. Carroll Normal School Co. (Neb.), 96 N. W. 65; Coen & Con- way V. Birchard (Iowa), 100 N. W, 48. See, also, O'Brien v. Illinoia Surety Co., 203 Fed. 436, 121 C. C. A. 546; Henderson-Boyd Lumber Co. V. Cook, 149 Ala. 226, 42 South. 838; Ward V. Haren, 183 Mo. App. 569, 167 S. W. 1064; Golden v. McKim, 37 Nev. 205, 141 Pae. 676; First Nat. Bank v. Smith (Tex. Civ. App.), 160 S. W. 311. For a dis- cussion of the general application of the principles here laid down, see § 440, note. In Willis v. Webster, 1 § 443, (a) The text is quoted with approval in Sledge v. Arcadia Or- chard Co., 77 Wash. 477, 137 Pac. 105. This language is quoted but held inapplicable because of statute in Los Angeles Olive Growers' Ass'n V. Pacific Surety Co., 24 Cal. App. 95, 140 Pac. 295. Section 1671 of the California Civil Code provides: "The parties to a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage." It was held that an allegation "that it would be and was and is impracticable or ex- tremely difficult to fix the actual damages suffered by the plaintiff by reason of said breach, to wit, the abandonment by the said Tajiri of the said contract," was sufficient to bring the case within the statute. 839 CONCERNING PENALTIES AND FORFEITURES. § 443 been laid down in a somewhat different form, as follows: rials, within a specified time : * Curtis v. Brewer, 17 Pick. 513 ; Faunce v. Burke, 19 N. J. L. 469, 55 Am. Dec. 519 ; an agreement for the punctual payments of an annuity: Berrikott v. Traphagen, 39 Wis. 220. In apply- ing this second rule of the text, it is important to observe that a contract may come within its scope and operation, which includes various par- ticulars differing in kind and importance, provided they are in effect one; all taken together only make up one whole, the violation of which is to be compensated by the fixed sum. In other words, a contract of this kind does not necessarily fall under the third rule given in the text; but the sum made payable may be liquidated damages. The intention of the parties, however, as ascertained from the whole instrument, would guide the court : Clement v. Cash, 21 N. Y. 253 ; Bagley v. Peddie, 16 N. Y. 470, 69 Am. Dec. 713; Cotheal v. Talmage, 9 N. Y. 551, 61 Am. Dec. 716; Leary v. Laflin, 101 Mass. 334. In Clement v. Cash, 21 N. Y. 253, Wright, J., applied the rule as follows: "The contract in question, in- legal effect, provided but for the performance of a single act on each side, and at the same period of time, viz., the execution and delivery of a deed of the land by the defendant, and payment therefor by the plaintiff. That the defendant agreed to receive in payment for his deed, and the plaintiff to pay simultaneously with its delivery, the consideration in money and other property, cannot divest what was to be done of the character of a single transaction. If the defendant failed to convey, or the plaintiff to make payment in the way covenanted, there was a total non-performance. The consideration to be paid was nine thousand dol- lars, of which four thousand was to be in cash, and five thousand dollars in securities, the cash and transfers of the securities to be passed over to the defendant on receipt of the deed." In Cotheal v. Talmage, 9 N. Y. 551, 61 Am. Dec. 716, the defendant and others had severally covenanted that they would diligently devote themselves to obtaining gold and other precious metals by mining in California, under regulations specified in the agreement; that a certain portion of the earnings of each should be paid to the plaintiff; and that any of them who failed to keep his engagement should pay five hundred dollars. The defendant had violated App. Div. 301, 37 N. Y. Supp. 354, § 442, (f ) To Perform Work Within it was held that where the owner is a Certain Time — Liquidated Dam- responsible for part of the delay, he ages. — Agreement to fulfill tbe terms is not entitled to liquidated dam- of a franchise and have an electric ages, for they cannot be appor- light plant in operation by a certain tioned. And see, to the same eiFect, time: City of Salem v. Anson, 40 Or. United States v. United Engineer- 339, 56 L. R. A. 169, 67 Pac. 190. ing & Construction Co., 234 U. S. 236, See, also, City of Marshall v. Ad- 58 L. Ed. 1294, 34 Sup. Ct. 843. kins, 60 Tex. Civ. App. 336, 127 § 443 EQUITY JURISPRUDENCE. 840 "Where the agreement contains provisions for the perform- tbe agreement by absenting himself from the mining district, and refus- ing to devote himself to the search for gold. The five hundred dollars was held to be liquidated damages, since all the particulars agreed to be done were not independent stipulations, but together constituted a single undertaking which the defendant was bound to perform. In Leary v. Laflin, 101 ^Mass. 334, the lessee of a livery-stable bound himself for the pajnnent of one thousand dollars, if he, the lessee, "should not keep the stable during the demised term in a manner as satisfactory to all reasonable parties as the lessor had done, and at the end of the term sur- render said premises and good-will in as good repute and run of custom as now thei'eto pertain" ; and the one thousand dollars was on the same ground held to be liquidated damages. Does this second rule of the text include m its operation contracts for the purchase and sale of goods and chattels or securities? It has been .said that it does not, and that a stipulation to pay a fixed sum on the violation of such a contract must necessarily be a penalty, since the legal measure of damages can always be exactly ascertained, being in fact pre- scribed by the law, namely, the difference between the market price and the price agreed to be paid: Jemmison v. Gray, 29 Iowa, 537; Lee v. Overstreet, 44 Ga. 507 ; Shreve v. Brereton, 51 Pa. St. 175, 186 ; Burr v. Todd, 41 Pa. St. 209 ; Taylor v. The Marcella, 1 Woods, 302. It is plain that there are many cases in respect of which this reasoning is sound and this conclusion is just. It is equally plain that there is another class of cases to which neither this reasoning nor conclusion can apply. In many contracts for the purchase and sale of personal property, there is no such means of accurately measuring the damages which result from a viola- tion. If the agreement is for the sale generally of things of a certain kind or description, on a default the vendee can, as a rule, go into the market and purchase other articles answering to the description; the measure of his loss is then fixed by the law at the difference between the market price which he pays, and the agreed price; and any certain sum stipulated to be paid him by way of compensation would be a penalty. S. W. 1148; City of York v. York company should pay fifty dollars Eys. Co., 229 Pa. 236, 78 Atl. 128. per month rent until the tracks Penalties. — Agreement to repair were removed. In case they were fire hydrants within a certain time: not removed within six months. Light, Heat & Water Co. v. City of rent was to be increased twenty-five Jackson, 73 Miss. 598, 19 South. 771. dollars per month, and a like in- In Muehlbach v. Missouri & K. I. crease was to accrue each succeed- R'y Co., 166 Mo. App. 305, 148 ing period of six months until re- S. W. 453, a contract for removal moval. The provision was held a of tracks was drawn in the form penalty. of a lease, and provided that the 841 CONCEENING PENALTIES AND FORFEITURES. §443 ance or non-performance of acts which are not measurable But where the agreement is for the sale and delivery of certain specified things, there may not be any mode of ascertaining the amount of loss resulting from a non-performance, and the certain sum fixed upon by the contract may be liquidated damages, and not a penalty. Tliis would clearly be so in all those contracts for the delivery of personal property, which a court of equity would specifically enforce: Lynde v. Thompson, 2 Allen, 460, per Bigelow, C. J.; Gammon v. Howe, 14 Me. 250; Cham- berlain V. Bagley, 11 N. H. 234; Mead v. Wheeler, 13 N. H. 351; Tingiey V. Cutler, 7 Conn. 291; Shiell v. McNitt, 9 Paige, 101, 103; Clement v. Cash, 21 N. Y. 253; Knapp v. Maltby, 13 Wend. 587; Streeper v. Will- iams, 48 Pa. St. 450; Hise v. Foster, 17 Iowa, 23; Morse v. Rathburn, 42 Mo. 594, 97 Am. Dec. 359; Williams v. Green, 14 Ark. 315, 327. If, however, the stipulated sum should be excessive in amount, and greatly exceed the value of the property, this would be a strong, even if not con- clusive, reason for a court of equity to treat it as a penalty : «' See Spencer v. Tilden, 5 Cow. 144; Haldeman v. Jennings, 14 Ark. 329; Williams v. Green, 14 Ai'k. 315, 326; Burr v. Todd, 41 Pa. St. 206. §442, (e) Personal Property — Liquidated Damages. — Agreement to purchase the stock of a corporation: Leeman v. Edison Electric Ilium. Co., 53 N. Y. Supp. 302. Sale of a slave: Tardeveau v. Smith, 3 Ky. (Hardin) 175, 3 Am. Dec. 727. In Cummings v. Dudley, 60 Cal. 383, 44 Am. Rep. 58, a provision in a con- tract to sell horses, where no time was fixed for delivery and no speci- fied horses were agreed upon, was held to be for liquidated damages. A stipulation for liquidated damages for failure to deliver cattle sold has been enforced: Frost v. Foote (Tex. Civ. App.), 44 S. W. 1071: Copeland V. Holman (Tex. Civ. App.), 51 S. W. 257; Millar v. Smith, 28 Tex. Civ. App. 386, 67 S. W. 429. But in Evans v. Moseley, 84 Kan. 322, 50 L. R. A. (N. S.) 889, 114 Pac. 374, a provision for the forfeiture of $3,000 paid as an advance pay- ment on purchase of cattle, was held to be a penalty. In Maxwell v. Allen, 78 Me. 32, 57 Am. Rep. 783, 3 Atl. 386, a provision in a con- tract by one partner to sell a stock of goods to another was held to bo for liquidated damages. Penalties. — Agreement for sale of stock or bonds which have a market value: Baird v. Tolliver, 25 Tenn, (6 Humph.) 186, 44 Am. Dec. 298; Graham v. Bickham, 4 Dall. 149, 2 Yeates, 32, 1 Am. Dec. 328. Sale of sheep or cattle: Squires v. El- wood, 33 Neb. 126, 49 N. W. 939; Home Land & Cattle Co. v. Mc- Namara, 111 Fed. 822, 49 C. C. A. 642. Sale of railroad ties: Gulf, C. & S. F. R. Co. V. Ward (Tex. Civ. App.), 34 S. W. 328. Sale of bug- gies: Mansur & Tebbetts Impl. Co. V. Willet (Okl.), 61 Pac. 1066. Sale of bags: Pacific Factor Co. v. Adler, 90 Cal. 110, 25 Am. St. Rep. 102, 27 Pac. 36. A person to whom is awarded a contract to furnish a city with certain articles of personalty may recover a certified check de- posited with the city under a pro- vision of law requiring all bidders § 443 EQUITY JURISPRUDENCE. 842 by any exact pecuniary standard, and also of one or more other acts in respect of which the damages are easily ascer- tainable by a jury, and a certain sum is stipulated to be paid upon a violation of any or of all these provisions, such sum must be taken to be a penalty. ^ ^ § 443, 1 Snell's Equity, 288 ; Kemble v. Farren, 6 Bing. 141 ; Davies V. Penton, 6 Barn. & C. 216, 223; Horner v. Flintoff, 9 Mees. & W. 078, 681; Dimick v. Coilett, 12 Moore P. C. C. 199; Trower v. Elder, 77 111. 452, and cases cited; First Orthodox Church v. Walrath, 27 Mich. 232; Cook V. Finch, 19 Minn. 407; Morris v. McCoy, 7 Nev. 399; Dullaghen V. Fitch, 42 Wis. 679; Lyman v. Babcock, 40 Wis. 503; Savannah R. R. V. Callahan, 56 Ga. 331; Shreve v. Brereton, 51 Pa. St. 175, 180; Niver V. Rossman, 18 Barb. 60 ; Jackson v. Baker, 2 Edw. Ch. 471 ; Cheddick v. Marsh, 21 N. J. L. 363; Whitfield v. Levy, 35 N. J. L. 149; Berry v. Wisdom, 3 Ohio St. 244; Basye v. Ambrose, 28 Mo. 39; Long v. Towl, 42 Mo. 548, 97 Am. Dec. 355. In the leading case upon this rule (Kemble v. Farren, 6 Bing. 141), the defendant had agreed to act as principal comedian at the plaintiff's theater for four seasons, conforming in all things to the rules of the theater. The plaintiff was to pay the defendant three pounds every night the theater was open, with other tenns. The agreement contained a clause that if either of the parties should neglect or refuse to fulfill the to make such deposit, and providing Willson v. Love, [1896] 1 Q. B. 626 that if the successful bidder shall (establishing the rule in its first enter into contract with bond, with- form) ; East Moline Plow Co. v. out delay, his deposit shall be re- Weir Plow Co., 93 Fed. 250; Smith turned, when, without fault on his v. Newell, 37 Fla. 147, 20 South, part, such successful bidder to 249; Monmouth Park Ass'n v. War- whom the contract is awarded is un- ren, 55 N. J. L. 598, 27 Atl. 932; able to procure a surety on his Nash v. Hermosilla, 9 Cal. 584, 70 bond, and, for this reason, the con- Am. Dec. 676; Iroquois Furnace Co. tract is subsequently awarded by v. Wilkin Mfg. Co., 181 111. 582, 54 the city to another bidder for a N. E. 987; Carter v. Strom, 41 Minn, much smaller sum than the former 522, 43 N. W. 394; City of Madison bid. In such case the deposit must v. American Sanitary Engineering be regarded as a penalty and not as Co. (Wis.), 95 N. W. 1097; Mansur liquidated damages: Willson v. & Tebbetts Impl. Co. v. Tissier Mayor, 83 Md. 203, 55 Am. St. Rep. Arms & Hdw. Co., 136 Ala. 597, 33 339, 34 Atl. 774. South. 818; Krutz v. Eobbins, 12 § 443, (b) Quoted in Everett Land Wash. 7, 50 Am. St. Rep. 871, 28 Co. V. Maney, 16 Wash. 552, 48 Pac. L. R. A. 676, 40 Pac. 415; Hooper v. 243. The text is cited in Filers Savannah, etc., K. E. Co., 69 Ala. Music House v. Oriental Co., 69 529; Gibbs v. Cooper, 86 N. J. L. Wash. 618, 125 Pac. 1023. See 226, 90 Atl. 1115; Gougar v. Buffalo 843 CONCERNING PENALTIES AND FORFEITURES. §444 § 444. Fourth. Whetlicr an agreement provides for the performance or non-performance of one single act, or of several distinct and separate acts, if the stipulation to pay a certain sum of money upon a default is so framed, is of said agreement, or any part thereof, or any stipulation therein contained, such party should pay to the other the sum of one thousand pounds, to which sum it was thereby agreed that the damages sustained by such omission should amount, and which sum was thereby declared by the par- ties to be liquidated and ascertained damages, and not a penalty or penal sum, or in the nature thereof. The breach alleged was that defendant refused to act during the second season. The court held that the sum of one thousand pounds must be taken to be a penalty, as it was not limited to those breaches which were of an uncertain nature and amount. The mere fact, however, that an agreement contains two or more provisions differing in kind and importance does not of itself necessarily bring it within the operation of this rule. If the various acts stipulated to be done are but minor parts of one single whole, — steps in the accomplish- ment of one single end, — so that the contract is in reality one, then it may properly come under the operation of the second rule as given in the text. See the cases illustrating this position, ante, in the note under Specialty Co., 26 Colo. App. 8, 141 Pac. 511; Greenblatt v. McCall & Co., 67 Fla. 165, 64 Soutli. 748; Mayor etc. of Brunswick v. Aetna Indemnity Co., 4 Ga. App. 722, 62 S. E. 475; Chicago, B. & Q. R. Co. V. Dockery, 195 Fed. 221, 115 C. C. A. 173; Boulware v. Crolin, 122 Mo. App. 571, 99 S. W. 796; City of Summit v. Morris Co. Traction Co., 85 N. J. L. 193, L. R. A. 1915E, 385, 88 Atl. 1048; Raymond v. Edel- brock, 15 N. D. 231, 107 N. W. 194; Sanders v. McKim, 138 Iowa, 122, 115 N. W. 917; Elzey v. City of Winterset, 172 Iowa, 643, 154 N. W. 901; Western Macaroni Mfg. Co. v. Fiore, 47 Utah, 108, 151 Pac. 984. In City of El Reno v. Cullinane, 4 Okl. 457, 46 Pac. 510, a bond for $1,000 was given with two condi- tions — one that certain work be commenced by a certain day, the other that the work be completed by a certain day. The court held the provision to be a penalty, say- ing: "These conditions seem very unequal. It is difficult to see how more than nominal damages could result from a breach of the former, while a breach of the latter might, under certain circumstances, result in very heavy damages. In case the former condition alone had been broken, and the other complied with by a completion of the work in the prescribed time, it would be un- conscionable to allow $1,000 as liquidated damages; and this is a powerful argument in support of the presumption that the parties did not intend the sum named as liquidated damages." In Keck v. Bieber, 148 Pa. St. 645, 33 Am. St. Rep. 846, 24 Atl. 170, there were covenants to indemnify plaintiff, to pay a royalty, to fill up certain holes, to use a certain road, etc. § 444 EQUITY JURISPRUDENCE. 844 such a nature and effect that it necessarily renders the defaulting party liable in the same amount at all events, both when his failure to perform is complete, and when it is only partial, the sum must be regarded as a penalty, and § 442. A series of decisions by the New York court of last resort deny the correctness of the rule in the form as given in the text and as adopted by the great majority of cases; and insist that the following is its true reading, as derived from the early authorities, viz. : Where a party binds himself to do several things of different degrees of importance, a certain sum of money made payable upon the non-performance of either or any is necessarily a penalty only when one of these several things agreed to he done is the payment of a smto of money. Thus in Cotheal v. Talmage, 9 N. Y. 551, 61 Am. Dec. 716, the facts of which are briefly stated in a previous note, Ruggles, J., after quoting the rule in its usual form, and as given in the text, said: "This doctrine, in the cases in which it is as- serted, is traced to the cases of Astley v. Weldon, 2 Bos. & P. 346, and Kemble v. Farren, 6 Bing. 141, but I do not understand either of these cases as establishing any such rule. The principle to be deducted from them is, that where a party agrees to do several things, one of which is to pay a sum of money, and in case of a failure to perfoi-m any or either of the stipulations, agrees to pay a larger sum as liquidated damages, the larger sum is to be regarded in the nature of a penalty; and being a penalty in regard to one of the stipulations to be performed, is a penalty as to all." To the same effect are Clement v. Cash, 21 N. Y. 253, 259; Bag-ley v. Peddie, 16 N. Y. 470, 69 Am. Dec. 713.« One amount was stipulated for in Floding, 137 Ga. 531, 73 S. E. 729, case of breach. The provision was the agreement was (1) to give ac- held to be a penalty. In Wilhelm ceptable security on note in ten v. Eaves, 21 Or. 194, 14 L. R. A. days; (2) before May 1st to give a 297, 27 Pac. 1053, the plaintiff was mortgage on real property as addi- made manager of defendant's mar- tional security; (3) to pay fee for ket. There were stipulations on recording. A failure of either defendant's part as to amount of would be a breach of the bond. It compensation, as to lease of a res- was held that the provision was taurant, etc., and on plaintiff's part for a penalty. See, also, Myers v. as to keeping the market clean, Ealston, 57 Wash. 47, 106 Pac. 474. open during certain hours, and re- § 443, (c) In Wallis v. Smith, fraining from incurring certain L. R. 21 Ch. Div. 243, the English debts, etc. The contract provided cases were reviewed by Jessel, for $200 damages to secure per- M. E., and the first form of the rule formance of "all and every" of the as stated in the text was rejected, covenants. The text was cited as as supported by dicta only. The authority for holding the provision rule of Cotheal v. Talmage was ad- to be a penalty. In Floding v. mitted, and it was also admitted, but 845 CONCERNING PENALTIES AND FORFEITURES. 444 not as liquidated damages.^ This rule plainly rests upon the same grounds as the third, and may be considered a particular application thereof. ^ ^ §444, 1 Jemmison v. Gray, 29 Iowa, 537; Lee v. Overstreet, 44 Ga. 507; Hamaker v. Schroers, 49 Mo. 40G; Taylor v. The Marcella, 1 Woods, 302; Lyman v. Babcock, 40 Wis. 503; Dallaghen v. Fitch, 42 Wis. 679; Ex parte Pollard, 17 Bank. Reg. 228; Savannah R. R. v. Callaghan, 56 Ga. 331; Shreve v. Brereton, 51 Pa. St. 175; Curry v. Larer, 7 Pa. St. 470, 49 Am. Dec. 486; Perkins v. Lyman, 11 Mass. 76, 6 Am. Dec. 158; Lampman v. Cochran, 16 N. Y. 269, 277. Li Jemmison v. Gray, 29 Iowa, 537, the contract was to deliver sixty thousand railroad ties, to be paid for as delivered, but ten per cent of the monthly estimates were to be not decided, that the stipulated sum might be regarded as a penalty when one or more of the breaches provided for was of trifling im- portance. But in the recent case of Willson V. Love, [1896] 1 Q. B. 626, these observations of Jessel, M. R., were expressly overruled, the rule in the first form stated by the author was adopted and made the basis of the decision of the court, and the effect of Wallis v. Smith was lim- ited to its facts, A'iz., to cases not of penalty, but of the forfeiture of a deposit. The rule may, therefore, be regarded as settled, so far as the English cases are concerned. In the recent case in the House of Lords, Dunlop Pneumatic Tyre Co., Ltd., v. New Garage & Motor Co., Ltd., [1915] A. C. 79, 87, the rule was laid down in the following words: "There is a presumption (but no more) that it is a penalty when 'a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage' (Lord Watson in Lord Elphinstone v. Monkland Iron & Coal Co., 11 App. Cas. 332)." This is explained (page 89) as meaning, "If you can clearly see that the loss on one particular breach could never amount to the stipulated sum, then you may come to the conclusion that the sum is penalty. But further than this it does not go." The presumption, however, is not conclusive. In this case the damage was the same in kind for every possible breach, and was incapable of being precisely ascertained, and the stipulated sum was a fair pre-estimate of the probable damage and not uncon- scionable. The case, therefore, falls within the rule of § 445, note 2; it appears to confirm the rules on the subject substantially in the form in which they are stated by the author. § 444, (a) Quoted in Heatwole v. Gorrell, 35 Kan. 692, 12 Pac. 135; Zenor v. Pryor, 56 Ind. App. 222, 106 N. E. 746; City National Bank V. Kelly (Okl.), 151 Pae. 1172; Bell V. Seranton Coal Mines, 59 Wash. 659, 110 Pac. 628; cited in Gay Mfg. Co. V. Camp, 65 Fed. 794, 13 C. C. A. 137, 25 U. S. App. 134; Eilers Music House V. Oriental Co., 69 Wash. 618, 125 Pac. 1023. §444, (b) Thus, in Johnson v. Cook, 24 Wash. 274, 64 Pac. 729, a certain sum was stipulated for in § 445 EQUITY JURISPRUDENCE. 846 § 445. Fifth. Finally, altliough an agreement may con- tain two or more provisions for the doing or not doing dif- ferent acts, still, where the stipulation to pay a certain sum retained by the buyer as a security for the final completion. This ten per cent was held to be a penalty, and not liquidated damages. In Lee V. Overstreet, 44 Ga. 507, defendant contracted to deliver all the turpen- tine made on his plantation iii lots of forty barrels each, to be paid for on delivery, at the rate of five dollars per barrel, and either party failing: was to forfeit one thousand dollars. This sum was held to be a penalty. In Shreve v. Brereton, 51 Pa. St. 175, the contract was similar, to deliver one thousand barrels of petroleum, to be paid for in a specified manner, and the parties bound themselves in the sum of ten thousand dollars, not as a penalty, but as liquidated damages. The court said that the intention could not have been for the vendor to be liable for that large sum when he failed to deliver only one barrel, as much as when he failed to deliver the whole one thousand barrels, and the sum must, therefore, have been meant as a penalty. In Hamaker v. Schroers, 49 Mo. 406, defendant agreed to sell and deliver one hundred grain-drills of a speci- fied kind in a certain time, or be liable to pay sixteen hundred dollars. The court held that to regard this sum as liquidated damages would sub- ject the defendant to the same liability upon failing to deliver only one of the machines as upon failing to deliver them all, and the sura must be treated as a penalty. It should be observed that this rule must always be taken into account in every case where it is sought to apply the second rule of the text, for its effect is necessarily to modify the operation of that rule. In other words, there are many agreements which would other- wise come under the second rule because there is no means of accurately fixing the legal measure of damages resulting from a violation, but which are prevented from so doing, since the liability to pay a certain sum is made to be the same, whether the failure to perform is complete or only partial. case defendant shoiild not complete The provision was held a penalty. a house and remove all liens from So, in a contract to furnish about the property. The case was held to $13,000 worth of ornamental terra come within the rule stated in the cotta for building, with a provision text. See Wibaux v. Grinnell, etc., of fifty dollars a day liquidated Co., 9 Mont. 1.'54, 22 Pac. 492. In damages for delay. This was not McCall V. Deuchler, 174 Fed. 133, 98 a contract for building, but to C. C. A. 169, a contract for the sale furnish numerous articles. The pro- and delivery of patterns, running vision was held to be for a penalty: over a period of five years, provided Northwestern Terra Cotta Co. v. that a breach should entitle the Caldwell, 234 Fed. 491, 148 C. C. A. other party to recover the amount 257. to be paid during the entire period. 847 CONCERNING PENALTIES AND FORFEITURES. § 445 of money upon a default attaches to only one of these pro- visions, which is of such a nature that there is no certain means of ascertaining the amount of damages resulting from its violation,^ ^ or where all of the provisions are of such a nature that the damages occasioned by their breach cannot be measured, and a certain sum is made payable upon a default generally in any of them,^ ^ — in each of these cases, the sum so agreed to be paid may be considered as liquidated damage, provided, of course, that the language of the stipulation does not bring it within the limitations of the preceding fourth rule. It is evident that this prop- osition, in both its branches, is identical in substance with the second rule, heretofore given, and rests upon exactly the same grounds. The foregoing rules may be considered as settled by the strong preponderance of judicial authority, and they serve to explain large and important classes of cases. There are undoubtedly numerous instances which cannot be easily referred to either of these rules ; and this must be so almost as a matter of necessity. Since agree- ments are of infinite variety in their objects and in their provisions, and since the question of penalty or liquidated § 445, 1 Green v. Price, 13 Mees. & W. 695, 16 Mees. & W. 354 ; Raw- linson v. Clarke, 14 Mees. & W. 187; Shute v. Hamilton, 3 Daly, 462; Mott V. Mott, 11 Barb. 134 ; Dakin v. Williams, 17 Wend. 447, 22 Wend. 201 ; Pearson v. Williams, 24 Wend. 244, 26 Wend. 630 ; Mead v. Wheeler, 13 N. H. 301; Hodges v. King, 7 Met. 583; Lange v. Week, 2 Ohio St. 519 ; Watts v. Sheppard, 2 Ala. 425, 445. § 445, 2 Atkyns v. Kinnier, 4 Ex. 776-783 ; Galsworthy v. Strutt, 1 Ex. 659 ; Hall v. Crowley, 5 Allen, 304, 81 Am. Dec. 745 ; Chase v. Allen, 13 Gray, 42; Young v. White, 5 Watts, 460; Powell v. Burroughs, 54 Pa. St. 329, 336; O'Donnell v. Rosenberg, 14 Abb. Pr., N. S., 59; Leary V. Laflin, 101 Mass. 334; Dwinel v. Brown, 54 Me. 458; Clement v. Cash, 21 N. Y. 253 ; Cotheal v. Talmage, 9 N. Y. 551, 61 Am. Dec. 710 ; Bagley V. Peddie, 16 N. Y. 470, 69 Am. Dec. 713. §445, (a) Emery v. Boyle, 200 103 N. W. 700. This rule was es- Pa. St. 249, 49 Atl. 779 (dictum). tablished in the important case of § 445, (b) See Wallis v. Smith, L. K. Dunlop Pneumatic Tyre Co., Ltd., v. 21 Ch. Div. 243; Springwell's Tp. v. New Garage & Motor Co., I^td., Detroit, P. & N. Ry., 140 Mich. 277, [1915] A. C. (H. of L.) 79. §445 EQUITY JURISPRUDENCE. 84b damages is always one of intention, depending npon the terms and circumstances of each particular contract, there must be many agreements which cannot be brought within the scope of any specific rule, and with which a court can only deal by applying the most general canon of interpre- tation. ^ '^ § 445, 3 In the following cases, not already cited in the former notes, the sum was held to be a penalty: Colwell v. Lawrence, 38 N. Y. 71; Green v. Tweed, 13 Abb. Pr., N. S., 427 (excessive amount) ; Staples v. Parker, 41 Barb. 648; Wallis v. Carpenter, 13 Allen, 19; Long v. Towl, 42 Mo. 545, 97 Am. Dec. 355 ; Ranger v. Great Western R'y Co., 5 H. L. Cas. 72. And in the following cases the sum was held to be liquidated damages: Leggett v. Mut. Life Ins. Co., 50 Barb. 61G; Gobble v. Linder, 76 111. 157; Ryan v. Martin, 16 Wis. 57; Hise v. Foster, 17 Iowa, 23; Morse V. Rathburn, 42 Mo. 594, 97 Am. Dec. 359; Streeter v. Rush, 25 Cal. 67; Lightner v. Menzel, 35 Cal. 452. §445, (c) The five rules stated in §§ 441-445 of the text are quoted as proper statements of the established doctrines in Johnson v. Cook, 24 Wash. 274, 64 Pac. 729, and cited in Colonna Dry Dock Co. v. Colonna, 108 Va. 230, 61 S. E. 770. Conditional Sale Contracts. — An excellent discussion of the nature of provisions for forfeiture of amounts paid under conditional sale con- tracts is contained in Eilers Music House V. Oriental Co., 69 Wash. 618, 125 Pac. 1023. The court said: "The vendee's failure to pay for the instrument, removal, or attempt to remove or sell, the instrument are plainly of equal importance, since they lead to the same result. They would each constitute such a breach of the contract as to make a re- sumption of possession by the ven- dor absolutely necessary to his pro- tection. Whatever breach forces that result, the damages consequent thereon are necessarily the same; hence the same sum, as liquidated damages, if appropriate to either. is appropriate to each of such breaches. "It is next argued that, inasmuch as the sum to be applied as liqui- dated damages constantly increases as the performance of the contract continues, the damages paid would be greater when the failure to per- form was only partial than when the failure was complete. Again, it must be conceded on sound author- ity that, where the stipulated sum to be paid is the same or larger where the failure to perform is only partial, as where the failure is com- plete, the stipulation will usually be construed as a penalty. (Citing § 444 of the text.) This rule, how- ever, cannot be applied blindly and without reference to the nature of the contract, or without regard to the plainly expressed intention of the parties. (Quoting § 445 of the text.) ... In the case here it is manifest that the damage must be the greater the longer the vendor is kept out of possession, and the longer the vendee has the use of the 849 CONCERNING PENALTIES AND FOEFEITURES, §446 § 446. No Election to Pay the Penalty and not to Per- form. — With respect to the effect of a penalty upon the equitable rights of the parties, while a court of equity will relieve the party who has thus bound himself against a pen- instrument. The longer the vendee keeps up his payments and retains the possession of the property, the greater will be the deterioration of the property, and the longer will the vendor be deprived of its use and disposition by sale or rental. It seems clear that in such a case the fact that the sum fixed as liqui- dated damages increases as the actual damage increases is no ground for declaring the stipulation one for a penalty, rather than for liquidated damages." Special Rules. — If a stipulation is held to be for liquidated damages, the plaintiff need not prove that he lias suffered any damage. Sanford V. First Nat. Bank, 94 Iowa, 680, 63 N. W. 459; Little v. Banks, 85 N. Y. 259. Nor can the defendant show that the actual damage was less than the stipulated amount, it being conceded by the court that the provision is for liquidated dam- ages. May v. Crawford, 150 Mo. 504, 51 S. W. 693. And of course in such a case the plaintiff cannot re- cover more than the stipulated amount. Morrison v. Ashburn (Tex. Civ. App.), 21 S. W. 993; Darrow v. Cornell, 12 App. Div. 604, 42 N. Y. Supp. 1081; Smith v. Vail, 53 App. Div. 028. 65 N. Y. Supp. 834; Mayor otc. of Brunswick v. Aetna Indem- nity Co., 4 Ga. App. 722, 62 S. E. 475. If the amount named in the contract be regarded as liquidated damages, it forms the measure of damages, and the jurj' are confined to it. Hennessy v. Mtfzger, 132 111. 505, 43 Am. St. Rep. 267, 38 N. E. 1—54 1058. It has been intimated that where the sum named as liquidated damages is shown to bear no reason- able proportion to the actual, only actual damages can be recovered. Collier v. Betterton (Tex.), 29 S. W. 468. In such a case, however, the provision is really a penalty, as we have seen before. If it does not appear unreasonable, the stipulated sum will be held to be the measure of damage. Halff v. O'Connor, 14 Tex. Civ. App. 191, 37 S. W. 238. The rule is stated by the supreme court of Nebraska, in the syllabus to Camp V. Pollock, 45 Neb. 771, 64 N. W. 231, as follows: "Where dam- ages are liquidated, and there is no conflict of evidence as to their amount, the court may direct the jury as to the precise amount, and not leave it to the assessment of the jury." Article 1934 of the Eevised Civil Code of Louisiana provides: "When the parties by their contract have determined the sum that shall be paid as damages for its breach, the creditor must recover that sum, but is not entitled to more. But when the contract is executed in part, the damages agreed on by the parties may be reduced to the loss really suffered and the gain of which the party has been deprived, unless there has been an express agreement that the sum fixed by the contract shall be paid even on a partial breach of the agreement." But in cases where this statute ap- plies, the defendant must affirma- tively establish, not only his right to a reduction, but the extent of the § 446 EQUITY JURISPEUDENCB. 85( ally, or will restrain its enforcement against liim at law, it will not, on the other hand, permit such party to resist a specific performance of the contract by electing to pay the penalty.* Where a person has agreed to do a certain act, or to refrain from doing a certain act, and has added a penalty for the purpose of securing a performance, a court of equity will, if the contract is otherwise one which calls for its interposition, compel the party to specifically perform, or restrain him from committing the act, as the case may be, notwithstanding the penalty. If the sum stipulated to be paid is really a penalty, the party will never be allowed to pay it, and then treat such payment as a sufficient ground for refusing to perform his undertaking.! ^ Where, however, the creditor party in such a contract has elected to proceed at law, and has recovered a judgment for § 446, 1 French v. Macale, 2 Dru. & War. 274 ; Howard v. Hopkins, 2 Atk. 371; Cliilliner v. Chilliner, 2 Ves. 528; City of London v. Pugh, 4 Brown Pari. C, Tomlins's ed., 395; Hardy v. Martin, 1 Cox, 26; Logan V. Wienholt, 1 Clark & P. 611, 7 Bligh, N. S., 1, 49, 50; Fox v. Scard, 33 Beav. 327; Hobson v. Trevor, 2 P. Wms. 191; Kennedy v. Lee, 3 Mer. 441, 450; Prebble v. Bogburst, 1 Swanst. 309; Jeudwine v. Agate, 3 Sim. 120, 141; Butler v. Powis, 2 Coll. C. C. 156; Jones v. Heavens, L. R. 2 Ch. Div. 636; In re Dagenham Dock Co., L. R. 8 Cb. 1022; Ewins v. Gordon, 49 N. H. 444; Gillis v. Hall, 7 Pbila. 422, 2 Brewst. 342; Dooley reduction. Goldman v. Goldman, 51 Amanda Consol. G. M. Co. v. Peo- La. Ann. 761, 25 South. 555. In pie's M. & M. Co., 28 Colo. 251, 64 Elston v. Roop, 133 Ala. 331, 32 Pac. 218; Hickey v. Brinkley, 88 South. 129, it was held that a court Neb. 356, 129 N. W. 553; Buck- is authorized to predicate its find- hout v. Witever, 157 Mich. 406, 23 ing upon the stipulated amount, L, E. A. (N. S.) 506, 122 N. W. 184. even though it be a penalty, in the (A agrees not to compete in busi- absence of other evidence. ness, and if he does so, to forfeit a §446, (a) The text is quoted in certain sum per annum; said to be Cavaiiaugh v. Conway, 36 R. I. 571, a penalty, and does not prevent 90 All. lOSO. specific performance) ; Hedrick v. §446, (b) This paragraph is cited Firke. 169 Mich. 549, 135 N. W. 319; in Jordan v. Johnson, 50 Ind. App. Mellon v. Oliver's Estate, 256 Pa. 213, 98 N. E. 143; Moss & Raley v. 209, 100 Atl. 796 (adjoining owners Wren (Tex. Civ. App.), 118 S. W. bound themselves in penal sum to 149. See, also. National Prov. Bank keep open an alleyway between V. Marshall, L. B. 40 Ch. Div. 112; them). 851 CONCERNING PENALTIES AND FORFEITURES. § 447 damages, he cannot afterwards come into a court of equity, and obtain a specific performance ; he cannot have the rem- edy given by both courts. ^ § 447. Otherwise With Liquidated Damages. — Where, however, the parties to an agreement have added a pro- vision for the payment, in case of a breach, of a certain sum which is truly liquidated damages, and not a penalty, — in other words, where the contract stipulates for one of two things in the alternative, the doing of certain acts, or the payment of a certain amount of money in lieu thereof, — equity will not interfere to decree a specific performance of the first alternative, but will leave the injured party to his remedy of damages at law.i^ This is one reason V. Watson, 1 Gray, 414; Hooker v. Pynchon, 8 Gray, 550; Fisher v. Shaw, 42 Me. 32; Hull v. Sturdivant, 46 Me. 34; Dailey v. Lichfield, 10 Mich. 29 ; Whitney v. Stone, 23 Cal. 275 ; Dike v. Green, 4 R. I. 288, 295. In French v. Macale, 2 Dru. & War. 274, Lord St. Leonards clearly stated this doctrine: "The general rule of equity is, that if a thing be agreed upon to be done, though there is a penalty annexed to secure its perform- ance, yet the very thing itself must be done. If a man, for instance, agrees to settle an estate, and executes his bond for six hundred pounds as a security for the perfonnance of his contract, he will not be allowed to pay the forfeit for his bond, and avoid his agreement, but he will be compelled to settle the estate in specific performance of his agi-eement. So if a man covenants to abstain from doing a certain act, and agrees that if he do it he will pay a sum of money, it would seem that he will be compelled to abstain from doing that act; and just as in the converse case, he cannot elect to break his agreement by paying for his violation of the contract." In Dooley v. Watson, 1 Gray, 414, the doctrine was laid down in equally plain terms by Shaw, C. J. : "Courts of equity have long since overruled the doctrine that a bond for the payment of money, conditioned to be void on the conveyance of land, is to be treated as a mere agreement to pay money. When the penalty appears to be intended merely as a security for the perfonnance of the agreement, the principal object of the parties will be carried out." § 446, 2 Fox V. Scard, 33 Beav. 327, per Sir J. Romilly, M. R. § 447, 1 French v. Macale, 2 Dru. & War. 269 ; Howard v. Hopkins, 2 Atk. 371; Jones v. Green, 3 Younge & J. 298; Coles v. Sims, 5 De Gex, §447, (a) Quoted in Amanda also, in Koch v. Streuter, 218 111. Consol. G. M. Co. v. People's M. & 546, 2 L. R. A. (N. S.) 210, 75 N. E. M. Co., 28 Colo. 251, 64 Pac. 218; 1049; Cavanaugh v. Conway, 36 R. I. §448 EQUITY JURISPRUDENCE. 852 among many why courts of equity incline strongly to con- strue such stipulations as providing for a penalty rather than for liquidated damages. § 448. Forfeiture. — This subject includes two entirely distinct questions, namely: When will equity interfere to aid the defaulting party, and to relieve against a forfeiture by setting it aside, or by allowing him to go on and perform M. & G. 1; Sainter v. Ferguson, 1 Macn. & G. 286; Rolfe v. Peterson, 2 Brown Pari. C. 436; Woodward v. Gyles, 2 Vern. 119; Magrane v. Arch- bold, 1 Dow, 107; Ranger v. Great Western R'y Co., 5 H. L. Gas. 73; Shiell V. McNitt, 9 Paige, 101; St. Mary's Church v. Stockton, 9 N. J. Eq. 520; Bodine v. Glading, 21 Pa. St. 50, 59 Am. Dec. 749; Holdeman v. Jennings, 14 Ark. 329; Skinner v. Dayton, 2 Johns. Ch. 526; City Bank of Baltimore v. Smith, 3 Gill & J. 265; Jaquith v. Hudson, 5 Mich. 123; Hahn v. Concordia Soc, 42 Md. 460. 579, 90 Atl. 1080. This paragraph is cited in Moss & Raley v. Wren (Tex. Civ. App.), 118 S. W. 149. It should be noticed that the au- thor's statement confines the cases of non-intervention on the part of equity to those where the contract stipulates for one of two things in the alternative,' and leaves untouched cases where the stipulation gives no such option, but merely specifies the damages that shall be recoverable if the contract is broken, and these damages would be construed by a court of law as liquidated damages and not as a penalty merely. By the great weight of authority, equity makes no distinction be- tween a provision for a penalty and a provision for liquidated damages, so far as concerns the right to the specific performance of the contract containing such provision. See Ly- man V. Gedney, 114 111. 388, 55 Am. Rep. 871, 29 N. E. 282, where the court said: "The mere fact that a contract stipulates for the payment of liquidated damages in case of failure to perform does not prevent a court of equity from decreeing specific performance. It is only where the contract stipulates for one of two things in the alternative — the performance of certain acts, or the payment of a certain amount of money in lieu thereof — that equity will not decree a specific per- formance of the first alternative." See, also, Augusta Steam Laundry Co. V. Debow, 98 Me. 496, 57 Atl. 845. In Phoenix Ins. Co. v. Conti- nental Ins. Co., 87 N. Y. 400, the court said: "If the primary inten- tion was that the very thing cov- enanted should be done, then the sum named is in the nature of a penalty to secure the performance of the principal thing; and it can make no difference in the construc- tion of the covenant whether dam- ages for non-performance are left to be ascertained by an issue quan- tum damnificatus or the parties themselves conclusively settle the amount." In this case a party agreed not to build on certain prem- 853 CONCERNING PENALTIES AND FORFEITURES. §449 as though it had not occurred, or by restraining the other party from enforcing it? and when will equity interfere at the suit of the creditor party, and by its decree actively enforce and carry into effect the forfeiture against the one in default? The former of these questions will be exam- ined first in order. § 449. When Equity Will Relieve.^ — It has been repeat- edly assumed and asserted by numerous judicial dicta, and the statement seems to have been accepted by many text- writers as correct, that a court of equity is governed by the same doctrine with respect to relief against forfeitures and against penalties. This is true, perhaps, when considered simply as the announcement of a rule in its most general ises, and "for a violation of the covenant" agreed to pay "the sum of $1,500 liquidated damages." See, also, Mikelaiczak v. Kruppa, 25-i 111. 209, 98 N. E. 257; Heinz v. Eoberts, 135 Iowa, 748, 110 N. W. 1034; Hed- rick V. Firke, 169 Mich. 549, 135 N. W. 319; Wills v. Forester, 140 Mo. App. 321, 124 S. W. 1090 (in- junction against breach of contract not to compete in business) ; Ameri- can Ice Co. v. Lynch, 74 N. J. Eq. 298, 70 Atl. 138 (same); Diamond Match Co. V. Eoeber, 106 N. Y. 473, €0 Am. Kep. 464, 13 N. E. 419, 1 Ames Cases on Equity, 123, and note; Bradshaw v. Millikin (N. C), 92 S. E. 161 (same); Moss & Ealey V. Wren, 102 Tex. 567, 113 S. W. 739, 120 S. W. 847 (Tex. Civ, App.), 118 S. W. 149 (liquidated damages for breach of contract for sale of land, consisting of forfeiture of the amount of price paid) ; Hudman v. Henderson, 58 Tex. Civ. App. 358, 124 S. W. 186 .(land contract). See, however, Bartholomae & Roesing Brewing & M. Co. v. Modzelewski, .269 111. 539, 109 N. E. 1058, ignor- ing many earlier Illinois decisions. In all cases where a party relies on the payment of liquidated damages as a discharge, it must clearly ap- pear that they were to be paid and received absolutely in lieu of per- formance: Higbie v. Farr, 28 Minn. 439, 10 N. W. 592. In California a contract otherwise proper to be spe- cifically enforced may be thus en- forced though the damages are liquidated and the party in default is willing to pay the same: Cal. Civil Code, § 3389. In Solomon v. Diefenthal, 46 La. Ann. 897, 15 South. 183, it was held that a plain- tiff cannot recover liquidated dam- ages and have injunctive relief as well. Instances of contracts in the alternative, where specific perform- ance was refused: Davis v. Isen- stein, 257 111. 260, 45 L. R. A. (N. S.) 52, 100 N. E. 940 (contract provides that on payment of $1,500 fixed as "liquidated damages," the contract is to become null and void) ; Miller v. Chicago Portrait Co. (Tex. Civ. App.), 195 S. W. 619. § 449, (a) This section is cited in Manhattan Life Ins. Co. v. Wright (C. C. A.), 126 Fed. 82. § 450 EQUITY JUEISPRUDENCE. 854 form; but in its practical application it is subject to such important exceptions and limitation that there is, in fact, a marked distinction between forfeitures and penalties, in the view with which they are respectively regarded and dealt with by equity. We have seen that wherever a cer- tain sum is stipulated to be paid as security for the per- formance of some act which is capable of pecuniary meas- urement, so that the compensation in the nature of damages for a non-performance can be ascertained with reasonable exactness, the certain sum is taken to be a penalty, and that courts strongly lean in favor of a construction which shall make it a penalty, so that it may be disregarded. This is not universally true, is not the practical test in case of for- feitures, although, perhaps, the court may use the same general formula of words as applicable to both instances. § 450. Ground and Extent of Such Relief. — It is well set- tled that where the agreement secured is simply one for the payment of money, a forfeiture either of land, chattels, securities, or money, incurred by its non-performance, will be set aside on behalf of the defaulting party, or relieved against in any other manner made necessary by the circum- stances of the case, on payment of the debt, interest, and costs, if any have accrued, unless by his inequitable con- duct he has debarred himself from the remedial right, or unless the remedy is prohibited, under the special circum- stances of the case, by some other controlling doctrine of equity.^ ^ Where the stipulation, however, is intended to § 450, 1 Hill V. Barclay, 16 Ves. 403, 405, 18 Ves. 58, 60 ; Reynolds v. Pitt, 19 Ves. 140; Wadman v. Calcraft, 10 Ves. 68, 69; Bowser v. Colby, 1 Hare, 128; Gregory v. Wilson, 9 Hare, 683; Bracebridge v. Buckley, 2 Price, 200 ; Skinner v. Dayton, 2 Jobns. Ch. 535, 17 Johns. 339 ; Hagar V. Buck, 44 Vt. 285, 8 Am. Rep. 368; Hancock v. Carlton, 6 Gray, 39; Carpenter v. Westcott, 4 R. I. 225; Thompson v. Whipple, 5 R. I. 144; §450, (a) Quoted in Tibbetts v. Co. v. Bishop, 86 Ark. 489. 126 Am. Gate, 66 N. H. 550, 22 Atl. 559; St. Rep. 1098, 112 S. W. 189; Rad- Franklin v. Long, 191 Ala. 310, 68 datz v. Florence Inv. Co., 147 Wis. South. 149; Cherokee Construction 636, 133 N. W. 1100; cited generally 855 CONCERNING PENALTIES AND FORFEITURES. § 450 secure the performance or non-performance of some act in pais, it is impossible to lay down any such general rule with which all the classes of decisions shall harmonize. It is cer- tain that if the act is of such a nature that its value cannot be pecuniarily measured, if the compensation for a de- fault cannot be ascertained and fixed with reasonable pre- cision, relief against the forfeiture incurred by its non- performance will not, under ordinary circumstances, be given.2 b The affirmative of this proposition cannot be stated as a rule with the same generality. It has, indeed, been said that equity would relieve against forfeitures Walker v. Wheeler, 2 Conn. 229 ; Hart v. Homiler, 20 Pa. St. 348 ; Bright V. Rowland, 3 How. (Miss.) 398; Moore v. Platte, 8 Mo. 467; Walling v. Aiken, 3 McMull. Eq. 1; Royan v. Walker, 1 Wis. 527; Giles v. Austin, 38 N. Y. Sup. Ct. 215, 62 N. Y. 486; Orr.v. Zimmerman, 63 Mo. 72; Palmer v. Ford, 70 111. 369. § 450, 2 Gregory v. Wilson, 9 Hare, 683 ; Hills v. Rowland, 4 De Gex, M. & G. 430; Croft v. Goldsmid, 24 Beav. 312; Nokes v. Gibbon, 3 Drew. 618; White v. Warner, 2 Mer. 459; Skinner v. Dayton, 2 Johns. Ch. 526, 535; Baxter v. Lansing, 7 Paige, 350; Drenkler v. Adams, 20 Vt. 415; Clarke v. Drake, 3 Chand. 253; Gregg v. Landis, 19 N. J. Eq. 850, 21 N. J. Eq. 494, 511; Ottawa Plank Road Co. v. Murray, 15 111. 336. in Attala Min. & Mfg. Co. v. Win- Life Ins. Co., 104 U. S. 88, it was Chester, 102 Ala. 184, 14 South. 565; held that equity will not relieve Manhattan Life Ins. Co. v. Wright against a forfeiture of a life insur- (C. C. A.), 126 Fed. 82; Dodsworth ance policy for non-payment of pre- V. Dodsworth, 254 111. 49, 98 N. E, miums. The court said: "If the 279. See Noyes v. Anderson, 124 payment of the premiums, and their N. Y. 175, 21 Am. St. Rep. 657, 26 payment on the day they fall due, N. E. 316 (citing § 450 of the text) ; are of the essence of the contract, Sunday Lake Min. Co. v. Wakefield, so is the stipulation for the release 72 Wis. 204, 39 N. W. 136; Jones v. of the company from liability in Bennet, 39 Ky. (9 Dana) 333. default of punctual payment. No "Forfeitures are sustained only compensation can be made a life in- when the parties have contracted surance company for the general therefor, and the terms of a con- want of punctuality among its pa- tract will not be extended to sus- trons." See, also, Iowa Life Ins. tain forfeitures upon other grounds Co. v. Lewis, 187 U. S. 335, 23 Sup. than those provided for in the con- Ct. 126; Knickerbocker Life Ins. tract": Bennett v. Glaspell, 15 N. D. Co. v. Dietz, 52 Md. 16; Manhattan 239, 107 N. W. 45. Life Ins. Co. v. Wright (C. C. A.), § 450, (b) In Klein v. New York 126 Fed. 82. § 450 EQUITY JURISPRUDENCE. 856 in all cases where compensation can be made; but this is clearly incorrect. It is well settled that a court of equity will not, under ordinary circumstances, set aside forfeit- ures incurred on the breach of many covenants contained in leases, or of stipulations in other agreements, although the compensation for the resulting injury could be ascertained without difficulty ;2 and on the other hand, the relief is often given, as will appear from subsequent paragraphs, where the agreement secured by the clause of forfeiture is not one expressly and simply for the payment of money. The fol- lowing proposition seems to be a conclusion fairly drawn from all the decisions upon the subject, and to be an accu- rate and comprehensive statement of the general doctrine as settled by them, namely: In the absence of special cir- cumstances giving the defaulting party a higher remedial right, a court of equity will set aside or otherwise relieve against a forfeiture, both when it is incurred on the breach of an agreement expressly and simply for the payment of money, and also on the breach of an agreement of which the obligation, although indirectly, is yet substantially a pecuni- ary one.'* c , § 450, 3 White v. Warner, 2 Mer. 459; Eaton v. Lyon, 3 Ves. 692, 693; Hill V. Barclay, 16 Ves. 403, 405, 18 Ves. 58-64 ; Rolf e v. Harris, 2 Price, 206, note ; Bracebridge v. Buckley, 2 Price, 200 ; Green v. Bridges, 4 Sim. 96; Hills v. Rowland, 4 De Gex, M. & G. 430; Germantown, etc., R'y v. Fitler, 60 Pa. St. 131, 100 Am. Dec. 546; Dunklee v. Adams, 20 Vt. 415, 50 Am. Dec. 44. § 450, 4 This mode of formulating the doctrine is in harmony with all the decisions, although it does not go as far as some of the dicta. See the cases cited in the preceding notes. §450, (c) In Springfield & N. E. was actually completed in two years Traction Co. v. Warrick, 249 111. and three months. 470, Ann. Cas. 1912A, 187, 94 N. E. A party seeking relief from for- 933, relief was granted from for- feiture must offer to perform. This feituTe of land by a railroad com- is upon the principle that he who pany because of failure to complete ^^cks equity must do equity: Eoche A -fi.- * ^ .o.c ™>,oT, .r.^A V. Hiss, 84 N. J. Eq. 242, 93 Atl. road within two years, when road ' ^ ' 804. 857 CONCERNING PENALTIES AND FORFEITURES. §451 § 451. Forfeiture Occasioned by Accident, Fraud, Sur- prise, or Ignorance. — There are, as intimated above, special circumstances which will entitle a defaulting party to relief against a forfeiture in cases where otherwise it would not be granted. Although the agreement is not one measur- able by a pecuniary compensation, still, if the party bound by it has been prevented from an exact fulfillment, so that a forfeiture is incurred, by unavoidable accident, by fraud, by surprise, or by ignorance, not willful, a court of equity will interpose and relieve him from the forfeiture so caused, upon his making compensation, if necessary, or doing every- thing else within his power.^ ^ Also, in the same class of § 451, 1 Many of the cases under this doctrine are those of covenants in leases, but the doctrine, of course, extends to all agreements : *» Eaton V. Lyon, 3 Ves. 693, per Lord Alvanley; Hill v. Barclay, 18 Ves. 58, C2, § 451, (a) Quoted in Franklin v. Long, 191 Ala. 310, 68 South. 149; Baltimore & N. Y. R. Co. v. Bouvier, 70 N. J. Eq. 158, 62 Atl. 868. Cited with approval in Dodsworth v. Dodsworth, 254 111. 49, 98 N. E. 279 (forfeiture of land for non-payment of taxes, where delay was caused by mistake as to when taxes were due, relieved against) ; McDowell v. Blue Ridge & A. Ry. Co., 144 N. C. 721, 57 S. E. 5'20; North Jersey St. R'y Co. V. Inhabitants of Tp. of South Orange, 58 N. J. Eq. 83, 43 Atl. 53; Noyes v. Anderson, 124 N. Y. 175, 21 Am. St. Rep. 657, 26 N. E. 316. In the latter case the plaintiff agreed not to foreclose a mortgage during defendant's lifetime, pro- vided defendant should pay all taxes within thirty days from time of accrual. Defendant did not pay ene assessment in time because she did not know of it, but she event- ually paid. It was held that equity would relieve her from the forfeit- ure. In Tibbetts v. Gate, 66 N. H. 550, 22 Atl. 559, a forfeiture was provided for in case of failure to pay all taxes. The court held that relief would be awarded against a forfeiture incurred for non-payment of taxes of which the devisee was ignorant. In Lundin v. Schoeffel, 167 Mass. 465, 45 N. E. 933, there was a provision for a forfeiture of a lease in case of noise in making repairs which should disturb the performance in a 'theater. The court found that the noise made was slight, lasted only a minute, and that plaintiff did not know that a performance was going on at the time. Injunctive relief was given "on the ground of accident or mis- take." In Mactier v. Osborn, 146 Mass. 399, 4 Am. St. Rep. 323, 15 N. E. 641, a lessee agreed to keep the property insured so that the loss would be payable to the lessor. An assignee renewed the insurance, but through mistake the loss was not §451, (l») Cited to this effect in Hukill V. Myers, 36 W. Va. 639, 15 S. E. 151. § 451 EQUITY JURISPRUDENCE. 858 cases, and upon the same equitable grounds, if there has been a breach of the agreement sufficient to cause a for- feiture, and the party entitled thereto, either expressly or by his conduct, waives it or acquiesces in it, he will be pre- per Lord Eldon; Hannam v. South London Water Co., 2 Mer. Gl ; Bam- ford V. Creasey, 3 Giff. 675; Wing v. Harvey, 5 De Gex, M. & G. 265; Duke of Beaufort v. Neeld, 12 Clark & F. 248; Bridges v. Longman, 24 Beav. 27 ; Meek v. Carter, 6 Week. Rep. 852. In Hill v. Barclay, 18 Ves. 58, Lord Eldon was very strongly opposed to granting relief in ordinary cases, but he expressly says that his reasoning and conclusions do not apply to cases of accident, surprise, fraud, etc. ; as, for example, the for- feiture arising from a lessee's breach of a covenant to repair, the effect of the weather in preventing him, or if a permissive want of repair, the landlord standing by and looking on and not objecting. Wing v. Harvey, 5 De Gex, M. & G. 265, is a good illustration. A life policy contained a condition making it void if the assured went beyond Europe without a license. The assured assigned the policy and took up his residence in Canada. The assignee, on paying the annual premium to an agent of the insurance company, infomied him that the assured was residing in Canada. The agent answei'ed that this would not avoid the policy, and continued to receive the premiums without objection until the assured died. Although no license had been given, the lord justice held that the company could not insist upon the forfeiture; the assignee had been mis- led by the company's agent, and to enforce the forfeiture would be a "surprise," even if not an actual fraud. made payable to the lessor. It was grant relief from a forfeiture unless held that equity would relieve from it can be done with justice to the the forfeiture. other party: Kann v. King, 204 U. S. Equity may relieve from the for- 43, 51 L. Ed. 360, 27 Sup. Ct. 213. feiture of a mining lease for failure "There must be full performance of to drill a well within a specified the covenant as a condition of relief. time, where there has been fraud, The relief is against the forfeiture, accident or mistake, if 'relief is on the ground of surprise, not against asked within a reasonable time: the contract or from its obligation. Westerman v. Dinsmore, 68 W. Va. We do not take away either the 594, 71 S. E. 250. In general, see right to have the delinquency made Eaddatz v. Florence Inv. Co., 147 good or the power to forfeit for fu- Wis. 636, 133 N. W. 1100; McCaskill ture delinquencies. The covenants V. Union Naval Stores Co., 59 Fla. for the non-performance of which 571, 52 South. 961; E. H. Powers forfeiture has been declared must be Shoe Co. V. Odd Fellows Hall Co., performed, and that fully and 133 Mo. App. 229, 113 S. W. 253. promptly": Wheeling & E. G. R. Co. Even where accident or mistake is v. Triadelphia, 58 W. Va. 487, 4 shown, a court of equity should not L. R. A. (N. S.) 321, 52 S. E. 499. 859 CONCERNING PENALTIES AND FORFEITURES. §451 eluded from enforcing the forfeiture, and equity will aid the defaulting party by relieving against it, if necessary. ^ « For a like reason a court of equity may set aside or dis- regard a forfeiture occasioned by a failure to comply with the very letter of an agreement when it has nevertheless been substantially performed.^ d § 451, 2 In many such cases there would be no need of an appeal to equity, since the breach and forfeiture would be waived at law. Most of the decided cases have ai'isen from breaches of covenants in leases, but the rule applies as well to all other agreements : Bridges v. Longman, 24 Beav. 27; Croft v. Lumbly, 5 El. & B. 648; Hughes v. Metropolitan R'y Co., L. R. 2 H. L. 439; Wing v. Harvey, 5 De Gex, M. & G. 265; Lilly v. The Fifty Associates, 101 Mass. 432; Helme v. Philadelphia Ins. Co., 61 Pa. St. 107, 100 Am. Dec. 621; Gregg v. Landis, 19 N. J. Eq. 356, 21 N. J. Eq. 494, 507. § 451, 3 Hagar v. Buck, 44 Vt. 285, 8 Am. Rep. 368. See, also, Roche v. Hiss, 84 N. J. Eq. 242, 93 Atl. 804. That a lessee's mere forgetfulnesa of a covenant in his lease is not a mistake which can be relieved against, see Barrow v. Trustees, [189]] 1 Q. B. 417. See, also, in general, Kopper v. Dyer, 59 Vt. 477, 59 Am. Rep. 742, 12 Atl. 4; Hulett v. Fairbanks, 40 Ohio St. 233 (fraud); Travelers' Ins, Co. V. Brown (Ala.), 35 South. 463; and §§ 826, 833, post. §451, (c) The text is quoted in Priar v. Baldridge, 91 Ark. 133, 120 S. W. 989. See Robinson v. Cheney, 17 Neb. 673, 24 N. W. 378; Hurst v. Thompson, 73 Ala. 158. See, also, ante, § 439, note. In Pokegama Sugar Pine Lumber Co. v. Klamath River L. & I. Co., 96 Fed. 34, a lessor allowed the lessee to spend a large sum of money on the property after facts sufficient to constitute a for- feiture had occurred. The court lield that the forfeiture was waived. In Franklin v. Long, 191 Ala. 310, 68 South. 149, plaintiff was purchas- ing property from defendant on the installment plan. Plaintiff defaulted in one payment, and defendant threatened to declare all due. An agreement of settlement was reached and the property was placed in es- crow. Plaintiff was granted an in- junction to prevent defendant from withdrawing the property from the escrow. But the mere fact that di- rectors of a corporation, party to a contract, know that the other party is at work and say nothing about insisting on a forfeiture is no ground for estoppel: Farmers' Paw- nee Canal Co. v. Pawnee Water Stor- age Co., 47 Colo. 239, 107 Pac. 286. In general, see McCue v. Bradbury, 149 Cal. 108, 84 Pac. 993 (mortgagee assented to proposed mode of pay- ment and failed to make objection to tender, although tender was not in strict legal form). § 451, (d) This section is cited to this effect in Eastern Oil Co. v, Coulehan, 65 W. Va. 531, 64 S. E. 836. Thus, in Bliley v. Wheeler, 5 Colo. App. 287, 38 Pac. 603, one § 452 EQUITY JURISPRUDENCE. 860 § 452. Forfeiture Willful or Through Negligence, — While a defaulting party may thus acquire a right to the equi- table relief from the conduct of the other party, he may also lose the right, which otherwise would have existed, as a consequence of his own conduct. In a case where an agreement creates a mere pecuniary obligation, so that a forfeiture incurred by its breach would ordinarily be set aside, a court of equity will refuse to aid a defaulting party, and relieve against a forfeiture, if his violation of the con- tract was the result of gross negligence, or was willful and persistent. He who asks help from a court of equity must himself be free from inequitable conduct with respect to the same subject-matter.^ ^ Having thus exhibited the doc- § 452, 1 Hancock v. Carlton, 6 Gray, 39 ; Clarke v. Drake, 3 Chand. 223; Horsburg v. Baker, 1 Pet. 236. In Hancock v. Carlton, 6 Gray, 39, land had been conveyed, subject to certain mortgages which the grantee assumed to pay, and "on condition that the grantor should be indemnified and saved harmless." This condition having been broken and a forfeiture thereby incurred, the grantee brought suit in equity to set it aside. It appeared that the grantor had been compelled by due process of law to pay the mortgages, that he had duly notified the grantee (the plaintiff) of these legal proceedings, and required him to pay the mortgages, but the plaintiif had refused to do so. Upon these facts it was held that the plaintiff was not entitled to relief against the forfeiture thus occasioned, although in refusing to pay he had acted under a mistaken view as to his own liability. It may be doubted, I think, whether the court did not push the doctrine of the text too far, since the breach was not in any true sense willful. party claimed a forfeiture for 158, 62 Atl. 868. In general, see non-payment of an installment of Kann v. King, 204 U. S. 43, 51 L. Ed. $17, after having received nearly 360, 27 Sup. Ct. 213. The supreme $300. There was some dispute as to court of California in Parsons v. whether the $17 was due. The court Smilie, 97 Cal. 647, 32 Pac. 702, in granted relief, saying that "courts, construing section 3275 of the Civil in such cases, do not look compla- Code, held that "willful" forfeiture cently, under such circumstances, simply means one voluntarily in- upon what might be a technical for- curred. In that case an estate was feiture at law, but clearly inequi- forfeited for breach of condition sub- table in a case of this kind." sequent in not maintaining a lumber § 452, (a) See, also, § 856, note. yard. Eelief against the forfeiture This section i^ cited in Baltimore & was denied. In N". Y. & N. E. K. E. N. Y. E. Co. v. Bouvier, 70 N. J. Eq. Co. v. City of Providence, 16 E. I. mi CONCERNING PENALTIES AND FORFEITURES. §453 trine in its general form, I shall briefly describe the most important instances of its application, namely: to condi- tions and covenants in leases; to conditions in contracts for the sale of land; to particular stipulations in other con- tracts; to the forfeiture of shares of stock; and to forfeit- ures created by statute. § 453. Forfeitures Arising from Covenants in Leases. — Where a lease contains a condition that the lessor may re-enter and put an end to the lessee's estate, or even that the lease shall be void, upon the lessee's failure to pay the rent at the time specified, it is well settled that a court of equity will relieve the lessee and set aside a forfeiture in- curred by his breach of the condition, whether the lessor has or has not entered and dispossessed the tenant. This rule is based upon the notion that such condition and for- 746, 19 Atl. 759, a city had granted to a railroad certain easements upon condition that certain land was to be filled in. The grantee failed to per- form, whereupon the city took pos- session and made the filling. Thirty years later relief was sought on the ground that the city could be com- pensated. Eelief was refused. The case of South Penn Oil Co. v. Edge!], 48 W. Va. 348, 86 Am. St. Rep. 43, 37 S. E. 596, seems hardly in accord with the general rule as laid down in the text. By the contract Mrs. Edgell was entitled to certain gas free, and in case of breach a forfeit- ure was provided for. The ofiicers of the oil company overlooked this, demanded payment, and upon refusal shut off the supply. Mrs. Edgell de- clared a forfeiture, whereupon the company sued to set it aside. Speak- ing of the failure to observe the con- tract, the court said: "This was a matter of plain negligence on the part of some of the officers or coun- selors of the appellees, for they had possession of a copy of the contract. and by proper diligence could have been fully informed of its contents." "The breach in the case came from a negligent mistake, but it was not willful in a legal sense. To be so it must be knowingly committed." The court held that relief would be granted because "the gas was a ren- tal consideration easily ascertainable in money." See monographic note on the subject of relief from forfeitures in 86 Am. St. Rep. 48. Laches.— In applications for relief from forfeitures, the rule of laches ought to be rigidly applied. Thus, relief will be denied where the plain- tiffs have permitted a material change in the value and condition of the property to occur, and the rights of third persons to intervene, before they sought relief. Conduct indicat- ing an intention to await the result of operations under a lease and to make an election depend upon re- sults is forbidden by the rule against laches: Westerman v. Dinsmore, 68 W. Va. 594, 71 S. E. 250. § 454 EQUITY JURISPRUDENCE. 862 f eiture are intended merely as a security for the payment of money.i * § 454. Equity will not, under ordinary circumstances, relieve against a forfeiture arising from the breach of other § 453, 1 By the original doctrine of equity, the relief might be granted within any reasonable time after a breach, and even after an ejectment; by the English statute, the suit in equity must be brought within six months after the lessor has recovered a judgment in an action of eject- ment: Bowser v. Colby, 1 Hare, 109, 128, 130-132; Home v. Thompson, 1 Sausse & S. 615; Hill v. Barclay, 16 Ves. 403, 405, 18 Ves. 58-64; Eaton V. Lyon, 3 Ves. 692, 693; White v. Warner, 2 Mer. 459; Brace- bridge V. Buckley, 2 Price, 200; Reynolds v. Pitt, 19 Ves. 140; Atkins v. Chilson, 11 Met. 112; Sanborn v. Woodman, 5 Cush. 360; Stone v. Ellis, 9 Cush. 55; Palmer v. Ford, 70 111. 369. If, however, the lessee has also broken other covenants besides the one for rent, by reason of which he would be liable to an eviction, and against which no relief could be given, then a court of equity will not set aside the forfeiture incurred by a violation of the condition concerning rent, since such relief would be wholly nugatoiy : Bowser v. Colby, 1 Hare, 109 ; Home V. Thompson, 1 Sausse & S. 615; Wadman v. Calcraft, 10 Ves. 67; Davis V, West, 12 Ves. 475; Nokes v. Gibbon, 3 Drew. 693. § 453, (a) Quoted in Sunday Lake caused a present injury or increase Min. Co. V. Wakefield, 72 Wis. 204, of risk to the lessors, as in the case 39 N. W. 136; also in Shaffer v. of waste, non-repair, or non-insur- Marks, 241 Fed. 139; Wylie v. ance. In such a case a court of Kirby, 115 Md. 282, Ann. Cas. 1913A, equity is not required to refuse relief 825, 80 Atl. 962. In the case of Lun- against a forfeiture, but may look din V. Schoeffel, 167 Mass. 465, 45 into the circumstances, and deter- N. E. 933, one breach consisted in mine whether, on the whole, it is the tenant's not fitting up the prem- just and right that such relief should ises promptly. The court said: "If bp granted." In Shriro v. Paganucci, the lessee's failure had been an omis- 113 Me. 213, 93 Atl. 358, the lease sion to pay rent promptly as it be- provided that on failure to pay rent, came due, it is plain that a court of whether demanded or not, the lessor equity might relieve against a for- could expel the lessee. After a ten- feiture on this ground, though the ancy of four and one-half years the omission was even willful. But the lessee was thirty-six hours in default lessee's failure in this case was on a payment. It was held that the merely an omission to do promptly lessee should be relieved from the something which was only useful to forfeiture. In Creamery Dairy Co. the lessors by way of security for v. Electric Park Co. (Tex. Civ. the future payment of rent. It was App.), 138 S. W. 1106, the tenant not like a case where the omission tendered four months' arrearage, but 863 CONCEENING PENALTIES AND FOEFEITURES. § 454 covenants contained in a lease, on the ground that no exact compensation can be made. Among these covenants for a breach of which no relief can ordinarily be given is that to repair generally, or to make specific repairs, or to lay out a certain sum of money in repairs or erections within a specified time;!^ the covenant to insure ;2 the covenant not to assign without license i^^ and in other covenants of a § 454, 1 Gregory v. Wilson, 9 Hare, 683, 689 ; Nokes v. Gibbon, 3 Drew. 681; Hill V. Barclay, 16 Ves. 403, 406, 18 Ves. 58, 61, per Lord Eldon; Bracebridge v. Buckley, 2 Price, 215; Croft v. Goldsmid, 24 Beav. 312; the earlier eases of Hack v. Leonard, 9 Mod. 90, per Lord Macclesfield, and Sanders v. Pope, 12 Ves. 282, 290, per Lord Erskine, which laid down a different rule, have been ovei'turued by the subsequent authorities above cited. § 454, 2 Gregory v. Wilson, 9 Hare, 683; Green v. Bridges, 4 Sim. 96; Reynolds v. Pitt, 19 Ves. 134; Bracebridge v. Buckley, 2 Price, 218; White V. Warner, 2 Mer. 459; Havens v. Middleton, 10 Hare, 641. An English statute authorizes the court to relieve against forfeiture incurred by a breach of a covenant to insure, in certain specified cases; 22 & 23 Vict., chap. 35, §§4, 6, 7, 8. § 454, 3 Hill v. Barclay, 18 Ves. 36, per Lord Eldon; Wafer v. Mocate, 9 Mod. 112; Wadman v. Calcraft, 10 Ves. 67; Lovat v. Lord Ranelagh, 3 Ves. & B. 24; Bracebridge v. Buckley, 2 Price, 200, 221; Baxter v. Lan- the landlord refused to accept. A W. 1038, an owner of a department temporary injunction restraining the store leased a department under an cancellation of the lease was held agreement for a share in the re- proper, the court saying that the ceipts. It was held that equity only injury to the lessor was the would relieve from a forfeiture oc- loss of opportunity to make a better casioned by failure to report a small lease, and that this does not appeal part of the receipts, to a court of equity. In general, see The text is cited in Attala Min. Kann v. King, 204 U. S. 43, 51 L. Ed. & Mfg. Co. v. Winchester, 102 Ala. 360, 27 Sup. Ct. 213; Pheasant v, 184, 14 South. 565; O'Byrne v. Jebe- Hanna, 63 W. Va. 613, 60 S. E'. 618 les & Colias Confectionery Co., 165 (forfeiture of mining lease for fail- Ala. 183, 51 South. 633. See, also, ure to pay royalties promptly re- Johnson v. Lehigh Val. Traction Co., lieved against). Equity will also in- 130 Fed. 932. terfere when the forfeiture is of § 454, (a) This portion of the text money deposited to secure perform- is quoted in O'Byrne v. Jebeles & ance of covenant to pay rent: Yuen Colias Confectionery Co., 165 Ala. Suey V. Fleshman, 65 Or. 606, 133 183, 51 South. 633. Pac. 803. In Milwaukee Boston § 454, (b) See, also, Barrow v. Store V. Katz, 153 Wis. 492, 140 N. Trustees, [1891] 1 Q. B. 417 (cove- § 455 EQUITY JURISPRUDENCE. 864 special nature.^ ^ It should be observed, however, that in all cases of this class relief may be given when the breach was the result of fraud, mistake, accident, surprise, and the like, or was acquiesced in or waived by the lessor.^ ^ § 455. From Contracts for the Sale of Land. — AVhere an ordinary contract for the sale of land is so drawn that the vendee's estate, interest, and rights under it are liable to be forfeited and lost upon his failure to pay the price at the time specified, the question whether equity will relieve him ought to be a very plain and simple one; but in the face of the authorities, it is impossible to be answered in any sing, 7 Paige 350. But in Grigg v. Landis, 21 N. J. Eq. 494, 514, it was held that a clause in a contract of sale that the vendee should not assign did not come within the meaning and operation of this rule. § 454, 4 To cultivate the land in a husbandlike manner : Hills v. Row- land, 4 De Gex, M. & G. 430 ; not to carry on a particular trade : Maeher V. Foundling Hospital, 1 Ves. & B. 187; not to suffer persons to use a private way over part of the land leased : Descarlett v. Dennett, 9 Mod. 22. § 454, 5 See ante, § 451, and cases in note. nant against underletting). But developed, except for a purpose such relief was given in E'. H. foreign to the agreement." See, Powers Shoe Co. v. Odd Follows Hall also, Hukill v. Guflfey, 37 W. Va. 425, Co., 133 Mo. App. 229, 113 S. W. 253 16 S. E. 544. Equity will not relieve (citing this paragraph of the text), from a forfeiture because of non- where the lessor had allowed the payment of taxes when the failure assignee to make valuable improve- to perform has led to a tax sale, ments before declaring a forfeiture. ripening into a prima facie irredeem- § 454, (c) In Monroe V. Armstrong, able title held adversely to the 96 Pa. St. 307, there was a covenant lessor. In other words, equity "will for forfeiture in ease of delay in not require an owner to risk the loss working under an oil lease. The of his property by compelling him to court said: "Forfeiture for non-de- engage in a contest involving the velopment or delay, is essential to validity of an irredeemable tax sale, private and public interests in rela- for the purpose of endowing the ten- tion to the use and alienation of ant with the right, if the tax sale property. In such cases as this, be held invalid, to pay the taxes and equity follows the law. In general, thus be relieved of a forfeiture": equity abhors a forfeiture, but not Kann v. King, 204 U. S. 43, 51 L. when it works equity and protects Ed. 360, 27 Sup. Ct. 213. a landowner from the laches of a §454, (d) The text is quoted in lessee whose lease is of no value till Shaffer v. Marks. 241 Fed. 139. 865 CONCERNING PENALTIES AND FORFEITUEES. §455 general and certain manner. To examine this question in detail would require me to anticipate the full discussion of the doctrine concerning time as the essence of contracts in their specific enforcement. I shall therefore simply state the general conclusion derived from the decided cases. It is well settled that where the parties have so stipulated as to make the time of payment of the essence of the contract, within the view of equity as well as of the law, a court of equity cannot relieve a vendee who has made default.^ § 455, (a) Quoted in Granville Lumber Co. v. Atkinson, 234 Fed. 424; Fratt v. Daniels- Jones Co., 47 Mont. 487, 133 ?ac. 700; Souter v. Witt, 87 Ark. 593, 128 Am. St. Rep. 40, 113 S. W. 800. The text is cited in Westerman v. Dinsmore, 68 W. Va. 594, 71 S. E. 250; Spedden v. Sykes, 51 Wash. 267, 98 Pac. 752; Gray v. Pelton, 67 Or. 239, 135 Pac. 755; Maffet v. Oregon & C. R. Co., 46 Or. 443, 80 Pac. 489; Krisky v. Bryan (Ind. App.), 115 N. E, 70. See Talkin v. Anderson (Tex.), 19 S. W. 852; Sanders v. Carter, 91 Ga. 450, 17 S. E. 345; Aikman v. Sanborn (Cal.), 52 Pac. 729; Alli- son V. Dunwody, 100 Ga. 51, 28 S. E. 651; Drown v. Ingels, 3 Wash. St. 424, 28 Pac. 759; Moore v. Durnam, 63 N. J. Eq. 96, 51 Atl. 449; Buck- len V. Hasterlik, 155 111. 423, 40 N. E. 561; Womack v. Coleman (Minn.), 93 N. W. 663; Keefe v. Fairfield (Mass.), 68 N. E. 342. The Califor- nia rule is well discussed in Glock V. Howard & Wilson Colony Co., 123 Cal. 1, 69 Am. St. Rep. 17, 43 L. R. A. 199, 55 Pac. 713. This section of the text is quoted with approval, and earlier California cases, especially Drew V. Pedlar, 87 Cal. 443, 22 Am. Bt. Rep. 257, 25 Pac. 749, are distin- guished. See, also. Equitable Loan & Security Co. v. Waring, 117 Ga. 1—55 599, 97 Am. St. Rep. 176, 44 S. E. 320. The same rule applies in a con- tract for the exchange of land, un- less the stipulated sum is larger than the obligation: Westbay v. Terry, 83 Ark. 144, 103 S. W. 160. Com- pare Calbeck v. Ford, 140 Mich. 48, 103 N. W. 516; Beury v. Fay, 73 W. Va. 460, 80 S. E. 777. See, also, Madler v. Silverstone, 55 Wash. 159, 34 L. R. A. (N. S.) 1, 104 Pac. 165 (agreement to forfeit and pay upon breach). In Howard v. Adkins, 1G7 Ind, 184, 78 N. E. 665, an agreement for an exchange of merchandise for land contained a provision for for- feiture of $500 in case of breach by either party. The provision was held to call for liquidated damages. Where the vendor forbears for more than three years to declare a for- feiture for non-payment of install- ments, he cannot declare a forfeiture until he has made time of the es- sence by notice: Walker v. McMur- chie, 61 Wash. 489, 112 Pac. 500. See, also. Gray v. Pelton, 67 Or. 239, 135 Pac. 755; Baerenklau v. Peerless Realty Co., 80 N. J. Eq. 26, 83 Atl. 375. Compare Kilmer v. British Columbia Orchard Lands, Ltd., [1913] A. C. 319. In Wrenn v. Uni- versity Land Co., 65 Or. 432, 46 L. R. A. (N. S.) 897, 133 Pac. 627, the contract provided that no interest § 455 EQUITY JURISPRUDENCE. 866 With respect to this rule there is no doubt; the only diffi- culty is in determining when time has thus been made essen- tial. It is also equally certain that when the contract is made to depend upon a condition precedent, — in other words, when no right shall vest until certain acts have been done, as, for example, until the vendee has paid certain sums at certain specified times, — then, also, a court of equity will not relieve the vendee against the forfeiture incurred by a breach of such condition precedent.^ But when, on the other hand, the stipulation concerning payment is only a condition subsequent, a court of equity has power to relieve the defaulting vendee from the forfeiture caused by his breach of this condition, upon his paying the amount due, with interest, because the clause of forfeiture may be re- garded as simply a security for the payment. <= It is there- fore held, in a great number of cases, that the forfeiture provided for by such a clause, on the failure of the pur- chaser to fulfill at the proper time, will be disregarded and should be charged on payments paid 77 S. E. 866. A party who is unable when due, but that interest should to show a good title cannot insist be charged if payments were not upon a forfeiture: Tharp v. Lee, 25 made promptly. It was held that Tex. Civ. App. 439, 62 S. W. 93. the provision was valid. In general, § 455, (b) Quoted in Woods v. Me- see Potomac Power Co. v, Burchell, Graw (C. C. A.), 127 Fed. 914; also 109 Va. 676, 64 S. E. 982. A sum in Granville Lumber Co. v. Atkinson, deposited on a sale of land will not 234 Fed. 424; Bartlesville Oil & Im- be considered liquidated damages provement Co. v. Hill, 30 Okl. 829, where there is no language in the 121 Pac. 208; Souter v. Witt, 87 Ark. contract evidencing the intention of 593, 128 Am. St. Eep. 40, 113 S. W. the parties to consider it as such: 800. The text is cited to this point Kellam v. Hampton, 58 Tex. Civ. in Gordon Tiger Mining & Eeduction App. 484, 124 S. W. 970. It has Co. v. Brown, 56 Colo. 301, 138 Pac. been held, in a few cases, however, 51; Bluthenthal v. Atkinson, 93 Ark. that if the damages can be ascer- 252, 124 S. W. 510 (option to renew tained, relief will be awarded even lease; failure to give notice within in case of a forfeiture in a contract the time specified). for the sale of land: Barnes v. Cle- §455, (c) Cited to this effect in ment, 12 S. D. 270, 81 N. W. 301; Donnelly v. Eastes, 94 Wis. 390, 69 Easton v. Cressey, 100 Cal. 75, 34 Pac. N. W. 157. In general, on the sub- 622; Allison V. Cocke's Ex'rs, 106 Ky. ject of this paragraph, see Pom. 763, 51 S. W. 593. Compare Ould v. Equitable Remedies. Spartanburg Eealty Co., 94 S. C. 184, 867 CONCERNING PENALTIES AND FORFEITURES. § 456 set aside by a court of equity, unless such failure is inten- tional or willful. This conclusion is in plain accordance with the general doctrine of equity in relation to relief against forfeitures ; but it cannot be regarded as a universal rule. Under exactly these circumstances many American decisions have treated such a clause as rendering the stipu- lated time of payment essential, and as therefore binding according to its letter, and have refused to give any relief. ^ § 456. From Other Contracts. — In all other special con- tracts containing provisions for a forfeiture, the same gen- eral principle must, of course, be applied, although there may be some doubt or difficulty in the application. It is clear that if the contract be of such a nature that a clause for the payment of a certain sum upon its violation would be pronounced a provision for liquidated damages, then a court of equity would grant no relief against a forfeiture in- curred by its non-performance. On the other hand, if the obligation created by the contract is substantially, though perhaps indirectly, a pecuniary one, then a court of equity undoubtedly will aid the defaulting party by setting aside a forfeiture. Between these two extremes there is a mass of agreements with respect of which the action of the courts in giving relief may perhaps be regarded as somewhat dis- cretionary. The mere fact that a certain sum stipulated to be paid upon a violation would be treated as a penalty is not of itself decisive in favor of a relief from forfeiture in similar cases. The examples given in the note will serve § 455, 1 See Pomeroy on Specific Performance, §§ 335, 336, 379; Wells V. Smith, 2 Edw. Ch. 78, 7 Paige, 22, 24; Edgerton v. Peckham, 11 Paige, 352, 359; Sanborn v. Woodman, 5 Cush-. 36; Decamp v. Feay, 5 Serg. & R. 323, 326, 9 Am. Dec. 372; Remington v. Irwin, 14 Pa. St. 143, 145; Jones V. Robbins, 29 Me. 361, 50 Am. Dec. 593; Clark v. Lyons, 25 111. 105; Snyder v. Spaulding, 57 111. 480, 484; McClartey v. Gokey, 31 Iowa, 505 ; Steele v. Branch, 40 Cal. 3 ; Farley v. Vaughn, 11 Cal. 227 ; Royan V. Walker, 1 Wis. 527; as examples of cases where court has refused to interfere, see Benedict v. Lynch, 1 Johns. Ch. 370, 7 Am. Dec. 484; Grey V. Tubbs, 43 Cal. 359. Such decisions as these seem to ignore the equi- table principle of relief from penalties and forfeitures. § 456 EQUITY JURISPRUDENCE. 868 to illustrate the action of courts in dealing witli such agree- ments.i * § 456, 1 In Steele v. Branch, 40 Cal. 3, a contract for the sale of land i'ontained a condition that if the vendee did not pay off a mortgai;:e upon the premises when it fell due, the contract should be void and the land revert to the vendor. This condition was held to he a security for the performance of an obligation simply pecuniary, and the vendee was re- lieved from the forfeiture occasioned by its default. In Gregg v. Landis^ 19 N. J. Eq. 850, 21 N. J. Eq. 494, 514, the question was carefully examined. A contract for the sale of land stipulated that the vendee should plant shade-trees in a specified manner before a certain date, should erect a house for occupation within a year, and should bring at least two and a half acres under cultivation every year, and in default of any of these provisions the vendor should be entitled to take back the land, etc. The court held that the forfeiture caused by the vendee's non- performance could not be set aside. In City Bank v. Smith, 3 Gill & J. 265, a contract concerning lottery tickets provided that no holder of a ticket should be entitled to a prize unless he presented his claim within a year; and it was held that the presentation within a year was thus made a condition precedent, and a court could not relieve a ticket-holder who had failed to comply with this req Irement. See, also, as to conditions precedent in contracts, Flagg v. Hunger, 9 N. Y. 483, 500; Faunce v. Burke, 16 Pa. St. 469, 55 Am. Dec. 519. In Henry v. Tupper, 29 Vt. 358, where a deed was conditioned for the perfomiance of a covenant by the grantee to maintain the grantor with food and lodging, it was held that equity would relieve the grantee from a forfeiture occasioned by his unintentional non-performance. The opinion in this case is able and in- structive, and contains an exhaustive review of the decisions, English and American. It was said that whether relief would be granted or not in such cases was discretionary with the court. See, also, Dunklee v. Adams, 20 Vt. 421, 50 Am. Dec. 44 ; Austin v. AiL«tin, 9 Vt. 420 ; Hagar v. Buck, 44 Vt. 285, 8 Am. Rep. 368. §456, (a) In Sanford v. First Nat. L. R. A. 211, 18 S. W. 262. But, Bank of Belle Plaine, 94 Iowa, 680, on the other hand, where the agree- 63 N. W. 459, relief was refused ment provided for a forfeiture of all against a forfeiture contained in an wages in case of the employee leav- agreement of partnership. Belief ing without notice, the stipulation has been refused to an employee who has been held unreasonable and re- agreed to a forfeiture of a definite lief granted. Schmieder v. Kings- amount of wages in case of a breach ley, 6 Misc. Rep. 107, 26 N. Y. Supp. of the contract of employment. Ten- 31; affirmed, 7 Misc. Rep. 744, 27 nessee Mfg. Co. v. James, 91 Tenn. (7 N. Y. Supp. 1124. In Woodbury v. Pick.) 154, 30 Am. St. Rep. 865, 15 Turner, Day & Woolworth Mfg. Co., 869 CONCERNING PENALTIES AND FORFEITURES. §451 § 457. Of Shares of Stock. — A forfeiture of the shares of stock in a corporation, regularly and duly incurred by the stockholder's or subscriber's failure to pay the calls or installments thereon according to the charter or by-laws of the company, will not be set aside or relieved against by a court of equity; and the same is true of a forfeiture of public and governmental stock by reason of a failure to comply with the terms of the loan concerning payment.^ * § 457, 1 Sparks v. Company, etc., of Liverpool Water Works, 13 Ves. 428, 433, 434, per Sir William Grant, M. R.; Pendergast v. Turton, 1 96 Ky. 459, 29 S. W. 295, relief was refused against a forfeiture in a con- tract for the sale of a business. It has been held that no relief can be had against a forfeiture of a part- nership interest for violation of an agreement not to use liquor in ex- cess: Henderson v. Murphree, 109 Ala. 556, 20 South. 45. In Eureka Light & Ice Co. v. City of Eureka (Kan. App.), 48 Pac. 935, a street railway company deposited a sum of money to be forfeited in case of fail- ure to comply with a municipal ordi- nance. The court refused to relieve. But in Wilson v. Mayor, etc., of Bal- timore, 83 Md. 203, 55 Am. St. Rep. 339, 34 Atl. 774, a deposit with a municipal corporation to secure the fulfillment of a contract for supplies was held to be a penalty, and a re- covery of the amount so deposited was allowed. In Fessman v." Seeley (Tex. Civ. App.), 30 S. W. 268, the plaintiff had paid a sum for the schooling of his boy. The boy be- haved in such a manner as to war- rant expulsion, and the plaintiff thereupon sued to recover the amount paid. It was held that he was not entitled to this relief. For- feiture of a life insurance policy for non-payment of premiums at a stipu- lated time will not be relieved against. Klein v. New York Life Ins. Co., 104 U. S. 88; Knickerbocker Life Ins. Co. v. Dietz, 52 Md. 16; Iowa Life Ins. Co. v. Lewis, 187 U. S. 335, 23 Sup. Ct. 126; Manhattan Life Ins. Co. v. Wright (C. C. A.), 126 Fed. 82. In Gates v. Parmly, 93 Wis. 294, 66 N. W. 253, 67 N. W. 739, a vendor who had deeded prop- erty agreed to forfeit half the pur- chase price if he should not show a good title. The court held the amount to be excessive and granted relief. In Nichols v. Haines, 98 Fed. 692, 39 C. C. A. 235, a provision for forfeiture of a deposit for non-per- formance of a contract to purchase a crop of oranges was held to be such that the court would grant relief, the damages being capable of ascer- tainment. And see Kerslake v. Me- Innis, 113 Wis. 659, 89 N. W. 895. In general, see Farmers' Pawnee Canal Co. v. Pawnee Water Storage Co., 47 Colo. 239, 107 Pac. 286; Wkeeling & E. G. E. Co. v. Triadel- phia, 58 W. Va. 487, 4 L. R. A. (N. S.) 321, 52 S. E. 499. §457, (a) Burham v. S. F. Fuse Mfg. Co., 76 Cal. 26, 17 Pac. 339; Southern B. & L. Ass'n v. Anniston L. & T. Co., 101 Ala. 582, 46 Am. St. Rep. 138, 29 L. R. A. 120, 15 South. 123 (forfeiture of stock in building and loan association). §§458,459 EQUITY JURISPRUDENCE. 870 § 458. When Imposed by Statute. — Finally, -whenever any forfeiture is provided for by a statute, to be incurred on the doing or not doing some specified act, equity can afford no relief from it, and the same is true of a statutory penalty. A court of equity has no power to disregard or set aside the express terms of statutory legislation, however much it may int'srfere with the operation of common-law rules. ^ ^ § 459. Equity wiU not Enforce Forfeitures. — The second question which it was proposed to consider is. When will a court of equity by its decree actively enforce or carry Younge & C. Ch. 98, 110-112; Naylor v. South Devon R'y Co., 1 De Gex & S. 32; Sudlow v. Dutch, etc., R'y Co., 21 Beav. 43; Germantown R'y, etc. V. Fitler, 60 Pa. St. 124, 131, 90 Am. Dec. 546; Small v. Herkimer Mfg. Co., 2 N. Y. 335. Of course, if there is any fraud or other inequi- table or illegal conduct in the proceedings by which the calls are made or the shares are condemned, equity may, on that ground, relieve the stock- holder or subscriber from the forfeiture, either by enjoining the proceed- ings of the corporation officials, or by setting them aside if they have been completed. § 458, 1 Peachy v. Duke of Somerset, 1 Strange, 447, 452-456 ; Keat- ing V. Sparrow, 1 Ball & B. 373; Powell v. Redfield, 4 Blatchf. 45. § 458, (a) This paragraph is quoted suit, equity may enforce penalties in State v. McBride, 76 Ala. 51; created by liquor nuisance statute, cited with approval in State v. Hall, In general, see, also, McCreary v. 70 Miss. 678, 13 South. 39. In this First Nat. Bank, 109 Tenn. 128, 70 case the court held that equity S. W. 821. But in Mississippi R. "should have given full relief by fol- Com. v. Gulf & S. I. R. Co., 78 Miss. lowing the law and enforcing the 750, 29 South. 789, a state railroad penalty." Cited and distinguished commission brought a bill to enforce in Wheeling & E. G. E. Co. v. Tria- a penalty against a railroad for ehar- delphia, 58 W. Va. 487, 4 L. R. A. ging excessive rates. The court re- (N. S.) 321, 52 S. E. 499. Cited in fused to enforce, and held that the Keystone Lumber-Yard v. Yazoo & state cannot compel chancery to take M. V. R. Co., 96 Miss. 116, Ann. Cas. jurisdiction in such a case. 1912A, 801, 50 South. 445, to the See Clark v. Barnard, 108 U. S. effect that equity may enforce a pen- 436, 2 Sup. Ct. 878, and cases cited; alty for the purpose of complete Smith v. Mariner, 5 Wis. 551, 68 Am. relief, if it is imposed by statute and Dec. 73. But equity may relieve does not arise out of contract. where the forfeiture is invalid: Vir- Cited in State v. Marshall, 100 Miss. den v. Board of Pilot Com'rs., 8 Del. 626, Ann. Cas. 1914A, 434, 56 South. Ch. 1, 67 Atl. 975. 792, holding that in an injunction 871 CONCERNING PENALTIES AND FORFEITURES. §459 into effect a forfeiture? The general answer to this ques- tion is easy and clear. It is a well-settled and familiar doctrine that a court of equity will not interfere on behalf of the party entitled thereto, and enforce a forfeiture, but will leave him to his legal remedies, if any, even though the case might be one in which no equitable relief would be given to the defaulting party against the forfeiture.* §459, (a) Quoted in McClellan v. Coffin, 93 Ind. 456; Olden v. Sass- man (N. J. Eq.), 57 Atl. 1075; Mo- berly v. City of Trenton (Mo.), 81 S. W. 169; United States v. Washing- ton Improvement & D. Co., 189 Fed. 674; Harrison v. Woodward, 11 Cal. App. 15, 103 Pac. 933; Boss Tin Mine V. Cherokee Tin Mining Co., 103 S. C. 243, 88 S. K 8. Cited with approval in Donnelly v. E'astes, 94 Wis, 390, 69 N. W. 157; Michigan Pipe Co. V. Fremont Ditch, Pipe Line & Eeservoir Co., Ill Fed. 284, 49 C. C. A. 324; Worthington v. Moon, 53 N. J. Eq. 46, 30 Atl. 251; Craig V. Hukill, 37 W. Va. 520, 16 S. E. 363; Negaunee Iron Co. v. Iron Cliffs Co. (Mich.), 96 N. W. 468; Armitage v. Mt. Sterling Oil & Gas Co. (Ky.), 80 S. W. 177; Morris v. Kettle (N. J. Eq.), 34 Atl. 376; In re Larkey, 214 Fed. 867; Bell v. Scranton Coal Mines, 59 Wash. 659, 110 Pac. 628; Tarr v. Stearman, 264 HI. 110, 105 N. E. 957; Dresser v. Hartford Life Ins. Co., 80 Conn. 681, 70 Atl. 39; Mason v. Fichner, 120 Minn. 185, 139 N. W. 485; Higgin- botham v. Frock, 48 Or. 129, 120 Am. St. Rep. 796, 83 Pac. 536; Lackland r. Hadley, 260 Mo. 539, 169 S. W. 275; Deerfield Lumber Co. v. Lyman, 89 Vt. 201, 94 Atl. 837; Headley v. Hoopengarner, 60 W. Va. 626, 55 S. E. 744; Mash v. Bloom, 130 Wis. 366, 118 Am. St. Rep. 1028, 110 N. W. 203, 268. This portion of the text is cited in United States v. Oregon & C. R. Co., 186 Fed. 861, but the case holds that equity may enforce a for- feiture when it is equitable to do so. See, also, Hagerty v. White, 69 Wis. 317, 34 N. W. 92; Bucklen v. Haster- lik, 155 111. 423, 40 N. E. 561; Missis- sippi R. Com. V. Gulf & S. I. R. Co., 78 Miss. 750, 29 South. 789; Hors- burg V. Baker, 1 Pet. 232; Hodges vT Buell (Mich.), 95 N. W. 1078; Broad- nax v. Baker, 94 N. C. 675, 55 Am. Rep. 633; Kampman v. Kampman, 98 Ark. 328, 135 S. W. 905; Work v. Fidelity Oil, Gas & Mineral Co., 79 Kan. 118, 98 Pac. 801; John v. Mc- Neal, 167 Mich. 148, 132 N. W. 508; Sanitary Dist. of Chicago v. Chicago Title & Trust Co., 278 El. 529, 116 N. E. 161; Farmers' Pawnee Canal Co. v. Pawnee Water Storage Co., 47 Colo. 239,107 Pac. 286; Thornton v. City of Natchez, 88 Miss. 1, 41 South. 498; Pyle V. Henderson, 65 W. Va. 39, 63 S. E. 762; Newton v. Kemper, 66 W. Va. 130, 66 S. E. 102; McGraw Oil & Gas Co. V. Kennedy, 65 W. Va. 595, 28 L.- R. A. (N. S.) 959, 64 S. E. 1027. Thus, a court of equity does not lend its aid to divest an estate for a breach of a condition subse- quent and thereby enforce a forfeit- ure: Birmingham v. Lesau, 77 Me. 494, 1 Atl. 51; Donnelly v. Eastes, 94 Wis. 390, 69 N. W. 157; Goleonda Northern Ry. v. Gulf Lines Connect- ing R. R., 265 111. 194, 106 N. E. 818; Springfield & N. E. Traction Co. v. § 459 EQUITY JURISPRUDENCE. 872 The few apparent exceptions to this doctrine are not real exceptions, since they all depend upon other rules and prin- ciples. ^ The r' -ons of the doctrine are to be found in the universal principle that a court of equity refuses to aid § 459, 1 Popham v. Bampfield, 1 Vern. 83 ; Carey v. Bertie, 2 Vern. 339; United States v. McRae, L. R. 4 Eq. 327; Livingston v. Tompkins, 4 Johns. Ch. 415, 431, 8 Am. Dec. 598; Baxter v. Lansing, 7 Paige, 350, 353; Gordon v. Lowell, 21 Me. 251; Smith v. Jewett, 40 N. H. 530, 534; Atlas Bank v. Nahant Bank, 3 Met. 581; Warner v. Bennett, 31 Conn. 461, 468; Oil Creek R. R. v. Atlantic & G. W. R. R., 57 Pa. St. 65; Meig's Appeal, 62 Pa. St. 28, 35, 1 Am. Rep. 372 ; McKim v. White Hall Co., 2 Md. Ch. 510; White v. Port Huron, etc., R. R., 13 Mich. 356; Michigan Bank v. Hammond, 1 Doug. (Mich.) 527; Lawl v. Hyde, 39 Wis. 353; Eveleth v. Little, 16 Me. 374, 377; Clarke v. Drake, 3 Chand. 253, 259; Fitzhugh v. Maxwell, 34 Mich. 138; Beecher v. Beecher, 43 Conn. 556. In Oil Creek R. R. v. Atlantic, etc., R. R., 57 Pa. St. 65, Mr. Justice Sharswood explained the equitable grounds of this universal doctrine as follows: A lease had been granted containing a condition that the lessee should build a certain railroad within a prescribed time, and the plaintiffs sought to enforce a forfeiture of the lease on account of the defendant's non-performance of this condition. It was, therefore, veiy plainly a case Avhere the court could not, in accordance with the settled rule, set aside the forfeiture at the suit of the lessee. The court "Warrick, 249 111. 470, Ann. Cas. the latter from removing buildings 1912 A, 187, 94 N. E. 933; Geffert v. from the premises. But in MeCIel- Geffert, 98 Kan. 57, 157 Pac. 384; Ian v. Coffin, 93 Ind. 456, it is held Spies V. Arvondale & C. R. Co., 60 that equity will interfere to remove W. Va. 389, 55 S. E. 464; nor will a cloud on title, even though the for- it entertain a complaint for the pur- feiture of some interest may indi- pose of inserting a forfeiture clause reetly result. See, also, Sawyer v. in an absolute deed: Mills v. Evans- Cook, 188 Mass. 163, 74 N. E. 356. ville Seminary, 52 Wis. 669, 9 N. W. Equity will not divest a vested es- 925. In McCormick v. Rossi, 70 Cal. tate by enforcing a forfeiture for 474, 15 Pac. 35, plaintiff sought a the breach of a subsequent condi- decree that defendant had forfeited tion: Craig v. Hukill, 37 W. Va. 520, all rights under a contract for the 16 S. E. 363. See, also, Pike's Peak sale of land by non-payment of the Power Co. v. City of Colorado, 105 purchase price. It was held that the Fed. 1, 44 C. C- A. 33; Henry v. relief should be denied, for other- Mayer (Ariz.), 53 Pac. 590; Morse wise a forfeiture would be enforced. v. O'Reilly, Fed. Cas. No. 9858. It A similar result was reached in has been held that a bill to quiet Crane v. Dwyer, 9 Mich. 350, 80 Am. title cannot be maintained to enforce Dec. 87, where the vendor, after de- a condition subsequent contained in fault by vendee, sought to enjoin a deed: Brown v. Chicago & N. W. S73 CONCERNING PENALTIES AND FORFEITURES. § 459 any party who, by the remedy which he seeks to obtain against his adversary, is not himself doing equity, or who does not come before the court ''with clean hands," — the same principle upon which the court acts when it refuses said: "A bill for the specific enforcement of a contract is an appeal to the conscience of the chancellor. He exercises upon the question jjre- sented a sound discretion, under all the circumstances of the case, for the most part untrammeled by rule or precedent. If the bargain is a hard or unconscionable one, if the terms are unequal, if the party calling for his aid is seeking an undue advantage, he declines to interfere. There- fore it is that although courts of equity will not, in general, relieve against a forfeiture, unless it be in the case of non-payment of rent, where an exact and just compensation can be made by decreeing to the landlord the arrears of his rent, with interest and costs, yet they never lend tlieir assistance to the enforcement of one, but leave the party to his legal reme- dies. More especially is this the case where the contract has been sub- stantially carried out, but its literal fulfillment has been prevented by uncontrollable circumstances. It is unnecessary to cite authorities in sup- port of these positions. They underlie all the cases which abound upon the subject, and have been canonized in the standard elementary works. They commend themselves to every man's common sense of reason and justice, in view of the special objects which courts of equity have been constituted to effectuate." K'y Co. (Iowa), 82 N. W. 1003. In 53 N. J. Eq. 46, 30 Atl. 251, the Harper v. Tidholm, 155 111. 370, 40 plaintiff sought to enjoin a trespass N. E. 575, a vendee of land recorded by defendant, who was removing his contract for a deed and then clay from plaintiff's land. Plaintiff made default. The court held that maintained that defendant had for- complainant might maintain a bill to feited the right to remove the clay remove the cloud on the title. "In already dug by not taking it in time, affording this relief, it, of course, The court held that it would not en- became necessary for the court to de- force the forfeiture by the injunc- termine whether the contract was tion. In Drake v. Laeoe, 157 Pa. St. still subsisting or not; and the effect 17, 27 Atl. 538, the plaintiff sought of this decree was to find that it had a decree of forfeiture for non-pay- been terminated, in accordance with ment of royalties. The court held its terms, by the acts of the parties that by long delay in asserting themselves, and that it was therefore rights the lessor had waived the null and void, and a cloud upon the right to this. In Field v. Ashley, title." A party cannot come into 79 Mich. 231, 44 N. W. 602, a bill equity to enforce a forfeiture by in- was brought for an injunction junction: Coe v. Columbus, P. & I. against a vendee who had not ac- R. Co., 10 Ohio St. 372, 75 Am. Dec. quired title to prevent a disposition 518. Thus, in Worthington v. Moon, of the property. The court said: "It 460 EQUITY JURISPRUDElSrCE. 874 to specifically enforce a contract which is unequal, unjust, or has any inequitable features and incidents.'' § 460. There are, in fact, no exceptions to this doc- trine; those which appear to be exceptions are not so in is established beyond controversy that courts of chancery in this state have jurisdiction in cases of this character. Such bills are analogous to foreclosure bills, and do not seek to enforce a forfeiture. §459, (b) Quoted in Ross Tin Mine v. Cherokee Tin Mining Co., 103 S. C. 243, 88 S. E. 8. This sec- tion is quoted as a whole in Chero- kee Construction Co. v. Bishop, 86 Ark. 489, 126 Am. St. Rep. 1098, 112 S. W. 189. The last sentence is quoted in Telegraphone Corp. v. Canadian Telegraphone Co., 103 Me. 444, 69 Atl. 767. In a few recent cases the courts have held that equity may enforce a forfeiture when it would be more inequitable not to do so. Thus in Liddle v. Cook, 209 Fed. 182, 126 C. C. A. 130, it was held "that in cases otherwise cognizable in equity there is no insuperable objection to the enforcement of a forfeiture, if it is more consonant with principles of right, justice and morality than to withhold equitable relief. The complainant will be entitled to re- lief, however, only on such a strong case that the general indisposition of courts of equity to aid in the en- forcement of a forfeiture is over- come." See, also, Van Sice v. Ibex Mining Co., 173 Fed. 895, 97 CCA. 587. In Lindeke v. Associates Realty Co., 146 Fed. 630, 77 C. C A. 56, the principle was applied in a ease where a corporation tenant failed to per- form a covenant to build a five-story building within five years. The les- sor notified the tenant that he claimed a forfeiture. Then the com- pany became bankrupt, the trustee refused to perform, and was about to sell its rights under the leasehold. It was held that as the purchaser would not be liable for damages for an antecedent breach, and as the dividend which the lessor might re- ceive in bankruptcy would be far from an adequate compensation, a forfeiture should be decreed. Mining, Oil and Gas Leases. — These principles were applied in Risch V. Burch, 175 Ind. 621, 95 N. E. 123, in an action to forfeit a lease of oil wells where the lessee had done no work and had paid nothing. The court held that such contracts stand in a class by themselves and that the general rule that equity will not decree a forfeiture does not ap- ply. In Indiana Oil, Gas & Develop- ment Co, V. McCrory, 42 Okl. 136, 140 Pac. 610, the court intimated that under certain circumstances a forfeiture of an oil well might be decreed; but under the circum- stances of the particular case where it appeared that the lessor had been paid $10,000 in royalties, the court refused to cancel the lease on ac- count of bad judgment in doing the work, or even reckless management of the property by a subtenant. In St. Louis Union Trust Co. v. Gallo- way Coal Co., 193 Fed. 106, a suit to forfeit a mining lease for breach of covenants, the court held that the failure to pay royalties was not a ground for declaring a forfeiture 875 CONCERNING PENALTIES AND FOKFEITURES. §460 reality.* Thus a court of equity may, by its restraining decree or injunction, compel the observance of stipulations in the nature of conditions by which some restraint is im- posed upon the use or occupation of land conveyed, such as the provisions in a deed by which the grantee is for- bidden to build in a certain manner, or to use the prem- ises for certain purposes, thereby creating a servitude in where there is no bad faith and de- fendant is solvent. The court also held that neither the failure to prop- erly develop the mine nor to work continuously was a ground for de- claring a forfeiture when the proper method was largely a matter of judg- ment and no fraud or bad faith was shown. That a mining lease might be declared forfeited was held in Cherokee Construction Co. v. Bishop, 86 Ark. 489, 126 Am. St. Rep. 1098, 112 S. W. 189. In Brewster v. Lan- yon Zinc Co., 140 Fed. 801, 72 C. C. A. 213, the court, in its syllabus, shows facts authorizing the relief: "A forfeiture of an oil and gas lease was incurred under circumstances which do not entitle the lessee to re- lief in equity. Although actually terminated by the fault of the lessee and the assertion of a forfeiture by the lessor, the lease appears, as spread upon the public records and as claimed by the lessee, to be still effective as a disposal of all the oil and gas on the lessor's land. It em- barrasses, if it does not prevent, the exercise of the right to make other disposition of these minerals, and this at a time when they are being exhausted by the lawful multiplica- tion and operation of wells on sur- rounding lands. The lessor is in pos- session, save of a small portion of the land occupied by the lessee in the operation of a single gas well which it has drilled. The state statute permits the defeated party in eject- ment to demand and obtain a second trial as matter of right. Held, that a bill disclosing these facts states a case which calls for a measure of relief not attainable at law, and which entitles the lessor to a decree giving effect to the forfeiture by its establishment as matter of record and by the cancellation of the lease as a cloud upon the title." Mere de- lay in paying royalties, where no damage, is not sufficient to author- ize the court in declaring a forfeit- ure: Pheasant v. Hanna, 63 W. Va. 613, 60 S. E. 618. § 460, (a) Quoted in Moberly v. City of Trenton (Mo.), 81 S. W. 169; Spies V. Arvondale & C. E. Co., 60 W. Va. 389, 55 S. K 464, Cited with approval to effect that there are no exceptions to the rule in Craig v. Hukill, 37 W. Va. 520, 16 S. E. 363; and cited in Cherokee Construction Co. v. Bishop, 86 Ark. 489, 126 Am. St. Rep. 1098, 112 S. W. 189; Dresser v. Hartford Life Ins. Co., 80 Conn. 681, 70 Atl. 39; Tarr v. Stearman, 264 111. 110, 105 N. E. 957; Mason v. Fichner, 120 Minn. 198, 139 N. W. 485; Lackland v. Hadley, 260 Mo. 539, 169 S. W. 275. In Negaunee Iron Co. V, Iron Cliffs Co. (Mich.), 96 N. W. 468, however, it is held that equity may recognize a forfeiture when it is only an incident of a past transaction. § 460 EQUITY JUEISPRUDENCE. 876 favor of adjacent land of the grantor. Compelling tlie per- formance of such a stipulation, which perhaps may be in the form of a condition, by restraining its violation, is plainly not the enforcement of a forfeiture.^ Again, a pro- vision in the form of a condition may be specifically enforced as though it was a simple covenant, but without any for- feiture. The agreement is thus treated as though it was not a condition, and its specific performance is in fact the very reverse of a forfeiture.^ SECTION n. CONCERNING ELECTION. ANALYSIS. § 461. Questions stated. §§ 462-4:65. Rationale of the doctrine discussed. § 463. In the Eoman law. § 464. Foundation, the presumed intention of the donor. § 465. The true foundation is the principle, He who seeks equity must do equity. §§ 466-470. Meaning, extent, and effects of the doctrine. § 466. Election in conformity with instrument of donation. §§467,468. Election in opposition thereto; rules; compensation. § 469. No election unless compensation can be made. § 470. Applies to all instruments of donation. §§471-505. Applications; classes of cases in which the necessity for an elec- tion does or does not arise. §472, Fundamental rule; what creates the necessity for an election. §§ 473-475. Subordinate rules of interpretation. §§473,474. Donor has only a partial interest; evidence of intention not ad- missible; a general gift raises no election. § 475. Other special rules of interpretation. § 460, 1 Gibert v, Peteler, 38 N. Y. 165, 97 Am. Dec. 785 ; Trustees, etc. V. Lynch, 70 N. Y. 440, 26 Am. Rep. 615, and cases cited; Lattimer V. Livermore, 72 N. Y. 147 ; Badger v. Boardman, 16 Gray, 559 ; Whitney V. Union R'y, 11 Gray, 359, 71 Am. Dec. 715 ; Linzee v. Mixer, 101 Mass. 512; Dorr v. Harrahan, 101 Mass. 531, 3 Am. Rep. 398. § 460, 2 Livingston v. Sickles, 8 Paige, 398, 7 Hill, 253 ; Carpenter v. Catlin, 44 Barb. 75; Leach v. Leach, 4 Ind. 628, 58 Am. Dec. 642. 877 CONCERNING ELECTION. § 461 §§ 476-486. First class: Donor gives property wholly another's. § 477. Ordinary case, gift of specific property. §§ 478-480. Under appointments in pursuance of powers. §§ 481-486. Where testator has attempted to give property by a will which is ineffectual. § 482. Infancy or coverture of testator. § 483. Will valid as to personal, invalid as to real, estate. § 484. Will invalid as to property in another state or country. § 485. Will devising after-acquired lands. § 486. Will of copyholds. §§487-505. Second class: Donor gives property in which he has a partial interest. § 488. The general doctrine. § 489. Donor owns only an undivided share. § 490. Donor owns only a future interest. § 491. Devise of lands encumbered. §§492-502. Dower; widow's election between dower and gifts hj her hus- band's will. § 493. The general rule. § 494. Contrary legislation in various states. §§ 495-502. Classes of testamentary dispositions. § 496. Express declaration. § 497. Devise of a part of testator's land to the widow, and the rest to others. § 498. Devise to the widow for life. § 499. Devise in trust to sell, or with a power of sale. § 500. Gift of an annuity, etc., to widow, charged upon the lands devised to others. § 501. Devise with express power of occupying, leasing, etc. § '502. Devise to widow and others in equal shares. §§ 503-505. Election in devises of community property. § 506. The remaining questions stated. §§507-510. Who may elect; married women; infants; lunatics. §§511,512. Eights and privileges of persons bound to elect. § 513. Time of election ; state statutes, §§514,515. Mode of election, express or implied; conduct amounting to an election, §§516,517, Effects of an election. §§ 518, 519. Equitable jurisdiction in matters of election, § 461. Questions Stated.^ — As I have already said in the preceding chapter, the equitable doctrine of election originates in inconsistent or alternative gifts, with the in- §461, (a) This chapter is cited, 62 W. Va. 231, 57 S. E'. 811. See- generally, in Moore v. Baker, 4 Ind. tions 461 et seg. are cited in Beetson App. 115, 51 Am. St. Rep. 203, 30 v. Stoops, 186 N. Y. 456, 9 Ann. Gas. N. E. 629; and in Tolley v. Poteet, 953, 79 N. E. 731. This paragraph § 461 EQUITY JURISPRUDENCE. 878 tention, either expressed or implied, that one shall be the substitute for the other, A court of equity, therefore, act- ing upon the fundamental principle that he who seeks equity- must do equity, as explained in a former section, declares that the donee is not entitled to both benefits, but to the choice of either, — to an election between them.i There are two cases, differing in their circumstances, but depending upon this one broad principle, which are to be considered, although the first of them only is usually included under the name "election"; the second will more properly be treated of under the title of satisfaction. 1. The owner of an estate, m an instrument of donation, either will or deed, uses language with reference to the property of another, which, if that property were his own, would amount to an effectual disposition of it to a third person ; and by the same instrument gives a portion of his own estate to that same proprietor whose rights of ownership he had thus assumed to transfer. Under these circumstances, an obligation rests upon that proprietor either of relinquishing (at least to the extent of indemnifying those whom he disappoints) the benefit conferred on him by the instrument, if he asserts his own inconsistent proprietary rights; or if he accepts that benefit, of completing the intended disposition, by transferring to the third person that portion of his own property which it purports to effect. 2 There is a particular branch of this case in which the doctrine of election may arise, not because a party has attempted to transfer prop- erty not his own, but where a testator has attempted to dispose of some of his oiun property by means of a will §461, 1 See ante, §395; Mr. Swanstou's note to Dillon v. Parker, 1 Swanst. 394; Snell's Equity, 178. § 461, 2 Mr. Swanston's note b to Dillon v. Parker, 1 Swanst. 394 ; Snell's Equity, 178. is cited in Sorenson v. Carey, 96 Couts, 42 Tex. Civ. App. 515, 98 Minn. 202, 104 N. W. 958. Sections S. W. 233 (reversed on appeal, 100 461, 462, are cited in Holland v. Tex. 232, 98 S. W. 236). 879 CONCERNING ELECTION. § 462 ineffectual for that purpose. ^ 2. If the person to whom, by an instrument of donation, a benefit is given, possesses at the same time a previous claim against the donor, and an intention appears that he shall not both enjoy the benefit and enforce the claim, the same equitable doctrine requires the donee to elect between his original and his substituted rights ; the gift being designed as a satisfaction of the claim, he cannot accept the former without renouncing the latter.^ It is to the first of these two eases that the doctrine of ' ' elec- tion," technically so called, applies, which will be examined in the present section. § 462. Rationale of the Doctrine. — The essential facts presenting an occasion for the doctrine of election are: A gives to B property belonging to C, and by the same instrument gives to C other property belonging to him- self. The equitable doctrine upon these facts, briefly, is: C has two alternatives: 1. He may elect to take under the instrument, and to carry out all its provisions ; he will then take A 's property, which was given to him, and B will take C's property. 2. He may elect against the instrument. In that case he will not wholly forfeit the benefits intended to be conferred upon him ; he must surrender only so much of such benefits as may be necessary to compensate B for the disappointment he has suffered by C's election to take against the instrument. ^ «■ The foundation of this doctrine is said by the early cases to be the intentio7i of the donor, either expressed in the instrument or implied by its terms ; § 461, 3 As where a testator, by the same will, has purported to devise his land to a third pei-son, and has bequeathed personal property to his heir at law, and the will is valid as one of personal estate, but ineffectual as one of real estate. § 461, 4 Snell's Equity, 178. § 462, 1 Gretton v. Haward, 1 Swanst. 409. 433, and the note of Mr. Swanston, in which the prior decisions are collected, and rules deduced from them are formulated. § 462, (a) This paragraph of the 51 N. J. Eq. 597, 40 Am. St. Rep. 532, text is cited in Hatterslev v. Bissett, 29 Atl. 187. § 463 EQUITY JURISPRUDENCE. 880 and the court, by requiring an election to be thus made, is said to be carrying into effect this assumed intention.^ Whether this be the correct explanation of the rule will be considered in subsequent paragraphs. As the doctrine of election is one of the most distinctive and remarkable features of equity jurisprudence, I purpose in my further treatment of it to explain, in the first place, its general meaning, scope, and effect; and in the second place, to de- scribe its particular applications, together with its limita- tions and exceptions as established by the course of decision. § 463. In the Roman Law. — The germ of the doctrine of election, as above stated, is confessedly to be found in the Roman law. The substance of a Roman testament con- sisted in the designation of some person who was thereby constituted the heir or universal successor to the testator, and a time was allowed him in which to decide whether he would accept or reject the inheritance. If he accepted, he not only acquired a title to all the property and assets of the deceased, but he also became subject to all the debts and liabilities of the testator, and substantially to all the legacies and bequests to particular individuals contained in the will. Among the burdens thus assumed by the heir was that of procuring for a legatee or giving to him the value of any particular subject-matter which the testator had be- queathed to him, knowing that it belonged to a third person. If a testator, besides appointing Titius his heir, had said, *'I bequeath to Claudius the house of Sempronius, situate at Tusculum," Titius, on accepting the inheritance, was bound either to purchase the house of Sempronius, and con- vey it to Claudius, or if that was impossible, to pay Claudius the appraised value of the house. This rule, however, only applied where the testator knew that the thing which he bequeathed was the property of another, and not if he erroneously supposed that it was his own. In that case the legacy would be simply void. This doctrine is stated in § 462, 2 Dillon v. Parker, 1 Swanst. 359, 394, note of Mr. Swanston. 881 CONCERNING ELECTION. § 464 the Institutes as follows: ''A testator may not only give as a legacy his own property, or that of his heir, hut also the property of others. The heir is then obliged either to purchase and deliver it, or if it cannot be bought, to give its value. . . . But when we say that a testator may give the goods of another as a legacy, we must be understood to mean that this can only be done if the deceased knew that what he bequeathed belonged to another, and not if he were ignorant of it ; since, if he had known it, he would not, per- haps, have left such a legacy." ^ In this respect, our equity jurisprudence differs widely from the Roman law, since the equitable doctrine of election applies, whether the donor was or was not aware that he was dealing with property not his own.* § 464. Presumed Intention of the Donor.a — In seeking the origin of the doctrine, and endeavoring to ascertain its true foundation, I will quote by way of illustration one of the earliest cases in which the question distinctly arose :^ *'A was seised of two acres, one in fee, t'other in tail; and having two sons, he, by his will, devises the fee-simple acre § 463, 1 Justinian's Institutes, lib. ii., tit. xx., § 4 : "Non solum autem testatoris vel heredis res, sed etiam aliena legari potest, ita ut beres coga- tur redimere earn et prjestare; vel si non potest redimere, sestimationem ejus dare Quod autem diximus alienam rem posse legari, ita in- telligendum est, si def unctus sciebat alienam rem esse, non et si ignorabat ; forsitan enim si seisset alienam, non legasset." The Frencb code entirely refuses to adopt tbe doctrine of election, and tbe bequest or donation of another's property would be void. Code Civil, § 1021 : "Lorsque le testateur aura legue la chose d'autrui, le legs sera nul, soit que le testateur ait connu, ou non, qu'elle ne lui appartenait pas." § 464, 1 Anonymous, Gilb. Eq. 15. §483, (a) The text is cited to this §464, (a) This paragraph of the effect in Barrier v. Kelly (Miss.), 33 text is cited in Hattersley v. Bissett, South. 974. This paragraph is also 51 N. J, Eq. 597, 40 Am. St. Rep. cited in Holland v. Gouts, 42 Tex. 532, 29 Atl. 187. Sections 464-471 Civ. App. 515, 98 S. W. 233 (reversed are cited in Drake t. Wild (Vt.), 3& on appeal, 100 Tex. 232, 98 S. W. Atl. 248. 236). 1—56 § 464 EQUITY JURISPRUDENCE. 882 to his eldest son, who was issue in tail; and he devised the tail acre to hib youngest son, and dy'd, the eldest son entered upon the tail acre; whereupon the youngest son brought his bill in this court against his brother, that he might enjoy the tail acre devised to him, or else have an equivalent out of the fee acre; because his father plainly designed him something. Lord Chancellor Coivper: This devise being designed as a provision for the youngest son, the devise of the fee acre to the eldest son must be under- stood to be with a tacit condition that he shall suffer the younger son to enjoy quietly, or else that the younger son shall have an equivalent out of the fee acre, and decreed the same accordingly."^ The rationale of the doctrine, as shown by this and other decisions, plainly appears to be that a court of equity implies a condition where none is expressed in the will, and annexes it to the donation. As Lord Chancellor Cowper says: ''The devise of the fee acre to the eldest son is understood to be with a tacit condition that he shall suffer the younger son to enjoy quietly." It should be remarked that this gives no real explanation, — adds nothing to the mere statement of the doctrine itself. When we say that equity implies a condition in the instru- ment annexed to the donation, we are, in fact, only stating the doctrine of election in other words ; the very obligation to elect consists in the conditional nature of the devise. Judge have therefore gone a step further back, and have said that the condition is implied, because such result — such tacit addition to the instrument — must be regarded as being in accordance with the actual intention of the testator or other donor. This, then, is said to be the foun- dation of the doctrine, — the actual intention of the donor assumed, from the nature of the gifts, to have existed. A disposition calling for an application of the doctrine of election may be made under two following different states of circumstances : Either the donor may know that the prop- §464, (b) The text is quoted in Battle v. Claiborne, 133 Tenn, 2S6, 180 S. W. 584. 883 CONCERNING ELECTION. § 464 erty which he assumes to deal with is not his own, but belongs to another, and notwithstanding such knowledge he may assume to give it away; or he may give it away, not knowing that it belongs to another, but erroneously and in good faith supposing that it is his own. In the first of these two cases, the presumption of an intention on the part of the donor to annex a condition to the gift calling for an election by the beneficiary plainly agrees with the actual fact ; at all events, it violates no probabilities. When a testator devises an estate belonging to A to some third person, and at the same time bestows a portion of his own property upon A, he undoubtedly must rely upon the bene- fits thus conferred upon A as an inducement to a ratifica- tion by A of the whole disposition. To give A the prop- erty which the testator was able to dispose of, and at the same time to allow him to claim his own estate, which had been devised to the third person, by his own paramount title, would be to frustrate the evident intention of the tes- tator. In the second case, where the testator, or other donor, erroneously supposes that the property which he undertakes to give away is in fact his own, the doctrine of election applies with the same force and to the same extent as in the former.^ Here it is in the nature of things simply § 464, 2 See Cooper v. Cooper, L. R. 6 Ch. 15, 16, 20. In the court of first instance, Vice-Chancellor Stuart held there was no case for an elec- tion. He said (p. 16, in note) : "In order to raise a case for election, there must be an attempted disposition of property over which the tes- tator has no disposing power, and a disposition of property of his own on such a footing as shows that he considered himself to have power to dispose of the former property." The vice-chancellor thus expresses an opinion that the doctrine of election only applies in the second case men- tioned in the text, namely, when the donor had acted under an erroneous supposition. This decision was reversed by the court of appeals. Lord Justice James thus states the doctrine (p. 20) : "The vice-chancellor ap- pears to have thought that there was some distinction between an invalid gift of property which the testator believed to be his own and an invalid gift of property which the testator knew not to be his own, but which he believed he had a power of appointment over, which he had not. I am unable to find any authority or any principle on which to rest this dis- § 464 EQUITY JURISPRUDENCE. 884 impossible that the donor could actually have had the inten- tion which the theory imputes to him, since he really be- lieves himself to have a disposing power of the property, 'or to be dealing with property which is his own.*^ And yet the earlier decisions, at least, regarded the presumed in- tention to annex a condition to the gift as the true founda- tion of the doctrine in this case as much as in the other.^ The course of reasoning through which the judicial mind passed in reaching these conclusions is very plain, and. as 1 think, very natural. In an early case of the first kind, where a testator had designedly assumed to devise prop- erty over which he knew that he had no disposing power, the court saw, and were compelled to see, an actual inten- tinction. It is in both cases in substance a disposition, or an attempted disposition, by will, of property over which the testator has no disposing power." See Ingram v. Ingram, cited in Kirkham v. Smith, 1 Ves. Sr. 258, 259 ; Thellusson v. Woodford, 13 Ves. 209, 220 ; Whistler v. Webster, 2 Ves. 367; Birmingham v. Kirwan, 2 Schoales & L. 444; Grissell v. Swinhoe, L. R. 7 Eq. 291. § 464, 3 The note of Mr. Swanston to the case of Dillon v. Parker, 1 Swanst. 359, 394, 401, has always been considered as an accurate state- ment of the doctrine and of the reasons upon which it is based. He reaches this conclusion, as applicable under all circumstances : "The foun- dation of the equitable doctrine is the intention, explicit or presumed, of the author of the instrument to which it is applied." The opinion of Lord Alvanley in Whistler v. Webster, 2 Ves. 367, 370, has always been looked upon as a leading one. He says : "The question is very short, — whether the doctrine laid down in Noys v. Mordaunt, 2 Vern. 581, Eq. Cas. Abr. 273, pi. 3, Gilb. Eq. 2, and Streatfield v. Streatfield, Cas. t. Talb. 176, has established this broad principle, viz., that no man shall claim any benefit under a will without conforming, as far as he is able, and giving effect to everything 1;ontained in it, whereby any disposition is made showing an intention that such thing shall take jolace, without reference to the circumstance whether the testator had any knowledge of the extent of his power or not. Nothing can be more dangerous than to speculate upon what he would have done if he had known one thing or another. It is enough for me to say he had such an intention; and I will not speculate upon what he would have intended in different eases jiut." § 464, (c) This paragraph of the case falling within the second cats- text is quoted extensively in Barrier gory stated by the author, v. Kelly (Miss.), 33 South. 974, a 885 CONCERNING ELECTION. § 465 tion of the testator to annex the tacit condition to his gift, and this intention was made the basis of tlie doctrine of election as applied under such circumstances. Wlien an- other case arose of the second kind, where the testator had acted under an erroneous supposition, the court, having con- cluded that the doctrine of election must also be applied here, naturally, and as a part of their verbal judicial logic, gave to it the same foundation in an assumed intention of the testator, although, under the circumstances, no such intention actually existed or could exist. The doctrine, therefore, although originally springing from an actual in- tention, and although professing always to be based upon the intention, is really independent of intention; while the language may still be repeated, that the court presumes an intention, no evidence would ever be admitted for the pur- pose of showing its existence or non-existence. In short, the doctrine of election has become a positive rule of the law governing the devolution and transmission of property by instruments of donation, and is invoked wholly irrespective of the intention of the donor, although in the vast majority of cases it undoubtedly does carry into effect the donor's real purpose and design. § 465. True Foundation. — What, then, is the real founda- tion? It is possible to answer this question. There is, in my opinion, a true rationale which at once relieves the doc- trine of election from all the semblance of technicality and untruth attaching to it when it is referred to a presumed intention, which prevents it from being regarded as a stretch of arbitrary power on the part of the court, and which shows it to be in complete harmony with the highest requirements of righteousness, equity, and good faith. I venture the assertion that the only true basis upon which the doctrine can be rested is that maintained in the pre- ceding chapter, namely, the grand principle that he who seeks equity must do equity. This principle has ordinarily been regarded simply as furnishing a guide to the courts in their apportionment of equitable relief among the par- § 466 EQUITY JURISPRUDENCE. 886 ties in a great variety of cases; but, as I have shown, it is also the undeniable source of certain distinctively equitable doctrines. There is no doctrine more unmistakably and completely derived from this grand principle than that of election. The whole theory and process of election is a practical application of the maxim, He who seeks equity must do equity. A party asserts his claim to certain prop- erty; in order that he may obtain any relief, he must ac- knowledge and make provision for the equitable rights of other parties derived from the same instrument, and to that end must make his election, so that in either choice those rights shall be preserved. The very election which he is obliged to make consists in the ''doing equity" to others which the principle demands. In this principle. He who seeks equity must do equity, is found a sufficient ex- planation and a solid foundation for the doctrine, which is thus seen to harmonize, in all its phases and applications, with the requirements of justice and good faith. ^ * § 466. Meaning, Scope, and Effects — Election in Con- formity With the Instrument. — Having thus ascertained the origin and foundation of the doctrine, I proceed to describe its true meaning, scope, and effect. This discussion will consist mainly in determining with accuracy the nature of the tacit condition imposed by the donor upon the gift which § 465, 1 Some writers and some judges, in treating "election" as based wholly upon the notion of a presumed intention, have described the doc- trine, in certain of its applications, as arbitrary and technical, and as an unwarrantable exercise of power by the court of chancery. In abandon- ing the theory of an "intention" as more formal than real, and in placing election upon a basis of principle, — He who seeks equity must do equity, — I have, I would venture to suggest, relieved it from these criticisms, and have shown that the early chancellors, in its invention and development, acted wisely, and in full accordance with the conceptions of a high mor- ality, upon which the whole system of equity jurisprudence is constructed. § 465, (a) The text is cited in thor's conclusions are also approved Penn v. Guggenlieimer, 76 Va. 839, in Barrier v. Kelly (Miss.), 33 South. 846; also, in Battle v. Claiborne, 133 974. Tenn. 286, 180 S. W. 584. The au- 887 CONCERNING ELECTION. § 467 he has made to the beneficiary whose property he also as- sumed to dispose of to another person. What is this con- dition? Lord Chancellor Cowper, in the case heretofore quoted, stated it very briefly, that ''the eldest son shall sutfer the youngest son to enjoy quietly, or else have an equivalent out of the fee acre." The tacit condition is thus always double and alternative in its form. Its effect is, that the donee, whose own property has also been given to another person, may elect either to take under and in con- formity with the will or other instrument of donation, or else to take against it. If he elects the first alternative, and takes under the will, then the condition simply requires him to carry out all the dispositions of that instrument. In other words, he receives the testator's property directly bestowed upon him as devisee, and at the same time con- veys his own estate to the other person designated by the will as the recipient of it. There is no difficulty in this case, no doubt or question concerning this alternative branch of the tacit condition ; the will or other instrument of donation is carried into effect in exact conformity with its disposi- tions.* § 467. Election in Opposition Thereto.— The only diffi- culty arises when the party upon whom the condition rests elects to take against the will. In such case he retains his own estate, which the will had assumed to bestow upon the other person, but of course cannot claim, to its full extent at least, the testator's property which the will had given to himself. "What is, then, the import of the tacit condition? It does not say he must take in conformity to the will, or else forfeit the testator's property given by it to him. If that were the effect of the condition, the forfeited prop- erty would either descend to the testator's heir, or be em- braced in the residuary clause of the will, and the third per- §466, (a) The text is cited in Penn Atl. 512; De Vitto v. Harvey, 262 V. Guggenheimer, 76 Va. 839, 846. 111. 66, 104 N. E. 168 (will gives life See, also, Job Haines Home for Aged estate determinable upon remar- People V. Keene (N. J. Eq.), 101 riage). § 467 EQUITY JURISPRUDENCE. 888 son intended by the testator to be benefited would receive nothing. The condition therefore says that he shall con- firm the will, or else, out of the testator's property given to him by the will, he shall make compensation to the third person, who is disappointed by his choice.^ The tacit con- dition imposing the obligation of an election upon one party contrives a means of satisfying the substantial rights of both parties, by compelling full equity to be done. This import of the condition imposed upon the donee who is to make the election is well stated in the following conclusions reached by Mr. Swanston, after a review of the authorities, in his well-known note to Gretton v. Haward,i yiz. : — § 467, 1 Gretton v. Haward, 1 Swanst. 409, 433, 441. The doctrine is ably stated in the following opinion of Sir Thomas Plumer, M. R., in this case, which has always been regarded as a leading one (p. 423) : 'Tew cases are to be found on the subject, but it must be acknowledged that the language of the great judges by whom it has been discussed pro- ceeds to the extent of ascribing to the court an equity to lay hold on the estate thus taken from the devisee by the principle of election, and dis- pose of it in favor of those whom he has disappointed; not merely tak- ing it from one, but, such is the uniform doctrine, bestowing it on the other, — a doctrine not confined to instances in which the heir is put to election, and which may be said to bring him within the operation of the general principle, but prevailing as a universal rule of equity, by which the court interferes to supply the defect arising from the circumstance of a double devise, and the election of the party to renounce the estate eifectually devised; and instead of pennitting that estate to fall into the channel of descent, or to devolve in any other way, lays hold of it, to use the expression of the authorities, for the purpose of making satisfac- tion to the disappointed devisee, — a veiy singular office; for in ordinary cases, where a legatee or devisee is disappointed, the court cannot give relief, but here it interposes to assist the party whose claim is frustrated by election. Such is the language of Lord Chief Justice De Grey, cited with approbation by Lord Loughborough : 'The equity of this court is to sequester the devised estate quousque till satisfaction is made to the dis- appointed devisee.' I conceive it to be the universal doctrine that the court possesses power to sequester the estate till satisfaction has been made, not permitting it to devolve in the customary course. Out of that §467, (a) The text is cited to tbis N. E. .537; Cooley v. Houston, 229 effect in Holdren v. Holdren, 78 Ohio Pa. 495, 78 Atl. 1129. St. 276, 18 L. R. A. (N. S.) 272, 85 889 CONCERNING ELECTION. § 468 1. That in the event of an election to take against the instrument, courts of equity assume jurisdiction to seques- ter the benefits intended for the refractory donee, in order to secure compensation to those wliom his election dis- appoints. 2. That the surplus after compensation does not devolve, as undisposed of, but is restored to the donee, the purpose being satisfied for which alone the court controlled his legal right. § 468. Compensation the Result. — In this general exam- ination of the doctrine there remains one more question to be considered. In any case for an election, where the party upon whom the necessity devolves elects to take in opposi- tion to the instrument of donation, and therefore retains his own estate which had been bestowed upon the third per- son, does he thereby lose all claim upon or benefit of the donor's property given to himself? or does he only lose such part of it or so much of its value as may be needed to indemnify the disappointed third person? In adjusting the equities between himself and the third person, must he necessarily surrender to that person the entire gift made to himself? or must he simply make adequate compensation? Few, if any, of the cases have required a decision of this question ;i and what has been said concerning it has chiefly sequestered estate so much is taken as is requisite to indemnify the dis- appointed devisee; if insufficient, it is left in his hands. In the case to which I have referred, Lord Loughborough uses the expression that the court 'lays hold of what is devised, and makes compensation out of that to the disappointed party.' ... It would be too much now to dispute this principle, established more than a century, merely on the ground of difficulty in reducing it to practice, and disposing of the estate taken from the heir at law without any will to guide it; for to this purpose there is no will; the will destined to the devisee, not this estate, but an- other; he takes by the act of the court (an act truly described as a strong operation) ; not by descent, not by devise, but by decree, — a creature of equity." § 468, 1 The reason is very plain. A person compelled to elect will generally be influenced, in making the election, solely by his own pecuni- § 468 EQUITY JURISPRUDENCE. 890 been by way of argument and of judicial dictum. The rule may be regarded, however, as settled by the weight of judicial opinion very strongly in favor of convpensating the donee who is disappointed by an election against the instru- ment. If the gift which he takes by way of substitution is not sufficient in value to indemnify him for that which he has lost, he of course retains the whole of it.^ ^ ary interests. If the property bequeathed to himself by a will is more valuable than his own, he naturally elects to take under the will, and lets his own estate go to the third person. If the proi^erty bequeathed to himself be less valuable than his own, he elects to take against the will," and retains his own. It is then of no consequence whether the principle adopted with reference to the bequest made to himself be forfeiture or compensation, since the whole subject-matter is insufficient to indemnify the disappointed legatee. In other words, the third person takes all the bequest in question, and must be satisfied with it, for he has no right to anything more. The question would arise in such a ease as the follow- ing: A testator bequeaths fifty thousand dollars to A, and devises to B an old family estate of which A is owner in fee, and which is worth only twenty thousand dollars. A, from attachment to the family estate, elects to keep it, and thus to take in opposition to the will. Is B then entitled to the whole fifty thousand dollars'? or only to twenty thousand dollars of it, — -the value of the estate which he loses by the election,— so that the balance of thirty thousand dollars would still belong to A? The latter alternative is the view taken by the weight of authority.* § 468, 2 Gretton v. Haward, 1 Swanst. 409, 423, 433, 441. See opinion of Sir T. Plumer, M. R., and note of Mr. Swanston, quoted ante, § 467 ; Rogers v. Jones, 3 Ch. Div. 688; Pickersgill v. Rodger, 5 Ch. Div. 163, 173. In Rogers v. Jones 3 Ch. Div. 688, under the peculiar circum- stances of the case, the question was actually decided, and the opinion was not a dictum. Jessel, M. R., said (p. 689) : "The doctrine of elee- §468, (a) This note ia cited in Hamilton, [1892] 1 Ch. 396; In re Barrier v. Kelly (Miss.), 33 South. Booth (Booth v. Eobinson), [1906] 2 974. Ch. 321; Bebout v. Quick, 81 Ohio §468, (b) This paragraph of the St. 196, 90 N. E. 162; Colvert v. text is cited and followed in Brown Wood, 93 Tcnn. 454, 25 S. W. 963. V. Brown, 42 Minn. 270, 44 N. W. The date for fixing the amount of 250; Hattersley v. Bissett, 51 N. J. compensation payable to legatees E'q. 597, 40 Am. St. Rep, 532, 29 Atl. who are disappointed by the election 187; Barrier v. Kelly (Miss.). 33 is the death of the testator, not the South. 974; and in Cotton v. Fletcher, time when the election is made: In 77 N. H. 216, Ann. Cas. 1915A, 1225, re Hancock (Hancock v. Pawson), 90 Atl. .jIO. See, also, Hamilton v. [1905] 1 Ch. 16. 891 CONCERNING ELECTION. § 469 § 469. A Fund from Which Compensation can be Made, Essential. — As the doctrine of election thus depends upon the principle of compensation, it follows as a necessary con- sequence that it will not be applicable in any case unless there is a fund given to the donee who is compelled to elect, from which a compensation can be made to the disappointed tion is this: that if a person whose property a testator affects to give away takes other benefits under the same will, and at the same time elects to keep his own property, he must make compensation to the person affected by his election to an extent not exceeding the benefits he receives." In Pickersgill v. Rodger, 5 Ch. Div. 163, 173, Jessel, M. R., speaking of a son of a testatrix to whom she had devised property, says (p. 173) : "Consequently, as between his (the son's) estate and her disappointed legatees, her disappointed legatees are entitled to put his estate to an elec- tion; that is, any disappointed legatee is entitled to say, 'You shall not have the benefit given to your estate by the will, unless I have made up to me an equivalent benefit to that which the testatrix intended me to take.' Sometimes this is called the doctrine of compensation, which is the mean- ing of the doctrine of election as it now stands. The disappointed legatee may say to the devisee, 'You are not allowed by a court of equity to take away out of the testatrix's estate that which you would otherwise be en- titled to, until you have made good to me the benefit she intended for me.' That means that no one can take the property which is claimed under the will without making good the amount; or in other words, as between the devisees and legatees claiming under the will, the disappointed legatees are entitled to sequester or to keep back from the other devisees or lega- tees the property so devised and bequeathed, until compensation is made. Thence arises the doctrine of an equitable charge or right to realize out of that property the sum required to make the compensation. If you follow out that doctrine, you will see that the person taking the prop- erty so devised or bequeathed takes it subject to an obligation to make good to the disappointed legatee the sum he is disappointed of. The very instrument which gives him the benefit gives him the benefit burdened with the obligation, and the old maxim, Qui sentit commodum sentire debet et onus, applies with the greatest force to such a case as this." The doctrine is here explained by the able master of rolls with his usual clear- ness and precision. The concluding sentences of the passage fully sus- tain the view maintained by me, that the whole doctrine is derived from the principle, He who seeks equity must do equity. In Howells v. Jenkins, 1 De Gex, J. & S. 617, 619, Turner, K J., stated this doctrine: "The true principle appears to me to be, that where a person elects to take against a will, the persons who are disappointed by that eleetioii are § 469 EQUITY JURISPRUDENCE. 892 parties, or which perhaps can be transferred as a whole to such parties. Thus in a case where, under a power to appoint to children, the father made an appointment im- properly, it was held by Lord Loughborough that any child, entitled in default of an appointment, might set it aside, although a specific share had been appointed to him; in other words, that no election was necessary. The lord chan- cellor said: "The doctrine of election never can be ap- entitled to compensation, out of the benefits given to him by the will, in proportion to the value of the interests of which they are disappointed." See, also, the following cases, which, either by judicial dicta or by deci- sion, sustain the rule as to compensation: Streatfield v. Streatfield, Cas. t. Talb. 176; Webster v. Metford, 2 Eq. Cas. Abr. 363; Bor v. Bor, 3 Brown Pari. C, Tomlins's ed., 167; Ardesoife v. Bennett, 1 Dick. 463; Lewis V. King, 2 Brown Ch. 600; Freke v. Barrington, 3 Brown Ch. 274, 284 ; Whistler v. Webster, 2 Ves. 367 ; Ward v. Baugh, 4 Ves. 623 ; Lady Caven v. Pulteney, 2 Ves. 544, 560; Blake v. Bunbury, 1 Ves. 514, 523; Welby V. Welby, 2 Ves. & B. 190, 191 ; Dashwood v. Peyton, 18 Ves. 27, 49; Tibbits v. Tibbits, Jacob, 317; Lord Rancliffe v. Parkyns, 6 Dow. 149, 179 ; Ker v. Wauchope, 1 Bligh, 1, 25 ; Padbury v. Clark, 2 Maen. & G. 298; Greenwood v. Penny, 12 Beav. 403; Grissell v. Swinhoe, L. R. 7 Eq. 291 ; Spread v. Morgan, 11 H. L. Cas. 588 ; Cauffman v. Cauffman, 17 Serg. & R. 16, 24, 25 ; Philadelphia v. Davis, 1 Whart. 490, 502 ; Stump V. Findlay, 2 Rawle, 168, 174, 19 Am. Dec. 632; Lewis v. LeAvis, 13 Pa. St. 79, 82, 53 Am. Dec. 443; Van Dyke's Appeal, 60 Pa. St. 4S1, 490; Sandoe's Appeal, 65 Pa. St. 314; Key v. Griffin, 1 Rich. Eq. 67; Man-iott V. Sam Badger, 5 Md. 306 ; Maskell v. Goodall, 2 Disn. 282 ; Roe v. Roe, 21 N. J. Eq. 253; Estate of Delaney, 49 Cal. 77; Tienian v. Roland, 15 Pa. St. 430, 451; Wilbanks v. Wilbanks, 18 111. 17.« Lapse of time, and the interests of third persons who have purchased, may render an election absolute, and prevent a payment of compensation, instead of the property itself. See Fulton v. Moore, 25 Pa. St. 468, 476. The following are the most important cases and text-writers containing dicta in favor of the rule that, by an election against a will, the donee §468, (c) See, also, Estate of purpose of confirming the will, either Vance, 141 Pa. St. 201, 33 Am. St. because such interest is not assign- Eep. 267, 12 L. R. A. 227, 21 Atl. able or because the assignment of it 643. The doctrine of compensation would involve a breach of trust, the does not apply to the case of a per- court will not award compensation son electing to take under the will; to the disappointed legatee: In re thus, where the person so electing Lord Chesham, L. R. 31 Ch. Div. 466. cannot assign his interest, for the 893 CONCERNING ELECTION. § 47C plied but where, if an election is made contrary to the will, the interest that would pass by the will can be laid hold of to compensate for what is taken away ; therefore, in all cases there must be some free, disposable property given to the l")erson, which can be made a compensation for what the tes- tator takes away. ' ' ^ This is not, however, any new and additional requisite ; it is merely a statement, in a somewhat different form, of the fundamental doctrine, that, in order to create the necessity for an election, the donor must give to B some property which actually belongs to A, and must at the same time give to A some property of his own.^ §470. Doctrine Applies Both to Wills and Deeds.— It may be added that the doctrine of election, as generally de- scribed in the foregoing paragraphs, applies to all instru- ments of donation, — to deeds, settlements, and the like, as loses or forfeits his right to all the property of the testator given to him : Cowper V. Scott, 3 P. Wms. 124; Cookes v. Hellier, 1 Ves. 235; Morris v. Burroughs, 1 Atk. 404; Pugh v. Smith, 2 Atk. 43; Wilson v. Mount, 3 Ves. 194; Wilson v. Townsend, 2 Ves. 697; Broome v. Monck, 10 Ves. 609; Thellusson v. Woodford, 13 Ves." 220; Villareal v. Lord Galway, 1 Brown Ch. 292, note ; Green v. Green, 2 Mer. 86 ; also note by Mr. Jacob, in his edition of Roper on Husband and Wife, vol. 1 ; and Lord St. Leon- ards, in 2 Sugden on Powers, 7th ed., 145.* Many of these cases are no doubt to be explained by the fact that ordinarily when a donee elects to take against the will, and thus to retain his own property, the gift to himself made by the testator is not of sufficient value to indemnify the disappointed parties, and of course they then take it all, and there is no possible room for any compensation. § 469, 1 Bristow v. Warde, 2 Ves. 336. See, also, In re Fowler's Trusts, 27 Beav. 362; Box v. Barrett, L. R. 3 Eq. 244; Banks v. Banks, 17 Beav. 352 ; Blacket v. Lamb, 14 Beav. 482 ; Langslow v. Langslow, 21 Beav. 552. § 468, (d) See, also, Ashelford v. land which she already owned in her Chapman, 81 Kan. 312, 105 Pac. 534, own right, and the rest of his gift and cases cited, as to election by to her was no more than she was en- widow under the statutes: § 494, titled to as dower, inasmuch as there jxist. was no fund from which compensa- § 469, (a) The text is quoted and tion could be made, a case was not illustrated in Hunter v. Mills, 29 presented for election: Bell v. Nye, S. C. 72, 6 S. E. 907. Where testator 255 111. 283, 42 L. R. A. (N. S.) 1127, devised to his widow a life estate, and note, 99 N. E. 610. with remainder to the children, in §§471,472 EQUITY JUEISPEUDENCE. 894 well as to wills, — although the cases involving it have most frequently arisen under wills. ^ ^ It is also applicable to interests which are remote, contingent, partial, or of small Value, as well as to those which are immediate, certain, complete, and of great value. ^ § 471. Applications — Cases for an Election Classified. — Plaving thus, according to the arrangement announced in a former paragraph, explained the origin, general scope, meaning, and effect of the doctrine, I shall now proceed to consider it with respect to its practical applications, its limitations, and exceptions. In other words, I shall de- scribe the particular cases in which the necessity for an election does or does not arise, and the rules which deter- mine and regulate them. In pursuing this branch of the subject, I shall state first in order those rules which are universal in their application, and in determining the neces- sity for an election or not in all instances, and shall then enumerate and classify the cases which have been settled by the courts in pursuance of these rules. § 472. Fundamental Rule. — The first and fundamental rule, of which all the others are little more than corollaries, is: In order to create the necessity for an election, there must appear upon the face of the will itself, or of the other § 470, 1 Llewellyn v. Mackworth, Bam. Ch. 445 ; Bigland v. Huddles- ton, 3 Brown Ch. 286, note; Moore v. Butler, 2 Schoales & L. 266; Bir- mingham V. Kirwan, 2 Schoales & L. 450; Green v. Green, 2 Mar. 86; Bacon v. Crosby, 4 De Gex & S. 261; Cumming v. Forrester, 2 Jacob & W. 345; Anderson v. Abbott, 23 Beav. 457; Mosley v. Ward, 29 Beav. 407. The cases of election so frequently arise from wills that the general rules concerning it have sometimes been laid down, especially by Ameri- can courts, in language which appears to confine it to those instruments. § 470, 2 Webb v. Earl of Shaf tsbury, 7 Ves. 480 ; Greaves v. Forman, cited 3 Ves. 67; Highway v. Banner, 1 Brown Ch. 584; Wilson v. Town- shend, 2 Ves. 697; but see Bor v. Bor, 3 Brown Pari. C, Tomlins's ed., 178, note, per Lord Hardwicke. § 470, (a) The text is cited to this See, also, Barrier t. Kelly (Miss.), effect in Packard v. De Miranda 33 South. 974. (Tex. Civ. App.), 123 S. W. 710. 895 CONCEENING ELECTION". § 472 instrument of donation, a clear, unmistakable intention, on the part of the testator or other donor, to dispose of prop- erty which is in fact not his own. This intention to dis- pose of property which in fact belongs to another, and is not within the donor's power of disposition, must appear from language of the instrument which is unequivocal, which leaves no doubt as to the donor's design; the neces- sity of an election can never exist from an uncertain or dubious interpretation of the clause of donation.^ It is the settled rule that no case for an election arises unless the gift to one beneficiary is irreconcilable with an estate, interest, or right which another donee is called upon to relinquish ; if both gifts can, upon any interpretation of which the language is reasonably susceptible, stand together, then an election is unnecessary.^ The instrument may declare in express terms that the gift to A must be accepted by him in lieu of his own interest, which is thereby transferred to B, and then no possible doubt could exist. But this direct mode of exhibiting the donor's purpose is not indispensable. It is sufficient if the dispositions of the instrument, fairly and reasonably interpreted, exhibit a clear intention of the donor to bestow upon B some estate, interest, or right of property, which is not the donor's, but which belongs to A, and at the same time to give to A some benefits derived from the donor's own property.^ <^ It is immaterial, however, § 472, 1 Forrester v. Cotton, 1 Eden, 531 ; Judd v. Pratt, 13 Ves. 168, 15 Ves. 390; Dashwood v. Peyton, 18 Ves. 27; Blake v. Bunbury, 1 Ves. 514, 4 Brown Ch. 21 ; Rancliffe v. Lady Parkyns, 6 Dow, 149, 179 ; Dillon V. Parker, 1 Swanst. 359, Jacob, 505, 7 Bligh, N S., 325, 1 Clark & F §472, (a) The text is quoted in § 472, (c) The text is cited in Bible Penn v. Guggenheimer, 76 Va. 839, v, Marshall, 103 Tenn. 324, 52 S. W. 846; and in Herrick v. Miller, 69 1077; and Fifield v. Van Wyck, 94 Wash. 456, 125 Pac. 974. Va. 557, 562, 64 Am. St. Rep. 745, 27 §472, (b) The text is quoted in S. E. 446; both to the effect that Battle V. Claiborne, 133 Tenn. 286, no case is presented for an election 180 S. W. 584; Herrick v. Miller, 69 where the donor does not attempt to Wash. 456, 125 Pac. 974; cited, in dispose of property not his own. Gulf, C. & S. F. Ry. Co. v. Branden- Cited, also, in Gulf, C. & S. F. Ry. burg (Tex. Civ. App.), 167 S. W. 170. Co. v. Brandenburg (Tex. Civ. App.), § 472 EQUITY JURISPRUDENCE. 896 whether the donor knew the property not to be his own, or erroneously conceived it to be his own ; for in either case, if 303; Jervoise v. Jervoise, 17 Beav. 566; Padbnry v. Clark, 2 Macn. & G. 298; Lee v. Egremont, 5 De Gex & S. 348; Wintour v. Clifton, 21 Beav. 447, 8 De Gex, M. & G. 641; Stephens v. Stephens, 3 Drew. 697, 1 De Gex & J. 62; Box v. Barrett, L. R. 3 Eq. 244; Dummer v. Pitcher, 2 Mylne & K. 262; Shuttleworth v. Greaves, 4 Mylne & C. 35; Maxwell v. Maxwell, 2 De Gex, M. & G. 705, 16 Beav. 106; Pickersgill v. Rodger, 5 Ch. Div. 163, 170; Orrell v. On-ell, L. R. 6 Ch. 302, 304; Wilkinson v. Dent, L. R. 6 Ch. 339, 340 ; Thompson v. Burra, L. R. 16 Eq. 592, 601 ; Wollaston v. King, L. R. 8 Eq. 165; Maxwell v. Hyslop, L. R. 4 Eq. 407; Codrington v. Lindsay, L. R. 8 Ch. 578; McElfresh v. Schley, 2 Gill, 182, 201; Jones v. Jones, 8 Gill, 197; Waters v. Howard, 1 Md. Ch. 112; Hall v. Hall, I Bland, 130, 135; Wilson v. Arny, 1 Dev. & B. Eq. 376, 377; Pennsylvania Life Ins. Co. v. Stokes, 61 Pa. St. 136, 2 Brewst. 590; Weeks v. Weeks, 77 N. C. 421 ; Havens v. Sackett, 15 N. Y. 365 ; Thomp- son v. Thompson, 2 Strob. Eq. 48; O'Reilly v. Nicholson, 45 Mo. 160. The ground upon which the doctrine of election rests, and the condition of facts necessary to raise an election, were carefully considered in the recent case of Codrington v. Lindsay, L. R. 8 Ch. 578, 587, by Lord Sel- borne. He seems to reach the conclusion that there are two grounds, and two conditions of fact quite distinct from each other, which may create the necessity for an election. It was held that a married woman was bound to elect between certain benefits given to her by a marriage settle- ment and certain property of her own to which she was entitled independ- ently of the settlement, but which had been embraced within its terms. Lord Chancellor Selbome thus laid down the general doctrine (pp. 586- 588) : "I lay aside, as not directly relevant to the present question, the whole of that large class of oases of election upon wills, as to which Lord Eldon, in Dashwood v. Peyton, 18 Ves. 41, and other authorities, have said that *a clear intention on the part of the testator to give that which is not his property is always required.' ... I conceive the true rule for the decision of this case to be that which is so well stated by Lord Redesdale in Birmingham v. Kirwan, 2 Schoales & L. 444, 449, viz. : 'The general rule is, that a person cannot accept and reject the same in- strument; and this is the foundation of the law of election, on which courts of equity particularly have grounded a variety of decisions in cases both of deeds and wills, though principally in cases of wills, because 167 S. W. 170 (to give rise to an N. J. Eq. 597, 40 Am. St. Rep. 532, election, language must not bo am- 29 Atl. 187; Matter of Zahrt, 94 biguous). See, also, in general, N. Y. 605; Asche v. Asche, 113 N. Y. Wooley V. Scbracler, 116 III. 29, 4 232, 21 N. E. 70. N. E. 658; Hattersley v. Bissett, 51 897 CONCERNING ELECTION. § 472 the intention to dispose of it clearly appears, the necessity for an election exists. ^ ^ deeds being generally matter of contract, the contract is not to be inter- preted otherwise than as the consideration which is expressed requires.' The application of this rule is illustrated as to cases of voluntary deeds by Llewellyn v. Maokworth, Barn. Ch. 445, and Anderson v. Abbott, 2.3 Beav. 457; as to cases of contract for a valuable consideration resting in articles, by Savill v. Savill, 2 Coll. C. C. 721, and Brown v. Brown, L. R. 2 Eq. 481; and as to contracts for value completely executed by convey- ance and assignment, by Bigland v. Huddleston, 3 Brown Ch. 285, note ; Chetwynd v. Fleetwood, 4 Brown Pari. C, ed. of 1784, 435; Green v. Green, 2 Mer. 86; Bacon v. Cosby, 4 De Gex & S. 261; Mosby v. Ward, 29 Beav. 407; and Willoughby v. Middleton, 2 Johns. & H. 344. In two of these cases (Green v. Green, 2 Mer. 86, and Willoughby v. Middleton, 2 Johns. & H. 344), the husband's father was a party to an antenuptial settlement, and part of the consideration proceeded from him. Another (Chetwynd v. Fleetwood, 4 Brown Pari. C. 435), was a case of .settle- ment for value, not between husband and wife at all, nor in consideration of marriage. In all of them the party who, claiming by a title not bound by the deeds, thereby withdrew part of the consideration for which the deeds were intended to be made was held obliged to give up, by way of compensation, what he or she was entitled to under the deeds, or ex con- verso (as in Chetwynd v. Fleetwood, 4 Brown Pari. C. 435), was held bound, if taking the benefit of the deeds, to adopt and make good the contract forming the consideration for those benefits, as to matters by which, without such election, he would not have been bound." To the same effect, in Hyde v. Baldwin, 17 Pick. 303, 308, Shaw, C. J., said that it was a well-settled rule in equity that "a man shall not take any bene- ficial interest under a will, and at the same time set up any right or claim of his own, even if otherwise legal and well founded, which shall defeat, or in any way prevent, the full effect and operation of every part of the will." See, also, Smith v. Guild, 34 Me. 443, 447; Weeks v. Patten, 18 Me. 42, 36 Am. Dec. 696; Hamblett v. Hamblett, 6 N. H. 333; Glen v. Fisher, 6 Johns. Ch. 33, 10 Am. Dec. 310; Fulton v. Moore, 25 Pa. St. 468; Cauffman v. Cauffman, 17 Serg. & R. 16; Preston v. Jones, 9 Pa. St. 456 ; George v. Bussing, 15 B. Mon. 558 ; Buist v. Dawes, 3 Rich. Eq. 281. § 472, 2 Cooper v. Cooper, L. R. 6 Ch. 15, 16, 20; Grissell v. Swinhoe, L. R. 7 Eq. 291; Whistler v. Webster, 2 Ves. 370; Thellusson v. Wood- §472, (d) The text is cited in Va. 362; Barrier v. Kelly (Miss.), 33 Paulus V. Beach, 127 Mo. App. 255, South. 974. Compare Battle v. Clai- 104 S. W. 1149. See, also, to the borne, 133 Tenn. 286, 180 S. W. 584. Bame effect Moore v. Harper, 27 W. 1—57 § 473 EQUITY JUEISPRUDENCE. 898 § 473. Rule of Interpretation; Donor has a Partial Inter- est; Strong Leaning Against Election; Extrinsic Evidence of Intention. — The preceding rule is fundamental and uni- versal. In its application the courts have settled two or three important rules of interpretation, which aid them in arriving at the donor's intent in such instruments. Where the interest of the supposed donee, A, with which the donor assumes to deal, is a separate, distinct, certain estate, prop- erty, or right belonging to A individually and solely, and the language of donation identifies such estate, property, or right, and in terms of specific description bestows it upon another beneficiary, no doubt as to the donor's intention can exist; there is no room for interpretation; a case of election is necessarily presented. "Wliere, however, the subject-matter upon which the instrument operates is some- thing in which the donor himself has a partial interest, and the donee has also a partial interest in it, or the residue of the property in it, and the language of donation is sus- ceptible of a construction which would confine it to this partial interest of the donor, it is plain that a judicial interpretation is needed to ascertain the real intent. Under these circumstances, whenever the testator or other donor has a partial interest in the property dealt with, it is well settled that the courts will lean most strongly — as far as possible, it has been said — in favor of an interpretation which will confine his disposition to this his own interest, — an interpretation which will show an intention on his part to deal only by way of gift with this partial interest which he holds. In other words, the difficulty of establishing a case for an election, from the terms of a donation, is much greater where the donor has a partial interest in the prop- erty bestowed, than where he assumes to give an estate in ford, 13 Ves. 221; Welby v. Welby, 2 Ves. & B. 199; Whitley v. Whitley, 31 Beav. 173; Coutts v. Ackworth, L. R. 9 Eq. 519; Stump v. Findlay, 2 Rawle, 168, 174, 19 Am. Dec. 632; McGinnis v. McGinnis, 1 Ga. 496, 503. 899 CONCERNING ELECTION. § 473 which, as a matter of fact, he has no interest."^ ^ If the language of the donation is ambiguous, so that its correct interpretation is at all doubtful, it is now a firmly estab- lished rule that parol evidence of matters outside the in- strument cannot be admitted for the purpose of showing an intent of the donor to dispose of property which he knew did not belong to him, and thus to create the necessity for an election. The intent of the donor to dispose of that which is not his ought to appear upon the instrument. There were early decisions which acted upon another view, and received such evidence as controlling, but they have been completely overruled by subsequent authorities. Of course, extrinsic evidence is always admissible in such cases, as well as in all others arising upon wills and deeds, in order to show the surrounding circumstances, the nature and situ- ation of the property, the relations of the donor to the beneficiaries, and the like facts, which place the court in the shoes of the donor ; but such evidence can go no further. ^ ^ § 473, 1 Lord Rancliffe v. Lady Parkyns, 6 Dow, 185 ; Maddison v. Chapman, 1 Johns. & H. 470; Wintour v. Clifton, 8 De Gex, M. & G. 641, 650, per Turner, L. J.; Havens v. Sackett, 15 N. Y. 365. In Win- tour V. Clifton, 8 De Gex, M. & G. 641, 650, Turner, L. J., said: "The authorities, as I understand it, mean no naore than to point out forcibly the difficulty there is in raising a case of election where the testator has a limited interest in the property as to which the election is to be raised; and no doubt there is more difficulty in such cases than in the ordinary case of the disposition of an estate belonging to another person, and in which the testator had no interest, inasmuch as every testator must prima facie be taken to have intended to dispose only of what he had power to dispose of; and, as in order to raise a case of election, it must be clear that there was an intention on the part of the testator to dispose of what he had not the right or power to dispose of." See, also, cases in preced- ing note, and those cited subsequently, under the head of election, in case of dower and other partial interests. § 473, 2 Clementson v. Gandy, 1 Keen, 309 ; Smith v. Lyne, 2 Younge & C. Ch. 345; Honeywood v. Forster, 30 Beav. 14; Seaman v. Woods, 24 Beav. 372; Allen v. Anderson, 5 Hare, 163; Blake v. Bunbury, 1 Ves. §473, (a) The text is quoted in §473, (b) The text is quoted in Toney v. Spragins, 80 Ala. 541. See, Battle v. Claiborne, 133 Tenn. 286, also, Sherman v. Lewia, 44 Minn. 180 S. W. 584; cited to this effect in 107, 46 N. W. 318. La Tourette v. La Tourette, 15 Ariz. § 474 EQUITY JUEISPRUDENCE. 900 § 474. Rule of Interpretation; Donor has a Partial In- terest, and Makes a General Gift. — A second important rule of interpretation is, that where a testator has a partial in- terest in the subject-matter dealt with, a general devise of the property, or gift of the property described only in gen- eral terms or in a general manner, will ordinarily be con- strued as including and operating upon the partial interest alone or partial property held by the donor, and not as ex- tending to and disposing of the residuum of interest belong- ing to the donee. But it should also be observed that even where the language of the gift is thus general, the donor may otherwise show an intention by means of it to bestow the property or interest not absolutely his own.^ * 523; Stratton v. Best, 1 Ves. 285; Druce v. Denison, 6 Ves. 385; Dummer V. Pitcher, 2 Mylne & K. 262 ; Crabb v. Crabb, 1 Mylne & K. 511, 5 Sim. 25; Philadelphia v. Davis, 1 Whart. 490; Timberlake v. Parish, 5 Dana, 345; Waters v. Howard, 1 Md. Ch. 112; McElfresh v. Schley, 2 Gill, 182; Jones V. Jones, 8 Gill, 197. Notwithstanding this array of unanimous authorities, in the very recent ease of Pickersgill v, Rodger, 5 Ch. Div. 163, 170, where the only question for decision was whether a testatrix had created the necessity for an election, the very able and learned master of rolls, Jessel, used the following language : "The law upon this point I take to be well settled, and it is this: that before you attribute an in- tention to a testator or testatrix to dispose of that which does not belong to him or her, you must be satisfied from the form of the instrument that it does dispose of the property which does not belong to him or her; and that is all. The presumption, in the absence of evidence to the con- trary, is, that the testator, by his will, intends merely to devise or be- queath that which belongs to him. On the other hand, it is only a pre- sumption, which may be rebutted even by parol evidence; and it may be rebutted by evidence showing that, under a misapprehension of law, the testator believed that the property which did not belong to him did really belong to him." It is certainly dififieult to reconcile this passage with the decisions cited above in this note. § 474, 1 Wintour v. Clifton, 8 De Gex, M. & G. 641, 650; Shuttleworth V. Greaves, 4 Mylne & C. 35; Dummer v. Pitcher, 2 Mylne & K. 262; 200, Ann. Gas. 1915B, 70, 137 Pac. 318; Tracey v. Shumate, 22 W. Va. 426; McDonald v. Shaw, 92 Ark. 15, 474, 499; Atkinson v. Sutton, 23 W. 28 L. E. A. (N. S.) 657, 121 S. W. Va. 197. 935; Paulus v. Beach, 127 Mo. App. §474, (a) The text is cited in Mc- 255, 104 S. W. 1149. See, also, Sher- Donald v. Shaw, 92 Ark. 15, 28 L. B. man v. Lewis, 44 Minn. 107, 46 N. W. A. (N. S.) 657, 121 S. W. 935. See, 901 CONCERNING ELECTION. § 475 § 475. Other Particular Rules of Interpretation. — In addition to these somewhat general rules of interpretation, there are one or two particular rules which belong to this branch of the subject. No case for an election is presented Usticke V. Peters, 4 Kay & J. 437; Honeywood v. Forster, 30 Beav. 14; Johnson v. Telford, 1 Russ. & M. 244; Brodie v. Barry, 2 Ves. & B. 127; Maxwell v. Maxwell, 2 De Gex, M. & G. 705, 713, 16 Beav. 106; Orrell V. Orrell, L. R. 6 Ch. 302; Havens v. Sackett, 15 N. Y. 365; Hall v. Hall, 1 Bland, 130, 135; Gable v. Daub, 40 Pa. St. 217. And see cases cited subsequently, under the head of election in case of dower.'* Although the rule as stated in the text is supported by an overwhelming weight of authority, it is sometimes very difficult of application. I shall therefore refer to a few cases by way of illustration. The language of Turner, L. J., in Wintour v. Clifton, 8 De Gex, M. & G. 641, 650, gives the rule of the text in both of its branches: "I think that if the words of a will be such as to embrace different subjects, the context of the will may be resorted to for the purpose of ascertaining to which of these subjects the words were intended to apply; and I think that the question in every case upon the construction of a will must be. What was the intention of the testator'? and that if the intention can be collected from the context, it is the duty of the court to give effect to it, as much as if it was in tenns expressed, and no less so in eases of election than in other cases. The authorities on this point mean no more than to point out forcibly the difficulty there is in raising a case of election where the testator has a limited interest in the property as to which the election is to be raised; and no doubt there is more difficulty in such cases than in the ordinary case of the disposition of an estate belonging to another person, and in which the testator had no interest, inasmuch as every testator must prima facie be taken to have intended to dispose only of what he had the power to dispose of; and, as in order to raise a case of election, it must be clear that there was an intention on the part of the testator to dispose of what he had not the right or power to dispose of." In Maxwell v. Maxwell, 2 De Gex, M. & G. 705, 713, a testator by an English will in tei-ms gave "all his real and personal estate whatsoever and wheresoever," etc. This language was not sufficient by the Scotch law to embrace lands owned by the testator in Scotland, which therefore descended to his heir at law; and the only question was, whether by this general gift the testator iti- tended to embrace the Scotch lands, or to disjoose of the English prop- erty alone. Knight Bruce, L. J., said (p. 713) : "According to the prin- ciples or rules of construction which the English law applies, if not to also, In re Gilmore, 81 Cal. 240, 22 §474, (b) See vost, §§492-502. Pac. 655. § 475 EQUITY JURISPRUDENCE. 902 if the language of donation shows that the donor is doubt- ful whether the property belongs to himself or not, and that all instruments, at least to testamentary instruments liable to interpreta- tion, the generality, the mere universality, of a gift of property is not sufficient to demonstrate or create a ground of inference that the giver meant it to extend to ptoperty incapable of being given by the particular act. If he had specifically mentioned property not capable of being so given, the case is not the same." Cranworth, L. J., said (p. 715) : "I take the general rule to be that which was referred to by Sir John Leach, in Wentworth v. Cox, 6 Madd. 363, that a designation of the subject intended to be affected by an instrument in general words imports prima facie that property only upon which the instrument is capable of operat- ing." In Orrell v. Orrell, L. R. 6 Ch. 302, 305, which was a similar case, the testator gave "all the rest and residue of my real estate situate in any part of the United Kingdom or elsewhere." The court, while quot- ing and adopting the rule as laid down in Maxwell v. Maxwell, 2 De Gex, M. & G. 705, 713, held that the peculiar language of the testator, "in any part of," showed his intention to dispose of his Scotch lands as well as those in England, and therefore the rule did not apply. In Johnson v. Telford, 1 Russ. & M. 248, which resembled the two preceding cases. Sir John Leach thus stated the rule : "In the case of Brodie v. Barry, 2 Ves. & B. 127, the Scotch estate was mentioned in the will, and especially intended by the testator to pass thereby. In this will no notice whatever is taken of the Scotch estate, and the question is, whether it is clearly to be collected from the general words used that the testator meant to pass his Scotch estate. Where a testator uses only general words, it is to be intended he means those general words to be applied to such prop- erty as will in its nature pass by the will." In Honeywood v. Forster, 30 Beav. 14, a testator owned freeholds in fee, and was tenant in tail of the copyholds. They were intermixed; part of the copyholds were in his own occupation, and part, with parts of the freeholds, in the occupation of tenants upon leases at one rent. By his will he devised "all his real estates" to the defendants, and gave all the lands occupied by him to liis wife for life, and confirmed the tenants in their occupations for twenty-one years, and also gave benefits to the heir in tail of the copy- holds. The question for decision was, whether this heir in tail was put to an election between the copyholds descending to him as heir in tail and the benefits given by the will. Sir John Romilly, M. R., said : "If a testator says, 'I give all the property I have in the world to A B,' and he leaves a large legacy to his heir in tail, that will not raise a case of elec- tion against such heir, because the testator only gives what he has. It occurred to me at first that such was the character of the present will; but on the facts of the case being brought to my attention, it became 903 CONCERNING ELECTION". § 475 lie only intends to bestow it if it is his own; for example, where he directs a different disposition, in case it turns out plain that such was not the case. . . . [After recapitulating the provi- sions of the will and the situation of the property.] I think that in this state of circumstances, coupled with the fact of the nature and holding of the property, there is an intention shown on the face of the will to dispose of these copyholds away from the heir in tail." The heir was thei'efore held bound to elect. The cases of Dummer v. Pitcher, 2 Mylne & K. 262, and Shuttleworth v. Greaves, 4 Mylne & C. 35, well illustrate the rule of the text in both of its branches. In Dummer v. Pitcher, 2 Mylne & K, 262, the testator's will said: "I bequeath the rents of my leasehold houses and the interest of all my funded property or estate." The testator had in fact no funded property at the date of his will, but there was funded property originally belonging to his wife, and standing in the joint names of her and himself. After his death, the wife claimed this funded property by right of survivorship, and as she took benefits under the will, it was contended that she must elect between these benefits and her own funded property, which, it was claimed, the will had given away. Lord Chancellor Brougham held, affirming the decision of the vice- chancellor, that, although the testator had no funded property of his own at the date of his will, his words might well be construed as intended to apply to any funded property which he might have at his death, and that therefore he was not to be regarded as intending to dispose of the funded property standing in the joint names of himself and his wife, and belonging to her, and consequently that no case for an election arose. In Shuttleworth v. Greaves, 4 Mylne & C. 35, the will said: "I bequeath all my shares in the Nottingham Canal Navigation." At the time arid down to his death he had no such shares of his own, but had certain shares of that same canal company standing in the joint names of him- self and his wife, and really belonging to her. Under the like circum- stances and contention as in the last case, it was held that the words of bequest showed an intention to give away these very shares belonging to his wife, and therefore she was bound to elect. By comparing these two cases, the dividing line, though narrow, is seen to be really substantial. In the first, the words of gift were most general, not referring to or describing any specific property. In the second, the same words, although general with respect to amount, do apply to and describe certain specific property, and so clearly identify it that there could be no doubt of the testator's intention to bequeath it, — "all my shares," etc. See, also. Havens v. Sackett, 15 N. Y. 365. The American cases involving and illustrating this rule have generally been those where a testator has, in general terms, given land in which his wife held a dower right. Many of them will be found cited under subsequent paragraphs. § 475 EQUITY JURISPEUDENCE. 904 that he has no power to make the gift, or where he, in terms, makes the disposition, if he has tlie power to do so, or so far as he lawfully can, and the like.i ^ Since the necessity of an election is only created by something in the nature of a gift or disposition of property, it follows that an erroneous re- cital in a will, and misconception of the testator as to the effect of the rights of others, will not raise a case of elec- tion, though the testator, in consequence of his mistake as to those rights, gives more to one person than to another; the former is not bound to compensate the latter.^ ^ The doc- trine of election is not applicable to cases where the testator, erroneously thinking certain property is his own, gives it to a donee to whom in fact it belongs, and also gives him other property which is really the testator's own; for in such cases the testator intends that the devisee shall have both, though he is mistaken as to his own title to one.^ ^ Nor does the doctrine appl}^ unless the donee, who, it is claimed, ought to elect, is entitled in his own right to the property given to another, and not in his representative capacity; although, in effect, he may be beneficially interested ; as, for example, where he takes as his wife's administrator.* §475, iBor v. Bor, 3 Brown Pari. C, Tomlins's ed., 167; Church v. Kemble, 5 Sim. 525. § 475, 2 Box V. Barrett, L. R. 3 Eq. 244; Dashwood v. Peyton, 18 Ves. 41; Blake v. Bunbury, 1 Ves. 515, 523; Forrester v. Cotton, Amb. 388, 1 Eden, 532, 535; and see Langslow v. Langslow, 21 Beav. 552; Clarke, v. Guise, 2 Ves. 617, 618. § 475, 3 Cull V. Showell, Amb. 727. § 475, 4 Grissell v. Swinhoe, L. R. 7 Eq. 291; and see Cooper v. Cooper, L. R. 6 Ch. 15, in which Grissell v. Swinhoe, L. R. 7 Eq. 291, is explained. § 475, (a) Where the testator says, Ann. Cas. 563, 10 L. R. A. (N. S.) in effect, "If I am owner of the prop- 590, 111 N. W. 305. erty at the time of my death, I de- § 475, (b) See, also. Smith v. vise it to B," and the property in Smith, 113 Md. 495, 140 Am. St. Rep. fact belongs to A, no case is pre- ^35, 31 L. R. A. (N. S.) 922, 77 Atl. 975 sented for an election by A between , i. -I -i!. J T_ .t. § 475, (c) The text is quoted in such property and gifts made by the ^ ^ ^ „ .■■,,.;,, -s La Tourette v. La Tourette, 15 Ariz, will to A: Appleby v. Appleby, 100 ^^ ^^ ^ ^3^ p^^^ Mmn. 408, 117 Am. St. Rep. 709, 10 ^^q 905 CONCERNING ELECTION". §§476,477 § 476. First Class of Cases. — I shall now describe and discuss the most important of the cases which have arisen, and in respect of which it has been settled that the necessity for an election does or does not exist. By a line of separa- tion which the foregoing paragraphs show not to be merely arbitrary, I shall arrange these cases in two main divisions, namely: 1. Those where the donor assumes to give prop- erty belonging entirely to another, and in which he himself has no interest; 2. Those where the donor gives property in which he himself has a partial interest, while a partial interest therein is also held by another. First Class. — Cases in which the donor assumes to give specific property belonging entirely to another, where he himself has no interest in it, and no power of disposition over it. § 477. Ordinary Case: Gift of Specific Property.— The simplest case is that in which the donor, by language of de- scription sufficient to designate the subject-matter, and by terms of donation sufficient to effect a transfer if they oper- ated upon property of his own, bestows upon B some specific estate, interest, or fund, which in fact belongs entirely to A, and by the same instrument confers upon A some benefit out of the donor's own property. Under these circum- stances a case for an election always arises. The whole effect depends upon the question whether there is such a gift ; and if so, there is really no room for interpretation or construction. No discussion of this case is needed.^ §477, 1 Dillon v. Parker, 1 Swanst. 359, 376, 381, 394, and notes by Mr. Swanston, with the cases cited; Gretton v. Haward, 1 Swanst. 409, 413, 420, 425, 433, and notes with the cases cited: Noys v. Mordaunt, 2 Vern. 581 ; Streatfield v. Streatfield, Cas. t. Talb. 176, 1 Lead. Cas. Eq., 4th Am. ed., 503, 510, 541, and cases cited in notes of the English and American editors ; Blake v. Bnnbury, 4 Brown Ch. 21 ; Yilla Real v. Lord Galway, 1 Brown Ch. 292, note; Ardesoife v. Bennett, 1 Dick. 463; Whistler v. Webster, 2 Ves. 367 ; Ward v. Baugh, 4 Ves. 623 ; Lady Caven V. Pulteney, 2 Ves 544, 560; Dash wood v. Peyton, 18 Ves. 27, 49; Welby §478 EQUITY JURISPEUDENCE. 906 § 478. Cases of Election Arising Under Appointments in Pursuance of Powers. — As cases of this description are very- rare in the United States, a very brief and condensed treat- ment of the subject will suffice. Cases for an election may arise under appointments made in pursuance of powers. In the case of a void appointment by will to a stranger to the power, and a devise or bequest of the appointor's own property to the object of it, who takes also under the power as in default of appointment, such person must elect between what comes to him under the power from the default of a valid appointment, and the benefits conferred by the ap- pointor's will.i a Iji order to raise a case of election, where V. Welby, 2 Ves. & B. 190; Lord Rancliffe v. Parkyns, 6 Dow, 149, 179; Ker V. Wauchope, 1 Bligh, 1, 25."- And see cases cited in previous notes. §478, 1 Whistler v. Webster, 2 Ves. 367; Tomkyns v. Blane, 28 Beav. 423; England v. Lavers, L. R. 3 Eq. 63; Reid v. Reid, 25 Beav. 469. § 477, (a) This paragraph of the text is cited in Sorenson v. Carey, 96 Minn. 202, 104 N. W. 958. See, also, Moore v. Baker, 4 Ind. App. 115, 51 Am. St. Rep. 203, 30 N. E. 629; Beet- son V. Stoops, 186 N. Y. 456, 9 Ann. Cas. 953, 79 N. E. 731; Morath's Ex'r V Weber's Adm'r, 124 Ky. 128, 98 S. W. 321. In Fitzhugh v. Hubbard, 41 Ark. 64, a testator gave to his brother an indebtedness due from him, and the remainder of his estate to his sister. This indebtedness had in fact been transferred by the tes- tator before the execution of the will to the sister. Held, that the sister was bound to elect whether to con- firm the will, or renounce and hold the debt. In McCracken v. McBee, 96 Ark. 251, 131 S. W. 450, testator gave legacies to A, B, and C, and di- rected that the proceeds of a life in- surance policy of which A, B and C were beneficiaries should be paid to them and other persons; held, A, B and C must elect whether to take under or in opposition to the will. In Job Haines Home for Aged People V. Keene (N. J. Eq.), 101 Atl. 512, testator devised to his son land which was owned by himself and wife as tenants by the entirety, and gave the wife a life estate in the land and certain personal property; held, this put the widow to an elec- tion whether to take her property or the gift given by the will. §478, (a) See, also. White v. White, 22 Ch. Div. 555; In re Tan- cred's Settlement, [1903] 1 Ch. 715. So, when a testatrix by her will, pur- porting to exercise a power of ap- pointment which she erroneously sup- posed herself to possess, appointed property to which one J. was en- titled to third persons, and by a codicil gave J. other property, over which she had full testamentary power, J. is put to an election whether to take under or against the will; In re Brooksbank, 34 Ch. Div. 160. 907 CONCERNING ELECTION. § 479 the appointor appoints the property subject to tlie power to a stranger, he must give some property of his own to the object of the power ;2 for if no property be given but what is subject to the power, there is nothing out of which com- pensation can be made.^ ^ § 479. An object of two powers improperly excluded by an appointment under one is not debarred in consequence from claims upon the other, and no case of election arises. Thus if there are two powers, one exclusive and the other not, and there are several objects of both, an appointment of the whole fund under the exclusive power to A, who is an object of both powers, and an appointment of the whole fund under the non-exclusive power to other objects, ex- cluding A, will not prevent A's sharing in the property dis- posable of by the second power, which had been defectively appointed by reason of his improper exclusion, and he is not bound to elect.^ And where there are two powers, both exclusive, children and grandchildren being the objects of one, and children only of the other, and an appointment is made under the former to children only, and under the lat- § 478, 2 In re Fowler, 27 Beav. 362. § 478, 3 Bristowe v. Warde, 2 Ves. 336. In Coutts v. Ackwortli, L. R. 9 Eq. 519, a lady, on her marriage, appointed three thousand pounds to trustees, the interest to be paid to her husband for life, and after his decease the capital was to go over. The deed contained a power to revoke the trusts subsequent to the life estate of the husband. By her will, after marriage, she purported to revoke all the trusts of the deed, and gave one thousand pounds to her husband, and two thousand pounds to another person. It was held that the testatrix having revoked all the trusts of the deed, while the power of revocation only extended to the remainder after her husband's life estate, she had thus attempted to deal with his interest, and the husband was therefore obliged to elect between the one thousand pounds given him by the will and the interest on the three thousand pounds for his life given him by the original deed of appointment. § 479, 1 In re Aplin, 13 Week. Rep. 1062. §478, (b) See, to the same effect, Graham v. Whitridge (Md.), 57 Atl. 609. § 480 EQUITY JURISPRUDENCE. 908 ter to children and a grandchild (who is not therefore an object), the children are not compellable to elect, in order to give effect to the void appointment to the grandchild. 2 A case of election will not arise if a testator appointor merely requests or directs the appointees, who are also legatees of other property, to give the appointed property to strangers to the power.^ Nor will a case of election arise where the appointment is absolute, with a subsequent superadded direction or condition in favor of strangers.^ But a case of election does arise where the testator directs that the legacies which he also gives to the appointees shall be forfeited if the direction as to the appointed fund is not complied with.^ § 480. No case of election arises under a void appoint- ment, where the appointor declares that he makes it only § 479, 2 In re Fowler, 27 Beav. 362. § 479, 3 Blaekett v. Lamb, 14 Beav. 482. The reason of this rule was thus stated by Sir John Romilly, M. R. : "The superadded words used by the testator here neither are nor profess to be any appointment over the fund itself, but they purport to raise an obligation on the conscience of the person taking the benefit of the gift, to transfer that benefit, after his decease, to bis children. I am of opinion that if the words had been used by the testator with reference to a fund which was wholly within his own control, to deal with as he might think fit, these words would have created a trust, and that his children, taking the gifts under the will of the testator, would have taken them charged with the duty of dis- posing of them according to that will." § 479, 4 Woolridge v. Woolridge, 1 Johns. 63 ; Carver v. Bowles, 2 Russ. & M. 301; Churchill v. Churchill, L. R. 5 Eq. 44; Wollaston v. King, L. R. 8 Eq. 165; but see Moriarty v, Martin, 3 Ir. Ch. 26. In Woolridge v. Woolridge, 1 Johns. 63, the rule was laid down, "that where there was an absolute appointment by will in favor of a proper object of the power, and that appointment is followed by attempts to modify the interest so appointed in a manner which the law will not allow, the court reads the will as if all the passages in which such attempts are made were swept out of it for all intents and purposes." See Wallinger v. Wallinger, L. R. 9 Eq. 301. § 479, 5 King v. King, 15 Ir. Ch. 479 ; Boughton v. Boughton, 2 Ves. Sr. 12. 909 CONCERNING ELECTION. §481 in case he has the power to do so.i An appointee under two appointments, one of which becomes inoperative, is not bound to elect between the well-appointed fund and an interest to which he becomes entitled, as next of kin to the appointor, in the ill-appointed fund which devolves on such next of kin in consequence of the appointment of it proving to be inoperative. 2 a. § 481. Cases of Election Where a Testator has Attempted to Dispose of His Property by a Will Which is Ineffectual for That Purpose. — The cases falling under this head would arise where a testator had devised lands to a stranger, and had given a legacy to his own heir, but by reason either of the testator's personal incapacity, or of the imperfect exe- § 480, 1 Church v. Kemble, 5 Sim. 525. § 480, 2 Blaikloek v. Grindle, L. R. 7 Eq. 215; Rich v. Cockell, 9 Ves. 369. § 480, (a) In Albert v. Albert, 68 Md. 352, 12 Atl. 11, A. had a power of appointment over the estate of his father, J., conferred upon him by J.'s will. In his own will, A. mingled his own and his father's estate, and created certain trusts which, as to the property comprised in the J. es- tate, were void on account of per- petuities. Held, that those benefi- ciaries as to whose shares the trusts were in part void would be required to elect whether to take, under the will of J., their proportion of the property of the J. estate, and relin- quish all claim to participate in the estate of A., or to abide by the will of A. in its entirety. They could not claim both against and under the will. In In re Bradshaw, [1902] I Gh. 436, W. B. by his will gave prop- erty upon trust for the children of A. B. as A. B. should by will ap- point, and in default of appointment for the children equally. A. B. cove- nanted with the trustees of his mar- riage settlement to exercise the powers in a particular way. A. B. by his will made an appointment to his son for life with an appointment over which was void as transgressing the rule against perpetuities, and he also made a bequest of property of his own in favor of the son. The covenant was not satisfied by the terms of the will. Held, that A. B.'s son must elect between the interest bequeathed to him in the property of A. B. and his interest in default of appointment under the will of A. B. Held, also, that the covenant was void. In In re Oliver's Settlement, Evered v. Leigh, [1905] 1 Ch. 191, Farwell, J., refused to follow In re Bradshaw, inasmuch as election would aid a disposition which was illegal, as a violation of the rule against perpetuities; and the same holding was made by Warrington, J., in In re Beale's Settlement, Barrett V. Beales, [1905] 1 Ch. 256. § 482 EQUITY JURISPRUDENCE. 910 cution of the will, or of some special legal rule, the devise to the stranger is void, so that the land included in it would descend, while the gift to the heir is valid. The question would then be presented, whether the heir may take both the land descending to him on account of the devise being void and the legacy, or whether he must elect between the two, on the ground that if he accepts the benefits given him, he must confirm the will entirely. The various circum- stances which have given rise to cases of this sort are the following: The testator's personal incapacity, through in- fancy or coverture; the imperfect execution of the will, as one of lands ; a will leaving some lands entirely undisposed of to descend to the heir, while it gives other benefits to the heir; a will executed in one country or state, and effectual to carry all the testator's property therein, but which does not, on account of its not using appropriate language, carry his property situated in another country or state; and a will which does not carry after-acquired lands. These cases will be separately examined in the order thus given. It is important to be remembered, however, in this connection, that modern legislation has removed most of the occasions upon which these cases can arise, and such questions will hereafter be infrequent. Thus in very many of the states, statutes have conferred upon infants and married women the same capacity to make wills of real and of personal es- tate, and have prescribed exactly the same mode of exe- cuting wills of real and of personal property, and have abolished the common-law rule which excluded after- acquired lands from the operation of a devise. This legis- lation has made it impossible for most of the cases above mentioned to arise in the states where it exists. § 482. Infancy and Coverture of a Testator. — The rule applicable under these circumstances depends upon the doc- trine that, in order to create the necessity of election, there must be a disposition made or intended to be made by the donor by means of a valid instrument. As a universal proposition, an heir cannot be put to an election by the will 911 CONCERNING ELECTION. § 482 of his ancestor, "unless there is a disposition by a valid will ; and it does not arise if the testator is incapacitated by in- fancy or coverture, or if he attempts to dispose of property by a will not duly executed. ^ No case of election will be raised where there is a want of capacity to devise real estate by reason of infancy. Prior to modern statutes, therefore, where an infant, whose will was valid as to personalty, but invalid as to the realty, devised his real estate to a stranger, and gave a legacy to his heir at law, the heir at law was not obliged to elect between this legacy and the lands which descended to him through the invalidity of the devise; he could take both. 2 On the same ground, a case of election did not arise from the incapacity of the testator by reason of coverture. Under the old law, the only will which it was possible for a married woman to make was one executed by way of appointment under a power bestowed upon her. Where, therefore, a married woman, acting under a power, made a valid appointment by will to her husband, and also in the same will bequeathed to a stranger certain personal property, over which the power did not extend, the husband was not put to an election, but could retain the fund ap- pointed to him, and also claim the personal property which his wife had attempted to bequeath, and to which he was entitled by virtue of his right of succession as husband.^ Neither of these cases could readily occur at present, since an infant has the same power by statute in most states to make a will of real and of personal estate, and a married § 482, 1 Thellusson v. Woodford, 13 Ves. 223 ; Gardiner v. Fell, 1 Jacob & W. 22. § 482, 2 Hearle v. Greenbank, 3 Atk. 695, 715, 1 Ves. Sr. 298 ; Brodie V. Barry, 2 Ves. & B. 127 ; Sheddon v. Goodrich, 8 Ves. 481 ; Snelgrove v. Snelgrove, 4 Desaus. Eq. 274; Melchor v. Burger, 1 Dev. & B. Eq. 634; Kearney v. Macomb, 16 N. J. Eq. 189; Tongue v. Nutwell, 17 Md. 212, 229, 79 Am. Dec. 649 ; Jones v. Jones, 8 Gill, 197. § 482, 3 Rich V. Cockell, 9 Ves. 369 ; Blaiklock v. Grindle, L. R. 7 Eq. 215 i and see the American cases cited in the last preceding note. § 483 EQUITY JURISPRUDENCE. 912 woman is generally empowered to make a will of all her own property, real or personal.* § 483. Will Valid as to Personal Estate, but Invalid as to Lands. — The cases now to be considered are those in which the testator had full capacity to dispose of all his property, but by reason of his not complying with some rule of the law as to mode of execution or form of description, the will proved to be inoperative with respect to certain kinds of his property, which property therefore descended to his heir or devolved upon his successors, as in the absence of any will. Prior to statutes comparatively modern, a will of freehold estates in land required certain formalities in its execution, which were not necessary to the validity of a will of personal property. Under that condition of the law, it was a well-settled rule that where a testator, by a will not executed with the formalities requisite to pass freehold estates in land, purported to devise such freehold estates away from his heir to a stranger, and by the same will gave a legacy to his heir, the heir was not obliged to elect, but could take both the legacy and the lands which descended to him, notwithstanding the attempted devise. In other words, the law would not, in the absence of any express con- dition inserted in the will by the testator himself, impose any implied condition upon the heir, and thus compel him to carry out the supposed intent of the testator by conform- ing to all the dispositions of the will.^ This rule, however, § 483, 1 Sheddon v. Goodrich, 8 Ves. 481 ; Gardiner v. Fell, 1 Jacob & W. 22; Thellusson v. Woodford, 13 Ves. 220, 221; Wilson v. Wilson, 1 De Gex & S. 152; Kearney v. Macomb, 16 N. J. Eq. 189; Tongue v. Nutwell, 17 Md. 212, 219; 79 Am. Dec. 649; Jones v. Jones, 8 Gill, 197; Melehor v. Burger, 1 Dev. & B. Eq. 634; McElfresh v. Schley, 1 Gill, 181. While acknowledging this rule to be firmly established, able judges have expressed a strong opinion against its soundness in principle, viz. : Lord § 482, (a) As to election by the Act of 1882, see In re Karris (Lea- husband under the will of the wife croft v. Harris), [1909] 2 Ch. 206. since the Married Women's Property 913 CONCERNING ELECTION. § 484 does not apply where the legacy is given to the heir upon an express condition that if he disputes or does not comply with the whole of the will, he shall forfeit all benefit under it. In that case the condition is binding upon the heir, and if he accepts the legacy, he cannot claim the descended lands. This result, however, is not properly referable to the doctrine of election; it is merely a case of a gift with a condition annexed to it, so that unless the condition is ful- filled the gift is wholly inoperative.^ a The principal rule stated above, at the commencement of this paragraph, has become practically obsolete in the United States, as well as in England, 3 since by statutes the same modes of execution have been prescribed for wills of real and of personal property. § 484. Will Invalid in Another Country or State. — There is a second case which may and does arise in this country and in England, having been affected by no statute. A testator has property situated in two states or countries; he makes a will, the language of which, either by general or particular description, applies to both classes of prop- erty, by which he devises his lands away from his heir to a stranger, and at the same time gives a legacy or other benefit to his heir; the will is valid and operative by the Eldon, in Slieddon v. Goodrich, 8 Ves. 481, 496; Sir William Grant, in Brodie v. Barry, 2 Ves. & B. 127; and Lord Kenyou in Gary v. Askew, 1 Cox, 241. § 483, 2 It seems also that the condition may be shown from the whole tenor and fonn of the disposition, provided it shows a clear intent of the testator that the legacy depends upon the carrying out of his other attempted gifts: Boughton v. Boughton, 2 Ves. Sr. 12; Sheddon v. Good- rich, 8 Ves. 481, 496, per Lord Eldon; Melchor v. Burger, 1 Dev. & B. Eq. 634: Snelgrove v. Snelgrove, 4 Desaus. Eq. 274, 300; Jones v. Jones, 8 Gill, 197; Kearney v. Macomb, 16 N. J. Eq. 189; McElfresh v. Schley, 1 Gill, 181; Nutt v. Nutt, 1 Freem. Ch. 128. § 483, 3 Lord Langdale's Act, concerning wills, 1 Vict., c. 26. § 483, (a) The text is cited to this 557, 563, 64 Am. St. Rep. 745, 27 effect in Fifield v. Van Wyek, 94 Va. S. E. 446. 1—58 § 484 EQUITY JURISPRUDENCE. 914 law of tlie state or country in whicli it is made, so (hat all the testator's property situated therein is effectively dis- posed of; but, either from the neglect of proper modes of execution, or of the requisite form of description or dis- position, the will is not valid and operative by the law of the other state or country to carry the lands of the testator situated therein ; the attempted devise of the lands situated in that other country or state is therefore void, and the lands themselves descend to the heir at law. The question presented upon these facts is, whether the heir is bound to elect between the gift contained in the will and the de- scended lands, or whether he may retain both. It will be seen from the numerous decisions — English and American — that the answer to this question is made to depend upon a second, namely, whether the testator, by the language of description and disposition being sufficiently specific as ap- plied to the foreign lands, has shown a clear intent to in- clude those lands in his devise to the stranger; or, from his using more general language in describing the subject- matter dealt with, the testator has shown an intent, accord- ing to the settled rules of interpretation, to confine the oper- ation of his will to the property situated in the first state or country where the will was made, and which property he had the power to dispose of by means of that will. This is one of the cases to which the general rule of interpreta- tion laid down in section 473 is constantly applied by the courts. The cases in England have generally arisen upon wills made in England, and valid with respect to the tes- tator's property situated there, but invalid according to the peculiar law of Scotland, so that they were inoperative to carry the testator's heritable property, or landed estates, lying in that country. The English courts have settled the two following conclusions : If the language by which the testator describes and disposes of his property is general in its terms, and makes no specific reference to his Scotch heritable property, and contains no words or phrases which, by a reasonable interpretation, necessarily refer to such 915 CONCERNING ELECTION. § 484 property, then the general rule of construction governs the case, that the testator must be assumed to have intended to confine the dispositions to the property which he had the power to dispose of by that will, — namely, the English property. The Scotch heritable property is not disposed of, and was not intended to be disposed of, and the heir is not put to an election. In short, the case falls under the familiar rule stated in the last paragraph. ^ If, on the other hand, the testator makes an express reference to his Scotch property, or uses such specific language of description, that, upon a reasonable interpretation, he must have intended such a reference, and a clear intention is thereby shown to dispose of the Scotch as well as the English estate, then, although the disposition is void with respect to the Scotch heritable property, the heir at law is compelled to elect be- tween this property thus descending to him, and the benefits conferred upon him by the will.2 Similar cases have arisen §484, 1 Maxwell v. Maxwell, 2 De Gex, M. & G. 705; 16 Beav. 106 ;_ Johnson v. Telford, 1 Russ. & M. 244; Allen v. Anderson, 5 Hare, 163; Maxwell v. Hyslop, L. R. 4 Eq. 407; Lamb v. Lamb, 5 Week. Rep. 720. In Maxwell v. Maxwell, 2 De Gex, M. & G. 705, the language of descrip- tion and gift was, "all my real and personal estate, whatsoever and wheresoever." See extract from opinion, ante, § 474, note. In Johnson V. Telford, 1 Russ. & M. 244, the testator "gave, devised, and bequeathed all and every his real and personal estate whatsoever and wheresoever, which he was or should be seised or possessed of or entitled to." In Allen V. Anderson, 5 Hare, 163, the testator devised "all the rest and residue of his real, personal, and mixed estates, whatsoever and whereso- ever," etc. Held, this did not apply to a Scotch "heritable bond," which, by Scotch law, descended to the heir at law, and the heir was not bound to elect between the bond and the benefits under the will. In Maxwell V. Hyslop, L. R. 4 Eq. 407, the testator gave "all the residue of his real and personal estate," and this was held not to apply to a Scotch estate which descended to the heir. § 484, 2 Brodie v. Bari-y, 2 Ves. & B. 127; Orrell v. Orrell, L. R. 6 Ch. 302; Dewar v. Maitland, L. R. 2 Eq. 834; McCall v. McCall, Dru. 283, per Lord Chancellor Sugden. In Brodie v. Bari-y, 2 Ves. & B. 127, the language of the devise was, "all my estate, freehold, leasehold, copyhold, and other estates whatever, and wheresoever situated, in England, Scot- land, and elsewhere," and Sir William Graxit held that the intent was un- § 484 EQUITY JURISPRUDENCE. 916 ill this country upon wills executed in one state, and valid for all purjDOses by the law thereof, but not valid as effect- ive devises of land by the law of another state in which was situate real property owned by the testator. The same two- fold rule has been adopted and enforced by the American courts ; and it is plain that such cases may constantly arise from the varying legislation of different commonwealths.^ mistakable to dispose of the Scotch estates as well as the English, and tlierefore it was a case for an election. In Orrell v. Orrell, L. R. 6 Ch. 302, the language was, "all the residue of my real estate, situate in any part of the United Kingdom or elsewhere." The testator left estates in England and Scotland, but none in Ireland or Wales. The court of a,p- peal held that the intention to dispose of the Scotch property was suffi- ' ciently clear to require an election. This case unquestionably lies very near if not on the line which separates the two classes. See ante, § 474, note, where it is given more at large. In Dewar v. Maitland, L. R. 2 Eq. 834, the will, in express terms, devised estates in England and in the colony of St. Kitts, but being attested by only two witnesses, it was not effectual to pass the land in St. Kitts by the colonial law. The rule was Applied requiring the heir to elect between the lands thus descending to him, and the gifts made to him by the will.** § 484, 3 Jones v. Jones, 8 Gill, 197 ; Kearney v. Macomb, 16 N. J. Eq. 189 ; Van Dyke's Appeal, 60 Pa. St. 481, 489. In Jones v. Jones, 8 Gill, 197, the will was made in Pennsylvania, and was valid there; but was not' valid as a will of land in Maryland, because it was not executed in the presence of three witnesses. The court held that the heir was not bound to elect, but could claim the Maryland land inherited by him, and retain the legacy given by the will. In Van Dyke's Appeal, 60 Pa, St. 481, 489, the opinion of Mr. Justice Sharswood is such an able and exhaustive discussion of the doctrine as applied under these and analogous cir- cumstances that I shall quote fi-om it at some length. The testator gave legacies to his daughters which exhausted nearly all of his property in Pennsylvania, and gave his real estate in New Jersey to his sons. The will was valid in Pennsylvania, but not executed so as to be an effective will of lands in New Jersey. The daughters, therefore, unless compelled to elect, would receive all the Pennsylvania property as legatees, and their proportionate shares of the New Jersey estate as heirs. The sons brought a suit in equity to compel an election, and a conveyance of the estate in conformity with the will. Sharswood, J., after holding that the case was ])lainly one of equitable cognizance, falling within the equitable juris- § 484, (a) See In re De Virte-Vaiani v. de Virte, [1915] 1 Ch. &20. 917 CONCERNING ELECTION. § 485 § 485. Will Devising After-acquired Lands. — Still an- other case frequently arose under the former condition of the law, but which has become obsolete from the effect of modern legislation upon the construction and operation of wills, namely, that of after-acquired lands purporting to be devised by the testator, but in reality descending to the heir. Previous to the modern statutes on the subject, a will diction over trusts, said: "It may certainly be considered as settled in England that if a will pui-porting to devise real estate, but ineffectually, because not attested according to the statute of frauds, gives a legacy to the heir at law, he cannot be put to his election : Hearle v. Greenbank, 3 Atk. 695; Thellusson v. Woodford, 13 "Ves. 209; Buckeridge v. Ingram, 2 Ves. 652; Sheddon v. Goodrich, 8 Ves. 482. These cases have been recognized and followed in this countiy : Melchor v. Burger, 1 Dev. & B. Eq. 634; McElfresh v. Schley, 2 Gill, 181; Jones v. Jones, 8 Gill, 197; Kearney v. Macomb, 16 N. J. Eq. 189. Yet it is equally well established that if the testator annexed an express condition to the bequest of the personalty, the duty of election will be enforced: Boughton v. Boughton, 2 Ves. Sr. 12; Whistler v. Webster, 2 Ves. 367; Ker v. Wauchop, 1 Bligh, 1; McElfresh v. Schley, 2 Gill, 181. That this distinction rests upon no sufficient reason has been admitted by almost every judge before whom the question has arisen. Why an express condition should jjrevail, and one, however clearly implied, should not, has never been and cannot be satisfactorily explained. It is said that a disposition absolutely void is no disposition at all, and being incapable of effect as such, it cannot be read to ascertain the intent of the testator. But an express condition annexed to the bequest of the personalty does not render the disposition of the realty valid; it would be a repeal of the statute of frauds so to hold. How, then, can it operate any more than an implied condition to open the eyes of the court, so as to enable them to read those parts of the will which relate to the realty? and without a knowledge of what they are, how can the condition be enforced'?" He then quotes the language of several eminent judges, in which they express a strong dissent from the soundness of this distinction, in accordance with his own views, although admitting that it had become settled, viz., of Lord Kenyon, M. R., in Gary V. Askew, 1 Cox, 241 ; and of Sir William Grant, in Brodie v. Barry, 2 Ves. & B, 127; and of Lord Eldon, in Ker v. Wauchop, 1 Bligh, 1, and Sheddon v. Goodrich, 8 Ves. 482; and then proceeds: "Mr. Justice Ken- nedy has expressed the same opinion : 'When a condition is necessarily implied by a construction in regard to which there can be but one opinion, there can be no good reason why the result or decision of the court should not be the same as in the case of an express condition, and the donee § 485 EQUITY JURISPRUDENCE. 918 of real estate invariably spoke from -tlie date of its excfii- tion, and not from the testator's death. A testator conld not, by any form of words, however explicit and mandatory, bound to make an election in one case as well as in the other' : Phila- delphia V. Davis, 1 Whart. 510. There is another class of cases in Eng- land wholly irreconcilable with this shadowy distinction ; for the hcii- at law of a copyhold was formerly put to his election, though there had been no surrender to the use of the will. This was previous to 55 Geo. III., c. 192; 1 Lead. Cas. Eq. 239, note; yet, as Sir William Grant has remarked, 'a will, however executed, was as inoperative for the convey- ance of freehold estates' : Brodie v. BaiTy, 2 Ves. & B. 130. The precise point can never arise in this state, for, happily, our statute of wills wisely provides that the forms and solemnities of execution and proof shall be the same in all wills, whether of realty or personalty. The ease before us is of a will duly executed according to the laws of Pennsylvania, de- vising lands in New Jersey, where, however, it is invalid as to the realty, by not having three subscribing witnesses. A court of New Jersey might hold themselves, on these authorities, bound to shut their eyes on the devise of the realty, and consider it as though it were not written, and so they have held : Kearney v. Macomb, 16 N. J. Eq. 189. They might feel them- selves compelled to say, with Lord Alvanley, however absurdly it sounds: *I cannot read the will without the word "real" in it ; but I can say, for the statute enables me, and I am bound to say, that if a man, by a will unattested, gives both real and personal estate, he never meant to give the real estate': Buckeridge v. Ingram, 2 Ves. 652. But a statute of New Jersey has no such moral power over the conscience of a court of Penn- sylvania, to prevent it from reading the whole will upon the construction of a bequest of personalty within its rightful jurisdiction. We are deal- ing only with the bequests of personalty, and the simple question is, whether the testator intended to annex to them a condition. If without making any disposition whatever of the New Jersey estates, dying intes- tate as to them, he had annexed an express proviso to the legacies to his daughters, that they should release to their brothers all their right and title as heirs at law to these lands, it is, of course, indubitable that such a condition would have been effectual. We are precluded by no statute to which we owe obedience from reading the whole will, and if we see plainly that such was the intention of the testator, from carrying it into effect." The learned judge then cites and quotes from the facts and opinions in the English eases upon wills of estates situate in Scotland, which are referred to in the preceding note, viz. : Brodie v. Barry, 2 Ves. & B. 127; Maxwell v. Maxwell, 2 De Gex, M. & G. 705, and McCall v. McCall, Dru. 283, per Lord Chancellor Sugden; and proceeds: "In this state of the authorities we are clear in holding that we are not precluded 919 CONCERNING ELECTION. § 485 devise any lands of which he should become seised, or which he should purchase or acquire in any other manner, after the execution of the will ; the devise was wholly void, and the by force of the New Jersey statute from reading the whole will of the testator, in order to ascertain his intention in reference to his bequest of the personalty now in question. We are equally clear that it is a case for election. The intention of the testator does not rest merely upon the implication arising from his careful division of his property among his children in different classes, but he has indicated it in words by the clause, *I direct and enjoin on my heirs that no exception be taken to this will, or any part thereof, on any legal or technical account.' It is true that for want of a bequest over, this provision would be regarded as in ter- rorem only, and would not induce a forfeiture : Chew's Appeal, 45 Pa. St. 228. But, as has been often said, the equitable doctrine of election is grounded upon the ascertained intention of the testator, and we can resort to every part of the will to arrive at it. 'The intention of the donor or testator ought doubtless to be the pole-star in such cases; and wherever it appears from the instrument itself confeiTing the benefit, with a certainty that will admit of no doubt, either by express declaration or by words that are susceptible of no other meaning, that it was the intention of the donor or testator that the object of his bounty should not participate in it without giving his assent to everything contained in the instrument, the donees ought not to be permitted to claim the gift, unless they will abide by the intention and wishes of its author' : Philadelphia V. Davis, 1 Wliart. 510, per Kennedy, J. This, however, is not the only mode in which the equity of the case can be reached. The doctrine of equitable election rests upon the principle of compensation, and not of forfeiture, which applies only to the non-performance of an express con- dition. Besides, no decree of this court colild authorize the guardians of the minors to execute releases of their right and title to the New Jersey lands, which would be effectual in that state. The alternative relief prayed for in the bill is that which is most appropriate to the case." It was decreed that the sons — devisees — should receive out of the personal property bequeathed to the defendants — daughters — sums equal in value to the shares of the real property in New Jersey, which descended to the daughters, but which would have vested in the sons, if the will had been operative on such lands. This admirable judgment of Mr. Justice Shars- wood is in perfect harmony with the decision of the English court in Brodie v. Barry, 2 Ves. & B. 127, Orrell v. Orrell, L. R. 6 Ch. 302. and cases of that kind, since the devise of the New Jersey lands was made in express, specific terms of description and gift, and was not merely in- ferred from such general words as "all my real estate, whatever and wheresoever," and the like. § 485 EQUITY JURISPRUDENCE. 920 land descended to his heir. A question as to election by the heir was therefore presented by such a will, and exactly the same twofold rule was established by the decisions as in the case of a will purporting to devise estates situate in another country, but inoperative for that purpose. If the testator showed, by the language of description and gift, a clear intention to dispose of his after-acquired lands to a stranger, and by the same will gave some benefit to his heir, then the heir was obliged to elect between these after- acquired estates which would descend to him and the benefits conferred by the will; and this rule applied both to lands actually purchased after the date of the will and to those contracted to be purchased. ^ The converse of the rule was also well settled. If the words of description and gift were general, and not clearly pointing to after-acquired land, so that the testator's intention to dispose of such estates was not certain, was equivocal, there was no case for an elec- tion. 2 The same double rule has been adopted and enforced, under like circumstances, by the American courts.^ These questions cannot hereafter arise; for the rule itself has been rendered obsolete by the English statute,^ and by legis- § 485, 1 Chureliman v. Ireland, 1 Russ. & M. 250 ; 4 Sim. 520 ; Abdy v. Gordon, 3 Russ.. 278; Schroder v. Schroder, Kay, 571, 578; 18 Jur. 987; 24 L. J. Ch., N. S., 510, 513; Hanee v. Truwhitt, 2 Johns. & H. 216; Greenwood v. Penny, 12 Beav. 403 ; Thellusson v. Woodford, 13 Ves. 209,. 211 ; sub nom. Rendlesham v. Woodford, 1 Dow. 249. §485, 2 Johnson v. Telford, 1 Russ. & M. 244; Back v. Kett, Jacob, 534; and see Plowden v. Hyde, 2 De Gex, M. & G. 684, 687. § 485, 3 It must be conceded, however, that there is some conflict of opinion in the reasoning and conclusions of the few American decisions which have dealt with this question. The English rule was adopted, and the necessity of an election was distinctly affirmed, where the intent to dispose of after-acquired lands is clear, in McElfresh v. Schley, 2 Gill, 181; but see, for contraiy reasoning and dicta, Philadelphia v. Davis, 1 Whart. 490. It is abundantly settled that there is no case for an elec- tion, if the intent to devise the after-acquired lands is not clear: Phila- delphia V. Davis, 1 Whart. 490, 503; Hall v. HaU, 2 McCord Eq. 269, 299, 306. § 485, 4 1 Vict., c. 26, sec. 24. 921 CONCERNING ELECTION. § 486 lation of the American states, which have altered the com- mon-law doctrine, and have enacted that wills of real estate as well as of personal property shall speak from the time of the testator's death, and shall therefore carry after- acquired lands. § 486. Will of Copyholds. — Finally, a peculiar case arose in the English law, growing out of the species of estate and tenure known as copyhold, which should be briefly men- tioned. Previously to the act 55 Geo. III., c. 192,^ devised copyholds could only pass where they had been previously surrendered to the use of the owner's will. Whenever, therefore, a testator purported to devise unsurrendered copyhold property, it descended for want of a surrender to the heir, and a question arose whether such heir could claim both a legacy under the will and also the copyhold property. It was held in analogy with the cases described in the last two paragraphs, that if the testator showed an intent to dispose of the copyholds by his will, the heir was put to an election ;2 but if the devise was merely general in its form, and thus did not indicate a plain intention to include the copyholds, no necessity for an election existed. ^ This matter has been swept into oblivion by modern reform- atory legislation in England, and of course never had any existence in this country.* § 486, 1 Mr. Preston's Act. § 486, 2 Highway v. Banner, 1 Brown Ch. 584 ; Rumbold v. Rumbold, 3 Ves. 65; Pettiward v. Prescott, 7 Ves. 541; Unott v. Wilkes, Amb. 430; 2 Eden, 187. §486, 3 Judd V. Pratt, 13 Ves. 168; 15 Ves. 390. § 486, 4 These cases, however, and especially the last named (Judd v. Pratt, 13 Ves. 168; 15 Ves. 390) may be instructive upon the more impor- tant question, How far does general language of description and donation in a will show an intent on the part of the testator to deal with and dis- pose of a subject over which he has no power of disposition, — e. g., a partial interest, wife's dower, etc., — and thus to raise a case of election ? Many of the English and American decisions cited in the foregoing para- graphs upon wills devising land in another country, or after-acquired land, or copyholds, are extremely important and useful in questions of §§487,488 EQUITY JURISPRUDENCE. 922 § 487. Second Class. — Cases where property is given to B, in which the donor has only a partial interest, and a partial interest in it is held by A, and by the same instru- ment other property of the donor is conferred upon A. This class includes among others the particular cases in which the donor has only an undivided share in the prop- erty given ; where he has only a future interest in it, as, for example, a remainder or reversion in fee; where it is sub- ject to encumbrances or charges held by a party who also receives benefits; where a widow is entitled to dower, and is a devisee or legatee under her husband's will; and where a widow has an interest in ''community property," and receives benefits by her husband's will. § 488. General Doctrine. — The general doctrine which governs this class of cases has already been stated and illustrated.! ^ Wliere the testator has a partial interest in the property devised or bequeathed by his will, the neces- sity of an election is always much less apparent than where he purports to bestow property in which he has no interest whatever. In such cases it is a settled rule that courts will lean as far as possible in favor of an interpretation which shows an intention of the testator to give only the interest, estate, or share which he is enabled, by virtue of his own right, to deal with, or to give the property in its present condition, subject to all existing encumbrances and charges upon it. It requires a strong, unequivocal expression or in- dication of an intent on the part of the testator to bestow daily occurrence concerning election with respect to dower, undivided shares owned by the testator, and all other instances of a partial interest disposed of by means of general descriptive language. It is for this reason that I have stated the rules in the text, and the principles upon which they were rested, although the rules themselves have been abrogated by modem legislation. § 488, 1 See ante, §§ 473, 474, and note. §488, (a) The text, §§ 488^93, is Home for Aged People v. Keen© (N. cited in Pratt v. Douglas, 38 N. J. J. Eq.), 101 Atl. 512. Eq. 516, 536; and in Job Haines 923 CONCERNING ELECTION. § 488 the entire property, and not simply his own interest in it, or to bestow the property freed from its encumbrances and charges, in order to raise the necessity for an election. ^ ^ The affirmative branch of the rule is equally well settled, § 488, 2 Lord Rancliffe v. Lady Parkyns, 6 Dow, 185 ; Birmingham v. Kirwan, 2 Schoales & L. 444; Maddison v. Chapman, 1 Johns. & H. 470; Wintour v. Clifton, 8 De Gex, M. & G. 641, 650; Padbury v. Clark, 2 Macn. & G. 298 ; Dummer v. Pitcher, 5 Sim. 35, 2 Mylne & K. 262 ; Shut- tleworth v. Greaves, 4 Mylne & C. 35; Stephens v. Stephens, 1 De Gex 6 J. 62; Wilkinson v. Dent, L. R. 6 Ch. 339; Grissell v. Swinhoe, L. R. 7 Eq. 291; Havens v. Sackett, 15 N. Y. 365; Lewis v. Smith, 9 N. Y. 502, 61 Am. Dec. 706 ; Adsit v. Adsit, 2 Johns. Ch. 448, 7 Am. Dec. 539 ; Bull V. Church, 5 Hill, 206; Fuller v. Yates, 8 Paige, 325; Sandford v. Jack- son, 10 Paige, 266 ; Vernon v. Vernon, 53 N. Y. 351 ; Lef evre v. Lef evre, 59 N. Y. 435; Reed v. Dickerman, 12 Pick. 146; Morrison v. Bowman, 29 Cal. 337, 348; Peck v. Brummagim, 31 Cal. 440, 447, 89 Am. Dec. 195; De Godey v. Godey, 39 Cal. 157, 164; In re Buchanan's Estate, 8 Cal. 507; Beard v. Knox, 5 Cal. 252, 63 Am. Dec. 125; Burton v. Lies, 21 Cal. 91 ; In re Silvey's Estate, 42 Cal. 211. In the ease of Havens v. Sackett, 15 N. Y. 365, the doctrine is stated in so admirably clear and accurate a manner by Denio, C. J., that I shall quote from his opinion at some length. One Havens, the testator, being entitled, under the will of a deceased brother, to certain bank stocks, in case he should survive that brother's widow, bequeathed, by a codicil of his own will, to the plaintiff, ''the stocks given to me by my said brother after the decease of his widow." The testator also, by the same codicil, devised certain lands which he confessedly owned to his children, the defendants. The will of the testator's brother had given those same stocks to the testator's children (the defendants), in case their father should not survive the brother's widow. In fact, the testator died before the brother's widow, so that the bequest to the plaintiff of the stocks became nugatory, and they belonged to the defendants under the provisions of their uncle's wiU. The plain- tiff claimed that the defendants were bound to elect between the land given them by the Avill and the stocks which came to them under their uncle's will, but which their father had bequeathed to the plaintiff. The court of appeals, reversing the judgment of the supreme court, held that there was no necessity for an election. Denio, C. J., after stating the § 488, (b) The text is quoted in v. Spragins, 80 Ala. 541. See, also, La Toiirette v. La Tourette, 15 Ariz. In re Gilmore, 81 Cal. 240, 22 Pac. 200, Ann. Gas. 1915B, 70, 137 Pac. 655; Sherman v. Lewis, 44 Minn. 426; cited to this effect in Pratt v. 107, 46 N. W. 318. Douglas, 38 N. J. Eq. 516, 536; Touey § 488 EQUITY JURISPRUDENCE. 924 that if a testator is only entitled to a partial interest in the property, as where he owns an undivided share, or a future estate, or holds the property subject to some encum- brance or charge, and uses language of description and general rule as follows : "One who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all its provisions and renouncing every right inconsistent with it; for example, if a testator has affected to dispose of property not his own, and has given a benefit to the person to whom that projDerty belongs, the legatee or devisee accepting the benefit so given to him must make good the tes- tator's attempted disposition," — proceeded to apply the doctrine : "If the codicil can be so read that it shall appear that the testator intended only to dispose of his own contingent interest, or in other words, to dispose of the stock on condition that it should come to him by his surviving his sister-in-law, and that he did not attempt to do more, then it cannot be said that the plaintiff is disappointed by the defendants claiming their share of the stock, and the mle does not apply. Among the numerous cases which I have examined, I do not find any which presents this feature. It is indeed laid down that, in order to furnish a case for compelling an election, it must appear clearly and certainly that the interest attemjjted to be disposed of was such as the testator did not own. A person, it is said, is not, without strong indications of such an intent, to be understood as dealing with that which does not belong to him." He cites Dummer v. Pitcher, 2 Mylne & K. 262, 5 Sim. 35, stating the facts and decision of the court, and then proceeds: "The numerous class of cases in which a provision has been made for a wife by wUl, and not expressed to be in lieu of dower, and where the real estate has been devised to another by the same will, afford some light upon this question. At the first sight, a devise of a piece of land, or the direction in a will that a particular parcel of real estate should be sold to raise legacies, would seem to be hostile to the idea of a life estate existing in another in one third of the same land ; and therefore, where in such cases the will makes a provision for the wife, it would appear to be within the rule requiring her to elect, though it should not be stated in terms that the provision was in lieu of dower. But the courts have held that such a devise or direction is not inconsistent with or repugnant to the claim of dower, and hence that the husband is not in such cases to be understood to have attempted to dis- pose of the dower estate of the wife. The right of dower is a title para- mount to that of the husband, and when he devises the land, though with- out any qualifying words, an exception of the wife's right to dower is implied"; citing Adsit v. Adsit, 2 Johns. Ch. 448, 7 Am. Dec. 539; Church V. Bull, 2 Denio, 430, 43 Am. Dec. 754, 5 Hill, 207. 925 CONCEENING ELECTIOIT. § 488 donation, wHch shows an unmistakable intention on his part to dispose of the entire property, or the property free from the existing encumbrance or charge, and if the owner of tlie other part or holder of the encumbrance or charge also receives benefits under the will, then a case for an election by such beneficiary is presented. The grounds of the election in such cases were accurately stated by Lord Redesdale in a decision which has since been regarded as leading: ''The general rule is, that a person cannot accept and reject the same instrument, and this is the foundation of the law of election, on which courts of equity have grounded a variety of decisions in cases both of deeds and of wills. "3 This being the true criterion, it follows that, in order to create the necessity of an election in such cases, the dispositions of the will must so clearly indicate the tes- tator's intention to give something more than his own par- tial interest, that the enjoyment by the donee of the benefits conferred upon him, without carrying out the other pro- visions, would be an acceptance and a rejection at the same time of the same instrument.^ ^ I shall now show the man- ner in which these general doctrines have been applied to various particular conditions of fact, and the special rules which have been established with reference thereto. § 488, 3 Birmingham v. Kirwan, 2 Schoales & L. 444, 449. The ques- tion was, whether a widow was put to an election between a bequest con- tained in her husband's will and her dower estate in his lands which had been devised away. Lord Redesdale held that it is not necessary to use express words of exclusion, in order to put the widow to an election; but that a person cannot both accept and reject the same instrument, and if, from the whole will taken together, if was the manifest intention that the testamentary provision should be received in lieu of dower, it would make an election necessary. But the language of the will must not be doubtful nor ambiguous. § 488, 4 Parker v. Sowerby, 4 De Gex, M. & G. 321 ; Padbury v. Clark, 2 Macn. & G. 298; Wintour v. Clifton, 8 De Gex, M. & G. 641, 21 Beav. 447; Howells v. Jenkins, 1 De Gex, J. & S. 617, 2 Johns. & H. 706; Stephens v. Stephens, 1 De Gex & J. 62; Dummer v. Pitcher, 2 Mylne §488, (e) Brown v. Ward, 103 interest devises the fee); Ditch v. N. C. 178, 9 S. E. 300 (owner of life Sennott, 117 111. 362, 7 N. E. 640. § 489 EQUITY JUKISPKUDENCE. , 926 § 4S9. The Donor Owns Only an Undivided Share of the Property. — If a testator owning an undivided share uses language of description and donation which may apply to and include the whole property, and by the same will gives benefits to his co-owner, the question arises whether such co-owner is bound to elect between the benefits conferred by the will and his own share of the property. Prima facie a testator is presumed to have intended to bequeath that alone which he owned, — that only over which his power of disposal extended. Wherever, therefore, the testator does not give the whole property specifically, but employs gen- eral words of description and donation, such as "all my lands7" and the like, it is well settled that no case for an election arises, because there is an interest belonging to the testator to which the disposing language can apply, and the prima facie presumption as to his intent will con- trol. ^ «■ On the other hand, if the testator devises the prop- & K. 262, 5 Sim. 35 ; Shuttleworth v. Greaves, 4 Mylne & C. 35 ; Wilkin- son V. Dent, L. R. 6 Ch. 339; Grosvenor v. Durston, 25 Beav. 97; Usticke V. Peters, 4 Kay & J. 437; Fitzsimmons v. Fitzsimmons, 28 Beav. 417; IMiller v. Thurgoocf, 33 Beav. 496; Bull v. Church, 5 Hill, 207, 2 Denio, 430, 43 Am. Dec. 754; Fuller v. Yeates, 8 Paige, 325; Sandford v. Jack- son, 10 Paige, 266; Vernon v. Vernon, 53 N. Y. 351; Savage v. Burnham, 17 N. Y. 561, 577; Leonard v. Steele, 4 Barb. 20; Lewis v. Smith, 9 N. Y. 502, 61 Am. Dec. 706; Mills v. Mills, 28 Barb. 454; Morrison v. Bowman, 29 Cal. 348; Chapin v. Hill, 1 R. I. 446; ColUns v. Carman, 5 Md. 503; Stark v. Hunton, 1 N. J. Eq. 216 ; Higginbotham v. Cornwell, 8 Gratt. 83, 56 Am. Dec. 130; Douglas v. Feay, 1 W. Va. 26; Hyde v. Baldwin, 17 Pick. 303, 308; Smith v. Guild, 34 Me. 443, 447; Weeks v. Patten, 18 Me. 42, 36 Am. Dec. 696; George v. Bussing, 15 B. Mon. 558; Apperson V. Bolton, 29 Ark. 418; Ailing v.- Chatfield, 42 Conn. 276; Brown v. Brown, 55 N. H. 106; Cox v. Rogers, 77 Pa. St. 160; Young v. Pickens, 4fi Ind. 23 ; Metteer v. Wiley, 34 Iowa, 214 ; Colgate v. Colgate, 23 N. J. Eq. 372; Worthen v. Pearson, 33 Ga. 385, 81 Am. Dec. 213. § 489, 1 Dummer v. Pitcher, 2 Mylne & K. 262 ; Usticke v. Peters, 4 Kay & J. 437; Miller v. Thurgood, 33 Beav. 496, per Lord Romilly, M. R.; Rancliffe v. Parkyns, 6 Dow, 149. In Miller v. Thurgood, 33 Beav. 496, § 489, (a) The text is quoted in La 426, and Herrick v. Miller, 69 Wash. Tourette v. La Tourette, 15 Ariz. 456, 125 Pac. 974; cited in Penn r. 200, Ann. Cas. 1915B, 70, 137 Pac. Guggenheimer, 76 Va. 839, 847; Pratt 927 CONCERNING ELECTION. § 489 erty specifically by language indicating a specific gift of the property, an election becomes necessary. It seems now to be settled by the more recent English decisions that when the owner of an undivided share devises or bequeaths the property by words of description and donation importing an intent to give the entirety, then a case of election is raised against the other co-owner who receives a benefit under the same will. 2 t> The conclusion which is plainly a testator owned a freehold lease in Potter Street and another in South Street, and an undivided two thirds of a house and of eighteen cottages in South Street, the other third belonging to his wife. He devised all his freehold, messuages, cottages, etc., in the two streets, specifically men- tioning them, to his wife for her life, and after her death to his children in fee. Lord Romilly held that she was bound to elect between her one third of the house and cottages, and the benefits given by the will. He said: "If the testator had devised his property in these terms, 'all and every my freeholds in Potter Street and South Street, and elsewhere,' I should be of opinion that no case for an election arose. But he specifi- cally points to his cottages in South Street," etc. § 489, 2 Shuttleworth v. Greaves, 4 Mylne & C. 35 ; Miller v. Thurgood, 33 Beav. 496; Padbury v. Clark, 2 Macn. & G. 298; Fitzsimmons v. Fitz- simmons, 28 Beav. 417; Grosvenor v. Durston, 25 Beav. 97; Howells v. Jenkins, 2 Johns. & H. 706; Grissell v. Swinhoe, L. R. 7 Eq. 291, 295; Wilkinson v. Dent, L. R. 6 Ch. 339. In Padbury v. Clark, 2 Macn. & G. 298, a testator owned an undivided half of a certain house, and one Mary Cox owned the other half. He devised "all that my freehold, messuage, and tenement, with the gai'den and all the ajDpurtenances, situate at Tot- tenham, and now on lease to T. Upton," to the plaintiff, and gave certain bequests to Mary Cox. Lord Cottenham held that this language showed a clear intention to devise the house as an entirety, and put Mary Cox to an election. In Howells v. Jenkins, 2 Johns. & H. 706, a testator, own- ing an undivided half of two farms, another undivided fourth of which belonged to W., devised one of these farms to E. and W., and W. was V. Douglas. 38 N. J. Eq. 516, 538; 76 Va. 839, 847, and in Cooley v. In re Gotzian, 34 Minn. 159, 57 Am. Houston, 229 Pa. St. 495, 78 Atl. 1129. Rep. 43, 24 N. W. 920; Toney v. See, also. Ditch v. Sennott, 117 111. Spragins, 80 Ala. 541. See, also. In 362, 7 N. K 640; Job Haines Home re Gilmore, 81 Cal. 240, 22 Pac. 655; for Aged People v. Keene (N. J. Haack v. Weicken, 118 N. Y. 75, 23 Eq.), 101 Atl. 512; Waggoner r. N. E. 133. Waggoner, 111 Va. 325, 30 L. E. A. §489, (b) The text is cited and (N. S.) 644, 68 S. E. 990. followed In Penn v. Guggenheimer, § 489 EQUITY JURISPRUDENCE. 928 deducible from these recent decisions in England is, that when a person owns an undivided interest or share in any species of property, — a house and lot, a farm, a fund of securities, or a fund of money, — and he does not use gen- eral words of gift, such as *'all my estate," "all my prop- erty," and the like, but purports to give the whole thing itself, using language which, by a reasonable interpreta- tion, must necessarily describe and define the whole corpus of the thing in which his partial interest exists, as a dis- held bound to elect. In Grosvenor v. Durston, 25 Beav. 97, a testator, having certain public funds which stood in the joint names of himself and his wife, bequeathed away his funded stock generally, and also made a provision for his widow; she was put to her election. In Grissell v. Swin- hoe, L. R. 7 Eq. 291, 295, a testator was entitled to one half of a fund and a certain lady was entitled to the other half. In his will, after reciting that he was entitled to the whole fund, he purported to bequeath the whole and to give one half of it to the husband of the lady, who was really owner of the other half. This husband had become administrator of his wife on her death, and succeeded to her half by virtue of his administra- tion. The court held that ordinarily under the general rule, a case for an election would have arisen, but the husband was not required to elect solely because he was not entitled to the other half in his own right. In Wilkinson v. Dent, L. R. 6 Ch. 339, a testatrix owned an undivided half of an estate. She devised the estate as follows: "I give and devise all and singular the estate and mines of Aroa, in Columbia, formerly the estate of Simon Bolivar," etc., upon trusts, for the benefit, among others, of the parties who were entitled to some interest in the other half of the estate. James, L. J., said: "It appears to me utterly impossible to sup- pose that when she said, 'I give and devise all,' etc., she meant only to give such estate and interest as she had in the property. A will must be construed reasonably even where by so doing parties are put to their election." ® § 489, (c) In Wooley v. Schrader, tended to be devised, the court held 116 111. 29, 4 N. E. 658, the testator that a provision in the will direct- had the legal title to a piece of ing that compensation be made to land, and his son had the equitable the son for improvements made by title and a right to a conveyance, him was decisive in showing that The testator devised the land to an- the testator intended to dispose of sther by general description, and the entire fee, and not his mere made other provisions for his son. legal title, and that the son was put In determining whether the entire to an election, estate, legal and equitable, was in- 929 CONCERNING ELECTION. § 490 tinct and identified piece of property, then an intention to bestow the whole, and not merely the testator's undi- vided share, must be inferred, and a case for an election arises. The language of description may be by metes and bounds, or may be any other form of words which will serve clearly to point out and identify the entire subject-matter.^ d § 490. The Donor Owns Only a Future Interest. — The rule thus established with reference to present undivided interests is not applied, at least with equal strictness, to cases where the donor has only a future interest, as a remainder or reversion in fee. If a testator, owning a re- mainder or reversion in fee, with no power over the prece- dent life estates, uses general language of disposal, such as "all my estate," or even disposes of the property as a whole by name, he is to be regarded as intending only to dispose of his future interest, and no necessity for an election arises.^ This result, however, is not universal. Although a testator must be taken prima facie to have in- tended only to dispose of what belongs to him, there is no such rule as that where a testator has a limited interest in property forming the subject of a devise or bequest, the in- tention to make a disposition extending beyond that interest cannot be made clear by anything short of positive declara- § 489, 3 As an illustration, if a testator owns an undivided half of a certain farm, and should devise the farm itself as a whole, either describ- ing it by metes and bounds, or identifying it as a whole by any other form of words, an election would be necessary. The cases which have arisen in the United States presenting the closest analogy to these recent English decisions are those which are found in the California reports dealing with the "community property" of the husband and wife. It will be seen, in a subsequent paragraph, that the rule as stated in the text and established by the English courts has not been adojated by the California courts under circumstances closely analogous.* § 490, 1 Rancliffe v. Parkyns, 6 Dow, 149. §489, (d) The text is quoted and §489, (e) See post, §§ 503-505. followed in Penn v. Guggenheimer, 76 Va. 839, 847. 1—59 § 490 EQUITY JURISPRUDENCE. 930 tion. The context of the will, and the aptitude of the testa- mentary limitations to the testator's interest, ought to be regarded. If, from the context of the will and all the dis- positions taken together, an intention on the part of the testator is clear to give the antecedent life estates as well as his own remainder or reversion in fee, then an election becomes necessary by those who, owning the life estates, have received other benefits from the will.^ It has also been held that where a testator has a contingent interest only in certain property, — an interest which will only vest in him upon the happening of a contingent event, — and he bequeaths the property by language of gift general in its terms and absolute in its form, without referring to the con- tingent character of his interest, he must be assumed to have intended to dispose only of his own contingent interest, and not to make an absolute gift. If the contingency should not happen, and the bequest therefore failed, no election would be necessary by the person who succeeded to prop- erty and who also took a benefit under the will.^ § 490, 2 Wintoi;r v. Clifton, 8 De Ges, M. & G. 641, 649, 650, 21 Beav. 447. The testator had several different estates. Some of them he owned absolutely; but in one of them he owned only the fee in remainder, the life estates being held by others. His will made very complicated dis- positions, which applied alike to all the estates. From the whole scheme of the will the court held the intent was clear to dispose of the antece- dent life interest in the last-mentioned estate, as well as the remainder in fee, and an election was necessary. For an extract from the opinion, see ante, § 474, note. See, also, Smith v. Smith, 14 Gray, 532 ; Hyde v. Bald- win, 17 Pick. 308; Smith v. Guild, 34 Me. 443; Hamblett v. Hamblett, 6 N. H. 333; Fulton v. Moore, 25 Pa. St. 468; Weeks v. Patten, 18 Me. 42, 36 Am. Dec. 696. § 490, 3 Havens v. Sackett, 15 N. Y. 365. The testator was entitled to certain bank stocks, provided he should siurvive his brother's widow, but in case he died before the widow the stocks should belong to the children. He bequeathed the stocks to the plaintiff as follows: "The stocks given to me by my said brother after the decease of his widow." The testator dying before his widoTjr, the stocks passed to his children; and they were held not bound to elect between these stocks and the benefits given by their father's will. See extract from the opinion, ante, § 488, note. 931 CONCEENING ELECTION. § 491 § 491. Devise of Lands Encumbered, Where the Encum- brancers Also Receive Benefits Under the Will. — Where a testator owns property which is subject to some encum- brance or charge, and he devises it, distinctly describing it, but not making any provision with respect to the encum- brance, and at the same time he gives some other bequest to the encumbrancer or holder of the charge, no case for an election by the latter is thereby raised. The testator is regarded as having intended to devise only the property subject to the charge or encumbrance. ^ The same rule has been applied to general creditors, where a will contains a devise or bequest of property in trust for the payment of the testator's debts. ^ § 491, 1 Stephens v. Stephens, 1 De Gex & J. 62, 3 Drew. 697. The question in this ease was Avhether the defendants, brothers and sisters of the plaintiff, were not bound to elect between the benefits given to them by the will of their father, John S., and the benefit of a charge for ten thousand pounds, created in their favor by the will of their grandfather, William S., upon an estate which the plaintiff, the elder brother, took under that will, but which the father, John S., had also purported to devise to him by his will. The court of appeal, Lord Chancellor Cran- worth, and Lords Justices Knight Bruce and Turner, held that under the settled rule applicable under such circumstances, the defendants were not bound to elect. Lord Cranworth said (p. 71) : "Where a testator simply gives an estate, without saying more, he is to be taken to mean the estate in its present condition, subject to the existing charges upon it. Lord Chief Baron Eyre, in Blake v. Bunbury, 1 Ves. 514, says: 'If there is an encumbrance upon the estate devised in such terms' (i. e., in general terms applicable to an estate of which the testator is absolute owner), 'the mere language of the will affords no inference of an intention to dispose of the estate free from that encumbrance.' " An intention to devise free from the encumbrance, so as to put the encumbrancer also receiving a benefit to his election, must appear conclusively from the words of the will : Sadlier v. Butler, 1 1. R. Eq. 415, 423. § 491, 2 Thus where the will contains such a devise, it has been held that creditors need not elect between the benefit of such provision, and the enforcement of their legal rights against other funds or assets of the estate disposed of by the will : Kidney v. Cousmaker, 12 Ves. 136, 154, per Sir William Grant; Clark v. Guise, 2 Ves. Sr. 617; Deg v. Deg, 2 P. Wms. 412, 418. The doctrine of these cases, viz., that the necessity of election does not extend to creditors, has been rejected by certain decisions of the § § 492, 493 EQUITY JUEISPKUDENCE. 932 § 492. Dower — Election by a Widow Between Her Dower and Benefits Given by Her Husband's Will. — Where a hus- band devises or bequeaths property to his wife, the ques- tion arises, whether she must elect between this benefit and her dower, or whether she is entitled to claim both her dower and the testamentary gift. This is by far the most important and frequent aspect in which the doctrine of election has come before the American courts, — so impor- tant that election itself has sometimes been treated by American writers as a mere incident of dower. In consid- ering this branch of the subject, I purpose, in the first place, to state the general rule for the interpretation of such wills as settled by judicial authority, and then to ex- plain the most important kinds of particular testamentary dispositions which have given rise to more special and definite rules. § 493. The General Rule. — In England and in the states where the common-law dower, or an interest of the wife analogous thereto, exists, the following general rule for the interpretation of a husband's will, and for the determina- tion of his widow's obligation to elect, has been established by the overwhelming weight of authority. If the will de- clares in express words that the testamentary gift is in- tended to be in lieu of dower, the widow is obliged, even at law, to elect.i When, however, the will contains no such express words, every devise or bequest made to the wife is presumed to be intended as a provision in addition to her dower right, and in general, she will not be required to elect. The duty of electing may arise even in the absence of any express declaration that the testamentary gift is in lieu of dower, but can only arise from a clear, unequivocal intention exhibited in provisions of the will incompatible Pennsylvania supreme court, which seem to require an election by the creditors under such circumstances. See Irwin v. Tabb, 17 Serg. & R. 419, 423 ; Adlum v. Yard, 1 Rawle, 163, 171, 18 Am. Dec. 608. § 493, 1 Nottley v. Palmer, 2 Drew. 93; Boynton v. Boynton, 1 Brown Ch. 445. 933 CONCERNING ELECTION. § 493 with the right of dower. *'If there is anything ambiguous or doubtful, if the court cannot say that it was clearly the intention to exclude, then the averment that the gift was made in lieu of dower cannot be supported ; and to make a case of election, that is necessary, for a gift is to be taken as pure until a condition appear. The only question made in all the cases is, whether an intention, not expressed in apt words, can be collected from the terms of the instru- ment. The result of all the cases of implied intention seems to be, that the instrument must contain some provision in- consistent with the assertion of a right to demand a third of the lands, to be set out by metes and bounds. "^ "The inquiry is, whether an intention in the testator that the testamentary gift is to be in lieu of dower can be collected by clear and manifest implication from the provisions of the will. To enable us to deduce such an implied intention, the claim of dower must be inconsistent with the will, and repugnant to its dispositions, or some of them. It must, in fact, disturb or disappoint the will. "3 ' § 494, (a) Right to Elect Under Crenshaw v. Carpenter, 69 Ala. 572, 44 These Statutes is Personal. — See Am. Rep. 539; Sanders v. Wallace, post, note to § 513. 118 Ala, 418, 24 South. 354. § 494, ("») Alabama. — See, also, 939 CONCERNING ELECTION". §495 § 495. Classes of Testamentary Dispositions. — So many cases have arisen upon wills containing dispositions by the testator, similar in their operation, that the English and American courts have been enabled to make a classification Illinois.— Kurd's Rev. Stats. 1880, p. 426, sees. 10, 11 : « Extends to dower; election must be within one year after letters testamentary are issued. See Haynie v. Dickens, 68 111. 267 ; Sutherland v. Sutherland, 69 111. 481 ; Padfield v. Padfield, 78 111. 16 ; Gauch v. St. Louis, etc., Ins. Co., 88 111. 255, 30 Am. Rep. 554; Mowbry v. Mowbry, 64 lU. 383; Brown v. Pitney, 39 111. 468; Jennings v. Smith, 29 111. 116. §494, (c) Illinois. — Rev. Stats. 1889, 1893, chap. 41, §§ 10, 11; Warren v. Warren, 148 111. 61, 22 L. E. A. 393, 36 N. E. 611 (inade- quacy of provision immaterial). § 494, (d) Indiana. — Burns' Rev. Stats. 1901, §§ 2648, 2666. See Mil- ler V. Stephens, 158 Ind. 438, 63 N. E. 847, for the terms and con- struction of these statutes. Under this statute the widow takes under the will unless within a year from probate she files a declaration of election against the will: Young v. Biehl, 166 Ind. 357, 77 N. E. 406 (election by voluntarily accepting provisions of will) ; Whitesell v. Strickler, 167 Ind. 602, 119 Am. St. Eep. 524, 78 N. E'. 845 (may have action after expiration of the year to rescind election procured by undue influence) ; Stiers v. Mundy, 174 Ind. 651, 92 N. E. 374; Stude- baker Bros. Mfg. Co. v. De Moss (Ind. App.), Ill N. E. 26 (no elec- tion by widower when no provision made for him by will; in such case he takes by descent notwithstand- ing an attempted election in favor of the will); Bowers v. Lillis (Ind.), 115 N. E. 930 (effect of election to take under will) ; Chaplin v. Leap- ley, 35 Ind. App. 511, 74 N. E. 546 (nothing left to wife by will which husband had a right to dispose of, no renunciation necessary). Under former statute, in the absence of affirmative acts in acceptance of the will, she was deemed to elect in opposition to the will: O'Brien v. Knotts, 165 Ind. 308, 75 N. E. 594; see Dillman v. Fulwider, 57 luct. App. 632, 105 N. E. 124. §494, (e) Iowa. — Present statute, Code of 1897, § 3376 (for former statute, see post, note to § 513). In the absence of an election made as provided by statute, by formal consent in court within six months after notice to elect, the widow is conclusively presumed to have con- sented to the provisions of the will, and to elect to take thereunder: In re Hamilton's Estate, 148 Iowa, 127, 126 N. W. 776; Arnold v. Living- ston, 157 Iowa, 677, 1.39 N. W. 927 (no limit on the time in which notice may be served); Thorpe v. Lyones, 160 Iowa, 415, 142 N. W. 82 (summing up results of pres- ent statute) ; Watrous v. Watrous (Iowa), 163 N. W. 439 (formal election in favor of will though survivor not mentioned therein). Where the widow is named as devisee in the will, it is presumed, §495 EQUITY JURISPRUDENCE. 940 of wills, and to establish a number of special rules declar- ing what particular kind of testamentary disposition is and what is not inconsistent with a claim of dower, so that Kansas. — Comp. Laws 1879, p. 1005, sec. 6153 : ' Extends to widow's statutory portion ; election must be made within thirty days after service of a citation issued to her after the probate. See Allan v. Huiinum, 15 Kan. 625. Maine. — Rev. Stats. 1871, p. 757, c. 103, sec. 10: Extends to dower; election must be within six months after the probate. See Allen v. Pray, 12 Me. 138, 142; Hastings v. Clifford, 32 Me. 132; Dow v. Dow, 36 Me. 211. Massachusetts. — Rev. Stats., c. 60, sec. 11; Gen. Stats., c. 92, see. 24; Stats. 1854, c. 428; Stats. 1861, c. 164 :*» Extends to dower; election must unless the contrary appears, that the testator intended the devise to be in lieu of her statutory rights: Code 1897, § 3270; Arnold t. Liv- ingston, 157 Iowa, 677, 139 N. W. 927. In the absence of service of notice to elect, she need not make her election within any particular time, and such election may be proved by oral declarations on her part: Arnold V. Livingston, 157 Iowa, 677, l39 N. W. 927. § 494, (*) Kansas. — Comp. Laws 1885, c. 117, sec. 41. See Moore v. Herd, 76 Kan. 826, 93 Pac. 157 (statute applies equally to widow and to surviving husband); Ashel- ford V. Chapman, 81 Kan. 312, 105 Pac. 534 (in case of election to take under statute of descents, cannot enlarge rights by appeal to the will). Under the present statute (Gen. Stats. 1909^ § 9819), a failure to elect is equivalent to an election to take against the will; Williams V. Campbell, 85 Kan. 631, 118 Pac. 1074. The statutes are construed to mean that an election in favor of the will bars the widow and her heirs from inheriting property of the husband undisposed of by the will: Compton v. Akers, 96 Kan. 229, 150 Pac. 219. §494, (s) KentucTcy.—Kj. Stats., §§ 1404, 2136. For the terms and construction of these statutes see Bayes v. Howes, 24 Ky. L. Eep. 281, G8 S. W. 449. See, also, Mercer v. Smith, 32 Ky. Law 1003, 107 S. W. 1196 (if widow does not make her election within a year, she is deemed to have waived her dower right and to have elected to take under the will) : Smith v. Perkins, 148 Ky. 387, 146 S. W. 758 (same); Harding v. Harding, 140 Ky. 277, Ann. Cas. 1912B, 526, 130 S. W. 1098 (if survivor dies without re- nouncing the will, his or her per- sonal representative cannot elect) ; Landers v. Landers, 151 Ky. 206, Ann. Cas. 1915A, 223, 151 S. W. 386 (where the devise to the wife was of property which the husband could not dispose of by will, her failure to renounce the will within the statutory period does not amount to an election in favor of the will). § 494, (h) MassacMsetts. — Pub. Stats., c. 127, sec. 20. See, also, Matthews v. Matthews, 141 Mass. 941 CONCERNING ELECTION. §495 the widow shall or shall not be put to an election thereby. The most common and important of these testamentary forms, and of the special rules concerning them, will now be stated. be made within six months after probate. See Atherton v. Corliss, 101 Mass. 40, 44; Reed v. Dickerman, 12 Pick. 146; Pratt v. Felton, 4 Cush. 174; Delay v. Vinal, 1 Met. 57; Adams v. Adams, 5 Met. 277. Maryland.— Rev. Code 1878, p. 475, sees. 227-230 : » Extends to dower and to disti-ibutive share; election must be made within six months ai'ier letters testamentary are issued. See Knighton v. Young, 22 Md. 359; Hilleary v. Hilleary's Lessee, 26 Md. 274 ; Gough v. Manning, 26 Md. 347, 366 ; Lynn v. Gephart, 27 Md. 547 ; Hinckley v. House of Refuge, 40 Md. 461 ; Pindell v. Pindell, 40 Md. 537. Michigan.— 2 Comp. Laws 1871, p. 1362, sees. 4286, 4287 : i Extends to dower; widow is deemed to have elected in favor of the will, unless Avithin one year after her husband's death she begin proceedings to recover her dower. Minnesota. — 1 Bissell's Stats, at Large, p. 628, sees. 152, 153 : ^ Provi- sions same as in Michigan; but in 1875 dower was abolished, and these provisions repealed. 511, 6 N. E. 776; Downey v. King, 201 Mass. 59, 87 N. E. 468. The provision that the widow shall not be entitled to dower in addition to the provisions of her husband's will is held not to apply to lands of a resi- dent of Massachusetts situated in a foreign state: Staigg v. Atkinson, 144 Mass. 567, 12 N. E. 354. §494, (1) Maryland.— Co^Q 1888, art. 93, sees. 291-294. That a widow electing to take in opposition to the will cannot claim to have her statutory estate enlarged by virtue of a provision in the will, see Pacholder v. Kosenheim, 129 Md. 455, L. R. A. 1917D, 464, 99 Atl. 672, (her share is to be ■ computed as though her husband died intestate; she cannot take advantage of a clause in the will directing conversion to claim one half of the resulting personalty). § 494, (J) Michigan. — Howell's Stats. 1882, sees. 5750, 5751; Comp. Laws, § 9064; Stearns v. Perrin, 130 Mich. 456, 90 N. W. 297. See, also, Eddy v. Eddy, 168 Fed. 590, 93 C. C. A. 586 (statutory limitation of one year does not apply when election procured by fraud, until discovery of the fraud. §494, (k) Minnesota.— ReY. Stats. 1851, c. 49, sec. 18; Gen. Stats. 1866, c. 48, sec. 18. By the Laws of 1875, c. 40, abolishing dower, an es- tate of inheritance in lieu of dower is given to the widow, and the rules governing election between this statutory estate and provisions made for the wddow by the will of her husband are the same as the general rules of equity governing election in cases of dower. Unless the contrary appears from the will, the presumption is, that a legacy is intended as a bounty, and not as a satisfaction of the statutory inter- est of the wife: Estate of Gotzian, § 496 EQUITY JUEISPRUDENCE. 942 § 496. Express Declaration. — If the testator, in express terms, declares that any gift which he makes to his widow, Mississippi.— Rev. Code 1871, p. 254, sees. 1286, 1287:1 Extends to dower and to widow's share of personal estate; election must be made within six months after probate. Nebraska. — Gen. Stats. 1873, p. 278, sees. 17, 18: Extends to dower; election is deemed to be made in favor of the will, unless within one year after her husband's death the widow begins proceedings to recover her dower.™ North Carolina. — Battle's Rev. 1873, p. 840, sec. 6: ^ Extends to dower; election must be made within six months after probate. See Craven v. Craven, 2 Dev. Eq. 338 ; Bray v. Lamb, 2 Dev. Eq. 372, 25 Am. Dec. 718. Ohio. — 2 Rev. Stats. 1879, p. 1433, sec. 5963: Extends to dower; elec- tion must be made within one year after service of a citation upon the widow for that purpose. See Stilley v. Folger, 14 Ohio, 610, 646; Luigart v. Ripley, 19 Ohio St. 24; Baxter v. Boyer, 19 Ohio St. 490; Bowen v. Bowen, 34 Ohio St. 164; Thompson v. Hoop, 6 Ohio St. 480; Stockton v. Wooley, 20 Ohio /St. 184; Davis v. Davis, 11 Ohio St. 386; Jennings v. Jennings, 21 Ohio St. 56. Oregon. — Gen. Laws 1872, p. 586, §§18, 19 : ** Extends to dower; widow is deemed to have elected in favor of the will, unless within one year after the death of her husband she begins proceedings to recover her dower. Pennsylvania. — Brightly's Purdon's Dig., p. 362, sees. 4—6 : * Extends to dower; after one year from the husband's death a citation may be issued to the widow, and she must then elect. See Anderson's Appeal, 36 Pa. St. 476; Melizet's Appeal, 17 Pa. St. 449, 55 Am. Dec. 573; Cauffman v. Cauffman, 17 Serg. & R. 16; Heron v. Hoffner, 3 Rawle, 393; Reed v. Reed, 9 Watts, 263; Leinaweaver v. Stoever, 1 Watts & S. 160; Borland V. Nichols, 12 Pa. St. 38, 51 Am. Dec. 576. 34 Minn. 159, 57 Am. Rep. 43, 24 §494, (n) North Carolijia. — Code N. W. 920. That a widow electing 1883, sec. 2108. See Lee v. Giles, in favor of tlie will cannot take by 161 N. C. 541, 77 S. E. 852. Inheritance any part of the estate § 494, (o) Oregon. — Hill's Laws as to which the testator died in- 1887, sees. 2971, 2972. testate, see Mechling v. McAllister, § 494, (p) Pennsylvama. — Bright- 135 Minn. 357, L. R. A. 1917C, 504, ly's Purdon's Dig., ed. of 1883, 160 N. W. 1016. p. 632. See In re Powell's Estate, §494, (1) Missi.ss'ippi.— 'Code 1880, 225 Pa. 518, 74 Atl. 421 (widow sees. 1172, 1174. limited to a choice between the two §494, (n») Neiraslca. — Dower provisions; cannot accept the will abolished, 1889. See Gaster v. Gas- in part and demand part of her ter's Estate, 90 Neb. 529, 134 N. W. statutory rights). 235 (as to election in behalf of in- sane widow). 943 CONCERNING ELECTION. §496 whether legacy or devise, shall be in lieu of her dower, she is, of course, required to elect between the will and her Tennessee. — Code 1871, vol. 2, p. 1077, see. 2404. Extends to dower; election must be made within one year after probate. See Reid v. Camp- bell, Meigs, 378, 388; Malone v. Majors, 8 Humph. 577, 579; MeClung v. Sneed, 3 Head, 218, 223; Waddle v. Terry, 4 Cold. 51, 54; Demoss v. Demoss, 7 Cold. 256, 258.« Wisconsin.— 2 Tayloi-'s Stats. 1871, p. 1160, sees. 18, 19 : ' Extends to dower; widow is deemed to have elected in favor of the will, unless within one year after probate she begins proceedings to recover her dower. Second Class. — In all the states of this class, any devise of land by the husband to his widow is deemed to be in lieu of dower, and puts her to an election, unless the will expressly shows his intention that she shall receive both. A bequest of personal property' is not so deemed, and does not put the widow to an election, unless it is expressly given in lieu of her dower, or unless the testator's intention that it shall be instead of dower is plainly manifested from the provisions of the will. When thus required to elect, the widow's election must be made in a formal manner, by a writing, and within certain prescribed times. The prescribed periods of time within which the election must be made are mentioned in connec- tion with each state of the class. The following states compose this class : — §494, (a) Tennessee. — Shan. Code, § 4146. See Eowlett v. Rowlett, 116 Tenn. 458, 95 S. W. 821; Battle V. Claiborne, 133 Tenn. 286, 180 S. W. 584 (on exceptional facts, widow not called upon to elect). West Virginia.— €oie 1906, § 3177. When any provision is made for a wife in the husband's will, she may renounce the provision within one year after probate, either in person before the court, or by writing re- corded in the court; otherwise she shall have no more than is given her by the will: See Freeman v. Free- man, 61 W. Va. 682, 11 Ann. Cas. 1013, 57 S. E. 292. § 494, (r) Wisconsin. — Laws of 1877, c. 106; Sanborn and Berry- man's Stats. 1889, sec. 2172. Under the laws of 1877 (c. 106), if a will makes provision for the widow, she is excluded from any share in either the real or personal estate of the testator left undisposed of by the will, by virtue of the right of dower or under the statute of distribu- tions, unless she duly renounces the provisions so made for her in the will: Hardy v. Scales, 54 Wis. 452, 11 N. W. 590. In Wilber v. Wilber, 52 Wis. 298, 9 N. W. 163, it is held that the statutory right of election cannot be taken from the widow either by the will, or by a deed of release executed by her to her hus- band during coverture. See, also, Leach v. Leach, 65 Wis. 291, 26 N, W. 754; Melms v. Pabst Brewing Co., 93 Wis. 140, 66 N. W. 244; Villey v. Lewis, 113 Wis. 618, 88 N. W. 1021. § 496 EQUITY JUEISPKUDENCB. 944 dower right, both at law and in equity; and tlie value of the gift in proportion to that of her dower, whether large Arkansas.— GantVs Dig., sees. 2233, 2235, 2236:* Where a devise is simply given to tiie widow, she must elect against the will within eighteen months after her husband's death, or else she is regarded as having elected in favor of the will. Also, in Gantt's Dig., sec. 2223,* when any provi- sion is given to her expressly in lieu of her dower, she must elect against the will within one year after her husband's death, by commencing pro- ceedings to recover her dower. Delaware. — Rev. Code 1852-74, p. 534, sees. 5, 6, 7: Widow must elect against the will within thirty days after service of a citation on her. See Chandler v. Woodward, 3 Harr. (Del.) 428. Georgia. — Code 1873, p. 305, sees. 1764, 1765: Widow must elect when land is devised to her, but the time of making the election and its mode are not prescribed. See Tooke v. Hardeman, 7 Ga. 20; Raines v. Corbin, 24 Ga. 185 ; Worthen v. Pearson, 33 Ga. 385, 81 Am. Dec. 213 ; Clayton v. Akin, 38 Ga. 320, 95 Am. Dec. 393 ; Gibbon v. Gibbon, 40 Ga. 562.n Missouri. — 1 Wagner's Stats. 1870, p. 541, sees. 15, 16: Widow must elect in writing within one year after probate to waive the devise, or she is deemed to have elected in favor of the will. See Pemberton v. Pember- ton, 29 Mo. 408; Brant v. Brant, 40 Mo. 266.^ New Jersey. — Rev. Stats. 1877, p. 322, sec. 16: Any devise is a bar of dower, unless the widow elects to waive it within six months after pro- bate. See Stark v. Hunton, 1 N. J. Eq. 216; Norris v. Clark, 10 N. J. Eq. 51; Adamson v. Ayres, 5 N. J. Eq. 349; Colgate v. Colgate, 23 N. J. § 494, («) Arlcansas. — Dig. of accepted by her at the time, in lieu Stata. 1884, sees. 2594, 2596, 2597. of dower, will not have that effect, § 494, (t) Dig. of Stats. 1884, unless ratified after the husband's sec. 2284. death: Butts v. Trice, 69 Ga. 74. § 494, (n) Georgia. — In Forester As to her election to take a child's V. Watford, 67 Ga. 508, and Aldridge portion in place of the provisions of T. Aldridge, 79 Ga. 71, 3 S. E. 619, the will, see Falligant v. Barrow, it was held that before the right to 133 Ga. 87, 65 S. E. 149. dower can be defeated, the widow § 494, (v) Missouri.— As to per- must do some act showing her ac- sonal property, the rule of equity ceptance of the provision of the remains in full force and effect, and will. As to what will amount to wife takes both legacy and dower Buch an election, see Churchill v. right unless will expressed intention Bee, 66 Ga. 621; Johnston v. Duncan, to contrary: Sparks v. Dorrell, 151 67 Ga. 61. The wife cannot be put Mo. App. 173, 131 S. W. 761; and to her election until after the death see Zook v. Welty, 156 Mo. App. of her husband. Consequently, a 703, 137 S. W. 989. deed from the husband to his wife, 945 CONCERNING ELECTION. § 497 or small, is entirely immaterial. ^ ^ In all the subsequent classes the will contains no such express declaration. § 497. Devise of a Part to the Widow and of the Rest to Others. — Where a testator simply devises to his widow a part of the lands which are subject to dower, with or with- out any additional pecuniary provision by way of legacy, and gives the rest of his real estate to others to be enjoyed by such devisees for their own benefit, — that is, not to trustees upon trust to sell such residue, — it is well settled, both in England and in this country, that the disposition made by the testator is not inconsistent with his widow's claim for dower, and no necessity for an election is cre- ated.^ Where the devise to a third person, after a pro- Eq. 372; Morgan v. Titus, 3 N. J. Eq. 201; English v. English, 3 N. J. Eq. 504, 29 Am. Dec. 730; White v. White, 16 N. J. L. 202, 31 Am. Dec. 232, Thompson v. Egbert, 17 N. J. L. 459; Van Arsdale v. Van Arsdale, 26 N. J. L. 404.'^ § 496, 1 See many of the cases cited in the preceding notes, under §493. §497, 1 Lawrence v. Lawrence, 2 Vem. 365; 2 Freem. 234, 235; 3 Brown Pari. C, Tomlins's ed., 483; Lemon v. Lemon, 8 Vin. Abr., p. 366, pi. 45; French v. Davies, 2 Ves. 572; Strahan v. Sutton, 3 Ves. 249; Lord Dorchester v. Earl of Effingham, Coop. 319; Brown v. Pariy, 2 Dick. 685; Licledon v. Northcote, 3 Atk. 430, 436; Gibson v. Gibson, 1 Drew. 42; Lawrence v. Lawrence, 2 Vern. 365, 2 Freem. 234, 235, 3 Brown Pari. C, § 494, (w) New Jersey. — ^See, also, shall be accepted and received in Stewart v. Stewart, 31 N. J. Eq. lieu of dower, and of all claims the 398; Cooper v. Cooper, 56 N. J. Eq. widow may have against the testa- 48, 38 Atl. 198; Hill v. Hill, 62 N. tor's estate as his widow, it is held J. L. 442, 41 Atl. 943; Martin v. that the declaration was not simply Martin, 80 N. J. Eq. 359, 84 Atl. for the benefit of the other devisees G19; Moore v. Moore, 84 N. J. Eq. and legatees, but was in ease of 39, 92 Atl. 94S'. In Griggs v. the entire estate, and barred the Veghte, 47 N. J. Eq. 179, it is held widow from any other share thereof, that an intention to make an equal and consequently she was not en- division of the testator's estate, not titled to share under the statute of otherwise disposed of, between the distributions in a lapsed legacy: In wife and other beneficiaries is in- re Bullard, 96 N. Y. 499, 4S' Am. consistent with her taking dower. Rep. 646, disapproving Pickering v. § 496, (a) Where the provision of Stanford, 2 Ves. 272, 581, 3 Ves. 332, the will expressly states that it 492. 1—60 § 497 EQUITY JURISPRUDENCE. 946 vision made for the widow, is specific of a certain tract of lands specifically defined and identified, a variation from this rule has been suggested and even adopted in some American cases. Under ordinary circumstances the specific nature of the devise does not prevent the operation of the rule; but when the specific devise is for the benefit of one Tomlins's ed., 483, is the leading case. The testator devised part of his real estate to his wife during her widowhood, and also gave her several legacies, both specific and general. The residue of his real estate was devised to trustees, in trust, for specified persons. Lord Somers held that the widow was bound to elect, but his decision was reversed by Lord Keeper Wright, and that decree was confirmed by Lord Chancellor Cowper and the house of lords, and it was settled that she could claim both her dower and the benefits given by the will. The American decisions are equally unanimous and strong: Lefevre v. Lefevre, 59 N. Y. 435; Leonard V. Steele, 4 Barb. 20; Bull v. Church, 5 Hill, 207, 2 Denio, 430, 43 Am. Dec. 754; Lewis v. Smith, 9 N. Y. 502, 61 Am. Dec. 706; Mills v. Mills, 28 Barb. 454; Jackson v. Churchill, 7 Cow. 287, 17 Am. Dec. 514; Havens v. Havens, 1 Sand. Ch. 325, 329; Evans v. Webb, 1 Yeates, 424, 1 Am. Dec. 308; Pickett v. Peay, 3 Brev. 545, 6 Am. Dec. 594; Wiseley V. Fmdlay, 3 Rand. 361, 15 Am. Dec. 712 ; Brown v. Coldwell, 1 Speer's Eq. 322, 325; Brown v. Brown, 55 N. H. 106; but see, per contra, Ailing V. Chatfield, 42 Conn. 276 ; Apperson v. Bolton, 29 Ark. 418. In Lefevre V. Lefevre, 59 N. Y. 435, the testator gave one third of his estate, real and personal, to his widow, one third to a charitable society, then certain legacies, and the residue to his widow, to be disposed of, as she saw fit, for charitable purposes. She was not put to an election. In Leonard v. Steele, 4 Barb. 20, a husband died intestate, leaving his widow and a son. The son, dying, devised to his mother part of the real estate which thus descended to him, and the rest to others. The widow was held entitled to dower in all the real estate of her husband, and also to the land devised to her in fee by her son. In Mills v. Mills, 28 Barb. 454, the testator directed that one third of his estate should be set apart and invested for the use of his widow during her life, and on her death should be divided among his children; the residue to be divided among his children. The widow was held entitled to her dower in addition to the testamentary gift. In Jackson v. Churchill, 7 Cow. 287, 17 Am. Dec. 514, the testator devised to his widow his dwelling-house and part of his garden, and gave her legacies. He devised his farm to his sons. The widow was held entitled to dower in the farm, as well as to the devise and legacy given by the will. These examples amply illustrate the rule as stated in the text. 947 CONCERNING ELECTION. § 498 whom the testator is bound to support, the rule may not apply. 2 § 498. Devise to the Widow for Life. — As a particular instance of the rule stated in the preceding paragraph, a de- vise to the widow of a certain portion of the real and per- sonal estate, or either, for her life, and a devise of the rest of the lands to third persons, clearly does not raise a case for an election between the testamentary gift and dower in the residue^- A devise of a certain portion of the tes- tator's lands, or of all his lands, to his widow for her life or during widowhood, presents another question: whether such a disposition is inconsistent with her claim of dower in the lands thus devised to her for life, or whether she can both accept the testamentary estate and also assert, if needful, her dower right therein. Upon this question there is a direct conflict among the American decisions. Accord- ing to one class of cases, this form of gift is completely governed by the rule stated in the last preceding para- graph ; no inconsistency exists, the widow is not obliged to elect, but may take the life interest given by the will, and also claim her dower in the same lands. ^ Another group § 497, 2 Under ordinary circumstances, a specific devise to a third per- son certainly makes no difference with the operation of the rule stated in the text, that no case for an election is raised: Strahan v. Sutton, 3 Ves. 249; Jackson v. Churchill, 7 Cow. 287, 17 Am. Dec. 514; Kennedy v. Nedrow, 1 Dall. 415, 418. But if the testator, after giving a portion of his property to his widow, makes a specific devise to a person whom he is bound to support or maintain, — as, for example, to his infant child who is otherwise unprovided for, and the devise is not more than enough for its support, — it has been said that such a disposition is inconsistent with the widow's claim of dower in the land so specifically bestowed. See Herbert v. Wren, 7 Cranch, 370, 378, per Marshall, C. J.; Ailing v. Chat- field, 42 Conn. 276. §498, iBuU V. Church, 5 Hill, 207, 2 Denio, 430, 43 Am. Dec. 754; LeAvis V. Smith, 9 N. Y. 502, 61 Am. Dec. 706; Mills v. Mills, 28 Barb. 454; Sandford v. Jackson, 10 Paige, 266; Jackson v. Churchill, 7 Cow. 287, 17 Am. Dec. 514; Havens v. Havens, 1 Sand. Ch. 325. §498, 2 Bull V. Church, 5 Hill, 207, 2 Denio, 430, 43 Am. Dec. 754; Sandford v. Jackson, 10 Paige, 266; Lewis v. Smith, 9 N. Y. 502, 61 § 498 EQUITY JURISPRUDENCE. 948 of cases rejects this view, holds that the life estate under the will and the dower right in the same lands are neces- sarily inconsistent, and therefore that the widow must elect between the two. Her election in favor of the will by ac- Am. Dec. 706; Mills v. Mills, 28 Barb. 454; Mitteer v. Wiley, 34 Iowa, 214.* The courts of New York have adopted this construction of the rule in the most positive manner. In Bull v. Church, 5 Hill, 207, 2 Denio, 430, 43 Am. Dec. 754, the testator gave all his property, real and personal, to his wife during widowhood, and then to his children. She enjoyed the provision made by the will for a while, and then married a second time. She was held entitled to dower in all the lands, as her in- terest under the will had ended. In Lewis v. Smith, 9 N. Y. 502, 61 Am. Dec. 706, the testator gave his wife the use of all his estate, real and personal, during her life, and empowered his executor to sell the real estate, and pay the proceeds to his wife for her enjoyment during life. The acceptance of this provision was held not inconsistent with her enforcement of her dower right. In Saudford v. Jackson, 10 Paige, 266, testator devised all his property, real and personal, to his wife and to two others, to be held for her use as long as she should remain his widow, and until his youngest child should become of age, and then a division was to be made. She enjoyed the i3rovision made by the will for a while, and then married. Held, that no case for an election had arisen, and she was entitled to dower in all her husband's lands.** § 498, (a) See, also, Hunter v. disturbance, one which under the Hunter, 95 Iowa, 728, 58 Am. St. rules of §§ 499 et seq. of the text Rep. 455, 64 N. W. 656; Howard v. would not create an inconsistency, Watson, 76 Iowa, 229, 41 N. W. 45; may have that effect under the Iowa Bare v. Bare, 91 Iowa, 143, 59 IST. W. decisions. It is admitted by the 20; Watson v. Watson, 98 Iowa, 132, opinions in some of the later cases 67 N. W. 83; Sutherland v. Suther- that their rulings are not wholly land, 102 Iowa, 535, 63 Am. St. Rep. reconcilable: See Parker v. Parker, 477, 71 N. W. 424; Estate of Proc- 129 Iowa, 600, 106 N. W. 8; Mohn tor, 103 Iowa, 232, 72 N. W. 516. v. Mohn, 148 Iowa, 288; 126 N. W. See, also, W'arner v. Hamill, ' 134 1127; In re Steven's Estate, 163 [owa, 279, 111 N. W. 939; Archer v. Iowa, 364, 144 N. W. 644. Barnes, 149 Iowa, 658, 128 K W. §498, (b) In Estate of Zahrt, 94 969; Parker v. Parker, 155 Iowa, N. Y. 605, the testator devised to his 65, 135 N. W. 71; Thorpe v. Lyones, wife during her life "the rents, in- 160 Iowa, 415, 142 N. W. 82. But come, interest, use, and occupation if awarding to the widow her dis- of all his estate," upon condition tributive share would disturb the that she keep the buildings and per- other provisions of the will, she is sonal property insured, pay all taxes put to her election; and it would and assessments, and keep the estate seem that a comparatively slight in good repair. This requirement 949 CONCERNING ELECTION. § 499 cepting its provision, according to this construction, de- feats any subsequent claim for dower in the lands devised. ^ The conclusion reached by the former series of decisions seems to be in agreement with the settled doctrines of equity jurisprudence. § 499. Devise in Trust to Sell, or With a Power of Sale. It is also a settled rule, both in England and in the Amer- ican states, where statutes have not interfered, that, after a legacy, annuity, or other provision made for the wife, a devise of lands which are subject to dower, or of all the testator's lands, to trustees, on trust, to sell, or with power § 498, 3 Hamilton v. Biickwalter, 2 Yeates, 389, 392 ; 1 Am. Dec. 350 ; Stark V. Hunton, 1 N. J. Eq. 217, 224, 225; Smith v. Bone, 7 Bush, 367; Wilson V. Hayne, Cheves Eq. 37, 40; Caston v. Caston, 2 Rich. Eq. 1; Cunningham v. Shannon, 4 Rich. Eq. 135. Some of these cases seem to have turned, in part at least, upon local statutes. Laying out of view the effect of any statutes, in my opinion the first-mentioned series of cases is based upon the general principle as settled by the courts, rather than the second group. There does not seem to be, in accordance with that principle, any necessary inconsistency between such a devise to the widow and her claim of dower in the same lands, which would, of course, only be made where the testamentary gift had failed. It is clear that there is no such inconsistency between her claim of dower and a devise of lands to third persons, either for their lives or in fee ; that is, the gift itself, for life or in fee, does not create the antagonism required by the rule. It is said that a life estate in lands directly conferred by the will pre- cludes the notion of another legal life estate in the same lands held by the same person. It may be conceded that at law two such estates in the same lands cannot exist at the same time vested in the same person. In equity, however, this legal rule does not prevail. Equity admits the possi- bility of two estates co-existing in the same person, and will always keep both the simultaneous estates alive whenever such a result is necessary to protect the equitable interests and rights of the party. was held to be inconsistent with her put to an election. The cases chiefly dower right, and put her to her elee- relied upon were from states enu- tion. In Estate of Gotzian, 34 Minn. merated in § 494, ante, where the 159, 57 Am. Rep. 43, 24 N. W. 920, presumption is in favor of an elec- where the testamentary disposition tion; the reasoning of the court, if to the widow was practically the not its actual decision, appears to same as her statutory fee-simple proceed upon a misapprehension of "dower," it was held that she was the true principle. § 499 EQUITY JURISPRUDENCE. 950 given to the executors to sell, for any purpose, is not in- consistent with the widow's claim of dower in the lands so devised, and therefore no necessity for an election by her is created. The will, in such case, is to be interpreted as though it had expressed the intention for the lands to be sold subject to the widow's dower. This conclusion is the same, even although the will directs that an interest in some part of the proceeds of the sale should be given or secured to the widow.i Some special provision of the will, §499, 1 French v. Davies, 2 Ves. 572; Ellis v. Lewis, 3 Hare, 310; Dowson V. Bell, 1 Keen, 761; Gibson v. Gibson, 1 Drew. 42, 57; Bending V. Bending, 3 Kay & J. 257. In Ellis v. Lewis, 3 Hare, 310, the testator devised all his real estate to a trnstee, upon trust, to sell and to convey the same to purchasers, and to hold the proceeds, together with tlie residue of his personal estate, upon trust, to pay one half of the interest and income thereof to his wife during her widowhood, and the other half (and the whole after his widow's death or marriage) to his sister for her life, and finally, to pay the principal of such fund to the cliildren of the testator's said sister. Wigram, V. C, decided that no case of election arose; that the widow was entitled to the benefit given by the will, and also to her dower in all the lands. He laid down the rule as follows: "I take the law to be clearly settled at this day that a devise of lands eo nomine, upon trust, for sale, or a devise of lands eo nomine to a devisee beneficially, does not, per se, express any intention to devise the lands otherwise than subject to their legal incidents, that of dower included. There must be something more in the will, something inconsistent with the enjoyment by the widow of her dower, by metes and bounds, or the devise, standing alone, will be construed as I have stated. [Authorities are here referred to.] If that be so, it is impossible, in the case of a devise of lands upon trust for sale, that any direction for the applica- tion of the proceeds of such sale can affect the case. The devise is of land subject to dower. The trust to sell is a trust to sell subject to dower; and the proceeds of the sale will represent the gross value of the estate, minus the value of the dower. Whatever direction, therefore, for the mere distribution of the proceeds the will may contain, that direction must leave the widow's right to dower untouched. ... I found myself on these two propositions: 1. That a devise of land upon trusts for sale does not, per se, import an intention to, pass the land otherwise than subject to the legal incident of dower; and 2. That the direction to divide the proceeds of the sale cannot decide what the subject of sale is; and there is no cir- cumstance affecting the proposition in its application to the present case." The American cases adopt the snir.e rule, and upon the same course of 951 CONCERNING ELECTION. § 500 however, in addition to the mere trust, or power to sell, and to the direction for distributing the proceeds, may cre- ate the inconsistency which prevents this rule from apply- ing, and requires an election by the widow.^ ^ § 500. An Annuity or Rent-charge Given to the Widow Charged upon Lands Devised to Others. — The question as to the effect of an annuity or rent-charge given to the widow, and charged upon lands subject by the law to her dower, which are at the same time devised to others, gave rise to some discrepancy among the earlier decisions, but has been reasoning: Adsit v. Adsit, 2 Johns. Ch. 448, 7 Am. Dec. 539; Bull v. Church, 5 Hill, 207, 2 Denio, 430, 43 Am. Dec. 754; Fuller v. Yates, 8 Paige, 325; Wood v. Wood, 5 Paige, 601, 28 Am. Dec. 451; Lewis v. Smith, 9 N. Y. 502, 61 Am. Dec. 706; Whilden v. Whilden, Riley Ch. 205; Hall V. Hall, 8 Rich. 407, 64 Am. Dec. 758; Gordon v. Stevens, 2 Hill Ch. 46, 27 Am. Dec. 445; Timberlake v. Parish's Ex'r, 5 Dana, 345; Kinsey V. Woodward, 3 Harr. (Del.) 459^ § 499, 2 Thus in Vernon v. Vernon, 53 N. Y. 351, 362, a testator who owned an undivided half of certain land directed his executors to sell his own share therein, at a price fixed by him in the will, or else to take a conveyance of the other half from his co-owner at the same price for which he authorized his own share to be sold. The court held that this direction showed a clear intention on the testator's part to transfer, in case of a sale, the whole title to his own land, free from any claim of dower; and the widow was therefore put to an election. See, also. Savage V. Burnham, 17 N. Y. 561, 577. In Herbert v. Wren, 7 Cranch, 370, 379, there is a dictum of Chief Justice Marshall concerning the presumption as to the testator's intention, arising from a direction to sell the residue of his real estate for the purpose of paying his debts, which would limit the generality of the language used by Vice-Chaneellor Wigram, quoted in a preceding note. And see, on this point, Norris v. Clark, 10 N. J. Eq. 51. § 499, (a) Konvalinka v. Schlegel, § 499, (b) See, also. Bannister v. 104 N. Y. 125, 58 Am. Rep. 494, 9 Bannister, 37 S. C. 529, 16 S. E. 612. N. E. 868; where it was held that no In In re Gorden, 172 N. Y. 25, 92 necessity for an election existed, al- Am. St. Rep, 689, 64 N. E'. 753, re- though the proceeds of the sale were viewing the New York cases, the directed to be divided between the rule is thus laid down: "While a testator's wife and children, "share mere power of sale, to be promptly and share alike." See, also, Scott exercised for the purpose of distri- V. Vaughn, 83 S. C. 362, 65 S. E. 269. bution, does not put the widow to § 500 EQUITY JURISPRUDENCE. 952 completely settled by the whole current of modern author- ity. ^ The rule may be regarded as firmly established, that an annuity or a rent-charge created by the testator in his § 500, 1 1 shall depart from the rule which I have usually observed, not to refer to or comment upon the opinions expressed by other writers, for the purpose of making a few comments upon the doctrine laid down in a work of great value. In the American edition of White and Tudor's Leading Cases in Equity (4th ed., vol. 1, pp. 564—568), the note of the American editor draws a distinction between wills creating an annuity for the wife chargeable on personal and real property both, and wills creating a rent-charge chargeable on real estate alone, maintains the doc- trine that the fonner kind of provision alone creates no necessity for an election by the widow, while the latter is inconsistent with a claim of dower, and puts the widow to an election, and insists that all the English cases, the most recent as well as the earliest, recognize this distinction, and make it the foundation of their decisions. I do not purpose to examine this opinion upon principle, but simply to show the exact posi- tion of the English cases, with reference to the alleged distinction. A cai-eful examination of the English cases will show that, so far from recognizing and upholding this distinction between an annuity and a rent- charge, they expressly reject it ; not one modem decision is based upon it ; the opinions uniformly treat the effect of the two provisions as exactly the same, and in certain of the most important and authoritative cases the court examines the question and pronounces against the doctrine, which had been suggested in the arguments of counsel. It is true that there are a few early eases which have been supposed to maintain such a view, and have sometimes been regarded as authorities in support of the distinction. They are Villa Real v. Lord Galway, 1 Brown Ch. 292, note; Amb. 682 ; Arnold v. Kempstead, Amb. 466, 2 Eden, 236 ; Wake v. Wake, 3 Brown Ch. 255; and Jones v. Collins, Amb. 730. Of these. Villa Real v. Lord Galway, 1 Brown Ch. 292, note, is the leading case. It should be observed, however, that even these cases are not any authority for the particular distinction which I have described; so far as they bear upon the point, they go too far, since they purport to hold that even an annuity charged by the testator upon his property is inconsistent with the widow's dower. But these cases, so far as they bore upon this question at all, and attempted to lay down any rule concerning the effect of such a pro- vision in the will, have been repeatedly overruled; if supported as deci- sions, and recognized as authorities for any purjjose, it is upon entirely her election, the vesting of title in and the payment over of the annual trustees not only with power to sell income to the widow and children, and reinvest, but with special direc- during the term of the trust, we re- tions as to control and management gard as suflScient." 953 CONCERNING ELECTION. § 500 will in favor of his widow, and charged upon lands in which she is otherwise dowable, or upon his real and personal property, which are at the same time devised and be- different and distinct matters and testamentary pi-o visions. The case of Hall V, Hill, 1 Con. & L. 129, decided by Sir Edward Sugden when lord chancellor of Ireland, has been regarded by courts and writers as of the highest authority. He reviews the decision in Villa Real v. Lord Gahvay, 1 Brown Ch. 292, note, and says, concerning it, that Lord Camden evi- dently intended to put the case simply and entirely upon the gift of an annuity, which he held was inconsistent with dower: "It is quite impos- sible to say that Lord Camden's authority has i-emained untouched on that point, because the abstract question is quite settled that an annuity out of the estate is now held not to have the effect of barring the wife of her dower as inconsistent with it. But it is very singular that, although this is the perfectly settled law of the court, all the subsequent authori- ties have taken care to save whole the decision of Lord Camden in Villa Real v. Lord Galway, 1 Brown Ch. 292, note, and have endeavored and indeed have distinguished it. In Birmingham v. Kirwan, 2 Schoales & L. 444, Lord Redesdale put the case upon all the circumstances, — the direc- tions in the will with respect to the management of the whole estate, the payment of the annuity, and the accumulation during the minority of the child — which circumstances, in his opinion, were sufficient to authorize the decision. So, again. Lord Lyndhurst, in Roadley v. Dixon, 3 Russ. 192, comes to the same conclusion. Both held Villa Real v. Galway, 1 Brown Ch. 292, note, a binding authority, hut both on a ground which Lord Camden cautiously abstained from resting his judgment upon. I think, mj'self, that Villa Real v. Lord Galway, 1 Brown Ch. 292, note, may be considered an authority on the grounds suggested; but I cannot say that it is an authority on the abstract question, because I consider that the abstract question has been decided the other way." In Roadley v. Dixon, 3 Russ. 192, the question was directly presented, and argued with great fullness. The counsel on one side, Mr. Sugden, afterwards lord chancellor, raises the exact point, and shows that no difference between an annuity charged on property generally, and a rent-charge on the real estate, has been made by the decisions. See pp. 196-198. He commented on Villa Real v. Lord Galway, 1 Brown Ch. 292, note, and the three other cases similar to it, and said: "If it be law that a widow is put to her election by the mere bequest of a rent-charge, almost every judge of this court has been ignorant of one of its most important rules; and if such be not the law, the decision of Lord Camden cannot be sustained." The opposing counsel, one of the ablest equity lawyers, and afterwards a dis- tinguished vice-chancellor, Mr. Shadwell, distinctly and expressly con- ceded that a mere rent-charge was not inconsistent with dower. He said § 500 EQUITY JURISPRUDENCE. 954 queathed to others, is not of itself, and without additional provisions in the will concerning the property bestowed, inconsistent with the widow's claim to dower in the same lands, and does not of itself, therefore, create the necessity (p. 198) : "Villa Real v. Lord Galway, 1 Brown Ch. 292, note, has never been overruled; it still must be considered as affording the rule of deci- sion, whenever a like state of facts occurs. The question is not as to the effect of a simple bequest of a rent-charge^ but on the effect of all the dispositions contained in the will." He then goes on to show that in addi- tion to the rent-charge upon a certain specified estate devised, the will contains other dispositions inconsistent with dower, such as a power of management and occupation given to trustees, which, it had been settled, are inconsistent with dower; and in this respect the case was exactly like that of Villa Real v. Lord Galway, 1 Brown Ch. 292, note. Lord Chan- cellor Lyndhurst examined the decisions in Villa Real v. Lord Galway, 1 Brown Ch. 292, note, and in the other similar eases (pp. 201, 202). He expressly holds that Villa Real v. Lord Galway, 1 Brown Ch. 292, note, cannot be supported upon the ground which Lord Camden took in deciding it, viz., that an annuity or a rent-charge was inconsistent with dower ; but nevertheless that case should not be completely overruled ; the decision was correct upon all the facts of the case, and was a binding authority upon the same condition of facts. What were the facts'? In addition to the rent-charge, the will gave the trustees power to hold and possess and manage the lands devised, to receive all the rents and profits, and to accumulate them during the minority of an infant, etc. These provisions, all taken together, were inconsistent with any claim for dower. This examination demonstrates the following conclusions: 1. The English decisions do not recognize, and are not rested upon, any assumed distinc- tion between the effect of a rent-charge upon land alone, and an annuity charged upon both personal and real estate; 2. The few early cases wliich were once regarded as furnishing some authority for such a distinction have been expressly repudiated, and their decisions are made to rest upon entirely different provisions in the wills; 3. The more recent English eases cited in the next note all lay down exactly the same rule with reference to an annuity and a rent-charge. There may be a few American eases which recognize the distinction, and which make it the basis of decision ; but it will be seen that they are nearly, if not quite, all of them early cases, and expressly follow the sup- posed authority of Villa Real v. Lord Galway, 1 Brown Ch. 292, note, and the others of the same class. The question naturally has not often arisen in this country, since wills creating rent-charges upon particular real estate are very infrequent. 955 CONCERNING ELECTION. § 501 for an election between the annuity or rent-charge and her dower. 2 § 501. Power of Occupying, Enjoying", Managing, and Leasing Expressly Given to Devisees. — The rule is settled by the English cases that where, after or in connection with a provision for. the widow's benefit, the testator expressly prescribes the mode in which the lands devised shall be pos- sessed, occupied, enjoyed, or managed by the devisees, this disposition shows a clear intention on his part to give the entirety of the lands, which is inconsistent with any claim of dower, and therefore a case for an election is raised. It is also settled by a unanimous consent of the English authorities, as a particular instance of this rule, that where, after a provision is made for the widow, the lands are de- § 500, 2 And a clause giving ber the remedy of entry and distress in case of non-payment is not an additional provision which renders an election necessary : Pitts v. Snowden, 1 Brown Ch. 292, note ; Pearson v. Pearson, 1 Brown Ch. 291; Foster v. Cook, 3 Brown Ch. 347; Birming- ham V. Kirwan, 2 Schoales & L. 444, 453, per Lord Redesdale; Hall v. Hill, 1 Con. & L. 129, 1 Dru. & War. 103, per Sir Edward Sugdert ; Road- ley V. Dixon, 3 Russ. 192, 201, 202, per Lord Lyndhurst; Dowson v. Bell, 1 Keen, 761, per Lord Langdale; Harrison v. Harrison, 1 Keen, 765, per Lord Langdale; Holdieh v. Holdich, 2 Younge & C. 18, per Knight Bruce, V. C. The early cases of Villa Real v. Lord Galway, 1 Brown. Ch. 292, note, Arnold v. Kempstead, Amb. 466, 2 Eden, 236, Jones v. Collier, 2 Eden, 730, and Wake v. Wake, 3 Brown Ch. 255, 1 Ves. 335, so far as they lay down any different doctrine, have been repeatedly explained, limited, and overruled. See Birmingham v. Kirwan, 2 Schoales & L. 444, 453, per Lord Redesdale; Hall v. Hill, 1 Con. & L. 129; 1 Dru. & War. 103, per Sir Edward Sugden; Roadley v. Dixon, 3 Russ. 192, 201, 202, per Lord Lyndhurst; and see the comments upon these cases in the last preceding note. The American cases are few, but the decided weight of authority is in support of the rule as settled by the English courts, and as stated in the text: Smith v. Kniskern, 4 Johns. Ch. 9; and Adsit v. Adsit, 2 Johns. Ch. 448, 7 Am. Dec. 539, opinion of Chancellor Kent; Lasher v. Lasher, 13 Barb. 106; Hatch v. Bassett, 52 N. Y. 359 ;» but, per contra, White v. White, 16 N. J. L. 202, 211, 31 Am. Dec. 232. §500, (a) To the same effect, see reviewing the English authorities: the recent cases of Horstmann v. Heirs of Eivers v. Gooding, 43 S. C. riege, 172 N. Y. 381, 65 N. E. 202, 428, 21 S. E. 310. § 501 EQUITY JURISPEUDENCE. 956 vised to trustees, upon trust, for any purpose, with power or directions given to the trustees to occupy, or possess, or manage, or lease, or even to cut down timber on any part of the lands, such mode of disposition is inconsistent with the claim of dower, and makes an election necessary. That a power of management and of leasing given to the trustees is inconsistent with dower is established by an overwhelm- ing array of decisions. ^ In connection with this form of § 501, 1 Birmingham v. Kirwan, 2 Sehoales & L. 444 ; Miall v. Brain, 4 Madd. 119; Butcher v. Kemp, 5 Madd. 61; Goodfellow v. Goodfellow, 18 Beav. 356. In Birmingham v. Kirwan, 2 Sehoales & L. 444, a tes- tator devised a house and grounds to trustees, upon trust, to permit his wife to enjoy the same for her life, she paying a small rent per acre for the land, and to keep the house in repair, and not to let it, and devised the residue of his lands to third persons. Lord Redesdale held that the dis- position made for the widow was inconsistent with her claim of dower in the house and grounds thus given for her use, but she was entitled to dower in the residue devised to the third persons. In Miall v. Brain, 4 Madd. 119, a testator devised all his real and personal estate to trustees, upon trust as to a certain specified house and grounds, for his' widow during her life, and to pay her out of the rents and profits of the estate a certain annuity for her life, and upon the further trust to permit his daughter to use, occupy, and enjoy a certain other house and grounds for her life, and the residue was to be divided among his children. Sir John Leach, M. R., held that the provision for the daughter showed a plain intent to devise the entirety, and was inconsistent with any dower in the same premises, "and that the same intention must necessarily be applied to the whole estate which passes by the same devise." In Butcher v. Kemp, 5 Madd. 61, a testator, having devised some lands to his wife for her life, and given her certain legacies, devised a farm to trustees during the minority of his daughter, and directed them to carry on the business of the farm, or let it on lease during the daughter's minority. Sir John Leach held that the widow was put to her election. "This case is within the principle of Miall v. Brain, 4 Madd. 119, which was lately before me, in which I held the claim of dower necessarily excluded by the gift of a house for the personal occupation and enjoyment of the testator's daugh- ter." The following cases are authorities for the rule that power or direction given to trustees to manage or lease, etc., is inconsistent with dower: Roadley v. Dixon, 3 Russ. 192; Parker v. Sowerby, 4 De Gex, M. & G. 321; 1 Drew. 488; Thompson v. Burra, L. R. 16 Eq. 592; Hall v. Hill, 1 Dru. & War. 94; 1 Con. & L. 120; Raynard v. Spence, 4 Beav. 103; Taylor v. Taylor, 1 Younge & C. 727; Lowes v. Lowes, 5 Hare, 501; 957 CONCERNING ELECTION. § 502 disposition the rule seems to be settled by the English courts, that where a testator devises the whole of his prop- erty together in general terms, and it is manifest that it was his intention that one part of the property should not be subject to dower, it follows that no part of the property embraced in the one general disposition should be consid- ered as so subject.2 § 502. Devise to Widow and Others in Equal Shares. — The rule is also settled in England by a current of decisions that where a testator devises lands, which are by law sub- ject to dower, in express terms, to his widow and others, — as, for example, his children, — in equal shares, this pro- vision for an equality among the devisees is inconsistent with a claim of dower, and creates the necessity for an elec- tion by the widow. ^ * Although this rule is sustained by the Pepper v. Dixon, 17 Sim. 200 ; Grayson v. Deakin, 3 De Gex & S. 298 ; O'Hara v. Chaine, 1 Jqnes & L. 662 ; Holdich v. Holdich, 2 Younge & C. 22. It is upon this ground that the decision in Villa Real v. Lord Galway, 1 Brown Ch. 292, is sustained. § 501, 2 Miall V. Brain, 4 Madd. 119, per Sir John Leach ; Roadley v. Dixon, 3 Russ. 192, per Lord Lyndhurst. §502, 1 Chalmers v. Storil, 2 Ves. & B. 222; Dickson v. Robinson, Jacob, 503; Roberts v. Smith, 1 Sim. & St. 513; Reynolds v. Torin, 1 Russ. 129, 133. In Chalmers v. Storil, 2 Ves. & B. 222, a testator said : "I give to my dear wife and my two children all my estates whatsoever, to be equally divided among them, whether real or personal," and after- wards specified the property given. Sir William Grant, M. R., held that this disposition was totally inconsistent with the claim of dower. "The testator directing all his real and personal estate to be equally divided, the same equality is intended to take place in the division of the real as of the personal estate, which cannot be if the widow takes out of it her dower, and then a third of the remaining two thirds." In the other cases cited, similar dispositions were made in the wills, and the same reasoning was used and the same conclusion reached by Sir Thomas Plumer, M. R., in one, and by Sir John Leach, V. C, in another. §502, (a) See, to the same effect, C. Rep. 450; Gloss v. Eldert, 37 N. Durfee's Petition, 14 R. I. 47; In re Y. Supp. 353, 16 Misc. Rep. 104; Purcell (R. L), 57 Atl. 377; Mc- Helme v. Strater, 52 N. J. Eq. 591, Gregor v. McGregor, 20 Grant (Can.) 30 Atl. 333. § 503 EQUITY JURISPRUDENCE. 958 authority of several direct decisions, it cannot he reconciled with 'the general principle, which underlies all cases of elec- tion between a testamentary disposition for the widow and her dower, — the principle that a testator is to be presumed to have intended to devise only what belonged to him and what he was able to give. The correctness of the rule has been repeatedly questioned. 2 b § 503. Election in Devises of Community Property. — In California and a few other states the common-law dower has been wholly abolished, and a species of interest, bor- rowed from the French and Spanish laws, has been intro- duced, called '* community property." This community property embraces both what at the common law would be real and personal estate, and in fact substantially the same rules govern the devolution of things real and things per- sonal. The law of these states recognizes two kinds of property which may belong to the spouses in case of mar- riage, — the ''separate property" and 'the "community property." The separate property of either husband or wife is what he or she owned at the time of marriage, and what he or she acquired during marriage by inheritance, devise, bequest, or gift, and the rents and profits thereof. The separate property of each spouse is wholly free from all interest or claim on the part of the other, and is entirely under the management, control, and disposition, testament- ary or otherwise, of the spouse to whom it belongs. All other property is community. It is a settled doctrine that § 502, 2 Where the testator devises all his estates to his widow and chil- dren, to be equally divided among them, the general principle can easily apply, that he intended to devise only what belonged to him, and that the equal division should therefore be made after the widow's dower had been assigned. Such a proceeding would fully satisfy the language of the will. See Ellis v. Lewis, 3 Hare, 315 ; and Bending v. Bending, 3 Kay & J. 261, per Page Wood, V. C. § 502, (b) This paragraph of the and followed, in In re Hatch's, Es- text is quoted, and the author's com- tate, 62 Vt. 300, 22 Am. St. Rep. 109, ments ou the English rule approved 18 Atl. 814. 959 CONCERNING ELECTION. § 503 all property acquired by the husband after the marriage, and during its continuance, is presumed to be community. During the marriage the husband alone has the custody, control, management, and power of disposition of the com- munity property, and it is liable for his debts; but still in theory the wife has an inchoate, undivided interest in it during the entire coverture, so that the husband cannot transfer it by mere gift or otherwise with the intent and purpose of defrauding her of her share, or of defeating her exclusive interest expectant upon his death.* Upon the death of the wife, the entire community property vests in the husband, without the necessity of any administration. Upon the death of the husband, the community property is first subject to the payment of debts and expenses of ad- ministration, and of the residue the widow is entitled abso- lutely to one undivided half, which is partitioned, and set apart, and vested in her in the proceedings for administer- ing upon the estate; while the other half is subject to the testamentary disposition of the husband, or if he dies in- testate, devolves upon specified persons as his "heirs." In other words, the husband's power extends only to one half of the community property, and he cannot by will de- vise or bequeath it in any manner or to any person so as to infringe upon the widow's vested right to one half.i ^ With respect to the widow's election, whenever the husband has made a provision for her benefit, and has assumed to dis- pose of all the remaining community property, the Cali- fornia code has only legislated by prescribing the time within which her election must be made, in cases where an election is necessary, and by declaring that certain con- duct by her shall amount to an election. The more impor- § 503, 1 See Cal. Civ. Code, § 1402. §503, (a) The text is cited to this community property is invalid unless effect in Watson v. Harris, 61 Tex. the wife joins therein. Civ. App. 263, 130 S. W. 237. By § 503, (b) The greater part of this Cal. Civ. Code, sec. 172, amendment paragraph is quoted in Pratt v, of 1891, a voluntary conveyance of Douglas, 38 N. J. Eq. 516, 535. § § 504, 505 EQUITY JURISPRUDENCE. 960 tant question, when a case for election arises from the pro- visions of a will, is left to be determined by the settled doctrines of equity jurisprudence which deal with that subject-matter, § 504. In all the cases which have hitherto arisen upon wills purporting to dispose of all the community property, or to dispose of more than the husband's share, the courts of California have proceeded strictly upon the analogy be- tween the widow's interest in the community property and her common-law right of dower, and have fully adopted the general doctrine which has been established in England and in many of the American states concerning election between a testamentary provision for the widow and her legal dower right. ^ It might, perhaps, have been argued that there is a close analogy between this peculiar kind of ownership called community property and the case of a testator who owns only an undivided share in specific lands which he disposes of by his will, and that the particular rule established by the English decisions in relation to this latter condition of fact might properly be applied to a testament- ary disposition made by a testator of the entire community property, of which he is only empowered to bequeath an undivided half. It is unnecessary to discuss the correct- ness of such a supposed analogy; it is enough to say that the courts have not adopted it, nor applied the particular rule to which I have referred. They have expressly fol- lowed the leading authorities dealing with the wife's dower, and have extended to the widow's share of the community property both the reasoning which has been employed and the conclusions which have been reached in regard to the necessity of election between a claim of dower and the benefits given by a husband's will. § 505. It cannot be said that the courts have settled any special rules applicable to particular forms of devise or §504, (a) The text is quoted in Pratt v. Douglas, 38 N. J. Eq. 516, 536. 961 CONCERNING ELECTION. § 505 bequest by the husband, but the general rule for the deter- mination of all eases they have established in a very clear and certain manner. Whenever a husband has made some testamentary provision for his wife, and has also assumed to dispose of more than his own half of the community property, in order that she shall be put to her election, the testamentary provision in her behalf must either be de- clared in express terms to be given to her in lieu of her own proprietary right and interest in the community property, or else an intention on his part that it shall be in lieu of such proprietary right must be deduced by clear and mani- fest implication from the will, founded upon the fact that the claim to her share of the community projDcrty would be inconsistent with the will, or so repugnant to its dispositions as to disturb and defeat them. An intent of the husband to dispose of his wife's share of the community property by his will, and thus to put her to an election, will not be readily inferred, and will never be inferred where the words of the gift may have their fair and natural import by ap- plying them only to the one half of the community property which he has the power to dispose of by will.^ § 505, 1 The courts have expressly relied on and followed the line of cases of which Adsit v. Adsit, 2 Johns. Ch. 448, 7 Am. Dec. 539, and Fuller V. Yates, 8 Paige, 325, are examples: Beard v. Knox, 5 Cal. 252, 257, 63 Am. Dec. 125; In re Buchanan's Estate, 8 Cal. 507, 510; Smith v. Smith, 12 Cal. 216, 225, 73 Am. Dec. 533; Scott v. Ward, 13 Cal. 458, 469, 470; Payne v. Payne, 18 Cal. 292, 301; Burton v. Lies, 21 Cal. 87, 91; Morrison V. Bowman, 29 Cal. 337, 346-348; In re Silvery, 42 Cal. 210; Broad v. Muri-ay, 44 Cal. 229; King v. Lagrange, 50 Cal. 328; In re Estate of Frey, 52 Cal. 658.« In Beard v. Knox, 5 Cal. 252, 257, 63 Am. Dec. 125, which is the lead- ing case in the state, a husband, being possessed of property worth twelve §505, (a) The text is quoted in Miller, 69 Wash. 456, 125 Pac. 974 Pratt V. Douglas, 38 N. J. Eq. 516, (extrinsic evidence not permitted to 536; in La Tourette v. La Tourette, show intent of testator to dispose of 15 Ariz. 200, Ann. Cas. 1915B, 70, 137 property over which he had no tes- I'ac. 426 (gift of all testator's prop- tamentary control). See, also, In re erty to his wife with remainder Gilmore, 81 Cal. 240, 22 Pac. 655; over; no election); in Herriek v. Estate of Gwin, 77 Cal. 313, 19 Pac. i 1-61 § 506 EQUITY JURISPRUDENCE. 962 § 506. The Remaining Questions Stated. — ^I have thus far discussed the subject of election considered as an equitable obligation resting upon a donee under certain circum- stances, and have described at large the most important in- thousand five hundred dollars, all community, bequeathed five hundred dollars to his wife, and all the residue to a daughter. The widow brought this action, claiming that she was entitled to one half of the entire estate of her own right, and also to the legacy of five hundred dollars, payable out of the one half which was at the disposal of her husband. It was urged by the defendant that by claiming and receiving the legacy she had precluded herself from asserting her legal right to the statutory half of the community property. The court sustained her contention in full, and held that no necessity for an election was created by such a disposition. This decision has been reaffirmed in all the other cases cited above, several of which are similar in their facts. In Payne v. Payne, 18 Cal. 292, 301, a husband, leaving a wife and children, gave all of his property, being community, to his wife absolutely. The court held that she took one half of the estate absolutely as of her own right by virtue of the community, and the other one half under and by virtue of the will. In the case of Silvery's Estate, 42 Cal. 210, a husband left all of his property, which was entirely community, to his wife for her life, and after her death the whole to be equally divided among his children. It was argued for the children that the widow must elect; but the court held that the general language of the will must be confined to the one half which the testator was able to dispose of; that the widow took one half absolutely as her own, and the other half for her life, with remainder to the children, and no necessity for an election arose. In the case of Frey's Estate, 52 Cal. 658, the testator gave one half of all his property, part being his separate estate and part community, to his wife, and the other half to nephews and nieces. The widow was held not bound to elect; the general language of the will must be confined in its operation to the share of the property 527; Estate of Stewart, 74 Cal. 98, Wauhop (Tex. Civ. App.), 143 S. W. 15 Pac. 445; Estate of Smith, 108 259; Gulf, C. & S. F. Ry. Co. v. Cal. 115, 119, 40 Pae. 1037; Estate of Brandenburg (Tex. Civ. App.), 167 Wickersham, 138 Cal. 355, 363, 70 S. W. 170; Payne v. Farley (Tex. Pac. 1076; In re Prager's Estate, 166 Civ. App.), 178 S. W. 793. In Pratt Cal. 450 137 Pac. 37 (mere fact v. Douglas, supra, the courts of New that testator left a large portion of Jersey had occasion to examine the his estate to his wife does not raise law of California on the subject of a presumption requiring her to election in cases of community prop- elect) • Moss v. Helsley, 60 Tex. 426; erty, and the conclusions stated in Autrey v. Stubenrauch, 63 Tex. Civ, the text were adopted and approved. App. 247, 133 S. W. 531; Sauvage v. 963 CONCERNING ELECTION. § 506 stances in which the necessity for an election is created by the provisions of an instrument of donation. I shall finish my treatment of the subject by examining the various in- cidents which may be connected with election in any of its which the testator could bequeath. King v. Lagrange, 50 Cal. 328,** is a very strong case. A testator owning land, all of which was community property, devised it all to his wife, with a power of sale, however, given to the executor, which, of course, was confined in its legal effect to the half of the real estate capable of being disposed of by the testator. The executor, in ignorance of the law concerning community property, sold all the land devised by virtue of his power; the purchaser, in like ignorance, supposed he was buying the entire estate, and the widow, in like igno- rance, received the purchase-money for the whole. Held, that the widow was not thereby precluded from setting up and enforcing a claim to the half of the land which, as community property, belonged to her of her own right, and that the will did not present a case for an election. Even if an election had been necessary, the acts of the widow, being done in ignorance of the tiTie facts and of her own rights, would not have amounted to an election. In Morrison v. Bowman, 29 Cal. 337, an election was held to be necessary. One Smith devised to his wife, for her life, one third of the Bodega rancho, and the house and furniture thereon, which raneho and all the property thereon was his separate estate, with remainder in fee to his children born from her, and the remaining two thirds of said rancho and property thereon he gave in fee to the same children. He also owned another rancho, which was all community property, called the Blucher rancho. The greater part of this he gave in specified portions for life to children, remainder in fee to grandchildren by a former wife. The will added that a certain portion of this Blucher rancho was left undisposed of by the foregoing provisions; that the testator intended during his lifetime to sell such portion for the purpose of raising funds to pay off his debts; but if this portion, or any of it, remained unsold, he directed his executors to sell the same and pay debts, and any surplus which should be still remaining after the debts were paid, he directed his executors to distribute, one third to his widow and the other two thirds to his children in a prescribed manner. The court, after laying down the general doctrine as stated in the text, held that the assertion by the widow of her right to one half of the community property would be inconsistent with and antagonistic to the dispositions made by the testator to herself and to his children and grandchildren, and therefore the will created the necessity for an election by the widow. While the opinion in this care- fully considered case undoubtedly adopts the general doctrine as it has § 505, (b) Affirmed, 61 Cal. 221. § 506 EQUITY JURISPRUDENCE. 964 aspects, and by wliicli the rights and duties of the parties who are bound to elect are affected. The most important of these incidents which remain to be considered are the following: 1. The persons who may elect, and especially persons under disabilities ; 2, Rights and privileges of those who are bound or entitled to elect; 3. Time of election; 4. Mode of election, whether express or implied ; 5. Effect of an election upon third persons, and upon the parties directly concerned in the donation; and 6. The equitable jurisdic- tion in cases of election. It will be found that in many of the states the time, and to a certain extent the mode, of electing in cases of dower — ^by far the most frequent occa- sion for election in this country — have been definitely fixed and regulated by positive statutes; and in several of the states the whole subject of election by widows, with refer- been established by the overwhelming weight of authority, yet it is more than doubtful whether this general doctrine was correctly applied to the facts. Comparing the provisions of the will with those found in very many of the decisions based upon the widow's dower, there does not seem to be anything in the language used by the testator which cannot, in pur- suance of the settled rule of interpretation, be confined in its operation to the share of the community property capable of being disposed of by him, and thus no necessary antagonism arises.* See, also, the following cases, decided by the probate court of San Francisco: In re Estate of Staus, Myrick's Prob. Rep. 5; In re Estate of Mumford, Myrick's Prob. Rep. 133 ; In re Estate of Low, Myrick's Prob. Rep. 148 ; In re Estate of Ricaud, Myrick's Prob. Rep. 158; In re Estate of Patton, Myrick's Prob. Rep. 243.d § 505, (c) For further instances of § 505, (d) The recent California a sufficient manifestation of intent cases fully sustain the earlier deci- to put to an election, see Estate of sionsj to the effect that a devise or Stewart, 74 Cal. 98, 15 Pac. 445; In bequest of "all the property of which re Vogt's Estate, 154 Cal. 508, 98 I may die possessed," or of "all my Pac. 265; Estate of Smith, 108 Cal. property," or of "all my lands," will 115, 40 Pac. 1037. In the last case not create a necessity for an elec- the testator undertook in terms to tion. See Estate of Gwin, 77 Cal. dispose of all the property of the 313, 19 Pac. 527; Estate of Gilmore, community, and declared that the 81 Cal. 240, 22 Pac. 655. See, also, will was made with full knowledge Herrick v. Miller, 69 Wash. 456, 12S of the property rights of the bus- Pac. 974. band and wife, and with her consent. 965 CONCERNING ELECTIOlSr. §§507,508 €nce to their dower and similar rights, is governed by pre- cise statutory rules. The doctrine of election and ques- tions under it are by such legislation wholly withdrawn from the domain of equity jurisprudence and jurisdiction ; the rules are made strictly legal, and are applied in tlie ordinary administration of decedents' estates. These stat- utes, and the effects produced by them, do not, therefore, properly come within the scope and purpose of a treatise upon equity jurisprudence. § 507. Who may Elect — Persons Under Disabilities. — Wherever a case involves the necessity for an election, it is an elementary rule that any person who is sui juris — not under disabilities — is both entitled and bound to elect.* Thus we have seen that an heir at law, a widow, a devisee, appointee, or any other donee, if the facts of the case re- quire an election, may and must elect. The only particular persons to be considered are those laboring under disabil- ities or incapacities of legal status. § 508. Married Women. — The question has arisen where the common-law doctrines concerning the legal incapacities of married women still prevail. There has been some con- flict of opinion with reference to the competency of a mar- ried woman to elect, so as to bind herself and her property without the intervention of a court, or the active participa- tion of her husband. It is now settled that a married woman is competent to elect by her own act without the intervention of the court ; and although the election affects her real estate, it need not be by an acknowledged deed. There undoubtedly are cases in which a reference has been directed by the court to inquire in which way it would be most for the interest of a married woman to elect under the circumstances; but the rule is now established, that, at least prima facie, or under ordinary circumstances, she is § 507, (a) The text is quoted in Drake v. Wild (Vt.), 39 Atl. 248. § 508 EQUITY JURISPRUDENCE. 966 able to elect for herself in a valid and binding manner. ^ If her husband also has an interest in the question, and differs in opinion from his wife, a difficulty would certainly exist. 2 In those American states where the modern legis- lation has destroyed all interest of the husband in his wife's property, and has clothed her, in respect to it, with the capacities and powers of a single woman, and has en- § 508, 1 Note of Mr. Swanston to Gretton v. Haward, 1 Swanst. 409, 413; Barrow v. Barrow, 4 Kay & J. 409, 419; Ardesoife v. Bennett, 2 Dick. 463; Willoughby v. Middleton, 2 Johns. & H. 344; Anderson v. Abbott, 23 Beav. 457; Savill v. Savill, 2 Coll. 721; Griggs v. Gibson, L. R. 1 Eq. 685; Brown v. Brown, L. R. 2 Eq. 481; but see Campbell v. Ingilby, 21 Beav. 567; Cooper v. Cooper, L. R. 7 H. L. 53, 67; Tiernan V. Roland, 15 Pa. St. 430, 452 ; Robinson v. Buck, 71 Pa. St. 386 ; Robert- son V. Stephens, 1 Ired. Eq. 247, 251; McQueen v. McQueen, 2 Jones Eq. 16, 62 Am. Dec. 205; but see Kreiser's Appeal, 69 Pa. St. 194.» A married woman cannot, however, elect so as to deal with or cut off her reversionary things in action : Robinson v. Wheelright, 6 De Gex, M. & G. 535, 546 ; Whittle v. Henning, 2 Phill. Ch. 731 ; Williams v. Mayne, 1 I. R. Eq. 519 ; but contra, Wall v. Wall, 15 Sim. 513, 520.* § 508, 2 See Griggs v. Gibson, L. R. 1 Eq. 685 ; Wall v. Wall, 15 Sim. 513, 521. A wife cannot, by her election, prejudice or affect her hus- band's marital rights: Brodie v. Barry, 2 Ves. & B. 127; see Lady Cavan V. Pulteney, 2 Ves. 544 ; Rutter v. Maclean, 4 Ves. 531. § 508, (a) See, also, Greenhill v. etraint on anticipation, and con- North British & Mercantile Ins. Co., tained a covenant by the wife (then [1893] 3 Ch. 474; Harle v. Jarman, an infant) to settle future property, [1895] 2 Ch. 419; In re Tongue, held, that the wife could not be com- [1915] 1 Ch. 390; In re Hargrove, pelled to elect between after-ac- [1915] 1 Ch. 398 (these last two quired property and her interest in cases concerning gifts with restraint the settled fund, but was entitled to on anticipation, the donees at the retain both. The presumption of a time of election being unmarried) ; general intention that every part of In re Vardon's Trusts, L. E. 31 Ch. an instrument shall take effect, Div. 275, reversing L. R. 28 Ch. Div. which is the foundation of the doc- 124, following Smith v. Lucas (Jes- trine of election, is here held to be sel, M. E.), L. E. 18 Ch. Div. 531, rebutted by the inconsistent particu- and In re Wheatley, L. E. 27 Ch. lar intention apparent in the instru- Div. 606, and disapproving Wil- ment. See, also, Hamilton v. Hamil- loughby V. Middleton, 2 J. & H. 344. ton, [1892] 1 Ch. 396, following In In In re Vardon's Trusts, a marriage re Vardon's Trusts, settlement settled a fund for the sep- §508, (b) See, also, Harle t. Jar- arate use of the wife with a re- man, [1895] 2 Ch. 419. 967 CONCERNING ELECTIOIT. §§509,510 abled her to manage, control, and even dispose of it, it seems to follow, as a necessary consequence, that she has the same ability of electing on her own behalf which is possessed by any person completely sui juris. § 509. Infants. — It is very clear that an infant cannot elect. In cases where an infant, if he had been an adult, would be bound to elect, the court has sometimes deferred the question of election, where this could be done without prejudice to the rights of other parties, until the infant came of age.^ The ordinary rule is for the court to direct an inquiry to be made whether it is for the infant's advan- tage to elect or not, and what election ought to be made. In other words, the court, as the result of a judicial exam- ination, itself makes the election on the infant's behalf. 2 » § 510. Lunatics. — In like manner, where the person en- titled or bound to elect is a lunatic, the court will make the election on his behalf, after having ascertained, through an inquiry, what action is most for his advantage ; and this is the rule, even though the lunatic is under the care of a committee. 1 * §509, 1 Streatfield v. Streatfield, Cas. t. Talb. 176; 1 Lead. Cas. Eq., 4th Am. ed., 504; Bor v. Bor, 2 Brown Pari. C, Tomlins's ed., 473; Boughton V. Boughton, 2 Ves. Sr. 12. § 509, 2 Mr. Swanston's note to Gretton v. Haward, 1 Swanst. 409, 413 ; Bigland v. Huddleston, 3 Brown Ch, 285, note; Chetwynd v. Fleetwood, 1 Brown Pari. C, Tomlins's ed., 300; Goodwyn v. Goodwyn, 1 Ves. Sr. 228; Ebrington v. Ebrington, 5 Madd. 117; Ashburnham v. Asbburnham, 13 Jur, 1111; Brown v. Brown, L. R. 2 Eq. 481; McQueen v. McQueen, 2 Jones Eq. 16, 62 Am. Dec. 205 ; Addison v. Bowie, 2 Bland, 606, 623. § 510, 1 In re Man-iott, 2 Molloy, 516; Kennedy v. Johnson, 65 Pa. St. 451, 3 Am. Rep. 650. In this latter case it was held that the committee §509, (a) See, also, In re Lord Abney, 182 Ala. 213, 62 South. 64; Chesham, L. R. 31 Ch. Div. 466 Bonnie's Guardian v. Haldeman (dictum). This paragraph of the (Ky.), 102 S. W. 308; Thorn v. Thorn, text is quoted, in substance, in Pen- 101 Md. 444, 61 AtL 193. nington v. Metropolitan Museum of § 510, (a) This paragraph is cited Art (N. J. Eq.), 55 Atl. 468, by in Philadelphia Trust, S. & D. Ins, Magie, Ch. See, further, Abney v. Co. v, Allison, 108 Me. 326, 39 L. R. §511 EQUITY JURISPRUDENCE. 968 § 511. Rights and Privileges of Persons Bound to Elect. It should be carefully observed that the rules to be men- tioned under this head were established in the absence of any legislation upon the subject; they assume that there are no statutes prescribing when an election is necessary, or the time within which an election must be made, or that the suffering a certain period of time to elapse without any affirmative action shall be regarded as an election. Stat- utes of such a nature, at least concerning widows for whom their husbands have made testamentary dispositions, have been enacted in very many of the states, and have materi- ally affected the equitable rights and privileges of those persons who are, under their provision, bound to elect. of a lunatic — a widow — cannot elect between the provisions of her hus- band's will and her dower; that it is the duty of the committee to apply to the court for leave to elect, and the court will only grant permission to elect in favor of either upon a due consideration of the advantages and disadvantages resulting to the lunatic from the choice. A. (N. S.) 39, 80 Atl. 833. See, in support of the text, Wilder v. Pigott, L. E. 22 Ch. Div. 263; McDonald v. Shaw, 92 Ark. 15, 28 L. R. A. (N. S.) 657, 121 S. W. 935; In re Stevens' Estate, 163 Iowa, 364, 144 N. W. 644 (discretion of lower court in making the election should, as a rule, not be disturbed); Miller v. Keown, 176 Ky. 117, 195 S. W. 430; Washburn v. Van Steenwyck, 32 Minn. 336; State v. Neland, 30 Minn. 277; Hardy v. Eiehards, 98 Miss. 625, 35 L. R. A. (N, S.) 1210, 54 South. 76 (election may be made by guardian, with the sanction of the court) ; Gaster v. Cas- ter's Estate, 90 Neb. 529, 134 N. W. 235 (statutory provision that the sur- viving spouse must make an election within one year will not prejudice an insane spouse for whom the county judge made no election) ; Pen- hallow v. Kimball, 61 N. H. 596; Van Steenwyck v. Washburn, 59 Wis. 483, 48 Am. Rep. 532, 17 N. W. 289. In Van Steenwyck v. Wash- burn, 59 Wis. 483, 501, 48 Am, Rep. 532, 17 N. W. 289, it was held that the provision of the Wisconsin stat- ute (Rev. Stats., sec. 2171) requiring a widow to elect does not apply to an insane widow, and an election could not be made by her, nor by her guardian in her behalf. But if proper application be made, the court will make the election for her; and in Washburn v. Van Steenwyck, 32 Minn. 33G, it was held that an elec- tion so made by the court for its insane ward binds her as to her dower rights in lands in another state. In Crenshaw v. Carpenter, 69 Ala. 572, 44 Am. Rep. 539, it was held that under the Alabama stat- utes (Code, sec. 2292), the right to elect was personal to the widow, and must be exercised within the time limited therefor, but if she be 9G9 CONCERNING ELECTION". § 512 § 512. Subjopt to the above-stated limitations, it is a well-settled rule of equity that a person bound to elect has a right to become fully informed of and to know all the facts affecting his choice, and upon which a fair and proper exer- cise of the power of election can depend. To this end he has a right to inquire into and ascertain all the circum- stances connected with the two properties, — that is, his own and the one conferred upon him, and especially their rela- tive condition and value; and he will not be compelled to elect until he has made, or at least has had an opportunity to make, such an examination as enables him to learn the truth, 1 a It follows that where an election has been made in ignorance or under a mistake as to the real condition § 512, 1 Dillon v. Parker, 1 Swanst. 359, 381, and note; 1 Jacob, 505; 1 Clark & F. 303; Wake v. Wake, 1 Ves. 335; Boynton v. Boynton, 1 Brown Ch. 445; Chalmers v. Storil, 2 Ves. & B. 222; Neuman v. Neuman 1 Brown Ch. 186; Whistler v. Whistler, 2 Ves. 367, 371; Thurston v. Clif- ton, 21 Beav. 447; Wilson v. Thombuiy, L. R. 10 Ch. 239, 248, 249; Doug- las V. Douglas, L. R. 12 Eq. 617, 637; Dewar v. Maitland, L. R. 2 Eq. 834, 838; Kreiser's Appeal, 69 Pa. St. 194; United States v. Duncan, 4 McLean, 99; Hall v. Hall, 2 McCord Ch. 269, 280; Snelgrove v. Snel- grove, 4 Desaus. Eq. 274, 300; Pinckney v. Pinckney, 2 Rich. Eq. 219, 237; Upshaw v. Upshaw, 2 Hen. & M. 381, 390, 3 Am. Dec. 632; Reaves V. Garrett, 34 Ala. 563; Bradford v. Kent, 43 Pa. St. 474, 484; Macknet insane, she cannot dissent from the election is amply provided for by will; and in a suit for dower, brought the will, and is hopelessly insane, after the time limited by the statute the court is not obliged to renounce for her to elect to take against the the will in her behalf merely because will, that the court could not elect that will increase the amount of the for her. Whether the court of chan- estate which will go to her relatives eery had jurisdiction to elect for her, on her death: Van Steenwyck v. in a suit brought within the time Washburn, 59 Wis. 483, 48 Am. Rep. limited by the statute, was expressly 532, 17 N. W. 289; In re Connor's not decided. In State v. Neland, 30 Estate, 254 Mo. 65, 49 L. R. A. (N. Minn. 277, it was held that the court S.) 1108, 162 S. W. 252, and cases might make the election, or direct cited; In re Bringhurst, 250 Pa. St. her guardian to do it, under the in- 9, 95 Atl. 320 (court will lean in structions of the court. It was fur- favor of will). ther held that the power to make the § 512, (a) The text is quoted in election was within the jurisdiction Hodgkins v. Ashby, 56 Colo. 553, 139 of the probate court. Where the Pac. 53&. widow for whom the court makes § 512 EQUITY JUKISPRUDENCE. 970 and value of the properties, or under a mistake as to the real nature and extent of the party's own rights, such a mistake is regarded as one of fact, rather than of law ; the election itself is not binding, and a court of equitable powers will permit it to be revoked, unless the rights of third per- sons have intervened which would be interfered with by the revocation.2 b This particular rule must necessarily V. Macknet, 29 N. J. Eq. 54; Cox v. Rogers, 77 Pa. St. 160; Waterbury V. Netherland, 6 Heisk. 512; Dabney v. Bailey, 42 Ga. 521; Richart v. Richart, 30 Iowa, 465. In order to enable him to ascertain the facts and to make a proper election in pursuance of the foregoing rule, a party may maintain an equitable suit to have all the necessary accounts of the proper- ties in question taken. See Mr. Swanston's note to Dillon v. Parker, 1 Swanst. 359, 381; citing Butricke v. Broadhurst, 3 Brown Ch. 88; 1 Ves. 171; Pusey v. Desbouverie, 3 P. Wms. 315. §512, 2 Dillon v. Parker, 1 Swanst. 359, 381, note; 1 Clark & P. 303; Pusey V. Desbouverie, 3 P. Wms. 315; Wake v. Wake, 3 Brown Ch. 255; Kidney v. Coussmaker, 12 Ves. 136, 152; Snelgrove v. Snelgrove, 4 Desaus. Eq. 27; Hall v. Hall, 2 McCord Ch. 269, 289; Adsit v. Adsit, 2 Johns. Ch. 448, 451, 7 Am. Dec. 539. In Macknet v. Macknet, 29 §512, (b) The text is quoted in year has elapsed); Wohlers v. In re McFarlin, 9 Del. Ch. 430, 75 Griesse (Iowa), 161 N. W. 662; Weis- Atl. 281 (widow may withdraw elec- ner v. Weisner, 89 Kan. 352, 131 tion to take against will, made under Pac. 608 (under Kansas statute, it mistaken advice of counsel as to ex- is necessary to an election that the tent of her dower right) ; Tolley v. court of probate explain the widow's Poteet, 62 W. Va. 231, 57 S. i^. Sll. rights to her); Eddy v. Eddy, 168 The text is cited to this effect in Fed. 590, 93 C. C. A. 586 (under Pratt V. Douglas, 38 N. J. Eq. 516, Michigan statutory limitation of one 539; Standard Oil Co. v. Hawkins, year, fraudulent concealment by 74 Fed. 395, 33 L. E. A. 739, 20 C. C. executor whereby widow is kept in A. 468, 46 U. S. App. 115; In re ignorance of her right to elect, and Wickersham's Estate, 138 Cal. 355, accepts the meager provisions of the 363, 70 Pac. 1076; and in Payne v. will); Egger v. Egger, 225 Mo. 116, Farley (Tex. Civ. App.), 178 S. W. 135 Am. St. Rep. 566, 123 S. W. 928 793 (wife an ignorant colored (provision of will accepted in igno- woman). See, also, Austell v. Swan, ranee of legal rights); Hill v. Hill, 74 Ga. 278; Whitesell v. Strickler, 62 N. J. L. 442, 41 Atl. 943; Rich v. 167 Ind. 602, 119 Am. St. Eep. 524, Morisey, 149 N. C. 47, 62 S. E. 702; 78 N. E. 845 (where election pro- Elbert v. O'Neill, 102 Pa. St. 302; cured by undue influence of relatives Woodburn's Estate, 138 Pa. St. 606, and of a circuit judge, may bring 21 Am. St. Rep. 932, 21 Atl. 16; action to rescind election, though the Cooley v. Houston, 229 Pa. St. 495, 971 CONCERNING ELECTION. § 512 have been materially modified by the statutes in many states, which declare in positive terms that an election by widows can only be made within a certain prescribed period, and that if they sutTer the time to elapse without taking any N. J. Eq. 54, it was held that where an election by a widow of dower, instead of a legacy given in lieu of dower, was made under a mistake as to her rights under the will, and as to the amount which she would receive from the bequest, a court of equity may allow her to revoke her election, where no prejudice would thereby be done to the subsequently acquired rights of others. Such a mistake is of fact, rather than of law.*' In Cox V. Rogers, 77 Pa. St. 160, a widow had by her conduct unequivocally elected in favor of a legacy given to her in lieu of her dower in a farm which her husband devised to his son. Held, that after a considerable lapse of time the election could not be disturbed, even although made in ignorance of her right. In Waterbury v. Netherland, 6 Heisk. 512, the statutory rule that a widow failing to dissent from her husband's will within the prescribed time is conclusively presumed to have elected to take under the will was held to be compulsory and binding upon a widow. Even where she had been erroneously advised as to the length of the period by one of the executors, — an eminent lawyer, — and had acted upon his opinion in the matter, the maxim, Ignorantia legis non excusat, was held to apply. In Dabney v. Bailey, 42 Ga. 521, it was held that a widow who had elected to take a legacy instead of dower, under the erroneous supposition that her husband's estate is solvent, may, on discovering it to be insolvent, revoke her election, and claim her dower. In Richart v. Richart, 30 Iowa, 465, the husband's will gave his widow one third of the real estate in lieu of dower. She elected to take this gift, in considera- tion that all the heirs should agree to release and assign to her in addition one third of the personal estate. A part only of the heirs finally consent- ing to this arrangement, she was held not bound by her election, but that she could relinquish the testamentary gift and claim her dower. See, also, Light v. Light, 21 Pa. St. 407, and Bradford v. Kents, 43 Pa. St. 475, as to an election made under a mistake merely of the party's legal rights.* 78 Atl. 1129 (acceptance of devise • § 512, (c) To a similar effect, see in ignorance of rights as heirs, no Evans's Appeal, 51 Conn. 435. election); Payton v. Bower, 14 E. I. §512, (d) In Akin v. Kellogg, 119 375; Packard v. De Miranda (Tex. N. Y. 441, 23 N. E. 1046, it was bold Civ. App.), 146 S. W. 211 (election that the provision of the New York made in ignorance of material statute requiring an election to be facts) ; Waggoner v. Waggoner, 111 made within one year, and declaring Va. 325, 30 L. R. A. (N. S.) 644, 68 that the widow should be deemed to S. E. 990. have made election to take under the § 513 EQUITY JUEISPEUDENCB. 972 step, they sTiall be deemed to have elected, or to have aban- doned the right of electing; and so the decisions seem to hold. § 513. Time of Election. — It is almost impossible to sepa- rate the matter of time from other circumstances, and from the conduct of the party, so as to arrive at any definite rule. The only question involving the element of time is. What is the period during which the continued acts of the party originally entitled to elect will become binding upon him, either as amounting to an election by conduct, or as amount- ing to a waiver of the right to elect? Under the purely equitable doctrines, unmodified by statute, there is, as it seems, no limit in point of time to a right to elect, unless it can be shown that injury would result to third persons by delay. Is. Nevertheless it is clear that by the acquiescence and delay of the one entitled to elect, third persons may acquire rights in the property originally subject to an elec- § 513, 1 Dillon v. Parker, 1 Swanst. 381, 386 ; Briee v. Briee, 2 Molloy, 21; Wake v. Wake, 1 Ves. 335; Butricke v. Brodhurst, 3 Brown Ch. 90; 1 Ves. 172; Reynard v. Spence, 4 Beav. 103; Sopwith v. Maugham, 30 Beav. 235. In Wake v. Wake, 1 Ves. 335, a widow had for three years received a legacy and annuity under a will, in ignorance of her rights, and it was held that she had not thereby elected nor lost her right of elect- ing. In Reynard v. Spenee, 4 Beav. 103, a widow received, under like circumstances, an annuity for five years, with the same result. In Sop- with V. Maugham, 30 Beav. 235, a widow, in ignorance of her right of dower, had. for sixteen years enjoyed a provision expressly given her by will in lieu of dower; but even after this great lapse of time she was held not to have elected, nor to have waived her right of election. will unless within that time she en- although she was ignorant of the ex- ter upon the land to be assigned to tent of her husband's estate, and her for dower, or commences proceed- was induced to omit to take the ings for the assignment thereof, has necessary steps to claim dower by the effect of a statute of limitations, reason of the representations of the and she is at once, on the death of executor and of the principal benefi- the testator, charged with the duty ciary under the will as to the value of informing herself, so as to make of her dower right, her election, and that if she delays § 513, (a) The text is cited to this beyond that time, before bringing effect in Hodgkins v. Ashby, 56 Colo. her action, the court cannot aid her, 553, 139 Pae. 538. 973 CONCERNING ELECTION. § 513 tion, which equity will not suffer to be disturbed by means of a subsequent election.^ b It seems, on the other hand, that a person having the right to compel an election does not, in general, forfeit the right by a delay in its cnforce- ment.3 These purely equitable rules, at least so far as they affect widows electing between testamentary benefits and dower, have been greatly modified by legislation in this country. In very many of the states statutes have been passed which prescribe definite periods of time within which the right of election between dower and a provision made by will must be exercised. These statutes are collected and arranged according to their several types in the foot-note.^ §513, 2 Tibbitts V. Tibbitts, 19 Ves. 663; Dewar v. Maitland, L. R. 2 Eq. 834. § 513, 3 Spread v. Morgan, 11 H. L. Cas. 588. § 513, 4 In the note under the preceding § 494 I have arranged the states in which statutes have changed the equitable doctrines concerning election between a husband's testamentary gift and dower. In the follow- ing states the doctrines of equity seem to be left unaltered, and are ap- plied either to the widow's dower, or to her statutory portion given in place of dower. In most of them, however, a certain period is prescribed within which her election must be made, when such election is necessary.® § 513, (b) This paragraph is cited had allowed the statutory period to in Hoggard v. Jordan, 140 N. C. 610, elapse without making any election. 6 Ann. Cas. 332, 4 L, R. A. (N. S.) See Harding v. Harding, 140 Ky. 1065, 53 S. E. 220 (for nine years 277, Ann. Cas. 1912B, 526, 130 S. W. widow acted under the will, and her 1098 (same result where survivor heirs acquiesced for eight years after dies before will is probated); Nord- her death). quist's Estate v. Sahlbom, 114 Minn. § 513, (<•) Statutory Right to Elect 329, 131 N. W. 323 (though widow Is Personal. — The right to elect un- was insane, no election having been dcr tliese statutes, and under the made for her by the court or her statutes enumerated ante, in the guardian) ; Fergus v. Schiable, 91 notes, to § 494, is purely personal; Neb. 180, 135 N. W. 448 (though that is to say, it cannot be exercised election made under mistake as to by the heirs, personal representa- her rights, if widow took no steps tives, devisees or legatees of the per- in her lifetime to have her elec- son entitled to elect, if she (or he) tion set aside, administrator can- dies within the period limited by the not make election for her); Flynn statute. The effect upon persons v. McDermott, 183 N. Y. 62, 111 Am, claiming under the party entitled St. Rep. 687, 5 Ann. Cas. 81, 2 I.. to elect is the same as if such party R. A. (N. S.) 959, and note, 75 N. § 514 EQUITY JURISPRUDENCE. 974 § 514. Mode of Election, Express or Implied — What Con- duct Amounts to an Election. — Independently of the stat- utes referred to in the foregoing paragraph, which have altered the equitable rules on the subject in very many states, an election may be either express or implied. An d Connecticut. — Gen. Stats. 1875, p. 377, sec. 4 : ® Widow must, within two months after the expiration of the time limited for the presentation of claims, waive the testamentary gift by a writing. See Lord v. Lord, 23 Conn. 327; Hickey v. Hickey, 26 Conn. 261. Florida. — Bush's Dig., p. 292, e. 44, sec. 1 : ' Widow may dissent from the will within one year after probate. — N. B. It is possible that the statute may be so construed as to make an election necessary whenever any devise or bequest is given to the widow. If so, this state should be- long in the first class, under § 494, ante. lowa.—l Miller's Rev. Code, 1880, p. 624, sec. 2452 : Widow must elect within six months after notice of the provisions of the will. As to when election is or is not necessary, see Metteer v. Wiley, 34 Iowa, 215 ; Corriel V. Ham, 2 Iowa, 552; Sully v. Nebergall, 30 Iowa, 339; Clark v. Griffith 4 Iowa, 405; McGuire v. Brown, 41 Iowa, 650.« Election by conduct E. 931; In re McClintock's Estate, acted to his detriment: In re Dun 240 Pa. 543, 87 Atl. 703. Moreover, phy's Estate, 147 Cal. 95, 81 Pac. 315 since the right of election is per- Colorado. — The will of the husband sonal, creditors of the person en- cannot deprive the wife of her statu titled to elect cannot force him to tory share of his estate, without her make an election, nor object to the consent in writing executed after his result of the exercise of his discre- death: Rev. Stats. 1908, §7070. If tion; Robertson v. Schard, 142 Iowa, Bhe dies without giving such consent, 500, 134 Am. St. Rep. 430, 119 N. W. her heirs take her statutory estate, 529; Bains v. Globe Bank & Trust and not under the will: Hodgkins Co., 136 Ky. 332, 136 Am. St. Rep. v. Ashby, 56 Colo. 553, 139 Pac. 538. 263, 124 S. W. 343; Pike County v. §513, (e) Connecticut.— Gen. StSits. Sowards, 147 Ky. 37, 143 S. W. 745 1888, sec. 621. (husband elected in favor of will, § 513, (t) Florida. — McClellan's which left him nothing); In re Flem- Dig. 1881, p. 475, c. 95, sec. 1. ing's Estate, 217 Pa. 610, 10 Ann. §513, (e) Jowo.— McClain's' Code Cas. 826, 11 L. R. A. (N. S.) 379, 66 1888, sec. 3656. See, also. Potter v. Atl. 874. Worley, 57 Iowa, 66, 7 N. W. 685, 10 §513, («l) CaZi/orma.— Election of N. W. 298; Blair v. Wilson, 57 Iowa, widow may be made at any time be- 148, 10 N. W. 327; Snyder v. Miller, fore decree of distribution. She is 67 Iowa, 261, 25 N. W. 240; Daugh- not estopped from electing to take erty v. Daugherty, 69 Iowa, 679, 29 under the will by a written notice N. W. 778; Estate of Blaney, 73 to the contrary, on which no one has Iowa, 114, 34 N. W. 768; Howard v. 975 CONCERNING ELECTION. § 514 express election is made by some single unequivocal act of the party, accompanied by language showing his intention to elect, and the fact of his electing in a positive, unmistak- able manner, — as, for example, by the execution of a written See Stoddard v. Cuteompt, 41 Iowa, 329. The statute requires action on her part: Kyne v. Kyne, 48 Iowa, 21, 24; and does not apply to personal property: In re Davis's Estate, 36 Iowa, 24. Kentucky.— Gen. Stats. 1S73, p. 373, sec. 12 : ^ Election against the will must be within one year after probate. See Dawson v. Hayes, 1 Met. (Ky.) 461; Barnett's Adm'r v. Barnett, 1 Met. (Ky.) 257, 258, 259; Worsley's Ex'r v. Worsley, 16 B. Mon. 470. New Hampshire. — Gen. Stats. 1867, p. 358, sec. 13: Widow may elect against the will by a writing, but the time within which she must so elect is not prescribed.* New York. — 1 Rev. Stats., p. 741, sees. 13, 14: Widow is deemed to have elected to take under the will, unless within one year after her hus- band's death she begins proceedings to recover her dower, or enters on the lands assigned for dower. See Lewis v. Smith, 9 N. Y. 504, 511 61 Am. Dec. 706; Jackson v. Churchill, 7 Cow. 287, 17 Am. Dec. 514; Haw- ley V. James, 5 Paige, 318, 447; Bull v. Church, 5 Hill, 206; Church v. Bull, 2 Denio, 430, 43 Am. Dec. 754; Leonard v. Steele, 4 Barb. 20.-I Watson, 76 Iowa, 229, 41 N. W. 45. sufficient); Thorpe v. Lyones, 160 Under the statute in operation vmtil Iowa, 415, 142 N. W. 82; In re Ste- 1897 (Code 1873, § 2452), the widow's vens' Estate, 163 Iowa, 364, 144 N. share was not affected by the will W. 644. By the present statute of her husband unless she consented (Code, § 3376), the system is entirely thereto within six months of notice changed, and Iowa now belongs of its contents; in other words, her among the states enumerated ante, inaction was an implied election note to § 494. against the will: Warner v. Hamill, §513, (l») Kentucky. — Gen. Stats. 134 Iowa, 279, 111 N. W. 939; Jones 1887, c. 31. See, also, Mercer v. v. Jones, 137 Iowa, 382, 114 N. W. Smith, 32 Ky. Law Eep. 1003, ]07 1066 (widow dies without election S. W. 1196; Smith v. Perkins 148 and devises her distributive share); Ky. 387, 146 S. W. 758; Franzell's Mobn V. Mohn, 148 Iowa, 288, 126 Ex'r .v. Franzell, 153 Ky. 171, 154 N. W. 1127; Kierulff v. Harlan, 150 S. W. 912 (executor liable to widow Iowa, 671, 130 N. W. 789; Thorpe v. if he disposes of her property within Lyones, 160 Iowa, 415, 142 N. W. 82; the year). In re Stevens' Estate, 163 Iowa, 364, §513, (») New Eainpshire. — If an 144 N. W. 644. The consent to the election is necessary, it must be will must be a matter of record: made seasonably; Hovey v. Hovey, Jones v. Jones, 137 Iowa, 382, 114 61 N. H. 599. N. W. 1066; Mohn v. Mohn, 148 §513, (J) New York. — 4 Kev. Iowa, 288, 126 N. W. 1127 (election Stats., 8th ed., p. 2455. See Akin v. § 515 EQUITY JURISPRUDENCE. 976 instrument declaring the election.* As the election hecomes fixed by such a definite act, and at such precise time, no questions concerning it can arise. § 515. Implied. — An election may also be implied — that is, inferred — from the conduct of the party, his acts, omis- sions, modes of dealing with either property, acceptance of rents and profits, and the like. Courts of equity have never laid down any rule determining for all cases what conduct shall amount to an implied election, but each case must de- pend in great measure upon its own circumstances. ^ * The Rliode Island.— Gen. Stats. 1872, p. 374, sec. 11 : ^ Widow must elect against the will by a writing within one year after probate. Vermont.— Gen. Stats. 1862-70, p. 412, sees. 5, Q:^ Widow may elect within eight months after probate. m § 515, 1 See note to Dillon v. Parker, 1 Swanst. 359, 381, 382, and cases there cited; Padbury v. Clark, 2 Macn. & G. 298, 306, 307; Whit- ridge V. Parkhurst, 20 Md. 62, 72. In Padbury v. Clark, 2 Macn. & G. 298, Lord Cottenham said: "If a party, being bound to elect between two properties, not being called upon so to elect by the other parties inter- ested, continues in the receipt of the. rents and profits of both, such re- ceipt, affording no proof of preference, cannot be an election to take the one and reject the other; and so if the other property be under circum- stances that it does not yield rent to be received by the party liable to Kellogg, 119 N. Y. 441, 23 N. E. 1046 own right and also makes provision (has effect of a statute of limita- for her by his will: Pence v. Life, tions). 10-i Va. 518, 521, 52 S. E. 257; Wag- §513, (k) Ehode Island. — Pub. goner v. Waggoner, 111 Va. 325, 30 Stats. 1882, p. 472, sec. 11. See In L, E. A. (N. S.) 644, 68 S. E. 990. re Cook, 30 R. I. 494, 76 Atl. 356. §514, (a) This paragraph is cited §513, (1) Vermont. — Rev. Laws in In re Peck's Estate, 80 Vt. 469, 1880 sec. 2219. See In re Baker's 68 Atl. 433 (election according to Estate, 81 Vt. 505, 71 Atl. 190. the mode prescribed by the statute §513, (n») Virginia. — Code 1904, is, in law, an express election). In § 2271, requiring that a widow must Re Dunphy's Estate, 147 Cal. 95, 81 renounce, if at all, the provisions of Pae. 315, it is held that the widow her husband's will within one year is not estopped from electing to after its admission to probate, ap- take under the will by a written plies to election between provisions notice to the contrary, on which no made by the law and by the will, one has acted to his detriment, and not to the ease where the hus- § 515, (a) The text is quoted in band undertakes to dispose of prop- Owens v. Andrews, 17 N. M. 597, 49 erty belonging to his wife in her L. R. A. (N. S.) 1072, 131 Pac. 1004. 977 CONCERNING ELECTION". § 515 following rules, however, have been fairly settled by the courts as guides in determining the general question. To raise an inference of election from the party's conduct merely, it must appear that he knew of his right to elect, and not merely of the instrument giving such right,^ and that he had full knowledge of all the facts concerning the properties.^ ^ As an election is necessarily a definite choice by the party to take one of the properties and to reject the other, his conduct, in order that an election may be inferred, must be done with an intention to elect, and must show such an intention.'^ The intention, however, may be inferred from a series of unequivocal acts.'* ^ In applying these gen- eral rules, the following particular conclusions as to what elect, but such party, particularly if with the knowledge and consent of the one who is entitled to call for such election, deal with this property as his own, it would seem that such acts ought to be equally unavailable to prove an actual election; for in both cases there is, as far as circum- stances will admit, an equal dealing with the two properties, and there- fore an absence of proof of any intention to elect the one and reject the other." § 515, 2 Edwards v. Morgan, 1 Bligh, N. S., 401 ; Briscoe v. Briscoe, 1 Jones & L. 334, 7 I. R. Eq. 123 ; Sweetman v. Sweetman, 2 I. R. Eq. 141. § 515, 3 Sopwith v. Maugham, 30 Beav. 235 ; Worthington v. Wiggin- ton, 20 Beav. 67 ; and see ante, § 512, and cases cited in note. § 515, 4 Spread v. Morgan, 11 H. L. Cas. 588 ; Dillon v. Parker, 1 Swanst. 359, 380, 387; Padbury v. Clark, 2 Macn. & G. 298, 306, 307; §515, (b) The text is quoted in §515, (c) The text is quoted in Owens V. Andrews, 17 N. M. 597, Showalter's Ex'rs v. Showalter, 107 49 L. B. A. (N. S.) 1072, 131 Pac. Va. 713, 60 S. E. 48; Waggoner v. 1004 (widow did not have full Waggoner, 111 Va. 325, 30 L. R. A. knowledge of her rights); She- (N. S.) 644, 68 S. E. 99a -rralter's Ex'rs v. Showalter, 107 Va. §515, (d) The text is quoted and 713, 60 S. E. 48 (widow's continuing the rules there stated adopted, in to live on the tract devised to her, Burroughs v. De Gouts, 70 Gal. 371, and selecting certain personal prop- 11 Pac. 734; In re Smith, 108 Gal. erty bequeathed to her, are equivo- 115, 120, 40 Pac. 1037; and cited, in cal acts, in the absence of proof of Morse v. Hackensack Sav. Bk., 47 knowledge of the facts or of her N. J. Eq. 279, 12 I*. R. A. 62, 20 Atl. rights); Waggoner v. Waggoner, 961. See, also. In re Peck's Estate, 111 Va. 325, 30 L. R. A. (N. S.) 644, 80 Vt. 469, 68 Atl. 433. 68 S. E. 990. 1—63 § 515 EQUITY JURISPRUDENCE. 978 conduct may or may not amount to an election seem to have been definitely reached : Where a person, bound to elect be- tween two properties, continues in possession, or enjoy- ment, or receipt of the rents and profits of both, without being called upon by the other party interested to elect, this conduct indicates no intention of taking one and rejecting the other, and does not therefore amount to an election.^ ® Taking the interest or income of one fund or property only is, in general, an election to take the fund or property pro- ducing the interest or income. ^ Settling one of two funds, between which the settlor is bound to elect, is an election to take the fund so settled. '' Suffering a recovery of lands devised in tail is an election to take those lands. ^ A recital in a deed may amount to an election or be evidence of an election.9 I have collected in the foot-note the important cases which deal with the question of an election implied from the conduct of the party who is entitled or bound to elect. 1^ The rule seems to be plainly deducible from the Worthington v. Wigginton, 20 Beav. 67; Campbell v. Ingilby, 21 Beav. 582; Stratford v. Powell, 1 Ball & B. 1; Edwards v. Morgan, McClel. 541, 13 Price, 782, 1 Bligh, N. S., 401. § 515, 5 Padbury v. Clark, 2 Macn. & G. 298, 306, 307; Spread v. Mor- gan, 11 H. L. Cas. 588; Whitridge v. Parkhiirst, 20 Md. 62, 72. § 515, 6 Ardesoife v. Bennett, 2 Dick. 463 ; Dewar v. Maitland, L. R. 2 Eq. 834. § 515, 7 Briscoe v. Briscoe, 1 Jones & L. 334. § 515, 8 Giddings v. Giddings, 3 Russ. 241. § 515, 9 Dillon v. Parker, 1 Jacob, 505; 1 Clark &r. 303. §515, 10 Dillon v. Parker, 1 Swanst. 359, 381, 382, and note; Wilson V. Thornbury, L. R. 10 Ch. 239, 248, 249 ; Dewar v. Maitland, L. R. 2 Eq. 834; Padbury v. Clark, 2 Macn. & G. 298; Brice v. Brice, 2 Molloy, 21; Giddings v. Giddings, 3 Russ. 241; Miller v. Thurgood, 33 Beav. 490; Fitzsimmons v. Fitzsimmons, 28 Beav. 417; Honeywood v. Forster, 30 Beav. 14; Howells v. Jenkins, 2 Johns. & H. 706; 1 De Gex, J. & G. 617; § 515, (e) The text is cited to this See, also, Martin v, Martin, 80 N. J. effect in Madden v. Louisville, N. O. Eq. 359, 84 Atl. 619; Bebcut v. Quick, & T. R'y Co., 66 Miss. 258', 6 South. 81 Ohio St. 196, 90 N. E. 162 (donee 181. The text is quoted in Wag- makes a claim both under and goner v. Waggoner, 111 Va. 325, 30 against terms of the will), li, K. A. (N. S.) 644, 68 S. E. 990. 979 CONCERNING ELECTION. § 516 American cases which are placed in the note, that where a widow is required to elect between a testamentary pro- vision in her favor and her dower, any unequivocal act of dealing with the property given by the will as her own, or Spread v. Morgan, 11 H. L. Cas. 588; Reynard v. Spence, 4 Beav. 103; Sopwith V. Maugham, 30 Beav. 235; Wake v. Wake, 1 Ves. 335; Butricke V. Brodhurst, 3 Brown Ch. 90, 1 Ves. 172; Tibbitts v. Tibbitts, 19 Ves. 663; Whitridge v. Parkhurst, 20 Md. 62, 72; Marriott v. Sam Badger, 5 Md. 306; Upshaw v. Upshaw, 2 Hen. & M. 381, 3 Am. Dec. 632; Caston V. Caston, 2 Rich. Eq. 1; Binst v. Dawes, 3 Rich. Eq. 281; Bradford v. Kent, 43 Pa. St. 474, 484; Anderson's Appeal, 36 Pa. St. 476; Adlum v. Yard, 1 Rawle, 163, 171, 18 Am. Dec. 608; Heron v. Hoffner, 3 Rawle, 393, 396; Cauffman v. Cauffman, 17 Serg. & R. 16, 25; Wilson v. Hamil- ton, 9 Serg. & R. 424; O'DriscoU v. Roger, 2 Desaus. Eq. 295, 299; Snel- grove V. Snelgrove, 4 Desaus. Eq. 274, 300; Shaw v. Shaw, 2 Dana, 342; Clay V. Hart, 7 Dana, 1, 6; Watkins v. Watkins, 7 Serg. 283; Reaves v. Garrett, 34 Ala. 563; Kinnaird v. Williams's Adm'r, 8 Leigh, 400, 31 Am. Dec. 658; Stark v. Hunton, 1 N. J. Eq. 217, 227; Sloan v. Whitaker, 58 Ga. 319; Sewell v. Smith, 54 Ga. 567; Stoddard v. Cutcompt, 41 Iowa, 329; Cox v. Rogers, 77 Pa. St. 160; Camden Mut. Ins. Co. v. Jones, 23 N. J. Eq. 171; Crocker v. Beal, 1 Low. 416.« §515, («) See, also. Estate of can, 67 Ga. 61; Forester v. Watford, Stewart, 74 Cal. 98, 15 Pac 445; 67 Ga. 508; Koelling v. Foster, 254 Estate of Smith, 108 Cal. 115, 121, 111. 494, 98 N. E. 952 (widow es- 40 Pac. 1037; Williams v. Williams, topped to elect against the will by 170 Cal. 625, 151 Pac. 10 (where enjoyment of the devise for seven husband was entitled absolutely to years) ; Pace v. Pace, 271 111. 114, all his wife's property, but probated 110 N. E. 878 (merely acting as her will, making him executor, executrix not an election in favor of under which he had only a life es- will) : Young v. Biehl, 166 Ind. 357, tate, and acted for some time under 77 N. E. 406; In re Hamilton's Es- the decree of distribution, he was tate, 148 Iowa, 127, 126 N. W. 776 not estopped to claim the whole (receipt of allowance for support estate, the rights of third persons not bar to claiming provisions of not having intervened) ; Hodgkins will) ; Pirtle v. Pirtle, 84 Kan. 782, v. Ashby, 56 Colo. 553, 139 Pac, 538 115 Pac. 543 (accepting benefits (accepting widow's allowance is under will); Williams v. Campbell, equivocal; and joining with the 85 Kan. 631, 118 Pac. 1074 (same); executor in proceedings to obtain Egger v. E'gger, 225 Mo. 116, 135 construction of the will is necessary Am. St. Rep. 566, 123 S. W. 928; in order to enable her to elect in- Zook v. Welty, 156 Mo. App. 703, telligently) ; Wright v. Cella, 9 Del. 137 S. W. 989; Cobb v. Macfarland, Ch. 188, 85 Atl. 1078; Churchill v. 87 Neb. 408, 127 N. W. 377; Cun- Eee, 66 Ga. 621; Johnston v. Dun- ningham's Estate, 137 Pa. St. 621, § 516 EQUITY JURISPRUDENCE. 980 the exercise of any unmistakable act of ownership over it, if done with knowledge of her right to elect, and not through a clear mistake as to the condition and value of the prop- erty, will be deemed an election by her to take under the will, and to reject her dower.s § 516. Effects of an Election. — The effects of an election when once made are to be considered with reference to two different classes of persons, namely, those who succeed, or represent, or derive title from the party making the elec- tion, and those who are originally interested in the prop- erty subject to the election by reason of being beneficiaries under the instrument of donation, and whose interests are therefore directly affected by the election. Where an elec- tion is once made by the party bound to elect, either ex- pressly or inferred from his conduct, it binds not only himself, but also those parties who claim under him, his representatives and heirs. ^ «• Wherever the person bound § 516, 1 Earl of Northumberland v. Earl of Aylesford, Amb. 540, 657; Dewar v. Maitland, L. R. 2 Eq. 834; Stratford v. Powell, 1 Ball & B. 1; Ardesoife v. Bennett, 2 Dick. 463; and see, with respect to acts binding 21 Am. St. Rep. 901, 20 Atl. 714 Payton v. Bowen, 14 R. I. 375 Penn v. Guggenheimer, 76 Va. 839 538; Benedict v. Wilmarth (Fla.), 35 South. 84. See, also, Prince v. Prince, 64 Wash. 552, 117 Pac. 255; Cooper V. Cooper, 77 Va. 198; Prince Thorpe v. Ljones, 160 Iowa, 415, V. Prince, 64 Wash. 552, 117 Pac. 142 N. W. 82; Pace t. Pace, 271 111. 255; Pence v. Life, 104 Va. 518, 52 114, 110 N. E. 878; Williams t. S. E. 257 (testator devised to widow Williams, 170 Cal. 625, 151 Pac. 10. a life estate in her own lands, and § 516, (a) The text is quoted in she conveyed a part in fee; held, an Penn v. Guggenheimer, 76 Va. 839, election to stand on her own title). 851. That an election formally § 515, (g) The text is quoted in made in favor of the will in one Penn v. Guggenheimer, 76 Va. 839, state ia an estoppel to claim against S50; Burroughs v. De Gouts, 70 Cal. the will in another state, see Mech- 361, 11 Pac. 734; In re Smith, 108 ling v. McAllister, 135 Minn. 357, Cal. 115, 121, 40 Pac. 1037 (no elec- L. E. A. 1917C, 504, 160 N". W. 1016; tion manifested). A widow, by be- Martin v. Battey, 87 Kan. 582, Ami. coming executrix of her husband's Cas. 1914A, 440, 125 Pac. 88, and will, is not thereby estopped to cases cited. afterwards make an election : Estate Right to Elect is Personal. — Soa of Gwin, 77 Cal. 313, 19 Pac. 527; ajite, note to § 513. Pratt V. Douglas, 38 N. J. Eq. 516, 981 CONCERNING ELECTION. § 517 to elect is entitled only to a life estate in tlie property, or to any other prior interest, his election does not bind the one entitled in remainder to the same property.^ And where several individuals constituting a class — as the next of kin — • are entitled to elect, each has a separate right of election; an election by any of them does not affect the rights of others. 3 § 517. The other parties interested as donees under the instrument creating the necessity for an election are af- fected by it, when made, in the following manner: If the person on whom the duty of electing rests elects to take in conformity with the will or other instrument of donation, he thereby relinquishes his own property, and must release or convey it to the donee upon whom the instrument had assumed to confer it.^ If he elects against the will or other instrument of donation, he thereby retains his own prop- upon the representatives, Tomkyns v. Ladbroke, 2 Ves. Sr. 593 ; Worth- ington V. Wiginton, 20 Beav. 67; Sopwith v. Maugham, 30 Beav. 235, 239; Whitley v. Whitley, 31 Beav. 173. Where the party bound to elect has not definitely elected in his lifetime, his representatives who have accepted benefits under the instrument of donation, but have not them- selves explicitly elected, may, if they can offer compensation, and can place the other party in the same situation as if such benefits had not been accepted, renounce those benefits, and determine the question of elec- tion for themselves: Dillon v. Parker, 1 Swanst. 385; Moore v. Butler, 2 Schoales & L. 268; Tysson v. Benyon, 2 Brown Ch. 5. §516, 2 Ward v. Baugh, 4 Ves. 623; Long v. Long, 5 Ves. 445; and see Hutchinson v. Skelton, 2 Macq. 492, 495. § 516, 3 Fytche v. Fytche, L. R. 7 Eq. 494; Ward v. Baugh, 4 Ves. 623. § 517, (a) But without such re- St. 543. When a beneficiary under lease or conveyance the donee ob- a will is put to an election between tains only an equitable interest in the gift and a claim against the the property of the person who has estate, his acceptance of the gift is made the election; an interest which a satisfaction of the claim, and it is may be defeated by a conveyance immaterial whether what he takes of the legal estate to a bona fide turns out to be of greater or less purchaser. The statutory notice of value than his claim: Gaulfield v. an election to take under the will Sullivan, 85 N. Y. 153. See, also, does not operate as a conveyance. Lee v. Tower, 124 N. Y. 370, 26 See Hibbs v. Insurance Co., 40 Ohio N. E. 913. § 517 EQUITY JUEISPEUDENCE. 982 erty, and must compensate the disappointed donee out of the estate given to himself by the donor. A court of equity will then sequester the benefits intended for the electing beneficiary, in order to secure compensation to those per- sons whom his election disappoints. ^ ^ This rule is applied in many of the American cases cited below to elections § 517, 1 See this rule discussed ante, in §§ 467, 468; Gretton v. Haward, 1 Swanst. 409, 423, 433, and note by Mr. Swanston; Rogers v. Jones, 3 Ch. Div. 688, 689; Pickersgill v. Rodger, 5 Ch. Div. 163, 173; Howells V. Jenkins, 1 De Gex, J. & S. 617, 619; Spread v. Morgan, 11 H. L. Cas. 588; Streatfield v. Streatfield, Cas. t. Talb, 176; Bor v. Bor, 3 Brown Pari. C, Tomlins's ed., 167; Ardesoife v. Bennett, 2 Dick. 465; Lewis v. King, 2 Brown Ch. 600 ; Freke v. Barrington, 3 Brown Ch. 284 ; Whistler V. Webster, 2 Ves. 372; Ward v. Baugh, 4 Ves. 627; Lady Caven v. Pul- teney, 2 Ves. 560; Blake v. Bunbury, 1 Ves. 523; Welby v. Welby, 2 Ves. & B. 190, 191 ; Dashwood v. Peyton, 18 Ves. 49 ; Tibbitts v. Tibbitts, Jacob, 317; Lord Rancliffe v. Parkyns, 6 Dow, 179; Ker v. Wauehope, 1 Bligh, 25; Padbury v. Clark, 2 Macn. & G. 298; Greenwood v. Penny, 12 Beav. 403; Codrington v. Lindsay, L. R. 8 Ch. 578; Griggs v. Gibson, L. R. 1 Eq. 685; Palmer v. Wakefield, 3 Beav. 227; Giddings v. Giddings, 3 Russ. 241; Cauffman v. Cauffman, 17 Serg. & R. 16, 24, 25; Philadel- phia V. Davis, 1 Whart. 490, 502; Stump v. Findlay, 2 Rawle, 168, 174, 19 Am. Dec. 632; Lewis v. Lewis, 13 Pa. St. 79, 82, 53 Am. Dec. 443; Van Dyke's Appeal, 60 Pa. St. 490; Sandoe's Appeal, 65 Pa. St. 314; Key V. Griffen, 1 Rich. Eq. 67; Marriott v. Sam Badger, 5 Md. 306; Maskell v. Goodall, 2 Disn. 282; Roe v. Roe, 21 N. J. Eq. 253; Estate of Delaney, 49 Cal. 77; Tiernan v. Roland, 15 Pa. St. 430, 451; Wilbanks V. Wilbanks, 18 111. 17; Jennings v. Jennings, 21 Ohio St. 56; Allen v. Hannum, 15 Kan. 625. §517, (b) The text is quoted in Cloud, 84 Ohio St. 272, 35 L. R. A. Wakefield v. Wakefield, 256 111. 296, (N. S.) 851, 95 N. E. 774 (loss by the Ann. Cas. 1913E, 414, 100 N. E. election should fall on residuary es- 275. The text is cited to this effect tate rather than on specific devises) ; in Brown v. Brown, 42 Minn. 270, Turner's Adm'r v. Citizens' Bank, 44 N. W. 250; Pace v. Pace, 271 111 Va. 184, 68 S. E. 407; Fennell 111. 114, 110 N. E. 878; Cotton v. v. Fennell, 80 Kan. 730, 18 Ann. Fletcher, 77 N. H. 216, Ann. Cas. Cas. 471, 106 Pac. 1038 (if rest of 1915A, 12'25, 90 Atl. 510; Holdren v. -will cannot be enforced according Holdren, 78 Ohio St. 276, 18 L. E. A. to the intent of it, estate will be (N. S.) 272, 85 N. E. 537. See, also, distributed as intestate); Pittman Dunshee v. Dunshee, 263 lU. 188, 104 v. Pittman, 81 Kan. 643, 27 L. R. A. N. E. 1101; Bebout v. Quick, 81 Ohio (N. S.) 602, and note, 107 Pac. 235 St. 196, 90 N. E. 162; Dunlap v. Mc- (as between other persons, the will 983 CONCERNING ELECTION. § 518 made by widows in favor of their dower and against the testamentary provisions, whereby the interests of other devisees were disturbed. Such disappointed devisees are held entitled to compensation out of the benefits intended to be conferred by the will on the widow, but which she had rejected.*^ § 518. Equitable Jurisdiction in Matters of Election. — In England, where the original general jurisdiction over the administration of decedents' estates is still preserved, the question of election under the provisions of a will usually arises as an incident of the administration, and thus comes within the cognizance of the court as a part of or a step in the administration. In the American states, the power to entertain a suit for the purpose of compelling an election may, perhaps, be sustained as one of those special matters connected with administrations which have not been sur- rendered to the statutory courts of probate, and which are still retained by courts of equity. AVhether this be so or not, it is well settled that, wholly independent of the gen- eral power over administrations, an equitable jurisdiction exists to entertain a suit on behalf of the other parties interested as beneficiaries against the donee upon whom the duty of electing is imposed by the instrument of donation, for the purpose of compelling him to make an election. The jurisdiction to entertain such a suit embraces the power to determine whether the necessity for an election exists, and after the election is actually made, to ascertain, adjust, and secure the rights of all the parties interested which will be enforced as nearly in accord- the estate renounced for the contin- ance with the intention of the testa- gent remaindermen during her life), tor as it can be) ; Colvert v. Wood, Acceleration of Remainders by 93 Tenn. 454, 25 S. W. 963 (com- widow's election against a will giv- pensation to disappointed legatees). ing her a life estate: See Holdren v. §517, (e) The text is quoted in Holdren, 78 Ohio St. 276, 18 L. R. A. Wakefield v. Wakefield, 256 111. 296, (N. S.) 272, and monographic note, Ann. Cas, 1913E, 414, 100 N. K 275 85 N. E. 537; In re Disston's Estate (will gave life estate to widow, with (Pa.), 101 Atl. 804; Jones v. Knap- contingent remainders on her death; pen, 63 Vt. 391, 14 L. R. A. 293, 22 court appointed a trustee to hold Atl. 630. § 519 EQUITY JUEISPRUDENCE. 984 are affected by it, by means of compensation or otherwise. This special jurisdiction has sometimes been referred to that existing over trusts, because, when the election is made by the defendant, a trust in favor of the plaintiff is im- pressed upon the property rejected.^ § 519. Conversely, the rule has been stated in the most general manner, that the jurisdiction always exists, and will be exercised, to entertain a suit on behalf of the person bound to elect, for the purpose of having the necessary accounts taken, so that he may be informed of the real value and condition of the property and enabled to exercise his right of election in a proper manner. The latest English decision on this subject, however, while conceding that such a jurisdiction will be exercised under all ordinary circum- stances, holds that in certain special cases the suit would not be maintained.! In several of the American states, § 518, 1 Many of the cases heretofore cited in this section were suits of such a nature brought to enforce an election. See Douglas v. Douglas, L. R. 12 Eq. 617, 637; Dillon v. Parker, 1 Swanst. 381, note by Mr. Swanston; Van Dyke's Appeal, 60 Pa. St. 481, 489, per Sharswood, J. § 519, 1 Dillon v. Parker, 1 Swanst. 381, note by Mr. Swanston ; But- ricke v. Broadhurst, 3 Brown Ch. 88; 1 Ves. 171, 172, per Lord Thurlow; Pusey V. Desbouverie, 3 P. Wms. 315; Douglas v. Douglas, L. R. 12 Eq. 617, 637, per Wickens, V. C. In this last case, the court said (p. 637) : "It is perhaps too broadly stated by Lord Thurlow, in Butricke v. Broad- hurst, 3 Brown Ch. 88, whose dictum has been adopted by Mr. Swanston in his note to Dillon v. Parker, 1 Swanst. 381, that the court of chancei-y will in all eases entertain a suit by a person put to an election to ascer- tain the value of the objects between which election is to be made. No doubt there is, in almost all cases, jurisdiction in equity to compel a final election, so as to quiet the title of those interested in the objects of which one is to be chosen ; and the court, as a condition of compelling such a final election, secures to the person compelled to make it all the informa- tion necessai-y to guide him in doing so. It is also generally, though per- haps not universally, true that a person for whose benefit conditions will be imposed by the court before it makes an order against him can entitle himself to the benefit of the conditions by filing a bill and offering by it to submit to the order." So far as these remarks tend to restrict the jurisdiction, they are confessedly a mere dictum, not at all necessai-y to the actual decision made in the case. 985 CONCERNING ELECTION. § 519 where the general doctrines of equity concerning the elec- tion by widows between their dower and a testamentary provision have been greatly modified by statute, and defi- nite statutory rules have been substituted in their stead, as shown in a previous paragraph, the courts of pro1)ate have jurisdiction to determine all such matters of election, and to decide upon the rights of widows and other parties inter- ested, in the ordinary proceedings for administering, set- tling, and distributing the estate, or in the proceedings for assigning the widow's dower. This purely statutory juris- diction does not, however, seem to embrace other and more general cases calling for an election. tJNIVERSrA'Y OF CALIFORNIA LOS ANGELfiS }]C SOUTHERN REGIONAL LIBRARY FACILITY AA 000 850 938 liliiiiiiiiil! iiiiiiiilli ililil iill jilli mm iiiiiiii'iiii'iit ^m ^iSiiiiiiiil 'ill iiilliii, -iiiiiiiiiil ^l» mm mmm '?":;■'•>':>'• ili||| HHUfHUUiuiUuUUiiy^TlllH^nuUiHHIIIUIiHHUUrH^imiiittmiiiHmiiH*