A PRACTICAL TREATISE ON THE LAW RELATING TO THE SPECIFIC PERFORMANCE CONTRACTS BY THOMAS AV. WATERMAN, COUNSELLOR- AT-LA\V. XEW yOEK: BAKER, VOORHIS & CO., PUBLISHERS, 63 NASSAU STREET. 1881. COPYRIGHT, 1881, BY THOMAS W. WATERMAN. W 3( 3^ c PFvEFACE A LONG while ago the pubhshers of these pages entered into an engagement with a prominent member of the bar to write a treatise on the Specific Performance of Con- tracts, but his subsequent call to a different field of labor compelled him to relinquish the undertaking, and the au- thor then, by request, took it up. At that time this im- portant subject had not been separately treated by any American writer ; and, though it occupied a place in books on the general system of Equity Jurisprudence, yet, to obtain detailed information in relation to it, resort was necessarily had to English works, wiiich, of course, did not always present the law relating to the specific enforcement of contracts precisely as it is administered by the courts of this country. The reports of every State in the Union bear abundant testimony to the practical nature and fre- quent recurrence between litigants of the topics herein dis- cussed ; and it is the object of the present volume to give the result of our legal decisions in connection with those of Great Britain in establishing rules governing such suits. In the treatment of the subject the prominent endeavor has been to present practical considerations, rather than such as are merely theoretical or speculative, and to avoid com- plexity ; the further aim being at precision and clearness of language, and simplicity and convenience of arrangement. A general statement of a principle is followed by exam- ples in the form of a concise and brief outline of legal de- cisions sustaining the proposition, wdiich experience has shown is more satisfactory than the authoritative enuncia- tion of the author simply sustained by citations, especially to lawyers wdio do not at all times have access to extensive libra- ries. With some modifications the arrangement is similar to 776922 ii PREFACE. that of Mr. l^y's admimblc work on Specific Performance, which is simple and practical — that is, the treatise is di- vided into four books, as follows: ist, Of the ytirisdic- tion ; 2d, The Mode of Exercising the Jicrisdiction ; 3d, Defences; 4th, Matters Incident to the Jurisdiction. Book I. embraces the definition and nature of the subject, and a general enumeration of the contracts which are capa- ble of being specifically enforced ; Book II., the parties to the suit, pleadings, injunction, and writ of ne exeat ; Book III., the several grounds on which a decree may be success- fully resisted ; Book IV., compensation and damages. A great variety of questions, many of them deeply interesting, are treated in the text, and it is believed that they involve all of the general principles appertaining to this particular branch of the law. The citations from both the English and American reports, from the earliest period to a date near the time of publication, are numerous, and designed to embrace all the decisions required for the most ami)le illustration. The notes, which have been prepared with care, and which it is hoped will be found serviceable, give explanations and facts in detail which could not with pro- priety be introduced in the text. Extracts from judicial opinions are seldom given in the text, and never at any great length ; but such as were tjiought to be important will be found in the notes. To facilitate reference, be- sides the sub-divisions placed at the commencement of the chapters, each section has a special heading, and there is a full index. The author has given to the work a great deal of time and study, and he trusts that it may be found of practical utility. BiNGHAMTON, N. Y., April ^o, 1881. CONTENTS. BOOK I OF THE JURISDICTION, CHAPTER I. PAGE DEFINITION AND NATURE, i CHAPTER II. CONTRACTS WHICH MAY OR MAY NOT BE SUB- JECTS OF THE JURISDICTION, .... 9 BOOK II. JURISDICTION, HOW EXERCISED. CHAPTER I. WFIO MAY SUE OR BE SUED 73 PAGE CHAPTER II. PLEADINGS, CHAPTER III INJUNCTION, CHAPTER IV WRIT OF NE EXEAT, . 116 ^33 154 IV CONTENTS. IJOOK III. DEFENCES. CHAPTER I . PACK INCAPACITY OF PARTY, 158 CHAPTER II. NON-CONX'LUSION OF CONTRACT,. . . . .170 CHAPTER III. y INCOMPLETENESS, UNCERTAINTY, AND UNFAIR- NESS OF CONTRACT, ...... 184 CHAPTER IV. HARDSHIP OF CONTRACT, 223 CHAPTER V. y' INADEQUACY, ABSENCE, OR FAILURE OF CON- SIDERATION, .237 CHAPTER VI. v/CONTR.ACT NOT MUTUAL, 260 CHAPTER VII. ILLECALITY OF CONTRACT, 275 CHAPTER VIII. CONTRACT ULTRA VIRES, 291 CHAPTER IX. STATUTE OF FRAUDS, 304 CHAPTER X. MISREPRESENTATION, FRAUD, OR MISTAKE. . • 400 CONTENTS. V CHAPTER XI. / PACE INABILITY OF COURT TO ENFORCE PART OF CONTRACT, 522 CHAPTER XII. DEFECT IN SUBJECT OF CONTRACT, . . . .533 CHAPTER XIII. ABSENCE OR INSUFFICIENCY OF TITLE, . . .541 CHAPTER XIV. •^NON-PERFORMANCE OF PLAINTIFF, . . . .575 CHAPTER XV. i/ACTS OF PLAINTIFF DISENTITLING HIM TO PER- FORMANCE, 619 CHAPTER XVI. LAPSE OF TIME, . 626 CHAPTER XVII. DETERMINATION OF CONTRACT, . . . . • 680 BOOK IV. MATTERS INCIDENT TO THE JURISDICTION. CHAPTER I. COMPENSATION AND DAMAGES, . . .699 CASES CITED. [The Fig^ures Refer to the Pages.] Abbey v. Dewey, 439. Abbott V. Draper, 369. V. Dunivin, 123. V. L'Hommedieu, 7, 629. V. Shepard, 179. Abeel v. Radcliff, 314. Abell V. Calderwood, 353. V. Williams, 681. Abinger (Lord) v. Askton, 37, 69. Acker v. Phoenix, 248. Ackerman v. Ackerman, 390, 750, Adams v. Blackwell R.R. Co., 61. V. Brooke, 188. V. P'ullam, 369. V. Lindsell, 179. V. M'Millan, 314, 334. V. Nicholas, 684. V. Patrick, 129. V. Robertson, 507. V. Rockwell, 379. V. Townsend, 354. V. Weare, 230. V. Whitcomb, 154. V. Winne, 472. Adamson v. Evitt, 402. Aday v. Echols, 199, 360, 734, 748. Adderley v. Dixon, 18, 26. Addington v. McDonnell, 229, 663. Affleck 2/. Affleck, 520. Agar V. Macklew, 58, 192. Agard v. Valencia, 79, 199. Ahearne v. Hogan, 452. Ahl V. Johnson, 672. Aiken v. Bruen, 462. Aikin v. Lloyd, 66. Ainslie v. Medlicott, 420. Aitkin v. Young, 373. Akhurst v. Jackson, 259. Albea v. Griffin, 353, 384. Albert ■z^. Winn, 130. Albrecht v. Sussmaim, 284. Aldborough (Earl of) v. Trye, 236. Aldrich v. Putney, 688. Aldridge v. Dana, 455. Alexander v. Ghiselin, 81. V. Godwin, 627. V. Hoffinan, 660. V. Mills, 551. V. Newton, 492, 499, V. Tams, 349. Alger V. Thatcher, 281. Allegany City v. McClurkan, 301. Allen v. Atkinson, 560, 561, 604, 663. V. Beal, 12. V. Bennet, 309, 323. V. Booker, 354. V. Burke, 504. V. Cerro Gordo, 266. V. Chambers, 122, 352, 367. V. Hilton, 661. V. Hopson, 442. V. Simons, 460. V. Watson, 60. V. Webb, 199, 363, 694. Allen's Estate, 370, 378. Allerton v. Johnson, 365. Allison V. Monkwearmouth, 44. Allison V. Shilling, 97, 721. Alsopp V. Patten, 366. Alvanley v. Kinnaird, 484, 488. Ambrose v. Keller, 16, 673. American Land Co. v. Grady, 733. Amsinck v. Barklay, 157. Anderson v. Bacon, 514. V. Chick, 334, 356, 374. V. Ellsworth, 444. V. Fry, 662, V. Hall, 431. V. Harold, 325. V. Higgins, 573. V. Lewis, 48. V. Simpson, 374. V. White, 684. Andrews v. Andrews, 224, 247. V. Bell, 257, 663. V. Brown, 731. V. Essex Ins. Co., 484, 507, V. Scotton, 256. Vlll CASES CITED. [The figures refer to the pages.] Andrews v. Sullivan, 644. Annan v. Merritt, 381, 452. Ann Berta Lodge v. Leverton, 383. Annesley t'. Muygridge, 137. Anon, 156, 164, 720. Anon V. Walford, 79, 83, 191. Anshutz's Appeal, 89. Anson v. Tovvgood, 255. Anthony z'. Leftwitcli, 7, 121, 217, 376, 455- Archbold v. Cominisioners of Charita- ble Bequests, 443. Archer v. Hudson, 429. Archer %>. McCray, 447. Argenbright v. Campbell, 399. Arglasse v. Muschamp, 65. ArgTjello V. Edinger, 350. Armistead v. Ward. 145. Armstrong v. Courtney, 148. V. Gilchrist, 5. V. Kaltenhorn, 376. V. Pierson, 644, 645, 649. V. Toler, 279, 288. V. Wyandotte Bridge Co., 595- Arnold v. Nichols, 467. Arnot V. Biscoe, 564. V. Pittston & Elmira Coal Co., 530- Arnoux v. Romans, 694. Artcher v. Zeh, 394. Arthur v. Arthur, 472. Artz V. Grove, 130, 345, 398. Arundell (Lady) v. Phipps, 22. Ash V. Daggy, 7, 350. Ashcraft v. Browntield, 205. Ashton V. Corrigan, 25. V. Wood, 694, 702. Ashurst V. Mill, 492. Askew V. Millington, 58. Aston V. Robinson, 8. Astor V. Lamoreaux, 369. Athy V. McHenry, 495. Atkinson v. Jackson, 3S8. V. Ritchie, 275. V. Smith, 529. Atlanta, etc., R.R. Co. v. Speer, 70. Atlantic Delaine Co. v. Jr.mes, 445. Atlas Bank v. Nahant Bank, 279. Attwood 2^. , 55. V. Barham, 134. V. Cobb, 321. V. Small, 422, 425, 468. Atty. Genl. v. Briggs, 147. V. Christ Church, 744. V. Corp. of Norwich, 299. V. Day, 272, 397, 536, 701, 711. V. Manchester & Leeds R.R. Co., 148. Atty. Genl. v. Mucklow, 155. V. Parnther, 160. V. Sittingbourne & Sheer- ness R.R. Co., 600. V. Sitwell, 510. V. Sothon, 453. Aubin V. Holt, 45. 276. Aubuchon v. Bender, 455. Audenreid v. Philadelphia & Reading- R.R. Co.. 141. Austin V. Ewell, 497. Auter V. Miller, 7, 130. Aveline v. Whisson, 326. Averill v. Hedge, 179, 180. V. Wilson, 560. Avery v. Griffin, 94. V. Longford, 10. Ayers v. Baumgarten, 237. V. Hewitt, 457. Ayles V. Cox, 536. Aylett V. Ashton, 92, 94, 160, 716. Ayliffe v. Tracy, 181. Aynsley v. Glover, 6. Babcock v. Case, 437. V. Eckltr, 4M. Babier v. Babier, 8, 62. Backhouse v. Crosb\, 270. V. Mohan, 685. Backus' Appeal, 3, 62. Bacon v. Bronson, 439, 442. V. Simpson, 537. Bacot V. Wetmore, 74. Baden v. Pembroke (Countess of), 85, 269. Baglehole -v. Walters, 409, 540. Bagley v. Clark, 680. V. Peddie, 29. Bagshawe v. Eastern Counties R.R. Co., 299. Bailey v. Bailey, 507 V. Collett, 745. V. James, 717. V. Ogden, 325, 329. V. Rider, 66. V. Wilson, 55, 56. Bain v. Bickett. 92. Bainl)ridge v. Kinnaird, 16. Baird v. Baird, 660. Baker v. Bradley, 289, 443. V. Carson, 353, 384. V. Cox, 430. V. Glass, 187, 192. V. Hathav.'ay, 94, 123. V. HoUobaugh. 397. V. Howell, 450. V. Lever, 468. V. Thompsoii, 255. V. White, 283. [The figures refer to the pages.] CASES CITED. IX Baldey v. Parker, 527. Baldwin v. Lowe, 89. V. Munn, 743. V. Salter, 577. V. Society for Diffusing Use- ful Knowledge, 40, 143. V. Vanvorst, 635. V. Williams, 367. Ball V. Cogs, 39. V. Storie, 487. Ballard v. Schutt, 745. V. Walker, 641. V, Ward, 249, 373. V. Way, 538. Ballingall v. Bradley, 318. Ballinger v. Edwards, 286, 453. Bamford v. Creasy, 134. Bank of Augusta v. Earle, 293. Bank of British North America (matter oQ, 113- Bank of Columbia v. Hagner, 609. V. Patterson, 331. Bank of Michigan v. Niles, 296. Bank of South Carolina v. Hammond, 275. Bank of U. S. v. Dandridge, 292. V. Daniel, 471. V. Kiting, 289. Banks v. Poitiaux, 296. Barb v. Cole, 723. Bargent v. Thompson, 134. Barickman v. Kuykendall, 316, 370. Barker %>. Cox, 721. V. Hill, 85. V. Hodgson, 275. Barkley v. Barkley, 26. Barksdale v. Payne, 8, 410. Barkworth v. Young, 105, 122, 128, 168, 308, 397. Barlow v. Scott, 732. Barnard v. Flinn, 345. V. Lee, 627, 631, 652, 657, 672. V. Macy, 87. V. Young, 286. Barnes v. Barnes, 12. V. Brown, 367, 454. V. Pennell, 425. V. Teague, 353, 399. V. Wood, 89, 570, 701, 712, 721. Barnet v. Dougherty, 349. Barnett v. Higgins, 563. V. Stanton, 436. Barney v. Patterson, 335. Barnwell v. Harris, 556. Barr v. Gibson, 255. V. Hatch, 520. V. Lapsley, 20. Barrett 7/. Blagrave, 137, 146. V. Mendenhall, 163, 734. V. Ring, 218. Barrett v. Spratt, 224. Barrington v. Horn, 164. Barron v. Alexander, 436. V. Barron, 5 \, 54. V. Frink. 607. Barrow z/. Barrow, 492. V. Bispham, 553. V. Richards, 146, 599. Barry v. Barrymore (Lord), 331. V. Coomlie, 201, 323, 326, 399. V. Croskey, 425. V. Law, 325. Barstow v. Gray, 323. V. Kilvington, 507, Bartholomew v. Leach, 329. Bartle v. Coleman, 281. Bartlett v. Blanton, 545. V. Judd, 512. V. Pickersgiil, 349. V. Purn(dl, 335. V. Salmon, 418, 419, 420. V. Vinor, 285. V. Wheeler, 395. Barton v. Vanhuythuysen, 458. Barwick v. English joint Stock Bank, 418. Bascomb v. Beck vjth, 408. Basevi v. Serra, 589. Bashore v. Whisler, 256. Baskett v. Cafe, 130. Bass V. Gilliland, 124, 674, 712. Bassler 7^ NiesU, 369. Bast V. Alford, 123. Bateman v. Boynton, 518. V. Murray, 47. Bates V. Delavan, 54?, 574. V. Moore, 395. V. V\ heeler, i 23. Bathurst (Lord) v. Burden, 142. Battle V. Rochester City Bank, 686. Baumann %. James, 313. Bautz V. Kuworth, 530. Baxendale v. Scale, 221, 222, 488. Baxter z/. Burtield, 115. V. Connoly, 43. %>. Lewis, 613. Bay 7>. Baskin, 380. Bayley v. Coip. of Leominster, 46. V. Merrel, 436. Baylor v. Com., 48, 249. Bayly v. Tyrrell, 102. Baynham v. Guy's Hospital, 46, 47, 627. Beach v. Dyer, 7, 656. Beal V. Warren, 462. Beales v. Rokeby (Lord), 90. Beaman v. Buck, 353. Bean v. Valle, 373. Beard v. Bingham, 286. V. Dennis, 44. V. Linthicum, 260, 363. CASES CITED. [The figures refer to the pages.] Bearden v. Wood, 576, 600. Beardmer v. London & Northwestern R.R. Co., 580. Beardsley 7/. Duntley, 370, 411. V. Knight, 475, 510. Beardsley Scythe Co. v, Foster, 74. Beasley v. Maggrath, 454. Beatson v. Nicholson, 130, 131, 180, 593- Beatty v. Kurtz, 84. Beaufort (Duke oO v. Glynn, 6, 137. V. Neeld, 481. Beaumont v. Dukes, 407, 579. V. Reeve, 285. Beck V. Allison, 37. Beckley v. Newland, 49. Beckwith v. Cheever, 180. V. Kouns, 545. Bedford (Duke ot) v. Trustees of Brit- ish Museum, 233. Beebe v. Dowd, 380, 600. •u. Young, 417. Beecher v. Beecher, 31. V. Conradt, 613. Beed v. Bland ford, 695. Beert/. London & Paris Hotel Co., 190, Beers v. Botsford, 444. Beeston v. Stutely, 163, 274. Beioley z^. Carter, 546, 552. Belcher 7/. Belcher, 441. -u. Vardon, 286. Belden v. Carter, 51. Bell V. Holtby, 546. V. Howard, 210, 267, 685. v. Steele, 471. V. Thompson, 123, 167, 609, 707. 7/. Warren, 188, 586. Bellamy v. Liversidge, 86. V. Ragsdaie, 615, 674. "d. Sabine, 455. Bellas V. Hays, 602, 660. V. M'Carthy, 256. Bellew V. Russell, 469. Bellinger v. Kitts, 651. Belloat V. Morse, 118. Bellows V. Stone, 470, 510. Bellringer v. Blagrave, 218, 568. Bell's Appeal, 648. Belmanno v. Lumley, 716. Belworth v. Hassell, 711. Beman v. Rufford, 102, 299. Benbow v. Townsend, 339. Benedict v. Benedict, 386. V. Lynch, 260, 267, 635, 656. Benfield v. Solomons, 286. Bennett v. Abrams, 26, 380. V. Clough, 276. V. Fowler, 272, 572. V. Judson, 417. V. Smith, 6. Bennett v. Vade, 160. V. Welch, 663, 676. Benson v. Lamb, 640. V. Tilton, 670. Bentley v. Craven, 549. V. Whittemore, 471, 474. Benton v. Shreeve, 245. Berkley v. Hardy, 74. Bermingham v. Sheridan, 25. Bernard v. Meara, 148. Berry v. Cox, 92. V. Van Winkle, 39. V. Whitney, 425, 449, 507. v. Young, 627. Best V. Stone, 491, 700. Bethel v. Hawkins, 174. Bettesworth v. Dean and Chapter of St. Paul, II, 166, 276. Bettle V. Wilson, 54. Betts V. Gunn, 484. Beyer v. Marks, 706. Bidden v. Leader, 285. Biddle v. Ramsey, 59. Bidwell V. Astor Mu. Ins. Co., 519. Bigg V. Strong, 332. Bill V. Holtby, 552. Billing V. Southee, 289, 443. Billingslea v. Ward, 357, 398. Billington v. Welsh, 369. Bingham v. Bingham, 483. Bmks V. Rokeby (Lord), 708, 746. Binnington v. Wallis, 285. Binns v. Mount, 606. Birce v. Bletchley, 399. Birch V. Joy, 744. V. Smith, 41. Birchard v. Cheever, 66. Birchett v. Boiling, 35. Bird V. Aitken, 459. V, Boulter, 334. V, Hall, 104. V. Higginson, 386. Birdsall v. VValdron, 541, 608. Bishop V. Busse, 682. V. Newton, 562. Bissell V. Farmer's, etc.. Bank, 74. •z/. Heyward, 600. V. Mich. Southern and North- ern Ind. R.R. Co., 296, 300, 302. V. Terry, 331. Blachford v. Kirkpatrick, 374. Black V. Black, 366. V. Cord, 247. Blackburn v. Gregson, 27. Blackett v. Bates, 61, 71, 264. Blackie v. Clark, 518. Blacklow V. Laws, 559. Blackmore v. Shelby, 289. Blackner v. Phillips, 604. [The figures refer to the pages. J CASES CITED. XI Blackney v. Ferguson, 381. Blackwilder v. Loveless, 6, 212. Blagden v. Bradbear, 130, 195, 314, .399- Blain v. Agar, 406. Blair v. Bromley, 419, 443, 467. V. Rankin, 544. V. Smith, 379. Blaisdell v. Cowell, 443. Blake v. Cole, 394. Blakeslee v. Blakeslee, 378. Blanchard v. Detroit, etc., R.R., 70, 200, 314. V. Hilliard, 640. V. McDougal, 363, 366. V. Moore, 503. V. Noyes, 55. V. Williamson, 628, Blanks v. Walker, 563. Blanton v. Knox, 395. Blaydes v. Calvert, 1 56. Bleakley?/. Smith, 188, 325. Bleecker v. Franklin, 323. Blennerhasset v. Day, 467, 468. Blew V. McClelland, 746. Blight V. Banks, 5. Blodgett V. Hiidreth, 342, 366. V. Hobart, 501. Blore V. Sutton, 195, 330, 357. Blosse V. Clammorris (Lord), 550. Blount V. Blount, 744. V. Winter, 55. Bluck V. Gombertz, 327. Blundell v, Brettargh, 58, 62, 192, 193. Blunt V. Tomlin, 382. Boardman v. Ford, 320. V. Mostyn, 134, 624. V. Spooner, 326, 335. Bodine v. Glading, 260. Boehm v. Wood, 117, 156, 632. Began V. Camp, 87, 1 20. V, Daughdrill, 7, 536. Boisblanc v. Markey, 574. Bold V. Hutchinson, 181. Bolingbroke's Case, 272. Bomier z^. Caldwell, 375, 382. Bond V. Kent, 27. V. Hopkins, 350. Bonebright z*. Pease, 12. Bonesteel v. Bonesteel, 156. Boney v. Holingsworth, 289. Bonner v. Montgomer)-, 453. Bonnet v. Sadler, 100, Bonnewell v. Jenkins, 174. Booders v. Murphy, 107. Boone v. Chiles, 74. V. Missouri Iron Co., 576. Booten v. Scheffer, 238, 257, 647. Booth V. Booth, 116. V. Hartley, 457. Booth V. Pollard, 40. Boreing v. Singery, 442. Borell V. Dann, 236, 240, 245, 450. Bosanquet v. Dashvvood, 453. Bostock V. North Staffordshire R.R. Co., 297. Boston & Maine R.R. v. Bartlett, 172, 268, 654, Boston Water- Power Co. v. Gray, 521. Bostwick V. Williams, 353. Boswell V. Mendham, 545. Botsford V. Beers, 117, 459. V. Burr, 339, 349, 519. V. Wilson, 573. Boucher v. Van Buskirk, 260. Bouck V. Wilber, 61. Boults V. Mitchell, 695. Bourland v. Peoria (County ot), 310. Boutwell V. Foster, 275. V. O'Keefe, 378. Bowen v. Bowen, 52. V. Evans, 443. V. Irish, 7. V. Jackson, 609. V. Kirwan, 452. V. Waters, 199. Bower?/. Blessing, 172. V. Cooper, 196, 245. Bowers v. Cator, 129. Bowie V. Stonestreet, 734. Bowles V. Woodson, 656. Bowman v. Bates, 411. V. Bittenbender, 515. V. Cunningham, 199, 209, 279. V. Hyland, 551. V. Irons, 411. Bowne v. Potter, 560. V. Ritter, 117. Bowser T/. Cravener, 519. Bowyer v. Bright, 554, 627, 702. ; Box V. Stanford, 338, 353. Boyce v. Francis, 82. V. McGulloch, 519. V. Prichett, 657, 744. V. Watson, 425. Boyd V. Graves, 379. V. Schlessinger, 197, 617, 656. V. Stone, 354. Boydell v. Drummond, 312, 394. Boyle V. Laird, 126. V. Rowand, 740. Boynton v. Hazelboom, 404. V. Hubbard, 284. Boys T/. Ayerst, 178, 179. Boyse v. Rossborough, 86. Bozon V. Farlow, 43, 45. Brace v. Harrington, 95. V, Wehnert, 34. Bracken v. Hambrick, 204. V. Martin, 663. _ ^.; Xll CASES CITED. [The figures refer to the pages.] Bradbury ?'. White, 475, 483. Bradford v. Union I3'k of Tennessee, 128, 484. 514. Bradley v. Ballard, 302. V. Morgan, 48. Brady v. Parker, 514. Brady's Appeal, 428, 575. Brake v. Ballow, 284. Brame v. McGee, 93. Bramley v. Alt, 463. Branch ?'. Tomlinson, 283. Brandling v. Plummer, 415. Brandon v. Nesbitt, 284. Brasher 7A Cortlandt, 117. V. Gratz, 219, 573, 597, 654. Brassel %>. McLemore, 672. Braswell v. Pope, 576. Brawdy v. Brawdy, 376. Brealey v. Collins, 421. Breckenridge v. Clinkerbeard, 586. V. Hoke, 740. Breithaupt 7'. Thurmond, 197. Brennan v. Bolton, 360. Brewer v. Brewer, 355. 11. Church, 263. V. Connecticut, 663. V. Herbert, 257. V. Marshall, 599. V. Thorp, 601. V. Wall, 721. V. Wilson, 360, 362. Brian v. Williamson, 275. Bridger v. Rice, 217. Bridges v. Hitchcock, 47. V. Purcell, 386. V. Robinson, 431. Brien 7/. Svvainson, 177. Briggs, ex parte, 436. V. Wisking, 378. Bright V. Boyd, 520, 749. V. Bright, 388. V. Eynon, 442. V. North, 299. Brillinger v. Kitts, 600. Brinckerhoff 7/. Phelps, 723. Brink v. Morton, 678. V. Steadman, 660. Brinker v. Brinker, 52. Brinkerhoff 7^. Olp, 604. Brinkley v. Hance, 212, 454. Brisban v. Boyd, 179. Brisbane v. Adams, 463. Bristow V. Whitmore, 419. V. Wood, 550. Broaddus v. Ward, 663, 664. Broadwater 7A Darne, 216. Broad well v. Broad well, 27, 403, 514, Brock V. Cook, 382. V. Hidy, 61 1, 651. V. McNaughtrcy, 443. Brockwell's Case, 419. Broddwell 7a Getman, 395. Broderick v. Broderick, 402. Brodie v. St. Paul, 355. Bromier v. Caldwell, 645. Bromley v. Jefferies, 190, 264. V. Smith, 441. Bronson v. Cahill, 262. Brooke v. Champernowne, 741. 7/. Gurod, 661. 7/. Hewitt, 103, 590. V. Mostyn (Lordj, 476. Brooke (Lord) 7). Roundthwaite, 421, 716. Brookes v. Whitworth (Lord), 83. Brooklyn, etc., R.R. Co., Matter of, 296. Brooks V. Hamilton, 420. V. Riding, 718. V. Stoley, 5. V. Wheelock, 347, 352. Broome v. Monck, 88. Brothers v. Porter 339. Broughton v. Broughton, 51. V. Coffer, 363, 446. V. Hutt, 477. V. Manchester Water Wks., 296. Brown v. Armistead, 471. ■V. Bellows, 197, 316, 560, 614. V. Bonner, 457, 492. V. Bucks, 462. V. Cannon, 534. V. Covilland, 553, 629. V. Eaton, 131, 617. V. Finney, 362. V. Gammon, 553. V. Haff, 156, 565, 566. V. Haines, 576. V. Hart, 609. V. Hayes, 123. V. Jones, 383. V. Lampton, 495. V. Montgomery, 409. V. N. Y. Central R.R. Co., 170. V. Parish, 719. V. Raindle, 87. v. Rounsavell, 281. V. Tighe, 46, 47. V. Winnismet Co., 297. V. Woodworth, 386. Browne 7/. Browne, 51. V. Cross, 468. V. London Necropolis Co., 98. V. Warner, 162. Browning v. Morris, 279, Brown's Appeal, 139. Brua's Appeal, 453. Bruce v. Tilson, 599, 610. Bruck V. Tucker, 14. Brueggeman v. Jurgensen, 542. i[The figures refer to the pages.] CASES CITED. Xlll Brumfield v. Palmer, 642. Bruner tA Wheaton, 173, 174. Bryan v. Jamison, 307. V. Read, 576, 617, 704. V. Whistler, 386. V. Wooley, 163. Bryant v. Boone, 180. V. Booze, 103. V. Busk, 591. V. Lofftus, 566. Bryson v. Peak, 18. V. Whitehead, 44, 281. Bubier ^'. Bubier, 352. Buchanan v. Alvvell, 560. V. Buchanan, 55. V. Lorman, 576. V. Moore, 418. V. U pshaw, 74. Buck V. Buck, 86. V. Dowley, 353, 504. V. Holloway, 658. V. McCaughtry, 436. V. Pike, 349. V. Sherman, 443. V. Smith, 68. V. Swazey, 25, 339. Buckhouse v. Crosby, 323, 519, 685. Buckland v. Hall, 134. Buckle V. Mitchell, 271, 462, 557. Buckmaster v. Grundy, 614, 659, 695. V. Harrop, 88, 269, 335, 355. 356, 364. 368, 378, 383. 398, 529- V. Thompson, 199. Buckner v. Calcote, 468. Bud V. Hall, 728. Buell V. Miller, 519. Buess V. Koch, 602. Buffington v. Gerrish, 106. Buffett V. Troy & Boston R.R. Co., 296. JBuford V. Caldwell, 417. V. McKee, T], 247. Bull V. Bull, 200. V. Talcot, 282. Bullitt V. Songster, 145. Bullock V. Adams, 635, 664. V. Irving, 459. BumbergerT^. Clippinger, 549. Bumpass v. Webb, 521. Bunch V. Hurst, 241. Bunn V. Guy, 45. V. Winthrop, 51. Bunton v. Smith, 360. Burchell v. Marsh, 521. Eurge V. Cedar Rapids & Mo. R.R. Co., 695. Burger v. Potter, 86. Burgess v. Wheate, 74. Burgin v. Burgin, 249. Burke v. Creditors, 199, V. Seeley, 1 50. V. Serrill, 722. "v. Smyth, 647. Burke's Appeal, 721. Burling v. King, 248, 577. Burlingame v. Burlingame, 354. Burn V. Burn, 507. Burnell v. Brown, 538, 711. Burnes v. Pennel, 419. Burnham v. Walkup, 445. Burns v. Hamilton, 573. V. Sutherland, 369. Burrall v. Eames, 66, Burroughs u. Oakley, 198. Burrowes v. Locke, 245, 420. Burt V. Wilson, 398. Burtch V. Hogge, 240. Burton v. Blakemore, 443. V. Marshall. 142. V. Wookey, 729. Burwell v. Jackson, 553, 574. Busban v. Boyd, 180. Busey v. Hardin, 256. Bush V. Bush, 363. V. Cole, 214. Bushnell v. Bushnell, 155. Bussey 2/. Gant, 126. Butch V. Lash, 133. Butcher 7'. Stapely, 371. Butler V. Burleson, 44. V. Galetti, 151. V. Haskell, 241, 449. V. O'Hear, 545, 550. TJ. Powis, 270. Butler's Appeal, 414. Butman v. Porter, 249, 255. Butterfield v. Heath, 557. Buxton V. Hamblen, 275. V. Lister, 10, 23, 33, 199. Buys V. Eberhardt, 63. Byard v. Holmes, 415. Byers v. Aiken, 614. V. Surget, 246, 449. Byrd v. Odem, 369. Byrne v. Acton, 218. V. Romaine, 128, 363, 383. Caballero v. Henty, 711, 715. Cabe V. Dixon, 578. Cabeen v. Gordon, 209, 247, 260. Cable V. Martin, 751. Cabot V. Cabot, 323. V. Haskins, 325. Cadman v. Horner, 242, 243, 440. Cadogan v. Kennett, 458. Cadwalader v. Price, 546. Cadwalader's Appeal, 662. Calcraft v. Roebuck, 536, 707, 741. XIV CASES CITED. [The figures refer to the pages.] Caldwell v. Carring-ton, 89, 380. 7'. Dickinson, 60, 63. 7'. Harrison, 282. V. McClelland, 436. 7A Tag'gart, 81. 7/. Williams, yj, 247. Caledonian & Dumbartonshire Junction R.R. Co. V. Magistrates of Helens- burgh, 107, no. Calhoun v. Hays, 379. Calkins v. Falk, 314. Callaghan 7'. Callagan, 207, 249. Callen v. Ferguson, 654, 659. Caller 7'. Vivian, 577. Calloway v. Witherspoon, 216. Calverly 7'. Williams, 485, 490. Calvert v. Nichols, 669. Camden & Amboy R.R. Co. v. Stew- art, 204, 318, 357. Cameron %/. Abbott, 120. V. Ward, 341. Camp V. Camp, 437. Campbell v. Campbell, 349. V. Digges, 15. V. Fleming, 696, 697. V. Galbreath, 93. V. Ingilby, 76, 588, 589. V. Ketcham, 159, 217. V. London & Brighton R.R. Co., 633. V. McClenachan, 424, 447. V. Medbury, 560. V. Patterson, 83. V. Spencer, 216, 241. Campfell v. Hicks, 663. Canal Co. v. R.R. Co., 172. Candler v. Carden, 45. Candor's Appeal, 363. Canedy v. Marcy, 500. Canham v. Jones, 46. Cann v. Cann, 703, 707. Cannady v. Shepard, 224. Cannanv. Bryce, 285. Cannel v. Buckle, 1 1. Canterbury Aqueduct Co. v. Ensworth, 3. 402. Cantrell v. Mobb, 561. V. Rice, 126. Capehart v. Hall, 123. V. Moon, 481. Carbury v. Tannehill 492. Careleton v. Leighton, 51. Carew's Estate (Matter of), 465. Carey v. Smith, 18. V. Stafford, 165. Carlisle v. Brennan, 122, 373, 399. V. Fleming, 52, 360. Carmack v. Masterson, 335. Carmichael v. Vandebur, 404. Carne v. Mitchell, 162. Carolan v. Brabazon, 166, 693. Carpenter 7/. Bailey, 550. V. Brown, 614. V. Elliot, 454. V. Mather, 282. V. Mu. Safety Ins. Co., 20, 39. V. Roe, 461. Carpmael v. Powis, 482. Carr 7/. Duval, 174, 199. V. Ellison, 46. V. Passaic Land, etc., Co., 188, 206. Carrier v. Dilworth, 682. Carrodus v. Sharp, 746. Carroll v. Wilson, 731. Carrolls v. Cox, 373. Carroway v. Anderson, 380. Carson v. Lucore, 614. V. Murray, 54. V. Percy, 202. Carter v. Carter, 54, 259. V. Jordan, 66. V. Mills, 79. V. Shorter, 174, 312, 318. V. Ely (Dean oi), 634, 691. V. Home, 729. V. Thompson, 125, 609. Cartledge v. Radbourne, 444. Casady v. Scallen, 78, 604. Casamajor v. Strode, 527, 710. Case V. James, 89. V. Phelps, 461. Casey v. Allen, 443. Cashman v. Henry, 93. Casler v. Thompson, 381. Cassady v. Woodbury, 191. Cass %>. Ruddle, 746. Casswell v. West, 512. Castle V. Wilkinson, 89, 430, 570, 714, 721. Caswell V. Gibbs, 68. Cathcart v. Robinson, 245, 467, '477, 732- Cator V. Pembroke (Earl of), 703. Catt V. Tourle, 44. Cattell V. Corrall, 196, 555, 558. Causton v. Macklew, 557. Cavall V. Allen, 512. Cave V. Cork, 87. V. Holford, 472. Cavender v. Waddingham, 159. Cavendish v. Cavendish, 549. Cazet V. Hubble, 117. Cecil 7A Plaistow, 289. Chadwell v. Winston, 629. Chadwick v. Maden, 83, 98, in, 113. V. Piatt, 98. Chaires v. Brady, 237. Chamberlain v. Blue, 28. V. McClurg, 55. [The figures refer to the pages.] CASES CITED. XV Chamberlin v. Robertson, 266. Chambers v. Chalmers, 504. V. Lecompte, 118, 372. V. Livermore, 224, 428, 450, 451. 507. 575- V. Robbins, 136. V. Tulane, 542. Chambliss v. Smith, 372. Chamness v. Crutchfield, 503. Champion v. Brown, 28, 89. V. Plummer, 189, 335. Champlin v. Champlin, 53. V. Laytin, 478, 479, 480, 482. V. Parish, 85, 90, 337, 398. Chance v. Beall, 14. Chandler v. Geraty, 754. V. Neale, T^. Chapin v. Butts, 689. Chaplin v. Scott, 248. Chapman v. Allen, 499. V. Gibson, 520. V. Lee, 550, 614. V. West, 81. V. Wilbur, 91. Chappel V. Brockway, 281. Charleston & Jeffersonville Turnpike Co. V. Willey, 295. Charlton v. Poulter, 42. Charnley v. Hansbury, 362. Charpiot v. Sigerson, 360, 375. Chartier v. Marshall, 735. Chase v. Hogan, 600. V. Lowell (City of), 330. Chattock V. MuUer, 203. Chautauque County B'k v. Risley, 295. Chavany v. Sommer, 42. Cheale v. Ken ward, 18, 24. Cherry v. Henning, 325, 395. Chesapeake & Ohio Canal Co. v. Young, 363- Cheslyn v. Dalby, 60. Chesman v. Nainby, 148, 281. Chess's Appeal, 125, 613. Chester v. Dickerson, 340. Chester Glass Co. v. Dewey, 301. Chester z/. Spargo, 416. V. Urwick, 338. Chesterfield v. Janssen, 444. Chesterman v. Mann, 47, 267. Chestnut Hill Reservoir Co. v. Chase, 405. Chetwood v. Brittan, 347. Chew V. Gillespie, 499. Chicago, etc., R.R. Co. v. Dane, 179. Chichester ■?/. Mclntyre, 62, 190. Child V. Comber, 129, 308, 398. V. Godolphin, 398. Childress v. Holland, 659. Chiles V. Nelson, 180. Chillmer v. Chilliner, 27, 31, 32. Chinnock v. Sainsbury, 40, 739. Chinock v. Marchioness of Ely, 126. Chipman v. Thompson, 595. Chippendale, ex parte, 301. Chissum v. Dewes, 43. Cholmondeley v. Clinton, 118, 660. Christian v. Cabell, 257, 553, 613, 746. V. Smith, 359. Christie v. Simpson, 335. Chubb V. Peckham, 227. Church v. Steele, 617. V. Sterling, 340. Church of the Advent v. Farrow, 204, 225, 319. Cincinnati & Chicago R.R. Co. v. Washburn, 71. City Bank of Baltimore v. Smith, 29. City Council v. Page, 19. City, etc., Ins. Co. v. Olmstead, 20. Clap V. Draper, 196. Clapham v. Shillito, 403, 432, 440. Clark V. Barnett, 688. V. Burnham, 320. V. Clark, 195, 373. V. Dales, 180. V. Douglass, 458. V. Drake, 604. •u. Everhart, 425. V. Flint, 19, 89, 106. •u. Gilbert, 114. V. Glasgow Ass. Co., 34. V. Lyons, 552, 596, 646. V. Martin, 147. V. Mayor of New York, 692. V. Partridge, 446. V. Pendleton, 394. V. Redman, 553. V. Riemsdyk, 332. V. Sears, 654. V. White, 439, 443. Clarke v. Dickson, 416. V. Elliott, 605. V. Grant, 338,475- 504, 5o5. 5o8, 585. V. Mackintosh, 433. V. Moore, 506, 517, 647, 684. V. Price, 40, 143. ■v. Reins, 536, 701, 721. V. Rochester, Lockport, and Niagara Falls R.R. Co.» 199, 231. V. Seirer, 721. v. Wright, 462. Clarkson v. De Peyster, 118. Clason V. Bailey, 267, 270, 323, 335. Clavering 7/. Clavering, 51. Clay V. Sharpe, 82. V. Turner, 576. Clayton v. Ashdown, 159. V. Carey, 12. XVI CASES CITED. [The figures refer to the pages.] Clayton ?'. Fleet, 498, 515. 7'. Frazier, 382. V. Newcastle (Duke of), 162. V. Nugent (Lord), 188. Cleary ?/. Babcock, 514. Cleaton v. Gower, 230, 272, 274, 730. Cleaveland t. Burrell, 66. Cleaves t. Foss, 334. Clegg V. Edmondson, 659, 633. Clemens ?'. Davis, 459. Clement v. Durgin, 386. 7J. Evans, 456. V. Reid, 240, 444. Clements 7>. Welles, 147. Clerk 7A Wright, 314, 393. Clermont t. Tasburgh, 403, 421, 440. Cleveland ?'. Burton, 656. Clifford V. Turrell, 18, 396, 452, 508. Clifton V. Cockburn, 56, 518. Clinan 7/. Cooke, 188, 195, 312, 313, 331, 366, 367, 374, 471, 507, 508, 510. Cliner v. Hovey, 489. Clippinger ?'. Hepbaugh, 282. Clitherall 7). Ogilvie, 8, 211, 241, 421, 428. Clive 7v. Beaumont, 119, 178. Clopton 7/. Martin, 483, 494. Clough V. Hart, 118. Clowes V. Higginson, 402. Clute 7/. Robinson, 553. Coale V. Barney, 585. Coates V. Gerlach, 727. Coburn v. Hartford (City of), 526. Cock V. Richards, 235, 283. Cocke V. Evans, 88. Cockell V. Taylor, 245. Cocker 7'. Cowper, 386. Cockerell v. Cholmeley, 471. Cocking V. Pratt, 483, 507. Cockrane v. Willis, 402. Cocks v. Izard, 464. Cocksedge v. Cocksedge, 55. Coe V. Columbus, etc., R.R. Co., 71. 71. Lindley, 127. Coftee V. Ruffin, 449. Coffin V. Cooper, 565, 566. Cofifing 7^. Taylor, 484, 515. Cogent V. Gibson, 45. Coger V. M'Gee, 503. Cogger V. Lansing, 366. Cohen v. Wilkinson, 299. Coke V. Bishop, 227. Colborn v. Gould, 680. Colby V. Gadsden, 416. Colcock V. Butler, 655. Coldwell V. Myers, 19. Cole V. Cole, 342, 728. V. Gibson, 283. V. Potts, 360, 366, 375. V. Sims, 28, 29, 33, 105. Cole V. Tyler, 461, 469. V. Tyson, 740. V. White, 373. Coleman 7'. Eastern Counties R.R. Co., 293, 299. Coleman 7>. First Nat. Bank of Elmira, 333- Coleman 7/. Upcot, 179. Colerick v. Hooper, 95. Coles 7A Bowne, 199, 337, 398, 484, 510, 517. Coles V. Pilkington, 78, 252. V. Trecothick, 240, 259, 328, 331, 332, 366. Collett V. Hever, 80. Collier v. Baptist Education Soc, 282. 7J. Brown, 245. V. Jenkins, 88, 700, 711, V. Lanier, 492, 499. V. M'Bean, 545, 551. Collins V. Blantern, 285. V. Dennison, 423. V. Evans, 420. V. Plumb, 45, 68, 139. 7/. Smith, 167, 545, 712. V. Stutely, 739. V. Tillou, 342. V. Torry, 560. V. Vanderver, 114, 610, 672. Collyer 7/. Fallon, loi. Colson V. Thompson, 199, 362, 576. Colt V. Netterville, 24. V. Woolaston, 406, 442. Colter V. Morgan, 415. Colton V. Wilson, 86, 559. Columbia Water-Powcr Co. v. Co- lumbia, 72. Columbine v. Chichester, 120, 123, i6r. Columbus, etc., R.R. Co. v. Watson, 69. Colwell V. Hamilton, 553. Colyear v. Mulgrave (Countess of), 74. Colyer v. Clay, 338. Com. V. Erie & North East. R.R. Co., 296. Com. V. Inhabs. of Cambridge, 298. Com. V. Gray, 309. Combs V. Little, 344. Commercial Bank v. Nolan, 296. Commrs. v. Jones, 282. Commrs. of Canal Fund v. Perr)', 282. Compton V. Collinson, 54. Comyns v. Boyer, 285. Conant v. Canal Co., 582. 7A Jackson, 159. Cone V. Niagara Fire Ins. Co., 519. Conger 7'. Weaver, 743. Coninger 7/. Summit, 341. Conlin 7'. Ryan, 5. Connecticut (State ol) 7/. Sheridan, 126. Connelly v. Pierce, 615. [The figures refer to the pages.] CASES CITED. XVll Conner v. Drake, 58. V. Henderson, 686. V. Lewis, 349. Connolly v. Parsons, 463. Conover v. Wardell, 472. Conrad v. Lindley, 659. -v. Williams, 283. Const V. Harris, 683. Converse v. Blumrich, 597, 642, 645. Conway v. Kinsworthy, 668. Conyers v. Ennis, 408. Cooch V. Goodman, 326. Cook V. Field, 48, 102. V. Preston, 499. V. Stearns, 386. V. Vick, 60. Cooke V. Clay worth, 159, 216, 487. V. Cooke, 90, III. V, Husbands, 499. V. Nathan, 478. V. Oxley, 172. Coolidge TJ. Brigham, 693. Coombe 2/. Meade, 12. Coombs V. Emery, 286. Cooper V. Brown, 563, 655. V. Carlisle, 362. V. Denne, 546. V. Mu. Fire Ins. Co., 493. V. Pena, 72, 260, 267, 611, 659. V. Smith, 311, 329, V. Stevens, 350. Cooth V. Jackson, 130, 193, 220, 355, 358. Cope 7/. Albinson, 172. V. Parr}', 90, in. Copeland v. Merc. Ins. Co., 329. Copis V. Middleton, 458. Coppage V. Barnett, 462. Copper Mining Co. v. Beach, 47. Copps V. Holt, 204. Corbin v. Jackson, 379. V. Tracy, 20. Corbitt V. Dawkins, 552. Corbus V, Teed, 83, 95, 599. Corder v. Morgan, 82. Cordon v. Sims, 334. Cork, etc., R.R. Co., In re., 301. Cornell v. Mulligan, 202. Cornfoote v. Fowke, 419, 540. Corning?/. Colt, 172. Corolan v. Brabazon, 532. Corp. of Hythe v. East, 740. Corprew v. Arthur, 462. Corson v. Mulvany, 131, 132, 228, 268. Cory V. Cory, 56, 216. V. Hyde, 309. V. Thames Iron Works and Ship- building Co., 739. Cosine v. Graham, 122. Coslake v. Till, 43, 633, 634. Cosser ?y. Collinge, 196, 197. Cosset V. Hobbs, 326. Coster 7^. Clarke, 541. V. Turner, 627. Costigan v. Hastier, 225. Cothreal v. Talmadge, 29. Cotterell v. Homer, 462. Cottington v. Fletcher, 398. Cotton V. Ward, 565. Coulson V. Walton, 657. Counter z/. McPherson, 258, 581, 677. Courcier v. Graham, 704. Cousins V. Wall, 341. Coult V. Craig, 514. Covell V. Cole, 167. Coverley v. Burrell, 538. Cowdin V. Cram, 156, 157. Cowell V. Simpson, 27. Cowenhoren v. Brooklyn (City of), 5. Cowles ?/. Buchanan, 118. V. Raguet, 287. V. Whitman, 19, 22. Cowley t/. Watts, 198, 315. Cowpe V. Bakewell, 744. Cox V. Boyd, 576. V. Cox, 52, 199, 250, 387, 748. V. Middleton, 6, 195, 421, 438. V. Scott, 1 56. V. Western Pacific R.R. Co., 526. Coyle V. Davis, 350. Cozine v. Graham, 398. Crabtree v. Levings, 609, 644. Cragg V. Holme, 1 59. Craig V. Johnson, 86. V. Kittredge, 497. V. Leiper, 656. V. Martin, 649. V. Missouri (State of), 281. V. Smith, 78. Craige v. Craige, 504. Crampton v. Varna R.R., 6. Crane v. Conklin, 429, 442. V. De Camp, 209, 575, 690. V. Gough, 5. V. Roberts, 175. Cranston v. Smith, 122. Cranstoun (Lord) v. Johnston, 66. Crary v. Goodman, 512. V. Smith, 617. Crawford v. Morrell, 279. V. Wick, 376. Crawley v. Timberlake, 468. Crawshay v. Collins, 58. Creigh v. Shatto, 546. Christian v. Cabell, 564. V. Ran some, 426. Cribbins v. Markwood, 241. Cripps V. Jee, 484, 503. Cristy v. Barnhart, 373. Crittenden v. Drury, 645. XVlll CASES CITED. [The figures refer to the pages.] Crocker 7'. Higgins, ii6, 364. Crockford 7>. Alexander, 135. Croft V. Arthur, 468. V. Haw, 148. Crofton V. Ormsby, 103, 589, 647. Crompton v. Melbourne (Lord), 703. Cromwell v. O wings, 521. Cronk v. Trumble, 371. Croome v. Lediard, 473, 529. Crop V. Norton, 339. Crosbie v. Tooke, 96, 99, 135, 590, 591. Crosby v. Davis, 79. V. Middleton, 507. Crosier v. Acer, 468, 481. Crosse v. Keene, 527, 539. V. Lawrence, 527, 539. Crossley v. Maycock, 173, 176. Crow V. Rogers, 74. Crowder v. Austin, 463. V. Langdon, 483. Crowe V. Ballard, 453. Croyston v. Banes, 1 30. Cruise v. Christopher, 429. Crull V. Dodson, 307. Crump V. U. S. Mining Co., 419. Cruttwell V. Lye, 44, 46. Cubitt V. Blake, 627. Cud V. Rutter, 24, 730. Cuddee v. Rutter, 163. Cuddon V. Cartwright, 218. Cuff 2/. Borland, 211, 402. Cullum V. Bank, 744. Cumberland Coal Co. 7a Sherman, 478. Cummings v. Arnold, 685. V. Coe, 4. V. Gill, 382. V, Mayor, etc., of Brooklyn, 8. ZK Steele, 203, 483. Cummins v. Nutt, 379. Cunningham v. Brown, 616. V. Gwinn, 608. V. Sharp, 549, 553, 569. Cuppy V. Hixon, 372. Curlin v. Hendricks, 251. Curling v. Flight, 197. Curran v. Holyoke Water Power Co., 78, 217, 720. Currier v. Howard, 96. Curry v. Keyser, 415. Curtis 7/. Buckingham (Marquis ol), 135. V. Fox, 461. V. Leavitt, 296. V. Perry, 520. V. Sage, 396. Cusack V. White, 285. Custar V. Titusville Water & Gas Co., 419. Custard z'. Custard, 481. Cutler V. Cochrane, 687. Cutler V. Smith, 687. Cutlett V. Bacon, 369. Cutting V. Dana, 20, 25. Cutts V. Thodey, 83, 676, 696. Da Costa v. Davis, 167. Dacre v. Georges, 518. Dade v. Madison, 287. Dailey 7/. Litchfield, 27, 103, 601. Dahoney v. Hill, in. Dakin v. Williams, 29. Daking v. Whimper, 462. Dalby v. Pullen, 564, 711. Dale V. Hamilton, 339, 356, 361. V. Lister, 272, 701. V. Roosevelt, 405. Dalton V. Dalton, 444. Dalzell V. Crawford, 545, 564. Dana v. Bank of St. Paul, 295. V. Brown, 84. V. King, 614. Danforth v. Laney, 375. V. Fhila., etc., R.R. Co., 69, 161. Daniel v. Adams, 94, 164. V. Collins, 119. V. Fraser, 7, 224. V. Hill, 578. V. Leitch, 566. V. Mitchell, 481, 489. V. Morrison, 127. Daniels v. Davison, 188, Dankel v. Hunter, 92. Darbey v. Whitaker, 43, 193. Dark v. Bagley, 351. Darling v. Roarty, 8. Darlington v. McCoole, 247. D'Arras v. Keyser, 268, 645. Dartmouth College v. Woodward, 296. Daughdrill v. Edwards, 226. Davenport v. Bishop, 76, 525. V. Mason, 355, 357. V. Sovel, 498. Davidson v. Little, 224, 244. Davies v. Davies, 444. Davis V. Abraham, 415. V. Bowker, 258. V. Cooper, 414. V. Darrow, 560. V. Davis, 94. V. Hall, 4. V. Harrison, 124. V. Hayden, 48, V. Henry, 89, 105. V. Hone, 2, 165, 213, 233, 506, 581. V. Jones, 163, 164. V. Marlborough (Duke of), loi, 235- l^The figures reter to the pages.] CASES CITED. XIX Davis V. Mason, 281. V. Moore, 375. V. Parker, 66, 243, 604, 724, 743. V. Perkins, 542. V. Shepherd, 490. V. Shields, 327, 336. V. Stevens, 634. V. Syrnonds, 209, 685. V. Townsend, 369, 379, 380, 685. Davison v. Davison, 389. V. Perrine, 563, 712. Davy V. Barber, 258, 745. Dawson v. Massey, 289. TJ. Solomon, 747. Day V. Cooley, 461. V. Griffith, 206. V. Newman, 239. Dayton v. Fisher, 94. Deaderich v. Watkins, 449. Dean v. Dean, 130, 398. V. Smith, 157. Deane v. Izard, 338. V. Rastron, 214, 245. Dearborn v. Cross, 687. Dearth v. Williamson, 553. De Beerski v. Paige, 327. De Begnis v. Armistead, 275, 285. De Biel v. Thomson, 332. De Brassac v. Martin, 740. De Camp v. Feay, 646. V. Crane, 645, 677. Deck's Appeal, 12, 18. De Cordova v. Smith, 659. De Forest v. Bates, 595. De Groft't^. American, etc., Co., 295. De Groot v. Vanduzer, 288. Dehogton v. Money, 79, 458. Deichman v. Deichman, 611. Delabere v. Norwood, 81. Delafield v. Anderson, 245. Delassus v. Poston, 594. Delavan v. Duncan, 553, 609, 610, 656. Demarest v. McKee, 654. De Mattos v. Gibson, 38, 143, 148, 152. De Medina v. Norman, 163. Deming v. State, 279. Denbo v. Tipton, 74. Denne v. Light, 225, 422, 424, Dennison v. (.Jothring, 588. Denniston v. Coquillard, 578. Denny v. Hancock, 420, 487. Dent V. Bennett, 289. Denton v. Jackson, 84. V. McKenzie, 309. V. Stewart, 161, 542, 730, De Peyster v. Hasbrouck, 502. De Pol V. Sohlke, 152. Derby v. Johnson, 692. De Rivahnoli v. Corsetti, 150, 156. De Rutte v. Muldrew, 269. Desell V. Casey, 492. Despain v. Carter, 1 19, 382. Devenish v. Brown, 163. De Visme v. De Visme, 742, 744. Dewey v. Moyer, 461. Deyer 7/. Martin, 129. Dial V. Crane, 693. V. Hair, 467. Dibble v. Hutton, 54. V. Jones, 428. Dickerson v. Chrisman, 355. Dickinson v. Any, 726. V. Lee, 539. V. McDermott, 136. Dietrichsen v. Cabburn, 41, 144, 145, 265. Dill V. Shahan, 471, 475. V. Wareham, 303. Diman v. Providence, etc., R.R. Co., 481. Dimmock v. Hallett, 431, 432. Dinham v. Bradford, 59, 63. Ditto V. Harding, 659, 660, 616. Dixon V. Rice, 571. Doan V. Mauzey, 731, 734. Doar V. Gibbs, 578, 631. Dobbs V. Norcross, 548. Dobell V. Hutchinson, 311, 710. V. Stevens, 438. Dobson V. Litton, 204. V. Racey, 289. Dock V. Hart, 364. Dodd V. Seymour, 248, 553. V. Wakeman, 349, 399. Dodge V. Clark, 126. Dodsley v. Kinnersley, 11. Dodson V. Swan, 279. Doe D. Gray v. Stanion, 197. Doe D. Lyster v. Goldwin, 188. Doe D. Mann v. Walters, 188. Doe V. Manning, 462. V. Pitcher, 285. Doggett V. Emerson, 416, 417. Dolman v. Nokes, 414. Doloret v. Rothschild, 10, 24, 633. Donallen v. Lenox, 279. Donnellan v. Read, 395. Donelson v. Posey, 159, 216. Doogood V. Rose, 610. Dooley v. Watson, 28, 44, 66. Doolin V. Ward, 281, 465, Dorsey T/. Campbell, 127. Doty V. Wilder, 308, 334. Dougan v. Blocher, 373, 383. Dougherty v. Dougherty, 468. V. Hamston, 7. Douglass V. Spears, 270, 323. Dow V. Ker, 471. Dowell V. Dew, 94, 96, 99, loi, 103, 376. XX CASES CITED. [The figures refer to the pages.] Dowling t/. Bitjemann, 21. Down V. Hatcher, 55. Downer 7'. Church, 721. Downey v. Hotchkiss, 350. Downing v. Mt. Washington R.R. Co., 296. Downing z/. Risley, 89, 91, 726. Downman v. Jones, 112. Downs V. Collins, 195, 522. Doyle V. Dixon, 394. V. Harris, 7. V. Teas, 604. Drainage Commrs. v. Dunkley, 313. Drake v. Barton, 740. V. Collins, 496. V. Latham, 431. Draper 7/. Gordon, 127. V. Pattina, 309. Dressel v. Jordan, 564, 566. Drew V. Clarke, 477. V. Haynes, 12. Drewe v. Corp , 535. V. Hanson, 627. Druiff 7^ Parker, 492. Drummond v. Bolton (Duke of), 169. Drury v. Conner, 369, 536. V. Hooke, 283. V. Mclins, 142. Drysdale v. Mace, 409, 437. Du Biel V. Thompson, 182. Duble V. Batts, 179. Dubois V. Baum, 659. Du Bois V. Del & Hud. Canal Co., 333. Dubose V. James, 564. Duddell V. Simpson, 695. Dudley %'. Bachelder, 122. V. Butler, 298, 7/. Colley, 278. V. Little, 465. DufTf7/. Fisher, 19, 20, 124, 605. Duffy V. O'Donovan, 616, 672. Dugan V. Colville, 366, 381, 640. V. Gitting, 391. V. Vattier, 455. Duke V. Andrews, 178. V. Mayor of Exon, 96. Dulany v. Rogers, 203, 483. Duncan v. Blair, 354. V. M'CulJDUgh, 216. Duncuft V. Albrecht, 24. Dundas v. Biddle, 164. Dundass v. Duiens, 390. Dunham v. Boston (City of), 185. V. Jackson, 155. Dunlap V. Gibbs, 1 18. Dunn V. Moore, 367, 384. Dunnell v. Kctlctas, 59. Dupree v. M' Don aid, 500, V. Thompson, 472. Durand v. Sage, 672. Durant v. Bacot, 507. V. Fitley, 53. Durell V. Haley, 409. V. Pritchard, 740. Durett 7/. Simpson, 538, 719, Durham (Dean ol), ex parte, 744. Durham v. Legard, 716, 719. Durst V. Swift, 29. Dustin V. Newcomer, 728, 752. Dutch Church v. Mott, 545, 565. Dutton V. Dutton, 53. V, Pool, T"]. Duvall V. Myers, 199, 261, 309. Dwight V. Cutler, 197, 560. V. Hamilton, 281. V. Pomeroy, 445, 446. D'Wolf7/. Pratt, 382, 616. Dyas V. Cruise, 273, 331, 700. Dyer v. Hargrave, 421, 436, 437, yew, 707, 714, 715. Dyer v. Martin, 398. Dygert v. Remerschnider, 461. Dykers v. Townsend, 331, 333. Dykes v. Blake, 711. Dyson v. Hornby, 742. Eads V. Carandolet, 174. V. Williams, 627, 633, 653, 659, 676. Eagleson v. Shotwell, 286. Eames v. Eames, 229. Earl V. Campbell, 549. V. Halsey, 576, 635. Early v. Garrett, 420, 540. East Anglican R.R. Co. v. Eastern Counties R.R. Co., 297. Eastbrook v. Hapgood, 754. Eastern Counties R.R. Co. v. Hawkes, 17, 109, 294, 297, 300. Eastern R.R. Co. v. Benedict, 333. East India Co. v. Nutuumbadoo Veera- sawny Moodelly, 396. East India Co. v. Vincent, 39. Eastland v. Vanarsdel, 224, 421. East London Water Works v. Baily, 109. Eastman v. Plumer, 224, 243, 467, 576, 616. Eaton V. Laughter, 168. V. Lyon, 47. V. Whitaker, 354, 356. Eaton's Case, 168. Ebert v. Wood, 379. Echliff 7/. Baldwin, 89, 135. Echols V. Butler, 696. Eckert v. Eckert, 356, 383. V. Mace, 387. Eddy V. Capron, 282. Edgerton v. Peckham, 593, 599, 646. [The figures refer to the pages.] CASES CITED. XXI Edinburgh, Perth & Dundee R.R. Co. V. Philip, 593. Edmonds v. Goodwin, 468. Edwards v. Atkinson, 631. V. Burt, 236. V. Estell, 359. V. Fry, 382. V. Grand Junction R.R. Co., 108, 228. V. Handley, 209, V. McLeay, 402, 408, 437. V. Meyrick, 289. V. Simmons, 1 13. V, Warwick (Countess ot), 76. V. Wickwar, 416. Egerton v. Mathews, 171, 323. Egmont (Earl of) v. Smith, 112, 583. Eigelberger v. Kibler, 467. Eider v. Allison, 417. V. Elder, 447, 510. Elderkin v. Fitch, 127. Eldred v. Mallory, 283. Elfe V, Gadsden, 335. Eliason 7/. Henshaw, 175. Ellard v. Llandaff (Lord), 215, 534. Ellerbe v. Ellerbe, 116. Elhcott V. Ellicott, 118. V. Turner, 394. V. White, 410. Elliott V. Armstrong, 106. V. Boaz, 423. V, Thomas, 378. Ellis V. Burden, 36, 224. V. Colman, 161. V. Dead man, 204, 316. V. Ellis, 119, 353. V. Hussey, 577. V. Smith, 326. Elmore v. Austin. 499. V. Kingscote, 190. Else V. Else, 548. Elsworthy v. Bird, 54. Ely V. McKay, 613, 673. V. Perrine, 117, 483, 484. V. Stewart, 425. Emans v. Emans, 61. Emerson v. Heelis, 335. Emery v. Grocock, 195, 556. V. Smith, 395. V. Wase, 62, 163, 164. Emmett v. Dewhurst, 510. Emmons v. Riger, 618. Enders v. Williams, 462. Endicott v. Perry, 334. England v. Curling, 42, 43, 141, 683. V. Downs, 283. V. Jackson, 519. Englander v. Rogers, 605, 608. Ennis v. Waller, 335. Enraght v. Fitzgerald, 745. Entz V. Mills, 335. Episcopal Church of Macon v. Wiley, 335- Episcopal Society v. Episcopal Church in Dedham, 302. Eppinger v. McGreal, 663. Erie & N. Y. City R.R. Co. v. Patrick, .530- Errington v, Aynesly, 33, 165. Erwin v. Erwin, 173. V. Myers, 701, 713. V. Parham, 246. V. Saunders, 685. Esdaile v. Stephenson, 555, 708, 743, 744. Eskridge v. Glover, 172. Esmay v. Gorton, 309, 398. Espey V. Lake, 443. Esposito V. Bowden, 275. Espy V. Anderson, 347, 686. Estes V. Furlong, 323, 661. Estill V. Clay, 97. Etheridge v. Vernoy, 717. Eubank v. Hampton, 672. Evans v. Battle, 250, 390, 748. V. Boiling, 431. V. Cogan, 165. V. Edmonds, 402. V. Ellis, 289. V. Evans, 53. V. Harris, 129. V, Jackson, 79, 91. V. Kingsberry, 569, 707. V. Lee, 355, 396. V. Llewellin, 453. V. Prothero, 317. V. Richardson, 277. V. Walshe, 229. V. Wells, 113, 331. Evants v. Strode, 494. Everson v. Kirtland, 553. Ewald V. Lyons, 691. Ewing V. Beauchamp, 660. V. Crouse, 642. V. Osbaldiston, 275. V. Patterson, 127. Ewins V. Gordon, 16, 260, 262, 308, 615,657. Express Co. v. R.R. Co., 41. Eyre v. Eyre, 351, 360, 669. V, Menro, 105. V. Potter, 116, 237, 443, 450. Eyton V. Dicken, 556. Fagan v. Barnes, 74. Faikney v. Reynous, 288. Faine v. Brown, 234. Fairbanks v. Dow, 609, 614. Fairbrother v. Shaw, 365. xxu CASES CITED. [The figures refer to the pages.] Falcke v. Gray, 22, 211, 421, 450. Falkner v. O'lJrien, 453. Fall V. Hazelrigg, 399, 611. Fallon 7/. R.R. Co., 524. 7A Robbins, 475. Falls V. Carpenter, 640. V. Gaither, 180. Fannin -v. McMullan, 339. Fanning 7>. Dunham, 286, 453. Farebrother v. Simmons, 329. Fareira v. Gabell, 286. Farley v. Bryant, 484. V. Palmer, 725. V. Stokes, 384. V. Vaughn, 647, 672. Farmer v. Russell, 276. V. Vollentine, 15. Farmer's Loan & Trust Co. v. Clowes, 295. Farmer's Loan & Trust Co. v. Perry, 295. Farmer's & Miller's Bank v. Detroit & Milwaukee R.R. Co., 302. Farmer's National Bank v. Fletcher, 542. Farnam v. Brooks, 289. Farnham v. Clements, 122, 350. Farr v. Glading, 224. Farrar v. Alston, 439. V. Patton, 355. Farrell v. Bean, 198. Farrer v. Ayres, 472. Farris v. Bennett, 657. Farwell v. Johnston, 368. • V. Lowther, 323. V. Mather, 320. Faure v. Martin, 540, 719. Fawcett v. Whitehouse, 729. Fay V. Oliver, 689, 694. Feary v. Sterling, 395. Featherston u. Hutchinson, 279. Featherstonaugh v. Fenwick, 100. Featherstone v. Cook, 141. Fechter T/. Montgomery, 138. Fellowes v. Gwyclyr (Lord), 100, 439. Fells V. Read, 23. Fenelly v. Anderson, 266. Fenly v. Stewart, 113, 323. Fenner v. Hepburn, 10. Fennings v. Humphery, 6. Fentiman v. Smith, 386. Fenton v. Emblers, 394. V. Hollo way, 216. Fenwick v. Bulman, 83, 98. V. Floyd, 335. Ferguson v. Norman, 285. V. Paschall, 22. V. Staver, 318. V. Tadman, 707. z/.Wilson, 6, 1 14, 542, 737, 740. Ferrier v. Buzick, 542. Ferris v. Irving, 204. Ferry v. Stephens, 250. Ferson v. Sanger, 481. Fessler's Appe il, 635. Feversham (Earl of) v. Watson, 586. Fewster v Turner, 580. Field V. Hutchinson, 122, 128. V. Jones, 12. V. Maghee, 99. V. Mann, 682. V. Wilson, 118. Fife V. Clayton, 484. Fildes V. Hooker, 197, 233, 572, 708, 716. Finch V. Finch, 391. V. Parker, 663. V. Salisbury (Earl of), 29, 104. Fine v. Rogers, 6S9. Finley v. Aiken, 18. V. Lynn, 492. Finn v. Sleight, 560. Finucane v. Kearney, 382. Firmstone v. De Camp, 483. First Baptist Church of Ithaca 7^. Bige- low, 314, 334. Firth V. Greenwood, 330. V. Midland R.R. Co., 58, 72. Fish V. Leser, 211, 215. V. Lightner, 7. Fisher 7/. Boody, 116. V. Bowser, 120. V. Moolick, 373. V. WorraJl, 420. Fishmonger's Co. v. Robertson, 301. Fitch V. Boyd, 577, 668. V. Sutton, 55. V. Wiliard, 660. Fitt V. Cassanet, 693. Fitzer v. Fitzer, 54. Fitzgerald v. Peck, 481. Fitzhugh V. Jones, 178. V. Maxwell, 31. V. Smith, 99. Fitzpatrick v. Beatty, 199. V. Stone, 541. Fitzsimmons v. Allen, 369. V. Joslin, 419. Flagg V. Mann, 729. Flagler v. Pleiss, 447. Flanagan v. Gt. Western R.R. Co., 290. Flarty 7/. Odium, loi. Fleming v. Holt, 78, 91. V. Martin, 461. V. Snook, 146. Fletcher v. Button, 553. V. Cole, 685, 694. V. Fletcher, 53. V. Wilson, 127. '[The figures refer to the pages.] CASES CITED. XXlll Flight V. Barton, 197, 438. V. Bolland, 159, 262, 270. V. Booth, 712, 716. Flint V. Brandon, 38. V. Woodin, 463. Flood V. Finlay, 100. Florence Sewing Machine Co. v. Zeig- ler, 462. Flower v. Flower, 54. Floyd V. Buckland, 391. Fluyder v. Cocker, 744. Foley V. Crow, 569, 582, 659, 705. V. Keegan, 29. V. McKeown, 539, 706, 717. Follmer v. Dale, 369. Fonbert v. Turst, 64. Fonnger v. Welch, 125. Foot v. Webb, 199. Foote V. Emerson, 277. V. Garland, 16. V. Mitchell, 373. Footman v. Pendergrass, 462. Force v. Dutcher, 318, 362. Ford V. Crompton, 103. V. Finney, 307. V. Harrington, 278. V. Heely, 82. V. Heron, 232. V. Hitchcock, 159, 216. V. Jermon, 153. V. Williams, 333. Fordyce v. Ford, 137, 626, 627, 655. Fore V. McKenzie, 439. Fores v. Johnes, 285. Forniquet v. Forstall, 84. Forrer z/. Nash, 555, 711. Forrest v. Forrest, 154. V. Hunt, 287. Forsythe v. Clark, 119, 459, 460. V. Manton, 58. V. McCauley, 18. Forteblow v. Shirley, 538. Fortescue v. Hennah, 52, 105. Forward v. Armistead, 247, 389. Foss V. Haynes, 103. 726. Foster v. Charles, 423. V. Deacon, 707, 746. V. Hall, 354, 361. V. Hoggart, 564. V. Mentor Life Ass. Co., 181. V. Taylor, 205. V. Vassal I, 66. V. Wood, 458. Fothergill v. Rowland, 21, 13S, 139. Fowle V. Freeman, 267, 270, 315. Fowler v. Lightburn, 87. V. Kedican, 188, 347. V. Scully, 275. Fox V. Birch, 606. V. Loughby, 384. Fox V. Mackreth, 289, 414. Frame v. Dawson, 361, 366, 383. Frampton v. Frampton, 54. France v. France, 389. Francis v. Love, 668. V. Wigzell, 93, 94, 160. Frank v. Basnett, 137, 703. Frankfort, etc., Turnpike Co. r/. Churchill, 576. Franklin v. Brownlow (Lord), 590. V. Miller, 693, 695. Franklin Ins. Co. v. McCrea, 5. Franklyn v. Lamond, 528. V. Tuton, 35. Franks v. Martin, 199, 206. V. Weaver, 442. Franz v. Orton, 567, 734. Frarey v. Wheeler, 92, 94, 725. Fraser v. Child, 307. Frazier 7/. Broadnax, loi. Frederick v. Coxwell, 163, 164, 166. Fredericks v. Mayer, 151. Freebody v. Parry, 606. Freelove v. Cole, 278. Freeman v. Baker, 420. V. Cooke, i8r. z). Freeman, 382, 387. Freemster v. May, 553. Freeport (Inhabs. of) v. Bartol, 312. Freer 7/. Hesse, 554, 556. Freeson v. Bissell, 613. Freetly v. Barnhart, 550. Freme v. Wright, 197. French v. Macale, 27, 30, 31, 32. V. Shoemaker, 453. Frenzel v. Miller, 417. Friebert v. Burgess, 187, 198. Friend v. Harrison, 285. Fripp V. Fripp, 240. Frisby v. Ballance, 7, 208, 483. V. Parkhurst, 52. Frith V. Lawrence, 179. V. Midland R.R. Co., 192, 542. Frost V. Beavan, 160. V. Hill, 334. V. Moulton, 315. V. Raymond, 196. Fry V. Shepler, 354, 378. Fryer v. Rockefeller, 552. Fugate V. Hansford, 316, 451. Fugatt V. Robinson, 56. Fulham v. McCartfiy, 79, 97, in. Fuller V. County Commrs., 351, 379. V. Dame, 282. V. Hogden, 439. V. Hovey, 663. V. Hubbard, 015. V. Perkins, 402. V. Trustees of Plainfield School, 296. XXIV CASES CITED. [The figures refer to the pages.] jj Fullerton v. Doyle, 691. V. McCurdjf, 89, 1 03, 727. Fulton V. Loftis, 454. V. Sniitli, 56. Funk 7'. McKeoun, 564. Furbish v. White, 576. Furman %>. Clarke, 20. Furnival v. Crew, 46, 47, 90. Furnold v. Bank of the State, 748. Gage V. Newmarket R.R. Co., 297, 593. Galbraith v. Galbraith, 388. V. Gedge, 92. Gale IK Archer, 609, 631, 636, 659. V. (}ale, 441. V. Leckie, 276. V. Lindo, 181. V. Nixon. 327. Gallatin v. Erwin, 127,429. Gallion v. IvIcCaslin, 455. Galloway v. Barr, 247, 657. V. Holmes, 197. V. Witherspoon, 429. Galton V. Emuss, 86, 465. Gangwer v. Fry, 383. Gannett v. Albree, 620. Gans V. Renshaw, 560. Gardiner v. Gerrish, 700. Gardner v. Booth, 462. Gardner, ex parte, 198, 676. Gariss v. Gariss, 668. Garner T/. Garner, 478. V. Stubblefield, 366, 398. Garnett v. Maron, 209, 232, 240, 541, 554, 660, 689. Garrard v. Grinling, 475, 505, 517. Garretson v. Vanloon, 576, 634. Garrett v. Luich, 573, 639. Garrow v. Davis, 439. Garth v. Cotton, 441. V, Townsend, 520. V. Ward, 727. Gartside v. Isherwood, 210. Garwood v. Eldridge, 472. Gaskarth v. Lowther (Lord), 175, Gaskell v. Durdin, 727. Gaskins z/. Peebles, 121. Gas Light Co. v. Turner, 275. Gasque v. Small, 208, 209, 211, 239. Gaston v. Frankum, 93, 119, 160, 309. V. Plumb, 9; . Gatlin v. Wilcox, 685. Gaunt V. Wainman, 560. Gaven v. Hagen, 603. Gavin v. Murphy, 472. Gayle v. Price, 560. Gasley v. Price, 197, 553, 609. Gazzard v. Webb, 406. tieddes v. Wallace, 683. Gee V. Pearse, 658, 675. Geisner z*. Kershner, 55, 680. Gelston v. Sigmund, 206. Genet v. Howland, 732. Gentry t/. Hamilton, 535. V. Rogers, 663. George v. Harris, 282. Gerde v. Hawkins, 443. German 7a Machin, 260, 368. Gerrard v. O'Reilly, 30. Gerrish v. Towne, 121. Gervais v. Edwards, 58, 264, 524, 525, 53'- Getchell v. Jewett, 323, 659. Getty V. Hudson River R.R. Co., 114. Gevers v. Wright, 252. Gibbins v. Northeastern Dist. Asylum, 179, 316. Gibbons v. Gaunt, 56, 471. Gibbs V. Blackwell, 90. V. Champion, 644. V. Mermaud, 156. V. Smith, 282. Gibson v. Clarke, 605. V. D'Este, 423, 437. V. Dickie, 284, 285. V. Goldsmid, 407, 584. V. Milne, 594. V. Patterson, 627. V. Randolph, 443. V. Russell, 452. V. Spurrier, 538. Gifford V. Thorn, 449. Gilbert v. Gilbert, 473. V. Petcler, 750. V. Sykes, 394. V. Trustees, etc., 323, 366. Gilchrist 7/. Bine, 553. V. McGee, 380. Gilday v. Watson, 369. GilfiUan v. Henderson, 45. Gill V. Bicknell, 334, 348. V. Newell, 369, 610. Gillespie v. Edmonston, 180. V. Moon, 403, 507, 511, 514. Gillet V. Maynard, 354. Gillilan v. Hinkle, 539, 717. Gilliland v. Phillips, 275. Gillis V. Hall, 27, 46. Gilman v. Brown, 27. Gilmore v. Johnson, 350. Gilpin V. Watts, 121. Gilroy V. Alls, 402. Givens v. Caider, 357, 358, 373. Glass V. Hulbert, 306, 338, 347, 355, 367, 510, 513. Glass V. Warwick, 93. Glasscock v. Nelson, 668. Glasse v. Marshall, 442. Glassell v. Thomas, 717. [The figures refer to the pages.] CASES CITED. XXV Glassington v. Thvvaites, 142. Glaymaker ?/. Sawin, 175. Glaze V. Drayton, 16, 86. Glengal (Lord) v. Barnard, 315, 332. Glover v. Fisher, 89, 644, 652. V. Smith, ''19. Goddard v. Carlisle, 289. Goddin v. Vaugn, 15, 552. Godwin v. Collins, 209, 213, 227. Goilmere v. Battison, 53, 105. Golden v. Knapp, 545. Goldsmith v. Guild, 640. Goman v. Salisbury, 685. Good V. Herr, 472. V. Mcale, 366. Goodale v. West, 600, 611. Gooday v. Colchester, etc., R.R. Co., 109. Goode V. Hawkin, 465. Goodell V. Field, 492, 514, 656. Goodenow v. Curtis, 123, 412. Goodhue v. Barnwell, 360. Gooding 7/. M'Alister, 513. Goodman v. Griffiths, 190, 311. V. Whitcomb, 42. Goodwin v. Fielding, 103, 218, 243. V. Lyon, 199. 384, 635. V. Milton, 298. Gordere v. Downmg, 484. Gordon v. Gordon, 56, 476. (Lord) V. Hertford (Marquis ot), 402, 475, 506, 517. V. Parmelee, 431. V. Saunders, 117. V. Trevelyan, 195. Gore V. Stackpool, 87. Goring v. Nash, 76, ^25. Gorton v. Smart, 622. Gosbell V. Archer, 311, 328, 334. Gosden v. Tucker, 360. Goss V. Nugent (Lord), 685, 688. Gosse V. Jones, 363. Goucher v. Martin 519. Gough V. Crane, 392. Gould V. Kemp, 224. V. Womack, 7, 224. Gourlay v. Somerset (Duke of), 58, 194, 621. Gouverneur v. Titus, 497, 510. Governeur 7/. Elmendori, 116. Gower v. Sterner, 499. Goylmer v. Paddiston, 105. Grace v. Dcnison, 190, 206, 314. Graffenstein v. Epstein, 424. Grafton v. , 137. Graham v. Call, 191, 192, 199. V. Gates, ^36. V. Hendren, 204. V. Oliver, 274, 536, 702. V. Pancoasl, 241. Graham v. Stucken, 156. Granger v. Worms, 712. Grant v. Craigmiles, 129. v. Munt, 436, 707, 715. V. Ramsey, 381. V. Schoonhoven, 79. Granville v. Betts, 525. Gratz V. Gratz, 374. Graver v. Scott, 430. Graves v. Dugan, 349. V. Lebanon iSIat. Bank, 417, 418. Gray v. Barton, 251. V. Davis, 122. V. Dougherty, 512, 611. V. Hook, 282. V. James, 317. V. McCune, "j^. V. Ohio & Pa. R.R. Co., 139. Greason v. Kettletas, 58. Great v. Mills, 27. Northern R.R. Co. v. Eastern Counties R.R. Co., 102. Northern R.R. Co. v. Manches- ter, Sheffield & Lincolnshire R.R. Co., 144, 201. North of England R.R. v. Clar- ence, 141. Western R.R. Co., v. Birming- ham & Oxford Junction R.R. Co., 134. 163, 272, 532. Western R.R. Co. v. Rushout, 299. Green v. Ball, 344. V. Biddle, 748. V. Covilland, 601, 664. V. Drummond, 730. V. Finin, 382, 671. V. Folgham, 43. V. Green, 133. V. Low, 137, 532, 583. V. Morris, etc., R.R. Co., 478. V. Nixon, 441. V. Pole, 60. V. Pulsford, 559. V. Reynolds, 609, 614. V. Richards, 267. V. Sm'th, 161. V, Thompson, 238, 450. V. Wells, 689. Greenaway v. Adams, 25, 161, 542, 721, 730- Greene v. West Cheshire R.R. Co., 14, 72. Greenfield v. Carlton, 118. Greenhalgh v. Manchester & Birming- ham R.R. Co., 109, 166. Greenleaf 7/. Queen, 534. Greenlee v. Greenlee, 378. Greenup v. Strong, 576. 600. Greenwood v. Churchill, 744. XXVI CASES CITED. [The figures refer to the pages.] Greenwood 7/. Ligon, 553. Gregg V. Hamilton, 382. V. Sayres, 443. z/. Wells, 181. Gregorys. Mighell, 64, 371, 373, 397. V. Wilson, 619, 624, 625. Gregson v. Riddle, 627. Gremare v. Le Clerc Bois Valon, 285. Grenfell v. Windsor (Dean of), loi. Grenningham 7/. Ewer, 169. Gresham v. Peterson, 157. Grey v. Hesketh, 163. V. Tubbs, 191, 198, 638. Griffin v. Cunningham, 257, 545, 548, 655. Griffith V. Frederick County Bank, 7, 58, 71, 224. Zf. Spratley, 238, 245, 453. Griffiths V. Robbins, 452. Grigby v. Cox, 94. Grigg V. Landis, 584, 596, 599, 635. Grim v. Byrd, 430. Gross V. Leber, 48 1 . Grove v. Bastard, 549, 559. Groves v. Groves, 247. Grundy v. Ford, 563. V. Wilson, 659. Gryle v. Gryle, 326. Guard v. Bradley, 78. Guedici v. Boots, 495. Guernsey v. Am. Ins. Co., 513, 514. 7'. Edwards, 298. Guest V. Homfray, 653. Gulick V. Bailey, 465. Gully V. Grubs, 395. Gump's Appeal, 492. Gunby v. Sluter, 417, 425. Gunter v. Halsey, 360, 398. V. Thomas, 471. Gupton V. Gupton, 52, 161, 532, 732. Guth V. Guth, 54. Guthrie v. Thompson, 685. Guynet v. Mantel. 572, 709. Guynn v. McCauley, 250. G Willi m V. Stone, 730. Gwynn v. Hamilton, 471. V. Lethbridge, 484. Gwynne v. Heaton, 449. Haberdasher's Co. 7a Isaac, 212. Hackett v. Aicott, 29. Haden v. Garden, 442. Hadley 7/. Scranton, 415. Haggett V. Welsh, 60. Haight V. Badgeley, 68. V. Childs, 363. Haines 7/. Burnett, 171. V. Haines, 249, 382, 383, 387. Hairston v. Jaudon, 353, 690. Hale V. Wilkinson, 7, 240, 247, 673. Hall V. Betty, 197. V. Canter, 269. V. Chaffee, 386. V. Claggett, 507. V. Delaplaine, 596, 645, 735, 752. V. Denckla, 197. V. Green, 663. V. Hall, 176, 363. V. Hardy, 60, 164. V. Hiles, 20. V. Hume, 93. V. Huntoon, 285. V. Jenkinson, 1 17. V. Laver, 83, 95, 98, 682. V. McLeod, 205. V. Mullin, 275. V. Palmer, 285. V. Potter, 283. V. Reed, 480. V. Ross, 224. V. Russell, 628. V. Smith, 538. V. Thompson, 414, 426, 431. V. Warren, 4, 7, 160, 194. V. Whittier, 602. Hallett 7/. Middleton, 161. Hallows V. Fernie, 409. Halsa V. Halsa, 308. Halsey v. Grant, 571, 627, 708. Hamar v. Medsker, 213. Hamblin v. Dinneford, 150. Hamer 7/. Sharp, 172. Hamill v. Thompson, 606. Hamilton v. Beal, 443. V. Buckmaster, 551. V. Dunsford, 143. V. Grant, 226, 242. V. Hamilton, 463, 735. V. Jones, 307, 355, 383. V. Kirwan, 443. V. Lycoming Ins. Co., 179. Hammer 7^. McEldowney, 185, 204. Hammersley 7/. Du Biel, 181, 391. Hammond 7/. Messenger, 118. V. Pennock, 418, 467. Hampshire 7/. Wickens, 171. Hanchett 7/. McQueen, 79, 121. Hancock v. Carlton, 596, 599. u. Edwards, 19.''. V. Hancock, 588. Hand v. Jacobus, 92. Handley v. Fitzburgh, 5. Hane v. Goodrich, 355. Hanford v. McNair, 331. Hanks v. Pulling, 255. Hanna v. Phillips, 429. V. Ratekin, 126, 642. V. Wilson, 95. Hannay v. Eve, 444. [The figures refer to the pages.] CASES CITED. XXVll Hannibal & St. Jos. R.R. Co. v. Ma- rion, 292. Hanson v. Michelson, 248. Harbers v. Gadsden, 701, 702, 707. Harcourt v. Ramsbottom, 60. Hardeman v. Burge, 240, 449. Harden v. Hays, 384. Harder v. Harder, 52, 385. Hardesty v. Jones, 395. V. Richardson, 199, 388. Harding v. Cox, 100. V. Handy, 88, 89. V. Metrop. R.R. Co., 17, 61. V. Parsliall, 120, 121, 712. V. Randall, 417. Hardy v. Martin, 4^1.. Hare v. Surges, 47. V. Shearwood, 484, 502. Harford v. Furrier, 257, 746, 747. Hargrave v. King, 341. Hargreaves v. Wright, 84. Harker v. Haverly, 610. Harnett v. Baker, 212, 420. V. Yielding, 3, 47, 208, 217, 218, 273, 402, 568. Harper v. Whitehead, 92. Harrell v. Kelly, 467. Harrington v. Harrington, 507. V. Pinson, 103. V. Wheeler, 626, 653. Harris v. Delahar, 444. V. Kemble, 421, 422, 438, 440. V. Kidwell, 662. V. Knickerbacker, 122, 123, 363, 373. 398. V. Lloyd, 473. V. Pepperel, 483. V. Roof, 282. V. Runnels, 286. V. Smith, 444. V. Tyson, 237, 414. Harrison v. Close, 248. V. Deramus, 731. V. Gardner, 508. V. Guest, 452. V. Howard, 514. V. Lemon, 216. V. Stewart, 93. V. Town, 237. Harrocks v. Rigby, 162. Harrod v. Cowan, 482. Harry v. Davey, 80. Harsha v. Reid, 751, 753. Hart V. Brand, 165, 740. V. Carroll, 360. V. Herwig, 22, 66. V. McClellan, 124, 366, 605. V. Rensselaer & Saratoga R.R. Co., 296. V. Woods, 334. Hartford & New Haven R.R. Co. v. Jackson, 174. Hartley v. Rice, 283. V. Smith, 558. Hartzel v. Reiss, 446. Harvey v. Ashley, 588. V. Grabham, 685. V. Harvey, 520. Harvie v. Banks, 576. Harwood v. Tooke, 49. Haskell v. Allen, 191. Hasket v. Wootan, 287. Haslett V. Haslett, 378. Hastie v. Couturier, 254. Hatch V. Cobb, 641, 731, 734. V. Hatch, 289. Hatcher z/. Hatcher, 125, 321, 356, 374. Hatton V. Gray, 267, 270, 323. V. Johnson, 606. Hatztield v. Gulden, 282. Haugh V. Blythe, 395. Haughwort v. Murphy, 659, 725,727,728. Hauser v. Roth, 125. Haven v. Beidler Manf. Co., 746. Havens v. Bliss, 563. Hawey v. Alexander, TJ. Hawk V. Greensweig, 612. Hawkes v. Eastern Counties R.R. Co., 163, 228, 230, 265, 593. Hawkins v. Chace, 325, 331. V. Holmes, 325, 328, 393. V. Hunt, 350. V. Palmer, 418. ' Hawley v. Cramer, 465. V. Jelly, 679. V. Sheldon, 260. Hawralty v. Warren, 267, 472, 722. Hawthorn v. Bronson, 666. Haycraft v. Creasy, 420. Hayden v. Bucklin, 728. Haydock v. Stow, 315. Hayes v. Harmony Grove Cemetery, 555. 556. V. Kershow, "j"], 247, 248. V. Ward, 10. V. Willio, 152. Haygarth v. Waring, 449. Haynes v. Covington, 296. ^^^ V. Hare, 484. Hays V. Hall, 96, 582. V. HoUis, 2 |o. Haj'ward v. Purssey, 116. Haywood v. Cope, 7, 187, 221, 229, 237, 409. 421. V. Covington, 5. V. Marsh, 467. Hazard v. Day, 312. V. Irwin, 402, 417. V. New England Mar, Ins. Co., 174. XXVlll CASES CITED. [The figures refer to the pages.] Hazelrig 71. Hutson, 724." Head v. Muir, 521. V. Providence Ins. Co., 292. Heap V. Tonjje, 220. Heaphy v. Hill, 67 «. Hearne v. Tenant, 638. Heathcote v. North Staffordshire R.R. Co., 148. Heather v. O'Neil, 94. Heckard v. Say re, 637. Hedenberg v. Jones, 616, 660. Hedrick v. Hern, 356. Heilbron v. Bissell, 471. Heimburg 7k Ismay, 544, 723, Helling ?'. Lumley, 234. Helsham 7a Langley, 210, 488, 507. Hemingway v. Fernandes, 83. Hemphill v. Miller, 659. Henderson v. Dickey, 513. z>. Hayes, 7, 216, 241. V. Henderson, 544. V. Hudson, 421. V. Lacon, 432. 7K R.R. Co., 419. Hendrickson v. Hendrickson, 606. V. Ivins, 483, 500. Henkle v. Royal Exch. Ass. Co., 507, 514. Henlen v. Martin, 741. Henning v. U. S. Ins. Co., 682. Henry v. Corm, 665. 7J. Graddy, 700. V. Jones, 640. V. Liles, 167. Hensler v. Sefrin, 497, 542. Henty v. Schroder, 734. Hepburn 7/. Auld, 564, 576, 631, 707. 7J. Dunlop, 564. Hercy v. Birch, 41, 42. Heriot's Hospital (Feoffees of) v. Gib- son, 579. Hermann v. Hodges, 43. Heron v. Heron, 244. Herrin v. Butler, 394. Hersey v. Giblett, 89, 103, 195. Hertford (Marquis of) v. Boore, 652. Herv'ey 7/. Audland, 247. Hesse 7/. Briant, 215. Hester v. Hooker, 7. Helh V. Woodridge, 192, 347, 355. Heuer v. Rutkowski, 600. Hewitt V. Brown, 682. V. Crane, 289. Hewlins v. Shippam, 386. Heyer v. Burgher, 53. Hibblethwaite v. M'Morine, 163. Hickey v. Drake, 405. Hickman v. Grines, 350. V. Quinn, 459. Hicks V. Hankin, 335. Hicks 7'. Whitmore, 336. Hidden v. Joran, 339, 340, 341. Higby 7). Whittaker, 659. Higdon V. Thomas, 325. Higginbottom v. Short, 7. Higgins V. Samels, 420. V. Senior, 112, 113. Higginson v. Clowes, 486, 505, 507, 510. Hightower v. Smith, 545. Hill V. Barclay, 37, 620. V. Brower, 402. V. Buckley, 217, 272, 422, 437, 540, 719, 720. V. Bush, 481. V. Cumberland Valley Mu. Protec- tion Co., 746. V. Fiske, 567. V. Gomme, 74, 76, 78, 264, 685, 691. V. Grigsby, 607, 609. V. Hobart, 553, 614, 615, 695. V. Paul, loi. V. Reifsnider, 136. V. Ressegieu, 86. Hillary v. Waller, 195. Hills V. Croll, 144, 264. V. Elliott, 343. Hilton V. Duncan, 748. 7/. Gilman, 196. Hinckley v. Smith, 93, 93, 543, 544, 709. Hinde v. Gray, 148. V. Whitehouse, 314, 334. Hindley v. Westmeath, 53. Hines v. Baine, 600. Hinkle v. Margerum, 542. Hinton v. Hinton, 85, 87, 453. Hipwell V. Knight, 597, 630, 631, 635, 675- Hitchcock V. Giddings, 253, 490. 7'. Harrington, 560. Hitner's Appeal, 53. Hoagland v. Latourette, 89, 726. V. Segar, 281. Hoback 7/. Kilgores, 197. Hobbs V. Hull, 54. Hobson V. Trevor, 27, 31, 49. Hodges V. Blagrave, 47. ex parte, 599. V. Howard, 316, 341. V. Johnson, 652. V. Spicer, 249. Hodgkinson v. Wyatt, 509. Hodgson 7/. Hutchinson, 172. 71. Temple, 288. Hodson V. Coppard, 146. Hoen V. Simmons, 350, 576, 600. Hoffman v. Fett, 197, 382. Hoge V. Hoge, 341. {The figures refer to the pages.] CASES CITED. XXIX Hogg V. Kirby, 440. V. Wilkins, 349. Hoo-gart V. Scott, 271. Holbrook v. Armstrong, 395. Holden v. Hayn, 83, 95, 98, 682. Holland v. Anderson, 426, 732, 735. V. Eyre, 176. V. Hinsley, 247. V. Holmes, 197, 552. Hollinda v. Shoop, 349. Hollingshead v. McKenzie, 129, 398. Hollis V. Chapman, 530, V. Edwards, 370. V. Whiteing, 338. Holman v. Bank of Norfolk, 316. V. Crisvvell, 125, 552. V. Johnson, 277, 288. Holme's Appeal, 404, 420. Holmes v. Eastern Counties R.R. Co., 143, 144, 208, 624. Holme's Estate (Matter of), 444. Holmes v. Evans, 188, 319. V. Fresh, 237. V. Holmes, 248, 383, 544. V. Powell, 90. Holt V. Holt, 35, 88. V. Rogers, 669. Holy land, ex parte, 160. Home Manuf. Co. v. Chicago, 7. Homer v. Ashford, 148. Homfray v. Fothergill, 603. Honeyman v. Marryatt, 173, 315, 627. Hood V. Bowman, 366, 373. V. New York & New Haven R.R. Co., 295, 296, 352. V. Northeastern R.R, Co., 18, 36. Hook V. Kinnear, 75. Hooker v. Pynchon, 28. Hoomes v. Smock, 287. Hooper, ex parte, 360, 366. Hooper v. Lanes, 203, 320. V. Smart, 272, 570. Hoover 7/. Calhoun, 93, 543, 576, 750. V. Donally, 97. Hope V. Hope, 54, 65, 264, 532. Hopcraft v. Hickman, 190. Hopkins v. Oilman, 60, 185, 733. v. Hopkins, 87. V. Lee, 695. V. Stump, 248. Hopper V. Hopper, 14. Hoppough V. Struble, 497. Hord V. Miller, 20. Horn V. Luddington, 366, 513, 731. Home V. Fonda, 729. V. Fricke, 331. Horniblow v. Shirley, 708. Horsfall v. Garnett, 171, 176. V. Thomas, 436. Hosier v. Read, 129. Hotchkiss V. Forston, 216. Hotsom V. Browne, 422. Hough V. Coughlan, 660. V. Richardson, 416, 417, 419, 433. 425- Houghton V. Lees, 49, 247. House V. Beatty, 670. V. Dexter, 88. Houser v. Lament, 397. Houston V. Mathews, 380. Howard v. Burgen, 394. V. Carpenter, 520. V. First Independent Church of Baltimore, 282. V. Hopkins, i"], 32, 103. V. Hudson, 181. V. Kimball, 533, 535, 709. V. Moore, 7. V. Okeover, 128. V. Woodward, 29, Howarth v. Smith, 545. Howe V. Conley, 610, 711. V. Hunt, 6, 739. V. Nickerson, 62. V. Rogers, 382, 663. 7/. Synge, 285. Howell V. George, 163, 165, 488. V. Howell, 745. V. Ransom, 289. Howes V. Barker, 719, 720. Howland v. Norris, 422, 555, 706, 708, 742. Howson V. Hancock, 302. Hoy V. Hansbrough, 16, 19. V. Smythies, 698. Hoyle V. Livesey, 259. Hoyt TJ. Tuxbury, 198, 616, 658. Hubbard v. Gray, 659. Hubbell z^. Courtney, 122. V. Van Schoening, 609, 645, 654, 657. Huber v. Burke, 542. Hubert v. Treherne, 328. V. Turner, 325, 328, 331. Huddlestone v. Briscoe, 171, 315, 317. Hudson V. Bartram, 134, 627, 676. V. Buck, 550. V. Hudson, 540. V. King, 7, 247, 318. V. Layton, 6. V. Swift, 614. V. Temple, 634. V. Ware, 478. Huey V. Grinnell, 526. Huff 7/. Jennings, 600. V. Shepard, 187, 190, 199, 308. Huffman v. Fry, 501. V. Hummer, 642, 687. Huffner v. Dickson, 660. Hughes V. Greene, 22. XXX CASES CITED. [The figures refer- to the pages.] Hughes V. Hatchett, 563. V. Jones, 711. 71. McKinsey, 574. V. Metropolitan R.R. Co., 37. V. Parker, 196. V. Statham, 43. V. Wells, 520. Hugus 7'. Walker, 387. Huldeman v. Chambers, 576. Hull V. Noble, 22, 631. V. Peer, 129. V. Sturdivant, 28, 674. Hulme V. Tenant, 92, 160. Hulmes v. Thorpe, 535, 582. Hultz V. V/right, 447. Humbard v. Humbard, 7. Humbert v. Trinity Church, 118, 467. Hume V. Pocock, 420, 431, 542, 562. Humphreys v. Hollis, 74, 160. Hunt V. Barfield, 684. V. Freeman, 483. V. Hunt, 54, 145, 458. V. Livermore, 614. V. Moore, 417. V. Roberts, 352. V. Rousmanier, 3, 345, 474. V. Saunders, 554. V. Silk, 686, 695. V. Turner, 341. Hunter v. Bales, 608, 742. V. Bilyou, 502, 514. V. Daniel, 119, 610, 696, 697. V. Griffin, 455. V. Hopkins, 686. V. O'Neil, 553. Hunter (Matter of), 267, 270, 552. Huntingdon v. Knox, 113. Huntington v. Rogers, 224, 518. Hurley v. Brown, 319, 322, 541. Hurst V. Hurst, 521. Huss V. Morris, 499. Hussey t'. Hornepayne, 174, 177. Huston V. Cantril, 467. V. Noble, 514. Hutchins v. Lee, 342. Hutchinson v. Hutchinson, 130. V. McNutt, 25o, 594, 669. Hutton V. Duey, 53, 54. V. Edgerton, 469. V. Williams, 330, 335. Hyde v. Cooper, 199, 313, 314. V. Skinner, 47, 591. V. Tanner, 516. V. Watts, 694. V. Wrench, 172. Hylton V. Briscoe, 224. V. Hylton, 289. Ide V. Gray, 439. Iggulden V. May, 46. Iglehart v. Gibson, 667. V. Vail, 7, 668. Ilchester, ex parte, 685. Indiana (State of) v. Woram, 301. Indianapolis, etc., R.R. Co. v. Tyng,. 416. Inge V. Lippingwell, 685. IngersoU v. Horton, 650. Ingles V. Patterson, 382. Ingram v. Thorp, 431, 432. Inman v. Griswold, 680. Ins. Co. V. Union Canal Co., 660. Irick V. Fulton, 489, 744. Jrnham (Lord) v. Child, 100, 484, 503,. . 515- Irvin V. Bleaksley, 600. V. Gregoi-y, 117, 604, 608, 611. %). Thompson, 331. Irving V. Dekay, 472. Isenberg v. East India House Co., 140.. Ives V. Armstrong, 319, 664. V. Hazard, 321, 323. V. Metcalfe, 63. Ivory V. Murphy, 323. Izard V. Izard, 52. V. May's Landing Water Power- Co., 732. V. Middleton, 394. Jackson v. Ashton, 7, 8. V. Cator, 484. V. Corlear, 379. V. Cutwright, 366. V. Dyeling, 379. V. Edwards, 656, 724. V. Gray, 454. V. Jackson, 194. V. Kniffen, 472. V. Lever, 258. V. Ligon, 568, 571, 576, 631^ 710, 715. V. Lowe, 311. V. McCoy, 89. V. Moore, 349. V. Petrie, 65, 66. V. Pierce, 355. V. Sedgwick, 683. V. Sill, 472. V. Town, 462. V. Van Busen, 326. Jackson's Case, 103. Jacobs V. Locke, 86, 535, 701, 754. V. Peterborough, etc., R R. Co.^ 326, 352. V. Sale, 167. Jacox V. Clarke, 257. Jalabert v. Chandos (Duke of), 103. James v. Lichfield, 715. V. Morgan, 449. [The figures refer to the pages.] CASES CITED. XXXI James v. Patten, 327. V. State Bank, 402, 483. Jameson v. Stein, 181, 422. January v. Martin, 347. Jaques v. Miller, 314, 738. V. Vigo County, 690. Jaquith v. Hudson, 29. Jarman v. Davis, 545. Jarvis v. Duke, 402. Jay V. Richardson, 147. JetTerj's v. Fairs, 252. Jeffreys v. Jeffreys, 247, 548. Jenkins v. Eldredge, 338, 348. V. Fahey, 565. V. Fritz, 481. V. Hogg, 335. V. Parkinson, 25. V. Pye, 289. Jennings v. Broughton, 402, 416, 424, 430, 434, 443- V. Brown, 285. Jervis v. Smith, 373, 734. Jervoise v. Northumberland (Duke of), 547. Job V. Banister, 622. Johns V. Norris, 654. Johnson v. Bowden, 382. V. Brooks, 37.5, 327, 329. V. Conger, 60. V. Covvn, 455. V. Craig, 204. V. Dodge, 308, 311, 450. V. Glancy, 376, 734. V. Gummins, 93. V. Hanson, 354. V. Hopkins, 613, 669. V. Hubbell, 52, 217. V. Johnson, 57, 185, 199, 527, 704. V. King, 178. V. Legard, 87, 217, 271, 455. V. McGruder, 382. V. Rickett, 14, 19. V. Ronald, 317. V. Shrewsbury & Birmingham R.R. Co., 40,69, 102, 264, 276. V. Smart, 137. V. Smith, 51. V. Trinity Church Soc, 320. V. Watson, 395. V. Wyatt, 737. V. Wygant, 609, 614. Johnston v. Fessler, 172, 174. V. Hubbell, 350, 351. V. Johnston, 350, 380, 387. V. Mitchell, 660. Johnstone v. Hall, 146. Joice V. Taylor, 417. Jones V. Alley, 576. Jones V, Blalock, 62. V. Bolles, 442. V. Boston Mills Corp., 60. V. Boyd, 577, 608. V. Caswell, 281, 463, 465. V. Clifford, 491. V. Evans, 274. V. Gardiner, 553, 609. V. Green, 29, 30. V. Heavens, 29. V. Hill, 457. V. How, 105, 168. V. Jones, 41, 51, 121, 741, V. Lees, 229. V. Littledale, in, 112. V. Lock, 340. V. Lynde, 96. V. M'Dougal, 341. V. Mertin, 105. V. Moore, 513. V. Mudd, 743. V. Munroe, 477. V. Neale, 690. V. Newhall, 12. V. Noble, 260, 309, 636. V. North, 45. V. Pease, 378. V. Petaluma (City of), 610. V, Peterman, 369, 376. V. Robbins 597, 642. V. Roberts, 96, 576. V. Roe, 48. V. ^hackleford, 712. V. Taylor, 250. V. Waite, 54, 284. Jordan v. Fay, 204. V. Jones, 164. V. Sawkins, 100, 504, 688. V. Volkenning, 458. Jordon v. Deaton, 204, 576, Joseph V. Holt, 308. Josey V. Rogers, 127. Joslyn V. Taylor, 554. Joynes v. Statham, 208, 475, 484, 508. Judd V. Mosely, 86. Judge V. Wilkins, 237, 449. Judson V. Wass, 553. Justice V. Croft, 19. %>. Lang, 270, 325, 327. Juzan V. Toulmin, 240, 409, 424, 481. Kane v. Hood, 608. Karker v. Haverly, 602. Kauffman's Appeal, 18, 117. Kay V. Watson, 351. Kearney v. Taylor, 465. Keating v. Price, 685. Kechnie v. Sterling, 746. Keegan v. Williams, 676, 726. XXXll CASES CITED. [The figures refer to the pages.] Keisselbrack 7/. Living-ston, 510, 514. Keith V. Purvis. 343. Kekewich v. Manning, 340. Kell V. Nokes, 137. Keller v. Fisher, 642, 645. V. Lewis, 31, 668. Kelley v. Sheldon, 405. V. Webster, 350. Kellog- V. Lavender, 600. Kellums v. Richardson, 369. Kelly V. Dee, 14. V. Stanberry, 382. V. Walsh, 251. Kelso V. Kelly, 60. Kelson v. Kelson, 462. Kemble v. Kean, 149, 206. Kemeys v. Proctor, 335. Kemp V. Humphreys, 635. V. Sober, 146. Kempshall v. Stone, 731, 734. Kendall v. Almy, 199. Kennedy 7/. Gouveia, in. V. Kennedy, 342, 441. V. Lee, 188. V. Umbaugh, 493. V. Ware, 247. V. Wolfolk, 567. Kenny v. Waxham, 18. Kensington (Lord) v. Phillips, 186. Kent 7A Carcaud, 539, 717. v. Freehold Land & Brickmaking Co., 409, 438. V. Ricards, 136. Kenworthy v. Schofield, 335, 336. Kercheval v. Swope, 642. Kerr v. Day, 269. V. Purdy, 268, 610, 617. Kester v. Rockel, 742. Ketchum v. Buffalo (City of), 293. V. Catlin, 481. V. Stout, 167, 540, 719. Keyton v. Branford, 492. Kidder 7/. Barr, 350, 356, 381. V. Chamberlin, 237. V. Hunt, 354. Kimball v. Tooke, 609. Kimberley v. Jennings, 143, 148, 224, 225. Kimbrough v. Curtis, 82. V. Lane, 287. Kimpton v. Eve, 142. Kinard 7/. Hiers, 348. Kindley v. Gray, 561. Kine v. Balfe, 374, 399. King V. Baldwin, 289. V. Bardeau, 189, 537, 700, 707, 708. V. Hamilton, 224, 227, 421, 483, 563. 659, 669, 755. V. Hamlet, 235. King V. Hanna, 394. V. Knaj-)]), 411, 536, 576. V. Morford, 7. V. Ruckman, 188, 205, 604, 630, 674. 712. V, Thompson, 383, 387, 748, 750. V. Trice, 1 18. V. Whitely, 588. V. Wilcox, 461. V. Wilson, 198, 640, 674, 679, 706. 715- V. Wood, 189, 320. Kinkead v. Shrene, 609. Kintrea v. Preston, 197. Kip V. Norton, 379. Kirby v. Harrison, 606, 659. Kirk V. Bromley Union, 25, 362. Kirksey v. Fike, 62. 7/. Kirksey, 398. Kisler v. Kisler, 339. Kitchen v. Coffin, 576. %K Herring, 203. Kite V. Lumpkin, 481. Klyce V. Broyles, 612. KnatchbuU v. Grueber, 623, 705, 712. Knickerbocker v. Harris, 375, 612. Knight V. Bunn, 493. V. Cooley, 173. V. Crockford, 325, 328, 614. 7/. Majoribanks, 244. Knobb V. Lindsay, 242. Knoll %!. Harvey, 363, 375. Knollys v. Alcock, 103. Knott V. Stephens, 88, 96, 638. Knowles v. Haughton, 43, 275. V. McCamly, 92, 164. Knowles' Petition, 298. Knye v. Moore, 285. Koen V. White, 661, 669. Kostenbader v. Spotts, 548, Kraft V. De Forest, 522. Kuckenbeiser 7'. Beckert, 514. Kuelkamp v. Hidding, 426. Kusel V. W^atson, 186. Kyle V. Frost, 12. V. Kavanaugh, 197. V. Roberts, 330. Lacey, ex parte, 271. Lacon v. Mertins, 2>i 398. Lacon 71. Waters, 269. Laffan v. Nagle, 269. Lafferty -u. Jelly, 680. Laidlaw 7'. Organ, 414, 441 Laight V. Pell, 226, 420. Laing tj. McKee, 344. Laird v. Smith, 674. Lamare v. Dixon, 407. 356, 365. 397, [The figures refer to the pages.] CASES CITED. XXXlll Lamb v. Buckmiller, 512. V. Harris, 481. Lammot v. Bowl)-, 478. Lampman v. Cochran, 29. Lancaster v. De Trafford, 195. 7). Dolan, 462. Lancaster & Carlisle R.R. Co. v. North- western R.R. Co., 148, 149, 298. Lane v. Debenham, 696. V. McLaughlin, 179. V. Neilson, 353. V. Newdigate, 38, 140. V. Ready, 131. V. Shackford, 354. Laner v. Lee, 519. Lanesborough (Lady) v. Ockshott, 685. Lang ?7. McLaughlin, 311. Langdon v. Keith, 483. V. Woolfolk, 89. Langford v. Pitt, 565. Langton v. Hughes, 288. Lanier v. Wyman, 493. Laning v. Cole, 327, 595. Lanning v. Tompkins, 600. Lansdowne v. Lansdowne, 479. Lantz V. Fry, 363. Lanz V. McLaughlin, 366. Lapham v. Whipple, 395. Larios v. Gurety, 6, 25. Larison v. Barb, 18. V. Burt, 648. Larkin v. Rosse (Lord), 711. Larkins v. Biddle, 476, 492. V. Rhodes, 339. Larmon v. Jordan, 172. Lassen -v. Mitchell, 688. Lassence v. Tierney, 391. Lathrop v. Hoyt, 349. Latimer v. Aylesbury & Buckingham R.R. Co., 134. Lattin v. McCarty, 512. Lauderdale v. Hallock, 514. Lauer v. Lee, 686. Laughter's Case, 168. Laurens v. Lucas, 555. Lavender v. Thomas, 78. Laverty v. Hall, 652. V. Moore, 16, 103, 132, 616, 725. Lavette v. Sage, 216. Law V. Grant, 419. V. Henry, 389. Lawder -v. Blachford, 229. Lawe V. Hyde, 513. Lawley v. Hooper, 442. Lawrence v. Ball, 601. V. Beaubien, 480. 7/. Dole, 553. V. Dorsey, 248. V. Lav/rence, 659. Lawrence v. Staigg, 496. V. Taylor, 331, 332, 333. Lawrence's Case, 436. Lawrenson v. Butler, 267, 272, 273, 520, 714. Lawson v. McKenzie, 610. Lawton v. Campion, 56, 476. Lay V. Huber, 541. Laythoarp v. Bryant, 308, 323. Leach v. Forbes, 25, 252. Leader v. Moody, 6. Leake v. Morris, 338, 366. Lear v. Chouteau, 209, 247. Leavenworth (City of) v. Rankin, 294. Leavitt v. Blatchford, 285. V. Palmer, 280, 483. Lechmere v. Brazier, 566, 627. Le Couteulx v, Buffalo (City of), 293. Lee V. Durett, 97. V. Fox, 429. V. Howe, 707. V. Kirby, 227, 229, 238, 243. V. Lee, 249, 378. Leeper v. Lyon, 86. Lees V. Nuttall, in, 329. Lefevre v. Lefevre, 386. Lefforge v. West, 31. Leg V. Huber, 543. Legal V. Miller, 505. Legard v. Johnson, 54. Leger v. Bonnaffe, 489. Legge V. Croker, 416. Leiard v. Smith, 607. Leigh (Lord) ii. Ashburton (Lord), 81. V. Crump, 7, 224, 421, 535. V. Huber, 561. Leitensdorfer 2/. Delphy, 513. Leith V. Irvine, 286. Leland's Appeal, 164. Lemayne v. Stanley, 326. Lennard v. Robinson, in. Lennon v. Napper, 47. Leominster Canal Co. v. Shrewsbury & Hereford R.R. Co., no, 297. Leonard v. Austin, 492. V. Bates, 608. Lerned v. Wannemacher, 310. Leroux v. Brown, 65, 306. Lesesne v. Witte, 565. Leslie v. Tompson, 488, 719. Lester v. Jewett, 309, 608. V. Kinne, 357. V. Lester, 243, 375. Letcher v. Crosby, 369. Lett V. Brown, 608. Leuty V. Hillas, 481. Levy V. Brush, 74, 349. V. Burgess, 683. V. Coke, 179, 180. V. Lindo, 137. XXXIV CASES CITED. [The figures refer to the pages.] Levvers v. Shaftesbury (Earl oQ, 6, 737. Lewin v. Guest, 529. Lewis V. Bond, 619. V. Davison, 276. V. Herndon, 549. V. Lech mere (Lord), 17, 245, 633- V. Madison, 103. V. Madocks, 52. V. McLemore, 417. V. Reichy, 201. V. Woods, 656. V. Yale, 734. Leyland v. liling-vvorth, 416. Licett V. Stafford & Uttoxeter R.R. Co., 134- Lies V. Stub, 484. Light V. Light, 478. Lightfoot 2/. Heron, 104, 159, 212, 216. Light Street Bridge Co. ■y. Bannon, 119. Lillie V. Legh, 738. Limondson v. Sweed, 398. Lincoln v. Arcedeckne, 550. V. Wright, 338, Linderman v. Rinker, 5. Lindsay v. Lynch, 353, 361, 396. V. Springer, 379. Lindsey (Earl oij v. Gt. Northern R.R. Co., 105, 109, 166, 356. V. Veasy, 402, 419. Lines v. Darden, 520. Lingen v. Simpson, 42. Linkous v. Cooper, 550. Linton v. Potts, 627, 645. Lippincott v. Stokes, 520. Lisk V. Sherman, 52. Lister v. Foxcroft, 350. Little V. O'Brien, 296, 302. V. Paddleford, 553. V. Pearson, 320. V. Poole, 285. V. Thurston, 690, 728. Littlefield v. Tinsley, 545, 550. Littlewort v. Davis, 295, 296. Livermore v. Aldrich, 339. Livesey v. Livesey, 129. Livingston v. Livingston, 360. V. Painter, 14. V. Peru Iron Co., 412, 414. V. Potts, 681. V. Tompkins, 596. Lloyd V. Coliett, 137, 626, 627, 636, 655, 660. V. Lloyd, 588. V. Loaring, 23. V. London, Chatham & Dover R.R. Co., 147. V. Rippingda'e, 627. V. Spillet, 339. V, Wheatley, 19, 199. Lobdell V. Lobdell, 199, 388. Lockerson v. Stiilweil, 199. Locomotive &: Express Co. v. Erie R.R, Co., 687. Logan V. Bond, 122. V. McChord, 576, 672. V. McGinnis, 52. V. Weinholt, 52, 105. Lomax v. Ripley, 443. Lombard v. Chicago Sinai Congrega- tion, 567, 744, 747- London &; Birmingham R.R. Co. v. Winter, 356, 506, 507, 510, 517, 585- (City of) V. Mitford, 633. (City of) V. Nash, 33, 37, 68, 231, 276, 730. (City of) V. Southgate, 33, 34. Long ?y. Bowring, 28, 8[. V. Brown, 163. V. Colston, 5. V. Duncan, 199, 362. V. Fletcher, 711. V. Hartwell, 602. V. Warren, 435. Longworth v. Hunt, 467. V. Taylor, 562, 631, 647, 657. Lord 7/. Stephens, 554, 582, 707, 746. V. Underdunck, 88, 191, 373. Lorentz v. Lorentz, 243. Louder's Appeal, 5. Lounsberry v. Locander, 196, 716. Love V. Cobb, 247, 567. V. Lea, 429. V. Sortwell, 579. Lovell V. Hicks, 408, 419. Lovelock V. Franklyn, 610. Low V. Heck, 1 24. V. Innes, 148. V. Treadwell, 219, 229, 653, 685. Lowe V. Bryant, 392. V. Peers, 283. Lowell ?/. Boston & Lowell R.R. Co., 278. Lowes V. Lush, 556, 590. Lowndes v. Chisholm, 478. V. Lane, 434. Lowry v. Buffington, 7. V. Mehaffy, 323. V. Muldron, 545. V. Spear, 48. Lowther 11. Lowther, 23, 242, 245, 329. Lucas V. Burnett, 224. V. Commerford, 33. V. Hickman, 155. V. James, 177, 178, 326, 538. Luckett V. Williamson, 347, 352, 565, 570, 752. Lucy, ex parte, 477. [The figures refer to the pages. J CASES CITED. XXXV Ludlow V. Cooper, 659. V. Simoncl, 751. Lukey zi. Higgs, 226, 235. V. O'Donnel, 243. Lumley v. Wagner, 138, 150, 225. Lupin V. Marie, 410. Luse V, Dietz, 261. Lyddal v. Weston, 546, 555. Lyde v. Mynn, 26, 50. Lyman v. Robinson, 170, 318. V. United Ins. Co., 493, 502, 510. 514. V. Utica Ins. Co., 484. Lynch v. Brockhoff, 402. V. Jennings, 605, 608. V. Lynch, 342. Lyne v. Bank of Kentucky, 462. Lynes v. Hayden, 188, 204. Lyon V. Huntington Bank, 447. V. King, 394. V. Richmond, 471, 472, 480. Lyons v. Blenkin, 78, Lysney v. Selby, 434. Lytton V. Gt. Northern R.R. Co., 36, 531. Macclesfield (Earl of) v. Davis, 22, 23. Macdonough v. Gaynor, 155. Macgregor v. Official Manager of the Dover & Deal R.R. Co., 297. Macliier %>. Morse, 453. Mack V. Patchin, 214, 743. Mackay ri. Douglass, 461. Macknet v. Macknet, 478. Mackreth v. Marlar, 626. V. Symmons, 27. Maclean v. Dunn, 332. Macnamara 2/. Arthur, 137. V. Williams, 82, in. Macomb v. Wright, 334. Mactier v. Frith, 179, 180. Maddox 7/. Rovve, 17. V. Simmons, 237. Madeira v. Hopkins, 199. Madeley v. Booth, 711. Madison v. Chum, 230. Madox V. McQuean, 185, 659. Magee 2/. Atkinson, in, 112. Magennis v. Fallon, 422, 557, 675, 705, 715, 716, 747. Magniac v. Thomson, 116. Magoffin V. Holt, 634, 645. Magram %>. Archbold, 31. Maguire 7/. Smock, 282. Mahana v. Blunt, 375. Mahon v. Baker, 372. Main v. Melbourn, 365. Makepeace v. Harvard College, 680. Malcolm 7/. Andrews, 156. Maiden v. Menill, 518. Maleverer v. Redshavv, 285. Malins v. Bro \n, 368. 7'. Freeman, 159, 484, 485, 487. Mallan v. May, 148. Mallory 7/. Mallory, 122. Malmesbury v. Malniesbury, 492. Mann v. Betterley, 238. V. Dunn, 663. V. Palmer, 692. V. Pearson, 536. V. Stephens, 148. Manners (Lord) v. Johnson, 138, Manning, ex parte, 744. Manser v. Back, 333, 485, 488, 510. Mansfield v. Childerhouse, 429. V. Mansfield, 53. Manson v. Brimfield Manf. Co., 544. Manz V. Beekman Iron Co., 492. Marble Co. v. Ripley, 7, 12, 71, 220, 264, 575. 623. Marburg v. Cole, 576. Marcy v. Marcy, 395. Margetson v. Wright, 436. Margraf 7/. Muir, 214, 224, 444, 743. Margram v. Archbold, 218. Marksbury v. Taylor, 281. Marlatt v. Warwick, 344. Marlow v. Smith, 546. Marsh v. P^alker, 418. V. Fulton County, 300. V. Hyde, 310. V. Milligan, 20, 163, 200. V. Packer, 60. V. Wyckoff, 543, 709. Marshall v. Bait. & Ohio R.R. Co., 218. 7/. Broadhurst, 1 1 5. V. Caldwell, 167, 604, 745. V. CoUett, 471. "u. Colman, 42. V. Sladden, in. Marston v. Humphrey, 659. Martin v. M'Biyde, 118. V. Cotter, 409, 432, 555, 700. 7/. Drinkwaler, 472. V. Hamlin, 472. V. Martin, 342. V. M'Cord, 387. 7/. Merritt, 613, 721. V. Mitchell, 94, 160, 163, 164, 210, 270. V. Nutkin, 145. V. Pycroft, z;75, 508, 585. 7/. Terrell, 287. 7/. Tidwell, 5. Martyn v. Hind, ^T. Marvm v. Bennett, 489, 540, 718, 720. Mason v. Armitage, 470, 486. V. Blair, 355, 382. V. Corder, 711. XXXVl CASES CITED. [The figures refer to the pages.] Mason v. Crosby, 435. V. Foster, 126. V. Franklin, 80, 84. V. Muncaster, 495. V. Owens, 666. V. Payne, 636. V. Wallace, 381, 649. Massey?^. Mcilwaine, 382. Massie v. Watts, 65. Masson 7v. Bovet, 467. V. Swan, 748. Masson's Appeal, 727, 733. Masterson v. Pullen, 443. Masterton 7k Beers, 415. Mastin v. Halley, 33, 190, 206, 264. V. Marlow, 48. Mather v. Scoles, 609. Mathews v. Gillis, 642, 673. V. Patterson, 569, 712. V. Skinker, 292. Matteson v. Scoheld, 202, 317. Mattingly 7/. Speak, 497. Mattocks V. Young, 617. Mauglin v. Perry, 270, 604, 634. Maulden v. Armstead, 96. Maunsell v. W^hite, 183. Mavor v. Pyne, 254. Maw V. Topham, 217, 274. Maxwell v. Kennedy, 118. V. Pittinger, 429, 617. May V. Armstrong, 127. V. Fenton, 120. Mayer v. Adrian, 314, 337, 544. V. U. S., 172. Maynard v. Brown, 261. Mayor and City Council of Bait. v. Williams, 462. Mayor of London v. Southgate, 6, 734. Mayor of Norwich v. Norfolk R.R. Co., 163, 292, 293, 294, 297. Mays V. Swope, 565. McAbee v. Randall, 127. McAlpine v. Swilt, 518. McAuley v. Bellinger, 282. McBride v. Wilkinson, 520. McBryde v. Weekes, 435, 468, 633, 634, 642. McBurney v. Wellman, 342. McCallan v. Mortimer, 2S0. McCann v. Jones, 48. V. Letcher, 499. V. South, etc., R.R. Co., 69. McCarger v. Rood, 385. McCarthy 7/. Goold, loi. McCarty v. Kyle, 224, 247. V. Myers, 85. McClane v. White, 116. McClartey v. Gokey, 602, 646. McClellan v. Darrah, 383, 469, 659. McClintock v. Laing, 199, 653. McCloskey v. McCormick, 514. McClure v. Ashby, 468. V. King, 636. V. McClure, 53, 389. V. Purcell, 653. McClurg's Appeal, 44. McComas v. P^asley, 7, 600, 601. McComb V. Wright, 331. McConnell v. Brillhart, 308, 325, 331, 712. McCorkle v. Brown, 358, 581. McCormick v. Malin, 241, 450. McCotter v. Lawrence, 78, 628. McCoy V. Hughes, 384. McCracken v. San Francisco (City of), 303- McCracken v. Wright, 48. McCray v. McCray, 389. McCrea v. Purmort, 270, 323. M'Creight v. Foster, 107. McCrocklin v. McCrocklin, 53. McCue 7J. Johnston, 363. McCulloch V. Cowher, 341. V. Dawson, 608, 627. V. Eagle Ins. Co., 180. V. Gregory, 549, 559, 696. McDaniels v. Whitney, 529. McDermid v. McGregor, 668, 678. McDonald v. Crockett, 751. • V. Kimbrell, 604. V. Kneeland, 680. V. May, 348. V. Starkey, 499, 514. V. Trafton, 425. V. Walker, 550. McElderry v. Shirley, 483. McFarland v. Hall, 369. McFarson's Appeal, 308, 323. McFerran v. Taylor, 482, 534. McGalliard v. Aikin, 662. McGowan v. Remington, 21. McGowen v. West, 398. McGregor v. McGregor, 66. McGuire v. Stevens, 204, 318. M'Hoon V. Wilkerson, 610. McHugh V. W^ells, 599. Mclntire v. Bowden, 329. V. Hughes, 247. V. Johnson, 55, 682. Mclntyre tj. Trustees of Union College,, 118. M'lver V. Kyger, 435. McKay v. Carrington, 198, 654. V. Simpson, 493. M'Kean v. Read, 568, 576, 704. McKee v. Beall, 74. V. Phillips, 369. McKellip V. Mcllhenny. 386. McKennan v. Phillips, 53. McKenzie t. Hesketh, 714. [The figures refer to the pages.] CASES CITED. XXXVll McKewan v. Sanderson, 460. McKibbin v. Brown, 185, 199. McKimball v. Robinson, 453. McKinley v. Watkins, 172. McKinney v. Andrews, 288, 436. V. Pope, 453. V. Watts, 576. McKleroy v. Tulane, 123, 612. McKnight v. Dunlop, 378. V. Robbins, 97. McLane v. Elmer, 2. McLaughlin v. Shields, 646. McLaurie v. Barnes, 668. McLees v. Hale, 394. M'Mahon v. Spangler, 514. McMillin v. McMillin, 492, 668. McMorris v. Crawford, 16, 96, 726. McMuUen ik Vanzant, 22. McMurray v. St. Louis, etc., Co., 471. McMurtrie v. Bennett, 7, 199, 260. McNaughten v. Partridge, 476. M'Niel V. Baird, 413. McNeil V. Magee, 60, 606. McPherson v. Kingsbaker, 461. McQueen v. Chouteau, 734. V. Farquhar, 443, 554, 559, 706. McShane v. Hazlehurst, 402. McTyer ■z/. Steele, 113. McWhorter v. McMahan, 7, 74, 224, 324, 331, 563. McWilliams v. Long, 668. V. Neely, 48. Meach v. Perry, 1 29. V. Stone, 355. Mead v. Davison, 39. V. Fox, 553. V. Parker, 188, 322. V. Randolph, 252. Meadows v. Meadows, 319, 335. V. Tanner, 463, 464. Meason v. Kaine, 41, 261. Mechanics' Bank of Alexandria v. Lynn, 219, 231, 483, 587.- Mechanics' Bank of Alexandria v, Se- ton, 20. Medbury v. Watson, 431. Medwin v. Sandham, 520. Meek v. Periy, 429. V. Walthall, 167. Meeker v. Meeker, 7. Mehl V. Von der Wulbeke, 199. Mailers v. Devonshire (Duke of), 471. Mellish V. Motteux, 437, 540. V. Robertson, 472. Memphis & Charleston R.R. Co. v. Scruggs, 60, 63. Mendenhall v. Klinck, 594. V. Treadvvay, 455. Mercer v. Stark, 247. Merchants' Bank v. Mclntyre, 481. V. Spaulding, 288. Merchants' Trading Co. v. Banner, 38. Mercier v. Mercier, 49, 56, 57. Meredith v. Macoss, 331. V. Wynn, 586. Merethen v. Andrews, 355, 369. Merewether v. Shaw, 424. Merkle v. Wehrheim, 347. Merritt v. Brown, 209, 257, 344, 63i> 659. V. Clason, 309, 331, 335. Mestaer v. Gillespie, 338, 520, 528. Metcalf 2/. Putnam, 346, 446. Metcalfe v. Pulvertorft, 728. Meux V. Humphries, 281. V. Maltby, 85, 103. Mexborough (Earl of) v. Bovver, 133, 142, Meyer v. Amidon, 420. V. Barker, 1 1 1 , 112, Meyers v. Forbes, 195. V. Watson, 407. Meynell v. Surtees, 13, 102, 171, 174, 176, 194. Mialhi v. Lassabe, 366, 367. Michael v. Michael, 444. Michaud v. Girod, 468. Michigan (State of) v. Phoenix Bank, 458. Micklethwaite %'. Nightingale, 504. Middlekauff 7/. Barrick, 13. Middlesex (Society of) v. Davis, 295. Middleton v. Greenwood, 737, 738. Midland Gt. Western Co. of Ireland v. Johnson, 471. Mildmay v. Hungerford, 471, To"]. Miles V. Miles, 381. V. Stevens, 489. Milkman v. Ordway, 736, 752. Millard v. Ramsdell, 204. Miller v. Ball, 384. V. Barber, 424. V. Bear, 95, 670. V. Campbell, 188, 204. V. Chetwood, 717. V. Gotten, 116, 199, 341, 362. V. Henderson, 88, 446. V. HenlaU; 659. V. Hower, 369. V. Miller, 426, 642, 656. V. New York, 674. V. Whittier, 95, 96. Milligan 7/. Cooke, 772, 536, 571, 701, 716, 723. V. Mitchell, 140, Milliken v. Milliken, 160. Mills V. Haywood, 647, 660. V. Hunt, 378. V, Lockwood, 514. XXXVlll CASES CITED. [The figures refer to the pages.] Mills V. Metcalf, 117. V. Van Voorhis, 567, 582. Milne v. Gratrix, 60. Milnes 7a Gery, 10, 58, 59, 192, Milward v. Thanet (Earl of), 627, 653, 659. Mims V. Lockett, 381, 382, 383. Minard v. Mead, 113, 333. Minchin v. Nann, 746. Miner v. Bradley, 528. V. Medbury, 437. Miners' Ditch Co. v. Zellenback, 291. Minet v. Leman, 546. Minns v. Morse, 398. Minor, ex parte, 255. Minturn v. Baylis, 199, 362. V. Seymour, 7. Miranville v. Silverthorne, 375. Mitchell V. Bunch, 155. V. Denson, 520. V. Harris, 58. V. Hazen, 553. V. Long, 661, 669. V. Nicholson, 483. V. Reynolds, 148, 281. V. Rome R.R. Co., 295. V. Shell, 86. V. Smith, 285, 286. V. Steward, 599. V. Wilson, 636. Mitford V. Mitford, 589. Mittelholzer v. Fullerton, 276. Mi.x V. Balduc, 664, 673. V. Beach, 125, 599, 604. v. Hotchkiss, 1 18. Moale V. Buchanan, 356, 513. Modisett v. Johnson, 209, 240, 450. Moens v. Heyvvorth, 420. Moffat V. Winslovv, 468. Moliere v. Pennsylv. Fire Ins. Co., 494, Molineux's Case, 4. Molloy 2'. Eag-an, 518. Moncrief 7/. Goldsborough, 464. Money v. Jorden, 181, 183. Monk V. Huskisson, 743, 744. Monro v. Taylor, 187, 402, 539, 631, 658, 685. Monroe v. Cutter, 403. Montacute (Viscountess) v. Maxwell, 183, 390. Montague v. Flockton, 152. Montefiori v. Montefiori, 181. Montgomery v. McEwen, 513. V. Morris, 199. V. Reilly, 182. Monument National Bank v. Globe Works, 300. Moodie v. Reid, 520. Moody V. Smilli, 331. Moon V. Wilkerson, 82. ' Mooney v. Miller, 435. Moore v. Adams, 277. V. Burrows, 120. V. Crofton, 247, 692. •57. Edwards, 129, 130. V. Fitzrandolph, 265. V. Fitzwater, 55. V. Foley, 47. V. Higby, 125, 373. V. Marrable, 678. V. Murrah, 86. V. Pierson, 388. V. Platte County, 29. %>. Prance, 444. V. Small, 355, 373. TJ. Usher, 204. Moorehouse v. Coh'in, 52. Moote V. Scriven, 383, 644. Moran v. McLarty, 473, Morange v. Morris, 610. More V. Bonnett, 526. V. Ellis, 54. V. Morecomb, 169. V. Skidmore, 576. Morehead v. Hunt, 464. Morehouse 7/. Colvin, 183. Moreland v. Atchinson, 478. V. Lemasters, 382. Morey v. Farmers' Loan & Trust Co., 118, 601. Morgan v. Bergen, 331, 656, 659. V. Bliss, 439. V. Herrick, 615, 629. V. Hoilord, 270. V. Horseman, 285. V. Milman, 193, 357, 358, 368. V. Morgan, 86, 87, 541. V. Rhodes, 96, 99. V. Scott, 229, 450, 657. 7/. Smith, 353. V. Stearns, 614, 617. Morganthau v. White, 212, 483. Morin v. Martz, 323. Morison v. Tumour, 325. Morley v. Cook, 137, 695, 696. Moroney v. Townsend, 564. Morphett v. Jones, 536, 360, 371, 373. Morrell v. Cooper, 130. Morrill v. Aden, 254. Morris v. Coleman, 45, 142, 144. V. Debenham, 549. V. Hoyt, 89, 103, 610, 670. V. Lewis, 247. V. McNeil, 577. V. Philliber, 449. V. Stephenson, 164. Morris Canal Co. v. Einmett, 540, 718. Morris & Essex R.R. Co. v. Sussex R.R. Co.. 295. Morrison v. Arnold, 86, 559. [The figures refer to the pages.] CASES CITED. XXXIX Morrison v. Barrow, 546. V. Lods, 439. V. McLeod, 159,429, V. Peay, 227, 385. V. Rossignol, 199. V. Wurtz, 256. Morrow v. Lawrence, 91, 118. Morse v. Faulkner, 51. V. Martin, 520. V. Merest, 59, 191, 338, 658, 675. Morss V. Elmendorf, 490, 536, 702, 707, 731. 734. 735- Mortimer v. Bell, 463, 464. V. Capper, 246, 258. V. Cornwell, 331. V. Orchard, 396. V. Pritchard, 478. V. Shorhall, 515. Mortlock V. Buller, 208, 217, 219, 272, 536, 701, 708. Morton v. Dean, 310, 336. Mosby V. Wall, 483. Mosdel V. Middleton, 285. Mosely v. Virgin, 33, 34. Moss V. Anderson, 321. V. Bainbrigge, 75. V. Barton, 692. V. Culver, 380, 381. V. Hanson, 565. Mott V. Mott, 281. V. U. S. Trust Co., 295. Mount V. Waite, 279. Mowatt V. Blake, 443. Moxhay v. Inderwick, 226, 235. Moyses v. Little, 96. Mulhallen v. Marum, 429, MulHns V. Trinder, 545, 546. Mumford v. Gething, 45, 148. V. Whitney, 386. Mummery v. Paul, 43. Munch V. Shabel, 8. Mundorff z'. Howard, 341, 360. V. Kilbourn, 52. Mundy v. Joliffe, 355, 370, 381, 396, 397. 599. 625. Munford v. Wdson, 680. Munsell v. Loree, 199. Munson v. Hallowell, 468. Munt V. Shrewsbury & Chester R.R. Co., 299. Murdock 7'. Anderson, 12, 322. Murly V. McDermott, 188. Murphy v. Hubert, 343. V. Lockwood, 671. V. McVicker, 16. V. Rooney, 499, Murray v. Ballou, 726. V. Dake, 448. V. Harway, 686. V. Jayne, 375. Murray v. Mann, 423. V. Parker, 492, 515. Mussel V. Cooke, 307. Mussleman's Appeal, 565. Musson V. Fales, 284. Muston V. Bradshaw, 82. Mutual Life & Fire Ins. Co. v. McKel- way, 296. Myer v. Myer, 1 57. Myers v. De Mier, 66. V. Forbes, 184. V. Watson, 421, 504, 579. Nagle V. Baylor, 159, 216, 487. V. Newton, 733, 734. Nairne v. Prowse, 27. Nantes v. Corrock, 94. Napier 7/. Darlington, 269, 536, 701. Natchez (City of) v. Vandervelde, 379. National Bank v. Taylor, 292. National Exchange Co. v. Drew, 418, 419. 423- National P. B. Building Soc, in re, 301. Naylor v. Winch, 477. Neal V. Speigle, 449. Neale v. Mackenzie, 217, 272, 568, 590. V. Neale, 377, 392. Neatherly v. Ripley, 355, 366, 382. Needham v. Kirkman, 105. V. Smith, 105. Neill V. Morley, 160. Nelson v. Bridges, 703. V. Carrington, 468, 719. V. Dunn, 127. V. Hagerstown Bank, 668. V. Wood, 445. V. Worrall, 339. Nelthorpe T'. Holgate, 79, 98, in, 536, 571, 698, 700, 702, 714. Nesbit V. Moore, 16, 657. Nesbitt V. Meyer, 259. Nesham v. Selby, 317. Neufville v. Stuart, 178. Neves v. Scott, 588. Neville v. Merchants' Ins. Co., 185. V. Wilkinson, 181,406. Nevius V. Dunlap, 484, 493. New Barbadoes Toll Bridge Co. v. Vreeland, 103, 121, 650. Newberry v. James, 43, 68, 143. New Brunswick, etc., R.R. Co. v. Cony- beare, 416, 418, 425. New Brunswick, etc., Co. v. Mugger- idge, 25, 42. Newcomb v. Clarke, 113. Newcomer v. Kline, 492. Newham v. May, 704, 731. Newman v. Meek, 136, 237, 245, 450. xl CASES CITED. [The figures refer to the pages.] Newman?/. Newman, 285. T. Rogers, 631. Newmarch v. Brandling, 141. Newsom 7j. Bufferlow, 496. V. Davis, 203. Newton v. Brownson, 66. V. Swazey, 86, 130, 381, 399. New Vork Centr. Ins. Co. v. National Protection Ins. Co., 329. New York Firemen's Ins. Co. v. Ely, 296. New York Firemen's Ins. Co. v. Stur- ges, 296. New York Ice Co. v. Northwestern Ins. Co., 512. Nichol V. Ridley, 335. NichoU V. Jones, 94. Nichols V. Johnson, 308, 336. V. Nichols, 453. V. Pinner, 409. V. Stratton, 45. V. Williams, 195, 206. Nicholson v. Knapp, 135. v. Mifflin, 331. Nickels v. Hancock, 63, 230, 523. Nickleson v. Wilson, 287. Nicol V. Carr, 541. Nicoll V. N. Y. & Erie R.R. Co., 594. Nims V. Vaughn, 230. Noah V. Webb, 281. Noale V. Buchanan, 312. Noble V. Gookins, 536, 540, 718. Nobles V. Bates, 29. Noel V. Horton, 425. Nokes V. Kilmorey (Lord), 633, 640, 642. Noonan v, Lee, 8. V. Orton, 599. Norfleet v. Southall, 191, 192. Norris v. Jackson, 738. V. Knox, 654. North V. Ansell, 588. North British R.R. Co. v. Tod, 580. North V. Forest, 359. Northrup v. Boone, 384. V. Northrup, 609, 614. Norton v. Herron, iii. V. Mallory, 445. V. Mascall, 62. V. Preston, 354. V. Simmes, 285. V. White, 89. Nott V. Ricard, 641. Nouaille v. Flight, 716. Noyes z/. Marsh, 12, 58, 117. Nunn V. Truscott, 621. Nurse v. Seymour (Lord), 580. Nutbrown v. Thornton, 21, 24. Nye V. Moseley, 285. V. Taggart, 355. Oakes v. Turquand, 408. Oakley v. Ballard, 688. Oberlander v. Spiess, 420. Obernyce v. Ohertz, 544. O'Brien v. Pentz, 8, 199, 260, 576. O'Connor v. Spaight, 684. Odell v. Montross, 366. V. Morin, 199, 208. Odessa Tramways Co. v. Mendel, 452. Odineal v. Barry, 282, O'Donnell v. Leeman, 314. O'Fallon t. Kennerly, 653. Ogden V. Fossick, 40. V. Ogden, 26. Ogilvie V. Foljambe, 1S8, 198, 308, 325. V. Ogilvie, 52. O'Herlihy v. Hedges, 100, 350, 355, 366, 374. 383- Ohio V. Baum, 185, 260. O'Kane 7/. Kiser, 608, 627. Okill V. Whittaker, 482. Old Colony R.R. Co. v. Evans, 18, 270, 323- 491- Oldfield 7^. Round, 534, 555. Oliver t/. Croswell, 165, 728. 1'. Hallam, 744. V. Rowland, 447. Olney v. Eaton, 65. Onions v. Cohen, 264, 572. Ontario Bank v. Root, 398. Ord V. Johnston, 13, 247, 264. v. Noel, 218. Oregon Steam Navigation Co. v. Win- sor, 281, 675. O'Reilly v. Thompson, 383, 393. Oriental Steam Co. v. Briggs, 25. Orman v. Merrill, 581. Orme v. Broughton, 695. V. McPherson, 155. Ormond (Lord) v. Anderson, 195, 267. Ormrod v. Huth, 420. Ormsby v. Hunton, 247. O'Rourke 7'. Percival, 274. Orr TJ. Brown, 12. V. Irwin, 66. V. Zimmerman, 31. Osbaldiston v. Askew, 710. V. Simpson, 287. Osborne v. Bremar, 569, 662, 742. V. Phelps, 363, 510. V. Williams, 279. Osgood V. Franklin, 240, 244, 449. V. Strode, 76. Osipee Manf. Co. v. Canney, 299. Osmond v. Fitzroy, 160. Osterhout v. Shoem.aker, 560. Oswald V. McGehee, 417. Otway V. Braithwaite, 270. Outenhouse v. Burleson, 382. Overbee v. Thrasher, 63. [The figures refer to the pages.] CASES CITED. xli Overton v. Tracy, 345. Owen V. Davies, 160, 745. V, Frink, 84. V. Owen, 256. V. Thomas, 187, 188. Owings V. Baldwin, 360, 541. V. Hall, 118. V. Morgan, 205. Owing's Case, 444. Oxford Iron Co. v. Spradley, 295. Oxwick z'. Brockett, 518. Pacific R.R. Co. v. Seely, 282, 296. Padwick v. Piatt, 79. Page V. Adams, 695. V. Bent, 423. V. Broom, 700. V. Greeley, 119, 198, 553. Pain V. Coombs, 371, 377, 599, 624. Paine v. Hutchinson, 24, 25. V. Meller, 256, 258, 746, 747, Painter v. Newby, 698, 716. Palmer v. Ford, 31. V. Graham, 22. V. Lawrence, 301. V. Richardson, 375. V. Scott, 179, 267. V. Temple, 198. Parham v. Parham, 500. V. Randolph, 437, 704. Paris Chocolate Co. v. Crystal Palace Co., 134, 148, 194, 208, 693. Parish v. Koons, 204, 323, 331. V. Oldham, 12. V. Wheeler, 300. Park V. Chadwick, 446. V. Johnson, 123, 132, 404, 517. Parke v. Leewright, 366. Parken v. Whitby, 62, 277, 507, Parker v. Barker, 686. V. Bergen, 527. V. Bloxam, 468. V. Bodley, 318. V. Carter, ']'] . V. Frith, 633. V. Garrison, 20. V. McAllister, 606. V. Palmer, 220. V. Parmele, 553, 609, 614. V. Sergeant, 179. V. Smith. 393, 394. V. Taswell, 202. V. Wells, 366. Parkham v. McCrary, 468. Parkhurst t/. Van Cortlandt, 267, 314, 363, 384, 731. Parkin v. Thorold, 628, 636, 638, 640, 678. Parkinson v. Lee, 538. Parks V. Boston, 298. V. Chadwick, 447. z>. Wilson, 27. Parrill v. McKinley, 380. Parsell v. Stryker, 52. Parsons v. Gilbert, 564. V. Thompson, 277, 282. Paschall v. Hinderer, 652. V. Passmore, 596. Passmore v. Moore, 578. Patchin v. Doolittle, 298. Paton V. Brebner, 716. V. Rogers, 743. V. Stewart, 279. Patrick v. Horton, 204. Patten v. Moore, 89. Patterson v. Bloomer, 479. V. Copeland, 382, 385. V. Cunningham, 354. V. Horn, 349. V, Long, 84, 538, 716. V. Martz, 217, 232, 664. V. Yeaton, 353. Patton V. Develin, 309. V. M'Clure, 352. V. Taylor, 560. Paul V. Meservey, 681. Paxton V. Newton, 33, 38. Payne v. Banner, 633. V. Graves, 618, 659. V. Meller, 219. Payson v. West, 354. Peacock 7/. Pen son, 80, 81, 234, 40! 580, 700. V. Tompkins, 120. Peake, ex parte, 27, 221. Pearce v. Madison, 296. V. Watts, 131, 204, 205. Pearett v. Shawbhut, 409. Pearis v. Covilland, 637 Pearne 7'. Lisle, 23. Pearson v. Darrington, 5. V. East, 125, 373. Peck V. Brighton, 664. Peckham v. Barker, 356, 383. Pedens v. Owens, 719. Peele, ex parte, 74. Peeler 7/. Levy, 12, 163, 714, 722, 732. Pegg V. Wisden, 641. Pegler v. White, 234. Peifer v. Landis, 369. Peirce v. Corf, 336. Pellecat %>. Angell, 288. Peltz V. Eichele, 281. Pember v. Mathews, 338, 50S. Pemberton v. Johnson, 93. Pembroke v. Thorpe, 35, 230, 393. Pendleton v. Dalton, 491. 7>. Galloway, 467, Penfield v. Penfield, 257, 594. xlii CASES CITED. [The figures refer to the pages.] Pengall (Lord) 7'. Ross, 366, 384. Penn v. Baltimore (Lord), 66. V. Hayward, 66. Pennell v, Wilson, 493. Penniman v. Hartshorn, 270, 325. V. Rodman, 61. Pennock v. Ela, 642, 657. V. Freeman, 88. Pennock's Appeal, 463. Pennsylv, etc., Co. v. Dandridge, 292, 296. Pennsyh'. Co. 7/. Delaware Co., 11. Penny v. Martin, 481. Pentz V. Stanton, 333. People V. Trustees of Geneva College, 296. V. Utica Ins. Co., 296. Perkins v. Dickinson, 499. V. Ede, 709. V. Hadsell, 268, 323, 382, 652. V. McGavock, 414, V. Thornton, 588. V. Washington Ins. Co., 39. V. Wright, 7, 231, 421, 518. Perry v. Pearson, 507. V. Truefit, 440. Persse v. Persse, 50. Peru Iron Co., ex parte, 295. Peru V. Turner, 174. Peter v. Compton, 394. V. Nicolls, 558. Peters v. Delaplaine, 7, 628, 654, 669. V. Florence, 471. V. Jones, 88. V. McKeon, 743. V. Mortimer, 453. V. Smith, 459. V. Westbrough (Inhabs. oi), 394. Peterson v. Dickey, 694. V. Grover, 470, 482. Peto V. Brighton, etc., R.R. Co., 143. Petray v. Howell, 357. Petre v. Duncombe, 81. (Lord) V. Eastern Counties R.R. Co., 109. Petrick v. Ashcroft, 362, V. Petrick, 360. Petrie v. Wright, 443. Pettes V. Bank of Whitehall, 475. Pettibone v. Stevens, 444. Pettus V. Smith, 468. Petty V. Malier, 512. Peyton v. Rose, 5 1 3. Pfiffner v. Stillwater & St. Paul R.R, Co., 382. Phalen v. Clark, 442, 468. Phelps V. 111. Centr. R.R. Co., 607, 635 V. Seely, 686. Philadelphia, etc., R.R. Co. v. Lehigh etc., Co., 165, 191. Phillimore v. Barry, 326. Phillips V. Berger, 19, 56. V. Buckingham (Duke of), 100. V. Edwards, 94. V. Gorham, 512. V. Graves, 93. V. Hollister, 417. V. Homfray, 412. V. Hooker, 321. V. Medbury, 283. V. Moore, 429. V. Soule, 581. V. Stauch, 150, 161, 710. V. Sylvester, 707, 744. V. Thompson, 362, 363, 731. Phillipson v. Gibbon, 562. Philpot 7'. Walcot, 390. Philpott V. Elliott, 345, 510, 517. Phippin V. Stickney, 465, 466. Phipps V. Buckman, 424. V. Child, 583. Phoenix Ins. Co. v. Gumee, 519. Phyfe V. Wardell, 12, 18, 47, 364, 446. Physician's Case, TJ. Piatt V. Hubbel, 379. V. Oliver, 466. Pickering v. Dowson, 540. V. Ely (Bishop of), 40, 265. V. Pickering, 7, 56, 654. Picket V. Johns, 54. Pickett V. Loggon, 454. V. Merchants' National Bank, 195, 492. Picot V. Douglass, 693. Pidding v. How, 440. Pidgin V. Cram, 53. Pierce v. Catron, 363. V. Dorr, 680. V. Paine, 395. V. W^oodward, 281. Piercy 7/. Adams, 122. Piers V. Lambert, 709. Pigg V. Corder, 7, 200, 660. Pike V. Morey, 369. V. Vigers, 433, 443. Pilcher v. Smith, 748. Pillow V. Pillow, 467, 653. Pinckard v. Pinckard, 371. Pincke v. Curteis, 18, 137, 618, 628, 675, 6-]-]. Pinckney %>. Hagadom, 338, 645. Pingree v. Coffin, 65, 754. Pinkett v. Wright, 42. Pinnock v. Clough, 349. Pipkin V. Allen, 686. V. James, 319, 541. Pitcaim v. Ogbourne, 484, 503, 512, 515- Pitcher v. Hennessey, 489. Pitt V. Smith, 216. [The figures refer to the pages.] CASES CITED. xliii Pittinger 7/. Pittinger, 216. Pitts V. Cable, 117. Planque v. Cuesnon, 514. Plant V. Gunn, 288. Piatt V. Maples, 249. V. Oliver, 281. Playford v. Playford, 235, 244. Pleasants v. Ross, 521, Plummer v. Keppler, 7, 402. V. Owens, 320. Poag V. Sandifer, 374. Podmore v. Gunning, 52, 338. Poe V. Duck, 685. Point Street Iron Works v. Simmons, 494. Poland V. O'Connor, 374. Pole V. Somers (Lord), 472. Polhill V. Walter, 424, 439. Pollak V. Gregory, 287. Pollard V. Clayton, 10, 21, 40, 143, 633, 660. Pollard V. Rogers, 413. Pomeroy v. Drury, 653. Ponce •y. McWhorter, 355.' Poole V. Hill, 610. V. Middleton, 25. V. Shergold, 527, 570, 706, 746.^ Pooley V. Budd, 19, 22. Poore V. Price, 442. Poorman v. Kilgore, 387. Pope V. Garland, 196, 415, 438, 534, 538. V. Henry, 386. V. Roots, 258. V. Wilson, 458. Popham V. Bampfeild, 598. Poplett V. Stockdale, 285. Portarlington (Lord) v. Soulby, 65. Port Clinton R.R. Co. v. Cleveland & Toledo R.R. Co., 71. Porter?/. Dougherty, 635. V. Noyes, 553. V. Spencer, 156. V. Vaughn, 681. V. Worthington, 66. Portland, etc., R.R. Co. v. Grand Trunk R.R. Co., 583. Portman v. Mill, 555. Portmore (Lord) v. Morris, 484, 502. Portmore (Earl of) v. Taylor, 235, Port Royal R.R. Co. v. Hammond, 67. Post V. Leet, 492. Potter V. Commrs. of Revenue, 44. V. Dougherty, 232. V. Duffield, 190. V. Ellice, 85. V. Everett, 237, 238. V. Jacobs, 382, 384, 677. V. Potter, 397. V. Saunders, 89, 103, 180, 542. Potter V. Tuttle, 197, 597, 635. Potts V. Thames Haven Co., 90. V. Whitehead, 179, 184, 187, 617, 628. Powell V. Central Plank Road Co., 116. V. Conant, 545, 550. V. Dillon, 309. Powell Duffryn Steam Coal Co. v. Taff Vale R.R. Co., 69. Powell V. Elliot, 420, 432, 707. V. Knowler, 280, 287. V, Lloyd, 133, 590. V. Lovegrove, 356. V. Martyr, 742. V. Monson & Brimfield Manf. Co., 553. V. Smith, 472. V. Young, 89. Powelton Coal Co. v. McShane, 430. Power's Appeal, 48. Powers V. Bridges, 614. V. Hale, 243. V. Mayo, 422. Powney v. Blomberg, 286. Prater 7/. Miller, 7, 191, 208. Pratt V. Adams, 275. V. Brett, 142. V. Carroll, 421, 654, 662. V. Eby, 550. V. Law, 219, 631, 701, 731, 752. 7/. Morrow, 687. V. Thornton, 289. Pray v. Burbank, 286. Preble v. Boghurst, 31, 228. Prendergast -u. Eyre, 706. V. Turton, 633. Prentice v. Achorn, 159, 216, 429, V. Betteley, 631. Prescott V. Truman, 544. Preston v. Liverpool, Manchester & Newcastle R.R. Co., 109, no. Preston v. Preston, 572, 668. V. Whitcomb, 554. Prewitt V. Jenkins, 1 17. Price V. Assheton, 183, 197, 590, 693. V. Berrington, 116. V. Coombs, 623. V. Corp. of Penzance, 36. V. Durin, 336, 338. V. Dyer, 441, 473, 503, 504, 505, 685, 688, 707. V. Gaskins, 650. V. Griffith, 189, 526. V. Lea, 378. V. Macaulay, 420, 437. V. McGown, 681. V. Strange. 551. V. Winston, 56. Primm v. Barton, 645, Prince v. Griffin, 635. xliv CASES CITED. [The figures refer to the pages.] ^ Prince of Wales Assurance Co. v. Palmer, 443. Pringle v. Samuel, 430. Printup V. Mitchell, 362. Pritcharcl v. Ovey, 186. V. Todd, 645, 695. Proby V. Lander, 520. Propert v. Parker, 325. Prosser •J'. Edmonds, loi. V. Watts, 557. Prothero v. Phelps, 137, 703, 732. Prothro v. Smith, 614, 640, 678. Providence (City of) v. Miller, in. Provost 7/. Rebman, 501. Pryer v. Tribble, 58. Pryse v. Cambrian R.R. Co., 192. Pugh V. Chesseldine, 499, 553. V. Good, 369. Pujol V. McKinlay, 522. Pullen V. Ready, 56, 471, Pulliam V. Owen, 7. Pulsford V. Richards, 417, 422. Pulvertoft V. Pulvertoft, "jd, 462. Pumpelly v. Phelps, 214, 723. Purcell V. Miner, 357. Purinton v. Northern 111. R.R. Co., 203. Pusey V. Desbouvrie, 410, 477. V. Pusey, 23. Putnam v. Ritchie, 749. Puttmann v. Haltey, 203, 351. Pyke V. Northwood, 134. V. Pyke, 588. V. Williams, 371. Pym V. Blackburn, 486. V. Campbell, 685. Pyrke v. Waddingham, 6, 548, 549, 551. Ouackenbush v. Ehle, 394. Queen v. Sadler's Co., 422. Quick V. Stuyvesant, 483. Quimby v. Vanderbilt, 296. Quinn v. Roath, 7, 347, 403, 642. Quivey v. Baker, 573. Radcliffe ?'. Warrington, 421, 595, 628, 640. V. Wightman, 521. Rader %>. Neal, 629. Radford v. Willis, 557. Railton v. Mathews, 410. Raines v. Calloway, 497. Rake v. Pope, 395. Ramsey v. Brailsford, 675, 740. Ramsbottom v. Gosden, 403, 506, 517. V. Parker, 454. Ramsden v. Hirst, 716. V. Dyson, 419. V. Hylton, 477, 588. Ramsey v. Listen, 369. Randal v. Randal, 507. Randall v. Hall, 580. V. Latham, 37. • V. Morgan, 182. '' V. Van Vechten, 331, 333. Ranelagh (Lord) v. Melton, 634. Ranger 7/. Gt. Western, 31, 419. Rankin v. Huskisson, 140, 147. V. Maxwell, 167. V. Mortimere, 479. V. Simpson, 376. Rapp V. Latham, 419. Rathbun v. Rathbun, 356, 360. Rawdon v. Blatcliford, 413. V. Shadweli, 287, 453. Rawlins v. Burgis, 257. V. Wickham, 402, 421, 438. Rawson v. Johnson, 608. Rayner v. Grote, 99. V. Julian, 83. V. Stone, 38, 68. V. Wilson, 402. Raynes v. Wyse, 157. Raynor v. Linthorne, 329. Read v. Power, 544. Reade v. Armstrong, 492. V. Livingston, 461. Reading v. Price, 436. Ready v. Noakes, 245. Rearich v. Swinehart, 445, 447. Rector v. Price, 568, 629. Redding v. Wilkes, 390, 393. Reddish v. Miller, 655. Redmond v. Dickerson, 12. Reed v. Beazley, 53. ; V. Breeden, 636. V, Jones, 644. V. Noe, 568, 576, 704. V. Norris, 329. V. Reeve, 287. V. Rudman, 224. V. Vannorsdale, TJ. V. Vidal, 37. V. Warner, 329. Rees V. Dacre, 46. Reese v. Board of Police of Lee County,. 85. 252. V. Reese, 199, 209, 260, 363. Silver Mining Co., In re, 437. V, Wyman, 417. Reeve v. Strong, 349. Reeves v. Kimball, 588. V. Pye, 358. Regent's Canal Co. 7/. Ware, 591, 742^ Reid 7/. Shergold, 520. Reilly v. Miami Exporting Co., 136. V. Smith, 722. Reinicker v. Smith, 421, 428. Religious Soc. v. Stone, 282. [The figures refer to the pages.] CASES CITED. xlv Remington v. Irwin, 606. Remmington v. Kelley, 659. Remsen v. Hay, 290. Renkin v. Hill, 162. Renshaw v. Gans, 448. Rerick v. Kern, 252, 386. Reservoir Co. v. Chase, 478. Respass ii. McClanahan, 74. Revell V. Hussey, 229, 257, 258. Rex V. Scammonden, 508. Reynell v. Sprye, 278, 403, 416, 420, 438. Reynolds v. Hewitt, 380. V. Nelson, 137, 640, 642, 678. V. O'Neil, 202. V. Vance, 719. V. Waring, 206, 362, 396. Rhea v. Jordan, 375. Rhine v, Robinson, 378. Rhoades v. Castner, 312. Rhodes v. Rhodes, 368, 370, 399. V. Thomas, 686. Rice V. Gove, 333. V. Rawlings, 224, 421 Rich V. Errol, 302. V. Jackson, 403, 509. V. Sydenham, 217. Richards' Appeal, 139. V. Green, 159. V. Mercer, 556. V. Porter, 311. V. Richards, 122. Richardson v. Baker, 659. %>. Brooks, 13. V. Eyton, 58. V. Godwin, 128. V. Linney, 576. V. Smith, 60, 63. Richmond v. Dubuque, etc., R.R. Co., 12, 71, 260, 277, 731. V. Foote, 356. V. Gray, 534, 548, 566, 573, 631. V. Robinson, 92, 636, 721. Ricketts v. Bell, 197, 506. Rider v. Gray, 260, 752. V. Powell, 501. Ridgway v. Gray, 572, 716. V. Underwood, 461. V. Wharton, 129, 130, 195, 309, 310, 314, 315, 316, 330. 332. 333. 338, 647, 658. Ridley v. McNairy, 352, 390, "~ Riesz's Appeal, 721. Rights/. Cuthell, 188. Riley v. Farnsworth, 195. Ring V. Ashworth, 202, 483. Rishton v. Whetmore, 336. Rist V. Hobson, 122, 397. Ritson V. Dodge, 660. Rives V. Rives, 52. Roake v. Kidd, 546. Robb V. Mann, 256. Roberts v. Berry, 638. V. Kelsey, 68. V. Lovejoy, 659. V. Marchant, 86, 87. V. Marston, 196. V. Massey, 742. V. Roberts, 283. V. Rockbottom, 394. V. Swearingen, 615. V. Wyatt, 694. Pvobertson v. Gt. Western R.R. Co., «2. V. Hogsheads, 731. V. Robertson, 378. V. Skelton, 256, 744, 746. Robeson v. Hornbaker, 188, 203. Robinson v. Bland, 302. V. Cathcart, 25. V. Cox, 285. V. Garth, 335. V. Green, 528. V. Kettletas, 48. V. McDonald, 86. V. Page, 441. 507, 508, 685, 686, 688. V. Perry, 48, 96. V. Raynor, 52. V. Robinson, 27, 243. V. Smith, 84. V. Wall, 464. Robson V. Collins, 248, 682. Roby ■z/. Cossit, in, 120, 330, 655. Rochester v. Anderson, 78. Rock River Bank v. Sherwood, 302. Rockwell V. Lawrence, 199, 734. Rodman v. Williams, 441. V. Zilley, 224, 240, 429. Roffey V. Shollcross, 526, 711. Rogers z/. Atkinson, 470, 499. V. Challis, 25, 68, 739. V. Earl, 507. V. Mitchell, 444. ■ : V. Murray, 339, 349. V. Odell, 443, 493. V. Price, 142. V. Rathbun, 286, 453. V. Rogers, 53. V. Salmon, 407. V. Saunders, 7, 14, 270, 324, 576, 631. V. Taylor, 604. V. Trader's Ins. Co., 99. Rolfe V. Peterson, 30. V. Rolfe, 139. Roller t/. Ott, 281. Rondeau v. Wyatt, 355, 398, 399 Roosevelt v. Fulton, 406. xlvi CASES CITED. [The figures refer to the pages. Root V. French, io6. Roper V. Bartholomew, 27, 32. Ropes V. Upton, 44. Rose V. Bates, 345, 463. V. Gal land, 551. 7'. Cuninghame, 269, 314. V. Swann, 663. V. Truax, 282. Rosenthal ?'. Freeburger, 375. Ross V. Baker, 1 88. V. Buchanan, 12. V. Estates Investment Co., 416, 431- V. Hegeman, 339. V. Lincler, 93. V. Mather, 445. V. Parker, 322. V. Tillerton, 468. V. Union Pacific R.R. Co., 33. V. Wilson, 514. Rosse (Earl of) v. Sterling, 691. Rossiter v. Miller, 190. Rostetter v. Grant, 91, 723. Roundtree ■z/. McLean, 19, 199. Routledge v. Grant, 172, 176. Rowan v. Adams, 277. Rowe V. Teed, 130. Rowton V. Rowton, 363. Roy V. Willink, 124. Royle V. Wynne, 5. Rucker v. Cammeyer, 335. V. Levick, 384. Ruckman v. King, 654. Rudd V. Jones, 521. Rudolph V. Covell, 6. Ruffey V. Henderson, 386. Ruffner i'. McConnel, 472, 484. Ruiz V. Norton, 113. Runnels v. Jackson, 642. Russell V. Darwin, 47, V. Jackson, 443. v. Stimson, 245. Rutenberg ii. Main, 323, 399. Rutgers v. Hunter, 47. Rutherford v. Green, 86. V. Haven, 612. Rutland v. Brister, 563. V. Paige, 127. Rutledge v. Smith, 742. Ryan v. Anderson, 97 V. Blunt, 521. V. Daniel, 50. -v. Do.x, 339, 356. Ryno V. Darby, 441, 504, 682. Safford v. Wyckoff, 295. Sage V. McGuire, 378. Sain V. Dulin, 130. Sailors v. Gambriel, 354. Sainsbury ?'. Jones, 730. Sainter v. Ferguson, 6, 33, 695. Sale V. Lambert, 190, 336. Salisbury v. Hatcher, 271, 554. Salkeld v. Vernon, 468. Salmon v. Bennett, 462. Salmon Falls Manf. Co. v. Goddard, 323, 326. Sams 71. Fripp, 324. Samuda 7). Lawford, 38, 738. Samuel v. Wiley, 155. Sanborn v. Flagler, 308, 311. V. Stetson, 443. V. Woodman, 596, 598. Sanders v. Rodway, 54, 145, 147. V. Wagonseller, 363. Sanderson v. Stockdale, 122. Sandford v. Washburn, 494. Sandfoss v. Jones, 278, 343. Sanger v. Wood, 468. Sangnirico v. Benedetti, 150. Sanxter ?7. Foster, 134. Sari 7/. Bourdillon, 188. Sarter v. Gordon, 240, 659. SaterT/. Hill, 381. Satterfield v. Keller, 576. Saunders v. Cramer, 103, 182. V. Richards, 79, 91. V. Simpson, 248. V. Wakefield, 171. Saunderson v. Cockermouth & Work- ington R.R. Co., 35, 202, 207. Saunderson v. Jackson, 311, 326, 328. Savage v. Brocksopp, 597. V. Carroll, 88. V. Foster, 381. V. Murphy, 461. Savery v. King, 468. Savile v. Savile, 239. Savill V. Savill, 589. Saville v. Tancred, 23. Sawyer v, Hovey, 514. V. Mills, 116. V. Sledge, 561. Saxton V. Wheaton, 461. Sayer v. Sayer, 520. Scarborough 71. Arrant, 103. Scarlett v. Hunter, 670. 7t. Stein, 600, 643. Schackell 7'. Rosier, 279. Schiffer 7/. Pruden, 536. Schmeling v. Kriesel, 199. Schmidt v. Gatewood, 348. V. Livingston, 659. Schneider v. Heath, 409, 438, 540. 7'. Norris, 326. Scholfield V. Lockwood, 492. School District v. MacLoon, 382. Schroeder v. Gemeinder, 267. Schroeppel v. Hopper, 18, 87, 674. [The figures refer to the pages.] CASES CITED. XlVll Schuessler v. Hatchett, 742. Schulter v. Bockwinkle, 307. Schumaker v. Sibert, 324. Scofield V. Templer, 449. Scott V. Barker, 663. V. Becher, 135, V. Bilgerry, 19, 707, 734. V. Duffy. 275. V. Duncan, 492. V. Eastern Co. R.R., 378. V. Fields, 634. V. Freeland, 429. V. Hanson, 431, 706, V. Langstaffe, 100. V. Nesbitt, 286. "^" V. Rayment, 41, 739. V. Scott, 181. V. Shepherd, 576. V. Shiner, 439. V. Tyler, 283. V. Whitlow, 7. Scotten V. State, 279. Seager 2/. Burns, 78, 81, 103, 121, 266. Seaman v. Vawdrey, 538, 555, 700. Seagrave v. Seagrave, 55. Sears v. Boston (City of), 192. V. Shafer, 289. Seaton v. Mapp, 633, 639. Seaward v. Willock, 610. Secombe v. Steele, 81, 585. Secrest v. McKenna, 576, 587. Seely z/. Howard, 612. Segur V. Tingley, 482. Seidenbender v. Charles, 275, 286. Selby V. Geines, 514. V. Selby, 325, 326. Selden v. James, 744. V. Myers, 444. Semmes v. Worthington, 357, 398. Septon V. Friltlock, 468. Seton V. Slade, 267, 565, 627, 628, 643. 655, 675. Setter v. Alvey, 281. Seward v. Jackson, 461. Seymour v. Davis, 354. V. Delancey, 7, 8, 224, 239, 545. 563, 564, 649- V. Hazard, 154. V. McDonald, 146. V. Minturn, 55. Shackle v. Baker, 44. Shackleton v. Sutcliffe, 534, 711. Shaddle v. Disborough, 439. Shafer v. Davis, 47 1 . V. Niver, 645. Shakel v. Marlborough, 1 17. Shakspeare, v. Markham, 52, 199. Shand v. Hanley, 461. Shannon 2/. Bradstreet, 133, 159, 357, 520. Shannon v. Taylor, 86. V. White, 468. Shapland v. Smith, 545. Sharp V. Milligan, 331, 647, 677. v. Taylor, 155. V. Teese, 286. V. Trimmer, 615, 654. Shaw V. Fisher, 18, 24, 95, 682. V. Levy, 462. V. Livermore, 165. V. Mackray, 217. V. Nudd, 331. V. Stines, 425. V. Thackray, 103, 159. V. Vincent, 535, 561, 705. Shawmut Bank v. Plattsburgh & Mon- treal R.R. Co., 293. Sheard v. Venables, 408. Shearer v. Ranger, 544. Shedda v. Sawyer, 455. Sheets v. Andrews, 609. Sheffield Canal Co. v. Sheffield R.R. Co., 179. Sheffield v. Collier, 386. Sheffield Gas Consumers Co. v. Harri- son, 41. Sheffield v. Mulgrave (Lord), 546, Sheid V. Stamps, 199, 320. Shelburne 7/. Inchiquin, 514. Shellhammer v. Ashbaugh, 387. Shelly V. Nash, 236. Shelthar v. Gregory, 53. Shelton v. Church, 204. Shenk v. Mingle, 285. Shepherd v. Bevin, 237, 244, 389. V. Shepherd, 247, 363. V. Walker, 648. Sherburne v. Fuller, 354. V. Shaw, 336. Sherman v. Wright, 429, 484. Sherwin v. Shakspeare, 744, 745. Sherwood v. Vanderburg, 560. Shields v. Trammell, 338, 542. Shinn v. Bodine, 527. Shipp V. Swann, 496. Shirley z>. Davis, 486. V. Shirley, 270, 323. V. Spencer, 382. ' V. Stratton, 214, 540. Shively v. Welch, 514. Shober v. Dutton, 550. Shockley v. Davis, 26. ' I Shore "u. Wilson, 189. Short v. Price, 247. Shortall v. Mitchell, 659, 665. Shotwell V. Murray, 471. Shovel V. Bogan, 719. Showman v. Harford, 645. V. Miller, 495. Shreck v. Pierce, 542, 552. ' xlviii CASES CITED. [The figures refer to the pages.] Shrewsbury & Birmingham R.R. Co. V. London & Northwestern R.R. Co., 148, 219, 225, 277, 295, 298. Shrewsbury & Birmingham R.R. Co. V. Stour Valley R.R. Co., 233. Shrewsbury & Brighton R.R. Co. v. London & Northwestern R.R. Co., 658. Shriver v. Seiss, 199. Shropshire v. Brown, 363. Shuffleton v. Jenkins, 636. Siboni ?'. Kirkman, 114. Sichel V. Mosenthal. 68. Sidebotham v. Barrington, 564. Siebel v. Mosenthal, 25. Silver 7/. Campbell, 117. Silver Lake Bank v. North, 300, 301. Simmonds v. Swaine, 167. Simmons v. Cornelius, 365. 7>. Hill, 369, 383. 7'. Spruill, 321. V. Worth, 489. Simon v. Motives, 334. Simplot V. Simplot, 689. Simpson v. Breckenridge, 321. V. Denison, 299. V. Simpson, 53, 54. 7>. Vaughn, 507. Sims V. Ferrill, 418. V. McEwen, 590, 731. Sinard v. Patterson, 686. Singer Co. v. Union Co., 138, 139. Sissons V. Divon, 276. Sites V. Keller, 366. Sitton V. Shipp, 375. Sivoly V. Scott, 608. Skee V. Coxson, 60. Skillman v. Teeple, 477. Skinner v. Dayton, 29. V. M'bouall, 131, 179, 316, 399. V. Morris Canal & Banking Co., 15. V. White, 29. Skipwith V. Strother, 287. Skipworth v. Dodd, 353. Slason V. Wright, 127. Slater v. Maxwell, 463, 465. V. Smith, 323. Slaughter ta Gerson, 435. V. Harris, 576. V. Nash, 78. Slauson v. Watkins, 16. S\ttv. Bradford, 138. Slice V. Derrick, 379. Slim V. Croucher, 442. Slocum V. Despard, 609, 614. V. Marsh, 289. Sloman v. Walter, 32. Sloper 77. Fish, 545, 546, 550. Small V. Attwood, 540. Small 7^ Owings, 130, 398. 7'. Proctor, 560. Smith V. Addleman, 686. V. Allen, 483. V. Ankrim, 206. V. Arnold, 313, 329, 334. V. Aykwell, 283. V. Babcock, 435. V. Beatty, 414. V. Bowen, 1 59. V. Brailsford, 130. V. Bromley, 279. V. Burnham, 339. V. Cannel, 544. V. Capron, 125, 196. V. Carney, 12. V. Cedar Falls & Minn..R.R.',Co., 693. .• .VJ( V. Clarke, ill, 439, 463. V. Countryman, 435. V. Crandall, 199, 224, '360/363. V. Death, 550. V. Dolman, 744. V. Evans, 326, 719. V. Everett, 402. 7K Finch, 366. Smith & Fleek's Appeal, 268, 323. Smith V. Fly, 707. V. Garland, 271, 557. V. Greeley, 497. V. Greenlee, 465. V. Hampton, 659. V. Harrison, 213, 221, 437. V. Henley, 683. 7'. Hollenback, 549. V. Iverson, 66. V. Jewett, 31. V. Jeyes, 683. V. Johnson, 284. 7/. Jordan, 483. V. Kay, 416, 422, 443. V. Kelly, 96, 161, 532, 734. V, Lawrence, 678. V. Mawhood, 281. V. McDougal, 471. V. Mclver, 442. V. McVeigh, 267, 358. V. Pawson, 443. V. Peters, 63, 64, 193. V. Phillips, 104. V. Reese River Co., 418. V. Richards, 417, 437, 441. V. Robinson, 607. V. Sheeley, 302. V. Sheldon, 81, 91. V. Short, 12. V. Smith, 56, 262, 691. 7/. Stanton, 314. V. Turner, 548. V. Underdunck, 364, 369, 378. [The figures refer to the pages.] CASES CITED. xlix Smith V. Wells, 637. z'. Wheatcroft, 128, 189. V. Wood, 224. Smoot V. Rea, 7, 131, 604, 616, 642, 726, Smout V. Ilbery, 417. Smull V. Jones, 466. Smyth V. McCool, 489. Snedaker v. Moore, 402. Sneesby v. Thorne, 218, 484. Snell V. Jones, 465. V. Mitchell, 7, 8, 489. Snelson v. Franklin, 413. Snider v. Lehnherr, 638. Snodgrass v. Wolf, 576. Snowan v. Harford, 89, 728. Snyder v. May, 498. V. Murdock, 537. V. Neefus, 262. V. Spaulding. 545, 551, 561, 563, 596. Soames v. Edge, 6, 734, 738. Sober 7/. Kemp, 81. Society, etc. v. Butler, 224. Soggins V. Head, 343. Sohier 7/. Williams, 106, 534, 545, 550. Soles V. Hickman, 190, 206, 316. Solinger v. Jewett, 402. Solomon z'. Laing, 299. V. Webster, 174, Somerby v. Buntin, 42, 307. Somerset (Duke of) v. Cookson, 23. Somerville v. Chapman, 46. V. Mackay, 42. Sorrell v. Carpenter, 727. Souch V. Straw-bridge, 396. Soule V. Holdridge, 605. Souter r/. Drake, 197. South Sea Co. v. D'Oliffe, 507. South Wales R.R. Co. v. Wythes, 10, 33. 37, 194. 195, 207, 383, 523, 525. Southampton (Lord) v. Brown, 74. Southby V. Hutt, 573. Southcomb v. Exeter (Bishop of), 653, 658, 675. Southeastern R.R. Co. v. Knott, 265. Southern Ins. Co. v. Cole, 185. Southwell V. Beezley, 526. South worth v. Hopkins, 594. South Yorkshire R.R. & River Dun Co. V. Gt. Northern R.R. Co., 292, 297, 298. Soverbye v. Arden, 51. Sower V. Weaver, 387. Sowle V. Holdridge, 599. V. Sowle, 196. Spackman's Case, 468. Spafford zk Warren, 93. Spain (King of) v. De Machado, in. Spalding v. Hedges, 437. Spangler 7/. Danforth, 190, 321. Sparks v. White, 477. Sparrow z>. Kingman, 560. Spaulding v. Alexander, 657. V. Congelman, 383. Speakman v. P'orepaugh, 550. Spear v. Orendorf, 365, 377. Spedon v. Mayor, etc., of New York^ 295. Spence v. Hogg, 103. Spencer 7'. Field, 113, 333. V. London and Birmingham R.R. Co., 141. V. Topham, 555. Spier •z/. Robinson, 78, 86. Spiller z/. Spiller, 135. Sprigg V. Albin, 663. Springfield v. Harris, 298. Springle v. Shields, 725. Springs v. Harven, 499. V. Sanders, 18. Springwell v. Allen, 540. Sprinkle v. Hayworth, 52. Spunner v. Walsh, 415. Spurgin v. Trant, 422. Spurr V. Benedict, 402. Spurrier T'. Fitzgerald, 122, 130, 397. V. Hancock, 653. Squire v. Campbell, 510, 579. V. Whipple; 354. V. Whitton, 189. Stackpole v. Arnold, 333. Stafford v. Bartholomew, 52. Staines v. Shore, 463. St. Albans (Duke of) v. Shore, 712. Staley v. Murphy, 670. Stampoffski v. Hooper, 92. Stamps V, Bracy, 444. Standifer v. Davis, 614. Stanhope's Case, 468. Stanley v. Chester & Birkenhead R.R. Co., 95, 105, 109, 166, 682. Stanley z'. Robinson, 210. V. Shrewsbury (Earl of), 140. Stansberry v. Pope, 92. Stansbury v. F ringer, 65, 268. Stansfield z/. Johnson, 334. Stanton v. Miller, 205, 240. Stanton zf. Percival, 22. V. Tattersall, 536. Stapilton v. Stapilton, 53, 220, 476. Stapleton v. Stapieton, 56. Stapylton v. Scott, 402, 485, 549. Starens v. Newsome, 72. Starnes v. Allison, 545. State V. Johnson, 282. V. McKay, 5. V. Payson, 55. z'. Reigart, 471. State Treasurer v. Cross, 282. CASES CITED. [The figures refer to the pages.] Stead V. Nelson, 93. Steamboat Co. v. McCutcheon, 301. Steam Navigation Co. v. Weed, 301. Stearns v. Beckham, 7, 162, 210, 238. V. Hubbard, 399. Stebbins v. Eddy, 430, 540, 718, 719. Stedman v. Collett, 509. Stedwell v. Anderson, 492, 496, 498. Steel V. Fife, 317, 615. Steele v. Branch, 643. V. Kinkle, 409, 467. Stent V. Bailis, 258, 442. Stephens v. Cooper, 113. V. Hotham, 245. V. Hudson, 719. V. Olive, 54. V. Trueman, 76. Sterling ^'. Klepsattle, 17. V. Sinnickson, 283. Sternberger v. McGovern, 735. Sterry v. Arden, 462. Stevens v. Adamson, 538. V. Benning, 99. V. Stevens, 386. V. Wheeler, 369. Stevenson v. Buxton, 13, 541, 731. 7'. Dunlap, 576. V. Jackson, 752, V. Maxwell, 612, 740, 742, 745- Steward v. Winters, 146, 148. Stewart v. Alliston, 137, 188, 403, 420. V. Brand, 412. V. Conyngham (Marquis of), 554- V. Gt. Western R.R. Co., 442. V. Metcalf, 583. V. Mumford, 13. V. Raymond, 576, 577. V. Smith, 198, 641. V. Stewart, 371, 476. V. Stokes, 663. Stiff t/. Cassell, 138, 152. Stilson V. Commrs. of Lawrence Co., 282. Stilwell V. Wilkins, 237. Stimpson v. Thomaston Bank, 560. Stine V. Sherk, 514. Stitt V. Little, 420. St. John V. Benedict, 7, 459. V. St. John, 53, 54. St. Joseph R.R. Co. v. Ryan, 282. St, Louis (City of) v. St. Louis Gas- Light Co., 64. St. Mary's Church v. Stockton, 534. Stockbridge Iron Co. v. Hudson Iron Co., 306. Stocker v. Brocklebank, 40. 7'. Partridge, 313. V. Wedderburn, 264, 524, 532. Stockham v. Stockham, 179. Stockley 7'. Stockley, 56, 216, 377, 381, 471. Stockton V. Cook, 715. Stockton «& Hartlepool R.R. Co. v. Leeds, etc., R.R. Co., 148. Stockton V. Union Oil Co., 569, 707, 754. Stoddart v. Hart, 192. V. Smith, 706. Stoddert v. Port Tobacco Parish (Ves- try of), 330. V. Tuck, 199, 357, 363. Stoever v. Rice, 256. Stokes V. Moore, 328. Stone V. Browning 308. V. Buckner, 89, 103, 576. 7/. Denny, 402, 417. ■V. Godfrey, 482. V. Hackett, 340. V. Hale, 499. V. Pratt, 220, 224, 234. Storer v. Gt. Western R.R. Co., 35, 72, 230. Storrs V. Barker, 471. Story V. Conger, 553. 11. Norwich & Worcester R. R. Co., 60. ■u. Windsor (Lord), 725. Stouffer V. Coleman, 27. Stourton (Lord) v. Meers (Sir Thomas), 565. Stoutenburgh v. Tompkins, 224, 445. Stow v. Russell, 635. Stowell V. Robinson, 627. St. Paul Division v. Brown, 8, 16, 125, 614. Strange v, Watson, 578. Stratford v. Bosworth, 171, 195, 315, 317. Stratton v. Davidson, 66. Street v. Rigby, 58. Strehl V. Evers, 307. Stretch v. Schenck, 647. Strickland v. Turner, 254, 259. Strober v. Dutton, 549. Strohmaier v. Zeppenheld, 64. Strong V. Blake, 605. V. Waddeli, 608. Stroud V. Smith, 282. Stuart (Lord James) v. London & North-Western R.R. Co., 19, 207, 230, 265, 593, 653, 659. Studholmes v. Mandell, 168. Stull V. Hurtt, 430, 442, 540, 719. Sturge V. Midland R.R. Co., 208. Sturgis V. Morse, 468. Sturtevant v. Jaques, 545, 548, 554. Stuyvesant v. Davis, 598. V. Mayor, etc., of N. Y., 5, 34. 39. 695. [The figures refer to the pages.] CASES CITED. li Styles V. Wardle, 640. Suber v. Pullin, 689. Suffrain v. McDonald, 268. Sug"gett V. Cason, 395. Sailings v. Sailings, 661, 713. Sullivan v. Fink, 19. Suman v. Springate, 373, 399. Summers v. GrifSths, 450. Sumner v. Parker, 694. Supervisors of Kewaunee Co. v. Decker, 513. Supervisors v. Henneberry, 576. Surcome v. Pinniger, 381, 391. Sutger V. Skiles, 465. Sutherland v. Briggs, 272, 381. Sutphen v. Fowler, 65. Sutton, ex parte, 590. V. Hayden, 52. V. Sutton, 369. Suydam v. Mastin, 106, 107. Swaysland v. Dearsley, 402, 409, 485. Swan V. Drury, 553. Swartz V. Swartz, 386. Swayne v. Lyon, 545, 548, 550. Sweeny v. Miller, 379. V. O'Hara, 7. Sweet V. Jacocks, 342. V. Lee, 395. Sweitzer v. Hammel, 614. Swepson v. Rouse, 97. Swimm v. Bush, 412, 420, 430. Swinfen v. Swinfen, 57. Swinnhart v. Cline, 554. Switzer v. Skiles, 398. Syers v. Brighton Brewery Co., 135. Sykes v. Beadon, 276. Syler v. Eckhart, 388. Syles V. Kirkpatrick, 565. Symondson v. Tweed, 130. Taft V. Kessel, 553. V. Leavitt, 578. Talbert v. Singleton, 495. Talbot V. Bo wen, 130, 331, 398. V. Ford, 148, 224, 226. Tallis V. Tallis, 148, 281. Tallman v. Franklin, 199, 201, 309, 312, 337- V. Green, 435. Talraadge v. North Am. Coal& Trans- portation Co., 293. V. Rensselaer & Saratoga R.R. Co., 395. Tanner v. Peck, 600. V. Smith, 137, 695, 696. Tapp V. Lee, 408. Tarleton v. Vietes, 398. Tarr v. Scott, 260, 266. Tarwater v. Davis, 553. Tasker v. Small, 3, 74, 79, 81. Tate V. Conner, 660. V. Jones, 375. V. Tate, 468. Tatham v. Piatt, 208. Tatum V. Brooker, 374. Tawney t^. Crowther, 310, 315. Tayler v. Waters, 386. Tayloe v. Merchant's Fire Ins. Co., 39. Taylor v. Ashley, 204. V. Ashworth, 402. V. Beech, 390. V. Brown, 640. V. Davis, 143. V. Dening, 326. V. Fleet, 406, 424, 431, 481. V. Gilbertson, 208. V. Gilman, 466. V. James, 247. V. Longworth, 219, 647, 649. V. Luther, 345. V, Merrill, 215, 331, 577, 660. V. Neville, 21. V. Nicholson, 521. V. Patrick, 217. V. Porter, 561, 662. V. Portington, 38, 205, 207. V. Reed, 754. V. Rowland, 120. V. Salmon, 84, in. V. Stibbert, 103. V. Taylor, 289. V. Williams, 200, 554. Taymen v. Mitchell, 417. Teague v. Fowler, 348, Teed v. Johnson, 471. Telfair v. Telfair, 27. Temple v. Johnson, 367. Tenant v. Elliott, 276, 280. Ten Broeck v. Livingston, 581, 708. Tenney v. State Bank, 734, 751. Terrell v. Farrar, 571. Terrett v. Taylor, 495. Territt v. Bartlett, 2 16. Tesson v. Atlantic Mu. Ins. Co., 514. Tevis V. Richardson, 12. Thayer ■z^. Middlesex Fire Ins. Co., 180. V. Torrey, 196. Third Turnpike Co. v. Champney, 298. Thorn V. Bigland, 420. Thomas v. Blackman, 175, 653. V. Brown, 53. V. Cronie, 453. V. Dering, 217, 273, 274, 315, 571. %>. Dickinson, 354. V. Heathorn, 55. V. Kyles, 253. V. McCormick, 448, 510. V. Richmond (City of), 294. lii CASES CITED. [The figures refer to the pages.] Thompson 7^ Blackstone, 218. V. Bruen, 664. V. Carpenter, 571, 708. V. Davenport, 740. V. Davis, 465. V. Deans, 61. V. Dulles, 550, 566, 640, 670. V. Gordon, 394. V. Gould, 354, 537, 746. V. Guyon, 623. V. Lee, 417. V. Myrick, 566, 702. V. Puiteney, 520. V. Scott, 373. V. Smith, 86, 6oo, 612. V. Tod, 224, 365, 399, 403. 674. Thompson Scale Manf. Co. v. Osgood, 484. Thomson v. Thomson, 280. V. White, 447. Thornbury v. Bevill, 45, 172, 174. Thornett v. Haines, 463, 461. Thornton v. Davenport, 459. V. Henry, 382. Thorp V. Pettit, 576. Thurman %>. Shelton, 118. Thurston v. Ludvvig, 682. Thweatt v. McLeod, 402, 424. Thynne v. Glengall (Lord), 360. Tibbatts v. Tibbatts, 690. Tibbs V. Barker, 369. V. Morris, 659. Tibbutt V. Potter, 58. Tierman v. Poor, 14. Tiernan v. Gibney, 195, 207. V. Roland, 16, 561, 564, 653, 709. Tilley v. Thomas, 632, 639. V. Peers, 238. Tilton V. TiUon, 130, 381, 496. Tindell 7/. Conover, 553. Tiuney v. Ashley, 553, 608, 614. Tipping 7/. Eckersley, 138. Tisdale v. Harris, 307. Tobey v. Bristol (County of), 7, 58, 74, 224. Tobey v. Crow, 696. V. Foreman, 127, 600, 613. Tod V. Taft, 493. Todd V. Gee, 25, 730. V. Grove, 243. Tohler v. Folsom, 382. Toll Bridge Co. v. Vreeland, 553. Toller V. Carteret, 65, 66. Toilet V. Toilet, 520. Tolley V. Greene, 394. Tolson V. Sheard, 568. V. Tolson, 519. Tomkinson v. Staight, 362, Tomlin 7/. McChord, 541. Tomlinson v. Blackburn, 99. V. York, 247. Tool Co. V. Morris, 282. Toole V. Medlicott, 381. Torr 7^'. Torr, 189. Tourney v. Sinclair, 54. Towan v. Barrington, 217. Towell V. Heclis, 27. Towle V. Jones, 5. Towner v. Lucas, 446. Town of Petersburg v. Metzker, 296. Townsend v. Champernowne, 88. V. Coales, 41 5. V. Hawkins, 358, V. Houston, 365. V. Hoyle, 298. V. Hubbard, 324. V. Lewis, 654. Townshend (Marquis of) v. Stangroom, 403, 471, 503, 508, 509, 511, 514, 517, 540. Townsly v. Chapin, 94. Tracy v. Talmage, 278, 288. V. Tracy, 382. Traill v. Baring, 420, 443, Trant v. Dwyer, 47, 623. Traphagen v. Burt, 340. Trapnall v. Brown, 338, 398. Traver v. Halstead, 553. Treasurer v. Commercial Co., 24. Trecothick v. Austin, 95. Tremain v. Lining, 552. Trenchard v. Wanley, 443. Trevelyan v. Charter, 468. Trevor v. Wood, 312. Triebert v. Burgess, 26. Trigg V. Read, 471, 482. Trimble v. Elliott, 657. Tripp V. Bishop, 308, 323, 351. V. Childs, 458. Trist V. Child, 282. Tritton v. Foote, 46, 47. Troughton v. Johnston, 464. Troutman v. Gowing, 724. Trovinger v. McBurney, 285. Troy V. Clarke, 636. Trustees of Amherst Academy v. Cowls, 282. Trustees v. Peaslee, 296. Tscheider v. Biddle, 59. Tubman v. Anderson, 358. Tucke V. Bucholz, 428. Tucker v. Clarke, 261. -v. West, 285. V. Wood, 172. Tufnell V. Constable, 248. Tufts V. Plymouth Gold Mining Co., 33°- Tulk V. Moxhay, 105. [The figures refer to the pages.] CASES CITED, liii Tunstall v. Boothby, loi. Turnbull v. Gadsden, 417, 439. Turner t/. Christian, iii. V. Clay, 7, 232. V. Harvey, 219, 411, 414. V. Mariott, 542. V. Wright, 135. Turpin v. Banton, 62. Tuttle V. Moore, 20. Twigg 7/. Fifield, 255. Twining v. Morris, 209. Twiss V. George, 252, 388. Twitchell v. Philadelphia, 331, Twyford v. Wareup, 720. Tyler v. Black, 441. V. McCurdle, 576. Tyson v. Harrington, 444. V. Passmore, 345, 417, 441. V. Robinson, 60. V. Watts, 7, 264. Udell V. Atherton, 418. Underhill v. Allen, 123, 366. V. Harwood, 245, 453. V. Saratoga & Washington R.R. Co., 593. V. Williams, 369. V. Van Cortlandt, 127. Underwood v. Hitchcox, 199. Ungley v. Ungley, 372. Union Coal Co. v. McAdam, 209, 443. Union Mu. Ins. Co. v. Commercial Mu. Ins. Co., 39. University of Vt. v. Buell, 282. Upham V. Hamill, 482. Upperton v. Nicholson, 420, 554. Uppington v. Bullen, 452. U. S. V. La Vengeance, 118. V. Munroe, 516. Usher v. McBratney, 282. V. Livermore, 639. U. S. Trust Co, V. Brady, 295. Utica Ins. Co. v. Bloodgood, 302. V. Cadwell, 302. V. Scott, 302, Vail V. Nelson, 618, 674. Valetti V. White Water Canal Co., 191. Valloton V. Seignett, 38. Van V. Corpe, 438, 507. Van Campen v. Knight, 608, 670, Van Corllandt v. Beekman, 118, • V. Underhill, 521. Van Couver v. Bliss, 545, 546. Vandall v. South San Francisco Dock Co., 293. Vandenanker v. Desbrough, 96, Vandeville v. Riggs, 84. Van Doren v. Robinson, 193, 267, 668. Van Duyne v. Vreeland, 78, 398. Vane v. Barnard (Lord), 544. Van Epps v. Harrison, 432, 7/. Schenectady, 706. V. Van Epps, 289. Van Rennselaer 7/. Penniman, 681. Van Scoten v. Albright, 578. Vansittart v. Vansittart, 53, 160, 264, 523. Vanzant v. New York, 659, 660. Vardeman v. Lawson, 552, Varick v. Edwards, 17, 48, Vassar v. Camp, 180. V. Vassar, 247. Vassault v. Edwards, 267, 268, 271, 323- Vaughan v. Barclay, 17. Vaugn V. Ferris, 682. Vaupell V. Woodward, 399. Vauxhall Bridge Co. v. Spencer (Earl), 109. Veazie v. Williams, 462, 467. Vechten v. Terry, 84.^ Vennum v. Babcock, 576. Vernol v. Vernol, 468. Vernon v. Keyes. 414. V. Stephens, 646. V. Vernon, 76, Vesey v. Doton, 433. V. Elwood, 255. Vicary v. Moore, 682. Vickers v. Hand, 744. ' V. Sisson, 382. V. Vickers, 58. Viele V. Troy & Boston R.R. Co., 60, 240, 567. Vielie v. Osgood, 327. Vigers v. Pike, 244, 421, 435, Vincent v. Berry, 253, 568. Voorhees %>. De Meyer, 475, 491, 548, 570, 675, 701. Voorhees v. Presbyterian Church, 289, Vouillon V. States, 504, 514. Vreeland v. Blauvelt, 550, Wack V. Sorber, 359, 383, Wadsworth v. Manning, 199, Wain V. Warlters, 171. Wainwright v. Read, 719. Wake V. Harrop, 492. Wakeman v. Dalley, 418. V. Rutland (Duchess of), 90. Walker v. Barnes, 163, 716. V. Bartlett, 34. V. Brooks, 96, V. Constable, 334,] 77, Cox, 89, 'v. Douglas?, 609, 666. liv CASES CITED. [The figures refer to the pages.] Walker 7'. Eastern Counties R.R. Co. 1 8, 178, 186. V. Hill, 130, 209, 343, 398. 7'. Jeffrys, 620, 624, 633, 669. V. Locke, 350. V. Perkins, 285. V. Sedgwick, 512. V. Smith, 444. V. Symonds, 443. V. Walker, 338, 429, 508. V. Wheatly, 520. 7>. Wheeler, 598. Wall V. Stubbs, 242, 420, 432. Wallace v. Brown, 349, 360, 455, 504, V. McLaughlin, 562, 574, 597, 709. V. Pidge, 674. Waller v. Armistead, 429. V. Hendon, 331. Walling V. Aiken, 587. Wallis V. Day, 39. V. Long, 684. V. Sarel, 745. Walmesley v. Booth, 289, 469. Walpole (Lord) v. Orford (Lord), 52, 105, 182, 199, 362. Walsh V. Barton, 333, 544. V. Hall, 560. Walter v. Walter, 355. Walters v. Morgan, 407, 414, 421. V. Northern Coal Mining Co., 259. Walton V. Coulson, 200. V. Johnson, 142. V. Wilson, 642. Walworth v. Miles, 659. Wamburzee v. Kennedy, 467. Ward V. Buckingham, 143. V. Byrne, 45, 46, 148. V. Ledbetter, 444. V, Webber, 444. Warden v. Jones, 350, 390, 392. Wardle v. Carter, 236. Ware v. Cowles, 445. V. Grand Junction Water Works Co., 148. Waring T/. Ayers, 188, 203. V. Manchester, Sheffield, and Lincolnshire R.R. Co., 264, 523, 530. V. Waring, 53. Warneford v. Warneford, 326. Warner v. Bennett, 31. V. Daniels, 405, 449, 481, 483. V. White, 168. V. Willington, 171, 172, 176, 179, 189, 311, 332. Warren v. Richmond, 690, 728. Warrick v. Warrick, 518. Washburn v. Dewey, 605, 611. Washburn T'. Fletcher, 114. V. Merrill, 492. Washington v. McGee, 686. Washington University v. Green, 141. Wason z>. Colburn, 340. Waterman v. Meigs, 318. Waters 7/. Brown, 116, 199. V. Howard, 6, 7, 224. V. Howland, 19. V. Travis, 536, 630, 650, 701. Watkins tj. Holman, 65. V. Stockett, 443, 514. V. Watkins, 54, 56, 392, Watson V. Inman, 669. V. Mahan, 87, 253, 273, V. Marston, 6, 226, 421. V. Gates, 78. V. Reid, 659, 678. V. Sawyers, 612. Watt V. Evans, 366, 367. V. Grove, 443, 452. Watts V. Bullas, 507. V. Kinney, 164, 721. V. Waddle, 534, 553- 563. 567, 576, 662. V. Watts, 357. Waul V. Kirkman, 313. Wayne v. Price, 18. Weale v. West Middlesex Water Co., 68. Weart v. Rose, 719. Weatherall v. Geering, loi, 590. Weatherford v. James, 167, 701, 702. Weaver v. Carpenter, 482. V. Carter, 720. Webb V. Alton, etc., Ins. Co., 247. V. Clarke, 30. V. Direct London & Portsmouth. R.R. Co., 18, 19, 229, 593. V. England, 40. Webb (Estate of), 248, 340. V. Hughes, 675, 676. V. Page, 287. V. Plummer, 142. V. Rice, 472. V. Stone, 694. Weber v. Marshall, 355, 663. Webster v. Cecil, 484, 485. V. Dillon, 138, 142, 149. V. Gray, 354. V. Harris, 483. V. Tibbitts, 79, 88. V. Webster, 392. Weddall v. Nixon, 559. Wedgwood v. Adams, 217, 225, 227. I Weed V. Pierce, 459. V. Terry, 357. I Weeks v. Robie, 686. I Weems v. Brewer, 535. { Weldron v. Letson, 502. [The figures refer to the pages.] CASES CITED. Iv Welford v. Beazeley, 308, 327, 328. Weller v. Weyand, 120, 721. Welles V. Yates, 512. Wellesley v. Wellesley, 26, 54. Wells V. Caiman, 537. V. Foster, loi. V. Horton, 394. V. Maxwell, 35, 36, 678. V. Millett, 404, 439. V. Milwaukee, etc., R.R. Co., 179. V. Smith, 592, 593, 606, 612, 615. Welsh V. Bayud, 199, 356, 357, 731. Wemple v. Stewart, 484, 493. Wentworth v. Cock, 115. Wesley v. Thomas, 516. West V. Case, 576. V. Flanagan, 384. West Hickory Mining Assoc, v. Reed, 86. West V. Jones, 402. Westall V. Austin, 565. Westerman ?'. Means, 638. Western v. McDermot, 599. Western R.R. Corp. v. Babcock, 240, 481, 486. Western v. Russell, 243, 267, 270, 272, 311, 325, 570. Westervelt T'. Matheson, 316. Westmeath v. Salisbury, 53. V. Westmeath, 54. West Midland R.R. Co. v. Nixon, 82. Weston V. Foster, 472. Wetherbee v. Bennett, 754. Wethered v. Wethered, 49. Wetherell 7^. Jones, 275. Wetmore v. White, 365. Whaley v. Bagnal, 393. Whalley v. Whalley, 244. Whatman <'. Gibson, 599. Whealley v. Martin, 521. V. Slade, 274, 702. V. Westminster Coal Co., 69, 70. Wheaton v. Hibbard, 279. V. Wheaton, 474. Wheeden v. Fiske, 689. Wheeler v. D'Esterre, 195. V. Home, 745. V. McClain, 577. V. Newton, 92. V. Reynolds, 341, 343, 350, 360. V. Smith, 477. V. Trotter, 41. V. Wheeler, 55. Wheelton v. Hardisty, 419, 422. Whelan v. Sullivan, 204, 318. V. Whelan, 244, 289. Whitaker v. Bond, 232, 247, 279, 464. ?/.Vanschoiack, 192, 441,510. Whitbread v, Brockhurst, 129, 357, 399. Whitbread, ex parte, 130. Whitchurch v. Bevis, 122, 129, 338, 397. 399- White V. Bass, 286, 453. V. Bennett, 641. V. Butcher, 12, 642. V. Corlies, 179. V. Cox, 159, 217. V. Crew, 334. V. Cuddon, 218, 273. 7>. Cuyler, 331. V. Damon, 245. 7'. Dobson, 536, 617, 742. V. Flora, 237, 402, 450. V. Franklin Bank, 302. V. Gilbert, 568. 7>. Hermann, 207, 320. V. Jones, 442. V. McGannon, 243. V. Port Huron, etc., R.R. Co., 31. 510- V. Proctor, 333. V. Schuyler, 24. %>. Thompson, 2^0. V. Watkins, 90, 91, 334, 372. 71. Williams, 489. V. Wilson, 501. Whitehead v. Peck, 4 153. Whitehouse v. Partridge, 156. White's Bank v. Toledo Ins. Co., 293. Whitesides v. Greenlee, 429. Whiting V. Gouhl, 339, 398, 594. Whitlock V. Duffieid, 46, 193. Whitman Mining Co. v. Baker, 293. Whitney Arms Co. 7/. Barlow, 292, 301. Whitney v. McKinney, 95. V. New Haven, 12. V. Peay, 303. V. Stone, 61. Whitridge v. Parkhurst, 360. Whittaker t. Howe, 44, 45, 144. Whittemore v. Farrington, 473, 574, V. Whittemore, 717. Whitworth v. Harris, 42. ble V. Wible, 378. ickenden v. Webster, 146. ckens v. Evans, 148. ekes V. Clarke, 462. ckham v. Wickham, 419. icks V. Hunt, 739. gglesworth v. Steers, 159, 217. ghtman v. Reside, 649. gley V. Blacwal, 167. [Iber V. Paine, 369. Ibur V. Howe, 28 1, 465. Icox V. Bellaers, 546. Icoxon 7'. Calloway, 535, 754. Id 7'. Hillas, 481. Iday 7'. Bonney, 379. Ivi CASES CITED. [The figures refer to the pages. J Wildbahn 7'. Rol)idouN, 122, 130. Wilde 7/. Fort, 627. V. Fox. 350. V. Gibson, 402, 414, 421, 423, 443- Wiley V. Mullins, 121. V. Robert, 187, 320. Wilkes V. Wilkes, 54. Wilkinson 7'. Clements, 33, 266, 584. Wilkinson v. L'Eaugier, 453. ■V. Wilkinson, 351. Wilks V. Davis, 193. Willan V. Willan, 46, 208. Willard v. Tayloe, 7, 8, 74, 219, 269. Willets 7/. Busby, 80. William & Mary College v. Powell, 307. Williams v. Bacon, 310, 334. 7'. Bally. 145, 453, 454. V. Brown, 339. V. Cheney, 622. 71. Chrislee, 1 12. College V. Dantbrth, 282. V. Edwards. 694. V. Evans, 102, 382. V. Hart, 660. 7/. Howard, 23. 7/. Hutchinson, 52. V. Jones, 459. 7'. Jordan, 332. 71. Landman, 376. V. Leach, 78. , • V. Lewis, 306, 650. V. Mattocks, 662. V. McGuire, 457. ; V. Morris, 355, 386. 7A Pope, 379. V. St. George's Harbor Co., 109, 1 10. 7'. Starke, 666. 7'. Stewart, 187. ■v. Vreeland, 456. V. Williams, 43, 44, 46, 146, 175- Williamson 7). Gihon, 284. V. Williamson, 360. V. Wooton, 208. Willingham v. Joyce, 590, 591. Willingsford 7'. Willingsford, 193. Willink V. Vanderveer, 338, 348. Willis V. Astor, 47. 7'. Culvan, 746. V. Forney, 630. V. Henderson, 502. V. Mathews, 388. 7A Willis, 410. Williston i>. Williston, 382, 657. Wills V. Stradling, 360, 365, 373, 381, 383. Wilmer 71. Farris, 378. Wilmot 7/. Wilkinson, 610. Wilson V. Beddard, 326. 7'. Bennett, 550. 7). Brumfield, 576. V. Campbell, 42. V. Carpenter, 290. V. Chicago, etc., R.R. Co., 367. V. Clapham, 745. V. Clark, 323. V. Clements, 174. V. Cox, 712. V. Deen, 574. 7). Fuller, 540. V. Furness R.R., 36. V. Keating, 24. V. Northampton & Banburj' Junction R.R. Co., 6, 199. V. Randall, 539. V. Short, loi, 437, 438. V. Spencer, 279. V. Tappan, 565. V. Torkington, 259. V. Watts, 347. V. West Hartlepool R.R., 264. V. Williams, 272, 571, 700, 702, 716. V. Wilson, 53, 54, 192. Wilton V. Harwood, 342, 352. Wimberly v. Bryen, 369. Winch V. Winchester, 504, 510, 540, 707. Winchester (Bishop of) v. Midhants R.R. Co., 82, 89. Wingate v. Fry, 224. ■V. Hamilton, 713, 721. Wingfield v. Crenshaw, 622. Winn 71. Albert, 398, 399. 7'. Bull, 173. Winne v. Reynolds, 534, 535, 555, 565, 568, 700, 708. Winnington v. Briscoe, 275. Winnipisseogee Manf. Co. 7>. Perley, 515- Winslow V. Dawson, 27. Winston v. Browning, 717. Winter v. Blades, 742. Wintermute v. Snyder, 237, 471, 499. Winton v. Fort, 367. V. Sherman, 612. v. Spring, 686. Wise V. Ray, 325. Wiseman 71. Roper, 48, 66. Wisner 7'. Barnet, 118. Wistar's Appeal, 57. Wiswall V. Hall, 447. V. McGowan, 675, 735. Wiswell V. Teft, 199. Withy 7>. Cottle, 24, 26, 633. 1 Witter 71. Briscoe, 552. Wolfe V. Frost, 356. V. Luyster, 463. [The figures refer to the pages.] CASES CITED. Ivii Wolford V. Heriington, 346. Wolverhampton & Walsall R.R. Co. V. London & Northwestern R.R. Co., 40, 138. Wontner ?7. Shairp, 178. Wood V. Abrey, 235, 454. V. Bernal, 555, 572, 675, 716. V. Farmare, 373. V. Griffith, 61, 63, 224, 231, 536, 571, 701. V. Jones, 366. V. Lake, 386. V. Leadbitter, 386. V, Mann, 117. ■z/. Midgley, 128, 311, 315. V. Patterson, 481. V. Perry, 83, 616. V. Price, 472. V. Richardson, 217. ■V. Rowcliffe, 22. V. Rowe, 58. V. Scarth, 31 1, 507. V. Shepherd, 62. v. Thornly, 383. V. Warner, 65. V. White, 74. V. Wood, 287. Woodbury v. Luddy, 700, 753. V. Parshley, 386. Savings Bank v. Charter Oak Ins. Co., 494. Woodcock 7'. Bennett, 247, 532, 731, 735. 753- Wooden v. Haviland, 471, 499, 510. Woodhouse v. Shepley, 235, 283. Woodman v. Blake, 598. V. Freeman, 732, 734. Woodroffe v. Farnham, 287. Woodruff 7/. Dobbins, 686. V. Hargrave, 247. V. Heniman, 279. V. Water Power Co., 31. Woods V. Dille, 397, 398. V. Hall, 402, 463. Woodson V. Barrett, 287. V. Scott, 61 1. Woodward v. Aspinwall, 98, 267, 323. V. Gyles, 30. V. Harris, 263, 735. V. Miller, 463. Woolam V. Hearn, 507, 510. Workman v. Guthrie, 366, 378. Worley v. Toggle, 500. V. Walling, 391. Wormley v. Wormley, 217. Worrall v. Jacob, 54, 503. V. Munn, 323, 331, 743. Worthington v. Semmes, 199, 363. V. Warrington, 197. Wragg V. Comp. Genl, 27. Wray v. Steele, 339. Wright V. Bell, 10. Wright V. Bigg, 180. V. Brown, 409. V. Cobb, 320. V. Dame, 89, 1 18. V. Dannah, 329. V. Delafield, 127, 576. V. Haskell. 689. j V. Howard, 633. V. King, 325. V. Le Clain, 609. : V. Le Claire, 129, 676. V, McCormick, 513. V. Pucket, 352, 357. V. Tallis, 440. V, Tinsley, 52. V. Wakeford, 326. V. Weeks, 207, 316. V. Wilson, 449. V. Wright, 49, 199, 363. V. Young, 167, 712. Wrigley i>. Sykes, 551. Wuesthoff f. Seymour, 402, 439. Wurzburger tA Meric, 514. Wyatt V. Garlington, 608. Wyche v. Greene, 248, 499. Wycombe v. Donnington Hospital, 200, 485. Wynn v. Garland, 386, 582, 689. WynncT^. Griffith, 137. V. Price, 24. Wythes v. Lee, 274. Wyvill V. E.xeter (Bishop of), 256, 746. Yancey v. Green, 492. Yarborough v. Abernathy, 379. Yates V. De Bogert, 295. Yeatman %>. Dempsey, 287. Yerby v. Grigsby, 325, 333. Yerger v. Green, 263, 309, York V. Gregg, 417. Yost V. Devault, 163, 721. Youell V. Allen, 489. Young V. Bumpass, 409, 439. V. Clarke, 245. V. Coleman, 489. V. Daniels, 6, 611, 614, 656. ex parte, 283. V. Frost, 379. V. Glendenning, 388. V. Heermans, 459, 461. V. Miller, 498. 71. Paul, 213, 324, 723. V. Peachy, 447. "/. Rathbone, 545, 549, 566, 634. Younger v. Welch, 642. Yovatt V. Winyard, 43. Yulee V. Canova, 457. Zane v. Zane, 55. Zebley v. Sears, 721. Zimmerman v. Wengert, 356, 384. Zollman v. Moore, 474, THE Specific Performance of Contracts. BOOK I. OF THE JURISDICTION. CHAPTER I. DEFINITION AND NATURE. 1. Meaning and object. 2. Advantages. 3. Origin. 4. Extent. , 5. Right of party complaining of breach of contract. 6. Discretion of court. § I. What meant by, and ground of . — Specific perform- ance, as applied to contracts, has been defined, " The actual accomplishment of a contract by the party bound to fulfil it.'" "Performance of a contract in the precise terms agreed upon; strict performance."' But as the exact fulfilment of an agreement, according to its letter, by the party, is not always practicable, the phrase may mean, in a given case, not literal, but substantial performance ; or such a performance as will do justice between the parties under the circumstances, with compensation to the other party when that is required.' A main ground of the jurisdiction of courts of equity in specific performance, is that they ' Bouv. L. Diet. '' Burrill's L. Diet. ■ ' The term specific performance, when applied to a partial fulfilment, with compensation for the deficiency, is, of course, used in a qualified sense, as mean- ing the best performance attainable under the circumstances. 2 DEFINITION AND NATURE. § 2, are capable of affording relief not obtainable at law ; the latter requiring the plaintiff to show precision, on his part, in complying with all the terms of the agreement ; while the former sometimes relieve, notwithstanding defects or failure to perform at the day. So a court of equity, having regard to the substance of the agreement and the object and intention of the parties, will not permit terms that are not essential to be set up as a reason for refusing to fulfil. And although the legal remedy may have been lost by the default of the plaintiff, yet a court of equity will enforce the agreement if it is conscientious that it should be per- formed : — as where the plaintiff has fulfilled on his part substantially, but not so completely as to be in a position to claim performance at law.' On the other hand, if the party seeking relief has already obtained substantially what he intended to get under the agreement, equity will not only not compel a formal performance, but will restrain an attempt to recover damages at law for non-performance. § 2. Benefit of remedy. — The remedy of specific per- formance is no less reasonable than beneficial. It is an obvious principle of justice that an agreement, fairly and properly entered into^ should not be evaded or violated ; and that the party injured by its non-performance ought to obtain some form of redress. As the end of every contract is the accomplishment of the thing stipulated, the most direct and effectual remedy would seem to be the compel- ling the fulfilment of the promise. Cases often arise in which there can be no equivalent for non-performance. Real estate, from its location, or some other circumstance, may be a peculiar object of desire to a purchaser far be- yond its market value ; and the same may be true of per- sonal property, so that the failure to obtain either might not be adequately compensated in money. If the con- ' Davis V. Hone, 2 Sch. & Lef., 341. Courts of law, unless specially author- ized by statute, do not, as a rule, enforce the performance of contracts, but only award damages for their breach. See McLane v. Elmer, 4 Ind., 239. § 3- WHEN IT ORIGINATED. 3 tract, from want of skill or mistake in drawing it, or for any other cause, does not express the intentions of the parties, the writing, though executed, may leave the real agreement as inoperative as if one of the parties had re- fused altogether to execute it. A court of equity will, in the exercise of its acknowledged jurisdiction, afford re- lief as well in one case as the other, by compelling the de- linquent party fully to perform his agreement according to the terms of it and the manifest intention." At common law, the courts, though recognizing the obligation of the parties to a contract to perform their respective parts, can in general only enforce this obligation by way of damages.'' " The common law treats as universal a proposition which is for the most part, but not universally, true, namely, that money is a measure of every loss. The defect of justice which arises from this universality of the legal principle, is met and remedied by the jurisdiction of courts of equity to compel specific performance.'" Moreover, there are cases in which there is no remedy whatever at law, for the reason that the law regards the contract as void ; while equijy considers it binding in conscience, and, therefore, entitled to specific enforcement. So, the contract may be one affirmative performance of which cannot be had even in equity, but which equity will enforce negatively by an injunction restraining the defendant from violating his agreement." § 3. When it originated. — The inadequacy of the rem- edy at law gave rise to the jurisdiction of equity, which was invoked for the specific performance of contracts at a 'Hunt V. Rousmanier, i Peters S. C, i, 14. A court of equity will not carr)' out the legal intention and effect of a contract in every case, but only when it is strictly equitable to do so. Canterbury Aqueduct Co. v. Ensworth, 22 Conn., 608 ; Backus' Appeal, 58 Pa. St., 186. "^ Smith on Contr., 296 ; Harnett v. Yielding, 2 Sch. & Lef., 586 ; Tasker v. Small, 3 M. & C, 63. ' Fry on Specif. Perform., p. 6. * As the grounds and scope of the jurisdiction of equity in the specific en- forcement of contracts will fully appear in subsequent chapters, we refrain from extended comment here. 4 DEFINITION AND NATURE. § 4. very early date. A case is reported in the Year Book 3, Edward IV., in which it was said by counsel, "If I promise to build a house for you, if I do not build it, you shall have a remedy by subpoena." To which the chan- cellor is reported to have answered, "He shall.'" In the twenty-first of Henry VII., Chief Justice Pinneux, speak- ing of the remedies for the non-performance of contracts, says : " If a man bargain with another that he shall have his land for ten pounds, and that he will make him an es- tate therein, by such a day, and he do not make the estate, an action upon the case lies ; but it is to be observed, in that, he shall only recover damages. But by subpoena, the chancellor may compel him to execute the estate, or imprison him.'" The jurisdiction of equity in this regard was, however, questioned so late as the fourteenth of James I. ; though, at that period. Lord Ellesmere stated that when the law could not give a lease, or a thing promised, but damages, there was some cause to compel the party to perform the thing promised.^ In the second of Charles I., such suits had become common ; and the Court of Queen's Bench refused to grant a prohibition against a suit for a specific performance, because the plaintiff could not sue at law to assure land, but only to recover damages.* The jurisdiction in time became so well established that it was said by Sir William Grant, that, supposing the con- tract to have been entered into by a competent party, and to be in the nature and circumstances of it unobjectionable, it was as much of course in chancery to decree a specific performance, as to give damages at law.' § 4. Power of court. — A court of equity may enforce or set aside a contract for land, enforce a lien, or exercise juris- diction where a legal remedy is obstructed ;* and compel * Story's Eq. Juris., Sec. 716, note. ' Fitz. Abr. Tit. subpoena, pi. 7. " Powell on Contr., pp. 5, 6 ; Tothill, 229. " Molineux's Case Latch, 172. * Hall V. Warren, 9 Ves., 608. * Davis V. Hall, 4 T. B. Mon., 23 ; Cummings v. Coe, 10 Cal., 529. § 5- CHOICE OF REMEDIES. 5 deeds of confirmation to be made and possession to be given by a party, through whom the title to land is ob- tained, where the deeds are lost or not recorded.' It will often decline to interfere to enable a party to acquire pos- session of property, when nevertheless it will refuse to dis- turb the possession where it has been obtained without its agency." On the other hand, if a court of equity has properly acquired jurisdiction, it will retain the case, and settle matters between the parties which do not afford original ground of jurisdiction.' Whether the fact that the plaintiff has a remedy by mandamus will exclude the juris- diction of equity is unsettled.' § 5. Choice of remedies. — Although, upon the breach of a contract for the sale and purchase of real estate, the per- son injured thereby may, in general, sue either for specific performance or damages, yet he cannot obtain both in re- lation to the same transaction ; and if he proceed for both, the court will compel him to elect.' When a suit is enter- tained for specific performance, the court will in general ' Blight V. Banks, 6 T. B. Mon., 152. Where a deed has been lost or de- stroyed without the fault of the grantee before being placed upon record, the grantor may be compelled to make a second deed in place of the first, after a demand and refusal or failure to comply ; Conlin v. Ryan, 47 Cal., 71. An ac- tion for the specific performance of a contract to convey land is not in all cases beyond the jurisdiction of courts prohibited from entertaining actions in which the title to land comes in question. In such a case the question of title may not be raised ; Lindeman v. Rinker, 42 Ind , 223. ^ Crane v. Gough, 4 Md., 316. ' Brooks V. Stoley, 3 McLean, 523 ; Pearson v. Darrington, 21 Ala., 169 ; Mar- tin V. Tidwell, 36 Ga., 332 ; FrankHn Ins. Co. v. McCrea, 4 Greene Iowa, 229 ; Handley v. Fitzburgh, i A. K. Marsh, 24 ; State v. McKay, 43 Mo., 594 ; Arm- strong V. Gilchrist, 2 Johns Ch., 424, 431 ; Louder's Appeal, 57 Pa. St., 498. ' I Sug. V. & P., 8th Am. Ed., 79, 8r. ' I Danl. Ch. Pr., 4th Am. Ed., 815 ; Royle v. Wynne, Cr. & Ph., 252 ; Hay- wood V. Covington, 4 Leigh, 373; Long v. Colston, i Hen. & Munf., iii. Where in an action by the vendors of real property against the purchaser for damages for the nonfulfilment of the contract, the right to recover was not established, on the trial before the court without a jury, it was held that a judgment for specific performance could not be granted, although the evidence was sufficient to warrant such a suit ; Towle v. Jones, 19 Abb. Pr., 449 ; S. P. Cowenhoren v. City of Brooklyn, 38 Barb., 9. The recovery of damages in an action for the breach of a covenant to grade, inclose, and improve land sold for a public square, is not a bar to a subsequent suit for specific performance of a covenant to keep the premises forever open as a public square ; Stuyvesant v. Mayor, etc., of N. Y., II Paige Ch., 414. 6 DEFINITION AND NATURE. § 6. Stay any other action for the same cause by either party.* But a person may be entitled to damages for violations of the contract up to the time of bringing the suit, with spe- cific performance for the future ; or, to specific perform- ance generally, and damages for acts which do not admit of a decree for specific performance." Where, therefore, in a contract to take a lease for a certain term, the lessee agreed to tear down a house on the premises and erect a new one, it was held that the lessor might obtain specific performance as to the lease, and damages for not building the house ; the court not having power to decree specific performance as to the latter.' § 6. Relief in what sense discretiojiary. — The granting or withholding of a decree for specific performance is said by all of the authorities, when speaking of the remedy, to be in the discretion of the court ; ' neither party to a con- ' Duke of Beaufort v. Gl}Tin, 3 Sm. & G., 226 ; Fennings v. Humphery, 4 Beav., 6 ; Sainter v. Ferguson, i Mac. & G., 286. ^ Fennings v. Humphery, supra. ^ Soames v. Edge, Johns, 669. See Mayor of London v. Southgate, 38 L. J. C, 141. In England, the rule that if the plaintiff fails in his suit for specific performance, courts of equity will not in general entertain the question of dam- ages, but will leave him to his remedy at law, was changed by the Chancery Amendment Act of 1858 (Lord Cairns' act), 21, 22 Vict. Ch., 27. See post, § 518. Section 3 of the act provides for having the damages assessed by a jury. By the Judicature Act of 1873, the court may give either remedy as the case may require. Where, in a suit before a colonial court which administered both law and equity, the bill was not properly framed for specific performance, it was held that the court had power to amend the bill and give damages ; Larios v. Gurety, L. R. 5, P. C. 346. Under Lord Cairns' act the court cannot give dam- ages unless it has original jurisdiction for specific performance : Crampton v, Varna R.R., L. R. 7, Ch. 567 : as where a purchaser is entitled to damages for breach of the contract, but, owing to defect in the title or other default of the ven- dor, specific performance cannot be obtained; Howe v. Hunt, 31 Beav., 420; Lowers v. Earl of Shaftesbury, L. R. 2, Eq. 270; Ferguson v. Wilson, L. R. 2, Ch. "]"] ; or where the injury is small or temporary and capable of compensation in damages, and an injunction will be very detrimental to the defendant ; Ayns- ley v. Glover, L. R. 18, Eq. 555 ; Leader v. Moody, L. R. 20, Eq. 143. Where a railroad company, in purchasing land, agreed with the vendor to construct a station upon it, and the station was afterward located elsewhere, it was held that as the agreement was uncertain as to the use of the station, it was a case for damages instead of specific performance ; but that in assessing the damages every presumption was to be made in favor of the plaintiff as to the extent of the injury ; Wilson v. Northampton & Banburg R.R., L. R. 9, Ch. 279. * Pyrke v. Waddington, 10 Hare, I ; Cox v. Middleton, 2 Drew, 209; Bennett V. Smith, 16 Jur., 422; Watson v. Marston, 4 De G. M. & G., 230; Waters v. Howard, i Md. Ch., 112; Blackwiider v. Loveless, 21 Ala., 371 ; Hudson v. Layton, 5 Harring., 74; Young v. Daniels, 2 Iowa, 126; Rudolph v. Covell, 5 § 6. RELIEF IN WHAT SENSE DISCRETIONARY. 7 tract being entitled to the relief as a matter of right' By this is meant, not the exercise of an arbitrary and capri- cious will governed by the mere pleasure of the court, but, as compared with the absolute right of a party to a judg- ment at law for damages upon the breach of a contract, a sound judicial discretion, controlled by fixed rules and principles, in view of the special features and incidents of each case. When a contract concerning real estate is valid, unobjectionable in its nature and in the circumstances con- nected with it, and capable of being enforced; and it is just and proper that it should be fulfilled, it is as much a mat- ter of course for a court of equity to decree a specific per- formance as for a court of law to give damages for the breach of it." In exercising its discretionary power, the court will act with more freedom than when exercising its ordinary powers, and will grant or withhold relief accord- ing to the case presented.' "In every case the question lb., 126; Auter v. Miller, 18 lb., 405 ; Waters v. Howard, 8 Gill, 262 ; Smoot V. Rea, 19 Md., 398 ; Hester v. Hooker, 7 Sm. & Marsh, 768 ; Tobey v. County of Bristol, 3 Story, 800; Pickering v. Pickering, 38 N. H., 400; Humbard v. Humbard, 3 Head, Tenn., 100; Scott v. Whitlow, 20 111., 310; Doyle v. Harris, II R. I., 539. ^ McComas v. Easley, 21 Gratt, 23 ; Hale v. Wilkinson, lb., 75, but a right to maintain a suit for specific performance accrues upon the refusal of the vendor to fulfil as required by the terms of the contract ; Peters v. Delaplaine, 49 N. Y., 362 ; Beach v. Dyer, 93 III, 295. * Hall V. Warren, 9 Ves., 608 ; Haywood v. Cope, 25 Beav., 140 ; Rogers v. Saunders, 16 Me., 92 ; Griffith v. Frederick County Bank, 6 Gill and John., 424; Pigg V. Corder, 12 Leigh., 69; Meeker v. Meeker, 16 Conn., 403; Seymour v. Delancey, 3 Cow., 445 ; 6 Johns. Ch., 222; King v. Morford, i N. J. Eq., 274; Plummer v. Keppler, 26 lb., 481 ; Anthony v. Leftwich, 3 Rand., Va., 238 ; Prater v. Miller, 3 Hawks., 629 ; Turner v. Clay, 3 Bibb., ^2 ; Frisby v. Bal- lance, 4 Scam., 287 ; Broadwell v. Broadwell, 6 111., 599; McMurtrie v. Bennett, Harr., Mich., 1:^4; Dougherty v. Hamston, 2 Blackf., 273; St. John v. Bene- dict, 6 Johns. Ch., in ; McWhorter v. McMahan, i Clark, N. Y., 400; Hen- derson V. Hayes, 2 Watts, 11.8; Perkins v. Wright, 3 Har. & Mchen., 324; Leigh V. Crump, i Ired. £q., 299 ; Gould v. Womack, 2 Ala., 83 ; Pulliam v. Owen, 25 lb., 493; Ash v. Daggy, 6 Ind., 259; Howard v. Moore, 4 Sneed, 317; Minturn v. Seymour, 4 Johns. Ch., 497; Jackson v. Ashton, 11 Pet., 229; Bowen v. Irish, 6 Bosw., 245 ; Lowry v. Buffington, 6 W. Va., 249 ; Abbott v. L'Hommedieu, 10 lb., 677; Stearns v. Beckham, 31 Gratt., 379; Home Manuf. Co. v. Chicago, L. J., 119. See post, §§ 11, 170, note i. ^ Tyson V. Watts, i Md. Ch., 13 ; Fish v. Lightner, 44 Mo., 268 ; Hudson v. King, 2 Heisk., Tenn., 560; Quinn v. Roath, 37 Conn., 16; Higginbottom v. Short, 25 Miss., 160; Iglehart v. Vail, 75 111., 63, and see Sweeney v. O'Hara, lb., 34; Willard v. Tayloe, 8 Wall, 557; Marble Co. v. Ripley, 10 lb., 339; Bo- gan V. Daughdrill, 51 Ala., 312; Daniel v, Fraser, 40 Miss., 507; Snell v. 8 DEFINITION AND NATURE. § 6. must be whether the exercise of the power of the court is demanded to subserve the ends of justice ; and, unless the court is satisfied that it is right in every respect, it refuses to interfere." ' A valuable consideration, particularity, cer- tainty, mutuality, and a necessity for performance are req- uisites upon which the equity of a case arises." Equity may refuse to decree the specific performance of a contract which it would not set aside if executed.' Mitchell, 65 Me., 48; St. Paul Division v. Brown, 9 Minn., 157. Specific per- formance will be refused in all cases when it is clearly inequitable to grant it. Munch V. Shabel, 37 Mich., 166. See post, § 109. ' Stewart, J., in O'Brien v. Pentz, 48 Md., 562. ^ Aston V. Robinson, 49 Miss., 348. For a consideration of the principles which govern courts in granting relief by decreeing the specific performance of contracts, see Willard v. Tayloe, 8 Wall, 557. The equity jurisdiction of the United States courts is derived from the Constitution and laws of the United States, and their power and rules of decision are the same in all the States. Noonan v. Lee, 2 Black, 499. Under the revised statutes of Maine, ch. 9, p. 10, a court of equity may hear and determine "all suits to compel the specific performance of contracts in writing when the parties have not a plain and ade- quate remedy at law." But the contract must be in force as such. If judg- ment has been obtained thereon, it is no longer a contract in writing within the provisions of the statute, but is merged in the judgment. If judgment has been entered upon the contract in favor of the plaintiff, he has a sufficient remedy at law ; and, with few exceptions, where the contract has r.eference to personalty and not realty, the proper remedy is at law, and a court of equity will not aid in enforcing the provisions of it. Babier v. Babier, 24 Me., 42. An action to en- force specific performance of a written contract in Massachusetts under the Act of 1853, ch. 371, should be at law, praying relief in equity. Darling v. Roarty, 5 Gray, 71. It is too late, after the testimony in the cause is all in, to object to the jurisdiction of the court on the ground that the complainant has an adequate remedy at law. Gumming v. Mayor, etc., of Brooklyn, 11 Paige Gh., 596. ' Glitherall v. Ogilvie, i Dessaus Eq., 250; Barksdale v. Payne Riley, S. G. Gh., 174; Jackson v. Ashton, 11 Pet., 229; Seymour v. Delancey, 3 Cowen, 445 ; 6 Johns. Gh., 222. CHAPTER 11. CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS OF THE JURISDICTION. 7. Insufficiency of remedy at law. 8. Former rule that legal right must first be established, 9. There must be no remedy at law. 10. Not an objection that there is a possible legal remedy. 11. What contracts enforced. 12. Ground for enforcement of contract. 13. Must be a right of action. 14. Most frequent exercise of jurisdiction. 15. Inadequacy of vendor's legal remedy. 16. Rule in respect to personal property. 17. Jurisdiction as to goods when remedy at law is insufficient. 18. Where personal property has a peculiar value. 19. Contracts for the sale of stock. 20. Sale of debt or agreement to give security therefor. 21. Where performance is secured by a penalty. 22. In case of stipulation for payment of liquidated damages. 23. Option of party to do the act or pay a certain sum. 24. Stipulation in lease to pay increased rent. 25. When sum reserved, regarded as a penalty. 26. Stipulations enforced by injunction. 27. Building contracts. not in general enforced. 28. When specific performance of a contract to build decreed. 29. Distinction between a contract to build and a contract of sale, with a stipu- lation to erect a building. 30. Exception to rule as to building contracts. 31. Covenants to repair not in general enforced. 32. Contract to insure enforced. 33. Contracts of hiring and service not enforced. 34. Specific performance of revocable contract not decreed. 35. Rule as to contracts for sale of good-will of business. 36. Specific performance of covenant to renew lease. 37. Validity of a contract in relation to an expectancy. 38. Contracts concerning expectancies enforced with caution. 39. Contract as to expectancy to be enforced during life of party. 40. Defective conveyances by parents aided. 41. Validity of agreement as to disposition of property by will. 42. Agreement for separation of wife enforced. 43. Specific performance of compromise, 44. Agreement to arbitrate not enforced. 45. Specific performance of award. 46. When equity will not enforce an award. 47. Value ascertained by court under agreement to arbitrate, 48. Enforcement of contracts entered into abroad. 49. Contracts which the court has no power to enforce. § 7. Absence or uncertainty of legal remedy. — A con- tract may be such as by reason of its subject matter, the lO CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 7. parties to it or its form confers no right to recover dam- ages at law, but the evasion of which would violate a moral and equitable duty. Thus, although an action could not be maintained on a contract to execute a conveyance by a particular day, which was rendered impossible by the death of the contracting party previous to the day, yet specific performance would be decreed against the heir.' So, spe- cific performance of an agreement may be enforced, although no injury has been sustained, but is only anticipated;' as, where a surety on a bond, by a bill in equity, compels the obligor to pay the debt, although the surety has not been sued.' Again, a contract may be enforced in equity the non-performance of which might have been compensated in damages, when, owing to peculiar circumstances, the remedy at law is not available. Accordingly, where a con- tract for the purchase of standing timber was embraced in a preliminary memorandum, and no articles w^ere afterward drawn, so that it was doubtful whether the agreement in its existing shape might not be regarded at law as too in- complete to afford any remedy there, it was held that the contract was one which equity would specifically enforce." So, a contract to purchase a debt was enforced on the ground that the debt had not been so assigned as to enable the plaintiff successfully to sue at law.' And where the contract was for the purchase of Government stock, the fact that the plaintiff was not the original holder of the scrip, but only the bearer, which rendered it doubtful whether he could maintain an action at law upon the con- tract, was held to give the court jurisdiction.* ■ I Mad. Ch., 362; Milnes v, Gery, 14 Ves., 403. Where another instrument is required to carry out the agreement of the parties, specific performance will be decreed in that respect. Fenner v. Hepburn, 2 Yo. & Col. C. C, 159; Av- ery v. Longford Kav, 663; South Wales R.R. Co. v. Wythes, i K. & J., 186; Affd. 5 De G. M. & G., 880 ; Pollard v. Clayton, i K. & J., 462. = I Mad. Ch., 178 ; Mitf. Eq. PI. by Jeremy, 148. ' Hayes v. Ward, 4 Johns. Ch., 132. ■• Buxton v. Lister, 3 Atk., .383. ' Wright V, Bell, 5 Pri., 325. * Doloret v, Rothschild, i Sim. and Stu., 590. § 8. ESTABLISHING RIGHT AT LAW. II § 8. Establishing right at law. — It is said that it was formerly the practice to send the parties to law, and to en- tertain the suit only in case the plaintiff recovered dam- ages there.' According to Mr. Butler, as the plaintiff was thus subjected to the expense of two suits, the action at law was aftenvard dispensed with when the want or inade- quacy of the legal remedy was evident." Lord Maccles- field asserted that " it is not a true bill, that, where an action cannot be brought at law on an agreement for dam- ages, a suit in equity will not lie for a specific perform- ance." In the case before him,' a feme sole had given a bond to her intended husband, that, in case of their mar- riage, she would convey her lands to him in fee. The wife died without issue, and afterward the husband also died. It was held that although the bond was void at law, yet it was good evidence of an agreement, and that the heir of the husband was entitled to specific performance against the heir of the wife. Mr. Story thinks it doubtful whether such a rule could ever have been generally applied, and that it was probably confined to cases in which the party was not entitled to any remedy at law, and there was no equity to be administered beyond the law.* Where equity interferes to enforce a contract, in order to avoid a multi- plicity of suits, the plaintiff, as a general rule, must first establish his right at law\' But, at the present day, there ' Dodsley v. Kinnersley, Ambl., 406 ; Bettesworth v. Dean & Chapter of St. Paul's, Sel. Cha. Cas. , 67, 69. The latter case was decided in 1726. A lease had been granted by the defendants before the disabling statute of 13 Eliz., with the covenant to renew for ninety-nine years, and the plaintiff sought a renewal for the term allowed by the statute, which the court refused on the ground that no action could have been maintained on the covenant after the passing of the statute. Lord Ch. J. Raymond said : " I take this to be a certain clear rule of equity, that a specific performance shall never be compelled for the not doing of which the law would not give damages. The covenant to oblige them to make a lease for ninety-nine years is gone, and damages cannot be recovered for part of a covenant, and I am therefore of opinion that equity cannot interfere." This decision was, however, reversed in the House of Lords. " Butler's Reminis., 39, 40. ^ Cannel v. Buckie, 2 P. Wms., 244. * Story's Eq. Juris. Sec, 739. * Pennsylvania Co. v. Delaware Co., 31 N. Y., 91. 12 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 9. arc many cases in which specific performance is decreed where no action on the contract for damap^es could have been maintained.' § 9. When there is a remedy at law, eqtiity will not interfere. — A court of equity will not grant relief where the complaining party will not be deprived of any legal right by withholding it, unless he can show clearly that he is entitled to the relief sought' If the plaintiff has an adequate remedy at law, he must seek his redress there.' Where the city of New Haven agreed to purchase of the plaintiff certain lands, and sufficient water of Mill River to supply the city, and covenanted to construct a dam and canal to convey the surplus water for the vendor's use : a bill filed by him to enforce specific performance was dis- missed.' Equity has no jurisdiction of a suit to recover ' See Tevis v. Richardson, 7 T. B. Mon., 654 ; Allen v. Beal, 3 A. K. Marsh, 554. The maxim that equity will not decree the specific performance of a con- tract upon which an action at law for damages will not lie, only means such a contract as the law would have recognized if sued in proper time and under proper circumstances. White v. Butcher, 6 Jones Eq , 231. On a verbal con- tract for the sale of land, made before the statute of frauds went into operation, the court denied relief on the ground that an action could only have been main- tained at law for a breach of the contract, and that such action was barred by the statute of limitations. Smith v. Carney, i Litt., Ky., 295. "^ Parish v. Oldham, 3 J. J. Marsh, 544. *Coombe v. Meade, 2 Cranch, C. C, 547; Drew v. Haynes, 8 Ala., 438; Field V. Jones, 10 Ga., 229; Ross v. Buchanan, 13 111., 55 ; Kyle v. Frost, 29 Ind., 382; Smith v. Short, 11 Iowa, 523; Clayton v. Carey, 4 Md., 26 ; Bone- bright V. Pease, 3 Mich., 318 ; Redmond v. Dickerson, 9 N. J., 507 ; Phyfe v. Warden, 2 Edw. Ch., 47 ; Murdock v. Anderson, 4 Jones, Eq., ']^ ; Peeler v. Levy, 26 N. J., Eq., 330 ; Marble Co. v. Ripley, 10 Wall. 339 ; Richmond v. Du- buque, etc., R.R. Co., 33 Iowa, 422 ; Decks' Appeal, 57 Pa. St., 467 ; Barnes v. Barnes, 65 N. C, 261 ; Noyes v. Marsh, 123 Mass., 286. At a sheriff's sale of land, the purchaser refused to take the property, and it was resold for less money. It was held that as there was a sufficient remedy under the statute, the court would not entertain jurisdiction to compel specific performance by the first purchaser. Orr v. Brown, 5 Ga., 400. In Massachusetts, under the statute conferring upon the court jurisdiction in equity to hear and determine suits for the specific performance of written contracts, " when the parties have not a plain, adequate, and complete remedy at common law," Genl. Sts., Ch. 113, Sec. 2, it was held that specific performance could not be granted where at the time the bill was filed the only obligation on the part of the defendant to be enforced, was his express promise to pay a definite sum of money as an instal- ment. Jones V. Newhall, 115 Mass., 244. Seeposi, Sec. 15. ■"Whitney v. New Haven, 23 Conn., 624. In this case, it was held that, as the contract remained unexecuted and had been abandoned by the purchaser, there was a remedy at law in damages. Quere, whether it might not also have § 10. POSSIBILITY OF LEGAL REMEDY. I3 the value of a supposed interest in certain property upon an alleged contract of the defendant to pay the same to the plaintiff.' So, if a purchaser of land has taken a convey- ance, and there is no fraud in the transaction, and he is afterward evicted for want of title, he has no remedy in equity, but is left to the covenants in his deed.' Where in a suit to compel specific performance of an agreement to convey land, the defendant showed that the title had never been in him, and that performance had been impos- sible, and the judge at special term, against the defendant's objection, sent the case to a referee, it was held that the judge should have declined to proceed with the trial, and should have sent the case to the circuit ; the defendant hav- ing a right to have the damages determined by a jury, of which he could not be deprived.' Where specific perform- ance was sought of an agreement to grant a right of way for a railroad for a term of sixty years, and, between the fihng of the bill and the hearing, the company had obtain- ed power by statute to take the land in fee ; the vice- chancellor considered this a strong reason for denying the relief asked.^ And where the benefit of an agreement might be obtained by an account of profits and payment of the amount found due, and the amount could be re- covered at law, the court refused to interfere.' § 10. Possibility of legal re7itedy. — The fact that the com- plainant has a possible remedy at law, \vill not defeat the jurisdiction of equity, especially where such legal remedy has been rendered doubtful by the fraud of the defendant.' An agreement between the holder of a first, and the holder of a second mortgage, that the latter shall foreclose, and, if been objected to the maintenance of a suit in equity, that the relief asked re- quired of the court a superintendence of the construction of works of a special character, and to see that they were adequate to meet all the requirements of the contract. 'Stewart v. Mumford, 80 III, 192. ^ Middlekauff v. Barrick, 4 Gill, 290. ^Stevenson v. Buxton, 37 Barb., 13. ■• Meynell v. Surtees, 3 Sm. & Gif., loi. ^Ord V. Johnston, i Jur., N. S., 1063. * Richardson v. Brooks, 52 Mirs., 118. 14 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § II. he buys at the sale, pay the holder of the first mortgage a certain sum, is capable of being specifically enforced,' Specific performance may be decreed of an agreement not- withstanding the plaintiff" has a concurrent remedy in dam- ages, or has entered into a negotiation for a money con- sideration which has failed.' § 1 1, Conti'-acts which will be enforced. — Every contract the subject of which is susceptible of substantial enjoy- ment, should be enforced, provided always, • the circum- stances surrounding and connected with the contract bring it within the rules entitling the party to equitable relief." In such case a court of equity will decree specific perform- ance, as a matter of course, where the contract is in writing, is fair and certain, is upon an adequate consideration, and is capable of being enforced.* For this purpose, any writ- ten instrument for the transfer of property, the terms of which are proper, and the meaning clearly ascertainable, but where something is omitted necessary to give it validity at law, will be regarded as a contract, or as evidence of a contract, when no injustice will be done to innocent third persons by its enforcement.' A. and B., who were joint owners of real estate in equal moieties, entered into an agreement in waiting, that if either party should wish to ' Livingston v. Painter, 19 Abb. Pr., 28 ; 28 How. Pr., 517 ; 43 Barb., 270. In this case, the holder of the second mortgage agreed that if he bought " in his own name or otherwise," at the sale under the foreclosure of his mortgage, he would reduce the principal sum secured by the first mortgage, by paying, on ac- count of the same, three thousand dollars, and also arrears of interest ; the holder of the latter agreeing to waive his right to foreclose for the whole prin- cipal and interest. Under the foregoing agreement, the plaintiff could not re- cover at law anything beyond nominal damages, without showing that his mort- gage had been foreclosed for the whole principal, and that the mortgaged premises did not bring sufficient to pay the mortgage. "Greene v. Westcheshire RR. Co., L. R. 13, Eq. 44. 'Johnson v. Rickett, 5 Cal., 218 ; Bruck v. Tucker, 42 lb., 347. ■* Chance V. Beall, 20 Ga., 143 ; Rogers v. Saunders, 16 Me., 92; Hopper v. Hopper, 16 N. J., Eq., 147 ; a7ite, % 6. 'Tiennan v. Poor, i Gill & Johns, 216. A valid contract between plaintiff and defendant, accompanied by defendant's tender of performance, constitutes a good cause of action in equity for a specific performance ; and under the New York code, is such a cause of action as can be set up as a defence in another action. Kelly v. Dee, 2 Thomp. & Cook, 286. §§ 12, 13- EQUITY WILL NOT CREATE A RIGHT OF ACTION. 1 5 sell the property, he should fix a price which he would be willing to give or take, and if not acceded to by the other, a sale of the whole should be made upon the best terms that could be obtained. On the death of either party, his executors or administrators were to carry out the agree- ment. A. died leaving a widow and infant children, and by his will appointed his widow executrix, but forbid her to sell the land. The land was sold at pubhc auction, on terms satisfactory to A. 's representatives, and beneficial to the children ; and it was held that a decree enforcing the sale, passed the title of the infants.' § 12. When specific performance decreed. — It is a suffi- cient ground for the enforcement of a contract in specie, that the ends of justice can alone be thereby subserved." A. devised his real estate to B., and gave him the use of his personal property for three years, when the latter was to be divided, undiminished, among A.'s children. The debts of the testator were to be paid out of the profits of the whole estate for three years, if sufficient ; if not, the deficiency was to be supplied from the lands, and the portion remain- ing was to be held in tail. The income of the estate for three years was not enough to pay the debts, and B. con- tracted to sell certain lands to C. for that purpose, but died without giving a deed. A conveyance by B.'s heirs, and a release of dower by the widow, was decreed in favor of C, on payment of the purchase money." § 13. Equity will not create a right of action. — But the rule which requires a plaintiff to show a present subsisting right of action is equally regarded in equity as at law. Although a court of equity will supply a remedy where none exists at law, yet it will not create a right of action where ^Goddin v. Vaugn, 14 Gratt., 102. " Skinner v. Morris Canal & Banking Co., 27 N. J. Eq., 364, A court of equity has jurisdiction to interfere and prevent the improper diversion of a spe- cific fund devoted to a particular use, whenever such interference becomes necessary to prevent a great or irreparable injury, or to avoid a multiplicity of suits. Farmer v. Vollentine, 7 Nebr., 498. 'Campbell v. Digges, 4 Har. & McHen., 12. 1 6 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 1 4. the law gives none/ Where upon the dissolution of a partnership, one partner gave to the other a bond of in- demnity against the debts of the concern, and the principal debtor died insolvent, whereupon the obligee filed a bill against the sureties for a specific performance of the con- tract, and it was not alleged that the complainant had yet sustained any damage on account of the alleged default, and, as upon the happening of such a contingency, there would be an adequate remedy at law, it was held on demur- rer, that the court could not enforce such a contract." So v/here the grantee of land covenants and agrees to assume and pay off a mortgage on the land as part of the purchase money, which he fails to do, and the mortgagee commences an action to foreclose, the contract of the grantee cannot be specifically enforced until it is shown that there will be a deficiency on the sale of the land, and the amount of the deficiency.' § 14. Agreements for the sale of land. — The jurisdiction of equity in compelling specific performance, is most fre- quently exercised in the case of contracts concerning real estate ; the remedy being applied not only as between the original parties, but also as to those who claim under them in privity of estate, representation, or title." Where parties contract for the sale and purchase of land, equity, upon the showing of a proper case for its interference, will decree that a good and sufficient conveyance be made upon pay- ment of the purchase money." The form of a contract of sale is not important, provided the contract itself is in its nature unobjectionable." If there is ground to infer an inten- tion to convey upon a valuable consideration, and the legal ' Hoy V. Hansbrough, i Freem., Miss. Ch., 533. ' Foote V. Garland, i Sm. & Marsh, Ch. 95. ' Slauson v. Watkins, 44 N. Y. Supr. Ct„ 73. * Glaze V. Drayton, i Desau., 109; McMorris v. Crawford, 15 Ala., 271 ; Ewins V. Gordon, 49 New Hamp., 444 ; Nesbit v. Moore, 9 B. Mon., 508 ; Tiernan v. Roland, 27 Pa. St., 429 ; Ambrouse v. Keller, 22 Gratt., 769 ; Laverty v. Moore, 33 N. Y.. 658. See Post, Book 2, Ch. i. ' Murphy v. McVicker, 4 McLean, 252. * St, Paul Division v. Brown, 9 Minn., 1 57. §15- GROUND OF vendor's CLAIM TO THE REMEDY. IJ estate does not pass, the court will compel the execution of a proper instiTiment.' A father promised to bequeath to his son certain money in consideration of the services of the son in managing his father's estate ; and, in exchange for a lot of land conveyed to him by the son, to devise two speci- fied lots of his own, to the son. The will, to the above effect, being invalid for want of three witnesses, it was held that a bill for specific performance as to the land would lie.' The doctrine of specific performance is applicable to con- tracts for any estate in land, as a contract to grant a lease, or to renew a lease, or a contract for the assignment of a lease." § 15, Ground of vendor s claim to the remedy. — As the vendor of land seeks only the payment of the purchase money, it might be contended, that he had an adequate remedy at law, and therefore could not sustain a bill for the specific performance of the contract. A moment's re- flection will, however, show that damages would not restore him to the situation he would be in, if the contract were performed. Where the sale is completed, the vendor parts with his land, and gets what he deems an equivalent. But after an action at law, he still has the land, and in addition, damages representing the difference between the stipulated price and the price which it would probably bring if re-sold, together with incidental expenses and such special damage as he may have sustained.* He is, however, entitled to the 'Varick v. Edwards, i Hoffm., Ch. 382. Where a vendee entered into posses- sion of land by consent of the vendor, and under an agreement that the vendor would execute to him, upon payment of the purchase money, a title bond con- ditioned for a conveyance of the land as soon as the vendor obtained a deed of the same, it was held that equity would decree the execution of such bond upon payment of the purchase money. Sterling v. Klepsattle, 24 Ind., 94. "Maddox v. Rovve, 23 Ga., 431. Where it was proper for trustees to convey the legal title to land, and one of the trustees denied that he had accepted the trust, and refused to convey, but there was some evidence of an acceptance, the court decreed a conveyance by him. Vaughan v. Barclay, 6 Whart., 392. 'Harding v. Metropol. R.R., L. R. 7, Ch. 154. Post, §36. * Eastern Counties R.R. Co. v. Hawkes, 5 House of Lds., 331 ; Lewis v. Lord Lechmere, 10 Mod., 503. The sale may have been made for other than a mere money consideration. Upon the purchase of land by a railway company, the com- pany entered into a covenant with the vendor, that a certain portion of the land 1 8 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 1 5- specific performance of the contract of sale, not because the reHef at law may be inadequate, but upon the principle of mutuality of remedy. It has been said that he may main- tain a suit in every case in which the purchaser can sue for specific performance ; ' and this, notwithstanding the pur- chase money has been paid ; his right to be relieved from the responsibilities appertaining to the ownership, being sufficient -to sustain the suit." Where land was sold to a railroad company, it was held not a defence to the suit of the vendor, that the amount of the purchase money, and the damages consequential on the purchase, were fixed by the agreement of the parties at a specified sum.' His bill has, however, been dismissed, when the sole object of it was to obtain payment of the purchase money.' The doc- trine of equity that upon the execution of the contract, the land is converted into money, and the money into land, and purchased " should be forever thereafter used and employed as and for a first-class station or place for the purpose of taking up and setting down passengers travel- ing along the railway." The company having broken their covenant by stopping at this particular station only such trains as stopped at nearly all other stations, and also by gradually withdrawing from the station the accommodation origi- nally provided for passengers, it was held that the land owner was entitled to a decree against the company for a specific performance of the agreement. Hood v. Northwestern R.R. Co., 8 Eq., 666; Affd., 5 Ch. App., 525. ■ Adderley v. Dixon, i Sim. and Stu., 607; Clifford v. Turrell, i Yo. and Col. C. C, 138, Affd. 9, Jur. 633 ; Kenny v. Waxham, 6 Madd., 355 ; Walker v. East- ern Counties R.R. Co., 6 Hard., 594. Although a vendor of real estate usu- ally has an adequate remedy at law, yet he has a choice of remedies. Pincke v. Curteis, 4 Brown's Ch. R., 329 ; Carey v. Smith, 2 N. Y., 60; Schroeppel v. Hop- per, 40 Barb., 425 ; Bryson v. Peak, 8 Ired. Eq., 310 ; Phyfe v. Wardell, 5 Paige Ch., 268 ; Springs v. Sanders Phili. N. C. Eq., 67 ; Finley v. Aiken, t Grant Pa. Cas., 83 ; Larison v. Barb, 4 Watts, 7.7 ; Old Colony R.R. Co. v. Evans, 6 Gray, 25. F. contracted in writing with M. to convey to him certain lands for a stipu- lated price, to be made in two payments. F. was to do certain work on the land, for which he was to have the right to all the timber thereon, with two years to remove the same. At a given day M. was to make the first payment and have possession, and he was to leave a road open so that F. could have free access to the timber. The contract was signed by both parties. F. filed a bill for specific performance, alleging that he had done the work, and was ready and wilhng to fulfil the balance of his contract, but that M. refused to pay any portion of the purchase price, or receive the land. Held that the bill should not be dismissed for want of equity. Forsyth v. McCauley, 48 Ga., 402. ^ Shaw v. Fisher, 2 De G. and S., 11 ; Wayne v. Price, 3 lb., 310; Cheale v. Kenward, 3 De G. and J., 27. ■•"Webb V. Direct London, etc., R.R. Co., 9 Hare, 129. * Deck's Appeal, 57 Pa. St., 467; Kauffmani's Appeal, 55 lb., 383. An/e §9, nofe 5. § l6. IN THE CASE OF PERSONAL PROPERTY. I9 the vendor's lien for the purchase money, has been mem- tioned as an additional reason why the remedy should be mutual.' But it has been said that the court will more readily listen to objections made against a vendor seeking specific performance, "because he can get complete relief at law.'" Where the contract has fallen through, leaving no claim except that of the vendor for compensation for a breach, the court w^ill not, in general, exercise any jurisdic- tion in his behalf, but will leave him to his remedy at law." § 16. In the case of per so7ial property. — It is on the ground that the remedy at law is adequate, that the court, subject to exceptions, will refuse to entertain suits in respect to goods, stock, and other things of a merely personal nat- ure.' For, although it is against conscience, that a man should be permitted to evade the exact fulfilment of any bona fide contrrict, yet payment of the money value of most kinds of personal property, at the market price in lieu of its delivery, by enabling the purchaser to obtain other property of the same kind, will afford him full compensa- tion. But in all cases, w^hatever may be the nature of the property, if the plaintiff has not an adequate remedy at law, a court of equity will entertain jurisdiction.' It is not ' Fry on Specif. Perform., 10. nVebb V. Direct London and Portsmouth R.R. Co., i De G. M. and G., 7?,!. Mbid. Stuart v. London and N. W. R.R. Ibid., 521. Where contracts are made for the purchase of real estate for public purposes, such as highways, rail- roads, canals, parks, and the like, but which contracts being altogether executory, are abandoned, and the vendor remains in possession, he must seek his redress at law, and not in equity. In Webb v. London and Portsmouth R.R. Co., 9 Eng. L. and Eq., 249, on appeal, the defendants had entered into an agreement to purchase certain lands not exceeding eight acres, for a proposed railroad, and to pay four thousand five hundred pounds for them, but which were not taken, though the defendants entered to make a survey and estimate, and cut one tree, and the plaintiff was not otherwise disturbed in his possession and enjoyment. Held, not a case for specific performance. ■* Madd. Ch. Pr., 230 ; Pooley v. Budd, 7 Eng. L. & Eq.. 228 ; 14 Beav., 34 ; Coldwell V. Myers, Hard., Ky. , 551; Madison v. Chum, 3 J. J. Marsh, 230; Cowles V. Whitman, 10 Conn., 121 ; Justice v. Croft, 18 Ga., 475 ; Phillips v. Berger, 2 Barb., 608 ; Scott v. Billgerry, 40 Miss., 119. ^ Clark V. Flint, 22 Pick., 231 ; Roundtree v. McLean, i Hemp., 245 ; Sullivan V. Fink, I Md. Ch., 59; Waters v. Howland, lb., 112; City Council v. Page, Spear, S. C. Ch., 159; Hoy v. Hansborough, i Freem. Miss. Ch., 533; Lloyd V. Wheatly, 2 Jones' Eq., 267 ; Johnson v. Rickett, 5 Cal., 218 ; Duff v. Fisher, 20 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 1 6. therefore a ground of demurrer to a bill, that it seeks spe- cific performance of a contract relating to personalty." Where a vendee paid the entire consideration for personal property, and before its delivery the vendor was about to dispose of it in fraud of the vendee's rights, and it appear- ed that the vendor was insolvent, and that there would be difficulty in replevying the property, it was held that the vendee was entitled to an injunction in the nature of spe- cific performance.' Where the delivery of chattels is part of a contract otherw^ise capable of being enforced, specific performance may be decreed.' An exception to the general 15 lb., 375 ; Furman v. Clark, 11 N. J. Eq., 3 Stock., 306. But contracts of this description will be weighed with greater nicety than such as relate to lands. Mechanics' Bank v. Seton, i Pet., 299 ; Cutting v. Dana, 25 N. J. Eq., 265. A. and B. entered into an agreement in writing, by which A. was to convey to B. certain patent rights, which A. refused to do, when B. filed a bill to compel specific performance, which was decreed, B. having no remedy at law. Corbin V. Tracy, 34 Conn., 325. Mr. Story, Eq. Juris., Sec. 724, remarks that the su- preme court of the United States has manifested an inclination " to maintain a tar more extensive jurisdiction in equity to grant relief by a specific performance, in contracts respecting personal chattels, than is at present exercised in the En- glish courts." Referring to Barr v. Lapsley, i Wheat., 151 ; Mechanics' Bank of Alexandria v. Seton, i Peters, 305. Another writer says that there seems to be a tendency throughout this country to subordinate the distinction between contracts which relate to realty, and those which refer to personalty, to the general question whether the plaintiff is fairly entitled to more perfect relief than he can obtain at law. Parsons on Contr., 3d Ed., p. 535. An agreement entered into to pay in gold coin should he specifically enforced, when gold, silver, and bank bills have different market values. Hall v. Hiles, 2 Bush., Ky,, 532. Where a note payable in gold was given for land, and the land was valued on a gold basis, it was held that specific performance should be decreed irrespective of the question whether treasury notes are a legal tender, and that judgment should be rendered against the maker for the value of the gold in paper currency. Hord V. Miller, 2 Duvall, Ky., 103. ' Carpenter v. Mu. Safety Ins. Co., 4 Sandf., Ch. 408. "^ Parker v. Garrison, 61 III, 250. But where a debtor agreed to transfer stock as collateral security for a debt, and died insolvent before doing so, the court refused to enforce specific performance of the agreement to the injury of other creditors. City, etc., Ins. Co. v. Olmstead, 33 Conn., 476. ^ Marsh v. Milligan, 3 Jur., N. S., 979. Equity may enforce an agreement by a holder of notes, to deliver them up to the maker to he canceled, notwithstand- ing they are overdue, and in the hands of the original payee. Tuttle v. ]\Ioore, 16 Minn., 123. In this case, the defendant insisted that the plaintiff was not entitled to the equitable relief sought, because he had an adequate remedy at law, inasmuch as the notes were overdue, and in the hands of the original payee, so that they could not be used or transferred to prejudice his defence; and no special ground, or even apprehension of injury, was stated in the com- plaint calling for the interposition of the court. To this, the court replied, that as the defendant expressly agreed to cancel and deliver up the notes, the grant- ing of the relief sou_ght was simply compelling the specific performance of his §17- SPECIFIC DELIVERY OF GOODS. 21 rule may also arise, where the right to chattels enters into, and is a material part of, a contract in relation to real estate. A landlord, in letting a farm, contracted with the tenant that the latter should have the stock thereon, but afterward seized it under a distress and bill of sale. Lord Eldon made an order that the stock be restored, holding that the contract was entire, entitling the tenant to both the estate and the chattels ; the latter being essential to the enjoy- ment of the estate.' So, if the plaintiff can only be com- pensated in damages for some of several articles purchased by him, specific performance wi*ll be decreed as to all' § 1 7. Specific delivery of goods. — The rule that a suit cannot in general be maintained for the specific perform- ance of a contract for the sale of goods, is applicable where the goods are to be delivered from time to time by instal- ments, although the damages must be assessed upon con- jecture as to the future market price.' If, however, the remedy at law would be wholly inadequate or impracticable, specific performance will be decreed.* Where a foreigner express contract, and was, in truth, the only adequate and complete remedy for the plaintiff; that if an action were brought upon the notes, the plaintiff might be prevented from making a successful defence in consequence of lapse of time, death, removal, or forgetfulness of witnesses, the loss of documentary evidence, or other contingencies not within his control ; and that there was no good reason why the plaintiff should be subjected to this risk, nor any injustice in compelling the defendant to do what he agreed to do. 'Nutbrown v. Thornton, 10 Ves., 159, ''McGowin v. Remington, 12 Pa. St., 56. 'Fothergill v. Rowland, L. R. 17, Eq. 132 ; Pollard v. Clayton, i Kay & Johns., 462. But see Taylor v. Neville, cited 3 Atk,, 384. * And if the legal remedy is insufficient, a court of equity may order the de- livery up of goods wrongfully detained. Bowling v. Bitjemann, 2 J. & W., 544. " Though the action of replevin is with us a broader remedy than in England, lying in all cases when one man improperly detains the goods of another, it is in no instance effective to enforce a specific return of chattels, since a claim of property and bond given are always sufficient to defeat reclamation, no matter what may be the eventual issue of the contest. As, therefore, our common law tribunals are as powerless for such a purpose as the similar English courts, the propriety of exercising the equitable jurisdiction must depend with us on the same reasons that are deemed sufficient to call it into action there. Here, as there, the inquiry must be whether the law affords adequate redress by a com- pensation in damages where the complaint is of the detention of personal chat- tels. If not, the aid of a court of chancery will always be extended to remedy the injury by decreeing a return of the thing itself." Bell, J , in McGowin v. Remington, supra. 2 2 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 1 8. had contracted for the sale of a ship which subsequently arrived at an English port, the removal of the ship was re- strained by injunction, as an action at law for damages could not be maintained by the buyer.' And where goods of special value were sold, and there were no other similar goods in the market, a disposal of them by the seller in breach of the contract, was restrained by injunction.^ If the seller retain the goods in trust for the buyer, or his as- signee, the court will compel the execution of the trust ; the nature of the subject matter presenting no obstacle to in- terference by the court.' A court of equity may compel the maker of a promissory note, who, having obtained pos- session of it from the holder under promise to return it or execute another note of the same tenor and amount, has destroyed it, to execute and deliver a new one.* So, where an agent has possession of goods for his principal, he will be enjoined from improperly disposing of them, and spe- cific delivery be compelled." § 1 8. Articles of exceptional value. — Goods which have a peculiar value, as articles of curiosity, antiquity, or affec- tion, the loss of which could not be estimated in damages, will be decreed to be delivered to the person entitled, such as : family pictures, furniture, or heirlooms ;' an ancient ' Hart V. Herwig-, L. R. 8, Ch. 86o. "" Hughes v. Greene, 33 L. J. Q. B., 335. 'Pooley V. Budd, 14 Beav., 34; Stanton v. Percival, 5 H. L. C, 257 ; Cowles V. Whitman, lo Conn., 121. See Ferguson v. Paschall, 11 Miss., 267. ^McMullen v. Vanzant, 73 111., 190. An agreement in writing for the con- veyance of land and payment of the purchase money was executed by both parties, but left in the hands of the vendor, with the stipulation that the vendee should have a duplicate thereof, on payment of a certain sum. Held, that on payment of the amount by the vendee, no demand of the duplicate was neces- sary, but he was entitled to specific performance, and that the withholding- of the duplicate was a reasonable excuse for non-fulfilment on his part. Hull v. Noble, 40 Me., 459. Where plaintiff sold his horse and wagon and the good- will of his business, which consisted of a list of his customers, the defendant agreeing to pay in instalments, and, on failure to do so promptly, to return to the plaintiff the horse and wagon and the list of customers, and the payments were not made, it was held that equity would enforce specific performance. Pal- mer v. Graham, I Pars. Pa. Sel. Cas., 476. 'Wood v. Rowcliffe, 3 Hare, 304. ° Lady Arundell v. Phipps, 10 Yes., 139 ; Earl of Macclesfield v. Davis, 3 V. & B., 16 ; Falcke v. Gray, 5 Jur. N. S., 645. § 19- WHERE THE CONTRACT IS FOR THE SALE OF STOCK. 23 silver altar-piece, noted for a Greek inscription and dedica- tion to Hercules ;' the celebrated Pusey horn, possession of which was recovered by the heir of the family of Pusey, the case turning upon the pretuim affectionis, independ- ently of the circumstance as to tenure ;' the dresses, deco- rations, papers, and effects of a lodge of Freemasons ;' a tobacco box of a remarkable character, belonging to a club ;* a box of jewels/ So, specific performance will be decreed of a contract for the delivery of chattels which no one but the defendant can supply, and which are necessary to enable the plaintiff to fulfil an engagement with a third person : as if a man were to contract to furnish timber to a ship-builder who had agreed to complete a ship by a given time, which he could not do unless the timber was sup- plied by the defendant ; but not where the delivery of the chattels by the defendant is a mere question of conven- ience — as the supply of coal from an adjoining mine, when abundance of other coal can be obtained in the neighbor- hood." § 19. Where the contract is for the sale of stock. — A contract for the sale of stock which can be obtained in the market, will not in general be specifically enforced ; the buyer, or seller, having a sufficient remedy at law, in the market price of such stock. Lord Macclesfield refused to decree the specific performance of an agreement for the transfer of South Sea stock, for the following reasons : first, the nature of the subject matter of the contract ; * Duke of Somerset v. Cookson, 3 P. Wms., 390. ^ Pusey V. Pusey, i Vern., 273. " Lloyd V. Loaring, 6 Ves., 773. ^ Fells V. Read, 3 Ves., 70. ^ Saville v. Tancred, i Ves. Sen., loi. See Lowther v. Lowther, 13 Ves., 95 ; Pearne v. Lisle, Amb., 'j'] ; Earl of Macclesfield v. Davis, 3 V. & B., 16. In an early case in North Carolina, a contract for a favorite slave was specifically enforced, Chief Justice Taylor saying that, ''For a faithful family slave, en- deared by a long course of service or early associations, no damages can com- pensate ; for there is no standard by which the price of affection can be ad- justed, and no scale to graduate the feelings of the heart." Williams v. How- ard, 3 Murphey, 74. ^ Buxton v. Lister, 3 Atk., 385. 24 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 1 9. second, the circumstance that the defendant was not pos- sessed of the stock at the time of the contract ; third, the Hability to sudden rise and fall in the stock.' In a subse- quent case, however, Lord Hardwicke granted specific per- formance of such an agreement ;' and the rule has been departed from in other cases.' The same principles govern in contracts for the sale of stock as in the sale of other property, that is, if a breach can be fully compensated in damages, equity will not interfere ; while it will do so,, when, notwithstanding the payment of the money value of the stock, the -plaintiff will still lose a substantial benefit, and thereby remain uncompensated. If a contract to con- vey stock is clear and definite, and the* uncertain value of the stock renders it difficult to do justice by an award of damages, specific performance will be decreed.* Where scrip certificates constituted the legal title of the pur- chaser of new stock, without w^hich he could not main- tain an action for the stock, their specific delivery was de- creed.' The rule of exclusion does not apply to railway shares, which are limited in number, and not always to be had in the market.^ A vendor of railway shares may maintain a suit against the purchaser to compel him to com- plete the purchase by the execution and registration of a proper transfer, and to indemnify the seller against future calls.' Specific performance will be decreed of a contract ' Cud V. Rutler, 5 Yin. Abr., 538 ; i P. Wms., 570. ^ See Nutbrown v. Thornton, 10 Ves., 161. ' Withy V. Cottle, i Sim. & Stu., 174 ; Colt v. Nettervill, 2 Sim.. 304. "•White V. Schuyler, i Abb. Pr. N. S., 300; 31 How. Pr, 38; Treasurer v. Commercial Co., 23 Cal., 390. ' Doloret v. Rothschild, i Sim. & Stu., 590. " Duncuft V. Albrecht, 12 Sim., 189 ; Wilson v. Keating-, 4 De G. & J., 388 ; Cheale v. Kenward, 3 lb., 27 ; Paine v. Hutchinson, L. R. 3, Ch. 388. ' Shaw V. Fisher, 2 De G. & Sm., 11 ; Wynne v. Price, 3 lb., 310 ; Walker v. Bartlett, 18 C. B., 845. The plaintiffs, who were dealers in stock, contracted to sell to the agent of the defendant shares which they had bought from, and which remained registered in the name of C. On the settling day, the agent of the defendant gave the name of the latter to be inserted in the deeds of transfer. Transfers, executed by C. to the defendant, were delivered to the defendant's agent, who paid for the shares out of money given to him by the defendant. The defendant would not execute the deeds and procure their registration, on § 20. CONTRACT IN RELATION TO DEBTS. 25 for the sale of shares in a company, although the sale is subject to the approval of the directors, unless the di- rectors refuse to permit the sale.' And an applicant for shares in a company will be compelled, after an allotment in due form, to accept the shares allotted, and to sign the articles of association, if he has contracted to do so. Equity will enforce an agreement to convey real estate and to transfer shares in a corporation, both as to the real es- tate and the shares. ° § 20. Contract in relation to debts. — The power of the court to compel the specific performance of contracts is limited to what is expedient and practicable. In the case of a mere debt or claim to the payment of money, or to damages for a breach of contract, there is an adequate remedy at law.' So, specific performance will not be de- creed of a contract to borrow or lend money.' But it is otherwise of an agreement to give security for a debt, as : an agreement to execute a mortgage, notwithstanding the mortgage is to contain a power of sale which may be exer- cised without delay ; ^ or an agreement to grant an annuity, the ground that he told his agent that he intended to resell without taking a transfer, and that his name had been given without authority. A few months after the sale the company was ordered to be wound up. A bill for specific per- formance and indemnity having been filed before the winding up, to which C. was not a party, it was held that the plaintiffs were entitled to the relief asked. Paine v. Hutchinson, L. R. 3, Eq. 257 ; Affd. 3, Ch. App. 388. ' Poole V. Middleton, 29 Beav., 646 ; Bermingham v. Sheridan, 33 lb., 660. "^ New Brunswick Land Co. v. Muggeridge, 4 Drew, 686 ; Oriental Steam Co. V. Briggs, 2 Johns. & Hem., 625. ' Leach v. Forbes, 1 1 Gray, 506. '' Kirk v. Bromley Union, 2 Phil., 640 ; Greenaway v. Adams, 12 Ves., 401 ; Todd V. Gee, 17 lb., 278; Jenkins v. Parkinson, 2 M. & K., 5. But a contract for the sale of a debt will be specifically enforced where the complainant has not a clear and adequate remedy at law, as : where the creditors of an insolvent firm agreed to sell their claims to one of their number at twentj'-five per cent. Cut- ting V. Dana, 25 N. J. Eq., 265. An agreement in writing, by the owner of a mortgage debt, that, on receiving money from another person, he will pay him a specified portion of the debt " when received, and in manner as received," is such an agreement as may be specifically enforced. Buck v. Swazey, 35 Me., 41. ^Rogers v. Chaltis, 27 Beav., 175; Siebel v. Mosenthal, 31 L. J. C, 326 ; Larios v. Gurety, L. R. 5, P. C. 346. " Ashton v. Corrigan, L. R. 13, Eq. 76 ; Robinson v. Cathcart, 2 Cranch, 590. A. agreed to convey to B. a lot of land, on condition that B. would previously secure to C. a sum of inoney by mortgage on the lot. Held, that equity might 26 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 21. and to charo;c it on land or other property ; ' or an agree- ment, by the vendor of land, to release the land from the lien of a mortc^age.'' A. sold land to B., the purchase price to be paid within a short time, in order to release the land from the lien of certain mortgages. B. paid part of the purchase price, and filed a bill to enjoin his vendor, whom he alleged was insolvent, from selling, and from committing waste, and obtained a decree. Afterward, having tendered good notes to the full amount of the purchase money, and offered to perform, he filed an amended bill to compel a specific performance of the contract. In the meantime the land was sold under foreclosure, and bought in by B., who paid cash to the amount of the lien. Held, that B, had a right to extinguish the lien in that way, and was entitled to a decree.' When damages at law would not accurately rep- resent the value of the contract to either party, a court of equity will grant relief. This was done where the con- tract was for the sale of debts proved under two commis- sions of bankruptcy, the court considering that to compel the plaintiff to accept damages would be to oblige him to sell these dividends, which were of unascertained value, at a conjectural price.* § 21. Contract with penalty. — Equity has regard to the substantial agreement between the parties and its real ob- ject, and not to that which seems to be the object. The compel the execution of the mortgage ; or, if due, its payment might be enforced, by the decree, upon the interest of A. and B. in the lot. Ogden v. Ogden, 4 Ohio St., 182. A parol contract for a mortgage of personal property, based upon a valuable consideration, may be enforced in a court of equity, if the contract is not such as the statute of frauds requires to be in writing. Triebert v. Burgess, II Md., 452. C. promised to transfer to A. and B., to secure them for becoming sureties on promissory notes of C, certain partnership assets of the firm of C. and D., C. being in failing circumstances. It was held that A. and B. were en- titled to a decree on the filing of a proper bill for the purpose, averring that the notes, though made by C, were the notes of the firm. S lOckley v. Davis, 17 Ga., 177. ' Withy V. Cottle, i Sim. and Stu., 174; Lyde v. Mynn, i M. and K., 683 ; Wellesley v. Wellesley, 4 M. and Cr., 579. ^ Bennett v. Abrams, 41 Barb., 619; Barkley v. Barkley, 14 Rich. Eq., 12. ^ Berry v. Walker, 6 B. Mon., 464. * Adderley v. Di.xon, i Sim. and Stu., 607. §21. CONTRACT WITH PENALTY. 2.7 circumstance that something has been done purporting to be an execution of the agreement, will be no answer to a claim for specific performance if the alleged execution be not in accordance with the intentions of the parties. The general rule of equity is, that if a thing is agreed to be done, and a penalty is given to secure performance, to be enforced in case the party refuses to perform, the court will fasten upon the express contract, and will say to him, " You cannot fall back upon the penalty, but must do the act.'" Where a clause for the payment of a penal sum is inserted in an agreement, the interference of equity will depend upon the question whether or not the contract will be satisfied by payment. If it be stipulated to do one of two things, namely, to perform an act, or pay a sum of money, the lat- ter will suffice, and there will be no ground for equitable procedure against the party who has the choice. On the other hand, where the agreement is, that a certain thing shall be done, with a penalty added to secure its perform- ance, a court of equity may, notwithstanding the penalty, enforce the performance of the very thing, and thus carry out the intentions of the parties.'' Thus, where a grantee of land executed a bond, in consideration of the conveyance to support the grantor for life, and, in case of neglect to re-convey the land, it was held that upon failure of the grantee to perform, equity would decree a re-conveyance.^ ' ChilHner v. Chilliner, 2 Ves. Sen., 528 ; Hobson v. Trevor, 2 P. Wms., 191 ; Parks V. Wilson, 10 Mod., 517; Winslow v. Dawson, i Wash., 118; Telfair v. Telfair, 2 Desau. Ch., 271. ^ Howard v. Hopkins, 2 Atk., 371 ; French v. Macale, 2 Dr. and W., 269; Roper V. Bartholomew, 12 Price, 797 ; Gillis v. Hall, 2 Brews., Pa., 342 ; Broad- well V. Broad well, 6 III, 599 ; Dailey v. Litchfield, 10 Mich., 29, ^ Robinson v. Robinson, 9 Gray, 447. "The taking of a bond, or other se- curity, for the purchase money, might reasonably lead to the conclusion that the vendor trusted to such security, and that the estate was intended to be absolutely vested in the vendee." — Fonbl. Eq., Book I, ch. 3, sec. 3, note E, referring to Bond V. Kent, 2 Vern., 2oi ; Towell v. Heelis, Ambl., 724 ; Nairn v. Prowse, 6 Ves., 752 ; Blackburn v. Gregson, i Bro., 420 ; Mackreth v. Symmons, 15 Ves., 329; Covvell V. Simpson, 16 lb., 278; Great v. Mills, 2 Ves. and Bea., 306; '^^dk'i. ex parte, I Mad., 356 ; Gilman v. Brown, i Mason, 214; S. C., 4 \Vheat., 255 ; Wragg v. Comp. Gen., 2 Desau. Ch., 509; Stouffer v. Coleman, i Yeates, 398. 28 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 2 2. So, a contract to indemnify one against a pecuniary liability may be specifically enforced, although its performance is secured by a penalty.' § 2 2. Agreement to pay liqtiidated damages. — Notwith- standing the contract stipulates for the payment of liqui- dated damages in case of failure to perform, the court may decree specific performance,, unless an option for payment instead of performance be given in the contract.'' Where a lessee agreed to grant an under-lease, and that, if the landlord refused a license required for that purpose, he would pay one thousand pounds by way of liquidated dam- ages, it was held that he could not escape specific perform- ance by paying the money instead of applying for the license.' So, where an agreement for the sale of land pro- vided that no building should be erected beyond a certain line, and in case of a violation of any of the covenants or stipulations, a specified sum should be paid as liquidated damages, an injunction was granted against building in breach of the agreement,* Where it was covenanted not to carry on, or be concerned in carrying on, the trade of saddler within ten miles of a certain town, "under a penalty of one hundred pounds, to be paid by way of liquidated ' Chamberlain V. Blue, 6 Blackf., 491. Where an administrator assigned a con- tract for the purchase of lands to the defendants, who covenanted and agreed to take up and cancel the contract, and to indemnify the administrator from all damage which he might sustain by reason of the contract, it was held that the administrator was entitled to a specific performance. Champion v. Brown, 6 Johns., Ch. 398. - Hull V. Sturdivant, 46 Me., 34. " Courts of equity will not suffer their juris- diction to be evaded merely by the fact that the parties have called a sum dam- ages, which is, in fact and intent, a penalty ; or. because they have designedly used language and inserted provisions which are in their nature penal, and yet have endeavored to cover up their objects under other disguises." Story's Eq. Juris., Sec. 1318. If the owner of land agrees in writing to convey it at a cer- tain price, and by another written agreement promises to forfeit a certain sum of money if he fail so to convey, equity will compel a conveyance upon perform- ance of the terms of the agreement by the other party. Dooley v. Watson, i Gray, 414. Where tenants in common made an agreement purporting to be signed by all, but in fact executed by and delivered as the deed of some of them only, it was held that it might be enforced against the latter, although it pro- vided for the forfeiture of a certain sum as liquidated damages in case of breach. Hooker v. Pynchon, 8 lb., 550. " Long V, Bowring, 33 Beav., 585. ■" Cole v. Sims, 5 De G. M. &: G., i. §§ 23, 24- STIPULATIONS IN LEASE HOW REGARDED. 29 damages for every such offence," and the covenantor en- gaged as a journeyman for another saddler, it was held a breach of the covenant, and that the covenantee was enti- tled to an injunction/ So, a bond having been given by a solicitor's clerk to his employe in the sum of one thousand pounds, to be paid in case the obligor should carry on the business of solicitor within a certain distance, it was held that the bond was not designed merely to secure the price of practicing, but to prevent it, and an injunction was granted.' § 23. When contract deemed optional. — If the agree- ment be construed as giving to the party the option to do the act or pay a certain sum, equity will not interfere. In determining the question, the court will have regard to the whole agreement, and not merely look at the language ex- pressing the penal sum. It may treat the word "penalty" as meaning liquidated damages,^ or the words "liquidated damages" as meaning a penalty.* It may do this, notwith- standing the contract be alternative in its form, if the court can clearly see that the contract is to perform one of the alternatives. Where, for instance, the contract was for the renewal of a lease for a term of three years, or to answer in damages, specific performance of the lease was decreed ; the alternative only expressing what the law would imply." § 24. Stipulations in lease how regarded. — When it is ' Jones V. Heavens, L. R. 4, C. D. 636. "^ Howard v. Woodward, 34 L. J. C, 47 ; but see Nobles v. Bates, 7 Cow., 307 ; Dakin v. Williams, 22 Wend., 201. ^ Jones V. Green, 3 Y. & J., 298. ■* Cole V. Sims, supra ; Lampman v. Cochran, 16 N. Y., 275. ^ Finch V. Earl of Salisbury, Finch, 212. Equity will withhold or grant relief according as the plaintiff can or cannot be fully compensated by the payment of damag-es. Skinner v. White, 17 Johns., 357; Skinner v. Dayton, 2 Johns. Ch., 431 ; Hackett v. Alcott, i Call, 533; City Bank of Baltimore v. Smith, 3 Gill & Johns., 265 ; Moore v. Platte County, 8 Mo., 467. In a case free from fraud, the intention of the parties, if it can be ascertained, must govern as to whether the sum specified is to be regarded as a penalty or as liquidated damages. Durst V. Swift, 11 Texas, 273; Cothreal v. Talmadge, 9 N. Y., 557 ; Bagley v. Peddie, 16 lb., 469. Contra, jaquith v. Hudson, 5 Mich., 123. When it is doubtful what the parties really intended, the inclination of the court is to regard the amount named as a penalty. Foley v. Keegan, 4 Iowa, i. 30 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 24. Stipulated in a lease that in case the lessee shall violate a covenant contained therein, he shall pay an increased rent, it is regarded as in the nature of liquidated damages, and it has been held that upon an action brought to recover a sum thus reserved, a court of equity ought not to interpose, or give any relief." Accordingly, where a lessee covenanted not to plough any land, and in case he did, to pay twenty shillings an acre every year, the court refused to enjoin him from ploughing the land.'' So, where a lease was made sub- ject to an increased yearly rent in case the lessee did not manage the farm in a certain prescribed way, and also, in case during the last three years of his term he should sow more than seventy acres of clover in one year, to an addi- tional rent of ten pounds a year for every acre above the seventy acres, it was held that the additional rents were in the nature of liquidated damages.' So, where a lessee cove- nanted not to erect a weir, under the penalty of double the annual rent, to be recovered by distress, this was held to be liquidated damages ; the power of distress being regarded as a strong circumstance in favor of that view.* Exceptions to the rule, owing to the peculiar circumstances of the case, have occurred : as where the lessee had covenanted not to plough ancient meadow, or if he did, to pay an increase of rent, the court, upon his threatening to plough, granted an injunction.' If the agreement would be unreasonable un- less the person stipulating to pay the sum had an option, this will be a strong circumstance for regarding the agree- ment as alternative. Where an administratrix covenanted, under a penalty of seventy pounds, to renew a sub-lease as often as she obtained a renewal of the original lease, and it appeared that the fines on the head lease were raised on re- newal according to the then value of the property, so as to render her covenant unreasonable, except upon the construc- 'Rolfe V. Peterson, 2 Bro. P. C, 436. " Woodward v. Gyles, 2 Vern., 119. ^ Jones V. Green, 3 Y. and J., 298. ^Gerrard v. O'Reilly, 3 Dr. and VV., 41J. ; French v. Macale, 2 lb., 269. ' Webb V. Clarke, cited, i Fonbl. Eq , 1 54. § 25. WHEN SUM RESERVED DEEMED A PENALTY. 3 1 tion of its giving her an option, the court treated the sum as Hquidated damages/ When a sum is made payable if certain things are not done, and the performance is also fur- ther secured by a penalty, the first sum will be treated as liquidated damages ; ' though in one case, the court, not- withstanding this circumstance, decreed that the agreement should be specifically performed." Where it is stipulated in a lease that, in addition to an increased rent, the act pro- vided against shall be a forfeiture of the covenantor's inter- est, the sum is deemed a penalty, and not liquidated damages.* § 25. When sum reserved deemed a penalty. — When the penalty is small compared with the value of the subject of the contract, it is a reason for regarding the sum reserved as not in the nature of an alternative agreement' Where a man, entertaining doubts as to what estate he should in- herit, upon the marriage of his daughter, entered into a bond in five thousand pounds, with a condition to settle one-third of the property he should derive from his father, the agree- ment was specifically enforced. ° In another case, in which the condition recited an agreement for a settlement com- prising a sum of money, and also real estate, with a penalty double this sum, but without any reference to the real estate, specific performance was decreed of the agreement.' So, where a contract for sale contained a proviso, that, if either party broke the agreement, he should pay one hundred pounds to the other, specific performance was decreed, not- 'Magram v. Archbold, i Dow, 107. = Ranger v. Gt. Western R.R. Co., 5 House of Lds., 73. 'Chilliner v. Chilliner, 2 Yes. Sen., 528. "French v. Macale, 2 Dr. and W., 269. A court of equity will not enforce specific performance of a condition in a contract of sale, the non-fulfihnent of which will forfeit the estate. As the grantor has fixed his own conditions, he can forfeit the estate at his pleasure. Woodruff v. Water Power Co., 10 N. J. Eq., 489. Equity will not enforce a forfeiture. Warner v. Bennett, 31 Conn.. 461 ; Lefforge v. West, 2 Ind., 514; Smith v. Jewett, 40 N. H., 530; White v. Port Huron, etc., R.R. Co., 13 Mich., 356; Fitzhugh v. Maxwell, 34 lb., 138; Orrv. Zimmerman, 63 Mo., 72 ; Palmer v. Ford, 70 III., 369; Beecher v. Beecher, 43 Conn., 556 ; and the court often interposes to prevent the enforcement of a forfeiture at law. Keller v. Lewis, 53 Cal., 113. ** Chilliner v. Chilliner, supra. "Hobson v. Trevor, 2 P. Wms., 191. ^ Prebble v. Boghurst, i Swanst., 309. 32 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 26. withstanding the defendant insisted that it was the inten- tion of both parties, that upon either paying one hundred pounds, the agreement should be void.' Where the penalty, if paid, will go to a different person from the one for whose benefit the agreement is entered into, it will be deemed a strong circumstance against regarding the agreement as alternative in its nature. A father having, on the marriage of his son, given a bond, in the penalty of twelve hundred pounds, for the payment of six hundred pounds to the wife's father, his executors or administrators, if the obligor did not convey certain lands for the benefit of the husband and wife, and their issue, it was held that as the six hundred pounds paid, would not go to the husband and wife and their issue, but to the wife's father and his representatives, the obligor was not at liberty to pay it or settle the lands at his elec- tion, but must perform the agreement to settle." If the sum reserved be single, and the subject of the stipulation in its nature continuing or recurring, the sum will be re- garded as a penalty." The plaintiff and defendant being partners, and it having been agreed by them that the plain- tiff should alone conduct the business, and that the defend- ant should have the use of a certain room in the house whenever he desired, and the plaintiff having given the de- fendant a bond in five hundred pounds, it was held to be a security, and the court restrained a suit for the penalty, and granted an issue quantum danuiificatus to ascertain the damages.' § 26. Cozirse pursued when penal sitm is enforced by injtinction. — When specific performance of stipulations protected by a penal sum is enforced by injunction, the court on an interlocutory application to dissolve the in- junction will not decide the question whether the sum is a penalty or liquidated damages, but will only consider whether there is ?i prima facie case for an injunction, and Howard v. Hopkins, 2 Atk ,371. "Chilliner V. Chilliner, supra; Roper v. Bartholomew, 12 Price, 797. ' French v. Macale, 2 Dr. and W., 269. ■* Sloman v. Walter, i Bro. C. C, 418. § 2 7- RULE IN RELATION TO AGREEMENTS TO BUILD. ^;^ whether more mischief will be done by granting than by withholding it." As a party is not entitled under the con- tract to both the liquidated damages or penalty, and to specific performance, or to an injunction, for the same breach, the court, in granting an injunction, will impose on the plaintiff the terms of not claiming the damages or penalty ; and a recovery of the liquidated damages for a breach will preclude him from afterward obtaining an in- junction." § 27. J^ii/e in relation to agreements to build. — Building contracts will not in general be specifically enforced.' There is said to be a dictum of Justice Jenny to the con- trary, in a case decided in the eighth of Edward IV. ; and Lord Thurlow maintained the same view." The rule is now, however, well settled, on account of the uncertainty of such contracts, and the inability of the court to carry them out." It has been said, '' There is no case of a spe- cific performance decreed of an agreement to build a house, because if A. will not do it, B. may. A specific performance is only decreed where the party wants the thing in specie, and cannot have it in any other way.'" Specific performance was refused of a contract for the making of a branch railroad, which was entered into dur- ing the pendency of a bill before Parliament, when several of the directors thought of withdrawing the bill, and, as the plaintiff alleged, would have done so but for the con- tract in question.' Where a person agreed to grant a lease as soon as the other party built a house of a certain value, ' Cole V. Sims, 5 De G. M. & G., i. ' Sainter v. Ferguson, i M. & G., 286. ^ Wilkinson v. Clements, L. R. 8, Ch. 96 ; City of London v. Southgate, 38 L. J. C, 141 ; Mastin v. Halley, 61 Mo., 196; Ross v. Union Pacific R.R. Co., I Woolw., 26. * Buxton V. Lister, 3 Atk., 385 ; City of London v. Nash, lb., 512 ; S. C. r, Ves. Sen. 12. * Paxton V. Newton, 2 Sm. & G., 437 ; Lucas v. Commerford,, 3 Bro. C. C, 166 ; Mosely v. Virgin, 3 Ves., 184. ® Per Kenyon, M. R., in Errington v. Aynesley, 2 Bro. C. C, 343. ' South Wales R.R. Co. v. Wythes, i K. &. J., 186;. S..C. 5„De G. M. &. G.. 34 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 28. " according to a plan to be submitted to and approved by the lessor," specific performance at the suit of the lessor was refused/ A decree for the specific performance of a contract to expend a certain sum in building, which was uncertain as to the particulars of the building, was de- nied.' But the execution of a lease to contain covenants to build according to an agreement to that effect, will be decreed so as to give the lessor a remedy upon the cove- nants/ It is said that " in Scotland many contracts to build are specifically performed, in respect of which equity would decline jurisdiction in England, the Scotch courts appointing some properly qualified person under whose superintendence the work is directed to be executed/" § 28. When building contracts will be enforced. — If the w^ork to be done is clearly defined, and the plaintiff has a material interest in its execution, which cannot be ade- quately compensated in damages, specific performance will be decreed/ Where a man, having entered into articles with a builder, died before performance of the contract, it was held that his heir might maintain a suit against the ^ Brace v. Wehnert, 25 Beav., 348, ^ Moseley v. Virgin, 3 Ves., 184. ^ City of London v. Southgate, 38 L. J. C, 141. * Fry on Specif. Perform., p. 20 ; Clark v. Glasgow Assurance Co., i M'Queen, 668. '•' It was maintained by an eminent English judge that where the covenant to build or rebuild is definite as to size, materials, etc., it ought to be enforced. Lord Rosslyn in Moseley v. Virgin, supra. Mr. Stoiy takes the same view, on the following grounds : " If the suit is brought before any building or re- building by the party claiming the benefit of the covenant, the damages must be quite conjectural, and incapable of being reduced to any absolute certainty ; and if the suit is brought afterward, still the question must be left open, whether more or less than the exact sum required has been expended upon the building, which inquiry must always be at the peril of the plaintiff. Such a covenant does not admit of any exact compensation in damages from another circum- stance : the changing value of the materials at different times, according to the various demands of the market. It seems against conscience to compel a party, at his own peril, to advance his money to perform what properly belongs to an- other, when it may often happen, either from his want of skill or means, that at every step he may be obliged to encounter personal obstacles, or to make per- sonal sacrifices, for which no real compensation can ever be made. In all such cases, courts of equity ought not to decline the jurisdiction, whenever the remedy at law is doubtful in its nature, extent, operation, or adequacy." Story's Eq. Juris., sec. 728. Referring to Stuyvesant v. Mayor, etc., of New York, 1 1 Paige Ch., 414. § 2g. AGREEMENT BETWEEN VENDOR AND VENDEE. 35 personal representative of the ancestor and the builder, the contract savoring of the realty.' And specific perform- ance of a contract to build was decreed against a tenant who, having agreed to rebuild the farm-house, had done so on his own land instead of on his landlord's.' In another case the defendant was compelled to alter the elevation of a house which had been erected in contravention of a covenant.' Where a contract was made between several parties to build a tavern at their joint risk and expense, and for their joint benefit, and one of the parties furnished the land to build upon, and performed his part of the contract, it was held that he was entitled to a decree for specific performance ; the others objecting that a change of circumstances had rendered the project unad- visable.' A railroad company may be compelled to per- form their agreement to construct and maintain an arch- way under their line to connect lands of the plaintiff sev- ered by the railroad ;' or to make such roads and ways through the land as may be necessary to connect severed portions." § 29. Where the agreement to btnld is between vendor and vendee. — There is a distinction between a contract to build a house and a contract of sale, with a stipulation to erect a building or do certain work. Where A. agreed to sell land to B., and to make a road of which A. was to have the use, and B. was to erect a house on the land which should cost three thousand pounds, it was held that the contract might be specifically enforced.' By the terms of a written agreement, A. was to do the brick-work and plastering upon sixteen tenements, and, on completion, B. was to give to A. a deed of three of the tenements. A. having performed his part of the contract, it was held that ' Holt V. Holt, 2 Vern., 322. "^ Pembroke v. Thorpe, 3 Swanst., 437, note. ^ Franklyn v. Tuton, 5 Mad., 469. * Birchett v. Boiling, 5 Munf. Va., 442. "* Storer v. Gt. Western R.R. Co., 2 Y. & C. C. C, 48. * Sanderson v. Cockermouth & Workington R.R. Co., 11 Beav., 497. ' Wells V. Maxwell, 32 Beav., 408 ; Affd. 9, Jur, N. S., 1021. 36 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 3O. he was entitled to ^ decree ; that, as the houses w' ere of equal value, the court might designate which of them should be conveyed ; and that A. was entitled to a deed in fee simple, with a covenant against incumbrances made or suffered by B.' Where a railroad company purchased land upon the terms of making thereon a road and wharf, spe- cific performance was decreed.' An agreement by a rail- road company with the owner of land through which the road was to pass, to construct and maintain a siding, wnth necessary approaches for public use, was enforced as to the construction of the siding/ So, where a railroad company agreed with the vendor of land that there should be forever thereafter maintained thereon a first-class station, it was de- creed that the company should supply the necessary accom- modation for such a station, to be ascertained at chambers." When the suit is brought by the purchaser, the contract is sometimes virtually enforced by permitting the purchaser to do the work, and to deduct the cost from the purchase- money." § 30. Effect of part performafice on agreement to build. — The fact that the contract has been partly performed, and the parties cannot be restored to their original position, wnll sometimes induce the court to enforce it when it would not otherwise have done so. W^here, on a sale of real es- tate, the purchasers covenanted to make a road and erect a market-house on the land without delay, and they took pos- session and made the road, but neglected to build the mar- ket-house, it was held that they must perform their con- tract in specie." In the foregoing case, the purchasers not ' Ellis V. Burden, i Ala., 458. " Wilson v. Furness R.R., L. R. 9, Eq. 28. ' Lytton V. Gt. Northern R.R. Co., 2 K. & J., 394. ' Hood V. Northeastern R.R. Co., L. R. 8, Eq. 666. ^ Wells V. Maxwell, supra. " Price V. Corp. of Penzance, 4 Hare, 506. In a deed from A. to B., A. re- served, from the premises conveyed, the right to draw a certain quantity of wa- ter at all times when B. or his successor should not be using sufficient water for the accommodation of the factor)' below which was owned by A. There was a provision in the deed, in connection with the reservation, that B. and his § 31- RULE AS TO AGREEMENTS TO REPAIR. 2)7 only had the full benefit of the contract, but the vendor, having parted with the land, could not do the work which the purchasers had contracted to do, and so ascertain the amount of damages sustained by their non-performance. But the court cannot grant relief on the ground of part performance, when it has no jurisdiction over the original subject matter of the contract.' § 31. Rule as to agreements to repair. — The specific per- formance of covenants to repair will not usually be decreed, for the reason that, with rare exceptions, there is an ample remedy at law.' So, relief will not be granted against the forfeiture by a tenant for a breach of a covenant to repair, when the repairs must be made as a condition of the relief, and it is necessary for the court to entertain the question of the sufficiency of them.' Where, however, a lessee cove- nanted to repair after notice, and the lessor, having given notice, afterward waived the default of the lessee, by con- tinuing to negotiate, the court relieved against the forfeit- ure.' Specific performance of a covenant, in the lease of successor should keep a spout ten inches square at the bottom of the ditch lead- ing to his grist-mill, to which A. should at all times have access, for the purpose of exercising the right reserved in the deed. A. having conveyed his factory and the land connected with it to C, together with all the rights and privileges spe- cified in the deed from A. to B., it was held that C. might maintain a suit in equity to compel B. to put in the spout. Randall v. Latham, 36 Conn., 48. ■ South Wales R.R. Co. v. V^ythes, i K. & J., 186. '^ City of London v. Nash, 3 Atk., 512 ; Lord Abinger v. Ashton, L. R. 17, Eq. 376. An agreement to make repairs on a mill, pursuant to specifications, will not be specifically enforced, for the reason that the doing so would be diffi- cult, if not impracticable. Reed v. Vidal, 5 Rich. Eq., 289. A court of equity has no jurisdiction to enforce specific performance of an agreement by a lessor, contained in the lease, to repair damages caused by a fire. Beck v. Allison, 56 N. Y., 367. Were the court to attempt to do this, it must first determine what repairs are to be made, when, and how, and enforce performance by attachment as for contempt, in case of disobedience. " Then will arise the question, whether there has been substantial performance, and, if found not, whether the defendant has any such excuse therefor, as will exonerate him from the contempt charged ; and in case of performance, but not in as beneficial a manner as adjudged, the compensation that should be made for the deficiency. It is obvious that the execution of contracts of this description, under the supervision and control of the court, would be found very difficult, if not impracticable, while the remedy at law would, in nearly all, if not in all cases, afford full redress for the injury." Ibid., per Grover, J. ^ Hill v. Barclay, iS Ves., 59. * Hughes V. Metropolitan R.R., 46 L. J. C, 583. 38 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 3 I. a gravel pit, to make good the ground at the end of the lease, was refused, for the reason that the matter in contro- versy was "nothing more than the sum it would cost to put the ground in the condition in which, by the covenant, it ought to be.'" But specific performance of an agreement to execute a lease to contain a covenant to repair, will be de- creed, so as to give a remedy for not repairing/ Where the repairs of a canal and arch for the benefit of the lessee of a mill interested in them, were incidental and necessary to the enjoyment of a right of the plaintiff, which was the subject of a distinct covenant, a mandatory injunction was granted against the violation of the right by the continu- ance of the non-repair." Specific performance will not be decreed of a charter party providing for the choice of the crew and the repairing of a ship to make it seaworthy ;" nor of the covenants in a farming lease as to repairs, fences, and the course of husbandry ; ' nor of a contract to allow the use of a dock for the repair of a ship.* Upon a bill filed by a lessor for the specific performance of a contract to take a lease if the house were put "in thorough repair," and the drawing-rooms "handsomely decorated, according to the present style," it was held that the terms employed w^ere too indefinite to be enforced.' Specific performance of a covenant by a landlord to make repairs may be decreed, when it appears that the tenant will otherwise be perma- nently injured.' Where, in a contract for a lease, it was stipulated that the lessor should put the house "in substan- tial and decorative repair," specific performance was decreed in behalf of the lessee, with an inquiry whether the repairs had been properly executed, and, if not, then an inquiry as to damages." Equity will enforce specific performance by ' Flint V. Brandon, 8 Yes., 1 59. * Paxton v. Newton, 2 Sm. and G., 437. ^ Lane v. Nevvdigate, 10 Ves., 192. ^ De Mattos v. Gibson, 4 De G. and J., 276. ^ Raynerv. Stone, 2 Eden., 128. ^ Merchant's Trading Co. v. Banner, L. R. 12, Eq. 18. ' Taylor v. Portington, 7 De G. M. and G., 328. * Valloton V. Seignett, 2 Abb. Pr., 121. * Samuda v, Lawford, 8 Jur. N. S., 739. §§ 32> 33- AGREEMENTS FOR PERSONAL SERVICES. 39 the defendant of a covenant to make improvements upon his own land, where the injury to the complainant from the breach of the covenant is such that it cannot be ade- quately compensated in damages.' § 32. Agreement to insure. — Specific performance may be decreed of a contract to insure ; and, if a loss has occurred, the court will not turn the plaintiff over to an action at law, but will decree payment." § 33. Agreements for personal services. — Courts of equity formerly entertained jurisdiction to enforce con- tracts of hiring and service, notwithstanding the difficulty of carrying out such contracts. Thus, specific performance was decreed of a contract entered into by the East India Company to employ a man as a packer.' So, where a skilled person entered into a contract with a company en- gaged in the manufacture of brass, whereby he bound him- self during his life as their manager, the company agreeing to pay him a certain sum for every hundred weight of brass wire made by him, or by any other person, for them during his life, payment was decreed for his past services, and specific performance for the future, upon his again taking charge of the works pursuant to the contract.* But "it is obvious that if the notion of specific performance were ap- plied to ordinary contracts for work and labor, or for hiring or service, it would require a series of orders, and a general ' Stuyvesant v. Mayor, etc., of New York, 11 Paige Ch., 414. An agreement in a written lease that the lessee shall, after the expiration of the term, have fair compensation for all improvements made by him upon the premises, is such an agreement as equity will enforce against the lessor, provided specific performance is capable of being made, and the complainant can have adequate relief only in equity. But alleged infringements on the rights of the lessee, during his term, are not proper subjects to be drawn in question, and will not be allowed by the court. Berry v. Van Winkle, 2 N. J. Eq., i Green, 269. ^ Mead v. Davison, 3 Adol. & El., 303 ; Carpenter v. Mu. Safety Ins. Co., 4 Sandf Ch., 408 ; Perkins v. Washington Ins. Co., 4 Cow., 645 ; 23 Wend., 18, 25 ; Tayloe v. Merchants' Fire Ins. Co., 9 How. U. S., 405 ; Union Mu. Ins. Co. V. Commercial Mu. Ins. Co., 2 Curtis, C. C, 524; 2 Phil, on Ins., 582; i Duer on Ins., 66. ^ East India Co. v. Vincent, 2 Atk., 83. ■• Ball v. Coggs, I Bro. P. C, 140. As to the validity of contracts of service for life, see Wallis v. Day, 2 M. and W., 273. 40 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 34. superintendence, which could not conveniently be under- taken by any court of justice.'" The specific performance of a contract involving personal services, skill, or confi- dence, will not, therefore, as a rule, be decreed ; nor a party be enjoined from terminating such a contract.'' The fol- lowing contracts, specific performance of which was refused, may be mentioned as examples : — to report law cases for publication ; ' to furnish drawings for maps ; ' to perform at a theatre ; ' as to the work of an apprentice, or instruction by the master ; " to employ the lessor of a wharf as manager in the business — the court refusing to enforce the contract even as to the lease, because it could not enforce the em- ployment ; ' as to the working of quarries ; * and coal mines." Where parties agreed for a certain sum to work the line of a railroad, and keep the engines and roUing stock in repair, a decree for the specific performance of the contracf was refused. ** We are asked," said the court, '*to compel one person to employ against his will, another as his confiden- tial servant, for duties with respect to the due performance of which the utmost confidence is required. Let him be one of the best and most competent persons that ever lived, still, if the two do not agree, and good people do not al- ways agree, enormous mischief might be done."'" § 34. Agreements capable of being revoked. — Specific per- formance will not be decreed of a revocable contract, for * Selbome L. C. in Wolverhampton and W. R.R. v. London and N. W. R.R., L. R. 16, Eq. 439. " Stocker v. Brocklebank, 3 M'n. and G., 250 ; Chin nock v. Sainsbury, 30 L. J. C, 409 ; Pickering v. Bishop of Ely, 2 Y. and C. C. C, 249. ' Clarke V. Price, 2 J. Wils., 157. ^ Baldwin v. Useful Knowledge Soc, 9 Sim., 393. ^ This has been held in several cases in this country. But in England, a con- tract to perform at a certain theatre will now, it seems, be enforced by an in- junction restraining the defendant from performing anywhere else, though it was formerly held otherwise. See Post, § 117. ' Webb V. England, 29 Beav., 44. ^ Ogden v. Fossick, 32 L. J. C, 73. « Booth V. Pollard, 4 Y. and C. Ex., 61. ° Pollard V. Clayton, I. K. and J., 462. '° Knight Bruce L. J., in Johnson v. Shrewsbury & Birmingham R.R. Co., 3 De G. M. and G., 914. § 34- AGREEMENTS CAPABLE OF BEING REVOKED. 4I the reason that it would be an idle exercise of power by the court.' Where the registrar of a consistory court agreed to grant a deputation of his office, it was held that as such a deputation was in its nature revocable, it could not be en- forced.' The rule under consideration is applicable to agreements to enter into partnership which do not specify the duration of the partnership, it being competent for either party to dissolve the relation whenever he sees fit.' Specific performance was accordingly refused of an agreement entered into with a company to take a certain number of shares and to execute the deed of settlement when required, the defendant being able by the rules of the company, to withdraw within fourteen days after becoming a partner.* It is on the same principle, that specific per- formance will not be decreed of a contract which contains such a covenant that the party objecting to. the perform- ance, may immediately deprive the other of the benefit of the agreement, as a contract for a lease that is to contain a proviso for re-entry on the breach of a covenant which the plaintiff has already broken.' A violation of the articles during the partnership may, however, be restrained by in- junction': — such as an intentional and continued neglect to ^ Express Co. v. R.R. Co., 9 Otto, 191. ^ Wheeler V. Trotter, 3 Swanst., 174. Note. ° Hercy v. Birch, 9 Ves., 357 ; Scott v. Rayment, L. R. 7, Eq. 112 ; Meason v. Kaine, 63 Pa. St., 335. Plaintiff and defendant entered into an agreement where- by the latter was to convey an undivided interest in real and personal property held by him in common with third persons, and the plaintiff was to become, for an indefinite time, a partner with the defendant and such third persons in operat- ing the property. It was further provided that the defendant should advance, from time to time, the plaintiff's quota of the funds necessary for the business and the improvement of the property ; that the plaintiff should manage and di- rect the business and improvements, and employ his time, skill, judgment, and experience, therein, and that the amount advanced for his benefit in carrying on the business, should be paid by his skill and services in the concern and the gains obtained in the enterprise. Held, that as the agreement was incapable of being enforced on both sides, the decree of the court below dismissing the bill must be affirmed with costs. Birch v. Smith, 29 Mich., 166. * Sheffield Gas Consumers Co. v. Harrison, 17 Beav., 294. ^ Jones V. Jones, 12 Ves., 188. ^Dietrichsen v. Cabburn, 2 Phill., 52. " It is impossible to make persons who will not concur, carry on business jointly for their common advantage. It is that which makes everything of this kind exceedingly uncertain. It is that which 42 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 34. insert the name of a partner in the firm name ;' or the rais- ing of money by one of the partners for his private use on the credit of the firm ;^ or engaging in other business con- trary to agreement;' or seeking unreasonably and in bad faith, a sudden dissolution which will be productive of irre- parable injury ; * or doing any acts during the continuance of the partnership injurious to it." The court will secure to a partner an interest in property to which, by the partner- ship agreement, he is entitled/ So, the execution of a deed of partnership, according to the terms agreed, will be de- creed in order to secure the rights of the parties under it ;' but not unless the terms of the partnership have been distinctly settled for a definite time/ A shareholder in a company may be specifically compelled to take the shares allotted to him." An agreement that, upon dissolution, a certain book of the firm shall belong to one of the members, and the other have a copy of it, may be enforced." A contract for a partnership to continue for a definite period will be specifically enforced, and the parties be de- creed to execute a proper instrument for that purpose ; and, if necessary, the defendant will be restrained from carrying makes the court, on all such occasions, exceedingly anxious ; an anxiety I be- lieve that has been felt by every Judge who has ever sat in a court of equity, that when these disputes do arise, the parties should, if possible, come to some arrangement between themselves to do that for the common benefit, which the court cannot do otherwise than at the common expense. But if the parties insist on having a declaration of their rights, the court has over and over again enter- tained the jurisdiction, and must entertain the jurisdiction, unless some one or two, or several partners, are to be permitted to do just what they like with the partnership rights and interests." Lord Langdale M. R, in England v. Curling, 8 Beav., 129. ' Marshall v. Colman, 2 J. and W., 266. ^ Ibid. ^Somerville v. Mackay, 16 Yes., 382. ^Chavany v. Sommer, i Swanst., 511. JVoie. ^ Charlton v. Poulter, 19 Ves., 148 ; Goodman v. Whitcomb, i J. and W., 389. " Somerby v. Buntin, 118 Mass., 279. ' England v. Curling, supra ; Wilson v. Campbell, 10 111., 383 ; W^hitworth v. Harris, 40 Miss., 483, " Hercy v. Birch, 9 Ves., 357. ' Pinkett v. Wright, 2 Hare, 130; New Brunswick R.R. v. Muggeridge, 4 Drew, 686. '" Lingen v. Simpson, i Sim. and Stu.,600. § 35- RULE AS TO THE SALE OF A GOOD- WILL. 43 on the business under the partnership style with other per- sons, and from pubHshing a notice of dissolution.' Spe- cific performance was decreed of a contract to execute a mortgage containing an absolute power of sale, in con- sideration of money due, though with hesitation on the part of the court, as the mortgagee might sell the property immediately.'' Contracts of partnership which are illegal as amounting to sales of office, or contravening the laws regulating trade, or otherwise, will of course not be en- forced." So, where the agreement has reference to a busi- ness concerning which the court has no powder to enforce its own orders, it will decline to interfere.' § 35. Rule as to the sale of a good will. — Specific perform- ance of a contract for the sale of the good-will of a busi- ness disconnected from the business premises, or from any specific stock in trade, or trade secret, will not be decreed, on account of the uncertainty of the subject matter, and the consequent inability of the court to deal with it." But " where a good- will is entirely or mainly annexed to the premises, and the contract is for the sale of the premises and good-will, such a contract is a fit matter for a decree in a suit for specific performance;"' "the probability being 'England v. Curling, supra. For forms of a decree and injunction, in such cases, see Ibid. In this case, Lord Langdale said that the agreement for a part- nership was binding on the parties and ought to be specifically enforced, and he so directed. Biit the decree only went in terms to the ordering of a proper partnership deed to be executed, and the continuing of an injunction which had been obtained against one partner acting contrary to his agreement. The cir- cumstances of the case made it highly inequitable for the partner thus to do. But in the ordinary case of a mere executory agreement for a partnership, it is questionable whether such an injunction would be granted. * Hermann v. Hodges, L. R. 16, Eq. 18. 'Hughes V. Statham, 4 B. & C, 187 ; Knowles v. Houghton, il Ves., 168. * NewbeiTy V. James, 2 Men, 446. See Williams v. Williams, 3 lb., 157; Green v. Folgham, i Sim. & Stu., 398 ; Yovatt v. Wynyard, i J. & W., 394 ; ante, § n; post, §§49, 117. ^Baxter v. Connoly, i J. & W., 576; Bozon v. Farlow, i Men, 459; Coslake V. Till, I Russ., 376. °Kindersley, V. C, in Darbey v. Whitaker, 4 Drew, 134; Chissum v. Dewes 5 Russ., 29; Mummery v. Paul, i C. B., 316. 44 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 35. that the old customers will resort to the old place.'" And where the seller of the good-will of a business covenants not to carry on the same trade within certain limits, a breach of the covenant will be restrained by injunction." This was done in a case where a solicitor, in selling his business, agreed not to practice as a solicitor in any part of Great Britain for twenty years.' An agreement, for a valuable consideration, not to practice medicine w^ithin twelve miles of a certain place, was held not unreasonable, and a breach of it restrained." A coach-maker, having sold his share of the business to his partner, with an undertaking not to be concerned in any coach running from Reading to London, Lord Eldon, upon a bill filed for specific performance of the agreement, and for an injunction, granted the injunc- tion until the answer.' If the good-will consists of a trade secret, the seller will be restrained from disclosing or using it in fraud of the buyer.' The breach of a covenant by the purchaser of land, that the vendor should have the ex- clusive right to supply beer to any public-house built there- on, was restrained by injunction.' But where a party agreed not to sell water from a well to the injury of cer- tain water-works, the court declined to interfere, for the 'Lord Eldon in Cruttwell v. Lye, 17 Ves., 346. As to the nature of a good- will, see Potter v. Commrs. of Revenue, 10 Exch., 147 ; Allison v. Monkwear- mouth, 4 Ell. & BL, 13. "^ But not from setting up a similar business. Cruttwell v. Lye, supra ; Shackle v. Baker, 14 Ves., 468. Equity will restrain a person from setting up a trade in opposition to his agreement, although he has agreed not to do so under a penalty, even when he has paid the penalty ; a penalty being a mere security for the performance of the contract, and not the price for doing what a man has expressly agreed not to do. So the naming of a sum as liquidated damages would not in itself conclusively show that the parties contemplated the right to do the act upon payment of the amount. To hav-e that effect, it must appear from the whole contract that the stipulated sum was to be paid in lieu of per- formance of the agreement, and was an alternative which the covenantor had the option to adopt. Ropes v. Upton, 125 Mass., 258. See Dooley v. Watson, I Gray, 414 ; Hardy v. Martin, i Cox, 26, 'Whittaker v. Howe, 3 Beav., 383. ^McClurg's Appeal, 58 Pa. St., 51. See Butler v. Burleson, 16 Vt., 176; Beard v. Dennis, 6 Ind., 200. 'Williams v. Williams, 2 Swanst., 253. *Bryson v. Whitehead, i Sim. & Stu., 74. ' Catt v. Tourle, L. R. 4, Ch. 654. § 35- RULE AS TO THE SALE OF A GOOD-WILL. 45 reason that it would be necessary to inquire every time the water was sold, whether it was done with or without in- jury.' An agreement was entered into by several persons in the same trade, that one of them should make an offer for a public contract at a less price than the rest, and if successful, should take certain quantities of the required materials from the others. One of them having made an offer in breach of the agreement, and obtained a contract, an injunction was granted restraining him from carrying it out.'' An agreement not to write dramatic pieces for any other theatre than the Haymarket, was enforced by injunc- tion.' So, where an author, having sold a work, covenant- ed with the purchaser not to publish any other work to prejudice the sale of it. Sir John Leach, V. C, restrained the publication of another work by the vendor on the same subject, although such work was not a piracy of the original work ; and Lord Eldon restrained the publishers of the sec- ond work, upon proof that they had notice of the covenant* The sale of a patent will be enforced by compelling the seller to convey, and the buyer to pay the price.' The le- gality of a stipulation, in an agreement for the sale of the business of an attorney, to give to the party intending to carry on the business, the benefit of the name or recom- mendation of the party not engaged in it, was formerly questioned.' It is now, however, well settled, not only that such a contract is valid, but that it may be specifically en- forced by injunction, or otherwise.' The sale of the good- ' Collins V. Plumb, i6 Ves., 454. ^ Jones v. North, L. R. 19, Eq. 426. 'Morris v. Coleman, 18 Ves., 437. '' Barfield v. Nicholson, 2 Sim. & Stu., i, ^Cogent V. Gibson, 33 Beav., 557. 'Candler v. Carden, Jac, 231 ; Thornbury v. Bevill, i Y. & C. C. C, 584 ; and see GilfiUan v. Henderson, 2 CI. & Fin., i. 'Bunn V. Guy, 4 East., 190; Whittaker v, Howe, supra ; Aubin v. Holt, 2 K. & J., 66. In Bozon v. Farlow, i Mer., 473, Sir William Grant doubted the pro- priety of assisting a contract to sell an attorney's business, from its being a kind of breach of contidence on the part of the attorney, and against public policy. These doubts have often been entertained by other judges ; but such agree- ments have been sanctioned in numerous instances. See Nichols v. Stretton, 10 Q. B., 346 ; Mumford v. Gething, 7 C, B. N. S., 305. In Ward v. Byrne, 5 46 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § t^S, will of a trade, without any express provision in restraint of carrying on the same trade in the neighborhood by the person selling, will not entitle the court to restrain the ven- dor from carrying on the trade in the vicinity, unless the circumstances amount to actual fraud.' § 36. Enforcement of agreements for renewal. — A cove- nant for the renewal of a lease may be specifically en- forced,' though it was formerly held otherwise.' A lease provided that upon the expiration of the term the lessor should either pay the appraised value of the buildings, or renew the lease upon such terms as he should think proper ; and if the terms should not be acceptable to the lessee, he might remove the buildings. The lessor having offered to renew at an exorbitant price, upon a bill filed by the lessee, the court decreed a renewal of the lease at a reasonable rent.' But a covenant or agreement to renew on the part of the defendant must be distinctly and clearly shown, and it must appear that the plaintiff has not been wanting in diligence.' It will not be construed as amounting to an M. & W., 548, a coal- merchant's clerk having bound himself not to follow or be engaged in the business of coal-merchant for the space of nine months after he should leave the service of his employers, the bond, upon mature deliberation, was held void. A contract not to manufacture medicine was held valid. Gillis V. Hall, 2 Brewst., 342. 'Cruttvvell v. Lye, 17 Ves., 335 ; Williams v. Williams, 3 Men, 157 ; Canham V. Jones, 2 V. & B., 208. "^ Fumival v. Crew, 3 Atk., 83; Iggulden v. May, 9 Ves., 325 ; Willan v. Wil- lan, 16 lb., 84; Brown v. Tighe, 2 CI. & Fin., 396 ; Carr v. Ellison, 20 Wend., 178. * Somerv'ille v. Chapman, i Bro. C. C, 61 ; Tritton v. Foote, 2 lb., 636 ; Rees v. Dacre, cited (^ Ves., 332. Lord Thurlow thought that where a man entitled to an estate of inheritance agreed to make leases with a covenant for perpetual renewal, each lease to contain the same covenant forever, it could not be sup- posed that this was intended, and, therefore, it was not such a covenant as would be executed by the court. But Lord Eldon maintained that decided cases had established the rule that covenants of this character were to be spe- cifically performed. Willan v. Willan, supra. ' W^hitlock v. Duffield, 2 Edw. Ch., 366. * Where the lease provided for renewal on the dropping of one life, and the application for renewal was delayed until two had expired, it was held that the lessee had been guilty of such neglect as to disentitle him from specific per- formance. Bayley v. Corp. of Leominster, 3 Bro. C. C, 529. See Baynham v. Guy's Hospital, 3 Ves., 295. Although equity will relieve in case of mere lapse of time without misconduct in the lessee, or where the lessee has lost his right by the fraud of the lessor, yet it will not do so when there has been wiliul neg- § 36. ENFORCEMENT OF AGREEMENTS FOR RENEWAL. 47 agreement for a perpetual renewal unless the intention is free from all ambiguity.' In the following cases the cove- nant was held to be for a perpetual renewal : — To grant such further lease as the lessee should desire ;' to grant a new lease or leases, and so to continue the renewing of such lease or leases;' a lease for the lives of A., B., and C, with ajcovenant, on the death of any one of them, to grant a new lease for the lives of the survivors, and a new life to be named, such lease to contain all the covenants, including "this present covenant," which were contained in the original lease.* The proper form of a lease by trus- tees, in pursuance of their testator's covenant for perpetual renewal, even where the covenant stipulates that in every future lease there shall be inserted the like covenant for re- newal, is for the lease to recite the covenant, and to declare that the new lease is granted in pursuance of it.' A cove- nant for a renewed lease, to contain all the covenants in the original lease, does not import the insertion in the new lease of such a covenant for renewal as will make the original covenant operate as a perpetual renewal." A mere covenant to renew a lease at a specified rent does not carry with it the covenants of the old lease.' Where there is a covenant to renew a lease, the renewed lease need not con- tain a covenant for further renewal, unless the original lease contains an express covenant for perpetual renewal.' lect or refusal to renew. Lennon v. Napper, 2 Sch. & Lef., 682 ; Bateman v. Murray, cited 4 Bro. C. C, 417 ; Chesterman v. Mann, 9 Hare, 206. Notwith- standing there has been some laches on the part of the lessee, if it is excused by fraud, surprise, unavoidable accident, or ignorance which is not wilful, spe- cific performance will be enforced when the lessor's interest has not been preju- diced by the delay. Eaton v. Lyon, 3 Yes., 690. As to whether a breach of covenants in the lease will bar a renewal, see Trant v. Dwyer, 2 Bli. N. S., 11. ' Brown v. Tighe, supra ; Baynham v. Guy's Hospital, supra. "^ Bridges v. Hitchcock, 7 East., 245. ^ t'urnival v. Crew, stepra. * Hare v. Burges, 4 K. & J., 45. ^ Copper Mining Co. v. Beach, 13 Beav., 478 ; Hodges v. Blagrave, 18 lb., 404. ^ Hyde v. Skinner, 2 P. Wms., 196 ; Tritton v. Foote, supra ; Russell v. Dar- win, 2 Bro. C. C, 639, nole ; Moore v. Foley, 6 Yes., 232 ; Harnett v. Yielding, 2 Sch. & Lef, 549. ' Willis v. Astor, 4 Edw. Ch., 594. " Rutgers v. Hunter, 6 Johns., 215 ; Phyfe v. Wardell, 5 Paige Ch., 268. 48 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 2>7' The assignee of a lease is entitled to the specific perform- ance of a covenant to renew/ A covenant by a lessor to extend a lease, without naming the amount of rent, cannot be enforced in equity." § 37. I^u/e as to agreements concerning expectancies. — The possibility of succession has been held at law not to be a valid subject of disposition, and such a disposil»ion by the heir would be void at law, though the inheritance afterward fell to him.' Contracts of this nature were prohibited by the Roman law.' But an agreement to sell an estate, if it should be devised to the vendor by a person then living, was upheld by the Queen's bench.' In equity such con- tracts are regarded as valid, notwithstanding they may seem to have defeated the intentions of testators or to have been in fraud of parental authority." In a very early case, a cove- nant to settle an estate to which the covenantor had only an expectancy as heir, was specifically enforced after the descent of the lands.' A. and B. married two sisters, the presumptive heiresses of a very wealthy man who had made and revoked several wills, but who ultimately devised a large property to A. and only a small one to B. Before the will was executed, A. and B, had entered into an agree- 1 Robinson v. Perry, 21 Ga., 183. * Robinson v. Kettletas, 4 Edw. Ch., 67. ' Jones V. Roe, 3 Term. R., 93 ; vShep. Touch., 319; McCracken v. Wright, 14 Johns., 193; Davis v. Hayden, 9 Mass., 504. ^ Pothier Tr. Des. Oblig. Pt. I, Ch. i. Sec. 4. ° Cook V. Field, 15 O. B., 460. ® In Varick v. Edwards, 11 Paige Ch., 290, a formal conveyance of a possibil- ity or expectancy, though it had been ruled inoperative at law, was held good in equity. In jNIcWilliams v. Neely, 2 Serg. & R., 507, Tilghman, Ch. J., said that " If one enter into articles to convey in case subsequent events should make it lawful, there could be no doubt that in equity he would be decreed to convey when he afterward acquired the power." And see to the same effect Anderson v. Lewis, i Freem. Miss. Ch., 178; Baylor v. Com., 40 Pa. St., 37 ; Power's Appeal, 63 lb., 443; Mastin v. Marlow, 65 N. C, 695. CoJttra, Lowry V. Spear, 7 Bush. Ky., 451. An agreement by a husband to convey land belong- ing to his wife in which he is entitled to a life estate by the curtesy, the wife re- fusing to execute a deed, cannot be specifically enforced ; nor can he be com- pelled to convey his life estate in the same. McCann v. Jones, i Rob. Va., 256. Equity will not decree specific performance of an executory verbal contract where it depends on a future event which may never happen. Bradley v. Mor- gan, 2 A. K. Marsh, 369. ' Wiseman v. Roper, i Rep. in Ch., 154. §37- AGREEMENTS CONCERNING EXPECTANCIES. 49 ment for the equal division between them of what should be left to each. This agreement was specifically enforced, the court remarking that the agreement was not disappoint- ing the intention of the testator, as he did not design to put it out of either of the devisees' power to dispose of the estate after it should come to him, but, on the contrary, by implication, gave them such power/ So, likewise, the con- veyance of a contingency or possibility on the death of a sister unmarried was upheld.' The plaintiff and the de- fendant, the celebrated John Home Tooke, entered into a parpl agreement to divide what they should obtain from a testator, in pursuance of which the plaintiff had given to the defendant Tooke a note for four thousand pounds, which the latter had indorsed to the other defendant, Sir Francis Burdett, for value. It was held that the plaintiff had no equity to follow the note into the hands of the pur- chaser. It is said that the court expressed doubts whether the transaction between the plaintiff and defendant Tooke was not a fraud on the testator, and whether the court would at any rate assist in specifically enforcing such an agreement. But " the case has usually been treated as an authority for the validity of contracts relating to expectan- cies."' Two sons entered into an agreement for an equal division of what they might derive from their father, either during his life or after his decease, by will or otherwise. It was urged that this was a contrivance on the part of the sons to protect themselves from the consequences of mis- behavior and in fraud of parental authority. The agree- ment was, however, specifically enforced ; the court con- sidering that as the testator had the power to give property to his sons without the power of alienation, which he did not choose to do, he had allowed it to become liable to all of their antecedent contracts.' So, specific performance ' Beckley v. Newland, 2 P. Wms., 182 ; S. P. Hobson v. Trevor, lb., 191 ; but see Mercier v. Mercier, 50 Ga., 546. ^ Wright V. Wright, i Ves., Sen. 409. Per Lord Hardvvicke. ' Harwood v. Tooke, 2 Sim., 192 ; Fry on Specific Perform., 398, 399. * Wethered v. Wethered, 2 Sim., 183 ; see Houghton v. Lees, i Jur. N. S., 862. 4 50 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 39. was decreed of a covenant in the grant of an annuity for the covenantor's Hfe to charge the annuity on whatever he should become entitled to, by will or otherwise, in the event of his wife's decease, although such covenant related to a mere expectancy.' And agreements concerning the costs of proceedings in lunacy or the ultimate division of a lunatic's property have been upheld." § 38. Caution exei^cised as to agreement in relation to expectancy. — But contracts concerning expectancies will be scrutinized by the court, and only enforced when the cir- cumstances are such as to render the interference of equity obviously proper. Two young officers in the British army signed and exchanged a writing by which each charged his estate with one thousand pounds in favor of the other in case the other should survive him, the consideration being the mutual promise. A long time afterward they corre- sponded with a view to rescind the agreement, which, how- ever, was never done. It was held, that considering the nature of the transaction, the age and condition of the par- ties, and their subsequent correspondence, there was no equitable claim which ought to be enforced. But the court retained the bill a year, with liberty to the plaintiff to bring an action at law.' § 39. Agreement for expectancy terminates at death of party. — A contract in relation to an expectancy can only be enforced against the party in his life-time, such an agree- ment being purely personal. In an early case the court said : "The surrenderor not having any title whatever to the premises at the time of the surrender, his agreement would not raise a lien upon the land ; and, although the present plaintiffs might have been relieved if they had filed their bill against him in his life-time — that is, after the title had accrued, yet it does not follow that therefore they can be relieved against his heirs. Neither the land itself nor the 1 Lyde v. Mynn, I M. & K., 683. " Persse v. Persse, 7 CI. and Fin., 279. = Rvan V. Daniel i Y. & C. C. C. 60. §§ 4.0, 4T. CONTRACT TO DISPOSE OF PROPERTY BY \VILL. 5 1 conscience of the present defendants is bound by the act of the surrenderor.'" So, it has been held that though such a contract might create a personal Habihty, yet that there was no such interest as would pass by a bargain and sale to assignees in bankruptcy.' § 40. Provision by parents for children. — Defective con- veyances by parents as a provision for children have often been aided in equity, and the principle is applicable to broth- ers and sisters. Where a father agreed not to devise his real estate, but permit it to descend to his eldest son and heir at law, upon the express trust that in case the son should succeed as devisee to the property of a third person, he would convey the estate, which should thus descend to him from his father, to his younger brothers ; and the son, in pursuance of this agreement, executed a deed to his brothers which was defective ; it was decreed that he should make a good and sufficient conveyance to them." Where a parent, for the purpose of securing a provision for his two children, executed deeds of part of his estate to them, but retained the deeds in his possession, directing his wife to lodge them with the town clerk, for record, after his death, w^hich was done, there being no claim of a creditor or pur- chaser, it was held such an agreement as the court would enforce/ § 41. Contract to dispose of property by zvill. — A per- son may make a valid agreement binding himself to dispose ^ Morse v. Faulkner, 3 Swanst., 429 note. ^ Careleton v. Leighton, 3 Men, 667. ' Browne v. Browne, i Har. and Johns., 430. * Jones V. Jones, 6 Conn., iii. As the deeds were retained by the grantor in his own possession, the giving them into the custody of the town clerk for record was not a delivery of them. It would have been different if the deeds had been delivered to the wife before the grantor's death, as in that case the de- livery of them to the wife of the grantor, to take effect upon his decease, would, by legal operation, have been a delivery to the grantees themselves. Belden v. Carter, 4 Day, 66. But a voluntary conveyance made with a view to a family settlement, if there be no fraud on a third person, is binding in equity. Claver- ing V. Clavering, 2 Vern., 473; Broughton v. Broughton, i Atk., 625 ; Johnson v. Smith, I Ves., 314; Bunn v. Winthrop, i Johns. Ch., 329; Soverbye v. Arden, lb., 140. Accordingly, in Jones v. Jones, supra, as the transaction was in favor of the children of deceased, and intended as a provision by way of settlement, it was upheld. See Post, §§ 285, 286. 52 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 4I. of his property in a particular way by last will and testa- ment ; and a court of equity will enforce such an agree- ment by compelling the heir at law to convey the property in accordance with the terms of the contract ;' but such a contract, especially when it is attempted to be established by parol, is regarded with suspicion, and not sustained ex- cepting upon the strongest evidence that it was founded upon a valuable consideration, and deliberately entered in- to by the decedent' While, in some of the cases we have cited below, the courts refused to decree the specific per- formance of such an agreement, they all recognized the power of individuals to make binding contracts of this nat- ure, and relief was denied on other grounds. In the case of Lord Walpole v. Lord Orford,' there was an agree- ment to make mutual wills, and although its execution was not decreed because of its uncertainty and vagueness, no doubt was expressed as to the power of courts of equity to enforce such an agreement, nor of their inclination to do so, where it was sufficiently specific, and upon a proper consideration. An heir at law claiming a right to certain land, went to the tenant in possession, who likewise claimed an interest in the fee, and threatening to evict her at law, she promised that if she died without issue, she would leave him either a specified sum of money, or the land. Previ- ous to her death she devised the land to her second hus- band, who never had any notice of the agreement. A bill ' Logan V. Weinholt, 7 Bligh, N. S. i ; Rives v. Rives, 3 Dessaus Eq., 195 ; Izard V. Izard, lb., 116, note\ McClure v..McClure, i Pa. St., 378; Brinker v. Brinker, lb., 53 ; Logan v. McGinnis, 12 Pa. St., 32 ; Mundorff v. Kilbourn. 4 Md., 459 ; Wright v. Tinsley, 30 Mo., 389 ; Gupton v^ Gupton, 47 lb., 37 ; Sutton V. Hayden, 62 lb., loi ; Johnson v. Hubbell, 10 N.J. Eq., 2 Stock, 332 ; Frisby v. Parkhurst, 29 Md., 58 ; and see Lord Walpole v. Lord Orford, 3 Yes., 402 ; S. C. 7, D. and E. 138; Lewis v. Madocks, 8 Ves., 150; Fortescue v. Hennah, 19 lb., 71 ; Podmore v. Gunning, 7 Sim., 644; Moorhouse v. Colvin, 9 Eng. L. .'and Eq., 136; Harder V. Harder, 2 Sandf. Ch., 17; Carlisle v. Fleming, i Harring, 421. Contra, Stafford v. Bartholomew, 2 Carter, 153. '' Shakspeare v. Markham, 10 Hun. 311, referring to OgiK'ie v. Ogilvie, i Bradf., 356; Bowen v. Bowen, 2 lb., 336; Williams v. Hutchinson, 3 N. Y., 312 ; Robinson v. Raynor, 28 lb., 494 ; Parsell v. Stryker, 41 lb., 480 ; Lisk v. Sher- man, 25 Barb., 433 ; Cox v. Cox, 26 Gratt., 305 ; Sprinkle v. Hayvvorth, lb., 384. ^ Supra. §42. AGREEMENTS FOR SEPARATION. 53 was filed by the heir at law to have the agreement enforced, and it was decreed against the husband/ § 42. Agi^eements for separation. — A court of equity has jurisdiction to enforce the specific performance of an agree- ment for separation of husband and wife, by the execution of proper deeds for that purpose ;' or, if the deed has been executed, to enforce its stipulations ;' and to compel, by in- ^ Goilraere v. Battison, i Vern., 48. "^ Wilson V. Wilson, i House of Lds., 538 ; Affg-. S. C. 14, Sim. 405 ; 5 House of Lds., 40; 23 L. J. Ch., 697 ; Fletcher v. Fletcher, 2 Cox, 99; Thomas v. Brown, 10 Ohio St., 250; Hitner's Appeal, 4 P. F. Smith, 114; Barron v. Bar- ron, 24 Vt., 375 ; Dutton v. Dutton, 30 Ind., 455. Contra, Mansfield v. Mans- field, Wright, 284 ; Simpson v. Simpson, 4 Dana, 140 ; McCrocklin v. McCrock- lin, 2 B. Mon., 370; McKennan v. Phillips, 6 Whart., 571 ; Hutton v. Duey, 3 Pa. St., 100; Champlin v. Champlin, i Hoffm. Ch., 55; Rogers v. Rogers, 4 Paige Ch., 518 ; Reed v, Beazley, i Blackf., 97. It has been maintained by em- inent judges, that deeds of separation between husband and wife, through the intervention of trustees, ought not to be upheld either as to the separation, or as to a stipulation for a separate maintenance. Evans v. Evans, i Hagg., Consist. R., 36, per Lord Stowell. " Lord Eldon intimated that a settlement by way of a separate maintenance on a voluntary separation of husband and wife, was against the policy of the law, and void ; and he made no distinction between settlements resting on articles, and a final complete settlement by deed ; or be- tween the cases where a trustee indemnified the husband against the wife's debts, and where there was no such indemnity. The ground of his opinion was, that such settlements, creating a separate maintenance by voluntary agreement be- tween husband and wife, were in their consequences destructive to the indis- soluble nature and sanctity of the marriage contract." 2 Kent's Com., p. 175, referring to St. John v. St. John, 11 Ves., 530, and see the opinion of Lord El- don, in Westmeath v. Salisbury, 5 Bligh, N. S., 339. But the doctrine is now well settled in England ; and it is regarded with more favor than formerly in the United States. The agreement must, however, be for immediate, and not for future, separation, the latter being void. Durant v. Titley, 7 Price, 577 ; Hind- ley V. Westmeath, 6 B. and Cresw., 200. But the following clause in a deed was held to be valid and binding : " If my wife and myself should ever part, or be separated, or divorced, I will account to her and her heirs for all such ad- vances as may be made to her by her father ; and, in the meantime, they are to be kept to her separate use and control." Waring v. Waring, 10 B. Men., 331. Articles of separation, to which a trustee was a party, were executed by a hus- band and wife, the husband covenanting that the wife might live separately, and that he would not disturb her ; and it was agreed that the wife's real and per- sonal property should be held in trust for her maintenance, that she would not call upon her husband for assistance, nor contract debts on his account, and that if she did not dispose of her property by will, it might go to her heirs. Held binding on the husband. Heyer v. Burgher, i Hoffm. Ch., i. When the wife returns to her husband for the purpose of resuming her duties and privileges as a married woman, and is received by him as his wife, their previous agreement to separate maintenance falls with the contract out of which it arose, and upon which it was founded. Shelthar v. Gregory, 2 Wend., 422 ; Pidgin v. Cram, 8 N. H., 350. ^ Vansittart v. Vansittart, 2 De G. and J., 255 ; Stapilton v. Stapilton, 2 Lead. Gas. in Eq., 853. 54 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 42. junction, the husband to forbear from molesting his wife ; ' or to restrain him from suing for a restoration of conjugal rights, in violation of a covenant inserted in a deed of sep- aration executed under a decree of the court ;' but not to enforce a simple agreement between them to live separately ; a husband and wife being incapable of contracting without the intervention of some third person.' Such an agreement must have been founded on a good consideration. The staying of a suit in the ecclesiastical court for nullity of marriage on the ground of impotency of the husband, was deemed a sufficient consideration against him.' The same was held of an agreement by the wife to accept mainte- nance from the husband, instead of bringing a suit for a divorce a mensa et thoro ;" also, of an engagement by the trustees to indemnify the husband against the wife's debts ;' or to do so, provided an annuity, which w^as to be paid, w^as secured ;' also of a covenant, by a third person, to pay the husband's debts." A consideration w^hich is good against the creditors of the husband will, of course, be good against 1 Sanders v. Rodway, 22 L. J. Ch., 230 ; 16 Beav., 267 ; Flower v. Flower, 20 W. R., 231. * Hunt V. Hunt, 10 W. R., 215. ^ Hope V. Hope, 26 L. J. Ch., 417 ; Wilkes v. Wilkes, 2 Dick , 791 ; Dibble v. Hutton, I Day, 221. The intervention of a trustee for the wife has generally been deemed essential in order to give validity to provisions for her separate maintenance. Legard v. Johnson, 3 Ves., 359 ; St. John v. St. John, 11 lb., 526 ; Watkins v. Watkins, 7 Yerg., 283 ; Simpson v. Simpson, 4 Dana, 140 ; Tourney V. Sinclair, 3 How. Miss., 324 ; Bettle v. Wilson, 14 Ohio, 257 ; Carson v. Mur- ray, 3 Paige Ch., 483 ; Carter v. Carter, 14 Sm. and Marsh, 59. But the pro- visions of a deed of separation have been enforced without a trustee. More v. Ellis, Bunb., 205 ; Guth v. Guth, 3 Bro. C. C, 614 ; Frampton v. Frampton, 4 Beav., 294; Picket v. Johns, i Dev. Eq., 123; Hutton v. Duey, 3 Pa. St., 100; Barron v. Barron, 24 Vt., 375. "It is unquestionably more convenient and proper, in cases of separation, that trustees should be appointed by whom the provisions for the wife's separate maintenance may be enforced." Hill on Trus- tees, p. 426. ^ Wilson v. Wilson, supra. ^ Hobbs v. Hull, i Cox, 445. ® Stephens v. Olive, 2 Bro. C. C, 90 ; Compton v. Collinson, lb., 38 ; Worrall v. Jacob, 3 Mer., 256; Westmeath v. Westmeath, Jac, 126 ; Elsworthy v. Bird, 2. Sim. and Stu., 381. The absence of such a covenant on the part of the trus- tees would not invalidate the deed as against the husband, though it would not be binding on his creditors. Fitzer v. Fitzer, 2 Atk., 511. ' Wellesley v. Wellesley, 10 Sim., 256. ^ Wilson V. Wilson, supra ; Jones v. Waite, 5 Bing. N. C, 341. § 43- ENFORCEMENT OF COMPROMISE. 55 him. Adultery by the wife will not prevent the court from enforcing articles of separation ;' but otherwise, when there is an agreement before marriage for the payment out of the husband's estate of an annuity to the wife in the event of a separation taking place between them ; as that would fur- nish an inducement to the wife " to be guilty of the most atrocious conduct in order to entitle herself to the pro- vision." " § 43. Enforcement of compromise. — A compromise will be enforced the same as any other agreement, and the court will not inquire into the validity of the claim on which it is founded ; the compromise of a claim in good faith, to which a person believes he is liable, and of the nat- ure of which he is aware, being a good consideration for the agreement.' But the compromise, to be upheld, must relate to a doubtful claim ; for if the claim is undisputed, payment of a part will not discharge the rest for want of consideration." Where, however, " parties, whose rights are questionable, have equal knowledge of facts, and equal means of ascertaining what their rights really are, and they fairly endeavor to settle their respective claims among them- ^ Seagrave v. Seagrave, 13 Yes., 439; Buchanan v. Buchanan, i B. and B., 203 ; Blount v. Winter, 3 P. Wms., 276. - Cocksedge v. Cocksedge, 14 Sim., 244. But see S. C. 5, Hare 397. ' Attvvood V. 1 Russ.,353 ; Bailey v. Wilson, i Dtv. & Batt. Eq., 182 ; Moore V. Fitzwater, 2 Rand., 442 ; Mclntire v. Johnson, 4 Bibb., 48 ; Zane v. Zane, 6 Munf., 406; Chamberlain v. McClurg, 8 Watts & Serg., 31. ''If com- promises are otherwise unobjectionable, they will be binding, and the right will not prevail against the agreement of the parties ; for the right must always be on one side or the other, and there would be an end of compromises if they might be overthrown upon any subsequent ascertainment of rights contrary thereto. If, therefore, a compromise of a doubtful right is fairly made between parties, its validity cannot depend upon any future adjudication of that right. There must, however, be an honest disclosure, by each party to the other, of all such material facts known to him relative to the rights and title of either as are calculated to influence the judgment in the adoption of the compromise ; and any advantage taken by either party of the other's known ignorance of such facts, will render the same void in equity, and liable to be set aside." Story's Eq. Juris., Sees. 131, 132. * Fitch v. Sutton, 5 East., 230 ; Thomas v. Heathorn, 2 B. & Cr., 477 ; Down V. Hatcher, 10 Ad. & El., 121 ; Btanchard v. Noyes, 3 N. H., 518; Seymour v. Minturn, 17 Johns., 169; Wheeler v. Wheeler, 11 Vt., 60; Geiser v. Kershner, 4 Gill & Johns., 305 ; State v. Payson, 37 Me., 361. 56 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 43. selves, every court must feel disposed to support the con- clusions or agreements to which they may fairly come at the time, and that, notwithstanding the discovery of some common error;'" or notwn'thstanding the subsequent decis- ion of a court shows that the rights of the parties were different from what they supposed." Where two persons agreed upon a boundary line between their lands by a com- promise in writing, and there was no appearance of unfair- ness, fraud, or mistake, specific performance was decreed." And where a creditor entered into an agreement with a third person, for a valuable consideration, to compromise the claim of the former against his debtor, it was held such an agreement as would be specifically enforced." The court strongly leans in favor of family arrangements which are in the nature of a compromise,^ and which neither mis- take nor want of mutuality will prevent from being con- clusive between the parties. ** Where family arrange- ments," said Lord Eldon, " have been fairly entered into, without concealment or imposition upon either side, with no suppression of what is true, or suggestion of what is false, then, although the parties may have greatly misunderstood their situation and mistaken their rights, a court of equity will not disturb the quiet which is the consequence of that agreement."" A father and son compromised a contention ' Lord Langdale in Pickering v. Pickering, 2 Beav., 31. And see to the same effect the remarks of Lord Alvanley in Gibbons v. Gaunt, 4 Ves., 849. - Lawton v. Campion, 18 Beav., 87. ' Fugatt v. Robinson, 18 B. Mon., 680. ^ Phillips V. Berger, 8 Barb., 527. ^ Cory V. Coiy, i Ves. Sen., 19; Stockley v. Stockley, i V. & B., 30 ; Clifton V. Cockburn, 3 M. & K., 76. ^ Gordon v. Gordon, 3 Swanst., 400. " Whenever doubts and disputes have arisen with regard to the rights of different members of the same family, and fair compromises have been entered into to preserve the harmony and affection, or to save the honor of the family, those arrangements have been sustained by courts of equity, albeit perhaps resting on grounds which would not have been satisfactory' if the transaction had occurred between mere strangers." Sugden, Chancellor, in Stapleton v. Stapleton, 2 Wharton & Tucker's Eq. Cas., 7ioie. See Bailey v. Wilson, i Dev. & Batt., 182 ; Price v. Winston, 4 Munf., 63; Watkins v. Watkins, 24 Ga., 402 ; Fulton v. Smith, 27 lb., 413; Smith v. Smith, 36 lb., 184 : Pullen v. Ready, 2 Ark., 587. But the law is jealous of whatever tends to the destruction of family confidence, or to induce the disobedience of parental authority, and it will not uphold an agreement which has that effect. In IMer- § 43- ENFORCEMENT OF COMPROMISE. 57 as to the title to a farm by an agreement under seal bind- ing the father to pay the son twenty-five hundred dollars — five hundred in thirty days, one thousand out of the first payment made on the sale of the farm, and one thousand out of the second payment. The father paid the first in- stalment, but failed to pay the others, or to sell the land. Held to create a charge upon the land, and to entitle the son to a decree for specific performance. In such case the court might properly appoint a trustee to make the sale. The unpaid money became due after a reasonable lapse of time for the father to sell the land and realize from its sale.' An agreement in settlement of a family dispute will not be specifically enforced, unless the arrangement is final ; nor if it is hard and unconscionable, or unequal, or if a strict legal construction of its terms would give the plain- tiff undue advantage.' When an agreement for the com- promise of family disputes is not complete in itself, but a mere plan looking to a future adjustment of details, and consequently so far from settling the family difficulties it may be the germ of future litigation, specific performance will of course not be decreed.' Where a compromise was entered into through the mistake of counsel, a bill for spe- cific performance was dismissed, but without costs.* The compromise of a suit may be enforced by motion or peti- tion in the original suit to stay proceedings, when the prompt interference of the court is necessary to carry the agreement into effect ; as where one of the parties is liable to immediate attachment. But if the agreement for a compromise goes beyond the ordinary range of the court in the existing suit, includes a number of details, money to be paid, and acts to be performed, or the equity sought to cier V. Mercier, 50 Ga., 546, the contract was held incapable of being enforced, for the reason that its declared object was the repudiation of a parent's advice and authority, so that both might be set aside during his life, with a guaranty of impunity to the son for any disobedience or want of filial loyalty on his part. ' Johnson v. Johnson, 40 Md., 189. ^ Wistar's Appeal, 80 Pa. St., 484. ' Ibid. * Swinfen v. Swinfen, 27 L. J. Ch., 35. 58 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 44. be enfbrced is different from that on the record, or the agreement is denied, or the rio^ht to have it enforced in the suit disputed, a fresh suit should be brought for specific performance/ § 44. Arbitration not compelled. — An agreement to refer matters to arbitration will not be specifically enforced ; nor will the court require arbitrators to make an award.' Where the parties to a contract for the sale of land, stipulated that if they could not agree as to the price, to leave it to two dis- interested men to fix the same, and the price was to be paid within a year following, but no price had been fixed some ten years afterward, it was held that a specific performance could not be decreed.' Specific performance cannot be en- forced of an agreement that property shall be sold at a price to be determined by valuers, if no valuation be made ; nor the appointment of valuers be decreed, or any other mode of determining the price be substituted by the court,' un- less there has been such acquiescence in, or part perform- ance of, the contract, as would render it inequitable not to enforce its execution, in which case the court will deter- ' Pryer v. Tribble, L. R. 10, Ch. 534 ; Forsyth v. Manton, 5 Mad., 78 ; Wood V. Rowe, 2 Bligh, 595, 617; Askew v. Milling-ton, 9 Hare, 65; Richardson v. Eyton, 2 De G. M. & C, 79. See Tibbutt v. Potter, 4 Hare, 164. ^ Mitford PL 264 ; Crawshay v. Collins, i Swanst., 40 ; Street v. Rigby, 6 Ves., 815 ; Gourlay v. Duke of Somerset, 19 lb., 429; Agar v. Macklew, 2 Sim. and Stu., 418; Gervaise v. Edwards, 2 Dr. and W., 80; Conner v. Drake, i Ohio St., 166; Toby V. County of Bristol, 3 Story, 800; Noyes v. Marsh, 123 Mass., 286. The reason given for this rule is, that courts of equity will not aid parties in ousting by their agreements the jurisdiction of the ordinary tribunals of the country established for the trial of causes. See Mitchell v. Harris, 2 Ves., 131. "The regular administration of justice might be greatly impeded or interfered with by such stipulations, if they were specifically enforced. And at all events, courts of justice are presumed to be better capable of administering and enforc- ing the real rights of the parties, than any mere private arbitrators, as well from their superior knowledge, as their superior means of sifting the controversy to the very bottom." Story's Eq. Juris., Sec. 670. Moreover, the exercise of such a jurisdiction would conflict with the policy of the common law, which permits parties, in all cases, to revoke a submission to arbitration, even though the sub- mission has been made a rule of court. Gourlay v. Duke of Somerset, 19 Ves., 431 ; Agar v. Macklew, 2 Sim. and Stu., 418 ; Milnes v. Gery, 14 Ves., 400 ; Grea- son V. Ketletas, 17 N. Y., 491. ' Griffith v. Frederick County Bank, 6 Gill and J., 424. ■* Blundell v. Brettargh, 17 Ves., 232; Vickers v. Vickers, L. R. 4, Eq. 529; Firth v. Midland R.R., L. R. 20, Eq. 100. § 44- ARBITRATION NOT COMPELLED. 59 mine what is a fair value.' Parties obtained a lease for ten years, with the right to renewal from time to time, for five hundred years, the amount of rent to be ascertained by two assessors, one to be appointed by the lessors, and the other by the lessees. The lessees, on the faith of the covenant to renew, made improvements on the premises of very great value, but at the end of ten years the lessors refused to do anything toward renewal, and brought an action at law for the use and occupation of the property. The lessees there- upon filed a bill in equity to restrain the action until the lessors appointed an assessor, and an order was entered to that effect.^ Where an agreement for the sale of land pro- vided that the price should be ascertained by certain per- sons, and the vendor refused to allow them to go on to the land, it was held that he should be compelled to permit the valuation, and that after it was made, the vendee might file a supplemental bill for specific performance." If it be agreed to sell at a fair valuation, without providing any mode of determining the value, the court will adopt means for that purpose.' It is the same, where there is an agreement for a lease upon such usual and proper terms as shall be adjudged by a competent person.' Where an individual was admitted into a firm upon the terms that in case of the dissolution of the partnership by his death or otherwise, his share should be purchased at a valuation to be made by a person on each side, it was held that the court, in order to complete the agreement, could direct another mode of valuation upon failure of the one agreed upon." Where an agreement for the sale of land provided that personal property thereon should be taken at a valuation by valuers to be appointed, and the vendor refused to complete and to appoint a valuer, specific performance was decreed except as to the personal 1 Bunnell v. Ketletas, 16 Abb. Pr,, 205. ''Tscheider v. Biddle, 4 Dillon, 55. See Biddle v. Ramsey, 52 Mo., 153. ' Morse v. Merest, 6 Mad., 26. ■* Milnes v. Gery, 14 Yes., 400. ^ Gourlay v. Duke of Somerset, supra . " Dinham v. Bradford, L. R. 5, Ch. 519. 6o CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 45. property.' An inequitable refusal of a party to refer to arbitration may deprive him of the aid of the court, on the principle that he who seeks equity must do equity. A deed was executed creating a lien for a solicitor's bills and ad- vances, the amount of which was to be settled by arbitra- tion ; but the arbitrator died before making an award. A suit having been brought for a re-conveyance of the proper- ty, the court held that as the agreement between the par- ties was composed of two distinct parts — the first, admit- ting that some balance was due to the solicitor, and the second, a stipulation for a specific mode of ascertaining that balance, the latter of which alone had failed — it would not grant the relief asked unless the plaintiff" would consent to do equity by having the accounts taken by the master.'' § 45. Enforcement of award. — The specific performance of an award for the doing of a certain thing — as to convey land, assign securities, renew a lease at a rent fixed by arbi- trators, adopt a boundary line, or the like — may be en- forced, though not made a rule or order of the court.' And though the agreement for arbitration names a penalty for failure to comply with the award, and the losing party 1 Richardson v. Smith, L. R. 5, Ch. 648. . " Cheslyn v. Dalby, 2 Y. and C. Ex., 170. Where a lease made it optional with the lessor, either to take back his property at the end of the term and pay for the improvements, the value of which was to be determined by arbitrators, or to renew the lease, and he refused to do either, it was held that, although there could not be a decree for specific performance, and the usual remedy in such a case was an action for damages, yet that, as the court had acquired jurisdiction of the cause, it would retain the suit for the purpose of awarding compensation for the value of the improvements. Hopkins v. Oilman, 22 Wis., 476. ^Hall v. Hardy, 3 P. Wms., 187; McNeil v. Magee, 5 Mason, 244; Jones v. Boston Mills Corp., 4 Pick., 365 ; Cook v. Vick, 2 How. Miss., 882 ; Story v. Nor- wich & Worcester R.R. Co., 24 Conn., 94 ; Viele v. Troy & Boston R.R. Co., 21 Barb., 381 ; Johnson v. Conger, 14 Abb. Pr., 195 ; Caldwell v. Dickinson, 13 Gray, 365 ; Kelso v. Kelly, i Daly, 419 ; Memphis & Charleston R.R. Co. v. Scruggs, 50 Miss., 284. The authority of the arbitrator may be revoked by either of the parties, at any time before the award is made, unless the reference is made under an order of the court ; and after such revocation, the arbitrator has no power to make an award. Haggett v. Welsh, i Sim., 134. See Skee v. Coxson, 10 B. & C, 483 ; Milne v. Gratrix, 7 East., 608 ; Green v. Pole, 6 Bing., 443 ; Allen v. Watson, 16 Johns., 295 ; Marsh v. Packer, 20 Vt., 193 ; Tyson V. Robinson, 3 Ired., 333. But a revocation of the authority of arbitrators, good at law may be bad in equity. Harcourt v. Ramsbottom, i J. & W., 505. § 45- ENFORCEMENT OF AWARD. 6 1 offers to pay the penalty/ " Because an award supposes an agreement between the parties, and contains no more than the terms of that agreement ascertained by a third person.'" Accordingly, where the owners of contiguous lands could not agree as to their dividing line, and stipulated in writing to leave it to arbitrators, and to stand to and abide by their decision, and an award was made designating the line, which the owner who refused to perform failed to show was erroneous, it was held to be a proper case for a decree of specific performance.' So, where the complain- ants filed their bill for specific performance of an award previously made between the parties touching the fairness and equality of a partition of lands ; or if the court de- clined to decree specific performance of the award, asking that it would ascertain whether the partition was fair and equal ; and the defendant answered that part of the bill praying for specific performance of the award, and demur- red to the remainder ; it was held that the demurrer was well taken. If the award was valid, both parties were con- cluded by it, and the validity of the partition could not be drawn in question." An award may be specifically enforced * Whitney v. Stone, 23 Cal., 275. nVood V. Griffith, i Swanst. 54, per Eldon, L. C; Blackett v. Bates, L. R. i, Ch. 1 17 ; Bouck v. Wilber, 4 Johns. Ch., 405 ; Penniman v. Rodman, 13 Mete., 382. It has been held in England, that a railroad company, after notice to treat for land has been given to the land-owner, and the price of land has been fixed by arbitrators under the lands clauses consolidation act, is in the same position with regard to the land-owner as an ordinary purchaser, and will be compelled by a court of equity to complete the purchase. Harding v. Metropolitan R.R. Co., L. R. 7, Ch. 154. It seems that the idea prevailed at one time in England, that a company, by giving notice to treat, committed itself in such a manner that a court of equity would hold that to be an agreement on the part of the company from which it could not recede, and which could be enforced before the transac- tion had gone any further. It was, however, decided that the giving notice would only authorize the person who received it to insist that the course pointed out by the act should be taken, and that a mandamus would issue compelling the company to summon a jury, or proceed to arbitration for the ascertainment of the price. But the case is different when the price has been determined, for there are then all the elements of a complete agreement, and it becomes a bar- gain made under legislative enactment between the railroad company and those over whom it is authorized to exercise its power. Ibid., per Hatherley, L. C, referring to Adams v. Blackwell R.R. Co., 2 Mac. & G., 118. ^Thompson v. Deans, 6 Jones' Eq., 22. ^Emaus v. Emaus, 14 N.J. Eq., 114. 62 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 46. when the petitioner cannot obtain by a verdict all that it was the object of the award to give him.' But not an award merely for the payment of money which can be re- covered at law, or by the ordinary proceedings upon the award.' § 46. Grounds for declining to enforce award. — Suits for the specific performance of awards are not peculiar, but be- long to the ordinary jurisdiction of courts of equity as ap- plied to the specific performance of agreements. It rests in the sound discretion of the court to enforce awards, as well as contracts ; and equity will not interfere where ob- jections to the enforcing of an award appear upon its face or otherwise.' As where the acts of arbitrators appointed for the valuation of interests are not valid at law as to time, manner, or other circumstances ; or where the arbitrators have been guilty of misconduct ;' unless there is acquies- cence or part performance.' Specific performance was re- fused of an agreement to sell at a valuation which, on the construction of the agreement, was to be made during the lives of the parties, one of whom had died previous to the award.' The same was done where the agreement was to sell an estate at such price as a valuer should award, and the award was made partly in consideration of circum- stances w^hich rendered it doubtful whether the valuation had been estimated with due attention to accuracy.' So it has been held that the court may inquire into the adequacy of the consideration, notwithstanding it is agreed that the sale shall be made at a valuation to be determined by the arbi- trators.' As the arbitrators are chosen by the parties, it is not in general a good objection to an award, that it is un- ' Kirksey v. Fike, 27 Ala., 383 ; Jones v. Blalock, 31 lb., 180. ^Norton v. Mascall, 2 Vern., 24 ; Turpin v. Banton, Hardin, Ky., 312 ; Howe V. Nickerson, 14 Allen, 400 ; Babier v. Babier, 24 Me., 42. Contra, Wood v. Shepherd, 2 Patton & Heath, Va., 442. = Backus' Appeal, 58 Pa. St., 186. ^Chichester v. Mclntyre, 4 Bligh, N. S., 78. ^Norton v. Mascall, supra. "Biundell v. Brettargh, 17 Ves., 232, 241. 'Emery v. Wase, 8 Ves., 505. ■ ^Parken v. Whitby, Turner & Russell, 366. § 47- VALUATION DETERMINED BY COURT. 6^ reasonable/ Thus, an award was enforced notwithstanding it ordered the sale of an estate under circumstances which greatly depreciated its value.' But the court will refuse to enforce an award, on the ground of its unreasonableness, when the decision of the arbitrators destroys the rights of one of the parties to the agreement.' Where the agree- ment embodied in the submission is of such a nature that the court would not enforce it, it will not enforce the award founded on it. An award which is excessive, or defective, will not be enforced.' But an award rendered legally void by a mere clerical error, will be specifically decreed, unless its performance would work injustice.' If costs be award- ed, which arbitrators have no power to do, specific perform- ance of the residue of the award may still be decreed.' If the amount fixed by an award is to be a lien on the prop- erty, the lien attaches upon the making of the award, and furnishes an element of equity jurisdiction.' § 47. Valuation deterinined by court. — Where the fix- ing of a value by arbitrators is not of the essence of the contract, the court will carry the agreement into effect, and will itself, if necessary, ascertain the value.* Accordingly, where partners agreed that upon the determination of the partnership one partner should purchase the share of the other at a valuation to be made by two persons, one to be appointed by each partner, and the firm was carried on for some time under that agreement, it was held, affirming the decree of the. vice-chancellor, that, although the valuation could not be made in the way proposed, there being no provision in the agreement for the appointment of an um- pire, yet that the court would carry the agreement into ef- fect by ascertaining the value of the share." Where an ti ' Ives V. Metcalfe, i Atk., 64. ^ Wood v. Griffith, i Swanst., 43. 'Nickels v. Hancock, 7 De G. M. & G., 300. ' Ibid. ^Buys V. Eberhardt, 3 Mich., 524. " Caldwell v. Dickinson, 13 Gray, 365. ' Memphis & Charleston R.R. Co. v. Scruggs, 50 Miss., 284. See Overbee v. Thrasher, 47 Ga., 10. " Richardson v. Smith, L. R. 5, Ch. 648 ; Smith v. Peters, L. R. 20, Eq. 511. ' Dinham v. Bradford, L. R. 5, Ch. 519. 64 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 48. agreement was entered into for the sale of a public house and the fixtures, furniture, and other effects at a valuation to be made by a valuer appointed by both parties who un- dertook the valuation, but the vendor refused to allow him to enter the premises for that purpose, the court made a mandatory order compelling the vendor to allow the entry ; the court having power to make any interlocutory order which is reasonably asked as ancillary to the administration of justice at the hearing.' So, where a contract for a lease provided that the rent should be fixed by arbitrators, which was not done, for the reason that the landlord refused to give a bond to abide by the award, and the tenant, hav- ing taken possession and expended money on the faith of the agreement, filed a bill, it was referred to a master to ascertain what rent should be paid.° In a suit for the spe- cific performance of a covenant to renew a lease, where it was stipulated that the rent for the new term should be a percentage of the value of the premises, and that such value should be determined by arbitrators, and the lessor refused to submit the matter to arbitration, the court, after hearing the evidence, enforced the contract in its essential terms.' § 48. Enforcement of foreign contracts. — Specific per- formance may be decreed, notwithstanding the subject of the contract was not originally within the jurisdiction of the court, as the contract itself may give the court jurisdic- tion. Jurisdiction may be acquired to enforce contracts entered into abroad by the residence of the parties in this country, as was done in the case of a marriage contract made in France, the parties having gone to England.* But a foreign contract, to be capable of being enforced here, must not only be valid by the law of the country in which it was entered into, but consistent with the law and policy • Smith V. Peters, supra. ^ Gregory v. Mighell, 18 Ves., 328. ' Strohmaier v. Zeppenfield, 3 Mo. App. R., 429 ; see City of St. Louis v. St. Louis Gaslight Co., 5 lb., 484. ' Foubert v. Turst, i Bro. P. C, 129. § 48- ENFORCEMENT OF FOREIGN CONTRACTS. 65 of this country.' If the contract fall within the fourth section of the statute of frauds, it must satisfy the terms of that section, although in the country where the contract was made it was not required to be in WTiting ; that section having reference to the procedure, and not to the solemni- ties of the contract. "^ The relief is not restricted to per- sonal contracts, but extends to those concerning real estate, when the parties reside within the jurisdiction of the court,^ or are temporarily within the jurisdiction, if served ' Hope V. Hope, 26 L. J. Ch., 417. Mr. Story summarizes some of the excep- tions to the rule, as follows : " A court of equity has not necessarily jurisdiction over a subject of ordinary equity cognizance, simply because the parties are within the forum. Accordingly, it was held that a court of equity sitting in and for one county in the State of Pennsylvania, had no jurisdiction ov'er a bill praying for an injunction against the defendant residing in another county, but who was temporarily within the jurisdiction of the court, for erecting a nuisance which injured the plaintiff's land in that county ; for, to give a complete remedy in such cases, a court must not only restrain and prevent the continuance of the nuisance, but must order its removal, and give compensation in damages for the injury already caused ; and for a court of equity to give this ample relief, the locus in quo must be within the absolute jurisdiction of the court. So, it seems, a court has no jurisdiction to order a defendant to sell lands situate in a foreign jurisdiction, when the case would be otherwise within its power. Nor will a court of equity enforce against defendants, who have in their hands proceeds of the sale of lands situated out of the jurisdiction, the same equities to which such proceeds would have been unquestionably subject had the land sold been within the jurisdiction. The exercise of such a power seems to depend upon the fact whether the contract sought to be enforced was capable of being fulfilled by the lex loci rei sites. And this, although the parties are within the jurisdiction, and the proceeds of the land come into their hands, in specie. And if by the lex loci rei sites, the land could be alienated only upon the application of the pro- ceeds in a particular manner, such a law is valid, and courts of equity will not interfere with the proceeds, though brought within its jurisdiction." ^ Leroux v. Brown, 12 C. B., 801. ^ Arglasse v. Muschamp, i Vern., 75 ; Toller v. Carteret, 2 lb , 495 ; Jackson v. Petrie, 10 Ves., 164; Lord Portarlington v. Soulby, 3 M. & K., loS ; Massie V. Watts, 6 Cranch, 158; Watkins v. Holman, 16 Pet., 25; Sutphen v. Fowler, 9 Paige Ch., 280; Stansbury v. Fringer, 11 Gill. & Johns., 149; Wood v. War- ner, 15 N. J. Eq., 81 ; Olney v. Eaton, 66 Mo., 563. See Pingree v. Coffin, 2 Gray, 288. " It is the familiar doctrine of a court of equity, that it only acts upon the person of the defendant, and by its process against him, compels the performance of acts necessary to do justice to the plaintiff; and the rule is, that it binds the person and not the estate. The court of chancery does not bind the interest in land, but enforces the party to perform his own agreement. The process of sequestration of the real estate was only to compel the party to do what he was directed to do. This was so clearly the principle of the court, and the mode of its proceeding, that it entertained, and still entertains, questions as to property in other countries out of the jurisdiction of the court, and it inter- feres to stop proceedings in all courts, and even in the courts of other nations ; acting, in all cases, upon the person of the defendant if within the jurisdiction ; and enforcing the performance of the decree by personal process, commitment, and sequestration, in case of disobedience." Batten on Specif. Perform.,, 146, 66 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 48. with process/ although the contract was made abroad, and is to be performed there.' A contract to set out a boun- dary between two estates abroad, according to a line agreed upon, was specifically enforced.' So the foreclosure of a mortgage of immovable property situated abroad will be decreed against the mortgagor." Where it is agreed abroad to deliver a thing in specie to a person in this country, and the thing itself is brought here, the court here, in the exer- cise of its discretion, may see to it that the thing does not leave this country so as to defeat the right of the plaintiff to have it so delivered.^ So a person may be enjoined from suing abroad in breach of a contract, or a judgment creditor be compelled to convey land situated abroad." The jurisdiction is grounded, like all other jurisdiction of the court, not upon any pretension to the exercise of ju- dicial and administrative rights abroad, but on the circum- stance of the person of the party on whom the order is made being within the power of the court.' The court will not, by its decree, compel a defendant to go into a foreign State and specifically execute a contract there. In a recent case, the prayer of the complainant's bill was that the defendant, a Georgia corporation, might be decreed to specifically perform the contract alleged to have been made with the defendant for the right of way for its railroad 147. Referring to Wiseman v. Roper, Vin. Abr. 5, 532 ; Foster v. Vassall, 3 Atk., 589 ; Penn v. Lord Baltimore, I Ves. Sen., 444 ; Lord Cranstoun v. John- ston, 3 V^es., 170; Jackson v. Petrie, 10 lb., 104 ; Stratton v. Davidson, i R. & M., 485. ' Orr V. Irwin, 2 Law Repos., N. C, 465 ; Cleaveland v. Burrell, 25 Barb., 532 ; Dooley v. Watson, i Gray, 414 ; IVIcGregor v. McGregor, 9 Iowa, 65 ; Penn v. Hayward, 14 Ohio St., 302. But see Porter v. Worthington, 14 Ala., 584; Carter v. Jordan, 15 Ga., 76; Smith v. Iverson, 22 lb., 190; Akin v. Lloyd, 28 111., 331 ; Birchard v. Cheever, 40 Vt., 94. , ^ Myers v. De Mier, 4 Daly, 343. See Davis v. Parker, 14 Allen, 94. In Wisconsin it has been held that in a suit to enforce specific performance of a contract to convey land, a bill may be filed in any county of the State. Generally suit should be brought where the parties reside or the land lies. Burrall v. Eames, 5 Wis., 260. " Penn v. Lord Baltimore, supra. ^ Toller v. Carteret, supra. » Hart v. Herwig, L. R. 8, Ch. 860. " Bailey v. Rider, 10 N. Y., 363 ; and see Newton v. Brownson, 13 lb., 587. ' Lord Portarlington v. Soulby, supra. § 49- CONTRACTS INCAPABLE OF BEING ENFORCED. 6/ through the lands of the complainant situated in South Carolina, and to recover damages for the injury already sustained from the non-performance of that contract. The complainant's equity was based upon his alleged right to have the defendant compelled, by a decree of the court of Georgia, to specifically perform the alleged contract in South Carolina, by keeping the ditches open upon the complainant's land in that State to the depth of five feet, and to construct and keep in repair sufficient cattle-guards or stock-gaps upon the said land. It was held that the suit could not be maintained, and that the court below erred in overruling a demurrer to the bill.' § 49. Contracts incapable of being enforced. — Equity will not interfere when the contract is such that it is out of the power of the court to enforce it. A company having been formed for the purpose of supplying water to a district, the plaintiff filed a bill alleging that in consequence of his re- fusal to pay what he thought an unreasonable sum for the water supplied to him, the company threatened to cut off his supply ; that the company was bound to supply water to the inhabitants of the district on payment of a reason- able rate, and was not at liberty to sever from the mains pipes laid with their own consent so long as the owners continued to pay the rate originally agreed upon ; that the old rate paid by plaintiff was reasonable, while that demand- ed was unreasonable ; and he prayed that the company might be decreed to continue to him his supply of water upon payment by him of either the rate originally agreed upon, or such other rate as should be reasonable, if they were not bound to accept the old one ; for an issue at law ; and for an injunction to restrain the company from sever- ing the plaintiff's pipe from the mains, or interrupting his supply of water. It was held that what the plaintiff asked could not be granted, for the reason that it was beyond the ' Port Royal R.R. Co. v, Hammond, 58 Ga., 523. See/t^j/, § 49, reference 5. P- 69. 6S CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 49. power of the court.' As already stated/ a specific perform- ance will not, in general, be enforced for a violation of a contract for the personal services of an adult ; the remedy being an action at law for damages.' A court of equity cannot enforce the performance of the daily prospective duties, or direct the conduct of a member of a firm in mat- ters requiring his personal skill and judgment in the man- agement of the business of the firm ;' nor will specific per- formance be decreed of covenants in a farming lease.' So, a covenant will not be enforced by means of an injunction, when the acts complained of as breaches are frequent, and the court cannot ascertain whether in each case there has been a breach without an action at law ; as of a covenant not to sell water to the plaintiff's injury.' Where a con- tract for the sale of land provided that the purchase money should be paid on such terms as might be agreed upon be- tween the parties, it was held that the stipulation could not be enforced, the court having no power to compel the par- ties to agree.' On the same principle, specific performance of a contract to loan money to be secured by a mortgage will not de decreed.' Equity will not enforce the perform- ' Weak V. West Middlesex Water Co., i J. and W., 363. In this case Lord Eldon said : " Could I, under this act, compel one inhabitant to take water from this company? I apprehend I could not. If the company do not choose to supply water, I cannot compel them ; and if the Legislature meant to give me the right to do it — by right I mean a compulsory means to make them give a supply — it ought to have been taken care of in the act. I cannot, upon principle, do it without such a power." ' Anfe, § 33. But see posf, § 117. ' Haight v. Badgeley, 15 Barb., 499. * Buck V. Smith, 29 Mich., 166. A contract between a partner and a firm relative to the management of a mill, the marketing of lumber, and the financial affairs of the firm of which he was to have charge, cannot be specifically en- forced at the suit of the representatives of the deceased partner ; the court hav- ing no means of seeing to its execution, or of supplying the judgment or business faculty of the deceased partner. Roberts v. Kelsey, 38 Mich., 602. ' Rayner v. Stone, 2 Ed., 128. The making of a secret medicine will not be re- strained. An injunction, in such a case, would be of no use, unless a disclosure of the secret were made to enable the court to ascertain whether or not it was infringed ; otherwise the court would have no means of enforcing its own orders. Newberry v. James, 2 Mer., 446. " Collins V. Plumb, 16 Yes., 454. See City of London v. Nash, 3 Atk., 512 ; Caswell V. Gibbs, 33 Mich., 331. ' Huffy. Shepard, 58 Mo., 242. ' Rogers v. Challis, 27 Beav., 175 ; Sichel v. Mosenthal, 30 lb., 371. § 49- CONTRACTS INCAPABLE OF BEING ENFORCED. 69 ance of continuous duties involving personal labor and care of a particular kind which the court cannot superintend, as : the working of points and signals on the line of a railroad requiring constant supervision ;' or a contract to build and equip a railroad f or to work all the trains on a railroad, and keep the engines and rolling stock in repair f or to use the rail- road of another company with engines and trains, which the court cannot regulate and control ;* or an agreement by a railroad company to maintain and keep in repair cattle-guards upon the land of the plaintiff ;' or a covenant in the lease of a coal mine to work the mine efficiently ;" or an agreement by a street railroad company to run cars along a particular street daily, " at such regular intervals as may be right and proper," whether the obligation of the company rests in contract, or is derived from the provisions of its charter/ The own- ers of land granted to a company the lease of a coal mine, reserving a minimum rent of seven hundred and twenty pounds to be increased to a thousand pounds in case there should be pits sunk upon the estate, with a royalty upon all coal obtained beyond a certain quantity ; and the lessees covenanted to work the mine uninterruptedly, efficiently, and regularly, according to the usual and most approved practice. The lessees paid the minimum rent, but only mined a small quantity of coal by working through an ad- joining mine, without sinking pits on the lessors' property. The plaintiffs being desirous of enforcing a large amount of work, whereby an increased rent would be payable, filed a bill for specific performance. It was held that the lessees 1 Powell Duffryn Steam Coal Co. v. TaffVale R.R. Co., L. R. 9, Ch. 331. " Danforth v. Phila., etc., R.R. Co., 30 N. J. Eq., 12. 2 Johnson v. Shrewsbury and B. R.R., 3 De G. M. and G., 914. * Powell Duffryn Steam Coal Co. v. TaffVale R.R. Co., supra. * CClumbus, etc., R.R. Co. v. Watson, 26 Ind., 50. " Wheatley v. W^estminster Coal Co., L. R. 9, Eq. 538 ; Lord Abinger v. Ask- ton, 17 lb., 358. ' McCann v. South, etc., R.R. Co., 2 Tenn. Ch., 773. Mandamus or proceed- ings in the name of the State is the remedy for enforcing a duty imposed on a corporation by its charter. 70 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 49 . were under no obligation to sink pits, although that might be the most, effectual mode of working ; that if the lessees had committed any breach of contract, the remedy was not in equity, but at law ; and that the court could not, by a reference to chambers, give effect to the covenant by direc- tions as to the management of a coal mine/ S. granted to a railroad company a right of way through his premises on condition that the company would place beside its road on said premises a platform convenient for loading and un- loading cars, take therefrom all produce shipped by S., and bring and place thereon all freight shipped by or for him to that point from any other station on the road, provided the company had three days' notice. Held that S. could not compel specific performance.' Within the foregoing ^ Wheatly v. Westminster Coal Co., supra. * Atlanta, etc., R.R. Co. v. Speer, 32 Ga., 550. In this case the court said : " We are not asked to compel the plaintiffs in error to transport a particular article of freight now being on the platform awaiting transportation— we are asked that they shall, in all future time, transport all freight and deliver it as required by defendant in error in the terms of the contract. It is evident that any such decree must be as general and as indefinite in its terms as the contract itself. It cannot be specific as to the kind of produce, the quality, the time of performance ; nor can the court make a decree which will be satisfied by any specific act of performance. After decree made, the case must be kept open, and if the defendant in that decree be contumacious, there must be action of the court to enforce it twenty, perhaps fifty, times a year for all time. Besides, in regard to each alleged violation of the contract, the other party is entitled to a hearing. He may insist that the freight in question at one time is not of the description contemplated in the contract ; at another, that it is not the property of the party complaining ; at still another, that notice had not been given in the terms of the contract. We are satisfied that this is not a contract of which per- formance can be compelled by one sweeping decree embracing all time and ail instances demanding performance. The party has an adequate remedy at law, and doubtless would be redressed there." The following clause in a deed to a railroad company is incapable of being specifically enforced : " This conveyance is made upon the express condition that said railroad company shall build, erect, and maintain a depot or station-house on the land herein described, suitable for the convenience of the public, and that at least one train each w'ay shall stop at such depot or station each day when trains run on said road, and that freight and passengers shall be regularly taken at such dep6t." Blanchard v. Detroit, etc., R.R. Co., 31 Mich., 43. Graves, Ch J.: "Can the court see that in all coming time these requirements are carried out ? Can it know or keep informed whether trains are running, and what accommodations are suitable to the public interest ? Can it see whether the proper stoppages are made each day ? Can it take notice or legitimately and truly ascertain from day to day what amounts to regularity in the receipt and discharge of passengers and freight? Can it have the means of deciding at all times whether the due regularity is observed.? Can it superintend and supervise the business, and cause the requirements in question to be carried out ? If it can, and if it may do this in regard to one sta- § 49- CONTRACTS INCAPABLE OF BEING ENFORCED. 7 1 rule, an agreement to cultivate a particular crop, and to cut, cure, and deliver it in a prescribed manner, is not such a contract as the court has jurisdiction to enforce or to tion on the road, it may, with equal propriety, upon a like showing, do the same in regard to all stations on the road, and not only so, but in regard to all sta- tions on all the present and future roads in the State. That any such jurisdic- tion is impracticable appears plain, and the fault lies in the circumstance that the objects of the parties, as they were written down by them, are, by their very nature, insusceptible of execution by the court." In a suit for specific perform- ance by a land-owner against a railroad company, it appeared that the company, in consideration of the right of way for their track over the plaintiffs land, agreed to fence the same, to deliver to the plaintiff certain bonds, and to release him from a subscription to the stock of the company. It was held that the facts alleged entitled the plaintiff to a judgment for damages, but not to specific per- formance. Cincinnati & Chicago R.R. Co. v. Washburn, 25 Ind., 259. A court of equity, as a temporary measure during the pendency of a litigation, may undertake by means of a receiver to operate a railroad. Coe v. Columbus, etc., R.R. Co., 10 Ohio St., 372. But it will only do this when the demand for the exercise of such a jurisdiction is imperative, and the court can make an order ot limited duration, and give precise directions as to the manner in which the order shall be carried out. Port Clinton R.R. Co. v. Cleveland & Toledo R.R. Co., 13 lb., 544; see Richmond v. Dubuque & Sioux City R.R. Co., 33 Iowa, 422. A demurrer was sustained to a bill filed for the specific performance of an award which required that the defendant should execute to the plaintiff a lease of the right to such part of a railway made by the plaintiff as was on the defendant's land, and that the defendant should be entitled to run carriages on the whole line on certain terms, and might require the plaintiff to supply engine-power, while the latter should have an engine on the road ; and that the plaintiff, dur- ing the whole time, should keep the entire railroad in good repair. The court remarked that it "had no means of enforcing the performance of daily duties during the term of the lease ; that it could do nothing more than punish the party by imprisonment or fine in case of failure to perform them, and might be called on for a number of years to issue repeated attachments for de- fault." Blackett v. Bates, L. R. i, Ch. 117, per Lord Cranworth. Spe- cific performance was refused of a contract concerning the use and en- joyment of a quarry providing for " the delivery of certain kinds of marble in good sound blocks of a suitable size, shape, and proportion, and to quarry to order, as might be wanted to keep the mill fully supplied at all times, the amount to be not less than 75,000 feet per annum, and for so long a time as the said Ripley, his heirs, executors, administrators, and assigns, might want." The court said : " The agreement being for a perpetual supply of marble, no de- cree the court. can make will end the controversy. If performance be decreed, the case must remain in court forever, and the court, to the end of time, may be called on to determine, not only whether the prescribed quantity of marble has been delivered, but whether every block was from the right place, whether it was sound, whether it was of suitable size, or shape, or proportion. Meanwhile, the parties may be constantly changing. It is manifest that the court cannot super- intend the execution of such a decree. It is quite impracticable. And it is certain that equity will not interfere to enforce part of a contract, unless that part is clearly severable from the remainder." Marble Co. v. Ripley, 10 Wall., 339. In a suit to compel the defendant to convey to the plaintiff certain land, it ap- peared that the defendant and another person owned the land, and that, being desirous of having it partitioned, the defendant employed the plaintiff to do the busmess, agreeing that, for plaintiff's services, he would convey to him three hundred and twenty acres of defendant's share of the land. A bond was giv'en to secure the performance of this agi-eement, giving to the plaintiff the right of 72 CONTRACTS WHICH MAY OR MAY NOT BE SUBJECTS. § 49. estimate the damages for its breach." But if the work agreed to be done is definite, and there is no remedy at law, specific performance will be decreed ; as, the construc- tion by a railroad company of an archway under their road pursuant to their contract.' So, specific performance was decreed of a contract between the owner of land and a rail- way company, that, in consideration of the previous with- drawal by the land-owner of a petition to Parliament against the company's bill, the company would construct and forever maintain at their expense a siding of a specified length along the line upon the premises of the land-owner and set apart by him for that purpose.' The contract of a railroad company to construct bridges, works, and ap- proaches on land of the plaintiff crossed by its line was specifically enforced where a substituted agreement after- ward made had become incapable of fulfilment in conse- quence of the death of the person agreed upon to fix the damages.* selection, and making it incumbent on the defendant to convey as soon as the selection was made. A partition having been partly effected, further proceedings therein were postponed until the boundaries of the land could be fixed by the proper authorities. This was not done until three years afterward, when the plaintiff proposed to complete the partition ; but the defendant refused to allow him to do so ; whereupon he made a selection, and demanded a conveyance. It was held that, as the plaintiff could not be compelled to complete the services he had agreed to perform, nor the defendant to accept them, the contract was not one which could be specifically enforced. Cooper v. Pena, 21 Gal., 403. Although usually a contract, relating to personal services, will not be specifically enforced, but the party aggrieved will be left to his remedy at law, yet there is an exception to the rule, when, by the contract, something is to be done, on a party's own land, of such a nature that the opposite party will be deprived of the benefit of labor and materials bestowed thereon, unless the contract is carried out, and the owner of the land is attempting thus to deprive him. Within this principle, a contract between a water-power company and a city, that the former should construct certain extensive water-works, of a capacity to supply the city daily with a specified quantity of water, the works having been constructed, was enforced against the city. Columbia Water-Power Co. v. Columbia, 5 S. C, 225. ' Starens v. Newsome, I Tenn. Ch., 239. See attte, § 34. ^ Storer v. Gt. Western R.R. Co., 2 Y. and G. C. C, 48. ' Greene v. West Cheshire R.R. Co., L. R. 13, Eq. 44. * Firth v. Midland R.R. Co., L. R. 20, Eq. 492. BOOK II. JURISDICTION, HOW EXERCISED. CHAPTER I. WHO MAY SUE OR BE SUED. 50. Who in general competent to bring suit. 51. Exceptions to general rule. 52. Parties to marriage articles. 53. Person not a party to contract who is nearly related. 54. When the contract changes the eondition in life of a third person. 55. Persons interested in subject of sale. 56. Persons having adverse or inconsistent rights. 57. Strangers to contract claiming adversely to both parties. 58. Stranger to contract not in general a necessary party. 59. Rule as to sub-purchasers. 60. Purchasers of different parcels of land. 61. Where several are interested. 62. In case of death of vendor. 63. Executor or administrator, heir or devisee of party. 64. Alienee taking subsequent to contract with notice. 65. Where a contract is made by a trustee. 66. In case of contract concerning real estate of wife. 67. Where new contract is substituted. 68. When assignee of agreement may maintain suit. 69. Parties to bill in case of assignment, 70. Suit by assignee of mortgage. 71. Purchaser of vendee's title at public sale. 72. Where the contract is personal. 73. In case of concealed beneficiary. 74. When there is a provision against assignment, or the assignment is void. 75. Rule where third person has notice of the contract. 76. Principle of notice not restricted. 77. Where public company becomes consolidated with another company. 78. Rights and liability of purchaser of equitable title. 79. W'here the interests of plaintiff are merely equitable. 80. Notice to vendor of agreement by vendee with third person. 81. Contract by promoters of public company. 82. Liability of company under contract of its promoters. 83. Company must be able to fulfil agreement of its promoters. 84. Agent contracting as such. 85. Where agent contracts as principal. 86. Agent appearing as principal, but in fact contracting as agent. 87. Determination of interest by death of party. § 50. By whom in general suit should be brought. — Either party to an executory contract for the sale of land, 74 WHO MAY SUE OR BE SUED. § 5O. may, as has been seen, resort to a court of equity to enforce specific performance/ Those who entered into the contract, or who stand in their place or are interested in the subject matter, are, as a rule, the only proper parties to the suit ;* and a partial assignment of the complainant's interest be- fore the commencement of the suit to a person who does not join in the bill, is no defence.' In England, subject to some exceptions, a stranger to the contract cannot sue on it either at law or in equity, notwithstanding he may take a benefit under it ;' and the same thing has sometimes been held here. A. covenanted with B.'s mother to convey a tract of land to B. on his coming of age, in consideration that the mother would relinquish to A. the care and control of B. until that time. It w^as held that the son could not maintain a suit for specific performance.' So where a per- ^ Ante, § 15. McKee v. Beall, 3 Litt. Ky., 190; McWhorter v. McMahan, i Clarke, N. Y., 400. Where a party sells land which has been decreed to him, but for which no conveyance has been made, the purchaser may compel a con- veyance to himself by an original bill. Respass v. McClanahan, 2 A. K. Marsh, 577- ''Ante, § 14. Humphreys v. Hollis, Jac.,73 '■> Wood v. White, 4 M. and Cr., 460. See Boone v. Chiles, 10 Pet., 177; Buchanan v. Upshaw, i How., 56; Tobey v. County of Bristol, 3 Story, 800 ; Bissell v. Farmer's, etc.. Bank, 5 McLean, 495 ; Fagan v. Barnes, 14 Fla., 53. "Generally, to a bill for a specific perform- ance of a contract of sale, the parties to the contract are the only proper parties ; and when the ground of the jurisdiction of courts of equity in suits of that kind is considered, it could not properly be otherwise It is obvious that per- sons, strangers to the contract, and therefore neither entitled to the rights nor subject to the liabilities which arise out of it, are as much strangers to a pro- ceeding to enforce the execution of it, as they are to a proceeding to recover damages for the breach of it." Lord Cottenham, in Tasker v. Small, 3 My. and Cr., 63. Parties for whose benefit a contract was not made, and who were neither parlies nor privies to it, are not entitled to a specific performance. Beards- ley Scj'the Co. V. Foster, 36 N. Y., 561 ; Bacot v. Wetmore, 17 N. J. Eq., 250. A creditor at large, who has not obtained judgment, and who has no claim upon the property of his debtor, has no right to call for the specific execution or rescis- sion of the debtor's contracts for his ow'n benefit. Griffith v. Frederick County Bank, 6 Gill and Johns., 424. The rule is, that the remedy in equity shall either be between the parties who stipulated what is to be done, or those who stand in their place. Burgess v. Wheate, i W. Bl., 129. See post, §§ 58 {note 3), 81, 84-86. 'Willard V. Tayloe, 8 Wall, 557. ■* Peele ex parte, 6 Ves., 602; Crow v. Rogers, i Str., 592 ; Berkley v. Hardy, 5 B. and C, 355 ; Lord Southampton v. Brown, 6 lb., 718 ; Colyear v. Countess of Mulgrave, 2 Ke., 98; Hill v. Gomme, 5 M. and Cr., 250, 256. ' Denbo v. Upton, 2 Ind., 20. One of two joint purchasers of land may main- tain a suit against the other in whose name the purchase was made, to compel a conveyance of the plaintiff's share. Levy v. Brush, 8 Abb. Pr. N. S., 418. §§ 5T> 52- TO ENFORCE MARRIAGE CONTRACT. 75 son who, in consequence of protracted litigation for the re- covery of property, had become indebted to his soHcitor to a large amount, agreed with his brother to relinquish his in- terest in the property to his brother in consideration that the latter would undertake to pay the costs already incurred, with interest, it was held that, as the solicitor was not a party to the agreement, he could not enforce it/ The fol- lowing case, which at first seems to be at variance with the principle under consideration, is not so in reality : A. and B. were tenants in common of certain real estate ; and A., who had been tenant of B.'s moiety, and in arrear to him for rent, contracted with B. to execute to the plaintiff such lease of the whole premises as B. and the plaintiff should agree upon, and that all the rent should be paid to B. until the arrears due to him were satisfied. B. agreed with the plaintiff for a lease of the property at thirty pounds per an- num, and executed a lease of his half, at fifteen pounds per annum. But A. refused to do the same with respect to his moiety. On a bill for specific performance filed by the plain- tiff against A. and B., it was urged that as the plaintiff was a stranger, the suit could not be maintained. The objec- tion was, however, overruled, on the ground that B. might be regarded as the agent of the plaintiff in the contract." § 51. Exceptions to ride as to party complainant. — Ex- ceptions to the above-mentioned rule, arise: ist. Where a person is beneficially entitled under a marriage settlement to which he was not a party. 2d. In the case of near rela- tionship between the contracting party and the stranger. 3d. Where a part performance of the contract, by changing the status of the stranger, has entitled him to insist upon its completion. § 52. Who may sue to enforce marriage contract. — ist. Not only the parties to marriage articles, but those for whose benefit they are entered into, and especially the issue 1 Moss V. Bainbrigge, i8 Beav., 478, 482 ; S. C. on Appeal, 6 De G. M. and G., 292. "^ Hook V. Kinnear, 3 Swanst., 417, note ; per Lord Hardwicke. ']6 WHO MAY SUE OR BE SUED. § 52. of the marriage, are regarded as purchasers, and in that ca- pacity entitled to the specific performance of the contract. It is well settled, that " in marriage contracts the children of the marriage are not only objects of, but ^?m6-z' parties to it."' Collaterals were formerly excluded. But the same principle is now established with regard to them ; it being impossible for the court to know what collateral branches may have been in the minds of the contracting parties at the time of the contract. Furthermore, as the trustees might bring an action at law for the non-performance of the covenant to settle, and the measure of damages in such action would be the interests of all their cestuis que trust, the collaterals would thus enjoy the benefit of the covenant ; and the relief in equity must be at least commensurate with the damages at law.* The principle under consideration is also applicable to appointees of the wife under a power in- serted in the articles ; such appointees, in respect to the husband, claiming under, and standing in the place of, a purchaser." Mr. Fry' remarks that no case shows that a collateral ever enforced the articles against the covenantor solely on the ground of relationship, but that " in each case the party who had exacted the stipulation was dead with- out having in any way released it, and the claimants have sought to stand in the place of the party who, for a valuable consideration as regards the original settlement, had exacted the stipulation sought to be enforced. It does not there- fore follow that the original parties to the settlement could not release it as against collaterals, or that collaterals could enforce it against such parties, supposing them, or those of them through whom the collaterals claimed, to be alive and resisting performance."^ ' Lord Cottenham, in Hill v. Gomme, 5 M. and Cr., 254; Fry on Specif. Per- form., 42, 43. See Gray v. McCune, 23 Pa. St., 447. ■■' Goring v. Nash, 3 Atk., 186 ; Davenport v. Bishop, i Phil., 698 ; Edwards V. Countess of Warwick, 2 P. Wms., 171 ; Os.cjood v. Strode, lb., 245 ; Vernon V. Vernon, lb., 594; Affd. i Bro., P. C, 267 ; Stephens v. Trueman, i Ves. Sen., 73; Pulvertoft V. Pulvertoft, 18 Ves., 84, 92. ' Campbell v. Ingilby, 21 Beav., 567 ; Affd., 26 L. J. Ch., 654. * Specif. Perform., 44, 45. ' Hill v. Gomme, supra. §§ 53' 54- SUIT BY STRANGER. "J^J § 53. Near relative entitled to sue. — 2d. When one of the parties to a contract is nearly related to the person to be benefited by it, the latter may maintain a suit thereon. Accordingly, where a man promised his physician that if the latter would effect a certain cure he would pay a given sum to the physician's daughter, it was held that she might sue.' So, in an action brought by a husband and wife, the plaintiffs alleged that the wife's father, being seized of an estate, which afterward descended to the defendant, was about to cut down one thousand pounds worth of timber, to raise a portion for his daughter, when the defendant promised the father that, if he would not fell the timber, he would pay the daughter one thousand pounds. The plain- tiffs having obtained a verdict, it was moved in arrest of judgment, that the father alone could have brought the suit. But the objection was overruled, on the ground of nearness of relationship."' § 54. 3d. Suit by stranger whose condition has been changed. — Another exception to the general rule, that a stranger deriving a benefit from a contract, cannot sue on it, arises where the contract has been so far performed as to change the condition in life of the stranger, and to raise in him reasonable expectations grounded on the conduct of the contractor. Where, for instance, a gentleman of wealth enters into an agreement with a poor man, that the former will take the child of the latter, bring him up in affluence, and leave him certain property, and there is a part perform- ance, the child is entitled to have the agreement carried out ; his right being derived not from the contract itself, but from what has been done under it, and the wrong he will ' Physician's case, cited, i Ventr. , 6. * Button V. Pool, II Ventr., 318, 332 ; Martyn v. Hind, Cowp., 443. Relation- ship more remote than that of parent, child, or wife, carries with it no moral ob- ligation upon which a court of equity will found a decree for the specific perform- ance of a mere executory contract. Buford v, McKee, i Dana, 107 ; Hayes v. Kershaw, i Sandf. Ch., 258; Reed v. Vannorsdale, 2 Leigh., 569; Caldwell v. Williams, Bailey Ch., 175. See Chandler v. Neale, 2 Hen. and Munf., 124; Parker v. Carter, 4 Munf., 273 ; Hawey v. Alexander, i Rand, 219. 78 WHO MAY SUE OR BE SUED. § 55- Otherwise sustain.' In New Jersey an infant child went to live with his uncle, under an agreement between the father of the child and the uncle, that the latter should adopt the child as his own. The child lived with his uncle twenty- five years, and had no share of his father's estate, by reason of the expectations founded on this agreement ; and it was held that the child might maintain a suit to enforce a ful- filment of the agreement on the part of the uncle." § 55. Persofis havi7ig an interest in subject of contract. — All persons interested in an estate which has been made the subject of a contract for sale, are proper parties to a suit for specific performance ; and if minor children have been im- properly made parties, the rest of the bill will not be im- paired thereby.' Where specific performance is sought of an agreement for the sale of land, persons who were not parties to it, but who have been vested with certain rights subsequent to the making of the contract, are proper parties in a suit to adjudicate the rights of the parties thereto.* Pending a suit to enforce specific performance, the respon- dent conveyed the premises to a third party, and a decree was rendered for such performance, without bringing in the third party. Held, that the decree should be reversed on appeal.* And it has been held that if A. having entered in- to a contract for purchase with B., afterward contract with ' Hill V. Gomme, supra; Lyons v. Blenkin, Jac, 245 ; Fry on Specif. Per- form., 46. "^ Van Dyne v. Vreeland, 11 N. J. Eq. ; 3 Stockt., 370. See Coles v. Pilking- ton, L. R. 19, Eq. 174. 'Williams v. Leach, 28 Pa. St., 89; Seager v. Burns, 4 Minn., 141. Specific performance of a contract to convey land will not be enforced in favor of a part only of those interested, but all must join in the suit. Slaughter v. Nash, i Litt. Ky., 322 ; Rochester v. Anderson, 6 lb., 143 ; Spier v. Robinson, 9 How. Pr., 325 ; McCotter v. Lawrence, 6 Thomp. and Cook, 392 ; 4 Hun., 107 ; Lavender v. Thomas, 18 Ga., 668 ; Craig v. Smith, 94 111., 469; Fleming v. Holt, 12 W. Va., 143. The omission of indispensable parties to a bill, is error compelling a reversal in the appellate court, though the objection was not raised in the court below. Watson v. Oates, 58 Ala., 647. An infant may maintain a bill for specific performance where a party contracting in the infant's behalf was com- petent, and the contract was made on full consideration which has been paid. Guard v. Bradley, 7 Ind., 60. ^Curran v. Holyoke Water-Power Co., 116 Mass., 90. 'Casady v. Scallen, 15 Iowa, 93. § 56. ADVERSE CLAIMANTS TO INTEREST. 79 C, that B. shall convey to C, of which B. has notice, A. cannot enforce the contract against B. without making C. a party/ So, where a third person acquired an interest in the subject matter of the suit previous to the contract, he may be regarded as in some sense a party, and may be joined. A contract for the purchase of certain land was entered into by A. with B., A. having previously agreed to sell the land to C. A. and C. joined in a suit for specific performance against B. ; and it was held that they were both proper parties.' § 56. Adverse claimants to interest of vendor or vendee. — Persons who have adverse or inconsistent rights in the subject matter of the suit, cannot be made parties plaintiff ;' nor can a person who claims adversely to the vendor, as a rule be made a party defendant in a suit by the purchaser ;* though it seems he may be made a defendant to the ven- dor's bill/ But in a suit for the specific performance of a contract for sale, it was held that one who claimed title to the land under the vendor could come in and assert his right, as a decree might cast a cloud upon his title." Where a purchaser of real estate at a sheriff's sale sued to enforce a conveyance from the sheriff, and the former owner also claimed a right to redeem, it was held that he ought to be joined as a party defendant' Where at an auction sale it ^ Anon V. Walforcl, 4 Russ., 372. If A. covenant with B. to convey to him a tract of land, and B. subsequently requests A. to convey the land to C., and A. does so, it is a satisfaction of the covenant ; and if the purchase money, or any part of it, be still due and unpaid from B. to A., A. may have his action against B. to recover it. Webster v. Tibbits, 19 Wis., 438. ^Nelthorpe v. Holgate, i Coll. C. C, 203. ^ Fulham v. McCarthy, i House of Lds., 703 ; Padwick v. Piatt, 1 1 Beav., 503 ; Grant v. Schoonhoven, 9 Paige Ch., 225. ^ Tasker v. Small, 3 M. and Cr., 63; Dehogton v. Money, L. R. 2, Ch. 164. ^ See Calvert on Parties, 329 ; Evans v. Jackson, 8 Sim., 217 ; Sanders v. Rich- ards, 2 Coll., 568. Where the interests of the vendee, his wife, and his assignee in trust for creditors, are conflicting, the vendor, in his bill for specific perform- ance, may ask to have the respective rights of the claimants determined. Han- chett V. McQueen, 32 Mich., 22. * Carter v. Mills, 30 Miss., 432. ^ Crosby v. Davis, 9 Iowa, 98. In a suit for the specific performance of a con- tract to convey an undivided interest in land, those who are subject to the com- plainant's equity, and hold adversely to him, are necessary parties. Agard v. Va- lencia, 39 Ala., 292. 80 WHO MAY SUE OR BE SUED. §§ 57, 58. was arranged that a portion of lot A should be sold as part of lot B, it was held in a suit by the purchaser of lot A for specific performance according to the particulars, that the purchaser of lot B was a necessary party.' § 57. Adverse claimants to rights of both parties to co7i- tract. — Strangers to the contract who claim adversely to both of the parties to it, may sometimes be made defend- ants to a bill for specific performance. Thus, where the assignee of an insolvent sold a reversionary interest in stock of the insolvent, and the purchaser was served with notice not to pay the purchase money to the assignee, by a person claiming under a previous assignment made by the insol- vent subsequent to his insolvency, a bill brought by the purchaser against the assignee and the adverse claimant, praying an inquiry into the right of the latter, was sus- tained.' And so in a suit for specific performance by the purchaser from a voluntary settler, the trustees of the set- tlement, and the persons beneficially interested under it, may be made defendants.' Where, however, B. agreed to purchase property of A., who sold it under a power of sale contained in a mortgage to A. by C, as trustee and exec- utor of the will of D., and, after acceptance of the title, and preparation of the conveyance, B. received notice from unpaid residuary legatees of D., of a claim by them to the property contracted to be sold, in a suit by A. for specific performance of the agreement, a motion by B. that the residuary legatees might be added as defendants, was denied with costs.* § 58. Stranger to contract not a necessary party. — No liability attaches to a stranger to the contract in respect to its specific performance, though he be a necessary party to the conveyance ; as a judgment creditor, mortgagee, or 'Mason v. Franklin, i Y. and C. C. C, 239. See Peacock v. Penson, 11 Beav., 355. • Collett V. Hever, i Coll. C. C, 227. Willets v. Busby, 5 Beav., 193. * Harry v. Davey, L. R. 2, Ch. D., 721. § 58. STRANGER TO CONTRACT NOT A NECESSARY PARTY. 8 1 person interested in the equity of redemption/ Or a per- son who has joined the vendor in the sale in respect to other property under conditions as to laying out roads, etc., affecting the whole estate." Or, as a general rule, one who claims an adverse interest which was vested in him previous to the contract.' S. was in possession of land. M. claimed a right to preempt it, and, in order to buy him off, S. agreed to pay him sixteen hundred dollars. To secure such pay- ment, the land was entered in the name of H. as trustee, S. advancing the m.oney for the entry, with the understand- ing that H. was to convey when said amount was paid. On a bill by S. to compel H. to convey the legal title, it was held that M. was not a necessary party, as the transaction was more a mortgage than a bargain and sale, and that a tender of the money in court was sufficient. * Where, dur- ing the pendency of a suit for the specific performance of a contract to convey property, creditors of the vendor re- covered judgment against him, and sold the property in question, it was held that neither such creditors nor the purchasers were necessary parties.' It seems, however, that judgment creditors, though not necessary, may be proper parties.' In England, a steward who received the rents, 'Tasker v. Small, supra, overruling S. C, 6 Sim. 625, 636; Sober v. Kemp, 6 Hare, 155 ; Petre v. Duncombe, 7 lb., 24; Long v. Bowling, 33 Beav., 585 ; ante, % 56. Some of the exceptions to this rule will be noticed hereafter. The plaintiff in an action for the specific performance of a contract to convey land cannot bring in prior mortgagees of this and other land for the purpose of ad- justing his equities with respect to the order of sale upon a future foreclosure, or to secure the application of the purchase money to be paid by him for the satisfaction of the mortgages. Chapman v. West, 17 N. Y., 125. But prior mortgagees of real estate upon which securities are alleged to have been prom- ised to secure a loan of money, are necessary parties in an action to compel specific execution of such securities. The fact that a decree is asked which will operate only on the interest of the party promising the security, is not a suf- ficient answer to the objection that the mortgagees are not made parties to such bill. Caldwell v. Taggart, 4 Pet., 190. A court of equity may enforce an equi- table mortgage against others than the contracting party. And it may specifi- cally execute a contract for a mortgage, or other equitable lien against creditors. Alexander v. Ghiselin, 5 Gill, 138. ^Peacock v. Penson, supra. ^Delabere v. Norwood, 3 Swanst., 144. ^ Smith v. Sheldon, 65 111., 219 ; Affg. 44 lb., 68. * Secombe v. Steele, 20 How., 94. "Lord Leigh v. Lord Ashburton, 1 1 Beav., 470 ; Seager v. Burns, 4 Minn., 141. 6 82 WHO MAY SUE OR BE SUED. § 58. and had the title deeds in his possession, was held improp- erly joined.' And the same was held as to the wife of the owner of the estate who had possession of the deeds.' So, in a suit for the specific performance of a contract made by a mortgagee under a power of sale, the mortgagor need not be made a party.' A. entered into a contract with a railroad company for the sale to the latter of an estate, and agreed to buy out the tenant. The company having taken possession before the payment of the purchase money, they were served with notices not to trespass on the land, both by A. and his tenant, A. then brought a suit for specific performance, and to restrain the trespass, to which the defendants demurred because the tenant had not been made a party. The objection was held well taken by the vice-chancellor, who thought as the tenant w^as affected by the injury, he ought to be before the court. But the demurrer was overruled by the lord chancellor on the ground, that as the object of the suit was specific perform- ance, and the company had not paid the purchase money, they might be restrained from entering, whether the entry did or did not affect the tenant.* But when the suit is for the recovery of the possession, as well as for specific per- formance, a person in possession may be made a defendant, although he was not a party to the contract,' And where a stranger to the contract claims an interest in the purchase money, he may be made a party to the suit.* ' Macnamara v. Williams, 6 Ves., 143. ''Muston v. Bradshavv, 10 Jur., 402, ^Corder v. Morgan, 18 Ves., 344 ; Clay v. Sharpe, lb. 346, n. ; Ford v. Heely, 3 Jur. N. S., 116. * Robertson v. Gt. Western R.R. Co., 10 Sim., 314; S. C, i Rail. Cas., 459. ^Bishop of Winchester v. Midhants R.R. Co., L. R. 5, Eq. 17. "West Midland R.R, Co, v, Nixon, i H, & M., 176, It has been held in Mis- sissippi, that the assignee of a note for the purchase money may maintain a bill against the vendor and vendee and their respective representatives, to enforce the lien, and for a specific performance of the contract of sale, and that it is no objection to the bill that a deed was not tendered ; for the title not being in the complainant, he can only reap the benefit of his equity by demanding that the parties to the contract of sale shall be held to the performance of their re- spective covenants. Moon v. Wilkerson, 47 Miss., 633 ; Kimbrough v. Curtis, 50 lb., 117 ; Boyce v. Francis, 56 lb., 573. ^§ 59, 60. VENDEES OF DISTINCT PROPERTY. 83 § 59. Sub-purchaser not to be made a party. — A pur- chaser from the vendee is not, as a rule, a proper party to a bill filed by the vendor ; ' nor the original purchaser, when his vendee has been accepted in his place by the ven- dor/ Where a suit was brought by the vendor against both the purchaser and sub-purchaser, it was dismissed by the vice-chancellor as against the latter, though specific per- formance was decreed against the original contractor ; and the case was affirmed on appeal.' Where a vendor in a bill against the purchaser for the specific performance, or rescis- sion of the contract of sale, made a sub-purchaser a defend- ant, and the latter subsequently filed a bill against the pur- chaser for specific performance of his agreement, and made the original vendor a defendant, a demurrer by the original vendor to the sub-purchaser's bill was overruled, on the ground that the sub-purchaser had been made a defendant to the vendor's bill, and treated as having an interest in the original contract' § 60. Vendees of distinct property, — As a rule, pur- chasers of different parcels of land cannot be made co-de- fendants.' Each separate contract of a vendor with a purchaser, may be the subject of a several suit ; and if a number of such purchasers are joined in a single suit, a de- murrer will lie for multifariousness.' Where, however,, there were several sales of a like kind, and the several pur- ' Anon V. Walford, 4 Russ., 372 ; Corbus v. Teed, 69 111., 205 ; post, § 68. But a third person to whom the vendee had conveyed, and who pron^ised to pay the original vendoV, was held a proper defendant. Campbell v*. Patterson, 58 Ind., 66. ^ Holden v. Hayn, i Mer., 47 ; Hall v. Laver, 3 Y. & C, Ex. 191. See Heming- way V. Fernandes, 13 Sim., 228 ; post, § 69. ^Cutts V. Thody, i Coll. C. C, 223 ; approved and fallowed in Chadvvick v. Maden, 9 Hare, 188. *Fenwick v. Bulman, L. R. 9, Eq. 165. ® Brookes v. Lord Whitworth, i Mad., 86 ; Rayner v. Julian, 2 Dick., ^TT. ^ Ibid. Separate purchasers of distinct parcels of a tract of land cannot unite in a bill to compel specific performance by the former owner of a contract for the sale of the land to a third person, on the ground that the prior contract has been assigned to one of the complainaats for the benefit of all, when there is nothing in the bill beyond the averment to show that the purchase or transfer of such contract was for the benefit of alL Wood v. Periy, i Barb., 114. 84 WHO MAY SUE OR BE SUED. § 61. chasers were made plaintiffs in a single suit, and no objec- tion was raised for multifariousness, specific performance was decreed.' In a contract for the sale, in separate lots, of leaseholds held under an entire rent, it was stipulated that the purchaser of each lot should unite in the conveyance of the other lot for the purpose of executing covenants of in- demnity, and it was held that the purchaser of lot number two need not be a party to a suit by the vendor for the specific performance of the purchase of lot number one." But where an administrator coUusively sold separate lots to different purchasers, a bill making all of them defendants was sustained.' The rule is sometimes departed from to avoid unnecessary litigation. A suit was brought by a pur- chaser against trustees for sale, for the specific performance of a contract for the sale of a certain lot. The defence set up was, that by an arrangement to which the plaintiff was a party, a portion of the lot as originally described was taken from it and given to the adjoining lot. The bill was amended to put in issue this averment, but without making the purchaser of the adjoining lot a defendant. It was held that he ought to have been made a party, as otherwise the vendors would be exposed to another suit by him." § 61. Making some of sevei^al parties. — In a proper case, some, of several, may file a bill for specific performance, in behalf of all ; as the directors of a joint stock company to enforce an agreement for a lease, without joining all the shareholders.' But the application of the principle that 'Hargreaves v. Wright, 10 Hare, Appx., 56. " The general rule is, that un- connected parties may join in bringing a bill in equity, where there is one con- nected interest among them all centering in the point in issue in the cause." Shatter, J., in Owen v. Frink, 24 Cal., 171. Where A. enters into a contract with B. to sell him a tract of land, and B. assigns to two or more persons his equitable title to distinct portions of the tract, such persons may unite in a suit against A. for a specific performance of the contract. Ibid. ^Patterson v. Long, 5 Beav., 186. ' Fomiquet v. Forstall, 34 Miss., 87. * Mason v. Franklin, i Y. & C. C. C, 239. ' Taylor V. Salmon, 4 M. & Cr., 134. See Van Vechten v. Terr>', 2 Johns. Ch., 197 ; Denton v. Jackson, lb., 320 ; Vandeville v. Riggs, 2 Pet., 482 ; Beatty V. Kurtz, lb., 566 ; Dana v. Brown, i J. J. Marsh, 304 ; Robinson v. Smith, 3 Paige Ch., 322. An election was pending in a county for the location of the county buildings, and there was rivalr)' between different localities of the county § 62. WHERE VENDOR IS DECEASED. 85 some may be sued in behalf of all, is seldom required in suits for specific performance ; and it cannot easily be ap- plied. A joint stock company established by an act of Parliament which authorized them to bring actions in the name of their treasurer, purchased an estate with notice of a previous contract of the owner to grant a lease of part. A bill having been filed by the proposed lessee for the spe- cific performance of the contract, against the treasurer and directors, without making the other proprietors defendants, the court said that though it could bind the interests of parties not before it, it could not compel them to do an act, and that the execution of the lease by a few in behalf of all, would hardly be sufficient, supposing it proper. But though specific performance could not be decreed, the court enjoined the treasurer from disturbing the plaintiff's possession.' § 62. Where vendor is deceased. — In general, in case of the death of a party to the contract, the obligation to per- form, and the right to insist on performance, devolve on the representatives of the deceased. When the vendor of land dies before completion, the contract may be enforced either by the purchaser,"* or by the personal representatives of the vendor, who are the ones not only to receive, but to settle or contest, as the case may be, the amount to be paid by the vendee to whom their discharge or receipt is a neces- sary muniment,' In either case, the heirs or devisees must as to the place which ought to be selected. R. being desirous that the town of T. should be chosen, gave his bond to the Board of Police of the county, donat- ing ten acres of land in T. to the use of the county, provided that place should be designated. T. having been chosen for the county seat, R. refused to convey the land. It was held, in a suit brought by the Board of Police of the county, that they were entitled to a decree for specific performance against R. Reese v. Board of Police of Lee County, 49 Miss., 639. ' Meux V. Maltby, 2 Swanst., 277. ^ Hinton v. Hinton, i Ves. Sen., 631 ; Barker v. Hill, 2 Rep. in Ch., 218. ^ Baden v. Countess of Pembroke, 2 Vern., 212 ; Potter v. Ellice, 48 N. Y., 321 ; McCarty v. Myers, 5 Hun., 83. Where one of the executors having left the jurisdiction was superseded by order of the surrogate, and the other executors sold the real estate, it was held that such superseded executor was not a neces- sary party to a bill for specific performance against the purchaser, although it might be necessary for him to unite with the complainants in a deed to the de- fendant. Champlin v. Parish, 3 Edw. Ch., 581. S6 WHO MAY SUE OR BE SUED. § 62. be made parties;' the object of doing so, being to divest them of the legal title which immediately vests in them upon the death of the ancestor, and which they are bound to convey to the vendee." Infant, or adult heirs, may be compelled to fulfil a contract made by their testator or in- testate to convey land, to the extent of the estate they de- rive from him, although they are not named in the con- tract.' If there are devisees, or if the executors have power to sell, the heir need not be made a party, unless there is reasonable ground to deny the validity of the will.* On the other hand, when the purchase money has been paid in full, the contract of a decedent to convey real estate may be enforced against the heirs alone, although the executor or administrator may also be made a party." An executor as such, who is also a devisee, is not a neces- sary party in a suit against the devisees to compel perform- ance of a contract by their testator for the conveyance of ' Roberts v. Marchant, i Hare, 547; S. C, i Phil., 370; Lacon v. Merlins, 3 Atk., I ; Galton v. Emuss, i Coll. C. C., 243 ; Rutherford v. Green, 2 Ired. Ch., 121 ; Jacobs v. Locke, lb., 286*; Craig v. Johnson, 3 J. J. Marsh, 572 ; Glaze v. Drayton, i Dessaus Eq., 109 ; Morgan v. Morgan, 2 Wheat., 290 ; Buck v. Buck, II Paige Ch., 170; Robinson v. McDonald, 11 Texas, 385; Burger v. Potter, 32 111., 66 ; Moore v. Murrah, 40 Ala., 573 ; Newton v. Swazey, 8 N. H., 9; 9 lb., 385. Contra, Shannon v. Taylor, 16 Texas, 412. -Mitchell V. Shell, 49 Miss., 118. In a suit by the executors of the vendor to foreclose a lien for the purchase money, the heir or devisee must be made a party so as to be bound by the judgment, otherwise the purchaser under the judgment might not get a good title. Thomson v. Smith, 63 N. Y., 301. When the vendor has died without making a conveyance, and his administrator brings a suit to enforce the vendor's lien for the unpaid purchase monev, the heirs of the vendor must be made parties, and they cannot be dispensed with by tender- ing, either in the pleadings or at the trial, a deed from such heirs to the vendee, unless the vendee accepts such deed. Leeper v. Lyon, 68 Mo., 216. ^ Hill V. Ressegieu, 17 Barb., 162. In New York, it is provided by statute, that the " supreme court or a county court shall have power to decree and com- pel a specific performance by any infant heir or other person, of any contract or agreement made by any party who may die before the performance thereof, on the petition of the executors or administrators of the estate of the deceased, or of a person or persons interested in such bargain, contract, or agreement," etc. Rev. Sts. of N. Y., 6th Ed., p. 200, Sec. 113. * Colton V. Wilson, 3 P. Wms., 192 ; Boyse v. Rossborough, Kay, 71 ; Bellamy V. Liversidge, Sug., 464; Spier v. Robinson, 9 How. Pr., 325 ; Morrison v. Ar- nold, 19 Ves., 673. See West Hickory Mining Assoc, v. Reed, 80 Pa. St., 38. ^ Judd V. Mosely, 30 Iowa, 423. In Iowa, while the statute makes the execu- tor or administrator a proper party to a suit to enforce specific performance of a contract of a deceased vendor, it does not make him a necessary party. Rev. Sts. of Iowa, Sees. 2460, 2461. § 62. WHERE VENDOR IS DECEASED. 87 land.' If the personal property has been vested in trus- tees, by order of court, and the suit is brought by them, the personal representatives are still necessary parties.'' In a bill to enforce specific execution of an assignment by one of the distributees of an estate of all his interest in the undivided assets in the hands of the administrator, all of the distributees are necessary parties,' When the plain- tiffs have no power to execute such a conveyance as w^ill pass the vendor's interest, the person who can do it must also be made a party.' If the, widow of the vendor but for the contract would have been entitled, she must be made a party.' When the estate has been devised in strict settlement, the trustees, those in whom the first estate of inheritance is vested, and the owner of the intermediate, contingent, or executory interest, are necessary parties." All the co-heirs of a vendor deceased should join in a bill for the specific performance of a contract for the mutual sale of land ; and the death of one of the parties should be proved to excuse his omission as a party to the bill.' But heirs who have conveyed their interests in land contracted by their ancestor, need not be joined in a suit to compel specific performance by heirs who have not conveyed.' So, heirs who have consented that the contract may be en- forced, and who have voluntarily vested the title in the ad- ministratrix, need not be made parties." When the ex- ecutors of a deceased vendor decline to enforce the performance of a contract made by him in his lifetime, the suit may be brought by the creditors of his estate against the executors, heirs, and purchaser.'" ' Watson V. Mohan, 20 Ind., 223. ^Cave v. Cork, 2 Y. & C. C. C, 130. "Bogan V. Camp., 30 Ala., 276. * Roberts v. Marchant, supra ; Fowler v. Lightburn, 1 1 Ir. Ch., 495 ; Morgan V. Morgan, supra ; Story's Eq. PI., Sees. 160, 177. ^Hinton v. Hinton, supra ; Brown v. Raindle, 3 Ves., 256. ^Hopkins v. Hopkins, i Atk., 590 ; Gore v. Stackpool, i Dow, 18, 31 ; i Danl. Ch. Pr., 4th Am. Ed., 226, 265. ^Morgan v. Morgan, 2 Wheat., 290. ® Barnard v. Macy, 11 Ind., 536. ^Schoeppel v. Hopper, 40 Barb., 425. '" I Mad. Ch., 169. See Johnson v. Legard, T, & R., 290. 88 WHO MAY SUE OR BE SUED. § 6;^. § 63. Where vendee has died. — In case of the death of the purchaser before completion, performance of the con- tract may be enforced either by or against the vendor or by the heirs or devisees of the purchaser ; the heirs or devisees being the persons entitled to have the land conveyed to them, and to insist on a proper inquiry into the title.' D. contracted with W. for the sale of land. W. assigned to S., who afterward died. Held that in a suit to compel specific performance, the complaint should be filed by the heirs of S., and not by his administrator.' The heirs of an intestate are the proper parties to bring an equitable action to obtain from the defendants a deed of land of which they are alleged to have fraudulently obtained the legal title, contrary to the condition of a bond to their intes- tate.' But the heir or devisee of the purchaser is not en- titled to specific performance unless the contract is such as might have been enforced against the testator. The pro- priety of this principle is obvious ; for otherwise, the per- sonal estate would be taken to purchase for the heir or devisee what the testator was not bound to purchase, and perhaps would not have purchased.' ' Of course the con- tract will not be enforced in favor of the heirs after the personal representatives have rescinded the contract and re- covered back the money paid by the deceased vendee in his lifetime.* If the land has not been paid for, the executors or administrators of the vendee are necessary parties ; the purchase money being primarily payable out of the per- sonal property.* When the purchaser dies during the pen- ' Townsend v. Champernowne, 9 Price, 130; Lord v. Underdunck, i Sandf. Ch., 46 ; Miller v. Henderson, 10 N. J. Eq., 320. In a suit for the specific perform- ance of a contract for the conveyance of land alleged to have been purchased by partners for the puq)Oses of the firm, the heirs of a deceased partner must be made parties. Knott v. Stephens, 3 Oregon, 269. ^ House V. Dexter, 9 Mich., 246. ^Webster v. Tibbitts, 19 Wise, 438. ^ Broome v. Monck, 10 Ves., 597 ; Savage v. Carroll, i B. & B., 265, 281 ; Col- lier V. Jenkins, You., 295. '^Pennock v. Freeman, i Watts, 401. "Cocke V. Evans, 9 Yerg., 287 ; Peters v. Jones, 35 Iowa, 512; r Danl., Ch. Pr., 4th Am. Ed., 285 ; Story's Eq. PI., Sec. 177. See Holt v. Holt, 2 Vern., 322; Buckmaster v. Harrop, 7 Ves., 341, S. C. 13, lb. 456 ; Harding v. Handy, § 64. PURCHASER WITH NOTICE OF PREVIOUS CONTRACT. 89 dency of a suit by the vendor against him, the court, on the appHcation of the real and personal representatives, may order the plaintiff to revive, or in default thereof, that his bill shall be dismissed.' When both of the parties to the contract are deceased, and a suit for specific perform- ance is brought by the administrator of the vendor, the administrator and heirs of the vendee, and all who derive title under them, or are interested in the contract, are necessary parties." § 64. Purchaser zvith miotic e of previous contract. — An alienee of the vendor, and persons claiming an interest in the property obtained from the vendor after the date of the contract with notice of the vendee's rights, are necessary defendants at the suit of the purchaser.' One who is right- fully in possession of a corporeal hereditament, is entitled to presume knowledge of such possession on the part of any person negotiating for an interest in the property in- consistent with the title by which the possession is held. A person who knows of such possession will not be per- mitted to deny that he has notice of the title under which the possession is enjoyed ; and, for the purpose of notice, II Wheat., 104. The administrator of a deceased vendee is a necessar}' party in a suit by the heirs of the vendee to compel specific performance of a parol ■ contract against a subsequent purchaser with notice, where the personal estate of the deceased is small, the estate still unsettled, and the debts of the deceased vendee not all paid. The administrator has an equitable interest in the real estate on behalf of the creditors greater than that of the heirs. The fact that the heirs are also bona fide creditors of the vendee, cannot aid the defect in the bill for want of parties. Downing v. Risley, 15 N. J. Eq., 93. 1 Norton v. White, 2 De G. M. & G., 678. ^ Anshutz's Appeal, 34 Pa. St., 375. Where the purchaser has died, and no administrator of his estate has been appointed, the vendor may maintain a suit for specific performance against the heirs of the purchaser. Jackson v. McCoy, 56 Miss., 78. ^ Echliff v. Baldwin, 16 Ves., 267 ; Hersey v. Giblett, 18 Beav., 174 ; Case v. James, 29 lb., 512 ; Bishop of Winchester v. Midhants R.R. Co., L. R. 5, Eq. 17 ; Barnes v. Wood, 8 lb.. 424 ; Potter v. Saunders, 6 Hare, i ; Champion v. Brown, 6 Johns. Ch., 398 ; Langdon v. Woolfolk, 2 B. Mon., 105 ; Castle v. Wilkinson, L. R. 5, Ch. 536 ; Caldwell v. Carrington, 9 Pet., 86 ; Hoagland v. Latourett, I Green Ch., 254; Glover v. Fisher, 11 II!., 666 ; Wright v. Dame, 22 Pick., 55 ; Clark v. Flint, lb., 231 ; Baldwin v. Lowe, 22 Iowa, 367 ; Snow- man V. Harford, 57 Me., 397 ; Walker v. Cox, 25 Ind., 257 ; Patten v. Moore, 32 N. H., 38? ; Fullerton v. McCurdy, 4 Lansing, 132; Stone v. Buckner, 12 Sm. & Marsh, 73 ; Morris v. Hoyt, 1 1 Mich., 9. See Davis v. Henry, 4 W. Va., 571 ; Powell V. Young, 45 Md., 414 ; post, § 75. 90 WHO MAY SUE OR BE SUED. § 65, the possession need not be unceasingly and actively as- serted. Where individuals, having a contract for the pur- chase of mines, took possession, a subsequent vendee of the land was held to have bought with notice of the con- tract and to be bound by it, notwithstanding it was shown that mining operations had been suspended previous to the date of the purchase.' The principle of notice is appli- cable to all contracts binding the land in equity, as well as to contracts for sale." § 65. Ill case of sale of trust estate. — When a contract is made by a trustee in behalf of another person, and a suit for specific performance of the agreement is brought by the latter, the trustee is a necessary party ; as otherwise, an- other suit might have to be brought against him.' Where trustees brought a suit to compel the specific performance of the sale of the trust estate, it was held that an objection by the purchaser that another trustee who had been re- moved, and who did not join in the sale, was not a party, was not w^ell taken ; but that the purchaser might insist upon the execution of a deed by such trustee.' A cestui qtie trust is not a proper party to a bill filed by the trustee to enforce specific performance of a contract to convey land ; and it is no defence to the bill that the money paid on the contract was a trust fund.^ If the estate is held by trustees to sell and pay over the proceeds to persons named, with power to give receipts, the cestui que tritst need not be made a party to the suit.' But although cestuis que tries t are not, as a rule, necessary parties to suits by or against trustees, yet it is otherwise, where the trustees are of them- selves unable to make a valid contract, or where the cestuis que trust are entitled to be heard against the right of the ' Holmes v. Powell, 8 De G. M. & G., 572. '^ Furnival v. Crew, 3 Atk., 87. ^ Cope V. Parry, 2 J. and W., 538 ; Cooke v. Cooke, 2 Vern., 36 ; White v. Watkins, 23 Mo., 423. ^ Champlin v. Parish, 3 Edw. Ch., 581. ^ Gibbs v. Blackwell, 37 111., 191. ' Wakeman v. Duchess of Rutland, 3 Ves., 233 ; Beales v. Lord Rokeby, 2 Mad., 227 ; Potts v. Thames Haven Co., 15 Jur., 1004. § 66. HUSBAND AND WIFE. 9 1 trustees to exercise the power under which the contract was made.' If a bill be filed by the cestui que trust for the specific performance of a contract made by a third person with the trustee for the purchase of real estate, he may make the trustee, purchaser, and grantor, in the deed of trust, defendants ; or the trustee may be made a party plain- tiff. "^ Where the legal title of corporation lands is held by a trustee, in an action to enforce specific performance of a contract with such corporation in relation thereto, the trus- tee should be made a co-defendant.' If a person conveys property in trust, for a certain purpose, he retains such an interest therein as to entitle him to insist on a specific exe- cution of the trust.* In a suit for specific performance by the purchaser of land at a trustee's sale, the grantor in the deed of trust, who is entitled to the surplus after the pay- ment of the debt secured by the trust, is a necessary party." When one conveys the real estate in mere execution of a trust, it is unnecessary to make his representatives parties to the suit." Where a trustee was vested with the legal title for the mere purpose of securing the payment of a sum due to a third person, it was held, in a suit by the equi- table owner to redeem and for a conveyance of the legal title to him, that such third person was not a necessary party.' § 66, Husband and wife. — Where the husband has en- tered into a contract concerning the real estate of his wife, both should be made parties to a suit for specific perform- ' Evans v. Jackson, 8 Sim., 217; Saunders v. Richards, i Coll. C. C, 568. Where a husband, at his wife's request, entered into a written contract for the sale of land held by him in trust for her, it was held that it was not error to de- cree that he convey the land free from her claim for dower, although she op- posed the decree. Her right was a mere equity, and it was unnecessaiy for her to join. Rostetter v. Grant, 18 Ohio St., 126. "^ Fleming v. Holt. 12 W. Va., 143. ' Morrow v. Lawrence, 7 Wis., 574. '' Chapman v. Wilbur, 4 Oregon, 362. But where a trustee diverts the prop- erty from the purpose for which it was granted, it will not thereby be forfeited or revert to the donor. ' White v, Watkins, stcpra. ° Downing v. Risley, 15 N. J. Eq., 93. ' Smith V. Sheldon, 65 111., 219. 92 WHO MAY SUE OR BE SUED. "* § 66. ance.' On the other hand, it has been held that a suit to enforce an agreement to convey real estate to a married woman in which the husband is not named, may be brought by the wife alone.' Where a husband and wife filed a bill for the specific performance of a contract to convey certain land to the wife, and pending the suit the wife died, it was held that as her children were not joined, or an order made to proceed in the name of the survivors, a decree could not be rendered on the merits.' The wife, who is a tenant for years, may, with her husband, maintain a suit for specific performance against the lessor." A wife cannot be com- pelled to join in a conveyance of land when she was not a party to the contract for its sale ; and she is not a proper party in a suit by the purchaser for specific performance.' Where a husband contracted for the sale of his wife's land, describing it as his, it was held that the wife, after his death, could not enforce specific performance by the purchaser for her own benefit.^ In a suit to compel specific performance of a contract for the sale of real estate held as stock of a partnership, the wife of a surviving partner need not be made a party ; as she has no vested interest in the land.' A suit may be brought to charge the separate estate of a mar- ried woman under her contract for purchase f but not ' Wheeler v. Newton, 2 Eq. Cas. Abr., 44; Calvert on Parties, 269. Where a husband and wife contracted in writing to sell land of the wife, and the separate acknowledgment of the wife was taken, it was held that a bill would lie for specific performance. Dankel v. Hunter, 61 Pa. St., 382. Contra, Frarey v. Wheeler, 4 Oregon, 190. In a bill to compel a conveyance, where the complain- ants have derived their title in part through a married woman, whose convey- ance is void, she should be made a party defendant. Stansberry v. Pope, 4 Bibb. Ky., 492. ^ Stampoffski v. Hooper, 75 111., 241. See Harper v. Whitehead, 33 Ga., 138. 3 Hand v. Jacobus, 19 N. J. Eq., 70. ■* Bain v. Bickett, i Cine, 161. ' Richmond v. Robinson, 12 Mich., 193. ' Hoover v. Calhoun, 16 Gratt.. 109. ' Galbraith v. Gedge, 16 B. Mon., 631. " Hulme V. Tenant, i Bro. C. C, 16 ; Aylett v. Ashton, i M. and Cr., 105 ; Knowles v. McCamly, 10 Paige Ch., 342; Hinckley v. Smith, 51 N. Y., 21. See Berry v. Co.x, 8 Gill, 466 ; Ballin v. Dillaye, 37 N. Y., 35. In New York "any married woman possessed of real estate as her separate property, may bargain, sell, and convey such property, and enter into any contract in reference to the same, with like effect in all respects as if she were unmarried, and she may, in like manner, enter into any such covenant or covenants for title as are usual in § 66. ^.HUSBAND and; wife. 93 against her personally/ Her engagement, however, must have been made with reference to, and upon the faith and credit of, her separate estate/ Where a married woman, who had property of her own, and lived apart from her hus- band, agreed to take a lease, it was held that she was bound by the contract to the extent of her separate property, and might be compelled to pay the rent/ A contract founded upon proper consideration, by which the husband and wife bind themselves to execute a mortgage of the separate es- tate of the wife, will be enforced by a court of equity, and such estate held liable for the debt intended to be secured/ When a married woman, having a power of appointment, conveyances of real estate, which covenants shall be obligatory to bind her sepa- rate property in case the same, or any of them, be broken." R. S. of N. Y., 6th Ed., Vol. III., p. i6o, §82. ' Francis v. Wigzel, i Mad., 258. 2 Johnson v. Gummins, 16 N. J. Eq., 97; Harrison v. Stewart, 18 lb., 451 ; Hinckley v. Smith, supra. In New York a married woman may purchase prop- erty upon credit, and bind herself by an executory contract to pay the considera- tion, and her bond, note, or other engagement given to secure the purchase price of property acquired and held for her separate use, may be enforced against her in the same manner and to the same extent as if she were a feme sole, aiT^ her liability does not depend upon the existence of special circumstances, but is governed by the ordinary rules which determine the liability of persons sui juris upon their contracts. Cashman v. Henry, 75 N. Y., 103, reversing S. C, 44 N. Y. Supr. Ct., 93. In Iowa " the wife is clothed by statute with the same prop- erty rights, and charged with the same liability, as the husband. Indeed, it can- not be said that as to her property she is deprived of any rights which the hus- band enjoys that relate to his, or that any remedy is denied her or liability removed from her which are possessed by, or imposed upon, the husband. She can control her own property, vindicate her individual rights, and bind herself by contract as fully and to the same extent as her husband." Spafford v. War- ren, 47 Iowa, 47. In South Carolina the provisions of the General Statutes, p. 482, that the husband shall not be liable for the debts contracted by the wife, except for her necessary support, places the husband in the position of a formal, and not a substantial party, to suits against the wife on her individual contracts other than for her necessary support. Ross v, Linder, 12 S. C., 592. For many purposes, equity treats husband and wife as distinct persons, capable of contract- ing with each other ; and their contracts will sometimes be enforced, even as against the creditors of the husband. Campbell v. Galbreath, 12 Bush. Ky., 459- ^ Gaston v. Frankum, 2 De G. and S., 561. ^ Hall V. Hume, 37 Md., 500; Stead v. Nelson, 2 Beav., 245. When a married woman buys real estate, and gives her promissory notes for the purchase money, secured by a mortgage on the property purchased, the vendor can hold it in equity for the purchase money. Such a lien can be enforced by a suit to sub- ject the property to the debt, although no personal judgment can be given upon the notes. Pemberton v. Johnson, 46 Mo., 342 ; Glass v. Warwick, 40 Pa. St., 140, And see Brame v. McGee, 46 Ala., 170; Phillips v. Graves, 20 Ohio St., 371. 94 WHO MAY SUE OR BE SUED. § 6']. or an estate settled to her separate use, with no restraint on anticipation, makes such an agreement as would bind her if she were -difctne sole, the estate is bound.' The omission of mere formalities in the exercise of a power — as where a mar- ried woman, who has power to appoint by deed, enters into a contract not under seal — may be supplied, and specific performance be decreed ;' but not if the formalities are of the substance of the power, or are intended for her protec- tion.' Specific performance of the contract of a married woman, entered into even with the concurrence of her hus- band, for the sale of her real estate not settled to her sepa- rate use, or appointment, other than her chattels real, cannot be decreed against her." Although the contract of a mar- ried woman to convey her real property entered into during coverture, be incapable of specific enforcement, yet if she has received money from the vendee on the contract, or has consented that the vendee may take possession of the prem- ises, and he makes permanent improvements thereon, the iponey so advanced, and the value of such improvements, less the value of the use of the premises, will be decreed to be a charge upon the land, until paid.' Where the separate real estate of a married woman is exchanged for other land, under a contract that the conveyance shall be made to her, and the deed is taken in the name of her husband without her consent, she has an equity to have the contract or trust enforced against the heirs of her husband.' § 67. In case of substituted contract. — When a new con- ' Grigby v. Cox, i Ves. Sen., 518; Daniel v. Adams, Amb., 495 ; Martin v. Mitchell, 2 Jac. and W., 425 ; Nantes v. Corrock, 9 Ves., 189 ; Heather v. O'Neil, 2 De G. and J., 417 ; Francis v. Wigzell, i Mad., 258. In Massachusetts, under the statute, Genl. Sts., Ch. 108, § 3, providing that " a married woman may bar- gain, sell, or convey her separate real or personal property, and enter into con- tracts in reference to the same," she may, with the written assent of her husband, contract for the sale of her real estate, and specific performance may be enforced. Baker v. Hathaway, 5 Allen, 103; Townsly v. Chapin, 12 lb., 479. - Dowell V. Dew, l Y. and C. C. C., 345. ' Phillips v. Edwards, 33 Beav., 440. * Aylett V. Ashton, i M. and Cr., 105. See NichoU v. Jones, L. R. 3, Eq. 696 ; Avery v. Griffin, 6 lb., 606. * Frarey v. Wheeler, 4 Oregon, 190. " Davis V. Davis, 43 Ind., 561 ; Dayton v. Fisher, 34 lb., 336. § 6S. RIGHT OF ASSIGNEE TO MAINTAIN SUITS. 95 tract is substituted for the original one, by the introduction of a new person, as the original contractor is no longer a party to the contract, he ceases to be a proper party to a suit, which must be prosecuted between the parties to the new contract. If, for instance, A. contracts to sell to B., and, before completion, B. contracts to sell to C, and A. deals with C. as the purchaser, this may constitute a new contract ; and even where it does not strictly amount to that, B. may be an unnecessary party to the suit.' A rail- road company having entered into a contract with a land- owner, during the proceedings before Parliament, agreed with a rival company to refer the two bills to certain per- sons, and that the successful company should assume all the engagements of the other. The company which had con- tracted with the land-owner withdrew its bill pursuant to the award, and it was held that the land-owner could en- force the contract against the other company that had adopted it.' § 68. Right of assignee to maintain stiits. — When an agreement has been assigned, the vendor cannot compel the assignee to perform, there being no contract between them. Payments made by the assignee will make no difference in this respect. In such case the vendor must enforce the con- tract against the original vendee.^ But the assignee may maintain a suit for specific performance against the vendor, making the assignor a party,' it being a rule, that where the * Holden v. Hayn, i Mer„ 47 ; Hall v. Laver, 3 Y. and C. Ex., 191 ; Shaw v. Fisher, 5 De G. M. and G., 596. ^ Stanley v. Chester and Birkenhead R.R. Co., 9 Sim,, 264; 3 M. and K., 773. ° Corbus V. Teed, 69 111., 205 ; ante, § 59. The above section of course as- sumes that the contract is capable of assignment, which will not be the case, if it concerns the learning, skill, solvency, or other personal qualification of one of the parties, or is aganist public policy. Post, §§ 72-74. ■* Hanna v. Wilson, 3 Gratt., 293. " Where the assignment is absolute and unconditional, leaving no equitable interest whatever in the assignor, and the ex- tent and validity of the assignment are not doubted or denied, and there is no remaining hability to be affected by the decree, it is not necessary to make the latter a party. At most, he is merely a nominal or formal party in such a case." Story's Eq. Pl„ Sec. 153. See Brace v.. Harrington, 2 Atk., 235 ; Trecothick v. Austin, 4 Mason, 41 ; Whitney v. McKinney, 7 Johns. Ch., 144; Miller v. Bear, 3 Paige Ch., 4.67; Colerick v. Hooper, 3 Ind., 316; Miller v. Whittier, 32 Me., 96 WHO MAY SUE OR BE SUED. § 6S. original parties to a contract would be entitled to a decree for specific performance, all persons claiming under them have the same rights, provided there are no intervening equities ; ' as where the original purchaser was given a sub- sequent parol extension of time for making payment.' The assignee of a lease with a covenant to renew was accord- ingly held entitled to sue the covenantor for renewal." And where the assignee of an agreement for a lease was solvent, and it did not appear that the contract was restricted to the assignor, specific performance was decreed in favor of the assignee.* A. and B. entered into an agreement, by which A. was to furnish twenty-seven hundred peach trees, B. to 203 ; Currier v. Howard, 14 Gray, 511. The assignee of one of two obligees in a bond for conveyance of real estate, having brought suit, afterward acquired the interest in the land of both obligees in the bond. Held, that such suit was not a bar to a subsequent suit for specific performance, between the same parties concerning the same land. Knott v. Stephens, 3 Oregon, 235. G. conveyed land to K., reserving the free and perpetual right of way over such part of the prem- ises as should be occupied by a passage-way ; and a cross passage was to be completed as described. K. executed a bond to G., undertaking to finish said passage-way on demand after a certain time. Afterward, the lot conveyed to K. became the property of H., the defendant, having been conveyed to him subject to the reservation. H. and K. were requested to finish the passage-way, but neglected to do so. Held, that a decree for specific performance of the obliga- tion in the bond would not be made against K., he having sold the land, and that the bond was a personal obligation, and not a covenant running with the land. Smith v. Kelley, 56 Me., 64. ' Hays V. Hall, 4 Porter, 374; McMorris v. Crawford, 15 Ala., 271. ^ Ewins V. Gordon, 49 N. H , 444. The assignee of a contract is bound to perform both the conditions of the contract in favor of the other party, and the conditions of the assignment, to entitle him to a specific performance of the original contract. So, too, where the other party has assented to the assign- ment, if he has not waived the conditions of the original contract, and is not a party to the assignment. Jones v. Lynde, 7 Paige Ch., 301. " Duke V. Mayor of Exon, 2 Freem., 183 ; Vandenanker v. Desbrough, 2 Vern., 96; Moyses v. Little, lb., 194; Robinson v. Perry, 21 Ga., 183. * Crosbie v. Tooke, i M. and K., 431 ; Morgan v. Rhodes, lb., 435. But see Dowell v. Dew, i Y. and C. C. C, 345, in which the court refused to decree the specific performance of an agreement for a lease in favor of the assignee, except upon the terms that the assignor should enter into the covenants of the lease. Where such acts have been committed by the assignee of a contract for a lease as would have created a forfeiture had the lease been actually executed, equity will not decree specific performance of such agreement against the purchaser of the land who has recovered judgment at law. Jones v. Roberts, 3 Hen. and Munf , 436. A court of equity will not decree specific performance against the assignee of a chattel who has received the legal title subsequent to the making of a contract respecting the same chattel which neither passed the legal nor the equitable title, even though he acquired it with notice. Maulden v. Armistead, 18 Ala., 500. As to right of assignee of a chose in action to sue at law in Mas- sachusetts, see Walker v. Brooks, 125 Mass., 241. § 6g. PARTIES TO BILL IN CASE OF ASSIGNMENT. 9/ plant and cultivate them on his own farm, and, at the joint expense of the parties, to pick and market the fruit. A. died, and his administrator sold his interest under the con- tract, to C. Held, that C. could enforce specific perform- ance and payment of half the net proceeds of the sale.' All the assignees of a contract which has passed through several hands by assignment, should be joined in a suit for specific performance.' Where a vendor of land executed a bond for title, but did not receive the whole of the purchase money, and afterward became bankrupt, it was held that his as- signee must be made a party defendant in a suit for specific performance of the contract to convey.' § 69. Parties to bill in case of assignment. — If the bill be filed by the vendor's assignee, the vendor, or if he is dead, his personal representative, must be made a defend- ant.* It has been seen that when the contract has been assigned by the purchaser, a suit against the vendor should 1 McKnight v. Robbins, 5 N. J. Eq., i Halst., 229. An owner of land supposed to contain minerals, by an instrument in writing granted to B. the right t(»dig a mine on the land, and to remove therefrom any mineral he might dig within a year. A few months thereafter, B., by an indorsement on the contract, assigned to C. all his interest, right, and privilege in the land, with the appurtenances, and all the benefit and advantages derivable from such instrument, after which B. filed a bill in equity against A. for specific performance of the agreement. Held that as B. had parted with all his interest in the subject of the suit, the bill must be dismissed. Gaston v. Plum, 14 Conn., 344. A., who owned a tract of land supposed to contain five hundred acres, sold to B. two hundred and fifty acres, to be selected by him, and the balance to C. B. made his selection, and the land was surveyed by C, and conveyed by A., in accordance with the survey. B.'s land falling short, he filed a bill against C. for the deficit, and a decree was granted accordingly. Lee v. Durrett, 4 Bibb., 20. "^ Estill v. Clay, 2 A. K. Marsh, 497 ; Allison v. Shilling, 27 Texas, 450. In the case last cited, A. executed his title bond for land to B., who assigned the same to C. ; C. gave his bond for part of the land to D., and D. conveyed by title bond to E. In a suit by the latter against A., it was held that those through whom the plaintiff derived his equitable title, must be made parties. " The plaintiff, in this case, seeks to divest the title out of the defendant, not in favor, however, of the party to whom he is bound by his bond or its assignment, but in favor of one claiming under a contract to which he is a stranger, and, it must be pre- sumed, ignorant of its stipulations, and unadvised whether they have been ful- filled. Under these circumstances, we think, on principle and policy, the plain- tiff should be required to make those through whom he claims the right of en- forcing a contract in which he has no privity, parties to his suit." lb., per Moore, J. ^ Swepson v. Rouse, 65 N. C, 34. * Fulham v. M'Carthy, i H. L. Cas., 703, 722 ; Ryan v. Anderson, 3 Mad., 97 ; Hoover v. Donally, 3 Hen. & Munf , 316. 98 WHO MAY SUE OR BE SUED. §§ 70, J I. be brought by the assignee, making the purchaser a party.* A. having agreed to sell to B. certain land of C, contracted with C. for its purchase, and C. refused to complete, on this among other grounds. The price being adequate, and C. not alleging that he had ever refused, or was unwilling or w^ould hav^e objected to treat with B., or might have ob- tained better terms from him had he been apprised of the real situation, specific performance w^as decreed at the suit of A. and B.' But if the purchaser enter into an agree- ment to convey the estate to a sub-purchaser, and not that the original vendor shall convey it, such sub-purchaser is not a necessary party to a suit for the performance of the original contract.' So, where the purchaser's assignee has been accepted in his place by the vendor, the original pur- chaser should not be made a party to the vendor's suit* Where A. agreed to assign to B, a contract for carrying the mails, which was only executed by A. ; and B. filed a bill for specific performance against A. and C, to whom the contract had been assigned ; it was held that D., the partner of C, who was one of A.'s sureties to the govern- ment, was a necessary party.' § 70. Suit by assignee of uiortgage. — If the interest of a party in the contract for sale be mortgaged, the assignee of such mortgage may maintain a suit for specific perform- ance. Accordingly, where A. agreed to sell certain prop- erty to B., and then mortgaged his interest under this agreement to C, and C. assigned his mortgage to D., it was held that D. might maintain a suit against B. to en- force the agreement between him and A.' § 71. In case of sale of property 2inder decree, or on exe- cution. — The purchaser of a vendee's title, sold under a ' Ante, % 68 ; Chadwick v. Piatt, 11 Beav., 503. ■■' Nelthorpe v. Holgate, i Coll. C. C, 203. ' Chadwick v. Maden, 9 Hare, 188; Fenwick v. Bulman, L. R. 9, Eq. 165. See Anon v. Walford, 4 Russ., 372 ; atite, § 59. ■* Holden v. Hayn, i Mer., 47 ; Hall v. Laver, 3 Y. & C, Ex. 191 ; ante, § 59. ^ Woodward v. Aspinwall, 3 Sandf., 272. ' Browne v. London Necropolis Co., Week. R., 1857-1858, 188. § 72. PERSONAL CONTRACTS. 99 valid decree, succeeds to his position, and may maintain a suit for specific performance against the vendor. The vendor may file a bill to sell the premises in default of pay- ment, so as to discharge himself of the vendee's equities. But the vendee has no right to a decree of sale against the vendor for the purpose of paying the unpaid purchase money." Where land, under a contract of sale, but before conveyance or payment of the purchase money was taken on execution against the vendor, it was held that the vendee could not be relieved against a purchaser under the execution, except by paying to such purchaser the price paid by him, or the amount named in the contract." § 72. Personal contracts. — When the agreement is per- sonal, depending upon the learning, skill, solvency, or other characteristic of the contracting party, he alone can per- form it. A contract between an author and publisher was accordingly held incapable of assignment.' How far, in an agreement for a lease, the landlord relies on the solvency of the proposed lessee as a personal qualification, does not seem to have been fully settled.' One who has represented himself to be an agent for an individual on whose personal qualities reliance has been placed, will not be permitted to sue as principal.^ Where the lessee of a farm who was in- solvent permitted another person to become the apparent occupier of the premises, but with a secret trust for him- self, and the landlord supposing that the trustee was the sole possessor, and relying on his solvency, agreed to grant him a new lease, in a suit by the original lessee against the landlord, specific performance of this agreement was re- fused, on the ground that the landlord had entered into it under the expectation of having the covenants of a re- 1 Fitzhugh V. Smith, 62 III, 486. - Tomlinson v. Blackburn, 2 Ired. Eq., 509.. ' Stevens v. Benning, i K. & J., 168. Set past,. § 87. * Crosbie v. Tooke, i M. & K., 431 ; Morgan v. Rhodes,, lb. ,.435 ; Dowell v. Dew, I Y. & C. C. C, 345. ^ Rayner v. Grote, 15 M. & W., 365; Field v. Maghee,. 5 Paige Ch., 539; Rogers v. The Traders' Ins. Co., 6 lb., 584 ;, post,.% 86.. lOO WHO MAY SUE OR BE SUED. §§ ']l, 74. sponsible man, which he could not do, as there was no equity to compel the trustee to enter into the covenants/ And if a person make a contract with another, relying on his skill, but who is in fact a secret trustee, such person will not be compelled to perform the agreement for the cestui que trust.'' § ']2i. In case of agreement founded on personal considera- tw7is. — Although the contract be not personal, yet if it be influenced by motives of kindness toward the trustee, or feelings of dislike for the concealed beneficiary, which are known to the other party, specific performance may be re- fused at the suit of the person on whose behalf the osten- sible principal contracted/ The plaintiff, who had tried without success to purchase an estate from the defendant, got the secretary of Lord Chancellor Nottingham to enter into a negotiation in his behalf, under the pretence that it was for the Lord Chancellor or his son. The defendant had several cases pending in chancery, and wishing to oblige the Lord Chancellor he made the agreement ; but, upon discovering who the real purchaser was, refused to complete. The plaintiff's bill was dismissed, but specific performance w^as ultimately granted on payment by the plaintiff of the full value of the estate, which was a larger sum than that originally agreed." Where a lady, from family considerations, contracted with her son-in-law for a lease, for his accommodation, in the mansion house and demesne lands, specific performance was refused at the suit of his assignees in bankruptcy.' § 74. Where an assignment is forbidden, or against ' O'Herlihy v. Hedges, i Sch. & Lef.', 123. " Ibid ; Featherstonaugh v. Fen wick, 17 Ves., 313. ' Bonnet v. Sadler, 14 Ves., 528 ; contra. Lord Irnham v. Child, i Bro. C. C, 92 ; see Jordan v. Sawkins, i Ves. Jun., 402 ; Fellowes v. Lord Gwydyr, i R. & M., 83. * Phillips V. Duke of Buckingham, i Vern., 227. See 7iote to foregoing case, I Sug. Vend., loth ed., 349; Harding v. Cox, i Vern., 227, note ; Scott v. Lang- staffe, cited Lofft., 797. ' Flood V. Finlay, 2 BaU & B„ 9. § 74- WHERE AN ASSIGNMENT IS FORBIDDEN. lOl public policy. — When it is agreed that the instrument to be executed shall contain a provision against assignment, it operates to prevent not only an assignment of the interest when perfected, but also of the agreement/ There may, however, be, for the purposes of specific performance, a waiver of the proviso ; as where the assignee of the pro- posed lessee is recognized by the landlord as tenant." The assignment may be void as being illegal, or contrary to pubhc policy : as the assignment by an officer in the army of his commission by way of mortgage ;' or of his full pay, or half pay ;* or of compensation granted to him for the reduction of his emoluments or the abolition of his office, when, by the terms of the grant, he may be required to return to the public service ;' or the assignment of the profits of a public office/ Although it is not unlawful to assign a right at the time undisputed, but which, from cir- cumstances subsequently discovered, it becomes necessary to litigate with third persons, and the assignee may main- tain his bill in equity ;' yet it is contrary to public policy to permit the assignment of a mere naked right to sue.' * Weatherall v. Geering, 12 Ves., 504. '^ Dowell v. Dew, i Y. & C. C. C, 345. 2 Collyer v. Fallon, i T. & R., 459. * Davis V. Duke of Marlboroug-h, I Svvanst., 79 ; McCarthy v. Goold, i Ball & B., 387; Flarty v. Odium, 3 Term. R., 681 ; Tunstall v. Boothby, 10 Sim., 540 ; Grenfell v. Dean of Windsor, 2 Beav., 544. When an assignor has for- feited his right to a specific performance by a refusal to perform, the assignee of the obligation cannot enforce performance. Frazier v. Broadnax, 2 Litt. Ky., 249. " Wells V. Foster, 8 M. &. W., 149. ' Hill v. Paul, 8 CI. & Fin., 295. ' Wilson \^ Short, 6 Hare, 366. ' Prosser v. Edmonds, i Y. &C., Ex. 481. In this case Lord Abinger, among other things, said : " Where an equitable interest is assigned, it appears to me, that in order to give the assignee a locus stand/ in a court of equity, the party assigning that right must have some substantial possession, some capability of personal enjoyment, and not a mere naked right to overset a legal instrument. For instance, that a mortgagor who conveys his estate in fee to a mortgagee, has in himself an equitable right to compel a re-conveyance when the mortgage money is paid, is true. But that is a right reserved to himself by the original security. It is a right coupled with possession and receipt of rent, and he is protected so long as the interest is paid ; and it does not follow that the assignee of the mortgage and the mortgagee may not adjust their rights without the in- tervention of a court of equity. In the present case, it is impossible that the assignee can obtain any benefit from his security, except through the medium of the court. He purchases nothing but a hostile right to bring parties into a I02 WHO MAY SUE OR BE SUED. § 74. On the latter ground specific performance was refused of an agreement, by a person out of possession, to grant a present lease to a party who knew at the time that he could not obtain possession without a suit/ Upon the same principle contracts by which public companies seek to delegate powders with which they are entrusted by statute, involving special responsibilities which do not at- tach to the parties contracted with, are incapable of being enforced in equity/ court of equity as defendants to a bill filed for the purpose of obtaining the fruits of his purchase. So, where a person takes an assig-nment of a bond he has the possession ; and although a court of equity will permit him to file a bill on the bond, it does not follow that he is obliged to go into a court of equity to enforce payment of it. So, other cases might be stated to show that where equity recognizes the assignment of an equitable interest, it is such an interest as is also recognized by third persons, and not merely by the party insisting on it. What is this but the purchase of a mere right to recover ? It is a rule, not of our law alone, but of that of all countries, that the mere right of purchase shall not give a man a right to legal remedies. The contrary' doctrine is no- where tolerated, and is against good policy. All our cases of maintenance and champerty are founded on the principle that no encouragement should be given to litigation by the introduction of parties to enforce those rights which others are not disposed to enforce." "It is the opinion of some learned persons that the old rule of law, that a chose in action is not assignable, was founded on the principle of the law not permitting a sale ol a right to litigate. That opinion is to be met with in Sir William Blackstone, and the earlier reporters. Courts of equity, it is true, have relaxed that rule ; but only in the cases which I have mentioned, where something more than a mere right to litigate has been as- signed. Where a valuable consideration has passed, and the party is put in possession of that which he might acquire without litigation, there courts of equity will allow the assignee to stand in the right of the assignor." ' Bayly V. Tyrrell, 2 Ball & B., 358. In Williams v. Evans, i C. B., 717, tried in the English court of common pleas. A., the owner of a term, having died in 1828, B., his brother, who had previously been in possession of a portion of the premises, took and remained in possession of the whole until 1829, when he died leaving all his interest in the property to C, who thereupon entered and continued in undisputed possession until 1841, when D., a brother of A., took out letters of administration, and sold his interest in the property, as such ad- ministrator, for ten pounds. The transaction was held void, both at common law and under the statute of 32 Henry VIII., Ch. 9, which prohibits any person from selling or buying any pretended rights or titles to any lands, unless the vendor has been in possession of the same, or of the reversion, or in receipt of the rents thereof, for a year before the sale. But the sale of an expectancy is not within the mischief of the foregoing statute ; such a sale not being a claim to any present right or title, but ol the possibility that one may thereafter exist. Cook V. Field, 15 Q. B., 460 ; Fry on Specif. Perform., 55, 56. * Johnson v. Shrewsbury & Birmingham R.R. Co., 3 De G. M. & G., 914 ; Reman v. Rufford, i Sim. N. S., 550 ; S. C. 7, Rail. C, 48 ; Gt. Northern R.R. Co. v. Eastern Counties R.R. Co., 9 Hare, 306. Although a concluded con- tract may be assignable, yet it is otherwise as to a mere offer. " In case of an offer by A. to sell to B., an acceptance of the offer by C. can establish no con- tract \vith A., there being no privity." Fry on Specif. Perform., 57 ; Meynell v. Surtees, 3 Sm. & G., loi, 117. § 75- LIABILITY OF ASSIGNEE WITH NOTICE. IO3 § 75. Liability of assig-nee with notice. — Where a party having entered into an agreement for sale, afterward aliens or assigns the property, or contracts to do so, to a person who has notice of the original contract, the latter will be liable to perform it at the suit of the purchaser/ And we have seen that all persons having, or claiming to have, an interest in the land, obtained after the date of the contract sought to be specifically enforced, with notice, are neces- sary parties in a suit to compel conveyance/ " If the con- tract is a binding one, it can be enforced against any party in whom is vested the legal and beneficial interest in the property."* " If he is a purchaser with notice, he is liable to the same equity, stands in his place, and is bound to do that which the person he represents would be bound to do by the decree." ' The following case illustrates this princi- ple : A., w^ho was the lessee of a college, executed a sub- 1 Howard v. Hopkins, 2 Atk., 371 ; Ford v. Crompton, 2 Bro. C. C, 32 ; Jackson's Case, 5 Vin. Abr., 543, PI. 3; Jalabert v. Duke of Chandos, i Ed., 372; Brooke v. Hewitt, 3 Ves., 253; Knollys v. Alcock, 5 lb., 648; Crofton v. Ormsby, 2 Sch. & Lef., 583 ; Meux v. Maltby, 2 Swanst., 277 ; Spence v. Hogg, I Coll. C. C, 225 ; Dowell v. Dew, i Y. & C. C. C, 345 ; Goodwin v. Fielding, 4 De G. M. & G., 90 ; Potter v. Saunders, 6 Hare, i ; Shaw v. Thackray, i Sm. & G., 537 ; Hersey v. Giblett, 18 Beav., 174; Foss v. Haynes, 31 Me., 81 ; Laverty V. Moore, 33 N. Y., 658 ; New Barbadoes Toll Bridge v. Vreeland, 4 N. J. Eq., 3 Green, 157. ■ Ajite, § 64. See Morris v. Hoyt, 11 Mich., 9 ; Seager v. Burns, 4 Minn., 141 ; Stone V. Buckner, 12 Smed. & Marsh, 73 ; Scarborough v. Arrant, 25 Texas, 129; Fullerton v. McCurdy, 4 Lansing, N. Y., 132. Where a person contracts to sell land, and subsequently conveys the same to a third party who has notice of the prior contract of sale, such third party stands in the place of his vendor; and if equity would decree specific performance against such vendor, it will ren- der a like decree against such subsequent purchaser. Information, from what- ever source derived, which would excite apprehension in an ordinary mind, and prompt a person of average prudence to make inquiry, will be sufficient notice. Notice to the agent in such case, will be notice to the principal, even though the principal takes the matter out of the agent's hands while the latter is engaged in the negotiations, and completes it himself. Bryant v. Booze, 55 Ga., 438. ^ Lord St. Leonards, in Saunders v. Cramer, 3 Dr. & W., 99. * Lord Rosslyn, in Taylor v. Stibbert,.2 Ves. Jun., 437. Where land has been sold by a vendor subsequent to a written agreement by him, that he will convey to another person in a certain event, in a bill by such person against the vendee, the vendor, or his personal representatives, should be made parties. Lewis v. Madison, i Munf., 303 ; Dailey v. Litchfield, 10 Mich., 29. In a suit for specific performance, by the obligee of a bond conditioned to convey real estate, one who has purchased from the obligor after the obligee's note given for the pur- chase money was overdue, is not a proper party. In such case, the obligor and his heirs are the proper defendants. Harrington v. Pinson, 30 Miss., 30. I04 WHO MAY SUE OR BE SUED. § 75. lease of certain land for fourteen years, and covenanted to take a new lease from the college, and to renew the plain- tiff's lease with three years added to it, or answer the want thereof in damages, and that the wood granted to the plain- tiff by the lease, was to be full fourteen years' growth be- fore it could be cut. A. havingr renewed and assio-ned his lease to B., who had notice of A.'s covenant with the plain- tiff, it was decreed that B. should execute to the plaintiff a new lease with the additional three years, pursuant to A.'s covenant.' So, if a person who has a prior title, gets in the subsequent estate which is affected by the contract, with notice of it, his elder title will not protect him from the performance of the contract. Where, therefore, an equitable mortgagor entered into a contract for a lease, and afterward the mortgagee, whose mortgage was prior to the agreement, purchased the estate with notice, he was held liable to specifically perform the agreement.* And where A., who had only the equity of redemption, agreed to sell to B., and afterward A. and his mortgagee conveyed to C, who had notice of A.'s contract with B., it was held that B. was entitled to specific performance on the part of C* 1 Finch V. Earl of Salisbury & Hawtrey, Finch, 212. 5 Smith V. Phillips, i Ke., 694. ^ Lig-htfoot V. Heron, 3 Y. & C. Ex., 586. In Bird v. Hall, 30 Mich., 374; Bird having contracted to purchase certain land of Hall, and partly paid for it, contracted to sell the same land to McFee, who also partly paid for it and was put in possession, the balance of the purchase money not being yet due. After- ward Hall, disregarding the rights of Bird, conveyed the land to McFee, who was irresponsible, thus depriving Bird of his security for what was thereafter to become due him from McFee. A bill was thereupon filed by Bird, praying that McFee might be decreed to convey to the complainant, in specific performance of the contract of Hall, in whose shoes as his assignee he then stood. Cooley, J., delivering the opinion of the court, said : "It seems clear, that a conveyance as prayed by the bill, would be strictly equitable, as it would place the parties where they have agreed to place themselves by their contracts. Complainant was entitled to a conveyance from Hall on payment of the balance due him, which he has offered to make ; and he was then entitled to hold the title, until he was paid in full by McFee. This is conceded by defendants. But they msist that complainant has, at law, an ample remedy against Hall, if he suffers a loss in consequence of Hall's conveyance to McFee ; and that as it is not alleged that Hall is irresponsible, there is no sufficient ground for equitable interference. What complainant loses by this conveyance, is his security for the ultimate pay- ment by McFee. Whether a loss of the security would result in a loss of the debt, cannot yet be determined ; and any present right of action at law would give him nominal damages only. A right of action against him at a future day, §§ 1^-1^- LIABILITY OF ASSIGNEE OF EQUITABLE TITLE. IO5 Where one holds a deed as an escrow, and refuses to de- liver the same, in a suit for specific performance of the in- strument, he is a proper party.' § 76. Extent of rule as to notice. — The principle of no- tice is not restricted to contracts of sale, but is equally- applicable to all agreements and covenants binding the land in equity, which may be enforced against any person into whose hands the land may come. Specific perform- ance will therefore be granted of all covenants perma- nently affecting the enjoyment of the land, which are en- forced in equity against all subsequent purchasers with notice, whether the covenants be or be not such as would run with the land in the hands of subsequent purchasers at law.' And contracts to devise lands have been enforced against persons claiming them under the party contracting to make the will' %']']. Liability of company upon formation of new com- pany. — A species of assignment results when a railroad or other public company, after entering into a contract, be- comes consolidated with another company ; liability under the then existing contracts of the company being trans- ferred to the new company thus formed.' § 78. Liability of assignee of equitable title. — An agree- after the personal remedy against McFee had proved ineffectual, might or might not find him in a condition to respond, even if it be conceded that at present he is entirely responsible. Complainant cannot justly be compelled to run this risk. These parties cannot be allowed to deprive him of his security, and turn him over to the contingencies of successive suits at law after his demand has ma- tured. He has a right to be protected against .the suits and contingencies, by having ample and effectual security in his own hands, and the remedy in equity was alone adequate to the case." ' Davis V. Henry, 4 West Va., 571. ^ Tulk V. Moxhay, 2 Ph., 774 ; Cole v. Sims, Kay, 56. ^ Goylmer v. Paddiston, 2 Ventr., 353 ; S. C. as Goilmere v. Battison, i Vern., 48. As to agreements to make wills containing peculiar dispositions, see Lord Walpole V. Lord Orford, 3 Ves., 402; Jones v. Mertin, 5 lb., 266, note ; Fortes- cue V. Hennah, 19 lb., 67 ; Needham v. Kirkman, 3 B. & A., 531 ; Needham v. Smith, 4 Russ., 318; Logan v. Weinholt, i CI. & Fin., 611 ; Jones v. How, 7 Hare, 267 ; Barkworth v. Young, 4 Drew, i ; Eyre v. Menro, 26 L. J. Ch., 757. " Stanley v. Chester & Birkenhead R.R. Co., 9 Sim., 264; S. C. 3, M. & Cr., 773; Earl of Lindsey V. Gt. Northern R.R. Co., 10 Yi2iXt, (>(ii„ and cases cited and cotnmented on. I06 WHO MAY SUE OR BE SUED. § 79. mcnt entered into by the owner of a chattel with the equi- table owner of one-half of the chattel, to hold such half interest subject to the order of a third person, and an as- signment of it to a party having knowledge of the agree- ment, may be enforced against the assignee.' Where there is a purchase of real or personal property from the legal owner, to which a third person has an equitable title, and the purchase is made in the usual course of business, with- out notice of the equitable title, for a valuable consideration, or if the purchaser incurs any new responsibilities upon the credit of it, he is considered a bona fide purchaser, against whom the owner in equity can have no relief. But if no consideration is paid, and the property is assigned, and re- ceived in payment of, or as security for, a pre-existing debt, the assignee must take it subject to all the equity to which the assignor was subject.^ Where A. contracted for the purchase of lands, became insolvent, and assigned them to pay certain debts and to return the residue to himself, and B., a creditor not included in this assignment, with notice of A.'s claim purchased the lands of the owner for the sum due on A.'s contract, it was held that he could not be com- pelled to convey to A.'s assignees until his debt and the purchase money were paid to him.' § 79. Suit by holder of equitable title. — Parties whose interests are merely equitable may represent the inheritance in a bill for specific performance ; as, for instance, the ten- ant for life and the contingent remainder man in fee, pro- vided the issue of the remainder man will take, if he fails to do so by reason of the contingency.* Where the grantee of an equitable title to land seeks to compel a conveyance of the legal title, his grantor need not be made a party.' The owner of an equitable interest in land agreed to con- vey an interest therein to another, subject to the approval ' Clark V. Flint. 22 Pick., 231. ' Root V. French, 13 Wend., 573 ; Buffinglon v. Gerrish, 15 Mass., 156. ^ Suydam v. Mastin, Wright, 698. ^ Sohier v. Wilhams, i Curtis, 479. Elliott V. Armstrong, 2 Blackf., 198. §§ 8o, 8 1. LIABILITY OF PUBLIC COMPANY. IC7 of the holder of the legal title, and with his knowledge ; the purchaser agreeing to build a depot and side track near the same, which he did at his own expense, thereby greatly increasing the value of the tract. Held, that the contract should be enforced subject to the rights of the holder of the legal title for any sum due him.' § 80. Notice to vendor of agreement of vendee to assign contract. — A vendor of land may receive the balance of the purchase money and convey the land to the purchaser, without regard to the receipt of a notice from a third per- son that the purchaser had agreed to assign the contract to him.'' A vendor agreed to sell leaseholds, which were un- der a heavy rent, and received part of the purchase money. The purchaser afterward agreed to assign to a bank the contract of purchase by way of security for money ad- vanced, and the bank notified the vendor of this agree- ment. The bank afterward refused to complete, but this was not known to the vendor. The purchaser, after the time fixed for completion, paid the balance of the pur- chase money; the vendor executed an assignment to him; and the purchaser conveyed to an assignee without notice of the security to the bank. Held, that the vendor had a right to complete without giving notice to the bank, and that the bank had no remedy against him.^ § 81. Doctrine as to liability of public company ttndcr contract of its promoters. — An exception to the general rule, that those who entered into the contract are alone proper parties to the suit, arises in the case of a public company sued for the specific performance of contracts entered into by its promoters previous to its incorporation, the company standing in the place of the promoters.' The principle is said to have been first introduced in the case of ' Booders v. Murphy, 78 111., 81. ^ Suydam v. Mastin, Wright, 698. ^ M'Creight v. Foster, L. R. 5, Ch. 604. ^ Caledonian & Dumbartonshire Junction R.R. Co. v. Magistrates of Helens- burgh, 2 M'Q., 394. See ante, § 50. T08 WHO MAY SUE OR BE SUED. § 8 1. Edwards v. The Grand Junction R.R. Co.," in which the agent of the promoters of a raih'oad entered into an agree- ment with the trustees of a pubHc highway, during the pendency of the railway bill before Parliament, as to cer- tain clauses which the trustees wished to have inserted in the bill, and to have the same confirmed under the seal of the company proposed to be incorporated ; the trustees agreeing to offer no opposition to the bill, and that the contract should be void when the agent delivered to the trustees the engagement of the proposed company to the same effect. The railroad bill having passed, the company undertook to make a road across the railway of a less width than that stipulated for by the before-mentioned clauses. In a suit brought by the trustees against the company for specific performance and an injunction, the company was held bound by the agreement entered into by the agent of the promoters. Lord Cottenham, in delivering the judgment of the court, said : "The question is not whether there be any binding contract at law, but whether this court will permit the company to use their powers under the act in direct opposition to the arrangement made with the trustees prior to the act upon the faith of which they were per- mitted to obtain such powers. If the company and the projectors cannot be identified, still it is clear that the com- pany have succeeded to, and are now in possession of, all that the projectors had before. They are entitled to all their rights and subject to all their liabilities. If any one had individually projected such a scheme, and in the prose- cution of it had entered into arrangements, and then had sold and assigned all his interest in it to another, there would be no legal obligation between those who had dealt with the original projector and such purchaser. But in this court it would be otherwise. So here, as the company stand in the place of the projectors, they cannot repudiate arrangements into which such projectors had entered. ' I M. & Cr., 650; I Rail. C, 173; 7 Sim., 337. §§ 82, St,. contract of promoters. 109 They cannot exercise the powers given by ParHament to such projectors, in their corporate capacity, and at the same time refuse to comply with those terms upon the faith of which all opposition to their obtaining such powers was withheld.'" § 82. Co7itract of promoters must have been adopted by company. — To render the doctrine in question applicable, the company, after its incorporation, must have taken the benefit of the agreement, and thus adopted it by the enjoy- ment of the consideration. It is not sufficient, however, that the opposition to the proposed bill was withdrawn, that being a consideration moving, not to the company, but to the promoters. Accordingly, where a company hav- ing been incorporated in consequence of the withdrawal of the plaintiff's opposition, did not enter upon the land, or in any way adopt the contract, except by unsuccessful negotia- tions, specific performance of the contract was refused, and the court declined to order the defendants to admit the validity of the contract in an action at law.* It has been considered that the cases do not proceed on the principle of contract through the agency of the promoters, but on the ground "that the court will not allow a body to exer- cise powers acquired by means of a previous contract, with- out carrying such contract into full effect. To this extent the court acts negatively. But having once acquired juris- diction, its action is positive as well as negative ; and there fore it will not merely restrain the doing of acts contrary to the agreement, but will enforce every portion of it."^ § 83. Contract of projnoters must be capable of perform- 1 See Stanley v. Chester & Birkenhead R.R. Co., 3 M. & Cr., 773 ; S. C. i Rail C, 58; 9 Sim., 264; Lord Petre v. Eastern Counties R.R. Co., i Rail C, 462; Greenhalgh v. Manchester & Birmingham R.R. Co., 3 M.& Cr., 791 ; Vaux hall Bridge Co. v. Ear! Spencer, Jac, 64 ; East London Water Works v. Baily, 4 Bing., 283. ° Gooday v. Colchester, etc., R.R. Co., 17 Beav., 132; Williams v. St. Georges Harbor Co., 3 Jur. N. S., 1014 ; Preston v. Liverpool, Manchester, and Newcastle R.R. Co., 17 Beav., 115. ' Fry on Specif. Perform., 64 ; Earl of Lindsey v. Gt. Northern R.R. Co., 10 Hare, 664; Eastern Counties R.R. Co. v. Hawkes, 5 House of Lds., 356. I lO WHO MAY SUE OR BE SUED. § 83 ance by company. — The agreement must likewise be for something warranted by the terms of the incorporation, and which the company has therefore power to perform. Where the magistrates of a certain town agreed with the promoters of a railroad, to afford the proposed company facilities for the construction of the road through the town, and to petition Parliament in favor of the bill, the promo- ters stipulating that the company should pay for the con- struction of a quay and harbor, which the magistrates were to apply to Parliament for power to make, specific perform- ance w^as refused on the ground tha.t the act to be done by the company would not be within its powers when incor- porated ; the arrangement being for the application of the funds raised under legislative authority for the purposes of the railway, to an object foreign thereto,' So, an agreement, by the promoters, to pay five thousand pounds to a person for not opposing a bill in Parliament, w^as held beyond the powers of a railroad company when incorpo- rated, and therefore incapable of being enforced against the company." ^ Caledonian and Dumbartonshire R.R. Co. v. Magistrates of Helensburgh, supra, . '^ Preston v. Liverpool, Manchester, and Newcastle Junction R.R. Co., 5 House of Lds., 0*05, 621. And see Leominster Canal Co. v. Shrewsbury and Hereford R.R. Co., 3 K. and J., 654. It has been seriously questioned whether a public company, after its incorporation, could be sued for the specific performance of contracts entered into before the passing of its act, by the promoters, on the ground that the company stands in the place of the promoters. The doctrine was acted on by Lords Cottenham, Campbell, and St. Leonards, but it was criti- cised by Vice-Chancellor Wood, and disapproved by Lords Brougham and Cran- worth. In the Caledonian and Dumbartonshire Junction R.R. Co. v. Magis- trates of Helensburgh, 2 M'Q., 391, the latter observed that the doctrine in ques- tion could only be supported on the assumption that the company, when incor- porated, was, in substance, though not in form, a body succeeding to the rights, and coming into the place, of the projectors, which he argued was not the case ; that the incorporated body was not confined to the projectors, and might even include none of them ; that the act, when passed, became the charter of the com- pany, prescribing its duties, and declaring its rights ; that all persons becoming shareholders had a right to consider that they were entitled to all the benefits held out by the act, and liable to no obligations beyond those which were there in- dicated ; that to permit other terms to be imposed on the shareholders beyond the conditions of incorporation, would lead to the injury of the shareholders, and often to a fraud, or at least surprise, on the legislature ; and that to render special terms binding on the company, they ought to be the subject of special clauses m the act, whereby the whole truth could be disclosed. See Fry on Specif. Per- form., 66 ; Williams v. St. G.'s Harb. Co., 3 Jur. N. S., 1014. § 84. AGENT NOT IN GENERAL A PROPER. PARTY. Ill § 84. Agent not in general a proper party. — Contracts made by agents, sometimes give rise to an exception to the rule, that only those who enter into the contract are proper parties to the suit. When the agent contracts as such, in the name of his principal, the agent ought not in general to be made a party.' A., as the agent of B., contracted to sell land belonging to another, who afterward adopted the sale. In a suit to enforce specific performance against the owner of the land, it was held that B., and the heirs of A., were improper parties." But it is otherwise, when the agent appears on the face of the agreement as a principal, or there is no proof of the agency, or there are special circumstances rendering it proper to make the agent defendant, as where he claims to have made the agreement for his own benefit.' If the agency be not apparent on the contract, the nominal contractor should, unless the plaintiff can prove the agency, be made a party to the suit as a defendant.' Where the contract is made with an agent, and is under seal, in a suit for specific performance by the principal, the defendant has a right to have the agent made a party.' In a suit by the vendor of land sold at auction, the auctioneer may be joined as plaintiff, on the ground that he is interested in the con- tract, or is liable for the deposit. ° In general, an auctioneer ' Macnamara v. Williams, 6 Ves., 143 ; Smith v. Clarke, 12 lb., 477 ; King of Spain V. De Machado, 4 Russ., 225 ; Dahoney v. Hill, 20 Ind., 264. *Roby V. Cossit, 78 111., 638. * Taylor v. Salmon, 4 M. and Cr., 134. See Marshall v. Sladden, 7 Hare, 428 ; Lees V. Nuttall, i R. and M., 53. A contract under seal entered into by A. B. "in behalf of the city of Providence," but signed by A. B., who was Mayor of the city, in his own name, was held not the contract of the city, but of A. B. per- sonally, and a demurrer to a bill for specific performance filed by the city was sustained. City of Providence v. Miller, 11 R. L, 272. * I Danl. Ch. Pr., 205 ; Fulham v. McCarthy, i H. L. C, 703 ; Chadwick v. Maden, 9 Hare, 188. In Nelthorpe v. Holgate, i Coll., 217, ?,i8, it was held that an agent might join as co-plaintiff. ^ ^ Cooke V. Cooke, 2 Vern., 36 ; Cope v. Parry, 2 Jac. and W., 538. i Danl. Ch. Pr., 4th Am. Ed., 195. ^ Jones v. Littledale, 6 A. and E., 486 ; Magee v. Atkinson, 2 M. and W., 440. If an agent in his own name, but on behalf of his principal, enters into an agree- ment to execute a lease of lands of his principal, he will be personally liable for the execution of the same. Norton v. Herron, i C. and P., 648 ; S. C, i R. and M., 229 ; Turner v. Christian, 29 Eng. L. and Eq., 103 ; Lennard v. Robinson, 32 lb., 127 ; Kennedy v. Gouveia, 3 Dowl. and Ryl., 503 ; Meyer v. Barker, 6 Binn, 112 WHO MAY SUE OR BE SUED. § 85. holding the deposit on a purchase, should not be made a de- fendant when the deposit is small, unless he refuses to pay it into court when required. But when the deposit is a con- siderable sum, he may be made a defendant unless he has paid it into court before suit brought.' § 85. When agent liable. — If an agent contract as princi- pal, he is liable on the contract as principal, in cases of spe- cific performance in equity, as well as of damages at law.' " It is competent to show that one or both of the contract- ing parties were agents for other persons, and that they acted as such agents in making the contract, so as to give the benefit of the contract to, and charge with liability, the unnamed principal, whether the agreement is, or is not, re- quired to be in writing by the statute of frauds. This evi- dence in no way contradicts the written agreement. It does not deny that it is binding on those whom, on the face of it, it purports to bind ; but shows that it also binds another, by reason that the act of the agent in signing the agree- ment in pursuance of his authority, is in law the act of the principal. But on the other hand, to allow evidence to be given that the party who appears on the face of the instru- ment to be personally a contracting party, is not such, would allow parol evidence to contradict the written agreement, which cannot be done.'" Where the contract was entered 228, 234. But if he enter into a written contract describing himself as agent, and naiTg'ng his principal, he is not personally liable, unless he had no authority to make the contract, or in making it exceeded his authority. Downman v. Jones, 9 Jur., 454, Ex. Ch. So, although a person without authority signs an in- strument in the name of, and as agent for, another, he cannot be treated as a party to such instrument, and be sued upon it, unless he is shown to have been in reality the principal. Dart's V. and P., 85. 'Earl of Egmont v. Smith, L. R. 6, Ch, D. 469. ^ Jones V. Littledale, 6 A. and E., 486 ; Magee v. Atkinson, 2 M. and VV., 440. ^Higgins V. Senior, 8 M. and W., 844. In Williams v. Chrislee, 4 Duer, 29, the court, per Bosworth, J., said : " We consider the doctrine well settled, that every written contract made by an agent, in order to be binding on his principal, must purport on its face to be made by the principal, aiul must be executed in his name, and not in the name, of the agent. It cannot be shown by parol, that the alleged agent in signing his own name to the contract, in fact signed his name as agent, and thus convert a contract which, on its face, is his own, into a contract of his alleged principal, and make it enforceable as such. This would be altering the plain meaning and clear legal import of written contracts, 5 86. LIABILITY OF PRINCIPAL. II3 into by the agent in his own name, and he urged that, as he was a mere agent, the bill ought to be dismissed as against him, the court said that " the signing of the agree- ment was sufficient to subject him to the liability of per- forming it.'" " It would appear, that if at the time the contract was signed, both A. and B. understood that A. was acting as the agent of C, and B. were afterward to sue A. for specific performance as principal, A. might allege the understanding between himself and B. at the time, and give parol evidence of it, and that if the allegation were proved, it might furnish a valid defence, though the circum- stances supposed would, of course, furnish no defence at law, unless by way of equitable plea."" § 86. Liability of principal on conti^act of agent. — Whether where a person, appearing as principal, in fact contracted as agent for another, the latter can, when dis- closed, sue or be sued as principal, may depend upon the consideration as to whether or not one party relied on the personal qualifications of the other. If in a contract be- tween A. and B. it can reasonably be presumed that B. relied on A. personally, A. cannot declare himself the agent of C. in the transaction. So, if A. were to enter into an agreement with B. for the purchase from him of his estate, B. could not aftCrward announce himself as the agent of C, who, not having the estate, could not perform the contract. It is said to hold good universally that a contracting party cannot " declare himself the agent of an unnamed principal, except where the contract, if really 'made by the contracting party, might have been assigned by him to the party suing as principal." ' Railway directors by unwritten evidence, which is inadmissible." And see Minard v. Mead, 7 Wend., 68 ; Spencer v. Field, 10 lb., 88 ; Evans v. Wells, 22 lb., 337 ; Stephens V. Cooper, i Johns. Ch., 429; Newcomb v. Clarke, i Denio, 226; Fenly v. Stew- art, 5 Sandf , loi ; McTyer v. Steele, 26 Ala., 487 ; Matter of the Bank of British North America, 5 Gray, 567. See, however, Huntingdon v. Kno^:, 7 Cush,, 371 ; Edwards v. Simmons, 27 Miss., 302; Ruiz v. Norton, 4 Cal., 355. ' Chadwick v. Maden, supra. ^ Fry on Specif. Perform., 69, 70 ; Higgins v. Senior, supra. 3 Fry on Specif. Perform., 68 ; an/e, § 72. Where a party to a contract for 8 114 WHO MAY SUE OR BE SUED. § 8/. are agents of the company, and their personal liability in a suit upon a contract made by them must be governed by the ordinary law of principal and agent. But a share- holder may maintain a bill against directors personally where he charges them as trustees, and seeks redress against them for a breach of duty to the company of which he is a member." It will often happen that a suit for specific performance against an agent will fail from his in- capacity to perform the subject of it. No one person can maintain a suit for the specific performance of a public duty imposed for the public benefit.' ^ § 87. Death of party to co7itract who was its induce- ment. — When the death of a party determines the interest (as in the case of a tenant for life, or of one who has a temporary or contingent interest, or an interest defeasible upon a contingency), and there is no other plaintiff or de- fendant, there is an end to the suit.' But if such interest survives to the remaining party, and there is no demand against the representatives of the deceased, the proceed- ings do not abate.* When the moving inducement to the contract was the learning, genius, skill, taste, or other per- sonal qualification of one of the parties, his death dis- charges the contract, and no liability attaches to his per- sonal representatives for non-performance after his decease ; ' the personal services of an individual being incapable of performance by another, either before or after his death.' If an author agrees to write a work, and dies previous to completion, the contract cannot be enforced against his the purchase of land acted not only for himself, but for his co-plaintiff, it was held that the latter was entitled to the benefit of the contract sought to be en- lorced. Washburn v. Fletcher, 42 Wis., 152. ' Ferguson v. Wilson, L. R. 2, Ch. T] . "^ Getty V. Hudson River R.R. Co., 2 Barb., 617, ' Story's Eq. PI., Sec. 356. ^ Ibid, Sec. 357. In Iowa, under the statute either party may come into court to enforce the contract, or the administrator may ask for power to make the conveyance. Collins v. Vandever, i Iowa, 573. '' Siboni v. Kirkman, i M. & W^, 423. * Clark V. Gilbert, 32 Barb., 581. See ante, % 72. § 87. DEATH OF PARTY TO CONTRACT. II5 executors/ So, where a master who has engaged to in- struct an apprentice, dies before the end of the term, his representatives will be excused/ The same principle was held applicable to an agreement to build a lighthouse, the construction of which called for science and skill/ ' Marshall v. Broadhurst, i Tyrvv., 349; S. C. I, Crompt. & Jer., 405. * Baxter v. Burfield, 2 Str., 1266. Wentworth v. Cock, 10 Ad. & E., 45. CHAPTER II. PLEADINGS. 88. Must appear that there is no remedy at law. 89. Incumbent on plaintiff to show affirmatively that he is entitled to relief. 90. Case to be set out with cleamess. 91. Must be shown that contract is capable of being enforced. 92. In case of agency. 93. How contract should be averred. 94. Description of land. 95. Averment of consideration. 96. Plaintiff must allege performance. 97. Averment of demand and refusal. 98. Injury must be alleged. 99. Must be a prayer for relief 100. Cross bill when to be filed. loi. Where the answer sets out a different contract. 102. Demurrer in case of agreement within the statute of frauds, 103. Objecting statute of frauds by plea or answer. 104. Defence that wife did not join in contract. 105. Where new matter is set up not responsive to bill. § 88. M7Lst show that thci'c can be no redress at law. — Unless the bill, answer, and exhibits render clear the rights of the parties seeking specific performance, a decree will be refused.' It is incumbent upon the plaintiff to show that he cannot be indemnified in damages for the breach of the contract ;' and if he omit to allege, or it does not appear from the facts disclosed in the bill, that he has not a com- plete remedy at law, the defendant may demur to the bill ' Waters v. Brown, 7 J. J. Marsh, 123. To entitle the plaintiff to show fraud in the defendant as the ground of a decree for the specific performance of an agreement, it must be substantially alleged in the bill. Sawyer v. Mills, 20 L. J. Ch., 80 ; Hayward v. Purssey, 3 De G. & Sm., 399 ; Crocker v. Higgins, 7 Conn., 34; Booth V. Booth, 3 Litt., 57 ; Miller v. Colton, 5 Ga., 346 ; Governeur v. El- mendorf, 5 Johns. Ch., 79 ; Magniac v. Thomson, 2 Wall, Jr., 209. If there be unfounded allegations of fraud, or no averment of fraud or injury, this circum- stance may be taken into account by the court in determining whether or not to grant the relief asked. Price v. Berrington, 3 M. & G., 486; Eyre v. Potter, 15 How., 56; Fisher V. Boody, i Curtis, 211 ; Ellerbe v. Ellerbe, 42 Ala., 643. * Powell V. Central Plank Road Co., 24 Ala., 441 ; McClane v. White, 5 Minn., 178. But see ante, § 5. § 89. WHEN PLAINTIFF IS ENTITLED TO A DECREE. II7 on that ground.' But in a suit for the specific performance of a contract for the sale of land, the complainant may shape his bill, either to obtain specific performance or a can- celment of the contract, even though he might have had an action at law on the covenant."" A bill to compel a vendee to pay the purchase money may sometimes be sustained in equity ; but not where it alleges only the facts ordinarily set forth in a declaration in debt, covenant, or assumpsit, in a suit at law" for the purchase money.' Where land is sold under an order of the court, and the purchaser signs an acknowledgment of the purchase, and fails to complete it, the officer making the sale, who is the only necessary party complainant, may file a bill for specific performance with- out the direction of the court, and it will not be a ground of demurrer that the purchaser might have been compelled to abide by his contract by attachment for contempt.' § 89. Must appear from bill that plaintiff is entitled to a decree. — To entitle a complainant to a decree for specific performance, he must show affirmatively that he ought to ^ Botsford V. Beers, 11 Conn., 369; Prewitt v. Jenkins, i Blackf., 294; Noyes V. Marsh, 123 Mass., 286; ante, § 9. Where the plaintiff averred a sale at a stipulated sum, increased by a contingency alleged to have happened, and prayed for a decree for the balance unpaid, his bill was dismissed on the ground that he had a competent remedy at law. Kauffman's Appeal, 55 Pa. St., 383. 2 Mills V. Metcalf, i A. K. Marsh, 477. A bill which seeks specific perform- ance must be framed with that view. Pitts v. Cable, 44 111., 103. Under the statute of Massachusetts of 1853, Ch. 371, an action for relief in equity to enforce the specific performance of a contract is to be treated as a suit in equity. Irvin V. Gregory, 13 Gray, 215. .' Kauffman's Appeal, supra. ^ Bowne v. Ritter, 26 N. J. Eq., 456. When property is sold pursuant to an order of court, the usual method of compelling a purchaser to complete his pur- chase, is by an order to show cause why an attachment should not issue against him as for contempt. But the parties in interest may, if they see fit, file a bill for specific performance ; and sometimes the court will itself, in a case of doubt, and where the ends of justice will be served by it, direct that to be done. But the fact that the bill was filed without the direction of the court, cannot be ob- jected by the defendant. Ibid. See Brasher v. Cortlandt, 2 Johns. Ch., 505 ; Wood v. Mann, 3 Sumner, 318; Gordon v. Saunders, 2 McCord Ch., 151 ; Ely V. Perrine, 2 N. J. Eq. ; i Green, 396; Cazet v. Hubble, 36 N. Y., 677 ; Silver v. Campbell, 25 N. J. Eq. , 465. Under special circumstances, a receiver has been appointed as between a vendor and purchaser during a suit for specific perform- ance. Hall V. Jenkinson, 2 Ves. and B., 125 ; Boehm v. Wood, 2 J. and W., 236 ; Shakel v. Marlborough, 4 Mad., 463. Il8 PLEADINGS. § 89. have relief ;' but he need not allege the defendant's ability to perform." The bill should state the case with reasonable certainty and precision, and contain every averment requi- site to entitle the plaintiff to the relief asked ; as a defect in this respect cannot be supplied by inference.' Where sev- eral are joined as plaintiffs, if the bill shows that their claims are inconsistent, or if any of them have no claim, the misjoinder will either be fatal to the suit, or the court will only make such a decree as will leave their claims, in' respect to each other, undecided." But if one of several plaintiffs, who are properly joined, claims further relief peculiar to himself, it is not a ground for demurrer.' If there be an averment of a devise, a will in writing must be alleged." So, in the case of a grant, a deed must be alleged." But public statutes and other matters, of which the court takes judicial notice, need not be set forth." A bill which shows that the contract sought to be enforced is within the statute of frauds, is demurrable." But although a bill which prays ' Morey v. Farmer's Loan, etc., 14 N. Y., 302 ; Clough v. Hart, 8 Kansas, 487. In equity " the object aimed at is a complete decree on the general merits, and not that the litigation should be reduced to a single issue ; and as all issues, whether of law or fact, are decided or adjusted for decision by the court, it is not essential to keep them strictly distinct. The rules, therefore, of pleading are less stringent than at law ; but they are equally regulated by principle." Adam's Eq., 301. ^ Greenfield v. Carlton, 30 Ark , 547. See Morrow v. Lawrence, 7 Wis., 574, as to sufficiency of complaint in an action to compel a conv^eyance. ^ Hammond v. Messenger, 9 Sim., 327 ; Wright v. Dame, 22 Pick., 55 ; M'ln- tyre v. Trustees of Union College, 6 Paige Ch., 239 ; Cowles v. Buchanan, 3 Ired Eq., 374. ■* Adam's Eq., 301 ; Cholmondeley v. Clinton, T. and R., 107 ; Thurman v. Shelton, 10 Yerg., 383 ; Mix v. Hotchkiss, 14 Conn., 32 ; Ellicott v. Ellicott, 2 Md. Ch., 468. Ante, § 55. ^ Clarkson v. De Peyster, 3 Paige Ch., 320. ° See Belloat v. Morse, 2 Hayw., 157 ; Martin v. M'Bryde, 3 Ired Eq., 531 ; Van Cortlandt v. Beekman, 6 Paige Ch., 492. ' See King v. Trice, 3 Ired. Eq., 568. " U. S. V. La Vengeance, 3 Dallas, 297 ; Owings v. Hall, 9 Peters, 607. " Chambers v. Lecompte, 9 Mo., 575. If the bill shows on its face that the case is within the statute- of limitations, the plaintiff should state the facts and circumstances upon which he relies to take the case out of the operation of the statute. Dunlap v. Gibbs, 4 Yerg., 94 ; Wisner v. Barnet, 4 Wash. C. C, 631 ; Field V. Wilson, 6 B. Mon., 479 ; Humbert v. Rector of Trinity Ch., 7 Paige Ch., 197 ; Maxwell v. Kennedy, 8 How., 210. § 90- WHAT TO BE PUT IN ISSUE BY BILL. II9 for the specific performance of a parol contract to convey land, or a repayment of the purchase money, will not ordi- narily be sustained, yet in such a case, where land w^as paid for by the bond of a third person indorsed to the vendor, who obtained judgment thereon, the court ordered an as- signment of the judgment to the purchaser on his filing a bill for specific performance.' § 90. What to be put in issue by bill. — In a suit for spe- cific performance, "great accuracy of averment, and strict corresponding proof are required." * The plaintiff should therefore set out his case with such clearness, that the court can readily see the grounds upon which he relies.' When a waiver of objection to title is the ground relied on for specific performance, that question must be put in issue by the bill, or evidence will not be received to prove a waiver.* Although the plaintiff need not state conclusions of law^ derived from the facts set out, yet it has been held that when the vendor intends to rely upon the waiver by the purchaser of his right to a marketable title, he must charge such waiver, and that it is not enough to allege facts. At the same time, it would be improper to aver a waiver without stating the facts.* A bill seeking to enforce the specific performance of a contract for the sale of land, which shows on its face that one of the defendants through whom the plaintiff does not deduce his title, holds the legal title to the land by patent from the United States, must ' Ellis V. Ellis, I Dev. Eq., 398. ^Daniel v. Collins, 57 Ala., 625, per Stone, J. ^Hunter v. Daniel, 4 Hare, 420; Forsythe v. Clark, 3 Wend ,657. The con- tract must be fully and particularly stated so that it may appear to the court to possess the elements of fairness, mutuality, and certainty; unless the complain- ant, being a stranger to the contract, has no full and particular knowledge of its terms, and where defects in the averments may be supplied by the proof. Light Street Bridge Co. v. Bannon, 47 Ind., 129. * Page V. Greeley, 75 III., 400. ^Clive V. Beaumont, i De G. & S., 397 ; Gaston v. Frankum, 2 lb., 561. The court will not set aside a decree for the specific performance of a contract of purchase on account of defects in the petition, where the jury from the evidence in the case have found a contract, and a decree has been made. Despain v. Car- ter, 21 Mo., 331. I20 PLEADINGS. §§ QI, 92. also show that the legal title is subordinate to the equitable title under which the plaintiff claims.' Where suit is brought to recover damages against heirs and to enforce the specific perfoiTnance of their ancestor's contract to con- vey, the plaintiff must aver and prove that the estate is not in jprocess of administration, and that assets of the ancestor have come into the defendant's hands.' But a bill by the vendee of land praying a specific performance against the heirs need not allege that the vendor died seized, or that the title is in the defendants.' ^j^ §91- To be show7i that contract can be enforced. — To entitle a complainant to the specific performance of a con- tract, it must appear that the contract can be fairly and effectually carried out.* Where a bill to enforce a deed of trust showed on its face that the deed had been recorded, so as to give it priority over a docketed judgment, but the acknowledgment was not in conformity with the statute, and the bill was opposed by the judgment creditor, it was held that the court would take notice of the defect, though the objection was not taken in the answer.* §92. When party acted as agent. — Where the contract sought to be enforced was made by an agent, the bill must show, either by averment, or by the contract as set out, that the person executing the same was the agent of the owner, duly authorized." But the mode of execution need not be 'Cameron v. Abbott, 30 Ala., 415. "Taylor v. Rowland, 26 Texas, 293. One of the distributees of an estate as- signed to the plaintiff all his interest in the undivided assets. Held, that to entitle the plaintiff to specific performance, his bill must show that such dis- tributee, at the time of the assignment, had an interest in the undi\aded assets, and furnish the data from which such interest might be ascertained. Bogan v. Camp, 30 Ala., 276. ^ Moore v. Burrows, 34 Barb., 173. In Pennsylvania, by the statute of Feb. 24th, 1834, a proceeding was provided to enforce contracts made by a decedent for the sale o( land, by a petition in the Orphan's Court. See Weller v. Wey- and, 2 Grant Pa. Cas., 103. *May V. Fenton, 7 J. J. Marsh, 306. Steposf, Book 3, Chs. 1 & 2. ^Peacock v. Tompkins, i Humph., 135. *Roby w Cossitt, 78 111., 638; Columbine v^ Chichester, 2 Phil., 27. Contra, Harding v. Parshail, 56 111., 219; Fisher v. Bowser, 41 Texas, 222. § 93- STATING CONTRACT. 121 alleged ; ' nor the manner in which the principal ratified the agreement.' § 93. Stating contract. — The material terms of the con- tract sought to be enforced should be alleged.' Where the written memorandum of a. contract under which the de- fendants obtained money from the complainants, to be in- vested in land for the benefit of the latter, is lost, a bill setting out the contract, and praying specific performance, or a return of the money, and also seeking a disclosure of the contents of the memorandum, presents a case for equi- table relief.' When the object of the bill is to charge par- ticular defendants, the complainant must show a case against them by proper averments. But when persons are made parties merely because they have or claim an interest in the property, it is enoitgh for the plaintiff to show his own rights, and allege the fact that others claim an interest. The allegation that they have or claim an interest is suffi- cient ground for relief against them, which in such case is nothing more than asking an adjudication of such rights as they may assert.' Several owners of distinct parcels of land, by one written instrument severally agreed to convey their respective lots to the same person. On a bill filed by the vendee for specific performance of the contract against one of such owners, it was held no objection that the agree- ment was set out as made between the complainant and the defendant.' W^hen the plaintiff alleges that the con- 'Hanchett v. McQueen, 32 Mich., 22, "^ Harding v. Parshall, supra. See Gilpin v. Watts, i Col., 479. An alle- gation in a bill for the specific performance of an agreement to convey land, that the defendant purchased the land as the plaintiff's agent, and with his money, thus holding it in trust for the plaintiff, is not objectionable. Gerrish v. Towne, 3 Gray, 82. ^Anthony v. Leftwitch, 3 Rand, Va., 238 ; Gaskins v. Peebles, 44 Texas, 390. In a suit for the specific performance of a parol agreement for the sale of land, the consideration for the agreement, the time and manner of its performance, and all of its essential terms, must be clearly and definitely alleged as well as proved. Jones v. Jones, 49 Texas, 683. '' Wiley V. Mullins, 22 Ark., 294. ^Seager v. Bums, 4 Minn., 141. New Barbadoes Toll Bridge v. Vreeland, 4 N. J. Eq., 1 57. 122 PLEADINGS. § 94. tract was in writing, he need not aver that it was signed.' But it has been held that merely alleging that there was a contract, would he tantamount to averring a verbal agree- ment ; and that where the contract is required to be in \yriting, unless from the rest of the pleadings a WTitten contract must necessarily be presumed, the bill will be bad on demurrer.' It was said, however, by an eminent judge, that " if it is stated generally that an agreement or con- tract was made, the court will presume it a legal contract, until the contrary appears ; and the defendant must either plead the fact that it was not in writing, or insist upon his defence in the answer." ' § 94. How land should be descidbed. — In a bill for the specific performance of a contract to convey, the land must be described wnth at least sufficient accuracy to enable the court to ascertain the property by ordering a survey.* Where a w^idow filed a bill against her husband's devisees and representatives for the specific performance of an ante- nuptial agreement to settle on her " a plantation and per- manent home for life," it was held that the bill must dis- tinctly set forth what land, where situate, the number of acres, etc." A bill which alleged that the defendant prom- ised to give a mortgage to secure notes of his due to the complainant w^as held too vague and indefinite, as there was no specification of the property to be mortgaged.' And where the grant was described by the length of the sides 1 Barkworth v. Young, 4 Drew, i ; Field v. Hutchinson, i Beav., 599 ; Rist v. Hobson, I Sim, & Stu., 543 ; i Danl. Ch. Pr., 4th Am. Ed., 365. -Barkworth v. Young, 4 Drew, i ; Whitechurch v. Bevis, 2 Bro. C. C, 559; Spurrier v. Fitzgerald, 6 Ves., 555 ; Logan v. Bond, 13 lb., 192 ; Piercy v. Adams, 22 Ga., 109 ; Carlisle v, Brennan, 67 Ind., 12. ^ Chancellor Walworth, in Cosine v. Graham, 2 Paige Ch., 177. See Wildbahn V. Bobidoux, 11 Mo., 659 ; Richards v. Richards, 9 Gray, 314 ; Cranston v. Smith, 6 R. I., 231 ; Farnham v. Clements, 51 Me., 426; Dudley v. Bachelder, 53 lb., 403 ; Hubbell v. Courtney, 5 S. C, 87. Specific performance of an agreement which differs materially from the one set out in the bill, will not be decreed. Harris v. Knickerbacker, 5 Wend., 638. ^ Gray v. Davis, 3 J. J. Marsh, 381 ; Allen v. Chambers, 4 Ired. Eq., 125. " Mallory v. Mallory, i Busb. N. C. Eq., 80. " Sanderson v. Stockdale, 1 1 Md., 563. §§ 95' 9^- TERFORMANCE MUST BE AVERRED. 123 and bearing trees, it was held insufficient to sustain a decree, as there was no evidence to show that the bearing trees were at the places alleged, and they constituted the con- trolling part of the description/ But a description of the land by a well-known name, in such a way as to distinguish the premises from other property, will be sufficient." Where the plaintiff, who was an administrator, described the land to be conveyed simply " as the lot of land containing four- teen acres, more or less, which lies on the northerly side of, and adjoining the estate now or formerly owned by J. S., in the town of A.," it was held no ground for demurrer to the bill.' Either party may plead and prove a mistake in the description of the land in a contract sought to be spe- cifically enforced." § 95. Stating consideration. — A bill filed to enforce specific performance of a written contract for the convey- ance of land, in which the entire consideration is not ex- pressed, need not set forth that part of the consideration which was omitted. In such case it is sufficient to entitle the plaintiff to maintain his suit, that he is willing and ready to pay the whole amount orally agreed upon by the parties, and has been guilty of no misconduct." Where a vendor seeks to enforce specific performance by a sale of the land and application of the proceeds to the satisfaction of the consideration, he should allege in his bill that the de- fendant promised or agreed to pay the consideration.' § 96, Performance must be averred. — The bill must show that the complainant has done everything necessary to en- title him to performance of the contract by the defendant, and that there is a demand on the other party uncomplied with.' The plaintiff should allege the facts constituting ' Bast V. Alford, 20 Texas, 226. ^ Goodenow v. Curtis, 18 Mich., 29S, ^ Baker v. Hathaway, 5 Allen, 103. ^ Abbott v. Dunivin, 34 Mo., 148. ' Park V. Johnson, 4 Allen, 259. " Capehart v. Hall, 6 West Va., 547. ^ Bates V.Wheeler, 2 111. (i Scam.), 54; Underhill v. Allen, 18 Ark., 466 ; Brown v. Hayes, 33 Ga. Supp., 136; McLeroy v. Tulane, 34 Ala., 78 ; Bell v. Thompson, lb., 633 ; Columbine v. Chichester, supra. 124 PLEADINGS. § 96. performance on his part, so that the court may judge whether he has done what he ought. Therefore, a general averment that he has " done all that he was bound by the contract to do," is not sufficient ;' nor an allegation that he has " offered, and has always been ready and willing to comply with his contract.'" So, where the plaintiff alleged repeated tender of payment, and that he always had been and still was ready to pay, the bill was held objectionable for want of particularity.' Where the vendor of land stipulated to deliver to the purchaser the patents thereof on their issue, it was held in a suit to enforce the contract of purchase that the vendor ought to aver and prove the issue of the patents not delivered." A bill for the specific performance of a contract to convey ten lots, which alleged a tender of eight whole lots, and of an equal undivided half of four other lots, was dismissed on demurrer, on the ground that it failed to show a performance on the part of the plaintiff.' Where a vendee brings a suit for the specific performance of a contract for the sale of land against the vendor, the bill must allege a tender of the purchase money when it became due, a readiness to pay it at any time since, and an offer to bring the same into court.' An allegation in the bill, that the defendant took possession under the contract, is equivalent to an averment that the plaintiff gave possession.' Where payment of the purchase money, possession, and the making of valuable and lasting im- provements by the purchaser, are relied on as grounds for the specific performance of a parol contract for the sale of land, the bill, in addition to these matters, must show that possession was taken under the contract with the knowl- edge and consent of the vendor, and that the purchaser is ready to pay the residue of the purchase money on obtain- ' Davis V. Harrison, 4 Litt., 261. " Hart v. McClellan, 41 Ala., 251. •^ Duff V. Fisher, 15 Cal., 375. '' Low v. Heck, 3 West Va., 680. * Roy V. Willink, 4 Sandf. Ch., 525. * Bass v. Gilliland, 5 Ala., 761. ' Harris v. Knickerbocker, 5 Wend., 638. § 97' AVERMENT OF DEMAND AND REFUSAL. T25 inga decree, or receiving a deed for the land.' A hill for specific performance which alleged that the purchase money- had all been paid, and also offered to pay whatever sum might be found due, was held sufficient, though the proof showed that part of the purchase money was still due." Where a complainant, in a suit to enforce the specific per- formance of a contract in which the acts to be done by the plaintiff and defendant are mutual and concurrent, alleges an offer to perform by the plaintiff, and a refusal by the defendant, it is sufficient.' If consent is necessary to enable the plaintiff to perform the contract, he need not allege that such consent was obtained." § 97. Averment of demand and refttsal. — Where a suit is brought to enforce an obligation to convey absolute on its face, and acknowledging the consideration, it is only necessary to aver a request, and a refusal to convey.' The purchaser should state in his bill, that he has requested the vendor to make title, or show some excuse for not doing so. An allegation that the vendor is insolvent is not suffi- cient to excuse the necessity of such request.* A complaint to compel the execution of a deed, alleged payment of the purchase money, and a conveyance to the defendants as ' Moore v. Higbee, 45 Ind., 487. Where the complainant sought to compel a conveyance on two grounds : ist, that the deceased, whose representatives were defendants, had purchased the real estate at a sheriffs sale, and had agreed with the plaintiff, at the time of the sale, to hold the land in trust for the plain- tiff; 2d, that the plaintiff had re-purchased the land from the deceased, and taken possession, agreeing to make improvements, pay taxes, and repay the purchase money, and had done acts in part performance sufficient to entitle him to a decree, it was held that although the allegation as to the trust was insuffi- cient, yet that the facts stated warranted a decree. Pearson v. East, 36 Ind., 27. See Hauser v. Roth, 37 Ind., 89. ^ Mix V. Beach, 46 111., 311. A bill for the specific performance of a contract to convey, which alleges a partial performance on the part of the plaintiff, need not formally allege a readiness to complete the performance. Hatcher v. Hatcher, i McMullan Ch., 311. ^ St. Paul Division V. Brown, 9 Minn., 157. Where the plaintiff neglects to allege that he has performed, or is willing and ready to perform, as such an omission is a mere defect in form, his bill may be amended. Chess's Appeal, 4 Pa. St., 52. * Smith V. Capron, 7 Hare. 185. ^ Fonnger v. Welch, 22 Texas, 417 ; Holman v. Criswell, 15 lb., 394. ' Carter v. Thompson, 41 Ala., 375. 126 PLEADINGS. §§ 98-IOO, security to them for a debt ; that the defendants were to re-convey to the plaintiff when the debt was paid ; that such payment was made, and a conveyance demanded. But the phiintiff failed to allege a refusal by the defendants to execute a deed upon demand, or at any time since ; and it was held that the omission was fatal.* § 98. Clia7'ging injury. — When damages are claimed, the particular injury must be alleged, and not merely that the plaintiff has sustained damage.' A bill to enforce the payment of a lost note must allege that the note has not been paid." ^ 99. Prayer for relief. — A bill for specific performance which contains no prayer for general relief, where the whole case shown by the bill does not justify the relief prayed for, should be dismissed, although the complainant may have been entitled to some other relief.' Where neither party asks for specific performance, it is error in the court to decree it."" § 100. When cross bill required. — In a suit for specific performance, the defendant must file a cross bill if he would have affirmative relief." Thus, upon a bill by the vendee to enforce specific performance of a contract of sale against the vendor's representatives, a balance having been found to be due the representatives, it was held that a decree could not be rendered for such sum on their answer, but that there must be a cross bill' Where, in a suit for the specific performance of a contract in regard to the sale of land, and to restrain the defendants from bringing ac- tions on notes given for the purchase money, the defence. ' Dodge V. Clark, 17 Cal., 586. - Chinock v. Marchioness of Ely, 2 H. & M., 220. ^ Mason v. Foster, 3 J. J. Marsh, 283. *■ Boyle V. Laird, 2 Wis., 431. A bill filed by the vendor praying for the specific performance of the contract of sale, or that all claim of the vendee be foreclosed, is not a bill to foreclose a mortgage. State of Conn. v. Sheridan, I Clark N. Y., 533. * Cantrell v. Rice, 6 J. J. Marsh, 338. " Hanna v. Ratikin,,43 111., 103. ' Bussey v. Gant, 10 Humph., 238. § lOO. WHEN CROSS BILL REQUIRED. 12/ which was estabhshed, was, in substance, that the defend- ants were not bound to complete until the notes were paid, it was held that no other judgment could be rendered than one dismissing the complaint ; and a judgment giving the defendants affirmative relief, was reversed.' But if the answer admits the agreement as alleged in the bill, the court may decree performance by both parties, without a cross bill." Where the purchaser files a bill for perform- ance after the time fixed in the contract, the vendor may, by answer, submit to perform, and file a cross bill, and compel the purchaser also to perform. But he cannot resist fulfilment, and after the property has depreciated in value, enforce specific performance against the purchaser.^ The only real difference between a bill and a cross bill is, that the first is filed by the plaintiff, and the second by the defendant. Both contain a statement of the facts, and each demands affirmative relief upon the facts stated. In the making up of the issues and the trial of questions of fact the court is governed by the same principles of law and rules of practice in the one case as in the other. When a defendant files a cross bill and seeks affirmative relief he becomes the plaintiff," and the plaintiff in the original action becomes the defendant in the cross bill.* > Wright V. Delafield, 25 N. Y., 266. ^ Dorsey v. Campbell, i Bland Ch., 356. ^ Tobey v. Foreman, 79 III., 489. A cross bill makes, with the original bill, but one suit, and, when the latter is dismissed, the dismissal carries with it the dismissal of the cross bill. Elderkin v. Fitch, 2 Carter, 90. As the cross bill is a matter of defence, it ought not to introduce anything not contained in the original suit. May v. Armstrong, 3 J. J. Marsh, 262 ; Daniel v. Morrison, 6 Dana, 186 ; Fletcher v. Wilson, i Sm. and Marsh Ch., 376 ; Galatian v. Er^vin, Hopk. Ch., 48; S. C. 8, Cowen, 361 ; Josey v. Rogers, 13 Ga., 478 ; Slason v. Wright, 14 Vt., 208; Rutland v. Paige. 24 lb., 181 ; Draper v. Gordon, 4 Sandf. Ch., 210. But a cross bill is not restricted to the issues of the original suit. Nelson v. Dunn, 15 Ala., 501. It may set up additional facts when they con- stitute part of the same defence, relative to the same subject matter. Underbill V. Van Cortlandt, 2 Johns. Ch., 339, 355. It is not a good objection to a cross bill that it does not set out a copy of the written obligation on which the claim is based, when the obligation is attached in full to the plaintiff's bill. Coe v. Lindley, 32 Iowa, 437. Under the system of pleading adopted by the codes, the equitable counter-claim may take the place of a cross bill or complaint. See McAbee v. Randall, 41 Cal, 136. * Ewing V. Patterson, 35 Ind., 326. 128 PLEADINGS. §^ lOI, I02. § loi. Amendment by plaintiff when contract different from that charged. — Where an answer to a bill for specific performance sets up a contract different from that charged in the bill, the plaintiff cannot have a decree for the per- formance of such contract without amending his bill so as to insist upon it.' An obligee in a bond to make title, filed a bill for specific performance of the contract and claimed to have the land conveyed according to certain boundaries, which he averred were intended by the parties. The defendant denied that such boundaries were meant, and set out others, which he alleged were the true ones. Held, that the plaintiff was not entitled to a decree corresponding with the defendant's allegations, for the reason that he had not averred his willingness to accept a deed according to the lines as set out by the defendant, and had not offered to release him from any further claim.* But where, in a suit for the specific performance of a written contract, the defendant in his answer submitted to a specific perform- ance of the real agreement, it was held that if the defendant established his case by evidence, he was entitled to specific performance of the agreement as proved, even against the claim of the plaintiff to have his bill dismissed.' § 1 02. Demurrer to bill objecting stattite of frauds. — The want of an agreement within the statute, when shown by the bill, may be objected by general demurrer,* or by a demurrer alleging the want of such an agreement ;' it be- ' Byrne v. Romaine, 2 Edw. Ch., 445. To a bill for specific performance, the defendant pleaded that the contract alleged by the plaintiffs did not contain the true terms of purchase, but he did not state what the true terms were. The defendant afterward produced a contract for purchase containing different terms from those alleged by the j)laintiffs. The plaintiffs amended their statement of claim, but continued to insist upon specific performance of the contract as stated by them. It was held that the plaintiffs asking at the trial to have specific performance with a variation, according to the terms of the agreement produced by the defendant, the suit would not be dismissed, but that judgment would be given for specific pertormance with the variation. Smith v. Wheat- croff, L. R. 9, Ch. D., 223. "^ Richardson v. Godwin, 6 Jones, Eq., 229. ' Bradford v. Union Bank of Tennessee, 13 How., 57. * Field v. Hutchinson, i Beav., 599. ' Wood V. Midgley, 5 De G. M. & G., 41 ; S. C. 2. Sm. & Gif., 115 ; Bark- worth v. Young, 4 Drew, i ; and see Howard v. Okeover, 3 Swanst., 421, n. § lOJ. SETTING UP STATUTE OF FRAUDS. I29 ing incumbent on the plaintiff to state the facts, if any, which take the case out of the statute. The statute of frauds differs in this respect from the statute of limitations, which must, in all cases, be pleaded.' § 103. Setting up statute of frauds by plea or answer. — If specific performance be sought of a parol contract, and the defendant, who desires to avoid such performance on the ground that the contract is within the statute of frauds, does not demur, he must raise the objection by plea or answer ; otherwise he will be deemed to have waived it.' Where, in a suit for the specific performance of a contract to convey real estate, the complaint showed that the agree- ment to convey was not in WTiting, and did not aver that possession of the land was given under the contract, it was held that a general denial did not raise the issue of the statute of frauds.' Where, however, a bill alleged a parol agreement and part performance, a plea averring that there was no agreement in writing, and an answer insisting that the alleged acts did not amount to part performance, was held sufficient.* But a plea in bar alone to such a bill would be multifarious and bad, for the reason that it would consist of tv/o distinct points, viz., a denial of any written agreement, and of the acts of part performance.' Although, when the answer denies or does not admit the agreement, the defendant is not called upon to plead the statute in * Ridgway V. Wharton, 3 DeG. M. & G., 691. Where a petition sets forth facts which would take the case out of the statute of limitations, the defendant cannot plead the statute unless he denies the averments in the petition, and the issues of fact thus presented must be tried. Wright v. Le Clair, 4 Greene, Iowa, 420. ^ Adams v. Patrick, 30 Vt., 576 ; Hull v. Peer, 27 111., 312 ; Meach v. Perry, i D. Chip Vt., 182 ; Deyer v. Martin, 4 Scam., 146 ; HoUingshead v. McKenzie, 8 Ga., 457. A decree for the specific performance by infant heirs of a parol con- tract of their ancestor was reversed on appeal, on the ground that the neglect of the guardian to plead the statute of frauds in defence should not prejudice the rights of the infants. Grant v. Craigmiles, i Bibb., 203. ' Livesey v. Livesey, 30 Ind., 398. ^ Whitechurch v. Bevis, 2 Bro. C. C, 559 ; S. C. 2, Dick, 664 ; and see Hosier V. Read, 9 Mod., 86 ; Moore v. Edwards, 4 Yes., 23 ; Bowers v. Cator, lb., 91 ; Evans v. Harris, 2 V. & B., 361. ^ Whitebread v. Brockhurst, i Bro. C. C, 404 ; and see Child v. Comber, 3 Swanst., 423, n. 130 PLEADINGS, § 103. order to avail himself of it as a defence, as the burden of proof is then on the plaintiff to show a valid agreement capable of being enforced ; yet, if the answer admit an agreement, even though it be but a parol one, the defendant must plead the statute in order to avail himself of it.' In an action for the specific performance of a parol contract to convey to the mortgagor premises sold under a decree of foreclosure, the defendant denied the agreement set out in the complaint, and set up an agreement to re-convey upon different terms and conditions. Held, that the contract so set up in the answer could not be held sufficient to take the case out of the statute of frauds, because it did not corre- spond with that alleged in the complaint.' It is well set- tled that the defendant is entitled to the full benefit of the statute, notwithstanding his admission that there was an agreement ;' but if he desires to claim the benefit of the statute, he must do so distinctly at the same time that he admits the agreement.* If this be neglected, it cannot be done at the hearing.' Where the defendant stated in his answer that no formal note of the agreement was made, and that no binding agreement ever existed, without expressly claiming the benefit of the statute, it was held that he could 1 Ridgway v. Wharton, 3 De G. M. & G., 677 ; S. C. 6, House of Lords, 238 ; Croyston v. Banes, Prec. Ch., 208 ; Symondson v. Tweed, lb., 374 ; Irildbahn V. Robidoux, 11 Mo., 659; Walker v. Hill, 21 N. J. Eq., 191 ; Albert v. Winn, 5 Md., 66 ; Talbot v. Bowen, i A. K. Marsh, 436 ; Small v. Owings, i Md. Ch., 363 ; Artz V. Grove, i Md., 456 ; Newton v. Svvasey, 8 N. H., 9 ; Tilton v. Til- ton, 9 N. H., 385 ; Dean v. Dean, 9 N. J. Eq., 425 ; Smith v. Brailsford, i De- saus., Eq., 350 ; Hutchinson v. Hutchinson, 4 lb., ']'] . The complainant in a bill for the specific performance of a parol contract to convey land, and in the al- ternative for compensation for improvements, is not entitled to the relief sought, where the answer denies the terms of the contract as set out in the bill, alleges a different contract, and also insists on the statute of frauds. Sain v. Dulin, 6 Jones, Eq., 195. •2 Morrell v. Cooper, 65 Barb., 51, ' Cooth V. Jackson, 6 Ves., 12 ; Moore v. Edwards, 4 lb., 23 ; Rowe v. Teed, 15 lb., 375 ; Blagden v. Bradbear, 2 lb., 466 ; Whitbread, ex parte, 19 lb., 212, An answer to a bill for the specific performance of a contract of sale, admitting that "the defendant negotiated to and with the plaintiff for a sale of the lot for seven hundred dollars, but denying that the defendant did sell the same," was held not to admit the contract. Auter v. Miller, 18 Iowa, 405. ■* Spurrier v. Fitzgerald, 6 Ves., 548 ; Beatson v. Nicholson, 6 Jur., 621. ' Baskett v. Cafe, 4 De G. & Sm., 388. §§ I04, 105. AVERMENT IN ANSWER OF NEW MATTER. I3I not avail himself of it/ The defendant need not claim the benefit in the very words of the statute, "but he must claim it in words equivalent, so as to call the attention of the plaintiff to the circumstance that the benefit of the statute is claimed.'"' § 104. Objecting that wife did not tuiite in contract. — Where, in a suit for the specific performance of a contract to convey land, the defendant wishes to avail himself of the defence that the land is his homestead, that he is a married man, and that his wife did not join in the contract, those facts must be set up in the pleading, and cannot be proved under a mere denial of the agreement.' The defence to a bill by the vendee for specific performance that the w^ife re- fuses to release her dower, will not avail if the vendee offers to waive the release.* § 105. Averment in answer of new matter. — If new mat- ter be set up, not responsive to the allegations of the bill, or not supported by the proof, it is no ground for denying the relief prayed for ; as where the vendor admitted his failure to convey on demand, and claimed the balance of the purchase money agreed on, and also the discharge of an old debt of the vendee's father, which was alleged to be a lien on the land, before he was willing to execute a deed.' In a suit by a vendee to compel specific performance of an agreement to sell and convey land, and take a mortgage thereon to secure a part of the purchase money, it is no de- fence that the use of the land contemplated by the vendee would destroy its value, within the time allowed by the mortgage, and that the plaintiff was so heavily in debt that * Skinner v. M'Douall, 2 De G. & Sm., 265. "^ Wigram, Vice-Chancellor, in Beatson v. Nicholson, supra. An objection that the contract is void for uncertainty may be taken by answer instead of de- murrer. Pearce v. Watts, L. R. 20, Eq. 492. 3 Brown v. Eaton, 21 Minn., 409. * Corson v. Muh'any, 49 Pa. St., 88. ^ Smoot V. Rea, 19 Md., 398. A bill was filed to enforce specific performance of a contract to convey land to two. The answer alleged a tender to one, and a demand of payment of the consideration note, which was refused. Held that such answer was sufficient, the other plaintiff being out of the country. Lane v. Ready, 12 Ind., 475. 132 PLEADINGS. § 105. the mortgage would be the only security for the purchase money/ And where a defendant, in his answer, set up an outstanding right to the premises in a third party, who acquiesced in the plaintiff's title, it was held not a defence to the bill.' ■ Corson v. Mulrany, supra. ■ Laverty v. Moore, 33 N. Y., 658. In a suit to enforce the specific perform- ance of an agreement for tlie exchange of lands, the plaintiff being unable to give the title mentioned in the agreement, it was held that the bill might be dis- missed, although the objection was not stated in the answer, or taken until the hearing before the referee. Park v. Johnson, 7 Allen, 378. CHAPTER III. INJUNCTION. io6. Preservation of rights pending suit. 107. Where a party is proceeding to enforce a judgment contrary to agree- ment. 108. Restraining action at law in relation to subject of suit. 109. Where party is proceeding to act contrary to agreement, no. To compel party to fulfil agreement. 111. In case of breach of articles of partnership. 112. Where affirmative covenant involves a negative. 113. In case of affirmative and negative stipulations. 114. Where the agreement is not to do a certain thing. 115. In case of violation of covenant as to the use of land sold. 116. Where party agrees not to apply to the Legislature. 117. In case of contracts for personal services. § 106. To restrain threatened injury ttntil after hear- ing. — An injunction may be a mode of specifically perform- ing the contract ; or it may be incident and ancillary to the performance. It will only be granted to the extent that the plaintiff establishes a case for protection, and will not be extended to restrain breaches in relation to which a ne- cessity for relief is not shown.' But it is sufficient that the plaintiff make out ?i prima facie case, though his title to the relief prayed for ultimately fail.'' Where the legal title to the subject matter of the contract remains in one of the parties, while an equitable right passes to the other, the court, unless the party having the equitable right has so conducted as to deprive himself of his equity, will, as a rule, restrain the party in possession of the legal title from pro- ceeding upon it at law to disturb the other party in the en- joyment of the thing bargained for, at least until the hear- ing.' " The court will, in many cases, interfere, and preserve ' Earl of Mexborough v. Bower, 7 Beav., 127. * Powell v. Lloyd, i Y. and J., 427. ^ Shannon v. Bradstreet, i Sch. and Lef., 52; Green v. Green, 2 Men, 86. Where the evidence of the title of a party has been lost, through accident, the other party will be restrained by an injunction from setting up his title. Butch v. Lash, 4 Iowa, 215. 134 INJUNCTION. § 1 06. the property in statu quo during the pendency of a suit in which the rights in relation to it are to be decided ; and that without expressing, and often without the means of forming, an opinion as to such rights."' And the injunc- tion will be continued, although it be not clear that the plaintiff will succeed at the hearing, provided there is ground for supposing that relief may be given." Where a lessee filed a bill against his lessor, for the specific performance of an agreement to grant a lease, the lessor was restrained from bringing an action of ejectment during the suit.' But if, in a suit by a tenant for specific performance, it is doubtful whether a decree can be rendered in his favor, the court will either decline to enjoin the landlord from pursuing his legal right ; or, if it grant an injunction, will impose such terms on the tenant as will secure to the landlord, in case it appears at the hearing that the tenant is not entitled to specific performance, the same benefit he would have had if the injunction had not been granted.^ An injunction was refused in behalf of a tenant, on the ground that he was insolvent, and had injured the premises.' But a landlord was restrained from bringing ejectment, notwithstanding the person with whom he contracted was banki-upt, and had ' Lord Cottenham in Gt. Western R.R. Co. v. Birmingham & Oxford June. R.R. Co., 2 Phil., 605. - Hudson V. Bartram, 3 Mad., 440. ' Boardman v. Mostyn, 6 Ves., 467. Where a lessee, in consequence of bad weather, was unable to complete repairs within the time allotted, and the lessor did not notify him that the repairs should be expedited, an action of ejectment was restrained by injunction. Bargent v. Thompson, 4 Giff., 475. See Bamford V. Creasy, 3 lb., 675. ■* Attwood V. Barham, 2 Russ., 186; Sanxter v. Foster, Cr. & Ph., 302 ; Pyke V. Northwood, i Beav., 152; Paris Chocolate Co. v. Crystal Palace Co., 3 Sm. & G., 120. ° Buckland v. Hall, 8 Ves., 92. Where the owner of land, taken by a railroad company, brought a suit against the company to enforce his lien for the unpaid purchase money, it was held that the court would not grant an injunction or a receiver against the company before judgment was obtained, even though the company admitted their liability. Latimer v. Aylesbury & Buckingham R.R. Co., L. R. 9, Ch. D. 385. In a suit by a vendor against a railway company to enforce his lien for the purchase money, interest, and costs, and to restrain the company from running trains across the land, the court made an order for a sale of the land, but declined to grant an injunction. Licett v. Stafford & Uttoxeter R.R. Co., 13 L. R., Eq. 261. § I06. TO RESTRAIN THREATENED INJURY. 1 35 assigned the benefit of the agreement to another ; the as- signee being solvent, and in a condition to enter into the usual covenants, and there being nothing to show that the contract was entered into upon considerations personal to the assignor/ An injunction will be granted to restrain a vendor from conveying the legal title to real estate pending a suit for the specific performance of a contract for its sale, which, if permitted, might compel the vendee to make some other person a party to the suit.' But a vendor will not be entitled to a bill in equity to prevent his purchaser from buying other land from a third person pending the transaction, on the ground that by making such second purchase, it may be impossible for him to complete the first.' A purchaser who had obtained possession was en- joined from cutting timber on the land." And third persons will sometimes be restrained from proceeding to do what would prejudice the plaintiff in relation to the property." An improper disposition of trust assets may be restrained in behalf of the cestui que trust; or a threatened breach of trust prevented on the application of a co-trustee ;° or an ' Crosbie v. Tooke, i M, & K., 431. 2 Echliff V. Baldwin, 16 Ves., 267 ; Curtis v. Marquis of Buckingham, 3 V. & B., 168. " If the vaUdity of the contract is open to doubt, the question whether the vendor shall be permitted to transfer the legal estate to a third person pending a suit for specitic performance, becomes a question of comparative convenience or inconvenience. If, on the one hand, greater inconvenience would arise to the plaintiff from withholding the injunction, than to the defendant from granting it, an injunction will be granted." Kerr on Injunc, 336. An injunction will be granted with caution. In one case the court refused to restrain a vendor from leasing the property, and from selling and conveying the same, except to the plaintiff, on the ground that a purchaser, pending the suit, would take subject to the rights of the plaintiff. Turner v. Wright, 4 Beav., 40. In another case, Lord Eldon, though he granted an injunction restraining the vendors of certain copyhold property from surrendering it to any other persons than the plaintiffs, who were in possession and had paid part of the purchase money, said : "I wish it understood, as my opinion, that, in general, on a bill for the specific perform- ance of an agreement to sell, the plaintiff is not entitled to restrain the owner from dealing with the property. A different doctrine would operate to control the rights of ownership, although the agreement was such as could not be per- formed." Spiller V. Spiller, 3 Swanst., 556. ^ Syers v. Brighton Brewery Co., 13 W. R., 220. * Crockford v. Alexander, 15 Ves., 138. ^ Nicholson v. Knapp, 9 Sim., 326. * Scott V. Becher, 4 Price, 346 ; Kerr on Injunc, 172, 173. 136 INJUNCTION. § 107. injunction be issued ao;ainst executors, when they are mis- managing the assets of the estate. § 107. To prevent party from eiiforcinf^ a jitdgmciit con- trary to agreement. — The enforcement of a judgment, en- tered contrary to an express agreement between the parties, may be restrained by injunction.' Upon a bill praying that the defendant might be restrained from enforcing a judg- ment at law obtained in violation of an agreement that the case should be discontinued without costs, it was held that the fact that the defendant had not threatened to enforce the judgment, was no reason for refusing the relief asked for ; since it was indispensable to the plaintiff's security, that the judgment against him should be discharged, or put in such a condition that it could never subject him to the danger of further litigation, and that the refusal of the de- fendant to discharge the judgment, was tantamount to a threat to enforce it ; ' and where a judgment creditor was proceeding to collect the whole amount of the judgment, contrary to an agreement between the parties that certain payments should be credited thereon, a decree was rendered enjoining so much of the judgment as was equivalent to the amount agreed to be credited.' So, where several judg- ment creditors, who have levied on real estate, enter into an agreement that the land shall be sold on one of the judg- ments, that "upon such a sale, a clear title shall pass to the purchaser, and that the priorities of the liens under the sev- eral judgments and levies shall be tried in such mode as may be thought advisable, and the proceeds of sale appro- priated accordingly," a violation of the agreement will be restrained by injunction.* ' Kent V. Ricards, 3 Md. Ch., 392. A court of equity will not restrain the exe- cution of a judgment, unless the complainant had a good defence at law, and was prevented from availing himself of it by mistake, surprise, or fraud, without any fault or negligence of his. Hill v. Reifsnider, 46 Md., 555. ^Chambers v. Robbins, 28 Conn., 552. ^ Newman v. Meek, Sm. and Marsh Ch., 331 ; and see Dickenson v. McDer- mott, 13 Texas, 248. ^ Reily v. Miami Exporting Co., 5 Ohio, 333. §§ I08, 109. ACT IN VIOLATION OF AGREEMENT. 1 37 § 108. Enjoining action at law in relation to same mat- ter. — Upon the principle that equity will not permit an action at law to be maintained in respect to the same sub- ject matter, the court will, in general, after a bill for specific performance has been filed, restrain an action for damages for delay in completion, or an action for the deposit upon its being paid into court ; ' and an injunction to restrain an action at law for the deposit, may be obtained in behalf of, or against, the agent of a party. An injunction was granted against the purchaser, restraining him from proceeding in an action against the auctioneer, who was not a party ; though, in a previous case, a motion for an injunction against the purchaser, forbidding him to proceed at law to recover the deposit from the seller's attorney who was not a party, was denied with costs.' When the vendor retains both the de- posit and the land, through the fault of the purchaser, he will not be compelled to pay the deposit into court.' § 109. To prevent the doing of some act in violation of agreement. — An injunction frequently takes the form of a decree for specific performance by restraining a party from doing a certain act, which, by the terms of the contract, either express or implied, he is required not to do.* Where ' Levy V. Lindo, 3 Men, 82 ; Johnson v. Smart, 2 Giff., 156; Kell v. Nokes, 32 L. J. Ch., 785 ; Duke of Beaufort v. Glynn, 3 Sm. and G., 213 : Annesley v. Muggridge, i Mad., 593; Fordyce v. Ford, 4 Bro. C. C., 494. If a party, pend- ing a suit to establish his legal title, obtains possession of the property by unfair means, equity will not stay proceedings at law against him for the recovery of possession. Grafton v. , i R. and M., 336. Although the dismissal of the vendor's bill for specific performance, will not, as a rule, prevent his bringing an action for breach of the contract, yet it is cus- tomary to state in the decree, that the dismissal is without prejudice to the legal right. Macnamara v. Arthur, 2 B. and B., 349. But an action at law will be enjoined where the bill has been dismissed for want of title, lb. ; or where the doing of the thing for which the action at law is brought, has been waived. Reynolds v. Nelson, 6 Mad., 290. If specific performance be decreed, proceed- ings at law will be restrained. Green v. Low, 22 Beav., 625 ; Frank v. Basnett, 2 M. and K., 618 ; Prothero v. Phelps, 7 D. M. and G., 734. ^ Sug. V. and P., 229, n. = Wynne v. Griffith, i Sim. and Stu., 147. See Lloyd v. CoUett, 4 Bro. C. C, 469, 71 ; Stewart v. Alliston, i Mer., 28 ; Tanner v. Smith, 4 Jur., 310 ; Pincke v. Curteis, 4 Bro. C. C., 330 ; Morley v. Cook, 2 Hare, 106. * Barret v. Blagrave, 5 Ves., 555. As a rule, the violation of a contract which cannot be specifically enforced will not be restrained by injunction. Ac- cordingly, where the lessee of a coal mine contracted to raise and deli\er to the 138 INJUNCTION. § 109. a contract was entered into between two companies where- by one was to construct a railroad, and the other to operate it and to carry over the Hne certain traffic, and the latter company was violating the agreement by carrying the traffic over other lines, a demurrer to a bill filed by the first-named company to restrain the other from so doing, was overruled.* If a stipulation is violated, the plaintiff may be restrained whether damage will or will not otherwise be likely to result. "If the construction of the instrument is clear, then it is not a question of damage; but the mere circum- stance of the breach of covenant affords sufficient ground for the court to interfere by injunction."* But although the simple fact that there has been a breach of covenant is sufficient, and it will be no answer for the defendant to say that the act complained of will inflict no injury on the plaintiff, or will be a benefit to him ; yet if damages will compensate either the benefit derived or the loss suffered, equity will not interfere. So, where either party may suffer by the granting or withholding of an injunction, the plaintiflFs all the coal in the mine at a fixed price for five years, and, coal having risen in value, the defendant was selling coal to other parties, it was held on de- murrer that the court had no jurisdiction to grant an injunction to restrain a breach of the contract. Fothergill v. Rowland, L. R. 17, Eq. 132. But if the case is one in which the granting of an injunction will do substantial justice be- tween the parties by obliging the defendant either to carry out his contract or lose all benefit of the breach, and the remedy at law is inadequate, and there is no reason of policy against it, the court will interfere to restrain conduct which is contrary to the contract, although it may be unable to enforce specific per- formance of it. " It was formerly thought that an injunction would not be granted to restrain the breach of any contract, unless the contract was of such a character that the court could fully enforce the performance of it on both sides. Upon this ground there were many decisions refusing to interfere with contracts for personal services, however flagrant might be the breach of them. .... It is now firmly established that the court will often interfere by injunc- tion when it cannot decree specific performance The case of Lumley v. Wagner, i De G. M. & G., has been followed by numerous cases concerning ■ actors, authors, and publishers. Webster v. Dillon, 5 W. R., 867 ; Stiff v. Cas- sell, 5 Jur. N. S., 348. The case of Fechter v. Montgomery, 33 Beav., 22, sometimes cited as opposed to these decisions, is not so at ail. The decision there was that the actor had the right to renounce his engagement because the manager had not fulfilled his part of the contract. See also Slee v. Bradford, 4 Giff., 262." Lowell, J., Singer Co. v. Union Co., i Holmes C. C, 253. ' Wolverhampton & Walsall R.R. Co. v. London & Northwestern R.R. Co., L. R. 16, Eq. 433. ■•' Vice-Chancellor Wood in Tipping v. Eckersley, 2 K. & J., 270. Approv^ed in Lord Manners v. Johnson, 44 L. J. C, 404. § no. TO COMPEL FULFILMENT OF STIPULATION. I39 rule in equity requires the court to balance the incon- veniences likely to be sustained by the respective parties by means of the action of the court, and to grant or withhold the injunction according to sound discretion.* The viola- tion of a contract may be restrained by injunction though one party has the sole right to terminate it, provided their stipulation is not one that makes the whole contract in- equitable.'' Where the plaintiff might discontinue his busi- ness whenever he chose, and thereby deprive the defend- ant of employment, the latter was nevertheless restrained from working for another person.^ In case of an agree- ment to sell and deliver goods, the seller will not in gen- eral be restrained frofn making a different disposition of the goods, for the reason that the breach of the contract can be compensated by the market value of the goods.* Where the acts complained of are repeated, and it cannot be ascertained in each case whether there has been a breach without an action at law, an injunction will not be granted.* When there is a dispute relative to the rights of the parties under the contract involving its terms and obligations, an injunction ought not to be granted until the rights of the parties are ascertained and settled. If the proof be so equally balanced as to leave the precise terms of the con- tract in doubt, this will be sufficient cause for a denial of the application.^ § 1 10. To compel fidjilment of stipulation. — The jurisdic- tion of equity to interfere by way of injunction is not con- fined to cases in which specific performance can be decreed, but is exercised whenever it can operate to bind men's con- sciences to a true and literal fulfilment of their agreement. If the injury done to the plaintiff cannot be estimated, and ' Grey v. Ohio & Pa. R.R. Co., i Grant, 412 ; Richard's Appeal, 57 Pa. St., 105. " Singer Co. v. Union Co., i Holmes C. C, 253. = Rolte V. Rolfe, 15 Sim., 88. * Fothergill \^ Rowland, L. R. 17, Eq. 132. See ante, §§ 16, 17. ' Collins V. Plumb, 16 Yes., 454. " Brown's Appeal, 62 Pa. St., 17. 140 INJUNCTION. § I 10. sufficiently compensated in money, the court has power to grant what is called a mandatory injunction ; that is, an order compelling the defendant to restore things to the con- dition which they were in, previous to the wrong, and, in that way, indirectly enforce an agreement of which it could not directly decree specific performance." Where, for in- stance, the lessor of mills covenanted to supply water to them from certain canals and reservoirs, and the lessee filed a bill to compel the lessor to repair the canals so that the lessee could enjoy the water, Lord Eldon, doubting whether he could decree repairs, accomplished the same result by enjoining the lessor from hindering the plaintiff's enjoy- ment of his rights by keeping the canals out of repair.' 1 Isenberg v. East India House Co., 33 L. J. Ch., 392 ; Stanley v. Earl of Shrewsbury, L. R. 19, Eq. 619. - Lane v. Newdigate, 10 Ves., 192. This is said to have been the first case in which the application of the negative fortn of injunction to insure the perform- ance of a positive agreement, was distinctly avowed by the court. Batten on Specif. Perform., 140. The bill prayed that the defendant might be decreed to restore a cut for carr^'ing waste water, and to restore a stop-gate, and the banks of a canal to their former height; and also to repair such stop-gates, bridges, canals, and towing paths, as were made previously to the granting of the lease. Lord Eldon, after expressing a doubt whether it was according to the practice of the court to order repairs, said : " As to restoring the stop-gate, the same difficulty occurs. The question is, whether the court can specifically order that to be re- stored. I think 1 can direct in terms that which will have that effect. The in- junction I shall order, will create the necessity of restoring the stop-gate ; and attention will be had to the manner he is to use these locks, and he will find it difficult, I apprehend, to avoid completely repairing these works." The order restrained the defendant from hindering the plaintiff from using the canal con- trary to the covenant, by continuing to keep the said canal, or the banks, gates, locks, or works of the same, respectively, out of good repair, or by continuing the removal of the stop-gate. The practice of granting mandatory injunctions was disapproved by Lord Brougham, as being a circuitous way of obtaining the object sought. In Rankin V. Huskisson, 4 Sim., 18, after referring to the cases, he said : " This brings me to Lane v. Newdigate, which may be said to go to the very uttermost verge of all the former cases, and indirectly to order something to be done, by restraining the party from continuing to keep certain works out of repair. That case appears to have been ex parte, and not at all argued." And in a subsequent case, he said : " I shall pursue the course I have always taken, of not extending the power which, in cases of a peculiar nature, this court has sometimes exercised, of ordering a thing to be done, under the form of restraining parties from preventing it." Milligan v. Mitchell, i M. & K., 452. In a suit against a railroad company, the bill prayed that the defendants might be restrained from stopping up a road which they had already stopped up. Sir L. Shadwell, Vice-Chancellor, in overruling a demurrer, said : " The power of the court to grant that species of injunction, which Lord Eldon granted, namely, restraining a party from allowing a thing to continue, and which has the effect of making him take some active measures, has been since recognized and acted §111. VIOLATION OF ARTICLES OF PARTNERSHIP. I4I And the same judge, in another case, enforced an agree- ment for a right of way by an injunction restraining the removal of the materials and the destruction of the way.' § III. In case of violation of ai' tides of pa7't7tership. — A court of equity will restrain by injunction a member of a firm from a breach of the partnership articles, or from excluding the other partner from the business of the con- cern, or so conducting that the partnership cannot go on with advantage, and if necessary a. receiver will be appoint- ed. And the same thing will be done under similar circum- stances with regard to public companies.'' Where a part- nership had been formed for a specified time which had not expired, a partner, who insisted on a dissolution and formed another partnership, was restrained from carrying on busi- ness with any other persons until the expiration of the term ; and his new partners were restrained from carrying on business with him, or otherwise, in the name of the old firm, and from receiving or opening letters addressed to it, and from interfering with its property. The partner w^ho had left, was also restrained from publishing or circulating any notice of the dissolution of the old firm before the ex- piration of the time for which it had been formed." So, one of the proprietors of a morning new^spaper obtained on ; and I don't see why, if that species of negative injunction has been adopted, it should not be adopted here, so as to prevent the parties from continuing the excavation in its present state, and from making the excavation greater. The injunction asked for, so far as it restrains the defendants from widening the exca- vation, is quite the common sort ; but so far as it seeks to prevent its continu- ance, it is of a negative kind ; but it has been adopted by Lord Eldon." Spencer V. London & Birmingham R.R, Co., 8 Sim., 193. It was said by the court in one case, " that injunctions, in substance manda- tory, though in fact merely prohibitory, have been, and may be granted by the court, is clear. This branch of its jurisdiction may be one not fit to be exer- cised without particular caution ; but certainly it is one fit and necessar)% under certain circumstances, to be exercised. Under what circumstances it should be exercised, must be a matter for judicial discretion in each case." Bruce v. C. in Gt. North of Eng. R.R. v. Clarence R.R., i Coll., 522. In this country, the courts grant mandatory injunctions with great reluctance. Washington University v. Green, i Md. Ch., G7 ; Audenreid v. Phila. & Read- ing R.R. Co., 68 Pa. St., 370. ' Newmarch v. Brandling, 3 Swanst., 99. Teatherstone v. Cooke, L. R. 16, Eq. 298. ' England v. Curling, 8 Beav., 1 29. 142 INJUNCTION. § 112. an injunction against his co-partners, who were also pro- prietors of another newspaper in which he was not inter- ested, restraining them from pubHshing in the latter, information obtained at the expense of the former, until after it had been published in the former.' And one of the proprietors of a theatre was restrained from violating the partnership articles, by writing plays for other theatres." § 1 1 2. Where contract involves a negative. — When an affirmative covenant also involves a negative, equity will restrain the doing of acts inconsistent with the agreement. A person who, having covenanted to leave sufficient bar- riers against adjoining collieries, had not done so, was en- joined from permitting the communications to remain open/ One who had covenanted to preserve trees from waste and damage, was restrained from cutting them down, or injuring them.* So, lessees who have covenanted to cultivate land in a husbandlike manner, or according to the custom of the country, have been restrained from doing the contrary.' And w^here an actor contracted to perform at a certain theatre, he was restrained from performing elsewhere on the nights he had engaged to perform at the plaintiff's theatre, although he did not agree not to perform at any other place.* So, a lessee who has covenanted to deliver up the premises at the end of the term in good re- pair, may be restrained during the term from pulling down 'Glassington v. Thwaites, i Sim. & Stu., 124. '^Morris v. Coleman, 18 Ves., 437. ^Earl of Mexborough v. Bovver, 7 Beav., 127. ■• Lord Bathurst v. Burden, 2 Bro. C. C, 64. ^Drur>' V. Molins, 6 Ves., 328; Pratt v. Brett, 2 Mad., 6r>; Kimpton v. Eve, 2 V. & B., 349; Walton v. Johnson, 15 Sim., 352 ; Webb v. Plummer, 2 B. & Aid., 746 ; Rogers v. Price, 13 Jur., 820, "Webster v. Dillon, 3 Jur. N. S., 432. Stt post, § 117. Where a husband and wife entered into an agreement with the manager of a theatre, that the wife should act therein for a specified time, for a certain salary, it was held that the wife would not be enjoined from performing at another theatre during the time ; nor the husband from allowing her to change her residence ; nor another mana- ger from employing her within the time. Burton v. Marshall, 4 Gill, 487. The court in this case remarked that the agreement contained no negative stipu- lation. §113. CONTRACT BOTH AFFIRMATIVE AND NEGATIVE. 1 43 the house, and carrying away the materials.' An injunc- tion was granted against a railroad company, restraining it from removing from the cars placards and advertisements, and from the stations the book-stalls of the plaintiff, in breach of a covenant.'' And where a member of a partner- ship carried off a book of the firm, in violation of the deed of partnership, he was made to perform his covenant by means of an injunction.' § 1 13. Where the contract is both affirmative and nega- tive. — When an affirmative agreement is such that it can- not be specifically enforced, and the effect of an injunction would be to decree specific performance, the court will not import a negative covenant into the agreement, but will leave the plaintiff to his remedy at law\ Thus, where the plaintiff is granted an office or situation of trust and confi- dence, the defendant will not be restrained from employing another person in the plaintiff's place.* So where there was a contract for exclusive service during seven years, and for a partnership at the expiration of that time on such terrns as should be mutually agreed on, as the court could not enforce the whole agreement, it refused to restrain the violation of the covenant for exclusive service.' And where a contract was entered into between A. and B., that the former should furnish the latter drawings for maps, which B. should have the exclusive right to sell, as the court could not compel A. to furnish the drawings, it re- fused to restrain B. from selling the maps." If, however, ' See Ward v. Duke of Buckingham, cited, 10 Ves., 161. 2 Holmes v. Eastern Counties R.R. Co., 3 K. & J., 675. ^ Taylor v. Davis, 3 Beav., 388, tt. * Pollard V. Clayton, i K. & J., 462 ; Peto v. Brighton, etc., R.R. Co., i H. & M., 468 ; De Mattos v. Gibson, 4 DeG. & J., 299 ; Newberry v. James, 2 Mer., 446; Hamilton v. Dunsford, 6 Ir. Ch., 412. A contract of charter party is an exception to the rule that a negative will not be imported into an affirmative agreement unless the agreement is such that a decree for specific performance can be rendered. Kerr on Injunc, 526. ^ Kimberley v. Jennings, 6 Sim., 340. ^Baldwin v. Soc. for Diffusing Useful Knowledge, 9 Sim., 393; Clarke v. Price, 2 J, Wils., 157. 144 • INJUNCTION. § TI4- the agreement consists of affirmative and negative stipula- tions, the former of which are incapable of being specifi- cally enforced, a violation of the latter, if they constitute a distinct and substantive part of the agreement, will be restrained by injunction.' But not, if the affirmative and negative stipulations cannot be separated. Thus, where A. had given B. a sum of money, and B. had covenanted that he would buy all the acids he wanted from the manufactory of A., who covenanted that he would supply the acids, and B. also covenanted that he would buy his acids from no other person, Lord Lyndhurst refused to prohibit B. from obtaining acids from any other quarter, both because the covenants were correlative, and because he could not com- pel A. to supply B. with acids ; and if therefore he had re- strained B. from taking acids from any other quarter, he might have ruined him in the event of A. breaking his affirmative covenant to supply the acids." § 114. Restraining party from violatuig negative stipu- lation. — When a person enters into an agreement not to do a certain thing, the contract may be enforced by an injunc- tion restraining the act. Thus, where the plaintiffs, who lived near a church, agreed with the parson, church-war- dens, overseers, and other inhabitants of the parish that the former should erect a new cupola, clock, and bell to the church, and that the bell, which had been rung every day at five o'clock in the morning, thereby greatly disturbing the plaintiffs, should not be rung during the lives of the plaintiffs or the survivor of them, and the plaintiffs having fulfilled on their part, and the bell afterward again rung, the parish authorities were restrained from violating ■ Holmes v. Eastern Counties R.R. Co., 3 K. & J., 675 ; Dietrichsen v. Cab- bum, 2 Phil, 52 ; Gt. Northern R.R. Co. v. Manchester, Sheffield & Lincoln- shire R.R. Co., 5 De G. & Sm., 138; Whittaker v. Howe, 3 Beav., 383, 395. -'Hills V. CroU, 2 Phil., 60; Kerr on Injunc, 529. See post, §117. Where> however, a partner agreed to exert himself for the benefit of the firm and not carry on the same kind of business except as a partner, it was held that the court might, if the partnership were subsisting, grant an injunction against the breach of the latter stipulation, though it had no power to enforce the former. Morris v. Coleman, 18 Ves., 437 ; S. C, 6 Sim., 335. §115. TO PREVENT BREACH OF AGREEMENT. I45 their agreement.' The violation of covenants in separation deeds has been restrained, as : that the husband will not molest his wife ; "" or that he will not take any legal pro- ceedings for the restitution of conjugal rights ; ' or that the wife will not endeavor to compel her husband to allow her "any further or greater support, maintenance, or alimony" than a certain annuity." Where a creditor enters into an agreement with his principal debtor for forbearance to sue, and the creditor, notwithstanding, obtains a judgment at law against the sureties before they have notice of the con- tract of indulgence, equity, on the application of the sure- ties, will perpetually enjoin the judgment.^ Where a ven- dor of land covenants with the vendee that he will not bring a suit on the bond given for the purchase money until the quantity of land sold is ascertained, a violation of the agree- ment by the vendor will be restrained by injunction.' W^here the maker of a medicine entered into a contract w^ith a person that in consideration the latter would adver- tise -and sell the medicine, the former would not furnish it to anybody else for sale under a specified price, and such person fulfilled the contract on his part, it was held that the maker of the medicine would be enjoined from violating the agreement.' So, an author who, in selling a work, covenanted not to do anything to injure the sale of the work, was enjoined from publishing a rival work on the same subject.* § 115. To prevent breach of agreement in relation to use of premises. — Equity will restrain by injunction the violation of a covenant in a deed restricting the use of land sold. A., owning two adjoining lots bounded on a river, * Martin v. Nutkin, 2 P. Wms., 266. This was one of the earliest of the cases in which the court interfered by perpetual injunction to enforce performance of negative agreements. " Sanders v. Rodway, 22 L. J. Ch., 230. ' Hunt v. Hunt, 8 Jur. N. S., 86. ■* Williams v'. Baily, L. R. 2, Eq. 731. * Armistead v. Ward, 2 Patton & Heath, 504. ° Bullitt V. Songster, 3 Munf., 54. ' Dietrichsen v. Cabburn, 2 Phil., 52. * Barfield v. Nicholson, 2 Sim. «& Stu., i ; 2 L. J. Ch., 90. 10 146 INJUNCTION. § 115- upon one of which stood his family mansion, sold the other lot to B., who covenanted that he would not devote the lot to any purpose which might be offensive or injurious to the occupier of the adjoining property, and that he would not use it for a stone quarry. B. having leased his river-front for the construction of a wharf and railroad, to be used for the transportation and loading into vessels of stone from a quarry, he was restrained by injunction.' The owner of real estate in a city divided it into lots, which he sold to dif- ferent persons by conveyances containing mutual covenants between the grantor and grantees against the erection of any structure or the carrying on of any business which might be offensive to the neighborhood. It was held that the covenants in the several deeds were for the mutual benefit and protection of all of the purchasers of lots, and that, although a previous purchaser could not maintain an action at law upon the covenant in the deed to a subsequent purchaser, yet that he was entitled to protection by injunc- tion against the carrying on of an offensive business upon the lot of such subsequent purchaser.' Where the propri- etors of a public garden having let a house adjoining thereto, with a covenant not to carry on certain trades therein upon penalty of forfeiture of the lease and the pay- ment of fifty pounds a month to the proprietors of the gar- den, and the lessees having executed a sub-lease to the de- fendant, he was enjoined from carrying on the prohibited business, the court saying, " It is in the nature of specific performance. I think you will find many cases. The breach of the agreement may consist in repeated acts."'- And where commissioners leased a lot of land to the plain- tiffs, in order that the latter might erect a club-house ' Seymour v. McDonald, 4 Sandf. Ch., 502. ' Barrow v. Richards, 8 Paige Ch., 351. ^Barrett v. Blagrave, 5 Ves., 555; S. C. 6, lb. 104; and see Williams v. Williams, 3 Mer., 157 ; Fleming v. Snook, 5 Beav., 252 ; Kemp v. Sober, i Sim. N. S., 520 ; Johnstone v. Hall, 2 K. «S: J., 423 ; Wickenden v. Webster, 6 E. & B., 387 ; Hodson v. Coppard, i H. & M., 167 ; Steward v. Winters, 4 Sandf. Ch., 587. § 115. TO PREVENT BREACH OF AGREEMENT. I47 thereon, and agreed that the adjoining land should be laid out as a garden, and not be built on, and the commission- ers afterward permitted stables to be erected on the land, the court enforced specific performance of the agreement by enjoining the defendants from continuing their erec- tions, and from allowing such as were already there to re- main.' A covenant by a railroad company, in a deed of purchase, not to erect any building on the land more than eighteen feet in height within eighty feet of other property of the vendor, was enforced by injunction.' And where land w^as sold upon condition that the purchaser would not build on it until permission was given, he was restrained from building before he had received permission.' A cove- nant, not in a lease, having been inserted in an assignment of the lease, not to carry on a particular trade on the de- mised premises, a lessee of the assignee w^as restrained from carrying it on.' And a person who covenanted not to let any house as a hotel, or any land for the erection of any house to be used as a hotel, or inn, within certain limits, was restrained from doing any act in violation of the cove- nant." Where the lessee of a store was restricted by the lease to occupy the premises for the regular dry-goods job- bing business, and for no other, it was held that he might be restrained by injunction from using the store for any other purpose, without its being shown that the complainant would, otherwise sustain irreparable, or even substantial, injury. In such case, the ground of relief, as stated by the court, was as follows : " Where parties, by an express stipulation, have themselves determined that a particular trade or business conducted by the one will be injurious or offensive to the ' Rankin v. Huskisson, 4 Sim., 13. = Lloyd V. London, Chatham & Dover R.R. Co., 2 DeG, J. & S., 568. And see Clark V. Martin, 49 Pa. St., 289, in which the violation of a covenant not to erect a building, on a lot sold, more than ten feet in height,, was restrained by in- junction. ' Atty. Genl. v. Briggs, i Jur. N. S., 1084. * Jay V. Richardson, 30 Beav., 563 ; Clements w Welles, i L. R. Eq., 200. * Sanders v. Rodway, 16 Beav., 211. 148 INJUNCTION. § 116. Other, and there is a continuing breach of the stipulation by the one, which the court can perceive may be highly- detrimental to the other, although, on the facts presented, it is not clear that there is serious injury, and it is manifest that the extent of the injury is difficult to be ascertained or measured in damages, it is the duty of the court, by in- junction, to restrain further infractions of the covenant, thereby preventing a multiplicity of petty suits at law, and at the same time protecting the rights of the complainant." ' § II 6. To ^'estrain application to legislattire i7i violation of agreement. — Specific performance of an agreement not to apply to the legislature may, in a proper case, be en- forced by means of an injunction ; equity in such case act- ing in personam, and not in any way interfering with the legislative proceedings." It will not be a ground for an in- junction that the proposed application will annul existing rights and create new ones, as that would imply a right to restrain legislative action in all such cases.' So, such an agreement will not be enforced by restraining its violation, even where it was entered into for the protection of pri- vate interests, if the proposed application can be justified on grounds of public policy.' Where company A agreed * Steward v. Winters, 4 Sandf. Ch., 628. Although covenants in total re- straint of trade are void upon grounds of public policy (Mitchell v. Reynolds, i P. Wms., 181 ; Chesman v. Nainby, 2 Stra., 739; S. C, 2 Ld. Raym., 1456; Wickens v. Evans, 3 Y. & J., 318 ; Mallan v. May, 11 M. & W., 653 ; Ward v. Byrne, 5 lb., 548; Hinde v. Gray, i M. & G., 195), yet covenants in partial re- straint of trade, where the limitation is reasonable, will be enforced by injunc- tion, as they encourage the employment of capital and promote industry. Homer V. Ashford, 3 Bing., 326 ; Tallis v. Taliis, i E. & B., 391 ; Mumford v. Gething, 7 C. B. N. S., 305. The court will not enforce by injunction a covenant which is vague and indefinite: Mann v. Stephens, 15 Sim., 379; De Mattos v. Gibson, 4 DeG. & J., 276 ; Paris Chocolate Co. v. Crystal Palace Co., i Sm. & G., 119 ; Bernard v. Meara, 12 Jr. Ch., 389 ; Armstrong v. Courtney, 15 lb., 138 ; Low v. Innes, 10 Jur. N. S., 1037; or harsh and oppressive: Kimberley v. Jennings, 6 Sim., 340 ; Talbot v. Ford, 13 lb., 173 ; Croft v. Haw, 5 L. J. Ch. N. S., 305 ; or if by the enforcement of the contract one of the parties will obtain a con- siderable advantage at the expense of, and without a corresponding benefit to, the other : Mann v. Stephens, supra ; Shrewsbury & Birmingham R.R. Co. v. London & Northwestern R.R. Co., 6 H. L., 113. ^ Ware v. Grand Junction Water-Works Co., 2 Russ. & M., 470, 483. And see Atty. Genl. v. Manchester & Leeds R.R. Co., i Rail. Cas., 436. = Heathcote v. North Staffordshire R.R. Co., 2 M'N. & G., 100. " Lancaster & Carlisle R.R. Co. v. Northwestern R.R. Co., 2 K. & J., 293. See Stockton & Hartlepool R.R. Co. v. Leeds, etc., R.R. Co., 2 Phil., 666. § 117. IN CASE OF BREACH OF ENGAGEMENT. I49 • with company B not to make any line connecting their re- spective roads excepting one, apphcation for which had already been made, in consideration that company B would support, instead of oppose (as they had before done), the application of company A for the last-mentioned line, and the former performed their part of the agreement, and the application succeeded, the court nevertheless refused to enjoin the defendants from applying to Parliament in vio- lation of their agreement : for the reason that if such an application were successful, it would be so on public grounds ; and if unsuccessful, the breach of the agreement might be compensated in damages." § 117. In case of breach of engagement for personal serv- ices. — Equity formerly declined to restrain the violation of a negative stipulation in a contract when it could not enforce the affirmative part of the agreement, the aggrieved party being obliged to seek his redress at law. Thus, where an actor entered into an agreement with the proprietors of Co- vent Garden Theatre to perform there for twenty-four nights, and in the meantime not to act at any other place in Lon- don, it was held that as the court could not enforce the posi- tive part of the contract, it would not restrain by injunction a breach of the negative part.' So an actor who had agreed in ' Lancaster & Carlisle R.R. Co. v. Northwestern R.R. Co., supra. ^ Kemble v. Kean, 6 Sim., 333 ; subsequently overruled in Webster \^ Dillon, 3 Jur. N. S., 432. In Kemble v. Kean, supra, the terms of the agreement were complied with except as to ten nights, when Kean left to perform at Drury Lane. The plaintiff thereupon filed a bill praying that the defendant might be decreed specifically to perform his contract, and that in the meantime he might be restrained from acting at Drury Lane. The lord chancellor granted an in- junction ex parte restraining the defendant from acting at Drury Lane until he had acted the ten nights at Covent Garden, with liberty for the defendant to move to dissolve the injunction before the vice-chancellor. The latter dissolved the injunction on the ground that the court had no power to enforce such a con- tract. He said : " The bill is filed for the purpose of enforcing an agreement which mainly consists in the defendant's acting ; and it appears to me that it is utterly impossible that this court can execute such an agreement. In the first place, independently of the difficulty of compelling a man to act, there is no time stated, and it is not stated in what character he shall act ; and the thing is altogether so loose that it is perfectly impossible for the court to determine upon what scheme of things Mr. Kean shall perform his agreement. There can be no prospective declaration or direction of the court as to the performance of the agreement ; and, supposing Mr. Kean should resist, how is such an agreement to 150 INJUNCTION. § 117- • writing with a theatrical manager not to perform at any other theatre for a term of years, having broken his engage- ment, and a bill having been filed to restrain him by in- junction, and to compel performance, it was held that it was a mere matter between employer and employed, and that the remedy was at law ; and an injunction which had been granted was dissolved/ In a subsequent case it was allcpfed in the bill that the defendant had contracted with the plaintiff to perform and sing in concerts and operas, and that he would not enter into an engagement with any- body else, that he was about to form other engagements, and to leave the State, and the plaintiff prayed for a decree of specific performance, and for an injunction, and a writ of ne exeat. On a motion by the defendant to dissolve the injunction, and discharge the ne exeat, the court, in grant- ing the motion, said: "Although there may be cases in which a court of equity will decree specific performance of a contract for personal services, still, this is not one of that character. The difficulty, if not the utter impracticability, of compelling a specific performance of the contract set forth in the bill, is a conclusive reason why this court should refuse its interference. The complainant should be left to his remedy at law. If, however, there were any doubt upon principle, yet I consider it abundantly settled upon author- ity, that the complainant can have no relief upon the equity side of the court.'"" But it is obvious that a tenacious ad- herence to the foregoing doctrine would often deprive the complainant of all redress. In England a more just prac- tice is now established ; and the tendency in the United States is in the same direction. In Lumley v. Wagner," be performed by the court ? Sequestration is out of the question. And can it be said that a man can be compelled to perform an agreement to act at a theatre by this court sending him to the Fleet for refusing to act at all ? There is no method of arriving at that which is the substance of the contract between the parties by means of any process which this court is enabled to issue." ' Hamblin v. Dinneford, 2 Edw. Ch., 529. See De Rivafinoli v. Corsetti, 4 Paige Ch., 264 ; Phillips v. Stauch, 20 Mich., 369 ; Burke v. Seeley, 46 Mo., 334. * Sanquirico v. Benedetti, i Barb., 315. M De G. M. & G., 604. §117. IN CASE OF BREACH OF ENGAGEMENT. I5I the plaintiff had entered into a written contract with Ma'Ue Wagner, cantatrice to the King of Prussia, for her services for three months at his theatre in London, upon certain specified terms ; and there was a condition inserted, that she should not use her talents at any other theatre, nor in any concert or re-union, without the written consent of the plaintiff. She subsequently entered into an engagement to sing at another theatre. The'plaintiff thereupon filed a bill for an injunction to restrain her from performing or sing- ing in violation of her engagement with him. An injunc- tion having been granted by the vice-chancellor, a motion to dissolve it, which came before the lord chancellor, was denied.' So, it has been held that w^here a party enters into a written contract with an artist, that the latter shall work for the former for a certain period at an agreed price, and shall not work for any other person during said time, such artist may be restrained by injunction from violating his agreement by working for anybody else.'' Where an actor ' Lord Chancellor St. Leonards said : " Where is the mischief of exercising this jurisdiction ? I cannot compel her to perform, of course. That is a juris- diction the court does not possess ; and it is very proper it should not possess it. But what cause of complaint is it, that I should prevent her from doing an act which may compel her to do what she ought to do ? Though I cannot compel the execution of the whole contract, I leave nothing unaccomplished which I hold it to be in the power of the court to accomplish. By preventing her from doing the act, there will be no case in an action by Mr. Lumley against her for such an amount of vindictive damages as a jury might possibly be disposed to give if she exercised her talents in a rival theatre." * Fredericks v, Mayer, 13 How. Pr., 566, N. Y. Superior Court. In this case, Hoffman, J., said : " I am inclined to the opinion, that services which involve the exercise of powers of mind, which in many cases, as of writers, and performers, are purely and largely intellectual, may form a class in which the court will in- terfere. Such services are generally individual, and peculiar. They exist in nat- ure, or in degree, with some modification of character or expression in the one person. The element of mind exhibited in the subject of the contract, as dis- tinguished from what is mechanical and material, may perhaps furnish a rule of distinction and decision." An injunction was denied in the foregoing case, on the ground that the plaintiff had no house or place of business distinct from the person for whom the defendant worked in alleged violation of his agreement, but was, in fact, a partner of such person. In a subsequent case, the same judge reiterated the foregoing views, as follows : " I am unwilling to hold, and do not think I am bound by the cases to hold, that where there are clear and absolute negative stipulations on the part of a party, upon a subject involving in part the exercise of intellectual qualities, and a special case of the impossibility or great difficulty of measuring damages is presented, that the jurisdiction to forbid the violation of such covenants does not exist." Butler v. Galetti, 21 How. Pr., 465. 152 INJUl^CTION. § TI7. having engaged to perform at the plaintiff's theatre for a certain sum, and not to perform elsewhere during the time, entered into an engagement to perform at another theatre before the expiration of the contract, it was held that he might be restrained from carrying out his second engage- ment.' But a motion for an injunction to prevent a public dancer from violating a covenant not to render her personal services to any other person than the plaintiff, was denied, where it appeared that the plaintiff had no place at which the defendant could fulfil her engagement, and that conse- quently he was not sustaining any damage.' An agreement entered into between a publisher and an author, that the latter should write for the former, and should not, during the continuance of the agreement, write for any other publi- cation, was enforced by injunction ; and another publisher was restrained from employing him.' In England it is now held that an actor, who has agreed to perform for a definite time at a particular theatre, may be restrained by injunction from performing at any other theatre during the period of his engagement, without any negative clause in the contract restricting him from performing elsewhere.* 1 Hayes v. Willio, 11 Abb. Pr. N. S., 167. = De Pol V. Sohike, 7 Robertson, N. Y., 280. ' Stiff V. Cassell, 2 Jur. N. S., 348. * Montague v. Flockton, L. R. 16, Eq. 189. "A man agreeing- to act in one particular theatre during the season, is party to a- contract that he will act there and not anpvhere else. A negative contract is as necessarily implied as if it had been plainly expressed." Ibid, per Malins v. C, referring to De Mattos v. Gibson, 4 De G. & J., 276, which involved the same principle. But in opposition to this reasonable and just proposition, it was not long since held in Pennsyl- vania, that the personal services of an actor would not be enforced by a court of equity by enjoining him from perfonning at any other theatre. The court, per Hare, ]., said : " Is it not obvious that a contract for personal services thus en- forced, would be but a mitigated form of slavery, in which the party would have lost the right to dispose of liimself as a free agent, and he, for a greater or less length of time, subject to the control of another? And as this objection is to the substance of the relief desired, and not to the form, it must prevail even when the agreement to render the service is coupled with a stipulation that the contracting party will not enter into the employment of another master or en- gage in work of any other kind. Otherwise the court might be compelled to transcend the limits within which its jurisdiction ought to be confined, and en- gage in a contest where the sympathies of mankind would be with the weaker party, by simply coupling the affirmative words with a negative stipulation that the covenantor will not do for others what he agrees to do for the covenantee. § ii;. IN CASE OF BREACH OF ENGAGEMENT. 1 53 I deem it unnecessary to carry the argument further on a point which must be intuitively apprehended by every man of sound judginent." Ford v. Jermon, 6 Phila., 6. A short, and it seems to us conclusive, answer to the foregoing is, that the actor, in the given case, has sold his services for the stipulated time, and by parity of reasoning, the seller of some rare article might, notwithstanding his agreement, proceed, in violation of it, to dispose of the same thing to another person, and be deemed by the court an object of sympathy, and entitled to its encouragement and protection in a proceeding essentially unfair and dishonora- ble, if not dishonest. In this instance, the weaker party is the employer, and not the employe, who, if permitted to break his engagement, has the other in his power, and may at any time subject him to serious loss. The ordinary case of hiring and service presents a totally different question. CHAPTER IV. WRIT OF NE EXEAT. 1 1 8. Orig-in and nature. 119. Demand must be equitable and certain. 120. Not granted when defendant held to bail. § 1 1 8. Introduction and how employed. — The writ of ne exeat, which is a remedy appertaining to the exclusive ju- risdiction of equity, is sometimes called into requisition in suits for specific performance. It was unknown to the ancient common law, which permitted any man to depart the realm at his pleasure.' But being of practical impor- tance, and often indispensable to justice, it dates from a very early period — probably between the reign of King John and that of Edward I. It originated in the idea that, as every subject was bound to defend the king and his realm, the king might, as a part of the prerogative of the Crown, command any man not to leave the realm. In this country it is a writ of right, rather than a prerogative writ. It is in general only granted in case of equitable debts and claims ; there being in relation to legal claims an adequate remedy at law.' It has been defined, "A mesne process, issuing from the court of chancery, to hold a party to equi- table bail, that he may not depart from the realm or the jurisdiction of the court, but be present with his body to answer any decree which the court of chancery may make in the case against him, and commanding the arrest and imprisonment of the defendant if he or she fail to furnish such bail.'" It "bears no resemblance to the mesne or ' Beames on ne exeat, i. " Seymour v. Hazard, i Johns. Ch., i ; Forrest v. Forrest, 10 Barb., 46. ^ Adams v. Whitcomb, 46 Vt., 708, per Ross, J. ; 3 Blk. Com., 213:3 Danl. Ch. Pr., 1 801. §119. WHEN GRANTED OR REFUSED. 1 55 final process of the common law courts. Its primary pur- pose is not to arrest the defendant, nor to put him in safe custody during the pendency of the litigation It commands the sherifT to cause the defendant to come before him and give sufficient security that he will not go without the State into foreign parts without leave of the court ; and if he shall refuse to give such security, then to commit him to the common gaol of the county until he do so of his own accord. Until he refuses to give the req- uisite security, he cannot be restrained of his liberty ; and when he has given it, he may go wherever he pleases, pro- vided he is within the jurisdiction of the court when its process to enforce the decree issues. In the meantime, he is not deemed to be in the custody of any person."' The remedy need not necessarily be by writ, but may be by an order that the party within a limited time give security that he will not depart, and, in default, that an attachment issue for contempt.'' § 119. When granted or refused. — It must be shown that there is not an adequate remedy at law.' Where, how- ever, a court of equity has concurrent jurisdiction with the courts of law, it will not refuse to grant a writ of ne exeat merely because the plaintiff has a remedy at law ; ' as in the case of a vendor of land, who, although he may proceed at law for the purchase money, is yet entitled to a ne exeat to restrain the purchaser from going abroad until he has ' Brown, J., in Bushnell v. Bushnell, 15 Barb., 309. Whenever the defendant intends to leave the State, the complainant, upon producing evidence of such intention and of his equitable claim, has a right to equitable bail. Mitchell v. Bunch, 2 Paige Ch., 617. The writ may be applied for at any stage of the pro- ceedings. Dunham v. Jackson, i Paige Ch., 629; but see Sharp v. Taylor, 11 Sim., 50, The power of a court of equity independently of any statute to obtain security for the performance of its decree by ordering by a writ of capias the arrest of a party intending to leave the State to avoid such decree, is analogous to the practice pertaining to the writ of ne exeat. Samuel v. Wiley, 50 N. H., 353- " Atty.-Genl, v. Mucklow, i Price, 289. 3 Orme v. McPherson, 36 Ga., 571. * Lucas V. Hickman, 2 Stew., 11 ; Macdonough v. Gaynor, 18 N. J. Eq., 249. 156 WRIT OF NE EXEAT. § ^19- given security for the amount.' The demand must in gen- eral be an equitable debt or pecuniary claim which is due, and be certain or capable of being reduced to a certainty." Therefore, it wnll not be granted on the ground that the plaintiff is apprehensive that the defendant may not be will- ing to fulfil an engagement for personal services, when, from the peculiar nature of those services, they cannot be performed until a future day.' A general unliquidated de- mand, or one in the nature of a claim for damages w^hich cannot be regarded as a debt until the decree, will not lay a foundation for the writ." Where the demand w^as merely contingent, consisting of the claim of a wife against her husband under a marriage settlement in case she survived him, the application was refused, as the contingency might never happen.' The writ was refused upon a bill to enforce an agreement to give the plaintiff a bill of exchange as a security for a demand.' So, the writ w^as discharged where the plaintiff claimed that he was entitled to it on the ground that the defendant was bound to convey to him one-half of a patent-right, which he refused to do.' A ne exeat will be ' Boehm v. Wood, T. & R., 332. The writ will be granted, notwithstanding the vendor has a lien upon the land for the purchase money which he may en- force by selling the land. "^ Whitehouse v. Partridge, 3 Swanst., 365 ; Bonesteel v. Bonesteel, 28 Wis., 245. A petition for a ne exeat alleged that the petitioner was the owner by as- signment of two promissory notes ; that, according to the petitioner's informa- tion and belief since said notes were made, the maker had sold the greater part of his property and was endeavoring to sell the remainder, and threatened to leave the State and take his property with him, and said that he would not pay the notes. It was held that in a case like the foregoing, not of an equitable nat- ure, the plaintiff must show by his petition, by facts stated and circumstances detailed, that the debtor had been guilty of fraud, or that there was a strong pre- sumption of fraud ; which, not having been done, the judgment of the court be- low granting the writ must be reversed. Malcolm v. Andrews, 168 111., 100. ' De Rivafinoli v. Corsetti, 4 Paige Ch., 264. * Graham v. Stucken 4 Blatchf., 50. '' Anon. I Atk., 521 ; see Porter v. Spencer, 2 Johns. Ch., 169 ; Cox v. Scott, 5 Harr. & Johns., 384 ; Brown v. Haff, 5 Paige Ch., 235. A party may have re- lief in some cases against his principal, where the debt has become due, by com- pelling the principal to discharge the debt in exoneration of the surety. Gibbs V. Mermaud, 2 Edw. Ch., 482. " Blaydes v. Calvert, 2 J. &. W., 211. ' Covvdin v. Cram, 3 Edw. Ch., 231. Where the defendant had sold and con- v^eyed all of his property, and converted the same into money or choses in action. ^ I 20. CONSEQUENCE OF HOLDING DEFENDANT TO BAIL. 1 57 granted in a suit for specific performance against the ven- dee where the purchase money constitutes the demand against him, the payment of which is sought to be enforced, when it clearly appears that the vendor can give a good title and the defendant is about to leave the jurisdiction, " because there is an equitable moneyed demand of indebted- ness, the amount of which governs the court in marking the writ for bail.'" § 120. Consequence of holding defendant to bail. — A court of equity will not grant the writ if the defendant has been held to bail for the same demand. Where, therefore, the vendor caused the purchaser to be arrested at law, and held to bail for the amount of the purchase money, and the plaintiff having discontinued the suit, the bail was discharged, a writ of ne exeat afterward obtained by the same plaintiff upon a bill to enforce the contract, was dismissed." and was threatening to leave the State and thereby prevent the plaintiff from having an accounting and settlement of partnership transactions, it was held that a writ of ne exeat was properly issued. Dean v. Smith, 23 Wis., 483 ; see Myer v. Myer, 25 N. J. Eq., 28. In Arkansas the statute allows the writ in cases where there are contracts or covenants to be performed, and the time for pay- ment or performance has not arrived, if the complainant entered into the agree- ment in good faith, and without any information of an intention on the part of the defendant to leave the State. Gresham v. Peterson, 25 Ark., 377. ' McCoun V. C. in Cowdin v. Cram, supra. ' Raynes v. Wyse, 2 Mer., 472 ; and see Amsinck v. Barklay, 8 Ves., 594. BOOK III. DEFENCES. CHAPTER I. INCAPACITY OF PARTY. 121. What subjects considered. 122. Incapacity of defendant to contract. 123. Incapacity of plaintiff, 124. Person holding confidential position. 125. Where defendant has no power to perform agreement. 126. Party acquiring power to perform subsequent to entering into contract. 127. Where consent of third person is necessary. 128. Agreement substantially carried out. 129. Where contract is illegal in form. 130. In case of disability as to part of contract. 131. Where contract is in the alternative. § 121. In what it may consist. — The absence of jurisdic- tion where the contract itself is such that the court cannot enforce its performance, has already been considered." The objection to which attention is now called is wholly differ- ent, not having to do with the nature or terms of the agree- ment, or the power of the court, but with considerations personal to one or other of the parties. It is, moreover, an objection fundamental in its character and not peculiar to the jurisdiction of equity in specific performance, but equally available at common law ; and it is one which, to be understood and accepted, requires but little more than its announcement. What follows, therefore, under this head will be brief. A person may either have been incapable of contracting, or not have the power to perform the agree- ment when made. The former is to be judged of at the time of the contract, while the question as to inability to ' Ante, § 49. §§ 122, 123- OF PARTY BRINGING SUIT. 1 59 perform is to be determined when performance is required. Both of these objections, though differing as matters of defence, seem appropriately to range themselves under one head ; and they will therefore form the subject of this chapter. § 122. May be alleged in behalf of defendant. — It will be a defence, that one of the parties to the contract sought to be enforced was incapable of making a valid agreement ; and, on the principle of mutuality, the objection, as we shall presently see, may be made by one who is himself compe- tent. Personal incapacity on the part of the defendant to enter into a binding agreement at the time it is alleged to have been made, will, of course, be a sufficient defence to a suit for specific performance : as in case of temporary dep- rivation of reason caused by gross intoxication ; ' but not the mere fact that the party at the time of entering into the contract had partaken freely of intoxicating liquor, in the absence of fraud, or of evidence that he had not a full un- derstanding and knowledge of what he was doing." § 123. Of party bringing suit. — The personal incapacity of the plaintiff at the time of fihng the bill would con- stitute a defence to a suit for specific performance ; ' but not his incapacity when he entered into the contract if his incapacity has since been removed.* An infant cannot, while an infant, enforce the contract ; ' nor can the other party during the infancy rescind it.' But when an infant, after coming of age, affirms the contract by filing a bill for spe- ' Malins v. Freeman, 2 Keen, 34; Cooke v. Clayworth, 18 Ves., 12 ; Cragg v. Holme, lb., 14, n. ; Nagel v. Baylor, 3 Dr. & W., 60; Campbell v. Ketcham, I Bibb., 406 ; Wigglesworth v. Steers, i Hen. & Munf., 70 ; White v. Cox, 3 Hayw., 82 ; Morrison v. McLeod, 2 Dev. & Batt., 221 ; Ford v. Hitchcock, 8 Ohio, 214; Conant v. Jackson, 16 Vt., 335 ; Prentice v. Achorn, 2 Paige Ch., 30; Donelson V. Posey, 13 Ala., 752 ; Cavender v. Waddingham, 2 Mo. App., 551. ''Lightfootv. Heron, 3Y. &.C. Ex., 586; Shaw v. Thackray, i Sm. & G., 537. See I Story's Eq. Juris., Sec. 230, et seq. ; post, % 162, ■' Flight V. Bolland, 4 Russ., 298 ; Richards v. Green, 23 N. J. Eq., 538. * Clayton v. Ashdown, 9 Vin. Abr., 393. ^ Flight V. Bolland, supra. An infant cannot maintain a suit for specific per- formance, because the contract could not be enforced against him. ° Smith V. Bowen, i Mod., 25 ; Shannon v. Bradstreet, i Sch. & Lef., 58. l6o INCAPACITY OF PARTY. § 1 24. cific performance, or otherwise, it becomes mutual, and he is bound by it/ A married woman is entitled to a specific performance of her contract of purchase when her separate estate is sufficient to enable her to fulfil her obligations under it/ § 124. On accottnt of fidziciary relation. — The inca- pacity of a party to contract may be objected, on the ground that he is a trustee, guardian, agent, or other person holding a confidential position. But questions of this character depend upon the general doctrines of the court • Milliken v. Milliken, 8 Ired. Eq., 16. - Hulme V. Tenant, i Bro. C. C, 16. In the case oi femes covert, the court pro- ceeds upon the principle that if a married woman have not separate property, she is incapable of contracting ; and if she have, she can only contract in rela- tion to that ; and the remedy is against such property, and not against her per- sonally. Francis v. Wigzell, i Mad., 258 ; Aylett v. Ashton, i My. and Cr., 105 ; Humphreys v. HoUis, Jac, 73. Thejpower of the wife to contract with her hus- band is not restricted to her separate property, but extends to other matters, as to which she may be regarded, for the purposes of the contract, as a feme sole. Thus, a wife suing her husband for a divorce, may contract with him to abandon the suit. Vansittart v. Vansittart, 4 K. & J., 62. " A. feme covert is not competent to enter into contracts so as to give a personal remedy against her. Although she may become entitled to property for her separate use, she is no more capable of contracting than before ; a personal contract would be within the incapacity under which a. feme covert labors." Lord Cottenham, i My. & Cr., Ill, 112. A married woman possessed of separate property, and living apart from her husband, verbally agreed for the lease of a house. The agree- ment was reduced to writing, signed by the lessor's agent, and handed to her. She did not execute it, but, in letters written by her, referred to it as an agree- ment ; and she took possession. In a suit by the lessor against her and her trus- tees, to enforce the payment of the rent, it was held that she was liable to the ex- tent of her separate estate. Gaston v. Frankum, 2 De G. & Sm., 561. When a married woman undertakes to contract by means of a power, to be exercised in a particular way, and she does not observe the required formalities, the instru- ment is void as an agreement, and specific performance cannot be decreed against her. Martin v. Mitchell, 2 J. & W., 413, 434. See ante, § 66, note 2, p. 93. A contract entered into by a lunatic, during a lucid interval, is binding. Hall V. Warren, 9 Ves., 605. As to proof of a lucid interval, see Atty. Genl. v. Parn- ther, 3 Bro. C. C., 441 ; Holyland ex parte, 11 Ves., 10; Ray's Med. Juris. Ch., 14. When, after a person has contracted, it is discovered that he was previously a lunatic, the other may bring a suit for specific performance, and obtain an issue to ascertain whether the defendant was a lunatic at the date of the contract, and if so, whether he had lucid intervals, and whether the contract was executed dur- ing such an interval. Hall v. Warren, supra. Or the plaintiff may ask, in the alternative, to have the contract either performed or discharged ; and in the lat- ter case, the court will allow him, if vendor, to retain out of the deposit his costs, charges, and expenses. Frost v. Beavan, 17 Jur., 369. See Neiil v. Morley, 9 Ves., 478. In determining the question of insanity, a court of equity is governed by the same principles as a court of law. Bennet v. Vade, 2 Atk., 327 ; Osmond V. Fitzroy, 3 P. Wms., 129. The subsequent lunacy of a party to a contract does not affect the rights of the other party. Owen v. Davies, i Ves. Sen., 82. § 125. INABILITY OF DEFENDANT. I61 with regard to such relations, and oftener arise in suits to set aside the transaction than in proceedings for specific performance. § 125. Inability of dcfeiidaiit. — If it be out of the power of the defendant to perform the agreement, it necessarily constitutes a sufficient reason why the court should refuse to decree specific performance ; or, in other words, to do what would be nugatory. This is so obvious as scarcely to require any illustration.' Where, in a suit against the pro- visional committee of a projected railroad company for the specific performance of a contract to deliver to the plaintiff scrip certificates, it was not alleged that the defendants had any scrip which they could deliver, but there was an aver- ment from which the contrary might rather be inferred, a demurrer was sustained on the ground that the bill did not show that the defendants were able to fulfil' The result will be the same, notwithstanding the defendant may have been in a situation to carry out the contract when he en- tered into it, but afterward deprived himself of the ability to do it by his own voluntary and wrongful act. If, for instance. A., after entering into a valid agreement to sell and convey real estate to B., should convey it to C, who is a bona fide purchaser for a valuable consideration without notice, A., by depriving himself of the power to fulfil his agreement with B., also deprives B. of the right to a decree for specific performance.' When, however, the court has 1 Green v. Smith, i Atk., 573; Danforth v. Phila., etc., R.R. Co., 30 N. J. Eq., 12. 2 Columbine v. Chichester, 2 Phila., 27. And see Hallett v. Middleton, i Russ., 243 ; Ellis v. Colman, 4 Jur. N. S., 350 ; Phillips v. Stauch, 20 Mich., 369- 2 Denton v. Stewart, i Cox, 258; Greenawav v. Adams, 12 Ves., 395 ; Smith V. Kelley, 56 Me., 64 ; Gupton v. Gupton, 47 Mo., 37. When the vendor of land by contract, conveys the property contracted to be sold to a third person in such a manner that the land cannot be reached, the court will not entertain a bill in equity for specific performance merely for the purpose of compensating the pur- chaser in damages, but will leave him to his action upon the agreement. Some ground of equitable interference will be required to induce a court of equity to grant relief in such a case. But a mere contract to convey the land to a third person will not be a defence. II 1 62 INCAPACITY OF PARTY. § I 26. properly obtained jurisdiction, it is not necessary, as will be seen hereafter," that the plaintiff be remanded to an action at law simply because the evidence shows that the defend- ant has put it out of his power to perform the contract, but the suit may be retained and compensation given in dam- ages.'' § 1 26. Ability acquired subseqtient to contract. — Although a party, when he entered into a contract, had no power to fulfil, yet if he afterward acquires the power, he is bound to perform his agreement. Mr, Fry,' in illustration of this principle, mentions the following case decided in the reign of Charles II. During the civil war, the then Duke of New- castle being abroad, the defendant, who was his heir appar- ent, without his authority sold and conveyed to the plain- tiff certain estates of the duke, and received and used the purchase money for the benefit of the family. The de- fendant having afterward succeeded to the dukedom and the estates in question, as heir, he was held bound to make good the sale, which was decreed.' And if the defendant, though he have not the present ability to perform the con- tract, is able to acquire it, he will be compelled to do so, and to carry out his agreement." Therefore, when a bill for specific performance is filed against the vendor, he can- not object that he does not own the interest he has con- tracted to sell ; as he will not be permitted to say that he does not mean to obtain such interest' So, where the de- fendant, who had contracted to give to the plaintiff an in- demnity secured on real estate, alleged that he had no real ' Post,% 517. * Renkin v. Hill, 49 Iowa, 270. See Stearns v, Beckham, 31 Gratt., 379. A vendee will not lose his right against a vendor who can complete, because, from a circumstance ot which the purchaser had no knowledge, he has no right against another person who cannot complete. Where, for instance, an agree- ment is entered into by A. and B. with C, and it afterward appears that B. had no interest in the property, A. may nevertheless be compelled to convey his in- terest to C. Harrocks v. Rigby, L. R. 9, Ch. D. 180. * Specif, Perform., 291. * Clayton v. Duke of Newcastle, 2 Cas. in Ch., 112. ^ Carne v. Mitchell, 15 L. J. Ch., 287. ° Browne v. Warner, 14 Ves., 412. §12;. INABILITY TO OBTAIN CONSENT OF ANOTHER. 1 63 estate of sufficient value, and insisted that the plaintiff ought to accept a personal indemnity, it was held that the defendant was bound to purchase real estate of sufficient value/ If a person agrees to convey land to another on a certain day thereafter, and on the day named he owns the land, the agreement is binding on both parties/ Contracts which require the interposition of the legislature before they can be carried into effect, will not be regarded as void.' An agreement for the sale of personal property not at the time in the possession of the seller, is vaHd, and may be en- forced, if that be the only objection to a decree for specific performance.* § 127. Inability to obtain conse7it of another. — When a contract is entered into which requires the consent of a third person, and such consent cannot be obtained, specific performance will not be decreed.^ If, therefore, the wife's consent is necessary to the performance of a contract entered into by the husband, or husband and wife, and she refuses to give it, he will not be decreed to obtain his wife's consent ;' ^ Walker v. Barnes, 3 Mad., 247. '^ De Medina v. Norman, 9 M. & W., 820. 3 Gt. Western R.R. Co. v. Birmingham & Oxford June. R.R. Co., 2 Phil., 597 ; Hawkes v. Eastern Counties R.R. Co., i De G. M. & G., 756 ; Devenish v. Brown, 26 L. J. Ch., 23 ; Frederick v. Coxwell, 3 Y. & J., 514 ; Mayor of Nor- wich V. Norfolk R.R. Co., 4 Ell. & Bl., 397. * Hibblethwaite v. M'Morine, 5 M. & W., 462. The contrary seems to have been decided by Lord Macclesfield in Cuddee v. Rutter, 5 Vin. Abr., 538 ; PI., 21. ^ Howell V. George, i Mad., i ; Grey v. Hesketh, Ambl, 268. And see Marsh V. Milligan, 3 Jur. N. S., 979; Beeston v. Stutely, Week. Rep., 1857-1858, 206. ° Bryan v. Wooley, i Bro. P. C, 184 ; Emery v. Wase, 8 Ves., 505 ; Frederick V. Coxwell, 3 Y. & J., 514; Martin v. Mitchell, 2 J. & W., 413, 425 ; Davis v. Jones, I N. R., 269. In Iowa, where a husband agreed to convey lands in which there was a homestead right under the statute regulating " homesteads," and the wife did not join in the agreement, it was held that specific performance could not be decreed, the wife refusing to give her consent. Yost v. Devault, 9 Iowa, 60; Barrett v. Mendenhall, 42 lb., 296. See Long v. Brown, 66 Ind., 160. Although a husband will not be decreed to procure his wife to join in the execu- tion of a deed for the purpose of releasing her inchoate right of dower if she is unwilling to do so ; yet, if the refusal of the wife is made in bad faith, or by the procurement of her husband merely to enal)le him to escape his just obligations, the court may decree a conveyance by the husband alone, and compel him to give indemnity by mortgage or otherwise against the claim of the wife. Peeler v.. Levy, 26 N. J. Eq., 330. For a full discussion of this subject and citation of cases, see post, §511. In several of the States the wife may now enter into con- tracts in relation to her own property, without the consent or joinder of her hus- band. 164 INCAPACITY OF PARTY. § 1 27. though it was formerly held otherwise.' Where, however, a father covenanted that his son, who was then under age, should convey lands to a purchaser, he was decreed to procure the son to convey, on the son coming of age.* ' Barrington v. Horn, 2 Eq. Cas. Abr., 17, PI. 7 ; Hall v. Hardy, 3 P. Wms., 187 ; Daniel v. Adams, Ambl., 495 ; Morris v. Stephenson, 7 Ves., 474. " The court used formerly to decree the husband to procure his wife's consent, and in default, commit him to jail until she yielded. But the absurdity of such a course is obvious ; because the court of chancery would be putting all the compulsion it could upon the wife to induce her to do an act of which the essence is that it is done without compulsion. The court of chancery would be distressing her to give her consent, whilst the court of common pleas is examining her to see that she is acting from free will alone ; and it is accordingly now established, that the court will not interfere specifically to perform contracts where a wife's consent is requisite, and she refuses to give it." Fr)- on Specif. Perform., 293. In Hall V. Hardy, 3 P. Wms., 187, it was stated by Sir Joseph Jekyll, Master of the Rolls, that there had been a hundred precedents, where, if the husband for a v'aluable consideration covenants that the wife shall join with him in a fine, the court has decreed the husband to do it ; for that he had undertaken it, and must lie by it Subsequently, however, the doctrine was questioned, and in some of the cases denied. Davis v. Jones, 4 Bos. & Pull., 267 ; Martin v. Mitch- ell, 2 Jac. & Walk., 413. In Emery v. Wase, 8 Ves., 505, Lord Eldon said that the argument showed that the point was not so well settled as it had been understood to be. " The purchaser is bound to regard the policy of the law ; and what right has he to complain, if she, who according to law cannot part with her property, but by her own free will expressed at the time of that act of record, takes advantage of the locus poenitenticEr And see i Roper, Husb. & Wife, 545, 547-8, tiote ; Bright's Husb. & Wife, 191. In Watts v. Kenney, 3 Leigh., 272, Tucker, J., said : " As to compelling a husband to procure a con- veyance, the doctrine, never well received, has never been acted on with us, and seems recently to have been discountenanced in England." See remarks of Sir Thomas Plumer in Martin v. Mitchell, 2 J. & W., 425 ; and see Frederick v, Coxwell, supra. In England, it has been held that the court has no jurisdic- tion to make a peremptory order that a married woman shall execute a convey- ance pursuant to a decree, and acknowledge it. Jordan v. Jones, 2 Phil., 170. In Pennsylvania, where a married woman executed a deed of property of which she held the legal title in trust by descent, and the law required her to acknowl- edge that she executed it voluntarily, and she refused, the court passed a decree compelling her to do so. Dundas v. Biddle, 2 Pa. St., 160. But in the same State, where the wife died before her conveyance was delivered, it was held that the land vested in her heirs, for the reason, that until delivery, she might revoke her assent, notwithstanding she had acknowledged the deed. Leland's Appeal, 13 Pa. St., 84. Had the deed been delivered in her lifetime as an escrow, a dif- ferent case would have been presented. It was a matter of some consequence to the heirs ; for if a conveyance had been decreed, the purchase money would have gone to the husband. Where a person contracted for the sale of a lot of land, described as the "buck lot," and his wife joined in the contract, but did not acknowledge it, as required by the statute, and a deed was subsequently given duly executed by the husband and wife, of a lot numbered one hundred and twenty-three, the num- ber of the " buck lot " being one hundred and three, it was held that, the wife having died before the discovery of the error in the deed, her infant heir could not be compelled to convey according to the contract. Knowles v. McCamley, 10 Paige Cfi., 342. * Anon, 2 Cha. Cas., 53. § 128. SUBSTANTIAL PERFORMANCE. l6$ But this decision would not now be regarded as au- thority/ § 128. Substantial pel' for 77iance. — Equity, having regard to the substance, rather than to the form of contracts, will not allow the impossibility of a literal fulfilment to prevail as a defence, when the agreement can be substantially car- ried out so as to effectuate the intentions of the parties, and do entire justice between them/ Thus, where a man undertook to convey certain land, and there was no such land, the court compelled him to convey land of equal value/ The following case was decided on the same prin- ciple : A party having entered into an agreement to build a bridge over the river Tyne, and to maintain it for seven years, for the sum of nine thousand pounds, and having given a bond in that sum for the performance of the con- tract, it was found that a bridge on that site could not be maintained. He thereupon brought a suit for relief from the bond, which was granted upon the terms of his build- ing a bridge upon a neighboring site, where it could stand, and submitting to an issue of quanttim damnijicatus by the change of site.* A bill for the specific performance of a contract, alleged that the defendants agreed to procure, within two years, the heir at law of A. B. to convey certain property to the plaintiffs, or, within the same period, to petition the House of Lords for, and to use their utmost endeavors to obtain, an act of Parliament for substituting a trustee in place of the heir, in case such heir could not be found. It was held, that although an agreement by a per- ' Howell V. George, i Mad., 4. See Evans v, Cogan, 2 P. Wms., 451. "Shaw V. Livermore, 2 Green, Iowa, 338 ; Philadelphia, etc., R.R. Co. v. Le- high, etc., Co., 36 Pa. St., 204. A court of equity will aid a vendee who shows a readiness to perform substantially his agreement, when it will not work injury to the other party. Hart v. Brand, i A. K. Marsh, 159. Where a purchaser of land stipulated to pay the taxes, but failed to do so, and allowed it to go to sale, he bidding it off himself, it was held a sufficient performance if no inequi- table advantage was sought or intended from the sale ; it being an indirect mode of paying the taxes. Oliver v. Crosswell, 42 111., 41. ' Carey v. Stafford, 3 Swanst., 427, n. ^Errington v. Aynesly, 2 Bro. C. C, 341. See Davis v. Hone, 2 Sch. & Lef., 351. Se.t post, Book 4, Ch. i. 1 66 INCAPACITY OF PARTY. § I 29. son to use his utmost endeavors, could not be enforced, yet that the court would compel the defendants to permit their names to be used in an application to Parliament for the act." § 129, Where contract invalid in form. — Within the rule under consideration, when the contract, in the form in which it is drawn, is illegal, the court will enforce it in sub- stance, if it can be lawfully performed in this way. Thus, where a contract providing that a tenant should pay the rent charge was illegal by statute, it was held that an agree- ment for a lease stipulating that the tenant should pay a cer- tain sum for rent, and also the rent charge, might be en- forced by means of a lease reserving as rent the two sums which in the agreement were treated respectively as rent and rent charge." And the court will be likely to pursue a similar course in relation to a contract which, though originally lawful, has become unlawful in part by subsequent legislation. Accordingly, where a dean and chapter, pre- vious to the disabling statute of 13 Eliz., covenanted for the renewal of a lease for ninety-nine years, and a suit was brought for a renewal for such term as the corporation could grant under the statute, it was held that the plaintiff was entitled to the relief prayed.' ' Frederick v. Coxwell, 3 Y. & J., 514. A railroad company agreed with A. for the sale of land required for its proposed line, he to withdraw his opposition, in consideration of twenty thousand pounds to be paid to him, in case the bill should become a law. There being a rival company which would require dif- ferent land of A., the two companies agreed while the matter was before the committee of the House of Commons, that there should be a reference to deter- mine which of the two lines should be constructed, and that the successful com- pany should assume all the engagements of the other. The line of the second company having been approved, and a bill for specific performance filed by A., the defendant demurred on the ground that the payment of the twenty thousand pounds was conditional on the first-named company obtaining the passage of an act, and that the land required was not the same contracted for, but the demur- rer was overruled. Stanley v. Chester & Birkenhead R.R. Co., 9 Sim., 264; S. C. 3, My. & Cr., 773. In a subsequent case, however, it was held that the passing of the bill of an amalgamated company, was not a ground for enforcing specific performance of an agreement which was to be binding if the bill of one of the companies passed. Greenhalgh v. Manchester & Birmingham R.R. Co., 9 Sim., 416; S. C. 3, My. & Cr., 784, affg. the decree, but on a different ground. See Earl of Lindsey v. Gt. Northern R.R. Co., 10 Hare, 664. * Carolan v. Brabazon, 3 J. & L., 200. * Bettesworth v. Dean and Chapter of St. Paul, Sel. Cas. in Ch., 66. §§ 130, 131. INABILITY TO PERFORM. 167 § 130. Partial disability, — Where the subject matter of the contract is divisible, and the disability of the defendant relates only to a portion of it, specific performance may be decreed as to that which is capable of being executed. Within this principle, if, under a contract for the sale of land, the vendor has no title to a portion of the land, the vendee may compel specific performance of the contract, so far as the vendor can perform it, and insist upon an abate- ment of the price as to the residue/ § 131. Inability to perform, one of two alternatives. — If a contract be, on the face of it, in the alternative, so as apparently to give the party an election, and one of the alternatives, at the time the agreement is made, is impossible or void, the right of election does not exist, and the party is bound to perform the other alternative/ Thus, where a bond was entered into for the payment of a certain sum, or the rendering in execution of a person who had pre- viously been discharged, it was held that, as the latter al- ternative was illegal and void, the obligor must perform the other ; and that, as he had not done it, the bond was for- feited/ So, where an award directed that a sum of money should be paid or secured, but did not state what security was to be given, and a question arose whether the award was void for uncertainty, it was held that it was not, for the reason that if an award is in the alternative, and one of the alternatives is void or impossible, the party is bound to perform the other/ It was laid down in an early case, that ^ Rankin v. Maxwell, 2 A. K. Marsh, 488 ; Weatherford v. James, 2 Ala., 170; Jacobs V. Sale, 2 Ired. Eq., 286; Henry v. Liles, lb., 407; Wright v. Young, 6 Wis., 127; Collins v. Smith, i Head. Tenn., 251 ; Bell v. Thompson, 34 Ala., 633 ; Ketchum v. Stout, 20 Ohio, 453 ; Covell v. Cole, 16 Mich., 223 ; Marshall V. Caldwell, 41 Cal., 611; post, §505. Where several joint owners contracted with a person for the sale of land, and the purchaser brought a suit for specific performance against all of them, in which he failed to establish his claim to the whole of the land because the contract was not binding upon some of the owners, it was held that he was entitled to recover such portion of the land as was owned by those upon whom the contract was binding. Meek v. Walthall, 20 Ark., 648. " Wigley V Blacwal, Cro. Eliz., 780. ^ Da Costa v. Davis, i B. & P., 242. * Simmonds v. Swaine, i Taunt., 549. 1 68 INCAPACITY OF PARTY. § IS^^- " Where the condition of a bond consists of two parts in the disjunctive, and both are possible at the time of the bond made, and afterward one of them becomes impossi- ble by the act of God, the obligor is not bound to perform the other part.'" This staterrient of the principle is not, however, quite correct. For, although the thing agreed to be done cannot be literally carried out, in consequence of the death of a party, yet if it can be performed in sub- stance, and that is consonant with the intention of the par- ties, it may be enforced. Thus, a father having agreed, on the marriage of his daughter, to leave to her, at his death, an equal portion with his other children, and the daughter having died in his lifetime, it was urged that he was there- by discharged from the agreement by act of God. But a demurrer to a bill by the husband, praying for an equal share in the father's residuary estate, was overruled; the vice-chancellor remarking that the agreement might have been performed in either of two ways : by the father mak- ing provision for his daughter by will, or by his dying in- testate ; and that though the death of the daughter pre- vented him from performing it in the first way, he was not thereby released from performing it in the second.' Where 1 Laughter's Case, 5 Co. Rep., 21 B. ; S. C. Eaton's Case, Moore, 357 ; Eaton V. Laughter, Cro. Eliz., 398. See Warner v. White, T. Jon., 95. A father, on the marriage of his daughter, covenanted that by some act mier vivos, or by will, he would make provision for his daughter. Nothing, however, was done by the covenantor for his daughter, who died in his lifetime. The court of com- mon pleas, on a case stated for its opinion by direction of Vice-Chancellor Wigram, held that the covenantee had no cause of action. " The vice-chancellor, though expressing an opinion that by this view the intention of the parties was disap- pointed, as the provision was intended to be absolute, and the mode of making it only intended to be left to the discretion of the covenantor, yet confirmed the certificate, and dismissed the bill with costs." Jones v. How, 7 Hare, 267 ; 9 C. B., I ; Fry on Specif. Perform., 299, 300. 2 Barkworth v. Young, 4 Drew, i. In this case, the vice-chancellor said that it was impossible to lay down any universal proposition, and that each case must depend upon the intention of the parties ; but that where the intention was clear that one of the parties should do a certain thing, and he had an option to do it in one or other of two modes, and one of those modes became impossible by the act of God, he was bound to perform it in the other mode ; and that in the case before the court, it was manifestly the intention of the parties that, in one way or other, the daughter should have an equal share of the testator's property. A similar view has been taken in actions at law. In Studholmes v. Mandell, i Ld. Raym., 279; Tr«by, C. J., referred to a decision where a person entered into a §131. INABILITY TO PERFORM. 1 69 the party seeking specific performance has, by his own act or default, rendered the performance of one of the alterna- tives impossible, thereby depriving the defendant of his right of election, and in effect nullifying the agreement, the other alternative is discharged.' This obviously just principle is acted on at law, as well as in equity. Thus, in debt on a bond conditioned for the delivery up, by the de- fendant to the plaintiff, of certain obligations entered into by the plaintiff to the defendant, or for the execution to the plaintiff of such release of them as should be devised by the plaintiff's counsel before Michaelmas, a plea that neither the plaintiff nor his counsel devised any release before Michaelmas, was sustained by the Queen's Bench, on the ground that when the obligee deprives the obligor of the power to perform one part, the law discharges him from the other.' If one of two alternatives cannot be performed solely in consequence of the act of a stranger, the other alternative must be performed : as if a person should give a bond to convey certain land to another, or to marry A. B. by a day named, and a stranger married A. B. before the day, the obligor must convey the land ; but not if the obli- gee married A. B. before the day, for then the other alterna- tive is discharged.' bond either to make a lease for the life of the obligee before a certain day, or to pay one hundred pounds, and the obligee having died before the day, the court of common pleas held that the obligor should pay the one hundred pounds. In another case, in an action on a bond conditioned to pay or to secure to the plain- tiff, or her children by William Ashe, her then intended husband, three thou- sand pounds within six months after the defendant should become Duke of Bol- ton, it was set up in defence, that William Ashe died childless, before the de- fendant became duke. But the plea was held bad, on the ground that it could never have been the intention of the parties that the money should not be paid to the plaintiff in case she should not have a child by William Ashe at the time the defendant became duke ; though if she then had a child, the defendant might have elected to whom to pay the money. Drummond v. Duke of Bol- ton, Say., 243. And see More v. Morecomb, Cro. Eliz., 864. • Com. Dig. Condition, K. I. '^ Grenningham v. Ewer, Cro. Eliz., 539. ^Ibid. CHAPTER II. NON-CONCLUSION OF CONTRACT. 132. Existence of contract an important subject of inquiry. 133. What essential to constitute a contract. 134. No liability incurred by mere proposition. 135. Requisites of acceptance. 136. Where acceptance changes terms of offer. 137. When offer and acceptance amount to agreement. 138. At what time agreement is complete. 139. Effect of representation influencing conduct of party. 140. Promise to entitle party to relief must have been positive. § 132. Existence of contract essential. — The defendant may insist that no definite and binding terms were arrived at by the parties, but that what transpired between them amounted to nothing final. This position, if sustained, will, of course, be fatal to the relief prayed. For if there has not been a reciprocal and mutual assent to what is sought to be enforced, the plaintiff can have no claim upon the interpo- sition of the court. It therefore becomes a subject of in- quiry, where the absence of any agreement is set up in defence, w^hether what has transpired amounts to a contract, or only to a negotiation looking to that end, but not result- ing in anything determinate. When the arrangement is reduced to a formal written instrument, which is signed by the parties, no difficulty can arise in judging of its character. But it may be otherwise, when the alleged agreement is sought to be derived from conversations or letters.' Unless it is entirely clear that a contract was concluded, specific ' " Care should be taken not to construe as an agreement, letters which the parties intended only as a preliminary negotiation. The question in such cases always is, Did they mean to contract by their correspondence, or were they only settling the terms of an agreement into which they proposed to enter after all its particulars were adjusted, which was then to be formally drawn up, and by which alone they designed to be bound ? " Foster, J., in Lyman v. Robinson, 14 Allen, 254. And see Brown v. N. Y. Centr. R.R. Co., 44 N. Y., 79. § 133. AN OFFER AND AN AGREEMENT. I7I performance will not be decreed ; but the court will leave the parties to their rights at law.' § 133. Distinctioji between ari offer and an agreement. — The principles governing this subject are extremely simple ; the only question being, whether, at the time of the alleged agreement, the minds of the parties had come together in actual assent. A contract capable of being specifically en- forced, may b^ made by a proposition, either verbal or written, on the part of one person, and the acceptance of it by the one to whom it is made ; but not by an acceptance by a third person to whom the offer was not made.'' It is scarcely necessary to say that there is an important distinc- tion between a memorandum of offer, which is the act of only one party, and a memorandum of agreement, which is the act of both. "In the case of an offer, the party signing it may at any time before acceptance retract. But if it be an agreement, though signed by one party alone, he cannot retract at his pleasure ; but all he can do is to call upon the other party to sign or rescind the agreement. A memorandum of agreement supposes that the two parties have verbally made an actual contract with each other ; and when the terms of such contract are reduced to writing and signed, that is sufficient to bind the party signing. But in the memorandum of an offer only, that assumes that there has been no actual contract between the parties.'" 1 Huddleston v. Briscoe, 11 Ves., 583 ; Stratford v. Bosworth, 2 V. & B., 341. Where a party agreed to accept the lease of a dwelling-house in London " to contain all usual covenants and provisoes," and the lease contained a covenant not to assign without the lessor's consent, it was held that it was not a " usual covenant," and that the agreement could not be enforced. Hampshire v. Wickens, L. R. 7, Ch. D. 555, disapproving Haines v. Burnett, 27 Beav., 500. As an agree- ment can only be constituted by the act of parties intending and consenting to contract, an arrangement which, though apparently formal and complete, is under- stood by the parties as a mere jest, is not binding. The term agreement is usually employed in a more restricted sense than contract ; the latter comprising every species of obligation whereby a person binds himself to do, or omit to do, some act, while the former is seldom used except in relation to contracts not under seal, and imports a reciprocity of obligation. This distinction is, however, practi- cally unimportant. See Wain v. Warlters, 5 East., 16 ; Saunders v. Wakefield, 4 B. & Aid., 595 ; Egerton v. Mathews, 6 East., 308. ''Meynell v. Surtees, 3 Sm. & Gif., loi, 117. ^ Kindersley v. C. in Warner v. Willington, 3 Drew, 523. And see Horsfall v. Garnett, W^eek. R., 1857-1858, 387. When instructions are given to a real estate 172 NON-CONCLUSION OF CONTRACT. § 1 34. § 1 34. Right to withdraw offer. — A party incurs no re- sponsibility by a mere proposition which is not accepted ; an offer in itself creating no mutuality and no ol)ligation.' The proposal may be withdrawn by the person making it, either expressly by a formal notice, or impliedly by some act inconsistent with it, without alleging any reason ; or it may be terminated by the party to whom it is made declin- ing it, or delaying for an unreasonable time to return a defi- nite answer. Where a person makes an offer for the pur- chase of land, which the owner of the land intends to accept, but does not do it, and the proposal is withdrawn, there is no contract." The offer may be withdrawn at any time before acceptance, notwithstanding it specifies a defi- nite period within which the other party may reply.' When the person to whom the proposition is made de- clines it, it will not be revived by a subsequent offer of acceptance ; such an act depriving the party of the right to avail himself of the original offer.' But either party, until withdrawal or acceptance, may, of course, vary or add to. the proposed stipulations. W^here the owner of an estate in an offer of sale proposed, among other conditions, the payment of fifteen hundred pounds by way of deposit, to agent to find a purchaser of land, and he is not instructed as to the conditions to be inserted in the contract, he is not authorized to sign a contract. Hamer V. Sharp, L. R. 19, Eq. 108. ' Thornbury v. Bevill, i Y. & C. C. C, 554 ; Tuct:er v. Wood, 12 Johns., 170 ; Bower v. Blessing, i Serg. & Rawle, 243 ; Canal Co. v. R.R. Co., 4 Gill & Johns., I. Pothier says : " A contract includes a concurrence of intention in two parties, one of whom promises something to the other, who, on his part, accepts such promise Now, as I cannot by the mere act of my own mind transfer to another a right in my goods without a concurrent intention on his part to accept them, neither can I by my promise confer a right against my person until the person to whom the promise is made has, by his acceptance of it, concurred in the intention of acquiring such right." Poth. on Ob. Pt. i, C. i, S. i. Art. 2. See Johnston v. Fessler, 7 Watts, 48 ; Eskridge v. Glover, 5 Stew. & Port., 264 ; McKinley v. Watkins, 13 111., 140 ; Cope v. Albinson, 16 Eng. L. & Eq., 476. - Warner v. Willington, supra. ' Routledge v. Grant, 4 Bing., 653 ; Cooke v. Oxley, 3 T. R., 653 ; Larmon v. Jordan, 56 III, 204 ; Mayer v. U. S., 5 Ct. of CL, 317 ; Boston & Maine R.R. v. Bartlett, 3 Cush., 224. ■" Hyde v. Wrench, 3 Beav., 334. Contra, Hodgson v. Hutchinson, 5 Vin. Abr., 522, PI. 34. A refusal to accept need not be proved ; it is sufficient that there is no evidence of acceptance. Corning v. Colt, 5 Wend., 253. §135- WHAT REQUIRED TO CONSTITUTE AN ACCEPTANCE. 1 73 which the other party objected, and the owner then re- quired that the agreement should be signed before a day named, which was not done, but an offer was subsequently made to sign the agreement and pay the deposit, it was held that there was no contract/ It may be denied that the alleged offer was really made. Where a person writes to the owner of land inquiring the price, the reply of the latter stating the price does not constitute a proposition to sell.' So, the construction of the offer may be the subject of controversy on the question of the conclusion or non- conclusion of a contract.' § 1 35. What reqitiredto constitute an acceptajice. — If there is a simple acceptance of an offer to purchase accompanied by a statement that the acceptor desires that the arrangement should be put into some formal terms, the mere reference to such a proposal will not prevent the court from enforcing the final agreement so arrived at.' The plaintiff wrote to the defendant's agent: " In reference to J.'s property on Fleet Street, I think eight hundred pounds for the lease, fixtures, ^ Honeyman v. Marryat, 21 Beav., 14 ; Affd. 6, House of Lds., 112. "^ Knight V. Cooley, 34 Iowa, 218. See Erwin v. Envin, 25 Ala., 236. ' In a suit for specific performance, the averments in the petition were, that the plaintiff, a married woman, occupying certain premises belonging to the defend- ant, made a written proposition to him to purchase the same, and to pay defend- ant's agent twenty-five hundred dollars therefor — fifteen hundred dollars to be paid in cash and the remaining one thousand dollars in one year, to be secured by a mortgage on the premises. The defendant replied that he would sell the property for three thousand dollars — fifteen hundred dollars to be paid to his agent immediately, and the balance to be paid in two yearly instalments of seven hundred and fifty dollars each, with a mortgage on the premises to secure such payments ; and that, if she accepted his offer, to inform him of the fact and he would send a deed or power of attorney to his agent, and authorize him to ar- range the whole affair. The plaintiff at once wrote back that she accepted the defendant's terms, and that she would pay to his agent the fifteen hundred dol- lars as soon as the deed was ready, and at the same time execute the mortgage. Held, overruling a demurrer to the petition, that the word " immediately " in the defendant's proposition simply meant that the first payment should be cash, to be made at the time the deed was delivered and mortgage executed. Bruner v. Wheaton, 46 Mo., 363. ^Crossley v. Maycock, L. R. 18, Eq. 180. Where the plaintiff stipulated in writing to take from the defendant the lease of a house for a term mentioned at a specified rent, " subject to the preparation and approval of a formal contract," it was held that, in the absence of any other contract, there was no final agree- ment of which specific performance could be decreed. Winn v. Bull, L. R. 7, Ch. D. 29. 174 NON-CONCLUSION OF CONTRACT. § I35. etc., is about what I should be willing to give. Possession to be given me within fourteen days from date. This offer is made subject to the conditions of the lease being modified to my solicitor's satisfaction." Soon afterward the agent wrote in reply : " We are instructed to accept your offer of eight hundred pounds for these premises, and have asked J.'s solicitor to prepare a contract." The modification required in the lease was obtained. It was held that the mere refer- ence to the preparation of an agreement, by which the terms agreed upon would be put into a more formal shape, did not prevent the two letters from constituting a complete contract' But an acceptance to be binding must be dis- tinct, unconditional, and not vary the terms of the offer, and be communicated to the other party without unreason- able delay." A moment's reflection will show that these requirements are reasonable, just, and fundamental. An am- biguous answer might be susceptible of different interpreta- tions, and require explanation, thereby leaving the negotia- tion open instead of terminating it ; and an acceptance with a qualification or condition would require the assent of the party making the offer. So the offer must be acted on promptly, if at all, that being implied from the nature of the transaction.' Where it appeared that although there had ' Bonnevvell v. Jenkins, L. R. 8, Ch. D. 70. A. wrote to B., offering to sell him property for thirty-seven thousand five hundred pounds, or a part of it tor less, and added a postscript reserving the right to remove the materials of a house. B. replied : " I beg to acknowledge the receipt of your letter stating that you are willing to accept thirty-seven thousand five hundred pounds for your land at N. 1 hereby accept your terms as above, and agree to pay you the said sum of thirty-seven thousand five hundred pounds for your land." It was held that this was an acceptance of the terms of A.'s letter, including the postscript. Hussey v. Hornepayne, L. R. 8, Ch. D. 670. ■' Thornbury v. Bevill, i Y. & C. C. C, 554 ; Eads v. Carandolet, 42 Mo., 113 ; Bruner v. Wheaton, supra; Bethel v. Hawkins, 21 La. An., 620; Wilson v. Clements, 3 Mass., i ; Peru v. Turner, 10 Me., 185 ; Johnston v. Fessler, 7 Watts, 48; Hazard v. New England Mar. Ins. Co., i Sumner, 218; Carr v. Duvall, 14 Pet., 'J^ ; Hartford & New Haven R.R. Co. v. Jackson, 24 Conn., 514 ; Solomon V. Webster, 4 Colorado, 353 ; Carter v. Shorter, 57 Ala., 253. ' " When I offer anything to a person, what I mean is, I will do that, if you choose lo assent to it ; meaning, although it is not so expressed, if you choose to assent to it in a reasonable time." Lord Cranworth in Meynell v. Surtees, i Jur. N. S., 737. In 1827 the defendant wrote to the plaintiff" that he had credited the account of the latter with two hundred and twenty pounds, in consideration of §135- WHAT REQUIRED TO CONSTITUTE AN ACCEPTANCE. 1 75 been a long correspondence between the parties, yet that there had never been in any part of it a distinct acquiescence on both sides in one and the same set of terms, it was de- creed that the bill should be dismissed unless the plaintiff accepted the terms of the defendant's original offer, which w^as done.' A. wrote to B. offering to sell him certain land. B. brought a suit against A., alleging an agreement in writing for the sale of the land, and A., in his answer, offered to sell the land. The decree was in the alternative, for a conveyance on the payment of the purchase money into the bank, or, in default, that the bill be dismissed. The money having been paid, a question arose between the heirs and devisees of B. as to the time the contract was con- cluded. It was held that the bill did not constitute an ac- ceptance so as to bind B., as he might have dismissed the bill ; that the decree did not, for it left an election to the plaintiff ; but that the payment of the money into the bank did, that being unequivocal.' A. having made a proposition to B. to take the lease of a farm, and having given B. the names of certain persons as references, the agents of B., by his direction, prepared and sent to A. a lease which they regarded as conforming to A.'s offer. It was held that this did not constitute an acceptance, for the reason that the act was ambiguous and conditional ; ambiguous, because the lease might have been forwarded to save time, and with- out any intention to relinquish the right to accept or reject A.'s offer ; and conditional, because the sending of the draft an agreement by the plaintiff to convey certain houses. The abstract was de- livered ; but there was no acceptance in writing by the plaintiff, who, however, five years subsequently brought a suit for specific performance. It appeared that in 1827 the defendant had broken off the negotiation, and that, two years later, both parties regarded it as abandoned ; but that the plaintiff had, in the mean- time, had the benefit of the credit of two hundred and twenty pounds. The bill was dismissed, on the ground that an offer to convert the negotiation into a con- tract must be acted on within a reasonable time. Williams v. Williams, 17 Beav., 213. ' Thomas v. Blackman, i Coll. C. C, 301. See Crane v. Roberts, 5 Me., 419 ; Eliason v. Henshaw, 4 Wheat., 225 ; Glaymaker v. Sawin, 4 lb., 369. ^ Gaskarth v. Lord Lowther, 12 Ves., 107 ; Fry on Specif Perform., 76, 77. 176 NON-CONCLUSION OF CONTJIACT. § 1 36. lease, if an acceptance, was upon condition that the defend- ant accepted the draft lease." § 136. Acceptance with qualificatioiu — A few examples will suffice to illustrate the very obvious proposition, that when the acceptance changes the terms of the offer, there is no contract : as where A. offered to purchase of B. the lease of a house, possession to be given on or before the twenty-fifth of July, and a definite answer within six weeks, and B. replied that he would sell on the terms proposed, and give possession on the first of August, and A. after- ward, and before the six weeks had expired, retracted his offer ;' or where the owner of land made the promoters of a railroad an offer for a right of w^ay for mineral traffic only, which was accepted for the purpose of constructing a rail- road for general traffic ;' or where the defendant made a proposition for a lease, and the plaintiff accepted the terms proposed, but offered an under-lease/ So, when a condi- tion is introduced in the acceptance, the proposed agree- ment is still in abeyance/ In a suit for the specific per- formance of a contract for the sale of land, it appeared that the defendants had written to the plaintiffs, offering to purchase, to which the plaintiffs repHed as follows: "We are in receipt of your note offering two pounds per yard for the plot of land, which offer we accept, and now hand you two copies of conditions of sale, which we have signed. We will thank you to sign same, and return one of the copies to us." The conditions of sale here referred to wxre very special. It was held that there was no final contract.' A. sent by telegram to B. an offer of twelve hundred pounds for the purchase of certain real estate. B. telegiaphed back : " Accept your offer of twelve hundred pounds subject to 1 Warner v. Willington, 3 Drew, 523. And see Horsfall v. Garnett, Week. R., 1857-1858, 387. * Routledge v. Grant, 4 Bing., 653. ' Meynell v. Surtees, 3 Sm. & Gif., loi, affd. i, Jur. N. S., 737. " Holland v. Eyre, 2 Sim. & Stu., 194. ^ Hall v. Hall, 12 Beav., 414. * Crossley v. Maycock, L. R. 18, Eq. 180. § 136. ACCEPTANCE WITH QUALIFICATION. I// letter and agreement, to be sent to your solicitor." A draft contract of sale was afterward furnished to the purchaser's solicitor, but, owing to a disagreement as to details, the negotiation was broken off by B. In a suit by A. for spe- cific performance, it was contended in his behalf that the words "subject to letter and agreement," simply meant that a formal contract for the carrying out of the agreement would be sent. But the court held that there was no con- cluded contract between the parties, and a demurrer to the bill was allowed with costs.' The defendant offered by letter to sell certain property to the plaintiff, which offer the plaintiff accepted by letter, subject to the title being approved "by my solicitor." Afterward the plaintiff wrote to say that he must abandon the purchase unless he was allowed to pay the money by instalments, to which the defendant assented. It was held on appeal that the words "subject to the title being approved by my solicitor," were not merely an expression of what would be implied by law, but constituted a new term ; that the plaintiff's letter was not therefore an acceptance, but a new offer which had never been accepted, and that there was no binding contract.'' A. made a proposition to B. stipulating, among other things, that a lease should contain all the covenants in the superior lease. B. signed the agreement, which was tendered, but with the qualification that there was nothing unusual in such superior lease. A draft of the proposed lease was then sent to B., who made some alterations in it, and re- quested A.'s solicitors to adopt them at once or to refuse the lease. The solicitors returned the lease, acquiescing in all the alterations except one, as to assigning without hcense. It was held that, up to this time, there was no contract, and that B. was at liberty to break off the nego- tiation.' And where a proposition was made to take an ' Brien v. Swainson, L. R. Jr. Ch. D., 135. ^ Hussey v. Hornepayne, L. R. 8, Ch. D. 670. ^ Lucas V. James, 7 Hare, 410. 12 178 NON-CONCLUSION OF CONTRACT. ' § ^37- allotment of railway shares, and a letter was sent back accepting the offer, but headed " not transferable," it was held that the new term thereby introduced, postponed the conclusion of the contract/ So, where the plair tiff wrote to the provisional committee of a railroad company for sixty shares, undertaking, in the form prescribed by the pros- pectus, to accept the same subject to the regulations of the company, and to pay the deposit thereon when required, and the committee wrote back that they had allotted the plaintiff sixty shares upon condition that the deposit was to be paid on or before a certain day, " in default of which the allotment would be forfeited," it was held that there was no contract, there not having been a simple acceptance of the plaintiff's proposal.* § 137. Acceptance when binding. — When the offer sub- mits the decision of some matter connected with the trans- action to the party to whom the offer is made, an accept- ance making the decision will constitute a contract : ' as where the offer leaves the day to be named by the other party, and he in accepting names the day ;* or the proposal and acceptance may leave the price or any other term to be ascertained in a way agreed.' A variation in the accept- ance which is nugatory will not affect the contract : as a mere expression of hope;' nor, as we ^ have seen, an allu- ' Duke V. Andrews, 2 Exch., 290. "^ Wontner v. Shairp, 4 C. B., 404. ' Boys V. Ayerst, 6 Mad., 316. * Walker v. Eastern Counties R.R. Co., 6 Hare, 594. ' Lucas V. James, supra. ' Clive V. Beaumont, i De G. & Sm., 397. And see Johnson v. King, 2 Bing-., 270. A. wrote to B., offering to purchase certain land of hinj, and stated how he could make the payments. B. replied accepting A.'s proposal, but said that he wished A. to take the responsibility of establishing the boundaries, and re- quested A.'s answer as soon as possible. A. wrote back that he would take the land, and would have the boundaries ascertained ; but desired that the agent of B. might attend to the fixing of the line on one side. Held that the contract of sale was complete. Fitzhugh v. Jones, 6 IMunf, 83. In another case, the de- fendant in a letter to the plaintiff's agent proposed to purchase a plantation at eight thousand dollars, six thousand dollars in cash, and two thousand dollars in January following, and requested an immediate answer. The agent, by return post, replied accepting the proposal, but added that he presumed the two thousand dollars were to bear interest from date. Held that there was a bind- ing contract, and that the suggestion in the letter of acceptance as to interest did not constitute a new term. Neufville v. Stuart, i Hill's S. S. C. Ch., 159. § 138. TIME OF CONCLUSION OF CONTRACT. 1 79 sion in the acceptance to the manner in which the contract is to be carried out : as by referring to a formal agreement which is to be drawn/ As a writing signed by the party to be charged is sufficient within the statute of frauds, it follows that where the offer embraces the whole of the pro- posed contract so that a simple assent is required, a parol acceptance may constitute an agreement binding on the party making the offer." So, where the proposition is made by the defendant, the plaintiff is not required to prove ac- ceptance, the filing of the bill being prima facie evidence of acceptance, capable of being rebutted by proof on the part of the defendant, that the treaty had previously been determined/ The acts of a person may be evidence of as- sent amounting to an acceptance which will bind the party making the offer/ But mentally concluding to accept an offer, without indicating such determination by word or act, will not constitute a contract/ An agreement may be consummated by an offer and acceptance by telegraph/ § 138. Time of conclusion of contract. — A question sometimes arises as to the time the negotiation culminates in a contract. The contract is complete w^hen the answer containing the acceptance of a distinct proposition is des- patched by mail, if it be done with due diligence after the receipt of the letter containing the proposal, and before any intimation is received that the offer is withdrawn.' ' Gibbins v. Northeastern Metrop. Dist. Asylum, 11 Beav., i ; Skinner v. M'Douall, 2 De G. & Sm., 265 ; atite, § 135. ° Boys V. Ayerst, supra ; Warner v. Willington, 3 Drew, 523 ; Coleman v. Upcot, 5 Yin. Abr., 527, PL 17 ; Palmer v. Scott, i R. & M., 391. Contra, Lane v. McLaughlin, 14 Minn., 72. Where an offer made by latter is verbally rejected, the writer of the letter is released from his offer, unless he consent to renew the negotiation. Sheffield Canal Co. v. Sheffield, etc., R.R. Co., 3 R.R. Cas., 121. ^ Boys V. Ayerst, 6 Mad., 316. ■* Parker v. Serjeant, Finch, 146. ' Frith V. Lawrence, i Paige, Ch., 434 ; White v. Corlies, 40 N. Y., 467. " Duble V. Batts, 38 Te.xas, 312; Wells v. Milwaukee, etc., R.R. Co., 30 Wis., 605. ' Adams v. Lindsell, i B. & A., 681 ; Mactier v. Frith, 6 Wend., 103 ; Levy v. Coke, 4 Ga., i ; Brisban v. Boyd, 4 Paige Ch., 17 ; Averill v. Hedge, 12 Conn., 424 ; Hamilton v. Lycoming Ins. Co., 5 Pa. St., 339 ; Abbott v. Shepard, 48 N. H., 14 ; Stockham v. Stockham, 32 Md., 196 ; Chicago, etc., R.R. Co. v. Dane, 43 N. Y., 240 ; Potts V. Whitehead, 20 N. J. Eq., 55 ; 2 Kent's Com., 9th Ed., 640. I So NON-CONCLUSION OF CONTRACT. § 1 38. The contract therefore dates from the posting, and not from the receipt of the letter of acceptance," An agree- ment to do a certain thing on demand is completed when the demand is made.' The communication of the accept- ance to the agent of the person making the offer is suffi- cient, although the agent does not make it known to his principal.' ' Potter V. Saunders, 6 Hare, i ; Busban v. Boyd, 4 Paige Ch., 17 ; Vassar v. Camp, 1 1 N. Y., 441 ; Clark v. Dales, 20 Barb., 42 ; Falls v. Gaither, 9 Porter, 605 ; Chiles v. Nelson, 7 Dana, 281 ; Levy v. Coke, 4 Ga., i ; Averill v. Hedge, 12 C onn., 424; Beckwith v. Cheever, 21 N. H., 41. Contra, McCuUoch v. Eagle Ins. Co., I Pick., 278 ; Thayer v. Middlesex Fire Ins. Co., 10 lb., 326 ; Gillespie V. Edmonston, 11 Humph., 553. In Mactier v. Frith, supra, the joint owner of a cargo of brandy in course of shipment from France wrote, on the 24th of De- cember, from St. Domingo, to the other owner in New York, proposing that the latter should take the cargo on his sole account ; to which he replied that he would reserve his decision until he again henrd from the party making the offer. On the 7th of March the owner in St. Domingo acknowledged the receipt of the answer to his letter, and on the 28th of the same month wrote again, reiterating the offer made in December. On the 25th of March the owner in New York, after the arrival of the brandy, wrote to the owner in St. Domingo that he had made up his mind to accept the offer, and that he had credited his correspond- ent with the invoice. It was held that the acceptance on the 25th of March completed the contract, although the letters of the 25th and 28th of March did not reach their destination until after the death of the owner in New York, which occurred on the loth of April. "The better opinion of jurists is," says Mr. Kent (2 Com., 477, note), "that as soon as an offer by letter is accepted the contract is complete, although the acceptance had not been communicated to the party by whom the offer was made, provided the party making the offer was alive when the offer was accepted." The case of McCulloch v. Eagle Ins. Co., supra, which is directly opposed to this view and to current authority, was sub- stantially as follows : The plaintiff having written to the defendants on the 27th of December, inquiring on what terms they would insure his vessel and cargo, the defendants on the ist of January wrote in reply that they would do so at a percentage named. The letter of the defendants was received by the plaintiff on the 3d of Januaiy, and on the same day he mailed a reply, asking the de- fendants to fill out a policy on the terms they had offered. Meanwhile, the de- fendants, on the 2d of January, had written to the plaintiff withdrawing their proposal ; but this letter was not received by the plaintiff until after he had mailed his letter of the 3d of January. The vessel having been lost, it was held that there w-as no insurance. Parker, C. J., who delivered the opinion of the court, said that " the offer did not bind the plaintiff until it was accepted, and it could not be accepted to the knowledge of the defendants until the letter an- nouncing the acceptance was received, or at most until the regular time for its arrival by mail had elapsed." ' Beatson v. Nicholson, 6 Jur., 620. " Wright v. Bigg, 1 5 Beav., 592. The owner of land having written a letter to his agent containing a proposition to sell the land to B., it was held that B. might send a written acceptance directly to the writer of the letter. And where B., after showing his reply to the agent, and telling him that he had accepted the proposition, sent the letter containing it by the agent to the post-office, it was held that the contract was complete from the time B.'s letter was delivered into the post-office. Br)'ant v. Boone, 55 Ga., 438. § 139- EFFECT OF REPRESENTATION. l8l § 139. When representation will constitute contract. — An offer and acceptance may consist of a promise or rep- resentation made by one party for the purpose of influenc- ing the conduct of the other party, and acts done by the latter on the faith of the same.' A representation may be of something past, present, or future. When a thing is falsely alleged to be an existing fact, and the person mak- ing the representation knows it to be false, or does not know that it is true, and another is thereby induced to act to his prejudice, the former will not be permitted to deny the alleged fact, either at law or in equity.' Accordingly, where a person, in a treaty of marriage with his daughter, told the suitor that a certain demand was not then existing, he was restrained by injunction from bringing an action to recover the demand.^ And where a father represented to a person who proposed to marry his daughter, that, after the death of her parents, she would be entitled to ten thousand pounds, when in fact it was only about half that sum, it was held the balance might be recovered from the father's estate.* Cases of the misrepresentation of facts as existing, or past, do not rest in contract, but are decided on the principle of preventing fraud, or on that of equita- ble estoppel. Where, however, a representation of some- thing to be done in the future is made for a special pur- pose, and another acts on the faith and in consequence of it, it constitutes a contract. " There is no middle term be- tween a representation so made, to be effective for such a purpose, and a contract ; they are identical." ' W^here a writing was signed by a lady, reciting that she intended to ' Hammersley v. Du Biel, 12 CI. & Fin., 62, note. See Ayliffe v. Tracy, 2 P. Wms., 64. * Montefiori v. Montefiori, i W. Blk., 364. See post, § 305. 'Neville v. Wilkinson, i Bro. C. C, 543. See Gale v. Lindo, i Vem., 475 ; Scott V. Scott, I Cox, 366 ; Gregg v. Wells, to A. & E., 90 ; Freeman v. Cooke, 2 Exch., 654 ; Howard v. Hudson, 2 Ell. & Bl., i ; Foster v. Mentor Life Ass. Co., 3 lb. 48. " Bold V. Hutchinson, 20 Beav., 250; Affd. 5 De G. M. & G., 558. See also, Jameson v. Stein, 21 lb., 5. ^ Lord Cranworth in Money v. Jorden, 2 De G. M. & G., 332. l82 NON-CONCLUSION OF CONTRACT. § I40. leave her granddaughter a certain sum to be secured by bond, and the contents of the writing were to be commu- nicated to the intended husband of the granddaughter, which was done, it was held to constitute a contract capable of being enforced ; the mention of the bond going to show that it was meant the proposal should be binding on the party making it.' So, where a father, in written pro- posals made in a treaty of marriage, expressed his intention to leave by will to his daughter, ten thousand pounds, to be settled on her and her children, and that the will would di- rect what disposition should be made of the bequest in case she died without issue, it was held to create an obligation ; that although the proposals were made subject to revision, yet that that power was determined by their acceptance by the intended husband, and his marriage with the father's consent/ § 1 40. Promise to be binding must have been ttnequivocal. — In concluding this head, it is scarcely necessary to say, that to entitle a person who has acted on the faith of another's representations, to relief on the ground of contract, the alleged promise on which he relied must have been distinct and absolute. The mere expression of what the party may probably do is not sufficient, as it leaves the matter open for further consideration and change of purpose. Where a father, after stating that he should not enter into a settle- ment, said that he would allow his daughter the interest on two thousand pounds, and that if she married he might bind himself to do it, and pay the principal at his decease, it w^as held not to amount to an agreement." So, when the person making the representation declines to enter into a contract, and insists that the other party shall rely on his word, as the arrangement is merely of an honorary nature, it cannot be enforced.' The following case was decided on ' Saunders v. Cramer, 3 Dr. & W., 87. * Du Biel V. Thompson, 3 Beav., 469 ; Affd. 12 CI. & Fin., 61, n. And see Montgomery v. Reilly, i Bli. N. S., 364 ; i Dow. N. S., 62. ' Randall v. Morgan, 12 Ves., 67. * Walpole v. Orford, 3 Ves., 402. § 140. PROMISE TO BE BINDING. 183 this principle : A. having given a bond to B. for the pay- ment of a sum of money, and being about to marry, B. told him she should never distress him about the bond, that she had given it up and should never enforce it. But on being asked to surrender the bond she declined to do so, saying that she would be trusted, and that A. might rely on her word. A suit having been brought on the bond by B. after A.'s marriage, he applied to the court for an injunc- tion. The representations of B. were at first held binding ; but on appeal, it was determined otherwise by a divided court' So, where a settlement not being ready, the mar- riage took place on the gentlem^i's assurance that the lady should have the same advantage as if the understanding were in writing duly executed, the court refused to inter- fere, the engagement being merely honorary.' And the same was held, where a landlord wrote to his tenant giving him a general assurance that if he acted to the satisfaction of the writer, the latter would deal honorably and hand- somely with him in regard to renewing his lease.' 1 Money v. Jorden, 15 Beav., 372 ; 2 De G. M. & G., 318 ; 5 House of l.ds., 185. And see Maunsell v. White, i John & L., 539 ; Affd. 4 H. of Lds., 1039. ^Viscountess Montacute v. Maxwell, i P. Wms., 618. ^ Price V. Asheton, i Y. & C. Ex., 441. A father having made his will, in which he left twelve thousand five hundred pounds to his daughter, wrote to a friend of his in India, to whom the daughter was sent, that if she married to suit him, her husband should have two thousand pounds on the marriage, and added : " Nor will that be all. She is and shall be noticed in my will ; but to what further amount I cannot precisely say, owing to the present reduced and reducing state of interest, which puts it out of my power to determine at present what I may have to dispose of." The substance of the foregoing was commu- nicated to the intended husband. The testator revoked his will, and made an- other, leaving out the legacy, and giving his daughter a residuary and contin- gent interest. It was held that there was no contract. Morehouse v. Colvin, 15 Beav., 341. CHAPTER III. INCOMPLETENESS, UNCERTAINTY, AND UNFAIRNESS OF CONTRACT. 41. Incomplete contract incapable of being specifically enforced. 42. Exceptions to rule as to incompleteness of contract. 43. Contract incomplete as to time. 44. Definiteness required as to subject matter. 45. Names of parties essential. 46. Price must be stated. 47. Materiality of mode agreed osi, § 502. ■* Champion v. Plummer, i N. R., 253 ; Warner v. Willington, 3 Drew, 523 ; Squire v. Whitton, i House of Lds., 333 ; post, § 155 ; see Smith v. Wheatcroft, L. R. 9, Ch. D. 223. ipO INCOMPLETENESS, ETC., OF CONTRACT. §§ 1 46, 1 47. On a sale of real estate at auction, the particulars and con- ditions of sale did not disclose the vendor's name, but stated that B, was the auctioneer. The purchaser of one of the lots signed a memorandum acknowledging his purchase, and B. signed at the foot of the memorandum the follow- ing, "Confirmed on behalf of the vendor." It was held that, as the memorandum did not sufficiently show who the vendor was, a suit for the specific performance of the contract of sale must be dismissed.' § 146. Uncertainty as to consideration. — In every con- tract of sale the price is essential ; and if it is neither ex- pressed nor capable of ascertainment, the contract cannot be enforced by reason of its incompleteness ; ' as, where a person agrees to sell land to another for a certain sum less than any one else will give, it being impossible to tell what that would be." Where the only memorandum of an agreement for the sale of land was a receipt for part of the purchase money, in which the lot was defined, but the price and other terms of the sale not stated, it was held in- sufficient to entitle the vendee to a specific performance.* So, specific performance was refused where it was agreed that the price should be fixed by arbitrators, but their award did not do it with clearness.' And where an award was based on an erroneous view of the facts, and was such as the court could not act on by reason of the improper conduct of one of the arbitrators, it was held that the suit could not be maintained.* § 147. Lnportance of manner of fixing price. — Although ' Potter V. Duffield, L. R. 18, Eq. 4. But it has been held that property may be put up for sale at auction in behalf of "the proprietor," and that it is suffi- cient if the owner's name is disclosed when the bill is filed for specific perform- ance. Beer v. London & Paris Hotel Co., L. R. 20, Eq. 412 ; and see Rossiter V. Miller, L. R. 5, Ch. D. 648 ; Sale v. Lambert, L. R. 18, Eq. i. ^ Elmore v. Kin^scote, 5 B. & C, 583 ; Goodman v. Griffiths, 26 L. J. Exch., 145 ; Spangler v. Danforth, 65 111., 152 ; Huff v. Shepard, 58 Mo., 242 ; Mastin V. Halley, 61 lb., 196; Grace v. Denison, 114 Mass., 116. ' Bromley v. Jefferies, 2 Vem., 415. * Soles v. Hickman, 20 Pa. St., 180. * Hopcraft v. Hickman, 2 Sim. & Stu., 130. " Chichester v. Mclntyre, 4 Bli. N. S., 79. § 147- IMPORTANCE OF MANNER OF FIXING PRICE. I9I it is competent for the parties to the contract to agree on a mode of thereafter fixing the price, yet, until the price is determined, the contract will not be enforced/ Accord- ingly, where the parties to an agreement for the sale of land left the price to be afterward ascertained and fixed by them, and one of them died before the price had been fixed, it was held that the agreement was too incomplete to sustain a bill for specific performance/ The method of ascertaining the price may be material : as that it be deter- mined by arbitrators ; in which case, if this be not done, the contract continues incomplete, and consequently inca- pable of enforcement' Were it not so, a substantial part of the agreement would be changed by the court, and, in fact, a different one made from that entered into by the parties, which would be wholly inadmissible." In accord- ' Darby v. Whitaker, 4 Drew, 134. ^ Graham v. Call, 5 Munf., 396. ^ Norfleet v. Southall, 3 Murphy, 189. "A man who agreed to sell at a price to be named by A., B., and C, could not be compelled by a court of equity to sell at any other price." Sir J. Leach in Morse v. Merest, 6 Mad., 26. * A court of equity cannot change a contract and then enforce it. Valetti v. White Water Canal Co., 4 McLean, 192; Cassady v. Woodbury, 13 Iowa, 113 ; Haskell v. Allen, 23 Me., 448; Grey v. Tubbs, 43 Cal., 359; Phila., etc., R.R. Co. V. Lehigh, etc., Co., 36 I'a. St., 204. The following are a few of the numer- ous examples of this very obvious principle : A. agreed to convey to B. a large tract of land on payment of the purchase money. B. went into possession of the land, and continued in possession twelve years, and paid a small portion of the purchase money. The court refused to decree a conveyance of a propor- tionate quantity of the tract of land, which would be injured by such division. Prater v. Miller, 3 Hawks N. C, 628. Where the heirs of a vendee who had a contract for land, and had paid the whole price, sold and conveyed a portion of the land, it was held that their grantee could not maintain a bill against the heirs of the vendor to compel them to execute a conveyance of the part sold, for the reason that such a bill asked the court to make a new contract for the parties. Lord v. Underdunck, i Sandf. Ch., 46. In v. Walford, 4 Russ., 372, A. had contracted with B. to convey to him an estate, and before the conveyance B. resold it to C, and A. signed a writing with B. agreeing to convey to C, at B.'s request. C. then agreed to convey the estate to W., who gave notice of that agreement to A., and required him to convey the estate to W. In consequence of this. A., when requested by B. to convey the estate to C, refused. B. then filed a bill against A. to compel him to convey to C. It was held that W. was not a necessary party ; that A. should have conveyed to C, and that A. must pay the costs of the suit. A. contracted to remove a bank of earth and gravel from B.'s land, agreeing not to pass over B.'s land, and to pay one dollar for each square removed. Before the work was completed, C, over whose land it was necessary to pass, revoked his license to A., and B. offered to permit the agents of A. to carry the gravel over his land ; but this would be very expensive. As an acceptance of B.'s offer would constitute a new contract, and if B. had sustained any damage by the non-completion of the 192 INCOMPLETENESS, ETC., OF CONTRACT. § I47. ance with this principle, where it was agreed that property should be sold at a price to be fixed by valuers, one to be appointed on each side, or by their umpire, and the valuers were unable to agree, it was held that the court could not supply the defect by appointing other valuers.' And where a husband entered into an agreement to set aside a certain amount of his property for the maintenance of his wife, to be selected by her, and valued by two designated persons, contract, he had a remedy at law, specific performance was refused. Sears v. City of Boston, 16 Pick., 357. Where a husband and wife brought a suit for the specific performance of a parol contract to convey land to the wife, and the evidence showed that the agreement was to convey to the husband, it was held that the bill must be dismissed, though the proof showed that the husband afterward directed the conveyance to be made to his w^ife, the other party assenting. Wilson v. Wilson, 6 Mich., 9. The plaintiff agreed to sell certain real estate to a railroad company for a sum to be paid on completion, with inter- est at four per cent, from the date of the agreement. The company was to be entitled to possession on making a given deposit. If, without fault of the vendor, the purchase was not completed in fix months, the interest from that time was to be at the rate of five per cent. The company paid the deposit, and took pos- session. More than four years having elapsed witliout completion by the com- pany, which upon being applied to alleged its inability, the plaintiff filed a bill for specific performance, and asked that he might be declared entitled, at his option, either to enforce the agreement, or to rescind it, and that in the latter case the deposit might be declared forfeited to the plaintiff, and that the com- pany might be ordered to deliver up possession of the land to him, and might be restrained by injunction from remaining in possession or using the land for the purposes of a railway. Held that the vendor could not claim any right be- yond what was given by the agreement, and as that provided for the payment of an increased rate of interest in case of delay, he was not entitled to an order on motion for the payment of the balance of the purchase money into court, but must go on to decree. J-'rj'se v. Cambrian R. R. Co., L. R. 2, Ch. 444. The defend- ant advanced money under a verbal agreement that an existing mortgage should be considered security for such advance. A court of equity refused to hold the land as security for the debt, or compel the execution of a proper mortgage ; a loan of money with the mere understanding that the land of the borrower is security for the debt not creating a mortgage, legal or equitable. Stoddart v. Hart, 23 N. Y., 556. " If A. should loan money to B., and take a bond, with the understanding that the farm of the latter should be considered a security, but with no intention or agreement to make a mortgage or writing of any sort, as the law requires in order to create a lien, none would be created in law or in equity. The transaction, in judgment of law, would amount simply to a loan upon the bond of the borrower. Such, I think, was the transaction in ques- tion." Ibid., per Comstock, Ch. J. Equity will not ordinarily enforce a con- tract into which new terms are to be introduced by parol evidence ; as courts of equity deem the writing to be higher proof of the real intention of the parties than parol proof can generally be, independently of the objection which arises under the statute of frauds. Whitaker v. Van Schoiack, 5 Oregon, 113 ; Heth V. Woodridge, 6 Rand, 605 ; Hancock v. Edwards, 7 Humph., 349. ' Milnes v. Gery, 14 Yes., 400. And see Blundell v. Brettargh, 17 lb., 232 ; Agar V. xMacklew, 2 S. & S., 418 ; Frith v. Midland R.R. Co., L. R. 20, Eq. 100; Norfleet v. Southall, 3 Murphy, 189; Graham v. Call, 5 Munf., 396; Baker v. Glass, 6 lb., 212. § 148. Wnp:N PRICE ASCERTAINED BY COURT. 1 93 it was held that a court of equity had no power to select other appraisers and enforce performance of the agreement without the consent of the husband.' So, where it was stipulated that the price should be determined in one of two specified ways, and no election as to the mode of as- certainment was made, it was held that there was no con- tract/ The difficulty will not be obviated, notwithstanding the price has not been fixed in consequence of the defend- ant's default. Thus, where the contract was to sell at a price to be determined by arbitrators, and the defendant having refused to execute an arbitration bond, it was doubt- ful whether any award would be made, the court declined to interfere ; ' and it did the same where the refusal of one of the valuers to proceed was said to have been caused by his being told by the defendant that he did not intend to complete." § 148. When price ascertained by court. — When the mode agreed upon for fixing the price is not of the essence of the contract, but the agreement is substantially for a sale at a fair price, upon a failure to determine the amount, the court looking to the substance rather than to the form of the contract, will adopt some other means of arriving at the price, and of thus carrying out the agreement in its essential features.^ It was said in one case, that where pos- session and expenditure were referable to an agreement to give a fair consideration, the court would "endeavor, by ' Willingsford v. Willingsford, 6 Har. & Johns., 485. ^ Morgan v. Milman, 3 De G. M. & G., 24. ^ Wilks V. Davis, 3 Mer., 507. * Darbey v. Whitaker, 4 Drew, 134. " Smith V. Peters, L. R. 20, Eq. 511; Whitlock v. Duffield, i Hoffm. Ch., 1 10 ; Vandoren V. Robinson, 16 N. J. Eq., no. "Lord Eldon, in Cooth v. Jackson, 6 Ves., 34, seems to have doubted whether the court would ever take upon it- self, in this respect, to separate the essential from the non-essential terms of the contract. He considered that when a reference had been made to arbitration, and the judgment of the arbitrators was not given in time and manner accord- ing to the agreement, the court had no jurisdiction to substitute itself for the arbitrators, and make the award, even where the substantial thing to be done was agreed upon between the parties, and the time and manner in which it was to be done was that which they had put upon others to execute." Fry on Specif. Perform., 96 ; and see Blundell v. Brettargh, 17 Ves., 232. 13 194 INCOMPLETENESS, ETC., OF CONTRACT. § 1 49. every means within the legitimate bounds of its jurisdiction, to ascertain the amount of the consideration.'" In a suit on a contract for the sale of land and bleach works at a sum specified, the plant and machinery to be taken at a price to be fixed l)y valuers, it was held that as the latter was a- subsidiary stipulation, the price might be ascertained in another way, which, having been done, specific perform- ance was decreed.' So, where a contract to grant a lease provided that the lease should contain such contingencies as a certain person should deem reasonable and proper, the settlement of the lease was referred to a master, the agency of the person named not being regarded as of the essence of the contract, and the court holding that it would not grant relief through the medium of a reference compulsory on the other party.' An obstacle to the ascertainment of the price in the mode agreed, may be interposed by the un- expected disabling of one of the parties ; and where this is the case, equity will not withhold relief. Where the vendor having become insane, the valuers could not be nominated, it was held not to be an insurmountable obstacle to relief ; the court remarking that " if there was a valid and binding contract, the supervening incapacity of one party cannot deprive the other of the benefit."' § 149. Material omissions from contract. — It is impossi- ble to enumerate all of the terms which ought to be em- braced in every contract. Whether or not an alleged ' Meynell v. Surtees, 3 Sm. & Gif., loi, 113, per Vice-Chancellor Sir. J. Stuart ; affcl. i Jur. N. S., 737. '''Jackson v. Jackson, i Sm. & Gif., 184; and see Paris Chocolate Co. v. Crystal Palace Co., 3 lb., 119, 123. ■* Gourlay v. Duke of Somerset, 19 Ves., 429. Contracts will not be specifi- cally enforced, the essential terms of which are subject to the approval of third persons. "There is no instance of a plaintiff seeking the interposition of the court and obtaining it, who has been held entitled to have any part of his relief administered to him through the medium of a reference compulsory on the other party. A bill seeking that, would b& p>-o tanio, a bill to enforce the specific per- formance of an agreement to refer to arbitration ; a species of bill that has never been entertained." Ibid, approved in South Wales R.R. v. VVythes, 5 De G. M. & G., 880. * Hall v. Warren, 9 Ves., 605. § 150. PRESUMPTION AS TO OMITTED TERMS. I95 agreement contains ev^eiy material term, and every detail requisite to constitute a complete contract, will of course depend upon the circumstances of each case. Although the terms of the agreement are general, yet it will be en- forced if the law supplies the details ; but not if details are omitted which the court cannot adopt.' The following omissions were held to render the contract incomplete : The date at which a lease was to commence ; '' the time when an increased rent was to begin ; ' the length of the term to be granted ; ' an agreement for a lease of mines which did not define the mineral area ; ' a contract for a lease for lives, which neither named the lives, nor provided for their being named ; ' silence in a contract for a partner- ship as to the amount of capital, and the manner in which it was to be furnished ; ' leaving unsettled, a term as to the expenses ; * where an auctioneer's receipt, set up as a con- tract, did not refer to the conditions of sale, or show the proportion which the deposit was to bear to the price." § 150. Presimtptioii as to omitted terms. — The silence of an agreement as to terms which may be implied by legal presumption does not render it incomplete.'" If a person accepts a contract by which he is to be benefited when he shall have done a certain thing on or before a certain day, ■South Wales R.R. Co. v. W^ythes, 5 De G. M. & G., 888; Ridgway v. Whaiton, 6 House of Lds., 285. See Nichols v. Williams, 22 N. J. Eq., 63 ; Tiernan v. Gibney, 24 Wis., 190; Clark v. Clark, 49 Cal., 586; Riley v. Farns- worth, 116 Mass., 223; Pickett v. Merchants' National Bank, 32 Ark., 346. ^Blore V. Sutton, 3 Mer., 237. And see Cox v. Middleton, 2 Drew, 209 ; Hersey v. Giblett, 18 Beav., 174. ^ Lord Ormond v. Anderson, 2 Ba. & Be., 363. * Clinan v. Cooke, i Sch. & Lef., 22 ; Gordon v. Trevelyan, i Price, 64 ; Mey- ers V. Foibes, 24 Md., 595. ^Lancaster v. De Trafford, 31 L. J. C, 554. "Wheeler v. D'Esterre, 2 Dow., 359. '' Downs v. Collins, 6 Hare, 41.8. "Stratford v. Bosworth, 2 V. & B., 341. ' Blagden v. Bradbear, 12 Ves., 466. ^" It has been held that " as a general rule, between vendor and purchaser, the latter must admit as presumptions, all matters which, in a court of law, the judge would clearly direct the jury to presume ; but not matters as to which the judge would leave it to the jury to pronounce upon the effect of the evidence." Dart's V. & P., 162; Emery v. Grocock, 6 Mad., 54; Hillary v. Waller, 12 Ves., 239. 196 INCOMPLETENESS, ETC., OF CONTRACT. § 1 5O. such acceptance amounts to an agreement on his part to perform the act by the time named.' An agreement to sell land, is, in the absence of anything expressed to the contrary, an a^jreement to sell the whole of the vendor's interest therein;' and such interest, if not specified, will be presumed to be an estate in fee simple.' In the ab- sence of any restrictive expressions, the interest contracted to be sold will be accompanied by all the advantages which are legally incidental to it." In a contract for an under- lease it is implied that the lessee is to be subject to the covenants in the superior lease.' When, however, a head lease contains unusual covenants of which the sub-lessee had no notice, and he has not taken possession of the property, it is doubtful whether the court would decree specific per- ' Roberts v. Marston, 20 Me., 275. ^ Bower v. Cooper, 2 Hare, 408. ' Sug. V. & P., 339 ; Hughes v. Parker, 8 M. & W., 244 ; Cattel v. Corral], 4 Y. & C. Ex., 228, 236. Where the agreement does not call for a deed with full covenants, the vendee is only entitled to a good and sufficient deed to convey the title in fee simple. Lounsberry v. Locander, 25 N. J. Eq., 554; Thayer v. Torrey, 37 N. J. Law, 339. * Pope V. Garland, 4 Y. & C. Ex., 403. In New York, it is provided by statute that " ever)' grant or devise of real estate, or any interest therein, hereafter to be executed, shall pass all the estate or interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of such grant." N. Y. Rev. Sts., 6th Ed., Vol. 2, p. 1 1 30. "No covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not." lb., p. 30. In several of the States it is provided by statute, that the words grant, bargain, and sale in a conveyance in fee, shall, unless specially restrained, amount to a covenant that the grantor was seized of an estate in fee freed from incumbrances, and for quiet enjoyment as against his acts. In Frost v. Raymond, 2 Caines, N. Y., 188, It was held that the words " grant, bargain, sell, alien, and confirm," did not imply a covenant of title in a conveyance in fee; that the word "grant," or the word " demise," implied a covenant of title in a lease for years ; and that the word "give " amounted to an implied warranty during the life of the feoffor. But this decision, though sound at common law, is no longer authority in New York, under the provision in the revised statutes. The conveyance of a dwelling-house will pass other erections so connected with it as to constitute one building. Hilton v. G'lman, 17 Me., 263 ; and where land is conveyed with the appurtenances, all buildings pass which are attached to, or connected with, the house, and the close in which the house stands. A grant of woods passes the land so far as it is necessary for the support of the trees. Clap v. Draper, 5 Mass., 268. The term "tenement" signifies what- ever of a permanent nature is capable of being holden, whether corporeal or in- corporeal. The conveyance of the whole carries all its parts, as v.-ell at law as in equity, though some of them were not contemplated by the parties. And a deed of all a person's share and interest passes reversionary, as well as the present estate. Sowle v. Sowle, 10 Pick., 376. 'Cosser v. Collinge, 3 My. & K., 283 ; Smith v. Capron, 7 Hare, 185. § T5I. CONDITION REBUTTED OR WAIVED. 1 97 formance ; ' but otherwise, if the sub-lessee took possession with constructive notice of the covenants." In every con- tract for the sale of real estate, there is an implied under- taking to furnish a good title, unless such an obligation is expressly excluded by the terms of the agreement.' The title to be shown will depend upon the property conveyed.* The sale of a lease includes the title of the lessor ; ' and an agreement to renew is presumed to be for the same term as the preceding lease." Where there is a sale of real estate, and the conditions of the sale have been fully performed on the part of the purchaser, it will be presumed that the vendor undertook to make such conveyance as will render the sale effectual.'' § 151. Condition rebutted or waived. — There can only be a term by legal presumption in the absence of an express provision in relation to the same matter.* The language of the contract may therefore negative the existence of a con- dition which would otherwise be implied ; as where it limits the title to be made, or provides that the purchaser shall merely take the vendor's interest." So, an implied term 1 See Flight v. Barton, 3 My. & K., 282. * Cesser v. Collinge, supra. Whether there is a presumption that an execu- tory contract shall contain all the stipulations usually inserted in such contracts, query. Ricketts v. Bell, i De G. & Sm., 335. * Doe D. Gray v. Stanion, i M. & W., 695, 701 ; Worthington v. Warrington, 5 C. B., 635; Holland v. Holmes, 14 Fla., 390. It devolves on the vendee, if he questions the title, to show the defect. Brown v. Bellows, 4 Pick., 179; Breithaupt v. Thurmond, 3 Rich., 216; Dwight v. Cutler, 3 Mich., 566. * Curling v. Flight, 6 Hare, 41 ; S. C. 2 Phil., 613. An agreement or cove- nant to convey a good title, does not necessarily entitle the covenantee to a war- rantee deed ; the right of property and of exclusive possession, which consti- tutes a good title, being effectually vested in him by a deed of quit claim. Gazley v. Price, 16 Johns., 267 ; Potter v. Tuttle, 22 Conn., 512 ; Kyle v. Kav- anaugh, 103 Mass., 356. Contra, Hoback v. Kilgores, 26 Gratt., 442. Where real estate is sold and title bond given, the vendee is liable for tax assessments on the land subsequent to the sale. Hall v. Denckia, 28 Ark., 506. ^Fildes V. Hooker, 2 Mer., 424 ; Souter v. Drake, 5 B. & Ad., 992 ; Hall v. Betty, 4 Man. & Gr., 410. See Boyd v. Schlessinger, 59 N. Y., 301. As to an agreement for the sale of a contract I'or a lease, see Kintrea v. Preston, 25 L. J. Exch., 287. * Price V. Assheton, i Y. & C. £x„ 82. ' Hoffman v. Fett, 39 Cal., 109. * Galloway v. Holmes, i Doug. Mich., 330. ® Freme v. Wright, 4 Mad., 364. 198 IN'COMPLETENESS, ETC., OF CONTRACT. § 1 52. may 1)0 rebutted by notice' Where, for instance, a pur- chaser, at the time, or previous to entering into the contract, has notice that his vendor is only a lessee, he cannot insist that he contracted in fee.' So, although the contract be silent in respect to time, either party may, by proper notice, bind the other to complete within a reasonable specified period.' And time, although originally of the essence of the contract, or afterward made imperative in equity by notice may be enlarged or waived by subsequent agreement, or by the acts of the parties. Thus, if the purchaser go on with the purchase after the time fixed by the contract or by his notice has expired, it is a waiver.' So, where a pur- chaser did not demand possession until a late hour at night on the day fixed for completion, and the property consisted of cottages let to w^eekly tenants, it was held at law to amount to a waiver of the condition as to time.' § 152. Iiiiporta7ice of certainty as to what zoas agreed. — A contract, to be capable of specific enforcement, must be so certain as not likely to be misunderstood by either party, and its terms be established by satisfactory proof. The certainty required for the specific performance of a contract for the sale of land, has reference both to the description of ' Ogilvie V. Foljambe, 3 Men, 53, 64. - Cowiej' v. Watts, 17 Jur., 172. ' Stewart v. Smith, 6 Hare, 222, note. Time may be implied from the nature or condition of the subject matter. McKay v. Carrington, i McLean, 59; Hoyt v. Tuxbury, 70 III., 391. Where it appears that the parties have contracted that time shall be essential in a contract of purchase, a court of equity will not disre- gard the contract in order to give effect to some vague surmise that all the ven- dor intended to secure by the contract was the payment of the purchase money, with interest, at some indefinite time. Grey v. Tubbs, 43 Cal., 359. Spt-'cific performance of a contract to give a mortgage may be enforced, although no time is limited for the payment of the mortgage. Friebert v. Burgess, 11 Md., 452 ; Farrell v. Bean, 10 lb., 233. * King V. Wilson, 6 Beav., 124. See Gardner ex parte, 4 Y. & C. Ex., 503 ; post, § 482. ' Palmer v. Temple, i P. & D., 379. The question of waiver is one of fact, i Sug. V. & P., 8th Ed., 517; Burroughs v. Oakley, 3 Swanst., 159; Paige v. Greeley, 75 111., 401. A contract has been said to consist of three classes of ele- ments : 1st, those things which are essential, without which the contract cannot exist ; 2d, those which are of the nature, but not of the essence, of the contract, being implied in it unless expressly excluded, but capable of being thus excluded without subverting the contract ; and 3d, the things that are accidental. § 152. IMPORTANCE OF CERTAINTY. 1 99 the property and the estate to he conveyed." Although a contract may contain a full recital of everything to which the parties agreed, yet it may be so ambiguous as to one or more of its material terms, as to fail to express the inten- tion of the parties with requisite precision. If there be strong doubt whether both parties to a contract understood it alike, the court will not decree specific performance." It ' O'Brien v. Pentz, 48 Md., 562 ; Shriver v. Seiss, 49 lb., 384 ; Shakspeare v. Markham, 10 Hun., 311 ; Cox v. Cox, 59 Ala., 591 ; ante, § 144. The court gives specific performance instead of damages only when it can by that means do more perfect and complete justice. An agreement which is not so definite in its terms or in its nature as to make it certain that better justice will be done by attempting to enforce it than by leaving the parties to their remedy in damages, is not one which the court will specifically perfor"_T. Wilson v. Northampton & Banbury Junction R.R. Co., L. R. 9, Ch. 279. With reference to contracts which can be enforced, it is well settled that "every agreement of this kind ought to be certain, fair, and just in all its parts. If any ot these ingredients are wanting in the case, equity will not decree specific performance." Buxton v. Lister, 3 Atk., 386, per Lord Hardwicke. In an early case, Lord Rosslyn said : " I lay it down as a general proposition, to which I know no limitation, that all agreements, in order to be executed in this court, must be certain and defined ; 2dly, they must be equal, and fair ; for this court, unless they are fair, will not execute them ; and 3dly, they must be proved in such manner as the law requires." Lord Walpole v. Lord Orford, 3 Ves., 420. And see Underwood v. Hitchcox, i Ves. Sen., 279; Franks v. Martin, i Ed., 309; Stoddert v. Tuck, 5 Md., 37; Smith V. Crandall, 20 lb , 500 ; Worthington v. Semmes, 38 lb., 298 ; Reese v. Reese, 41 lb., 554. Clearness and certainty in a contract are obviously so im- portant and fundamental, it seems scarcely necessary to say very much on the subject, or to refer to many authorities. The following cases will give the student some idea of the manner in v/hich precision in agreements is regarded by the courts: Colson v. Thompson, 2 Wheat., 336; Carr v. Duval, 14 Pet., TT \ Ken- dall V. Almy, 2 Sumn., 278 ; Bowea v. Waters, 2 Paine, i ; Morrison v. Rossig- nol, 5 Cal, 64; Minturn v. Baylis, 33 Cal., 129; Miller v. Cotten, 5 Ga., 341 ; Fitzpatrick V. Beatty, 6 111. (Gilm.), 454; Burke v. Creditors, 9 La. An., 57; McMurtrie v. Bennette, Harr. Ch., Mich., 124; Montgomery v. Norris, 2 Miss. How., 499; Rockwell v. Lawrence, 6 N. J. Eq., 2 Halst., 190; Lockerson v. Stillwell, 13 N. J. Eq., 2 Beas., 357 ; Waters v. Brown, 7 J. J. Marsh, 123 ; Good- win V. Lyon, 4 Porter, Ala., 297 ; Madeira v. Hopkins, 12 B. Mon., 593 ; Graham V. Call, 5 Munf., 396 ; Aday v. Echols, 18 Ala., 353 ; Sheid v. Stamps, 2 Sneed, Tenn., 172 ; Agard v. Valencia, 39 Cal., 292 ; Talman v. Franklin, 3 Duer, 395 ; Lobdell v. Lobdell, 36 N. Y., 327 ; Wiswell v. Teft, 5 Kans., 263 ; Long v. Dun- can, 10 lb, 294; Johnson v. Johnson, 16 Minn., 512; Hardesty v. Ric!nrdson, 44 Md., 617; Hycle V. Cooper, 13 Rich. Eq., 250 ; McKibbin v. Brow ■, 14 N. J. Eq., 13; Welsh v. Bayud, 21 lb., 186; Huff v. Shepard, 58 Mo., 242 ; Roundtree V. McLean, Hempst., 2.15 ; Lloyd v. Wheatley, 2 Jones, 267; DuvaU v. Myers, 2 Md. Ch., 401; Wadsworth v. Manning, 4 Md., 59; Clarke v. Rochester, etc., R.R. Co., 18 Barb., 350 ; Wright v. Wright, 31 Mich., 380 ; Odell v. Morin, 5 Oregon, 96 ; Mehl v. Von der Wulbeke, 2 Lans., 267 ; Foot v. Webb, 59 Barb., 38 ; Munsell v. Loree, 21 Mich., 491 ; McClintock v. Laing, 22 lb., 212 ; Allen V. Webb, 64 111., 342 ; Buckmaster v. Thompson, 36 N. Y., 558 ; Bowman v. Cunningham, 78 111., 48 ; Schmeling v. Kriesel, 45 Wis., 325. An objection, however, to a contract on the ground that it is lacking in certainty, will be enter- tained with reluctance when the contract has been partly performed, and the plaintiff can only be fully compensated by performance in specie. ^ Coles V. Bowne, 10 Paige Ch., 526. 200 INCOMPLETENESS, ETC., OF CONTRACT. § 1 53. iias even been held that where one of them proves that he understood the agreement in a different sense from the other, the court will decline to interfere, without consider- in